The effects of Twiqbal

The Supreme Court's decisions in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), heightened the standard for fact pleading in federal court. These cases were generally understood to mean that plaintiffs would have to plead facts more specifically than they had been to avoid dismissal of their federal-court complaints. So, these decisions seemed like bad news for "little guy" federal-court plaintiffs. Have these cases actually had an impact on lawyers' conduct or judges' decisions? In a preliminary study entitled The Empirical Effects of Twombly and Iqbal, law professor William Hubbard says "not really," except perhaps for plaintiffs without lawyers. Here is the abstract:

Ever since Twombly and Iqbal introduced the doctrine of plausibility pleading, a cottage industry of legal scholars (including myself) has undertaken to detect the effects of Twombly and Iqbal on litigants and case outcomes. Results so far have been equivocal, and it has been hard to make sense of the disparate methodologies and findings. In this paper, I develop a comprehensive framework for empirically testing the effect of Twombly and Iqbal on lower courts and litigants, taking into account a wide range of confounding factors and the numerous ways in which Twombly and Iqbal may have indirectly affected litigant behavior. Using this framework, I test for effects of Twombly and Iqbal on district court and litigant behavior using two datasets — one of administrative data, one of docket and complaint data — each of which, when this project is complete, will be the largest database of its kind ever compiled. I also review existing findings. Based on preliminary analyses, which are subject to revision as additional data is gathered, I find virtually no evidence that Twombly and Iqbal, the two most important pleading cases in 50 years, have had a major effect on the behavior of lawyers and judges across all cases. Rates of dismissal with prejudice have held steady, motions to dismiss remain uncommon, and settlement and filing patterns have not changed appreciably in the wake of Twombly and Iqbal. There is, however, some evidence of changes in the drafting of pleadings and a greater effect on pro se plaintiffs.



Leave a Reply

Your email address will not be published. Required fields are marked *