Material Facts in the Debate Over Twombly and Iqbal

This Article presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions. Using nearly 2000 randomly selected employment discrimination and contract cases, the Article tries to assess the performance of Twombly and Iqbal, which raised the federal pleading standard, in filtering cases according to merit. This Article begins by explaining how such data might be helpful in making such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal. This Article ultimately concludes that even using this large collection of data—the most comprehensive data assembled to date on the subject—it is not possible to determine whether “Twiqbal1’s” supporters or critics are more accurate in their assessments of the * Associate Professor, University of Pennsylvania Law School. This Article is based on data collected with the assistance of the Searle Civil Justice Institute (SCJI) and the Law and Economics Center (LEC) at George Mason University. An early version of the results was posted as a policy report, of which I was the primary author, as SEARLE CIVIL JUSTICE INST., GEORGE MASON UNIV. SCH. OF LAW, MEASURING THE EFFECTS OF A HEIGHTENED PLEADING STANDARD UNDER TWOMBLY AND IQBAL (2013), http://www .masonlec.org/programs/46. I am grateful to the SCJI at the George Mason University LEC for its generous financial support of this project as well as for providing coders. I am also grateful for the many helpful comments I received from the judges, practitioners, and academics on the SCJI Board of Overseers, participants in the SCJI research workshop at George Mason University School of Law, and two anonymous referees provided by the LEC. I also thank Rita Choi for help managing early data collection and James Cooper for his management expertise and intellectual support for my work on this project, as well as current and former GMU School of Law students Dale Baker, Josh Branson, Corey Carpenter, Wei Fan, Patrick Vincent, and Chris Woolley, and current and former University of Pennsylvania Law School students Meredith Gage, Gary Ho, Jonathan Kaplan, James Klima, and Jonelle Saunders for all their hard work coding cases. In addition, this project could not have been completed without the data (and helpful discussions concerning it) provided by Thomson Reuters, nor the generous financial support in acquiring those data that was provided by the Oscar M. Ruebhausen Fund at the Yale Law School. I am also very grateful to Yale Law School’s William N. Eskridge and Dean Robert C. Post for their enthusiastic support in acquiring these data. Finally, I had many valuable conversations with legal scholars too numerous to name; at the risk of offending those left out, I offer special thanks to Steve Burbank, Henry Butler, Joe Cecil, David Engstrom, Eric Helland, William Hubbard, Daniel Klerman, Jon Klick, Bruce Kobayashi, Alan Morrison, and Joshua Wright. Volume 68 February 2016 Stanford Law Review Material Facts in the Debate over Twombly and Iqbal 68 STAN. L. REV. 369 (2016) 370 efficacy of the new plausibility pleading regime with respect to its ability to filter cases according to merit at the prediscovery stage. This null result points to the very real possibility that plausibility pleading’s case-quality effects—a quintessential empirical question—simply cannot be answered using data. This Article’s basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal.