‘Iqbal Effect’ on housing, employment cases skews Republican: new study

By Alison Frankel
May 16, 2013

In 2007, the U.S. Supreme Court redefined the pleading standard for antitrust suits in Bell Atlantic v. Twombly. In 2009, it extended the new standard to all civil cases in Ashcroft v. Iqbal. Since then, according to Westlaw,Twombly has been cited as a reference 191,394 times and Iqbal, 123,714. A lot of those citations in judicial opinions are boilerplate, but that very fact tells you how important Twombly and Iqbal have become. Judges now reflexively apply the Iqbal standard – which directs them to use their judicial experience and common sense to decide whether a plaintiff’s allegations are plausible, not merely conceivable – in deciding whether to dismiss complaints.

The big question in the post-Iqbal era has always been whether the discretion the Supreme Court gave to trial judges would affect not just dismissal rates but also the kinds of cases that are dismissed. Civil rights advocates, in particular, worried that judges who were politically inclined toward skepticism about their claims would use Iqbal to justify dismissing their suits. The overall impact of the new pleading standard continues to be debated in legal academia, but a soon-to-be-published study in the Akron Law Review suggests that Iqbal’s impact on civil rights cases has, in fact, skewed politically.

The study, “The Politics of Procedure: An Empirical Analysisof Motion Practice in Civil Rights Litigation Under the New Plausibility Standard,” looked at 548 employment and housing discrimination suits filed between 2004 (before Twombly) and 2010 (after Iqbal) – all such cases in which there was a reported dismissal decision. Albany Law School professor Raymond Brescia, one of the co-authors, had previously analyzed Iqbal’s impact on dismissal rates in those 548 cases, reaching the somewhat surprising conclusion that dismissals with prejudice increased at only a slight rate after Iqbal. That previous paper, by its own admission, called for refined analysis, so Brescia and student Edward Ohanian re-examined dismissal rates, taking into account such factors as the judge’s race, gender and, as a proxy for political views, appointment by Democratic or Republican presidents.

The study’s most significant finding, Brescia told me in an interview, was in the political category. Overall, between 2004 and the Twombly decision, judges dismissed 62 percent of all employment and housing discrimination cases in which the specificity of the pleadings was challenged. Between Twombly and Iqbal, the overall dismissal rate was 56 percent. After Iqbal it rose to 71 percent. (Weirdly, Brescia said, several studies have found across-the-board dips in dismissal rates in the two years between Twombly and Iqbal.)

But when the study broke down the numbers by parties, Brescia and Ohanian found that the change in dismissal rates was only significant for Republican appointees, not for judges appointed by Democrats. Democratic appointees, who issued rulings in 246 cases, dismissed 64 percent of discrimination suits they reviewed from 2004 until Twombly, 58 percent between Twombly and Iqbal, and 67 percent after Iqbal. The differences in those rates, according to the study, was not statistically significant. Republican appointees, on the other hand, dismissed 61 percent of the cases in the years leading up to Twombly, 54 percent between Twombly and Iqbal, and 74 percent after Iqbal.

That 21 percent jump in dismissal rates in cases decided by Republican appointees between the pre-Twombly and post-Iqbal eras was statistically significant, according to the study. “The outcomes in Twombly and Iqbal would appear to have had a statistically significant impact on the decisions on motions challenging the specificity of the pleadings on judges nominated by Republican presidents,” the paper said.

Brescia took care not to overstate the results. He said in the paper’s concluding discussion that the differences between Democratic and Republican appointees were “not stark,” and that judges “seem to be ignoring” the Supreme Court’s directive that they assess plausibility based on their experience. The paper also conceded that more research is needed on possible political discrepancies in dismissal rates for other kinds of cases, and for cases filed after 2010.

Nevertheless, “the fact that all judges – regardless of the party affiliation of the president who nominated them – appear to be dismissing more civil rights cases under Twombly and Iqbal then they did before their issuance, and that judges nominated by Republican presidents seem to be dismissing such cases at a higher rate,” the paper said, “suggests that trial courts see these precedents as license to dismiss civil rights cases more frequently.”

Brescia concluded the paper (and our discussion of it) by hearkening back to the nomination hearing of Chief Justice John Roberts, in which Roberts compared the role of a Supreme Court justice to that of a baseball umpire calling balls and strikes. Procedural rules, whether they govern the strike zone or pleading standards, are supposed to be applied neutrally and universally. When there’s reason to doubt that they are, that’s reason to worry.

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