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.