The costs of heightened pleading

Indiana Law Journal

Volumn 86, Issue 1, 2011, Pages 119-184

  Reinert, Alexander A ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 79951843532     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (364)

1. 550 U. S. 544 (2007).
2. 129 S. Ct. 1937 (2009).
3. 355 U. S. 41 (1957).
4. Twombly, 550 U. S. at 560-63 (reviewing criticisms of Conley and concluding that expansive language of the case "has been questioned, criticized, and explained away long enough").
5. Iqbal, 129 S. Ct. at 1950 (explaining that in determining whether a complaint is "plausible", judges may rely on their "judicial experience and common sense").
6. Id. at 1949-50 (stating that "conclusory" allegations are those that simply mirror the requirements of a cause of action).
7. Id. at 1954 (interpreting Federal Rule of Civil Procedure 9 (b) to require more than "general" allegations for state of mind even where neither fraud nor mistake is alleged). The Iqbal Court's interpretation of Rule 9 (b) is arguably at odds with the Advisory Committee Note to Rule 9.
8. See FED. R. CIV. P. 9 advisory committee's note
9. (citing ENGLISH RULES UNDER THE JUDICATURE ACT (The Annual Practice, 1937) O. 19, r. 22).
10. The English rules cited by Rule 9 state that when a plaintiff makes allegations as to any "condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred." Jeff Sovern, Reconsidering Federal Civil Rule 9 (b): Do We Need Particularized Pleading Requirements in Fraud Cases?, 104 F. R. D. 143, 146 n. 19 (1985).
11. Moreover, as some courts have recognized, the Iqbal Court's treatment of Rule 9 (b) is in some tension with its prior decision in Swierkiewicz v. Sorema N. A., 534 U. S. 506 (2002).
12. See, e.g., Fowler v. Univ. of Pittsburgh Med. Ctr. Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009);
13. Brown v. Castleton State Coll., 663 F. Supp. 2d 392, 403 n. 8 (D. Vt. 2009);
14. *7 (E. D. Mich. Oct. 30, 2009) (stating that tension between Swierkiewicz and Iqbal has yet to be resolved).
15. See Iqbal, 129 S. Ct. at 1950 (advising courts to rely on their "judicial experience and common sense" to determine the plausibility of a claim).
16. Pleading standards obviously apply to all parties. Defendants sometimes bring counter-, cross-, or third-party claims, and as such may face the burden of overcoming heightened pleading standards. Indeed, many courts have applied the Iqbal standard to strike affirmative defenses included by defendants in their answers.
17. *6 n. 3 (E. D. Va. July 29, 2010) (collecting cases). But in this paper I will use "plaintiff" to refer generally to anyone who brings a claim that is subject to a particular pleading standard.
18. See Iqbal, 129 S. Ct. at 1950.
19. Compare, e.g., Smith v. Duffey, 576 F.3d 336, 340 (7th Cir. 2009) (panel decision by Posner, J.)
20. (describing Iqbal as "special in its own way" and suggesting that it should be limited to cases in which there are concerns about the burdens of discovery), with Fowler, 578 F.3d at 210-11
21. (emphasizing breadth of Iqbal and suggesting that it overruled sub silentio Swierkiewicz, 534 U. S. at 506).
22. To be fair, the Supreme Court itself stated that it did not consider Twombly or Iqbal to break significant new ground, see Iqbal, 129 S. Ct. at 1949-50;
23. Bell Atl. Corp. v. Twombly, 550 U. S. 544, 563 n. 8 (2007), and some lower courts seem to be taking the Court at its word.
24. *3 (E. D. N. Y. Feb. 5, 2010);
25. Rouse v. Berry, 680 F. Supp. 2d 233, 236 (D. D. C. 2010);
26. Desrouleaux v. Quest Diagnostics, Inc., No. 09-61672-CIV, 2009 WL 5214964 (S. D. Fla. Dec. 29, 2009);
27. *3 (S. D. N. Y. Sept. 18, 2009).
28. The dissenters in Iqbal took a sharply different view, see Iqbal, 129 S. Ct. at 1959-61 (Souter, J., dissenting), and many lower courts have explicitly acknowledged the significant difference between adjudicating pleading motions before and after these decisions.
29. See Young v. City of Visalia, 687 F. Supp. 2d 1141, 1144-46, 1149 (E. D. Cal. 2009)
30. (interpreting Iqbal to overturn Ninth Circuit pleading precedent for constitutional claims against municipalities);
31. *8 (E. D. Cal. Aug. 6, 2009) (questioning whether, after Iqbal, the Federal Rules of Civil Procedure form complaints are still sufficient);
32. *10 (N. D. Cal. July 27, 2009) (criticizing the demanding nature of Iqbal standard);
33. *4 (N. D. Ohio July 16, 2009) (describing Iqbal as imposing a heightened pleading standard);
34. *1 (W. D. Wis. June 29, 2009) (describing Iqbal as "implicitly overturn[ing] decades of circuit precedent in which the court of appeals had allowed discrimination claims to be pleaded in a conclusory fashion").
35. The Judicial Conference Advisory Committee on Civil Rules made Iqbal a central point of discussion for its May 2010 Civil Litigation Conference at Duke Law School. Press Release, Federal Judiciary, May Conference to Be First of Its Kind to Look at Civil Litigation in Federal Courts (Apr. 12, 2010), available at http://www.uscourts.gov/News/NewsView/10-04-12/May-Conference-to-Be-First-of- Its-Kind-to-Look-at-Civil-Litigation-in-Federal-Courts.aspx. and the Civil Rules Advisory Committee, while it considers the ramifications of the Supreme Court's recent shift in pleadings jurisprudence, has been keeping diligent track of the lower court cases citing Iqbal and Twombly, as well as the dismissal rates pre-and post-Iqbal and Twombly.
36. See Memorandum from Andrea Kuperman to Civil Rules Committee (July 26, 2010), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/ Iqbal-memo-072610.pdf;
37. Statistics Div., Admin. Office of the U. S. Courts, Motions to Dismiss, FED. RULEMAKING, U. S. COURTS, http://www.uscourts.gov/uscourts/ RulesAndPolicies/rules/Motions-to-Dismiss-081210.pdf (last modified Sept. 17, 2010).
38. See Open Access to Courts Act of 2009, H. R. 4115, 111th Cong. § 2 (2009);
39. Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. § 2 (2009). These bills seek to ensure that pre-Twombly pleading rules govern Rule 8 standards.
40. At least one respected commentator has suggested that Iqbal and Twombly are not necessarily as consequential as most academics seem to believe. Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473 (2010) (arguing for limited reading of Twombly and Iqbal).
41. Those who support the rule applied in Iqbal and Twombly offer a variety of justifications. See Andrew Blair-Stanek, Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery, 62 FLA. L. REV. 1 (2010) (arguing that the plausibility standard is a natural extension of procedural due process jurisprudence);
42. Scott Dodson, Comparative Convergences in Pleading Standards, 158 U. PA. L. REV. 441 (2010) (arguing that Iqbal and Twombly conform to the pleading standards in practice outside the United States);
43. Max Huffman, The Necessity of Pleading Elements in Private Antitrust Conspiracy Claims, 10 U. PA. J. BUS. & EMP. L. 627, 641-43 (2008) (defending Twombly on notice grounds, the high costs of discovery, and concern over permitting "false positives" to proceed past the pleading stage);
44. Keith N. Hylton, When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards, 16 SUP. CT. ECON. REV. 39, 50-53 (2008)
45. (constructing an economic model to suggest that pleading standards are useful mediators of merit and defending Twombly under this framework); Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal, 14 LEWIS & CLARK L. REV. 279, 303-05 (2010)
46. (suggesting that Iqbal is a useful bar to certain constitutional claims); Douglas G. Smith, The Evolution of a New Pleading Standard: Ashcroft v. Iqbal, 88 OR. L. REV. (forthcoming 2010), available at http://ssrn.com/abstract=1463844 (maintaining that Iqbal will help to screen meritless cases that would otherwise settle because of discovery costs);
47. see also Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J. L. & POL'Y 61, 98-99 (2007) (defending Twombly to the extent that it is limited to a small subset of cases where there is heightened concern for weak or frivolous cases).
48. But see Stephen B. Burbank, Pleading and the Dilemmas of "General Rules", 2009 WIS. L. REV. 535, 558 (suggesting that a court concerned with the particular defense of qualified immunity has the power to impose fact pleading as a matter of substantive federal law, but arguing against it).
49. Critics of Iqbal and Twombly, like supporters, approach the cases from many different perspectives. See Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 NOTRE DAME L. REV. 849 (2010) (maintaining that Iqbal has extended the plausibility analysis of Twombly in a dangerous direction);
50. Edward D. Cavanagh, Twombly, The Federal Rules of Civil Procedure and the Courts, 82 ST. JOHN'S L. REV. 877, 879 (2008) (criticizing the change in pleading as a matter of process and questioning the Court's assumption that lower courts and parties cannot manage discovery costs);
51. Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821 (2010) (suggesting that both cases be reconsidered because of their destabilizing effect and their inconsistency with the process of amending the Federal Rules);
52. Kevin M. Clermont, Litigation Realities Redux, 84 NOTRE DAME L. REV. 1919, 1932-34 (2009) (stating that in Twombly, the Court acted "with no empirical support that a problem existed, and with no exploration of the dimensions of that problem or the efficacy of the Court's newfangled cure");
53. Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, 88 NEB. L. REV. 261, 262 (2009) (suggesting that Iqbal's pleading rule violates the Seventh Amendment right to a jury trial);
54. Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. PA. L. REV. 517 (2010) (detailing the burden that the new pleading standard will impose on civil rights and employment discrimination plaintiffs);
55. A. Benjamin Spencer, Plausibility Pleading, 49 B. C. L. REV. 431, 460-86 (2008)
56. (criticizing Twombly on numerous grounds, including for imposing a standard that would screen out meritorious as well as meritless claims); Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 LEWIS & CLARK L. REV. 15 (2010) (arguing that the cases move the summary judgment inquiry to the pleading stage).
57. See Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 LEWIS & CLARK L. REV. 65, 85-101 (2010)
58. (detailing the potential impact of Iqbal on civil rights cases); Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 LEWIS & CLARK L. REV. 157, 166-69 (2010) (describing tension between liberal pleading rules and the burdens imposed by substantive civil rights law).
59. In 2007, state courts received about eighteen million civil filings, an increase of about 800, 000 cases from 2006. NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK of STATE COURTS: AN ANALYSIS of 2007 STATE COURT CASELOADS 1 (2009). Financial disputes over money (primarily contract and small claims cases) comprised about 70% of the civil caseload in state courts.
60. Id. In seven representative states, about 6% of civil filings were tort actions and 16% were probate filings.
61. Id. at 2. It is fair to conclude that the vast majority of the work of state courts involves resolution of disputes between private parties on both sides of the litigation. Cases filed in federal court are much more likely to involve government parties either as plaintiffs or defendants, although federal filings are miniscule compared to state court filings. For instance, out of 276, 937 civil cases filed in United States District Courts between October 2008 and September 2009, perhaps half may have involved government parties: 8, 834 cases in which the United States was a plaintiff; 34, 310 cases in which the United States was a defendant; 273 cases that involved a challenge to the constitutionality of a state statute; 41, 000 cases that involved petitions by state prisoners; and about 34, 000 cases classified as civil rights, some portion of which might involve state defendants.
62. ADMIN. OFFICE of THE U. S. COURTS, 2009 ANNUAL REPORT of THE DIRECTOR: JUDICIAL BUSINESS of THE UNITED STATES COURTS 141-43 tbl. C-2 (2010), available at http://www.uscourts.gov/Statistics/JudicialBusiness/JudicialBusiness.aspx? doc=/uscourts/Statistics/JudicialBusiness/2009/JudicialBusinespdfversion.pdf.
63. Commentators now commonly characterize pleading, like summary judgment or Daubert determinations, as having a "gatekeeping" function. See Clermont, supra note 16, at 1932; Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power over Pleadings, 88 B. U. L. Rev. 1217, 1224 (2008);
64. Schneider, supra note 16, at 527;
65. Emily Sherwin, The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson, 52 HOW. L. J. 73, 94 (2008).
66. See Epstein, supra note 15, at 68-72; Douglas G. Smith, The Twombly Revolution?, 36 PEPP. L. REV. 1063, 1094-95 (2009) (framing heightened pleading as a necessary balance to the high costs of discovery).
67. But see John P. Sullivan, Twombly and Iqbal: The Latest Retreat from Notice Pleading, 43 SUFFOLK U. L. REV. 1, 61 (2009) (criticizing the discovery abuse justification).
68. See Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 1060 (2003).
69. The Twombly Court made clear that, precisely because of the high costs of discovery in antitrust actions, it made sense to weed out "anemic" cases through pleading rules rather than other case management devices. Bell Atl. Corp. v. Twombly, 550 U. S. 544, 559-60 (2007).
70. and in Iqbal, the Court was unwilling to "unlock the doors of discovery" to plaintiffs who had "nothing more than conclusions" to verify the merit of their claim. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
71. By contrast, the notice pleading standard articulated in Conley was famously agnostic on the ultimate merit of any particular claim. See Conley v. Gibson, 355 U. S. 41, 45-47 (1957)
72. (asking whether a claim would lie if allegations were proven and rejecting the argument that a complaint requires factual detail); see also Neitzke v. Williams, 490 U. S. 319, 327 (1989)
73. ("Rule 12 (b) (6) does not countenance... dismissals based on a judge's disbelief of a complaint's factual allegations."). Indeed, to the extent that Congress has relied on heightened pleading in particular kinds of cases, such as securities fraud cases, it has based that reliance on the assumption that heightened pleading standards can reduce meritless cases without deterring valid ones. See Stephen J. Choi, Do the Merits Matter Less After the Private Securities Litigation Reform Act?, 23 J. L. ECON. & ORG. 598, 600 (2007) (concluding that despite Congress's intent the PSLRA likely deterred the filing of a substantial number of meritorious cases). Nonetheless, the academic commentary regarding Iqbal and Twombly has routinely accepted the assumption that heightened pleading will mostly work to filter out meritless cases, not prematurely terminate valid ones.
74. See Blair-Stanek, supra note 15, at 22-23 (maintaining that plaintiff's interest in cases like Twombly is minimal because it is unlikely plaintiff has a valid claim); Dodson, supra note 15, at 465 (citing efficiency goals as one justification for fact pleading); Geoffrey P. Miller, Preliminary Judgments, 2010 U. ILL. L. REV. 165, 167 (listing heightened pleading as one approach for filtering "weak or frivolous cases");
75. Smith, supra note 20, at 1067;
76. Paul Stancil, Balancing the Pleading Equation, 61 BAYLOR L. REV. 90, 169 (2009) (suggesting that for certain kinds of cases heightened pleading can "reduce the cost disparities that can sometimes induce plaintiffs to file frivolous claims").
77. See Twombly, 550 U. S. at 560 (cost of discovery);
78. Dura Pharm., Inc. v. Broudo, 544 U. S. 336, 347 (2005) (expressing concern over abuse of discovery);
79. Fairman, supra note 21, at 1059-60 (describing concern with frivolous cases imposing burdensome discovery as a principal judicial justification for heightened pleading);
80. Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 436 (1986) (suggesting that heightened pleading is a response to litigation pressure and that there is a limited but valid place for using pleading to address the merits of particular kinds of litigation). Even those who are critics of Iqbal's extension of Twombly are swayed, in part, by the idea that heightened pleading may be good medicine for certain kinds of cases.
81. See Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873 (2009) (arguing that there are some normative arguments in favor of limiting thin pleading, but adoption of rules that depart from notice pleading should be consistent with the statutory or rulemaking process and should be carefully tailored based on particular categories of cases).
82. See, e.g., Epstein, supra note 15, at 98-99 (arguing for a limited role of the Twombly pleading standard, where there is heightened concern for weak or frivolous cases);
83. Marcus, supra note 23, at 436;
84. A. Benjamin Spencer, Understanding Pleading Doctrine, 108 MICH. L. REV. 1, 18, 22 (2009) (acknowledging that the plausibility standard, "at least as stated", vindicates the efficiency interest in screening out cases based on their likelihood of merit). as Spencer recognizes, however, there are other interests at stake in pleading, and plausibility pleading risks undermining those other interests. Spencer, supra, at 24-25.
85. See Marcus, supra note 23, at 444-51 (describing the revival of "fact pleading").
86. See Choi, supra note 22.
87. See Herbert A. Eastman, Speaking Truth to Power: The Language of Civil Rights Litigators, 104 YALE L. J. 763, 795 (1995) (questioning, from the perspective of client representation and narrative, use of "thin" pleadings in civil rights cases).
88. See Clermont, supra note 16, at 1930-31 (observing that despite the longstanding controversy over pleading, there are no empirical studies "whatsoever on the virtues of case exposition through pleading");
89. see also Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749, 1754, 1759-61 (1998) (finding a dearth of evidence related to the ultimate resolution of 12 (b) (6) dismissals on appeal).
90. E.g., Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 429, 431, 453-56 (2004) (referring to debates about employment discrimination litigation).
91. Spencer, supra note 24, at 24 ("[I]t is unknowable whether a dismissed claim was nonetheless meritorious in an absolute sense.").
92. As discussed below, even before Iqbal and Twombly, lower courts did not always hew to the most expansive reading of Conley. See infra notes 49-53 and accompanying text.
93. As Kevin Clermont and Stephen Yeazell have observed, there is a marked difference, at least philosophically if not practically, between the plausibility pleading standard adopted by the Court in Twombly and Iqbal and the heightened fact pleading regime which was often trotted out as an alternative to Conley's notice pleading regime in the 1990s. See Clermont & Yeazell, supra note 16, at 832-33. These differences are not material, however, to the data reported here, because both plausibility and detailed fact pleading regimes would operate to make thinly pleaded complaints more likely to be dismissed.
94. See id. at 833 ("Because plausibility requires the plaintiff to plead particularized facts and maybe even some evidence, the federal pleading product will usually not look much different from a complaint in a heightened-fact-pleading regime.").
95. See Marcus, supra note 23, at 438-40.
96. FED. R. CIV. P. 8.
97. The goal of the Federal Rules was to create both simplicity and uniformity in pleading and to prevent premature dismissals.
98. See Marcus, supra note 23, at 439 ("Rule 8 (a) (2) was drafted carefully to avoid use of the charged phrases 'fact,' 'conclusion,' and 'cause of action. '").
99. E.g., Fairman, supra note 21, at 990-91;
100. see also Sherwin, supra note 19, at 76-77 (summarizing history of pleading standards and functions from medieval origins onward). For an overall history of the Federal Rules
101. see generally Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909 (1987).
102. 355 U. S. 41 (1957).
103. Id. at 48.
104. Id. at 47.
105. See Sherwin, supra note 19, at 78-83 (framing the issue as a debate between Legal Realists and legal formalists).
106. Brief for Respondents Pat J. Gibson, et. al. at 26
107. *26;
108. see Sherwin, supra note 19, at 89-90;
109. see also Petitioner's Brief, Conley v. Gibson, 355 U. S. 41 (1957) (No. 7), 1957 WL 87661.
110. See Memorandum from Justice John M. Harlan to Justice Hugo Black (Nov. 13, 1957) (on file with the author and available from the Collections of the Manuscript Division, Library of Congress, Washington, D. C.);
111. Memorandum from Justice William J. Brennan to Justice Hugo Black (Nov. 15, 1957) (on file with the author and available from the Collections of the Manuscript Division, Library of Congress, Washington, D. C.). as a result of these suggestions, it appears that the following sentence was deleted from the penultimate paragraph of the decision: "Under the Rules the best cause, not the cleverest pleader, is to prevail."
112. See Printed and Circulated Draft Opinion (1st) at 7, Conley v. Gibson, 355 U. S. 41 (1957) (circulated Nov. 13, 1957) (on file with the author and available from the Collections of the Manuscript Division, Library of Congress, Washington, D. C.). The aspect of the draft that highlighted the minimum requirements imposed by Rule 8 was retained, however.
113. See Conley, 355 U. S. at 47.
114. Conley, 355 U. S. at 45-46.
115. Christopher Fairman has argued that notice pleading has rarely been the rule, at least in practice, pointing to examples from antitrust, RICO, environmental, civil rights, intellectual property, and defamation cases, among others, in which lower courts have constructed a variety of heightened pleading standards.
116. See Fairman, supra note 21, at 998-1011 (summarizing different categories of heightened pleading).
117. See Swierkiewicz v. Sorema N. A., 534 U. S. 506, 512-13 (2002) (explaining that discovery and summary judgment, not heightened pleading requirements, are the proper means for disposal of unmeritorious suits);
118. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U. S. 163, 168 (1993) (stating that the heightened pleading standard for § 1983 claims against municipalities is "impossible to square... with the liberal system of 'notice pleading' set up by the Federal Rules");
119. see also Crawford-El v. Britton, 523 U. S. 574, 595 (1998) ("[O]ur cases demonstrate that questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process.").
120. Swierkiewicz, 534 U. S. at 514-15;
121. Leatherman, 507 U. S. at 168.
122. Swierkiewicz, 534 U. S. at 515.
123. Id. (quoting Leatherman, 507 U. S. at 168).
124. 459 U. S. 519, 528 n. 17 (1983).
125. Fairman, supra note 21, at 1013-14;
126. see id. at 1013-14 nn. 173-78.
127. 500 U. S. 226 (1991).
128. Id. at 235-36 (Kennedy, J., concurring);
129. see also Fairman, supra note 21, at 997 & nn. 79-81 (summarizing aspects of the Court's jurisprudence in which commitment to notice pleading wavered).
130. At various times, some circuit courts adopted heightened pleading standards in civil rights cases. E.g., Lee v. City of los Angeles, 250 F.3d 668, 679 (9th Cir. 2001);
131. Breidenbach v. Bolish, 126 F.3d 1288 (10th Cir. 1997);
132. Veney v. Hogan, 70 F.3d 917 (6th Cir. 1995);
133. Kartseva v. Dep't of State, 37 F.3d 1524 (D. C. Cir. 1994);
134. Babb v. Dorman, 33 F.3d 472 (5th Cir. 1994);
135. Williams v. Ala. State Univ., 865 F. Supp. 789 (M. D. Ala. 1994)
136. rev'd on other grounds, 102 F.3d 1179 (11th Cir. 1997). By the time that Twombly was announced, however, most circuit courts had recognized that their heightened pleading standards could not survive the Supreme Court's decisions in Leatherman, Crawford-El
137. and Swierkiewicz. E.g., Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004) (noting that the Fifth Circuit's heightened pleading standard for qualified immunity cases had been overruled in 1995);
138. Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002) (overruling cases which applied heightened pleading standard to civil rights claims);
139. Goad v. Mitchell, 297 F.3d 497, 502 (6th Cir. 2002) (overruling Veney in light of Crawford-El);
140. Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001) (overruling Breidenbach in light of Crawford-El);
141. Kimberlin v. Quinlan, 199 F.3d 496, 499 (D. C. Cir. 1999) (noting that Crawford-El rejected the D. C. Circuit's heightened pleading standard).
142. But see Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (continuing to apply heightened pleading to civil rights claims). Ironically, the Eleventh Circuit has interpreted Iqbal to reject a heightened pleading standard for civil rights claims.
143. Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).
144. Bell Atl. Corp. v. Twombly, 550 U. S. 544, 559-60 (2007).
145. Conley v. Gibson, 355 U. S. 41, 45-46 (1957);
146. Twombly, 550 U. S. at 561-63.
147. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
148. Id.
149. Id.
150. Under Rule 9 (b), "conditions of a person's mind may be alleged generally." FED. R. CIV. P. 9 (b).
151. Iqbal, 129 S. Ct. at 1949-50.
152. Id. at 1950.
153. Id.
154. See Conley v. Gibson, 355 U. S. 41, 47-48 (1957).
155. See Iqbal, 129 S. Ct. at 1937;
156. Bell Atl. Corp. v. Twombly, 550 U. S. 544 (2007).
157. For example, there is a broad dispute over whether "general" allegations of state of mind are sufficient on their own.
158. Compare, e.g., Brenes-Laroche v. Toledo Davila, 682 F. Supp. 2d 179, 187-88 (D. P. R. 2010) (general allegations of defendants' state of mind found sufficient);
159. *1 (D. Or. Dec. 28, 2009) (general allegations assumed to include specific facts necessary to support them);
160. *6- 9 (D. N. J. Nov. 10, 2009) (general allegations may be sufficient in deliberate indifference context.), with
161. First Med. Health Plan, Inc. v. CaremarkPCS Caribbean, Inc., 681 F. Supp. 2d 111, 117-20 (D. P. R. 2010) (general allegation of state of mind insufficient);
162. *5 n. 2 (W. D. Tex. Aug. 14, 2009) (allegation that defendants acted with deliberate indifference is conclusory). Courts also differ over whether an allegation that a defendant "knew" or was "aware" of a particular fact is conclusory or factual.
163. *4 (M. D. Pa. Jan. 12, 2010) (plaintiff's allegation that the superintendent "failure to take action to curb Inmate Mitchell's pattern of assaults, known or should have been known to [him], [and] constituted deliberate indifference" is conclusory (alterations in original) (internal quotation marks omitted));
164. Smith v. Dist. of Columbia, 674 F. Supp. 2d 209, 211-13 (D. D. C. 2009) (allegation that District "knew of" specific systemic problems with medical care in prisons was conclusory);
165. *6 (E. D. Mich. Oct. 30, 2009) (allegation of defendant's awareness insufficient without some statement of source of awareness);
166. *6 (D. Me. Oct. 20, 2009) (in Eighth Amendment case, allegation of supervisor's knowledge of and indifference to lack of adequate life-saving equipment and training was conclusory);
167. *4 (W. D. Mich. June 26, 2009) (allegation that defendants were "aware" of plaintiff's medical condition insufficient to state claim for deliberate indifference)
168. with Mallinckrodt Inc. v. E-Z-Em Inc., 671 F. Supp. 2d 563, 569 (D. Del. 2009) (in patent case, the plaintiff satisfied the pleading standard for an infringement claim by alleging that defendant "became aware" of patent "shortly after" its issuance and that defendants "actively induced" infringing acts);
169. *4 (M. D. Pa. Nov. 25, 2009) (allegation that defendants "knew or should have known of plaintiff's right to express himself in such a manner" was sufficient to support failure to train claim in First Amendment Monell case (internal quotation marks omitted));
170. *5 (M. D. N. C. Nov. 4, 2009) (Fourth Amendment claim sufficient where complaint alleged that "Defendant Robinson... arrested Plaintiff without probable cause and that Defendants knew there was no probable cause");
171. *4 (C. D. Ill. Aug. 20, 2009) (allegation of sheriff's knowledge that he had housed plaintiff with a violent inmate was not conclusory);
172. *3 (N. D. Fla. July 2, 2009) (allegation of sheriff's knowledge of deputy's propensity for sexual assault was not conclusory);
173. *5-7 (N. D. Ind. June 30, 2009) (allegation that county council was on notice that jail was inadequately funded and understaffed, and that another inmate had died because of inadequate medical care, sufficient to state § 1983 claim based on inadequate funding). Limitations of space and time prevent me from providing all of the examples of the differing interpretations
174. See Choi, supra note 22, at 603.
175. See Civil Rules Advisory Committee Minutes 37-38 (May 22-23, 2006), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/ CV05-2006-min.pdf;
176. Civil Rules Advisory Committee Minutes 30 (Oct. 27-28, 2005), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/CV11-2005- min.pdf. Indeed, the Advisory Committee's reference to the possibility of emphasizing "the often forgotten words: 'showing that the pleader is entitled to relief'" eerily foreshadows the Supreme Court's own heightened attention to those words in Iqbal.
177. Compare Civil Rules Advisory Committee Minutes 31 (Oct. 27-28, 2005), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/ CV11-2005-min.pdf
178. with Iqbal, 129 S. Ct. at 1950 (finding a difference between alleging an entitlement to relief and "showing" such an entitlement).
179. Choi, supra note 22. Choi's study does not purport to determine the outcome of thinly pleaded cases; rather, it uses publicly available information to estimate the degree to which the Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 U. S. C.), has deterred the filing of valid securities fraud cases.
180. See Spencer, supra note 24, at 24.
181. See Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. 553, 556 (2010) (estimating that motions to dismiss were four times more likely to be granted after Iqbal as they were during the Conley era, after controlling for relevant variables);
182. Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. ILL. L. REV. 1011, 1014 (showing effect of Twombly standard on published opinions regarding employment discrimination cases);
183. Kendall W. Hannon, Note, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12 (b) (6) Motions, 83 NOTRE DAME L. REV. 1811, 1837 (2008) (reporting a civil rights dismissal rate of 41.7% under the pre-Twombly standard and 52.9% under Twombly, using only reported cases between 2006 and 2007);
184. Statistics Div., Admin. Office of the U. S. Courts, supra note 12.
185. At last count, Iqbal had been cited in more than fourteen thousand decisions, but this does not tell us much about its impact. After all, most courts are presumably citing Iqbal because it is the most recent Supreme Court decision addressing pleading.
186. By "false negative", I mean only that the dismissing body incorrectly assessed the ultimate merit of the complaint. I recognize that most advocates of heightened pleading do not explicitly maintain that courts should be judging the merits of a case at the pleading stage; however, as described above, most heightened pleading supporters assume that it will be most effective in dismissing cases that have no merit.
187. See supra text accompanying notes 19-23.
188. This was the instinct of an experienced judge from the Northern District of Illinois who, during an oral argument of a motion to dismiss, expressed the view that defense counsel were overstating Iqbal.
189. See Transcript of Proceedings Before the Honorable Milton I. Shadur at 2, Madison v. City of Chicago, No. 09 C 3629 (Aug. 10, 2009). Judge Shadur also has referred to the defense bar's penchant for summary judgment motions as "Pavlovian", so perhaps it should be no surprise that he is concerned that motions to dismiss will become similarly routine.
190. See Milton I. Shadur, An Old Judge's Thoughts, CBA RECORD (Chi. B. Ass'n, Chi., Ill.), Jan. 2004, at 27, 27.
191. See Clermont & Yeazell, supra note 16, at 839 n. 66 (detailing potential selection bias in the Hatamyar, Seiner, and Hannon studies).
192. See generally CHARLES H. HENNEKENS & JULIE E. BURING, EPIDEMIOLOGY IN MEDICINE 153-56 (Sherry L. Mayrent ed., 1987) (providing a general discussion of the use of cohort studies in epidemiology). In brief, a retrospective cohort study attempts to determine the relationship between an exposure and a disease by looking at exposed and unexposed individuals and calculating the prevalence of a particular health outcome in each group.
193. Id. at 154. In prospective studies, researchers follow exposed and unexposed individuals, sometimes tightly controlling the level of exposure, and determine health outcomes.
194. Id. at 154-55. In case-control studies, researchers first identify individuals with and without disease and then determine the level of exposure to a particular determinant within each group.
195. Id. at 156.
196. The difficulty of settling on a precise measure of success is discussed in more detail below, see infra text accompanying notes 93-102, 146-59, but compared to most empirical studies, I have defined success narrowly as either a judgment or a settlement.
197. See, e.g., Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 CORNELL L. REV. 719, 726-27 (1988) (including voluntary dismissals and dismissals for failure to prosecute, along with settlements and judgments, as successful outcomes).
198. I used Westlaw's KeyCite function to accomplish this. I included both published and unpublished appellate decisions in the sample.
199. See, e.g., Yamaguchi v. U. S. Dep't of the Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) (reversing dismissal in employment discrimination claim where plaintiff's complaint was "inartfully crafted, [but] in light of the liberal pleading standards,... presents an adequate claim of sex discrimination"). This approach to resolving pleading questions seems to be called into question by Iqbal.
200. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
201. See, e.g., Northington v. Jackson, 973 F.2d 1518, 1522 (10th Cir. 1992) ("In this case the district court did not consider any potential legal issues which arise from [plaintiff]'s allegations. Instead, it foreclosed legal analysis by concluding that the allegations were false, and it based this determination on [defendant]'s testimony at the telephonic evidentiary hearing."). These cases were included in the cohort because under Iqbal, district courts are encouraged to rely on their "judicial experience and common sense" to consider alternative explanations for the conduct alleged in a plaintiff's complaint, even if such explanations are found outside of the pleadings.
202. See Iqbal, 129 S. Ct. at 1950.
203. See, e.g., In re Johannessen, 76 F.3d 347, 350 (11th Cir. 1996);
204. Atchinson v. Dist. of Columbia, 73 F.3d 418, 423 (D. C. Cir. 1996) (finding allegation of municipal liability under § 1983 sufficient where plaintiff alleged a single instance of misconduct and a conclusory allegation of failure to train). These allegations were sufficient under Conley but are almost certainly now insufficient under Iqbal and Twombly.
205. See Iqbal, 129 S. Ct. at 1954 (rejecting the argument that state of mind allegations can be made generally);
206. Bell Atl. Corp. v. Twombly, 550 U. S. 544, 565 n. 10 (2007) (holding that bare allegation of conspiracy is insufficient without more to establish this element of an antitrust claim).
207. Twombly, 550 U. S. at 561-63.
208. For instance, if an appellate court referred to the "any set of facts" language but addressed the legal status of a particular cause of action rather than the sufficiency of the pleadings, the case was not considered part of the cohort.
209. *3 (4th Cir. Aug. 8, 1993) (holding that the district court erred in dismissing the action because the complaint cited only the Fourth Amendment and not the Fourteenth Amendment). In any event, anyone wishing to test the validity of the judgments made about each case can review the cases as they are clearly identified below.
210. See infra Appendix, Table 1.
211. 467 U. S. 69 (1984).
212. 405 U. S. 319 (1972) (per curiam).
213. This is reflected in citation counts for the three cases. According to Westlaw's KeyCite feature, over the specified time period, Cruz was cited in 108 appellate decisions, Hishon was cited in almost 250 appellate cases, and Conley was cited in 867 appellate cases. If one limits the citations to pleading-related headnotes (which is admittedly putting a high degree of faith in Westlaw's editors)
214. Cruz was cited in 38 cases, Hishon in 1197, and Conley in 845.
215. There might, of course, be a difference in the kind of case that elicits a Conley citation versus, say, a Cruz citation. Conley was a discrimination case, and Cruz was a prisoners' rights case. Therefore, one might expect that appellate courts considering prisoner appeals would be more likely to cite Cruz than Conley in support of reversal. This difference might affect the proportion of prison cases in the sample, but there is no reason to think that prisoner cases that elicit a Conley citation are more or less likely to be meritorious than prisoner cases that elicit a Cruz citation. Nonetheless, for future research it might be useful to include appellate decisions citing to Cruz and Hishon, if only to increase the sample size.
216. One should always attempt to minimize observation bias in empirical studies, and "blinding" researchers to outcomes is one approach to such minimization.
217. See HENNEKENS & BURING, supra note 75, at 192 (discussing blinding in the context of health intervention studies).
218. Such cases would be identified not by using appellate decisions as a filter, but by searching district court opinions directly.
219. See infra Part IV. C.
220. PACER Serv. Ctr., Admin. Office of the U. S. Courts, PACER: PUB. ACCESS TO COURT ELEC. RECORDS, http://www.pacer.gov/.
221. In addition to coding the cases for outcome, coding was made for the following categories: circuit, district, year of filing, year of resolution, pro se status on appeal, pro se status on remand, case type (by Administrative Office code), and case type (descriptive). The code for case type consisted of the following categories: antitrust, civil rights (nonprisoner), civil rights (prisoner), consumer, contract, employment discrimination, ERISA, RICO, securities fraud, and tort. Only nine cases could not be coded according to these categories and were lumped together as "other."
222. This presumption is subject to dispute, and some have certainly argued that juries are not reliable fact finders.
223. See, e.g., Elliott M. Abramson, The Medical Malpractice Imbroglio: A Non-Adversarial Suggestion, 78 KY. L. J. 293, 294 (1990) (criticizing malpractice juries for basing verdicts on sympathy for injured party);
224. David E. Bernstein, Learning the Wrong Lessons from "An American Tragedy": A Critique of the Berger-Twerski Informed Choice Proposal, 104 MICH. L. REV. 1961, 1975 (2006) (expressing concern regarding the role played by juror sympathies in cases involving birth defects);
225. Peter A. Drucker, Class Certification and Mass Torts: Are "Immature" Tort Claims Appropriate for Class Action Treatment?, 29 SETON HALL L. REV. 213, 222-23 (1998) (describing ways juries can be misled in toxic tort cases).
226. But see ROBERT P. BURNS, THE DEATH of THE AMERICAN TRIAL 31 (2009) ("The moral sources that are actualized at trial exist in the life world of the jurors. They are the negotiated truths that made a certain way of life possible. They are not arbitrary; neither is a decision derived from them, duly actualized and refined. Least of all is it 'purely emotional.'");
227. Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 78 (2003) (defending the need for a jury even in the face of criticisms that verdicts are the product of emotion and sympathy). For those who believe that jury verdicts are often the product of irrationality, it is doubtful that any indication of success would be a satisfactorily reliable correlate of merit. Indeed, it is unlikely that any aspect of the project undertaken in this Article would seem worthwhile to one who discounts all jury verdicts as the product of irrationality.
228. See, e.g., Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1592-93 (2003);
229. Schwab & Eisenberg, supra note 76, at 726-27.
230. There may be many reasons that a defendant enters into a settlement agreement, some of which reflect a judgment about merit and some of which reflect other concerns.
231. See infra notes 148-55 and accompanying text.
232. See, e.g., Patrick E. Longan, The Shot Clock Comes to Trial: Time Limits for Federal Civil Trials, 35 ARIZ. L. REV. 663, 684-85 (1993) (distinguishing between just and unjust settlements, with the latter the result of coercion such as unequal bargaining power). Much of the academic commentary has focused on class action litigation.
233. See, e.g., John C. Coffee, Jr., The Regulation of Entrepreneurial Litigation: Balancing Fairness and Efficiency in the Large Class Action, 54 U. CHI. L. REV. 877, 878 (1987);
234. Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 MICH. L. REV. 373, 387-88 (2005) (describing class action decertification decisions that are motivated in part by concern that certification will leave defendants with no choice but to settle). Some commentators have used strong language indeed, comparing settlements obtained after certification decisions to blackmail.
235. See Bruce Hay & David Rosenberg, "Sweetheart" and "Blackmail" Settlements in Class Actions: Reality and Remedy, 75 NOTRE DAME L. REV. 1377 (2000).
236. But see Melissa Hart, Will Employment Discrimination Class Actions Survive?, 37 AKRON L. REV. 813, 840 (2004) (suggesting that settlement of recent employment class action discrimination claims was driven by "strong evidence on the merits").
237. Compare Schwab & Eisenberg, supra note 76, at 727-28 (explaining, with caveats, reliance on voluntary dismissals)
238. with Gillian K. Hadfield, Exploring Economic and Democratic Theories of Civil Litigation: Differences Between Individual and Organizational Litigants in the Disposition of Federal Civil Cases, 57 STAN. L. REV. 1275, 1309-11 (2005) [hereinafter Hadfield, Civil Litigation] (auditing Administrative Office coding of voluntary and other dismissals and finding that they are not closely correlated with settlements) and
239. Gillian K. Hadfield, Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 J. EMPIRICAL LEGAL STUD. 705 (2004) [hereinafter Hadfield, Trials] (finding errors in general Administrative Office coding).
240. See generally Randy J. Kozel & David Rosenberg, Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment, 90 VA. L. REV. 1849, 1850 & n. 1 (2004) (summarizing literature and stating that "[t]o employ a nuisance-value strategy, a litigant asserts a plainly meritless claim or defense in order to extract a payoff based on the cost the other party would incur to have the claim or defense dismissed by the court under a standard dispositive motion, like summary judgment").
241. David M. Trubek, Austin Sarat, William L. F. Felstiner, Herbert M. Kritzer & Joel B. Grossman, The Costs of Ordinary Litigation, 31 UCLA L. REV. 72, 86-87 (1983) (relying on study of disputes in "eight selected general areas-tort, consumer, debt, discrimination, property, government, post-divorce and landlord-tenant").
242. See generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) (describing a system of informal dispute resolution in the cattle industry);
243. Robert J. Rhee, Tort Arbitrage, 60 FLA. L. REV. 125, 129 (2008) (remarking that most disputes are resolved without a lawsuit being filed).
244. See Kevin M. Clermont & Theodore Eisenberg, Litigation Realities, 88 CORNELL L. REV. 119, 138 (2002).
245. Most of the settlements or stipulated dismissals in the cohort of cases studied here took place after discovery was complete.
246. See infra notes 152-54 and accompanying text.
247. Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 STAN. L. REV. 809, 833 (2010).
248. See, e.g., Schwab & Eisenberg, supra note 76, at 727-28.
249. This principle only goes so far. It is hard to consider a case that is transferred to another district as successful or unsuccessful, at least in the sense that one means to study something about the merit of the claims being transferred.
250. See Federal Judicial Center, Federal Court Cases: Integrated Data Base, 1970-2000 (computer file, on file with the author), available at http://dx.doi.org/10.3886/ICPSR08429. The database (in its entirety or a selected portion) can be downloaded from the Inter-University Consortium for Political and Social Research. After downloading only the civil terminations files from 1990 to 2000 (datasets 73, 74, 86, 87, 88, 98, 103, 104, 115, 116, and 117), I converted the text files for use in Stata/SE 10.1 and generated the data that I will describe below. The Administrative Office data, being both expansive and publicly available, are not included in the Appendix, but the converted files I used for analysis are available on request. Eisenberg and Clermont also offer a useful online service that permits users to run certain queries of the database.
251. Theodore Eisenberg & Kevin M. Clermont, JUDICIAL STATISTICAL INQUIRY, http://legal1.cit.cornell.edu:8090/.
252. See Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U. S. Courts Database: An Initial Empirical Analysis, 78 NOTRE DAME L. REV. 1455, 1460 (2003);
253. Hadfield, Civil Litigation, supra note 96, at 1310-11;
254. Schlanger, supra note 93, at 1600 n. 129.
255. See infra notes 135-37 and accompanying text.
256. Federal Circuit cases were excluded from consideration because of the specialized nature of the court.
257. See 28 U. S. C. § 1295 (defining the jurisdiction of the Federal Circuit);
258. Court Jurisdiction, U. S. CT. of APPEALS FOR FED. CIRCUIT, http://www.cafc.uscourts.gov/index.php?option=com-content&view= article&id=144&Itemid=27 (reporting that more than half of Federal Circuit cases involve administrative law, 31% involve intellectual property, and 11% involve damages claims against the United States government). Between 1990 and 1999, only twenty-three appellate cases in which Conley was cited came from the Federal Circuit, and only nineteen of these involved appeals of disposition of motions to dismiss. of these nineteen, ten of the circuit decisions vacated or reversed a lower court decision dismissing a complaint.
259. Where feasible, Fisher exact testing is usually preferable to estimating variance by chi-square testing.
260. Robert Timothy Reagan, Federal Judicial Center Statistical Examples Software Prototype: Age Discrimination Example, 42 JURIMETRICS 281, 288 (2002).
261. Clermont and others have reported some variation in reversal rates by circuit in employment discrimination cases over a similar time frame.
262. Kevin M. Clermont, Theodore Eisenberg & Stewart J. Schwab, How Employment-Discrimination Plaintiffs Fare in the Federal Courts of Appeals, 7 EMP. RTS. & EMP. POL'Y J. 547, 561 Display 7 (2003).
263. See infra Table 2; infra Figure 2. There is no obvious explanation for these differences; there was no intervening legal change or Supreme Court decision between 1990 and 1992 that would explain a significantly higher reversal rate in the latter.
264. Excluded from consideration are cases in which dismissals were not considered on appeal. Thus, if Conley were cited in reviewing a jury verdict or summary judgment, it was not included in the analysis of this study. Overall, only ninety-seven cases fell into this category, or 11.5%. There was some variation by circuit: in the Supreme Court, three cases (50%) were not pleading cases, one in the First Circuit (3.03%), seven in the Second (7.37%), six in the Third (30%), seven in the Fourth (14%), eleven in the Fifth (14.86%), six in the Sixth (6.45%), ten in the Seventh (5.21%), two in the Eighth (4.88%), twenty in the Ninth (20.83%), nine in the Tenth (12.16%), ten in the 11th (27.03%), and five in the D. C. Circuit (16.13%).
265. See infra Table 3.
266. See, e.g., Comrie v. Bronx Lebanon Hosp., No. 97-7484, 1998 WL 29643 (2d Cir. Jan. 27, 1998);
267. B. F. Goodrich v. Betkoski, 99 F.3d 505 (2d Cir. 1996);
268. Finlator v. Powers, 902 F.2d 1158 (4th Cir. 1990).
269. *3 (7th Cir. Mar. 2, 1994).
270. See, e.g., IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049 (2d Cir. 1993).
271. For any case that could not be coded as successful or unsuccessful, I have made every attempt to reach out to the litigants or attorneys involved. Many of the cases were terminated over ten years ago, making follow-up difficult. of the cases that could not be coded as successful or unsuccessful, it is likely that at least fourteen of them involved settlements, but this has not yet been confirmed. Thus, if they were added to the cohort, and the additional cases lost to follow-up were all presumed to be unsuccessful, the success rate would change to 53.5%.
272. See infra Appendix Table 2 for the raw data upon which this table is based.
273. For each Conley-based reversal, I summarized the nature of the case according to the terms in Table 5.
274. The Civil Cover Sheet used by most districts can be found at http://www.uscourts.gov/forms/JS044.pdf.
275. The percentage of employment discrimination cases is consistent with national figures, as employment discrimination cases have grown to be the category comprising the largest single percentage of the federal civil docket, currently around 10%. Clermont & Schwab, supra note 29, at 429. This explosion began in the 1990s, thought to be due in part to the passage of the Civil Rights Act of 1991, along with the Americans with Disabilities Act of 1990 and the Family and Medical Leave Act of 1993.
276. Id. at 433 (noting that the 1991 Act added the right to a jury trial and compensatory and punitive damages, among other relief). Clermont and Schwab note that, notwithstanding the availability of the ADA and the FMLA, Title VII is the driving force behind employment discrimination claims because almost 70% of employment discrimination cases arise under Title VII.
277. Id.
278. Some litigants were pro se on appeal, but were granted motions for appointment of counsel after reversal. E.g., Zarnes v. Rhodes, 64 F.3d 285 (7th Cir. 1995).
279. See infra Table 8. The percentage of employment discrimination cases proceeding pro se is not all that different from what has been reported over the same time period for all employment cases. Clermont & Schwab, supra note 29, at 434 tbl.1 (showing that almost 17% of employment discrimination plaintiffs proceeded pro se in district court between 1998 and 2001);
280. id. app. at 457 (reporting that 19.8% of employment discrimination plaintiffs proceeded pro se between 1979-2000, with 25.95% of non-employment discrimination plaintiffs proceeding pro se, and 3.15% of contract and tort plaintiffs proceeding pro se).
281. See Theodore Eisenberg & Stewart J. Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 692 (1987);
282. Schwab & Eisenberg, supra note 76, at 770-71, 773-74. as with other studies, these data do not show that having an attorney causes an increase in success. It may just as well be the case that the merit of a litigant's case makes it more likely that an attorney will agree to represent her.
283. See infra Appendix Table 3.
284. The inaccuracies of the Administrative Office coding in the databases used here have been remarked on above.
285. See supra note 105 and accompanying text;
286. see also Hadfield, Trials, supra note 96 at 723-28 (reporting on an audit of Administrative Office coding errors).
287. The following dispositions were considered clear plaintiff successes: default judgment; consent judgment; jury, directed, or bench verdict for the plaintiff; judgment for plaintiff by pretrial motion; judgment for plaintiff on other grounds; and settlement. Defendant successes comprised the following: verdict for the defendant, both parties, or an unknown party; dismissal for failure to prosecute or for lack of jurisdiction; judgment for defendant or for both parties by pretrial motion; and judgment on other grounds for defendant or for both parties. Uncertain success was defined as voluntary dismissal or other dismissal. Excluded from consideration were the following dispositions: remand to state court; remand to an agency; transfer to a different court or to the Judicial Panel on Multidistrict Litigation
288. see 28 U. S. C. § 1407; judgments enforcing arbitration awards or on de novo trial post-arbitration; stays for bankruptcy proceedings; statistical closings; and dispositions related to magistrate judge appeals.
289. See infra Appendix Table 3.
290. It is important to caution against drawing too strong a conclusion from these data. Aside from the size of the sample, most of the cohort cases have already overcome a significant procedural hurdle-surviving a motion to dismiss. The same cannot be said of all of the cases in the Administrative Office dataset.
291. See supra Table 5.
292. See supra Table 6.
293. See infra Table 11b.
294. Eisenberg and Schlanger have reported that, with respect to prisoner cases, the Administrative Office coding of plaintiff judgments is generally accurate, with some marginal exceptions.
295. Eisenberg & Schlanger, supra note 105.
296. The Administrative Office data for code 550 cases is perhaps the best example of why one must be skeptical of the claim that all "other" dismissals should be considered successful dispositions for prisoner-plaintiffs. as Tables 11b and 11c demonstrate, in every case category other than prisoner cases, the settlement rate is always significantly higher than the "other" dismissal rate. In prisoner cases, however, the rate for "other" dismissals is more than five times the settlement rate. It is hard to imagine an explanation as to why successful prisoner cases, as opposed to all other cases, would be more likely to be resolved through "other" dismissals than through settlement. In addition, no other researcher has reported success rates approaching 50% in prisoner cases.
297. See, e.g., Schlanger, supra note 93, at 1557-58.
298. Compare supra Table 6 with infra Table 11b.
299. Schlanger, supra note 93, at 1558;
300. Schwab & Eisenberg, supra note 76, at 732-33 & tbl. IV;
301. see also Eisenberg & Schwab, supra note 123, at 682. Schlanger included judgment for the plaintiff, settlement, or voluntary dismissal as a metric for success.
302. Schlanger, supra note 93, at 1594-96. In prisoner cases, 6% to 7% were settled before trial, 1% received a judgment after trial, and 6% to 8% voluntarily dismissed their claims.
303. Id. at 1597. Schwab and Eisenberg gathered data from three separate judicial districts for cases filed from 1980 to 1981, and success included settlement, judgment, stipulated dismissal, or voluntary dismissal.
304. Schwab & Eisenberg, supra note 76, at 726-27.
305. See Theodore Eisenberg & Charlotte Lanvers, What Is the Settlement Rate and Why Should We Care?, 6 J. EMPIRICAL LEGAL STUD. 111, 122 (2009) (reviewing studies of tort litigation and antitrust claims reporting settlement rates of about 70% to 80% of filed cases); id. at 130 tbl.3 (providing data showing success rates ranging from 64% to 87% for tort claims and 65% to 73% for contract claims);
306. Schwab & Eisenberg, supra note 76, at 732-33 & tbl. IV (reporting success rate of 84% for nonprisoner civil cases, excluding constitutional tort cases);
307. see also Eisenberg & Schwab, supra note 123, at 682 (reporting that plaintiffs in contested non-civil rights cases succeeded in over 80% of all cases).
308. See Eisenberg & Lanvers, supra note 136, at 130 tbl.3 (providing data showing success rates ranging from 27% to 45% for constitutional tort claims and 55% to 82% for employment discrimination);
309. Laura Beth Nielsen, Robert L. Nelson & Ryon Lancaster, Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States, 7 J. EMPIRICAL LEGAL STUD. 175, 188 (2010) (based on review of randomly selected cases, reporting success by settlement or judgment of 60% for employment discrimination cases);
310. Schwab & Eisenberg, supra note 76, at 732-33 tbl. IV (reporting a success rate of 50% for nonprisoner constitutional tort cases, defined to include cases coded as 440, 441, 442, 443, and 444).
311. See infra Appendix Table 4 (showing the distribution within the Administrative Office dataset of certain case codes among cases terminated between 1990 and 2000). of principal interest is the following: 6.8% of the terminated cases were civil rights cases (code 440); 13% were prison cases (code 550); 5.2% were antitrust (code 410); 7.6% were employment discrimination cases (code 442); 7.6% were contract cases (code 190); 3.5% were tort cases (code 360); and 3.7% were RICO cases (code 470). When one compares these figures to the cohort, the cohort had fewer contract cases (5.1%), more prison cases (15.3%), civil rights cases (24.1%), employment discrimination cases (9.5%), and tort cases (5.8%), and about the same number of antitrust (5.1%) and RICO cases (3.6%).
312. See supra Table 6. The starkest difference is in the frequency of civil rights cases (24.1% in the cohort to 6.8% in the Administrative Office group), but even a marginal increase in prisoner cases will drive success numbers down.
313. In an analogous context, researchers have found that non-nuisance securities litigation claims in which hard evidence of fraud was lacking were less likely to be filed after passage of the PSLRA, suggesting that the heightened pleading standard created by that statute deterred filing of meritorious suits where evidence of wrongdoing was more difficult for plaintiffs to acquire.
314. See Stephen J. Choi, Karen K. Nelson & A. C. Pritchard, The Screening Effect of the Private Securities Litigation Reform Act, 6 J. EMPIRICAL LEGAL STUD. 35, 37 (2009).
315. See supra Tables 1, 2.
316. For instance, one would expect that, in a heightened pleading world, cases that survive motions to dismiss should be more likely to be successful than cases that survive motions to dismiss in a notice pleading world. Some of this data may be obtainable now that statutes like the PSLRA have been in effect for some time, but the initial empirical word on the PSLRA suggests quite the opposite.
317. See Choi, supra note 22, at 623 (suggesting that rather than selectively deterring frivolous lawsuits, the PSLRA disproportionately discouraged meritorious ones).
318. See Choi et al., supra note 139, at 64-65.
319. See supra note 76 and accompanying text (indicating that studies have included judgments, settlements, voluntary dismissals, and dismissals for failure to prosecute as indicative of success). In this study, voluntary dismissals have been omitted from consideration unless success or failure could be independently confirmed, and dismissals for failure to prosecute have been coded as unsuccessful.
320. Needless to say, there is no empirical evidence demonstrating that high discovery costs in complex litigation operate as a greater inducement to settle than perception of the merits of the case. Indeed, a recent survey of the plaintiff and defense bars indicates that attorneys consider discovery costs to almost routinely fall below 3.5% of their client's stake in the litigation, and the attorneys generally agree that discovery costs are lower than expected.
321. See Emery G. Lee III & Thomas E. Willging, FED. JUDICIAL CTR., NATIONAL, CASE-BASED CIVIL RULES SURVEY 43 (Oct. 2009), available at http://www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1. pdf.
322. See, e.g., Peter H. Huang, Lawsuit Abandonment Options in Possibly Frivolous Litigation Games, 23 REV. LITIG. 47 (2004).
323. But see Patrick J. Borchers, Jurisdictional Pragmatism: International Shoe's Half-Buried Legacy, 28 U. C. DAVIS L. REV. 561, 585 n. 154 (1995) (noting that repeat players will hesitate to settle even when it is economically rational to do so because of fear that settlement will induce frivolous litigation by others);
324. John C. Coffee, Jr., Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 COLUM. L. REV. 669 (1986) (criticizing economic theory
325. Repeat players may settle cases that appear particularly meritorious so as to avoid the development of unfavorable law, and plaintiffs' counsel may have the opposite motivation. Moreover, plaintiffs' counsel may bring cases they know will lose so as to develop the law or to develop discovery for the next set of cases. All of these factors may influence settlement rates so as to create risks in interpreting the rates as indicators of success.
326. By "nuisance value", I mean a settlement that reflects economic considerations about the cost of litigation rather than any judgment about likely merit. as explained below, a significant portion of the settlements recorded here were in cases in which government entities were defendants. For a variety of reasons, government entities may be less likely to agree to a settlement as an economically motivated alternative to litigation.
327. See Dawson v. United States, 68 F.3d 886, 897-98 (5th Cir. 1995) (reversing district court's sanction of a government attorney who refused to make a settlement offer to a pro se prisoner because of the government's fear that settling prisoner claims will encourage other suits);
328. Borchers, supra note 148, at 585 n. 154;
329. Daniel Marcus & Jeffrey M. Senger, ADR and the Federal Government: Not Such Strange Bedfellows After All, 66 MO. L. REV. 709, 712 (2001) (explaining that some cases are harder for the government to settle if a lawsuit challenges "the lawfulness of government action" or if there is a risk of "copycat litigation").
330. But see Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U. S. 598, 618 (2001) (Scalia, J., concurring) (referring to plaintiffs seeking attorneys' fees from government entities as "extortionist");
331. David S. Mendel, Note, Determining Ripeness of Substantive Due Process Claims Brought by Landowners Against Local Governments, 95 MICH. L. REV. 492, 494-95 & n. 9 (1996) (discussing claim that municipalities sometimes are pressured to settle landowners' suits because of potential costs of litigation).
332. Presumably, the incentive to offer a nuisance settlement changes as a case proceeds from one procedural stage to the next. With each progression, the defendant's expectation of success and future litigation costs changes, but not always in predictable ways. Prior to moving to dismiss, however, the defendant may predict that future litigation costs could be high, and therefore may consider it an opportune time to negotiate a quick and inexpensive settlement.
333. See John Bronsteen, Christopher Buccafusco & Jonathan S. Masur, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516, 1536-40 (2008) (arguing that a plaintiff "adapt[s] hedonically to her injury" over time and will adjust her settlement demands accordingly).
334. See infra Appendix Table 5.
335. of the eighty-seven cases in which there was some discovery after the case was remanded to district court from the appellate court, thirty-six were successful via settlement or stipulated dismissal, and five were successful in other ways. of the thirty-one cases in which it could be determined that there was no discovery, twenty-one were resolved via settlement. Thus, most settlements occurred after discovery.
336. Another way to test nuisance settlements is by looking at the value of the settlement. Because the settlement amount was not reported in the overwhelming majority of these cases, and because counsel have indicated in follow-up correspondence that the settlement amount of some cases is confidential, it is near to impossible to use this rubric for estimating success. There is evidence, however, that in the area of securities litigation, the advent of the PSLRA decreased the likelihood that a subset of meritorious non-nuisance cases would be filed.
337. See Choi et al., supra note 139, at 64-65.
338. The distinction between private settlements and court-enforced consent decrees was recognized by the Supreme Court itself in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U. S. 598, 605 (2001)
339. which considered the latter, but not the former, to justify the award of attorneys' fees to a plaintiff as a "prevailing party" under 42 U. S. C. § 1988.
340. See, e.g., Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023, 1032-33 & nn. 43-44 (2010) (summarizing literature regarding indemnification of law enforcement defendants).
341. See, e.g., Schlanger, supra note 93, at 1619 (describing "no settlement" policies in some prison systems).
342. See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 370-71 (2000).
343. Clermont & Schwab, supra note 29, at 441 fig.7.
344. Clermont & Eisenberg, supra note 99, at 138.
345. Id. at 138-40.
346. Id. at 128.
347. See id. (observing that despite the limitations of relying on formal outcomes, when averaged and observed over several years, such measures can "tell the researcher quite a bit").
348. Hadfield, Civil Litigation, supra note 96, at 1309-11 & tbls. 9 & 11 (showing that 25% of "other" dismissals were settlements and 53% of voluntary dismissals were settlements).
349. Out of twenty-one cases that I recorded as a stipulated dismissal, I could determine the way that the Administrative Office coded them in sixteen cases. of those sixteen, three were coded as voluntary dismissals, five were coded as "other" dismissals, six were coded as settlements, and one was coded as a judgment (for the defendant!).
350. See, e.g., David Rosenberg & Steven Shavell, A Simple Proposal to Halve Litigation Costs, 91 VA. L. REV. 1721, 1721 (2005).
351. See, e.g., Fairman, supra note 21, at 998-1011.
352. That is, one can feel fairly confident that the cases contained in the cohort were not subjected to a heightened pleading standard because in every case dismissal was reversed based upon reliance on Conley's liberal standard.
353. In part, this is because the Administrative Office does not distinguish between pleading dismissals and summary judgment dismissals. One would imagine that in a heightened pleading world, pleading dismissals would be relatively higher than in a notice pleading world, but the Administrative Office data do not admit that kind of analysis.
354. Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 412 (codified as amended in scattered sections of 42 U. S. C.).
355. Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 U. S. C.).
356. Prison Litigation Reform Act of 1995, Title VIII of Pub. L. 104-134, 110 Stat. 1321-66 (codified as amended in scattered sections of 18 U. S. C.).
357. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U. S. 163 (1993).
358. Year of termination would appear to be a better indicator of time than year of filing. After all, when parties or courts resolve cases, they are usually doing so with respect to the current legal regime, or else because they are making a prediction about future legal changes. Pauline T. Kim, Lower Court Discretion, 82 N. Y. U. L. REV. 383, 411 (2007) (describing the effect of shifting Supreme Court policy on decisions to settle or litigate cases).
359. Because of the small sample size when one divides the cases according to year of termination, the study did not have tremendous power to detect statistically significant differences. Nonetheless, I used the "logit" command in Stata to run multiple regressions using the following independent variables: pro se status in the district court, case type (descriptive), and time (using two different ways of measuring the time at which the case was terminated). Success was the dependent variable. Regression analyses are on file with the author, and all significance testing was conducted at the 0.10 level. Pro se status was significantly negatively correlated with success for all case types, without regard to time of termination. Only four time variables were significantly correlated with success: termination
360. See supra notes 157-59 and accompanying text.
361. Clermont, supra note 16, at 1971-72.
362. Trubek et al., supra note 98, at 86-87.
363. See infra Appendix Table 2.
364. But see Rosenberg & Shavell, supra note 167, at 1721 (proposing that, to address discovery costs and docket overload, courts randomly dismiss half of filed complaints seeking damages, but award double damages in cases that proceed).