Foundational facts and doctrinal change

University of Illinois Law Review

Volumn 2011, Issue 1, 2011, Pages 145-185

  Sherry, Suzanna ^a  

^a VANDERBILT UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79952206530     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (402)

1. The current focus seems to be on one aspect of judicial philosophy. Legal scholars have recently jumped on the attitudinalist bandwagon, suggesting that judges' votes are dependent primarily on their ideology. See, e.g., Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. CIN. L. REV. 1257 (2004).
2. In particular, there has been a plethora of recent scholarly charges that the Supreme Court is driven by a particular policy agenda. See, e.g., Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Courts Federalism Decisions, 69 U. CHI. L. REV. 429 (2002) (describing the Court as driven by "conservative judicial philosophies");
3. Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 YALE L.J. 1141 (2002) (attributing to the Court a hostility to antidiscrimination law);
4. Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Courts Jurisprudence, 84 TEX. L. REV. 1097 (2006) (attributing to the Court a hostility to litigation).
5. For the classic attitudinalist approach, see JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993);
6. Jeffrey A. Segal et al., Ideological Values and the Votes of U.S. Supreme Court Justices Revisited, 57 J. POL. 812 (1995).
7. For critiques of, and alternatives to, attitudinalism in the political science literature, see, for example, RONALD KAHN, THE SUPREME COURT AND CONSTITUTIONAL THEORY 1953-1993 (1994);
8. THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS (Howard Gillman & Cornell Clayton eds., 1999);
9. SUPREME COURT DECISION-MAKiNG: NEW INSTITUTIONALIST APPROACHES (Cornell W. Clayton & Howard Gillman eds., 1999);
10. Anna Harvey & Michael J. Woodruff, Confirmation Bias in the United States Supreme Court Judicial Database (Dec. 16,2009) (unpublished manuscript), available at http://ssrn.com/abstract-1393613.
11. In some-perhaps many-cases, legal sources, including precedent, do not unambiguously dictate a result, and judges must go outside the law. As Judge Richard Posner has explained, when the law runs out, judges must turn elsewhere. RICHARD A. POSNER, HOW JUDGES THINK 202 (2008). But in many cases of sudden unacknowledged doctrinal shifts, the law has not run out; instead, the judges seem to be ignoring precedent. It is no wonder that some scholars attribute these cases to politically motivated judges.
12. 539 U.S. 306 (2003).
13. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) (disparate treatment);
14. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (disparate impact).
15. 550 U.S. 544 (2007).
16. 129 S. Ct. 1937 (2009).
17. See id. at 1954;
18. Twombly, 550 U.S. at 570.
19. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
20. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
21. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
22. See, e.g., Neal Devins, Explaining Grutter v. Bollinger, 152 U. PA. L. REV. 347 (2003) (arguing that in Grutter the Court followed elite opinion);
23. Gail Heriot, Thoughts on Grutter v. Bollinger and Gratz v. Bollinger as Law and as Practical Politics, 36 LOY. U. CHI. L.J. 137 (2004) (arguing that in Grutter the Court followed politics rather than law);
24. see also sources cited infra note 193 (criticizing Twombly and Iqbal).
25. My theory of foundational facts thus shares with Fred Schauer's critique of the common-law method a focus on the meta-structure of doctrine. Schauer distinguishes between what he calls "the this-ness" of particular cases and the "full array of events" that the doctrine encompasses and argues that the common-law method of case-by-case decision making results in bad law because judges inevitably view the particular case as "representative of the larger array" when it may not be.
26. Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 884, 894 (2006).
27. What I am suggesting is a different view of doctrinal development: whenever judges consider either the cases before them or the larger array, they depend on their assumptions about facts in the world independent of possible legal disputes.
28. The Court in Miranda mandated warnings to "dispel the compulsion inherent in custodial surroundings." Miranda v. Arizona, 384 U.S. 436, 458 (1966).
29. Of course, background facts ultimately give rise to policy questions that also shape doctrine (but which I do not consider in this Article): given what we know, or assume, about how coercion operates and what other consequences might follow from requiring Miranda readings in various circumstances, how should we trade off the various costs and benefits to set the legal requirements that police must follow?
30. See, e.g., David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991) (discussing the Court's use and misuse of empirical evidence);
31. Wendy M. Rogovin, The Politics of Facts: "The Illusion of Certainty," 46 HASTINGS L.J. 1723 (1995) (arguing that the Court had recently begun asking for empirical factual support for legislation enacted under the Commerce Clause).
32. See, e.g., Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 638-39 (1999);
33. City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997).
34. For discussions of factual assertions, see Todd S. Aagaard, Factual Premises of Statutory Interpretation in Agency Review Cases, 77 GEO. WASH. L. REV. 366 (2009) (discussing judicial use of contestable factual assertions);
35. Stuart Minor Benjamin, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 TEX. L. REV. 269, 273 (1999) ("Judicial opinions are filled with assertions about the state of the world....");
36. Faigman, supra note 12 (discussing judicial use of contestable factual assertions);
37. Timothy Zick, Constitutional Empiricism: Quasi-Neutral Principles and Constitutional Truths, 82 N.C. L. REV. 115 (2003) (discussing judicial use of scientific fact).
38. Larry Lessig, for example, focuses on these sorts of uncontested and widely-shared beliefs about the world, explaining the role of context in constitutional interpretation. Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1393-1400 (1997);
39. Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 400-02 (1995);
40. see also BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998) (making a similar argument about how changed contexts produced the shift that culminated in the 1937 doctrinal changes).
41. I leave to one side the interplay between foundational facts and Court dynamics. I therefore do not address the question of how many Justices must change their assumptions in order to work a doctrinal change. Justices might influence each other, especially with regard to unexamined factual assumptions, so what seems to be a change in the whole Court's views might actually be triggered by only one or two Justices.
42. It is certainly possible for a court to apply a doctrine on the basis of contested factual assumptions. See, e.g., Chris Guthrie, Carhart, Constitutional Rights, and the Psychology of Regret, 81 S. CAL. L. REV. 877 (2008);
43. Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837 (2009). Some critics might find the application so controversial as to amount to a change in doctrine. But my focus is on cases that cannot possibly be characterized as applications of existing doctrine, however much the Court insists that that is all it is doing.
44. I also find these cases relatively unproblematic, because I am generally skeptical of the enterprise of assessing the legitimacy of judicial decision making by looking at the legitimacy (or even correctness) of particular outcomes rather than at the legitimacy of the judicial process. As I have written extensively on this skepticism elsewhere, I will not repeat it here.
45. See DANIEL A. FARBER & SUZANNA SHERRY, JUDGMENT CALLS: PRINCIPLE AND POLITICS IN CONSTITUTIONAL LAW 43-52 (2009). The continuum from legislation to adjudication is simply not susceptible to fine enough parsing to allow wholesale condemnation of cases in boxes 2 and 3.
46. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003)
47. (reversing Bowers v. Hardwick, 478 U.S. 186 (1986));
48. Brown v. Bd. of Educ., 347 U.S. 483 (1954)
49. (implicitly reversing Plessy v. Ferguson, 163 U.S. 537 (1896)). Most of Lessig's examples are of this type.
50. Perhaps the best example is the overruling of Swift v. Tyson, 41 U.S. 1 (1842),
51. by Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
52. The Court acknowledged the change in doctrine by explicitly overruling precedent, but rested the decision on two questionable bases; the unsatisfactory nature of the Court's own explanation is what keeps the case out of box 6. The Court relied, first, on Charles Warren's then-recent article about the original meaning of the Rules of Decision Act.
53. See Erie, 304 U.S. at 72-73 & n.5.
54. Warren's work, however, showed only that an earlier draft of the statute directed federal courts to follow both state "statute law" and state "unwritten or common law." Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 51-52, 83-88 (1923).
55. The ultimate adoption of language that simply instructed federal courts to follow state "laws" can be interpreted either to include both statute law and common law, or as a decision to limit the Act to the common meaning of the plural form of "laws" as a synonym for "statutes" (as the Swift Court held).
56. See Swift, 41 U.S. at 18.
57. Moreover, Congress's acquiescence in Swift for almost a century suggests that Congress did not consider Swift's interpretation incorrect. Secondly, Justice Brandeis's majority opinion also famously held that Swift's interpretation was unconstitutional, because Congress had "no power to declare substantive rules of common law."
58. Erie, 304 U.S. at 78.
59. That declaration has been controversial since its utterance-Justice Reed's concurrence specifically denied its validity-and is almost certainly untrue today.
60. See id. at 91-92 (Reed, J., concurring).
61. Both bases form a slender reed on which to rest the overturning of a hundred-year-old precedent.
62. Nevertheless, Erie fits into box 5 because it could easily be justified on the widespread change in perceptions of what it was that judges did when they decided cases: rather than finding the law, as Swift would have it, they declared it.
63. A possible example is Romer v. Evans, 517 U.S. 620 (1996).
64. Although it is difficult to square with existing Equal Protection precedent, it may instead rest on the widely accepted notion that the government cannot treat some people as outcasts or pariahs. See Daniel Färber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENT. 257 (1996).
65. See FARBER & SHERRY, supra note 18, at 97-104.
66. It should not take much imagination, just a sense of American history.
67. See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005).
68. See Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989);
69. see also Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
70. Gerald Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).
71. I, like Gunther, limit this conclusion to Equal Protection challenges to discriminatory laws. A recent empirical study examined all federal court applications of strict scrutiny (in Equal Protection as well as other areas and in both the Supreme Court and lower courts) and found that the challenged governmental action survived about thirty percent of the time, including in about twenty-seven percent of the Equal Protection discrimination cases.
72. Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 815 (2006). But ninety-seven percent of the Equal Protection cases in Winkler's study involved classifications benefitting minorities.
73. Id. at 834
74. (eighty-five percent affirmative action, twelve percent racial redistricting). Since my argument is that the doctrinal inconsistencies arose specifically when the Court applied strict scrutiny to an affirmative action program, the study supports, rather than refutes, my conclusion.
75. Between Korematsu v. United States, 323 U.S. 214 (1944),
76. and Grutter, 539 U.S. 306, the only facially discriminatory racial classifications upheld by the Supreme Court involved remedies for prior discrimination.
77. See United States v. Paradise, 480 U.S. 149 (1987);
78. Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 480 (1986). Lower courts similarly upheld primarily remedial classifications.
79. See Winkler, supra note 26, at 836-37.
80. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224 (1995) ("[A]ll racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.").
81. See Grutter, 539 U.S. 306.
82. Id. at 316-17.
83. Id. at 318.
84. Id. at 320;
85. see also Ian Ayres & Sydney Foster, Don t Tell, Don t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517, 549 (2007)
86. (arguing that subsequent statistical analysis shows that the law school's use of race "may have been more formulaic" than that of the undergraduate affirmative action plan, which was invalidated in the companion case, Gratz v. Bollinger, 539 U.S. 244 (2003)).
87. Grutter, 539 U.S. at 322.
88. Other commentators have made the same observation. See Michelle Adams, Searching for Strict Scrutiny in Grutter v. Bollinger, 78 TUL. L. REV. 1941, 1943 (2004)
89. (describing Grutter as using "relaxed" strict scrutiny);
90. Ayres & Foster, supra note 32, at 549 (arguing that the inquiry in Grutter was not very probing);
91. Annalisa Jabaily, Color Me Colorblind: Deference, Discretion, and Voice in Higher Education After Grutter, 17 CORNELL J.L. & PUB. POL'Y 515, 525 (2008) (calling the Grutter standard "strict scrutiny with deference");
92. Calvin Massey, The New Formalism: Requiem for Tiered Scrutiny?, 6 U. PA. J. CONST. LAW 945, 974 (2004) (describing Grutter as reviving the deferential "Korematsu brand of strict scrutiny" and referring to its application of strict scrutiny as a "pretense").
93. Affirmative action may not be the only context in which the Court applies purportedly strict scrutiny in a deferential manner. See Andrew R. Gould, Comment, The Hidden Second Amendment Framework Within District of Columbia v. Heller, 62 VAND. L. REV. 1535, 1570 (2009) (suggesting that the Court will apply "deferential strict scrutiny" in Second Amendment cases).
94. Grutter, 539 U.S. at 328;
95. see also id. at 377 (Thomas, J., concurring in part and dissenting in part).
96. See id. at 340 (majority opinion).
97. Id. at 343.
98. Id. at 336.
99. Id. at 318.
100. See id. at 381 (Rehnquist, C.J., dissenting).
101. See id. at 383-86.
102. See supra notes 40-41;
103. see also Ayres & Foster, supra note 32, at 519-20, 541-44.
104. 539 U.S. 244 (2003).
105. See id. at 298-302 (Ginsburg, J., joined by Souter and Breyer, JJ., dissenting);
106. see also Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 245-47 (1995) (Stevens, J., dissenting) (urging the adoption of intermediate scrutiny).
107. More recently, the Court struck down race-based assignment plans for elementary and high schools. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007). The plans differed in several ways from the law school's affirmative action plan, however, making it difficult to determine whether the Court is moving back toward truly strict scrutiny.
108. See infra note 47.
109. Compare, e.g., Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 133032 (2007) (strict scrutiny as a proportionality test),
110. and Caleb Nelson, Judicial Review of Legislative Purpose, 83 N.Y.U. L. REV. 1784, 1843-48 (2008) (same),
111. and Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 AM. J. LEGAL HIST. 355 (2006)
112. (strict scrutiny as heightened protection for favored constitutional interests through cost-benefit analysis), with JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980)
113. (strict scrutiny as test of illicit motives), and Charles Fried, Types, 14 CONST. COMMENT. 55 (1997)
114. (same), and Kermit Roosevelt III, Constitutional Calcification: How the Law Becomes What the Court Does, 91 VA. L. REV. 1649, 1702-03 (2005) (same),
115. and Suzanna Sherry, Selective Judicial Activism in the Equal Protection Context: Democracy, Distrust, and Deconstruction, 73 GEO. L.J. 89 (1984) (same).
116. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (illicit motives);
117. Adarand, 515 U.S. at 230 (proportionality);
118. Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (illicit motives).
119. If the Court values a particular constitutional right more or less than other (perhaps related) rights, or more or less than its predecessors did, it can explicitly apply a different test. One possibility is to carve out an exception to strict scrutiny. This is what has happened in the context of speech that is considered obscene
120. . See Miller v. California, 413 U.S. 15, 24-25 (1973).
121. Strict scrutiny applies to most government restrictions on speech that are based on content, but not to limitations on obscene speech. If, on the other hand, the Court believes that strict scrutiny as proportionality review overstates the importance of the right, it can apply a less strict test. This is what happened in the context of abortion rights, in which the Court changed from strict scrutiny to an undue burden test.
122. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 873-74 (1992).
123. It is also what prompts intermediate scrutiny for commercial speech cases. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996).
124. In these cases, the Court openly acknowledges that it is applying a different doctrine, often justifying the doctrinal difference by evaluating the individual right or the governmental response.
125. See ELY, supra note 47, at 170-72.
126. See Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 718-24 (1985).
127. At least one current Supreme Court Justice has operationalized this insight for one minority group. See Romer v. Evans, 517 U.S. 620, 645-46 (1996)
128. (Scalia, J., dissenting) ("[Because) those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and, of course, care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide." (citations omitted)).
129. In some statutory schemes, Congress may be more specific about its factual assumptions. Those might present more complicated cases than the ones I describe here and in Part III.
130. 42 U.S.C. § 2000e-2(a)(1) & (2) (2006).
131. 401 U.S. 424, 431 (1971).
132. 42 U.S.C. § 2000e-2(a)(1) & (2).
133. See Washington v. Davis, 426 U.S. 229 (1976).
134. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979);
135. see also Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009) (using dictionary definition of "because of: "by reason of: on account of).
136. See, e.g., Griggs, 401 U.S. at 427.
137. See, e.g., id. at 427-29.
138. See id.
139. Griggs v. Duke Power Co., 292 F. Supp. 243, 248 (M.D.N.C. 1968),
140. aff'd in relevant part 420 F.2d 1225 (4th Cir. 1970), rev'd, 401 U.S. 424 (1971).
141. The district court judge had been nominated by President Johnson in April 1964, less than three months before Title VII was enacted. Biographical Directory of Federal Judges, FED. JUDICIAL CTR., http://www.fjc.gov/servlet/ nGetInfo?jid=887&cid= 999&ctype=na&instate=na (last visited Oct. 1, 2010). His finding that Duke Power lacked discriminatory intent might further our intuition that such intent is especially difficult to prove in the context of neutral employment practices.
142. Griggs, 401 U.S. at 432.
143. Id.
144. See Connecticut v. Teal, 457 U.S. 440, 446-47 (1982)
145. ("Griggs and its progeny have established a three-part analysis of disparate-impact claims. To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that 'any given requirement [has] a manifest relationship to the employment in question,' in order to avoid a finding of discrimination. " (alteration in original) (quoting Griggs, 401 U.S. at 432));
146. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)
147. ("[Court's] cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet 'the burden of showing that any given requirement [has]... a manifest relationship to the employment in question." (alteration in original)
148. (quoting Griggs, 401 U.S. at 432));
149. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975) (explaining what happens after "the employer does then meet the burden of proving that its tests are 'job related"
150. (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973))).
151. Attributing to the Court a tacit assumption that practices with a disparate impact were adopted in order to discriminate goes further than suggesting that the purpose of disparate impact is to make it easier to ferret out deliberate discrimination.
152. Attributing to the Court a tacit assumption that practices with a disparate impact were adopted in order to discriminate goes further than suggesting that the purpose of disparate impact is to make it easier to ferret out deliberate discrimination.
153. On the latter, see, for example, Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 494, 520-23 (2003) and sources cited therein.
154. For an analogous argument-in the First Amendment context-suggesting a link between burdens of proof, substantive doctrines, and the difficulty of ferreting out impermissible motives, see Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 442 (1996).
155. 411 U.S. 792 (1973).
156. Id. at 802.
157. In McDonnell Douglas, the allegedly discriminatory action was a failure to hire. Id. at 801.
158. In later cases, the Court adapted this test, with the same basic elements, to other adverse employment actions.
159. See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003) (applying the McDonnell Douglas test to an employer's alleged failure to re-hire an employee due to a disability);
160. Johnson v. Transp. Agency, 480 U.S. 616, 626 (1987) (applying the McDonnell Douglas framework to an employer's denial of promotion on the basis of race).
161. McDonnell Douglas, 411 U.S. at 802.
162. Id. at 804.
163. The Court acknowledged this inference in Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).
164. McDonnell Douglas, 411 U.S. at 807 (emphasis added).
165. 450 U.S. 248, 256 (1981).
166. Id. (citing McDonnell Douglas, 411 U.S. at 804-05).
167. 490 U.S. 642 (1989).
168. See id. at 650.
169. Id. at 650-51.
170. Id. at 655.
171. Id. at 659 (emphasis added).
172. This part of Wards Cove was overruled by the Civil Rights Restoration Act of 1991, codified at 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2006) (stating that a disparate impact case is established if the plaintiff demonstrates a disparate impact "and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity"). Congress's action shows that where it disagrees with the Court's foundational facts, it can interpose its own.
173. Wards Cove, 490 U.S. at 660 (citation omitted).
174. Twenty years later, Justice Ginsburg noted that Wards Cove "significantly modified" Griggs. Ricci v. DeStefano, 129 S. Ct. 2658, 2698 (2009) (Ginsburg, J., dissenting).
175. 509 U.S. 502, 519 (1993).
176. See id. at 512 ("Only one unfamiliar with our case law will be upset by the dissent's alarum that we are today setting aside 'settled precedent'....").
177. For a critique of the Court's change of perception, see Deborah A. Calloway, St. Mary's Honor Center v. Hicks; Questioning the Basic Assumption, 26 CONN. L. REV. 997 (1994).
178. For an argument that the Court did not change the law in St. Mary's, see Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV. 2229 (1995).
179. SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY 4 (1994).
180. Of course, it is possible that the minimal nature of the pleading and summary judgment standards under the 1938 Rules might have contributed to an increase in the filing of meritless suits, eventually leading to changes in judicial perception that lead to changes in doctrine. The stricter pleading and summary judgment standards might in turn decrease the number of meritless suits, leading to yet another change in perception and, eventually, doctrine. The pendulum thus might continue to swing. For a different take on such a pendulum,
181. see Richard A. Nagareda, 1938 All Over Again? Pre-Trial on Trial in Complex Litigation, 60 DEPAUL L. REV. (forthcoming 2011).
182. One could alternatively define meritless suits as those in which the plaintiff has a zero probability of winning. See, e.g., Randy J. Kozel & David Rosenberg, Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment, 90 VA. L. REV. 1849, 1855 n.9 (2004).
183. But that definition will likely include very few suits; in particular, it will not include suits in which the expected value of the suit is negative because the plaintiff has a very low probability of prevailing (compared to the cost of litigating).
184. Id.
185. If we believe-and in the world I am imagining we do believe-that the reason the probability is low rather than zero is because of differences in juries that are extrinsic to the merits of the claim, then those suits should not be brought. For an elaboration of different meanings of probability in this context, see Paul H. Edelman, On Legal Interpretations of the Condorcet Jury Theorem, 31 J. LEGAL STUD. 327 (2002).
186. For purposes of this Article, exactly how we define "meritless" is not significant. I assume only that however we define it, the perception of how many cases fit the definition has changed.
187. See, e.g., Lucian Arye Bebchuk, Litigation and Settlement Under Imperfect Information, 15 RAND J. ECON. 404 (1984);
188. Robert G. Bone, Modeling Frivolous Suits, 145 U. PA. L. REV. 519 (1997).
189. See, e.g., Chris Guthrie, Framing Frivolous Litigation: A Psychological Theory, 67 U. CHI. L. REV. 163 (2000).
190. See, e.g., Joseph A. Grundfest & Peter H. Huang, The Unexpected Value of Litigation: A Real Options Perspective, 58 STAN. L. REV. 1267 (2006).
191. FED. R. CIV. P. 56(a).
192. See, e.g., Charles E. Clark, The Handmaid of Justice, 23 WASH. U. L.Q. 297, 318-19 (1938);
193. Edson R. Sunderland, Scope and Method of Discovery Before Trial, 42 YALE L.J. 863, 864-65 (1933);
194. see also Stephen B. Bur bank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 602 & n.48 (2004) (characterizing both Clark and the Rules Advisory Committee as viewing summary procedure as being useful primarily in "routine" cases);
195. E. Donald Elliott, Managerial Judging and the Evolution of Procedure, 53 U. CHI. L. REV. 306, 319 (1986) (stating that the drafters envisioned summary judgment as a response to the "occasional recalcitrant litigant [who] refused to accept the results of discovery voluntarily");
196. Jay Tidmarsh, Pound's Century, and Ours, 81 NOTRE DAME L. REV. 513, 529 (2006) ("[Roscoe Pound believed] in his characteristically optimistic way, that a procedural orientation toward merits-based decisions, together with judicial discretion that policed sharp procedural practices, would be sufficient to let lawyers' better natures emerge.").
197. See generally Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 440-44 (1986) (describing history of expensive litigation brought on after the adoption of the Federal Rules);
198. Arthur R. Miller, The Adversary System: Dinosaur or Phoenix, 69 MINN. L. REV. 1, 33-35 (1984)
199. (describing problems associated with the adversarial system). Some disputed the claim that a "litigation explosion" existed at all. See Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4,9-10,61-65 (1983).
200. See, e.g., Wayne D. Brazil, Civil Discovery: Lawyers ' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 AM. B. FOUND. RES. J. 789, 809 (1980) (stating that lawyers whose cases involve the most discovery are the "most likely to complain that the discovery process... is seriously infected by tactical machinations");
201. Francis R. Kirkham, Complex Civil Litigation-Have Good Intentions Gone Awry?, 70 F.R.D. 199, 203-04 (1976);
202. Simon H. Rifkind, Are We Asking Too Much of Our Courts?, 70 F.R.D. 96, 106-08 (1976).
203. See, e.g., Brazil, supra note 93, at 802 (showing that plaintiffs' attorneys are only "slightly more positive" about discovery than defendants' attorneys);
204. Shalom L. Kohn, Discovery Made Simpler (and Cheaper), 6 LITIG., Winter 1980, at 3, 3 ("[T]he effect [of discovery] in smaller cases may render the litigation so prohibitive as to preclude it completely.");
205. Martin B. Louis, Intercepting and Discouraging Doubtful Litigation: A Golden Anniversary View of Pleading, Summary Judgment, and Rule 11 Sanctions Under the Federal Rules of Civil Procedure, 67 N.C. L. REV. 1023, 1031 (1989) (describing complaints that defendants use discovery and other motions to "wear down the opposition");
206. Maurice Rosenberg et al., Expenses: The Roadblock to Justice, 20 JUDGES J., no. 4, 1981, at 16, 17 ("There is sound evidence that the expense of litigating... in some cases, essentially bars the courthouse door.").
207. See Brazil, supra note 93, at 825, 830-32.
208. Louis, supra note 94, at 1028-29;
209. see also Tidmarsh, supra note 91, at 560-61 & n.203 (describing the "drumbeat" of calls for change from the mid-1970s).
210. See generally Tidmarsh, supra note 91, at 585-86 (describing amendments).
211. See, e.g., Elliott, supra note 91, at 320-21.
212. 355 U.S. 41
213. Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962).
214. See Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979);
215. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-60 (1970);
216. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962);
217. Poller, 368 U.S. at 473;
218. see also Jack H. Friedenthal, Cases on Summary Judgment: Has There Been a Material Change in Standards?, 63 NOTRE DAME L. REV. 770, 770, 772-73, 779 (1988) (describing some of these cases as "crippl[ing]" the use of summary judgment).
219. For scholarly confirmation of the rarity of summary judgment, see, for example, Steven Alan Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183, 183-84 (1987);
220. David P. Currie, Thoughts on Directed Verdicts and Summary Judgments, 45 U. CHI. L. REV. 72, 76-78 (1977);
221. Ernest Gellhorn & William F. Robinson, Jr., Summary Judgment in Administrative Adjudication, 84 HARV. L. REV. 612, 614 (1971);
222. Samuel Issacharoff & George Loewenstein, Second Thoughts About Summary Judgment, 100 YALE L.J. 73,77-78 (1990);
223. Martin B. Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83 YALE L.J. 745, 746 (1974);
224. Stephen N. Subrin & Thomas O. Main, The Integration of Law and Fact in an Uncharted Parallel Procedural Universe, 79 NOTRE DAME L. REV. 1981,1993-94 (2004);
225. Patricia M. Wald, Summary Judgment at Sixty, 76 TEX. L. REV. 1897, 1904-06 (1998).
226. Croxen v. U.S. Chem. Corp. of Wis., 558 F. Supp. 6,7 (N.D. Iowa 1982).
227. Louis, supra note 94, at 1041.
228. Steven Alan Childress, Standards of Review in Federal Civil Appeals: Fifth Circuit Illustration and Analysis, 29 LOY. L. REV. 851, 854 (1983).
229. Celotex Corp. v. Catre, 477 U.S. 317 (1986);
230. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
231. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
232. Celotex, 477 U.S. at 327.
233. Celotex failed to adequately distinguish Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970),
234. and Matsushita failed to adequately distinguish Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962). Many legal scholars have noted the discontinuity.
235. See, e.g., Childress, supra note 102, at 18589;
236. Issacharoff & Loewenstein, supra note 102, at 79-87;
237. Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 STAN. L. REV. 1329, 1333 (2005);
238. Wald, supra note 102, at 1907-15.
239. Shortly after the trilogy, one lower court judge recognized the changing factual assumptions, although he did not explicitly link the change to summary judgment doctrine. See Jack B. Weinstein, The Ghost of Process Past: The Fiftieth Anniversary of the Federal Rules of Civil Procedure and Erie, 54 BROOK. L. REV. 1,27 (1988) ("[0]ur faith in the pool of plaintiffs-the conviction that they probably have meritorious claims else they would not come to court-is weakening.");
240. see also Louis, supra note 94, at 1034 (predicting in 1989 that we would "soon be engulfed by a resurgent anticlaimant bias fueled by a desire to make the judicial system efficient and claimants accountable").
241. See, e.g., Issacharoff & Loewenstein, supra note 102, at 73.
242. See generally Siegel, supra note 1.
243. See, e.g., Redish, supra note 108, at 1334. Although early commentators suggested that the 1986 Supreme Court trilogy caused the increase in summary judgments, more recent research suggests that the trilogy only confirmed what lower courts had already begun.
244. See Burbank, supra note 91, at 620;
245. Joe S. Cecil et al., A Quarter-Century of Summary Judgment Practice in Six Federal District Courts, 4 J. EMPIRICAL LEGAL STUD. 861 (2007). Either way, however, it does not affect my thesis that the Supreme Court's own change of doctrine rested on a shift in tacit factual assumptions.
246. FED. R. CIV. P. 12(b)(6).
247. FED. R. CIV. P. 8(a)(2).
248. Charles E. Clark, The New Federal Rules of Civil Procedure: The Last Phase-Underlying Philosophy Embodied in Some of the Basic Provisions of the New Procedure, 23 A.B.A. J. 976, 977 (1937).
249. FED. R. CIV. P. Form 11 (formerly Form 9, until the December 2007 restyling of the Rules).
250. 355 U.S. 41, 45-46 (1957).
251. Swierkiewicz v. Sorema N.A., 534 US. 506, 508 n.1 (2002);
252. see also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993).
253. See Swierkiewicz, 534 U.S. at 508;
254. Conley 355 U.S. at, 45-46.
255. 416 U.S. 232, 236 (1974).
256. Swierkiewicz, 534 U.S. at 512.
257. For descriptions of the phenomenon, see, for example, Christopher M. Fairman, Heightened Pleading, 81 TEX. L. REV. 551 (2002);
258. Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987 (2003) [hereinafter Fairman, The Myth of Notice Pleading];
259. Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749 (1998);
260. Marcus, supra note 92, at 444-51;
261. David M. Roberts, Fact Pleading, Notice Pleading, and Standing, 65 CORNELL L. REV. 390 (1980);
262. Wald, supra note 102, at 1930-33,1937-38;
263. C. Keith Wingate, A Special Pleading Rule for Civil Rights Complaints: A Step Forward or a Step Back, 49 Mo. L. REV. 677, 679-83 (1984).
264. One contemporary commentator explicitly made this connection. See Wald, supra note 102, at 1937-38 (lamenting the "unseemly rush to summary judgment").
265. Other commentators made the same connection later, after Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), discussed infra notes 129-66 and accompanying text.
266. See Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J.L. & POL'Y 61 (2007);
267. 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, 1240-41 (2008);
268. Keith N. Hylton, When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards, 16 SUP. CT. ECON. REV. 39,47-48 (2008).
269. 507 U.S. 163 (1993).
270. Swierkiewicz, 534 U.S. 506.
271. See Leatherman, 507 U.S. at 168-69;
272. see also Swierkiewicz, 534 U.S. at 515.
273. See cases cited in Twombly, 550 U.S. at 577 n.4 (Stevens, J., dissenting);
274. see also Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984) (citing Conley for liberal pleading standard and reversing lower court dismissal).
275. Subrin & Main, supra note 102, at 1997.
276. Many scholars noted the Court's unacknowledged change from earlier doctrine. See, e.g., Epstein, supra note 123, at 64 ("[Twombly] can not be defended if the only question is whether it captures the sense of notice pleading in earlier cases.");
277. Randal C. Picker, Twombly, Leegin, and the Reshaping of Antitrust, 2007 SUP. Cr. REV. 161,172;
278. Robert E. Shapiro, Advance Sheet, LITIG., Fall 2007, at 67, 67;
279. Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 MINN. L. REV. 1851, 1851-53 (2008);
280. The Supreme Court, 2006 Term-Leading Cases, 121 HARV. L. REV. 185, 305 (2007).
281. But see Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473, 474 (2010) (describing Twombly's "connection to prior law");
282. Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV. 1293,1293 (2010) (arguing that Twombly is reconcilable with earlier precedent).
283. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Again, scholars noted (and criticized) the further change rendered by Iqbal.
284. See, e.g., Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 NOTRE DAME L. REV. 849 (2010);
285. Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821 (2010)
286. . But see Steinman, supra note 129, at 1293,1298 (arguing that Iqbal is reconcilable with earlier precedent).
287. See Twombly, 550 U.S. at 550-51.
288. See id.
289. See Theatre Enters, v. Paramount Film Distrib. Corp., 346 U.S. 537, 540-41 (1954). Prior to Twombly, some lower courts had required more specific or detailed pleading to show conspiracy in antitrust cases.
290. See Fairman, The Myth of Notice Pleading, supra note 122, at 1011-21.
291. See Twombly, 550 U.S. at 564.
292. Id. at 552-53.
293. Id. at 570.
294. Id. at 555.
295. Id. at 570.
296. See id. at 545.
297. Id. at 564.
298. Id. at 562-63.
299. Id. at 569 n.14.
300. See id. at 569-70.
301. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1942 (2009).
302. Id. at 1944.
303. Id. at 1942.
304. The Court remanded the case to the lower courts for a determination of whether Iqbal should be permitted to amend his complaint. Id. at 1954. Only two Justices dissented in Twombly, whereas Iqbal was a five to four decision. That difference could be the result of the intersection of the two sets of foundational facts I discuss. Iqbal, unlike Twombly, involved discrimination, and perhaps the additional dissenters in Iqbal still believed discriminatory motives were such a likely explanation as to make the plaintiffs claims extremely plausible. It is also possible that, faced with the facts of Iqbal, the two additional dissenters examined their assumptions more closely.
305. Id. at 1953.
306. See, e.g., Kersenbrock v. Stoneman Cattle Co., No. 07-1044-MLB, 2007 WL 2219288, at *2 n.2 (D. Kan., July 30, 2007);
307. John H. Bogart, The Supreme Court Decision in Twombly: A New Federal Pleading Standard?, UTAH BUS. J., Sept.-Oct. 2007, at 20, 22;
308. Keith Bradley, Pleading Standards Should Not Change After Bell Atlantic v. Twombly, 102 Nw. U. L. REV. COLLOQUY 117, 122 (2007);
309. Allan Ides, Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice, 243 F.R.D. 604, 634-35 (2007).
310. See Bell AtI. Corp. v. Twombly, 550 U.S. 544, 549-50 (2007).
311. The Court itself came close to suggesting this. See id. at 566;
312. see also Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873, 900-09 (2009);
313. Epstein, supra note 123, at 84-90.
314. Nevertheless, Twombly is a long way from the pre-1986 case of Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), in which the Court reversed a grant of summary judgment because it agreed with the plaintiffs argument that "although she had no knowledge of an agreement... the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the noncircumstantial evidence of the conspiracy could only come from adverse witnesses." Adickes, 398 U.S. at 157.
315. See Twombly, 550 U.S. at 556.
316. Iqbal, 129 S. Ct. at 1942.
317. See id. at 1951-52.
318. Id. at 1951.
319. Id. at 1949. A plaintiffs legal assertions were never entitled to be taken as true; what Iqbal changed was the breadth of what counted as a legal (or quasi-legal) assertion.
320. Id. at 1951.
321. See id. at 1950-51.
322. See Bone, supra note 130, at 868-69.
323. See Iqbal, 129 S. Ct. at 1953-54.
324. Id. at 1953.
325. One commentator has suggested that the post-Twombly pleading regime requires plaintiffs to "describe events about which there is a presumption of impropriety." A. Benjamin Spencer, Understanding Pleading Doctrine, 108 MICH. L. REV. 1,5 (2009). This formulation seems accurate but does not delve into the broader question of whether and when the Court seems to find universal presumptions of impropriety.
326. See Iqbal, 129 S. Ct. at 1953-54;
327. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558-59 (2007). Other scholars have also noticed the Twombly Court's concern with abusive discovery in nonmeritorious cases.
328. See, e.g., Hoffman, supra note 123, at 1231-34.
329. See Hoffman, supra note 123, at 1220 & n.15 (citing cases).
330. For some preliminary but not comprehensive assessments, see, for example, Epstein, supra note 123;
331. Fairman, The Myth of Notice Pleading, supra note 122, at 1060-61;
332. Issacharoff & Loewenstein, supra note 102;
333. Tonya Jacobi, The Role of Politics and Economics in Explaining Variation in Litigation Rates in the U.S. States, 38 J. LEGAL STUD. 205 (2009).
334. See, e.g., Suzanne B. Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481, 493-94 (2004);
335. Massey, supra note 34, at 970-80.
336. See supra notes 45, 75-83 and accompanying text.
337. See, e.g., Charles S. Bullock, III & Richard E. Dunn, The Demise of Racial Districting and the Future of Black Representation, 48 EMORY L.J. 1209 (1999);
338. Richard H. Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L. REV. 1517 (2002);
339. Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 HARV. L. REV. 2208, 2216-19 (2003).
340. Grutter v. Bollinger, 539 U.S. 306, 331 (2003).
341. Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 5 & n.13 (2006) (citing sources).
342. See Goldberg, supra note 166, at 504-05.
343. Developments in Texas and California provide illustrative examples of the achievement of racial balance despite prohibitions on affirmative action. In response to Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), a case which invalidated affirmative action programs at the University of Texas, the state legislature enacted the Top Ten Percent Rule, which guarantees admission to the top ten percent of the graduating class from each high school in Texas.
344. See TEX. EDUC. CODE ANN. § 51.803 (West 2009). A survey conducted by the Office of Admissions at the University of Texas at Austin concluded that since the passage of the Top Ten Percent Rule, "diversity levels for entering freshman classes since the fall of 1998 have met or exceeded diversity levels of the fall of 1996, the last year in which a class admissions model involving affirmative action was used."
345. Gary M. Lavergne & Cindy Hargett, Perceptions and Opinions of University of Texas Entering Freshmen: The Impact of the Texas Top 10% Automatic Admissions Law, THE UNIV. OF TEX. AT AUSTIN, 1 (Sept. 10, 2006), http://www.utexas.edu/student/admissions/research/HB588survey.pdf;
346. see also Fisher v. Univ. of Tex., 645 F. Supp. 2d 587,591 (W.D. Tex. 2009) (finding a slight increase in the level of minority enrollment at the University of Texas at Austin under the post-Hopwood Top Ten Percent Rule). In California, the adoption of Proposition 209 banned "preferential treatment" in the operation of public employment and public education. CA. CONST, art. I, § 31(a). An article published a decade after the passage of Proposition 209 concluded that "minorities have maintained their levels in the public work force, including those with jobs at higher salary levels.... [A]nd their labor market position has remained relatively unchanged compared to pre-Proposition 209 levels."
347. Eryn Hadley, Did the Sky Really Fall? Ten Years After California's Proposition 209, 20 BYU J. PUB. L. 103,120 (2005). Similarly, the proportion of African American, Hispanic, and Native American persons admitted to the University of California rose from approximately seventeen to eighteen percent in the two years immediately preceding the passage of Proposition 209, to nearly twenty-three percent in 2007.
348. See UC OFFICE OF THE PRESIDENT, STUDENT AFFAIRS DIV., OFFICE OF ADMISSION, UNIV. OF CAL. NEW CAL. FRESHMAN ADMITS, FALL 1997 THROUGH 2007, UNIV. OF CAL. OFFICE OF THE PRESIDENT, Table A (2007), http://www.ucop.edu/news/ factsheets/2007/fall-2007-admissions-table-a.pdf.
349. On the difference between discrimination and subordination, see, for example, Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 HARV. L. REV. 1470 (2004). Siegel argues that the Court since Brown has changed its interpretation of the Equal Protection Clause from one embodying a principle of antisubordination to one embodying a principle of anticlassification. See id. But the widespread adoption of affirmative action suggests that other actors value antisubordination.
350. 129 S. Ct. 2658 (2009).
351. Id. at 2673.
352. Id. at 2678.
353. See id. at 2682-83 (Scalia, J., concurring);
354. see also Primus, supra note 65.
355. 129 S. Ct. 2504,2511-13 (2009). Justice Thomas went even further in his partial dissent, finding section 5 of the Voting Rights Act unconstitutional because "[t]he extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists." Id. at 2525 (Thomas, J., dissenting in part).
356. Id. at 2511-12 (majority opinion).
357. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
358. See, e.g., Lu-IN WANG, DISCRIMINATION BY DEFAULT. HOW RACISM BECOMES ROUTINE (2006);
359. Martha Chamallas, Deepening the Legal Understanding of Bias: On Devaluation and Biased Prototypes, 74 S. CAL. L. REV. 747 (2001);
360. John F. Dovidio, On the Nature of Contemporary Prejudice: The Third Wave, 57 J. SOC. ISSUES 829 (2001);
361. Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. REV. 945 (2006);
362. Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005);
363. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995);
364. Audrey J. Lee, Unconscious Bias Theory in Employment Discrimination Litigation, 40 HARV. C.R.C.L. L. REV. 481 (2005);
365. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458 (2001);
366. Symposium, Unconscious Discrimination Twenty Years Later: Application and Evolution, 40 CONN. L. REV. 927 (2008).
367. See, e.g., Chamallas, supra note 181, at 749-55;
368. Rang, supra note 181, at 1593.
369. See Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 VAND. L. REV. 849,851 (2007);
370. see also Krieger, supra note 181, at 1245-46.
371. For a critique of the empirical basis of the literature on unconscious discrimination, see Gregory Mitchell & Philip E. Tetlock, Antidiscrimination Law and the Perils of Mindreading, 67 OHIO ST. L.J. 1023 (2006).
372. For empirical support for the proposition that unconscious bias need not translate into biased actions, see Jeffrey J. Rachlinski et al.. Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195 (2009).
373. See Bagenstos, supra note 170 (suggesting strong judicial and political resistance to restructuring antidiscrimination law along these lines).
374. 534 U.S. 506 (2002).
375. Id. at 515.
376. See id. at 514.
377. Because Swierkiewicz involved age and nationality discrimination rather than race discrimination, it might be possible that the factual assumptions differ depending on the type of discrimination alleged.
378. 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 (2008).
379. Because "civil rights" cases in this study included only cases brought under 42 U.S.C. §§ 1981, 1982, and 1983 and cases brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), it is hard to know how Title VII and other employment discrimination cases were affected.
380. See id. at 1836 n.161. Another, less comprehensive study shows that Twombly appears to have had some effect on employment discrimination cases.
381. See A. Benjamin Spencer, Pleading Civil Rights Claims in the Post-Conley Era, 52 HOW. L.J. 99, 145-49 (2008);
382. see also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 974 (11th Cir.'2008) (dismissing complaint that alleged plaintiffs were "denied promotions... and treated differently than similarly situated white employees solely because of . . . race");
383. 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) (anecdotal evidence). A more recent study also found a statistically significant rise in dismissals of civil rights cases.
384. See Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. 553, 556-57 (2010).
385. Preliminary results from a study by the Administrative Office of United States Courts suggest a less dramatic rise, but that study looks at all 12(b) motions and thus might understate the rise in 12(b)(6) grants. ADMIN. OFFICE, MOTIONS TO DISMISS (2010), http://www.uscourts.gov/uscourts/ RulesAndPolicies/rules/Motions-to-Dismiss-060110.pdf.
386. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).
387. See, e.g., Ruth Bader Ginsburg, Communicating and Commenting on the Courts Work, 83 GEO. LJ. 2119 (1995);
388. David Hricik & Victoria S. Salzmann, Why There Should Be Fewer Articles Like This One: Law Professors Should Write More for Legal Decision-Makers and Less for Themselves, 38 SUFFOLK U. L. REV. 761 (2005);
389. Judith S. Kaye, One Judges View of Academic Law Review Writing, 39 J. LEGAL EDUC. 313 (1989);
390. Michael D. McClintock, The Declining Use of Legal Scholarship by Courts: An Empirical Study, 51 OKLA. L. REV. 659 (1998);
391. Richard A. Posner, The Present Situation in Legal Scholarship, 90 YALE L.J. 1113 (1981);
392. Louis J. Sirico, Jr. & Beth A. Drew, The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Analysis, 45 U. MIAMI L. REV. 1051 (1991);
393. Louis J. Sirico, Jr. & Jeffrey B. Margulies, The Citing of Law Reviews by the Supreme Court: An Empirical Study, 34 UCLA L. REV. 131 (1986). Advocates, too, might benefit from understanding the hidden factual assumptions at issue in various doctrines and might resurrect the idea of the "Brandeis brief." For more on Brandeis briefs,
394. see MELVIN I. UROFSKY, LOUIS D. BRANDEIS: A LIFE 215-17 (2009).
395. See, e.g., Has the Supreme Court Limited Americans'Access to Courts?: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 7 (2009) (statement of Stephen B. Burbank, Professor, University of Pennsylvania Law School);
396. Bone, supra note 130;
397. Edward D. Cavanagh, Twombly: The Demise of Notice Pleading, the Triumph of Milton Handler, and the Uncertain Future of Private Antitrust Enforcement, 28 REV. LITIG. 1 (2008);
398. Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 VA. L. REV. IN BRIEF 135 (2007);
399. Brian Thomas Fitzsimons, The Injustice of Notice & Heightened Pleading Standards for Antitrust Conspiracy Claims: It Is Time to Balance the Scale for Plaintiffs, Defendants, and Society, 39 RUTGERS L.J. 199,206 (2007);
400. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431 (2008);
401. see also Hoffman, supra note 123, at 1236 ("[Critics have] primarily couched their arguments against overregulation at the pleading stage by reference to the longstanding pleading standard from Conley and/or to the related conception that a heightened judicial pleading power is inconsistent with the 'liberal ethos' of the federal rules.").
402. The most recent empirical research on discovery suggests that it does not impose undue burden or expense. EMERY G. LEE III & THOMAS E. WILLGING, FED. JUDICIAL CTR., NATIONAL, CASEBASED CIVIL RULES SURVEY 35-45 (2009), http://www.fjc.gov/pubIic/pdf.nsf/lookup/dissurv1. pdf/$file/dissurv1. pdf.