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Monday, March 16, 2015

Proceduralists' Shibboleths

Recently a call for nominations came out on the civil procedure listserv: what's the worst civil procedure case ever.  Nominations poured in--even as Pepperdine's excellent symposium on this worst topic was all-but-ignored. Sadly, recency bias trumped careful thought, and a plurality of respondents focused on Twiqbal.  In some ways this is an unsurprising result. Twiqbal hit a sweet spot for modern scholars.  The decisions together appear to be politically conservative (fitting modern progressives' newfound suspicion of the Supreme Court); they cry out for empirical examination (fitting modern scholars' newfound love of counting things); and they produce a test whose indeterminacy makes socratic dissection easy.

But here's the thing: dozens of scholars have spent enormous effort on these problems, and have found essentially no observable effects on party and judge behavior, whether in  or out of Court. In that way,  Twiqbal is a black hole for scholarship -- its sucks in quants and non-quants alike in, but nothing comes out.  

Consider two recent papers -- one by Jonah Gelbach, forthcoming in Stanford, and one by Roger Michalski and Abby Wood, under review.  As a part of a dazzling empirical & game-theoretic analysis, Gelbach points out that "a reasonable observer could conclude that the heated debates over the empirical evidence on Rule 12(b)(6) motion grant rates haven’t—couldn’t—shed any light at all on the actual effects of Twombly and Iqbal."  (Emphasis added.) Michalski and Wood, studying state adoption of Twiqbal,  conclude that whether "at the federal or state level, attorneys and judges are either not as attuned to procedural changes as many commentators think they are, or plaintiffs were already pleading with factual specificity so as to negotiate earlier and more favorable settlements." And yet, as they point out, "many academics, practitioners, and commentators simply refuse to believe that the switch from notice pleading to plausibility pleading would not have an empirical effect."

What's going on? Is this motivated cognition by progressive proceduralists, who can't admit that the worst cases of their generation (or any!)  had no measurable effects? (That's not to say that Twiqbal hasn't had an effect in the world - just not one that is observable.)  Because their priors are so strong, later evidence is discounted.  As such, Twiqbal is quickly becoming a progressive proceduralist's shibboleth: to belong to the academy community (and to be welcome at conferences), one has to agree that plausible pleading is implausible, evil, and otherwise wrongheaded.  Defending the decision is like defending Lochner. It can be done, but you really ought to teach at Mason.

Or is it something else? Maybe Twiqbal has attracted attention not because it actually represents a change in practice today (after all, no one was truly engaging in notice pleading) but rather because the cases represent a watershed in procedure - the beginning of a return to a pre-1938 code or fact pleading regime. Like Dole or Printz, it's a signal of a revolution that's coming. My colleague Craig Green has worked over the last several years to identify certain cases as iconic, particularly retrospectively -- will Twiqbal be such an icon in another few generations?

Posted by Dave Hoffman on March 16, 2015 at 01:32 PM in Civil Procedure | Permalink



Great points, thanks!

Posted by: dave hoffman | Mar 17, 2015 4:36:08 PM

As someone who finds pleading to be a difficult regulatory problem and who doesn't think that either the Conley or the Twombly/Iqbal approach is self-evidently correct, I also find the academic reaction to Twombly and Iqbal interesting. I think that reaction reflects a handful of factors.

First, the Twombly and Iqbal decisions are utterly insensitive to points that many proceduralists emphasize in the 1L course: the asymmetrical distribution of liability information between plaintiffs and defendants; the corresponding need for a state-supervised investigative mechanism if plaintiffs are to successfully prosecute claims; the folly of resolving cases on the papers long emphasized by Charles E. Clark. To professors who have spent their professional careers teaching these points, it must have been disheartening to see major Supreme Court decisions that barely engaged them.

Second, Twombly and Iqbal reopened a debate that academic proceduralists thought they had won. For years, the academy led a rearguard action against the expansion of more rigorous threshold case screening that originated in the district courts. In Swierkiewicz and Leatherman, the Court seemed to side with the academy, holding that in the absence of action by the advisory committee, the Rules were the Rules. Twombly’s unexpected change of course – in the face of the advisory committee’s studied non-action – undoubtedly left many with the feeling of the rug being pulled out from under them.

Lastly, both decisions reached results that many readers find substantively obnoxious. Whatever the merits of plausibility pleading, it’s difficult to escape the feeling that in Twombly and then Iqbal, the Court sided with the “haves” over the “have nots.” That privileging may “appear to be politically conservative.” But from the perspective of an American proceduralist, the more important point is its tension with the form of “equipage equality” that many think is one of the Rules’ central achievements.

These points are all latent, I think, in Clermont, Yeazell, and Spencer’s excellent reactions to Twombly and Iqbal – though of course they also advocate traditional notice pleading.

Posted by: David N | Mar 17, 2015 12:29:41 PM

1. Nothing goes to a jury anymore. You know that. You should just decide for yourself -- perhaps under a plausibility standard. I've heard that such a standard is both evil and insignificant.

2. Oh. Got it. I thought you were making fun of my name.

Posted by: Plaid Man | Mar 17, 2015 12:16:07 PM

1. Well, the jury is out.

2. No, anonymous commentators generally. I don't get the appeal.

Posted by: dave hoffman | Mar 17, 2015 12:06:29 PM

1. Except when they don't, right -- as in this instance?

2. My name, you mean?

Posted by: Plaid Man | Mar 17, 2015 11:11:44 AM

1. Because anonymous commentators make threads worse, usually: http://concurringopinions.com/archives/2012/03/the-tragedy-of-anonymous-comment-threads.html

2. Because it's weird.

Posted by: dave hoffman | Mar 17, 2015 10:52:20 AM

"dave hoffman" --

Why do you care, exactly, whether someone posts anonymously or not? If a post is out of line, it's no less so for being attached to a particular person. And I'd think the converse is likewise true. So why do you care?

Also: Plaid Man is indeed my real name. I had weird parents.

Posted by: Plaid Man | Mar 17, 2015 9:47:57 AM


I agree, but of course proceduralists main complaint about Twiqbal is that it would have practical effects.

On an unrelated topic, why wouldn't you post something as sensible as this under your own name?

Posted by: dave hoffman | Mar 17, 2015 9:16:03 AM

If one used real-world effects as the metric of whether Supreme Court opinions are effective, I have to imagine the number of "terrible" opinions goes up dramatically. The Supreme Court is undoubtedly one of the ten most influential individual legal institutions in the country. But if affecting people on the ground is the metric, it pales in comparison to courts of appeals, which develop their own practices that the Supreme Court supervises only sporadically and which influence litigant behavior much more directly than SCOTUS, or any number of agencies within the executive branch.

Posted by: Anonprof | Mar 17, 2015 8:15:47 AM

Come now, Dave, you can't post like this without telling us *your* nominee.

Posted by: Anderson | Mar 16, 2015 5:39:07 PM

Yes, Cecil's study for the motion-filing rate. I suppose we can disagree about the appropriateness of the term "upheaval," but there's plenty of anecdotal evidence from judges and practitioners supporting it. My basic point is that there are data to support a cost increase caused by Twiqbal, and if there aren't attendant positive gains to offset the cost increase (which was the whole point of the cases anyway), then the cases would still qualify as terrible decisions. (For the record, I did not weigh in as classifying them as the worst procedural decisions of all time on the listserv.)

Posted by: Scott Dodson | Mar 16, 2015 4:24:18 PM

In terms of motion filing rate, are you thinking of the Cecil study?

And I'm not sure that changing Conley's quote counts as upheaval, nor the demise of the forms, to the extent that no one was actually using them, as another of Joe's studies has found.


Posted by: dave hoffman | Mar 16, 2015 3:03:53 PM

Having no measurable effects on practice might also justify them as terrible opinions. The whole point of Twiqbal's upheaval--which includes the abrogation of Conley's famous and oft-repeated "no set of facts" language, the demise of the federal forms, and the measurable and statistically significant effect of increasing the motion-filed rate--was to make a change in pleading standards seen as beneficial to the system. If no positive change has resulted, then they could be terrible cases for that reason alone, even if (perhaps especially if) you think plausibility pleading is normatively good.

Posted by: Scott Dodson | Mar 16, 2015 1:59:19 PM

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