Abstract

http://ssrn.com/abstract=2262068
 


 



The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard


Raymond H. Brescia


Albany Law School

Edward J. Ohanian


Albany Law School

May 7, 2013

Akron Law Review, Vol. 46, 2013 (Forthcoming)
Albany Law School Research Paper No. 5 for 2013-2014

Abstract:     
Is civil procedure political? In May of 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, which explicitly extended the “plausibility standard,” first articulated in Bell Atlantic v. Twombly two years earlier, to all civil pleadings. That standard requires that pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil Procedure, must state a plausible claim for relief. For many, these rulings represented a sea change in civil pleading standards. Where prior Supreme Court precedent had provided that a pleading should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim,” the new standard requires that judges utilize their own “judicial experience and common sense” to determine whether claimants have set forth facts sufficient to “nudge their claims across the line from conceivable to plausible.” In the years since their issuance, this standard has provoked many questions. One such question, which lurks behind all otherwise neutral rules of procedure is the following: could this apparently neutral principle of procedure be subject to political manipulation?

After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily. Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents. As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal). This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.

The study revealed a statistically significant relationship between the outcomes in civil rights cases and time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and post-Iqbal) where the political affiliation of the president who appointed the judge reaching the decision in each case was Republican. For cases decided by judges appointed by Democrat-affiliated presidents, no such relationship was observed. This paper reports on the findings of this study and discusses their implications.

Number of Pages in PDF File: 45

Keywords: civil procedure, Bell Atlantic v. Twombly, Ashcroft v. Iqbal

JEL Classification: K41

Accepted Paper Series


Download This Paper

Date posted: May 8, 2013 ; Last revised: August 13, 2014

Suggested Citation

Brescia, Raymond H. and Ohanian, Edward J., The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard (May 7, 2013). Akron Law Review, Vol. 46, 2013 (Forthcoming); Albany Law School Research Paper No. 5 for 2013-2014. Available at SSRN: http://ssrn.com/abstract=2262068

Contact Information

Raymond H. Brescia (Contact Author)
Albany Law School ( email )
80 New Scotland Avenue
Albany, NY 12208
United States

Edward J. Ohanian
Albany Law School ( email )
80 New Scotland Avenue
Albany, NY 12208
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,244
Downloads: 158
Download Rank: 108,866

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.438 seconds