Plaintiphobia in the Supreme Court

17 Pages Posted: 31 Oct 2013 Last revised: 14 Jan 2014

See all articles by Kevin M. Clermont

Kevin M. Clermont

Cornell Law School

Theodore Eisenberg

Cornell University, Law School (Deceased)

Date Written: December 26, 2013


Through the years debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that rates’ difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations of pretrial disposition during the last three decades, had a markedly anti-plaintiff impact.

Keywords: civil procedure, pleading, summary judgment, empirical

JEL Classification: K40, K41

Suggested Citation

Clermont, Kevin M. and Eisenberg, Theodore, Plaintiphobia in the Supreme Court (December 26, 2013). University of Pennsylvania Law Review, Vol. 162, No. 7, 2014, Available at SSRN: or

Kevin M. Clermont (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-5189 (Phone)
607-255-7193 (Fax)

Theodore Eisenberg

Cornell University, Law School (Deceased) ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics