Politics, Identity, and Pleading Decisions on the U.S. Courts of Appeals

67 Pages Posted: 12 Jan 2022 Last revised: 2 Mar 2022

See all articles by Stephen B. Burbank

Stephen B. Burbank

University of Pennsylvania Carey Law School

Sean Farhang

U.C. Berkeley Law School

Date Written: January 5, 2022


We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly in civil rights cases.

We then empirically examine the extent to which the party (of appointing president), gender, and racial composition of panels are associated with their disposition of 12(b)(6) appeals across all policy areas pooled, also separately analyzing discrimination claims, all “other civil rights” claims, and non-civil rights claims. We separately analyze a random sample of (predominantly non-precedential) cases and a set of only precedential cases.

In our random sample of cases, we find that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample.

The results are different when the panel is making law. In precedential cases, we find that Democratic panels were significantly more likely to decide in favor of plaintiffs in non-civil rights claims. We also find that panels with one woman were more likely to decide precedential other civil rights claims in favor of plaintiffs, and that panels with two women (but not one) were more likely to do so in non-civil rights claims.

Our results for gender contradict conventional wisdom in the literature that women judges’ preferences differ from men’s only in cases implicating discrimination. They add to evidence suggesting the possibility that procedural law affecting access to justice may itself be a policy domain in which women have different (more pro-access) preferences that extend beyond discrimination claims. Gender, alone among the judge characteristics we study, is significant in both random sample and precedential-only models, and in both civil rights and non-civil rights models, revealing a distinctive propensity among women on the Courts of Appeal to support plaintiffs’ access to discovery.

Finally, significant variation in our results across the random sample and precedential cases highlights the risk of error in drawing general inferences from either significant or null results in precedential cases—general inferences that are widespread in the literature on the Courts of Appeals.

Keywords: Federal judges, circuit courts, judicial diversity & behavior, panel effects, political affiliation, ideology, gender & race, complex litigation, civil rights, discrimination, Federal Rules of Civil Procedure, empirical studies, motions to dismiss, Rule 12(b)(6), Twombly, Iqbal

Suggested Citation

Burbank, Stephen B. and Farhang, Sean, Politics, Identity, and Pleading Decisions on the U.S. Courts of Appeals (January 5, 2022). University of Pennsylvania Law Review, Vol. 169, p. 2127, 2021, U of Penn Law School, Public Law Research Paper No. 22-06, Available at SSRN: https://ssrn.com/abstract=4006660

Stephen B. Burbank (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Sean Farhang

U.C. Berkeley Law School ( email )

694 Simon Hall
Berkeley, CA 94720
United States

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