Preferred Citation: Hon. T.S. Ellis, III and Nitin Shah, Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach, 114 Penn St. L. Rev. Penn Statim 64 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 64.pdf.
Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach
114 Penn St. L. Rev. Penn Statim 64. Published August 8, 2010. View as PDF.
By Hon. T.S. Ellis, III and Nitin Shah.
The Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have triggered a lively and heated debate over the federal threshold pleading standard. This debate is far from new. Distilled to its essence, the fundamental issue presented by this debate—the ease with which a claimant may nudge open the doors of a federal court—is the same issue that has been debated since well before the adoption of the Federal Rules of Civil Procedure. And we think it is safe to say that this issue will continue to be debated long after the dust settles on the current eruption.
As is typical of many policy debates, the debate over the merits and demerits of Iqbal and Twombly has been characterized by almost as much heat as light. Opponents of the decisions contend the decisions have the effect of closing federal courthouse doors to claimants with meritorious claims; they decry this assault on fair access to the courts. No less dramatic is proponents’ contention that the decisions are a necessary safeguard against an onslaught of frivolous claims cooked up by plaintiffs’ lawyers to pry open courthouse doors so they can use discovery as a weapon to extort settlements. Both sides’ contentions do little to advance the debate. No one disagrees with the contention that there should be fair access to the courts and that claimants with meritorious claims should not be denied this access. Similarly, no one denies that there should be proper safeguards to prevent claimants from using meritless claims merely to arm themselves with the weapons of discovery. These two contentions do not advance the debate for they assume the questions at issue, namely whether Iqbal and Twombly, contrary to their authors’ intent, have resulted in closing courthouse doors to meritorious claims or whether those opinions, consistent with their authors’ intent, have served to shut courthouse doors only to meritless claims asserted in the hope of coercing a settlement.
This Essay’s very modest objective is to move the debate toward a source of light (rather than heat) by focusing on the following questions:
1. What, if anything, has changed in the nature and volume of litigation to warrant the move from the pleading standard enunciated in Conley v. Gibson to the one prescribed by Iqbal and Twombly?
2. What, if any, are the effects of Iqbal and Twombly?
3. Should Iqbal and Twombly be modified or changed—and if so, how?
These questions are an easily recognizable application of the sensible principle that one needs to know where one has been and where one is now before one can decide in which direction to head in the future. And the limited purpose of this Essay is to suggest that we cannot answer the third question with any confidence unless we have a reasonably accurate understanding of the answer to the first question and unless we have valid empirical data pertinent to the second question.[keep reading]