This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal.
I then report results indicating that even using this large collection of data -- the most comprehensive data assembled to date to address this question -- we cannot tell whether “TwIqbal” supporters or critics are more correct about the efficacy of the new plausibility pleading regime in the pre-discovery filtering of cases according to merit. This null result points to the very real possibility that plausibility pleading’s case-quality effects -- a quintessential empirical question -- simply can't be answered using data.
This paper’s basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal.
Gelbach, Jonah B., "Material Facts in the Debate Over Twombly and Iqbal" (2016). Faculty Scholarship at Penn Law. 1539.