(Cross-posted at Prawfs).
Recently a call for nominations came out on the civil procedure listserv: what’s the worst civil procedure case ever. Nominations poured in–even as Pepperdine’sexcellent symposium on this worst topic was all-but-ignored. Sadly, recency bias trumped careful thought, and a plurality of respondents focused on Twiqbal. In some ways this is an unsurprising result. Twiqbal hit a sweet spot for modern scholars. The decisions together appear to be politically conservative (fitting modern progressives’ newfound suspicion of the Supreme Court); they cry out for empirical examination (fitting modern scholars’ newfound love of counting things); and they produce a test whose indeterminacy makes socratic dissection easy.
But here’s the thing: dozens of scholars have spent enormous effort on these problems, and have found essentially no observable effects on party and judge behavior, whether in or out of Court. In that way, Twiqbal is a black hole for scholarship — its sucks in quants and non-quants alike in, but nothing comes out.
Consider two recent papers — one by Jonah Gelbach, forthcoming in Stanford, and one by Roger Michalski and Abby Wood, under review. As a part of a dazzling empirical & game-theoretic analysis, Gelbach points out that “a reasonable observer could conclude that the heated debates over the empirical evidence on Rule 12(b)(6) motion grant rates haven’t—couldn’t—shed any light at all on the actual effects of Twombly and Iqbal.” (Emphasis added.) Michalski and Wood, studying state adoption of Twiqbal, conclude that whether “at the federal or state level, attorneys and judges are either not as attuned to procedural changes as many commentators think they are, or plaintiffs were already pleading with factual specificity so as to negotiate earlier and more favorable settlements.” And yet, as they point out, “many academics, practitioners, and commentators simply refuse to believe that the switch from notice pleading to plausibility pleading would not have an empirical effect.”
What’s going on? Is this motivated cognition by progressive proceduralists, who can’t admit that the worst cases of their generation (or any!) had no measurable effects? (That’s not to say that Twiqbal hasn’t had an effect in the world – just not one that is observable.) Because their priors are so strong, later evidence is discounted. As such, Twiqbal is quickly becoming a progressive proceduralist’s shibboleth: to belong to the academy community (and to be welcome at conferences), one has to agree that plausible pleading is implausible, evil, and otherwise wrongheaded. Defending the decision is like defending Lochner. It can be done, but you really ought to teach at Mason.
Or is it something else? Maybe Twiqbal has attracted attention not because it actually represents a change in practice today (after all, no one was truly engaging in notice pleading) but rather because the cases represent a watershed in procedure – the beginning of a return to a pre-1938 code or fact pleading regime. Like Doleor Printz, it’s a signal of a revolution that’s coming. My colleague Craig Green has worked over the last several years to identify certain cases as iconic, particularly retrospectively — will Twiqbal be such an icon in another few generations?