Earlier this week, I argued that civil procedure empiricists are spending too much time on the Twiqbal problem. That’s not the same as saying that Twiqbal is an unimportant set of cases. It probably signals an important shift in federal pleading doctrine, and, arguably, some litigants we care about are being shut out of federal court. I mean to say merely this: the amount of attention paid to Twiqbal is exceeding its importance to litigants (over state and federal court). Our focus is being driven largely by data availability and law professor incentives. We can do better.
I’m starting to make a genre of these “people should be writing about X not Y” posts. Boy, that could get tiresome fast! Luckily, no one actually has to listen to me except for the poor 1Ls. In any event, it seemed useful to start a conversation about what topics are more worth writing about than Twiqbal. Use the comment thread below to generate a list and if there’s enough interest I’ll create a poll. To qualify, the topic has to be real-data-driven (i.e., not merely doctrinal analysis, not experimental, etc.); and there must be a way, in theory, to get the data. For example,
- Does law influence outcomes in small claims court?
- How well do choice of law clauses work in state court?
- When do attorneys matter?
- What are the determinants of summary judgment grant rates in state courts?
- Is there a way to get a handle on which cases are being “diverted” to arbitration or “carved-[back]-in“?