A paper now circulating in SSRN (and forthcoming in Judicature) explores the impact of Twombly and Iqbal on dismissal rates and does so with an interesting methodological twist. A New Look: Dismissal Rates in Federal Civil Cases, by Scott Dodson (Hastings), contributes to the growing empirical literature by coding at the individual claim--rather than the case--level. The abstract follows.
"In the wake of Twombly and Iqbal, a number of studies have been conducted to determine the decisions' effects on dismissal practice in federal civil cases. However, those studies have tended to code whole cases rather than claims -- leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute -- and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.
This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim -- rather than whole case -- subject to an adjudicated Rule 12(b)(6) motion. For each claim, I also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.
The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. I also find an increase in the relative prevalence and efficacy of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the relative prevalence and efficacy of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both movant strategy and judicial reasoning."