While the Twombly and Iqbal decisions separately and collectively helped galvanize empirical work in civil procedure in terms of access to federal courts, now that we're well into a post-Twombly and Iqbal world sufficient data exist to begin to test various normative claims regarding whether the two procedure decisions amplify the potential impact of judge ideology. And in a new paper, Politics, Identity, and Pleadings Decisions on the U.S. Courts of Appeals, Stephen Burbank (Penn) and Sean Farhang (Berkeley) set out to do just that.
To do so, the authors drew a random sample of 700 cases from the universe of cases post-Iqbal through 2019 that involved a Court of Appeals review of a district court decision on whether to dismiss for failure to state a claim under Rule 12(b)(6). The paper focuses on "the extent to which the party (of appointing president), gender, and racial composition of panels are associated with their disposition of 12(b)(6) appeals." Key findings include "that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample."
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