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Material Facts In The Debate Over Twombly And Iqbal, Jonah B. Gelbach
Material Facts In The Debate Over Twombly And Iqbal, Jonah B. Gelbach
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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” …
The Pleading Problem In Antitrust Cases And Beyond, Herbert J. Hovenkamp
The Pleading Problem In Antitrust Cases And Beyond, Herbert J. Hovenkamp
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In its Twombly decision the Supreme Court held that an antitrust complaint failed because its allegations did not include enough “factual matter” to justify proceeding to discovery. Two years later the Court extended this new pleading standard to federal complaints generally. Twombly’s broad language has led to a broad rewriting of federal pleading doctrine.
Naked market division conspiracies such as the one pled in Twombly must be kept secret because antitrust enforcers will prosecute them when they are detected. This inherent secrecy, which the Supreme Court did not discuss, has dire consequences for pleading if too much factual specificity …