A new study shows that the heightened pleading standard established by the Supreme Court in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) is preventing ordinary Americans from having their day in court.

For fifty years, plaintiffs were required only to plead a “short plain statement” of facts, under Conley v. Gibson (1957), in order to reach the discovery stage of litigation. The ability to conduct discovery is a crucial component of access to justice, because defendants often possess the evidence that plaintiffs need to prove their cases.

In Twombly and Iqbal, the Roberts Court introduced a stricter “plausibility” standard, requiring a plaintiff to plead factual content from which a court can draw the reasonable inference that the defendant is liable for the misconduct alleged. If a plaintiff is not able to plead sufficient facts to convince the court to allow her claims to proceed, she will never be able to conduct the discovery that might have led to that factual information.

In the face of widespread criticism of the new pleading standard, defenders of the Court’s rulings have pointed to a study published by the Federal Judicial Center in March 2011 that reported no increase in the rate at which federal judges grantedg motions to dismiss without leave to amend in the wake of Iqbal and Twombley.

However, a new study by Jonah Gelbach, forthcoming in the Yale Law Journal, indicates that simply comparing dismissal rates pre- and post-Twombly and Iqbal does not reveal the true effects of those decisions.  Rather, Gelbach highlights that defendants are 50 percent more likely to file a motion to dismiss post-Twombly and Iqbal, presumably because they recognize that the heightened pleading standard increases their chances of getting the claims against them dismissed. Thus, even if the overall dismissal rate has not changed, a higher percentage of cases are being dismissed. Gelbach concludes that 20 percent more cases are dismissed before discovery can be conducted under Twombly/Iqbal than were dismissed under Conley.

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