The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard

This Article attempts to assess, empirically, whether the Court’s introduction of the so-called “plausibility standard” in the context of civil pleadings has had a disparate impact on civil rights claims, particularly in employment and housing discrimination cases. In a previous study conducted by one of the co-authors of this Article, it was revealed that in a sample of employment and housing discrimination cases, courts were more likely to dismiss these cases based on the lack of specificity of the pleadings after the Court’s decision in Iqbal. Furthermore, that study also found, after Iqbal, a significant rise in both the number of reported decisions in such cases on motions challenging the specificity of the pleadings, as well as a significant rise in the number of decisions dismissing such actions. To describe these findings and explore their implications, this Article proceeds as follows. Part II provides a brief overview of the evolution of pleading standards, from the introduction of the federal rules to the issuance of Twombly and Iqbal. Part III will provide an overview of past studies on the impact of these decisions on litigation in the federal courts, explore some of the implications of the plausibility standard and the due process questions it raises. Part IV describes the methodology and findings of this study and explores some of the implications of these findings