This Article presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions. Using nearly 2000 randomly selected employment discrimination and contract cases, the Article tries to assess the performance of Twombly and Iqbal, which raised the federal pleading standard, in filtering cases according to merit. This Article begins by explaining how such data might be helpful in making such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal.

This Article ultimately concludes that even using this large collection of data—the most comprehensive data assembled to date on the subject—it is not possible to determine whether “Twiqbal1’s” supporters or critics are more accurate in their assessments of the efficacy of the new plausibility pleading regime with respect to its ability to filter cases according to merit at the prediscovery stage. This null result points to the very real possibility that plausibility pleading’s case-quality effects—a quintessential empirical question—simply cannot be answered using data.

This Article’s basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal.


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