The Twiqbal Puzzle and Empirical Study of Civil Procedure
Engstrom, David Freeman, Stanford Law Review
INTRODUCTION I. TWIQBAL AND ELS IN FULL FLOWER A. Gelbach and Boyd et al. on the Twiqbal Puzzle B. The Technological Flowering of ELS: Electronic Docketing and Computer Text Processing C. ELS and Methodological Cross-Pollination II. FORESTS, TREES, AND THE CHALLENGE OF ASSESSING PROCEDURAL CHANGE: THE LIMITS OF TWIQBAL EMPIRICISM A. Measurement and Methods 1. Sampling bias 2. Covariate controls B. The Elusiveness of Social Welfare 1. Unit of analysis 2. Selection and settlement 3. Salutary and non-salutary judicial merits-screening C. Does It Matter? A Twiqbal Empiricism Meta-Analysis III. Is THE BLOOM OFF THE ROSE? LESSONS FOR EMPIRICAL STUDY OF CIVIL PROCEDURE A. The Double-Edged Sword of Democratization B. The Way Forward
Few developments in civil procedure have caused anything like the furor that has greeted the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly (1) and Ashcroft v. Iqbal (2) (hereinafter "Twiqbal"). (3) Indeed, earlier installments in the modern transformation of pretrial practice--from the rise of summary judgment, as symbolized by the Supreme Court's 1986 Celotex trilogy, (4) to the serial expansion of judicial case-management powers under Rules 16 and 26 and the related spread of "managerial judging" (5)--look like blips on the scholarly radar by comparison. (6) Yet the reaction to Twiqbal has not just been notable for its volume or intensity. The reaction has also, to an unusual degree, tended toward the empirical. In fact, it sometimes seems as if a hundred empirical flowers have bloomed, each purporting to capture something significant about the decisions' on-the-ground impact. (7)
Why the empirical turn? One reason is that the flimsiness of the Court's doctrinal analysis--particularly its insistence that it has not overruled Conley--(8)--offers thin gruel for serious academic commentary of the traditional sort. Part of it, too, is that Twiqbal presents correspondingly rich empirical puzzles that cry out for analysis, particularly the Court's contention that trial judges can use their "judicial experience and common sense" to efficiently cull meritless cases based on allegations alone and without the benefit of discovery. (9) But perhaps most important of all, the profusion of empirical work since Twiqbal makes clear that quantitative empirical legal studies (or "ELS" to its practitioners (10)) is no longer the province of J.D./Ph.D. types working in specialized corners of the legal academy. Rather, the systematic collection and analysis of litigation-related data is now fully within the mainstream of what civil procedure scholars do. At risk of tautology, there is more empirical work this time around--compared to, say, the period following the Court's Celotex trilogy (11)--because more people are doing it.
Questions remain, however, as to the nature, role, and desirability of this empirical turn. Just how much can we learn from the recent spate of Twiqbal empiricism, whether about pretrial practice in particular or civil procedure more generally? Is the democratization of the ELS genre a healthy development, or is empirical inquiry better left in the hands of a few increasingly sophisticated technicians? And what lessons can we draw from the recent profusion of Twiqbal studies about what empirical study of civil procedure should look like going forward? This Essay uses the Twiqbal decisions and the empirical work they have spurred as a point of entry to consider these questions and reflect upon the contribution that ELS, now in its third decade, (12) has made (and can make) to the study of civil procedure.
I. TWIQBAL AND ELS IN FULL FLOWER
A. Gelbach and Boyd et al. on the Twiqbal Puzzle
Two stellar contributions to the recent Conference on Empirical Legal Studies (CELS) at Stanford Law School--both focused, more or less, on the Twiqbal puzzle--provide a useful starting point for addressing the above questions by offering a glimpse of ELS in full flower. …