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Kentucky Law Journal
Volume 100

2011– 2012

Number 2

articles

The Iqbal Effect: The Impact of New Pleading
Standards in Employment and Housing
Discrimination Litigation
Raymond H. Brescia1
Introduction

F

or centuries, when dealing with the facts alleged by litigants in their
pleadings, courts have struggled with the question of how much is
enough. At what point does a pleading contain facts in sufficient detail to
allow a case to proceed? For too long, common law pleading rules were rife
with tricks and traps. Courts could dismiss cases for one pleading misstep
or poorly turned phrase. Two major changes to pleading rules occurred
over the last two hundred years. First, the adoption of the Field Code
in New York in the middle of the nineteenth century led many states
to either enact their own version of the Code or undertake procedural
reform.2 Second, the adoption of the Federal Rules of Civil Procedure,
1 Visiting Clinical Associate Professor of Law, Yale Law School; Assistant Professor of
Law, Albany Law School; J.D., Yale Law School (1992); B.A., Fordham University (1989).
Many friends and colleagues provided wonderful feedback on previous drafts of this piece, including Ian Ayres, Dennis E. Curtis, William Eskridge, James Follain, Jonah Gelbach, Patricia
Hatamyar Moore, Alex Reinert, Elizabeth Renuart, Judith Resnik, and Michael Wishnie. I
am grateful to the participants in the Albany Law School Scholarship Workshop Series for
their helpful comments as I was conceptualizing this piece, including James Gathii, Thomas
Guernsey, Robert Heverly, Mary Lynch, Debra Mann, Nancy Maurer, David Pratt, Rosemary
Queenan, and Donna Young. After oral presentations of this work, Muneer Ahmad, James
Forman, Jr., Heather Gerken, Doni Gewirtzman and Deidre Hill offered valuable feedback
that I attempted to incorporate into this draft. My research assistants on this project, Tabitha
Edgens, Mark Kittel, Kathryn Lang, and Meghan McDonough, as well as my legal assistant,
Fredd Brewer, also provided invaluable assistance with this piece. All errors or omissions are,
of course, mine. Another biographical matter that I should disclose, as more fully set forth below, is the fact that I had some involvement in the litigation that culminated in the Supreme
Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009): the legal services
office at which I was working at the time, the Urban Justice Center, was first retained by Mr.
Iqbal and his co–plaintiff well before the commencement of the suit, and continued to represent him until I left the agency in the spring of 2007. My direct involvement in the action was
limited, however. See infra notes 11–12.
2  The Field Code, named for David Dudley Field, the head of a law reform commission
in New York, was adopted in 1848, with almost all states adopting some form of civil procedure reform by the end of the century. For a discussion of the Field Code, see Lawrence M.

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in 1938, transformed federal practice through notice pleading and liberal
discovery rules. In this century, it would seem that we have already had
our moment of change, represented by a possible tectonic shift in the case
law surrounding pleading requirements that is already having a profound
impact on the courts and litigants across the country. This development in
the law surrounding pleading standards—making them more restrictive,
and thus limiting access to the courts—is consistent with other, parallel
trends in civil litigation in U.S. courts.
In what is swiftly becoming a landmark ruling, the Supreme Court, in
May 2009, issued its decision in Ashcroft v. Iqbal,3 a case brought by an
immigrant of Pakistani descent caught up in the worldwide investigation
that followed the horrific attacks of September 11, 2001. The defendants in
Iqbal challenged the sufficiency of the allegations in the complaint, and the
Supreme Court found that many of those allegations were conclusory, and
still others were not pled with sufficient detail to satisfy the requirements
of the Federal Rules of Civil Procedure, specifically Rule 8(a).4 In Iqbal,
the Court built on a precedent from just two years earlier—Bell Atlantic
v. Twombly—which had imposed a “plausibility” requirement on civil
pleadings in federal court,there, in the context of an antitrust case.5
Since this decision, the “plausibility standard,” first articulated in
Twombly and elaborated on in Iqbal, is now the yardstick against which
all civil filings in federal court must be measured.6 Moreover, some state
courts have adopted the plausibility standard in assessing pleadings before
them, despite the fact that the federal rules obviously do not apply in those
jurisdictions.7
Friedman, A History of American Law 391–98 (2d ed. 1985). See infra text accompanying
notes 20–25.
3  Iqbal, 129 S. Ct. at 1937.
4  Id. at 1949–52.
5  Id. at 1947; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). In Twombly, the Court
found that allegations of parallel conduct by several telecommunications companies as reflected in common price fluctuations in products and services sold by these companies, with
nothing more, failed to meet the pleading requirement of the federal rules. Id. at 554–57. The
Court found that the claims of illegal conduct in that case were implausible given another,
more likely reason for the similar conduct of market actors: for example, that the market had
caused similar price movements in the cost of telephone service, and not any illegal, conscious
conduct of the defendants. Id. at 564–70.
6  As the Iqbal majority made clear: “Our decision in Twombly expounded the pleading
standard for ‘all civil actions,’ and it applies to antitrust and discrimination suits alike.” Iqbal,
129 S. Ct. at 1953 (quoting Fed. R. Civ. P. 1).
7 Since Twombly and Iqbal, the highest courts in Massachusetts and Nebraska, and a
lower court in Delaware, have adopted the plausibility standard under their own pleading
requirements. See, e.g., Estate of Williams v. Corr. Med. Serv., Inc., No. 09C–12–126 WCC, 2010
WL 2991589, at *3 n.14 (Del. Super. Ct. July 23, 2010); Iannacchino v. Ford Motor Co., 888
N.E.2d 879, 890 (Mass. 2008); Doe v. Bd. of Regents of the Univ. of Neb., 788 N.W.2d 264,
278 (Neb. 2010). At the same time, courts in several states have explicitly rejected a plausibil-

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Despite this shift in pleading requirements, the Supreme Court has
offered little guidance to the lower federal courts on the contours of the
plausibility standard. This standard has also not proven durable or popular
in substance with the lower trial courts. Indeed, as the oral argument in the
Iqbal matter appears to reveal, even the Justices themselves seem somewhat
unsure of the exact nature of the plausibility standard, or how to apply it.
Furthermore, the Court placed its faith in federal judges’ subjective views
on pleadings, urging them to use their “experience and common sense” to
determine whether a complaint pleads plausible facts.8
In the two years since the Court reached its decision in Iqbal, that
opinion has been cited roughly 25,000 times. After Twombly, and again
after Iqbal, many expressed fears that the new plausibility standard would
grant judges wide ranging discretion to dismiss cases the claims of which
did not comport with their experience and common sense. There was a
particular fear about this discretion impacting civil rights cases adversely:
that members of the federal bench hostile to such claims would wield these
precedents to dismiss cases that met with their disfavor.
Initial research into the impact that these pleading requirements have
had on civil cases in general and civil rights cases in particular would appear
to reveal a modest impact, at best, on civil litigation generally, and civil
rights cases in particular. Mostly this research has measured the dismissal
rates on motions to dismiss filed before and after these precedents.9 And
these studies have yielded mixed results, with some showing a rise in
dismissals in all civil filings after the decision in Twombly, especially in
civil rights cases, while internal research conducted by the courts does not
appear to support such findings across the board.10 Apart from the mixed
ity standard. See, e.g., McKelvin v. Smith, No. 2090779, 2010 WL 5030130, at *4–5 (Ala. Civ.
App. Dec. 10, 2010) ; Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 430
(Tenn. 2011) ; McCurry v. Chevy Chase Bank, 233 P.3d 861, 863 (Wash. 2010). Interestingly,
at least one Ohio court has found not only that the Conley “no set of facts” standard still applies, but also that the plaintiff must still allege facts that are plausible. See Williams v. Ohio
Edison, No. 92840, 2009 Ohio App. LEXIS 4786, at *7–8 (Ohio Ct. App. Oct. 29, 2009). For a
discussion of the application of the plausibility standard in state court proceedings, see Roger
Michael Michalski, Tremors of Things to Come: The Great Split Between Federal and State Pleading
Standards, 120 Yale L.J. Online 109 (2010).
8  Iqbal, 129 S. Ct. at 1950.
9  See, e.g., Joe S. Cecil et al., Motions to Dismiss for Failure to State a Claim after
Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules 1, 10 (Fed.
Judicial Ctr., 2011) [hereinafter Cecil Report], available at http://ssrn.com/abstract=1878646;
Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am.
U. L. Rev. 553, 554–56 (2010).
10  See, e.g., Kendall W. Hannon, Note, Much Ado About Twombly? A Study of the Impact of
Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 Notre Dame L. Rev. 1811, 1838 (2008)
(showing that, in the four months following the Court’s decision in Twombly, there was a 39.6%
greater chance that a civil rights case would be dismissed when compared to all other cases
analyzed). A recent study compiled for the federal Judicial Conference Advisory Committee

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results, this prior research may have had some shortcomings, and this study
attempts to fill the gaps left by this previous body of work.
The goal of this study is to assess whether Twombly’s plausibility standard
has begun to impose a higher bar on certain civil rights plaintiffs. The fear
is that the plausibility standard leaves judges with too much discretion—
discretion that may harm those plaintiffs who may have difficulty alleging
facts to overcome a particular judge’s subjective skepticism of civil rights
claims. This fear was expressed by many observers (including myself),11
in amicus briefs filed in Iqbal,12 and through scholarly treatments of the
plausibility standard.13 Given the nature of the standard, a fear is that with
such a blunt instrument, judges will have broad discretion to apply the
standard to weed out otherwise meritorious cases, simply because such
cases do not seem to mesh with a particular judge’s experience and his or
her common sense.
An initial issue that arises, that raises questions about these previous
studies, is that this body of research has typically involved analysis of
outcomes in cases that go beyond the key question in Twombly and Iqbal:
that is, whether pleadings provide sufficient detail to raise a plausible claim
for relief. Furthermore, a second, related question goes to the fact that little
has been done to assess the quality of decisions through a review of the
on Civil Rules found there to have been little change in dismissal rates without leave to
amend when comparing results in two samples of decisions, one sample taken from before the
Supreme Court’s decision in Twombly and another after its decision in Iqbal. Cecil Report,
supra note 9, at 21. See infra text accompanying notes 93–102 for further discussion of this
study. In one area, however, described as dealing with “financial instruments,” the dismissal
rates were markedly higher after Iqbal. See Cecil Report, supra note 9, at 21.
11  In the interest of full disclosure, this author participated in the litigation that ultimately came to be known as Ashcroft v. Iqbal since before the matter was even filed in federal
court. Prior to joining the faculty at Albany Law School, I was a supervising attorney at the
Urban Justice Center (UJC) in New York City, the non–profit legal services office that was
Mr. Iqbal’s initial counsel in the case. I then supervised the staff who handled the matter
from its inception, including Megan Lewis, Andrew Kashyap, and Haeyoung Yoon, who all
handled different aspects of the case while UJC was co–counsel on the matter. I do not wish
to overstate my role, however. My staff followed the direction of lead counsel in the case, the
firm of Koob & Magoolaghan, and, later, pro bono co–counsel from the firm of Weil Gotshal &
Manges. As a result of these co–counsel arrangements, my personal involvement was limited.
After leaving the UJC, I then teamed up with John E. Higgins, Esq., of Nixon Peabody, LLP,
and Umair Khan and Robert Magee, law students at Albany Law School at the time, in drafting an amicus brief filed with the Supreme Court in support of Mr. Iqbal.
12  Brief of Amici Curiae Japanese Am. Citizens League et al. in Support of Respondent,
Iqbal, 129 S. Ct. 1937 (No. 07–1015), 2008 U.S. S. Ct. Briefs LEXIS 893 (co–authored by this
author). A large number of civil rights and other groups and individuals filed amicus briefs
on behalf of the respondents. See, e.g., Brief of Professors of Civil Procedure & Fed. Practice
as Amici Curiae in Support of Respondents, Iqbal, 129 S. Ct. 1937 (No. 07–1015), 2008 U.S.
S. Ct. Briefs LEXIS 884; Brief of Nat’l Civil Rights Orgs. as Amici Curiae in Support of
Respondents, Iqbal, 129 S. Ct. 1937 (No. 07–1015), 2008 U.S. S. Ct. Briefs LEXIS 896.
13  For an overview of some of the critiques of these opinions, see infra notes 100–04 and
accompanying text.

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manner in which the so–called plausibility standard is being applied, if at
all, by the district courts when dismissing claims. Finally, this research goes
beyond mere dismissal rates to look at the volume of decisions dismissing
cases, and the number of motions litigants are facing on these grounds.
Because previous studies looked broadly at dismissal rates only, it would
appear that they have overlooked what may be the most significant impact
of Iqbal. Indeed, what my research reveals is that the number of dismissals
on the grounds that the pleadings were not sufficiently specific has risen
dramatically after that decision, a fact that is missed by looking solely at
dismissal rates, and not the volume of dismissals.
This Article attempts to step into these apparent gaps in the empirical
research, first by ensuring that the analysis reviews only cases in which
the specificity of the pleadings were tested. Prior studies have reviewed
outcomes in all motions to dismiss, including those filed on grounds not
related to the specificity of the pleadings: for example, where a statute of
limitations defense was raised or the defendant alleged the plaintiff had
not exhausted his or her administrative remedies. Since such defenses
were viable before Twombly and Iqbal, and are not related to the plausibility
or specificity of the allegations in the pleadings per se, the Twombly and Iqbal
precedents bear no relation to the merits of such motions and should have
no impact on their outcome. In order to narrow the focus of any Twombly/
Iqbal inquiry, this study focuses only on the outcomes in cases where
defendants challenged the specificity of the pleadings through a motion to
dismiss or motion for judgment on the pleadings.
Other innovations of this study include the following: it focuses
explicitly and strictly on civil rights actions involving allegations of
employment and/or housing discrimination; it looks at the quality of the
decisions by assessing how lower courts are deploying the plausibility
standard; it reviews the extent to which judges appear to be applying their
experience and common sense to solve pleading challenges before them,
as urged by the Court; finally, it has more of a body of post–Iqbal cases to
review than previous studies.
In summary, this analysis yielded a few key findings from the cases
studied, some of which are inconsistent with the initial fears about the
impact of Twombly and Iqbal, and some of which bear those fears out.
First, it seems that the Supreme Court’s decision in Twombly itself had
little impact on motions challenging the sufficiency of the pleadings in
the employment and housing discrimination cases analyzed for this study.
The study shows that the dismissal rate of the cases reviewed during a
set time period immediately prior to that decision was actually higher
than the dismissal rate of decisions reviewed in the time period between
issuance of the Twombly and Iqbal decisions. Then the dismissal rates in
the cases reviewed actually increased considerably after Iqbal. Indeed, the
dismissal rates for the pre–Twombly cases in the database used in this study

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was sixty–one percent; for those issued between Twombly and Iqbal and
analyzed here, it was fifty–six percent; but then, for those issued after Iqbal
and which became a part of this study, it was seventy–two percent. Second,
dismissal rates “with prejudice” do not seem to rise much at all, after either
Twombly or Iqbal. Another, counter–intuitive finding is that one can explain
the drop in the dismissal rate between Twombly and Iqbal by pointing to
the success of litigants pursuing disparate impact cases, particularly those
pursuing challenges to reverse redlining practices of mortgage lenders
during the height of the subprime mortgage crisis. Since some might fear
Twombly and Iqbal would impact more novel or creative civil rights theories
more dramatically, it would appear that, at least with respect to this class of
cases during the time period analyzed, those fears were unfounded.
Apart from dismissal rates, plaintiffs in the employment and housing
cases studied were far more likely after Iqbal than before Twombly to face
a motion to dismiss challenging the specificity of the pleadings. Indeed,
among the cases analyzed, decisions on such motions were generated only
twelve times in the first quarter of 2004 (the first quarter analyzed), but
then sixty times in the third quarter of 2010 (the last full quarter analyzed).
This represents a five hundred percent increase. Similarly, when looking
at the number of decisions dismissing complaints issued during the pre–
Twombly and post–Iqbal periods, we see another dramatic increase, one
of nearly 300% from the pre–Twombly period to the post–Iqbal period. At
the same time, there was just a thirty–four percent increase from the pre–
Twombly period to the period post–Twombly but before Iqbal.
When comparing Twombly and Iqbal, then, it would appear that it is the
latter case that has had a much greater and adverse impact on these types
of civil rights cases than the former, at least within the universe of cases
analyzed in this study.
When it comes to the quality of these decisions, something else appears
to be happening as well, something few might have predicted. Despite
the increased dismissal rate following Iqbal, oddly, in a class of cases
analyzed for this study,14 courts rarely invoked the plausibility standard in
the same manner it was utilized by the Supreme Court in Twombly and
Iqbal; that is, courts rarely found that a case should be dismissed because
a judge considered there to be a more plausible, and entirely legal, basis
for the complained of conduct. Thus, the Court’s approach to assessing
plausibility, as utilized in both Twombly and Iqbal, is one that is rarely used
by district courts when dismissing cases for pleading inadequacies. Finally,
14  When looking at the use of the plausibility standard, the study reviewed the largest
class of cases identified in the database: i.e., non–disparate impact cases in which the motion
was granted and all claims dismissed. This subset was made up of ninety–five cases—roughly
fifteen percent of all cases analyzed in this study. In these decisions, the claims were dismissed
in their entirety with prejudice. Given that, I operated under the assumption that it is in this
class of cases that courts were likely to invoke the plausibility standard in a robust way.

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and similarly, judges rarely, if ever, appear to invoke their own “experience
and common sense,” as urged by the Court, when ruling on motions to
dismiss in these cases.
Perhaps these findings raise more questions than they answer. Do they
suggest that courts are ignoring the substance of the heightened pleading
standard, yet interpreting Twombly and Iqbal as license to dismiss cases more
readily? Does the nature of the standard leave judges with broad discretion
to dismiss cases that do not comport with their “experience and common
sense?” In any event, two things are clear: motions to dismiss challenging
the sufficiency of the pleadings are much more common since Iqbal, and
far more cases are being dismissed after the release of that decision than
before. At least in this regard, then, the initial fears about the impact of
Twombly and Iqbal seem well founded, regardless of whether the dismissal
rates have changed dramatically, the lone issue on which prior studies of
the impacts of these decisions seemed to focus.
While this study did introduce some innovations to the methodology
utilized here, it also has its limitations. First, the database utilized was
made up of only decisions published in electronic form. It does not include
all decisions in all district courts during the time period specified. Some
argue that decisions on motions to dismiss in which the motion is granted
are more likely to be reported than those in which the motion is denied.
While this may be the case, this study uses published decisions in all three
time periods studied.15 There is nothing to indicate that if such a bias exists,
it is more likely to exist in one time period than another. Admittedly, the
outcomes in this study are a reflection of the data used. No broader claim is
made about outcomes in all civil rights cases, or even all employment and
housing discrimination cases.
Moreover, some sampling was done to identify a universe of cases to
analyze, as more fully described below.16 While certain qualifiers were used
to narrow this universe, and the exact same search terms were not used in
each search that was conducted to compile the database, the study utilized
a large sample size of well over 600 cases. While there may have been
some limitations to the methodology used, there is no claim here that the
outcomes generated by this study are a reflection of all outcomes in all civil
rights cases litigated in all federal courts from 2004 through 2010. Rather,
my goals here are quite modest: to attempt to identify potential trends
from a relatively narrow class of cases.
This article proceeds as follows. Part I provides a brief overview of the
history of pleading requirements in federal and state courts, leading up
to the adoption of the Federal Rules of Civil Procedure. This Part then

15  See infra Part II.B.
16  See infra Part II.C.

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reviews the Supreme Court’s decisions in Conley v. Gibson,17 Bell Atlantic
v. Twombly18 and Ashcroft v. Iqbal,19 placing a special emphasis on the
development of the Iqbal case, from the trial court, through to the decisions
of the Second Circuit Court of Appeals and, ultimately, the Supreme Court.
Part II contains the results of the empirical analysis conducted for this
study.
I.  Pleading Requirements, Then and Now
A.  Pre–FRCP History, Rule 8(a) and Conley v. Gibson
With the adoption of the new Federal Rules of Civil Procedure in
1938, the drafters intended to eliminate the costly and burdensome “fact
pleading” system then in place, choosing, instead, a “notice pleading”
approach. Under fact pleading, popular after the adoption of the Field Code
in New York,20 litigants could dismiss their opponents’ claims or defenses
for improper reference to “mere evidence” or “conclusions,” which were
prohibited, as opposed to “ultimate facts,” which were required.21 Divining
the difference between these categories of facts proved to be challenging
at best.22 Over 50 years ago, then–Professor Jack Weinstein, commenting on
these requirements, argued as follows:
17  Conley v. Gibson, 355 U.S. 41 (1957).
18  Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
19  Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
20  For a discussion of the popularity of the Field Code, see Jack J. Cound et al., Civil
Procedure: Cases and Materials 372 (3d ed. 1980) (describing the Field code as the “prototype” for many states’ rules and the “precursor” to the Federal Rules of Civil Procedure).
21  As pointed out by Richard Marcus, “Rule 8(a)(2) was drafted carefully to avoid use of
the charged phrases ‘fact,’ ‘conclusion,’ and ‘cause of action.’” Richard L. Marcus, The Revival
of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 439 (1986).
In this 1986 work, Professor Marcus presciently wrote about his concern that the courts were
returning to fact pleading, as opposed to notice pleading, id. at 435, a concern made only more
grave after the decisions in Twombly and Iqbal.
22  One commentator described this tension as follows:
[T]here is no logical distinction between statements which are grouped by the
courts under the phrases “statements of fact” and “conclusions of law”. [sic] It will
also be found that many, although by no means all, pleadings held bad because
they are said to plead “evidence” rather than “the facts constituting the cause
of action” or defense really do nevertheless “state” the operative facts which the
pleader will have to prove at the trial, but in a form different from that to which
courts and lawyers are accustomed to recognize as a proper method of pleading.

Walter Wheeler Cook, Statements of Fact in Pleading Under the Codes, 21 Colum. L. Rev. 416, 417
(1921); see also Riley v. Interstate Bus. Men’s Accident Ass’n, 159 N.W. 203 (Iowa 1916). There
the court held as follows:
Our system of pleading is a fact system, and requires the parties to state truly and
frankly the facts upon which they rely for their action or defense. It does not allow on the one hand the statement of legal conclusions, nor on the other hand the
statement of evidence of facts; the pleading should state ultimate facts, and not the
evidence of such facts. This makes the rule on what demurrer admits somewhat

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It is now generally conceded that it is virtually impossible
logically to distinguish among “ultimate facts,” “evidence,” and
“conclusions.” Essentially any allegation in a pleading must be
an assertion that certain occurrences took place. The pleading
spectrum, passing from evidence through ultimate facts to
conclusions, is largely a continuum varying only in the degree of
particularity with which the occurrences are described.23

The Federal Rules of Civil Procedure was supposed to have been
an improvement to the Field Code, under which litigants were to draw
these distinctions in their pleadings.24 Interestingly, that Code itself had
been instituted in the 19th Century to simplify the byzantine common law
pleading requirements then in force.25
A significant innovation in pleading, Rule 8(a) of the Federal Rules of
Civil Procedure requires nothing more than the following:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in
the alternative or different types of relief.26

Roughly fifteen years after adoption of the Federal Rules, the Supreme
Court interpreted the meaning of this Rule. In Conley v. Gibson, the Courtdifficult of application. The demurrer will not admit a pure conclusion, and the
pleader may not plead his evidence. All that the demurrer can ever admit then is
something which states ultimate facts as distinguished either from legal conclusions or a setting out of the evidence to prove them. 

Id. at 205 (citations omitted).
23 Jack B. Weinstein & Daniel H. Distler, Comments on Procedural Reform: Drafting
Pleading Rules, 57 Colum. L. Rev. 518, 520–21 (1957).
24  For the history of the Field Code and the adoption of the Federal Rules of Civil
Procedure to respond to the perceived shortcomings of it, see Matthew A. Josephson, Note,
Some Things Are Better Left Unsaid: Pleading Practice After Bell Atlantic Corp. v. Twombly, 42
Ga. L. Rev. 867, 874–77 (2008). For a bibliography of books and articles relating to the history
of the adoption of the Federal Rules of Civil Procedure, see Thomas E. Baker, Federal Court
Practice and Procedure: A Third Branch Bibliography, 30 Tex. Tech L. Rev. 909, 1032–40 (1999).
25  American pleading practice, though somewhat tailored to meet the needs of litigants
in U.S. courts, was largely adopted from British common law pleading requirements. Friedman
described those as follows:
Pleading was an elaborate contest of lawyerly arts, and winning a case did not always depend on substantive merits. There were too many rules, and they were too
tricky and inconsistent. The idea behind English pleading was not itself absurd.
Pleading was supposed to distill, out of the amorphousness of fact and fancy, one
precious, narrow issue on which trial could be joined. Principles of pleading were,
in theory, principles of economy and order. Pleading demanded great technical
skill. Those who had the skill—highly trained lawyers and judges—saw no reason
to abandon the system.

Friedman, supra note 2, at 145.
26 Fed. R. Civ. P. 8(a)(1)–(3).

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surveyed the pleadings in a civil rights action and found them adequate.27
The standard the Court used in assessing the sufficiency of the pleadings
was impressive in its generosity; it found that a complaint should not be
dismissed for failure to state a claim under Rule 12(b)(6) unless it was clear
that a plaintiff could never establish any grounds for relief:
In appraising the sufficiency of the complaint we follow, of
course, the accepted rule that a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.28

Justice Black, writing for the majority, went on to state as follows:
[T]he Federal Rules of Civil Procedure do not require a claimant
to set out in detail the facts upon which he bases his claim. To
the contrary, all the Rules require is “a short and plain statement
of the claim” that will give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.29

Until 2007, when the Court issued its decision in Bell Atlantic v.
Twombly, the Court re–affirmed this liberal approach to civil pleadings in
federal court, at one point calling it “axiomatic” that the “no set of facts”
language represented the proper standard to apply when assessing the
sufficiency of civil pleadings.30 With Twombly, however, a majority of the
Justices explicitly disavowed the “no set of facts” standard. This paper will
now address the Twombly decision and its implications.
B.  Bell Atlantic v. Twombly
The plaintiffs in Twombly alleged that the defendants’ “parallel
conduct”—such as having similar pricing schemes—gave rise to antitrust
claims.31 The plaintiffs’ position was basically res ipsa loquitor: the facts
describing such parallel conduct meant that the defendants had to have

27  Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
28  Id. at 45–46.
29  Id. at 47 (citing Fed. R. Civ. P. 8(a)(2)).
30  See, e.g., McLain v. Real Estate Bd., 444 U.S. 232, 246 (1980) (“It is axiomatic that a
complaint should not be dismissed unless ‘it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.’” (quoting Conley, 335
U.S. at 45–46)). McLain was an 8–0 ruling, with Justice Marshall taking no part in the decision. Id. at 247; see also Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746 (1976) (quoting
Conley’s “no set of facts” language with approval). Hospital Building was a unanimous decision.
Id. at 739. Interestingly, both were antitrust cases.
31  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548–50 (2007).

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conspired to act in concert.32 Since they must have done so, at least
according to the plaintiffs, they were guilty of antitrust violations.33
The Court found that such allegations were insufficient to satisfy
Federal Rule of Civil Procedure 8(a)’s requirement that the complaint
contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.”34 The Supreme Court found that where, as in the facts
before it, there were equally likely causes for the complained of conduct,
it was no more plausible that illegal conduct brought about the factual
situation than it was plausible that completely innocent conduct may have
also been the source of those facts.35 The Court went on to conclude as
follows:
The need at the pleading stage for allegations plausibly
suggesting (not merely consistent with) agreement reflects
Rule 8(a)(2)’s threshold requirement that the “plain statement”
possess enough heft to “sho[w] that the pleader is entitled to
relief.” . . . An allegation of parallel conduct is thus much like
a naked assertion of conspiracy in [an antitrust] complaint: it
gets the complaint close to stating a claim, but without some
further factual enhancement it stops short of the line between
possibility and plausibility of “entitle[ment] to relief.”36

Beyond just finding a new “plausibility standard” within Rule 8(a),37
the Court went even further, disavowing Conley v. Gibson’s “no set of
facts” standard and finding that “famous observation ha[d] earned its
retirement.”38 Elaborating, the Court observed that the Conley standard was
“best forgotten as an incomplete, negative gloss on an accepted pleading

32  See id. at 550–51.
33  Id. at 551, 553.
34  Id. at 555, 570.
35  Id. at 568–69.
36  Id. at 557 (alteration in original).
37  The appellate court below had found that the plaintiffs’ claims were plausible, but did
not use this language to articulate a pleading standard. Id. at 553. The Court then cited a district court opinion of Court of Appeals Judge Richard Posner, sitting by designation, in which
Posner found that the allegations in a complaint in an antitrust case had to be plausible to allow the litigation to enter costly discovery. Id. at 558; Asahi Glass Co. v. Pentech Pharm., Inc.,
289 F. Supp. 2d 986, 995 (N.D. Ill. 2003). Even in light of these two lower court precedents,
the plausibility standard had not entered into prior opinions of the Supreme Court on the
sufficiency of the pleadings. Rather, the Supreme Court did use the term plausibility in determining the sufficiency of allegations, but in the context of reviewing a decision on a motion for
summary judgment, which, of course, involves a very different standard. See Matsushita Elec.
Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 596 (1986) (“[T]he absence of any plausible
motive to engage in the conduct charged is highly relevant to whether a ‘genuine issue for
trial’ exists within the meaning of Rule 56(e).”).
38  Twombly, 550 U.S. at 563.

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standard: once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint.”39
Applying the plausibility standard, the Court ultimately found that
because the plaintiffs failed to “nudge[] their claims across the line from
conceivable to plausible,” the complaint had to be dismissed.40
The Court’s decision left lower courts and litigants scrambling to discern
its meaning and apply its terms. Indeed, courts across the country varied in
their interpretation of Twombly,41 with some considering its holding limited
to pleading requirements in anti–trust cases, and others applying it to all
civil matters regardless of the subject matter.42
Enter the plaintiff in Iqbal, who would offer the Court an opportunity
to answer some of the questions left unanswered by the Twombly opinion.
C.  Ashcroft v. Iqbal
1. Complaint and District Court.—As part of the global law enforcement
effort that followed the events of September 11, U.S. law enforcement and
immigration officials detained thousands of men of Arab descent found
within the United States.43 In November 2001, Javaid Iqbal, a man born
in Pakistan but residing in the United States lawfully, was arrested by
immigration and FBI officials. He was charged with conspiracy to defraud
the United States and for possessing fraudulent identification. Iqbal was
detained at the Metropolitan Detention Center (MDC) in Brooklyn, NY,
and held in the maximum security “Special Housing Unit” within the
MDC (known by its acronym, the “ADMAX SHU”).44 Iqbal alleged that
prison guards verbally and physically abused him and denied him medical
39  Id.
40  Id. at 570.
41  See, e.g., United States v. Harchar, No. 1:06–cv–2927, 2007 U.S. Dist. LEXIS 47028, at
*4 (N.D. Ohio June 28, 2007) (“Twombly merely held that a complaint that alleged only parallel conduct did not state a claim for an antitrust conspiracy.”). For a discussion of interpretations of the substantive reach of Twombly’s holding pre–Iqbal, see Gregory L. Grattan, Note,
The Gatekeepers Keep Changing the Locks: Swanson v. Citibank and the Key to Stating a Plausible
Claim in the Seventh Circuit Following Twombly and Iqbal, 6 Seventh Circuit Rev. 1, 11–12
(2010).
42  Janice R. Ballard, Comment, Bell Atlantic v. Twombly: Has the Court Re–Set the Bar with
a Heightened Pleading Standard?, 32 Am. J. Trial Advoc. 183, 198–201 (2008) (“[T]he mammoth
weight of the case law suggests that Bell Atlantic [sic] has unquestionably outstripped its
initial contextual boundaries.”).
43  Elmaghraby v. Ashcroft, No. 04 CV 01809 JG SMG, 2005 WL 2375202, at *2 (E.D.N.Y.
Sept. 27, 2005), aff’d in part, rev’d in part sub nom., Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007),
rev’d sub nom., Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Mr. Elmaghraby was dropped from the
suit when he settled his claims for $300,000. See Nina Bernstein, U.S. is Settling Detainee’s Suit
in 9/11 Sweep, N.Y. Times, Feb. 28, 2006, at A1.
44  First Amended Complaint & Jury Demand at 15, Elmaghraby v. Ashcroft, No. 1:04–
cv–01809–JG–SMG (E.D.N.Y. Sept. 27, 2005).), 2004 WL 3756442.

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care.45 After pleading guilty to the charges filed against him, though none
had anything to do with terrorism, he was ultimately deported to Pakistan
in January of 2003.46
In September 2004, Iqbal and another individual exposed to the
same treatment, Ehab El Maghraby, filed suit in federal district court for
the Eastern District of New York, alleging a range of constitutional and
statutory violations of their rights.47 The defendants in the action included,
among others, various prison guards, the warden at MDC, Attorney General
Ashcroft, and FBI Director Mueller.48 The complaint alleged that anyone
among those detainees swept up in the September 11th investigation
would be classified as “of interest” to that investigation, even if they faced
no terrorism–related charges.49 The complaint further alleged that Ashcroft
and Mueller approved “[t]he policy of holding post–September–11th
detainees in highly restrictive conditions of confinement until they were
‘cleared’ by the FBI.”50 Ashcroft, it was further alleged, was the “principal
architect” of this policy51 and Mueller was “instrumental in [its] adoption,
promulgation, and implementation.”52
With respect to the harsh conditions of confinement, it was alleged that
these two defendants “knew of, condoned, and willfully and maliciously
agreed to subject [Iqbal] to these conditions of confinement as a matter of
policy, solely on account of [his] religion, race, and/or national origin . . . .”53 
After Ashcroft and Mueller filed motions to dismiss pursuant to Rule
12 of the Federal Rules of Civil Procedure for the alleged failure to state a
claim, the trial court ruled against these defendants, deploying the “no set
of facts” language from Conley v. Gibson.54
2.  Court of Appeals.—After Judge Gleeson denied most of the bases for
the Iqbal defendants’ motions to dismiss, the matter was appealed to the
Second Circuit. The Supreme Court had already granted certiorari in Bell
Atlantic v. Twombly, but the decision was not issued in that case until after
oral argument before the Second Circuit. Ultimately, the Second Circuit
reversed in part Judge Gleeson’s prior decision, but affirmed those aspects
45  Id.
46  Iqbal, 490 F.3d at 149.
47  Elmaghraby, No. 04 CV 01809 JG SMG, 2005 WL 2375202, at *2.
48  First Amended Complaint & Jury Demand, supra note 44, at 4–10.
49  Id. at 11.
50  Id. at 13–14.
51  Id. at 4.
52  Id. at 4–5.
53  Id. at 17–18; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1944 (2009) (recounting allegations in the complaint).
54  See Elmaghraby v. Ashcroft, No. 04 CV 01809 JG SMG, 2005 WL 2375202, at *29
(E.D.N.Y. Sept. 27, 2005). 

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of it related to the sufficiency of the allegations related to Ashcroft and
Mueller’s involvement in setting the challenged policies.55
Applying Twombly’s plausibility standard to the allegations of the
complaint, the Second Circuit turned first to the plaintiff’s procedural due
process claim. Considering the language in the complaint, i.e., that Ashcroft
and Mueller had “condoned” the challenged policy, the court looked to the
context of the suit to assess the plausibility of the allegations. Because of the
high priority given the law enforcement effort in the wake of the attacks of
September 11, the court found it plausible that both Ashcroft and Mueller
did indeed condone the challenged policy.56 Despite the finding that these
allegations were plausible given the context, the court ultimately found
that, because the right purportedly violated was not a clearly established
right at the time of such violation, the procedural due process claim could
not survive the defendants’ qualified immunity defense and warranted
dismissal.57
Turning to the claims of discrimination, Ashcroft and Mueller
challenged the specificity and the plausibility of Iqbal’s claims that they
had knowledge of and condoned the allegedly discriminatory treatment
of the plaintiff. Looking once again to the post–September 11 context
in which the claim arose, the Second Circuit found it plausible that the
Attorney General and Director of the FBI were aware of and condoned the
discriminatory practices to which Iqbal alleged he was subject.58
Ultimately, the Second Circuit found that these allegations were
sufficient to satisfy even the strictures of the new plausibility standard
articulated in Twombly.59
3.  Supreme Court.—Ashcroft and Mueller then sought review of the
appellate decision by writ of certiorari to the Supreme Court. Review was
granted by the high Court,60 which heard oral argument on the matter in
early December, 2008.
a.  Oral Argument: The Elusiveness of the Plausibility Standard
Solicitor General Gregory Garre, arguing for the petitioners, stated
that the first error of the appellate court was that it “conclud[ed] that the
55  Iqbal v. Hasty, 490 F.3d 143, 147 (2d Cir. 2007). As the Second Circuit opinion pointed out, plaintiff Iqbal was of Pakistani, and thus, not Arab, descent. Id. at 148 n.2. Regardless,
according to the appellate court, Iqbal alleged that he was singled out for treatment based on
his ethnicity, if not his perceived race. Id.
56  Id. at 166.
57  Id. at 167–68.
58  Id. at 175–76.
59  Id. at 177–78.
60  Ashcroft v. Iqbal, 554 U.S. 902 (2008).

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complaint stated a violation of clearly established rights by the former
Attorney General and Director of the FBI.”61 By framing the argument
in this way, just as the petitioners had done in their briefs,62 Garre had
staked the position that in a case where a defendant may invoke a defense
of qualified immunity, a plaintiff must plead certain specific facts in the
complaint that would permit that plaintiff to overcome such a defense:
including, that the defendant had violated clearly established rights. Several
of the justices questioned whether a plaintiff must anticipate potential
defenses that a defendant might not even raise, when such an issue is best
left to the summary judgment phase of the proceeding, if at all.63
As to plausibility, Justice Souter, the author of the Twombly opinion,
stated that in that prior case, there was no evidence that might suggest that
illegal conduct was a more likely explanation for the allegations of parallel
conduct in that antitrust case.64 The bulk of the Justices’ questioning
surrounding the plausibility of plaintiff’s claims was then left mostly to
plaintiff’s counsel.
Following Garre’s argument, Alex Reinert took the podium on behalf
of Iqbal. The discussions between Reinert and the Justices, and even,
apparently, between the Justices themselves, reveal that the plausibility
standard appears elusive, even to the Court. Reinert initially faced a series
of questions from Justice Scalia regarding the plausibility of the allegations
in the complaint.
Justice Scalia, relying on the Court’s application of the plausibility
standard in Twombly, asserted that in the instant situation it was “much
less plausible” that higher level officials had knowledge of the conduct
alleged than they had not.65	
After some back–and–forth between
the Justices and Reinert, Justice Souter stepped in with what he admitted
may have been a “softball question.”66 Building on earlier questioning from
Justice Breyer, during which it was asked whether a complaint would seem
plausible if a plaintiff alleged that the president of a beverage company
was responsible if a consumer found a mouse in a bottle, Justice Souter
stated that he was “starting with the assumption” that in Twombly “the
context tells us how specific” a complaint has to be.67 He then asked if the
complaint in Iqbal was based on the assumption that “it is more plausible
61  Transcript of Oral Argument at 3, Iqbal, 129 S. Ct. 1937 (No 07–1015).
62  See Initial Brief of Appellant–Petitioners at 6, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)
(No. 07–1015), 2008 U.S. S. Ct. Briefs LEXIS 740 at *14–15; Reply Brief: Appellant–Petitioner
at 1–3, Iqbal, 129 S. Ct. 1937 (No. 07–1015), 2008 U.S. S. Ct. Briefs LEXIS 1104 at *1–4.
63  See, e.g., Transcript of Oral Argument, supra note 61, at 4 (Ginsburg, J.); id. at 9 (Souter,
J.).
64  Id. at 10.
65  Id. at 33.
66  Id. at 40.
67  Id.

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that the Attorney General of the United States and the Director of the
FBI were in fact directly involved in devising a policy with the racial
characteristics and the coercive characteristics that you claim, than that the
President of Coca Cola was putting mouses (sic) in bottles?”68
Chief Justice Roberts, then followed up on Justice Souter’s question,
again, comparing the allegations against a president of a company as
opposed to allegations made about the actions of the Attorney General,
asking “how are we supposed to judge whether we think it’s more unlikely
that the president of Coca–Cola would take certain actions as opposed to
the Attorney General of the United States?”69
After some exchanges between the Justices and Reinert, Justice Scalia
asked whether the plaintiff’s allegation that he had been held without any
legitimate penological reason was sufficient to create a plausible claim for
relief.70 This led to this exchange, which is recounted at length:
JUSTICE SCALIA: . . . [I]s that the only basis – after an attack
on the country of the magnitude of 9/11, is that the only basis
on which people can be held? Namely that these people are the
– are the guilty culprits, and we are going to put them in jail?
MR. REINERT: Well –
JUSTICE SCALIA: Surely for at least a period, you can hold
people just – just to investigate?
MR. REINERT: Well, Justice Scalia, I don’t think for a period
it’s constitutional to hold them solely based on their race,
religion, and national origin. And if it is –
JUSTICE SCALIA: Well, it wasn’t solely on that.
MR. REINERT: Well, that is the allegation. If it is, that’s an issue
to be dealt on the merits, exactly as this Court did in Johnson v.
California.
JUSTICE SCALIA: But the net was surely not cast wide enough
if anybody with that race, religion was – was swept in.
MR. REINERT: Well –
JUSTICE SCALIA: I mean, if it’s solely for that reason, there
would have been hundreds of thousands of others.
MR. REINERT: Justice Scalia, that is the allegation in the
complaint, that as individuals were encountered –
JUSTICE SCALIA: – implausible.71

68  Id. at 40–41.
69  Id. at 41–42. As Justice Stevens pointed out, the allegations that Coca Cola was responsible for having mice in its product were purely hypothetical, and no one was suggesting
that such was the case. Id. at 43.
70  Id. at 55.
71  Id. at 55–56.

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This exchange and the previous ones described above would appear
to expose some of the tensions and shortcomings associated with the
plausibility standard, both generally, and specifically in this case. First,
Chief Justice Roberts seems to ponder whether the plausibility standard
is something a judge can even apply.72 Second, and more revealing,
Justice Scalia simply did not think it plausible that the defendants
were responsible for the treatment of the plaintiff because, apparently,
“hundreds of thousands” of other individuals would have been treated
the same way as the plaintiff if something truly had been awry.73 At the
same time, remember, it was the appellate panel below that considered
the plausibility of the plaintiff’s allegations, and found that they satisfied
that test.74 That court found the allegations plausible, with no greater
amplification, “because of the likelihood that these senior officials would
have concerned themselves with the formulation and implementation of
policies dealing with the confinement of those arrested on federal charges
in the New York City area and designated ‘of high interest’ in the aftermath
of 9/11.”75
Ultimately, the Court’s issuance of its 5–4 ruling rejecting Iqbal’s claims
provided an opportunity for the majority to amplify its own thoughts on the
plausibility standard, and it is to that opinion that I now turn.
b. Decision
In May of 2009, two years after Twombly, the Court issued its decision in
Ashcroft v. Iqbal, with Justice Kennedy writing for the majority and with that
majority siding with the former Attorney General and the FBI Director. After
dealing with some issues related to its jurisdiction, the Court articulated
“[t]wo working principles” that “underlie” the decision in Twombly.76
First, a court need not accept “[t]hreadbare recitals of the elements of a
cause of action” as true for the purposes of assessing the sufficiency of the
pleadings.77 The second working principle was the following:
[O]nly a complaint that states a plausible claim for relief survives
a motion to dismiss. Determining whether a complaint states a
plausible claim for relief will, as the Court of Appeals observed,
be a context–specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where the
well pleaded facts do not permit the court to infer more than the

72  Id. at 41–42.
73  Id. at 56.
74  Iqbal v. Hasty, 490 F.3d 143, 170 (2d Cir. 2007)), rev’d, Ashcroft v. Iqbal, 129 S. Ct. 1937
(2009). 
75  Id. at 175–76.
76  Iqbal, 129 S. Ct. at 1949.
77  Id.

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mere possibility of misconduct, the complaint has alleged–but it
has not “show[n]”–“that the pleader is entitled to relief.”78

After reviewing the allegations of the complaint through these working
principles, the majority found the complaint wanting. First, the Court
analyzed those allegations against Ashcroft and Mueller that claimed that
the two had condoned harsh conditions of confinement of the plaintiff on
invidious grounds.79 The Court found these allegations conclusory, and
thus did not accept them as true under the first working principle.80 The
“bare assertions” of involvement by Ashcroft and Mueller in condoning
these practices “amount to nothing more than a ‘formulaic recitation of the
elements’ of a constitutional discrimination claim, namely, that petitioners
adopted a policy ‘because of,’ not merely ‘in spite of,’ its adverse effects
upon an identifiable group.’”81
The Court then went on to review the allegations that the policy of
“hold until cleared” fell along racial lines against the plausibility standard.
There, the Court found the allegations similarly wanting, finding as
follows: “[t]aken as true, these allegations are consistent with petitioners’
purposefully designating detainees ‘of high interest’ because of their race,
religion, or national origin. But given more likely explanations, they do not
plausibly establish this purpose.”82
The Majority went on to review the allegations that the plaintiffs had
been targeted based on their race, religion and national origin in detail.
The Court measured them against the plausibility standard and found
78  Id. at 1950 (alterations in original) (emphasis added) (citations omitted) (quoting Fed.
R. Civ. P. 8(a)(2)).
79  Id. at 1951.
80  Id. This discussion of “conclusory” allegations in Iqbal is quite odd, given the discussion of the pleading “paradigm” articulated in Twombly itself. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 575–76 (2007). The Court, in Twombly, specifically endorsed what would appear to be
the very definition of conclusory allegations, as found in the sample pleadings accompanying
the Federal Rules themselves:
The pleading paradigm under the new Federal Rules was well illustrated by
the inclusion in the appendix of Form 9, a complaint for negligence. As relevant,
the Form 9 complaint states only: “On June 1, 1936, in a public highway called
Boylston Street in Boston, Massachusetts, defendant negligently drove a motor
vehicle against plaintiff who was then crossing said highway.” The complaint then
describes the plaintiff’s injuries and demands judgment. The asserted ground
for relief—namely, the defendant’s negligent driving—would have been called
a “conclusion of law” under the code pleading of old. But that bare allegation
suffices under a system that “restrict[s] the pleadings to the task of general notice–giving and invest[s] the deposition–discovery process with a vital role in the
preparation for trial.”

Id. (alterations in original) (citations omitted) (internal quotation marks omitted). In Twombly,
the phrase “negligently drove” a car is recognized—indeed, is held up—as an example of an
allegation that provides detail sufficient to satisfy Rule 8(a). Id. It is hard to imagine a legal
term that is more conclusory or loaded than the word “negligently.”
81  Iqbal, 129 S. Ct. at 1951 (citation omitted).
82  Id. (emphasis added).

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them implausible because there were other, alternative explanations for
the conduct that were not illegal:
The September 11 attacks were perpetrated by 19 Arab Muslim
hijackers who counted themselves members in good standing of
al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed
by another Arab Muslim – Osama bin Laden – and composed in
large part of his Arab Muslim disciples. It should come as no
surprise that a legitimate policy directing law enforcement to
arrest and detain individuals because of their suspected link to
the attacks would produce a disparate, incidental impact on Arab
Muslims, even though the purpose of the policy was to target
neither Arabs nor Muslims. On the facts respondent alleges
the arrests Mueller oversaw were likely lawful and justified
by his nondiscriminatory intent to detain aliens who were
illegally present in the United States and who had potential
connections to those who committed terrorist acts. As between
that “obvious alternative explanation” for the arrests, and the
purposeful, invidious discrimination respondent asks us to infer,
discrimination is not a plausible conclusion.83

The Majority then went on to discuss those aspects of the plaintiff’s
allegations related to the “hold until clear” policy and found them
similarly implausible. The court found that all such allegations “plausibly
suggest[]”84 is the following:
[T]hat the Nation’s top law enforcement officers, in the
aftermath of a devastating terrorist attack, sought to keep
suspected terrorists in the most secure conditions available until
the suspects could be cleared of terrorist activity. Respondent
does not argue, nor can he, that such a motive would violate
petitioners’ constitutional obligations. He would need to
allege more by way of factual content to “nudg[e]” his claim of
purposeful discrimination “across the line from conceivable to
plausible.”85

It is important to note at this juncture that the Court did not support
the position that the respondent had to have set forth claims sufficient to
overcome the petitioners’ anticipated immunity defense, as the petitioners
had requested. Rather, the majority of the Court simply found that the
allegations were implausible, or, rather, not as plausible as other, potential
explanations for some of the conduct the respondent had experienced
while in custody. This question goes to the heart of the petitioner’s claims,
not the nature of any particular defense. Even if the petitioners in Iqbal
had been private actors, without the benefit of a potential immunity

83  Id. at 1951–52 (citation omitted). For a critique of the Court’s apparent willingness
to infer that the Iqbal defendants were acting in good faith in the wake of the September 11
attacks, see Michael C. Dorf, Iqbal and Bad Apples, 14 Lewis & Clark L. Rev. 217, 218–19
(2010).
84  Iqbal, 129 S. Ct at 1952.
85  Id. (quoting Twombly, 550 U.S. at 570).

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defense, it is hard to argue that the Court would have found Iqbal’s claims
plausible. In other words, and some will disagree, Iqbal is not a case about
the allegations necessary to overcome the defense of qualified immunity, or
any other defense for that matter; rather, it is about the degree of specificity
required of plaintiffs in setting forth their affirmative claims, which is wholly
unrelated to any particular defense a defendant may or may not raise.
In a dissenting opinion written by Justice Souter, the author of the Court’s
decision in Twombly, four Justices86 dispute the conclusions reached by the
majority, specifically with regard to how the majority cast as conclusory the
allegations that Ashcroft and Mueller condoned the discriminatory policies.
Twombly does not require a court at the motion–to–dismiss
stage to consider whether the factual allegations are probably
true. We made it clear, on the contrary, that a court must take
the allegations as true, no matter how skeptical the court may
be. The sole exception to this rule lies with allegations that
are sufficiently fantastic to defy reality as we know it: claims
about little green men, or the plaintiff’s recent trip to Pluto, or
experiences in time travel. That is not what we have here.87

And there it is. Four justices and three appellate judges found the
allegations plausible; five justices did not. It is hard to argue that the
plausibility standard, as presently articulated by the Court, does not lie
in the eyes of the beholder. The elusiveness and subjective nature of the
standard thus may lend itself either to misapplication, because judges are
unclear as to how to apply it, or even worse, to abuse, with judges using it as
license to dispose of cases on their dockets regardless of their merit.
But all of this may be mere speculation. The real question is, in the
time since the Court’s decision in Iqbal, do facts on the ground—namely,
the manner in which courts are using this precedent—raise any cause for
concern that these pleading standards are having an impact on litigation in
the federal system? Moreover, should one be concerned that specific kinds
of cases may fare particularly poorly in the wake of this precedent? The
remainder of this article is dedicated to addressing these questions, and
assessing the impact of the plausibility standard, specifically in employment
and housing discrimination cases. It is to this analysis that I now turn.
II.  The Impact of the New Pleading Standards
on Employment and Housing Discrimination
In many ways, the decisions in Twombly and Iqbal are consistent with a
general trend, evident in both the courts and legislatures, that has sought
86  Justice Souter’s dissent was joined by Justices Stevens, Ginsburg, and Breyer. Id. at
1954–61. Justice Breyer also wrote a separate dissent. Id. at 1961–62.
87  Id. at 1959 (Souter, J., dissenting) (citations omitted).

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to limit access to courts, particularly federal courts, to resolve grievances.88
Where the decades following the amendment to the federal rules saw the
court house doors opened to litigants pressing civil rights claims, protecting
consumers, and reining in government overreach and abuse, over the last
three decades a backlash of sorts has occurred, and courts and legislatures
have sought to limit access to the courts through a variety of mechanisms.89
Courts have utilized a narrow reading of standing requirements to
limit access of certain plaintiffs to the courts, and have invoked other
mechanisms, such as the political question doctrine, abstention and
preclusion, to limit the types of cases that can be adjudicated.90 They have
expanded the availability of summary judgment as a tool for preventing
cases from making it to trial.91 They have narrowed the availability of
expert testimony in certain contexts.92 Furthermore, in a recent term, the
Supreme Court scaled back the availability of class action relief in certain
types of cases, signifying an end to the costs savings through economies
88  See, e.g., Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,”
“Liability Crisis,” and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?,
78 N.Y.U. L. Rev. 982, 984–85 (2003) (arguing that limitations on court access undermine core
democratic principles); Jeffrey W. Stempel, Contracting Access to the Courts: Myth or Reality? Boon
or Bane?, 40 Ariz. L. Rev. 965, 975 (1998) (noting constriction of access to federal courts). For
an analysis of the ways in which modern pleading rules fall within this trend, see Robert G.
Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 Iowa L. Rev. 873 (2009).
89  As Arthur Miller has recently argued:
Federal civil procedure has been politicized and subjected to ideological pressures.
Thus, the Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly [sic]
and Ashcroft v. Iqbal [sic] should be seen as the latest steps in a long–term trend
that has favored increasingly early case disposition in the name of efficiency, economy, and avoidance of abusive and meritless lawsuits. It also marks a continued
retreat from the principles of citizen access, private enforcement of public policies,
and equality of litigant treatment in favor of corporate interests and concentrated
wealth. To a significant degree, the liberal–procedure ethos of 1938 has given way
to a restrictive one.

Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil
Procedure, 60 Duke L.J. 1, 9–10 (2010) (footnotes omitted).
90  The literature on the political nature of many of these doctrinal matters is extensive,
a recounting of which is beyond the scope of this article. For example, there is extensive
scholarship examining just the standing doctrine. See, e.g., William A. Fletcher, The Structure
of Standing, 98 Yale L.J. 221, 223 (1988) (describing the “lawlessness” of many standing decisions); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. Rev. 1741, 1758 (1999)
(describing standing doctrine as “malleable” which permits judges to “further their ideological agendas” through them); Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits,
“Injuries,” and Article III, 91 Mich. L. Rev. 163, 167 (1992) (criticizing standing doctrine). For
a defense of the use of some of these doctrines, see Lea Brilmayer, The Jurisprudence of Article
III: Perspectives on the “Case or Controversy” Requirement, 93 Harv. L. Rev. 297 (1979).
91  For a description of the ways in which Supreme Court precedent has increased the
availability of summary judgment, see Jeffrey W. Stempel, A Distorted Mirror: The Supreme
Court’s Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49
Ohio St. L.J. 95 (1988).
92  See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589–95 (1993) (establishing standards for admissibility of expert testimony in federal courts).

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of scale that plaintiff–side attorneys often enjoy in many large class action
contexts. It has also enforced mandatory arbitration clauses in consumer
contracts, making it likely that disputes surrounding many consumer
transactions will no longer be resolved in the courts.93
But it has not just been the judiciary that has sought to limit the power
of courts to adjudicate many types of disputes. Congress has limited access
to courts in certain substantive areas of law, like securities cases,94 prisoner
litigation,95 and many immigration matters.96 It has also narrowed the
availability of class action remedies in certain contexts97and habeas relief
in many others.98 As in the securities and class action contexts, in some
instances Congress limited access to state courts, while preserving what
may have been perceived as the more “defense–friendly” and transaction–
costs–heavy federal courts for many litigation contexts.99
It is within this historical context that the decisions in Twombly and
Iqbal arise, and the following discussion goes into greater detail about these
precedents and their critics.
A.  Critiques of Twombly and Iqbal
There is a growing body of criticism of the Supreme Court’s new civil
pleading jurisprudence, from scholars and practitioners alike. Some argue
that the plausibility standard worked a change to the Federal Rules of
Civil Procedure through the courts, and not the legislature.100 Others argue
93 For a discussion of recent procedural opinions of the Supreme Court, see Judith
Resnik, Comment, Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal–Mart v.
Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78 (2011).
94  See Private Securities Litigation Reform Act of 1995, Pub. L. No. 104–67, 109 Stat.
737 (codified as amended in scattered sections of 15 U.S.C.) (imposing heightened pleading
requirements in certain securities cases); Securities Litigation Uniform Standards Act of 1998
§ 101, 15 U.S.C. § 77p (2006) (limiting state securities litigation).
95  42 U.S.C. § 1997e (2006).
96  See, e.g., Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104–208, Div. C, § 348, 110 Stat. 3009–546, 3009–639 (codified as
amended at 8 U.S.C. 1182(h) (2006 & Supp. 2010)).
97  See Class Action Fairness Act of 2005 §§ 4(a), 5, 28 U.S.C. §§ 1332(d), 1453 (2006)
(limiting access to state courts for certain types of class actions). For a description of some
further efforts to restrict access to courts, see David Marcus, The Past, Present, and Future of
Trans–Substantivity in Federal Civil Procedure, 59 DePaul L. Rev. 371, 404–09 (2010).
98  The Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104–132, §§ 101–102, 110 Stat. 1214, 1217 (codified in scattered sections of 26 U.S.C.).
99  For an argument that the Class Action Fairness Act of 2005 will drive up transactions costs for plaintiff–side attorneys, see Elizabeth J. Cabraser, Apportioning Due Process:
Preserving the Right to Affordable Justice, 87 Denv. U. L. Rev. 437, 448–49 (2010).
100  See Kevin M. Clermont & Stephen C. Yeazell,  Inventing Tests, Destabilizing Systems,
95 Iowa L. Rev. 821, 823 (2010); see also Robert G. Bone, Plausibility Pleading Revisited and
Revised: A Comment on Aschroft v. Iqbal, 85 Notre Dame L. Rev. 849, 852 (2010) (arguing that

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that the indeterminate nature of the plausibility standard gives district
courts little guidance on how to handle motions to dismiss.101 Some have
expressed concerns that such an indeterminate standard grants too much
discretion to judges who might harbor hostility to certain types of cases or
particular litigants and will use that discretion to reject certain claims.102
Others posit that the pleading bar has been raised too high, at too early
a phase in litigation, particularly where information about alleged illegal
conduct is not generally available to plaintiffs.103 Still others argue that the
the Court’s “thick” screening approach in Iqbal should only be adopted by Congress, not the
courts); Sybil Dunlop & Elizabeth Cowan Wright, Plausible Deniability: How the Supreme Court
Created a Heightened Pleading Standard Without Admitting They Did So, 33 Hamline L. Rev. 205,
208 (2010) (arguing that the Court in Twombly and Iqbal created a “heightened pleading standard” inconsistent with the Federal Rules of Civil Procedure).
101  As David Noll points out, the Court in Iqbal “leaves a number of questions unanswered.” David L. Noll, The Indeterminacy of Iqbal, 99 Geo. L.J. 117, 131 (2010). For example:
What parts of a legal case is the pleader responsible for pleading? How convincing
must the showing of “entitlement” to relief be to send a case to discovery? What
sort of information may a pleader (and the court) rely on? Until these questions are
presented in concrete cases, there is only so much a general statement of a general
standard can resolve. The judicial process is such that a single decision—even a
landmark decision—cannot begin to resolve all the problems of application that
arise under a single, generally applicable standard.

Id.; see also Clermont & Yeazell, supra note 100, at 823 (criticizing the plausibility standard as
“foggy”). One scholar, in analyzing cases decided in the decade prior to Twombly, suggests
that the “heft” of an initial pleading in a case bears no relationship to the ultimate outcome.
Alexander A. Reinert, The Costs of Heightened Pleading, 86 Ind. L.J. 119, 120 (2011). For an
attempt to reconcile the standard articulated in the holdings in Twombly and Iqbal with the
purposes of pleading rules and prior precedent, see Adam N. Steinman, The Pleading Problem,
62 Stan. L. Rev. 1293 (2010).
102  See, e.g., Access to Justice Denied: Ashcroft v. Iqbal: Hearing Before the Subcomm. on the
Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 61–62
(2009) [hereinafter Access to Justice Hearing] (statement of John Vail, Senior Litigation Counsel
and Vice President, Center for Constitutional Litigation), available at http://judiciary.house.
gov/hearings/printers/111th/111–36_53090.PDF (criticizing Iqbal for the discretion it confers
on judges); id. at 79, 84–89 (statement of Debo P. Adegbile, Director of Litigation, NAACP
Legal Defense and Educational Fund) (criticizing Iqbal as likely to have a disparate impact
on civil rights litigants); see also Open Access to Courts Act of 2009: Hearing on H.R. 4115 Before the
Subcomm. on Courts and Competition Policy of the H. Comm. on the Judiciary, 111th Cong. 25, 32–34
(2009) (statement of Eric Schnapper, Professor, University of Washington School of Law) (expressing concern that Twombly and Iqbal will result in judges dismissing otherwise meritorious
civil rights claims for technical pleading defects), available at http://judiciary.house.gov/hearings/printers/111th/111–124_54076.PDF; Ramzi Kassem, Iqbal and Race: Implausible Realities:
Iqbal’s Entrenchment of Majority Group Skepticism Towards Discrimination Claims, 114 Penn St. L.
Rev. 1443, 1444–46 (2010) (arguing subjective aspects of plausibility determination are likely
to adversely impact claims by members of non–dominant, minority communities).
103  See Richard A. Epstein, Bell Atlantic v. Twombly:  How Motions to Dismiss Become
(Disguised) Summary Judgments, 25 Wash. U. J.L. & Pol’y 61, 61–62, 67–68 (2007) (arguing that
the plausibility standard is appropriately deployed where information about a defendant’s
misconduct is publicly available, while defending the ultimate outcome in Twombly); Suja A.
Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly,
14 Lewis & Clark L. Rev. 15, 39 (2010). As Arthur Miller argues:

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new plausibility standard will chill the vindication of important rights and
will favor the powerful over the powerless.104
A number of legal scholars have conducted empirical studies to
determine the impact of the pleading standards of Twombly and Iqbal
in the relative short time frame since their issuance. One such study, in
a random selection of cases filed both before Twombly and after, found a
slight increase in rates of dismissal on pleading grounds, from forty–six
to forty–eight percent, from before Twombly to immediately thereafter,
then a greater increase, to fifty–six percent, in cases in which motions to
dismiss were ruled upon after Iqbal.105 In addition to identifying these
overall dismissal rates, the study went on to break down cases according to
case type, as identified by the federal courts’ Civil Cover Sheet, including
In many modern litigation contexts the critical information is in the possession of
the defendant and unavailable to the plaintiff. I can understand requiring a plaintiff to plead what he or she knows or should know, but it is rather futile to tell the
pleader to plead what is unknown. Discovery was designed to let each side have
access to that type of information so that the litigation playing field would be level
to promote more informed settlements and trials.

Arthur R. Miller, Are the Federal Courthouse Doors Closing? What’s Happened to the Federal Rules of
Civil Procedure?, 43 Tex. Tech L. Rev. 587, 596 (2011); see also Richard A. Epstein, Of Pleading
and Discovery: Reflections on Twombly and Iqbal with Special Reference to Antitrust, 2011 U. Ill.
L. Rev. 187, 200–01 (2011) (praising staged and limited discovery as a means of weeding out
weaker cases and an alternative to outright dismissal where defendants may possess information relevant to plaintiffs’ claims); Rakesh N. Kilaru, Comment,  The New Rule 12(b)(6):
Twombly, Iqbal, and the Paradox of Pleading, 62 Stan. L. Rev. 905, 926–29 (2010) (noting the
“paradox” that when information about illegal conduct is not generally available, under Iqbal,
the plaintiff cannot attempt to file a claim to get access to that information through discovery); Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre–Dismissal Discovery Can
Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65, 68
(2010) (arguing that pre–dismissal discovery can offer alternative to outright dismissal for
pleading deficiencies in complaints). As Elizabeth Schneider argues, the Court’s decisions in
Twombly and Iqbal lead to “absurd” results:
Twombly and Iqbal have effectively commanded district judges to assess pleadings
and the credibility of plaintiffs’ allegations as though they were summary judgment motions . . . . [As argued elsewhere,] summary judgment decisionmaking has
been problematic and controversial. For a district judge to be called on to make
a similar assessment on pleading, based on “judicial experience” and “common
sense” and before discovery, is absurd.

Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate
Impact on Civil Rights and Employment Discrimination Cases, 158 U. Pa. L. Rev. 517, 536 (2010).
104  E.g., Gary S. Gildin, Iqbal and Constitutional Torts: The Supreme Court’s Legislative
Agenda to Free Government from Accountability for Constitutional Deprivations, 114 Penn St. L.
Rev. 1333, 1335 (2010) (“Iqbal is but the latest instance in a long line of cases in which the
Supreme Court, acting sua sponte, legislates a doctrine freeing government and its officials
from accountability for proven violations of the Constitution.”); Miller, supra note 89, at 61–77
(arguing that procedural limitations, such as pleading requirements after Twombly and Iqbal,
have prioritized concerns about defendant litigation costs and docket control over vindication
of rights); A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis &
Clark L. Rev. 185, 185 (2010) (arguing that Iqbal will make it harder for “societal out–groups”
to challenge “dominant interests”).
105 Hatamyar, supra note 9, at 601–02.

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“contracts,” “torts,” and “civil rights.”106 When broken down by case type,
the author found some divergence in the success of motions to dismiss
under Twombly and Iqbal depending on the nature of the case. For example,
in “constitutional civil rights cases” the dismissal rate was higher across
the board: from fifty percent dismissal rate in the year preceding Twombly,
fifty–five percent in the time–span between Twombly and Iqbal, and sixty
percent after Iqbal.107
A more recent study, conducted for the federal Judicial Conference
Advisory Committee on Civil Rules, found somewhat different results.108
This study analyzed a sampling of decisions from several district courts
found in the federal courts filings database, as opposed to those maintained
in electronic databases. Comparing two time frames—a period of time
before Twombly and then another after Iqbal—the results showed a slight
rise in the number of motions to dismiss filed in all types of cases.109 While
this study found an increase in the general dismissal rate from sixty–six
percent to seventy–five percent, this study did not find a rise in dismissal
rates in most categories of cases where leave to re–plead was not granted.110
The one exception was in cases described as concerning “financial

106  Id. at 604.
107  Id. at 608.
108  See Cecil Report, supra note 9, at 13. A prior, preliminary study for the Committee
on Rules of Practice and Procedure of the Judicial Conference of the United States found the
following:
The findings show some increase in the rate of motions, and — for most case
categories — no more than slight increases in the rate of granting motions. Two
case categories that have drawn particular attention are “Civil Rights Employment
Cases” and “Civil Rights Other Cases.” The monthly average in employment
cases for nine months before the Twombly decision was 1,147 cases, 527 motions
to dismiss (46% percent of cases), 169 motions granted (15%), and 108 motions
denied (9%). For nine months after Iqbal, the monthly average was 1,185 cases,
533 motions to dismiss (45%), 185 motions granted (16%), and eighty motions denied (7%). The monthly average in other civil rights cases for nine months before
Twombly was 1,334 cases, 903 motions to dismiss (68% of cases), 264 motions granted (28%), and 158 motions denied (12%). For nine months after Iqbal, the averages
were 1,362 cases, 962 motions to dismiss (68%), 334 motions granted (25%), and
114 motions denied (8%). These figures show a substantial increase in the percent
of motions granted. But they cannot show the explanation—whether, for example,
the increase is largely in types of pro se cases that survived under notice pleading
only because judges felt helpless to dismiss, no matter how manifestly implausible
the claim might be.

Memorandum from Hon. Mark R. Kravitz, Chair, Advisory Comm. on Fed. Rules of Civil
Procedure, to Hon. Lee H. Rosenthal, Chair, Standing Comm. on Rules of Practice &
Procedure 2–3 (May 17, 2010) (discussing the Report of the Civil Rules Advisory Committee),
available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/CV05–2010.
pdf. That report indicated that a “closer examination of actual cases,” had also been performed. Id. at 3. The Cecil Report is the result of that closer examination. Cecil Report, supra
note 9, at 13.
109  The study excluded prisoner cases and pro se cases. Cecil Report, supra note 9, at
vii.
110  Id. at 13.

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instruments,” including mortgages.111 In such cases, there was a significant
rise in dismissal rates generally, as well as dismissal without leave to re–
plead, after Iqbal. In the pre–Twombly cases, the general dismissal rate
was forty–seven percent (without leave to re–plead); after Iqbal, a general
dismissal rate of ninety–two percent (without leave to re–plead).112
While the methodology for this study included sampling of cases from
select district courts, and did not rely on reported decisions in electronic
databases,113 like the other studies conducted before it, it looked simply at
success rates for all motions to dismiss, regardless of the basis for the motion,
including motions based on exhaustion of administrative remedies, statute
of limitations, and other grounds not related directly to the specificity of
the pleadings.114
The instant study sought to overcome these and other methodological
shortcomings. Furthermore, it attempted to narrow the focus of the study,
limiting it to employment and housing discrimination cases. The central
questions this article attempts to address are the following. First, has the
new pleading standard had an adverse impact on certain types of civil
rights cases: here, employment and housing discrimination cases? Second,
if the courts are using the precedents in Twombly and Iqbal to dismiss such
cases at a higher rate than before, what aspect of those opinions are courts
deploying to do so? And third, moving beyond dismissal rates, has the
number of cases dismissed on specificity grounds increased after either
Twombly or Iqbal? It is to these questions that I now turn.
B.  Results Overview
In a nut shell, the study revealed more of an Iqbal effect than a Twombly
effect. In sum, there were noticeable changes in the dismissal rates after
the issuance of Iqbal as opposed to the time period immediately following
Twombly. In the pre–Twombly group of cases, what I refer to as Group I,
111  Id. at 12. In defining “financial instrument cases” the study combined “nature–of–
suit codes indicating case categories for negotiable instruments, foreclosure, truth in lending,
consumer credit, and ‘other real property.’” Id.
112  Id. at 14 tbl.4.
113  A common criticism of using decisions contained exclusively in electronic databases
is that using such sources is likely to result in an increased number of opinions in which claims
were dismissed, because, it is believed, these tend to be overrepresented in such databases.
See id. at 2 n.5. Since this study looks at trends over time, using just electronic databases, any
biases of the data would exist throughout the entire time frame studied for this analysis. I
make no claim here that the dismissal rates revealed in the data used in the study are representative of all cases, just of cases contained in these databases.
114  For critiques of the Cecil Report, see Patricia Hatamyar Moore, An Updated Quantitative
Study of Iqbal’s Impact on 12(b)(6) Motions, 46 U. Rich. L. Rev. 603 (2012); Lonny Hoffman,
Twombly and Iqbal’s Measure: An Assessment of the Federal Judicial Center’s Study of Motions to
Dismiss 5–6 (Univ. Hous. L. Ctr., Working Paper No. 1,904,134, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1904134.

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sixty–one percent of all motions to dismiss were granted, at least in part,
and forty–six percent of cases were dismissed, at least partially “with
prejudice.”115 In what I call the Group II decisions (those decided during
the time period between the Court’s decision in Twombly and its decision
in Iqbal), the dismissal rate for those cases was fifty–six percent, but the
dismissal rate, at least partially “with prejudice,” was only forty percent.
Finally, in the so–called Group III cases, which were decided post–Iqbal,
the dismissal rate for all cases went up to seventy–two percent, with the
“with prejudice” rate going up to fifty percent. Graphic displays of these
and other results are set forth in the following section.
As more fully described below, further analysis of these outcomes—
for example, by looking at different dismissal rates for cases filed pro se
as opposed to cases in which the plaintiffs were represented by counsel,
by looking at dismissal rates for cases in which disparate impact theories
were raised and those in which they were not—shows that the pro se
litigants generally did not fare as well as litigants represented by counsel.
In addition, at least some types of disparate impact claims fared better than
the cases analyzed as a whole, namely, cases alleging reverse redlining in
the subprime mortgage market. Overall, however, there appears to be a
clear Iqbal effect, yet no apparent Twombly effect, at least with respect to
the universe of cases studied here.
Furthermore, this study included additional analysis to determine the
manner in which district courts may be using the plausibility standard,
and to what extent courts are relying on judges’ “experience and common
sense.” In reviewing these questions, it seems clear that courts are rarely
using the plausibility standard, if they are at all, in the manner in which the
Supreme Court did in both Twombly and Iqbal. In the cases studied, when
courts ruled on motions to dismiss, they did not attempt to identify an
arguably more plausible—and entirely legal—explanation for the conduct
alleged. Moreover, district court judges rarely, if ever, resort to their own
experience and common sense, at least not explicitly, when ruling on the
sufficiency of the pleadings.
Finally, this study looked at two additional issues: at what rate did
plaintiffs face motions to dismiss based on the specificity of the pleadings
and did the number of dismissals increase after Twombly and/or Iqbal. Here,
since three different time frames were utilized in developing the database
for this analysis, the study explored the following questions: what was the

115  Cases were categorized as dismissed “with prejudice” when the deciding court explicitly denied leave to re–plead; found that the matter was dismissed with prejudice; or, simply, if the opinion was silent on whether the plaintiff could re–plead any claims. According to
Federal Rule of Civil Procedure 41(b), a dismissal is considered “adjudication on the merits”
unless the deciding court explicitly states that the outcome is without prejudice. Categorizing
decisions in this way is consistent with the methodology used in the Cecil Report, supra note
9, at 5.

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average number of decisions issued per month in which plaintiffs faced a
motion to dismiss challenging the specificity of the pleadings and how many
decisions were issued in which the pleadings were dismissed on specificity
grounds? These final pieces of analysis revealed disturbing trends. Among
the universe of cases studied here, plaintiffs faced a considerably higher
number of motions to dismiss in which their pleadings were challenged as
lacking specificity. Indeed, decisions on such motions were generated at
a rate greater than five times the rate pre–Twombly. Moreover, apart from
the mere dismissal rate, the number of cases in which complaints were
dismissed, either in whole or in part, rose dramatically after Iqbal.
These and other findings are more fully developed and explained in the
following section.
C.  Dismissal Rates Analysis
1. Methodology.—As stated previously, this study attempted to identify
employment and housing discrimination cases in which the defendants
tested the specificity of the pleadings through either a motion to dismiss
for failure to state a claim or for judgment on the pleadings.116 To identify
any potential impact of the Twombly or Iqbal decisions on the manner in
which lower courts treated such motions, this study created a database
of trial court decisions from the federal courts during the time period
immediately preceding the Court’s decision in Twombly and the period
after. To gauge any greater impact in these classes of civil rights cases after
Iqbal, the post–Twombly decisions were divided into two classes of cases:
those cases decided after Twombly but before Iqbal, and those cases decided
after Iqbal. The study identified three different groups of cases, based on
the three time frames laid out above, namely the 41–month period prior to
the Court’s decision in Twombly; the 24–month period between the Court’s
decisions in Twombly and Iqbal; and the 19–month period from the decision
in Iqbal and when this study was started (mid–May 2009 through mid–
December 2010).117
The first group of cases was identified using a range of searches on
the Lexis database. Initially, the search sought to identify decisions in
employment and housing discrimination cases in which the deciding court
cited the Court’s precedent in Conley v. Gibson.118 In order to ensure that
116  Under federal practice, the same standard applies to 12(b)(6) motions to dismiss as
12(c) motions for judgment on the pleadings. Conry v. Daugherty, No. 10–4599, 2011 U.S.
Dist. LEXIS 66658, at *9 (E.D. La. June 22, 2011). Courts are applying the plausibility test to
review pleadings filed under either of these sub–parts of Rule 12. See, e.g., id.
117 While there may have been a value to analyzing an identical time frame before
Twombly and after, since the analysis was commenced in mid–December 2010, it seemed of
greater value to incorporate all decisions then available than to hew to some rigid time frame.
118  Using Lexis’s combined federal cases database, the search identified decisions in this

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the search terms utilized did not miss any relevant cases, and to recognize
the possibility that courts, pre–Twombly, might not have always cited Conley
in assessing the specificity of the pleadings on a motion to dismiss, the
study included two additional searches of the 41–month period before
the Twombly decision. The first sought decisions on motions to dismiss in
employment and housing discrimination cases that referenced Conley’s “no
set of facts” language, but did not cite the Conley precedent itself.119 The
reasoning behind conducting such a search was that the Supreme Court,
and lower, appellate courts, had incorporated the “no set of facts” language
into subsequent precedents, and district court judges sometimes quoted
this language but cited another decision or decisions that had adopted
that language. The final search conducted of the pre–Twombly time frame
attempted to identify decisions on motions to dismiss in employment or
housing cases that cited neither Conley nor its “no set of facts” language at
all.120
The second group of cases was compiled through searches121 that
attempted to identify decisions with the same characteristics as those
sought in the first search, but used a different date filter: from May 22, 2007
to May 18, 2009 (the first date being the date of the Court’s decision in
Twombly, and the second, the date of the Court’s decision in Iqbal). It also
added the search term “Twombly” in the search.
Finally, the third group of cases was identified through searches using
similar terms,122 but with a date filter of May 19, 2009 through December
19, 2010.
database issued between January 1, 2004 and May 21, 2007 (the date of issuance of the Court’s
decision in Twombly). The initial search used the following search terms: “conley /4 gibson &
disparate /4 impact or treatment & employment or housing.”
119  The search of Lexis’s federal cases combined database was the following, using the
pre–Twombly date restrictions: “disparate /4 impact or treatment and employment or housing
and “no” set of facts and not conley.”
120  That search, once again conducted using Lexis’s federal cases combined database,
was the following: “motion /4 dismiss /200 disparate /4 impact or treatment & employment
or housing and not conley.” This search was further refined, using the Lexis “focus” feature
to exclude those opinions in which the language “no set of facts” appeared. Again, the pre–
Twombly date restrictions described above were imposed. The “within 200” modifier was deployed in this and several other searches to winnow down the total number of cases generated
using these search terms. The large sample size ultimately identified—well over 1800 cases
across all three time periods—likely tempered any distortions in the data that may have been
created by using this type of modifier. Moreover, differences across time periods that might
have been generated by the use of such a modifier were similarly balanced out by the use of
this modifier across the different time frames with certain supplemental searches.
121  Again, using Lexis’s federal cases combined database, the study ran the following
search: “twombly & disparate /4 impact or treatment & employment or housing” within the
date range described above.
122  For this third group, the study utilized the following search “twombly or iqbal & disparate /4 impact or treatment & employment or housing” using, once again, the Lexis federal
cases combined database.

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Similarly, additional searches were conducted to ensure that the study
did not miss cases in the post–Twombly period, where the specificity of the
pleadings were challenged, but courts did not reference either the Twombly
or Iqbal opinions in reaching their decisions on such motions.123
Knowing that the searches conducted would likely yield more decisions
than those germane to the study, this author then reviewed the results
from these searches to filter out cases beyond the scope of the study. A
description of the filtering techniques is included below. Using these
techniques, the study winnowed down the cases initially identified using
the various searches described above, from the 1,739 originally selected, to
a total of 625 cases in which the defendants, through motions to dismiss for
failure to state a claim and/or for judgment on the pleadings, challenged the
specificity of the allegations of the complaints in employment and housing
discrimination cases. After applying the exclusions described below, the
search yielded 187 relevant decisions in the first time frame; 160, in the
second; and 278, in the third.
The study deployed a range of techniques to narrow the searches and
generate this smaller collection of cases for the data review. Such techniques
included excluding the following:
•	 Decisions from appellate courts—The narrower data set includes
only decisions of district judges, and, in some instances, magistrate
judges.124 The set includes no appellate decisions. Furthermore, since
this study reviewed the conduct of district court judges and magistrates,
whether a particular opinion was reviewed on appeal and whether the
opinion was reversed or affirmed was irrelevant to the study.
•	 Decisions on motions for summary judgment—Where defendants
filed motions to dismiss or, in the alternative, motions for summary
judgment, the analysis took into account only the outcome on the Rule
12 component of those decisions.125
123  The study included the following additional search of the post–Twombly/pre–Iqbal
time–period: “motion /4 dismiss /200 disparate /4 impact or treatment & employment or housing and not twombly.” The study included the following additional search of the post–Iqbal
time–period: “motion /4 dismiss /200 disparate /4 impact or treatment & employment or housing and not twombly or iqbal.”
124  In order to prevent double–counting of a single case, if a magistrate’s decision was
adopted by a district court judge, and that judge cited to either Conley, Twombly, or Iqbal, only
one of those two opinions were included in the database. Typically, such district court judge
opinions were short on details and rarely referenced any of these cases in such decisions. In
such cases, the database included only the magistrate’s opinion.
125  In contrast, when a moving party sought relief through a motion to dismiss or, alternatively, for summary judgment – if the deciding court considered the motion only as one for
summary judgment – that opinion was not included in the data set. Similarly, if a trial judge
converted a motion to dismiss into a motion for summary judgment, that decision, too, was

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•	 Decisions on motions to dismiss that were not directed to the
specificity of the allegations in the pleadings—Previous studies of the
impact of Twombly or Iqbal included outcomes in all motions to dismiss.
Such an approach would, necessarily, include the outcomes in cases
having nothing to do with the change in pleading standards brought
about by Twombly and Iqbal. Thus, those studies would include the
outcomes in cases that likely would have been the same after Twombly
as before, since the Twombly/Iqbal precedents would bear no relation
to the issues before the district courts in such cases. In order to focus
solely on the impact of Twombly and Iqbal, this study excluded any
decisions in which a defendant challenged whether the plaintiff had
properly exhausted his or her administrative remedies prior to filing suit
or filed the suit in an untimely fashion. Similarly, where a defendant
sought dismissal based on res judicata, collateral estoppel, or complete
or partial immunity, and the specificity of the pleadings were not
otherwise challenged, such cases were also excluded from the database.
If any aspect of a motion raised any of these issues, yet the specificity
of the pleadings were also challenged, the case was included in the
database on the outcome of that portion of the motion that challenged
the specificity of the pleadings only. Similarly, if a defendant challenged
the specificity of the pleadings with respect to any question related to
exhaustion of remedies or the timeliness of the complaint, even though
these are both affirmative defenses, decisions on such motions were
included in the database.
•	 Cases the searches identified that were not related to either
employment or housing discrimination—In some instances, a
case involving special education rights under the Individuals with
Disabilities Education Improvement Act of 2004 (IDEA)126 or some
other claim under a separate civil rights statute might reference the
standards used in employment or housing discrimination cases. In such
instances, the search methods utilized generated “false positives.” The
study excluded such cases from a deeper review. As mentioned earlier,
the study excluded special education cases, discrimination in education
generally, claims under Title VI of the Civil Rights Act of 1964,127 cases
under the Employee Retirement and Income Security Act (ERISA),128
and detainee/prisoner litigation challenging conditions of confinement.

excluded from the study.
126  Individuals with Disabilities Education Improvement Act of 2004 § 615(h)(i)(2)(A),
20 U.S.C. § 1415(h)(i)(2)(A) (2006).
127  Civil Rights Act of 1964 § 601, 42 U.S.C. § 2000d (2006). 
128  Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001 (2006).

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At the same time, a wide range of employment and housing
discrimination claims were included in the collection of cases analyzed
fully for this study including: Title VII,129 the Rehabilitation Act,130 the
Americans with Disabilities Act (ADA),131 the Age Discrimination in
Employment Act (ADEA),132 the Equal Pay Act,133 the Family Medical
Leave Act,134 Equal Protection claims implicating employment or
housing discrimination135 and claims under the Fair Housing Act
(FHA).136 Additionally, retaliation claims, where viable under any of
these other laws or causes of action, were also considered as appropriate
for deeper study.137
The study includes this constellation of laws in order to capture
the full range of employment and housing discrimination cases, and
because many utilize similar approaches to the types of allegations
required of plaintiffs when attempting to establish their right to relief
as well as, ultimately, their prima facie case under such laws: namely,
the now–familiar burden–shifting methodology utilized in so many
discrimination contexts.138 At the same time, the study excluded two
129  Civil Rights Act of 1964 § 703(a)(1)–(2), 42 U.S.C. § 2000e–2(a)(1)–(2) (2006). 
130  Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794 (2006).
131  Americans with Disabilities Act of 1990 § 102(a), 42 U.S.C. § 12112(a) (2006). 
132  Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 (2006). 
133  Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2006).
134  Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 (2006). 
135 For a discussion of constitutional employment law claims, see David W. Lee,
Handbook of Section 1983 Litigation § 2.15[A][1], at 323–28 (2011).
136 Civil Rights Act of 1968 § 801–819 (Fair Housing Act), 42 U.S.C. §§ 3601–3619
(2006).
137  For a discussion of the elements necessary to establish a prima facie case of retaliation, see Anna Ku, Note, “You’re Fired!” Determining Whether a Wrongly Terminated Employee
Who Has Been Reinstated with Back Pay Has an Actionable Title VII Retaliation Claim, 64 Wash. &
Lee L. Rev. 1663, 1667–68 (2007).
138  The burden–shifting approach to Title VII cases in the context of a claim in which
discriminatory treatment under Title VII is alleged requires that the plaintiff, in order to make
out a prima facie case of discrimination, must show the following:
(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a
job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained
open and the employer continued to seek applicants from persons of complainant’s qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). For an overview of the burden–
shifting framework in employment and other civil rights actions, see generally 1 Charles R.
Richey, Manual on Employment Discrimination Law and Civil Rights Actions in Federal
Court (2d ed. 2011). By contrast, in a disparate impact case, in order to establish a prima facie
case of discrimination, the plaintiff must show the following: “(1) the occurrence of certain
outwardly neutral . . . practices, and (2) a significantly adverse or disproportionate impact on
persons of a particular [type] produced by the [defendant’s] facially neutral acts or practices.”
Pfaff v. U.S. Dep’t of Hous. & Urban Dev., 88 F.3d 739, 745 (9th Cir. 1996)  (alterations in

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types of claims because the law and jurisprudence is deeply unsettled
in these areas. Such claims included those for insurance redlining under
the Fair Housing Act and claims challenging allegedly discriminatory
policies in the aftermath of Hurricane Katrina in the Mississippi Gulf
Region. The study excluded these types of cases because of the fear
that including them, when the outcomes in so many of these cases are
unfavorable to the plaintiffs because of the unsettled nature of the
substantive law and the hostility many courts have exhibited to such
claims as a result, would have distorted the results.
•	 Cases involving no allegations of invidious discrimination—This
rule excluded cases in which Equal Protection violations were alleged
in situations involving public employment, public housing or other
government conduct, yet the plaintiff failed to articulate a basis for
his or her claim that implicated a suspect classification. Similarly, cases
were excluded from further study if a substantive law did not forbid the
conduct complained of, even accepting the allegations as true and when
such allegations were sufficiently specific. For example, the study did
not include a review of cases where a challenged complaint contained
allegations of discrimination in employment based on sexual preference
where such claims are not covered under federal anti–discrimination
laws. At the same time, if a particular motion challenged the specificity
of the pleadings on any of these grounds, it was included in the
database. For example, if a defendant challenged a complaint on the
grounds that a plaintiff failed to state with specificity whether he or she
was a member of a protected class, the outcome in that proceeding was
included in the database. In most instances, however, plaintiffs were
pursuing “class of one” claims, admitting that they were not members
of a suspect class.
•	 Those decisions where the basis for a defendant’s motion was that
there was no individual liability under a particular civil rights statute—
As in the previous few bases for exclusion, if individual liability was
just a part of a motion in which the sufficiency of the allegations of
the complaint was also challenged, the study took into account only
that aspect of the decision not related to individual liability. Whether
a particular individual defendant might be liable under the relevant
substantive law is irrelevant to the specificity of the pleadings, and
motions where a defendant objected on this ground were excluded
original) (quoting Palmer v. United States, 794 F.2d 534, 538 (9th Cir. 1986)). Of course, the
burden–shifting framework should not be utilized by the trial court to test the strength of the
specificity of a particular plaintiff’s allegations at the motion to dismiss phase. Swierkewicz v.
Sorema, 534 U.S. 506, 510 (2002)(holding burden–shifting analysis inappropriate when assessing the strength of the allegations of a complaint challenged by a motion to dismiss).

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from further study unless other grounds relevant to the study were also
raised, in which case the outcome of the motion on those grounds alone
was made a part of the study.
In addition to these general grounds for excluding cases, there were
additional grounds in individual cases for excluding such cases from the
database for this study. A full catalog of the reasons for excluding cases
originally flagged for analysis through the searches described above is
included in the on–line appendices available for external review.139
2.  Results.—This analysis yielded results that reflected, in most instances,
that courts were more likely to dismiss cases, and dismiss them with
prejudice, at least in part, after Iqbal, than in the time frame immediately
preceding the decision in Twombly, and in the period between Twombly and
Iqbal.140
For all cases, including those in which the plaintiff was proceeding pro se
and those in which he or she had counsel, the overall dismissal rates in such
cases were as follows: Group I, sixty–one percent; Group II, fifty–seven
percent; and Group III, seventy–two percent. The change in outcomes
from Group I to Group III represented an eighteen percent increase in
dismissal rates; surprisingly, the change from Group II to Group III was
even more dramatic: a twenty–six percent increase.

139  The databases used in this study can be found online at: www.albanylaw.edu/sub.
php?navigation_id=157&user_275&view=publications.
140  Consistent with the ways in which other studies have categorized motion outcomes,
this study classified decisions in which motions were granted, either in whole or in part, as
“dismissal granted”; similarly, cases in which any aspect of the motion was granted with prejudice, or the opinion was silent on the matter of whether the motion was granted with prejudice, such decisions were classified for the purposes of this study as “with prejudice” dismissals. See supra note 115 and accompanying text.

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TABLE 1: Overall Dismissal Rates of Cases in Database141

Turning to cases in which dismissal was granted with prejudice, at least
in part, the dismissal rates for cases in which at least some claims were
dismissed with prejudice were as follows: Group I, forty–six percent; Group
II, forty–one percent; and Group III, forty–eight percent.

141  The numerical totals for this chart, and all others, are set forth in Appendix A, infra.
Furthermore, measures of statistical significance are set forth in Appendix C, infra.

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TABLE 2: “With Prejudice” Dismissal Rates

Admittedly, although the overall dismissal rates certainly increased
considerably after Iqbal, the “dismissal with prejudice” rate increases only
nine percent after that decision as compared to the pre–Twombly period.
Again, the increase from Group II to Group III was more dramatic: a
twenty–five percent increase.
The outcomes in cases in which the plaintiffs were represented by
counsel revealed similar trends. In those cases, the overall dismissal rates
were as follows: Group I, fifty–eight percent; Group II, forty–seven percent;
and Group III, sixty–eight percent. Turning to cases in which at least partial
dismissal with prejudice was granted, for non–pro se cases, the results were
similar: Group I, forty–three percent; Group II, thirty–four percent; and
Group III, forty–three percent. These outcomes are displayed graphically
below.
	

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TABLE 3: Dismissal Rates for Cases
in which Plaintiff Represented by Counsel

Turning to cases in which plaintiffs were proceeding pro se yielded
somewhat different results, at least with respect to the period between
Twombly and Iqbal. The overall dismissal rates for the pro se cases were as
follows: Group I, seventy–four percent; Group II, eighty–nine percent; and
Group III, eighty–four percent. The rates of dismissal in which at least
some of the claims were dismissed with prejudice were as follows: Group I,
fifty–nine percent; Group II, sixty–three percent; and Group III, fifty–nine
percent. These figures are displayed graphically below.

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TABLE 4: Dismissal Rates for Cases in which Plaintiff was Pro Se

The data on pro se cases shows that Twombly and Iqbal did seem to
have an impact on the overall dismissal rates, but that dismissal rates with
prejudice in such cases remained roughly constant. Pro se cases made up
almost one quarter of the cases analyzed (153 of 625 cases, or twenty–four
percent).
Further analysis of the data yielded interesting results when comparing
the outcome in cases in which parties alleged claims of disparate impact as
opposed to disparate treatment or other types of related claims, like claims
involving retaliation.142 Further, cases were labeled “mixed” when they
involved allegations of both disparate impact and disparate treatment.
The results show several different trends. First, cases alleging disparate
impact theories fared much better than disparate treatment claims both
before Twombly and immediately thereafter. After Iqbal, however, the
different appears to dissipate considerably, though they were still surviving
142  For the purposes of this study, the claims were separated into two broad types of
cases, disparate impact and all others, a category of cases I have labeled “disparate treatment”
because it made up the overwhelming majority of the claims. At the same time, in just a small
handful of cases did plaintiffs set forth so–called direct evidence of discrimination, which
would take a case out of the burden–shifting framework used in disparate impact and disparate treatment cases generally. This small number of cases was excluded from this study.

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dismissal at a higher rate than disparate treatment cases generally. With
mixed cases, at least some of the claims raised by plaintiffs were dismissed
at a higher rate than average, and this was across the board during all time
frames. At the same time, one does see a reduction in overall dismissal rates
post–Twombly in these cases, with a considerable increase, again, after Iqbal.
These results are displayed graphically below.

TABLE 5: Overall Results in Disparate Treatment,
Disparate Impact and Mixed Cases

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TABLE 6: Dismissal with Prejudice Rates in Disparate Treatment,
Disparate Impact and Mixed Cases

An even deeper analysis of the substantive cases included in the study
yields an interesting fact. One particular kind of disparate impact case fared
much better than other employment and housing discrimination cases in
the window of time between the Twombly and Iqbal decisions. In fact, it is
the outcomes in these cases that actually help to explain much of the dip in
dismissal rates that occurred after Twombly but before Iqbal.
This dip is mostly attributable to cases alleging discrimination in the
mortgage market in the lead up to the Financial Crisis of 2008, so–called
“reverse redlining” cases.143 Indeed, of the thirteen such cases in which
143  The term “redlining” refers to bank practices of discriminating against certain communities—often communities of color—by not offering bank services there. The term comes
from the practice of drawing red lines around communities where a bank would not lend.
See Black’s Law Dictionary 1391 (9th ed. 2009) (defining redlining); see also Rashmi Dyal–
Chand, Exporting the Ownership Society: A Case Study on the Economic Impact of Property Rights,
39 Rutgers L.J. 59, 81–82 n.116 (2007) (referring to Senator William Proxmire’s description
of redlining). Reverse redlining refers to the opposite phenomenon: financial institutions targeting certain communities for services on unfair terms. See Raymond H. Brescia, Subprime
Communities: Reverse Redlining, the Fair Housing Act and Emerging Issues in Litigation Regarding
the Subprime Mortgage Crisis, 2 Alb. Gov’t. L. Rev. 164, 179–80 (2009) (defining reverse redlining). For statistical data supporting claims that subprime lending was more prevalent with

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decisions were issued between May of 2007 and May of 2009, only two were
dismissed and only one with any claims dismissed with prejudice.144 When
these cases are removed entirely from the Group II database, the decrease
in dismissal rates in the Group II cases almost completely disappears, as
the following graph shows.

borrowers of color during the heyday of the housing bubble in the mid–2000s, even controlling for economic factors, see Robert B. Avery et al., Higher–Priced Home Lending and the 2005
HMDA Data, Fed. Res. Bull., Oct. 2006, at A125, A159–60 tbl.13 (showing higher rate of
subprime loans going to African–Americans and Latinos, compared to Whites, even controlling for income discrepancies), available at http://www.federalreserve.gov/pubs/bulletin/2006/
hmda/bull06hmda.pdf; Robert B. Avery et al., The 2006 HMDA Data, Fed. Res. Bull., Dec.
2007, at A73, A95–96 tbl.11 (2007) (further evidence of higher subprime loans rates based
on race and ethnicity), available at http://www.federalreserve.gov/pubs/bulletin/2007/pdf/hmda06final.pdf. For other studies confirming that borrowers of color received subprime loans
at a higher rate than White borrowers, again, controlling for creditworthiness and other factors, see for example Paul S. Calem et al., The Neighborhood Distribution of Subprime Mortgage
Lending, 29 J. Real Est. Fin. & Econ. 393 (2004); Paul S. Calem, et al., Neighborhood Patterns
of Subprime Lending: Evidence from Disparate Cities, 15 Housing Pol’y Debate 603 (2004). For
an analysis of racial discrepancies in mortgage pricing even within the subprime market,
see Debbie Gruentstein Bocian, et al., Ctr. for Responsible Lending, Unfair Lending:
The Effect of Race and Ethnicity on the Price of Subprime Mortgages (2006), available http://www.responsiblelending.org/mortgage–lending/research–analysis/rr011–Unfair_
Lending–0506.pdf. See, e.g., U.S. Dep’t of Hous. & Urban Dev. & U.S. Dep’t of Treasury,
Curbing Predatory Home Mortgage Lending 17, 72 (2000), available at www.huduser.org/
publications/pdf/treasrpt.pdf [hereinafter HUD–Treasury Report] (noting reasons predatory
lenders flourish in communities of color); Kathleen C. Engel & Patricia A. McCoy, The CRA
Implications of Predatory Lending, 29 Fordham Urb. L.J. 1571, 1583–84 (2002) (arguing that
predatory lenders flourish in markets underserved by traditional lenders); see also Michael S.
Barr, Credit Where It Counts: The Community Reinvestment Act and Its Critics, 80 N.Y.U. L. Rev. 513,
534–40 (2005) (providing overview of economic reasons for failure of the mortgage market to
serve certain communities).
144  These actions typically raise claims under the Fair Housing Act (FHA), and/or the
Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 (2006). The FHA makes it unlawful
“to discriminate against any person in making available [any real estate related transaction], or
in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap,
familial status, or national origin.” 42 U.S.C. § 3605(a) (2006), and “[t]o discriminate against
any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith, because of race, color, religion, sex,
familial status, or national origin.” 42 U.S.C. § 3604(b) (2006). The ECOA forbids discrimination based on “race, color, religion, national origin, sex or marital status, or age (provided the
applicant has the capacity to contract),” because any part of an applicant’s income “derives
from any public assistance program; or because the applicant has in good faith exercised any
right under this chapter.” 15 U.S.C. § 1691(a)(1)–(3) (2006).

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TABLE 7: Table 1 + Table 2 with Reverse Redlining Removed
from Group II
100%
90%
80%
70%
60%
50%
40%
30%

60%
61%

57%
46%

72%
44%
41%

48%

20%
10%
0%

Group I: Group I: Group II: Group II: Group III: Group III:
Overall
With
Overall
With
Overall
With
Prejudice
Prejudice
Prejudice
Without Reverse Redlining

Rulings in a series of cases challenging reverse redlining practices as
violations of the Fair Housing Act (FHA), have denied motions to dismiss
in these cases, permitting a number of these cases to proceed to the
discovery phase.145
145  See, e.g., Ramirez v. Greenpoint Mortg. Funding, Inc., 633 F. Supp. 2d 922, 924 (N.D.
Cal. 2008); Taylor v. Accredited Home Lenders, Inc., 580 F. Supp. 2d 1062, 1067 (S.D. Cal.
2008); Miller v. Countrywide Bank, N.A., 571 F. Supp. 2d 251, 253 (D. Mass. 2008). For a
more comprehensive list of cases alleging the extension of credit on discriminatory terms
in the subprime mortgage market, see Alys Cohen, Nat’l Consumer Law Ctr., Credit
Discrimination 169 n.17 (5th ed. 2009). One case not included in this analysis is an action
commenced by the Mayor and City Council of Baltimore against Wells Fargo alleging a pattern of discriminatory lending within city limits. Mayor & City Council of Balt. v. Wells Fargo
Bank, N.A., No. JFM–08–62, 2011 U.S. Dist. LEXIS 44013, at *2 (D. Md. April 22, 2011). That
case has a tortured procedural history. The first district court judge to whom the matter was
assigned denied the defendants’ initial motion to dismiss. And then, after the case was re–assigned, a second judge,granted a renewed motion to dismiss, citing Twombly. On the second
motin, the new judge found that the plaintiffs had not established a plausible argument for
why they had standing to sue. Id. at *3. The complaint was dismissed several times without
prejudice for lack of standing. Mayor & City Council of Balt. v. Wells Fargo Bank, N.A., 677
F. Supp. 2d 847, 852 (D. Md. 2010). Most recently, an amended complaint survived the defendants’ latest motion to dismiss and the case is now proceeding to the discovery phase.
Mayor of Balt., 2011 U.S. Dist. LEXIS 44013, at *18. Since the motion to dismiss was based on
standing grounds alone, and did not attack the complaint for its sufficiency with respect to the
underlying claims, it was excluded from this analysis. See also City of Memphis v. Wells Fargo
Bank, N.A., No. 09–2857–STA, 2011 U.S. Dist. LEXIS 48522, at *36 (W.D. Tenn. May 4, 2011)

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The timing of the decisions in Twombly and Iqbal may help to explain
this anomaly; the period between these decisions coincided with a rise in
this type of case in the mid–2000s: i.e., the lead up to, and ultimate wake
of, the Financial Crisis of 2008. The plaintiffs in these cases may have been
so successful in defeating motions to dismiss for one or more of several
reasons. First, they may have benefited from the fact that at least some
district court judges were reticent to extend the holding in Twombly beyond
the antitrust context. Second, perhaps in line with the holding in Twombly,
judges applied their judicial common sense, given the context, to accept
the plausibility of the plaintiffs’ allegations.146 Or, third, simply put, the
complaints in these cases were strong enough to overcome the defendants’
motions to dismiss because they contained sufficient allegations to satisfy
Rule 8 of the Federal Rules of Civil Procedure.
While these pre–Iqbal decisions indicate a willingness of judges to
entertain these claims, even in the face of challenges to the sufficiency of
the pleadings, post–Iqbal, at least during the period studied, the outcomes
in these decisions do not reflect the same acceptance of the claims. Caution
is appropriate here, as with the Group II cases as well, given that there
were only seven reported decisions in reverse redlining cases during the
post–Iqbal time frame analyzed. In those decisions, five were dismissed
(seventy–one percent), three (forty–three percent) with at least some of
the claims dismissed with prejudice. These numbers are consistent with
Group III’s general trends.
D.  The Lasting Value of the “Plausibility” Standard from Twombly and Iqbal
The next review of the decisional law following Twombly and Iqbal
tested the manner in which courts deployed the so–called “plausibility
standard” utilized by the Supreme Court in these two cases. This review
yielded somewhat surprising results. The review consisted of assessing
those decisions in the database of cases decided after the Court’s decision
in Iqbal147 in which the specificity of the pleadings were challenged by
defendants to determine to what extent courts did or did not use the
plausibility standard in that assessment. This review was conducted in the
following manner.

(denying motion to dismiss on standing grounds).
146  Given the findings below regarding the extent to which judges are applying their
“common sense” given the context, it is doubtful that this explanation carries much weight.
See infra Part II.F.
147  To the extent some courts may have been reluctant to apply Twombly’s plausibility
standard to cases outside the context of antitrust actions, Iqbal’s application of the standard to
a broader class of cases appears to have signaled to trial courts that the standard is applicable in
all civil cases. Accordingly, the final piece of this review of Twombly and Iqbal’s impact focuses
only on post–Iqbal decisions.

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1.  Methodology.—This review looked at the largest group of cases in the
database in which motions to dismiss were granted in their entirety: cases
in Group III in which non–disparate impact claims were raised exclusively.
The assumption was that with these cases, given that the complaints
in them were dismissed in full, one is likely to see courts utilizing the
plausibility standard with great force. These opinions numbered ninety–
five in total, and the analysis invoked the following methods for assessing
these outcomes.
First, the analysis identified those decisions in the database in which the
plausibility standard was invoked in a substantive way by using either or
both of the cases and the plausibility standard they introduce in a manner
that goes beyond a mere recitation of the motion to dismiss standard under
Rule 8. Then, second, where the term “plausibility” or “plausible” was
utilized by a deciding court in reaching a decision on the substance of the
claim or claims in question in a particular case, the analysis categorized the
manner in which the standard was applied.
In this analysis, cases were classified as follows. First, the study analyzed
whether the deciding court used the “more plausible” standard articulated
by the Court in Twombly and Iqbal. Second, the review determined
whether courts invoked these precedents to find that so–called conclusory
allegations were not entitled to the presumption of truth typically afforded
the allegations in complaints challenged by a motion to dismiss. Third, the
review asked whether courts were assessing the allegations in light of the
“context” of the claim, as urged by the Court. Finally, the review classified
those cases in which the deciding court, while explicitly invoking the
term plausibility, did little more than assess whether the complaint in a
particular case failed or succeeded in setting forth the basic elements of an
underlying claim or claims, as opposed to testing any plausibility of those
claims.
2.  Results.—In the end, only rarely did the application of the plausibility
standard by the deciding court resemble the way the Supreme Court
applied it in Twombly and/or Iqbal. First and foremost, in over half of
the cases reviewed, deciding courts failed to even apply the plausibility
standard in any way whatsoever. Rather, if the Twombly/Iqbal precedents
were cited, they were often invoked simply in boilerplate language
articulating the new standard for deciding a motion to dismiss. Despite
citing this language initially, roughly half of the courts went on to disregard
it altogether, proceeding to rule on the motion to dismiss without applying
any plausibility standard to the underlying claims.
Moreover, even where courts may have called upon the plausibility
standard in some substantive fashion, district courts rarely invoked the
plausibility standard in a way that seemed central to the Court’s holdings
in Twombly and Iqbal. As described above, the Court in those two cases

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compared the plaintiffs’ allegations in those cases as against what were
considered “more plausible” explanations for the defendants’ conduct in
each case; these alternative explanations, in the eyes of the Justices, were
entirely lawful (I call this the “More Plausible Test”). Unlike the Supreme
Court, in the decisions reviewed in this study, district courts rarely applied
the plausibility standard in this way. In other words, they simply did not
assess whether the plaintiffs’ claims were more or less plausible than
entirely lawful explanations for the defendants’ conduct. In fact, of the
ninety–five cases, district courts only applied any version of the More
Plausible Test in four of those cases.
Instead, when courts did invoke the term plausibility when testing
the specificity of the complaint, what they appear to be doing, far more
often than not, is finding that the allegations lack sufficient specificity to
establish that the plaintiff can make out the elements of his or her particular
claim for relief, without any regard for whether those factual contentions
were plausible or not. In other words, though attempting to invoke the
plausibility standard, if at all, courts, most often, simply applied a relatively
straightforward, and traditional, Rule 8(a) analysis: i.e., they asked whether
the plaintiff set forth the basic elements of his or her claims to put the
defendant on notice of the nature of those claims.
In other cases in which the plausibility standard was actually invoked in
more than mere boilerplate language, courts found that the plaintiffs made
no more than conclusory allegations in support of their claim, and such
allegations, under Twombly and Iqbal, were not entitled to deference when
ruling on the defendants’ motion to dismiss. But such holdings have little
to do with whether the underlying claims were plausible or not.
To some extent then, perhaps the most wide–ranging impact and most
important legacy of Twombly and Iqbal is that courts have focused in on the
prominence the Court gave in those opinions to the rejection of conclusory
allegations, even if under the mantle of conducting a plausibility analysis.148
The following table shows the frequency and quality of the manner in
which district courts invoked the Twombly/Iqbal plausibility standard. Since
several courts applied different aspects of the Twombly/Iqbal opinions in a
single opinion, the combined percentages exceed one hundred percent.

148  This rejection of so–called conclusory allegations, of course, raises the specter that
the Court is returning pleading standards to the Field Code era, where litigants could only
cite ultimate facts, and not conclusions or mere evidence. See supra text accompanying notes
20–25.

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TABLE 8: Analysis of Application of Plausibility Standard

These results show that, first, in over half of the opinions in this subset
of cases the plausibility standard was not even invoked. Second, they
also showed that in only a small handful of cases did the court use the
More Plausible Test, as opposed to simply rejecting allegations for their
lack of specificity, or, in a smaller number of cases, because they were
conclusory. As a result of these findings, it would appear that one of the
more confounding aspects of the Twombly and Iqbal decisions is not, for the
most part, being followed by the district courts. In other words, few lower
court judges appeared to follow the Supreme Court’s use of the plausibility
standard to weigh the relative likelihood that conduct complained of was
illegal or legal.
E.  Rate of Motions
1.  Methodology.—For this analysis, the study reviewed two data sets.
First, it looked at the number of cases in which decisions were reached
on motions to dismiss in which defendants challenged the specificity of
the pleadings. For the pre–Twombly period, as more fully described above,
the study conducted a number of different searches to identify as many
cases as possible that might have involved challenges to the specificity of
the pleadings, regardless of whether Conley was cited in those decisions.
Similarly, the study involved additional searches of the post–Twombly

2011–  2012]

THE IQBAL EFFECT

281

and post–Iqbal periods that included cases in which the specificity of the
pleadings was challenged, whether the deciding court cited Twombly and/
or Iqbal or not. This analysis yielded a raw number for each time period. In
addition to the further analysis, however, the study identified the average
number of decisions included in the database based on their date of
issuance, compiling a raw number per calendar quarter based on that date.
A word of caution here: I am only claiming that of the 1,800 cases analyzed,
the rate at which motions to dismiss based on specificity of the pleadings
were filed accelerated considerably within this database in the months after
issuance of the Iqbal decision. Certainly further study is needed on this
issue, particularly analysis that is based on all case filings, and all reported
and unreported decisions.
Second, I created a second data set made up of decisions from three
similar time periods: the nineteen months immediately preceding the
decision in Twombly, the nineteen months immediately preceding the
decision in Iqbal, and the nineteen months immediately following Iqbal.
Once the decisions issued in these time frames were identified, the study
looked at the number of decisions granting, either in whole or in part,
the motions to dismiss, and then the extent to which such decisions were
granted with prejudice.
2.  Results.—The results of this analysis yields the time line set forth below.
As one can see, the number of decisions issued per quarter, on average,
rises slightly after Twombly, but then increases dramatically after Iqbal.
Indeed, the number of decisions on such motions in the first quarter of
2004 was only twelve. In contrast, courts issued sixty–one such decisions
in the last full quarter of the study, the third quarter of 2010: a greater than
five hundred percent increase.

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TABLE 9: Cases “In Database”

Furthermore, looking beyond the dismissal rates, the number of
decisions granting motions increases exponentially, especially after Iqbal,
as the following chart shows.

2011–  2012]

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283

TABLE 10: Volume of Decisions, Similar Time Frames:
Pre–Twombly, Pre–Iqbal, Post–Iqbal

At the same time, if there was a corresponding increase in civil rights
case filings generally, or employment or housing cases in particular, then
one could explain this rise in reported decisions on motions to dismiss
based on a concomitant rise in case filings. Yet, despite the fact that during
the time frame studied, the United States was in a deep recession,149 there
has been no increase in case filings, at least in terms of filings in the U.S.
courts. Indeed, as the charts in Appendix B reveal, while there have been
fluctuations in civil rights case filings over the last few years, there has
been only a slight rise in civil rights case filings involving employment
discrimination and a decrease in civil rights case filings related to housing.

149  As Donohue and Siegelman show, the rate of employment discrimination filings in
the twenty–year period between 1969 and 1989 tended to increase in the wake of a depressed
business cycle. John J. Donohue III & Peter Siegelman, Law and Macroeconomics: Employment
Discrimination Litigation over the Business Cycle, 66 S. Cal. L. Rev. 709, 716–17 (1993) (“When
the economy booms, employment discrimination case filings fall in the next half year; when
the economy slumps, case filings rise over the next half year.”). Preliminary data on federal
case filings does not reflect a similar trend in the global recession of the late 2000s. See infra
Appendix B.

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Appendix A

187
145
42
169
8
10
160
122
38
121
22
17
278
205
73
240
11
27

Total
Dismissed
with
prejudice

Group I
Non Pro Se
Pro Se
Disparate Treatment
Disparate Impact
Mixed
Group II
Non Pro Se
Pro Se
Disparate Treatment
Disparate Impact
Mixed
Group III
Non Pro Se
Pro Se
Disparate Treatment
Disparate Impact
Mixed

Total
Dismissed

Appendix A

Total

284

84
31
106
1
8

62
25
80
1
6

57
34
69
8
14

41
24
50
5
10

139
61
169
7
24

89
43
110
5
17

THE IQBAL EFFECT

2011–  2012]

285

Appendix
AppendixBB
Civil Cases Filed in U.S. District Courts Since 2004159
Civil Cases Filed in U.S. District Courts Since 20041

Total Civil Cases
300,000
250,000
200,000
150,000

Total Civil Cases

100,000
50,000
0
2004

2005

2006

2007

2008

2009

2010

Employment
25,000
20,000
15,000
Employment

10,000
5,000

0
2004
2005 from 2006
2010judiciary caseloads from 2001
The following data
was derived
periodical 2007
reports of 2008
statistical 2009
on the federal
to 2011 prepared by the Administrative Officer of the United States Courts. Federal Judicial Caseload Statistics,
U.S. CTS., http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics.aspx (last visited Oct. 25, 2011).

1

Housing

1,400

159 The following data was derived from periodical reports of statistical on the federal
judiciary caseloads from 2001 to 2011 prepared by the Administrative Officer of the United
1,200
States Courts. Federal Judicial Caseload Statistics, U.S. CTS., http://www.uscourts.gov/Statistics/
FederalJudicialCaseloadStatistics.aspx
(last visited Oct. 25, 2011).
1,000
800
600
400
200
0

Housing

20,000
15,000

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10,000

[ Vol. 100
Employment

5,000
0
2004

2005

2006

2007

2008

2009

2010

Housing
1,400
1,200
1,000
800
Housing

600
400
200
0
2004

2005

2006

2007

2008

2009

2010

Employment & Housing Cases - Dual Axis
25,000

1,400
1,200

20,000

1,000
15,000

800
600

10,000

400
5,000

200

0

0
2004

2005

2006

2007

2008

2009

2010

Employment
Housing

2011–  2012]

THE IQBAL EFFECT

287

Appendix C
Statistical Significance
This appendix sets forth the results of the tests conducted to reveal the
statistical significance of the varied findings contained in this study. To
calculate the significance of the findings on the various charts in this piece,
I used the Pearson Chi-Square Test. This test measures the probability
that I would observe an apparent
association
between the independent
Appendix
C
variable and the dependent variable as strong as the one I actually observe if
Statistical Significance
there were no actual association
(i.e., if the null hypothesis of no association
were correct).
Other
things
equal,
a tests
larger
chi-square
statistic value
This appendix sets forth the results of the
conducted
to revealtest
the statistical
indicates
apparent
association
dependent
significance aof stronger
the varied findings
contained
in this study.between
To calculatethe
the significance
of theand
findings on the various
charts in
this piece,
I used
Pearson
Chi-Square
Test.statistic
This test has an
independent
variables.
Each
value
ofthe
the
chi-square
test
measures thep-value
probabilitythat
that Iindicates
would observe
apparent association
between the
independent
associated
theanprobability
of observing
a test
statistic
variable
and
the
dependent
variable
as
strong
as
the
one
I
actually
observe
if
there
were
no actual
value as great as or greater than the actually observed value. P-values
of .05
association (i.e., if the null hypothesis of no association were correct). Other things equal, a
orlarger
lesschi-square
are commonly
referred
to
as
statistically
significant.
The
following
test statistic value indicates a stronger apparent association between the
chart
setsand
forth
the p-value
forEach
thevalue
chi-square
test statistic
with
dependent
independent
variables.
of the chi-square
test statisticassociated
has an associated
each
ofthat
theindicates
different
data sets.
Again,a p-values
less
thanas.05
represent
p-value
the probability
of observing
test statistic of
value
as great
or greater
than
statistically
significant
differences
the
outcomes
analyzed. In
the actually observed
value. P-values
of .05 orinless
aredifferent
commonly referred
to as statistically
significant.
The following
chart setsp-value
forth the p-value
chi-square
test statistic
some
instances,
the higher
belowfor
isthe
likely
a reflection
ofassociated
the small
with
each
of
the
different
data
sets.
Again,
p-values
of
less
than
.05
represent
statistically
differences in the outcomes in a particular chart; in others, as with the
significant differences in the different outcomes analyzed. In some instances, the higher p-value
outcomes
in disparate impact cases in Tables 5 and 6, it is likely a result of
below is likely a reflection of the small differences in the outcomes in a particular chart; in
the
small
sample
size utilized
inimpact
that cases
analysis.
others, as with the outcomes
in disparate
in Tables 5 and 6, it is likely a result of the
small sample size utilized in that analysis.

Table
1
2
3
3
4
4
5
5
5
6
6
6
10
10
10
10

Analysis
Overall Dismissal Rates
“With Prejudice” Dismissal Rates
Overall Dismissal Rates/Plaintiffs Represented by Counsel
“With Prejudice” Dismissal Rates/Plaintiffs Represented by Counsel
Overall Dismissal Rates/Pro Se Plaintiffs
“With Prejudice” Dismissal Rates/Pro Se Plaintiffs
Overall Dismissal Rates/Disparate Treatment Cases
Overall Dismissal Rates/Disparate Impact Cases
Overall Dismissal Rates/Mixed Cases
“With Prejudice” Dismissal Rates/Disparate Treatment Cases
“With Prejudice” Dismissal Rates/Disparate Impact Cases
“With Prejudice” Dismissal Rates/Mixed Cases
Volume of Decisions/Total Dismissed
Volume of Decisions/Total Dismissed with Prejudice
Volume of Decisions/Total Granted in Part-Denied in Part
Volume of Decisions/Total Granted in Part-Denied in Part with Prejudice

P-Value
0.003
0.358
0.014
0.180
0.173
0.906
0.001
0.032
0.156
0.077
0.187
0.318
< 0.001
< 0.001
< 0.001
< 0.001

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