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American University Law Review





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In 2007, the Supreme Court issued its opinion in Bell Atlantic Corp. v. Twombly, sending “shockwaves” through the federal litigation bar. Seemingly without prior warning, the Court abrogated “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”—the standard for deciding 12(b)(6) motions first stated fifty years earlier in Conley v. Gibson. To replace the old rule, the Court announced a new “plausibility” standard: that a complaint must allege “enough facts to state a claim to relief that is plausible on its face.”

Twombly contained some indications that the Court intended to limit its holding to Sherman Act cases. Nonetheless, the federal courts largely embraced Twombly’s “plausibility” standard for all cases. Almost two years to the day after Twombly, the Supreme Court laid the matter to rest in Ashcroft v. Iqbal, holding that the Twombly “plausibility” standard applies to all cases. Iqbal further explained that “judicial experience and common sense” should inform the “plausibility” standard.

In addition, Iqbal set forth a “two-pronged” approach to 12(b)(6) motions. First, the court should identify and ignore all “conclusions” from the complaint not entitled to be taken as true for purposes of the motion to dismiss. Second, the court should apply the “plausibility” standard to the complaint’s remaining allegations. If Twombly caused a shock, Iqbal struck a blow. A firestorm of protest ensued over Iqbal’s alleged judicial activism.

Absorbed by the vigorous academic debate, I wondered if it could be empirically demonstrated that district courts ruled much differently on 12(b)(6) motions after Twombly. Thus, for this Article, I conducted an empirical analysis of the effects of the different Supreme Court standards on rulings on 12(b)(6) motions in the federal district courts.

Recommended Citation

Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically, 59 Am. U. L. Rev. 553 (2010).



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