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Unpublished Paper
The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation under the New Plausibility Standard
  • Raymond H Brescia, Albany Law School
  • Edward J Ohanian

Is civil procedure political? In May of 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, which explicitly extended the “plausibility standard,” first articulated in Bell Atlantic v. Twombly two years earlier, to all civil pleadings. That standard requires that pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil Procedure, must state a plausible claim for relief. For many, these rulings represented a sea change in civil pleading standards. Where prior Supreme Court precedent had provided that a pleading should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim,” the new standard requires that judges utilize their own “judicial experience and common sense” to determine whether claimants have set forth facts sufficient to “nudge[] their claims across the line from conceivable to plausible.” Could this apparently neutral principle of procedure be subject to political manipulation?

After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily. Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents. As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal). This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.

The study revealed a statistically significant difference in the outcomes in civil rights cases based on the political affiliation of the president appointing the judge reaching the decision in each case. While there were increases in dismissal rates after Iqbal, for all judges regardless of the party affiliation of the president appointing each judge, for judges appointed by Democratic presidents, that differences was statistically insignificant. For judges appointed by Republican presidents, however, there was a 37% increase in the dismissal rate of employment and housing discrimination cases after the Supreme Court’s decision in Iqbal, as compared to just a 6% increase in dismissal rates among decisions issued by judges appointed by Democratic presidents. This paper reports on the findings of this study and discusses their implications.

Publication Date
Citation Information
Raymond H Brescia and Edward J Ohanian. "The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation under the New Plausibility Standard" (2013)
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