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Home > Print > Politics, Identity, and Pleading on the U.S. Courts of Appeals

Politics, Identity, and Pleading on the U.S. Courts of Appeals

Stephen B. Burbank & Sean Farhang

Volume 169Issue 8 2021
Article

We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly in civil rights cases.

Stephen B. Burbank is the David Berger Professor for the Administration of Justice at the University of Pennsylvania Carey Law School. Sean Farhang is Elizabeth Josselyn Boalt Professor of Law, and Professor of Political Science and Public Policy, at the University of California, Berkeley.

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