The Twiqbal Puzzle and Empirical Study of Civil Procedure
Few developments in civil procedure have caused anything like the furor that has greeted the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal (hereinafter “Twiqbal”). Indeed, earlier installments in the modern transformation of pretrial practice—from the rise of summary judgment, as symbolized by the Supreme Court’s 1986 Celotex trilogy, to the serial expansion of judicial case-management powers under Rules 16 and 26 and the related spread of “managerial judging”—look like blips on the scholarly radar by comparison. Yet the reaction to Twiqbal has not just been notable for its volume or intensity. The reaction has also, to an unusual degree, tended toward the empirical. In fact, it sometimes seems as if a hundred empirical flowers have bloomed, each purporting to capture something significant about the decisions’ on-the-ground impact.