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Testing for Change in Procedural Standards, with Application to Bell Atlantic v. Twombly

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  • William H. J. Hubbard

Abstract

Quantifying change in legal standards--in the sense of change in the propensity of judges to decide cases a certain way--presents a vexing problem. In response to a change in the behavior of courts, plaintiffs and defendants will adjust their patterns of filing and settling cases. Models of the selection of disputes for litigation predict that when legal standards change, the rate at which plaintiffs prevail in litigation will not predictably change; if so, changes in legal standards cannot be measured with data on court outcomes. I consider both the Priest and Klein divergent-expectations model and the Bebchuk asymmetric-information model to develop a methodology for measuring changes in procedural standards in the presence of selection effects. I apply this methodology to Bell Atlantic Corp. v. Twombly, whose effects have been subject to speculation and debate. I find that Twombly precipitated no significant change in dismissal rates, even after accounting for selection effects.

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  • William H. J. Hubbard, 2013. "Testing for Change in Procedural Standards, with Application to Bell Atlantic v. Twombly," The Journal of Legal Studies, University of Chicago Press, vol. 42(1), pages 35-68.
    • Handle: RePEc:ucp:jlstud:doi:10.1086/668506
    DOI: 10.1086/668506
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    References listed on IDEAS

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    1. Waldfogel, Joel, 1995. "The Selection Hypothesis and the Relationship between Trial and Plaintiff Victory," Journal of Political Economy, University of Chicago Press, vol. 103(2), pages 229-260, April.
    2. Gillian K. Hadfield, 2004. "Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 1(3), pages 705-734, November.
    3. George L. Priest & Benjamin Klein, 1984. "The Selection of Disputes for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 13(1), pages 1-56, January.
    4. Siegelman, Peter & Donohue, John J, III, 1995. "The Selection of Employment Discrimination Disputes for Litigation: Using Business Cycle Effects to Test the Priest-Klein Hypothesis," The Journal of Legal Studies, University of Chicago Press, vol. 24(2), pages 427-462, June.
    5. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, vol. 15(3), pages 404-415, Autumn.
    6. Shavell, Steven, 1996. "Any Frequency of Plaintiff Victory at Trial Is Possible," The Journal of Legal Studies, University of Chicago Press, vol. 25(2), pages 493-501, June.
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