A forthcoming YLJ Note has already received attention from legal commentators. Jonah Gelbach, a second-year student at Yale Law School, has written a Note titled Locking the Doors to Discovery? Conceptual Challenges in and Empirical Results for Assessing the Effects of Twombly and Iqbal on Access to Discovery. Read Lawrence Solum’s discussion of the Note on Legal Theory Blog and Alison Frankel’s On the Case post about it on the Thomson Reuters legal news site. 

In the forthcoming Note, Gelbach uses publicly available data and a new empirical approach to study the effects of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. Although the grant rate for Rule 12(b)(6) motions to dismiss pre-Twombly is about the same as the grant rate for Rule 12(b)(6) motions to dismiss post-Iqbal, Gelbach shows that defendants file Rule 12(b)(6) motions much more frequently post-Iqbal than they had in the pre-Twombly era.

Gelbach concludes that “among cases not involving financial instruments, civil rights, or employment discrimination, at least 18% of those that faced a Rule 12(b)(6) MTD during the post-Iqbal period ultimately will have been prevented from reaching discovery on at least one claim as a result of the switch to heightened pleading.” Gelbach also casts doubt on the common expectation that Twombly and Iqbal would have the most dramatic effects in the civil rights and employment discrimination contexts: his lower-bound estimates for the effects of Twombly and Iqbal on civil rights and employment discrimination cases are almost exactly the same as his lower-bound estimate for the effects of the decisions on other types of suits.

Gelbach’s Note will be published in Volume 121 of The Yale Law Journal in 2012. To read a preliminary draft on SSRN, please click here.