The Effect of Tort Reform on Tort Case Filings

Does so-called tort reform decrease tort case filings? In Texas and other states that have enacted numerous rounds of tort reform, the answer appears to be a resounding yes, at least as of the year 2000. More recent evidence from Oklahoma supports that conclusion and provides an interesting case study within the tort reform juggernaut. During at least the past twenty years, tort reformers have achieved substantial legislative successes and, some would argue, public relations victories. Yet their desire for more reform seems insatiable, and their legislative agenda rarely sleeps. Tort reform bills bloom perennially in the Oklahoma legislature, and numerous significant changes in liability rules, restrictions on remedies, and procedural innovations were enacted in 2002, 2003, and 2004. Despite their apparent success, tort reformers spun these victories as losses and vowed to press on. One omnibus tort reform bill passed by the legislature in 2007 was immediately vetoed by the governor. Its supporters, apparently undeterred, resurrected most of the provisions from the defeated 2007 bill and reintroduced them in 2008. One might reasonably ask whether anyone has stopped to see what, if anything, the enacted reforms have already wrought, before advocating even more sweeping changes. This article will make a small contribution toward answering that question

The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?

This article is an empirical study of the effect of Bell Atlantic Corp. vs. Twombly, 550 U.S. 544 (2007), and Ashcroft vs. Iqbal, 129 S. Ct. 1937 (2009), two recent Supreme Court cases that portend the decline of “notice pleading” in federal civil practice. The article analyzes how Twombly and Iqbal have begun to dismantle the regime of notice pleading by not only discarding the “no set of facts” standard of Conley vs. Gibson, 355 U.S. 41 (1957), but by changing or ignoring other principles that federal courts have followed for decades on 12(b)(6) motions. The statistical study then examines how Twombly and Iqbal may have affected federal district court rulings on 12(b)(6) motions in practice. The statistical analysis of 1,039 cases shows that 49% of 12(b)(6) motions were granted (with or without leave to amend) in the cases selected (from May 2005 to August 2009). Further, the rate of granting such motions increased from 46% of motions decided under Conley, to 48% of motions decided under Twombly, to 56% of motions decided under Iqbal. A multinomial logistic regression indicates that under Twombly, the odds that a 12(b)(6) motion would be granted with leave to amend, rather than denied, were 1.81 times greater than under Conley, holding all other variables constant. Under Iqbal, the odds that a 12(b)(6) motion would be granted with leave to amend, rather than denied, were over four times greater than under Conley, holding all other variables constant. Moreover, the largest category of cases in which 12(b)(6) motions are filed was constitutional civil rights. Motions to dismiss in constitutional civil rights cases were granted at a higher rate (53%) than in cases overall (49%), and the rate of granting 12(b)(6) motions in constitutional civil rights cases increased in the cases selected from Conley (50%) to Twombly (55%) to Iqbal (60%). The article concludes that Twombly and Iqbal have resulted in a noticeable increase in the granting of 12(b)(6) motions by district courts, and suggests that such a result, if desirable, should be accomplished by the normal rule-amendment process

The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?

This article is an empirical study of the effect of Bell Atlantic Corp. vs. Twombly, 550 U.S. 544 (2007), and Ashcroft vs. Iqbal, 129 S. Ct. 1937 (2009), two recent Supreme Court cases that portend the decline of “notice pleading” in federal civil practice. The article analyzes how Twombly and Iqbal have begun to dismantle the regime of notice pleading by not only discarding the “no set of facts” standard of Conley vs. Gibson, 355 U.S. 41 (1957), but by changing or ignoring other principles that federal courts have followed for decades on 12(b)(6) motions. The statistical study then examines how Twombly and Iqbal may have affected federal district court rulings on 12(b)(6) motions in practice. The statistical analysis of 1,039 cases shows that 49% of 12(b)(6) motions were granted (with or without leave to amend) in the cases selected (from May 2005 to August 2009). Further, the rate of granting such motions increased from 46% of motions decided under Conley, to 48% of motions decided under Twombly, to 56% of motions decided under Iqbal. A multinomial logistic regression indicates that under Twombly, the odds that a 12(b)(6) motion would be granted with leave to amend, rather than denied, were 1.81 times greater than under Conley, holding all other variables constant. Under Iqbal, the odds that a 12(b)(6) motion would be granted with leave to amend, rather than denied, were over four times greater than under Conley, holding all other variables constant. Moreover, the largest category of cases in which 12(b)(6) motions are filed was constitutional civil rights. Motions to dismiss in constitutional civil rights cases were granted at a higher rate (53%) than in cases overall (49%), and the rate of granting 12(b)(6) motions in constitutional civil rights cases increased in the cases selected from Conley (50%) to Twombly (55%) to Iqbal (60%). The article concludes that Twombly and Iqbal have resulted in a noticeable increase in the granting of 12(b)(6) motions by district courts, and suggests that such a result, if desirable, should be accomplished by the normal rule-amendment process

Are Women More Ethical Lawyers? An Empirical Study

We first noticed a possible gender gap in attorney discipline when we ran across the Oklahoma Disciplinary Commission\u27s annual report for the year 2000. Women currently constitute 27% of Oklahoma attorneys, but 0% of the disciplined attorneys—none of the seventeen named—were women. Wondering whether the Oklahoma figures were aberrational, we attempted to locate research concerning gender and attorney discipline. But there have been few such studies, although “[p]robably no issue in the social sciences receives more attention than the difference between men and women.” We thus embarked upon a national study of disciplinary actions decided in 2000. After collecting, coding, and analyzing about 3500 publicly available cases from all fifty states and the District of Columbia, we conclude that female attorneys are, in fact, disciplined at a significantly lower rate than male attorneys, relative to their respective proportions in the United States attorney population. This Article presents the primary statistical findings of our study of gender differences in attorney discipline. We examined, with respect to male and female attorneys, the overall rates of discipline imposed, the frequency with which different types of sanctions (such as disbarment and suspension) were imposed, the frequency with which male and female attorneys committed different types of ethical violations (such as incompetence or failure to communicate with clients), and other potentially relevant differences. Through regression analysis, we also attempted to discover if gender was a significant predictor of the severity of a sanction. Part II describes the methodology used to collect, code, and analyze the observations included in our database. Part III presents the results of our statistical analysis. Part IV discusses, necessarily speculatively, possible factors contributing to the gender differences that were found in the study, with attention to other empirical studies of gender and moral reasoning