Testing for Change in Procedural Standards, with Application to Bell Atlantic v. Twombly
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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, plaintiff s 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 plainti ffs 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 (1984) divergent expectations and Bebchuk (1984) asymmetric information models to develop a methodology for measuring changes in procedural standards in the presence of selection eff ects. I apply this methodology to Bell Atlantic Corp. v. Twombly, whose e ffects on dismissal rates have been subject to considerable speculation and debate. I find that Twombly precipitated no signi cant change in dismissal rates, even after accounting for selection e ffects.
Read original articleTags: Bell Atlantic, Bell Atlantic Corp. v. Twombly, legal standards, Twombly Quantifying
