POLITICS, IDENTITY, AND PLEADING DECISIONS ON THE U.S. COURTS OF APPEALS.

• Author: Burbank, Stephen B.

INTRODUCTION 2129 I. PLEADING, DISCOVERY AND ACCESS TO COURT UNDER THE FEDERAL RULES OF CIVIL PROCEDURE 2134 A. The Original Understanding 2134 B. The Road to Retrenchment 2137 C. The New Regime 2139 1. The Supreme Court's Pleading Decisions 2139 2. Evaluating the Court's Decisions: Normative Concerns 2142 II.IDEOLOGY AND IDENTITY ON THE COURTS OF APPEAL: THE EMPIRICAL LITERATURE 2145 A. Party 2146 B. Gender and Race 2147 1. Gender 2147 2. Race 2149 C. Procedural Law and Access to Justice 2150 IIIDATA, MODELS, AND ANALYSIS 2152 A. The Data 2152 B. Policy Distribution of the Claims 2157 C. Panel Effects 2158 D. Statistical Models 216o 1. Party 2162 2. Gender 2164 3. Race 2168 CONCLUSION 2170 APPENDIX 2174 I. SAMPLES USED IN EACH REGRESSION 2174 II. CLAIM-LEVEL MODEL SPECIFICATIONS 2175 III. MODEL INTERPRETATION 2176 IV. FIRTH MODELS FOR RARE EVENTS 2176 V. VOTE-LEVEL MODELS 2177 VI. TABLES 2180 INTRODUCTION

In recent work we have sought to illuminate the extent to which federal court decisions in the realm of procedure reflect non-legal influences on judicial behavior that have been shown to affect decisions about substantive law in policy areas of high salience. We started by studying the decisions of the Supreme Court on issues implicating private enforcement of federal law, such as standing, attorney's fees, arbitration of federal claims, and the interpretation of pertinent Federal Rules of Civil Procedure. (1) We found that, as a group, these decisions are more influenced by ideology than are the Court's decisions on merits issues, and that the Court's Federal Rules decisions are more influenced by ideology than either. (2)

Motivated by these findings to extend the scope of the inquiry beyond the Supreme Court and beyond ideology, we compiled an original comprehensive data set that includes precedential Court of Appeals decisions on issues of class certification under Rule 23 from 1967 through 2017, together with nonprecedential decisions since 2002. In the first article based on these data, we explored the roles of ideology, race and gender in class certification decisions. (3) We found that, at the Court of Appeals level, ideology is strongly associated with class certification decisions, playing a role akin to that found in cases raising some of the most controversial substantive law issues of the day. (4) To those who understand the power of procedure in general and the catalytic power of the class certification decision in particular, and who have followed the increasing role that ideology has played in Court of Appeals appointments in recent decades, this was not a surprise.

Reflecting on the centrality of the class certification decision to court access and the importance of class actions in the struggles for racial and gender equality caused us to study whether identity characteristics such as race and gender may also play a role in class certification decisions. Here, unlike our investigations of the role of ideology, we were not merely extending prior panel-effects studies of judicial behavior, which have neglected procedural decisions. We were working in the context of an emerging consensus that Court of Appeals "judges' gender and race are associated with variation in preferences only in a narrow band of cases presenting issues of substantive law that directly and explicitly implicate discrimination and inequality." (5) We found that the presence of one African American on a panel, and the presence of two women (but not one), is associated with pro-certification outcomes even in cases not involving civil rights claims. For many, we think, this was a surprise.

Although neither our data nor prior panel-effects scholarship enabled us to identify the reasons for the different preferences of women and African Americans as to class certification, we offered several suggestions to guide further study:

As transsubstantive procedural law, the Federal Rules of Civil Procedure apply across substantive domains and can enable or constrict access to justice. A controlling interpretation of a Federal Rule in an antitrust case, for example, will carry over into its application in a voting rights case. One important insight of this Article is that the transsubstantive nature of the Federal Rules can also convey the substantive effects of diversity across the landscape of American regulatory law. Court of Appeals judges understand that the Federal Rules are transsubstantive, as are the effects of some Federal Rules (importantly including Rule 23) on the enforcement of substantive law. As strategic actors, it would be rational for them to take into consideration how class-certification doctrine in a case that does not implicate issues on which they have strong preferences might affect certification in cases that do. Alternatively, or in addition, our results may be the first evidence that transsubstantive procedural law affecting access to justice is itself a policy domain in which women and African Americans have distinctive preferences. (6) In this article, we report the first results of a study designed to gain additional insight on the extent to which ideology, race and gender are associated with judges' decisions on procedural issues critical to court access. For this purpose, we chose to study federal appeals challenging rulings on motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court's decisions in Bell Atlantic Corp. v Twombly (7) and Ashcroft v. Iqbal. (8) We created two original data sets, one consisting of precedential (published) decisions after Iqbal was decided in 2009 through 2019, and the other a random sample of decisions in the same period, a substantial majority of which are nonprecedential (unpublished) decisions.

In Section I we first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, stressing the views of the original Advisory Committee that (1) pleading was an inferior means to uncover the facts grounding a plaintiff's claims, a role better left to discovery, and (2) judicial gate-keeping at the pleading stage often arbitrarily and unfairly deprived plaintiffs of access to information that was available only through discovery.

We then discuss strategies that emerged in response to an enormous increase in federal litigation beginning in the late 1960s, which sought more effectively to curb wasteful litigation behavior and identify and weed out claims lacking sufficient support to warrant a trial (or elicit a settlement). One such strategy was to restore fact pleading by amending the Federal Rules, but it never gained traction, probably because the Advisory Committee recognized that the effort would embroil the rulemaking process in political controversy, putting at risk the major source of the judiciary's control of procedure by legislative intervention in that domain.

Although the rulemaking process was used repeatedly to rein in the costs of discovery, the Supreme Court invoked discovery's costs as a reason to change the requirements that the pleading rules impose. We describe the Court's decisions in Twombly and Iqbal, stressing that the Court's reinterpretations of the pertinent rules introduced a new gatekeeping strategy, rooted in denying a presumption of truth to allegations deemed to be conclusory, and dismissing claims deemed to be implausible based on "judicial experience and common sense." We conclude Section I with a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify subjective decision-making.

In Section II, we review the empirical literature on the association between outcomes and Court of Appeals judges' party (of appointing president), gender and race. That literature has overwhelmingly ignored transsubstative procedural law. Empirical results in the literature are something of a patchwork, with scholars sometimes detecting significant relationships where they expected to find them, but sometimes not, in ways that are difficult to explain based upon general theories about salience or preferences. Still, an apparent consensus has emerged that gender and race are associated with voting only on some types of claims based on discrimination or inequality.

Finally, in Section III we describe our data and results. Critics of Twombly and Iqbal worry that the new 12(b)(6) standard introduces excessive subjectivity and ideology into disposition of 12(b)(6) motions, with a particular concern about civil rights cases. Although we do not compare pre-and post-Iqbal decision-making, we examine the extent to which the party, gender and race of panel members are associated with their disposition of 12(b)(6) appeals in cases brought by individuals against business or government since Iqbal. In addition to analyzing all policy areas pooled, we separately analyze discrimination claims, all "other civil rights" claims, and non-civil rights claims. We also separately analyze a random sample of (predominantly non-precedential) cases, and a set of only precedential cases. Our results vary across identity characteristic, policy area, and random sample versus precedential cases. The patchwork character of our results reflects the judicial behavior literature that we contribute to.

In our random sample of cases, we find that judges' gender and race are associated with outcomes in other civil rights claims (excluding discrimination). This broad and varied civil rights category amounts to one in four 12(b)(6) appeals in our data, overwhelmingly made up of constitutional claims against governmental actors, commonly arising in such areas as policing, prisons, and public employment. Panels with one woman or one non-white judge have more than double the likelihood of rendering a decision in favor of the plaintiff as compared to all-male and all-white panels. In the same models, party of appointing...