:: New Scholarship Tests Heightened Pleading Requirements Against Empirical Data

Alexander A. Reinert, Assistant Professor of Law, Benjamin N. Cardozo School of Law, has published a meticulously researched article that examines effects of the heightened pleading requirements under recent United States Supreme Court jurisprudence.

Entitled “The Costs of Heightened Pleading”, the article appears in the Winter 2011 issue of the Indiana Law Journal ( 86 Ind. L.J. 119).

Professor Reinert observes that Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) have created a pleading standard that “heightens attention to ‘conclusory’ pleading, treats state of mind allegations in a manner at odds with prior precedent, and encourages lower courts to apply their own  intuitions to decide whether a plaintiff’s legal claims and allegations are sufficient to proceed to discovery.”

Have these developments aided judicial economy and the cause of justice by eliminating a measurable number of meritless claims?  Through a carefully designed research project, this work parses  ”empirical data to question the widespread assumptions about the costs and benefits of heightened pleading.”   This work illustrates a gap in the supposed link between the heightened pleading standards and filtering of meritorious claims.

Nor does the heightened pleading standard come without costs. In this regard, the author suggests “a heightened pleading standard may function in the same way that randomized dismissal would, amounting to a radical departure from pleading standards that few would find satisfactory.”

See, Reinert, Alex A., The Costs of Heightened Pleading (August 16, 2010). Indiana Law Journal, Vol. 86, 2011; Cardozo Legal Studies Research Paper No. 307.

Available at SSRN: http://ssrn.com/abstract=1666770