In my view, Ms. Mitchell and Mr. Wallach’s retort that discovery in anti-trust is too expensive, merely proves my point.  As I noted in a previous post, the best evidence I have seen places the discovery costs of complex anti-trust suits at 33% of the amount at stake.  In $20 Million dollar suit, that is a lot to spend on discovery.  I have never disagreed that discovery in an anti-trust suit is expensive.  But anti-trust, and a few others like mass tort, are the exception to the rule.  It makes little sense to change all of procedure to accommodate 5% of the cases.  This is especially true when we already have a device, Rule 9, under which we can require pleading with specificity for a delimited class of cases.

Ms. Mitchell and Mr. Wallach also question the validity of the sample and study upon which I rely.  All the more reason for this discussion to have happened in the rules committee.  They could have looked to numerous studies, had public comment, commissioned a new study etc. 

If the imposition of fact pleading as to the 95% (or whatever the number is) of cases where discovery is closer to 3% of the amount at stake came at no cost, I would not complain.  The difficulty is the catch-22 I described earlier.  There are certain categories of cases, like intentional discrimination cases, where plaintiff’s claim requires allegations about facts that the plaintiff cannot obtain without discovery.  In the federal system until Twombly/Iqbal, plaintiff relied upon inference to survive a Rule 12(b)(6) motion in this regard.  This seems much less likely now.  As such, the Iqbal regime comes at the cost of dismissing more potentially meritorious cases pre-discovery. 

Hence, my view that a middle course is more appropriate.  Only in those cases, like anti-trust, where we know discovery is astronomically expensive, should we require fact-pleading.  We can do that by amending Rule 9.  But as to the vast bulk of cases, this cost-benefit analysis (as I understand the empirical evidence) does not weigh in favor of more rigorous pleading, because we will dismiss more potentially meritorious cases early even though we do not face a huge discovery cost problem here.

As I noted earlier, 15 states continue with a type of fact-pleading regime.  Nevertheless, these systems work reasonably well, even with the type of cases I describe above, in large part do the practice of pleading upon “information and belief.”  In essence this is a means of satisfying a fact-pleading requirement without actually attesting to the veracity of the fact. 

The Court has yet to adequately address this issue.  Allowing a liberal information-and-belief practice would essentially take the sting out of Iqbal and Twombly.  As such, I doubt this practice will settle in at the federal level.  Leaving us with the catch-22 I describe.

As to stigma harms for law suits, I agree that a falsely brought civil suit brings some stigmatic harm for defendants.  But losing the ability to bring, say, a meritorious Title VII claim because our pleading standard asks plaintiff to allege facts s/he cannot obtain brings costs too.    We should rationally balance those harms against the best evidence we have in a forum institutionally capable of engaging in the inquiry (i.e., the rules committee).