More TwIqbal Scholarship


We've found something quite rare - a balanced law review article on TwIqbal. It's called Iqbal "Plausibility in Pharmaceutical and Medical Device Litigation," 71 La. L.R. 541 (Winter 2011), and it's by Prof. William Janssen (we don't think there's any connection to Janssen Pharmaceuticals of Oxycontin fame, but we don't know for sure one way or the other). The good professor sent us a copy, but for our readers we were able to locate an online copy here (see full article below for link). The article's relatively unbiased because it's empirical. Instead of trying to prescribe what the law should be with respect to TwIqbal and pleading, is sticks to what has happened. Having selected drug and device (not necessarily product) liability litigation, Prof. Janssen looks at over 250 TwIqbal cases and attempts to devine whether TwIqbal in fact changed the result. Without giving away everything in his article (which we found an interesting, if rather lengthy, read), he basically concludes that, all in all, TwIqbal doesn't matter all that much - affecting the outcome of, at most 21% of the cases reviewed. He sums up his conclusion thusly:

[I]f one is inclined to see in Iqbal the harbinger of momentous change in federal pleading, an arrival greeted either alarmingly (in fear of meritorious cases lost) or warmly (in appreciation of unmeritorious cases purged), the cause for either alarm or delight is waning. 71 La. L.R. at 643 (one of the incessant footnotes omitted). Not only was the difference all that great to begin with, but Prof. Janssen's study detects a decrease in TwIqbal's importance over time. Id.

Please see full article below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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