Pretrial practice in federal civil litigation has dramatically changed over the last thirty years. Pretrial practice, pleading, discovery, Daubert motions, summary judgment, and settlement have become the focus of federal civil litigation while trials have vanished. Judges have become managers and gatekeepers, while juries have disappeared. Public adjudication in courts has been reduced. Judicial gatekeeping is happening at an earlier stage than ever before. The recent Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, which have dramatically heightened pleading standards, are already turning 12(b)(6) motions to dismiss into early summary judgments. Iqbal has been described as the “sleeper case” of the 2008 Term because of its unexpected impact on every federal civil matter filed in the federal courts. One commentator noted that “Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts.” Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges at the Second Circuit Judicial Conference that the ruling was both important and dangerous. “In my view,” she said, “the [C]ourt’s majority messed up the federal rules” governing civil litigation.

Although some have argued that concerns about the cost of litigation, especially discovery, are shaping these developments—the majority suggested as much in both Twombly—this is not the whole story. Many factors beyond litigation cost are influencing these decisions. Judicial decisions at every level, including the Supreme Court, have expressed a widespread and generalized “hostility to litigation.” The Class Action Fairness Act of 2005 (CAFA), for example, was enacted in order to move tort litigation from state to federal courts, where defendants believe that they will get a more receptive hearing. As the ideological predilections of federal judges have shifted, many federal judges have expressed the view that employment discrimination and civil rights cases are often weak and without merit.