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Abstract
This Note presents the results of a randomized survey conducted to assess whether varying the standard of proof impacts mock jurors' ultimate decisions. The fact pattern in this survey centers on a hypothetical civil theft scenario in a hotel room. The results in this survey are the first from a randomized experimental design that show that juror responses are the same for both a preponderance standard and a clear and convincing evidence standard. Consistent with the prior literature, the results from this survey demonstrate that jurors are most likely to return a defendant-friendly verdict under the beyond a reasonable doubt standard. Overall, this Note adds to the existing literature that aims to empirically understand the degree to which standards of proof actually impact outcomes and, if so, how much they matter.
I. Introduction
In 1957, the Supreme Court clarified the federal pleading standard for civil litigation in Conley v. Gibson} The Court held that plaintiffs avert case dismissals at the pleading stage unless they can prove "no set of facts in support of [their] claim which would entitle [them] to relief."2 Accordingly, judges were not to dismiss cases early in the litigation process that might become more developed through discovery. The hope was that this liberal standard-"notice" pleading-would provide plaintiffs access to the courts and the justice system.3 This nonrestrictive "no set of facts" standard reigned for another 50 years until the Supreme Court in 2007 revisited the standard4 in Bell Atlantic Corp. v. Twombly5 and again two years later in Ashcroft v. Iqbal.6 These cases retired the Conley era of "notice" pleading and ushered in a new "plausibility" regime for pleading, requiring plaintiffs to provide "sufficient factual matter" to state a claim that is "plausible."7
Judges are now required to use common sense to determine whether allegations in a complaint are merely conclusory, or if they are plausible upon the facts presented and thus worthy of surviving dismissal at the pleading stage.8 A constellation of factors-concerns over meritless lawsuits, inundation of the courts, costly yet baseless discovery compliance, and a more conservative and pro-business federal bench-triggered the move from notice pleading to plausibility pleading.9
Twombly and Iqbal (colloquially referred to as "TwiqbaF) sent tremors through the legal community.10 Indeed, these cases reverberate...