When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards
This paper applies a simple economic framework to the choice between pleading and summary judgment as points at which a claim can be dismissed. It concludes generally that pleading standards should vary with the evidentiary demands of the associated legal standards and the social costs of litigation. The common law’s imposition of higher pleading standards for fraud claims is consistent with this proposition. The theory implies that the rigorous summary
judgment standards that have been developed by antitrust courts should lead to a correspondingly rigorous assessment at the pleading stage.