An information-forcing approach to the motion to dismiss

Abstract

This article proposes a new approach to the 12(b)(6) motion to dismiss. We propose the use of cost shifting in the initial process of factual claiming and denials to create incentives for parties to acquire or reveal information germane to the motion to dismiss by forcing them to absorb the costs of either producing the information or denying its existence. Our proposal would incentivize both parties to reveal information pertinent to the court's decision. It promises to improve the operation of the motion to dismiss regardless of the substantive standard used to evaluate the sufficiency of the claims for relief. © The Author 2013. Published by Oxford University Press on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School.