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 ince…