Law & Economics Working Papers
The recent Supreme Court decision in Bell Atlantic v. Twombly stands at the crossroads of antitrust and civil procedure. As an antitrust case, Twombly makes sense on structural grounds. The FCC regulation of the telecommunications industry, and the many innocent explanations as to why each telecommunications company would stay out of its rival’s territories obviated the need for further discovery. But in many other contexts, including Conley v. Gibson—a case involving potential breach of the duty of fair representation on matters of racial discrimination— discovery could flesh out the relevant factual issues. The Supreme Court’s general disapproval of Conley sweeps far too wide. Discovery should only be denied when the plausible inferences that can be drawn from the complaint and publicly available evidence clearly imply further discovery is of little value. Accordingly, the Federal Rules of Civil procedure should explicitly acknowledge that in a small set of cases motions on the pleadings can properly function as truncated and disguised motions for summary judgment.
Richard A. Epstein, "Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments" (John M. Olin Program in Law and Economics Working Paper No. 403, 2008).