Academic

Blair-Stanek on Matthews & Twombly

By Lawrence Solum

Andrew Ralph Blair-Stanek has posted Understanding Bell Atlantic v. Twombly as Mathews v. Eldridge Applied to Discovery (Florida Law Review, Vol. 62, 2010) on SSRN. Here is the abstract:

The Supreme Court?s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous ?plausibility? standard. This Article argues that Twombly was not revolutionary but simply part of the Court?s ever-expanding application of the familiar three-factor Mathews v. Eldridge test. Misused discovery can deprive litigants of property and liberty interests, and in some cases Mathews requires the safeguard of dismissing the complaint. This Article?s insight explains Twombly?s origins and structure, while also suggesting a source for lower courts to draw on in developing post-Twombly jurisprudence.

I read this note by a current law clerk with great interest--creative, provocative, and illuminating. It raises some very interesting questions:

--If discovery burdens on defendants compel the Twombly rule, what is the constitutional implication of discovery burdens on plaintiffs and third parties?

--What are the implications of the Seventh Amendment right to a jury trial for the application of Matthews to the question whether you get to a jury? Does this analysis in this article imply that extensive/expensive discovery is unconstitutional unless it is accompanied by strict pleading rules? How can that be reconciled with equity practice at the time the Due Process Clause was adopted at the end of the Eighteenth Century?

--Does the availability of a hearing to contest the burdensome discovery satisfy the Matthews test?

Full post as published by Legal Theory Blog on April 28, 2009 (boomark / email).