Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Wednesday, July 29, 2009

Twombly, After Two Years: The Procedural Revolution in Antitrust That Wasn’t

Posted by D. Daniel Sokol

Richard Epstein (U. Chicago Law and the man who taught me Contracts) explains Twombly, After Two Years: The Procedural Revolution in Antitrust That Wasn’t.

ABSTRACT: Without question, Bell Atlantic v. Twombly ranks as one of the most controversial decisions of the United States Supreme Court in recent years. Its importance stems from the simple reason that it lies at the crossroads of antitrust and civil procedure, with vast potential implications for both fields. As a matter of antitrust law it raised the possibility that a large number of complex cases would be dismissed prior to discovery. As a matter of civil procedure, the decision offers the most systematic examination of the pleadings standards in federal cases since the bellwether case of Conley v. Gibson, decided one-half century earlier. Neither of these revolutions will come to pass. On the substantive side, only cases for which there are strong theoretical reasons to doubt the plaintiff’s case will be dismissed under Twombly. On the procedural side, Twombly will not be read to undo the usual rules of notice pleading except in rare cases. It will amount to a subtle but useful recalibration of existing doctrine. It will not become, nor should it become, a transformative case.

To establish these claims, I shall proceed as follows. Part II examines compares the rule in Conley with the rule in Twombly in light of their very different factual patterns. Part III then looks at subsequent decisions under Twombly, first in the Supreme Court, where there are no new antitrust cases, and then in the lower federal courts, where the decision has been subject to extensive discussion both in the general law and in the antitrust area. These cases show an incremental movement in the law that will in general follow the older practice of using the pleadings for notice purposes, and discovery for fact finding purposes.

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