Wednesday, March 2, 2011
Posted by D. Daniel Sokol
Richard Epstein (University of Chicago, NYU) has recentled penned Of Pleading and Discovery: Reflections on Twombly and Iqbal with Special Reference to Antitrust.
ABSTRACT: This Essay explores the evolving influence of Twombly and Iqbal on modern antitrust litigation. The author argues that any proposed statutory repudiation of Twombly and Iqbal is premature. He also develops a model that calls for a periodic reevaluation of the overall strength of a plaintiff’s case to see if a final motion dismissing the case or some part thereof is appropriate before discovery runs its course. That approach should be followed in a limited number of big cases. The key to the successful judicial administration of discovery is to require that plaintiffs gather publicly available information in order to make credible their claims of a valid cause of action. It also encourages a more active judicial supervision of discovery in large cases to evaluate whether the evidence produced at any point warrants further discovery. Finally, the author criticizes the current rules governing “civil investigative demands” from the Antitrust Division as being far too intrusive relative to the parallel rules that govern discovery under the Federal Rules of Civil Procedure.