A Proceduralist’s Perspective on Court Access After Twombly

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Robert Bone, Jul 30, 2009

Many judges, lawyers, and academics worry that the federal courts are in serious trouble, plagued by high litigation costs, huge delays and case backlogs, and unacceptable risks of frivolous litigation. These complaints are not new; they began in a strong way about three decades ago and have remained intense ever since. Whether the situation is as serious as the critics claim and there are certainly those who believe the concerns are overblown the widely shared perception that there are problems has led to major changes in federal civil procedure over the past three decades. The Supreme Court’s recent decision in Bell Atlantic Corp. v. Twombly is one of the most controversial developments along these lines. Twombly was a nationwide antitrust class action brought under Section 1 of the Sherman Act alleging an anti-competitive conspiracy among the four largest telecommunications companies in the United States. The Court held that the plaintiffs failed to allege sufficient facts to support a plausible inference of agreement and that as a result the district judge properly dismissed the complaint. On a more general level, the decision increases the pleading burden and in so doing makes it more difficult for plaintiffs to gain access to federal courts. I have written about Twombly in a published article, and this short commentary draws on the analysis I develop there. I will first briefly explain the decision’s impact and then sketch the outlines of a policy critique. (To view the original article, see Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 874 (2009).