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Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments

Richard A. Epstein
University of Chicago - Law School; Stanford University - Hoover Institution on War, Revolution and Peace


April 2008

U of Chicago Law & Economics, Olin Working Paper No. 403

Abstract:     
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.

Keywords: antitrust collusion, telecommunications, FCC, summary judgment, judgment on the pleadings, discovery

Working Paper Series

Date posted: April 29, 2008 ; Last revised: May 14, 2008

Suggested Citation

Epstein, Richard A., Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments (April 2008). U of Chicago Law & Economics, Olin Working Paper No. 403. Available at SSRN: http://ssrn.com/abstract=1126359


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Contact Information

Richard A. Epstein (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9563 (Phone)
773-702-0730 (Fax)
Stanford University - Hoover Institution on War, Revolution and Peace ( email )
Stanford, CA 94305-6010
United States
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