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


Richard A. Epstein


New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School

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.

Number of Pages in PDF File: 33

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

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Date posted: April 29, 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 or http://dx.doi.org/10.2139/ssrn.1126359

Contact Information

Richard A. Epstein (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012
United States
(212) 992-8858 (Phone)
(212) 995-4894 (Fax)
Stanford University - Hoover Institution on War, Revolution and Peace
Stanford, CA 94305-6010
United States
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9563 (Phone)
773-702-0730 (Fax)
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