Twombly in Context: Why Federal Rule of Civil Procedure 4(b) is Unconstitutional

E. Donald Elliott

Yale Law School

December 14, 2010

64 FLA. L. REV. 895 (2012).

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer charges in court without any preliminary state review or screen for reasonableness. This is argued to be unconstitutional as a unreasonable seizure, a deprivation of private property without due process and an standard-less delegation to state power to a private party. The history is also reviewed and it is argued that from the Founding until 1938, federal courts reviewed complaints prior to service. It is argued that unless courts routinely award costs after the fact, they must satisfy themselves in advance that there is a reasonable basis for suit before ordering the persons sued to appear and answer. The policy issues are even clearer than the constitutional ones, as the current practice of delegating government power to private parties with an interest in the outcome creates incentives to over-supply litigation and to file strike suits. The Supreme Court decisions in Iqbal and Twombly correctly identified a problem, but they misdiagnosed the problem as lying in Rule 8 relating to general rules of pleading, rather than Rule 4. A possible solution is suggested based on the system of preliminary review before service which is followed in many other countries, as well as other areas of domestic law. The issue of "reasonable but speculative" claims is considered, and it is argued that the decision to allow such claims should not be delegated to plaintiff's lawyers, but discretionary discovery to find missing link evidence should be allowed on a discretionary basis under Rule 27 at the expense of the plaintiff's lawyer, who will benefit if the case is successful.

Number of Pages in PDF File: 70

Keywords: Iqbal, Twombly, Summons, Civil Procedure, Costs of Litigation, Discovery, Pleading, Constitutional Law, Seizure, Due Process, Delegation to Private Parties

JEL Classification: K40, K41

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Date posted: November 19, 2010 ; Last revised: October 4, 2012

Suggested Citation

Elliott, E. Donald, Twombly in Context: Why Federal Rule of Civil Procedure 4(b) is Unconstitutional (December 14, 2010). 64 FLA. L. REV. 895 (2012).. Available at SSRN: http://ssrn.com/abstract=1711229

Contact Information

E. Donald Elliott (Contact Author)
Yale Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
202 256-4149 (Phone)

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