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

70 Pages Posted: 19 Nov 2010 Last revised: 4 Oct 2012

See all articles by E. Donald Elliott

E. Donald Elliott

Yale University - Law School; Antonin Scalia Law School

Date Written: December 14, 2010


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.

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

JEL Classification: K40, K41

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:

E. Donald Elliott (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
202 256-4149 (Phone)

Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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