A Tale of Two Panels: The Size of the Chancellor's Foot in Text Messaging and Potash

Competition Policy International Antitrust Chronicle, No. 1, November 2011

Cleveland-Marshall Legal Studies Paper No. 11-236

8 Pages Posted: 30 Nov 2011

See all articles by Chris Sagers

Chris Sagers

Cleveland-Marshall College of Law, Cleveland State University

Date Written: November 17, 2011

Abstract

Two panel opinions of the Seventh Circuit reached opposite conclusions in two massive antitrust cases during the past year, even though they purported to apply the same, now-infamous Twombly-Iqbal pleading standard, and even though the complaints in the two cases were very similar and the decisions were on the identical procedural posture. The contrast shows just how fully chaotic the Twombly-Iqbal rule is, and how great the systemic consequences are for our larger society. Both cases involved allegations of consumer harm into the many billions of dollars, but whether the challenged conduct would be subjected to the rule of law was made to depend on the subjective and apparently unrestrained personal impulses of the two federal judges that it takes to make a panel majority. As Adolph Berle once put it, the courts in these cases now apply only words, and not rules.

Keywords: Twombly, Iqbal, Twiqbal, Potash, Text Messaging, Pleading, Conspiracy, Antitrust, Price Fixing, Oligopoly, Plus-Factors, Posner, Dispositive Motions, Motions to Dismiss

JEL Classification: A12, D21, D43, K0, K2, K20, K21, L1, L13, L4, L41, Y8

Suggested Citation

Sagers, Chris, A Tale of Two Panels: The Size of the Chancellor's Foot in Text Messaging and Potash (November 17, 2011). Competition Policy International Antitrust Chronicle, No. 1, November 2011; Cleveland-Marshall Legal Studies Paper No. 11-236. Available at SSRN: https://ssrn.com/abstract=1961237

Chris Sagers (Contact Author)

Cleveland-Marshall College of Law, Cleveland State University ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

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