ABSTRACT :: The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that Twombly was not revolutionary, but simply part of the Court’s ever-expanding application of the familiar three-factor Mathews v. Eldridge test, used to determine whether procedural due process requires adopting a procedural safeguard. Twombly recognized that misused discovery can deprive litigants of property and liberty interests, and, thus, consistent with Mathews, requires a safeguard-dismissing the complaint. Based on this conclusion, this Article explains Twombly’s origins and structure, and suggests a source from which lower courts may draw in developing post-Twombly jurisprudence.
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December 2013, Vol. 65, No. 6
Adam Mossoff, The Trespass Fallacy in Patent Law
Alan White & Carolina Reid (Essay), Saving Homes? Bankruptcies and Loan Modifications in the Foreclosure Crisis
Lee Harris, CEO Retention
Jennifer Koh, Rethinking Removability
Katrina Wyman & Nicolas Williams, Migrating Boundaries