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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Jan. 2013, Vol. 65, No. 1
David Haddock, Tonja Jacobi, & Matthew Sag, League Structure &Stadium Rent Seeking— the Role of Antitrust Revisited
Sergio J. Campos, Erie as a Choice of Enforcement Defaults
Hanah Metchis Volokh, Constitutional Authority Statements in Congress
Sapna Kumar, The Accidental Agency?
Christian Turner, State Action Problems