Eugene Volokh Discusses Andrew Blair-Stanek’s Article Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery on The Volokh Conspiracy

Read Professor Volokh’s commentary on the article’s “enlightening” title at The Volokh Conspiracy.

62 Fla. L. Rev. 1 (2010) |   |   |   |

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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