E. Donald Elliott, Twombly in Context: Why Federal Rule of Civil Procedure 4(B) Is Unconstitutional

64 Fla. L. Rev. 895 |

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest.

The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a summons ordering someone to come to court to answer charges. It is argued that unless courts routinely award full economic costs after the fact to make someone whole who has been sued wrongfully, they must satisfy themselves in advance that there is a reasonable basis for suit before ordering the persons sued to appear and answer.

Rule 4(b) is argued to be unconstitutional as (1) a seizure of the person and property of the defendant without any attempt by the state to verify that it is reasonable to do so; (2) an unconstitutional deprivation of property without due process of law; (3) an unconstitutional delegation of state power to issue a court order to a private party with a financial interest, and (4) an unconstitutional repeal of a statute providing for judicial control over process without following constitutionally required procedures.

The policy issues are even clearer than the constitutional ones. The current practice of delegating government power to private parties with an interest in the outcome who do not pay the full social costs of their speculation creates incentives to over-supply litigation and to file strike suits. The Supreme Court decisions in Iqbal and Twombly correctly identified this problem, but they misdiagnosed it as lying in Rule 8 relating to general rules of pleading, rather than Rule 4 relating to the “right” of anyone to compel anyone to come to court about anything without any prior review by the court. A possible solution, the “Pre-Service Plausibility Determination,” is suggested based on the system of preliminary review before service that is followed in many other areas of domestic law as well as some other countries.

The issue of “reasonable but speculative” claims is also considered, and it is argued that the decision to allow such claims should not be delegated to plaintiff’s lawyers, but 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 economically if the case is successful.

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