Twombly in Context: Or Why Federal Rule of Civil Procedure 4(b) Is Unconstitutional

Engage Volume 12, Issue 3, November 2011
By E. Donald Elliott
January 11, 2012

Twombly in Context: Or Why Federal Rule of Civil Procedure 4(b) Is UnconstitutionalNote from the Editor:

In December 2010, the Federalist Society heard from a number of federal judges and civil procedure experts about amendments to the Federal Rules of Civil Procedure, including the process that would be undertaken to amend the rules and some proposed amendments that might be offered. Based on the comments and perspectives received, the Federalist Society determined that it could add value to the broader discussion over amending the rules by asking experts to flag issues or perceived problems with the rules as they currently exist, and to identify the range of solutions that are being offered to address these problems. This back-and-forth culminated in four papers, one of which follows. A version of these papers will appear in the Florida Law Review, and they are published here with permission.

Viewed from the standpoint of strategic incentives, Rule 4(b) is the foundation of the Federal Rules of Civil Procedure: the state compels someone to appear in court and expend resources to move or answer without regard to the merit of the claims brought. Rule 4(b) is probably unconstitutional, but it is certainly bad policy and creates a distorted incentive structure. Twombly is a well-intentioned but misdirected attempt to fix this fundamental problem in the incentives created by the Federal Rules of Civil Procedure, but it focuses in the wrong place. The problem is created pre-service, and that is where it should be fixed...