May 25, 2007

Chicago's Randy Picker makes a good point: balancing pleading requirements to reflect the unfairness and expense of discovery ignores the Supreme Court's role in those discovery rules.

The majority opinion makes no effort to explain how we as a society should confront this core one-sidedness of information. This is hardly just an antitrust problem. We will constantly confront information that is systematically more available to one side more than the other, and we will see that in cases across the board, including the discrimination cases that receive some attention in today’s opinions. The whole point of the federal rules of civil procedure—rules controlled by the Supreme Court—is to figure out exactly how to manage that one-sidedness.

The critical question isn’t how to frame the answer, the problem posed by footnote 10, but rather how to frame discovery, and more generally, how to manage the one-sidedness of information. It is the fear of discovery run amok that drives the majority opinion—see the extensive quotation in footnote 6 of the majority opinion of a 1989 article by Judge Frank Easterbrook—and yet the Court offers no guidance as to how matters might be improved.

Under the Rules Enabling Act, the rules of civil procedure are squarely in the Supreme Court’s hands. If the current discovery rules don’t work—in antitrust cases or other cases—the Court should fix them. This is a problem of institutional design entrusted to the Court by Congress. The opinion in Twombly acts as if the discovery rules come from Mars rather than the Supreme Court itself.