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Philip Howard on Conley and Twombly

Common Good's Philip Howard, who has long bemoaned the refusal of the judicial system to winnow cases at early stages, comments on the Supreme Court's repudiation of Conley:

In Conley, the Supreme Court had instructed judges to almost never dismiss a claim. Cited in an amazing 40,000 decisions over the past 50 years, Conley gave lawyers carte blanche to sue for almost anything: "A complaint should not be dismissed � unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Conley and its progeny changed American culture. With judges unable to dismiss claims, suing for the moon became standard practice. Justice became a weapon for extortion. The effects rippled through daily dealings. [...]

Conley v. Gibson is no longer the law of the land. Justice David Souter, writing for a 7-2 majority in an important antitrust case, Bell Atlantic v. Twombly, held that the "famous observation" in Conley "has earned its retirement."

Overruling a distant decision, now obscured by 50 years of practice, does not go far enough.

Earlier: May 21.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.