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"Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery"

A creative insight from Andrew Blair-Stanek in the Florida Law Review (via Volokh):

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. Misused discovery can deprive litigants of property and liberty interests, and in some cases Mathews requires the safeguard of dismissing the complaint. This Article's insight explains Twombly's origins and structure, while also suggesting a source for lower courts to draw on in developing post-Twombly jurisprudence.

An interesting implication is that loosened pleading standards are not permissible without loser-pays.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.