Why the motion to dismiss is now unconstitutional

Minnesota Law Review

Volumn 92, Issue 6, 2008, Pages 1851-1890

  Thomas, Suja A ^a,b,c  

^a UNIVERSITY OF CINCINNATI   (United States)

^b NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

^c NORTHWESTERN UNIVERSITY   (United States)

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EID: 41749095048     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (234)

1. FED. R. CIV. P. 12(b))(6) ("[A] party may assert the following defense[] by motion: . . . failure to state a claim upon which relief can be granted . . . .").
2. See 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 557 (3d ed. 2004) ("For many years after the promulgation of the Federal Rules of Civil Procedure the motion to dismiss for failure to state a claim was viewed with disfavor and was rarely granted; in many cases and in many courts, that restrained approach to the use of the motion continues to be the norm.").
3. 127 S. Ct. 1955 (2007); see, e.g., Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (discussing Twombly's new standard); Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007) (same); see also A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 439-60 (2008) (same);
4. Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 VA. L. REV. IN BRIEF 135 (2007), http://virginialawreview.org/inbrief/2007/07/09/dodson.pdf (same).
5. 127 S. Ct. 2499 (2007); see also Geoffrey P. Miller, Pleading After Tellabs (NYU Law and Econ. Research Paper No. 08-16, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121396.
6. See Twombly, 127 S. Ct. at 1965-66, 1969.
7. 355 U.S. 41, 45-46 (1957). The Conley standard was that "a complaint should not be dismissed for failure to state a claim 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." Id.
8. See Tellabs, 127 S. Ct. at 2509-10.
9. See Conley, 355 U.S. at 45-46.
10. Id.
11. See Tellabs, 127 S. Ct. at 2509; Twombly, 127 S. Ct. at 1965.
12. Twombly, 127 S. Ct. at 1974.
13. See Tellabs, 127 S. Ct. at 2509-10.
14. See id. at 2504; Twombly, 127 S. Ct. at 1966-67, 1971 n.12.
15. See Twombly, 127 S. Ct. at 1968-69.
16. See Tellabs, 127 S. Ct. at 2512.
17. Cf. Michael C. Dorf, The Supreme Court Wreaks Havoc in the Lower Federal Courts - Again, FINDLAW, Aug. 13, 2007, http://writ.lp.findlaw.com/dorf/20070813.html (stating that, in less than three months since the decision, courts had cited Twombly "a whopping 457 times").
18. See Tellabs, 127 S. Ct. at 2512 n.9; Twombly, 127 S. Ct. at 1973 n.14.
19. See, e.g., Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J.L. & POL'Y 61 (2008);
20. Brian Thomas Fitzsimmons, The Injustice of Notice & Heightened Pleading Standards for Antitrust Conspiracy Claims: It Is Time to Balance the Scale for Plaintiffs, Defendants, and Society, 39 RUTGERS L.J. (forthcoming 2008);
21. Kendall W. Hannon, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 NOTRE DAME L. REV. (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1091246;
22. Max Huffman, The Necessity of Pleading Elements in Private Antitrust Conspiracy Claims, 10 U. PA. J. BUS. & EMP. L. 627 (2008);
23. Allan Ides, Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice, 243 F.R.D. 604 (2007);
24. David M. Levy & Sandra J. Peart, Adam Smith, Collusion and "Right" at the Supreme Court, 16 SUP. CT. ECON. REV. (forthcoming 2008), available at http://papers.ssrn.com/sol3/papersxfm?abstract_id=1022829; Spencer, supra note 3;
25. Joshua D. Wright, The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond, COMPETITION POL'Y INT'L, Autumn 2007, at 25;
26. Amanda Sue Nichols, Note, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility Standard of Bell Atlantic v. Twombly?, 76 FORDHAM L. REV. 2177 (2008);
27. Keith N. Hylton, When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards (Boston Univ. Sch. of Law Working Paper Series, Law & Econ. Working Paper No. 06-06, 2007), available at http://ssrn.com/abstract_id=897486;
28. Randal C. Picker, 'Twombly', 'Leegin' and the Reshaping of Antitrust (Univ. of Chi. Law & Econ., Olin Working Paper No. 389, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1091498; Dodson, supra note 3; Audio recording: Richard A. Nagareda, Professor, Vanderbilt Univ. Law Sch., Commentary on Bell Atlantic v. Twombly, broadcast on Federalist Society's SCOTUScast (May 25, 2007), http://www.fed-soc.org/publications/pubID.320/pub_detail.asp;
29. cf. Allan Horwich & Sean Siekkinen, Pleading Reform or Unconstitutional Encroachment? An Analysis of the Seventh Amendment Implications of the Private Securities Litigation Reform Act, 35 SEC. REG. L.J. 4 (2007) (discussing the Private Securities Litigation Reform Act (PSLRA) issue before Tellabs was decided).
30. For discussions of pleading standards prior to Twombly and Tellabs, see generally Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749 (1998),
31. and Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433 (1986).
32. U.S. CONST. amend. VII.
33. See, e.g., Galloway v. United States, 319 U.S. 372, 388-92 (1943).
34. See, e.g., Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-47 (1830) (defining the right).
35. See, e.g., Curtis v. Loether, 415 U.S. 189, 192-94 (1974) (finding a right to a jury trial in a Title VIII case); Ross v. Bernhard, 396 U.S. 531, 542 (1970) (finding a right to a jury trial in a shareholder derivative suit).
36. See, e.g., Galloway, 319 U.S. at 390-92.
37. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct., 2499, 2505-06 (2007) (alleging securities fraud violations); Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1962 (2007) (alleging antitrust violations); cf., e.g., In re U.S. Fin. Sec. Litig., 609 F.2d 411, 419-31, 423 n.38 (9th Cir. 1979) (finding a Seventh Amendment right to a jury trial in securities litigation).
38. See Tellabs, 127 S. Ct. at 2512.
39. See 5B WRIGHT & MILLER, supra note 2, § 1357, at 557.
40. See EDWARD J. BRUNET ET AL., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE 2 (3d ed. 2006);
41. Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 STAN. L. REV. 1329, 1332-35 (2005) (discussing empirical evidence showing a decrease in trials and an increase in summary judgment awards);
42. see also Suja A. Thomas, Why Summary Judgment Is Unconstitutional, 93 VA. L. REV. 139, 141 & n.5 (2007) (citing scholars' discussion of the overuse of summary judgment in civil rights cases). While courts, using Federal Rules of Civil Procedure 12(b) and 15(a), may at times dismiss a claim with leave to file an amended claim, the dismissal to which this Article refers is a final dismissal of the claim with prejudice.
43. See FED. R. CIV. P. 41(b) (discussing involuntary dismissal).
44. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986) (discussing the standard for summary judgment); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986) (same); cf. Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. REV. 982, 1073-74 (2003) (discussing the effect of this trilogy on the motion to dismiss).
45. See Celotex, 477 U.S. at 322-25; Anderson, 477 U.S. at 248; Matsushita, 475 U.S. at 585-88.
46. See, e.g., Redish, supra note 27, at 1330. But see Thomas, supra note 27, at 140 n.3 (citing Professor Burbank and Joe Cecil's views doubting the effect of the trilogy on summary judgment).
47. See Thomas, supra note 27, at 141 & n.5 (citing scholarship on this issue); cf. Adam Liptak, Cases Keep Flowing in, but the Jury Pool Is Idle, N.Y. TIMES, Apr. 30, 2007, at A14 (discussing Thomas, Why Summary Judgment Is Unconstitutional, supra note 27, and other matters related to the decline in the civil jury trial).
48. See Thomas, supra note 27, at 140-41 & nn.3-6 (citing law review articles discussing summary judgment); see also John Bronsteen, Against Summary Judgment, 75 GEO. WASH. L. REV. 522 (2007) (discussing the costs of summary judgment to the justice system).
49. U.S. CONST. amend. VII (emphasis added).
50. The Amendment was adopted in 1791. See, e.g., Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435-36 & n.20 (1996); Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996); Galloway v. United States, 319 U.S. 372, 388-92 (1943); Balt. & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935); Dimick v. Schiedt, 293 U.S. 474, 476-77 (1935); Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 497-98 (1931); Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 377 (1913); Thompson v. Utah, 170 U.S. 343, 350 (1898) (stating that common law refers to English common law in 1791); United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812) (No. 16,750) (referring to the English common law as "the grand reservoir of all our jurisprudence"). See generally JAMES OLDHAM, ENGLISH COMMON LAW IN THE AGE OF MANSFIELD (2004) (discussing the role of juries in various types of civil actions);
51. 1 JAMES OLDHAM, THE MANSFIELD MANUSCRIPTS AND THE GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY (1992) (noting the use and role of juries);
52. JAMES OLDHAM, TRIAL BY JURY: THE SEVENTH AMENDMENT AND ANGLO- AMERICAN SPECIAL JURIES 127-52 (2006) [hereinafter OLDHAM, TRIAL BY JURY] (describing the origin of special juries in England);
53. Bernadette Meyler, Towards a Common Law Originalism, 59 STAN. L. REV. 551, 595-600 (2006) (discussing originalism in the Seventh Amendment);
54. James Oldham, The Seventh Amendment Right to Jury Trial: Late-Eighteenth-Century Practice Reconsidered, in HUMAN RIGHTS AND LEGAL HISTORY 225 (Katherine O'Donovan & Gerry R. Rubin eds., 2000).
55. See Slocum, 228 U.S. at 378 ("'[The Seventh Amendment's] aim is not to preserve mere matters of form and procedure but substance of right.'" (quoting Walker v. N.M. & S. Pac. R.R. Co., 165 U.S. 593, 596 (1897))); see also, Colgrove v. Battin, 413 U.S. 149, 157-60 (1973) (deciding the minimum number of jurors acceptable under the right); Galloway, 319 U.S. at 392 ("[T]he Amendment was designed to preserve the basic institution of a jury trial, . . . not the great mass of procedural forms and details . . . .").
56. 28 U.S. (3 Pet.) 433, 447 (1830).
57. Id.
58. See id. at 445.
59. See id. at 448.
60. See id. at 448-49; Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 453-54 & n.3 (1996) (Scalia, J., dissenting) (citing Parsons and stating that an appellate court does not have the power to review the denial of a motion for a new trial).
61. Parsons, 28 U.S. at 448.
62. See, e.g., Galloway v. United States, 319 U.S. 372, 388-95 (1943); Balt. & Carolina Line, Inc. v. Redman, 295 U.S. 654, 656-57 (1935); Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 376-80 (1913).
63. 415 U.S. 189, 190 (1974).
64. Id. at 194. The Court also has set forth a test to determine when a jury trial right exists in a case with both equitable and legal claims: "The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action." Ross v. Bernhard, 396 U.S. 531, 538 (1970). The Court continued, [T]he "legal" nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply. Id. at 538 n.10. In Ross, the Court also discussed the availability of a jury trial despite the class action nature of a derivative suit. Id. at 540-42.
65. Curtis, 415 U.S. at 195-96 (citations omitted); see also OLDHAM, TRIAL BY JURY, supra note 34, at 5-16, 45-79 (discussing the scope of the jury trial right under the Seventh Amendment).
66. See Curtis, 415 U.S. at 193.
67. See id. at 198 & n.15.
68. See id. at 198.
69. See id.
70. Cf. Gonzalez v. Carhart, 127 S. Ct. 1610, 1640 (2007) (Thomas, J., concurring) (noting that questions not raised or briefed in lower courts are not properly before the Court on appellate review); Cutter v. Wilkinson, 544 U.S. 709, 727 n.2 (2005) (Thomas, J., concurring) (stating that the Court correctly declines to consider issues that were not addressed by lower courts).
71. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1962 (2007).
72. See id. at 1964-65.
73. Id. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
74. See id. at 1965.
75. Id. at 1966 (alteration in original) (quoting FED. R. CIV. P. 8(a)(2)).
76. See id. at 1971-73.
77. Cf. id. at 1972-73; id. at 1986 n.11 (Stevens, J., dissenting) (discussing the Court's decision to draw factual inferences in favor of the defendant).
78. Id. at 1966-67, 1971 n.12 (majority opinion). Justice Stevens stated that cost should not influence the Court's analysis of the issue. See id. at 1989 (Stevens, J., dissenting).
79. See id. at 1969 (majority opinion) (referencing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
80. Conley, 355 U.S. at 45-46.
81. See Twombly, 127 S. Ct. at 1968-69.
82. Id. at 1966. See generally Spencer, supra note 3, at 439-60 (describing the pleading standard after Twombly); Dodson, supra note 3, at 136-38 (same); Audio recording: Richard A. Nagareda, supra note 18 (describing the Twombly case). In Erickson v. Pardus, 127 S. Ct. 2197 (2007), also decided in the 2006 Term, the Court considered the district court's dismissal of a pro se plaintiff's complaint that alleged an Eighth Amendment violation for the failure of the prison to treat the plaintiff's hepatitis C condition. The Tenth Circuit affirmed the district court's dismissal, finding the plaintiff's allegations "conclusory." Id. at 2199. The Court reversed the Tenth Circuit's affirmance of the district court's dismissal, and, citing Twombly, emphasized that facts pled should be taken as true. Id. at 2200. The case possibly suggests that Twombly will be limited to antitrust cases. However, the Court's emphasis that courts should apply a less difficult standard to pro se plaintiff's complaints, and that the court could still dismiss the complaint here, shows that Twombly is probably not so limited. See id. at 2200; see also Spencer, supra note 3, at 455-57 (discussing Erickson and its application of the Twombly standard).
83. Twombly, 127 S. Ct. at 1973 n.14.
84. See id. at 1974 (Stevens, J., dissenting).
85. See id. Justice Stevens also stated that even if the standard was plausibility, plausibility would be met here. Id. at 1985.
86. See id. at 1983.
87. See id. at 1977-84.
88. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2505-06 (2007).
89. See id. 2507-09; see also Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 U.S.C). In enacting the PSLRA, Congress sought "to curtail the filing of meritless" class action securities fraud cases due to the concern that companies were being forced to settle such cases to avoid the high costs of litigating them. H.R. REP. NO. 104-369, at 41 (1995) (Conf. Rep.), as reprinted in 1995 U.S.C.C.A.N. 730, 740; see also, e.g., Hillary A. Sale, Heightened Pleading and Discovery Stays: An Analysis of the Effect of the PSLRA's Internal-Information Standard on '33 and '34 Act Claims, 76 WASH. U. L.Q. 537, 540 (1998) ("The primary concern [behind enacting the PSLRA] was that plaintiffs' attorneys were filing frivolous class-action suits which, given the extensive and expensive discovery available, forced companies to settle meritless claims."); id. at 552-61 (discussing reform efforts and legislative history).
90. In addition to the scienter requirement, 15 U.S.C. § 78u-4(b)(2) (2000), Congress imposed a number of other requirements to discourage frivolous claims. Under the PSLRA, a complaint also must "specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed." Id. § 78u-40(b)(1). Professor Sale criticized the new standards in the Reform Act, which contrast with the pre-Reform Act standards to dismiss a complaint: "The Reform Act, aimed at abusive securities litigation, both prohibits . . . discovery [of internal company information] and heightens the pleading standard necessary to survive a motion to dismiss. By combining these reforms, the Reform Act implements a standard that is outcome determinative and, if strictly applied, virtually impossible to meet." Sale, supra note 69, at 538; see also id. at 579-83 (advocating, among other things, that Congress repeal stay-of-discovery provisions and that the courts could permit limited discovery); Elliott J. Weiss & Janet E. Moser, Enter Yossarian: How to Resolve the Procedural Catch-22 That the Private Securities Litigation Reform Act Creates, 76 WASH. U. L.Q. 457, 458-60 (1998) (describing provisions that make it more difficult for the plaintiff to proceed with a securities fraud claim, including heightened pleading requirements and discovery-stay provisions).
91. 15 U.S.C. § 78u-4(b)(2). Courts had proposed several different standards to satisfy the requirement that a complainant must plead "a strong inference" of scienter. Makor Issues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588, 601 (7th Cir. 2006) (explaining the approaches of the various circuits), rev'd, 127 S. Ct. 2499 (2007); In re Credit Suisse First Boston Corp., 431 F.3d 36, 49 (1st Cir. 2005); Ottmann v. Hanger Orthopedic Group, Inc., 353 F.3d 338, 348-49 (4th Cir. 2003); Pirraglia v. Novell, Inc., 339 F.3d 1182, 1188-89 (10th Cir. 2003); In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 224 (3d Cir. 2002); Gompper v. VISX, Inc., 298 F.3d 893, 897 (9th Cir. 2002); Fla State Bd. of Admin. v. Green Tree Fin. Corp., 270 F.3d 645, 660 (8th Cir. 2001); Helwig v. Vencor, Inc., 251 F.3d 540, 553 (6th Cir. 2001).
92. Tellabs, 437 F.3d at 602.
93. See id. at 601-02 (discussing Fidel v. Farley, 392 F.3d 220, 227 (6th Cir. 2004)). The Sixth Circuit stated that, in deciding this question of whether a strong inference has been pled, "'plaintiffs are entitled only to the most plausible of competing inferences'" from the facts that have been pled, but the inferences need not be "'irrefutable.'" Fidel, 392 F.3d at 227 (quoting Helwig, 251 F.3d at 553). The Sixth Circuit recognized a possible Seventh Amendment problem with the standard that it proposed. See City of Monroe Employees Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 682 n.25 (6th Cir. 2005).
94. Tellabs, 127 S. Ct. at 2504.
95. Id. at 2504.
96. Id. at 2511.
97. See id. at 2511-13.
98. Id. at 2512; see also Jones v. Bock, 127 S. Ct. 910, 926 (2007) (explaining that the legislature, and not the courts, should "adopt[] different and more onerous pleading rules").
99. Tellabs, 127 S. Ct. at 2512 n.8; see also infra note 104 (analyzing cases cited by Court).
100. See Tellabs, 127 S. Ct. at 2513.
101. 187 U.S. 315 (1902).
102. See Tellabs, 127 S. Ct. at 2512-13.
103. Id. at 2512 (alteration in original) (quoting Fidelity, 187 U.S. at 318).
104. Id. at 2512 (alteration in original) (quoting Fidelity, 187 U.S. at 320).
105. See id. at 2510 n.5.
106. Id. at 2513, 2514 (Scalia, J., concurring) (arguing that his interpretation does not rely on legislative history, like the Court's does, but instead relies on text, and arguing that Congress has extended "the ordinary rule under which a tie goes to the defendant" "to the pleading stage of a case").
107. See id. at 2516 (Alito, J., concurring).
108. See id. at 2514 (Scalia, J., concurring); id. at 2516 (Alito, J., concurring).
109. See id. at 2510 n.5 (majority opinion). Interestingly, in Twombly the Court made a comparison to the summary judgment standard in its decision that the plaintiffs had not pled enough. "[A]t the summary judgment stage a § 1 plaintiff's offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
110. See Tellabs, 127 S. Ct. at 2513. The Seventh Circuit subsequently remanded the case to the district court. Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702, 712 (7th Cir. 2008).
111. See Tellabs, 127 S. Ct. at 2516-17 (Stevens, J., dissenting).
112. Id. at 2517.
113. Id.
114. Id.
115. See id. at 2517-18. Blackstone stated that formerly a plaintiff had to show probable cause for his charge before a defendant was required to answer, but that this requirement was eliminated. WILLIAM BLACKSTONE, 3 COMMENTARIES *295 (Univ. Chi. Press 1979) (1768).
116. See supra text accompanying notes 54-62.
117. See supra text accompanying note 63.
118. See supra text accompanying note 78.
119. See Tellabs, 127 S. Ct. at 2504, 2512.
120. See supra text accompanying note 80. The Court missed that the jury decides certain questions. The standard that the jury applies is irrelevant to the proper standard for the court to apply. See infra Part II.A.
121. See Tellabs, 127 S. Ct. at 2512 n.9.
122. Such heightened pleading has not been adopted for antitrust cases thus far though. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (requiring antitrust plaintiffs to plead "only enough facts to state a claim to relief that is plausible on its face").
123. See supra text accompanying notes 44-45.
124. In a Tellabs footnote, without further explanation, the Court cited previous jurisprudence in which judicial control had been upheld: "In numerous contexts, gatekeeping judicial determinations prevent submission of claims to a jury's judgment without violating the Seventh Amendment." Tellabs, 127 S. Ct. at 2512 n.8. The Court cited three cases as examples. Id. In the first case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Court set forth the test that governed the admissibility of scientific expert evidence under Federal Rule of Evidence 702. It is somewhat puzzling why the Court cited Daubert. Daubert was a purely rule-based decision without any mention or analysis of its compatibility with the Constitution, including the Seventh Amendment and the common law. Also, the possible exclusion of evidence for the consideration of the jury, the issue in Daubert, contrasts with the complete elimination of the jury trial in Tellabs. In the next case cited by the Court, Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 321-22 (1967), the Court decided that an appellate court can order dismissal of a case after it has reversed the trial court's denial of judgment notwithstanding the verdict. The Court cited its previous decision that judgment notwithstanding the verdict does not violate the Seventh Amendment. See id. at 321 (citing Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940)). I have previously made distinctions between a court's involvement after a jury has tried a case under judgment notwithstanding the verdict and a court's elimination of the jury trial completely under summary judgment. See Thomas, supra note 27, at 166-77. A similar argument applies to the motion to dismiss. I have also stated that the Court's jurisprudence on judgment as a matter of law and the directed verdict incorrectly analyzed the common law. See id. In the final case cited by the Court, Pease v. Rathbun-Jones Engineering Co., 243 U.S. 273, 278 (1917), which the Court stated stood for the constitutionality of summary judgment, the Court decided that "[t]he constitutional right of trial by jury presents no obstacle to this method of proceeding, since by becoming a surety the party submits himself 'to be governed by the fixed rules which regulate the practice of the court,'" id. (quoting Hiriart v. Ballon, 34 U.S. (9 Pet.) 156, 167 (1835)). The Court in Tellabs stated that Pease stood for the constitutionality of summary judgment. Tellabs, 127 S. Ct. 2512 n.8. However, the facts at hand in Pease are irrelevant to the facts in Tellabs. Moreover, I have previously shown the constitutional infirmity of summary judgment under the governing common law. See Thomas, supra note 27. The Court also cited cases that do not discuss the Seventh Amendment at all to attempt to support its Seventh Amendment theory that Congress can "establish[] whatever pleading requirements it finds appropriate for federal statutory claims." Tellabs, 127 S. Ct. at 2512. Additionally, the Court cites Walker v. New Mexico & Southern Pacific Railroad Co., 165 U.S. 593 (1897), for the proposition that the "Seventh Amendment 'does not attempt to regulate matters of pleading,'" id. at 2512-13 (quoting Walker, 165 U.S. at 596). The Court, however, does not quote the adjacent words in the decision that require the "substance" of the "common law" right to be preserved. See Walker, 165 U.S. at 596.
125. See U.S. CONST. amend. VII ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . .").
126. See id. ("[N]o fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.").
127. See supra text accompanying notes 36-49.
128. Suja A. Thomas, Judicial Modesty and the Jury, 76 U. COLO. L. REV. 767 (2005).
129. Id. For discussions of jury decision making, see generally CASS R. SUNSTEIN ET AL., PUNITIVE DAMAGES: HOW JURIES DECIDE (2002) (exploring the question of why juries make certain decisions in punitive damages cases);
130. Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 CORNELL L. REV. 325 (1995) (analyzing the history of jury power and authority in the United States);
131. Deborah R. Hensler, Jurors in the Material World: Putting Tort Verdicts in Their Social Context, 13 ROGER WILLIAMS U. L. REV. (forthcoming 2008) (discussing the possible influence of "social inflation" on jury verdicts);
132. Catherine M. Sharkey, Punitive Damages: Should Juries Decide?, 82 TEX. L. REV. 381 (2003) (reviewing SUNSTEIN ET AL., supra);
133. Neil Vidmar, Experimental Simulations and Tort Reform: Avoidance, Error and Overreaching in Sunstein et al.'s Punitive Damages, 53 EMORY L.J. 1359 (2004) (same).
134. See supra text accompanying notes 34-49.
135. See Cunningham v. California, 127 S. Ct. 856, 863-64 (2007) (mentioning common law roots of Sixth Amendment jurisprudence); Jones v. United States, 526 U.S. 227, 244-48 (1999) (discussing common law bases of criminal jury trials and the roles of judge and jury as respectively law and fact finders); Thomas, supra note 27, at 169 (citing other Supreme Court cases); cf. Thomas, supra note 108, at 794-97 (arguing that the Court has granted more power under the Sixth Amendment to juries in criminal cases than it has under the Seventh Amendment to juries in civil cases). The Court stated that the issue in England in the late eighteenth century was not if the jury was the fact finder, but rather if the jury should also have played the role of the law finder. See Jones, 526 U.S. at 246-47 & n.8.
136. See Thomas, supra note 27, at 150 n.39.
137. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
138. 187 U.S. 315 (1902). While often cited for the proposition that summary judgment is constitutional under the Seventh Amendment, Fidelity best supports the constitutionality of the old motion to dismiss under Conley. See Thomas, supra note 27, at 164-66.
139. Fidelity, 187 U.S. at 316.
140. Id. at 318-19.
141. See id. at 316-17.
142. See id. at 317.
143. See id. at 318, 322.
144. Id. at 320.
145. See id. at 317-18, 322.
146. See Thomas, supra note 27, at 147-48.
147. Id.
148. See supra note 35 and accompanying text.
149. Thomas, supra note 27, at 147-48.
150. Id. at 147.
151. Id. at 148.
152. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
153. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999) (citing Summitt Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991)).
154. Conley, 355 U.S. at 45-46; see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) ("A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.").
155. See note 54-55 and accompanying text.
156. See supra notes 57, 77 and accompanying text.
157. Conley, 355 U.S. at 45-46.
158. See 3 BLACKSTONE, supra note 95, at *314. If there was a jury verdict, the defendant might attempt to move for an arrest of judgment, stating that a demurrer would have been successful because of a problem with the declaration. Even if a demurrer would have overturned the action, the verdict could possibly cure the "inaccuracies and omissions" of the declaration. See Suja A. Thomas, The Seventh Amendment, Modern Procedure, and the English Common Law, 82 WASH. U. L.Q. 687, 738-40 & n.317 (2004). This is another illustration of the importance of the jury at common law.
159. See 3 BLACKSTONE, supra note 95, at *314; see also Thomas, supra note 134, at 706-07 (describing this procedure). The Advisory Committee's Notes to the Federal Rules of Civil Procedure state, "Rule 12(b)(6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action." FED. R. CIV. P. 12(b)(6) advisory committee's notes to the 1948 amendments.
160. 3 BLACKSTONE, supra note 95, at *314.
161. Id.
162. Id. at *323-24.
163. See id.
164. See supra notes 57, 77 and accompanying text.
165. See FRANCIS BULLER, AN INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT NISI PRIUS 307 (London, W. Strahan & M. Woodfall 1772).
166. See Cocksedge v. Fanshaw, (1779) 99 Eng. Rep. 80, 88 (K.B.); see also Gibson v. Hunter, (1793) 126 Eng. Rep. 499, 510 (H.L.) (stating that the defendant must admit "every fact, and every conclusion, which the evidence given for the Plaintiff conduced to prove").
167. Cocksedge, 99 Eng. Rep. at 88.
168. See BULLER, supra note 141.
169. See Cocksedge, 99 Eng. Rep. at 88.
170. See Gibson, 126 Eng. Rep. at 510.
171. Cf. id. Lord Chief Justice Eyre, writing for the Lords, concluded that "after this explanation of the doctrine of demurrers to evidence, I have very confident expectations that a demurrer like the present will never hereafter find its way into this House." Id. "[The] proceeding, which is called a demurrer to evidence, and which though not familiar in practice, is a proceeding well known to the law." Id. at 508. For a more extensive description of this procedure, including case descriptions, see Thomas, supra note 134, at 709-15. Professor Baker describes the demurrer to the evidence as "in effect that the parties agreed on the facts as disclosed by the evidence at the trial, and had them entered on the record in Latin, discharging the jury and leaving the decision to the court." J. H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 83 (4th ed. 2002).
172. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
173. In contrast to the motion to dismiss, however, under the common law demurrer, the demurring party could lose, as once it had admitted the facts and conclusions of the evidence and there was a claim or defense under those facts and conclusions, the other party was entitled to judgment. See supra text accompanying note 145.
174. See supra notes 55, 77 and accompanying text.
175. See supra text accompanying notes 142-43.
176. See supra notes 134-39, 141-45 and accompanying text.
177. See supra Part I.A.
178. See Thomas, supra note 27, at 147-48; see also supra text accompanying note 127.
179. See supra Parts I.B.1-2.
180. See supra Parts II.B.1-2.
181. In the present day, there may be an attempt to characterize a court's decision on the motion to dismiss as a legal question. This is a simplistic characterization that has no significance under the common law. Reference to the common law as described here is the appropriate inquiry, and again that "common law" in the Seventh Amendment refers to the English common law in 1791, not the common law at any of the various points in the nineteenth or twentieth centuries. See supra note 34 and accompanying text; see also Thomas, supra note 27, at 146 & n.25, 147, 160-63.
182. See supra notes 36-49 and accompanying text. Moreover, statutory antitrust claims can be compared to common claims of contracts restraining competition. See, e.g., United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1898), aff'd as modified, 175 U.S. 211 (1899).
183. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968-69 (2007).
184. Id. at 1964.
185. See id. at 1972. Moreover, even without discovery, what the CEO meant in his statements could have been established through cross-examination of the CEO. Id. at 1986-87 (Stevens, J., dissenting).
186. See supra Part II.B.1-2.
187. See supra Part II.B.1-2. Additionally, although the Court states that the test it established did not require probability, Twombly, 127 S. Ct. at 1965, there was no such difference between plausibility and probability under the common law. See supra Part II.B.2.
188. See supra notes 36-49 and accompanying text. Moreover, the statutory claim here can be compared to common law fraud. See infra note 176 and accompanying text.
189. See supra Part II.B.1.
190. See supra Part II.A-B.
191. Gibson v. Hunter, (1793) 126 Eng. Rep. 499 (H.L.).
192. See Thomas, supra note 134, at 710-12 (discussing Gibson, 126 Eng. Rep. at 499-506).
193. See Gibson, 126 Eng. Rep. at 499.
194. See id.
195. See id. at 509-10.
196. See id. at 499-506.
197. See id. at 509-10.
198. See id. at 510.
199. See id.
200. See id.; Thomas, supra note 134, at 712. The procedure of the demurrer to the evidence that the defendant attempted to employ is discussed above. See supra Part II.B.2. One could argue that if there were special requirements - as under the PSLRA - to litigate fraud cases under the English common law, then the requirements imposed by Congress and the courts might be constitutionally permissible. I have found no indication that eighteenth-century English courts required a plaintiff to plead fraud or scienter with particularity, or required a special level of proof of scienter (e.g., a strong inference). To the contrary, as indicated by the Gibson case, it was very difficult for a case to be dismissed prior to a jury trial, including a case alleging fraud. The notes of the Advisory Committee on the Federal Rules of
201. see also Christopher M. Fairman, An Invitation to the Rulemakers - Strike Rule 9(b), 38 U.C. DAVIS L. REV. 281, 283-87 (2004) (discussing nineteenth century treatises and stating that "[w]hen these treatises consider fraud pleading in the legal context, as opposed to the equitable context, there is no mention of the particularity requirement").
202. In England, "the essence of a cause of action for fraud was . . . that a seller had knowingly made a false affirmation at the time of sale." WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 195 n.68 (1975) (citing a nineteenth century treatise).
203. See supra Part II.A-B.
204. See supra Part II.A-B. Apart from the argument that a jury would decide these types of claims is the argument that a complexity exception to the Seventh Amendment exists. See, e.g., OLDHAM, TRIAL BY JURY, supra note 34, at 17-24;
205. Laura G. Dooley, National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation, 83 N.Y.U. L. REV. (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1013666 (citing scholarship on the complexity exception issue and also arguing that a national jury for national cases is constitutional under the Seventh Amendment).
206. See supra Part II.B.
207. Seeing virtue in only the substance of the common law and not the form of the common law, I do not propose that to be constitutional a case should be dismissed in favor of the nonmoving party when the moving party loses the motion to dismiss.
208. Gibson v. Hunter, (1793) 126 Eng. Rep. 499, 510 (H.L.).
209. See Thomas, supra note 134, at 712-15 (discussing Cocksedge v. Fanshaw, (1779) 99 Eng. Rep. 80, 88 (K.B.)).
210. See 15 U.S.C. § 78u-4(b)(2) (requiring a "strong inference" of scienter); see also supra note 71 and accompanying text.
211. See supra note 176.
212. See supra Parts I.A, II.C (discussing the constitutional test for adding requirements to the Seventh Amendment right). Rule 9(b) also could be constitutionally problematic under this analysis. Furthermore, this analysis would dictate that, under the Seventh Amendment, Congress cannot properly add pleading requirements to its statutes for cases in which a legal right and remedy are available.
213. Professor Baker states that the "difference of form [of writs] seems to represent no more than an accident of history." BAKER, supra note 147, at 63; see also Progress of Law Reform, WESTMINSTER REV., July-Oct. 1833, at 42, 66 (describing lawyers as "mere technical hacks").
214. Professor Baker states that "[t]he expression 'special pleading' eventually passed into the layman's vocabulary as a synonym for the deployment of technicalities to perplex an adversary." BAKER, supra note 147, at 89. Professor Sunderland referred to the "technical refinements which obstructed justice." Edson R. Sunderland, The English Struggle for Procedural Reform, 39 HARV. L. REV. 725, 728 (1926).
215. "The striking characteristic of the British revolt against the apotheosis of legal formalism was its popular origin and support." Sunderland, supra note 187, at 729; see also Law Abuses - Pleading, Practice -, WESTMINSTER REV., May-July 1826, at 39, 39-40 (describing lawyers on both sides as simply seeking fees).
216. The defendant could enter a plea referred to as a dilatory plea, under which the defendant stated the writ was defective. 3 BLACKSTONE, supra note 95, at *301-02. However, the defendant was required to tell the plaintiff how to correct the defect. Id. at *302. Blackstone wrote that "[s]ometimes demurrers are merely for want of sufficient form in the writ or declaration" and there, the demurring party must "set forth the causes of his demurrer, or wherein he apprehends the deficiency to consist." Id. at *315; see also Law Abuses - Pleading, Practice -, supra note 188, at 46-48 (stating that demurrers were mostly for want of form).
217. For an illustration, see GEORGE HAYES, CROGATE'S CASE: A DIALOGUE IN YE SHADES ON SPECIAL PLEADING REFORM (1853),
218. reprinted in 9 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW app. 1, at 417 (Methuen 1926) (1903).
219. See 3 BLACKSTONE, supra note 95, at *270-313.
220. See supra notes 36-49 and accompanying text. In the Introduction to the reprint of 3 Blackstone's Commentaries, John Langbein, citing the Seventh Amendment, remarked that "in the United States, where the Bill of Rights has constitutionalized the English law/equity division of the late eighteenth century, Blackstone's taxonomy of departed courts and procedures still has an eerie relevance." John H. Langbein, Introduction to Book III of 3 BLACKSTONE, supra note 95, at iv. Langbein also wrote that "[i]n Blackstone's day trial by jury was still the typical means of resolving disputed issues of fact in civil litigation." Id. at vii. "[H]e cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals." 3 BLACKSTONE, supra note 95, at *379.
221. See supra note 36-49; see also Tull v. United States, 481 U.S. 412, 417-25 (1987) (reviewing the English common law regarding the legal right and remedy involved in the case based on a congressional statute and holding a right to a jury trial attached as to liability). But see Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355 (1998) (citing Tull regarding the requirement of a jury finding of liability and questioning the finding in Tull that the jury need not determine the civil penalty); OLDHAM, TRIAL BY JURY, supra note 34, at 66-73 (describing the inconsistency of Tull with other Supreme Court cases and the English common law). There are other examples in which a greater power of a constitutional actor was determined to be constitutional while a lesser power was unconstitutional. See, e.g., Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002) ("'[G]reater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance.'" (quoting Renne v. Geary, 501 U.S. 312, 249 (1991))). There is also the possible argument that "common law" in the first clause of the Seventh Amendment does not include statutory actions despite the Supreme Court case law. Colleen Murphy proposed that to make the jurisprudence consistent and workable, the Supreme Court should change its jurisprudence to require a jury trial in statutory rights cases only where a "statutory action merely codifies a constitutional or state law right . . . . known at common law . . . ." See Colleen P. Murphy, Note, Article III Implications for the Applicability of the Seventh Amendment to Federal Statutory Actions, 95 YALE L.J. 1459, 1473 (1986) (footnote omitted).
222. But see Ellen E. Sward, Legislative Courts, Article III, and the Seventh Amendment, 77 N.C. L. REV. 1037, 1112-13 (1999) ("[I]f the framers saw the right to a jury trial as an independent check on Congress's powers, as I have suggested, they could hardly have approved of Congress's creating new rights and depriving citizens of the right to jury trial as to those rights.").
223. See, e.g., Hudson v. Michigan, 126 S. Ct. 2159, 2162 (2006) (Fourth Amendment); Deck v. Missouri, 544 U.S. 622, 626-28 (2005) (due process); Roper v. Simmons, 543 U.S. 551, 626 (2005) (O'Connor, J., dissenting) ("It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought."); U.S. v. Booker, 543 U.S. 220, 238-39 (2005) (Sixth Amendment); Rasul v. Bush, 542 U.S. 466, 473-74, 481-82 & nn.12-14 (2004) (habeas corpus).
224. See Thomas, supra note 27, at 180 n.169 (citing Sixth Amendment cases).
225. See Thomas, supra note 108, at 804-10. Blackstone wrote of the importance of the jury: [I]f [the impartial administration of justice] be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interests and good of the many. 3 BLACKSTONE, supra note 95, at *379. He wrote that the principles and axioms of law . . . not accommodated to times or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope: the law is well known, and is the same for all ranks and degrees . . . in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here, therefore, a competent number of sensible and upright jurymen; chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. . . . Every new tribunal, erected for the decision of facts, without the intervention of a jury . . . is a step towards establishing aristocracy, the most oppressive of absolute governments. Id. at *379-80.
226. See generally Thomas, supra note 108.
227. See, e.g., Spencer, supra note 3, at 457-60 (discussing implications beyond antitrust cases).
228. However, under Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167-68 (1993), courts could not impose their own such heightened standards of pleading. See also Hill v. McDonough, 126 S. Ct. 2096, 2103 (2006) ("Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, case-by-case determinations of the federal courts."); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (stating that no heightened pleading is required for employment discrimination claims); Miller, supra note 28, at 1003-16 (discussing trends in civil procedure imposing additional requirements for a case to reach trial). Special pleading has been argued to already apply in other types of cases. See, e.g., Christopher M. Fairman, Heightened Pleading, 81 TEX. L. REV. 551 (2002);
229. Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987 (2003) (discussing that particularized fact pleading is required in many areas of the law).
230. See, e.g., EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 784 (7th Cir. 2007) (Flaum, J., concurring) (arguing that under Twombly a plaintiff in an employment discrimination case must "plead enough facts to demonstrate a plausible claim"); cf. Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007).
231. Noyer v. Viacom, Inc., 22 F. Supp. 2d 301, 302 (S.D.N.Y. 1998) ("Employment discrimination cases now compose a material portion of the federal docket."); Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 429, 429 (2004) ("Employment discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent.").
232. See, e.g., Thomas, supra note 27, at 141 n.5; Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation (Brooklyn Law School Legal Studies, Research Paper No. 71, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=968834;
233. cf. Kevin M. Clermont et al., How Employment-Discrimination Plaintiffs Fare in the Federal Courts of Appeals, 7 EMP. RTS. & EMP. POL'Y J. 547, 554 (2003) ("The critical point here is that the data show defendants succeeding more than plaintiffs on appeal, and much more so in employment discrimination cases.").
234. Cf. Thomas, supra note 27, at 141 n.4 (discussing the disappearing jury trial).