Twombly, The Federal Rules of Civil Procedure and the Courts

Authors

Edward D. Cavanagh

Publication Date

2008

Document Type

Symposium

Abstract

(Excerpt)

This Article analyzes the rationale for the Twombly holding and concludes that: (1) the Court's assertion that judges cannot effectively control litigation costs because the parties-not the courts-control claims and defenses as well as the nature and amount of discovery in any given case is contrary to fact; and (2) certain classes of cases may well warrant particularized pleading but that decision should be made by the rulemakers through amendments to the Federal Rules of Civil Procedure and not by judges on an ad hoc basis.