Pleading Standards Should Not Change After Bell Atlantic v. Twombly

By Keith Bradley[*]

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Bell Atlantic v. Twombly was an antitrust case.  This description would have seemed obvious to the parties, their counsel, and all the courts considering the case, including the Supreme Court that ultimately decided it this May.  Alas, however, Justice Stevens, in dissent, portrayed Twombly as a sweeping revision of the standards for civil pleadings and dismissals in general.[1]  Six months later, his view seems to have prevailed[2] and language like the following is now common:  “[Twombly] clarified the pleading standards concerning what is necessary to defeat a 12(b)(6) motion. . . . However, Twombly does not appear to have changed the substantive antitrust law . . . .”[3]  This statement has it backwards.

This Colloquy Post argues that Twombly changed antitrust law by modifying the elements of an antitrust conspiracy claim, but did not rework pleading rules across the board.  Although the Court briefly discussed Conley v. Gibson, its language differed only superficially from the existing law of civil procedure.  Meanwhile, the concept of “plausibility,” which attorneys and courts have begun to apply to all pleadings,[4] is actually antitrust jargon.  The Court used “plausibility” in its antitrust context, to resolve an existing problem in antitrust law, and it is a misreading of Twombly to extend “plausibility” beyond that context.

Is Dick Cheney Unconstitutional?

By Glenn Harlan Reynolds[*]

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The Vice Presidency “isn’t worth a bucket of warm spit.”
Vice President John Nance Garner[1]

Twenty years ago I wouldn’t have advised my worst enemy to take the Vice-Presidency.  It was God’s way of punishing bad campaigners, a sort of political purgatory for the also-rans.  Now you’d be crazy not to take the job. 
Aide to President Ronald Reagan[2]

Many a true word is spoken in jest, we’re told.  More surprisingly, sometimes the truth even emerges, unsought, from the mouths of politicians and their flacks.  This may be the case with regard to recent claims by Vice President Dick Cheney’s office that he is, properly speaking, a “legislative officer” rather than a member of the executive branch.[3]  The consequences of this argument, however, may prove unpalatable to the Bush Administration on closer examination.  Indeed, an activist Vice Presidency, in the Cheney model, might be considered unconstitutional if the Vice President is regarded as a legislative official.  And, regardless of whether that characterization controls, there may be prudential reasons for keeping the Vice President at a greater remove from executive affairs than has recently been the case.

Coming Clean About "Junk DNA"

By Simon A. Cole[*]

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It is a challenge to reply to a response when its very title pleads that we put the issue of whether forensic DNA profiles contain predictive medical information to rest.[1]  I agree that the recent exchange between Professors Joh, Kaye, and myself has probably beaten the “junk DNA” horse past the point of expiration.  One thing we all agree upon is that the potential privacy violations engendered by the storage of forensic DNA profiles in law enforcement databases is a “distraction,”[2] as Professor Kaye puts it, from the potential privacy issues posed by the storage of DNA samples in law enforcement and other government repositories.

Nonetheless, this exchange has not been a useless exercise.  It began when I discovered Professors Joh and Kaye’s contributions during my effort to better understand—and, therefore, more clearly convey in my own writing—the state of scientific knowledge concerning the claim that the information held in law enforcement genetic databases is innocuous from a privacy standpoint.  Professor Joh asserted that the claim of innocuousness was not true,[3] and Professor Kaye countered that Professor Joh’s claim was flatly “false.”[4]  Under such circumstances, I was at a loss as to what to tell my own readers.  Therefore, I traced back Professor Kaye’s key source, and offered my own contribution to the debate, suggesting that both authors had engaged in a certain degree of oversimplification.[5]