By Amy J. Wildermuth[*]
The Supreme Court’s recent opinion in Bell Atlantic Corp. v. Twombly has already had enormous implications for pleading requirements under the Federal Rules of Civil Procedure. As of early April 2008—less than a year after it was issued—Twombly had been cited in almost 5,000 cases. It also was an immediate—and continuing—source of much academic debate.
I cannot help but notice a distinct parallel between Twombly and another opinion authored by Justice Souter, United States v. Mead. At first blush, these cases have little in common outside of their author: One was an antitrust dispute about what factual evidence must exist and be pled to defeat a Rule 12 motion on an alleged “parallel conduct” violation of Section 1 of the Sherman Act; the other was an administrative law case about the deference owed to agencies’ statutory interpretations that are not subjected to Administrative Procedure Act (APA) required process. What brings this odd couple together?
The most obvious shared trait is that the Court appears to have fundamentally altered procedural law in both decisions. That alone, however, does not mean much. Changing the law, even significantly, is the Court’s prerogative. The common denominator instead is the confusion one is left with after parsing both Twombly and Mead. It is one thing to know that the law has changed when the change—the new order, the new rule, the new way of operating—is clear. But these opinions offer no straightforward answers. Rather, on key issues in both cases, the court offers a similar formula of circular directions: it begins with a fairly clear description of the general legal test to apply, but then proceeds to detail exceptions or additions that have the potential to swallow the general rule.
These two cases are different, however, in one important way: the Court’s ability to correct the confusion its decisions engender. Even if the Court were interested in revisiting the question of the proper deference to afford agency interpretations, it would need to wait for a good vehicle to address the many uncertainties Mead has generated. The confusion with respect to Twombly, however, can disappear quickly. Acting under its powers to revise the Federal Rules of Civil Procedure, the Court could revise either Rule 8 or Rule 9 and thus immediately end the speculation regarding what Twombly means.