TWOMBLY IN CONTEXT: WHY FEDERAL RULE OF CIVIL PROCEDURE 4(B) IS UNCONSTITUTIONAL

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest. The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a summons ordering someone to come to court to answer charges. It is argued that unless courts routinely award full economic costs after the fact to make someone whole who has been sued wrongfully, they must satisfy themselves in advance that there is a reasonable basis for suit before ordering the persons sued to appear and answer. Rule 4(b) is argued to be unconstitutional as (1) a seizure of the person and property of the defendant without any attempt by the state to verify that it is reasonable to do so; (2) an unconstitutional deprivation of property without due process of law; (3) an unconstitutional delegation of state power to issue a court order to a private party with a financial interest, and (4) an unconstitutional repeal of a statute providing for judicial control over process without following constitutionally required procedures. The policy issues are even clearer than the constitutional ones. The current practice of delegating government power to private parties with an interest in the outcome who do not pay the full social costs of their speculation creates incentives to over-supply litigation and to file strike suits. The Supreme Court decisions in Iqbal and Twombly correctly  Professor (Adjunct) of Law, Yale Law School. I am grateful to Matthew Christensen, Yale Law School Class of 2012, for his excellent research assistance. An earlier version of this Article was presented at the Federalist Society’s Litigation Practice Group Conference at the National Press Club in Washington, D.C. The Federalist Society, Changing the Federal Rules of Civil Procedure: Has the Time Come?, YOUTUBE (Dec. 9, 2010), http://youtu.be/ZPsOcRf2zEk. I also benefited from comments at workshops at the Arizona State University Sandra Day O’Connor College of Law and Yale Law School, and particularly the critical comments of my colleague and friend John Langbein. Of course, I alone am responsible for the errors that remain. Please direct any comments or questions to e.donald.elliott@yale.edu. 1 Elliott: Twombly in Context: Why Federal Rule of Civil Procedure 4(B) Is U Published by UF Law Scholarship Repository, 2012 896 FLORIDA LAW REVIEW [Vol. 64 identified this problem, but they misdiagnosed it as lying in Rule 8 relating to general rules of pleading, rather than Rule 4 relating to the “right” of anyone to compel anyone to come to court about anything without any prior review by the court. A possible solution, the “PreService Plausibility Determination,” is suggested based on the system of preliminary review before service that is followed in many other areas of domestic law as well as some other countries. The issue of “reasonable but speculative” claims is also considered, and it is argued that the decision to allow such claims should not be delegated to plaintiff’s lawyers, but discovery to find missing link evidence should be allowed on a discretionary basis under Rule 27 at the expense of the plaintiff’s lawyer, who will benefit economically if the case is successful. INTRODUCTION 897 I. THE FATAL FLAW IN RULE 4(B) 898 II. RULE 4(B) UNCONSTITUTIONALLY DELEGATES STATE POWER 913 A. Rule 4 Deviates from Our Historical Tradition that a Federal Judge Controls the Grounds upon Which Someone May be Summoned by the Court ......... 916 1. The Original Understanding of the Court Order of Summons 916 2. The “Reforms” of 1938 923 B. Rule 4(b) Unconstitutionally Seizes Persons and Property 939 C. Rule 4(b) Unconstitutionally Deprives Persons Sued of Property Without Due Process of Law 945 D. Rule 4(b) Unconstitutionally Delegates Governmental Power to Private Parties 951 III. THE GOVERNMENT MUST VERIFY THE PLAUSIBILITY OF CIVIL CLAIMS BEFORE IT ORDERS PERSONS TO ANSWER THEM 959 2 Florida Law Review, Vol. 64, Iss. 4 [2012], Art. 3 http://scholarship.law.ufl.edu/flr/vol64/iss4/3 2012] TWOMBLY IN CONTEXT 897 Under the relaxed pleading standards of the Federal Rules, the idea was not to keep litigants out of court but rather to keep them in. – Justices Stevens and Ginsburg, dissenting in Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570, 575 (2007). Every reform, however necessary, will . . . be carried to an excess, that itself will need reforming. – Samuel Taylor Coleridge (1817) 1 In this country, the system of laws is such that a trial lawyer can say any damned thing in a claim letter—any fantasy, however fictitious— send it off, and next thing you know, you are shelling out time and money defending yourself against a fantasy. It is a nightmare, only it’s real.