Blawgletter confesses that we sometimes post a precis of court opinions before we read them start-to-finish. But we do so to get the news out pronto for our dear subscribers and browsers. Plus we include a link to the opinions that readers may reach their own conclusions.
So what excuse does Richard A. Epstein have for his op-ed piece today about Bell Atlantic Corp. v. Twombly, No. 05-1126 (U.S. May 21, 2007) (Blawgletter posts here and here)? In Twombly, the Court disavowed a half-century-old standard for assessing complaints and ordered dismissal of one that the 7-2 Court believed failed to allege a plausible antitrust conspiracy. U. Chicago professor and Hoover Institute fellow Epstein boiled the ruling down to "ending the class-action extortion racket." Really?
No, not really. Not really at all.
Any lawyer worth his salt wouldn’t sally forth with such a claim unless he’d at least digested the opinion of which he speaks. Mr. Epstein, on the other hand, couldn’t get even the case name right; he calls it "Twombly v. Bell Atlantic", reversing the parties’ names. No big deal, right? But he ends by proposing "limitations on discovery" as panacea — a solution that the Court explicitly rejected, calling it "no answer" adding that discovery limitations "cannot" solve the problem.
We may infer that Mr. Epstein wrote his op-ed on the fly and with hopes of sustaining his notoriety as legal scholar. But will he — or the WSJ — pay the price in credibility for their sloppiness? We can only hope.
Barry Barnett
