Academic journal article Suffolk University Law Review

The Law of Unintended Consequences: Shockwaves in the Lower Courts after Atlantic Corp. V. Twombly

Academic journal article Suffolk University Law Review

The Law of Unintended Consequences: Shockwaves in the Lower Courts after Atlantic Corp. V. Twombly

Article excerpt

When I was trying to come up with a topic for the Donahue Lecture and Essay, my law clerks suggested that I focus on the unintended complications that appellate courts sometimes impose on district judges. From guest sittings on the Court of Appeals, I have learned that appellate judges approach cases and legal issues differently from trial court judges. Trial level judges have busy civil and criminal dockets to move, so we tend to favor practical--rather than elegantly theoretical--solutions to the problems we face. The practical considerations of case management, however, are not always taken into account in appellate decisions. When the rules that are handed down are difficult or time-consuming to implement, they can adversely affect the administration of justice at the nisi prius level.

We have all heard of the law of unintended consequences. More than a few recent appellate decisions have brought in their wake unanticipated (and, I am sure, unintended) consequences for the management of cases in trial courts, to the prejudice of litigants and the consternation of the judges who must put the decisions into practice.

A few recent Supreme Court decisions, which are causing no end of practical problems for district judges, illustrate my point. For example, most legal observers thought the Supreme Court took the case of Rita v. United States (3) to resolve a circuit split over whether a sentence within the United States Sentencing Guidelines is or is not presumptively reasonable. Instead, the Court enshrined the split into law, holding that a court of appeals "may" presume that a Guidelines sentence is reasonable, but not that it "must" do so. (4) As a result, in some circuits, courts presume Guidelines sentences are reasonable and defense counsel seeking below-Guidelines sentences must try to rebut that presumption; while in other circuits, defense counsel argue at sentencing that a proposed sentence would be reasonable without having to worry about any presumption. (5) These are two entirely different exercises.

Another decision that gives rise to tremendous practical implementation issues is Saucier v. Katz. (6) In Saucier, the Supreme Court announced the procedure that district courts should follow to determine whether a public officer defendant is entitled to qualified immunity. (7) But the procedure the Court selected is cumbersome and inherently contradictory, as well as difficult and extremely time-consuming to apply in practice.

Finally, one of the most controversial decisions that illustrates my thesis is last term's decision in the case of Bell Atlantic v. Twombly. (8) In this essay, I will discuss the Twombly decision, identify its unintended consequences, and suggest one possible reason why the Supreme Court continues to confound district judges by unwittingly erecting barriers to effective case management.


Bell Atlantic Corp. v. Twombly was probably the least anticipated decision to come out of the 2007 Supreme Court. It also happens to be one of the Court's most important procedural decisions of the last decade, with massive implications for civil litigation. Twombly's seismic impact is apparent when one considers that in the first six months after the decision was handed down, it was cited in more than 2,000 district court opinions and 150 circuit court opinions. (9)

Because Twombly is so widely cited, it is particularly unfortunate that no one quite understands what the case holds. Depending on how one reads it, the Twombly decision might have radically changed one of the iconic rules of civil procedure, while overturning or modifying one of the most often cited cases in the United States Reports. (10) As both district court and appellate court judges try to parse the meaning of a few key phrases in the Twombly decision, what was once uniform dogma about the pleading standard for most causes of action is being fragmented on a circuit-by-circuit--or sometimes a judge-by-judge--basis. …

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