Legal Sanity "Discovered"

Professor Richard Epstein, of the University of Chicago School of Law, says the U.S. Supreme Court may have started "a welcome revolution in civil litigation."

In an editorial in The Wall Street Journal (24 May 2007), Professor Epstein discusses the implications of the Court's dismissal of an anti-trust class-action suit against telephone companies, Twombly v Bell Atlantic, without requiring the expensive and time consuming legal process known as "discovery."

All too often, defendants find it easier and less expensive to settle a case rather than submit to discovery, even if the case against them is flimsy. This might be a practical solution, but it isn't justice.

In the Twombly case, the Court dismissed the case without discovery and saved "millions in legal fees and potential billions in treble damage awards." This decision marks a break with a long-standing interpretation of the Federal Rules of Civil Procedure that allowed each party to probe its rival's case before going to trial.

It's too early to tell whether the thinking behind this dismissal will spread to other class-action lawsuits. But it is a step in the right direction. Anyone who wants to start a class-action lawsuit should be prepared to justify the costs in terms of time and money.

In addition to his many honors, Professor Epstein is a member of the Advisory Board of The Bastiat Society.

Read his comments here.