I just came across a law review article title that does an unusually good job of intriguing and informing its likely readers. As you’ll see in a moment, it is entirely meaningless to most people who don’t know the two cases it refers to (which is one reason I generally recommend against including case names in most article titles). But those readers at whom it’s aimed will know the cases, and they’ll quickly grasp what the article is saying:
Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery
What’s rare is that the title doesn’t just explain the subject of the article — it instantly conveys to the knowledgeable reader what the article’s novel, nonobvious, and potentially useful insight is. For those of our readers who don’t know, Twombly is the controversial recent Supreme Court decision that held that courts can dismiss a complaint before discovery (compelled document production, depositions, and so on) when the complaint seems insufficiently “plausible.” The upside of the decision is that it spares likely nonculpable defendants the often extremely expensive and time-consuming court-ordered discovery, which can be especially expensive in large antitrust cases such as Twombly itself. The downside is that it deprives plaintiffs — who likely have no case (given that the court thinks the complaint isn’t “plausible”), but possibly do have one — of the information that they could use to prove their case. Mathews v. Eldridge is the earlier Supreme Court case that set forth a balancing test for deciding when certain civil litigation rules violate the Due Process Clause, because they impose excessive burdens on those people whose liberty or property is constrained by those rules.
The article’s insight is that Twombly makes sense because of Mathews — that discovery is a coercive court procedure that likewise should be justified under the Due Process Clause, and that under circumstances such as in Twombly itself, such discovery is not justified. Now you might agree or disagree with that, but a civil procedure scholar friend of mine assures me that this is indeed a relatively novel and nonobvious conclusion.
And the title immediately conveys to knowledgeable readers (even those who, like me, don’t work in civil procedure but have heard of these two important Supreme Court cases) exactly what the value added by the article is going to be. This increases the chances that people who see the article title in Lexis or Westlaw search results, and find the claim relevant, will indeed read the article. It means that even people who don’t read the article might be persuaded by the insight, at least to the point of recognizing it as a possible argument to consider. And it means that people who read the title will be more likely to at least remember the insight, and go back to the article later when the article’s claim becomes more directly relevant to them.
So I thought this was worth noting for people who are looking for good titles for their articles. Not all claims can be quickly and clearly summarized (again, “clearly” meaning “clearly for the likely readers of the article”) in several words. But if they can be, that could be a very effective title.
captcrisis says:
I agree, a great title.
Unfortunately many Law Review editors, who regard plain English as improper tone, won’t allow titles that are complete sentences.
August 24, 2011, 1:26 pmEugene Volokh Discusses Andrew Blair-Stanek’s Article Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery on The Volokh Conspiracy | Florida Law Review says:
[...] Read Professor Volokh’s commentary on the article’s “enlightening” title at The Volokh Conspiracy. [...]
August 24, 2011, 2:25 pmAdam says:
How about Twombly: Logical Extension of Matthews v Eldridge Discovery Test
As to the substance, it’s an interesting and persuasive way to look at it. Not that it’s a unique point of view, but I’ve always said that Twombly was the wrong answer to the right question.
The right answer is probably Rule 11, but everyone to think using it would be impolite.
Of course, if your case is assigned to a senior judge who says, “Toombly” you are probably screwed anyway.
August 24, 2011, 2:35 pmanonymous says:
Here’s a link to the PDF of the article on the Florida Law Review’s website: http://floridalawreview.org/wp-content/uploads/2011/08/BlairStanek_Jan2010.pdf. [EV says: Thanks, changed the post to use this link.]
August 24, 2011, 2:37 pmCrazyTrain says:
One problem is that it is not that unusual for discovery to go forward while a Rule 12(b)(6) motion is pending — so long as the court has ordered the parties to confer pursuant to Rule 26f. In some jurisdictions, that happens almost as a matter of course while a 12(b)(6) is pending, while in other jurisdictions, it is customary for the Court to wait until an actual answer has been filed.
August 24, 2011, 5:33 pmSteve says:
I had a federal case recently where the judge made us go forward with discovery even though the complaint read like something authored by a lunatic. He then sat on our motion and did nothing for 9 months while discovery was completed. At that point, he asked us whether, if the plaintiff’s case was as devoid of evidentiary support as we claimed, why we didn’t want to just go ahead and file a motion for summary judgment rather than forcing him to rule on whether the pleading was adequate. I guess some judges believe in a gatekeeper function and others don’t.
August 24, 2011, 5:45 pmcaptcrisis says:
Steve,
I’ve had similar experiences with federal judges. Especially with diversity cases. State law is too mundane for these philosophers — they want to pontificate on Constitutional questions. So they sit on motions on cases that bore them.
August 24, 2011, 5:50 pmDilan Esper says:
Most important thing in law review articles is don’t include a colon. That’s a lazy technique that shows you can’t express your article’s subject in one sentence or phrase. And, it makes it look like 95 percent of all the article and book titles out there.
Figure out a way to use a single sentence or phrase to title your article.
August 24, 2011, 6:13 pmCrazyTrain says:
I assume you mean in the law review titles – otherwise, I strongly disagree. There is no reason a colon should not be used, when appropriate, in the body of a law review article. The colon is a very useful piece of punctuation sometimes.
August 24, 2011, 7:13 pmThe Crafty Trilobite says:
Fascinating article. But it strikes me as more prescriptive than descriptive. The Court in Twombly, Swierkewicz, etc. may indeed have been relying on an intuition strongly informed by the Mathews factors. And the author makes a very good case that Mathews should apply to discovery. But the Court certainly did not openly apply the Mathews factors, or direct lower courts to apply them — which means that an argument in any lower court that some particular case should or should not be dismissed under Twombly because of how Mathews would apply is unlikely to have traction. One can imagine, however, some of the Justices smacking themselves on the head and saying, “Hey, that’s what we should have said!” And maybe someday they will.
August 24, 2011, 8:07 pmDilan Esper says:
I meant in titles, thanks.
August 24, 2011, 8:12 pmSasha Volokh says:
A few other examples of law review articles where the title is a sentence explaining the thesis:
Matthew Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597 (2009)
Louis Kaplow & Steven Shavell, Any Non-Welfarist Method of Policy Assessment Violates the Pareto Principle, 109 J. Pol. Econ. 281 (2001)
Steven Shavell, Any Frequency of Plaintiff Victory at Trial Is Possible, 25 J. Legal Stud. 493 (1996)
August 24, 2011, 8:44 pmPatty Shundynide says:
Chevron Has Only One Step — very good.
August 24, 2011, 9:56 pmDaoud al Amriki says:
Twiqbal has given district court judges free reign to engage in unsupported speculation about what is or isn’t plausible in order to dismiss those cases they find unpalatable. All this blather be damned! I know the practical result of the Supreme Court’s unfortunate foray into procedural matters that are best left to practitioners, not some philosopher kings ruminating about legal theories while listening to Nabucco.
August 24, 2011, 10:19 pmPointOfLaw Forum: "Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery" says:
[...] creative insight from Andrew Blair-Stanek in the Florida Law Review (via Volokh):The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both [...]
August 25, 2011, 9:19 am