Twombly in Context: Why Federal Rule of Civil Procedure 4(b) Is Unconstitutional

Abstract

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.