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Thomas on Iqbal & Twombly

By Lawrence Solum

Suja A. Thomas (University of Illinois College of Law) has posted Oddball Iqbal and Twombly and Employment Discrimination (University of Illinois Law Review, 2010) on SSRN. Here is the abstract:

This brief Essay argues that Bell Atlantic Corp. v. Twombly was an oddball case, a massive antitrust action with significant costs, much different than the vast majority of cases in the federal courts. While the Supreme Court and some scholars including Professor Richard Epstein have largely justified the new plausibility standard in Twombly on the basis of these costs, they have not shown why the new standard should apply transsubstantively to cases without these same costs, including typical employment discrimination cases. This Essay further argues that Ashcroft v. Iqbal like Twombly was also an oddball case, though with different types of costs than Twombly. Finally, contrary to Professor Epstein, this Essay argues that the standard under Iqbal and Twombly is likely to be procedurally revolutionary in employment discrimination cases. Indeed, the new standard could lead to a revolution due to the convergence of the new motion to dismiss standard with summary judgment and the effective death of Swierkiewicz v. Sorema N.A.

An interesting take on a very important issue. I read the immediately prior draft, definitely recommended.

Full post as published by Legal Theory Blog on September 22, 2010 (boomark / email).