Monday, April 26, 2010

Plausibly Pleading Employment Discrimination

New Image The Supreme Court’s new plausible pleading regime under Twombly and Iqbal was greeted by the academy with much weeping and gnashing of teeth. Although I was one of the weepers/gnashers, I’ve been struck with how the prolific scholarship on the topic is developing along the lines of Kubler-Ross stages of grief.  While different scholars are at different stages (some still at denial in taking the Court at its word that the decisions did not interring notice pleading), the reactions map pretty well on Kubler-Ross’s five stages:

  • Denial
  • Anger
  • Bargaining
  • Depression
  • Acceptance

For example, post-Twomblyand pre-Iqbal, a number of scholars engaged in spirited denial (e.g., Twombly is only for antitrust cases), and especially after Iqbal, anger flared not only at the substance of the new approach but also at what many viewed as the Court’s illegitimate de facto amendment of Rule 8. After each case, scholars bargained with the Court, for example by offering narrowing interpretations of the opinions or trying to carve out islands of immunity, such as employment discrimination.  Depression is mostly exhibited in informal conversations in the hallways, but, more recently, there are even signs of acceptance. 

By acceptance, I don’t mean those who celebrate the new plausible pleading regime, although there are a few. Rather, I include those like me who’d much prefer the Conley v. Gibson dispensation but see little chance of a restoration happening any time soon (whether by Court reversal or  congressional override). Instead, we wonder whether there aren’t ways to take the Court at its word but nonetheless salvage much of notice pleading from the wreckage of plausible pleading.

I’ve been at work for a while on an article on this topic called Plausibly Pleading Employment Discrimination. While it isn’t ready for prime time yet, this and subsequent posts will sketch my thoughts. In this regard, I join Suja Thomas, Joe Seiner, and Suzette Malveaux who have looked at the application of “TwIqbal” to the employment arena.  I might have a somewhat different slant.

Anyhow, stay tuned for future installments.



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