Wednesday, September 22, 2010
Suja A. Thomas (Illinois) has posted on SSRN her forthcoming essay in the University of Illinois Law Review: Oddball Iqbal and Twombly and Employment Discrimination.
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.
Suja continues to be one of the leading authorities on the impact of Twombly and Iqbal in the employment discrimination law context. This is a must-read for any one who is interested on the impact of these decisions on future employment discrimination law claims.