What If?: A Study of Seminal Cases as if Decided Under a Twombly/Iqbal Regime

Abstract:     
What if, like in It’s a Wonderful Life, we were able to go back and see what life would be like without a particular legal rule? In other words, what if we could be the George Bailey of law for a day? It is through this “what if” lens that this essay tackles the already well-discussed cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal. But, unlike the scholarship that has addressed these cases so far, this essay stakes out a completely different methodological approach. Rather than predicting what courts might do with Twombly and Iqbal going forward, it asks what might have been had Twombly and Iqbal existed decades ago. To engage in this exercise, the essay looks at actual complaints in cases that have become common parlance in legal circles, Bakke v. The Regents of the Univ. of Cal. and Hopkins v. Price Waterhouse, and applies the standards enunciated in Twombly and Iqbal to them. By doing so, the essay attempts to concretely think about the consequences of a Twombly/Iqbal pleading regime by considering the potential impact that a granted motion to dismiss might have had on cases that we take for granted today. This requires both micro and macro considerations. At the micro level, it is worth thinking about whether the complaint could have been re-filed and ultimately survive a motion to dismiss. At the macro level, the exercise involves a broader consideration of what would have happened had the case never been decided. In other words, how would the doctrines defined by that seminal case have been affected? And, even more broadly, how might the development of particular kinds of law practice changed and how might other modes of social change been utilized? By considering the effect of Twombly and Iqbal in this manner, the essay offers yet another way to consider the benefits and drawbacks of a Twombly/Iqbal regime.

Number of Pages in PDF File: 35

Keywords: access to justice, courts, judges, civil rights, pleading, Twombly, Iqbal, Rule 8, civil procedure, practice and procedure

Accepted Paper Series