Oddball Iqbal and Twombly and Employment Discrimination

14 Pages Posted: 22 Sep 2010 Last revised: 14 Feb 2011

See all articles by Suja A. Thomas

Suja A. Thomas

University of Illinois College of Law

Date Written: September 21, 2010


This brief Essay argues that Bell Atlantic Corp. v. Twombly was an oddball case, a massive antitrust action with significant costs and asymmetry of 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 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, particularly 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.

Keywords: Iqbal, Twombly, employment discrimination, costs, plausible, motion to dismiss, summary judgment, Swierkiewicz, Richard Epstein, asymmetry, plausibility, Rule 56, Rule 8(a)(2), Rule 8, notice pleading, notice, Conley

JEL Classification: K41, K22, J70, K40, K49, K19, K10, K13

Suggested Citation

Thomas, Suja A., Oddball Iqbal and Twombly and Employment Discrimination (September 21, 2010). University of Illinois Law Review, Vol. 2011, No. 1, 2011, Illinois Public Law Research Paper No. 10-09, Available at SSRN: https://ssrn.com/abstract=1680591

Suja A. Thomas (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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