Oregon Law Review : Vol. 90, No. 4, p. 1147-1180 : What If?: A Study of Seminal Cases as if Decided Under a Twombly/Iqbal Regime
Coleman, Brooke D.
Part I of this Essay briefly summarizes the two seminal Supreme Court cases that provide the backdrop for this study: Regents of the University of California v. Bakke and Price Waterhouse v. Hopkins. Part II applies Twombly and Iqbal to the original complaints filed in Bakke and Price Waterhouse and argues that there is a strong likelihood that the Court would have dismissed those complaints under a Twombly/Iqbal regime. Finally, Part III considers what the impact would have been if the Court had dismissed those cases. For example, the application of Twombly and Iqbal is likely to impact substantive claims historically brought by institutional plaintiffs. Even though institutional litigation has become so common over the past few decades, the Twombly/Iqbal regime may mark the beginning of its demise.