Abstract:
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.