Print Edition
Articles, notes, and symposia pieces published in CLR’s print volumes.
Before Ashcroft v. Iqbal, and its companion predecessor Bell Atlantic Corp. v. Twombly, a pleading only had to provide proper notice and set forth claims that were legally sufficient. But Twombly and Iqbal added a new factual-sufficiency standard to the pleading test: The nonconclusory allegations must set forth a claim to relief that is factually plausible in light of judicial experience and common sense. The two opinions were like earthquakes that rocked academics, practitioners, and judges. Although much ink was spilled in the immediate aftermath of Twombly and Iqbal, initial assessments, when the shockwaves were still being felt, could not fully capture the adjustments, practices, rulemaking angst, and doctrinal scaffolding that have developed with experience under the new standard. Fifteen years out, the iron has cooled, and expectations and understandings have settled. Now seems like an excellent opportunity for reassessment of Twiqbal’s more enduring legacies.
This Article presents the first systematic empirical study of “conclusory pleading” as a form of plausibility analysis in the U.S. courts of appeals following Ashcroft v. Iqbal, which critics argued would harm plaintiffs by creating excessive demand for information before discovery, and by increasing judicial subjectivity and ideology in decision-making in Rule 12(b)(6) decisions, particularly in civil rights litigation. Contrary to the canonical two-step account of plausibility pleading, courts of appeals almost never evaluate whether pleadings are conclusory fact by fact before proceeding to assess plausibility. Instead, in a one-step analysis they assess whether allegations, on the whole, are generally too conclusory to be plausible, or they render that judgment as to some particular key assertion in the context of the full complaint, without rejecting any other pleaded fact. Findings suggest that any increased judicial subjectivity after Twiqbal likely stems from aspects of plausibility doctrine other than conclusory pleading, shifts in case composition triggered by Twiqbal, or the broader politicization of pleading standards.
In this brief Essay, I want to focus on one aspect of the Iqbal decision that I have taught for many years and which, in my view, is useful for thinking about the policy implications of the heightened pleading regime that Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced: the goal of deterring nuisance suits. Both Iqbal and Twombly famously changed the standard of fact pleading for nonfraud claims. They shifted the standard from the “possibility” regime suggested by the “no set of facts” language of Conley v. Gibson to one of “plausibility,” where the factual allegations must be nonconclusory and have some “heft.” Much has been written about just what plausibility means and whether it changed anything, either in theory or in practice. Here, I want to focus on the motivation for the change in pleading standards, specifically the strain and expenditures put on defendants in civil litigation.
In 2007 and 2009, the Supreme Court upended the long-understood notice pleading framework, replacing it with the plausibility standard introduced in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. I proceed from the assumptions that the pre-Twombly/Iqbal pleading standard was, roughly speaking, the one announced in Conley v. Gibson, and that courts now generally apply the framework set forth in Twombly and Iqbal—which instructs judges to determine whether the nonconclusory allegations in a complaint plausibly show entitlement to relief—when defendants move to dismiss for failure to state a claim. The raison d’être of this Essay is my proposal, in Part II, for an amendment to Rule 12. In substance, this proposal amounts to a rebooting of efforts in the period shortly after Iqbal’s decision, to promote limited pre-dismissal discovery as a means of blunting Twombly and Iqbal’s effects on cases involving asymmetric information.
Ashcroft v. Iqbal is a doctrinally instructive case. Iqbal teaches that the test for sufficient pleadings turns on the concept of plausibility.[1] It clarifies that the previous, more permissive understanding of a sufficient pleading under Conley v. Gibson is no more.[2]Iqbal also reflects the Supreme Court’s skepticism regarding district court judges’ ability to manage complex discovery disputes effectively.[3] And it demonstrates the Court’s complex view of its rulemaking role—changing procedural rules by opinion. Yet, for civil procedure scholars, Iqbal also marks a shift in our approach to the scholarly enterprise. This Essay will explore three scholarly trends that can be derived from the academy’s response to the Iqbal decision. First, a vast array of scholars responded swiftly to Iqbal, with many civil procedure scholars taking an empirical turn. Second, Iqbal emboldened a burgeoning area of civil procedure scholarship focused on non-federal court procedure and adjudication. Third and finally, Iqbal sharpened scholars’ critical focus on procedure. While a strong “access-to-justice” perspective existed in procedural scholarship before Iqbal, that work focused less intently on immutable characteristics such as race.
Gold has intrinsic and cultural value, as well as technological utility, which underpin its steadfast demand on the global market. However, supplying gold comes at a substantial cost. Up to 20 percent of the world’s gold comes from artisanal and small-scale gold mining (ASGM), which is conducted by individuals and small enterprises with limited capital. Modern-day ASGM practices contribute to significant human health and environmental harms in disadvantaged communities and critical habitats. In particular, the use of mercury in gold mining gives rise to potent toxin poisoning in humans and contributes considerably to biodiversity and ecosystem degradation. Using Colombia as a case study, this Note analyzes the challenges in legally formalizing the small-scale gold mining industry and instituting protective regulation. It argues that continued emphasis on mercury elimination could still yet catalyze the adoption of sustainable gold mining practices. A mercury-mitigating approach in ASGM should be prioritized for two key reasons. Moving forward, to better mitigate mercury use in ASGM for countries like Colombia, policymakers should prioritize improving the efficiency of litigation and adjudication pathways for mining law violations, with an emphasis on protecting environmental defenders and other advocates.
CLR Online
The web edition of the California Law Review.
For those of us who are both Supreme Court watchers and World Cup fans, there was an odd convergence of worlds with the hand-down of Trump v. Barbara on June 30, 2026, the last day of the Supreme Court’s annual Term, and the United States Men’s National Soccer Team’s trials and tribulations that took place during the following week. With a red card suspension slated to sideline the U.S. Team’s star forward Folarin Balogun from their Round of 16 World Cup match against Belgium, President Donald Trump picked up the phone to call his friend Gianni Infantino, head of FIFA, the World Cup organizer. By President Trump’s own telling, he urged Infantino to set aside Balogun’s suspension and let him play. Hours later, that is precisely what happened. The President then posted on Truth Social, “Thank you to FIFA for doing what was right, and reversing a great injustice!” The irony was more than a little rich. Balogun was born in New York City in 2001 when his mother traveled there to visit her sister and was then refused boarding on her return flight due to her advanced pregnancy. But under Executive Order 14160, which President Trump issued as his first act in office of his second White House term on January 20, 2025, the circumstances of Balogun’s birth would render him ineligible for United States citizenship.
In a stunning expansion of presidential powers, the Supreme Court in Trump v. Slaughter overruled a ninety-year-old precedent and held that Congress cannot limit the President’s power to remove heads of federal agencies. This is a major lessening of checks and balances and again shows the six conservative justices’ disregard for even long-standing precedents. In this essay, I initially summarize Humphrey’s Executor, which was overruled in Trump v. Slaughter, and its progeny, before examining the consequences of its overruling in Slaughter, particularly as it relates to presidential power.
Pretextualism—the use of formalistic legal logic to mask unstated motives under a misleading cover story—has a long, troubling pedigree in American jurisprudence. Louisiana v. Callais exemplifies its modern revival. Justice Samuel Alito, writing for a six-justice majority, deployed this deceptive methodology to dismantle the final remnants of the nation’s most consequential civil rights law. Pretextualism has been baked into Supreme Court decision-making from the institution’s earliest days to its more recent controversies. While history is full of examples, pretextualism is especially salient today because the Trump administration deploys it so rampantly. The Supreme Court’s historical reliance on pretext, combined with its recent reluctance to confront executive deception, paved the way for the Court’s revival of pretextualism in Louisiana v. Callais.
Brokering Safety identifies a failure of privacy law: the tendency to allocate responsibility to individuals through opt-out and deletion rights, even as informational harm is generated by distributed systems capable of reconstructing, predicting, and targeting individuals over time. Privacy self-management fails, the Article shows, because the law has assigned them a task that the architecture of the data broker ecosystem made impossible. By grounding its critique in system design, Brokering Safety reframes the problem at the right level of analysis and points toward a corresponding solution: redistribution of responsibility from individuals to the institutional actors who generate exposure at scale. This comment builds on a mechanism in the Brokering Safety analysis. That mechanism is inference: the capacity of distributed systems to generate reliable, actionable knowledge about individuals by aggregating and recombining incomplete, loosely related data. This mechanism strengthens the centralized obscurity proposal by clarifying that the inadequacy of existing regimes reflects a category error: regulating transactions in data rather than the production of knowledge.
Companies in the networked information economy collect personal data to provide their services. Businesses are also always keen to develop other ways to monetize this consumer information. A handful of the largest leverage their platforms to serve content or ads on behalf of paying advertisers. After all, many companies are willing to pay handsomely for targeted access to potential buyers across devices. Others sell the data to third parties who find further commercial uses for it. Current legal doctrine allows this last category—data brokers—to sell or license personal data although they are not the ones to collect it from consumers. Meanwhile, most people do not know or understand these background deals and practices, even when they consent to them. Most consumers feel that they have no choice but to click yes and accept the terms of service. To put it starkly: the prevailing regulatory approach in the United States has effectively normalized data exposure.
Tragically, U.S. privacy law has neglected to address a significant dimension of privacy. While lawmakers and judges have routinely recognized intrusions into our secluded spaces and breaches of our confidentiality and secrecy, they have largely failed to protect our most common yet also our most underappreciated form of privacy: the practical obscurity that allows us to live freely and with dignity. Obscurity, which is the state of protection that arises when personal information is difficult for some people to obtain or correctly interpret, serves several vital interests: (1) it safeguards our ability to express ourselves without fear that everything we say could be used against us; (2) it enables us to participate in key democratic processes like protesting without the government recording our opposition in a database; and (3) it allows us to form intimate relationships where we selectively share what is on our minds and in our hearts. Ultimately, obscurity provides the “breathing room” we need pursue self-development or establish healthy boundaries with others.
Symposia
Articles accompanying CLR’s conferences. Published in the print edition.
Before Ashcroft v. Iqbal, and its companion predecessor Bell Atlantic Corp. v. Twombly, a pleading only had to provide proper notice and set forth claims that were legally sufficient. But Twombly and Iqbal added a new factual-sufficiency standard to the pleading test: The nonconclusory allegations must set forth a claim to relief that is factually plausible in light of judicial experience and common sense. The two opinions were like earthquakes that rocked academics, practitioners, and judges. Although much ink was spilled in the immediate aftermath of Twombly and Iqbal, initial assessments, when the shockwaves were still being felt, could not fully capture the adjustments, practices, rulemaking angst, and doctrinal scaffolding that have developed with experience under the new standard. Fifteen years out, the iron has cooled, and expectations and understandings have settled. Now seems like an excellent opportunity for reassessment of Twiqbal’s more enduring legacies.
This Article presents the first systematic empirical study of “conclusory pleading” as a form of plausibility analysis in the U.S. courts of appeals following Ashcroft v. Iqbal, which critics argued would harm plaintiffs by creating excessive demand for information before discovery, and by increasing judicial subjectivity and ideology in decision-making in Rule 12(b)(6) decisions, particularly in civil rights litigation. Contrary to the canonical two-step account of plausibility pleading, courts of appeals almost never evaluate whether pleadings are conclusory fact by fact before proceeding to assess plausibility. Instead, in a one-step analysis they assess whether allegations, on the whole, are generally too conclusory to be plausible, or they render that judgment as to some particular key assertion in the context of the full complaint, without rejecting any other pleaded fact. Findings suggest that any increased judicial subjectivity after Twiqbal likely stems from aspects of plausibility doctrine other than conclusory pleading, shifts in case composition triggered by Twiqbal, or the broader politicization of pleading standards.
In this brief Essay, I want to focus on one aspect of the Iqbal decision that I have taught for many years and which, in my view, is useful for thinking about the policy implications of the heightened pleading regime that Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced: the goal of deterring nuisance suits. Both Iqbal and Twombly famously changed the standard of fact pleading for nonfraud claims. They shifted the standard from the “possibility” regime suggested by the “no set of facts” language of Conley v. Gibson to one of “plausibility,” where the factual allegations must be nonconclusory and have some “heft.” Much has been written about just what plausibility means and whether it changed anything, either in theory or in practice. Here, I want to focus on the motivation for the change in pleading standards, specifically the strain and expenditures put on defendants in civil litigation.
In 2007 and 2009, the Supreme Court upended the long-understood notice pleading framework, replacing it with the plausibility standard introduced in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. I proceed from the assumptions that the pre-Twombly/Iqbal pleading standard was, roughly speaking, the one announced in Conley v. Gibson, and that courts now generally apply the framework set forth in Twombly and Iqbal—which instructs judges to determine whether the nonconclusory allegations in a complaint plausibly show entitlement to relief—when defendants move to dismiss for failure to state a claim. The raison d’être of this Essay is my proposal, in Part II, for an amendment to Rule 12. In substance, this proposal amounts to a rebooting of efforts in the period shortly after Iqbal’s decision, to promote limited pre-dismissal discovery as a means of blunting Twombly and Iqbal’s effects on cases involving asymmetric information.
Ashcroft v. Iqbal is a doctrinally instructive case. Iqbal teaches that the test for sufficient pleadings turns on the concept of plausibility.[1] It clarifies that the previous, more permissive understanding of a sufficient pleading under Conley v. Gibson is no more.[2]Iqbal also reflects the Supreme Court’s skepticism regarding district court judges’ ability to manage complex discovery disputes effectively.[3] And it demonstrates the Court’s complex view of its rulemaking role—changing procedural rules by opinion. Yet, for civil procedure scholars, Iqbal also marks a shift in our approach to the scholarly enterprise. This Essay will explore three scholarly trends that can be derived from the academy’s response to the Iqbal decision. First, a vast array of scholars responded swiftly to Iqbal, with many civil procedure scholars taking an empirical turn. Second, Iqbal emboldened a burgeoning area of civil procedure scholarship focused on non-federal court procedure and adjudication. Third and finally, Iqbal sharpened scholars’ critical focus on procedure. While a strong “access-to-justice” perspective existed in procedural scholarship before Iqbal, that work focused less intently on immutable characteristics such as race.
The concern raised by David Strauss’s Essay might be addressed by positing an alternative, broader conception of judicial review than the one he proposes, which is inspired by the influential footnote in the Carolene Products case. My alternative view on the scope and nature of judicial review does not grow out of experience with American Constitutional history (which I am no expert on), but rather from a philosophical perspective grounded in liberal and democratic theory and from a comparative constitutional experience drawn from the European and Israeli contexts. I will present my position through a defense of two distinctions that seem essential to me.
Podcast
Interviews with the authors of articles, notes, or online pieces published in CLR.
Algorithms shape our modern world, determining everything from which ads we might see on Instagram to who is afforded access to credit. Yet if you're not a machine learning engineer, it's hard to discern what decisions go into the development of these algorithms. That question -- what input decisions go into the creation of machine learning algorithms -- motivated Professor Fanna Gamal's latest article, The Algorithmic Racial Proxy. Professor Gamal, Assistant Professor of Law at UCLA School of Law, noticed that developers often exclude race and racial proxy variables as an input when creating machine learning algorithms.
In 2023, the Supreme Court decided Mallory v. Norfolk, Southern Railway Company, which held that consent remains a method of establishing personal jurisdiction independent of the minimum contacts test, first introduced by International Shoe Company. Washington. On the surface, this decision resolved ambiguities in personal jurisdiction doctrine. But, to explain to us how Mallory failed to consider the many complexities underlying consent to personal jurisdiction, Scott Dodson, a Distinguished Professor of Law at UC San Francisco, joins us to discuss his article, The Complexities of Consent to Personal Jurisdiction.
The amorphous administrative state is often oversimplified and misunderstood. Now, with the Trump Administration pushing for mass deportation and the DOGE dissecting and even disemboweling federal agencies, it is increasingly important to understand the different types of agencies, how they are run, and how agencies like the CBP, ICE, and the Bureau of Prisons create “at a massive scale the ‘field of pain and death’ that the law occupies.” From detaining federal criminal prisoners and immigrants to engaging in armed conflicts and carrying out domestic arrests, these agencies are governed by statutes, regulations, and internal guidelines that nonetheless fail to stop violence and the misuse of force.
People usually think that all tax agencies do is ensure tax laws are followed. But for decades, the IRS has regularly facilitated immigration raids. These raids target employees even as the IRS investigates their employers’ potential tax violations. What can this state of affairs teach us about agency overreach? And what alternate paths could better align the IRS’s efforts with its mission? In this episode, UC Davis School of Law Professor Shayak Sarkar discusses the IRS's underappreciated role in immigration enforcement.
Traffic courts resolve over half of the cases in the U.S. legal system. These cases are easy for some defendants to handle by paying a fine, but they can have devastating effects for those with fewer means. And despite the key role these courts play in funding state judicial branches and other state and local programs, they have not been comprehensively studied in decades. What’s going on in traffic courts? And what can they teach us about the legal system more broadly? In this episode, Arizona State University Sandra Day O’Connor College of Law Professor Justin Weinstein-Tull explains his research on traffic courts.
Immigration adjudications regularly use information from the criminal legal system to justify a discretionary denial of relief or benefits, even when charges have been dismissed. This practice faces little scrutiny due to the assumption that adjudicators are merely importing facts already found by the criminal system. But what if this practice actually constitutes “hidden factfinding”? Sarah Vendzules, a Senior Staff Attorney at the Office of the Appellate Defender in New York City, uncovers this hidden factfinding and offers a framework that could rein it in.
