Iqbal & The Evolution of Procedural Scholarship
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Introduction
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 rather than seeking an amendment to Federal Rule of Civil Procedure 12(b)(6) through the Rules Enabling Act process.[4]
Yet, for civil procedure scholars, Iqbal also marks a shift in our approach to the scholarly enterprise. Outside of the articles written to explain, critique, or support Iqbal,[5] civil procedure scholars leaned into different kinds of scholarship, employing varied modalities and approaches to more broadly interrogate what procedure is for, how it works in practice, and what reforms are possible. While Iqbal was not the sole reason for this shift in how civil procedure scholars approach their work, it made a meaningful contribution.
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.[6] The legal empirical movement had already made its way into civil procedure.[7] Still, Iqbal provided a rich opportunity for scholars not only to engage in empirical work but also to hone their ability to do that work constructively.
Second, Iqbal emboldened a burgeoning area of civil procedure scholarship focused on non-federal court procedure and adjudication.[8] More specifically, scholars increasingly focused their research on state courts. This response was, in part, spurred by some states maintaining their Conley-like pleading standards in the wake of Iqbal.[9] However, more importantly, Iqbal’s place in the move toward more restrictive federal procedures led many scholars to explore what state court processes might offer.
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.[10] Iqbal, along with other procedural cases such as Scott v. Harris, provided scholars with a vehicle to reflect a wider array of critical perspectives on procedural doctrine.[11]
The lessons of Iqbal are still unfolding. Doctrinally, scholars continue to unpack the implications for our courts and the civil justice system. But the work attempting to understand Iqbal is not the only way the case has impacted civil procedure scholarship. As this Essay argues, Iqbal, like other seminal procedural cases before it, also contributed to a shift in how scholars approach civil procedure scholarship. Its impact has extended well beyond pleading and plausibility and has helped define our modern wave of civil procedure scholarship.[12] This evolution could not have come at a better time. As we navigate the current era of civil procedure doctrine, confronting Iqbal and its part in the evolution of civil procedure scholarship is imperative to meeting this moment in our courts and our society.
I. The Empirical Evolution
Civil procedure scholarship has evolved or, more specifically, expanded to allow more scholars to embrace and tackle empirical questions about procedure, demonstrating that Iqbal’s impact has stretched beyond the doctrinal. When the Court decided Iqbal, the doctrinal modification of the pleading standard and the consequences for would-be litigants were complex, but the stark contrast between motions to dismiss pre- and post-Iqbal presented a crisp and digestible natural experiment for scholars to undertake. In response, civil procedure scholars did not just ask empirical questions; they attempted to answer them. Through the fifteen years and many studies following Iqbal, scholars, both collectively and individually, grew in their ability to empirically interrogate how procedure works.[13] This is a critical evolution for civil procedure scholars’ attempt to more acutely demonstrate the impact procedure has on our civil justice system and to promote better policy decisions.
The scope of empirical work in civil procedure and who is doing that work has expanded, with Iqbal as catalyst.[14] The empirical legal studies movement (ELS) emerged organically from the work of individuals within a constellation of academic and court-related organizations.[15] ELS, buoyed by both an annual conference and journal, became a force in the legal academy in the early 2000s.[16] ELS scholars’ social sciences training enabled them to conduct empirical research in law.[17] In other words, the work was interdisciplinary, bringing together legal scholars with training and academic credentials in economics, political science, sociology, and other fields.[18]
For a time, this social sciences specialization—both in the nature of the work and the individuals doing the work—persisted in civil procedure scholarship.[19] However, as David Engstrom detailed in his article The Twiqbal Puzzle and Empirical Study of Civil Procedure, that is no longer the case: Civil procedure scholars without Ph.D. credentials now regularly conduct empirical work.[20]
The number of civil procedure scholars engaged in empirical work specifically regarding Iqbal is notable. As of 2013, when Engstrom published his article on empirical studies following Iqbal, there were approximately twenty studies examining the impact of the case on pleading.[21] Since then, additional studies have shown a comprehensive commitment to understanding the effects of Iqbal and other procedural doctrines through empirical research.[22] For Iqbal, these studies reflect a journey through various types of empirical research that has informed our understanding not only of Iqbal’s impact but also of how to best engage in empirical procedural work in general.
Patricia W. Hatamyar published the first notable empirical study following the Court’s Iqbal decision. Her law review article The Tao of Pleading: Do Twombly & Iqbal Matter Empirically? relied on a dataset of federal district court opinions available on Westlaw.[23] Randomly selecting from the dataset her search produced, Hatamyar coded over one thousand district court cases to determine essential characteristics such as the type of claim at issue and whether a district or magistrate judge decided it.[24] Her study results demonstrated a meaningful shift in motion-to-dismiss grant rates, with a 46% grant rate under Conley v. Gibson and a 56% grant rate under Iqbal.[25]
Hatamyar’s most notable finding, though, was the difference in grant rates depending on the nature of the claim. Her study found that, in tort cases, the grant rate went from 40% under Conley to 52% under Iqbal.[26] Meanwhile, in what she termed “civil rights cases,” the grant rate increased from 50% under Conley to 58% under Iqbal,[27] and in what she termed “constitutional civil rights cases,”[28] the grant rate increased from 50% under Conley to 60% under Iqbal.[29] From her results, Hatamyar surmised that her study “provides some evidence that district courts are taking . . . Iqbal to heart” and that the case (with Twombly) was “poised to have [its] greatest impact on civil rights cases.”[30]
Running somewhat counter to Hatamyar’s findings, the Federal Judicial Center (FJC) completed a study of grant rates following Iqbal.[31] This study reviewed motions to dismiss from twenty-three federal district courts in 2006 and 2010.[32] Notably, and unlike Hatamyar’s dataset, the FJC study included cases that Westlaw or Lexis did not otherwise capture.[33] In addition, while Hatamyar’s study included cases brought by pro se parties and prisoners, the FJC study excluded both.[34] While the FJC study, like Hatamyar’s, found an overall increase in grant rates, it also found that there was no statistically significant increase in the rate of granting motions to dismiss without leave to amend, even in civil rights and employment discrimination cases.[35] In other words, the study found that “[t]here was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case.”[36]
Following a spate of studies similar to Hatamyar’s and the FJC’s—those looking at grant rates both before and after Iqbal—commentators began to critique and reframe this type of methodological approach. In his Note, Locking the Doors to Discovery? Assessing the Effects of Twombly & Iqbal on Access to Discovery, Professor Jonah Gelbach noted that any change in pleading standards might change the number of motions granted under Rule 12(b)(6) for reasons beyond judicial behavior.[37] In other words, determining the impact of Iqbal on plaintiffs’ pleadings and defendants’ motions to dismiss requires an understanding of multiple variables. Gelbach’s contribution was to design a study that might better account for the confounding effects of inquiring into the impact of Iqbal using grant rates alone.[38] In essence, Gelbach’s methodology attempted to capture how parties may have changed their behavior in response to Iqbal by, for example, not filing a complaint they might have previously filed.[39] Without accounting for these behavioral changes, the FJC study may have understated Iqbal’s impact.[40]
Using the FJC data, Gelbach created a theoretical model that allowed him to estimate the lower bound on three categories of cases. His study determined that Iqbal negatively impacted plaintiffs in at least 15.4% of cases involving employment discrimination claims and 18.1% of cases involving civil rights claims.[41] For plaintiffs with cases that did not involve civil rights, employment discrimination, or financial instruments, at least 21.5% of the cases were negatively affected.[42]
In 2017, William H. J. Hubbard, in The Effects of Twombly and Iqbal, further reflected on the studies done to date and embarked on another study of Iqbal’s impact.[43] Hubbard used two new datasets: one from the Administrative Office of the U.S. Courts, which included all federal cases filed from 2005 to 2013, and another from PACER, which consisted of docket sheets and complaints from a random sample of cases filed between 2005 and 2010.[44] Using these datasets, Hubbard attempted to isolate the causal relationship between the Court’s pleading decisions and the grant rates for motions to dismiss and found that the decisions had no major effect on dismissal rates.[45] In addition, Hubbard tested a series of hypotheses to determine which aspect of pleading (or pre-pleading) practice had changed in the wake of Iqbal.[46] He found that, while there was little to no evidence of major effects on dismissal rates, settlement rates, or filings, there was evidence of an increase in motion-to-dismiss filing rates and in the filing of amended complaints.[47]
In the aftermath of Iqbal, the dialogue between academics through empirical work has led to a refinement of empirical methods in civil procedure scholarship.[48] When David Engstrom wrote in 2013, he gently celebrated but also earnestly advised caution in empirical civil procedure research, critiquing the post-Iqbal work to date.[49] For example, Engstrom noted that reliance on datasets culled exclusively from Westlaw and Lexis created a sampling bias because judges may have altered their publication practices in response to the upheaval following Iqbal, thus skewing the understanding of how Iqbal impacted the grant rates for motions to dismiss.[50] Engstrom’s intervention and the conversation among the various articles written after Iqbal prompted civil procedure scholars to respond. For example, Alex Reinert’s article Measuring the Impact of Plausibility Pleading explicitly addressed Engstrom’s critiques of previous studies, adopted modifications in light of those critiques, and produced a grant-rate study that was responsive.[51] Notably, Reinert’s study still found a meaningful increase in grant rates post-Iqbal.[52]
The impact of this work stretches beyond Iqbal, though, with scholars like Gelbach questioning how civil procedure scholars conducting empirical work might better account for the “fact that litigation involves human beings, who not only are motivated, but also have the ability to react to policy changes that affect the implications of their actions—in a word, agency.”[53] By broadening the scope of how this work is approached, Gelbach challenges scholars to account for the complexity of the civil justice system. At the same time, scholars like Danya Reda remind us that empirical work without an understanding of the research question asked, the context, and the complexity of results can be used to justify actions that are not necessarily supported by that data, or at least not warranted by the data as understood by those using it.[54] What Engstrom, Reda, and Gelbach reinforce is that any empirical work in civil procedure requires care in forming the question asked, the reasons for asking that question, and a methodological approach that is responsive.[55]
Iqbal and the subsequent development of empirical work have helped improve how we conduct empirical research in civil procedure. Empirical evidence can help dispel harmful myths about procedure, but it can also, when analyzed improperly or misunderstood, reinforce destructive narratives. As more scholars assess how procedural rules and doctrines are actually working, the advances catalyzed by Iqbal will continue to benefit those endeavors.
II. The State Court Evolution
Civil procedure is predominantly taught in law school through a federal lens, with occasional acknowledgments that state courts also have separate procedural systems.[56] Before Iqbal, civil procedure scholarship similarly fetishized the federal by focusing on federal procedure and the Supreme Court of the United States.[57] In the fifteen years following Iqbal, however, civil procedure scholarship has turned its attention significantly more toward states, their courts, and their procedures.
This scholarly endeavor has been pursued on two primary tracks. The first track focuses attention on state procedures and how they might diverge from and potentially inform the federal procedural apparatus. The second track undertakes the study of the state-level civil justice system, where the bulk of civil cases are litigated. Like the empirical trend discussed above, this trajectory is not solely due to Iqbal but was certainly informed and influenced by the case.
Within the first track, Roger Michalski was the first to examine how state courts might respond to Iqbal.[58] His article was spurred by the Washington Supreme Court’s rejection of the Iqbal standard in its state court system and by the fact that, at the time of his article, there was a possibility that the twenty-six state courts that had fashioned their pleading systems to align with the federal rules might similarly diverge.[59] Some state courts did indeed stray from the federal pleading rules, but many did not.
This split led to a fascinating line of scholarship that began to explore the interplay between federal and state procedural systems in greater depth. For example, Scott Dodson, in The Gravitational Force of Federal Law, assessed how several state supreme courts followed the plausibility pleading regime even when they were not required to do so.[60] Zach Clopton added to this discussion in Procedural Retrenchment and the States, noting that nineteen state courts had rejected the plausibility standard for pleading.[61] Dodson and Clopton utilized procedural cases, including Iqbal, to explore how states respond to federal procedural change, to establish the influence federal procedure has on state courts, and to inquire into the potential for state procedures to provide different avenues for parties seeking civil relief.[62]
This scholarship has paved the way for other scholars to explore the intersection of state court procedures, federal court procedures, and access to the courts. For example, Diego Zambrano’s article The States’ Interest in Federal Procedure builds on Dodson’s and Clopton’s analysis by arguing that states do indeed have a strong interest in federal procedure, even when those procedures do not directly govern their state courts.[63] Zambrano examines how multiple states have participated in the evolution of federal procedure by filing state amicus briefs in key Supreme Court cases, including Twombly, the precursor to Iqbal.[64] He also catalogs a variety of state court decisions and legislation that push back against restrictive federal trends such as the plausibility pleading requirement.[65] Marcus Gadson also expands on this work in Federal Pleading Standards in State Court, arguing that state courts should reject plausibility pleading not just as a matter of policy but because such a standard will often violate rights outlined in state constitutions.[66] The result of this kind of scholarship is that state court procedures are no longer in the shadows; instead, they are a key focus of modern civil procedure scholarship.
Along with the attention to state procedures compared to federal procedures, the number of scholars focused on state court litigation has increased. While work on state court litigation existed before Iqbal was decided, it has intensified as procedural scholars have shifted their focus to the place where most civil litigation occurs: our state court system.[67] The authors doing this work shortly after Iqbal was decided include Anna E. Carpenter, Jessica Steinberg, Colleen F. Shanahan, and Alyx Mark. Their article Studying the New Civil Judges kicked off a broader exploration of state court procedures that invited other scholars to begin asking questions about how state courts work.[68] The authors “argue that ignoring the routine, daily work of our nation’s courts has left a massive gap in our understanding of the civil justice system, a system that has real effects on the people whose lives and well-being are at stake within it.”[69] Citing a “federal court bias in legal scholarship,” they call for a “research agenda focused on state courts and the judges who manage and work within them,” a call to which many procedural scholars have since responded.[70]
Scholars such as Daniel Wilf-Townsend,[71] Justin Weinstein-Tull,[72] Tonya Brito,[73] Pamela Bookman,[74] and Kathryn Sabbeth,[75] among others, have contributed to a growing dialogue about developments in our state-based civil justice system. As discussed in the next Section, the focus on state procedures—and pleading specifically—has allowed civil procedure scholars to illustrate how bespoke pleading rules might entrench existing inequalities. By analyzing specialized pleading rules for landlords in eviction proceedings, for example, civil procedure scholars could more powerfully connect procedure to inequity. The combination of scholars already exploring these state procedures and Iqbal opening new questions about pleading expanded the number of civil procedure scholars examining what state court procedures might teach us about our civil justice systems.
This new scholarship highlighted the significance of courts and prompted policymakers and organizations to look beyond the federal system to consider the procedures that should prevail in state courts. For example, the American Law Institute (ALI) is in the midst of a project designed to address some of the challenges state courts face when adjudicating “high-volume, high-stakes, low-dollar-value civil claims.”[76] The claims contemplated include debt collection and evictions, which are prevalent in state court cases and significantly impact individuals’ lives.[77] Initiated in 2022, the ALI project is currently working on suggested procedural changes and other best practices for those courts.
As a result of these two tracks of scholarship, the field of civil procedure has expanded its breadth. Scholars are now invited to consider how state courts might respond to federal procedural changes, how states participate in the civil justice system, and how state courts are the locus of most people’s experiences with civil courts. This vital expansion was spurred, in part, by the decision in Iqbal, which prompted scholars to expand their focus beyond federal procedure and into the realm of state courts and their procedures.
III. The Critical Perspectives Evolution
The final scholarly evolution that has taken a deeper hold following Iqbal is engagement with critical perspectives. The resulting scholarship centers systemic inequality using a variety of approaches, including, but not limited to, critical legal theories.[78] Marc Galanter’s pathbreaking work on the haves and have-nots of civil procedure provided a bulwark for the argument that procedural design could—and did—produce inequities.[79] Building on Galanter’s scholarship, scholars drew attention to the serial restrictions that defined procedural doctrine from the 1980s to the early 2000s, with much of the critique framed in terms of access to justice.[80] Scholarship following Iqbal and plausibility pleading indeed continued that trend by fitting Iqbal into the narrative of how changes to the Federal Rules of Civil Procedure and decisions by the Supreme Court had incrementally closed the courthouse doors.[81] However, what was often left unexamined in that scholarship was how these restrictive procedures affected specific populations and types of claims. Iqbal, along with a handful of other procedural cases decided in the same time frame, provided scholars with an effective vehicle for highlighting various critical perspectives.
A standout in this regard is Shirin Sinnar’s beautiful article The Lost Story of Iqbal.[82] In that article, Sinnar humanizes Javaid Iqbal,[83] exposes the racism latent in both the majority and dissenting Iqbal opinions,[84] and corrects the record as to how the U.S. government and law enforcement responded in the wake of September 11.[85] Her article is a tour de force, and for many civil procedure professors, it has become a necessary addendum to Iqbal.[86] Sinnar’s article has served as an inspiration to many civil procedure scholars who were eager to bring a critical perspective to their scholarship, but had not yet found the grounding to do so.
This is not to say that critical work had not been done in civil procedure before Sinnar’s article. To the contrary, many critical race theory (CRT) scholars were deconstructing civil procedure long before Iqbal was decided and continued to do so afterward. For example, Derrick Bell’s Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, an oft-cited CRT paper, was about civil procedure in the context of class actions.[87] Roy L. Brooks likewise brought a critical race lens to his work in civil procedure as early as 1998 with his book Critical Procedure.[88] Richard Delgado[89] and Eric Yamamoto[90] also made significant contributions to civil procedure scholarship drawing on critical race theory principles. And, in 2003, Dorothy Brown published Critical Race Theory: Cases, Materials, and Problems, which offered a critical race perspective on all first-year law topics, including civil procedure.[91] Collectively, these scholars made a significant impact through their work yet still represented a small percentage of civil procedure scholarship.
In addition, even when critical race theory was not applied to civil procedure scholarship, many scholars still brought a generally critical perspective to their work before Iqbal. Scholars like Judith Resnik have long carried the mantle of feminist perspectives on procedure, and her work has consistently been anchored in questioning the democratic virtues of civil procedure, particularly through the lens of access to the courts.[92] Many other scholars have similarly expressed their criticism of civil procedural reforms, or lack thereof, through an access-to-justice standpoint.[93] This is not a surprising perspective to bring to bear. After all, a primary motive for the adoption of the Federal Rules of Civil Procedure in 1938 was to make courts more accessible.[94]
Following Iqbal, though, scholars began to aim their critiques more precisely. Benjamin Spencer defined what he termed a restrictive ethos in his 2010 article The Restrictive Ethos in Civil Procedure.[95] Counter to the liberal ethos that had defined the adoption of the Federal Rules of Civil Procedure and civil procedure doctrine through the 1950s and ’60s, the restrictive ethos of civil procedure undergirded changes to our federal procedural doctrine such as the summary judgment trilogy of cases,[96] sanctions under Rule 11,[97] and repeated efforts to restrict discovery.[98] When Spencer published his article, the most recent restrictive procedural shift to have occurred was none other than Iqbal.[99]
Spencer’s focus on the restrictive procedural changes that had been made to date was not necessarily new, as other scholars had observed a similar pattern. What Spencer did differently in his article was to name those most impacted by this procedural turn. More specifically, he noted that members of “out-groups” were most impacted.[100] Borrowing from Yamamoto’s work, Spencer explained that “out-groups” were “‘those outside the political and cultural mainstream, particularly those challenging accepted legal principles and social norms. . . . [T]hose raising difficult and often tenuous claims that demand the reordering of established political, economic and social arrangements, that is, those at the system’s and society’s margins.’”[101] He further argued that “procedure’s overarching, unified goal is to facilitate and validate the substantive outcomes desired by society’s dominant interests,” and that “procedure’s veneer of fairness and neutrality maintains support for the system while its restrictive doctrines weed out disfavored actions asserted by members of social out-groups and ensure desired results.”[102] In other words, civil procedure, though cast as neutral, was in fact designed to entrench existing inequities.
Following Spencer’s article, more scholars began to state the quiet part out loud: Civil procedure is not immune to bias. Scholars began to speak in clearer terms about who in the out-groups, to use Yamamoto’s and Spencer’s phrase, were most impacted.[103] This candidness appeared in scholarship on multidistrict litigation,[104] class actions,[105] the federal civil rulemaking process,[106] indigent litigation,[107] and even the entire enterprise of procedural reform.[108] In addition, in 2018, a group of editors initiated a project on critical procedure, bringing together essays by over thirty authors highlighting critical perspectives on all aspects of civil procedure.[109] By the time of George Floyd’s murder and the racial reckoning that followed, the groundwork had been laid for a deeper exploration of how procedural doctrine was far from neutral and how its impact was differently experienced.[110]
That work has continued in earnest, with scholars at all stages of their careers asking questions about how civil procedure and courts are influenced by factors such as race, gender, sexual orientation, physical or mental ability, socioeconomic status, and age. Bridging the empirical and critical lessons discussed in this essay, scholars like Stephen B. Burbank and Sean Farhang have analyzed pleading decisions in the wake of Iqbal through the lens of the gender and race of the deciding judges, among other factors.[111] Similarly, new scholars, like Masai McDougall, have argued for the collection of “demographic data in surveys of American litigants on their experience in civil court to provide a meaningful starting point to address a likely bias that favors the consolidation of political and economic power.”[112] Judith Resnik has continued to ask the difficult questions about procedure and to challenge any essentialism or malaise that might prevail in this moment.[113] And, finally, scholars like Portia Pedro are challenging our entire discipline to think more deeply about how “civil procedure affects Black people and other marginalized groups” in our “thinking, teaching, [and] writing.”[114] Failing to do so, Pedro argues, means that “we are likely cultivating generations of lawyers, scholars, legal instructors, and judges who accept and promote the dominant white hegemonic view of procedure as neutral and we are marginalizing students who know better.”[115]
In short, Iqbal encouraged scholars to adopt a more comprehensive understanding of how our civil justice system operates. Built on a strong foundation of earlier work questioning the power of procedure, scholars have utilized cases like Iqbal to interrogate how civil procedure might differently impact historically marginalized populations. In a time when diversity has become a contested term, this lesson could not be more important or more deserving of our discipline’s collective attention.[116]
Conclusion
Civil procedure scholarship is in a constant state of evolution. Like other disciplines, it is responsive to the trends and questions of the times in which it is written. There are certain moments, however, that have a more pronounced impact on how the work evolves. Ashcroft v. Iqbal is one of those moments. The case marks a pivot in the trajectory of our civil procedure work. Iqbal is defined by its stark shift in the approach to pleading, its evident racial implications, and its distinct power dynamics. It is no surprise, then, that scholars responded to Iqbal with an increased focus on empirical work, state court procedures, and critical perspectives. This evolution and expansion in how civil procedure scholars approach their work is a welcome one. As we confront increased challenges to our systems and norms, the importance of process intensifies. The broader our perspectives and the more diverse our tools of inquiry, the better. While Iqbal will always be a case awash in controversy and disagreement, its place in the evolution of our work as civil procedure scholars might be a distinct—if not unique—bright spot. The case empowered civil procedure scholars to ask bigger questions, use different skills, and, hopefully, expand the influence of our collective scholarly enterprise.
Copyright © 2026 Brooke D. Coleman, Fredric C. Tausend Professor of Law, Seattle University School of Law. Deep thanks to Andrew Bradt, Jonah Gelbach, and the California Law Review editors for the opportunity to share my perspectives and participate in the “Iqbal at 15” Symposium. Thanks also to Seth Endo, David Marcus, Portia Pedro, Briana Rosenbaum, Pilar Margarita Hernández Escontrías, William Hubbard, and Elizabeth Porter for their insightful comments on earlier drafts.
[1]. 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citations omitted)).
[2]. 355 U.S. 41, 45–46 (1957) (stating that “the accepted rule [is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
[3]. Iqbal, 556 U.S. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).
[4]. Elizabeth G. Porter, Pragmatism Rules, 101 Corn. L. Rev. 123, 138 (2015) (“Nowhere does Iqbal refer to the Advisory Committee Notes or to any other aspect of the rulemaking process. The majority in Iqbal seems far more preoccupied with protecting the right of government officials to be free from the burden of litigation. In these cases, the Court is not approaching Rule 8 with the statutory tools that it employs in run-of-the-mine cases interpreting a legislative text. Instead, in the classic common-law manner, the Court canvasses precedent and scholarship, policy and (its view of) purpose, to arrive at a new, twenty-first century pleading norm—plausibility.” (footnotes omitted)); Brooke Coleman, Janus-Faced Rulemaking, 41 Cardozo L. Rev. 921, 939–40 (2020) (“This is janus-faced rulemaking. The Committee said one thing: Rule 8 did not require an amendment. At the same time, it did another: eliminated the forms and implicitly changed Rule 8. Yet, while these themes come into full relief following Iqbal, they are not unique to that period. There are other examples where the Committee, under the pressure of the themes that inform modern rulemaking, seems to say one thing while it does another.”). Some commentators have even argued this pleading standard was unconstitutional. See, e.g., Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 Minn. L. Rev. 1851, 1867–68 (2008).
[5]. According to Westlaw, Iqbal is mentioned in 4,824 law review articles. Westlaw, +“Iqbal”, 4,824 results (Mar. 10, 2026) (on file with the California Law Review) (filtered by “Secondary Sources”, “Law Reviews & Journals”). For court cases, Twombly has been cited over 402,000 times, while Iqbal has been cited over 383,000 times. Westlaw, +“Bell Atl. Corp. v. Twombly, 550 U.S. 544”, 402,086 results (Mar. 10, 2026) (on file with the California Law Review) (KeyCite citing references filtered by “Cases”); Westlaw, +“Ashcroft v. Iqbal, 556 U.S. 662”, 383,631 results (Mar. 10, 2026) (on file with the California Law Review) (KeyCite citing references filtered by “Cases”). For ease, I will refer to plausibility pleading and any scholarship or cases addressing it as being linked to Iqbal, but note that the Court fashioned its plausibility rule through both Twombly and Iqbal.
[6]. See Theodore Eisenberg, The Origins, Nature, and Promise of Empirical Legal Studies and a Response to Concerns, 2011 U. Ill. L. Rev. 1713, 1715–19 (2011); David Freeman Engstrom, The Twiqbal Puzzle and Empirical Study of Civil Procedure, 65 Stan. L. Rev. 1203, 1206 (2013).
[7]. See Eisenberg, supra note 6, at 1720, 1720 n.38; Engstrom, supra note 6, at 1206.
[8]. See infra Part II.
[9]. See Roger Michael Michalski, Tremors of Things to Come: The Great Split Between Federal and State Pleading Standards, 120 Yale L.J. Online 109, 109 (2010), https://yalelawjournal.org/essay/tremors-of-things-to-come-the-great-split-between-federal-and-state-pleading-standards [https://perma.cc/6WGG-A79N] (noting that the Washington Supreme Court was the first state supreme court to diverge from the federal pleading standards and the “first state supreme court post-Iqbal to abandon the ideal of national procedural uniformity over the contentious issue of plausibility pleading”).
[10]. See Judith Resnik, Whither and Whether Adjudication?, 86 B.U. L. Rev. 1101, 1102, 1126 (2006); Judith Resnik, A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts and Arbitrations, 96 N.C. L. Rev. 605, 611 (2018); Judith Resnik, Revising the Canon: Feminist Help in Teaching Procedure, 61 U. Cin. L. Rev. 1181, 1183–84 (1993); Judith Resnik & David Marcus, Inability to Pay: Court Debt Circa 2020, 98 N.C. L. Rev. 361, 363, 368 (2020); Who Pays? Fines, Fees, Bail, and the Cost of Courts ii (Judith Resnik, Anna VanCleave, Kristen Bell, Skylar Albertson, Natalia Friedlander, Illyana Green & Michael Morse eds., 2018), https://law.yale.edu/sites/default/files/area/center/liman/document/liman_colloquium_book_04.20.18.pdf [https://perma.cc/P9UE-PKQV]; Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court’s Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 Ohio St. L.J. 95, 159–62 (1988); Jeffrey W. Stempel, Contracting Access to the Courts: Myth or Reality? Boon or Bane?, 40 Ariz. L. Rev. 965, 992–95, 1000 (1998); Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. Rev. 982, 989–91, 1074–77 (2003); Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 974 (1987); Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 9–12 (2010). But see Roy L. Brooks, Critical Procedure (1998); Roy L. Brooks, Conley and Twombly: A Critical Race Theory Perspective, 52 How. L.J. 31, 34–35 (2008); Richard Delgado, Chris Dunn, Pamela Brown, Helena Lee & David Hubbert, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L. Rev. 1359, 1359–61, 1389–91 (1985); Eric K. Yamamoto, Efficiency’s Threat to the Value of Accessible Courts for Minorities, 25 Harv. C.R.-C.L. L. Rev. 341, 344 (1990); Eric K. Yamamoto, Critical Procedure: ADR and the Justices’ “Second Wave” Constriction of Court Access and Claim Development, 70 SMU L. Rev. 765, 777–80 (2017); Dorothy Brown, Critical Race Theory: Cases, Materials, and Problems 94–115 (4th ed. 2023).
[11]. Scott v. Harris, 550 U.S. 372 (2007).
[12]. See Stephen N. Subrin & Thomas O. Main, The Fourth Era of American Civil Procedure, 162 U. Pa. L. Rev. 1839, 1841, 1843–48 (2014) (positing that “we are in the midst of what should be labeled a new era of civil procedure—the fourth in the history of American civil procedure,” one that is distant from the notice pleading, flexible procedure, and trial-based system of the third era). Similarly, the current wave of civil procedure scholarship is responsive to this shift.
[13]. See, e.g., Alexander A. Reinert, Measuring the Impact of Plausibility Pleading, 101 Va. L. Rev. 2117, 2134–36 (2015) (cataloguing and responding directly to David Engstrom’s critiques of his and other scholars’ studies of Iqbal’s impact).
[14]. See Engstrom, supra note 6, at 1206.
[15]. Eisenberg, supra note 6, at 1715.
[16]. Id. at 1718.
[17]. Id. at 1719.
[18]. Id.
[19]. See Engstrom, supra note 6, at 1206.
[20]. Id.
[21]. Id. at 1204 n.7. For ease, I will name only Iqbal when referencing the Court’s modern pleading doctrine. Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009). That doctrine necessarily includes Twombly as well. Id.
[22]. See, e.g., Benjamin Sunshine & Víctor Abel Pereyra, Access-to-Justice v. Efficiency: An Empirical Study of Settlement Rates After Twombly & Iqbal, 2015 U. Ill. L. Rev. 357, 387 (2015) (finding that the overall settlement rate increased following Twombly and Iqbal); Reinert, supra note 13, at 2145–47 (finding that Iqbal significantly increased dismissal rates, especially in civil rights and employment cases); Jonah B. Gelbach, Material Facts in the Debate over Twombly and Iqbal, 68 Stan. L. Rev. 369, 424 (2016) (studying nearly two thousand defense‑filed summary judgment motions in employment discrimination and contract cases and concluding that the study was inconclusive as to whether plausibility pleading improved case-quality filtering); Stephen B. Burbank & Sean Farhang, Politics, Identity, and Pleading Decisions on the U.S. Courts of Appeals, 169 U. Pa. L. Rev. 2127, 2132 (2021) (finding that appellate panels with women and non‑white judges are significantly more likely to rule in plaintiffs’ favor in civil rights cases). This trend stretches beyond Iqbal and pleading. See, e.g., Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters & Aaron Schaffer-Neitz, Secrecy by Stipulation, 74 Duke L.J. 99, 106–07 (2024) (using an original dataset of over 2.2 million federal cases to empirically demonstrate that stipulated protective orders are common and approved by judges without much scrutiny); Miyoko T. Pettit-Toledo, The Politics of Proportionality in State Civil Rulemaking, 101 Denv. L. Rev. 641, 645–46 (2024) (offering the first systematic fifty‑state empirical survey of how U.S. states responded to the federal proportionality amendments).
[23]. Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553, 584–85 (2010). Hatamyar acknowledged that this dataset was necessarily incomplete, as only a small percentage of district court opinions are available on Westlaw. Still, because PACER was not yet text searchable, researching all existing district court orders was “almost prohibitively resource-intensive.” Id. at 584 n.198.
[24]. Id. at 585, 589–90.
[25]. Id. at 602.
[26]. Id. at 607.
[27]. She defined these cases to include cases in which the plaintiff alleged federal constitutional violations, cases under Title VII, cases under the Age Discrimination in Employment Act, the Americans with Disabilities Act, or the Rehabilitation Act, and any other civil rights cases, including Title IX sex discrimination cases. Id. at 591–92, 607.
[28]. These cases are defined as the subset of civil rights cases which are alleged federal constitutional violations, including claims under 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, or Bivens claims. Id. at 591–92.
[29]. Id. at 608.
[30]. Id. at 624. Hatamyar updated her study in 2012. The updated study added 460 cases decided in the twelve months following Iqbal to her dataset. Patricia Hatamyar Moore, An Updated Quantitative Study of Iqbal’s Impact on 12(B)(6) Motions, 46 U. Rich. L. Rev. 603, 605 (2012). The study confirmed her earlier findings that motions to dismiss post-Iqbal had higher grant rates. Id. at 609. At least one other scholar’s studies also demonstrated an increase in motion-to-dismiss grant rates. See Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev. 1011, 1032 (2009) (examining Twombly’s impact on employment discrimination cases and finding an increase in grant rates, while acknowledging that the increase was not statistically significant); Joseph A. Seiner, Pleading Disability, 51 B.C. L. Rev. 95, 97, 118–19 (2010) (examining motions in cases alleging discrimination under the Americans with Disabilities Act and again finding an increase in grant rates for motions to dismiss that was not statistically significant); Victor D. Quintanilla, Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination, 17 Mich. J. Race & L. 1, 4–6 (2011) (utilizing social‑psychological research and empirical analysis of a set of federal complaints to demonstrate that Iqbal’s pleading standard significantly elevated dismissal rates for Black plaintiffs’ workplace race-discrimination claims).
[31]. Joe S. Cecil, George W. Cort, Margaret S. Williams & Jared J. Bataillon, Fed. Jud. Ctr., Motions to Dismiss for Failure to State a Claim After Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules vii (2011).
[32]. Id. at 5.
[33]. Id. at 2. The critique of using a dataset gleaned from only Westlaw or Lexis is that it misses the full picture of judicial decision-making due to selection bias. See Reinert, supra note 13, at 2134.
[34]. Cecil et al., supra note 31, at 6 n.10. The rationale for excluding all pro se cases, not just prisoner cases, is that pro se litigants are more likely to file complaints that will be dismissed because an attorney does not draft those complaints. See Reinert, supra note 13, at 2135.
[35]. Cecil et al., supra note 31, at vii. The FJC study drew criticism, most notably by Lonny Hoffman, who observed, among other things, that “[a] study comparing pre-Twombly and post-Iqbal filing rates and movant success rates does not tell us how many prospective claimants were deterred from seeking legal relief because of the Court’s more exacting pleading standard.” Lonny Hoffman, Twombly and Iqbal’s Measure: An Assessment of the Federal Judicial Center’s Study of Motions to Dismiss, 6 Fed. Cts. L. Rev. 1, 28 (2011). Another commentator, Scott Dodson, noted that the studies by both Hatamyar and the FJC used datasets that included the whole motion, not claims. Scott Dodson, A New Look: Dismissal Rates of Federal Civil Cases, 96 Judicature 127, 129–30 (2012). Both studies also failed to distinguish between claims dismissed for factual versus legal insufficiency. Id. Correcting for these two issues in his own dataset, Dodson’s study showed an overall increase in motion to dismiss grant rates (from 73.3% pre-Twombly to 77.2% post-Iqbal). Id. at 132.
[36]. Cecil et al., supra note 31, at vii.
[37]. Jonah B. Gelbach, Note, Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery, 121 Yale L.J. 2270, 2275–76 (2012). Gelbach articulated the following additional reasons: (1) defendants might file more motions to dismiss under the new pleading regime because they are more likely to be granted under that system; (2) plaintiffs might choose not to file a case they would have filed under the previous pleading rules, meaning that the number of motions to dismiss granted might shrink; and (3) all parties might change their settlement behavior because of the perceived gains or losses from the new pleading regime. Id. at 2276–77.
[38]. See id. at 2277.
[39]. Id. at 2276.
[40]. Hoffman, supra note 35, at 28 (“One difficulty in assessing Twombly and Iqbal’s effects is that a study comparing pre-Twombly and post-Iqbal filing rates and movant success rates does not tell us how many prospective claimants were deterred from seeking legal relief because of the Court’s more exacting pleading standard.”).
[41]. Gelbach, supra note 37, at 2278.
[42]. Id. at 2278–79. William H. J. Hubbard also approached the question of how to measure the impact of pleading changes on motions to dismiss. His article, Testing for Change in Procedural Standards, with Application to Bell Atlantic v. Twombly, did not account for Iqbal but instead used a dataset between 2006 and 2008. 42 J. Legal Stud. 35, 40 (2013). Hubbard’s methodology attempted to account for selection effects in litigation, and it also utilized a much larger dataset than previous studies (roughly thirteen thousand published district court opinions). See id. at 49–50. His study found “no support for the view that Twombly had a large effect” on motion-to-dismiss rates as of that time. Id. at 40. Alex Reinert approached the question from a different perspective by interrogating the policy reasons for a plausibility pleading standard—more specifically, whether such a pleading standard would more successfully filter out meritless cases. Alexander A. Reinert, The Costs of Heightened Pleading, 86 Ind. L.J. 119, 125–26 (2011). Reinert’s study evaluated cases filed between 1990 and 1999 to determine whether what he called “thinly pleaded cases” were meritless, finding that thin pleading did not correlate with lack of merit (at least to the extent settlement or a plaintiff prevailing at trial or summary judgment signified merit). Id. at 126, 137–38.
[43]. William H. J. Hubbard, The Effects of Twombly & Iqbal, 14 J. Empirical Legal Stud. 474, 478 (2017).
[44]. Id. at 480–81.
[45]. Id. at 493–94.
[46]. Id. at 494–509.
[47]. Id. at 509–11. Hubbard also found evidence of “potentially major effects on pro se plaintiffs,” meaning that their case outcomes do appear to have been impacted. Id. at 511.
[48]. See, e.g., Reinert, supra note 13, at 2129–42 (reviewing the methodological limitations of prior empirical studies and detailing a more comprehensive approach).
[49]. Engstrom, supra note 6, at 1240.
[50]. Id. at 1214–15. Engstrom noted other sampling bias issues. Id. at 1214 (“The resulting sampling bias possibilities are legion . . . .” (footnote omitted)). Engstrom also catalogued other pointed critiques beyond “sampling and methods,” including the failure to analyze the dismissal rates at the party level instead of the claim or order level and the behavioral concerns raised by scholars such as Gelbach. Id. at 1219–22, 1223–29.
[51]. Reinert, supra note 13, at 2129–38. For example, Reinert utilized a dataset gleaned from PACER, rather than Westlaw or Lexis, directly addressing Engstrom’s sampling bias concern. Id. at 2138–39.
[52]. For both pro se and counseled cases, Reinert found an 11% and 15% increase in grant rates, respectively. Id. at 2143–44.
[53]. Jonah B. Gelbach, Can the Dark Arts of the Dismal Science Shed Light on the Empirical Reality of Civil Procedure?, 2 Stan. J. Complex Litig. 223, 289 (2014) (“We ought to study the civil justice system as it is: composed of human beings who might well respond to incentives.”).
[54]. Danya Shocair Reda, Producing Procedural Inequality Through the Empirical Turn, 94 U. Colo. L. Rev. 899, 930 (2023) (“The way to know anything in today’s world is through quantitative metrics, and in the world of procedure, the members of the Advisory Committee are making a pitch for that role.”).
[55]. See, e.g., id. at 984–85.
[56]. Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. 1183, 1183 (2022) (“Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts.”).
[57]. See Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan & Alyx Mark, Studying the “New” Civil Judges, 2018 Wis. L. Rev. 249, 268–69 (2018).
[58]. See Michalski, supra note 9, at 109.
[59]. Id. at 110.
[60]. Scott Dodson, The Gravitational Force of Federal Law, 164 U. Pa. L. Rev. 703, 714–17 (2016) (noting that Massachusetts, Wisconsin, South Dakota, Maine, and Nebraska had followed the federal plausibility rule, while other state supreme courts, such as those of Tennessee and Minnesota, rejected the rule). Dodson’s key point in this discussion, however, was that even when state supreme courts rejected Iqbal’s plausibility pleading rule, they explained the reasoning for such a rejection. Id. at 716–17.
[61]. Zachary D. Clopton, Procedural Retrenchment and the States, 106 Calif. L. Rev. 411, 425–26 (2018).
[62]. Dodson, supra note 60, at 706 (“This Article’s central thesis is that something more than independent parallel conduct is afoot: federal law exerts a widespread gravitational pull on state actors.”); Clopton, supra note 61, at 415 (“This Article thus aims to reorient the conversation away from an exclusive focus on federal procedure and toward other avenues for access to justice and private enforcement.”).
[63]. Diego A. Zambrano, The States’ Interest in Federal Procedure, 70 Stan. L. Rev. 1805, 1809–10, 1821–22 (2018) (citing Iqbal, among other Supreme Court cases, as driving federal procedure into a restrictive mode and thus impacting states).
[64]. Id. at 1826–27. Zambrano’s survey found that states filed amicus briefs in twelve of the eighteen major procedure cases decided between 2007 and 2016. Id. at 1823. He found that every state had signed on to at least one of those briefs, while thirty states had signed on in five or more cases. Id. at 1823–24.
[65]. Id. at 1830–35.
[66]. Marcus Gadson, Federal Pleading Standards in State Court, 121 Mich. L. Rev. 409, 413–14 (2022).
[67]. State courts handle 98% of civil cases filed in the United States. Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan & Jessica K. Steinberg, The Field of State Civil Courts, 122 Colum. L. Rev. 1165, 1165 (2022).
[68]. See Carpenter et al., supra note 57, at 255. These scholars have written multiple articles building on this important work. See, e.g., Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg & Alyx Mark, Judges in Lawyerless Courts, 110 Geo. L.J. 509, 511–12 (2022) (presenting a multijurisdictional empirical study of judicial behavior in state civil trial courts); Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471, 1473 (2022) (theorizing the institutional role of state civil courts based on the mismatch between their dispute resolution design and the social needs of litigants); see also Andrew Hammond, The Democratic Turn in Procedural Scholarship, 42 Rev. Litig. 267, 281 (2023) (“Anna Carpenter, Alyx Mark, Colleen Shanahan, and Jessica Steinberg have written a series of articles pushing proceduralists to study the courts that serve far more people in the United States than the much-studied federal system.”). As Hammond points out, while very few procedural scholars focused on state courts before these researchers entered the conversation, Judith Resnik’s work often focused on state courts and how individuals fared in those tribunals for years before. See, e.g., Who Pays? Fines, Fees, Bail, and the Cost of Courts, supra note 10, at ii (exploring the economic challenges faced by judiciaries and litigants in the state justice system).
[69]. Carpenter et al., supra note 57, at 255.
[70]. Id. at 256–57.
[71]. See Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1708 (2022) (presenting a nationwide empirical study demonstrating that a small number of high‑volume corporate parties file the vast majority of civil cases in many state court systems against unrepresented defendants).
[72]. See Justin Weinstein-Tull, The Structures of Local Courts, 106 Va. L. Rev. 1031, 1031–32 (2020) (offering a structural account of how local courts operate); Justin Weinstein-Tull, Traffic Courts, 112 Calif. L. Rev. 1183, 1183–84 (2024) (presenting a comprehensive study of traffic courts and highlighting them as a key site through which to understand how everyday justice is administered in the United States).
[73]. See Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145, 148 (2020) (analyzing how state judges and government attorneys in state civil courts handle cases involving pro se poor litigants); see also Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243, 1244 (2022) (arguing that state civil courts facilitate racial capitalism through racialized devaluation, commodification, extraction, and dispossession).
[74]. See Pamela K. Bookman, Default Procedures, 173 U. Pa. L. Rev. 1419, 1424 (studying default judgments in state courts and offering potential procedural justice reforms) (2025); Bookman & Shanahan, supra note 56, at 1184–85 (arguing that scholars should discuss courts as lawyered and lawyerless).
[75]. See Kathryn A. Sabbeth, Eviction Courts, 18 U. St. Thomas L.J. 359,359–60 (2022) (examining U.S. eviction courts to argue that their procedures reflect a design prioritizing landlord efficiency and capital interests over tenants’ rights and housing stability).
[76]. High-Volume Civil Adjudication, A.L.I., https://www.ali.org/project/high-volume-civil-adjudication [https://perma.cc/4BJN-87ZK].
[77]. Id.
[78]. See Brooke Coleman, Suzette Malveaux, Portia Pedro & Elizabeth Porter, Introduction to A Guide to Civil Procedure: Integrating Critical Legal Perspectives 1, 1 (Brooke Coleman, Suzette Malveaux, Portia Pedro & Elizabeth Porter eds., New York Univ. Press 2022) (“The chapters represent voices of a diverse group of scholars . . . [and] draw on a range of literatures—from critical theory to social science, from doctrinal examination to empirical analysis. The critical perspectives expressed are as diverse as our authors and subjects. But they share an overarching goal: to shine a light on the ways in which civil procedure may privilege—or silence—voices in our courts.”).
[79]. Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc’y Rev. 95, 97–104 (1974) (arguing that repeat-player litigants utilize systemic advantages in the legal system to achieve favorable outcomes more consistently than “one-shotters”).
[80]. See, e.g., Stempel, A Distorted Mirror: The Supreme Court’s Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, supra note 10, at 159–62 (analyzing the Supreme Court’s treatment of summary judgment standards from an access-to-justice perspective); Stempel, Contracting Access to the Courts: Myth or Reality? Boon or Bane?, supra note 10, at 992–95, 1000 (arguing that procedural reforms to date had resulted in a contraction of access to justice); Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, supra note 10, at 989–91, 1074–77 (questioning the empirical basis for the “litigation explosion” and investigating whether restrictive changes to rules like summary judgment impinge on the core values of our civil justice system, including access).
[81]. See, e.g., Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, supra note 10, at 9–12. In assessing the impact of cases like Iqbal, Miller observed that “‘[s]peedy’ and ‘inexpensive’ should not be sought at the expense of what is ‘just.’ The latter is a short word, but it embraces societal objectives of enormous significance that should not be subordinated to the other two.” Id. at 130.
[82]. Shirin Sinnar, The Lost Story of Iqbal, 105 Geo. L. J. 379, 414–19 (2017).
[83]. Id. at 393–412 (drawing on critical race theory’s use of narrative and relying on in-person interviews she conducted with Iqbal in Pakistan to recount a compelling and very human history of a man who came to the United States in 1992 and built a life in the most banal sense of the word).
[84]. Id. at 389–93. With respect to the majority, Sinnar notes that “the opinion presented both factual assumptions and normative assertions about Iqbal and the post-9/11 detentions.” Id. at 389. More specifically, Sinnar notes that, based on the majority’s statement of the case, a reader might easily assume that most of the men arrested after September 11 were Arab and Muslim, an assumption she later dispels. Id. at 389, 416–17. She also notes that the Court leaves a reader with the impression that the investigation resulted in arrests of individuals who had some connection to the attacks or future terrorist threats, which she also shows was not the case later in the article. Id. at 389–90, 419–24. For the dissent, Sinnar pointedly notes that the dissenting Justices did nothing to “counter the majority’s presentation of Iqbal as essentially foreign or the arrests as obviously lawful.” Id. at 390–91. Sinnar notes that this is especially meaningful because these kinds of “omissions are notable against a tradition of Justices choosing to issue ‘heroic dissents,’ especially in cases on race.” Id. at 391. She further notes that the dissenting Justices did nothing to “humanize Iqbal, elaborate on the social and political facts of the detentions,” or otherwise “comment on the majority’s characterization of the detentions’ lawfulness.” Id.
[85]. Id. at 414–28. Sinnar relies on a report by the Justice Department’s independent Inspector General to tell a textured story of the detentions following September 11. Id. at 415. The revelations include a determination that the officials conducted arrests in an “indiscriminate and haphazard manner” by detaining many people who, “while possibly guilty of violating federal immigration law, had no connection to terrorism.” Id. at 422–23. In fact, not a single person detained in the arrests that swept up Iqbal was charged with any connection to the attacks, save three individuals later acquitted of all charges against them. Id. at 423.
[86]. In my course, when I teach pleading and combine it with a reading of Sinnar’s article, the discussion is markedly better than when I teach the cases without it.
[87]. Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 505–11 (1976).
[88]. Brooks, Critical Procedure, supra note 10. Brooks entered the discussion about plausibility pleading as well with his 2008 Howard Law Symposium article, Conley and Twombly: A Critical Race Theory Perspective, supra note 10, at 34–35.
[89]. See, e.g., Delgado et al., supra note 10, at 1359–61, 1389–91 (arguing that ADR may facilitate racial prejudice).
[90]. See, e.g., Yamamoto, Efficiency’s Threat to the Value of Accessible Courts for Minorities, supra note 10, at 344 (discussing retooling of procedural rules and the resulting efficiency in the system); Yamamoto, Critical Procedure: ADR and the Justices’ “Second Wave” Constriction of Court Access and Claim Development, supra note 10, at 777–80 (arguing that Supreme Court arbitration decisions constituted a “second wave” of alternative-dispute-resolution-driven procedural retrenchment).
[91]. See generally Dorothy Brown, Critical Race Theory: Cases, Materials, and Problems (1st ed. 2003). The current version counts Iqbal as a featured case. See Brown, supra note 10, at 94–115.
[92]. See, e.g., Resnik, Whither and Whether Adjudication?, supra note 10, at 1102, 1126 (arguing that the loss of adjudication threatens our ability to generate shared norms); Resnik, A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts and Arbitrations, supra note 10, at 611 (arguing for access to justice reforms that increase participation and transparency); Resnik, Revising the Canon: Feminist Help in Teaching Procedure, supra note 10, at 1183–84 (discussing gender-based procedural reforms); see also Resnik & Marcus, Inability to Pay: Court Debt Circa 2020, supra note 10, at 368 (examining economic barriers to access to justice); Who Pays? Fines, Fees, Bail, and the Cost of Courts, supra note 10, at 1 (compiling research on the impact of court debt on access to justice).
[93]. See sources cited supra note 80.
[94]. Subrin, supra note 10, at 974 (“The symptoms [complaining of excessive cost and delay] sound like what one would expect from an all-equity procedural system. The praise for modern litigation as a creator of new rights essential for a humane society is also consonant with this diagnosis.”); Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, supra note 10, at 5 (“The Rules were intended to support a central philosophical principle: the procedural system of the federal courts should be premised on equality of treatment of all parties and claims in the civil adjudication process. It should abjure technical decisionmaking and ‘promote the ends of justice.’”).
[95]. A. Benjamin Spencer, The Restrictive Ethos in Civil Procedure, 78 Geo. Wash. L. Rev. 353, 353–54, 358–59 (2010).
[96]. See, e.g., Miller, The Pretrial Rush to Judgment, supra note 80, at 1044–73 (discussing the impact of the 1986 summary judgment trilogy); Miller, From Conley to Twombly to Iqbal, supra note 81, at 10 (“The three decisions in one term sent a clear signal to the legal profession that Rule 56 provides a useful mechanism for disposing of cases short of trial when the district judge feels the plaintiff’s case is not plausible.”).
[97]. See, e.g., Melissa L. Nelkin, Sanctions Under Amended Federal Rule 11—Some “Chilling” Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1352 (1986) (criticizing the 1983 version of Rule 11 and proposing nonmandatory sanctions); Georgene M. Vairo, Commentary, Rule 11: Where We Are and Where We Are Going, 60 Fordham L. Rev. 475, 486 (1991) (arguing that Rule 11 had been used to limit access to federal courts); Stempel, Contracting Access to the Courts, supra note 80, at 994 (“[B]oth the 1983 Amendment and the 1993 Amendment represent increased procedural hurdles and risk for litigants, resulting in a net shrinkage of access to courts.”).
[98]. See, e.g., Elizabeth G. Thornburg, Giving the “Haves” a Little More: Considering the 1998 Discovery Proposals, 52 SMU L. Rev. 229, 243 (1999) (critiquing the then-proposed discovery amendments for their bias toward defendants); see also Spencer, supra note 95, at 368–69 (“The Class Action Fairness Act, the narrow view of personal jurisdiction in the Internet context, the discovery-scope amendment, and limitations on the discovery of burdensome electronically stored information all additionally evince the dominance of restrictiveness, and together reflect the culmination of a move toward restrictiveness begun with the counter-revolutionary changes to Rule 16, Rule 11, and summary judgment that appeared only a generation ago.”).
[99]. Spencer, supra note 95, at 368.
[100]. Id. at 369.
[101]. Id. at 370 (alteration in original) (quoting Eric K. Yamamoto, Efficiency’s Threat to the Value of Accessible Courts for Minorities, 25 Harv. C.R.-C.L. L. Rev. 341, 345 (1990)).
[102]. Id. at 369.
[103]. See, e.g., Brooke D. Coleman, The Vanishing Plaintiff, 42 Seton Hall L. Rev. 501, 503 (2012) (“There are two basic factors that define the vanishing plaintiff: (1) her economic status and (2) her existence outside of social norms. Where a plaintiff is uniquely economically disadvantaged such that she cannot afford effective representation, and/or where a plaintiff is outside of mainstream conceptions of gender, sexuality, race, and/or culture, she becomes a vanishing plaintiff.”).
[104]. Elizabeth Chamblee Burch, Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67, 79–81 (2017) (presenting empirical evidence demonstrating that a small cohort of repeat‑player lead plaintiffs’ lawyers control MDLs); see also Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 N.Y.U. L. Rev. 71, 71–72 (2015) (arguing that MDL transferee judges have substantial power to appoint lead counsel and steer private settlements but are not able to appropriately oversee them); Brooke D. Coleman, A Legal Fempire?: Women in Complex Civil Litigation, 93 Ind. L.J. 617, 637 (2018) (“In sum, the elite practice of multidistrict litigation—from the judges to the attorneys—is slowly changing to include more white women, but it is failing to include women of color. There may be lessons from women’s experiences in complex litigation, but there is certainly more work to be done.”).
[105]. Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L.J. 1531, 1535 (2016) (“But nowhere is the gap more glaring than in the civil docket, where class actions brought by or on behalf of low-income consumers and employees are on the verge of disappearing.”); Suzette Malveaux, A Diamond in the Rough: Trans-Substantivity of the Federal Rules of Civil Procedure and Its Detrimental Impact on Civil Rights, 92 Wash. U. L. Rev. 455, 458 (2014) (“What is wrong is when the burden falls consistently and more heavily on a distinct class of claims and claimants—as it does for employment discrimination and civil rights claims and their litigants. That wrong is exacerbated when the substantive claims and their proponents are those society has decided—as a policy matter—to afford special consideration and protection because of centuries of historical and modern subordination.”).
[106]. Brooke D. Coleman, #SoWhiteMale: Federal Civil Rulemaking, 113 Nw. U. L. Rev. 407, 408 (2018) (studying the demographic make-up of the federal civil rulemaking body and demonstrating that committee membership is predominantly white and male); see also Brooke D. Coleman, #SoWhiteMale: Federal Procedural Rulemaking Committees, 68 UCLA L. Rev. Discourse 370, 372–73 (2020) (conducting a similar study across all federal procedural rulemaking bodies and similarly demonstrating a white-male membership trend).
[107]. Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1481 (2019) (“Given that American civil justice largely relies on private enforcement of fundamental rights, we should not lose sight of procedural rules that only apply to poor litigants. Procedural rules may impinge on the ability of litigants to vindicate their claims, especially those arising under the Constitution and the laws of the United States. Mindful of those stakes, this Article works through the first rule that poor people encounter when they file a lawsuit in federal court.”).
[108]. Danya Shocair Reda, The Cost-and-Delay Narrative in Civil Justice Reform: Its Fallacies and Functions, 90 Or. L. Rev. 1085, 1128 (2012) (“This ambivalence is at the heart of the cost-and-delay narrative’s appeal. The persistent call to reform civil process to combat (undocumented) cost and delay serves as a proxy for a political struggle over enforcement of legal rights.”).
[109]. Work on this project began before the pandemic and was published in 2022. Coleman et al., supra note 78.
[110]. The Law and Political Economy movement is another crucial example of this trend. See LPE Project, https://lpeproject.org/ [https://perma.cc/F5FQ-LWZM]. Civil procedure scholars like Luke Norris are making significant contributions in this movement. See Luke P. Norris, Procedural Political Economy, 66 Wm. & Mary L. Rev. 1455, 1472–92 (2025) (exploring the decline of progressive political economy and the rise of neutrality in the drafting of the Federal Rules of Civil Procedure).
[111]. Stephen B. Burbank & Sean Farhang, Politics, Identity, and Pleading Decisions on the U.S. Courts of Appeals, 169 U. Pa. L. Rev. 2127, 2127 (2021) (finding “that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area”); see also Pettit-Toledo, supra note 22, at 645–47 (applying an empirical and critical approach to another area of civil procedure, discovery).
[112]. Masai McDougall, Understanding Bias in Civil Procedure: Towards an Empirical Analysis of Procedural Rule-Making’s Role in Continuing Inequality, 75 Rutgers U. L. Rev. 455, 461 (2023) (further arguing that “understanding how bias manifests itself in today’s Rules of Civil Procedure is critical for expanding the enjoyment of the activities associated with success in liberal society”).
[113]. Judith Resnik, Representing What? Gender, Race, Class, and the Struggle for the Identity and the Legitimacy of Courts, 15 L. & Ethics Hum. Rts. 1, 4 (2021) (“The recent and partial diversification of the bench is one way to perform legal commitments to some forms of equality. Yet at the very time when many jurisdictions are embracing such diversification, the institution of judging as a government service that welcomes all segments of the polity is at risk. Demographic diversity can serve as a distraction from focusing on the vulnerabilities of people of all classes and colors who lack the ability to bring claims to these newly-empowered judges, and it can mask the vulnerability of courts, besieged along with other government institutions committed to responsible public regulation.”).
[114]. Portia Pedro, A Prelude to a Critical Race Theoretical Account of Civil Procedure, 107 Va. L. Rev. Online 143, 162 (2021).
[115]. Id.; see also Portia Pedro, Theorizing Procedural Subordination 56 (July 28, 2025) (unpublished manuscript) (on file with author) (“And the manner of changes to pleading in Twombly and Iqbal made it so many do not recognize that a change occurred; recognize that the change mattered (meaning that it had a substantial effect); or recognize that the substantial effect is in conflict with the Rule 8, principles regarding pleading and motions to dismiss, and the fundamental goals of civil procedure.”).
[116]. For a collection of other civil procedure articles that highlight critical perspectives, see Benjamin M. Gerzik, Reforging the Master’s Tools: Critical Race Theory in the First-Year Curriculum, 76 SMU L. Rev. Forum 34, 65, 69 (2023) (listing in appendices a collection of articles addressing critical race theory and “adjacent” topics relevant to all of the first-year curriculum, including civil procedure).
