Twiqbal: Past, Present, and Future

Table of Contents Show

Introduction

Before Ashcroft v. Iqbal,[1] and its companion predecessor Bell Atlantic Corp. v. Twombly,[2] a pleading only had to provide proper notice and set forth claims that were legally sufficient.[3] If you pleaded a Title VII claim based on the fact that you were fired because of a heart tattoo on your wrist, you would be dismissed not because your facts were implausible (they may even be admitted) but because, as a matter of law, Title VII does not protect you.[4] If, instead, you alleged simply that you were fired because of your race, you would generally survive a motion to dismiss, no matter how implausible your allegations, because Title VII does prohibit such alleged conduct.[5]

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.[6] Now, merely alleging you were fired because of your race would not suffice without more factual allegations to plausibly show discriminatory motive.[7]

The two opinions were like earthquakes that rocked academics, practitioners, and judges. Academics suddenly had to tackle something very new, and a little strange, in federal pleading practice.[8] Judges were mystified at the new standard—one district judge said that, all of a sudden, she no longer knew for sure how to do something she had routinely done with rote familiarity in the past: decide a motion to dismiss for failure to state a claim for relief.[9] And practitioners changed their approaches to motions to dismiss: Plaintiffs pleaded more, and defendants moved more, with different arguments.[10]

Although much ink was spilled in the immediate aftermath of Twombly and Iqbal, those 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.

Commentary on Twiqbal

The contributors to The California Law Review Symposium “Iqbal at 15” offer a wealth of diverse perspectives on that reassessment. Together, their contributions journey through the past, present, and future of Twiqbal pleading.

***

In oral remarks during the symposium, Professor Marin Levy and Professor Andrew Bradt considered Twiqbal’s historical context, including the perspective of Charles Clark, the principal architect of the 1938 version of Rule 8. On the one hand, they posed, plausibility pleading can be seen as undermining Clark’s vision for Rule 8 by reintroducing technical aspects of pleading akin to the code-pleading model that Clark aimed to displace, especially the distinction between conclusions and facts. On the other hand, they pointed out, Clark also was partial to ideas captured by Twiqbal, including the flexibility of judges to use discretion to apply pleading standards flexibly in light of the nature of the case. They therefore concluded that perhaps plausibility pleading might be seen by Clark and his collaborators as a palatable development in response to the challenges of modern complex civil litigation.

Placing modern developments in their historical contexts can be a useful exercise for understanding how and why we have ended up where we are. But it is not clear that that history had anything to do with Twombly or Iqbal. Neither majority opinion seems at all concerned with the original intent of the rulemakers or the original meaning of Rule 8 in the 1930s. To the contrary, Twombly focuses on cases after Conley, along with descriptions of modern civil litigation.[11] Twombly mentions Clark only in an effort to distance the Court from a pleading opinion from then-Chief Judge Clark in 1957.[12] It is instead the Twombly dissent that details plausibility pleading’s historical break from Clark’s vision.[13] So it seems unlikely that this historical story introduced by Levy and Bradt can alone explain Twiqbal.

That said, an understanding of history can provide a helpful backdrop for understanding the significance of the Twiqbal decisions. The parallels between Iqbal’s endorsement of “judicial experience and common sense”[14] in assessing the plausibility of a complaint and the original rulemakers’ preference for the equity tradition’s emphasis on judicial discretion[15] mask deeper divisions. The original rulemakers envisioned judicial discretion as the handmaiden of justice by allowing more claims into court by de-technifying pleadings and by enabling judges to excuse pleading mistakes.[16] Clark himself had little patience for the use of pleading standards to close off court access.[17] He also endorsed expansive discovery, with judicial discretion to help guide and cabin discovery where needed.[18] In some ways, Twiqbal’s endorsement of judicial discretion works in the exact opposite direction. Twombly disparages the discretion of district judges to manage discovery costs effectively,[19] while Iqbal reduces the flexibility of accommodating different kinds of cases with different pleading standards by insisting that plausibility pleading applies to all Rule 8 cases, big or small.[20] And the very purpose of Twiqbal’s plausibility pleading is to act as a one-way ratchet against court access. So while Iqbal’s endorsement of judicial experience and common sense may be consistent, at a general level, with the spirit of 1930s judicial discretion, Twiqbal wields it in ways that would surely give Clark and his collaborators pause. Perhaps the historical takeaway, then, is that although the pull to preserve judicial discretion is timeless, each age has its own belief of how judges ought to exercise it.

***

Turning from Clark’s age to the modern age, Professor Sean Farhang’s contribution offers an empirical assessment of Twiqbal in the U.S. Courts of Appeals.[21] A key finding is a stark increase in opinions addressing conclusoriness after Iqbal, as compared to their frequency before Twombly, with a peak in 2014.[22] Another is that conclusoriness issues arise most frequently in civil rights and discrimination claims.[23] He also finds, surprisingly, that the presence of conclusoriness issues is significantly and positively correlated with plaintiff wins on appeal.[24]

The first two findings seem logically sensible. One might expect appellate courts to rely frequently on the newly approved conclusoriness standard after Twiqbal’s endorsement, and especially in the kinds of motive cases—like civil rights and discrimination—that both directly confront conclusoriness challenges and were precisely at issue in Iqbal. The win-rate finding is harder to explain intuitively, but perhaps, as Farhang suggests, the various players in the litigation matrix are adjusting their strategies.[25]

In my mind, though, Farhang’s most important finding is the unexpected way in which appellate courts are applying the Twiqbal test. Iqbal’s prescription of the new pleading standard delineates a clear, two-step test: first, disregard all conclusory allegations; and, second, assess the remaining nonconclusory allegations, using judicial experience and common sense, to determine whether they state a claim for relief that is plausible.[26] Iqbal’s directive divorces the “conclusory” step from the “plausibility” step. And the targets of the two steps are different: Conclusoriness is an allegation-specific assessment, while plausibility is a whole-claim assessment guided by judicial experience and common sense.[27]

Yet in coding for conclusoriness, Farhang found that appellate courts seem to be collapsing the two Twiqbal steps into one in ways inconsistent with Iqbal’s directive.[28] Indeed, he determined that “when the court determines that the allegations are conclusory, that entails a determination that the claim is not ‘plausible,’ or more commonly, that the claim must be dismissed for failure to state a claim, without use of any variant of the word ‘plausible.’”[29] If he is correct that “courts of appeals diverge sharply from the canonical two-step model of plausibility pleading,” that is an important finding.[30] Prior to Twombly, the lower courts often imposed heightened pleading standards seemingly inconsistent with the liberal pre-Twombly standard.[31] If Twiqbal was meant to endorse that past practice but with a clear approach, it is interesting that the lower courts are again charting their own path.

Some evidence suggests that the Supreme Court itself is prone to conflating the conclusory and plausibility prongs. Just last Term, the Court, in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, applied the plausibility test to a specific allegation as if it were applying the conclusoriness test: “[W]e cannot take the allegation here at face value, because Mexico has not said enough to make it plausible. . . . Mexico’s allegation on this score is all speculation; even on a motion to dismiss, it is not enough.”[32] Surprisingly, the Court did not use the term “conclusory” at all in its analysis. Perhaps fifteen years is less about becoming familiar with Twiqbal and more about forgetting what Twiqbal actually said. Farhang’s study may reveal a deeper, more gradual unsettling of Twiqbal’s pleading doctrine.

***

Twiqbal affected more than the lower courts; it roiled the academic world. Professor Brooke Coleman, in her beautifully written contribution, charts Twiqbal’s impact on academic scholarship.[33] She richly documents that Twiqbal has helped push procedural scholars to attend to empirics, to look to oft-overlooked state courts and state practice, and to engage in a more critical approach to federal procedure.[34] I agree on all fronts, and I am hopeful that these evolutions of our shared enterprise are for the better.

Her third takeaway, though—that a critical analysis reveals that seemingly neutral procedure belies preexisting power imbalances[35]—gives me pause, for no agent of procedure is more powerful than the U.S. Supreme Court. It exerts an outsized gravitational pull of attention,[36] and the current Court seems not only to relish that attention but, alarmingly, to believe it necessary for the nation.[37] The Court formally is charged with setting the procedural rules for the federal courts,[38] but it also can use its apex appellate position to force conformance with its own sensibilities on procedural policy.

The Court can use its position of power to rebalance inequities, as it did in Erie Railroad Co. v. Tompkins,[39] but when it uses its power to entrench inequities, as it arguably did with Twiqbal,[40] who will stand up to such judicial supremacy? Not other federal judges, and not the rulemakers either. Congresses and presidents past have, but with mixed success[41] and rarely with procedure. Will state courts? Hard to say—they feel the Court’s pull, too,[42] and litigants with power can avoid courts in resisting states.[43] Academics have the will, but it is not clear we have the power. Perhaps Professor Coleman’s spirited effort will rouse academic proceduralists, in our next evolution, to go beyond our noble but often solitary quest for empirical truth and normative balance to become the kind of procedural-justice warriors that cannot be ignored.

***

If the Supreme Court is not to be dissuaded from Twiqbal, the best locus for reform is the rulemaking committees. Professor Jonah Gelbach’s contribution proposes a rule amendment to solve the Twiqbal catch-22: Some plaintiffs with meritorious cases cannot plead sufficient facts without discovery but cannot get discovery without pleading those facts.[44] Earlier work in the immediate aftermath of Iqbal proposed cutting that Gordian knot with some kind of presuit or predismissal discovery,[45] but Gelbach advances the ball by offering specific language in light of lower court practices since Iqbal was decided.[46] Although the existing rules arguably allow for district courts to hold a motion to dismiss while allowing such discovery to proceed,[47] Gelbach notes that few district courts in fact do so, thus necessitating a rule amendment to provide both express authorization and uniformity in the lower courts.[48]

Gelbach’s rule proposal has two components. The first would require the defendant to admit, deny, or declare an inability to admit or deny claims that the defendant challenges on plausibility grounds.[49] The second would give plaintiffs in asymmetric-information cases the opportunity to request targeted, predismissal discovery.[50] He uses Twombly, Iqbal, and other cases to illustrate how his proposed rule would remedy the catch-22 with fairly minimal cost.[51]

To see his efforts bear fruit, Gelbach will need to convince more than me and you. An amendment proposal must pass through affirmative votes by the Civil Rules Advisory Committee, the Standing Committee, the Judicial Conference, and the U.S. Supreme Court, and it must avoid override by Congress.[52] All the while, the proposal will be subject to withering scrutiny by hundreds—sometimes thousands—of members of the bench and bar, who rarely agree on anything.[53] That deliberative, democratic process tends to lead to “caution, accommodation, compromise, and, at times, capitulation” by the rulemakers.[54] Many worthy proposals never even make it past the Advisory Committee.[55] Further, the Advisory Committee, whose membership is dominated by lower-court judges, also rarely adopts amendments that undercut a Supreme Court opinion,[56] which Gelbach’s proposal may be charged with by undermining the Court’s vision of Rule 8 as guarding against discovery expense.[57] Most proposals like Gelbach’s would have an uphill battle.[58] Perhaps his will transcend the predispositions of the rulemakers; but, regardless, Gelbach’s proposal helps illuminate the realities of Twiqbal, including the prospect that, even in the face of compelling solutions, plausibility pleading may be here to stay.

***

That is not to suggest that plausibility pleading is necessarily here to stay. Putting realities aside, Professor Sergio Campos’s contribution envisions a world without Twiqbal and considers whether the litigation system is resilient enough, especially with creative and savvy practitioners, to come up with useful and alternative solutions to the kind of in terrorem suits that Twiqbal’s fact-pleading standard was designed to curb.[59] Drawing on the Rosenberg-Shavell game-theory model, Campos reasons that an alternative to Twiqbal is a consistent defense-side refusal to settle.[60] The idea is straightforward: Defendants can stave off strike suits by litigating to a successful take-nothing judgment, and once they gain a reputation for not settling, plaintiffs will have no incentive to file meritless suits against them.[61]

Campos’s suggestion is a good one when both parties know that the suit is meritless and when reputational information is easily signaled to potential plaintiffs. Nuisance-value settlements, though, are likely to be fairly low under these circumstances because various shortcuts—early summary judgment, Rule 16, etc.—can save the defendant from significant pretrial costs.[62]

A stickier problem is a suit in which a plaintiff is unsure about merit because of asymmetric information. In Twombly, it is possible that the defendants did violate the antitrust laws; the plaintiff did not have information sufficient to distinguish an unlawful conspiracy from lawful market conduct, but, presumably, the defendants did.[63] And in Iqbal, the key was the defendants’ subjective intent, which the defendants knew but the plaintiff could only surmise.[64] Asymmetric-information suits like these inherently resist settlement because the plaintiff cannot accurately gauge the expected value without knowing more about the likelihood of liability.[65]

Would a defense strategy of always refusing to settle be effective for these suits? I’m not sure. Some will be meritorious, and thus the defendant will be saddled with the full litigation costs, the resulting adverse judgment, and the reputational hit to the effectiveness of the no-settle strategy.[66] The contingency model of financing affirmative litigation further allows repeat plaintiff attorneys to take considerable risks on low-merit suits for those few successful suits that go to judgment. Campos’s insights go beyond isolating one particular litigation strategy as an alternative to Twiqbal, which may or may not be a perfect substitute, by recognizing that the litigation marketplace is dynamic, and we ought not underestimate the creativity and prowess of attorneys to develop practice-based solutions for the problems of cost and delay that confront them.[67] Top-down reform of uniform pleading standards, by preempting that process for everyone, may do more harm than good.

***

This journey through Twiqbal’s teenage years leads me to two conclusions. First, the symposium papers and commentary show that the evolution of civil procedure involves a wide range of reagents. Professor Levy and Professor Bradt have alerted us to the insights of the visionaries of the past. Professor Farhang has shown that the lower courts are important players in the implementation, integration, and perhaps evolution of Twiqbal. Professor Coleman reveals the importance of academic research on pleading standards. Professor Gelbach has urged rulemaker attention to the task of setting workable pleading standards that integrate well with other rules. And Professor Campos has brought to light the role of practitioners in managing the costs and values of pleading standards—perhaps more effectively than the courts. So pleading reform involves the Supreme Court, yes, but also our procedural past, lower courts, academics, rulemakers, and practitioners—an array perhaps more diverse than for any other kind of legal reform.

Second, the presentations fundamentally question the necessity of the Supreme Court, in its adjudicative capacity, as the central agent of procedural reform. One-off cases like Twombly and Iqbal rarely present the Court with the descriptive, normative, and on-the-ground-practical insights, and lessons from the past, that academics, practitioners, lower-court judges, and rulemakers can provide. It seems to me that this panel has made a strong case for deemphasizing the role of the Supreme Court, in its adjudicative capacity, as an agent of procedural change.

Conclusion

“Iqbal at 15” reveals what is often overlooked about civil procedure reform: It is contentious and complicated. Two opinions that could be characterized as smallish adjustments in federal pleading are among the five most-cited opinions of all time[68] and have generated scores of academic conferences, countless CLEs, and several hearings in Congress and in the rulemaking committees. Twiqbal’s implications showcase how procedure connects the Supreme Court, the lower courts, the bar, the professoriate, and rulemakers both past and present. And that, perhaps more than the decisions themselves, is what makes the study of civil procedure so important.

Copyright © 2026 Scott Dodson, Horace O. Coil Chair in Litigation, Geoffrey C. Hazard Jr. Distinguished Professor of Law, and Director of the Center for Litigation and Courts, UC Law SF. Many thanks to Professor Andrew Bradt and Professor Jonah Gelbach for inviting me to participate in this symposium.

       [1]. 556 U.S. 662 (2009).

       [2]. 550 U.S. 544 (2007).

       [3]. See Conley v. Gibson, 355 U.S. 41, 45–47 (1957).

       [4]. See Vincent v. City Coll. of Chi., 485 F.3d 919, 923–24 (7th Cir. 2007) (holding that dismissal based on a lack of “[f]actual detail comes [after pleading]—perhaps in response to a motion for a more definite statement,” and “[d]ismissal under Rule 12(b)(6) is reserved for claims that do not state legally cognizable claims”).

       [5]. See Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (holding that “‘I was turned down for a job because of my race’ is all a complaint has to say”).

       [6]. Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678.

       [7]. See Squires v. Gallaudet Univ., No. 20-1348 (ABJ), 2021 WL 4399554, at *12–13 (D.D.C. Sep. 27, 2021).

       [8]. For some of my own commentary, see, for example, Scott Dodson, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors? (2013); Scott Dodson & Colin Starger, Mapping Supreme Court Doctrine: Civil Pleading, 7 Fed. Cts. L. Rev. 285 (2014); Scott Dodson, Comparative Convergences in Pleading Standards, 158 U. Pa. L. Rev. 441 (2010); Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 Va. L. Rev. Online 135 (2007).

       [9]. See Hon. Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the Lower Courts After Bell Atlantic Corp. v. Twombly, 41 Suffolk U. L. Rev. 851, 853 (2008).

     [10]. See Scott Dodson, A Closer Look at New Pleading in the Litigation Marketplace, 99 Judicature 11, 13–15 (2015); Scott Dodson, A New Look at Dismissal Rates in Federal Civil Cases, 96 Judicature 127, 134 (2012).

     [11]. See Twombly, 550 U.S. at 555–63.

     [12]. Id. at 561 n.7.

     [13]. Id. at 575 (Stevens, J., dissenting).

     [14]. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

     [15]. See Richard L. Marcus, Slouching Toward Discretion, 78 Notre Dame L. Rev. 1561, 1563 (2003). See generally Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987) (tracing the historical preference for equity in the Federal Rules of Civil Procedure).

     [16]. Subrin, supra note 15, at 963–64.

     [17]. Charles E. Clark (C.E.C.), Pleading Negligence, 32 Yale L.J. 483, 489–90 (1923); see, e.g., Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944) (Clark, J.) (refusing to dismiss a complaint because it lacked sufficient facts).

     [18]. Subrin, supra note 15, at 967–68.

     [19]. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007).

     [20]. Ashcroft v. Iqbal, 556 U.S. 662, 684–86 (2009).

     [21]. Sean Farhang, Conclusory Pleading on the U.S. Courts of Appeals After Iqbal: An Empirical Study, 114 Calif. L. Rev. 1077, 1078 (2026).

     [22]. Id. at 1097.

     [23]. Id. at 1099.

     [24]. Id. at 1102.

     [25]. Id. at 1102–03 (theorizing that defendants may have responded to the new weapon of plausibility pleading by pressing weaker arguments, thereby dampening their win rates).

     [26]. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

     [27]. Id. at 678–81 (applying plausibility to the “claim” and conclusoriness to specific “allegations”).

     [28]. Farhang, supra note 21, at 1090–92.

     [29]. Id. at 1090–91.

     [30]. Id. at 1110.

     [31]. Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 Tex. L. Rev. 1749, 1763–64 (1998); Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 446–47 (1986).

     [32]. 605 U.S. 280, 295–96 (2025).

     [33]. See Brooke D. Coleman, Iqbal & The Evolution of Procedural Scholarship, 114 Calif. L. Rev. 1009, 1010 (2026).

     [34]. Id. at 1012–21.

     [35]. Id. at 1021–22.

     [36]. See Scott Dodson, The Gravitational Force of Federal Law, 164 U. Pa. L. Rev. 703, 741 (2016).

     [37]. See Scott Dodson, The Supreme Court and Public Opinion, 111 Iowa L. Rev. 117, 147–49 (2025).

     [38]. 28 U.S.C. § 2072(a).

     [39]. See 304 U.S. 64, 74–75 (1938). For discussion, see generally Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (2000).

     [40]. See generally Stephen B. Burbank, Pleading, Access to Justice, and the Distribution of Power, Pound Civ. Just. Inst. (2010), https://ncji.org/wp-content/uploads/2019/04/2010-Pound-Forum-Burbank-Paper-1.pdf [https://perma.cc/ASB7-XVA3] (arguing that Twiqbal exacerbates power differentials between the “haves” and the “have-nots”).

     [41]. Dodson, supra note 38, at 127–44 (documenting presidential and congressional pushback against the Supreme Court).

     [42]. Dodson, supra note 37, at 712–17.

     [43]. See Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 Corn. L. Rev. 581, 593 (1998) (finding a win advantage for defendants that remove a case from state court to federal court); see also 28 U.S.C. § 1453(b) (giving defendants special authorization to remove certain class actions).

     [44]. Jonah B. Gelbach, Codifying Plausibility Discovery: A Proposal to Amend Rule 12, 114 Calif. L. Rev. 1029, 1044–51 (2026).

     [45]. See, e.g., Scott Dodson, New Pleading, New Discovery, 109 Mich. L. Rev. 53, 72–88 (2010); Edward A. Hartnett, Responding to Twombly and Iqbal: Where Do We Go From Here?, 95 Iowa L. Rev. Bull. 24, 33–36 (2010); Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65, 123–32 (2010).

     [46]. Gelbach, supra note 45, at 1031, 1054–56.

     [47]. See Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. Pa. L. Rev. 473, 503–15 (2010); Malveaux, supra note 46, at 106–22.

     [48]. Gelbach, supra note 45, at 1033–34.

     [49]. Id. at 1040–41.

     [50]. Id. at 1041–43.

     [51]. Id. at 1051–53.

     [52]. See Scott Dodson, The Making of the Supreme Court Rules, 90 Geo. Wash. L. Rev. 866, 872–78 (2022) (detailing the approval process); Catherine T. Struve, The Paradox of Delegation: Interpreting the Federal Rules of Civil Procedure, 150 U. Pa. L. Rev. 1099, 1103 (2002) (providing an overview of the rulemaking process).

     [53]. See Adam N. Steinman, The End of an Era? Federal Civil Procedure After the 2015 Amendments, 66 Emory L.J. 1, 19, 23 (2016) (noting more than 2,300 comments submitted in response to the 2015 discovery amendments); Robert G. Bone, “To Encourage Settlement”: Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure, 102 Nw. U. L. Rev. 1561, 1612 (2008) (calling rulemaking “increasingly polarized”); see also Richard Marcus, Rulemaking’s Second Founding, 169 U. Pa. L. Rev. 2519, 2535 (2021) (detailing the notice-and-comment process); Richard Marcus, Confessions of a Federal “Bureaucrat”: The Possibilities of Perfecting Procedural Reform, 35 W. St. U. L. Rev. 103, 104 (2007) (discussing the reform potential of the rulemaking process).

     [54]. Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 Va. L. Rev. 1, 9 (2018); see also A. Benjamin Spencer, Rule 4(k), Nationwide Personal Jurisdiction, and the Civil Rules Advisory Committee: Lessons from Attempted Reform, 73 Ala. L. Rev. 607, 615–16 (2022) (concluding that the Advisory Committee tends to shy away from policymaking).

     [55]. Cf. Scott Dodson, A Negative Retrospective of Rule 23, 92 N.Y.U. L. Rev. 917 (2017) (detailing major Rule 23 proposals that failed).

     [56]. See id. at 931–36 (hazarding reasons why the Committee is reluctant to undermine Court decisions).

     [57]. See Lonny Hoffman, Rulemaking in the Age of Twombly and Iqbal, 46 U.C. Davis L. Rev. 1483, 1511–31 (2013) (discussing the Committee’s consideration, and abandonment, of Rule 8 amendment proposals after Twombly and Iqbal).

     [58]. Cf. Richard D. Freer, The Continuing Gloom About Federal Judicial Rulemaking, 107 Nw. U. L. Rev. 447, 465–66 (2013) (noting that the Advisory Committee had a chance to respond to Twiqbal in its immediate aftermath but did not do so).

     [59]. See Sergio J. Campos, An Alternative to Iqbal: A Commitment Not to Settle, 114 Calif. L. Rev. 1057, 1060 (2026).

     [60]. Id. at 1072–75 (citing David Rosenberg & Steven Shavell, A Model in Which Suits Are Brought for Their Nuisance Value, 5 Int’l Rev. L. & Econ. 3 (1985); David Rosenberg & Steven Shavell, A Solution to the Problem of Nuisance Suits: The Option to Have the Court Bar Settlement, 26 Int’l Rev. L. & Econ. 42 (2006)).

     [61]. Id. at 1074.

     [62]. Robert G. Bone, Modeling Frivolous Suits, 145 U. Pa. L. Rev. 519, 538 (1997) (“[S]ettlement payments to frivolous plaintiffs should be individually quite small in magnitude . . . . ”).

     [63]. See Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962) (stating that in antitrust cases, “the proof is largely in the hands of the alleged conspirators”).

     [64]. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (noting that, in discrimination cases, “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes”).

     [65]. See Sean P. Sullivan, Why Wait to Settle? An Experimental Test of the Asymmetric-Information Hypothesis, 59 J.L. & Econ. 497, 499, 509–18 (2016) (surveying the theoretical literature and providing empirical evidence supporting the theory that asymmetric information inhibits settlement).

     [66]. Bone, supra note 63, at 572 (concluding that a fighting strategy would not work for information-asymmetry suits).

     [67]. See Campos, supra note 60, at 1069–75.

     [68]. See Lauren Mattiuzzo, Most-Cited U.S. Supreme Court Cases in HeinOnline: Part III, HeinOnline Blog (Sep. 26, 2018), https://home.heinonline.org/blog/2018/09/most-cited-u-s-supreme-court-cases-in-heinonline-part-iii/ [https://perma.cc/V2JB-XDLG]. As of March 2, 2026, according to Westlaw, Twombly has been cited by courts more than 400,000 times and Iqbal, more than 380,000. Westlaw, “Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)”, 402,560 results (Mar. 2, 2026) (on file with the California Law Review) (KeyCite citing references search filtered by “cases”); Westlaw, “Ashcroft v. Iqbal, 556 U.S. 662 (2009)”, 384,152 results (Mar. 2, 2026) (on file with the California Law Review) (KeyCite citing references search filtered by “cases”).