Before Ashcroft v. Iqbal, and its companion predecessor Bell Atlantic Corp. v. Twombly, a pleading only had to provide proper notice and set forth claims that were legally sufficient. But Twombly and Iqbal added a new factual-sufficiency standard to the pleading test: The nonconclusory allegations must set forth a claim to relief that is factually plausible in light of judicial experience and common sense. The two opinions were like earthquakes that rocked academics, practitioners, and judges. Although much ink was spilled in the immediate aftermath of Twombly and Iqbal, initial assessments, when the shockwaves were still being felt, could not fully capture the adjustments, practices, rulemaking angst, and doctrinal scaffolding that have developed with experience under the new standard. Fifteen years out, the iron has cooled, and expectations and understandings have settled. Now seems like an excellent opportunity for reassessment of Twiqbal’s more enduring legacies.

This Article presents the first systematic empirical study of “conclusory pleading” as a form of plausibility analysis in the U.S. courts of appeals following Ashcroft v. Iqbal, which critics argued would harm plaintiffs by creating excessive demand for information before discovery, and by increasing judicial subjectivity and ideology in decision-making in Rule 12(b)(6) decisions, particularly in civil rights litigation. Contrary to the canonical two-step account of plausibility pleading, courts of appeals almost never evaluate whether pleadings are conclusory fact by fact before proceeding to assess plausibility. Instead, in a one-step analysis they assess whether allegations, on the whole, are generally too conclusory to be plausible, or they render that judgment as to some particular key assertion in the context of the full complaint, without rejecting any other pleaded fact. Findings suggest that any increased judicial subjectivity after Twiqbal likely stems from aspects of plausibility doctrine other than conclusory pleading, shifts in case composition triggered by Twiqbal, or the broader politicization of pleading standards.

In this brief Essay, I want to focus on one aspect of the Iqbal decision that I have taught for many years and which, in my view, is useful for thinking about the policy implications of the heightened pleading regime that Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced: the goal of deterring nuisance suits. Both Iqbal and Twombly famously changed the standard of fact pleading for nonfraud claims. They shifted the standard from the “possibility” regime suggested by the “no set of facts” language of Conley v. Gibson to one of “plausibility,” where the factual allegations must be nonconclusory and have some “heft.” Much has been written about just what plausibility means and whether it changed anything, either in theory or in practice. Here, I want to focus on the motivation for the change in pleading standards, specifically the strain and expenditures put on defendants in civil litigation.

In 2007 and 2009, the Supreme Court upended the long-understood notice pleading framework, replacing it with the plausibility standard introduced in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal‍. I proceed from the assumptions that the pre-Twombly/Iqbal pleading standard was, roughly speaking, the one announced in Conley v. Gibson, and that courts now generally apply the framework set forth in Twombly and Iqbal—which instructs judges to determine whether the nonconclusory allegations in a complaint plausibly show entitlement to relief—when defendants move to dismiss for failure to state a claim. The raison d’être of this Essay is my proposal, in Part II, for an amendment to Rule 12. In substance, this proposal amounts to a rebooting of efforts in the period shortly after Iqbal’s decision, to promote limited pre-dismissal discovery as a means of blunting Twombly and Iqbal’s effects on cases involving asymmetric information.

Ashcroft v. Iqbal is a doctrinally instructive case. Iqbal teaches that the test for sufficient pleadings turns on the concept of plausibility.[1] It clarifies that the previous, more permissive understanding of a sufficient pleading under Conley v. Gibson is no more.[2]Iqbal also reflects the Supreme Court’s skepticism regarding district court judges’ ability to manage complex discovery disputes effectively.[3] And it demonstrates the Court’s complex view of its rulemaking role—changing procedural rules by opinion. Yet, for civil procedure scholars, Iqbal also marks a shift in our approach to the scholarly enterprise. This Essay will explore three scholarly trends that can be derived from the academy’s response to the Iqbal decision. First, a vast array of scholars responded swiftly to Iqbal, with many civil procedure scholars taking an empirical turn. Second, Iqbal emboldened a burgeoning area of civil procedure scholarship focused on non-federal court procedure and adjudication. Third and finally, Iqbal sharpened scholars’ critical focus on procedure. While a strong “access-to-justice” perspective existed in procedural scholarship before Iqbal, that work focused less intently on immutable characteristics such as race.

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Gold has intrinsic and cultural value, as well as technological utility, which underpin its steadfast demand on the global market. However, supplying gold comes at a substantial cost. Up to 20 percent of the world’s gold comes from artisanal and small-scale gold mining (ASGM), which is conducted by individuals and small enterprises with limited capital. Modern-day ASGM practices contribute to significant human health and environmental harms in disadvantaged communities and critical habitats. In particular, the use of mercury in gold mining gives rise to potent toxin poisoning in humans and contributes considerably to biodiversity and ecosystem degradation. Using Colombia as a case study, this Note analyzes the challenges in legally formalizing the small-scale gold mining industry and instituting protective regulation. It argues that continued emphasis on mercury elimination could still yet catalyze the adoption of sustainable gold mining practices. A mercury-mitigating approach in ASGM should be prioritized for two key reasons. Moving forward, to better mitigate mercury use in ASGM for countries like Colombia, policymakers should prioritize improving the efficiency of litigation and adjudication pathways for mining law violations, with an emphasis on protecting environmental defenders and other advocates.

Currently, there exists a “Grand Canyon” of judicial disagreement between the Fourth and Fifth Circuits on whether reverse search warrants (1) are searches under the Fourth Amendment and (2) are constitutional. This issue, on which state supreme courts are also divided, is now before the U.S. Supreme Court and awaiting decision as a question of Fourth Amendment jurisprudence. This Note proposes a different way of bringing clarity to this judicial disagreement. Instead of falling back on the “reasonable expectation of privacy” approach, courts should follow a property-based approach when it comes to questions of user data stored on the servers of internet companies. The property conception would provide a different path to resolve the disagreement by concluding that users have property-like protections in the data that reverse search warrants target and that this data qualifies as a “paper” under the Fourth Amendment, and thus the government must get a warrant to obtain this data.

A recent spate of major mass tort bankruptcies has renewed interest in Chapter 11 as a tool for resolving mass torts. Mass tort bankruptcy proponents argue that even highly solvent defendants should be able to take advantage of bankruptcy because it is a better procedural system for resolving mass tort controversies than multidistrict litigation (MDL). Bankruptcy has tools for delivering closure that MDL lacks, and closure in mass tort litigation creates value. Of course, mass tort defendants have no right to closure, but if the resulting surplus is shared, it can leave defendants and plaintiffs better off. This Article accepts the premise that bankruptcy can be an appropriate vehicle for resolving mass torts so long as it leaves tort victims no worse off than they would have been outside of bankruptcy. But it shows that when there is enough money to go around, tort claimants are unlikely to do better in bankruptcy than in MDL for two reasons. First, contrary to some claims, MDL has proven highly successful at resolving mass tort controversies. Second, if tort claimants are going to share in any surplus created by the move to bankruptcy, they need leverage to bargain for it. MDL enables tort claimants and their lawyers to aggregate on their own terms, while bankruptcy empowers the defendant to impose aggregate resolution unilaterally. As a result, bankruptcy is not an appropriate forum for resolving mass torts when the defendant is not in financial distress.

A genetic genealogy search for a match to a crime scene profile identifies eight relatives, one of whom is almost certain to be the perpetrator. A geofence warrant returns an anonymized list of four cell phones present at a series of bank robberies. A facial-recognition software analysis of a surveillance video generates fifteen persons of interest. By now, these scenarios are commonplace. Equally as commonplace are the two strands of case law and scholarship that have unfurled around them. What is missing, however, is an account of the middle. All too overlooked is a third tapestry, woven from both of these threads. Specifically, technological searches have dramatically increased both the frequency with which law enforcement confronts a closed universe of suspects rather than a single suspicious target, as well as the probability that the true perpetrator of a crime can be found by engaging in invasive technological searches within that closed universe. This Article is the first to identify and define closed universe searches as (1) searches of a small pool of persons connected by happenstance to a crime; (2) one of whom is almost certainly the perpetrator, but the rest of whom are equally certainly innocent; (3) using new technological tools that can identify the perpetrator from within the pool with certainty or near certainty. Applying this new concept, it then considers how Fourth Amendment doctrine has or might resolve closed-universe-search questions—questions like how intrusively police can investigate the suspects in that closed universe; how transparent investigative actions must be; and how accountable police are to rules designed to prevent abuse, misuse, or excess.

For nearly a century, American laws have required mines, oil and gas companies, and other potentially hazardous industries to restore land affected by their activities to a safe condition when they are done with it. These laws represent a grand bargain—they allow operators to make profitable but damaging use of land today in exchange for the promise of expensive remediation tomorrow. However, this bargain has proven hard to enforce. This Article offers the first comprehensive account of this century-old doctrine: the law of environmental repair. In doing so, it documents a regime in crisis and identifies a new systemic risk to environmental repair law: the global transition to renewable energy. The energy transition threatens to destroy the fossil fuel companies liable for environmental repair obligations while simultaneously undermining the legal tools that enforce those companies’ environmental promises. In response to this threat, and to the long-standing failures of environmental repair law, this Article proposes a new model of environmental law, the “environmental earnout.” Environmental earnouts are conceptually simple: They hold back part of the profits from damaging land uses until environmental repair is complete. While simple, environmental earnouts offer a new and sophisticated tool to reshape the fundamental bargain of environmental repair and protect the public from the environmental harm caused by abandoned fossil fuel infrastructure.

The principle of parental involvement is nonpartisan: Red and blue states agree that parents should generally be involved in the lives of their children. Meanwhile, the goal of children’s well-being—which may sometimes be at odds with parental involvement—has become a touchstone for legal reform efforts across a variety of domains. The embrace of both the goals of children’s well-being and parents’ rights to be involved in decision-making regarding their children conceals deeply contested questions about when, why, and how the law should require parental consent of minors’ decisions. Drawing on archival material housed at six different universities, we make sense of present-day conflicts about parental approval by revisiting the long legal history of parental involvement, from early common law cases to struggles of the civil rights era. Building on a rich literature on child well-being, we then use lessons from this history to construct a framework for determining when legislators and judges today should require parental involvement and when minors should be allowed to make their own decisions.