Print Edition
Articles, notes, and symposia pieces published in CLR’s print volumes.
Before Ashcroft v. Iqbal, and its companion predecessor Bell Atlantic Corp. v. Twombly, a pleading only had to provide proper notice and set forth claims that were legally sufficient. But Twombly and Iqbal added a new factual-sufficiency standard to the pleading test: The nonconclusory allegations must set forth a claim to relief that is factually plausible in light of judicial experience and common sense. The two opinions were like earthquakes that rocked academics, practitioners, and judges. Although much ink was spilled in the immediate aftermath of Twombly and Iqbal, initial assessments, when the shockwaves were still being felt, could not fully capture the adjustments, practices, rulemaking angst, and doctrinal scaffolding that have developed with experience under the new standard. Fifteen years out, the iron has cooled, and expectations and understandings have settled. Now seems like an excellent opportunity for reassessment of Twiqbal’s more enduring legacies.
This Article presents the first systematic empirical study of “conclusory pleading” as a form of plausibility analysis in the U.S. courts of appeals following Ashcroft v. Iqbal, which critics argued would harm plaintiffs by creating excessive demand for information before discovery, and by increasing judicial subjectivity and ideology in decision-making in Rule 12(b)(6) decisions, particularly in civil rights litigation. Contrary to the canonical two-step account of plausibility pleading, courts of appeals almost never evaluate whether pleadings are conclusory fact by fact before proceeding to assess plausibility. Instead, in a one-step analysis they assess whether allegations, on the whole, are generally too conclusory to be plausible, or they render that judgment as to some particular key assertion in the context of the full complaint, without rejecting any other pleaded fact. Findings suggest that any increased judicial subjectivity after Twiqbal likely stems from aspects of plausibility doctrine other than conclusory pleading, shifts in case composition triggered by Twiqbal, or the broader politicization of pleading standards.
In this brief Essay, I want to focus on one aspect of the Iqbal decision that I have taught for many years and which, in my view, is useful for thinking about the policy implications of the heightened pleading regime that Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced: the goal of deterring nuisance suits. Both Iqbal and Twombly famously changed the standard of fact pleading for nonfraud claims. They shifted the standard from the “possibility” regime suggested by the “no set of facts” language of Conley v. Gibson to one of “plausibility,” where the factual allegations must be nonconclusory and have some “heft.” Much has been written about just what plausibility means and whether it changed anything, either in theory or in practice. Here, I want to focus on the motivation for the change in pleading standards, specifically the strain and expenditures put on defendants in civil litigation.
In 2007 and 2009, the Supreme Court upended the long-understood notice pleading framework, replacing it with the plausibility standard introduced in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. I proceed from the assumptions that the pre-Twombly/Iqbal pleading standard was, roughly speaking, the one announced in Conley v. Gibson, and that courts now generally apply the framework set forth in Twombly and Iqbal—which instructs judges to determine whether the nonconclusory allegations in a complaint plausibly show entitlement to relief—when defendants move to dismiss for failure to state a claim. The raison d’être of this Essay is my proposal, in Part II, for an amendment to Rule 12. In substance, this proposal amounts to a rebooting of efforts in the period shortly after Iqbal’s decision, to promote limited pre-dismissal discovery as a means of blunting Twombly and Iqbal’s effects on cases involving asymmetric information.
Ashcroft v. Iqbal is a doctrinally instructive case. Iqbal teaches that the test for sufficient pleadings turns on the concept of plausibility.[1] It clarifies that the previous, more permissive understanding of a sufficient pleading under Conley v. Gibson is no more.[2]Iqbal also reflects the Supreme Court’s skepticism regarding district court judges’ ability to manage complex discovery disputes effectively.[3] And it demonstrates the Court’s complex view of its rulemaking role—changing procedural rules by opinion. Yet, for civil procedure scholars, Iqbal also marks a shift in our approach to the scholarly enterprise. This Essay will explore three scholarly trends that can be derived from the academy’s response to the Iqbal decision. First, a vast array of scholars responded swiftly to Iqbal, with many civil procedure scholars taking an empirical turn. Second, Iqbal emboldened a burgeoning area of civil procedure scholarship focused on non-federal court procedure and adjudication. Third and finally, Iqbal sharpened scholars’ critical focus on procedure. While a strong “access-to-justice” perspective existed in procedural scholarship before Iqbal, that work focused less intently on immutable characteristics such as race.
Gold has intrinsic and cultural value, as well as technological utility, which underpin its steadfast demand on the global market. However, supplying gold comes at a substantial cost. Up to 20 percent of the world’s gold comes from artisanal and small-scale gold mining (ASGM), which is conducted by individuals and small enterprises with limited capital. Modern-day ASGM practices contribute to significant human health and environmental harms in disadvantaged communities and critical habitats. In particular, the use of mercury in gold mining gives rise to potent toxin poisoning in humans and contributes considerably to biodiversity and ecosystem degradation. Using Colombia as a case study, this Note analyzes the challenges in legally formalizing the small-scale gold mining industry and instituting protective regulation. It argues that continued emphasis on mercury elimination could still yet catalyze the adoption of sustainable gold mining practices. A mercury-mitigating approach in ASGM should be prioritized for two key reasons. Moving forward, to better mitigate mercury use in ASGM for countries like Colombia, policymakers should prioritize improving the efficiency of litigation and adjudication pathways for mining law violations, with an emphasis on protecting environmental defenders and other advocates.
CLR Online
The web edition of the California Law Review.
Brokering Safety identifies a failure of privacy law: the tendency to allocate responsibility to individuals through opt-out and deletion rights, even as informational harm is generated by distributed systems capable of reconstructing, predicting, and targeting individuals over time. Privacy self-management fails, the Article shows, because the law has assigned them a task that the architecture of the data broker ecosystem made impossible. By grounding its critique in system design, Brokering Safety reframes the problem at the right level of analysis and points toward a corresponding solution: redistribution of responsibility from individuals to the institutional actors who generate exposure at scale. This comment builds on a mechanism in the Brokering Safety analysis. That mechanism is inference: the capacity of distributed systems to generate reliable, actionable knowledge about individuals by aggregating and recombining incomplete, loosely related data. This mechanism strengthens the centralized obscurity proposal by clarifying that the inadequacy of existing regimes reflects a category error: regulating transactions in data rather than the production of knowledge.
Companies in the networked information economy collect personal data to provide their services. Businesses are also always keen to develop other ways to monetize this consumer information. A handful of the largest leverage their platforms to serve content or ads on behalf of paying advertisers. After all, many companies are willing to pay handsomely for targeted access to potential buyers across devices. Others sell the data to third parties who find further commercial uses for it. Current legal doctrine allows this last category—data brokers—to sell or license personal data although they are not the ones to collect it from consumers. Meanwhile, most people do not know or understand these background deals and practices, even when they consent to them. Most consumers feel that they have no choice but to click yes and accept the terms of service. To put it starkly: the prevailing regulatory approach in the United States has effectively normalized data exposure.
Tragically, U.S. privacy law has neglected to address a significant dimension of privacy. While lawmakers and judges have routinely recognized intrusions into our secluded spaces and breaches of our confidentiality and secrecy, they have largely failed to protect our most common yet also our most underappreciated form of privacy: the practical obscurity that allows us to live freely and with dignity. Obscurity, which is the state of protection that arises when personal information is difficult for some people to obtain or correctly interpret, serves several vital interests: (1) it safeguards our ability to express ourselves without fear that everything we say could be used against us; (2) it enables us to participate in key democratic processes like protesting without the government recording our opposition in a database; and (3) it allows us to form intimate relationships where we selectively share what is on our minds and in our hearts. Ultimately, obscurity provides the “breathing room” we need pursue self-development or establish healthy boundaries with others.
In January 2026, right after overthrowing the President of Venezuela but just before launching a war with Iran, the Trump Administration ramped up its efforts to annex Greenland. During this period, President Trump’s rhetoric surrounding the Danish territory reached a fever pitch, with erratic threats of both a military invasion of Greenland and the imposition of tariffs on European goods. On January 17, in response to a near-unanimous opposition by European countries to the proposed annexation, President Trump threatened several European states with blanket 10 percent tariffs starting on February 1, 2026, which would quickly increase to 25 percent on June 1, 2026. He posted on Truth Social that these increased tariffs would be effective until the United States reached a deal for the “Complete and Total purchase of Greenland.”
To the public, Learning Resources v. Trump was a fierce condemnation by the Roberts Court of President Donald Trump’s brash assertions of constitutional power. The Supreme Court flatly rejected the claim that the International Emergency Economic Powers Act (IEEPA) provision empowering the President to “regulate . . . importation” in the face of emergency unlocked tariff powers. The New York Times pronounced the decision as a “Declaration of Independence” by the high court. Slate praised the thirteen pages of the Chief’s opinion backed by a majority as “a withering rebuke . . . [a] crisp, confident opinion.” But if you look deeper—for instance, at the remaining 157 pages—it becomes clear that the Court’s conservative majority experienced a catastrophic meltdown.
In January 2026, Anthropic published something unprecedented: a 79-page “constitution” for its AI model Claude. The document is remarkable. It is not a terms of service agreement. It is not a list of prohibited outputs. It is, as the company describes it, “a detailed description of Anthropic’s intentions for Claude’s values and behavior.” This constitution stands as a foundational text meant to shape how an artificial intelligence understands itself, its obligations, and its place in the world. Anthropic is not merely programming behaviors. It is, at least rhetorically, cultivating something like AI integrity. Reading the document, one encounters genuine philosophical engagement rather than boilerplate risk mitigation. History offers little reason to believe that corporate ethics survive contact with quarterly earnings reports.
Symposia
Articles accompanying CLR’s conferences. Published in the print edition.
Before Ashcroft v. Iqbal, and its companion predecessor Bell Atlantic Corp. v. Twombly, a pleading only had to provide proper notice and set forth claims that were legally sufficient. But Twombly and Iqbal added a new factual-sufficiency standard to the pleading test: The nonconclusory allegations must set forth a claim to relief that is factually plausible in light of judicial experience and common sense. The two opinions were like earthquakes that rocked academics, practitioners, and judges. Although much ink was spilled in the immediate aftermath of Twombly and Iqbal, initial assessments, when the shockwaves were still being felt, could not fully capture the adjustments, practices, rulemaking angst, and doctrinal scaffolding that have developed with experience under the new standard. Fifteen years out, the iron has cooled, and expectations and understandings have settled. Now seems like an excellent opportunity for reassessment of Twiqbal’s more enduring legacies.
This Article presents the first systematic empirical study of “conclusory pleading” as a form of plausibility analysis in the U.S. courts of appeals following Ashcroft v. Iqbal, which critics argued would harm plaintiffs by creating excessive demand for information before discovery, and by increasing judicial subjectivity and ideology in decision-making in Rule 12(b)(6) decisions, particularly in civil rights litigation. Contrary to the canonical two-step account of plausibility pleading, courts of appeals almost never evaluate whether pleadings are conclusory fact by fact before proceeding to assess plausibility. Instead, in a one-step analysis they assess whether allegations, on the whole, are generally too conclusory to be plausible, or they render that judgment as to some particular key assertion in the context of the full complaint, without rejecting any other pleaded fact. Findings suggest that any increased judicial subjectivity after Twiqbal likely stems from aspects of plausibility doctrine other than conclusory pleading, shifts in case composition triggered by Twiqbal, or the broader politicization of pleading standards.
In this brief Essay, I want to focus on one aspect of the Iqbal decision that I have taught for many years and which, in my view, is useful for thinking about the policy implications of the heightened pleading regime that Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced: the goal of deterring nuisance suits. Both Iqbal and Twombly famously changed the standard of fact pleading for nonfraud claims. They shifted the standard from the “possibility” regime suggested by the “no set of facts” language of Conley v. Gibson to one of “plausibility,” where the factual allegations must be nonconclusory and have some “heft.” Much has been written about just what plausibility means and whether it changed anything, either in theory or in practice. Here, I want to focus on the motivation for the change in pleading standards, specifically the strain and expenditures put on defendants in civil litigation.
In 2007 and 2009, the Supreme Court upended the long-understood notice pleading framework, replacing it with the plausibility standard introduced in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. I proceed from the assumptions that the pre-Twombly/Iqbal pleading standard was, roughly speaking, the one announced in Conley v. Gibson, and that courts now generally apply the framework set forth in Twombly and Iqbal—which instructs judges to determine whether the nonconclusory allegations in a complaint plausibly show entitlement to relief—when defendants move to dismiss for failure to state a claim. The raison d’être of this Essay is my proposal, in Part II, for an amendment to Rule 12. In substance, this proposal amounts to a rebooting of efforts in the period shortly after Iqbal’s decision, to promote limited pre-dismissal discovery as a means of blunting Twombly and Iqbal’s effects on cases involving asymmetric information.
Ashcroft v. Iqbal is a doctrinally instructive case. Iqbal teaches that the test for sufficient pleadings turns on the concept of plausibility.[1] It clarifies that the previous, more permissive understanding of a sufficient pleading under Conley v. Gibson is no more.[2]Iqbal also reflects the Supreme Court’s skepticism regarding district court judges’ ability to manage complex discovery disputes effectively.[3] And it demonstrates the Court’s complex view of its rulemaking role—changing procedural rules by opinion. Yet, for civil procedure scholars, Iqbal also marks a shift in our approach to the scholarly enterprise. This Essay will explore three scholarly trends that can be derived from the academy’s response to the Iqbal decision. First, a vast array of scholars responded swiftly to Iqbal, with many civil procedure scholars taking an empirical turn. Second, Iqbal emboldened a burgeoning area of civil procedure scholarship focused on non-federal court procedure and adjudication. Third and finally, Iqbal sharpened scholars’ critical focus on procedure. While a strong “access-to-justice” perspective existed in procedural scholarship before Iqbal, that work focused less intently on immutable characteristics such as race.
The concern raised by David Strauss’s Essay might be addressed by positing an alternative, broader conception of judicial review than the one he proposes, which is inspired by the influential footnote in the Carolene Products case. My alternative view on the scope and nature of judicial review does not grow out of experience with American Constitutional history (which I am no expert on), but rather from a philosophical perspective grounded in liberal and democratic theory and from a comparative constitutional experience drawn from the European and Israeli contexts. I will present my position through a defense of two distinctions that seem essential to me.
Podcast
Interviews with the authors of articles, notes, or online pieces published in CLR.
Algorithms shape our modern world, determining everything from which ads we might see on Instagram to who is afforded access to credit. Yet if you're not a machine learning engineer, it's hard to discern what decisions go into the development of these algorithms. That question -- what input decisions go into the creation of machine learning algorithms -- motivated Professor Fanna Gamal's latest article, The Algorithmic Racial Proxy. Professor Gamal, Assistant Professor of Law at UCLA School of Law, noticed that developers often exclude race and racial proxy variables as an input when creating machine learning algorithms.
In 2023, the Supreme Court decided Mallory v. Norfolk, Southern Railway Company, which held that consent remains a method of establishing personal jurisdiction independent of the minimum contacts test, first introduced by International Shoe Company. Washington. On the surface, this decision resolved ambiguities in personal jurisdiction doctrine. But, to explain to us how Mallory failed to consider the many complexities underlying consent to personal jurisdiction, Scott Dodson, a Distinguished Professor of Law at UC San Francisco, joins us to discuss his article, The Complexities of Consent to Personal Jurisdiction.
The amorphous administrative state is often oversimplified and misunderstood. Now, with the Trump Administration pushing for mass deportation and the DOGE dissecting and even disemboweling federal agencies, it is increasingly important to understand the different types of agencies, how they are run, and how agencies like the CBP, ICE, and the Bureau of Prisons create “at a massive scale the ‘field of pain and death’ that the law occupies.” From detaining federal criminal prisoners and immigrants to engaging in armed conflicts and carrying out domestic arrests, these agencies are governed by statutes, regulations, and internal guidelines that nonetheless fail to stop violence and the misuse of force.
People usually think that all tax agencies do is ensure tax laws are followed. But for decades, the IRS has regularly facilitated immigration raids. These raids target employees even as the IRS investigates their employers’ potential tax violations. What can this state of affairs teach us about agency overreach? And what alternate paths could better align the IRS’s efforts with its mission? In this episode, UC Davis School of Law Professor Shayak Sarkar discusses the IRS's underappreciated role in immigration enforcement.
Traffic courts resolve over half of the cases in the U.S. legal system. These cases are easy for some defendants to handle by paying a fine, but they can have devastating effects for those with fewer means. And despite the key role these courts play in funding state judicial branches and other state and local programs, they have not been comprehensively studied in decades. What’s going on in traffic courts? And what can they teach us about the legal system more broadly? In this episode, Arizona State University Sandra Day O’Connor College of Law Professor Justin Weinstein-Tull explains his research on traffic courts.
Immigration adjudications regularly use information from the criminal legal system to justify a discretionary denial of relief or benefits, even when charges have been dismissed. This practice faces little scrutiny due to the assumption that adjudicators are merely importing facts already found by the criminal system. But what if this practice actually constitutes “hidden factfinding”? Sarah Vendzules, a Senior Staff Attorney at the Office of the Appellate Defender in New York City, uncovers this hidden factfinding and offers a framework that could rein it in.
