Recommended Citation
Scott Dodson,
Twiqbal: Past, Present, and Future, 114
Calif. L. Rev.
1119
(2026).
Available at: https://repository.uclawsf.edu/faculty_scholarship/2153
Publication Date
6-2026
Abstract
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. 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. 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.
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. Now, merely alleging you were fired because of your race would not suffice without more factual allegations to plausibly show discriminatory motive.
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. 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. And practitioners changed their approaches to motions to dismiss: Plaintiffs pleaded more, and defendants moved more, with different arguments.
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.
Document Type
Article
Publication Title
California Law Review