For four decades, there was a near-universal consensus that consumer welfare was the sole and appropriate purpose of antitrust law. That consensus is breaking apart. For the first time in two generations, a growing group of scholars and policymakers is challenging that orthodoxy. They reject the consumer welfare consensus, and argue that antimonopoly policy should and can have much broader social goals, and serve democratic ends, not merely efficiency ones. This group is unified by its shared protest, but lacks… Read More

According to the conventional wisdom, the Supreme Court’s 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article—part of a symposium commemorating the Iqbal decision’s tenth anniversary—highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework… Read More

“There is certainly no longer reason to force the pleadings to take the place of proof, and to require other ideas than simple concise statements, free from the requirement of technical detail.” —Charles E. Clark, 1937[1]   Introduction In 2009, the Supreme Court decided Ashcroft v. Iqbal,[2] in which it pronounced—among other things[3]—that the second sentence of Rule 9(b) of the Federal Rules of Civil Procedure—which permits allegations of malice, intent, knowledge, and other conditions of the mind to be… Read More

In the wake of Twombly and Iqbal, courts and commentators have questioned whether notice pleading died with those cases. But what exactly was notice pleading? In this Essay, I argue that the question of whether the Court had “really” abandoned notice pleading in Twombly and Iqbal was a distraction from the fact that a full-bodied doctrine of notice pleading had never really existed in the first place. It had little separate existence from general theories of openness and liberalism, yet… Read More

Introduction For many decades, it was a given that, under certain circumstances, supervisory defendants in § 1983[1] or Bivens[2] actions could be held liable when their subordinates violated the Constitution. The various theories under which supervisors could be held accountable ultimately were given the generic term “supervisory liability.”[3] When the Supreme Court announced its decision in Ashcroft v. Iqbal,[4] many predicted a seismic shift in how claims of supervisory liability would be adjudicated—after all, the majority opinion termed supervisory liability a… Read More

Introduction On what I imagine was a blustery fall day in Washington D.C. in 2009, the Advisory Committee on the Federal Rules of Practice and Procedure (Committee) was in a rather foul mood. That previous spring, the Committee finished two major rule projects, and it was hard at work on an upcoming conference of civil litigation experts to be held at Duke Law School.[1] The summer of 2009 was to be a respite—a calm between the storms really. Instead, as… Read More

            In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal,… Read More

The law of search and seizure is built on flexible standards of reasonableness, transformed by courts into bright-line rules that balance the needs of law enforcement against the degree to which a particular police practice intrudes upon individual privacy interests. The third-party doctrine is one such rule, holding that police do not need a Fourth Amendment warrant to access information that an individual has voluntarily disclosed or conveyed to a third party, such as bank records or call histories. But the third-party doctrine is quite literally the product of another era—before ubiquitous networked computing, digital data, electronic communications, mobile technologies, and the commodification of information. Today, the digital devices that facilitate our daily participation in modern society are connected through automated infrastructures that are designed to generate vast quantities of data, nearly all of which are captured, utilized, and stored by third-party service providers. Under a plain reading of the third-party doctrine, however, the substantial majority of that data receives no Fourth Amendment protection—no matter how sensitive or revealing the information.