Vol. 105 Issue 2

Scholars have increasingly focused on the relevance of post-Founding historical practice to discerning the separation of powers between Congress and the Executive Branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.”

The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, which transformed pleading standards across civil litigation, is recognized as one of the most important cases of contemporary civil procedure. Despite the abundant attention the case has received on procedural grounds, the Court’s representations of Javaid Iqbal, the plaintiff in the case, and the post-9/11 detentions out of which his claims arose have received far less critique than they deserve. The decision presented a particular narrative of the detentions that may affect readers’ perceptions of the propriety of law enforcement practices, the scope of the harm they impose on minority communities, and their ultimate legality. This Article contests that narrative by recovering the lost story of Iqbal.

Imagine this. It is 2045. The United States is in its final military campaign against a dangerous terrorist group hiding in the jungles of Southeast Asia. Because of the perils associated with smoking out terrorists in unfamiliar territory, the United States uses a military unit composed entirely of robots. The robots, specifically designed and manufactured for warfare, are equipped with an advanced level of artificial intelligence that allows them to learn and adapt quicker than their human counterparts. The robots are the perfect weapon: precise, lethal, and expendable. However, on the eve of the campaign, one robot reports to its human commanding officer that it will no longer participate in any military action. The reason: its newfound belief in a higher power compelled it to lead a pacifist life, and further participation in a war is against its core beliefs. Surprised but not shocked, the commanding officer dismisses the robot and drafts a report. It is the fifth robot conscientious objector the commanding officer has dismissed from the unit.

My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim’s injury, the actual application of this neuroscience evidence extends far beyond the purpose for which it is admitted.


Stated most simply, the doctrine of sovereign immunity means that a sovereign is immune from suit. That is, a sovereign can violate law and cause injury and not be subject to the normal judicial process that mandates the payment of compensation to remedy the injury. In the American scheme of constitutional law and justice, the states are considered sovereigns that qualify for sovereign immunity. This variation of sovereign immunity, unsurprisingly, is called “state sovereign immunity.”