Category Archives: Uncategorized

Resilience and Judicial Power in the Aftermath of Trump v. CASA

May 18, 2026 Suzette M. MalveauxAdd a Comment

The Supreme Court of the United States is poised to make one of the most important decisions this term: the constitutionality of President Trump’s Executive Order challenging birthright citizenship. As the Court considers this substantive question, many scholars, judges, lawyers, and Americans are still grappling with the meaning of its earlier remedial decision, Trump v. CASA. Thankfully, Professor Mila Sohoni’s essay provides an excellent analysis of the case and its implications.

Sohoni provides a thoughtful, fair, and clear-eyed summary of what the opinion does and does not do. She starts by explaining how the Court now forbids district courts from issuing injunctive relief beyond the parties (“universal injunctions”). She flags important interpretive vacuums and questions left in CASA’s aftermath. Having clearly identified CASA’s boundaries, she recognizes the various means through which federal courts can provide broad injunctive relief to those challenging executive branch overreach. Finally, and most importantly, Sohoni contextualizes CASA during these turbulent times.

Pulling out to a bird’s eye view, she illustrates how the Trump Administration is weaponizing CASA. The Administration accuses federal court judges of judicial activism, defiance, and insubordination whenever they issue systemic injunctive relief. Such rhetoric aims to misinform the public and to punish and silence judges who perform their jobs by acting independently and consistently with the Constitution and rule of law. Sohoni urges the judiciary and others not to take the bait. The Administration’s campaign to delegitimize judges, judicial review, and the oversight process is a dangerous path we cannot afford to spiral down. Sohoni offers not only practical legal strategies for those fighting widespread suffering under the current political regime, but a deeper understanding of what is at stake moving forward.

The essay begins by setting the table, unpacking remedies law and shedding light on the Court’s jurisprudence regarding the scope of equitable relief. Sohoni would know; she has been studying and writing in the area for over a decade. The Court has cited her numerous times during the first and current Trump Administrations. Her voice is central to understanding the landscape, especially post-CASA. In a complex case with three concurrences and two dissents in addition to a 6-3 majority, Sohoni makes CASA surprisingly accessible.

In a nutshell, CASA no longer allows federal district courts to issue injunctive relief beyond the parties to a case. The Supreme Court concluded that the Judiciary Act of 1789 forbids such “universal” injunctions.

By way of background, CASA arose from three cases filed by individuals, organizations, and states in federal district courts in Maryland, California, and Washington challenging the Executive Order (EO) 14160 redefining birthright citizenship under the Fourteenth Amendment Citizenship Clause and the Nationality Act of 1940. Each district courts issued a nationwide preliminary injunction, enjoining implementation and enforcement of the EO against anyone nationwide. Three courts of appeals denied the Administration’s requests for stays, leading the government to file emergency applications to the Supreme Court to stay the injunctions as they applied to non-parties. The Administration argued that the district courts did not have the equitable authority to issue nationwide or “universal” injunctions, a position CASA’s conservative majority (6-3) endorsed.

Relying on the Judiciary Act of 1789 (rather than Article III), the Court stayed the injunctions to the extent that they were broader than necessary to provide “complete relief” to each plaintiff with standing to sue. The Court concluded that Congress only granted federal courts equitable remedies that were “traditionally accorded by courts of equity” at the founding. Going back to the High Court of Chancery in England, the Supreme Court described longstanding general practice of the Chancellor as awarding remedies specific to the parties. Courts of equity in the U.S. at its founding followed this trajectory. In a battle among the experts (primarily between Sohoni and Sam Bray), CASA’s majority sided with the latter, concluding that universal injunctions were absent for most of the nation’s history (1700s, 1800s) and surfaced relatively recently (in the 1900s). The Court rejected bills of peace and taxpayer suits as precursors to today’s universal injunctions, concluding: “Because the universal injunction lacks a historical pedigree, it falls outside of the bounds of a federal court’s equitable authority under the Judiciary Act.” Any benefit to non-parties can only be “incidental” and is allowed only if this is the “only feasible option.”

With the remedy of non-party universal injunctive relief off the table, many scholars, judges, lawyers and litigants are trying to figure out what’s next. Sohoni characterizes the legal landscape as follows: “CASA has not reset the relationship between federal courts and the executive branch. What it has done is introduce new sources of tension into it.” The opinion has left open several “interpretive vacuums” with which many of us are wrestling. While Sohoni concedes that it will take time to grapple with the issues left unaddressed, undefined, and ambiguous, she provides an excellent roadmap to begin that understanding. The essay explores court power and injunctive relief post-CASA in five areas: complete relief, agency vacatur, injunctive class actions, associational and third party-standing, and statutory authority.

First, while CASA preserved federal courts’ capacity to provide “complete relief” to plaintiffs, it left the term undefined. Complete relief includes “indivisible” remedies (e.g., the quintessential scenario where blaring loud music that is turned down benefits not only the complaining neighbors but also their non-party neighbors because the remedy cannot be divided). Complete relief also includes universal relief when it is the “only feasible option” (e.g., a broader injunction offers the only workable way to avoid the financial and administrative burdens on states administering federal programs that turn on the citizenship of beneficiaries). Complete relief is not guaranteed, and functions as a cap. Yet such relief, while only between the parties, may benefit non-parties when “incidental.” Thus, federal courts have significant room to award “complete relief.”

Second, CASA carved out universal vacatur of an unlawful federal agency rule or action under the Administrative Procedure Act (APA). Lower courts can continue their long history of universally setting aside unlawful agency conduct. Having distinguished the APA from the Judiciary Act, Justice Kavanaugh’s concurrence concludes that vacatur may act as the “functional equivalent” of the now-defunct universal injunction.

Third, CASA permits the modern injunctive class action of Federal Rule of Civil Procedure Rule 23(b)(2), enabling broad systemic relief. So long as litigants satisfy the Rule’s “rigorous” criteria, they may be entitled to broad relief protecting everyone affected by the challenged executive policy. CASA held that the universal injunction was an impermissible “workaround” to Rule 23 class actions, but not vice versa. Unlike the banned universal injunction, the class action has the requisite “historical pedigree”—the bill of peace. Justice Kavanaugh’s concurrence identifies the modern class action as the “functional equivalent” of the now-defunct universal injunction, so long as district courts follow proper procedure. Moreover, CASA permits a preliminary injunction for a putative class (one not yet certified), even though its members are not (yet) parties. This is allowed, Sohoni argues, because the class action’s equitable history bona fides predate the Rule’s adoption in 1966. Thus, the class action, while described by Justice Sotomayor’s dissent as “cumbersome,” may help fill CASA’s remedial gap.

Fourth, CASA was silent about associational and third-party standing. This means that organizations may continue to seek injunctive relief for their unidentified members nationwide and states may continue to seek the same for their individual residents. The law remains intact post-CASA.

Fifth, CASA’s holding is significantly limited by its reliance on statutory, rather than constitutional, grounds. Tethered to the Judiciary Act, CASA leaves open the possibility that other statutes may provide courts with the authority to provide universal equitable relief (e.g., the APA) and that Congress itself could broaden such authority by amending the Judiciary Act.

Having offered ways courts post-CASA can broadly check executive branch overreach, Sohoni turns to the Administration’s misreading of the opinion and its dangerous implications. Shifting from a relatively optimistic lens to a more sinister one, she warns of the Administration’s larger goals to discredit and retaliate against judges who act independently and to undermine judicial review writ large. The Administration accuses federal judges who order broad injunctions against its lawfully dubious policies of circumventing CASA. It portrays such judges as “rogue,” “activist,” “defiant,” and politically motivated, while criticizing them for abusing their authority and engaging in insubordination. The Administration expects lower court judges to do its bidding, rather than responsibly interpret and apply the law and exercise discretion in complex ways. The Administration vilifies normal law percolation and checks and balances.

This type of rhetoric is not only inflammatory, but dangerous. Judges are ignored and disobeyed, sued, targeted for impeachment, verbally attacked, and subjected to death threats, all for doing their job. This assault on judges who courageously issue orders consistent with the rule of law is part of a larger campaign to de-legitimize the judiciary. Sohoni reminds the Supreme Court of its power and responsibility to hold the line so that “reasoned dialogue and mutual respect” may once again define our “constitutional culture.” On the cusp of authoritarianism, Sohoni’s warning could not come sooner.

The Lost Story of the Pelvic Mesh Litigants

Apr 15, 2026 Seth EndoAdd a Comment

Multidistrict litigation (MDL) cases now comprise a majority of the federal docket. And MDLs often are one of the only means of providing victims of mass-torts with the possibility of redress. But even after Federal Rule of Civil Procedure 16.1 took effect on December 1, 2025, there is limited guidance for courts, lawyers, and litigants. Despite this, as Nora Freeman Engstrom identifies, “These decisions can affect hundreds of thousands of litigants and, in many cases, the legitimacy of the civil justice system itself.” Unsurprisingly, MDLs provide a frequent subject for legal scholars.

Even the best scholarship frequently misses a vital component, however—the on-the-ground experiences and stories of the litigants themselves. Elizabeth Chamberlee Burch’s new book builds on her earlier work to address this gap, providing a unique window into the pelvic-mesh MDLs and how unscrupulous lawyers, doctors, and con artists preyed on vulnerable women.

Beginning in the late 1990s, transvaginal mesh was used to treat pelvic organ prolapse in women. Thousands of women experienced significant complications from the treatment. Eventually the FDA banned its use. Many affected women sued the makers of the pelvic mesh, with the lawsuits consolidated into an MDL. Crooked lawyers targeted these women, persuading them to undergo unnecessary surgeries to remove the mesh– ostensibly for their health but really to boost the economic value of their cases and trap them in high-interest loans.

Burch reviewed thousands of court records and interviewed more than a hundred people to tell the full story of this scandal, pairing her legal expertise with deeply insightful reporting that centered the stories of three plaintiffs who fell prey to the predatory tactics. Humanizing the legal issues makes the book especially powerful in several ways.

First, the plaintiffs’ experiences demonstrate the vast gap between the formal rules and the lived reality of the law. In one interview, Burch described her students’ questions about the book “because everything they’re learning in all their other classes say you can’t do this.” I confess to having the same reaction. At dozens of points in the book, I stopped reading to silently rant about the professional-conduct and procedural rules that were broken. But I had the advantage of knowing these rules, being able to take a break from the book, and not suffering any of the harms.

In contrast, the three profiled plaintiffs—Sharon Gore, Barbara Shepard, and Jerri Plummer—never got to step away. And that leads to the second key contribution: the stories make salient the breaches of trust by their original lawyers as well as the lack of any real oversight or accountability from the legal system. Burch and other scholars have covered the potential disconnect between MDL lawyers and their clients; these personal accounts breathe real life into the issues. And the popular media has picked up on this, with Burch’s book garnering a detailed positive review in The New Yorker.

Third, Burch’s reporting and analysis highlights the complexity of legal reform. While loosening regulations on legal practice is often viewed as promoting access to justice, it carries real risks Some of the worst actors were non-lawyers who ran the “law firms” that were, in fact, call centers soliciting vulnerable women.

Fourth, Burch challenges some conventions of legal academia by demonstrating the power of storytelling. In this way, it leans in the direction of the emerging participatory legal scholarship movement and centers the voices of those most directly affected by the law, not just Ivory Tower experts.

In her New Yorker review, Casey Cep called Burch “the Jane Goodall of complex litigation.” And The Pain Brokers is an important contribution to the literature, offering a fresh perspective on evergreen themes—how economic resources interact with access to justice, how procedural rules influence outcomes, the effectiveness of the legal profession’s self-regulation, and more.

[Editor’s note: For another review of The Pain Brokeers, see Anthony Sebok, The Shame of Mass Torts, JOTWELL (April 15, 2026).]

Standing and the Legislative Power

Mar 24, 2026 Howard M. WassermanAdd a Comment

Good scholarship connects distinct areas and issues, highlighting consistencies and inconsistencies (some might say hypocrisies) across areas. Elizabeth Beske’s Article III’s Constraints on the Legislative Power connects a well-covered area—35 years of SCOTUS narrowing Article III standing, from Lujan through TransUnion—to historic and modern controversies over congressional power and judicial aggrandizement at legislative expense.

Beske places standing in the broader discussion of the imperial Supreme Court and Supreme Court supremacy. Rather than limiting the power of courts to hear and decide cases—the oft-repeated rationale for justiciability doctrines—the Court wields Article III to limit the legislative power. Spokeo v. Robins and TransUnion v. Ramirez narrowed Congress’ power to authorize litigation between private parties for statutory harms and statutory damages, absent a showing of a traditional judicially recognized common law injury.

She highlights six features of these new limitations on congressional power.

First. Beske traces the Court’s evolution on the Commerce Clause and economic substantive due process, from Lochner to decades of deference to legislative policy choice. The “New Federalism” that began during the Rehnquist Court established some uncertain outer boundaries to that deference. But these cases “pointedly left key precedents, like Wickard, alone,” such that the Court’s “respect for the outcome of the legislative process purports to be profound.” Beske proposes a fascinating insight: Through Article III, the Court has limited congressional power in a way it could not through Lochnerian due process or through Lopez. Through Article III it achieves preferred substantive outcomes by disregarding legislative purpose and overriding legislative work product—something the Justices insist they no longer do under Lochner.

Second. In narrowing (to the point of virtual extinction) the Bivens cause of action for damages against federal officers for constitutional violations, the Court identifies the decision to create a cause of action as a legislative choice to which courts must defer. Egbert v. Boule narrowed the Bivens analysis “to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy,” the answer to which always will be “yes.” Courts should not assess the costs and benefits of implying a cause of action; their role is to consider whether Congress is better suited to make that balance, a calibration Courts cannot second-guess. That near-absolute judicial deference to the legislative choice not to create a constitutional cause of action cannot square with TransUnion’s judicial invalidation of the legislative choice to create that statutory cause of action. If Congress possesses sole power to weigh the costs and benefits of allowing private litigation, it should possess that power regardless of which choice it makes. Of course, one might find a different throughline—deference to the choice to decline (or fail) to create a cause of action but not to the choice to create a cause of action. But that reflects anti-litigation principles rather than legislative-supremacy principles.

Third. In 2021, the year of TransUnion, the Court took a “short but critical diversion” in Uzuegbunam v. Preczewski. The Court held that a plaintiff had standing to pursue a First Amendment claim seeking only nominal damages (the government had repealed the challenged policy, mooting a request for prospective relief). Although small, nominal damages are concrete; they remedy (even if non-economically) cognizable past constitutional injury. Critically, Justice Thomas wrote the Uzuegbunam majority, pushing the core of his Spokeo concurrence and TransUnion dissent—private harms to private rights require different, more forgiving standing rules. The plaintiff suffered a legal injury when the government prevented him from speaking; that his injury might be unquantifiable did not mean he did not suffer a particularized violation of his private rights.

Fourth. The disparate outcomes in Uzuegbunam and TransUnion—decided months apart—reflect a bizarre paradox: Statutory rights demand a greater showing of injury than non-statutory rights. “While violations of a private right with a common-law or constitutional pedigree may proceed absent any inquiry into the extent, or even existence, of actual injury, as Uzuegbunam reflects, federal judges must find harm—quantifiable harm that is good-enough harm—to allow suit in federal court upon private rights created by Congress.” Pre-2021 standing doctrine does not establish or support that idea. And the majority did not consider or explain why the private harm was obvious under the Constitution in Uzuegbunam but not under the statute in TransUnion. The Court intuits that actual injury is unnecessary “when the private rights are not creatures of statute,” but “this intuition evidently disappears” when Congress has created the right.

Fifth. The Court has constitutionalized the debate over statutory damages, despite their long pedigree and their availability without proof of actual damage or harm. Statutory damages had been a contentious political and legislative question. Academics and officials debated whether legislation should include statutory-damages provisions as a proxy for difficult-to-quantify statutory harms and to encourage lawsuits or whether they produce excessive litigation and absurd liability exposure. But they were a “humdrum” legal question, requiring statutory interpretation to determine whether Congress chose to allow that remedy. TransUnion changes the question—from one of statutory interpretation to one of Article III. “What had previously been a policy debate playing out in the political arena—is it wise or unwise to allow damage awards in the absence of measurable harm?—is no longer; Article III’s case or controversy requirement has stepped in and now dictates the answer.” Beske shows how lower courts follow TransUnion to reject standing under other consumer-protection statutes, despite an express statutory damages provision that courts had interpreted as not requiring actual harm.

Sixth. Recent standing cases disregard the lessons of decades of statutory and common law understanding of increased risk as a type of harm. The Industrial Revolution and the post-World War II world exposed the insufficiency of a tort system grounded in post-hoc compensation in addressing “ambient dangers” in a complex modern world. Congress responded with statutes regulating “increased risk” as a unique harm, buttressed with private enforcement. The lines to be drawn regarding risk were political and legislative—identify the acceptable level of pollution or toxicity before imposing liability.

No more. “TransUnion holds that, according to Article III, Congress is powerless—ever—to declare that exposure to ‘risk of harm’ is itself a compensable injury.” And it does so through an analogy that misunderstands (or ignores) the problem. The majority offered a hypothetical drunk driver who makes it home without injuring another driver, insisting that driver should be celebrated rather than sued. But in that case, the absence of harm is known and knowable. In the problematic cases—groundwater contaminants, asbestos, or benzene—no one knows who may suffer future harm or when. The Court undercut the legislative power by insisting that Congress cannot authorize such suits absent the old-style tort injuries that do not exist in new contexts.

This review essay’s extensive use of quotations should highlight another quality of Beske’s article—her writing is straight, engaging, and punctuated by sharp turns of phrase. Finding—and promoting—well-written scholarship that offers new ways of examining legal problems—JOTWELL exists for just this article.

Judicial Sovereignty-Making at the Country’s Start

Feb 20, 2026 Marin K. Levy1 comment

Melville’s Ishmael declares in the opening chapter of Moby Dick, “Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul . . . then, I account it high time to get to sea as soon as I can.” In this dark February, the timing is right to take to sea—and Kevin Arlyck’s new book, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825—is just the thing to take us there.

The Nation at Sea provides a new historical account of the federal judiciary’s early days—one that shifts the way we understand how our country took its place in the world, and how the federal courts took their place in our country. The story so often told is that the federal courts were rather quiet after they were established. They began to find their voice with Chief Justice Marshall at the Court’s helm in cases such as Marbury v. Madison and McCulloch v. Maryland. And through such cases, the story goes, the Court began establishing its role in the constitutional order and its role in American nation-building.

Arlyck has a different story to tell—one that centers around the power of the courts in resolving disputes not on American soil but out at sea. His book shows how case after case made its way to federal court through Article III’s exclusive admiralty and maritime jurisdiction, and why these cases were of political, legal, and diplomatic import. From matters of trade to matters of war, American judges adjudicated foreigners’ legal rights and obligations. What’s more, the other branches of the federal government came to depend upon what had been perceived to be the “weakest” of the three, thereby building the judiciary’s credibility at home.

They key point is not simply that federal judges were making their way as they stated the law in cases of international consequence. It is that at a time when the outcome of our national project was uncertain, the resolution of such disputes by our courts helped prove the project’s mettle on the world stage. In Arlyck’s words, such judicial actions “demonstrated the young republic’s fitness for admission into the community of ‘civilized’ (that is, European) nations” resulting in a kind of “judicial sovereignty-making.”

It is in moments such as this that historians (and reviewers of the work of historians) face a common challenge: what is the work’s payoff? To be sure, this history is valuable in and of itself. Facts matter and the stories we tell matter—and Nation at Sea, by correcting the record of our origins, should be viewed as essential reading for those who teach and write in Federal Courts. (As if that were not enough, it is simply a delight to spend time reading up on prize cases and puzzling through whether and when U.S. courts can exercise jurisdiction over foreign pirates!) But a skeptic may nevertheless press—does Nation at Sea provide lessons for our current moment?

Arlyck says the answer is yes—and the end of the book makes connections to the modern day. It focuses on the courts’ role in cases that implicate foreign relations. One oft-made claim is that courts are to be greatly deferential to the other branches in this space. And yet, as we learn in Nation at Sea, it was well settled through the first few decades of the country’s history that the courts could (and, it was thought, should) resolve various maritime controversies implicating foreign relations, even (if not especially) during wartime. Particularly at a time when judicial interest in early historical practices is piqued, the courts’ role in foreign affairs for the first third of a century of the country’s life could well reorient that inquiry today.

More broadly, it is worth observing that there is a great deal of uncertainty on today’s horizon. Returning to our point of origin, as one of the sailors declares in Moby Dick, “I know not all that may be coming . . .” In myriad ways, we are all at sea. At this moment, a fuller story of how the courts came into their power—and helped bring the country into its power—is a worthy tale to take in, not just as a log of past journeys, but as a potential compass for future ones.

Take Notice: Governmental Review of Class Action Settlements

Jan 23, 2026 Linda S. MullenixAdd a Comment

Class action practitioners and scholars are well aware that before a federal court may approve a class action settlement, the judge must assess the settlement’s fairness, adequacy, and reasonableness under various Rule 23(e) requirements. The Advisory Committee on Civil Rules has paid heightened attention to settlement approval, amending Rule 23(e) in 2003 and 2018. State class action procedures contain similar rules relating to judicial scrutiny of state class settlements.

Although the judicial role in overseeing class action settlements is well known, the role of governmental entities under the Class Action Fairness Act of 2005 (CAFA) in assessing class settlements has been somewhat overlooked in class action scholarship. This is not surprising; since CAFA federalized class action procedure, academic discussions of CAFA’s intricacies has receded. Michael Solimine and Hailey Martin’s recent article in the Journal of Legislation reminds us that CAFA intended to provide governmental entities with an additional role in assessing class action settlements, including rights to comment and object. Their article assesses the effect of CAFA’s provision for governmental oversight of class settlements.

CAFA’s notice requirements recognize the role for the federal government and state attorneys general in assessing settlements. When settling parties submit a proposed agreement to federal court for a fairness hearing, they must notify the United States attorney general and relevant state AGs. The notice must include documents such as the complaint, settlement agreement, and hearing schedules. The court cannot approve the settlement for 90 days to allow these officials to respond, comment, or object. Legislative committee hearings on CAFA indicated that the notice’s primary purpose was “to safeguard plaintiff class members’ rights,” and to enable state AGs to “voice concern if they believe that the class action settlement is not in the best interests of its citizens.” Failure to apply with the CAFA notice requirement renders a settlement void.

Solimine and Martin assess the effect of CAFA’s notice provision on class action settlements. At the federal level, DOJ’s consumer protection office monitors notices and responds when necessary, although it has played a negligible role in assessing or objecting to proposed settlements. DOJ has no standardized system for receiving and tracking CAFA notice and experienced long delays in processing the notices internally. And it rarely objects to proposed settlements, despite receiving hundreds of CAFA notices annually; it responded to notices only six times in the first sixteen years since CAFA’s passage in 2005. Complicating the federal landscape, there is widespread non-compliance with the CAFA notice provision, with many lawyers confessing unawareness of the requirement. Anecdotal evidence suggests that parties involved in securities class litigation simply believe CAFA’s notice requirement does not apply to their litigation.

The article identifies instances in which AGs from Arizona, Connecticut, Florida, and the District of Columbia, either singularly or in concert with other state AGs, have offered objections to contested settlements. But the authors acknowledge that while anecdotes are important, no systematic literature documents state AG responses.

Solimine and Martin seek to fill this informational gap with a detailed empirical case study of the Ohio AG’s office handling CAFA notices from 2007 to 2024. It documents a detailed system for receiving, reviewing, and responding to CAFA notices. Upon a receipt, a paralegal distributes the notice to a relevant section and designated official for review. Staff focus on assessing the complaint’s alleged harm, potential effects on Ohio consumers, class member notification, release language, injunctive and monetary relief, cy pres terms, and attorney fees. When staff concerns arise, the AG may decide to engage with other state AGs, engage in discussions with plaintiff and defense counsel, or file an amicus brief detailing their objections.

The Ohio AG’s office maintains a database that includes a “robust summary” of each case from the period, including the nature of the litigation, date of notification, parties’ representation, number of Ohio class members, final hearing date, and pertinent notes. Solimine and Martin argue that Ohio’s system reflects a greater awareness of, an more centralized response to, CAFA and CAFA notices among state AGs than in the DOJ.

They conclude that federal and state involvement with class settlements post-CAFA is sparse. Moreover, they show that many courts are uncertain what deference or weight to give to government responses and objections. Solimine and Martin argue that courts should give heightened deference to governmental objections, considered in conjunction with the court’s evaluation of the Rule 23(e) factors. On the other hand, they argue courts should not read the lack of government response or objection as indicating approval of the settlement or as a reason not to approve it.

Conflict of Laws as Pedagogy

Dec 10, 2025 Roger M. MichalskiAdd a Comment

Fights over gender identity have preoccupied American politicians in recent years. The dialogue surrounding these issues has not always been civil and productive. Too often, voices with incendiary positions have been rewarded with the most attention. Help comes from what might seem, on first sight, like an unlikely source: private international law, or, as more commonly called stateside, conflict of laws.

In “Mirin” and Beyond, Susanne Lilian Gössl provides an account of how European legal systems deal with situations where different sovereigns have different or even clashing views on gender determination and change, including binary and non-binary approaches. Some countries use self-declaration (with more or fewer administrative requirements); some use biological sex at birth; some allow for non-binary gender options; others allow for only two genders. Imagine, for example, a person who is a national of Country A, gender transitioned in Country B, and resides in Country C. Which country governs that person’s status? How can and should a country deal with a gender determination of another country that conflicts with its views of if/when/how somebody might transition to another gender?

Gössl’s answers these questions in three parts. The first part explores how conflict-of-laws methodologies of different European countries select applicable law for gender determinations. Some countries (e.g. Belgium, France, Spain) treat gender allocation questions as a personal status question, mainly determined by nationality. Other countries (e.g. Ireland, Iceland) use lex fori or (e.g. Switzerland) utilize the law of the place of residence as the primary consideration. Finally, some countries (e.g. Germany) combine different considerations, for example nationality with limited party autonomy elements.

The second part of the article examines when and how countries recognize the gender determinations of other countries. The most restrictive frameworks accept foreign status determinations only when they meet the requirements of the country’s domestic rules. Other countries recognize foreign gender determinations under broad or narrow models of what counts as a “foreign judgment.” For example, Ireland recognizes a foreign registration of a sex change in a range of circumstances. Crucially, each country must determine the role of public policy in its recognition analysis. Most countries recognize foreign judgments only if they do not violate the public policy of the recognizing state. Each country thus must determine if, when, and how foreign status determinations related to gender and sex might violate local public policy. As might be expected, this remains an unsettled question.

The third part of the article explores the Mirin case, a 2024 decision of the Court of Justice of the European Union. Mirin examines the interaction of European Union primary law and human rights law and the responsibility of EU member states to facilitate the recognition of foreign gender determinations. Leaning on the importance of free movement of EU citizens within the EU, the court argued for the enhanced portability of such status determinations and limited national public policy exemptions to recognition. Gössl’s article explores how this decision strengthens the position of individuals who change gender identities but also creates political friction among EU Member states.

The law in this space, even limited to Europe, is varied and nuanced and beyond the scope of one article. Gössl’s article shines in introducing non-experts to this topic and making a broad body of European law accessible to non-European scholars. For somebody like me, it is easy to get caught up in the ample supply of US law review articles that tend to focus on domestic affairs. As Gössl’s article reminds us, there is much to learn from how other legal systems approach difficult questions.

Of course, the EU and the US differ in many ways. But Gössl’s article provides an important lesson about pedagogy—we need tools to help us think about how to engage with others who have fundamentally different views on important, controversial, and unavoidable topics. Conflict-of-laws doctrines from all corners of the world remind us that we have options beyond capitulation or angry opposition. Even views that one might regard as deeply flawed or dangerous can be processed and analyzed through conflict-of-laws frameworks that help us negotiate, in a principled manner, when to hold the line and when to accept differences.