Standing and the Legislative Power

Mar 24, 2026 Howard M. WassermanAdd a Comment

Howard M. Wasserman

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

Marin K. Levy

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

Linda S. Mullenix

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

Roger M. Michalski

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.

You Get What You Pay For: Experts in Securities Class Actions

Nov 12, 2025 Sergio J. CamposAdd a Comment

Sergio J. Campos

Litigation is expensive and requires time, money, and resources to put together a good case. One well-recognized downside of percentage fees, such as the contingency fees used by plaintiffs’ attorneys in personal injury cases, is that they tend to cause underinvestment in litigation. In a typical percentage fee arrangement, the lawyer will bear the full costs of litigation but only get a fraction (around 20% to 30%) of the gains. This leads lawyers to invest less than if they had a greater share of the recovery.

The underinvestment problem has been empirically observed in nonlitigation contexts. For example, real estate agents typically receive a percentage of a sale; studies show that agents invest more marketing their own properties (where they get 100% of the gains) as compared to their clients’ properties. But few empirical studies have been conducted to demonstrate this common-sense result in litigation.

Expert Asymmetry: Evidence from Securities Litigation fills that gap. Co-authors Andrew Granato, Adam Callister, and Belisa Pang seek to measure the underinvestment caused by percentage fees in securities class actions, an ideal context to study underinvestment. Class attorneys receive a percentage of any recovery and front all costs. The court must approve any settlement. Databases collect settlements and relevant filings. Most importantly, the parties share one common expense – the cost of an expert to show that an alleged misrepresentation had a material effect (or not) on the stock price.

The authors develop a simple game theoretic model showing that percentage fees lead to underinvestment in plaintiffs’ experts as compared to defendants’ experts. They reviewed the dockets of settled and unsettled cases to produce a set (621 cases between 2008 and 2017) to measure any actual underinvestment. Because expert quality is difficult to observe directly, they focus on expert background, experience, and hourly wage.

The results are fascinating. Experts tend to polarize as either plaintiffs’ experts or defendants’ experts, with only a few (NERA, for example) “meaningfully” representing both sides. Defendants’ experts tended to have more “prestigious” backgrounds and academic affiliations. Most importantly, the average hourly compensation of defendants’ experts tended to be much higher than for plaintiffs’ experts. The top defendants’ expert by number of appearances charged on average $1,220.57 per hour while the top plaintiffs’ expert by number of appearances charged $1,022.53 per hour. More generally, defendants’ experts charged an average hourly rate of $1,148.61, 36.8% higher than the average hourly rate for plaintiffs’ experts of $839.36. The data suggests that the percentage fee not only leads to underinvestment for plaintiffs but creates a systematic bias in favor of the defendants in securities class actions.

The authors suggest one provocative solution to this systematic bias—more inquisitorial judging. Federal courts can appoint independent experts under Federal Rule of Evidence 706, and some have done so in complex cases, such as in litigation involving the “average wholesale price” of pharmaceuticals. I am unsure that such an approach is necessary—perhaps other methods of aligning the interests of the lawyer with the plaintiffs are available. But the suggestion is intriguing.

The article does a remarkable job of digging through the evidence to provide empirical support for a well-recognized downside of percentage fees. I am grateful for the great effort put into this project, and like it lots.

Two New Windows Into Discovery

Oct 28, 2025 Seth EndoAdd a Comment

Seth Endo

About thirty years ago, Paul D. Carrington observed that the discovery stage of civil litigation is a “means of correcting imbalances in … power that are productive of injustice.” Two recent articles—one by Miyoko T. Pettit-Toledo and one by James Stone—illustrate the lasting power of that reflection. While each takes on a different aspect of discovery, both pair thoughtful empirical work with probing critical analyses that get at the very real stakes for litigants. And each, in effect, applies a version of the old test for a person’s character by addressing how various discovery systems treat the most vulnerable amongst us.

Pettit-Toledo’s The Politics of Proportionality in State Civil Rulemaking analyzes state responses to the 2015 amendments to Federal Rule of Civil Procedure 26(b)(1), which controversially integrated a proportionality element into the definition of the scope of discovery. Proponents lauded its potential for stemming costly discovery. Critics worried that it would be used to stifle necessary factfinding. But, as Adam Steinman identified, the battle over the amendment ultimately would be fought in its case-by-case application in the lower federal courts. Pettit-Toledo follows a natural corollary flowing from the federal rules’ historical influence on state procedure: how states respond to the rule change also is a significant part of the story.

Pettit-Toledo is the first scholar to systematically review fifty states’ responses to the 2015 proportionality amendment. She divides them into three groups: (1) fourteen states adopted the change; (2) four rejected the change, and (3) the remaining thirty-two had not yet visited the issue. While this topline finding would be helpful by itself, Pettit-Toledo unearths various states’ rationales for taking action, drawing insights into individual states’ policy preferences and the potential flexibility of the amended rule.

She also makes a significant conceptual contribution to the discovery literature. She applies Eric Yamamoto’s “Critical Procedure” framework to reveal “the political and ideological preferences of rulemakers and how that affects the revision and application of rules.” Combining these insights with the survey, Pettit-Toledo rehabilitates the proportionality amendment, explaining how it can be used to cure power asymmetries, elevate state judges who often are more diverse and connected to their local communities than federal judges, and offer historically disempowered litigants a greater voice. Building out this last point, Pettit-Toledo explains how discovery in civil litigation can amplify calls for social justice.

Stone’s The Prison Discovery Crisis likewise considers how discovery can be a tool for justice, adding to a growing literature examining incarcerated people’s relationship to civil procedure. Stone canvasses both the written and unwritten rules of discovery in civil litigation brought by incarcerated individuals against their jailers. He interweaves case analysis with interviews with federal judges, staff attorneys, prison-rights lawyers, formerly incarcerated people, and prison officials to detail how discovery perpetually fails in these civil-rights lawsuits. He identifies aspects of incarceration that systematically diminish the promise of liberal discovery. Discovery rules are not a good fit for an environment in which most of the evidence is under the defendant’s control, the plaintiff has few resources, and there is a strong underlying hostility between the parties.

But The Prison Discovery Crisis does not leave it here. Stone analyzes two hundred cases brought by individuals incarcerated in Menard Correctional Center in the Southern District of Illinois and the Louisiana State Penitentiary in the Middle District of Louisiana to identify which discovery practices influence prisoner litigation outcomes. Based on this empirical work, Stone offers several prescriptions. He suggests courts recruit counsel and standardize a discovery process tailored to incarcerated individuals’ circumstances and claims. While the proposed reforms are thoughtful, even if none are adopted, The Prison Discovery Crisis will have a real effect by telling a vital story about the power and peril of civil procedure that likely is unfamiliar to many scholars and rulemakers.

The Politics of Proportionality in State Civil Rulemaking and The Prison Discovery Crisis are innovative scholarly works. But one final attribute inspired me to cover them together: at their respective cores, they offer realistic but optimistic views of what civil procedure can be and how discovery’s information-forcing functions can serve as engines for social change. And they stand as reminders of the transformative power of the law during a time when it is easy to be cynical.

Killing Precedent Softly

Oct 13, 2025 Fred O. Smith, Jr.1 comment

Fred O. Smith, Jr.

Sometimes the Supreme Court overrules prior precedents with unmistakable clarity. Think Dobbs overruling Roe. (“We hold that Roe and Casey must be overruled.”) Or Lawrence overruling Bowers. (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”) But other precedents die slower deaths, creating a doctrinal twilight zone where lower courts must apply decisions the Supreme Court has undermined without formally overruling. Curtis Bradley and Tara Leigh Grove tackle this judicial limbo in their forthcoming article, asking how lower courts should handle precedents that are neither dead nor fully alive—and what this uncertainty means for a legal system that depends on clear hierarchical commands.

The most common approach to navigating the twilight—which the Supreme Court has repeatedly endorsed—mandates that lower courts treat Supreme Court precedent as fully authoritative regardless of subsequent signals suggesting its demise. As the Court stated in Rodriguez de Quijas v. Shearson/Am. Express, Inc. (1989) and reaffirmed in cases such as Agostini v. Felton (1997): “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”

A more controversial approach encourages lower courts to handle this uncertainty by predicting how the current Supreme Court would rule, essentially counting votes among sitting Justices. Under this “prediction model,” lower courts would examine changes in Court composition, statements during oral arguments, and individual Justices’ expressed views to anticipate future overrulings. The article notes that lower courts might understandably favor this approach “if for no other reason than to avoid being reversed.”

Borrowing from both, Bradley and Grove offer a more nuanced account which they call the “decisional authority model.” They identify five signals that might indicate a precedent is disfavored: (1) disparaging statements about it; (2) decisions applying it narrowly; (3) the Court’s silence or failure to cite it; (4) decisions in related areas that seem incompatible; and (5) methodological shifts that undermine its foundations. These signals are not created equal, however. Only the first two—when appearing in binding majority opinions—should guide lower courts. Separate opinions, silence, and indirect doctrinal developments should carry no weight.

As key case studies, they examine three doctrines: (1) the Lemon test for the Establishment Clause; (2) the Bivens damages remedy for violations of federal constitutional rights by federal officials; and (3) Chevron. Lemon–-which considered, among other factors, whether the government acted with a religious purpose—endured decades of withering criticism from individual Justices. Despite these critiques from on high, lower courts continued applying it because no majority opinion had abandoned it. After pronouncements in American Legion v. Humanist Association (2019) undermined the opinion’s long-term vitality, the outcome was more mixed. While some circuits began “counting heads” across opinions to declare Lemon dead, other courts insisted a binding majority decision was required.

As for Chevron, well-before overruling it, the Court declined to accord deference in cases where it seemed applicable. Yet lower courts continued treating it as binding precedent, deferring to reasonable agency interpretations of ambiguous statutory text.

As to Bivens, which has not been overruled, the Court has rejected every claim since 1980, while individual Justices called for limiting it to its facts. Lower courts have been left with the task of navigating that uncertainty, as Ziglar v. Abbassi (2017) and Egbert v. Boule (2022) have cabined the doctrine. Indeed, empirical analysis demonstrates that since Egbert, lower federal courts have overwhelmingly restricted Bivens to a vanishingly narrow set of contexts.

Across these areas, the authors demonstrate that lower courts resist the temptation to predict the Court’s future moves, instead treating precedent as authoritative until explicitly overruled. This descriptive finding is consistent with their normative claim: lower courts should respond only to criticism or narrowing in binding majority opinions, not to disparaging separate opinions, silence, or methodological shifts.

The taxonomy could bring clarity to a murky area. By distinguishing between legitimate disfavoring signals from the Court and less precise signs of disagreement, Bradley and Grove offer practical guidance that respects vertical stare decisis and the Court’s prerogative to evolve doctrine. Their rejection of “counting heads” across separate opinions particularly resonates—if five Justices can effectively overturn precedent through scattered criticisms, the distinction between institutional decisions and individual preferences collapses.

The issues Bradley and Grove raise are particularly urgent given recent use of the shadow docket, where the Court has issued consequential orders with minimal or no reasoning. As Erwin Chemerinsky recently observed, the Court has used its shadow docket to allow firings of agency officials protected by for-cause removal restrictions, effectively gutting Humphrey’s Executor without formally overruling it. Steve Vladeck has documented how this pattern extends beyond agency removals—in Department of Education v. California, the Court issued a cryptic four-paragraph ruling that lower courts must somehow parse for broader principles. When emergency orders appear to eviscerate longstanding precedents, lower courts face a particularly acute variety of the interpretive challenge Bradley and Grove outline: follow the original precedent that technically remains binding, or divine meaning from unexplained shadow docket rulings that suggest that precedent is functionally dead.

Compounding this difficulty, some Justices have excoriated lower courts for failing to properly decode these cryptic signals. Justice Gorsuch accused lower courts of creating “anarchy” by not treating shadow docket orders as binding precedent, while simultaneously acknowledging such orders create only “probabilistic holdings.” In his recent NIH grants concurrence, Gorsuch went further, claiming lower courts were in “defiance” for distinguishing cases that four of his colleagues—including the Chief Justice—agreed were distinguishable. This creates a Kafkaesque trap: lower courts must extract clear commands from orders that provide neither reasoning nor clear standards, then face rebuke when different judges reach different conclusions about what these tea leaves mean.

Bradley and Grove’s article also surfaces important questions about the institutional costs of doctrinal limbo. The Bivens case study reveals courts desperately seeking procedural off-ramps to avoid grappling with a doctrine whose status remained unclear for decades. This uncertainty burdens litigants who must navigate shifting sands, wastes judicial resources on creative avoidance strategies, and undermines precedent’s core function of facilitating settlement. Prolonged ambiguity may also distort legislative incentives—why would Congress create statutory remedies if constitutional ones already exist, even as the courts slowly strangle those remedies? While the authors acknowledge these costs, their project is descriptive and prescriptive for lower courts operating within this imperfect system, not a brief for how the Supreme Court should signal its intentions.

Bradley and Grove make a vital contribution to understanding how vertical stare decisis operates when the Supreme Court does not speak clearly. Their empirical findings reveal that lower courts generally resist the siren call of prediction, dutifully applying precedents even as the Supreme Court undermines them through a thousand cuts. This descriptive work grounds their normative framework in judicial reality rather than abstract theorizing. The decisional authority model offers lower courts a principled way to navigate treacherous waters—follow binding majority opinions that criticize or narrow precedent, but ignore the noise of separate writings, silence, and indirect doctrinal shifts.

Their most profound insight may be recognizing that disfavored precedent is not merely a doctrinal puzzle but a reflection of institutional power dynamics. The Supreme Court maintains control while forcing lower courts to decode mixed signals without a cipher. From this vantage, Bradley and Grove have not just mapped the twilight zone of dying precedent—they have provided lower courts with a flashlight. As shadow docket rulings multiply and individual Justices grow more aggressive in attacking precedents they cannot yet overrule, this guidance becomes ever more essential for judges trying to fulfill their constitutional role while the ground shifts beneath them.

Should drafters be penalized for clearly unenforceable terms?

Sep 11, 2025 Maureen CarrollAdd a Comment

Maureen Carroll

Most of us (if not all) have entered a contract with one or more terms that a court would not enforce. From non-compete agreements in states that prohibit them, to leases that purport to limit the implied warranty of habitability, to waivers that disclaim liability for injuries resulting from the drafting party’s negligence, contracts containing clearly unenforceable terms have become ubiquitous. The usual remedy (such as it is) for the inclusion of such a term is for a court to decline to enforce it.

That remedy, Daniel Wilf-Townsend argues, is woefully inadequate. In Deterring Unenforceable Terms, he proposes to supplement it with “a general, affirmative prohibition on clearly unenforceable terms in contracts offered by a sophisticated drafter to large numbers of unsophisticated counterparties.” That proposal might seem bold, but over the course of the article, it starts to appear quite restrained.

In support of his proposal, Wilf-Townsend draws on two large and expanding bodies of empirical research. The first demonstrates the ubiquity of unenforceable terms in contracts governing employment, housing, and other contexts. Separate studies of residential leases in Boston and Philadelphia showed that more than half contained at least one unenforceable term. Moreover, most of the leases were not bespoke creations of small landlords making idiosyncratic mistakes, but “were standard form leases, drafted by commercial publishers or by organizations of landlords or realtors.” The existing studies do not cover every context in which mass contracting is common. But taken together, they “paint a consistent, coherent picture of a world in which unenforceable terms are ubiquitous–including in form contracts disseminated to many actors and institutions.”

The second body of empirical research shows that most consumers believe themselves to be bound to the terms of their contracts as written, no matter how unfair or one-sided those terms might be. People who did not read the contract before assenting believe themselves bound, and the belief persists even among those whose assent was procured by fraud. Because they believe themselves bound, those unenforceable terms affect their behavior, often to their detriment. An employee with an unenforceable noncompete might decline a job offer with a better salary or benefits or a tenant with an unenforceable liability waiver might pay for repairs necessitated by the landlord’s negligence.

For some drafters, those behavioral effects appear to be the motivation for including unenforceable terms, although Wilf-Townsend is careful not to paint with too broad a brush. An unenforceable term might appear in a contract for relatively innocuous reasons; for example, a large company might seek to reduce costs by using a standardized form, notwithstanding that it contains terms that are unenforceable in a subset of the jurisdictions in which it operates. It is not “the intention of the drafting party,” but rather “the effects of unenforceable terms on consumers and workers [that] make them an appropriate target for regulatory policy.”

The piece would be valuable if it stopped there, but Wilf-Townsend expands its contribution by analyzing what an appropriate policy response should look like. He frames the underlying question as “how the law ought to distribute the costs of acquiring and applying legal knowledge,” which “implicates both the traditional private-law goal of cost minimization as well as the public-law goal of access to justice.”

With regard to cost minimization, under the status quo, a company that expects to enter a contract of adhesion with a large number of counterparties is likely to hire a lawyer to assist with drafting and review. As a result, the marginal cost of having the lawyer identify and remove any clearly unenforceable provisions should be fairly small. By contrast, a consumer or employee who is a counterparty to the contract would incur much larger costs in obtaining review of the contract, even after they became aware (as most are not) that it might contain unenforceable terms. Moreover, all counterparties would have to incur those costs to achieve the same effect as the drafter obtaining legal assistance once. The drafter is thus “the ‘least-cost avoider’ for preventing the harm that arises from mistaken beliefs about contractual obligations.”

With regard to access to justice, Wilf-Townsend notes “the huge disparities in access to legal knowledge characteristic of the United States.” He does not simply present the bare statistics about access to counsel that are, by now, depressingly familiar. Instead, he paints a more textured picture of the legal needs of people without high incomes or significant wealth. Not only do those individuals encounter more legal problems, but their legal problems are more likely to involve a contract drafted by a more powerful party–such as a landlord, employer, or financial institution. Allocating to them the costs of acquiring and applying legal knowledge about the terms of the contracts presented to them by more powerful parties exacerbates existing disparities.

After marshalling this support for the proposition that the status quo is untenable, Wilf-Townsend takes care not to overstate his case, noting that “there are likely to be at least some circumstances where the real-world harm from unenforceable contract terms is minimal or nonexistent.” Moreover, it is not always obvious whether a particular term is enforceable, because “unenforceability changes over time, is different in different jurisdictions, depends on particular factual circumstances, and can be adjudicated at different levels of abstraction.” Wilf-Townsend evaluates the pros and cons of different enforcement options in light of those complicating factors, proposing an enforcement regime in which public actors could seek statutory damages if a drafter with a large number of counterparties included contractual terms that were clearly unenforceable at the time of entering the contract.

I thoroughly enjoyed this piece and, despite having been familiar with some of the research it discusses, learned a great deal from it. The article weaves together an impressive range of scholarship and data into a seamless and persuasive argument for change, making a proposal that reflects a balance of hope and pragmatism. Both the quality of the arguments and the quality of the writing made it a real pleasure to read. I highly recommend it.

An End to Arbitration Exceptionalism?

Jul 15, 2025 Pamela BookmanAdd a Comment

Pamela Bookman

Privatization of traditionally public government functions is all the rage in the second Trump administration. The news is rife with suggestions of privatizing everything from delivering the mail to keeping airplanes aloft to tracking the weather. These developments seem consistent with the Supreme Court’s longtime trends of favoring privatization of their own bread and butter—public adjudication in court. Since 1980, the Court has treated arbitration agreements with special status, pursuing a “liberal federal policy favoring arbitration agreements,” while showcasing a hostility to court litigation. Pro-arbitration policies are popular around the world for commercial contracts. But the Supreme Court’s particular flavor of arbitration favoritism has led to a certain American arbitration exceptionalism—a pro-arbitration policy not just for international commercial contracts and other business-to-business contexts, but for employment and consumer contracts (for which other countries do not countenance arbitration given the imbalance of bargaining power between the parties). Today’s legal environment might lead one to expect Supreme Court support for arbitration and privatization of dispute resolution only to grow.

But Myriam Gilles, who has been tracking and criticizing these trends for a long time, provides some reason for optimism that the Court might reverse course. Gilles’s latest article, Arbitration Exceptionalism, charts the rise and, she suggests, potential coming fall of arbitration exceptionalism, particularly since the Supreme Court’s 2022 opinion in Morgan v. Sundance.

Morgan seems to emphasize an equal-treatment policy for arbitration (arbitration contracts should be treated like any other contracts) rather than a preferential-treatment policy, or “arbitration exceptionalism.” If the Court follows this reading of Morgan, the future could hold more public litigation and possibly a rebirth for class actions in employment and consumer cases. It opens a small door towards this possible future, but it will require work to get through it. Acknowledging the challenges, Gilles lays out the path.

Morgan involved a Taco Bell employee’s putative class action against Sundance (Taco Bell’s owner), alleging violations of the Fair Labor Standards Act (“FLSA”). For a while, Sundance seemed to ignore the arbitration clause in Morgan’s job application, participating in litigation for almost eight months. Then, just before the pretrial conference, Sundance moved to compel arbitration. Morgan argued that Sundance, by litigating the claim, had waived its right to invoke arbitration. The Eighth Circuit disagreed, applying a special rule for waiving arbitration rights. In addition to showing that the defendant’s conduct was inconsistent with an assertion of the right (which is common to all waiver doctrines), the plaintiff must show that the inconsistent litigation conduct prejudiced the plaintiff. This arbitration-specific prejudice requirement, present in nine circuits, was supposed to vindicate the Supreme Court’s pro-arbitration policy.

The Supreme Court held that courts may not create special, arbitration-specific variants of federal procedural rules to support the FAA’s “policy favoring arbitration.” The federal policy, Justice Kagan explained for the Court, is about putting arbitration agreements on equal footing with other contracts, “not about fostering arbitration.”

Gilles’s prior work flagged Morgan as “big news,” because it “suggest[s] that all judge-made, arbitration-specific rules created in the service of a supposed policy favoring arbitration are ripe for reexamination.” Doctrinally, it lowers the standard in nine circuits for using waiver as a basis for resisting late attempts to pursue arbitration, by virtue of removing the prejudice requirement. Some circuits agree that Morgan overruled their previous adherence to a “strong federal policy favoring enforcement of arbitration agreements.” Others reject such a broad reading.

Arbitration Exceptionalism “undertake[s] a systematic examination” of the arbitration-specific rules that courts have developed in furtherance of the pro-arbitration policy, seeking to identify which rules may be subject to a Morgan-based retrenchment. The list provides a plan of attack for advocates who have long been challenging the pro-arbitration policy’s interference with other kinds of rights, including access to class actions. In this sense, it could play a role similar to the appendix that the DOJ affixed to its brief in Moritz v. Commissioner of Internal Revenue, which provided Ruth Bader Ginsburg with the list of federal laws that differentiated people on the basis of sex—the laws that she then systematically challenged with remarkable success.

One target is Lamps Plus v. Varela, holding that state law contract interpretation doctrine of contra proferentem (contracts should be interpreted against the drafter, which would mean, for example, against the employer in employment contracts) falls to the federal policy that contract ambiguities must be resolved in favor of arbitration. Interpreting ambiguous arbitration clauses against the drafter, as contra proferentem may instead require, could lead to fewer arbitrations. Likewise, Morgan may undermine the “arbitration-by-estoppel jurisprudence” based on Arthur Andersen v. Carlisle, which seems to favor binding third parties to arbitration agreements through expansive interpretations of state estoppel doctrine. Both cases led to more arbitration, but both “rest[] on precisely the sort of arbitration exceptionalism that Morgan disavows.”

Gilles is sensitive to the challenges of unraveling the “hegemonic arbitration edifice that has stood now for decades.” So am I. She tracks the fate of Morgan in the lower courts since 2022, finding a mixed bag. Many courts are reluctant to read Morgan as the sea change that Gilles envisions. There are also several plain vanilla instances of enforcement of arbitration clauses or applications of Supreme Court precedents that seem unlikely to be unmoored.

I would also raise some doctrinal challenges that Gilles seems to overlook in this draft. Morgan articulates an equal-treatment principle when courts are developing federal procedural rules like waiver. But most of the Court’s Federal Arbitration Act (FAA) cases have involved a pro-arbitration policy effectively preempting principles of state contract law, such as unconscionability. Part of the quandry lies in defining what it means to treat different kinds of contracts equally. After all, AT&T v. Concepcion also starts with the statement that “courts must place arbitration agreements on an equal footing with other contracts.” We may be at a particularly difficult moment for reversing course on a pro-arbitration policy, given the current political climate favoring privatization and the American public’s waning confidence in courts and waning trust in public institutions generally.

Gilles understands that taking Morgan for its fullest possible import would require educating a new generation and shifting away from assumptions of federal courts’ pro-arbitration proclivities. This would require reimagining what equal footing for arbitration means in a modern world rife with arbitration clauses in employment and consumer contracts. It may also require the public to reestablish its trust in courts. Legal change takes time. The arc of the law may bend towards justice, but it also needs to be pushed. Gilles’s work not only pushes but provides a helpful roadmap to guide the course.

Expanding Access to Civil Remedies for Domestic Violence

Jun 3, 2025 Allan ErbsenAdd a Comment

Allan Erbsen

Civil Protection Orders (CPOs) empower targets of domestic violence to enlist the state as an ally. Streamlined procedures enable plaintiffs to avert abuse that public institutions might otherwise be unable to address. In contrast to criminal remedies, civil remedies focus on protecting victims rather than punishing abusers, rely on robed magistrates rather than armed officers, and require proof by a preponderance of the evidence rather than beyond a reasonable doubt. Despite creating only a parchment barrier, CPOs often have sufficient gravitas to deter abusers. When deterrence fails, CPOs facilitate arrest and prosecution.

Inadequate public knowledge about CPOs blunts their utility. Virtually all victims of domestic violence know that they can dial 911. Fewer know that they can apply for a CPO. Reformers seeking to protect victims while reducing dependence on the criminal justice system have therefore considered how to expand awareness of civil remedies.

Lisa Martin’s The Importance of Civil Pathways to Protection Orders provides valuable insight into the underuse of CPOs. The article reports the results of an empirical study reviewing nearly every CPO application filed in South Carolina’s family courts in 2019. Martin analyzed more than 3,400 files from forty-five of the state’s forty-six counties, coding for more than forty variables.

Martin uses her data to explore the causes and consequences of inadequate access to civil remedies. She offers three observations that support a striking conclusion about how resource disparities between urban and rural counties shape civil litigation.

First, plaintiffs often seek CPOs after interacting with police officers. This correlation seems obvious but is not consistent with the aspirations of CPO regimes. States developed CPOs in part to accommodate victims of domestic violence who do not want to contact the police. Prior studies show that many victims fear the consequences of contacting the police and that many victims who contact the police regret doing so. Yet Martin observes that CPOs are often not a viable alternative to calling 911 because victims do not realize that CPOs are available. Victims must contact the police to learn how to avoid the police. This is a Kafkaesque regression of the innovative CPO remedy.

Second, a corollary to relying on police is that CPO applicants often lack support from other community resources. Several counties in South Carolina have no legal aid offices and no domestic violence advocacy groups. Residents often lack access to private counsel, public transportation, and the internet. Case files in these counties confirm that guidance about CPOs comes primarily from police departments because there are few, if any, alternative sources of information. Victims in these counties who did not contact the police did not receive civil protection.

Third, a stark urban/rural disparity explains county-level variations in use of the CPO remedy. Educational and support resources are more abundant in urban areas than in rural areas. Urban victims of domestic violence generally know more about CPOs and receive more guidance than rural victims. In contrast, rural victims depend on the criminal justice system to point them toward the civil justice system. Statewide, only 20% of CPO case files contain police incident reports. The rate is much higher in rural counties; in five rural counties the rate is 100%. The 20% statewide figure underestimates the level of engagement with police because some plaintiffs do not file their incident reports. Nevertheless, the data suggests that urban victims routinely access civil remedies without police involvement while rural victims rely on police assistance.

The urban/rural divide in access to CPOs correlates with demographic disparities. The affected rural counties in South Carolina have a disproportionate number of residents who are impoverished, African American, or both.

The article’s analysis of the urban/rural divide relies on the metaphor of a “pathway” to civil protection. In urban counties, the pathway runs through several community resources; in rural counties, it runs primarily through police departments. Mitigating this disparity requires creating new pathways in rural counties. Martin therefore proposes government funding of rural advocacy resources. In particular, she suggests reorienting the U.S. Department of Justice’s Rural Domestic Violence, Dating Violence, Sexual Assault, and Stalking Program to emphasize civil rather than criminal remedies.

Martin’s study provides a powerful reminder that designing effective civil remedies requires considering the resources available to potential claimants. As she observes: “It is not enough to enact the remedy and assume people who can benefit will find their way to it.” Yet policymakers and scholars often work in urban environments. They can easily observe urban courtrooms, converse with urban judges, and canvass urban lawyers. These interactions shape their perception of problems and solutions. Rural communities confront problems that are less familiar and require solutions that are more robust. Analyzing disparities in access to CPOs highlights the limits of a one-size-fits-all approach to civil remedies.