Category: Articles

The Rise of Bankruptcy Directors

In this Article, we use hand-collected data to shed light on a troubling development in bankruptcy practice: distressed companies, especially those controlled by private equity sponsors, often now prepare for a Chapter 11 filing by appointing bankruptcy experts to their boards of directors and giving them the board’s power to make key bankruptcy decisions. These directors often seek to wrest control of self-dealing claims against shareholders from creditors. We call these directors “bankruptcy directors” and conduct the first empirical study of their rise as key players in corporate bankruptcies. While these directors claim to be neutral experts that act to maximize value for the benefit of creditors, we argue that they suffer from a structural bias because they often receive their appointment from a small community of repeat private equity sponsors and law firms. Securing future directorships may require pleasing this clientele at the expense of creditors. Indeed, we find that unsecured creditors recover on average 20% less when the company appoints a bankruptcy director. While other explanations are possible, this finding shifts the burden of proof to those claiming that bankruptcy directors improve the governance of distressed companies. Our policy recommendation, however, does not require a resolution of this controversy. Rather, we propose that courts regard bankruptcy directors as independent only if an overwhelming majority of creditors whose claims are at risk supports their appointment, making them accountable to all sides of the bankruptcy dispute.

Introduction

In August 2017, the board of directors of shoe retailer Nine West confronted a problem. The firm would soon file for Chapter 11 protection, and its hopes to emerge quickly from the proceeding were in danger due to the high probability of creditor litigation alleging that the firm’s controlling shareholder, private equity fund Sycamore Partners Management, had looted more than $1 billion from the firm’s creditors.[1] The board could not investigate or settle this litigation because it had a conflict of interest.[2]

To take control of the litigation, the board appointed two bankruptcy experts as new directors who claimed that, because they had no prior ties to Sycamore or Nine West, they were independent and could handle those claims.[3] Once the firm filed for bankruptcy, its creditors objected. They argued that the new directors still favored Sycamore because it stood behind their appointment, so the directors would “hamstring any serious inquiry into [its] misconduct.”[4] Nevertheless, the gambit was successful. The bankruptcy court allowed the new directors to take control of the litigation.[5] The new directors blocked creditor attempts to file lawsuits on their own[6] and ultimately settled the claims for about $100 million.[7]

The Nine West story illustrates the emergence of important new players in corporate bankruptcies: bankruptcy experts who join boards of directors shortly before or after the filing of the bankruptcy petition and claim to be independent[8] The new directors—typically former bankruptcy lawyers, investment bankers, or distressed debt traders—often receive the board’s power to make important Chapter 11 decisions or become loud voices in the boardroom shaping the company’s bankruptcy strategy.[9] We call them “bankruptcy directors.”

The rising prominence of bankruptcy directors has made them controversial. Proponents tout their experience and ability to expedite the reorganization and thus protect the firm’s viability and its employees’ jobs.[10] Opponents argue that they suffer from conflicts of interest that harm creditors.[11]

This Article is the first empirical study of these directors. While a voluminous literature has considered the governance of Chapter 11 firms, this Article breaks new ground in shining a light on an important change in the way these firms make decisions in bankruptcy and resolve conflicts with creditors.[12] It does so by analyzing a hand-collected sample of all large firms that filed for Chapter 11 between 2004 and 2019 that disclosed the identity of their directors to the bankruptcy court.[13] To our knowledge, it is the largest sample of boards of directors of Chapter 11 firms yet studied.[14]

We find that the percentage of firms in Chapter 11 proceedings claiming to have an independent director increased from 3.7% in 2004 to 48.3% in 2019.[15] Over 60% of the firms that appointed bankruptcy directors had a controlling shareholder and about half were under the control of private equity funds.

After controlling for firm and bankruptcy characteristics, we find that the recovery rate for unsecured creditors, whose claims are typically most at risk in bankruptcy, is on average 20% lower in the presence of bankruptcy directors. We cannot rule out the possibility that the firms appointing bankruptcy directors are more insolvent and that this explains their negative association with creditor recoveries. Still, this finding at least shifts the burden of proof to those claiming that bankruptcy directors improve the governance of distressed companies to present evidence supporting their view in this emerging debate.

We also examine a mechanism through which bankruptcy directors may reduce creditor recoveries. In about half of the cases, these directors investigate claims against insiders,[16] negotiate a quick settlement, and argue that the court should approve it to save the company and the jobs of its employees.[17] We supplement these statistics with two in-depth studies of cases in which bankruptcy directors defused creditor claims against controlling shareholders: Neiman Marcus and Payless Holdings.

Finally, we consider possible sources of pro-shareholder bias among bankruptcy directors. Shareholders usually appoint bankruptcy directors without consulting creditors. These directors may therefore prefer to facilitate a graceful exit for the shareholders. Moreover, bankruptcy directorships are short-term positions, and the world of corporate bankruptcy is small, with private equity sponsors and a handful of law firms generating most of the demand. Bankruptcy directors depend on this clientele for future engagements and may exhibit what we call “auditioning bias.”

In our data, we observe several individuals appointed to these directorships repeatedly. These “super-repeaters” had a median of 13 directorships and about 44% of them were in companies that went into bankruptcy when they served on the board or up to a year before their appointment.[18] Our data also show that super-repeaters have strong ties to two leading bankruptcy law firms.[19] Putting these pieces together, our data reveal an ecosystem of a small number of individuals who specialize in sitting on the boards of companies that are going into or emerging from bankruptcy, often with private equity controllers and the same law firms.

These findings support the claim that bankruptcy directors are a new weapon in the private equity playbook. In effect, bankruptcy directors assist with shielding self-dealing transactions from judicial intervention. Private equity sponsors know that if the portfolio firm fails, they could appoint bankruptcy directors to handle creditor claims, file for bankruptcy, and force the creditors to accept a cheap settlement.[20] Importantly, the ease of handling self-dealing claims in the bankruptcy court may fuel more aggressive self-dealing in the future.[21]

Our findings have important policy implications. Bankruptcy law strives to protect businesses while also protecting creditors. These goals can clash when creditors bring suits that threaten to delay the emergence from bankruptcy. While bankruptcy directors may aim for speedy resolution of these suits, their independence may be questionable because the defendants in these suits are often the ones who appoint them. Moreover, bankruptcy directors often bypass the checks and balances that Congress built into Chapter 11 when they seek to replace the role of the official committee of unsecured creditors (“UCC”) as the primary check on management’s use of the powers of a Chapter 11 debtor.

We argue that the contribution of bankruptcy directors to streamlining bankruptcies should not come at the expense of creditors. We therefore propose a new procedure that bankruptcy judges can implement without new legislation: the bankruptcy court should treat as independent only bankruptcy directors who, in an early court hearing, earn overwhelming support of the creditors whose claims are at risk, such as unsecured creditors or secured creditors whom the debtor may not be able to pay in full. Bankruptcy directors without such support should not be treated as independent and therefore should not prevent creditors from investigating and pursuing claims.

The creditors will likely need information on the bankruptcy directors to form their opinion, and bankruptcy judges can rule on what information requests are reasonable. This will create standardization and predictability. However, disclosure is no substitute for creditor support. Requiring disclosure without heeding creditors on the selection of bankruptcy directors will not cure bankruptcy directors’ structural biases.

Some might argue that our solution is impractical or otherwise lacking. We answer these claims. More importantly, our solution is the only way to ensure that bankruptcy directors are truly independent. If it cannot be made to work, bankruptcy law should revert to the way it was before the invention of bankruptcy directors, where federal bankruptcy judges were the only impartial actors in most large Chapter 11 cases. In such a scenario, debtors will be free to hire whomever they want to help them navigate financial distress, but the court will regard these bankruptcy directors as ordinary professionals retained by the debtor. The court should weigh the bankruptcy directors’ position against the creditors’, allow the creditors to conduct their own investigation and sue over the bankruptcy directors’ objections, and not approve settlements merely because the bankruptcy directors endorse them.

Our study also lends support to the bill recently introduced by Senator Elizabeth Warren to prevent debtors from prosecuting and settling claims against insiders.[22] Like our proposal, this bill would restore the traditional checks and balances of the bankruptcy process while allowing distressed firms to appoint directors of their choice. Still, our proposal has several advantages. It does not require new legislation, it preserves greater flexibility for the bankruptcy court and, by requiring that bankruptcy directors be acceptable to creditors, it ensures that all board decisions in bankruptcy, not just decisions regarding claims against insiders, advance creditor interests.

Our analysis also has implications for corporate law. Much of the literature on director independence in corporate law has focused on director ties to the corporation, to management, or to the controlling shareholder.[23] We explore another powerful source of dependence: dependence on future engagements by other corporations and the lawyers advising them. 

This Article proceeds as follows. Part I lays out the theoretical background to our discussion, showing how the use of independent directors has migrated from corporate law into bankruptcy law. Part II presents examples of bankruptcy director engagements from the high-profile bankruptcies of Neiman Marcus and Payless Holdings. Part III demonstrates empirically how large firms use bankruptcy directors in Chapter 11. Part IV discusses concerns that bankruptcy directors create for the integrity of the bankruptcy system and puts forward policy recommendations.

          [1].      See Notice of Motion of the 2034 Notes Trustee for Entry of an Order Granting Leave, Standing, and Authority to Commence and Prosecute a Certain Claim on Behalf of the NWHI Estate at 15, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Jan. 31, 2019) [hereinafter Notice of Motion of the 2034 Notes Trustee]; Kenneth Ayotte & Christina Scully, J. Crew, Nine West, and the Complexities of Financial Distress, 131 Yale L.J.F. 363, 373 (2021) (describing some of the transfers in detail). For example, the private equity sponsor had allegedly purchased the assets of Kurt Geiger for $136 million in April 2014 and sold them in December 2015 for $371 million. See Notice of Motion of the 2034 Notes Trustee, supra, at 34.

          [2].      See Motion of the Official Committee of Unsecured Creditors for Entry of an Order Granting Leave, Standing, and Authority to Commence and Prosecute Certain Claims on Behalf of the NWHI Estate and Exclusive Settlement Authority in Respect of Such Claims at 17, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Oct. 22, 2018) [hereinafter Nine West Standing Motion].

          [3].      See Transcript of Hearing at 43, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. May 7, 2018).

          [4].      See Nine West Standing Motion, supra note 2, at 34 (“[The lawyers for the independent directors] attended . . . depositions . . . but asked just a handful of questions of a single witness . . . . [And they] chose not to demand and review the Debtors’ privileged documents relating to the LBO . . . .”).

          [5].      See Nine West Standing Motion, supra note 2, at 13 (“The Debtors have barred the Committee from participating in its settlement negotiations with Sycamore . . . .”).

          [6].      Shortly after the unsecured creditors proposed to put the claims against the private equity sponsor into a trust for prosecution after bankruptcy, the independent directors unveiled their own settlement plan. See Notice of Filing of the Debtors’ Disclosure Statement for the Debtors’ First Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code at 1–3, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Oct. 17, 2018) [hereinafter Nine West Disclosure Statement Announcing Settlement].

          [7].      See Nine West Standing Motion, supra note 2, at 11 (seeking permission to prosecute claims for “well over $1 billion”); Soma Biswas, Nine West Settles Potential Lawsuits Against Sycamore Partners, Wall St. J. (Oct. 18, 2018, 2:12 PM), https://www.wsj.com/articles/nine-west-settles-
potential-lawsuits-against-sycamore-partners-1539886331 [https://perma.cc/RLH4-M9EU] (“Nine West Holdings Inc. unveiled Wednesday an amended restructuring plan that settles potential lawsuits against private-equity owner Sycamore Partners LP for $105 million in cash, far less than the amount the unsecured creditors committee is seeking.”).

          [8].      See, e.g., Notice of Appearance—Lisa Donahue, AlixPartners, Petition (Feb. 19, 2020), https://www.petition11.com/news/2020/2/19/notice-of-appearance-lisa-donahue-alixpartners [https://
perma.cc/NA6H-69AT] (noting that “[independent directors in bankruptcy have] . . . become the latest cottage industry in the restructuring space”).

          [9].      See Regina Stango Kelbon, Michael DeBaecke & Jonathan K. Cooper, Appointment of Independent Directors on the Eve of Bankruptcy: Why The Growing Trend? 17 (2014) (“Employing an outside director to exercise independent judgment as to corporate transactions in bankruptcy may not only provide additional guidance to a suffering business, but can make the decision-making process seem right in the eyes of stakeholders and ultimately, the court.”).

        [10].      See Robert Gayda & Catherine LoTempio, Independent Director Investigations Can Benefit Creditors, Law360 (July 24, 2019, 3:55 PM), https://www.law360.com/articles/1174248/independent-director-investigations-can-benefit-creditors [https://web.archive.org/web/20220401015757/https://
http://www.law360.com/articles/1174248/independent-director-investigations-can-benefit-creditors%5D (noting that independent directors are helpful in bankruptcy where “speed to exit is paramount”).

        [11].      See, e.g., “Independent” Directors Under Attack, Petition (May 16, 2018), https://petition.substack.com/p/independent-directors-under-attack [https://perma.cc/G9RY-U9D4]; Lisa Abramowicz, Private Equity Examines Its Distressed Navel, Bloomberg (May 26, 2017), https://www.bloomberg.com/opinion/articles/2017-05-26/payless-shoesource-private-equity-examines-its-distressed-navel [https://perma.cc/NC4H-DK9M]; Mark Vandevelde & Sujeet Indap, Neiman Marcus Director Lambasted by Bankruptcy Judge, Fin. Times (June 1, 2020), https://www.ft.com/content/
0166cb87-ea50-40ce-9ea3-b829de95f676 [https://perma.cc/5VY4-VQA8]; American Bankruptcy Institute, RDW 12 21 2018, Youtube (Dec. 20, 2018), https://www.youtube.com/watch?v=
Ah8RkXYdraI&ab_channel=AmericanBankruptcyInstitute [https://perma.cc/KG37-TJUC]; The “Weil Bankruptcy Blog Index,” Petition (Jan. 10, 2021), https://petition.substack.com/p/weilbankruptcy
blogindex [https://perma.cc/L356-TFPY] (calling the Nine West case a “standard episode of ‘independent director’ nonsense”).

        [12].      See, e.g., Douglas G. Baird & Robert K. Rasmussen, Antibankruptcy, 119 Yale L.J. 648, 651 (2010) (considering creditor conflict); Douglas G. Baird & Robert K. Rasmussen, The End of Bankruptcy, 55 Stan. L. Rev. 751, 784 (2002); David A. Skeel Jr., Creditors’ Ball: The “New” New Corporate Governance in Chapter 11, 152 U. Pa. L. Rev. 917, 919 (2003) (considering the role of secured creditors); Michelle M. Harner & Jamie Marincic, Committee Capture? An Empirical Analysis of the Role of Creditors’ Committees in Business Reorganizations, 64 Vand L. Rev. 749, 754–56 (2011) (considering the role of unsecured creditors). For other articles that, like this Article, criticize recent changes in Chapter 11 practice, see generally Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079 (2022); Lynn M. LoPucki, Chapter 11’s Descent into Lawlessness, 96 Am. Bankr. L.J. 247 (2022).

        [13].      Our full dataset consists of the boards of directors of 528 firms and the 2,895 individuals who collectively hold 3,038 directorships at these firms. While all Chapter 11 firms are required to provide information on their board to the bankruptcy court, not all comply with the law. For more on our sample, see infra Part III.

        [14].      See infra note 152 and accompanying text.

        [15].      We identified bankruptcy directors using information from each firm’s disclosure statement. We then searched those disclosure statements and identified 78 cases in which the debtor represented that its board was “independent” or “disinterested.” See infra Section III.C.1. Independent directors are not new to bankruptcy. WorldCom, for example, used independent directors as part of its strategy to get through the bankruptcy process in its 2003 Chapter 11 filing. See Kelbon, supra note 9, at 20. The change is that a practice that was once relatively uncommon has become ubiquitous and a central and standard part of the process of preparing for a Chapter 11 bankruptcy filing, leading to the growth of an industry of professional bankruptcy directors who fill this new demand for bankruptcy experts on the board of distressed firms. See infra Section III.C.1

        [16].      See infra Table 2.

        [17].      In many cases, a debtor-in-possession contract that requires the firm to leave bankruptcy quickly heightens the debtor’s urgency. See, e.g., Frederick Tung, Financing Failure: Bankruptcy Lending, Credit Market Conditions, and the Financial Crisis, 37 Yale J. on Regul. 651, 672 (2020).

        [18].      See infra Section III.C.4.

        [19].      See infra Section III.C.5.

        [20].      See Telephonic/Video Disclosure Statement and KEIP Motion Hearing at 34, In re Neiman Marcus Grp. Ltd. LLC, No. 20-32519 (Bankr. S.D. Tex. July 30, 2020) [hereinafter Neiman Marcus Settlement Transcript] (arguing that independent directors are changing incentives for private equity sponsors, who will be “encouraged to asset strip”).

        [21].      As Sujeet Indap and Max Frumes write, a leading bankruptcy law firm that advises debtors “developed a reputation for keeping a stable of ‘independent’ board of director candidates who could parachute in to bless controversial deal making.” Sujeet Indap & Max Frumes, The Caesars Palace Coup: How a Billionaire Brawl Over the Famous Casino Exposed the Power and Greed of Wall Street 419 (2021).

        [22].      See Alexander Saeedy, Elizabeth Warren Floats Expanded Powers for Bankruptcy Creditors Against Private Equity, Wall St. J. (Oct. 20, 2021, 1:17 PM), https://www.wsj.com/articles/elizabeth-warren-floats-expanded-powers-for-bankruptcy-creditors-against-private-equity-11634750237 [https://
perma.cc/P3XE-U24Y].

        [23].      See generally Lucian A. Bebchuk & Assaf Hamdani, Independent Directors and Controlling Shareholders, 165 U. Pa. L. Rev. 1271 (2017); Da Lin, Beyond Beholden, 44 J. Corp. L. 515 (2019).

* Professor of Law, Harvard Law School.

† Professor of Law, Tel Aviv University, Faculty of Law.

‡ Associate Professor, Tel Aviv University, Faculty of Law; Lecturer on Law, Harvard Law School. We thank Kenneth Ayotte, Lucian Bebchuk, Vincent Buccola, Anthony Casey, Alma Cohen, Elisabeth de Fontenay, Jesse Fried, Lynn LoPucki, Tobias Keller, Michael Klausner, Michael Ohlrogge, Adam Levitin, Robert Rasmussen, Adriana Robertson, Mark Roe, Daniel Sokol, Robert Stark, Roberto Tallarita, Robert Tennenbaum, and seminar and conference audiences at the Annual Meeting of the American Law and Economics Association, Bay Area Corporate Law Scholars Workshop, the Bar Ilan University Law Faculty Seminar, the Corporate Law Academic Webinar Series (CLAWS), the Duke Faculty Workshop, Florida–Michigan–Virginia Virtual Law and Economics Seminar, the Harvard Law School Empirical Law and Economics Seminar, the Harvard Law School Faculty Workshop, Harvard Law School Law and Economics Workshop, Tel Aviv University Faculty of Law Workshop, the Turnaround Management Association, the University of Toronto Seminar in Law and Economics, and the University of California, Berkeley Law, Economics, and Accounting Workshop for helpful comments. We also thank Noy Abramov, Jacob Barrera, Jade Henry Kang, Spencer Kau, Victor Mungary, Julia Staudinger, Or Sternberg, Jonathan Tzuriel, and Sara Zoakei for excellent research assistance. This research was supported by The Israel Science Foundation (Grant No. 2138/19).

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Cannon Fodder, or a Soldier’s Right to Life

In recent years, hundreds of American service members have died in training exercises and routine non-combat operations, aboard American warships, tactical vehicles, and fighter planes. They have died in incidents that military investigations and congressional hearings and journalists deem preventable, incidents stemming from the U.S. government delaying maintenance of deteriorating equipment or staffing vessels with crews that are too small or sending soldiers and sailors and marines on missions with inadequate training. After someone dies, high-level officials sign off on investigations, declare that those lost will not be forgotten, and occasionally institute changes in training or maintenance. Meanwhile, the law and legal scholarship say nothing about the government’s failures to train and equip service members, reflecting and reinforcing the notion that soldiers offer illimitable service to the state but cannot ask for even the most basic legal protections in return.

These deaths, and the government failures that precede them, have been absent from legal scholarship, but this Article surfaces them and centers them. While U.S. law offers no way to reckon with the lapses in leadership at the heart of such incidents, international human rights law has provided an architecture for understanding government accountability for failures to adequately train or equip service members. And yet, these events continue to go unnoticed.

This Article documents the human rights community’s neglect of these events and of the opportunity to give legal significance to the U.S. government’s failure to protect its own service members, and it situates this neglect in the broader, long-standing conception of soldiers as mere instruments of the state. The corpus of human rights law thus provides a set of categories and doctrines to name and classify the government’s conduct, and it also offers, through its recognition of the legitimacy of a soldier’s claims upon their government, a necessary corrective to a culture of treating American service members as volunteering for unquestioning sacrifice.

Introduction

The term “cannon fodder” is conventionally traced to Shakespeare’s Henry IV, Part 1. The play depicts a process of reconciliation between father and son; King Henry IV must quell a rebellion, and Prince Hal transforms from wayward youth into a valiant fighter. Along the way, Prince Hal’s friend Falstaff, technically a nobleman but penniless and disreputable, contributes to the war effort by taking bribes from “good householders, yeoman’s sons” who can pay to avoid going to war, while gathering up instead a motley crew of men “as ragged as Lazarus” to send to battle.[1] When Hal encounters this band of would-be warriors, he derides them as “pitiful rascals,” but Falstaff—a comic figure who betrays both his heartlessness and his willingness to name the exploitation in which he himself participates—protests that they are fit to serve their purpose: “Tut, tut; good enough to toss; food for powder, food for powder; they’ll fill a pit as well as better.”[2]

Much has changed since the days of Shakespeare. The singsong “food for powder” mutated, first emerging in German as kanonenfutter, before jumping back to English in the current form we now know.[3] War, too, has transformed. Today, war is no longer recognized as a legitimate instrument of foreign policy.[4] Today, a robust body of law governs both the resort to armed force and the conduct of hostilities.[5] Today, the term “cannon fodder” is no longer played for laughs.[6]

And yet, the status of military service members remains murky. We might shift uncomfortably in our seats when Falstaff jokes about the disposable nature of these warriors, but what does it mean to respect the lives of soldiers?[7] In the United States, the answer to this question usually relates to how we treat service members when they return home. We offer them thanks for their service, proper medical care and mental health support, access to education and jobs.[8] On the floor of the House of Representatives, during a debate on a military appropriations bill, Representative Bob Filner embraced these practices as an American tradition, one with roots all the way back to the founding: “General Washington said over 220 years ago,” declared Filner, “The single most important factor in the morale of our fighting troops is a sense of how they’re going to be treated when they come home.”[9]

We say less, however, about what happens to service members while they are serving. When they are fighting wars, yes, we “support the troops”—that much is a “fixed point[] of American politics.”[10] But there is little public discourse, and hardly any legal scholarship, on the U.S. government’s obligations to adequately protect soldiers—despite an urgent need for it. War is of course a dangerous business, one that—in what might be described at the same time as a deal with the devil and a simple reflection of state interests—international law has continued to allow, even with the advent of the corpus of human rights law.[11] But service members are dying and suffering severe injuries not only at the hands of the enemy on the battlefield, but also in incidents deemed “unacceptable” and “preventable” even by military leaders. In the early days of the Iraq War, for example, a secret study by the U.S. Department of Defense found that some eighty percent of marines who died from upper-body wounds could have survived if they had extra body armor—armor that was available but that the Pentagon decided not to provide.[12] These failures of prevention and protection are not limited to combat. In the last fifteen years, hundreds of American service members have died during training exercises and routine non-combat operations, aboard American warships and tactical vehicles and fighter planes.[13] They are given deteriorating equipment or crews that are too small or inadequate training. After someone dies, high-level officials sign off on investigations, declare that those lost will not be forgotten, and occasionally institute changes in training or maintenance.[14]

Meanwhile, the law nearly completely ignores these events. When congressional hearings are convened in the aftermath of these events, their focus is on military readiness, overshadowing questions of the legal obligations of the government or the legal rights of service members.[15] Legal scholarship, despite robust engagement on crucial questions of human rights in wartime,[16] generally focuses on protections for civilians and enemy soldiers, neglecting discussion of what a government owes its service members in proper training, well-maintained equipment, or sufficiently staffed crews.[17] In the pages of U.S. law reviews, the main focus of any analysis of government accountability to service members is the Feres doctrine, which prevents civil suits against the government for injuries sustained incident to military service.[18] But entirely overlooked are the deaths and injuries that stem from inadequate training and shoddy equipment, from putting lives at risk in order to speed operational tempo or rush into deployment. Their absence from the literature suggests that they are seen as routine, part of the job, part of the unquestioning sacrifice for which these individuals have willingly volunteered. Soldiers are expected to give of themselves completely; because they accept the possibility of death on the battlefield on account of their military service, it seems, they must accept the possibility of death outside of it, too. Even if no longer cannon fodder, in the national socio-legal imaginary[19] they have been endowed with a different kind of inhumanity, as individuals whose service is seemingly illimitable, who give their lives but are permitted to ask almost nothing from the governments they serve.[20]

Across the Atlantic, international human rights law paints a starkly different picture. In 2013, the United Kingdom Supreme Court held in Smith v. Ministry of Defence that the British government has an affirmative obligation under human rights law to protect the lives of service members.[21] The suit was initiated by the families of three British soldiers who had been killed in Iraq by roadside bombs when they were traveling in Snatch Land Rovers, vehicles that the government had initially developed in the 1990s to grab suspects off the street in Northern Ireland.  As dozens more soldiers died in those vehicles, the Snatch Rovers came to be known in the wars in Iraq and Afghanistan as “mobile coffins”—a far cry from the level of protection that was needed, said the soldiers, their families, and, as would be later revealed, the government itself.[22] The Court held not only that the government’s obligations under the European Convention on Human Rights extends to military service members deployed overseas, but also that the government’s decision to use vehicles that would not adequately protect those individuals could be a violation of its Convention obligations.[23] In the vision of human rights law, the soldier is not expected to sacrifice everything for the state. Instead, the government is expected to fulfill a duty toward the soldier, just as it is expected to protect any other person under its care.

This Article takes as its starting point the juxtaposition of these two vastly contrasting approaches—on the one hand, the expectation of complete sacrifice by a soldier, and on the other, the expectation that the government owes a duty of care to the soldier even while the soldier takes on the significant risks inevitably imposed by the position. From this foundation, it makes two contributions. First, the Article documents the absence of engagement by scholars and practitioners of human rights with the question of U.S. government failures to adequately train and equip military service members. Even though human rights instruments applicable to the United States—including the International Covenant on Civil and Political Rights (“ICCPR”) and the American Declaration on the Rights and Duties of Man—could provide the basis for interpretations similar to Smith in the European system, scholars and advocates have entirely neglected any exploration of whether or how the many failures of the U.S. government leading to service member injuries and deaths may constitute violations of its human rights obligations.[24] This Article fills that gap. Second, the Article situates this neglect within the law’s broader failure to recognize the soldier as an individual endowed with human rights, and it analyzes the consequences of conceiving of soldiers as rights-bearers. Debating the government’s obligation to train and equip service members through the language and legal framework of rights emphasizes that soldiers are agents, not mere instruments of the state who can be disposed of however the government chooses. In so doing, recognition of the soldier’s human rights can chip away at the expectations of unquestioning sacrifice that pervade social and legal treatment of service members.

This Article intervenes in a burgeoning literature on the applicability of international human rights in armed conflict and specifically on the meaning of the right to life in armed conflict. As bodies such as the International Court of Justice and the Human Rights Committee have articulated the scope and application of particular human rights in armed conflict,[25] some scholars have considered how and whether obligations of the law of war, such as the principle of distinction and the requirement of proportionality in attack, should be interpreted to incorporate the human rights protection against arbitrary deprivation of life.[26] Others, meanwhile, have argued that the criminalization of aggression should be understood as rooted in the protection of the right to life in armed conflict.[27] Overlooked in this literature, however, have been the deaths of service members described by journalists and members of Congress and official government investigations as “preventable”[28]: deaths that are traced to failures to properly maintain ships and aircraft and land vehicles and their treads and navigation systems and propellor blades; deaths that stem from failures to adequately train service members to use the equipment they are responsible for;[29] deaths that—like those of Phillip Hewett and Lance Ellis, the British soldiers whose deaths gave rise to Smith—can be traced to decisions on the part of the state to underequip soldiers for combat.[30]

It is these deaths that the Smith case and its underlying principles speak to but that human rights law and scholarship have not yet adequately considered. And it is these deaths to which this Article turns its attention, not only explaining the relevance of human rights law in identifying the U.S. government’s responsibility for training and equipping its service members, but also offering a normative argument for why rendering these deaths a matter of human rights law should form a part of the larger human rights project of subjecting war to its regulation.[31] In short, this Article hopes to do these soldiers justice.

This Article proceeds in three parts. To situate the arguments of this Article in recent events, Part I presents an account of two collisions of Navy destroyers that caused the deaths of seventeen sailors in 2017. The goal of this Part is primarily descriptive, as these are events that have clear parallels with the facts underlying Smith and that have clear legal implications, and despite that, they have received no dedicated attention in legal scholarship.[32] These collisions, replete with high-level leaders’ preventable errors and even negligence, offer representative examples that ground Part II, which explains the legal characterizations that are available to describe these deaths under the frameworks available both in U.S. law and in international human rights law. Part III documents how and analyzes why situations like these collisions remain overlooked. It first explains how the human rights approach discussed in Part II could be used to seek accountability for the U.S. government’s failures with respect to incidents like the McCain and Fitzgerald collisions, and so many more. It then turns to detailing and explaining the absence of any such efforts in human rights law and to analyzing the significance of a human rights framing of situations like the Navy collisions. Bringing human rights law to bear on the U.S. government’s failures to adequately equip and train its troops not only makes clear that war is no longer off-limits to human rights as a general matter, but it also declares with the authority of law that soldiers are not to be sacrificed unquestioningly to the cause of war. By bringing service members’ lives more squarely into its realm, human rights law rejects the notion that soldiers are mere cannon fodder to be disposed of however the state pleases.

          [1].      William Shakespeare, Henry IV, Part 1 act 4, sc. 2, ll. 2382, 2392.

          [2].      Id. ll. 2433–35.

          [3].      Charles Edelman, Shakespeare’s Military Language: A Dictionary 132–33 (2000).

          [4].      See U.N. Charter art. 2 (prohibiting non-defensive use or threat of armed force by states); Mary Ellen O’Connell, The power and Purpose of International Law: Insights from the Theory & Practice of Enforcement 180 (2008); see also Saira Mohamed, Restructuring the Debate on Unauthorized Humanitarian Intervention, 88 N.C. L. Rev. 1275, 1317–21 (2010) (discussing the nature of military force as a community instrument under the U.N. Charter system). See generally Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017).

          [5].      E.g., Jakob Kellenberger, Foreword to Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, Volume 1: Rules xv, xv–xvii (2009).

          [6].      See David Ellis, Falstaff and the Problems of Comedy, 34 Cambridge Q. 95, 99–100 (2005).

          [7].      This Article uses “soldier” in the colloquial sense, that is, to describe a person who serves in the military. The term thus includes not only those in a state’s army, but also services such as the air force or navy. See Soldier, Merriam-Webster’s Collegiate Dictionary (11th ed. 2012).

          [8].      E.g., Phillip Carter, What America Owes Its Veterans: A Better System of Care and Support, Foreign Affs., Sept./Oct. 2017, at 115.

          [9].      154 Cong. Rec. 9238 (2008) (statement of Rep. Bob Filner); see also, e.g., Loretta Sanchez, What We Owe Our Troops, Hill (May 20, 2015, 8:35 PM), https://thehill.com/special-reports/
tommorrows-troops-may-21-2015/242772-what-we-owe-our-troops [https://perma.cc/PY73-FPPV].

        [10].      Cheyney Ryan, Democratic Duty and the Moral Dilemmas of Soldiers, 122 Ethics 10, 18–19 (2011).

        [11].      See Karima Bennoune, Toward a Human Rights Approach to Armed Conflict: Iraq 2003, 11 U.C. Davis J. Int’l L. & Pol’y 171, 174–75 (2004); Frédéric Mégret, What Is the Specific Evil of Aggression, in The Crime of Aggression: A Commentary 1398, 1432 (Claus Kreß & Stefan Barriga eds., 2017); Thomas W. Smith, Can Human Rights Build a Better War?, 9 J. Hum. Rts. 24, 24 (2010).

        [12].      Michael Moss, Pentagon Study Links Fatalities to Body Armor, N.Y. Times (Jan.
7, 2006), https://www.nytimes.com/2006/01/07/politics/pentagon-study-links-fatalities-to-body-armor.
html [https://perma.cc/JF67-55P9].

        [13].      See, e.g., Nat’l Comm’n on Mil. Aviation Safety, Report to the President and the Congress of the United States 1 (2020) [hereinafter NCMAS Report]; Nat’l Transp. Safety Bd., NTSB/MAR-19/01 PB2019-100970, Marine Accident Report: Collision Between US Navy Destroyer John S McCain and Tanker Alnic MC, Singapore Strait, 5 Miles Northeast of Horsburgh Lighthouse, August 21, 2017, at 21 (2019) [hereinafter NTSB Report].

        [14].      See, e.g., Hearing to Receive Testimony on the United States Indo-Pacific Command and United States Forces Korea in Review of the Defense Authorization Request for Fiscal Year 2020 and the Future Years Defense Program: Hearing Before the S. Comm. on Armed Servs., 116th Cong. 82 (2019) [hereinafter Indo-Pacific Command Hearing] (statement of Admiral Philip S. Davidson) (explaining that he “produced a 170-page report with 58 recommendations” after the two Naval collisions of 2017 and that “the Navy has been moving out on those recommendations to provide the kind of unit personnel training, to provide advice and resources to the type commanders, the fleet commanders, the Naval Systems Command, all with recommendations to improve [the] situation”).

        [15].      See, e.g., Navy Readiness—Underlying Problems Associated with the USS Fitzgerald and USS John S. McCain: Hearing Before the Subcomm. on Readiness & Subcomm. on Seapower and Projection Forces of the H. Comm. on Armed Servs., 115th Cong. 21 (2017) [hereinafter Joint Subcommittees 2017 Hearing]; Recent United States Navy Incidents at Sea: Hearing Before the S. Comm. on Armed Servs., 115th Cong. 6 (2017) [hereinafter SASC September 2017 Hearing]. During the Senate Armed Services Committee Hearing, Senator John McCain emphasized obligation during his opening remarks, when he noted “our sacred obligation to look after the young people who . . . serve in [our] military.” SASC September 2017 Hearing, supra, at 3.

        [16].      See, e.g., International Humanitarian Law and International Human Rights Law (Orna Ben-Naftali ed., 2011) (collecting essays on interaction between international humanitarian law and human rights law); Theoretical Boundaries of Armed Conflict and Human Rights (Jens David Ohlin ed., 2016) (same).

        [17].      See infra notes 205–07 and accompanying text (discussing limited scholarship on these questions); Saira Mohamed, Abuse by Authority: The Hidden Harm of Illegal Orders, 107 Iowa L. Rev. 2183, 2212–17 (2022) (discussing international law obligations of a state toward its own soldiers).

        [18].      See Feres v. United States, 340 U.S. 135, 146 (1950); infra Section II.A (discussing the Feres doctrine).

        [19].      See Charles Taylor, Modern Social Imaginaries 23–26 (2003) (explaining the idea of the “social imaginary,” on which the concepts of the legal imaginary and sociolegal imaginary draw, as “the ways people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations”); see also Cornelius Castoriadis, The Imaginary Institution of Society 145 (Kathleen Blamey trans., 1987) (describing the social imaginary as that “which gives a specific orientation to every institutional system, . . . the source of that which presents itself in every instance as an indisputable and undisputed meaning, the basis for articulating what does matter and what does not”).

        [20].      See infra Section III.A.2.

        [21].      See Smith v. Ministry of Defence [2013] UKSC 41.

        [22].      James Sturcke, SAS Commander Quits in Snatch Land Rover Row, Guardian (Nov. 1, 2008, 5:17 AM), https://www.theguardian.com/uk/2008/nov/01/sas-commander-quits-afghanistan [https://
perma.cc/5926-2JJ8]; Comm. of Privy Couns., 11 The Report of the Iraq Inquiry 23–24 (2016) [hereinafter Chilcot Report].

        [23].      See infra Section II.B.

        [24].      See infra Section III.A.

        [25].      See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9); Armed Activities on the Territory of the Congo (Dem. Rep. of the Congo v. Uganda), Judgment, 2005 I.C.J. 168 (Dec. 19); Hum. Rts. Comm., General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶¶ 64, 69–70, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018) [hereinafter General Comment 36].

        [26].      See, e.g., Michael Newton & Larry May, Proportionality in International Law 121–54 (2014); Evan J. Criddle, Proportionality in Counterinsurgency: Reconciling Human Rights and Humanitarian Law, in Counterinsurgency law: New Directions in Asymmetric Warfare 24, 34 (William Banks ed., 2013).

        [27].      See Tom Dannenbaum, The Crime of Aggression, Humanity, and the Soldier 13 (2018); Mégret, supra note 11, at 1428, 1440–44; see also Eliav Lieblich, The Humanization of Jus ad Bellum: Prospects and Perils, 32 Eur. J. Int’l L. 579, 581 (2021).

        [28].      E.g., Update on Navy and Marine Corps Readiness in the Pacific in the Aftermath of Recent Mishaps, Hearing Before the Subcomm. on Seapower and Projection Forces & the Subcomm. on Readiness of the H. Comm. on Armed Serv., 116th Cong. 2 (2020) (statement of Hon. Robert J. Wittman, Ranking Member, Subcomm. on Seapower and Projection Forces) (describing “loss of life associated with Navy surface forces and Marine Corps aviation forces” as “preventable”); id. at 4 (statement of Hon. John Garamendi, Chair, Subcomm. on Readiness) (describing sailors and marines’ deaths in surface ship and aviation incidents as “preventable”); U.S. Gov’t Accountability Off., GAO-21-361, Military Vehicles: Army and Marine Corps Should Take Additional Actions to Mitigate and Prevent Training Accidents 26 (2021); see also U.S. Dep’t of the Navy, Report on the Collision Between USS Fitzgerald (DDG 62) and Motor Vessel ACX Crystal and Report on the Collision Between USS John S. McCain (DDG 56) and Motor Vessel ALNIC MC 20, 59 (2017), https://s3.document
cloud.org/documents/4165320/USS-Fitzgerald-and-USS-John-S-McCain-Collision.pdf [https://perma.
cc/5D5U-L52T] [hereinafter Navy Reports on Fitzgerald and McCain] (describing collisions as “avoidable”); Alex Horton & Gina Harkins, Military’s Effort to Reduce Deadly Vehicle Accidents Deemed Inadequate, Wash. Post (July 14, 2021, 4:55 PM), https://www.washingtonpost.com/national-
security/2021/07/14/military-rollover-deaths-gao-report [https://perma.cc/NWT9-9DWG] (discussing findings of a Government Accountability Office report on noncombat tactical vehicle accidents that the “military didn’t take sufficient action to reduce . . . grievous, preventable incidents” causing the deaths of more than 120 service members in a decade).

        [29].      See infra Part I.

        [30].      See 11 Chilcot Report, supra note 22, at 23–24.

        [31].      This Article focuses on the U.S. military, but these concerns are not unique to the United States. The Smith case of course deals with the United Kingdom’s involvement in Iraq, but the same concerns have been raised with respect to its military actions in Afghanistan, and the Italian government, too, has been accused of not adequately equipping its soldiers. Cecilia Åse, Monica Quirico & Maria Wendt, Gendered Grief: Mourners Politicisation of Military Death, in Gendering Military Sacrifice: A Feminist Comparative Analysis 145, 155 (Cecilia Åse & Maria Wendt eds., 2019). Similar questions could be raised regarding the lack of proper training and equipment of Israeli soldiers in the 2006 Lebanon War. See Press Release, PM Received the Final Winograd Report (Jan. 30, 2008), https://www.
gov.il/en/Departments/news/spokewinog300108 [https://perma.cc/S443-6R8C]; see also Anthony H. Cordesman with George Sullivan & William D. Sullivan, Ctr. for Strategic & Int’l Stud., Lessons of the 2006 Israeli-Hezbollah War 57–59, 92, 95–98 (2007).

        [32].      As of July 2021, these events appear in a total of five articles in Westlaw’s Law Reviews and Periodicals database, and in those five, their mention is limited to a few lines at most and is ancillary to arguments unrelated to government obligations to protect soldiers. See Michael C.M. Louis, Dixie Mission II: The Legality of a Proposed U.S. Military Observer Group to Taiwan, 22 Asian-Pac. L. & Pol’y J. 75, 112 (2021) (using the crashes as examples of the customary international law principle that “any foreign vessel in distress has a right of entry to any port”); Tod Duncan, Air & Liquid Systems Corporation v. DeVries: Barely Afloat, 97 Denv. L. Rev. 621, 638 (2020) (noting a brief, in discussion of the doctrine of “special solicitude” afforded to sailors, that mentions the collisions as evidence for the assertion that “today’s maritime work is precarious”); Justin (Gus) Hurwitz, Designing a Pattern, Darkly, 22 N.C. J.L. & Tech. 57, 79 (2020) (using the McCain’s touch-screen failures as “example[s] of the complexity and stakes of design decisions”); Arctic L. & Pol’y Inst., Arctic Law & Policy Year in Review: 2017, 8 Wash. J. Env’t. L. & Pol’y 106, 220 (2018) (listing collisions in section on marine casualties and noting that they and other collisions “provide new insight into the risks posed by vessel traffic in the Arctic”); Erich D. Grome, Spectres of the Sea: The United States Navy’s Autonomous Ghost Fleet, Its Capabilities and Impacts, and the Legal Ethical Issues That Surround, 49 J. Mar. L. & Com. 31, 43–44 (2018) (mentioning the McCain and Fitzgerald collisions to support an argument in favor of a “ghost fleet” that could avoid dangers posed to ships in the South China Sea region).

* Professor of Law, University of California, Berkeley, School of Law. For helpful comments and conversations, I am grateful to Nels Bangerter, Lori Damrosch, Laurel Fletcher, Monica Hakimi, Julian Jonker, Eliav Lieblich, Christina Parajon Skinner, David Zaring, and participants in the Columbia Law School International Criminal Law Colloquium and the Wharton Legal Studies and Business Ethics Faculty Seminar. I thank the editors of the Southern California Law Review for their contributions. Toni Mendicino, Jennifer Chung, Anthony Ghaly, Dara Gray, Diana Lee, and Jenni Martines provided invaluable research assistance.

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Colorblind Constitutional Torts

Much of the recent conversation regarding law and police accountability has focused on eliminating or limiting qualified immunity as a defense for officers facing § 1983 lawsuits for using excessive force. Developed during Reconstruction as a way to protect formerly enslaved persons from new forms of racial terror, 42 U.S.C. § 1983 allows private individuals to bring suit against police officers when their use of force goes beyond what the Constitution permits. Qualified immunity provides a way for law enforcement to evade civil suits if officers can show that they did not infringe any constitutional right or they did not violate a clearly established law—concepts that are highly deferential to police. Implicit in the contemporary emphasis on reforming qualified immunity is the idea that but for this concept, § 1983 litigation could effectively fulfill its longstanding goal of holding police officers accountable through civil liability when they beat, maim, or kill without legal justification.

Qualified immunity certainly raises important issues, and reform in this area of law is needed. But deeper problems plague § 1983 claims. In this Article, we examine a key structural deficiency tied to legal doctrine that has largely escaped critique: how the Supreme Court’s 1989 decision in Graham v. Connor radically transformed § 1983 causes of action. Prior to the Graham decision, federal courts used diverse mechanisms, notably Fourteenth Amendment substantive due process, to determine “what counts” as an appropriate use of force. The Graham decision changed this area of law by holding that all claims of police excessive force must be judged against a Fourth Amendment reasonableness standard. This transformation has led to much discussion about what Graham means for understanding which police practices concerning the use of force are constitutionally permissible. However, there has been little conversation about what Graham has specifically meant for federal courts’ conception of civil enforcement mechanisms such as § 1983 that are designed to provide monetary relief when these constitutional rights are violated. 

In this Article, we engage in the first empirical assessment of Graham’s impact on federal courts’ understanding and application of this statute. We find that the Graham decision was not only constitutionally transformative in terms of how federal courts understand the legal standard for “what counts” as excessive force, but also correlates with changes in how federal courts think about the overall scope, purpose, and nature of § 1983. Our data analysis of two hundred federal court decisions shows that the Graham decision effectively divorced § 1983 from its anti-subordinative race conscious history and intent, recasting it in individualist terms. This has led to a regime of what we call colorblind constitutional torts in that the Graham decision doctrinally filtered § 1983 use of force claims down a structural path of minimal police accountability by diminishing the central roles of race and racism when federal courts review § 1983 cases. These findings and theoretical framing suggest that the contemporary emphasis on qualified immunity in police reform conversations misunderstand and significantly underestimate the doctrinal and structural depth of the police accountability problem. This Article provides a novel and useful explanation for how and why police use of force persists and offers a roadmap for change and greater police accountability.

Introduction

It is not uncommon for diabetics suffering from hypoglycemia (low blood sugar) to have their symptoms of disorientation and loss of consciousness misunderstood as being under the influence of drugs and alcohol, which can lead to mistreatment by the police.[1] This is what happened to Dethorne Graham one fall afternoon in 1984. Graham and his friend were pulled over by a police officer who thought Graham was “behaving suspiciously” when he quickly entered and exited a local convenience store in search of orange juice to offset his medical condition. The officer called for backup and, within a few short minutes, Graham was handcuffed face down on the sidewalk. When his friend tried to explain to the officers that Graham was a diabetic, one officer replied, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the [motherfucker] but drunk. Lock the [son of a bitch] up.”[2] Another neighborhood friend familiar with Graham’s condition saw the incident and brought orange juice to the scene. Graham begged Officer Matos, saying, “Please give me the orange juice.” She responded: “I’m not giving you shit.”[3] Graham was roughed up by the officers and thrown in the back of a squad car. Eventually, the officers drove him home, threw him on the ground in front of his house, and sped away.

During the altercation, Graham “sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder . . . [along with developing] a loud ringing in his right ear.”[4] Graham brought a federal civil rights suit under 42 U.S.C. § 1983 against the Charlotte, North Carolina, Police Department, alleging that the police violated constitutional rights granted to him under the Fourteenth Amendment. Before this case, plaintiffs sought remedies for excessive use of force by the police through different legal mechanisms, including substantive due process, equal protection, the Fourth Amendment, and even § 1983 as a stand-alone source for making claims.[5] While the district and circuit courts ruled in favor of the officers, the United States Supreme Court made a surprising decision. The Court held that all claims regarding the constitutionality of police use of force should be analyzed under the Fourth Amendment through a standard of “objective reasonableness.”[6] Graham v. Connor (“Graham”) marks an important, though often underappreciated, moment of doctrinal transformation. It synthesized previously divergent strands of use-of-force case law and established a new constitutional standard for all cases that involve claims of police using excessive force in the context of an arrest or investigatory stop.[7] Rather than framing police use of force as a matter concerning equal protection or substantive due process, the Graham decision effectively forced all conversations concerning excessive force to federal courts’ Fourth Amendment jurisprudence.

Over the past three decades, legal scholars and practitioners have debated the impact that Graham has had on limiting issues concerning the constitutionality of police use of force to a vague and nebulous standard of “objective reasonableness” in light of the broad deference that society and the courts give to law enforcement.[8] This deference and tendency to see almost all police actions as “reasonable” explains, at least in part, how even the most egregious police behavior often goes without penalty—a concern that is at the heart of the contemporary social movement against police violence. But, despite this almost exclusive preoccupation with what Graham has meant for constitutional law, there are other meaningful doctrinal concerns that deserve exploration. Put differently, what other aspects of use-of-force inquiries have been impacted by the shift in constitutional standards brought by Graham?

There are at least two main components to § 1983 litigation concerning police use of force: the enforcement action, which is a statutory mechanism, and the constitutional standard that is being enforced (Fourth Amendment reasonableness, per Graham). The existing scholarship only examines the influence of Graham in regard to how it changed federal courts’ understanding of the constitutional standard for “what counts” as excessive force. But what has Graham meant for how federal courts understand the scope, context, and meaning of civil rights—particularly statutory enforcement mechanisms such as § 1983?

In this Article, we engage in the first empirical assessment that examines Graham’s impact on how federal courts understand the nature and purpose of § 1983. This issue concerning Graham’s impact on § 1983 litigation beyond shaping the constitutional standard for excessive force is important for several reasons. The statute emerged during Reconstruction pursuant to Congress’s Fourteenth Amendment section 5 powers to provide civil remedies such as money damages to claimants when state officials violate constitutional rights while working in their official capacities.[9] Thus, understanding Graham’s impact should not be limited to discursive and doctrinal meditations on reasonableness, which is where the bulk of the discussion on this decision lies. It is also important to explore Graham’s impact on a civil rights statute designed to enforce constitutional rights in terms of how, if at all, the decision affected the way that federal courts read and interpret the history, meaning, and application of § 1983—legislation meant to give claims concerning police excessive force purpose and effect. Clearly, § 1983 as an enforcement mechanism has a close relationship with Fourth Amendment standards on reasonableness in the police use of force context. This Article is an attempt to go beyond existing scholarship on how the Graham decision reshaped the constitutional standard to also understand how it may have impacted the way that federal courts conceptualize the reach and intent of the civil statute meant to enforce these rights.

This research is critically important in light of contemporary social movements and proposed legal reforms responding to growing public awareness of police brutality in marginalized communities. Following the killing of George Floyd in Minneapolis and subsequent global protests against anti-Black violence, the conversation on how law can compel greater accountability with regards to police use of force has focused heavily on qualified immunity. Qualified immunity is a judicially created concept that emerged in the 1960s to allow government officials facing constitutional tort actions to avoid civil suits and the possibility of paying money damages when they can show that they did not violate any constitutional right or that the law they were accused of breaking was not clearly established. Qualified immunity morphed over subsequent decades to largely become a mechanism to shield police officers from enduring § 1983 lawsuits in virtually all but the most egregious instances of force.[10] Federal courts’ deferential posture towards police facing constitutional tort actions has turned qualified immunity into an exculpatory tool for law enforcement who use excessive force. As such, the post-Floyd emphasis on eliminating qualified immunity or restricting its use has become a popular public rallying point. For example, at the federal level, Representatives Justin Amash and Ayanna Pressley introduced the Ending Qualified Immunity Act in the House of Representatives in June 2020,[11] which was followed shortly by a similar bill in the Senate proposed by Senators Edward Markey, Elizabeth Warren, and Bernie Sanders.[12] Other efforts have been pursued to address the use of qualified immunity in state-level legislation. Since George Floyd’s murder in May 2020, “at least 25 states have taken up the issue and considered some form of qualified immunity reform, including Colorado, New Mexico, Connecticut and Massachusetts, which have passed legislation to end or restrict the defense.”[13] The idea behind these and other efforts at ending qualified immunity is that making police officers open to civil lawsuits for using excessive force will increase accountability and prevent officers from engaging in violence that violates constitutional rights.

Without question, qualified immunity presents unjust and unjustifiable barriers to holding police accountable. But there are deeper structural limitations placed on this type of litigation—namely, Graham’s reframing and reorientation of the entire constitutional tort endeavor. The impact of Graham deserves as much or even greater attention to the extent that the reframing of police use of force through Fourth Amendment logics has dislodged constitutional tort litigation from its foundational purpose: protecting the Black community from state violence. Yet, conversations regarding the Graham decision, its transformative impact on policing, and its role in undermining police accountability are largely absent from legal and public discussions regarding police reform. This Article uses empirical evidence to draw attention to this problem and argues for a different focus in efforts to reduce police violence.

To understand the structural limitations on police accountability beyond qualified immunity that were ushered in by the Graham decision, Part I of this Article begins with providing a brief history of § 1983 and explores the constitutional and statutory evolutions that constitute contemporary use-of-force jurisprudence. Part I also shows that legal scholars have mostly discussed the problem of police accountability for using excessive force in terms of qualified immunity. Part II examines the research literature on Graham and how existing scholarship is largely silent on how this doctrinal evolution came to limit constitutional tort actions. The impact of Graham has been discussed in legal scholarship with very little, if any, attention to what the decision to exclusively assess the constitutionality of police use of force through Fourth Amendment frameworks has meant for federal courts’ posture towards civil remedies offered by statute (§ 1983) and sought by plaintiffs. Part III describes our empirical study examining shifts in how federal courts decided § 1983 cases after Graham. We look at two periods: (a) from Monroe v. Pape in 1961 (which marks the beginning of the modern era of § 1983 litigation) through the Graham decision in 1989 and then (b) just after Graham from 1990 to 2016. Part IV discusses the results from our study. We find that there are important changes in how federal courts understand and approach § 1983 that correlate with the Graham decision. In particular, (1) references to § 1983’s descriptive titles—Ku Klux Klan Act, Enforcement Act, etc.—that reflect the racial history tied to this civil rights statute declined substantially after Graham; (2) consistent with Graham’s holding, judicial recognition of § 1983’s tight doctrinal relationship to the Fourteenth Amendment as a more race-conscious constitutional standard for excessive force claims largely ended, diminishing the potential of § 1983 civil remedies by linking them to Fourth Amendment standards of “reasonableness” that largely defer to the police; and (3) mentions of the race of plaintiffs and officers meaningfully decreased after the Graham decision. In Part V, we draw upon these empirical findings to develop a theory of colorblind constitutional torts that can at least partially explain these results as well as the persistence of police violence despite the availability of legal mechanisms designed to prevent and remedy such abuses. We then briefly conclude with a discussion of how these empirical findings and new theoretical framework can help federal courts reimagine constitutional torts in a manner that can produce greater police accountability.

The findings from our research show how the accountability problem regarding police use of force is not simply connected to individual “bad apples” in law enforcement shielded by misguided common law arguments about qualified immunity. More to the point, there are important doctrinal barriers that emerged after the Graham decision’s imposition of a Fourth Amendment framework that infused constitutional tort actions with colorblind sensibilities that undercut the entire historical project of § 1983. The empirical evidence, doctrinal reframing, and theoretical argument provided by this Article open up important new opportunities for change.

The data provided by this study raise important questions about Graham’s significance beyond matters concerning constitutional law. Graham has also had tremendous implications on how federal courts interpret and understand federal civil right statutes, particularly § 1983. By instilling a discourse of colorblindness into excessive-force litigation, Graham disrupts, if not completely undermines the connection between § 1983 and the distinct history of state-sponsored racial terror giving rise to it. By bringing colorblindness through the backdoor into judicial interpretations of this federal statutory remedy, Graham not only fundamentally contradicts the social, political, and historical forces that give meaning to § 1983, but it also frustrates § 1983’s ability to address contemporary abuses under the color of law, such as excessive force by law enforcement.

          [1].      The American Diabetes Association offers resources on how to engage with police officers. It notes that this is a particular concern for people with this medical condition, as “[l]aw enforcement officers [can fail] to identify hypoglycemia emergencies, mistaking them for intoxication or noncompliance. This can lead to the individual being seriously injured during the arrest, or even passing away because the need for medical care was not recognized in time.” Discrimination: Law Enforcement, Am. Diabetes Ass’n, https://www.diabetes.org/tools-support/know-your-rights/discrimination/rights-with-law-enforcement [https://perma.cc/RE3M-BXXR].

          [2].      Graham v. Connor, 490 U.S. 386, 389 (1989). The quoted language was originally censored by the Court in its opinion, but it appears uncensored here.

          [3].      Direct Examination of DeThorn Graham, Graham v. Connor, No. 87-6571 (W.D.N.C. Oct. 13, 1988).

          [4].      Graham, 490 U.S. at 390.

          [5].      See generally Osagie K. Obasogie & Zachary Newman, The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham v. Connor, 112 Nw. U. L. Rev. 1465 (2018) (finding empirical support for that federal courts largely did not use the Fourth Amendment as a constitutional standard in § 1983 excessive-force cases prior to Graham.).

          [6].      Graham, 490 U.S. at 388.

          [7].      Graham notes that this Fourth Amendment analysis applies when the police intentionally engage in an arrest, investigatory stop, or seizure of a citizen. Instances after Graham where the police cause physical harm without this intent (such as with innocent passersby) may still be analyzed through other constitutional mechanisms. See County of Sacramento v. Lewis, 523 U.S. 833, 854 (1997). This Article only discusses excessive force that occurs in the context of an arrest or investigatory stop.

          [8].      For a discussion of how deference to law enforcement shapes the federal courts’ understanding of the constitutional boundaries of excessive force, see Osagie K. Obasogie & Zachary Newman, The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of Excessive Force Become Constitutional Law, 104 Cornell L. Rev. 1281, 1322 (2019). For a broader assessment of the history of judicial deference to police, see Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2052 (2017).

          [9].      U.S. Const. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”). As background,

On April 20, 1871, the Forty-Second Congress enacted the third Civil Rights Act known as the Ku Klux Klan Act. The primary purpose of the Act was to enforce the provisions of the Fourteenth Amendment. Section 1 of the Act added civil remedies to the criminal sanctions contained in the Civil Rights Act of 1866 for the deprivation of rights by an officer “under color of law.” Thus, Section 1 of the Ku Klux Klan Act was the precursor of the present day 42 U.S.C. § 1983. . . . On June 22, 1874, the statute became § 1979 of Title 24 of the Revised Statutes of the United States, and upon adoption of the United States Code on June 30, 1926, the statute became § 43 of Title 8 of the United States Code. In 1952 the statute was transferred to § 1983 of Title 42 of the United States Code, where it remains today.

Richard H.W. Maloy, “Under Color of”—What Does It Mean?, 56 Mercer L. Rev. 565, 574 (2005) (citations omitted). Charles Abernathy notes that

we have long recognized that the resurrection of § 1983 converted the fourteenth amendment from a shield into a sword by providing a civil action for vindication of constitutional rights and, to the extent that damages have gradually become the authorized remedy for § 1983 violations, we have easily come to think of such actions as constitutional torts—civil damage remedies for violations of constitutionally defined rights.

Charles Abernathy, Section 1983 and Constitutional Torts, 77 Geo. L.J. 1441, 1441 (1989) (citations omitted).

        [10].      See generally Osagie K. Obasogie & Anna Zaret, Plainly Incompetent: How Qualified Immunity Became an Exculpatory Doctrine of Police Excessive Force, 170 U. Pa. L. Rev. 407 (2022).

        [11].      H.R. 7085, 116th Cong. (2020).

        [12].      S. 492, 117th Cong. (2021).

        [13].      Emma Tucker, States Tackling ‘Qualified Immunity’ for Police as Congress Squabbles over the Issue, CNN (Apr. 23, 2021), https://www.cnn.com/2021/04/23/politics/qualified-immunity-police-reform/index.html [https://perma.cc/G8HF-WD6H].

* Haas Distinguished Chair and Professor of Law, University of California, Berkeley School of Law (joint appointment with the Joint Medical Program and School of Public Health). B.A. Yale University; J.D. Columbia Law School; Ph.D. University of California, Berkeley. Many thanks to Richard Banks, Laura Gómez, Sonia Katyal, and Gerald López for reviewing early drafts. Comments from participants at the Stanford Law School Race and Law Workshop and UCLA Critical Race Theory Seminar and Workshop were extremely helpful. Sara Jaramillo provided excellent research assistance. 

†Senior Attorney, Legal Aid Association of California. B.A. University of California, Santa Cruz; J.D. University of California, Hastings College of the Law.

Who’s on the Hook for Digital Piracy? Analysis of Proposed Changes to the Digital Millennium Copyright Act and Secondary Copyright Infringement Claims

FBI Anti-Piracy Warning: The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.[1]

Chances are that many Americans have seen the warning above at some point in their lives, whether they saw the words stamped on the back of a music album sleeve or displayed on a screen before viewing a film.[2] Still, despite the threat of severe liability, chances are that many of these individuals will nevertheless engage in illegal pirating activity.[3]

Prior to the rise of the internet, individuals who made illegal copies of copyright-protected works like movies and music recordings were necessarily limited by the technology available to make such copies.[4] Magnetic audio and videotape cassettes allowed individuals to record songs played on the radio or movies and television shows to create “bootleg” versions by crude processes which, by nature, hindered one’s ability to reproduce multiple copies of similar quality to the original work.[5] However, as technology progressed, the opportunities to create illegal copies of copyrighted works, specifically within the newly emerging digital landscape, expanded with ease, and digital piracy grew more and more rampant.[6] The development of compact discs (“CDs”) and MP3 compression software provided easier avenues to create impermissible copies of digital media, and access to high-speed internet coupled with the rise of peer-to-peer sharing systems streamlined opportunities for fast and simple illegal downloading.[7] Today, in the current landscape of internet ubiquity, digital piracy has become an all but inevitable obstacle that every copyright owner, be it a large established entity such as a record label or a small independent content creator, has come to anticipate.[8]

The issue of digital piracy has not gone unaddressed by Congress, as evidenced by the promulgation of the Digital Millennium Copyright Act (“DMCA”) in 1998.[9] One goal of the DMCA was to address the growing rates of digital piracy in the 1990s by providing copyright owners additional causes of action against copyright infringers, particularly infringers that impermissibly circumvented technological tools used by rights-owners to protect their works.[10] However, the drafters of the DMCA were also careful to remain consistent with the main underpinnings of copyright law, which are to maintain a balance between protecting copyright owners’ works and facilitate the constitutional charge to “promote the Progress of Science and useful Arts.”[11] Within the context of the emerging digital age, Congress applied this balance by seeking to (1) instill confidence in rightsholders that copyright protections would remain effective in a digital landscape and (2) provide assurances to new, growing online service providers (“OSPs”) that their unprecedented business models would not be decimated by imputing liability to the providers for the infringing conduct of their users.[12] Thus, Title I of the DMCA laid out “anti-circumvention provisions” that prohibit circumvention of technological measures, such as password keys and encryption codes, used to protect copyrighted works.[13] Title II of the DMCA mitigated liability for internet service providers (“ISPs”)[14] by granting “safe harbor” protections to ISPs that comply with statutory requirements—these safe harbors largely aimed to incentivize ISPs to promptly respond to reports of infringing content.[15]

Since its enactment, the DMCA has received criticism that its measures are outdated and ill-equipped to address the ongoing digital piracy problems that continue today.[16] The internet is undoubtedly a different landscape from what it was at the time the DMCA was promulgated more than two decades ago.[17] With current considerations to amend the DMCA in light of the areas of growth that were unimagined at the time the DMCA was written,[18] coupled with recent litigation seeking to hold ISPs secondarily liable for infringing conduct of their subscribers,[19] the path to reducing digital piracy is still paved with uncertainty.

Following a discussion of ongoing proposed changes to the DMCA and developing litigation concerning the potential for vicarious liability claims against ISPs, this Note will ultimately argue that the current DMCA safe harbor provisions require updated eligibility requirements for ISPs, but the availability of vicarious liability claims against “mere conduit” ISPs overreaches the scope of protection afforded to copyright owners. Part I will provide a brief history of the DMCA, including a discussion of the safe harbor provisions and the requirements therein. Part II will incorporate current discussions regarding the need for DMCA reform, address the competing policies at play, and note potential areas of reform. Part III will discuss the origins of secondary copyright infringement liability caselaw, including recent cases that have considered extending vicarious liability claims to ISPs that act as “mere conduits” to provide internet to their users. Part IV will propose clarifications in the DMCA safe harbor protection most needed in the current digital landscape while arguing that ISPs must still be properly insulated from open floodgates of liability. This Note will conclude that the DMCA should be revised to alleviate rightsholders’ burden of monitoring incidents of copyright infringement, but the DMCA should still insulate “mere conduit” ISPs from vicarious liability claims.

          [1].      FBI Anti-Piracy Warning Seal, Fed. Bureau of Investigation, https://www.fbi.
gov/investigate/white-collar-crime/piracy-ip-theft/fbi-anti-piracy-warning-seal [https://perma.cc/6HEN-PT3G].

          [2].      See id. All U.S. copyright holders are authorized by 41 C.F.R. § 128-1.5009 to use the FBI’s Anti-Piracy Warning (“APW”) Seal, the purpose of which is to deter infringement of U.S. intellectual property laws by educating the public of these laws’ existence and notifying citizens of the FBI’s authority to enforce these laws. Id.

          [3].      Maria Petrescu, John T. Gironda & Pradeep K. Korgaonkar, Online Piracy in the Context of Routine Activities and Subjective Norms, 34 J. Mktg. Mgmt. 314, 324–25 (2018). Studies have shown that although some consumers may view digital piracy as an infringement of another’s intellectual property rights, this did not impact their moral perceptions of the act of infringement. Id. Digital piracy may be regarded as a “soft crime,” as one study noted that consumers who state they would not steal a CD from a store would still consider illegally downloading the contents of the CD online, due to a lowered risk of getting caught. Id. at 325.

          [4].      Thomas J. Holt & Steven Caldwell Brown, Contextualising Digital Privacy, in Digital Piracy: A Global, Multidisciplinary Account 3, 4 (Steven Caldwell Brown & Thomas J. Holt eds., 2018).

          [5].      See id.

          [6].      See id.

          [7].      See id.

          [8].      See id. The authors note that “it is thought that millions of people engage in digital piracy every day. The true scope of piracy is, however, difficult to document as clear statistics are difficult to obtain.” Id. at 5. One report by Music Watch estimated 57 million Americans pirated digital copies of music in 2016; another report by Nera estimated the revenue loss for the global movie industry to be between $40 billion and $97.1 billion per year. Damjan Jugović Spajić, Piracy Statistics for 2021, DataProt (March 19, 2021), https://dataprot.net/statistics/piracy-statistics/ [https://perma.cc/5CMV-BH8N%5D.

          [9].      Digital Millennium Copyright Act of 1998, 17 U.S.C. §§ 512, 1201–02.

        [10].      See Holt & Caldwell Brown, supra note 4, at 189; Cyberlaw: Intellectual Property in the Digital Millennium § 1.02, Lexis [hereinafter Cyberlaw § 1.02] (database updated Oct. 2020).

        [11].      U.S. Const. art. I, § 8, cl. 8.

        [12].      See Bill D. Herman, The Fight Over Digital Rights: The Politics of Copyright and Technology 45, 48–49 (2013).

        [13].      Cyberlaw § 1.02, supra note 10.

        [14].      For the purposes of this Note, the term “ISP” will refer to service providers that merely provide internet access to their subscribers (for example, Charter Spectrum, AT&T, and Frontier). The term “OSP” will refer to all other online service providers that provide services such as user material hosting or system caching (for example, YouTube, Facebook, and Google).

        [15].      Cyberlaw § 1.02, supra note 10.

        [16].      See U.S. Copyright Off., Section 512 of Title 17: A Report of the Register of Copyrights 27–28 (2020) [hereinafter Report of the Register of Copyrights], https://
http://www.copyright.gov/policy/section512/section-512-full-report.pdf [https://perma.cc/R8Z9-JQME].

        [17].      See id.

        [18].      See id. at 10.

        [19].      Compare UMG Recordings, Inc. v. Bright House Networks, LLC, No. 8:19-CV-710, 2020 U.S. Dist. LEXIS 122774, at *5 (M.D. Fla. July 8, 2020) (declining to hold defendant ISP vicariously liable for user infringement because ISPs do not receive a direct financial benefit from ongoing infringement), with Warner Recs. Inc. v. Charter Commc’ns, Inc., 454 F. Supp. 3d 1069, 1079 (D. Colo. Oct. 21, 2019) (holding that defendant ISP may be vicariously liable for infringement because the ISP plausibly receives a financial benefit from infringing users “motivated” to use the ISP’s service due to the ISP’s lax approach to curbing infringement).

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The Agency Problem in SPACs: A Legal Analysis of SPAC IPO Investor Protections

The events that occurred in 2020 drastically altered the world’s financial markets,[1] contributing to an increase in Initial Public Offerings (“IPOs”) of Special Purpose Acquisition Companies (“SPACs”).[2] In particular, 2020 was a year marked by numerous records within the SPAC market, including the highest number of SPAC IPOs (248), the highest amount of proceeds raised in SPAC IPOs ($83.3 billion), the highest average SPAC IPO size ($336.2 million),[3] and the largest SPAC IPO ever ($4 billion).[4] SPAC IPO activity continued at a record pace during the first quarter of 2021, as $111.9 billion was raised through 317 SPAC IPOs, which surpassed the annual records set in 2020 in a single quarter.[5] SPAC proponents argued that SPACs provided disruptive private companies with a viable route to access capital via the public markets.[6] Furthermore, and central to this Note, SPACs caught the attention of potential investors,[7] potential SPAC sponsors,[8] and the Securities and Exchange Commission (“SEC”).[9] SPACs have become subject to an increasing amount of regulatory scrutiny and litigation risk.[10] After two years of record-breaking activity in the SPAC market, the future of the SPAC’s role in the capital markets is clouded with uncertainty.[11]

A SPAC is a publicly-held shell company created to merge with a private company and bring the private company public.[12] A shell company is a development stage company that has no physical assets (other than cash and cash equivalents) and either has no business plan or its business plan is to merge or acquire another company or entity.[13] The “merger” between the shell company and private company is commonly known as a “de-SPAC transaction,”[14] and this Note uses the terms interchangeably. First, the SPAC sponsor (“sponsor”),[15] the financiers and managers running the SPAC deal, raise a war chest of capital with the intention of pursuing a de-SPAC transaction in a process similar to the typical IPO process.[16] The sponsor has a set time limit, typically two years (the “outside date”), to find a target company, negotiate a merger or purchase agreement, and take the company public through the de-SPAC transaction or the SPAC liquidates and returns its IPO proceeds to its investors.[17] During this process, the investment proceeds raised in connection with the IPO are held in a trust account.[18] Once the target company is identified, the de-SPAC transaction is subject to shareholder approval.[19] Even if the transaction is approved, SPAC IPO investors are able to opt out of the transaction by redeeming their shares at the time of the merger, receiving a pro rata share of the trust account (plus interest).[20] At the time of the SPAC IPO, potential SPAC IPO investors do not know which company the sponsor plans to merge the SPAC with, only finding out when the potential target company is proposed to them.[21] In light of the speculative nature of investments in SPAC IPOs emerges a nuanced question of whether or not potential SPAC IPO investors are provided with sufficient disclosure at the time of the SPAC IPO.[22] Secondly, SPAC commentators have argued that the SPAC’s compensation structure can incentivize sponsors to pursue a “losing” de-SPAC transaction at the expense of some investors.[23] This Note addresses these two key concerns potential SPAC IPO investors are faced with.

The first concern that potential SPAC investors are faced with is whether they are provided with sufficient disclosure at the time of the SPAC IPO and until the target company is announced. The primary purpose of federal securities law is to ensure that investors are provided with enough information to sufficiently evaluate the merits of investment opportunities themselves.[24] If the sponsor does not provide sufficient disclosure at the time of the SPAC IPO, potential SPAC IPO investors will be forced to make a misinformed decision about whether to invest in the SPAC.[25] This Note concludes that the current regulations and applicable exchange rules demand sufficient disclosure at the time of the SPAC IPO and before the de-SPAC transaction is announced. Going forward, the SEC should ensure that investors are provided with adequate disclosure when the target company is proposed and at the time of the de-SPAC transaction.

The second concern for potential SPAC IPO investors, and the focus of this Note, is whether the regulations governing SPACs and SPAC terms provide adequate protection against the partial misalignment of incentives between the sponsor and SPAC IPO investors that stem from the SPAC’s compensation structure.[26] The sponsor is either compensated with a twenty percent stake in the target company post-merger if the sponsor completes a de-SPAC transaction or is left uncompensated if the sponsor fails to complete a deal before the outside date.[27] SPAC IPO investors want the sponsor to complete a de-SPAC transaction that will increase the value of their shares post-merger.[28] The sponsor largely shares the same goal. A successful transaction is more profitable for the sponsor and can lead to future fundraising opportunities.[29] However, if the outside date is approaching and the sponsor has yet to complete a merger, the sponsor can be incentivized to complete a de-SPAC transaction that may be value-destroying to SPAC IPO investors,[30] creating an agency problem.[31] Sponsor compensation is not substantially tied to SPAC IPO investor compensation.[32] While the sponsor would prefer a merger in which the SPAC shareholders do well, as the outside date approaches, the sponsor will favor a merger that is bad for shareholders rather than no merger at all.[33] SPAC incentives could be better aligned if the SPAC’s compensation structure closely tied sponsor compensation to SPAC IPO investor compensation.

This Note concludes that while redemption rights largely protect SPAC IPO investors against the partial misalignment of incentives created by the SPAC’s compensation structure,[34] SPAC warrants can incentivize some SPAC IPO investors to exercise their redemption rights in self-serving ways at odds with the SPAC’s ultimate goal of completing a successful de-SPAC transaction.[35] A warrant is a contract to purchase additional shares of common stock at a later time for a pre-determined price.[36] The warrants incentivize investors to invest in the SPAC IPO by providing additional compensation to investors if the target company performs well post-merger.[37] However, the warrants do not encourage SPAC IPO investors to hold onto their shares after the IPO.[38] Rather, the warrants can incentive SPAC IPO investors to redeem their shares even if they believe the target company will be successful post-merger. By redeeming their shares, these investors guarantee that they receive their initial investment back (plus interest), while retaining the potential upside the warrants provide.[39] By acting on these incentives, redeeming SPAC IPO investors harm non-redeeming SPAC IPO investors and pose a threat to the SPAC’s long-term viability as an investment vehicle. The inefficiencies prevalent in SPACs today could be mitigated if there were an incentive for SPAC IPO investors to not redeem their shares outside the protective purpose that redemption rights serve.

This Note utilizes a case study of Pershing Square Tontine Holdings, Ltd. (“Pershing Square Tontine”), the largest SPAC IPO to date,[40] to analyze its claims. In March 2021, Pershing Square Tontine had just issued its SPAC IPO, and the SPAC was being praised by commentators for its “shareholder-friendly terms” and “strong alignment” of incentives.[41] Pershing Square Tontine made a bold attempt to align sponsor and SPAC IPO investor incentives with its compensation structure and warrant structure, which significantly departed from common SPAC terms at the time.[42] Pershing Square Tontine’s shares performed exceptionally well in the months following its SPAC IPO,[43] indicating that the market valued its innovative structure.[44] Unfortunately, Pershing Square Tontine proposed an excessively complex transaction that abandoned any resemblance to a typical de-SPAC transaction to acquire a ten percent stake in Universal Music Group (“UMG”).[45] Shortly after, Pershing Square Tontine issued a letter to its shareholders canceling the transaction, noting issues raised by the SEC and investors.[46] After the failed transaction, Pershing Square Tontine faced multiple challenges that will only be touched upon briefly in this Note.[47] In July 2022, after failing to complete a merger before its outside date, Pershing Square Tontine announced that it would liquidate and return all of its capital to its investors.[48] Pershing Square Tontine will be viewed as a failure. Nonetheless, commentators still view Pershing Square Tontine’s original terms as some of the most investor-friendly SPAC terms ever introduced,[49] noting that the sponsor’s “determination to innovate and reform SPACs” was “admirable.”[50] The entire SPAC market was left to wonder what would have happened had Pershing Square Tontine succeeded in completing a de-SPAC transaction.[51]

Since January 2021, the overall sentiment of the SPAC market has steadily declined due to SPAC’s “lackluster aftermarket performance,”[52] SPAC litigation threats, and increasing regulatory scrutiny within the SPAC market.[53] While we will likely never see the SPAC deal volume of 2020 to 2021 again, the flexibility of the SPAC’s structure may enable future SPACs to “carve out specific niches” within the capital markets.[54] But doing so would require addressing the inefficiencies that were prevalent in the SPACs of 2020–2021. An analysis of Pershing Square Tontine’s original terms provides a starting point for this discussion. Future SPACs should consider replicating some of Pershing Square Tontine’s original terms to mitigate the agency problem common in SPACs.

On March 30, 2022, the SEC proposed a sweeping new set of highly criticized rules regarding SPAC IPOs and de-SPAC transactions.[55] SEC Commissioner, Hester Peirce, opposed the proposed rules, stating in a hearing that they “seem designed to stop SPACs in their tracks.”[56] The proposed rules will likely face extensive comments and the final rules will “attract close scrutiny and potential legal challenges.”[57] Given that the scope and effect of the regulation is yet to be determined, this Note narrows its analysis to the SPACs and applicable regulation of 2020–2021 before the SEC proposed new rules. The focus on the SPAC market of 2020–2021 sheds light on an unprecedented time within the capital markets. The analysis that follows will be relevant regardless of how SPAC regulation evolves and its corresponding effects within the SPAC market. If the regulation is reasonable, the proposals set forth in this Note will serve as recommendations for future SPAC sponsors to adopt, as originally intended. Similarly, if certain proposed rules are adopted, commentators argue that there will be unintended consequences that will magnify the current SPAC criticisms addressed in this Note.[58] Alternatively, in a world in which excessive regulation kills the SPAC market, these proposals will serve as an alternative solution to addressing SPAC criticisms.

Part I sets out the offsetting costs and benefits faced by SPAC IPO investors and sponsors that form the core of the SPAC’s agency problem. Part II describes the typical SPAC transaction in detail, elaborating on the mechanisms that drive this partial misalignment of incentives. Part III compares a SPAC IPO to a traditional IPO, analyzes the advantages and recent popularity SPACs have had within the capital markets, and describes the incentives that underlie the SPAC IPO process. Part IV explores the fraudulent history of shell company offerings, providing a rationale for investors and regulators to be wary of SPACs. Part IV then depicts how Rule 419 and other securities laws and regulations helped mitigate concerns posed by shell company offerings, ultimately leading to the creation of the SPAC.[59] While regulation was necessary for shell company offerings, SPACs provide many of their protections through contractual obligations, thus the looming threat of excessive regulation will likely lead to the demise of this valuable alternative to a traditional IPO. Part V describes the SPAC boom (or bubble) of 2020 to 2021 and the original terms of Pershing Square Tontine. Part VI addresses the first concern posed to SPAC IPO investors, utilizing Pershing Square Tontine’s SEC filings to argue that there is sufficient disclosure at the time of the SPAC IPO. Part VII observes how SPAC sponsor compensation has resulted in a partial misalignment of incentives in the SPAC form and the effect that investor voting rights and redemption rights have had on balancing these incentives. In light of these findings, this Note proposes modifications to common SPAC terms. Future SPACs should consider adopting some of the novel terms Pershing Square Tontine introduced in an attempt to better align sponsor and SPAC IPO investor interests.

          [1].      See infra notes 158–59 and accompanying text.

          [2].      See infra notes 160, 168–72 and accompanying text.

          [3].      SPAC Statistics, SPACInsider, http://spacinsider.com/stats [http://perma.cc/M8X7-AQZW].

          [4].      Christopher Anthony & Steven J. Slutzky, Bill Ackman and Pershing Square Launch
Largest SPAC To Date: A Harbinger of Things to Come?, Debevoise & Plimpton (July
24, 2020), http://www.debevoise.com/insights/publications/2020/07/bill-ackman-and-pershing-square-launch-largest [http://perma.cc/D8QJ-E5K4].

          [5].      PitchBook, Uncertainty Clouds Future for SPACs: SPAC Market Update Q3 2021, at 2 (2021) [hereinafter Uncertainty Clouds Future for SPACs].

          [6].      E.g., Steven Davidoff Solomon, In Defense of SPACs, N.Y. Times: Deal Book (June 12, 2021), http://www.nytimes.com/2021/06/12/business/dealbook/SPACs-defense.html [http://perma.cc/
KS79-8E7P].

          [7].      Alexander Osipovich & Dave Michaels, Investors Flock to SPACs, Where Risks Lurk and Track Records Are Poor, Wall St. J. (Nov. 13, 2020), http://www.wsj.com/articles/investors-flock-to-spacs-where-risks-lurk-and-track-records-are-poor-11605263402 [http://perma.cc/UGP2-2ECD].

          [8].      Seasoned investment professionals, industry executives, and celebrities are sponsoring SPACs. Brian DeChesare, The Great SPAC Scam: Why SPACs Are a Great Deal for Celebrity Sponsors, But Not Companies or Normal Investors, Mergers & Inquistions, http://www.mergersandinquisitions.com/
great-spac-scam [http://perma.cc/6PAP-Q59T] (noting that “Shaquille O’Neal, Gary Cohn, Bill Ackman, [and] Paul Ryan” all have sponsored SPACs).

          [9].      In September 2020, given the frenzy SPACs were causing in the capital markets, SEC Chairman Jay Clayton stated that the SEC would be taking a closer look at SPAC disclosures. Dave Michaels & Alexander Osipovich, Blank-Check Firms Offering IPO Alternative Are Under Regulatory Scrutiny, Wall St. J. (Sept. 24, 2020), http://www.wsj.com/articles/blank-check-firms-offering-ipo-alternative-are-under-regulatory-scrutiny-11600979237 [http://perma.cc/8XUE-KXTD].

        [10].      See infra notes 359–61, 432, 479 and accompanying text.

        [11].      Uncertainty Clouds Future for SPACs, supra note 5, at 6; The Daily Upside, Things Have Gone from Bad to Worse for SPACs to Round Out the Year, Motley Fool (Dec. 12, 2022, 7:00 PM), http://www.fool.com/investing/2021/12/12/things-have-gone-from-bad-to-worse-for-spacs-to-ro [http://perma.cc/3AK2-MPT4].

        [12].      Michael Klausner, Michael Ohlrogge & Emily Ruan, A Sober Look at SPACs, 39 Yale J. on Regul. 228, 235 (2022); Ramey Layne, Brenda Lenahan & Sarah Morgan, Update on Special Purpose Acquisition Companies, Harv. L. Sch. F. on Corp. Governance (Aug. 17, 2020), http://corpgov.
law.harvard.edu/2020/08/17/update-on-special-purpose-acquisition-companies [http://perma.cc/KTM9-Q3NX].

        [13].      Ramey Layne & Brenda Lenahan, Special Purpose Acquisition Companies: An Introduction, Harv. L. Sch. F. on Corp. Governance (July 6, 2018), http://corpgov.law.harvard.edu/2018/07/06/
special-purpose-acquisition-companies-an-introduction [http://perma.cc/Q8KQ-TN8Q].

        [14].      Layne et al., supra note 12. While the “A” in “SPAC” stands for acquisition, a SPAC typically merges with the target in a process similar to a reverse merger. Klausner et al., supra note 12, at 240.

        [15].      This Note considers the term “sponsor” to apply broadly. While technically, a sponsor is usually a person or an entity, see infra note 91, this Note considers “sponsor” to apply to all affiliates of that person or entity involved in the transaction, such as the investment team. This approach follows other financial literature. E.g., Milan Lakicevic & Milos Vulanovic, A Story on SPACs, 39 Managerial Fin. 384, 389 (2013).

        [16].      Layne & Lenahan, supra note 13.

        [17].      Id.

        [18].      See infra notes 106–08 and accompanying text.

        [19].      Lakicevic & Vulanovic, supra note 15, at 8–9.

        [20].      Id. at 20 (“SPAC common shareholders can redeem their shares at pro rata value . . . .”).

        [21].      Michelle Earley & Rob Evans, Special Purpose Acquisition Companies, LexisNexis
(database updated Oct. 25, 2021).

        [22].      See Russell Invs., Watching the Equity SPAC-Tacle, Seeking Alpha (Sept. 24, 2020, 8:59 PM), http://seekingalpha.com/article/4376232-watching-equity-spac-tacle [http://perma.cc/4RWD-6JLD] (“[A]re SPACs a good investment? Maybe.”).

        [23].      Klausner et al., supra note 12, at 296; James Talevich, Investors Must Understand SPACs’ Time Constraints, Wall St. J. (Jan. 19, 2021, 3:26 PM), https://www.wsj.com/articles/investors-must-understand-spacs-time-constraints-11611087968 [http://perma.cc/55AU-XCE7].

        [24].      Thomas Lee Hazen, The Law of Securities Regulation 126 (7th ed. 2016) (“[T]he primary purpose of 1933 Act registration statements is to provide full and adequate information regarding the distribution of securities . . . .”).

        [25].      See infra Section IV.A; see infra note 313 and accompanying text.

        [26].      See infra Part I.

        [27].      Andrew R. Brownstein, Andrew J. Nussbaum & Igor Kirman, The Resurgence of SPACs: Observations and Considerations, Harv. L. Sch. F. on Corp. Governance (Aug. 22, 2020), http://
corpgov.law.harvard.edu/2020/08/22/the-resurgence-of-spacs-observations-and-considerations [http://
perma.cc/F3SW-HXRV].

        [28].      Lakicevic & Vulanovic, supra note 15, at 22; see infra text accompanying note 96.

        [29].      See infra notes 379–81 and accompanying text.

        [30].      Press Release, William A. Ackman, Pershing Square Tontine Holdings, Ltd. Releases Letter to Shareholders (Aug. 19, 2021), https://pstontine.com/wp-content/uploads/2021/08/8.19.2021-Press-Release-PSTH-Letter-to-Shareholders.pdf [https://perma.cc/3TVM-2XSM] (“In a de-SPAC merger transaction, time pressure on the sponsor is the enemy of a good deal for shareholders.”).

        [31].      See infra notes 76–79 and accompanying text.

        [32].      See infra notes 74, 383–84 and accompanying text.

        [33].      Klausner et al., supra note 12, at 247; Layne & Lenahan, supra note 13.

        [34].      See infra Sections VII.C.1, VII.D.

        [35].      See infra Sections VII.C.2–3, VII.D.

        [36].      SPAC Warrants: 5 Tips to Avoid Missed Opportunities, FINRA (Aug. 30, 2021), http://www.finra.org/investors/insights/spac-warrants-5-tips [http://perma.cc/AR9N-GXY7]; Chizoba Morah, How Do Stock Warrants Differ from Stock Options?, Investopedia (May 3, 2021), http://
http://www.investopedia.com/ask/answers/08/stock-option-warrant.asp [http://perma.cc/KSM3-LUB9].

        [37].      Special Purpose Acquisition Company (SPAC), supra note 102 (“The purpose of the warrant is to provide investors with additional compensation for investing in the SPAC.”).

        [38].      Klausner et al., supra note 12, at 246, 248–49.

        [39].      SPAC Warrants: 5 Tips to Avoid Missed Opportunities, supra note 36.

        [40].      Nicholas Jasinski, Bill Ackman’s Pershing Square Files for Largest-Ever SPAC IPO, Barron’s (June 22, 2020, 4:30 PM), http://www.barrons.com/articles/bill-ackmans-pershing-square-files-for-largest-ever-spac-ipo-51592857837 [http://perma.cc/WT73-5DUX].

        [41].      Michael W. Byrne, Pershing Square’s Supersized SPAC Looks Well-Positioned to Deliver a Splash Acquisition, Seeking Alpha (Aug. 10, 2020, 3:50 PM), http://seekingalpha.com/article/4367199-pershing-squares-supersized-spac-looks-well-positioned-to-deliver-splash-acquisition [http://perma.cc/
ZJ8A-WK3N].

        [42].      See infra Sections V.B.3, VII.E.

        [43].      Pershing Square Tontine Holdings, Ltd. (PSTH): Historical Data, Yahoo! Fin., http://finance.yahoo.com/quote/PSTH/history?p=PSTH [http://perma.cc/YC3K-Z36M].

        [44].      Will Ashworth, Play Bill Ackman’s SPAC Without the Inherent Frothiness, InvestorPlace (Jan. 22, 2021, 12:37 PM), http://investorplace.com/2021/01/psth-stock-play-bill-ackmans-spac-without-frothiness [http://perma.cc/ZEQ5-CBU9]; Byrne, supra note 41.

        [45].      Stephen Wilmot, Ackman’s SPAC Deal to End All SPACs, Wall St. J. (June 4, 2021, 11:04 AM), https://www.wsj.com/articles/ackmans-spac-deal-to-end-all-spacs-11622818252?reflink=desktop
webshare_permalink [http://perma.cc/Z88G-QZJY].

        [46].      Press Release, William A. Ackman, Pershing Square Tontine Holdings, Ltd. Releases Letter to Shareholders (July 19, 2021), https://pstontine.com/wp-content/uploads/2021/07/Letter-to-Share
holders-from-PSTH-CEO-Bill-Ackman.pdf [https://perma.cc/42MM-3PZW].

        [47].      Will Ashworth, 4 Better Buys than Bill Ackman’s Failed Pershing Square SPAC, Nasdaq (Nov. 11, 2021, 6:00 AM), http://www.nasdaq.com/articles/4-better-buys-than-bill-ackmans-failed-pershing-square-spac-2021-11-11 [https://perma.cc/A6LG-KWNS] (“It now looks as though Ackman will wind up PSTH, [and] return the funds to investors . . . .”); Ian Bezek, It’s the Final Chapter for Pershing Square Tontine, InvestorPlace (Sept. 10, 2021, 6:00 AM), http://investorplace.com
/2021/09/psth-stock-its-the-final-chapter-for-pershing-square-tontine [http://perma.cc/Q38U-FQWW] (“PSTH stock represents little more than a low-interest bond at this point”).

        [48].      Julie Steinberg, Ackman to Close $4 Billion SPAC, Wall St. J. (July 12, 2022), https://www.wsj.com/articles/bill-ackman-to-close-4-billion-spac-11657629142?page=1 [https://perma.
cc/PG6U-DN55]; Marlena Haddad, Pershing Square Tontine Holdings (PSTH) to Liquidate Trust, SPACInsider (July 11, 2022), https://spacinsider.com/2022/07/11/pershing-square-tontine-holdings-to-liquidate-trust [https://perma.cc/2KWT-HKNX].

        [49].      E.g., Kristi Marvin, Pershing Square Tontine Faces Suit on Abandoned UMG Deal, SPACInsider (Aug. 19, 2021), http://spacinsider.com/2021/08/19/pershing-square-tontine-faces-suit-on-abandoned-meal [http://perma.cc/W6R7-APZB].

        [50].      Chris Bryant, Bill Ackman Was Too Clever for His Own Good, Bloomberg (July 19, 2021, 3:09 AM), http://www.bloomberg.com/opinion/articles/2021-07-19/-psth-pulls-universal-music-deal-bill-ackman-was-too-clever-for-his-own-good [http://perma.cc/3FZ9-KLMR].

        [51].      Matthew Frankel, Should Investors Stick with Pershing Square Tontine Holdings?, Motley Fool (Aug. 4, 2021, 6:22 AM), http://www.fool.com/investing/2021/08/04/should-investors-stick-with-pershing-square-tontin [http://perma.cc/YGK4-L33A] (“I’m disappointed . . . . The whole point of a SPAC is to acquire a full business. To have a business combination.”); Michelle Celarier, Bill Ackman’s Pershing Square Just Had a $1.6 Billion Payday, Institutional Inv. (Sept. 21, 2021), http://www.institutionalinvestor.com/article/b1tpd3k78fxvrb/Bill-Ackman-s-Pershing-Square-Just-Had-a-1-6-Billion-Payday [http://perma.cc/HA5C-954P] (noting the success of the sponsor’s hedge fund that completed the UMG deal).

        [52].      Uncertainty Clouds Future for SPACs, supra note 5, at 1.

        [53].      Matthew Solum & Gianni Mascioli, Legal Scrutiny for SPACs on the Rise, Kirkland & Ellis (Apr. 29, 2021), http://www.kirkland.com/publications/article/2021/04/legal-scrutiny-for-spacs [http://
perma.cc/JH6V-DYCE].

        [54].      Uncertainty Clouds Future for SPACs, supra note 5, at 2.

        [55].      Norm Champ, Sophia Hudson, Christian O. Nagler, Stefan Atkinson, Tamar Donikyan, Joshua N. Korff & Peter Seligson, The SEC Proposes New Rules Regarding SPACs, Kirkland & Ellis (Apr. 6, 2022), https://www.kirkland.com/publications/kirkland-alert/2022/03/sec-proposes-new-rules-regard
ing-spacs [https://perma.cc/2BVH-XQ6B].

        [56].      Michelle Celarier, SEC Deals a Big Blow to SPACs, Institutional Inv. (Mar. 30,
2022) (quoting SEC Commissioner Hester Peirce), https://www.institutionalinvestor.com/article/
b1xdf3qfv7sckm/SEC-Deals-a-Big-Blow-to-SPACs [https://perma.cc/8UPT-VZFJ].

        [57].      Margeaux Bergman, Katie Butler, Alain Dermarkar, Adam Hakki, Harald Halbhuber, Daniel Lewis, Jonathan Lewis, Ilya Mamin, John Menke, Ilir Mujalovic, Lona Nallengara, Bill Nelson, Sara Raisner & Pawel Szaja, SEC Proposes New SPAC Rules, JD Supra (Apr. 12, 2022), https://
http://www.jdsupra.com/legalnews/sec-proposes-new-spac-rules-6508226 [https://perma.cc/S39Y-DR2M].

        [58].      Celarier, supra note 56.

        [59].      The SPAC was created immediately after these regulations came into effect as an investment vehicle that is exempt from Rule 419 but contractually complies with many of Rule 419’s restrictions, providing investors with adequate protection while preserving an alternative route for private companies to go public. See infra Section IV.B.1.

* Senior Editor, Southern California Law Review, Volume 95; J.D. Candidate 2023, University of Southern California Gould School of Law; M.B.A. Candidate 2023, University of Southern California Marshall School of Business; B.A. Economics 2017, University of California, Santa Barbara. I would like to thank Professor Jonathan Barnett for his guidance throughout the note-writing process and Professor Michael Chasalow for his invaluable insights on the substance of my Note. In addition, thank you to the Southern California Law Review editors for their excellent work. Most importantly, thank you to my family, Arianne, and Charles for their support throughout my time in law school.

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Divided Agencies

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically selected political principals or as bold “resisters” countering those principals’ ultra vires proposals, accounts of civil servant opposition are legion. Move beyond headlines, however, and little is known about the impact of political divisions within agencies on their workaday functioning.

This Article presents the first comprehensive, empirical examination of the effects of intra-agency political dynamics on policymaking. Leveraging data on political preferences based on campaign donations, we identify “ideological scores” for both appointees and civil servants in dozens of agencies over thirty-four years—the first measure of the political gap between these two groups across agencies and time. We use these scores to examine how ideological divergence between appointees and civil servants affects regulatory activity.

We find that agencies with greater distance between these two groups—which we term “divided agencies”—may adopt a more cautious posture. They tend to extend the rulemaking process and allow consideration of late-filed comments. These features provide appointees with extra time to gather and digest comments from politically aligned outside experts. Divided agencies’ caution may extend to the completion of final rules, which—in some but not all models—tend to be less numerous. Remarkably, we find no evidence that divided agencies are any less successful in shepherding proposed rules to final status. That finding casts doubt on the claim that the longer rulemaking timeframes in these agencies are attributable to civil servants’ attempts to derail oppositional appointees’ initiatives. Instead, one possible interpretation is that divided agencies’ caution pays off.

These findings imply that, with agency heads oscillating between left and right based on the party in power, the generally more moderate civil service can serve as a ballast. Specifically, faced with appointees that may be responsive only to a bare electoral majority, the presence of oppositional civil servants may encourage regulatory caution and push decision-making away from the extremes—thus, paradoxically, moving policy toward the median voter.

Our findings also spotlight the critical role that the notice-and-comment process—which is often maligned as pretextual—can play in divided agencies. Generalist appointees face a principal-agent problem when crafting rules: their key source of necessary in-house expertise, civil servants, may be misaligned. In this circumstance, comments from outside allies can provide a check on civil servants’ work. That civil servants can play a promajoritarian, moderating role in divided agencies highlights the importance of preserving civil service protections—especially in today’s polarized political climate.

Introduction

Secretary of the Interior Ryan Zinke, who served during the Trump Administration, and John Morton, who helmed Immigration and Customs Enforcement (“ICE”) under President Obama, may not have much in common politically, but they do share one experience: they managed agencies in which approximately one-third of their workforce was estranged. A proponent of increasing industry access to public lands, Secretary Zinke believed he had “thirty [percent] of the crew that’s not loyal to the flag” concerning that goal.[1] He compared his situation to capturing “a prized ship at sea and only the captain”—that would be Secretary Zinke, incidentally, a former Navy SEAL—“and the first mate row over” to manage the captured crew.[2] In response, some Interior Department civil servants styled themselves “the disloyals,” printing T-shirts with that epithet.[3]

Director Morton faced a similar mutiny. After issuing a directive prioritizing deportations of people convicted of crimes and urging prosecutorial discretion in other cases,[4] the union representing nearly thirty-nine percent of ICE employees passed a no-confidence vote against Morton’s leadership.[5] That move was unprecedented.[6]

That other apostates can be found across the executive branch is unsurprising;[7] the conditions are ripe for such conflicts. Civil servants often hold differing views from appointees.[8] With only four thousand appointees atop a federal workforce of over two million[9]—many of whom hold job protections—the former group’s ability to supervise the latter will, by practical necessity, be incomplete. As political polarization grows and hardball tactics typically associated with electoral politics enter administrative agencies,[10] we expect that conflicts between appointees and civil servants will only increase.

In recent years, legal scholars have turned their attention to examining these inner workings of administrative agencies. For instance, some scholars posit that competing centers of power within agencies—civil servants and appointees, along with public participants—serve a checking function on each other’s power and thus mimic the more familiar constitutional separation of powers.[11] Others theorize about the policies produced by agencies that contain competing powers, some of which pull in majoritarian and others in countermajoritarian directions.[12]

Yet while the legislative consequences of political divisions among the branches of government are well studied,[13] relatively little empirical work analyzes the impact on policy of political divisions within agencies.[14] Empirically, political dynamics inside administrative agencies remain terra incognita in some important respects. How do agencies in which key subgroups are at loggerheads differ from agencies that are more politically cohesive? Do deeply divided agencies take longer to regulate, perhaps because of distrust or civil servant foot-dragging? Is White House review more exacting for these agencies, on the theory that White House officials are less likely to trust proposed rules emanating from ideologically divided entities? And do these agencies ultimately produce fewer rules?

This Article seeks answers to these questions. It examines how ideological differences between political appointees and civil servants affect the rulemaking process. These two groups share power within agencies, with generalist appointees relying on expert civil servants to implement the former group’s preferred policies. That division gives rise to a well-studied principal-agent problem: appointees must rely on civil servants who may have very different policy preferences and over whom appointees have limited ability to monitor or control.[15]

Faced with agents they may distrust, appointees may seek out and spend more time considering informed “second opinions” from other sources. These alternative sources of information include comments received during the notice-and-comment process, informal feedback from allies in Congress, and recommendations from advisory committees of outside experts occupying a privileged position within agencies. Indeed, public choice theorists posit that administrative structures and processes can serve just this purpose.[16]

We put this theory to the test, examining how appointees respond when their agents in the civil service hold differing views. To do so, we first develop a measure of ideological distance over time and within agencies so that we can identify divided agencies.

Existing measures are inadequate for that purpose,[17] so we create our own. We leverage a dataset on ideological preferences based on campaign donations to do so. We use these data to generate dynamic “ideal point” estimates for agency heads and civil servants in forty-seven agencies over thirty-four years—and thus, a new measure of the ideological gap between these two groups across agencies and time.[18] We then connect this measure to data concerning the rulemaking process.

Our results show that divided agencies—that is, those with ideologically opposed agency heads and civil servants—adopt a slower rulemaking posture than agencies that are more unified. Several of our findings suggest that greater caution may be at play. Once civil servants generate a proposed rule, appointees take their time. While we cannot rule out all alternative explanations, we observe that one feature of the delay is consideration of late-filed comments. Considering late-filed comments allows appointees to hear from a greater number of ideologically aligned outside groups as a check on civil servants’ work. Delay may also result from appointees spending additional time assessing those comments. In either case, slower rulemaking at divided agencies suggests that appointees may be utilizing rulemaking procedures to blunt civil servants’ informational advantages. Additionally, divided agencies may tend to issue fewer rules. That their rules are no less likely to become final, however, is perhaps evidence that their caution pays off.

This claimed cautious approach means that, whatever policy changes one desires in a first-best world, the reality of policymaking in divided agencies likely will leave one disappointed. Indeed, divided agencies are likely status quo-preserving. Whether this feature is normatively desirable turns, in part, on one’s risk aversion and the extent to which one values policy certainty.

Given that partisan polarization—and thus divided agencies—likely will persist into the foreseeable future, our findings provide a set of best practices for agencies to function as well as possible under these conditions. The policy implication that most closely follows from our findings is that officials must preserve the independence of the civil service. At a time when that independence is challenged, our findings about rulemaking suggest that civil servants comprise a moderating counterweight against more ideologically extreme appointees; thus, they serve as a bulwark against wild changes in regulatory policy. With agency leadership swinging between liberal and conservative poles, as we find, civil servants—who tend to be more moderate, albeit left of center—can pull agency policies toward the median voter. This moderation serves to improve democratic representation in agency policymaking: appointees are aligned with the Presidents who appoint them, and Presidents tend to be more ideologically extreme than the median voter. Allowing policy to swing all the way to their appointees’ preferences would therefore not reflect the public’s preferences. In contrast to common laments of employment-protected civil servants serving as a countermajoritarian force in policymaking, we show that they can serve a democratizing function in divided agencies.[19]

Further, to prevent divided agencies from descending into the gridlock and paralysis that plague other polarized institutions, appointees must have access to high-quality information from ideological allies, which we infer from divided agencies’ greater willingness to consider late-filed comments. We argue that the notice-and-comment process is well suited to transferring high-quality information to distrustful appointees. Notice-and-comment also may discourage civil servants, aware that their work will be “checked” by outsiders, from straying too far from their principals’ goals. Additional measures to inject diverse outside sources of information into agency decision-making could further enhance agencies’ ability to function, even in a challenging partisan climate within their walls—though they would increase resource costs associated with rulemaking.

This Article proceeds in four parts. Part I situates our study in twin literatures: empirical scholarship examining extra-agency influences on regulatory dynamics and descriptive and positive work concerning intra-agency dynamics. Part II presents our theory and expectations concerning the effects of appointee-civil servant preference divergence on regulatory processes and outputs. In Part III, we describe our research design, including our creation of an original dataset identifying appointees’ and civil servants’ political ideologies across agencies and time, and we present our analysis. Part IV discusses normative implications and offers policy prescriptions.

          [1].      Evan Osnos, Trump vs. the “Deep State,” New Yorker (May 14, 2018), https://
http://www.newyorker.com/magazine/2018/05/21/trump-vs-the-deep-state [https://perma.cc/9862-ZBGM].

          [2].      Matthew Daly, Interior Chief’s Loyalty Comments Draw Widespread Criticism, Associated Press (Sept. 26, 2017), https://apnews.com/article/8c3ae77664f44159823903b3add31e65 [https://
perma.cc/AN4H-W8N6].

          [3].      Osnos, supra note 1.

          [4].      Memorandum from John Morton, Dir., U.S. Immigr. & Customs Enf’t, to All Field Off. Dirs., All Special Agents in Charge, & All Chief Couns., U.S. Immigr. & Customs Enf’t (June 17, 2011), https://
http://www.ice.gov/doclib/foia/prosecutorial-discretion/certain-victims-witnesses-plaintiffs.pdf [https://perma.
cc/JM2G-ZSVX].

          [5].      Ted Hesson, 7 Numbers that Tell the Story of an Immigration Boss’s Tenure, ABC News (June 17, 2013, 12:34 PM), https://abcnews.go.com/ABC_Univision/Politics/ice-director-john-mortons-
tenure-numbers/story?id=19422159 [https://perma.cc/W37D-R4QM]; see also Julia Preston, Single-Minded Mission to Block an Immigration Bill, N.Y. Times (June 1, 2013), https://www.nytimes
.com/2013/06/02/us/for-chris-crane-a-quest-to-block-an-immigration-bill.html [https://perma.cc/2ZLK-
TXUC] (providing figures used to calculate the union’s share of ICE’s workforce).

          [6].      Preston, supra note 5.

          [7].      See Osnos, supra note 1 (providing other examples).

          [8].      See infra Part III.

          [9].      Fiona Hill, Public Service and the Federal Government, Brookings (May 27, 2020), https://
http://www.brookings.edu/policy2020/votervital/public-service-and-the-federal-government [https://perma.cc/
JRK2-QYRM] (reporting the size of the federal nonmilitary, nonpostal workforce and the approximate number of political appointees).

        [10].      See Brian D. Feinstein & M. Todd Henderson, Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions, 38 Yale J. on Regul. 175, 223, 226 (2021) (documenting these developments).

        [11].      See Jon D. Michaels, Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers, 91 N.Y.U. L. Rev. 227, 238–39 (2016); Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 Emory L.J. 423, 425 (2009); Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2346 (2006).

        [12].      See Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53, 72 (2008).

        [13].      See generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006); Gary W. Cox & Mathew D. McCubbins, Setting the Agenda: Responsible Party Government in the U.S. House of Representatives (2005); John J. Coleman, Unified Government, Divided Government, and Party Responsiveness, 93 Am. Pol. Sci. Rev. 821 (1999); David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–2002 (2d ed. 2005).

        [14].      But see generally Rachel Augustine Potter, Bending the Rules: Procedural Politicking in the Bureaucracy (2019); Rachel Augustine Potter, Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking, 79 J. Pol. 841 (2017) [hereinafter Potter, Slow-Rolling, Fast-Tracking]; Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889 (2008); George A. Krause, A Two-Way Street: The Institutional Dynamics of the Modern Administrative State (1999).

        [15].      See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 243–44 (1987) (outlining this principal-agent problem).

        [16].      See, e.g., id. at 255 (“[P]olitical principals in both branches of government suffer an informational disadvantage with respect to the bureaucracy. . . . [M]any of the provisions of the Administrative Procedures [sic] Act solve this asymmetric information problem.”).

        [17].      For instance, measures based solely on the ideology of the appointing President fail to capture ideological differences in consecutive agency heads appointed by the same President. In other words, they do not capture enough variation over time. Other measures only occur sporadically in time.

        [18].      The included executive agencies are the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs (operating as the Veterans Administration until 1989); Environmental Protection Agency; and Small Business Administration. The included independent agencies are the Agency for International Development, Civil Aeronautics Board (until its dissolution in 1985), Commodity Futures Trading Commission, Equal Employment Opportunity Commission, Farm Credit Administration, Federal Communications Commission, Federal Deposit Insurance Corporation, Federal Emergency Management Agency (until its subordination to the Department of Homeland Security in 2003), Federal Energy Regulatory Commission, Federal Housing Finance Agency, Federal Housing Finance Board (until its dissolution in 2009), Federal Labor Relations Authority, Federal Maritime Commission, Federal Reserve Board, Federal Trade Commission, General Services Administration, Interstate Commerce Commission (until its dissolution in 1996), National Aeronautics and Space Administration, National Archives and Records Administration, National Credit Union Administration, National Transportation Safety Board, Nuclear Regulatory Commission, Office of Federal Housing Enterprise Oversight (until its dissolution in 2009), Office of Personnel Management, Pension Benefit Guaranty Corporation, Securities and Exchange Commission, Social Security Administration, Surface Transportation Board, and U.S. Postal Service. Also, the Internal Revenue Service, although part of the Treasury Department, is included as a separate agency.

        [19].      See Stephenson, supra note 12, at 72 (presenting a positive theory of this dynamic).

           *      Assistant Professor of Legal Studies and Business Ethics, the Wharton School of the University of Pennsylvania.

           †      Professor of Law, Political Science and Public Policy, University of Southern California Gould School of Law. We thank Adam Bonica, Devin Judge-Lord, and Rachel Potter for data, and Ming Hsu Chen, John Harrison, Erin Hartman, Kathryn Kovacs, Jeff Lubbers, Neysun Mahboubi, Jennifer Mascott, John McGinnis, Jon Michaels, David Noll, Anne Joseph O’Connell, Richard Pierce, Zach Price, Michael Rappaport, Noah Rosenblum, Amy Semet, Bijal Shah, Kevin Stack, Matthew Stephenson, Chris Walker, Dan Walters, Adam White, and participants at the Presidential Administration in a Polarized Era conference at the C. Boyden Gray Center for the Study of the Administrative State for helpful comments. The authors also gratefully acknowledge the Gray Center’s financial support of this research. 

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The Social Context of the Law: A Critical Analysis of Reliance Interests in the Department of Homeland Security v. Regents of the University of California

In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case. The case concerned the rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy, an issue that sparked the interest of a wide range of amicus curiae, including those in support of the policy. Using Critical Race Theory (“CRT”) and UndocuCrit Theory in an integrated framework, this Article interrogates the social context amici presented in their amicus briefs to see what we could learn about DACA from the perspective of amici. This Article demonstrates that amici highlighted the importance and impact of the policy to all sectors of society, but, in doing so, largely emphasized the substantial gains and potential losses to the country and U.S. citizens, de-centering DACA recipients. The social context did not fully humanize recipients before the Court. Building upon this analysis, this Article discusses the implications for legal frameworks with social context, institutional/disciplinary norms, and comprehensive immigration reform.

INTRODUCTION

Law is intricately connected to society, shaping social institutions and people’s daily lives.[1] Interrogating the relationship between law and society allows us to be critical of the law and to identify its limitations and wide ranging social implications.[2] Legal frameworks with social context—frameworks that embed and require consideration of social or public policy concerns within their analytic frameworks—allow us to interrogate this relationship.[3] They provide an opportunity for courts and advocates to engage with the real life implications of a given case.[4] Presumably, the consideration of a more holistic depiction of the interests at stake can humanize the parties before the court and, thereby, lead to more just outcomes.[5]

Humanizing the parties before the court is particularly instrumental in the context of civil rights, such as immigration, where the outcomes of a case may lead to life altering consequences, such as removal from the United States.[6] One such framework that centralizes the human impact in the immigration field is the framework of arbitrary and capricious agency action.[7] Governed by the Administrative Procedures Act (“APA”), federal agencies making policy changes must engage in “reasoned
[decision-making],” accounting for the reliance interests that policies engender.[8] Agencies that fail to engage in reasoned decision-making act in an arbitrary and capricious manner.[9]

In June 2020, the U.S. Supreme Court ruled on whether the U.S. Department of Homeland Security’s (“DHS”) rescission of DACA was arbitrary and capricious.[10] The case (or the “DACA case”) drew national attention and attracted amici across the country who weighed in on whether DHS failed to consider the reliance interests at stake.[11] The case before the Court drew an array of diverse amici, providing an opportunity to examine, through from a critical perspective, the application of a legal framework with social context.[12] Using Derrick Bell’s concept of interest convergence[13] and Carlos Aguilar’s concept of liminality,[14] this study is guided by one question: As an application of the arbitrary and capricious framework from the APA, what can we learn about DACA’s significance, impact, and the interests at stake through amici’s representation of reliance interests in Department of Homeland Security v. Regents of the University of California?[15]

Through our analysis, we found that though the application of the arbitrary and capricious framework—a legal framework with social context—brought to the fore DACA’s significance, importance, impact, and the interests at stake, amici focused on how the interests converged with the interests of the white majority.[16] Without DACA, recipients would live in further social marginalization without legal protection from deportation and the ability to integrate into society.[17] DACA marginally improved recipients’ liminal legal status.[18] But, more frequently, amici extensively detailed the gains to the country, which were substantial and reverberated across all sectors.[19] As reflected in a rich legacy of critical scholarship, in instances when the interests of marginalized communities converge with the interests of white people, the interests and gains are provisional and will be sacrificed or abrogated when such remedies threaten the interests of the white majority.[20]

DACA creates a provisional remedy and benefit to undocumented immigrants. On the one hand, they have an opportunity to work and partially integrate into society, while providing substantial gains to the United States.[21] On the other hand, they live in a perpetual state of liminality, in
two-year increments, at the political whims of the federal executive branch, and without legal permanency.[22] The legal framework in the DACA case did not fully humanize the immigrant community;[23] according to amici, undocumented immigrants were deserving of protection because the interests at stake largely benefit the United States and the country would suffer detrimental effects if recipients lost their status.[24]

We begin our discussion with Part I, in which we detail the creation and rescission of DACA and track the ongoing litigation.[25] In Part II, we discuss the concept of reliance interests, a legal concept that is crucial to the arbitrary and capricious framework.[26] Then, we turn to a review of the extant legal and social science research regarding DACA and its impact in Part III.[27] Next, we turn to the details of this study. We present the lens and design of this study in Part IV[28] and present our findings in Part V.[29] We conclude with a discussion of the implications of this study in Part VI.[30] By analyzing the arbitrary and capricious framework through a critical lens, we aim to unpack how this framework furthers notions of justice for DACA recipients and to identify areas in the framework that fall short of this goal.[31]

          [1].      See Susan S. Silbey, A Sociological Interpretation of the Relationship Between Law and Society, in Law and the Ordering of Our Life Together 1, 5 (Richard John Neuhaus ed., 1989) (“[T]hrough a dialectical process, humans produce a social world which they then experience as something other than human. Consequently, the institutional world thus produced ‘requires legitimation, that is, ways by which it can be “explained” and justified’ to each new generation that encounters it as made rather than in the making. From this point of view, the law is a fundamental social institution, providing legitimations for the social order or stories that explain our lives to ourselves.” (footnotes omitted)).

          [2].      See infra Section IV.A.1.

          [3].      For example, contract common law has long developed consideration of reliance interests. See L. L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages, 46 Yale L.J. 52 passim (1936); see also Reliance Damages, Legal Info. Inst., https://www.law.cornell.edu/wex/reliance_dama
ges [https://perma.cc/7SEA-H7UJ].

          [4].      See, e.g., Maria M. Lewis & Suzanne E. Eckes, Storytelling, Leadership, and the Law: Using Amicus Briefs to Understand the Impact of School District Policies and Practices Related to Transgender Student Inclusion, 56 Educ. Admin. Q. 46, 46 (2020) (reviewing amicus briefs “to better understand the human impact of policies and practices related to transgender student inclusion”).

          [5].      See, e.g., Brown v. Board of Educ., 347 U.S. 483, 494 n.11 (1954) (considering the psychological, social, and emotional impact of racial segregation on Black children that informed the U.S. Supreme Court’s ruling, which found racial segregation in schools to be unconstitutional).

          [6].      See, e.g., Lewis & Eckes, supra note 4; Donald Kerwin, Daniela Alulema & Mike Nicholson, Communities in Crisis: Interior Removals and Their Human Consequences, 6 J. on Migration & Hum. Sec. 226, 227 (2018).

          [7].      5 U.S.C. § 706(2)(A).

          [8].      Michigan v. EPA, 576 U.S. 743, 750 (2015) (internal quotation marks omitted) (citing Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)); see also infra Part II.

          [9].      § 706(2)(A); see, e.g., Summers v. Touchpoint Health Plan, Inc., 749 N.W.2d 182, 188 (Wis. 2008).

        [10].      Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1915–16 (2020).

        [11].      Stakeholders submitted a total of forty-six briefs after the U.S. Supreme Court granted certiorari in the case. Amici represented a wide array of sectors and professions, including government officials, colleges and universities, research organizations, and business groups. Appendix A includes a list of all categories, demonstrating the wide interest the case generated. 

        [12].      See infra Part IV.

        [13].      Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518 passim (1980).

        [14].      Carlos Aguilar, Undocumented Critical Theory, 19 Cultural Stud. ↔ Critical Methodologies 152 passim (2019).

        [15].      This study is part of a larger research project in which we applied Critical Race Theory and UndocuCrit to analyze amicus briefs before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020).

        [16].      See Bell, supra note 13.

        [17].      E.g., Brief of Amici Curiae the National Association of Home Builders et al. in Support of Respondents, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nat’l Ass’n of Home Builders et al.]; Brief of United We Dream et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for United We Dream et al.]; Brief of American Council on Education et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Am. Council on Educ. et al.]; Brief of Amici Curiae Service Employees International Union et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Serv. Emp. Int’l Union et al.]; Brief of the United States Conference of Catholic Bishops et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for U.S. Catholic Bishops et al.]; Brief of Amici Curiae 109 Cities et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for 109 Cities et al.]; Brief of National School Boards Ass’n et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nat’l Sch. Bds. Ass’n et al.]; Brief of 143 U.S. Business Ass’ns & Cos. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for 143 Business Ass’ns & Cos.]; Brief  for Amici Curiae Ass’n of American Medical Colleges, et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Ass’n Am. Med. Colls. et al.]; Brief for Amici Curiae Nineteen Colleges & Universities in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nineteen Colls. & Universities]; Brief of Nonprofit Legal Services Organizations as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nonprofit Legal Servs. Orgs.]; Brief of Alianza Americas et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Alianza Ams. et al.]; Brief for Amici Curiae Institutions of Higher Education in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Inst. of Higher Educ.]; Brief for the State of Nevada et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for State of Nev. et al.]; Brief of Teach for America, Inc. as Amicus Curiae in Support of Respondents & Affirmance, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Teach for Am.]; Brief of Tim Cook et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Tim Cook et al.]; Brief for Lawyers’ Committee for Civil Rights Under Law et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Laws.’ Comm. for C.R. Under L. et al.]; Amici Curiae Brief of Empirical Scholars in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Empirical Scholars]; Brief of Amicus Curiae Government of the United Mexican States in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Gov’t of Mexican States]; Brief for the American Professional Society on the Abuse of Children et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Am. Prof’l Soc’y on Abuse of Children et al.]; Brief for Former Service Secretaries, Modern Military Association of America et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Former Serv. Sec’ys et al.] (describing the economic marginalization recipients would experience without protection); Brief Amici Curiae of the National Education Ass’n and National PTA in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nat’l Educ. Ass’n & Nat’l PTA]; Brief of the National Queer Asian Pacific Islander Alliance et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for NQAPIA et al.]; Brief of Amici Curiae Current & Former Prosecutors & Law Enforcement Leaders in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Current & Former Prosecutors & L. Enf’t]; Brief of Amici Curiae 127 Religious Organizations in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for 127 Religious Orgs.].

        [18].      See Benjamin J. Roth, The Double Bind of DACA: Exploring the Legal Violence of Liminal Status for Undocumented Youth, 42 Ethnic & Racial Stud. 2548 passim (2019); Edelina M. Burciaga & Aaron Malone, Intensified Liminal Legality: The Impact of the DACA Rescission for Undocumented Young Adults in Colorado, 46 Law & Soc. Inquiry 1092 passim (2021); Erin R. Hamilton, Caitlin Patler & Robin Savinar, Transition into Liminal Legality: DACA’s Mixed Impacts on Education and Employment Among Young Adult Immigrants in California, 68 Soc. Probs. 675 passim (2020).

        [19].      E.g., Brief for Serv. Emp. Int’l Union et al., supra note 17, at 17–18 (detailing the positive economic effects of DACA); Brief for 109 Cities et al., supra note 17, at 6–16, 22 (detailing the positive impact of DACA on state governments).

        [20].      Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense, 49 Ariz. L. Rev. 911, 924 (2007); see also Bell, supra note 13; Taharee Apirom Jackson, Which Interests Are Served by the Principle of Interest Convergence? Whiteness, Collective Trauma, and the Case for Anti‐Racism, 14 Race Ethnicity & Educ. 435 passim (2011).

        [21].      Roberto G. Gonzales, Lives in Limbo: Undocumented and Coming of Age in America 8-10 (2016); Roberto G. Gonzales, Veronica Terriquez & Stephen P. Ruszczyk, Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals (DACA), 58 Am. Behav. Scientist 1852, 1853 (2014); Roth, supra note 18, at 2549-50; see also infra Part V.

        [22].      Gonzales, supra note 21, at 8–10; see also infra Section IV.A.3; infra Part V.

        [23].      See infra Part V.

        [24].      See infra Part V.

        [25].      See infra Part I.

        [26].      See infra Part II.

        [27].      See infra Part III.

        [28].      See infra Part IV.

        [29].      See infra Part V.

        [30].      See infra Part VI.

        [31].      See infra Parts V, VI.

           *      Assistant Professor of Educational Leadership and Higher Education and Human Development; Assistant Professor (by courtesy), College of Law, Boston University; Ph.D. 2018, Penn State University; J.D. 2018, Penn State Law; B.A. 2013, mathematics, summa cum laude, Texas A&M International University.

                   The authors would like to thank the Boston College Center for Human Rights and International Justice for supporting the research fellows and team members Grace Cavanaugh, Emma Kane, and Tugce Tumer. We also extend our gratitude to Rebecca Mattson, law librarian at Penn State Law, and Luke Nelson and Michael Dressler, Jr., Penn State Law students, for their invaluable research assistance in finalizing this manuscript.             

           †.      Associate Professor of Education Policy Studies and an affiliate faculty member with Penn State Law; Ph.D. 2014, University of Wisconsin, Madison; J.D. 2012, University of Wisconsin Law School; B.A. 2006, law, letters, and society, University of Chicago.

           ‡.      Fulbright Scholar, Spain, 2021; B.A. 2021, international relations, magna cum laude, Boston College.

           ††.    Ph.D., higher education, Boston College; M.A. 2016, higher education, Boston College; B.A. 2013, psychology, magna cum laude, Adrian College.

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Dimensional Disparate Treatment

The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the many disparate-treatment issues for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come.

What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions, but that transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account best captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of Title VII—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.

Introduction

Bostock v. Clayton County delivered a landmark victory to advocates of social equality and workplace fairness.[1] Discrimination against gay and transgender employees, the Supreme Court pronounced, violates the Civil Rights Act of 1964.[2] Two years later, however, even many who celebrated Bostock’s upshot have confessed doubts about the Court’s asserted justification for bringing it about: the now-famous claim that firing someone because they are gay or transgender logically entails firing them “because of their sex” as well.[3] The first wave of objections to that analysis came from avowed conservatives who, perhaps predictably, condemned it as an abuse of their favored textualist methodology.[4] But more striking is the second and more recent wave of criticism, in which some of the most thoughtful progressive scholars have now denounced that same analysis as either fallacious or, what is not much better, a façade for value-laden choices that the majority obscured from view.[5]

Although these criticisms are ultimately misplaced (or so I will argue), they underscore the need for something that the Court has indeed failed to provide: a coherent, general account of what it means for an action to be taken “because of” an attribute in the sense relevant to claims of disparate treatment. To be sure, Bostock purported to answer just that question by appealing to the familiar idea of “but-for” causation.[6] And in so doing, it arguably built on other recent decisions construing anti-discrimination requirements in similar terms.[7] But the critics are right to say that this “simple test”[8] is not nearly as simple as advertised. As the Bostock dissenters were quick to point out, if Gerald Bostock had been a woman rather than a man—but had still been attracted to people of the same sex—he (now she) would still have been fired.[9] “But for” Bostock’s sex, then, his fate might have been just the same: everything depends on which other traits one chooses to hold constant in the counterfactual comparison. Without principled criteria for making such judgments, Bostock’s test is not simple so much as it is vacuous.

But the problem is not just that one Supreme Court opinion—even a salient and consequential one—may be analytically unsatisfying. The more fundamental problem is that Bostock at once enshrined a formalistic approach to disparate-treatment law and set up anyone who seeks to implement that approach in a coherent way for failure.[10] Courts and scholars are already seeking to “reorient[]” this area of law around the “but-for principle” trumpeted in Bostock.[11] But if that account of “because of” is garbled—or, at the very least, seriously incomplete—it will only sow more confusion and suspicion as it is extended to the host of other issues for which Bostock now provides the leading precedent. If the ascendant, textualist vision of disparate-treatment law is instead to guide courts to principled results (and if Bostock’s own results are to be satisfactorily defended as such), that vision needs to include more than a pat equation of “because of” with but-for causation. It needs to incorporate a careful and convincing account of the formal relations on which a formalistic doctrine inevitably relies.

This Article undertakes to supply that missing analysis. It develops the account of “because of” that the Court’s approach to disparate-treatment law requires, but that the Court has failed to clearly articulate. And, importantly, it does so within the textualist parameters embraced by a majority of the sitting Justices (and by all of the Bostock opinions).[12] The most immediate payoff is to vindicate Bostock’s result—and what I will contend is its implicit logic—against the critics who claim that the ruling cannot be defended on its own textualist terms.[13] If I am right, conscientious textualists ought to accept Bostock as rightly decided, and everyone who feels trapped between nagging doubts about the majority’s textual argument and anxiety about the consequences of rejecting it can breathe a sigh of relief.[14] At the same time, the account that I develop here clarifies a wide variety of current controversies about the boundaries of anti-discrimination protections and puts a common frame on these diverse disputes, thereby outlining “the contours of a post-Bostock Title VII.”[15]

Consider a sampling of the questions that are newly arising, or will now be recast, in Bostock’s wake. If discrimination against gays and lesbians inherently involves sex discrimination under the “but-for” theory, does discrimination based on pregnancy as well?[16] What about discrimination against people who are bisexual or pansexual (and whose aggregate set of sexual attractions or practices would thus offend an employer irrespective of the employee’s own sex)?[17] Does Bostock’s protection for transgender individuals—whom the Court understood to be “persons with one sex identified at birth and another today”[18]—extend to nonbinary people, who identify neither as men nor as women today?[19] What does Bostock’s “but-for” analysis mean for the “sex stereotyping” theory articulated in Price Waterhouse v. Hopkins,[20] which was emphasized by advocates and lower courts but nearly ignored in the Court’s opinion?[21] And what does Bostock’s analysis mean for protected characteristics unrelated to sex, gender, and sexuality? For example, does discrimination based on cultural practices that have a racial valence constitute discrimination “because of [an] individual’s race”?[22] Does discrimination based on a person’s status within the Indian caste system constitute “national origin” discrimination?[23] And how should a Bostock-style textualist evaluate the panoply of discrimination claims based on intersectional identities or the conjunction of a protected trait with an unprotected one (as in so-called “sex-plus” cases)?[24]

The beginning of wisdom on all of these issues, I will suggest, is conceptual clarification. As is characteristic of anti-discrimination laws, Title VII prohibits certain actions with a certain connection to certain properties of a person; in particular, it prohibits certain adverse employment actions to be taken “because of [an] individual’s race, color, religion, sex, or national origin.”[25] Both the Court and commentators have generally read that phrase as if each property were merely a shorthand for its range of “standard” values—so that “because of such individual’s race,” for example, means “because of such individual’s being white, being Black, being Asian,” and so forth. On reflection, however, that is not the only or even the most natural interpretation of these words. Drawing on a rich but untapped body of philosophical work that examines “determinable” properties and their corresponding “determinates,” I will argue that the statute is better read to prohibit making decisions based on any facts about what a person is like in the named dimensions. I term this the “dimensional account” of disparate treatment.

On this understanding, the fact of a person’s being Black is a prohibited ground of decision-making, but so, too, is the fact of their being of a different race than their spouse, or the fact of their being of the same race as most existing employees. A decision made on any of these grounds is made on account of the person’s race in the requisite sense: it is made based on a fact about what they are like “race-wise,” or in respect of race. And that, in essence, is why Bostock was rightly decided: not because Gerald Bostock would have been treated better if his sex had been female, as the Court insisted, but because he would have been treated better if his sex had been different than the sex of his desired romantic partners—full stop. In short, disparate-treatment prohibitions make it unlawful to disfavor people because of properties—including relational properties—that they possess partly in virtue of how they stand in the dimensions enumerated in the statute. This account makes sense not only of Bostock, but also of the various other controversies noted above. And it puts causal counterfactuals in their place: an evocative tool for describing the role of a given attribute in a decision, but not the fundamental determinant of whether the attribute played a role or did not.

Of course, it is one thing to articulate a theory and another to ground it in positive law. I close that gap in two ways—one less ambitious, and one more so. First, I will contend that the account developed here captures what Bostock itself must be taken to have held in order for its own reasoning to make sense. In fact, despite repeatedly touting its “simple test,” the Court retreated at key moments to the intuitions that the dimensional account grounds, formalizes, and develops. So long as Bostock is good law, then, that account should be taken as a sympathetic reconstruction of the existing law as well. Second, I will contend that the dimensional account also captures the “ordinary meaning” of Title VII in the legally relevant sense—notwithstanding the oddity of describing anti-gay practices as “sex discrimination” in everyday speech—and thus that the account would deserve textualists’ allegiance even if it could claim no authority in Bostock (and, equivalently, that Bostock itself was rightly decided insofar as it should be read to incorporate this account).

With this last argument, I intervene not only in the debate over disparate-treatment law but in the cross-cutting debate over textualism as well. Bostock has quickly become ground zero for analysis of the textualist approach to statutory interpretation; it has spawned theoretical defenses, critiques, and even a literature that aims to ascertain the relevant facts about “ordinary meaning” by empirical means.[26] And it has already become a principal lens through which students encounter questions of interpretive method.[27] I will use the dimensional account to highlight a critical aspect of the methodological debate that, with due respect, all sides have given short shrift. As I will explain, the theoretical premises of modern textualism commit textualists to seeking not the meaning of a free-floating phrase, but rather the meaning of a legislative utterance containing that phrase. That difference matters because the hypothetical “ordinary reader” who undertook the latter inquiry would necessarily account for the characteristic modularity and generality of legislative communication. With respect to Title VII, that means they would seek a general analysis of “because of such individual’s X,” rather than consulting their own linguistic intuitions about one or another particular case considered in isolation. The dimensional account supplies just such a general analysis; few of Bostock’s textualist critics even try to do so. The dimensional account thus not only has a strong claim to be accepted on textualist grounds, but also exemplifies how reading a statute like a law may prove essential to faithfully implementing textualists’ methodological commitments.

Although my argument proceeds under textualist premises, I do not mean to imply either that I favor textualism as an original matter or that my analysis should be of interest only to those who do. The question of “[w]hether our system is textualist, intentionalist, purposivist, or something else” is distinct from the question of what it would be best for it to be.[28] And within our extant legal system, what a statute means in a textualist’s sense is undoubtedly at least one of the important determinants of its legal effect (whether that represents a salutary feature of our system or not).[29] Moreover, several of the current Justices purport to give this particular consideration special priority.[30] So there are powerful reasons for concerning oneself with how a textualist ought to resolve important questions, and even for taking the fruits of that inquiry to bear on the legal soundness of different possible answers, regardless of one’s own affinity for textualism and its purported justifications.

The Article unfolds over four parts. In Part I, I briefly explain why analyzing disparate treatment solely in terms of but-for causation, as Bostock purported to do, is untenable. In Parts II and III, I develop the interpretation of “because of such individual’s X” introduced above and unspool its implications for a range of familiar and novel issues in disparate-treatment law. Finally, in Part IV, I return to Bostock and sexual-orientation discrimination in particular in order to develop and rebut the concern that the dimensional account fails to accord with the “ordinary meaning” of the statutory text with respect to that specific form of discrimination.

          [1].      Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).

          [2].      Id. at 1754.

          [3].      Id. at 1735, 1737, 1754; see 42 U.S.C. § 2000e-2(a)(1). For reasons of clarity and accuracy, I use the singular “they” in this Article. Cf. Bryan A. Garner, Garner’s Modern English Usage 196 (2016) (noting that “resistance to the singular they is fast receding” and that it is “the most convenient solution” to a difficult problem).

          [4].      For criticisms in that vein, see, for example, Josh Blackman & Randy Barnett, Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases, Nat’l Rev. (June 26, 2020, 6:30 AM), https://www.nationalreview.com/2020/06/justice-gorsuch-title-vii-cases-half-way-
textualism-surprises-disappoints [https://web.archive.org/web/20220412183111/https://www.national
review.com/2020/06/justice-gorsuch-title-vii-cases-half-way-textualism-surprises-disappoints]; Nelson Lund, Unleashed and Unbound: Living Textualism in Bostock v. Clayton County, 21 Federalist Soc’y Rev. 158, 160–62 (2020); and Ed Whelan, A ‘Pirate Ship’ Sailing Under a ‘Textualist Flag,’ Nat’l Rev. (June 15, 2020, 1:01 PM), https://www.nationalreview.com/bench-memos/a-pirate-ship-sailing-under-a-
textualist-flag [https://web.archive.org/web/20220318235256/https://www.nationalreview.com/bench-
memos/a-pirate-ship-sailing-under-a-textualist-flag].

          [5].      See, e.g., Mitchell N. Berman & Guha Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism, and Title VII, 97 Notre Dame L. Rev. 67, 79–120 (2021); Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 129–70; David A. Strauss, Sexual Orientation and the Dynamics of Discrimination, 2020 Sup. Ct. Rev. 203, 203–11; Cass R. Sunstein, Textualism and the Duck-Rabbit Illusion, 11 Calif. L. Rev. Online 463, 474–75 (2020).

          [6].      See Bostock, 140 S. Ct. at 1739.

          [7].      See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013); see also Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1623–25, 1641–44 (2021) (arguing that these cases, together with Bostock, stand for a “but-for principle” that is now central to anti-discrimination law). Although Bostock certainly pointed to Gross and Nassar as authority for its “but-for” test, see Bostock, 140 S. Ct. at 1739, their common holding—that, in a mixed-motive case, the statutorily prohibited reason must be decisive—does not actually say much of anything about Bostock, where the question was whether a particular reason is prohibited at all. See infra note 292.

          [8].      Bostock, 140 S. Ct. at 1743, 1747–49.

          [9].      See id. at 1762–63 (Alito, J., dissenting).

        [10].      For an account of Bostock emphasizing and defending its formalistic mode of analysis, see Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 279–82, 290–307 (2020).

        [11].      See, e.g., Eyer, supra note 7, at 1621–22.

        [12].      See Franklin, supra note 5, at 120 (noting “that all of the opinions in Bostock—the majority and the two dissents—embrace textualism” and situating that fact in the larger context of textualism’s ascendancy).

        [13].      See, e.g., Berman & Krishnamurthi, supra note 5; Blackman & Barnett, supra note 4; Whelan, supra note 4.

        [14].      The academic literature on the question addressed in Bostock is, of course, extensive. I identify the prior suggestions with the most affinity to mine and contrast those approaches below. See infra note 67 and Section III.A. For now, suffice it to say that the commentary favoring Bostock’s result on textualist grounds mostly defends and develops (or, for that matter, pioneered) the form of counterfactual argument employed by the Bostock majority. See, e.g., William N. Eskridge Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 343–46 (2017); Katie R. Eyer, Statutory Originalism and LGBT Rights, 54 Wake Forest L. Rev. 63, 73–80 (2019); Grove, supra note 10, at 281–82; Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208–11 (1994) [hereinafter Koppelman, Sex Discrimination]; Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 8–9 (2020) [hereinafter Koppelman, Subtractive Moves]. On the other side of the debate, commentators have criticized Bostock (and the commentary preceding it) for either botching the counterfactual analysis or failing to capture the ordinary meaning of the text (or both). See sources cited supra note 5. And meanwhile, others have defended the result that Bostock reached but do not claim (or, in fact, outright deny) that their arguments show Bostock to be sound on textualist premises. See, e.g., Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. on Regul. Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib [https://perma.cc/R6RP-PP7P]; Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman, What Taylor Swift and Beyoncé Teach Us About Sex and Causes, 169 U. Pa. L. Rev. Online 1 (2020). To my knowledge, no prior commentary develops the analysis of Title VII’s “because of” criterion that I advocate here, applies it to Bostock, or defends it as an account of the “ordinary meaning” relevant to textualism.

        [15].      Guha Krishnamurthi & Charanya Krishnaswami, Title VII and Caste Discrimination, 134 Harv. L. Rev. F. 456, 471 n.87 (2021) (“[E]ven under textualist reasoning, it is sufficiently early in the life of Bostock that we do not yet know the contours of a post-Bostock Title VII.”).

        [16].      See infra Section III.C.

        [17].      See infra Section III.B. Although some use “bisexual” and “pansexual” interchangeably, others take “pansexual” alone to encompass attraction to individuals who do not identify as either male or female. See generally Christopher K. Belous & Melissa L. Bauman, What’s in a Name? Exploring Pansexuality Online, 17 J. Bisexuality 58 (2017).

        [18].      Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1746 (2020).

        [19].      See infra Section III.B.

        [20].      Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

        [21].      See infra Section III.D.

        [22].      See infra Section III.E.

        [23].      See infra Section III.C.

        [24].      See infra Section III.C.

        [25].      42 U.S.C. § 2000e-2(a)(1).

        [26].      See, e.g., Berman & Krishnamurthi, supra note 5, at 125 (arguing that those who think “that Bostock reached the legally correct result . . . have strong grounds to reject textualism”); Sunstein, supra note 5 (using Bostock to illustrate the alleged indeterminacy of textualist arguments); Franklin, supra note 5 (similar); Grove, supra note 10 (using Bostock to illustrate different flavors of textualism, and defending the majority’s “formalistic” variant); see also infra notes 86, 233, 262–65 and accompanying text (discussing survey research).

        [27].      See, e.g., John F. Manning & Matthew C. Stephenson, Legislation and Regulation 115–39, 146–50, 219–22 (4th ed. 2021); William N. Eskridge Jr., James J. Brudney & Joshua A. Chafetz, Cases and Materials on Legislation and Regulation 35–56 (6th ed. Supp. 2021).

        [28].      William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1116 (2017); cf. id. (making the further claim that this question is itself a legal one).

        [29].      Cf. Richard H. Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1307 (2015) (concluding that there are “multiple linguistically and legally plausible senses of, and thus referents for, claims of legal meaning”); Franklin, supra note 5, at 120 (noting how Bostock has been taken as “confirmation of Justice Elena Kagan’s endlessly quoted observation that ‘[w]e’re all textualists now’ ”).

        [30].      See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.”); id. at 1836 (Kavanaugh, J., dissenting) (“The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”).

           *      Assistant Professor of Law, Harvard Law School. For helpful comments and discussion, I thank Larry Alexander, Erin Beeghly, Mitchell Berman, Jessica Clarke, Richard Fallon, Sherif Girgis, John Goldberg, Deborah Hellman, Adam Hosein, Max Kistler, Michael Klarman, Issa Kohler-Hausmann, Andrew Koppelman, Guha Krishnamurthi, Jed Lewinsohn, Kasper Lippert-Rasmussen, Anna Lvovsky, James Macleod, John Manning, Andrei Marmor, Todd Rakoff, Daphna Renan, Zalman Rothschild, Benjamin Sachs, Matthew Stephenson, Cass Sunstein, and Daniel Wodak; participants in the Harvard Law School Faculty Workshop and the Penn Law & Philosophy Workshop; and Isaac Green, Nathan Raab, and Catherine Willett, who also provided valuable research assistance. This project was supported by the Harvard Law School Summer Research Fund.    

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