Articles Archives – Southern California Law Review

Hiring and Firing Based on Political Views

January 2026January 2026Scott Altman*

INTRODUCTION

A law professor’s Wall Street Journal op-ed urged law firms not to hire anti-Zionist students who, in his words, “advocate hate and practice discrimination.”¹ Although discriminating against employees or prospective employees based on political speech is illegal in some places, including California, where the professor works,² employers have announced similar positions,³ and private organizations have emerged to facilitate employment denial and other social and economic penalties for pro-Palestinian students, professors, and professionals.⁴

These events are hardly unique. Employers have excluded workers because of their views on sex or gender identity, including opposition to same-sex intimacy,⁵ support for same-sex marriage,⁶ and opinions that there are only two immutable sexes.⁷

Employers have fired employees for political speech or affiliations. An English company fired a bus driver after he won an election as a member of a far-right political party with racist positions.⁸ After the recent killing of right-wing activist Charlie Kirk, some conservatives successfully called for doxxing and firing people seen as celebrating his death or criticizing his views.⁹ Disney fired The Mandalorian actor Gina Carano because she compared the treatment of Trump supporters to that of Jews during the Holocaust.¹⁰ The Metropolitan Opera fired Russian-Austrian singer Anna Netrebko for refusing to condemn Vladimir Putin after he invaded Ukraine.¹¹ Seventy-five years ago, people in some U.S. industries were fired and shunned for perceived affiliation with the Communist Party.¹²

How should we assess these actions? Should the law forbid employment denial based on political or moral views, association, or speech outside the workplace? Should our assessment depend on whether the employee has reasonable views? The existence of organized boycotts targeting unpopular views? The employer’s motive (non-complicity, association, hatred, punishment, profit, job-effectiveness)? The employer’s size, the kind of job, or the procedural posture (firing versus not hiring)?

How do these examples differ, if they do, from #MeToo era efforts to hold sexual harassers accountable, including public dissemination of alleged harasser lists¹³ and the firing of accused harassers?¹⁴ Is doxxing alleged harassers different from doxxing alleged antisemites or alleged Communists?

This Article has two aims. First, it explains why ideological employment exclusion is typically wrong and appropriately prohibited. Individuals and society suffer serious setbacks from ideological exclusion: undermining personal integrity (a person’s ability to live according to their values), chilling public discourse, and exacerbating affective polarization (the tendency to dislike and distrust those with opposing views). Employers, by contrast, have less at stake. Sometimes, employers use ideological exclusion to pursue unreasonable goals, including corruption, unjust punishment, and disrespectful uses of non-complicity. At other times, employers use ideological exclusion for legitimate purposes, including protecting their associational rights and speech, as well as pursuing profitability. However, employers can usually achieve these goals without undermining employee authenticity or valuable public ends.

Second, I use these examples of ideological exclusion to examine the moral limits of social pressure, helping to sort out a longstanding puzzle. Criticizing, shunning, shaming, and boycotting are essential to our freedom. We use them to communicate, achieve political goals, punish wrongdoers, enforce norms, and exercise associational freedom. They also threaten to undermine vital interests. We use them abusively to silence dissent, punish people unjustly, and treat excluded people with unwarranted disrespect. This puzzle is often linked to John Stuart Mill. He embraced our right to shun and criticize the objects of our contempt and valorized the social pressure created as the natural consequence of misbehavior. However, he feared these same

techniques would undermine freedom, inhibiting their targets’ speech and inducing stifling conformity.¹⁵

I offer an account of social power’s limits that might address Mill’s puzzle. The account emphasizes fair norms of social cooperation. Most people want to speak freely, control associations, exert political influence, and punish wrongdoers. We also want to avoid pressures that undermine our freedom of association and speech, as well as unjust punishment. These interests sometimes conflict, and a fair resolution of conflicts requires setting reasonable terms of cooperation—terms justified by moral arguments that all reasonable people can accept. This Article uses employment denial to explore how fair norms of cooperation limit the permissible use of intentional and unintentional social pressure.

The Article includes five Parts. Part I outlines traditional justifications for banning ideological employment exclusion: it gives employers excessive control over employees’ lives, undermines democratic institutions, constitutes wrongful discrimination, and violates employee speech rights. These accounts are promising but insufficient. Part I then offers the Article’s central argument. Allowing ideological employment exclusion unfairly distributes opportunities for living with integrity and unnecessarily contributes to two social problems: self-censorship and political polarization. Part I presents the argument in general terms. Later parts fill in details and consider examples.

Part II discusses the intentional use of social pressure to change integrity-connected behavior. It argues that intentional uses of social pressure are rarely justified when the target behavior is central to integrity. They often aim to corrupt targets or impose unjust punishments. When intentional social pressure is used to impose deserved punishments, it risks dangerous expansion.

Sometimes, employers do not aim to change employee behavior. Instead, they risk public and private harm while pursuing aims connected to employer integrity, such as non-complicity, non-association, or employer speech. Non-complicity means avoiding certain connections (such as employment) with someone else’s allegedly immoral behavior. Part III argues that we should reject employer non-complicity as disrespectful and

that most employers can protect their integrity interests in speech and association in less harmful ways.

Part IV examines employer financial goals. For most employers, these too can be advanced in less harmful ways. A conclusion follows, offering final reflections that explain why the Article’s moral arguments counsel legal regulation. It revisits Mill’s puzzle and the moral limits of social pressure, returns to the examples that began the Article, and addresses the objection that we should allow employment exclusion against people who express hatred or other harmful views.

The Article does not detail how to structure legal rules, but several models are available. Throughout Europe and in several U.S. states, employment laws prohibit dismissal and sometimes refusal to hire based on philosophical or political beliefs, as well as speech and association outside of work.¹⁶ These laws sometimes exclude hate speech, speech advocating violence, or speech that is unconnected to the speaker’s worldview.¹⁷ They also exempt some employers and sometimes provide defenses for business necessity. This Article focuses on hiring and firing private-sector employees based on their associations and speech outside the workplace on topics unrelated to their employment. Questions about speech in and about the workplace (such as criticizing an employer or seeking higher wages or unionization) and in government employment are important but raise distinct issues.¹⁸

I. The Harm of Ideological Employment Denial

Like everyone else, employers have property and associational rights. In our market economy, absent pressing contrary interests, perhaps employers should be able to select employees as they wish, including based on the employees’ views and values.

Moreover, social pressures, such as shunning, shaming, and boycotting, serve valuable functions. When people do or say objectionable things, we communicate our disdain and enforce norms through social exclusion. As people often say, “Freedom of speech does not mean freedom from consequences.” Such pressure also supplements legal regulation. For example, the #MeToo movement used shaming and shunning to punish and deter illegal behavior and reinforce values. Employers have a presumptive right to participate in social exclusion that communicates disdain and enforces norms.

Nevertheless, the examples mentioned above strike people as morally and legally problematic. What is wrong with denying someone employment based on their views, speech, and associations? In the next Section, I briefly evaluate four standard accounts and explain why they need to be supplemented. I devote the following two Sections to outlining an alternative account: ideological employment exclusion unreasonably undermines employee efforts to live with integrity and exacerbates social problems of censorship and polarization.

A. Four Traditional Approaches

Writers often approach ideological hiring and firing from the perspectives of employment law or democratic theory. Progressive employment scholars situate it in the broader problem of employer power: we should abolish at-will employment and limit employers’ control over employees’ private lives.¹⁹ They lump ideological job denial with controlling employees’ diets, smoking habits, or sex lives.²⁰ Democratic theorists focus narrowly on exclusion based on party affiliation or support for specific candidates or ballot measures. Allowing employers to pressure employees about votes or political donations distorts our political process.²¹

I agree with both views, but they do not exhaust the problems with ideological hiring and firing. Many problematic job denials are unconnected to electoral politics. Although we have reason to worry about employers controlling their employees’ lives, control over their speech seems worse than control over their smoking (and should trouble people even if they do not object to employer power generally). For these reasons, we must supplement political and power concerns with a broader account.

Two other theories might better explain the range of concerns raised by ideological employment exclusion. Perhaps denying someone a job based on their views is wrongful discrimination, much like denying them a job based on their race, religion, or sex.²² Alternatively, denying them a job based on their expression might violate their free speech rights.²³ Although these claims have merit, they are only partly persuasive without supplemental accounts.

The goals of discrimination law are disputed. Various theories emphasize anti-subordination, immutability, and formal equality. Anti-subordination accounts, which focus on unjust, persistent, and systemic disadvantages suffered by some groups, seem like a poor fit because many people who are denied employment based on their views are not subordinated. Some employers refuse to hire Trump supporters.²⁴ They are not part of a subordinated group. Nor are Anna Netrebko and Gina Carano. Although pro-Palestinian protesters are advocating for oppressed people, the protesters are not (or not uniformly) part of subordinated groups. Additionally, the companies that deny them jobs believe they support anti-subordination because they are trying to combat antisemitism. Moreover, we may wonder if some ideological groups, such as avowed racists, are justly marginalized and do not deserve protection from subordination.

Immutability is generally a problematic basis for banning discrimination.²⁵ Even if we embrace immutability, it is unclear why we should regard ideas or their expression as immutable. People change their views and choose whether to speak. So, we need a theory to explain why pressuring people to change or hide their views is unreasonable.

Finally, formal accounts of equality must be supplemented to explain which features demand equal treatment and which allow unequal treatment. Formal equality advocates often quote Dr. Martin Luther King Jr.’s statement that we should judge people not “by the color of their skin but by the content of their character.”²⁶ One would think that a person’s beliefs form the core of their character’s content and that judging people by their beliefs shows them appropriate respect. Additionally, employees’ beliefs might be relevant to their job performance in ways their race and religion rarely are.

A free speech account seems more promising. Speech rights are not limited to subordinated groups or immutable characteristics. If employers can fire or refuse to hire people based on their expressed views, the prospect of lost employment might chill speech, harming individuals and society.

However, unlike discrimination, which is unlawful for many private entities,²⁷ free speech requirements in the U.S.²⁸ apply primarily to governments.²⁹ Even in countries that restrict private entities from limiting speech, the mere power to chill speech does not imply a duty to facilitate open dialogue.³⁰ For example, if young people refuse to date Trump supporters,³¹ their dating choices might chill pro-Trump speech. Indeed, some evidence suggests that Republicans systematically lie about their politics on dating apps.³² Yet, refusing to date someone for political reasons does not violate their political or speech rights.

Of course, employment differs from dating in many ways, including the centrality of associational interests in dating. I devote much of this Article to explaining how employer-created incentives differ from other social pressures that might silence unpopular views. However, merely noting that social pressure can inhibit speech does not explain when and why we should regard it as violating speech rights.³³ Explaining this requires addressing Mill’s puzzle.

B. Threats to Personal Integrity

We might address Mill’s puzzle and better understand employment denial by focusing on the value of living with integrity. Integrity (also called authenticity) means living according to the values we embrace by pursuing projects that match our values, avoiding actions that conflict with them, and, at least sometimes, revealing our values to others. Speech is critical to living with integrity in the context of social pressure, because being silenced by social pressure can render someone hypocritical.³⁴

We cannot always live according to our values. Doing so may require actions that harm others, including undermining their integrity. A core goal of social cooperation is establishing institutions that enable people to live authentically and, when conflicts arise, distribute opportunities for authenticity equitably.³⁵

These institutions sometimes place the responsibility for living authentically on individuals whose integrity is at risk. People must often be resilient in the face of pressure, protecting their capacity for authentic action and resisting incentives for hypocrisy. If I change or hide my views because I fear my friends will abandon me or people will criticize me, the fault lies with my weak character, not with my friends or critics. Resisting hypocrisy is my responsibility because criticism and friendships based on shared values are vital institutions that could not otherwise exist. This explains why those who will not date Trump supporters do not violate their speech or association rights. Nevertheless, a society in which people with unpopular views are broadly shunned and unable to find jobs does not sufficiently support authenticity. The question raised by the examples at the start of this Article (and the core of Mill’s puzzle) is how to allocate responsibility for sustaining authenticity between individual resilience and social restraint. If we need social restraint, sometimes the law can help achieve it.

Allocating opportunities for authenticity equitably demands that we sometimes constrain the use of social pressure.³⁶ Social pressure is usually wrong when used intentionally to change other people’s behavior in ways that undermine their integrity. As I will explain in Part II, it often threatens to corrupt targets or impose social punishments on people who are not culpable. Even when used for legitimate purposes, such as just punishment, the risk of expansion to illicit goals requires caution about using social pressure intentionally to alter integrity-connected behavior.

Sometimes, we inadvertently impose social pressure while pursuing other aims in ways that risk undermining other people’s integrity. Such unintended pressure is sometimes appropriate, as it is in the dating example. However, risking other people’s integrity is sometimes unjustified because our aims are illicit or can be achieved in less harmful ways. A fair opportunity to live with integrity will not favor employers pursuing illicit aims or goals that can be achieved without undermining integrity.

C. Two Public Harms: Affective Polarization and Censorship

In addition to undermining employee integrity, ideological employment denial contributes to two public harms: affective polarization and censorship.

Affective polarization (our tendency to demonize those who disagree with us) is a growing problem. We increasingly distrust those with different views, attribute bad motives to them, avoid interacting with them, live in separate places, and get information from different sources.³⁷ This problem fuels the demand for employment exclusion. As we increasingly dislike and distrust those with different views, we avoid connections with them, including workplace connections. In turn, employment denial might exacerbate polarization by increasing ideological segregation and distrust through non-exposure.³⁸ In this way, polarization and employment denial might form a vicious cycle.

Banning ideological employment denial might encourage politically integrated workplaces and support a willingness to work together despite political differences. We should not normalize the unwillingness to associate with or cooperate with people whose views we disdain. Instead, we need opportunities to build trust in depoliticized environments. An appropriately supportive workplace is a good candidate.

This argument for workplace integration mirrors Cynthia Estlund’s claim about race discrimination. She argued that laws against employment discrimination can foster more public cooperation and social trust outside the workplace.³⁹ We ban race discrimination primarily because it wrongs victims, but a side benefit might be that doing so facilitates cooperation across racial lines. The same might be true for ideological workplace integration. We should ban ideological exclusion because it undermines employee integrity for insufficient reasons. An added benefit to banning ideological exclusion might be that it reduces polarization. Some evidence suggests that workplace exposure to people with different political views fosters political tolerance.⁴⁰ As with race discrimination, ideological integration may require legal rules to prevent exclusion.

The benefits of ideological integration do not depend on workplaces fostering political discussion or expression. Indeed, a depoliticized workplace, where such discussions are discouraged, may facilitate trust-building across ideological lines, allowing people to view their political opponents as whole individuals.⁴¹ Of course, depoliticization is not appropriate for all workplaces.⁴² But for many employers, it is feasible. The argument does not depend on businesses seeking or benefiting from ideological diversity if providing diversity does not impose significant internal burdens (discussed in Part IV). Like Estlund’s, my argument offers a reason to ban exclusionary policies. The resulting workplace diversity might lead to more cooperation.

In addition to exacerbating polarization, ideological employment exclusion might undermine the public benefits of free speech. Although the actions of a few employers who fire or refuse to hire employees for their controversial speech would not affect public discourse, many employers might (in concert or merely in parallel) exclude employees with unpopular views. They might do so intentionally or based on algorithms that screen applicants’ social media. When paired with organized groups and politicians pressing employers to boycott employees with unpopular views, these exclusions could chill expression. Chilling is unnecessary because (as I argue below) most employers’ goals are either illicit or can be achieved without resorting to employment denial or speech suppression.

This speech-chilling concern may seem alarmist. After all, most employers seem to care little about employee speech outside the workplace. If, on occasion, a few law firms refuse to hire protesting students or an opera company fires a singer, those individuals might suffer an unjust penalty. However, few people will change their behavior to avoid an exceedingly unlikely job denial.

Perhaps the worry is alarmist. However, culture wars and cancel culture appear to be intensifying, as is the use of algorithms to screen job applicants, including their social media activity.⁴³ A rational person concerned about job access might err on the side of caution, avoiding any controversial statement, even if there is no current movement to deny jobs based on a specific controversy.⁴⁴

D. Summing Up

The argument in Part I outlined three harms caused by ideological employment exclusion: it threatens integrity, exacerbates polarization, and chills speech. However, these harms are not necessarily things we should ask employers to prevent. As I noted earlier, we need reasons to ask employers to help preserve free speech and employee integrity rather than impose on employees the responsibility to resist the temptations of silence.⁴⁵

Part II will outline why employers should be responsible for some of these harms. Employers often use social pressure for illicit purposes. They also impose social pressure for legitimate purposes that could be pursued in less harmful ways. Before elaborating on these ideas, I want to recall traditional worries about employer power and anti-subordination. I mentioned that power-based accounts did not fully capture the wrong of employment exclusion, which seems more problematic when it is controlling employee speech than other aspects of employees’ lives. As to anti-subordination, many excluded employees (including famous opera singers and law students who might be denied jobs at large law firms) are not necessarily members of subordinated groups.

Although I stand by this position—that employer power and anti-subordination concerns do not fully account for the wrongfulness of ideological employment exclusion—these concerns do explain why employers’ wrongful use of social pressure is especially problematic. The harm that employers inflict on integrity, polarization, and free speech would not be possible if employers did not exercise power over their employees. The need for employment as a source of basic sustenance is why employer exclusion creates intense social pressure, and this is one reason why asking employees to resist it is problematic.⁴⁶ Additionally, although some employees who are excluded based on ideology are not among the most vulnerable in society, employer power often silences vulnerable people and threatens to suppress speech supporting subordinated groups.⁴⁷ Part II will emphasize other reasons for thinking that employer exclusion results in unjust distributions of opportunities for authenticity. However, the source of employer social power and its frequent use to undermine integrity for those with little power and suppress speech advancing their rights further justify restricting employer freedom rather than imposing duties on employees to resist pressure on their integrity.

The following sections elaborate on my core claims—that employers’ interests do not justify harms to integrity, speech, and polarization because employers either aim at illicit ends or can pursue legitimate goals in less harmful ways. Part II addresses intentional efforts to change employee behavior. Part III examines employer integrity interests in non-complicity, non-association, and speech. Part IV considers employer economic interests.

II. Intending to Change Behavior through Social Pressure

Ideological boycotts sometimes aim to corrupt their targets or punish people who do not deserve punishment. To the extent that employers aim for these outcomes, we have reason to limit their power to do so, both to fairly allocate opportunities for integrity and to combat the public harms of censorship and polarization. Even if employers intend to change integrity-related behavior for legitimate reasons, such as deserved punishment, we should often restrict such efforts, because they cannot easily be confined to legitimate cases, and we have reason to fear that they will be weaponized as tools in culture wars.

A. Corrupting Aims

Organized commercial shunning is typically called a boycott.⁴⁸ Some boycotts intentionally pressure targets to change, hide, or act against their values by offering financial or other incentives. These boycotts are corrupting (they aim to corrupt their targets) because they seek to induce others to act for morally inappropriate reasons.⁴⁹ Suppose a business donates profits to charities that I think are immoral. If I organize a boycott to induce the owners to stop supporting these causes, I am treating them disrespectfully. I try to entice them to abandon or hide their moral views or to refrain from acting on them. I do not hope to persuade them that their views are wrong. Instead, I aim to pressure them into hypocrisy by offering a bribe to compromise their morality. I would reject money as a legitimate reason to change or hide my moral views. So, I should not aim to entice others to abandon their values for profit.⁵⁰

Of course, rejecting commercial ties with someone can occur outside an organized boycott and need not aim to change anyone’s behavior. Below, I address several examples, including actions based on non-association or non-complicity. Moreover, boycotts aimed at changing behavior are not always corrupting. Some boycotts target businesses to change their profit-maximizing choices, such as an anti-sweatshop boycott encouraging a manufacturer to provide better working conditions. The boycott intentionally pressures the business to change its behavior. However, the boycott does not corrupt its decision because the choice (to exploit or endanger workers) aims at profitability. Corruption arises when social or financial pressure entices someone to change their behavior for reasons the target considers morally irrelevant.⁵¹ In the anti-sweatshop boycott example, there is no corruption, because the employer was already committed to making decisions based on profitability, and the boycotters tried to make exploitation less profitable.⁵²

Another example of non-corrupting pressure intended to change behavior is shunning or shaming people for actions that are unrelated to integrity. If I shame you for failing to contribute to a group project you agreed to join, hoping to spur increased contribution, the pressure to contribute is not corrupting, assuming your non-contribution was due to mere laziness rather than a principled opposition to contributing. Such social pressure does not undermine your effort to live according to your values by tempting you to embrace irrelevant reasons. Your laziness likely does not reflect the values you embrace.

The employment boycott against pro-Palestinian student activists seems to have been aimed at corrupting them. The professor who urged law firms not to hire anti-Zionist students supported the boycott by saying, “When students face consequences for their actions, they straighten up.”⁵³ He regarded the students’ views and associational choices as hateful. So, he aimed to deter them from expressing those views or continuing their associational choices by creating financial consequences. Admittedly, the professor offered other reasons for the boycott, including a concern that law firms or their clients might not want to affiliate with allegedly antisemitic students—associational and economic concerns rather than a corrupting incentive.⁵⁴ However, the “facing consequences” and “shaping up” language suggest that creating a corrupting incentive was a central aim of his boycott plan.

B. Punitive Aims

Social pressure that is intended to influence behavior is not corrupting if it seeks to deter and punish wrongdoing.⁵⁵ Social punishments supplement state regulation and enforcement as a means of preventing harm.⁵⁶ For example, much of the #MeToo movement’s success relied on boycotts, shaming, and shunning to punish and deter sexual harassment.⁵⁷ That movement reminds us that some speakers deserve punishment for culpable expression: their speech causes harm and contributes little to debate. Workplace harassment laws appropriately restrict harassing speech that undermines workplace equality.⁵⁸

Perhaps a comparable idea applies to hate speech and employment exclusion. Although courts in the U.S. have not upheld hate speech laws, there are plausible moral arguments for punishing hate speech, which harms people, undermines equality and respect, and (if narrowly defined) contributes little to debate or knowledge.⁵⁹ We might consider embracing hate speech curtailment by non-governmental forces, because social pressure can help combat the harm of hateful ideas by punishing those who express them.⁶⁰ Job denial might deter and punish hate speech, much like shaming and shunning deter and punish sexual harassment.⁶¹

Although social punishment for hate speech has some appeal, we should approach it cautiously. Even when free speech and enforced orthodoxy are not at stake, social punishment is problematic; it circumvents due process and other legal protections, such as the requirement of proof beyond a reasonable doubt, the right to cross-examine witnesses, the right to appeal, and rules against disproportionate punishment. Punishing speech adds new dangers to these general worries.

The appeal and the dangers of this approach are illustrated by punishing pro-Palestinian protesters. The appeal lies in trying to combat antisemitism, a problem I do not mean to minimize. Many Jews viewed recent campus pro-Palestinian protests with concern, connecting them with antisemitism and antisemitic violence. They viewed refusals to condemn Hamas and chants of “from the river to the sea” as barely coded calls for violence against Jews.⁶² When paired with rising antisemitic violence,⁶³ including violence and harassment during some protests⁶⁴ and claims of discriminatory behavior by universities,⁶⁵ they saw the need to condemn and punish antisemitic rhetoric and advocacy.

The dangers of punishing speech are equally evident in protester boycotts. One danger is punishing people for non-culpable speech—speech that includes political ideas or does not embrace racial and religious hate. Boycotters cite several objectionable actions by campus activists. Student organizations would not invite speakers who supported Israel’s right to exist,⁶⁶ and protestors refused to condemn Hamas⁶⁷ and used slogans such as “from the river to the sea,” which boycotters interpret as a call for the violent removal of all Jews from Israel.

Of course, some protesters deserve punishment. They engaged in culpable behavior, including violence,⁶⁸ threats of violence, targeted harassment,⁶⁹ the use of racial and religious epithets and stereotypes,⁷⁰ and statements that Jews deserve to die.⁷¹ However, the proposed boycott did not target only protesters who were credibly charged with such wrongdoing.⁷² Nor was the violence and harassment committed by some protesters so widespread that we can presume all protesters participated.

I believe most student protestors do not deserve punishment. The speech and associational acts targeted by boycotters differed from harassment, epithets, stereotypes, and calls for violence.⁷³ Their purposes and intended meanings were ambiguous, and some reasonable interpretations of their speech included appropriately protected political ideas.⁷⁴ This ambiguity and political content argue against culpability.⁷⁵ Although political speakers sometimes use ambiguous statements to dog-whistle intentionally hateful ideas, it seems unlikely that most student protestors had that intent.

Beyond ambiguity and political content, we should protect statements made during protests that would be unacceptable in other contexts. Discourteous and violent-sounding speech has a traditional home in political protests and social movements.⁷⁶ Provocative slogans draw attention to causes and build enthusiasm; they are rarely literal statements of belief or intent. South African anti-Apartheid protestors sometimes rallied around “one settler, one bullet.”⁷⁷ Anti-police protesters in the U.S. invoked “No justice, no peace” or “All cops are bastards.” The gun rights movement repeated, “I’ll give you my gun when you take it from my cold, dead hands.”⁷⁸ Malcolm X urged “justice by any means necessary.”⁷⁹ Such slogans vary in whether they can be interpreted as non-violent or risk inciting actual violence. But they are commonly used to protest injustices.

Some people are unpersuaded by the claim that most pro-Palestinian student protesters were blameless.⁸⁰ Although I do not share this view, even if it is correct, social punishment for the protestors’ speech is problematic. One narrow reason is that punitive attitudes toward students (especially by their teachers) are inappropriate when the students’ misbehavior stems from an insufficient understanding of complex situations. Education is a more effective and morally appropriate response to uninformed young people and the radical viewpoints they often embrace. The argument is not that these students are too young to be responsible for their actions but that wrongs born of ignorance deserve different responses from wrongs born of greed, malice, and indifference to human suffering.⁸¹

Of course, specific considerations about student speech and protest slogans do not cover all employee speech. This leads to a broader set of reasons against punishing hate speech. We often slide quickly down the slope from punishing low-content hate speech to punishing speech that offends us, advocates outcomes we think deplorable, or suggests that the speaker harbors hateful beliefs. If we leave the decision about which ideas are hateful to the private sector, we may find that the category spirals to include many political ideas that people think are morally mistaken. Perhaps critics of pro-Palestinian protests are correct that protesters’ beliefs and statements are antisemitic, harmful, and based on hatred or bias. But these beliefs and statements also represent political views; they are not mere epithets. If we declare that harmful and biased expressions are culpable even though they communicate political views, we open ourselves to declaring other views culpable. Some people regard Black Lives Matter as supporting racist views,⁸² and many other people view opposition to affirmative action and Diversity, Equity, and Inclusion (“DEI”) as racist.⁸³ That they can be described this way should not lead us to punish their expression or to let the state decide which political views are hateful enough to deserve social punishment.

Punishing those whose views we find distasteful is unjust. Such punishments are also harmful, as they threaten to censor dissenting views. This worry is hardly speculative. Social and legal pressure in the U.S. and Israel has led many advocates for Palestinian rights to fear that they cannot speak freely.⁸⁴ The Trump administration’s recent visa revocations, deportations, and attacks on universities confirm that their fears are well-founded.

The worry about expansion extends from punishing speech to punishing silence. One reason for boycotting the campus protesters was their refusal to condemn Hamas. Similarly, Hollywood professionals were fired for refusing to sign loyalty oaths,⁸⁵ and the Metropolitan Opera fired Anna Netrebko for refusing to denounce Putin. It appears that corrupting Netrebko’s choices and punishing her were among the opera’s aims.⁸⁶ Given the understandable tendency to support one’s home country, reasonable fears of retaliation for denouncing a sitting leader, and the harms of coerced speech, we should not punish a refusal to condemn people or swear allegiance.

One might hope that legally regulating social punishment could prevent its excessive use to punish valuable speech and dissenting views. Laws could permit ideological employment discrimination only against those who engage in hate speech, narrowly defined. However, this approach seems likely to fail. Lawmakers often aim to suppress dissenting views by calling them hate speech, as one can see from recent hearings in the U.S. Congress.⁸⁷ European efforts to restrict ideological employment exclusion but leave hate speech unprotected have been problematic.⁸⁸ Some people think that hate speech laws in Europe have been applied in ways that produce self-censorship.⁸⁹ In the employment context, several workers were fired for declaring that only two sexes exist, and trial courts approved their dismissals.⁹⁰ Although these trial decisions were later overturned, the disputes show how easily categories can expand.

Even if we could trust lawmakers and courts to confine ideological discrimination to narrow examples of hate speech, this approach likely could not be implemented in the U.S. due to constitutional concerns about vagueness and content-based speech restrictions.⁹¹

Injustice and censorship are not the only concerns about punishing speech. Social penalties may increasingly be used to persecute ideological enemies, exacerbating our polarization.⁹² Moreover, weaponizing employment exclusion might backfire. Many current proponents of ideological boycotts could become targets of boycotts if political sentiments change. Currently, worldwide support for Israel is falling. If Zionism became sufficiently unpopular, we might see pressure on companies not to hire Zionists, an expanded version of BDS efforts. This outcome could mirror prior hiring bans that targeted Jews, including the purge of alleged communists in Hollywood.⁹³ The danger of that outcome should worry those who would wield punitive job denial against anti-Zionists.

To summarize the argument, ideological employment denial often aims to corrupt targets by inducing them to change or conceal their principled commitments through financial inducements. It also punishes people who have not acted culpably. Even when used to punish and deter culpable behavior, the practice cannot easily be contained for practical and constitutional reasons. Of course, not all ideological employment denial aims to corrupt or punish. In the following two Parts, I consider other employer purposes.

III. Inadvertent Social Pressure and Employer Integrity

Most ideological employment exclusion is unconnected to boycotts or punishment. It occurs at the firm level, is uncoordinated with other employers, and does not aim to change employees’ or prospective employees’ behavior. Instead, firms seeking to protect their interests inadvertently impose social pressure, risking, but not intending, harm to individuals and the public. In this Part, I consider employer efforts to protect their integrity by avoiding complicity and unwanted associations, as well as engaging in employer speech. I defer discussion of the employer’s economic goals to Part IV.

I will argue that exclusion based on non-complicity is usually unreasonable. Non-association and employer speech are legitimate aims. However, for most employers, non-association is not a pressing need, and employers can pursue their speech goals without undermining employee integrity. Employees’ integrity interests and the public’s interest in employee speech, as well as the public’s interest in avoiding polarization, counsel against ideological employment exclusion when employers can pursue their goals in other ways. In some instances, equity also favors employee interests because the burdens of employer exclusion fall on disadvantaged groups and suppress speech needed to defend the interests of subordinated groups.

A. Non-Complicity

Some employers might deny people jobs to avoid complicity. Complicity means materially or symbolically supporting or benefiting from someone else’s allegedly immoral acts. Avoiding complicity is part of living with integrity, much like expressing one’s views. Although people disagree on what constitutes undesirable complicity (and, of course, also disagree about what acts are immoral), living according to one’s values, including one’s views about complicity, is part of living with integrity.⁹⁴ Unlike the corrupting and punitive aims discussed above, avoiding complicity does not aim to disrupt other people’s efforts to live authentically (as a goal or an intended means of pursuing a goal).

Non-complicity is not a typical reason for ideological employment denial. Few employers believe they become complicit by hiring someone whose views or acts they regard as immoral. Because commerce connects everyone with people who spend money on things they think are illicit, most people embrace a constrained interpretation of complicity.⁹⁵

However, employers who believe that paying employees makes them complicit in employees’ speech and actions present a conflict between two integrity interests. If we protect the employer, a potential employee must remain silent or risk unemployment. If we do not, an employer must become complicit or cease employing people. The decision about who to protect depends on which person should accept the setback to protect the other’s integrity. This demands an equitable allocation of opportunities for living authentically.

How should we evaluate this conflict? We might ask who is morally right. Does the employer have a correct view of complicity? Are the employee’s actions immoral? However, the value of living with integrity (for both employer and employee) persists even for people with mistaken views about morality or complicity. Moreover, when we move from discussing moral to legal questions, it seems unlikely that a liberal state should base employment rules on the truth of employees’ or employers’ controversial moral views, or that we should trust the state to make such decisions.⁹⁶

We might be tempted to reject the employer’s view of complicity as unreasonably expansive. Many people think it is implausible that an employer becomes complicit in an employee’s actions merely by employing them, particularly if employment does not advance the employee’s goals beyond providing a salary. However, this view of complicity is no more expansive than the views commonly embraced by consumers who participate in boycotts, such as those who refused to buy sandwiches from Chick-fil-A because its owner donated to charities opposing same-sex marriage.⁹⁷

In a recent article on vendor discrimination, I argued for an approach based on reason-giving. Religious vendors sometimes claim that selling wedding-related goods to same-sex couples makes them complicit in actions the vendors regard as immoral. This creates a dilemma: If the law permits them to discriminate, same-sex couples are denied equal status in commerce. Conversely, if the law disallows discrimination, vendors become complicit or must change their businesses.

Justifications for rules should be acceptable to the people they disadvantage. The vendor offers a justification based on a seemingly reasonable aim—avoiding complicity—that any person should consider valuable and be willing to facilitate. However, this neutral description masks its underlying disdain. The same-sex couple must suffer discrimination because the vendor views actions central to their identity as immoral. Accepting this reason requires customers to treat the vendor’s desire to avoid their supposed sin as reasonable. No one should have to accept as reasonable the perspective that they are sinful, because doing so undermines their dignity. In contrast, when the same-sex couple seeks service from the vendor, they are not trying to express or enact any disdain for the vendor’s religion. I concluded that, in most cases, we should regard the vendor’s effort to live authentically by discriminating as unreasonable, because its justification asks victims to accept others’ disdain for them as a reason for rules that disadvantage them. This is especially unreasonable when vendors have other means of maintaining integrity, such as finding other jobs.⁹⁸

To be clear, my argument did not rely on condemning the vendor’s beliefs as homophobic or immoral. It would be equally disrespectful for a feminist baker not to provide a cake for a fundamentalist wedding because she thinks fundamentalist marriages are oppressive. The disrespect comes from invoking someone’s sinfulness or the evil of their views to justify

denying commercial contact. It does not lie in judging which party has morally correct views.

A comparable argument applies to most cases of complicity-avoiding ideological employment denial. For example, imagine a law firm fires or refuses to hire a lawyer whose social media post said that Palestinian violence was an understandable response to Israeli oppression. The firm believes that employing this lawyer would make it complicit in terrorism or antisemitism. Not hiring the lawyer inhibits her ability to express solidarity with Palestinians and, therefore, to live authentically. The lawyer’s desire to express her views does not rely on disdain for the law firm or its values. However, the law firm’s non-complicity efforts depend on its disdain for the lawyer’s deeply held views. By invoking non-complicity with terrorism or antisemitism, the firm asserts that the lawyer’s values are evil—that is, antisemitic or terrorist-sympathizing. The law firm’s non-complicity justification masks disdain in the same way as a feminist baker who does not want to sell wedding cakes for fundamentalist weddings.⁹⁹ Again, the problem is not that the law firm is wrong to think the lawyer’s position is antisemitic or that the feminist baker is wrong to condemn fundamentalist marriages as oppressive. The problem is expecting someone committed to the other side to accept your moral judgment as a reason to exclude them from commerce.

Of course, employment exclusion differs from vendor discrimination in several ways, including having different material consequences. Being fired or not hired often imposes financial and personal costs far greater than being turned away by a vendor. However, my point concerns the interest in non-complicity, which is similar in both examples. In any case, the more significant material stakes for employees only strengthen the argument for restricting employer action based on non-complicity compared to the vendor argument.

Some scholars argue that we should accept non-complicity as grounds for excluding people from pursuing hateful or oppressive goals.¹⁰⁰ They might forbid most employer exclusion based on ideology but allow employers to deny jobs to racists or antisemites to avoid complicity. However, their position faces problems.¹⁰¹ Like the argument for punishing hate speech, this position has the potential to expand widely. Suppose employers can exclude antisemites based on non-complicity. Can they also exclude abortion supporters or opponents because people with these views favor murder or the oppression of women? What about supporters or opponents of DEI if the employer thinks their views are racist? Many positions on controversial issues can be described as hateful and oppressive. Exempting hateful positions from a general ban on employment exclusion might expand to cover a wide range of political speech.

My prior article concluded that vendors whose consciences preclude them from serving customers should protect their integrity by changing businesses.¹⁰² Their reason for excluding customers is disrespectful, and they have alternative ways to live with integrity. The same applies to employers who object to employing people whose values they reject. They should not employ people if they think employment makes them complicit in their employees’ speech or political acts.

This might seem unreasonably burdensome to employers. However, several considerations support it. First, disrespectful reasons should not be counted when assessing fair opportunities for living with integrity. Second, the position that employing someone makes you complicit in their activities is hard to accommodate. People who hold such views have as much interest as anyone else in living with integrity. But by embracing this view, they make outsized demands on others to help them avoid complicity. The harm they cause is not merely the undermining of one employee’s integrity. They create incentives for all potential employees to hide their views, thereby harming the public by exacerbating censorship and polarization. Unlike the values of speech and non-polarization, non-complicity serves only private ends. There is no public interest in expansive non-complicity views, parallel to the public interest in open discussion and non-polarization. Third, few people hold such broad complicity concerns, and fewer still hold them intensely. The law needs mechanisms to distinguish sincere invocations of a view strongly felt from pretextual and exaggerated versions. One sensible solution to this sorting problem is to ask people to protect their integrity, even at significant cost, rather than imposing costs on others.

B. Employer Non-Association and Speech

Employers might advance several associational interests to justify ideological exclusion. One interest is that they do not want to be near people whose views they dislike. This interest is sometimes a version of non-complicity, relying on the idea that the employer is morally tainted by proximity (discussed above). However, it might not reflect complicity; it might reflect discomfort with being around people with different views or distrust of people with different views.

We should resist exclusion claims based on employer discomfort and distrust. Discomfort often masks disdain and has been a code word to justify discrimination. More broadly, we should combat rather than indulge discomfort and distrust deriving from disagreement. Discomfort and distrust are at the core of affective polarization. The law should encourage people to become comfortable working across political and moral divides and to build trust by working together.

Other associational interests are not urgent for most businesses. They do not resemble intimate associations, in which bonds of affection and admiration are central to the relationship, or private groups devoted to causes or common interests, in which shared purposes are central to achieving the group’s goals. For this reason, courts have not accepted associational interests as pressing for most businesses.¹⁰³

Employers sometimes invoke speech interests to justify excluding employees. They hope that excluding certain workers will communicate their values to employees or potential customers. For example, to show customers and workers that the company embraces equality and diversity, it might refuse to hire workers who reject those values or fail to show adequate commitment to a specific view of equality in a diversity statement. Or, to show support for Israel, the employer might exclude those who protest Israel’s existence.¹⁰⁴

This argument has several problems. The main difficulty is that employers have many ways to signal their commitment to values without undermining others’ integrity or exacerbating social problems. They can state their values directly and demonstrate how those values shape the firm. Excluding those with different values is not necessary to achieve the end. Another problem is that such exclusion may have the effect (or even be a pretext for) objectionable discrimination or corruption. For example, an employer might want to signal its commitment to equal treatment of women by refusing to hire abortion opponents. In doing so, it might discriminate against people based on their religion or pressure potential employees to hide their views.

Although most employers do not need ideological exclusion to protect their speech and associational interests, there are exceptions. These might include organizations dedicated to political, religious, artistic, and moral goals.¹⁰⁵ Religious organizations and those with creative goals already demand the right to discriminate in some contexts.¹⁰⁶ They would likely seek similar exemptions from any law forbidding employer exclusion based on speech. Indeed, Disney tried (unsuccessfully) to defend firing Gina Carano by invoking its speech rights.¹⁰⁷

Exceptions may be warranted for mission-driven organizations, such as political groups or charities. Non-profits and political organizations may need employees who share their aims. Some for-profit employers have similar needs. For example, specialist law firms, such as labor-side employment firms, may screen for lawyers who favor their preferred clients.

The appropriate scope of such exemptions is complex. However, such exceptions must be narrowly drawn to prevent expansive or pretextual use that undermines the benefits of laws restricting ideological employment exclusion.

To summarize this Part, employers seeking to avoid complicity with employees’ views and actions should stop employing people if doing so compromises their consciences. Asking others to accept an employer’s disdain for their deeply held commitments does not rely on reasons the disadvantaged party can accept. We should reject employers’ discomfort as a justification for denying jobs and instead encourage people to become comfortable working together despite moral and political divides. Moreover, other associational interests are not pressing for most employers, and employers can advance their speech interests without ideological employment denial. That said, there are exceptions to these conclusions. Mission-driven employers, for instance, should be allowed to deny employment in narrow circumstances to protect their speech and associational interests.

IV. Inadvertent Social Pressure and Employer Economic Interests

Some employers use ideological exclusions for economic reasons. In most cases, however, employers can achieve their economic goals without undermining employee integrity, chilling speech, or exacerbating polarization. Below, I illustrate this conclusion using three economic interests: customer and employee retention, workplace efficiency, and merit.

A. Customer and Employee Retention

Businesses worry about their reputations. Employers may prefer to exclude employees with unpopular views because they do not want others to think the employer shares those views or to associate those views with their businesses. Such associations could lead to lost customers or difficulty recruiting and retaining employees.

However, this attribution argument is usually unpersuasive. For low-level employees, especially in large companies, few observers will know their views, and fewer still will assume that an employer shares them. In part, this is endogenous (that is, the inference drawn will depend on the background rule). If the law forbids ideological hiring and firing (and people know about the law), observers will be less likely to presume that an employer shares their employees’ views. Conversely, if ideological hiring is permitted and becomes typical, observers will have more reason to assume that an employer shares an employee’s views. That said, for smaller firms or high-level employees, the non-attribution interest may be weightier.

A related concern is when employees, particularly celebrities, are part of the product sold. Customers might not care about the employer’s views, but they may be so displeased by the employee’s statements that they look elsewhere for goods and services. Although this concern is legitimate, the Netrebko example highlights the dangers of protecting it. Perhaps the Metropolitan Opera fired Netrebko because it feared losing ticket sales or donations. However, unless the law requires evidence of lost income, this justification can easily mask employer dismissals based on punishment, corruption, discomfort, or non-complicity. Indeed, opera fans continue to

patronize venues that hire Netrebko,¹⁰⁸ suggesting the Metropolitan Opera’s fears may have been unfounded.

B. Workplace Efficiency

Employers may worry that employees will be uncomfortable around coworkers with unpopular views. This might lead to workplace inefficiencies or difficulty recruiting and retaining employees.

One might be tempted to dismiss this claim by pointing to studies showing the benefits of workplace diversity. However, these studies are equivocal, suggesting both benefits to creativity and drawbacks to efficiency.¹⁰⁹ If hiring employees with unpopular views leads to workplace disputes and distrust, the efficiency costs might outweigh the creativity benefits of viewpoint diversity. Moreover, employers can achieve substantial viewpoint diversity (and thus creativity) while excluding people with extreme views.

Indeed, one scholar argues that we should allow employers to discriminate based on ideology to protect workers from the harms of political polarization. According to R. George Wright, polarization and pressure to take stands on public controversies have politicized our workplaces to the detriment of worker comfort and efficiency.¹¹⁰ Although Wright acknowledges that banning ideological exclusion might support a social consensus that workplaces are depoliticized spaces—as I urge—he notes that this optimistic forecast lacks solid empirical support.¹¹¹

Wright’s skepticism is fair. My suggestion that we use workplace integration to fortify society against polarization might not work. However, reducing polarization is too important to allow the metastasis of political isolation and disdain. Even if we cannot guarantee success, we should pursue strategies to encourage integration and combat polarization.

Concerns about workplace instability stemming from political opponents working together can be addressed through alternative means. People who disagree about politics and religion have successfully shared workplaces. Managers can support such cooperation by limiting political discussions in the workplace,¹¹² modeling respectful interaction, and avoiding corporate stances on political matters that show disdain for those who disagree.¹¹³ Despite limits on political discussions, coworkers will likely learn that others hold vastly different views and may recognize that their disagreements do not impede cooperation.

Employers might seek to exclude employees or potential employees if they believe their speech outside the workplace signals a higher risk of harmful workplace behavior, such as workplace harassment. For example, chanting “from the river to the sea” in a campus protest might be protected speech, assuming it did not target Jewish students for harassment, but chanting it at a Jewish coworker during working hours could be illegal harassment.

Yet employers need not screen employees’ speech outside the workplace to prevent harassment. Absent other information about an employee, there is little reason to assume that employees will behave in the workplace as they do online or in political protests, or that they will not follow workplace rules.¹¹⁴

C. Merit

Employers might prefer employees who do not use intemperate language or express extreme or reductionist views. Such employees might be more cooperative workers or more subtle, better-informed thinkers. In this regard, screening for employee speech resembles testing for personality, knowledge, or intelligence.¹¹⁵

However, employers can assess these qualities without examining employee speech. They can instead rely on personality tests, competence tests, grades, and references.¹¹⁶ These alternatives would not undermine employee integrity, chill speech, or exacerbate polarization. There are concerns that employees may lie on personality tests to secure jobs.¹¹⁷ Even so, there is inadequate evidence to suggest that social media screening is superior to personality tests in predicting employee quality, although, admittedly, social media screening might be less costly.¹¹⁸

Employers might respond that no single metric predicts employee success equally well for all workplaces. In the absence of settled science, they should be permitted to use the screening tools that seem most suitable to them. This argument has some appeal, because employers are right when they say it is hard to predict employee quality. However, it also has the potential to be abused. Employers might cite intemperate language as a pretext (or be unconsciously biased) and exclude views they dislike by labeling them intemperate or reductionist.

That said, some controversial employee speech may justify merit-based exclusion if it reveals a candidate to be unqualified for specific jobs. Job candidates who deny established scientific consensus may be unqualified for jobs that require scientific or policy expertise. Those who embrace conspiracy theories despite contrary evidence may be unqualified for jobs as journalists or educators. However, even this exception needs to be narrowly interpreted. Science denialists or conspiracy theory enthusiasts should not be disqualified for jobs unlikely to require scientific abilities or knowledge of public affairs.

Employee speech can sometimes render an employee unfit for their job. The speech might undermine the employee’s ability to accomplish core job functions. Examples include teachers who make public remarks that demean their students, thereby undermining the trust needed between students and teachers, or police officers whose remarks demean the citizens they serve.¹¹⁹

To summarize, most employers’ economic concerns can be addressed without ideological job denial. Employee speech will rarely be attributed to employers or undermine their profits. There are some exceptions, such as celebrities and corporate leaders, who are integral to their employers’ brands. However, permitting job denial in these cases must be approached with caution lest business reasons be used as pretexts for other goals. Workplace unrest stemming from varied employee views can be addressed through effective management. Finally, screening employee speech is unlikely to be the only, or even the best, way to ensure employee quality. Other indicia of merit can be used without chilling speech and fostering polarization.

V. Final Reflections

A. Do We Need Legal Regulation?

We create social pressure through speech, association, and spending. We criticize, boycott, shame, and shun one another while pursuing aims central to our lives. However, these tools can be misused to suppress speech and diversity, undermine efforts to live according to one’s values, and exacerbate polarization. I have argued that most ideological employment exclusion falls into the second category: employers abuse social pressure either to pursue illicit ends or to achieve reasonable goals that could be achieved in alternative ways.

Sometimes, when people misuse social pressure, the best solution is counterpressure; we criticize, boycott, shame, and shun those who abuse these social tools. However, in other cases, legal regulation of social pressure is more sensible, such as when social pressure is used against the powerless, when mobs employ social pressure, or when pressure and counterpressure threaten to become a vicious cycle of revenge.

Legal tools are difficult to implement when people use social pressure for both valuable and illicit ends that are hard to distinguish.¹²⁰ However, if my arguments are correct, employment exclusion is rarely needed to pursue legitimate ends. Additionally, polarization and the targeting of unpopular views suggest that social counterpressure and self-restraint will fail as solutions. Thus, a regulatory solution likely makes sense.¹²¹ Legal rules governing social pressure can mitigate some of its downsides, helping to focus that pressure on cases where it causes less harm.

Admittedly, legal rules alone cannot prevent ideological employment denial. We must also build a social consensus against ideological job denial and in favor of free speech and cooperation across ideological lines. Employment laws are notoriously difficult to enforce, especially when

applied to hiring. Nevertheless, employment laws can provide occasional remedies and help shape this social consensus over time.

B. Moral Uses of Social Pressure

This Article began by asking what uses of social pressure are morally permissible and whether we can resolve Mill’s concern that social pressure might serve valuable ends while also censoring ideas, undermining integrity, and inducing unnecessary conformity. The tension Mill identified cannot be eliminated; social pressure, which is often a byproduct of rightly protected activities, sometimes threatens other people’s freedom. However, we can mitigate concerns about censorship, integrity, and conformity by protecting valuable uses of social pressure that cannot be pursued without risk to others and by discouraging uses in two kinds of cases: when social pressure is used for illicit ends and when it is used for legitimate goals that can be pursued in less harmful ways. Such social restraint requires institutions that fairly allocate opportunities for living authentically. They might help us avoid social pressure that needlessly curtails public debate and exacerbates polarization. They can also be alert to the possibility that social pressure will be used against people with limited power, inequitably allocating opportunities for integrity and suppressing speech necessary for emancipatory social movements.

Identifying legitimate uses of social pressure is easier when we recognize that it falls into several categories. One category of social pressure arises from its intentional use to change other people’s behavior. This pressure is permissible if it is not pursued to corrupt others or unjustly punish them. For example, we can try to change others’ behavior when they act carelessly or out of self-interest. We can shame ill-mannered strangers and shirking friends, or boycott companies that pay their workers too little. Such efforts do not corrupt their targets because the targets do not aim to exclude financial gain or personal reputation from their decisions. However, intentionally using social pressure becomes problematic when it disrespects targets by offering financial incentives to violate moral commitments, such as boycotting a merchant to deter it from donating to a charity or refusing to hire college students to deter their political speech.

Social pressure is also problematic when used to punish speech. Social penalties are often directed against those whose values we dislike, people whose speech is ambiguous, or those who offend us but have done no wrong. Even when we penalize wrongful speech, such as hate speech, we risk its further use in less straightforward cases, punishing the innocent and exacerbating tensions over culture war issues. In our pluralistic and increasingly polarized society, social penalties for speech should be avoided unless we find ways to restrict them to clearly culpable speech.

A second category of social pressure that undermines integrity arises as an unintended effect of actions taken while pursuing other, often valuable, goals. The reasons for imposing unintended social pressure can be central to the integrity of the person imposing that pressure and cannot be pursued otherwise. An example is refusing to befriend someone whose values I abhor. Friendship requires affection and admiration. So, the good of friendship cannot be pursued without risking the integrity of excluded people.

However, social pressure is inappropriate when the goals pursued are illicit and when we do not fairly distribute opportunities for living authentically. Sometimes, the interest pursued when imposing such risks is illicit. I argued that we should treat non-complicity as an illicit reason for employment denial. This is partly because it disrespectfully relies on reasons that undermine self-respect and partly because employers can avoid complicity without discriminating. Even when employers have good reasons for ideological exclusion, such as protecting speech and associational interests or advancing economic goals like profit and employee retention, most employers can adequately advance those goals through other means. We should insist they use those means because ideological job denial threatens to chill speech and exacerbate polarization. Moreover, because jobs are central to thriving in our society, social pressure created through job denial is often difficult to resist.

These ideas do not solve all the difficulties raised by Mill’s puzzle (and might not appeal to Mill). But they suggest some solutions.

C. Revisiting the Examples

The paper began with examples: job denials based on speech about Zionism, sex, and gender; the refusal to condemn Vladimir Putin; political comments about Trump and Charlie Kirk; membership in a racist political party; and perceived affiliation with the Communist Party. I asked what was wrong with these exclusions and whether they differed from doxing and shaming sexual harassers during the #MeToo era.

Boycotting anti-Zionist students is corrupting, seeking to entice them to abandon their principles for money. It also seeks to punish people who might not be wrongdoers. Even if you think they are wrongdoers, the boycott embraces norms that might spread to punish non-culpable people and undermine cooperation. Similar arguments condemn the firing of Gina Carano, Anna Netrebko, the British National Party employee, and those who celebrated Charlie Kirk’s death or criticized him after he was killed.

The #MeToo movement was different. Sexual harassers deserve to be punished, and legal rules specifying what constitutes harassment help limit the punishment to wrongful harassers. Moreover, because sexual harassment likely does not represent the deeply held views of harassers, it does not threaten integrity, speech, or polarization in the same way as ideological employment exclusion.

The arguments marshaled against these examples do not apply to employers who have good reasons for ideological employment denial that cannot be pursued in other ways. Organizations devoted to specific missions are the most obvious.

D. But What About the Nazis?

Some readers might think we should generally disallow ideological employment denial, but we should allow employers to exclude people who express hatred toward groups based on race, religion, and sex. They might contend that all my arguments lose force when applied to people who express hate. Such individuals do not deserve respect, so we do not owe them restraint from corrupt pressures or protection from insulting demands for non-complicity. They deserve punishment, so we should feel free to harm them through job denial for their culpable speech. Their presence in the workplace will likely undermine efforts to foster respect and cooperation through workplace integration. They will likely tarnish employer reputations and mistreat coworkers, which provides employers with sound moral and business reasons to exclude them.

This position, embraced in much of Europe, has evident attractions. However, we should resist it for several reasons, especially in the U.S. First, I disagree with the claim that we can withhold respectful cooperation from people with unreasonable views. We need not offer them reasons they can accept if they are unwilling to seek reasonable terms of cooperation. However, we must still respect their rights and cooperate with them on terms a reasonable person can accept.¹²² We fail to respect their rights and cooperate if we try to corrupt them or demand that they accept denigrating reasons for our actions.

Second, as noted above, we should not trust employers or the government to pick which views are so heinous that we will punish their expression through employment discrimination. The likely targets will not just be Nazis (and might not even include them). If progressives are in power, those punished might include people who oppose abortion rights or same-sex marriage or who embrace traditional roles for women. If the right is in power, targets might include people who favor abortion rights, gender-affirming care for transgender children, or anything related to DEI. If power is divided, we may see a patchwork of protections in red and blue states, creating even more incentives for residential segregation by ideology, mutual distrust, and social pressure used as a tool for retaliation. Moreover, it is unclear whether punishing purveyors of hate is the most effective way to combat its spread. It might merely fuel such movements’ feelings of isolation and persecution.

Third, as noted earlier, a law banning employment exclusion based on ideology for everyone except Nazis (or hate speech, or harmful speech, however defined) would likely be unconstitutional in the U.S. If so, we must choose between offering no protection against ideological employment denial and offering protection that extends to Nazis. Vulnerable people who hold views that we should respect far outnumber people with hate-based views. We should protect them even at the cost of helping a few Nazis.

Finally, people can work cooperatively even knowing that some of their coworkers hold views that express contempt for their values. We work with people whose religious views include predicting our eternal damnation, who believe our attitudes toward abortion condone murder or oppression, who think our views about merit show us to be racists, and who think we recently voted for a tyrant. Justices Scalia and Ginsburg worked together and formed a friendship, even though his religion might have characterized her as having spent a career supporting the murder of babies. At the same time, her feminist commitments might have portrayed him as devoted to ideals that oppress women. We should not presume that some subset of people with views we find most hateful will misbehave or undermine efforts at peaceful coexistence, or that we cannot find ways to coexist in proximity. Rather than assume cooperation is impossible, we should try working together.

99 S. Cal. L. Rev. 1

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Scott Altman*

*Virginia S. & Fred H. Bice Professor of Law, University of Southern California Gould School of Law. For helpful comments, I thank Catherine Fisk, Felipe Jimenez, Greg Keating, Dan Klerman, George Letsas, Erin Miller, Alain Pottage, Marcela Prieto, Daria Roithmayr, Irit Samet, Mike Selmi, Amy Sepinwall, Mike Simkovic, Danny Sokol, Raphaële Xenidis, and participants at the Sciences Po Law School Faculty Colloquium.

Systemic Absolution

January 2026January 2026Shima Baradaran Baughman*

Introduction

Ancient religious tradition forms the bedrock foundation for the prevailing approach to criminal punishment. American criminal penal statutes are steeped in retributivism, which at its core requires punishment proportional to the crime committed—in other words, the Old Testament, lex talionis, or “an eye for an eye.”¹ Modern criminal statutes and prisons are largely set up to punish offenders who harm someone proportionate to the harm they caused, as determined by the legislature, often through incapacitation rather than corporal punishment.² Traditionally, corporal punishment was inflicted on the offender in proportion to the crime the person had committed.³ Historically, however, criminal tradition also involved a community coming together periodically to wipe the slate clean of crime, typically with a ritual involving a sacrifice.⁴ It was important for the community to join together to punish a person who committed a crime, so they would publicly gather to witness corporal punishment for individuals who committed serious crimes.⁵ But equally important was a communal ritual that periodically allowed society to collectively absolve itself of crime.⁶

This concept is one referred to here as systemic absolution, where society periodically and systematically cleanses or atones itself of the burdens of crime, offers forgiveness for offenders who have been punished, and allows the community to be reunified. Robin Steinberg, a prominent legal activist and founder of The Bail Project, based a wrongful conviction defense on an ancient Jewish scapegoat ritual symbolizing atonement.⁷ She explained that in Leviticus, a book in the Old Testament, “members of a community gather[ed] their sins and load[ed] them on the back of a goat. They then sen[t] the goat out into the desert, hoping to alleviate themselves of the burden and guilt of their failures.”⁸ Steinberg analogized to this ancient practice to instruct the jury that thousands of years ago, there existed a means for people to be freed of their crimes, hoping to “undo some hardwired biases and tap into the jurors’ sense of injustice.”⁹ This ritual allowed society to sacrifice one goat and allow all debts and crimes to be forgiven. Steinberg challenged the jurors to determine as representatives of the community that they were willing to shed the weight of a woman’s former conviction and allow her defendant to go free. This discussion of atonement and ancient Jewish ritual successfully won over a criminal jury, but its application might not be limited to a closing argument at trial. The modern corollary to the scapegoat ritual is the holy Yom Kippur Day of Atonement where, once a year, Jews collectively release the sins from the past year and ask for forgiveness to wipe the slate clean.¹⁰ Other cultural traditions incorporate the idea of atonement or tabula rasa, wiping the slate clean with periodic repentance and group sacrament rituals.¹¹ While criminal punishment today is loosely based on Law of Moses principles,¹² what is missing beyond punishment is a path towards systemic absolution.

Common in the Catholic faith, absolution is a term associated with forgiveness, or removing the weight of sin or crime.¹³ A person approaches a priest for absolution from a sin, and after prayer and repentance a person receives forgiveness from God for that sin.¹⁴ The absolution considered here is not a religious one but a systemic one, where society provides a formal release from punishment, offering relief to the person receiving it. While the concept of absolution has never been used in criminal law, criminal law has largely conceptualized punishment using religious philosophy. While there are some semblances of forgiveness in existence in modern criminal law, including clemency and pardons, they are used sparingly as political tools at the end of a presidential term to benefit select individuals, not having large-scale impact on many criminal defendants.¹⁵ Historically, though, criminal punishment and accountability have typically been accompanied by the concept of societal forgiveness, or absolution.¹⁶ Indeed, many cultures have had practices for both punishing and absolving people of crimes. Like under ancient Jewish law, corporal punishment was common when a crime or sin was discovered, but the scapegoat ritual periodically eliminated sin and crime, allowing reconciliation of the community.¹⁷ While many cultural traditions have provided a way for the community to absolve former crimes, there is no longer any societal mechanism to absolve society of crime.

While forgiveness and absolution have always existed privately for citizens and have even been used in limited ways by the executive branch, these concepts have not been conceptualized in broader structural ways. Since the 1500s, common law systems of criminal justice have had a prosecutor represent the “State” or “King” and bring crimes against it to court.¹⁸ The modern criminal justice system similarly considers any crime committed against an individual as a crime against the entire state.¹⁹ As such, an individual never decides to “charge” a case.²⁰ Rather, this decision is left to the discretion of the prosecutor who enacts justice for acts against the community or state.²¹ While our system of justice is based on what is best for society, our system of forgiveness or absolution is one considered only at the individual level (apart from dealing with criminal behavior), not collectively or systemically. An individual harmed by a crime may have the State bring his case to justice, but forgiveness of the crime only includes participation of the victim and the defendant.²² Restorative justice depends on both the victim and offender being willing and responsive to a process of unification and healing, which is not always the case. But the burdens of crime and incarceration are experienced not just by the victim and defendant, but by the community and society at large. And while restorative justice principles that bring the two together to resolve their conflict have yielded promising results, there has been no consideration of how to absolve crime from society structurally.²³

To date, few legal scholars have considered the role that forgiveness, or absolution, should play in criminal law. A few notable scholars have recognized that forgiveness can play a role between victims of crime and perpetrators in civil society.²⁴ The leading legal expert on forgiveness, Martha Minow, has encouraged expanded forgiveness in the law generally, which could strengthen faith in law and offer “wrongdoers a fresh start . . . [by] wiping the slate clean.”²⁵ Minow documents forgiveness as an important tool for international crimes, in bankruptcy practice, and with amnesties and criminal pardons.²⁶ Judge Stephanos Bibas has also encouraged a role for individual forgiveness but states that “forgiveness and mercy do not square easily with a state-centered system of criminal justice.”²⁷ Forgiveness in the law has taken various forms, such as altered or reduced consequences for wrongdoing, the use of discretion by legal officials,²⁸ judges choosing leniency,²⁹ and voluntary expressions of apology and forgiveness.³⁰ Individually, restorative justice interventions like financial restitution, community service or family group conferencing,³¹ or executive pardons,³² have all played a role in individual cases to prioritize restoration over punishment. Despite some small notable successes in individual forgiveness between victims and perpetrators,³³ these examples remain few and far between. And there is no one who has provided theoretical or historical backing for a doctrine of systemic absolution—a path for society to periodically eliminate the burden of crime. Though elements of forgiveness exist in criminal law, they operate individually, focusing on the individual offender and their crimes rather than broader systemic absolution that likely involves structural change.

At the same time, the U.S. criminal justice system has a reputation for being particularly punitive, as this nation is the most carceral nation in the history of humanity.³⁴ The American system of criminal justice is infamously harsher than any other in the world.³⁵ Mass incarceration is a societal menace that many have tried to address, and without significant change, it is inevitable for the foreseeable future.³⁶ Punishment theory is vigorous in U.S. statutory and legal practice, but there has not been an exploration of a societal absolution of crime as a tool in dismantling our carceral system. It would not be foreign to borrow principles from religion to learn how to better handle crime, as crime and sin have been intertwined historically; for example, adultery and sodomy were crimes until very recently.³⁷ Our communities also carry a heavy social, familial, and racial burden as a result of mass incarceration, so the time is ripe for deeper structural inquiry into the practice of systemic absolution.³⁸

This Article is the first to consider whether systemic absolution can be considered as the foil for the dominant punishment theory of retributivism, allowing punishment to be followed by a path to societal atonement through structural change. It considers whether historical communal forgiveness practices might guide modern criminal practice to expand structural forgiveness for society at large. As considered here, systemic absolution is forgiveness of crimes on a broader scale focused on societal restoration after crime, apart from the individual forgiveness that might involve singular victims and offenders. It is focused more on fostering societal renewal rather than renewal of any individual. After considering the existing forms of individual forgiveness in the criminal justice system, this Article explores the role of systemic absolution and whether any modern mechanisms could reenvision criminal justice to allow for large-scale restoration after crime. This Article considers three avenues: automatic periodic expungement, periodic sentencing reduction, and deferred adjudication. There is historical precedent for systemic forgiveness practices, which have been applied to create bankruptcy law to allow people who go into debt to avoid prisons and be reintegrated into the business community.³⁹ With systemic absolution, it might be possible to reduce mass incarceration through periodic automatic expungement of a criminal record, similar to a release of debts in bankruptcy. Recently, federal legislation has reduced sentences broadly for certain drug offenders or incarcerated individuals above the age of sixty,⁴⁰ both structural efforts to reduce incarceration, allowing society to absolve defendants of crime broadly. And finally, deferred adjudication is happening across the country where prosecutors choose to “defer” prosecution in certain cases; if the defendant complies with certain conditions, after a certain period the state will drop the case altogether. Expanding this practice and making it a default for many crimes would allow many to change and abandon crime without maintaining a criminal record. All these efforts are examples of what I would call “systemic absolution.”

Because this is the first Article exploring systemic absolution, much of this Article is exploratory, conceptualizing the virtue of forgiveness in the criminal arena, and laying the theoretical backing and historical precedent for applying systemic absolution more broadly. As such, this Article does not provide any one prescription for how to execute absolution in modern society, but it does review the places where forgiveness plays a role in criminal justice and considers structural expansion. First, with forgiveness as the bedrock principle underlying systemic absolution, Part I of this Article provides a general consideration of the impact of forgiveness on individual outcomes. It also outlines the arguments in favor and against the adoption of broader systemic forgiveness in criminal law. Part II of this Article sets forth the history of communal absolution in ancient religion and society and its potential application to cleanse the societal slate of former crimes. Part III contextualizes a new theory of systemic absolution: the broadly accepted (though rarely adopted) forgiveness practices already existing with constitutional and statutory backing, including clemency, pardons, and expungements. The nature of this Article is exploratory and, while it does not provide a prescription for adopting systemic absolution, Part IV of this Article briefly considers how the justice system could consider systemic absolution in three areas: statutory sentencing relief, automatic expungement, and deferred adjudication, which might alleviate America’s endemic incarceration problem.

I. Conceptualizing Forgiveness in Criminal Justice

Forgiveness is best conceptualized as a conscious decision to give up a legitimate grievance against one who has caused harm.⁴¹ It is less about foregoing punishment, and more about eliminating “resentment and blame.”⁴² Forgiveness has traditionally been conceptualized as an individual matter between a victim and offender, considering the victim as the only one who can forgive. Many have analyzed the relationship between criminal offenders, their victims, and their affected communities.⁴³ But crimes can also be conceptualized as an offense against society itself—which is why the state takes on the prosecution. Under this framework, there is also an opportunity (and responsibility) for society to forgive criminal offenders through structural change. An absolution framework can provide broader structural solutions to alleviate the incarceration crisis along with communal burdens caused by crime.

Forgiveness at the victim level has real benefits both for the offenders and the victims themselves. Admitting guilt and moving on may lighten the “burden of guilt” for offenders, helping them in the next phase of their lives.⁴⁴ And victims are able to choose whether they let go of anger, grief, or sorrow. This can help them heal. And providing victims the choice to forgive or to not can empower them and help them regain a sense of agency after being harmed.⁴⁵ Policies that help the offender make amends and right the wrong and give space for the victims to choose to forgive promote this principle.

While individual forgiveness is critical, a consideration that has been missing in public dialogue is how to incorporate absolution into the structure of criminal justice. The American criminal justice system, known to be overly punitive, focuses on harshly punishing a few offenders who are caught. Policies that add to a retributive paradigm—that allow a path towards absolution—help a society relinquish a legitimate grievance and choose leniency when appropriate or allow redemption after punishment. Before shifting to collective forgiveness or absolution, Part I.A. considers more carefully the definition of forgiveness as well as the impacts of individual forgiveness, including the health and physical benefits. Part I.B considers arguments in favor of and against using the principle of forgiveness in criminal justice policy.

A. Individual Forgiveness in Criminal Justice

Providing a working definition of individual forgiveness, as opposed to societal or systemic forgiveness, lays a groundwork for later exploration of systemic absolution. Forgiveness involves “letting go of negative affect and motivations toward revenge or retaliation, despite an entitlement to such feelings.”⁴⁶ The repentance of the offender often encourages forgiveness, but is not a requirement for the victim to forgive.⁴⁷ For the victim, forgiveness requires forswearing revenge, moderating resentment, committing to letting go of lingering resentment, revisioning the wrongdoer, reframing one’s view of self, and communicating to the offender that forgiveness is granted.⁴⁸ The act of forgiveness does not necessarily make the crime go away in the victim’s eyes, but can allow them to see the perpetrator as a human and allow the victim and offender the possibility of creating a relationship.⁴⁹ While the law primarily seeks to adjudicate the past, forgiveness is forward-looking, and enlarges future possibilities.⁵⁰ Forgiveness should not be confused with acts that merely reduce animus, such as letting go, forbearance, or turning the issue over to God.⁵¹ Moreover, forgiveness is distinguishable from other responses to wrongdoing such as justification, excuse, mercy, and reconciliation.⁵² Forgiveness does not justify the conduct, does not excuse the wrongdoer as somehow not fully responsible, is more personal than mercy, and stands wholly apart from reconciliation. The distinction between systemic forgiveness and reconciliation or mercy is important. For systemic absolution of crime, there is no requirement that individual offenders are remorseful, that victim and perpetrator have reconciled, and it does not remove the role of punishment. Absolution, or forgiveness, plays a unique role in cleaning the slate for society of the burden of crime.

Studies demonstrate that individual forgiveness provides a multitude of psychological, physiological, and social benefits: reduced negative emotions, improved mental health, lower stress responses, less physical pain, and better relationships.⁵³ Evidence links forgiveness to overall better physical health.⁵⁴ Researchers believe that the physiological stress response of interpersonal conflict strains our health systems, but forgiving an offender breaks the cycle of negative thoughts and stress, thereby improving various indicators of health.⁵⁵ Perhaps most importantly, forgiveness is associated with greater happiness.⁵⁶ While there are clear health benefits to forgiveness, the adverse health consequences of unforgiveness may be more substantial.⁵⁷ But the individual harms of unforgiveness can be experienced by society, particularly within communities affected most by crime and incarceration. Moreover, while societal happiness is difficult to measure, systemic absolution might have some broader healing benefits.

B. Should Forgiveness Have a Role in Criminal Justice?

Despite the benefits of forgiveness, some scholars suggest that forgiveness may have no place in criminal law. Some believe forgiveness may be inappropriate in cases of remorseless offenders, victimless crimes, victims unwilling to forgive, or where there is disagreement among victims in multi-victim crimes.⁵⁸ Because forgiveness cannot be forced, forgiving individual offenders may also introduce dangers of inequality and discrimination, because victims and society may be less willing to forgive people of certain races or of certain socioeconomic status.⁵⁹ Moreover, some may argue that forgiveness does not serve the traditional justifications for punishment—undercutting retribution and deterrence.⁶⁰ Forgiveness of an offense can increase the likelihood of abuse and repetition of transgressions, for instance in domestic violence situations.⁶¹ Some feel that it is safer to err on the side of tough and inflexible punishment because the benefits from incarceration are immediate, certain, and concrete, while the benefits of forgiveness are “longer-term, squishier, and more speculative.”⁶²

On the other hand, scholars like Martha Minow have suggested that the U.S. should consider a more liberal use of “forgiveness mechanisms” in the criminal justice system.⁶³ Minow makes clear that she is not advocating for an elimination of punishment. In fact, the idea that wrongdoing deserves and requires punishment seems to be a universal and fundamental belief, accepted across history and human civilizations, and even evident in very young children and animals.⁶⁴ All attempts at establishing no-punishment communes have failed, or have only survived by adopting enforcement systems.⁶⁵ Communities absent of law, such as gold rush camps or concentration camps, typically adopted their own vigilante systems or practiced prisoner justice, exemplifying our natural inclination towards punishment.⁶⁶ Minow acknowledges that some wrongs may seem unforgivable, and to advocate for forgiveness for genocides and murders “can seem an insult to both victims and survivors.”⁶⁷ Indeed, one study found that offenders who commit high-severity crimes are perceived as unlikely to be rehabilitated.⁶⁸

Despite these findings, Minow argues that making greater use of forgiveness mechanisms is an important part of criminal justice and can help alleviate our country’s mass incarceration problem.⁶⁹ Minow argues that lawyers and other officials “do not adequately use the tools of forgiveness” in criminal law and argues for their expansion.⁷⁰ Forgiveness in criminal law could shift away from the narrow focus on a specific violator and victim to a wider lens that looks at broader patterns to increase fairness for all.⁷¹ She advocates for potentially expanding existing practices like apology, restitution, and forbearance from the law’s most stringent demands.⁷² It might be time to reinvent criminal law as many criminal law systems have lost credibility with their communities due to their reputation for harshness⁷³ and their uneven application of justice.⁷⁴ Introducing mechanisms of forgiveness more broadly into criminal law could help combat unfairly harsh laws or overly punitive prosecutors.⁷⁵ Forgiveness encourages the full reintegration of a convicted person into society, alleviating the collateral consequences and stigma of conviction.⁷⁶ Moreover, forgiveness may have broader benefits that allow greater healing not just for the offender or victim, but for the community in general.⁷⁷ Systemic absolution could create similar benefits as individual forgiveness if it were accepted into criminal practice. The dominant theory of punishment is retributivism, which includes little in the way of absolution of crime, rehabilitation, or a structural path towards clearing the slate of crime. The next Section provides background on the historical importance of individual and communal absolution to contextualize forgiveness as an important societal practice, which aids in creating a comprehensive criminal punishment theory that includes absolution.

II. Individual Forgiveness and Communal Absolution in Religious Tradition

Religious principles have always influenced criminal punishment theory.⁷⁸ Covenant principles⁷⁹ form the roots of the leading criminal punishment theory (retributivism) and dominate criminal philosophy, criminal statutory principles, and even prison administration.⁸⁰ In simple terms, retributivism requires that a person be punished proportionately given the exact nature or harm of their crimes—a figurative eye for an eye, at least in value.⁸¹ It is not until after an offender has been punished appropriately for their crime that they should be released.⁸² Criminal statutory practice and punishment are dominated by desert and punishment without an avenue for societal forgiveness or growth. The absolution theory proposed here has its roots in religious traditions that create a more unified community through cleansing society of wrongs.⁸³ Restorative justice has its place and can be extremely effective when both parties are inclined towards a resolution, but this often is not the case. In many cases, one side would like to make amends, but the other side is unwilling. But since crimes are committed against society, could there be systemic absolution to restore society after harm is caused?

Forgiveness traces its roots back to influential world religions. Forgiveness considers restoring relationships after sin or crime and is a fundamental part of all major religions. These individual traditions of forgiveness provide a foundation for considering communal forgiveness or absolution as discussed in Part II.A. Then, Part II.B considers absolution in religious contexts and considers its application to criminal justice.

A. Individual Forgiveness in World Religions

There are foundational teachings about forgiveness in all the world religions, but this Section provides a very brief overview of these teachings in Christianity, Islam, Judaism, and Hinduism as they pertain to forgiving crime. This Section focuses on individual forgiveness, or receiving forgiveness from God for wrongs committed.

The concept of forgiveness might be most central to Christianity.⁸⁴ Instances of forgiveness are plentiful in the New Testament, from the forgiveness of the adulterous woman, the prodigal son parable, the Sermon on the Mount, the Lord’s Prayer, and Jesus’s forgiveness of those who crucified Him.⁸⁵ As it relates to forgiving criminal offenses, Jesus Christ specifically says to the criminal defendant hanging next to him on the cross, “[t]o day shalt thou be with me in paradise,” insinuating that forgiveness is possible even for criminals and potentially even beyond the grave.⁸⁶ Christian rituals, such as baptism and Holy Communion, are fundamentally rooted in individual forgiveness.⁸⁷ Christianity often urges that forgiveness must be offered unconditionally, as an act of grace, and without regard to the punishment or remorse of the offender, which may seem irreconcilable with conceptions of retributivism.⁸⁸ Christian forgiveness is predicated on the unconditionality of God’s love, and this kind of unconditional forgiveness serves as an ideal in the life of the believer.⁸⁹ Although Jesus preached that people should repent, Christian forgiveness requires forgiving even the unrepentant.⁹⁰ While some argue that the New Testament presents forgiveness as a desirable virtue but not a mandatory duty,⁹¹ forgiveness, including of crimes, is a key part of an individual’s journey to becoming more like Jesus Christ.

Islam views forgiveness as an important virtue practiced by the Prophet Mohammed that Muslims should emulate.⁹² The Prophet Mohammad teaches by example to seek God’s forgiveness three times after completing his prayer,⁹³ and he specifically asks for forgiveness for his enemies.⁹⁴ However, Islam does not advocate for unconditional or absolute forgiveness, and does not require forgiveness before justice or punitive measures are implemented.⁹⁵ The Quran explains that divine forgiveness is possible even for serious offenses, but an offender should never take forgiveness for granted even if he expresses repentance because it is a decision for Allah.⁹⁶ However, Islamic texts emphasize that interpersonal forgiveness is more virtuous than vengeance, even if retaliation is permissible under the circumstances.⁹⁷ A study of the motivations to forgive among Moroccan Muslims found that their religious values were their primary motivation to forgive others.⁹⁸ In Islam, tawba is the repentance process,⁹⁹ in which an individual feels guilt about past sins, engages in righteous acts that the sin prevented them from doing, recompenses those that they wronged, asks forgiveness of those that they wronged, resolves to avoid the sin in future, and continues in obedience to God.¹⁰⁰ The tawba is reminiscent of restorative justice principles currently in place in criminal policy, and the focus on the Prophet’s forgiveness of enemies is reminiscent of the Christian dictates to forgive all. A foundational virtue in Islam is forgiveness—though not mandated, it is highly admired if a person can forgive someone for a crime committed against them.¹⁰¹

Judaism places emphasis on individual forgiveness, repentance, and atonement, and is particularly influential when it comes to retributivism, which continues to dominate criminal punishment theory.¹⁰² Every year, ten days are set aside between Rosh Hashanah and Yom Kippur, or Day of Atonement, to repent.¹⁰³ This period is called teshuva (meaning return).¹⁰⁴ During this period, Jews ask forgiveness of others and engage in acts of service.¹⁰⁵ On the Day of Atonement, Jews ask God for forgiveness in prayer, sometimes in synagogue.¹⁰⁶ The Mishnah, or oral Torah, recognizes that an injury to another person results in two harms: a material harm, which is rectified through monetary compensation; and a more intangible injury, which can be remedied only through seeking forgiveness.¹⁰⁷ In Judaism, teshuva is the process of making amends; it includes a full return to the right path, and restoration of good standing with the community and with God.¹⁰⁸ The concept of return means that the sinner abandons his sin, removes it from his thoughts, resolves to not do it anymore, expresses remorse for the transgression, and makes an oral confession and apology.¹⁰⁹ After the offender undergoes the process of return, the victim is required to forgive, even when the wrong can never be fully righted.¹¹⁰ A victim may choose to forgive even without the offender’s repentance but is not obligated to do so in Jewish tradition.¹¹¹ Judaism does not definitively resolve the issue of whether certain individuals do not deserve forgiveness, but it does emphasize the belief that people can change for the better and must be given the opportunity to do so.¹¹² The Jewish faith also includes rituals of communal absolution discussed in the next Section which will allow us to consider these principles in how they might create a more comprehensive criminal justice policy that includes not just retribution but also atonement.

Other religious traditions, Hinduism and Buddhism, include foundational teachings in forgiveness. Buddhism handles forgiveness through ritual confession.¹¹³ Because the end goal of Buddhists is the cultivation of inner peace and enlightenment,¹¹⁴ the purpose of confession and forgiveness is to develop personal virtues such as responsibility and patience.¹¹⁵ Buddhism also upholds a model of forgiveness in its call to relinquish bitterness and resentments.¹¹⁶ One of the six perfections of Buddhism, forbearance or patience, corresponds closely to forgiveness and represents “a virtuous response to harm brought upon oneself by the conduct of another.”¹¹⁷ In the Dhammapada, the Buddha warns against hostility and advises that “[h]atred is never appeased by hatred in this world. By non-hatred alone is hatred appeased.”¹¹⁸ Similarly, Hinduism’s sacred texts describe multiple incidents of divine forgiveness.¹¹⁹ The Mahabharata, one of two Sanskrit epics revered in Hinduism, even features an important “hymn of forgiveness.”¹²⁰ The scripture further recommends forgiveness (ksama in Sanskrit) as one of several “divine qualities” to which a spiritually-minded person should aspire.¹²¹ Both Buddhism and Hinduism focus on the importance of forgiveness as a divine virtue to cultivate, even for those who harm you.

Christianity places the strongest emphasis on forgiveness, teaching unconditional forgiveness even in the absence of remorse and reparation.¹²² Judaism commends forgiveness, but focuses on the conduct of the wrongdoer who must make amends to earn forgiveness.¹²³ Islam commends unconditional forgiveness as virtuous, but does not require it.¹²⁴ Buddhism and Hinduism both elevate forgiveness as a divine trait. While principles of forgiveness are important in many key world religions, the concepts of individual absolution through a neutral person, like a priest, or community absolution are found in Christianity as described below.

B. Christian Individual Absolution

To better theorize criminal punishment and absolution, a greater understanding of the religious doctrines of absolution is instructive. The word “absolution” comes from the Latin absolutus, which means to “set free,”¹²⁵ and the concept of absolution is fundamental to various Christian faiths. Absolution in the religious context involves a neutral party offering forgiveness, which is not focused between a victim and offender, or a victim and God like in many other faiths. In Catholicism, priests grant absolution, or forgiveness, to the penitent as outside observers providing forgiveness for a wrong.¹²⁶ This concept is called the “sacrament of Penance,” one of the seven sacraments of the Catholic faith.¹²⁷ Catholics believe that, upon receiving this sacrament, they are free from mortal guilt and eternal punishment.¹²⁸ In this process, church members confess their sins to the priest, and the priest then absolves the person from their sins “in the name of the Father, and of the Son, and of the Holy Spirit.”¹²⁹ In an absolution rite, a priest is a proxy for God allowing a person to be forgiven for a wrong.¹³⁰ The first step in a system of absolution involves allowing a neutral party to provide absolution—a person unaffected by the crime who assists in the atonement process.

Absolution, in the religious context, allows an individual to have wrongs removed from their life so that they can move forward, reconciled with God and their community. Part II.C defines and discusses the concept of communal absolution of sin or crime in world religions.

C. Communal Absolution in World Religions

Many world religions rely on forgiveness and mercy towards transgressors as a foundational value.¹³¹ Communal absolution describes when a group of people are unburdened of crime or sin and has its roots in the world’s largest religions.¹³² This Section defines a new concept, “communal absolution,” which considers cleansing and reunification with society after a defendant is held accountable for a crime. Communal absolution—as defined here—considers crime as an act that afflicts a community and considers a societal forgiveness and letting go of the crimes that have afflicted some of its members. This is a precursor to “systemic absolution,” discussed in Parts III and IV, which is applicable to a society that has grown more complex and could serve as the modern corollary to communal absolution.¹³³ This Section considers communal absolution practices important to understanding the religio-cultural backgrounds existing for crime.

While this emphasis on individual repentance and forgiveness is highly influential in many faiths, the communal cleansing and atonement rituals that have existed in many faiths historically provide parallels for communal absolution. For instance, in the Catholic and Lutheran faiths, priests are permitted to perform “general absolution” to groups of people in emergency circumstances in which individual, private confession would be impossible.¹³⁴ These, along with ancient cleansing rituals, provide the groundwork for considering communal absolution of crime today. Understanding communal absolution opens the door for creating a comprehensive criminal theory that considers reunification, or cleansing after crime.

Communal Cleansing Rituals

Various ancient Near Eastern societies participated in community cleansing rituals in which freeing animals into the wilderness marked the absolution of crimes or purification of a community, as precursors for the Jewish scapegoat ritual.¹³⁵ The exact origins of these rituals are contested among Ancient Near Eastern scholars, but the earliest of this type of rite was likely performed in Ebla (now Syria) in the 24th century BCE.¹³⁶ The Eblaite ritual took place before a wedding, when the house was purified by putting the imperfections of the home on a goat and sending it away: “We purify the mausoleum before the entrance of (the Gods) Kura and Barama. A goat, a silver bracelet (hanging from) its neck, towards the steppe of Alini we let it go.”¹³⁷ Similarly, the Hittite people performed a ritual that involved sending away a ram to purify a community.¹³⁸ Like the goat that was sent away in the Eblaite ritual, here a ram was “sent away to the land of the enemies and offered to the hostile deity who caused the pestilence.”¹³⁹ There are several other Ancient Near Eastern societies who also performed similar rituals with animals being sent away to cleanse a community.¹⁴⁰

Likely drawing from earlier societies, the ancient Israelites started performing a ritual that is described in the Bible and has come to be more commonly known as the “scapegoat” ritual. Performed in preparation for Yom Kippur, this ritual is explained in the book of Leviticus, where Aaron cast lots over two goats: one that will be sacrificed, and one that carries the sins of the community into the wilderness.¹⁴¹ The name Azazel is given to the goat that is sent away.¹⁴² To transfer the sins, Aaron laid his hands on the goat’s head and “transfer[red] the transgressions of the Israelites to it,” so the Israelites could “openly and honestly hav[e] the goat remove their[] [sins].”¹⁴³ The Azazel goat was then led to a desolate part of the wilderness, which marked the absolution of “crimes and sins.”¹⁴⁴ The goat served as a “medium of atonement . . . and forgiveness” when performed by the Israelites.¹⁴⁵ While important for many years, the scapegoat rituals lost significance in Jewish practice in 70 CE.¹⁴⁶ However, these absolution concepts transformed into individual forgiveness through prayer and personal repentance associated with Yom Kippur.¹⁴⁷

Other societies also adopted and modified forms of the Hittite, Eblaite, and Jewish rituals, but sent away humans instead. For example, the Ancient Greeks adopted a similar form of the Hittite ritual using human sacrifices called pharmakos rather than animals.¹⁴⁸ For the Greeks, the “scape-person” represented the “evil that is being expelled.”¹⁴⁹ However, the Greek pharmakos ritual was performed for the purpose of stopping plagues, not absolving sins.¹⁵⁰ The scapegoat rituals also influenced the ancient Romans, who had a ritual in which army “commander[s] could offer a common soldier to die for all.”¹⁵¹ Like the Greek pharmakos ritual, the Roman ritual sacrificed humans instead of animals. While for different purposes, the Jewish ritual demonstrates the far-reaching, long-lasting effect of these rites in which communities can be cleansed by letting something go.¹⁵² Communal absolution practices found in Jewish, Greek, and other ancient societies provide important examples for how a society can cleanse itself from crime. The next Section discusses the change from ritual absolution to a year of absolution in which all wrongs, crimes, and debts were eliminated every fifty years.

Periodic Absolution Practices

Another influential practice, jubilee, is interesting to consider for modern criminal purposes. Serving as another communal absolution ritual, it underscores the importance of community cleansing of crime and sin in a periodic manner.

The Jubilee year represents how the forgiveness and cleansing of past wrongs permeate community ideals. The Jubilee year, which is outlined in Leviticus 25, demonstrates the role for which forgiveness began with Israelites and has since been adopted by Christians. Leviticus 25 instructed the Israelites to observe practices that marked a time when injustice was corrected and justice reestablished.¹⁵³ Jubilee consisted of slave release, debt release, restoration of land to original owners, and other restoring practices; it took place every fifty years.¹⁵⁴ In releasing slaves and debtors and restoring land, the Jubilee “sought to be an institution of sweeping social reform” for the Israelites.¹⁵⁵ It is unclear whether the Ancient Israelites actually ever put the ideas of the Jubilee year into practice, but the message of forgiveness the Jubilee year carries nonetheless impacted their society,¹⁵⁶ and has spread in Christianity as a practice still common among Christians.¹⁵⁷ The Jubilee year serves as a model in considering periodic release of injustices and public wrongs to create a more just society. As a criminal corollary, considering a release of criminal records or adjustment of criminal sentences provides a modern application to these principles that have had import in various ancient contexts.

The idea of communal absolution played a fundamental role in ancient Israel and provided a bedrock foundation for Greek and Roman civilizations. These ancient practices also influenced early American history, providing further support for considering systemic absolution in modern criminal justice.

Communal Absolution in American History

Communal absolution, or atonement rituals like the scapegoat and pharmakos ritual, have corollaries in American history. Group absolution rituals manifest in early colonial culture in several ways. Scholars have stipulated that prosecution of colonial “witches” in the eighteenth century “function[ed] . . . as a scapegoat ritual that served to rid the community of undesirable elements.”¹⁵⁸ Like the goat that was exiled from the Israelite community to purify and remove sin, here witches were also removed from early American colonial communities with the hope that the community would be purified. The scapegoat ritual has also served as an archetype in early American literature, with many prominent authors, including Mark Twain and William Faulkner “indicat[ing] varying attitudes toward and understanding of sacrificing a victim to banish guilt.”¹⁵⁹ Even the Thanksgiving turkey has been argued to serve as America’s symbol of a scapegoat.¹⁶⁰ Dr. Karen Davis, president of United Poultry Concerns, explains how when we kill and eat turkeys on Thanksgiving, they “function[] as . . . bearer[s] of impious sentiments,” just like the scapegoat bore the Israelites’ impurities and sins.¹⁶¹ Davis and others have connected the yearly presidential pardoning of a Thanksgiving turkey to the Israelite tradition, calling the pardon an “inverted scapegoat ritual,”¹⁶² in which “[t]he pardon therefore performs the same basic function as the scapegoating ritual . . . although instead of one special victim being scapegoated, every animal except for one special non-victim is scapegoated.”¹⁶³ Communal absolution, like the scapegoat ritual, provides the framework for modern criminal justice to embrace forgiveness of crimes.

Criminal absolution considers a communal forgiveness for offenders who collectively, as society determines, are set free from their past crimes and are permitted to rejoin society with similar rights as other citizens (after they have been properly held accountable). Communal absolution, or group cleansing of past wrongs, has corollaries in U.S. and world history and has the potential to transform our criminal justice system. Before introducing the concept of systemic absolution in criminal practice, the next Section considers the underutilized forms of absolution already existing in a punitive U.S. criminal justice system, though not recognized as such.

III. Forms of Absolution Existing in Criminal Justice

The American criminal justice system is overly punitive with little opportunity to remove the permanent stain of crime.¹⁶⁴ The United States incarceration rate is about “five times higher than the rest of the world.”¹⁶⁵ The roughly 2.3 million people incarcerated in American jails and prisons cost the state about $80 billion a year.¹⁶⁶ Scholars have increasingly argued that the “main driver of [this] mass incarceration” is not the imprisonment of drug and other nonviolent offenders, but the “over-sentencing of people for serious and violent crimes.”¹⁶⁷ Indeed, much of the “prison boom” of the latter 20th century can be traced back to increasingly punitive sentencing.¹⁶⁸ There is not one culprit or crime, but instead a “broad shift toward more punitive treatment for offenders in every major crime category,” both state and federal.¹⁶⁹ And while Americans’ societal attitudes toward crime are more punitive than some Western democracies, the country still has significantly longer sentencing than countries that are culturally similar.¹⁷⁰

There are existing forms of forgiveness in criminal justice, though they have not been articulated as such or relied upon extensively. In creating a more comprehensive punishment theory, there should be consideration of absolution after retribution, restorative justice, or incapacitation. This Section lays the groundwork for what already exists. The most common forms of absolution in criminal justice include sentencing and charging reduction efforts, expungement, and clemency. Part III.A discusses sentencing and charging reduction efforts including specific charging measures, deferred prosecution in Part III.A.1 and III.A.2, and safeguarding judicial discretion. Part III.B.1 and III.B.2 discuss automatic expungement through clean slate legislation. Finally, Part III.C discusses clemency and pardons. While these latter types of absolution have not been implemented broadly or institutionally, they demonstrate constitutional and statutory precedent for forgiveness in criminal justice and provide a place for broader implementation of systemic absolution in our system. Each type of absolution is discussed below as it currently exists with some considerations on how it can be expanded to systemic absolution.

A. Sentencing and Charging Revision

Sentencing and charging revision provide the largest-scale impact for systemic absolution. Regularly reassessing punitive measures enables society to move past transgressions, fostering unity and healing. In reevaluating sentencing and charging practices, it is important to recognize that punitive sentencing is a recent development in federal and state legislation over the past forty years.¹⁷¹

The criminal justice system currently uses sentencing and charging revisions to offer some measure of absolution to convicted individuals, though they are not articulated as such. Three programs—second look resentencing, deferred adjudication, and restoring judicial discretion—are discussed in greater detail below. Second look laws resentence offenders based on age, type of crime, or behavior in prison. Deferred adjudication is a common practice in some jurisdictions that allows prosecutors to delay or suspend a criminal case—usually for first-time or low-risk offenders—with the understanding that the charges will be dismissed if the individual avoids reoffending. In essence, it serves as a form of conditional forgiveness for those whose prosecution would not meaningfully serve justice. When used systematically, deferred adjudication enables prosecutors to postpone cases where formal charges are unnecessary to achieve a fair or effective outcome. Finally, restoring judicial discretion by eliminating mandatory minimum sentencing laws or determinate sentencing could reduce automated punitiveness and allow individuals to receive individualized sentences and allow for rehabilitation or change in prison. These three approaches provide systemic shifts towards absolution in criminal justice and are discussed in order below.

Second Look Resentencing

Expanding second look resentencing is one approach to expanding systemic absolution. Current criminal practice limits a second look at sentencing to cases with extraordinary and compelling reasons, but a true categorical second look provision would allow automatic periodic review after a certain period—such as after five years of imprisonment—where all prisoners would receive an opportunity to evaluate their sentences. Expanding second look resentencing requires an indeterminate sentencing system, discussed in Part III.A.3, in which sentences could be reduced based on rehabilitation and progress made by the inmate behind bars. Shon Hopwood urges that a second look provision should include all offenders, including those convicted of violent crimes and sex offenses because the best incentive to participate in recidivism-reducing programs¹⁷² such as behavioral therapy, is the incentive of early release, in addition to the fact that such programs have been very successful with low recidivism rates.

In many cases, it is difficult to identify which defendants have the capacity for rehabilitation and redemption at the sentencing stage, so the justice system needs an avenue for decisionmakers to take a second look at individual cases.¹⁷³ Second look laws provide a way to reduce the sentences of those who received excessively punitive punishments or who have demonstrated rehabilitation.¹⁷⁴ Moreover, second look resentencing can lower the chances of recidivism, ameliorate race-based sentencing disparities, and alleviate harm to family members.¹⁷⁵ It can also provide a systemic way to reduce prison populations and the financial costs of incarceration.¹⁷⁶ For the offender, resentencing also provides a sense of redemption and a recognition of their efforts towards rehabilitation.¹⁷⁷ Second look resentencing recognizes, values, and encourages absolution and

transformation, and has vast support from faith communities—who can be integral in motivating change from inside prisons.¹⁷⁸

Second look resentencing can provide systemic absolution, without harm to public safety, when conducted with consideration of empirical data on crime and punishment. First, studies show that long sentences do not deter crime, but rather it is the certainty of punishment which most effectively deters crime.¹⁷⁹ Moreover, offenders tend to age out of crime, as research indicates that even among chronic offenders, most will cease committing crimes by their forties.¹⁸⁰ This remains true for those convicted of violent crimes, including homicide; in fact, violent offenders who are older at release tend to have lower recidivism rates relative to other offenders.¹⁸¹ For these reasons, those serving long prison sentences, older offenders, and even violent offenders should be considered for periodic resentencing.¹⁸² Excluding violent offenders from second look sentencing programs eliminates the majority of the prison population from access to these programs. Currently, nine states—California, Colorado, Connecticut, Illinois, Louisiana, Minnesota, New Mexico, Oregon, and Washington—and D.C. have enacted second look laws.¹⁸³ Second look laws authorize judges to revisit long sentences after substantial time served and reduce them when the person no longer poses a risk or when the punishment is out of step with current sentencing standards.¹⁸⁴ At the moment, thirty-seven states have pending legislation to reduce overly long sentences.¹⁸⁵ Many states have passed legislation that sentences between 40 and 120 years are unconstitutional and thus the trend is moving towards change in this area.¹⁸⁶ Broader adoption of state laws that prohibit sentences beyond forty years and adjusting state sentencing schemes towards indeterminate sentences that allow for adjustment after five or ten years provide incentives for individual rehabilitation and allow for periodic adjustment of sentences in systemic absolution. Federal legislation, like the First Step Act of 2018, has also worked to reduce federal prison populations through reducing sentences for those with good behavior in prison.¹⁸⁷ Also, analysis on the First Step Act, six years after its implementation, has shown that inmates released under the Act showed lower recidivism rates and served less time than those released before the Act was passed.¹⁸⁸ Other legislation has allowed federal judges to reduce drug sentences when appropriate and depart from federal guidelines.¹⁸⁹

Reconsidering the terms of sentences periodically after their initial imposition and eliminating indeterminate sentencing practices are both ways to allow for systemic absolution of crime. While recognizing the importance

of criminal accountability and punishment, these changes recognize that people can change and that cultural shifts might allow many sentences to be reduced to remove the societal burden of incarceration.

Deferred Adjudication

Deferred adjudication provides another avenue whereby defendants may have their sentences diverted and thus receive absolution from the criminal justice system.¹⁹⁰ Deferred prosecution agreements (“DPAs”) enable a defendant to avoid prosecution, maintain a clean record, and move towards rehabilitation.¹⁹¹ When making a DPA, a prosecutor delays criminal charges and instead sets conditions for the defendant to follow under the government’s supervision.¹⁹² Defendants are not prosecuted unless they fail to comply with the conditions set forth. Similar to DPAs, a deferred sentence offers a defendant probation instead of conviction if they complete certain steps toward rehabilitation.¹⁹³ However, the defendant must first plead guilty, and that plea will remain on their record.¹⁹⁴ These alternatives to prosecution shift the focus from punishment to rehabilitation and spare defendants the often-debilitating collateral consequences of conviction.¹⁹⁵ Indeed, many individuals who have been convicted experience unemployment, exclusion from society, and a tarnished reputation and communities suffer with families separated.¹⁹⁶

Not only does broadening deferred adjudication help create systemic absolution, but it may also benefit the public by lowering recidivism rates. Some studies have shown that offenders receiving suspended sentences or probation are less likely, or at least not more likely, to reoffend than those who are sentenced to prison.¹⁹⁷ Additionally, DPAs and deferred sentences are far more cost-effective than confinement.¹⁹⁸ All fifty states have codified DPAs in some capacity, although most states place limits on the type of defendant and offense to which they can be applied.¹⁹⁹ Despite the many benefits of DPAs, research demonstrates that they are still used in less than a quarter of cases and could be a useful way to increase systemic absolution.²⁰⁰ Currently, prosecutors must justify declining to prosecute a case rather than bringing charges. This assumption could be reversed,²⁰¹ and deferred prosecution could be employed as the default for crimes that do not pose a threat to public safety, or where other options exist for holding criminal defendants accountable, such as mental health or drug rehabilitation. With broader use, deferred adjudication could serve a crucial role in curbing mass incarceration and offering absolution with a second chance.

Safeguarding Judicial Discretion

In the last fifty years, sentencing changes were made intending to make punishments both more severe and less determinate, and less subject to judicial discretion.²⁰² This provided judges and parole boards with less control and fewer opportunities for rehabilitation to reduce sentences.²⁰³ A major consideration in creating room for absolution is a shift toward indeterminate sentencing, allowing judges and public executives the opportunity to adjust sentences where appropriate. Another approach could be eliminating mandatory minimum sentences.

Some criminal actions have mandatory minimum sentences that judges must impose on convicted individuals. For example, Aguilera-Mederos was a truck driver who lost control of his truck on a Colorado highway, resulting in the death of four people.²⁰⁴ While some of his actions may have been reckless, the crash was unintentional and Aguilera-Mederos was repentant, begged for forgiveness, and complied fully with police.²⁰⁵ Because of the mandatory minimums required by law, the judge reluctantly handed down the required sentence of 110 years in prison.²⁰⁶ In Aguilera-Mederos’ case, the governor commuted his sentence to ten years, recognizing the injustice of the long sentence.²⁰⁷ However, convicted persons cannot rely on a rare pardon. The ABA has long opposed mandatory minimum sentencing and has urged Congress, as well as state and territorial legislatures, to repeal laws requiring minimum sentences.²⁰⁸ Although mandatory minimums were an attempt to address inequities, they now seem to be the source of punitiveness and an unnecessary enhancer of mass incarceration.²⁰⁹ Eliminating mandatory minimum sentences would improve fairness in sentencing as well as systemic forgiveness for many who are punished harshly in the criminal justice system. Federally, the Smarter Sentencing Act has been proposed several times, including as recently as 2023, to eliminate mandatory minimums for federal drug sentences.²¹⁰ Allowing judicial discretion and removing legislative hurdles and determinate sentencing would increase the potential for systemic forgiveness in the criminal justice system.

B. Automatic Expungement

Nearly one out of every three American adults has a criminal record, and nearly half of American children have a parent with a criminal record.²¹¹ The overwhelming majority of these individuals have never been imprisoned.²¹² Yet, they often suffer the consequences of carrying a criminal record for the entirety of their lives.²¹³ The traditional option for relief, expungement or sealing of records, is far from accessible.²¹⁴ Studies show that expungement both has positive real, measurable effects and is heavily underutilized.²¹⁵ In fact, the authors of one recent study suggest that only 6.5% of individuals receive expungements within five years of becoming eligible.²¹⁶ Many factors contribute to this low usage, chief among them perceived ineligibility, administrative hassle, monetary costs, and lack of information.²¹⁷ Thus, even individuals that legislatures have already deemed worthy of forgiveness often still do not obtain clean records.

Expungement allows a clearing of a criminal slate, and with analogy to bankruptcy can parallel ancient scapegoat rituals in clearing the societal criminal slate of debt and crime. A broader pact of expungement among states or a federal expungement scheme might be considered to expand systemic absolution. As it stands, once an individual commits a crime, they continue to be punished with collateral consequences, including social stigma of conviction, difficulty in finding employment, lost voting and jury rights, and inability to hold office.²¹⁸ Considering bankruptcy as a parallel provides some insight on how to expunge crimes from individuals as debts are discharged in a bankruptcy. A criminal conviction permanently labels and segregates an offender from society.²¹⁹ This creates a growing class of internal exiles who, despite serving their punishment, have no way to successfully reintegrate into society.²²⁰

Expungement is a process where the court destroys or seals an individual’s criminal conviction, removing it from a defendant’s criminal record, and ideally also from the public record.²²¹ This allows restoration of civil rights, limits the harm of inquiries by employers about criminal histories, and seeks to prohibit exclusion based on a prior conviction.²²² While expungement does not mean that the victims of the crime have forgiven the offender, it does signify a second chance and redemption from society. In other words, the community absolves the offender, allowing them to change and shed their crime and become someone new.²²³ At the same time, expungement does not eliminate responsibility for crimes as it is currently only available to people who have served their sentences and often to those who have gone beyond that by demonstrating rehabilitation.²²⁴

Traditionally, the legislature provided rules for expungement in state law, and under the applicable statute, individuals could petition the court for an expungement.²²⁵ But a unique characteristic of clean slate legislation is their automatic clearance of former crimes, which makes it a worthy form of systemic absolution. Several states have recently enacted clean slate legislation providing for automatic expungements, making the process much less burdensome for those with convictions.²²⁶ National momentum began with Pennsylvania first passing a clean slate law in 2018 and then twelve other states following their lead.²²⁷ These laws function by automatically erasing criminal records after a specified amount of time.²²⁸ This automated process has dramatically shifted the landscape of expungements in those states. For example, one year after Pennsylvania’s law went into effect, forty-seven million criminal charges were sealed, just over half the total charges in the criminal database.²²⁹ Between the twelve states, some fourteen million individuals are now eligible to have their records automatically cleared.²³⁰ At least five more states have pending clean slate bills,²³¹ and two Federal Clean Slate laws have also been proposed.²³² These new laws hopefully reflect a real shift in attitudes towards criminal records. For example, Utah’s Clean Slate Law seals eligible crimes so that they do not appear on records, and individuals will legally be able to respond to questions about criminal history as if the crime never happened.²³³ Utah’s law allows for some misdemeanor crimes to be expunged automatically if there is not another conviction for five to seven years.²³⁴ Indiana has an expansive law making expungement and sealing of records mandatory for records where no conviction has occurred.²³⁵ This includes serious felonies, and expungement is mandatory for misdemeanors if eligible.²³⁶ The law requires in all cases that an expunged conviction shall be treated “as if the person had never been convicted of the offense.”²³⁷ California also forgives old convictions for marijuana possessions, following the state’s legalization of recreational use of marijuana.²³⁸ At the end of 2023, New York became the twelfth state to pass a “clean slate” law.²³⁹

Many of these clean slate laws are a form of systemic absolution in which, based on certain qualifications, offenders can have their convictions automatically expunged without having to inquire into the specific facts of each case. Crimes automatically disappear from criminal records in the way ancient societies were healed ritually through a symbolic ritual. And although not directly reducing the number of people incarcerated, clean records have been shown to correlate with reduced recidivism rates,²⁴⁰ as well as arrest rates lower than the general population of the state and higher employment outcomes.²⁴¹ Clean slate laws also exemplify a forgiveness-centered legislative approach to criminal justice reform. They go beyond simply softening punishments, as the public through their elected representatives demonstrates a possible systemic approach to forgiveness, or a cleansing of the public slate.²⁴²

It is possible to expand automatic expungement to all states and consider this for the federal system. A historical corollary is bankruptcy law which allows those who are unable to repay their debts to have them wiped clean under federal law, as the Bankruptcy Act of 1800 facilitated the release of debt prisoners.²⁴³ Before this act, people who could not pay their debts were punished and put into prisons with poor conditions and punished as criminals. Bankruptcy law in the United States requires a person with debts to report all of their assets. Then, they are released from the burden of having to pay the debts they cannot afford to pay, and the debt is eventually discharged.²⁴⁴ After a legal bankruptcy, the individual who owed a debt and their company are free from any legal claims, though they may remain “a poor credit risk for future loans until they develop a record of making timely payments of bills.”²⁴⁵ Automatic removal of a bankruptcy occurs after seven or ten years, depending on the type of bankruptcy.²⁴⁶ The federal system could consider expungement of a criminal record after a similar period of time.

Expungement is an existing procedure that could be expanded so that more people who have been convicted of a crime and served their time could have their records expunged automatically and periodically. Federal expungement could mimic the bankruptcy system, with the goal of improving systemic absolution. Federal legislation called the Redeem Act has been proposed to tackle some of these issues.²⁴⁷ States who have not done so could legislate for an automatic expungement procedure for people who have been arrested and then remained crime-free for a certain number of years to have arrests removed from their record. Implementing an automatic expungement procedure where all people who have not been rearrested after a certain number of years could be expunged is one means by which to bring about societal absolution in our criminal justice system. Like the scapegoat ritual of old, this could be one way for society to understand that people can change and there should be periodic room to create a clean slate.

C. Clemency

While clemency is a broad term, American law primarily recognizes five forms of clemency: pardon, amnesty, commutation, remission of fines, and reprieve.²⁴⁸ Clemency traces its roots back to the Code of Hammurabi through the Greeks and Romans to the English legal system, and is enmeshed in principles of forgiveness.²⁴⁹ Because it is based on an executive considering an individual’s case and providing them forgiveness for their crimes, it does not have the potential applicability for systemic absolution. However, because clemency provides constitutional and historical authority for the importance of forgiveness in criminal justice, it is discussed below, though such approaches are not recommended for expanding into broader systemic absolution.

Pardon Power

Clemency can be used to improve justice by adjusting individual sentences to avoid undeserved punishment.²⁵⁰ In the United States, clemency power lies in the Executive branch in the Pardon Clause which vests the president with “[p]ower to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”²⁵¹ The president’s pardon power is expansively broad, and they may exercise their discretion to pardon for any reason, with no requirement to base their decision on objective criteria.²⁵² The president can use clemency to correct decisions of prior administrations with which they disagree and to make a statement about broader policy views.²⁵³ The majority of state constitutions also provide for a similar clemency power.²⁵⁴ The Founders understood the importance of establishing an avenue for mercy within the criminal justice system as a necessary check on a system that may allow for retribution.²⁵⁵ Moreover, it allows for more uniformity of treatment because it allows the president to consider national patterns, whereas prosecutors may focus on local interests.²⁵⁶ Some scholars argue that the Framers intended clemency to serve as an important check on overreach in punishing criminals, and if it goes unused, the justice system becomes unbalanced.²⁵⁷ Furthermore, while states may provide alternative mechanisms such as expungement, in the federal system, clemency is the only avenue for offenders to clear their records without further legislation.²⁵⁸

In the past, pardons were used more expansively to address policy issues, such as President Carter issuing amnesties for draft evaders,²⁵⁹ or George Washington pardoning participants in the Whiskey Rebellion.²⁶⁰ In more recent years, Presidents Reagan, Clinton, and Bush used the pardon power only sporadically, and did not use it to promote policy initiatives.²⁶¹ Modern presidents have differed in their approaches to the use of clemency. For example, President Obama granted 1,927 clemency petitions in his time as president,²⁶² with many recipients being offenders serving time for drug-related crimes.²⁶³ President Trump granted far fewer petitions,²⁶⁴ and many of the petitions he did grant were for people he knew personally.²⁶⁵ Clemency and commutation rates have declined drastically, most likely driven by tough-on-crime political forces.²⁶⁶ For example, while President Kennedy granted 33% of clemency requests, President George W. Bush granted only 2%.²⁶⁷ Similarly, from 1909 to 1913, President Taft granted 39% of requests, but President Obama granted only 5% during his tenure.²⁶⁸ Recent presidents have also used commutation to grant relief to criminal offenders. In 2024, President Biden commuted sentences of thirty-seven prisoners who were facing the death penalty with mixed reactions, some believing these were a “justifiable mercy,”²⁶⁹ and others claiming that victims were not shown appropriate justice.²⁷⁰ Overall, Biden pardoned over 4,000 individuals and Donald Trump has pardoned over 1,500.²⁷¹

The executive branch could consider data in its clemency decisions, potentially releasing a larger percentage of those incarcerated or considering data to determine which defendants are serving unfairly harsh sentences where others have received lesser punishments. Using clemency to reduce incarceration terms or inequity between those serving are two possibilities of expanding clemency beyond individual cases but considering it more broadly as a criminal justice reform measure. A potential problem to consider with the executive pardon power is its unlimited and unreviewable nature, raising the possibility for corruption and unequal treatment.²⁷² Another problem is that the agency in charge of submitting cases for review to the president is the Department of Justice (DOJ), which creates “tension because all clemency decisions are, in effect, reviews of prosecutorial decisions already made” by the same executive branch.²⁷³ The DOJ does not see its role as a policymaker but rather as an enforcer of the law, so clemency will be unlikely to be popular in that department.²⁷⁴ Rachel Barkow and Mark Osler suggest that using data-driven clemency might systematically help reduce sentences and check prosecutors who are charging offenders too aggressively.²⁷⁵ The data collected can also help to identify and correct areas where prosecutors are prone to error.²⁷⁶ Currently, clemency is not used in any meaningful way to address mass incarceration either on the federal or state level; but with the right considerations, it could be.²⁷⁷

Amnesty

Amnesty is a type of pardon, typically granted by a government to a group of people who have committed crimes, sometimes political in nature. President Andrew Johnson famously provided amnesty to all Confederate soldiers who decided to rejoin the Union.²⁷⁸ More recently, some scholars have proposed “Second Chance” programs to lawmakers that would grant first offenders amnesty after completing their sentence and a fixed term of probation.²⁷⁹ In 2018, the St. Louis Municipal Court established a warrant amnesty program, allowing anyone with an outstanding warrant for violating certain city ordinances to pay their original fines without late penalties.²⁸⁰ A potential use of amnesties is to stop mistakes in applications of the law. Martha Minow recommends the use of amnesties to “check overly zealous or biased prosecutions, excessively punitive rules, and simply mistaken policies.”²⁸¹ But thinking more broadly, amnesties could be applied extensively in cities and states to forgive certain types of criminal offenders, or those who have served a certain period or have undergone particular educational or rehabilitation programs while incarcerated. Amnesties can be used broadly and systematically by executive branch leaders to allow those serving long or punitive terms to have reduced sentences, or even to forgive those serving time due to mistaken policies.

While amnesty and pardons are not the best approaches to systemic absolution, as they are best handled on an individual basis, there are ways to

expand both practices that are already grounded in constitutional and legislative provisions to create larger avenues for forgiveness of crime.

IV. The Role of Systemic Absolution in Criminal Justice

Systemic absolution can create a more comprehensive theory of punishment and has the potential to transform criminal justice. While forgiveness or absolution might appear as only relevant individually, systemic absolution is already used in second look sentencing, automatic expungements of criminal records, and executive clemency as discussed above. It can also be expanded by increasing indeterminate sentencing, automating deferred adjudication, and by removing barriers for judges or parole boards to reduce sentences. Establishing a structural framework for these existing practices under the label of “systemic absolution” could help place them in proper context, promoting a more comprehensive approach to justice—one that allows for broad-scale forgiveness after punishment. There is a historic basis for societal forgiveness in Judaic, Roman, and indigenous laws. Understanding the religious roots behind our criminal justice policy allows us to question the guiding principles of retributivism and incapacitation that dominate our criminal justice policy. While it will always remain important to punish people proportionately and hold people accountable for crimes, these retributive aims are not complete without considering absolution after accountability. Current criminal justice theory is missing absolution, or a way to clean the slate after crime. Given that crimes by their nature are offenses against a state or community, a systemic absolution framework allows legislative, judicial, and executive branches to sort out the American mire of criminality.

The U.S. criminal justice system includes many people imprisoned for crimes, often because of a mistake made years ago or for those lacking resources or desire to change. Some have no interest in rehabilitation and remain a danger to society, but this is not the vast majority of the almost two million incarcerated. Many have potential to change but lack opportunities to rehabilitate and reintegrate into society. As such, the system hardly grants opportunities for individuals to start afresh, leaving many who remain in the cycle of criminality. This final Section introduces three considerations in adopting a systemic absolution framework. First, it considers criminal offenders potentially avoiding adequate accountability for crime. Second, it considers societal shifts on absolution that could allow forgiveness principles affecting individuals more universally to expand to macro-level systemic forgiveness. Third, it considers the perception of society on punishment and the age effect on crime and forgiveness. These principles contextualize systemic absolution with current accountability rates for crime, increased social interest in forgiveness, and empirical data demonstrating that society views current punishment trends as unduly harsh.

A. Perpetrators of Crime Avoiding Adequate Accountability

The criminal justice system, which currently fails to punish most offenders, could benefit from systemic absolution to deal with the twin challenges of mass incarceration and low criminal accountability. Scholars and policy advocates are aware of the American incarceration problem; America is number one in incarceration rates and will be for the foreseeable future. What is less understood is the amount of unresolved crime in America, or the low criminal accountability rate.²⁸² About twenty million serious crimes occur in America per year,²⁸³ but only a small fraction of these crimes are solved by police and then punished by the criminal justice system. Only 50% of serious crimes are reported to the police, 20% are solved, and 10% lead to a conviction.²⁸⁴ Thus, 90% of offenders go free, many without even being arrested. Arguably, America’s criminal justice system is technically absolving many serious crimes already, by failing to arrest most individuals. Many criminal justice scholars have overlooked this problem, but any argument that we should deal with criminal justice issues in a way that excludes these considerations is missing a big piece of the puzzle. Currently, society is both accepting high incarceration rates while ignoring the victims of serious crimes and failing to find a meaningful solution to the lack of criminal accountability.

Very few would argue that increased severity in incarceration is the best long-term approach to this twin problem of mass incarceration and low accountability.²⁸⁵ Even though there is a low probability of apprehension for offenders, the number and types of felonies that we punish have increased.²⁸⁶ The combination of low apprehension and high punishment increases the risk of recidivism, so the severity of punishment is not effective as a deterrent, and longer sentences are not the solution to recidivism.²⁸⁷ Incarceration is also an inadequate way to restore victims; because few offenders even get to the incarceration stage, most victims of crime are left without meaningful resolution. Increased certainty of punishment could help increase deterrence of crime. The few experiments with decriminalization demonstrate that this is not a viable solution.²⁸⁸

Punishment does not necessarily have to involve long-term incarceration and could include alternative approaches to criminal accountability. For instance, one approach discussed above that might institute broader criminal absolution would be to expand prosecutorial use of deferred prosecution as the norm for first-time offenders of crime, or those who might be especially well suited for mental health or drug rehabilitation. Prosecutors might charge crimes and delay trial or a plea agreement and sentencing rather than immediately convict offenders.²⁸⁹ Offenders must comply with certain standards that the prosecutor imposes as part of a “deferred prosecution agreement.”²⁹⁰ These requirements could include drug court, mental health court, drug testing, rehabilitation, mentoring and counseling, or other programs. If they meet the requirements and are not arrested again within a certain period, the prosecutor can drop the charges against them.²⁹¹ Like absolution in religion, criminal absolution might involve an offender recognizing her crime and taking measures that show her penitence. In return, the prosecutor, the person situated to impose justice on behalf of society, absolves her of punishment. However, this can be done automatically in a prosecutorial office where all individuals charged with certain crimes can have their charges dropped automatically if they remain law-abiding after a certain period of time. Deferred prosecution is one approach that might allow for a regular absolution of crime in a way that still maintains adequate deterrence for crime while allowing the principles of forgiveness to influence criminal justice.

B. Societal Shifts on Forgiveness

In recent years, forgiveness and restorative justice have been more prominent as individuals recognize the individual harm of holding on to resentment and hate. Empirical scholars like Megan Stevenson have argued that even well-designed criminal justice studies rarely produce meaningful change.²⁹² Stevenson points out that systemic change is a potential solution that involves changing the “minds and hearts” of many people “as well as changing the concrete structural factors.”²⁹³ The possibility of systemic change in the criminal justice system could be for communities to advocate for more formal adoption of systemic absolution, or broadscale forgiveness measures.

International charities are embracing forgiveness concepts,²⁹⁴ and the Templeton World Charity Foundation aims to reach 100 million people through evidence-based approaches to forgiveness in a worldwide “Discover Forgiveness” campaign.²⁹⁵ Similarly, in 2004, UK journalist Marina Cantacuzino founded The Forgiveness Project, which “provides resources and experiences to help people examine and overcome their own unresolved grievances.”²⁹⁶ The Forgiveness Project provides resources including shame training for people working in restorative justice, a group-based prison reform project “RESTORE,” and forgiveness-based lesson plans for schools.²⁹⁷ Other international initiatives, Beyond Conflict and the Institute for Historical Justice and Reconciliation, aim to rectify conflicts and reconcile contentious histories by employing practices of individual forgiveness.²⁹⁸ In one of the areas where societal norms have led before the legal academy, media and social science thinkers have explored important ground in considering the benefits of forgiveness to individuals.²⁹⁹

The legal academy has considered that the harm of punishment to an individual does not make the victim whole.³⁰⁰ Indeed, research demonstrates that forgiveness is more likely to help victims than punishment is. Michael Wenzel and Tyler Okimoto found that “a sense of justice restored through restorative responses promotes forgiveness, but justice restored through retributive responses does not.”³⁰¹ According to research, victims of robbery, burglary, and assault are twenty-three times more likely to feel they have received a sincere apology and four times less likely to desire revenge after restorative justice conferences as opposed to ordinary legal proceedings.³⁰² Victims expressed more satisfaction with restorative than adversarial processes and expressed excitement to help offenders turn their lives around, even though they rarely articulated the concept of forgiveness.³⁰³

There are many physical, mental, and emotional benefits for victims who choose to forgive their offenders, and negative effects when people fail to forgive.³⁰⁴ Positive psychology experts explain that when people forgive, their emotional reactivity decreases and their level of happiness goes up.³⁰⁵ However, the benefits of forgiveness for a victim are not as great as the “adverse health consequences” of failing to forgive.³⁰⁶ Unforgiveness “is associated with stress-related poor mental health, rumination, and depression.”³⁰⁷ Dr. John Clabby found physical harm for holding on to emotional injury and notes, in particular, adverse effects on the heart.³⁰⁸ Having each individual perpetrator or victim enter through the criminal justice system is not necessarily vital, as some benefits for both sides can be found through restorative measures.³⁰⁹ These individual benefits can extend to society if systemic absolution were adopted in a comprehensive crime framework.

C. Punishment Levels Need Adjusting

Both empirical research and societal surveys show that punishing for as long as we do might not benefit society. First, criminology research has long supported the crime-age curve that demonstrates how criminality rates peak in the late teens and drop steadily as age increases.³¹⁰ In 2019, individuals between the ages of fifteen and twenty-nine made up nearly forty-two percent of all arrests in the United States.³¹¹ Individuals aged fifty and above accounted for only thirteen percent of arrests.³¹² Other research has shown that there is a dramatic drop-off in criminality after the age of forty.³¹³ Indeed, we understand that older individuals are unlikely to recidivate. Congress has passed the First Step Act to allow release for those serving after the age of sixty and not charged with violent crimes. We also know that people typically age out of violent crime by fifty.³¹⁴ There is room for sentence revisions based on this information. However, older inmates charged with violent crimes are also very unlikely to recidivate.³¹⁵ And given that the bulk of state inmates are serving long sentences of violent crimes, and two out of three are over the age of fifty-five, reconsidering sentences for defendants between forty and sixty could dramatically decrease incarceration rates.³¹⁶ For example, society would not face increased safety threats when second look laws include individuals in their fifties and forties who have already served lengthy sentences for violent crime.³¹⁷

Empirical work by Paul Robinson demonstrates that society’s sense of justice is to punish much less than we currently do.³¹⁸ Robinson argues that most criminal law systems have already lost the moral credibility with their communities because they are far too harsh.³¹⁹ Robinson contends that there is more room for mercy in criminal justice and has advocated for a codification of rules that could be applied consistently and would not become dependent on the judge or some other extraneous factor.³²⁰ Robinson advocates for a “Mercy Code” with guidelines for what kind of behavior begets mercy and to what extent mercy will change the ultimate outcome of the sentencing for the offender.³²¹

Reevaluating sentencing through the lens of forgiveness is not to say that punishment should be abandoned altogether, but that second look laws should be expanded. Robinson argues that to encourage mercy without any kind of limits would create mayhem,³²² and I would argue that expanding forgiveness to avoid accountability would create a lack of order and improper incentives when it comes to crime. The research demonstrates that the “impulse to punish wrongdoing” is so deeply ingrained that most people would resist the abolition of all punishment.³²³ Additionally, the possibility of punishment serves to deter delinquency and a total lack of consequences could, and has, led to chaos in places that have experimented in this regard.³²⁴ As suggested above, to maintain accountability but also allow systemic absolution, offenders would be given the opportunity to enter into deferred prosecution as a default measure which allows a defendant to change or face prosecution under the law.

Conclusion

Communal absolution has been a fundamental part of societal practice throughout history, particularly in the criminal context. While some might be concerned that systemic absolution might undercut retributive justice that dominates modern criminal justice, its introduction could ameliorate the effects of an overly punitive system and make a meaningful dent in the United States’s mass incarceration problem. Forgiveness has an expansive history, particularly with ancient cultures that form the bedrock of criminal punishment theory. Many religions, including Christianity, Islam, Judaism, and Buddhism, employ some concept of absolution as a central part of their religious practice. Forgiveness also plays an integral role in individual mental health, while unforgiveness negatively impacts people’s overall well-being. While individual forgiveness is already part of our criminal justice system as a part of restorative justice, there has been no recognition of systemic absolution in modern criminal justice. Individual forgiveness in criminal justice currently includes clemency, expungement, apologies, the right of the victim to forgive, and restorative justice.

These are all important developments. However, without a move towards systemic forgiveness in criminal justice, the community continues to be burdened by the crimes of offenders long after they have been convicted and sentenced.³²⁵ Systemic absolution, discussed above, might include expansion of sentencing reduction legislation, defaulting to deferred adjudication by prosecutors, and automatic expungement efforts after a certain period of time of avoiding crime. Currently, communities carry a heavy social burden resulting from mass incarceration. Families and communities are broken apart as fathers, mothers, and siblings are removed from their support systems. Disproportionate harm towards minority groups results from higher rates of crime and incarceration and resulting collateral consequences inflicting communities after prison.³²⁶ Ultimately, distrust and hopelessness dominate criminal justice when punishment systems lack a system of absolution. Our current punishment structure envisions people as two-dimensional archetypes rather than complex human beings with inherent dignity. A person’s crime defines them indefinitely, limiting opportunities for change and holding them captive with societal stigma. Without a systemic mechanism recognizing that all of us collectively should not be punished perpetually for the worst thing we have done, society remains burdened by the weight of mass incarceration and punishment.

By incorporating systemic absolution into the criminal justice system, we can heal the many individuals who never receive justice—and even those who do—since the system has not proven to be effective at solving the underlying problems. Incorporating systemic forgiveness into our criminal justice system will also help society be more compassionate towards offenders and see “the full picture of their humanity,” unobscured by “their worst moment.”³²⁷ As Robin Steinberg observes that “[e]ach one of us has done something that could be defined as criminal—driving home after a few too many drinks . . . or being less than truthful on a tax return . . . . Whether or not our crimes have landed us in the criminal justice system . . . none of us wants to be defined by our most shameful moment.”³²⁸ Just as we do not want to be defined by these regrettable mistakes, neither do individuals who are incarcerated. Systemic absolution could expand healing for society as former offenders are given hope to live a normal life. Moving towards absolution in criminal justice provides helpful nomenclature for what is already happening when crime goes unpunished but allows for accountability in areas where societal priorities do not align with carceral outcomes. As past civilizations and religions have championed communal restitution,³²⁹ systemic absolution has the power to transform criminal justice today.

99 S. Cal. L. Rev. 41

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Shima Baradaran Baughman*

*Woodruff Deem Professor of law at BYU Law and Distinguished Fellow at Wheatley Institute. This piece benefited from an earlier less developed presentation at the Stanford/Yale/Harvard Criminal faculty workshop. I am grateful for Benjamin Hill, Bonnie Stewart, Lane Gibbons, and Mason Spedding for research assistance as well as Kory Staheli and Erica Larsen for institutional support. I am grateful for the excellent editing by the Southern California Law Review staff particularly Christopher Shahverdian and Kevin Zhang.

Sleep Deprivation in Prison

January 2026January 2026Sharon Dolovich*

Introduction

Human beings need sleep. We all know this. When we do not get enough sleep or when the sleep we get is repeatedly interrupted, our ability to function—to focus, to treat others appropriately, to respond effectively to life’s daily challenges—will be severely compromised. And these are just the effects we notice. Over the past decades, advances in sleep science have made clear just how necessary adequate sleep is to every dimension of human health. A chronic insufficiency of sleep increases the risk of, among other medical conditions, “obesity, diabetes, cardiovascular disease, and infections.”¹ As noted sleep scientist Matthew Walker puts it, “Every major system, tissue, and organ of your body suffers when sleep becomes short. . . . [T]he shorter your sleep, the shorter your life.”² And persistent inadequate sleep takes an equally great toll on mental health, exacerbating “all major psychiatric conditions, including depression, anxiety, and suicidality.”³

For adults, the consensus recommendation is a minimum of seven hours of uninterrupted sleep per night; otherwise, the processes operating at each stage of the sleep cycle will be unable to perform their restorative work.⁴ It is no secret that many Americans from all walks of life routinely fail to meet this target. Judging from the size of the sleep aid market—an estimated $65 billion is spent annually in the United States alone⁵—access to financial resources is no guarantee of adequate sleep. Yet, as Keisha Ray observes, the more limited one’s access to the social determinants of health—including, among other things, “food security, stable housing,” and “the freedom to choose where and how we sleep”—the less well-slept a person is likely to be.⁶ Access to adequate sleep, in other words, exists along a continuum, on which those lacking socioeconomic power and control over their physical environment are likely to experience a greater measure of sleep deprivation than society’s more privileged members.

This Article focuses on a group at the extreme end of this spectrum of disempowerment: those incarcerated in American prisons. Drawing on original data collected through in-depth, semi-structured interviews with people who served time in prisons all over the country, this Article maps the myriad overlapping conditions that systematically prevent people in prison from getting adequate sleep. Whether through luck, privilege, or their own affirmative choices, some people sometimes manage to get reasonably adequate sleep inside.⁷ But as my interviews show, most people in prison routinely sleep far less per night than the minimum seven hours that public health experts recommend.⁸ And for just about everyone living in prison, the quality of the sleep they get is consistently poor. In this Article, I offer a detailed account of why this is so.

To my knowledge, this study represents the first systematic effort to understand a destructive and dehumanizing experience that, although an inherent feature of prison life, has gone almost entirely unnoticed even by those academics, advocates, and policymakers invested in ensuring humane carceral conditions.⁹ Its conclusions are unambiguous: for a host of reasons explored in these pages, the incarcerated are chronically, perpetually sleep deprived—a condition they endure every single day, for years and sometimes even for decades.

The consequences of this situation are dire. Sleep deprivation compromises prisoners’¹⁰ physical and mental health, making them age faster and die younger.¹¹ It leaves people brittle, prone to frustration and anger, and without the cognitive resources to make good decisions, thus promoting conflict and violence in already volatile environments. And it strips them of the ability to think deeply and to exercise reasoned deliberation, capacities that are necessary for personal growth and healthy interpersonal bonds. Sleep is a basic human need, as vital to human survival and proper functioning as food, water, shelter, and personal safety. Yet persistent sleep deprivation—the product of what might be termed systematic sleep interference by the actors and institutions charged with administering carceral penalties—is a constitutive feature of life in custody. It heaps hardship, injury, and all manner of suffering on top of the formal punishment. And it represents a key, underappreciated reason why American carceral facilities are so noxious and inhumane.

Recognizing chronic sleep deprivation as a standard feature of prison life sheds new light on aspects of the carceral experience that have long seemed fixed and inescapable, including the high level of interpersonal tension, the pervasiveness of mental illness, and even the seemingly illogical willingness of people inside to put themselves into debt—a dangerous posture to adopt in prison—for the sake of a few candy bars or a bag of chips.¹² In prison, moreover, residents are not the only ones unable to get enough sleep. Thanks to shiftwork and overtime (whether mandatory or voluntary), correctional officers (“COs”) too are chronically tired.¹³ In short, in the often tense and high-octane environment of the prison, many if not most people in a facility at a given time, staff included, are wrestling with the debilitating effects of persistent sleep deprivation. This shared state of impairment cannot help but impact the functioning of the institution and poison interpersonal interactions between and among residents and staff.¹⁴

In future work, I will explore at greater length the implications of pervasive chronic tiredness on the character and operation of the modern American prison. I will also map the occupational health and safety effects on COs of a work schedule that often precludes anything close to sufficient sleep.¹⁵ Here, I focus on the basic phenomenon of sleep deprivation as a constitutive feature of the prison experience for those we incarcerate—a feature that, I argue, is as central to the punitive character of a prison sentence as is grossly inadequate medical and mental health care, the use of solitary confinement, the risk of physical and sexual assault, and the threat of excessive force by COs.

Two additional introductory points: First, this project focuses primarily on prisons, where time served is measured in years and decades. Yet sleep deprivation is also a problem in jail.¹⁶ If anything, it is worse. All my interview subjects did jail time before winding up in prison. And they universally reported that, however hard it was to sleep in prison, it was exponentially harder to sleep in jail. In jail, people may be detoxing. They are on average younger, more impulsive, and generally lack familiarity with the code of respect that can prevail in prison among people with long sentences. The constant churn means that people are always surrounded by strangers, a situation certain to exacerbate fear. The majority of those in jail at any given time are pretrial and understandably anxious about their cases. There is no programming to speak of, and mental illnesses will mostly go untreated. The combined result of these dynamics is a cacophony of noise and disruption in the housing units that, I am told, never stops.¹⁷ Among the troubling implications of this situation is that people detained pretrial routinely go to court exhausted, even to the point of falling asleep at counsel table during their trials.¹⁸ For most people, a stint in jail is relatively short. But even short periods of insufficient sleep can take a toll on physical and mental health. And for many people, a jail stay can last months or even years.¹⁹ For these reasons, much of what I say in this Article about sleep in prison should be taken to apply equally, if not more, to the context of jail.²⁰

Second, that COs are also chronically sleep deprived equally demands our attention. As a basic ethical matter, we ought to care about the experiences of COs, fellow human beings tasked with doing an impossible and often traumatizing job under difficult and at times dangerous circumstances.²¹ The least we can do is ensure that they have the opportunity to get adequate sleep, and thus avoid the harms that may come to them and their families and communities if they do not. That staff routinely get insufficient sleep is also extremely salient for those living behind bars. When staff are sleep deprived, prisoners suffer.²² As noted, in future work, I will investigate sleep deprivation among staff both as a matter of occupational health and safety and for its impact on the prison environment. I flag this issue now so that, by focusing here on the experience of sleep deprivation among the incarcerated, I do not create the impression that I imagine the problem to be exclusive to prisoners.

The argument of this Article proceeds as follows. Part I offers a short overview of the sleep science, focusing on the physiological and psychological harms and cognitive impairments traceable to insufficient sleep. Part II briefly describes the study parameters and methodology.²³ Parts III and IV represent the sociological heart of the Article, offering a thick description of the experience of trying to sleep while incarcerated. Part III describes the impact of a set of concrete conditions that systematically prevent people in prison from getting adequate sleep: uncomfortable beds, hunger, extremes of temperature, noise, and excessive light. Part IV identifies a set of what I call “meta-conditions”—specifically, fear of violence, trauma, poverty, overly-intrusive rules enforcement, and daily humiliations. These conditions, which likewise routinely compromise sleep, are also products of institutional choices, but they have been so naturalized to the life of the prison as to leave us blind both to their destructive effects and to their ultimately contingent character. Part V begins to explore the normative implications of the phenomenon identified here, including what it means for our understanding of prisons and of carceral punishment, the prospects for Eighth Amendment conditions claims grounded in sleep deprivation (and, very briefly, for claims of torture under international human rights law), and the policy challenges likely to confront efforts to address the problem. On each of these topics, there is much more that could be said. The goal here is to start the conversation.

I. A Brief Overview of the Sleep Science²⁴

Over the past twenty-five years, the field of sleep science has exploded.²⁵ Although the discipline is still developing, more than two decades of research strongly attests to the profound negative health effects—physical, psychological, and cognitive—of less-than-optimal sleep. Total sleep deprivation—enforced wakefulness over days—is “understood to be particularly detrimental.”²⁶ But interference with sleep need not be total to compromise physical and psychological health. Even people who regularly sleep five to six hours per night—considered “short sleepers” in the literature²⁷—exhibit notable adverse health effects, in some cases after only a few nights of restricted sleep.

Perhaps the most jarring finding to date has been confirmed in three separate meta-analyses. Encompassing studies comprising 1.32 million, 3.58 million, and 5.17 million subjects, respectively, all three investigations found short sleep duration²⁸ to be associated with an increased mortality risk of 12–13%.²⁹ No single driver of this mortality effect has been identified. Instead, the data shows significant associations between short sleep and a host of serious medical conditions, including heart attack,³⁰ hypertension,³¹ cardiovascular disease, coronary heart disease, and stroke.³² Short sleep and sleep disturbance have been associated with an increased risk of developing Alzheimer’s disease,³³ as well as a host of metabolic disorders, including a heightened risk of insulin resistance,³⁴ obesity,³⁵ metabolic syndrome,³⁶ and Type 2 diabetes.³⁷ Insufficient sleep has also been found to cause imbalances in the autonomic nervous system, the indicia of which include increased heart rate,³⁸ elevated cortisol levels,³⁹ decreased heart rate variability,⁴⁰ and increased levels of norepinephrine.⁴¹ Among other adverse physiological effects, this collection of symptoms increases the risk of cardiovascular disease and represents a predictive marker for “sudden cardiac death.”⁴²

Sleep deprivation has also been found to generate adverse psychological effects. For example, sympathetic bias in the operation of the autonomic nervous system has been linked with conditions indicating “emotional dysregulation, such as anxiety, depression, and rigid attentional processing of threat.”⁴³ Persistent sleep disturbance is consistently associated with a heightened risk of developing major psychiatric disorders, including depression, anxiety, and suicidality.⁴⁴ Concerning depression, one major meta-analysis, incorporating research from twenty-one qualifying studies, found that “nondepressed subjects” who experienced “difficulties in initiating/maintaining sleep or non-restorative sleep”⁴⁵ have “a twofold risk to develop depression, compared to people with no sleep difficulties.”⁴⁶ Research also indicates a greater likelihood of mental health issues among those who experience sleep disturbance over time. One early study found that respondents with persistent sleep disturbance “had significantly higher rates of new cases of both major depression and anxiety disorders compared with those whose insomnia resolved.”⁴⁷ Other studies have begun to map the link between sleep disturbance and the symptoms of bipolar disorder.⁴⁸ There is even some evidence suggesting that sleep disturbance increases proneness to substance use disorder.⁴⁹

Inadequate sleep also compromises cognitive functioning—and the more sleep deprived a person is, the greater the cognitive effect.⁵⁰ Multiple well-controlled studies have demonstrated the impact of sleep deprivation on the capacity for vigilance, working memory, and sustained attention, with one experimental study finding that “chronic restriction of sleep to [six] h[ours] or less per night produced cognitive performance deficits equivalent to up to two nights of total sleep deprivation.”⁵¹ Sleep deprivation also slows reaction time and compromises performance in the completion of cognitive tasks.⁵² When sleep restriction is chronic, these cognitive defaults are cumulative,⁵³ and when people routinely sleep less than seven hours per night, the resulting cognitive impairments are as marked as in those experiencing “severe acute total sleep deprivation.”⁵⁴

Finally, sleep deprivation impairs one’s ability to successfully navigate stressful or frustrating situations. These effects are evident after just one night of inadequate sleep. As Andrea Goldstein and Matthew Walker put it in their survey of the field, even “one night of experimentally controlled sleep loss increases subjective reports of stress, anxiety and anger in response to low-stress situations and increases impulsivity towards negative stimuli.”⁵⁵ Insufficient sleep is also “associated with a lack of flexibility and capacity to respond to emotional challenges,” and thus with a decrease in emotional resilience.⁵⁶ Together, these emotional regulatory failures undermine the capacities necessary if one is to get along with others. In one study, researchers showed that sleep deprivation was “associated with increased outward expression of aggressive responses and a greater tendency to assign blame to others when confronted with frustrating situations.”⁵⁷ Subjects tended towards “antagonistic, self-serving, and uncooperative behavioral responses, such as increased blame and hostility, reduced willingness to make concessions and restitutions, and a general increase in atypical or impulsive responses, all of which are antithetical to harmonious interpersonal relations.”⁵⁸

The aim here is not to provide a comprehensive account of all relevant findings related to the negative health effects of sleep deprivation. The field is too vast to make such a goal workable. The point is rather to make clear that interference with sleep is not simply a matter of losing access to the “creature comforts” widely considered inconsistent with carceral penalties. Chronic sleep deprivation carries an increased risk of physiological harm, early mortality, and a range of psychopathological effects. It takes a toll on cognitive functioning and on a person’s capacity for prosocial interpersonal interaction. To the extent that prison systematically impedes a person’s ability to sleep over months, years, and even decades, this feature of a prison sentence can inflict substantial long-term damage. This brings us to the central question of this Article: How much and how well do people sleep in prison?

II. The Study⁵⁹

In prison, it is virtually impossible for people to get the recommended minimum seven hours of uninterrupted sleep. On most nights, most people inside will get only four to six hours⁶⁰ of light sleep punctuated by frequent interruptions—a pattern that persists night after night, for years.

This is the unmistakable conclusion that emerged from over seventy‑four hours of interviews I conducted in 2023 with thirty-nine people⁶¹ formerly incarcerated in American prisons nationwide.⁶² Of these thirty-nine interviews, thirty-five were formal, semi-structured interviews based around a questionnaire with roughly 200 questions,⁶³ with the average interview lasting just under two hours.⁶⁴ Subjects were asked about their experiences of sleeping/trying to sleep in prison, the factors that may have prevented them from getting adequate sleep inside, and the ways their own persistent sleep deprivation—or that of staff or other residents—may have affected their daily lives while incarcerated. In addition, I conducted four somewhat more freeform on-the-record conversations (labeled “ad hoc” or “AH” interviews to distinguish them from the more formal interviews) with subjects who were outside the study parameters for the formal interviews, but whose insights and experiences promised to provide valuable perspective and context. During these conversations, I asked many of the same questions I asked during the formal interviews. In the end, much of what I heard in all my interviews, ad hoc interviews included, proved remarkably uniform. As a result, I wound up drawing on all thirty-nine interviews when analyzing the data.⁶⁵

With one exception, each interview subject had spent at least four years in prison.⁶⁶ The average length of incarceration among my interviewees was thirteen and a half years,⁶⁷ with fourteen individuals in the sample having served more than twenty years and eight serving more than twenty-five years. In terms of jurisdictional diversity, eighteen interviewees served time in four states: California (five), New Jersey (five), New York (four), and Louisiana (four). Between them, the remaining twenty-one participants had experience of prisons in fourteen other geographically diverse states plus the federal Bureau of Prisons.⁶⁸

Everyone I interviewed was incarcerated in multiple prisons over the course of their confinement. This broad experience proved valuable in two ways. First, it allowed me to learn about conditions in many more facilities than I had interview subjects. Collectively, my interview subjects did time in at least 185 separate institutions,⁶⁹ including 126 state prisons, 18 federal prisons, 33 jails,⁷⁰ and 8 youth detention centers.⁷¹ By speaking to thirty-nine people, I was thus able to hear firsthand about conditions in 8.5% of all prisons in the United States, including 8% of state prisons and 18% of federal prisons.⁷² Second, it meant that virtually everyone was able to compare conditions among institutions. Although the interviews revealed some notable regional variation, perhaps most striking was just how nationally uniform were experiences bearing on sleep—with any jurisdictional differences for the most part proving more a matter of degree than kind.

In terms of race, my interview sample self-identified as follows: 15 Black (38%), 13 White (33%), 7 Hispanic (18%), 1 Asian (3%), 1 Native American (3%), and 2 mixed race⁷³ (6%). The goal was to replicate as nearly as possible the racial distribution of the American prison population, and in the end, I came close.⁷⁴ As for gender, four of my thirty-nine interview subjects were housed in women’s prisons, comprising 10% of the total,⁷⁵ with the remainder doing their time in men’s prisons.⁷⁶ These numbers also came close to the gender breakdown of the American prison population overall.⁷⁷

It would be impossible to reproduce in full the richness of the narratives the interviews yielded. Instead, in what follows, I distill the key points that emerged around the experience of sleeping in prison and the conditions that impede sleep. In part, the power of the methodology employed—the long-form, semi-structured interview—is the degree of confidence it can afford in the accuracy of what one hears when the same thing is reported by multiple subjects in a diverse sample.⁷⁸ On this measure, confidence is warranted as to many of the topics covered in my interviews, which yielded a high degree of consistency despite the diversity of the sample across, among other factors, race, gender, jurisdiction, housing configuration, and security level.⁷⁹ Where my interviews revealed variation as to a particular issue or experience, I indicate as much in the text.

To my knowledge, this is the first study to attempt to capture what it is like to try to sleep in prison in the United States. The goal here is to begin to excavate a phenomenon that has to this point eluded scrutiny, despite the centrality of sleep—and, it appears, sleep deprivation—to the American carceral experience. Inevitably, some relevant aspects will remain unaddressed. One central contribution of this work is to provide an initial account that may be built out through future research.

III. Findings I: Carceral Conditions Impeding Sleep in Prison

In this Part, I describe specific, discrete conditions persistently impeding the ability of people to sleep in prison. Representing features of the physical plant (e.g., lighting, HVAC, beds, and bedding) and institutional operations (e.g., housing configurations, methods of conducting count and security checks, mealtimes), they are of the sort typically considered appropriate targets for more conventional policy reform. Of these sleep-compromising conditions, two categories—beds and bedding, and food and hunger—appear from my interviews to be experienced across the board by pretty much everyone, regardless of security level, jurisdiction, or any other factors. A further set of conditions—those salient during periods of extreme heat or cold—impact people differently depending on region and time of year. Finally, two other issues—noise and excessive light—are experienced differently depending on a range of factors, including housing configuration, security level, staff behavior, and the happenstance of the unit in which one is housed and where one’s bunk is located.

In what follows, I explore each factor in turn, describing how each impacts the ability of people to sleep in prison. But this approach carries a risk, as it makes it seem as if the culprit is exclusively poor system design. To some extent this is so, and for this reason, implementing changes on the ground is one obvious policy response to the findings reported here. At the same time, this focus on concrete institutional arrangements risks obscuring a deeper, more pernicious truth, one that I address in more detail in Part IV. There, I explore a second set of carceral conditions—termed “meta-conditions”—which more directly reflect the prison’s toxic moral foundations and COs’ consequent blindness to the humanity of those in their custody. If prison officials cannot see the people in the beds at night as human beings who need sleep to survive and properly function, they will not act, or run the prisons, in ways that protect and promote adequate sleep. And sure enough, in American prisons, they do not.⁸⁰

A. Uncomfortable Beds/Bedding/Mattresses

In prison, the construction and nature of the beds and bedding alone would be enough to keep most people from getting decent sleep. The beds are rock hard—typically just a metal or concrete slab—and so narrow and short that people who are taller or heavier than average often will not fit. “Mattresses” are nothing more than thin pads covered with a rubbery plastic that is sticky in the heat and cracks in the cold. But equally if not more disruptive of sleep is the construction of the bunkbeds, the main sleeping configuration for people in prison. Bunkmates feel and are disturbed by every slight movement, which, depending on how people get along, can make sleeping a stressful experience for those afraid to spark conflict simply by turning over. For this reason, or simply out of respect for a bunkmate’s sleep, those on top bunks may hesitate to leave their beds at night even to urinate. Not only do those who try risk waking frustrated bunkmates who are themselves desperate for sleep, but the high likelihood of disrupting their neighbor’s personal property as they try to get in and out of their bunks in the dark while half asleep generates further stress and potential conflict. None of this is conducive to enabling sleep.

In prison, the beds are “rock hard.”⁸¹ For the most part, the design is the same: metal frames with a solid concrete or metal pallet—a “large . . . piece of sheet metal with four legs bolted to it.”⁸² They are also narrow, so “[y]ou[’ve] got to train yourself to sleep in this small space and not roll over . . . onto the floor.”⁸³ People who are bigger or taller than average have an especially hard time. For those who are overweight, it can be “hard to turn over . . . because the beds are small.”⁸⁴ One person, who at one point weighed 330 pounds, described how he needed to “lift up and flop” to turn over “[b]ecause you can’t roll. If I roll, I’m going [to wind up on] the floor.”⁸⁵ Those who are tall have a different problem. One especially tall person “had to sleep on the bottom bunk with his feet on the toilet.”⁸⁶ Another “big guy,” the cellmate of an interviewee, “had to sleep [in] reverse [of] the normal way so his feet could hang off the edge of the bed.”⁸⁷ To do this, “he had to tuck his head underneath the shelf” which would ordinarily be at the foot of the bed.⁸⁸

Were the mattresses sufficiently thick and springy, the concrete or metal pallets might not cause problems. This, however, is not the case. Each time I asked about mattresses, I was treated to the same visual representation,⁸⁹ with people using thumb and index finger to indicate roughly three to four inches, or five inches at most. And this was when mattresses were new. As one person explained, “at one point they were about four or five inches thick, but then . . . as time[] went on, the middle part bec[ame] smaller . . . [and] at some points, it can become nothing more than two pieces of fabric.”⁹⁰ The thinness of the mattresses was an issue for everyone: “you’re sleeping pretty much on metal,”⁹¹ and “you’re gonna feel that iron underneath you every frickin night.”⁹² Many people reported experiencing perpetual discomfort, with each night an ordeal of tossing and turning. The hardness of the mattresses was “difficult on your back, so you wind up with back problems”⁹³ or “sciatic nerve damage.”⁹⁴ In some cases, people reported such problems persisting after release.⁹⁵

The mattresses’ material also causes problems. The covers are a plastic, rubbery substance to which bodies stick, especially on hot nights.⁹⁶ One person described preferring to “sleep on the middle piece of steel,” because on the mattress he “would feel the heat and the sweat.”⁹⁷ Even on temperate nights, the rubbery material was unpleasant to the touch. One could cover the mattress with a sheet, but the “vinylized rubber” material “will [still] make you very hot and sweaty.”⁹⁸ And as the mattresses age, “the plastic [gets] all cracked and ripped,” and “the person who slept in it before you [was] sweating [so] it gets moldy—the foam holds the mold, and you can smell it.”⁹⁹ Replacing bedding, including mattresses, is at the COs’ discretion. As one person put it, “[y]ou could request a new mattress, and depending upon the officer . . . on duty at the time, he’ll put your request through, or he’ll just toss it into the garbage can or run it through the shredder.”¹⁰⁰

Blankets are generally thin: “[S]ummer blanket[s]” are “the lowest quality of . . . cotton”¹⁰¹—“more like fish nets, . . . maybe crocheted or something but . . . they weren’t solid, so air can go through it.”¹⁰² Whatever the ambient temperature, people tend to be allocated one blanket only.¹⁰³ As for pillows, most prisons appear not to supply them. In many places, the best one might get is a pillowcase, which allows for handmade pillows stuffed with “hoodies and sweatpants.”¹⁰⁴ This approach does not afford a comfortable sleep. If pillows are supplied, they “could be hard as a rock or . . . flat as a pancake.”¹⁰⁵ As one person with a gift for metaphor put it: “[T]he pillows you’re sleeping on . . . might as well stack a couple sheets of paper together and put your head on that.”¹⁰⁶ In some prisons, the mattresses came with “a little bump at one end that was supposed to be a pillow. . . . [A]n inch high or something.”¹⁰⁷ When I asked if that did the trick, people just scoffed.

Then there is the fact that people largely sleep on double bunks that share a metal frame.¹⁰⁸ It is hard to overstate how much this arrangement compromises sleep. When the beds are connected this way, you feel every movement the other person makes. Being “crummy old metal bunks,” they “move and squeak a lot,” which means “you’re going to wake up when your bunkmate gets up or even just moves around.”¹⁰⁹ When people put their weight on the bed, it is not unusual for the flat metal of the pallet to dip slightly and then make a loud pop when the weight is lifted.¹¹⁰ People described strategizing ways to shift position in bed that would not make noise, and even staying put rather than, say, getting up to urinate, out of a desire not to disturb their cellmate. Even the ordinary movement of a restless sleep could prevent a bunkmate from sleeping. One person described an instance when he was in terrible pain from a toothache, “I would wake up in the middle of [the] night, I’m like [makes a face like in pain, moving head around], but I would make sure I wouldn’t toss and turn too much [out of] respect for my cell[mate] . . . so he gets his sleep.”¹¹¹ Disturbing a cellmate or neighbors in the dorms at night can be a serious source of friction “[s]o it was very important to be quiet.”¹¹² The burden on sleep here is twofold: people hesitate to make adjustments that would help them fall (back) asleep, and they experience stress at the thought of disturbing a frustrated, sleep-deprived cellmate. The physiological effects of this stress alone can cut against achieving the relaxed state that sleep requires.

In some prisons, bunks are not attached to one another but only to the wall. Although these bunks “weren’t as sensitive, they definitely still connected through the ladder and everything. So . . . one hundred percent you could feel it” when the other person moved in bed.¹¹³ And with beds connected to the wall, the bed of “the person in the cell next to you” may be connected through the same wall, “so when that person moved, your bed moves.”¹¹⁴ If that person happened to be “a very deep and robust snorer . . . you could actually feel the wall and your bed vibrate when they snore[d].”¹¹⁵

Whatever the structure of the bunks, the person on the top bunk is typically forced to find some creative way to get in and out of bed. There are small ladders attached to the beds—really just “a couple of rungs attached to the bunk”¹¹⁶—but if you use them, “your bottom bunkmate is going to feel the bed move.”¹¹⁷ So people descending from top bunks may instead step on the desk, commode, or other available surface, which might lead them to jostle or even displace the property of their cellmate. The risk this operation entails is particularly elevated in the middle of the night. For this reason too, those on the top bunks might forbear from getting out of bed at night to relieve themselves, even if the need were pressing, simply to avoid provoking conflict.¹¹⁸ Bottom bunks are widely preferred, although people on bottom bunks also need to take care that in moving, they don’t disturb their bunkmates. One person reported that “in the middle of the night, when [he would] go to turn over, if [he] was on the bottom bunk, [he would] make sure to keep [his] hands down low, so [he] won’t accidentally hit [the top bunk].”¹¹⁹ And bottom bunks present their own issues. More than one person described the jarring impression of waking from sleep to find a dark shadow looming over them. By the time they realized it was just their cellmate using the commode, they were wide awake, the effect of an adrenaline rush sparked by fear.¹²⁰

Just about everyone tries in some way to increase the comfort level of their sleeping arrangements. The most common approach is to angle for a second mattress, blanket, or pillow, usually by being the first to snag one left behind by someone being transferred or released. But in every facility, having anything beyond what was issued by the prison—generally one mattress, one blanket, two sheets, and possibly a pillow or pillowcase—is a clear rules violation and could result in a write-up.¹²¹ In many cases, COs won’t bother writing the ticket, but they will likely confiscate the extra items—“if you get caught with doubles, they’ll take it.”¹²² Those who manage to procure an extra mattress might pursue a more effective (if more audacious) approach: stuffing one mattress inside the other. As one person explained, “[T]here’s a seam on the mattress, so I unstitched it and slid the other one in it and then sewed it back up.”¹²³ These measures could make a difference on the margins: after a while, one’s “mattress would be like pancakes. . . . [T]here’s a difference between two mats and one mat for sleeping.”¹²⁴ Still, the difference is only a matter of degree, and even doubled up, “it’s still bad.”¹²⁵ As one mattress-doubler put it, “I was limiting the amount of damage that the regular mattress was doing to me by a small percentage. But when you’re gasping for air, you’ll take any air you can get.”¹²⁶

B. Hunger

Three basic aspects of food in prison contribute to the hunger that, according to my interviews, universally impedes sleep: quality, quantity, and timing. The quality of the food is so poor that people often have to force it down and will often opt not even to try. The quantity is frequently insufficient to induce satiety. And most significantly, the timing of the meals is such that there is typically a gap of at least five or six hours without food between “dinner” and lights out. Every single person I spoke with affirmed that if you have no money on your books for food from commissary, you will go to bed hungry, a condition that makes it difficult if not impossible to sleep. Those with family support will usually have food to eat before they go to sleep. The rest scramble to make money with side hustles (e.g., cleaning cells, making and selling food, doing legal work), or resort to less salutary strategies that could put them at risk (e.g., stealing, gambling, selling sex). The desperate desire not to go to bed hungry appears to be a driver of some of the most dangerous and pathological behaviors adopted by people in prison.

The other obstacle to sleep universally attested to in my interviews relates to food. Together, three food-related issues—quality, quantity, and timing—ensure that those able to eat only what the prison serves will routinely go to bed hungry, a condition that can make it hard to fall or stay asleep. First, the quality of the food served in prison is notoriously poor and often inedible.¹²⁷ One person I spoke to, capturing the general sentiment, described prison food as “garbage, . . . like what they feed a pig. If you put [slop] in a bucket and throw it in a pig’s face . . . [t]hat’s what it looks like.”¹²⁸ So unappetizing is the food served that those with other options will choose to forgo the prison fare altogether. The quantity is also frequently insufficient, and, as a result, even people who eat everything served to them still may not get enough to feel satiated.¹²⁹ One person reported losing “thirty or forty pounds just on the food. . . . It was just very, very, very small portions.”¹³⁰

But in terms of impact on sleep, the most consequential issue is the timing of meals. At some point, I began asking when meals were served. As to breakfast, answers varied from as early as 3:00 a.m. to as late as 8:00 a.m., with the majority reporting breakfast times between 4:00 a.m. and 7:30 a.m.¹³¹ Of still greater significance in terms of sleep is the timing of dinner. Here, answers ranged from 2:00 p.m. to 6:30 p.m., with the overwhelming majority reporting a dinner time between 4:00 p.m. and 5:00 p.m., or earlier.¹³² In most prisons, people appear to be locked in for the night around 9:00 p.m. or 9:30 p.m., with the lights dimmed for sleep around 10:00 p.m. Even those who go immediately to sleep at 10:00 p.m. will have gone at least five hours without eating, and for those who stay up later, the delay without food will be correspondingly longer—what one person called “intermittent fasting before it became fashionable.”¹³³

Those with the good fortune to work in the kitchen have “access to extra food left over.”¹³⁴ Otherwise, thanks to the timing of dinner, “[a] whole lot of people went to sleep hungry.”¹³⁵ To avoid this situation, people try to have food on hand to eat before going to sleep. In facilities with a central dining area, although “you’re not supposed to,” people would “bring the food out [of the chow hall] . . . . Might be rice and beans. I’ll bag that up and bring that back.”¹³⁶ In facilities where food is served in cells or day rooms, people might keep back food from their trays. But in many prisons, being caught with prison-issued food in one’s cell is a rules violation and “sometimes, you’re going to get caught.”¹³⁷ When that happens, even if you are not written up, the food will be confiscated, leaving the problem of nighttime hunger unaddressed.

There is, however, one thing that allows people to stave off hunger: access to commissary (also known as “canteen” or “store”). In every prison, people can purchase a range of items from what is in effect a virtual prison shop, which typically sells a mix of food, personal hygiene products, and other miscellaneous items.¹³⁸ Each facility has an approved vendor, and people fill out forms indicating what they want to buy, with the funds coming out of the purchaser’s prison account. As in society in general, there are all kinds of reasons to want money in prison.¹³⁹ But judging from my conversations—which again, involved people from all regions of the country, diverse as to race, gender, jurisdiction, housing configuration, and security level¹⁴⁰—the single biggest reason is that having money or its equivalent¹⁴¹ allows you to get the food you need so that you do not go to bed hungry. As one person recalled, “When I first [got to prison], I didn’t have as much money coming to me. So there were nights where I would go to bed starving. And you just couldn’t sleep because of how hungry you were, or [you would] wake up early waiting for breakfast . . . just because you’re so hungry.”¹⁴² People described “nights that you would be tossing and turning because your stomach was hurting” from hunger;¹⁴³ “nights of not having food,” when “you [were] so hungry, you[’d] take your hands and push in on your stomach to make [it] tighter, and try[] to fall asleep like that”;¹⁴⁴ and nights of “being so hungry to the point where you can’t even sleep.”¹⁴⁵

In prison, commissaries typically price goods close to or even higher than market rates,¹⁴⁶ yet people who work in prison will earn well below $1 an hour.¹⁴⁷ A key determinant of a person’s ability to buy items from the store is thus whether someone on the outside is putting money on their books or whether they have some other way to make money while inside. I spoke to one person who had a relatively well-paying job with a private company run with prison labor.¹⁴⁸ But in most cases, people who received no funds from family found some side hustle in the prison.¹⁴⁹ People would “make and sell wine,”¹⁵⁰ “homemade . . . cards,”¹⁵¹ or “prison burritos”¹⁵² crafted from ingredients bought from commissary or kitchen workers and sold for a markup.¹⁵³ Or they might “wash other people’s clothes” or “bowls [as a] kind of dishwasher,” “sell their phone time,” “do legal work for people,” or “type papers” for those in school.¹⁵⁴ One person I spoke to “fixed all electronics like headphones, fan, Walkman, TV, radio, anything. . . . Even the officers would bring [him] broken fans and watches and stuff.”¹⁵⁵ Like others with side hustles, he took his payment “[i]n commissary, in food.”¹⁵⁶

Those without family support or some effective way to earn money found other ways to get food or the money to buy it. One person I spoke to, who “didn’t have [any money] for a long time, . . . started gambling and stealing . . . to provide for [her]self.”¹⁵⁷ People “sold drugs to make ends meet”¹⁵⁸ or exchanged “sex for food”¹⁵⁹ or “g[o]t jobs in the kitchen so they could steal.”¹⁶⁰ Others would “panhandle, ask your neighbors, your buddies,”¹⁶¹ or they might resort to a more general appeal:

[T]here were people who had no money and they would stand out by where we get our trays. And they’re asking people, you know, “Oh, do you want the rest of that?” and they’re collecting it, and putting it into a bowl to try to have what they need for that night.¹⁶²

However one does it, the main goal is to have provisions available so that, when 10:00 p.m. rolls around, a person has something to eat before they try to sleep.

Even people with the resources for commissary may sometimes go to bed hungry. People may run out of food before the next canteen day. Or they might have had extra expenses that ate into their stash for the month. COs might have tossed their cell, and in the process rendered whatever food they had inedible—tearing open packages, contaminating their provisions, and so on.¹⁶³ A rules violation sometimes carries the penalty of loss of canteen privileges. People are often transferred between facilities, and it can take time for the finances to catch up, which can mean missing several cycles of commissary while you wait.¹⁶⁴ One person reported being transferred to “a very restrictive facility,” where “you come in [and] you can’t get commissary for the first thirty days.”¹⁶⁵ And perhaps most notably, access to property is contingent on remaining in general population. When people are sent to solitary (a.k.a. administrative segregation or “ad seg”), whether for discipline, protective custody, or suicide watch, they are not permitted to bring any property with them and are highly restricted in what they can get while they are there. Generally, in ad seg, people “don’t have any access to commissary,”¹⁶⁶ so people are completely dependent on whatever food is served. As one person explained, people in ad seg will “get fed [dinner] around 3:30 or 4:00 [p.m.], and they don’t get anything [else] [un]til about 6:30 [a.m.].”¹⁶⁷ To make matters worse, in ad seg, you can’t even “save food from your evening meal to try to hold it [t]o have something to eat in the morning or in the middle of the night”¹⁶⁸ because doing so is a rules violation—“if they find you with that, then they add extra time to the time that you stay in seg.”¹⁶⁹ Whatever the obstacles to accessing commissary, when people are unable to buy food to supplement prison-issue meals, they go to bed hungry, which makes it hard to sleep—even assuming a sleeping environment that is temperate, quiet, and dark, which, as will be seen, prison environments frequently are not.

C. Extremes of Heat and Cold

To get adequate sleep, the body needs to be at ease. Yet for months every year, people in prisons nationwide are forced to try to sleep in sweltering heat or freezing cold. Predictably, this leads to conflict. Men in dorms fight over where to direct the few available fans—battles generally won by those whose threats of violence are most credible. People struggling to get comfortable in their bunks toss and turn, drawing the ire of bunkmates whose own efforts at sleep are thereby disturbed. And cellmates with different sleeping preferences clash over whether to close windows or block vents. It would be too simple to put this down to changing climate. The ambient temperature in carceral facilities is an operational choice. Although average annual temperatures continue to climb, most prisons have no air conditioning in the housing units (even while providing air conditioning in the spaces where COs congregate, including staff lounges and officers’ booths). And in the coldest months, poorly maintained physical plants—broken windows, ineffective or broken heating systems, and so on—leave people too cold to sleep.

In prison, the ability to sleep is greatly impacted by the ambient temperature. In society in general, people who have control over their sleeping environments will adjust their thermostats to a comfortable setting. When two or more people share living space, there may be competing preferences as to the best temperature for sleeping. But it is rare that, given the choice, people would opt to sleep in the freezing cold or in sweltering heat. The reason is obvious: to get adequate sleep, the body needs to be at ease. In conditions of extreme heat or cold, the physical relaxation necessary to fall and stay asleep becomes unattainable.

Apart from those few fortunates who did their time in facilities with air conditioning, functional heating systems, and well-maintained physical plants,¹⁷⁰ my interviewees consistently reported long stretches each year when extremes of heat or cold greatly impeded sleep. Consider first excessive heat. Multiple interviewees from across the country described enduring many months every year when it was too hot to sleep, when it got “so hot and humid that the walls are sweating [and] [t]he floors constantly have that dewiness on them,”¹⁷¹ when you “sweat so much, [i]t wears you out,”¹⁷² “your shirts would be dripping wet. You actually could wring your shirts out.”¹⁷³ As one person succinctly put it: “In the summer, it’s so hot, it’s like you’re in a blowtorch.”¹⁷⁴

Because heat rises, those on the top tiers suffer most. One person described “working in the infirmary,” and “hav[ing] to respond to guys that were living up there. And as you walked up five flights of stairs, it was like . . . [you were] in a sauna all of a sudden, . . . like [a] forty to fifty degree temperature change sometimes. It was ridiculously hot.”¹⁷⁵ In the summer months, the dorms can also get “exceedingly hot”: “If it’s 100 degrees outside, it’s gonna be 110 degrees in the dormitories.”¹⁷⁶ When it was this hot, no one was sleeping. “[All that] body heat. . . . Everybody’s tossing and turning.”¹⁷⁷ One person I spoke to described being “up all times a night.”¹⁷⁸ He would “get up soaking wet. Go to the bathroom, get a cold towel, wipe my skin off. Go lay back down. Wake up an hour and a half later [and] can’t sleep.”¹⁷⁹ Even outside the South, this situation was hardly rare; one person in a federal facility in the Northeast described being “super-duper hot and miserable” during the height of summer.¹⁸⁰ In the South, heat this intense could last six months or more each year.¹⁸¹

Predictably, this degree of discomfort sparks frustration and even threats of violence. In the dorms, prison officials sometimes set up industrial-strength fans, but their placement and direction can provoke anger and even lead to fights as people desperate for sleep struggle to get or retain access to the relief the fans provide. As one person described it, “[e]verybody’s fighting for the fan. The fan has been cocked this way, cocked that way. You got guys waking up in the middle of the night, ‘Man, don’t turn that fan no more,’ which caus[es] a fight [and] now everybody waking up. ‘Man, listen, leave the fucking fan alone.’ ”¹⁸² If tensions did not run as high in the cells, periods of extreme heat still sparked issues. In the heat, people who are unable to sleep find themselves shifting in their bunks trying to get comfortable. The mattresses, as we have seen, are typically wrapped in a kind of rubber¹⁸³ to which bodies would stick in the heat. And as we have also seen, when people are double-bunked, every move one person makes can be heard and felt by the other, especially when the bunks share a single frame.¹⁸⁴ Out of respect, people try to minimize movement as much as possible. But the cost of this courtesy is being forced to remain immobile even amidst the great discomfort excessive heat creates, making sleep even more elusive.

It is not that prison officials are unaware of the heat. More than one person I spoke to described housing units so hot that staff avoided coming inside. One interviewee noted that COs would “sit outside in an air conditioned booth all night, and they would come inside of the dormitory, make their rounds, . . . and then go back into an air conditioned booth while we stayed in the dormitory.”¹⁸⁵ The lack of air conditioning in Southern prisons in particular has already become the subject of constitutional litigation, with Eighth Amendment challenges to excessive heat grounded in the substantial risk of serious harm posed to people with certain medical conditions, the symptoms of which are exacerbated by heat exposure.¹⁸⁶ In Ball v. LeBlanc, a case concerning excessive heat on death row at the Louisiana State Penitentiary (a.k.a. “Angola”), the district court appointed outside experts to monitor the temperature over three weeks in July and August.¹⁸⁷ During that time, the heat index in the facility rose as high as 107.78 degrees Fahrenheit and remained over 100 degrees for a full week.¹⁸⁸ The district court ordered the Louisiana Department of Corrections (“DOC”) to install air conditioning, but the Fifth Circuit vacated that part of the order.¹⁸⁹ In 2018, the case settled, with the DOC committing to providing a minimum of fifteen minutes of shower time each day, ice machines and ice containers, fans, water, icy breeze units, and diversion of cool air from the guard’s pod to the area of the plaintiffs’ cells on any day when the heat index in the plaintiffs’ cells exceeds 88 degrees.¹⁹⁰ Judging from what I heard, whatever else these half-measures might accomplish, they are unlikely to do much to improve the sleep of people in Louisiana prisons during the hot summer months.

Being too cold can also obstruct sleep. Virtually all facilities have heating systems for cold winter months, yet judging from my interviews, excessive cold remains a pervasive issue. In many cases, the problem stems from a poorly maintained physical plant. One person incarcerated in the Northeast told me that, in his prison, the windows had no glass, so “[w]hen it snowed, it snowed [directly into the] room.”¹⁹¹ It was like “sleep[ing] on a bench in Central Park in the wintertime.”¹⁹² Likewise, in one Midwestern prison, thanks to broken windows in the cells, people would wake up “with snow on [their] blankets.”¹⁹³ In a prison in New England, “a lot of windows were broken out” and people resorted to using newspapers to cover windows and block the draft coming in under the doors.¹⁹⁴ In one Southern prison, “the place was so old and rundown” that the “window closing mechanism . . . was just broken.”¹⁹⁵ This meant that “in January and February, the windows were literally stuck open and it was against the rules to stuff blankets or towels in the windows . . . so it was freezing in there all the time.”¹⁹⁶ In a facility on the West Coast, “you could almost see your breath in the air,” and in some cells, “you could even see ice forming on the wall.”¹⁹⁷ One person in the Northeast reported having actual “icicles . . . forming inside the room.”¹⁹⁸

Plainly, under such extremity, it is very difficult to sleep. I asked one person how he slept in the cold he was describing. His answer: “You didn’t. . . . [W]e were bundled up—we put our sweatsuits on. You put [on] your full tans [i.e, the prison-issued uniform] and you’d have your jacket on with your hat and your gloves, and you’d sit there and try to get as warm as you could.”¹⁹⁹ Others painted a similar picture: “[B]asically you’re laying there with this wind that’s blowing constantly through into your cube, and you’re just trying to stay warm. . . . Not very good [quality of sleep]. Because you’d wake up in the morning . . . frozen.”²⁰⁰

As with extreme heat, conditions of extreme cold can spark tensions among people frustrated by their inability to sleep. One person who lived in a dorm in a Southern prison described

power struggles with the older generation [who] wanted the heater on [while] the younger generation didn’t. Sometimes . . . the older generation would win [and] the heater would stay on, . . . which would make it warm in there. So some guys would open their window, but the gust from the cold is coming through the window and [now] you’re cold. . . . [and you’re] trying to convince him, “Hey, man, I’m cold, could you close the window?”,²⁰¹ which could lead to a fistfight.²⁰²

Excessive cold was frequently a problem for people in ad seg. One person explained that, in ad seg, “you don’t get [any] blankets,” even though “it was freezing”—so cold, in fact, that he “had to cut [his] mat open and . . . go to sleep inside [the] mat.”²⁰³ This move did not keep him warm enough to sleep, but “it kept [him] a lot warmer than it would have been otherwise.”²⁰⁴ For those on suicide watch, the discomfort is intensified by the fact that they are typically forced to wear nothing but tear-resistant gowns known as “suicide smocks.” While these garments are made of durable fabric, they are entirely lacking in warmth. People on suicide watch are also denied standard blankets, sheets, and mattresses (although they may receive so-called suicide blankets). The justification for these deprivations is the need to prevent people contemplating suicide from accessing anything they might use to hang themselves. But the combined impact of these conditions leaves people too cold to sleep—a counterproductive effect, given that sleep deprivation appears to exacerbate suicidality.²⁰⁵

D. Noise

Prisons are extremely noisy places. Although the nature and extent of the noise varies by housing configuration, having one’s sleep disrupted by noise is a standard part of the carceral experience. Sources vary widely. The regular nighttime soundtrack may include loud voices, music, televisions, toilets flushing, the alarm clocks of night workers, or people “screaming and hollering.”²⁰⁶ Dorms, housing as many as eighty or a hundred people, are especially loud and chaotic. Some housing units have an ethos of nighttime quiet, maintained by mutual respect (as in honor dorms) or threats of violent reprisal (as in some maximum-security cellblocks). But some pathological sources of noise are not so easily quelled. People with mental illness can be loud at all hours. Some screams may come from victims of violence. And by far the most persistent and resented source of nighttime noise comes from staff who move through housing units at regular intervals doing count or security checks. Some COs try to do their checks without waking people up. But too often, COs on the night shift conduct themselves as if completely oblivious to the fact that they are surrounded by fellow humans desperately trying to sleep.

Prisons are extremely noisy places. In the daytime, the cacophony can be deafening. Although the decibel level drops considerably once people are locked in for the night, the nighttime soundtrack is still far from peaceful. This is especially so in dorms, where as many as eighty or a hundred people may live together in one cavernous room. One person compared it to “being outside at a parade” or “on [a] construction site,” with “a lot of guys having a nightmare, screaming and hollering.”²⁰⁷ In a dorm “people are moving around, people are going to work even in the middle of the night,” and “almost never would there be a night with nobody shouting or nobody making noise.”²⁰⁸ There were times when “people would stay up all night, and they’[d] leave their radio [or TV] on kind of loud, . . . or somebody [would be] partying, drinking, and making a lot of noise, up all night with the music playing.”²⁰⁹ Although the rule—and the strong norm—is that headsets must be worn by anyone watching TV or listening to music, in practice, this rule is often ignored. If only one or two people in a dorm flout the norm, everyone’s sleep is disrupted. And even when people wear headsets, those close by may hear enough of the sound—“like a fly buzzing in your ear all night”²¹⁰—to make it hard for them to fall or stay asleep. One person mentioned sometimes using earplugs to try to cut the noise. But as he explained, “[E]arplugs are tricky in prison. It’s a little easier if you’re in a cell [and] especially fine if you’re in your own cell. But in a dorm, it’s not that comfortable to not know what’s going on around you.”²¹¹

In some dorms, the bathroom is connected to the living space, so people whose beds are nearby may be disturbed all night by others going back and forth, or by flushing toilets and running water. As one person put it, “imagine eighty-seven people going to the restroom at all different times of the night. And sometimes it’[s] just one person going to the restroom starts a chain reaction, because they hear the water flow and everything. And so if you’re by the restroom, it’s not fun.”²¹²

In more orderly dorm communities, there may be less of a problem with other people making noise at night. In one dorm setting I heard about, “there was this common respect that everyone [had] to go to work call in the morning and if you make[] noise in [the] dormitory, somebody’s going to get up and say something and tell you something.”²¹³ This ethos is especially evident in the honor dorms,²¹⁴ where people do their best to avoid disturbing others, creating an environment that can be more “peaceful” and “laid back” with “less drama.”²¹⁵ Yet even still, people invariably move around at night, especially older residents, who tend to be overrepresented in honor dorms and who may need to visit the restroom multiple times a night, creating frequent disruption.

A similar ethos of keeping noise creation to a minimum also appears to prevail in at least some high-security cellblocks housing people serving long sentences. In these units, there is a particular premium placed on displays of mutual respect, and making noise while others are sleeping is considered a strong show of disrespect.²¹⁶ In such units, people may be quieter at night “because they don’t want to have to deal with the [violent] consequences.”²¹⁷ Certainly, even in high-security facilities, extant norms will vary. And outside maximum security, no such collective enforcement is likely, especially when people may have “a release date . . . within five years” and are “more likely to be on [their] [best] behavior because [they] can see the door.”²¹⁸ If others are disruptive at night, “somebody might say something to them [and] at worst it would be a fight. . . . But more likely, it would[] be nothing. . . . People don’t want to risk it by stabbing some guy for being noisy.”²¹⁹

Viewed normatively, threats of violence against noisemakers are hardly desirable. But where no anti-disruption norm operates, a cellblock at night can be extremely loud. One person described trying to sleep in a housing unit with five galleries—a hundred men to a tier—where “individuals [would be] yelling from one gallery to [another] all night.”²²⁰ Another spoke of “people . . . banging on the door, yelling through the doors, talking to each other.”²²¹ Or “[t]here are guys who will have radio battles all night long.”²²² And in “open tiers, . . . you take all that [exposure to people’s sound] and you multiply it, so there’s probably a small window of time at night where there is no noise.”²²³ Other sources of noise may add to the din. One person described “big industrial fans” in his housing unit that “would just blow and make so much noise.”²²⁴ Another spoke of air blowing through the vents so loudly that it sounded like “a jet engine going off.”²²⁵ Some nighttime noise in prison mirrors the ordinary soundtrack of life in any setting. You might hear “different things fall[ing] in the middle of the night” (which “is gonna ring”), “other people’s alarm clocks going off,”²²⁶ “their TVs when they’[re] up at night,” or—in facilities with “stronger flushes”—people flushing their toilets.²²⁷ This is only to be expected in places where people live. But multiplied by hundreds of people, the effect is constant, pervasive interference with sleep.²²⁸

Other sources of nighttime noise reflect the deepest pathologies of American prisons. For example, even where some norm of respectful nighttime silence obtains, people with untreated mental illness may be unable to comply with or even process expectations around noise. As a result, those trying to sleep may find themselves disturbed by screams or other vocalizations coming from those unable to remain quiet. One person described being housed in her first months in prison with someone who was “schizophrenic and [who] was up all night, having . . . arguments with herself . . . like really heated arguments.” As a result, she “could not sleep.”²²⁹ And people with mental health issues need not scream or yell to disturb the sleep of those around them. Another woman spoke of how, in her dorm of 150 people, “there were the people who would get up super early and make noise . . . cook in the microwave, or get their breakfast ready, or be the first ones to shower.”²³⁰ These, as she explained it, were “people with mental illness” who “didn’t want to be bothered at 6:00 a.m. [when the lights came on]” and were rigid about “doing everything before [others woke up].”²³¹ Although this was “an issue of inconvenience” to others, people “just learn[ed] to tolerate that stuff,” because “that’s how they are.”²³² This realization may have alleviated resentment, but it did not help reduce the disturbance at a time when everyone else was trying to sleep.

Mental illness among residents is also one reason why some solitary confinement units can be so unremittingly loud. Judging from my interviews, ad seg can vary from extremely noisy to extremely quiet. Those who experienced the former reported that people would be “screaming [and] . . . kicking the doors,”²³³ or “yelling from door to door, talking to the homeboys down the hall, [and if] somebody thinks they can sing—they wanna sing.”²³⁴ “Everybody’s making noise, can’t nobody sleep.”²³⁵ If it was not the other residents, it was the doors: “[T]he [Secure Housing Unit] was always loud because the doors . . . are metal [and] they slam. Anytime anybody comes through—nurse, counselors, whatever—it’s always a bunch of noise.”²³⁶ As one person vividly described it, “There were these automated doors that would make this loud ‘ahhhh’ slam.”²³⁷ Depending on the location of your cell or who was working, “all night long, you[’re hearing] ahhhh clang, ahhhh clang, ahhhh clang.”²³⁸

Then there are the sounds—the yells, the cries, the screams—produced by victims of violence. Based on my narrow sample, it is impossible to know how frequently this occurs. I did, however, hear it enough to credit that it happens. When asked about nighttime noise, people mentioned “cellies fighting each other,”²³⁹ or “[s]omebody might be attacking somebody [or] somebody might be screaming and hollering in the shower.”²⁴⁰ One person described being awakened one night by the harrowing sounds of a man who, it transpired, was being killed in a nearby cell.²⁴¹

But by far the most persistent, intrusive, and resented source of nighttime noise is that made by staff. In every prison, whatever the housing configuration, COs are expected to come through each unit multiple times a night—as frequently as every fifteen or thirty minutes—to scan each cell and bed and see that all is well. The intended purpose of these rounds (known as “security checks”) is to prevent assaults and suicides, to break up fights, to have staff available for anyone who may need medical attention, and so on.²⁴² In addition, at certain set intervals,²⁴³ COs fan out through the facility to conduct “count,” an event occurring several times over the course of the day—and night. At these designated times, COs count every person in the facility to make sure the number of people inside corresponds to the official tally.

COs’ performance of these rituals means constantly interrupted sleep. Virtually everyone I spoke with recalled being woken up repeatedly at regular intervals by those staff members doing rounds who chose to conduct this task by banging on the doors or bars of their cells, kicking their bunks, or shining flashlights in their eyes, seeking (and sometimes loudly demanding) some indication from the sleeping person that they are still alive.²⁴⁴ People told of COs who would “deliberately pound on the door or flash the light in our face until we move,”²⁴⁵ or who might “take their stick, or . . . the chirp thing for their rounds [i.e., the wand some COs must use to electronically record the completion of mandated security checks], and bang it on the bar or bang it on the door until you move.”²⁴⁶ As one person described it,

[E]very two hours or three hours . . . the officers do security check[s]. . . . They can just kick your door, boom, boom, boom, say, “Move your legs! Move your legs! Let me see you alive!” . . . So any given day, the officers . . . will wake you up . . . . [And] if you sleep with a cover over your head or something, the police will hit your window, boom, boom, boom, “let me see something.”²⁴⁷

Often, people are woken up long before the COs reach their cells—whether because the officers “just slam the doors” when they walk through,²⁴⁸ “walk around with their walkie-talkies or radios turned all the way up,”²⁴⁹ or “have a bunch of different big, humongous keys on their belt, on a keychain that jangle[s] all the time when they come by.”²⁵⁰ In prisons not generally designed for effective sound absorption, when COs “knock on someone else’s door . . . you can hear the echoes from the whole hallway. . . . So you have to cover your ears because there’s always [constant] noise.”²⁵¹

In the dorms, in addition to flashlights in eyes, the kicking of bunks, and the shouts of “let me see you move,” several people described CO behavior reflecting seeming obliviousness to the sleeping people around them. They might “stand by your bunk and just start talking in the radio . . . extra loud,”²⁵² or “bang[] [keys] on that corner of the bed [to wake someone up], . . . [which] pretty much wakes the whole dorm up.”²⁵³ Or a pair of COs “may just come to the dormitory talking to one another. One would be on one side of the dormitory and the other one would be on the other side. And they’re screaming across people while they’re making rounds.”²⁵⁴ One person reported that, rather than counting quietly, some staff would yell out the numbers: “[yells] 12345678!”²⁵⁵ As a result, “you could never get a deep sleep there . . . because there was always noise.”²⁵⁶ And it is not only during rounds that staff on the night shift conduct themselves in ways that interfere with sleep. People also described COs in the officers’ booth laughing and joking without making any effort to keep the noise down. They would be in “their bubble, and they’d have a [fellow officer] come over, and then they [would] talk . . . so loud that you can hear them inside the dorms, you know, and they’re telling the funniest stories [and] [a]ll you hear is them laughing.”²⁵⁷

In fairness, when officers conducting security checks insist on evidence that a person is present and alive, they are only following policy. As one CO I spoke to²⁵⁸ explained,

For me to be able to do my job confidently, I have to see flesh or body movement. So . . . that requires me . . . to knock on the door and wake them up. “Hey, are you alright?” “Yeah, man, can’t you see me?” “No, your bed sheets are up. I have to be able to see you, man. It’s nothing personal. I’m just trying to do my job.”²⁵⁹

And notably, COs’ intrusive behavior on the night shift may also arise in part from their own struggles with chronic exhaustion arising from sleep deprivation.²⁶⁰ As my research has shown, COs too are often sleep deprived, and this is especially true of those on the graveyard shift (typically 10:00 p.m. to 6:00 a.m.).²⁶¹ The resulting fatigue appears to drive at least some of the behaviors that disturb prisoners’ sleep. For example, “most [COs] are constantly talking to [co-workers] to get them through the night.”²⁶²

Even still, the degree of disruption repeatedly described by my interviewees appears excessive, even accounting for institutional requirements and COs’ own exhaustion. Some considerate COs prove this point nightly by making affirmative efforts not to wake people up while doing rounds (with the proportions varying widely depending on the facility),²⁶³ thus showing it is possible to do so. These courteous COs do not yell or bang the bars or kick the bunks or shine their flashlights directly into people’s eyes. They instead “hold their keys as they’re doing count and . . . put the light up toward the ceiling”—using the ambient light to establish that people are present and breathing—“[s]o it’s not really affecting our sleep. And they kind of walk on by, . . . come by real quick, [look in], and take off”²⁶⁴ or they might “just tap real gently enough to make you move subconsciously.”²⁶⁵ Such efforts were not always successful, but they were always appreciated. At least some people reported that, when COs approached count in this way, they were able to sleep right through it. And respectful behavior by COs conducting count had a second sleep-promoting effect: when a CO makes an obvious effort not to disturb, those who are nonetheless woken up are at least spared the feelings of resentment, frustration, and anger so often provoked when COs seemed to be gratuitously inconsiderate—feelings that would in turn impede efforts to fall back asleep.²⁶⁶

E. Light

In some units in some prisons, the lights stay on 24/7. In such environments, deep, restorative sleep can be impossible. In most cases, the lights are dimmed at night, but they never fully go off, leaving it “dark, but . . . not . . . sleep dark.”²⁶⁷ Those who suffer most are people on top bunks, especially those stuck directly below the lights. But the perpetual glow makes it hard for everyone to sleep, leading many to attempt creative strategies for blocking the light. Unfortunately, most such strategies are only marginally successful and quickly run up against several pathological features of the prison environment. In this way, exploring the phenomenon of excessive nighttime light effectively illustrates the way that, in prison, the causes of sleep deprivation are never only about a single isolated factor.

Excessive light also impedes sleep in prison, although, as with noise, the effects vary depending on housing configuration. In the worst cases, people are housed in units where the lights are on full blast 24/7. This is so in some ad seg units, where “very bright lights are on twenty-four hours a day.”²⁶⁸ In general population, in some instances, prison administrators may decide that certain units are too dark at night. One person told me that, in one facility he was in, “they used to cut the lights out” at night, but then there was “a fight and [the COs] really couldn’t pinpoint who did what, . . . so the sergeant actually made us keep the lights on . . . in the dorm. . . . Full strength. All night.”²⁶⁹ Whatever the reason, when the lights stay bright all night, sleep eludes pretty much everyone.

In most housing units in most prisons, the standard practice is to dim the lights, usually an hour or so after everyone is locked in for the night. If this situation is far preferred to round-the-clock brightness, for many people it still remains too light to sleep. This is especially an issue in dorms, in which several lights stay on all night and “it [is] never anything other than like twilight in that big space”²⁷⁰—“it’s dark, but it’s not . . . sleep dark.”²⁷¹ It is worse for people with bunks close to lighted areas of the dorm, typically those near “the guard booth and bathrooms.”²⁷² Cells generally have light switches that turn off the cell lights completely. But the hallway lights, while dimmed, remain on. In at least some places, rather than all the lights being dimmed to the same degree, the lights are calibrated, with some portion remaining at full strength. It might be “half a tube that would still be on, and that could be directly in front of your cell”; understandably, those cells “are the least coveted.”²⁷³ “[E]ven if they turned off the big light, the small light was still there. And so it was never ever dark at all,”²⁷⁴ still “[t]oo bright to sleep.”²⁷⁵ Multiple people reported cellblock night lighting “bright enough to read by.”²⁷⁶ Hallway night lighting was especially a problem for those with cell bars rather than a solid door, because with this setup “[there’s] nothing filtering the light.”²⁷⁷ And even those with solid doors could find their sleep disturbed, because the “lights that stay[] on at night . . . still have a tendency of coming in through the window and shining something in your room.”²⁷⁸

In both dorms and cells, those on bottom bunks have an advantage when it comes to light. Depending on the angle of the bed, “if you’re on the bottom bunk, the top bunk would shed some of the light off,” while “if you’re on the top bunk, you get all the light.”²⁷⁹ People on bottom bunks have an additional advantage: the configuration allows them to “put a sheet under the [top bunk] mattress” to make a tent.²⁸⁰ And assuming the COs on duty are not sticklers,²⁸¹ this move may afford “some type of shade, to shade your face from the actual light.”²⁸² But putting up such tents is against the rules²⁸³ and if the COs are unwilling to look the other way, the tents must come down, letting in light even for those on the bottom bunks.

Those on top bunks suffer most from excessive nighttime light. This is especially so in the dorms, in which some have the bad luck to be in beds directly under lights that remain on all night—so-called “bad bunk[s].”²⁸⁴ People likened the experience of a bad bunk to feeling “like you’re [a] cockroach [under] the light . . . and [you] can’t get away,”²⁸⁵ or like a “rotisserie [chicken]” sleeping under “rotisserie lights.”²⁸⁶ In terms of lighting, the worst moment—mentioned by several people I spoke to—is when all the lights come on first thing in the morning, often as early as 5:00

a.m. or 6:00 a.m. Especially for those on top bunks, once that happens, further sleep becomes impossible—“like trying to sleep with the sun on your forehead.”²⁸⁷

Although the intensity of the intrusion varies, pretty much everyone must find a way to block the light in order to sleep. In the cells, people have somewhat more control over their environment and may employ hacks that involve tweaking the physical plant. When the lights themselves are easily reachable, the most common move is to make paper light covers and place them directly over the lights to cut the brightness.²⁸⁸ Sometimes these efforts could be very involved. One interviewee explained that he would use

a cardboard box—like a Ritz cracker box—you open it and flatten it out. [Y]ou would get three or four of those [boxes . . . and use] tape. Or . . . if you don’t have tape, you could get toothpaste [as an adhesive] and get paper, and that will dim [the light] out a lot. . . . I used to order art supplies . . . like construction paper [to] make a light block at night.²⁸⁹

Another person described an even more audacious approach: “In max facilities, if the light is directly in front of the cell, people have gone so far as to actually paint that side panel [of the light itself] to block out as much [light] as they can.”²⁹⁰

These strategies are not open to people in dorms, where the lights will generally be too high to cover or paint. Even if someone succeeded in getting at the lights to cover them, the COs would spot it immediately. As one person put it, his frustration apparent, “[T]here were nights [in the dorm] whe[n] I literally had to put my coat over my face, just to get some darkness.”²⁹¹ Sleeping with something covering the face appears to be the primary way people try to block the light. Various strategies are employed to this end, but none is without downsides. If you use a T-shirt or a towel, it is likely to fall off in the night. When this happens, the sudden light exposure will wake you up. As one person described it, using a towel “would block the light, but when you’re sleeping [and] moving around, the towel comes off, and you are dreaming about light and then you open your eyes to see just why [and find] it’s not a dream.”²⁹² And if one’s T-shirt or towel falls from a top bunk, there is no way to retrieve it without disturbing the occupant of the bottom bunk, who will feel the bed shifting as you get down and get back up.²⁹³ As we have seen, such maneuvers can create conflict that is best avoided. So, unless you have something else to hand, you are out of luck. If instead you try to cover your head with a blanket, you are likely to be woken up the next time a CO does rounds and insists on seeing your face: “If you slept with a sheet or a blanket [motions with hands over his face/head] . . . to cover your face, [makes knocking motion and imitates CO saying,] ‘I can’t see you. I can’t see you.’ ”²⁹⁴ Some people try to forestall this disruption by sleeping with one bare foot outside the blanket, but during the winter this approach may leave one too cold to sleep. And even should a person find an effective way to cover their face, it won’t necessarily do the trick, because you “could still feel the light.”²⁹⁵

In some facilities, enterprising craftspeople make eye masks—a homemade version of the type people get when flying first class. They may even sell eye masks to others. Using an eye mask appears to be the best way for people on top bunks to reduce the intrusive effects of the lights when they are trying to sleep. But this strategy too has its challenges. One problem is that, in many cases, the masks are made from materials taken from items issued by the prison: fabric from T-shirts, cotton from pillows, elastic from boxer shorts. In every facility, destruction of state property is a rules violation, which means that the mask you may rely on if you are to have any hope of sleeping may also be the basis for a write-up.²⁹⁶ Then there is the fact that, in prison, fully covering one’s eyes (or blocking one’s ears) while asleep can impede a person’s ability to quickly recognize danger. As one person put it,

Sleep is great, but [in prison,] what you don’t want to be is unaware. So . . . wearing earplugs or putting an eye mask on—and actually I did use an eye mask . . . made out of socks—[is not a good idea]. [P]rison’s a place where you want to be aware of your surroundings, and especially if you’re in a dorm environment.²⁹⁷

All this goes to show how, as prisons currently operate, something as simple as trying to block the light to enable sleep quickly collides with many pathological aspects of prison life, including the delicate dance of conflict avoidance, overly intrusive nighttime CO rounds, the perpetual fear of violence, and the enforcement of what prisoner-turned-criminologist John Irwin labeled “chickenshit” rules.²⁹⁸ As with all the causes of sleep deprivation explored in this Part, the sleep-compromising effects of excessive light in prison go well beyond those experienced by nonincarcerated people who may face this issue in their own lives.

IV. Findings II: Meta-Conditions Impeding Sleep in Prison

The conditions discussed in Part III are specific and concrete, of the sort typically considered appropriate targets for more conventional policy reform. But it is also possible to identify a number of what might be called “meta-conditions”²⁹⁹ that also tend to impede sleep in prison. By “meta-conditions,” I mean aspects of the carceral experience that are institutionally pervasive and highly constitutive of life inside, yet so deeply embedded in the life of the prison—so wholly naturalized—that it can be hard to recognize either their destructive impact or the institutional role in their production. In this section, I highlight the sleep-compromising effects of five such conditions: fear of violence, trauma, poverty, overly intrusive rules enforcement, and daily humiliation. As will be seen, there is some thematic overlap here with the discussion in Part III, a function of how, in prison, all aspects of the experience are fundamentally interconnected.

A. Fear of Violence

In prison, the fear of violence is endemic. It compromises sleep in many ways, most profoundly when people are forced into close quarters with others not of their choosing. Whether in a cell or a dorm, it takes time to feel comfortable enough around strangers to fall asleep. People in dorms, who live in company with scores of others, are especially at risk and thus especially apprehensive when arriving in a new environment or when new people enter their unit. But rarely is anyone—even a long-time cellmate with whom one has a good relationship—ever fully trusted, and people pretty much always sleep “with one eye open.”³⁰⁰

It might be imagined that, in prison, a perpetual fear of assault would keep people awake 24/7. This is not the case. At the same time, in all but the most functional lowest-security facilities,³⁰¹ the fear of violence is real, and undermines sleep in numerous ways.³⁰² In my interviews, I asked: Did you ever have difficulty sleeping because you were in close proximity to someone you didn’t know or trust? In response, everyone said pretty much the same thing. In double cells, people sleep little when first encountering a new cellmate; it takes time to be comfortable enough to be able to sleep in close quarters with someone who is basically a stranger. “If you’re just entering a cell with somebody new that you don’t know, if this person moved, or you heard the mattress twitch or anything—any slight movement at all—your eyes are wide open.”³⁰³ But eventually, “you kind of get comfortable with the person you’re with.”³⁰⁴ As one person described it, when assigned to a cell with “a roommate that [he] did not know,” at first all he could think was, “I do not want this guy to go crazy and try to kill me in my sleep [or] to take my stuff in my sleep.”³⁰⁵ It took “a few days to a week to really feel like okay [signals with hand lowering]; the tension is okay and I can sleep.”³⁰⁶ It is not unusual for people to spend years in the same cell with the same bunkmate. In these instances, this initial interference with sleep is brief enough not to be especially significant. But it is also not uncommon for people to be frequently transferred between cells, units or institutions, or to have a rotating series of cellmates. For those in this situation, the disruption to sleep from being in close quarters with others neither known nor trusted can be considerable.

In dorm settings, any influx of new people generates an even greater sense of insecurity.³⁰⁷ Because of the open setup, “you had to watch your back”³⁰⁸ because “most people know that when a person is asleep, that’s his most vulnerable time because he can’t see the attack coming. And there have been a lot of guys who have been attacked in their sleep.”³⁰⁹ New arrivals are thus always viewed with suspicion, and people will be hesitant to sleep deeply until they can be sure of their own safety:

You’re sleeping with one eye open and one eye closed because you don’t know who you’re in a dormitory with . . . . [I]f a new guy is coming to [the] dorm, everybody’s kind of leery of who this cat is. Everybody’s watching him [to] see how he’s moving, what he’s about. And then it doesn’t happen until you begin to talk to him. You realize, okay, he’s cool. I can go to sleep.³¹⁰

Depending on the character of the dorm, people may never feel secure enough to give in to deep sleep. Or they may band together with trusted associates and sleep in shifts, taking turns to watch over each other to ensure that all is well. I heard of this strategy from two people housed in dorms in two very different jurisdictions, one in the Northeast and one in the South. As one person who did his time in the South described it:

[I]n a dormitory setting, so you have a lot of chaos going on. So you might have four guys [who are] really close. And they’ll be like, “Man, look, we’re gonna go take a nap [so] keep an eye out on things,” [which] means, watch over us. So they do for a certain amount of time. . . [a]nd then . . . the guys [who were watching] are going to go to sleep, and [the] other guys [will] stay up.³¹¹

The fear of violence also compromises sleep in other ways. In prison, particularly in high-security facilities, people who are perceived as weak are especially vulnerable to being victimized.³¹² In dorm settings, where people must sleep out in the open, the stress of feeling oneself to be at risk from innumerable potential assailants can make it very hard to sleep. I asked people this question: Did you ever have trouble sleeping because you felt physically vulnerable or were afraid for your safety? In response, several told the same story: they had gone into prison young or physically diminutive and were only able to gain a sense of security by showing they could fight. As one person described their experience, “I went into prison at 18 years old, 185 pounds, and a very effeminate male. So . . . I was beaten up pretty badly a couple of times [but then] I learned how to very quickly overcome that by becoming the person that nobody wanted to mess with, whether I could back it up or not.”³¹³ For those who did not manage to build a reputation of this sort, the ongoing sense of vulnerability would make it very hard to sleep.

Then there are the sleep-disrupting effects of knowing that others around you may be targeted for violence. One man I interviewed lived for twelve years in a dorm setting in a Midwestern prison. Although he did not feel himself to be at risk,³¹⁴ he described being assigned a bunk adjacent to that of a “young kid” who was repeatedly sexually assaulted after lights out.³¹⁵ Even if one were not inclined to come to the defense of someone being attacked (and in prison, there are many good reasons not to intervene, including the desire to avoid becoming a target oneself), people need to be able to achieve some measure of physical relaxation in order to sleep. In environments where such violations are possible, the fear of victimization will be a perennially disruptive force, whether the potential victim is you or someone in your vicinity.

For those in two-person cells, even when you know someone well, trust in a cellmate can only ever be provisional. “In a double cell, even if you become friends with a person, there is still that unsurety of safety. So even the heaviest sleeper [is] sleeping with one eye open.”³¹⁶ This is because “no matter how high of a level of trust you may have for somebody inside prison, you don’t ever [fully] trust them. So if you hear somebody moving in the middle of the night, you’re paying attention, whether it’s consciously or subconsciously.”³¹⁷

Although most of the time, most people in prison will not be assaulted while they sleep, the fear of violence, including sexual violence, remains pervasive and never wholly disappears.³¹⁸ Living with such insecurity, in an environment where violence is an ever-present possibility, means that when people sleep, they sleep “light”: “In prison, there is no way in hell you should ever sleep [so] hard that a man can come in the cell and leave and you not know.”³¹⁹

This is especially the case for those who are gang-involved or who have affiliations with groups that may require them to engage in collective violence at a moment’s notice. When people in prison talk about “sleeping with their shoes on,” this is what they mean. For example, in the federal system, your state of origin may dictate who you “run with” and thus on whose behalf you may be expected to fight. As one person who spent years in a federal penitentiary explained, for those in this situation, there is no sleeping until the cell doors lock for the night: “[Y]our homeboys, everybody’s on duty. You gotta keep your boots on and just sit there until the CO says it’s time to go lock the doors.”³²⁰ And in the morning, the moment “the doors pop, you have to be awake because somebody might run in the cell [and attack you] because something happened in another unit with somebody from the same state you’re [from].”³²¹ Those committed to this arrangement learn not to let themselves sleep deeply so they can always be ready to act quickly if need be.

Those who lack such commitment but who are nonetheless expected to participate in collective violence can lose sleep for different reasons: the stress of being unsure whether to respond when the moment comes, and the fear of retaliatory violence if they opt not to join in. One of my interviewees described exactly this conundrum:

I had some friends in gangs. . . . They would get into situations where it’s like, “Yo, we’re about to move on this dude. . . . [Y]ou a Blood just like we Blood[s] [so] you gotta move with us.” And I see my friends sleep uncomfortable. Because it’s like, man, I’m going to school. I got something good going on. I’m trying to leave that [and] change my life. But if I don’t move with them, . . . I become one of the enemies. There [are] so many different factors . . . to this life in [prison] that sleep is not something that comes by easy.³²²

As this person explained it, given all the stresses of life in prison—including the pressure from the gangs and the dangers people may face if they try to remain unaffiliated—“If you’re able to sleep in [prison], you’re almost looked at as [an] extra-terrestrial. You must be [an] alien. No seriously, something is wrong with you if you’re able to sleep [inside].”³²³

B. Trauma

People in prison are exposed to countless traumatic events, whether experiencing them directly or as witnesses to them. In my interviews, people described seeing people stabbed or beaten to death, flayed open, burned alive, or committing violent acts of self-harm. Experiences like these can leave people terrified for their own safety and may also interfere with sleep as people struggle to process psychologically and emotionally what they have witnessed. Not everyone has this reaction to witnessing senseless violence; many reported becoming inured to the brutality around them. This desensitization may serve a protective function, allowing people to survive impossible circumstances—and perhaps to sleep a little more easily. At the same time, it reveals a core mechanism by which the carceral experience alienates people from their own humanity.

Judging from my interviews, the experience of trauma further compromises the quality and quantity of sleep that people get inside. This dynamic, moreover, is self-reinforcing, as those who sleep poorly after traumatic experiences appear to be more likely to develop post-traumatic stress disorder (“PTSD”) and other mental health conditions³²⁴—conditions that, among other unwelcome effects, may in turn impede sleep. True, poor sleep is a diagnostic component of many mental health disorders,³²⁵ sometimes raising the question of which came first. But in the case of PTSD, the evidence suggests that sleep disruption itself—in particular, disrupted REM sleep—may provoke the development of PTSD following trauma exposure.³²⁶ This possibility is especially concerning given that both persistent trauma exposure and systematically disrupted sleep are hallmark features of the prison experience.

In my interviews, I heard countless stories from people who witnessed deeply disturbing events while incarcerated. These included seeing “somebody get beat to the point where they’re laying in a puddle of blood and they have to be carried away because they can’t walk”;³²⁷ seeing “a kid get slammed on his neck and, then you see him getting a white sheet over his body and he’s getting carted off the unit. Or somebody leaking, somebody’s white T-shirt is now red”;³²⁸ seeing “one man that was literally cut open from the bottom of his chin to the top of his hips, cut and flayed wide open because they were looking for something they assume that he had swallowed”;³²⁹ and seeing “another guy running down the tier with his eyeball bouncing off of his cheek.”³³⁰ At some point, trying to process the weight of all these accounts, I began asking some version of this question: Did you ever find it hard to sleep because you were traumatized by things that you had seen?

For those who responded in the affirmative, the answers suggested two ways that witnessing traumatic events can interfere with sleep. First, there was the sleep-disrupting effect of the fear engendered by exposure to terrible violence. Seeing the awful things that happened to others made it hard to sleep, “knowing that any given time somebody can choose me as their victim.”³³¹ This effect is of a piece with the fear of violence previously explored. But there was also a second theme that emerged in the answers: the sleep-disruptive effects of the psychological or emotional processing triggered by exposure to trauma, as when “you just keep seeing that same image over and over and over.”³³² One person, recounting a particularly vivid and distressing event, effectively captured how the brain’s need to process can make it hard to sleep:

[S]ee[ing] guys have . . . padlocks put on their doors, flammables thrown in on [them], and one guy had been burnt alive. I witnessed this man, that’s gone from someone 6’1”, 6’2” . . . [to] not even eighteen inches long, you know, charcoal, just burnt alive. . . . [W]hen you’re seeing all of these things . . . [s]leep is hard. . . . [Y]ou’re trying to sleep, but you have all these things going on in your head, and any little sound that you hear, you[‘re] coming out of this sleep.³³³

Not everyone connected the trauma they experienced to difficulty sleeping. But it is hard to imagine that the quality of one’s sleep would remain unaffected in an environment where such exposure is common.

At the same time, many people reported that the distressing things they saw while they were in prison did not affect their ability to sleep. Over time, they instead became inured to the violence and abuse to which they were exposed:

[While in prison] I saw a lot of violence. But it became, when you see it, you just see and you don’t see, you just sort of get out of the way . . . [and] you keep it moving. Prison teaches you to literally stay in your lane. . . . If it doesn’t affect you, oh well.³³⁴

Whatever the example may be—seeing somebody cut, seeing somebody stabbed, seeing an officer beat on somebody, break their arm, or whatever it may be, you get so desensitized that this is natural.³³⁵

Eventually you get numb to all the stuff that happens.³³⁶

It may be that these individuals remained genuinely unaffected emotionally by what they saw and experienced. But the terms they used to describe their state of mind, which included becoming “numb” and “desensitized,” suggested their recognition of the defense mechanisms they were relying on to get through. To experience a state of equanimity in such a traumatizing environment, the level of denial would have to be considerable. If one’s sleep is thereby protected, it may also indicate an alienation from one’s own moral core, a feature of prison’s dehumanizing effect that carries its own psychic and emotional costs.

C. Poverty

Having money in prison does not guarantee a good night’s sleep. But it helps. There are innumerable items that those with money can procure, many directly from the commissary, that may enhance sleep inside: fans to drown out noise, extra clothes for cold nights, high-quality eye masks, softer sheets, and warmer blankets, not to mention sleep-inducing drugs available on the prison’s black market. And those with money can stock up on commissary items, ensuring they will not go to bed hungry. We have already seen that people who lack family support or are otherwise unable to earn what they need may opt to engage in survival strategies that put them in danger, including stealing, gambling, or selling sex or drugs. The official practice of paying incarcerated workers nominal wages—in those jurisdictions that pay them at all—can leave the least well-off people in prison forced to choose between forgoing items that might improve sleep or adopting strategies that could put them at risk of serious physical or sexual harm.

Most people enter prison without financial means.³³⁷ Although most institutions require prisoners to work, the hourly wage—when paid at all³³⁸—is a pittance: on average, between $0.14 and $0.63 an hour.³³⁹ Depending on the prison, some people may secure positions with the private industries that operate behind the walls. But even in such cases, although the hourly wage may be considerably higher than the standard prison wage, it will remain far lower than the federal minimum wage³⁴⁰—typically somewhere between $0.33 and $1.41 an hour.³⁴¹ Some fortunate few can make even more: one person I spoke to trained call center agents for a private company. He reported making $285 per month (roughly $1.80 an hour), in contrast to the kitchen workers in his facility, who made around $30 per month (roughly $0.19 an hour).³⁴² But these relatively well-paid opportunities are rare,³⁴³ and as we have seen,³⁴⁴ if people are to have access to money while in prison, they must either get it from loved ones outside³⁴⁵ or find off-the-books ways to earn it.

Although everyone in prison, regardless of financial status, faces serious obstacles to getting adequate sleep, access to money can help improve one’s odds. Many people mentioned buying fans from the commissary, “the whole point [of which is] to drown out the noise from the tier.”³⁴⁶ As one person explained, echoing an experience shared by many, “I could not sleep without my fan. I pretty much set it up right by my head . . . to help drown out the other ambient noise . . . outside the cell.”³⁴⁷ But fans that do the trick do not come cheap in prison—the most durable of them can cost up to $40.³⁴⁸ Given the extremely low wages paid to incarcerated workers, a fan could cost almost a month’s earnings.³⁴⁹ And if a person still chooses to buy one—which they well might, if it means the difference between sleeping and not sleeping—they would have little left over for other necessities like food or basic hygiene products.³⁵⁰

Money, or the lack thereof, impacts sleep in other ways. Those with resources to spare can buy extra clothes—sweatshirts, warm socks, etc.—to help keep themselves warm on cold nights.³⁵¹ They can buy softer sheets³⁵² and warmer blankets. They can buy marijuana, heroin, Seroquel, or other sleep-inducing substances on the prison’s black market,³⁵³ as several of my interviewees reported doing.³⁵⁴ If they are not themselves skilled with a needle, they can pay someone to make them a top-shelf eye mask.³⁵⁵ They can buy a second fan to cool their bodies on hot nights. And if they use a CPAP machine, assuming power strips are allowed, they can buy one³⁵⁶ to guarantee themselves access to a plug without risking getting into a fight over control of the wall sockets with a cellmate or others in the dorm. These advantages may seem minor. But for people in prison, they may mean the difference between eking out a few solid hours of sleep or being consigned to sleepwalking through another day.

Still, when it comes to being able to sleep, the primary reason to want money or its equivalent is to ensure you have ready access to food. As we have seen, “if you don’t have the money, you can’t eat, and . . . you can’t

sleep if you’re hungry.”³⁵⁷ As one person explained, if he didn’t have much money on his books,

I might not have been able to buy as much canteen [as I needed], so I would go through it. . . . When you’re hungry it’s hard to budget it and make it through. Like one night . . . I’m trying to go to sleep and I’d be hungry so that I would go in and eat some [food items that had been] budgeted for later on [in] the week. But I just I had to eat it then. . . . Eventually, though, when I started getting more money, [hunger interfering with sleep] wasn’t a factor.³⁵⁸

The lengths to which people will go to get money for food are a testament to the urgency of the need. One person I spoke to, who had no family support, “started gambling and stealing while [she] was in there to provide for [herself],” because “[o]nce you[’re] full, you can sleep better.”³⁵⁹ It is hard to overstate the desperation that would drive a person in prison to engage in either of these strategies. Someone caught stealing may earn a violent reprisal from the victim of the theft.³⁶⁰ And gambling is equally risky. It is a sure-fire way to get into debt, and in prison, the penalty for nonpayment of debts is often physical violence or forced sexual servitude.³⁶¹

Another risky, last-resort strategy is “two-for-one,” the prison loan-sharking practice whereby someone with a load of commissary will provide you with something you want—say, a candy bar, a bag of chips, or a soup. The catch is that, when the next day for canteen rolls around, you have to pay back double what you borrowed—two candy bars, two bags of chips, or two soups. If you can’t, the quantity owed doubles again. This is another way people in prison can get into debt, which, again, can result in violence or pressure for sex. “[Y]ou have dudes who are wealthier than others who max out every canteen . . . , and they sell stuff to guys. ‘Well I’ll give you one for two back.’ ”³⁶² Or “[t]hey won’t tell you it’s two-for-one. [T]hey’ll say, ‘Here’s a box of [cookies].’ Then . . . [the] next week you owe double, . . . they’d say, ‘[W]ell, we could exchange it for sexual favors.’ That’s how they were trapping these young kids coming in.”³⁶³ According to my interviews, the desire to avoid going to sleep hungry is a major reason why people risk putting themselves in this position. Note that at least some of this felt pressure to access commissary, which can drive people to act in ways that could put them in serious danger, would be alleviated if prisons simply made decent food available to everyone in the evenings before lights-out.

These dynamics mean that those without money—the prison’s poorest, who lack outside support or the ability to accrue funds while inside—experience appreciably worse conditions than those with means. To some, this situation may seem unproblematic, just how the world is. But as the example of sleep makes clear, what is at stake is not simply differential access to luxury items. Sleep is a basic human need, and insufficient sleep causes considerable harm to physiological, psychological, emotional, and cognitive health. To the extent that poverty leaves some people less able to mitigate the sleep-disrupting aspects of the prison environment, poor people are experiencing a harsher, more destructive punishment than that experienced by those with access to funds.

D. Overly Intrusive Rules Enforcement

In prison, virtually every aspect of a person’s life is governed by rules enforced by COs. Many of the strategies people adopt to try to improve the quality of their sleep run afoul of these rules. This situation leaves people forced to choose between breaking the rules—and possibly getting written up, but perhaps eking out slightly improved sleep—or following the rules and forgoing small comforts (an extra mattress, a light cover, some food held back from a tray to eat before lights out) that might help them sleep. The stress involved in making this choice itself compromises sleep, especially for those who opt to roll the dice and break the rules. Compounding the problem is the fact that penalties for minor rule violations of the sort at issue here often include loss of commissary or yard privileges, thus depriving people of access to food and exercise—two pathways for improved sleep available to those in prison.

Pretty much every aspect of a prisoner’s life is governed by rules.³⁶⁴ Enforcement authority belongs to line officers, who, when they witness a rules violation, may issue a ticket (also known as a “shot”). The most extreme violations, which generally involve physical violence, may earn the perpetrator delayed release and even additional charges. In cases involving less serious offenses, penalties are less severe but still deeply undesirable. They may include time in ad seg, lockdown in one’s own cell, or temporary loss of yard time, commissary, phone privileges, or even shower access. As with law enforcement on the outside, COs have considerable discretion when enforcing prison regulations. As one person put it, discussing light covers, “[M]aybe when you go to sleep at night, the CO doesn’t care [so] they let you do it. But then the next shift comes on, and then they’ll bang on the door, [and] you’ll take that down.”³⁶⁵ If the violation involves possession of contraband—which generally means any item not directly issued by the prison or purchased directly from the commissary—a CO may choose only to confiscate the offending item, or they may confiscate it and issue a write-up, potentially exposing the offender to some form of penalty.

Many rules enforced through this system serve valid institutional purposes; few people would quarrel with prison prohibitions on physical violence or the distribution of narcotics. But innumerable other “chickenshit rules” penalize conduct that is less obviously necessary to maintaining institutional order.³⁶⁶ As Irwin has observed, “[M]any of [the facility’s] rules intrude into prisoners’ ordinary practices and significantly interfere with their attempts to carry on their already excessively reduced life routines.”³⁶⁷ In other words, people inside may find themselves at risk of punishment simply for trying to make intolerable conditions slightly more bearable.

This effect is certainly evident in the context of sleep. One person I spoke to clearly captured this dilemma. As he explained, “[I]f the light was right in front of my window, I would cover it up. And then that’s usually when the CO would bang on the window, . . . but then I would just take it down and put it right back up. . . . I was basically being forced to break the rules to be able to sleep.”³⁶⁸ The use of light covers is only one example of a

standard strategy for improving sleep that violates prison rules and can expose people to sanctions should they get caught.³⁶⁹ Among other things, it is generally against the rules to:

Drape a sheet from the top bunk to curtain off one’s bottom bunk (a.k.a. make a “tent”);³⁷⁰
Cover the vents³⁷¹ or windows;³⁷²
Shower outside designated hours (especially on cellblocks);³⁷³
Possess an extra mattress;³⁷⁴
Possess an extra blanket or sheet;³⁷⁵
Destroy state property (including the shorts, T-shirts, or stuffing from mattresses or pillows used for making eye masks);³⁷⁶
Remove food from the dining hall;³⁷⁷
Store food from the dining hall in one’s cell;
Hold back food from trays.

Rules thus prohibit precisely the strategies that many people use to try to improve the quality and quantity of their sleep in the face of excessive light, excessive heat or cold, uncomfortable beds or inadequate bedding, and insufficient food. To compound the problem, the penalties for such violations may include loss of commissary privileges and loss of yard time. Yet, as we have seen, without access to food, people will often be forced to go to bed hungry, a state that considerably impedes sleep. And for many people, vigorous exercise is a way to “exhaust themselves, [so it’s] that much easier to go to sleep at night.”³⁷⁸ Without access to the yard, this strategy is more difficult to operationalize, and sleep becomes that much harder.³⁷⁹

The perverse structure of this arrangement tells us everything we need to know about the moral orientation of the carceral system toward those inside. First, the prison operates in innumerable ways to undermine prisoners’ ability to sleep. Then, COs police the housing units to ferret out any items beyond each person’s allotment—items they may have expended considerable effort to assemble to try to improve their sleeping environment and perhaps increase their chances of getting a little more sleep. These items are then confiscated, a move that strips the possessor of the benefits, however slight, the seized items may have offered. COs are then empowered to impose penalties likely only to compromise still further a person’s ability to sleep. It is tempting to call this system Kafkaesque, except that, for Kafka, the bureaucracies that outrage and dehumanize are so infuriating in part because their procedures have no moral valence and are simply manifesting their own internal imperatives. In the prison, the cruelty of the process just sketched is of a piece with the callous indifference with which the institution and its COs seem to regard the daily hardships faced by those in their custody.

For those on the receiving end, COs’ interference with their efforts to improve the sleep they get may seem spiteful and even sadistic. And in some instances, this impression may be apt. It does, however, bear noting that COs’ decisions as to how to exercise their considerable discretion vis-à-vis rule violations may also be shaped to some degree by the institutions’ own pathological impact on the COs themselves—including, ironically, the chronic sleep deprivation that is a standard comorbidity experienced by those in the role.³⁸⁰ When COs are sleep deprived—a condition almost certainly exacerbated by the host of other comorbidities to which COs are disproportionately prone, including depression, alcohol overuse, PTSD, and suicidality³⁸¹—they become less able to treat the incarcerated with consideration and sympathy.³⁸² To the extent that prisoners’ sleep is compromised by exposure to rules unevenly and unpredictably enforced by people who at times seem incapable of basic human sympathy and understanding, the resulting frustration may be less a product of individual spite than the broader operational logic of a system that is blind to the humanity of all parties, incarcerated and COs alike.

Yet however incapacitated COs may be by the hours they must keep and the conditions in which they work, it is the prisoners who are forced to daily navigate a challenging context in which any efforts they make to alleviate conditions of extreme discomfort are liable at any moment to be nixed by those COs who for whatever reason are not inclined to look the other way.³⁸³ As a consequence, not only do people in prison expend considerable energy strategizing how they might improve their sleeping environment, but a good part of this effort turns out to involve a constant process of weighing the benefit to be gained from a rules violation against the odds of getting caught and incurring a penalty. As I wrote in my field notes after one interview, “even if you weren’t going to get written up, even if the staff weren’t going to give you a ticket for an extra blanket or an extra mattress or whatever, there’s always the stress of knowing they could do it.”³⁸⁴ In this situation, “you were always trading the ability to be slightly more relaxed and not able to sleep”—because, in a bid to reduce stress, you opted not to avail yourself of the strategies that might help make sleep possible—against “put[ting] yourself in a position where you were stressed about whether you were going get into trouble just to improve [your] sleep a little bit.”³⁸⁵

The stress this situation occasions can be both considerable and relentless. For example, as one interviewee reported, there were days when, as frequently happens, the people on his tier were not able to shower:

And you don’t want to go to sleep sweaty and dirty [because] that really impedes the ability to sleep. [So] you would have to find a way to sneak out of your cell to get a shower just so you would be able to sleep. So how would you do that? Well, if there was a time when tier 1 was supposed to be on the floor and the mezzanine, [and] tier 2 is supposed to be in their cells, you might sneak out of your cell even when you were supposed to be in it. Or you would try to get them to open your cell door for some reason and then grab a shower.

In other words, “it was hard to sleep when you weren’t clean and [there was] also stress involved in trying to get a shower when there is no time available for you to do it.”³⁸⁶

Note that the goals driving this stressful negotiation of prison rules—sleeping, eating, keeping warm, showering—are at once basic requisites of human functioning and integral to maintaining one’s own humanity and sense of self. And, of course, the frustration occasioned by the enforcement of what are widely experienced as petty rules is also likely to interfere with the ability to get restful sleep.

E. Daily Humiliations

Every day, people in prison receive multiple reminders that the system regards them as undeserving of consideration and respect. At night, as we have seen, staff members conduct count and security rounds often without seeming to care whether they wake up the people sleeping around them. And similar demonstrations of callous disregard persist all day long: the incarcerated find their health problems minimized, their reasonable requests peremptorily denied, and their valid grievances ignored by prison officials at all levels. These routine humiliations understandably leave people frustrated, humiliated, resentful, and outraged. These feelings do not simply dissipate once an interaction is over. They persist and fester, making it even harder for people already coping with countless sleep-impeding obstacles to fall or stay asleep at night.

On a daily basis, people in prison are treated in myriad ways as if they are morally worthless. One manifestation of this attitude recurs nightly, when many COs appear to make no effort to do their rounds quietly. Instead, many behave as if the beds around them are empty, as if they are not surrounded by human beings who are trying to sleep—as if, as one person put it, “[T]hey don’t see you [or] your head right by the pillow that [they]’re standing next to.”³⁸⁷

Nighttime noise by staff doing rounds wakes people up, thereby directly interfering with prisoners’ sleep. But there is a second, more subtle sleep-disrupting effect of this intrusive conduct: it forces the incarcerated to perpetually confront the disdain in which they are held, an experience that can spark feelings of helplessness, frustration, and rage that themselves impede sleep. Imagine how hard it would be to fall asleep if, every night, thoughts like these were swirling around in your head:

So on top of already fighting to get some type of sleep, those little couple of hours that you may get, then it’s interrupted by [the COs] . . . . [A] lot of them . . . have no type of empathy at all. . . . [Y]ou’re asleep [and] they don’t care. You’re an animal. This is the[ir] house [so] you got to do what they say, when they say, how they say.³⁸⁸

[F]rom the officer’s perspective, they were . . . told like, “[H]ey, look, your job, and the way this job is supposed to be done, is more important than any of these inmates’ sleep.” W]e were . . . pieces of trash. We were manipulators, and we weren’t to be trusted so who cared what we thought and . . . that’s what [we] get for being in prison

It’s a power issue. You ask them to keep it down or something like that, they’re gonna look at you like, . . . ‘[W]ho the hell are you? Yeah. Right.’ And they’ll spite you [by being] even louder. . . . ³⁸⁹

As one person I spoke to observed, “[S]leep is more than just laying down and resting your body. [To] sleep, your mind needs rest as well—being able to actually go to sleep and not have to worry about anything, [to] just be comfortable in that moment and let your body and . . . mind rest.”³⁹⁰ Far from promoting a restful mind, daily humiliation seems far more likely to

achieve the opposite. Compounding this effect is the way those in this position must swallow these feelings—however justified—because to express them would be to court retaliation that among other hardships would only guarantee still further sleep disruption.³⁹¹

The ethos of contempt and callous disregard reflected in the behavior of many COs on the night shift also manifests in multiple ways during the day. Staff ignore the needs of those in their custody, refuse their reasonable requests, and target them for abusive treatment, whether out of malevolence, caprice, or poor judgment sparked by their own intense sleep deprivation.³⁹² Medical personnel dismiss prisoners’ symptoms, deny requests for x-rays or specialist access, and pass them off with ibuprofen and pamphlets. Access to loved ones, both by phone and in person, is highly restricted, often for no reason other than official caprice. Life is constantly governed by “chickenshit rules,” which can seem designed more to demean than to address genuine institutional needs.³⁹³ Grievance procedures are generally byzantine, and complaints, however meritorious, are almost always denied.³⁹⁴ When disciplinary infractions require a hearing, these hearings often feel like shams, with those officials serving as adjudicators virtually always siding with the CO who wrote the ticket.³⁹⁵

The relentlessness of these humiliations can take a deep emotional toll, leaving people feeling frustrated, resentful, disrespected, and outraged. Such feelings are not conducive to sleep, to say the least. In my interviews, I asked people what they thought would have to change to enable people in prison to get adequate sleep. Multiple people spoke about the dehumanizing treatment that they experienced daily, the constant reminders of their own powerlessness, and the pleasure staff seemed to take in ignoring their needs. One interviewee described what this treatment looks like in real time:

[For example,] I gotta go to school. Now I gotta ring the doorbell on the cell one thousand times for this individual to let me out. When you coming back from school [you might] want to use the restroom, but the officer got me out here waiting forty-five minutes. When we’re going to yard, we[’re] delay[ed] forty minutes and now when we get to the yard, instead of getting an hour and a half, we get thirty minutes in the yard. . . . It’s just little components of them treating us like [we]’re not human beings.³⁹⁶

Or consider this account of a cell search:

When [COs] come in to search your cell, they don’t just nicely pick things up and put them back down. It looks like a hurricane ran through your room. They literally flip your bed over, your pillow is on the ground, your sheets are on the ground, your stuff gets mixed in with your bunkie’s stuff. Your clothes are all over the floor, your food’s mixed everywhere. Some [COs] will take the jelly and just squeeze it on your bed for no reason. . . . [T]hey come in and they destroy. That’s what they do.³⁹⁷

When this is your daily experience, when nighttime rolls around, the state of relaxation requisite for sleep remains elusive. One woman I spoke to was especially eloquent on this point. What she said is worth quoting at length:

[I]f we’re constantly having these bad interactions, these bad experiences, and the culture isn’t conducive, or it always . . . undermine[s] you and . . . makes you less than and makes you feel worthless and all these other things—you’re not going to sleep like oh, I conquered the world today. No, you’re going to sleep feeling like shit, feeling even worse than you’ve felt. . . . I go to the freaking clinic to get medication for . . . a toothache and I get treated like a fucking drug addict. And [I] don’t even get any Motrin, so I’m not going to sleep feeling too good. . . . And then when you’re constantly looking at me and talking down to me as if I’m less than you, [as] if I’m not a person, . . . all those things don’t make for a good night’s sleep. You don’t feel good at the end of the night. . . . [A]nd not only that, but the setting in general . . . doesn’t make it conducive for family reunification. They make it even harder for you to have relationships [and] more so [for] women. [T]he women’s prison, geographically where it’s placed, is in the middle of nowhere. So all the people that often are coming into the prison settings live so freaking far away. . . . [T]hese inner cities are so far away from this rural fucking place in [location of prison] in the middle of nowhere, that it makes it hard for you to have visits, to have a constant contact with your family or the . . . how much is it? Fifty cents a minute a phone call? When we’re making one dollar a day on our freakin’ wages? Like, seriously? So all these things just work to produce even more stressors and, as we all know, when I’m super stressed throughout the day, all that’s happening at the end of the night when it comes time for me to sleep is these things [are] replaying in my head . . . and making me feel even more incompetent and worthless.³⁹⁸

In short, sleep will not come easily to people who are constantly humiliated.

Like those conditions canvassed in Part III, the conditions discussed in this Part contribute significantly to the inability of people in prison to get adequate sleep. If there is a difference to draw, it lies in the pervasiveness of these “meta-conditions,” the extent to which each is woven into the carceral project. While the more concrete and specific conditions described in Part III appear tied to policy decisions concerning prison administration and operations, the conditions described in this Part seem to arise directly from the culture and ethos of the American prison. Yet, as far as moral valence goes, the distinction I have drawn between the more concrete sleep-impeding conditions and what I have labelled “meta-conditions” may not much signify. Whatever the moral orientation of individual COs, all the conditions that systematically compromise the potential for sleep in prison reflect a system shaped at its core by a callous indifference to the well-being of the incarcerated, a blindness to their humanity, and a refusal to accord those in custody the basic consideration and respect owed to any fellow human. This moral injury is part of the daily experience of imprisonment. And as the foregoing has shown, among the innumerable practical manifestations of this systematic institutional disdain is the persistent interference with the fundamental human need for sleep.

V. Implications: Prisons, Punishment, Law, Policy

This Part begins to explore the normative implications of chronic sleep deprivation in prison. Section A considers, as a descriptive matter, what this phenomenon adds to our understanding of the prison experience. Section B flags several ways the inevitability of chronic sleep deprivation deepens the punitive character of the carceral penalty. Section C offers a first cut at the core constitutional question—whether the conditions mapped in this Article violate the Eighth Amendment’s prohibition on cruel and unusual punishment. It also touches on a question that frequently arises when I discuss this work: whether the conditions chronicled here constitute torture. Finally, Section D offers some thoughts on the prospects for policy change and the challenges that await efforts to tangibly improve sleep in prison. For reasons of space, my contributions on these topics will necessarily be brief. The aim here is twofold: to begin mapping the normative implications of the problem, and to offer preliminary thoughts on the four dimensions identified here in the hope of sparking a broader conversation.

A. Prisons: Sleep Deprivation and Carceral Life

Prior to the interviews, many of my subjects had given little thought to their experiences of sleep inside, or to how those experiences shaped their time in prison.³⁹⁹ Yet what I learned during those conversations brought into focus certain basic realities of prison life that have, until now, been largely unrecognized, not only among many of my interviewees, but also among those who study incarceration. Below, in no particular order, I identify four such implications.⁴⁰⁰

First, chronic sleep deprivation is a constitutive feature of life in prison. Regularly getting insufficient sleep—night after night, for months, years, and even decades—is as central to the daily experience of incarceration as lousy food, crushing boredom, grossly inadequate medical and mental health care, solitary confinement, and the perpetual fear of physical or sexual violence from staff or fellow prisoners. Being sleep deprived is an intrinsic part of what it means to be inside.

True, people in prison sometimes manage to get decent sleep. In some cases, housing configuration makes the difference. Virtually everyone I spoke to agreed that people in single cells sleep much better than anyone else.⁴⁰¹ As one person memorably put it, “[T]he best cellie is no cellie.”⁴⁰² In other instances, people can benefit from their own wise choices. One person I spoke to spent thirty-seven years in prison. He reported that, especially in later years, he was able to get sufficient sleep and wake feeling rested. He credited several aspects of the life he built in prison for this atypical experience, including staying out of prison politics (“not trying to be king of the jail”), making peace with not being able to control the behavior of loved ones on the outside (not “trying to live one foot in prison and one foot in the world”), and building a supportive religious community of fellow Orthodox Muslims who bunked together and provided one another with “comfort and security.”⁴⁰³ He was also an accomplished artist, which compounded his sense of purpose and seemed to enhance the personal equanimity that helped him sleep. Yet he also described multi-year stretches over his long incarceration during which he slept far less.⁴⁰⁴ And even in single cells—the equivalent of temporarily winning the prison sleep lottery⁴⁰⁵—people struggle with noise, light, extremes of heat and cold, and many other obstacles to sleep chronicled here. In other words, in prison, even the outliers only sleep so well.⁴⁰⁶

In any case, the fact that some people may sometimes beat the odds scarcely goes to controvert the core finding that sleep deprivation is endemic in prison. To take a parallel example, even though some people may sometimes receive reasonably acceptable and even effective medical or mental health treatment while incarcerated, there is no question that a systematic failure to provide adequate health care constitutes a definitive feature of the prison experience. A central claim of this Article is that chronic sleep deprivation, produced by persistent, systematic interference with sleep, is likewise intrinsic to the carceral experience—even if some people in prison occasionally manage to sleep reasonably well.

Second, at any given time, most people living in prison will be operating from a sleep deficit, possibly a considerable one, and this situation will have profound effects on what happens inside. In future work, I will take up the question of how sleep deprivation in prison impacts interpersonal dynamics and institutional functioning. For now, it is enough to say that, judging from my interviews (and as we would expect), the fact that virtually everyone in prison is chronically tired greatly heightens institutional tension and volatility, along with the likelihood of interpersonal conflict. And because COs too are frequently sleep deprived, the heightened potential for conflict and all that goes with it also implicates COs—who, it bears noting, are legally authorized to use force. At this point, it is hard to know just how much the instability and threat of violence that shapes life in the contemporary American prison is attributable to the poor judgment and short tempers emblematic of fatigue. Yet I am certain that the impact is far greater than heretofore recognized.

Third, the overwhelming weight of the sleep science, combined with the striking unidirectionality of the findings, strongly suggests that, in the aggregate, people in prison will suffer considerable physiological and psychological harm traceable to the long-term systematic interference with their ability to get adequate sleep.⁴⁰⁷ Again, at this stage, it is impossible to say with any precision what shape this harm takes.⁴⁰⁸ However, in light of what is known about the health-compromising effects of even short periods of sleep deprivation,⁴⁰⁹ it is hard to imagine that no such effects occur. In addition, the health-compromising effects of sleep deprivation suggest several other troubling possibilities, each of which merits serious consideration:

The inability to sleep properly in prison suggests a vicious circle as to the health of the incarcerated: thanks to chronic sleep deprivation, people inside are vulnerable to illness and disease that well-rested people might avoid, and when they get sick, the constant sleep deprivation and disruption that define the carceral experience are likely to undermine the body’s natural healing processes.
Sleep deprivation may help to explain why people age faster in prison. Research suggests that the biological age of incarcerated individuals is as much as ten to fifteen years greater than their chronological age.⁴¹⁰ This effect is traceable in part to “the high prevalence of risk factors for poor health” among the incarcerated, including “a history of substance abuse, head trauma, poor health care, and low educational attainment and socioeconomic status.”⁴¹¹ Yet given the breadth of the harms generated by insufficient sleep, it seems hard to imagine that chronic sleep deprivation does not also play a central role in the accelerated aging process prisoners experience.
If, as some studies suggest, sleep deprivation constitutes a risk factor for—or exacerbates the symptoms of—mental illness, the systematic interference with sleep that people routinely experience inside could help to explain the strikingly high incidence of mental illness among those in custody.⁴¹² These psychopathological effects mean that those concerned with the epidemic of mental illness behind bars should pay particular attention to the quality and quantity of the sleep people get inside.

Fourth and finally, the causes of sleep deprivation in prison are inextricably bound up with the normative design and operation of the modern American prison. Every person alive, whether inside prison or out, knows what it is like to try to sleep in the face of obstacles like noise, excessive light, extremes of temperature, and so on. For this reason, it may at first seem that people struggling to sleep in prison are on a continuum with others across society who fight for sleep in unconducive situations. But if sleep deprivation is not unique to prisoners, the impediments to sleep behind bars have a particular normative cast, reflecting the distinctive animus towards the incarcerated that shapes virtually all aspects of prison life.⁴¹³

For example: Prison beds are not fiercely uncomfortable by happenstance. People are forced to sleep on metal slabs with thin, cracked, moldy, sticky mattress pads because those who decide what form the beds will take view the resulting discomfort as appropriate for people serving time as criminal punishment and would begrudge as undeserved the cost of anything more substantial. People sleep on flimsy, creaky bunkbeds for the same reason, and fear moving in their sleep in case they provoke frustrated, angry bunkmates who, like themselves, are forced to live in moral ecosystems where they are routinely humiliated and dehumanized and who may lash out at small indignities simply to feel some small measure of control. Every night, people are woken up by COs who, “hav[ing] zero respect for prisoners,”⁴¹⁴ make no effort to do their rounds quietly. During the height of summer and the depths of winter, people labor to sleep in intense heat or extreme cold, a hardship that could be largely addressed were state corrections agencies to invest in air conditioning and routine winter maintenance in the housing units where prisoners sleep, as they already do as a matter of course in the parts of the prison frequented by staff. And so on. Obstacles to sleep that may at first seem of a piece with what people routinely experience outside prison turn out on further examination to constitute specific, sleep-compromising manifestations of the callous indifference and even hostility towards the incarcerated that in countless ways shape the American carceral system.

B. Punishment: Sleep Deprivation and the Carceral Penalty

Recognizing the fact of sleep deprivation in prison and the shape it takes also deepens our understanding of the nature of the punishment inflicted on people sentenced to prison time. In this section, I identify four related dimensions of one key insight: the way the inability to get adequate sleep heightens the punitive character of the carceral penalty.

First, it is already well understood that in practice, a prison sentence carries with it a raft of noxious conditions beyond simply the deprivation of liberty. This Article strongly suggests that, among these conditions, we must include the experience of being chronically sleep deprived for the duration of the stipulated term. Not merely a side effect of being in prison, chronic sleep deprivation is a constitutive feature of the punishment itself, a part of the penalty imposed when the judge pronounces sentence.

Second, the punishment incarceration represents also includes being subjected to the harms that arise from chronic sleep deprivation. To put the point more concretely, when we sentence people to prison time, we are sentencing them to insufficient sleep, which is very likely to (1) trigger a degradation of their body’s proper functioning and defenses against illness and disease,⁴¹⁵ (2) expose them to an increased risk of early mortality,⁴¹⁶ and (3) ignite psychological harms, activating or exacerbating the symptoms of a wide range of psychopathologies.⁴¹⁷ We are also sentencing them to perpetually live with the cognitive deficits that daily plague people who are poorly slept—the irritability, ready frustration, fuzzy-headedness, impaired judgment, proneness to conflict, and general incapacity that collectively make it difficult to get through the day, much less make good decisions, achieve one’s goals, or build healthy relationships. To the extent that sleep deprivation is an in-built feature of the prison experience, all these harmful effects become part of the punishment prison time represents.

Third, the punitive character of the carceral penalty is intensified by the effects of pervasive sleep deprivation on the prison’s social ecosystem. Although sleep-impeding conditions are experienced individually, they are simultaneously endured by everyone. In other words, people in prison are routinely forced into close quarters with scores and perhaps hundreds of others who are themselves struggling with the psychological challenges and cognitive deficits produced by chronically inadequate sleep. People in prison are already likely to be bored, frustrated, resentful, and sometimes distraught, a situation that helps to explain the constant undercurrent of tension, conflict, and volatility that defines the carceral environment. These dynamics will only be exacerbated when everyone is denied access to restorative sleep.⁴¹⁸ Being forced to live in this environment, with all its stress, instability, and incipient danger,⁴¹⁹ is yet another essential component of the carceral penalty traceable to collective sleep deprivation—part of what the punishment of prison time entails.⁴²⁰

Fourth, being subjected to chronic sleep deprivation is dehumanizing, which adds a further dimension to the punitive character of prison. Dehumanization is the process of “stripping people of human qualities” so that “they are no longer viewed as persons with feelings, hopes[,] and concerns but as sub-human objects.”⁴²¹ The mechanisms of dehumanization experienced by people in prison do not only lead others to deny their moral worth. They also turn the process inward, undermining a person’s most elemental capacities, including the internal resources necessary for self-reflection, reasoned judgment, moral fortitude, and personal growth.

Sleep deprivation is not generally recognized as among the core dehumanizing aspects of the carceral experience. But it should be. As we all know from personal experience, when we do not get enough sleep, our most fundamental faculties are impaired. It can be hard to think, to reason, and to read situations and other people. Even things that might otherwise feel urgent or meaningful can seem flat or insufficiently important to motivate action.⁴²² These effects are regularly experienced by people in prison, where the stakes may be especially high. Those who are sleep deprived may react with irritation or hostility even to those they love the most—including the friends and family on the outside who are their lifeline.⁴²³ Like people everywhere, when they are tired, people in prison make poor choices. They opt not to participate in activities they would otherwise value⁴²⁴—even those that might improve their chances of successful reentry.⁴²⁵ Thanks to diminished self-restraint, they sabotage their prospects.⁴²⁶

In short—again, like people everywhere—prisoners who are chronically tired may find themselves sleepwalking through life. Obviously, by virtue of being incarcerated, the human potential and personal agency of people in prison are necessarily drastically curtailed. Yet it is also true that people make meaning in custody. Within the constraints of their incarceration, to a greater or lesser degree, people can be agents of their own situation. But the less sleep they get—and the more they are thereby deprived of the restorative effects of adequate sleep—the less equipped they will be to engage in meaningful, productive interactions,⁴²⁷ and the more readily they will be dragged into the dark, negative, hostile space that so frequently traps those lacking the resources to escape it.⁴²⁸ In all these ways, being sleep-deprived severs people from central aspects of their own moral characters and those features that define their humanity. This severing too is a part of the punishment traceable to—and inflicted by—systematic sleep deprivation in prison.

C. Law: Is Systematic Interference with Sleep Unconstitutional? Is it Torture?

The conditions described in Parts III and IV raise two obvious legal questions: (1) Do these conditions violate prisoners’ constitutional rights? and (2) Do they amount to torture under international human rights law? This Section considers these questions in turn. It focuses primarily on the constitutional question and the likely prospects for successful constitutional claims in the courts, before briefly touching on the matter of torture, which frequently arises in conversations about this research.

The primary provision for assessing the constitutionality of prison conditions is the Eighth Amendment prohibition on “cruel and unusual punishments.”⁴²⁹ At its most basic, the question is whether plaintiffs challenging the conditions catalogued here could satisfy current Eighth Amendment standards—and the answer, I argue, is yes. To see why requires a short overview of the governing law.

Under existing doctrine, to prevail on a prison conditions challenge, plaintiffs must satisfy two components, styled by the Supreme Court as “objective” and “subjective.”⁴³⁰ The objective component considers the challenged treatment, asking whether “the deprivation [was] sufficiently serious.”⁴³¹ The subjective component focuses on the responsible officials, asking whether they acted “with a sufficiently culpable state of mind.”⁴³² Of the two, the objective component may require somewhat more doctrinal explication to make the case. However, as currently defined,⁴³³ neither component should pose insurmountable obstacles for plaintiffs challenging the conditions that impede prisoners’ sleep.

As the Court made clear in Wilson v. Seiter, the objective component requires a showing that the challenged conditions “have a mutually enforcing effect that produces the deprivation of a single, identifiable human need.”⁴³⁴ Writing for the Wilson majority, Justice Scalia identified “food, warmth, or exercise” as examples of “human need[s]” that might ground such claims.⁴³⁵ A complaint, he observed, might allege “a low cell temperature at night combined with a failure to issue blankets,” thus implicating multiple “mutually enforcing” conditions depriving the plaintiffs of the “single, identifiable human need” for warmth.⁴³⁶

Sleep deprivation seems a textbook case of the sort of objective component Wilson explicitly approved. It is beyond peradventure that sleep is a basic human need, as intrinsic to human survival as “food, warmth [and] exercise.”⁴³⁷ Even should plaintiffs choose to focus their complaint only on the more concrete factors explored in Part III—uncomfortable beds, hunger, extreme heat and cold, noise, and excessive light—these conditions together make getting adequate sleep close to impossible and would thus seem to readily satisfy the Wilson standard.⁴³⁸

Yet incarcerated plaintiffs will not typically claim the complete denial of sleep but rather the inability, over months and years, to get even close to the recommended seven hours per night. And as Justice Powell observed in Rhodes v. Chapman, “the Constitution does not mandate comfortable prisons.”⁴³⁹ This means that, when incarcerated plaintiffs bring constitutional claims grounded in sleep deprivation, there is a need to determine the point at which insufficient access to adequate sleep ceases being simply the denial of those “creature comforts” of the sort incarceration necessarily entails, and instead qualifies as the “deprivation of a single, identifiable human need” that satisfies the objective component of Eighth Amendment conditions challenges.⁴⁴⁰

In Garrett v. Lumpkin, an ongoing case out of Texas, the district court offered one answer.⁴⁴¹ It held that “because Garrett failed to show that his sleep deprivation—which was undisputed—actually caused his health issues, he had not satisfied the objective element of cruel and unusual punishment.”⁴⁴² Seeing why this answer fails as a matter of basic Eighth Amendment doctrine helps make clear why sleep deprivation need not be total to satisfy this hurdle. When Michael Garrett filed his claim, he had been in prison for more than thirty years. At the time he drafted his complaint, he was living in the McConnell Unit and was later transferred to the Estelle Unit.⁴⁴³ In his complaint, Garrett challenged a set of conditions that, he alleged, interfered with both the quantity and quality of his sleep and left him chronically sleep deprived. As to quantity, the schedule operating in the Estelle Unit afforded residents only three and a half hours of sleep a night, with bedtime set for 10:30 p.m. and breakfast starting “around 2:00 a.m.”⁴⁴⁴ (The hours in the McConnell Unit were only slightly better, with bedtime at 10:30 p.m. and breakfast commencing around 2:30 a.m.⁴⁴⁵) And “even during this three and a half hour window, sleep is not continuous,” because residents must “be awake for a 1:00 a.m. bed-book count,” which meant that “the most continuous sleep Garrett can theoretically receive is two and a half hours” (assuming he falls asleep instantly at 10:30 and sleeps undisturbed until the bed-book count).⁴⁴⁶ As to sleep quality, the “nighttime prison conditions—namely, the hallway lighting, heavy doors slamming, and prisoners yelling—further imperil” the sleep residents are able to get during the brief period the prison’s compressed schedule allows.⁴⁴⁷

In his complaint, Garrett challenged this raft of conditions on Eighth Amendment grounds and sought an injunction “that would mandate a prison schedule with six hours per night designated for sleep.”⁴⁴⁸ Yet the district court found that Garrett had failed to make out “the objective element of the Eighth Amendment inquiry.”⁴⁴⁹ The reason? Having failed to present “ ‘any expert testimony establishing that a lack of sufficient uninterrupted sleep has, within reasonable medical probability,’ caused his health conditions,” Garrett could not establish a cause-and-effect relationship between his sleep schedule and any medical complaint.”⁴⁵⁰

But this notion—that a plaintiff in Garrett’s position can satisfy the objective component of an Eighth Amendment conditions claim only by showing actual harm—is directly at odds with governing doctrine, specifically the Supreme Court’s clear holding in Helling v. McKinney. Helling was decided just two years after Wilson. While in prison in Nevada, William McKinney was “assigned to a . . . [cellmate] who smoked five packs of cigarettes a day.”⁴⁵¹ McKinney filed suit, arguing that exposure to this degree of cigarette smoke would unconstitutionally “jeopardiz[e] his health.”⁴⁵² At trial, the magistrate judge granted the state’s motion for a directed verdict in part on the ground that McKinney “had failed to present evidence showing . . . medical problems that were traceable to [exposure to] cigarette smoke.”⁴⁵³

Helling wound up in the Supreme Court. The state, following the magistrate, argued that “unless McKinney can prove that he is currently suffering serious medical problems caused by exposure to [environmental tobacco smoke (“ETS”)], there can be no violation of the Eighth Amendment.”⁴⁵⁴ The Court, however, rejected this suggestion,⁴⁵⁵ with its implication that “prison authorities . . . may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.”⁴⁵⁶ As Justice White put it, writing for the majority, “[A] remedy for unsafe conditions need not await a tragic event.”⁴⁵⁷ Instead, the Court held, it is enough to show that McKinney was exposed “to levels of ETS that pose an unreasonable risk of serious damage to his future health.”⁴⁵⁸ The following year, the Court decided Farmer v. Brennan, which phrased the general inquiry slightly differently: whether the plaintiffs faced a “substantial risk of serious harm.”⁴⁵⁹ In the three decades since Farmer was decided, it is this latter formulation that has governed.

When Garrett came up on appeal, the Fifth Circuit made short work of the district court’s reasoning.⁴⁶⁰ In her opinion on behalf of a unanimous panel,⁴⁶¹ Judge Clement drew directly on Helling, which declared it “ ‘cruel and unusual punishment to hold convicted criminals in unsafe conditions,’ regardless of whether those conditions actually cause injury.”⁴⁶² Because “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them,” the Fifth Circuit had previously held that, to satisfy the objective component of an Eighth Amendment conditions claim, the plaintiffs “need not show that death or serious injury has already occurred.”⁴⁶³ Instead—in keeping with Farmer—they “need only show that there is a substantial risk of serious harm.”⁴⁶⁴ In short, when sleep in prison is sufficiently restricted as to expose people to a substantial risk of serious harm, plaintiffs will have satisfied the objective component, whether or not the danger has yet manifested and even if they still manage to get some sleep each night.⁴⁶⁵

What of the subjective component? Here too, were a court to faithfully follow governing precedent, there is a clear pathway for plaintiffs alleging unconstitutional sleep deprivation to meet their burden. The requisite state of mind for Eighth Amendment conditions claims is “deliberate indifference.”⁴⁶⁶ In Farmer v. Brennan,⁴⁶⁷ the Court held that to satisfy this standard—and thus the subjective component of an Eighth Amendment claim—plaintiffs must show that defendants “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.”⁴⁶⁸ As the Farmer court explained, Eighth Amendment deliberate indifference is equivalent to criminal recklessness as defined by the Model Penal Code: “[T]o act recklessly . . . a person must ‘consciously disregar[d]’ a substantial risk of serious harm.”⁴⁶⁹

To satisfy this standard, plaintiffs bringing an Eighth Amendment sleep deprivation claim must show that prison officials subjectively realized the substantial possibility that, because of the challenged conditions, those incarcerated in their facility were unable to get adequate sleep. As always, plaintiffs must take care to name defendants who will have some knowledge of the challenged conditions. But given the pervasiveness of the conditions described here and the many operational decisions that daily compromise the quality of prisoners’ sleep—the nightly counts, the double-bunking, the crowded dorms, the early dinner hour, the lack of air conditioning, and so on—it would not be hard to identify prison officials with full knowledge of the conditions that deprive the incarcerated of the basic human need for sleep.

Defendants in such cases might try to argue that, although they knew of the challenged conditions, they were not aware that these conditions posed “a substantial risk of serious harm” to prisoners. Yet as the Farmer Court made clear, “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including . . . the very fact that the risk was obvious.”⁴⁷⁰ At a minimum, prison officials who work the night shift are well acquainted with the conditions under which those living in their facilities are forced to try to sleep. And because they are human themselves, and thus equally in need of the full complement of sleep necessary for human functioning (not to mention equally likely to have wrestled with environmental conditions impeding sleep), it would be reasonable to infer that they realized that people subjected to this set of conditions would be unable to get adequate sleep. Given the way the Court defined the Eighth Amendment deliberate indifference standard in Farmer, the plaintiffs should be readily able to identify defendants as to whom they can satisfy the subjective component of an Eighth Amendment sleep deprivation claim.

I am aware that, in this discussion, I have glossed over innumerable issues that plaintiffs may run up against in litigating these two aspects of an Eighth Amendment conditions challenge. For example, defendants might argue that plaintiffs failed to exhaust administrative remedies.⁴⁷¹ They might invoke qualified immunity⁴⁷² or “Turner deference,”⁴⁷³ or deny that plaintiffs suffered actual injury.⁴⁷⁴ They might claim relief is foreclosed absent a showing of physical injury.⁴⁷⁵ Or they might claim—as prison officials repeatedly did during COVID—that, despite taking no meaningful steps to reduce the risk of harm, they reasonably responded to the risk prisoners faced from lack of sleep and could thus not be found deliberately indifferent.⁴⁷⁶ At least as to some challenged conditions—hunger in particular comes to mind—they might insist that they lacked knowledge of the condition itself and thus of the risk of harm it might have posed. Litigators will need to address these issues as they arise.⁴⁷⁷ To some extent, their force will depend on the particulars of individual cases. But my point here is a more general one: assuming a well-litigated case, so long as courts apply the governing Eighth Amendment doctrine in an evenhanded and straightforward way, plaintiffs alleging unconstitutional sleep deprivation should have a clear doctrinal pathway to prevailing on the merits.

All this means that in theory—assuming the ability to overcome the many procedural hurdles to getting into court and getting a hearing on the merits—an affected class that meets its burden under governing Eighth Amendment standards should be entitled to injunctive relief designed to remedy the many sleep-impeding conditions producing harm or risk of harm. However, in practice, those seeking relief in the courts from the conditions undermining sleep are still likely to face a steep uphill climb.

One notable challenge would arise from the nature of the relevant evidence. On the one hand, the considerable body of sleep science demonstrating unequivocally the myriad harms—physiological, psychological, and cognitive—arising from sleep deprivation will help incarcerated plaintiffs make their case.⁴⁷⁸ On the other hand, making such a showing demands expertise and resources that pro se plaintiffs are likely to lack, which means that, to succeed, plaintiffs will require outside counsel with deep pockets and a commitment to building the strongest possible case.⁴⁷⁹ And even still, such efforts may run up against what Margo Schlanger has characterized as “a general hardening of attitudes about causation” on the federal bench, producing demands by courts for “more rigorous proof on harm and causation.”⁴⁸⁰

Then there is the fact that today’s federal courts are extremely reluctant to order meaningful changes to how prisons are run. Except for one brief period in the 1970s and 1980s,⁴⁸¹ federal courts have been notoriously unwilling to issue broad injunctive orders in prison cases.⁴⁸² And as we have seen, the concern with sleep deprivation implicates wide swaths of prison operations—the design of housing units, maintenance of the physical plant, a prison’s ability to accommodate large populations in relatively small spaces, the way staff shifts are organized, how COs do their jobs, and even the fundamental matter of how staff perceive and treat the incarcerated. In today’s judicial climate,⁴⁸³ the breadth of any sufficient remedy is likely to incline courts to try to find some way to dispose of the case long before the remedial stage—however strongly supported the constitutional claim.⁴⁸⁴

For these and other reasons, litigation will not be a cure-all.⁴⁸⁵ Yet even granting the impediments, these cases are still very much worth bringing. For one thing, with the right case, dedicated and adept advocates with sufficient resources to mount the litigation may well find a way to win.⁴⁸⁶ And partial successes are still worth pursuing. Even if a court were unwilling to order sweeping relief encompassing all the issues explored here, it would still make for better sleep inside if they were at least to require, say, adequate air conditioning during hot summer months or that prisoners be provided real beds with higher quality mattresses. To this, some may object that, given the cruelty of forcing people to try to sleep in the dehumanizing and inhumane conditions mapped here, we ought to accept nothing less than complete institutional overhaul.⁴⁸⁷ But when conditions are this dire, advocates do prisoners no favors by letting the best be the enemy of the good.

Moreover, we should not discount the possible virtuous circle that might arise were courts to order—and prison officials to implement—even partial relief. Of the obstacles to sleep catalogued here, those I have labeled meta-conditions are perhaps least likely to form the basis for injunctive relief. Yet if a carceral facility took steps to improve the more concrete conditions impeding sleep, some of the meta-conditions may at least partly take care of themselves. If a prison provided decent beds, served a meal before bed, reduced the frequency of nighttime counts, or ensured an ambient temperature conducive to sleep, these efforts might mitigate the daily humiliations that can themselves compromise sleep. Depending on the nature of the policy changes, people in such facilities might also feel less compelled to break the rules to try to improve the quality of their sleep, or to engage in risky behavior for the sake of having something to eat before bed. This possibility of felicitous knock-on effects is another reason Eighth Amendment claims grounded in sleep deprivation are worth bringing, even if the results may fall short of total institutional transformation.

Sleep deprivation may also ground claims beyond class actions seeking broad structural change. As with other pathological features of the carceral experience—medical neglect, inadequate mental health care, the risk of physical or sexual assault, excessive force, and so on—sleep deprivation is both a shared experience produced by macro-level institutional design and a personal experience the precise shape of which will vary according to the individual and their context. Depending on the circumstances, people in custody may face particular obstacles to adequate sleep for which individual prison officials may be liable. For example, prison officials may persistently refuse to provide testing and treatment for people exhibiting obvious signs of sleep apnea, or to authorize a cell move for someone whose cellmate is a kitchen worker with a 2:00 a.m. wake-up time, or to provide a longer or wider bunk for someone of greater than average height or weight. Such situations too deprive people of the basic human need for sleep and thus raise potential constitutional claims, along with claims under other legal frameworks—perhaps most notably the Rehabilitation Act and the Americans with Disabilities Act, the “two principal federal disability anti-discrimination statutes.”⁴⁸⁸

Again, I do not wish to overstate the likelihood of success. Given the dispositional favoritism federal courts routinely exhibit toward defendant prison officials in prison law cases, incarcerated plaintiffs will always face long odds.⁴⁸⁹ Yet advocates should still bring these claims—and not only because they may sometimes win. They should also do so because, just by filing cases, they can put the issue of perpetual sleep deprivation in prison on the public radar.⁴⁹⁰ If change is to be possible, the public first needs to be aware of what goes on behind the walls. And litigation, with its built-in drama and familiar script, offers a way to expose the realities of prison life to public view. Legal cases can become the focus of media attention; as reporters cover the various stages of the case, they also educate the public about the underlying issues. Judicial proceedings offer inflection points for organizing, around which advocates can build political campaigns. And lawsuits themselves can open pathways for sympathetic engagement by legislators, who may in turn hold hearings and push for policy change.⁴⁹¹ Eighth Amendment litigation alone cannot achieve these aims. It can, however, play a crucial supporting role in a multi-pronged, multi-stakeholder strategy.⁴⁹²

One other legal issue, implicating not the United States Constitution but international human rights law, bears addressing here. That is, some readers may be inclined to regard the systematic interference with sleep in American prisons as tantamount to torture. Whether such a claim could succeed under international law is an open question. There is a high bar to a finding of torture under the United Nations Convention Against Torture (“CAT”),⁴⁹³ which explicitly excludes from the definition “pain or suffering arising only from, inherent in or incidental to lawful sanctions”—a provision that would greatly complicate efforts to apply CAT to sleep deprivation in American prisons (if not for cases focusing on pretrial or administrative detention).⁴⁹⁴ For this and other reasons,⁴⁹⁵ advocates wanting to argue that the conditions mapped here violate international law bans on torture may also face a steep uphill climb.⁴⁹⁶

Those pursuing this legal pathway might find it more promising to try framing sleep deprivation in prison, not as torture, but as “cruel, inhuman or degrading treatment” (“CIDT”)—a category of treatment also prohibited under international human rights law.⁴⁹⁷ CIDT falls somewhat below torture on the schedule of human rights abuses, and includes “forms of punishments . . . that cause ‘serious mental and physical suffering,’ ”⁴⁹⁸ which persistent interference with sleep of the sort described here arguably does.

I leave it to experts in international human rights law to determine how best to categorize the conditions described here within CAT and other international human rights frameworks. Here, I would simply note that, at this stage, how this doctrinal debate (torture or only CIDT?) would come out under international law may matter less⁴⁹⁹ than the fact that, for many, this is the question that most immediately comes to mind when confronting the fact of systematic sleep deprivation in American prisons. That we find ourselves in a moral universe where these are the stakes provides the strongest possible evidence that the conditions identified here are among the features of American prison life most worthy of condemnation and challenge.

D. Policy: Challenges and Complications

The conditions chronicled in this Article are the product of multiple failures: of institutional design, of moral obligation, of constitutional protection and enforcement. In these ways, the phenomenon of sleep deprivation is no different from many other toxicities constitutive of the American carceral experience. All the unconscionable conditions that shape prison life, sleep deprivation included, have the same moral driver: an inability (or unwillingness) to recognize the humanity of the incarcerated, and a consequent callous indifference to their health and well-being. They also have considerable mutual interaction effects, each reinforcing and amplifying the harms prisoners endure.

This interconnection means that none of prison’s noxious aspects can be fully resolved while the others persist. Yet, however much we might wish it, we will not witness the wholesale transformation of American carceral practice any time soon. Of course, we ought still to push for sweeping change. But this hard truth means that, for now, the best we may realistically be able to achieve for those currently living behind bars is to ameliorate their suffering as much as possible.

When it comes to improving the conditions in which prisoners sleep, there are some obvious policy fixes. To name just a few: people should have real beds, decent mattresses and pillows, and sufficient blankets to keep them warm at night. Meals of reasonable quality and quantity should be served at appropriate times, and food should be available in the evening for people who are still hungry. Facilities should be air-conditioned in summer, well-heated in winter, and generally well maintained to ensure a temperate environment. Nighttime counts should be reduced and staff trained to respect prisoners’ sleep. Approaches to lighting should be found that do not interfere with sleep and leave some people feeling like “rotisserie chicken[s].”⁵⁰⁰ And ideally, people would have their own rooms, so that their sleep will not be disrupted by the movements and noises of a cellmate⁵⁰¹—or ninety-nine other dormmates. Even if policymakers balk at implementing the policy reforms just itemized, these are changes advocates should push for on every available front.⁵⁰²

No doubt, these proposals and others in a similar vein would be condemned by abolitionists (and other advocates of sweeping change) as woefully inadequate. But given the actual distribution of power in this space, what is of more practical moment is that such proposals are also likely to be fiercely resisted by prison officials and policymakers. Such changes would not come cheap, and prisoners, largely viewed as undeserving across society at large, are not a constituency in which legislators are generally eager to invest. Although the desire of politicians to seem “tough on crime” has waned somewhat since its peak in the 1990s, there is still a palpable reluctance among policymakers to address even the most pressing needs of the incarcerated.⁵⁰³ This is not the place to fully address these troubling dynamics. Here, I would simply note that the state’s decision to incarcerate carries with it the duty to provide for the basic needs of people in custody. This is the state’s carceral burden.⁵⁰⁴ If efforts at economy produce conditions that deprive people of what Justice Powell once labeled “the minimal civilized measure of life’s necessities,”⁵⁰⁵ the state is obliged to reorient its priorities. If it finds the costs too great to bear, the appropriate response—both morally and constitutionally—is not to subject the incarcerated to dehumanizing and affirmatively harmful conditions, but instead to reduce the carceral footprint.⁵⁰⁶

It is well beyond the scope of this Article to fully explore the policy challenges facing those seeking to ameliorate the sleep-disrupting conditions prisoners face. I will, however, flag one additional complication that advocates will invariably need to confront: efforts to improve the conditions enabling sleep in prison will at times run up against policy initiatives intended to promote unrelated dimensions of prisoners’ interests and needs. For example, as we have seen, one central source of nighttime disruption comes from COs conducting count and performing regular security checks. But in the view of many prisoners’ advocates, these rounds are vital to ensuring the health and well-being of those in custody, by preventing or disrupting suicide attempts and intra-prisoner violence and allowing timely intervention in the event of medical crises.⁵⁰⁷ In my view, this justification is questionable.⁵⁰⁸ Yet even assuming its validity, it is also the case that these nighttime checks exact a considerable cost to the health and well-being of the very people they are supposed to help—a cost measured in the disrupted sleep, every single night, of hundreds of thousands of people incarcerated in locked facilities around the country. It may be that nighttime rounds should

be maintained, but at the very least, their considerable downside effects on sleep should be taken seriously and addressed.⁵⁰⁹

A similar tension will also confront efforts to improve sleep in prison by increasing access to single cells. Judging from my interviews, it is impossible to overstate the sleep-enhancing effects of having one’s own room. Given the choice, virtually everyone I spoke with would opt for a single.⁵¹⁰ Yet since the 1980s, when the American prison population exploded, double-celling—that is, housing two people in cells designed for one—has been the norm.⁵¹¹ This practice allowed states to cram many more people into each facility, and solo housing became relatively rare. But although the size of the incarcerated population remains high, it peaked nationwide in the early 2000s and continues to exhibit appreciable declines.⁵¹² Among other advantages, this drop has somewhat eased pressures on housing and, in some jurisdictions at least, could allow for a greater number of people to be housed alone. However, for some advocates, the preferred response when jurisdictions reduce their numbers is not to reduce population density but instead to close facilities, thus shrinking the carceral capacity of the system. If overall decarceration were the only goal, seeking prison closures would make sense. Yet viewed through the lens of sleep, shuttering prisons carries a significant downside for those who remain behind: the missed opportunity to expand the number of people able to live—and sleep—alone. This too is a serious tension advocates must navigate when considering how best to fight for change in this arena.

This brief policy discussion has focused primarily on challenges likely to attend efforts to make concrete changes to the conditions affecting prisoners’ sleep. But as I have repeatedly emphasized, the phenomenon of sleep deprivation in prison cannot be fully understood independently of the moral character of the carceral enterprise, specifically, the normative hostility and callous indifference that drive institutional choices and shape official behavior. If those with the power to shape the carceral environment are blind to or unmoved by the humanity of people in custody, they will easily dismiss demands for the concrete changes that would help those inside get adequate sleep. Any strategy for achieving practical change on the ground must therefore include efforts to generate a broad cultural recognition of the shared humanity of the people society chooses to incarcerate.

Conclusion

It may be tempting for some to dismiss concerns with the quality or quantity of the sleep people get in custody as simply part of the loss of those so-called creature comforts that necessarily comes with a carceral penalty.⁵¹³ But this notion misapprehends the stakes. Getting adequate sleep is not a matter of personal indulgence or a luxury only to be enjoyed by those at liberty to chart their own course. It is a basic human need, as fundamental to human survival and adequate human functioning as is access to food, water, and shelter from the elements.

For those who live in prisons, being denied the ability to sleep night after night takes a substantial toll. Most immediately, the experience is frustrating, infuriating, and even humiliating. Chronically insufficient sleep also inflicts substantial physiological, psychological, and cognitive harm. Yet when aspects of the American prison are singled out for condemnation, sleep deprivation is virtually never mentioned. In this Article, I have argued that chronic sleep deprivation should be counted as among the fundamental harms of incarceration, explicitly acknowledged as a core part of what makes prison so unlivable. And the claim might be put still more forcefully: the persistent inability of people in custody to get adequate sleep is not only a product of some of the most damaging and degrading features of the prison experience, but also in turn helps to produce them. Not to reckon with this endemic aspect of prison life is to miss a key driver of the toxicity of the prison environment.

Appendix A

Research Methodology

The findings presented in this Article are based on thirty-nine interviews conducted primarily over four months in 2023⁵¹⁴ with people formerly incarcerated in prisons across the United States. These interviews were of two types. Thirty-five were semi-structured interviews conducted on Zoom using a 200-item questionnaire developed for the purpose. These interviews were video-recorded after obtaining consent. Each research subject had spent at least four years in prison,⁵¹⁵ and all but three had been released within five years of the interview.⁵¹⁶ I established these parameters to ensure clearer memories and a depth of experience with the issues.⁵¹⁷

The remaining four interviews—which I came to label “ad hoc interviews”—were more free-form. Participants in these interviews were people I connected with who seemed to have insight and experience to contribute, but who did not meet the study parameters at the time or who otherwise seemed unsuited for formal enrollment.⁵¹⁸ These interviews were audio-recorded after obtaining consent. To get context and perspective, I asked these individuals many of the same questions as appeared in the questionnaire, and their answers were entirely consistent with what I was hearing in the formal interviews. As a result, I wound up drawing on all thirty-nine interviews when analyzing the data.

The primary focus of the research, as well as the main source of the data, was the thirty-five formal interviews conducted using the 200-item questionnaire. What follows is a description of the protocol I followed in undertaking this core aspect of the research.

I began by compiling a draft questionnaire, initially shaped by many conversations with people with firsthand carceral experience as well as by my own knowledge of prison conditions accrued over years of study. I then enlisted three volunteers, each of whom had spent time behind bars (two in California and one in Louisiana), to do individual mock interviews based on my draft questionnaire. After each mock interview, the volunteer shared feedback on which aspects warranted revision. I also incorporated feedback from Joe Doherty, former Director of the Empirical Research Group at the UCLA School of Law, who advised me throughout this project on matters of research methodology.

After receiving IRB approval, I began recruiting participants. I used two main channels. First, I put out a call for participants through the networks I have developed as part of my long-standing research into prisons and prison conditions. Targeted recipients included the Prisoners’ Rights listserv, a national list populated primarily by advocates for the incarcerated. This call briefly described the study and the format of the interviews and asked recipients to share the information with anyone they knew who might fit the parameters. I also posted a notice on Twitter,⁵¹⁹ advertising the study and inviting participants. In each notice, I included a link to a Microsoft form asking for basic demographic data and contact information. I also indicated that study participants would receive a $30 Amazon gift card. The idea here was to provide some compensation for the time people spent doing the interview, while keeping the amount low enough that it would be unlikely to draw people who would not otherwise be inclined to share personal details or revisit prior experiences likely to have been traumatic. Unfortunately, I did not anticipate that the up-front promise of a gift card might incline some people without prior carceral experience to pretend to have been incarcerated in an effort to receive this benefit. The first few iterations of the sign-up form proved to be a mix of genuinely qualifying individuals and fraudsters, and it took some time to figure out how to sort them out. Eventually, I began scheduling “pre-calls” with those who filled out the form. During these brief calls, I described the study and then explained that I had been hearing from people who were only pretending to be formerly incarcerated and that, before we could schedule an interview, I needed to hear enough to confirm that the person was in fact formerly incarcerated. In each instance, it took only a few sentences of the person recounting their carceral history⁵²⁰ for me to know they were in earnest.⁵²¹

Once I got through this rough patch, it did not take long to receive expressions of interest from more potential participants than I had time to interview. My aim was to build a research sample diverse as to race and roughly proportionate as to gender.⁵²² The reason for seeking a diverse sample was to ensure that my findings would not reflect only the experiences of one group of people. I also sought a sample that had broad jurisdictional/geographic representation. I did so because, as is common knowledge among people who study prisons or who work in the field, carceral systems vary considerably across the country on a variety of metrics, including facility size, general conditions of confinement, and—most importantly—moral orientation toward the health, safety, and well-being of those in custody.

I started by interviewing people in the order in which they reached out, but as my sample took shape, I began to pick and choose among those who had filled out the initial form, seeking people who would broaden the sample on the metrics I sought. Some states were better represented than others in my participant pool, and at some point, I realized that a certain degree of jurisdictional depth would enhance the data. I therefore set out to interview four or five people from four states well-represented in my pool: California, Louisiana, New Jersey, and New York. This approach helped strengthen confidence in my findings, as there proved to be considerable overlap in what I was hearing regarding the conditions impacting sleep from these four very different prison systems.⁵²³ I then did my best to speak to people from as many other state systems as I could to build out the picture more broadly.⁵²⁴

Each interview proceeded as follows:

First, prior to beginning to record, I briefly described the study and what types of questions the interview would cover. I explained that the person was free to decline to answer any question they would prefer to skip over.⁵²⁵ I also explained that if, at the end of the interview, they decided they did not want their data to be used in the study after all, they would be given an opportunity to retroactively withdraw their consent. Finally, I explained that the content of our exchange would be, not only confidential, but also fully anonymous. To that end, with the permission of each participant, I changed the name in their Zoom box to the random code I had previously selected for their interview, each taking the form FI.# (with FI standing for “Formerly Incarcerated”). Doing so ensured that even the person who transcribed the interview would not know the subject’s name. And once the interviews were transcribed, the (anonymized) transcript would be the only record of the interview. I then solicited consent to participate in the study and for the session to be recorded. Only after consent was granted on both fronts did we start the interview.

The interviews were semi-structured. On this approach, the questionnaire becomes the vehicle for introducing issues, any one of which may invite deeper inquiry depending on how the conversation goes. Each interview began with the interviewee providing their carceral history, including which facilities they were in, how long they spent in each, and the housing configuration of each. After asking them to estimate how much time they slept in each housing context, I asked one series of questions about issues that may have impaired sleep, and another about how if at all being chronically tired (or being surrounded by other chronically tired people) may have impacted their carceral experience or the functioning of the prison. A final set of questions addressed demographics and related issues.

Over the course of the research, I began to get a feel for which questions were most fruitful, and which yielded little of interest. Consequently, I stopped asking some questions altogether.⁵²⁶ I also started asking additional questions as salient issues emerged. This meant that, as to some issues—those that only emerged over time—I received input from fewer people than on those issues I had been asking about from the beginning. Among the questions that emerged in this way were:

Did you ever have trouble sleeping due to the presence of insects, rodents, or other vermin in your cell or dorm? If so, tell me about it.
Did you ever find it hard to sleep because of untreated physical pain? If so, tell me about it.
Did you have any difficulty sleeping in the bunks because of above-average weight or height, or did you ever see others in this situation? If so, how did you/they handle it?
Do you think staff were also tired/sleep deprived? If so, what makes you say so? If so, how did staff being tired affect your daily life or that of others in the prison?⁵²⁷

During the initial process of drafting the questionnaire, an issue came up that I thought might be fruitful to pursue more systematically: the experience of people diagnosed with sleep apnea who used/tried to use CPAP machines in custody. I therefore designed a second, shorter questionnaire intended for use with this population. It contained targeted questions about sleep apnea and CPAP use,⁵²⁸ and also asked what I thought were likely to be the core questions for all interview subjects: those concerning how long and how well people slept, the specific obstacles to sleep, and how being sleep deprived or being surrounded by people who were sleep deprived affected their carceral experience. After conducting two such interviews, I realized that I would not get sufficiently consistent data on the sleep apnea/CPAP piece to be able to say anything reliable on these issues. I therefore folded these two interviews into my larger data set and ceased soliciting participation from those in this category.⁵²⁹

A question arose early on about whether doing the interviews over Zoom might disadvantage some participants. But it quickly became clear that, in a post-COVID world, virtually everyone was comfortable with the Zoom platform. Occasionally the start of an interview would be delayed by technical difficulties, but these were readily overcome.

At the close of each interview, after I ceased recording, I gave each person the opportunity to offer any thoughts they might have on the experience we had just shared. Once or twice, the subject began talking about an entirely new issue, one we had not discussed during the interview. Each time this happened, I hesitated to risk interrupting the flow by asking to restart the recording. I therefore took as detailed notes as I could and immediately after ending the call recorded my recollection of the exchange as part of the field notes for that interview.

At the close of each interview, I also gave each person the opportunity to withdraw their initial consent to participate and not to have their data included in the study. No one took me up on this offer. After each interview, I followed up by email to share my contact information and the contact information for the UCLA Office of the Human Research Protection Program, in case they had any questions or concerns about the research that they preferred not to go through me. I also shared the unique code for the $30 Amazon gift card that had been promised to each participant as a token of thanks for their participation.

Once the interviews were completed, the recordings were shared with a team of research assistants (“RAs”) for transcription. There were two steps to the transcription process. First, each interview was handed off to an RA who ran it through Otter.ai, which produced an initial transcript that caught roughly ninety to ninety-five percent of the content. That same RA then went simultaneously through the recording and the initial transcript and filled in any missing pieces. Second, the interview was handed off to another RA on the team, who went through the recording and transcript to catch any remaining errors.

The coding process proceeded as follows: I created an initial, lengthy list of coding categories, each taking the form #issue (e.g., #noiseinadseg, #extremeheat, #mattresses). My RAs then went through each transcript, identifying any passages related to each category. Whenever they identified a relevant passage, they dropped the code in the interview text (producing a set of coded interviews searchable by issue) and also added the text to a master coding document that grouped interview excerpts according to categories. To ensure quality control, I reviewed the first set of coded transcripts and an early version of the master coding document. As they went, my RAs sometimes added to the initial list of coding categories. We also created tables, populated with any data amenable to being preserved in this way (e.g., race, gender, state of origin, length of incarceration, age at initial incarceration, age on release, weight on entry, weight on release, and so on). I then went through the master coding document to identify relevant issues and representative passages. I also frequently went back to the coded transcripts to read for context and confirm impressions. In this Article, I only quoted passages that were representative of what I heard more generally.⁵³⁰ Where the experiences varied, for example by security level or housing configuration, I indicated as much in the text.

Appendix B: Descriptive Statistics of the Sample

In this Appendix, I provide tabular representation of several aspects of the research sample amenable to quantification. Unless otherwise indicated, each table includes pertinent data for the thirty-five subjects formally enrolled in the study and the four individuals with whom I conducted ad hoc interviews.⁵³¹

Table 1. Racial Distribution (n=39)
Identified as	# in sample	% of sample	Overall % in U.S. Prison and Jails⁵³²
Black	15	38%	42%
White	13	33%	36%
Hispanic	7	18%	20%
Asian	1	3%	N/A
Native American	1	3%	3%⁵³³
Mixed Race⁵³⁴	2	5%	N/A

Table 2. Gender Distribution (n=39)
Housed in facilities for	# in sample	% of sample	Overall % in U.S. Prisons⁵³⁵
Men	35⁵³⁶	90%	93%
Women	4	10%	7%

Table 3. Jurisdictional Breakdown (n=39)⁵³⁷
As this Table shows, the data on which this Article is based derived from interviews with people with firsthand experience of incarceration in seventeen state systems, as well as the D.C. Department of Corrections and the Federal Bureau of Prisons. In addition, six members of my sample served time in private prisons located in five different states.
Alabama	2
California	5
Colorado	2
Illinois	2
Louisiana	4
Michigan	1
Missouri	1
New Jersey	5
New York	4
Ohio	1
Oregon	2
Pennsylvania	2
Rhode Island	1
Tennessee	1
Virginia	3
Washington, D.C.⁵³⁸	2
Wisconsin	1
Wyoming	1
Federal Bureau of Prisons	4
Private prisons⁵³⁹	6 (located in Arizona, California, Colorado, Ohio, Oklahoma, and Virginia)

Table 4. Housing Configuration (n=39)
The figures in this table represent the total number of study subjects who experienced each type of housing configuration. If, as was common, a subject experienced multiple housing configurations over their incarceration, then all these configurations were counted in this table. It was not always possible from the interview transcripts to determine with precision the full range of a person’s experience, so these numbers are most likely undercounts.
Housing Type	Total # Interview Subjects Reporting Experience
Solitary confinement	29
Single cell	29
Double cell	30
3+ cell (range: 3–10 occupants)	10
Cubicle in dorm	12
Open dorm	25

Table 6. Misc. Data Points
	Minimum Value	Q1	Q2	Q3	Maximum Value
Hours of sleep per night (n=39)	3 (n=3)	4.5	5.1	6	11.5
Total years incarcerated (n=39)	3	9.5	13.5	23.5	45
Interview length (n=35) (hours: mins)	1:03	1:44	1:58	2:14	2:48
Years between release and interview	0	1	2	4	12 (n=2)

Table 6 features several data points as to which the answers reflected a range. To capture the breadth of responses, I used the standard “five number summary,” indicating as to each category the minimum value, Q₁ (25th percentile/lower quartile), Q₂ (50th percentile/median value), Q₃ (75th percentile/upper quartile), and the maximum value. As to each data point, some further explication is in order, as follows:

Hours of sleep per night: The effort to calculate the hours of sleep per night my subjects received was complicated by many factors, including the long duration of the sentences served by many of my subjects and the wide range of experiences each had across housing configurations, not to mention inevitable variability night to night. I asked people to give me their best estimate of how many hours per night they slept on average in each housing configuration they experienced. When respondents reported variation across their incarceration, I took an average of the reported hours slept. If someone gave a range (e.g., four to six hours per night), but characterized the sleep quality as very poor or described themselves as waking frequently during the night, I took the low end of the stated range as more accurately reflecting the actual amount of sleep they likely received. These limitations mean that the numbers reported should be considered rough estimates only, although the considerable sleep deficit they indicate seems entirely consistent with the narrative accounts of the extremely limited and poor-quality sleep reported in the interviews.

The maximum value for hours of sleep per night is 11.5. The person who reported this outlier value served time in two prisons and reported sleeping eight hours a night in the first facility and fourteen to sixteen hours per night in the second. To calculate his hours slept for purposes of this chart, we took the average of eight hours (from prison #1) and the middle of the range he named for prison #2.⁵⁴⁰

Total years incarcerated: In building my sample, I sought to enroll only people who had spent at least six years in prison. I wound up enrolling two individuals who had done four years each, because each offered diversity as to other metrics. The minimum value noted in the table (three years in custody) reflects the experience of one of the individuals with whom, in part for this reason, I opted to conduct an ad hoc interview rather than formally enrolling them in the study.

Interview length: For this data point, I included only the thirty-five interviews conducted with those individuals formally enrolled as subjects in the study. I did so because the four ad hoc interviews took a different form and did not follow the path shaped by the questionnaire. For reference, the four ad hoc interviews ranged in duration from 1:05 to 2:09.

Years between release and interview: The interviews were conducted in 2023. Two members of my sample were released that same year and were coded as having had zero years between release and interview. Two members of my sample were released in 2011, twelve years prior to the interview. This gap was considerably greater than my intended parameter of five years. Each of these individuals was interviewed very early in the process, when I was still unsure whether I would find enough participants to assemble an adequate sample. Once things progressed and I had more people expressing interest in participating than I had time to interview, I reverted to requiring a release date within five years of the interview. One other enrolled participant was outside this stipulated limit. He had entered the wrong release date when he filled out the initial form expressing interest in participating, substituting 2018 for 2015. When I enrolled him in the study, I believed he was five years

out, and was surprised when, at the end of the interview, he named 2015 as his year of release. Having already conducted the interview, I opted to retain his data as part of the full data set.

99 S. Cal. L. Rev. 95

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Sharon Dolovich*

*Professor of Law, UCLA School of Law. Thanks to Joe Doherty, Phil Goodman, Keramet Reiter, and Ashley Rubin for generously sharing their methodological advice and good counsel; Sasha Natapoff for many fruitful conversations; Ahilan Arulanantham, M. Forrest Behne, Chesa Boudin, Beth Colgan, Ethan Corey, Phil Goodman, Emma Kaufman, Sasha Natapoff, and Keramet Reiter, as well as participants at the Criminal Justice Roundtable at Harvard Law School and the UCLA Faculty Workshop, for helpful feedback; Muna Ali, Cecilia Bain, Zeke Bolden, Regina Campbell, Eugine Choo, Daniel Dulaney, Michaela Firmage, Jay Foss, Kyle Groves, Leslie Hernandez, Brennan Hickson, Ankita Katukota, Hadley Levenson, Emma Maynard, Kate Mitchell, Eireann O’Grady, Ginny Oshiro, Taylor Robinson, Natalie Sorrentino, Jack Stephens, Allie Tackett, Claudine Ushana, and Sorcha Whitley for their tremendous research assistance; Omer Sharon for guidance on the sleep science; Harvey Ellis, Freddy Guzman, Ken Hartman, Haller Jackson, Bart Lanni, and Ginny Oshiro for helpful input on the content of my questionnaires; and the Vital Projects Fund, the UCLA Academic Senate, and the UCLA ORCA Acceleration Grants Program (OAG) for financial support of this research. My deepest gratitude goes to the many individuals (who per IRB requirements must remain anonymous), who generously contributed their time to this study in the hope that, once people understand this dimension of the carceral experience, conditions on the ground might change for the better.

Litigation Finance in the Market Square

October 2025October 2025Suneal Bedi* & William C. Marra†

Litigation finance is the subject of a contentious scholarly and policy debate. Litigation funders provide capital to litigants or law firms in exchange for a share of case proceeds. The current debate centers on how litigation finance impacts the civil justice system. Proponents of funding argue it helps litigants get their day in court, while opponents argue funders pervert the judicial process. Policymakers are torn between these two competing viewpoints, without a clear path forward.

This Article reframes the debate about litigation finance. Scholars and policymakers have focused too narrowly on the “litigation” part of litigation finance, that is, on how funding impacts the legal system. We shift the focus to the “finance” implications of litigation finance. We explore for the first time how litigation finance affects competition not only in the courtroom but also in the marketplace—how companies use funding to access not just the courts but also the capital markets. To do this, we offer a novel interdisciplinary approach drawing on the classic business concept of “nonmarket strategies.” This scholarship, which has been all but ignored by legal scholars, studies how companies leverage “nonmarket” institutions like courts to increase their competitive advantage in the market. While we introduce this scholarship with reference to litigation finance, it holds promise to reframe the debate around legal issues far beyond the realm of litigation funding.

Our central claim is that any regulation of litigation finance is a regulation not only of the courts but also of the capital markets, with significant but unexplored implications for contemporary debates about funding. We show that the regulation of funding affects competition in the marketplace and is especially likely to harm small and medium-sized enterprises, which are more likely to rely upon litigation funding to pursue nonmarket strategies. Our approach also offers new insights into the ongoing debate about funding’s impact on the civil justice system. We conclude by inviting scholars and policymakers to further study these new questions about litigation finance’s impact outside the courthouse gates and in the market square.

Introduction

This Article reframes the contentious scholarly and policy debate about litigation finance. Third-party litigation funders provide capital to litigants or law firms in exchange for an interest in the potential recovery from a legal claim.¹ The standard approach to litigation funding focuses exclusively on how litigation finance affects litigation: that is, how it impacts the civil justice system and access to the courts.² Scholars have explored whether funding improves or impairs the legal system, benefits or harms litigants, prolongs or expedites cases, impairs or supports the attorney-client relationship, and so on.³ In the political arena, a fight over how funding should be regulated pits those who argue funding levels the litigation playing field against those who contend it spurs frivolous suits and encourages speculation on lawsuits.⁴

These are important themes but not the full story. Litigation finance is not just “likely the most important development in civil justice of our time,”⁵ it is also a highly important development for the capital markets and business arena. To fully appreciate the welfare effects of third-party funding, scholars and policymakers must study not only how litigation finance impacts litigation but also how it impacts finance; how it affects not only access to the courts but also access to the capital markets. This Article starts that process.

This Article is the first to shift the debate about litigation finance to a host of vital questions that are not currently being considered: How does litigation finance affect business competition? What impact does the rise of this new corner of the capital markets have on corporate strategy, including the use of litigation to gain a strategic advantage in the marketplace? Why do some companies finance litigations and other business activities with third-party litigation funding, rather than with more traditional third-party debt and equity financing? Who wins—and who loses—in the business arena when we impose regulations designed to restrict access to litigation finance? How do the answers to these questions bear upon the existing debate about funding?

One reason these questions about litigation finance have not yet been explored is that legal scholars do not have an accepted framework for analyzing how companies engage with litigation for strategic business purposes. We provide that framework by drawing on foundational business scholarship about “nonmarket strategies,” which provides an account of how companies leverage the courts, legislatures, and other “nonmarket” institutions to jockey for position in the market.⁶ The nonmarket strategy literature speaks directly to how companies interact with the judicial process to gain an advantage in the market, yet it has been almost entirely ignored by legal scholars.⁷ Although we introduce a nonmarket strategy approach in the context of how companies engage with litigation finance, this framework holds the promise of influencing legal scholarship across the waterfront of issues pertaining to business litigation.⁸

Analyzing litigation finance through the lens of nonmarket strategies, we highlight three ways the use of litigation finance affects competition in the market square. First, companies use litigation finance not only to finance litigation but also to raise working capital to support business growth, leveraging the courts (a nonmarket institution) to strengthen their capital position in the market. In this way, litigation finance is simply a new dimension of the financial markets and one that is especially likely to provide a lifeline to small and medium-sized enterprises (“SMEs”) that have relatively thin access to traditional equity and debt capital markets.⁹ Second, companies use litigation finance to pursue litigation as a nonmarket strategy—that is, they use litigation to obtain a strategic advantage relative to other marketplace actors, the same way well-resourced companies have done since long before the advent of the modern litigation finance industry.¹⁰ Third, we recast lobbying efforts to regulate litigation finance and the actions of related trade associations to support or attack litigation finance as, themselves, nonmarket strategies used by companies that stand to lose or gain from the growth of litigation finance.¹¹

These insights provide a fresh perspective on debates about litigation funding. First, we identify an entire set of funding’s policy implications that scholars and policymakers have overlooked. Existing discussions of litigation finance present only one view of the cathedral.¹² Litigation finance’s impact on litigation is explored at length but its impact on finance and business strategy is ignored. Scholars and policymakers cannot fully understand or effectively address litigation finance unless they explore its implications for both litigation and finance. Indeed, one could set aside entirely the debate about whether litigation finance is good for the legal system and still be left with a host of questions about whether litigation finance is good for business and finance.

Our study of the business and finance implications of litigation finance reveals that almost all companies use some form of third-party financing—“other people’s money”—to pay for litigation and other legitimate business pursuits.¹³ Some companies use traditional debt and equity financing. But for many companies—primarily SMEs—structuring a capital raise as a litigation finance investment is the most efficient, or even the only, way to raise new third-party capital. Litigation finance is thus used disproportionately by SMEs to pursue nonmarket strategies that might allow those firms to better compete against larger incumbent players. Regulation of modern commercial litigation finance may undermine SMEs’ ability to compete in the marketplace, likely diminishing welfare.

Second, our study of the finance implications of litigation finance also brings fresh insights to the existing debate about how litigation finance impacts the civil justice system.¹⁴ The traditional debate first defines third-party litigation funding and then zooms in on its impact on the legal system. We instead zoom out and place the modern litigation finance industry in the broader context of the many ways companies use third-party capital to finance litigation and other legitimate business pursuits. When we do this, we show that many arguments that third-party litigation finance adversely affects the civil justice system—that it might promote frivolous litigation, invite foreign control of litigation, and impair the principle of party control—apply equally or even more forcefully to the many other ways claimholders raise third-party capital to support litigation (for example, via traditional debt and equity capital). These insights both expose existing efforts to regulate litigation funding as vastly underinclusive relative to their stated goals and help us see the (mostly negative) welfare effects of targeting only one specific form of third-party funding—that is, the kind of third-party funding supplied by the modern litigation finance industry and especially demanded by SMEs.

This Article proceeds in five parts. Part I describes litigation finance and how it has been framed in the scholarly and policy debate, demonstrating that the narrow focus on litigation finance as a purely “litigation” phenomenon has led to ad hoc regulations and confusion by legislatures on how to manage litigation finance. Part II introduces the concept of nonmarket strategies and describes the various “nonmarket” strategic behaviors that companies pursue. Part III identifies three ways companies use litigation finance (and the regulation of funding) as a nonmarket strategy to jockey for position in the financial and commercial markets. Part IV offers policy implications of this new framework. Part V draws out implications of our framework for legal and business scholars.

I. Today’s Debate About Litigation Finance

We first provide a background on litigation finance, defining what it is and reviewing its scholarly and public policy debate.

A. What is Litigation Finance?

Imagine you are the CEO of a small, family-owned technology company. You invented high-flying weather balloons that operate as airborne communication systems. A much larger company suggests a joint venture, signs a nondisclosure agreement, and learns your trade secrets. In the end, no deal happens—but the larger company soon copies your tech anyway and recreates its own version of your weather balloons.¹⁵

Assume that to rebuild you need $15 million, including $5 million to bring a $150 million trade secret misappropriation case against your one-time joint venture partner and another $10 million to research and develop a next-generation weather balloon transceiver. You have a strong, and therefore valuable, legal claim.¹⁶ But you do not have $15 million. You approach the traditional debt or equity markets, but you experience the same problems many SMEs face: a thin capital market, high lending rates, and reluctant equity investors.¹⁷ What can you do?

An emerging solution is litigation finance, the practice where a third party provides capital to a litigant or law firm in exchange for an interest in the potential recovery of a legal claim.¹⁸ “Litigation funding agreement[s],” one court recently acknowledged, “are a fact of contemporary complex litigation.”¹⁹ Instead of trading away equity in the company or pledging assets to a traditional lender, you can pledge expected proceeds from your legal claim as collateral for the $15 million you need.

Litigation finance investments are typically “non-recourse,” which means the litigation funder receives its return only if the case succeeds.²⁰ If the case loses, the funder receives nothing.²¹ The non-recourse nature of litigation finance can make it attractive even to companies that can access the traditional equity and debt capital markets, because (unlike new equity investment) litigation finance does not dilute existing shareholders,²² and (unlike debt finance) funders do not have the right to regular payments of interest and principal or the power to put the company into bankruptcy or sue for recovery if those payments are not made.²³

The key insight, then, of the modern litigation finance industry is an insight not so much about the civil justice system but about corporate finance: legal claims are assets against which companies can secure financing, no different than inventory, real estate, and accounts receivable. In short, litigation funders are asset-based investors, and the asset is law.²⁴

Asset-based investing typically requires specialized expertise,²⁵ and litigation finance is no different. Instead of valuing a company’s real property or inventory, litigation finance companies expend great time and effort studying the merits of legal claims before advancing capital against those claims.²⁶ The need for subject-matter expertise has led to specialization among litigation funders.²⁷ Some litigation finance companies invest primarily in business-to-business disputes. These “commercial litigation funders” include publicly-traded companies like Burford Capital and Omni Bridgeway, multi-strategy hedge funds like the D.E. Shaw Group, and privately-held groups like Parabellum Capital and Certum Group.²⁸ Other financiers focus instead on financing mass tort claims, where they typically help law firms advertise for clients who have been injured in a particular mass tort.²⁹ Still other entities are consumer litigation funders, primarily providing small-dollar advances to individuals with personal injury and medical malpractice claims.³⁰

Commercial litigation finance companies typically undertake months-long due diligence processes before they invest in a case.³¹ Funders are staffed with highly experienced lawyers who develop specialized expertise in evaluating whether a case is a winner or loser.³² Funders frequently consult subject matter experts to assist with their evaluation, including outside diligence counsel and third-party damages experts.³³ The net effect is that commercial funders invest in only a tiny fraction of cases they see—typically less than 10% of opportunities.³⁴ In the end, it is likely that a funder’s evaluation process is even more rigorous than the evaluation provided by contingent fee law firms or by companies deciding whether to pursue a case with their own retained earnings.³⁵

In this Article, we focus on the commercial litigation finance space, which is by all accounts the largest and most prominent segment of the litigation finance industry and is also the emerging target of regulation by policymakers.³⁶ In 2023, there were an estimated thirty-nine active commercial litigation finance companies, with a total of $15.2 billion in assets under management.³⁷ These companies made $2.7 billion in new litigation finance commitments that year, with funding distributed across 353 new deals.³⁸ Commercial litigation finance companies invest in a range of business-to-business disputes, including contract, business tort, antitrust, patent infringement, trademark, copyright, and trade secret misappropriation cases.³⁹ Commercial litigation funders can finance either claimants or law firms,⁴⁰ and they can invest at any stage of the case, from pre-suit through appeal and post-judgment proceedings.⁴¹

Litigants and law firms can use litigation finance in two different ways: to pursue their legal claims and to raise general-purpose working capital. To begin with the first point, litigation is very expensive.⁴² Many litigants are liquidity-constrained: they lack access to the thousands or even millions of dollars it takes to pursue litigation.⁴³ Even if prospective litigants have the money to pursue the case, they may be risk-constrained: that is, they may not want to risk their capital in an uncertain litigation.⁴⁴ Law firms can litigate cases in exchange for a contingent fee—effectively operating as a third-party funder—but law firms are usually uniquely ill-suited to invest in litigation, for reasons that scholars have explored at length.⁴⁵ Litigation finance provides an alternative path for litigants and law firms to finance their cases.

The second way litigants can use litigation finance is by using the funding as working capital to finance general corporate endeavors, including to hire new workers, build new products, or invest in research and development.⁴⁶ In this sense, litigation funders operate similarly to traditional equity and debt providers, advancing capital in return for an interest in potentially valuable assets.⁴⁷ Although the focus of this Article is the use of litigation funding directly by claimholders, law firms may also use litigation finance as working capital—drawing down funding against

existing contingent fee matters to hire new employees and expand client services.⁴⁸

While commentators typically distinguish between funders’ supply of fees and costs funding on the one hand and working capital on the other hand, it is important to remember that money is fungible.⁴⁹ A dollar of third-party financing allocated for one purpose frees capital for other purposes.⁵⁰ Thus, even if a claimholder obtains third-party litigation funding that may be used only to pay its lawyers in a case, this financing frees up the company’s remaining capital to pursue other legitimate corporate purposes like paying employee wages, delivering goods and services, and so on.⁵¹ Similarly, when funders support law firms, this funding typically enables lawyers to enter into a “full contingency” relationship with their clients (with the firm’s fees partially funded by the litigation funder), enabling the claimholder to pursue a case without having to devote its finite resources to paying lawyers.⁵² Thus, even funding directed to law firms helps corporate claimholders free up capital for general corporate purposes.

B. The Scholarly Debate

Legal scholars are paying attention to what Maya Steinitz calls “likely the most important development in civil justice of our time.”⁵³ The scholarship about litigation finance is vibrant and growing. Yet virtually the entire collection treats litigation finance as fundamentally a litigation phenomenon. That is, scholars study litigation finance almost solely as a development in “civil justice,” examining how funding impacts the legal system.⁵⁴ The unit of analysis is the legal system, with proponents of litigation finance arguing that funding creates a better legal system and opponents arguing that funding hurts civil justice.⁵⁵ Indeed, even articles that apply an economic lens to litigation finance apply that lens to study how funding impacts litigation, not how funding impacts the financial markets or the broader business world.⁵⁶

Existing scholarship studies the litigation effects of litigation finance from many different and important angles. Scholars have debated whether litigation funding increases the amount of litigation and whether it results in the filing of frivolous lawsuits.⁵⁷ They have studied how litigation funding affects litigants’ access to the courts⁵⁸ and the price at which claims settle.⁵⁹ Scholars have studied how funding impacts the price of legal services and how it injects competition into the market for legal services.⁶⁰ They have explored whether litigation funding violates background legal rules about champerty and maintenance.⁶¹ They have studied whether litigation funding runs afoul of the legal ethics rules⁶² and whether funders interfere with (or strengthen) the attorney-client relationship.⁶³

An especially large body of scholarship studies whether litigation funding agreements and communications should be disclosed to the court and defendants during litigation, both as a policy matter and under the attorney work product doctrine and attorney-client privilege.⁶⁴ Control is another hot topic, with scholars debating whether funders should be allowed to control litigation strategy decisions.⁶⁵

This scholarship is important, but it studies litigation finance through a narrow lens: the effect that litigation finance has on the legal system. A few scholars have discussed the causes of litigation finance—that is, why companies use third-party litigation funding to finance their cases. But that scholarship (which includes our own) is mostly limited to explaining that companies typically use litigation funding because they are either liquidity-constrained—that is, they do not have the capital to pursue the case—or they are risk-constrained—that is, they do not want to risk their capital on litigation.⁶⁶ This explanation is true as far as it goes, but it goes only far enough to explain why companies would use third-party capital rather than retained earnings to finance litigation or working capital needs. While commentators have recognized the valuable non-recourse nature of litigation finance, no one has studied at depth why companies might use third-party litigation finance rather than the host of other ways they can raise third-party capital like traditional debt or equity finance to support their litigation and business endeavors.⁶⁷

Moreover, the emphasis on the litigation effects of litigation finance has also led to the near-exclusive study of litigation finance as a tool to finance the fees and costs of litigation. But, as explained above, that is only half the story: companies also use litigation finance to raise working capital that can be used to support non-litigation business needs like hiring employees.⁶⁸ And because money is fungible, “fees and costs” funding also frees up other capital for managers to reinvest in a company’s core market pursuits.⁶⁹ Scholars sometimes mention in passing that funding can be used to raise working capital, but the market impact of funding’s role as a source of general business capital has not been analyzed.⁷⁰

The existing scholarship about litigation finance is insightful and important—but it tells only half the story. To fully understand litigation finance, we must study its implications not just for litigation but also for finance—its implications for competition not only in the courtroom but also in the market square.

C. The Policy Debate

Alongside this scholarship stands a four-front policy debate about litigation finance. This policy debate tracks the scholarship by focusing on

funding’s impact on the civil justice system while ignoring its impact on the marketplace.

First, opponents of litigation finance are asking federal and state legislative bodies to enact regulations of litigation finance.⁷¹ While there are not yet any federal regulations that specifically target litigation funding, several states have acted. The first round of state statutes were essentially consumer protection statutes that targeted consumer litigation finance agreements, that is, agreements that typically concerned smaller-dollar advances to personal injury tort plaintiffs. State regulations in this mold were enacted in Arkansas, Indiana, Nebraska, and Vermont, among other states.⁷² These consumer-rights statutes require consumer litigation funders to register with the state,⁷³ provide funded parties with certain disclosures in the litigation finance contract,⁷⁴ and sometimes limit the interest rates funders can charge customers.⁷⁵ With respect to disclosure during litigation, those older regulations state that litigation funding documents are protected by the attorney-client privilege, thus making it harder for defendants to obtain information on a plaintiff’s funding agreements.⁷⁶

More recent “second wave” regulations focus on the commercial rather than consumer sector, and they demand more rather than less disclosure of litigation funding agreements. Emblematic second wave regulations include newly-enacted laws in Indiana⁷⁷ and Louisiana⁷⁸ and a failed bill in Florida.⁷⁹ The United States Chamber of Commerce, a business advocacy group, was a chief proponent of these bills.⁸⁰ While earlier consumer litigation funding statutes confirmed enhanced protection for litigation funding documents, the Indiana and Louisiana statutes, and the failed Florida bill, all provide that commercial litigation funding agreements are subject to discovery and disclosure to opposing parties.⁸¹ The statutes also contain other regulations designed to restrict litigation finance. For example, Indiana’s statute prohibits funders from exercising any control or even “influence” over litigation decisions,⁸² while the Louisiana statute requires litigation funders to be responsible for costs imposed on funded litigants⁸³ and provides that any violation of the statute renders a litigation finance contract unenforceable by the funder.⁸⁴

Advocacy groups, like the Chamber of Commerce, have recently argued that litigation funding may present a national security risk. They argue that foreign adversaries may use funding to harm American companies and obtain access to U.S. corporate trade secrets.⁸⁵ Supporters of litigation funding have pushed back against this narrative, claiming it is a scare tactic without basis in fact.⁸⁶ However, in response to these concerns, some states have enacted new laws. Indiana’s new law bans litigation funding from foreign adversaries of the United States, including China, Russia, and North Korea,⁸⁷ and Louisiana’s statute requires disclosure of anyone entitled to receive, pursuant to a funding agreement, any information affecting national defense or security disclosed during a litigation.⁸⁸

Second, in addition to the policy fight among legislators, there is a push to have judges themselves enact disclosure rules that target litigation funding.⁸⁹ In 2021, the U.S. District Court for the District of New Jersey became the first federal district court to adopt a disclosure rule targeting litigation finance companies’ involvement across all cases.⁹⁰ Chief Judge Colm Connolly of the U.S. District Court for the District of Delaware has also adopted the rule.⁹¹ This rule requires parties to disclose to the court if any non-party is funding the matter on a non-recourse basis.⁹² If such a funder exists, the litigant must disclose the identity of the funder, “[w]hether the funder’s approval is necessary for litigation decisions or settlement decisions in the action and if the answer is in the affirmative, the nature of the terms and conditions relating to that approval,” and “[a] brief description of the nature of the financial interest.”⁹³ The rule also states:

The parties may seek additional discovery of the terms of any such agreement upon a showing of good cause that the non-party has authority to make material litigation decisions or settlement decisions, the interests of parties or the class (if applicable) are not being promoted or protected, or conflicts of interest exist, or such other disclosure is necessary to any issue in the case.⁹⁴

Lawmakers opposed to litigation funding have also asked the Judicial Conference—the judicial branch’s national policymaking body for the federal courts—to investigate whether mandatory disclosure of litigation finance agreements should be required.⁹⁵ In response, the Judicial Conference has formed a working group to study whether the Federal Rules of Civil Procedure should address litigation funding.⁹⁶

Third, alongside efforts to persuade lawmakers and judges to enact regulations, the practice of litigation funding continues to be tested during litigation. Defendants routinely seek disclosure of litigation funding agreements and communications from plaintiffs.⁹⁷ Most courts reject these attempts, concluding that the communications are either not relevant to the case or protected by the work-product doctrine or attorney-client privilege.⁹⁸ But some courts have allowed some disclosure of litigation funding information, concluding that funding agreements may be relevant to issues including the adequacy of class counsel or the value of the plaintiff’s claim.⁹⁹ Courts have also addressed related legal questions including whether litigation finance violates prohibitions against champerty¹⁰⁰ and whether funders can exercise control over settlement decisions.¹⁰¹

Fourth, bar associations and legal ethics committees are increasingly being asked to decide whether litigation funding agreements violate applicable ethics rules. In 2020, the American Bar Association released a set of “Best Practices” for third-party litigation funding, which addressed topics including the handling of confidential information, the rule against fee sharing, and funding contracts.¹⁰² In addition, bar association ethics committees have weighed in on topics including whether agreements between funders and law firms violate the rule against lawyers sharing fees with non-lawyers,¹⁰³ whether litigation counsel should advise clients in the negotiation of litigation funding agreements,¹⁰⁴ how lawyers should approach the sharing of confidential information with litigation funders,¹⁰⁵ and whether lawyers may refer their clients to litigation funders.¹⁰⁶

On all four fronts, the policy debate has tracked the scholarly debate and suffers the same limitations. That is, the policy debate studies litigation finance solely as a litigation phenomenon, with one side arguing that litigation funding promotes a more level litigation playing field and the other side arguing that funding perverts the civil justice system. A simple illustration: litigation finance is discussed by congressional judiciary committees but wholly ignored by financial services committees.¹⁰⁷ One congressional committee debate in June 2024 exemplifies the narrow scope of the debate about funding, with the supporters of funding emphasizing its positive impact on the legal system and the detractors of funding alleging its detrimental effects on civil litigation.¹⁰⁸

The lobbying groups on either side of the debate similarly focus on the litigation effects of funding. As noted, the Chamber of Commerce is probably the most vocal critic of litigation funding and a driving force behind much of the recent state regulation of funding.¹⁰⁹ The Chamber has issued a number of attacks against litigation funding, and they all focus on funding’s impact on the courtroom, not the marketplace or the capital markets.¹¹⁰ Indeed, although the Chamber usually supports deregulating the capital markets and expanding small businesses’ access to capital,¹¹¹ the Chamber has not addressed how litigation finance might impact those goals. Meanwhile, the International Legal Finance Association—the trade association for the litigation finance industry—has likewise articulated the case for litigation funding as fundamentally about access to the courtroom, not access to the capital markets or the business marketplace.¹¹²

* * * * *

Existing scholarship and policy debates discuss funding’s impact on litigation but largely ignore its effect on finance and business strategy. When we reframe the debate about litigation finance around business strategy, we pave new paths to study litigation finance, its use cases, and its impact on society. These are questions that have not simply gone unanswered—they have gone unasked.

II. Nonmarket Strategies: A Primer

We explained in Part I that scholars and policymakers have largely overlooked litigation finance’s implications for corporate finance and business strategy. We believe this has happened in part because legal scholars lack a widely adopted framework for analyzing how companies strategically engage with litigation. In Part II, we provide that framework by drawing on a robust body of literature in business academia concerning “nonmarket strategies.” While business scholars pay great attention to nonmarket strategies, legal scholarship has almost entirely ignored the topic, despite its intimate connection to not only litigation finance specifically but also litigation more generally.¹¹³ In this section, we define and describe nonmarket strategies, identify different forms of nonmarket strategies, and discuss why companies use these nonmarket strategies.¹¹⁴

A. What Are Nonmarket Strategies?

Companies seek to maximize value for their shareholders and other stakeholders. This theme resonates in legal, ethics, and business scholarship¹¹⁵ The actions a company takes to maximize value are called strategies.¹¹⁶

Business research has long focused on how companies use the marketplace in which they operate to extract and maximize value. These behaviors are considered market strategies.¹¹⁷ Market strategies are “a concerted pattern of actions taken in the market environment to create value by improving economic performance.”¹¹⁸ The key element here is the use of the private market environment, which “includes those interactions between the firm and other parties that are intermediated by markets or private agreements. These interactions typically are voluntary and involve economic transactions and the exchange of property.”¹¹⁹ When companies operate with market strategies, they perform business activities like producing goods, hiring workers, contracting with counterparties, and engaging in mergers and acquisitions.

Recall the weather balloon company we discussed earlier. That company surely engaged in a host of market strategies to grow. These market strategies might include offering competitive wages to attract talented employees, conducting research and development into new technologies, entering into joint ventures and other strategic partnerships with other companies, contracting with suppliers, and marketing products. Each of these behaviors relies on private commercial markets, including the markets for labor, supplies, and customers.

The rise of institutional economics has drawn attention to strategic behavior beyond the market environment.¹²⁰ Business scholars have increasingly recognized that, in addition to traditional “market strategies,” companies also engage in strategies that use the “nonmarket.”¹²¹ The nonmarket environment “includes those interactions that are intermediated by the public, stakeholders, government, the media, and public institutions. These institutions differ from those of the market environment because of characteristics such as majority rule, due process, broad enfranchisement, collective action, and publicness.”¹²² The nonmarket environment includes the courts, the lawmaking process, interest group activities, and social and cultural institutions.¹²³

A nonmarket strategy, then, is a set of actions that utilizes the nonmarket environment to drive economic value.¹²⁴ These institutions create the “rules of the game” for competition in the marketplace.¹²⁵ Companies engage in nonmarket strategies when they leverage nonmarket institutions (for example, courts) to compete more effectively in the marketplace.¹²⁶

Our weather balloon company is likely to pursue a host of nonmarket strategies alongside more traditional market strategies. For example, it might lobby lawmakers for subsidies, sue companies engaging in anticompetitive behavior, or challenge government regulations adverse to its business interests.

B. The Types of Nonmarket Strategies

Business scholars have identified three types of nonmarket strategies that firms might pursue: adaptive strategies, transformative strategies, and additive strategies.¹²⁷ We discuss each in turn.

Adaptive Strategies

Adaptive strategies are nonmarket strategies that take the state of existing institutional nonmarkets as a given and attempt to either leverage or circumvent those nonmarket institutions to the actor’s advantage.¹²⁸ One common example is the use of litigation by a company to attack the market position of a direct or indirect competitor.

The Lanham Act is a common locus of adaptive nonmarket strategies, as it provides companies with a cause of action to sue a direct or indirect competitor for false advertising.¹²⁹ One leading Lanham Act case involved Johnson & Johnson’s false advertising suit against Procter & Gamble concerning over-the-counter (“OTC”) heartburn medication.¹³⁰ In 2003, Procter & Gamble launched the OTC heartburn drug Prilosec OTC, which was poised to compete with Johnson & Johnson’s incumbent Pepcid offering.¹³¹ Procter & Gamble’s marketing campaign suggested that one pill of Prilosec OTC would provide twenty-four hours of heartburn relief.¹³² Johnson & Johnson challenged this statement as false advertising, because the pill took up to five hours to start working.¹³³ A federal district court agreed with Johnson & Johnson and granted a preliminary injunction against the advertising campaign, ruling that Procter & Gamble’s advertisements were “literally false and certainly convey[ed] a false message.”¹³⁴

Johnson & Johnson’s litigation may be described as an adaptive nonmarket strategy because, rather than competing through the market system (for example, by using comparative advertising, a well-studied and researched marketing strategy¹³⁵), the company used existing legal institutions—specifically, the court system and liability rules—to gain market share from Procter & Gamble. Lawsuits like these help the plaintiff firm extract economic value from the marketplace, regardless of whether the competitor suit is welfare-enhancing for consumers.¹³⁶

Transformative Strategies

Companies may also engage in transformative nonmarket strategies, which are strategies that seek to alter a nonmarket institution that impacts the company.¹³⁷ In these cases, companies seek to lobby politicians, regulators, and courts to transform the rules of the game.¹³⁸

Lobbying is a classic example of a transformative nonmarket strategy. Ample work has examined the nature of lobbying as it relates to political processes and the law.¹³⁹ When companies lobby, their goal is frequently to have lawmakers (re)write the rules of the game in their favor.¹⁴⁰ For example, when the federal government responds to lobbying efforts by granting tax subsidies that offset the cost of installing electric vehicle chargers, the government effectively reduces the purchase price of electric vehicles. This gives electric vehicle manufacturers, like Tesla, a competitive leg up over manufactures of more traditional gas-powered vehicles.¹⁴¹

Transformative nonmarket strategies may also be directed toward the civil justice system. A company sometimes lobbies lawmakers to change court rules to favor itself. One recent example is illustrative: after Apple lost two prominent patent cases before the U.S. International Trade Commission (“ITC”), the company asked Congress to change the rules governing how the ITC adjudicates complaints and enforces penalties.¹⁴² These rules, if adopted, would make it more difficult for parties to prevail in ITC suits against Apple, giving the company a competitive advantage in the marketplace.¹⁴³

Litigation can also be a form of transformative nonmarket strategy. We discussed above how litigation functions as an adaptive nonmarket strategy when a company uses it to enforce existing rules against competitors. By contrast, litigation is used as a transformative nonmarket strategy when companies bring court challenges to government regulations that impair their business efforts. From one perspective, these litigations simply ask courts to affirm that an inferior law must give way to a supreme law.¹⁴⁴ From another perspective, however, these litigations are nonmarket strategies that ask courts to transform the legal “nonmarket” environment in which firms operate.

For a recent example of litigation as a transformative nonmarket strategy, consider the Chamber of Commerce’s lawsuit challenging the Federal Trade Commission’s rule banning non-compete agreements between employers and employees.¹⁴⁵ Although the Chamber does not disclose its individual donors, the Chamber is financed by corporations and engages in strategic litigation on their behalf.¹⁴⁶ To satisfy standing requirements, the Chamber invokes the associational standing doctrine, which allows the Chamber to vindicate its members’ interests.¹⁴⁷ The Chamber’s challenge to the rule against non-competes is a transformative nonmarket strategy because it seeks to use the nonmarket environment of courts to create a market environment in which companies have greater leverage over their employees, giving them a potential competitive advantage in the marketplace.

Thus, litigation can be used as part of both adaptive and transformative nonmarket strategies. The distinction between the two generally tracks the distinction between the enforcement of “private law” and “public law.”¹⁴⁸ “Private law” refers to litigation that ordinarily occurs between private individuals or companies.¹⁴⁹ As Abram Chayes has explained, private law litigation is typically retrospective—that is, it involves a controversy over an “identified set of completed events” and in which the right and remedy are interdependent. The typical remedy is “that the plaintiff will get compensation”—money damages—“measured by the harm caused by the defendant’s breach of duty.”¹⁵⁰ Adaptive nonmarket strategies typically take this form, with one company litigating a private law claim against another company.

Transformative nonmarket strategies typically involve litigation over the validity of laws and regulations themselves. In such cases, the defendant is usually a governmental body and the primary relief sought is almost always declaratory or injunctive, not retrospective damages. Companies usually engage in public law litigation as part of a transformative strategy to require or prevent the enforcement of laws on issues of public concern—such as civil rights, environmental law, or administrative law.¹⁵¹

Additive Strategies

Additive nonmarket strategies work “by supplementing [existing institutional] structures with new, decentralized ones to which participants commit voluntarily rather than in response to a mandate from the state, thus creating a polycentric institutional structure.”¹⁵² Rather than simply take the institutions as a given, companies seek to augment institutional structures to give themselves a competitive advantage.¹⁵³

In one common additive strategy, companies engage in self-regulation, either acting alone or in concert with competitors. For example, companies may band together into an industry trade association and sign on to certain “standards of conduct,”¹⁵⁴ or they may all agree to certain voluntary business practices.¹⁵⁵ When acting alone, companies may act solely to reduce a perceived negative externality with the hope of setting an industry norm, resulting in benefits to the firm.¹⁵⁶ Traditional corporate social responsibility (“CSR”) behaviors also fall into this nonmarket strategy.¹⁵⁷ CSR strategies include, for example, voluntary environmental and socially-sustainable practices.¹⁵⁸ Companies frequently undertake these behaviors with the hope that stakeholders will reward the company and hence further enhance the firm’s economic value. But additive strategies also seek to anticipate or influence institutional changes. Companies may voluntarily take costly behaviors in anticipation that regulators will eventually enact rules of conduct that the firm has already adopted, leaving the firm better positioned to succeed in the market.¹⁵⁹

C. The Choice Among Nonmarket Strategies

Not all strategies are created equal. Companies consider a range of internal and external factors when deciding whether and how to use nonmarket strategies.

External factors include the nature of both market and nonmarket institutions.¹⁶⁰ Some jurisdictions, including the United States, have clear laws and regulations that allow for relative predictability in outcome.¹⁶¹ Other jurisdictions, including many developing countries, may have no laws, or either unclear or incomplete laws, governing business conduct.¹⁶² Whether an institution is relatively “complete” or “captured” (as in the United States) or relatively “incomplete” (as in many developing countries)¹⁶³ influences which type of nonmarket behavior a company may engage in.

Internal factors also affect which strategies a company may use. For example, some companies may develop a comparative advantage in implementing certain nonmarket strategies over others.¹⁶⁴ These so-called firm-specific capabilities drive which nonmarket strategies firms pursue.¹⁶⁵ Research on firm-specific capabilities analyzes a company’s unique strengths and asks what strategies the company may use to leverage these unique strengths.¹⁶⁶ The goal is to create sustained, long-term competitive advantages in the marketplace.

Consider, for example, a company that can recruit former politicians into its ranks.¹⁶⁷ Relative to its competitors, that company has a comparative advantage in transforming the institutional rules in which it operates. The firm’s political connections provide it with superior insight into how certain regulations will be interpreted and implemented. These capabilities may also

give the firm a comparative advantage in influencing which regulations are made or unmade. Such a firm is more likely to use transformative strategies, as it has unique capabilities to influence regulations.¹⁶⁸

A firm’s capabilities will also help predict whether a company will use a market or a nonmarket strategy in the first place.¹⁶⁹ Certain companies, as we describe using examples below, can more cheaply and efficiently engage in nonmarket strategies in comparison to more traditional market ones. As we argue, SMEs may find it cheaper to engage in capital funding using nonmarket strategies than market ones.

III. Litigation Finance as a Nonmarket Strategy

Litigation finance is an important development not only for the civil justice system but also for the capital markets and marketplace at large. Companies use litigation finance to compete not only in the courthouse but also in the market square. Drawing upon the nonmarket strategy literature discussed above, we illustrate three ways companies engage with litigation finance to help themselves better compete in the marketplace.

The chart below provides a roadmap for our discussion. This chart indicates the types of strategies, the result each strategy seeks to achieve, an example of the strategy, and the business benefit the strategy creates. We also note that some of these strategies involve the use of litigation finance while others involve the regulation of funding.

A. Litigation Finance as Corporate Finance: An Adaptive Strategy

The best things in life may be free, but everything else costs money. Corporate finance is the discipline that studies how companies finance their business pursuits.¹⁷⁰ We first provide a brief overview of the traditional ways companies finance their activities. We then demonstrate how litigation finance operates as an alternative “nonmarket” way to access investment capital and finance business pursuits, including but not limited to the financing of litigation. Using litigation finance in the way we describe below is a type of adaptative nonmarket strategy.

“Market” Methods of Corporate Finance

Companies need money to pursue the waterfront of legitimate corporate activities, including hiring employees, manufacturing products, marketing their goods, investing in research and development, and yes, sometimes pursuing litigation. Firms use one of three broad categories of finance: retained earnings, equity, and debt.¹⁷¹ All three involve the company appealing to traditional market institutions: the marketplace for goods and services to obtain revenue that can then be used to finance future business activities, or the capital markets, in which third parties provide debt or equity capital in exchange for an anticipated return on their investment.¹⁷²

Recall the weather balloon company that needs $15 million in financing, including $5 million to pursue litigation and $10 million for research and development. To come up with the cash, first, the company could use its retained earnings, that is, profits or revenue in excess of expenses.¹⁷³ Second, the company might raise debt from third parties. These loans can be either unsecured or secured.¹⁷⁴ Unsecured loans rely on the borrower’s creditworthiness and future cash flows.¹⁷⁵ Secured loans are backed by company assets.¹⁷⁶ Secured loans may be further categorized: some are secured by all company assets, while others are “asset-based” loans secured by only a specific subset of the company’s assets.¹⁷⁷ Third, the company might raise equity financing, selling ownership interests in the firm in exchange for capital.¹⁷⁸

Several points bear emphasis. First, both debt and equity financing usually involve companies raising capital from third party investors.¹⁷⁹ Creditors remain third parties after the transaction is consummated; that is, they do not become first-party owners of the company.¹⁸⁰ Equity investors, by contrast, are third parties relative to the company before making their investment and come inside the company as first-party owners after the transaction is consummated. Thus, if a firm like our weather balloon company needs capital to fund litigation and research, there is a good chance it would approach the capital markets and raise capital from third-party investors, with those investors expecting their return to come from some or all of the firm’s assets.¹⁸¹

Second, a firm’s choice between using retained earnings, debt, and equity to finance business endeavors is typically driven by questions of corporate finance and business strategy. Classical corporate finance theory teaches that, in perfect markets without transaction costs, firms should be indifferent between using retained earnings, debt, and equity.¹⁸² In reality, markets are not perfect and firms are not indifferent.¹⁸³ There is an entire discipline—corporate finance—devoted to studying firms’ decisions about how to finance their business activities.

A corporate finance literature review is beyond the scope of this Article. It is sufficient for present purposes to identify a few tradeoffs that companies face when deciding whether to finance their business activities through retained earnings, debt, or equity.¹⁸⁴

For example, companies may prefer to use retained earnings because they can act quickly when they see an investment opportunity, avoiding the time-consuming and scrutiny-inducing process of raising money in the capital markets.¹⁸⁵ On the other hand, existing shareholders may prefer to receive those earnings as dividends today and shift the risk of tomorrow’s success onto third-party debt or equity capital.¹⁸⁶ Debt finance frequently has tax advantages,¹⁸⁷ and it usually caps creditors’ upside, ensuring shareholders receive any surplus profits generated when the company invests the loan.¹⁸⁸ On the other hand, debt instruments usually saddle the debtor with relatively inflexible payment obligations, requiring the company to regularly generate cash to pay interest on the debt.¹⁸⁹ An advantage of equity financing is that equity investors have fewer downside protections than lenders, which means equity is usually “riskier capital” than debt.¹⁹⁰ Thus, early-stage companies and other businesses without a proven track record can raise third-party capital in the equity markets even when the debt markets are closed to them.¹⁹¹ On the other hand, raising new equity dilutes existing shareholders, who may prefer not to have their ownership interest and decision-making power reduced.¹⁹²

The upshot for our purposes is that firms select their method of corporate finance for reasons very specific to that firm and the firm’s regulatory environment. Preferences and market access will vary according to a host of factors, including the firm’s size and strength, its industry, its geography, and the regulatory landscape.

Third, while all companies in principle can use retained earnings or obtain third-party debt or equity, in practice, SMEs usually do not have access to substantial retained earnings or to liquid debt and equity markets.¹⁹³ There is a robust literature explaining how and why SMEs face challenges accessing traditional capital markets.¹⁹⁴

Again, a comprehensive literature review is beyond the scope of this Article. It is sufficient to repeat the oft-made insight that information asymmetries, transaction costs, and other market inefficiencies result in SMEs either being totally cut off from the debt and equity markets or facing much higher costs of capital relative to more established incumbent players.¹⁹⁵ Prospective investors in smaller companies face much larger information asymmetries compared to when they invest in larger companies that are publicly traded and have armies of analysts studying their every move.¹⁹⁶ Increased information asymmetry means increased risk, and increased risk means higher borrowing costs.¹⁹⁷ In short, it is generally much harder for SMEs to find willing investors or lenders, and when they do, they typically face a much higher cost of capital compared to larger companies.¹⁹⁸ Similarly, SMEs almost by definition do not have significant retained earnings to invest in business-critical projects, including research and development, launching new products, or paying lawyers for bet-the-company litigation.

When SMEs can access third-party capital, they tend to gravitate towards bank loans with personal guarantees or towards higher-cost secured credit, in which a third-party investor lends against discrete collateral and has the right to foreclose on that collateral if the debtor fails to repay the loan.¹⁹⁹ With asset-backed transactions, the financier treats the collateral as the primary or, indeed, sole source of repayment and thus does not need to rely on the counterparty’s general creditworthiness, enabling loans to go to companies that cannot qualify for unsecured debt or equity investments.²⁰⁰

We thus have a rough hierarchy of firms’ ability to access the capital markets. Larger, more established firms generally have the best access to equity and debt markets. SMEs often have thin or no access to the capital markets. But SMEs with high-quality assets can frequently obtain secured loans even when unsecured lending or equity investment is not an option.

Litigation Finance as a “Nonmarket” Method of Corporate Finance

Enter litigation finance. We explained earlier that the central insight of the modern litigation finance industry is an insight about corporate finance—namely, that a strong legal claim is a valuable asset that can be used to secure third-party financing. Litigation finance may be characterized as asset-based finance in which the asset is a legal claim, and the financing can be used either to secure financing to pursue the legal claim itself or to secure working capital that can be used for general corporate purposes. Put differently, if a company needs money to invest in litigation, research, or any other legitimate business pursuit, it can use retained earnings, it can raise equity investment, it can raise traditional types of secured or unsecured debt—or it can raise litigation finance.

But we just explained that (a) companies face tradeoffs when deciding whether to use retained earnings, debt, or equity finance, and (b) not all companies have equal access to all of these forms of capital. The same holds true for litigation funding. The latter point is easier to make: litigation finance is only available to companies with strong legal claims that typically involve plaintiff-side litigations with sizable damages potential.²⁰¹ If you do not have a litigation claim, you cannot obtain litigation finance.

As for tradeoffs, there are pros and cons to the use of litigation finance. Many of the drawbacks concern the high transaction costs inherent in litigation funding deals. Because commercial litigation funders perform comprehensive diligence into funded matters, funded deals often take months to close. Companies that need financing quickly—whether because their case has a statute of limitations issue, they urgently need capital to hire new employees, or they have some other reason—may prefer to use readily available retained earnings, or existing access to equity or debt investors, rather than wait months for litigation funders to complete their work.²⁰²

As we explained, litigation funders typically perform more comprehensive diligence on a company’s legal claim compared to other forms of financing.²⁰³ Companies that use retained earnings do not have to subject their decision to pursue a legal claim to the discipline of the market.²⁰⁴ Meanwhile, traditional equity or debt financiers do not usually invest based on the value of legal claims and thus are unlikely to scrutinize the legal claim before providing financing.

The regulatory landscape concerning litigation funding also imposes transaction costs. Litigation funders typically request to see case confidential information before investing in a lawsuit. And defendants typically seek disclosure of litigation finance agreements and communications, in part to gain a strategic advantage in the litigation.²⁰⁵ The early statutes regulating consumer litigation finance deals recognized this fact and reacted by ensuring that communications with funders do not impair the protections of the work product doctrine or attorney-client privilege.²⁰⁶ Ironically, the more recent statutes recognize this fact, too, except that they mandate rather than prohibit litigation finance disclosure.²⁰⁷ Regulations that impede funders’ access to full and transparent communication from prospective funded parties, present lurking regulatory challenges, and limit funders’ ability to control litigation all effectively increase the funder’s risk and thus increase the price funded parties must pay for litigation funding.

Against these drawbacks stand the benefits of using litigation finance. Such funding is typically non-recourse, which means the company can secure financing backed only by a discrete legal asset.²⁰⁸ Litigation finance is thus frequently preferable to debt, since the funder does not have an absolute right to be repaid and the attendant enforcement rights that creditors have. And funding is frequently preferable to equity, as litigation funding does not dilute existing shareholders.²⁰⁹ Funders, like other asset-backed lenders, also have specialized expertise, which can help the company maximize the value of its legal assets. Moreover, because traditional debt and equity financiers are not trained in valuing legal claims, they are likely to undervalue legal claims relative to litigation funders.

But perhaps the most important reason many companies—especially SMEs—use litigation finance is simply that these businesses have no other choice. Most companies do not have millions of dollars in retained earnings to invest in litigation or research and development. Most companies are not publicly traded and do not have investment bankers who help them access liquid pools of debt and equity capital. Traditional equity and debt financing is either prohibitively expensive or effectively unavailable to these many enterprises. And most companies do not have substantial assets like inventory, machinery, or real property that can serve as the basis for asset-backed loans.²¹⁰

For these reasons, SMEs are leading consumers of litigation finance.²¹¹ They use litigation finance not only to finance their cases but also to obtain lower-cost capital than they could access in the traditional capital markets.²¹² Simply put, companies most likely to use litigation finance are SMEs that have difficulty accessing capital in the more traditional capital markets.

The implications for the scholarly and political debate about funding are significant. Companies use litigation finance not simply because it gives them better access to the courts. They use litigation finance because it gives them better access to the capital markets. Companies use litigation finance as an adaptive nonmarket strategy, leveraging their legal claims to secure financing that allows them to grow their businesses and better compete in the marketplace. This is especially true when a company secures litigation finance to obtain general working capital, for in that sense, litigation finance companies serve an identical function to financiers in other corners of the capital markets: they are third parties who provide investments secured by company assets. This insight holds true when they secure funding to pay the fees and costs of litigation: money is fungible, and by obtaining financing for their litigation, they free up other cash to invest in their core business.

B. Litigation Finance to Pursue Litigation: Adaptive and Transformative Strategies

We explained earlier that businesses frequently seek a competitive market advantage by engaging in litigation, including by bringing suit against competitors, customers, suppliers, or regulators. Companies use the court system to gain a strategic advantage in the marketplace and drive economic value to themselves.²¹³ Winning the litigation is a secondary consideration, or more precisely, a necessary antecedent to the ultimate goal of winning in the marketplace. Companies use litigation as an additive nonmarket strategy when they use litigation to enforce existing rules and regulations against other market participants in the hope of achieving an advantage in the marketplace.²¹⁴ These litigations are typically “private law” disputes seeking money damages. By contrast, companies use litigation as a transformative nonmarket strategy when they use the court system to transform the rules and regulations that affect their business, typically by challenging the legality of laws and regulations.²¹⁵ These litigations are typically “public law” disputes seeking declaratory and injunctive relief.

If a company wants to use litigation as a nonmarket strategy, it needs money to pursue that claim. Litigation is expensive, and some firms (generally, SMEs) are at a comparative disadvantage in terms of their ability to use retained earnings to file suit or to access traditional capital markets to raise debt or equity capital that can be used to finance litigation.

A firm’s relative inability to use litigation as a nonmarket strategy puts the firm at a comparative disadvantage in its ability to compete in the marketplace. Compared to larger players, the firm is relatively unable to pursue private law claims against other market participants to bolster its position in the market, and it is also comparatively less able to pursue public law claims that attack unfavorable government regulations. Thus, litigation finance helps level the playing field in the marketplace by enabling SMEs to have greater ability to use litigation as a nonmarket strategy. The battle over litigation finance must then be understood at least in part as a battle over which companies have access to litigation as a nonmarket strategy.

Our argument here does not presume that any and every nonmarket strategy is necessarily welfare-enhancing. Indeed, scholars have questioned the value of litigation through a host of normative lenses. For example, some have argued that private law litigation between two parties does not maximize welfare for either the parties to the litigation or society as a whole.²¹⁶ Likewise, the use of lobbying—a transformative strategy—has been challenged as inefficient rent-seeking.²¹⁷ While resolution of these underlying questions is beyond the scope of this Article, we offer three relevant comments.

First, the question for purposes of this Article is not whether litigation (or lobbying for that matter) should be used as a nonmarket strategy. Litigation has been used for strategic business reasons since long before the rise of the modern litigation finance industry, and well-resourced companies will continue to use litigation as a nonmarket strategy even if third-party litigation finance is stamped out of existence. The question instead is whether the ability to use litigation for strategic purposes should primarily be the domain of companies more likely to rely on retained earnings or traditional capital markets to pursue litigation or whether it should also be the domain of smaller firms more likely to use third-party litigation finance.²¹⁸ Put differently, even if one believes the “first-best” policy would be for no one to use litigation as a nonmarket strategy, the second-best solution is not necessarily to allow well-resourced incumbents to use nonmarket strategies while stripping smaller competitors of the means to do so too.²¹⁹

Second, there are good reasons to believe that cases funded by litigation funders are less likely to exacerbate broader concerns about the use of litigation as a nonmarket strategy. We previously discussed funders’ rigorous due diligence process, which tests a case’s merits in the courtroom, not its impact on the plaintiff’s market position.²²⁰ Because funders need their return to come from a court settlement, they generally do not benefit if a funded case results in a small monetary settlement but a significant market advantage for the funded party. Put differently, litigation funders are less likely to back cases that help companies win in the marketplace unless the company is also likely to win in the courtroom. Thus, although some critics of litigation finance argue that funders may promote frivolous litigation, the opposite is more likely to be true: cases funded by litigation funders are probably less likely to be weak, competitor-bullying cases than are most other cases, because funded cases are subject to more pre-filing scrutiny than other cases.

Third, litigation finance is more likely to be used in contexts where litigation is used as an adaptive rather than a transformative strategy. Because litigation funders invest on a non-recourse basis, receiving their recovery only from case proceeds, they typically only invest in cases where the plaintiff seeks money damages, not injunctive relief.²²¹ Thus, litigation funders frequently finance competitor suits like patent suits, false advertising cases, unfair competition suits, and so on, all of which are within the domain of adaptive nonmarket strategies. But litigation funders are highly unlikely to finance cases that pursue transformative strategies, as those suits are more likely to be cases brought against governmental entities seeking declaratory and injunctive relief, usually in the form of a court order finding a particular regulation unenforceable.

Larger firms that do not need litigation finance (for example, the Apples and Intels of the world) are more likely to pursue litigation as a transformative strategy rather than an adaptive strategy. In a related context, scholars have studied the different litigation preferences of repeat players compared to “one shotters.”²²² Larger corporations tend to be repeat players, whereas smaller firms and individuals tend to be one-shotters.²²³ And larger companies are more likely to be sued than to sue for violations of patent, antitrust, unfair competition, trademark, and copyright laws. For this reason, they are less likely to pursue meritorious plaintiff-side cases involving those underlying legal theories because they do not want to establish precedent that expands liability in those domains. For example, a victory in a specific patent case for Apple may be Pyrrhic if it expanded Apple’s liability for patent infringement in dozens of other cases.

Litigation used as a transformative strategy—that is, as a strategy to invalidate rules and regulations—presents a different story. In general, larger firms will be more comfortable with plaintiff-side litigation that develops precedent in ways that restrict the power of regulatory bodies, such as precedent overruling the Chevron doctrine or invalidating agency regulations. This insight helps explain why the Chamber of Commerce strongly opposes modern commercial litigation finance even as it actively pursues public law litigation to benefit its own financiers.²²⁴

In sum, (a) large and small companies can use litigation as a nonmarket strategy, (b) litigation finance is primarily used by smaller companies to implement adaptive nonmarket strategies, and (c) larger companies that have less of a need for litigation finance are more likely to pursue transformative strategies and disfavor litigation involving adaptive strategies. From these points emerges an important implication for the policy debate about litigation finance: regulations of litigation finance, with their focus on third-party funders’ receipt of money damages rather than injunctive relief, target the use of litigation as an adaptive strategy, primarily as employed by SMEs. If the battle over litigation finance is partly a battle over which companies can use litigation as a strategy to better compete in the marketplace, then the regulation of litigation finance will generally tend to give larger companies a comparative advantage over smaller companies.

C. Lobbying and Trade Associations: Transformative and Additive Strategies

Litigation finance has become a contentious policy issue, with regulations being considered by state and federal lawmakers and judges alike. The opponents of litigation finance are lobbying lawmakers and judges, asking them to impose regulations that range from mandatory disclosure rules and registration requirements to rate caps and even bans on funding.²²⁵ These efforts are led by the United States Chamber of Commerce, a business lobby, and by major corporations that have found themselves as defendants in funded cases.²²⁶ The supporters of funding have launched their own counter-offensive, trying to stave off the regulations they believe will hinder the industry’s growth.²²⁷ The funding community’s efforts are led by the International Legal Finance Association (“ILFA”), a nonprofit organization whose mission is to promote litigation finance and represent funders’ interests before lawmaking bodies like the United States Congress.²²⁸

As we have demonstrated, participants in the policy debate focus on funding’s impact on the civil justice system.²²⁹ Our analysis suggests a different interpretation: the policy fight itself must be understood at least in part as a nonmarket strategy where the stakes are success in the market. Many companies stand to either win or lose in the marketplace when litigation finance becomes widely available. Efforts by groups like the Chamber of Commerce and businesses to impose burdensome regulations on the litigation finance industry represent a classic example of that common transformative nonmarket strategy: lobbying.²³⁰ These enterprises are trying to transform the laws and regulations governing funding to essentially increase the transaction costs associated with third-party litigation finance, with the goal of ultimately giving larger firms a comparative advantage in the marketplace.

Litigation funders have also responded by forming ILFA, a trade association. ILFA engages in lobbying as its own transformative strategy in response to efforts to regulate litigation funding. ILFA has also promulgated a set of best practices for funders, which includes an emphasis on clarity, avoidance of conflicts of interest, confidentiality, respect for court rules, and capital adequacy.²³¹ ILFA’s members voluntarily commit to these standards.²³² Trade associations that set standards for an industry present prime examples of additive nonmarket strategies.²³³ Companies voluntarily sign onto these trade associations, they fund them, and ultimately, they follow the advice of these trade associations.²³⁴ The goal is frequently to insulate an industry from further external regulation through self-regulation.²³⁵

By voluntarily committing to the standards set by ILFA, financiers can accomplish several strategic goals. By self-regulating, they may avoid “being subject to government rules which may be more onerous or less efficient than the rules defined locally by the actors themselves.”²³⁶ The legal profession itself is largely self-regulating through the code of legal ethics, allowing lawyers primarily to regulate themselves rather than being subject to external government regulation.²³⁷ Moreover, by organizing behind a group like ILFA, funders can signal to stakeholders that they take seriously their obligations to justice and the legal system. The goal here is to create a system where financiers are “rewarded for establishing a norm of better behavior, either by those who benefit from their actions directly, or from those who value responsible behavior more generally.”²³⁸

IV. Policy Implications of Litigation Finance as Nonmarket Strategy

We have demonstrated that litigation finance has powerful implications not only for the legal system, but also for finance and business competition. The primary contribution of this Article is thus to identify a new dimension of study for scholars and policymakers who wish to understand the welfare effects of litigation finance. We provide a nonmarket strategy framework for understanding how litigation funding impacts finance and business.

We now provide some initial observations for how our insights affect debates about funding. First, we identify implications related to funding’s impact on the marketplace. Second, we draw implications for the existing debate about funding’s impact on the civil justice system.

A. A New Dimension to the Policy Debate

Companies use litigation finance to compete not only in the courtroom but also in the marketplace. Scholars and policymakers cannot fully understand and effectively regulate litigation finance unless they account for these overlooked welfare impacts.

A Regulation of the Capital Markets

Recent efforts to regulate “third party litigation finance” cannot be understood as efforts to broadly regulate the practice of third parties funding lawsuits in the civil justice system. Rather, the proposed regulations are targeted at a particular corner of the capital markets—and a corner more likely to be used by SMEs.

Consider two enacted regulations: a federal court’s local rule requiring disclosure of certain third-party financing agreements, and an exemplary state law regulating certain third-party financing arrangements. These regulations do not target third-party funding writ large. Rather, they target very specific types of corporate transactions.

We begin with the District of New Jersey’s Local Rule requiring mandatory disclosure of certain litigation funding arrangements, which has been copied verbatim by Judge Colm Connolly in the District of Delaware. The rule requires disclosure of any

person or entity that is not a party and is providing funding for some or all of the attorneys’ fees and expenses for the litigation on a non-recourse basis in exchange for (1) a contingent financial interest based upon the results of the litigation or (2) a non-monetary result that is not in the nature of a personal or bank loan, or insurance.²³⁹

Subtle nuances in the Rule’s language work to require disclosure only of certain forms of third-party finance. The rule covers entities that are “not a party” to the litigation and provide finance “on a non-recourse basis.” These limitations carve out traditional equity and debt financing. If a company raises equity financing from third parties with the goal of using that money to pursue litigation, disclosure is not required because the third-party investor essentially becomes a first-party owner. This new equity holder could very well hold voting rights to control the company’s activities, including its litigation. Meanwhile, the reference to “non-recourse” financing carves out traditional forms of unsecured or secured credit, which typically rely on the firm’s general creditworthiness (unsecured loans) or discrete assets like receivables or machinery (secured loans).

The Rule also excludes from disclosure instances where a company finances a third party seeking injunctive relief, as when companies provide financing to entities like the Chamber of Commerce so that the Chamber can seek declaratory and injunctive relief in public law cases. Companies that finance third parties seeking injunctive relief do not retain “a contingent financial interest” in the litigation, nor do they finance in exchange for “a non-monetary result that is not in the nature of a personal or bank loan, or insurance.” They simply finance the pursuit of injunctive relief that will necessarily benefit their business.

A similar analysis may be applied to a recent law enacted in Louisiana, SB355, which requires disclosure of litigation financing agreements and prohibits funders from controlling litigation.²⁴⁰ The statute has a lengthy definition of “third-party litigation funder” that excludes from its coverage many entities that are in fact third-party litigation funders. The statute’s 300-plus word definition of “litigation financing” provides:

“Third-party litigation funder” means any person or entity that provides funding intended to defray litigation expenses or the financial impact of a negative judgment related to a civil action and has the contractual right to receive or make any payment that is contingent on the outcome of an identified civil action by settlement, judgment, or otherwise or on the outcome of any matter within a portfolio that includes the action and involves the same counsel or affiliated counsel. This term does not apply to:

(a) The named parties, counsel of record, or law firm of record providing funding intended to defray litigation expenses related to the civil action.

(b) A person or entity providing funding solely intended to pay costs of living or other personal or familial expenses during the pendency of such civil action where such funds are not used to defray litigation expenses.

(c) Counsel of record, or law firm of record, or any referring counsel providing legal services on a contingency fee basis or to advance his or her client’s legal costs where the services or costs are provided by counsel of record or law firm of record in accordance with the Rules of Professional Conduct.

(d) A health insurer, medical provider, or assignee that has paid, is obligated to pay, or is owed any sums for health care for an injured person under the terms of a health insurance plan or other agreement.

(e) A financial institution providing loans made directly to a party, counsel of record, or a law firm of record when repayment of the loan is not contingent upon the outcome of such civil action or on the outcome of any matter within a portfolio that includes such civil action and involves the same counsel or affiliated counsel.

(f) A nonprofit legal organization exempt from federal income tax under 28 Section 501(c)(3) of the Internal Revenue Code, or any person providing funding to a nonprofit legal organization that represents clients on a pro bono basis. This Subparagraph does not affect the award of costs or attorney fees to a nonprofit legal organization or related attorney.²⁴¹

Each of the exclusions in subsections (a) through (f) is in fact an instance of third parties to the litigation that provide financing to support the litigation. Subsection (b) exempts third-party funding provided for a particular use of funds. Ignoring that money is fungible, the statute permits funders to provide capital that is specifically used for “costs of living or other personal or familial expenses,” so long as that money is not diverted “to defray litigation expenses.” Subsection (b) does not permit funders to provide capital used for corporate working capital, thus ensuring that the statute regulates discretionary financing to companies but not to individuals.

The remainder of the exclusions carve out various entities that provide third-party funding. Subsections (a) and (c) exempt lawyers (third parties to the litigation) who finance the litigation on a contingent fee basis, while subsection (a) also allows one party to the litigation to finance the litigation of their co-plaintiffs. Subsection (d) exempts insurers. Subsection (e) carves out all third-party investments that are non-recourse and limited only to the legal claim. In other words, subsection (e) recognizes that many companies use general-recourse third-party debt and equity financing to back their litigation, but it excludes those entities from having to disclose their funding. Meanwhile, subsection (f) excludes nonprofit entities organized under section 501(c)(3).

The definition of “third-party litigation funder” also only covers entities with a “contractual right to receive or make any payment” from the funded case.²⁴² This definition therefore excludes all funders that seek declaratory or injunctive relief in public law matters (as opposed to money damages relief in private law matters). This exclusion applies, for example, to organizations like the Chamber of Commerce’s Litigation Center, a 501(c)(6) organization that raises money from donors to pursue injunctive relief against government entities (pursuing transformative nonmarket strategies on behalf of its backers). The Chamber’s proposed regulations of third-party funding carve out the form of third-party funding that the Chamber uses.

In sum, the New Jersey disclosure rule and Louisiana statute, which are emblematic of other proposed and enacted regulations,²⁴³ do not broadly regulate the practice of third parties financing the pursuit of legal claims. Rather, they target specific forms of third-party funding, with a definition based on the corporate form of the transaction and the parties thereto. The regulations turn primarily on the financier’s corporate status (e.g., whether it is a law firm, nonprofit, or profit-seeking funder), the collateral for the financier’s investment (e.g., whether it is broad-recourse equity or debt, or recourse only to the litigation), and whether the financier’s expected return is tied directly to a monetary result in a case. Certain types of companies are more likely to prefer the narrow category of third-party funding regulated by these rules and statutes. Specifically, SMEs are more likely to structure their third-party capital raises using modern commercial litigation finance, regardless of whether they use the litigation funder’s investment to pursue litigation or as general corporate working capital.

Implications for Business Competition

Efforts to regulate or deregulate litigation finance must be viewed as a battle for an edge not just in the courthouse but also in the marketplace. When companies lobby for regulations of litigation funding, they are pursuing transformative nonmarket strategies to give themselves a market edge by discouraging litigation funding. And when the funding industry forms its own lobbying and standard-setting body, it is pursuing transformative and additive nonmarket strategies to combat the anti-funding transformative strategy.

This Article has also shown that companies use litigation finance to pursue nonmarket strategies in both adaptive and transformative ways. Regulations that promote or discourage litigation finance will impact firms’ ability to avail themselves of these nonmarket strategies. This insight raises important but overlooked welfare concerns that scholars and policymakers must consider when evaluating litigation finance.

First, consider the use of litigation finance to pursue litigation as an adaptive strategy (e.g., to pursue an antitrust suit against a competitor) or as a transformative strategy (e.g., to challenge a regulation that targets the company’s business model). If policymakers curtail access to funding, then companies that rely on litigation funding to pursue litigations with adaptive or transformative purposes will be less likely to pursue those litigations, or they will have fewer resources to effectively prosecute those litigations.²⁴⁴

In the first instance, the normative impact of litigation finance regulations will likely depend on whether one views the pursuit of these nonmarket strategies as a good or bad thing. For example, if one thinks the patent laws are under-enforced and the antitrust laws promote a healthier market, then diminished access to litigation finance may be a bad thing because it means fewer firms will be able to pursue patent and antitrust suits as an adaptive nonmarket strategy. If one takes a different view—that litigation involving the existing patent and antitrust laws diminishes welfare—then one might view the regulation of litigation finance as a good thing.

But the analysis is more complicated than this. Many companies do not need modern litigation finance to pursue litigation as an adaptive or transformative nonmarket strategy. Ban litigation funding, and they still have access to retained earnings and traditional debt or equity capital to pursue litigation designed to give them an edge in the courthouse. Regulating litigation finance thus only prohibits some players from deploying these nonmarket strategies. Put differently, if one prohibits some (mostly smaller) firms from accessing litigation finance, other (mostly larger) firms that do not need litigation finance can still pursue litigation for adaptive and transformative purposes, putting them at a comparative advantage in the marketplace. Policymakers must consider the welfare implications that flow from firms’ unequal ability to pursue litigation as a nonmarket strategy.²⁴⁵

Second, in addition to the use of litigation for adaptive and transformative purposes, this Article also demonstrated that companies can use litigation finance as an adaptive strategy by leveraging their legal claims to raise capital. Many companies use third-party financing writ large not simply to pay their lawyers on legal cases, but also to raise general working capital to fund their business activities.²⁴⁶ Larger companies often structure these transactions as third-party equity investments, or third-party debt investments that are either unsecured or secured by assets other than litigation claims. Smaller companies have more difficulty accessing these traditional markets, so they often turn to litigation finance instead.²⁴⁷

Put differently, large companies are more likely to finance their litigation and other business activities through third-party capital that falls within the safe harbors provided by the nascent regulations of litigation funding such as the New Jersey disclosure rule and Louisiana statute discussed above. They are more likely to raise general recourse debt or equity capital, and they are more likely to have the financial wherewithal to finance transformative litigation through a third party like the Chamber of Commerce.

To see the patchwork results, recall the weather balloon company that needs $15 million to finance litigation and develop new products. If the company has retained earnings or is able to raise traditional third-party debt or equity financing, it need not disclose its financing in litigation. Yet if the most efficient fundraise for the company is a commercial litigation finance fundraise, then the litigation finance regulatory structure kicks in. Meanwhile, if the company’s interests lie not in enforcing a claim against a competitor for money damages, but rather in invalidating a government regulation via declaratory and injunctive relief, then the company is not subject to the litigation finance disclosure regime either. This is so regardless of whether the company sues in its own name or if it finances a third party like the Chamber of Commerce to pursue the litigation.

One’s perspective on these insights may depend on the normative lens applied. As an example, consider the impact of limiting companies’ ability to raise capital via litigation funding. Assuming one values marketplace efficiency, current calls for regulation of litigation finance likely move the marketplace away from efficiency.²⁴⁸ This is because current litigation finance regulations hamper small businesses’ ability to access the litigation finance capital markets to fund various strategic business endeavors. These regimes thus favor larger companies, who have ample access to other capital markets and have less need for litigation funding.

And assuming one believes that it is better when most industries have many firms competing against each other, then the use of litigation finance as an adaptive strategy to raise capital likely improves societal outcomes. Litigation finance allows more companies to raise capital to produce, market, and sell their goods. Increased competition usually reduces prices for consumers and moves the market towards a more competitive equilibrium.²⁴⁹

B. Implications for the Civil Justice System

In addition to identifying a new dimension in the debate about litigation funding—how funding affects parties’ ability to compete in the marketplace—our study also brings a fresh perspective to the existing debate about how funding affects the civil justice system.

First, one significant question in the existing policy debate is whether litigation funders spur frivolous litigation. Opponents of litigation funding argue that funders will seek high-value claims even if they are frivolous, with the hopes of forcing settlements. Proponents of funding respond that financiers who invest in bad cases will soon be out of business.²⁵⁰

Our analysis sheds new light on that question by inviting a comparison of the scrutiny applied to cases that are funded via third-party litigation finance, as compared to funding via retained earnings or traditional third-party debt and equity financing. Before commercial litigation finance companies invest in cases, they apply extensive, months-long due diligence that is characteristic of asset-based lenders in general.²⁵¹ By contrast, funding litigation with retained earnings does not result in rigorous third-party scrutiny of the value of the litigation. Indeed, corporate finance scholarship has identified the agency problem inherent when managers use retained earnings to pursue new investments. Retained earnings avoid investor accountability because, by not raising external funds, “managers avoid a capital markets inspection of their past performance and the need to persuade the capital markets of the soundness of their proposed projects.”²⁵² By contrast, the use of project finance—and litigation finance is project finance for law—can “discipline management” because it “allows the investors, not the managers, to decide where the free cash flow will be invested. If the managers want to make new investments, they must raise the capital from outside investor.”²⁵³ Meanwhile, while raising more traditional equity or debt capital does invite investor scrutiny, it is not usually scrutiny specifically focused on the value of the legal claim. It follows that if companies want to pursue frivolous litigation, third-party litigation funding is probably least likely to result in approval to pursue the case.

Second, another important question in the existing debate about funding is whether third-party funders should be able to control litigation strategy and settlement decisions. Third-party funders state that they generally do not exercise control rights over litigation decisions, and many publicly-disclosed financing agreements bear this out, but there is one notable exception: after Burford Capital provided $140 million in working capital to Sysco, secured against several antitrust suits the food company had brought against suppliers, Burford attempted to veto Sysco’s decision to settle those cases for an amount below Burford’s liking.²⁵⁴ Meanwhile, litigation finance regulations have targeted control, with recent regulatory efforts trying to prohibit funders from controlling litigation, and court rules promulgated by the District of New Jersey and the Chief Judge of the District of Delaware requiring parties to disclose if they have provided a third-party funder with litigation control rights.²⁵⁵

If policymakers are concerned about control, there are many ways that financiers can accomplish control, and indeed standing as a third-party funder may be a uniquely inferior way to obtain control. For example, a third-party financier could become a controlling equity investor in the company and thus take over control of all the company’s operations, including the litigation.²⁵⁶ This approach might be particularly feasible for smaller claimholders in financial distress whose value is tied primarily or entirely to the value of litigation. Similarly, traditional creditors usually have powerful levers of control, including the power to force the company into bankruptcy or sue for payment on a loan.²⁵⁷ Creditors may use these rights to influence litigation. Yet the proposed regulations of litigation funding capture none of these instances of control via equity or traditional debt investment.

Third, a more recent issue in the litigation finance debate is whether litigation finance might present a national security risk. Opponents of litigation finance argue that funding can provide a conduit for foreign adversaries like China and Russia to impair the competitiveness of American companies by forcing them to defend against costly litigation and by gaining access to sensitive trade secrets during discovery.²⁵⁸ Supporters of litigation finance argue that there is little evidence of such foreign interference, and that China and Russia have much more effective ways of hurting America than corrupting the judicial system from the position of a third-party funder.²⁵⁹

Our analysis offers a different perspective. If foreign adversaries want to gain a competitive edge by accessing secrets through litigation, they can do so much more effectively by simply taking control of the plaintiff company, or by pursuing any of the other third-party financial methods that are not captured by the proposed regulations. In those circumstances, none of the onerous proposed regulations of litigation finance would capture their participation. The enacted and proposed regulations are highly underinclusive relative to the stated goal of ferreting out foreign influence.

Fourth, the disclosure of litigation finance agreements has emerged as a leading regulatory proposal in the existing debate. Proposed regulations of funding almost universally include a requirement that plaintiffs disclose the presence of litigation funding to the court and defendants.²⁶⁰ Proponents of disclosure argue that it is necessary to unearth whether the funder is violating any applicable ethical or legal rules, and to avoid judicial conflicts of interest.²⁶¹ Opponents of disclosure argue that it invites discovery side-shows and gives defendants a strategic advantage by disclosing whether the plaintiff has funding (and potentially disclosing much more, too).²⁶²

But again, there are myriad ways in which third parties finance another company’s litigation, and these financing methods are not commonly disclosed to courts or litigation opponents. Indeed, the federal rules provide very thin corporate disclosure, mandating that private companies need only disclose the identity of a parent corporation and of any publicly held corporation that owns ten percent or more of its stock.²⁶³ These limited disclosures were no mere oversight but a deliberate choice. The Rules Committee acknowledged that “[f]raming a rule that calls for more detailed disclosure will be difficult” and could create “[u]nnecessary disclosure requirements” that “place a burden on the parties and on courts.”²⁶⁴ The new regulations of litigation finance thus impose burdensome disclosure requirements on only one form of corporate finance, with the inquiry turning not on the type of litigation or the intent of the financier, but rather simply on the type of corporate form that makes most sense for the regulated party.²⁶⁵

In sum, almost all companies raise third-party capital to finance litigation and other business pursuits. Sometimes they raise equity from third-party investors. Sometimes they raise traditional third-party debt on a secured or unsecured basis. And sometimes—if it makes sense for the company given its size, strength, and regulatory environment, among other factors—they raise modern “litigation finance.” Efforts to regulate only a subset of the many ways claimholders raise third-party capital to finance litigation suggest that many proposed regulations of funding are underinclusive relative to their stated goal. Our nonmarket strategy framework suggests strategic business motivations for these proposed regulations.

V. Scholarly Benefits of the Nonmarket Strategy Framework

In addition to reframing how scholars and policymakers should approach litigation finance, our framework also holds value for both the law and business academies. First, our analysis answers recent calls by legal scholars for work that combines the scholarly disciplines of law and strategy. Second, our framework creates new insights for business scholars, especially concerning the types of strategic endeavors that firms engage in.

A. Legal Scholars

Legal scholarship does not usually focus on strategic business decision-making.²⁶⁶ “The notion that law may be a source of competitive advantage remains largely unexplored.”²⁶⁷ This is so even though law has a tremendous impact on business strategy, and even though many of the most contentious contemporary legal questions have high stakes for business interests.²⁶⁸

Scholars have recently called for a change. “If scholars can better understand the characteristics of firms and the attitudes of managers that promote legal strategy,” Robert Bird has argued, “both scholars and managers can devise ways to capture value from the legal environment that have never been previously considered.”²⁶⁹ He concludes that “law and strategy research can contribute much to both disciplines and can produce beneficial insights for scholars, practitioners, and managers alike.”²⁷⁰ For example, a full picture of the interaction between corporate counsel and regulators must account for business strategy decisions.²⁷¹ Fortunately, a law-and-strategy line of legal scholarship is emerging.²⁷² Other scholars (including one of us) similarly contend that laws and legal principles are important for marketing and product developers to understand so that they may better drive consumer demand to their products.²⁷³ Still others have argued that litigation can be a type of bullying to capture market power.²⁷⁴

This Article responds to the call of various legal scholars to engage with strategic decision-making in addition to legal decision-making.²⁷⁵ We provide a new lens for legal scholars to study how laws impact business strategy. This framework can help scholars address business litigation writ large, including private law disputes (such as the antitrust, patent, and Lanham Act disputes we have discussed) as well as high-profile public law disputes that grab headlines at the Supreme Court.²⁷⁶

B. Business Scholars and Businesses

Just as legal scholars have mostly ignored business scholars’ insights about law and strategy, the business and finance academy has mostly overlooked litigation finance.²⁷⁷ This Article contends that litigation finance is ripe for business scholarship, too.

A few avenues of research are likely to be fruitful. First, litigation finance is relatively unique in the nonmarket strategy context as it implicates adaptive, transformative, and additive strategies. Most business scholarship focuses on corporate strategies that are one-dimensional. Litigation finance is also unique because it is the subject of a push-and-pull of nonmarket strategies: some companies are using litigation finance as a nonmarket strategy to improve their market position, while others are pushing back against funding to preserve their own position.

Second, there is a dearth of empirical scholarship on litigation finance.²⁷⁸ The literature that has explored the instrument empirically has, unsurprisingly, focused on dependent variables relevant to the legal system, including the number, type, and outcome of funded cases.²⁷⁹ The framework presented in this Article suggests business scholars should also explore various business-focused dependent variables, including investment returns, weighted cost of capital, market power, and so on. Our framework can be a foundation on which scholars can evaluate the efficacy of these nonmarket strategies.

In addition to business scholarship, our framework here should provide businesses themselves with new strategies to create economic value. We have identified for firms the types of nonmarket strategies they can leverage. While we have identified several ways companies leverage litigation finance to drive economic value, we suspect that there are many unexplored strategies. By retooling litigation finance as a strategic endeavor and not just a legal one, companies may improve their ability to compete not only in the courtroom but in the market too.

Conclusion

This Article shifts the vantage point for analyzing litigation finance from the courthouse to the market square. The extensive scholarship on litigation finance has focused only on funding’s impact on the civil justice system. We argue that scholars and policymakers must also grapple with funding’s impact on capital markets and the business marketplace. To make this point, we use an interdisciplinary approach, drawing on business strategy literature about nonmarket strategies that has been largely ignored by legal scholars. Our framework identifies an entire set of funding’s policy implications in the market. It also offers new insights for the existing debate about how litigation finance affects the civil justice system. This approach provides a new lens for scholars and regulators struggling with how to study and regulate funding.

98 S. Cal. L. Rev. 1379

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Suneal Bedi* & William C. Marra†

*Associate Professor of Business Law & Ethics, Jerome Bess Faculty Fellow, Indiana University Kelley School of Business.

†Lecturer in Law, University of Pennsylvania Carey Law School. For helpful comments, we are grateful to Tom Baker, Mathew Caulfield, Brian Fitzpatrick, Todd Haugh, Donald Kochan, Samir Parikh, Tony Sebok, Maya Steinitz, and Maria Glover. The authors would also like to thank the law review editors for their helpful edits and comments.

A New Look at Old Money

October 2025October 2025Miranda Perry Fleischer*

Taxing wealth—including inherited wealth—is a hot topic, making headlines and generating heated debate. Should millionaires and billionaires face an annual wealth tax, as championed by Senators and former presidential candidates Elizabeth Warren and Bernie Sanders? Should we strengthen the existing estate tax, as former presidential candidate Kamala Harris urged? Or, as opponents argue, are both annual wealth and once-a-generation wealth transfer taxes unfair and impractical? What makes this debate so intractable is not only that the public as a whole is divided on these issues, but that also many individual Americans hold simultaneous beliefs about wealth, opportunity, fairness, desert, and family that seemingly contradict each other. This Article cuts through that debate by proposing a novel solution for inheritance taxation that reconciles these deeply held beliefs with the benefits of wealth transfer taxation.

Our current estate tax treats the self-made millionaire the same as an heiress who has not earned a cent when they pass their fortunes on to their heirs. But this is misguided. Drawing on recent work on the psychology of taxation, this Article makes the case for an innovative inheritance tax system that taxes old money more heavily than new. This approach would allow individuals to bequeath wealth that they have earned—but not wealth that they have inherited—free of tax. Known as a Rignano tax, this proposal harnesses the finding that many Americans “silo” beliefs about wealth, holding seemingly contradictory beliefs that differ in part based on whether wealth is earned or inherited. By leveraging these findings and building on experience with the existing transfer tax system, this Article elaborates and advances a set of specific and concrete design recommendations for a Rignano tax.

This comprehensive analysis of a Rignano tax—the first in the law review literature—complements philosophical work that advocates for such a tax but does not address key design and policy questions. Further, it contributes to tax scholarship by advancing our understanding of the relationship between a tax’s normative goals and structural design choices. And for both advocates and opponents of the estate tax, it offers a nuanced and fair exploration of the debate surrounding inheritance taxation as well as a potential resolution of the enduring stalemate over taxing wealth.

Her voice is full of money.

—F. Scott Fitzgerald, The Great Gatsby¹

They were new money, without a doubt: so new it shrieked. Their clothes looked as if they’d covered themselves in glue, then rolled around in hundred-dollar bills.

—Margaret Atwood, The Blind Assassin²

Introduction

Compare Tom, who builds a multi-million-dollar business from the ground up, with Mary, an heiress who inherits millions and never earns a cent. Both want to leave their fortunes to their children. Although our current estate tax treats Tom and Mary the same, this approach is misguided. It ignores that not only is the public as a whole divided on the issue of taxing wealth transfers,³ but many individual Americans hold simultaneous beliefs about wealth, opportunity, desert, fairness, and family that seemingly contradict each other. Many believe, for example, both that working hard and saving in order to help one’s children is as American as apple pie and that it is unfair for some children to begin life with a substantial head start.⁴

As a result, the debate over taxing wealth—including inherited wealth—is at a longstanding impasse.⁵ Influential legislators including Senators and former presidential candidates Elizabeth Warren and Bernie Sanders champion annual wealth taxes on ultra-millionaires, while opponents passionately contend that even once-a-generation taxes on wealth transfers are unfair and impractical, calling them “expropriation” and “an especially cruel injury.”⁶ This Article cuts through that debate and reconciles those competing beliefs by proposing a novel inheritance tax system that taxes old money more heavily than new. This innovative approach—known as a Rignano tax⁷—would allow Tom to bequeath wealth that he has created free of tax, while taxing Mary, who simply inherited her wealth.

Drawing on recent work on the psychology of taxation, this innovation harnesses the finding that many Americans “silo” beliefs about wealth, holding seemingly contradictory beliefs that differ in part based on whether wealth is earned or inherited. A Rignano tax thus reconciles the benefits of wealth transfer taxation with deeply held beliefs about fairness, desert, private property, and family. Because these beliefs—which legal philosophers Liam Murphy and Thomas Nagel call “everyday libertarianism”⁸ and which economist Steven Sheffrin terms “folk justice”⁹—generally differ from those of policymakers and academics, they are often ignored. Recent work on the psychology of taxation suggests that this is a mistake.¹⁰ Policymakers who ignore these beliefs do so at their own peril, often undermining their own normative aims.

But taking these beliefs into account does not mean abandoning wealth transfer taxation altogether. People frequently hold views about fairness and morality in different domains that appear to contradict each other, a concept that Zachary Liscow terms “policy silos.”¹¹ A pro-life advocate, for example, may also support the death penalty; someone who opposes redistributive taxation may favor transportation policy that helps the poor. Crucially, evidence indicates that many Americans “silo” beliefs about wealth, holding seemingly contradictory beliefs that depend in part on whether wealth is earned or inherited.

These insights suggest a way out of the morass bogging down the debate over inherited wealth. Supporters of inheritance taxes should not dismiss out-of-hand public attitudes about hard work, thrift, and family, but instead harness the concept of policy silos. By allowing individuals to make tax-free transfers of wealth that they themselves have earned—but not wealth that they have merely inherited—a Rignano tax acknowledges the very real, deeply held value that the public places on hard work, entrepreneurship, and notions of desert while also addressing concerns about inherited wealth.¹²

Although the idea of taxing old money more heavily than new has long fascinated philosophers of all stripes,¹³ philosophical literature leaves key design and policy questions unanswered. This Article answers those questions, offering the only comprehensive analysis in the law review literature of a Rignao tax. It first justifies a Rignano tax as a normative matter, delving more deeply into both expert and lay arguments for and against taxing wealth and recent work on the psychology of taxation. Its key normative insight is that a Rignano tax balances the goals of wealth transfer advocates (such as enhancing equality of opportunity and minimizing dynastic transfers of unearned power) with those of opponents of such taxes (such as rewarding desert, hard work, and family). By acknowledging both the pros and cons of taxing wealth transfers, a Rignano tax can succeed politically where other proposals fail.

What remains to be resolved are important questions of design and administration. Charting new ground in the literature on Rignano taxes, this Article builds on experience with the existing transfer tax system to elaborate and advance a set of specific and concrete design recommendations for a Rignano tax. These are:

Base: Imposing a tax on gifts and bequests received by an individual when that wealth is the subject of a second transfer;

Rate: Levying a rate of 0% on first-generation transfers and 40% on other transfers;

Valuation: Using the risk-free rate of return to determine what portion of a gift or bequest is second-generation wealth;

Frequency: Taxing generation-skipping transfers;

Tracing: Using a first-in-time approach to allocate second-generation wealth;

Trusts: Treating distribution as the relevant date for both imposing the tax and “starting the clock” for determining future growth; and

Transition Rules: Treating one-sixth to one-third of existing wealth as inherited.

Together, these recommendations build upon the insights of the psychology literature to craft an inheritance tax system that balances how the public actually thinks about taxation with the goals of inheritance tax supporters. Taxing heirs instead of transferors harnesses the insight that people silo beliefs about wealth, distinguishing between inherited and earned wealth. It also lessens the pull of moral mandates about double taxation and hard work. At the same time, it reflects the moral intuitions shared by most supporters of inheritance taxation. For example, many of the concerns raised by inherited wealth—such as equality of opportunity—are best measured by how much wealth a given person inherits, not how much total wealth an individual bequeaths without regard to how that wealth is divided among beneficiaries.

Imposing a zero rate on initial transfers of earned wealth likewise diminishes the attraction of the double taxation and hard work arguments. It also minimizes the threat that people often feel when systems of which they are a part—such as the family or an economy that rewards hard work and entrepreneurship—are undermined. By suggesting a rate of forty percent for later transfers, it acknowledges that repeated wealth transfers raise normative

concerns without breaching the fifty percent threshold that is especially salient in tax debates.

Other recommendations address valuation and liquidity concerns to increase administrability and decrease opposition triggered by those difficulties. For example, even though most normative considerations suggest taxing trust beneficiaries when their interests vest, this Article proposes taxing them at distribution. At that point, accurate valuations—and not just estimates—can be made, and liquidity concerns disappear. This acknowledges the instinct many people have that taxing “paper gains” is unfair. And using the risk-free rate of return to determine what portion of an inheritance’s growth is earned versus unearned provides a simple, easy to administer method for distinguishing what portion of a second transfer is old money versus new.

A Rignano tax thus charts a course through the competing beliefs held by both supporters and opponents of inheritance taxation. Although implementing one will require some additional complexity and recordkeeping, these burdens are not insurmountable. Several European countries tax some bequests more heavily than others depending on the relationship between the transferor and transferee.¹⁴ And for the last decade or so, our current system has successfully allowed one spouse’s estate tax consequences to turn on the value of the other spouse’s property as well as actions taken by the predeceased spouse’s executor at his or her prior death. This suggests that tying a recipient’s tax burden to the actions of the transferor is feasible. Administrative concerns therefore do not derail a Rignano tax’s carefully charted course. What remains is a workable inheritance tax system that can gain traction with the public where other proposals fail.

This Article proceeds as follows. Section I offers an overview of the current estate and gift tax system and common alternatives. Section II explores the arguments for and against taxing wealth transfers. Section III describes the justifications for a Rignano tax, and Section IV details what implementing a Rignano tax would entail. Section V concludes by assessing how well a Rignano tax balances competing intuitions concerning inherited wealth and concludes that the Rignano tax is worth pursuing notwithstanding the potential complexities that attach to its design and implementation.

I. An Overview of Wealth Transfer Taxation

Taxing wealth transfers is a longstanding feature of our federal tax system. Our current estate tax dates from 1916, when Congress imposed a tax ranging from one percent on estates over $50,000 to ten percent on estates over $5,000,000.¹⁵ To prevent individuals from avoiding the tax by making lifetime gifts instead of bequests, Congress permanently added a gift tax a few years later.¹⁶ This system is “unified,” meaning that it taxes an individual’s gratuitous transfers once they cumulatively exceed a per-transferor exemption amount, whether those transfers are gifts or bequests.¹⁷ For simplicity, this Article refers to this unified structure as the “estate tax.”

Due to changes in the exemption and rates, the tax’s bite has fluctuated dramatically over the past two decades.¹⁸ As recently as the year 2000, the top rate was 55 percent; by 2013, it had dropped to 40 percent, where it remains.¹⁹ As rates were dropping, the exemption was increasing. Between 2000 and 2017, it grew from a comparatively small $675,000 to over $5,000,000,²⁰ and in 2017, the Tax Cuts and Jobs Act temporarily doubled the exemption to $10,000,000²¹ (adjusted for inflation to $13,990,000 in 2025²²). Although the exemption was scheduled to return to a benchmark of $5,000,000 in 2026, legislation in the summer of 2025 permanently increased it to $15,000,000, adjusted for inflation, starting in 2026.²³ Given the exemption’s size, the estate tax affects only a tiny sliver of the population. In 2020, roughly 4,100 estates were required to file an estate tax return,²⁴ and of those, only about 1,900 actually owed any estate tax—less than 0.1 percent of the estimated 2,800,000 decedents that year.²⁵ Despite the small number of taxable returns, the tax raises a non-trivial amount of revenue—roughly $16 billion in 2020.²⁶ Interestingly, the amount of revenue has not decreased as fast as the number of taxable estates has decreased, which suggests that exempting additional transfers from tax (as a Rignano tax would) would not necessarily eviscerate the tax’s revenue-raising capacity.²⁷

A few features of the estate tax merit mention. First, it focuses on the transferor. This contrasts with recipient-focused taxes, such as the inheritance or accessions tax schemes that are more common abroad.²⁸ Other than the marital and charitable deductions, the estate tax does not distinguish among recipients. Consider Anna, whose wealth totals $15,000,000. She is taxed the same whether she transfers her fortune to one child or splits it among ten cousins.

Second, individuals may make a number of tax-free transfers. Most importantly, each individual has a single lifetime exemption amount—currently $13.99 million—which applies to her cumulative wealth transfers.²⁹ Assume that Anna gifts her daughter $10 million during life and later dies with an estate of $5 million. The lifetime gift uses up most of her exemption amount, leaving only $3.99 million of it left for later transfers. At her death, $3.99 million of her estate will be shielded from tax by the rest of her exemption amount, and the remaining $1.1 million of her estate will be taxed. She does not get a new exemption for her bequests. In addition, the annual exclusion allows each individual to exclude the first $19,000 transferred to each recipient each year from the above calculations.³⁰ Anna can give as many people as she likes—her whole Tax I class, perhaps—$19,000, and the gifts are simply ignored. Anna can do this year after year, and the gifts do not use up any of her exemption amount. Further, there are unlimited deductions for marital³¹ and charitable transfers.³² If Anna bequeaths her entire estate to her spouse, her taxable estate is zero. She does not need to use her exemption amount, and it rolls over to her spouse for later use. Likewise, if Anna bequeaths her $15,000,000 to charity, her taxable estate is zero. In this case, however, her unused exemption simply disappears.

Third, the generation-skipping transfer tax precludes families from minimizing their total tax burden by “skipping” generations. If Anna bequeaths her estate to her daughter Bonnie, who in turn bequeaths the wealth to Anna’s granddaughter Chloe, the estate tax is imposed twice. But if Anna skips Bonnie and bequeaths her wealth directly to Chloe, the estate tax is imposed only once. To equalize the tax burden in these situations, the generation-skipping tax imposes a tax on transfers that “skip” generations.

Finally, this system is separate from the income tax. Gifts and bequests received are not included in a recipient’s income, regardless of size.³³ Later income tax consequences to the transferee depend on whether the transfer is a gift or bequest.³⁴ Assume that Anna buys stock for $100 and transfers it to Bonnie when it is worth $1,000. If the transfer is a gift, Bonnie takes Anna’s basis for income tax purposes and will pay tax on the $900 unrealized gain upon disposition.³⁵ If Anna bequeaths the stock to Bonnie, Bonnie takes a fair market value basis of $1,000.³⁶ The $900 gain that accrued in Anna’s hands disappears.

A transferor-focused estate tax is just one possible way of taxing wealth transfers. Numerous OECD countries, including Belgium, France, Germany, Japan, Spain, and Switzerland, impose either accessions or inheritance taxes that focus on beneficiaries.³⁷ Although the two terms are often used interchangeably, they are technically distinct.³⁸ The former taxes the recipient based on the total amount of gifts and bequests received during her lifetime, while the latter taxes the beneficiary on such receipts annually.³⁹ Inheritance tax rates often vary based on the relationship between the donor and beneficiary, with transfers between close relatives taxed more lightly than transfers between more distant relatives and unrelated individuals. Finally, both accessions and inheritance tax systems generally exempt transfers between spouses.

An alternative to taxing gifts and bequests through a separate estate, inheritance, or accessions tax system is to change their income tax treatment. Most obviously, gifts and bequests could be included in income, just like salary or lottery winnings.⁴⁰Although this is fairly rare, Latvia and Lithuania do this, and Lily Batchelder’s “comprehensive inheritance tax” is essentially an income inclusion scheme.⁴¹

Another option is to use carry-over basis for bequests as well as gifts so that when transferees sell, they will pay tax on any gain that accrued to the donor regardless of whether the transfer is a gift or bequest (returning to Anna and Bonnie, Bonnie would pay tax on the $900 gain that accrued in Anna’s hands in both circumstances). The U.S. has briefly experimented with carry-over basis twice before—once in 1976 (although it was repealed before going into effect) and again in 2010 (that year, estates could choose between the regular estate tax or a system without an estate tax but with carry-over basis).⁴²And finally, gifts and bequests could be treated as realization events to the donor that trigger tax on unrealized appreciation at the time of transfer.⁴³ The United Kingdom⁴⁴ and Australia⁴⁵ treat gifts as realization events. Canada takes this approach at death, and former President Biden and numerous Senators have proposed that the U.S. follow suit.⁴⁶ In theory, one could both change the income tax treatment of gifts and bequests and impose a separate wealth transfer tax, but in the real world, they tend to be treated as either/or propositions due to political concerns.

II. The State of The Debate over Estate Taxes

Taxing wealth transfers is extremely controversial. As the foregoing history demonstrates, opponents have successfully pursued legislation that has drastically weakened the estate tax over the past two decades. In spite (or perhaps because) of this political history, taxing wealth transfers (as well as wealth itself) remains popular with a substantial portion of the public.⁴⁷ Supporters of wealth transfer taxation focus on egalitarian and welfarist justifications, while opponents generally rely on libertarian arguments. This Article’s goal is not to evaluate the strengths and weaknesses of those arguments in depth, which an extensive body of work does elsewhere. Instead, it is to provide an overview of this debate so that readers can better understand how people think about the estate tax so that they can evaluate the attractions of a Rignano tax.

A. Arguments in Favor of Wealth Transfer Taxation

Equality of Opportunity

Perhaps the most popular argument for taxing wealth transfers stems from the principle of equality of opportunity.⁴⁸ This ideal holds that each individual—regardless of arbitrary characteristics such as race or gender—should have an equal shot at pursuing her vision of the good life, while still bearing responsibility for her decisions.⁴⁹ In tax and legal scholarship, the most common instantiations require “redistribution from those with greater means and opportunities to those with less.”⁵⁰

These “liberal egalitarian” theories⁵¹ rest on two arguments. First, the financial circumstances of birth impact one’s ability to develop one’s talents. An intelligent child born to poor parents generally does not have the same educational opportunities as one born to wealthy parents.⁵² Well-off parents can afford private school tuition or a house in a high-quality school district,⁵³ tutors, and challenging after-school programs. Parents of athletes pay for private coaches, travel teams, and expensive summer camps. Well-off children do not have to work to help pay the rent but can instead spend time on their studies and resume-building activities like internships. And once a child is grown, wealthy parents can provide seed money for a business, pay for graduate school, or cover the down payment on a house. Second, these circumstances are arbitrary. A child does not choose to be born into a rich or poor family, just as she does not choose her race.

Equal opportunity therefore requires some ex ante equalization of resources so that a poor child with an IQ of 150, Mozart’s musical genius, or a keen business sense has the same shot at success as a richer child. In theory, taxing wealth transfers both reduces their size (in turn diminishing the advantages of being born into a rich family) and creates revenue to fund redistribution to those with fewer opportunities.⁵⁴

Dynastic Power

A related justification is to minimize the intergenerational transmission of power.⁵⁵ As our founders recognized, rejecting hereditable power is one of our fundamental values.⁵⁶ Yet great wealth often brings economic and political power over others.⁵⁷ Those favoring wealth transfer taxes on these grounds point to the following.

First, money enables one to make substantial political donations. Donors become de facto gatekeepers and agenda setters, influencing who more easily stays in the race and which issues gain prominence.⁵⁸ Substantial contributions plausibly increase access to elected officials⁵⁹ as well as influencing legislative behavior.⁶⁰ Large contributors often obtain influential positions such as ambassadorships or bureaucratic posts.⁶¹ Having a lot of money also makes it easier to run for office. Consider recent presidential candidates Tom Steyer⁶² and Michael Bloomberg⁶³ as well as President Donald Trump.⁶⁴ Closer to home, numerous candidates in U.S. Senate and House races⁶⁵ and state and local elections⁶⁶ have also spent plentiful sums of their own.

Money also allows one to influence public opinion,⁶⁷ most directly through unlimited, anonymous contributions to Section 501(c)(4) social welfare organizations that can advocate for and against candidates, lobby, and conduct issue advocacy. The wealthy can shape the media’s news and editorial coverage through advertising purchases⁶⁸ or from owning media companies directly.⁶⁹ And finally, the ability to influence policy (both directly and indirectly) also accompanies wealth.⁷⁰ Threats to relocate businesses, cancel events, or abandon planned openings or expansions can influence elected officials eager to protect local economies, even when the policies in question are not directly business-related.⁷¹ Business leaders are often consulted for advice by policymakers,⁷² be it through informal conversations or official advisory councils.⁷³ And more directly, such leaders are often named to policy-making positions that require special knowledge precisely because of the skills and expertise that made them successful. Lastly, the traits that bring business success often enable business leaders to naturally become civic leaders.⁷⁴

Wealth can also mean having economic power over others, especially in areas where a few families dominate economic life. Although the days of official company towns are long-gone, some influential families still control much of the employment opportunities in certain communities—for example, the Kohler family in Wisconsin.⁷⁵Elsewhere, residents might depend on a small set of firms for groceries, housing or other needs, such as cars. Decisions about what food to stock and at what prices, whether to raise rents or wages, expand or close a firm, and the like directly impact residents’ lives.⁷⁶ Handing the family business (or controlling chunks of publicly traded companies) down to one’s heirs is therefore tantamount to handing them economic power over others.

Inheritances and Ability to Pay

A third justification for taxing wealth transfers proceeds from the principle that political institutions should maximize welfare.⁷⁷ This argument equates welfare with utility and assumes that individuals have identical utility functions that decline as wealth and income increase.⁷⁸ Redistribution from an individual with more income or wealth to an individual with less thus increases overall utility. The catch is that taxing higher-income (or higher-wealth) individuals may lead to reduced labor and investment, decreasing overall welfare. The optimal tax literature thus argues that the ideal solution would be to tax ability, which cannot be minimized the way one can choose to work less.⁷⁹ But since ability cannot be directly observed, the next best is to tax income as a proxy.⁸⁰

Starting from this premise, some theorists argue that gifts and bequests received also reflect well-being and ability and should be taxed as proxies therefore.⁸¹ The reasoning is two-fold. If you are comparing two individuals with identical labor income, ignoring the fact that one receives a large inheritance is nonsensical—just as ignoring any other inflow, such as winning the lottery, would be. Second, the receipt of gifts and bequests is linked to a variety of “nonfinancial inherited assets and traits that powerfully affect earning ability.”⁸² These theorists generally reject the standard optimal tax account that taxing capital (which an estate tax does) creates too many economic distortions on three grounds.⁸³ First, they argue that this account overestimates the share of bequests made for reasons that are responsive to tax versus those that are not responsive. For example, someone who is saving to fund a comfortable retirement or for medical and long-term care as they age, and who “accidentally” leaves whatever is left to their heirs, will not really be influenced by taxation. Second, they contend that observed declines in wealth accumulation that correlate to transfer taxes are plausibly attributable to tax avoidance or increased lifetime gifting rather than reduced savings.⁸⁴ Lastly, these theorists note that most studies ignore recipients, who often work less after receiving an inheritance.

A Wealth Transfer Tax as a Periodic Wealth Tax

The foregoing arguments focus on the significance of transferring wealth. In contrast, a second set of justifications focuses on its very existence. But because political and administrative hurdles render taxing wealth itself difficult (if not impossible), taxing wealth transfers is an indirect solution.⁸⁵

Wealth Inequality and Democratic Concerns. A first justification for taxing wealth is to protect our democratic institutions.⁸⁶ There is a strong link between money and political influence, and people have different amounts of money.⁸⁷ As a result, many argue that money muddles the ideal that “the political system should . . . treat[] all citizens as free and equal participants.”⁸⁸ One concern is that the preferences of constituents with money will be prioritized over those without.⁸⁹ A growing body of evidence suggests that policymakers are more responsive to the views of the former;⁹⁰ this phenomenon has been observed at both the state⁹¹ and federal level,⁹² across a range of policies,⁹³ and especially when the two sets of views diverge.⁹⁴ This is both fundamentally at odds with a core tenet of democracy,⁹⁵ and creates a second harm by distorting the deliberative process.⁹⁶ If the system ignores information about the preferences of a large chunk of society, policymakers may lack all the information necessary to make fully-informed decisions. This vacuum also prevents the deliberative system from benefiting from a diversity of viewpoints.⁹⁷ A similar yet distinct harm from overweighting the preferences of the affluent is inefficiency. Here, the concern is that neither the harms to the non-affluent from policies favored by the wealthy nor the benefits from policies favoring the non-affluent will be taken into account. As a result, the true costs of a

variety of policies are obscured, potentially resulting in indirect redistribution to the affluent.⁹⁸

Economic Externalities from Wealth Concentrations. A similar justification for taxing wealth is that large wealth concentrations harm the economy.⁹⁹ Although short-run studies are mixed, several long-run studies suggest that highly unequal concentrations of wealth are negatively correlated with economic growth.¹⁰⁰ Several plausible explanations exist, but two appear most likely.

First, high levels of inequality might lead to underinvestment in education and health. Poorer families often face borrowing constraints that encourage young adults to enter the workforce rather than continue with schooling that increases skills and later income. In turn, fewer resources will be available to pass on to the next generation, compounding the cycle.¹⁰¹ A complex link between wealth, fertility, and education may also exist. Wealthier families tend to have fewer children, leading to greater investment in each one; the opposite is generally true for less-wealthy families.¹⁰² At the societal level, societies with higher levels of inequality may invest less in educational opportunities for the less well-off.¹⁰³

Somewhat similarly, high levels of inequality might decrease societal investment in health care.¹⁰⁴ And on the micro-level, having a relatively low income or social status might negatively impact an individual’s health, which imposes costs in terms of lost human capital and diverted financial resources.¹⁰⁵ Second, unequal concentrations of wealth are linked to social unrest and diminishing social cohesion, both of which can also contribute to slower economic growth in a number of ways.¹⁰⁶ It is plausible that in highly unequal societies, individuals engage in more rent-seeking, which misallocates resources. Inequality also contributes to sociopolitical instability, which both disrupts normal market and economic activities (think

of labor strikes) and creates an environment of political and legal uncertainty.¹⁰⁷

Owning Wealth and Ability to Pay. A final justification for taxing wealth is that simply holding it reflects ability to pay. Consider two people who each have $75,000 of labor income. If one also has several million dollars in the bank, shouldn’t that change our assessment of whether the two have an equal ability to pay tax?¹⁰⁸ After all, the mere existence of wealth enhances one’s financial capacity.¹⁰⁹ It also brings comfort, security, and status, all of which are intrinsically valuable and plausibly make it easier to generate even more wealth.¹¹⁰ Second, recall the welfarist ideal that tax burdens should track ability or endowment, and that income is the best proxy. Due to the realization requirement, our income tax system does not tax all economic income as it accrues. Some therefore propose taxing wealth periodically to capture the same measure more fully.

B. Arguments Against Wealth Transfer Taxation

While advocates of wealth transfer taxes tend to rely on arguments that reflect egalitarian and welfarist ideals, opponents generally ground their criticisms in libertarian and libertarian-adjacent arguments about efficiency, property rights, and the appropriate role of government. These can be a bit hard to categorize because scholarly opposition to wealth transfer taxes is scant in comparison to scholarly support. Most of the arguments made by everyday estate tax supporters are also fleshed out with care by academics. This is less true, however, for many of the opinions held by everyday estate tax opponents. Nonetheless, we can sort these critiques into roughly two groups.¹¹¹ The first set opposes wealth transfer taxes because they have differing normative visions of the role of government, a just distribution of resources, and fairness. The last set focuses on the efficiency of wealth transfer taxes to argue that they are themselves harmful.

Equality of Opportunity Revisited

The argument that equality of opportunity requires redistributing resources from rich to poor is contested.¹¹² Another interpretation of equal opportunity, known as “careers open to talents” or “the merit principle,” instead focuses on open competition.¹¹³ On this view, resources are irrelevant to one’s ability to compete for jobs, school admissions and scholarships, and the like; what counts is whether all individuals have a chance as a formal matter to compete.¹¹⁴ This ensures that positions are awarded based on merit to the most talented, instead of to the less talented due to arbitrary and unrelated characteristics like race or sex. Advocates of the merit principle often point to rags-to-riches stories such as media personality Oprah Winfrey, clothing designer Ralph Lauren, and Starbucks CEO Howard Schultz as proof that formal nondiscrimination sufficiently ensures a level playing field. If one interprets equal opportunity in this manner—as many Americans do—then one would naturally oppose any tax designed to redistribute wealth or income on equality of opportunity grounds, including a wealth transfer tax.

Rejecting Declining Marginal Utility and Progressivity

Many similarly contest the various arguments relating to the declining marginal utility of wealth and income. Some oppose the estate tax because they believe that redistribution to maximize welfare is beyond the proper scope of government, even if they accept the premise of declining marginal utility.¹¹⁵ Others question the assumption itself.¹¹⁶ Richard Epstein emphasizes, for example, that dollars are not ends unto themselves, but rather means. As he writes, “The decline in the marginal utility of an additional steak after you have already eaten one may be very high. But wealth is convertible into any number of different goods, so in each case the decline in utility has to be measured by referring to the utility of the most desired good as yet unpurchased.”¹¹⁷ And there’s some evidence supporting this view,¹¹⁸ including work suggesting that although utility likely declines as income rises in the lower range, it then increases with income in the middle range before declining again, creating an S-shaped curve.¹¹⁹

A related set of critiques reflects the normative dispute over whether the overall tax system should impose progressive or proportionate tax burdens.¹²⁰ Supporters of progressivity favor taxes that target the wealthy—such as estate taxes—as a way to increase the progressivity of the overall tax system.¹²¹ Opponents of progressivity naturally oppose such taxes, favoring proportionate taxes for several reasons.¹²² Some accept the ideal that tax burdens should track one’s ability to pay but reject the assumption that declining marginal utility requires imposing higher tax rates on the wealthy—the “equal sacrifice” argument. If utility does not decline, then taxing everyone at the same rate imposes an equal sacrifice, negating the need for progressive rates.¹²³

Others reject the ability-to-pay principle, instead arguing that taxes should reflect how much one benefits from the societal infrastructure (the “benefit” theory). As Friedrich Hayek explains, “since almost all economic activity benefits from the basic services of government, these services form a more or less constant ingredient of all we consume and enjoy and that, therefore, a person who commands more of the resources of society will also gain proportionately more from what the government has contributed.”¹²⁴ Richard Epstein analogizes the state to a partnership, highlighting that partnerships default to the “pro rata division of gains and losses derived from any common venture,” which ensures that “every individual [is] made better off to the same degree, that is, receive the same rate of return on his proportionate investment in social infrastructure.”¹²⁵

Private Property Rights

A third normative objection is that estate and inheritance taxes unjustly interfere with private property rights.¹²⁶ Supporters of strong private property rights, ranging from John Locke¹²⁷ and John Stuart Mill¹²⁸ to Robert Nozick¹²⁹ and Richard Epstein, overwhelmingly argue that if someone justly acquires property, she has the right to transfer that property however she likes, including by making gifts and bequests.¹³⁰ Because estate and inheritance taxes interfere with this right, they are not simply unjust, but uniquely unjust. As philosopher Loren Lomasky argues, they are “an especially cruel injury because [they] deprive[] the dead of one of their last opportunities for securing the goods that they value.”¹³¹ On this account, choosing to make a gift or bequest expresses the identity of the donor in a way that selling property does not. It is a sign of her affection for the recipient, as well as her values.¹³² Just as other intimate family matters relating to the expression of values—such as which holidays to celebrate and whether to go to church—should be immune from state interference, so too should gratuitous transfers. Moreover, gifts and bequests take place in the private realm of the home and neither avail themselves of the market infrastructure nor represent a voluntary entrance into the public sphere. In contrast, most taxable activity—like selling labor or property—represents a voluntary entry into the public sphere whereby one willingly consents to the burdens of taxation in exchange for using the market infrastructure. Perhaps, then, the intrusive burden of taxing gifts and bequests (e.g., tracking, valuing, and reporting) in the private sphere should be given more weight than the burden from taxing transactions in the public marketplace.

Double Taxation

Many also view the estate tax as double taxation.¹³³ Although this critique is extremely common among members of the public, policymakers and scholars tend to be dismissive of it as betraying a misunderstanding of the broader tax system. They first note that because of the realization requirement,¹³⁴ many wealthy individuals have never paid income tax on the increase in value of their investments.¹³⁵Studies suggest that untaxed appreciation comprises an average of 32% of smaller estates (a few million dollars) to 55% of large estates (those in the $100 million range).¹³⁶ To some extent, then, estate tax supporters are correct that opponents wielding the double taxation argument either misunderstand this point or overstate their case.

But what about wealth that has already been taxed, such as labor income invested in assets such as taxable savings accounts? Estate tax opponents are correct that an estate tax taxes this twice.¹³⁷ And to many, that just seems unfair on a gut level, despite various counterarguments. One counter is that the same income is often taxed multiple times to the same person; think of income, payroll, and sales taxes. Another counter is that recipients of gifts and bequests do not include them in income. Therefore, taxing gifts and bequests simply matches up the number of people that benefit from the property with the number of times it is taxed. If Hannah gives Iris a gift of $1,000, many argue that taxing both of them makes sense since each benefits from the funds. Hannah could have spent that $1,000 on fancy cheese, but instead chose to give the money to Iris, and she enjoys the warm glow that comes with making a gift. And Iris has $1,000 to spend as she sees fit.¹³⁸

But many transfer tax opponents contest that Hannah benefits when she makes a gift to Iris the same way that she benefits when, for example, she pays Iris to paint her house. In their view, Hannah has transferred the ability to benefit from the funds to Iris. Since only one person—Iris—ends up benefitting, only one person should be taxed. Since Hannah was already taxed via the income tax, it makes no sense either to impose a separate transfer tax or require Iris to include the transfer in income.¹³⁹ Setting aside the issue of appreciated property, we can see that the double taxation argument comes down to a normative view about the definition of income. If Hannah benefits from making a gift just as she benefits from having her house painted, there is no double taxation. But if one believes that Hannah gives up her ability to benefit and passes it to Iris, then taxing gifts and bequests is double taxation. As with arguments about equality of opportunity and progressivity, this simply comes down to reasonable disagreements about normative priors.

Efficiency and Administrative Concerns

A final set of arguments highlight efficiency and administrative concerns. For some, these concerns alone are sufficient to oppose the estate tax, even if they otherwise sympathize with its goals; for others, these concerns buttress normative critiques.

Economic Incentives. At heart, transfer taxes are taxes on savings by donors.¹⁴⁰ As such, opponents contend that they punish savers and reward spenders by raising the price of saving relative to spending.¹⁴¹ This reaction seems intuitive to many laypeople, and is arguably backed up by two recent economic analyses finding a correlation between higher estate taxes and lower wealth accumulations at death—a reduction in wealth at death of roughly 10% for the very wealthiest taxpayers.¹⁴² Some theorists–such as economists who deploy optimal tax analysis—thus argue that transfer taxes decrease overall welfare by shrinking the size of the pie available for redistribution.¹⁴³ Professor Ed McCaffery offers a twist on this argument, arguing that the estate tax exacerbates inequalities of opportunity by encouraging lifetime consumption and early spending.¹⁴⁴ And many everyday people simply recoil at the idea of a tax that seems to single out behavior (working hard, saving, and frugality) that our society deems virtuous.

Harm to Small Businesses and Family Farms. A related critique—one that strongly resonates with the public—is that the estate tax harms small businesses and family farms. To that end, estate tax opponents frequently recount stories of families who allegedly have been or will be forced to sell farms and small businesses to pay the tax.¹⁴⁵ (The story of Lester Thigpen, an African-American tree farmer from Mississippi who was the grandson of slaves, is a prime example.)¹⁴⁶ Opponents also emphasize the costs that families must incur to plan for the tax, such as purchasing insurance to provide liquidity and paying advisors to help minimize potential taxes.

To the ire of estate tax supporters, however, many (if not all) of these stories are unproven. Namely, many of the individuals profiled by estate tax opponents would not have been subject to the tax, even at its pre-EGTRRA levels. And according to Michael Graetz, neither the American Farm Bureau nor New York Times reporter David Cay Johnston could find any farms that had actually been sold to the pay tax after a search in the late 90s.¹⁴⁷ Nevertheless, the possibility (however remote) that a family farm or small business could be harmed troubles many Americans. Moreover, many estate tax opponents overlook that this possibility becomes more likely were exemption levels to drop, and rates to increase, as they advocate.

Avoidance Costs. Another efficiency-related concern is that the tax raises little revenue while encouraging wasteful tax planning that renders the tax essentially voluntary.¹⁴⁸ In 2020, for example, the estate and gift taxes together raised only $17.6 billion—roughly 0.1% of gross domestic product.¹⁴⁹ Meanwhile, millions—possibly billions—of dollars¹⁵⁰ are spent each year on avoidance activities that involve complicated legal structures.¹⁵¹ Because of the availability of these structures to well-advised families, many view the estate tax as a “voluntary” tax that only the less-sophisticated, semi-wealthy pay, while the truly wealthy avoid it.¹⁵² Here, opponents of the estate tax see another reason to reject it, while supporters see a reason to strengthen it.

Administrative Costs. A related critique is the cost and difficulty involved in administering the estate tax. Some opponents estimate that taxpayers spend almost $20 billion annually complying with the tax,¹⁵³ although supporters of the tax dispute this figure. One contributor to high compliance costs is valuation difficulties.¹⁵⁴ While the assets of many middle- and upper-middle class individuals such as lawyers and doctors are fairly easy to value–cash, brokerage and retirement accounts, publicly-traded stock, and straightforward real estate like suburban houses—the same is not true for the wealthy. One estimate suggests that roughly half the assets owned by the wealthiest 1% of American families are hard to value, including unique real estate, closely held stock, noncorporate business assets, farm assets, private equity and hedge funds, art, limited partnership interests, and other miscellaneous assets.¹⁵⁵ Moreover, taxpayers can engage in a number of complicated transactions to artificially minimize the value of normally easy-to-value assets like stock.¹⁵⁶ To opponents, the fact that valuation is costly, time consuming, and imprecise is another reason its limited revenue is not worth the cost.

III. Settling the Debate with a Rignano Tax

As Section II shows, the debate over estate taxation is complex, implicating both normative values and empirical questions. The recent weakening of the tax suggests that opponents are winning this debate, to the great frustration of estate tax supporters who repeat the following laments: If only the public understood that the tax affects a mere sliver of the population and how few family farms and small businesses are impacted by it. If only the public knew that the tax’s burden likely falls on heirs, who have not in fact done anything to earn the wealth in question. If only opponents could see that the estate tax is not double taxation, due to the realization requirement and the step-up in basis. If only the public appreciated the harms of inequality.¹⁵⁷

Estate tax advocates thus keep recycling the same tactics. One approach is to try to correct the public’s factual misperceptions about double taxation, the impact on family farms and small businesses, and how many estates are hit by the tax.¹⁵⁸ Another is to argue that taxing the recipient instead of the transferor (via an accessions tax or income inclusion) would better display the tax’s goals and burdens to the public, thereby convincing them of the value of taxing wealth transfers.¹⁵⁹

But these approaches miss the mark by failing to adequately account for deeply held beliefs shared by a large portion of the population about fairness, desert, private property, and family. This Section first explores these beliefs, as well as seemingly contradictory views on equal opportunity and democratic participation that are also widely held. It then argues that a Rignano tax is the best way to reconcile the competing moral intuitions held by many Americans.

A. Attitudes Toward Taxation, Fairness, Redistribution, and Equality

Crucially, these beliefs about fairness, desert, and property rights—which Liam Murphy and Thomas Nagel call “everyday libertarianism” and which economist Steven Sheffrin terms “folk justice”¹⁶⁰—often do not overlap with the philosophical and economic frameworks favored by policymakers and academics. Sheffrin explains:

Ordinary individuals hold a set of psychological principles about fairness in taxation that are considerably broader and that differ in systematic and fundamental ways from the ideas of fairness that dominate our public debate today. . . . [T]he emphasis on tax fairness as redistribution comes from academic work in philosophy and economics that, in many ways, stands apart from the concerns that motivate everyday people. . . . [T]ax fairness is important, but it is not synonymous with redistribution. To the average person, tax fairness means something else, primarily receiving benefits commensurate with the taxes one pays, being treated with basic respect by the law and the tax authorities, and respecting legitimate efforts to earn income. The average person is not totally indifferent to inequality, but concerns for redistribution are moderated by the extent to which income and wealth have been perceived to be earned through honest effort.¹⁶¹

Because the public takes these views so seriously, policymakers who simply try to convince the public to change its views face an uphill battle. For example, Murphy and Nagel acknowledge that their argument that pre-tax income is meaningless is “counterintuitive” and that “[c]hanging this [belief] would require a kind of gestalt shift, and it may be unrealistic to hope that such a shift in perception could easily become widespread.”¹⁶² Sheffrin terms this “resonance,” arguing that “[a]ny ethical or social theory that does not resonate with folk ideas will be doomed to eventual failure as a vehicle for social change. Understanding folk ideas of justice is then essential to building effective social structures.”¹⁶³

Going further, many theorists argue that when policymakers fail to take these views seriously, they end up undermining their own normative aims.¹⁶⁴ Zachary Liscow illustrates with the common law and economics wisdom that redistribution should take place solely in the tax and transfer system. He argues that this approach makes sense in theory but fails in the real world because it “ignores how ordinary Americans think about [taxes] and thus ends up exacerbating inequality rather than mitigating it.” As a result, “tax policy runs up against political constraints—driven by ordinary people’s

attitudes about taxation” that prevent tax policy from accomplishing policymakers’ goals.¹⁶⁵

Taxation and Folk Justice

What are these attitudes? One key belief relates to what moral philosophers call “desert” and what Steven Sheffrin terms “equity theory.” To everyday people, there should be a roughly proportional relationship between effort and results.¹⁶⁶ People believe that the money they earn belongs to them,¹⁶⁷ and that if they “earn more money, they deserve to keep a decent share of it.”¹⁶⁸ Even those who critique this belief acknowledge that the “idea that people deserve to be rewarded for thrift and industry” is natural to many and that “it can seem preposterous” that hard-working individuals who are willing to take risks do not deserve more than the lazy and unadventurous.¹⁶⁹ Although scholars debate the merits of these views,¹⁷⁰ numerous studies suggest that substantial portions of the public subscribe to them.¹⁷¹ As Murphy and Nagel recognize, to many, these views are “instinctive[],”¹⁷² “ingrained,”¹⁷³ and “hard to banish from [] everyday thinking.”¹⁷⁴

These beliefs lead to a distaste for redistributive taxation generally, and to some extent, opposition to the estate tax simply reflects these general principles of folk justice. But Sheffrin identifies two further aspects of folk justice that supercharge these attitudes as applied to the estate tax. In his view, the fact that estate tax opponents have successfully capitalized on these folk justice beliefs—while estate tax supporters have ignored them—explains a large part of the tax’s deep unpopularity.¹⁷⁵ (Polls consistently suggest that roughly fifty percent of the population supports repealing it entirely).¹⁷⁶

Moral Mandates. One concept is that of moral mandates, which are deeply held, non-negotiable subjective beliefs about right and wrong. These beliefs are resistant to logical argument, and can be seemingly inconsistent, such as when a pro-life advocate also favors the death penalty.¹⁷⁷ When something contravenes a moral mandate, it generates a level of outrage that might seem excessive. An act becomes “wrong” and not merely “disagreeable.”

According to Sheffrin, several of the arguments discussed in Section II.B. rise to the level of moral mandates. One is that imposing a tax when someone dies is simply immoral. On this account, the estate tax “comes at the worst possible time for families – the death of their family’s breadwinner.”¹⁷⁸ People are simultaneously grieving their loved ones and worried about providing for the family that’s left behind. Telling people that it’s not death per se that triggers the tax but instead the transfer of wealth; or that grieving families have to deal with all kinds of logistical and business arrangements, such as funerals and the probate process; or that the families affected by the tax are wealthy and well-provided for, will not make any headway. The tax is associated with death, and that simply seems immoral to many.

Another moral mandate—one which polling data suggests has been extremely influential—is that double taxation is unfair.¹⁷⁹ People have deeply-held beliefs that if someone works hard and saves their whole life, paying taxes as she goes along, she should be able to leave her wealth to her family at her death without the government swooping in a second time.¹⁸⁰ And again, telling people that double taxation is not unique to the estate tax, or that much wealth subject to the estate tax has not already been taxed, is pointless.

And finally, people value entrepreneurship.¹⁸¹ They view the tax as disincentivizing hard work and wealth accumulation, thus undermining another deeply held value. Demonstrating that very few small businesses or family farms owe the tax, let alone need be liquidated to pay the tax, is largely fruitless.

System Justification. In addition to touching on moral mandates, Sheffrin argues that the tax also implicates “system justification theory.” This theory—somewhat like cognitive dissonance—posits that individuals adapt their beliefs to defend existing systems and the status quo, even when they do not appear to benefit from those systems. They thus react strongly to threats to that system, even when people other than themselves—such as the wealthy—will be the ones harmed by those threats.¹⁸²

Specifically, the estate tax appears to threaten two key systems: the family and our meritocratic system that rewards talent and effort. Even if the estate tax will not affect the majority of Americans, many view wealthy businesspeople as “valuable members of society who deserve their wealth and support the American economy.”¹⁸³ As such, a tax that affects them undermines an entire system of which they are a part. Likewise, even if the families affected by the tax are rich families, taxing them when they engage in a familial act of generosity threatens the family system that we are all a part of.¹⁸⁴

Policy Silos

At the same time that the public opposes estate taxes, however, it also shares many of the values highlighted by its supporters. Economist Stefanie Stantcheva’s recent empirical work on how people reason about income and estate taxes illustrates this seeming contradiction. In a large-scale representative survey, Stantcheva finds that 58% of respondents believe that parents should be able to pass along whatever they wish to their children, even if that creates unequal opportunities at a societal level, and that 61% of respondents believe that it is unfair to tax the estates of hard workers. Yet in this same group,

68% say that it is unfair that children from wealthy families have access to better amenities such as schools;

64% believe that the wealth distribution is unfair; and

46% view inequality as a serious issue.¹⁸⁵

Stantcheva is not the first to note that many people hold a variety of conflicting beliefs simultaneously. In fact, her findings illustrate another aspect of moral mandates—people form them on an issue-by-issue basis. They do not represent an overarching world view, and they may contradict each other, as when a pro-life advocate also favors the death penalty.¹⁸⁶

Zachary Liscow calls this phenomenon “policy silos,” meaning that “ordinary people hold category-by-category views about what is just for a given policy and apply those views partly in isolation.”¹⁸⁷ For example, people view taxation and transportation separately, such that they may oppose redistributive taxation but favor redistributive transportation policy. The former is “giving” money to the poor, while the latter is helping them get to work.¹⁸⁸ Stantcheva’s findings echoed this observation, as respondents’ views differed based on whether the questions focused on parents/transferors or children/transferees. To put it in Liscow’s terms, people appear to view estate taxes in a different silo than equal opportunity concerns.

As a result of siloing, public support for two economically identical but superficially different programs can vary based on framing.¹⁸⁹ This has two implications. First, Liscow argues that lawmakers should not rely on the tax system as the sole means of redistribution but should also implement redistributive policies elsewhere. A second implication is that when policymakers do use the tax system for redistributive or similar reasons, they should take advantage of siloing, as the public’s dislike of one tax might not necessarily translate into a dislike of a different tax. Joseph Thorndike has observed, for example, that even though the public hates the estate tax, it favors wealth taxes.¹⁹⁰

A Rignano Tax Reconciles These Competing Intuitions

What does all this mean for wealth transfer taxes? One common suggestion is to replace the estate tax with a recipient-focused accessions or inheritance tax.¹⁹¹ The hope is that focusing attention on recipients will shift the debate more firmly into the equal opportunity silo instead of the tax silo, as well as lessening the intensity of some of the moral mandates around double taxation, entrepreneurship, hard work, and thrift.

This Article takes that suggestion one step further. A Rignano-style accessions tax that exempts first-generation transfers does an even better job of incorporating folk justice and people’s everyday psychological intuitions about the estate tax. Imagine the following structure (which Section IV fleshes out in more detail): Grandfather builds a business from the ground up and bequeaths $10,000,000 to Mother. No tax is imposed, but if Mother does not create any wealth of her own and simply retransfers $10,000,000 to Daughter, all of Mother’s estate is taxed. In contrast, if Mother creates new wealth, different portions of her estate are treated differently. The inherited $10,000,000 that Mother re-transfers is taxed, while any newly earned wealth is not.

By allowing individuals to make tax-free transfers of wealth that they themselves have earned—but not wealth that they have merely inherited—a Rignano tax acknowledges the very real, deeply-held value that the public places on hard work, entrepreneurship, and notions of desert while also addressing the concerns people hold about the prevalence of inherited wealth.¹⁹²

IV. A Rignano Tax

The idea of taxing second- or third-generation wealth more heavily than newly earned wealth has a long history. Roughly 100 years ago, Eugenio Rignano offered the first sustained treatment of it, arguing that such a tax is the best way to move gradually toward socialism.¹⁹³ Rignano believed that the means of production should eventually be owned by the government, but that individuals, not the government, are better wealth-creators. He thus proposed a tax that would exempt transfers by wealth-creators, tax second transfers at 50%, and tax third transfers at 100%. This, he believed, would be the most efficient way to implement socialism.¹⁹⁴

Libertarian Robert Nozick later picked up this idea, albeit for decidedly non-socialist reasons. In The Examined Life, Nozick suggests that a Rignano-type structure is the best means of balancing competing intuitions about family ties, wealth and inheritance, and fairness. He first defends the right of individuals to bequeath what they have created themselves as an act of love: “Bequeathing something to others is an expression of caring about them, and it intensifies those bonds. . . . [T]he donor . . . has earned the right to mark and serve her relational bonds by bequeathal.”¹⁹⁵ But he does not view second-generation inheritances as a similar act of love, due to the lack

of connection between the person who created the wealth and the second recipient.

He also acknowledges, moreover, that when wealth is “passed on for generations to persons unknown to the original earner and donor, [it] produc[es] continuing inequalities of wealth and position” and that the “[t]he resulting inequalities seem unfair.”¹⁹⁶ Unfortunately, Nozick’s discussion of this tension is rather sparse. He does not explain, for example, why he believes the resulting inequalities are unfair. Nor do we know whether first-generation bequests are inherently fair, or whether they are unfair, but whose unfairness is outweighed by the value of the donor’s ability to express affection and love.¹⁹⁷

And most recently, philosopher Daniel Halliday argues that a Rignano tax furthers equality of opportunity ideals better than traditional estate and inheritance taxes. In his view, context matters—that is, whether someone is born into a family that has not just wealth, but long-standing wealth and the social and cultural capital that accompanies it (let’s call these “wealth norms”). Imagine that Grandfather starts with nothing, builds a successful business, and leaves all his wealth to Mother at his death. Halliday believes that this bequest does not give Mother a head start in life. Her life prospects were largely shaped long before receiving her inheritance, when she was young and Grandfather was still building his business. He had not yet amassed enough wealth to pay for private school and expensive tutors for Mother, to give her seed money to start her own business or to launch her own career. Moreover, Grandfather’s self-made status suggests that the family did not have wealth norms when Mother was growing up. Instead of golfing at a country club, Grandfather likely bowled in the neighborhood bowling league and did not have the same cultural norms and social and professional networks as families with older wealth.

But now consider Mother and Daughter. Halliday argues that “parental conferral of advantage compounds over successive generations. . . . Families that have been wealthy for longer possess a greater range of powers that keep their children privileged.”¹⁹⁸ Grandfather’s bequest allows Mother to provide advantages to Daughter that she herself did not have, such as high-quality schools, tutors and after-school lessons, and expensive camps. It also means that Daughter—unlike Mother—grows up in a family with wealth norms. The family belongs to a country club, not a bowling league. Mother’s contacts can give Daughter internships, and Daughter knows which fork to use during the interview lunch and how to dress for it. For these reasons, Halliday views the transmission of wealth across three generations as a contributor to and a tag for economic segregation, which he argues undergirds unequal opportunities. As such, these inheritances should be taxed.

In contrast, Halliday contends that first-generation inheritances should not be taxed. Not only are they not problematic, but they might even reduce economic segregation by serving as a safety net keeping middle-class families afloat in a stagnating or contracting economy. Halliday observes that in many areas, the costs of housing and other necessities have skyrocketed while middle-class wages have stayed flat, rendering home-ownership unaffordable to many such families. But if Grandfather leaves the family home to Mother, or enough money for a down payment, this helps minimize economic segregation in such areas. First-generation inheritances thus counteract inequality of opportunity and therefore should not be taxed.

Implementing a tax that exempts the first transfer but taxes the second might sound simple to those unfamiliar with tax policy. Yet the devil is in the details. Implementing a Rignano tax requires resolving seven design decisions, explored below: the (1) base; (2) rates; (3) valuation; (4) frequency; (5) tracing; (6) transfers in trust; and (7) transition rules. Although a Rignano tax is complex, crafting one is possible.¹⁹⁹ As we shall see, in many instances one solution is superior regardless of why one wants to tax old money more heavily than new. With other decisions, however, differing justifications for taxing repeated wealth transfers point in different directions.

A. The Base

This section addresses three base-related decisions: Should the tax focus on transfers or receipts? Should it treat gifts and bequests equally? And should it contain any exclusions or exemptions?

Transfers or Receipts?

The first base-related question is whether to tax receipts or transfers. If Grandfather earns a fortune, leaves it to Mother, and Mother in turn passes it along to Daughter, who does the tax focus on? Does it look at Grandfather and Mother in turn, and tax Mother because she’s the one who re-transfers wealth while exempting Grandfather because he’s the one who earned the wealth? This model is akin to a traditional estate tax, which focuses on the total amount of wealth transferred by an individual over the course of her lifetime.²⁰⁰ Or does it look at each and ask who among them received re-transferred wealth (here, Daughter)? This is similar to traditional accessions or inheritance taxes, which apply to transferees based on gifts and bequests received.²⁰¹

In either case, the tax is imposed once, at transfer.²⁰² But the distinction matters, both psychologically and normatively. At first glance, one might think an estate tax model makes the most sense. If Grandfather creates the wealth, and the goal is to allow him to transfer it tax-free, then the focus should be on him. Yet this ignores many of the normative aims of those who wish to tax wealth transfers in the first instance.²⁰³

Start with dynastic wealth and equality of opportunity concerns. Looking at the sum of gratuitous transfers received by a given individual tracks ex ante differences in opportunity better than looking at aggregate transfers made by an individual. Imagine a decedent with an estate of $5,000,000. An estate tax treats her the same whether she leaves it all to one child or splits it up among ten recipients. Yet receiving $5,000,000 impacts life opportunities much more dramatically than receiving $500,000. The same is true for dynastic wealth: what matters is how much wealth someone receives. An inheritance of $50,000,000 bestows political and economic power in a way that an inheritance of $500,000 does not. As numerous commentators have acknowledged, a recipient-focused accessions or inheritance tax better reflects these concerns.²⁰⁴

Next consider the welfarist argument that gratuitous transfers received should count toward an individual’s ability to pay, just like salary, business profits, and gains from property sales. This concern also suggests a recipient-focused tax. How much wealth a transferor has does not necessarily correspond to the ability to pay of the transferee. For example, Lily Batchelder and Surachai Khitatrakun estimate that “22% of heirs burdened by the estate tax have inherited less than $500,000, while about 21% inheriting more than $2,500,000 bear no estate tax burden.”²⁰⁵

An accessions-tax framework also better addresses the concern that wealth concentrations are in and of themselves harmful by encouraging donors to split their fortunes up. An estate tax would treat Warren the same whether he leaves his fortune in one big bundle to one lucky heir, or whether he splits it up among multiple recipients. But an accessions tax treats these two situations differently, since it focuses on cumulative gifts and bequests received in excess of an exemption amount. Since each recipient has their own exemption amount, splitting a large fortune up generates a lower overall tax bill.

Finally, the psychological insights discussed in Section III.B. also point to the superiority of an accessions tax. Recall, for example, Stantcheva’s findings that support for transfer taxes rises when people focus on recipients instead of transferors.²⁰⁶ This is likely due in part to framing and siloing, but perhaps also to the fact that focusing on recipients weakens the pull of moral mandates about double taxation and hard work.²⁰⁷

Gifts

A second decision is whether the tax should apply not only to bequests but also to gifts. Although Rignano clearly suggests taxing both, Halliday is more equivocal. Halliday’s equivocation is misplaced; the tax should apply to both equally.

a. Gifts in General

Consider the various reasons for taxing wealth transfers, starting with equality of opportunity. As Halliday notes, gifts are usually received earlier in life than bequests. This creates advantages sooner rather than later for the donee and her family, thus magnifying those advantages.²⁰⁸ For this reason, Anne Alstott has suggested varying inheritance tax burdens based on the recipient’s age.²⁰⁹ Further, the act of making a gift suggests that the donor feels financially secure enough to dispose of some of her wealth while alive, which makes it more likely that her heirs grew up in a family with wealth norms.

The ability-to-pay and dynastic wealth concerns also suggest taxing both gifts and bequests. Both gifts and bequests enable recipients to spend money for political purposes as well as influence the economic lives of others. Both gifts and bequests provide utility to recipients. In fact, declining marginal utility suggests that gifts might even provide more utility than bequests of comparable size, as individuals tend to have less money earlier in their lives. And both serve as a tag for one’s nonfinancial endowment. Again, gifts may signal greater nonfinancial advantages than comparably sized bequests, as families that engage in lifetime gifting are often wealthier than families who do not.

Moreover, Halliday’s arguments for excluding gifts from a Rignano tax do not withstand scrutiny. One argument is that transferors have such a strong preference for bequests that excluding gifts would not encourage them to make gifts instead.²¹⁰ Halliday correctly observes that many transferors do not maximize opportunities to make tax-free gifts under current law and that many people save more than enough to cover the expenses of old age. He also acknowledges, however, that these statistics reflect decisions made during periods with relatively low rates and that they likely underestimate the extent to which wealthier families will change their behavior. A key part of estate planning for such families is maximizing the tax advantages of lifetime gifts, and minimizing the ability of transferors to characterize bequests as gifts creates a great deal of complexity in the current estate tax system.

Halliday also argues that taxing gifts is essentially pointless.²¹¹ He believes that most gifts can be easily concealed—unlike bequests, which are documented during probate and hard to hide. But many large gifts are similarly hard to conceal. Stock transfers are recorded; large cash transfers are tracked. And even gifts of jewelry and other family heirlooms generate records when donees insure them. Of course, under-the-table gifts will always occur, but not at a level that makes attempting to tax gifts pointless. Because this Article advocates for treating gifts similarly to bequests, later references to “bequests” or “inheritances” refer to gifts and vice versa.

b. Gifts and Timing Complications

Taxing gifts does raise a complication related to timing. Return to Grandfather, Mother, and Daughter. We do not know exactly how much Mother will inherit—which affects the accessions tax imposed on Daughter—until Grandfather is dead. If the tax only applied to bequests, this would not be a problem. But what if the tax also applies to gifts and Mother makes a gift to Daughter while Grandfather is still alive, before he bequeaths any wealth to Mother?

To illustrate, imagine that Mother gives Daughter $1,000,000 and five years later, receives $10,000,000 from Grandfather. If we look just at the first gift of $1,000,000, it initially appears to be newly created wealth that should not be taxed. But money is fungible; if Mother knows she’s about to receive an inheritance, this frees her up to make a lifetime gift to Daughter, whether from her own or borrowed funds. The tax would be easy to avoid if we simply cast any transfer from Mother’s generation to Daughter’s generation as a first transfer of wealth if it comes before Grandfather transfers anything to Mother. Yet whether Mother inherits before or after the gift to Daughter seems irrelevant if the point is to tax the second generation in a family that inherits wealth. This is especially true if one views second-generation wealth transfers as more of a welfarist or equal opportunity concern than first-generation transfers.

A “catch-up tax” that applies to transferees who have themselves made prior transfers can account for this scenario. When Daughter receives $1,000,000 from Mother, the tax—as applied to Daughter—would treat it as a first-generation transfer because at that point, Mother has not yet inherited anything. When Mother later inherits $10,000,000 from Grandfather, the tax—as applied to Mother—would treat different parts of that bequest differently. It would treat $9,000,000 as first-generation wealth and any amounts previously transferred by Mother to Daughter—here $1,000,000—as second-generation wealth.

Now consider what might happen later. One possibility is that Mother consumes the $10,000,000 she inherits from Grandfather, making no more gifts to Daughter. Because Daughter receives nothing more, no more tax is imposed upon the family. In total, $11,000,000 has been transferred within the family ($10,000,000 to Mother, and $1,000,000 to Daughter.) Overall, the tax will have treated $10,000,000 as first-generation wealth (Daughter is taxed as receiving $1,000,000 of first-generation wealth and Mother is taxed as receiving $9,000,000) and $1,000,000 as second-generation wealth (imposed on Mother via the catch-up tax at Grandfather’s death).²¹² In essence, the price Mother pays for making a lifetime gift before receiving her own inheritance is that she, not Daughter, is treated as having received a second-generation transfer.

Another possibility is that Mother later passes her $10,000,000 inheritance down to Daughter. In that case, a total of $21,000,000 has been transferred within the family ($10,000,000 to Mother, and $11,000,000 to Daughter). Of this, $10,000,000 represents a second transfer, and $11,000,000 represents newly created wealth (Grandfather created $10,000,000 and Mother created $1,000,000). When Daughter receives Mother’s $10,000,000 inheritance, the tax should therefore treat only $9,000,000 as second-generation wealth. This accurately taxes $10,000,000 of the family’s total transfers as second-generation wealth (recall that when Mother received her inheritance, $1,000,000 was treated as second-generation due to the catch-up tax), and $11,000,000 as first-generation wealth ($1,000,000 when Daughter received Mother’s lifetime gift, $9,000,000 of Mother’s receipt from Grandfather, and another $1,000,000 when Mother dies).

Exclusions and Exemptions

The last set of base-related decisions concerns exclusions and exemptions. As both Rignano and Halliday suggest, each individual should have a relatively small lifetime exclusion amount.²¹³ Assume that after Grandfather bequeaths his $10,000,000 to Mother, she has several runs of bad luck and passes along only $1,000,000 to Daughter. Even though that $1,000,000 is second-generation wealth, it seems plausible to allow Daughter to inherit something free of tax for the same reasons that most (if not all) systems have such exemptions. In addition to administrative concerns, allowing small inheritances tax-free recognizes that bequests are a natural part of most families’ lives, and that they can provide a needed cushion for many less-wealthy individuals. Any amount chosen would be arbitrary, but something like $500,000 or $1,000,000 seems reasonable.

For similar reasons, the tax should have something similar to the annual exclusion described in Section I, but on a smaller scale. The annual exclusion’s purpose is to simplify record-keeping and to recognize that intra-family gift giving for birthdays, weddings, and holidays is a normal, everyday occurrence in almost all families that does not trigger any normative concerns. These same concerns are relevant in a Rignano tax. That said, the current $19,000 per recipient exclusion is far larger than necessary to cover regular birthday and holiday gifts, and in fact, allows for much tax-free giving that exacerbates unequal opportunities.²¹⁴ As with the lifetime exemption amount, any chosen number would be arbitrary, but something like $5,000 seems reasonable.

Most transfer tax systems also exempt marital and charitable transfers. Intra-spousal transfers should not be taxed, as they do not transmit wealth down to a lower generation.²¹⁵ Charitable transfers are a bit trickier from a normative perspective. In theory, their treatment should depend on what kind of charity receives the gift or bequest. If one’s concern is equality of opportunity, for example, a gift to an inner-city tutoring program furthers equality of opportunity while other gifts may undermine it (imagine gifts to private foundations that employ family members or to a private school that provides few scholarships).²¹⁶ But if one goal of a Rignano tax is to gain public traction where other transfer taxes flounder, charitable transfers should be exempted. Charities benefit from a “halo effect,” and the point that some charities exacerbate social ills is nuanced and hard for the public to understand. Further, giving to charity is seen as virtuous, and may invoke reactions similar to the moral mandates and systems justification theories discussed earlier.

A final question is whether the relationship between the wealth creator and the second recipient should matter in determining whether a gift or bequest received is second-generation. Specifically, should second-time-around transfers that originate in a different family be exempted if the recipient is the first in her family to inherit? Halliday, for example, suggests the tax should apply to anyone whose parents or grandparents have inherited, but not to individuals who are the first in their families to inherit. That makes sense if one’s concern is equal opportunity and if one agrees with Halliday that repeated wealth transfers are the real culprit in that context due to the creation of wealth norms and economic segregation.²¹⁷

Imagine two scenarios in which Grandfather starts with nothing, earns a fortune, and leaves it to Mother. In Childless, Mother has no children and leaves her wealth to Friend’s child. Mother’s Friend neither inherits from Friend’s parents nor bequeaths any wealth to Friend’s child. In Helping Hand Family, Mother has a daughter, to whom she leaves her wealth. In both cases, Mother inherited wealth and then passed it along a second time. In that sense, both Daughter and Friend’s child have received second-generation wealth. But if the concern is that repeated wealth transfers create or signal economic segregation and wealth norms, then Daughter and Friend’s child are not similarly situated. Friend’s child is the first in Friend’s family to inherit, and in that sense, what she receives is not second-generation wealth.²¹⁸ Daughter, by contrast, belongs to the second generation of Mother’s family to inherit. This suggests looking not only at the recipient, but also at the pattern of prior transfers in the recipient’s family—if one shares Halliday’s concerns.²¹⁹

However, other normative justifications for taxing wealth transfers point in other directions. If one’s focus is dynastic wealth and traditional equality of opportunity concerns, or welfarist concerns, then the source of the gratuitous transfer should be irrelevant. Receiving unearned advantage, power, or welfare is the main concern, more than whether that receipt followed an intra-familial chain of transmission. The same is true if one’s concern is the mere existence of wealth.

Likewise, the psychological insights of folk justice suggest that treating intra-family transfers worse than other transfers would not fare well. First, system justification theory indicates that a large factor in hostility to the existing estate tax is its perceived threat to the family.²²⁰Second, it is plausible that people hold moral mandates about family businesses and family farms that would be triggered if intra-family transfers were treated worse. Thus, any softening of the public’s opposition to inheritance taxes that comes from exempting first transfers would likely be undone if familial transfers were treated worse than other second transfers.

B. The Rate

After choosing a base, one must also choose a rate. Halliday and Rignano both use examples in which first-generation transfers are not taxed, second-generation transfers are taxed at 50%, and third-generation transfers are taxed at 100%.²²¹ This Article proposes completely exempting first-generation inheritances and taxing subsequent ones at a rate of 40%, although it acknowledges that any rate will be somewhat arbitrary. Although this Article’s normative arguments point to taxing later transfers more heavily than initial transfers, they do not point to specific rates the way they signal, for example, that gifts and bequests should both be taxed. Nor does past experience illuminate the perfect rate as a technical matter. Perhaps

more than any other design question, choosing a rate reflects balancing numerous political considerations.

Initial Transfers

The rate on initial transfers should be a simple, easy to understand zero. Work on cognitive psychology and tax suggests that individuals focus on “highly visible” and “easily recallable” aspects of a tax; this is known as “prominence” or “saliency.” When thinking about income taxes, for example, the public tends to focus on the highest marginal rate.²²² Completely exempting initial transfers of wealth provides a sharp and clear distinction between initial and successive transfers in a way that merely using a lower rate does not. “You are not taxed at all when you pass along wealth that you have earned” has a salience that “you are taxed less” lacks.

The former also harnesses the power of folk justice better than the latter. Start with systems justification theory and the notion that taxing wealth transfers threatens a system that people are a part of and value. Here, it is the act of taxation in and of itself which is harmful. Taxing transfers of earned wealth at a low rate is still taxing them. Telling people that a system they care about is damaged only “a little bit” will do little to assuage the concerns of those who value the family. Damaging something valuable a little bit still damages it.

Completely exempting initial transfers also better counters the double taxation argument. Once again, it is the act of taxation—not the level of taxation—that gives this argument weight with the public. The public believes (rightly or wrongly) that the wealth-earner has already been taxed on the wealth. Educating the public about untaxed appreciation and the step-up in basis has not countered that. Nor has emphasizing that what should matter is the total tax burden, not the number of times something is taxed. Telling the public that you are taxing earned wealth less than inherited wealth will be similarly fruitless. From a folk justice perspective, the best way to address concerns that earned wealth is being double taxed is to be crystal clear that transferring it does not trigger tax. Only completing exempting such transfers does this.

Subsequent Transfers

If first-generation transfers are completely exempted, how should later transfers be treated? Rignano suggested taxing second-generation transfers at 50% and third-generation transfers at 100%; although Halliday rejects the latter suggestion, he does not address whether second- and third-generation transfers should be taxed differently.²²³ This Article proposes treating them alike by taxing all later transfers at a flat rate of forty percent.

As an initial matter, second- and later-generation transfers should be treated similarly to each other. While the insights of folk justice strongly point to distinguishing first-generation wealth, they do not justify treating later transfers differently from each other. Nor do most of the justifications for taxing wealth transfers. Gifts and bequests received increase well-being and enhance ability to pay, regardless of whether the transferor earned or inherited the wealth in question. Money is money when it comes to political spending. Similarly, under traditional equality of opportunity concerns, money is money when it comes to paying for private school tuition or houses in top school districts, tutors, or fancy camps.

That said, other justifications are plausibly consistent with distinguishing among second-generation and later transfers, even if they do not necessarily mandate such an approach. Take Halliday’s linkage of wealth norms and equality of opportunity; it is likely that the older the family’s money, the stronger the wealth norms. Likewise, it is plausible that the longer a family has been politically or economically powerful in a given town, the more powerful they are. Knowing that another family has had power over yours for decades is probably more demoralizing the longer that has been the case.

In these cases, however, any difference in power or opportunity between second- and later-generation wealth diminishes over time. Let’s illustrate with wealth norms and equal opportunity: Grandfather creates wealth, which he passes along to Mother, who in turn passes her inheritance along to Daughter. Under Halliday’s reasoning, Mother enjoys substantially fewer advantages than Daughter, since Mother grows up in a family with first-generation wealth and Daughter grows up in a family with second-generation wealth. Yet it is unlikely that Daughter has substantially fewer advantages than Daughter’s children. The marginal advantage of growing up with third-generation wealth as opposed to second is likely much smaller than the marginal advantage of growing up with second- versus first-generation wealth. The case for distinguishing between second- and later-generation inheritances is therefore much weaker than for distinguishing first transfers.

And on a practical level, treating second and third inheritances alike minimizes the valuation, tracing, and record-keeping concerns addressed below. All that need be determined is how much an individual’s parents inherited. Given the weak theoretical case for distinguishing among later transfers, and the strong practical case against doing so, treating second and later transfers similarly to each other is preferable.

This Article thus proposes a rate of 40% on subsequent transfers, which is the current estate tax rate in the U.S. This number is admittedly arbitrary, and none of the theoretical considerations discussed above mandate any given rate. That said, something about tax rates that exceed 50% seem to hit a nerve with people. And given the prominence bias discussed above, it is likely that a Rignano tax that is seen as “raising rates” above current levels would face more opposition than one that does not raise rates.

Adjusting for Age

A final rate-related issue is whether gifts and bequests received earlier in life should be taxed more heavily than those received later in life. Here, practical and theoretical considerations are in tension. Several justifications for taxing wealth transfers point in the direction of adjusting for age, such as equal opportunity theory.²²⁴As theorists recognize, receiving an inheritance early in life alters one’s life prospects more than receiving one later in life. A $1,000,000 bequest at age twenty-five provides seed money for a start-up, while such a bequest at age sixty-five likely does no more than enable one to enjoy a more comfortable retirement. Other justifications, however, do not support adjusting for age. A large bequest increases one’s ability to pay regardless of one’s age, for example. And although such adjustments could be made,²²⁵ doing so adds another layer of complexity and is probably not worth that additional complexity.

C. Frequency: Determining the Number of Transfers

A further issue is determining how many times wealth has been transferred. Revisit Grandfather, Mother, and Daughter. Two questions arise. First, if Grandfather leaves his wealth directly to Daughter in a “generation-skipping transfer” that skips over Mother, is that a first- or second-generation transfer? Put another way, should that be treated the same or differently than if he leaves it to Mother, who in turn re-bequeaths it to Daughter? Second, what if Grandfather leaves his wealth to Mother, who

dies soon thereafter? Should adjustments be made for deaths in rapid succession?

Generation-Skipping Transfers

Let’s start with generation-skipping transfers. Current law imposes an additional tax on such transfers to ensure that families face an equivalent level of tax whether their wealth proceeds directly from one generation to the next or skips over one generation. This prevents ultra-wealthy families in which Mother’s generation may not need Grandfather’s wealth from minimizing their tax burden by having Grandfather pass his wealth directly to Daughter.

Although counterarguments exist, a Rignano tax should contain similar rules that treat a transfer by Grandfather directly to Daughter as a second transfer instead of a first. This would prevent families from avoiding one level of tax by skipping generations. As under current law, however, exceptions should apply if Mother pre-deceases Grandfather, such that Grandfather’s transfer to Daughter does not skip over a living person.²²⁶

To be sure, this design decision runs counter to folk justice principles. It renders transfers directly to grandchildren vulnerable to the double taxation argument and to system justification concerns about harming families. But the Rignano tax is not a tax designed to further folk justice principles; rather, it is a tax designed to take such principles into account when designing a wealth transfer tax that achieves other goals. Here, treating such transfers as first transfers would allow for too much game-playing, thus undermining the goals of taxing second-generation wealth. Moreover, it is plausible that the treatment of such transfers will be less salient to the public than the fact that the default for first transfers is complete exemption.²²⁷ For these reasons, the better approach is to treat generation-skipping transfers as two transfers, not one.

Transfers in Rapid Succession

A related issue is how to treat transfers in rapid succession. Imagine that Grandfather bequeaths his fortune to Mother, who dies unexpectedly a few months later, re-transferring his wealth to Daughter. Should this be considered a second transfer? Halliday argues that it should not be: “A short interval between bequests may mean that a donor has had less opportunity to save and accumulate due to an early death. It is harder to say, in that case, that this person’s bequests should still be taxed as if he or she had remained idle.”²²⁸

Halliday’s approach is misguided; transfers in rapid succession are still transfers. Halliday is correct that Mother has had less time to build upon Grandfather’s inheritance after receiving it. Yet he ignores that she had time before either her or Grandfather’s death to earn her own wealth, and that wealth will be taxed as first-generation wealth. Counting each transfer treats Mother and Daughter the same as other families.

D. Valuation

Perhaps the most difficult issue is how to value re-transferred wealth. Revisit Grandfather, who starts with nothing and builds a $10,000,000 fortune. He bequeaths his wealth to Mother, who later dies with a $50,000,000 fortune which she leaves to Daughter. How much of Mother’s $50,000,000 should be considered a second transfer of Grandfather’s wealth? Rignano and Halliday, without discussion, use a simple but flawed approach in their examples: they would treat $10,000,000 as a second transfer and $40,000,000 as newly created wealth.

The Problem

This approach erroneously overlooks the fact that asset values fluctuate over time due to a variety of causes—inflation, the time value of money, changing market conditions, and the owner’s efforts. Take inflation. Imagine that Mother invests her inheritance in an asset that keeps exact pace with inflation. $10,000,000 inherited in 1993 has an inflation-adjusted value of roughly $22,700,000 in 2025.²²⁹ The Rignano/Halliday default wrongly treats the $12,700,000 increase that is due to inflation as instead stemming from Mother’s efforts. But Mother has added no value. The asset has simply kept up with inflation.

Risk-Free Rate of Return as the Default Solution

A more accurate approach would impute the risk-free rate of return to Grandfather’s fortune. This better distinguishes between earned and inherited wealth by recognizing the dual roles of risk and choice. To illustrate, imagine that Grandfather leaves Mother a building worth $10,000,000 that is worth $30,000,000 when she re-bequeaths it to Daughter. As explained above, attributing only $10,000,000 of the building’s value to Grandfather overstates Mother’s contribution and understates Grandfather’s. Yet attributing all $30,000,000 to Grandfather does exactly the opposite. It overstates Grandfather’s contribution and understates Mother’s.

What is key is that when Mother inherited the building, she had a choice. At that point, she held $10,000,000 of wealth that she could invest however she liked. She could continue to hold that particular building, swap it for other real estate, or cash out and invest in stocks, bonds, or a risky start-up. If she keeps the building itself, some—but only some—of any later increase in value is due to her choice to do so.

More specifically, a later increase in value has three possible components: the risk-free rate of return, a return to risk, and (occasionally) inframarginal returns.²³⁰ The risk-free rate of return is the return one would receive by investing in a zero-risk project with a guaranteed return, such as a U.S. Treasury bond. This return is simply compensation for using the invested funds—a pure time-value-of-money return sometimes referred to as the “return to waiting.”²³¹

To illustrate, imagine a stock investor. Unlike a bond investor, the stock investor does not know ex ante whether she will recoup her investment. Because the company’s value could either increase or decrease, she will insist on a higher return to compensate her for taking on that risk. Most investment returns are comprised solely of these two elements, which means that the return to risk is the excess over the risk-free return.

Occasionally, an investment also yields an inframarginal return, which is a return above and beyond the market rate for risky investments. These arise from “special opportunit[ies] not generally available in the market” and are usually associated with “rents to ideas, managerial skill, or market power.” They can include unique returns to capital due to information asymmetries or imperfect markets, as well as returns to some combination of a person’s labor, ingenuity, and/or luck.²³²

Although distinguishing between inframarginal and market-rate returns is difficult, we need not do so. Mother—not Grandfather—should be credited for both whenever Mother has a choice about investing her inherited wealth. Any investment of Grandfather’s $10,000,000 would have triggered, at minimum, the risk-free rate of return and should be traced back to Grandfather’s bequest. Returns above and beyond the risk-free-rate of return, however, should be attributed to Mother.

The default rule should therefore be to attribute the risk-free rate of return—as measured by the average U.S. Treasury bond yield—to Grandfather’s investment. The best measure of this is the average yield on a U.S. Treasury Bond of comparable length. Imagine that Mother outlives Grandfather by 30 years. If so, the average rate of return for a 30-year bond should be imputed to Mother’s inheritance from Grandfather. Any “extra” wealth should be credited to Mother and treated as new, first-generation wealth.

Complications

The foregoing analysis assumes both that Mother has a choice about what to invest in, and that her investments are successful. But what if those assumptions are incorrect? Start with choice. Imagine that Grandfather bequeaths stock that skyrockets in value to a trust with an independent trustee over whom Mother has no control. Given that Mother has no say in how to invest the asset and assumes no risk herself, none of the stock’s value is attributable to her choices. The stock’s full value at her death should be credited to Grandfather. Moreover, we already have rules that identify when one has control over a trust; the Rignano tax could simply import the grantor trust rules.

Next let’s upend the assumption that Mother’s investments are uniformly successful. Imagine that Mother quickly squanders Grandfather’s fortune by investing his $10,000,000 in Blockbuster Video stock. She later, however, invests in a relatively unknown start-up called “Google,” parlaying a few thousand dollars into $10,000,000. How should Mother’s fortune be treated at her death?

Mother’s fortune should still be treated as inherited and traced back to Grandfather for three reasons (an approach favored by Rignano).²³³ First, Mother is able to leave Daughter $10,000,000 more than without Grandfather’s wealth. His bequest enables Mother to start at $10,000,000; lose $10,000,000; and nevertheless end at $10,000,000. Without the bequest, if Mother loses and re-earns $10,000,000, she ends at zero. Second, if we assume that Mother would have earned the risk-free rate of return when successfully investing Grandfather’s bequest, parity requires us to make the

same assumption even when the outcome is different. Either we assume that return or we do not.

Finally, ignoring Grandfather’s bequest ignores that money is fungible and creates incentives that undermine the goals of wealth taxation by essentially encouraging Mother to squander Grandfather’s bequest. Let’s say that Mother has an idea for a successful business that will earn her $15,000,000, and Mother also wants to spend $10,000,000 on a year-long first-class trip around the world. Compare two scenarios, Early Trip and Late Trip. In Late Trip, Mother saves Grandfather’s money and starts a business that earns $15,000,000 before taking the trip. The trip reduces her bank account from $25,000,000 to $15,000,000. Under the default rule established above, we’d use the risk-free rate of return to see what Grandfather’s wealth would have grown to. For the sake of illustration, let’s assume it would have grown to $14,000,000. If so, only $1,000,000 of Mother’s bequest to Daughter is treated as earned by Mother.

In contrast, imagine what happens if we use a rule that ignores Grandfather’s bequest if she spends it or invests it poorly. Mother can reduce her tax burden by travelling before earning her own money. In Early Trip, Mother spends Grandfather’s money on the trip and zeroes out her account. She then starts a business and earns $15,000,000, which she passes along to Daughter. If we ignore Grandfather’s bequest on the grounds that she spent it or wasted it, all her $15,000,000 wealth is treated as self-made.

Mother should not be treated differently depending on what she does with Grandfather’s money. Whether she spends it, invests it poorly, or invests it wisely, she had power over $10,000,000, and at her death, $10,000,000 (plus the risk-free-rate-of-return) should be credited back to Grandfather.

E. Tracing

A fifth issue—flagged by neither Rignano nor Halliday—is determining who receives inherited wealth as it moves downstream. This has two components, one normative and one administrative.

The Normative Question

Let’s start with the normative question. We’ve been using an example with one member in each generation for simplicity. Again, assume that Grandfather leaves Mother $10,000,000, but now imagine that Mother has not one but two children, Daughter and Son.

In applying the tax to Daughter and Son, how should we decide as a normative matter who receives Grandfather’s wealth, and who receives the wealth created by Mother? Ideally, we’d somehow allocate Grandfather’s wealth to each of them in proportion to how much wealth they actually receive from Mother. This would be possible if Mother does not make any lifetime gifts, instead re-transferring all of Grandfather’s wealth at her death. Lifetime gifts, however, render this impossible.

One option is to allocate Grandfather’s bequest pro rata among Daughter and Son by giving them each a $5,000,000 “taxable amount” that is essentially a mirror-image of existing exemptions (this represents the total amount of Grandfather’s wealth that should be taxed as a second transfer when Mother passes it along, divided by two since Mother has two children). Under this approach, transfers to each of them would be taxed until they reached $5,000,000; later transfers would be untaxed. This solution, however, has two problems. First, it undertaxes the family if Mother favors one child. Imagine that Mother does not earn her own wealth, and transfers all of Grandfather’s $10,000,000 to Daughter and none to Son. Under the pro rata apportionment approach, only $5,000,000 would be treated as second-generation. Second, assigning a per-capita amount at Grandfather’s death requires knowing who Grandfather’s bequest should be apportioned among—that is, who Mother is going to leave her wealth too—which may be unknowable at his death.

A better solution is a first-in-time approach that treats the first $10,000,000 received by either Daughter or Son as second-generation, regardless of how Mother splits $10,000,000 between them. This is essentially how the current system treats a donor’s lifetime exemption amount and allows Mother to allocate the tax burden via the timing of her transfers.

Administration

The next question is how one determines as an administrative matter, that a recipient of a gift or bequest has received wealth that has been inherited by the transferor. This requires more record-keeping than a traditional estate or inheritance tax, but not an insurmountable amount. And in fact, certain elements of this Article’s proposal exist in current estate and inheritance taxes in the U.S. and internationally.

Revisit Grandfather, Mother, and Daughter. As under current law, Grandfather’s executor will file a tax return at his death that shows the total amount of gratuitous transfers that Grandfather has made. To implement a Rignano tax, his executor would also make an election on that return to treat some or all of Grandfather’s wealth as first-generation, as well as recording to whom Grandfather left his wealth. Any wealth not elected by the executor will be treated entirely as a second-generation transfer. Absent malpractice, Grandfather’s executor will make the election. Mother, who receives Grandfather’s bequest, will also file a tax return upon receipt showing the bequest’s source and value, as well as indicating whether any assets are not under her investment control. Assuming Grandfather’s executor make the proper election, however, Mother will pay no tax.

These records enable us later to determine how much of any wealth that Mother later passes along should ultimately be traced back to Grandfather. When Mother makes a gift or bequest later, we need to know three things to calculate Daughter’s tax liability: the imputed value of Grandfather’s bequest to Mother at the time of Mother’s later transfer, the amount of that later transfer, and the value of any assets transferred from Grandfather to Mother over which Mother had no control.

We know the imputed value of Grandfather’s bequest by applying the risk-free rate of return to its value, as recorded on his and Mother’s tax return. This, of course, assumes Mother had investment control over the assets. If Grandfather also bequeathed assets to Mother over which she had no control, we’d determine both the imputed value of assets over which she control, and the current value of any assets over which she lacked control. This determines what dollar value of any transfers from Mother should be taxed to the recipients. Any excess will be treated as wealth created by Mother and not taxed.

This approach requires more record-keeping than under current law—namely, it requires both transferors and recipients to file returns, instead of just the transferor (in an estate tax) or just the recipient (in an inheritance tax). But the valuations required present no more difficulties than under current law. Transferors must already value assets at the time of a gift or bequest, and at times, formulas are used to impute such values based on current interest rates.

Two additional aspects of this approach are similarly used both in the U.S. and abroad. First, many inheritance tax systems tax recipients differently depending on from whom they inherit. (Generally, heirs who inherit from close relatives such as parents are treated more leniently than those who inherit from more distant relatives like cousins.). There is thus precedent for looking at the source of a gift or bequest when taxing the recipient.

Second, current law in the U.S. provides that in some circumstances, the tax consequences to a decedent turn on actions taken at the prior death of a spouse.²³⁴More specifically, the second spouse to die can use any of the first spouse’s unused exemption amount, so long as the first spouse’s executor made the proper election. The success of portability, as these rules are known, suggest that tying one person’s tax consequences to the actions of prior transferors is workable.

F. Transfers in Trust

The foregoing illustrations have used outright gifts and bequests. But many wealthy families transfer most of their wealth in trusts that last for several generations. For example, Grandfather may choose to create a trust that pays the income to Mother for her life, and at her death, distributes the corpus to Daughter. Applying a Rignano tax to transfers in trust raises additional questions. The first, which arises in any accessions tax proposal, is to determine when the taxable events occur. Note that for each trust beneficiary, there are potentially two important events—the date the tax is actually imposed, and the date the clock starts for valuation purposes for later transfers.

Remainder Interests

Let’s start with Daughter and her remainder interest. Should she be taxed at vesting, or at distribution?²³⁵ Most accessions tax proposals suggest distribution for administrative and valuation reasons.²³⁶ First, we do not know until distribution exactly how much Daughter receives. While we can often estimate the value of her remainder interest when Grandfather creates the trust based on current interest rates and Mother’s life expectancy, any figure is just that—an estimate. And for some trusts, additional valuation difficulties appear. Imagine that Grandfather’s trust was to Mother for life, and then to her children equally. Perhaps Daughter is the only living child at Grandfather’s death. But whether Mother has more children affects the share of the remainder Daughter will receive. Finally, many interests are subject to trustee discretion, as would be the case if the remainder interest in Grandfather’s trust passed to “Mother’s children in such proportions as the trustee determines to be in their best interests.” Second, until distribution, Daughter may not have liquid funds with which to pay the tax. Although some trust interests can be sold or borrowed against, many cannot.

These concerns apply with equal force to a Rignano tax. But where do normative considerations point, vesting or distribution? With a traditional accessions tax, one could argue that most (but not all) normative justifications suggest treating vesting as the taxable event. For example, if an accessions tax is designed to further welfarist principles, then vesting seems logical, as one’s welfare (from security, reputation, and the fungibility of money) increases upon vesting. Political influence likely starts accumulating at vesting, when politicians and PACs start courting the remainder beneficiary. And since money is fungible, a vested interest frees up other funds that can provide a head start when it comes to educational and economic opportunities. That said, Anne Alstott has argued that the choice/chance distinction counsels in favor of distribution if an accessions tax is designed to reflect equal opportunity concerns.

But a Rignano tax is not designed to further any single normative goal such as equality of opportunity or welfarism in isolation. Instead, it is designed to find a compromise among competing intuitions about wealth transfer taxation—even when those intuitions may seem “wrong” to tax theorists. To that end, some of the administrative considerations discussed above take on normative weight. Consider valuation. In theory, one could tax at vesting based on estimated values and then adjust at distribution to account for divergences from the estimate. But it is quite likely the public would react negatively to the taxation of undistributed yet vested interests, for the same reason the public reacts negatively to the possible taxation of unrealized gains. To many, it simply seems unfair to impose a tax when there has not yet been an event that provides liquidity, or when valuation is unclear. Given that one purpose of a Rignano tax is to make political headway where other inheritance taxes fail, the better course is to wait until distribution of remainder interests to impose the tax—that is, until we know exactly who gets exactly how much.

The same rule, with two exceptions, should apply when determining when Daughter’s clock starts ticking for purposes of valuing later growth for subsequent transfers. Daughter generally does not have control of the funds until distribution, and therefore none of their prior growth (or lack thereof) should be attributed to her to determine what part of subsequent transfers by Daughter stems from her own initiative or Grandfather’s wealth. The first exception would be if Daughter somehow had discretionary investment control of the assets during Mother’s income interest, in which case investment decisions could plausibly be attributed to her. The second is if Daughter could sell her remainder interest at vesting, in which case the decision to leave it invested in the trust should be attributed to her and any later distribution of wealth beyond the risk-free-rate of return should be deemed self-made.

Income Interests

What about income interests? Assume that Mother’s income interest has an estimated FMV of $1,000,000 at vesting based on the present value of its payment stream and is predicted to pay out $100,000 a year for the rest of Mother’s life. Or imagine that Daughter receives a secondary life estate instead of the corpus outright at Mother’s death. Should she be treated as receiving the inheritance all at once at vesting, or over time when she receives her annual income distribution? In theory, these are economically equivalent, assuming perfect information about interest rates and lifespans (just as the difference between taxing a remainder interest at vesting and distribution is).

The same considerations that apply to remainder interests should apply here as well. The normative considerations that justify a traditional accessions tax do not point clearly in one direction, while weighty valuation and liquidity concerns remain. The default should be that the taxable event, be it imposing tax or starting the clock for later valuation purposes, happens at distribution. Exceptions would be made where the beneficiary has control over investment assets or the ability to sell her income interest.

G. Transition Rules

A Rignano tax contains a unique transition issue. In the illustrations used throughout this Article, we have assumed that Grandfather was self-made. And in the example above, we know how much of Mother’s wealth to tax because Grandfather’s estate would have filed an election to treat his estate as first-generation wealth.

But what if Grandfather himself inherited some money, and was not completely self-made? How do we treat the first generation after a transition to a Rignano tax? Treating all existing wealth at the time of the tax’s imposition as self-made is unsatisfactory, for it essentially delays implementation of the tax for a generation and does not reflect reality. Instead, some existing wealth should be treated as self-made, and some should be considered second-generation wealth. Halliday and Rignano both acknowledge the need for a transition rule to determine that portion, with Rignano suggesting that one-third to one-half of current wealth should be treated as inherited.²³⁷ Fairly recent studies suggest that anywhere from 15% to 46% of current wealth is inherited. Although any number will be admittedly arbitrary, treating one-sixth to one-third of existing wealth as second-generation wealth seems reasonable.²³⁸

CONCLUSION

This Article has made the case for an inheritance tax system that—unlike our own—taxes old money more heavily than new. Specifically, it proposes completely exempting gifts and bequests of self-made wealth, but taxing heirs who receive re-transferred wealth. Although such a tax is more complex than our current system, the challenges are manageable and are well worth it.

Crucially, this proposal provides a way out of the enduring stalemate over taxing wealth. The estate tax has been the subject of passionate debate for decades, resulting in an ongoing state of political uncertainty. Rates and exemption levels have ping ponged back and forth for two decades, including a single year—2010—that had no estate tax at all. And although recent legislation ostensibly made the exemption’s expansion “permanent,” there is no reason a future Congress could not “permanently” shrink it again. Given the current political polarization, there is no doubt that questions about whether and how to tax wealth will continue to generate heated debate.

What makes this debate so intractable is not only that the public as a whole is divided on the issue of inheritance taxation, but that many individual Americans hold simultaneous beliefs about wealth, opportunity, desert, fairness, and family that seemingly contradict each other. Many of us, for example, have at least a sliver of sympathy for some of the claims of both supporters and opponents of the tax.

Yet our current system treats taxing wealth transfers as an all or nothing proposition, without acknowledging a key source of our seemingly contradictory beliefs: the finding that many of us silo beliefs about wealth, distinguishing among earned and inherited wealth. By harnessing this finding, as well as the insights of other recent psychological work on taxation, a Rignano tax thus reconciles the benefits of wealth transfer taxation with deeply held beliefs about fairness, desert, private property, and family. And by so doing, it offers an opportunity for a stable and lasting resolution to the debate over taxing inherited wealth.

98 S. Cal. L. Rev. 1439

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Miranda Perry Fleischer*

*Richard and Kaye Woltman Professor in Finance, The University of San Diego School of Law. For helpful feedback and suggestions, the author thanks Anne Alstott, Jordan Barry, Lily Batchelder, Heather Field, Dov Fox, David Gamage, Ari Glogower, Daniel Halliday, Shelly Layser, Ray Madoff, Shu-Yi Oie, Caley Petrucci, Jim Repetti, Diane Ring, Darien Shanske, and Mila Sohoni, as well as participants at the University of Virginia Tax Policy Workshop, the Boston College Law School/Tulane Law School Tax Roundtable, the Association of Mid-Level Tax Scholars Conference, the University of San Diego Colloquium Series, and the staff of the Southern California Law Review. Thanks to the University of San Diego Law Library and Carlisle Olson for invaluable research assistance.

Major Questions Avoidance and Anti-Avoidance

October 2025October 2025Daniel J. Hemel*

In recent years, the Supreme Court has articulated a new “major questions” doctrine that prescribes a heightened standard of judicial scrutiny for regulations that address questions of vast economic and political significance. This jurisprudential innovation incentivizes—indeed, practically invites—strategically minded agencies to engage in “major questions avoidance”: to modify their regulatory approaches in order to skirt the major questions doctrine’s consequences. This Article is the first to name the phenomenon of major questions avoidance and to develop a taxonomy of avoidance tactics. It identifies four broad categories of major questions avoidance: “slicing” a single rule into a series of smaller rules; “lumping” together regulations under different statutory authorities to achieve a common, far-reaching objective; “glossing” over a major rule in technocratic language that downplays its economic and political significance; and “bypassing” the rulemaking process via guidance documents, administrative adjudications, and enforcement actions. Agencies appear to be deploying various major questions avoidance tactics already—openly in some cases and subtly in others. Although each of these avoidance tactics is costly to pursue, agencies are likely to engage in major questions avoidance—at least some of the time—as long as the major questions doctrine remains a salient feature of the administrative law landscape.

The nascent phenomenon of major questions avoidance presents both normative and jurisprudential puzzles. Different normative theories of administrative state legitimacy lead to contrasting conclusions regarding the desirability of major questions avoidance. If major questions avoidance is a problem, courts could—in theory—try to solve it by developing new doctrines of “major questions anti-avoidance.” Yet these anti-avoidance doctrines will face their own set of logical and logistical challenges—challenges that underscore the limits of judicial power in the cat-and-mouse game between courts and strategically minded agencies. Ultimately, a clear conceptual mapping of major questions avoidance and anti-avoidance can shed new light not only on the major questions doctrine itself but also on the justifications for, constraints on, and adaptability of the modern administrative state.

Introduction

One of the first lessons that students learn in law school is the concept of “question size elasticity.” Law school instructors rarely (if ever) use the term “question size elasticity,” but they almost inevitably illustrate the concept starting on Day One. For example, when teaching Vosburg v. Putney,¹ the first case in many torts casebooks,² professors often divide the central question—whether intent to harm should be a required element of the tort of battery—into a series of sub-questions (for example, whether intent to harm should be a required element when the alleged battery occurs in a touch football game, or on a crowded subway, or—as in Vosburg—in a seventh-grade classroom).³ Going in the opposite direction, professors often show how a seemingly self-contained doctrinal question such as the question presented in Vosburg implicates much larger questions about the structure of society (for example, how to mediate between conflicting interests in economic efficiency and bodily autonomy). By the end of their 3L year, students may not remember the particulars of the cases that they read as 1Ls, but if they were paying even a modicum of attention, they will have learned how to slice a big question into lots of littler ones and how to transform a superficially small question into a much more expansive inquiry.

The concept of question size elasticity, applicable in many legal contexts,⁴ takes on particular relevance in the context of the “major questions” doctrine, possibly the most consequential new doctrine to emerge in U.S. administrative law so far this century.⁵ The doctrine—which prescribes a heightened standard of judicial scrutiny for agency rules that implicate questions of particular economic and political significance—played a central role in four blockbuster Supreme Court cases during the Biden presidency. These four decisions—in which the Court overturned a nearly nationwide eviction moratorium,⁶ struck down a COVID-19 vaccine mandate for more than 80 million U.S. workers,⁷ stripped the Environmental Protection Agency of authority to carry out its Clean Power Plan,⁸ and blocked the Department of Education from forgiving $430 billion in federal student debt⁹—affect broad swaths of the American population and American life.¹⁰ The doctrine continues to rear its head in dozens of lower court cases and is almost certain to return to the Supreme Court soon, likely leading to the invalidation of additional agency actions.¹¹

When applied to the major questions doctrine, the concept of question size elasticity generates a number of, well, major questions. First, as a predictive matter: if a major question can be split into a series of minor questions, will agencies seek to avoid the doctrine’s consequences by slicing what would otherwise be “major” rules into smaller bits and pieces? We might call this slicing method—along with other tactics to evade the major question doctrine’s reach—“major questions avoidance.” Second, as a normative matter: if some agencies do engage in major questions avoidance at least some of the time, should we, as citizens, applaud those agencies’ avoidance tactics? Put another way, is major questions avoidance a salutary phenomenon—either as a desirable “workaround”¹² to circumvent an otherwise undesirable doctrine or as exactly the sort of agency behavior that the major questions doctrine is supposed to incentivize? Or, to the contrary, is major questions avoidance a pernicious administrative tactic that agencies ought to eschew for the public good? And third, as a jurisprudential matter: to the extent that major questions avoidance is undesirable, how—if at all—should courts police the practice? Should courts construct a doctrine of major questions anti-avoidance in administrative law, just as courts have—for example—developed anti-avoidance doctrines to defend the integrity of federal tax law? And if so, what shape might a doctrine of major questions anti-avoidance take?

Rigorously thinking through the relationship between major questions avoidance and anti-avoidance can provide fresh perspectives on the major questions doctrine itself—and, more broadly, about the relationship between the judiciary and the administrative state. According to one view, well expressed by the legal scholar Blake Emerson, the Supreme Court’s invocation of the major questions doctrine “is not legal interpretation at all, but rather an exercise of raw political power.”¹³ In a similar vein, Josh Chafetz characterizes the major questions doctrine as a central element of what he calls “the new judicial power grab.”¹⁴ This Article—though agnostic about the desirability of the doctrine¹⁵—suggests another possible slant on the doctrine’s power implications. When we consider potential agency responses to the major questions doctrine—along with the enormous difficulties that courts will face in policing those workarounds—our takeaway may be that the doctrine, if a judicial power grab, is one with surprisingly infirm grip. In other words, the major questions doctrine—though cited by critics as a signal example of creeping “juristocracy”¹⁶—may, at the end of the day, reveal as much about judicial power’s limits as about its reach.

Part I of this Article provides a brief overview of the major questions doctrine and defines the concept of major questions avoidance. Part II considers whether, when, and why agencies may (or may not) choose to engage in major questions avoidance. Part III evaluates major questions avoidance from a normative perspective, showing how four different theories of the administrative state’s legitimacy lead to very different conclusions regarding major questions avoidance. Part IV looks forward to the next move in the chess game between agencies and courts, asking whether and how courts can construct a doctrine of major questions anti-avoidance. Along the way, the analysis highlights the difficulties that even an ideologically motivated judiciary will face if it seeks to prevent administrative agencies from resolving questions of vast economic and political significance.

I. The Major Questions Doctrine and Major Questions Avoidance

A. The Major Questions Doctrine(s)

For years, a popular parlor game among administrative law scholars involved counting the number of Chevron steps. As formulated by Justice Stevens in the 1984 case that gave the Chevron doctrine its name, judicial review of agency statutory interpretation is a two-step process: is the statute ambiguous (Step One) and, if so, has the agency adopted a “permissible construction of the statute” (Step Two)?¹⁷ Thomas Merrill and Kristin Hickman later argued that in practice, an additional step precedes Steps One and Two—Chevron “Step Zero”—at which courts determine whether an agency’s statutory interpretation is even eligible for Chevron deference.¹⁸ William Jordan interpreted the Supreme Court’s decision in United States v. Mead Corp.¹⁹ as “erect[ing] a new four step test to replace what we once knew as the Chevron two step.”²⁰ Matthew Stephenson and Adrian Vermeule responded with an article provocatively titled: “Chevron Has Only One Step.”²¹ Aaron Nielson and I argued that courts have created a half-step between Steps One and Two—what we called “Chevron Step One-and-a-Half.”²² Judges got in on the Chevron step-counting exercise, too.²³ Much fun was had by all.

With the Chevron doctrine now dead²⁴—or at least, “mostly dead”²⁵—counting the versions of the major questions doctrine is the newest administrative law numbers game. Cass Sunstein has argued that there are actually two major questions doctrines.²⁶ Jody Freeman and Matthew Stephenson count three different iterations.²⁷ Louis Capozzi writes that after West Virginia v. EPA, the 2022 Clean Power Plan case, “[t]here is one version of the major questions doctrine” still standing.²⁸

In all of its iterations, the major questions doctrine applies more searching judicial review to “agency decisions of vast ‘economic and political significance.’ ”²⁹ The various versions of the major questions doctrine differ in what that more searching review entails. In one version, the “majorness” of an agency’s assertion of statutory authority is a factor weighing against that reading.³⁰ This version of the major questions doctrine evokes Justice Scalia’s statement that Congress “does not . . . hide elephants in mouseholes”³¹—that an interpretation of a statute is less plausible if it ascribes extraordinary consequences to “vague terms or ancillary provisions.”³² In a second version, the majorness of an agency decision was a reason for courts to deny Chevron deference and interpret the relevant statute de novo. This version³³—which was on clearest display in the Supreme Court’s 2015 King v. Burwell decision³⁴—faces an uncertain future in a post-Chevron world.³⁵ In a third version, majorness is a reason to reject an agency’s interpretation of a statute unless Congress has issued a “clear statement” authorizing the agency’s assertion of power.³⁶ Freeman and Stephenson describe this third, “most aggressive” version of the major questions doctrine as a “novel judicial innovation” that had not been embraced by the Supreme Court until West Virginia v. EPA in 2022.³⁷

All of these versions require courts to somehow distinguish major questions from minor ones. None of the Supreme Court’s cases give concrete guidance on the ingredients of majorness, though they do provide potentially instructive examples. In cases where it has found a question to be major, the Court has cited—among other factors—the population of people affected,³⁸ the amount of money at stake,³⁹ the rule’s geographic reach,⁴⁰ and the number of sectors that could be affected by the agency’s interpretation.⁴¹ Other factors cited by the Court in major questions cases include whether the

rule finds precedent in past agency practice⁴² and whether the rule lies within the agency’s “sphere of expertise.”⁴³

The emphasis in major questions cases on the scope of the challenged regulation raises a possibility that scholarship has only begun to probe: if the majorness of an agency interpretation depends, in part, on the number of people, industries, or regions affected by the relevant rule or by the rule’s dollar-denominated costs, can an agency duck the major questions doctrine by slicing a larger rule into smaller bits and pieces?⁴⁴ Although the Court has never stipulated a specific population threshold, dollar threshold, or other numerical criterion for majorness, its major questions cases so far indicate—and common sense would suggest as well—that smaller-in-scope rules are less major than larger rules. And in the major questions doctrine era, rules that do not implicate the major questions doctrine would seem to have a better chance of surviving judicial scrutiny than rules that do.

B. Major Questions Avoidance

Just as the major questions doctrine comes in multiple flavors, major questions avoidance does too. Broadly, “major questions avoidance” refers to any tactic by which an agency changes the form or substance of its regulations in order to avoid the application of the major questions doctrine while achieving similar—though not necessarily identical—results. We can divide the broad category of major questions avoidance into at least four subcategories: “slicing,” “lumping,”⁴⁵ “glossing,” and “bypassing.” This Section considers each in turn.

“Slicing”

“Slicing” refers to a type of major questions avoidance in which an agency divides a larger rule into several smaller ones. For example, when the Centers for Disease Control and Prevention (“CDC”) restricted evictions during the COVID-19 crisis, the agency engaged in a form of temporal slicing: it issued a series of time-limited eviction prohibitions with durations of one,⁴⁶ two,⁴⁷ three,⁴⁸ and four⁴⁹ months. It was only after the fifth iteration of the CDC’s moratorium that the Supreme Court struck down the agency’s action, stating that “the sheer scope of the CDC’s claimed authority” required a clear authorization from Congress.⁵⁰

Time is not the only dimension along which agencies might “slice.” Agencies also might slice geographically. For example, instead of issuing a single rule for the entire country, the CDC could have promulgated a series of geographically limited, temporally overlapping moratoria with a combined effect approaching—if not equaling—a nationwide rule.⁵¹ Alternatively, agencies might slice by industry. For example, the Occupational Safety and Health Administration—instead of issuing a vaccination and testing rule for nearly all private employers with at least one hundred employees⁵²—could have issued a series of industry-specific rules that, in the aggregate, reach most or all sectors of the economy. The Environmental Protection Agency (“EPA”) arguably engaged in a form of industry slicing in early 2024 when it split its greenhouse gas emissions limits for existing coal-fired and natural gas-fired power plants into two rules—proceeding immediately with the rule for existing coal plants while stating that it would delay the rule for existing gas plants for at least several more months.⁵³

Slicing can theoretically result in total or partial avoidance of the major questions doctrine. Imagine, for example, that an agency wishes to apply a single rule, R, to twenty-six industries labeled A through Z. Total avoidance would occur if the agency issues twenty-six identical versions of rule R, each for a single industry, and all pursuant to the same statutory authority. Partial avoidance could occur if the agency modifies the rule for each industry such that rule R_a applies to industry A, R_b applies to industry B, and so on, all the way through R_z for industry Z, where all of these industry-specific rules are substantively similar but none are carbon copies of each other. Partial avoidance also might occur if the agency applies rule R to some subset of industries—perhaps to A, C, and E but not B, D, and F—with the upshot that a large slice but not all of the economy is covered by R. Thus, partial avoidance allows an agency to achieve much of—though not all of—what it would have sought to achieve in the absence of the major questions doctrine.

Concededly, the slicing subcategory is blurry around the edges. At what point does an agency’s response to the major questions doctrine cease to be “avoidance via slicing” and simply become a downsizing of the relevant rule? For example, if an agency wishes to impose rule R on industries A through Z but—fearing the major questions doctrine—settles on applying rule R to industry A alone, then the agency has not “avoided” the major questions doctrine at all; the agency has been thwarted. There is no clear line between A and Z at which frustration turns into partial avoidance. In this respect, major questions avoidance is as fuzzy as the majorness element of the major questions doctrine itself.

Even though slicing—at least when it results in partial avoidance—may be difficult to distinguish from frustration, slicing still can be a useful concept. For our purposes, “slicing” occurs when an agency issues a series of narrower rules pursuant to the same statutory authority. As we shall see, this feature—multiple rules pursuant to the same authority—serves to distinguish slicing from its closest cousin: “lumping.” The import of the distinction between slicing and lumping—though it may seem pedantic at this juncture—will become clearer when we consider potential judicial countertactics in Part IV.

“Lumping”

“Lumping” refers to a type of major questions avoidance in which an agency promulgates multiple rules pursuant to different statutory authorities to reproduce the effect of a single rule that, if it had been issued on its own, would or could have implicated the major questions doctrine. In other words, the agency “lumps” together several different regulations under different statutory delegations to achieve a common policy goal that—if pursued in a single rule under a single statutory authority—would have risen to the level of majorness. Lumping, as we will see, is a strategy that agencies undoubtedly pursued to circumvent the major questions doctrine under the Biden administration. Whether it will continue under the second Trump administration is—as of this writing in early 2025—not yet clear, as all except the most obvious cases of lumping will be very difficult to detect.

The clearest example of lumping from the Biden years is the Department of Education’s response to the Supreme Court decision to block the cancellation of $430 billion in student loan debt.⁵⁴ In its first stab at large-scale debt cancellation—the effort thwarted by the Court’s 2023 decision—the department relied on language in the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES Act”) authorizing the Secretary of Education to “waive or modify” the provisions of several federal student loan programs in order to protect recipients from the financial consequences of a “national emergency.”⁵⁵ The Department of Education argued that the COVID-19 pandemic—undoubtedly a national emergency—justified the invocation of its HEROES Act authority. Invoking the major questions doctrine, the Court held that “[h]owever broad the meaning of ‘waive or modify,’ that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.”⁵⁶

Thwarted in its effort to use the Department of Education’s “waive or modify” authority under the HEROES Act, the Biden administration vowed to find other statutory means of relieving student debt.⁵⁷ Just eleven months after the Supreme Court’s ruling, the administration announced that without relying on the HEROES Act, it had successfully canceled $167 billion in student debt for 4.75 million borrowers through a series of smaller rules under different statutory authorities.⁵⁸ Furthermore, the administration averred, there were still additional loan forgiveness measures to come. “President Biden will not stop fighting to cancel more student debt for as many Americans as possible,” the White House declared.⁵⁹ (Some of those measures were subsequently blocked by the Eighth Circuit.)⁶⁰

The Biden administration’s response to the Court’s Clean Power Plan decision offers a somewhat less overt example of major questions avoidance. Promulgated under President Obama and then rescinded during President Trump’s first term, the Clean Power Plan leveraged the EPA’s authority under section 111 of the Clean Air Act to set emissions standards at the level achievable through the “best system of emission reduction” that has been satisfactorily demonstrated.⁶¹ The EPA interpreted that language to authorize it to prescribe “generation shifting”: the nation’s electricity grids would be required to replace high-emitting coal plants with increased electricity generation from natural gas plants and renewable sources such as wind and solar.⁶² The “best system,” in other words, involved taking coal plants out of commission and substituting cleaner energy. The Court in West Virginia v. EPA rejected that reading of the statute: “As a matter of ‘definitional possibilities,’ generation shifting can be described as a ‘system,’ ” Chief Justice Roberts wrote for the Court, but “a vague statutory grant is not close to the sort of clear authorization required by our precedents” for a rule as “major” as the EPA’s.⁶³

In the wake of the West Virginia decision, the Biden administration—which had never actually tried to reinstate the Obama administration’s Clean Power Plan—pursued a series of coal-related rulemakings that did not rely on its predecessor’s contentious reading of section 111 as allowing “generation shifting.” These efforts culminated in April 2024 when the EPA Administrator announced a “suite of final rules” to reduce coal power plant emissions.⁶⁴ One of these rules, mentioned above in the context of slicing,⁶⁵ requires existing coal power plants to install carbon capture and storage systems—a more traditional interpretation of the “best system” language in section 111 than the Clean Power Plan.⁶⁶ A second rule, promulgated under section 112 of the Clean Air Act rather than section 111, sets new limits on emissions of mercury and other air toxics from coal facilities.⁶⁷ A third rule relies on the EPA’s authority under an entirely different statute—the Clean Water Act—to impose more stringent restrictions on water discharges from coal plants.⁶⁸ “Taken together,” observed a New York Times news analysis, “the regulations could deliver a death blow in the United States to coal.”⁶⁹ Put another way, the suite of regulations seeks to accomplish the same ultimate goal that the Clean Power Plan pursued: to force a shift away from coal and toward cleaner energy sources across the U.S. electric grid.⁷⁰

One factor that distinguishes the coal case from the student loan case is that in the student loan case, we know that the Department of Education adopted its lumping strategy in response to the major questions doctrine. We know that because the Department of Education tried to implement its student debt cancellation plan pursuant to the HEROES Act and then shifted to other statutory authorities only after the Supreme Court blocked the HEROES Act effort on major questions grounds. In the coal case, by contrast, we do not know whether, in the absence of the West Virginia decision, the Biden administration EPA would have updated its predecessor’s Clean Power Plan—adopting the same reading of section 111 as authorizing generation shifting—or whether in the first instance the Biden EPA would have promulgated a potpourri of rules under both the Clean Air Act and the Clean Water Act. What we can say is that when the major questions doctrine foreclosed one possible regulatory approach to coal, the Biden administration chose another.

As examples of lumping, the series of student debt cancellations and coal-focused EPA rules are arguably more alike than different. What makes them alike—and different from many other potential cases of lumping—is that they came after, not in anticipation of, a court ruling that blocked an alternate regulatory route on major questions grounds. In other cases, major questions avoidance via lumping may occur more subtly. One or more agencies may issue a series of rules in service of a common goal without first trying and failing to achieve the same objective through a larger rule pursuant to a single statutory authority. We might never know whether this series of rules reflects major questions avoidance because we cannot observe the counterfactual world without the major questions doctrine hanging overhead. Even the administration officials involved in the decision to pursue the series of rules might not be able to say definitively that the strategy reflects major questions avoidance: fear of the major questions doctrine may have been one among several factors favoring the more incremental approach, and no single policymaker may know for sure whether the major questions doctrine was outcome-determinative.

This last point regarding the difficulty of detecting lumping will become particularly significant to the analysis in Part IV, when we consider whether the courts can combat avoidance through a doctrine of major questions anti-avoidance. If major questions avoidance is difficult to detect, it also may be difficult to deter. Thus, while lumping may be a less obvious example of avoidance than slicing, the non-obviousness of lumping may turn out to be exactly what makes it such an effective avoidance strategy.

“Glossing”

Whereas slicing and lumping entail changes to the scope and substance of agency regulations, “glossing” affects rules only on the surface. Glossing occurs when agency officials or others within the administration describe a rule in terms tailored to downplay its majorness. Even before the Court’s quartet of major questions decisions starting in 2021, Blake Emerson observed that the major questions doctrine alters agencies’ rhetorical incentives. “Because the doctrine generally forbids agencies from making decisions of great economic and political significance,” Emerson wrote, “it encourages agencies to explain themselves in technocratic terms, even if significant questions of value are at issue.” Emerson added: “If agencies know that courts will decline to defer to them if they detect agency consideration of important questions of political value, they will invariably explain their interpretations of statutory ambiguities in a way that makes them appear purely technical.”⁷¹ They will, to use this Article’s terminology, “gloss.”

Although glossing is a potential response to the major questions doctrine, it may not be—as Emerson suggests—an “invariabl[e]” response. Jody Freeman and Matthew Stephenson agree with Emerson that “executive branch lawyers might well start advising agencies to make their rules seem smaller in scope, more incremental, and more technocratic, and suggesting that the President, agency ofﬁcials, and other supporters avoid talking about how these rules contribute to some larger policy agenda or help address some big national problem.”⁷² But Freeman and Stephenson add that “this advice goes against the grain, since most political appointees are eager to tout their regulatory accomplishments, and presidents want to demonstrate strong leadership by publicizing and claiming credit for what their agencies are doing.”⁷³ Whether the litigation-driven incentive to gloss will outweigh the political incentive to trumpet the majorness of a regulatory initiative may depend on—among other factors—the distance to the next election, the relative influence of an agency’s general counsel vis-à-vis other officials, and the career ambitions of the agency head who promulgates the relevant rule.

So far, we have seen some examples of glossing and some examples of administration officials issuing statements that defy the rhetorical incentives generated by the major questions doctrine. As a possible example of glossing, then-CDC Director Rochelle Walensky said on National Public Radio in August 2021—when announcing an additional two-month extension of the agency’s eviction moratorium—that the “new, tailored order” was focused specifically on “areas of highest transmission” that faced the “most public health challenges.”⁷⁴ In fact, the August 2021 moratorium—though slightly narrower in geographic scope than the previous nationwide eviction prohibition—still covered ninety percent of the U.S. population.⁷⁵ President Biden’s unbridled celebration of his administration’s student debt forgiveness efforts offers a contrary example of “anti-glossing”: an administration official—here, the highest-ranking administration official—explicitly emphasizing that an agency initiative represents an end–run around the major questions doctrine. “[T]he Supreme Court blocked us,” President Biden told an audience at a college in Wisconsin in May 2024, but “that didn’t stop us. . . . We continue to find alternative paths to reduce student debt payments . . . that are not challengeable.”⁷⁶ Republican Attorneys General from seven states did, indeed, seek to block those “alternative paths,” alleging that the Biden administration’s approach still violated the major questions doctrine.⁷⁷ And as noted, that challenge succeeded in delaying some—though not all—of the Biden administration’s student debt relief measures.⁷⁸

“Bypassing”

A fourth form of major questions anti-avoidance is “bypassing,” whereby an agency sidesteps the rulemaking process altogether by pursuing its objectives through guidance documents, administrative adjudications, or enforcement actions. I borrow the “bypass” label from Jennifer Nou, who applies it in a different context to refer to similar tactics—including guidance, adjudication, and enforcement—that agencies use to insulate themselves from review by the Office of Information and Regulatory Affairs within the White House Office of Management and Budget.⁷⁹ Here, the impetus to use guidance documents, adjudications, and enforcement actions is not to escape White House review but to reduce the probability that judicial review will result in invalidation under the major questions doctrine.

A possible example of bypassing is the Department of Health and Human Services’ response to the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned fifty years of precedent and withdrew constitutional protections for induced abortion.⁸⁰ Following that ruling, the Department of Health and Human Services issued a guidance document stating that the federal Emergency Medical Treatment and Labor Act (“EMTALA”), which applies to virtually all hospitals in the United States, requires physicians at covered hospitals to perform abortions in cases where abortion is necessary to resolve an emergency medical condition.⁸¹ The guidance added that “[w]hen a state law prohibits abortion and does not include an exception for the life of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”⁸² Unlike other interpretations of EMTALA that have taken the form of regulations,⁸³ the Department declined to initiate a rulemaking process with respect to its abortion interpretation.

Undeterred by the fact that the Department’s interpretation came in the form of a guidance document rather than a rule, the Texas Attorney General—along with two groups of pro-life physicians—challenged the interpretation in federal district court, arguing among other points that the Department’s guidance ran headlong into the major questions doctrine because it resolved an “issue of vast policy and political significance” without clear authorization from Congress.⁸⁴ The Department responded that unlike the rules struck down by courts in earlier major questions cases, the EMTALA guidance was “not final agency action subject to judicial review” because it merely interpreted the statute and did not determine the rights or obligations of any party.⁸⁵ Both the federal district court and the Fifth Circuit rejected the Department’s finality argument, concluding that the guidance document reflected a new policy with concrete legal consequences that had all the indicia of final agency action.⁸⁶ In compliance with the district court injunction, the Department is not enforcing its EMTALA guidance in the state of Texas or against members of the two pro-life physicians’ groups while it seeks Supreme Court review, though it is continuing to enforce the guidance throughout the rest of the country.⁸⁷

Time will tell whether bypass via guidance document can succeed in other circumstances. As Ronald Levin observes, case law regarding the rule/guidance distinction is in a state of “general disarray.”⁸⁸ We will return in Section II.C to the questions of when and whether bypass via guidance may be a viable legal strategy. Importantly, though, guidance is not the only means of effectuating bypass: agencies also can seek to skirt the major questions doctrine by pursuing their policy goals through enforcement actions.⁸⁹

One arguable example of bypass via enforcement is the Securities and Exchange Commission’s ongoing effort to police the cryptocurrency industry. The Commission has argued in a series of enforcement actions that certain cryptocurrency offerings are “securities” subject to the registration requirements of the Securities Act of 1933. Some commentators have argued that the Commission’s assertion of jurisdiction over the cryptocurrency industry violates the major questions doctrine because “the cryptocurrency market has vast economic and political significance” and the Commission “has not clearly been empowered by Congress to regulate that market.”⁹⁰ The cryptocurrency exchange Coinbase road-tested this argument in federal district court in the Southern District of New York, where Judge Katherine Polk Failla swatted it away. “Simply put, the cryptocurrency industry cannot compare with those other industries the Supreme Court has found to trigger the major questions doctrine,” Judge Failla wrote.⁹¹ Stymied in the Southern District of New York, cryptocurrency firms have recently filed suits in the Northern and Western Districts of Texas to challenge the Commission’s interpretation of the term “security.”⁹²

Whereas Judge Failla rejected Coinbase’s major questions argument on grounds specific to cryptocurrency and the structure of the securities laws, Todd Phillips and Beau Baumann have argued that the major questions doctrine should never apply to enforcement actions “when courts, not agencies, interpret statutes in the first instance.”⁹³ Phillips and Baumann acknowledge that a categorical exception from the major questions doctrine for agency enforcement actions in federal court would incentivize agencies to bypass the rulemaking process altogether—another instance of scholarship anticipating major questions avoidance, though the authors do not use that term.⁹⁴ Nonetheless, they argue, an enforcement action is “less major” than a legislative rule “because it does not sweep in an entire industry,”⁹⁵ and enforcement actions brought in federal court should lie outside the major questions doctrine’s “domain.”⁹⁶

If courts take up Phillips and Baumann’s suggestion, then bypass via enforcement is likely to become a frequent means of major questions avoidance, at least for agencies such as the Securities and Exchange Commission with authority to bring judicial enforcement actions on their own.⁹⁷ Even if courts do not carve out a categorical exception for enforcement actions, bypass via enforcement may become attractive to agencies seeking to reduce—though not eliminate—the risk of a major questions setback. But as we will see in the next part, the incentives for major questions avoidance—via bypass or via slicing, lumping, or glossing—sometimes can come into conflict with considerations of administrative efficiency, litigation strategy, and political advantage. Major questions avoidance will be an enticing option for agencies in some circumstances, but not in all.

II. The Benefits and Costs of Major Questions Avoidance

A. Benefits

On first glance, major questions avoidance may seem like it brings obvious benefits to an administration or agency seeking to advance a regulatory agenda, at least when a rule might otherwise run aground on the major question doctrine’s shoals. As a general matter, the stricter standard of scrutiny associated with the major questions doctrine—whether in the form of the elephants-in-the-mouseholes canon or the denial of Chevron deference or West Virginia v. EPA’s clear statement requirement—reduces a rule’s survival probability. As a result, major questions avoidance will typically bring a benefit—a lower chance of judicial reversal—that agency and administration officials must weigh against the costs of avoidance.

But before leaving the benefits side of the ledger, it is important to acknowledge that agency and administration officials may not always see major questions avoidance as a benefit. First, sometimes an agency may promulgate a rule not because officials at the agency or the White House think the rule is a good idea but because they are responding to political pressure from outside groups. For example, when the CDC announced a two-month extension to its eviction moratorium in August 2021, the Washington Post described the action as “a move that bent to intense pressure from liberal House Democrats.”⁹⁸ According to the Post, President Biden did not want to extend the moratorium—evidently because he believed that it overstepped the constitutional bounds on executive power—but “House Democrats responded angrily” to the administration’s position.⁹⁹ One progressive Democrat, Representative Cori Bush of Missouri, staged what the New York Times described as “a round-the-clock sit-in on the steps of the United States Capitol that galvanized a full-on progressive revolt,” camping there for four days and nights “in rain, cold and brutal summer heat.”¹⁰⁰ From the perspective of Biden administration officials, issuing the moratorium and then having it be struck down by the Supreme Court may have been exactly the outcome that they needed to get progressives off their backs.

Second, even when administration and agency officials support the policy behind a rule, they still may see a political benefit in having the rule be struck down by the courts—and especially by the Supreme Court. For example, in the case of student debt forgiveness, President Biden arguably stood to gain electorally from his clash with the Court’s conservatives. In a March 2024 poll, seventy percent of young voters, seventy-two percent of Black voters, and sixty-eight percent of Hispanic voters said that student debt cancellation was an “important” issue to them in the upcoming election.¹⁰¹ White House officials might have anticipated that the student debt issue would give a boost to President Biden in his then-anticipated rematch with Donald Trump, whose three appointees to the Supreme Court supplied critical votes against the debt relief rule. (That electoral rematch—of course—never ultimately happened.)

Third and finally, a court decision invoking the major questions doctrine may be useful to an administration that seeks to entrench its policy position. For example, the Supreme Court’s major questions holding in King v. Burwell—in which the Court ruled that the availability of premium tax credits on federally established health insurance exchanges was a “question of deep ‘economic and political significance’ ” beyond the discretion of the Internal Revenue Service¹⁰²—prevented the Trump administration from denying credits to exchange participants after the end of the Obama presidency. Notably, the version of the major questions doctrine that was applied in King v. Burwell simply denied Chevron deference to the Internal Revenue Service’s interpretation of the Affordable Care Act; the agency still could—and indeed did—persuade the Court that its interpretation of the statute was correct as a matter of first principles.¹⁰³ Still, the King v. Burwell episode illustrates the more general point that when agencies are thinking about threats to their regulatory policies, they are thinking about threats not only from the judiciary but also from the next administration.¹⁰⁴ For policy entrenchment reasons—as well as for the above-mentioned reasons related to interest group pressure and electoral opportunity—a judicial determination of majorness may not always be a net-negative for the current occupants of the executive branch.

B. Costs

Notwithstanding the caveats in the previous Section, high-ranking officials at agencies and across the administration generally will not want the courts to classify their regulatory initiatives as implicating the major questions doctrine. Still, they must weigh the benefits of major questions avoidance against the considerable costs. This Section focuses on three

especially significant costs of major questions avoidance: administrative burdens, litigation risks, and political costs.

Administrative Burdens

Major questions avoidance—especially when it takes the form of slicing or lumping—is likely to increase the total burden on agency officials responsible for drafting and promulgating rules. As Jennifer Nou and Jed Stiglitz observe, agencies incur certain “fixed production costs” whenever they issue a new rule: they must establish a docket, write language that goes into every rule, complete internal paperwork, and—for non-independent agencies—secure sign-off from the Office of Information and Regulatory Affairs within the White House.¹⁰⁵ Nou and Stiglitz note that “[t]he presence of fixed production costs generally encourages regulatory bundling”—in other words, encourages agencies to cover more ground in a single rule rather than splitting one rule into several.¹⁰⁶ Slicing—along with the related phenomenon of lumping (in which agencies issue a series of rules under different statutory authorities)—both cut against the incentive to minimize regulatory production costs.

The extent to which regulatory production costs deter avoidance will vary across agencies and across time. First, some agencies are much more adept at issuing rules than others. For example, according to data from Regulations.gov, the EPA issued 384 rules in 2023, while the Equal Employment Opportunity Commission (“EEOC”) issued only three (one of which was a technical amendment to correct a typographical error in an earlier rule and one of which adjusted certain figures for inflation).¹⁰⁷ For an agency that churns out rules like they are cars coming off an assembly line, the costs of a few additional rulemakings may be manageable. For an agency like the EEOC that exercises its rulemaking muscles on rare occasions, the prospect of issuing several rules rather than a single rule may be more daunting.

Second, administrative burden of bypass via enforcement is likely to depend on whether an agency has independent litigation authority. Some agencies—such as the Securities and Exchange Commission and the Consumer Financial Protection Bureau—have authority to initiate litigation in federal court on their own.¹⁰⁸ Others—such as the Department of Health and Human Services—must rely on the Justice Department to bring enforcement actions in federal court.¹⁰⁹ As Kirti Datla and Ricky Revesz note, “the Environmental Protection Agency has independent litigation authority over only a few discrete violations of the Toxic Substances Control Act.”¹¹⁰ Otherwise, the EPA’s ability to enforce the environmental laws in federal court depends on the cooperation of Justice Department attorneys.

Even when Justice Department attorneys are ideologically aligned with an agency’s policy agenda, bypass via enforcement is likely to be more burdensome for agencies without independent litigation authority. Every substantive filing in a case will require coordination—and potentially negotiation—between agency officials and Justice Department counterparts. As a result, we might hypothesize that agencies with independent litigation authority will be more likely to pursue bypass via enforcement than agencies without. Returning to the EPA/EEOC comparison, the EPA may be more likely to pursue slicing or lumping as an avoidance tactic because it is quite adept at issuing rules but lacks independent litigation authority; the EEOC may be more likely to pursue bypass via enforcement because it lacks the EPA’s well-practiced rulemaking infrastructure, but possesses independent litigation authority at the district court and circuit court level.¹¹¹

Finally, the administrative burden of avoidance is likely to be more salient near the end of a presidential term. This is because administrative burden results not only in a costlier regulatory process but also a slower process. The need for speed is greatest in an administration’s final days: executive branch turnover on January 20 of every fourth or eighth year means that regulatory projects not completed before that date are likely to die if the next administration does not support the effort, leading to the familiar phenomenon of “midnight rulemaking.”¹¹² Even when the President hands the baton to a successor of the same party—something that has happened outside the context of resignation or death only once since World War II—rulemaking activity may accelerate at an administration’s end. According to one account, the Reagan administration rushed in its waning days to finalize regulations that were deemed “too hot to handle” during the 1988 presidential campaign, “hoping to minimize the divisive controversy George Bush might otherwise face” if those issues were resolved before the general election or after Bush’s inauguration.¹¹³ If time is of the essence—either because the next administration has different policy priorities or because the current administration wants to shield a politically aligned successor from blowback—then major questions avoidance via slicing, lumping, or bypassing will be less viable strategies.

Speed also matters at an earlier juncture in an administration’s final year because of the Congressional Review Act, which allows Congress to block a regulation from taking effect by enacting a joint resolution.¹¹⁴ If a rule is finalized within the last sixty Senate “session” days or sixty House “legislative” days before Congress adjourns, the next Congress will have an opportunity to block the rule—and, importantly, the joint resolution will be immune from a Senate filibuster.¹¹⁵ Because a House “legislative day” can span multiple calendar days—and because both the House and Senate may adjourn earlier or later than expected—the deadline for finalizing a rule in order to avoid fast-track review by the next Congress is variable. In an election year, it may fall anywhere from the spring to the late summer.¹¹⁶

Joint resolutions of disapproval under the Congressional Review Act are still subject to presidential veto, so absent a change in administration or an extremely unpopular rule that is opposed by a veto-proof supermajority of Congress, the Congressional Review Act does not pose a significant threat to agency action in most years. But in the last year of a presidential administration, agencies have strong incentives to finalize controversial rules early enough that the next Congress and the next President cannot use the Congressional Review Act to undo the agencies’ handiwork. Almost certainly for that reason, April 2024—which was thought to be the last month before Biden administration rules became subject to the fast-track disapproval procedure in the next Congress—was “the busiest month on record” for major regulations, with the Office of Information and Regulatory Affairs reviewing more than eight times as many economically significant final rules as in the typical month.¹¹⁷ One might describe this phenomenon as “8 p.m. rulemaking”—rather than “midnight rulemaking”—because it occurs roughly five-sixths of the way through a President’s term (just as 8 p.m. strikes five-sixths of the way through the day). As the 8 o’clock hour approaches, the efficiency drawbacks of slicing and lumping increase because delay raises the risk of reversal under the Congressional Review Act. In that timeframe, agencies must weigh the benefits of major questions avoidance against the benefits of Congressional Review Act avoidance.

Litigation Risks

So far, the analysis in this Part has proceeded under the guiding assumption that major questions avoidance raises the probability that a regulation will survive judicial review. That assumption is probably accurate most of the time—but not all of the time. In at least three scenarios, certain forms of major questions avoidance may increase an agency’s litigation risk.

First, when an agency slices a single rule into several smaller rules issued sequentially, it may expose itself to challenges asserting that the distinctions it has drawn (for example, among industries or among regions) are arbitrary and capricious. As the D.C. Circuit put it, “[t]he great principle that like cases must receive like treatment” is “black letter administrative law.”¹¹⁸ A regulatory scheme may fail in court both because it is “overinclusive” and “underinclusive.”¹¹⁹ The merits of any underinclusivity challenge to a sliced rule will depend on the details, but it would be an overgeneralization to say that smaller rules always fare better in court than larger ones.

Second, to the extent that an agency engages in avoidance via glossing, it may open itself to attack under the State Farm doctrine, according to which a rule may be set aside as arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem.”¹²⁰ As the D.C. Circuit has put it, administrative law’s “reasoned decision-making” standard “requir[es] the agency to focus on the values served by its decision.”¹²¹ Courts will—on occasion—strike down an agency rule because the agency explained itself in entirely technical or legalistic terms when its decision required a substantive value judgment.¹²² To be sure, courts typically grade agency explanations on a generous curve: an agency usually won’t have to say all that much to satisfy State Farm.¹²³ But an agency that engages in hyperaggressive glossing—denying or significantly downplaying the economic, political, or ethical stakes of its decision—may leave itself vulnerable on the State Farm flank even as it seeks to shield itself from the major questions doctrine.

Finally, when an agency pursues bypass via guidance document, it may reduce the risk that its pronouncement will be deemed a final agency action subject to judicial review but raise the risk that the guidance document will be deemed a “legislative rule” in disguise that ought to have gone through a notice-and-comment process. Many more regulatory initiatives have failed on notice-and-comment grounds than on major questions grounds: as Ronald Levin observes, “the question of whether a supposedly informal pronouncement of an administrative agency is actually a rule that should have been adopted through notice-and-comment procedure may well be the single most frequently litigated and important issue of rulemaking procedure before the federal courts today.”¹²⁴ Note that the notice-and-comment concern does not apply to avoidance via slicing and lumping provided that the sliced or lumped-together rules each go through notice and comment. But, returning to the regulatory-production-costs point above, the rigamarole of multiple notice-and-comment procedures—necessary to insulate sliced and lumped-together rules against litigation risk—further raises the administrative burden of avoidance.

Political Costs

Along with its administrative burdens and litigation risks, major questions avoidance potentially comes with significant political drawbacks. Presidents want credit from voters for their regulatory achievements. Agency heads with ambitions for higher office want the world to notice their accomplishments. These outcomes are more likely when agency actions generate media attention, and the media is much more likely to cover rules that are larger in scope. Thus, even when the major questions doctrine discourages agencies from issuing broad rules, political incentives may push in the opposite direction.

The political costs of major questions avoidance will vary across time, across agency, and across subject matter. Electoral incentives are likely to be most salient in the last year of an administration—roughly around the same time that the costs of regulatory delay reach their peak. Meanwhile, career incentives do not affect all agency heads equally. Although it is often said that “every senator looks in the mirror and sees a future president,”¹²⁵ the CDC Director may look in the mirror and see no one other than the CDC Director. For some agency heads without further political ambitions, staying out of the spotlight may be an added benefit of major questions avoidance. Moreover, in some cases, an administration may—for electoral reasons—want to minimize attention to a controversial rule. For example, Biden administration officials may have been happy to regulate coal through a series of smaller rules because coal regulation—though popular among environmentalists—carries electoral risks in the swing state of Pennsylvania, the third largest coal-producing state in the country.¹²⁶ In those instances, major questions avoidance and electoral politics may work hand in hand.

Finally, agencies and administration officials may be able to capture both the benefits of major questions avoidance and the political benefits of larger regulatory initiatives by emphasizing the combined effect of several smaller rules. President Biden’s “anti-glossing” approach to student debt forgiveness is arguably a case in point: by touting the combined effect of several different student loan relief initiatives, President Biden successfully vaulted his series of smaller debt cancellations onto the front page of the New York Times and into the national spotlight.¹²⁷ Still, a drawback of major questions avoidance is that even when the combined effects of multiple rules, guidance documents, administrative adjudications, or enforcement actions are far-reaching, the consequences will typically be more difficult to explain to the average voter than a single sweeping rule. Thus, the political cost of major questions avoidance may be not only that avoidance leads to less attention but also that it engenders lower comprehension.

Ultimately, whether the political costs of major questions avoidance outweigh the benefits depends on a question much larger than the major questions doctrine itself: what motivates regulators? Perhaps counterintuitively, major questions avoidance may be more likely if the “public interest” theory of regulation applies: if regulators are “benevolent . . . , trustworthy, disinterested, and public-spirited experts who produce rules that ensure general economic efficiency and maximum welfare for society.”¹²⁸ If agency and administration officials respond more strongly to personal or partisan motives, then the political costs of major questions avoidance may outweigh the benefits from those officials’ self-interested perspective. To be sure, this conclusion comes with caveats. Regulators motivated by private interests may embrace avoidance if—for example—they are responsive to inducements from sophisticated interest groups that will appreciate the combined effects of several sliced or lumped rules. And public-interested regulators may eschew avoidance if they conclude—perhaps after weighing the considerations laid out in the next part—that major questions avoidance has a corrosive effect on the legitimacy of the administrative state.

III. Major Questions Avoidance and the Legitimacy of the Administrative State

So far our analysis has been primarily positive and predictive: how—and how often—will agencies modify their regulatory strategies to avoid the major questions doctrine? This Part shifts into a normative gear, asking what the phenomenon of major questions avoidance means for the legitimacy of the modern administrative state. Following Richard Fallon’s tripartite classification of legitimacy claims into sociological, legal, and moral categories, I use the term “legitimacy” here in the moral sense: “legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law.”¹²⁹ As we shall see, different theories of administrative state legitimacy lead to different implications for major questions avoidance. This Part focuses on four prominent theories, which vary based on the source to which they ascribe the administrative state’s legitimacy: (1) presidential legitimacy, (2) legislative legitimacy, (3) expert legitimacy, and (4) participatory legitimacy.

A. Presidential Legitimacy

Probably the most prominent normative theory of the administrative state in American legal thought today locates the source of agency legitimacy in the presidency.¹³⁰ The leading exponent of the presidential legitimacy theory in the legal academy—before she became Solicitor General and then Associate Justice of the Supreme Court—was Professor and Dean Elena Kagan.¹³¹ As then-Professor Kagan observed in an enormously influential 2001 Harvard Law Review article, “Presidents . . . are the only governmental officials elected by a national constituency in votes focused on general, rather than local, policy issues.”¹³² Paraphrasing the earlier work of administrative law scholar Jerry Mashaw, Kagan wrote that bureaucratic action thus “turns out to have a democratic pedigree purer even than Congress’s in our system of government.”¹³³

Kagan’s arguments regarding the democratic bona fides of presidential administration are both backward-looking and forward-looking. From a backward-looking perspective, “a President has won a national election,” and “this election, exactly because it was national in scope, probably focused on broad policy questions, conveying at least some information to the public about the future President’s attitude toward regulation.”¹³⁴ But in Kagan’s view, the “more important point is prospective.” As she puts it:

[B]ecause the President has a national constituency, he is likely to consider, in setting the direction of administrative policy on an ongoing basis, the preferences of the general public, rather than merely parochial interests. . . . In his first term, the desire for reelection alone provides a reason to do so, including through the adoption of policies favored by a majority of the voting public. And even in his second term, a President retains strong incentives to consider carefully the public’s views as to all manner of issues—incentives here related to his ambition for achievement, and beyond that for a chosen successor or historical legacy.¹³⁵

This theory of “presidential legitimacy”—whereby the exercise of executive power derives its democratic justification from the relationship between the President and “the People”—also bears implications for the relationship between the President and the agencies. According to Kagan’s theory of presidential legitimacy, “enhanced presidential control of administration serves democratic norms.”¹³⁶ This conclusion counsels for a more robust presidential role in regulatory decision-making.¹³⁷ It also favors a forthright acknowledgement that agency decisions emanate from the President. In Kagan’s words, “[t]o the extent that presidential supervision of agencies remains hidden from public scrutiny, the President will have greater freedom to play to parochial interests.”¹³⁸ By contrast, “[i]t is when presidential control of administrative action is most visible that it most will reflect presidential reliance on and responsiveness to broad public sentiment.”¹³⁹

From a presidential legitimacy perspective, the major questions doctrine seems 180-degrees backwards. Agency decisions of vast economic and political significance are the most likely to involve—and to be perceived by the public as emanating from—the President. Yet as Jodi Short and Jed Shugerman observe, the Court’s decisions in its major questions cases all focus on the role of “unaccountable bureaucrats”—a phenomenon that the authors describe as “presidential erasure.”¹⁴⁰ As Short and Shugerman write, the President “actively supported” and “took public responsibility for” each of the policies at issue in the Court’s major questions cases, and each of these policies provoked “vigorous” national debates.¹⁴¹ Nonetheless, “despite the special national democratic character of presidential involvement in policies that have been struck down in MQD cases, the President is virtually invisible in these opinions.”¹⁴²

Indeed, from a presidential legitimacy perspective, it is arguably “minor questions,” not major ones, that ought to trigger the most stringent judicial scrutiny.¹⁴³ Regulations that address minor questions are the least likely to reach the President’s desk, least likely to generate media coverage, and least likely to swing votes in a general election. Those rules are probably the most likely to advance the private objectives of special interest groups rather than the greater good of the public at large. Yet under current doctrine, regulations that address minor questions escape the searching judicial review that applies to high-profile rules that already have been approved by the President and are likely to be vetted by voters.

Given that the major questions doctrine makes little sense from a presidential legitimacy perspective, one might think that adherents to the presidential legitimacy theory would embrace major questions avoidance. As Daniel Farber, Jonathan Gould, and Matthew Stephenson argue, “if a legal rule produces undesirable effects, a workaround will generally be a welcome corrective.”¹⁴⁴ Major questions avoidance offers a possible exception to this general rule. Sliced rules under the same statutory authority, smaller rules under different statutory authorities, guidance documents, administrative adjudications, and enforcement actions all come with the democratic disadvantages of “minor questions”: they are less likely to reach the presidential level and less likely to garner media and voter attention. As Freeman and Stephenson write, “[i]f agencies downplay the real reasons for their rules, segment actions to make them seem more innocuous, or try to portray significant policy changes as technocratic, it becomes more difficult for the public to know what the executive branch is doing (and why), and therefore harder to hold the President to account for it.”¹⁴⁵ Thus, while the major questions doctrine is undesirable from a presidential legitimacy perspective, major questions avoidance is also undesirable from a presidential legitimacy perspective. Indeed, major questions avoidance may be particularly pernicious because—in Freeman and Stephenson’s telling—it redounds to the advantage of “[s]ophisticated, well-organized interest groups,” who are “more likely than ordinary citizens to understand how a collection of seemingly technocratic, incremental regulations contribute to some larger policy agenda.”¹⁴⁶ For presidential legitimacy theorists who value presidential administration precisely because it makes agencies accountable to a national electorate, major questions avoidance may be a cure even worse than the disease.

B. Legislative Legitimacy

Whereas the presidential legitimacy account locates the justification for administrative power in the executive (in other words, Article II), the legislative legitimacy account shifts focus to Article I: Congress. Members of the House and—for the last century¹⁴⁷—the Senate are the only national officials who are elected directly by the people. Ordinary citizens face a much higher chance of having their concerns heard by their Congressmember or home-state Senators than by the President. And, of course, the Constitution assigns all lawmaking powers to Congress¹⁴⁸—a fact that matters more to formalists than to functionalists but still may matter to functionalists who see some value in achieving “fit” between the constitutional framework and the practical reality of the modern administrative state.

The major questions doctrine fares better from a legislative legitimacy perspective than from a presidential legitimacy perspective. Given the scope and complexity of a modern state, it would be impossible for the legislature to weigh in on every policy choice, but policy choices of vast economic and political significance should be made by officials who are accountable to voters through direct elections—or so the argument goes. Risk-averse lawmakers who are concerned about their own reelection may be tempted to pass the buck for controversial decisions to administrative agencies,¹⁴⁹ but the major questions doctrine prevents legislators from sloughing off responsibility for those choices. Seen in this light, the major questions doctrine reflects the not-altogether-unreasonable proposition that Congressmembers must not be allowed to escape responsibility for important and controversial questions of climate change, public health, student debt, and so on—or if Congressmembers do pass the buck, they should have to fess up to it.

But while the legislative legitimacy theory leads to greater sympathy toward the major questions doctrine, it also—like the presidential legitimacy theory—engenders antipathy toward major questions avoidance. Sliced rules, lumped-together rules, guidance documents, administrative adjudications, and enforcement actions are not only more likely to escape presidential attention but also more likely to evade legislative oversight. Congressional committee hearings are an important mechanism through which the legislature regulates the administrative state: when members of the House and Senate have questions about an agency’s policies or performance, they can summon agency officials to appear before committees and—if dissatisfied with the officials’ responses—can restrict or condition funding, hold up appointments, or potentially amend the relevant statutes.¹⁵⁰ But these accountability mechanisms are less likely to operate when incremental regulatory actions fly below Congress’s radar.

From a legislative legitimacy perspective, then, the relationship between the major questions doctrine and major questions avoidance conforms to the general relationship between first-order rules and workarounds identified by Farber et al.: when the first-order rule (here, the major questions doctrine) “tends to produce desirable effects,” then “a workaround will generally be undesirable.”¹⁵¹ In this case, though, the undesirability of the workaround also calls into question the wisdom of the first-order rule. Insofar as the major questions doctrine results in agencies effectuating their policies through incremental regulations, guidance documents, administrative adjudications, and enforcement actions that escape legislative oversight, the upshot may be that the House and Senate will exert even less influence over the questions of vast economic and political significance that—according to legislative legitimacy theorists—ought to remain within the province of Congress. Thus, for legislative legitimacy theorists who are sympathetic to the major questions doctrine ab initio, the possibility of major questions avoidance should lead to reconsideration—and perhaps revision—of that initial view.

C. Expert Legitimacy

A third normative theory of the administrative state—which emerges most clearly in the academic writing of former Supreme Court Justice Stephen Breyer¹⁵²—focuses on the role of expertise as a legitimating force. In Breyer’s view, neither the public nor Congress is well-suited to understand and respond to health and safety risks.¹⁵³ For Breyer, the only hope for effective risk regulation lies with an expert bureaucracy. As he put it in Breaking the Vicious Circle, his last book on administrative law before joining the Supreme Court:

A bureaucracy’s rationalizing tendencies match the need for consistency through system-building and prioritizing; a bureaucracy’s use of expertise matches the need for technically related regulatory improvement; a bureaucracy’s insulation matches the need for protection from the vicissitudes of public opinion based on a single substance or on a single issue; and a successful bureaucracy can begin to build public confidence in its systems, thereby making its results more authoritative.¹⁵⁴

According to this view, the justification for the administrative state’s claim to authority rests not only in the technical qualifications of individual bureaucrats but also in the institutional structure through which bureaucratic expertise is developed and deployed.

Some version of the major questions doctrine might be justifiable under an expert legitimacy account. Indeed, the doctrine’s name traces back to a line in a 1986 law review article by then-First Circuit Judge Breyer: “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.”¹⁵⁵ Judge Breyer made this point in the context of Chevron and congressional intent: a statutory ambiguity is less likely to reflect an implicit delegation to an agency when the relevant issue is major.¹⁵⁶ But the major questions doctrine arguably also fits within Breyer’s larger theory of expert legitimacy. If an issue is non-technical—if it implicates substantive value judgments with respect to which expert agencies enjoy no particular advantage—then the case for shifting authority from Congress to the bureaucracy is relatively weak. The major questions doctrine potentially serves to sort between the issues on which Congress can be trusted to channel public values and the issues that require depoliticized bureaucratic management.

An expert legitimacy version of the major questions doctrine might differ from the version adopted by the current Court. Rather than emphasizing the economic or political significance of an issue, the expert legitimacy version might focus on whether the relevant regulation implicates the agency’s experience and expertise. Framed this way, some of the Court’s major questions decisions might be better understood as what Jody Freeman has called “wrong agency” cases: cases in which the Court denies deference to an agency because the regulation at issue lies within a different agency’s bailiwick.¹⁵⁷ Moreover, adherents to the expert legitimacy account might conclude that some of the Court’s major questions cases were wrongly decided on the facts.¹⁵⁸ But the major questions doctrine is not as anathema

from an expert legitimacy perspective as it might be from a presidential legitimacy perspective.

What about major questions avoidance? The possibility that agencies might split their rules into smaller pieces that fly below the radar of the President and Congress is less disturbing from an expert legitimacy perspective than from a presidential or legislative legitimacy perspective. As Jody Freeman and Adrian Vermeule observe, the Court’s decision in Massachusetts v. EPA,¹⁵⁹ arguably the jurisprudential apogee of expert legitimacy theory, is motivated by a concern about White House meddling in agency scientific judgments.¹⁶⁰ For expert legitimacy theorists, keeping certain regulatory issues off the President’s desk is a desirable feature, not a bug, of major questions avoidance. So, too, with respect to Congress: “Congress is highly responsive to public opinion, as it ought to be,” Breyer wrote in Breaking the Vicious Circle.¹⁶¹ “This means, however, that if the public finds it difficult to order risk priorities, Congress is also likely to find it difficult.”¹⁶² At least for risk regulation decisions such as the choices related to cigarettes, climate change, and COVID-19 transmission at issue in some of the Court’s major questions cases, major questions avoidance—insofar as it also leads to avoidance of presidential and congressional oversight—is not an entirely unwelcome outcome.

From an expert legitimacy perspective, major questions avoidance may bring ancillary benefits beyond simply keeping certain issues away from the President and Congress. When an agency slices a broad rule R into a series of smaller rules R_a, R_b, R_c, and so on for industries A, B, C, and so forth, the agency may be more likely to leverage industry-specific expertise—from its own ranks or from the ranks of other agencies—in crafting each of the smaller rules. Drafting a regulation for a single industry focuses the bureaucratic apparatus on the particular characteristics of that industry—characteristics that might be ignored in an omnibus rulemaking. Moreover, if the agency proceeds sequentially—for example, promulgating rule R_a for industry A before it applies rule R_b to industry B—then the agency may gain on-the-ground knowledge from its experience with industry A that allows it to design a better rule for industry B. And by the time the agency reaches industry Z, cumulative knowledge from earlier efforts may allow the agency to craft a significantly superior regulatory regime.

This conclusion comes with qualifications. First, the types of rules to which an expert legitimacy theorist may wish to apply the major questions doctrine—nontechnical rules of vast economic and political significance—are not the same rules that they may wish to see sliced into a series of sub-rules. From an expert legitimacy perspective, major questions avoidance is most beneficial with respect to technical regulations that are likely to escape the major questions doctrine in the first place. And second, the benefits of slicing from an expert legitimacy perspective do not necessarily carry over to other forms of avoidance. For example, expert legitimacy theorists might not welcome bypass via enforcement if enforcement shifts influence toward generalist litigators in the agency’s enforcement division or at the Justice Department. In those instances, major questions avoidance—rather than empowering subject-matter experts within an agency—may relegate them to the regulatory sidelines.

D. Participatory Legitimacy

A fourth normative theory of the administrative state locates the legitimacy of agency authority in public participation. This theory of participatory legitimacy draws inspiration from the work of John Dewey, a prominent figure in early twentieth century pragmatist and progressive thought. In Dewey’s words:

No government by experts in which the masses do not have the chance to inform the experts as to their needs can be anything but an oligarchy managed in the interests of the few. And the enlightenment must proceed in ways which force the administrative specialists to take account of the needs.¹⁶³

Blake Emerson, the leading exponent of participatory legitimacy theory in the American legal academy today, has identified elements of Dewey’s vision across the modern administrative state. According to Emerson, the notice-and-comment process “institutionalizes the Progressive concern for public participation in agency policymaking.”¹⁶⁴ As Emerson continues, “Courts then police this process to ensure that agencies draw reasonable conclusions from the comments they receive, address all significant comments, and ensure that all major policy choices are sufficiently ventilated.”¹⁶⁵ The result is democratic legitimation of a different sort from what is contemplated by Kagan’s presidentialist account—a form of democratic legitimation that depends less on votes than on voice.

For Emerson, both the major questions doctrine and major questions avoidance are normatively problematic. “The problem with the [major questions] doctrine,” Emerson writes, is “that it discounts and short-circuits rational public deliberation between administrative officials and the public at large.”¹⁶⁶ The problem with major questions avoidance is even more acute. In particular, Emerson anticipates that the doctrine will lead agencies to gloss—to explain their decisions on questions of vast economic and political significance in highly technical terms. “This retreat into technocracy will further imperil democratic transparency,” according to Emerson, “because important value choices will be kept from public view, and dressed up in the supposedly neutral language of expertise.”¹⁶⁷

Participatory legitimacy theory—though it takes a dim view of glossing—may reach different normative conclusions regarding other avoidance strategies. Arguably, participatory legitimacy theorists should welcome slicing. From a participatory legitimacy perspective, smaller rules may be preferable to larger rules. While individuals have the formal opportunity to participate in the notice-and-comment process for all rules regardless of scope, any single individual’s voice is more likely to be heard in a smaller rulemaking than a larger rulemaking, since in the latter case, hundreds of thousands of other individual and organizational commenters are likely to drown out a lone voice. This participatory legitimacy argument for smaller rules runs parallel to the classic argument in the federalism literature for smaller jurisdictions: that “thicker forms of participation” such as contacting officials and attending civic meetings increase as jurisdictional size decreases.¹⁶⁸ On this account, the problem with major rules—like the problem with national governments—is that their scope is too broad, whether in subject-matter or geographic terms, to facilitate efficacious individual participation in their design.

Not all participatory legitimacy theorists are likely to be convinced by this argument, and this argument does not apply to all other forms of major questions avoidance. A possible participatory benefit of larger rules is that they are more likely to generate media coverage and debate, facilitating the “value-oriented process of public engagement” that, per Emerson, is key to participatory legitimation.¹⁶⁹ The benefit of greater opportunities for individual voice in the small-rule context must be weighed against the benefit of greater public attention for larger rules. Moreover, the tentative argument for slicing on participatory legitimacy grounds does not apply to bypass: guidance documents—if they do not go through notice-and-comment—as well as administrative adjudications and enforcement actions deprive the public of the participatory opportunities that notice-and-comment rulemaking allows. So, participatory legitimacy theory’s verdict on both the major questions doctrine and major questions avoidance appears to be mixed: a doctrine that incentivizes agencies to slice their larger rules into smaller pieces may yield some participatory benefits, but other responses to the major questions doctrine generate participatory costs. The justification for the first-order rule may thus depend on which workaround predominates.

***

Summing up so far: We have sought in this Part to answer a relatively narrow normative question: is major questions avoidance desirable? Attempting to answer that narrow question requires a broader normative theory of administrative state legitimacy. Different normative theories of administrative state legitimacy bear very different implications both for the major questions doctrine and for major questions avoidance. Moreover, thinking through the phenomenon of major questions avoidance from multiple normative perspectives yields fresh insights regarding the relationship between first-order rules and workarounds in public law.

The next (and final) Part shifts focus from the administrative state to the judicial branch: how should courts respond to major questions avoidance? For presidential legitimacy theorists, the answer is easy: the major questions doctrine should be eliminated, in which case we would not need to worry about major questions avoidance. Meanwhile, expert legitimacy theorists and participatory legitimacy theorists may not necessarily see major questions avoidance as a problem to be solved—at least when avoidance takes the form of slicing (and in a similar vein, lumping). But for legislative legitimacy theorists, major questions avoidance poses a genuine dilemma: avoidance has the potential to undermine the benefits that legislative legitimacy theorists ascribe to the major questions doctrine. Indeed, the major questions doctrine—to the extent that it incentivizes avoidance—may be counterproductive to legislative legitimacy theory’s larger goals. Yet, as we will see in the next part, crafting an effective judicial response to major questions avoidance will prove to be a Herculean—and perhaps Sisyphean—challenge.

IV. Major Questions Anti-Avoidance

Anti-avoidance rules abound in American law. For example, the Bank Secrecy Act’s anti-avoidance rule prohibits individuals from splitting larger cash transactions into smaller ones to evade the Act’s $10,000 reporting threshold—a practice colloquially known as “smurfing.”¹⁷⁰ Anti-avoidance rules in bankruptcy law such as the fraudulent conveyance and fraudulent transfer provisions prevent debtors from evading creditors’ efforts to enforce valid claims.¹⁷¹ Tax law—in particular—is replete with anti-avoidance rules, including the economic substance doctrine,¹⁷² the substance-over-form doctrine,¹⁷³ and the step transaction doctrine.¹⁷⁴

Courts typically apply anti-avoidance rules ex post—after all, the relevant avoidance actions have occurred. For example, under the step transaction doctrine, a court or the IRS will look retrospectively and wholistically at a series of completed steps and assess the federal tax consequences based “on a realistic view of the entire transaction.”¹⁷⁵ Theoretically, a major questions anti-avoidance rule could be applied ex post or ex ante. In the ex post version, the court would consider whether sequential regulatory actions, taken together, resolve a question of vast economic and political significance. In the ex ante version, the court would seek to intervene at the beginning of the sequence. As we shall see, both the ex ante and ex post versions lie within the bounds of imagination, but courts that seek to instantiate either strategy in the real world will encounter formidable challenges.

A. Ex Ante Anti-Avoidance

Ex ante anti-avoidance is easiest to conceptualize in the context of slicing. Imagine that an agency applies rule R_a to industry A and that the single-industry rule would not itself trigger the major questions doctrine. Now imagine that the same statutory theory that justifies the application of rule R_a to industry A also would authorize the application of R_b to industry B, R_c to industry C, and so on, all the way to industry Z, and that rules R_a through R_z would have a combined effect of vast economic or political significance. An ex ante version of major questions anti-avoidance would allow a regulated party in industry A to challenge rule R_a on major questions grounds, even though the sequence of rules might not cross the majorness threshold until much later down the line.

An ex ante version of major questions anti-avoidance would encounter serious difficulties in practice. First, the ex ante version would require courts to anticipate all—or at least many—of the possible regulations that follow logically from the statutory interpretation that justifies R_a. Only then could courts begin to evaluate whether these regulations, considered cumulatively, rise to the level of majorness. Many commentators have observed that this latter step—the determination of majorness—is itself an unmanageable inquiry.¹⁷⁶ As Ronald Levin writes, “criticisms of this sort should be taken with a grain of salt” because “[m]any administrative law doctrines implicate judgment calls,” but “[i]n this instance,” the manageability critique “is well founded.”¹⁷⁷ An ex ante major questions avoidance doctrine would be doubly difficult from a judicial manageability perspective—perhaps much more than doubly, because the first step (conjuring up regulations that do not yet exist) places a much heavier tax on the judicial imagination than determining whether an already-existing regulation implicates a major question. The difficulty is especially daunting when avoidance takes the form of lumping rather than splitting: judges will have to imagine not only the possible applications of a single statute but also possible similar uses of other statutes that the agency has not yet invoked.

To be sure, a court that is dead set on advancing a deregulatory agenda may be tempted to test out an ex ante anti-avoidance doctrine anyway. But judges—even deeply ideological judges—still usually assign some weight to other values, such as predictability and judicial economy. Even for judges with strong conservative or libertarian leanings, an unpredictable and unmanageable ex ante avoidance doctrine may prove to be a game not worth the candle.

Along with judges, regulated parties may shy away from an ex ante version of major questions anti-avoidance. Consider the dilemma facing a regulated party challenging the application of rule R_a to industry A. To prevail on an ex ante anti-avoidance theory, the challenger would have to make two showings: (1) that the same statutory interpretation that justifies the application of rule R_a to industry A also would justify the application of R_b to industry B, R_c to industry C, all the way through R_z for industry Z; and (2) that rules R_a through R_z rise to the level of majorness when assessed in the aggregate. If the challenger wins at the first step but not the second—if the court (1) agrees with the challenger that the agency’s authority to apply rule R_a to industry A also implies its power to promulgate similar rules for B through Z but (2) disagrees with the challenger’s claim that the resulting regulatory bundle would reach the majorness threshold—then the challenger will have blazed a path for much more extensive regulation in the future. And given how amorphous the majorness standard is,¹⁷⁸ litigants can rarely be confident at the outset of the first step that they will prevail if they reach step two.

Granted, a firm in industry A may not care about throwing its counterparts in industries B through Z under the bus. The calculus could change, though, if the firm is a multi-sector conglomerate with subsidiaries not only in industry A but also sprinkled across the rest of the alphabet. Likewise, a firm may be reluctant to press an ex ante avoidance argument if A, B, C, and so forth—instead of representing different industries—represent different products made by the same factory, different pollutants emitted by the same facility, or different trade practices of the same company. In those cases, winning a half-victory in an ex ante anti-avoidance case amounts to scoring on one’s own goal.

None of this is to say that litigants will never raise ex ante anti-avoidance arguments or that these arguments will never succeed. At least debatably, Utility Air Regulatory Group v. EPA presents a real-world example of ex ante anti-avoidance. In that case, the EPA argued that the Clean Air Act authorized it to regulate carbon dioxide and other greenhouse gas emissions from stationary sources that release 100,000 tons or more of carbon dioxide equivalent units each year.¹⁷⁹ The Supreme Court, in a majority opinion by Justice Scalia, observed that the same statutory theory would allow—indeed, would require—the EPA to regulate emissions from units that release just 100 to 250 tons of carbon dioxide equivalent units each year, which would sweep in “millions[] of small sources nationwide.”¹⁸⁰ The Court held that the more expansive rule would trigger the major questions doctrine even though the EPA had not yet (and probably never would) assert such far-reaching authority. “EPA’s interpretation . . . would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization,” the Court stated.¹⁸¹ “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ”¹⁸²

Utility Air is an unusual case. There, the EPA explicitly acknowledged that its statutory interpretation would open the door to the regulation of millions more facilities.¹⁸³ In other words, the agency connected the dots from Rule R_a to R_z itself. Utility Air thus did not require litigants to make the highly risky move of arguing for a more expansive understanding of an agency’s authority, nor did it require courts to embark on an unguided imaginative journey into the land of regulatory hypotheticals. These unusual features of Utility Air help to account for the willingness of industry litigants and Justices to travel down the ex ante anti-avoidance path. In other cases, the difficulties of ex ante anti-avoidance from both a judicial-management and litigation-strategy perspective are likely to encourage a greater emphasis on the ex post alternative.¹⁸⁴

B. Ex Post Anti-Avoidance

Whereas ex ante anti-avoidance requires a court to anticipate what future regulations might follow from an agency’s interpretation of a statute, ex post anti-avoidance allows courts to adopt a wait-and-see approach. Consider again the example of an agency sequentially applying a series of rules (R_a, R_b, R_c, and so forth) to different industries. Ex post anti-avoidance would let a litigant challenge a later rule in the sequence (say, R_z) on the ground that rules R_a through R_z—in combination—trigger the major questions doctrine. Thus, ex post anti-avoidance averts two of the major difficulties facing ex ante anti-avoidance: (1) ex post anti-avoidance does not require litigants to argue for a more expansive understanding of agency authority, and (2) ex post anti-avoidance does not require courts to conjure up rules that do not yet exist.

For these reasons, major questions anti-avoidance—to the extent that it ever takes shape—is likelier to crystallize in ex post rather than ex ante form. Still, ex post anti-avoidance encounters difficulties of its own. The first is jurisdictional: even if a court concludes on a challenge to rule R_z that the combination of rules R_a through R_z trigger the major questions doctrine, regulated actors in industry A may not be party to the case involving Z. Moreover, the court’s anti-avoidance decision in the Z case may have uncertain implications for A, B, and C, as the agency may have additional area-specific rationales for its rules in those industries that require individualized adjudication. Thus, the class action mechanism may be a poor fit for ex post anti-avoidance cases,¹⁸⁵ requiring a flood of follow-on cases in order to wipe the regulatory slate clean.

Aside from the jurisdictional challenges (which may turn into docket management challenges if an ex post anti-avoidance decision for industry Z sets off a deluge of follow-on suits from regulated parties subject to earlier rules in the sequence), ex post anti-avoidance confronts courts with the challenge of determining which rules are sufficiently similar that they should be considered as part of the aggregate that is analyzed for majorness. Not all regulatory sequences will announce themselves as clearly as the alphabetical examples in this Article. And the aggregation challenge will prove particularly burdensome in the lumping context, where aggregation requires a comparison of regulations promulgated under different statutory authorities. Granted, courts make difficult determinations of similarity in other settings—ranging from anti-discrimination law to antitrust law—though, in many of those settings, courts struggle with the similarity inquiry.¹⁸⁶ What we can say with confidence is that while ex post avoidance may not be impossible, it will place new doctrinal-development demands on the judiciary.

Finally, the most significant challenge for ex post anti-avoidance is that it may come too late to change on-the-ground realities. Most of the Court’s major questions cases—including the COVID-19 vaccine mandate case,¹⁸⁷ the Clean Power Plan case,¹⁸⁸ and the student loan case¹⁸⁹—reached the Court in a pre-enforcement posture. Once a rule has gone into effect and parties have begun to comply—once vaccine doses have gone into arms or scrubbers have been installed on power plants—those regulatory consequences are difficult to undo. That was the rationale for the Court’s Abbott Labs doctrine favoring pre-enforcement review of regulatory action: if a court decision was to shield regulated parties from a rule’s consequences, the decision ought to come before parties “change[d] all their labels, advertisements, and promotional materials,” “destroy[ed] stocks,” and “invest[ed] heavily in . . . new supplies.”¹⁹⁰ With ex post anti-avoidance, by contrast, rule R_a might remain in force for industry A for several months or years before a court concludes in an industry Z case that the agency’s sequence of rules R_a through R_z trigger major questions scrutiny. Thus, even if courts can overcome the judicial manageability challenges of ex post anti-avoidance, agencies still will have opportunities to reshape entire industries before ex post anti-avoidance cuts off their regulatory efforts.

Conclusion

Major questions avoidance illustrates the concept of question size elasticity in both directions. Not only can a larger regulatory question be subdivided into several smaller ones, but the seemingly self-contained topic of major questions avoidance also inspires much larger theoretical and empirical inquiries that go to the heart and soul of the modern administrative state. Predicting the probability of major questions avoidance required us to delve deeply into the motives of agency officials. Evaluating the normative desirability of avoidance necessitated a broader theory of administrative state legitimacy. And playing out the chess match of anti-avoidance highlighted the limits of judicial power: when agencies respond strategically to new administrative law doctrines, courts will struggle to counter the agencies’ moves—especially when the clock is running and regulations that are in force only temporarily can have permanent practical effects.

With respect to all the major questions raised by major questions avoidance and anti-avoidance, our answers at this early stage are—and can be—only tentative. What already seems clear, though, is that careful and critical reflection on the empirical, normative, and jurisprudential dimensions of major questions avoidance and anti-avoidance can generate insights that travel far beyond the major question doctrine’s domain. Mapping and exploring the terrain of major questions avoidance and anti-avoidance can give us a clearer view of the theories that justify agency power and the extent to which that power can be constrained by the judiciary. In the end, major questions avoidance and anti-avoidance—whether or not they are desirable developments—have the virtue of offering us a new, richer, and more nuanced perspective on both the legitimacy and the adaptability of the modern administrative state.

98 S. Cal. L. Rev. 1497

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Daniel J. Hemel*

*Professor of Law, New York University School of Law. For helpful comments, the author thanks Beau Baumann, Blake Emerson, Barry Friedman, Jonathan Gould, Oren Tamir, and participants in workshops at the New York University School of Law and the University of Southern California Gould School of Law. Bhargav Tata provided excellent research assistance.

The Supervisory Power of State Supreme Courts

October 2025October 2025Adam B. Sopko*

State supreme courts are currently center stage as they face some of the most important issues of our time. But nearly all of the attention is focused on their ability to interpret state constitutions to provide rights guarantees that the U.S. Supreme Court has diminished or eliminated from the Federal Constitution. While important, judicial review is but one instance of a state high court’s authority. Their supervisory power—the primary source of judicial administrative authority—has served as a vital source of policymaking power to safeguard individual rights and enhance the public good. Supreme courts have relied on their supervisory power to reimagine state criminal justice systems, reduce homelessness, strengthen voting rights, expand protections for immigrants, and more. Despite its significance, this feature of state court practice has gone virtually unnoticed. As advocates increasingly look to state courts to address more and more of society’s complex and consequential issues, this distinctive aspect of their power is worth exploring.

This Article unpacks the supervisory power by mapping its sources, applications, and limits. The supervisory power has a basis in all fifty state constitutions and enables supreme courts to oversee their judiciary’s workload and operations. But as this Article shows, high courts are using this power beyond the humdrum of judicial administration to enhance substantive rights and remedies, facilitate their law development and agenda-setting capabilities, and mediate interbranch frictions. This Article’s core claim is that these more expansive applications of the supervisory power are generally defensible based on the evolution of state judiciaries and supreme courts’ unique roles in state governments. The twentieth century saw a dramatic reimagining of state high courts from inferior instruments for the other branches to powerful, coordinate members of the state policymaking apparatus. In addition to overseeing the judiciary’s operations, the supervisory power thus plays an important role in a high court’s ability to contribute to state governance.

This account of the supervisory power is broad but not unlimited. The Article highlights the supervisory power’s internal and external limits and sketches its metes and bounds to help frame its future applications. The Article then considers this judicial practice within larger debates on judicial policymaking and state constitutional structure. It engages with critiques of a more active judicial role and lawmaking powers. It explains that the key institutional assumptions behind such assessments do not map so easily onto the unique structure of state judiciaries. Stepping back, the Article encourages a broader but more nuanced view of state judicial power and the function of state high courts that wield it.

Introduction

In recent years, advocates have increasingly looked to state judiciaries to serve as a backstop against federal rights retrenchment.¹ More and more, state high courts are taking up some of the most consequential issues of our time, ranging from abortion rights and climate change to gender and racial equality.² Driving this turn to the states is the realization that state supreme courts can interpret state constitutions to provide greater rights protections than their federal counterpart.³

But as some court scholars have reminded us, a narrow focus on judicial review risks an incomplete understanding of how these institutions function.⁴ For those who study state courts, limiting our attention to conventional features of judicial power is more likely to result in undertheorized conceptions of what it is state courts do. However, for those looking to state courts as a possible response to regressive federal policies, such a singular view risks overlooking the full potential of state judiciaries. Indeed, for state high courts, their supervisory power—the primary source of their administrative authority—has played an essential part in their roles as constitutional innovators and in providing for the public good.

The supervisory authority is a freestanding source of flexible, discretionary power.⁵ It can supplement or enhance other aspects of court authority, as well as serve as a standalone basis for judicial action. It is not subject to many of the traditional limits on judicial authority, like justiciability and stare decisis, enabling courts to act where they might otherwise be unable to. And courts can use the power through adjudication as well as outside of resolving a case. Thus, at its most basic level, the power enhances a state supreme court’s capacity.⁶

The supervisory power has roots in all fifty state constitutions and provides the authority for supreme courts to manage the judiciary. It enables them to oversee judiciary personnel, control the court systems’ workloads, and supervise their general operations.⁷ Courts rely on this power to close courthouses due to inclement weather, impose workplace vaccination policies for judiciary personnel, manage complex litigation, revise and implement new jury instructions, and more.

However, this Article shows that state high courts use the power for much more than that. Indeed, despite its seemingly managerial focus, state supreme courts have relied on their supervisory power to craft sub-constitutional rights, strike statutes, and fill policy gaps left by the legislative and executive branches, among other more expansive applications.

In the past few years alone, the supervisory power has been at the center of some of the highest-profile cases in state courts. For example, following a report revealing a Massachusetts drug lab had fabricated evidence in thousands of cases over several years, the Commonwealth’s highest court fashioned a historic remedy, ordering dismissal of more than 24,000 convictions obtained as a result of the lab’s work.⁸ Several states have reformed their jury systems, emphasizing the harsh realities of racial bias in jury selection, porous nature of federal constitutional protections, and the bleak outlook at the U.S. Supreme Court for revitalizing relevant doctrines.⁹ Nearly a dozen supreme courts sought to limit the harms associated with homelessness in their states during the COVID-19 pandemic by preventing trial courts from hearing eviction proceedings.

Additional examples abound. High courts have relied on their supervisory power to craft sub-constitutional privacy rights; enhance administrative protections for incarcerated people; provide a right to civil representation for indigent parties; allow non-parties to appeal adverse decisions; and facilitate global settlements in complex civil cases.¹⁰ Further, courts have used their supervisory power to collaborate with other branches to make policies across a host of important areas, ranging from public health to criminal justice to housing.

Many of these examples drew national attention and helped highlight the possibilities and promise that lie in state institutions to make our legal system more just.¹¹ But while the spotlight shined on the outcomes themselves, what made them possible largely remained in the shadows—the courts’ supervisory power.

Like state high courts, the U.S. Supreme Court has supervisory power as well. To sharpen our understanding of the state-court power, we should consider its federal counterpart, too. As we shall see, the two differ in important ways. The federal supervisory power is rarely used, narrower in scope, and less powerful. Despite this asymmetry, the U.S. Supreme Court’s supervisory power has attracted a significant amount of scholarly attention.¹² That literature has largely viewed the power with skepticism.¹³ Critics question its legitimacy because it lacks a plausible source, is inconsistent with the Court’s role, and is in tension with federal separation-of-powers principles.¹⁴

Things look very different in the states. The supervisory power is a regular part of supreme court practice; its applications are more expansive, and it is significantly more potent than its federal analogue.¹⁵ Further, state supreme courts invoke the supervisory authority proactively, instead of waiting for parties to file suit, challenging certain institutional assumptions as to how courts exercise authority.¹⁶ Despite its significance, the state supervisory power has generated little scholarly attention. This Article thus shines a light on a consequential yet overlooked aspect of state court practice.

The Article’s core claim is that these more expansive applications of the supervisory power are a generally defensible aspect of state supreme court practice that follows from the modern institutional development of state high courts and can be defended as a distinctive feature of their role in state governance.

To advance this thesis, Part I begins by exploring where the supervisory power comes from. It first canvasses all fifty state constitutions, showing that the power has a basis in each state charter. That constitutional foundation alone, however, does not provide the supervisory power’s full genealogy. Part I thus turns to how the relevant state constitutional provisions came to be—as well as the institutional developments that prompted them. It traces the evolution of modern state supreme courts and their need for broad, flexible sources of power. During the twentieth century, state court reformers like Roscoe Pound and the American Judicature Society sought to elevate state judiciaries from simply a collection of courts to a meaningful, coordinate branch. Their efforts changed the structure of court systems, the role of supreme courts in state governance, and the scope of supreme court authority. They gave supreme courts more power—namely, the supervisory power—and revised the background assumptions that governed how courts use it. That background tells us where the supervisory authority came from and provides context for understanding the broader applications at the heart of this Article.

Part II presents a descriptive account of the supervisory authority, highlighting state high courts’ more expansive applications of the power. That account shows us that state supervisory practice is vast and varied. To account for this complexity, the Article provides a taxonomy that describes both the power’s many functions and its key attributes. It shows that the power is a highly flexible, potent form of judicial authority that enables supreme courts to effectuate the judiciary’s prerogatives as well as the public interest. This account is deepened by considering its federal counterpart. A brief review of the U.S. Supreme Court’s supervisory power demonstrates that state supervisory power differs in kind—a feature of state court practice that exceeds the boundaries surrounding its federal analogue.

Part II presents a broad, potent, and highly discretionary form of judicial power. However, the supervisory power is not unlimited. Part III explores its boundaries and limits. To account for the power’s breadth and flexibility, I draw on case law, state constitutional structure, and social science literature to propose a model I refer to as the zone of supervision that sketches the perimeter of the power’s permissible uses. I then turn to how courts are sanctioned when they step outside their zone of supervision. In short, state

constitutional structure provides tools to control and limit judicial power when courts exceed their zone of supervision.

Finally, Part IV considers the supervisory power’s theoretical and normative implications. At a conceptual level, this Article’s account of the supervisory power expands our understanding of supreme courts’ policymaking capacities and roles within a state’s broader governance apparatus. As a normative matter, Part IV considers the arguments against expansive notions of judicial policymaking and concludes such criticisms are based on institutional assumptions that do not track state judicial structures. Thus, broad uses of the supervisory power are not per se problematic; we should instead evaluate each use on a retail level with regard to a court’s own zone of supervision.

Stepping back, this Article makes three contributions. First, it offers a taxonomy that maps supreme courts’ varied uses of their supervisory power and its key attributes. Second, it plots the supervisory power’s limits and proposes a model that explains prior uses of the supervisory power and helps frame its application in the future. Finally, this Article makes a normative claim, arguing that supreme courts’ expansive uses of their supervisory power are a generally defensible and legitimate feature of state court practice.

One additional note before proceeding: this Article is in service of a larger project to understand state courts and their role in state governance. For years, these institutions have largely occupied a scholarly “backwater.”¹⁷ But as we have seen, that relative inattention to state courts has surfaced at the heart of some of the most pressing issues of our time, complicating those questions in the context of both state and federal public law.¹⁸ To that end, this Article’s thesis supports a broader call to conceive of state courts on their

own terms.¹⁹ We should not presume that frames and norms born in the federal courts are appropriate, ideal, or even applicable to state courts. Instead, these institutions deserve their own investment to surface their puzzles and better understand their possibilities.

I. The Creation of State Judiciaries and the Supervisory Power

The supervisory power is the lifeblood of state supreme courts. As this Article shows, it enables them to facilitate the judiciary’s day-to-day operations, protect their institutional interests, advance their prerogatives as a coequal branch in state governance, and more. To understand this power, then, we must evaluate both how it came to be and its relationship to courts’ institutional identities. This Part takes up that task. As shown in the first Section below, the supervisory authority is a constitutional power—it claims a constitutional basis in all fifty states, either through express provision or judicial interpretation of more general language.

But these constitutional roots do not tell us everything. We must also consider the creation of the underlying state constitutional provisions—and the institutions they empower. The second Section traces that story by exploring the institutional development of modern state supreme courts and its connection to the supervisory power. State court reform efforts during the twentieth century sought to elevate state judiciaries from simply a collection of courts to a meaningful coordinate branch. Those efforts changed the structure of court systems, their role in state governance, and the scope of supreme court authority. They gave supreme courts more power—namely, the supervisory power—and revised the background assumptions that governed how courts use it. Those changes set the baseline for both the institution and modern supervisory practice.

Before turning to where the supervisory power comes from, we should note this Article’s definition of the concept. State courts have rarely provided a clear description of the power. They have largely relied on vague statements and citations to capture the wide universe of how they use the power.²⁰ This Article’s definition reflects that ambiguity but attempts to bring clarity to the concept through a synthesis of this distinctive court practice within states and across them.

The supervisory authority is a power that state high courts possess either because it is expressly provided by a state’s constitution or because courts have adopted it by construing more general constitutional provisions.²¹ It is the primary source of administrative authority for state high courts to oversee the judiciary. It facilitates judicial administration, personnel management, and general control of the court system’s workload and operations. Those categories include both judiciary policymaking and case management decisions.²² While this power may at times implicate other aspects of supreme court authority, like regulatory oversight of the practice of law and judicial discipline, courts typically understand these powers as distinct from their supervisory authority.

Figure 1 below approximates the relative relationship between the supervisory power and more familiar forms of judicial authority.

Figure 1. The Supervisory Power versus Other Forms of Court Power

These forms of power overlap because the supervisory authority is its own standalone source of power that courts use as the sole source of a decision. But courts can also rely on the power to supplement other aspects of their authority. For example, to enhance its powers of ordinary judicial review, a court might use its supervisory power to override justiciability defects or find that a party has violated a statute and use its supervisory power to enhance an ordinary remedy.

It can also supplement other distinct forms of judicial power, like courts’ disciplinary authority over judges. For example, a supreme court’s formal disciplinary authority may avail it of only a limited number of sanctions—suspending a judge or removing them—whereas the court can discipline judges in other ways that fall below such penalties via the supervisory power, like transferring a case away from a judge for misbehavior that does not rise to the level of formal suspension or removal. These brief examples highlight the supervisory power’s hallmark of flexibility and informality, which I discuss in more detail in Section II.A.

To be sure, this simplistic diagram does not fully capture the supervisory power’s nuance. That is best demonstrated through the examples provided in Part II. This rough sketch is designed to help complement the basic definition provided above as well as the more detailed historical and doctrinal discussions that follow.

A. State Constitutional Roots

State high courts in all fifty states claim a constitutional basis for their supervisory power. In thirty-two states, high courts locate the supervisory power in the text of their state constitution. The language differs somewhat from state to state, but formulations include “[g]eneral administrative and supervisory authority,” “administrative supervision over all the courts of the state,” “general supervision and control of courts of inferior jurisdiction,” “general superintending control over all inferior courts,” “administration and supervision,” and so on. These clauses vest this power in the supreme court, the chief justice, or both. Of these states, twenty-one have a clause that explicitly refers to a supervisory authority.²³ In the other eleven states, courts rely on the constitution’s general grant of judicial power or another specific clause,²⁴ infer the power from multiple clauses related to the judiciary,²⁵ or from the judiciary article as a whole.²⁶

A further ten supreme courts refer to their supervisory authority as an “inherent” power, one that necessarily flows from the structure of the state’s judiciary and the position of the court at the top of the judicial hierarchy.²⁷ One could fairly describe these states as constitutional as well, since the underlying judicial structure, like the supreme court itself, is a creature of the state constitution.

In another six states, the supervisory power is said to come from both the states’ constitutions and a statutes.²⁸ In the remaining two states, the source of the supreme court’s supervisory power is unclear; the high courts have either declined to offer an explanation or have offered competing explanations without a clear basis to suggest why one may be correct versus the other.²⁹

To be sure, there are additional nuances behind these descriptions and categories. In the hybrid states, all six supreme courts have said expressly that their power comes from both their statutes and their states’ constitutions. However, a close reading of their opinions suggests those may be more claims of form than of substance. Indeed, in five of those six states, courts have noted in footnotes or suggested in dicta that the statute simply recognizes the authority codified in the state constitution—it does not provide it—and that even if the underlying statutes were repealed, their power would not change.³⁰

While it is helpful to know that all state high courts recognize their supervisory authority as a constitutional power, that does not fully account for how courts use it. To deepen our understanding of the supervisory authority, we must consider how the underlying state constitutional provisions came to be by tracing the formation of modern state supreme

courts. As we shall see, that story helps explain this feature of state court practice and provides insights into its normative implications.

B. The Development of Modern State Supreme Courts

This Section reviews the institutional development of state supreme courts and the connection to their supervisory power.

It begins with the need for state judicial reform in the early twentieth century. The diagnosis for these changes came from Roscoe Pound, who argued in 1906 that America’s state courts were too disorganized and complicated, and that their operations and administration were subject to excessive legislative and executive oversight. At the heart of Pound’s critique was the observation that state governments had two branches—executive and legislative—and a collection of courts; they “d[id] not have any true judicial department.”³¹ This observation served as the central theme for the court reform movement.

This Section then examines the changes themselves and their relevance to supervisory practice. In brief, the various reforms to elevate state judiciaries to meaningfully serve as coordinate branches affected the structure of court systems, their role in state governance, and the scope of supreme court authority. Importantly, the court reform movement gave supreme courts more power—namely the supervisory power—and revised the background assumptions that governed how they use it. Those changes set the baseline for both the institution and modern practice.

1. The Need for Reform

From the colonial era through the nineteenth century, state judiciaries largely consisted of complex, fragmented networks of courts. Borrowing from the English tradition, there was a court for nearly every kind of case—admiralty, civil, criminal, equity, probate, et cetera—distributed across a multitude of jurisdictions—city, village, state, et cetera.³² Their jurisdiction often overlapped, and they relied on highly formal, complicated rules of practice and pleading.³³ Suits frequently bounced between courts for years due to being improperly pled for a given forum, and when a case finally reached the proper forum, courts often resolved it on procedural grounds rather than on the merits.³⁴ As a result, routine litigation was incredibly slow, unpredictable, and primarily an “elaborate contest of lawyerly arts.”³⁵

Institutionally, state courts were generally weak and insufficiently insulated from other branches, allowing them to intrude on judicial prerogatives and strong-arm their decision-making. Local governments were typically the source of funding for much of the early state court systems, creating perverse incentives for local political regimes to influence judicial behavior.³⁶ Similarly, legislatures asserted a significant amount of oversight into judicial administration, especially rulemaking.³⁷ They were typically slow to respond to necessary changes to procedural rules, made litigation even more complicated when they did, and used their rulemaking power for patronage and to advance partisan interests and patronage.³⁸

By the turn of the twentieth century, the public viewed state courts as too slow, complex, ineffective, and politicized.³⁹ Enter Roscoe Pound. In a (now famous) speech, The Causes of Popular Dissatisfaction with the Administration of Justice, Pound diagnosed the many flaws and inadequacies in state courts and proposed a solution: a unified court system.⁴⁰ He “attack[ed]” the existing approach to judicial administration in state courts as overly technical and inefficient, rendering courts largely ineffective.⁴¹ He would refine his model judiciary over the subsequent decades, but at the heart of his vision, which served as the intellectual foundation for the state courts we have today, was the goal that “[u]nification . . . result in a real judicial department as a department of government.”⁴²

Pound’s basic view was that judiciaries should consist of a fixed number of courts organized into two or three tiers (e.g., local and statewide trial courts and a supreme court), and that courts use a set of streamlined procedural rules to resolve cases on their merits more often and rely on a set of streamlined procedural rules.⁴³ He also emphasized the need to vest supervisory power in a supreme court, free from legislative override, to oversee the functioning of all judiciary business.⁴⁴ Without these elements, he argued, a state could not have a “true judicial department.”⁴⁵

2. State Court Modernization

Pound’s diagnosis and proposed intervention of a unified judiciary served as catalysts for broader efforts to reimagine state judiciaries. Over the twentieth century, leading scholars like Henry Wigmore and Arthur Vanderbilt, and national organizations like the American Bar Association and American Judicature Society, among others, all built upon Pound’s conceptual foundation by proposing a variety of model judiciary articles for states to adopt in their constitutions.⁴⁶ By mid-century, reformers were in accord that their stated mission could not be accomplished unless state judiciaries had the ability and authority to control their businesses.⁴⁷ This linkage between establishing state judiciaries as independent, coequal branches of government and centralizing control over their operations was a central theme of the reform efforts in the latter half of the twentieth century and is largely what spawned the supervisory power we know today.⁴⁸

Ensuring that supreme courts had the capacity to oversee the judicial branch and function as a coequal branch in state governance motivated many of the judicial innovations we see in current state constitutions. Consolidating and centralizing the many courts within state systems in favor of a clear hierarchy, with the supreme court at the top, ensured a clear chain of command and control over cases and administrative business. Supreme courts were given greater (in many instances, plenary) control over procedural and administrative rulemaking as well.⁴⁹ Together, these changes gave the judiciary absolute autonomy over workload—enabling the supreme court to transfer cases and judges to optimize court resources and craft rules that better met the needs of the judiciary and litigants.

One particular reform along these lines warrants additional discussion: the streamlining of supreme courts’ prerogative writ power. Prerogative writs—mandamus, habeas corpus, prohibition, certiorari, and quo warranto—date back to seventeenth-century England, where they “made up the heart of the supervisory powers of King’s Bench.”⁵⁰ At bottom, these extraordinary forms of relief provided control over lower courts to “secure the lawful and effective administration of justice.”⁵¹ Indeed, for much of their existence, “[t]he authority that a state supreme court exercised over lower courts was generally confined to [prerogative writs]” or writs of error—that is, what we might understand today as an ordinary appeal.⁵² Relief would be issued in summary fashion where remedies at law were unavailable or unable to address the alleged harm. These writs were tools to ensure justice was done if and when a lower court erred in some extraordinary fashion.

That early practice formed the basis for the power wielded by state supreme courts after the founding.⁵³ State high courts referred to their prerogative writ power in sweeping terms: “hampered by no specific rules or means,”⁵⁴ “unlimited,”⁵⁵ “plenary.”⁵⁶ This was because prerogative writs were designed to prevent an “injustice” caused by a lower tribunal, and such errors could come in many forms; thus, the remedial power necessarily had to be sufficiently flexible and adaptable.⁵⁷

Despite this intended flexibility, state prerogative writ practice nevertheless operated within the procedural norms of the time and thus was subject to the same complexity and formality that sparked the reform movement. Indeed, the broader effort to streamline procedure and practice in state courts included the prerogative writ system.⁵⁸ Innovations included “all writs” or “in lieu of prerogative writs” amendments in state constitutions.⁵⁹ These provisions vested more power in supreme courts to provide relief in instances that might not have fallen easily into existing categories and more discretion to grant relief notwithstanding technical errors from a petitioner that would have otherwise foreclosed a remedy under prior practices. In other words, distinct from ordinary appellate review, this reform enabled high courts to intervene at any stage of litigation to correct an error or omission that is sufficiently unfair or unjust.⁶⁰

In addition to prerogative writ powers, changes to state judicial articles granted supreme courts administrative powers, explicitly granting them policymaking power to issue orders and directives to govern judiciary and non-court personnel alike. Relatedly, courts were given regulatory authority over judges and the state bar in the form of disciplinary power.⁶¹ Reformers also recognized that these changes to court structure necessitated a “soft[er]” side to court business.⁶² As a truly coequal branch, judiciaries require the ability to engage in “high politics” to maintain their prerogatives.⁶³ Indeed, as one commentator noted, such capacity is “essential” to realizing the reform movement’s larger goal of elevating the judiciary above a mere collection of courts.⁶⁴ Formal design choices and informal norms, like placing the chief justice as the head of the court system, regularizing the chief’s political responsibilities, and creating government relations offices within the judiciary, for instance, help foster this capability.⁶⁵ All of these changes flow from the need for the supreme court to supervise and oversee

the operations of the court system and each resulted in an expansion of judicial power.⁶⁶

New Jersey was the first state to implement “modern court” reforms.⁶⁷ Numerous states followed suit in subsequent decades, as reformers and scholars continued to refine the ideal judiciary structure and model constitutional article.⁶⁸ This interstate variation sparked a substantial debate among scholars as to what constitutes a truly “unified” judiciary—that is, which features distinguish unified from non-unified states.⁶⁹ By the early 2000s, over half of state judiciaries referred to their court systems as “unified,” notwithstanding significant structural and administrative differences between them.⁷⁰ Due to the widespread, but inconsistent, approach to unification by courts and conceptual disagreements among scholars, commentators have increasingly downplayed the value of evaluating unification at a retail level, with a granular focus on precise constitutional provisions.⁷¹ Instead, viewing the concept at wholesale emphasizes the reformers’ goal of establishing state judiciaries as coordinate branches of government and the associated changes in judicial perceptions and identity.

3. State Supreme Courts and State Governance

The accretion of these reforms had a significant impact on the identity of state supreme courts and informs the supervisory practice as we know it today. Specifically, there are two overlapping effects from the court reform movement that offer support for this conception of the supervisory authority. One concerns the ascendancy of state high courts’ role as a policymaker in state governance. The other relates to the increasing importance of independence for the newly established concept of a coequal branch.

The modern court reform movement came on the heels of broader governmental changes at the state level. These changes significantly influenced the policymaking capacity of state high courts. As Alan Tarr has shown, twentieth-century court reform sprang from a larger effort to shift the largely plenary policymaking power away from state legislatures.⁷² Rather than a commitment to advancing the general welfare, legislators overwhelmingly pursued personal patronage and partisan interests.⁷³ Indeed, by the middle of the nineteenth century, it was apparent that organizing governance around the legislature, based on the idea that they are the most democratic, and thus most responsive branch, proved to be a mistake.⁷⁴

State constitutions were revised to place a substantial number of limits on legislative power, like single-subject rules, the creation of legislative sessions, and “positive” rights. These and related changes enhanced the level of judicial review applicable in state government. Relatedly, courts were increasingly seen as the primary “safeguard against slipshod government” in the states.⁷⁵ Thus, in addition to a more expansive conception of judicial power, these design choices supported the concept of a more active, engaged judiciary.

Further, as part of the larger project of decentralizing policymaking power, state high courts were folded more directly into the state governance apparatus. In addition to their existing ability to craft new causes of action under the common law, courts were given the power to oversee the regulation of the practice of law and judicial discipline,⁷⁶ and they were vested with the authority to exercise appointment powers,⁷⁷ direct prosecutorial discretion,⁷⁸ and issue advisory opinions.⁷⁹ Others were given responsibilities to oversee statutory reform and participate in the legislative apportionment process. Some were even tasked with determining when officials in coordinate branches are no longer able to discharge their duties.

In addition to diffusing policy and governance powers to the courts, other reform-era changes enhanced supreme courts’ policymaking capacity —most notably, the prevalence of discretionary appellate jurisdiction and the creation of intermediate appellate courts. These innovations shifted high courts from a position of mechanical error correction to one of law development. These conceptual changes were broadly felt too, as no one particular combination of reforms was necessarily responsible for shifting a state high court from a reactive, adjudicatory body that intervenes as a last resort, to an engaged, proactive agent of state governance.⁸⁰ Indeed, as Robert Kagan and others have shown, this story of institutional development reflects the “societal consensus” at the time that state supreme courts should serve as coequal participants in state governance who, like the other branches, wield their power to provide for the states’ general welfare.⁸¹

The second relevant factor is the increasing importance of judicial independence—specifically, what that means and its linkage to the supervisory power. Before the court reform movement, considerations of independence were focused on judges—ensuring they were properly insulated to make unpopular decisions—but not on the judiciary itself.⁸² This makes a certain amount of sense, as state judiciaries, as a singular branch of government, were functionally nonexistent, so there was no real institution to protect. They lacked a clear political head, relied almost entirely on the other branches for operations and administration, and were funded by local governments. Institutional independence thus came not from the judiciary’s standing as a branch of government but from the independence each individual judge enjoyed.⁸³

But the reform efforts changed this. As Robert Tobin and Michael Buenger have shown, what emerged is an institutional identity of state judiciaries.⁸⁴ As noted above, the modern court reform movement came on the heels of broader state-level governmental changes.⁸⁵ Those structural changes included experimenting with various methods of judicial selection, like popular elections and various formulations of merit selection, that would ensure greater independence of state court judges wielding this enhanced policymaking power.⁸⁶

Within these broader changes were the more specific judicial reforms discussed above. Relevant here, unification centralized more responsibilities in state judiciaries by assigning control over more programs and social services, vesting administrative and operational control in the judiciary itself —including budgetary decisions—and enhancing the scope of available judicial power to manage this construct.⁸⁷ As a result, the influence of state courts relative to coordinate branches grew tremendously.⁸⁸ Whereas in the past, state judiciaries posed a modest political threat to other branches, their elevation as a coordinate, unified branch thrust state courts deep into the political thicket. Their increased power and influence posed potential threats to the prerogatives and interests of other, now coordinate, branches.⁸⁹

The reform movement thus imposed more responsibilities for non-adjudicative services onto judiciaries, made them more publicly accountable, and increased the level of inter-branch friction. These changes reestablished a baseline assumption of both supreme courts’ role and authority.⁹⁰ These assumptions tracked the central themes of Pound and the other reformers, including the necessity that high courts wield a broad supervisory power to operate the newly established judicial branch.⁹¹ Further, the changes incentivized courts to develop identities that accounted for both their institutional interests as an independent branch of government, as well as the interests of the public, the primary source of accountability. It is in this institutional context that state high courts wield their supervisory power.

II. The Supervisory Power IN the U.S. and State Supreme Courts

Part I explored the source of the supervisory power by highlighting its constitutional basis in all fifty state charters. It further examined the historical context behind these state judicial articles and the broader institutional development that prompted them. At the center of that discussion is the growth of state judiciaries as meaningfully coequal branches, the expansion of the judicial role in state government, and the enhancement of supreme court power. That story provides helpful context for understanding the broader applications of the supervisory power at the heart of this Article.

This Part takes up the question of application by synthesizing the nature of the supervisory power and the ways state high courts use it. It provides a taxonomy that organizes the vast supervisory practice and distills the power’s hallmark features. To deepen our understanding of this aspect of state court practice, this Part considers the U.S. Supreme Court’s supervisory power, as well. That comparison further illustrates the breadth and scope of the state power and raises normative implications taken up in Part III.

A. State Supreme Court Supervisory Power

This Section provides an overview of the nature of the supervisory power as well as the ways state supreme courts use it. It draws on a survey of all fifty state high courts. The survey began with a review of judiciary articles in state constitutions as well as statutory codes to derive a set of keywords. Westlaw searches were then conducted for each state.⁹² Since documents germane to this study, like administrative orders, are rarely collected by Westlaw, judiciary websites were also searched. Due to the significant limitations on access to state court documents,⁹³ secondary sources were also consulted.

This Article’s primary descriptive contribution is surfacing and typologizing the many in which ways state high courts use their supervisory power beyond its quotidian administrative applications. To name a few, it can expand substantive rights and enhance remedies; facilitate supreme courts’ law development and agenda-setting capacities; and help mediate interbranch frictions. In short, the supervisory power expands state supreme court capacity. It can supplement or enhance other aspects of court authority, as well as serve as a standalone basis for judicial action. It is immune from many of the traditional limits on judicial power (e.g., justiciability) and can be wielded both outside and inside of adjudication. To be sure, this Article’s definition describes a vast landscape of judicial practice. As the first Article to provide a comprehensive review of the supervisory power’s more expansive applications,⁹⁴ greater explication is needed to understand the concept. This Part takes up that task by sketching the many uses for which state high courts rely on the supervisory power.⁹⁵ It then provides a holistic account of the nature of the power.⁹⁶

Uses

Uses of the supervisory power by state supreme courts are nuanced and varied. To demonstrate that breadth and complexity, this Section includes applications that are both representative and illustrative of state high court practice. This Section also provides a taxonomy to further conceptualize the power and its institutional implications.

One important descriptive insight this Article offers is that state court use of the supervisory power is not limited to the litigation context. Thus, this Section distinguishes between adjudicative and non-adjudicative uses.

a. Adjudicative

First consider the ways courts use their supervisory power in the course of adjudicating disputes.

i. Rights and Remedies

State supreme courts frequently rely on their supervisory power to reinforce constitutional and statutory rights. This most often comes in the form of ad hoc procedural rules or frameworks that enhance underlying substantive rights, like due process or protections against unreasonable searches. Courts also rely on the power to enhance or expand ordinary remedies. Some have even used their supervisory authority to craft substantive protections from outside their constitution’s bill of rights.

As to ad hoc rules and additional procedures, some state high courts have fashioned rules and procedures that exceed substantive protections under both the state and federal constitutions. For example, courts have enhanced the showing required for criminal defendants to waive counsel; strengthened protections for effective assistance of counsel; and extended the provision of assigned counsel to municipal court proceedings—all under the supervisory power.⁹⁷ Such applications are common among state high courts and, as discussed below, this aspect of state supervisory practice is distinguishable from the U.S. Supreme Court’s narrower approach.⁹⁸

While less common, some state supreme courts have used their supervisory power to craft sub-constitutional substantive rights. Here, courts are announcing a rule under the supervisory power (rather than, e.g., the Speedy Trial Clause or Free Speech Clause) but drawing on constitutional values and principles for its content. New York’s high court, for instance, has developed a privacy right based on the “spirit of the Constitution,” and the Michigan Supreme Court has crafted substantive protections for certain grand jury indictees.⁹⁹ These decisions resemble common-law-like reasoning and center both on an abstract value (e.g., fairness) as well as the proper functioning of the legal system. Indeed, the New Jersey Supreme Court’s “fairness and rightness doctrine,” a body of law that includes several sub-constitutional substantive and procedural rights, is the product of its supervisory authority.¹⁰⁰

Beyond rights, courts also rely on the power to enhance remedies. Specifically, courts use their authority to fashion extraordinary remedies for violations of constitutional and statutory rights and obligations.¹⁰¹ Along these lines, the Massachusetts Supreme Judicial Court’s order discussed in the introduction illustrates how some courts use their supervisory power as a way to provide broad, systemic relief.¹⁰² It is also used to fashion remedies for conduct that is not prohibited by statute or constitution but nevertheless violates notions of “justice,” “fairness,” and the “proper administration” of the criminal justice system.¹⁰³ The key insight here is that courts understand the supervisory power as sufficiently flexible to remedy the variety of forms unfairness and threats to the proper administration of justice may take.¹⁰⁴

The uses thus far have focused on systemic applications to address “pervasive” inefficiencies or injustices. But the supervisory power serves as a tool to correct perceived unfairness for individual litigants as well.¹⁰⁵ As explained in more detail above, this common feature of the supervisory power is a progeny of state high courts’ prerogative writ power.¹⁰⁶ Courts often refer to their supervisory power as a product or consequence of this historical practice.¹⁰⁷ In these cases, courts use their power, via original petition, interlocutory motion, or sua sponte, to correct some aspect of a case, often before a final judgment. The purpose behind this aspect of supervisory practice is “to ensure public confidence in the integrity and fairness of the judicial system.”¹⁰⁸ Accordingly, applications vary widely from revising discovery rulings¹⁰⁹ and correcting improper sentencing procedures¹¹⁰ to modifying the scope of lower-court rulings¹¹¹ and addressing explicit judicial bias mid-trial.¹¹² The representative case among all state judiciaries is where a lower court has erred, with respect to either applying binding law or discretionary decision-making, and where the resulting prejudice cannot be remedied on appeal. However, in some states, high courts have used the supervisory power along these lines where appellate relief was sufficient.¹¹³

ii. Law Development

As the courts of last resort in their respective states, supreme courts are tasked with addressing matters of first impression, updating precedents where necessary, and shepherding the state’s common law, among other law development responsibilities.¹¹⁴ The supervisory power plays an active part in supporting this duty. It serves as a tool to provide more control over what a high court decides and when it decides it.

First, courts rely on the power to reach the merits in cases—a necessary part of doctrinal development. Courts can sua sponte reach cases not presently before them by transferring suits pending in lower courts,¹¹⁵ as well as reach issues not fully developed or raised by parties once a case reaches their docket.¹¹⁶ Additionally, the supervisory power overrides many of the conventional limitations on judicial power and party presentation that may limit judicial review and thus limit a court’s ability to guide state law.

For example, supreme courts from Alabama to Hawaii have said traditional standing and mootness rules do not limit the court’s supervisory power, meaning they can resolve an otherwise nonjusticiable case.¹¹⁷ At least one court has said explicitly that stare decisis does not attach to the court’s supervisory authority;¹¹⁸ others have implied as much.¹¹⁹ In several states, supreme courts have said their supervisory power exceeds the boundaries of subject-matter jurisdiction.¹²⁰ Despite the traditional rule that “[o]ne who is not a party to an action . . . is not entitled to appeal from the judgment of a lower court,” the supreme courts of Iowa and North Carolina have relied on their supervisory power to review appeals filed by non-parties to the underlying suit.¹²¹ The high courts in several states have said filings are not necessary to invoke the supervisory power.¹²² Nor are cases that lack a statutory or constitutional basis for review necessarily beyond a court’s reach.¹²³

Once a case is before a supreme court, various party presentation requirements, like issue preservation, can narrow the scope of judicial review, limiting the reach of a court’s intervention. However, the supervisory power can override these rules as well.¹²⁴ Moreover, courts suspend customary finality requirements, which often exclude certain cases from appellate review until they have reached some level of resolution, enabling courts to reach the underlying merits sooner than they otherwise would.¹²⁵ The supervisory power can also override standards of review, a more subtle

feature of judicial review, like applying a plain error standard but not requiring a showing of prejudice.¹²⁶

Second, courts use their supervisory authority to develop the underlying substance of the law. Supervisory decisions not only presage state constitutional decisions; they set an analytical foundation to help frame the underlying right or value. For example, over a series of decisions, Alaska’s Supreme Court used its supervisory power to sketch a variety of procedures to protect witnesses who are compelled to testify.¹²⁷ In the cases, the court balanced the state’s prosecutorial interests with the risk that compelled testimony may expose the witness to criminal liability. In a third case, the court held that a subsequently enacted statute providing a form of compelled testimony violated the state constitution’s Fifth Amendment analogue, reasoning it exceeded the prior boundaries set out by the court’s supervisory power.¹²⁸ The court “piece[d] together” its prior supervisory decisions to provide the “scope” of the state constitution’s right against self-incrimination.¹²⁹ In these cases, courts draw on the rules, frameworks, values, and policies developed under the supervisory power to, as Chief Judge Judith Kaye put it, “nourish” the state constitution.¹³⁰

Finally, the supervisory power can help supreme courts assert more control over how they decide an issue. Specifically, its highly flexible nature and lack of traditional limitations allow courts to resolve issues temporarily, until internal or external factors provide the basis for a more permanent resting place, like a constitutional decision, amendment, or statute. For example, in cases raising novel questions of federal constitutional rights, courts have recognized that the U.S. Supreme Court has not yet decided the issue and instead used their supervisory power to address the challenged conduct until the U.S. Supreme Court reaches it.¹³¹ In instances where legislation is pending or would be preferred, supervisory authority can act as a placeholder until a relevant statute or regulation is enacted.¹³²

This feature of the supervisory authority has an intersystemic aspect as well. The power can provide stability for state law in the face of federal doctrinal churn. For instance, when a line of U.S. Supreme Court case law is less than clear, state high courts may develop a variety of interpretations before the U.S. Supreme Court finally clarifies the underlying rules. That clarification may reveal that a state’s interpretation was wrong, requiring a change in the law on the books in that state.¹³³ In these instances, some courts have chosen to retain their interpretation but as a matter of their supervisory authority rather than the relevant provision of the U.S. Constitution.¹³⁴ Alternatively, where a state high court has lockstepped the state constitution and the U.S. Supreme Court has “repudiate[d]” the underlying federal rule, some state courts have chosen to resolve the issue temporarily under the supervisory power to decide at a later date whether they wish to retain the old rule under the state constitution or re-yoke it to the U.S. Supreme Court’s new one.¹³⁵

iii. Interbranch Engagement

Some state supreme courts rely on the supervisory power to facilitate another institutional responsibility—engaging with other branches. This includes both collaboration and resistance. In both circumstances, the supervisory power serves as a flexible tool for courts to combine the expertise and interests of each branch and to more easily navigate inevitable frictions.

When collaborating with other branches, courts often develop policies that affect both the judiciary and the state’s legal system writ large.¹³⁶ The supervisory power’s open-ended nature helpfully provides a way to adapt and implement the interests, expertise, and views of the branches to the situation.¹³⁷ For example, the Arkansas Supreme Court’s supervisory power was central to its collaboration with the other branches in revising the state’s criminal code.¹³⁸ It relied on the authority to enact a revised set of procedural rules based on input from a commission consisting of representatives from all three branches, the bar, academy, and activists.¹³⁹

Collaboration might include operationalizing a broad policy objective announced by another branch as well. For example, during the COVID-19 pandemic, New Jersey’s governor issued an executive order allowing certain prisoners to apply for early release in light of certain health risks.¹⁴⁰ Invoking its supervisory power to implement the policy, the court crafted a “framework” and expedited procedure that marshalled judicial resources to effectuate the order while balancing due process considerations.¹⁴¹

The power can also help courts navigate interbranch tension, especially when it implicates the courts themselves. As with examples of cooperation, the supervisory power’s flexibility enables courts to tailor context-specific rules. For example, in response to a series of decisions from executive agencies perceived as coercive to the court system, the Delaware Supreme Court relied on its supervisory authority to hold that executive agencies do not have jurisdiction over judicial branch labor disputes (unlike public employee unions in other branches).¹⁴² Following a gubernatorial veto of judicial salary increases some considered necessary, Illinois’s high court used its supervisory power to invalidate the executive action and set aside procedural defects to enforce a lower court’s order requiring an increase in appropriations.¹⁴³

iv. Oversight

Finally, all state supreme courts, through individual justices, the chief justice, or an administrative office, are responsible for administering the judicial branch.¹⁴⁴ Though this Article is focused on uses of the supervisory power beyond its quotidian administrative applications, some courts have taken notably expansive views of their oversight responsibilities and their judiciary’s overall workload that are worth considering.

For example, the Arkansas Supreme Court has relied on its supervisory power to appoint an “independent consultant” to audit and recommend solutions to address chronic backlog in lower court districts.¹⁴⁵ In response to a constitutional amendment providing California’s lower courts with “unlimited” habeas corpus jurisdiction, the California Supreme Court promulgated a filing procedure to avoid confusion stemming from overlapping jurisdiction that would ensure an efficient and “equitable” case flow.¹⁴⁶ While these examples may seem routine on their face, the courts’ explanations for their choices center “important considerations of public policy” and other normative values. In that sense, these brief examples illustrate additional ways state high courts use their supervisory power to operationalize notions of the general welfare within the proper administration of justice.

Complex litigation is another example where supreme courts rely on their supervisory power to manage systemwide workload and where choice and values can enter the decision. These uses of the power often resemble federal multidistrict litigation practice but are ad hoc and based purely on a supreme court’s discretionary evaluation of what is best in a particular situation for the judiciary, litigants, and public.¹⁴⁷

Here, too, supreme courts have used this oversight aspect of the supervisory power to achieve normative ends through the active management of such mass litigation. For example, at a time when Philadelphia’s trial courts had among the largest asbestos dockets in the country, the Pennsylvania Supreme Court used its supervisory power to consolidate almost 2,000 cases and order all pending matters to proceed immediately to a nonjury trial.¹⁴⁸ At the heart of the court’s decision was its emphasis on achieving “timely justice.”¹⁴⁹ Similarly, Colorado’s high court coordinated a spate of water law cases in a single trial court and promulgated an ad hoc procedure to resolve them as efficiently as possible.¹⁵⁰ Animating the court’s order was its recognition that it is an integral part of the state’s lawmaking apparatus and that the complex cases could frustrate its ability to contribute to state water policy by overloading judicial resources.¹⁵¹

Beyond control over courts and global workload, the oversight function of the supervisory power includes control over judges, too. This use of the supervisory power is distinct from formal disciplinary proceedings.¹⁵² Supreme courts rely on the power to ensure individual members of the judiciary are properly “administ[ering] justice” and comporting themselves with the high court’s conception of fairness and equality.¹⁵³ Thus, race-conscious jury assignments that violate notions of equality, wielding judicial power in a way that is “oppressive and improper,” and presiding over cases in ways that fail to meet the supreme court’s quality standards are the kinds of conduct supreme courts rein in with their supervisory power.¹⁵⁴

b. Non-adjudicative

As judges and commentators have long observed of the federal courts, they are “reactive” institutions that lack a “self-starter,” meaning the judicial power requires “someone outside of the judicial system” to initiate it.¹⁵⁵

To be sure, the U.S. Supreme Court can and does set its own agenda by signaling an appetite for certain kinds of cases to external actors, selecting cases that advance their interests, and defining the questions presented to help ensure particular outcomes.¹⁵⁶ These instances of judicial choice constitute a form of policymaking but nevertheless are still limited by the Court’s reactive design.¹⁵⁷ Indeed, as Martin Shapiro and Alec Stone Sweet put it, “litigants activate” the Court, which, in turn, defines the “parameters” for how it impacts law and policy.¹⁵⁸

Along these lines, state supreme courts operate very differently. Relevant to this Article, wielding their supervisory power is not necessarily contingent on a litigant invoking the judicial machinery. Rather, state supreme courts can and do proactively use their supervisory power to craft policy, contribute to state governance, engage with other branches, protect their institutional prerogatives, and promote their own conception of the general welfare. It is this proactive nature of the supervisory power that enables state supreme courts to serve as more than a passive policymaker, as with their federal counterpart, but instead an active agent in state governance.¹⁵⁹

i. Policymaking for the General Welfare

In addition to the reactive applications above, supreme courts can and do use their supervisory authority as a proactive policymaking mechanism. Specifically, it serves as a source of power that enables courts to advance particular normative ideals and contribute to a state’s general welfare based on its evaluation of what is necessary. Consider some recent examples.

Fines and fees. The supervisory power played an important role in reducing or eliminating the imposition of fees and fines. While the issue is not new, the pernicious effects and racial disparities caused by over-reliance on such penalties and obligations attracted renewed attention in 2014 after a police officer killed Michael Brown in Ferguson, Missouri.¹⁶⁰ The U.S. Department of Justice’s subsequent investigation and report drew a national spotlight on the ways in which some courts and local governments use fees and fines as revenue generators.¹⁶¹ In response to evidence showing the race and class implications of such policies, several state supreme courts used their supervisory powers to rethink the role of these penalties, with a more just judiciary serving as their North Star.¹⁶²

For example, after reviewing a report from a committee tasked with studying the impacts of court fees, the New Jersey Supreme Court invoked its supervisory authority to dismiss nearly 900,000 outstanding municipal cases and over $7 million in fines.¹⁶³ It also narrowed the circumstances in which judges can impose fees and capped permissible amounts.¹⁶⁴ The court’s actions were driven by its conception of a just court system: one that does not allow local governments to use the judiciary as a means of extraction.¹⁶⁵ New Jersey was not alone—high courts in Illinois, Kentucky, Michigan, and Virginia, used their supervisory power to make similar changes to their respective court systems.¹⁶⁶

Housing moratoria. Another recent example arose during the COVID-19 pandemic, which, in addition to the public health crisis, prompted significant social and economic instability nationwide.¹⁶⁷ Among the myriad effects of these shocks was housing security. Indeed, a policy challenge that government at all levels faced during the pandemic was how to balance the public health impacts of mass displacement with the economic considerations flowing from the significant job and wage losses across the country.¹⁶⁸ During this period, state actors enacted a “largely unprecedented” set of housing policies to try and manage the crisis.¹⁶⁹ State supreme courts, it turns out, played a proactive role, using their supervisory authority to initiate and shape these policies.¹⁷⁰

The most common form of housing policy interventions were eviction moratoria, where supreme courts would severely limit, or prohibit entirely, court-ordered evictions. As with most state-level policy responses, interventions varied. Court-imposed moratoria differed in duration, scope, and reach.¹⁷¹ Courts also framed the underlying issue differently in their orders—a feature of the supervisory power. For some, their order defined the issue as eviction itself, whereas for others, courts saw themselves as wielding their supervisory power to help limit larger social issues, like homelessness and the continued spread of COVID-19.¹⁷² For example, the South Carolina Supreme Court suspended all pending and future evictions for a period of months in recognition of the “difficulties,” like “housing insecurity and homelessness,” the pandemic would cause “individuals.”¹⁷³ Tennessee’s high court prohibited all judiciary personnel from “tak[ing] any action to effectuate an eviction . . . based upon the failure to make a rent, loan, or other

similar payment,” due to “the increasing economic issues caused by this pandemic.”¹⁷⁴

In addition to moratoria, supreme courts also crafted policies and procedures that modified or supplemented their existing eviction processes. Supreme courts in Michigan and New Jersey, for instance, instituted diversionary policies requiring landlords and tenants to attempt settlement before an eviction action could be filed.¹⁷⁵ Notably, the courts here were not reactively deciding disputes between parties, but were instead proactively issuing policies to try and limit the perceived social and economic effects of a crisis affecting the state.¹⁷⁶

Problem-solving courts. The instances above are more recent examples of the ways through which state supreme courts have affirmatively used their supervisory power to contribute to state governance. Another use along these lines, perhaps with a longer pedigree, is the creation of problem-solving courts.¹⁷⁷ Supreme courts use their supervisory authority to create specialized dockets, procedures to manage them, and groups of judges to

hear the cases, all within the existing judicial infrastructure.¹⁷⁸ These choices are made “outside the crucible of litigation.”¹⁷⁹

Like the examples above, specialty courts are another way supreme courts are addressing issues they perceive as important and using their supervisory power to fashion responses.¹⁸⁰ Indeed, specialty courts originated as a judicial policy solution to increasing rates of recidivism among drug offenders and spikes in incarceration rates from a turn to tough-on-crime politics. As a former Chief Judge of New York’s judiciary explained, these courts enable judiciaries to affect a “quiet revolution” to give victims and communities “enhanced safety and a greater voice” and a way for the judiciary to meaningfully contribute to society without “simply proliferating legal process.”¹⁸¹ Supreme courts across the country have created and manage specialty courts that touch on a range of issues, from homelessness to guns, to mental health and opioids. It is not the existence of these courts that makes them notable, but the discretion available to state supreme courts to conceptualize and experiment with solutions to address issues they foresee as necessitating interventions to benefit the state’s health, safety, and general welfare.¹⁸²

ii. Interbranch Engagement

In addition to serving as a source of affirmative policymaking, the supervisory power provides a way for supreme courts to engage with other actors outside of litigation. Here, it provides a tool for courts to advance desirable policies and pursue institutional interests.

A common application along these lines was discussed above—courts craft ad hoc rules and procedures that influence the investigative and prosecutorial discretion of state executive branch officers.¹⁸³ But as we know, state courts operate in a federal system, and so we should expect interactions with the federal government as well. Indeed, some courts have

relied on their supervisory power to affect the scope of federal executive authority.

For example, during the Trump administration, U.S. Immigration and Customs Enforcement (“ICE”) officers significantly increased their presence in state courthouses, arresting people coming to court as defendants or witnesses in cases unrelated to immigration.¹⁸⁴ Relevant here, ICE typically relies on “administrative” warrants, which are not reviewed by a neutral party to determine if it is based on probable cause.¹⁸⁵ Contemporaneous studies of this dramatic change in federal policy showed the increased threat of immigration enforcement had a chilling effect on state legal systems, preventing “immigrants from reporting crimes and participating in court proceedings.”¹⁸⁶

Several state supreme courts, particularly in blue states, responded by enacting new policies pursuant to their oversight of their state’s court system. For example, the Oregon Supreme Court promulgated a rule that required a heightened showing from ICE in order to make an arrest within or around Oregon courthouses. The high courts in Connecticut, New York, and Washington enacted similar policies for their respective court systems.¹⁸⁷

Moving beyond the executive branch, high courts can and do use their supervisory authority as a defense against perceived incursions from the legislature or to assert their prerogatives over the coordinate branch.

Consider letters of address. These are formal letters issued by state high courts to coordinate branches that provide legal analysis of pending legislation or possible executive action.¹⁸⁸ In some sense, they are like advisory opinions. However, they differ in at least one important respect—advisory opinions typically require a request from another branch, whereas letters of address are issued sua sponte. For example, the Michigan Supreme Court has sent several letters to coordinate branches, as far back as the nineteenth century, noting that pending or recently enacted legislation was unlawful.¹⁸⁹ Pennsylvania’s Supreme Court issued a similar letter intended to “mak[e] [their] views known” that the state constitution prohibited application of state public records laws to supreme court rulemaking procedures.¹⁹⁰ Maine’s Supreme Judicial Court provided advice that pending legislation purporting to require cameras in courtrooms was unlawful.¹⁹¹ And Massachusetts’s Supreme Judicial Court issued guidance sua sponte concluding various statutes reclassifying certain members of judiciary staff as part of the executive branch were constitutional.¹⁹²

These examples illustrate ways supreme courts can use their supervisory authority to affirmatively engage with other branches, but the key insight is that the supervisory power enhances their ability to act affirmatively. This feature has two notable benefits. It increases their independence, since courts need not wait for a proper case challenging a coordinate branch’s actions that threatens judicial prerogatives. And it can minimize the “risk [of] creating and prolonging unnecessary tension between [the] branches of government.”¹⁹³

But it is the supervisory power that creates opportunities for supreme courts to consider and weigh these factors against their institutional interests and possibly act free from the confines of litigation.¹⁹⁴

Attributes

The prior Section explored various ways in which state courts rely on their supervisory power. Turning from the how to the what, the discussion below examines the nature of the supervisory power by reviewing its key attributes.

a. Freestanding

The supervisory power functions as a freestanding source of judicial authority.¹⁹⁵ It is distinct from conventional aspects of state judicial power, like judicial review and common lawmaking, as well as more distinctive manifestations, like attorney discipline. This has implications on the scope and availability of a court’s authority.

First, because supervision spans a court’s adjudicative and non-adjudicative authority, the power is not limited by a supreme court’s jurisdiction.¹⁹⁶ In other words, when a court’s administrative or operational interests are implicated, their power is not constrained by the various jurisdictional or procedural defects that might otherwise foreclose review.¹⁹⁷ Second, because the power is freestanding and constitutionally based, it means the supervisory power cannot be narrowed by statute.¹⁹⁸

b. Lower Showing Needed

In some states, supreme courts have has conditioned supervisory relief on a certain showing of prejudice, not unlike ordinary judicial review.¹⁹⁹ However, because it is a separate power, some courts have required litigants to make a showing to warrant relief that is correspondingly different from that needed to prevail on a constitutional or statutory claim.²⁰⁰ When invoking their supervisory power, the interests implicated go beyond just the rights of the individual litigant but encompass the court system’s prerogatives, as well.²⁰¹ Additionally, unlike a constitutional claim, courts often use the supervisory power to modify or create new procedures or policies rather than invalidate statutes, further altering the institutional interests at stake in litigation.²⁰²

c. Discretionary

The power is also entirely discretionary.²⁰³ To be sure, some courts have devised standards that purport to cabin its availability, but such decisions are purely a product of choice. For example, they ask whether the underlying issue presents an “extraordinary circumstance,”²⁰⁴ is “sufficiently compelling,”²⁰⁵ or “serves the interests of judicial economy.”²⁰⁶ Others lack a standard along these lines but instead describe use of the power as rare or infrequent to suggest there’s a presumption against its use.²⁰⁷ But these standards are judicially imposed and courts rarely explain why a given case rises or fails to meet these thresholds.²⁰⁸ Additionally, some courts have significantly increased their use of the supervisory power, notwithstanding

continued adherence to such presumptions, as in Connecticut, Illinois, and Montana.²⁰⁹

More often, courts decline to provide any kind of standard governing their supervisory power or explicitly refer to it as a choice.²¹⁰ The structural guardrails that ordinarily cabin discretion are similarly absent. Considerations like text, precedent, and parties’ arguments that generally impose some guidance—even if minimal—on courts in the adjudicative context are not implicated.²¹¹ The discretionary nature of the power is especially acute in the non-adjudicative context, as courts need not wait for a party or litigant to initiate it, thus removing one of the strongest limits on judicial power.²¹²

d. Flexible

In addition to its discretionary nature, a hallmark of the supervisory power is its flexibility.²¹³ This manifests in two respects. First, rather than a fixed set of applications or possible contexts in which the power might apply, courts typically see it as open ended. The supervisory power is primarily a tool that enables the supreme court to address whatever needs arise in its responsibilities overseeing the judiciary. Those needs often result from unpredictable external factors, like a once-in-a-generation pandemic or a national recession.²¹⁴ Thus, the power must necessarily be sufficiently adaptable. Relatedly, the supervisory authority maintains the integrity of a court system and ensures the proper administration of justice. This objective similarly requires a certain level of flexibility, as injustice can come in many forms.²¹⁵

Second, the underlying doctrine generated by the supervisory power is supple.²¹⁶ Conventional constitutional analysis is generally quite rigid; the permanence of constitutional rules, additional factors like precedent and methodological commitments, and the specter of U.S. Supreme Court review can lead to quite wooden forms of decision-making.²¹⁷ Supervisory decisions, in contrast, are explicitly understood by state high courts as closer to generic understandings of policymaking than mechanical application of existing law to fact.²¹⁸ They explicitly consist of interest balancing and weighing various considerations, some of which may be absent from the underlying case.²¹⁹ Further, these decisions are often—though not always²²⁰—applied prospectively, which further blunts the force of precedent, minimizes the cost of overruling, and offers courts the lawmaking latitude “comparable to that of legislatures.”²²¹

However, despite its highly flexible nature, the supervisory power is not without bite. Though the U.S. Supreme Court has never invalidated a statute under its supervisory power,²²² such a result is not uncommon among state supreme courts.²²³ Additionally, not only have state high courts narrowed the discretion of executive and legislative actors; they have also forced state actors to take discretionary action, like ordering the legislature to appropriate a specific amount of funding.²²⁴ As such, the open-ended nature of the power does not necessarily dilute its potency.

e. Normative in Nature

Orders and decisions issued under a supreme court’s supervisory authority are explicitly subjective in their content. To be sure, this is not to say they are arbitrary. Quite the opposite—decisions are often highly evaluative of the underlying needs of the judiciary, the state’s larger legal system, and, in some instances, the population writ large. Courts may draw on various sources of facts, policy, science, and so on, to inform their decision.²²⁵ But paired with its highly discretionary nature and few formal constraints, it is in this sense that the supervisory power is predominantly a means for courts to operationalize normative or subjective views of the state’s law and policy. The underlying premise of decision-making pursuant to the supervisory power is not what a prior case, statute, or other sources provide to address a given issue. Instead, courts start from a place that’s closer to first principles and ask what they “should” do.²²⁶

***

The discussion thus far has shown that the state supervisory power came as a result of broader state-level governmental reforms that elevated the political status of state judiciaries, expanded their role in governance, and enhanced their power. This Part has demonstrated that the power is a discretionary, flexible, standalone form of judicial authority that increases the capacity of courts and overrides many of the traditional limits on their power. Courts have used their supervisory power beyond the day-to-day management of the judiciary to enhance remedies, strengthen rights, and navigate interbranch relations.

To expand our understanding of the state supervisory power, we should also consider its federal counterpart. That comparison shows that the state supervisory authority is more expansive, potent, and legitimate. It raises important normative implications for how we evaluate this aspect of state

judicial practice and challenges some institutional assumptions concerning state high courts. I elaborate on these implications in Part IV.

B. U.S. Supreme Court Supervisory Power

Similar to state courts, the U.S. Supreme Court’s supervisory authority refers to powers that enable it to oversee the federal judiciary’s operations “in order to preserve the integrity of judicial processes.”²²⁷ However, as shown below, the federal high court’s supervisory power is narrower, significantly more limited, and generally considered an illegitimate feature of federal practice. Thus, the key takeaway from this brief comparison is that while state and federal supervisory powers share common elements, the former is a distinctive feature of state court practice.

Comparison

Looking at the Court’s use of the power as a whole, it largely falls along two tracks—ad hoc rulemaking and remedial enhancement.²²⁸

Cases fall along the first track when relevant procedural, statutory, or constitutional sources come up short.²²⁹ When the Court perceives an omission in relevant statutes or rules of procedure that affects the “quality” or proper functioning of federal litigation, it uses its supervisory power to address it.²³⁰ On the second track, the Court uses its supervisory power as an auxiliary form of remedial authority to execute statutory and constitutional policies. In these cases, the Court perceives that the existing enforcement mechanism fails to sufficiently implement a statute’s underlying objective or constitutional right’s core values, then uses the supervisory power to span the remedial gap. These features of the Court’s supervisory power are similar to the applications discussed in Part II.A—state high courts use their own authority along the same lines.²³¹

The federal supervisory power is also flexible, consisting largely of balancing by the justices. Some scholars have described it as “procedural common law” or “procedural lawmaking.”²³² Others have referred to supervisory decisions as “essentially legislative” in that the Court’s reasoning is more akin to policymaking than legal analysis.²³³ This, too, parallels the state supervisory power.²³⁴

Despite these similarities, there are significant differences between state and federal supervisory powers. Notably, the Court’s own power is limited to adjudication, unlike its state counterparts. Further, when it crafts ad hoc rules, the protections they afford litigants rarely exceed existing Constitutional limits—i.e., federal supervisory rules seldom offer more protection than the Constitution.²³⁵ And the Court has never invalidated a statute with its supervisory power. In these ways, it is fair to say that the U.S. Supreme Court’s supervisory authority is narrower and less potent than its state-level alternative.

Judicial Administration and Constitutional Structure

The differences between the state and federal powers can primarily be explained by structural features of the state and Federal Constitutions and their respective judiciaries.

As discussed in Part I, state court systems evolved into a unified model, placing the supreme court as the administrative head of the courts and centralizing in the high court operational powers and responsibilities. The federal courts followed a different path. Federal court reformers, like William Taft, pursued a decentralized design. While the Supreme Court is the highest court of the judiciary, administrative and operational responsibility is diffused across a vast network of judicial agencies.²³⁶

For example, the Judicial Panel on Multidistrict Litigation both consolidates complex civil cases in a single trial court for pretrial proceedings and fashions rules that govern relevant procedures.²³⁷ The Administrative Office for the federal courts oversees the judiciary’s pretrial supervision and probation services for criminal defendants.²³⁸ The Judicial Conference serves as the courts’ primary policymaking arm, developing policies to implement the myriad statutes governing the federal courts, as well as advising Congress on the federal judiciary’s needs and interests.²³⁹ Together, they create a constellation of supervision. Thus, whereas supreme courts administer state judiciaries, the federal court system is administered by the federal judiciary.²⁴⁰

Further, unlike state courts, the administrative power of the federal courts is almost entirely statutory.²⁴¹ This structural distinction raises institutional considerations as to the scope of the power courts wield and the source of the prerogatives behind it. Since the various judicial agencies are creatures of statute, many of the first-order policy choices are made by Congress rather than the Supreme Court.²⁴² Even where Congress delegates broad discretion to the judiciary, it is wielded by a vast bureaucratic apparatus, rather than a single decision-making institution.²⁴³ To be sure, the Chief Justice wields a significant amount of influence over this system, but the underlying structure is sufficiently decentralized as to allow for inter-agency conflicts and even for agencies to countermand the Chief Justice’s own prerogatives.²⁴⁴ In these ways, the structural distinctions between how state and federal courts are administered plays a substantial part in the scope of the supervisory authority available to the respective high courts.

Constitutional structure similarly contributes to the differences between the state and federal supervisory powers. The source of the federal supervisory power is contested in the literature,²⁴⁵ but the federal government can only exercise those powers provided for by the Constitution, and scholars generally agree, whatever its source, that Article III significantly limits its scope.²⁴⁶ Broad uses of the supervisory power is said to exceed these limits by providing the justices with a “freestanding” source of policymaking authority that enables them to resolve disputes based on normative assessments of justice and fairness, rather than a statute or constitutional provision. In other words, sketching public policy, crafting the suite of remedies available for violations, and determining the methods of enforcement are all issues that fall to nonjudicial branches. State constitutions, in contrast, limit and distribute powers rather than grant them, and as discussed in Part I, modern government reform allocated greater policymaking responsibilities to supreme courts and created the supervisory power as one of their primary tools to do so.

In sum, the U.S. Supreme Court has a supervisory power that shares several features with its state counterpart. It is flexible and has largely served as a source of policymaking power to craft ad hoc procedural rules and enhance remedies. However, the two differ meaningfully. The federal power is both rarely used and narrower in scope.²⁴⁷ It is limited to adjudication, rarely afforded parties the level of relief seen in state courts, and never served as the basis to invalidate a statute. These distinctions are largely products of the fact that state constitutions generally allocate more administrative policymaking power to state courts than their federal counterpart and that power is centralized in state supreme courts whereas in the federal judiciary it’s diffused across a host of actors.

III. Boundaries and Limits

The discussion thus far has described the supervisory power of state supreme courts and connected this feature of state court practice to the institutional development of modern state judicial systems. That analysis defends the broader uses of the power reviewed in Part II as both institutionally and constitutionally grounded. But this Article’s thesis is a qualified rather than wholesale defense of the practice. This Part thus considers the supervisory power’s limitations. As Part II showed, the supervisory authority’s applications are vast and the power itself quite discretionary. To account for this breadth and ambiguity, this Part proposes a model it terms the zone of supervision to sketch the supervisory power’s boundaries. It then discusses how state constitutional structure provides tools to sanction courts when they cross them.

A. Boundaries

This Section sketches the supervisory power’s metes and bounds through a model that both explains prior uses of the power and helps frame how courts might use it in the future.

The model relies on two variables drawn from the descriptive and institutional accounts above: the legalness of the underlying issue and its proximity to judiciary interests. Together, the variables create a two-dimensional space this Article refers to as the zone of supervision, which represents the idealized conception of the supervisory power. This perimeter demarcates the scope of a court’s supervisory power. Uses that fall outside the scope should be viewed with skepticism. Section III.B explores the various sanctions available when a court does wield its power beyond its zone of supervision. But first, this Section unpacks the model by exploring its two variables.

Legalness

Legalness here refers to the nature of the underlying issue or intended application.²⁴⁸ Based on this attribute, supreme courts may consider the supervisory power to be appropriate or ill-suited to addressing the question. In this context, legalness falls along a spectrum. The spectrum turns on the informal nature of the supervisory power and the fact that it overlaps with other forms of judicial authority. On the one end are applications of the power that are insufficiently legal or too policy-like. At the other end are applications that are too legal.

State high courts consider applications of the supervisory power as too policy-like when they implicate a multitude of competing interests and lack a basis to weigh them, or have multiple potential resolutions without clear criterion to evaluate them. For example, when asked to impose a requirement that jurors in a criminal proceeding identify their race before voir dire, the Connecticut Supreme Court declined, explaining that the central issue—the interaction between the ways jurors self-identify with the perceptions of prosecutors—was too complex.²⁴⁹ Iowa’s high court similarly refused to craft a rule under its supervisory power to require certain probation proceedings precede related criminal trials, explaining that such a rule implicates sufficiently complex questions of public safety best left to the legislature.²⁵⁰

At the other end of the spectrum are applications that are too “legal,” meaning courts decline to exercise their supervisory power because the issue calls for a more formal or durable source of power.²⁵¹ For example, North Carolina’s supreme court declined to use the supervisory power to reach the merits of an as-applied challenge to a statute in a consolidated case because it was appealed before any record development in the individual actions.²⁵² And Kansas’s high court refused to use its supervisory power to issue ad hoc relief, reasoning the precise remedy sought already existed in a statute.²⁵³

Proximity to the Judiciary

The supervisory authority’s purpose as a power supreme courts wield to oversee and manage the judicial branch serves as a boundary as well. Application of the supervisory power is sensitive to its relative proximity to the judiciary and its responsibility overseeing a state’s justice system.²⁵⁴ That is not to say the supervisory power is limited to contexts that only concern the judiciary, but it is to suggest that there must be a sufficient nexus between the policy or relief sought pursuant to the supervisory authority and judiciary operations and its interests.²⁵⁵

On one end is high proximity to the judiciary. While comparatively rare, there may be some contexts where supreme courts might see their intervention as unwarranted or inappropriate. This arises in areas where lower court discretion is typically expected, like decisions related to appointing counsel, courtroom management, contempt orders, and so on.²⁵⁶ But for the most part, situations with a significant nexus to judicial operations or interests will warrant use of the supervisory power.²⁵⁷

On the other end are issues that are too remote from the judiciary’s interests or administration. As the relationship between the judiciary’s interest in the proper administration of justice and responsibility for operations and the sought-after relief grows more attenuated, supervisory power is considered less appropriate. For example, crafting evidentiary rules or rules of criminal procedure is closer to the judiciary than announcing a rule under the supervisory power that would directly control law enforcement conduct.²⁵⁸ And sketching rules concerning public access to internal records for a component of the judiciary differs materially from an agency that is constitutionally separate.²⁵⁹

As noted, both variables—legalness and proximity to the judiciary—exist on spectrums. Bringing them together, we can see a sweet spot where the supervisory power is best suited or most appropriate. This Article terms the area the zone of supervision. It is in this space that courts should wield their supervisory power. Applications that fall outside its contours should presumptively be viewed as overreach. Figure 2 below serves as an illustration.

Two points of clarification are warranted. First, this model is not based on fixed points. In fact, the variables are contingent. As discussed in Part II, the power is highly discretionary and flexible. This adaptability allows courts to frame applications of the power in different ways that may place it within or beyond the zone of supervision.

Figure 2. Zone of Supervision

For example, consider again the pandemic eviction moratoria. Suppose two courts issue moratoria that are identical in every way except the reasons for them. Court A says it is invoking its supervisory power because it feels that the potential harms to unhoused people during a historic pandemic outweigh the economic harms to landlords. Court B explains that due to social distancing requirements, the number of cases the judiciary can process is significantly reduced and that it must prioritize criminal cases, custody disputes, and domestic violence hearings over eviction proceedings due to speedy trial requirements and liberty interests. The outcomes under either framing are essentially the same—no eviction proceedings—but one might reasonably think Court B’s moratorium is closer to the heart of its zone of supervision.

These choices reflect a linkage between how courts frame applications of the power and their understanding of the specific contours of their zone of supervision. To a certain extent, this is to be expected, as the contextual

nature of a given supreme court’s power is well documented in the literature.²⁶⁰ Indeed, interstate variation is not uncommon.

For example, consider how state high courts divided over a rule requiring law enforcement to record custodial interviews. Several courts considered the issue under state and Federal Constitutions as well as the supervisory power and split on the question.

The high courts in Minnesota, New Hampshire, New Jersey, and Wisconsin, for instance, understood the question to be well within the bounds of their supervisory powers’ zone of supervision, as it implicated their duty “to take all appropriate measures to ensure the fair and proper administration of a criminal trial.”²⁶¹ For the supreme courts of Connecticut, Kentucky, Maryland, and Vermont, though, the issue neither raised a constitutional question nor was it appropriate for supervisory relief and was thus best suited for the legislature.²⁶² There are other examples,²⁶³ and they

each illustrate how the variables within the model sketched above are not fixed across states but, due to the nature of the doctrine, are quite fluid.

Second, when an application of the supervisory power falls outside of the zone of supervision, it does not mean such a use of judicial power is inappropriate or illegitimate. Developing a rule or framework may be well within the court’s power—but just not its supervisory authority. For example, a court may determine requiring custodial interrogation of juvenile suspects is outside its zone of supervision, but it is required by the state constitution’s due process clause or a provision of a relevant statute.²⁶⁴ The supervisory authority is a standalone power and can thus supplement other forms of judicial power as well as serve as an alternative basis for a court to act.

Limits

A court’s zone of supervision is subject to both internal and external factors that police its boundaries. But both factors implicate the state’s political environment.

Internally, as multimember bodies, a supreme court’s composition is crucial to how and when it wields power.²⁶⁵ The supervisory authority is no exception. Thus, changes in a court’s composition can influence whether a given application of the supervisory power falls within the zone of supervision or should instead be seen as exceeding authority. For example, in the early 2000s, the Michigan Supreme Court experienced “deep divisions” along these lines.²⁶⁶ After decades construing the supervisory power broadly,²⁶⁷ a new majority of the court took a narrower view of its zone of supervision.²⁶⁸

While these internal factors can limit the supervisory power, the primary checks are external. Indeed, state constitutions “prioritize[] external checks on government more than internal checks.”²⁶⁹ Following the “first wave” of state constitutions at the founding, subsequent charters from California to Connecticut emphasized control of government through novel structural innovations, like single-subject rules, statewide gubernatorial elections (versus legislative selection), and the creation of referendum, initiative, and recall processes.²⁷⁰ It is these unique structural features that offer legal and political tools to constrain government authority.²⁷¹ Thus, the most consequential check on state judicial power is the state’s political processes, as defined by a state’s particular constitutional structure, norms, and history.²⁷²

Consider some of the relevant structural features common to state constitutions. The vast majority of justices stand for some kind of election. And even in the states that rely on a different method of selection, those mechanisms are not distorted by structures like the Electoral College. These features offer some level of majoritarian control over who is wielding judicial power. Further, with one exception, all state constitutions impose mandatory retirement, term limits, or both, which help facilitate churn as to court personnel. And the meaningful availability of popular initiative and amendment can similarly serve as a form of judicial sanction.²⁷³ Taken together, these and other structural considerations play, as Laura Langer has shown, “defin[ing]” roles as to the contours of a supreme court’s power.²⁷⁴

The coordinate branches similarly channel a state’s politics to influence the shape of a court’s power and what judges consider overreach or lack of compliance. As Meghan Leonard has observed, the coordinate branches of state government “have increased ability to fight back” against state supreme courts, relative to their federal counterparts.²⁷⁵

Both branches have constitutional and political tools that can narrow and check courts. In state’s that rely on executive appointment, for instance, governors have used this authority to reconfigure courts they think of as activist, a tack Govenor Chris Christie attempted in New Jersey.²⁷⁶ Executives have also used their fiscal powers to slash court budgets or offer lower court judges raises in exchange for support of measures that check supreme court power.²⁷⁷ As leaders with a statewide base, governors have also successfully galvanized popular support via direct democracy to bypass the legislature and override or countermand the courts.²⁷⁸

State constitutional structure and politics similarly afford legislatures several tools to meaningfully check judicial power. In the states where legislatures play a role in reconfirming or retaining justices, Thomas Gray has suggested the availability of such a sanction can and does chill potential abuses of judicial power.²⁷⁹ Legislatures can also use their impeachment power as a way to threaten or check judicial overreach.²⁸⁰ Similarly, there is a growing literature exploring the effects of court-curbing legislation at the state level that shows it can limit court power through direct (modifying substantive or procedural features) and indirect (galvanizing public support against the court) means.²⁸¹

State constitutions also provide the possibility of constitutional amendment, which can check judicial power and modify its undesirable applications. Studies of the constraining role of such measures suggest that using amendments to keep statutory and constitutional texts brief and detailed through frequent revision can “limit . . . the judiciary’s capacity to shape public policy” by narrowing their interpretive discretion and “minimiz[ing] the need for ongoing judicial determinations in the development of evolving public policies.”²⁸²

As a result of many of these structural features, most state high courts operate in closer proximity to their state’s political thicket than their federal counterparts.²⁸³ As discussed in Part I, this was an intentional design choice as part of court unification efforts. That said, not all courts and chief justices are equally adept at the judicial statesmanship aspect of their jobs.²⁸⁴ In this way, a court’s political savvy can (perhaps subtly) influence the boundaries of a court’s power and thus its zone of supervision as well.²⁸⁵

In sum, the distinctive vision for government that elevated supreme courts to truly coordinate branches and produced the supervisory power was also responsible for the constitutional features that limit it. These structural considerations produce internal and external political factors that can genuinely sanction and check court power. Indeed, the state public law literature has long recognized state courts are subject to political forces to a degree “unknown in the federal system.”²⁸⁶ The accumulation of these elements produces a governance structure capable of “absorb[ing]” broad applications of judicial power “much more constructively than the federal system.”²⁸⁷

With these boundaries and limits in mind, the next Part considers what to make of the supervisory power, as well as its broader implications.

IV. Implications

During the nineteenth and twentieth centuries, states from Alaska to Maine revised and redefined the structure of their governments through a flurry of constitutional conventions and amendments.²⁸⁸ Among other things, these changes elevated state judiciaries to equal status with other branches, made them more independent vis-à-vis the other branches, reconceptualized the role of state high courts by expanding their responsibilities, made them more accountable to the public, and, importantly, deliberately increased their power.²⁸⁹

The increase in power and political status gave high courts more tools to control their operations and advance their interests. The supervisory power is one such tool and, as Part II shows, courts have used it beyond its routine administrative applications to make and shape policy across a range of contexts. This policymaking dimension of the supervisory power implicates a host of theoretical and normative questions.

This Part works through the major threads of those analyses. Conceptually, this Article’s account of the supervisory power suggests a more active role for courts within the state policymaking apparatus in which they operate as equal partners with the other branches to advance the state’s general welfare.²⁹⁰ The supervisory power provides high courts with a more precise and flexible tool to contribute to a state’s ongoing governance project. To be sure, this account of a supreme court’s role raises normative questions related to the legitimacy of judicial policymaking. While a comprehensive theory of interbranch relations is outside the scope of this Article, Part IV.B engages with some of the primary critiques of judicial lawmaking. In brief, the institutional assumptions that animate these important arguments do not map so easily onto the separation-of-powers principles at the heart of state constitutions, nor the institutional assumptions that underlie how state judicial power is allocated.

A. Theoretical Implications

At a basic level, the supervisory power provides an additional tool for supreme courts to actively participate in state governance, within adjudication and outside of it. While the power can perform that function across a range of applications, its capacity to provide signaling, facilitating, and coordinating functions is especially important.²⁹¹

As a signaling device, supreme courts can call on the other branches to take action or they can share their perspectives on the underlying legal or policy issues outside of the strictures of ordinary constitutional litigation. For example, by enhancing constitutional values via procedural rules,²⁹² courts can share concerns regarding law enforcement tactics without barring the behavior entirely as an “unreasonable search” or “cruel and unusual punishment.” Similarly, an area of law or policy might benefit from the unique tools and institutional capabilities of the legislature, but various exigencies or other factors may necessitate a temporary solution. Here, too, courts can signal the policy gap for the legislature and offer an initial solution that reflects the judiciary’s perspective and expertise.²⁹³

The supervisory power similarly enables courts to operationalize and facilitate policies crafted by other branches. The decision by New Jersey’s high court to fashion a framework implementing the governor’s prisoner release policy during the pandemic is illustrative.²⁹⁴ There, and in similar examples, high courts invoke the supervisory power to effectuate the policy choices other branches have codified.²⁹⁵

Supreme courts can also coordinate actions between and among the branches towards effective governance. Consider again the Arkansas Supreme Court’s decision to bring the branches together to redraft the state’s criminal code from the ground up, or consider the California Supreme Court’s Collaboration on Mental Health Issues that resulted in related legislation.²⁹⁶ High courts across the country have similarly relied on their supervisory power to engage the other branches and channel their collective roles towards a specific policy goal.²⁹⁷ These examples demonstrate how the supervisory power enables courts to help harness the state’s full policy capacity towards a shared objective, or at least provide a venue to align on what those shared objectives are.²⁹⁸

These features illustrate some of the ways in which the supervisory authority empowers courts to contribute to state governance by engaging with other branches. Part II illustrated how supreme courts can make policy directly, in adjudication and beyond it. Together, we see how the supervisory power expands a supreme court’s policymaking capacity beyond the binary means afforded by judicial review. These applications of the supervisory power highlight a distinctive role for high courts in state governance, thus raising broader implications for allocation of powers and interbranch dynamics.

Some recent work on state separation-of-powers principles suggests that a core commitment at the heart of state constitutions is effective government. Scholarly accounts have observed that state constitutional structure favors practical over theoretical conceptions of institutional relations.²⁹⁹ John Devlin, for instance, has argued that the distinctively mixed design of state government also suggests state constitutional structure prioritizes pragmatism and practice over political theory.³⁰⁰ This work rejects generic notions of government structure and institutional assumptions based on the Federal Constitution. Instead, scholars have elaborated on the significance of the unique structural arrangements and deliberate design choices in state charters.

This work frames state interbranch relations almost exclusively around conflict and contestation.³⁰¹ But as Jonathan Marshfield has shown, a Madisonian theory of separation of powers finds little purchase in state constitutions.³⁰² In other words, the notion that “ambition can be made to counteract ambition” between the branches is not the organizing principle behind state institutional structure. Rather, Dan Rodriguez has suggested that the core commitment that animated modern state constitutional development is good government.³⁰³ People prioritized a structural regime that is “pragmatic” and can provide for their general welfare.³⁰⁴ Part I explored this reorientation in the specific context of court reform—it was a catalyst for the

supervisory power—but Rodriguez shows it applies across the entire constitutional structure.

Developing conceptions of interbranch relations that prioritize conflict or minimize collaboration leaves this core aspect of state constitutional structure undertheorized. To be sure, friction and “showdowns” are inevitable (and perhaps desirable).³⁰⁵ But developing conceptions of interbranch relations that focus on contestation limits the explanatory value of such theories and points towards a parochial conception of state constitutional structure.³⁰⁶

This Article’s account of the supervisory power helps widen our lens accordingly and lays the groundwork for a more fulsome analysis of interbranch relations that elevates the role of cooperation.³⁰⁷ It demonstrates some of the ways the supervisory power can serve as a tool for courts to contribute to the governance process through expanded policymaking,³⁰⁸ filtered through the judiciary’s institutional expertise and distinctive political incentives (i.e., their zone of supervision).³⁰⁹

B. Normative Implications

With this conceptual analysis in mind, we might ask then what we should make of the supervisory power. As discussed above, and noted throughout the Article, the supervisory power implicates foundational questions of state judicial power and role. Absent a comprehensive theory of state courts, though, we cannot fully evaluate the supervisory power’s normative implications. Thus, in working through the primary themes of that analysis, this Section’s discussion is accordingly tentative and brief.

We might fairly describe the supervisory authority as a judicial policymaking tool. As noted in Part II, the power plays a direct (e.g., ad hoc procedural rulemaking) and indirect (e.g., reaching a constitutional issue no party raised) part in enhancing a court’s capacity to make and influence state policy. To evaluate such aspects of judicial power, the courts’ literature often inquires as to whether courts are wielding the proper power and whether they are using it appropriately.³¹⁰ This is a vast literature that spans disciplines from law to social science, but two variables common to analysis along these lines are legitimacy and a court’s proper role.

It is fairly uncontroversial to say that American constitutional governance entails some level of judicial policymaking.³¹¹ What is typically contested is how much is too much. Robert Kagan famously offered an institutional frame he termed “adversarial legalism” to help critique what he saw as an overreliance on courts as policymakers.³¹² The thrust of Kagan’s nuanced argument against a broader vision of judicial policymaking is that American litigation is overly formal and participatory, which narrows the inputs and available tools for courts, creates higher political and economic costs, and as a result is generally less desirable than less court-driven alternatives.³¹³

This critique of judicial policymaking is worth considering. However, I think the account of the supervisory power sketched here, and the broader institutional assumptions it brings with it, undermine or perhaps even obviate some of the concerns Kagan’s theory advances. In brief, Kagan’s critique assumes judicial policymaking comes exclusively through adjudication—indeed it is in the very name of his concept (adversarial). But as discussed in detail in Part II, that is not the case with the supervisory power. It can and does operate outside of the confines of adjudication.

In this way, the supervisory power pushes court authority closer to what Kagan sees as an idealized notion of “bureaucratic legalism.”³¹⁴ In this non-adjudicative context, many of the formalities associated with adjudication—rules of evidence, civil procedure, etc.—are not applicable. Instead, the process is substantially less formal, bringing judicial interventions closer to what Kagan sees as a normatively desirable government concept he terms “political and expert judgment.”³¹⁵

And yet, even when courts do rely on the power in the course of resolving a dispute, it can overcome many of what Kagan sees as the problems with making policy through adjudication. Specifically, the structure of adjudication and corresponding formality of procedural rules results in parties seeking broad policy outcomes under the guise of narrow, highly technical legal questions. Here, too, this Article’s account of the supervisory power can address some of these critiques of judicial policymaking. For example, high courts can and do rely on the authority to reframe or expand the questions presented, override otherwise rigid procedural rules, and other features that might narrow judicial inputs. Further, courts can convene commissions or task forces to operate as enhanced evidence-gatherers to supplement a lone appellate record and better inform their decision-making.

As discussed above, the supervisory power helps illuminate the institutional posture of state high courts and the ways that they challenge some of the background assumptions we typically assign to “courts.”³¹⁶ Kagan’s critique further sharpens that point: generic concepts of what courts do do not map so easily on to state courts; and, with that, nor do some of the normative arguments against robust judicial policymaking roles in governance.

The supervisory power may also have normative consequences for a high court’s legitimacy.³¹⁷ The legitimacy of judicial policymaking is the subject of rich literature, but scholars’ central theses generally focus on the concept of unaccountable institutions wielding purely discretionary power to issue sweeping, final rulings on consequential issues of social policy.³¹⁸ In short, the legitimacy considerations turn on institutional aspects of courts and the nature of the power they wield.³¹⁹

As to structural factors, policymaking by courts is thought less legitimate because of how power is allocated between and among the branches. As courts wield their power in ways that look less and less like interpretation and adjudication, some scholars suggest we should be increasingly skeptical, since constitutional design is said to leave lawmaking to the other branches.

These are important considerations, but we should consider them in light of state constitutional structure. As Neil Komesar has shown, institutional evaluation does not proceed in a vacuum.³²⁰ In other words, a narrower view of state court power—that is, rejecting the account of supervisory power advanced in this Article as normatively undesirable—will likely result in enhancing legislative and gubernatorial power. Passively redistributing authority this way towards a generic equilibrium would be generally inconsistent with the deep skepticism of policymaking by legislatures and executives that animated modern constitutional development.³²¹ It could disrupt the allocation of policymaking directed to the judiciary. In short, state constitutional structure perhaps invites more judicial policymaking than our generic conceptions of institutional roles allow.

Moreover, the accountability of courts (or lack thereof, as is often the case at the federal level) often provides a basis for evaluating the legitimacy of their power. As discussed above, and well established in the literature, state courts are more democratic, more accountable, and subject to more horizontal checks than their federal counterparts.³²² For these reasons, normative critiques of judicial policymaking generally do not map well onto state courts, as these arguments are generally tailored to federal features (e.g., life tenure) or universal conceptions of courts.

Beyond these structural elements, normative evaluations of judicial policymaking often focus on the nature of the power itself and the content of the decisions it produces. On the latter, tired rhetoric, like “legislating from the bench” is well known. But it speaks to a more serious concern that courts are straying too far from devices we generally think of as providing some limitations on court power—text, interpretive canons, precedent, etc.³²³

However, these evaluations assume a certain universe of forms of judicial power—largely a binary between constitutional and statutory interpretation. For example, consider the Warren Court’s procedural revolution. The U.S. Supreme Court crafted a host of procedural rules and frameworks that largely enhanced protections for criminal defendants based on its interpretation of the Fourth, Fifth, Sixth, and Eighth Amendments. The critiques of decisions like Miranda and others are that they lack a basis in precedent and their rules cannot reasonably be squared with the underlying text.³²⁴ These cases affected the Court’s legitimacy because for critics, traditional constitutional adjudication required more fidelity to things like text and case law.

The supervisory power, however, is a decidedly different formulation of judicial authority. As discussed in greater detail in Parts I and II, it is ideally situated for the kind of decisional contexts that require more latitude and discretion than might be available under ordinary judicial review. In this way, the power’s very flexibility is what could make it a more legitimate alternative to otherwise conventional methods of power. Indeed, as a distinctive source of authority, the supervisory power offers an additional tool that can serve as an alternative to attempting to craft doctrinal rules or tests based on ill-fitting constitutional text or precedent or engaging in the debates over “lockstepping.”

Further, we might consider judicial policymaking undesirable because the resulting decisions are sweeping and final and often concern consequential issues of social policy. As a general matter, “state judicial review does not have the same finality” as its federal analogue.³²⁵ But more specifically, the supervisory power is understood as even less final than ordinary judicial review. Whereas the latter might be thought of as “a big red stop sign” to the other branches,³²⁶ use of the supervisory power is perhaps better thought of as an invitation to “dance,” as some former chief justices have put it.³²⁷ Indeed, justices have said implicitly and explicitly that a virtue of the supervisory power is its provisional nature.³²⁸ As Chief Justice Ellen Peters put it, relying on “supervisory authority leaves more flexibility for further input from all the interested constituencies.”³²⁹ In these ways, use of the supervisory power does not have the same aggrandizing effects as other formulations of judicial power that are said to risk a court’s legitimacy.

In sum, our evaluation of the supervisory power should account for two considerations. First, our evaluation should consider its potential for courts to advance their prerogatives and conflict with other branches, as well as its potential to facilitate their cooperation and coordination. Second, while the power is broad, flexible, and highly discretionary, it is subject to boundaries and rooted in both text and institutional context of state constitutions.³³⁰ Further, under a closer examination, we see that traditional arguments against judicial policymaking do not readily track the nature of the supervisory power and structure of state constitutions so easily. As a result, our evaluations of the supervisory power should proceed at the retail rather than wholesale levels. In other words, that courts use the supervisory power along the lines sketched in this Article should not per se raise normative problems. Rather, we should take each application on its own terms and consider it in the context of a court’s zone of supervision.

Conclusion

The state supervisory power enables supreme courts to wield conventional forms of their power with fewer constraints and to assert it in seemingly unconventional ways. This Article offers a descriptive and theoretical account of this important aspect of state supreme court practice—as well as a qualified normative defense of it. It shows that the supervisory power is an essential feature of judicial independence and the broader role of state supreme courts as agents of governance. This feature of state high court practice has been an essential aspect of state constitutional structure, before state high courts’ current moment in the spotlight³³¹ and will be after. To overlook this vital feature of state governance comes at our own peril, as state supreme courts are too important—and now more than ever—to overlook.

98 S. Cal. L. Rev. 1543

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Adam B. Sopko*

*Associate Professor, University of Colorado Law School. Aaron Caplan, Zach Clopton, Adam Crews, Colin Doyle, Marcus Gadson, Tara Grove, Andrew Hammond, Jon Marshfield, Tim Mulvaney, Jim

Pfander, Miriam Seifter, Dan Walters, Bob Williams, Abby Wood, Rob Yablon, Quinn Yeargain, and Adam Zimmerman provided helpful comments. The Article also benefited from discussions at the 2025 Emerging Scholars Conference in Public Law and the Brennan Center’s State Constitutions Lab. I am grateful to Wisconsin law students Mary Berg and Charlotte Gude for terrific research assistance. The editors of the Southern California Law Review provided superb editorial assistance. Thanks also to Sarah Alexander for the constant support and Hunter Sopko for the long weekend naps that made this Article possible.

Respecting Listeners’ Autonomy: The Right to be Left Alone

September 2025September 2025Ashutosh Bhagwat*

Introduction

The core of First Amendment free speech doctrine concerns the right of speakers to convey the message of their choice, free of repression or retaliation by the government. In addition, a small but significant body of law also addresses the rights of listeners to obtain access to information and speech in the face of coercive state measures seeking to deprive them of that access. Finally, there is also a well-established “compelled speech doctrine,” which addresses the right of speakers to resist government compulsions to speak—i.e., a right not to speak. This paper considers a question heretofore largely ignored by the courts, which is whether the First Amendment also protects a right against compelled listening.

As it turns out, a right against compelled listening raises complex and difficult questions because such a putative right in fact has two possible aspects to it. The first would be a First Amendment right not to listen that operates against the state, restricting the state’s power to force an unwilling listener to hear the state’s chosen message. Such a right must exist if public discourse among citizens is to play its democracy-empowering role (and also must exist under autonomy-based theories of free speech, for obvious reasons). But it is also, as we shall see, necessarily and distinctly limited.

But the more interesting questions raised by a right against compelled listening concern not disputes between listeners and the state, which are the subject of the classic First Amendment tradition, but rather disputes between non-state speakers and listeners, which the state must somehow accommodate or resolve. In these situations, in short, the question is whether the state may or may not enforce a listener’s desire to be left alone. Furthermore, while disputes strictly between private speakers and listeners of course do not themselves trigger the First Amendment because of the state action doctrine, when the state steps in to resolve those disputes, the First Amendment is very much implicated. This paper’s ultimate goal is to identify the state’s proper and constitutional role in those situations.

Part I briefly summarizes the classic First Amendment rights of speakers to speak and listeners to listen as against state coercion. It then examines the constitutional relationship between speakers, listeners, and their rights. Part II considers whether, just as the right to speak has been interpreted to generate a right not to speak, so too a right to listen should have the converse—a right not to listen. It further explores the two possible aspects of such a “right” described above,¹ and closes by considering the role of the state in the face of speaker versus listener disputes. Finally, Part III considers some doctrinal applications of a listener’s right to be left alone.

I. The Classic First Amendment

In this Part, we will very briefly consider the nature of “classic” First Amendment rights to speak and to listen, as against state coercion. We will then explore the relationship between those rights.

A. Speakers’ Rights and Listeners’ Rights

It is conventional wisdom that First Amendment law focuses almost exclusively on speakers and their “right” to speak, free from state interference. Even those of us who embrace instrumental justifications for protecting free speech, such as advancing democratic self-governance, nonetheless tend to fixate on speakers’ interests in contributing to public discourse when we analyze First Amendment conflicts. Indeed, the bulk of First Amendment doctrine, including the concept of unprotected categories of speech² and the foundational distinction between content-based and content-neutral laws,³ all concern government suppression of speech or speakers (often, but not always, speech or speakers the state dislikes).

One further point about the right to speak that should be a given: the right to free speech under the First Amendment must incorporate a right to generally choose one’s audience (though, of course, like any other right, this right is not absolute and might be outweighed by a sufficiently strong governmental interest). The right to choose an audience is implicit in the Court’s standard test to evaluate content-neutral “time, place, or manner” regulations, which requires inter alia that any regulation “leave open ample alternative channels of communication.”⁴ If such “ample alternative channels” referred to the ability to speak to any audience, the test would have no teeth at all—and that is not the case, as illustrated by numerous cases.⁵ Furthermore, in the leading case dealing with expressive conduct, a topic closely related to content-neutral restrictions on speech, the second Justice Harlan also went out of his way to state that he would not uphold a regulation of conduct with an “incidental” impact on expression if the law “in practice has the effect of entirely preventing a ‘speaker’ from reaching a significant audience with whom he could not otherwise lawfully communicate.”⁶

Admittedly, the courts have not been entirely consistent on this issue. Thus, there are undoubtedly some cases, especially in the lower courts, suggesting that denying a speaker the ability to reach a specific audience need not be fatal to a content-neutral restriction on speech.⁷ But this simply cannot be correct. For example, this would mean that during the 2024 presidential election, a prohibition on the Trump or Harris campaign advertising in a swing state such as Pennsylvania would be permissible if both candidates were permitted to reach alternative audiences in California and Texas. Such a result would make a mockery of the First Amendment (and democracy).

In addition to a right to speak, there is a well-developed body of doctrine protecting the right of listeners to access speech the state wishes to shield them from. The foundational case here is Lamont v. Postmaster General of the United States.⁸ In Lamont, the Court unanimously struck down a federal statute that required the Post Office to block the delivery of material determined to be “communist political propaganda” and only deliver the materials on the written request of the recipient (interestingly, Lamont was the first case in which the Supreme Court invalidated a federal statute on First Amendment grounds).⁹ Crucially, for our purposes, the basis of this holding was not the right of foreigners to mail communist propaganda into the United States, which almost certainly does not exist,¹⁰ but rather the First Amendment rights of addressees to receive information without impediment¹¹—a point Justice Brennan made explicit in his concurrence.¹²

If Lamont marks the origin of listeners’ right in the Supreme Court, their apotheosis occurred a little over a decade later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.¹³ There, prescription drug consumers challenged a Virginia ethical rule that barred pharmacists from advertising prescription drug prices.¹⁴ Because no pharmacist joined the lawsuit, the Court could only hear the merits if it recognized a First Amendment right on the part of listeners to receive information—which it explicitly did before holding for the first time that the First Amendment protected commercial speech.¹⁵

Finally, one additional case in which listeners’ rights were importantly implicated, though not central to the decision, is Red Lion Broadcasting Co. v. Federal Communications Commission.¹⁶ In Red Lion, the Supreme Court upheld the “Fairness Doctrine,” which was a federal regulation requiring radio and television broadcasters who broadcast a “personal attack” on an individual or group to provide airtime to the subject of the attack to respond.¹⁷ In doing so, the Court emphasized that in the context of broadcasting, because of the “scarcity” of available broadcast frequencies, speakers’ rights could not be the focus of attention.¹⁸ Instead, the Court said, “it is the right of the viewers and listeners, not the right of broadcasters, which is paramount” in assessing First Amendment challenges to broadcast regulations.¹⁹ So, like Lamont before it and Virginia Pharmacy after it, the Red Lion Court appeared to grant constitutional status to the First Amendment interests of listeners. Indeed, Red Lion was cited in Virginia Pharmacy for that proposition.²⁰

B. Of Speakers and Listeners

The Supreme Court has thus recognized robust First Amendment rights for speakers and listeners, but it has largely treated them as distinct rights—no doubt because in the two key listeners’ rights cases, Lamont and Virginia Pharmacy, willing speakers were absent from the litigation. But this approach cannot be correct. After all, what exactly is the point of “speaking” if no one is listening?²¹ It is true that some people keep private diaries or talk to themselves aloud—what is called “intrapersonal communication.”²² But there are reasons to doubt whether such audience-less “expression” falls within the First Amendment;²³ and in any event, it is certainly not the focus of most First Amendment jurisprudence or disputes. Normally, speech is meaningful, whether viewed from an instrumental or autonomy standpoint, if it has an audience. Admittedly, that audience need not be immediate or identifiable to the “speaker”; after all, we still read Shakespeare and Dickens. But reaching an audience is the point of communication. This is why in the area of expressive conduct, the Supreme Court has explicitly said that conduct is expressive—and so potentially protected by the First Amendment—only when “the likelihood was great that the message [intended to be communicated] would be understood by those who viewed it.”²⁴

Of course, in emphasizing the existence of listeners as necessary for speech to be meaningful, I am in some sense preaching to the choir here, since this symposium specifically focuses on listeners. But I would suggest that focusing on listeners in isolation is also a bit myopic, in the same way as a singular focus on speakers. Because just as speaking without an audience is meaningless, so too is listening without a speaker. What does it mean to speak about “listeners” and “listeners’ rights” while ignoring who the listener is listening to—who, in short, the speaker is? Yet in the few contexts in which the Supreme Court has actually considered listeners’ interests in First Amendment cases, that is largely what it has done.

Consider in this regard Virginia Pharmacy. The Court’s holding in that case that the First Amendment protects recipients of speech/information rather than just speakers, is now well-accepted; but in the context of that case, it is a bit odd. In recognizing the rights of recipients of information, the Court added a caveat that such rights exist “where a speaker exists, as is the case here,” citing to one page in the Stipulated Facts to support this assertion.²⁵ But given that pharmacists had not chosen to join this lawsuit and in fact had obvious, anticompetitive reasons to avoid advertising prices so long as their competitors did the same, the Court’s assumption that willing speakers already existed seems unjustified. Admittedly, once the advertising ban was struck down, it was likely that some pharmacists would choose to advertise drug prices, but whether that would benefit any individual plaintiff/listener was far from clear absent widespread advertising of drug prices.

The Court did somewhat better in analyzing the relationship between speakers and listeners in Red Lion. Unlike in Virginia Pharmacy, there is little doubt that Red Lion involved willing speakers—in the shape of the broadcasters themselves (the plaintiff in the case was, in fact, a broadcaster²⁶)—who would communicate to listeners/viewers. But by failing to seriously analyze both listeners’ and speakers’ interests and incentives in assessing free speech issues, the Red Lion Court created a conundrum. The Fairness Doctrine may have, in theory, advanced broadcast audiences’ interest in receiving balanced coverage of public issues, but it also incentivized broadcasters to avoid taking strong editorial positions on public issues other than anodyne centrist ones. Moreover, it disincentivized coverage of public issues in favor of generic entertainment, in order to avoid the strictures of the Fairness Doctrine.²⁷ But faced with this argument, the Court simply (and rather naively) deferred to the FCC’s views that the “possibility [of any such incentive effect] is at best speculative.”²⁸ Yet less than two decades later the FCC itself, in the course of repealing the Fairness Doctrine, concluded that the doctrine did in fact create substantial “chilling effects” because “the fairness doctrine provides broadcasters with a powerful incentive not to air controversial issue programming.”²⁹ Of course if this was true—as is likely—then without speakers, listeners during the Fairness Doctrine era were necessarily left (so to speak) in the dark regarding public policy controversies. So again, by failing to seriously analyze both sides of the communicative relationship, the Court effectively harmed both speakers and listeners.

The point of this discussion is not to suggest that listeners/audience members lack meaningful First Amendment interests—of course they do. It is merely to suggest that discussing listeners’ interests and “rights” without also considering who the relevant speakers might be produces a deeply incomplete, and sometimes meaningless analysis. Expression, in short, is not a solitary activity on either side of the speaker/listener coin. It is a joint activity, a form of interpersonal interaction or association between speakers and audiences. It is relational in nature. The First Amendment, after all, does not protect “the right to speak” or “the right to listen;” it protects “the freedom of speech.”³⁰ By focusing on individual “rights,” however, whether of speakers or listeners, courts and commentators have failed to recognize the relational nature of that freedom.

II. A “Right” Not to Listen

Until now, we have generally considered the nature of First Amendment speakers’ and listeners’ rights and their interrelationship with each other. We will now apply those insights to considering what exactly it is that the First Amendment protects vis-à-vis listeners, focusing in particular on a putative right to not listen to unwanted speech.

In considering this issue, it is important to bear in mind a structural point. Most First Amendment law addresses the relationship between speakers or listeners on the one hand, and the state on the other. The question in those cases is what limits there are on the state’s right to coerce speakers or listeners. That is where our discussion will begin, by examining rights not to speak, and not to listen, as against the state. But for reasons already discussed, “the freedom of speech” also implicates another key relationship: that between speakers and listeners. Important and difficult First Amendment questions arise about the nature of and limits on the state’s power to regulate that relationship. These are the topics of Parts II.B and II.C.

A. Converse Rights: Speakers and Listeners v. The State

As we have seen, the First Amendment famously protects the right of speakers to express the message of their choice, free from state interference. But the Court has also interpreted the First Amendment to protect a converse right—to not be compelled to speak against one’s will.³¹ The right against compelled speech was first recognized in the Supreme Court’s famous decision in West Virginia State Board of Education v. Barnette,³² in which the Court struck down a requirement that public school students participate in a flag salute that was challenged by school children whose beliefs as Jehovah’s Witnesses forbade them from participating. Barnette thus established that the positive First Amendment right to speak was paired with a negative right not to speak.

While the right against compelled speech was originally a relatively narrow and circumscribed right, in recent years, the Supreme Court has expanded its scope significantly. For example, in the 2018 case National Institute of Family and Life Advocates v. Becerra (“NIFLA”), the Court invoked the right to strike down a California statute that required so-called “crisis pregnancy centers”—medically licensed facilities run by abortion opponents who provide medical services to pregnant women—to post notices informing patients that the State of California provided funding for low- or no-cost abortions (and other family planning services) to eligible women.³³ While the NIFLA case raised many complex issues, such as whether “professional speech” received lesser First Amendment protection,³⁴ the core holding was that the required notice violated the First Amendment.³⁵ Importantly, in NIFLA, the majority blurred the distinction between the positive right to speak and the negative right against compelled speech, by holding that “compelling individuals to speak a particular message . . . ‘alte[rs] the content of [their] speech.’ ”³⁶ As such, the Court suggested that in future compelled speech cases it would apply strict scrutiny, the test it uses for content-based restrictions on speech—something the Court had not done with any consistency prior to NIFLA.³⁷

Another even more striking example of the extension of the compelled speech doctrine is 303 Creative LLC v. Elenis.³⁸ In that case, the Court held that a wedding website designer could refuse to work for same-sex couples, in violation of state antidiscrimination law, because to force her to do so would “compel speech [the designer] does not wish to provide.”³⁹ Thus, even in a situation in which a person is engaging in a commercial enterprise and providing services for payment, the Court has found that the compelled speech doctrine provides robust protections.

Of course, even in the current era, the right against compelled speech is not absolute. Most notably, the Court has indicated that in the context of commercial transactions, the First Amendment does not prohibit requiring “the disclosure of ‘purely factual and uncontroversial information about the terms under which . . . the services will be available.’ ”⁴⁰ More broadly, the Court has said that “health and safety warnings long considered permissible” remain constitutional⁴¹ and that the speech of professionals may be regulated as an incidental aspect of regulating professional conduct.⁴² In these contexts, current doctrine recognizes that listener interests can sometimes trump a speaker’s interest against compelled speech. But in the realm of ideological and cultural speech, the Court’s rule against compelling expression has come to be well-nigh absolute.

Given the robustness of the modern right against compelled speech, should the First Amendment also be understood to protect a robust right not to listen? Given the general symmetry between speaker and listener rights and their interlinked, relational nature, the answer would seem to be yes. Once the relational nature of “freedom of speech” is recognized, there is no logical reason to grant speakers greater rights than listeners; they are, after all, engaged on equal terms in a joint project—though, to my knowledge, the Court has never addressed the issue.

Moreover, not recognizing a right not to listen would have catastrophic implications for both autonomy-based and instrumental understandings of the purpose of free speech protections. The autonomy point is obvious—it is hard to imagine a greater intrusion on autonomy than forcing an individual to listen to speech they wished to avoid. But the implications for instrumental, democracy-based models of free speech are equally obvious. After all, if an incumbent government party or official can force voters to listen to the party’s propaganda but not their opponents’ propaganda, it is hard to imagine how any subsequent political election could be deemed fair or legitimate. More fundamentally, the shape and content of the public discourse essential for democracy must be under the control of the public, not the government, if popular sovereignty is to have any meaning.

It should be noted, though, that in practice, a right not to listen as against the state, while it must be real and robust in certain spheres—notably public discourse—has significant limits. The government in fact forces us to listen to messages of its choosing all the time as a condition of engaging in certain activities—often while also compelling the relevant speech. Every time one gets on a plane, one is forced to listen to a federally mandated safety announcement (and airlines are required to communicate them). Employees are forced to suffer through state-mandated trainings, such as sexual harassment trainings, all the time (and employers are required to provide them). My own employer, the University of California—a state entity—is particularly training-happy. Safety instructions are required for employees in many hazardous industries—and so on ad infinitum. But within the core First Amendment domains such as public discourse and artistic/literary expression, a very strong right not to listen—which can be offset only by the weightiest state interests—must exist. The only reason it has not been recognized, it would seem, is that governments appear to assume the existence of such a core right and so stay clear of it.

B. Relational Rights: Speakers v. Listeners

While a right not to listen as against the state seems clearly justified by basic First Amendment principles, much harder questions arise when we consider the nature of a right to be left alone in the context of the relationship between speakers and listeners. If individuals have a right not to listen to a message the state seeks to foist on them, what about a message that a private speaker wishes to force them to absorb?

Four Scenarios

To understand the nature of the relationship between speakers and listeners, it is worth considering four different scenarios. In the first, both speaker and listener are willing, and wish to communicate. That is the core of First Amendment law, in which the only question is state power to coerce—when coercing either speaker or listener necessarily coerces the other. A second scenario is when neither speaker nor listener is willing or desirous of communicating. In that situation, state interference would be fairly bizarre, except under specific regulatory circumstances, such as safety videos on airlines or workplace trainings, both situations in which neither the speaker nor listener has a choice not to participate. Indeed, the fact that we sometimes compel both speech and listening is a further indication of how speaker and listener interests are intertwined.⁴³

The difficult question arises when speakers and listeners disagree. When a listener wishes to hear a message but a speaker does not wish to speak, the compelled speech doctrine, when applicable, prevents the government from intervening on behalf of listeners. Of course, the compelled speech doctrine does not always protect speakers. As noted earlier, within the commercial sphere, disclosure requirements are ubiquitous and intended to protect listeners—presumably McDonald’s doesn’t really want to tell customers how many calories are in a Big Mac, no matter how much the customers need or want to know. But in the sphere of political and cultural speech, the speaker’s wishes will generally prevail given the strength of the modern compelled speech doctrine.⁴⁴ Nor of course can listeners engage in self-help, since physically forcing another to engage in expression is generally tortious and/or criminal conduct.

But what about the opposite situation, when a speaker wishes to speak, but their chosen audience does not want to hear their message? In that situation, does the listener have a comparable ability not to listen, as the speaker does not to speak? Note that unlike forcing someone to speak, addressing words at an unwilling listener is not inherently illegal or tortious, so speakers can—and often do—engage in “self-help” in those circumstances by foisting unwanted speech on listeners. The question is: what is the appropriate role of the government, and in particular, can the state protect listeners from unwanted speech? Oddly enough, the Supreme Court has barely addressed this question directly, and insofar as it has done so, it has suggested that the answer is no by giving little weight to listeners’ interests.⁴⁵

The most significant case to this effect is Cohen v. California.⁴⁶ In Cohen the Court, in a famously eloquent opinion by Justice Harlan, reversed Cohen’s conviction for wearing a jacket into a courthouse with the words “Fuck the Draft” written on it.⁴⁷ The case is generally understood to hold that non-obscene but offensive or indecent speech is protected by the First Amendment. But in the course of so holding, the Court had to address the objection that Cohen had “thrust [his speech] upon unwilling or unsuspecting viewers” and that the government had the right to shield that audience from offense.⁴⁸ The Court’s response was that absent an “intrusion in to the privacy of the home,” the only remedy for offended viewers was “averting their eyes.”⁴⁹ The Court failed, it should be noted, to explore how that remedy would work with respect to oral speech.⁵⁰

A more recent decision involving highly offensive speech, Snyder v. Phelps,⁵¹ adopts a similar tone. In Snyder, members of a church (the Westboro Baptist Church of Topeka, Kansas) repeatedly protested at military funerals to publicize their belief that God was punishing the United States for its tolerance of homosexuality, especially in the military.⁵² After one such protest, the father of the fallen soldier whose funeral the church picketed sued the church and its members for intentional infliction of emotional distress and after trial, won a significant verdict.⁵³ But the Supreme Court, by an 8-1 vote, reversed. It held that because the protesters’ speech was “on a matter of public concern,” the First Amendment flatly precluded imposing liability based on the offensiveness or hurtfulness of the speech.⁵⁴ And crucially for our purposes, when confronted with an argument based on the enormous (and uncontested) emotional harm that the protesters’ choices imposed on the father, the Court responded as follows: “But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a ‘special position in terms of First Amendment protection.’ ”⁵⁵ In other words, the Court’s view was that at least in the public forum, the rights of offensive speakers almost always trump those of offended listeners. Nor are Cohen and Snyder alone in holding that at least in public places, offended audiences must bear the significant burdens and costs of offense.⁵⁶

The only nod the Court has given towards the notion that audience members have some interest in avoiding unwanted speech can be found in the so-called “captive audience” doctrine. In theory, the captive audience doctrine provides that when speech is being forced upon listeners who cannot reasonably avoid it, the government may step in and silence the speech.⁵⁷ And famously, in 1974 in the Lehman v. City of Shaker Heights decision, the Court—albeit in a splintered opinion—applied that doctrine to uphold a municipal regulation that refused to accept political advertising in the interior of buses and street cars, even though other advertising was accepted.⁵⁸ But in fact, a closer look shows that since 1974, the so-called “captive audience” doctrine is more bark than bite.

It is true that in a handful of cases, the Court has invoked concepts of captive audiences to uphold restrictions on speech. Thus in Rowan v. United States Post Office Department, the Court cited the captive audience doctrine in upholding a law that permitted mail recipients to refuse to accept more mail from a particular sender.⁵⁹ Similarly, in F.C.C. v. Pacifica Foundation, the Court justified a restriction on daytime broadcasts of “indecent” materials in part on the theory, citing Rowan, that broadcasting invades the home.⁶⁰ And perhaps most famously, in Frisby v. Schultz, the Court upheld a municipal prohibition on targeted, residential picketing on the basis of the state’s strong interest (citing both Rowan and Pacifica Foundation) in shielding individuals from unwanted speech in their homes.⁶¹ However, all of those cases involve the home, where special privacy considerations (quite aside from the First Amendment) obviously exist. Outside of the home, Lehman remains the only significant precedent applying concepts of “captive audiences,” and truth be told under the modern (post-1974) public forum doctrine, concepts of captive audiences are likely unnecessary to uphold the City of Shaker Heights’s subject-matter-based, but viewpoint-neutral, restriction on speech in a nonpublic or limited public forum.⁶²

The Court’s decision in Snyder also supports the proposition that the captive audience doctrine has, in recent years, been limited to the home. When the plaintiff in Snyder raised a captive-audience argument in favor of restricting the Westboro Baptist Church’s funeral protests, the Court dismissed the idea that a father might be a captive audience at his son’s funeral by invoking Cohen’s holding that the burden was on Mr. Snyder to “avert[] his eyes.”⁶³ When posed with a captive-audience argument, the Snyder Court strongly suggested that that doctrine was largely restricted to speech intruding into the home, citing Rowan and Frisby.⁶⁴ It is true that in its discussion the Court also referred to the fact that when driving to the funeral, Snyder could only see the tops of Westboro’s signs;⁶⁵ but, there is no indication in the Court’s opinion that the result would have been different if Snyder had seen the signs, so long as the Westboro demonstration did not actively interfere with or disrupt the funeral.

Why is it that a Court that is so ready to recognize a robust right not to speak—one that operates against the state and listeners—seems to be unaware of the possibility of a similar right not to listen (at least outside the listener’s home) as against insistent speakers? The answer, I would posit, lies in the much-neglected interaction between speakers’ and listeners’ rights. In particular, recognizing a right not to listen raises the problem of how to reconcile a speaker’s interest in reaching a particular audience, with a listener’s interest in not being part of that audience. Moreover, the leading scholarly discussion of a putative right not to listen similarly adopts a unilateral rather than a relational approach.⁶⁶ In that article, Caroline Mala Corbin makes a compelling case, based both on the autonomy interests of listeners,⁶⁷ and on more instrumental concerns about democratic self-governance,⁶⁸ for a First Amendment right not to listen, and I am happy in this article to accept and build upon that analysis. But she does not address the implications of such a right for the corresponding rights of speakers, or the relationship between what she treats as independent rights of speakers and listeners. We will therefore turn to that issue next.

A Right to Be Left Alone

In evaluating the nature of a right not to listen as against speakers, the crucial initial insight is that when a listener positively objects to being exposed to the speaker’s message, a conflict arises between a speaker’s right to choose her audience, and a listener’s right to choose her speakers/messages. In that situation, the Supreme Court, in cases such as Cohen and Snyder, seems to assume that unless the speaker and speech are intruding into the home, a speaker’s interest in expounding her message to any and all must prevail over a listener’s desire to not listen, and to be left alone. But the Court gives no explanation in any of these cases for why this is so, other than generalized references to the need for robust public discourse. And because the Court has never addressed, much less recognized, a right not to listen outside the home, it does not seem to realize that the situation potentially poses a problem of competing constitutional interests, not just a speaker’s right prevailing over general societal interests. But in fact, for all the reasons already stated there are strong reasons to recognize constitutionally grounded listeners’ interests in such contexts, which makes some effort towards reconciliation necessary.

In seeking to reconcile speakers’ and listeners’ rights when they potentially conflict, it is absolutely essential to recognize the deeply interrelated nature of those rights—something the Court has failed to do. As discussed earlier, speakers and listeners are just two sides of the same expressive coin; indeed, it might be said that there are not two rights at issue here, but rather one joint right to engage in/receive expression. But as in so many other situations, when joint rights holders—or for that matter, joint property owners—disagree, resolving such conflicts is extremely difficult.

Nonetheless, recognizing the joint roles of speakers and listeners in expression does lead to some important insights. Most importantly, recognizing the relational nature of freedom of speech strongly suggests that there is little to no social value associated with speakers who address specific listeners against their will. But even here, an important distinction must be made. When unpopular or even deeply offensive ideas are expounded as a part of what I will call “one-to-many” speech, which is to say speech that is available to the public or significant portions of it,⁶⁹ speakers’ rights must normally prevail over listeners’ rights.⁷⁰ The reason is that in that situation, permitting listeners to prevail would scrub public discourse of unpopular ideas, a result which is anathema to the First Amendment. Put differently, permitting individual listeners to invoke a right not to listen to shut down one-to-many speech would amount to an impermissible heckler’s veto.

The analysis is very different, however, when dealing with one-to-one or one-to-a few speech. When speakers address unwilling, individual listeners who have expressed their desire not to be spoken to, the primary goal of continued speech is often no longer to convince or to add to the putative “marketplace of ideas.” It is rather to inflict harm on the listener/victim. As such, it has no legitimate claim to First Amendment protection in light of the greatly diminished speaker interests and very strong listener interest in not listening. It is this principle that led the Court to uphold a ban on targeted, residential picketing in Frisby v. Schultz, while clarifying that a ban on non-targeted residential picketing would almost certainly be invalid.⁷¹ The Court seemed to be assuming, reasonably in my view, that targeted picketing was overwhelmingly likely to be one-to-one speech, while nontargeted picketing was one-to-many. Its error was to assume in Frisby and other captive audience cases that a listener’s interest in avoiding one-to-one speech is limited to the home.

The very idea that speakers have some sort of First Amendment right to thrust their speech on unwilling listeners is based on a rigid, “individual rights” based approach to First Amendment analysis, which does not sufficiently account for complexity. Once one recognizes the interpersonal and associational nature of communications as a joint enterprise between speaker and audience, it should be obvious that no speaker has a “right” to thrust their views on unwilling audience members any more than an individual has a right to insist on joining a First Amendment association in which they are not welcome.⁷² To posit such a right—as the Supreme Court appears to in cases like Cohen and Snyder—is to posit a personal right on the part of individuals to try to persuade or convert other individuals to the speakers’ beliefs against their will, not as a part of public debate and discourse, but as a part of a personal conversation.

But where could such a right possibly arise from? If, as I have posited, the “freedom of speech” protected by the First Amendment is an interpersonal, relational concept, then the right surely does not arise from the First Amendment. After all, we do not understand any constitutional right to encompass an entitlement to coerce others—the Second Amendment may protect gun ownership,⁷³ but it does not protect the stick up. And it must be remembered that the First Amendment only protects speakers from censorship or silencing by the state, not from censorship by other private individuals.⁷⁴ Recognizing this seemingly mundane point, however, points a way towards how we might reconcile a posited right to be left alone with a speaker’s right to their chosen audience, all the while bearing in mind important First Amendment limits on state power.

C. Reconciliation: The State as Referee

What then, is the role of the government when a speaker seeks out a specific audience, but that audience is not willing to listen? And in particular, because (as noted earlier) listeners have a limited ability to engage in self-help (at least outside the home) vis-à-vis a persistent speaker, is there a role for the government in empowering unwilling listeners?

In that regard, one conclusion follows easily from basic First Amendment principles. Because “above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,”⁷⁵ it is clear that the government may not itself decide, purportedly on behalf of unwilling listeners, that speech of a specific content or viewpoint will be unwelcome. That role lies solely with the listeners themselves, and for the government to take on the role of proxy censor could very easily become a vehicle for censoring speech the government itself disfavors. Indeed, even when empirically it seems very likely that a targeted audience will not want to be exposed to particular speech—for example, anti-abortion speech directed at abortion clinic patients, or anti-military protests directed at attendees at a military funeral—it remains true that the government’s role cannot be to silence the speech on the assumption that it will be unwelcome. This is why the rule against content discrimination remains in place, and should remain in place, even in particularly sensitive situations such as the home, reproductive health care facilities, and funerals.

That said, however, once one recognizes that speakers have no First Amendment right, free of government regulation, to foist themselves upon unwilling listeners—and indeed, that listeners do have legitimate interests in avoiding undesired speakers or content—it seems clear that the government has a legitimate role to act as facilitator, assisting listeners to invoke their “right” to be left alone—or perhaps better put, their desire not to engage in a communicative relationship with a particular speaker. For that reason, there should be no constitutional problem with the state creating mechanisms that enable listeners to communicate to speakers that they desire to be left alone. There should also be no First Amendment barrier, assuming the listener(s) do invoke their First Amendment interest in being left alone, to the government penalizing a speaker who nonetheless persists in pursuing their unwilling victims. In that situation, the speaker has no First Amendment rights at stake, so a penalty is perfectly constitutional.

To be clear, the government has no obligation to create such a mechanism. Since unwilling listeners have no First Amendment rights against private speakers, they have no constitutional claim to be left alone. But what should be recognized is that in the context of willing speakers and unwilling listeners, or vice versa, given the relational nature of the “freedom of speech,” neither party has a constitutional right at stake, and so some forms of government interventions should not be barred.

Putting this insight in doctrinal terms argues for the courts to recognize a separate category of unprotected speech that is based not on the unprotected content of the speech (as with obscenity, “true threats,” etc.), but on the fact that it is foisted (exclusively) upon unwilling listeners after they have invoked their desire not to listen. Whatever one calls this category—harassment, stalking, or something else—it would permit punishment by the state purely upon proof that the speaker was made aware of their audience’s desire not to listen but nonetheless continues to communicate.

Needless to say, however, for reasons already discussed, any mechanism designed to protect listeners’ desires to be left alone cannot be invoked in one-to-many speech situations, in which there are other, willing listeners in the broader audience who would be deprived of their access to speech. In this situation, “freedom of speech” does exist, and so silencing the speaker will violate both the speaker’s and the willing listeners’ First Amendment rights. And because the First Amendment presumptively favors speech over silence, it clearly cannot permit letting some unwilling listeners’ rights to trump two other sets of rights.⁷⁶ Note that with respect to speech occurring in open public dialogue, such as public protests or speech in the media (including social media platforms), there will essentially always be some willing listeners in the audience, and so recognizing a right to be left alone would never result in suppressing such speech. In other words, recognizing a constitutionally based interest in being left alone has little or no implications for broad, public debate. Importantly, this ensures that all individuals, even the most irascible, will regularly be exposed to viewpoints they reject, and so will have the opportunity to change their minds.

Note that under this view, Snyder v. Phelps was correctly decided. The speech in that case, a public protest by the Westboro Church was a form of one-to-many speech, not speech directed solely or mainly at the victim. Indeed, as noted earlier, the plaintiff in that case, the grieving father, did not even see the signs at the time of the protest.⁷⁷ In that situation, it was impermissible for the state to silence the speakers in order to protect Snyder’s desire to be left alone, because the result would be to silence protected speech as to other listeners. The Pacifica Foundation Court, however, was wrong to uphold the FCC’s restrictions on indecent broadcasting, at least insofar as it relied on the existence of unwilling listeners, because radio broadcasts are a classic form of one-to-many speech (whether protecting children might separately support the rule is a different matter).

Therefore, a right of listeners to be left alone should not impact public debate or cleanse it of unpopular or offensive ideas. In the context of privately communicated speech, however, the implications of the above analysis are significant. It means that individuals who insist on repetitively speaking to their chosen audience/victim(s) after the listener has invoked their right to be left alone have no First Amendment rights—and so can be prosecuted without raising constitutional concerns. It also means that in a myriad of other situations in which the Court has suggested that the burden must be on listeners to avert their eyes, move on to another place, or simply suffer, the state has a legitimate role to play in reducing that burden so long as it does not impact public debate.

Developing a specific legislative proposal for how state or federal laws might assist unwilling listeners in protecting their desire to be left alone is beyond the scope of this paper. It should be noted, however, that some such mechanisms already exist and have been endorsed by the courts—though they all, unsurprisingly, involve the home. Thus in Martin v. City of Struthers, the Court struck down a city ordinance banning the door-to-door distribution of literature, primarily on the grounds that the city could have achieved its goal of protecting tranquility in the home with narrower means such as a model ordinance that “would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed.”⁷⁸ This approach was preferable, the Court said, because such a law “leaves the decision as to whether distributors of literature may lawfully call at a home where it belongs—with the homeowner himself,”⁷⁹ which in the language of this essay means in the hands of the unwilling listener. The Court’s decision in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, recognizing a home “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors,”⁸⁰ is to similar effect. The ordinance upheld in Rowan⁸¹ permitting mail recipients to refuse to receive additional mail from unwanted mailers is as well.⁸²

It is true, of course, that it is much easier to put up an outdoor “No Solicitation” sign at one’s home—the remedy endorsed in Martin and Watchtower Bible—than in public places. But given the above analysis, there is no good reason to limit the principle established in these cases to the home. Moreover, it is not hard to imagine a law stating that when an individual is addressing another and the listener uses unambiguous language indicating an intent to be left alone, such as “please stop talking to me,” “I don’t want to hear this,” or “leave me alone,” the speaker then will have a legally enforceable obligation to stop speaking to that individual (but not to others, so in one-to-many situations this law would have no impact).

Some clarifications are necessary, however. First, at least outside of the home, invoking the right to be left alone cannot be indefinite—any statute protecting that right must specify a time period after which the invocation expires and has to be re-invoked.⁸³ That caveat, like the continuing protection for one-to-many speech, leaves open the possibility that unwilling listeners can and will sometimes change their minds. Further, the period after which invocation by unwilling listeners expires may well vary with circumstances—and again, any statute addressing this issue must specify that. And in this respect, homes are arguably special. No Solicitation signs outside one’s home constitute essentially permanent invocations—though signs can of course be taken down—as did the request to stop mail upheld in Rowan, though of course that too could be revoked. In some settings such as online interactions, one can imagine invocations lasting for weeks or months. But in personal interactions, it might well be reasonable to require reinvocations every hour or two. Details such as these are for legislatures to work out, the results of which should be due a good deal of deference from courts.

To be sure, in evaluating situations in which a speaker’s desire to communicate collides with their audience’s wishes not to be communicated to, and the state has stepped in to protect the listener, courts must tread with caution, bearing in mind the following considerations. First, it is inevitable that the government—in the shape of both legislatures and executive enforcers—will sometimes manufacture unwilling listeners as a tool to silence speech that the government itself objects to. Therefore, courts must examine any listeners’ rights laws carefully to smoke out such censorship (most obviously by insisting that the listener, not the state, identify unwanted speech). In addition, courts themselves must be cautious to not permit their own instincts as to what constitutes “undesirable” or “offensive” speech to color their decisions, by finding listener objections when none truly exists. Thus courts must insist that any enforcement of a listener’s right to be left alone must be accompanied by a clear and unambiguous invocation of that right by the rights-holder themselves.

In short, there are details to be worked out, and there are undoubtedly complexities raised by attempts to legally empower listeners to avoid unwanted speech, especially outside the home. But the crucial point is that there should be no First Amendment objection to government efforts to so empower listeners—with all the caveats laid out above, including in particular the point about one-to-many speech. There are statutory mechanisms available that could achieve those goals. Indeed, as the next Part discusses, some such mechanisms are already in place whose constitutionality has been questioned but should not be, albeit perhaps after some changes are made to reflect concerns discussed above.

III. Applications

In this Part, we will consider some practical applications of listeners’ rights to be left alone in areas where divisive litigation has been common and courts have struggled mightily to craft consistent and facially plausible solutions.

A. Counterman, Stalking/Harassment, and Fighting Words

The most obvious area in which the above analysis has application is the status under the First Amendment of laws regulating harassment and stalking. The Supreme Court considered this issue in its recent decision in Counterman v. Colorado,⁸⁴ but because the majority completely failed to consider listener interests in its analysis, and as a result failed to distinguish between “threats” cases (which involve the fear of violence) and harassment/stalking cases (which involve unwilling listeners), Justice Kagan’s majority opinion frankly botched the analysis.

Counterman involved a criminal prosecution arising out of a deeply disturbing set of facts. The defendant, Counterman, repeatedly sent Facebook messages to C.W., a local musician whom he had never met.⁸⁵ Some were prosaic, if bizarre (since they were from a stranger), but others were menacing.⁸⁶ Ultimately, Counterman was convicted under Colorado’s anti-stalking statute, the relevant part of which makes it a crime to “repeatedly . . . make any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”⁸⁷ The Colorado courts rejected Counterman’s First Amendment defense on the grounds that his speech constituted unprotected “true threats,” applying an objective definition of a threat as speech which a reasonable person would view as threatening.⁸⁸ The Supreme Court, however, reversed. In a majority opinion by Justice Kagan, the Court held that to prosecute a true threat, the First Amendment required proof of a subjective mental state, in particular recklessness, meaning that the speaker acted with conscious disregard of the risk that the speech at issue would instill fear in the victim.⁸⁹

What is truly odd about this analysis is that Counterman was not actually a case about threats at all; it was a case about unwanted speech. While some of Counterman’s messages may have been threatening, the harassment and stalking aspects of his awful behavior were not dependent on that—they would have existed even if all the messages were prosaic. The Colorado courts presumably applied the true threat doctrine because they reasonably believed that to uphold Counterman’s conviction, they had to pigeonhole it into a category of “unprotected speech” that the Supreme Court had previously recognized, and true threats is such a category.⁹⁰ Indeed, as Genevieve Lakier and Evelyn Douek explain, since the Supreme Court’s pathbreaking 2010 decision in United States v. Stevens sharply limiting the power of courts to recognize new categories of unprotected speech,⁹¹ lower courts have been able to uphold anti-stalking legislation only by characterizing the speech at issue as falling within an already recognized category of unprotected speech—generally either “speech integral to criminal conduct” or “true threats.”⁹² Eugene Volokh similarly argues that under current law, lower courts cannot treat “harassment” as unprotected speech unless it falls within a category such as threats—a position that Justice Alito took in an opinion predating his elevation to the Supreme Court, which has been followed by numerous other jurisdictions.⁹³

All of which is well and good—but it has no relevance to the Supreme Court itself, which of course does have authority to expand the realm of unprotected speech. Even if Stevens indicates that the Court will not recognize new categories of unprotected speech based on the content of the speech absent a historical tradition,⁹⁴ it certainly does not close the door to recognizing factors other than content that might take speech outside of First Amendment protections—such as its unwanted nature. The Supreme Court had an opportunity to recognize such a category in Counterman but failed to do so because it failed to distinguish harassment and stalking from threats.⁹⁵

It is quite possible that the Court’s failure to consider harassment/stalking as a separate speech problem from threats was because that is how the parties to the litigation (and the lower courts) posed the issue. But by analyzing the case as it did, the Court has created a serious risk that moving forward, lower courts will treat harassment and stalking issues as co-extensive with the threats doctrine, thereby ignoring the implications of Rowan and the right to be left alone.⁹⁶ If the Court had analyzed the case properly, it would have recognized that because Counterman’s speech was unwanted, and because his victim had invoked her right to be left alone, as she did in that case by repeatedly blocking Counterman on social media,⁹⁷ the existence of a threat was irrelevant. Counterman’s expression was a classic case of repeated infliction of unwanted speech in a one-to-one context, and so there should have been no barrier to his prosecution under a properly drafted statute—though it is unclear whether the actual Colorado statute in that case satisfied those standards.

Nor are the implications of paying attention to listeners’ interests limited to stalking. Most obviously, laws designed to enable listeners to enforce their right to be left alone, such as the Federal Trade Commission’s Do Not Call Registry, are clearly constitutional on this view.⁹⁸ Similarly, prohibitions on telephone or other harassment under which penalties are triggered when the victim communicates their desire to be left alone also pose no constitutional concerns.⁹⁹ More generally, recognizing that speakers have no First Amendment interest in forcing speech onto unwilling listeners opens the door to a wide range of regulations addressing such things as email spam, spam texting, and even junk mail (following in the footsteps of Rowan).

Consider also harassment litigation arising out of campus protests regarding the Gaza war,¹⁰⁰ or complaints by members of Congress that by failing to control such protests campuses permitted harassment of Jewish students.¹⁰¹ Insofar as these harassment claims are rooted in one-to-one speech, such as following students around and yelling slurs or otherwise directing hostile speech at individual students who have demanded to be left alone, the First Amendment under the above analysis provides no protection to such speech. (Whether universities have a legal obligation to protect victims from such speech is, of course, a different matter.) On the other hand, to the extent that claims of harassment are rooted in slogans yelled during protests such as “From the River to the Sea,” which many people consider antisemitic, or the allegedly antisemitic content of signs, this is classic one-to-many speech which cannot be condemned purely because of its unwanted nature; indeed, at least with respect to public universities silencing such speech, it would almost certainly constitute viewpoint discrimination in violation of the First Amendment. The same would be true even regarding calls for genocide that Republican members of Congress such as Elise Stefanik complained about,¹⁰² since such calls surely would not qualify as unprotected incitement under the stringent test of Brandenburg v. Ohio.¹⁰³ After all, for better or for worse, there is no “awful speech” exception to the First Amendment.

Finally, consider the “fighting words” doctrine. In its 1942 decision in Chaplinsky v. New Hampshire, the Court held that so-called “fighting words”—which is to say curse words or insults delivered in person—are not protected by the First Amendment.¹⁰⁴ This holding is rooted in assumptions that fighting words are likely to trigger a violent response from their target, and that such a response would be justified.¹⁰⁵ The fighting words doctrine has been subject to sharp criticism,¹⁰⁶ but the Court has yet to abandon it. In truth, though, the assumptions underlying the doctrine seem seriously outdated, and are also highly gendered, based as they are on a “real men” ethos. Based on the reasoning of Chaplinsky alone, therefore, the doctrine probably should be overruled.

On the other hand, it seems likely that in most circumstances fighting words are going to be unwanted speech, from the listener’s perspective. Furthermore, the typical fighting words situation involves one-to-one speech (indeed, it is doubtful if the fighting words doctrine would apply to one-to-many speech).¹⁰⁷ If, however, a target of fighting words expresses to the speaker a desire to be left alone, then any subsequent speech by that speaker would, under my approach, violate the right to be left alone, and so become unprotected. Admittedly, this approach to fighting words does not address the “first blow” of curse words spoken only once; but it does have the advantage of not resting on dubious assumptions.

B. Hill, McCullen, and Avoiding Offense

Another area in which conflicts between speakers and listeners regularly arise is in the context of protests and other expression near health care facilities that provide abortion services. The difficulty arises because on the one hand, the speech of protestors and others—whether pro- or con-abortion rights—is obviously speech on important, controversial, and politically charged topics, and so receives the highest level of First Amendment protection. But on the other hand, it seems reasonable to assume that most members of the audience for this speech—who are overwhelmingly employees or patients of the relevant clinics—would prefer not to hear the speech, sometimes strenuously so. Therefore, courts and legislatures struggle with how to address these conflicts.

While First Amendment cases involving speech near abortion clinics, even in the Supreme Court alone, are myriad, I will focus my discussion on two of the most important and controversial of them. The first is Hill v. Colorado.¹⁰⁸ Hill involved a challenge to a Colorado statute that limited speech within one hundred feet of the entrance to a healthcare facility.¹⁰⁹ In particular, the law prohibited any person within that area from approaching within eight feet of another person without their consent “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”¹¹⁰ Characterizing the issue before it as whether this law “reflects an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners,”¹¹¹ the Court ultimately upheld the statute. In doing so, the Court relied heavily upon the government’s interest in protecting an “unwilling listener’s interest in avoiding unwanted communication,” citing Frisby and Rowan.¹¹²

Justice Scalia’s dissent took sharp issue with this reasoning. He argued that because the Colorado statute was based on the assumption that only speech within the statutory prohibition—“protest, counseling, and education”—was likely to be unwelcome, the law was content-based and so invalid.¹¹³ At least as to this point, it should be noted, Justice Scalia’s argument is entirely consistent with my analysis set forth above (and concomitantly, the majority’s is not). The State may not decide for itself what speech is unwelcome, and insofar as Colorado did so, its law was invalid.

But Justice Scalia did not stop at this point. He went on to argue that any law targeting unwanted communications was automatically content-based, because the law was triggered by the communicative impact of the unwelcome communication. As such, he would have invalidated any such law.¹¹⁴ But that goes a step too far, insofar as it suggests that speakers have a right to impose their speech on others when their audience has actively asserted a desire not to listen. In a later abortion case (discussed next), Justice Scalia suggested that his argument that the government had no legitimate interest in protecting people from unwanted speech was limited to restrictions on speech “in the public streets and sidewalks.”¹¹⁵ But again, Justice Scalia is off the mark. The key question is not where the speech occurs, but whether the speech is directed solely at unwilling listeners, as opposed to a broader audience (in other words, one-to-one versus one-to-many). Certainly, in many instances, including Snyder, it is reasonable to assume that speech in public places is directed at the public. But that assumption does not hold in the context of all anti-abortion protests, in which the speech is sometimes directed solely and directly at often-unwilling employees and patients. In Snyder, the Westboro Baptist Church sought out a broader audience for their protest by contacting the press and drawing attention to themselves; it is therefore doubtful if the protest would have proceeded if no one aside from funeral attendees had shown up (remember that the plaintiff in Snyder did not even see the speech at the time of the protest). But the same is very much not true of anti-abortion protests, which regularly occur without any broader public presence, and which are sometimes, though certainly not always, designed and intended to cause emotional harm to their “audience.”

Now consider the Court’s most recent, significant decision in this area, McCullen v. Coakley.¹¹⁶ There, the Court unanimously invalidated a thirty-five foot “buffer zone” that Massachusetts mandated around the entrances of abortion clinics, in which no one was allowed to enter or remain in, except for specific purposes such as simply walking through, people on clinic business, and law enforcement and other public functions.¹¹⁷ The Court, however, divided sharply on its reasoning. A five-Justice majority (with Chief Justice Roberts writing) found the law content-neutral but nonetheless concluded that it failed intermediate scrutiny.¹¹⁸ The concurring Justices (led again by Justice Scalia) would have invalidated the law as a content-based restriction on speech.¹¹⁹

What is interesting for our purposes is that in the course of finding content-neutrality, even the majority conceded (without mentioning Hill, oddly) that if the Massachusetts law had been “concerned with undesirable effects that arise from ‘the direct impact of speech on its audience’ or ‘listeners’ reaction to speech,’ ” it would have been content-based.¹²⁰ And Justice Scalia in his concurring opinion of course agreed with this point (while lambasting the majority for not expressly overruling Hill).¹²¹ The only issue on which the Justices disagreed was whether this was, in fact, the actual purpose of the Massachusetts law.

But unanimous or not, the Justices seem simply wrong on this point. Certainly, anti-abortion speakers have a right to make their case to the public, even if the ways in which they do so are distasteful or offensive. And certainly, the state has no interest in purging their speech from public debate, including in one-to-many speech in particular, simply because some members of the audience object to it. But to suggest that the state has no interest in protecting unwilling speakers at all is just wrong, in giving no weight to listener interests and failing to distinguish between public debate (meaning one-to-many speech) and private speech (meaning one-to-one speech).

In short, the bottom line is that insofar as the Colorado and Massachusetts laws in Hill and McCullen were based on the state’s assumption that anti-abortion speech is unwelcome, the Court was wrong to uphold the Colorado law and correct to invalidate the Massachusetts one. And the Justices are, to reiterate, also clearly correct that speech cannot be expunged from public debate simply because it might offend or discomfit some who hear it. But by going further and suggesting, as Justice Scalia did in Hill and all the Justices did in McCullen, that the state has no interest in enforcing listeners’ expressed preferences to be left alone, they are just wrong. The question of how a state might design a mechanism to enforce those expressed preferences has already been discussed; but for the purposes of this discussion the key point is that the Court appears in these cases to be conflating two entirely separate questions: the exclusion of offensive speech from public debate, which is impermissible, and the enforcement of listeners’ expressly invoked right to be left alone, which is not.

C. Regulating the Internet

In the summer of 2024, the Supreme Court issued an opinion in Moody v. NetChoice, LLC.¹²² The case involved challenges to two statutes, one enacted in Florida and the other in Texas, which both regulated the content moderation practices of social media platforms. In particular, the Florida law restricted the power of such platforms to moderate posts by “journalistic enterprise[s]” and posts by and about political candidates.¹²³ The Texas law more broadly forbade platforms from moderating content based on the viewpoint expressed in a post or the viewpoint of the poster.¹²⁴ Both laws also granted users certain procedural rights when their posts were moderated,¹²⁵ but those aspects of the laws are less relevant to this article. The Supreme Court ultimately declined to resolve the claims because the plaintiffs had chosen to bring a facial, as opposed to as-applied, challenge, and both lower courts had failed to apply the proper standard for facial challenges.¹²⁶ But in the course of providing instructions on remand, a solid majority of the Court made it clear that the First Amendment provided strong protections for platforms’ editorial choices in the form of content moderation.¹²⁷ As such, the Court was quite clear that if platforms chose to bring as-applied challenges to the application of at least the Texas law to their moderated “feeds” or homepages, the challenges were very likely to succeed.¹²⁸

The majority’s reasoning in NetChoice was clearly correct as a First Amendment matter¹²⁹ and is more than sufficient to sustain properly framed challenges to the Texas, and, truth be told, Florida, laws. But a focus on listener interests suggests that there is something more fundamentally problematic about Florida’s and Texas’s approaches to regulating platforms. The laws of both states are rooted in the basic assumption that legislators (and Governors) know best what content listeners/users should and should not be exposed to. But that assumption and approach are antithetical to First Amendment principles. It is for individuals, not the state, to decide what expressive interactions they wish to participate in.

A much better approach would be one proposed by a group of researchers at Stanford University, led by Francis Fukuyama, which seeks to introduce competition and choice in “middleware,” meaning the software that that performs editorial and content moderation functions on platforms.¹³⁰ Requiring platforms to permit users to pick their middleware of choice from a competitive menu of options empowers users/listeners to choose what speech to consume, and what not to consume, and so such a law would advance listeners’ rights. Of course, such a legal requirement would still burden platforms’ editorial rights, but in a less blatantly biased (and political) manner than Florida and Texas sought to do and so might be constitutionally defensible.¹³¹

Another area in which a listener-centric approach yields important insights is in regulations restricting targeted advertising. For example, Article 28(2) of the European Union’s Digital Services Act (“DSA”) prohibits platforms from delivering targeted advertising to users who are minors based on their personal data.¹³² While the First Amendment of course does not apply to the EU, given the so-called “Brussels Effect,”¹³³ it would not come as a surprise if the United States or one or more states within the United States, including California, followed the EU’s lead in this regard.

But the EU’s approach is misguided. It assumes that targeted advertising directed at children is inherently harmful or invasive. But, in fact, for vulnerable groups such as LGBTQ youth, shielding them from targeted content can cause substantial harm.¹³⁴ And more fundamentally, it is always better for the state to empower listeners, even minor listeners—who after all enjoy significant First Amendment rights to access information¹³⁵—than to make choices for them as the DSA does. For that reason, if the United States or an individual state felt it necessary to restrict targeted advertising directed at minors, it would be much better to empower minors or their parents to opt out of all, or specific forms of, targeted advertising than to enact a flat ban as the DSA does. Admittedly, authorizing parents to restrict targeted advertising could also have deleterious effects on vulnerable youth (sometimes parents are the problem); but that is a difficulty that pervades our society and can only be addressed through broader legal reforms, particularly in family law.

Conclusion

This article argues in favor of recognizing listeners’ rights to, and interests in, not to listen/be left alone. Such a right/interest comes in two forms. The first is a First Amendment right against the state, which generally would prohibit the state from forcing ideological content on unwilling listeners, a proposal that hopefully is not controversial. More difficult is a potential listener interest in avoiding speech from private speakers. Such an interest does not directly implicate the First Amendment, given the lack of state action; but in this paper I argue that nonetheless, the interest is a genuine one rooted in principles of free speech, which should be recognized: a right, as it were, to be left alone. The key implication of recognizing such a right is that it suggests that the First Amendment should not be understood to protect private speech directed at an unwilling listener who has invoked their right to be left alone, at least in a one-to-one situation. This in turn means that the First Amendment does not prohibit the state from adopting measures designed to enable unwilling listeners to invoke and legally enforce their right to be left alone, though nor does it mandate such measures.

This is not to say that protecting the right not to listen, and the right to be left alone, do not raise concerns. For one thing, it will reduce the occasions in which individuals will be exposed to ideas they do not like, which might be to the detriment of the quality of public discourse.¹³⁶ Furthermore, a right to be left alone that must be invoked to be effective might well be less useful to the disempowered in our society, who might therefore be harmed if the government is prevented from taking the initiative in shielding them from harmful speech.¹³⁷ But all rights come with a cost; and on balance, this paper argues that recognizing and empowering listener autonomy is worth the cost.

Finally, it should be noted that the analysis above regarding a right to be left alone, and how it can be reconciled with a speaker’s right to an audience, can also be extended to the converse situation—when the right to listen conflicts with the right against compelled speech. Here, too, one faces a potential conflict between two First Amendment interests when a listener desires some information or message but the speaker does not want to share it (perhaps the situation in the Virginia Pharmacy litigation). In this situation, as noted earlier, normally the government cannot force speakers to communicate because of the compelled speech doctrine. But as with a right to be left alone, it may well be that the government has a legitimate role in facilitating voluntary relationships between willing speakers and listeners, and in incentivizing reluctant speakers on behalf of listeners. But that is another, and complicated, topic of inquiry.

98 S. Cal. L. Rev. 1129

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Ashutosh Bhagwat*

* Distinguished Professor and Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality, UC Davis School of Law, contact: aabhagwat@ucdavis.edu. Thanks to Professor Erin Miller and the staff of the USC Law Review for organizing this event. Thanks also to Eugene Volokh for agreeing to serve as Discussant for this paper, and to Joseph Blocher, Alan Chen, and all the participants at the 2024 Southern California Law Review Symposium for providing extraordinarily valuable feedback.

INTRODUCTION

I. The Harm of Ideological Employment Denial

A. Four Traditional Approaches

B. Threats to Personal Integrity

C. Two Public Harms: Affective Polarization and Censorship

D. Summing Up

II. Intending to Change Behavior through Social Pressure

A. Corrupting Aims

B. Punitive Aims

III. Inadvertent Social Pressure and Employer Integrity

A. Non-Complicity

B. Employer Non-Association and Speech

IV. Inadvertent Social Pressure and Employer Economic Interests

A. Customer and Employee Retention

B. Workplace Efficiency

C. Merit

V. Final Reflections

A. Do We Need Legal Regulation?

B. Moral Uses of Social Pressure

C. Revisiting the Examples

D. But What About the Nazis?

99 S. Cal. L. Rev. 1

Introduction

I. Conceptualizing Forgiveness in Criminal Justice

A. Individual Forgiveness in Criminal Justice

B. Should Forgiveness Have a Role in Criminal Justice?

II. Individual Forgiveness and Communal Absolution in Religious Tradition

A. Individual Forgiveness in World Religions

B. Christian Individual Absolution

C. Communal Absolution in World Religions

Communal Cleansing Rituals

Periodic Absolution Practices

Communal Absolution in American History

III. Forms of Absolution Existing in Criminal Justice

A. Sentencing and Charging Revision

Second Look Resentencing

Deferred Adjudication

Safeguarding Judicial Discretion

B. Automatic Expungement

C. Clemency

Pardon Power

Amnesty

IV. The Role of Systemic Absolution in Criminal Justice

A. Perpetrators of Crime Avoiding Adequate Accountability

B. Societal Shifts on Forgiveness

C. Punishment Levels Need Adjusting

Conclusion

99 S. Cal. L. Rev. 41

Introduction

II. The Study59For a more detailed description of the study methodology, see Appendix A.

III. Findings I: Carceral Conditions Impeding Sleep in Prison

A. Uncomfortable Beds/Bedding/Mattresses

B. Hunger

C. Extremes of Heat and Cold

D. Noise

E. Light

IV. Findings II: Meta-Conditions Impeding Sleep in Prison

A. Fear of Violence

B. Trauma

C. Poverty

D. Overly Intrusive Rules Enforcement

E. Daily Humiliations

V. Implications: Prisons, Punishment, Law, Policy

A. Prisons: Sleep Deprivation and Carceral Life

B. Punishment: Sleep Deprivation and the Carceral Penalty

C. Law: Is Systematic Interference with Sleep Unconstitutional? Is it Torture?

D. Policy: Challenges and Complications

Conclusion

99 S. Cal. L. Rev. 95

Introduction

I. Today’s Debate About Litigation Finance

A. What is Litigation Finance?

B. The Scholarly Debate

C. The Policy Debate

II. Nonmarket Strategies: A Primer

A. What Are Nonmarket Strategies?

B. The Types of Nonmarket Strategies

Adaptive Strategies

Transformative Strategies

Additive Strategies

II. The Study⁵⁹