Divided Agencies

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

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

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          [3].      Osnos, supra note 1.

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

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

          [6].      Preston, supra note 5.

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

          [8].      See infra Part III.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

        [12].      See infra Part IV.

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

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

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

        [16].      See Bell, supra note 13.

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

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

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

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

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

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

        [23].      See infra Part V.

        [24].      See infra Part V.

        [25].      See infra Part I.

        [26].      See infra Part II.

        [27].      See infra Part III.

        [28].      See infra Part IV.

        [29].      See infra Part V.

        [30].      See infra Part VI.

        [31].      See infra Parts V, VI.

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

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

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

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

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

Dimensional Disparate Treatment

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

          [2].      Id. at 1754.

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

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

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

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

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

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

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

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

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

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

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

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

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

        [16].      See infra Section III.C.

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

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

        [19].      See infra Section III.B.

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

        [21].      See infra Section III.D.

        [22].      See infra Section III.E.

        [23].      See infra Section III.C.

        [24].      See infra Section III.C.

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

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

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

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

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

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

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

Say Yes to Her Redress: A Two-Step Approach to Post-Divorce Embryo Disputes

INTRODUCTION

I can’t believe Taylor Swift is about to turn 30 – she still looks so young! It’s strange to think that 90% of her eggs are already gone – 97% by the time she turns 40 – so I hope she thinks about having kids before it’s too late! She’d be a fun mom. [1]

Readers may remember the uproar alt-right propogandist Stefan Molyneux created when he delivered this bizarre commentary on singer Taylor Swift’s ovaries via Twitter in 2019. The internet was quick to defend Swift, rightly calling the tweet creepy and misogynistic.[2]

It is also, however, scientifically accurate.[3] Though it should go without saying that speculating about women’s reproductive capabilities on Twitter is inappropriate, to say the least, it is true that women have twelve percent of their egg supply left at age thirty, and three percent by the time they turn forty.[4] Age is an aspiring mother’s worst enemy;[5] women are born with all the eggs they will ever have and once they reach menopause, they are out for good.[6]

In vitro fertilization (“IVF”), a fertility treatment, is becoming more popular as women wait longer than ever to start a family.[7] IVF involves extracting eggs from a woman’s uterus, fertilizing them in a laboratory, and inserting the resulting embryos directly back into the uterus. However, women also have the option of freezing their fertilized embryos until they are ready for implantation. Freezing is often chosen by those who are not yet ready for children but want to preserve the option, women who want a safety net before undergoing chemotherapy or something else that will wreak havoc on their reproductive system, and those who have leftover embryos from an IVF cycle that they want to save for potential later use.[8] Though it is becoming increasingly common, IVF is an expensive, invasive, and painful procedure for women, and, as with any surgery, comes with risks.

Unfortunately, while most frozen embryos withstand the test of time,[9] many marriages do not.[10] Upon divorce, a couple has to decide what to do with their frozen embryos, and that question becomes thorny if they cannot agree. Currently, courts use one of three methods to determine what happens to embryos upon divorce when the ex-spouses do not see eye to eye. The Contractual Method strictly follows the fertility clinic’s consent forms the spouses signed before undergoing IVF, ignoring the uniquely emotional and one-sided nature of those forms. The Contemporaneous Mutual Consent Method refuses to award the embryos to either spouse for any purpose unless and until the ex-couple can agree on an outcome, leaving the parties in limbo. The Balancing Method looks at the facts of each individual case and decides which spouse’s rights should prevail. The potential application of three different methods means that outcomes are often unpredictable and arbitrary. Because these cases are relatively novel, most states have no established precedent, and courts have little guidance as to which method they should choose. Family law is a state issue, so there is no federal law or precedent on the subject either.

Nonetheless, trends have emerged in the way courts resolve embryo dispute cases. Most courts undermine or completely ignore the disproportionate burden women face both during and after the IVF process as compared to men. Courts also overwhelmingly rule against the spouse who seeks implantation, which in most cases is the woman. They ignore the fact that, for many of these women, the frozen embryos are their only chance at becoming parents, and instead allow them to be destroyed, donated, or held in storage indefinitely. These trends are not only unfair but also go against both the language and purpose of existing law. This Note proposes a two-step approach to embryo disputes between heterosexual, divorced couples, in cases in which the wife was the egg donor. Embryos should be considered marital property, making their division fall under existing marital property dissolution statutes. Fundamentally, these statutes prescribe a fair split of marital assets, and a fair split of embryos means awarding them to the wife—every single time.

This Note intends to establish three points. First, the existing law in this area is not adequate and often causes more irreversible harm than good. Second, this corner of the law is yet another area where women and their suffering are undermined and overlooked. Finally, although this proposed two-step approach may initially seem somewhat radical, existing law is generally amenable to it already. With nearly 1.5 million frozen embryos currently in storage,[11] legal experts predict that these cases “will continue to pile up in courts”[12]—if nothing else, a realistic, fair, and sustainable solution is needed for efficiency purposes.

Part I explains the process of IVF and how embryo dispute cases are currently decided. It begins by underlining how women face a substantially disproportionate burden throughout the IVF process, but courts have had a tendency to dismiss that disparity when deciding embryo disputes. Part II analyzes embryo disputes in the context of a property framework. It argues that embryos should be considered property—marital property, to be specific—and discusses how states currently define embryos, as well as how statutes govern the division of marital property upon divorce. While states have their own marital dissolution statutes, the crux of each one is that, above all else, the division should be fair. Part III details the thrust of the argument—that due to the disproportionate burdens women face both during and after the IVF process, a fair split, as required by these statutes, will always entail giving the woman possession of the embryos upon divorce, regardless of the facts of each case.

          [1].      Chris Stokel-Walker, Is the Worst Tweet Ever Really the One About Taylor Swift’s Eggs?, Input (Oct. 8, 2021, 10:15 AM) (quoting @StefanMolyneux, Twitter (Dec. 9, 2019, 7:20 PM)), https://www.inputmag.com/culture/twitter-worst-tweet-ever-bracket-taylor-swift-ruthkanda-forever-stef
an-molyneux [https://perma.cc/EL55-UHN8]. Molyneux has since been banned from Twitter.

          [2].      Isabel Jones, The Internet Is Coming to Taylor Swift’s Defense After an Alt-Right Troll Tweeted About Her Egg Count, InStyle (Dec. 10, 2019, 11:15 AM), https://www.instyle.com/news/taylor-swift-tweet-eggs-reaction [https://perma.cc/S7HB-6DD8].

          [3].      Actually, it may be one of the only scientifically accurate statements Molyneux has ever made. See Stefan Molyneux, S. Poverty L. Ctr., https://www.splcenter.org/fighting-hate/extremist-files/
individual/stefan-molyneux [https://perma.cc/HM4N-2VYW].

          [4].      See W. Hamish B. Wallace & Thomas W. Kelsey, Human Ovarian Reserve from Conception to the Menopause, 5 PLOS One 1, 4 (Jan. 27, 2010).

          [5].      Risk Factors, U.C.S.F., https://crh.ucsf.edu/risk_factors [https://perma.cc/5CT3-NQ3N].

          [6].      Normal Ovarian Function, Rogel Cancer Ctr., https://www.rogelcancercenter.org/fertility-preservation/for-female-patients/normal-ovarian-function [https://perma.cc/BU24-37Y9].

          [7].      See Danielle M. Ely & Brady E. Hamilton, Trends in Fertility and Mother’s Age at First Birth Among Rural and Metropolitan Counties: United States 2007–2017, at 1, 5, Nat’l Ctr. for Health Stats (2018).

          [8].      The number of embryos inserted is carefully controlled in an attempt to
avoid multiple births and the associated risks. See In Vitro Fertilization (IVF), Mayo Clinic, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716 [https://perma.cc
/9Z98-YXCQ].

          [9].      See Pam Belluck, What Fertility Patients Should Know About Egg Freezing,
N.Y. Times (Mar. 13, 2018), https://www.nytimes.com/2018/03/13/health/eggs-freezing-storage-safety.html [https://perma.cc/6LA9-TZ45].

        [10].      See Erin McDowell, 13 Surprising Facts About Divorce in the US, Insider
(July 30, 2020, 8:52 AM), https://www.businessinsider.com/alarming-facts-about-divorce-in-the-us [https://perma.cc/32B2-BVUP].

        [11].      See Marilynn Marchione, In Limbo: Leftover Embryos Challenge Clinics, Couples, Med. Xpress (Jan. 17, 2019), https://medicalxpress.com/news/2019-01-limbo-leftover-embryos-clinics-couples.html [https://perma.cc/Z5HC-6VGW].

        [12].      Mark F. Walsh, Arizona Law Determines Fate of Frozen Embryos in Divorce Cases, A.B.A. J. (Dec. 1, 2018, 2:20 AM), https://www.abajournal.com/magazine/article/arizona_law_frozen_
embryos_divorce [https://perma.cc/YM4Q-UAAJ].

*.      Senior Submissions Editor, Southern California Law Review, Volume 95; J.D. Candidate 2022, University of Southern California Gould School of Law; B.A. Philosophy-Neuroscience-Psychology 2016, Washington University in St. Louis. Thank you to Professor Scott Altman for his invaluable guidance throughout the Note-writing process and to the Southern California Law Review staff and editors for all of their hard work. Above all, thank you to my family for their love and support and to my friends for their outlines and comic relief.

Without Exception? The Ninth Circuit’s Evolving Stance on Nondebtor Releases in Chapter 11 Reorganizations

INTRODUCTION

Chapter 11 of the Bankruptcy Code (or the “Code”) allows a troubled business debtor the opportunity to restructure its financial affairs so that it may successfully operate in the future.[1] To facilitate this process, a Chapter 11 debtor is given the exclusive right to propose a reorganization plan that, among other things, “provides for distribution on, and discharge of, all of the debtor’s prebankruptcy debts.”[2] Under some circumstances, a Chapter 11 debtor may choose to include a nondebtor release provision in its reorganization plan with creditors. Nondebtor releases (or “third-party releases”) vary in scope and form but generally are designed to shield nondebtors from liability on pre- and/or post-petition claims and are accompanied by injunctions barring actions against the released party.[3] Nondebtor releases are often provided in exchange for contributions to the reorganization.[4] For example, guarantors of the debtor may distribute funds to the reorganization effort in exchange for a release from their obligation under the guaranty. If a bankruptcy judge were to approve the nondebtor release and issue an accompanying injunction, any claims a creditor might have had against the guarantor are effectively extinguished.

So long as the enjoined party consents to the release, courts typically have no difficulty in finding the nondebtor release valid.[5] But when bankruptcy courts are asked to approve the release over the objection of an enjoined party, courts are confronted with fundamental questions about the objectives of the Bankruptcy Code and the rights of the enjoined party. How courts decide these issues can have significant consequences for the parties to the bankruptcy case and society more generally.

Does a bankruptcy court have the authority to extinguish otherwise valid claims against a nondebtor to protect the debtor’s reorganization effort? And if so, under what conditions? These questions have divided circuit courts for more than three decades.[6] Practically every jurisdiction weighing in on the merits of nondebtor releases has established its own rules regarding their approval or prohibition. A majority of circuit courts hold that nondebtor releases are an appropriate use of the bankruptcy court’s equitable powers.[7] They differ, however, on what circumstances justify the inclusion of a nondebtor release in a reorganization plan. Some majority opinions focus on how necessary the release is to ensure the success of the reorganization and thereby avoid liquidation of the debtor’s assets.[8] Other courts in the majority balance considerations of necessity with concerns about fairness to enjoined creditors.[9] A minority of jurisdictions prohibit the use of nondebtor releases in reorganization plans under any circumstances.[10] According to these courts, nondebtor releases “improperly insulate” nondebtors and function as de facto discharges outside of bankruptcy.[11]

Until 2020, the Ninth Circuit had “repeatedly held, without exception,” that nondebtor releases were precluded by the provisions of the Code.[12] Its decisions denying nondebtor releases used broad language that seemed to foreclose the possibility of the Ninth Circuit approving any nondebtor release, regardless of form or scope.[13] The Ninth Circuit was one of the first appellate courts to disapprove of a nondebtor release under the Bankruptcy Code of 1978,[14] and its opinions laid out a blueprint for other courts in their disapproval of nondebtor releases.[15] To say the Ninth Circuit was firmly established in the minority of jurisdictions prohibiting nondebtor releases is a bit of an understatement. In many ways, it was the leading authority on the invalidity of nondebtor releases.[16]

 The Ninth Circuit’s decision in Blixseth v. Credit Suisse revised its stance on nondebtor releases. Blixseth involved a type of nondebtor release known as an exculpation clause.[17] Exculpation clauses are designed to release any named party, including nondebtors, from liability for any negligent acts or omissions related to the formulation, negotiation, or confirmation of the Chapter 11 case itself.[18] Seemingly upending decades of precedent, Blixseth held the language of the Bankruptcy Code did not prohibit such a “narrow” nondebtor release.[19] Contrasting the “sweeping nondebtor releases” denied in previous Ninth Circuit decisions, the court opined that the exculpation clause in Blixseth did “nothing more than allow the settling parties . . . to engage in the give-and-take of the bankruptcy proceeding without fear of subsequent litigation over any potentially negligent actions in those proceedings.”[20] After decades of disapproving of nondebtor releases, Blixseth’s reasoning and statutory interpretation indicate an important, yet incremental, shift towards the majority view on nondebtor releases.

This Note will conduct a critical analysis of Blixseth to illuminate how the decision differs from the court’s previous decisions on nondebtor releases and what it means for the future of nondebtor releases in the Ninth Circuit. The Note will then draw from that analysis to critique Blixseth’s reasoning and point to an alternative position on nondebtor releases that better aligns with the provisions and goals of the Bankruptcy Code. Part I will discuss the policy goals of Chapter 11 of the Bankruptcy Code and their relationship to nondebtor releases, analyze the statutory provisions relevant to the debate on nondebtor releases, and review the most common forms of nondebtor releases. Part II contains an analysis of the court’s reasoning in Blixseth and its predecessors and attempts to forecast how the court will rule on nondebtor releases in the future. Finally, Part III will argue that the Ninth Circuit should have embraced a more liberal position on nondebtor releases because the Code does not prohibit nondebtor releases and it sufficiently mitigates the “potential for abuse”[21] posed by nondebtor releases.

          [1].      United States v. Whiting Pools, Inc., 462 U.S. 198, 203 (1983).

          [2].      Ralph Brubaker, Bankruptcy Injunctions and Complex Litigation: A Critical Reappraisal of Non-Debtor Releases in Chapter 11 Reorganizations, 1997 U. Ill. L. Rev. 959, 961 (1997).

          [3].      4 Collier on Bankruptcy ¶ 524.05 (Richard Levin & Henry J. Sommer eds., 16th ed. 2021), LexisNexis; Brubaker, supra note 2, at 961; Richard L. Epling, Third-Party Releases in Bankruptcy Cases: Should There Be Statutory Reform?, 75 Bus. Law. 1747, 1749 (2020).

          [4].      See, e.g., In re AOV Indus., Inc., 792 F.2d 1140, 1152 (D.C. Cir. 1986) (describing a nondebtor release given in exchange for the nondebtor’s commitment of “millions of dollars to a reorganization plan”).

          [5].      Joshua M. Silverstein, Hiding in Plain View: A Neglected Supreme Court Decision Resolves the Debate over Non-Debtor Releases in Chapter 11 Reorganizations, 23 Emory Bankr. Devs. J. 13, 25–26 (2006).

          [6].      The Ninth Circuit denied a nondebtor release as early as 1985 in Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir. 1985). One year later, the D.C. Circuit approved a nondebtor release in In re AOV Indus., Inc., 792 F.2d at 1154.

          [7].      SE Prop. Holdings, LLC v. Seaside Eng’g & Surveying, Inc. (In re Seaside Eng’g & Surveying, Inc.), 780 F.3d 1070, 1077–78 (11th Cir. 2015) (describing the circuit split); see infra Table 1 (describing competing interpretations among different circuits).

          [8].      See, e.g., In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 293 (2d Cir. 1992) (holding “a court may enjoin a creditor from suing a third party, provided the injunction plays an important part in the debtor’s reorganization plan”).

          [9].      See, e.g., Gillman v. Cont’l Airlines (In re Cont’l Airlines), 203 F.3d 203, 211–14 (3d Cir. 2000); see also infra Table 1.

        [10].      In re Seaside Eng’g & Surveying, Inc., 780 F.3d at 1077–78; see infra Table 1.

        [11].      See, e.g., In re W. Real Est. Fund, Inc., 922 F.2d 592, 602, 600 (10th Cir. 1990) (“Obviously, it is the debtor, who has invoked and submitted to the bankruptcy process, that is entitled to its protections; Congress did not intend to extend such benefits to third-party bystanders.”).

        [12].      Resorts Int’l, Inc. v. Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1401 (9th Cir. 1995).

        [13].      See id. at 1401–02; see also Am. Hardwoods, Inc. v. Deutsche Credit Corp. (In re Am. Hardwoods, Inc.), 885 F.2d 621, 626 (9th Cir. 1989) (concluding § 524(e) “limits the court’s equitable power under section 105 to order the discharge of the liabilities of nondebtors”).

        [14].      See supra note 6.

        [15].      See In re W. Real Est. Fund, Inc., 922 F.2d at 601–02 (“[W]e follow the Ninth Circuit’s lead . . . and hold that . . . the stay may not be extended post-confirmation in the form of a permanent injunction that effectively relieves the nondebtor from its own liability to the creditor.”).

        [16].      Silverstein, supra note 5, at 44 (noting “[t]he Ninth Circuit is the leading proponent of the view that third-party releases are invalid under § 524(e)”).

        [17].      Blixseth v. Credit Suisse, 961 F.3d 1074, 1078–79 (9th Cir. 2020), cert. denied, 141 S. Ct. 1394 (2021).

        [18].      Joshua M. Silverstein, Overlooking Tort Claimants’ Best Interests: Non-Debtor Releases in Asbestos Bankruptcies, 78 UMKC L. Rev. 1, 30 (2009).

        [19].      Blixseth, 961 F.3d at 1082.

        [20].      Id. at 1083–84.

        [21].      Deutsche Bank AG, London Branch v. Metromedia Fiber Network, Inc. (In re Metromedia Fiber Network, Inc.), 416 F.3d 136, 142 (2d Cir. 2005) (“The potential for abuse is heightened when [nondebtor] releases afford blanket immunity.”).

* Executive Senior Editor, Southern California Law Review, Volume 95; J.D. Candidate 2022, University of Southern California Gould School of Law. I dedicate this Note to my wife, Elizabeth, who has selflessly supported me throughout my legal education. I also would like to thank Lecturer in Law George Webster for his generosity, patience, and insight throughout the development of this Note.

Overturning Override: Why Executing a Person Sentenced to Death By Judicial Override Violates the Eighth Amendment

INTRODUCTION

Judicial override is a practice by which a judge overrules a sentence decided by a jury. Perhaps the most alarming, infamous, and controversial form of judicial override occurs when a judge overrules a jury’s recommendation for life imprisonment and replaces it with the death penalty. The use of judicial override in capital punishment cases has only ever been allowed in four states: Alabama, Delaware, Florida, and Indiana.[1] As of 2017, all four of these states have officially abandoned the practice. However, thirty-five individuals who were sentenced to death via judicial override remain on death row awaiting execution.[2] Today, their lives hang in the balance as the following constitutional question remains: Does the execution of a person sentenced to death by judicial override violate the Eighth Amendment of the United States Constitution?

This Note argues that executing these thirty-five individuals who were sentenced to death by judicial override would, in fact, be a “cruel and unusual” punishment under the Eighth Amendment and thus unconstitutional. Importantly, this Note is not arguing that the death penalty itself is unconstitutional; rather, the Note’s argument is centered around the specific constitutional issue of execution as the direct result of the pre-2017 practice of judicial override.

This Note’s argument proceeds in the following stages. Part I provides background information regarding the history of judicial override in four different states, a summary of relevant United States Supreme Court precedent, an overview of the Eighth Amendment to the United States Constitution, and the Court’s previous interpretations of the meaning of “cruel and unusual punishments.” Part II asserts that a punishment of death by judicial override is more objectionable than the death penalty itself, emphasizes the importance of jury sentencing, and calls attention to the presence of racial bias in judicial override. Additionally, Part II argues that the execution of a person sentenced to death by judicial override violates the Eighth Amendment under multiple constitutional theories, including living constitutionalism, the moral reading of the Constitution, and originalism. Part III briefly addresses counterarguments concerning adherence to Supreme Court precedent and federalism, and Part V concludes this Note by suggesting two potential solutions to the issue at bar.

          [1].      Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases: An Update and Possible Half-Requiem, 2011 Mich. St. L. Rev. 793, 794 (2011); Petition for Writ of Certiorari at 5, McMillan v. Alabama, 141 S. Ct. 876 (2020) (No. 20-193).

          [2].      Petition for Writ of Certiorari, supra note 1, at 6.

* Executive Senior Editor, Southern California Law Review, Volume 95; J.D. Candidate 2022, University of Southern California Gould School of Law; B.A. Political Science 2018, University of California, Los Angeles. Thank you to Gonzo for your unwavering support throughout my law school journey. I am also grateful to Professor Rebecca Brown for her guidance during this Note’s development. Finally, thank you to all of the Southern California Law Review editors for spending countless hours on the publication process.

 

Crack Taxes and The Dangers of Insidious Regulatory Taxes

An unheralded weapon in the War on Drugs can be found in state tax codes: many states impose targeted taxes on individuals for the possession and sale of controlled substances. These “crack taxes” provide state officials with a powerful means of sanctioning individuals without providing those individuals the protections of the criminal law. Further, these taxes largely escape public scrutiny, which can contribute to overregulation and uneven enforcement.

The controlled substance taxes highlight the allure to lawmakers of using tax law to regulate behavior, but also the potential dangers of doing so. Surprisingly, the judiciary has an underappreciated role in creating the allure of regulatory taxes. Because courts apply less scrutiny to taxes than to other types of laws, regulatory taxes get a blank check when challenged, incentivizing their use. Courts must reconfigure the way they approach regulatory taxes to remove the judicially created incentive for insidious regulatory taxes like controlled substance taxes.

Introduction

“ ‘It was going through the mail and the mail lady smelled it and called the police . . . . I’m not ever gonna get out from underneath this, ever, not unless I win the lottery and become a millionaire’ . . . .”[1] The North Carolina woman offering these statements was troubled not by her arrest and charge of attempted drug trafficking, but by the twenty-thousand-dollar tax assessment she received for possessing controlled substances (that is, illegal drugs). North Carolina brings in millions of dollars from its so-called “crack tax”[2] or “Al Capone law”[3] each year,[4] and several other states use similar taxes on the possession and sale of controlled substances to further regulate already criminalized activities.[5]

The idea of taxes as a weapon in the War on Drugs may seem surprising, but perhaps it is predictable that lawmakers wanting to look tough on drugs would co-opt tax law in this way. More surprising though is the underappreciated role courts have in incentivizing lawmakers to enact controlled substance taxes and other regulatory taxes to achieve their goals.

How do courts incentivize the enactment of regulatory taxes? At its core, the answer to this question is a story of veiled consequences of elevating form over substance. Courts have habitually treated tax laws with the utmost respect,[6] resulting in a privileged regime of relaxed judicial scrutiny for taxes.[7] Governments must raise revenue, and taxation is a powerful tool to raise that revenue from whatever members of society lawmakers see fit. Unelected judges, the line of thinking goes, should be hesitant to upset these fundamentally political decisions.[8] This hesitancy has pushed courts to be exceedingly cautious when examining laws labeled “taxes.”

In addition to their revenue-raising role, taxes have also long been recognized as legitimate and powerful tools to regulate behavior.[9] One might expect courts to heighten their scrutiny of taxes with intentional regulatory goals (as opposed to mere revenue-raising taxes) to ensure that the interests of regulated individuals are appropriately considered. However, this is rarely the case, even when the taxes’ revenue goals are insignificant compared with their regulatory goals.[10]

In short, as critics of “tax exceptionalism”—the idea that tax law is categorically different from other areas of law and should be treated so—have long observed and frequently lamented, courts often employ a unique approach to analyzing tax laws.[11] Once a court determines that laws are tax laws, those laws become privileged before the judiciary, even when the laws have intentional regulatory effects.[12] This subtle elevation of form (tax law) over substance (regulatory effects) results in the judicially created incentive for lawmakers to pursue their regulatory goals through taxation rather than through direct regulation: taxes will not face as much scrutiny from courts.[13]

Lawmakers have noticed and responded, using taxes to achieve regulatory goals where other laws might receive more scrutiny from courts.[14] Though this phenomenon may appear benign, it can generate serious harms for individuals, as controlled substance taxes illustrate.[15] By adopting the taxes rather than increasing existing criminal sanctions, lawmakers impose punishment on those possessing and selling controlled substances without running up against legal protections for criminal defendants.[16] Even those people who would be acquitted under the criminal law can still be sanctioned for their behavior through these insidious regulatory taxes.[17] Thus, controlled substance taxes are a potentially powerful and unchecked weapon in the War on Drugs. Given the biased manner in which the War on Drugs has been carried out,[18] skirting protections for individuals is particularly concerning, as tax law becomes a tool of state oppression of overpoliced communities.[19]

The harms of these taxes do not stop with those cavalierly imposed on individuals. Regulatory taxes like controlled substance taxes also impose stealth costs on society because they are less effective than their direct regulation alternatives.[20] For example, controlled substance taxes are often burdensome laws for tax authorities to administer, making the taxes a costly alternative to laws directly regulating controlled substances, which are enforced by those more familiar with the substances.[21] Further highlighting the insidious nature of these taxes, they also obscure the total amount of regulation that an activity is subject to by remaining out of public view, leading to harmful overregulation that is difficult to address.[22]

Despite the dangers of regulatory taxes like controlled substance taxes, these insidious taxes have gone largely unnoticed in the tax literature. Rather, tax scholars have focused on the relative substantive strengths of taxation versus direct regulation when analyzing the best options for achieving regulatory goals.[23] Literature regarding the related phenomena of fines and civil forfeiture laws has not considered the unique situation of tax laws before the courts.[24] In short, the role of judicial deference regimes in tilting the scales toward regulatory taxes and the resulting consequences for individuals and society are underappreciated. This Article is the first to home in on these issues,[25] analyzing them and demonstrating how courts should take them into account to correct for the inadvertent judicial incentive for lawmakers to enact insidious regulatory taxes.

Courts can remove this incentive and head off future insidious regulatory taxes by recognizing the potential for these taxes to exist and placing such taxes under more scrutiny when exposed.[26] This Article builds on scholarly developments in modern tax expenditure analysis—which explores the role of taxes as a tool for achieving regulatory goals[27]—to propose an analytical framework for uncovering insidious regulatory taxes. A comparatively weak tax law passed to take advantage of the privileged judicial scrutiny regime for taxes is an insidious regulatory tax, and, once that tax is uncovered through the proposed analysis, a court should scrutinize the tax as it would a similar direct regulation.

Controlled substance taxes offer a prime example of insidious regulatory taxes and their dangers, but not all regulatory taxes are insidious. Regulatory taxes like carbon taxes that are more effective than their direct regulation counterparts are substantively justified and do not raise the concerns associated with insidious regulatory taxes.[28] However, as regulatory taxes continue to become more prevalent,[29] the proposed framework will become more crucial to aid courts in separating the insidious regulatory taxes in need of heightened scrutiny from the unobjectionable ones.

The Article proceeds in three parts. Part I provides background on controlled substance taxes and the judicial privilege granted to all types of taxes. The resulting allure of regulatory taxes can be too much for lawmakers to ignore, resulting in the enactment of insidious regulatory taxes like controlled substance taxes. Part II then details the dangers of insidious regulatory taxes in more depth, exposing the problems created by the judiciary’s current approach to taxes. Finally, Part III fleshes out the proposed framework for analyzing tax laws to remove the judicially created incentive for insidious regulatory taxes, using the controlled substance taxes as a case study to illustrate the framework’s operation.

          [1].      Michael Hennessey, Inside the North Carolina Law Requiring Drug Dealers to Pay Taxes, myfox8.com (May 10, 2019, 10:21 AM), https://myfox8.com/news/inside-the-north-carolina-law-requiring-drug-dealers-to-pay-taxes [https://perma.cc/DT5B-NDPS].

          [2].      See Jeremy M. Vaida, The Altered State of American Drug Taxes, 68 Tax Law. 761, 787 (2015).

          [3].      See Anne Barnard, In Taxing Illegal Drugs, the Trouble Comes in Collecting, N.Y. Times (Jan. 24, 2008), https://www.nytimes.com/2008/01/24/nyregion/24drugs.html [https://perma.cc/PMS5-YBU
7] (quoting an associate of the Federation of Tax Administrators describing the taxes as hearkening to “the Al Capone model”); Christopher Paul Sorrow, The New Al Capone Laws and the Double Jeopardy Implications of Taxing Illegal Drugs, 4 S. Cal. Interdisc. L.J. 323, 323 (1995); Christina Joyce, Expanding the War Against Drugs: Taxing Marijuana and Controlled Substances, 12 Hamline J. Pub. L. & Pol’y 231, 239 (1991).

          [4].      See N.C. Dep’t of Revenue, Statistical Abstract of North Carolina Taxes 2019 tbl. 15 (2019) (showing tax revenues ranging from approximately $6.5 million to approximately $11.5 million for fiscal years 2005 through 2019 from the state’s controlled substance tax, which includes taxes on illicit liquors in addition to illicit drugs).

          [5].      See infra note 34.

          [6].      See infra Section I.B.

          [7].      See, e.g., Eric Kades, Drawing the Line Between Taxes and Takings: The Continuous Burdens Principle, and Its Broader Application, 97 Nw. U. L. Rev. 189, 192 (2002) (“At times, judges and legal commentators have declared that Congress’ power to tax is beyond constitutional review.”).

          [8].      See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 531-32 (2012) (“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”). As Justice Felix Frankfurter articulated,

[Governments] need the amplest scope for energy and individuality in dealing with the myriad problems created by our complex industrial civilization. They need wide latitude in devising ways and means for paying the bills of society and in using taxation as an instrument of social policy. Taxation is never palatable, and its exercise should not be subjected to finicky or pedantic arguments based on abstractions.

Felix Frankfurter, The Public and Its Government 48-49 (1930).

          [9].      See infra note 30.

        [10].      See infra Section I.B.

        [11].      See, e.g., Alice G. Abreu & Richard K. Greenstein, Tax: Different, Not Exceptional, 71 Admin. L. Rev. 663, 663-64 (2019) (surveying tax exceptionalism scholarship and arguing that tax is not different in kind from other types of law and should not be analyzed as though it were); Paul L. Caron, Tax Myopia, or Mamas Don’t Let Your Babies Grow Up to Be Tax Lawyers, 13 Va. Tax Rev. 517, 518-31 (1994) (highlighting and criticizing the perception that tax law is different from other areas of law).

        [12].      See, e.g., Gillian E. Metzger, To Tax, to Spend, to Regulate, 126 Harv. L. Rev. 83, 90 (2012). Part of the opinion from Department of Revenue of Montana v. Kurth Ranch illuminates this claim. While observing that taxes are subject to constitutional constraints, as are criminal fines and civil penalties, the Court notes demanding constraints for criminal sanctions and relatively trivial constraints for taxes, even if those taxes fall on the same criminal activities as the criminal sanctions do. Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 778 (1994).

        [13].      See infra Section I.B.

        [14].      See Michael S. Kirsch, Alternative Sanctions and the Federal Tax Law: Symbols, Shaming, and Social Norm Management as a Substitute for Effective Tax Policy, 89 Iowa L. Rev. 863, 865–66 (2004) (describing how federal tax laws are used for regulatory goals); Stanley S. Surrey & Paul R. McDaniel, The Tax Expenditure Concept: Current Developments and Emerging Issues, 20 B.C. L. Rev. 225, 247 (1979) (describing how taxes have been used when direct regulations might be unconstitutional or difficult to enact). See generally R.A. Lee, A History of Regulatory Taxation (1973). Lee examines a number of federal taxes with regulatory effects in his work. In describing the historical context and creation of each tax, Lee uncovers the statements of many members of Congress demonstrating their understanding that they could achieve their goals in a less constitutionally suspect manner by using the taxes instead of direct regulations. For example, in detailing a proposed federal tax on grain futures in 1921, Lee describes a discussion in which Congressman Marvin Jones opined that “if that approach [of direct regulation] were used . . . ‘a constitutional question might arise’ but the Supreme Court had ‘allowed us to go a long ways in the taxing power,’ so he believed this was the ‘wiser method.’ ” Id. at 73. In a later passage, Lee describes a 1937 House Ways and Means Committee Report as finding that “ ‘the law is well settled’ that a regulatory tax, although controlling a subject reserved to state jurisdiction, would be valid ‘if it appears on its face to be a revenue measure.’ ” Id. at 182.

        [15].      See infra Part II.

        [16].      See infra notes 117-22 and accompanying text.

        [17].      See, e.g., Barnard, supra note 3 (reporting comments of a tax administrator recognizing the potential for the taxes to impose punishment when criminal sanctions cannot); Robert E. Tomasson, 21 States Imposing Drug Tax and Then Fining the Evaders, N.Y. Times (Dec. 23, 1990), https://www.
nytimes.com/1990/12/23/us/21-states-imposing-drug-tax-and-then-fining-the-evaders.html [https://per
ma.cc/VD68-HAJF] (reporting on controlled substance taxes as effective tools in combatting illegal drug sales because of their ability to avoid the protections afforded to criminal defendants).

        [18].      See authorities cited infra note 125.

        [19].      Indeed, the taxes are often enforced only against individuals charged with violations of criminal controlled substance laws. See authorities cited infra note 57.

        [20].      See infra Section II.B.

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

        [22].      See infra Section II.C.

        [23].      See, e.g., Stanley S. Surrey, Pathways to Tax Reform: The Concept of Tax Expenditures 148-54 (1973) (discussing tax expenditures and the choice between taxation and spending programs); Surrey & McDaniel, supra note 14, at 227-28 (same); David A. Weisbach & Jacob Nussim, The Integration of Tax and Spending Programs, 113 Yale L.J. 955, 959-64 (2004) (same); Eric J. Toder, Tax Cuts or Spending—Does It Make a Difference?, 53 Nat’l Tax J. 361, 361-63 (2000) (same); Edward A. Zelinsky, James Madison and Public Choice at Gucci Gulch: A Procedural Defense of Tax Expenditures and Tax Institutions, 102 Yale L.J. 1165, 1165-67 (1993) (same); Eric M. Zolt, Deterrence Via Taxation: A Critical Analysis of Tax Penalty Provisions, 37 UCLA L. Rev. 343, 348 (1989) (same).

        [24].      See, e.g., Ariel Jurow Kleiman, Nonmarket Criminal Justice Fees, 72 Hastings L.J. 517, 520 (2021) (detailing similar issues surrounding criminal fees); Beth A. Colgan, Fines, Fees, and Forfeitures, 18 Criminology, Crim. Just., L. & Soc’y 22, 28 (2017) (detailing the use of fines, fees, and forfeitures as sanctions for criminalized activities); Suellen M. Wolfe, Recovery from Halper: The Pain from Additions to Tax Is Not the Sting of Punishment, 25 Hofstra L. Rev. 161, 197 (1996) (detailing similar issues surrounding civil forfeiture laws); Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L.J. 1795, 1799-1800, 1802, 1870 (1992) (observing the harms of failing to provide protections for individuals subject to civil state sanctions); Marc B. Stahl, Asset Forfeiture, Burdens of Proof and the War on Drugs, 83 J. Crim. L. & Criminology 274, 274-79 (1992) (critiquing civil forfeiture laws).

        [25].      As far back as 1979, Stanley Surrey, former Assistant Secretary of the Treasury for Tax Policy, predicted that “Congress, by inserting spending programs in the tax law, essentially has forced the courts to apply to tax law the legal provisions hitherto imposed on direct spending.” Stanley S. Surrey, Tax Expenditure Analysis: The Concept and Its Uses, 1 Can. Tax’n 3, 9 (1979) [hereinafter Surrey, Tax Expenditure Analysis]; see also Surrey, supra note 23, at 46-47; Surrey & McDaniel, supra note 14, at 246. Though this prediction seemed based on Surrey’s conclusion that “tax expenditures”—the normatively unnecessary provisions of tax law designed to achieve regulatory results—should not be entitled to the privilege given to revenue-raising tax provisions, Surrey and others since have not fully analyzed the issue of judicial scrutiny of regulatory taxes and its implications. This Article fills that void.

                   As an aside, Surrey’s prediction may have come true in some cases regarding special tax breaks offered in lieu of direct spending. See, e.g., Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2260-61 (2020) (holding tax credits for education to the same level of scrutiny under the Free Exercise Clause as direct spending measures); Mueller v. Allen, 463 U.S. 388, 393-404 (1983) (holding tax breaks to the same level of scrutiny under the Establishment Clause as direct spending measures). However, surely Surrey would be surprised to find that his prediction has largely failed to materialize in the case of tax laws used in lieu of direct regulations. Rather, courts have continued to privilege tax laws regardless of the regulatory effects those taxes might have.

        [26].      See infra Section III.A.4.

        [27].      See generally Weisbach & Nussim, supra note 23 (laying the foundation for modern tax expenditure analysis, which focuses on the comparative institutional competencies of taxes and direct spending measures); see also infra notes 151-62 and accompanying text.

        [28].      See generally Shi-Ling Hsu, The Case for a Carbon Tax: Getting past Our Hang-Ups to Effective Climate Policy (2011) (comparing economic, social, administrative, and political merits of carbon taxes versus direct regulations and concluding that a tax would be the most effective policy); Reuven S. Avi-Yonah & David M. Uhlmann, Combating Global Climate Change: Why a Carbon Tax Is a Better Response to Global Warming than Cap and Trade, 28 Stan. Envtl. L.J. 3, 6-8 (2009) (similar).

        [29].      See, e.g., Lucy Dadayan, Tax Pol’y Ctr., Are States Betting on Sin? The Murky Future of State Taxation 3-4 (2019), https://www.taxpolicycenter.org/publications/are-states-betting-sin-murky-future-state-taxation/full [https://perma.cc/K6AX-5D4C] (reporting upward trends in the imposition of “sin taxes” on unwanted behaviors); Rachelle Holmes Perkins, Salience and Sin: Designing Taxes in the New Sin Era, 2014 BYU L. Rev. 143, 145 (2014) (describing increasing use of sin taxes).

*      Associate Professor, University of Richmond School of Law. For their helpful thoughts and comments, I would like to thank my outstanding colleagues at the University of Richmond and the participants in the 2019 Junior Tax Scholars Workshop, the 2019 Junior Faculty Forum, and the 2021 AALS New Voices in Taxation program. I owe specific thanks to Aravind Boddupalli, Beth Colgan, Erin Collins, Jim Gibson, Ari Glogower, Mary Heen, Dick Kaplan, Ariel Jurow Kleiman, Corinna Lain, Sarah Lawsky, Ruth Mason, Lukely Norris, Tracey Roberts, Erin Scharff, and Allison Tait. I am indebted to Chris Marple, Tyler Moses, and Whitney Nelson for their excellent assistance with research.     

The Role of State Attorneys General In Improving Prescription Drug Affordability

Impact litigation initiated by state attorneys general has played an important role in advancing public health goals in contexts as diverse as tobacco control, opioids, and healthcare antitrust. State attorneys general also play a critical role in helping governors and legislatures advance health policies by giving input into their drafting and defending them against legal challenges. State attorneys general have entered the prescription drug affordability arena in both these ways—for example, by initiating lawsuits relating to price fixing by generic drug manufacturers and defending state laws requiring disclosures of pharmaceutical prices. Yet the scope of their collective efforts is not well understood, and little is known about factors that facilitate and hinder them in their pursuit of policy objectives relating to drug affordability. In this Article, we report findings from an empirical study of state attorney general activities relating to pharmaceutical pricing. Drawing from key informant interviews with attorneys working on drug pricing issues as well as a scoping review, we report on how state attorneys general are working to address the problem of drug affordability, how they make decisions about resource investments in this area, what positions state attorneys general to be effective change agents in this space, and what challenges they confront in this work. We situate our results within the broader literature on state attorneys general as policy actors, and we suggest measures that could extend their capacity to successfully tackle the complex issues that give rise to unaffordable drugs.

Introduction

Prescription drug affordability has risen to the very top of the policy agenda for lawmakers and the public. Even during the peak of the COVID-19 pandemic in January 2021, a national poll ranked taking action to lower prescription drug prices as Americans’ second-highest domestic policy priority, with eighty-seven percent of participants rating the issue “extremely important.”[1] Nearly one in four Americans reports difficulty affording their prescription medications, and patients may respond by delaying filling their prescriptions, cutting pills in half, or skipping doses.[2] Despite partisan divisions among voters in many areas of health policy, a bipartisan supermajority of Americans—nearly four in five—believes that prescription drug costs are “unreasonable.”[3]

Notwithstanding both this bipartisan support and pledges by leaders of both parties to take action on the issue following the 2016 election,[4] few substantive reforms have become law at the federal level in recent years, either through legislation or regulation.[5] Rather, states have become the locus of policy action on prescription drug costs. States’ interest in this area arises not only because high drug prices harm consumers, but also because state budgets are directly affected when drug costs for the Medicaid program or state employee health plans rise. Unlike the federal government, states face special financial pressures due to requirements that they balance their budgets.[6] Since 2017, 166 prescription drug pricing bills have become law in forty-eight states, tackling everything from price transparency to regulation of pharmacy benefit managers (PBM) to drug affordability boards.[7] State legislatures are even taking inspiration from bold proposals being introduced at the federal level by considering bills that would adopt international reference pricing approaches within their own states.[8] Despite this energetic activity, state legislative interventions adopted to date have had only modest impacts on drug pricing.[9]

There has been little scholarly attention paid to the drug affordability activities of another state-level policy actor with an important role to play: offices of state attorneys general (AGs).[10] State AGs are important players both in using affirmative tools, including litigation, to advance important policy goals and in defending states against the inevitable legal challenges to state legislative efforts on prescription drug affordability.[11] Past examples of state AG involvement in critical public health issues, including tobacco control and the opioid epidemic,[12] suggest that state AG litigation can be a powerful force in combating business practices that cause health harms. In many states, AGs also have a critical role to play in providing advice to legislatures trying to make progress on drug pricing amidst ever-present threats of lawsuits challenging their enactments. Building on their past experiences, as well as a successful history of addressing high drug prices using healthcare fraud-and-abuse statutes, state AG offices have recently expanded their activities in the drug affordability space to include a variety of interesting, creative approaches leveraging state and federal antitrust laws, state consumer protection laws, emergency price-gouging statutes, and other authorities.

In this Article, we report findings from an empirical study of state AG activities relating to pharmaceutical pricing. Few empirical analyses of state AGs’ activities have been conducted,[13] and to our knowledge, this is the first to focus on drug pricing. Through key informant interviews with attorneys working on drug pricing issues within state AG offices as well as a scoping review, we sought to learn more about how state AGs are addressing the problem of prescription drug affordability, how they make decisions about resource investments in this area, what positions state AGs to be effective change agents in this space, and what challenges they confront in this work. We situate our results within the broader literature on state AGs as policy actors, and we suggest measures that could extend their capacity to successfully tackle the complex issues that give rise to overpriced drugs.

Part I of this Article surveys the existing literature on the role of state AGs, considering key elements of their institutional role and exploring how those elements were instantiated in specific activities in the health context. Part II presents the methods we used in conducting this project. Part III presents the results of our analysis, including the major activities of state AGs in the prescription drug affordability space and key findings relating to how they carry out this work and the factors that empower and constrain them. Part IV reflects on these results, and Part V offers recommendations for strengthening state AGs’ role in this important area.

          [1].      Politico & Harv. T.H. Chan Sch. of Pub. Health, The American Public’s Priorities for the New President and Congress, Politico & Harv. T.H. Chan Sch. of Pub. Health 2 (2021).

          [2].      Ashley Kirzinger, Lunna Lopes, Bryan Wu, & Mollyann Brodie, KFF Health Tracking Poll—February 2019: Prescription Drugs, Kaiser Fam. Found. (Mar. 1, 2019), http://www.kff.org/health-reform/poll-finding/kff-health-tracking-poll-february-2019-prescription-drugs [http://perma.cc/H75W-RSS2].

          [3].      Id.

          [4].      Stacie B. Dusetzina & Michelle M. Mello, Drug Pricing Reform in 2021—Going Big or Going Bipartisan?, JAMA Health F. (July 8, 2021), http://jamanetwork.com/journals/jama-health-forum/
fullarticle/2781947 [http://perma.cc/397H-9M5N].

          [5].      Rachel E. Sachs, The Rhetorical Transformations and Policy Failures of Prescription Drug Pricing Reform Under the Trump Administration, 46 J. Health Pol., Pol’y & L. 1053 (2021). Some small reforms that would attempt to eliminate anticompetitive abuses, such as the Creating and Restoring Equal Access to Equivalent Samples (CREATES) Act, did become law. See Further Consolidated Appropriations Act, 2020 § 610, 21 U.S.C. § 355-2; U.S. Food & Drug Admin., Access to Product Samples: The CREATES Act (2020), http://www.fda.gov/‌drugs/‌guidance-compliance-regulatory-infor
mation/access-product-samples-creates-act [http://perma.cc/YZ2B-QJ7T].

          [6].      See, e.g., David Gamage, Preventing State Budget Crises: Managing the Fiscal Volatility Problem, 98 Calif. L. Rev. 749, 755 (2010).

          [7].      Trish Riley, Celebrating Five Years of State Action to Lower Drug Prices, Nat’l Acad. for St. Health Pol’y (May 18, 2021), http://www.nashp.org/celebrating-five-years-of-state-action-to-lowe
r-drug-prices [http://perma.cc/8YJZ-L7PW].

          [8].      Lev Facher, States Still Can’t Import Drugs from Canada. Now, Many are Seeking to Import Canadian Prices, STAT (Feb. 18, 2021), http://www.statnews.com/2021/02/18/states-canada-drug-pric
es [http://perma.cc/AW6E-VLT9].

          [9].      Michelle M. Mello & Trish Riley, To Address Drug Affordability, Grab the Low-Hanging Fruit, JAMA Health F. (Feb. 25, 2021), http://jamanetwork.com/journals/jama-health-forum/fullart
icle/2777036 [http://perma.cc/E5FD-N6RW] (summarizing data on recent price increases). For a discussion of legal limitations on what states can regulate in the drug affordability space, see infra note 237 and accompanying text.

        [10].      Hereinafter, we use the term “AGs” to refer both to the state’s top attorney and to the attorneys who staff the AG’s office.

        [11].      See, e.g., Ass’n for Accessible Meds. v. Frosh, 887 F.3d 664, 666 (4th Cir. 2018) (invalidating a Maryland statute regulating excessive price increases for essential off-patent and generic drugs).

        [12].      See infra Part I for discussions of these specific examples.

        [13].      See infra Part I for discussions of these specific examples. Danielle Keats Citron, The Privacy Policymaking of State Attorneys General, 92 Notre Dame L. Rev. 747, 751–52 (2016) (analyzing interview data and documentary evidence obtained from Freedom of Information Act requests to study how AGs are working on data privacy issues). Most empirical work has analyzed predictors of AGs’ participation in multistate litigation. Colin Provost, An Integrated Model of U.S. State Attorney General Behavior in Multi-State Litigation, 10 St. Pol. & Pol’y Q. 1, 2–3 (2010) [hereinafter Provost, Integrated Model]; Colin Provost, The Politics of Consumer Protection: Explaining State Attorney General Participation in Multi-State Lawsuits, 59 Pol. Res. Q. 609, 612 (2006) [hereinafter Provost, Politics of Consumer Protection]; Colin Provost, State Attorneys General, Entrepreneurship, and Consumer Protection in the New Federalism, 33 Publius 37, 43–44 (2003) [hereinafter Provost, Entrepreneurship]; Joseph F. Zimmerman, Interstate Cooperation: The Roles of the State Attorneys General, 28 Publius 71, 72–73 (1998); Thomas A. Schmeling, Stag Hunting with the State AG: Anti-Tobacco Litigation and the Emergence of Cooperation Among State Attorneys General, 25 Law & Pol’y 429, 430–31 (2003). A few studies have modeled predictors of states’ decisions to join amicus briefs. See Shane A. Gleason, The Dynamics of Legal Networks: State Attorney General Amicus Brief Coalition Formation, 39 Just. Sys. J. 253, 254 (2018); Margaret H. Lemos & Kevin M. Quinn, Litigating State Interests: Attorneys General as Amici, 90 N.Y.U. L. Rev. 1229, 1242–43 (2015); Cornell W. Clayton, Law, Politics and the New Federalism: State Attorneys General as National Policymakers, 56 Rev. Pol. 525, 544–48 (1994); Thomas R. Morris, States Before the U.S. Supreme Court: State Attorneys General as Amicus Curiae, 70 Judicature 298, 301–02 (1987). Other studies have analyzed characteristics of cases in which states have enforced federal consumer protection statutes, see, e.g., Amy Widman & Prentiss Cox, State Attorneys General’s Use of Concurrent Public Enforcement Authority in Federal Consumer Protection Laws, 33 Cardozo L. Rev. 53, 54–55 (2011); state AGs’ decisions to bring nonpharmaceutical healthcare antitrust suits in the 1970s and early 1980s, see, e.g., Ronald C. Lippincott, Redressing the Imbalanced Political Market for Health Policy: A Role for the State Attorney General?, 9 J. Health Pol., Pol’y & L. 389, 391 (1984); strategies employed in consumer-protection lawsuits, see, e.g., Prentiss Cox, Amy Widman & Mark Totten, Strategies of Public UDAP Enforcement, 55 Harv. J. on Legis. 37, 79–85 (2018); and changes in the types of lawsuits AGs have brought over time, see e.g., Paul Nolette & Colin Provost, Change and Continuity in the Role of State Attorneys General in the Obama and Trump Administrations, 48 Publius 469, 471–73 (2018).

* Mello is a Professor of Law at Stanford Law School; Professor in the Department of Health Policy at Stanford University School of Medicine; and a faculty affiliate of the Freeman Spogli Institute for International Studies, Stanford University; Ph.D., University of North Carolina at Chapel Hill; J.D., Yale Law School; M.Phil., University of Oxford; A.B., Stanford University. Grant funding from the Arnold Ventures is gratefully acknowledged. The funder had no role in the design of the study or the drafting or revision of the manuscript. Mello discloses expert witness fees received from law firms representing generic drug company plaintiffs in a pharmaceutical antitrust lawsuit; Mello and Sachs disclose receiving consulting fees from the National Academy for State Health Policy for authoring reports on policy strategies to regulate prescription drug prices; Mello reports serving as a consultant to CVS Caremark and, after the period in which work reported in this Article was conducted, as an expert witness on behalf of a health insurer suing a pharmaceutical company over alleged off-label promotion (no fees yet received for either engagement); and Sachs reports receiving honoraria for her participation on the Institute for Clinical and Economic Review’s independent Midwest Comparative Effectiveness Public Advisory Council and West Health’s Council for Informed Drug Spending Analysis. The authors extend their thanks to the attorneys who participated in this study and to Katie Siler, Taryn Marks, Heather Joy, Camila Strassle, Quinn Walker, and Corissa Paris for research assistance. For their thoughtful comments and suggestions in developing this Article, the authors would like to thank Margaret Lemos and the scholars who participated in workshops at Washington University in St. Louis School of Law and Johns Hopkins Bloomberg School of Public Health.

           †      Riley is a former Executive Director of the National Academy for State Health Policy; M.S., University of Maine.

           ‡      Sachs is the Treiman Professor of Law, Washington University in St. Louis School of Law; J.D., Harvard Law School; M.P.H., Harvard School of Public Health; A.B., Princeton University.