Vol. 98, No. 2 Archives – Southern California Law Review

Transforming Special Education Litigation: The Milestone of Perez v. Sturgis Public Schools

April 2025April 2025Isabelle Yuan*

In March 2023, the Supreme Court issued a landmark decision in Perez v. Sturgis Public Schools, which held that individuals seeking compensatory damages under federal anti-discrimination laws, like the Americans with Disabilities Act, no longer need to satisfy the administrative exhaustion requirement in the Individuals with Disabilities Act (“IDEA”). Under IDEA, all students with disabilities are entitled to a free appropriate public education, which means that students with disabilities are entitled to individualized education services that meet their needs. In Perez, the plaintiff, Miguel Luna Perez, was a deaf student who alleged that the Sturgis Public Schools discriminated against him by not providing proper accommodations, such as a qualified sign language interpreter in his classes. The district court and the Sixth Circuit dismissed the plaintiff’s claims because of an IDEA provision that requires the plaintiff exhaust all administrative procedures before seeking relief in court. The Supreme Court reversed the Sixth Circuit decision, reasoning that the exhaustion requirement did not apply to Perez as he sought compensatory damages, which are unavailable under IDEA. This ruling means that families can now directly hold schools financially accountable for IDEA violations. This Note discusses Perez’s profound impact on the special education landscape. The greater accessibility for families to litigate will ideally lead to greater accountability and IDEA compliance as schools strategize to avoid litigation and paying costly compensatory damages. Although this decision is a victory for students with disabilities, a major downside of Perez is that paying compensatory damages increases schools’ financial strain and may hinder their abilities to address systemic issues in their special education framework. To ensure that school districts can properly address structural issues and adequately support students with disabilities post-Perez, this Note argues for clearer IDEA guidelines and robust monitoring systems. There are many uncertainties that follow in the wake of Perez, but the decision has the potential to encourage much-needed progress in special education services nationwide.

INTRODUCTION

In March 2023, the United States Supreme Court delivered a landmark decision for students with disabilities. The Court unanimously ruled in Perez v. Sturgis Public Schools that a student with a disability is not required to exhaust the administrative due process procedures under the Individuals with Disabilities Education Act (“IDEA”) before seeking monetary damages under the Americans with Disabilities Act of 1990 (“ADA”) or other federal antidiscrimination laws.¹ Under IDEA, students with disabilities are required to receive a “free and appropriate public education,” but money damages are not available as relief.²

IDEA mandates that students with disabilities receive a free appropriate public education (“FAPE”), which includes providing special education and related services from preschool through secondary school that meet state educational agency standards and conform with the student’s individualized education program (“IEP”).³ An IEP is a written statement developed by a local educational agency, like a school district. It is a collaboration between a child’s parents and school personnel to identify a student’s needs and to develop a plan to achieve educational goals.⁴ Parents are intended to play “a significant role” in the IEP process.⁵ IEPs also prescribe the types of supplementary services the student will receive, along with an explanation of whether the child is able to participate in regular classes with nondisabled children.⁶

Three main federal laws exist to protect children with disabilities: IDEA,⁷ the ADA,⁸ and section 504 of the Rehabilitation Act of 1973 (“section 504”).⁹ Both IDEA and section 504 confer a right to FAPE, though the two have distinct conceptions of the meaning.¹⁰ Though the ADA does not contain a FAPE obligation, its regulations are mandated to be consistent with all section 504 regulations, so it does not undermine section 504’s FAPE obligation.¹¹ The ADA was enacted twenty-five years after IDEA to “provide a clear and comprehensive national mandate” to address pervasive discrimination against individuals with disabilities in areas such as “employment, housing, public accommodations, [and] education . . . .”¹² The ADA mandates that employers and public entities make reasonable modifications to their policies or facilities to accommodate individuals with disabilities. Section 504 is an antidiscrimination statute that also protects individuals with disabilities from being denied benefits or excluded from participation in any program receiving federal funding, including public schools.¹³

IDEA, the ADA, and section 504 all define “disability” differently, although there are overlaps among them. In this Note, “students with disabilities” refers to students who qualify under IDEA. IDEA defines a student with a disability as a child, aged between three to twenty-one, “with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities” who thereby “needs special education and related services.”¹⁴ The ADA’s definition for “disability” is more stringent, as an individual must have “a physical or mental impairment that substantially limits one or more major life activities” and a record of the impairment.¹⁵ Section 504 incorporates part of the ADA definition, but requires that an individual with a disability have a physical or mental impairment that “results in a substantial impediment to employment” and can benefit from vocational rehabilitation services.¹⁶ The ADA and section 504 operate similarly to prohibit discrimination on the basis of disability in programs that receive federal funding.¹⁷ So, although IDEA and ADA both provide relief for individuals with disabilities, they function differently; the ADA addresses broader discrimination in major areas of public life like employment and public accommodations, while IDEA is focused only on special education services in public education.¹⁸ Importantly, the different “disability” definitions mean that a person who receives special education services under IDEA does not necessarily have a disability recognized under the ADA and section 504.¹⁹

In Perez v. Sturgis Public Schools, Miguel Luna Perez, a deaf student in Michigan, faced significant challenges in his education. Perez attended schools in the Sturgis Public School District (“SPSD”) and was entitled to a sign language interpreter during class.²⁰ Although the school provided him with a classroom aide, Perez’s assigned aide was unqualified to teach sign language.²¹ As Perez neared high school graduation, the school informed his parents that he did not fulfill his diploma requirements and would not graduate, which prompted Perez to file a complaint with the Michigan Department of Education.²² Perez alleged that SPSD denied him an adequate education in violation of IDEA, the ADA, section 504, and two other disability laws.²³ SPSD and Perez agreed to a settlement that included post-secondary compensatory education and sign language instruction for Perez.²⁴ Perez subsequently sued SPSD in federal district court.²⁵ The Western District of Michigan dismissed Perez’s ADA claim, citing his failure to exhaust administrative proceedings because he had settled his IDEA claim—a decision the Sixth Circuit affirmed.²⁶

The central question before the Supreme Court in this case was whether IDEA and the ADA required a student to exhaust administrative proceedings against the school district, even when such proceedings would not provide the relief sought.²⁷ The Court’s unanimous opinion held that an ADA lawsuit seeking compensatory damages could proceed without exhausting the administrative processes of IDEA because the remedy sought under the ADA was not one provided by IDEA.²⁸ Perez is important because it changes the landscape of special education law, opening the door for families to seek compensatory damages without undergoing an extensive exhaustion process. Rather than being forced to participate in due process hearings, families can readily hold school districts financially accountable for IDEA noncompliance.

This ruling will have significant implications for the rights of children with disabilities and how school districts handle future litigation. One implication is that the process for seeking compensatory damages from school districts became more streamlined, since families may bypass IDEA’s exhaustion requirement. Previously, the burden of exhausting IDEA’s administrative procedures was a deterrent for families seeking remedies under federal statutes like the ADA and section 504. Another implication is that the rights of students with disabilities are enhanced, as families have more leverage when negotiating settlements with school districts. Families may feel more empowered by the possibility of receiving monetary damages that will offset their litigation costs and propel school districts to address their inadequate special education programs. The availability of compensatory damages will likely lead to an increase in the number of cases brought against school districts.

However, there may be unforeseen negative consequences of increased family advocacy: prolonged legal battles and compensatory damage payouts may strain school districts’ resources and divert attention away from students. School districts that are already struggling financially might experience a further breakdown in their special education services as reduced funding and resources prevent them from addressing the educational needs of students. It may be that some families will receive rightful compensation while other students with disabilities struggle against systemic issues in the administration of special education programs exacerbated by the effects of the Perez decision.

This Note proposes that the Supreme Court’s decision in Perez will have far-reaching consequences for the families of students with disabilities and school districts’ approaches to litigation, as well as policy implications for educational agencies in the implementation of special education services under IDEA. Part I of this Note offers an overview of IDEA’s history, the statute’s requirements and procedural framework, and an explanation of IDEA’s exhaustion requirement that is central to the discussion in Perez. Also, Part I offers a brief explanation of the ADA and section 504 in relation to IDEA and the standards for receiving compensatory damages through these laws. Part II discusses a few important Supreme Court cases that litigated standards and definitions under IDEA. To fully understand the importance of the Perez decision, it is important to contextualize Perez alongside other IDEA cases heard by the Supreme Court. Part III explores the background and discussion of Perez and its implications for future special education litigation. Finally, Part IV explores potential consequences of the Perez decision and offers policy recommendations on how educational agencies can better meet IDEA requirements and address the needs of students with disabilities.

I. FOUNDATIONS OF SPECIAL EDUCATION LAW

This Part provides background information about the creation of IDEA and a detailed explanation of the statute’s intentions, procedural framework, and enforcement through state educational agencies. This Part also briefly explains IDEA’s exhaustion requirement, which is central to Perez. The final Section of this Part describes the process and standards for a party bringing a discrimination claim for money damages under the ADA and section 504, since compensatory damages are unavailable under IDEA.

A. History of IDEA

Beginning with the Civil Rights Movement, advocates for students with disabilities argued that the exclusion of students with disabilities from schools was a denial of equal educational opportunities analogous to racial segregation in schools.²⁹ Advocacy organizations and parents sued states, alleging that inappropriate educational services violated the Constitution.³⁰ Congress responded by enacting the Elementary and Secondary Education Act of 1965, in which the federal government provided funding to educate students below the poverty line and improve the education of students with disabilities in public schools.³¹ In 1970, the Education of the Handicapped Act (“EHA”) was passed and provided grant funding for higher education institutions to develop special education teacher training programs.³² Two 1972 cases, Pennsylvania Ass’n for Retarded Children (PARC) v. Pennsylvania and Mills v. District of Columbia, are considered to be the most notable cases in special education and foundational to the ideas in IDEA.³³ In PARC, the district court approved an amended consent agreement that obligated the state of Pennsylvania to place every child with a disability “in a free, public program of education and training appropriate to the child’s capacity.”³⁴ In Mills, the district court held that the District of Columbia public school system must utilize their financial resources so “that no child is entirely excluded from a publicly supported education consistent with [their] needs and ability to benefit therefrom,” especially for students with disabilities.³⁵ Though PARC and Mills are most frequently referenced, there were more than thirty federal cases during this period in which courts upheld the same principles outlined in PARC and Mills.³⁶

In the early 1970s, only 3.9 million of the 8 million children with documented disabilities in the United States had access to an adequate education.³⁷ In 1975, President Gerald Ford signed into law an amendment to the EHA, the Education for All Handicapped Children Act (“EAHCA”).³⁸ The EAHCA’s purpose was to ensure that students with disabilities received a FAPE, to protect the rights of students and parents, and to assist states and school districts in providing services.³⁹ The EAHCA’s enactment was significant because it marked the first time that a FAPE was memorialized in the law.⁴⁰

In 1990, amendments were passed to the EAHCA, and the law was renamed as the Individuals with Disabilities Education Act, as it is known today.⁴¹ IDEA’s purpose is to ensure that every child with a disability received a FAPE.⁴² Importantly, IDEA provides funding to states and school districts that comply with its mandates.⁴³ The combination of IDEA’s function and purpose make it both an educational grant program and a civil rights statute, rendering it a unique piece of legislation. In 1997, amendments restructured IDEA into four parts: (1) general provisions; (2) assistance for all children with disabilities; (3) infants and toddlers with disabilities; and (4) national activities to improve the education of students with disabilities.⁴⁴

B. Inside IDEA

1. IDEA Requirements and Procedural Framework

IDEA contains an administrative framework that was intended to ensure that parents of students with disabilities have enforceable opportunities to participate in all aspects of their children’s education.⁴⁵ The Supreme Court has made it clear that IDEA guarantees a substantively adequate program to all eligible students with disabilities, which is satisfied when a child’s IEP sets out an educational program that reasonably allows the child to receive educational benefits and advance from grade to grade.⁴⁶ IDEA is centered around the provision of a FAPE, which must be made in conformity with the IEP.⁴⁷ IDEA does this by guaranteeing a FAPE in the least restrictive environment (“LRE”) for all students with disabilities and through the creation and implementation of IEPs.⁴⁸ A FAPE in conformity with an IEP must be specially designed to meet the unique needs of a child with a disability and include any related services that would benefit the child.⁴⁹ All states covered by IDEA must provide a child with a disability with special education and related services as prescribed by his IEP.⁵⁰ IDEA defines “special education” as specially designed instruction to meet the unique needs of a child with a disability, and “related services” as the support services required to assist a child to benefit from that instruction.⁵¹ These services can include speech-language pathology, interpreters, occupational therapy, and counseling services.⁵²

A FAPE must “have been provided at public expense, under public supervision and direction, and without charge” at an appropriate level of education that meets state standards.⁵³ The LRE means that, to the “maximum extent appropriate,” children with disabilities are to be educated with children who are not disabled in a regular classroom setting, and that removal of children with disabilities from the regular classroom environment occurs only in cases of severe disability or when supplementary services “cannot be achieved satisfactorily.”⁵⁴

IDEA requires school districts to develop an IEP for each child with a disability.⁵⁵ Parental concerns regarding their child’s education must be considered by the team.⁵⁶ States are required to oversee this process and ensure that parents of a child with a disability are involved in the IEP discussion and any decisions about the educational placement of their child.⁵⁷ A student’s IEP must state the special education and related services that will be provided so that the child may advance toward achieving the annual goals set in their IEP.⁵⁸ An IEP must also state the child’s current levels of academic achievement and functional performance, while explaining how the child’s progress toward achieving their annual goals will be measured.⁵⁹ Based on these goals, an IEP will prescribe the special education and related services that will be provided.⁶⁰

IDEA has a comprehensive enforcement scheme that requires states to establish and maintain procedural safeguards to ensure that students with disabilities are receiving their basic right to education—a FAPE.⁶¹ State and local compliance with IDEA is monitored by federal review.⁶² Procedural safeguards are in place to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.”⁶³ For example, states are mandated to provide an opportunity for parents to examine all relevant school records.⁶⁴ Whenever parents have complaints about the adequacy of their child’s education, like in the development of their IEP, the involved state must provide an opportunity for the party to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”⁶⁵

Once a party presents a complaint, a review process begins, in which the parents of the child with a disability discuss their complaint with the local educational agency in a preliminary meeting and the parties work to reach a resolution.⁶⁶ If the agency fails to resolve the complaint to the parent’s satisfaction within thirty days, the party may request an impartial due process hearing, which can be conducted by either the local educational agency or the state educational agency.⁶⁷ A due process hearing is overseen by an impartial hearing officer who considers sworn testimony and evidence to make a decision.⁶⁸ The hearing officer’s decision must be made on substantive grounds based on a determination of whether the child received a FAPE.⁶⁹ For a hearing officer to be “impartial,” they must not be an employee of the state educational agency or the child’s school district.⁷⁰ The officer may find a violation of a FAPE only if the procedural inadequacies “impeded the child’s right to a free appropriate public education,” “significantly impeded the parents’ opportunity to participate in the decisionmaking process,” or deprived the child of educational benefits.⁷¹ Notably, decisions made in due process hearings are binding on both parties, though parties may appeal a decision of the local educational agency to the state educational agency.⁷² Once the state educational agency reaches a decision, the aggrieved party may bring an action in state or federal district court.⁷³ The court will then review the administrative record, with supplementary evidence submitted at the request of a party, before granting “such relief as the court determines is appropriate” to the prevailing party.⁷⁴

IDEA does not grant compensatory damages, but it does provide for discretionary attorneys’ fees.⁷⁵ Most IDEA remedies have been equitable remedies, such as tuition reimbursement or injunctive relief.⁷⁶ Courts have also been given broad discretion in providing equitable relief that it finds appropriate and consistent with the purposes of IDEA, ADA, and section 504.⁷⁷ A court or hearing officer may require an educational agency to reimburse the parents of a child with a disability for the cost of private school enrollment if the school district cannot adequately provide a FAPE.⁷⁸

Once a state accepts IDEA’s financial assistance, an eligible child under the statute has a substantive right to a FAPE.⁷⁹ IDEA has six categories of mandates that states must meet to receive funding: (1) educational agencies must provide services to all qualified students with disabilities, regardless of the severity of their disabilities; (2) educational agencies must evaluate each student with a disability that requests a FAPE; (3) all students with disabilities aged between three and twenty-one who need special education and related services must receive a FAPE; (4) students with disabilities must be educated in the general classroom or the LRE as much as possible; (5) several procedural safeguards must be followed to guarantee a FAPE; and (6) parents must be involved at every stage of the process.⁸⁰

2. State Responsibilities Under IDEA

In the United States, Congress does not have constitutional authority over education, so it exerts pressure on states using its spending powers,⁸¹ particularly by offering federal funding to state and local agencies that meet IDEA conditions.⁸² This funding allows the federal government to oversee state educational authorities, such as state departments of education. State educational authorities then oversee local educational authorities, which are responsible for the implementation of IDEA mandates in schools.⁸³ But IDEA serves only as a floor for student rights, and many states have established their own statutes to further expand upon federal mandates in the special education context. These state laws play a critical role in shaping the law for students with disabilities, so the landscape of disability-rights law can vary significantly from one jurisdiction to another. For example, what a student must do to exhaust IDEA administrative requirements before bringing a lawsuit depends on each state’s rules. IDEA allows states to choose between a one- or two-tiered system for administrative review. In a one-tiered system, a state educational agency decides a student’s case.⁸⁴ In a two-tiered system, a local educational agency decides the case before a party can appeal for an impartial hearing conducted by the state educational agency; all of which must happen before a civil action may be brought in a state or federal district court.⁸⁵

Under IDEA, state and local departments of education receive federal financial assistance if they provide a FAPE for children with disabilities.⁸⁶ A state may provide educational benefits that exceed those required by IDEA, with the state standards being equally enforceable through IDEA.⁸⁷ A state must certify to the Secretary of Education that it has policies and procedures that will meet IDEA’s conditions, especially IDEA’s principal obligation to provide a FAPE to all eligible students with disabilities.⁸⁸ A local educational agency or school district is eligible to receive a share of the state’s federal funding if it has policies and programs that are consistent with the state’s policies.⁸⁹ Thus, a school district’s obligations under IDEA are dependent on the state’s formal procedures and obligations, which must align with IDEA.

3. Section 1415(l): IDEA Exhaustion Requirement

In § 1415(l) of IDEA (“section 1415(l)”), the statute requires that parties first exhaust administrative remedies before filing a complaint in state or federal court regarding the denial of a FAPE.⁹⁰ As the Supreme Court explained in Weinberger v. Salfi,

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.⁹¹

The exhaustion doctrine is also premised on the idea “that [educational] agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer.”⁹² Although courts have discretion in their decision to rule on exceptions to the exhaustion requirement, the “[a]pplication of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.”⁹³

In analyzing whether an exception to the rule should be granted, courts previously considered whether the purposes of exhaustion would be served by requiring plaintiffs to exhaust administrative remedies.⁹⁴ Congress’s aim was to allow educational agencies and parents to work together in developing a child’s IEP.⁹⁵ Requiring the exhaustion of administrative processes allows for an exploration of the educational issues at hand, a complete consideration of the factual record, and the opportunity for educational agencies to correct the problems in their special education programs.⁹⁶

There have been exceptions to the exhaustion requirement in certain situations, though the accepted exceptions differ across circuits.⁹⁷ Before the Perez decision, courts recognized that there were instances in which the exhaustion requirement did not further the goals of IDEA and excused exhaustion, but only “in cases of futility and inadequacy.”⁹⁸

C. The ADA and Section 504 of the Rehabilitation Act

The ADA and section 504 of the Rehabilitation Act of 1973 are federal statutes focused on preventing discrimination against individuals with disabilities.⁹⁹ Section 504 applies to all organizations that receive federal funding, which includes public schools.¹⁰⁰ Prior to section 504, neither federal, state, nor local law protected people with disabilities from discrimination in schools.¹⁰¹ The ADA extends to secular private schools that do not receive federal funding.¹⁰² The ADA was enacted twenty-five years after IDEA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”¹⁰³ The ADA covers a broader range of areas than IDEA since it focuses on all types of discrimination individuals face in areas such as employment, housing, and health services, in addition to education.¹⁰⁴ Title II of the ADA forbids any public entity, including schools, from discriminating based on disability,¹⁰⁵ and section 504 applies the same prohibition to any federally funded program.¹⁰⁶ The Supreme Court has interpreted section 504 as “demanding certain ‘reasonable’ modifications to existing practices in order to ‘accommodate’ persons with disabilities.”¹⁰⁷

Unlike IDEA, both the ADA and section 504 authorize individuals to seek redress for violations of their rights by bringing suits for money damages.¹⁰⁸ The available remedies under section 203 of the ADA are the same remedies available under section 504 of the Rehabilitation Act, which are also the same remedies available under Title VI of the Civil Rights Act of 1964.¹⁰⁹ Based on that statutory language, the Supreme Court has found that “the remedies for violations of § 202 of the ADA and § 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.”¹¹⁰

Although the ADA is intended to protect individuals with disabilities, many people have been refused coverage.¹¹¹ Many courts have ruled that plaintiffs were not covered under the ADA’s definition of “disability,” as they did not fulfill any of the ADA’s three requirements of having “a physical or mental impairment that substantially limits one or more major life activities,” having “a record of such an impairment,” or “being regarded as having such an impairment.”¹¹² The narrow interpretation of the definition has shrunk the number of people in this protected class.¹¹³

The standard for obtaining compensatory damages under the ADA or section 504 is substantial. Different circuits have adopted similar requirements to establish a discrimination case under either the ADA or section 504.¹¹⁴ To establish a disability discrimination claim under the ADA or section 504, a plaintiff must demonstrate that a student is a “qualified individual with a disability”; “was excluded from participation in,” or otherwise discriminated against by “a public entity’s services, programs or activities”; and that exclusion or discrimination was the result of the student’s disability.¹¹⁵ Claims for compensatory damages under the ADA require a finding of intentional discrimination or an intentional denial of benefits, such as deliberate indifference from a school district.¹¹⁶ For example, in the Ninth Circuit, to prevail on a section 504 claim, a plaintiff must establish that (1) they have a disability; (2) they were otherwise qualified to receive a benefit; (3) they were denied the benefit solely because of their disability; and (4) the program receives federal financial assistance.¹¹⁷ To receive compensatory damages, a plaintiff must additionally prove intentional discrimination, such as showing deliberate indifference.¹¹⁸

II. JUDICIAL MILESTONES IN SPECIAL EDUCATION

This Part gives a brief overview of a few important IDEA cases in which the Supreme Court has decided individual disputes between children and their schools. It also aims to contextualize the Supreme Court’s decision in Perez by highlighting the Court’s role in clarifying IDEA provisions and its consistent deference to parents advocating for their children’s educational rights. Finally, this Part explains Fry v. Napoleon Community Schools, which is the last IDEA case the Supreme Court heard before Perez and addresses related questions about IDEA’s exhaustion requirement.

In Board of Education v. Rowley, the Supreme Court interpreted the term “appropriate” in IDEA’s statutory construct pertaining to FAPE.¹¹⁹ The Court rejected lower court decisions that required educational achievement to a child’s “full potential,” instead concluding that one of the main functions of IDEA was to create “access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with disabilities.¹²⁰ The Court interpreted “appropriate” to establish a “basic floor of opportunity” that required school districts to provide disabled children with an “educational benefit.”¹²¹ This case has been extremely important in clarifying the level of service school districts are required to provide to students.

Amy Rowley, a deaf student, attended public school and received services under the then EAHCA.¹²² When Rowley’s parents requested that the school provide her with a sign language interpreter, school officials refused, maintaining that the services she had already received were sufficient for her needs.¹²³ Rowley received speech and language therapy and had an audio amplification system, which the school argued was sufficient due to Rowley’s passing grades.¹²⁴ Rowley’s parents filed an administrative complaint based on the school’s refusal to provide her with a sign language interpreter, which resulted in a favorable decision for the school district. The federal district court then ruled in the parents’ favor, which was affirmed by the Second Circuit.¹²⁵ The school district appealed to the Supreme Court, which discussed two central questions: “What is meant by the [EAHCA’s] requirement of a ‘free appropriate public education’? And what is the role of state and federal courts in exercising the review granted by [EAHCA]?”¹²⁶

The Court’s majority opinion looked at the Congressional intent of the EAHCA, which focused on remedying the exclusion of children with disabilities from normal school environments. Justice Rehnquist wrote that “the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”¹²⁷ The Court explained that a school’s obligation was satisfied by providing the basic floor of services rather than the maximum needed for a child to succeed, since that would go farther than what the Court believed Congress intended.¹²⁸ Notably, the Court also declared that a court had the authority to grant whatever relief it deemed appropriate under the EAHCA where a school failed to satisfy procedural obligations, but emphasized that this authority was limited to procedural compliance rather than imposing substantive educational standards.¹²⁹ The Court’s decision in Rowley had practical implications for district courts, as many were guided by the two questions the Rowley Court posited: “First, has the State complied with the procedures set forth in the [EAHCA]? And second, is the individualized educational program developed through the [EAHCA’s] procedures reasonably calculated to enable the child to receive educational benefits?”¹³⁰ Courts have used these two questions to determine whether school districts have done enough for students, and maintain that they may not substitute any preferred policies over the school’s discretion.¹³¹ The Rowley Court also recognized that states have the primary responsibility for developing and executing educational programs and determining educational policies since “courts lack the ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions of educational policy.’ ”¹³²

In Endrew F. v. Douglas County School District RE-1, the Supreme Court clarified its position on IDEA’s FAPE provision, finding that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”¹³³ A child with disabilities should still have the opportunity to be educated in a regular classroom that will “ ‘enable the child to achieve passing marks and advance from grade to grade.’ ”¹³⁴ In Endrew, the parents of a fifth-grade student with autism sought reimbursement of tuition costs for placement in a private school.¹³⁵ His parents were dissatisfied with his progress in public school because his IEP goals carried over year-to-year and he failed to make progress in his learning.¹³⁶ Endrew’s parents filed a complaint with the Colorado Department of Education seeking reimbursement, which required them to demonstrate that the school district had not provided Endrew with a FAPE.¹³⁷ The district court felt that modifications to Endrew’s IEP each year were “sufficient to show a pattern of, at the least, minimal progress.”¹³⁸ The district court explained that minimal progress was all that the Rowley standard required of a school district.¹³⁹ The Tenth Circuit affirmed the lower court’s decision, agreeing that special education services only need to allow a student with disabilities to make “some progress.”¹⁴⁰

The Supreme Court stated that, “To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”¹⁴¹ The Court felt that an IEP was designed to create a plan for “pursuing academic and functional advancement,” which connected with IDEA’s purpose to help prevent the exclusion of children with disabilities in classrooms.¹⁴² Thus, a student offered an education that merely allowed some progress “can hardly be said to have been offered an education at all.”¹⁴³ The Court refrained from creating a bright-line test for determining what “appropriate progress” meant, reasoning that it should be determined depending on each unique child.¹⁴⁴

Parents of students with disabilities “often do not feel they are empowered when the [IDEA] system fails them,” as litigation is not an accessible avenue for everyone.¹⁴⁵ In Endrew, Endrew’s parents first paid for private specialized schooling before filing a complaint seeking reimbursement from the state,¹⁴⁶ requiring them to pay for expert witnesses and an attorney.¹⁴⁷ IDEA litigation is a lengthy process with a difficult standard for many families to meet. Endrew had to prove that the school district did not allow him to make appropriate progress on his IEP. To meet that standard, he needed professional experts who could attest to the progress he was capable of making and what services he needed to make that amount of progress beyond what the school district provided. Without the means for litigation costs and private education, Endrew would not have been able to present evidence of his progress. His case illustrates how difficult IDEA due process procedures are for parents who lack the means, agency, or understanding to navigate the process.

In Fry v. Napoleon Community Schools, the Supreme Court clarified the procedure that applies when a plaintiff files a complaint under a statute other than IDEA, finding that IDEA’s exhaustion requirement is “not necessary when the gravamen of the plaintiff’s suit is something other than the denial of IDEA’s core guarantee” of a FAPE.¹⁴⁸ There was confusion in lower courts about how to determine whether a complaint qualified as a claim under IDEA or under the ADA, section 504, or other federal laws.¹⁴⁹ In Fry, the parents of a kindergartener with cerebral palsy sought permission to let their daughter bring her service dog to school.¹⁵⁰ The school district denied the request because she already received similar services and a service dog would be “superfluous.”¹⁵¹ The parents first filed a complaint with the U.S. Department of Education’s Office for Civil Rights, alleging ADA and section 504 violations, which resulted in a favorable decision for the parents.¹⁵² The parents then brought these actions against the school district, seeking monetary and declaratory relief due to the school’s denial of their daughter’s right to equal access.¹⁵³ The district court dismissed their action pursuant to section 1415(l) of IDEA because the parents failed to exhaust their administrative remedies under IDEA.¹⁵⁴ The Sixth Circuit affirmed the district court’s decision because, when the injuries alleged relate to the child’s education and there is a remedy available through IDEA, “waiving the exhaustion requirement would prevent state and local educational agencies from addressing problems they specialize in addressing . . . .”¹⁵⁵

The Supreme Court examined section 1415(l)’s exhaustion requirement, finding that it “hinges on whether a lawsuit seeks relief for the denial of a FAPE.”¹⁵⁶ If a lawsuit alleges a denial of a FAPE, then it cannot circumvent section 1415(l), even if the plaintiff sues under a different federal law.¹⁵⁷ However, the Court did specify that if a lawsuit is brought under a different federal law and “the remedy sought is not for the denial of a FAPE, then exhaustion of IDEA’s procedures is not required.”¹⁵⁸ This is because an administrative hearing under IDEA could not provide any relief, even if the claim originates from the mistreatment of a child with disabilities.¹⁵⁹

While Fry clarified certain aspects of the exhaustion requirement, the issue of monetary damages under IDEA remained unsettled, as circuit courts were divided on whether courts could excuse exhaustion.¹⁶⁰ Congress had crafted IDEA “exhaustion requirement to be flexible so that meritorious cases would get a judicial hearing, [but] many courts have applied the rule rigidly, barring cases even when the plaintiffs present persuasive reasons for excusing exhaustion.”¹⁶¹ Fry left an unresolved issue regarding IDEA’s exhaustion requirement, meaning that the plaintiffs continued to be barred when trying to seek compensatory damages under the ADA or section 504 when they failed to first exhaust their options. Had the Court answered the question then, school district responses likely would have handled IDEA complaints with more care and screened them for potential ADA and section 504 violations.

III. PEREZ V. STURGIS PUBLIC SCHOOLS: A TURNING POINT IN DISABILITY RIGHTS ADVOCACY

Part III delves into Perez, explaining how the petitioner, Miguel Luna Perez, faced educational neglect and misrepresentation from his school district before pursuing an ADA claim for emotional distress. Perez establishes a precedent for families to pursue claims under federal laws like the ADA and section 504 without exhausting IDEA procedures, offering new legal avenues for students with disabilities. This Part argues that this decision will have significant repercussions for special education litigation, as it enhances families’ leverage in legal disputes and places financial strain on school districts’ budgets and abilities to provide special education services.

A. Discussion of Perez v. Sturgis Public Schools

Petitioner Miguel Luna Perez was a deaf student who attended schools in Michigan’s Sturgis Public School District from ages nine to twenty.¹⁶² Perez was an individual who qualified as having a disability under IDEA and the ADA because he had a physical and mental impairment that substantially limited multiple major life activities, like hearing and speaking.¹⁶³ Perez claimed that SPSD was required to provide an aide to translate classroom instruction and that his aides were unqualified sign language interpreters.¹⁶⁴ SPSD made multiple misrepresentations to Perez and his parents, including his academic achievements by inflating his grades, that his aides knew sign language, and that he had access to the same educational services as his peers.¹⁶⁵ Perez claimed that, in March 2016, just months before his high school graduation, SPSD informed him and his parents that he would not receive a high school diploma and instead would receive a “certificate of completion.”¹⁶⁶

This prompted Perez and his family to file an administrative due process claim with the Michigan Department of Education.¹⁶⁷ Perez and SPSD reached a settlement that included payment for additional schooling at the Michigan School for the Deaf, sign language instruction for Perez and his family, and payment of the family’s attorneys’ fees.¹⁶⁸ The settlement gave Perez what he was entitled to under IDEA, but there was another legal problem—SPSD also violated Perez’s rights under the ADA.

Perez subsequently sued in the Western District Court of Michigan, seeking compensatory damages for emotional distress under the ADA.¹⁶⁹ SPSD moved to dismiss, claiming that under section 1415(l) of IDEA, Perez was barred from bringing his ADA claim until he exhausted IDEA’s administrative procedures.¹⁷⁰ The district court agreed with SPSD’s argument and dismissed the suit, which the Sixth Circuit affirmed due to circuit precedent that previously addressed the issue.¹⁷¹ The Sixth Circuit opinion stated that, because Perez settled his IDEA claim, he was “barred from bringing a similar case against the school in court—even under a different federal law.”¹⁷² The Sixth Circuit found that federal law requires families to first exhaust IDEA’s administrative procedures as if the action was brought under IDEA, even if they were suing under another statute.¹⁷³ Because Perez’s core complaint was that SPSD denied him a FAPE, his suit sought relief that was available under IDEA, meaning he had to complete IDEA’s exhaustion requirements even if he wanted to bring a separate ADA claim.¹⁷⁴

The case was then brought before the Supreme Court, and the central question concerned “the extent to which children with disabilities must exhaust the[] administrative procedures under IDEA before seeking relief under other federal antidiscrimination statutes, such as the [ADA].”¹⁷⁵ There had been circuit splits on the interpretation of section 1415(l), so the Court finally decided to address this issue.¹⁷⁶ Previously, the Court declined to address this issue in Fry, articulating that “we leave for another day a further question about the meaning of § 1415(l): Is exhaustion required when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests—here, money damages for emotional distress—is not one that an IDEA hearing officer may award?”¹⁷⁷

Here, the Court examined two features in section 1415(l): first, that IDEA is not meant to restrict an individual’s ability to seek remedies under the ADA or “ ‘other Federal laws protecting the rights of children with disabilities,’ ”¹⁷⁸ and second, that a qualification in the statute prohibits certain lawsuits with the language, “except that before the filing of a civil action under such laws seeking relief that is also available under [section 1415(l)], the procedures under subsections (f) and (g) shall be exhausted . . . .”¹⁷⁹ The preceding subsections (f) and (g) discuss children’s rights to due process hearings and the ability to appeal decisions to state educational agencies.¹⁸⁰

Perez interpreted the statute to require exhaustion of the administrative processes discussed in subsections (f) and (g) only to the extent he pursued a suit for remedies IDEA provided.¹⁸¹ Perez argued that this reading would not “foreclose[] his . . . claim because his ADA complaint [sought] only compensatory damages, a remedy everyone before [the Court] agree[d] IDEA cannot supply.”¹⁸² In contrast, SPSD interpreted the statute “as requiring a plaintiff to exhaust subsections (f) and (g) before [they] may pursue a suit under another federal law if that suit seeks relief for the same underlying harm IDEA exists to address.”¹⁸³ This reading would have prevented Perez from bringing his ADA suit because it stemmed from a FAPE violation, which is a harm IDEA addressed.¹⁸⁴ And Perez had already settled his administrative complaint instead of exhausting the administrative processes in subsections (f) and (g), so he would have been foreclosed from his ADA suit.¹⁸⁵

The Court found Perez’s interpretation comported more consistently with IDEA, particularly with section 1415(l)’s use of “remedies,” which treated it synonymously with “relief.”¹⁸⁶ The first clause discusses remedies, the dictionary definition of which is an enforcement of rights like money damages or an injunction.¹⁸⁷ The statute reads that “[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities,” so it should be construed that IDEA does not restrict or limit the availability of remedies like money damages under federal statutes, including the ADA.¹⁸⁸ The Court noted that there is an exception to this rule, which prevents individuals from seeking redress under other federal laws unless they exhaust the administrative procedures.¹⁸⁹ But the exception “does not apply to all suits seeking relief that other federal laws provide.”¹⁹⁰ The statute requires the exhaustion of administrative processes to apply only to lawsuits that seek relief that is also available under IDEA.¹⁹¹ Thus, the Court concluded that the exception did not bar Perez from his ADA suit, because he sought compensatory damages—a form of relief that IDEA does not provide.¹⁹² This interpretation required the Court to treat “remedies” and “relief” synonymously, which the Court found IDEA did in various places.¹⁹³ For example, the second clause in section 1415(l) refers to “seeking relief,” which complements how a plaintiff’s complaint includes “a demand for the relief sought.”¹⁹⁴

SPSD then responded by raising Fry as precedent.¹⁹⁵ However, Fry “went out of its way to reserve rather than decide [the] question” brought up in Perez, so it did not advance the school district’s argument.¹⁹⁶ In Fry, the Court held that IDEA’s exhaustion requirement does not apply unless a plaintiff seeks relief for a denial of a FAPE, since that is the only relief available from IDEA.¹⁹⁷ The Court found that Perez presented an analogous situation but ultimately asked a different question about whether a plaintiff needs to exhaust the administrative remedies when they are seeking a remedy that IDEA does not provide.¹⁹⁸ Similar to the Court’s answer in Fry, a plaintiff does not need to exhaust administrative processes under IDEA in this situation.¹⁹⁹ SPSD argued that Congress had practical reasons for requiring exhaustion, no matter the plaintiff’s preferred remedy, because exhaustion enables agencies to exercise their “special expertise” and promotes efficiency.²⁰⁰ The Court found SPSD’s argument “unclear” and that it was a “mistake[] to assume . . . that any interpretation of a law” that better serves its presumed objectives “must be the law,” as laws are the result of “compromise[s],” and no law relentlessly pursues its purposes.²⁰¹ Moreover, the Court reasoned that Congress might have aimed to ease the demand for administrative exhaustion when a plaintiff seeks a remedy available under IDEA but allow an exemption from exhaustion when a plaintiff seeks a remedy that IDEA cannot provide.²⁰² The Court found Perez’s argument more persuasive, reversed the decision of the Sixth Circuit, and remanded the case so Perez could proceed with his ADA lawsuit in district court.²⁰³

B. Perez’s Impact on Special Education Litigation

The Perez decision will impact how school districts and other educational agencies approach and settle IDEA complaints in the future. Families now have more leverage against school districts because they are not barred from seeking compensatory damages for failure to exhaust administrative procedures. School districts will likely approach settlement discussions differently, knowing that families now have an opportunity to be awarded compensatory damages. Although families may have more leverage during negotiations, a potential consequence could be that the Perez decision may lead to greater financial strain on school districts, which would prevent other students with disabilities from receiving their basic educational rights. School districts should anticipate an increase in the number of cases litigated because students can now “bypass [the] often slow-moving administrative proceedings under IDEA when their chief claim is for damages under other federal laws . . . .”²⁰⁴

It is worth noting that, due to systemic issues within school districts and state departments of education, even when families are awarded compensatory remedies, educational agencies may not disburse payments promptly or at all. For example, in New York City, parents of children with disabilities have sought the enforcement of orders from impartial hearings entered pursuant to IDEA, which the state department of education has failed to execute due to limited resources.²⁰⁵ In LV v. New York City Department of Education, parents sued the New York City Department of Education (“NYC DOE”) for failure to implement orders, such as funding tuition programs.²⁰⁶ The parents alleged that the NYC DOE had a “systemic problem” due to its failure to maintain a dedicated system for the timely enforcement of the orders, which deprived the plaintiffs of their right to a FAPE.²⁰⁷ In 2008, a settlement agreement between the parents and the NYC DOE was approved.²⁰⁸ Under the settlement, the NYC DOE was required to implement all impartial hearing orders within the time frame stipulated in the order or thirty-five calendar days after the order date if no time limit was specified.²⁰⁹ However, the NYC DOE failed to comply with the settlement terms for more than a decade. A Special Master was appointed in 2021 to investigate the NYC DOE’s delays in the implementation of the orders. In March 2023, the Special Master issued a report after conducting interviews with the plaintiffs, families, school staff, and NYC DOE staff.²¹⁰

The report highlighted that impartial hearings and orders have reached an all-time high in New York City, with the increased volume of requests attributable to the COVID-19 pandemic.²¹¹ It was recommended that the NYC DOE address its staffing crises in the short term and then digitalize its orders for better organization.²¹² One reason the NYC DOE provided for its inability to implement orders was due to NYC DOE staffing shortages.²¹³ The Special Master report was extremely detailed and included many short- and long-term action steps for the NYC DOE, including forty-one required steps that the NYC DOE had to take within a year. There were suggestions for the hiring, training, and retention of staff in the Implementation Unit, which oversees implementing decisions from impartial hearings, while other changes included creating a structure for parents to contact the NYC DOE when their orders are not implemented, providing a support hotline, and building better technology systems to implement orders.²¹⁴

Although this is a victory for families of students with disabilities in New York City, it comes after a decade of inaction by the NYC DOE. This was due to systemic failures on multiple levels, which is not uncommon in school districts and state educational agencies around the country. This is just one example of how structural issues in a system and a consistently underfunded agency will lead to ineffective educational opportunities. LV v. New York City Department of Education is an example of the persistent challenges in ensuring the effective implementation of special education remedies, even when the law provides for a favorable solution. Students legally entitled to reimbursements or tuition assistance from a school district remained in complex litigation for years to accomplish their goals. The tuition some of the plaintiffs requested was only a few thousand dollars, but the NYC DOE was so ill-equipped at executing orders that it remained noncompliant for years. Unfortunately, there is no simple solution for the NYC DOE’s structural issues. Rather, the NYC DOE faces a complex undertaking as it will need to upgrade its infrastructure and rehaul its staff to better respond to the influx of settlements that have piled up and the new hearings that are coming down the horizon.

This case is illustrative of how receiving monetary compensation is important and helpful for students with disabilities to receive a FAPE under IDEA, but a compensatory remedy might not yield anything substantial. The NYC DOE was bound by court orders, but the plaintiffs in LV still waited more than a decade for compensation. And it is unclear whether the recent judicial order will actually result in greater implementation of orders for other students with disabilities. It seems likely that students with disabilities will continue to endure neglect in the system if the state and educational agencies do not have proper mechanisms in place to provide students with their remedies. The NYC DOE manages the largest public school system in the nation, with a 2023–2024 school year budget of $37.5 billion.²¹⁵ Even as the NYC DOE likely has more resources than other school districts, it still struggles with the volume of orders and order implementation. As more decisions ordering monetary remedies are made post-Perez, school districts and state education departments will need to upgrade their infrastructure to deal with outstanding orders and future settlements. Another concern is whether there is funding and leadership dedicated to making those changes. At schools that struggle with leadership turnover among superintendents or principals, this can lead to inconsistency with vision and changing priorities affecting staff effectiveness and cohesiveness and making it even more difficult to train staff and support teachers in developing strong relationships with students.²¹⁶ Educational agencies should take the Perez decision seriously and take LV as a precautionary tale for judicial orders that compel major changes to address structural issues in regard to special education programs and the rights of students with disabilities.

In recent cases decided in the months following the Perez decision, courts have put together IDEA statute and the precedents from Fry and Perez to evaluate suits against public schools for alleged violations of IDEA, the ADA, or other antidiscrimination statutes. In Dale v. Suffern Central School District, the Southern District of New York found that the plaintiffs were not required to exhaust administrative remedies because the plaintiffs sought “a form of relief that IDEA cannot provide—specifically, compensatory damages,” and because exhaustion was not required in the circumstances because of the ruling precedent of Perez.²¹⁷ In Roe v. Healey, a First Circuit case decided in August 2023, the district court below found that plaintiffs were required to exhaust all their FAPE-related claims first, which included claims under IDEA, associated Massachusetts regulations, section 504 of the Rehabilitation Act, the ADA, and the Fourteenth Amendment (enforced through § 1983).²¹⁸ The Fifth Circuit now looks at whether a complaint concerns a denial of a FAPE.²¹⁹ If it does not concern the denial of a FAPE, then administrative exhaustion is not necessary.²²⁰ If the complaint concerns a denial of a FAPE, the court then looks to the relief sought, and if IDEA cannot provide the relief sought, like compensatory damages, the plaintiff does not need to exhaust IDEA’s administrative requirements.²²¹ Courts appear to be applying Perez consistently and are not barring plaintiffs from seeking relief for a FAPE violation that is not provided by IDEA, even if they have not exhausted the administrative procedures pursuant to section 1415(l).²²² At the very least, Perez clarified a confusing question for district and circuit courts left previously unanswered in Fry, so there is greater clarity for families seeking relief under IDEA or other antidiscrimination statutes.

IV. BEYOND PEREZ: IMPLICATIONS AND CHALLENGES IN SPECIAL EDUCATION POLICY

This Part explores the policy implications of the Perez decision, including whether this decision may cause more harm than benefit. It examines the advantages of allowing compensatory damages for families of children with disabilities, while also weighing the significant financial burdens such damages could impose on school districts. This Part also underscores the need for more explicit and accessible IDEA guidelines, so school districts can better understand and fulfill their obligations under IDEA.

A. Implications of the Perez Decision

IDEA’s exhaustion requirement applies to suits alleging violations under IDEA and to “civil action[s] under [other] laws seeking relief that is also available under [chapter 33].”²²³ Prior to the Perez decision, plaintiffs alleging a denial of a FAPE and requesting a remedy that IDEA did not provide still had to exhaust administrative remedies under IDEA.²²⁴ However, now the Perez Court has opened up the possibilities for families of children with disabilities by allowing them to pursue money damages under different federal laws, even when they are seeking a denial of a FAPE. Following this decision, district courts and courts of appeal have issued decisions citing and applying Perez, acknowledging that exhaustion is required only if the plaintiff seeks relief that is available under IDEA.²²⁵ However, plaintiffs attempting to argue that the exhaustion requirements are no longer relevant in IDEA suits will likely still be unsuccessful, since Perez applies only to plaintiffs who bring suits under a separate federal law besides IDEA and for compensatory damages that IDEA does not provide.²²⁶ Various circuit courts have remanded matters to district courts so they can apply the Perez ruling.²²⁷

While it appears beneficial for families of children with disabilities to receive compensatory damages for inadequate educational opportunities under IDEA, the traditional remedies offered for IDEA noncompliance may be more appropriate for various reasons. For example, when a school district fails to comply with IDEA, restructuring the education system to provide adequate services for its students in the future seems more reasonable than offering a sum of money. Although there is an argument that financial penalties can motivate substantial changes from educational agencies, this approach overlooks the systemic problems within a school district and potential oversight from the state educational agency. In addition, the increased focus on litigation now that parents can bypass administrative procedures, will divert resources from addressing structural issues in school districts’ special education programs, especially given the potential for increased non-meritorious litigation to seek money damages after the Perez decision. The aggregate effect of school districts paying compensatory damages and dedicating more time toward lawsuits could detract attention from students, leaving school districts unable to enhance their special education services and at risk of providing reduced educational quality with reduced financial resources at their disposal.

The NYC DOE published data that showed that 37% of preschoolers with disabilities did not receive their mandated special education services in the 2021–2022 school year.²²⁸ More than 6,500 preschoolers who needed speech therapy did not have one session in the entire school year.²²⁹ Advocates for Children of New York, a non-profit dedicated to helping at-risk students receive a high-quality education, recommends New York City invest $50 million into the city’s upcoming budget to increase preschool special education services.²³⁰ That investment would go into hiring more teachers, increasing pay, and providing services similar to those recommended by the Special Master in LV.²³¹ With thousands of students struggling in school districts to access their services, and even more students potentially not being identified as needing services, it is concerning that, following Perez, more money might be paid out to plaintiffs, while less money goes toward special education services.

Another avenue school districts should turn toward is the Office of Special Education and Rehabilitative Services’ Office of Special Education Programs (“OSEP”), which provides discretionary grant awards.²³² In the 2023 fiscal year, OSEP provided over $110 million under IDEA to fund new programs to help educate children with disabilities.²³³ This includes hiring and training special education staff, early intervention services, and technical assistance to help states meet IDEA data collection.²³⁴ Investment in infrastructure and staffing will help school districts avoid lawsuits in the first place and avoid violating IDEA by providing inadequate special education services or failing to identify and track students with disabilities.

Another effect the Perez decision may have on educational agencies is in their assessment and implementation of IEPs and other accommodations for students with disabilities. School districts and states must account for the possibility of being sued under the ADA and other federal laws regarding equal access. Student requests should be addressed not just through IDEA’s lens but also through the lenses of the ADA and section 504. Failure to do so will leave educational agencies open to greater liability now that the remedy of money damages is accessible to students and families. School districts that are most vulnerable to increased lawsuits are clearly those with longstanding violations of students’ FAPE. For school districts that are diligent about abiding by IDEA’s requirements and providing proper FAPE to their students who require accommodations, the implications of Perez will not be as intense.

The Perez decision allows students with disabilities to bring discrimination claims under the ADA to receive compensatory damages, but plaintiffs will need to prove their discrimination claims. While this presents an enormous opportunity for students like Perez to have their day in court, plaintiffs still need to prove intentional discrimination to receive monetary claims under the ADA.²³⁵ The bar to receive monetary damages under either the ADA or section 504 remains high²³⁶ because proving intentional discrimination is difficult.²³⁷ Plaintiffs have to demonstrate that school districts were “deliberately indifferent to [a] student’s rights, exercised gross misjudgment, or acted in bad faith.”²³⁸ So, although it seems like there will be an uptick in lawsuits against educational agencies post-Perez, that does not mean that plaintiffs will prevail and actually receive monetary damages.

It is more likely that families can leverage this change into receiving larger settlement payouts from school districts, since they can threaten to escalate their claims from negotiations to court.²³⁹ Perry A. Zirkel, a special education law expert and law professor, expressed that the special education field remains “entirely unaffected” because the chances of courts awarding money damages for ADA or section 504 lawsuits “remain very strongly against the parents.”²⁴⁰ Zirkel does acknowledge, however, that after Perez, there will likely be more litigation that increases court congestion and parents’ leverage during settlement negotiations.²⁴¹ Another reason Perez strengthens families’ positions is that attorneys for school districts view litigating IDEA claims as overly cumbersome and in need of major reform.²⁴² Even when school districts prevail, they must pay substantial attorney’s fees for trial preparations and attending hearings, while special education teachers must spend time attending additional IEP meetings, interviewing with attorneys, and preparing to testify—all of which takes them away from their normal classroom responsibilities.²⁴³ Even if a parent’s complaint is frivolous, school districts sometimes agree to parental demands simply because a school district’s own attorney’s fees would likely be greater to litigate than the requested changes to IEPs or compensatory education.²⁴⁴

On the other hand, the ADA could help alleviate financial difficulties with litigation, as judges could award monetary remedies along with discretionary attorney’s fees.²⁴⁵ This potential source of funding could change lawyers’ strategies to bring ADA claims against school districts simultaneously with a due process hearing over IDEA complaints. Special education lawyers could also work on a contingency fee basis now that monetary damages are available. The decision to litigate in court is a personal one, however, and even with monetary damages, families may be reluctant to pursue that avenue.

Another critical factor to consider is the financial constraints and pressure on school districts Perez may cause. There is a strong possibility that allowing compensatory damages and having school districts pay out monetary awards to families will affect school districts’ ability to provide adequate special education services. School districts often operate under tight budgets, with funds allocated across various departments and needs. Because more parents have begun requesting services from school districts under the ADA and section 504, aggregate costs for accommodations like special transportation, testing accommodations, and publicly provided education at private schools have compounded.²⁴⁶ With budget constraints and added costs from litigation and monetary damages, fulfilling all IDEA requirements following Perez could overwhelm school budgets.²⁴⁷ This could lead to the trimming of other operational expenses or essential educational services, like school psychologists, speech pathologists, and extracurricular teachers. Diverting funds from valuable programs for children is a concern, especially because districts in lower-income areas will likely be affected at disproportionate rates. School districts primarily rely on local property taxes, state funding, and federal assistance for their budgets, so the financial ability to comply with IDEA procedures might not be feasible for school districts, even those that want to eradicate the educational inequities that students with disabilities experience. Another possibility is that school districts might be able to wield their insurance coverage effectively, depending on their coverage, to cover or defend against an ADA claim.²⁴⁸ This could reduce litigation costs and help offset higher settlement payouts to plaintiffs for school districts, but it depends on the insurance coverage plan and whether premiums might increase with more claims submitted.

B. Challenges in Policy Implementation and Compliance

School districts should not use an unclear statute as an excuse for their failure to provide adequate learning, however. The long-term harm caused to Perez by SPSD could have been mitigated if SPSD simply provided a certified sign language interpreter from the beginning. Even if IDEA standards are confusing, SPSD should have informed Perez’s family about his actual performance and not given inflated grades. There was a serious violation of Perez’s basic education for twelve years, and such egregiousness in school districts must be prevented. The lack of following basic standards of practice for deaf students in Perez is unacceptable considering there is usually guidance available from each state’s department of education.²⁴⁹ For example, SPSD could have reached out to the Michigan Department of Education Low Incidence Outreach to receive resources about serving students with hearing or visual disabilities.²⁵⁰

Even though there may be financial strain on school districts, it is still essential for school districts to strengthen their special education staff, services, and administration, not merely to avoid lawsuits and financial penalties following Perez, but to genuinely meet the needs of students with disabilities. To reduce the risk of litigation and ensure effective compliance, there is a pressing need for clear, specific guidelines detailing the standards school districts must meet under applicable statutes. That is an imperative issue that Congress should address in the near future, now that Perez has been decided. The National Council on Disability (“NCD”), an independent federal agency, was created to provide recommendations that promote disability policies, programs, and procedures that enhance the lives of individuals with disabilities.²⁵¹ Congress should rely more on the NCD’s recommendations and have the NCD host forums and publish more reports about how to improve IDEA implementation for school districts. Clarifying these compliance standards would provide much-needed direction for school districts, helping them fulfill their legal obligations to students with disabilities and reducing the likelihood of costly legal battles.

Although there is potential for Perez to compel school districts that do not currently meet IDEA requirements to reform their special education programs, the statute’s broad and not-well-defined framework presents additional challenges to effectively complying with IDEA.²⁵² The statute’s ambiguity can lead to varied interpretations of what it requires, which is especially challenging for school districts with limited resources that already struggle to determine what services need to be rendered from convoluted state and IDEA legislation. School districts also need well-trained, qualified professionals available to provide services to students with disabilities, another challenge for districts with limited budgets, as it is difficult to attract and retain talent with low salaries. Training and professional development for the latest requirements in special education law specific to a school district’s city or state is also costly. For successful IEP implementation, there needs to be continuous monitoring and evaluation of students with disabilities in their regular classrooms and during their services. Overworked special education teachers may struggle to manage observations and oversee regular IEP meetings. Limited resources can easily result in poor infrastructure and ineffective tracking of student performance and students with disabilities.

Increased advocacy for state and federal funding to address IDEA noncompliance and ease the burden of responding to an influx of complaints could ease the pressure on school districts. There should also be clearer guidelines and frameworks for districts to better understand and implement IDEA requirements. Establishing a state-level advisory body, for example, can offer guidance and assistance for the state-specific rules, in addition to IDEA procedures. Congress may also choose to address this situation through amendments to IDEA or when IDEA is reauthorized.²⁵³

Race and socioeconomic status are also important considerations for the impact of Perez on students with disabilities. Students of color are generally overrepresented in special education settings, in which they are “disproportionately labeled in ‘soft’ disability categories such as emotionally disturbed, [and] ADHD . . . .”²⁵⁴ Once labeled in those categories, those children often “receive differential access to high-quality education, are not tracked toward college, experience higher rates of suspension and expulsion, and are disproportionately represented in juvenile justice prisons.”²⁵⁵ In 1997, a reauthorization and amendment to IDEA acknowledged the problem of overrepresentation of minority students in special education classes, specifically that “[s]tudies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.”²⁵⁶ A major weakness in the due process model is that parents who have little agency in the process, like those with limited sophistication in educational advocacy and access to legal representation, struggle to advocate on behalf of their children.²⁵⁷

Additionally, even though families have the option to sue, it is expensive to hire a private attorney to sue a school district, and a family’s socioeconomic means often influences the outcome.²⁵⁸ In Endrew, Endrew’s parents paid for expert witnesses in addition to their lawyer and initially funded a private, specialized education before pursuing reimbursement.²⁵⁹ Endrew had to demonstrate that the school district prevented him from making the necessary progress toward his IEP. If Endrew’s family did not have the funds to cover the fees of the lawsuit and private schooling, he would not have been able to demonstrate his progress. Low-income parents can hardly be expected to undergo this financial burden without a guarantee, since money damages might not offset the cost of expensive litigation. Not to mention, their child might continue to fall further behind while the legal proceedings unfold. As an overwhelming percentage of children with disabilities who qualify for IDEA services are low-income, it is unclear whether more parents will go through with litigation, even with the potential for compensatory damages, simply due to a lack of legal sophistication or limited resources.²⁶⁰

C. Strategic Approaches and Systemic Changes in Special Education

In July 2023, the U.S. Department of Education released guidance to help states address and better understand IDEA requirements, focused on providing students with a FAPE.²⁶¹ “With this guidance, States will have the information necessary to exercise their general supervision responsibilities under IDEA and ensure appropriate monitoring, technical assistance . . . , and enforcement regarding local programs.”²⁶² The guidance is thorough in identifying noncompliance, while outlining the timeline for correcting noncompliance, the enforcement actions a state must take if a program does not meet IDEA requirements, and the proper way to monitor local educational agency programs.²⁶³ States bear the primary responsibility of ensuring that districts are adequately serving students under IDEA through “general supervision,” so better state oversight of local school districts is critical to ensuring that schools meet their obligations to students with disabilities.²⁶⁴

The federal guidance recommends that each state set up a robust monitoring system that “swiftly identifies and corrects noncompliance; increases accountability through the collection of timely and accurate data; and ensures the full implementation of IDEA to improve functional outcomes.”²⁶⁵ This guidance came out after OSEP identified a failure of multiple states to comply with IDEA, so OSEP is providing “accessible and actionable information” for states to exercise their duties to help protect the rights of students with disabilities.²⁶⁶ Between 2014 and 2023, on average, only seven states received the “meets requirements” determination in accordance with IDEA statute for Part B responsibilities regarding providing a FAPE.²⁶⁷ OSEP released this guidance to increase accountability by strengthening states’ general supervision programs to improve compliance. Ideally, this new guidance will take the onus off parents filing formal complaints as more states bolster their oversight mechanisms.

This guidance is another step in the right direction, especially after Perez, because it forces states to take more aggressive actions against noncompliant school districts. Notably, the guidance notes that allegations about IDEA violations can come from media reports, feedback sessions, and other areas beyond the normal formal-complaint setting.²⁶⁸ Now, a school district cannot be found in compliance with IDEA until they have completely resolved the issue that was raised, and school districts must address noncompliance as soon as possible and no later than a year after it is flagged.²⁶⁹ Monitoring ensures that school districts are following IDEA requirements, but OSEP will need to take action beyond issuing guidance for school districts to truly start remedying their IDEA noncompliance.

School districts now face the challenge of adapting to a new legal environment, in which IDEA’s due process procedures may no longer serve as an efficient and exclusive avenue to address the needs of students with disabilities, but as a potential battleground for financial claims. As more complaints and cases are heard in district courts, the Perez decision will likely be a reckoning for school districts with a history of neglecting students with disabilities. This will hopefully provide enough financial incentive for those school districts and state education departments to shore up their management and oversight of special education services. Like the NYC DOE’s new plan, other educational agencies should consider evaluating areas for improvement in their own special education services to avoid litigation and provide an inclusive classroom environment for students with disabilities that IDEA was created to address. Educational agencies are also likely to place greater care in crafting settlements to comprehensively address all issues that families are alleging, so there is greater potential for children with disabilities to access a broader range of remedies and legal protections. There is great potential for the Perez decision to initiate comprehensive and thoughtful change for the treatment and schooling of students with disabilities in classrooms, as educational agencies elect to avoid costly litigation and expensive compensatory damages in favor of addressing systemic issues within their schools.

CONCLUSION

As Justice Gorsuch stated, the Perez decision “holds consequences not just for Mr. Perez but for a great many children with disabilities and their parents.”²⁷⁰ Perez’s heartbreaking story about attending SPSD for over a decade with unqualified interpreters, leaving him unable to understand material or even learn sign language properly, is unfortunately just one of the many stories of students with disabilities who have been failed by their school systems. The Court’s unanimous decision removes unnecessary burdens and clarifies the requirements and remedies that are available for children with disabilities and their families when they pursue litigation against school districts.²⁷¹ The Court explained that a student with a disability need not first exhaust the administrative requirements of IDEA before filing a lawsuit seeking compensatory damages under the ADA or other federal antidiscrimination laws, since IDEA cannot provide those remedies. Though the lasting effects of this decision are yet to be seen, there are practical implications for school districts effective immediately, including a greater urgency to be responsive to parent concerns and student needs, abide by IDEA procedures, and implement student IEPs effectively. At the very least, the special education world can feel cautiously optimistic that Perez will help more students be made whole by the legal system and by educators who ensure that students with disabilities’ unique needs are met. After all, there were approximately 7.6 million children receiving services under IDEA in the 2022–2023 school year, so Perez has far-reaching implications.²⁷²

While this decision empowers families by holding school districts financially accountable, school districts’ ability to provide adequate special education services may be hindered if schools spend more time battling litigation and paying money damages. Nonetheless, this unanimous decision preserves IDEA’s clear purpose of allowing students with disabilities to receive a FAPE as soon as possible and to preserve their legal rights under other federal statutes.²⁷³ Perez is momentous because, as Justice Kagan acknowledged, oftentimes, it is “the parents [of students with disabilities] that have the greater incentive to get the education fixed for their child[ren],” and this decision allows students with disabilities to receive everything they are entitled to under IDEA and also receive compensatory damages under the ADA.²⁷⁴ The decision underscores the need for school districts to address structural problems that prevent students with disabilities from access to their rightful educational opportunities. As school districts grapple with Perez, we will surely see whether the Court’s holding delivers financial redress to children with disabilities who are discriminated against, suffer harm from, and have claims under both IDEA and the ADA, and how the future landscape of special education is transformed as a result.

98 S. Cal. L. Rev. 473

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Isabelle Yuan*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. History 2020, Wellesley College. Many thanks to the editors of the Southern California Law Review for their thoughtful feedback. Thank you also to Maia Lee and William Wang for their invaluable guidance and support. All mistakes are my own.

Getting a Bad “Wrap”: An Analysis of Online Contract Cases in California After Step-Saver and ProCD

April 2025April 2025Sophie Lee*

Consumers routinely enter contracts when engaging in online commerce. Such “contracts of adhesion” are created by sellers and provide no opportunity to negotiate. By surveying California state and federal court cases, this Note explores how California courts evaluate notice. Courts recognize four types of online contracts: clickwrap, browsewrap, scrollwrap, and sign-in-wrap. This Note also draws on the seminal cases Step-Saver Data Systems v. Wyse and ProCD, Inc. v. Zeidenberg to discuss and compare the standards of notice used by courts. Overall, a uniform standard of notice has not yet emerged in California, and Step-Saver and ProCD remain relevant as courts primarily rely on fact-specific notice analysis. The utility of the four types of “wrap” categories may be diminishing as the online landscape evolves and changes.

INTRODUCTION

Imagine that you are purchasing something online, as you have likely done in the past. You enter the seller’s website and pick out the product you want to buy—say, a pair of socks—then start the payment process by entering your personal information. As you are about to click “Complete Purchase,” you see a notice pop up on the screen: “By completing your purchase, you agree to our Terms and Conditions.” You pause for a moment, wondering whether you should review the terms, but that would involve opening another webpage and parsing through pages of dense legal language. You have purchased socks online before—what is the worst that can happen? Instead, you agree and complete your purchase. When you think back to the transaction, perhaps you will remember seeing the pop-up notice, or perhaps you will not. The result will likely be the same. You have assented to the seller’s terms and entered a contract.

It is a common law principle that buyers and sellers should be held accountable for the contracts that they create, but one-sided form contracts are sometimes regarded differently. Courts have grappled with the issue of assent to sales contracts since before the Internet became the commercial engine that it is today. “Box-top” or “shrinkwrap” contracts list the terms of the agreement on the outside of a product’s packaging. By opening the packaging, a buyer manifests their intent to be bound by the terms. In 1991, the Third Circuit Court of Appeals decided a case involving a box-top license on a software product.¹ The court ruled for the software buyer, deeming the box-top license a proposal for new terms of agreement rather than a binding contract.² In contrast, when a similar case made its way to the Seventh Circuit Court of Appeals in 1996, the court ruled in favor of a software seller.³ The seller’s shrinkwrap agreement was binding because opening a package was a valid way for a buyer to accept the seller’s offer.⁴ Step-Saver Data Systems v. Wyse (“Step-Saver”) and ProCD, Inc. v. Zeidenberg (“ProCD”), respectively, came to represent two distinct views on box-top and shrinkwrap contracts. Simply put, Step-Saver placed a greater burden on sellers by giving buyers the benefit of the doubt as to their awareness of new terms. ProCD, however, placed a greater burden on buyers to apprise themselves of a seller’s terms. Though nearly three decades old, Step-Saver and ProCD still form the foundation of how courts approach disputes over online contracts.

Today, the average consumer would struggle to avoid such “contracts of adhesion” (also called form or “boilerplate” contracts), which offer no opportunity for negotiation on the part of the buyer. These contracts are efficient for sellers; modern commerce would not be nearly as fast or profitable if it were not for these contracts. But the ubiquity of online contracting and the rapid evolution of sellers’ websites raises questions about contract law and consumer protection. How should courts balance enabling transaction efficiency while ensuring buyers are aware of sellers’ terms?

California generally categorizes online contracts by modes of assent and into four types: “clickwraps,” “browsewraps,” “scrollwraps,” and “sign-in-wraps.”⁵ Clickwrap agreements require an affirmative act of assent to become binding (e.g., clicking a button that reads “I have read and accepted the Terms and Conditions”).⁶ In contrast, browsewrap agreements do not require an affirmative act as to specific terms of the contract; “an internet user accepts a website’s terms of use merely by browsing the site” ⁷ (e.g., a text banner that reads, “Use of this website constitutes agreement to the Terms and Conditions”). Scrollwrap agreements require a user to physically scroll to the bottom of a page containing the terms before proceeding to use a website.⁸ Finally, sign-in-wrap agreements require a user to sign up for an Internet service or product, the process of which indicates assent to the seller’s terms.⁹ These four types of “wrap” create contracts of adhesion and, as their names suggest, are regarded by courts as the digital successors of shrinkwrap. Thus, when faced with a clickwrap, browsewrap, scrollwrap, or sign-in-wrap agreement, buyers are offered no opportunity to negotiate and can only “take it or leave it.”¹⁰

This Note presents a case law survey of California state and federal district court cases between the years 2014 and 2024. It discusses the validity of the four commonly recognized types of online agreements and analyzes how courts’ approaches differ depending on the type of “wrap.” Part I provides background on contract common law, Step-Saver and ProCD, and significant U.S. Court of Appeals decisions. Part II details the case law survey: Section II.A describes state court cases and Section II.B describes federal district court cases. Section II.C summarizes the results of the survey and considers its implications for the way courts categorize online agreements and for the legacy of Step-Saver and ProCD.

This Note concludes that state and federal components of the case law survey largely reached the same outcomes with similar reasoning. Courts used multiple standards to determine whether a buyer received adequate or sufficient notice of a seller’s terms, including both a “reasonable notice” and a “reasonably prudent” user standard that can be traced back to ProCD and Step-Saver. This survey shows that a predominant standard for notice has not yet emerged in California (although recent approaches set out by the Ninth Circuit may promote greater consistency going forward). Overall, courts generally remained deferential to sellers and their offers. Fact-specific inquiries into whether a buyer was given reasonable notice were common among the cases surveyed. Thus, meaningful categories of “wrap” types may be gradually losing utility. Finally, this Note briefly considers whether Step-Saver and ProCD are still relevant to current and prevalent forms of online contracts and explains that these cases establish and solidify California’s most prevalent notice standards.

I. BACKGROUND

It is a basic principle of common law that the formation of a contract requires an “offer” and “acceptance.”¹¹ Step-Saver Data Systems v. Wyse and ProCD, Inc. v. Zeidenberg are seminal cases for their applications of common law principles within the context of box-top and shrinkwrap sales agreements. The same fundamental issues and principles remain relevant among newer types of agreements for selling goods and services on the Internet, such as clickwrap and browsewrap agreements. Today, courts often defer to sellers’ proposed modes of assent while using a fact-based “adequate notice” standard to evaluate the validity of a “wrap” agreement.¹²

A. Contract Common Law: Offer and Acceptance

Because the “elemental principles of contract formation apply with equal force to contracts formed online,”¹³ the same principles of contract common law are relevant when considering the validity of an online agreement.¹⁴ For a contract to be enforceable, common law requires that the parties’ bargaining process must meet two basic requirements: (1) both parties must assent to be bound, and (2) the agreement must be “definite” enough to be enforceable.¹⁵ The first requirement incorporates the presumption that one must consent to be bound, while the second requirement emphasizes the importance of receiving what one contracted for.¹⁶ The process of assenting can be broken down into two steps: “offer” and “acceptance.”¹⁷ An offer is a “promise” conditional on an action by the offeree.¹⁸ When an offeror makes an offer to the offeree, the offeree can accept, conveying their assent to be bound by the offeror’s terms. Offers can take many forms, and the offeror has the ability and authority to set the terms of their offer and to specify a mode of acceptance.¹⁹ Disputes can arise over whether the offeree had reason to believe that an offer was intended by the offeror to constitute an offer.²⁰ As discussed further below, in the realm of online contracts, consumers are often unaware that completing a purchase or signing into an account indicates assent to the terms of a seller’s agreement or even that a contract is being formed at all.

Parties can manifest assent in writing, through spoken word, or through conduct.²¹ Doctrine on assent is split between a subjective theory of assent, which focuses on the actual intent of the parties to be bound through a “meeting of the minds,” and an objective theory of assent, which focuses on the “external . . . appearance of the parties’ intentions as manifested by their actions.”²² To avoid issues related to the negotiation process, many sellers use form contracts that set out standard, nonnegotiable terms for transactions.²³ An offeree has only two options: to proceed with the transaction and accept the terms, or to decline.²⁴ These contracts are highly efficient for offerors but can come with drawbacks for offerees. For example, under common law, it does not matter if an offeree assents carelessly or fails to consider the legal consequences of a contract. Failure to read a contract is not a defense to breach of contract.²⁵

B. From Shrinkwrap to Clickwrap

The court in Step-Saver invalidated a shrinkwrap contract and deemed it a modification of an existing contract to which the buyer did not affirmatively assent. In contrast, the court in ProCD held that a shrinkwrap license was valid because the buyer was provided notice of the terms. Courts generally examine whether a seller provided adequate notice of its terms because online modes of assent to form contracts and website checkout flows greatly vary. In California, online contracts are sorted into four categories: clickwrap, browsewrap, scrollwrap, and sign-in-wrap. Each category has its own unique implications.

1. Step-Saver and ProCD

The box-top license printed on each package in Step-Saver Data Systems v. Wyse was a form contract that stated, “Opening this package indicates your acceptance of these terms and conditions. If you do not agree with them, you should promptly return the package unopened to the person from whom you purchased it . . . .”²⁶ Step-Saver, the buyer, argued that the box-top license materially altered a contract that was previously negotiated over the phone with The Software Link, Inc. (“TSL”), the seller, and that it was not binding under Uniform Commercial Code (“UCC”) Section 2-207.²⁷ On the other hand, TSL argued that a contract came into existence when Step-Saver received the terms of the license on the package and still proceeded to open the box; thus, phone conversations were merely counteroffers and negotiations.²⁸ The court ruled for Step-Saver, deciding that the box-top license should be seen as “one more form in a battle of forms”²⁹ and that the terms were not binding because they materially altered the parties’ agreement.³⁰ Judge John Minor Wisdom emphasized the fact that based on the parties’ previous negotiations, Step-Saver would not have expected to be bound by the box-top license.³¹ In response to TSL’s argument that its offer to issue a refund protected Step-Saver enough to validate the box-top license, Judge Wisdom wrote, “[w]e see no basis in the terms of the box-top license for inferring that a reasonable offeror would understand from the refund offer that certain terms of the box-top license, such as the warranty disclaimers, were essential to TSL.”³² In his holding, he wrote that “Step-Saver [could] reasonably believe that, while TSL desires certain terms, it has agreed to do business on other terms.”³³ Thus, this decision implies that a contract should not be binding unless a buyer affirmatively assents to a form contract and the parties reasonably believe that it is binding.

Judge Wisdom also rejected the seller’s arguments that ruling in favor of Step-Saver would adversely affect the industry. He wrote:

We are not persuaded that requiring software companies to stand behind representations concerning their products will inevitably destroy the software industry. We emphasize, however, that we are following the well-established distinction between conspicuous disclaimers made available before the contract is formed and disclaimers made available only after the contract is formed.³⁴

The court also speculated that sellers who justify the use of a box-top license with an optional refund provision might be “relying on the purchaser’s investment in time and energy in reaching this point in the transaction to prevent the purchaser from returning the item,” suggesting that a refund provision is generally not an adequate safeguard for consumers who assent to a license by opening a package.³⁵ Step-Saver represents a rare victory for consumers subjected to form contracts because it held the parties accountable to only the terms that were explicitly negotiated and agreed on.

In ProCD, Inc. v. Zeidenberg, a buyer violated a software license that restricted use of the software to “noncommercial” activity only.³⁶ The buyer, Matthew Zeidenberg, claimed that the shrinkwrap license should not be valid because it did not appear on the outside of the packaging and the terms could only be viewed by opening and using the software.³⁷ However, Judge Frank Easterbrook treated the license like an ordinary contract for the sale of goods, concluding that Zeidenberg could validly assent by doing as ProCD had requested: opening and using the software.³⁸ Judge Easterbrook stated that consumers can generally assent through any means held out as a form of acceptance by the seller, with exceptions for a seller’s bad faith.³⁹ Judge Easterbrook used UCC § 2-204 to support the common law principle that a seller is the “master of the offer” who can invite and limit means of acceptance;⁴⁰ “[a] buyer may accept by performing the acts the vendor proposes to treat as acceptance.”⁴¹ Contracts can be formed in many ways and “ProCD proposed such a different way, and without protest Zeidenberg agreed.”⁴² Further, ProCD was reasonable in its proposed form of acceptance because even after the package was opened “the software splashed the license on the screen and would not let [the buyer] proceed without indicating acceptance.”⁴³ An important part of Judge Easterbrook’s decision was that the software incorporated a pop-up box containing the agreement terms, creating reasonable notice of the terms for the buyer.⁴⁴ Additionally, contrary to Judge Wisdom’s reasoning in Step-Saver, Judge Easterbrook determined that an option to return the product for a full refund added to the validity of the buyer’s assent (though interestingly, in a 2004 interview of Matthew Zeidenberg and attorney David Austin, Austin claimed that the deposition of ProCD President James Bryant had revealed that ProCD did not have an actual return policy).⁴⁵ Sellers and businesses embraced Judge Easterbrook’s decision and shrinkwrap licenses became “generally accepted” “[w]ithin six years” of the ProCD case.⁴⁶ Eric Posner wrote that Judge Easterbrook “reformulate[d] [the] offer-acceptance doctrine so as to permit enforcement of ‘terms later’ contracts, an important new business tool.”⁴⁷

In the wake of Step-Saver, ProCD came to represent a validation of the use of form contracts to conduct business. Judge Easterbrook stated that “[t]ransactions in which the exchange of money precedes the communication of detailed terms are common” and used the purchase of insurance as an example.⁴⁸ In a subsequent case, Hill v. Gateway 2000, Inc., Judge Easterbrook clarified that ProCD was not just limited to software and was about “the law of contract” in general.⁴⁹ Furthermore, “[p]ractical considerations support[ed] allowing vendors to enclose the full legal terms with their products.”⁵⁰ For example, cashiers could not “be expected to read legal documents to customers before ringing up sales.”⁵¹ Judge Easterbrook’s words feel especially relevant today given the fast-paced nature of commerce. Notably, and perhaps regrettably, ProCD did not set real standards for what sellers should actually include on packaging in order to create notice of agreement terms. The court may have declined to create bright-line requirements for notice out of fear that restrictions would interfere with a seller’s packaging.⁵² Nevertheless, since the 1990s, when Step-Saver and ProCD created a circuit split, both decisions have been highly influential in the development of online contract law.

2. Online Contracts Today

Like shrinkwrap contracts, online form contracts for the sale of goods or services require a manifestation of assent for an offeree to be bound by a seller’s nonnegotiable set of terms.⁵³ Clickwrap, browsewrap, scrollwrap, and sign-in-wrap agreements govern millions of transactions, drawing on the same common law principles as the shrinkwrap contracts in Step-Saver and ProCD. “While Internet commerce has exposed courts to many new situations, it has not fundamentally changed the requirement that ‘[m]utual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract.’ ”⁵⁴ Shrinkwrap agreements find a modern analogue in browsewrap agreements: neither shrinkwrap nor browsewrap requires an affirmative act of assent to specific terms to be binding. Like the buyer in Step-Saver who needed only to continue opening the package to accept the seller’s terms, a buyer subject to a browsewrap agreement need only to continue interacting with a website to accept a set of terms. There is no clear instruction to, for example, click a checkbox before making a purchase. Judge Wisdom might be skeptical of the validity of browsewrap because it might not be reasonable for a buyer to expect to be bound in such a way. Indeed, California courts are generally more inclined to rule for the validity of a clickwrap or a scrollwrap contract than a browsewrap contract because clickwrap and scrollwrap require an affirmative act, evincing that the buyer was more likely to be put on notice instead of passively clicking.⁵⁵

Because wrap agreements are contracts of adhesion that offer no opportunity for a buyer to negotiate, a buyer’s only choices are to assent and complete the transaction or to walk away. Karl Llewellyn theorized in The Common Law Tradition that “there is no assent at all” to the specific terms within a boilerplate agreement; instead, there is “a blanket assent” to all terms of the agreement.⁵⁶ In other words, buyers either assent to all the terms, or they do not. Thus, buyers accepting clickwrap contracts should not be construed as assenting to one provision or another, but rather as assenting to the seller’s entire agreement.

The “take-it-or-leave-it” nature of these contracts has potential to leave buyers stuck with terms they do not like. The court in Step-Saver considered the imbalanced nature of contracts of adhesion, reasoning that the seller may have been relying on the fact that the buyer had already invested time and energy into the transaction.⁵⁷ Some legal scholars, including Cheryl B. Preston, are skeptical about the ability of online contracts to be anything but one sided.⁵⁸ Buyers often fail to understand the terms to which they are assenting. Though it is a common law principle that whether a buyer has actually read a form contract is not dispositive of whether they will be bound, buyers who attempt to read the terms may find them inaccessible and full of legalese. A 2019 study by two law professors analyzed the sign-in-wrap contracts of 500 popular U.S. websites and found that 99% of them could be categorized as “unreadable.”⁵⁹

On the other hand, Judge Easterbrook might argue that form contracts do not leave buyers without options because the nature of a competitive market forces sellers to create favorable terms for buyers.⁶⁰ He wrote in his opinion for ProCD that “[c]ompetition among vendors, not judicial revision of a package’s contents, is how consumers are protected in a market economy.”⁶¹ Additionally, efficiency and convenience are important to online consumers, who are generally unwilling to complicate a transaction. Eric Posner uses the term “cognitive overload” to describe how buyers may be dissuaded if too much information is received up front.⁶² “If the seller conveys too much information, she will drive away buyers. If the seller conveys too little information, she will mislead buyers and possibly drive them away as well.”⁶³ Even minor setbacks in a checkout process can mean the difference between completing a purchase or not. Forbes reported that around twenty-five percent of online shoppers choose not to go through with a purchase if the website forces them to create a new account.⁶⁴ For certain customers, the risk of potential legal complications down the road is a fair substitute for simple and efficient online processes.⁶⁵

The validity of online form contracts often turns on whether the mode of acceptance created by seller-offerors adequately notifies buyers of the formation of an agreement on the seller’s terms. The theory behind notice is that it can level the playing field within the realm of online contracting. E. Allan Farnsworth notes that the “lack of equality between a person who is meticulous or who chances to have knowledge and a person who is blissfully unknowing is a patent point for dissatisfaction.”⁶⁶ Because there is always an inherent potential for unfairness when there is no real negotiation of terms, there should be an attempt to create awareness for the non-drafting party. This is a defining characteristic of clickwrap and browsewrap contracts, especially because the ubiquity of ecommerce means that they are accessible to the expert as well as the layperson. In Step-Saver, Judge Wisdom considered whether a “reasonable” buyer could expect to be notified of the seller’s priorities.⁶⁷ In ProCD, the conspicuousness of the seller’s pop-up notice box was an important factor in creating objective notice for the buyer.⁶⁸

It is challenging to synthesize a common standard for notice because clickwrap, browsewrap, scrollwrap, and sign-in-wrap can be nebulous categories. For example, courts frequently characterize contracts containing elements of both browsewrap and clickwrap as “hybridwrap.”⁶⁹ One example of hybridwrap is acknowledged by courts when “the button required to perform the action manifesting assent (e.g., signing up for an account or executing a purchase) is located directly next to a hyperlink to the terms and a notice informing the user that, by clicking the button, the user is agreeing to those terms.”⁷⁰ Hybridwrap may exist when users are reasonably notified of “the existence of the website’s terms of use” and are often guided to click a button to signify agreement.⁷¹ The case law survey in Part II shows that courts often struggle to categorize wrap agreements, and in lacking categorical rules to guide them, courts must look for adequate notice of the seller’s terms.

Additionally, as will be discussed at length in Section II.C.1, adequate notice has advantages and disadvantages as a legal standard. One advantage is that it allows room for evolution in response to the rapidly evolving digital world. Ecommerce is still growing, especially given the recent COVID-19 pandemic, during which many businesses and consumers relied on online orders. The global ecommerce market is expected to total $6.3 billion in 2024 and $7.9 trillion by 2027.⁷² Additionally, buyers today make online purchases faster and more casually than they have in the past. Consumers who make habitual and trivial purchases online may not be privy to a seller’s terms when, from the consumer’s perspective, the transaction is as inconsequential as a “pair of socks.”⁷³ Thus, not only are the means of business evolving, but the role and mindset of the consumer are changing as well. Courts have applied similar notice standards for the past three decades, but these standards can sometimes be a moving target.

C. Second and Ninth Circuit Decisions: Nguyen, Berman, and Specht

Major circuit court decisions from the past two decades show that courts often defer to sellers’ proposed modes of assent to their agreements while using a fact-based adequate notice standard to evaluate the validity of a wrap agreement.

In Nguyen v. Barnes & Noble Inc., a buyer unwittingly assented to Barnes & Noble’s terms of use through a browsewrap agreement while shopping online.⁷⁴ The disputed arbitration term could not be viewed unless the buyer clicked on a hyperlink that was placed at the bottom of the webpage.⁷⁵ Additionally, Barnes & Noble did not require any affirmative act of assent as part of the transaction.⁷⁶ The court held for the buyer and denied Barnes and Noble’s motion to compel arbitration.⁷⁷ The Nguyen court characterized online contracts as primarily coming in “two flavors”: “clickwrap” and “browsewrap.”⁷⁸ Browsewrap was defined as an agreement where “a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen.”⁷⁹ Because browsewrap, unlike clickwrap, lacks an act of affirmative assent, the standard in Nguyen turned on “whether the user ha[d] actual or constructive knowledge.”⁸⁰ Thus, the buyer was not bound by the terms of use because he was not adequately put on notice by the design of the website and the inconspicuous and “buried” hyperlink to the terms and conditions.⁸¹ A rare bright-line rule for browsewrap emerged from this case:

[W]here a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.⁸²

Few other notice-related bright-line rules have been articulated, but Nguyen represented a turning point in the world of online contracts, discouraging sellers from implementing browsewrap agreements without a buyer’s affirmative act of assent.

By 2021, scrollwrap and sign-in-wrap found their way into the lexicon of the courts, and California came to recognize four categories instead of the “two flavors” set forth in Nguyen.⁸³ The Ninth Circuit affirmed Nguyen in Berman v. Freedom Financial Network, in which a company’s terms and conditions were not conspicuous or noticeable on the website.⁸⁴ The terms were hyperlinked, but displayed in the same font and color as an adjacent sentence, not in the typical blue color a reasonable buyer would expect of a hyperlink.⁸⁵ The court held that the company did not call sufficient attention to the fact that clicking “continue” would indicate assent to the company’s terms, using a “reasonably conspicuous notice” standard to decide that the contract should be unenforceable.⁸⁶ Its fact-specific inquiry also assessed whether a “reasonably prudent Internet user” would be given notice given the webpage’s fonts, font sizes, colors, overall design, and readability of the webpage.⁸⁷ The court found that such a user would not be put on notice given that the hyperlink was not conspicuous in color or design.⁸⁸ This standard is consistent with Step-Saver, which looked to the reasonable beliefs of the parties in assessing notice.⁸⁹ Lastly, the Berman court provided a two-part framework for courts’ inquiries into notice:

Unless the website operator can show that a consumer has actual knowledge of the agreement, an enforceable contract will be found based on an inquiry notice theory only if: (1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.⁹⁰

Berman is a recent case, and lower courts have generally been slow to adopt this exact two-part framework. As will be discussed in Part II, courts take—and have taken—a variety of approaches to conduct similar notice inquiries. ⁹¹

In Oberstein v. Live Nation Entertainment, Inc., the Ninth Circuit considered another factor when assessing notice: the expectation of a continued relationship with a seller.⁹² A ticketing company’s website presented users with buttons that read “you agree to our Terms of Use” at three independent stages: creating an account, signing into an account, and completing a purchase.⁹³ The court considered both “the context of the transaction” and the “placement of the notice.”⁹⁴ Because the context of the transaction required full registration and implied somewhat of a “continuing relationship,” users should have been notified of the terms of that relationship.⁹⁵ Thus, the court ruled for the ticketing company and added a new dimension to the adequate notice standard.⁹⁶

Keebaugh v. Warner Bros. Entertainment Inc., a 2024 Ninth Circuit case, further clarified the standard set forth in Berman.⁹⁷ On a mobile entertainment app, users were presented with a large button that read “Play,” and small text below the button that read “By tapping ‘Play,’ I agree to the Terms of Service.”⁹⁸ Using both the Berman two-part inquiry and the “context” standard from Oberstein, the court categorized the agreement as sign-in-wrap and ruled for the entertainment company.⁹⁹ The court defined the “conspicuous” notice part of the Berman standard as “displayed in a font size and format such that the court can fairly assume that a reasonably prudent Internet user would have seen it.”¹⁰⁰ Additionally, “[s]imply underscoring words or phrases . . . will often be insufficient to alert a reasonably prudent user that a clickable link exists.”¹⁰¹ In terms of a continuing relationship between company and user, the court emphasized that the context of downloading a mobile app carries an implication of long-term use.¹⁰² Again, as demonstrated in Part II, courts in California have yet to latch onto the Berman standard. Courts have been using—and continue to use—similar, but not identical, standards.

New York law and California law often “dictate the same outcome” and draw from the same precedent.¹⁰³ The jurisdictions frequently exchange standards and reference the same lines of reasoning for cases considering the validity of an online contract. Further, other U.S. Courts of Appeal frequently apply California contract law as well.¹⁰⁴ In the 2002 Second Circuit case Specht v. Netscape Communications Corp., then-Judge Sotomayor applied California law in denying a software company’s motion to compel arbitration after a buyer was unaware of the terms of the contract.¹⁰⁵ In circumstances where consumers are “urged to download free software,” “clicking on a download button does not communicate assent to contractual terms” without adequate notice.¹⁰⁶ Judge Sotomayor used a “reasonably prudent offeree of downloadable software” standard in determining whether it would be reasonable to conclude that the buyer should have been aware of the terms.¹⁰⁷ Like Judge Wisdom in Step-Saver and the Ninth Circuit in Berman, Judge Sotomayor examined the belief of the parties in determining that a “reasonably prudent offeree in plaintiffs’ position would necessarily have known or learned of the existence of the SmartDownload license agreement.”¹⁰⁸ She held that “a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.”¹⁰⁹ Finally, Judge Sotomayor also distinguished the facts of Specht from the facts of ProCD, in which the buyer “was confronted with conspicuous, mandatory license terms every time he ran the software on his computer.”¹¹⁰ However, she also noted that cases such as ProCD “do not help defendants” and emphasized the necessity of reasonably conspicuous notice “if electronic bargaining is to have integrity and credibility” going forward.¹¹¹

In 2017, the Second Circuit decided Meyer v. Uber Technologies, Inc., an influential case among a slew of recent rideshare-related contract cases. The court held that a consumer unambiguously manifested assent to Uber’s terms of service because a reasonable user would have seen and known that clicking a registration button would constitute assent to terms accessible via hyperlink.¹¹² Even though the sign-in-wrap agreement served two functions—“creation of a user account and assent to the Terms of Service”—the consumer’s assent was still valid given the “physical proximity of the notice to the register button and the placement of the language in the registration flow.”¹¹³ Interestingly, the court seemed to prioritize the creation of notice over the type of wrap in dispute. The court stated that “[c]lassification of web-based contracts alone . . . does not resolve the notice inquiry.”¹¹⁴ In this case, the user was bound because they were “expressly warned . . . that by creating an Uber account, the user was agreeing to be bound by the linked terms.”¹¹⁵

In general, Nguyen, Berman, Oberstein, Keebaugh, Specht, and Meyer show that courts must consider notice standards within the reality of the Internet and recognize the necessity of electronic form contracts to conduct ecommerce. Finding a balance between a consistent standard for sufficient notice and offeror efficiency, however, has proven to be challenging. Courts have issued very few bright-line requirements for offerors and generally take an “ex ante approach by emphasizing what the drafter should have done to make the terms prominent and noticeable.”¹¹⁶ This approach might be criticized as reactive and too deferential to sellers, who are in a better position to create awareness of their terms because they can exercise more control over a buyer’s experience by designing the website.

Indeed, the common law principle that the offeror remains the “master” of the offer holds true in the realm of online form contracts. However, cases like Berman and Specht also highlight more buyer-centric common law principles, accounting for the reasonable expectations of the average “prudent” buyer. A dominant standard has not yet been established by the Ninth Circuit, and California law encompasses both the “reasonable notice” and the “reasonably prudent” user standard. Thus, this Note’s case law survey attempts to analyze and identify how California courts utilize these flexible standards of notice to analyze buyers’ acceptance of sellers’ offers.

II. CASE LAW SURVEY

This survey examines state and federal district court cases to paint a picture of California courts’ treatment of wrap agreements. Section II.A focuses on California state courts and discusses notable cases within the context of Step-Saver, ProCD, Nguyen, and Specht. It concludes that clickwrap agreements remain presumably enforceable, browsewrap agreements require a more fact-specific inquiry, and sign-in-wrap agreements are not yet fully distinguishable from browsewrap agreements. Section II.B focuses on the ways in which cases in federal district courts in California are consistent or inconsistent with cases in state courts. Section II.B concludes that district court decisions are largely in line with state court decisions, factoring in scrollwrap cases as presumptively enforceable. Finally, Section II.C further analyzes and summarizes differences between the forums and comments on the lasting influence of Step-Saver and ProCD. Overall, this case law survey shows that standards of notice from both Step-Saver and ProCD have been incorporated into California law, but a predominant standard for assessing adequate notice for wrap contracts has yet to take hold.

Twenty California state court cases and twenty U.S. District Court cases involving online form contracts for the sale of goods or services were chosen for this survey as a representative sample. This Note provides a brief quantitative analysis, then a substantive qualitative analysis of cases in each group. There were two main reasons for conducting a more comprehensive qualitative analysis: (1) the reasoning in the following cases was often fact specific, especially when the agreements in question defied easy categorization; and (2) although the chosen cases are representative of recent decisions, many similar cases exist beyond what is depicted here. It should be noted that some cases surveyed involved multiple types of wrap, or contained agreements that could have plausibly been categorized in more than one way. Importantly, the cases in this survey were sorted by the courts’ own labels and characterizations for the wrap agreements in dispute.

Additionally, as discussed in Section I.B.2, the clauses most frequently in dispute—arbitration clauses, choice-of-forum clauses, and class-action waiver clauses—are small parts of long agreements.¹¹⁷ As per Llewellyn’s theory of “blanket assent” to terms in a boilerplate contract,¹¹⁸ courts consider the validity of entire contracts rather than specific provisions. Thus, the cases in this survey generally either enforced the validity of an agreement or found the agreement to be invalid as a whole.

Figure 1. Outcomes of Cases Included in Case Law Survey

A. California State Courts

Cases were chosen based on the following criteria: (1) cases arose out of California state courts; (2) cases were decided between the years 2014 and 2024 (inclusive); (3) the relationship between the parties to the case was that of a buyer and seller (or lessee/lessor), or the agreement in dispute arose out of a transaction for goods or services; and (4) the court addressed the validity of a clickwrap, browsewrap, scrollwrap, or sign-in-wrap contract. Interestingly, there have not yet been any cases concerning the validity of a pure scrollwrap agreement in this jurisdiction. This Note will not include substantial speculation as to how state courts might treat scrollwrap agreements, but the latter half of this case law survey involving federal cases will discuss how California state law is applied to scrollwrap. Generally, scrollwrap agreements appear to be more or less unanimously enforceable.¹¹⁹

Most of the selected cases involved disputes regarding forum-selection clauses and arbitration clauses, however, the nature of the disputed terms was of secondary importance because courts only consider whether the entire agreement is valid. It should be noted that the Federal Arbitration Act (“FAA”) generally treats the enforcement of arbitration agreements favorably.¹²⁰ However, the FAA also limits the role of the courts to two related inquiries: (1) “whether a valid arbitration agreement exists,” and (2) “whether the agreement encompasses the disputes at issue.”¹²¹ Online contract cases often turn on the first issue, as the second issue is typically less disputed by the parties. Thus, the court’s inquiry was often whether a valid contract—and therefore, a valid arbitration agreement—existed.¹²²

Of the twenty cases examined, nine cases involved clickwrap agreements, eight cases involved browsewrap, and four cases involved sign-in-wrap (one case involved both a browsewrap agreement and a sign-in-wrap agreement).¹²³ Seven of nine clickwrap cases held for the seller, three of eight browsewrap cases held for the seller, and two of four sign-in-wrap cases held for the seller.¹²⁴ The numeric breakdown of the case outcomes was secondary to the reasoning of the courts. In general, the courts found clickwrap contracts largely enforceable, barring unique circumstances with extraneous issues. Browsewrap agreements were examined more closely, and the courts were more inclined to prioritize fact-based notice inquiries in such cases, echoing Berman and Specht. Cases involving sign-in-wrap were less unified by a single standard, and Sellers v. JustAnswer LLC highlighted some of the inconsistencies and issues with the various standards set forth by state and federal courts. Overall, although the reasoning of the courts closely followed Ninth and Second Circuit precedent, the standards for notice were inconsistently applied, even within wrap categories.

1. Clickwrap Agreements

As the Ninth and Second Circuits have noted, courts often presume clickwrap agreements to be enforceable because buyers must affirmatively manifest assent to the terms in question by physically clicking to proceed with an online transaction.¹²⁵ This is consistent with the Berman standard, but of the cases decided after Berman, none used the two-part framework. Overall, the courts generally presumed the validity of clickwrap and occasionally looked for adequate notice.

The cases surveyed revealed that a notice inquiry was secondary to the presumption of enforceability of pure clickwrap agreements. For example, it typically did not matter what was written on the digital button or box that users were directed to click; the action of clicking was enough of an affirmative act to bind the user. In B.D. v. Blizzard Entertainment, Inc., a buyer clicked a button marked “Continue” and was bound by a seller’s License Agreement.¹²⁶ The button was accompanied by a pop-up notice that notified buyers that continuing with the transaction would manifest assent.¹²⁷ In Pierre v. Dexcom Inc. and Jackson v. Vines, the court declared that clickwrap agreements are “generally considered enforceable.”¹²⁸

Courts were less likely to presume that clickwrap agreements were enforceable if they found elements of other wrap agreements present in a seller’s website flow. Two clickwrap cases held for buyers. The first case is Doe v. Massage Envy Franchising, LLC, in which a buyer did not assent to a seller’s terms of service on an in-store electronic tablet because the font color of the statement of notice was not conspicuous, and the terms were hyperlinked, not plainly visible.¹²⁹ The seller motioned to compel arbitration after the buyer alleged that she was sexually assaulted at the seller’s franchise location.¹³⁰ The court emphasized that the buyer was under pressure to complete the forms quickly by seller’s staff, which factored into the assessment of whether the buyer was actually aware of the terms.¹³¹

The second case in which a buyer prevailed is Herzog v. Superior Court. In Herzog, a healthcare company prompted users to assent to its terms of use before using a glucose monitoring app.¹³² The agreement appeared to be “classic ‘clickwrap,’ ” prompting a user to click a box stating: “I agree to Terms of Use.”¹³³ However, merely “categorizing the purported agreement as a clickwrap [did] not resolve the formation question.”¹³⁴ The court looked for “reasonably conspicuous notice” of the existence of terms to which users would be bound—specifically, the idea that “the content of [the app’s] ‘Legal’ screen support[ed] the inference that the user’s action on that screen—here, clicking the checkbox—constituted an unambiguous manifestation of assent to those terms.”¹³⁵ The company’s notice did not suggest assent; it read: “By ticking the boxes below you understand that your personal information, including your sensitive health information, will be collected, used and shared consistently with the Privacy Policy and Terms of Use.”¹³⁶ The court concluded that a reasonably prudent user would fail to understand the relationship between the Terms of Use, the Privacy Policy, and the company’s data collection.¹³⁷ Furthermore, users were confused by the fact that the company’s app was not necessary to use its glucose monitoring technology.¹³⁸ Herzog can be distinguished from other cases in this survey because it involved clickwrap pertaining to multiple sets of terms and services. Nevertheless, Massage Envy and Herzog both provide interesting points of contrast to the general presumption that clickwrap creates a valid agreement.

Overall, with a couple exceptions, courts viewed clickwrap agreements as largely enforceable, sometimes presumptively so.

2. Browsewrap Agreements

California State courts were generally protective of buyers confronted with browsewrap agreements but were inconsistent in their applications of standards of notice. In 2014, the Ninth Circuit wrote that it was “more willing to find the requisite notice for constructive assent where the browsewrap agreement resemble[d] a clickwrap agreement—that is, where the user is required to affirmatively acknowledge the agreement before proceeding with use of the website.”¹³⁹ Following Nguyen and Berman, pure browsewrap agreements became rare; offerors began to require more from consumers using their websites in order to indicate assent to their terms.

When confronted with hybridwrap or browsewrap agreements, courts largely adhered to the precedent set by three main decisions applying California law to facts involving browsewrap agreements: Nguyen, Specht, and Long v. Provide Commerce Inc.¹⁴⁰ In Long, a flower seller’s checkout flow did not create adequate notice that placing an order indicated a buyer’s acceptance, nor did a link sent to the buyer’s email create notice of the seller’s terms.¹⁴¹ Because browsewrap agreements require no affirmative action, “absent actual notice, ‘the validity of [a] browsewrap agreement turns on whether the website puts a reasonably prudent user on inquiry notice of the terms of the contract.’ ”¹⁴² The court examined whether the conspicuousness of the hyperlinks and design elements of the seller’s website would put a reasonably prudent user on notice.¹⁴³ In dicta, the court agreed with the Nguyen court; simply displaying a hyperlink without further notice is likely not enough to “alert a reasonably prudent Internet consumer to click the hyperlink.”¹⁴⁴

But not all courts applied these notice standards in the same way, and some courts were more concerned with buyer protections than others. Drawing from Long and Nguyen, Kellman v. Honest Co. looked for “something more” in addition to a seller’s browsewrap agreement that would put a reasonably prudent buyer on notice.¹⁴⁵ The court found that while a hyperlink and notice of the seller’s terms were not buried on the webpage, “they were in small print of a lighter color” and were “surrounded by text that did not suggest that the hyperlink was important.”¹⁴⁶ The court also emphasized the “realities of internet marketing and use,” citing Judge Sotomayor’s reasoning in Specht, and stressed that notice of a seller’s terms is essential to the “integrity and credibility” of online contracting and the ecommerce industry.¹⁴⁷ Because sellers are aware that very few buyers read terms of use, some sellers “design their websites to take advantage of consumer inattention.”¹⁴⁸ The court also cited Woodrow Hartzog who coined the phrase “malicious interface” to describe websites that deceive consumers.¹⁴⁹ It is a common law principle that parties should be bound to contracts that they enter into. But Kellman and Specht may suggest that unwitting assent is not assent at all.¹⁵⁰ These concerns are reminiscent of the Step-Saver court’s suggestion that sellers might take advantage of buyers’ reluctance to return a product if they dispute the terms of a shrinkwrap agreement.¹⁵¹

A few cases in the study attempted to provide definitions for various types of browsewrap and utilize appropriate standards of notice. Rabbani v. Tesla Motors described “pure-form browsewrap agreement[s]” as follows: “by visiting the Web site—something that the user has already done—the user agrees to the Terms of Use not listed on the site itself but available only by clicking a hyperlink.”¹⁵² Esparza v. 23andMe Inc. emphasized that an agreement is browsewrap if the offeror “assumes assent based upon the mere use of the website.”¹⁵³ “Website users are entitled to assume that important provisions—such as those that disclose the existence of proposed contractual terms—will be prominently displayed, not buried in fine print.”¹⁵⁴

Generally, when browsewrap agreements contained elements of clickwrap, they were more likely to be enforceable. This was due to the creation of “reasonable notice” through the affirmative act of clicking. Even when terms were hyperlinked or not immediately noticeable, website flows that incorporated an affirmative act on the part of the buyer were enforceable. In Collins v. Priceline, a website’s terms were only visible via a hyperlink but were enforced by the court because the buyer had adequate notice that “[b]y selecting Confirm Your Reservation [they] agree[d] to the Booking Conditions.” ¹⁵⁵ The affirmative act of clicking to move forward with the reservation resembled clickwrap enough for the court to hold the buyer to the terms.¹⁵⁶ Esparza and Collins were consistent with the Berman standard in that they emphasized the importance of an affirmative act, but Esparza did not apply the Berman framework, despite being decided in 2023.

Esparza also used a reasonably prudent user standard to determine whether a buyer had “adequate or constructive notice.” The court examined factors that the Nguyen and Long courts examined, such as “ ‘placement,’ color, and contrast of hyperlinks (i.e., ‘color-contrasting text’) and ‘the website’s general design.’ ”¹⁵⁷ The court in Rabbani v. Tesla Motors, Inc. also mentioned the reasonably prudent user standard but based its determination on the presence of “immediately visible notice,” quoting Specht.¹⁵⁸ Thus, although these cases used many similar standards of notice, they were inconsistent in their approaches to finding reasonable notice.

Overall, the courts were most protective of buyers in cases involving browsewrap agreements, unless the agreements involved an affirmative act of assent. The greater amount of inconsistency was likely due to the variation in what browsewrap agreements look like. Thus, courts looked for elements that resembled clickwrap, leaning on its presumptive enforceability. Courts also used a reasonably prudent user standard to determine whether reasonable notice was present, but there was no predominant standard among browsewrap cases.

3. Sign-In-Wrap Agreements

Sign-in-wrap resembles browsewrap in that it can cause a buyer—who believes they are merely signing up for an account or email list—to unwittingly assent to terms. But sign-in-wrap can also resemble clickwrap in that it can incorporate an affirmative act of assent into the sign-up flow. Courts generally struggled with a consistent treatment for sign-in-wrap and used several standards from browsewrap cases such as the reasonable notice and the reasonably prudent user standard.

A California appellate court was confronted with the issue of a sign-in-wrap agreement for the first time in 2021 in the case Sellers v. JustAnswer LLC.¹⁵⁹ A question-answering website prompted users with a button that read: “Start my trial” and small text below that read: “By clicking ‘Start my trial’ you indicate that you agree to the terms of service and are 13+ years old.”¹⁶⁰ Although the court noted that sign-in-wrap should be enforceable “based on the existence of essentially any textual notice that purports to inform consumers they agree to the terms by signing up for an account,” the court decided that the website’s notice was not “clear and conspicuous,” and the agreement was unenforceable.¹⁶¹ The Sellers court used a reasonableness standard to determine that the website’s notice was insufficient.¹⁶² The factors identified in Nguyen and Long (including text size, text color, text location, proximity to clickable buttons, obviousness of hyperlinks, and “clutter” on the screen) provided a baseline for the factual inquiry.¹⁶³ Additionally, the fact that the user was signing up for a free trial of a service and was not expecting to enter into an ongoing contractual relationship contributed to the lack of conspicuousness.¹⁶⁴ The court quoted Long: “California law is clear—‘an offeree, regardless of apparent manifestation of [their] consent, is not bound by inconspicuous contractual provisions of which [they were] unaware, contained in a document whose contractual nature is not obvious.’ ”¹⁶⁵ This set the stage for Oberstein, which solidified the “context” of a transaction standard that has yet to be embraced.¹⁶⁶

Sellers is also notable for its focus on how an average user or consumer behaves, echoing parts of the opinion from Step-Saver. While the defendant-seller urged the court to set bright-line rules governing sign-in-wrap agreements, the court declined to do so.¹⁶⁷ This was also the case in ProCD, in which Judge Easterbrook did not create specific requirements for sellers’ packaging out of fear of stifling business. The Sellers court commented on trends in online form contracting law, observing that courts have been inconsistent in their conceptualizations of a “typical online consumer.”¹⁶⁸ The court declared that “not all internet users are alike”;¹⁶⁹ some federal courts assume that “ ‘[a]ny reasonably-active adult consumer will almost certainly appreciate that by signing up for a particular service, he or she is accepting the terms and conditions of the provider.’ ”¹⁷⁰ Other Internet users might have “only recently, and perhaps begrudgingly, began to use cell phones, or other internet-enabled devices, for the purpose of online commerce.”¹⁷¹ Thus, federal courts have been inconsistent in their treatment, relying on “subjective criteria” as opposed to the aforementioned factors.¹⁷² An example is a court treating “conspicuousness” as the relevant question of law when it is “actually conducting . . . a fact-intensive inquiry.”¹⁷³ The Sellers court zoomed into the reasonably prudent user standard employed by many courts, setting the stage for Keebaugh.¹⁷⁴

Following the lead of Sellers, other sign-in-wrap cases in the case law survey did not establish or utilize a single standard. Instead, the cases likened sign-in-wrap agreements to browsewrap agreements and applied a broader “actual or constructive notice” standard. In Thompson v. Live Nation Entertainment, for example, the court emphasized the fact that a buyer received more than one opportunity to acknowledge a seller’s Terms of Use, and the use of a different font color for the terms created adequate notice.¹⁷⁵ On one hand, these are commonly examined factors within a notice inquiry. On the other hand, the courts’ decisions about which factors to examine were seemingly arbitrary.

The other case besides Sellers that held for a buyer was O’Connor v. Road Runner Sports, Inc., which turned on the fact that the buyer did not manifest assent because he did not use one of the modes of acceptance established by the seller.¹⁷⁶ The terms and conditions of the loyalty program provided “three ways a customer could manifest his or her assent to be bound: purchasing a membership, using a membership, or renewing a membership.”¹⁷⁷ Instead, the buyer called the seller’s toll-free phone line, so he did not agree to the seller’s terms.¹⁷⁸ As per common law, the offeror is the master of the offer, and in this case, the offeree did not undertake any of the modes of acceptance held out by the offeror.

Given the Sellers decision, California courts have not yet settled on a singular standard for determining whether a sign-in-wrap agreement is enforceable because they have taken varied approaches to assessing adequate notice. Further, Sellers casts doubt on courts’ adherence to so-called objective standards of notice. As the case law survey shows, courts have instead been using somewhat free-flowing, fact-based criteria.

In conclusion, California state courts were relatively consistent in presuming clickwrap agreements to be enforceable but were inconsistent in employing uniform standards of notice in browsewrap and sign-in-wrap cases. Part of the issue was the inability to define certain browsewrap agreements that did not fit cleanly into a single wrap category. Another issue, however, was the courts’ inconsistent application of standards, through which they examined a variety of factors to assess reasonable notice and sometimes relied on a reasonably prudent user or context of the transaction standard. These standards were somewhat selectively employed by the courts in the surveyed cases, which still showed deference to the presumptive enforceability of some agreement types over others.

B. U.S. District Courts in California

This Note examined twenty cases to provide a point of comparison to the state court case survey and to show that recent federal cases in California reach conclusions largely consistent with those of the state courts. Mirroring the state court case law survey, federal cases were chosen based on four criteria: (1) cases arose out of U.S. District Courts from districts in California; (2) cases were decided between the years 2014 and 2024 (inclusive); (3) the relationship between the parties to the case was that of a buyer and seller (or lessee/lessor), or the agreement in dispute arose out of a transaction for goods or services; and (4) the court addressed the validity of a clickwrap, browsewrap, scrollwrap, or sign-in-wrap contract. While the state court case law survey yielded no instances of scrollwrap contracts, this part of the survey will analyze four cases involving scrollwrap, finding that the courts’ conclusions were unsurprising and consistent with the former half of the case law survey. Again, the types of provisions in dispute in these cases were not relevant because the agreement was considered as a whole. Indeed, most of the selected cases involved disputes regarding forum-selection clauses and arbitration clauses.

Three cases contained discussions of the validity of clickwrap agreements, three contained scrollwrap, nine contained browsewrap, and seven contained sign-in-wrap (two browsewrap cases also contained aspects of sign-in-wrap).¹⁷⁹ In each of the cases involving clickwrap or scrollwrap, the court held for the seller. In the browsewrap cases, the court held for the seller in six out of nine instances. In the sign-in-wrap cases, the court held for the seller two out of five times. The ratio of pro-buyer and pro-seller decisions for each type of wrap were not drastically different from those in state courts (see Figure 1, supra). More important than these numbers, however, was the consistency found in the reasoning within the decisions.

The cases largely adhered to the general standards established by pre-Berman Ninth Circuit precedent. Some courts modeled their analysis on the facts of past cases. For example, in Friedman v. Guthy-Renker, the Central District Court of California closely followed the blueprint established in Nguyen in order to determine the validity of a browsewrap agreement.¹⁸⁰ In Peter v. Doordash, Inc., the court compared the actual webpage in question to the webpage in Meyer v. Uber Technologies.¹⁸¹ As was the case in state courts, it still remains to be seen whether the two-part test from Berman or the context of a transaction test will gain traction over time. Cases concerning scrollwrap agreements came out as expected; courts ruled for sellers because scrolling generally constituted an affirmative act of assent. When considering the enforceability of browsewrap or hybridwrap agreements, federal courts favored sellers slightly more than state courts. But overall, these decisions were unsurprising and largely consistent with California state courts.

1. Clickwrap Agreements

The courts followed a deferential presumption of validity when it came to pure clickwrap agreements, and referenced recent decisions in state or other federal courts. In Vanden Berge v. Masanto, the court noted that “[c]lickwrap agreements ‘have been routinely upheld by circuit and district courts.’ ”¹⁸² In Tingyu Cheng v. Paypal, Inc., the court declared that “[c]lickwrap agreements are routinely recognized by courts and are enforceable . . . .”¹⁸³ Determining that an agreement was identifiably clickwrap often ended a court’s inquiry into the agreement’s enforceability. As in state courts, notice was secondary to the presumption of validity.

Overall, there were no federal district court decisions concerning clickwrap that deviated from precedent. As was true in California state court cases, pure clickwrap agreements are still regarded as constituting an affirmative act of assent that binds a buyer.

2. Scrollwrap Agreements

The same consistency was true of cases involving scrollwrap agreements. Like pure clickwrap agreements, scrollwrap requires an affirmative act of assent through the action of physically scrolling down a webpage. However, scrollwrap arguably creates greater notice for a buyer because the entirety of the seller’s terms is built directly into the website flow. When the buyer is forced to acknowledge the entirety of the agreement, it is harder to argue that the buyer did not receive adequate notice. Generally, the discussions of the validity of pure scrollwrap agreements were not accompanied by fact-specific inquiries into the reasonableness of the notice.¹⁸⁴ Courts were simply willing to accept the reasoning found within other binding or persuasive precedent once the type of wrap was established. In 2023, the court in Flores v. Coinbase declared that “ ‘scrollwrap’ agreements are consistently found to be enforceable in California,” referencing Sellers.¹⁸⁵ In Perez v. Bath & Body Works, the court cited the Ninth Circuit in Berman, stating that there is “little doubt” as to the blanket enforceability of scrollwrap agreements because “they affirmatively show the terms to the user before obtaining assent rather than linking to a separate page containing the terms that does not need to be viewed prior to agreement.”¹⁸⁶

Though California state courts have not yet decided any scrollwrap cases, it is likely that those courts would reach similar conclusions. Of all the types of wrap, scrollwrap probably creates the greatest presumption of validity because it requires an affirmative act, and the terms are conspicuous and accessible, by definition.

3. Browsewrap Agreements

In contrast, courts were generally more skeptical of browsewrap agreements because of the passive nature of browsewrap. Some courts even expressed a presumption of invalidity for pure browsewrap agreements.¹⁸⁷ In Brooks v. IT Works Marketing, the court stated that “[i]nternet contracts fall on two ends of a spectrum; courts routinely find clickwrap agreements enforceable but are generally more reluctant to enforce browsewrap agreements.”¹⁸⁸ Moyer v. Chegg quoted Berman: “Courts are more reluctant to enforce browsewrap agreements because consumers are frequently left unaware that contractual terms were even offered, much less that continued use of the website will be deemed to manifest acceptance of those terms.”¹⁸⁹ As the court reasoned in Nguyen, a buyer is not expected to seek out the terms of an agreement and sellers should be responsible for providing notice.¹⁹⁰ Of the cases surveyed, when cases involved a pure browsewrap agreement that contained no elements of clickwrap or sign-in-wrap, the court ruled in favor of the buyer.¹⁹¹ This is consistent with the former part of the case law survey.

Courts’ inquiries became more complicated when browsewrap was combined with elements of clickwrap or sign-in-wrap. Notice of the terms of the agreement was almost always the standard, and courts again examined various factors.¹⁹² In some of the cases examined, the courts did not even deem it necessary to categorize a website as offering one of the four recognized types. Eight out of nine browsewrap cases examined involved a form of hybridwrap, and given the variation in those agreements, the courts utilized a fact-specific inquiry across the board.

Reasonable notice or reasonably prudent user standards were most common. In Friedman v. Guthy-Renker, the court looked for “browsewrap that resemble[d] a clickwrap” because such an agreement would require an affirmative act of assent, evincing notice.¹⁹³ Applying the reasonably prudent user standard adapted from Nguyen, the court held for one of the plaintiff-buyers and found that “a reasonably prudent person would not believe that the common noun ‘terms’ associated with the checkbox [were] the same terms found in the proper noun ‘Terms & Conditions’ at the bottom of the page.”¹⁹⁴ Similarly, in Chien v. Bumble, a “blocker card contain[ed] aspects of both clickwrap and browsewrap agreements” and was “comparable to a pop-up screen in that users must click ‘I accept’ before they may proceed” but needed to click a hyperlink to view the full terms.¹⁹⁵ However, the notice was “reasonably conspicuous,” and the agreement was therefore valid.¹⁹⁶

In Shultz v. TTAC Publishing, a hybrid browsewrap agreement was invalidated because the checkbox next to the statement, “I agree to the terms and conditions,” was already checked by default when a customer navigated to the checkout page; therefore, there was no affirmative act of assent.¹⁹⁷ Nevertheless, the court engaged in a factual inquiry as to whether there was sufficient notice to justify the browsewrap agreement, finding that “the webpage design [made] it exceedingly difficult to discern the significance of the hyperlink.”¹⁹⁸ As was true in state courts, federal courts in California routinely applied similar, yet not identical, standards for notice. In a way, it did not matter that each of these cases involved browsewrap because the courts did not assign much inherent meaning to the category. The importance of browsewrap as a distinct category eroded in the face of many distinct types of hybridwrap.

In one sense, these cases validate the observation of the Sellers court: federal courts have relied on “subjective criteria” as opposed to one consistent version of a reasonable notice standard.¹⁹⁹ That being said, the courts consistently drew from the same pool of examinable factors in evaluating whether adequate notice was given, including fonts, sizes, colors, and proximity to clickable buttons. Generally, like the cases surveyed in Section II.A, federal courts in California preferred to draw on multiple factors and standards used by precedent in assessing notice. A singular, objective standard of reasonable notice thus remains elusive.

4. Sign-In-Wrap Agreements

Like state court cases, federal cases involving sign-in-wrap agreements involved a fact-specific inquiry into the buyer’s experience and did not place much inherent value on the sign-in-wrap category. A fact-based inquiry was typically warranted. Serrano v. Open Road Delivery Holdings cited Sellers, stating,

[I]t is not apparent that the consumer is aware that they are agreeing to contractual terms simply by clicking some other button. Instead, the consumer’s assent is largely passive, and the existence of a contract turns on whether a reasonably prudent offeree would be on inquiry notice of the terms at issue.²⁰⁰

The webpage should have provided “conspicuous notice to permit an inference that the user had manifested assent.”²⁰¹ The court held for the consumer and found that notice was not conspicuous because of the small size of the text informing consumers that they were assenting to the terms of use by signing up.²⁰²

Courts employed a few other means of assessing notice. In addition to performing a broader factors-based inquiry, the court in Peter v. Doordash directly compared a seller’s sign-up page to the page considered by the Second Circuit in Meyer v. Uber Technologies.²⁰³ The court stated that “[t]he screens are similarly uncluttered and wholly visible, and the notice text appears even closer to the sign-up button on DoorDash’s page than on Uber’s.”²⁰⁴ In addition to using a more general standard, the court relied on a side-by-side comparison of two webpages.²⁰⁵ Lastly, the court in Regan v. Pinger declined to settle on a precise label for the sign-in-based agreement and instead looked for broadly “sufficient notice to manifest mutual assent,”²⁰⁶ as was true for some browsewrap cases as well.

Overall, sign-in-wrap cases in federal district courts also applied standards of reasonable notice in an inconsistent manner. Courts employed various techniques, including comparing the webpage in question to webpages from past cases and examining website elements, such as fonts, separately. These cases support the Sellers court’s criticism of the inconsistent application of notice standards in federal courts.

In conclusion, this case law survey reveals consistency with California state courts. Beyond the presumptions of validity for clickwrap and scrollwrap contracts, standards of notice generally became nebulous as courts utilized any combination of website factors as well as other methods such as direct comparisons to websites from previous cases. Both state and federal courts struggled to pinpoint a consistent method of assessing whether reasonable notice was present, and even the reasonably prudent user standard yielded different results depending on how the court chose to define an average user. Thus, federal courts in California were largely consistent with state courts in their treatment of clickwrap, scrollwrap, browsewrap, and sign-in-wrap cases.

C. Summary of Findings

To summarize, this case law survey shows consistency among state and federal courts in California. Courts were generally deferential to sellers and their offers if adequate notice was given to the buyer. This aligns with Judge Easterbrook’s perspective in ProCD. However, California courts also employed a reasonably prudent user standard, which can be traced back to Berman, Specht, and Step-Saver. Finally, this Note concludes by arguing that Step-Saver and ProCD remain relevant as online contracts evolve because they establish and contextualize the most commonly used standards of notice in California. Courts will likely continue to lean on their reasoning in applying common law principles as new types of contracts emerge over time.

1. Standards of Notice

In some clickwrap and scrollwrap cases, courts were willing to declare an agreement valid solely because courts have presumed clickwrap and scrollwrap to be enforceable in the past.²⁰⁷ On the other hand, some courts seemed reluctant to rely on categories at all.²⁰⁸ However, most cases in the case law survey engaged in some level of fact-specific inquiry, and a few main standards were seen most frequently. It remains to be seen whether the two-part standard from Berman or the transactional “context” standard from Oberstein will gain traction in the coming years.

The reasonable notice standard was almost always applied throughout the case law survey. Consistent with the precedent set by Nguyen, Specht, and Berman, courts examined various website design factors such as font size, font color, proximity to clickable buttons, underlining on hyperlinks, and the presence of an affirmative act of assent before completing a transaction.²⁰⁹ Though Nguyen provided some specific rules pertaining to browsewrap,²¹⁰ there is still no requirement that courts examine certain factors or website elements. Perhaps this approach is practical considering the wide variation in sellers’ website flows. However, the looseness of the standard was also a source of inconsistency throughout the survey, and courts created their own interpretations by picking and choosing certain factors to examine.²¹¹

The reasonably prudent user standard was often used with the reasonable notice standard and acted as a loose benchmark for courts analyzing the experience of a consumer engaging with a seller’s interface. Some courts treated it as an independent standard,²¹² while some courts treated is as a subset of reasonable notice.²¹³ The court in Sellers criticized some courts’ exercise of the reasonably prudent user standard as being too subjective and inconsistent.²¹⁴ In considering the potential longevity of this standard, it is difficult to imagine whether the average Internet user of the future will be more or less prudent. Perhaps the average American will be more digitally literate in twenty or fifty years than they are today. Or perhaps technology will continue to evolve, leaving some generations and users behind. Nevertheless, it is certain that sellers and their offers will continue to evolve, causing standards to continue to adapt.

A few other methods of assessing notice were seen in the case law survey. The court in Sellers also wrote that some federal courts were using adjacent, but different, standards to determine whether sufficient notice was present, such as “conspicuousness.”²¹⁵ Conspicuousness was sometimes employed as an independent test, as one of many factors of the reasonable notice standard, and as a separate prong of the Berman test.²¹⁶ Overall, courts have been inconsistent in their application and analysis of conspicuousness. Additionally, some courts decided to forgo tests and standards in favor of making comparisons to websites and agreements that have been seen in courts already. Those decisions focused on the fact that the browsewrap or sign-in-wrap agreement in question resembled a similar agreement in a previous case. For example, the court in Peter v. Doordash compared the seller’s sign-up page to the website in Meyer, stating that “DoorDash’s sign-up page looks markedly similar to the page approved by Meyer. The screens are similarly uncluttered and wholly visible, and the notice text appears even closer to the sign-up button on DoorDash’s page than on Uber’s.”²¹⁷ Comparing agreements to others that have already been “approved” by courts may be temporarily efficient. Looking forward, however, this method may not be sustainable if online agreements continue to evolve at a fast pace. Some legal scholars, including Cheryl B. Preston, are not optimistic about the potential of evolving notice standards to sufficiently protect consumers, especially given the needs of the “Internet-instant-gratification generation.”²¹⁸ Perhaps Judge Easterbrook and the Sellers court were wise in declining to create bright-line rules; standards offer greater flexibility and adaptability to the online contracts of tomorrow.

This Note will not propose what alternative, more successful standards of notice might look like.²¹⁹ However, some other jurisdictions adopt combinations of these tests. Within the last few years, for example, Maine has embraced a “two-step inquiry” in which the first step focuses on a reasonably prudent user being put on reasonable notice of the contract terms, and the second step focuses on whether the user has manifested their assent.²²⁰ Perhaps California courts embrace the Berman standard and the context of the transaction test, which seek to combine many of the standards that have been employed within the past decade. A more uniform standard for notice would create consistency and reduce the current reliance on courts to define the scope of a notice inquiry.

This case law survey shows that a singular notice standard remains to be established in California. While reasonable notice was almost universally considered important, courts created their own interpretations of this standard and applied it in many different ways.

2. The Erosion of Distinct Wrap Categories

The results of this case law survey also show that courts did not always utilize California’s four wrap categories in evaluating the validity of an agreement. While the clickwrap and scrollwrap categories carried presumptions of validity,²²¹ the browsewrap and sign-in-wrap categories lacked definite boundaries and uniform standards of notice. A concurring opinion in Berman made a bold proposition: “browsewrap agreements are unenforceable per se; sign-in wrap agreements are in a gray zone; and clickwrap and scrollwrap agreements are presumptively enforceable.”²²² While this may be true for now, the Berman court’s declaration may lose relevance as soon as wrap contracts further evolve—or devolve.

One issue is that courts were not always consistent in their categorization of wrap agreements. In state and federal courts, there was a struggle to define agreements when they incorporated elements of more than one type of wrap. Some of the decisions labelled by the courts as browsewrap or hybridwrap involved website flows that also directed users to sign-in or create accounts.²²³ Thus, going forward, the wrap categories may only be useful insofar as the courts are consistent in their categorizations. Further, sellers are constantly adapting to standards set by new case law. For example, because Nguyen discouraged the use of a pure browsewrap agreement,²²⁴ sellers have expanded the world of browsewrap to include many hybrid variations. Courts often fail to characterize these agreements in specific or useful ways. For example, the state court case Kellman v. Honest Co. adopted the language used in Long v. Provide Commerce to describe the type of agreement in dispute: browsewrap with “something more.”²²⁵ Not only was this definition of an agreement vague, but it also relied on a clear definition of browsewrap, which may no longer exist.

The fact that courts have recognized new types of wrap in the past may suggest that there is room for further types of agreements in California contract law. However, even if courts were to acknowledge new categories, such a process would likely occur gradually, moving at a speed much slower than the speed at which sellers create new website flows. As mentioned before, courts still take a reactionary, ex ante approach when assessing the validity of an online contract.²²⁶

Looking forward, advances in technology may further blur the lines. Companies today are converting customers by monetizing places that are not traditionally used as marketplaces. “Social commerce,” for example, allows users of social media platforms like Instagram and Facebook to “purchase products without ever leaving the platform.”²²⁷ “Experience commerce” is another new example, promising to put the “customer first” and remove “the product from the center of the sales solution or offering” to create an “immersive . . . experience.”²²⁸ This Note does not speculate extensively about the future of ecommerce, but as Internet users find themselves becoming buyers in new contexts, they probably run a greater risk of assenting to terms unwittingly.

Overall, as sellers continue to adapt to current standards and hybridwrap becomes more pervasive, a fact-specific inquiry tailored to the agreement in question might always be necessary—even for cases involving clickwrap or scrollwrap. Thus, it is also worth considering whether these categorizations remain useful at all. First, there were the “two flavors” of contracts, clickwrap and browsewrap, and today, California courts recognize four. Moving forward, perhaps there will be many more—or none at all. This case law survey shows that the categories are already breaking down as sellers’ websites resist simple categorization. If courts continue to prefer reasonable notice or reasonably prudent user standards, then perhaps hard-and-fast contract categories will cease to be necessary because these standards apply regardless of the wrap type. Browsewrap and sign-in-wrap have arguably already lost their efficacy as distinct categories because there is so much variation among website flows. Indeed, courts sometimes declined to categorize agreements at all and instead prioritized a notice analysis.²²⁹

It is unclear whether the deterioration of wrap categories and emergence of fact-specific inquiries will create more protection for buyers. On the one hand, a fact-specific inquiry could benefit buyers because sellers exercise the most control over their websites. As masters of their own offers, they alone have the power to set the terms of the transaction. As Judge Wisdom suggested in Step-Saver, the fact that there is often no transaction history between parties to these contracts might cause buyers to assent to agreements that they do not anticipate or expect.²³⁰ On the other hand, and as emphasized by Judge Easterbrook in ProCD, the ubiquity of ecommerce and the natural competition of the market may create enough protection,²³¹ even as website flows evolve to become more complex. Although most consumers do not read sellers’ terms, reputation matters in a saturated market and might incentivize sellers to provide more favorable terms. Whether distinct wrap categories have longevity or not, courts likely need to define the appropriate notice standard that should be applied, which could eliminate some of the inconsistency highlighted by the Sellers court.

For now, this case law survey also shows that the four distinct contract categories still center in California courts’ preliminary analysis of the validity of an online contract, though hybridwrap is becoming more pervasive. Courts almost always begin their analysis of an agreement’s enforceability with an acknowledgement of the types of wrap, whether they use the categorization to presume validity or proceed to look for adequate notice by the seller. Because all wrap types can be potentially valid, courts are generally deferential to sellers and how they want to set the terms of their offers. There are still few bright-line requirements for sellers in this area of contract law, and parties are generally free to contract as they please.

3. The Relevance of Step-Saver and ProCD

The precedent set by Step-Saver and ProCD three decades ago is still applicable today. An important part of the ProCD decision was Judge Easterbrook’s adherence to the common law principle that any mode of acceptance set by an offeror—hence, any type of wrap—is valid as long as the buyer has notice. The offeror is the master of the offer and can propose specific modes of assent. The reasonable notice standard used widely in California is consistent with Judge Easterbrook’s determination that ProCD’s pop-up box gave the buyer enough notice of the seller’s agreement.²³² Many of the cases surveyed also prioritized the experience of buyers as part of an analysis of adequate notice. Relatedly, the reasonably prudent user standard can be traced to Step-Saver and Specht. It forces sellers to acknowledge the other party in designing an offer and work around the experience of the buyer or user. Perhaps this amounts to more protection for buyers. In some cases, the court went so far as to insinuate that sellers take advantage of buyers in formulating their modes of acceptance.²³³ Yet, this case law survey also shows that the ProCD and Step-Saver perspectives are not incompatible. Elements of both cases have made their way into California contract law, though Judge Easterbrook’s approach seems to be slightly more pervasive today.

Step-Saver and ProCD are often seen as cases that are pro-buyer or pro-seller. Step-Saver was largely concerned with holding businesses accountable and is an important check on sellers. In contrast, Eric Posner termed ProCD a “masterpiece of realist judging” in the “canon of contract law cases” because it encouraged sellers to continue conducting business as they had been.²³⁴ However, given the landscape of online contracting and the importance of notice, perhaps the cases should be recast as simply endorsing different standards of notice. Step-Saver is more aligned with the reasonably prudent user standard while ProCD is more aligned with reasonable notice. Online contract cases today implicitly recognize that form contracts enable the marketplace to function efficiently. Yet, because online sellers’ website flows vary to such a great degree, it is difficult to make blanket statements as to the validity of certain agreements. Thus, notice will almost certainly remain a point of discussion for courts, and these cases will remain relevant as the sources of two significant standards of notice.

The world of online contracting is quickly outpacing the factual relevance of the two cases because new means of manifesting assent are rapidly being invented. For example, the box-top licenses in Step-Saver and ProCD can be likened to browsewrap agreements today, but many sellers have already stopped creating pure browsewrap agreements after Nguyen. While form contracts will likely remain important and necessary for online contracting, current shrinkwrap-like modes of acceptance may not. Nevertheless, these cases connect the concept of notice in form contracts to essential contract common law principles. As long as online modes of contracting are held to the same requirements of offer and acceptance, the reasoning of Judge Wisdom and Judge Easterbrook should remain in contract casebooks. These two cases contributed to the development of major standards of notice.

CONCLUSION

As was true three decades ago when Step-Saver and ProCD created a circuit split, courts are still determining how to evaluate notice when considering the validity of form contracts. When courts evaluate the validity of a clickwrap or scrollwrap agreement, precedent alone may dictate a certain outcome. For cases involving browsewrap or sign-in-wrap, a fact-specific inquiry is almost always necessary. While it remains to be seen whether California’s four types of wrap will continue to be useful or important in evaluating sellers’ offers and agreements, it is likely that courts will continue to look for adequate notice. This case law survey demonstrates that there are two main standards of notice that can be traced back to ProCD and Step-Saver: a factor-based reasonable notice standard and a reasonably prudent user standard. There is presently no uniform method of applying these standards in California, but most courts nevertheless acknowledge that elements of both are important. Overall, case law is trending towards the ProCD view that contracting should not be impeded by burdensome standards for sellers. However, sellers should still be held to reasonable standards to keep consumers informed, which is consistent with Step-Saver. In conclusion, these two cases remain important as courts continue to evaluate whether buyers were sufficiently notified of sellers’ terms.

APPENDIX A. Surveyed Cases in California State Courts
	Case	Held For	Type of Contract	Disputed Terms	Summary
1	B.D. v. Blizzard Ent., Inc., 292 Cal. Rptr. 3d 47 (Ct. App. 2022)	Seller	Clickwrap	Arbitration Provision	Seller’s pop-up box gave sufficiently conspicuous notice that clicking a “Continue” button would manifest assent to the terms of a License Agreement.
2	Bowers v. Ritchie Bros., No. RG21095426., 2021 Cal. Super. LEXIS 33293 (Aug. 18, 2021)	Seller	Clickwrap	Forum-Selection Provision	Buyer assented to an agreement by clicking “I agree to the IronPlanet Buyer Terms and Conditions,” which was necessary to proceed with the transaction.
3	Doe v. Massage Envy Franchising, LLC, 303 Cal. Rptr. 3d 269 (Ct. App. 2022)	Buyer	Clickwrap	Arbitration Provision	Buyer brought an action for sexual assault, to which a seller moved to compel arbitration based on a clause in seller’s agreement. Buyer did not assent to a seller’s terms of service on an electronic tablet because the font color of the notice statement was not conspicuous, and terms were hyperlinked. Buyer was pressured to complete the forms quickly by seller’s staff.
4	Herzog v. Superior Ct., 321 Cal. Rptr. 3d 93 (Ct. App. 2024)	Buyer	Clickwrap	Arbitration Provision	Buyer assented to a healthcare company’s terms by clicking a box, but the agreement was deemed unenforceable because clicking the box also constituted authorization for the company to collect and store the personal health information; thus, there was no unambiguous assent to the terms.
5	Jackson v. Vines, No. CVRI2201731, 2023 Cal. Super. LEXIS 69073 (Jan 10, 2023)	Seller	Clickwrap	Arbitration Provision	Buyer assented to terms via a clickwrap agreement and could not use the fact that he did not recall doing so as a defense.
6	Njoku v. Airbnb, Inc., No. 21STCV34610, 2021 Cal. Super. LEXIS 84568 (Dec. 23, 2021)	Seller	Clickwrap	Arbitration Provision	Buyers were bound by an agreement because they clicked an electronic button that indicated their assent, even though the actual terms were hyperlinked and on another page.
7	Pierre v. Dexcom Inc., No. 37-2023-00014471, 2023 Cal. Super. LEXIS 56618 (July 28, 2023)	Seller	Clickwrap	Arbitration Provision	Buyer was bound by a clickwrap agreement that read “I agree” or “I accept” and was provided with a link to the readily available agreement.
8	Shaw v. U-Haul, No. 21STCV20248, 2022 Cal. Super. LEXIS 23561 (Mar. 16, 2022)	Seller	Clickwrap	Arbitration Provision	Buyer manifested assent by clicking “Accept” with respect to seller’s Arbitration Agreement.
9	Xiong v. Jeunesse Glob., LLC, No. 30-2019-01095448, 2020 Cal. Super. LEXIS 5220 (Oct. 6, 2020)	Seller	Clickwrap	Arbitration Provision	Buyer was bound by a clickwrap agreement that read “I agree,” and her inability to remember whether she clicked the box was an insufficient defense.
10	Blood v. L.T.D. Commodities LLC, No. 37-2020-00034050, 2021 Cal. Super. LEXIS 56220 (Sept. 24, 2021)	Buyer	Browsewrap	Arbitration Provision	A button on seller’s website that read “START SAVING” did not notify buyer that clicking the button would constitute assent to seller’s terms.
11	Collins v. Priceline.com, LLC, No. 20STCV10231, 2020 Cal. Super. LEXIS 5739 (Dec. 22, 2020)	Seller	Browsewrap	Arbitration Provision	Seller’s website contained an enforceable part-browsewrap, part-clickwrap agreement because buyer had to click to assent and complete a reservation.
12	Esparza v. 23andMe Inc., No. 37-2022-00051047, 2023 Cal. Super. LEXIS 54347 (July 21, 2023)	Buyer	Browsewrap	Arbitration Provision	A website’s terms of use were not binding because they were only available by clicking a hyperlink after scrolling to the bottom of the page or in the site’s chat feature.
13	Kellman v. Honest Co., No. RG16 813421, 2016 Cal. Super. LEXIS 20519 (Nov. 28, 2016)	Buyer	Browsewrap/ Hybridwrap	Arbitration Provision	Seller’s website design did not include design elements that would put a reasonably prudent buyer on notice of a browsewrap agreement.
14	Long v. Provide Com., Inc., 200 Cal. Rptr. 3d 117 (Ct. App. 2016)	Buyer	Browsewrap	Arbitration Provision	Seller’s checkout flow did not create adequate notice that placing an order indicated acceptance, nor did a link sent to buyer’s email create notice.
15	Pradmore v. J2 Glob., Inc., No. CGC-17-561916, 2018 Cal. Super. LEXIS 739 (Apr. 20, 2018)	Seller	Browsewrap/ Hybridwrap	Arbitration Provision	Seller’s agreement was enforceable because it contained elements of browsewrap but also required buyer to click a box to assent to complete a transaction.
16	Rabbani v. Tesla Motors Inc., No. 37-2021-00004478, 2021 Cal. Super. LEXIS 56460 (May 21, 2021)	Seller	Browsewrap	Arbitration Provision	Buyer was notified that placing an order would indicate assent to seller’s terms and did not click on hyperlinks that would have revealed said terms.
17	O’Connor v. Rd. Runner Sports, Inc., 299 Cal. Rptr. 3d 785 (Ct. App. 2022)	Buyer	Sign-In-Wrap	Arbitration Provision	In manifesting assent to cancel his membership to a seller’s loyalty program, buyer did not use seller’s preferred method to cancel the membership and seller’s arbitration agreement was found to be unenforceable.
18	Sellers v. JustAnswer LLC, 289 Cal. Rptr. 3d 1 (Ct. App. 2021)	Buyer	Sign-In-Wrap	Arbitration Provision	A sign-in-wrap agreement was not binding when buyer signed up for a free trial of a service because notice was not clear and conspicuous, and this was not the type of transaction that would entail an ongoing contractual relationship.
19	Skurskiy v. Neutron Holdings, Inc., No. 19STCV36846,Cal. Super. LEXIS 104325 (Cal. Super. Ct. Apr. 15, 2021)	Seller	Sign-In-Wrap	Arbitration Provision	In signing up for a seller’s service, buyer clicked an “I Agree” button where language on the page was apparent that clicking would indicate assent to seller’s user agreement.
20	Thompson v. Live Nation Ent., No. 30-2018-00976153, 2018 Cal. Super. LEXIS 42847 (May 4, 2018)	Seller	Sign-In-Wrap/Browsewrap	Arbitration Provision	Buyer was required to acknowledge seller’s terms twice in the process of creating an account and therefore assented. Key terms were set apart in a different color from other words.

APPENDIX B. Surveyed Cases in U.S. District Courts in California
	Case	Held For	Type of Contract	Disputed Terms	Summary
1	Brown v. Madison Reed, Inc., No. 21-cv-01233, 2021 U.S. Dist. LEXIS 164002 (N.D. Cal. Aug. 30, 2021)	Seller	Clickwrap	Arbitration Provision	Buyer was bound by seller’s agreement because notice of the terms was set apart in bold and in a different color. Clicking to manifest assent was required to place an order.
2	Tingyu Cheng v. Paypal, Inc., No. 21-cv-03608, 2022 U.S. Dist. LEXIS 7245 (N.D. Cal. Jan 13, 2022)	Seller	Clickwrap	Arbitration Provision	Seller’s agreement was binding on buyer because he had to check a box indicating that he had read and agreed to a User Agreement and clicked a large blue button to indicate assent to creating an account.
3	Vanden Berge v. Masanto, No. 20-cv-00509, 2020 U.S. Dist. LEXIS 261762 (S.D. Cal. Sept. 22, 2020)	Seller	Clickwrap	Arbitration Provision	Buyer was bound by seller’s terms because she affirmatively agreed to a clickwrap agreement while making a purchase.
4	Flores v. Coinbase, Inc., No. CV 22-8274, 2023 U.S. Dist. LEXIS 90926 (C.D. Cal. Apr. 6, 2023)	Seller	Scrollwrap	Arbitration Provision	Seller’s scrollwrap agreement was valid because the full text of the User Agreement was placed before buyer.
5	Perez v. Bath & Body Works, LLC, No. 21-cv-05606, 2022 U.S. Dist. LEXIS 116039 (N.D. Cal. June 30, 2022)	Seller	Scrollwrap	Arbitration Provision	Seller’s agreement was valid because buyer was physically required to scroll through the terms in order to assent.
6	Stewart v. Acer Inc., No. 22-cv-04684, 2023 U.S. Dist. LEXIS 10241 (N.D. Cal. Jan. 20, 2023)	Seller	Scrollwrap	Arbitration Provision	Seller’s agreement was enforced because the terms appeared after turning on the product (a computer) and constituted adequate notice.
7	Allen v. Shutterfly, Inc., No. 20-cv-02448, 2020 U.S. Dist. LEXIS 167910 (N.D. Cal. Sept. 14, 2020)	Seller	Browsewrap/ Hybridwrap	Arbitration Provision	Buyer was bound by a browsewrap agreement where constructive notice was present due to the conspicuousness of the terms, although they were hyperlinked.
8	Brooks v. IT Works Mktg., No. 21-cv-01341, 2022 U.S. Dist. LEXIS 103732 (E.D. Cal. June 9, 2022)	Buyer	Browsewrap	Arbitration Provision	Buyer was not bound by seller’s terms because she never saw the link to the Terms of Use as they were in a small font and an inconspicuous color.
9	Chien v. Bumble Inc., 641 F. Supp. 3d 913 (S.D. Cal. 2022)	Seller	Browsewrap/ Hybridwrap	Arbitration Provision	Buyer was bound by seller’s agreement because a pop-up blocker card containing the Terms and Conditions and a button stating “I accept” was reasonable notice.
10	Crawford v. Beachbody, LLC, No. 14cv1583, 2014 U.S. Dist. LEXIS 156658 (S.D. Cal. Nov. 5, 2014)	Seller	Browsewrap/ Hybridwrap	Forum-Selection Provision	An enforceable agreement was made because seller’s Terms and Conditions were in a conspicuous font directly below the “PLACE ORDER” button to complete the transaction.
11	DeVries v. Experian Info. Sols., Inc., No. 16-cv-02953, 2017 U.S. Dist. LEXIS 26471 (N.D. Cal. Feb. 24, 2017)	Seller	Browsewrap/ Hybridwrap	Arbitration Provision	Seller’s browsewrap agreement was valid because there was adequate notice when the phrase “Terms and Conditions” was in a different color and in close proximity to a clickable button.
12	Friedman v. Guthy-Renker LLC, No. 14-cv-06009-, 2015 U.S. Dist. LEXIS 24307 (C.D. Cal. Feb. 27, 2015)	Buyer	Browsewrap/ Hybridwrap	Arbitration Provision	Buyer was not bound by seller’s terms and conditions because the hyperlink to the terms was “buried” at the bottom of the screen and not enough notice was provided of their existence.
13	Hansen v. Ticketmaster Ent., Inc., No. 20-cv-02685, 2020 U.S. Dist. LEXIS 233538 (N.D. Cal. Dec. 11, 2020)	Seller	Browsewrap/ Sign-In-Wrap	Arbitration Provision	Seller’s browsewrap agreement was valid because assenting to terms was required before buyer had the option to purchase tickets from seller.
14	Moyer v. Chegg, Inc., No. 22-cv-09123, 2023 U.S. Dist. LEXIS 128352 (N.D. Cal. July 25, 2023)	Seller	Browsewrap/ Sign-In-Wrap	Arbitration Provision	Buyer was bound because she received conspicuous notice of the terms, which were hyperlinked right below a button that buyer needed to click to create an account.
15	Shultz v. TTAC Publ’g, LLC, No. 20-cv-04375, 2020 U.S. Dist. LEXIS 198834 (N.D. Cal. Oct. 26, 2020)	Buyer	Browsewrap/ Hybridwrap	Arbitration Provision	Buyer was not bound by seller’s browsewrap/clickwrap agreement because the checkbox next to the statement “I agree to the terms and conditions” was checked by default, requiring no act of assent by the user.
16	Colgate v. Juul Labs, Inc., 402 F. Supp. 3d 728 (N.D. Cal. 2019)	Buyer	Sign-In-Wrap	Arbitration Provision	Seller’s notice was not conspicuous enough to notify buyer because the hyperlink to the Terms and Conditions was not underlined, italicized, or visually distinct from the surrounding text.
17	Seneca v. Homeaglow, Inc., No. 23-cv-02308, 2024 U.S. Dist. LEXIS 33698 (C.D. Cal. Feb. 7, 2024)	Buyer	Sign-In-Wrap	Arbitration Provision	Seller’s sign-in-wrap agreement was not binding on buyer because buyer had already purchased services from seller when the agreement was presented, and the notice was not conspicuous.
18	Peter v. Doordash, Inc., 445 F. Supp. 3d 580 (N.D. Cal. 2020)	Seller	Sign-In-Wrap	Arbitration Provision	Seller’s agreement was notably similar to the agreement in Meyer and the notice text was conspicuous. Thus, the agreement was binding on buyer.
19	Regan v. Pinger, Inc., No. 20-CV-02221, 2021 U.S. Dist. LEXIS 33839 (N.D. Cal. Feb. 23, 2021)	Seller	Sign-In-Wrap	Arbitration Provision	Seller’s repeated notice that the creation of an account would constitute assent to the Terms of Service was enough to bind a user.
20	Serrano v. Open Rd. Delivery Holdings, Inc., 666 F. Supp. 3d 1089 (C.D. Cal. 2023)	Buyer	Sign-In-Wrap	Arbitration Provision	Seller’s webpage did not provide reasonably conspicuous notice of the terms and conditions because the notice text was small and in a light-colored font.

98 S. Cal. L. Rev. 419

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Sophie Lee*

* Executive Membership Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. History, Creative Writing 2022, Columbia University. Thank you to Professor Jonathan Barnett and Professor Jordan Barry for the thoughtful feedback and to my friends and family for their consideration and acceptance.

The Embodiment of Sovereignty: Outrages, Section 1983 Litigation, and the Federalism Revival

April 2025April 2025Norman W. Spaulding*

A remarkable number of canonical Section 1983 cases and many other less well-known civil rights cases involve extraordinary violence—brutality that cannot be described either as a bureaucratically rational, dispassionate expression of state power, or as marginally disproportionate in relation to the legally authorized level of force incident to the state’s monopoly on violence. They instead involve what the drafters of Section 1983 called “outrages”—extraordinary excess, a level of violence that is not merely disproportionate, but unbridled, not merely painful, but severe, degrading, abusive, extended, grotesque, gratuitous, orgiastic, carnivalesque, barbaric, and all too often fatal for Black people. What accounts for this cruelty (and the apparent pleasure taken in inflicting it) on the part of officers of the state? Why does it persist?

Reading across a range of interdisciplinary sources on extravagant violence, I argue that it involves the interaction of a number of elements: the fantasy of finding/generating legal certainty in the imposition of bodily suffering, the enactment of social and political domination (including controlling color and gender lines), the role of terror and physical abuse in relationships structured by dependency, and ambivalence in officers’ embodiment of sovereignty (officers who are both bound by and always potentially above the law). Extraordinary violence was also well known to the drafters of Section 1983. Unfortunately, the modern Court’s limitations on the Section 1983 cause of action and remedies betray the text of the statute and its unmistakable legislative purpose to provide redress for “outrages.”

INTRODUCTION

The exception explains the general and itself. . . . It brings everything to light more clearly than the general itself. After a while, one becomes disgusted with the endless talk about the general—there are exceptions. If they cannot be explained, then neither can the general be explained.

—Søren Kierkegaard¹

The landscape of Section 1983 precedent is littered with dead, mutilated bodies. It is saturated with blood. The children strewn across this landscape who are not dead themselves (shot in the back, even the face)² have been beaten, forcibly sterilized,³ and abused in other ways.⁴ Private homes have been ransacked,⁵ burst asunder.⁶ The houses of detention that dominate the landscape⁷ reek of fecal matter, the stench of burning flesh, pestilence, and countless other indignities.⁸ Time itself is seized and obliterated for the wrongfully convicted who linger for decades in prison.⁹

I refer here not to cases involving ordinary displays of the state’s monopoly on violence—the monopoly which political scientists and sociologists tell us must be held by the state and its law enforcement officers.¹⁰ Nor do I refer to the fact, insisted upon by Robert Cover, that while the exercise of judicial review may check the state’s monopoly on violence, it also rationalizes that violence.¹¹ “Legal interpretation,” Cover trenchantly observes, “takes place in a field of pain and death.”¹² Courts are implicated, inexorably, he insists, in the state’s monopoly on violence.¹³

These are not the cases to which I refer. However painful and even fatal the ordinary operation of law can be, the cases to which I refer do not involve bureaucratically rational, efficient, dispassionate expressions of state power.¹⁴ Nor are they cases in which brutality is marginally disproportionate in relation to the legally authorized level of force incident to the state’s monopoly on violence—cases, that is, in which rational, efficient, dispassionate expressions of state power happen to exceed the legal threshold of “excessive force” or “cruel and unusual punishment” or “discriminatory purpose.”¹⁵ These cases, tragic as they are, are instances of ordinary legal error, lying at the “sometimes ‘hazy border between excessive and acceptable force.’ ”¹⁶

The class of cases to which I refer involve what the drafters of Section 1983 called “outrages”—extraordinary excess. Violence that is not merely disproportionate, but unbridled, not merely painful, but severe, degrading, abusive, extended, grotesque, gratuitous, orgiastic, carnivalesque, barbaric, and all too often fatal.¹⁷ Less commonly observed is the fact that this form of violence is also very often deeply intimate, even erotic in the sense in which George Battaille understood erotic excess (a “transgression of borders [that] sets us in intimacy with the other”), though unlike the loving transgressions he describes, the “sovereignty” exercised in these cases is not in the service of “friendship, truth, compassion, and the welcoming of differences.”¹⁸ Difference is instead annihilated, and suffering is inflicted proximately, often by hand, far from conventional bureaucratic forms of action at a distance. Extraordinary excess is not merely intimate, but in some cases sadistic—perpetrated, that is, by officers who appear to take pleasure in the suffering they inflict.¹⁹ And while this violence can be brazenly public, a spectacle,²⁰ it is very often privately inflicted, sometimes withheld from public scrutiny by conspiracies of silence and deceit.²¹

What explains this form of state violence in Section 1983 cases, many of which are landmarks in the development of the law and procedure of civil rights enforcement? If James Monroe must be arrested on false suspicion of murder, why must his wife be made to stand naked in the living room during the arrest, his six children beaten?²² If Adolph Lyons has not perfectly complied with an officer’s request to raise his hands during a traffic stop, if he complains after his hands are slammed back to his head, why must he be placed in a chokehold until he passes out, “spitting up blood and dirt,” having “urinated and defecated” on himself when he regains consciousness?²³ If Larry Hope must be disciplined for falling asleep and arriving late to forced labor on a chain gang in a prison, why must he be handcuffed to a hitching post shirtless in the sun for seven hours?²⁴ Why must he be deprived of bathroom breaks? And why would a corrections officer carry water out to the hitching post only to taunt Mr. Hope by giving it to a prison dog and then spilling it on the ground before Mr. Hope in the sweltering heat? If Keith Hudson legally deserved punishment for getting into an altercation with prison guards, why, after he’d been restrained in handcuffs and shackles, was he repeatedly punched in the mouth, eyes, chest, and stomach while a guard held him down?²⁵ Why did the supervisor on duty not only watch the beating, but tell the officers involved with acidic irony “not to have too much fun”?²⁶ If Javid Iqbal must be detained on immigration charges in a maximum security facility on completely false suspicion of connections to the September 11th attacks, why did the officers kick him “ ‘in the stomach, punch[] him in the face, and drag[] him across’ his cell without justification”?²⁷ Why must he be subjected to “serial strip and body-cavity searches when he posed no safety risk to himself or others”?²⁸ Why must he be denied the right to pray and subjected to religious slurs?

Why are there so many replications of these cases?²⁹ And why are these outrages so often color-coded?³⁰

In some of the canonical cases, the Supreme Court has upheld a right to relief for the underlying constitutional violations. The experience of Mr. Monroe and his family underlies the Court’s landmark 1961 decision reviving Section 1983 as a federal cause of action from its Jim Crow dormancy. The Court upheld the use of Section 1983 for constitutional violations by state actors even when the plaintiff would presumably have a cause of action under state common law for at least some of the relevant harm.³¹ Larry Hope’s suffering underlies the Court’s determination that, for purposes of overcoming the affirmative defense of qualified immunity, some conduct is so obviously unlawful that there need not be a near-exact precedent on the books alerting the officer to this fact.³² Any reasonable officer would know the conduct was unlawful.

In other cases, however, the Court has denied relief and denied even the right to seek federal judicial review. These are the circumstances in Lyons, the 1983 case requiring that standing be separately established for injunctive relief (even when the plaintiff has standing for money damages) and requiring that the plaintiff show substantial risk of recurrence of harm.³³ The holding is part of the reason why deadly police chokeholds, used in the absence of proportionate physical threat to officers, remain so prevalent.³⁴ In the absence of standing to seek an injunction to ensure that police-use-of-force policies comply with the Fourth Amendment, use-of-force policies are difficult to challenge.³⁵ In Iqbal, the Court dismissed the complaint as implausible under Rule 12(b)(6).³⁶ Even after Inspector General reports confirmed Iqbal’s assertions that high level government officials were well aware of the conditions in the prison and did nothing about it, the Court dismissed suits by similarly mistreated detainees on the ground that there is no Bivens cause of action (the federal officer analogue to Section 1983) for such harm, and that there was no cognizable cause of action for a Section 1985 conspiracy.³⁷

But put to one side, for the moment, whether legal redress is or ought to be available for such conduct. And put to one side as well the simmering debate on the affirmative defense of qualified immunity when money damages are sought in civil rights cases,³⁸ the near universal indemnification of officers who are ultimately held liable,³⁹ and the uncertain fate of the Bivens cause of action for constitutional torts committed by federal officers.⁴⁰ Put aside what it means to act “under color” of law for the purposes of Section 1983 liability⁴¹ and what must be shown to obtain an injunction to reform police departments and prisons.⁴² Suspend all of these vitally important, hotly contested doctrinal questions. Pause to take stock of the extraordinary, dehumanizing level of violence inflicted at the hand of the sovereign, the repetition compulsion, the fetishization of excess. Consider how and why Trent Taylor was forced to spend four days in a cell

covered, nearly floor to ceiling, “ ‘in massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “packed inside the water faucet.” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. . . . Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.⁴³

What explains this level of mistreatment? Not just the wretched, “shockingly unsanitary” conditions (conditions, note, in which the corrections officers themselves must work as they move and supervise prisoners), but the taunting by the officer who, upon placing Taylor in the first cell, informed him that he was “going to have a long weekend,” and another officer who, upon placing Taylor in the second cell, said he “hoped Taylor would f***ing freeze.”⁴⁴

What accounts for this humiliation and cruelty (and the apparent pleasure taken in inflicting it) on the part of officers of the state?

No meaningful conversation about jurisdiction, appropriate forms of action, or remedies can begin without grappling with the nature and sources of these constitutional violations and the mutual dehumanization they cause. Even if there are necessary tragedies attendant to the state’s monopoly on violence, what explains this level of violent excess, depravity, and depredation?

The very first thing to say is that the harm cannot be understood if it is not accurately described, if the depth of the violence involved is diminished, obscured, or antiseptically elided.⁴⁵ The majority opinion in Lyons is an exercise in elision, rendering Mr. Lyons’ request for injunctive relief to prevent another such incident irrational, even paranoid, rather than a reasonable response to policies and practices regarding use of force that disproportionately affect Black drivers in Los Angeles.⁴⁶ The chokehold, the majority concedes, “caus[ed] damage to his larynx” and “render[ed] him unconscious,” and the majority mentions the evidence of more than a dozen deaths resulting from the use of chokeholds.⁴⁷ But it does so only in passing in a paragraph concerning whether the case was mooted by alterations in the city’s policies.⁴⁸

It is instead in Justice Marshall’s dissent that one learns that when Lyons “regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt,” and that he had “urinated and defecated” on himself as a result of the chokehold.⁴⁹ We learn from Justice Marshall that Lyons was not charged with any crime (let alone a crime such as resisting arrest that might suggest the chokehold was a proportionate response). He was simply “issued a traffic citation [for a burnt out taillight] and released.”⁵⁰ And it is the dissent which cites record evidence that Black people made up seventy-five percent of deaths from chokeholds in a city in which they were just nine percent of the population.⁵¹ The majority simply ignored the racial elements of the case, as well as the statistical evidence showing that three-fourths of all police/citizen “altercations” involved use of a chokehold—data suggestive of a policy or practice of resorting to deadly force when officers are met with simple dissent.⁵² This colorblindness obscures record evidence of racially discriminatory policing.

Similarly, in Monroe, it is only from Justice Frankfurter’s dissent that we learn that Mr. Monroe had six children, all of whom were rousted along with his wife, that Mr. Monroe was struck several times by Detective Pape “with his flashlight, calling him [n-word] and ‘black boy,’ [and] . . . that other officers hit and kicked several of the children and pushed them to the floor.”⁵³ Here too, the element of race and its conjunction with unprovoked violence would be all but invisible absent the dissent’s more faithful recitation of the allegations of the complaint. So too the fact and nature of the violence visited upon Mr. Monroe’s children.

Nor can the nature or source of the harm be understood if excesses are dismissed as the unfortunate result of individual rogue officers. To be sure, not every constitutional violation springs from the orders of supervisors or from official policy, practice, or custom, and comparatively few in number involve extraordinary excess. Neither is it the case, however, that every violation springs from circumstantial contingencies, isolated error, or the pathological deviance of individual officers.⁵⁴ Whether or not one believes that supervisors and government agencies should be held legally accountable for the conduct of their officers (either on a respondeat superior theory or some more exacting standard such as the one developed from Monell v. Dep’t of Social Services and its progeny⁵⁵), bad apples cannot explain all cases.⁵⁶ Indeed, the theory is contradicted by cases such as Taylor and Iqbal in which supervisors are plainly involved, as well as a vast body of research in social psychology and organizational behavior concerning institutional failure and crimes of wrongful obedience.⁵⁷ Ordinary people of good will, the research shows, are capable of inflicting pain and suffering on others, including extraordinary levels of pain and suffering, when working in settings where harmful conduct is expected, rationalized, or ignored.⁵⁸

In the following pages I examine “outrages” in civil rights cases and the nature of such extraordinary excess. The first level of work is mainly negative, identifying in Part I what this excess is unlike—how distinctive it is even according to social and political theories that are explicitly concerned with the ways in which people performing seemingly ordinary bureaucratic tasks contribute to monstrous deeds and systems of subordination. Part II turns to theories that focus on direct participation in extraordinary, dehumanizing excess and subordination to explore what kind of legal officer is capable of inflicting such severe suffering, under what circumstances, what purposes and forms of power might be served, and what kind of legal subject is produced by inflicting suffering in this way. I concentrate on Franz Kafka’s short story The Penal Colony, which imagines an extravagantly painful form of capital punishment, Patricia Williams’s essay on the irrational fears that animate racial prejudice and police brutality, and studies on the nature of “intimate partner” violence.

Reading across these interdisciplinary sources on extravagant violence I suggest that outrages involve the interaction of a number of elements: the fantasy of finding/generating legal certainty in the imposition of bodily suffering, the enactment of social and political domination (including controlling color and gender lines), the role of terror and physical abuse in relationships defined by dependency, and ambivalence in officers’ embodiment of sovereignty (libidinally charged oscillation between self-restraint and extravagant excess on the part of officers of the state who are themselves both bound by and always potentially above the law).⁵⁹ In the final section, Part III, I turn from these theories of extraordinary violence to civil rights enforcement doctrine. I argue that extraordinary, racialized violence resulting from corruption of office was well known to the drafters of Section 1983, that the statute was specifically designed to remedy what the Reconstruction-era drafters called “outrages,” and that the modern Court’s use of federalism principles to limit the Section 1983 cause of action and remedies directly contradicts the text of the statute and this unmistakable legislative purpose.

The literature on the drafting of Section 1983 is extensive, but it concentrates mainly on whether the language “under color” of law was designed to restrict the cause of action to circumstances in which the federal right-holder would not have a parallel claim under state law. This approach is understandable in light of Justice Frankfurter’s emphasis on this reading of the statute in his dissenting opinion in Monroe v. Pape and the debate his opinion fueled.⁶⁰ What has not received adequate attention beyond conventional references to the role of Klan violence in the legislation of Section 1983 is the specific connection between the persistence of “outrages,” government officer complicity in such violence, and the failure of state courts and law enforcement to address the corruption of state legal systems arising from resistance to Reconstruction.⁶¹

Both Section 1983 scholarship and empirical analyses of officer brutality also tend to lump modern cases involving extraordinary violence together with all cases on excessive force and forms of prison violence that lack a legitimate penological purpose.⁶² The effect is to assimilate outrages to a broader category of state violence. However instructive this is regarding the overall problem of modern police/carceral violence, it tends to obscure the distinctive phenomenon of outrages, the unique harm they cause, and their role in prompting Congress to establish Section 1983 in the first place.

I. FALSE STARTS IN THEORIZING EXTRAORDINARY VIOLENCE

Modern social and political thought has been preoccupied with the irrational and dehumanizing effects of institutionalized violence. But it is notable that among the most authoritative accounts—Arendt’s theory of the banality of evil, Foucault’s theory of disciplinary power, and Kafka’s theory of perishing “before the law”—outrages are largely irrelevant.

A. The “Banality of Evil”

Section 1983 cases involving extraordinary violence do not seem to result from what Arendt famously described as the “banality of evil,” a theory that has been used as a framework for understanding how relatively ordinary people become instruments in the perpetration of monstrous deeds. Observing the trial of Adolph Eichmann for his role in organizing the transportation of Jewish people and others to Nazi death camps, Arendt was struck by the extent to which Eichmann was neither “perverted” nor “sadistic” but rather terrifyingly “normal.”⁶³ He apparently acted mainly to advance his bureaucratic position.

The deeds were monstrous, but the doer—at least the very effective one now on trial—was quite ordinary, commonplace, and neither demonic nor monstrous. . . . Despite all the efforts of the prosecution, everyone could see that this man was not a ‘monster,’ but it was difficult indeed not to suspect that he was a clown.⁶⁴

Arendt uses the term “clown” because Eichmann was unable to avoid self-contradiction, lying, and cliché in matters of morality. His “inability to speak,” Arendt emphasizes, “was closely connected with an inability to think; that is, to think from the standpoint of somebody else.”⁶⁵ Eichmann knew (“of course”) that “he had played a role in the extermination of the Jews,” that without performing this bureaucratic function Jewish people “would not have been delivered to the butcher.”⁶⁶ But he scoffed at the idea that this established his personal culpability (“What is there to admit?” he asked when pressed on the matter⁶⁷).

Chillingly, he “remembered the turning points in his own career” more accurately than “the turning points in the story of Jewish extermination, or, as a matter of fact, [] the turning points in history.”⁶⁸ The ideological machinery of fascism, Arendt contends, efficiently mobilized the petty self-serving idealism of bureaucrats like Eichmann, drawing them into the enthusiastic erection and maintenance of the machinery of death. Inability “to think” and dislocation of moral responsibility in the very seat of identity combined to produce a monstrous and yet banal form of evil.⁶⁹

Eichmann’s role in the machinery of death of the Holocaust was, however abhorrent, principally administrative in nature—distant from the scenes of murder. He orchestrated a process of stripping Jews of their property and rights to prepare them for expulsion from their communities to death camps. Arendt’s analysis reminds us that acts of violence have bureaucratic predicates in which many people are complicit, but the distinction between the acts and their bureaucratic predicates matters to a full understanding of extraordinary violence. Many people who are capable of performing roles at a distance from violence are utterly incapable of the violence itself. Eichmann, for example, testified that if he was shown “a gaping wound, I can’t possibly look at it. I am that type of person.”⁷⁰ Indeed, this is one of the most important insights of Arendt’s theory of the banality of evil—that people who recoil from direct acts of violence are instrumental to the administrative architecture which ultimately produces and sustains it. In the Section 1983 cases involving extraordinary violence, by contrast, the named officers are not acting at a distance—their hands are saturated with blood. Even when high level officers are also named, as in Iqbal and Abassi, the core allegation is that the policies and practices immediately responsible for the harm (not intermediate bureaucratic steps) flow from the ink of their pens and associated decisions.

B. “Disciplinary Power” and the “Spectacle of the Scaffold”

The exceptional violence in Section 1983 cases does not flow from “disciplinary power” either. In Discipline and Punish, Michel Foucault describes ways in which surveillance, ranking, and the arrangement of space in modern carceral institutions produces efficient compliance, or “docility”:

[T]he systems of punishment are . . . situated in a certain “political economy” of the body: even if they do not make use of violent or bloody punishment, even when they use “lenient” methods involving confinement or correction, it is always the body that is at issue—the body and its forces, their utility and their docility, their distribution and their submission.⁷¹

A panopticon, the famous prison design of Jeremy Bentham from which Foucault theorizes, produces docility among inmates mainly by creating uncertainty about whether and when one is being surveilled. Indeed, uncertainty about surveillance prompts inmates to monitor themselves, obviating the need for actual force to be deployed by prison guards. This was its supposedly modern genius as compared to the use of dungeons, torture, and spectacles of death on the scaffold. It achieves this by “induc[ing] in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power,” such that

the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary; that this architectural apparatus should be a machine for creating and sustaining a power relation independent of the person who exercises it; in short, that the inmates should be caught up in a power situation of which they are themselves the bearers.⁷²

Foucault connects the panopticon and other systems oriented toward the production of docility (in schools, factories, hospitals, military barracks) to “progressive forms of training,” measurement, ranking, and other “techniques for assuring the ordering of human multiplicities” in a “disciplinary society.”⁷³ Disciplinary power thus develops alongside mass society and the industrial revolution to ensure social order and efficient labor.⁷⁴ In “every society, the body was in the grip of very strict powers, which imposed on it constraints, prohibitions[,] or obligations.”⁷⁵

In all of these accounts, what makes disciplinary power distinctive is precisely the absence or minimal role of violence, its “subtle coercion” through the “efficiency of movements[,] . . . an uninterrupted, constant coercion, supervising the processes of activity,” which the subject eventually internalizes.⁷⁶ The extraordinary violence in Section 1983 cases is quite different. It involves direct, physical, unmediated infliction of pain. It is therefore closer to what Foucault calls “sovereign power.”⁷⁷ Throughout Discipline and Punish and in other works Foucault is careful to distinguish disciplinary and sovereign power. Sovereign power is what we conventionally associate with the state’s monopoly on violence—state action in the standard sense of armed officers acting in an official capacity. It is comparatively inefficient and discontinuous, requiring “sumptuous expenditure[s],” relative to the operation of disciplinary power.⁷⁸

Precisely because it is so inefficient, Foucault argues that sovereign power historically relied on spectacles of excess to produce compliance. These spectacles were designed to display the “unlimited power of the sovereign,”⁷⁹ “an emphatic affirmation of . . . its intrinsic superiority . . . not simply that of right, but . . . the physical strength of the sovereign bearing down upon” deviant subjects to “revenge[] its authority.”⁸⁰ As David Owens has shown, recorded and publicly disseminated images of anti-Black police violence fit the “spectacle of the scaffold” which Foucault associates with early modern European expressions of sovereign power.⁸¹ There is, however, no public scaffold when extraordinary violence is inflicted behind prison walls and in unrecorded or unpublished encounters with police officers, a problem to which I return in Part II.

C. Being “Before the Law”

In Franz Kafka’s famous parable, Before the Law,⁸² the protagonist is denied access to law by a low-ranking but “mighty” gatekeeper who says that he is but one of many gatekeepers, “each one mightier than the one before.”⁸³ The gatekeeper shares that “[e]ven the sight of the third is more than I can bear,” so terrible are his powers.⁸⁴ The gatekeeper is thus an example of sovereign power, a power apparently so awesome in its capacity for violence that no one dares resist it. Significantly, for our purposes, however, the gatekeeper’s capacity for violence is so overwhelming that it need not be exercised upon the body. The gatekeeper also informs the protagonist that the gate is for him alone, not others, suggesting that the gate is not public. The protagonist decides to wait for permission and the gatekeeper “gives him a stool and allows him to sit down beside the door.”⁸⁵ But the wait is unending, and ultimately fatal. The gatekeeper stands impassively as the protagonist gradually withers “before the law” and dies. In the meantime, the gatekeeper takes all the protagonist’s money, “so that you don’t think there’s something you’ve omitted to do.”⁸⁶

There are many readings of the parable as a critique of the terrible, dehumanizing force of law,⁸⁷ but the protagonist’s suffering, albeit unto death, is not caused by any act of violence on the part of the gatekeeper. His suffering is shaped instead by the possibility of violence, implied in the gatekeeper’s admonition about his awesome power and the even greater powers of other gatekeepers beyond the portal before which he stands. The moral outrage the story evokes lies in the gatekeeper’s startling indifference. It is suggestive of the thoughtless, cold, bureaucratic unseating of empathy with which Arendt is concerned, but not the extravagant infliction of physical suffering we see in Section 1983 cases.

II. THE BODY AND BEING ABOVE THE LAW

If targets of extraordinary violence are not “before the law,” subjected to disciplinary power, or victims of the “banality of evil” and its action at a distance, what explains their victimization?

A. In the Penal Colony

Another famous story by Franz Kafka takes us closer to understanding the phenomenon. In the Penal Colony describes an “apparatus” created by a former colonial commandant to suppress disorder in the colony.⁸⁸ The apparatus is a machine that “carr[ies] out . . . the sentence” by inscribing its text on the body of the condemned person with needles.⁸⁹ The condemned person is strapped to a “bed” above which hangs a “harrow”—a metal frame holding many needles.⁹⁰ The machine, called the “engraver,” moves the bed and the harrow, “vibrat[ing] both sideways and up and down, in tiny, very rapid movements” each of which is “very carefully calibrated,” inscribing the sentence in thrusts and cuts of gradually increasing depth.⁹¹ During the process, which takes twelve hours, the condemned person slowly experiences the sentence “on his body” as the thrusts and cuts deepen until he bleeds to death.⁹² The sentence is “put to him physically.”⁹³

Extraordinary excess is a defining feature of every phase of this punishment. The legal “process” that leads to punishment is itself excessively deferential to officer discretion. A condemned person receives no trial, no defense, and is not informed of the sentence before it is inscribed on their body. Guilt is decided by those who control the apparatus, and because there is no opportunity to present a defense, guilt “is always beyond doubt.”⁹⁴ A foreign observer is informed that in the process of inscription there are elaborate embellishments by the needles upon the body of the condemned: “many[,] many ornaments surround[ing] the script proper.”⁹⁵ The apparatus not only writes the punishment with increasingly deep incisions in the body of the condemned, it uses “the rest of the body” to surround the “actual text” with extravagant “decoration.”⁹⁶ The pain is equally extravagant. About halfway through the execution of the sentence, the traveler is told, the pain is so excruciating that the condemned person eventually stops screaming and falls silent as he “begins to decipher the script . . . with his wounds.”⁹⁷ The officer who operates the apparatus views this as the climactic moment when justice is realized, describing it as a “transfiguration” in which even “[t]he very dimmest of them begins to understand.”⁹⁸ Their faces take on a look “that might seduce one to take their place” in the apparatus, so transcendent is the truth they experience.⁹⁹

In many ways, In the Penal Colony represents the apotheosis of the spectacle of the scaffold. The officer, overcome with nostalgia, reports that during the reign of the former commandant, executions were public events with massive public attendance (“the whole valley was packed . . . everyone came to spectate . . . they all knew: justice is being enacted”) and the apparatus not only inscribed the sentence, its needles dripped with a painful, corrosive acid:

It was impossible to find room for all those who wanted to view the proceedings from close . . . . How we watched the transfiguration in the tormented faces [of the condemned], how we held our cheeks in the glow of this arduously achieved and already passing justice! I tell you, comrade, those were times!”¹⁰⁰

This is a genuine public spectacle, designed to demonstrate the awesome power of sovereignty, to secure compliance with law by making the administration of justice not only summary (no trial, no defense, no notice of the sentence) but immediate (operating directly upon the body of the condemned, enacting the sentence upon the body using the exquisitely painful machinery of the apparatus), absolute (every sentence is a death sentence), and yet also temporally and substantively extended (extending beyond the “actual text” of the sentence to lavish “decorative” embellishments, and beyond mere execution to excruciatingly slow torture ending in death), all resting on the sadistic, metaphysically sublime premise that the true nature of justice appears and is “understood” in and through the body during the inscription.¹⁰¹

Kafka implies that the apparatus is not, in fact, essential to maintain order in the colony even though the officer claims that under the former commandant who built it, administration of the entire colony was “seamlessly efficient.”¹⁰² We learn early in the story that the new commandant, much to the chagrin of the officer, regards the apparatus as barbaric and unnecessary, resists expenditure for its upkeep, has the support of the people, and has invited the traveler to observe the execution in order to use the traveler’s views to ban its use permanently. Indeed, much of the dramatic tension in the story rests not just on the design and use of the apparatus for what becomes its final execution, but on whether and how the traveler will announce his moral opposition to it to the new commandant (the traveler is, we gradually learn, steadfastly “opposed” to the entire process: “[t]he injustice of the procedure and the inhumanity of the execution were incontestable”¹⁰³). When the officer fails to persuade the traveler of the value of the apparatus, the officer spares the condemned man and instead inserts himself into the apparatus. The apparatus impales him almost immediately because it has not been possible to properly maintain it and he dies within minutes, leaving “no trace” that he has experienced the “promised transfiguration.”¹⁰⁴

The violence of the apparatus is of course in important ways quite different from extraordinary violence in Section 1983 cases. It is, to begin with, imaginary, and also a relic of public executions, whereas the violence in Section 1983 cases is all too real, and there is often no audience. The apparatus also mediates the relationship between the body of the condemned and the officer. The officer, at one point, has to probe deep into the apparatus to attempt a repair, but it is neither a cyborg nor simply an instrument of torture wielded by the officer. Once the instructions of the “sentence” are inserted into the apparatus and the condemned person is strapped onto the bed, the machine makes the inscription automatically. Finally, many Section 1983 cases involve deaths at the hands of officers of the state, but the cases generally do not involve executions following judgments imposing capital punishment as a sentence.¹⁰⁵ Instead, when deadly force is used, officers are usually in the process of mundane traffic stops, executing warrants and making arrests, or engaged in prison administration away from death row. And of course, many Section 1983 cases involving extraordinary violence and suffering do not result in death.

The point of connection between the story and Section 1983 cases lies instead in its account of the officer’s attachment to the apparatus as an instrument of excess (even to private scenes of excess after public attendance has been banned), and to the seductive power of the summary administration of justice. The officer who maintains the apparatus doesn’t just appreciate it; he is obsessively attached to it. By the time the traveler comes to see it, the officer is “its sole defender.”¹⁰⁶ While he barely notices the condemned man, the officer is distraught that the new commandant has withheld funds for maintenance of the apparatus, he laments that there are no longer proper replacement parts, and he is particularly distressed that a more humane execution procedure is being developed.¹⁰⁷ He refers to the diagrams that typeset the apparatus as “the most precious things I have.”¹⁰⁸ He also desperately seeks to draw the traveler into a conspiracy to undermine the new commandant and his plan to decommission the apparatus. The completeness of his obsession with the machine is revealed by his fatal devotion to it—once he realizes that it will no longer be used and that his efforts to persuade the traveler of its value are in vain, the officer makes his own execution the machine’s last, a process that results in the machine falling apart. His devotion is, one might say, not merely complete but fatally excessive.

Underneath devotion to the apparatus is attachment to the power to inflict bodily pain in the administration of justice—an attachment grounded in the idea that infliction of bodily pain serves as a lexical index of justice, that pain is an instrument of justice, the way to see justice done. This idea animates the officer’s sadism and the erotic charge traveling with the physical imposition of legal judgment—literally, the inscription of sovereign power upon the body of the subject. Similar attachments appear to motivate the officers in Section 1983 cases who take pleasure in the suffering they inflict (e.g., the officer who hoped Taylor would “f***ing freeze” in the “frigidly cold cell . . . equipped with only a clogged drain in the floor to dispose of bodily wastes”¹⁰⁹), as well as chokehold cases like Lyons in which the body of the officer is (must be) personally, immediately, and intimately engaged with the exercise of sovereign power, inscribing it upon the body of the supposedly resistant subject.

Attachment is not just to embodying the instrument of sovereign power, but to legal certainty—inscribing the law on the subject’s body. A legal order that seeks perfect compliance (along with the erotic charge of potentially ‘complete’ repression) is a form of excess in relation to human fallibility. In Kafka’s story, there is a cathartic element in the dyadic economy of a suffering/redeemed/dead “perpetrator” and suffering/relieved victims and bystanders. Indeterminacy, the terror of it, is executed, purged from the community, along with the condemned. Thus, even as other more restrained forms of policing and punishment emerge in the penal colony, the imagined moral clarity and instrumental utility of the apparatus, and the attendant desire to preserve it and all the accoutrement of its scaffolding, to speak its language of certainty, to inscribe it automatically upon the bodies of deviant subjects, remains. And this remainder—the longing it prompts for revival of such a system—haunts new, ostensibly more humane and fallible regimes. This remainder is also latent in the “thin blue line” discourse of law and order insofar as it rationalizes police and carceral violence—what “law and order” promises (the absence it mobilizes politically and in the psyche) is the certainty of determinate exercises of sovereign power and the compliance such certainty ostensibly guarantees.¹¹⁰ Embellished, gratuitous, and grotesque bodily infliction of pain reflects this longing for compliance and legal certainty. Bodies must be fixed, transfixed, in compliant recognition of sovereign power.

The officer in the story is so committed to this work that he appears to have lost all sense of connection to the dignity and humanity of the subjects of the colony he participates in governing, not least of which the condemned man. His almost exclusive concern is with maintaining and caring for the apparatus. Indeed, he exhibits paranoia about the new commandant’s plans and is unable to cope with a future in which those plans will unfold.¹¹¹ Even at lower levels of intensity, sociologies of policing suggest that perspective and judgment are warped when officers succumb to an embattled, binary, “blue line” mindset in which the people one serves become a foreign, abstract out-group.¹¹² Ordinary emotional responses become grotesquely inverted—instead of revulsion, pleasure is taken in inflicting pain; instead of empathy and a sense of duty toward subjects, there is antipathy or brutally cold indifference; instead of care, there is the belief that suffering is not just deserved but in the best interests of the subject’s legal “transfiguration.”¹¹³

The officer’s obsession in Kafka’s story is not just nostalgically motivated, it is an expression of “imperialist nostalgia”—seething resentment at the new regime and its lenience is expressed in inverted form as intimate attachment to the apparatus believed to be central to the authority of the ancien regime over the colony.¹¹⁴ John Zilcosky admonishes that it is a mistake to separate the erotic element of the apparatus’s sadistic excess from its value as an instrument of colonial oppression. “The problem with [some] postcolonial readings” of In the Penal Colony, he insists, “is that they fail to address the promise of sado-masochistic pleasure that is so central to the story’s effect. Just as the earlier psychoanalytical interpretations repressed politics, these political readings repress desire.”¹¹⁵ The officer’s obsessive attachment (being willing indeed, not just to die for the apparatus, but with it, in it) fuses the erotic and politically instrumental in the form of a death wish executed by fatal penetration (as the apparatus malfunctions, one of the needles plunges through the officer’s skull). Obsessive attachment is in this way represented as an erotically charged and (at least until the officer’s death) a politically useful byproduct of a system that scaffolded spectacles of sadistic excess and permitted officers to impose summary justice.

In any system in which extravagant sovereign power has been replaced with a new regime of limits, especially externally imposed limits, resentment can run deep. In the American context, one might, for instance, read resistance to Reconstruction enforcement in the nineteenth century and resistance to the Warren Court’s revival of Section 1983 along these lines—new, decidedly unwelcome federal (and federal judicial) interventions into matters of traditional state and local executive branch concern in the administration of criminal justice.¹¹⁶

B. “Spirit-Murder”

Kafka leaves the role of racial subordination in spectacular violence implied in In the Penal Colony. Early on in the story the traveler remarks that the officer’s uniform is “much too heavy for the tropics.”¹¹⁷ The officer replies that they wear them nonetheless because they “signify home, and we don’t want to lose touch with home.”¹¹⁸ In this sentence, in another about the fact that both the traveler and officer speak French while the condemned man and attending soldier do not,¹¹⁹ and in the officer’s reference to the traveler’s moralistic “European perspective” on capital punishment,¹²⁰ a geography of colonial and racial exploitation is made clear.

In one of her most famous essays on law and policing in America, Patricia Williams is explicit, directly addressing the role of extraordinary violence in racial subordination.¹²¹ She examines the failed criminal prosecution of a white police officer who shot and killed a sixty-seven-year-old, arthritic, Black woman in her Bronx apartment.¹²² The officers were there to evict Eleanor Bumpurs and she resisted.¹²³ The writ of possession authorizing the eviction was issued via a default judgment, which means that Mrs. Bumpurs never received a hearing in court before the officers showed up to evict her. Indeed, it appears that she was not properly notified of the case and there were “serious doubt[s]” about the validity of the landlord’s grounds for eviction.¹²⁴ This summary process without notice may have played a role in her confusion and resistance.

According to the Police Commissioner, six officers were in the apartment, all armed, two wielding large plastic shields, another a “restraining hook.”¹²⁵ Mrs. Bumpurs, wielding a knife “bent” in the confrontation by one of the plastic shields, escaped from the hook and was shot by the officer farthest from her with a shotgun.¹²⁶ The blast “removed half of her hand, so that, according to the Bronx District Attorney’s Office, ‘it was anatomically impossible for her to hold the knife.’ ” The officer nevertheless “pumped his gun and shot again,” this time killing her.¹²⁷

She asks what “animus . . . inspired such fear, and such impatient contempt in a police officer that the presence of six other heavily armed men could not allay”:

Why was the sight of a knife-wielding woman so fearfully offensive to a shotgun-wielding policeman that he felt that blowing her to pieces was the only recourse, the only way to preserve his physical integrity? What offensive spirit of his past experience raised her presence to the level of a physical menace beyond real dimensions? What spirit of prejudgment and of prejudice provided him with such a powerful hallucinogen?¹²⁸

The essay goes on to explore the ways in which racism authorizes not just violence, but extraordinarily excessive anti-Black violence. She considers examples in which both white police officers and white citizens were exonerated in the press and in court for such violence. Echoing Arendt’s critique of Eichmann’s inability to think and the penal colony officer’s perverse certainty that torture produces transfiguration, Williams ultimately concludes that white supremacy creates distorted mental states (“formalized distortions of thought” that “produce[] social structures centered around fear and hate”) in which “in the minds of whites[,] . . . blacks become large, threatening, powerful, ubiquitous, and supernatural.”¹²⁹ The Black body must not only be subdued, its far larger spectral presence which operates “beyond real dimensions” must be annihilated.

The connection between extravagant violence and “embellished fear” in this process of annihilation comes into sharpest relief when Williams recites “a news story from [her] fragmentary grammar school recollections of the 1960’s,” according to which

a white man acting out of racial motives killed a black man who was working for some civil rights organization or cause. The man was stabbed thirty-nine times, a number which prompted a radio commentator to observe that the point was not just the murder, but something beyond. What indeed was the point, if not murder? I wondered what it was that would not die, which could not be killed by the fourth, fifth, or even tenth knife blow; what sort of thing that would not die with the body but lived on in the mind of the murderer.¹³⁰

Williams’s answer is that white supremacy demands the death of the “spirit”—that part of our being which lies within and yet extends beyond the body, the part of ourselves which “is beyond the control of pure physical will and resides in the sanctuary of those around us.”¹³¹ “Spirit-murder” must be exceptionally excessive to meet the seemingly bottomless fear and rage that animate prejudice. It requires a level of violence capable of producing degradation, of destroying the specter of Black power which lurks (however counter-factually) as a “predatory” threat in the aggressor’s mind.¹³²

Williams situates spirit-murder in the long, painful legacies of spectacular violence visited upon Black people. She interweaves examples of modern racism in New York, including her own experiences as a Black woman, with the civil rights era. And like Kafka, who opens the story of the penal colony after the old commandant who designed the apparatus has been replaced, Williams represents contemporary spectacles of racial violence as haunting remainders of an “unwanted past,” an ancien regime that will not end:

Failure to resolve the dilemma of racial violence merely displaces its power. The legacy of killing finds its way into cultural expectations, archetypes, and ‘isms.’ The echoes of both dead and deadly others acquire a hallucinatory quality; their voices speak of an unwanted past, but also reflect for us images of the future. Today’s world condemns those voices as superstitious and paranoid. Neglected, they speak from the shadows of such inattention, in garbles and growls, in the tongues of the damned and the insane.¹³³

The historian Allen Trelease formally locates this “unwanted past” in slavery and resistance to emancipation. He richly details the excessive, “pathological fear . . . not at all justified by the actual danger” felt by whites who defended the institution.¹³⁴ Both before and after emancipation “whites were apt to react with disproportionate severity” to Black people.¹³⁵ But emancipation and the “advent” of Reconstruction produced “enhanced anxiety[,] . . . intolerance[,] and violence as never before.”¹³⁶ Violent repression, Trelease emphasizes, was directed less toward ensuring that Black labor remained a “docile” labor force (“in fact [racial terror] did much more to drive off labor and disrupt economic life”), than toward “keeping blacks within their proper social bounds,” especially preventing voting, officeholding, and crossing social color lines.¹³⁷

If Negroes had been feared even when they were subjected to the control of masters and prewar slave codes, they were infinitely more dangerous now that these controls were lifted. . . . A former Mississippi Klansman justified violence as the only way of protecting white families against what he conceived to be “the threatened and rising arrogance of the negroes.” Cruelty, seemingly beyond the gravity of the provocation, he said, was “justified by the fact that every little insolence, if left unnoticed, would be bragged about by its perpetrator and fellow observers . . . . The news would spread with great rapidity, and there was no telling where it would end. . . .” By this reasoning white men could and did commit the most brutal forms of aggression, convinced all the while that they were acting defensively.¹³⁸

As early as 1865, the year the Civil War ended,

Carl Schurz reported . . . [that] “the maiming and killing of colored men seems to be looked upon by many as one of those venial offenses which must be forgiven to the outraged feelings of a wronged and robbed people.” . . . Certainly whipping and corporal punishment were regarded as the white man’s right and duty, emancipation or no emancipation; organized regulators or vigilantes took up this task . . . and the Klan further institutionalized the practice,” adding other forms of torture and death to the list of “atrocities.”¹³⁹

Page after page of the 1871 U.S. Senate Report and Testimony on the Alleged Outrages in the Southern States, which supported the passage of Section 1983, confirms the extraordinary level of violence that followed. Even a cursory review of the reported outrages in Alamance County, North Carolina between 1868 and 1870, indicates the distinctive role of extraordinary violence.

[A] negro man by the name of Outlaw . . . was taken from his house . . . about one o’clock at night, by a band of from eighty to a hundred men, and hung upon an elm tree, not very far from the court-house door. . . . The newspapers have said that he was guilty of having shot at a band of Ku-Klux that passed through the town some time previous; but that was not true.

Caswell Holt, (colored,) taken from his house in the night, was whipped until blood was streaming from his back; he was then made to bend down, while one of the parties tortured him by rubbing a rough stick up and down his back.

Joseph Harvey, (colored,) taken by fifteen or twenty in disguise, carried about three quarters of a mile from his house, dragged over fences, rocks, through briars, and about one hundred and fifty lashes laid upon his bare back.

Nathan Trollinger, (colored,) taken from his house by men in disguise, severely whipped, and afterwards made to mutilate his own private parts with his pocket knife.

Sally Hall and her two daughters thrown out of their house and whipped, and one of them made to exhibit her person, while the fiends proceeded to inflict blows upon her private parts.

John Bass, (colored,) “potterized.”¹⁴⁰

The Klan also targeted whites who supported Black people and Reconstruction:

Alonzo B. Corliss, a northern man, who was teaching [in] a colored school . . . was dragged from his bed by twelve or fifteen disguised men, amid the shrieks and cries of his distressed wife, carried a little distance into the woods and severely whipped, the hair and whiskers shaven from one side of his head and face, his head and face cut and disfigured in a most cruel manner, after which he was painted black and left in this condition.¹⁴¹

The “ultimate purpose” was to “overthrow the reconstruction acts down South.”¹⁴² In some places “a majority of men” in the Klan had served in the Confederate Army.¹⁴³ Having lost the war, they were now refighting with the tools of racial terror.

Not only did white supremacist “aggression [take] every conceivable form,” it was seldom punished; “it simply was not a punishable offense in the eyes of many whites to attack or even kill a Negro.”¹⁴⁴ In many regions of the South, “civil authorities, like the general white public, were either in sympathy . . . or intimidated.”¹⁴⁵ Lynchings were regularly conducted in front of courthouses to reinforce the message that the Klan controlled and was above the law.¹⁴⁶ It was also common for law enforcement officers, courts, the press, and the public to blame Reconstruction “radicalism and negroism, which in the south are one and the same thing,” rather than the white perpetrators of violence.¹⁴⁷ This was true even when law officers and judges became targets of Klan violence for their support of Reconstruction or their efforts to restrain the Klan.¹⁴⁸ Local Klan members perjured themselves as witnesses and violated their oaths as jurors in order to protect each other from prosecution.¹⁴⁹ Others who gave testimony were attacked.¹⁵⁰ In Gullford County, North Carolina, a lawyer who was asked whether the laws were administered “properly and thoroughly” answered that

where parties, for instance, are concerned in outrages committed by the order of which we have been speaking, my observation is that there are no convictions. I know that people have been whipped and scourged, and some have been killed; but the guilty have never been brought to punishment. Of course, the courts are the proper tribunals to award the punishment, but they have never been able to do it in any of those cases. . . . An alibi is proved in nearly every case . . . without any difficulty.¹⁵¹

Lawyers who did agree to become involved in the prosecution of Klan members were notified in writing that “they would be visited with punishment” unless they “ceased.”¹⁵² Some prosecutors not only abandoned their cases but felt “compelled” to move to other states.¹⁵³ Other officers collaborated with the Klan. The mayor of a town in Alamanee County, North Carolina testified that the “sheriff was connected with [the Klan], and every deputy . . . . [T]hey always hang around the courts to get on the jury . . . . [Y]ou cannot convict them.”¹⁵⁴ Impunity in the infliction of extraordinary violence went hand in hand with the complicity of state law enforcement and judicial officers, and functional immunity from liability in the rare cases brought against officers due to judicial bias, witness intimidation, and jury tampering.¹⁵⁵

When Southern resistance prevailed and the retreat from Reconstruction became national policy later in the 1870s, anti-Black violence continued. Lynchings morphed from nighttime affairs into full blown spectacles—mass events in broad daylight, publicized in newsprint and on the radio.¹⁵⁶ Experts on the history of lynching emphasize that even though “Black men and women were much more likely to become victims of personal assault, murder, or rape than lynching, and . . . withstood all sorts of injuries and insults on a daily basis[,] . . . lynching held a singular psychological force.”¹⁵⁷ It “came to stand as the primary representation of racial injustice and oppression as a whole,” assuming “this tremendous symbolic power precisely because it was extraordinary and, by its very nature, public and visually sensational.”¹⁵⁸

I have elsewhere written about the complicity of law enforcement and other legal professionals in lynching, including spectacle lynchings.¹⁵⁹ Others have documented in vivid detail how crime statistics and policing became instruments of Jim Crow segregation as unreconstructed whites seized control of the levers of sovereign power within and well beyond the South.¹⁶⁰ Inscription of the color line on Black bodies was charged not only with racial anxieties but also the erotic, most obviously in the exceptionally violent retaliation against Black men for real and perceived interactions with white women, in the frequency with which anti-Black violence was both actually and symbolically castrating, and in both the sexualization and sexual assault of Black women. The erotic is also present in the proximity, intimacy and raw physical effort required to administer whippings and other common forms of white supremacist torture, as well as in the gruesome acquisition of body parts and photographs of naked, mutilated black bodies as “souvenirs” of spectacle lynchings.¹⁶¹ A gendered expression of sovereign power is present in the invasion of Mrs. Bumpurs’s apartment as well—the officers’ penetration without notice or consent of Mrs. Bumpurs’s home, and her bent-edged, arthritic resistance met by their wildly disproportionate, ejaculatory, fatal, violence.

C. Disappointed Dominion

“[A]ny account of violence that cannot explain the strike, the blow, the act of sexual violence (including rape), or that fails to understand the way violence can work in the intimate dyad or the face-to-face encounter, fails descriptively, and analytically, to clarify what violence is.”¹⁶² A responsible theory of violence, including extravagant violence, must therefore grapple with rape and other forms of intimate partner violence.¹⁶³ While this kind of violence may initially seem quite far afield from cases involving extraordinary violence in policing and prison administration, feminist and queer theory have long identified connections between patriarchal power, the “cage of sex . . . in which all other [cages] are enclosed,”¹⁶⁴ “the family as a male-dominant institution[,] and male-dominant sexuality as the deus ex machina of male power across society.”¹⁶⁵ Gendered and sexual violence share with the extraordinary violence of policing and prison administration not only elements of excess, but also the erotic charge of intimately inflicted physical harm (patriarchal power in society and politics is, on this view, “eroticized power”¹⁶⁶) and, significantly, the targeting of the body as a principal object and site of subjection, control, and domination.¹⁶⁷

With respect to excess, women and gender non-conforming people are more likely to suffer extreme violence. They are more likely to be murdered and more likely to suffer physical injury that requires medical treatment from intimate partner sexual and physical assaults than heterosexual men.¹⁶⁸ Although near fatal and fatal injuries are relatively rare as compared to scratches, bruises, and welts in intimate partner abuse, serious injuries include lacerations from knives, broken bones, dislocated joints, head and spinal cord injuries, burns, broken teeth, and brain injuries from being knocked unconscious.¹⁶⁹ Intimate partner violence is pervasive in the United States and other western countries, an “epidemic” affecting millions annually despite hard won reforms since the 1970s that have replaced a permissive legal and cultural regime (in which the “corrective” battery of domestic dependents was lawful and considered a private “family matter”) with criminal prohibitions, networks of women’s shelters, and other support.¹⁷⁰

Qualitative research emphasizes that intimate partner violence is usually repeated, that “almost all” people targeted “suffer[] some physical violence as a part of the abuse, and while this was often described as ‘not the worst part’ of the abuse in comparison to less visible aspects, it invoke[s] a great deal of fear.”¹⁷¹ Even though it is common for abuse to become “routine” in intimate partner violence, “incidents of physical violence remain a shock, often experienced as coming ‘out of the blue.’ Interviewees describe both physical shock[]and a feeling of betrayal of the expectation[s] of trust and care in intimate relationships . . . as the hardest to come to terms with.”¹⁷² This kind of abuse is not “something you ‘get used to,’ ” despite the adoption of “skills of precaution and management to try and maintain personal security for themselves and their children.”¹⁷³ As one interviewee in a qualitative study reported, her partner “would just blow . . . . [Y]ou stand there and you can’t believe, you cannot believe that this is happening.”¹⁷⁴

Extraordinary excess lies not just in the gendered nature of such violence—the fact that greater, more harmful, and sexualized violence is visited upon women and gender non-conforming persons by men—but in the underlying breach of trust. Intimate relationships in which violence should be absent, governed by care, devotion, affection, and affirmation of personal autonomy, are perverted into degrading, abusive sites of domination—haunted by foundational acts of physical violence and the ever-looming threat of escalation. Intimate knowledge of a partner’s desires, fears, and vulnerabilities is itself abused—physically, sexually, emotionally, and psychologically. Children are often made hostages and objects of violent escalation to amplify fear and power.

There are competing theoretical accounts of how and on precisely what terms masculine “dominance, potentiated and centrally entitled and expressed sexually” in intimate partner violence translates to social and political domination.¹⁷⁵ But no one doubts the singular terror and harm this violence creates in intimate relationships. There is also broad consensus that intimate partner violence is “fundamentally a product of gender inequality[,] . . . a powerful tool in enforcing and reinforcing gender hierarchies and gender inequalities.”¹⁷⁶ Revealingly, what often sets such violence in motion is “the perception (by men) that women are trying to act ‘equal,’ that they have lost sight of their ‘proper place.’ ”¹⁷⁷ In this respect, the parallels to racialized violence are unmistakable:

[J]ust as Ku Klux Klan violence arose during the Reconstruction period in the South to enforce racial boundaries threatened by the emancipation of millions . . . to remind African Americans of “their place”—so, too, gendered violence can be understood as a tactic for reminding women of their place.¹⁷⁸

It occurs in intimate relations precisely because “the need to enforce between-group boundaries is greatest when there is a high degree of intimacy between group members.”¹⁷⁹

The body is so often the target because it represents, synecdochally, all the capacities of subordinate subjects to move, press, and rise beyond “their place.” Once we see the body—its movement, capacity, and crucially, its placement—as a site of control in social hierarchy, deeper connections between gender, race, sexuality, and class unfold. Abuse committed in intimate relations might be read as a distorted private, compensatory expression of both real and (mis)perceived public affronts to the “masculinity” of aggressors (for example, discrimination, economic exploitation, political disenfranchisement). Abuse against people believed to be lower status provides for the assertion of dominion in forms that are unavailable, lost, or threatened in society, work, and politics.¹⁸⁰ Rather than patriarchy radiating outward from the sexual politics of the family, on this account dominion both retreats and amplifies inward, displacing public slights, disappointments, and defeats (which, again, may be real or merely perceived) onto the comparatively safer targets of vulnerable domestic dependents and intimate relations in the private sphere.

There are vast differences between the domestic scene, on the one hand, and police and prison encounters, on the other. But what they share, at least when victims are unarmed or restrained, is the relation of dependence, intimate bodily proximity, status hierarchy, and overweening power. This may help explain why even restrained or otherwise non-threatening, unarmed arrestees and prisoners—people whose lives are literally in the hands of officers—nevertheless become objects of extraordinary violence.¹⁸¹ The problem is not, or at least not always, “embellished fear” or paranoia on the part of the officer, but rather acute awareness of the target’s relative helplessness and vulnerability,¹⁸² the target’s assumed culpability (social and moral, if not legal),¹⁸³ the reception of the target’s assertion of their own humanity, interests, or rights as audacious defiance of the officer’s status and authority,¹⁸⁴ and the opportunity this presents to exercise dominion believed to have been diminished or lost in other ways (through the officer’s subordination to the hierarchy of command, dealing respectfully with other citizens, suspects, and prisoners who have been openly defiant of the officer’s authority, or other social encounters).¹⁸⁵ Put differently, extraordinary excess can arise from displaced aggression, just as it can arise from exaggerated, misplaced fear.¹⁸⁶ And both can be personally and politically useful in keeping others in their place.

As importantly, aggression can be more than a form of compensatory displacement, more than a proportionate reaction to the perceived disappointment of dominion in other relations. It can also be an erotically charged, transgressive embodiment of sovereign power itself—raw, unchecked desire for dominion. To be sovereign is both to be the source of the law and, at least in democratic societies, to be bound by law—bound not just by training, and the law itself, but by oath. Every officer, and certainly those armed with the implements of sovereign power, inhabits and must mediate this contradiction. Having invested energy upholding compliance with law, oneself and for others, sometimes at great personal peril, extraordinary violence holds the seductive appeal of being, however transiently, above the law, of experiencing this singularly ecstatic form of sovereignty (the rapture of “sole and despotic dominion”) in and through the body of another, seizing and inscribing upon it the dictates of one’s will. The perverse pleasure expressed by some officers in the infliction of suffering and the violent fury with which all but total submission is greeted may derive from this source, the desire to embody unbound sovereign power.

III. THE BODY POLITIC

The foregoing analysis draws into relief why Section 1983 liability for extraordinary violence matters. Cases involving licentiousness among those who hold the state’s monopoly on violence are among the most important for the exercise of judicial review in a free society. Little is more destructive of constitutional faith in a republican form of government, where sovereignty ultimately rests with the people, than unconstitutional violence committed “under color” of law by those who wield and embody powers delegated by the people.¹⁸⁷ Self-restraint regarding lawfully delegated authority legitimates possession of the implements of sovereign power. Cases involving extraordinary violence represent the antithesis of self-restraint—not mere errant, or debatable uses of force, but flagrant disregard for the constraints of the Constitution on state action.

The Reconstruction Congress knew this. Whatever else may be said about ambiguities in the text and legislative history of Section 1983, regarding, for example, the availability and scope of municipal liability, or the power to reach private actors, one thing is beyond doubt: The statute operates in derogation of state sovereignty to enforce powers conferred by Section 1 of the Fourteenth Amendment in order to rectify and prevent “outrages” by state officers.¹⁸⁸ Although legislative debates on the Ku Klux Klan Act of 1871 are relatively sparse and opaque on some interpretive issues, “the debates contain extended discussion of conditions in the South, the breakdown of law and order, the acquiescence of Southern authorities, Klan terrorism against Blacks and republicans, and the consequent need for federal action.”¹⁸⁹ The civil cause of action created by the statute addresses the role of state actors in these “outrages.” The operative language (“deprivation of any [federal] rights, privileges, or immunities” by persons acting “under color of” state law, “custom, or usage”¹⁹⁰) sweeps beyond outrages, but officer-involved outrages were foundational, animating wrongs for which the statute provides civil liability. Suits seeking relief for the infliction of such exceptional harm thus warrant particular judicial solicitude.

The text of Section 1983 as enacted by Congress is unequivocal that the new federal cause of action operates in derogation of state sovereignty.

[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . .¹⁹¹

In view of the text, legislative purpose, and historical context, the modern Court’s reliance on federalism as a ground norm to cabin Section 1983 claims (in cases involving standing to prevent recurrence of harm,¹⁹² officer immunity in damages suits,¹⁹³ municipal liability,¹⁹⁴ abstention,¹⁹⁵ class actions,¹⁹⁶ summary judgment,¹⁹⁷ the standard for equitable relief,¹⁹⁸ the interaction of habeas and 1983 damages claims,¹⁹⁹ and the substantive Fourth Amendment doctrine of reasonable force²⁰⁰) is the jurisprudential equivalent of lost cause ideology. It relies on the very interpretive tools used to end Reconstruction, return to “home rule,” and place the anti-Black violence of Jim Crow segregation beyond the reach of federal courts.²⁰¹

Two attributes of lost cause historical consciousness are particularly relevant. The first is the idea that the Civil War and Reconstruction did not alter antebellum understandings of state sovereignty—that the exertions of federal power necessary to save the Union did not diminish the sovereignty of the states. On this view, return to “home rule,” which the Court actively supported in the 1870s and 1880s by, among other things, striking down other sections of the Ku Klux Klan Act,²⁰² confirmed that antebellum federalism principles survived the Civil War. The fact that return to home rule was instrumental to Jim Crow segregation is frequently elided by the modern Court when it invokes federalism principles. Justice Frankfurter’s dissent in Monroe is emblematic, insisting that

[t]he jurisdiction which Article III of the Constitution conferred on the national judiciary reflected the assumption that the state courts, not the federal courts, would remain the primary guardians of that fundamental security of person and property which the long evolution of the common law had secured to one individual as against other individuals. The Fourteenth Amendment did not alter this basic aspect of our federalism.²⁰³

The effect is to limit the powers conferred by the Reconstruction Amendments to remedy civil rights violations by relying on structural constitutional principles that betray the letter and spirit of these amendments, principles affirmed in precedents that blinked at and emboldened extralegal, violent resistance to Reconstruction. The Civil War and Reconstruction did alter basic aspects of “our federalism,” expanding federal court jurisdiction and with it access to the expertise, “experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.”²⁰⁴ But instead of solicitude, civil rights litigants all too often find federal courthouses inhospitable.

The second attribute of lost cause ideology is the view that the Reconstruction Congress overreached by legislating rights and remedies on the premise that states could not be trusted to redress federal constitutional violations.²⁰⁵ Section 1983 is itself excessive on this view, a remainder of Reconstruction and the exceptionally violent resistance that defined it. The Reconstruction Congress legislated no sunset clause in Section 1983. But that has not stopped the modern Court from treating the cause of action like an anachronism, an unwelcome remainder of a state of exception—one of the few statutory enforcement tools that was not struck down by the Court in its retreat from Reconstruction. Within this interpretive horizon, embellished fears about excessive liability and excessive interference with officer discretion and local control become predominant concerns, rather than state sanctioned violence and defiance of federal law. The modern Court has in this way developed a jurisprudence of excess in Section 1983 cases, just not one concerned with the state officer outrages against which the Reconstruction Congress legislated.

This is most evident in qualified immunity doctrine, where concern with excessive liability and judicial interference with executive officer discretion dwarfs concern with whether officers have complied with the Constitution and other laws.²⁰⁶ But it can be seen in other doctrines,²⁰⁷ and it resonates with Justice Frankfurter’s view in Monroe that the statute was intended to provide a cause of action only when state law or custom authorizes unconstitutional acts—that is, in the presumptively rare situation in which a state openly defies federal law and state common law provides no redress.

The modern Court has functionally endorsed Frankfurter’s dissent not by revisiting the interpretation of “under color” of law and overturning Monroe, but rather by expanding the affirmative defense of qualified immunity in officer suits, elevating the causation threshold for municipal liability, and limiting access to injunctive relief that could prevent recurring violations. Justice Frankfurter may have lost the battle of statutory interpretation in Monroe, but the modern Court has ensured that he won the war on the use of federalism to limit Section 1983. The result is expansive discretion in officer decisions about the use of force and inconsistency even in cases involving extraordinary violence. Tellingly, the Court has applied the Hope v. Pelzer exception to qualified immunity in only one case since 2002 when Hope was decided, it has emphasized that Hope’s exception for obvious unconstitutionality applies only in “rare” cases, and Hope has featured most prominently in opinions dissenting from the grant of qualified immunity.²⁰⁸ Thus, the Court has been relatively passive with a doctrine well-suited to address extraordinary violence. In the context of prison violence, the Eighth Amendment standard of liability for the use of force is explicitly tied to “malicious” and “sadistic” violence,²⁰⁹ but the test requires evidence of the officer’s subjective state of mind, and it allows officers to avoid liability for extraordinary violence skirting the line of malicious and sadistic harm. Even when the line is crossed, prisoners face far greater procedural obstacles than victims of police violence raising Fourth Amendment claims.

These obstacles exist because the only area in which Congress has expressly endorsed the Court’s subordination of Section 1983’s remedial purposes to federalism is in state prison conditions cases.²¹⁰ Passed during the most expansive period of mass incarceration²¹¹ when prison litigation reached one-fifth of the total number of civil cases filed in federal courts,²¹² the Prison Litigation Reform Act of 1995 (“PLRA”) includes an administrative exhaustion doctrine requiring strict compliance with state grievance procedures, an unwaivable filing fee even for prisoners who meet the in forma pauperis standard, a physical injury rule for money damage claims, and a right-remedy nexus requirement that sharply circumscribes federal equity power.²¹³ The effects on prison litigation have been palpable.²¹⁴ Immediately after the statute passed, decades-old continuing decrees in prison cases were vacated.²¹⁵

In Brown v. Plata,²¹⁶ decided fifteen years after the statute took effect, the persistence of breathtakingly cruel, unremedied unconstitutional conditions in California state prisons prompted the Court to uphold federal equity power notwithstanding the strict limits of the PLRA. The case is a parable of the Court’s jurisprudence of excess. Prison conditions in Plata shock the conscience, rivaling those which existed in state prisons under the so-called “hands-off” doctrine prior to Cooper v. Pate when federal courts simply refused to entertain prison conditions claims on federalism grounds.²¹⁷ As a result of their woefully inadequate mental health care system, California’s prisons had a suicide rate “80% higher than . . . for prison populations” nationally.²¹⁸ Data showed that “72.1% of suicides [in California prisons] involved ‘some measure of inadequate assessment, treatment, or intervention.’ ”²¹⁹ Shocking, systemic deficiencies in physical health care (inadequate facilities, doctors, nurses, and delays of months for acute conditions and “extreme departures from the standard of care”) caused “a preventable or possibly preventable death . . . once every five to six days.”²²⁰ Beyond preventable deaths, prisoners “suffering from severe but not life-threatening conditions[] experienced prolonged illness and unnecessary pain.”²²¹ The record is an intricately detailed catalogue of outrageous, arbitrary suffering.

However, to justify upholding the release of tens of thousands of prisoners notwithstanding the PLRA’s strict right-remedy nexus,²²² the majority could not just rely on the extensive record of suffering. The decree ordered release of healthy prisoners as well as unwell prisoners whose mistreatment did not violate the Eighth Amendment’s guarantee of minimally adequate medical care under Estelle v. Gamble.²²³ To uphold such sweeping relief, the majority adopted a prophylactic theory of the substantive right. The majority reasoned that the health care system was so dysfunctional that there was a “substantial risk” of prisoners suffering a violation of their rights under Estelle.²²⁴ Releasing prisoners (and moving some to local jails) would increase the state’s capacity to adequately address the health needs of those who remained.

Justice Scalia’s dissent sharply criticized this end run around the statute and its federalism principles. He insisted that Estelle claims exist only when individuals who already have serious medical conditions do not receive treatment because of the state’s deliberate indifference.²²⁵ Thus, no injunction to release prisoners merely at risk of an Estelle violation could be described as “narrowly drawn, . . . extend[ing] no further than necessary to correct the violation” or the “least intrusive means.”²²⁶ Moreover, Rule 23 provides no right to aggregate resolution of such claims given the particularity of each prisoner’s medical condition and their inadequate treatment.²²⁷ Decisions about how to rectify the health care problems in the prison system must remain with state prison officials. The lower court’s prison release order displacing local administrative discretion was “perhaps the most radical injunction issued by a court in our Nation’s history,” a “structural injunction” that deems an “entire” state-run prison “system . . . unconstitutional because it may produce constitutional violations.”²²⁸

Two years earlier, in Haywood v. Drown, the Court overturned parallel state legislative efforts in New York to eliminate Section 1983 money damage claims against corrections officers filed in state court.²²⁹ On a legislative record asserting that such claims were predominantly frivolous, the state stripped its courts of jurisdiction for both Section 1983 and state civil rights claims seeking money damages.²³⁰ Prisoners could still sue for damages, but only against the state itself, not the officer responsible for the harm, only in a separate court, not the state’s courts of general jurisdiction, and only subject to a range of procedural and remedial limitations that do not apply to the Section 1983 cause of action.²³¹ The Supreme Court struck down the law on the ground that it violated the Supremacy Clause by denying federal right holders access to a congressionally legislated cause of action, forum, and relief to enforce constitutional rights.²³² Like Plata, the case suggests a commitment on the part of the Roberts Court to preserve jurisdiction and remedial power notwithstanding the limitations Congress imposed on prison condition litigation in the PLRA. However, both Plata and Haywood were decided by bare 5–4 majorities, and as in Plata, the dissent in Haywood rested on federalism principles—specifically, the autonomy of states to control state court dockets by refusing jurisdiction of unwelcome federal claims.

The crucial swing vote in both cases was provided by Justice Kennedy. That fragile majority is sure to be tested in a reconfigured Roberts Court more committed to the dissents’ federalism principles. Notice the effects on prison conditions litigation if Plata and Haywood were to be reversed: Federal courts would be virtually closed to claims for injunctive relief under the PLRA and modern standing doctrine; strict officer immunity and municipal liability doctrines already render both state and federal courts inhospitable to Section 1983 money damage claims; and the dissent’s view in Haywood would permit state courts to simply refuse jurisdiction of Section 1983 prisoner claims. Prisoners would be left to state law claims in state court.

This outcome would be consistent with a central premise, arguably the central premise of federalism-based limitations on Section 1983 claims: that leaving federal constitutional right holders to state positive or common law is adequate to protect their federal constitutional rights. This was the structural constitutional core of Frankfurter’s dissent in Monroe. The conventional form of the argument is that when a state officer defends a state law claim (for example, a state common law claim for negligence rather than a federal claim for excessive use of force), the federal constitutional right will arise if the officer asserts that the action was sanctioned by state law.²³³ The defense can be rebutted by showing that what the officer did was, in view of the plaintiff’s federal constitutional rights, ultra vires. Federal law is then adjudicated, just not via a cause of action bottomed on the federal right. In theory, all that is lost is the federal right holder’s option to file in federal court.²³⁴

The cost of losing access to federal district court as the court of first instance matters if state courts are less hospitable to the claims of federal right holders. This was all too familiar during Reconstruction and Jim Crow segregation. More recently, state courts have faced extraordinary budget crises, forcing some local courts into a form of fiscal parasitism upon the very communities they are supposed to serve.²³⁵ And as Haywood and the cases on which it relies show, state legislative efforts to restrict Section 1983 litigation in state courts are not uncommon.

Notably, however, Section 1983 does not create exclusive federal jurisdiction—it does not rest on the assumption that state courts are categorically untrustworthy. Concurrent state court jurisdiction decentralizes judgments about which forum is appropriate, allowing the federal right holder to choose. The plaintiff, on advice of counsel, has the right to assess the specific circumstantial risks of hostility in state court, the costs and benefits of filing in federal court, and any other doctrinal and strategic considerations that may inform choice of forum.²³⁶ Using a broad structural constitutional principle such as federalism to displace congressionally endorsed, decentralized decision-making by the federal right holder with the Court’s arm chair conclusions about the fidelity and solicitude of state courts is precisely the kind of “Mr. Fix-It-Mentality” Justice Scalia rightly criticized as imperious judicial policymaking in a civil liberties case.²³⁷ It also flatly contradicts the Court’s near complete deference to Congress’s remedy-creating power in other settings. Most prominently, the Court has deferred to any evidence that Congress has established an alternative remedial scheme when the question is whether the Court should recognize an implied right of action to enforce constitutional rights violated by federal officers,²³⁸ an implied right of action to enforce statutory rights,²³⁹ or a right of action grounded in equity under Ex parte Young.²⁴⁰ If judicial restraint demands deference to the decision of Congress to create remedies in these settings, deference is owed to the forum-selection authority Congress granted federal right holders seeking relief under Section 1983. Conspicuously, the Court’s Section 1983 jurisprudence runs headlong in the opposite direction.

Also lost in enforcing federal civil rights through state law claims is the nexus between the federal right, the cause of action, and the remedy Section 1983 creates. The nexus between injury, right, cause of action, and remedy might seem like an abstraction. After all, what should it matter if a plaintiff receives $100,000 in damages on a state tort claim or $100,000 on a federal Fourth Amendment claim under Section 1983; so too a state injunction reaching the same conduct as a federal injunction? The difficulty is that state law and constitutional harms are not necessarily equivalent. There may be no state cause of action that overlaps with certain constitutional injuries. Even when there is, the elements of a state law cause of action, state procedure, and state remedies doctrine may defeat or limit recovery for certain violations of federal law. Ultimately, state law is not designed to implement federal interests and enforce federal rights.²⁴¹

State law may even be hostile to federal rights.²⁴² Causes of action designed to address harm inflicted by private persons do not reflect the anti-democratic harm arising from the violation of federal rights by an officer of the state acting “under color of law” with the badges, implements, and armory of the state’s monopoly on violence.²⁴³ Section 1983 claims, by contrast, name the abuse of sovereign authority directly and force the officer or municipal government to answer for it. If the essence of corrective justice is that “liability rectifies the injustice inflicted by one person on another . . . simultaneously taking away the defendant’s excess and making good the plaintiff’s deficiency[,]”²⁴⁴ then the right, cause of action, and remedy should correlatively address the injury and injustice of abuse of sovereign power.

The point is not that corrective justice requires perfect mirroring between the cause of action and the injury, but rather that the Court owes deference to the congressional judgment to make injury, right, and remedy mutually correlative rather than contingent on state common law where constitutional rights are concerned. Whatever wisdom and policy justified the common law approach to enforcing federal law in officer suits during the antebellum period,²⁴⁵ Reconstruction revealed the deadly consequences of its potential for abuse (in the form of “outrages”) and the Reconstruction Amendments empowered Congress to provide a less circuitous remedial path. The presumption in favor of state common law causes of action is precisely what Section 1983 rejects by bottoming a cause of action on the federal right itself. Lastly, it is no answer to say that the Supreme Court can exercise appellate jurisdiction to correct underenforcement of federal civil rights when it decides so few appeals from state courts.

These arguments have little resonance within the interpretive horizon of the modern Court’s federalism revival. Suit in state court under state law is presumptively superior as measured against the potential “excesses” of federal judicial intervention. Structural constitutional attachments have in this way come to dominate substantive constitutional rights, legislative text, and federal court remedial power. Unlike Kafka’s penal colony, however, where the apparatus responsible for the extraordinary excesses of the ancien regime was being dismantled and the officer’s perverse attachment to it was reassuringly anachronistic, here, now it is the second Reconstruction that is being dismantled, our body politic still transfigured by the inscriptions of sovereign power’s outrageous excess.

98 S. Cal. L. Rev. 367

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Norman W. Spaulding*

* Sweitzer Professor of Law, Stanford Law School. I am grateful for excellent assistance with research provided by Owen Foulkes, Anna Kuritzkes, Joelle Miller, and Molly Shapiro.

Property and Prejudice

April 2025April 2025Fatma Marouf* & Vanessa Casado Pérez†

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food security, and prevention of absentee ownership. But these laws completely fail to achieve their asserted goals. The poor means-end fit, combined with the availability of far less restrictive alternatives, leaves the new laws vulnerable to legal challenges under the Equal Protection Clause and the Fair Housing Act. But century-old Supreme Court precedents and gaps in legal doctrine may still make it difficult for such challenges to prevail. Preemption arguments based on immigration law, the foreign affairs power, and federal laws governing foreign investment, as well as Dormant Commerce Clause arguments, also involve legal hurdles. This Article analyzes these legal arguments, evaluates potential obstacles, and charts possible paths forward. Regardless of the legal viability of these laws, this Article cautions that they will perpetuate prejudice, open the door to a new form of segregation, and limit who can achieve the American Dream.

INTRODUCTION

Sun Guangxin, a Chinese real estate tycoon, owns 140,000 acres of land in Val Verde County, Texas, near an Air Force base close to the border.¹ He spent approximately $110 million on real estate purchases, paying above-market prices for plots that were not on the market.² But Mr. Sun did not buy this land himself. He used a Texan intermediary, who bought the land and transferred it to Mr. Sun’s company, GH America Energy LLC, a subsidiary of the China-based Guanghui Energy Company.³ The plan was to establish a wind farm and produce renewable electricity for the Texas grid.⁴

Environmentalists opposed the wind farm, but their concerns did not gain traction until they framed the wind farm as a threat to national security due to its location.⁵ That got the attention of Senator Ted Cruz and state legislators, who began campaigning against the wind farm.⁶ This campaign became a catalyst for several bills in Texas that restricted foreign ownership of land.⁷ The bill that received the most traction prohibited real property ownership by any businesses headquartered in China, Iran, Russia, and North Korea or owned or controlled by citizens of those countries, as well as by individual citizens and government actors from those countries.⁸

Texas is not alone. In the past year, bills have been proposed in over thirty states that would restrict foreign ownership of land, real estate, and natural resources.⁹ To date, a dozen of them have been enacted into law.¹⁰ Many of these laws single out specific countries perceived to be hostile, including, but not limited to, China, Iran, Russia, and North Korea. Some bills name countries directly, while others reference various federal designations, such as federal lists of “foreign adversaries” and “countries of particular concern.”¹¹ A few bills are a bit more subtle, restricting ownership by “state-controlled enterprises,” which are most common in China,¹² or citing statutes that address only Chinese military companies.¹³

These laws fan the flames of rising anti-Chinese sentiment. Over 80% of the U.S. population currently holds an unfavorable view of China.¹⁴ Fear of China’s economic and military power,¹⁵ disapproval of China’s foreign policies and human rights abuses,¹⁶ media reports blaming China for the COVID-19 pandemic,¹⁷ and angst over espionage,¹⁸ as well as explicit or implicit biases,¹⁹ fuel these views. Of course, most Chinese investors seeking to buy property in the United States are not acting as pawns of the Chinese Communist Party. Instead, they may be families trying to move their money beyond the reach of the Chinese government, investing to ensure that their children get a good education, or hoping to establish themselves in the United States.

Despite the new context, these laws conjure up one of the darkest periods of U.S. immigration history, involving Chinese Exclusion²⁰ and an Asiatic Barred Zone that swept across a continent.²¹ The history of alien land laws is intertwined with racial exclusions from U.S. citizenship and the creation of hierarchies based on race, national origin, and alienage.²² As California’s Attorney General said in 1913 when he championed the state’s alien land law aimed at limiting the presence of Japanese immigrants: “[T]hey will not come in large numbers and long abide with us if they may not acquire land.”²³ A century ago, the U.S. Supreme Court upheld California and Washington’s alien land laws, and it has never revisited the issue.²⁴ These lingering precedents from an unabashedly racist era are now being relied on by states eager to stretch the limits of traditional state powers like regulating the transmission of property and to influence the federal domains of immigration, national security, and foreign affairs.

This new wave of alien land laws differs from prior waves in important respects.²⁵ First, the naming of specific countries and use of certain federal lists reflects a new form of national security creep. This national security slant also appears in the heightened restrictions placed on property located within a certain distance of critical infrastructure, such as military bases and weather stations. While some states have found ten miles to be a safe distance, others require fifty miles, suggesting an arbitrariness to the restrictions imposed. The new laws also seek to ferret out foreign control in more complex corporate structures than ever before. And they punish violators with harsher criminal penalties than in the past.

While the laws purport to protect national security and food security, and to prevent absentee landownership, they are poorly designed to achieve these aims. Foreign ownership of U.S. real property is minimal. Only 2.9% of privately held agricultural land²⁶ and 1.8% of residential real estate²⁷ is foreign-owned. Additionally, the major foreign owners of agricultural land are not from the countries targeted by the new state laws. While China is second only to Canada on the list of foreign countries whose citizens are buying U.S. residential properties,²⁸ their share of US land is very small. Foreigners own 31% of the land in the U.S., but Chinese investors represent only 1% of all foreign-owned land.²⁹

But even assuming there are compelling government interests at stake, the means used to achieve them are ineffective. These laws will not solve the problem of foreign interests and corporate consolidation driving the real estate and agricultural markets, as sophisticated players can easily circumvent the restrictions. For example, because most of the laws do not restrict leases, a foreign-owned business could just lease land from local landowners. The restrictions on landownership will also not increase national security in an era of cyber warfare, drones, and spy balloons. Furthermore, some of these alien land laws target only ownership and not leases. A tenant occupying a property near a military base can be as dangerous as the owner of that land, if not more. This new wave of alien land laws also fail to prevent absentee landownership because they generally exempt noncitizens residing in other U.S. states, along with all U.S. citizens and permanent residents regardless of their location. Less restrictive alternatives to some of the proposed or enacted laws could include simply limiting the amount of land that foreigners may own, requiring owners to reside or work on the land to avoid absentee ownership, or creating exceptions for residences if the main concerns are agriculture and food.

Given the poor means-end fit, the true purpose of the laws appears to be symbolic. These laws may simply be a way for politicians to capitalize on the xenophobic sentiments of their electoral base. Sadly, their nefarious social effects will extend well beyond the real estate market.³⁰ Like racist property restrictions of the past, the new laws will subordinate minorities. Excluding people from home ownership keeps them out of communities, deters immigration, impedes intergenerational transfers of wealth, and obstructs personal flourishing. Even people who are not directly affected by the new laws will suffer due to the chilling effect on the real estate market. Sellers will be hesitant, at best, to engage in transactions with anyone from a targeted country.

This Article examines potential legal challenges to the new wave of alien land laws. Part I provides historical background about prior waves of alien land laws. Part II describes the distinctive characteristics of the current wave. Part III explores possible statutory and constitutional arguments for challenging the new laws. First, Part III explores whether these laws violate the Fair Housing Act, which was enacted as part of the Civil Rights Act of 1968 and prohibits discrimination in housing based on race and national origin.³¹ Second, Part III examines whether the new laws violate the Equal Protection Clause, highlighting the underdeveloped nature of equal protection jurisprudence on alienage and national origin classifications. This Section also stresses the lack of means-end fit, which we argue should result in the laws being struck down under either strict scrutiny or rational basis review.³² Next, this Article analyzes whether the new state laws are preempted by federal immigration law, the federal foreign affairs power, or the federal regulatory framework involving the Committee on Foreign Investment in the United States (“CFIUS”).³³ Finally, this Article analyzes whether the new laws violate the Dormant Commerce Clause with respect to both domestic and foreign commerce.

Legal challenges to the new alien land laws will not be easy. A federal district court has already refused to enjoin Florida’s law, which not only restricts individuals and companies domiciled in certain countries but also singles out those domiciled in China for especially harsh treatment.³⁴ The legal questions raised by alien land laws will likely reverberate in other important contexts as well. States like Texas and Florida are increasingly looking for ways to use well-established state powers, including police and property powers, to challenge the federal government’s authority over international borders and immigration.³⁵ Alien land laws represent one, but by no means the only, way for states to do this. If no restrictions are placed on alien land laws by courts or the federal government, states could use them to create new forms of segregation, excluding immigrants from their territories by denying them a place to live. In short, these laws once again instrumentalize property for racial prejudice.

I. A BRIEF HISTORY OF ALIEN LAND LAWS

Alien land laws in the United States date back to colonial times and to the influence of the English feudal system.³⁶ English feudal laws were designed to secure allegiance to the Crown and initially prohibited aliens from purchasing land; then, the laws prohibited them from inheriting it.³⁷ England eventually abolished those restrictions by statute in 1870.³⁸ But alien land laws continued in the United States, sanctioned by common law.³⁹ Some early land laws were incorporated into state constitutions in explicitly racial terms. For example, in 1859, Oregon amended its constitution to prevent any “Chinaman” from owning property in the state and granted only “white foreigners” the same property rights as citizens, a provision that was not repealed for over one hundred years.⁴⁰

Scholars have previously categorized alien land laws into several waves.⁴¹ During the first wave, which extended from approximately 1880 to 1900, eleven states restricted alien ownership of real property in response to a depressed agricultural economy and concerns over absentee landowners.⁴² Congress also passed the Territorial Land Act of 1887, which “forbade extensive alien landholding in the organized territories, except by immigrant farmers who had applied for citizenship.”⁴³ The federal law aimed to prevent large, foreign-owned ranches from jeopardizing statehood for the territories.

The second wave of alien land laws were passed in the 1920s, as a result of resentment toward Japanese immigrants engaged in farming in California, Oregon, and Washington.⁴⁴ California’s law “was enacted and . . . enforced solely as a discriminatory law directed against the Japanese.”⁴⁵ California’s Attorney General at the time, Ulysses S. Webb, was transparent about its purpose, framing the central issue as “race undesirability.”⁴⁶ The California law carried criminal penalties and resulted in successful prosecutions;⁴⁷ it also led to severe financial losses with over 30,000 Japanese farmers abandoning “nearly 500,000 acres of California’s richest crop lands.”⁴⁸ Beyond these penalties, the law had a severe psychological impact, demoralizing and subordinating Japanese Americans.⁴⁹

Alien land laws passed at this time often excluded Japanese and other Asians by precluding noncitizens “ineligible for citizenship” from owning land.⁵⁰ As Keith Aoki observed, “ ‘aliens ineligible to citizenship’ was a disingenuous euphemism designed to disguise the fact that the targets of such laws were [Japanese].”⁵¹ Laws dating back to 1790 and 1870 excluded Asians from naturalizing.⁵² In 1922, the U.S. Supreme Court confirmed that a Japanese person could not be naturalized because he was not “white.”⁵³ The following year, the Court reached the same conclusion regarding someone from India.⁵⁴

That same year—1923—the U.S. Supreme Court upheld Washington’s and California’s alien land laws.⁵⁵ Both cases involved U.S. citizens who wanted to lease land to Japanese farmers. In Terrace v. Thompson, the Court reasoned that Washington had “wide discretion in determining its own public policy and what measures are necessary for its own protection and properly to promote the safety, peace and good order of its people.”⁵⁶ The Court explained that “in the absence of any treaty provision to the contrary, [a state] has power to deny to aliens the right to own land within its borders.”⁵⁷ Similarly, in Porterfield v. Webb, the Court found California’s law limiting property rights to those “eligible to citizenship” to be constitutional.⁵⁸ Two other U.S. Supreme Court cases decided that year upheld laws restricting the transfer of shares of a landowning corporation to aliens⁵⁹ and prohibiting food crop contracts with aliens.⁶⁰

But Supreme Court decisions issued in 1948 cast doubt on whether Terrace and Porterfield remained good law. In Oyama v. California, the Court invalidated a provision of California’s alien land law that deprived a U.S. citizen of Japanese descent of agricultural land paid for by his father.⁶¹ The Court found that the state had failed to offer any compelling justification for discriminating against a citizen “based solely on his parents’ country of origin.”⁶² The Court recognized that restrictions based on ineligibility for citizenship constituted discrimination based on “racial descent.”⁶³ That same year, in Takahashi v. Fish and Game Commission, the Court declared unconstitutional a California law that allowed only U.S. citizens to get fishing licenses, which was aimed at discouraging Japanese immigrants from returning to the state after their exclusion from the West Coast and internment.⁶⁴ Justice Black, writing for the Court, explained that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.”⁶⁵

In the years following Takahashi, the supreme courts of Oregon, California, and Montana invalidated those states’ alien land laws, recognizing their racist nature and finding them unconstitutional.⁶⁶ The Supreme Court of California opined that the law imposed on noncitizens “an economic status inferior to that of all other persons living in the state. ”⁶⁷ Other states decided to simply repeal their laws.⁶⁸ The Immigration and Nationality Act of 1952, which made naturalization race-neutral, rendered meaningless any remaining state laws that still tied property ownership to eligibility for citizenship.⁶⁹ But various other types of alien land laws remained. For example, in 1943, Wyoming had enacted an alien land law that prohibited Japanese Americans who had been in internment camps from buying land in the state, which was not repealed until 2001.⁷⁰

During the Cold War, a third wave of state laws emerged limiting the rights of foreigners to receive land by inheritance.⁷¹ The purpose of these laws was to keep U.S. wealth from communist regimes rather than to prevent noncitizens from owning land.⁷² This practice ended after the U.S. Supreme Court’s 1968 decision in Zschernig v. Miller, which invalidated an Oregon statute that conditioned a noncitizen’s inheritance right on reciprocal rights being granted to U.S. citizens.⁷³ The Court found that the Oregon law was preempted because it intruded on the federal government’s authority over foreign affairs.

A fourth wave of alien land laws occurred during the 1970s in response to media reports of increased foreign investment in U.S. farmland.⁷⁴ These laws generally restricted the type and amount of land that noncitizens could purchase. Media reports stoked fears that family farmers in the U.S. were threatened by foreign investment.⁷⁵ In 1972, the Wisconsin Supreme Court upheld an alien land law with “no racial implications” that restricted only the amount of land that could be owned by foreign investors, finding the law “sufficiently related to the state’s asserted desire to limit possibly detrimental absentee land ownership.”⁷⁶

The current wave of land laws has much in common with these prior waves. Anti-immigrant biases, xenophobia, and fears regarding the fate of family farmers all appear to be playing a role. But as discussed below, the new bills and law also have their own distinct characteristics.

II. RECENT BILLS AND LAWS: THE FIFTH WAVE

The fifth wave of alien land laws began around 2020 and rapidly gained momentum. In 2022 and 2023, dozens of bills were proposed across the country restricting the ownership of real property by individual noncitizens, foreign companies, and foreign governments.⁷⁷ To date, twelve of those bills have been enacted into law in Alabama, Arkansas, Florida, Idaho, Indiana, Louisiana, Montana, North Dakota, Oklahoma, Tennessee, Utah, and Virginia. These laws, like their predecessors, vary widely, both in terms of whom they restrict and what is restricted.

Some of the newly enacted laws focus on foreign governments and businesses rather than individuals.⁷⁸ Among the laws that apply to individual noncitizens, most restrict only “non-resident aliens,” while exempting “resident aliens.” Residence in this context generally refers to domicile in the United States,⁷⁹ but a couple of laws define a “resident alien” to mean a noncitizen who lives in the state.⁸⁰ Some of the laws require “resident aliens” to dispose of their real property within a certain amount of time if they no longer qualify as residents of the state.⁸¹

Other laws turn on immigration status rather than residence. For example, Louisiana’s law exempts anyone “lawfully present” in the U.S.⁸² Tennessee’s definition of a “sanctioned nonresident alien” explicitly excludes legal permanent residents.⁸³ North Dakota, like Minnesota, exempts not only legal permanent residents but also noncitizens who enter with certain types of temporary investor or trader visas that are available only to citizens of specific countries that have special treaties with the United States.⁸⁴

Like prior waves, many of the new laws place restrictions specifically on agricultural land and other natural resources.⁸⁵ Some are even more specific. Indiana, for example, has prohibited foreign business entities from owning agricultural land for the purpose of crop farming or timber production.⁸⁶ However, there are also novel types of restrictions. Notably, many of the new laws restrict ownership of land within a certain distance of a military installation or other “critical infrastructure.”⁸⁷ Other bills and laws apply broadly to any type of land or real property.⁸⁸

The following Sections take a closer look at some of the distinct characteristics of the new wave of alien land laws and proposed bills. These include singling out specific countries or nationalities by name, focusing on foreign adversaries, prohibiting landownership within a certain distance of military installations or critical infrastructure, focusing on agricultural land, imposing more severe penalties for violations, and targeting all types of foreign control in complex corporate structures.

A. Singling Out Specific Countries

Bills proposed in at least a dozen states (including Alabama, Arkansas, Colorado, Iowa, Florida, Georgia, Maryland, Mississippi, South Carolina, Texas, West Virginia, and Wyoming) singled out specific countries for property restrictions.

For example, Alabama enacted a law that defines a “foreign country of concern” as “China, Iran, North Korea, and Russia.”⁸⁹ Bills considered in Arkansas,⁹⁰ Georgia,⁹¹ and Texas⁹² similarly placed restrictions on citizens of these four countries. In Colorado, West Virginia, and Wyoming, proposed bills placed restrictions on citizens of China, Russia, or any country designated as a “state sponsor of terrorism.”⁹³

Florida enacted an alien land law that defined a “foreign country of concern” to mean China, Iran, North Korea, Russia, Cuba, the Venezuelan regime of Nicolás Maduro, and Syria.⁹⁴ Florida’s law is harshest, however, on citizens of China, placing more severe restrictions on them and subjecting them to stiffer penalties for violating the law.⁹⁵ A bill proposed in Arizona included the same seven countries on Florida’s list plus Saudi Arabia.⁹⁶ The Arizona bill emerged after a Saudi Arabian company made headlines for leasing Arizona public lands and pumping exorbitant amounts of groundwater to grow alfalfa for export to Saudi Arabia.⁹⁷

Many other bills singled out China alone, including bills proposed in Iowa,⁹⁸ Maryland,⁹⁹ Mississippi,¹⁰⁰ South Carolina,¹⁰¹ and Washington.¹⁰² Two Arizona bills,¹⁰³ as well as a bill proposed in Hawaii,¹⁰⁴ refer specifically to the Chinese Communist Party and its members. A Utah bill indirectly references Chinese companies by defining a “restricted foreign entity” as a company that the Secretary of Defense is required to report as a military company, which includes only Chinese military companies.¹⁰⁵ The intense focus on China across so many of these bills and laws is reminiscent of the anti-Asian sentiment that fueled alien land laws long ago. Alien land laws singling out specific countries are less likely to pass constitutional muster than more evenhanded laws.¹⁰⁶

B. Targeting Foreign Adversaries

Prior to the most recent wave, only five states had alien land laws that restricted land ownership by citizens of foreign adversaries.¹⁰⁷ None of those laws explicitly referred to foreign adversaries, much less attempted to name them. Instead, they benignly extended equal property rights to “alien friends” (New Jersey),¹⁰⁸ “[a]liens who are subjects of governments at peace with the United States and this state” (Georgia),¹⁰⁹ or any alien who is “not an enemy” (Kentucky, Maryland, and Virginia).¹¹⁰

In 2023, however, numerous state legislatures considered or passed laws restricting property ownership rights of citizens and companies of countries designated by the federal government as hostile to the U.S. or its values in some way. These bills and laws use various federal lists that were created for completely different purposes.

Laws enacted in Louisiana,¹¹¹ North Carolina,¹¹² and Virginia,¹¹³ as well as bills proposed in Kansas,¹¹⁴ Montana,¹¹⁵ Ohio,¹¹⁶ South Carolina,¹¹⁷ and Wisconsin,¹¹⁸ refer to the Secretary of Commerce’s designation of certain countries as “foreign adversaries” in the Code of Federal Regulations.¹¹⁹ This designation is based on the Secretary’s determination that a foreign government or foreign nongovernment person has “engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.”¹²⁰ Currently, this designation applies to six countries: China (including Hong Kong), Cuba, Iran, North Korea, Russia, and “Venezuelan politician Nicolás Maduro (Maduro Regime).”¹²¹

The Ohio bill and Louisiana law restrict not only “foreign adversaries” as defined by Secretary of Commerce but also the much longer list of foreign governments sanctioned by the Office of Foreign Assets Control (“OFAC”), which adds Afghanistan, Belarus, Burma, Central African Republic, Democratic Republic of Congo, Ethiopia, Iraq, Lebanon, Libya, Mali, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen, and Zimbabwe.¹²² A law enacted in Tennessee, on the other hand, refers to citizens of foreign governments sanctioned by OFAC but does not include “foreign adversaries” designated by the Secretary of Commerce.¹²³

Other bills and laws refer to various U.S. State Department designations. For example, a bill proposed in New York¹²⁴ refers to a “foreign country of particular concern,” which currently includes twelve countries designated by the State Department: Burma, China, Cuba, Eritrea, Iran, North Korea, Nicaragua, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan. Bills proposed in Colorado, West Virginia, and Wyoming reference a completely different U.S. State Department designation—“state sponsors of terrorism”—a list that currently includes only four countries: Cuba, Iran, North Korea, and Syria.¹²⁵

States have also incorporated other federal definitions into their bills and laws. For example, the law passed in Arkansas references not only foreign countries of “particular concern” but also includes citizens or residents of countries subject to the International Traffic in Arms Regulations.¹²⁶ Meanwhile, a bill proposed in Texas referred to countries identified by the United States Director of National Intelligence as posing a risk to the national security of the United States in each of the three most recent Annual Threat Assessments of the U.S. Intelligence Community.¹²⁷ At least one law, enacted in Indiana, does not refer to federal definitions at all and instead allows the governor to designate certain countries as a threat to critical infrastructure.¹²⁸

A few of the proposed bills simply make vague references to “hostile” countries without providing a clear definition of the term. For instance, a Mississippi bill restricts ownership by “citizens of a country that is hostile to the interests of the United States or a country that is a known violator of human rights,” without explaining how such countries should be identified.¹²⁹ Similarly, a Hawaii bill that restricts land ownership by members of the Chinese Communist Party also refers to “other hostile foreign influence,” providing only a vague definition of this term.¹³⁰

C. Proximity to Military Installations and Critical Infrastructure

Additionally, many of the recent bills and laws limit landownership near military installations or other critical infrastructure. Considerable variation exists among the bills regarding what types of facilities are included under these terms as well as what constitutes an acceptable distance from them.

For example, a bill proposed in California prohibits foreign actors from owning or leasing land within fifty miles of a U.S. military base or California National Guard Base.¹³¹ A bill proposed in Louisiana restricts foreign ownership of “immovable property located within [fifty] miles of any federal or state military land, . . . weather station[], . . . or any facility operated by the Civil Air Patrol.”¹³² A bill proposed in Mississippi prohibits nonresident aliens from owning land within fifty miles of a military installation under the jurisdiction of the Department of Defense, the U.S. Coast Guard, or the Mississippi National Guard.¹³³ A South Carolina bill prohibits companies owned by China or the Chinese Communist Party, or whose principal place of business is in China, from controlling any land or real estate “within fifty miles of a state or federal military base or installation for the purpose of installing or erecting any type of telecommunications or broadcasting tower.”¹³⁴

Bills proposed elsewhere specify shorter distances from military installations. For example, a Georgia bill prohibits nonresident aliens from possessing any land within twenty-five miles of any military base, military installation, or military airport.¹³⁵ A North Carolina bill prohibits adversarial foreign governments from purchasing or holding land within twenty-five miles of a military base or airport.¹³⁶ The law enacted in Florida generally prohibits foreign land ownership within ten miles of a military installation or critical infrastructure facility.¹³⁷ Florida’s choice of ten miles is particularly interesting given that the legislative history indicates that a major concern was a Chinese company’s purchase of land located twelve miles from an air force base in North Dakota.¹³⁸ Meanwhile, a bill proposed in Hawaii considered just two miles from federal land or critical infrastructure to be a safe distance.¹³⁹

D. Harsh Penalties

Criminal penalties and prosecutions for violations of alien land laws are not new. In California and Arizona, such criminal prosecutions were common during the 1920s and 1930s, but those laws were subsequently repealed.¹⁴⁰ Penalties for violating a state’s alien land laws have generally been civil. Forfeiture of the property or sale at auction with proceeds escheating to the state were commonly specified as penalties in state laws. Under some laws, such as Wisconsin’s, a civil fine could be imposed, ranging from $500 to $5,000.¹⁴¹ Criminal penalties existed but were rare.¹⁴²

In the most recent wave of bills, criminal penalties have gained popularity, and civil fines are steeper. Additionally, some of the new bills and laws impose penalties on the sellers as well as the buyers. For example, the alien land law enacted in Arkansas makes a violation a felony punishable by two years in jail and a $15,000 fine.¹⁴³ Being a “resident alien” is mentioned as an “affirmative defense” to the charge.¹⁴⁴ Florida has also made it a criminal offense to violate its new law, which imposes harsher criminal consequences on Chinese purchasers of land than purchasers of other nationalities.¹⁴⁵ Violators who are domiciled in China may be charged with a third-degree felony, punishable by up to five years in jail and a $5,000 fine, while violators domiciled in the other countries named in Florida’s law may be charged with only a second-degree misdemeanor, punishable by sixty days in jail and a $500 fine.¹⁴⁶ This disparity extends to sellers. Selling real property to individuals or companies domiciled in China is a first-degree misdemeanor, punishable by one year in prison and a $1,000 fine, while selling property to individuals or companies domiciled in other countries is only a second-degree misdemeanor.¹⁴⁷

E. Targeting Corporations

Finally, the current wave of alien land laws targets all forms of foreign control in complex corporate structures. The laws restrict not only foreign corporations but also companies incorporated in the U.S. if they are controlled by noncitizens who would not be allowed to purchase the real estate themselves. The expansive language used in some of these laws reflects an attempt to close the loopholes in previous laws that allowed foreigners to acquire land simply by channeling their investments through the veil of a U.S. corporation. This was one of the main drivers behind the recent alien land law passed in Oklahoma, which specified that “[n]o alien or any person who is not a citizen of the United States shall acquire title to or own land in this state either directly or indirectly through a business entity or trust.” ¹⁴⁸

Similarly, a Tennessee bill defined a “foreign business” as “a corporation incorporated under the laws of a foreign country, or a business entity whether or not incorporated, in which a majority interest is owned directly or indirectly by nonresident aliens.”¹⁴⁹ The bill further explained, “Legal entities, including, but not limited to, trusts, holding companies, multiple corporations, and other business arrangements, do not affect the determination of ownership or control of a foreign business.”¹⁵⁰ But this bill still has a major loophole—its definition of a foreign business is limited to owning a majority interest and does not address control. Nonresident aliens could control a corporation based on voting power, even if they do not own a majority of the stock.¹⁵¹

Many other bills closed that loophole. A Washington bill, for example, prohibited acquisition of agricultural land by a foreign-controlled enterprise and defined a controlling interest to mean “possession of more than [fifty] percent of the ownership interests in an entity, or an ownership interest of [fifty] percent or less if the persons holding such interest actually direct the business and affairs of the entity without the consent of any other party.”¹⁵² A law enacted in North Dakota adopts a nearly identical definition.¹⁵³

While the definitions in the new bills and laws vary and are not perfect, they clearly seek to capture all kinds of businesses in which noncitizens play a decisive role. Of course, if a corporation is forty-nine percent owned by U.S. citizens and fifty-one percent owned by noncitizens, the U.S. citizen owners are also likely to suffer financial setbacks as a result of such laws.

III. ARE ALIEN LAND LAWS LEGAL?

Commentators have taken different perspectives on the legality of alien land laws in the past.¹⁵⁴ Some have argued that alien land laws would violate the Equal Protection Clause if they singled out specific countries.¹⁵⁵ Others contend that only restrictions on lawful permanent residents would raise equal protection concerns, and even those may be permissible.¹⁵⁶ Preemption concerns and Dormant Commerce Clause concerns have also been raised.¹⁵⁷ Because of significant variations among the laws, it is difficult to analyze these legal issues for the laws as a whole. Nevertheless, this Part attempts to parse some of the legal challenges that the new wave of alien land laws may face.

A. Statutory Violations

Alien land laws may conflict with federal statutes that prohibit discrimination such as the Fair Housing Act (“FHA”)¹⁵⁸ and the Civil Rights Acts of 1866¹⁵⁹ and 1870.¹⁶⁰

1. The Fair Housing Act

The FHA, enacted as part of the Civil Rights Act of 1968, seeks to prohibit unlawful discrimination by landlords. Under the FHA, it is discriminatory “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”¹⁶¹ Although alienage is not specifically mentioned, the U.S. Department of Housing and Urban Development (“HUD”) has stated that “[a] requirement involving citizenship or immigration status will violate the [FHA] when it has the purpose or [unjustified] effect of discriminating on the basis of national origin.”¹⁶² Private parties would be violating the FHA if they comply with state laws that restrict who can buy or lease real estate based on national origin. States may enhance the protections of the FHA but cannot reduce them. Section 816 of the FHA declares invalid any state law that requires or permits any action that would be a discriminatory housing practice under the FHA.¹⁶³

One aspect of the FHA that makes the inquiry different from an equal protection claim is that claimants do not need to prove discriminatory intent. A facially neutral law may violate the FHA if it has “discriminatory effects.”¹⁶⁴ This is useful in challenging a law like Florida’s, which may be perceived as discriminating based on domicile rather than national origin. By prohibiting sales of real estate to individuals and companies domiciled in China, Florida’s law clearly has discriminatory effects related to national origin: China has over one billion inhabitants, of whom only .05% are not Chinese.¹⁶⁵ Similarly, other countries identified as “foreign adversaries” under Florida’s law have a very small percentage of foreigners. Less than 0.1% of Cuba’s population are immigrants, for instance.¹⁶⁶

A law that has a discriminatory effect on a protected class is unlawful if it is not necessary to achieve a substantial, legitimate, nondiscriminatory interest, or if a less discriminatory alternative could serve that interest.¹⁶⁷ As discussed further under equal protection below, alien land laws are not necessary to achieve the asserted interests, and less discriminatory alternatives are, in fact, available.

An important limitation of the FHA, however, is that it only applies to “dwellings,” that is, to real estate capable of being used as a residence.¹⁶⁸ Thus, while broadly written alien land laws that restrict real estate (or real property in general) remain vulnerable to FHA challenges,¹⁶⁹ those that restrict only agricultural land cannot be challenged under the Fair Housing Act.¹⁷⁰ The Civil Rights Acts of 1866 and 1870 may help fill this gap, although, as explained below, these laws have their own limitations.

2. Civil Rights Acts of 1866 and 1870

The Civil Rights Act of 1866 provided that “citizens . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts . . . as is enjoyed by white citizens.”¹⁷¹ The Civil Rights Act of 1870 made a significant revision by changing “citizens” to “persons.”¹⁷² This language is now codified in 42 U.S.C. § 1981 (“section 1981”). The revised language made it clear that noncitizens, as well as citizens, are protected by the law’s equality mandate.¹⁷³ Courts have also construed section 1981 as prohibiting discrimination based on alienage.¹⁷⁴ Alien land laws may therefore run afoul of section 1981.¹⁷⁵

One limitation of section 1981 is that it applies only to individuals “within the jurisdiction of the United States.” While this phrase includes noncitizens in the United States,¹⁷⁶ it would likely exclude noncitizens residing abroad, the group most affected by alien land laws. Corporations headquartered abroad that are “foreign adversaries” under Montana’s law therefore may not be able to bring challenges under section 1981, although if they have U.S.-based subsidiaries, such challenges may still be possible. Other states, like Indiana, have broad definitions of “qualified entities.”¹⁷⁷ Many alien land laws tackle corporations controlled by foreigners. Any qualified entities based in the U.S. should be able to bring section 1981 challenges, even if they are owned or controlled by citizens of Iran, North Korea, or China.

Another potential limitation of section 1981 is that a separate provision of the Civil Rights Act of 1866, now codified at 42 U.S.C. § 1982 (“section 1982”), specifically addresses property and extends equal protection only to U.S. citizens.¹⁷⁸ Specifically, section 1982 provides: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”¹⁷⁹ That language was not altered by the Civil Rights Act of 1870. Courts could therefore interpret section 1982 as a limited exception to section 1981’s more general rule about contracts, excluding contracts pertaining to property from the alienage equality principle found in section 1981.

Even under this interpretation, however, section 1981 is still relevant, since some of the recently enacted laws not only prohibit buying and selling real property, but also prohibit forming other types of contracts. For example, Indiana’s, Montana’s, and Texas’s new alien land laws prohibit certain foreign entities from countries like China from entering into agreements regarding critical infrastructure (energy grid, water treatment plants, and so on).¹⁸⁰

Additionally, one could argue that section 1982 prohibits the restrictions that alien land laws place on U.S. citizen sellers and landlords, as well as U.S. citizen-owned or controlled realty and title companies. From the perspective of U.S. citizens who want to sell properties, the restrictions imposed by states are restraints on alienation.¹⁸¹ The laws shrink their market, and if the claims about Chinese investors flooding the market and paying exorbitant prices are true,¹⁸² then real estate owners and companies who cater to this population will lose a profitable share of potential buyers. One complication with this argument is that U.S. citizen sellers are not necessarily being treated differently from other “white citizens” under the language of section 1982. For the argument to work, the focus would likely have to be on non-white U.S. citizen sellers, for example, U.S. citizen sellers of Chinese descent whose clientele potentially include a substantial number of Chinese citizens or companies domiciled in China. These U.S. citizen sellers of Chinese descent could argue that they are being deprived of the same opportunities to sell real property that are enjoyed by white citizens who do not have clientele in China.

Another possible legal hurdle is that a disparate impact claim under section 1981 or section 1982 requires showing that the disparate impact is traceable to a discriminatory purpose.¹⁸³ This is more limiting than a disparate impact claim under the FHA. Nevertheless, the legislative history and rhetoric surrounding the passage of some of the laws may help demonstrate a discriminatory purpose. State legislators and executive officials discussing alien land laws have used inflammatory rhetoric coated with national security concerns. Feeding on the anti-Asian sentiment fueled by dubious theories about the origin of COVID-19 and compounded by economic fears concerning China’s influence, their statements are reminiscent of the language used in the era of the “Yellow Peril.”¹⁸⁴ Although alien land laws may seem somewhat removed from the original purpose of the Civil Rights Acts, which was to prevent discrimination against African Americans in the wake of the Civil War, the rhetoric surrounding these laws reflects a form of racial discrimination.

B. Equal Protection Concerns

The Equal Protection Clause applies to all persons within the United States, including all noncitizens.¹⁸⁵ But noncitizens abroad generally are not regarded as having a right to equal protection,¹⁸⁶ although open questions about extraterritorial rights certainly remain.¹⁸⁷ This may be a threshold hurdle for bringing an equal protection challenge, since many of the alien land laws apply only to “nonresident aliens” and define “resident aliens” as noncitizens living anywhere in the U.S.¹⁸⁸ If an alien land law restricts only foreigners abroad, an equal protection challenge would likely need to be brought by the individuals and companies based in the U.S. that are prohibited from selling or leasing real property to foreigners abroad.¹⁸⁹

Another major challenge in bringing an equal protection claim will be the century-old Supreme Court precedents in Terrace and Porterfield upholding alien land laws, which have never been overruled.¹⁹⁰ Of course, in the 1920s, equal protection jurisprudence was quite different than it is today. Segregation, Jim Crow, and racially restrictive covenants were all legal.¹⁹¹ Levels of judicial scrutiny were not introduced until 1938, in the famous footnote four of United States v. Carolene Products, in which Justice Stone mentioned certain circumstances that may call for a “more searching judicial inquiry,” including cases involving “prejudice against discrete and insular minorities.”¹⁹²

In 1948, when the Supreme Court applied this type of searching judicial inquiry in Oyama, it invalidated as racially discriminatory a part of California’s alien land law that deprived U.S. citizens of Japanese descent of property rights.¹⁹³ But the Court stopped short of invalidating the law altogether.¹⁹⁴ That same year, in Takahashi, when the Court struck down a California law that prohibited those “ineligible for citizenship” from obtaining fishing licenses, it rejected California’s reliance on the Terrace and Porterfield cases, finding them not controlling even “[a]ssuming the[ir] continued validity.”¹⁹⁵

The modern strict scrutiny test did not emerge until the 1960s.¹⁹⁶ And it was not until 1971 that the Supreme Court applied strict scrutiny to alienage classifications.¹⁹⁷ In a watershed decision, Graham v. Richardson, the Court found that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority . . . for whom such heightened judicial solicitude is appropriate.”¹⁹⁸ Applying this new, rigorous standard of review, the Court struck down Arizona and Pennsylvania statutes that favored citizens over noncitizens in welfare benefits.¹⁹⁹ Richardson rejected the states’ argument that the restrictions were justified by “a State’s ‘special public interest’ in favoring its own citizens over aliens in the distribution of limited resources such as welfare benefits.”²⁰⁰ The Court also flatly rejected “fiscal integrity” as a compelling justification, stating that “aliens lawfully within this country have a right to enter and abide in any State in the Union ‘on an equality of legal privileges with all citizens under non-discriminatory laws.’ ”²⁰¹

The Supreme Court continued to apply strict scrutiny to strike down state laws that discriminated against noncitizens in employment. The Court invalidated a New York law that permitted only U.S. citizens to be eligible for state employment,²⁰² a Connecticut law that permitted only U.S. citizens to become lawyers,²⁰³ and a Texas law that permitted only U.S. citizens to be notary publics.²⁰⁴

However, the Court has also recognized an exception to strict scrutiny in cases where alienage classifications are related to a state’s political function.²⁰⁵ In Bernal v. Fainter, the Court described this as a “narrow exception” that “applies to laws that exclude aliens from positions intimately related to the process of democratic self-government.”²⁰⁶ Under the political function exception, the Court has applied rational basis review to uphold laws that require police officers,²⁰⁷ probation officers,²⁰⁸ and public school teachers²⁰⁹ to be U.S. citizens.

If strict scrutiny applies to an alien land law, then the law must be narrowly tailored to a compelling government interest, a test that is generally difficult to pass. If rational basis applies, the law must merely be related to a legitimate government interest. Determining which level of scrutiny applies is therefore a critical threshold question in assessing the likelihood of prevailing with an equal protection claim.

1. Does Strict Scrutiny Apply?

There are at least three important legal questions that must be answered in order to determine if alien land laws are subject to strict scrutiny. First, do all alienage classifications receive strict scrutiny or only those affecting lawful permanent residents? Second, does the “political function” exception to strict scrutiny for alienage classifications apply to alien land laws? Third, do restrictions that turn on being domiciled (or headquartered, for a corporation) in particular countries discriminate based on national origin?

i. Do All Alienage Classifications Receive Strict Scrutiny, or Only Classifications Affecting Lawful Permanent Residents?

The Supreme Court’s decision in Richardson broadly stated that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority” and that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”²¹⁰ This language does not distinguish between legal permanent residents and other noncitizens. Subsequently, in Nyquist v. Mauclet, the Supreme Court also applied strict scrutiny in striking down a New York statute that barred a heterogeneous group of noncitizens (not just permanent residents) from state financial aid for higher education, stressing that “[t]he important points are that [the statute] is directed at aliens and that only aliens are harmed by it.”²¹¹

While the Court has never limited the application of strict scrutiny to lawful permanent residents, its use of the term “resident aliens” has created confusion. The term “resident alien” can easily be misconstrued as shorthand for a permanent resident, although it simply refers to an alien residing in the United States.²¹² Asylum applicants, refugees, and noncitizens with a variety of temporary visas, among others, are permitted to reside in the United States, even though they are not lawful permanent residents.

In Toll v. Moreno, the Supreme Court had an opportunity to clarify what level of scrutiny applies to classifications involving temporary immigrants (technically called “nonimmigrants”) when evaluating a University of Maryland policy that prohibited individuals with G-4 visas from receiving in-state tuition.²¹³ But the Court ultimately found that the university policy was preempted and declined to address the equal protection claim.²¹⁴ A circuit split has since emerged regarding what level of scrutiny applies to state classifications involving temporary immigrants.

The Fifth Circuit has held that temporary immigrants are not a suspect class, applying rational basis review in upholding Louisiana laws that prohibit temporary immigrants from taking the bar exam²¹⁵ and obtaining a nursing license.²¹⁶ In explaining why classifications affecting temporary immigrants receive rational basis review, the Fifth Circuit stressed the ways that temporary immigrants are different from permanent residents, noting that “nonimmigrant aliens may not serve in the U.S. military, are subject to strict employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits.”²¹⁷ The Sixth Circuit followed the Fifth Circuit’s rationale, applying rational basis review in upholding a Tennessee statute that conditions issuance of a driver’s license on being a U.S. citizen or permanent resident.²¹⁸

The Second Circuit, on the other hand, has held that temporary immigrants are a suspect class and applied strict scrutiny in striking down a New York statute that prohibited them from a obtaining a pharmacist’s license.²¹⁹ The court refused to create an exception to strict scrutiny for temporary immigrants that the Supreme Court never recognized.²²⁰ Additionally, the court reasoned that the factual similarities between U.S. citizens and permanent residents recognized in Richardson were never intended to be a test for triggering strict scrutiny.²²¹ The court correctly recognized that Richardson’s recognition of aliens as a “discrete and insular minority” was premised on their minority status within the community, not their similarity to citizens.

The only class of noncitizens that the Supreme Court has ever treated differently in terms of the level of scrutiny that applies are undocumented individuals. But even in Plyler v. Doe, in which the Court refused to recognize undocumented children as a suspect class, the Court struck down the Texas statute that denied them a basic education.²²² There, the Court applied a form of intermediate scrutiny by requiring Texas to show that it had a “substantial” interest in excluding undocumented children from public schools.²²³ This heightened scrutiny may have been unique to a case that stressed the importance of education and the innocence of children.²²⁴ Still, if undocumented children received heightened scrutiny, it is difficult to argue that lawfully present noncitizens should receive rational basis review simply because they are not permanent residents.²²⁵

ii. Does the “Political Functions” Exception to Strict Scrutiny for State Alienage Classifications Extend to Ownership of Real Property?

Courts have not yet addressed whether state alien land laws fall under the “political functions” exception to strict scrutiny. If the exception applies, a state’s alienage classifications would receive only rational basis review. In Shen v. Simpson, the case challenging Florida’s 2023 alien land law, Florida argued that the political function exception applies, triggering only rational basis review.²²⁶ Thus far, however, the Supreme Court has only applied the political functions exception to certain state jobs.

The Supreme Court set forth a two-part test for determining “whether a restriction based on alienage fits within the narrow political-function exception.”²²⁷ First, a court examines the specificity of the classification: “[A] classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends.”²²⁸ As explained further below in the application of the strict scrutiny test, alien land laws are substantially over- and under-inclusive. That alone undercuts the relevance of the political function exception.

Additionally, the second part of the test provides that:

[E]ven if the classification is sufficiently tailored, it may be applied in the particular case only to “persons holding state elective or important nonelective executive, legislative, and judicial positions,” those officers who “participate directly in the formulation, execution, or review of broad public policy” and hence “perform functions that go to the heart of representative government.”²²⁹

The plain language of the second prong indicates that the exception applies only to certain public positions. Owning real property is not a public position. Nor does being a property owner require any involvement in the formulation, execution, or review of public policies. Restricting property ownership is different from “limit[ing] the right to govern to those who are full-fledged members of the political community.”²³⁰

One way to view the issue is to consider whether real property ownership is more closely related to Supreme Court cases protecting noncitizens’ rights to equal economic opportunity,²³¹ or to cases that allow states to limit certain public positions to U.S. citizens.²³² Land is often connected to economic opportunity—agricultural land provides a livelihood through farming and raising livestock; commercial property supports businesses that provide livelihoods; and even residential property is often necessary to work in an area. In fact, in cases striking down state laws that discriminated against noncitizens in employment, the Supreme Court has connected the right to work to the right to “entrance and abode,” stating “they cannot live where they cannot work.”²³³

Furthermore, real property ownership has little in common with the public positions that have fallen under the exception to strict scrutiny. Landowners are not “clothed with authority to exercise an almost infinite variety of discretionary powers,”²³⁴ they do not fulfill “a basic governmental obligation,”²³⁵ and they are not “in a position of direct authority over other individuals.”²³⁶ Under this analysis, if any type of restriction on real property qualifies for the political functions exception, it would only be ownership of state land.

However, if the political functions exception is more broadly construed as encompassing “the process of democratic self-determination” and “the community’s process of political self-definition,” courts may consider land ownership to be relevant.²³⁷ Land can be seen as providing “the basis for political organization.”²³⁸ States’ historical restrictions on foreign land ownership, going back centuries, could also be viewed as reflecting an understanding that such restrictions are somehow inherent to state sovereignty and self-determination.

But choosing who gets to live in a state has not traditionally been part of a state’s right to self-definition. Due to the constitutional right to migrate, the Supreme Court has stressed that “[s]tates . . . do not have any right to select their citizens.”²³⁹ A state law aimed at deterring a particular class of people from migrating to the state is impermissible whether that class consists of welfare applicants, as in Richardson, Japanese immigrants, as in Takahashi, or other noncitizens. Similarly, the Supreme Court has found that a “[s]tate’s objective of reducing population turnover” would “encounter[] insurmountable constitutional difficulties.”²⁴⁰ The political functions exception allows a state to “limit the right to govern to those who are full-fledged members of the political community,”²⁴¹ but it has never allowed a state to limit who lives in the community.

In short, the political functions exception should not apply to alien land laws, and strict scrutiny would be the proper standard of review for their alienage classification.

iii. Do Restrictions Discriminate Based on National Origin if They Draw Distinctions Based on Where a Person or Entity Is Domiciled or Headquartered?

National origin discrimination is distinct from discrimination based on alienage. While alienage discrimination refers to distinctions between citizens and noncitizens,²⁴² national origin discrimination is broadly understood to include discrimination based on an individual’s place of origin, or their ancestors’ place of origin.²⁴³ Laws that place restrictions on citizens or corporations of specific countries ought to trigger strict scrutiny based on national origin.

States may argue, however, that their laws do not discriminate based on national origin but instead draw distinctions based on place of “residence” or “domicile.” For example, Florida’s law restricts only noncitizens who are “domiciled” in certain foreign countries, rather than restricting citizens of those countries outright.²⁴⁴ A federal district court found that the Florida law does not discriminate based on Chinese national origin because Chinese individuals domiciled in the United States are not restricted; only individuals domiciled in China are restricted, and they need not be Chinese.²⁴⁵ Similarly, Montana’s law applies to corporations that are “domiciled or headquartered” in a country identified as a “foreign adversary.”²⁴⁶

A law like Florida’s would clearly have a disparate impact on individuals of Chinese national origin, since over 99% of people living in China are Chinese. But equal protection principles require a showing of intentional discrimination; classifications that merely result in a disparate impact are not subject to strict scrutiny.²⁴⁷ In Village of Arlington Heights v. Metropolitan Housing Development Corp., however, the Court found that discriminatory intent could be evidenced by factors that include “disproportionate impact, the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers.”²⁴⁸ These factors must be assessed cumulatively.²⁴⁹ In Shen, the Florida case, the clearly disproportionate impact on Chinese individuals, along with the legislative history, would support a finding of discriminatory intent under Arlington Heights.

Because the Arlington Heights factors are non-exhaustive, some appellate courts have mentioned other considerations. For example, a “consistent pattern” of actions of decisionmakers that have a much greater harm on minorities than on non-minorities could help establish discriminatory intent.²⁵⁰ In a state like Florida or Texas, where the governors have taken numerous actions to try to prevent immigrants from coming to the state, this may be a relevant consideration.²⁵¹ Courts have also found that applying different, less favorable processes or substantive standards to requests by members of a suspect class may raise an inference of discriminatory intent. Some alien land laws impose special procedures for buyers from certain countries, such as requiring buyers to sign affidavits attesting that they are not principals of China and to register existing properties with the state.²⁵² These types of procedures could further help establish discriminatory intent.²⁵³

2. Analyzing Alien Land Laws Under Strict Scrutiny

In order to survive strict scrutiny, a law must be narrowly tailored to serve a compelling government interest. When strict scrutiny is applied, the government “must show that it cannot achieve its objective through any less discriminatory alternative.”²⁵⁴ The main reasons offered for the new wave of alien land laws are national security, food security, and preventing absentee landownership. As explained below, even assuming these are all compelling government interests, alien land laws are unlikely to survive strict scrutiny because they are not narrowly tailored to achieve these objectives. There are also less restrictive alternatives available.

i. National Security

In explaining the need for Alabama’s newly enacted alien land law, Governor Ivey said, “Across the United States, we have seen alarming instances of foreign entities purchasing large tracts of land, which could have severe consequences for our country’s national defense and economy, if no action is taken.” ²⁵⁵ As discussed above, many of the proposed and enacted laws forbid foreign ownership of land within a certain distance of military installations or critical infrastructure. Such restrictions are highly unlikely to prevent espionage or other national security attacks. The Chinese balloon that hovered over Montana did not need to be launched from land near a military base.²⁵⁶ Neither do drones or cyberattacks gathering U.S. data.²⁵⁷

Furthermore, the “safe” distances from military installations or critical infrastructure are arbitrary in this new wave of alien land laws. As noted above, these distances range from two to fifty miles. The best illustration of this arbitrariness is Florida’s law, which bans ownership by “foreign principals” within ten miles of military installations even though the legislation was triggered by a Chinese company’s purchase of land twelve miles from a military based in North Dakota.²⁵⁸

Nationality-based restrictions on ownership of real property are also easily circumvented. Straw men can be used to purchase the land. A Chinese tycoon can easily have someone purchase it for him, as Mr. Sun did in Texas.²⁵⁹ As commentators have previously noted, alien land laws do not really pose an impediment to acquiring real property.²⁶⁰

A less restrictive alternative would be for states to establish or expand existing reporting requirements for foreign investment in land. Several states have already implemented reporting requirements for foreign investments in agricultural land.²⁶¹ Extending the reporting requirements to all real estate and subjecting those transactions to a review process to identify risky transactions would be less restrictive and potentially more effective than a blanket ban. Once the state has information about a potential transaction, it can decide if the transaction can go forward or if it involves too many risks from a national security perspective. This process imposes less of a restriction on individuals who want to sell their land and is less likely to be perceived as aggressive by foreign countries. It is an approach similar to the one used at the federal level by the Committee on Foreign Investment in the United States (“CFIUS”). However, this approach, like the current one banning transactions, may be preempted by the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”).²⁶² Another way to discourage transactions involving noncitizens abroad is taxation. A tax would increase the cost of real estate transactions, ensuring that only those bringing a large benefit move forward. Taxation, though, could violate the Dormant Foreign Commerce Clause.²⁶³

In short, banning land ownership within certain distances of military installations or critical infrastructure is not going to bring large gains in national security. It will, however, impose significant costs by barring potential good faith purchasers from accessing land, introducing tensions in the United States’ relationship with certain countries, and perpetuating negative sentiments towards people from countries like China.

ii. Food Security

The idea of food security has had a central role in farmland regulation for a long time.²⁶⁴ There is a fear that foreign companies will control U.S. food production and either let Americans suffer if certain products are unavailable or make them pay a higher cost by importing them. The fear is not new: for decades, foreign owners of agricultural land have been required to report to the U.S. Department of Agriculture.²⁶⁵

But this fear is misplaced. The United States has a surplus of agricultural products.²⁶⁶ Furthermore, the bills deal with land ownership as a proxy for agricultural production, but the current structure of agricultural markets may make that an inadequate proxy. Eight of the twenty largest food and beverage companies in the United States are foreign companies, but none are from the countries deemed foreign countries of concern in the new wave of alien land laws.²⁶⁷ Control of agricultural land neither results in automatic control of the food supply, nor does it lead to control of agricultural production. In Iowa, for example, where roughly all non-family corporations are prevented from owning agricultural land, large agribusinesses simply lease the land from several owners, subverting the goal of the ownership prohibition.²⁶⁸ A similar subterfuge could be used by foreign companies in response to state alien land laws.

If the concern is foreign control of agricultural land and absentee ownership, focusing on the “who” by targeting specific countries’ nationals would be a partial solution if the countries singled out were the ones that most foreign owners come from. If that were the case, then instead of banning China, Iran, North Korea, or Russia, states should ban Canada, Netherlands, Italy, the U.K. and Germany, in that order, because each of them owns far more agricultural land than China.²⁶⁹ Even a measure like Washington’s—a blanket prohibition on foreign investment in agricultural land—is not automatically going to slow down the consolidation of land and reduce land prices because domestic companies may still accumulate large amounts of natural resources.

A less restrictive alternative to address concerns about foreign control of resources is to limit the amount of these resources that foreigners can own. This approach recognizes that size matters and that small investments give foreign actors less leverage against federal, state, and local governments.²⁷⁰ Restricting the amount of land that noncitizens can own would also discourage financial investors seeking market control who need a certain scale for the investment to be profitable.

iii. Absentee Ownership

A third motivation for the new wave of alien land laws is concern over absentee ownership.²⁷¹ Absentee ownership is problematic because property is treated as an investment, and the owner generally lacks interest in what role the property could fulfill in the community,²⁷² civically and economically.²⁷³ This concern applies to both agricultural lands and dwellings. Alien land laws that distinguish between “resident aliens” and “nonresident aliens” reflect a desire to preserve property for residents. But because most state laws usually define a “resident alien” as living anywhere in the United States, limiting property ownership to resident aliens would not necessarily prevent absentee ownership. An owner of agricultural land in the Central Valley living in Shanghai is no different than an owner living in Rhode Island. Both will lack the local knowledge and the community involvement.

A more narrowly tailored alternative to address absentee ownership would be to impose a requirement of occupancy or production, or both, like the requirements for establishing a homestead.²⁷⁴ Alternatively, a state could tax land that is not in production at a higher rate, no matter where the owner resides.

A few alien land laws do impose stricter residency requirements to prevent absentee ownership.²⁷⁵ For example, Oklahoma’s newly enacted law has an exception for noncitizens who “take up bona fide residence in this state,” but if they leave the state, they must dispose of the land within five years.²⁷⁶ These requirements likely violate the Commerce Clause.

iv. Real Estate Market Prices

Although not explicitly mentioned by legislators proposing alien land laws, another motivation is fear of foreign investors driving up the prices of real estate.

In the agricultural sector, the fear is that it may displace American farmers who will not have access to land. Alabama’s Senate Bill (“S.B.”) 14 banning foreign ownership of agricultural land illustrates these concerns.²⁷⁷ Although the problem of access to farmland for small family farmers is real, the culprit is not necessarily foreigners but rather investors and consolidation.²⁷⁸ Furthermore, agribusinesses have been dominating the market.²⁷⁹ These alien land laws focus on the “who,” instead of on the “what”—in other words, they do not tackle the issue of corporate consolidation plundering natural resources.²⁸⁰

In the residential market, even if the overall Chinese investment in land is not large, it may have significant effects in certain local markets. While Chinese investment in land may drive prices up, it is necessary to consider a more nuanced picture. In some areas of the Midwest, Chinese investment has helped revitalize crisis-stricken areas, such as the Stonewater Community in a suburb of Detroit.²⁸¹ Many municipalities have welcomed the new developments targeting Chinese buyers. Corinth, near Dallas, readily approved new developments in its jurisdiction.²⁸² The situation may be different in Manhattan or San Francisco and other big cities where Chinese investments may be driving up home values.²⁸³ However, targeting the demand side will not solve the housing crisis because it is a supply-side problem.

The poor fit between alien land laws and their objectives, combined with the availability of less restrictive alternatives, means such laws are likely to be struck down under strict scrutiny.

3. Rational Basis Analysis

If rational basis review applies instead of strict scrutiny, then a court need only inquire if the law is rationally related to a legitimate government purpose. There is no analysis of less restrictive alternatives for rational basis review.²⁸⁴ While laws generally survive rational basis review, courts have invalidated laws motivated by animus by applying rational basis with bite, a heightened form of scrutiny. Both types of rational basis review are discussed below.

i. Regular Rational Basis Review

The poor means-end fit discussed above arguably fails not only strict scrutiny, but also rational basis review. There is simply no rational relationship between the asserted objectives and the means being used to achieve them, since the restrictions imposed will be completely ineffective in addressing the problems identified. First, the problems of access and prices of real estate are mostly supply problems, not demand. Second, the countries that are singled out in the new wave of alien land laws completely fail to reflect the nationalities of the largest foreign landowners. Third, these laws are argued as ways to ensure food security, but food security is not a problem in the United States. To the extent that food security embodies consolidation in the agricultural sector and absentee ownership, alien land laws do not solve the food security problem because the real culprits are domestic corporations and corporations from countries that are not mentioned in any of the alien land laws. Fourth, from a national security perspective, foreign adversaries who want to spy on the U.S. are likely to use methods that do not require a land base near the target.

The few cases where courts have upheld alien land laws under rational basis review are distinguishable from many of the current laws because those laws were different in scope and did not single out specific nationalities. For example, the Eighth Circuit upheld a Nebraska constitutional provision prohibiting agricultural land ownership by non-family corporations.²⁸⁵ In addition, the Wisconsin Supreme Court upheld a law that limited ownership of land by “nonresident aliens” to 640 acres.²⁸⁶ The court found the law to be rationally related to the legitimate goal of preventing absentee ownership, stating that “limiting the benefits of land ownership to those who share in the responsibilities and interests of residency is not an unreasonable exercise of legislative choice.”²⁸⁷

The fate of the new laws may be different, especially if they single out specific countries. Laws targeting citizens, corporations, and governments of China, Iran, North Korea, Russia, and other countries on various federal lists are much more ineffective (and more insidious) than the laws considered in these prior decisions, which treated all nonresident aliens equally. If the targeted countries’ citizens and corporations own little to no real property in the state, legislators cannot rationally think that prohibiting them from owning real estate will make a dent in the problems they want to tackle. Additionally, absentee ownership is already pervasive in the agricultural sector. Targeting foreign owners as a potential solution would affect only 3% of the land in the United States if all countries were restricted. Legislators are aware that there is little overlap between the problem of absentee ownership and foreign ownership.²⁸⁸ As for statutes that prohibit landownership within a certain distance of military bases or critical infrastructure, this will do nothing to prevent cyberattacks, which pose the main threat to national security, as noted above.²⁸⁹

Another reason for questioning the rationality of the new wave of alien land laws is that availability bias appears to play a major role in legislators’ decisions. Availability bias is the human tendency to use information that comes to mind quickly and easily when making decisions.²⁹⁰ It is an unconscious mental shortcut that circumvents taking all evidence into consideration. Because a few incidents that involved foreign investors made national news, the new wave of alien land laws was spurred.

In addition to the wind farm project planned by Mr. Sun in Texas, there were two other prominent incidents. One involved a Saudi-owned company called Fondomonte that was leasing public land in Arizona and draining the groundwater supply to grow alfalfa for export back to Saudi Arabia, where alfalfa farming was prohibited due to water scarcity. The company paid relatively little to lease the land in Arizona and got the water for free, while Americans in the surrounding area paid extremely high costs for water.

The other case involved a Chinese food manufacturer that tried to purchase 300 acres of agricultural land in North Dakota located twelve miles from the Grand Forks Air Force Base.²⁹¹ The federal government’s CFIUS reviewed this case and determined that it did not have jurisdiction over the transaction because the Grand Forks Air Force Base was not on its list of military installations.²⁹² This led people to believe that the federal government’s process was inadequate and that states needed to take more action. The Grand Forks incident was relied on not only by legislators in North Dakota, but also by other states including Florida.²⁹³ Yet, as previously noted, the law that Florida ultimately passed would not have stopped such an investment, since it prohibited Chinese foreign investment within ten miles of military installations. The arbitrariness and ineffectiveness of the laws suggest that decisions were driven by implicit biases rather than carefully studied facts. Worse yet, they may have been motivated by animus, as discussed below.

ii. Rational Basis with Bite

To the extent that recent alien land laws are motivated by animus toward China or another country, courts may apply “second order” rational review, also known as rational basis “with bite.”²⁹⁴ In such cases, the Supreme Court has found the government’s interest to be illegitimate because it is motivated by prejudice. The Court has considered a poor means-end fit to be a signal that an illegitimate interest may be motivating the law.²⁹⁵

Comments made by politicians around the time that the recent wave of alien land laws started being proposed certainly suggest that anti-Chinese animus played a role. For example, in 2022, a candidate who competed in the Republican primary for a Texas House seat tweeted, “China created a virus that killed hundreds of thousands of Americans.”²⁹⁶ Former President Trump also continued to call COVID-19 the “China virus” throughout 2022.²⁹⁷ Each tweet from Trump that mentioned “China” and “COVID” together resulted in an 8% increase in anti-Asian hate incidents and tweets with racial slurs.²⁹⁸

Politicians further fanned the flames of anti-Chinese animus by presenting China as a threat to the American way of life. A U.S. Representative from Indiana accused President Biden of “turning a blind eye to CCP spies abusing our visa system.”²⁹⁹ A U.S. Senator from Tennessee warned that “[t]he CCP is attempting to take over the USA across all industries—pushing spies into U.S. universities and buying U.S. farmland.”³⁰⁰ Vice President J.D. Vance, a former Senator from Ohio, analogized U.S. economic dependence on China to slavery when he was running for his Senate seat, stating: “When our farmers go bankrupt the Chinese who sell the fertilizer will happily buy up their land. This is the pathway to national slavery.”³⁰¹ The Washington Post and other outlets have also highlighted how “anti-Asian bigotry” is behind the new alien land laws targeting China.³⁰²

In City of Cleburne v. Cleburne Living Center, Inc., a classic case on rational basis with bite, the Court focused on the lack of “fit” between the language of a zoning ordinance and a town’s asserted objectives for denying a special permit to a group home for people with mental disabilities.³⁰³ The town claimed that the purpose of the ordinance and permit process was to avoid congestion and ensure safety in the event of a fire or flood, but the Court pointed out that the permit process did not apply to hospitals, nursing homes, dormitories, and other uses that could be expected to pose greater problems than a group home.³⁰⁴ This poor means-end fit supported the Court’s conclusion that the ordinance had an illegitimate purpose based on animus.

Similarly, the underinclusive nature of alien land laws that target countries with minimal investments in U.S. land, while omitting the countries with the largest investments, demonstrates a poor means-end fit if the asserted objectives are to protect food security and prevent absentee landownership. These laws also generally “grandfather” in ownership of existing properties, which some commentators have identified as another signal of underinclusiveness that can trigger heightened “rational basis” review.³⁰⁵

In sum, regardless of whether strict scrutiny or rational basis review applies, alien land laws targeting specific countries should be struck down. They are not rationally related to a legitimate government interest, much less narrowly tailored to a compelling government purpose, and they appear to be motivated, at least in part, by impermissible animus.

C. Preemption Concerns

Whether alien land laws are preempted by federal law is another important constitutional question. This Section explores whether alien land laws are preempted by federal immigration laws, the federal government’s national security and foreign affairs powers, and the CFIUS and USDA reporting regimes.

1. Immigration Preemption

The Immigration Act of 1952 established “a comprehensive federal statutory scheme for regulation of immigration and naturalization” and set “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.”³⁰⁶ Supreme Court precedents indicate that alien land laws restricting noncitizens who have already been admitted to the U.S. may be preempted by federal immigration law. In Takahashi, the Supreme Court explained that “[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with [the] federal power to regulate immigration, and have accordingly been held invalid.”³⁰⁷ Both Takahashi, and an earlier case, Truax v. Raich, struck down state laws limiting the employment of lawfully present noncitizens by reasoning that federal immigration law granted a “privilege to enter and abide in ‘any state in the Union,’ ” and that denying the right to work would be “tantamount to . . . deny[ing] them entrance and abode.”³⁰⁸

In Richardson, the Supreme Court confirmed that states may not impose an “auxiliary burden[] upon the entrance or residence of aliens” that Congress had never contemplated.³⁰⁹ Restrictions on ownership of real property impose precisely this type of auxiliary burden. Certainly, Congress never contemplated that lawful permanent residents would be encumbered by ownership restrictions. With respect to temporary immigrants (i.e., “nonimmigrants”), Congress required certain classes, such as tourists, students, and crewman, to maintain a residence abroad that they had no intent of abandoning.³¹⁰ But for other classes of temporary immigrants, Congress did not impose any such requirement.³¹¹ The Supreme Court has interpreted this silence “to mean that Congress . . . was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile.”³¹² If every state could prohibit temporary immigrants from buying—or potentially even leasing—property, the doors of the United States would effectively be closed to when Congress permitted them to establish domicile here.³¹³ As a federal court in Texas recognized, “[r]estrictions on residence directly impact immigration in a way that restrictions on employment or public benefits do not.”³¹⁴

While lawfully admitted immigrants may have the strongest argument for immigration preemption, courts have also struck down state laws that discriminate against undocumented individuals in housing as preempted by federal immigration law.³¹⁵ For example, in Villas at Parkside Partners v. City of Farmers Branch, the Fifth Circuit found that immigration law preempted a local ordinance that prohibited renting to individuals who are not “lawfully present.”³¹⁶ The court reasoned that Congress contemplated that such individuals would reside in the United States until potential deportation and even required them to provide a reliable address to the federal government.³¹⁷ Additionally, the court noted that deciding whether someone is “lawfully present” requires a complex analysis and should be made only by federal immigration officials.³¹⁸ The same reasoning would support striking down Louisiana’s newly enacted alien land law, which exempts noncitizens who are “lawfully present in the United States” and would therefore require a state official to make a determination about someone’s legal status.³¹⁹

Additionally, in City of Farmers Branch, the court was concerned about the immigration classification in the local ordinance being “at odds” with a much more nuanced federal regime.³²⁰ Some of the proposed and enacted alien land laws raise similar concerns by using terms that conflict with immigration law. For example, Minnesota’s law defines a “permanent resident alien” to include not only someone who is a lawful permanent resident, but also a nonimmigrant treaty investor.³²¹ A bill proposed in West Virginia defined a “nonresident alien” as someone who is neither a U.S. citizen nor a lawful permanent resident. Under that definition, all sorts of noncitizens would be swept into the restriction, even if they live in West Virginia.

Finally, the registration and reporting requirements found in some alien land laws may be preempted by immigration law. In Hines v. Davidowitz, the Supreme Court found that immigration law preempted a Pennsylvania statute requiring adult aliens to register with the state, pay a fee, and carry an ID.³²² Likewise, in Arizona v. United States, the Court stressed that “the Federal Government has occupied the field of alien registration.”³²³ The Court explained that “[t]he federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance.”³²⁴ A state law that requires certain noncitizens to register their property, and penalizes them for failing to do so, is not far afield from one requiring noncitizens to register themselves, especially since the same personal information must be provided.

The arguments presented above all involve noncitizens who are in the United States. The major group omitted from this analysis of preemption by federal immigration laws are noncitizens abroad. But the other bases for preemption, discussed below, would apply to that group.

2. Foreign Affairs Preemption

The Constitution entrusts foreign affairs powers exclusively to the federal government.³²⁵ Foreign affairs preemption serves several purposes: it constrains a state’s ability to offend a foreign country, which could lead to hostilities; it promotes unity in the nation’s external affairs; and it furthers the effective exercise of foreign policy.³²⁶ Yet, as the history of alien land laws shows, states have long engaged with issues that affect foreign nationals.³²⁷

The Supreme Court has provided different versions of the test for determining whether a state law impermissibly interferes in foreign affairs. In American Insurance Ass’n v. Garamendi, which struck down California’s “Holocaust-era” insurance legislation, the Court framed the issue as whether the state law is likely to produce “more than [an] incidental effect in conflict with express foreign policy.”³²⁸ In Zschernig, the Supreme Court invalidated an Oregon probate law that permitted states courts to withhold remittances to nonresident aliens residing in Communist countries.³²⁹ Even though states traditionally have the power to regulate estates and probate, the Court found that the Oregon law “affect[ed] international relations in a persistent and subtle way.”³³⁰ There, the Court framed the test as whether the state law “impair[s] the effective exercise of the Nation’s foreign policy.”³³¹ And in Crosby v. National Foreign Trade Council, which struck down a Massachusetts law that barred state agencies from purchasing goods or services from companies doing business with Burma, the Court considered whether the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of [federal policy].”³³²

Applying these cases to alien land laws, the question is whether, or to what degree, they conflict with U.S. foreign policy or pose an obstacle to the objectives of foreign policy. Do they merely have an incidental impact on foreign affairs, or is the effect more material? While the answer will likely depend on the specifics of a particular law, it is also worth considering the cumulative impact of these alien land laws on foreign affairs. If every state prohibited citizens of China from buying property, the impact on foreign relations would be far more significant than if only a few did so.

State laws that unilaterally identify certain nations as “countries of concern” or “foreign adversaries,” with no reference to a federal law, are particularly likely to raise foreign affairs preemption concerns. Like the Massachusetts law struck down in Crosby, these state laws are making a judgment about the conduct of a foreign country that is “apart from the federal government’s own announced judgment.”³³³ Even if the countries identified by the state law are currently consistent with a federal designation, federal law expressly contemplates those designations changing over time, and state laws may not keep up with them.³³⁴ Some lower courts have already expressed preemption concerns about state laws that are directed at particular nations, noting that they can be perceived as a unilateral declaration of “economic war,”³³⁵ or a “political statement” about the country.³³⁶ As one court recognized, the potential effect on international relations is greater when a state targets a specific country instead of regulating all noncitizens regardless of nationality.³³⁷

Additionally, the countries identified by name in the new wave of alien land laws are already subject to individualized sanctions by the federal government. Several Presidents have issued Executive Orders and Congress has passed laws imposing unique sanctions against China,³³⁸ Iran,³³⁹ North Korea,³⁴⁰ and Russia,³⁴¹ among other countries. Just like the sanctions against Burma discussed in Crosby, the laws addressing sanctions against these countries give the President flexible authority over what sanctions to impose and empower the President to waive any sanctions in the interest of national security. In Crosby, the Court reasoned that Congress would not have “gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.”³⁴²

Like the Massachusetts law in Crosby, alien land laws that target countries subject to federal sanctions “impos[e] a different, state system of economic pressure,” “penalize[] some private action that the federal [laws] . . . may allow, and pull[] levers of influence that the federal [law] does not reach.”³⁴³ The restrictions imposed by the alien land laws also make it impossible for the President “to restrain fully the coercive power of the national economy” by lifting or promising to lift sanctions, which leaves the President with “less to offer and less economic and diplomatic leverage as a consequence.”³⁴⁴ These state laws could also conflict with the federal sanctions scheme by flatly prohibiting financial transactions that the OFAC might permit with a license.³⁴⁵

When Congress wanted state and local governments to play a role in sanctioning a country such as Iran, Congress explicitly authorized them to do so.³⁴⁶ The 2010 Comprehensive Iran Sanctions, Accountability, and Divestment Act specified what form such state sanctions could take (divestment from companies that invest $20 million or more in Iran’s energy section), stated that such laws were not preempted, and protected due process by requiring notice and the opportunity for a hearing.³⁴⁷ Without this explicit congressional authorization, however, such sub-federal sanctions would likely be preempted by either the statute or executive action.³⁴⁸

Alien land laws that avoid naming specific countries but rely on various federal designations raise similar preemption concerns. The federal government has already determined the unique purposes and consequences of each of these designations. Adding restrictions involving real property ownership to whatever consequences the federal government has already imposed interferes with the federal scheme. For example, if the Secretary of State designates a country as “of particular concern,” Congress has authorized fifteen specific “Presidential Actions” that may be imposed on such designated countries, as well as any “commensurate action.”³⁴⁹ The President is also authorized to waive the application of any action.³⁵⁰ State laws that restrict real property ownership by citizens or entities of these “countries of particular concern” add consequences that were never contemplated by Congress and that can undermine the President’s decisions.

The variation among the countries included in each federal list underscores the deliberate decisions made by federal actors about how each country should be classified based on specific foreign policy objectives. State laws that use these classifications in a completely different context distort their purpose. This preemption argument is especially strong where the federal law constrains the context in which a particular term may be used. For example, federal regulations specify that the Secretary of Commerce’s classification of certain countries as “foreign adversaries” is “solely for the purposes of ” a particular executive order.³⁵¹

Individually and collectively, alien land laws that target specific countries, either by name or based on a federal list developed for another context, “compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments.”³⁵² As the Court explained in Crosby, “the President’s maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.”³⁵³

Although the argument for foreign affairs preemptions seems strong based on these Supreme Court precedents, the U.S. Department of Justice surprisingly did not assert preemption in a Statement of Interest that it submitted in the case challenging Florida’s alien land law.³⁵⁴ Its failure to do so was noted by the district court in rejecting the plaintiffs’ preemption argument.³⁵⁵ Given the weight that courts give to the federal government’s own position on preemption, the Department of Justice’s position could prove fatal to preemption arguments in other cases as well. However, in the recent Shen case, even with the silence of the federal government, the Eleventh Circuit Court of Appeals granted a preliminary injunction based on CFIUS regulation of real estate transactions.³⁵⁶

3. The CFIUS and USDA Regimes

Concerns about foreign interests in real property are not unique to States. At the federal level, there are two avenues to rein in foreign investment: data collection on foreign interests in agricultural lands by the USDA and the review of certain transactions via CFIUS. These federal regimes may preempt state restrictions on foreign investment.

i. Reporting to USDA

The Agricultural Foreign Investment Disclosure Act of 1978 (“AFIDA”) established a framework to collect reported data on foreign ownership of agricultural land.³⁵⁷ Unfortunately, the system has not been properly implemented. Inaccuracies and underreporting have been pointed out.³⁵⁸ These critiques of the incompleteness and lack of transparency of the USDA reporting system have prompted Congress to include in the Consolidated Appropriations Act for the 2023 Fiscal Year (“FY”) a mandate to USDA to report on the impact that foreign investment has on family farms, rural communities, and the domestic food supply.³⁵⁹ The Government Accountability Office is expected to issue a report on the AFIDA and USDA reporting frameworks. There are several bills being discussed in the 2023–2024 congressional term seeking to ensure compliance with AFIDA. The Not One More Inch or Acre Act would ensure higher penalties for not complying with AFIDA.³⁶⁰ Under current law, persons who have violated AFIDA are subject to a fine of up to twenty-five percent of the foreign person’s interest in the agricultural land. This bill would make the minimum fine to be ten percent. House Resolution (“H.R.”) 1789 would require the penalty to be “at least [fifty] percent” of the market value of the land.³⁶¹ S.B. 2060 (Foreign Agricultural Restrictions to Maintain Local Agriculture and National Defense Act)³⁶² would require USDA to investigate efforts to steal agricultural knowledge and technology and to disrupt the U.S. agricultural sector. S.B. 2060 would also made the Secretary of Agriculture a member of CFIUS.

ii. CFIUS

CFIUS is a system for monitoring and, if necessary, blocking foreign investments that threaten national security.³⁶³ Established by President Ford in 1975, CFIUS is an interagency committee, chaired by the U.S. Department of Treasury.³⁶⁴ If CFIUS determines that an investment poses a threat to national security, the President can block or unwind the transaction. National security is not defined for CFIUS’s purposes, leaving it open to discretion.³⁶⁵

CFIUS originally focused only on foreign investment in U.S. businesses, without reviewing any real estate transactions. But in 2018, the Foreign Investment Risk Review Modernization Act (“FIRRMA”) expanded CFIUS and the President’s authority to review and block “certain types of real estate transactions involving the purchase or lease by, or a concession to, a foreign person.”³⁶⁶ CFIUS only has authority over real estate transactions that are in or around airports and maritime ports, or that are close to certain designated military installations. FIRRMA recognized that the President may want to consider factors such as “the relationship of [the investor’s] country with the United States” and “the adherence of the subject country to nonproliferation control regimes” in deciding whether to block a transaction.³⁶⁷

CFIUS’s jurisdiction also excludes transactions involving a single housing unit or real estate in urbanized areas.³⁶⁸ Small real estate investments are not expected to have a significant impact on national security and may not encourage large investments. Certain transactions must be reported, such as those involving a foreign government or any other transaction that CFIUS’s regulation mandates, while others fall under voluntary reporting. Real estate transactions so far have not been subject to mandatory reporting, suggesting that Congress did not consider them a national security threat. Control of critical infrastructure does trigger an investigation by CFIUS,³⁶⁹ but agriculture and food systems are not specifically identified as critical infrastructure. Bills that Congress considered but did not pass would have made that connection clear.³⁷⁰ In 2022, President Biden instructed CFIUS to consider the implications of foreign investment for food security.³⁷¹

For transactions under the purview of CFIUS, CFIUS is a ceiling and states cannot strengthen the regime by imposing additional obstacles. Hence, the provisions of new alien land laws overlapping with CFIUS are preempted because they could constitute an obstacle for federal enforcement.³⁷² Because of its limited jurisdiction, CFIUS would not have the authority to review many of the individual real estate transactions prohibited by state alien land laws. For example, as noted above, CFIUS found that it did not have jurisdiction to review a Chinese food manufacturing company’s purchase of 370 acres located twelve miles from the Grand Forks Air Force Base in North Dakota.³⁷³ That air force base was not on CFIUS’s list of designated military installations. Additionally, as a practical matter, CFIUS’s review of real estate transactions is negligible. In 2022, CFIUS reviewed 285 notices of non-real estate transactions, and only one notice of a real estate transaction.³⁷⁴ But still CFIUS may operate as a deterrent.

One could argue that Congress steered clear of ordinary real estate transactions in order to allow states to exercise their traditional control over land and property.³⁷⁵ On the other hand, Congress’s decision to include certain transactions while omitting others may reflect a carefully calibrated consideration of national security and economic interests, in which case states should not be allowed to disturb the delicate balance struck by Congress.³⁷⁶ Of course, if Congress had perceived alien land laws as conflicting with federal law (the CFIUS regime), it could have taken some action. So far, however, Congress has done nothing to impede states from implementing such laws. When Congress amended FIRRMA in 2018, at least fifteen states had alien land laws,³⁷⁷ and Congress did not indicate any intent to displace those laws in the amended Act. However, in past years, bills were introduced at the federal level that would have expanded CFIUS’s jurisdiction over real estate transactions,³⁷⁸ or outright prohibited citizens of China, Russia, North Korea, or Iran from purchasing land.³⁷⁹ While the CFIUS regime is limited, states’ unilateral actions singling out certain countries threaten the unified position that CFIUS enshrines with respect to both adversaries and allies.³⁸⁰

The Eleventh Circuit Court of Appeals in the case challenging Florida’s S.B. 264 granted a preliminary injunction in favor of two of the plaintiffs and based the “likelihood of success” on the merits on the potential preemption of S.B. 264 by the carefully crafted balance of CFIUS review under FIRRMA for real estate transactions, including those near military installations.³⁸¹

D. Dormant Commerce Clause

1. Interstate Commerce

While the Commerce Clause gives power to the federal government to regulate commerce between the states, it has also been interpreted as a limit on state action. Unlike preemption doctrine, which asks whether a state law conflicts with a federal law or whether Congress has occupied the field, the Dormant Commerce Clause prohibits state or local action that restricts interstate commerce even in the absence of congressional action. The goal of the Dormant Commerce Clause doctrine is to prevent “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.”³⁸²

Some alien land laws violate the Dormant Commerce Clause by treating out-of-state actors differently than in-state actors in ways that have a negative impact on interstate commerce. The disparate treatment between in-state and out-of-state residents in North Dakota’s new law is the clearest example. North Dakota’s law disadvantages noncitizens who are either abroad or in another state. It requires noncitizens who are not permanent residents or otherwise exempted to reside in the state for ten months a year. It also exempts those who actively participate in the management of the agricultural operation, which could allow someone to comply with the restrictions without being present in the state.³⁸³ A noncitizen who stops fulfilling these requirements must dispose of the property. A foreign person who moves to another state then cannot hold land while a similarly situated foreign person in North Dakota can.

Another example is the initial version of an Oklahoma bill, which exempted “any alien who is or shall become a bona fide resident of the State of Oklahoma” from the restrictions on ownership.³⁸⁴ Such a provision explicitly treats noncitizens living in another state differently than noncitizens residing in Oklahoma, which would trigger strict scrutiny under the Dormant Commerce Clause.³⁸⁵ Oklahoma likely recognized the Dormant Commerce Clause issue, because the final version of its rule pronounced that “the requirements of this subsection shall not apply to a business entity that is engaged in regulated interstate commerce in accordance with federal law.”³⁸⁶

Courts have struck down similar restrictions on landownership that favor in-state residents. For example, in Jones v. Gale, the Eighth Circuit invalidated a Nebraska initiative that amended the state constitution to ban corporations from owning farmland, with an exception for family farm businesses in which at least one family member resided or worked on the farm.³⁸⁷ The court found that this amendment favored Nebraska residents in violation of the Dormant Commerce Clause.³⁸⁸ Alien land laws that apply restrictions without differentiating based on residence in the state are much more likely to survive a Dormant Commerce Clause analysis.

2. Foreign Commerce

Restrictions on foreign ownership of land have a more obvious effect on international trade than they do on interstate commerce because noncitizens abroad are clearly targeted.³⁸⁹ North Dakota’s law, for example, allows noncitizens to buy agricultural land only if they reside in the state, while U.S. citizens and permanent residents can own agricultural land there regardless of where they live. While no country is singled out in North Dakota’s law, those countries without a treaty of friendship with the United States will be the ones whose citizens will be most affected.³⁹⁰

The Dormant Foreign Commerce Clause operates similarly to the interstate Dormant Commerce Clause, but state laws burdening foreign commerce are subjected to more demanding scrutiny.³⁹¹ When it comes to regulating foreign commerce, the Supreme Court has stressed that state laws should not “prevent this Nation from ‘speaking with one voice.’ ”³⁹² In the seminal case Japan Line, Ltd. v. County of Los Angeles, the Court highlighted the “acute” risk of retaliation by Japan for California’s imposition of a tax rule that deviated from international practice, observing that such retaliation “would be felt by the Nation as a whole,” not just by California.³⁹³

In subsequent cases, however, the Court has acknowledged the difficulty in determining “precisely when foreign nations will be offended by [a] particular act[]” or whether they might retaliate.³⁹⁴ The Court has also upheld state taxes on foreign entities by reasoning that no coherent federal policy exists.³⁹⁵

Under the Dormant Foreign Commerce Clause, it may be hard to demonstrate a uniform federal policy on foreign land ownership, since the federal government has traditionally entered into bilateral treaties with specific countries when it wanted to override state restrictions on foreign ownership of land.³⁹⁶ Additionally, in Barclays, the Supreme Court suggested that congressional inaction indicates acquiescence to differing state laws.³⁹⁷

Alternatively, courts may rely on the Supreme Court’s position in South-Central Timber Development, Inc. v. Wunnicke,³⁹⁸ which allows states to escape scrutiny under the Dormant Commerce Clause only if they are market participants themselves. For example, states could be acting as market participants when they are regulating state public lands, or when Congress has expressly excluded a state law from Dormant Commerce Clause scrutiny.³⁹⁹ In some cases, the Court has not considered references to state power over a resource, like water, in federal laws⁴⁰⁰ or in treaties⁴⁰¹ enough to conclude that Congress has excluded the application of the Dormant Commerce Clause to states. Accordingly, acknowledgement of state power to regulate property is an inadequate basis for refusing to apply the Dormant Foreign Commerce Clause when state laws discriminate against noncitizens abroad.

CONCLUSION

While each wave of alien land laws has responded to unique historical events, xenophobia of some kind undergirds them all. The current wave is no different. The dominant narratives that have fueled such bills involve members of the Chinese Community Party buying land to either spy on U.S. military bases or to “undermine American agriculture and control the global food supply.”⁴⁰² These narratives reflect a few salient examples of Chinese investments near military bases, but they have nothing to do with most foreign investment in the U.S. This Article has argued that one of the most significant weaknesses of these new laws is the complete lack of fit between the objectives asserted and the means being used to achieve them. This lack of means-end fit, combined with the availability of less restrictive alternatives, is highly relevant to both the equal protection analysis and the Fair Housing Act disparate impact analysis.

As legal cases challenging these new laws start percolating through the court system, the Supreme Court may eventually need to decide whether it will stand by hundred-year-old precedents upholding alien land laws that were based on explicitly racist naturalization eligibility criteria—rules that prohibited Asians from becoming U.S. citizens. The time has come for those cases to be overturned. But overturning them will likely require the Court to clarify certain unanswered questions in equal protection doctrine regarding alienage discrimination, such as whether strict scrutiny applies to all classes of noncitizens and whether the political functions exception to strict scrutiny can be extended to landownership.

Courts may also decide to avoid the thorny equal protection questions by striking down alien land laws on preemption grounds instead. However, the various arguments for preemption discussed here involve their own hurdles. Preemption under immigration law would likely be limited to noncitizens who have already been admitted to the U.S. Foreign affairs preemption seems particularly promising, but the federal government’s decision not to argue preemption in the recent Florida case to date may undermine that claim. A Dormant Foreign Commerce Clause argument is also strong, but courts may still be reluctant to invalidate a law related to traditional state powers over property based on interference with commerce.

There is also a chance that Congress will enact new laws in the near future addressing foreign ownership of land, as several such bills have already been proposed.⁴⁰³ Depending on the substance of a federal law, this could either make it harder or easier to challenge property restrictions related to national origin. In FY 2024, the House proposed a bill that would “prohibit the purchase of agricultural land located in the United States by nonresident aliens, foreign businesses, or any agent, trustee, or fiduciary associated with Russia, North Korea, Iran, or the Communist Party of China.”⁴⁰⁴ If the federal government decides to pass a law like this that singles out certain countries, it would be harder to challenge than a similar state law, as rational basis review, rather than strict scrutiny, applies to alienage classifications by the federal government.⁴⁰⁵ Additionally, the Dormant Commerce Clause and preemption arguments would disappear, since they only constrain states.

The enactment of federal legislation would, however, bolster arguments that state laws are preempted. A federal law that did not single out specific countries and instead set some general limits on foreign land ownership across the board, such as a limit on the amount of U.S. land that a noncitizen abroad or foreign business may own, could have a positive effect by displacing state laws that impose much more discriminatory restrictions.

A third possibility is that Congress could explicitly embrace a cooperative approach, specifying that the newly enacted federal legislation does not prohibit states from passing their own laws on foreign ownership of real property. Because this approach would potentially permit discriminatory state laws, it would be wise for Congress to at least set some constraints regarding what types of state restrictions would be permissible to prevent a race to the bottom.

At the end of the day, states and the federal government should be wary of the harm that exclusionary laws inflict. Laws that draw distinctions based on national origin or citizenship are likely to lead to racial or ethnic profiling by realtors, lenders, and others involved in real property transactions, as well as to subordinate minorities more generally. These laws are especially apt to exacerbate discrimination against Asian Americans, Iranians, and others who are already subject to discrimination. Long ago, the Supreme Court recognized that if states were allowed to deny immigrants the right or live and work in their borders, immigrants “would be segregated in such of those States as chose to offer hospitality.”⁴⁰⁶ Alien land laws open the door to this type of segregation.

Property ownership is a crucial means of achieving both financial and social mobility; it provides access to schools, jobs, culture, and community. Restricting property rights has therefore been used as a tool throughout history to disempower certain groups, including women and racial minorities. When we deprive noncitizens of property rights, we prevent hardworking immigrants from achieving the American Dream.

98 S. Cal. L. Rev. 305

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Fatma Marouf*

* Professor of Law, Texas A&M University School of Law. I would like to thank the participants of the Asian American Pacific Islander (AAPI) and Middle Eastern North African (MENA) Women in the Legal Academy Workshop, hosted by CUNY School of Law, as well as the participants of the Clinical Writers’ Workshop hosted by NYU School of Law, for their valuable feedback on a draft of this piece.

Vanessa Casado Pérez†

† Professor of Law, Texas A&M University School of Law, Research Professor, Texas A&M Department of Agricultural Economics. I would like to thank the participants at the Rural West Workshop and Grayson Ford for his research assistance. We are grateful for the hard work of the Southern California Law Review editors.

Eighth Amendment Stare Decisis

April 2025April 2025William W. Berry III*

In 2008, the United States Supreme Court decided Kennedy v. Louisiana, holding that the Eighth Amendment barred death sentences for the crime of child rape because such punishments were cruel and unusual. In 2023, Florida passed a statute that directly contravenes this constitutional rule. Under the Florida statute, committing sexual battery against a child is a capital offense.

The Court’s description of the scope of stare decisis stems from its abortion cases. The Court initially explained stare decisis in Planned Parenthood of Southeastern Pennsylvania v. Casey but arguably loosened its meaning in its decision in Dobbs v. Jackson Women’s Health Organization. Indeed, the Court’s decision in Dobbs, in which it reversed the fifty-year-old precedent of Roe v. Wade and its successor Casey, suggests that the Kennedy case could face a similar fate.

But the Eighth Amendment contains substantive doctrinal characteristics that suggest it is unique with respect to stare decisis. In particular, the Eighth Amendment’s relationship to stare decisis is unusual because the premise of the underlying doctrine is that the meaning of the Amendment will change over time. Pursuant to “the evolving standards of decency that mark the progress of a maturing society,” the Eighth Amendment expands over time to bar punishments formerly constitutional but now determined to be draconian.

As such, there become two possibilities with respect to applying stare decisis under the Eighth Amendment. First, stare decisis could mean what it means in other contexts—deferring to precedent and refusing to overrule a prior decision unless it rises to the level of the test previously set forth in Casey and now articulated in Dobbs. Alternatively, stare decisis could mean following the evolving standards of decency doctrine. This approach contemplates that the Amendment would change over time, such that stare decisis would require the overruling of precedent, moving the case law in a progressive, less punitive direction.

This Article argues for the latter reading. Specifically, the Article makes the novel claim that the Eighth Amendment has its own unique stare decisis doctrine, the doctrine moves in one direction, and such a reading of the Eighth Amendment is consistent with the Court’s decision in Dobbs.

In Part I, the Article explores the origins of the unique doctrine of Eighth Amendment stare decisis. Part II examines past and future applications of this doctrine. Finally, in Part III, the Article explains why the Court’s decision in Dobbs supports Eighth Amendment Stare Decisis.

All bad precedents have originated from good measures.

—Julius Caesar¹

INTRODUCTION

In 2008, the United States Supreme Court decided Kennedy v. Louisiana, holding that the Eighth Amendment barred death sentences for the crime of child rape because such punishments were cruel and unusual.² In 2023, Florida passed a statute that directly contravenes this constitutional rule.³ Under the Florida statute, raping⁴ a child is a capital offense.⁵

In a vacuum, one might expect the Court to strike down Florida’s statute as clearly unconstitutional in violation of the Eighth Amendment based on the principle of stare decisis. Traditionally, the concept of stare decisis has referred to the obligation of the Court to follow prior precedent.⁶ A concept central to the rule of law, stare decisis presumes the binding nature of a prior decision, except under certain circumstances that allow for the reversing of the precedent to remedy an incorrect decision.⁷

The Court’s description of the scope of stare decisis stems from its abortion cases. The Court initially explained stare decisis in Planned Parenthood of Southeastern Pennsylvania v. Casey,⁸ but arguably loosened its meaning in its decision in Dobbs v. Jackson Women’s Health Organization.⁹

In Casey, the Court explained that while stare decisis is “not an ‘inexorable command,’ ”¹⁰ its application relates to “a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law.”¹¹ Specifically, the Court examined (1) whether the central rule has become unworkable;¹² (2) whether the Court could remove the rule’s limitation on state power without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it;¹³ (3) whether the law’s growth in the intervening years has left the precedent’s central rule a doctrinal anachronism discounted by society;¹⁴ and (4) whether the precedent’s premises of fact have so far changed as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.¹⁵

But in Dobbs, the Court adjusted the stare decisis test, using a five-factor inquiry in deciding to overrule Roe v. Wade and Casey.¹⁶ Specifically, the Court examined (1) the nature of the court’s error, (2) the quality of its prior reasoning, (3) the workability of the current standard, (4) the effect on other areas of law, and (5) the reliance interests in the precedent.¹⁷ One way to read this shift is as a means of freeing the Court to reverse precedents it thinks are normatively incorrect.

Indeed, the Court’s decision in Dobbs,¹⁸ in which it reversed the fifty-year-old precedents of Roe v. Wade¹⁹ and its successor Casey,²⁰ suggests that the Kennedy case could face a similar fate if the Court normatively disagrees with the outcome in that case.²¹ A more open-ended view of stare decisis, in which the Court places more weight on getting the “right” answer as opposed to following its precedent, could incentivize the Court to focus on policy over precedent.²²

Likewise, a cursory glance at the Supreme Court’s Eighth Amendment cases suggests that the principle of stare decisis may carry less weight in this context.²³ For instance, the Court reversed its decisions in Penry v. Lynaugh²⁴ and Stanford v. Kentucky²⁵ a mere thirteen and sixteen years later in Atkins v. Virginia²⁶ and Roper v. Simmons, ²⁷ respectively.

But the Eighth Amendment contains substantive doctrinal characteristics that suggest it is unique with respect to stare decisis. In particular, the Eighth Amendment’s relationship to stare decisis is unusual because the premise of the underlying doctrine is that the meaning of the Amendment will change over time.²⁸ Pursuant to “the evolving standards of decency that mark the progress of a maturing society,” the Eighth Amendment expands over time to bar punishments formerly constitutional but now determined to be draconian.²⁹

As such, two possibilities exist for applying stare decisis to Eighth Amendment decisions. First, stare decisis could mean what it means in other contexts—deferring to precedent and refusing to overrule a prior decision unless it rises to the level of the test previously set forth in Casey and now articulated in Dobbs. Alternatively, stare decisis could mean following the evolving standards of decency doctrine. This approach contemplates that the Amendment would change over time, such that stare decisis would require overruling of precedent, moving the case law in a progressive,³⁰ less punitive direction.³¹

This Article argues for the latter reading. Specifically, the Article advances the novel claim that the Eighth Amendment has its own unique stare decisis doctrine, the doctrine moves in one direction, and such a reading of the Eighth Amendment is consistent with the Court’s decision in Dobbs.

I. ORIGINS OF EIGHTH AMENDMENT STARE DECISIS

Stare decisis, at its core, reflects a commitment to the rule of law.³² A vestige of the common law, the idea relates to honoring past decisions for the sake of predictability and consistency.³³ Cases with difficult factual situations challenge this paradigm.³⁴ When a rule of law generates unfair or inequitable outcomes, courts often elect to change the rule or distinguish the case such that the rule becomes inapplicable.³⁵

A more consequential decision, however, relates to a decision to reject the rule itself and replace the rule with a new one.³⁶ Courts seem hesitant to engage in such a rejection of stare decisis without a strong normative reason for doing so.³⁷

Interpreting constitutional language adds an additional wrinkle to the stare decisis calculation.³⁸ The Court has noted that stare decisis should carry less weight in the constitutional context.³⁹ This is precisely because the Court is responsible for defining the scope and meaning of the Constitution, which often includes open-ended language.⁴⁰ The inability to easily amend the federal Constitution means that the Court’s interpretation is not subject to review and will change only when the members of the Court change.⁴¹ When such decisions include placing limits on the power of state legislatures or Congress, the countermajoritarian difficulty arises.⁴²

And yet, in Marbury v. Madison, the Court made clear that its constitutional role is to engage in such judicial review, deciding who decides the scope and meaning of the Constitution.⁴³ The Court usually decides that it is its role to determine the meaning of the Constitution.⁴⁴ The Court has further explained that when it has made such determinations incorrectly, it has the responsibility to push aside the mandates of stare decisis and change the applicable constitutional rule.⁴⁵

What happens, though, when the precedent itself envisions that the rule will change over time, is different. The Eighth Amendment contemplates that the line between acceptable and unacceptable punishment will shift as society matures.⁴⁶ As such, the stare decisis tension at the heart of Casey and Dobbs dissipates. Instead, applying stare decisis means changing the rule.

A. The Evolving Standards Test

The evolving standards test originates from the 1910 case of Weems v. United States.⁴⁷ In Weems, the Court considered whether a punishment of cadena temporal—fifteen years of hard labor—for the crime of forgery constituted a cruel and unusual punishment under the Eighth Amendment.⁴⁸

In finding that the cadena temporal punishment was unconstitutional, the Court explained its approach to interpreting the Eighth Amendment:

Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.⁴⁹

The Court added that constitutional provisions “are not ephemeral enactments, designed to meet passing occasions,” but instead seek to “approach immortality as nearly as human institutions can approach it.”⁵⁰

Almost fifty years later, the Court further developed the concept that the Eighth Amendment did not contain a static meaning, but one that would change over time. In Trop v. Dulles, the Court considered the constitutionality of the punishment of loss of citizenship for wartime military desertion.⁵¹ Specifically, the Court considered whether permanently denying Trop a passport constituted a cruel and unusual punishment.⁵²

In finding for Trop, the Court explored the meaning of the Eighth Amendment.⁵³ Citing Weems, the Court echoed the idea that “the words of the [Eighth] Amendment are not precise, and that their scope is not static.”⁵⁴ As a result, “[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”⁵⁵

Having cemented the idea that the Eighth Amendment would evolve over time in a progressive way, the Court later established a test to determine whether a particular punishment violated society’s evolving standards of decency. In Coker v. Georgia, the Court developed this test in assessing whether a punishment of death for the crime of rape was constitutional.⁵⁶

As established in Coker, the Court’s inquiry contains two parts—an objective assessment and a subjective component.⁵⁷ The objective determination seeks “guidance in history and from the objective evidence of the country’s present judgment” concerning the punishment in question.⁵⁸ In Coker, the Court looked to the number of jurisdictions that allowed death sentences for the crime of rape, finding that Georgia was the only state allowing that punishment where the victim was an adult woman.⁵⁹ Its assessment of the objective indicia also included jury verdicts, which revealed that Georgia juries only imposed death sentences in six out of sixty-three cases involving the crime of adult rape.⁶⁰

After finding that the objective evidence revealed that the punishment of death for rape was inconsistent with the societal standards of decency, the Court “brought to bear” its own independent judgment concerning the constitutionality of the punishment.⁶¹ This judgment constituted an assessment of the proportionality of the punishment in light of the crime committed and the characteristics of the perpetrator.⁶² As the Court developed this subjective inquiry in later cases, it increasingly relied on the purposes of punishment—retribution, deterrence, incapacitation, and rehabilitation—to determine whether a punishment was proportionate.⁶³

Following the Court’s precedents in applying the Eighth Amendment, then, means applying the evolving standards of decency test to determine whether a punishment is cruel and unusual. It is worth noting that the Court initially cabined the application of this test to capital cases, because “death is different.”⁶⁴ It subsequently expanded the test to include juvenile life-without-parole sentences, because “children are different too.”⁶⁵

Practically, this means that stare decisis—following prior precedent—contemplates changing the rule to reflect the evolving standards of society. So, overruling a prior precedent would actually be following the doctrine when the move is from a harsher punishment to a less harsh punishment. The doctrine also makes clear, however, that this concept operates only in one direction—from more severe punishment to less severe punishment.

B. Why It Moves in One Direction

The Court’s Eighth Amendment cases demonstrate why the Eighth Amendment only changes in one direction—with increasing limits on the power of state and federal governments to impose draconian punishments. In particular, the Eighth Amendment values of dignity and proportionality underscore this point.⁶⁶

In its decision in Trop, the Court emphasized that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”⁶⁷ In other words, when the Eighth Amendment bars a particular punishment practice, it reflects the conclusion that a particular punishment treats the defendant “as an object”⁶⁸ beyond what society deems as “civilized, decent, and virtuous.”⁶⁹

The Court has made clear that it “look[s] to the evolving standards of decency that mark the progress of a maturing society” to “enforce” this “duty of the government to respect the dignity of all persons.”⁷⁰ If the society matures to find a formerly acceptable form of punishment to violate a person’s dignity, then the punishment cannot, by definition, become constitutional again at some later date. Indeed, an undignified punishment or a punishment that objectifies an inmate cannot, at a later date, magically become dignified or civilized, decent, and virtuous. If the “Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be,” as the Court has explained, that means that over time, the United States will discard more draconian forms of punishment in favor of more humane ones.⁷¹

A change operating in the other way, from less severe punishment to more severe punishment, contravenes the core principle of the evolving standards.⁷² The evolving standards “mark the progress of a maturing society,” and increasing punishment severity undercuts that very progress.⁷³ This is particularly true concerning the punishments at issue—the death penalty and life without parole. Many states⁷⁴ and Western nations⁷⁵ have abandoned the death penalty, and the United States remains the only nation that allows juvenile life-without-parole sentences.⁷⁶ Undoing limits on punishments that most of the rest of the civilized world abolished long ago would reflect a move away from societal maturation and instead embrace societal savagery. Such a move would be the antithesis of promoting human dignity.

A second principle that the Court has linked to the evolving standards of decency—proportionality—similarly demonstrates why the Eighth Amendment only moves in one direction. The Court has explained that the evolving standards test is a tool by which to measure “the requirement of proportionality contained within the Eighth Amendment.”⁷⁷ As with dignity, the Court has long emphasized the concept of proportionality as “central to the Eighth Amendment.”⁷⁸ That means that when the Court bars particular punishments under the Eighth Amendment, it is because the punishment is excessive in light of the characteristics of the offense⁷⁹ or the characteristics of the offender.⁸⁰

Under the evolving standards test, the proportionality inquiry looks at the objective indicia of national consensus in that the sentence is excessive in light of what other jurisdictions permit and impose.⁸¹ And under the subjective indicia, the Court assesses whether the sentence is disproportionate in light of the purposes of retribution, deterrence, incapacitation, and rehabilitation.⁸²

For a barred punishment to again be constitutionally permissible, it would mean that the consensus against the punishment has reversed. Such a scenario is unlikely because it would involve states implementing punishment practices in violation of the Constitution. One or more states, like Florida and Tennessee currently, might engage in a barred punishment practice, but such actions would not be enough to create a consensus to allow that kind of punishment again.⁸³

In addition to a change in national consensus, a reversal would also mean that the concept of proportionality would have a fickle application. When a punishment is excessive, whether in light of retribution or one of the utilitarian purposes of punishment, it cannot magically become proportionate again. The argument would be that the initial determination was incorrect, that the Court defined a proportionate punishment as a disproportionate one.

The cautiousness of the Court’s evolving standards doctrine, though, makes such a claim less persuasive. All of its decisions to find punishments disproportionate under the Eighth Amendment have first found a majoritarian objective consensus⁸⁴ against the punishment in question before also finding the punishment disproportionate in its own subjective judgment.⁸⁵

A view of the Eighth Amendment as moving only in a more progressive direction is also consistent with its original meaning.⁸⁶ As John Stinneford has explained, the concept of “unusual” reflects a notion of longstanding usage.⁸⁷ Drawing on the writings of Edward Coke as well as the common law, this original understanding reflected a proscription against cruel innovation—the adoption of newer methods of harsh punishment.⁸⁸ The idea is that moving in a harsher direction undoes the original Eighth Amendment meaning of contrary to long usage, even if the evolving standards evolved in a more punitive direction.⁸⁹ Under either an evolving standards reading or under an originalist reading, then, it is clear that the Eighth Amendment can change in only one direction—expanding to bar harsh punishments.

II. APPLICATIONS OF EIGHTH AMENDMENT STARE DECISIS

While not describing its application of the Eighth Amendment as a unique form of stare decisis, the Court has nonetheless followed this approach on several occasions. And, as discussed, the national consensus continues to evolve.

A. Past Applications

Arguably, the first application of the concept of evolving stare decisis was outside of the Eighth Amendment, before the Court articulated the details of its test in Coker. But the discussion begins here because the sentiment is the same—promoting a more progressive, humane form of punishment by placing constitutional limits on a draconian one.

1. McGautha and Furman

In 1971, the Court considered the constitutionality of the death penalty in two companion cases, McGautha v. California⁹⁰ and Crampton v. Ohio.⁹¹ These challenges made Fourteenth Amendment claims, specifically that the procedures used to impose the death sentences violated due process.⁹² Both claimed that the lack of guidance given to the jury determining the sentence allowed the imposition of the death sentence without any governing standards.⁹³ Crampton also challenged the unitary trial procedure in which the jury determined guilt and punishment at the same time.⁹⁴

In a 6–3 decision, the McGautha court rejected petitioners’ arguments, finding that the Ohio and California sentencing procedures were constitutional.⁹⁵ Examining the history of the death penalty, the Court surmised that sentencing discretion in capital cases constituted a form of mercy, not the application of a generalizable concept or standard.⁹⁶ While recognizing the force of petitioners’ claim on a general level, the Court nonetheless emphasized the indeterminacy of the task of developing an applicable standard for capital juries.⁹⁷ It explained, “[t]o identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.”⁹⁸

Even though the criteria given to the juries in McGautha and Crampton did not do more than exercise “minimal control” of the jury’s “exercise of discretion,” the Court found it “quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.”⁹⁹ This was because “[t]he infinite variety of cases and facets to each case would make general standards either meaningless ‘boiler-plate’ or a statement of the obvious that no jury would need.”¹⁰⁰

Likewise, the Court found that the unitary trial procedure of forcing a defendant to choose between arguing innocence and arguing for mercy did not violate due process because requiring that difficult choice was not a denial of process.¹⁰¹ For similar reasons, the Court likewise concluded that the unitary trial model did not infringe upon Crampton’s Fifth Amendment privilege against self-incrimination.¹⁰²

Just a year later, the Court considered the constitutionality of the death penalty under the Eighth Amendment in Furman v. Georgia.¹⁰³ Based on similar arguments to the ones raised in McGautha, the Court held 5–4 that the death penalty was unconstitutional as applied.¹⁰⁴

Unlike the later examples of Eighth Amendment stare decisis, the decision in Furman turned on the procedure in question, not the substance.¹⁰⁵ But the idea is the same—moving from a more draconian procedure to a less draconian one. The failure to provide juries guidance on how to differentiate between murderers who should receive the death penalty and those who should not resulted in sentencing outcomes that the Court found to be random and arbitrary.¹⁰⁶ Imposing death sentences in an arbitrary and random manner was particularly troubling because “death is different”—the consequence is severe and irrevocable.¹⁰⁷

So, the decision in Furman followed the underlying principle of the evolving standards of decency—protecting the dignity of criminal defendants by preventing states from subjecting them to arbitrary, random sentencing procedures in capital cases.¹⁰⁸ The Court did not find that the death penalty itself was now cruel and unusual; instead, it was the unprincipled ways that Georgia imposed it that made it unconstitutional.¹⁰⁹ Capital punishment without any jury guidance was the prevailing practice, and the Court found that it no longer constituted a constitutional punishment.¹¹⁰

Penry and Atkins

The Court’s cases concerning whether it is constitutional to execute an intellectually disabled¹¹¹ offender provide a clear example of the application of Eighth Amendment stare decisis.¹¹² In Atkins v. Virginia, the Court reversed its decision in Penry v. Lynaugh as a matter of stare decisis because the standard of decency had changed.¹¹³

In 1989, the Court decided Penry.¹¹⁴ Penry brutally raped, beat, and stabbed Pamela Carpenter with a pair of scissors, causing her subsequent death a few hours later.¹¹⁵ A Texas jury sentenced Penry to death despite his claims of intellectual disability and insanity.¹¹⁶ As part of his habeas appeal, the Court considered whether the Eighth Amendment barred his execution in light of his intellectual disability and resulting diminished culpability.¹¹⁷

The Court found no evidence of a national consensus against the execution of intellectually disabled offenders.¹¹⁸ Only two states and the federal government barred such death sentences.¹¹⁹ Adding in the fourteen states that barred capital punishment, this meant that sixteen states barred the

execution of intellectually disabled offenders, falling short of establishing a national consensus.¹²⁰

Similarly, the Court concluded that its own subjective judgment did not bar such sentences.¹²¹ Applying the purposes of punishment, the Court held that the execution of some intellectually disabled individuals could serve the purpose of retribution—the variance among such individuals did not mean that such individuals could never act with the culpability required to receive the death penalty.¹²²

Just over a decade later, the Court considered the same question in Atkins.¹²³ It applied its evolving standards of decency test in finding that the Eighth Amendment now prohibited the execution of intellectually disabled offenders.¹²⁴

In its analysis of objective indicia, the Court found a national consensus against executing the intellectually disabled.¹²⁵ The Court noted that state legislatures had reacted to its decision in Penry as well as the execution of a different intellectually disabled inmate.¹²⁶ By 2002, thirty states barred the execution of intellectually disabled offenders, including twelve states that had abolished the death penalty.¹²⁷ This number far surpassed the number of states previously barring the punishment in question—a change from sixteen to thirty.¹²⁸ The Court also emphasized the direction of the change, a consistent move by state legislatures away from allowing the execution of intellectually disabled offenders.¹²⁹ Finally, the Court noted that states had executed only five known offenders with a known IQ under seventy since Penry.¹³⁰

With respect to the subjective indicia, the Court concluded that none of the purposes of punishment justified the execution of intellectually disabled offenders.¹³¹ The reduced culpability of intellectually disabled offenders meant that death sentences for those individuals did not satisfy the purpose of retribution.¹³² With respect to deterrence, the Court also concluded that the execution of intellectually disabled offenders was unlikely to deter other intellectually disabled individuals from committing homicides.¹³³

In overruling its decision in Penry, the Court did not address the concept of stare decisis as a hurdle that it had to overcome.¹³⁴ This is because the Court majority did not view the decision in Atkins as overturning precedent.¹³⁵ Instead, the Atkins decision followed precedent—the precedent of the evolving standards of decency doctrine—in reaching a different outcome. The decision in Atkins did not constitute an abrogation of a prior position; it constituted a foreseeable evolution in the application of a constitutional principle.¹³⁶

3. Stanford and Roper

The Court’s decision in Roper v. Simmons, three years after Atkins, provides another example of the application of Eighth Amendment stare decisis. Roper held that the execution of juveniles—offenders under the age of eighteen at the time of the homicide—violated the Eighth Amendment,¹³⁷ reversing the Court’s decision in Stanford v. Kentucky, which had allowed the execution of seventeen-year-old defendants.¹³⁸

In its first consideration of age and capital sentences, the Court held in Thompson v. Oklahoma that the execution of a fifteen-year-old defendant violated the Eighth Amendment under its evolving standards of decency test.¹³⁹ Under its objective indicia, the Court found that eighteen states set the minimum age for a capital sentence at sixteen years old.¹⁴⁰ When combined with the fourteen states that had abolished capital punishment, the Court counted thirty-two jurisdictions that barred the execution of defendants under the age of sixteen.¹⁴¹ The Court also looked to jury verdicts and found less than twenty instances of executions of individuals who committed capital crimes under age sixteen.¹⁴² And none of those verdicts had been after 1948, in the forty years prior to the case.¹⁴³

With respect to the subjective indicia, the Court highlighted the diminished culpability of juvenile offenders as a basis for finding that retribution did not support the execution of a fifteen-year-old offender.¹⁴⁴ It also found that deterrence did not support executing those under the age of sixteen who committed crimes; offenders over the age of sixteen had committed ninety-eight percent of homicides.¹⁴⁵

In Stanford v. Kentucky, the Court found that the evolving standard of decency that had reached under-sixteen-year-old offenders had not reached sixteen and seventeen-year-olds.¹⁴⁶ The Court held that the Eighth Amendment did not bar the execution of Stanford, who was seventeen when he committed murder.¹⁴⁷

With respect to the objective indicia, the Court found that most states permitted capital punishment for sixteen-year-olds.¹⁴⁸ Fifteen states rejected the death penalty for offenders under seventeen years old and twelve for offenders under eighteen years old.¹⁴⁹ The Court also rejected the evidence that few juries had sentenced under-eighteen-year-old offenders to death because so few under-eighteen-year-old offenders had committed capital crimes.¹⁵⁰

In applying the subjective indicia, the Court found no conclusive evidence supporting a determination with respect to either retribution or deterrence.¹⁵¹ And the Court did not really engage with this idea because it had found that a national consensus against executing sixteen- and seventeen-year-olds did not exist.¹⁵²

Sixteen years later, the Court decided Roper, following the same Eighth Amendment stare decisis approach used in Atkins to find that death sentences for juvenile offenders were cruel and unusual punishments.¹⁵³ As in Atkins, the application of the majoritarian objective indicia commenced with counting the state laws, and like Atkins, thirty states prohibited the execution of juvenile offenders (twelve of which banned the death penalty altogether).¹⁵⁴ Also like Atkins, the Court in Roper was assessing whether the evolving standards of decency provided enough evidence of changed circumstances to reverse its prior decision in Stanford.¹⁵⁵ The Court also noted the presence of objective evidence moving toward ending juvenile executions, although only five states (as compared to sixteen in Atkins) had abandoned the juvenile death penalty since Stanford.¹⁵⁶ Also, no state had reinstated the juvenile death penalty since Stanford.¹⁵⁷

With respect to the subjective standards, the Court developed the idea that juveniles were offenders that, by definition, possessed a diminished level of culpability.¹⁵⁸ Specifically, the Court cited (1) the lack of maturity and undeveloped sense of responsibility, (2) the susceptibility of juveniles to outside pressures and negative influences, and (3) the unformed nature of juveniles’ character as compared to adults.¹⁵⁹

In light of the diminished level of culpability, the purposes of punishment, in the Court’s view, failed to justify the imposition of juvenile death sentences.¹⁶⁰ Such death sentences failed to achieve the purpose of retribution in light of the diminished culpability.¹⁶¹ Likewise, the Court concluded that execution of juveniles did not achieve a deterrent effect—offenders with diminished capacity will be unlikely to be susceptible to deterrence.¹⁶² In addition, the Court found no evidence that a juvenile death sentence would add any deterrent value beyond that achieved by a life-without-parole sentence.¹⁶³

As with Atkins, the decision in Roper is a clear example of the principle of Eighth Amendment stare decisis. The Court followed its precedent—the evolving standards of decency—in finding that the national consensus and its subjective judgment demonstrated that the execution of juveniles constitutes a cruel and unusual punishment. As such, the decision in Roper to overrule Stanford constituted an application of Eighth Amendment stare decisis, reflecting the Court’s interpretation of the Eighth Amendment.

4. Death Is Different and Juveniles Are Different

A final important example of the Court’s application of Eighth Amendment stare decisis relates to its use in the juvenile life-without-parole context in Graham v. Florida.¹⁶⁴ Here, the Court found that a principle underlying its evolving standards of decency—differentness—had evolved to include another category of cases.¹⁶⁵

For over thirty years after Furman, the Court had cabined its application of evolving standards to capital cases.¹⁶⁶ The Court’s reasoning for this bright line focused on the idea that “death is different.”¹⁶⁷ As a punishment, death was unique both in terms of its severity—the most severe punishment available—and its irrevocability—one cannot undo a death sentence after an execution.¹⁶⁸

In Graham v. Florida, the Court considered whether the Eighth Amendment forbid life-without-parole sentences for juvenile offenders in non-homicide cases.¹⁶⁹ Building upon its decision in Roper, the Court applied the evolving standards of decency to cases of juvenile life without parole in barring such sentences in non-homicide cases.¹⁷⁰

The Court further clarified its expansion of the differentness principle to include juvenile life-without-parole cases in Miller v. Alabama, in which it struck down mandatory juvenile life-without-parole sentences under the Eighth Amendment.¹⁷¹ The Court in Miller explained that while death is different, “children are different too.”¹⁷²

As with its other applications of Eighth Amendment stare decisis, the Court in the juvenile life-without-parole cases relied on both objective and subjective understandings of the nature of juvenile offenders. The Court in Graham emphasized that only eleven states allowed life-without-parole sentences for juveniles in non-homicide cases.¹⁷³ Both cases also expanded on the conversation from Roper concerning the reduced culpability of juveniles.¹⁷⁴ Juvenile life-without-parole sentences not only make retribution and deterrence less justifiable, but also implicate incapacitation and rehabilitation, with the age of juveniles making change more possible than with older offenders.¹⁷⁵

The important point here relates to the idea that part of the evolving standards expansion includes punishments other than the death penalty. It is certainly possible that, as society evolves, other kinds of punishment, including life without parole and solitary confinement, might also violate the Eighth Amendment.¹⁷⁶

B. Distinguishable Deviations

The Court’s application of the Eighth Amendment has arguably moved in a more punitive way in a few situations, but careful examination of these cases in context shows that they are distinguishable from the concept of Eighth Amendment stare decisis and do not undermine that concept.

1. Furman and Gregg

The first example where one might argue that the Court moved in a direction favoring harsher punishment occurred when it reinstated the death penalty in Gregg v. Georgia,¹⁷⁷ four years after it had declared it unconstitutional in Furman.¹⁷⁸

The Court in Furman, however, with its per curiam opinion and five concurrences, did not rule out the future use of the death penalty.¹⁷⁹ Rather, the Court’s as-applied decision meant that the states had to remedy the flaw in the death penalty—the random and arbitrary use of it—before using it again.¹⁸⁰

Importantly, a majority of the Court did not find a consensus against the death penalty,¹⁸¹ and the response of the states—an overwhelming number immediately passing new statutes—supports the idea that, at least at that time, the evolving standard did not bar death sentences.¹⁸²

Even so, a modern examination of the Court’s decision in Gregg suggests that it is incorrect. This is because the safeguards it believed remedied the problems identified in Furman actually were insufficient to do so.¹⁸³ The number and diversity of aggravating factors that most states used in their statutes did little to narrow the class of murderers; with felony murder, almost all homicides could still be death-eligible if the prosecutor was so inclined.¹⁸⁴ Equally as important, the comparative proportionality review never occurred as promised, but instead as a diminished form of review that never included cases with life sentences.¹⁸⁵ As a result, the arbitrariness and randomness in jury outcomes persists and is perhaps even worse that it was in 1972.¹⁸⁶

2. Enmund and Tison

Another set of cases that might appear to demonstrate a move from less harsh to more harsh punishment are the Court’s decisions in Enmund v. Florida¹⁸⁷ and Tison v. Arizona.¹⁸⁸ These cases, nonetheless, are similarly distinguishable.

In Enmund, the Court considered whether a death sentence for a felony murder involving a person who did not kill, attempt to kill, or intend to kill violated the Eighth Amendment.¹⁸⁹ Of the thirty-six jurisdictions that permitted the death penalty at the time, the Court noted that only eight jurisdictions authorized the death penalty for accomplices in felony murder robbery cases like Enmund without proof of additional aggravating circumstances.¹⁹⁰ In addition, another nine states allowed death sentences for felony murder accomplices where other aggravating factors were present.¹⁹¹ The Court found that the legislative practice weighed “on the side of rejecting capital punishment for the crime at issue.”¹⁹²

In the second part of the evolving standards test, the Enmund Court brought its own judgment to bear, finding that the death sentence was inappropriate for Enmund.¹⁹³ Specifically, the Court held that his criminal culpability did not rise to the level required by just deserts retribution to warrant a death sentence.¹⁹⁴ The Court similarly dismissed deterrence as a supporting rationale for a death sentence in Enmund’s case.¹⁹⁵

Finally, it is notable that Enmund appeared to focus only on the relevant facts of Enmund’s case.¹⁹⁶ The Court did not explicitly create a categorical rule with respect to death sentences for felony murder convictions.¹⁹⁷

Tison involved the prosecution of two of Gary Tison’s sons after their father and an associate brutally murdered a family after stealing their car.¹⁹⁸ The sons participated both in helping Tison break out of prison and in the carjacking.¹⁹⁹ They were not directly present, however, at the moment when their father killed the family²⁰⁰ and were unaware that he intended to do so.²⁰¹

In assessing the jury’s imposition of death sentences on the sons, the Tison Court considered whether their punishments violated the Eighth Amendment.²⁰² The Tison Court adopted a new rule—that a capital felony murder is constitutional when the individuals in question are (1) major participants in the felony and (2) exhibit a reckless indifference to human life.²⁰³

Using the evolving standards of decency doctrine, the Court applied the same counting of state statutes as in Enmund but combined the jurisdictions that allowed felony murder for any accomplice with those that only allowed felony murder with additional aggravating circumstances.²⁰⁴ The Court reasoned that, unlike Enmund, the Tison sons played an active role in the crime (particularly the prison escape), and as a result both categories of jurisdictions should count, leading to a finding that only eleven jurisdictions did not allow death sentences in felony murder cases like Tison.²⁰⁵

The Court’s subjective judgment likewise found that the death sentences imposed on the Tison sons were not disproportionate.²⁰⁶ Specifically, the Court cited that the Tison sons’ “reckless indifference to human life” provided the intent to justify a death sentence, even though the sons did not participate in the killing itself.²⁰⁷ The distinction, then, between the outcomes in Enmund and Tison was the intent of the felony murder accomplices.²⁰⁸ Unlike in Enmund, the Tison Court made clear that the majority view did not provide a consensus view in favor of eliminating the application of the punishment at issue.²⁰⁹

So, the Court’s decisions here were not a move toward narrowing the Eighth Amendment. Rather, the Court in Tison simply qualified the scope of Enmund, which did not even impose a categorical rule in the first place. Tison did not overrule Enmund but instead reframed the inquiry. Note that the shift with respect to the act requirement moves the inquiry to the relationship of the act of the defendant to the felony, not the homicide.²¹⁰ In addition, the Tison rule keeps the mens rea connected to the homicide and captures all reckless actors.²¹¹

3. Thompson and Stanford

One might perceive that the decisions in Thompson and Stanford, discussed above, constitute a move away from the evolving standards, but like Enmund and Tison, the decisions reached parallel, but not overlapping, conclusions. Thompson barred the execution of fifteen-year-olds and younger; Stanford allowed the execution of sixteen and seventeen-year-olds.²¹² In much of the same way that Tison clarified the scope of Enmund, Stanford clarified the scope of Thompson.²¹³

4. Solem and Harmelin

The final example of the Court arguably narrowing the Eighth Amendment occurs in the cases of Solem v. Helm²¹⁴ and Harmelin v. Michigan.²¹⁵ Both of these cases concern the Eighth Amendment doctrine that the Court applies in non-capital, non-juvenile cases—the gross disproportionality doctrine.²¹⁶ These decisions parallel the opinions in Enmund and Tison, with the Court granting relief under the Eighth Amendment in the first case but using the second case to make sure that the outcome in the first case only had a narrow application.

In Solem v. Helm, the Court found that the life-without-parole sentence imposed for a bad check in the amount of $100 was grossly disproportionate in violation of the Eighth Amendment.²¹⁷ Specifically, the Court explained that the Eighth Amendment required consideration of (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.²¹⁸ Applying these concepts, the Court held that Helm’s sentence violated the Eighth Amendment because it was a far less severe crime than others for which the life-without-parole punishment—the most serious other than death—had been applied.²¹⁹ Even with the recidivist premium, the Court found that the punishment of life without parole for passing a bad check was grossly disproportionate.²²⁰

Less than a decade later, however, the Court clarified its test from Solem. In Harmelin, the Court upheld a mandatory life-without-parole sentence for a first-time offense of possession of 672 grams of cocaine.²²¹ In a 5-4 decision, the Justices in the majority splintered on the reasoning for the decision.²²² In a clear attempt to narrow Solem, Justice Scalia, joined by then-Chief Justice Rehnquist, held that the Eighth Amendment did not contain a proportionality guarantee, and therefore Harmelin’s sentence could not be unconstitutionally disproportionate.²²³ The controlling plurality, however, found that the Eighth Amendment had a proportionality guarantee,²²⁴ but that Harmelin’s sentence was nonetheless proportionate in light of the deference accorded to states in non-capital sentencing.²²⁵ Justice Kennedy determined that the Solem three-part analysis remained useful,²²⁶ but a reviewing court should consider the second and third factors—that is, the intra- and inter-jurisdictional analyses—only if “a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.”²²⁷

Harmelin, then, did not overrule Solem. It simply qualified the gross disproportionality test, specifying that failing to pass the first part, which most cases do not, ends the inquiry.²²⁸

C. Future Applications

A cursory examination of recent trends in state punishment practices suggests that the evolving standards have already evolved to reach other kinds of punishments.²²⁹ The most obvious category of punishments is the categorical areas barred in capital cases, but not juvenile life-without-parole cases.²³⁰

The Court has identified six categories of capital punishment that the Eighth Amendment proscribes: (1) mandatory death sentences;²³¹ (2) executions of juveniles;²³² (3) executions of intellectually disabled defendants;²³³ (4) executions for certain felony murder crimes;²³⁴ (5) executions for the crime of adult rape;²³⁵ and (6) executions for the crime of child rape.²³⁶ The Court has extended some of the categorical punishment bars to juvenile life without parole, covering three of the unconstitutional capital punishment categories—mandatory juvenile life-without-parole sentences,²³⁷ juvenile life-without-parole sentences for adult rape,²³⁸ and juvenile life-without-parole sentences for child rape.²³⁹

The other categories the Court should extend the death penalty evolving standards doctrine to are (1) categorical limits on juvenile life-without parole sentences in felony murder cases like in Enmund and Tison; (2) categorical limits on juvenile life-without-parole sentences for intellectually disabled defendants like in Atkins; and (3) a categorical limit on juvenile life-without-parole altogether, mirroring the Court’s decision in Roper imposing a categorical ban on the death penalty for juveniles.

Beyond these categorical exceptions, three broad categories of punishment seem like future candidates for constitutional bars under Eighth Amendment stare decisis: the death penalty, juvenile life-without-parole sentences, and emerging adult life-without-parole sentences.²⁴⁰

1. Death Penalty

The recent move toward death penalty abolition among the states suggests that it may soon reach the evolving standards threshold of national consensus against it, if it has not already.²⁴¹ At the time of Gregg, thirty-nine states had capital statutes.²⁴² Currently, twenty-seven states allow capital punishment, but six have gubernatorial holds on executions.²⁴³ Of those twenty-seven states, fifteen have not had an execution in the past five years and thirteen have not had an execution in the past decade.²⁴⁴ Indeed, only Alabama, Arizona, Florida, Georgia, Mississippi, Missouri, Oklahoma, South Carolina, Utah, Tennessee, and Texas—eleven states—have executed anyone in the past five years.²⁴⁵

And those states are not conducting many executions.²⁴⁶ For the past five years, fewer than twenty-five executions have occurred each year, with a total of ninety-two in the period from 2019–2023.²⁴⁷ The direction of change is also clear. Since 2007, ten states have abolished the death penalty.²⁴⁸ Finally, the number of new death sentences has dropped drastically²⁴⁹ with the adoption of life without parole in almost every jurisdiction.²⁵⁰

With respect to the objective indicia of national consensus, then, the evidence is close if not already there. While there are twenty-seven capital statutes in place, only twenty-one states allow executions currently, and only twelve states have recently executed an offender.²⁵¹ The pattern of abolition, including five states in the past decade,²⁵² and the decline in death sentences also supports this conclusion.²⁵³ International consensus supports a similar conclusion, with the European Union and most Western nations having abolished the death penalty long ago.²⁵⁴

With respect to the subjective indicia, it would not be a stretch for the Court to conclude that the death penalty does not serve any of the purposes of punishment.²⁵⁵ It is certainly possible to conclude that the death penalty is an excessive punishment for the purpose of retribution.²⁵⁶ And there is strong evidence that the death penalty does not deter.²⁵⁷

2. Juvenile Life Without Parole

If there is evidence that the death penalty has contravened the evolving standards of decency under the Eighth Amendment, there is perhaps even more evidence that juvenile life-without-parole sentences also cross the constitutional line.²⁵⁸ After the Court’s 2012 decision in Miller v. Alabama, states have moved consistently in the direction of abolishing juvenile life without parole.²⁵⁹

As of 2023, thirty-three states and the District of Columbia have no one serving juvenile life-without-parole sentences, with twenty-eight of those states banning juvenile life without parole.²⁶⁰ In addition, the number of juvenile life-without-parole sentences has drastically declined over the past decade in light of the Court’s decisions in Graham,²⁶¹ Miller,²⁶² and Montgomery v. Louisiana.²⁶³ A survey of the Sentencing Project found 1,465 people serving juvenile life-without-parole sentences in January 2020, a 38% decline from 2016 and a 44% decline from 2012.²⁶⁴ With respect to international consensus, the United States remains the only country in the world that permits juvenile life-without-parole sentences.²⁶⁵

In addition to the evidence of national consensus against juvenile life without parole, it is clear that the purposes of punishment do not support these sentences. The diminished culpability of juveniles, as discussed in Roper, Graham, Miller, and Montgomery, makes it unlikely that a juvenile would deserve a life-without-parole sentence.²⁶⁶ The Court has explained this point at length in the context of the juvenile death penalty, juvenile life-without-parole sentences for non-homicide crimes, and mandatory juvenile life-without-parole sentences.²⁶⁷

It likewise seems impossible to determine that a juvenile’s “crime reflects irreparable corruption” at the time of sentencing, meaning that the utilitarian purposes of deterrence, incapacitation, or rehabilitation would not support such a sentence.²⁶⁸ In particular, the Court has emphasized the pronounced potential that juveniles have for rehabilitation.²⁶⁹

3. Emerging Adult Life Without Parole

A similar, but broader category of young offenders has also garnered judicial interest in the context of state constitutions. The Court in its juvenile life-without-parole cases recognized the diminished capacity and culpability of under-eighteen offenders.²⁷⁰ But the science supporting this understanding does not draw a bright line at age eighteen.²⁷¹ If anything, it suggests that brain development is not complete until one reaches their late twenties.²⁷²

As a result, courts have begun to consider emerging adults—offenders aged eighteen to twenty—as similar to juveniles and worthy of the same constitutional protections.²⁷³ A recent case, Commonwealth v. Mattis, demonstrates this trend.²⁷⁴ In Mattis, the Massachusetts Supreme Court struck down all life-without-parole sentences for emerging adults, individuals aged eighteen to twenty, under the state constitution.²⁷⁵

In applying the language of its state constitution,²⁷⁶ the Mattis court relied heavily on the Court’s Eighth Amendment juvenile cases—Roper, Graham, and Miller—in recognizing the “mitigating qualities of youth.”²⁷⁷ In assessing the contemporary standards of decency, the court looked to science, trends in the state, and trends in other jurisdictions.²⁷⁸ After explaining why the science overwhelmingly supports treating twenty-year-old offenders like seventeen-year-old offenders,²⁷⁹ the court looked to examples of how Massachusetts treated emerging adults more like juveniles than adults.²⁸⁰ It then surveyed other jurisdictions in finding that Massachusetts was only one of ten states that currently requires eighteen- to twenty-year-old offenders convicted of murder to receive life-without-parole sentences.²⁸¹

With Michigan and Washington reaching similar conclusions under their state constitutions, it seems possible that the Court could arrive at a similar place.²⁸² The first step would be a conclusion that emerging adults were like juveniles in that they would also be “different” for purposes of the Eighth Amendment. Then, the question would be whether a consensus existed. As the Mattis court found, most states bar mandatory life-without-parole sentences, suggesting a national consensus with respect to mandatory life-without-parole sentences for emerging adults.²⁸³ A broader application could exist if other states follow the lead of Massachusetts, Michigan, and Washington in barring the imposition of life-without-parole sentences on emerging adults.²⁸⁴

The subjective proportionality analysis would be less difficult. The scientific evidence of the similarity between juveniles and emerging adults means that the same arguments from Roper, Graham, and Miller would apply.²⁸⁵ That means that retribution, deterrence, incapacitation, and rehabilitation might not support the imposition of life-without-parole sentences on emerging adults.²⁸⁶

D. The Limit of Evolving Standards

Having mapped out the concept of Eighth Amendment stare decisis and some potential future applications, the next question is whether the doctrine limits the Court, particularly in considering laws that violate the current doctrine, such as the Florida law highlighted at the beginning of the Article. In particular, the issue is whether Eighth Amendment stare decisis would bar the Court from reversing the limits imposed in Kennedy v. Louisiana²⁸⁷ and Graham v. Florida.²⁸⁸

1. Kennedy

As discussed, the Court in Kennedy barred the imposition of death sentences for the crime of child rape.²⁸⁹ Applying the evolving standards demonstrates why the Florida law is unconstitutional. First, the evolving standards only evolve in one direction—from more severe to less severe. If the Eighth Amendment currently limits the harshest punishment for child rapes, the only direction this punishment could move is to less severe—to barring life-without-parole for child rape.

In addition, there is a clear national consensus against the death penalty for child rape as, prior to the Florida and Tennessee laws, no state has sentenced anyone to death for child rape since at least before the Court barred it in 2008.²⁹⁰ Further, as the Court explained in Kennedy, the death penalty for adult rape was rare even before Coker, much less for child rape.²⁹¹

The subjective indicia also counsel against the death penalty as a punishment for rape. The Court has made clear in Coker and Kennedy that death is an excessive punishment in most cases for non-homicide crimes, particularly sex crimes.²⁹² The Court views death as a punishment for a non-death crime as extending beyond just deserts retribution, as well as being insufficient to accomplish the purpose of deterrence.²⁹³

2. Graham

The analysis for a challenge to the rule in Graham would be almost identical. In Graham, the Court barred the imposition of life-without-parole sentences in non-homicide cases.²⁹⁴

To reverse this decision under the Eighth Amendment stare decisis rule would be impossible, as it would require the Court to move from a less harsh punishment to a harsher one in allowing juvenile life without parole for a non-homicide crime when it was previously unconstitutional.

Likewise, there is a national consensus against imposing life-without-parole sentences for non-homicide crimes committed by juveniles.²⁹⁵ If anything the evidence is even stronger than in Graham, with a majority of states having either banned juvenile life without parole or having no person serving such a sentence.²⁹⁶

And the analysis of the subjective indicia would be the same. The diminished culpability of juveniles would mean that juvenile life without parole would be a disproportionate sentence in light of the goals of retribution, deterrence, incapacitation, and rehabilitation.

Under the evolving standards, then, the Court would apply Eighth Amendment stare decisis to strike down any statute, like Florida’s, that contravened Kennedy or any state statute that contravened Graham. The one possible loophole in this analysis would relate to the Court’s decision in Dobbs, which articulated the current stare decisis standard. Section III.B eliminates that possibility by demonstrating that Eighth Amendment stare decisis is consistent with the rule in Dobbs.

III. WHY DOBBS SUPPORTS EIGHTH AMENDMENT STARE DECISIS

In considering whether the Court has latitude to overrule Kennedy, the question involves the application of Dobbs to Eighth Amendment stare decisis. As demonstrated below, the Dobbs approach to stare decisis affirms both the concept of Eighth Amendment stare decisis and the individual decision in Kennedy. The Dobbs case articulated five factors the Court should consider when weighing whether to follow its prior precedents: (1) the nature of the Court’s error, (2) the quality of its prior reasoning, (3) the workability of the current standard, (4) the effect on other areas of law, and (5) reliance interests in the precedent.²⁹⁷

A. The Dobbs Test

It is worth noting that the framework of the evolving standards of decency rests in part on an assessment of majoritarian consensus, despite its purpose of articulating a countermajoritarian right.²⁹⁸ This means that Court decisions in this area are much less likely to be products of judicial activism as they base their decisions on what they perceive to be the majority practice.²⁹⁹

1. The Nature of the Court’s Error

While the Court has often had disagreements concerning the application of the evolving standards of decency test, the test itself has never been a point of contention.³⁰⁰ From the beginning of its Eighth Amendment cases, the Court has been virtually unanimous in its determination that the Eighth Amendment evolves over time, and only moves in one direction—toward less harsh punishments.³⁰¹ A decision ignoring or overruling Eighth Amendment stare decisis as a general principle would constitute a complete disregard of the rule of law.³⁰²

If there is an error in the evolving standards of decency test, it would relate either to the objective determination of the Court concerning the national consensus for a particular punishment or to the subjective determination of the Court with respect to the purposes of punishment.³⁰³

With respect to Kennedy, finding an error with respect to the objective indicia would be almost impossible. At the time of Kennedy, only five states allowed the execution of child rapists.³⁰⁴ And currently, only two states allow the death penalty for child rape.³⁰⁵

To reverse this perception, a national revolution with more than half of the states adopting statutes similar to Florida’s statute would be a prerequisite for even raising the objective indicia question.³⁰⁶ Even then, some additional evidence of state juries sentencing individuals to death for child rape would also be necessary. And as the Court in Kennedy indicated, such prosecutions have been rare.³⁰⁷

This is exactly the point. Where almost every jurisdiction is unwilling to sanction a particular punishment for a particular crime and juries are unwilling to impose such sentences, the rare jurisdiction with the outlier jury that imposes a death sentence for child rape defies the evolving standards of decency that mark the progress of a mature society.³⁰⁸

Moving to the subjective standards, the Court likewise would be unlikely to find that the punishment of the death penalty was a proportionate punishment for child rape. First, the Court has always reached the same conclusion under the subjective standards as it has under the objective standards when it applies the evolving standards of decency test.

Second, the Court has made clear, both in Coker and Kennedy, that it finds imposing death for a non-homicide sexual crime to be disproportionate.³⁰⁹ It has consistently found that despite the brutal and scarring nature of sex crimes, such crimes do not result in physical death.³¹⁰ A punishment of death, then, would be excessive in light of the crime committed.³¹¹ While the anger that many feel toward child sex offenders likely makes that bright line unsatisfying, it is nonetheless the bright line that the Court has chosen twice.³¹²

The purposes of punishment support such a determination. If retribution concerns just deserts, and not revenge, then it requires courts to impose a sentence no more than and no less than what the offender deserves based on the culpability of the offender and the harm caused.³¹³ If the harm caused did not involve death, then it follows that the punishment should not involve death either.³¹⁴ Similarly, deterrence does not support death as a punishment for child rape.³¹⁵ The marginal deterrence between a death sentence as opposed to a life-without-parole sentence is likely insignificant, particularly in light of the two-decade time gap between sentencing and execution.³¹⁶

Finally, as discussed, the deeper problem here would be that remedying that “error” would violate the core principle of Eighth Amendment stare decisis—that the evolving standards only evolve in one direction.³¹⁷ It would involve enabling states to engage in a harsher punishment than before for a particular crime or offender.³¹⁸

2. The Quality of Its Prior Reasoning

The question of the strength of the prior reasoning with respect to Eighth Amendment stare decisis and the evolving standards approach mirrors the question of error. If there is a flaw in the overall structure of the evolving standards paradigm, it is that it relies on majoritarian indicia to inform a countermajoritarian standard.³¹⁹ In the Court’s cases, this has served as a mechanism to reduce judicial activism and the aggressive substitute of the Court’s normative views for those of state legislatures and juries.³²⁰ If anything, it has caused the Court to be entirely too hesitant in permitting states to use the draconian sentencing practices that have contributed to mass incarceration.³²¹

A likely argument against the reasoning of the evolving standards doctrine would be that the standards should evolve in both directions, allowing punishments to become harsher. The Court cannot achieve such a result without repudiating the entire doctrine. As discussed, the evolving standards doctrine serves to protect human dignity and promote proportionality.³²² Moving toward harsher punishments would undermine both.

To allow movement toward harsher punishments would invert the entire Eighth Amendment and its basic meaning. Instead of being a constitutional protection for individuals against cruel and unusual punishment, the Eighth Amendment would protect the ability of outlier states to engage in extreme punishments disallowed by most other jurisdictions. In other words, reading the Eighth Amendment to allow harsher punishments to reemerge would mean that the Eighth Amendment would authorize cruel and unusual punishments—the very thing it proscribes.

As applied to Kennedy, these objections would be even more robust. Attacking the underlying reasoning of the evolving standards would mean ignoring both the dignity of the offender and the concept of proportionality. And undoing the outcome in Kennedy would sanction the imposition of a cruel and unusual punishment.

The imposition of the death penalty for a child rapist in Florida would be cruel as it is disproportionate in two senses. First, as discussed above, it is an excessive punishment for the crime committed.³²³ Second, it is comparatively disproportionate—almost no other child rapist would receive the same punishment.³²⁴

For the same reason, it would be an unusual punishment in several ways. Not only would it be rare, as almost no other child rapists would receive a death sentence, but it would also be contrary to longstanding practice.³²⁵ Even when the Eighth Amendment allowed the death penalty for child rape, almost no states had such a law, and within those states almost no one received a death sentence.³²⁶

3. The Workability of the Current Standard

The concept of the evolving standards of decency remains very workable. It is a simple two-part test that requires the Court to assess readily available information and then make its own determination, applying criminal law theory to criminal sentences.

In reviewing Kennedy, for instance, it will not be difficult to determine how many states authorize the death penalty for child rape. It will similarly be easily ascertainable how many individuals have received death sentences for the crime of child rape.

With respect to the Court’s subjective analysis, it will similarly not have difficulty engaging in the analysis of whether a death sentence satisfies the purposes of retribution and deterrence for the crime of child rape.

4. The Effect on Other Areas of Law

The Court’s Eighth Amendment stare decisis approach will not have a significant effect on other areas of law. While the Eighth Amendment is not unique in its reliance on jurisdiction counting, it also does not bear particularly on other kinds of constitutional interpretation.³²⁷ While having some similar characteristics to the due process doctrine, the Eighth Amendment does not invoke that doctrine, and that doctrine does not invoke it.³²⁸

As such, this part of the Dobbs test would not have much of an impact on its application to Eighth Amendment stare decisis or the evolving standards doctrine. Upholding Kennedy would not create a significant change in other areas; striking it down would not either. The analysis here would pertain simply to the future of the doctrine itself and its application.

Even so, one could imagine tangential effects from overturning the evolving standards doctrine. There are certain parallels with Sixth Amendment jurisprudence in which the doctrines of the Sixth Amendment and Eighth Amendment could inform each other.³²⁹ These relate to the similar constitutional restrictions both amendments have placed on mandatory sentencing schemes.³³⁰

Another possible ripple from abandoning the evolving standards of decency doctrine could relate to juvenile offenders. The concept that juveniles are different from adults extends beyond the Eighth Amendment. In other areas of law, courts and legislatures have chosen to treat juveniles differently from adults. Changing the approach to juveniles under the Eighth Amendment could influence other areas that have adopted similar approaches.

5. The Reliance Interests in the Precedent

Finally, the question becomes whether there are significant reliance interests in the Eighth Amendment stare decisis approach and the evolving standards of decency doctrine. Criminal defendants clearly have an interest in preventing states from subjecting them to draconian punishments. While the Court’s limits on states have been few—far fewer than perhaps the national consensus reflects—rolling back those limits could exacerbate expansive uses of the death penalty by outlier jurisdictions and promote unequal punishment. It could also invite small groups of citizens to engage in human rights abuses with no judicial review.

B. The Dobbs Reasoning

Implicit in the Court’s holding in Dobbs is both a disdain for abortion and the Court’s prior holdings in Roe and Casey. For the majority, the decision clearly reflects a view that the Court “got it wrong” in its earlier cases in a fundamental way. On some level, the Court’s reasoning was beside the point.³³¹

Unlike the culture war terrain of the abortion issue, criminal justice has historically enjoyed a bipartisan consensus of sorts.³³² Liberals and conservatives, for different reasons, both rode the “tough on crime” wave of the 1980s and 1990s to unprecedented levels of mass incarceration.³³³ And since the turn of the century, both groups have worked to slowly and incrementally undo some of this trend.³³⁴ The bipartisan First Step Act provides one example of this consensus.³³⁵

Outside of Furman, the Court’s Eighth Amendment decisions have not generated widespread public response or objection.³³⁶ This is in part because the evolving standards doctrine has served to restrict outliers, not advance broad normative change.

Undoing the decision in Kennedy would encourage states to engage in draconian punishment practices to test the boundaries of the Eighth Amendment. Florida’s statute is unconstitutional on its face. Upholding it would not only undermine the rule of law, but would also encourage state legislatures to disregard the Court’s decisions and the evolving standards. This would be different than ignoring stare decisis. It would constitute a repudiation of over one hundred years of jurisprudence.

Further, a significant part of the Court’s reasoning in Dobbs dealt with its concern with the “disruption of democratic deliberation.”³³⁷ The concern related to the use of the constitution to interfere with legislative authority, particularly on issues of “profound importance to the electorate.”³³⁸ As shown by the response to the Court’s decision in Furman, abolition of the death penalty might constitute a similar kind of issue.³³⁹ But it does not appear that the evolving standards of decency generally or the execution of child rapists specifically would fall into this category.

The difference again relates to the majoritarian anchor of the evolving standards of decency. Overruling an Eighth Amendment limit would not restore the power to the people as a general matter. It would give power to a particular state to violate a national, and in some cases international, consensus against a particular punishment practice. Put differently, it would provide a license to certain jurisdictions to violate the individual rights of defendants when an overwhelming majority of jurisdictions accord defendants those very rights.

CONCLUSION

Florida’s decision to pass a new statute that clearly violates the Eighth Amendment and the Court’s decision in Kennedy does not change the analysis in the case or under the Constitution. The Court’s decision in Dobbs does not open the door to such defiance, and it does not support rejection of the Court’s precedents.

This Article has demonstrated why, even if the Court thinks the normative outcome in Kennedy is wrong, the Court still must strike down the Florida statute if given the opportunity. Specifically, this Article has made the case for a novel reading of the doctrine of stare decisis under the Eighth Amendment. Drawn from the Court’s evolving standards of decency doctrine, this Eighth Amendment stare decisis requires the Court to change the rule in cases in which the national consensus has evolved and the Court finds the sentence to be disproportionate.

The Article first developed this concept by explaining the origins of this doctrine and defending the core principle that the evolving standards only evolve from more severe to less severe punishment. The Article then explored past applications of the doctrine, distinguished deviations from the doctrine, highlighted some future applications of the doctrine, and delineated the limits of the doctrine on state legislatures. Finally, the Article concluded by demonstrating how this reading of the Eighth Amendment is consistent with the Dobbs decision, both as a doctrinal and theoretical matter.

98 S. Cal. L. Rev. 255

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William W. Berry III*

* Associate Dean for Research and Montague Professor of Law, University of Mississippi. The author would like to thank Corinna Barrett Lain, Meghan Ryan, Cara Drinan, Kathryn Miller, Eric Berger, Alex Klein, Katie Kronick, Rachel Lopez, and Daniel Harawa for helpful comments on an early draft during the Eighth Amendment Roundtable at Cardozo Law School in April 2023.

INTRODUCTION

I. FOUNDATIONS OF SPECIAL EDUCATION LAW

A. History of IDEA

B. Inside IDEA

1. IDEA Requirements and Procedural Framework

2. State Responsibilities Under IDEA

3. Section 1415(l): IDEA Exhaustion Requirement

C. The ADA and Section 504 of the Rehabilitation Act

II. JUDICIAL MILESTONES IN SPECIAL EDUCATION

III. PEREZ V. STURGIS PUBLIC SCHOOLS: A TURNING POINT IN DISABILITY RIGHTS ADVOCACY

A. Discussion of Perez v. Sturgis Public Schools

B. Perez’s Impact on Special Education Litigation

IV. BEYOND PEREZ: IMPLICATIONS AND CHALLENGES IN SPECIAL EDUCATION POLICY

A. Implications of the Perez Decision

B. Challenges in Policy Implementation and Compliance

C. Strategic Approaches and Systemic Changes in Special Education

CONCLUSION

98 S. Cal. L. Rev. 473

INTRODUCTION

I. BACKGROUND

A. Contract Common Law: Offer and Acceptance

B. From Shrinkwrap to Clickwrap

1. Step-Saver and ProCD

2. Online Contracts Today

C. Second and Ninth Circuit Decisions: Nguyen, Berman, and Specht

II. CASE LAW SURVEY

A. California State Courts

1. Clickwrap Agreements

2. Browsewrap Agreements

3. Sign-In-Wrap Agreements

B. U.S. District Courts in California

1. Clickwrap Agreements

2. Scrollwrap Agreements

3. Browsewrap Agreements

4. Sign-In-Wrap Agreements

C. Summary of Findings

1. Standards of Notice

2. The Erosion of Distinct Wrap Categories

3. The Relevance of Step-Saver and ProCD

CONCLUSION

APPENDIX A. Surveyed Cases in California State Courts

APPENDIX B. Surveyed Cases in U.S. District Courts in California

98 S. Cal. L. Rev. 419

INTRODUCTION

I. FALSE STARTS IN THEORIZING EXTRAORDINARY VIOLENCE

A. The “Banality of Evil”

B. “Disciplinary Power” and the “Spectacle of the Scaffold”

C. Being “Before the Law”

II. THE BODY AND BEING ABOVE THE LAW

A. In the Penal Colony

B. “Spirit-Murder”

C. Disappointed Dominion

III. THE BODY POLITIC

98 S. Cal. L. Rev. 367

INTRODUCTION

I. A BRIEF HISTORY OF ALIEN LAND LAWS

II. RECENT BILLS AND LAWS: THE FIFTH WAVE

A. Singling Out Specific Countries

B. Targeting Foreign Adversaries

C. Proximity to Military Installations and Critical Infrastructure

D. Harsh Penalties

E. Targeting Corporations

III. ARE ALIEN LAND LAWS LEGAL?

A. Statutory Violations

1. The Fair Housing Act

2. Civil Rights Acts of 1866 and 1870

B. Equal Protection Concerns

1. Does Strict Scrutiny Apply?

i. Do All Alienage Classifications Receive Strict Scrutiny, or Only Classifications Affecting Lawful Permanent Residents?

ii. Does the “Political Functions” Exception to Strict Scrutiny for State Alienage Classifications Extend to Ownership of Real Property?

iii. Do Restrictions Discriminate Based on National Origin if They Draw Distinctions Based on Where a Person or Entity Is Domiciled or Headquartered?

2. Analyzing Alien Land Laws Under Strict Scrutiny

i. National Security

ii. Food Security

iii. Absentee Ownership

iv. Real Estate Market Prices

3. Rational Basis Analysis

i. Regular Rational Basis Review

ii. Rational Basis with Bite

C. Preemption Concerns