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Propertizing Fair Use

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. While the Court ruled that Google’s use of Oracle’s Java API packages was fair, the ruling does not protect the numerous parties that developed Java applications for the Android operating system; it shelters only Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted works, and it always leaves follow-on users in the cold. Authors, musicians, documentary filmmakers and media outlets who win fair use cases cannot freely market their works that incorporate fair use content, since their victories do not carry over to other users. Fair use under extant law is a very limited privilege.

This Article proposes a far-reaching reform not only of copyright law as applied to software, but of the fair use doctrine itself. Our proposal consists of three interlocking elements. First, we call for the introduction of a new in rem conception of fair use, under which a fair use ruling would serve as a property remedy that shelters all subsequent users of works who fairly incorporate preexisting materials. Under this new conception, a finding of fair use would run with that new work, like an easement to all other distributors, broadcasters, publishers, performers and others who use it. The introduction of this new type of in rem fair use would result in the division of fair use into two conceptions—one in rem and one in personam—that would co-exist alongside one another. Second, we would grant judges discretion to decide which fair use conception, if any, should be granted in any particular case. Judges would be able to employ the traditional in personam rule, allowing fair use to avail only the specific defendant before it, or they could adopt an in rem fair use ruling, creating a property entitlement that runs with the work embodying the fairly incorporated content. Third, we propose two default rules to assist judges in making their decisions. Specifically, we propose that the default setting of fair use would depend on the type of use being examined. Where the claimed fair use consists of incorporating the protected copyrighted material in a new copyrighted work—such as the Android operating system—the default fair use would be of the in rem variety. However, in all other cases of claimed fair use, the traditional, familiar in personam conception would be the default setting. This approach would create clarity about the status of follow-on fair uses, but permit judges to tailor their rulings case by case.

Implementation of our proposal would yield several significant improvements to the current fair use doctrine. It would permit judges to take account of the potential for future uses of the fair use work, without handcuffing them to a single approach. Moreover, it would increase certainty with respect to the use of copyrighted work by lowering transaction and litigation costs for creators of new works. Finally, the version of fair use we advocate would enhance the use of copyrighted content.

Introduction

Fair use is one of the most celebrated doctrines in the law.1 1.See generally Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600, 1601 (1982) (unearthing the “structural and economic” considerations in fair use); Wendy J. Gordon & Daniel Bahls, The Public’s Right to Fair Use: Amending Section 107 to Avoid the “Fared Use” Fallacy, 2007 Utah L. Rev. 619, 620 (arguing for the continued use of fair use, in light of its critics); William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1661 (1988) (criticizing fair use and suggesting reforms); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Penn. L. Rev. 549 (2008) (measuring outcomes of fair use cases historically); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009) (suggesting a typology of fair use cases based on their policy implications); Pamela Samuelson, Possible Futures of Fair Use, 90 Wash. L. Rev. 815 (2015) (predicting that fair use will survive in spite of critiques and continue to evolve); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004) (separating out fair use claims from free speech claims); Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev. 1087 (2007) (proposing reforms to fair use in light of its alleged abuses); Matthew Sag, Predicting Fair Use, 73 Ohio St. L.J. 47 (2011) (using empirical methodology to argue that fair use outcomes are more consistent and predictable than they might otherwise be assumed); Jeanne C. Fromer, Market Effects Bearing on Fair Use, 90 Wash. L. Rev. 615 (2015) (exploring the harms and benefits of fair use on markets); Abraham Bell & Gideon Parchomovsky, The Dual-Grant Theory of Fair Use, 83 U. Chi. L. Rev. 1051, 1053 (2016) [hereinafter The Dual-Grant Theory of Fair Use] (“Fair use is a keystone of the law of copyright . . . .”); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990) (“[T]he function of fair use [is] integral to copyright’s objectives . . . .”).Show More It is widely seen as a key component of the law of copyright, balancing the exclusive rights of copyright owners with the public interest in the use and enjoyment of works after their creation.2 2.Stephen McIntyre, Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship, 48 Gonz. L. Rev. 61, 64 (2012) (“The ‘fair use’ doctrine . . . balances copyright holders’ rights against the public’s interests in free speech and the dissemination of knowledge, information, and culture.”); Niva Elkin-Koren & Orit Fischman-Afori, Rulifying Fair Use, 59 Ariz. L. Rev. 161, 199 (2017) (“Fair use was first crafted as a legal standard . . . intending to allow courts to reconcile the copyright of authors with the public interest.”).Show More It is not only the most significant and most capacious defense against copyright infringement;3 3.See The Dual-Grant Theory of Fair Use, supra note 1, at 1053 (“The fair use defense to copyright infringement is perhaps the most frequently raised and litigated defense in the law of intellectual property.”); Carroll, supra note 1, at 1089 (“Fair use is the first and most general of these limitations.”). Unlike other defenses that apply to infringements of specific rights, such as reproduction, public performance, and public display, fair use offers protection against all violations of all rights.Show More it is also, according to the Supreme Court, an indispensable part of the constitutional balance between freedom of speech and protected copyrighted expression.4 4.Golan v. Holder, 565 U.S. 302, 328 (2012); Eldredv.Ashcroft, 537 U.S. 186, 219–20 (2003) (describing fair use as a “built-in First Amendment accommodation[]”); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (“In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”).Show More Unsurprisingly, the fair use doctrine has attracted considerable academic attention and has been the subject of discussion and debate.5 5.See generally sources supra note 1 (delineating several aspects of fair use discussion).Show More Yet a critical aspect of the doctrine, which goes to the core of the fair use doctrine, has not been analyzed to date.

There is a sharp asymmetry between the design of the exclusive rights granted to authors under the Copyright Act and the design of the fair use defense intended to protect user interests. The asymmetry is found in copyright’s protection of works, as opposed to fair use’s protection of uses. Copyright protects a list of rights in a particular work allocated to the owner of the copyright,6 6.Compare 17 U.S.C. § 106 (2018) (“[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . .”), with 17 U.S.C. § 107 (2018) (“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.”).Show More whereas the fair use defense only pertains to a specific use by a particular user.7 7.Julie E. Cohen, The Place of the User in Copyright Law, 74 Fordham L. Rev. 347, 362 (2005) (“In most fair use cases, the identity of the user is known, the use has already been made, and the only question is whether or not it passes muster.”).Show More Put differently, fair use is an agent-specific defense that is analyzed on a use-by-use basis. The fair use defense does not and cannot offer prophylactic immunity for using the work; it does not carry over to similar uses by the same user or identical uses by other users. As a result, the doctrine of fair use is far narrower than is generally appreciated.

To see why this is a problem, consider the Supreme Court’s recent ruling in Google LLC v. Oracle America, Inc.8 8.Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021). For an important analysis of the Oracle v. Google litigation prior to the Supreme Court’s ruling, see generally Peter S. Menell, API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess, 31 Berkeley Tech. L.J. 1515 (2016).Show More The case concerned Google’s copying of thirty-seven packages, comprising roughly 11,500 lines of code, in Java’s Application Programming Interface for use in the programs used by Android phones.9 9.Oracle, 141 S. Ct. at 1204.Show More (Application Programming Interfaces, or APIs, can be defined for simplicity’s sake as code orders that enable interfaces between programs.)10 10.SeeUnited States v. Microsoft Corp, 253 F.3d 34, 53 (D.C. Cir. 2001) (“Operating systems also function as platforms for software applications. They do this by ‘exposing’ . . . routines or protocols that perform certain widely-used functions. These are known as Application Programming Interfaces, or ‘APIs.’”).Show More Oracle claimed that Google violated its copyright in the API and the Java commands contained therein.11 11.Oracle, 141 S. Ct. at 1194.Show More In its defense, Google claimed that the commands were insufficiently original to warrant copyright protection,12 12.See id.Show More and that even if the commands were sufficiently original, other doctrines blocked copyright protection.13 13.See id.Show More The trial court held for Google, finding that the commands were insufficiently original and generally outside of copyright protection.14 14.Id.Show More However, the Federal Circuit Court of Appeals reversed, determining that Java’s API is copyrighted, and remanded the case to the trial court for examination of Google’s fair use defense.15 15.Id. at 1194–95.Show More Back in the trial court, Google claimed that its use of the Java commands in the programming language for Android phones was a fair use,16 16.Id. at 1195.Show More and again Google won at the trial level.17 17.Id.Show More Once more, the Federal Circuit Court of Appeals reversed the jury decision and ordered the trial court to proceed to the remedies phase.18 18.Id.Show More Before the trial court could take up the question of remedies, the Supreme Court granted certiorari and reversed the Federal Circuit Court of Appeal’s decision. The Supreme Court held that Google’s copying of the API was a protected fair use, while assuming arguendo that the API was copyrightable.19 19.Id. at 1186.Show More

In ruling that Google’s copying of thirty-seven Java packages from Oracle’s API was a fair use, the Court cleared the way for Google to continue using the copied Oracle software. However, the Court did not consider whether programmers for Android phones could use Google’s software, even though such programmers would thereby necessarily copy, in part, Oracle’s software.20 20.SeeHorace G. Ball, The Law of Copyright and Literary Property 260 (1944) (“Fair use is technically an infringement of copyright, but is allowed by law on the ground that the appropriation is reasonable and customary.”); Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135, 141 (2011) (“Fair use now represents an excuse to justify infringement, or in other words, an exception to the norm of speech suppression through copyright.”).Show More Importantly, as the Court noted, all fair use rulings are case by case.21 21.Oracle, 141 S. Ct. at 1198.Show More Other companies that duplicated part of the thirty-seven packages that Google had copied in order to program for the Android phone could not be sure that their use of the Java commands would be considered a fair use. The fair use approved by the Supreme Court is Google’s use, not that of any other user. Indeed, even Google could not be sure that any future Google use of Oracle’s API would be permitted. Google can only be confident that the particular uses considered in the case were fair uses; any other use of the Java commands in a different program or use of different commands in the Java API in the same program would potentially be vulnerable to an infringement suit.

A similar problem arises in other contexts, from music to literature. 2 Live Crew famously won a Supreme Court victory in Campbell v. Acuff-Rose Music, Inc. on a claim of fair use, allowing it to continue to use portions of the melody of Roy Orbison’s song “Oh Pretty Woman” in its parody “Pretty Woman.”22 22.510 U.S. 569, 571–72 (1994).Show More However, a different user who wishes to use 2 Live Crew’s song in another context—for example, by incorporating it as background music in a film or performing the song at a high school dance—is barred from doing so, even if she were to secure permission from 2 Live Crew.23 23.The industry practice for obtaining licenses for musical performance is sufficiently well-developed and complex that the would-be user would likely be able to obtain the relevant licenses without direct communication with either Campbell (who owns the rights to 2 Live Crew’s song) or Acuff-Rose (who owns the rights to Orbison’s). For purposes of our example, we ignore the industry practice.Show More The Supreme Court’s ruling that 2 Live Crew’s use is fair does not mean that the subsequent use would be deemed fair too. Similarly, if a screenwriter wanted to produce a movie based on Alice Randall’s book, The Wind Done Gone, and she properly purchased rights from Alice Randall, she would not be readily able to embark upon this task. Although Alice Randall’s use of Margaret Mitchell’s Gone with the Wind was ruled to be fair,24 24.See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concluding that “a viable fair use defense is available” for The Wind Done Gone’s potential infringement of Suntrust’s copyright in Gone with the Wind).Show More every subsequent user of her work would be exposed to an infringement claim, unless she secured a license from the owners of Gone with the Wind who, as one may recall, refused to license Alice Randall’s use. Fair use findings are in personam; they only pertain to a specific user. Copyright protection, by contrast, is in rem; it avails against the rest of the world.25 25.SeeAbraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1032 (2008)(“[P]roperty rights, as defined by the government, are rights in rem, which avail against the world . . . .”);Guy Pessach, Toward A New Jurisprudence of Copyright Exemptions, 55 Intell. Prop. L. Rev. 287, 291 (2015) (“Copyright owners’ entitlements are in rem exclusive property rights . . . owners have the right to exclude the rest of the world from utilizing their copyrighted works for uses that fall within their bundle of exclusive uses.”).Show More This creates a vast amount of uncertainty.

In this Article, we propose a dramatic reformation of the fair use doctrine, consisting of three complementary steps. First, we introduce a new conception of fair use, under which fair use could constitute an in rem, property remedy. This new conception of fair use would supplement, rather than supplant, the existing fair use doctrine. Under the new in rem property conception, a fair use finding would assist not only the particular defendant who raised the fair use defense but also all subsequent users of a work that had been found to fairly incorporate copyright content. Thus, the in rem version of fair use would take on the form of a property incident that benefits all future users, and it would therefore enhance the marketability of follow-on works employing the fair use.

Second, we would grant courts the power to decide which conception of fair use, if any, to adopt in each case. Upon a finding of fair use, the judge could adopt either the traditional in personam version or our new in rem version of fair use. Judges would not be required to adopt the in rem version of fair use in every case. In appropriate circumstances, the judge could stick to the traditional approach to fair use, limiting it to the specific user and the specific use. The upshot of our proposal would be a legal menu with three options: denying fair use, finding an in personam fair use, or finding an in rem fair use.

Third, we propose a set of default rules for all fair use cases. Where judges choose not to specify whether their finding of fair use is of the in personam or in rem variety, we propose that default rules make that decision. However, the default setting of fair use would depend on the type of use being examined. Specifically, where the claimed fair use consists of incorporating the protected copyrighted material in a new copyrighted work—such as the Android operating system, or the “Pretty Woman” song—the default fair use would be of the in rem variety. In such cases, if the judge failed to specify otherwise, future users of the fair use follow-on work could utilize that work without having to relitigate the issue of infringement with the owner of the original copyrighted work. However, in all other cases of claimed fair use, the traditional, familiar in personam conception of fair use would be the default setting. This set of default rules would create clarity about the status of follow-on fair uses, but permit judges to tailor their rulings case by case.

We propose that the result of a successful invocation of an in rem fair use defense should create effects like those in the world of property. Under our suggested interpretation, where the judge chooses the in rem variety of fair use, a fair use ruling in favor of any particular user would continue to run with the work for the benefit of subsequent users with respect to the relevant content covered by the ruling. Specifically, any unlicensed incorporation of copyrighted material that was ruled a fair use would be seen as creating a permanent copyright defense that runs with the work, akin to a property easement. Were a court to rule that a particular user made fair use of a preexisting work, subsequent users of the follow-on work that was found to fairly use preexisting material would also be protected by the ruling. These subsequent users could utilize the preexisting material in the follow-on work with assurance that their use too would be deemed fair. For example, if Google’s use of Oracle’s Java APIs were not merely a fair use but an in rem fair use, not just Google but every programmer for Android phones who uses Google’s Android system will be sheltered from liability, even though Android incorporates 11,500 lines of code from Oracle’s API.26 26.Perhaps due to the litigation, Google ultimately abandoned use of Oracle’s Java API, and later versions of Android did not involve any copying of Oracle’s copyrighted work. Oracle, 141 S. Ct. at 1191. Our comments relate to early versions of Android that still incorporated Oracle’s work. An early ruling in favor of in rem fair use for Google might have left parts of Oracle’s API in the Android program.Show More

Our proposal has three significant advantages relative to extant fair use doctrine. First, our proposal would increase certainty with respect to the use of copyrighted work. Currently, a fair use finding only helps the named defendants in the case. It does not pertain to other users who wish to make the same use of the copyrighted work. Under current law, other users either have to take their chances in court or negotiate a license from the owner.27 27.See James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 890 (2007) (stating that since the fair use doctrine is ambiguous and the cost of losing an infringement case is prohibitively high, “even a risk-neutral actor with a good fair use claim would choose to secure a license rather than take the small risk of incurring a severe penalty”).Show More The adoption of our proposal would allow judges in fair use cases to put other potential users on solid ground by allowing them to engage in the same use that was ruled fair. At the same time, our approach would permit tailoring remedies to the needs of the fair use. Judges could take account of the potential for future uses of the fair use work, and deny future in rem employment of a fair use remedy, when appropriate. The default settings of fair use would create clarity about the meaning of fair use decisions in any particular case where the judge chose not to elaborate.

Second, our proposal would potentially lower transaction and litigation costs for creators of new works.28 28.For discussion, see infraSection I.B.Show More As we explained, current doctrine requires users of works that fairly incorporate materials from preexisting works to negotiate licenses from both the original owner and the fair user or plead their own new fair use in court. Both options are costly. Our proposal potentially alleviates this burden, conserving judicial resources while lowering costs for the parties themselves.

Third, and finally, our proposal would increase the productive use of copyrighted content. The sheltering principle would enable multiple downstream users to create new works that incorporate past works that were found by courts to make fair uses of older works.

The remainder of the Article unfolds in four parts. In Part I, we explain the shortcomings of extant fair use doctrine, focusing on the inherent limitations arising from fair use’s understanding as a personal, use-specific defense to copyright infringement. In particular, we discuss the costs that current fair use jurisprudence imposes on follow-on creators. In Part II, we turn to the world of property, where one finds such doctrines as market overt and the law of easements, which promote the marketability of rights and give use rights an in rem character. In Part III, we draw on our discussion of property law to call for the introduction of a brand-new conception of fair use that would operate as a property incident, in the sense that it would benefit all subsequent users of a work that obtained a fair use status. Finally, in Part IV, we provide an important context for our amended understanding of fair use by showing that other parts of the law of copyright that struggle with similar problems have employed mechanisms that bear a great deal of resemblance to our proposal.

 

  1. * Professor, Bar Ilan University Faculty of Law and University of San Diego School of Law. Visiting Fellow, Harvard Law School Project on the Foundations of Private Law. ↑

  2. ** Robert G. Fuller Jr. Professor of Law at the University of Pennsylvania School of Law and the Edward Silver Professor at the Hebrew University of Jerusalem. Faculty of Law. The authors are grateful to David Abrams, Shyam Balganesh, Lital Helman, Neil Netanel, Lydia Loren, Jennifer Rothman, Guy Rub, Christopher Yoo, Eyal Zamir and participants at workshops and conferences at the University of Pennsylvania Carey School of Law and Stanford Law School for invaluable comments and criticisms. Isabel Redleaf and Ziqian Tao provided excellent research assistance. ↑

  3. See generally Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600, 1601 (1982) (unearthing the “structural and economic” considerations in fair use); Wendy J. Gordon & Daniel Bahls, The Public’s Right to Fair Use: Amending Section 107 to Avoid the “Fared Use” Fallacy, 2007 Utah L. Rev. 619, 620 (arguing for the continued use of fair use, in light of its critics); William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1661 (1988) (criticizing fair use and suggesting reforms); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Penn. L. Rev. 549 (2008) (measuring outcomes of fair use cases historically); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009) (suggesting a typology of fair use cases based on their policy implications); Pamela Samuelson, Possible Futures of Fair Use, 90 Wash. L. Rev. 815 (2015) (predicting that fair use will survive in spite of critiques and continue to evolve); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004) (separating out fair use claims from free speech claims); Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev. 1087 (2007) (proposing reforms to fair use in light of its alleged abuses); Matthew Sag, Predicting Fair Use, 73 Ohio St. L.J. 47 (2011) (using empirical methodology to argue that fair use outcomes are more consistent and predictable than they might otherwise be assumed); Jeanne C. Fromer, Market Effects Bearing on Fair Use, 90 Wash. L. Rev. 615 (2015) (exploring the harms and benefits of fair use on markets); Abraham Bell & Gideon Parchomovsky, The Dual-Grant Theory of Fair Use, 83 U. Chi. L. Rev. 1051, 1053 (2016) [hereinafter The Dual-Grant Theory of Fair Use] (“Fair use is a keystone of the law of copyright . . . .”); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990) (“[T]he function of fair use [is] integral to copyright’s objectives . . . .”). ↑

  4. Stephen McIntyre, Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship, 48 Gonz. L. Rev. 61, 64 (2012) (“The ‘fair use’ doctrine . . . balances copyright holders’ rights against the public’s interests in free speech and the dissemination of knowledge, information, and culture.”); Niva Elkin-Koren & Orit Fischman-Afori, Rulifying Fair Use, 59 Ariz. L. Rev. 161, 199 (2017) (“Fair use was first crafted as a legal standard . . . intending to allow courts to reconcile the copyright of authors with the public interest.”). ↑

  5. See The Dual-Grant Theory of Fair Use, supra note 1, at 1053 (“The fair use defense to copyright infringement is perhaps the most frequently raised and litigated defense in the law of intellectual property.”); Carroll, supra note 1, at 1089 (“Fair use is the first and most general of these limitations.”). Unlike other defenses that apply to infringements of specific rights, such as reproduction, public performance, and public display, fair use offers protection against all violations of all rights. ↑

  6. Golan v. Holder, 565 U.S. 302, 328 (2012); Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003) (describing fair use as a “built-in First Amendment accommodation[]”); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (“In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”). ↑

  7. See generally sources supra note 1 (delineating several aspects of fair use discussion). ↑

  8. Compare 17 U.S.C. § 106 (2018) (“[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . .”), with 17 U.S.C. § 107 (2018) (“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.”). ↑

  9. Julie E. Cohen, The Place of the User in Copyright Law, 74 Fordham L. Rev. 347, 362 (2005) (“In most fair use cases, the identity of the user is known, the use has already been made, and the only question is whether or not it passes muster.”). ↑

  10. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021).
    For an important analysis of the Oracle v. Google litigation prior to the Supreme Court’s ruling, see generally Peter S. Menell, API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess, 31 Berkeley Tech. L.J. 1515 (2016). ↑

  11. Oracle, 141 S. Ct. at 1204. ↑

  12. See United States v. Microsoft Corp, 253 F.3d 34, 53 (D.C. Cir. 2001) (“Operating systems also function as platforms for software applications. They do this by ‘exposing’ . . . routines or protocols that perform certain widely-used functions. These are known as Application Programming Interfaces, or ‘APIs.’”). ↑

  13. Oracle, 141 S. Ct. at 1194. ↑

  14. See id. ↑

  15. See id. ↑

  16. Id. ↑

  17. Id. at 1194–95. ↑

  18. Id. at 1195. ↑

  19. Id. ↑

  20. Id. ↑

  21. Id. at 1186. ↑

  22. See Horace G. Ball, The Law of Copyright and Literary Property 260 (1944) (“Fair use is technically an infringement of copyright, but is allowed by law on the ground that the appropriation is reasonable and customary.”); Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135, 141 (2011) (“Fair use now represents an excuse to justify infringement, or in other words, an exception to the norm of speech suppression through copyright.”). ↑

  23. Oracle, 141 S. Ct. at 1198. ↑

  24. 510 U.S. 569, 571–72 (1994). ↑

  25. The industry practice for obtaining licenses for musical performance is sufficiently well-developed and complex that the would-be user would likely be able to obtain the relevant licenses without direct communication with either Campbell (who owns the rights to 2 Live Crew’s song) or Acuff-Rose (who owns the rights to Orbison’s). For purposes of our example, we ignore the industry practice. ↑

  26. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concluding that “a viable fair use defense is available” for The Wind Done Gone’s potential infringement of Suntrust’s copyright in Gone with the Wind). ↑

  27. See Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1032 (2008) (“[P]roperty rights, as defined by the government, are rights in rem, which avail against the world . . . .”); Guy Pessach, Toward A New Jurisprudence of Copyright Exemptions, 55 Intell. Prop. L. Rev. 287, 291 (2015) (“Copyright owners’ entitlements are in rem exclusive property rights . . . owners have the right to exclude the rest of the world from utilizing their copyrighted works for uses that fall within their bundle of exclusive uses.”). ↑

  28. Perhaps due to the litigation, Google ultimately abandoned use of Oracle’s Java API, and later versions of Android did not involve any copying of Oracle’s copyrighted work. Oracle, 141 S. Ct. at 1191. Our comments relate to early versions of Android that still incorporated Oracle’s work. An early ruling in favor of in rem fair use for Google might have left parts of Oracle’s API in the Android program. ↑

  29. See James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 890 (2007) (stating that since the fair use doctrine is ambiguous and the cost of losing an infringement case is prohibitively high, “even a risk-neutral actor with a good fair use claim would choose to secure a license rather than take the small risk of incurring a severe penalty”). ↑

  30. For discussion, see infra Section I.B. ↑

  31. Gideon Parchomovsky, Fair Use, Efficiency, and Corrective Justice, 3 Legal Theory 347, 350 (1997) (“The doctrine of fair use originated in the decisions of the English Law and Equity courts.”). ↑

  32. 17 U.S.C. § 107 (2018). ↑

  33. Id. ↑

  34. Id. ↑

  35. Stephen B. Thau, Copyright, Privacy, and Fair Use, 24 Hofstra L. Rev. 179, 189 (1995) (“[T]he Court has emphasized . . . that the fourth factor—the impact on the potential market value of the plaintiff’s work—is to receive the most weight.”). ↑

  36. Samuelson, Unbundling Fair Uses, supra note 1, at 2540–41. ↑

  37. 471 U.S. 539 (1985). ↑

  38. Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy 102–03 (2008). ↑

  39. See, e.g., Ben Depoorter, Alain Van Hiel & Sven Vanneste, Copyright Backlash, 84 S. Cal. L. Rev. 1251, 1253 (2011) (“Sharing unlicensed copyrighted materials is now a part of teenagers’ everyday lives.”); Madhavi Sunder, IP³, 59 Stan. L. Rev. 257, 263 (2006) (observing that we are living in the “‘Participation Age’ of remix culture, blogs, podcasts, wikis, and peer-to-peer filesharing,” which in turn leads a “new generation [to view] intellectual properties as the raw materials for its own creative acts, blurring the lines that have long separated producers from consumers”); John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 Utah L. Rev. 537, 548 (pointing out that digital technology “has enabled unparalleled manipulation and use of creative works by ordinary individuals”). ↑

  40. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1186 (2021); Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1354 (Fed. Cir. 2014) (remanding “for further proceedings on Google’s fair use defense”). ↑

  41. See, e.g., Pamela Samuelson & Clark D. Asay, Saving Software’s Fair Use Future, 31 Harv. J.L. & Tech. 535, 536–37 (2018) (“How the Federal Circuit decides Oracle’s appeal of a jury verdict in favor of Google’s fair use defense will have significant implications for future software copyright fair use cases because Oracle, in effect, calls into question the viability of fair use defenses in all API reuse cases (and perhaps in software cases more generally).”). ↑

  42. Oracle, 141 S. Ct. at 1193. ↑

  43. Id. ↑

  44. Id. ↑

  45. Id. at 1186. ↑

  46. Id. at 1190. ↑

  47. Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1347 (Fed. Cir. 2014). ↑

  48. Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974, 979 (N.D. Cal. 2012). ↑

  49. Id. at 996 & n.7 (citing Pamela Samuelson, Why Copyright Law Excludes Systems and Processes from the Scope of Protection, 85 Tex. L. Rev. 1921, 1921 (2007)); id. at 997, 1001–02. ↑

  50. 750 F.3d at 1381. ↑

  51. 750 F.3d 1339, cert. denied, 135 S. Ct. 2887 (2015). ↑

  52. Oracle Am. Inc. v. Google LLC, 886 F.3d 1179, 1185 (Fed. Cir. 2018). ↑

  53. See, e.g., Ieva Giedrimaite, No Allies for Oracle’s Win Against Google, The IPKat (Mar. 25, 2019), https://ipkitten.blogspot.com/2019/03/no-allies-for-oracles-win-against-google.‌html [https://perma.cc/8Q5M-WD2L]. ↑

  54. Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1211 (Fed. Cir. 2018). ↑

  55. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1186 (2021). ↑

  56. Id. at 1204. ↑

  57. Google ultimately stopped using the copied code. Android programmers utilizing later versions of the program are therefore shielded from liability to Oracle, despite the limited nature of the fair use defense. Supra note 26. ↑

  58. 886 F.3d at 1186–87. ↑

  59. 510 U.S. 569, 572 (1994). ↑

  60. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1259 (11th Cir. 2001). ↑

  61. Id. at 1277. ↑

  62. See generally Peter Jaszi, Copyright, Fair Use and Motion Pictures, 2007 Utah L. Rev. 715, 717–18 (discussing how documentary filmmaking has contributed to “the increasing reliance of motion picture production on the appropriation of reality . . . giv[ing] rise to tensions that have been expressed in terms of conflicts over copyright”). ↑

  63. Peter Jaszi et al., Evaluating the Benefits of Fair Use: A Response to the PWC Report on the Costs and Benefits of ‘Fair Use’ 3 (Apr. 15, 2016), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=2773646 [https://perma.cc/NB6V-J32A]. ↑

  64. See, e.g., Carroll, supra note 1, at 1087 (discussing fair use’s lack of clarity); Jason Mazzone, Administering Fair Use, 51 Wm. & Mary L. Rev. 395, 415 (2009) (noting that fair use fails to give sufficient guidance to users). ↑

  65. See, e.g., Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 N.Y.U. L. Rev. 23, 59–60 (2001) (“The Supreme Court has held consistently and unanimously that American law explicitly treats intellectual property rights in utilitarian terms . . . .”); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 326 (1989) (emphasizing that one of copyright law’s central goals is to maintain incentives for individuals to produce creative works); Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. Chi. L. Rev. 129, 129 (2004) (same). ↑

  66. Abraham Bell & Gideon Parchomovsky, Reinventing Copyright and Patent, 113 Mich. L. Rev. 231, 240–41 (2014) (explaining that copyright law incentivizes the creation of original expressive works by conferring a bundle of exclusive rights on authors). ↑

  67. See Diane Leenheer Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 12 Theoretical Inquiries L. 29, 30 (2011) (“An exclusive right to license or vend the work for a limited time period permits markets for public goods to form.”). ↑

  68. The law and economics literature points to a positive correlation between the number of rightsholders and the level of transaction costs. See generally Abraham Bell & Gideon Parchomovsky, Copyright Trust, 100 Cornell L. Rev. 1015, 1060 (2015) (“Multiparty agreements typically involve higher coordination costs and as the number of parties grows, so does the likelihood of an impasse.”). ↑

  69. See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 615 (2d Cir. 2006) (concluding that the defendant’s use of the plaintiff’s “copyrighted images in its book Illustrated Trip is fair use”). ↑

  70. It is precisely for this reason that Wendy Gordon listed market failure—including prohibitive transaction costs—as the first prerequisite for recognizing fair use by her lights. See Gordon, Fair Use as Market Failure, supra note 1, at 1614–15, 1627–28. ↑

  71. See generally Thomas J. Miceli, The Economic Approach to Law 216–17 (2004) (justifying eminent domain as a mechanism for overcoming holdouts); Steven Shavell, Foundations of Economic Analysis of Law 124 (2004) (discussing the problem of holdouts in the context of government acquisitions of property); Daniel B. Kelly, Acquiring Land Through Eminent Domain: Justifications, Limitations, and Alternatives, in Research Handbook on the Economics of Property Law 344, 345–49 (Kenneth Ayotte & Henry E. Smith eds., 2011) (same). ↑

  72. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 187 (2004). ↑

  73. See generally Leval, supra note 1, at 1106 (“Judges do not share a consensus on the meaning of fair use.”). ↑

  74. See, e.g., Dan L. Burk, Muddy Rules for Cyberspace, 21 Cardozo L. Rev. 121, 140 (1999) (“[F]air use appears to be employed in situations of high transaction costs, where a muddy entitlement may be appropriate . . . . The ‘muddy’ four-part balancing standard of fair use allows courts to reallocate what the market cannot.”). ↑

  75. Gideon Parchomovsky & Kevin A. Goldman, Fair Use Harbors, 93 Va. L. Rev. 1483, 1486 (2007) (“The Supreme Court’s decision to favor ex post fairness over ex ante certainty comes at a steep cost for potential users of copyrighted works.”). ↑

  76. See, e.g., John E. Calfee & Richard Craswell, Some Effects of Uncertainty on Compliance with Legal Standards, 70 Va. L. Rev. 965, 995 (1984) (noting that when the “probability [of liability] declines as defendants take more care, then defendants may tend to overcomply”); Richard Craswell & John E. Calfee, Deterrence and Uncertain Legal Standards, 2 J.L. Econ. & Org. 279, 280 (1986) (arguing that overcompliance is a common effect of some types of uncertain rules); A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 873 (1998) (observing that “if injurers are made to pay more than for the harm they cause, wasteful precautions may be taken . . . and risky but socially beneficial activities may be undesirably curtailed”). ↑

  77. 17 U.S.C. § 504(a)(1) (2018) (stating that a copyright infringer is, by default, liable for any of “the copyright owner’s actual damages and any additional profits of the infringer”). ↑

  78. 17 U.S.C. § 504(c)(2) (2018). ↑

  79. See, e.g., UMG Recordings v. MP3.com, Inc., No. 00-CIV-472, 2000 WL 1262568, at *6 (S.D.N.Y. Sept. 6, 2000) (finding MP3.com liable for approximately $118 million in statutory damages); see also J. Cam Barker, Note, Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement, 83 Tex. L. Rev. 525, 545–49 (2004) (pointing out the punitive nature of statutory damages in copyright law). ↑

  80. Gibson, supra note 27, at 887–95. ↑

  81. See id. ↑

  82. Supra Part I. ↑

  83. See John G. Sprankling, Understanding Property Law 3–4 (4th ed. 2017) (noting that most people think of property as “things”); Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1693–94 (2012); Yun-chien Chang & Henry E. Smith, An Economic Analysis of Civil Versus Common Law Property, 88 Notre Dame L. Rev. 1, 4 (2012); Eric R. Claeys, Property 101: Is Property a Thing or a Bundle?, 32 Seattle U. L. Rev. 617, 618 (2009); Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 1 (3d ed. 2017). See generally Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 576 (2005) (noting that the “popular imagination” continues to associate the idea of property with things). ↑

  84. Chang & Smith, supra note 81, at 23. ↑

  85. Merrill & Smith, supra note 81, at 982–89. Easements can also be negative. A negative easement entitles the holder to prevent a certain use of the parcel to which the easement applies. Traditionally, the common law recognized only four negative easements: (1) blocking windows, (2) interfering with air flow in a defined channel, (3) removing artificial support for buildings, and (4) interfering with the flow of water in an artificial channel. See Jesse Dukeminier, James E. Krier, Gregory S. Alexander & Michael H. Schill, Property 736 (6th ed. 2006). ↑

  86. John H. Pearson, Easement Defined, in 7 Thompson on Real Property § 60.02 (David A. Thomas ed., 1994) (“[A]n easement is one of several ways in which one may obtain rights in the land of another, for the benefit of one’s own property or for one’s own personal benefit.”). ↑

  87. Merrill & Smith, supra note 81, at 983; Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. Cal. L. Rev. 1261, 1264 (1982). ↑

  88. Pearson, supra note 84, at § 60.07(a) (“The very nature of an easement, and a major point justifying its existence, is to guarantee that an arrangement for the non-possessory use of land survives the transfer of that land into the hands of another.”). ↑

  89. Id. ↑

  90. Indeed, English law originally refused to recognize the validity of easements in gross. French, supra note 85, at 1267–68. ↑

  91.  Property law also recognizes easements in gross. Unlike appurtenant easements, easements in gross do not attach to the land and do not run with the title to it. Rather, they are personal in nature and benefit particular individuals. In our previous example, Beatrice could have made the easement personal to Alice, rendering it an easement in gross. In such a case, the easement would continue to benefit Alice even if she sold her title to Blackacre and moved elsewhere, but it would not automatically benefit Danielle who purchased title to Blackacre from Alice. In the past, easements in gross were considered non-transferrable. This is no longer the case. Under modern property law, even easements in gross are transferable. See Dukeminier et al., supra note 83, at 714–16. ↑

  92. 18 N.E.2d 362, 362–64 (1938). ↑

  93. Merrill & Smith, supra note 81, at 988. ↑

  94. See generally Pearson, supra note 84, at § 60.02(e)(4) (“The conservation easement is a negative easement that prevents the fee owner from making use of the land in ways that would compromise its preservation”); Jeffrey A. Blackie, Note, Conservation Easements and the Doctrine of Changed Conditions, 40 Hastings L.J. 1187, 1193–94 (1989). ↑

  95. See generally Pearson, supra note 84, at § 60.02(a) (noting that an easement “[m]ay involve the right to act upon the land of another”); J.B. Ruhl, The “Background Principles” of Natural Capital and Ecosystems Services—Did Lucas Open Pandora’s Box?, 22 J. Land Use & Env’t L. 525, 534 (2007) (noting that the four types of traditionally recognized negative easements were: “the rights to stop other landowners from (1) blocking one’s windows, (2) interfering with the flow of air in a defined channel, (3) removing artificial support for buildings, and (4) interfering with the flow of water in an artificial channel”). ↑

  96. Merrill & Smith, supra note 81, at 983. ↑

  97. See William B. Stoebuck & Dale A. Whitman, The Law of Property 472, 475 (3d ed. 2000); Merrill & Smith, supra note 81, at 982–83, 986. ↑

  98. Tulk v. Moxhay (1848) 41 Eng. Rep. 1143 (Ch). ↑

  99. Id. ↑

  100. Note, Equitable Restrictions in Land and Tulk v. Moxhay in Virginia, 39 Va. L. Rev. 703 (1953). ↑

  101. See Jonathan D. Ross-Harrington, Property Forms in Tension: Preference Inefficiency, Rent-Seeking, and the Problem of Notice in the Modern Condominium, 28 Yale L. & Pol’y Rev. 187, 192 (2009) (“Condominiums, like all common-interest communities, are distinguished by their complex system of servitudes and the governance structure designed to amend and enforce the applicable covenants.”). ↑

  102. See Abraham Bell & Gideon Parchomovsky, Governing Communities by Auction, 81 U. Chi. L. Rev. 1, 5 (2014) (noting that “[i]n homeowners’ and condominium associations, the servitudes are generally aggregated in a large document called the covenants, conditions, and regulations (CCR)”). ↑

  103. See, e.g., Villa Milano Homeowners Ass’n v. Il Davorge, 102 Cal Rptr. 2d 1, 6 (Cal. Ct. App. 2000) (“[A] major distinction between the typical adhesion contract and CC&R’s is that, once the homeowners have made their purchases, they ordinarily have the collective power to amend the CC&R’s to suit their changing needs. (Civ. Code, § 1355.) This is because the CC&R’s, unlike most contracts, establish a system of governance.”). ↑

  104. See generally Pearson, supra note 84, at § 60 (describing the law of easements). ↑

  105. See J.G. Pease, The Change of the Property in Goods by Sale in Market Overt, 8 Colum. L. Rev. 375, 375 (1908) (“‘Market overt’ means a public market . . . .”). ↑

  106. See Harold R. Weinberg, Markets Overt, Voidable Titles, and Feckless Agents: Judges and Efficiency in the Antebellum Doctrine of Good Faith Purchase, 56 Tul. L. Rev. 1, 3 (1981) (describing the market overt doctrine). ↑

  107. Edward M. Swartz, The Bona Fide Purchaser Revisited: A Comparative Inquiry, 42 B.U. L. Rev. 403, 404 (1962). ↑

  108. See generally Deborah A. DeMott, Artful Good Faith: An Essay on Law, Custom, and Intermediaries in Art Markets, 62 Duke L.J. 607, 609 (2012) (“In the United States, long-standing rules of property and commercial law embody the nemo dat quod non habet principle—no one can give what one does not have—with the consequence that a thief cannot convey good title, not even when stolen property passes through the hands of an intermediary to a good-faith purchaser.”). ↑

  109. See Alan Schwartz & Robert E. Scott, Rethinking the Laws of Good Faith Purchase, 111 Colum. L. Rev. 1332, 1334 (2011). ↑

  110. Shyamkrishna Balganesh, Copyright and Good Faith Purchasers, 104 Cal. L. Rev. 269, 277 (2016) (“The market overt doctrine sought to protect purchasers who bought their goods from sellers in ‘open’ fairs and markets, which formed the principal channel for trade during the time.”); see also Pease, supra note 103, at 375 (describing the common law rule). ↑

  111. See generally Weinberg, supra note 104. ↑

  112. U.C.C. § 2-403(1)–(2) (amended 1988); see also Grant Gilmore, The Good Faith Purchase Idea and the Uniform Commercial Code: Confessions of a Repentant Draftsman, 15 Ga. L. Rev. 605, 616–17 (1981) (discussing § 2-403). ↑

  113. U.C.C. § 2-403(2). ↑

  114. Id. § 2-403(3). ↑

  115. Id. § 2-403(1). ↑

  116. Id. ↑

  117. For discussion see Gilmore, supra note 110, at 608–20. One classic type of voidable title that is clearly part of the common law and the UCC rule is a case where someone acquires defective title through a fraud in inducement such as payment by a bad check. Consider, for instance, the case of Kotis v. Nowlin Jewelry. Nowlin Jewelry, the original owner of a watch, sold it to Sitton for a check that was ultimately dishonored by the bank due to insufficient funds. Before Nowlin Jewelry discovered that the check was bad, Sitton sold the watch to Kotis. When the check was dishonored, Nowlin Jewelry sought to recover the watch on the grounds that Sitton had never acquired good title due to his fraud, and that Kotis, therefore, could not acquire good title from Sitton. Kotis, however, claimed that he had acquired good title to the watch because Sitton’s title, while defective, was “voidable,” and that Kotis therefore acquired good title as a good faith purchaser for value. The court decided that Sitton’s title was voidable and that a good faith purchaser could therefore take good title. The court reasoned that Nowlin Jewelry had intended to sell the watch to Sitton, and was deceived only about the validity of the payment. Sitton had therefore committed a “fraud in the inducement,” which is a type of fraud that leads to the defrauding acquiror obtaining voidable title. Unfortunately for Kotis, the court also determined that Kotis was not a good faith purchaser, and Nowlin Jewelry prevailed notwithstanding Kotis’s victory on the issue of voidable title. Kotis v. Nowlin Jewelry, Inc., 844 S.W.2d 920 (Tex. Ct. App. 1992). ↑

  118. Merrill & Smith, supra note 81, at 895–99. ↑

  119. Jesse Dukeminier, James E. Krier, Gregory S. Alexander, Michael H. Schill & Lior Jacob Strahilevitz, Property 662 (9th ed. 2018) (“[R]ecording acts have the function of protecting purchasers for value and lien creditors against prior unrecorded interests.”). ↑

  120. Id. at 662–63. ↑

  121. Id. at 682–85 (discussing different types of recording acts). ↑

  122. Id. ↑

  123. Id. ↑

  124. E.g., Sun Valley Land & Minerals, Inc. v. Burt, 853 P.2d 607, 613 (Idaho Ct. App. 1993). ↑

  125. M.J. Higgins, The Transfer of Property Under Illegal Transactions, 25 Modern L. Rev. 149, 149 (1969). While the shelter rule provides wide protection for the good faith purchaser, that protection is not prophylactic. One standard exception to the shelter rule is called the “original owner exception.” It provides that “when a good faith purchaser obtains the property from a grantor who had notice of an outstanding interest in the property, the shelter rule does not apply if the property is reconveyed to the grantor.” Strekal v. Espe, 114 P.3d 67, 74 (Colo. App. 2004). To illustrate this, let us return to our prior example in which Celeste conveys Blackacre first to Darlene and then to Elsa, and Elsa acquires good title due to the recording act. If Elsa sells Blackacre to the innocent Francine, Francine will enjoy the benefit of the shelter rule, and she too will be considered the owner of Blackacre with good title. If, however, Elsa sells Blackacre to Celeste, Celeste will not be able to take advantage of the shelter provided by Elsa’s recorded good faith purchase, and she will not be able to reacquire title from Elsa. A second exception to the shelter rule is when the benefiting party from the recording act then conveys to a new purchaser “who is guilty of violating a trust or duty with respect to the property.” Id. at 74. ↑

  126. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984). ↑

  127. Id. at 454–55 (“[H]ome time-shifting is fair use.”). ↑

  128. Universal City Studios v. Sony Corp. of Am., 480 F. Supp. 429, 432–33 (C.D. Cal. 1979). ↑

  129. See Jarosz v. Palmer, 766 N.E.2d 482, 487 n.3 (Mass. 2002) (dividing res judicata law into issue preclusion and claim preclusion). ↑

  130. See Gramatan Home Invs. Corp. v. Lopez, 386 N.E.2d 1328, 1331 (N.Y. 1979) (explaining that issue preclusion is necessary “to conserve judicial resources by discouraging redundant litigation”). ↑

  131. Id. ↑

  132. See, e.g., Lewis A. Grossman, The Story of Parklane: The “Litigation Crisis” and the Efficiency Imperative, in Civil Procedure Stories 387, 390–91 (Kevin M. Clermont ed., 2004). ↑

  133. 122 P.2d 892, 894 (Cal. 1942). ↑

  134. 402 U.S. 313, 313, 350 (1971). ↑

  135. Id. at 347, 350; see also Gideon Parchomovsky & Alex Stein, Intellectual Property Defenses, 113 Colum. L. Rev. 1483, 1512 (2013) (classifying patent invalidation as a general in rem defense). ↑

  136. 439 U.S. 322 (1979). ↑

  137. Id. at 331. ↑

  138. Steven P. Nonkes, Reducing the Unfair Effects of Nonmutual Issue Preclusion Through Damages Limits, 94 Cornell L. Rev. 1459, 1467–68 (2009). ↑

  139. For review, see id. at 1469–75. ↑

  140. For discussion of transaction and litigation costs, see supra Section I.B. ↑

  141. Supra Part I. ↑

  142. For a different proposed approach to follow-on works, as part of a comprehensive approach to copyright improvements, see Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 Tex. L. Rev. 989, 992 (1997). ↑

  143. See infra Section IV.B. ↑

  144. See id. ↑

  145. Statute of Anne, 1710, 8 Ann., C. 19 (Eng.) (establishing what is commonly understood to be the first legal copyright protection). ↑

  146. Copyright Act of 1976, 17 U.S.C. § 302(a). ↑

  147. Avishalom Tor & Dotan Oliar, Incentives to Create Under a “Lifetime-Plus-Years” Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldered v. Ashcroft, 36 Loy. L.A. L. Rev. 437, 437–48 (2002) (discussing the incentive effects of the move to a single fixed term in the 1976 Copyright Act). ↑

  148. See id. at 450 n.39 (surveying the history of copyright protection terms under various copyright acts). ↑

  149. Copyright Act of 1909, 17 U.S.C. § 24 (1970). ↑

  150. Id. ↑

  151. Id. ↑

  152. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 9.01 (Matthew Bender ed., 2021) (reviewing the history of the copyright terms). ↑

  153. Id. § 9.05. ↑

  154. Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (1992). ↑

  155. Nimmer & Nimmer, supra note 150, at § 9.05. ↑

  156. See, e.g., G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (2d Cir. 1951) (holding the renewal right “creates a new estate, and the few cases which have dealt with the subject assert that the new estate is clear of all rights, interests or licenses granted under the original copyright”). ↑

  157. Copyright Act of 1909, 17 U.S.C. § 24 (1970). ↑

  158. See Seymour M. Bricker, Renewal and Extension of Copyright, 29 S. Cal. L. Rev. 23, 24 (1955) (outlining the history of copyright renewal and ownership rights in the common law). ↑

  159. Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 659 (1943). ↑

  160. Id. ↑

  161. See, e.g., De Sylva v. Ballentine, 351 U.S. 570, 573 (1956) (“The statute is hardly unambiguous, however, and presents problems of interpretation not solved by literal application of words as they are ‘normally’ used.”). ↑

  162. Copyright Act of 1909, 17 U.S.C. § 24 (1970). ↑

  163. See Jeffrey M. Lowy, When Does the Renewal Term Vest: Before and After the Copyright Renewal Act of 1992, 13 Loy. L.A. Ent. L. Rev. 437, 438–40 (1993). ↑

  164. 551 F.2d 484 (2d Cir. 1977). ↑

  165. Id. at 486. ↑

  166. Id. ↑

  167. Id. ↑

  168. Id. ↑

  169. Id. ↑

  170. Id. at 487. ↑

  171. Id. at 492–94. ↑

  172. Id. ↑

  173. Nimmer & Nimmer, supra note 150, at § 3.07. ↑

  174. 495 U.S. 207 (1990). ↑

  175. Id. at 211–12. ↑

  176. Id. at 212. ↑

  177. Id. ↑

  178. Id. ↑

  179. Id. ↑

  180. Id. ↑

  181. Id. at 212–14. ↑

  182. Id. at 223–24. ↑

  183. Id. at 228. ↑

  184.  Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (codified as amended 17 U.S.C. § 102(a)(4)(A)). ↑

  185. 17 U.S.C. § 304(a)(4)(A). ↑

  186. See Lowy, supra note 161, at 468–69 (“The main purpose of the Copyright Renewal Act of 1992 is to provide a system of automatic renewal of copyrights.”). ↑

  187. Id. ↑

  188. Id. at 473. ↑

  189. Copyright Act of 1976, 17 U.S.C. § 302(a). ↑

  190. Lowy, supra note 161, at 471–72. ↑

  191. 17 U.S.C. § 203(a). ↑

  192. Id. §§ 203(a), 304(c)–(d). ↑

  193. See, e.g., Kristelia A. García and Justin McCrary, A Reconsideration of Copyright’s Term, 71 Ala. L. Rev. 351 (2019) (noting that “[l]ike termination rights, rights reversion gives the creator a second bite of the apple by reversing an artist’s original transfer of copyright ownership, thereby transferring ownership over a work’s copyright back from an intermediary to the original artist”). ↑

  194. Lydia Pallas Loren, Renegotiating the Copyright Deal in the Shadow of the “Inalienable” Right to Terminate, 62 Fla. L. Rev. 1329, at 1345–46 (2010). ↑

  195. See Nimmer & Nimmer, supra note 150, at § 11.02[A][3]. ↑

  196. Sonny Bono Copyright Term Extension Act, Pub. L. No 105-298, 112 Stat. 2827 (1998). ↑

  197. Cf. Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 124 (2d Cir. 2013) (concerning attempted termination by the children of comic book artist Jack Kirby of transfer to Marvel of rights in characters such as Spider-Man, the Fantastic Four, and the X-Men); Siegel v. Warner Bros. Ent. Inc., 542 F. Supp. 2d 1098, 1114 (C.D. Cal. 2008) (concerning attempted termination by Superman creators Jerry Siegel and Joe Shuster of transfer of rights to Superman). ↑

  198. Copyright Act of 1976, 17 U.S.C. § 304(c)(6)(A). ↑

  199. Pub. L. No. 100-568, 102 Stat. 2853 (1988). ↑

  200. Pub. L. No. 103-465, 108 Stat. 4976 (1994). ↑

  201. Tung Yin, Reviving Fallen Copyrights: A Constitutional Analysis of Section 514 of the Uruguay Round Agreements Act of 1994, 17 Loy. L.A. Ent. L.J. 383, 384 (1997). ↑

  202. See Nimmer & Nimmer, supra note 150, at § 9A.04[A][1][a]. ↑

  203. Id. §§ 7.02–7.03. ↑

  204. Copyright Act of 1976, 17 U.S.C. § 104A. ↑

  205. Id. ↑

  206. Id. § 104A(d)(3)(A) (“[A] reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement . . . .”). ↑

  207. Id. § 104A(d)(2)(B) (outlining a twelve-month grace period for reliance parties beginning on the date notice is given of intent to restore a copyright). ↑

  208. Id. ↑

  209. Copyright Act of 1976, 17 U.S.C. § 104A(d)(2)(B). ↑

  210. Id. § 104A(d)(3). ↑

  211. Id. ↑

From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People

In June 2021, Britney Spears made headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’s dreadful experiences are a glaring reminder that nearly 100 years after the infamous Buck v. Bell decision, reproduction is still weaponized to subjugate people with disabilities. Indeed, the reproductive oppression experienced by Britney Spears and other people with actual or perceived disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Confronting these persistent inequities will require us to radically transform our laws and policies. This Essay responds to the ongoing reproductive injustice experienced by disabled people by proposing a vision to assist activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. The guiding principles set forth herein are intended to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for action could not be more timely or clear.

Introduction

“I want to be able to get married and have a baby . . . . I wanted to take the (IUD) out so I could start trying to have another baby. But this so-called team won’t let me go to the doctor to take it out because they don’t want me to have children—any more children.” – Britney Spears1 1.Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized’, Variety (June 23, 2021, 3:59 PM), https://variety.com/2021/music/‌news/britney-spears-full-statement-conservatorship-1235003940/ [https://perma.cc/QJ6Y-9UBH] (transcript of Spears’s June 23, 2021, statement to Los Angeles Superior Court Judge, Brenda Penny).Show More

On June 23, 2021, Britney Spears delivered a twenty-four-minute statement to the Los Angeles Superior Court passionately pleading for an end to the thirteen-year conservatorship to which she has been subjected.2 2.Id. At the time of this writing, Britney Spears’s case is ongoing. On September 29, 2021, the court suspended Britney Spears’s father, James Spears, as his daughter’s conservator and temporarily replaced him with a new conservator. Joe Coscarelli, Julia Jacobs & Liz Day, Judge Frees Spears From Father’s Control (Oct. 2, 2021), https://www.nytimes.com/‌2021/09/29/arts/music/britney-spears-court-decision-conservatorship.html [https://perma.cc/9N3S-S8NA]. The court has scheduled a hearing for November 12, 2021, to determine whether the conservatorship should end.Id.Show More In her heartbreaking testimony, Britney Spears presented a lengthy list of abuses she has allegedly endured, including surveillance, confinement, forced medication, and arduous labor demands.3 3.Aswad, supra note 1.Show More One detail stood out as especially egregious: Britney Spears wants to get married and have more children but is being prevented from doing so because her conservators will not authorize the removal of her intrauterine device (“IUD”).4 4.Id.Show More The juxtaposed responses of people with and without disabilities are a telling commentary on the state of reproductive freedom for disabled people.5 5.Consistent with disability rights and disability justice movements, this Essay acknowledges the importance of language in shaping how we think about disability and how ableism can pervade language choices as well as reflect and perpetuate disability-based subordination. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya(Feb. 27, 2021), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/HS2F-LJ2C]. To that end, I use person-first and identity-first language interchangeably (e.g., “parents with disabilities” and “disabled parents”) in recognition of the disability community’s diverse language preferences. See generally Dana S. Dunn & Erin E. Andrews, Person-First and Identity-First Language: Developing Psychologists’ Cultural Competence Using Disability Language, 70 Am. Psych. 255 (2015) (exploring the evolving language preferences among people with disabilities).Show More Fans, celebrities, and public officials, on the one hand, expressed horror and astonishment that such reproductive oppression was lawfully occurring in the United States.6 6.See, e.g., @yooitsmo, Twitter (June 24, 2021, 11:58 AM), https://twitter.com/yooitsmo/‌status/1408092248265445387 [https://perma.cc/UX86-TLL3] (“I’m sorry but…Britney HAS to keep an [IUD] in under her conservatorship??? How is any of this legal/okay???”); Meghan McCain (@MeghanMcCain), Twitter (June 23, 2021, 9:14 PM), https://twitter.com/‌MeghanMcCain/‌status/1407869786156146689 [https://perma.cc/T7S7-3X6G] (“This goes beyond any normal courts, there should be human rights violations investigations. Britney Spears was held captive, out in the open and we gawked at her and didn’t listen. This is how we treat famous women. Thank God she didn’t kill herself. There is a rot in our culture”); Congresswoman Katie Porter (@katieporteroc), Twitter (June 24, 2021, 7:25 PM), https://twitter.com/katieporteroc/status/1408204566592561157 [https://perma.cc/‌AA53-C7WG] (“Every American—regardless of their gender identity or disability status—ought to be able to make decisions about their own bodies. #FreeBritney”).Show More People with disabilities, on the other hand, while enraged, were not surprised that Britney Spears’s conservator was exerting reproductive control over her, explaining that such efforts are emblematic of the United States’ ongoing practice of weaponizing their reproduction to subjugate them.7 7.See, e.g., Imani Barbarin (@Imani_Barbarin), Twitter (June 24, 2021, 10:54 AM), https://twitter.com/Imani_Barbarin/status/1408076140028305422 [https://perma.cc/3W8S-DPTB] (“I don’t like the gaslighting that goes on when disabled people tell y’all that what’s happening with #FreeBritney is not at all unique. You just have a hierarchy of disability and a point at which you think someone is “too disabled” to care about.”); Sarah Lerner (@SarahLerner), Twitter (June 23, 2021, 6:42 PM), https://twitter.com/SarahLerner/status/‌1407831499164962817 [https://perma.cc/A8BU-TS75] (“Britney Spears being held under a 13-year conservatorship and being forced to keep her IUD in despite the fact that she wants another child is where disability rights and reproductive rights intertwine.”); Dr. Sherri G. (@onlymeindc), Twitter (June 24, 2021, 9:27 PM), https://twitter.com/onlymeindc/‌status/1408235268545519617 [https://perma.cc/UV6J-LU5J] (“The Britney Spears situation is most definitely a disability rights issue. The medical and social models of disability are clashing right in front of your eyes. One model boils us down to impairment through oppressive paternalism forcing us in the sick role and the other doesn’t.”); Eric Michael Garcia (@EricMGarcia), Twitter (June 23, 2021, 5:55 PM), https://twitter.com/EricMGarcia/‌status/1407819545394434051 [https://perma.cc/8BKP-PMAL] (“As always, it’s important to remember that #FreeBritney is a disability rights issue. If the state can do this to one of the most influential pop stars in my lifetime, think about what it can do to others.”).Show More

Britney Spears’s experiences are neither unique nor uncommon. Rather, the belief that people with actual or perceived disabilities—including physical, intellectual, sensory, and psychiatric disabilities—should not have reproductive autonomy is woven into our nation’s fabric.8 8.See infra Part I (contextualizing the United States’ history of the reproductive oppression of people with disabilities and the ways in which it persists today).Show More Each day, disabled people experience reproductive oppression, including forced sterilization, coerced abortion, inadequate access to sexual and reproductive health services and information, and loss of custody of their children.9 9.Id.Show More The injustices are even more pronounced for multiply marginalized people with disabilities, including disabled people of color and LGBTQ+ people.10 10.Zoe Brennan-Krohn & Rebecca McCray, Britney Spears’ Reproductive Freedom Is a Disability Rights Issue, ACLU (June 25, 2021), https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/ [https://perma.cc/KZ9E-75WS] (“Spears’ experience is part of a long history of people with disabilities—most often people of color—being robbed of the right to control their reproductive destinies.”); Nat’l LGBTQ Task Force, Queering Reproductive Justice: A Toolkit 5–7 (Zsea Beaumonis, Candace Bond-Theriault, Stacey Long Simmons & Sabrina Rewald eds., 2017), https://www.thetaskforce.org/wp-content/uploads/2017/03/Queering-Reproductive-Justice-A-Toolkit-FINAL.pdf [https://perma.cc/5L88-TMXB].Show More The reproductive oppression experienced by disabled people is deeply entrenched in our laws, in our policies, and perhaps most importantly, in our collective conscience. To transform our society into one that respects and supports reproductive freedom for people with disabilities, therefore, the systems that propagate these injustices must be entirely dismantled.

This Essay responds to the persistent reproductive oppression experienced by people with disabilities by proposing a vision to help activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. Part I examines the social context, institutions, and history that perpetuate reproductive oppression among people with disabilities in the United States. It describes the origins of weaponizing reproduction to subjugate disabled people and contemporary examples of such injustice. Part II explores two complementary frameworks for analyzing and confronting the reproductive oppression of disabled people: reproductive justice and disability justice. Finally, guided by reproductive justice and disability justice, Part III proposes four guiding principles necessary for a jurisprudential and legislative agenda to achieve and deliver reproductive justice for people with disabilities.

I. Persistent Reproductive Injustice

The recent revelations of the reproductive control being exerted by Britney Spears’s conservator must be situated within the nation’s long and reprehensible history of weaponizing reproduction to oppress disabled people, as well as other marginalized communities. This Part limns the ways in which laws and policies have led to the reproductive oppression of people with disabilities—particularly girls and women with disabilities11 11.Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8Berkeley Women’s L.J. 122, 123–24 (1993) (“Only a few of the dozens of cases regarding involuntary sterilizations involve the sterilization of males. Therefore, sterilization practice is interwoven with the issue of control of female reproductive rights and, to some extent, of female sexual expression.”). But seeIn reGuardianship of Kennedy, 845 N.W.2d 707, 708–09 (Iowa 2014) (evaluating an appeal brought by a 21-year-old man with intellectual disabilities challenging the legality of a vasectomy his guardian had arranged for him without obtaining a court order); Renu Barton-Hanson, Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway?, 15 Med. L. Int’l 49, 57–58 (2015) (examining recent cases concerning sterilization of men with intellectual disabilities and noting the frequent justification as purportedly promoting sexual freedom).Show More—beginning with the eugenics movement. Without attempting to provide a complete description of the myriad ways in which reproduction has been weaponized to subjugate disabled people, this Part highlights examples of how these practices have lawfully endured over time, focusing primarily on contemporary practices.

A. Historical Reproductive Injustice

The United States has a horrible history of preventing disabled people from controlling their destinies, including enacting laws and policies restricting their reproductive decision-making. During the eugenics movement of the early 1900s, more than thirty states passed involuntary sterilization laws, postulating that people with disabilities and other marginalized communities were socially inadequate and should be prevented from procreating.12 12.See Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. Louisville J. Fam. L. 947, 948, 953–54 (1993) (“The purpose of these laws was to protect and streamline society by preventing reproduction by those deemed socially or mentally inferior.”).Show More This line of reasoning underscored the infamous 1927 Buck v. Bell decision.13 13.274 U.S. 200 (1927).Show More Carrie Buck was purportedly a “feeble minded” woman institutionalized in Virginia.14 14.Id. at 205; see also Stephen Jay Gould, Carrie Buck’s Daughter, 2 Const. Comment.331, 336 (1985) (asserting that Buck was not “feebleminded” but rather institutionalized to hide her rape).Show More She was likewise the daughter of a “feeble minded” woman committed to the same institution.15 15.Buck, 274 U.S. at 205; Gould, supra note 14, at 334.Show More At seventeen years old, Carrie Buck became pregnant after being raped; her daughter Vivian was also deemed “feebleminded.”16 16.Gould, supra note 14, at 333, 336; Buck, 274 U.S. at 205.Show More After Vivian’s birth, the institution sought to sterilize Carrie Buck in accordance with Virginia’s compulsory sterilization statute.17 17.Buck, 274 U.S. at 205–06; Gould, supra note 14, at 331.Show More It should be noted that Vivian was removed from her mother after birth and placed in a foster home.18 18.Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 104–05 (2008).Show More Following a series of appeals, the law was upheld as constitutional in part on the grounds that it served “the best interests of the patients and of society.”19 19.Buck, 274 U.S. at 206–08.Show More Concluding this historical decision, Justice Oliver Wendell Holmes, Jr. declared, “It is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind.”20 20.Id. at 207.Show More During the twentieth century, as many as 70,000 Americans, many of whom were people of color or whom had disabilities, were sterilized.21 21.Fresh Air, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 17, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/5KYD-Z79X].Show More Notably, Buck v. Bell has never been overturned.22 22.Fifteen years after Buck v. Bell was decided, the Supreme Court struck down an Oklahoma law requiring that people with two or more convictions for felonious offenses be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 536–37, 543 (1942). Although both Skinner and Buck concern involuntary sterilization statutes, Skinner’s analysis took a narrower focus, relating only to the punitive sterilization of criminals, thereby avoiding addressing the forced sterilization of people with disabilities. Id. at 542–43.Show More

Laws forbidding people with disabilities from marrying were another hallmark of the eugenics movement.23 23.Brooke Pietrzak, Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment, 17 Dev. Mental Health L. 1, 34–35 (1997).Show More Specifically, three eugenics-based justifications were put forth to advance marriage restrictions: “the potential children must be protected; people with [disabilities] themselves must be protected; and society at large must be protected.”24 24.Id. at 35.Show More For example, a Connecticut law banned “epileptics, imbeciles, and feebleminded persons” from marrying or having extramarital sexual relations before the age of forty-five.25 25.Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981).Show More In 1974, a study found that over forty states had laws preventing people with intellectual disabilities from marrying.26 26.President’s Comm. on Mental Retardation, OHD 74-21002, Silent Minority 33 (1974).Show More The most recent systematic investigation of these statutes was undertaken in 1997 and found that thirty-three states still had laws restricting people with intellectual or psychiatric disabilities from marrying.27 27.Pietrzak, supra note 23, at 1–2. Although no known studies have systematically examined marriage laws as they apply to people with disabilities, scholars contend that these statutes continue to exist in some states. Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 548–49 (2014).Show More

B. Contemporary Reproductive Injustice

As Britney Spears’s recent testimony demonstrates, people with disabilities’ reproductive freedom continues to be controlled in a multitude of ways. For example, while nearly all states have repealed their involuntary sterilization laws, most states still permit sterilization with prior judicial authorization.28 28.See Vanessa Volz, Note, A Matter of Choice: Women with Disabilities, Sterilization, and Reproductive Autonomy in the Twenty-First Century, 27 Women’s Rts. L. Rep. 203, 207–08 (2006).Show More Recently, the parents of Mary Moe,29 29.Mary Moe is a pseudonym; Massachusetts General Law requires that informed consent proceedings for an abortion be kept confidential. Mass. Gen. Laws ch. 112, § 12R (2020).Show More a 32-year-old pregnant woman with a psychiatric disability, petitioned a Massachusetts court for guardianship over Mary Moe to consent to an abortion.30 30.In re Guardianship of Mary Moe, 960 N.E.2d 350, 352 (Mass. App. Ct. 2012).Show More Although Mary Moe vehemently opposed abortion, the trial court appointed her parents as co-guardians and authorized that Mary Moe be “coaxed, bribed, or even enticed . . . by ruse” into a hospital for an abortion.31 31.Id. at 353 (quoting the family court’s decision).Show More Further, the trial judge ordered sua sponte, and without notice, that Mary Moe be sterilized “to avoid this painful situation from recurring in the future.”32 32.Id. (quoting the family court’s decision).Show More Eventually, the decision was reversed on appeal, with the appellate court noting in regard to the sterilization order, “No party requested this measure, none of the attendant procedural requirements has been met, and the judge appears to have simply produced the requirement out of thin air.”33 33.Id. at 355.Show More Although Moe’s case had a positive outcome consistent with her articulated desires, her case demonstrates how disabled people experience threats to their reproductive freedom even with supposed judicial protections.

The “Ashley X” case provides another disturbing example of how the reproductive freedom of people with disabilities is subordinated. Ashley was a young girl with intellectual and physical disabilities.34 34.Daniel F. Gunther & Douglas S. Diekema, Attenuating Growth in Children with Profound Developmental Disability: A New Approach to an Old Dilemma, 160 Archives Pediatrics & Adolescent Med. 1013, 1014 (2006); Marcia H. Rioux & Lora Patton, Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence, in Critical Perspectives on Human Rights and Disability Law 243, 243–44 (Marcia H. Rioux, Lee Ann Basser & Melinda Jones eds., 2011).Show More In 2004, at age six, a Washington hospital, with Ashley’s parents’ permission, performed a series of procedures, including growth attenuation via hormone therapy, a hysterectomy, and bilateral breast bud removal.35 35.Gunther & Diekema, supranote 34; Rioux & Patton, supra note 34, at 244.Show More Her physicians and family justified the permanent alteration of her body by arguing that the procedures ensured “the best possible quality of life,” by enabling her to be more easily cared for by her family, while also allowing her to “retain more dignity in a body that is healthier, more of a comfort to her, and more suited to her state of development.”36 36.The “Ashley Treatment”, Towards a Better Quality of Life for “Pillow Angels”, at 3, 12 (Mar. 17, 2012), http://pillowangel.org/Ashley%20Treatment.pdf [https://perma.cc/8E3Z-VCEQ] (the document is authored by: “Ashley’s Mom and Dad”).Show More Further, Ashley’s parents asserted, “Ashley has no need for her uterus since she will not be bearing children,”37 37.Id. at 10.Show More and her physicians contended that the hysterectomy benefited both Ashley and her family because it “eliminate[d] the complications of menses.”38 38.Gunther & Diekema, supranote 34, at 1015.Show More Thus, Ashley’s “best interest was equated with her parents’ ability to maintain her at home and being easily able to carry and move her.”39 39.Rioux & Patton, supra note 34, at 244–45.Show More Notably, Ashley’s parents successfully sought these procedures with just the authorization of an internal ethics board and not through adjudication.40 40.Id. at 244.Show More Years later, an investigation revealed that the hospital had violated state law in this matter.41 41.Amy Burkholder, Report: ‘Pillow Angel’ Surgery Broke Law, CNN (May 8, 2007), http://www.cnn.com/2007/HEALTH/05/08/ashley.ruling/index.html [https://perma.cc/Z8RD-LF78] (“Children’s Hospital, in acknowledging its error, said that beyond implementing changes to ensure that sterilization of disabled children doesn’t happen again without a court order, it will seek court approval for other procedures involved in the controversial growth attenuation therapy.”).Show More Nonetheless, the “Ashley Treatment” remains accepted globally, with more than 100 families estimated to have subjected their children to similar procedures while thousands more are said to have considered it.42 42.Ed Pilkington & Karen McVeigh, ‘Ashley Treatment’ on the Rise Amid Concerns from Disability Rights Groups, The Guardian (Mar. 15, 2012) http://www.guardian.co.uk/society/‌2012/mar/15/ashley-treatment-rise-amid-concerns/ [https://perma.cc/B5WF-ENKY].Show More Thus, “[i]f the parents and doctors are all on board, these sorts of sterilization decisions can easily fly under the radar and evade mechanisms of legal accountability.”43 43.Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 289 (2020).Show More

Sterilization remains a standard procedure for many people with disabilities. Indeed, several recent studies have found that disabled women, especially those with intellectual disabilities, are significantly more likely than nondisabled women to be sterilized and at younger ages.44 44.See Justine P. Wu et al., Female Sterilization Is More Common Among Women with Physical and/or Sensory Disabilities than Women Without Disabilities in the United States, 10 Disability & Health J. 400, 403 (2017); William Mosher et al., Contraceptive Use by Disability Status: New National Estimates from the National Survey of Family Growth, 97 Contraception 552, 555 (2018); Henan Li et al., Female Sterilization and Cognitive Disability in the United States, 2011–2015, 132 Obstetrics & Gynecology 559, 561 (2018).Show More Further, today, sterilization of people with disabilities is primarily “driven by parents, guardians, and social service providers who are uneasy . . . [that] they will incur the additional burden of caring for the offspring.”45 45.Beverly Horsburgh, Schrödinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 Cardozo L. Rev. 531, 572 (1996).Show More Tellingly, in petitions to courts for approval to sterilize people with disabilities or terminate their pregnancies, guardians often cite cost as a prevailing factor.46 46.Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 Berkeley Women’s L.J. 122, 126 (1993).Show More In fact, in authorizing the sterilization of disabled people, courts often advance analogous presumptions to those put forward in Buck, such as that people with disabilities are “incapable of adequate parenting” and their children will “inevitably be a financial burden on the state.”47 47.Id.Show More Thus, while the “[e]ugenic rhetoric might have declined,” the “eugenic motivations and eugenic laws did not.”48 48.Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14 Cardozo J.L. & Gender 319, 350 (2008).Show More While sterilization should unquestionably be an option for permanent contraception for people who choose it, given the country’s history, it is not difficult to imagine that many of these sterilizations may be coerced.

Inadequate access to sexual and reproductive health services and information, including contraception, also thwarts disabled people’s reproductive autonomy. As Britney Spears’s experiences demonstrate, there is significant tension concerning people with disabilities and contraception. On the one hand, research indicates that disabled women have less contraception knowledge and lower contraception use compared to nondisabled women.49 49.Robyn M. Powell, Susan L. Parish, Monika Mitra, & Eliana Rosenthal, Role of Family Caregivers Regarding Sexual and Reproductive Health for Women and Girls with Intellectual Disability: A Scoping Review, 64 J. Intell. Disability Rsch. 131, 132 (2020) (citing studies).Show More On the other hand, like Britney Spears, some women with disabilities are forced by family members or guardians to use contraception out of fear that their disabled relative will become pregnant.50 50.Id. at 151 (citing studies).Show More In these instances, Britney Spears and others are in effect sterilized since they cannot reproduce due to forced contraception. Thus, some disabled people have inadequate access while other people are denied contraceptive decision-making. Extant research also suggests that pregnant women with disabilities experience higher risks of complications and poorer outcomes than nondisabled women because of inadequate access to health care.51 51.Monika Mitra, Linda M. Long-Bellil, Suzanne C. Smeltzer & Lisa I. Iezzoni, A Perinatal Health Framework for Women with Physical Disabilities, 8 Disability Health J.499, 499 (2015) (citing studies); Lesley A. Tarasoff et al., Health of Newborns and Infants Born to Women with Disabilities: A Meta-Analysis, 146 Pediatrics, e20201635, at 2 (2020) (citing studies); Ilhom Akobirshoev, Susan L. Parish, Monika Mitra & Eliana Rosenthal, Birth Outcomes Among US Women with Intellectual and Developmental Disabilities, 10 Disability & Health J. 406, 409tbl. 2 (2017) (comparing maternal and infant outcomes of women with and without intellectual disabilities).Show More Indeed, adverse perinatal outcomes are often the result of physical barriers, communication barriers, and programmatic barriers, including healthcare providers’ negative attitudes about sexuality and reproduction among disabled women.52 52.Robyn M. Powell, Erin E. Andrews & Kara B. Ayers, Becoming a Disabled Parent: Eliminating Access Barriers to Health Care Before, During, and After Pregnancy, 96 Tul. L. Rev. (forthcoming 2021) (manuscript at 2), https://papers.ssrn.com/sol3/papers.cfm?abstract‌_id=3808017 [https://perma.cc/3JD2-WD5G] (interviewing disabled parents about their experiences accessing health care services).Show More

Finally, prejudice and speculation about the competencies of parents with disabilities—emulating those raised during the eugenics movement—have led to contemporary discriminatory child welfare, family law, and adoption and foster care policies and practices that assume parental unfitness.53 53.See generally Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 15 (2012) [hereinafter “Rocking the Cradle”], https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/UB7C-XMMG] (“The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities—including intellectual and developmental, psychiatric, sensory, and physical disabilities—experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.”).Show More For example, disabled parents experience disproportionate rates of child welfare system involvement and loss of parental rights.54 54.Id. at 16.Show More Parents with disabilities also contend with state statutes that include disability as grounds for the termination of parental rights.55 55.Id. at 265–300 (finding that over two-thirds of state dependency laws list parental disability as grounds for termination of parental rights).Show More Family courts often deny parents with disabilities custody of or visitation with their children.56 56.Robyn M. Powell, Family Law, Parents with Disabilities, and the Americans with Disabilities Act, 57 Fam. Ct. Rev. 37, 38 (2019) (“Indeed, parents with disabilities contend with substantial and persistent bias within the family law system, often threatening their custody and visitation rights.”).Show More For example, Britney Spears has had limited access to her children since she was placed under conservatorship.57 57.Laura Rizzo, Inside Britney Spears’ Custody Battle with Kevin Federline for Kids Sean Preston and Jayden, Life & Style Mag. (June 24, 2021), https://www.lifeandstylemag.com/‌posts/does-britney-spears-have-custody-of-kids-preston-and-jayden/ [https://perma.cc/EQY3-9KZ3] (explaining that Britney Spears had 30% custody at the time and was reportedly seeking 50%).Show More Meanwhile, foster care and adoption agencies regularly discriminate against prospective disabled parents based on presumptions that they are unfit to care for children.58 58.Rocking the Cradle,supranote 53, at 153–66 (describing the ways prospective parents with disabilities experience discrimination within the foster care and adoption system).Show More

II. Reproductive Justice and Disability Justice

Britney Spears’s tragic experiences are a stark reminder that nearly 100 years after the infamous Buck v. Bell decision, reproductive freedom is still denied to far too many disabled people, often because of discriminatory laws and policies. Thus, attention by activists, legal professionals, scholars, and policymakers to these matters is urgently needed. The four guiding principles for achieving reproductive justice for disabled people proposed in Part III infra are guided by two complementary frameworks: reproductive justice and disability justice. Both reproductive justice and disability justice are intersectional social movements, theories, and praxes which provide important lenses for analyzing and responding to the ongoing weaponization of reproduction to subjugate people with disabilities. This Part briefly describes each framework.

A. Reproductive Justice

Reproductive justice is based on the international human rights framework. It draws from reproductive rights and social justice. Reproductive justice was first “conceived in 1994 by feminists of color to conceptualize reproductive rights struggles embedded in social justice organizing that simultaneously challenged racism and classism, among other oppressions.”59 59.Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 328 (2013).Show More According to Loretta Ross, co-founder of the SisterSong Women of Color Reproductive Health Collective, “[t]he Reproductive Justice framework analyzes how the ability of any woman to determine her own reproductive destiny is linked directly to the conditions in her community—and these conditions are not just a matter of individual choice and access.”60 60.Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social Change 4, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 [https://perma.cc/5SSG-QVSD] (last visited Oct. 1, 2021) [hereinafter “Reproductive Justice Briefing Book”].Show More

Drawing from intersectionality, which “illustrate[s] how racial and gender oppression interact in the lives of Black women,”61 61.Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 73 (2017).Show More reproductive justice is “based on the understanding that the impacts of race, class, gender, and sexual identity oppressions are not additive but integrative,”62 62.Id. at 74.Show More and understands that only a holistic lens can address them. Accordingly, reproductive justice centers on “the ways in which aspects of social status and social identity (e.g., age, race/ethnicity, socioeconomic class, sexual orientation, gender identity, religion, ability) combine to impact women’s experiences.”63 63.Joan C. Chrisler, Introduction: A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Women & L. 1, 4 (2013).Show More In other words, reproductive justice recognizes the ways in which intersecting factors, such as race and disability, constrain the reproductive freedom of marginalized communities.

Reproductive justice emerged as a movement because women of color and other marginalized communities felt that the reproductive rights movement disregarded their needs and experiences.64 64.Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 75 (2011).Show More Reproductive justice, therefore, goes beyond our traditional understanding of reproductive rights in two critical ways. First, reproductive justice recognizes the importance of choice while also considering the broader social, legal, and institutional structures that affect people’s reproductive decision-making.65 65.Reproductive Justice Briefing Book, supranote 60, at 4. (“Moving beyond a demand for privacy and respect for individual decision making to include the social supports necessary for our individual decisions to be optimally realized, this framework also includes obligations from our government for protecting women’s human rights. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.”).Show More Second, and relatedly, reproductive justice applies to all aspects of reproductive freedom instead of just abortion rights.66 66.Id. (“Instead of focusing on the means—a divisive debate on abortion and birth control that neglects the real-life experiences of women and girls— the Reproductive Justice analysis focuses on the ends: better lives for women, healthier families, and sustainable communities.”).Show More Accordingly, reproductive justice “includes not only a woman’s right not to have a child, but also the right to have children and to raise them with dignity in safe, healthy, and supportive environments.”67 67.Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall 2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/C37U-GS88]; see also Luna & Luker, supra note 59, at 343 (“[R]eproductive justice is equally about the right to not have children, the right to have children, the right to parent with dignity, and the means to achieve these rights.”).Show More Thus, “[b]y moving beyond the traditional pro-choice narrative and into the reality of lived experiences within the women’s communities, the reproductive justice movement focuses on the inequality among groups of women that inhibits access to these rights for some more than others.”68 68.Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325, 343 (2019).Show More In other words, reproductive justice challenges the pro-choice/pro-life dichotomy, viewing “choice” as something that divides people in policy and practice because it accepts that all people have an equal ability to make the same choices.

Reproductive justice necessitates “an integrated approach that draws on constitutional protections and movement-based policy strategies.”69 69.Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2240 (2018).Show More Further, reproductive justice recognizes that “many kinds of laws shape the conditions in which women conceive and bear children.”70 70.Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 210 (2018).Show More Reproductive justice emphasizes an affirmative government role “in ensuring that all women have the social, political, and economic power and resources to make the best decisions for themselves and their families.”71 71.Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-Choice and Disability Rights Communities Together, 84 Contraception 541, 542 (2011).Show More Rather than relying only on litigation and attorneys, reproductive justice also engages in grassroots and community organizing.72 72.London, supra note 64, at 71–72.Show More

Extant legal scholarship has demonstrated the importance of applying reproductive justice to dissect and address the reproductive oppression of people with disabilities.73 73.See, e.g., Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender & Soc. Just. 607, 628–31 (2021) (examining the history of eugenics in the United States and calling for a justice-based approach to address the role of ableism in eugenics); Bagenstos, supra note 43, at 279–86; Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev. 587, 627–30 (2017) (describing ways in which reproductive justice should be used to advocate for programs to support people with disabilities as a mechanism for reducing disability-based abortions); Mohapatra, supra note 68, at 325–27 (2019) (using the Zika virus to highlight the tensions between reproductive rights and disability rights); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 316–18 (2013) (proposing how organizing based on an intersectional analysis can help facilitate alliances between reproductive justice, racial justice, women’s rights, and disability rights activists to develop strategies to address reproductive genetic technologies); Roberts, supra note 67 (describing the failures of the reproductive rights movement to respond to the needs of marginalized communities, including people with disabilities, and calling for a reproductive justice framework instead).Show More As Samuel Bagenstos notes, “[j]ust as ‘regulating Black women’s reproductive decisions has been a central aspect of racial oppression in America,’ regulating disabled people’s reproductive decisions has been a central aspect of disability oppression in America.”74 74.Bagenstos, supranote 43, at 285 (quoting Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 6 (1997)).Show More Hence, reproductive justice can be engaged to confront the myriad oppressions that prohibit people with disabilities from enjoying their reproductive freedoms by confronting and disrupting the longstanding systems that propagate reproductive injustice.

B. Disability Justice

Disability justice is an equally important lens for dislocating the nation’s ongoing reproductive oppression of people with disabilities. Indeed, “reproductive justice is disability justice.”75 75.Sins Invalid, Skin, Tooth, and Bone—The Basis of Movement is Our People: A Disability Justice Primer 59 (2d ed. 2019) (capital letters omitted).Show More Specifically, disability justice provides an important framework for examining ableism as it relates to other forms of oppression and identity. Disability justice was first conceived in 2005 by the Disability Justice Collaborative, a group of Black, brown, queer, and trans people.76 76.Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice 11 (2018).Show More Disability justice includes ten fundamental principles needed to achieve a truly inclusive and just society: “intersectionality . . . leadership of those most impacted . . . anti-capitalist politics . . . cross-movement solidarity . . . recognizing wholeness . . . sustainability . . . commitment to cross-disability solidarity . . . interdependence . . . collective access . . . [and] collective liberation.”77 77.Sins Invalid, supranote 75, at 22–26 (capital letters omitted).Show More

Similar to reproductive justice, disability justice distinguishes itself from a rights-based approach and calls for a holistic approach to disrupting the longstanding systems that cause oppression. According to Sins Invalid, a disability justice performance project, “Rights-based strategies often address the symptoms of inequity but not the root. The root of disability oppression is ableism and we must work to understand it, combat it, and create alternative practices rooted in justice.”78 78.Id. at 15, 47.Show More Thus, “[w]here disability rights seeks to change social conditions for some disabled people via law and policy, disability justice moves beyond law and policy: It seeks to radically transform social conditions and norms in order to affirm and support all people’s inherent right to live and thrive.”79 79.Talila “TL” Lewis, Disability Justice Is an Essential Part of Abolishing Police and Prisons, Level (Oct. 7, 2020), https://level.medium.com/disability-justice-is-an-essential-part-of-abolishing-police-and-prisons-2b4a019b5730 [https://perma.cc/J5QL-9UNR].Show More In other words, “[a]t its core, the disability rights framework centers people who can achieve status, power and access through a legal or rights-based framework, which we know is not possible for many disabled people, or appropriate for all situations.”80 80.Sins Invalid, supra note 75, at 15.Show More Disability justice is based on community and grassroots organizing.

Further, like reproductive justice, intersectionality81 81.In 1989, Kimberlé Crenshaw coined the term “intersectionality” to help explain the oppression of African-American women. SeeKimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U. Chi. Legal F. 139, 140 (1989). Since then, intersectionality has been used to study how people who are members of multiple socially marginalized communities experience discrimination, including people with disabilities. See, e.g., Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209, 211–22 (2010).Show More is a fundamental aspect of disability justice. Indeed, disability justice was developed as a “movement-building framework that would center the lives, needs, and organizing strategies of disabled queer and trans and/or Black and brown people marginalized from mainstream disability rights organizing’s white-dominated, single-issue focus.”82 82.Piepzna-Samarasinha, supra note 76, at 11.Show More Notably, “disability justice values an intersectional analysis which requires us to consider the complexities of reproductive justice in the context of ableism.”83 83.Sins Invalid, Reproductive Justice is Disability Justice 1, https://www.sinsinvalid.‌org/s/Reproductive_Justice_is_Disability_Justice.pdf [https://perma.cc/6XUF-Z8JL] (last visited June 26, 2021).Show More For example, disabled people at the intersection of other marginalized identities, such as disabled people of color or LGBTQ+ disabled people, experience even greater reproductive oppression. Hence, “[p]eople who exist at the intersection of race and disability experience a multi-dimensional form of discrimination that is continually at risk of being flattened to a single dimension—either race or disability—due to the limitations of our collective understanding of intersectionality.”84 84.Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L.15, 20–21 (2018).Show More

III. Achieving Reproductive Justice: Four Guiding Principles

“Big problems require big solutions.” –Ruth Wilson Gilmore85 85.Ruth Wilson Gilmore, Foreword to Dan Berger, The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States viii (2014).Show More

The ongoing reproductive control of Britney Spears exposes the persistent subordination of people with disabilities. Moreover, it shines a light on the urgent need for a long-overdue conversation: How does the United States finally confront its deplorable history of weaponizing reproduction to subjugate disabled people? As this Essay demonstrates, the reproductive oppression experienced by people with disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Indeed, the problems of reproductive oppression are complex and require an interdisciplinary and interprofessional response that engages all fields of expertise, including law, medicine, public health, social work, and organizing, among others.

Below, I propose four guiding principles that I believe are necessary for a jurisprudential and legislative approach to achieving reproductive justice for people with disabilities. First, achieving reproductive justice for disabled people requires activists, scholars, legal professionals, and policymakers to actively engage people with disabilities. Second, legal and policy responses must be developed and implemented to ensure people with disabilities’ rights to autonomy and self-determination are protected. Third, sexual and reproductive health services and information must be accessible and available for people with disabilities. Finally, people with disabilities and their families must be guaranteed rights, justice, and wellness for themselves and their families.

These guiding principles, which are grounded in the extant legal and social science scholarship, are foundational elements of more significant legal and policy changes that will need to be fleshed out in considerable detail. They are outlined in broad strokes to help facilitate a discussion among activists, legal professionals, scholars, and policymakers about the basic contours of a paradigm shift that supports the coalescence of reproductive justice and disability justice. Disrupting the longstanding systems that oppress disabled people’s reproductive freedom will undeniably require a multifaceted approach. However, the need for such action could not be more timely or clear.

A. Center People with Disabilities as Leaders

Both reproductive justice and disability justice underscore the importance of centering people from marginalized communities as leaders in developing and implementing laws and policies that impact them. Indeed, a fundamental aspect of justice-based approaches is “listening to, engaging, and developing affected communities.”86 86.Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 338 (2015) (describing the importance of actively engaging socially marginalized communities to address inequities).Show More According to Sins Invalid, “By centering the leadership of those most impacted, we keep ourselves grounded in real-world problems and find creative strategies for resistance.”87 87.Sins Invalid,supra note 75, at 23.Show More Centering disabled people as leaders is also consistent with the disability community’s mantra, “nothing about us, without us,” which emphasizes that people with disabilities should be actively involved in legal and policy efforts that affect them.88 88.James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment 3 (1998).Show More Undeniably, when the voices of marginalized communities, including people with disabilities, are centered, solutions that benefit all members of society are conceived.

Cross-movement organizing is an important aspect of disrupting the reproductive oppression of disabled people. Historically, there have been significant tensions—particularly concerning issues of prenatal genetic testing for markers of disability and abortion on grounds of fetal disability—between the disability rights and reproductive rights movements.89 89.Bagenstos, supra note 43, at 280–81.Show More However, as the Center for Reproductive Rights notes, “[t]he cost of ignoring tensions between the disability rights and reproductive rights movements is high.”90 90.Center for Reproductive Rights, Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement 2 (2017), https://reproductiverights.org/wp-content/uploads/‌2020/12/Disability-Briefing-Paper-FINAL.pdf [https://perma.cc/52GS-T2NV].Show More Accordingly, the Center for Reproductive Rights intentionally developed partnerships with disability rights groups in an effort to begin bridging the gap between the movements.91 91.See id. at 1–2.Show More These discussions are an important reminder that the movements must work collectively to confront the subjugation of disabled people’s reproductive freedom, and that intentionally including people with disabilities is critical to developing legal and policy responses.

Accordingly, the first guiding principle to achieving reproductive justice for disabled people requires activists, scholars, legal professionals, and policymakers to actively engage people with disabilities, especially disabled people of color and LGBTQ+ disabled people, in leading legal and policy responses to address reproductive oppression. Such engagement will require an understanding of and respect for disabled people sharing their lived experiences and should elevate people with disabilities to leadership positions within movements. Because disabled people are the experts of their lives, centering them will lead to legal and policy responses that are disability-competent and address the actual reproductive needs of people with disabilities.

As previously explained, centering disabled people as leaders should also lead to cross-movement organizing and a broader effort to foster alliances and grow partnerships among the impacted communities. Cross-movement solidarity will produce progress toward specific policy goals and increase and enhance the dignity of people who can value one another’s shared humanity. Practically, this means that reproductive justice activists must make concerted efforts to include disabled people in their work. Similarly, disability rights and justice activists must recognize the diversity of the disability community and ensure that disabled people from marginalized communities hold leadership roles within the movements. To achieve reproductive justice, disabled people, especially disabled people of color and LGBTQ+ people, must be centered in all legal and policy efforts.

B. Protect Autonomy and Self-Determination

As Britney Spears’s heartbreaking ordeal exposes, people with disabilities are often denied bodily autonomy and self-determination, which in turn can result in reproductive oppression. Constitutional doctrine relating to abortion is rooted in a principle of autonomy.92 92.See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev.858, 876 (1993) (“The language of autonomy has provided the central rationale for protecting individual women’s control over the abortion decision.”).Show More Specifically, constitutional protections of abortion rights are rooted in the guarantee of “liberty” in the Due Process Clause of the Fourteenth Amendment.93 93.Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding [in Roe v. Wade] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages . . . that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”).Show More Indeed, the Supreme Court of the United States has held that the liberty protected by the U.S. Constitution involves freedom in making “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”94 94.Id. at 851.Show More Likewise, a cornerstone of the disability rights movement is autonomy.95 95.Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 795 (2007) (“[P]aternalism has historically been one of the most significant contributors to the disadvantage people with disabilities experience. Non-disabled parents, teachers, doctors, rehabilitation counselors, employers, and others have arrogated to themselves the prerogative to decide what is best for people with disabilities. In so doing, they have deprived people with disabilities of opportunities to work and participate in the community. They have denied people with disabilities the autonomy that consists in making one’s own choices. And they have denied people with disabilities the dignity of risk— the opportunity to develop their skills, test them in the world, and succeed or fail according to their talents.” (internal quotation marks omitted)).Show More Indeed, disabled people have continuously fought against paternalism and the notion that other people—namely, family members and professionals—are best equipped to make decisions for disabled people.96 96.Charlton, supra note 88, at 3 (“Control has universal appeal for [disability rights movement] activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death.”)Show More

Guardianship, also known as conservatorship in some states, is a draconian and antiquated system that has existed for centuries and robs disabled people of autonomy and self-determination.97 97.Candida Moss, The Romans, the Supreme Court, and Britney Spears—Conservatorship Abuse Has Been Happening for 2000 Years, The Daily Beast (June 26, 2021), https://www.thedailybeast.com/britney-spears-the-romans-and-the-supreme-court-conservatorship-abuse-has-been-happening-for-2000-years [https://perma.cc/7UJL-389G] (tracing the history of guardianship to Roman law).Show More According to disability justice advocates:

While the law varies from state to state, guardianship orders routinely authorize third parties to make decisions about the most personal and important decisions in an individual’s life—choices that impact the person’s own body and reproductive health; how and where they receive medical, psychiatric, and psychological treatment; how the money and resources they work to earn are spent; and even with whom they associate.98 98.Ctr. for Pub. Representation, Statement from Disability Justice and Supported Decision-Making Advocates: Britney Spears Spotlights the Need for Change Now (June 25, 2021), https://supporteddecisions.org/2021/06/25/britney-spears/ [https://perma.cc/SKK5-2HKH].Show More

Notably, like Britney Spears, many people under guardianship are forced to use contraception to prevent pregnancy.99 99.Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation(July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ [https://perma.cc/Q9WD-SSCC].Show More According to the National Council on Disability, an estimated 1.3 million people with disabilities currently have guardians.100 100.Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination 17 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_‌Report_Accessible.pdf [https://perma.cc/D8WG-5HBX].Show More

Although “[t]he guardianship system is designed as a last resort, applied only when an individual lacks capacity to make decisions,” there is “reason to believe that guardianships are imposed on many individuals without sufficient evidence of their decision-making incapacity and that, in some cases, disability alone appears to be used as a sufficient justification for the imposition of guardianship.”101 101.Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 Pa. St. L. Rev. 1111, 1117 (2013).Show More Consequently, the second guiding principle for achieving reproductive justice for disabled people requires the development and implementation of legal and policy responses that ensure people with disabilities’ autonomy and self-determination are protected. For example, disability rights advocates are pushing states to implement supported decision-making as a least restrictive alternative to guardianship.102 102.Ctr. for Pub. Representation, U.S. Supported Decision-Making Laws, https://supported‌decisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ [https://perma.cc/L58P-TTEY] (last visited Sept. 2, 2021) (listing states that have implemented supported decision-making).Show More Broadly, supported decision-making provides people with disabilities greater autonomy in their choices while receiving assistance from people whom they choose and trust.103 103.Ctr. for Pub. Representation, About Supported Decision-Making, https://supported‌decisions.org/about-supported-decision-making/ [https://perma.cc/KG45-F327] (last visited June 25, 2021).Show More It “does not require court involvement and can be coupled with other legal tools, such as powers of attorney and advance health care directives, that promote self-determination and autonomy.”104 104.Ctr. for Pub. Representation, supra note 98.Show More In addition to states enacting supported decision-making, efforts are needed to thwart the “school-to-guardianship pipeline,” whereby schools encourage parents to attain guardianship of their children once they reach the age of majority.105 105.Nat’l Council on Disability, Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities 29–36 (2019), https://ncd.gov/sites/default/files/NCD_Turning-Rights-into-Reality_508_0.‌pdf [https://perma.cc/H2PR-X7Y7].Show More In sum, to achieve reproductive justice, legal and policy efforts must protect the autonomy and self-determination of people with disabilities, including ensuring that they receive the least restrictive supports and abolishing guardianship.

C. Ensure Sexual and Reproductive Health Services and Information Are Accessible and Available to People with Disabilities

As described in Part II, disabled people experience a range of barriers to sexual and reproductive health services and information, often resulting in inadequate access and adverse outcomes.106 106.See supra Section II.B.Show More Although federal disability laws, including the Americans with Disabilities Act (“ADA”),107 107.Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.Show More Section 504 of the Rehabilitation Act of 1973 (“Section 504”),108 108.Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796.Show More and Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”)109 109.Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a); 45 C.F.R §§ 92.102–105.Show More mandate that healthcare providers be accessible and prohibit disability-based discrimination, these laws are often violated.110 110.Powell, supranote 73, at 625–27 (describing federal disability laws’ application to matters concerning reproductive justice).Show More Moreover, disabled people often do not have access to adequate sexual and reproductive health information, such as sexuality education.111 111.Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53, 57–58 (2016) (explaining the implications of disabled people not receiving sexuality education).Show More Without comprehensive information, people with disabilities are unable to make informed decisions about their reproductive wellbeing. Further, because disabled people are more likely to be poor and receive public benefits, policies such as the Hyde Amendment, which bars the use of federal Medicaid funds for abortion care,112 112.SeeHyde Amendment Codification Act, S. 142, 113th Cong. (2013) (originally passed in 1977);Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found.(Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/NT7W-QL6W].Show More often inhibit their access to comprehensive sexual and reproductive health services.113 113.Rocking the Cradle,supranote 53, at 178 (noting that “Medicaid and Medicare [are] the primary health insurers for people with disabilities”).Show More

As such, the third guiding principle for achieving reproductive justice for disabled people necessitates ensuring that sexual and reproductive health services and information are accessible and available. Greater compliance with and enforcement of existing legal protections are urgently needed to ensure reproductive justice for people with disabilities. To that end, the United States Departments of Justice (DOJ) and Health and Human Services’ Office for Civil Rights (OCR) should prioritize the reproductive rights of people with disabilities, such as by investigating alleged violations of disability-based discrimination by reproductive health providers and enforcing the law as necessary.

Disabled people also need access to comprehensive and accessible information about sexuality and reproduction. For example, existing research indicates that people with disabilities may be at increased risk of exposure to HIV/AIDS due in part to limited access to education and information about prevention.114 114.Nora Ellen Groce et al., HIV Issues and People with Disabilities: A Review and Agenda for Research, 77 Soc. Sci. & Med. 31–37 (2013) (analyzing research about the intersection of HIV/AIDS and people with disabilities and calling for greater attention to the topic).Show More For people with intellectual disabilities, not receiving sexual education has led to high rates of sexually transmitted infections and sexual assaults, along with limited ability to report abuses because of lack of knowledge.115 115.Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sexuality & Disability 113–16 (2011).Show More

Further, a health justice approach is needed, recognizing that the social determinants of health impact access to sexual and reproductive health services and information.116 116.See generallyBenfer, supra note 86 (explaining the social determinants of health and the health justice framework).Show More Developing and implementing laws and policies that are consistent with health justice will allow for addressing factors such as poverty and transportation and how they affect disabled people’s access to sexual and reproductive health services and information. Hence, by addressing the social determinants of health, people will have greater access to those services and information.

D. Guarantee Rights, Justice, and Wellness for People with Disabilities and Their Families

Finally, people with disabilities and their families encounter numerous laws and policies that threaten their rights, justice, and wellness. For example, consider a parent with a physical disability who is unemployed and receives monthly Supplemental Security Income (“SSI”) benefits of $794.117 117.Soc. Sec. Admin., SSI Federal Payment Amounts for 2021, https://www.ssa.gov/oact/‌cola/SSI.html [https://perma.cc/DW5R-6MY3] (last visited July 20, 2021).Show More She also receives Medicaid, which pays for in-home personal care assistants. Although she would like to work, at least part-time, draconian rules proscribe that she will lose her SSI benefits if she earns more than $1,310.118 118.Soc. Sec. Admin., Substantial Gainful Activity, https://www.ssa.‌gov/oact/cola/sga.html [https://perma.cc/9YWP-XS5G] (last visited September 2, 2021).Show More Since Medicaid eligibility in her state is tied to receipt of SSI benefits, she will also lose Medicaid and needed in-home supports. Thus, stringent federal and state rules force this mother to live in poverty.

Reproductive justice should not depend on where people live, how much they make, or who they are. And yet, as the above narrative illustrates, all too often these factors infringe on people with disabilities’ reproductive justice. For example, for people with disabilities, especially disabled parents, poverty is a persistent issue that directly affects access to housing, food, and other basic necessities needed for people’s wellbeing.119 119.Rocking the Cradle,supra note 53, at 202 (“[T]he most significant difference between parents with disabilities and parents without disabilities is economic . . . .”).Show More Although many people with disabilities receive government benefits, these benefit programs often keep people in poverty. Antiquated rules and restrictions force some people with disabilities to choose between creating families and receiving necessary income assistance.120 120.While marriage is certainly not required to form families, it should be available to people with disabilities the same as it is for nondisabled people. However, strict asset programs prevent disabled people from marrying. See Waterstone, supra note 27, at 549 n. 132.Show More Poverty is also a persistent issue because of high rates of unemployment among disabled people. U.S. Census Bureau data shows that compared to nondisabled people, people with disabilities have lower rates of employment, lower median annual earnings, and higher rates of poverty.121 121.U.S. Census Bureau, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status, https://data.census.gov/‌cedsci/table?t=Disability&tid=ACSST1Y2019.S1811&hidePreview=true&vintage=2018 [https://perma.cc/6JFJ-DATH] (last visited July 11, 2021).Show More

People with disabilities, especially disabled people of color and LGBTQ+ people, often additionally contend with discriminatory legal and social service systems that separate them from their families.122 122.See Section I.B supra (noting that disabled parents have disproportionate rates of child welfare system involvement and termination of parental rights).Show More For example, the child welfare system—more accurately known as the family policing system123 123.‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/9DMC-DQBL] (“Policing captures what this system does. It polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” (quoting Dorothy Roberts) (emphasis in original)).Show More—targets people of color and disabled parents using pathology, control, and punishment.124 124.See generallyRobyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism (forthcoming 2022) (on file with author) (arguing that child welfare system abolition is necessary to protect disabled parents and their children).Show More An estimated two-thirds of state child welfare system laws explicitly include parental disability, usually intellectual or psychiatric disabilities, as grounds for termination of parental rights.125 125.Rocking the Cradle,supra note 53, at 16.Show More Thus, in many states, disabled people are lawfully denied their right to raise children.

Accordingly, the fourth guiding principle recognizes that to achieve reproductive justice, people with disabilities and their families must be guaranteed rights, justice, and wellness for themselves and their families. Changing the income and asset rules that keep people with disabilities in poverty would enable them to have livable incomes and the families they desire. Employment opportunities similarly need to be expanded so that people with disabilities can work and earn livable wages. Further, parents with disabilities and their children must be able to live free from fear of unnecessary separation and have access to non-punitive supports and resources. Thus, the child welfare system, and other carceral systems, must be abolished to achieve true reproductive justice. Legal and policy solutions that reflect the fourth guiding principle will need to be comprehensive and transformative.

Conclusion

Britney Spears’s appalling experiences are a stark reminder that nearly 100 years after the infamous Buck v. Bell decision, reproductive freedom is still denied to far too many disabled people. Although forced sterilization of people with disabilities has waned over time, reproductive justice still has not been realized for all people with disabilities. Indeed, revelations about Britney Spears’s harrowing struggles show that the right to decide whether to have children is still not fully afforded to people with disabilities.

The reproductive oppression experienced by people with disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Accordingly, addressing the persistent reproductive oppression of people with disabilities will require us to transform our laws and policies radically. Informed by reproductive justice and disability justice frameworks, the four guiding principles set forth above provide a vision for transforming laws and policies to ensure reproductive justice for people with disabilities. This Essay seeks to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for such action could not be more timely or clear.

  1. * JD, PhD, Bruce R. Jacob Visiting Assistant Professor at Stetson University College of Law. Concepts from this Essay were presented during ReproAction’s webinar, “#FreeBritney? Respecting the Autonomy and Decision-Making of People with Disabilities,” on September 29, 2020. This Essay was supported by a generous research grant from the Stetson University College of Law. I extend my appreciation to Edson Abadia, Jr., for his critical research assistance. ↑

  2. Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized’, Variety (June 23, 2021, 3:59 PM), https://variety.com/2021/music/‌news/britney-spears-full-statement-conservatorship-1235003940/ [https://perma.cc/QJ6Y-9UBH] (transcript of Spears’s June 23, 2021, statement to Los Angeles Superior Court Judge, Brenda Penny). ↑

  3. Id. At the time of this writing, Britney Spears’s case is ongoing. On September 29, 2021, the court suspended Britney Spears’s father, James Spears, as his daughter’s conservator and temporarily replaced him with a new conservator. Joe Coscarelli, Julia Jacobs & Liz Day, Judge Frees Spears From Father’s Control (Oct. 2, 2021), https://www.nytimes.com/‌2021/09/29/arts/music/britney-spears-court-decision-conservatorship.html [https://perma.cc/9N3S-S8NA]. The court has scheduled a hearing for November 12, 2021, to determine whether the conservatorship should end. Id. ↑

  4. Aswad, supra note 1. ↑

  5. Id. ↑

  6.  Consistent with disability rights and disability justice movements, this Essay acknowledges the importance of language in shaping how we think about disability and how ableism can pervade language choices as well as reflect and perpetuate disability-based subordination. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya (Feb. 27, 2021), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/HS2F-LJ2C]. To that end, I use person-first and identity-first language interchangeably (e.g., “parents with disabilities” and “disabled parents”) in recognition of the disability community’s diverse language preferences. See generally Dana S. Dunn & Erin E. Andrews, Person-First and Identity-First Language: Developing Psychologists’ Cultural Competence Using Disability Language, 70 Am. Psych. 255 (2015) (exploring the evolving language preferences among people with disabilities). ↑

  7. See, e.g., @yooitsmo, Twitter (June 24, 2021, 11:58 AM), https://twitter.com/yooitsmo/‌status/1408092248265445387 [https://perma.cc/UX86-TLL3] (“I’m sorry but…Britney HAS to keep an [IUD] in under her conservatorship??? How is any of this legal/okay???”); Meghan McCain (@MeghanMcCain), Twitter (June 23, 2021, 9:14 PM), https://twitter.com/‌MeghanMcCain/‌status/1407869786156146689 [https://perma.cc/T7S7-3X6G] (“This goes beyond any normal courts, there should be human rights violations investigations. Britney Spears was held captive, out in the open and we gawked at her and didn’t listen. This is how we treat famous women. Thank God she didn’t kill herself. There is a rot in our culture”); Congresswoman Katie Porter (@katieporteroc), Twitter (June 24, 2021, 7:25 PM), https://twitter.com/katieporteroc/status/1408204566592561157 [https://perma.cc/‌AA53-C7WG] (“Every American—regardless of their gender identity or disability status—ought to be able to make decisions about their own bodies. #FreeBritney”). ↑

  8. See, e.g., Imani Barbarin (@Imani_Barbarin), Twitter (June 24, 2021, 10:54 AM), https://twitter.com/Imani_Barbarin/status/1408076140028305422 [https://perma.cc/3W8S-DPTB] (“I don’t like the gaslighting that goes on when disabled people tell y’all that what’s happening with #FreeBritney is not at all unique. You just have a hierarchy of disability and a point at which you think someone is “too disabled” to care about.”); Sarah Lerner (@SarahLerner), Twitter (June 23, 2021, 6:42 PM), https://twitter.com/SarahLerner/status/‌1407831499164962817 [https://perma.cc/A8BU-TS75] (“Britney Spears being held under a 13-year conservatorship and being forced to keep her IUD in despite the fact that she wants another child is where disability rights and reproductive rights intertwine.”); Dr. Sherri G. (@onlymeindc), Twitter (June 24, 2021, 9:27 PM), https://twitter.com/onlymeindc/‌status/1408235268545519617 [https://perma.cc/UV6J-LU5J] (“The Britney Spears situation is most definitely a disability rights issue. The medical and social models of disability are clashing right in front of your eyes. One model boils us down to impairment through oppressive paternalism forcing us in the sick role and the other doesn’t.”); Eric Michael Garcia (@EricMGarcia), Twitter (June 23, 2021, 5:55 PM), https://twitter.com/EricMGarcia/‌status/1407819545394434051 [https://perma.cc/8BKP-PMAL] (“As always, it’s important to remember that #FreeBritney is a disability rights issue. If the state can do this to one of the most influential pop stars in my lifetime, think about what it can do to others.”). ↑

  9. See infra Part I (contextualizing the United States’ history of the reproductive oppression of people with disabilities and the ways in which it persists today). ↑

  10. Id. ↑

  11. Zoe Brennan-Krohn & Rebecca McCray, Britney Spears’ Reproductive Freedom Is a Disability Rights Issue, ACLU (June 25, 2021), https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/ [https://perma.cc/KZ9E-75WS] (“Spears’ experience is part of a long history of people with disabilities—most often people of color—being robbed of the right to control their reproductive destinies.”); Nat’l LGBTQ Task Force, Queering Reproductive Justice: A Toolkit 5–7 (Zsea Beaumonis, Candace Bond-Theriault, Stacey Long Simmons & Sabrina Rewald eds., 2017), https://www.thetaskforce.org/wp-content/uploads/2017/03/Queering-Reproductive-Justice-A-Toolkit-FINAL.pdf [https://perma.cc/5L88-TMXB]. ↑

  12. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8

     

    Berkeley Women’s L.J. 122, 123–24 (1993) (“Only a few of the dozens of cases regarding involuntary sterilizations involve the sterilization of males. Therefore, sterilization practice is interwoven with the issue of control of female reproductive rights and, to some extent, of female sexual expression.”). But see In re Guardianship of Kennedy, 845 N.W.2d 707, 708–09 (Iowa 2014) (evaluating an appeal brought by a 21-year-old man with intellectual disabilities challenging the legality of a vasectomy his guardian had arranged for him without obtaining a court order); Renu Barton-Hanson, Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway?, 15 Med. L. Int’l 49, 57–58 (2015) (examining recent cases concerning sterilization of men with intellectual disabilities and noting the frequent justification as purportedly promoting sexual freedom). ↑

  13. See Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. Louisville J. Fam. L. 947, 948, 953–54 (1993) (“The purpose of these laws was to protect and streamline society by preventing reproduction by those deemed socially or mentally inferior.”). ↑

  14. 274 U.S. 200 (1927). ↑

  15. Id. at 205; see also Stephen Jay Gould, Carrie Buck’s Daughter, 2 Const. Comment.

     

    331, 336 (1985) (asserting that Buck was not “feebleminded” but rather institutionalized to hide her rape). ↑

  16. Buck, 274 U.S. at 205; Gould, supra note 14, at 334. ↑

  17. Gould, supra note 14, at 333, 336; Buck, 274 U.S. at 205. ↑

  18. Buck, 274 U.S. at 205–06; Gould, supra note 14, at 331. ↑

  19. Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 104–05 (2008). ↑

  20. Buck, 274 U.S. at 206–08. ↑

  21. Id. at 207. ↑

  22. Fresh Air, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 17, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/5KYD-Z79X]. ↑

  23. Fifteen years after Buck v. Bell was decided, the Supreme Court struck down an Oklahoma law requiring that people with two or more convictions for felonious offenses be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 536–37, 543 (1942). Although both Skinner and Buck concern involuntary sterilization statutes, Skinner’s analysis took a narrower focus, relating only to the punitive sterilization of criminals, thereby avoiding addressing the forced sterilization of people with disabilities. Id. at 542–43. ↑

  24. Brooke Pietrzak, Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment, 17 Dev. Mental Health L. 1, 34–35 (1997). ↑

  25. Id. at 35. ↑

  26. Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981). ↑

  27. President’s Comm. on Mental Retardation, OHD 74-21002, Silent Minority 33 (1974). ↑

  28. Pietrzak, supra note 23, at 1–2. Although no known studies have systematically examined marriage laws as they apply to people with disabilities, scholars contend that these statutes continue to exist in some states. Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 548–49 (2014). ↑

  29. See Vanessa Volz, Note, A Matter of Choice: Women with Disabilities, Sterilization, and Reproductive Autonomy in the Twenty-First Century, 27 Women’s Rts. L. Rep. 203, 207–08 (2006). ↑

  30. Mary Moe is a pseudonym; Massachusetts General Law requires that informed consent proceedings for an abortion be kept confidential. Mass. Gen. Laws ch. 112, § 12R (2020). ↑

  31. In re Guardianship of Mary Moe, 960 N.E.2d 350, 352 (Mass. App. Ct. 2012). ↑

  32. Id. at 353 (quoting the family court’s decision). ↑

  33. Id. (quoting the family court’s decision). ↑

  34. Id. at 355. ↑

  35. Daniel F. Gunther & Douglas S. Diekema, Attenuating Growth in Children with Profound Developmental Disability: A New Approach to an Old Dilemma, 160 Archives Pediatrics & Adolescent Med. 1013, 1014 (2006); Marcia H. Rioux & Lora Patton, Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence, in Critical Perspectives on Human Rights and Disability Law 243, 243–44 (Marcia H. Rioux, Lee Ann Basser & Melinda Jones eds., 2011). ↑

  36. Gunther & Diekema, supra note 34; Rioux & Patton, supra note 34, at 244. ↑

  37. The “Ashley Treatment”, Towards a Better Quality of Life for “Pillow Angels”, at 3, 12 (Mar. 17, 2012), http://pillowangel.org/Ashley%20Treatment.pdf [https://perma.cc/8E3Z-VCEQ] (the document is authored by: “Ashley’s Mom and Dad”). ↑

  38. Id. at 10. ↑

  39. Gunther & Diekema, supra note 34, at 1015. ↑

  40. Rioux & Patton, supra note 34, at 244–45. ↑

  41. Id. at 244. ↑

  42. Amy Burkholder, Report: ‘Pillow Angel’ Surgery Broke Law, CNN (May 8, 2007), http://www.cnn.com/2007/HEALTH/05/08/ashley.ruling/index.html [https://perma.cc/Z8RD-LF78] (“Children’s Hospital, in acknowledging its error, said that beyond implementing changes to ensure that sterilization of disabled children doesn’t happen again without a court order, it will seek court approval for other procedures involved in the controversial growth attenuation therapy.”). ↑

  43. Ed Pilkington & Karen McVeigh, ‘Ashley Treatment’ on the Rise Amid Concerns from Disability Rights Groups, The Guardian (Mar. 15, 2012) http://www.guardian.co.uk/society/‌2012/mar/15/ashley-treatment-rise-amid-concerns/ [https://perma.cc/B5WF-ENKY]. ↑

  44. Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 289 (2020). ↑

  45. See Justine P. Wu et al., Female Sterilization Is More Common Among Women with Physical and/or Sensory Disabilities than Women Without Disabilities in the United States, 10 Disability & Health J. 400, 403 (2017); William Mosher et al., Contraceptive Use by Disability Status: New National Estimates from the National Survey of Family Growth, 97 Contraception 552, 555 (2018); Henan Li et al., Female Sterilization and Cognitive Disability in the United States, 2011–2015, 132 Obstetrics & Gynecology 559, 561 (2018). ↑

  46. Beverly Horsburgh, Schrödinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 Cardozo L. Rev. 531, 572 (1996). ↑

  47. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 Berkeley Women’s L.J. 122, 126 (1993). ↑

  48. Id. ↑

  49. Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14 Cardozo J.L. & Gender 319, 350 (2008). ↑

  50. Robyn M. Powell, Susan L. Parish, Monika Mitra, & Eliana Rosenthal, Role of Family Caregivers Regarding Sexual and Reproductive Health for Women and Girls with Intellectual Disability: A Scoping Review, 64 J. Intell. Disability Rsch. 131, 132 (2020) (citing studies). ↑

  51. Id. at 151 (citing studies). ↑

  52. Monika Mitra, Linda M. Long-Bellil, Suzanne C. Smeltzer & Lisa I. Iezzoni, A Perinatal Health Framework for Women with Physical Disabilities, 8 Disability Health J.

     

    499, 499 (2015) (citing studies)

    ;

    Lesley A. Tarasoff et al., Health of Newborns and Infants Born to Women with Disabilities: A Meta-Analysis, 146 Pediatrics, e20201635, at 2 (2020) (citing studies); Ilhom Akobirshoev, Susan L. Parish, Monika Mitra & Eliana Rosenthal, Birth Outcomes Among US Women with Intellectual and Developmental Disabilities, 10 Disability & Health J.

    406, 409

    tbl. 2

    (2017) (

    comparing maternal and infant outcomes of women with and without intellectual disabilities)

    .

    ↑

  53. Robyn M. Powell, Erin E. Andrews & Kara B. Ayers, Becoming a Disabled Parent: Eliminating Access Barriers to Health Care Before, During, and After Pregnancy, 96 Tul. L. Rev. (forthcoming 2021) (manuscript at 2), https://papers.ssrn.com/sol3/papers.cfm?abstract‌_id=3808017 [https://perma.cc/3JD2-WD5G] (interviewing disabled parents about their experiences accessing health care services). ↑

  54. See generally Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 15 (2012) [hereinafter “Rocking the Cradle”], https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/UB7C-XMMG] (“The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities—including intellectual and developmental, psychiatric, sensory, and physical disabilities—experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.”). ↑

  55. Id. at 16. ↑

  56. Id. at 265–300 (finding that over two-thirds of state dependency laws list parental disability as grounds for termination of parental rights). ↑

  57. Robyn M. Powell, Family Law, Parents with Disabilities, and the Americans with Disabilities Act, 57 Fam. Ct. Rev. 37, 38 (2019) (“Indeed, parents with disabilities contend with substantial and persistent bias within the family law system, often threatening their custody and visitation rights.”). ↑

  58. Laura Rizzo, Inside Britney Spears’ Custody Battle with Kevin Federline for Kids Sean Preston and Jayden, Life & Style Mag. (June 24, 2021), https://www.lifeandstylemag.com/‌posts/does-britney-spears-have-custody-of-kids-preston-and-jayden/ [https://perma.cc/EQY3-9KZ3] (explaining that Britney Spears had 30% custody at the time and was reportedly seeking 50%). ↑

  59. Rocking the Cradle, supra note 53, at 153–66 (describing the ways prospective parents with disabilities experience discrimination within the foster care and adoption system). ↑

  60. Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 328 (2013). ↑

  61. Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social Change 4, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 [https://perma.cc/5SSG-QVSD] (last visited Oct. 1, 2021) [hereinafter “Reproductive Justice Briefing Book

    ”]

    . ↑

  62. Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 73 (2017). ↑

  63. Id. at 74. ↑

  64.  Joan C. Chrisler, Introduction: A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Women & L. 1, 4 (2013). ↑

  65. Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 75 (2011). ↑

  66. Reproductive Justice Briefing Book

    ,

    supra note 60, at 4. (“Moving beyond a demand for privacy and respect for individual decision making to include the social supports necessary for our individual decisions to be optimally realized, this framework also includes obligations from our government for protecting women’s human rights. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.”). ↑

  67. Id. (“Instead of focusing on the means—a divisive debate on abortion and birth control that neglects the real-life experiences of women and girls— the Reproductive Justice analysis focuses on the ends: better lives for women, healthier families, and sustainable communities.”). ↑

  68. Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall 2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/C37U-GS88]; see also Luna & Luker, supra note 59, at 343 (“[R]eproductive justice is equally about the right to not have children, the right to have children, the right to parent with dignity, and the means to achieve these rights.”). ↑

  69. Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325, 343 (2019). ↑

  70. Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2240 (2018). ↑

  71. Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 210 (2018). ↑

  72. Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-Choice and Disability Rights Communities Together, 84 Contraception 541, 542 (2011). ↑

  73. London, supra note 64, at 71–72. ↑

  74. See, e.g., Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender & Soc. Just. 607, 628–31 (2021) (examining the history of eugenics in the United States and calling for a justice-based approach to address the role of ableism in eugenics); Bagenstos, supra note 43, at 279–86; Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev. 587, 627–30 (2017) (describing ways in which reproductive justice should be used to advocate for programs to support people with disabilities as a mechanism for reducing disability-based abortions); Mohapatra, supra note 68, at 325–27 (2019) (using the Zika virus to highlight the tensions between reproductive rights and disability rights); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 316–18 (2013) (proposing how organizing based on an intersectional analysis can help facilitate alliances between reproductive justice, racial justice, women’s rights, and disability rights activists to develop strategies to address reproductive genetic technologies); Roberts, supra note 67 (describing the failures of the reproductive rights movement to respond to the needs of marginalized communities, including people with disabilities, and calling for a reproductive justice framework instead). ↑

  75. Bagenstos, supra note 43, at 285 (quoting Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 6 (1997)). ↑

  76. Sins Invalid, Skin, Tooth, and Bone—The Basis of Movement is Our People: A Disability Justice Primer 59 (2d ed. 2019) (capital letters omitted). ↑

  77. Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice 11 (2018). ↑

  78. Sins Invalid, supra note 75, at 22–26 (capital letters omitted). ↑

  79. Id. at 15, 47. ↑

  80. Talila “TL” Lewis, Disability Justice Is an Essential Part of Abolishing Police and Prisons, Level (Oct. 7, 2020), https://level.medium.com/disability-justice-is-an-essential-part-of-abolishing-police-and-prisons-2b4a019b5730 [https://perma.cc/J5QL-9UNR]. ↑

  81. Sins Invalid, supra note 75, at 15. ↑

  82. In 1989, Kimberlé Crenshaw coined the term “intersectionality” to help explain the oppression of African-American women. See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U. Chi. Legal F. 139, 140 (1989). Since then, intersectionality has been used to study how people who are members of multiple socially marginalized communities experience discrimination, including people with disabilities. See, e.g., Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209, 211–22 (2010). ↑

  83. Piepzna-Samarasinha, supra note 76, at 11. ↑

  84. Sins Invalid, Reproductive Justice is Disability Justice

    1,

    https://www.sinsinvalid.‌org/s/Reproductive_Justice_is_Disability_Justice.pdf [https://perma.cc/6XUF-Z8JL] (last visited June 26, 2021). ↑

  85. Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L.

     

    15, 20–21 (2018). ↑

  86. Ruth Wilson Gilmore, Foreword to Dan Berger, The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States viii (2014). ↑

  87. Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 338 (2015) (describing the importance of actively engaging socially marginalized communities to address inequities). ↑

  88. Sins Invalid,

     

    supra note 75, at 23. ↑

  89. James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment 3 (1998). ↑

  90. Bagenstos, supra note 43, at 280–81. ↑

  91. Center for Reproductive Rights, Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement 2 (2017), https://reproductiverights.org/wp-content/uploads/‌2020/12/Disability-Briefing-Paper-FINAL.pdf [https://perma.cc/52GS-T2NV]. ↑

  92. See id. at 1–2. ↑

  93. See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev.

     

    858, 876 (1993) (“The language of autonomy has provided the central rationale for protecting individual women’s control over the abortion decision.”). ↑

  94. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding [in Roe v. Wade] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages . . . that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”). ↑

  95. Id. at 851. ↑

  96. Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 795 (2007) (“[P]aternalism has historically been one of the most significant contributors to the disadvantage people with disabilities experience. Non-disabled parents, teachers, doctors, rehabilitation counselors, employers, and others have arrogated to themselves the prerogative to decide what is best for people with disabilities. In so doing, they have deprived people with disabilities of opportunities to work and participate in the community. They have denied people with disabilities the autonomy that consists in making one’s own choices. And they have denied people with disabilities the dignity of risk— the opportunity to develop their skills, test them in the world, and succeed or fail according to their talents.” (internal quotation marks omitted)). ↑

  97. Charlton

    ,

    supra note 88, at 3 (“Control has universal appeal for [disability rights movement] activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death.”) ↑

  98. Candida Moss, The Romans, the Supreme Court, and Britney Spears—Conservatorship Abuse Has Been Happening for 2000 Years, The Daily Beast (June 26, 2021), https://www.thedailybeast.com/britney-spears-the-romans-and-the-supreme-court-conservatorship-abuse-has-been-happening-for-2000-years [https://perma.cc/7UJL-389G] (tracing the history of guardianship to Roman law). ↑

  99. Ctr. for Pub. Representation, Statement from Disability Justice and Supported Decision-Making Advocates: Britney Spears Spotlights the Need for Change Now (June 25, 2021), https://supporteddecisions.org/2021/06/25/britney-spears/ [https://perma.cc/SKK5-2HKH]. ↑

  100. Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation

     

    (July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ [https://perma.cc/Q9WD-SSCC]. ↑

  101. Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination 17 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_‌Report_Accessible.pdf [https://perma.cc/D8WG-5HBX]. ↑

  102. Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 Pa. St. L. Rev. 1111, 1117 (2013). ↑

  103. Ctr. for Pub. Representation, U.S. Supported Decision-Making Laws, https://supported‌decisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ [https://perma.cc/L58P-TTEY] (last visited Sept. 2, 2021) (listing states that have implemented supported decision-making). ↑

  104. Ctr. for Pub. Representation, About Supported Decision-Making, https://supported‌decisions.org/about-supported-decision-making/ [https://perma.cc/KG45-F327] (last visited June 25, 2021). ↑

  105. Ctr. for Pub. Representation, supra note 98. ↑

  106. Nat’l Council on Disability, Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities

    29–36 (2019),

    https://ncd.gov/sites/default/files/NCD_Turning-Rights-into-Reality_508_0.‌pdf [https://perma.cc/H2PR-X7Y7].

     

    ↑

  107. See supra Section II.B. ↑

  108. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213. ↑

  109. Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796. ↑

  110. Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a); 45 C.F.R §§ 92.102–105. ↑

  111. Powell, supra note 73, at 625–27 (describing federal disability laws’ application to matters concerning reproductive justice). ↑

  112. Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53, 57–58 (2016) (explaining the implications of disabled people not receiving sexuality education). ↑

  113. See Hyde Amendment Codification Act, S. 142, 113th Cong. (2013) (originally passed in 1977); Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found. (Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/NT7W-QL6W]. ↑

  114. Rocking the Cradle, supra note 53, at 178 (noting that “Medicaid and Medicare [are] the primary health insurers for people with disabilities”). ↑

  115. Nora Ellen Groce et al., HIV Issues and People with Disabilities: A Review and Agenda for Research, 77 Soc. Sci. & Med. 31–37 (2013) (analyzing research about the intersection of HIV/AIDS and people with disabilities and calling for greater attention to the topic). ↑

  116. Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sexuality & Disability 113–16 (2011). ↑

  117. See generally Benfer, supra note 86 (explaining the social determinants of health and the health justice framework). ↑

  118. Soc. Sec. Admin., SSI Federal Payment Amounts for 2021, https://www.ssa.gov/oact/‌cola/SSI.html [https://perma.cc/DW5R-6MY3] (last visited July 20, 2021). ↑

  119. Soc. Sec. Admin., Substantial Gainful Activity, https://www.ssa.‌gov/oact/cola/sga.html [https://perma.cc/9YWP-XS5G] (last visited September 2, 2021). ↑

  120. Rocking the Cradle, supra note 53, at 202 (“[T]he most significant difference between parents with disabilities and parents without disabilities is economic . . . .”). ↑

  121. While marriage is certainly not required to form families, it should be available to people with disabilities the same as it is for nondisabled people. However, strict asset programs prevent disabled people from marrying. See Waterstone, supra note 27, at 549 n. 132. ↑

  122. U.S. Census Bureau, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status, https://data.census.gov/‌cedsci/table?t=Disability&tid=ACSST1Y2019.S1811&hidePreview=true&vintage=2018 [https://perma.cc/6JFJ-DATH] (last visited July 11, 2021). ↑

  123. See Section I.B supra (noting that disabled parents have disproportionate rates of child welfare system involvement and termination of parental rights). ↑

  124. ‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/9DMC-DQBL] (“Policing captures what this system does. It polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” (quoting Dorothy Roberts) (emphasis in original)). ↑

  125. See generally Robyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism (forthcoming 2022) (on file with author) (arguing that child welfare system abolition is necessary to protect disabled parents and their children). ↑

  126. Rocking the Cradle, supra note 53, at 16. ↑

Interpreting Injunctions

Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt.

Despite the importance of injunctions, courts have applied an astonishingly wide range of contradictory approaches to interpreting them. They have likewise disagreed over whether appellate courts should defer to trial courts’ interpretations or instead review those interpretations de novo. Virtually no scholarship has been written on these topics.

This Article proposes that courts apply a modified textualist approach to injunctions. Under this scheme, courts would generally interpret injunctions according to the ordinary meaning of their language. When a provision in an injunction quotes or incorporates by reference an extrinsic legal authority, such as a statute or contract, however, courts would interpret that provision according to the methodology they would ordinarily apply to that extrinsic authority. This proposed approach ensures that injunctions provide regulated parties with adequate notice of the conduct proscribed, curtails judicial abuses of power, and aligns tightly with the procedural rules that govern injunctions in both federal and state courts.

This Article further proposes that appellate courts review trial courts’ interpretations of injunctions de novo. Independent appellate review naturally aligns with the textualist goal of implementing the best reading of an injunction, promotes principles of notice, and prevents government overreach.

Introduction

Injunctions are one of the most powerful remedies in the law.1 1.F.W. Maitland, Equity 254 (A.H. Chaytor & W.J. Whittaker eds., 1929).Show More They dictate behavior; parties who disobey injunctions face the prospect of contempt.2 2.Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826–27 (1994) (discussing the distinction between criminal and civil contempt); see alsoJoseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780, 780–81 (1943) (explaining that the “distinction” between civil and criminal contempt “is made decisive in such vital matters as parties, procedure, evidence, judgments, and review”).Show More Over the past century, injunctions have grown only more powerful, evolving into new forms such as structural injunctions3 3.SeeOwen M. Fiss, The Civil Rights Injunction 4–5 (1978).Show More and nationwide injunctions.4 4.SeeMichael T. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (explaining how nationwide defendant-oriented injunctions are a relatively recent phenomenon); see alsoSamuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 440 (2017) (tracing the rise of nationwide injunctions in the 1960s).Show More For these reasons, ascertaining the precise meaning of an injunction is critically important. Parties need to know what conduct an injunction requires or prohibits, and courts must be able to determine whether an injunction has been violated.

There is significant inconsistency, however, in how courts interpret injunctions. Courts at every level have employed a wide range of methods, including textualism, purposivism, intentionalism, and pragmatism. These different theories can easily lead to inconsistent interpretations of identical injunctions. The lack of a uniform approach to interpreting injunctions has also contributed to disagreement among appellate courts as to whether to defer to trial courts’ interpretations of such orders. Some appellate courts review trial courts’ interpretations of injunctions de novo, while others apply more deferential standards of review.5 5.Compare Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”), with In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that a court should give “great deference” to a judge’s interpretation of an injunction that he entered).Show More Deference makes more sense under some interpretive regimes than others.

One reason for this disarray is that theories of interpretation for injunctions are surprisingly underdeveloped. In contrast to the extensive bodies of work that discuss various approaches to interpreting the Constitution,6 6.See, e.g., Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning (1999); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).Show More statutes,7 7.See, e.g., Antonin Scalia, A Matter of Interpretation (2d ed. 2018); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016); Robert A. Katzmann, Judging Statutes (2014).Show More regulations,8 8.See, e.g., Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019); Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).Show More contracts,9 9.See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753 (2017); Richard A. Posner, The Law and Economics of Contract Interpretation, 83 Tex. L. Rev. 1581 (2005).Show More and wills,10 10.See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 534 (2005); Joseph Warren, Interpretation of Wills—Recent Developments, 49 Harv. L. Rev. 689 (1936).Show More virtually nothing has been written about the proper method for interpreting injunctions.11 11.No article specifically focuses on the unique interpretive concerns that injunctions raise. Professor Timothy Jost analyzed some of those issues in his work on modifying injunctions. SeeTimothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101, 1104–05 (1986). Other pieces have briefly touched on the topic as it arises in particular contexts, such as abstention, see Matthew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1137–38 (1998), and anti-gang injunctions, see Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 280–81 (2010).Show More Injunctions present several considerations that do not arise with regard to other legal instruments. For example, unlike statutes that typically apply to groups of people or entities, or even the general public, injunctions operate as targeted laws, imposing coercive legal obligations on particular named parties and their associates. Moreover, in contrast to virtually every other type of legal document, an injunction is typically interpreted by the same person—the trial judge—who entered the injunction in the first place.12 12.See, e.g., Steven Seidenberg, Fast-Forward: Federal Circuit Makes It Easier to Enforce Injunctions in Patent Cases, 17 ABA J. 16, 16 (Aug. 2011) (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”).Show More

At first glance, these considerations do not uniformly point toward a single theory of interpretation. For example, on the one hand, one might support a purposivist approach to interpretation because injunctions are typically both drafted and interpreted by the same court. An injunction’s author is in the best position to know the goals she was trying to accomplish and the most effective ways to promote them. On the other hand, because injunctions are targeted at particular individuals, a textualist approach would limit abusive enforcement by constraining the court’s ability to impose sanctions.

This Article recommends two main principles to guide the interpretation of injunctions. First, it proposes that courts adopt a modified textualist approach to interpreting injunctions. Under this proposal, a court would construe most provisions within an injunction according to the ordinary meaning of their language.13 13.For seminal discussions of textualism in statutory interpretation, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) [hereinafter Manning, Equity], and John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Textualism].Show More A textualist approach ensures adequate notice to individuals subject to the injunction; reduces opportunities for judicial abuse of the contempt power; and is most consistent with both Federal Rule of Civil Procedure 65(d), which requires an injunction to “state its terms specifically,”14 14.Fed. R. Civ. P. 65(d)(1)(B).Show More as well as its state analogues. Although a textualist approach presents the risk that individuals might try to circumvent injunctions by skirting the bounds of the prohibited conduct, courts can address this problem by modifying injunctions when necessary to prohibit such actions. This proposal reduces the risk of arbitrary or vindictive enforcement while still providing courts with flexibility to tailor injunctions over time to address unforeseen problems.15 15.In making this textualist proposal, we do not seek to engage with objections to the entire endeavor of textualism, such as whether the ordinary meaning of language can be derived without considering purpose driving that language. See, e.g., Richard A. Posner, The Problems of Jurisprudence 22–69 (1990); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 279 (2019); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 340–45 (1990). Instead, we rely on the work of the many others who have established that it is generally possible to determine the “ordinary meaning” of language independent of the lawmaker’s intent or purpose. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79 (2006) (arguing that ordinary meaning can be derived by reading text through the lens of a “community’s shared conventions”); Jeremy Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 329, 339 (Andrei Marmor ed., 1995) (arguing that shared conventions inform the meaning of language).Show More

We call the proposal “modified” textualism because we recognize an exception under which courts should depart from a pure textualist approach. Injunctions often draw on other legal authorities, such as statutes or contracts, that courts may interpret using approaches other than textualism. This Article proposes that a court should construe provisions within an injunction that quote or incorporate by reference an extrinsic legal authority according to the interpretive theory it would ordinarily apply to that type of authority. In contrast, when a provision restates or paraphrases an extrinsic legal authority in the issuing court’s own language—and especially when the provision imposes prophylactic protections that go beyond the requirements imposed by that extrinsic authority—the court should apply a textualist interpretation. Although this approach loses some of the benefits of notice and constraint provided by textualism, it maintains consistency and coherence in the interpretation of those other legal authorities.16 16.In other contexts, courts will sometimes apply special treatment to a legal provision that quotes an extrinsic legal authority. For example, courts generally apply Auer deference to agencies’ interpretations of their own regulations, except for regulations that merely reiterate statutory provisions. SeeGonzales v. Oregon, 546 U.S. 243, 256–57 (2006) (stating that deference under Auer v. Robbins, 519 U.S. 452 (1997), does not extend to agency rules that merely quote statutes).Show More

Furthermore, although courts should apply a modified textualist approach in determining what an injunction means, non-textualist considerations should still play an important role in determining the proper remedy for violations. Not all violations of injunctions require contempt. A court has broad discretion to decline to hold a violator in contempt, for example, where that person’s conduct was only a technical violation of the injunction or did not undermine the injunction’s purpose. A court may likewise refuse to impose contempt sanctions when they would be against the public interest. Permitting courts to consider purposivist factors at the remedy phase would preserve a textualist approach to interpreting the terms of the injunction itself while capturing some of the benefits of non-textualist methods of interpretation.

Second, this Article argues that appellate courts should not defer to trial courts’ interpretations of injunctions. Plenary review naturally aligns with the textualist premise that an injunction’s text has a single, best legal meaning. De novo review also tends to ensure notice to the regulated parties by limiting the ability of an injunction’s author to enforce her unexpressed intentions or underlying purposes. And it prevents judicial abuses more effectively than deferential review by creating a greater degree of oversight.

Moreover, the standard justifications for appellate deference do not warrant a more limited standard of review for trial judges’ interpretations of injunctions.17 17.See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1078 (2008) (identifying the two broad categories of justifications for deference: legal authority and epistemic authority).Show More Legislatures have not passed sweeping laws that either grant trial courts unique judicial authority over the interpretation of injunctions or require appellate courts to defer to them. Furthermore, trial courts do not have special expertise in determining the ordinary meaning of language; an appellate court is just as capable as a trial court of resolving such issues. Indeed, the characteristics that would make a trial judge an expert on an injunction’s meaning—being the judge who presided over the proceedings that led to the injunction and originally entered it—are precisely the same factors that create the greatest risk of abuse and accordingly counsel against deference.

Part I of this Article begins by explaining the fundamentals of injunctions, describing how they are entered and enforced. It then examines the wide range of interpretive methods courts have used to interpret them.

Part II begins building the case for a modified textualist approach to interpreting injunctions. It explains that textualism better promotes the values of providing notice and constraining government action than other methods of interpretation. It goes on to show that textualism also aligns well with the Federal Rules of Civil Procedure and analogous state provisions that require courts to clearly specify the terms of injunctions. This Part then addresses three major objections to a textualist approach. One is the practical argument that textualism makes it easier for parties to circumvent injunctions. Another is the prudential objection that a textualist approach may lead judges to enter unnecessarily broad injunctions to avoid such circumvention. Finally, this Part considers the philosophical argument that textualism is inapt because the “law” created by the injunction is really the intent of the drafter, and the terms of the injunction are merely evidence of that intent.

Part III more fully explores the contours of our proposal. It begins by suggesting that, although courts generally should interpret injunctions based on textualist principles, they should construe provisions in an injunction that quote or incorporate extrinsic legal authorities according to the interpretive methodologies the court would apply to those authorities in other contexts. This Part goes on to show why this modified textualist approach is appropriate not only for permanent injunctions, but for all other types of injunctions—including temporary restraining orders, preliminary injunctions, and consent decrees—as well. Finally, this Part recognizes that, although courts should adopt modified textualism to interpret injunctions, they still may consider non-textual factors in exercising their discretion as to whether to hold violators in contempt. This approach provides clarity about the meaning of an injunction, while mitigating some of the potential harshness of textualism by permitting courts to opt against punishing all violations of the text.

Part IV turns from the question of how to interpret injunctions to the issue of who should have power to ultimately determine their meaning. Building on the arguments developed in earlier Parts, it argues that appellate courts should determine the meaning of injunctions de novo, rather than mechanically adopting or deferentially reviewing trial courts’ interpretations.

  1. * Judge John J. Parker Distinguished Professor of Law and Associate Dean, University of North Carolina School of Law. ↑
  2. ** Associate Professor, Florida State University (FSU) College of Law. The authors are grateful for helpful feedback and suggestions from Sam Bray, Richard Fallon, Carissa Hessick, Doug Laycock, Leigh Osofksy, and Caprice Roberts, as well as the participants at the Notre Dame Law School Remedies Roundtable and 2018 Southeastern Association of Law Schools Remedies Discussion Group. ↑
  3. F.W. Maitland, Equity 254 (A.H. Chaytor & W.J. Whittaker eds., 1929). ↑
  4. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826–27 (1994) (discussing the distinction between criminal and civil contempt); see also Joseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780, 780–81 (1943) (explaining that the “distinction” between civil and criminal contempt “is made decisive in such vital matters as parties, procedure, evidence, judgments, and review”). ↑
  5. See Owen M. Fiss, The Civil Rights Injunction 4–5 (1978). ↑
  6. See Michael T. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (explaining how nationwide defendant-oriented injunctions are a relatively recent phenomenon); see also Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 440 (2017) (tracing the rise of nationwide injunctions in the 1960s). ↑
  7. Compare Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”), with In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that a court should give “great deference” to a judge’s interpretation of an injunction that he entered). ↑
  8. See, e.g., Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning (1999); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990). ↑
  9. See, e.g., Antonin Scalia, A Matter of Interpretation (2d ed. 2018); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016); Robert A. Katzmann, Judging Statutes (2014). ↑
  10. See, e.g., Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019); Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012). ↑
  11. See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753 (2017); Richard A. Posner, The Law and Economics of Contract Interpretation, 83 Tex. L. Rev. 1581 (2005). ↑
  12. See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 534 (2005); Joseph Warren, Interpretation of Wills—Recent Developments, 49 Harv. L. Rev. 689 (1936). ↑
  13. No article specifically focuses on the unique interpretive concerns that injunctions raise. Professor Timothy Jost analyzed some of those issues in his work on modifying injunctions. See Timothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101, 1104–05 (1986). Other pieces have briefly touched on the topic as it arises in particular contexts, such as abstention, see Matthew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1137–38 (1998), and anti-gang injunctions, see Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 280–81 (2010). ↑
  14. See, e.g., Steven Seidenberg, Fast-Forward: Federal Circuit Makes It Easier to Enforce Injunctions in Patent Cases, 17 ABA J. 16, 16 (Aug. 2011) (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”). ↑
  15. For seminal discussions of textualism in statutory interpretation, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) [hereinafter Manning, Equity], and John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Textualism]. ↑
  16. Fed. R. Civ. P. 65(d)(1)(B). ↑
  17. In making this textualist proposal, we do not seek to engage with objections to the entire endeavor of textualism, such as whether the ordinary meaning of language can be derived without considering purpose driving that language. See, e.g., Richard A. Posner, The Problems of Jurisprudence 22–69 (1990); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 279 (2019); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 340–45 (1990). Instead, we rely on the work of the many others who have established that it is generally possible to determine the “ordinary meaning” of language independent of the lawmaker’s intent or purpose. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79 (2006) (arguing that ordinary meaning can be derived by reading text through the lens of a “community’s shared conventions”); Jeremy Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 329, 339 (Andrei Marmor ed., 1995) (arguing that shared conventions inform the meaning of language). ↑
  18. In other contexts, courts will sometimes apply special treatment to a legal provision that quotes an extrinsic legal authority. For example, courts generally apply Auer deference to agencies’ interpretations of their own regulations, except for regulations that merely reiterate statutory provisions. See Gonzales v. Oregon, 546 U.S. 243, 256–57 (2006) (stating that deference under Auer v. Robbins, 519 U.S. 452 (1997), does not extend to agency rules that merely quote statutes). ↑
  19. See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1078 (2008) (identifying the two broad categories of justifications for deference: legal authority and epistemic authority). ↑
  20. Injunction, Black’s Law Dictionary 520 (10th ed. 2014); 43A C.J.S. Injunctions § 1 (2004) (“An injunction is a judicial order requiring a person to do or refrain from doing certain acts.”). ↑
  21. The heart of the ongoing debate over nationwide injunctions—more properly called “defendant-oriented injunctions”—concerns whether a court must tailor an injunction to protect only the rights of the plaintiffs before it, or instead may expand the order to protect the rights of third-party non-litigants as well. See Michael T. Morley, Disaggregating Nationwide Injunctions, 71 Ala. L. Rev. 1, 28–29 (2019). ↑
  22. See, e.g., Nw. Indian Cemetery Protective Ass’n v. Peterson, 565 F. Supp. 586, 606 (N.D. Cal. 1983) (after a trial, permanently enjoining road construction in portions of a national forest), aff’d in part, vacated in part 764 F.2d 581 (9th Cir. 1985), rev’d sub nom. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988). ↑
  23. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008) (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.”). ↑
  24. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”); accord Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (per curiam); see Kevin J. Lynch, The Lock-In Effect of Preliminary Injunctions, 66 Fla. L. Rev. 779, 817 (2014) (“When a preliminary injunction is granted, it merely preserves the status quo long enough for a decision to be reached on the merits . . . .”); Morton Denlow, The Motion for a Preliminary Injunction: Time for a Uniform Federal Standard, 22 Rev. Litig. 495, 507 (2003) (“Generally there are three purposes for granting a preliminary injunction: (1) maintaining the status quo, (2) preserving the court’s ability to render a meaningful decision, and (3) minimizing the risk of error.”). ↑
  25. Fed. R. Civ. P. 65(a)(1). ↑
  26. See, e.g., Fed. R. Civ. P. 65(b)(1) (authorizing TROs “without . . . notice to the adverse party” if the movant establishes that “immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard”). ↑
  27. Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986) (explaining that a consent decree draws its force from “the agreement of the parties, rather than the force of the law upon which the complaint was originally based”). ↑
  28. eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). These standards are only presumptive; Congress may change or eliminate them for a particular federal cause of action through clear statutory language. See Michael T. Morley, Enforcing Equality: Statutory Injunctions, Equitable Balancing Under eBay, and the Civil Rights Act of 1964, 2014 U. Chi. Legal F. 177, 190–94 [hereinafter Morley, Enforcing Equality]. Many states have similar standards for granting injunctions, see 43A C.J.S. Injunctions, supra note 18, § 42 (listing various states imposing similar requirements), although state courts may interpret and apply them differently than federal courts, see Michael T. Morley, Beyond the Elements: Erie and the Standards for Preliminary and Permanent Injunctions, 52 Akron L. Rev. 457, 465–68 (2018) [hereinafter Morley, Beyond the Elements]. ↑
  29. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (noting the close relationship between the standards for preliminary and permanent injunctive relief); see also 42 Am. Jur. 2d Injunctions § 8, Westlaw (database updated 2021). To obtain a preliminary injunction, a party must show that he is “likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The only differences between this standard and the requirements for permanent relief are that the plaintiff must show only a likelihood of success on the merits rather than actual success, and the court need not separately consider whether an adequate remedy at law exists. Id. The requirements for obtaining a TRO and a preliminary injunction are the same, except the plaintiff seeking a TRO must also demonstrate that circumstances made it impracticable or impossible to notify opposing counsel. See Fed. R. Civ. P. 65(b)(1); S. Cagle Juhan & Greg Rustico, Jurisdiction and Judicial Self-Defense, 165 U. Pa. L. Rev. Online 123, 126 (2017) (“[W]hen considering motions seeking TROs, courts use the same factors as for PIs . . . .”). ↑
  30. See Winter, 555 U.S. at 32 (“An injunction is a matter of equitable discretion.”); Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) (“[I]njunctive and declaratory judgment remedies are discretionary . . . .”). Because trial courts have such broad discretion concerning injunctions, appellate courts typically review both the decision to enter such orders, as well as their scope, only for abuse of discretion. United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 323 (1961). Nevertheless, on some occasions, appellate courts have engaged in detailed line-by-line parsing of lengthy injunctions, adjusting them as required to ensure their validity, see, e.g., Hartford-Empire Co. v. United States, 323 U.S. 386, 410–35 (1945). ↑
  31. In Local No. 93, 478 U.S. at 525–26, the U.S. Supreme Court held that a federal court may enter a consent decree if it has jurisdiction over the case, the decree “come[s] within the general scope of the case made by the pleadings,” it “further[s] the objectives of the law upon which the complaint was based,” and it does not affirmatively require “unlawful” action. ↑
  32. Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 461 (1940); accord FTC v. Nat’l Lead Co., 352 U.S. 419, 430 (1957) (“[T]he Court is obliged not only to suppress the unlawful practice but to take such reasonable action as is calculated to preclude the revival of the illegal practices.”); see also Tracy A. Thomas, The Prophylactic Remedy: Normative Principles and Definitional Parameters of Broad Injunctive Relief, 52 Buff. L. Rev. 301, 314 (2004) (“[T]here are two definitive attributes of the prophylactic remedy: it is (1) injunctive relief with a preventive goal, (2) that imposes specific measures reaching affiliated legal conduct that contributes to the primary harm.”). ↑
  33. Such broader relief is especially appropriate when the defendant has engaged in knowing and intentional wrongdoing. United States v. U.S. Gypsum Co., 340 U.S. 76, 89–90 (1950) (holding that people who willfully violate the law “call for repression by sterner measures than where the steps could reasonably have been thought permissible”). ↑
  34. Courts may also use injunctions to “cure the ill effects of the illegal conduct” by prohibiting the defendants from profiting from, or enjoying other benefits of, their past illegal activities. Id. at 88–89. For example, an injunction may cancel a contract executed as the result of a price-fixing conspiracy, even though the parties might have entered into the same contract without violating antitrust laws. See United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724 (1944). ↑
  35. Swift & Co. v. United States, 196 U.S. 375, 396 (1905); see NLRB v. Express Publ’g Co., 312 U.S. 426, 435–36 (1941) (“[T]he mere fact that a court has found that a defendant has committed an act in violation of a statute does not justify an injunction broadly to obey the statute,” when that statute prohibits conduct “unlike and unrelated to that with which he was originally charged.”). That said, some precedent suggests that when the Government wins an injunction against violations of federal statutes, it should get the benefit of the doubt about the proper scope of the order to ensure the law is adequately enforced. Local 167, Int’l Brotherhood of Teamsters v. United States, 291 U.S. 293, 299 (1934) (“In framing [the injunction’s] provisions doubts should be resolved in favor of the Government and against the conspirators.”); accord Hartford-Empire, 323 U.S. at 409 (suggesting that a court may “resolve all doubts in favor of the Government” in framing injunctions). ↑
  36. Fed. R. Civ. P. 65(d)(1)(A). Forty-four states have promulgated provisions comparable to Federal Rule 65. See Ala. R. Civ. P. 65; Alaska R. Civ. P. 65; Ariz. R. Civ. P. 65; Ark. R. Civ. P. 65; Cal. Code Civ. Proc. § 65; Colo. R. Civ. P. 65; Conn. Gen. Stat. Ann. § 53a-206; Del. Ch. Ct. R. 65; Fla. R. Civ. P. 1.610; Ga. Code Ann. § 9-11-65; Haw. R. Civ. P. 65; Idaho R. Civ. P. 65; 735 Ill. Comp. Stat. Ann. 5/11-101; Ind. R. Trial P. 65; Kan. Stat. Ann. § 60-906; Ky. R. Civ. P. 65.02; La. Code Civ. Proc. Ann. art. 3605; Me. R. Civ. P. 65; Md. R. 15-502; Mass. R. Civ. P. 65; Minn. R. Civ. P. 65.04; Miss. R. Civ. P. 65; Mo. Sup. Ct. R. 92.02; Mont. Code Ann. § 27-19-105; Neb. Rev. Stat. Ann. § 25-1064.01; Nev. R. Civ. P. 65; N.H. Sup. Ct. R. 48; N.J. Ct. R. 4:52-4; N.C. R. Civ. P. 65; N.D. R. Civ. P. 65; Ohio R. Civ. P. 65; Okla. Stat. tit. xii, § 12-1386; Or. R. Civ. P. 79; R.I. Super. Ct. R. Civ. P. 65; S.C. R. Civ. P. 65; S.D. Codified Laws § 15-6-65(d); Tenn. R. Civ. P. 65.02; Tex. R. Civ. P. 683; Utah R. Civ. P. 65A; Vt. R. Civ. P. 65; Wash. Super. Ct. Civ. R. 65; W. Va. R. Civ. P. 65; Wyo. R. Civ. P. 65. Of the other six states, five—Iowa, New York, Pennsylvania, Virginia, and Wisconsin—have adopted similar requirements by common law. 205 Corp. v. Brandow, 517 N.W.2d 548, 552 (Iowa 1994); Jacquin v. Pennick, 49 A.2d 769, 772 (Pa. Commw. Ct. 1982); Rollins v. Commonwealth, 177 S.E.2d 639, 642 (Va. 1970); Dalton v. Meister, 267 N.W.2d 326, 330 (Wis. 1978); see also 67A N.Y. Jur. 2d Injunctions § 167 (2021) (gathering cases describing New York’s specificity requirement for injunctions). Only New Mexico appears not to have adopted specificity requirements. ↑
  37. Fed. R. Civ. P. 65(d)(1)(B)–(C). Wright, Miller, and Kane’s treatise contends that the “requirement of ‘reasonable detail’ appears to be repetitious of the specificity requirement.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure – Civil § 2955 (3d ed. 2013). Whether an injunction is sufficiently clear depends on a holistic reading of the order. An otherwise vague provision in an injunction may provide adequate notice when read in conjunction with the order’s other provisions. Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 126 (1948) (noting that potentially vague provisions in an injunction must be “read . . . in light of the other paragraphs of the decree”). ↑
  38. Wright et al., supra note 35, § 2955; see also 13 William Moore, Federal Practice – Civil § 65.60[3] (“A court must frame its injunctions or restraining orders so that those who must obey them will know precisely what the court intends to forbid or require.”). Rule 65 further provides that an injunction binds only the parties to a case, their officers and agents, as well as third parties acting in concert with them, if they have notice of it. Fed. R. Civ. P. 65(d)(2). One of the authors has argued that Rule 65(d)(2) is a substantive rule that exceeds the judiciary’s rulemaking authority under the Rules Enabling Act, but the principles it codifies are consistent with both traditional equitable principles as well as the law of nearly all states. Morley, supra note 19, at 49 n.277. ↑
  39. Schmidt v. Lessard, 414 U.S. 473, 476 (1974); see also Wright et al., supra note 35, § 2955 (explaining that this specificity requirement is “designed to protect those who are enjoined by informing them of what they are called upon to do or refrain from doing in order to comply with the injunction or restraining order”). ↑
  40. Schmidt, 414 U.S. at 477. ↑
  41. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 296 (1941). Interestingly, the Court has also suggested, “[A] judge himself should draw the specific terms of such restraint and not rely on drafts submitted by the parties.” Id. ↑
  42. Regal Knitwear Co. v. NLRB, 324 U.S. 9, 10, 15 (1945) (upholding validity of an injunction which specified that it applied not only to the named respondent but its “successors and assigns” as well, because “[i]f defendants enter upon transactions which raise doubts as to the applicability of the injunction, they may petition the court granting it for a modification or construction of the order”); see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (upholding broad injunction in part based on respondents’ ability to “petition[] the District Court for a modification, clarification or construction of the order”); United States v. Crescent Amusement Co., 323 U.S. 173, 188 (1944) (suggesting that the “burden” of an injunction drafted in “general” terms can be “lightened by application to the court”). ↑
  43. See N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983) (Friendly, J.) (“The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.”). ↑
  44. Fed. R. Civ. P. 60(b)(5) (allowing a court to grant relief from an order when “applying it prospectively is no longer equitable”); see Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383 (1992) (“[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. . . . [and] the proposed modification is suitably tailored to the changed circumstance.”); cf. United States v. Swift & Co., 286 U.S. 106, 119 (1932) (holding that a district court may modify an antitrust consent decree upon a “clear showing of grievous wrong evoked by new and unforeseen conditions”); see generally 42 Am. Jur. 2d Injunctions § 288, Westlaw (database updated 2021) (summarizing the circumstances under which courts may modify or dissolve injunctions). ↑
  45. Gunn v. Univ. Comm. to End War in Viet Nam, 399 U.S. 383, 389 (1970) (“An injunctive order is an extraordinary writ, enforceable by the power of contempt.”). ↑
  46. See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986). ↑
  47. Hicks v. Feiock, 485 U.S. 624, 631 (1988). ↑
  48. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (explaining that contempt sanctions may “punish a prior offense”). ↑
  49. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). ↑
  50. Hicks, 485 U.S. at 632. Accordingly, defendants in criminal contempt proceedings are entitled to the same constitutional protections that apply in other criminal prosecutions. Id. (holding, in a contempt case, that “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings”). For example, defendants in criminal contempt proceedings have the rights to a jury trial (unless the punishment will be six months or less), Bloom v. Illinois, 391 U.S. 194, 210 (1968); to an attorney, Cooke v. United States, 267 U.S. 517, 537 (1925); and to have the prosecution prove its case beyond a reasonable doubt, Hicks, 485 U.S. at 632; Gompers, 221 U.S. at 444; see also U.S. Dep’t of Justice, Criminal Resource Manual § 754 (2012). ↑
  51. United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947). ↑
  52. Id. at 332 (Black, J., concurring in part and dissenting in part); Gompers, 221 U.S. at 441–42. ↑
  53. See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986) (citing United Mine Workers, 330 U.S. at 303–04). ↑
  54. Id.; Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (“The paradigmatic coercive, civil contempt sanction . . . involves confining a contemnor indefinitely until he complies with an affirmative command such as an order to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.” (internal quotation marks omitted)). ↑
  55. Bagwell, 512 U.S. at 838 (stating that courts may use the compensatory contempt power to “enter broad compensatory awards . . . through civil proceedings”); Doug Rendleman, Irreparability Resurrected?: Does a Recalibrated Irreparable Injury Rule Threaten the Warren Court’s Establishment Clause Legacy?, 59 Wash. & Lee L. Rev. 1343, 1379, 1390 (2002). ↑
  56. United Mine Workers, 330 U.S. at 304. ↑
  57. Gompers, 221 U.S. at 441–42. Although civil contempt may result in these harsh sanctions, fewer protections apply because it is not a criminal remedy. See Turner v. Rogers, 564 U.S. 431, 442 (2011) (“[W]here civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case.”); Bagwell, 512 U.S. at 827 (holding that “[n]either a jury trial nor proof beyond a reasonable doubt” is necessary for imposing “civil contempt sanctions”). ↑
  58. United Mine Workers, 330 U.S. at 304. ↑
  59. Turner, 564 U.S. at 442 (“[O]nce a civil contemnor complies with the underlying order, he is purged of the contempt and free.”); see also Gompers, 221 U.S. at 442 (explaining that the respondent “can end the sentence and discharge himself at any moment by doing what he had previously refused to do”). ↑
  60. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 53 (2012) (“Every application of a text to particular circumstances entails interpretation.”). ↑
  61. 1 Charles Fisk Beach, Jr., Commentaries on the Law of Injunctions § 261, at 272 (1895) (“[W]hether or not there has been a breach of an injunction must often turn upon the scope of its terms.”). ↑
  62. See Manning, Textualism, supra note 13, at 434 (stating that “modern textualists” look to the “ordinary meaning” of words and phrases, as well as “the relevant linguistic community’s (or sub-community’s) shared understandings and practices”). ↑
  63. Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
  64. Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting). ↑
  65. (1801) 31 Eng. Rep. 962. ↑
  66. Id. at 962. The injunction prohibited the defendant “from cutting down or felling any trees or timber standing or growing for ornament . . . of the mansion-house and buildings at Ombersley Court” and other nearby locations. Id. ↑
  67. Id. at 964. ↑
  68. Id. at 963–64. Woodward v. Earl Lincoln (1674) 36 Eng. Rep. 1000, provides another example of textualism. There, an injunction quieted possession of property. The enjoined individual later assisted a magistrate who lawfully seized the property for restitution. The court held that this assistance violated the injunction. Id. ↑
  69. 402 U.S. 673 (1971). ↑
  70. Id. at 676. ↑
  71. Id. ↑
  72. Id. at 674, 676. ↑
  73. Id. at 677. ↑
  74. Id. at 683. ↑
  75. Id. at 677. ↑
  76. Id. ↑
  77. Id. at 677–78. ↑
  78. Id. at 679. ↑
  79. Id. at 681; see also United States v. Atl. Ref. Co., 360 U.S. 19, 23–24 (1959) (interpreting language in a consent decree based on its “normal meaning,” rather than adopting “another reading” which “might seem more consistent with the Government’s reasons for entering into the agreement in the first place”); Hughes v. United States, 342 U.S. 353, 356–57 (1952) (applying plain-meaning interpretation of consent decree). Justice Douglas’ dissent in Armour employed a purposivist approach, instead. He declared that the “evil at which the decree is aimed is combining meatpackers with companies in other food product areas.” Armour, 402 U.S. at 686 (Douglas, J., dissenting). That harm would occur, Justice Douglas said, regardless of whether Armour itself sold prohibited food products, or a company that dealt in such products acquired Armour instead. Id. at 687. Accordingly, he argued, despite the consent decree’s narrow language, it should be given a broader construction to promote its underlying goals more effectively. ↑
  80. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1374 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958) (concluding that courts should “[i]nterpret the words of the statute immediately in question so as to carry out the purpose as best it can”); Max Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388, 407 (1942); see also Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (Hand, J.) (“[S]tatutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”). ↑
  81. Manning, supra note 15, at 91 (“Purposivists give precedence to policy context.” (emphasis omitted)). ↑
  82. See, e.g., Int’l Longshoreman’s & Warehouseman’s Union v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952) (applying a “looser, more liberal meaning” to the statutory term “district court of the United States” in order to include Alaska’s territorial courts). ↑
  83. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (“[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers . . . .”). ↑
  84. See 1 Edward M. Dangel, Contempt § 242 (1939) (“[I]t is the spirit and not the letter of the command to which obedience is required, and it must be obeyed in good faith according to its spirit.”). ↑
  85. Bolt v. Stanway (1795) 145 Eng. Rep. 965, 965; 2 Anst. 556, 556–57. ↑
  86. Id. ↑
  87. Id. at 965; 2 Anst. at 557; accord Chaplin v. Cooper (1812) 35 Eng. Rep. 7, 8; 1 V. & B. 16, 19; see also Axe v. Clarke (1779) 21 Eng. Rep. 383, 383–84; Dickens 549, 549–50 (concluding that requiring the sheriff to tender seized assets to satisfy a judgment violated an injunction prohibiting the plaintiff from recovering on that judgment); Robert Henley Eden, A Treatise on the Law of Injunctions 72–73 (1821) (agreeing that, when a court enjoins a person from suing to obtain someone else’s property, and the sheriff has attached that other person’s property, the enjoined party may not sue the sheriff to obtain the attached property). For another early example of purposivism, see St. John’s College, Oxford v. Carter (1839) 41 Eng. Rep. 191, 192; 4 My. & Cr. 497, 497–98 (holding that a defendant violated an injunction prohibiting him from chopping wood in Bagley Wood by encouraging others to chop the wood). ↑
  88. 24 Eng. Rep. 1006; 3 P. Wms. 146. ↑
  89. Id. at 1006; 3 P. Wms. at 146–47. ↑
  90. Id. at 1006; 3 P. Wms. at 148. Although relatively rare today, injunctions prohibiting individuals from launching new legal proceedings were historically common. See Eden, supra note 85, at 68. Courts regularly applied purposivism in interpreting those types of injunctions to ensure that they did not unduly interfere with already pending actions. Id. at 69. ↑
  91. 336 U.S. 187 (1949). ↑
  92. Id. at 189. ↑
  93. Id. at 190. ↑
  94. Id. ↑
  95. Id. ↑
  96. Id. ↑
  97. Id. at 195. ↑
  98. Id. at 192. ↑
  99. Id. ↑
  100. Id. at 193. ↑
  101. Id. ↑
  102. Id. at 192. Justice Frankfurter—usually an avowed purposivist, see, e.g., Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 538–39 (1947)—joined with Justice Jackson to issue a strong textualist dissent. He declared that injunctions must be “explicit and precise.” McComb, 336 U.S. at 195 (Frankfurter, J., dissenting). He believed that the injunction at issue lacked the “clearness of command” required for a court to conclude that the defendants had disobeyed it. Id. at 196. “Behind the vague inclusiveness of an injunction like the one before us,” Frankfurter cautioned, “is the hazard of retrospective interpretation as the basis of punishment through contempt proceedings.” Id. at 197. He further warned that holding respondents in contempt for violating vague or general injunction provisions would encourage courts to draft orders with “indefinite terms.” Id. “To be both strict and indefinite” was “a kind of judicial tyranny.” Id. at 195. ↑
  103. 312 U.S. 287 (1941). ↑
  104. Id. at 291–92. ↑
  105. Id. at 308 (Black, J., dissenting). ↑
  106. Id. ↑
  107. Id. ↑
  108. Id. at 298 (majority opinion). ↑
  109. Id. Justice Black, applying a primarily textualist approach, dissented, refusing to read such implicit limitations into the injunction. Rejecting Frankfurter’s interpretation, Black stated, “I find not even slight justification for an interpretation of this injunction so as to confine its prohibitions to conduct near stores dealing in respondent’s milk. Neither the language of the injunction nor that of the complaint which sought the injunction indicates such a limitation.” Id. at 310 (Black, J., dissenting). Black’s proposed methodology departed from textualism, however, because he argued that to interpret the injunction, the Court must consider not only the injunction itself, but also “the complaint, the answer, the evidence, the findings, and the decision and judgment of the Illinois courts.” Id. at 307. ↑
  110. See, e.g., United States v. Klinger, 199 F.2d 645, 648 (2d Cir. 1952) (Hand, J.) (“[W]hat we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion.”), aff’d by an equally divided Court, 345 U.S. 979 (1953) (per curiam). ↑
  111. Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983) (“The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar.”). ↑
  112. 280 U.S. 168 (1929). ↑
  113. 28 U.S.C. § 380 (1925) (current version at 28 U.S.C. § 2284 (2018)); Michael T. Morley, Vertical Stare Decisis and Three-Judge District Courts, 108 Geo. L.J. 699, 727–33 (2020). ↑
  114. Hobbs, 280 U.S. at 170. ↑
  115. Id. at 171. ↑
  116. Id. ↑
  117. Id. at 172. ↑
  118. Id. ↑
  119. See Ronald Dworkin, Law’s Empire 95 (1986) (explaining that pragmatism counsels courts to “make whatever decisions seem to them best for the community’s future, not counting any form of consistency with the past as valuable for its own sake”); Richard A. Posner, Law, Pragmatism, and Democracy 59–60 (2003) (arguing for legal interpretations that produce the best outcomes); Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 992 (2016) (explaining that pragmatism “posits only that judges should construe statutes by focusing on the practical consequences that will result from an interpretation and seeking the best result”). ↑
  120. Krishnakumar, supra note 117, at 993 (noting that pragmatists argue that interpretation should take into account both social context and more tangible consequences). ↑
  121. Id. (noting that pragmatists argue that “the goal of statutory interpretation should be to produce the best results for society”) (citing Richard A. Posner, The Problematics of Moral & Legal Theory 227 (1999); Richard A. Posner, The Problems of Jurisprudence 73–74 (1990)). ↑
  122. 62 F.3d 903, 906 (7th Cir. 1995) (Posner, C.J.). ↑
  123. Id. at 905. ↑
  124. Id. ↑
  125. Id. at 907. ↑
  126. Id. ↑
  127. Id. at 906. ↑
  128. Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
  129. Although a court should generally employ textualism to determine the meaning of injunctions, we also propose that a court consider an injunction’s purpose when determining whether to impose sanctions on a violator. See infra Section III.C. ↑
  130. See infra Section III.A. ↑
  131. Manning, Equity, supra note 13, at 7 (arguing that textualism more faithfully implements legislative will than purposivism). ↑
  132. See Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57, 87 (2014) (explaining how political minorities may use vetogates to block legislation). ↑
  133. Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983) (“Although legislators have individual lists of desires, priorities, and preferences, it turns out to be difficult, sometimes impossible, to aggregate these lists into a coherent collective choice.”). ↑
  134. See id. at 546. ↑
  135. U.S. Const. art. I, § 7. All states have a presentment requirement, see Jordan E. Pratt, Disregard of Unconstitutional Laws in the Plural State Executive, 86 Miss. L.J. 881, 910 (2017) (“Like the federal Constitution, all state constitutions require that, to become law, bills must either be passed by the legislature and approved by the governor, or enacted by the legislature over the governor’s veto.”), and forty-nine have bicameralism requirements, see Hillel Y. Levin, Stacie Patrice Kershner, Timothy D. Lytton, Daniel Salmon & Saad B. Omer, Stopping the Resurgence of Vaccine-Preventable Childhood Diseases: Policy, Politics, and Law, 2020 U. Ill. L. Rev. 233, 252 (discussing the “forty-nine states with bicameral legislatures”). ↑
  136. Antonin Scalia & John F. Manning, A Dialogue on Statutory and Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610, 1612 (2012) (“Nothing but the text has received the approval of the majority of the legislature and of the President, assuming that he signed it rather than vetoed it and had it passed over his veto. Nothing but the text reflects the full legislature’s purpose.”). ↑
  137. Baker v. Gen. Motors Corp., 522 U.S. 222, 236 (1998) (“Sanctions for violations of an injunction, in any event, are generally administered by the court that issued the injunction.”). ↑
  138. See Seidenberg, supra note 12, at 16 (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”). ↑
  139. Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 557 (2009) [hereinafter Fair Notice] (“[T]extualism by its very definition seeks to satisfy this dictate of fair notice . . . .”). ↑
  140. See Smith v. Goguen, 415 U.S. 566, 572 & n.8 (1974) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). ↑
  141. Carissa Byrne Hessick & F. Andrew Hessick, Procedural Rights at Sentencing, 90 Notre Dame L. Rev. 187, 210 (2014). ↑
  142. See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (“Vague laws contravene the ‘first essential of due process of law’ that statutes must give people ‘of common intelligence’ fair notice of what the law demands of them.” (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926))). ↑
  143. U.S. Const. art. I, § 9, cl. 3 (prohibiting Congress from enacting ex post facto laws); id. art. I, § 10, cl. 1 (prohibiting states from enacting ex post facto laws); see Bouie v. City of Columbia, 378 U.S. 347, 353–54 (1964). ↑
  144. Charles Stewart Drewry, A Treatise on the Law and Practice of Injunctions 398 (1842) (“To be guilty of a breach of injunction, the party must have notice of it . . . .”). ↑
  145. See, e.g., Marquis of Downshire v. Lady Sandys (1801) 31 Eng. Rep. 962, 963; 6 Ves. Jun. 108, 109 (observing the duty of the courts to define an injunction’s terms “with precision and accuracy” so that it “might be clearly understood by the parties”); Skip v. Harwood (1747) 26 Eng. Rep. 1125, 1125; 3 Atk. 564, 565 (discussing the importance of notice in an injunction). ↑
  146. Cal. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885). ↑
  147. Taggart v. Lorenzen, 139 S. Ct. 1795, 1802 (2019) (“‘[B]asic fairness requir[es] that those enjoined receive explicit notice’ of ‘what conduct is outlawed’ before being held in civil contempt . . . .” (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam))). ↑
  148. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820); see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.”). ↑
  149. United States v. Davis, 139 S. Ct. 2319, 2333 (2019). ↑
  150. See id. (observing that the rule of lenity “is founded on ‘the tenderness of the law for the rights of individuals’ to fair notice of the law” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)); United States v. Bass, 404 U.S. 336, 348 (1971) (explaining that the rule of lenity arises in part from “the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should” (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967))); see also United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion) (stating that the rule of lenity “vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed”). ↑
  151. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”); United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517–18 (1992) (plurality opinion) (applying the rule of lenity to a “tax statute . . . in a civil setting” because the statute “has criminal applications”). ↑
  152. See Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (holding that, if a court must construe a statute’s language a particular way in one setting, that interpretation carries over to other settings, and declaring that “[t]he lowest common denominator, as it were, must govern”). ↑
  153. Although the rule of lenity is a doctrine of statutory interpretation, a handful of courts have applied it when interpreting injunctions to decide whether to impose criminal contempt. See, e.g., Gates v. Pfeiffer, No. G039450, 2009 WL 693468, at *9 (Cal. Ct. App. Mar. 17, 2009) (citing Lopez v. Superior Court, 72 Cal. Rptr. 3d 929, 935 (Ct. App. 2008)) (“As a penal law, the restraining order was subject to the so-called ‘rule of lenity,’ which requires that ambiguities in penal laws be construed in favor of defendants.”). ↑
  154. See supra notes 44–45 and accompanying text. ↑
  155. See supra notes 46–49 and accompanying text. ↑
  156. Cf. Leocal, 543 U.S. at 11 n.8 (explaining that “[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies”). ↑
  157. Taggart v. Lorenzen, 139 S. Ct. 1795, 1801–02 (2019) (justifying the rule of strict construction in a compensatory contempt case on the ground that coercive contempt can be a severe remedy); see also Shillitani v. United States, 384 U.S. 364, 369 (1966) (stating that civil contempt constitutes “punishment,” but that it has a different “character and purpose” than criminal contempt (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911))). ↑
  158. See Fair Notice, supra note 137, at 557 (“Textualism as fair notice emphasizes the importance of interpreting laws as their subjects would fairly have expected them to apply.”). ↑
  159. See Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
  160. See Hart & Sacks, supra note 78, at 1374 (concluding that courts should “[i]nterpret the words of the statute immediately in question so as to carry out the purpose as best it can”). ↑
  161. See Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 63 (1988) (“[L]aw is like a vector. It has length as well as direction. We must find both, or we know nothing of value. To find length we must take account of objectives, of means chosen, and of stopping places identified.”). ↑
  162. See Posner, supra note 109, at 817 (explaining that, under an intentionalist approach, “the task for the judge . . . [is] to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar”). ↑
  163. Krishnakumar, supra note 117, at 993 (noting that pragmatists argue that interpretation should consider social context and practical consequences). ↑
  164. Id. at 915 (noting that pragmatism “does not claim to promote predictability”). ↑
  165. See Manning, Textualism, supra note 13, at 434 (stating that “modern textualists” look to the “ordinary meaning” of words and phrases, as well as “the relevant linguistic community’s (or sub-community’s) shared understandings and practices”). ↑
  166. Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (“[T]o speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e., as a weapon. To be sure, ‘one can use a firearm in a number of ways,’ . . . including as an article of exchange, . . . but that is not the ordinary meaning of ‘using’ [it].” (footnote omitted)). ↑
  167. The rule of lenity would point toward the narrower definition of use, of course. ↑
  168. Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)) (noting that protection from “arbitrary, wrongful government actions” is a core feature of due process). ↑
  169. The Federalist No. 47, at 316 (James Madison) (Harvard Univ. Press ed. 2009) (praising separation of powers on the ground that “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny”); see INS v. Chadha, 462 U.S. 919, 959 (1983) (“[W]e have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”). ↑
  170. See The Federalist No. 47 (James Madison); Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1534 (1991) (“[S]eparation of powers [is] aimed at the interconnected goals of preventing tyranny and protecting liberty.”); see also Ilan Wurman, Constitutional Administration, 69 Stan. L. Rev. 359, 368–69 (2017). ↑
  171. Of course, injunctions predate modern conceptions of separation of powers. But the primary reason the Framers adopted separation of powers as a critical structural principle for the Constitution was to provide increased protection for individual liberty compared to the traditional English system. See Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 16–17 (2006) (“Having endured the tyranny of the King of England, the framers viewed the principle of separation of powers as the central guarantee of a just government.”). ↑
  172. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 840, (1994) (Scalia, J., concurring) (“That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers.”). ↑
  173. Charles de Montesquieu, The Spirit of the Laws 174 (Thomas Nugent trans., 1873) (1748) (stating that, if those functions are united, “the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator” (emphasis added)); accord The Federalist No. 47 (James Madison); see also Irving R. Kaufman, The Essence of Judicial Independence, 80 Colum. L. Rev. 671, 701 (1980) (arguing that separating the judiciary from the legislature is central to ensuring “impartial justice”). ↑
  174. Doug Rendleman, Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity, 91 U. Colo. L. Rev. 887, 931 (2020) (“The structural injunction has faced criticism on two major grounds: federalism and separation of powers.”). ↑
  175. Fed. R. Civ. P. 65(d)(1)(B)–(C). ↑
  176. See supra note 34. ↑
  177. Wright et al., supra note 35, § 2955 (explaining that, since Rule 65(d)’s language “strongly suggests that only those acts specified by the order will be treated as within its scope and that no conduct or action will be prohibited by implication, all omissions or ambiguities in the order will be resolved in favor of any person charged with contempt”). ↑
  178. See, e.g., Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 906 (7th Cir. 1995); see also supra notes 120–25 (discussing Schering). ↑
  179. See Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (declining to enforce an injunction on the grounds it violated Rule 65(d), because the order was neither “‘specific’ in outlining the ‘terms’ of the injunctive relief granted,” nor “describe[d] ‘in reasonable detail . . . the act or acts sought to be restrained’”); see also Int’l Longshoreman’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64, 76 (1967) (overturning “unintelligible” injunction); Hartford-Empire Co. v. United States, 323 U.S. 386, 410 (1945); see also Atiyeh v. Capps, 449 U.S. 1312, 1317 (1981) (Rehnquist, C.J., in chambers) (staying order requiring prison officials to reduce prison population by “at least 250” by a particular date because it “falls short of this specificity requirement”). ↑
  180. In Madsen v. Women’s Health Center, 512 U.S. 753, 808–09 (1994), Justice Scalia suggested in his concurrence that the injunction at issue should be read narrowly to satisfy the precision requirement. But in doing so, Justice Scalia did not suggest that a judge’s intent could be used to cure an otherwise defective injunction. Instead, he effectively used the precision requirement as the basis for a substantive canon of interpretation, analogous to the constitutional avoidance principle. Cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (declining to interpret a federal law in a way that would raise “difficult and sensitive questions” under the First Amendment). Under Justice Scalia’s approach, courts should reject a broad interpretation of an injunction that would cause that injunction to violate Rule 65(d)’s “axiomatic requirement that its terms be drawn with precision.” Madsen, 512 U.S. at 809. ↑
  181. See, e.g., Malley v. Briggs, 475 U.S. 335, 342 (1986) (“[O]ur role is to interpret the intent of Congress in enacting [42 U.S.C.] § 1983 . . . .”). ↑
  182. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of an injunction is to prevent future violations” of the underlying legal provisions.); cf. Cont’l Ill. Nat’l Bank & Trust Co. v. Chi., Rock Island & Pac. Rye Co., 294 U.S. 648, 676 (1935) (noting that an injunction may be issued “for the purpose of protecting and preserving the jurisdiction of the court ‘until the object of the suit is accomplished and complete justice done between the parties’” (quoting Looney v. E. Tex. R.R. Co., 247 U.S. 214, 221 (1918))). ↑
  183. See supra note 77. ↑
  184. See supra notes 108–09 and accompanying text. ↑
  185. See, e.g., Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 632 (7th Cir. 2003) (Posner, J.) (describing an injunction as “appallingly bad” and ordering its modification sua sponte); W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 109 (5th Cir. 1994) (recognizing a district court’s authority to modify injunctions sua sponte with prior notice to the parties). See generally Wright et al., supra note 35, § 2961 (noting the “universally recognized principle that a court has continuing power to modify or vacate” an injunction). ↑
  186. See Jost, supra note 11, at 1109 (explaining how courts can use their power to modify injunctions to address unexpected changes in circumstance); see, e.g., Chrysler Corp. v. United States, 316 U.S. 556, 560 (1942) (modifying injunction in light of the parties’ actions). ↑
  187. See United States v. Armour & Co., 402 U.S. 673, 681–82 (1971) (refusing to interpret a consent decree beyond its “four corners,” and declaring that the Government should instead ask the trial court to modify the decree if it is not achieving its intended purposes). Requiring a textualist approach would also incentivize judges to craft injunctions more precisely, to accurately embody their intended proscriptions and promote their goals. ↑
  188. See supra notes 31–33 and accompanying text. ↑
  189. See id. ↑
  190. This argument does not go to the nature of an injunction. Instead, it is an argument about the court’s role in interpreting injunctions. In other words, the argument does not claim that an injunction is the intent of the drafter; rather, it claims that, to perform their role as agent honestly, courts should seek to implement the drafter’s intent. ↑
  191. See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112 (2010) (discussing the faithful agent theory of interpretation). ↑
  192. Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1284–85 (2020). ↑
  193. Richard H. Fallon, Jr., Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation—and the Irreducible Roles of Values and Judgment Within Both, 99 Cornell L. Rev. 685, 686 (2014) (“A central ambition of most theories of statutory interpretation is to ensure that judges act as faithful agents of the legislature . . . .”); Frank H. Easterbrook, Judges as Honest Agents, 33 Harv. J.L. & Pub. Pol’y 915, 915 (2010) (“The honest-agent [theory] is not controversial.”). ↑
  194. Manning, Equity, supra note 13, at 16 & n.65 (“[A] faithful agent’s job is to decode legislative instructions according to the common social and linguistic conventions shared by the relevant community.”); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63 (1994); see also Fallon, supra note 191, at 687 (“In textualists’ estimation, courts best act as faithful agents by enforcing the fair meaning of the words that the legislature enacted.”). ↑
  195. See Easterbrook, supra note 191, at 922 (describing difficulties in identifying the desires of drafters); Krishnakumar, supra note 190, at 1334–35 (“[M]any textualists take the view that the enacted text is the best available evidence of Congress’s intent and that close attention to the text is the only way to accurately effectuate that intent.”). ↑
  196. See, e.g., In re W.R. Grace & Co., 475 B.R. 34, 95–96 (D. Del. 2012) (discussing injunction incorporating statutes relating to asbestos claims); In re S.N., No. E055823, 2014 WL 185651, at *4 (Cal. Ct. App. Jan. 16, 2014) (discussing injunction incorporating statutes relating to gang violence). ↑
  197. See, e.g., Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1237 (2015) (explaining how different theories are appropriate for interpreting various types of texts). ↑
  198. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958) (first proposing this famous example). ↑
  199. Cf. Clark v. Martinez, 543 U.S. 371, 380 (2005) (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.”); Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (explaining that, if a statute has criminal and civil applications, courts “must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context”). ↑
  200. See, e.g., Matter of Rimsat, Ltd., 98 F.3d 956, 965 (7th Cir. 1996) (interpreting an injunction that quoted § 543(b) of the Bankruptcy Code by construing that provision of the Code). ↑
  201. Auer v. Robbins, 519 U.S. 452, 461–62 (1997) (holding that an agency’s interpretation of its own regulation that reflects its “fair and considered judgment on the matter in question” is “controlling unless ‘plainly erroneous or inconsistent with the regulation,’” even if the agency adopted that interpretation without notice-and-comment rulemaking and communicated it in an amicus brief (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989))); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019) (holding that Auer deference “enables the agency to fill out the regulatory scheme Congress has placed under its supervision,” but cautioning that “th[e] Court has cabined Auer’s scope in varied and critical ways”); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (providing that, when a regulation’s “meaning . . . is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation”). ↑
  202. Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (“An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.”). But see Hanah Metchis Volokh, The Anti-Parroting Canon, 6 N.Y.U. J.L. & Liberty 292, 311 (2011) (“[T]he fact that a statute and a regulation use the same words should not always lead to the conclusion that they mean the same thing.”). ↑
  203. Gonzales, 546 U.S. at 257. ↑
  204. Id. ↑
  205. See supra Section II.A. ↑
  206. See supra note 200 and accompanying text. ↑
  207. See supra note 27. ↑
  208. See supra note 42 and accompanying text. ↑
  209. Cf. Morley, Beyond the Elements, supra note 26, at 477 (discussing “[t]he need for consistency between the standards for preliminary and permanent injunctions”). ↑
  210. Fed. R. Civ. P. 65(b)(1). ↑
  211. Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986) (holding that consent decrees are “hybrid[s]” that can be characterized as both contracts and judgments). But see Thomas M. Mengler, Consent Decree Paradigms: Models Without Meaning, 29 B.C. L. Rev. 291 (1988) (arguing that a consent decree cannot be treated either as a traditional contract or court order). ↑
  212. Local No. 93, 478 U.S. at 519 (“[B]ecause their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts.”). ↑
  213. See, e.g., EEOC v. Local 580, Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, 925 F.2d 588, 594 (2d Cir. 1991). ↑
  214. 420 U.S. 223 (1975). ↑
  215. Id. at 238. ↑
  216. Id. ↑
  217. See Local No. 93, 478 U.S. at 518 (agreeing that a “consent decree looks like and is entered as a judgment”). ↑
  218. ITT Continental Baking, 420 U.S. at 247 (Stewart, J., dissenting) (accusing the majority of “proclaim[ing] a new rule of construction for consent orders or decrees” that was “totally at odds with our previous decisions” and “directly contrary” to precedents allowing a court to consider only the “four corners” of a consent decree); see also United States v. Armour & Co., 402 U.S. 673, 682 (1971) (“[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.”); United States v. Atl. Refin. Co., 360 U.S. 19, 23–24 (1959) (interpreting language in a consent decree based on its “normal meaning,” rather than adopting “another reading” which “might seem more consistent with the Government’s reasons for entering into the agreement in the first place”); Hughes v. United States, 342 U.S. 353, 356–57 (1952) (applying plain-meaning interpretation of consent decree). ↑
  219. See Fed. R. Civ. P. 65(d)(2). ↑
  220. Alternatively, federal courts could create a body of federal common law principles for interpreting consent decrees. Creating such a unique interpretive regime distinct from the law governing other types of injunctions seems unnecessarily duplicative, complicated, and burdensome. And any such body of federal common law is likely to be plagued with the same inconsistencies and indeterminacy as the law governing constitutional and statutory interpretation. ↑
  221. Differences in contract law among the states could substantially impact a consent decree’s proper interpretation. For example, states differ on whether contracts must be construed in light of an implied duty of good faith and fair dealing; states that have recognized such a duty have adopted different approaches on how to construe and apply it. See Richard A. Bales, The Discord Between Collective Bargaining and Individual Employment Rights: Theoretical Origins and a Proposed Reconciliation, 77 B.U. L. Rev. 687, 751 (1997) (“[S]ome but not all states imply a duty of good faith and fair dealing into every contract . . . .”); Thomas A. Diamond & Howard Foss, Proposed Standards for Evaluating When the Covenant of Good Faith and Fair Dealing Has Been Violated: A Framework for Resolving the Mystery, 47 Hastings L.J. 585, 590 (1990) (“[A]uthorities differ about the methodology for determining whether conduct violates the covenant [of good faith].”). ↑
  222. Armour & Co., 402 U.S. at 681. ↑
  223. Id. at 681–82 (“[T]he decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.”). ↑
  224. See Manning, supra note 15, at 70–71, 74 (advocating for textualism because legislation embodies a compromise); see also Easterbrook, supra note 159, at 63 (noting that a non-textualist interpretative approach ignores that “laws are born of compromise”). ↑
  225. See Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637, 663–64 (2014). ↑
  226. Id. at 682–88. ↑
  227. See, e.g., Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper, 545 F.3d 21, 25 (1st Cir. 2008) (explaining that “even if all of [the] conditions [for contempt] are satisfied, the trial court retains a certain negative discretion . . . to eschew the imposition of a contempt sanction . . . in the interests of justice”); Trials, 45 Geo. L.J. Ann. Rev. Crim. Proc. 569, 683 (2016) (“Courts have broad discretion in finding civil contempt and in imposing sanctions . . . .”). ↑
  228. See United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947) (“In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court’s order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future.”); e.g., United States v. Henderson, No. CR 10-117 BDB, 2012 WL 787575, at *3 (N.D. Okla. Mar. 9, 2012) (“In exercising that discretion, the Court will consider factors such as the egregiousness of the violation, the extent to which the disclosure maligned Petitioner’s reputation, and any countervailing considerations that might have supported the disclosure or that militate against imposition of the severe sanction of contempt.”). ↑
  229. See, e.g., Angiodynamics, Inc. v. Biolitec AG, 946 F. Supp. 2d 205, 213 (D. Mass. 2013) (“The text of a court order determines its power over parties. To allow parties to independently deduce the purpose of a court order and determine what acts would be most in line with the purpose—regardless of the text—would make this court irrelevant.”). ↑
  230. See, e.g., Navajo Nation v. Peabody Coal Co., 7 F. App’x 951, 956 (Fed. Cir. 2001) (affirming trial court’s refusal to hold a party in contempt for violating an injunction, because the party’s actions “did not thwart a purpose behind any of the [trial court’s] orders” (citing In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 694–95 (9th Cir. 1993))). ↑
  231. The original form of the rule of lenity specified that courts could not extend a criminal statute beyond its text, but could narrow the statute in favor of defendants by considering its purpose. See, e.g., State v. Norfolk S. R.R. Co., 82 S.E. 963, 966 (N.C. 1914) (“It is an ancient, but just and equitable, doctrine which extends a penal statute beyond its words in favor of a defendant, while holding it tightly to its words against him.”); 1 William A. Hawkins, Treatise of the Pleas of the Crown, ch. 30, § 8, at 77 (1st ed. 1712) (“Penal Statutes are construed strictly against the Subject, and favuorably and equitably for him.”). The rule thus called for different methods of interpretation: textualism to prevent the extension of criminal statutes and purposivism to narrow them.

    Such blending of methodologies is uncommon, if not disfavored, today, because each method of interpretation rests on a different set of assumptions and principles. Our proposal avoids this difficulty by permitting courts to consider purpose and other non-textual methods only at the remedial stage, after the court has determined that the text of the injunction has been violated. ↑

  232. Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”). ↑
  233. See, e.g., In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that an appellate court should give “great deference” to a judge’s interpretation of an injunction that he entered); Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 908 (7th Cir. 1995) (“When the district judge who is being asked to interpret an injunction is the same judge who entered it . . . , we should give particularly heavy weight to the district court’s interpretation.”); Hensley v. Bd. of Educ. of Unified Sch. Dist. No. 443, Ford Cnty., 504 P.2d 184, 188 (Kan. 1972) (“When the same trial judge who entered an injunction order hears a later contempt proceeding based on violation of that injunction the interpretation . . . will generally be followed by the appellate court.”); see also Salazar v. Buono, 559 U.S. 700, 762 (2010) (Breyer, J., dissenting) (stating that “the construction given to an injunction by the issuing judge . . . is entitled to great weight” (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 795 (1994) (Scalia, J., concurring in judgment in part and dissenting in part))). It should be noted that Justice Scalia’s endorsement of deferential review is at least somewhat in tension with his concern that allowing the judge who entered an injunction to determine whether that injunction was violated is a recipe for abuse. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 840 (1994) (Scalia, J. concurring). ↑
  234. See Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 758 (1982) (stating that plenary review is necessary to achieve consistency in the law). ↑
  235. See id.; Ass’n of Cmty. Orgs. for Reform Now (“ACORN”) v. Ill. State Bd. of Elections, 75 F.3d 304, 306 (7th Cir. 1996) (observing that the interpretation of an injunction “clarifies . . . the injunction”). ↑
  236. Chad M. Oldfather, Error Correction, 85 Ind. L.J. 49, 55 (2010) (“[D]eferential standards . . . mean that reversal often does not follow from an appellate court’s conclusion that it would have implemented the applicable law differently were it the decision maker in the first instance.”). ↑
  237. Cf. Jeffrey M. Surprenant, Comment, Pulling the Reins on Chevron, 65 Loy. L. Rev. 399, 420 (2019) (“[E]mploying a de novo review would encourage both legislative drafters and their agency helpers to write clear statutes that will withstand judicial scrutiny.”); Laurence H. Silberman, Chevron—The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 824 (1990) (stating that Chevron should lead Congress to be more careful in drafting laws when it wants to avoid delegation). ↑
  238. Anita S. Krishnakumar, Textualism and Statutory Precedents, 104 Va. L. Rev. 157, 204 (2018) (“Textualist judges, particularly in the post-Scalia era, tend to presume that there is a correct, definitive answer to every (or nearly every) interpretive question . . . .”); see also Christine Kexel Chabot, Selling Chevron, 67 Admin. L. Rev. 481, 509 (2015) (“[T]extualists assume Congress has provided a single, objectively determinable meaning in statutory text.”). ↑
  239. William Ortman, Rulemaking’s Missing Tier, 68 Ala. L. Rev. 225, 246 (2016) (identifying various “structural epistemic advantages” that “reduce the likelihood of legal error” by the appellate courts). ↑
  240. See Marin K. Levy, Visiting Judges, 107 Calif. L. Rev. 67, 139 (2019) (noting the pressures faced by district judges and not appellate judges). ↑
  241. See Ortman, supra note 237, at 247–48 ↑
  242. In arguing that appellate courts should review interpretations de novo, we do not mean to say that appellate courts should review de novo the decision to impose contempt for violations. An injunction’s proper interpretation is a question of law. It is distinct from the subsequent question of whether to hold a person who has violated the injunction in contempt. Decisions about whether to impose contempt sanctions on violators depend on a myriad of factors. See supra note 226 and accompanying text. An appellate court should overturn that decision only if it constitutes an abuse of discretion. Perez v. Danbury Hosp., 347 F.3d 419, 423 (2d Cir. 2003) (reviewing a “finding of contempt under an abuse of discretion standard”). ↑
  243. Horwitz, supra note 17, at 1078. ↑
  244. See id. at 1078–85. ↑
  245. See id. at 1085–90. ↑
  246. See id. at 1072–78. ↑
  247. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). ↑
  248. See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740–41 (1996) (“We accord deference to agencies under Chevron . . . because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency . . . .”); see also Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 515 (1989) (providing a similar justification for Chevron deference). ↑
  249. Smiley, 517 U.S. at 740–71. ↑
  250. Auer v. Robbins, 519 U.S. 452 (1997). ↑
  251. See Kisor v. Wilkie, 139 S. Ct. 2400, 2412 (2019) (plurality opinion) (“We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities.”). A closely related justification for deference to agencies that the Kisor Court identified is that interpreting federal laws necessarily involves policy decisions which Congress has empowered agencies to make. Id. at 2413. There is no comparable assignment of policy-making authority to federal trial courts. More importantly, contempt proceedings are held after an alleged violation of an injunction has occurred. Allowing trial courts to implement policy considerations when interpreting an injunction at that late point would acutely raise the notice and abuse problems outlined earlier. ↑
  252. Cf. Grupo Mexicano de Desarrollo, SA v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) (explaining that federal courts’ equity powers are limited by the historical practices of the English Court of Chancery). ↑
  253. Bray, supra note 4, at 446 (“There was no appeal from the Chancellor . . . .”). ↑
  254. Horwitz, supra note 17, at 1085 (“The second basic justification for judicial deference is not grounded on the legal authority of the institution to which the courts defer, but rather on its epistemic authority.”). ↑
  255. See United States ex rel. Graham v. Mancusi, 457 F.2d 463, 469–70 (2d Cir. 1972) (Friendly, J.) (“It would still be for the judge who saw and heard the witnesses at the trial or, better, another judge who would see and hear them without having been exposed to the illegal evidence, to determine where the truth lay—not for appellate judges reading a cold record.”); see also Brown v. Plata, 563 U.S. 493, 555 (2011) (Scalia, J., dissenting) (“[H]aving viewed the trial first hand [the trial judge] is in a better position to evaluate the evidence than a judge reviewing a cold record.”). ↑
  256. See, e.g., Emps. Ins. of Wausau v. Browner, 52 F.3d 656, 666 (7th Cir. 1995). ↑
  257. Id. ↑
  258. 139 S. Ct. 2400, 2412 (2019). ↑
  259. Id. ↑
  260. John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337, 1355 (1998) (arguing that textualists can consider other people’s interpretations of a statute, because “the way reasonable persons actually understood a text” can be useful evidence of the text’s meaning, particularly “if those persons had special familiarity with the temper and events of the times that produced that text”); see also Kent Greenawalt, The Nature of Rules and the Meaning of Meaning, 72 Notre Dame L. Rev. 1449, 1451 (1997) (discussing the evidentiary value of other people’s interpretations of a text). ↑
  261. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). ↑

  262. Id.; cf. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1238 (2007) (“Skidmore’s sliding scale encompasses three zones or ‘moods’ reflecting strong, intermediate, and weak or no deference.”). ↑

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