Issue 4

Relational Fairness in the Administrative State

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The American administrative state suffers from widespread claims of normative illegitimacy because administrative agencies and their personnel are neither enshrined in the Constitution nor directly elected. As a result, Supreme Court Justices and commentators openly question whether agencies should be able to compel citizens to follow agency actions. Normative legitimacy is important to administrative agencies because it explains why people have moral duties to obey agency rules, including rules with which they may disagree, even though agencies lack the traditional hallmarks of democratic governance.

This Article answers the critics head-on by proposing a new theory of normative legitimacy for the administrative state called “relational fairness.” Relational fairness states that all persons potentially affected by agency action must have the opportunity to deliberate with the agency during administrative decision-making according to certain procedural, relational, and substantive values. In contrast to previous theories that attempted to legitimate agencies by connecting them to other political institutions, relational fairness articulates how the administrative state can attain normative legitimacy in its own right by establishing a new democratic relationship between agencies and citizens.

Although some courts have shown implicit concern for relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state. Relational fairness leads to a deferential form of arbitrariness review that reduces the ability of judges to insert their own ideological ends, reintroduces the importance of regulating agency ex parte communications, and unifies legal rules on valid agency usage of guidance documents. The theory also argues notice-and-comment rulemaking is illegitimate and advocates for alternative informal rulemaking structures to improve the legitimacy of agencies.

Introduction

Since the New Deal ushered in the contemporary administrative state, lawyers and scholars have attempted to legitimate its place in our democratic government.1 1.Michael P. Vandenbergh, The Private Life of Public Law, 105 Colum. L. Rev. 2029, 2035 (2005) (“Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear.”).Show More The task is difficult. Unlike Congress and the President, agency staff are not elected.2 2.U.S. Const. art. III. The Constitution does mention “[d]epartments” in the Opinions Clause, so the Framers perhaps contemplated the existence of some type of agency. Id. art. II, § 2, cl. 1. However, there is no substantive discussion of the form or structure such institutions should take.Show More Unlike the judiciary, the Constitution does not delineate the structure of agencies.3 3.Edward H. Stiglitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 635 (2018) (“The administrative state is an awkward creature in our constitutional system—in the eyes of many, an unseemly chimera . . . .”).Show More The fact that agencies express power through methods that span the branches makes things even more problematic for their legitimation.4 4.Administrative Procedure Act, 5 U.S.C. §§ 553–554. Some administrative action falls under the Take Care Clause. U.S. Const. art. II, § 3. The constitutional derivation of the independent agency and “mixed” agencies, which perform both rulemaking and adjudication, is more complicated. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (holding that the President has limited removal power over agency officials acting in a “quasi-legislative and quasi-judicial” capacity).Show More Executing laws is the province of the executive, rulemaking looks like legislation, and adjudications mimic the work of the judiciary.5 5.“Administrative state” comprises the group of political institutions in government not located in Congress or the Executive Office that therefore have some insulation from these branches. This being said, as Datla and Revesz show, the level of agency independence from the branches is a matter of degree and not a binary variable. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772–73 (2013). “The administrative state” is commonly used to describe the post-New Deal conglomeration of independent and executive agencies and has its origin in nineteenth-century French and German writings on administration (“1’état administratif” and “die verwaltungsstaat,” respectively). Mark Rutgers, Beyond Woodrow Wilson: The Identity of the Study of Public Administration in Historical Perspective, 29 Admin. & Soc’y 276, 285–90 (1997); see also Dwight Waldo, The Administrative State (1948) (popularizing the term “the administrative state” to American audiences).Show More These features put the administrative state6 6.For examples, see infra note 18.Show More in an uncomfortable position in our democratic system.7 7.Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382, 385 (2011) [hereinafter Farina et al., Rulemaking in 140 Characters].Show More

Despite this problem of administrative legitimation, agencies express power to regulate seemingly every aspect of modern life.8 8.John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law and Economics 38 (Francesco Parisi ed., 2017).Show More In 2013, administrative agencies finalized over 2,800 rules.9 9.Regulatory Information Database, U.S. Gen. Servs. Admin., https://www.reginfo.gov [https://perma.cc/7VVD-2U6Z] (last visited Mar. 12, 2023).Show More Fifty-one of those rules each had over $100 million in economic effects.10 10.Bernardo Zacka, When the State Meets the Street 9 (2017).Show More Agencies are also responsible for regulating and administrating important programs, such as Medicaid, Medicare, Social Security, and the Veterans Health Administration, that directly affect the lives of millions. Bureaucrats make crucial decisions that govern citizens across the country, including deciding who is eligible for public services and how much of these services they will receive.11 11.K. Sabeel Rahman, Democracy Against Domination 144 (2016) (“[A]gencies are, in practice, the primary sites of policymaking, giving specificity and concreteness to broad legislative directives.”).Show More In short, agencies are the primary site of policymaking in contemporary democratic governance.12 12.Normative legitimacy is also called “moral legitimacy.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–802 (2005).Show More

Do people who disagree with agency decisions still have moral duties to obey those actions? This is a question of normative legitimacy, which determines whether people have moral obligations to follow agency actions.13 13.Descriptive legitimacy is also called “sociological legitimacy.”Show More Normative legitimacy is different from descriptive legitimacy, which describes why people subjectively believe they should follow agency actions.14 14.Id.Show More It is also different from legality: whether rules are validly generated through the rule-generating conventions of a polity.15 15.This definition is derived from John Rawls. John Rawls, Political Liberalism 224–26 (expanded ed. 2005) [hereinafter Rawls, Political Liberalism].Show More Normative legitimacy requires the justification of agency power over citizens and organizations such that these persons have a moral duty to comply with agency actions, even if they disagree with particular agency decisions.16 16.See infra Part II.Show More Legal commentators have previously proposed multiple theories to legitimate administrative agencies. Although these previous theories are intuitively attractive, they all run into well-known problems.17 17.See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 355 (2014) (“[C]an the Secretary of the Department of Agriculture legislate? He is not a representative body, let alone the constitutionally established representative body. So how can he be assumed to legislate with consent of the people? And if without their consent . . . how can his commands have any legal obligation?”); R. Shep Melnick, The Transformation of Title IX 251 (2018) (criticizing court-agency “leapfrogging” that incrementally increases agencies’ authority without requiring them to accumulate evidence, experience, or public input); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) (arguing that the post-New Deal administrative state is unconstitutional); see also Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 8–33 (2017) (discussing the recent attacks on the administrative state).Show More

The inability of lawyers and legal scholars to normatively legitimate agencies has led to fierce criticism that agencies conflict with our democratic government;18 18.See, e.g., Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (stating that the major questions and nondelegation doctrines prevent “government by bureaucracy supplanting government by the people” (quoting Antonin Scalia, A Note on the Benzene Case, 4 Regulation 25, 27 (July/Aug. 1980))); Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring) (referring to “an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 108 (2015) (Alito, J., concurring in part) (describing a U.S. Court of Appeals for the D.C. Circuit procedural innovation as “prompted by an understandable concern about the aggrandizement of the power of administrative agencies”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”).Show More a view that is increasingly gaining traction on the Supreme Court.19 19.140 S. Ct. 2183, 2207 (2020).Show More In his recent majority opinion in Seila Law LLC v. Consumer Financial Protection Bureau ruling that the structure of the Consumer Financial Protection Bureau (“CFPB”) violated the separation of powers,20 20.Id. at 2200.Show More Chief Justice Roberts wrote that the liberty of the citizenry was threatened by the Bureau’s independent director because the CFPB Director could “bring the coercive power of the state to bear on millions of private citizens and businesses.”21 21.See supra note 19.Show More Other Justices have echoed the Chief Justice’s concern in multiple recent administrative law cases.22 22.See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1758–66 (2007) (discussing shifts in administrative law doctrine as courts have shifted their operating theories of administrative legitimacy over the twentieth century).Show More

The longstanding inability to legitimate the administrative state has caused sweeping changes to administrative law as scholars and judges have searched for a theory to justify and structure agency policymaking.23 23.See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 268 (2018) (“[C]ourts have not developed a coherent theory as to what an interpretive rule is.”); Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1065–66 (1995) (“[T]he arbitrary and capricious standard is relatively open-ended, and the Supreme Court has not given it more precise content.”); Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721, 750, 751 n.116 (2014) (noting “the apparent difficulty experienced by the Court in articulating a consistent, coherent framework for explaining its reasoning” during hard look review).Show More The accumulation of these doctrinal changes over time has caused multiple areas of administrative law, including arbitrariness review and agency use of the Administrative Procedure Act’s (“APA”) exceptions to notice-and-comment rulemaking, to lack coherent organizing principles.24 24.See infra Subsection IV.A.2.ii (discussing persistent circuit splits and courts failing to provide a rule in cases regarding whether agencies correctly utilized APA exceptions to notice-and-comment).Show More At worst, these doctrinal shifts have led to persistent circuit splits and left courts confused when attempting to determine the governing rules for the cases before them.25 25.See Metzger, supra note 18, at 7 (arguing that the administrative state promotes good government and constrains executive power); Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2487–88 (2017) (endorsing a “pluralist” approach to legitimizing the administrative state and criticizing various “independence” theories); Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 44 (claiming that the administrative state provides benefits like government efficiency, coordinated policymaking, and energetic execution of the laws).Show More

While supporters of contemporary administrative governance have recently defended it on legal and policy grounds,26 26.See Blake Emerson, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory, 73 Hastings L.J. 371, 375 (2022) [hereinafter Emerson, Liberty and Democracy Through the Administrative State] (“The Court’s most vocal defenders of the administrative state, Justice Kagan and Justice Breyer, tend to wave away the conservatives’ high-altitude critique of the regulatory state.”); see also Vermeule, supra note 26, at 2463 (focusing on the descriptive legitimacy of the administrative state); Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 3 n.5 (2020) (focusing on the legal legitimacy of the administrative state). But see Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 165–75 (2019) [hereinafter Emerson, The Public’s Law] (arguing for a democratization of agency policymaking partly on legitimacy grounds).Show More they have largely not addressed critics’ attacks on the normative legitimacy of the administrative state.27 27.See Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265, 271–72 (2019) (forgoing federal administrative legitimacy and looking to state administrative institutions for legitimacy); Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 989 (1997) (arguing there is no unified theory of democratic legitimation of the administrative state); Mark Seidenfeld, The Quixotic Quest for a “Unified” Theory of the Administrative State, in Issues in Legal Scholarship, 2005, at 15 (same); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1381 (1984) (same).Show More The theoretical task is so daunting that some supporters of administrative governance argue that we should give up looking for a theory of normative administrative legitimacy.28 28.Camilla Stivers, Governance in Dark Times: Practical Philosophy for Public Service 10–11 (2008).Show More

This concession is a mistake. The Chief Justice in Seila Law is correct to worry about the power of administrative agencies because they exert vast powers over citizens and organizations in our society.29 29.See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 811 (2014) (arguing that administrative law has been dominated by concerns about democratic control of agencies by Congress or the President); Peter L. Strauss, Legislation That Isn’t—Attending to Rulemaking’s “Democracy Deficit”, 98 Calif. L. Rev. 1351, 1357 (2010) (arguing that agency discretion is legitimated by judicial review).Show More Administrative power must be legitimated on normative grounds in democratic governance. The question is whether supporters of administrative governance can rise to this challenge to answer the Justices’ concerns. This Article addresses the concerns of the Chief Justice and recent critics head-on to generate a theory of administrative legitimacy that gives the administrative state a proper place in our democratic government.

Most previous theories of administrative legitimacy attempted to legitimate agencies through a “derivative” method of legitimacy, linking agencies to other institutions, such as Congress, the president, or courts.30 30.See infra Section II.E.Show More While intuitively appealing, legitimating agencies through other institutions runs into problems due to the distinctive structure and function of agencies.31 31.Richard Stewart’s interest representation and Mark Seidenfeld’s civic republicanism are two notable exceptions. See infra Section II.D (critiquing civic republicanism); see infra Subsection III.A.1 (critiquing interest group representation). More recently, a few scholars, such as Blake Emerson, Sabeel Rahman, and Dan Walters, have also focused their analysis on agency structure and process. See infra Section III.D (discussing these recent theories).Show More Instead, this Article develops a “direct” theory of legitimacy that legitimates the administrative state on its own terms. Interestingly, one intuition underlying previous derivative theories is the belief that linking agencies to other institutions can indirectly connect agencies to citizens. Therefore, a promising route to directly legitimate agencies is to cut out the middle institution and focus on the structure of the actual relationship between agencies and citizens.

Surprisingly, lawyers and scholars have spent little time theoretically analyzing the direct relationships between agencies and persons when theorizing about the legitimacy of the administrative state.32 32.See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1607–09 (2023); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Regul. 165, 191–200 (2019).Show More This being said, recent empirical work has highlighted the role that deeply embedded relationships between agency officials and persons serve to substantiate important administrative values, such as agency effectiveness and democratic accountability, in practice.33 33.See infra Section III.C.Show More The importance of the relationships between agencies and persons to our administrative state demands proper theorization.

This Article develops the theory of relational fairness to normatively legitimate administrative governance as part of our democratic government. Relational fairness states that all persons potentially affected by an agency action must have the opportunity to deliberate with the agency during administrative decision-making.34 34.See infra Subsection III.C.3.Show More The theory reveals that agencies stand in different normative relationships with persons based on whether a person is potentially affected by a prospective agency action. Relational fairness articulates how the administrative state itself should be structured to attain normative legitimacy based on its own relationships with members of civil society, rather than derivatively through its connections to other institutions.

Relational fairness contains three components: procedural values, relational values, and substantive safeguards. The theory begins with familiar procedural values to structure agency deliberation with affected parties as open, voluntary, equal in access, and ongoing. It continues with substantive safeguards that limit the potential results of agency deliberations according to certain constitutional and deliberative requirements. However, relational fairness departs from existing theories by shaping the interpersonal relations between agencies and affected persons on the grounds of equal status, respect, and good faith. Practically, including relational values in the theory allows relational fairness to address persistent political inequalities between persons in administrative policymaking that procedural and substantive reforms alone cannot solve.35 35.See infra Part IV.Show More

Although some courts have implicitly embraced relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state.36 36.See infra Subsection IV.A.1.Show More Importantly, relational fairness organizes the various parts of arbitrariness review based on whether a regulation is “arbitrary and capricious” from the perspective of affected persons. Surprisingly, focusing on the perspective of affected persons provides both justification and content for a deferential form of arbitrariness review that leaves less room for judges to insert their own ideological beliefs during judicial review.37 37.See infra Subsection IV.A.2.Show More

Relational fairness also demonstrates that the growing movement to improve administrative governance through a focus on internal administrative law has been hitherto blind to the profound effect that internal agency rules can have on the relationship between agencies and affected parties.38 38.See infra Subsection IV.B.1.Show More The doctrines of ex parte communications and the APA exceptions to informal rulemaking demonstrate this tension between relational fairness and internal administrative law. Instead of recent calls to enhance agency power in these areas, relational fairness advocates that Congress should require agency disclosure of ex parte communications to all affected parties and that federal courts should adopt a unified legal test to review whether agencies validly used an APA exception to notice-and-comment based on whether the agency action in question binds potentially affected parties.

Relational fairness reconceptualizes the value of public participation in administrative law.39 39.See infra Subsection IV.B.1.Show More The theory argues that members of civil society stand in distinct normative relationships with agencies, which should inform how we structure public participation during agency policymaking. When we view participation in this light, notice-and-comment rulemaking appears deficient on legitimacy grounds because of the political inequalities it generates for marginalized and geographically dispersed affected persons.40 40.See infra Subsections IV.B.2, IV.B.3.Show More Some congressional and agency reforms to notice-and-comment, such as negotiated rulemaking, serve as helpful guides to improve informal rulemaking, while others, such as most e-rulemaking efforts, fail to eliminate the problems in notice-and-comment.41 41.See infra Section I.B.Show More

Relational fairness resolves multiple problems endemic to administrative law. These problems include the ability of agencies to generate moral obligations on citizens to follow agency rules, the tension between democracy and administration, and the mood of agency distrust that permeates administrative law.footnote_id_43_42 Relational fairness responds to Chief Justice Roberts and others concerned with agency power over citizens by showing how to properly structure the direct relationship between agencies and the persons they govern to legitimate agency power to govern. By normatively legitimating the administrative state, relational fairness allows agencies to take their place as part of our democratic government.

This Article unfolds as follows. Part I demonstrates the legal importance of normatively legitimating the administrative state and begins to construct a theory of administrative legitimacy. Part II contends that although previously proposed theories of administrative legitimacy are intuitively appealing, they each run into problems. Instead of seeking a pluralistic account of legitimacy that combines these theories, this Part identifies their underlying similarities to shape an alternative theory based on the direct relationship between agencies and persons. Part III creates the theory of relational fairness, which legitimates the administrative state from the bottom up by properly structuring the direct relationship between agencies and citizens based on the distinctive institutional features of agencies. Importantly, relational fairness can legitimate agencies as part of our democratic government once we embrace a conception of democratic participation that moves beyond merely viewing elections as sufficient for democratic governance.

Part IV discusses how some courts have already implicitly embraced relational fairness and demonstrates how to fully implement the theory in order to improve the legitimacy of the American administrative state. This Part explains how relational fairness should guide reform in multiple areas of administrative law, including arbitrariness review, ex parte communications, and the APA exceptions to informal rulemaking. It also argues that notice-and-comment rulemaking is deficient on legitimacy grounds and proposes potential reforms to improve the legitimacy of informal rulemaking. Part V rebuts three criticisms to applying relational fairness: inefficiency, regulatory capture, and the implementation of the theory.

  1.  See, e.g., James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government 6 (1978) (discussing the longstanding crisis of legitimacy surrounding the administrative state); James M. Landis, The Administrative Process 1 (1938) (discussing how the administrative state can improve modern governance); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2383–84 (2001) (endorsing the trend toward greater presidential control over administrative agencies); Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1515 (1992) (arguing that civic republican theory provides legitimacy for the administrative state); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1767, 1802 (1975) (arguing against the ability of the interest representation theory to legitimate the administrative state). ↑

  2.  Michael P. Vandenbergh, The Private Life of Public Law, 105 Colum. L. Rev. 2029, 2035 (2005) (“Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear.”). ↑

  3.  U.S. Const. art. III. The Constitution does mention “[d]epartments” in the Opinions Clause, so the Framers perhaps contemplated the existence of some type of agency. Id. art. II, § 2, cl. 1. However, there is no substantive discussion of the form or structure such institutions should take. ↑

  4.  Edward H. Stiglitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 635 (2018) (“The administrative state is an awkward creature in our constitutional system—in the eyes of many, an unseemly chimera . . . .”). ↑

  5.  Administrative Procedure Act, 5 U.S.C. §§ 553–554. Some administrative action falls under the Take Care Clause. U.S. Const. art. II, § 3. The constitutional derivation of the independent agency and “mixed” agencies, which perform both rulemaking and adjudication, is more complicated. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (holding that the President has limited removal power over agency officials acting in a “quasi-legislative and quasi-judicial” capacity). ↑

  6.  “Administrative state” comprises the group of political institutions in government not located in Congress or the Executive Office that therefore have some insulation from these branches. This being said, as Datla and Revesz show, the level of agency independence from the branches is a matter of degree and not a binary variable. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772–73 (2013). “The administrative state” is commonly used to describe the post-New Deal conglomeration of independent and executive agencies and has its origin in nineteenth-century French and German writings on administration (“1’état administratif” and “die verwaltungsstaat,” respectively). Mark Rutgers, Beyond Woodrow Wilson: The Identity of the Study of Public Administration in Historical Perspective, 29 Admin. & Soc’y 276, 285–90 (1997); see also Dwight Waldo, The Administrative State (1948) (popularizing the term “the administrative state” to American audiences). ↑

  7.  For examples, see infra note 18. ↑

  8.  Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382, 385 (2011) [hereinafter Farina et al., Rulemaking in 140 Characters]. ↑

  9.  John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law and Economics 38 (Francesco Parisi ed., 2017). ↑

  10.  Regulatory Information Database, U.S. Gen. Servs. Admin., https://www.reginfo.gov [https://perma.cc/7VVD-2U6Z] (last visited Mar. 12, 2023). ↑

  11.  Bernardo Zacka, When the State Meets the Street 9 (2017). ↑

  12.  K. Sabeel Rahman, Democracy Against Domination 144 (2016) (“[A]gencies are, in practice, the primary sites of policymaking, giving specificity and concreteness to broad legislative directives.”). ↑

  13.  Normative legitimacy is also called “moral legitimacy.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–802 (2005). ↑

  14.  Descriptive legitimacy is also called “sociological legitimacy.” ↑

  15.  Id. ↑

  16.  This definition is derived from John Rawls. John Rawls, Political Liberalism 224–26 (expanded ed. 2005) [hereinafter Rawls, Political Liberalism]. ↑

  17.  See infra Part II. ↑

  18.  See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 355 (2014) (“[C]an the Secretary of the Department of Agriculture legislate? He is not a representative body, let alone the constitutionally established representative body. So how can he be assumed to legislate with consent of the people? And if without their consent . . . how can his commands have any legal obligation?”); R. Shep Melnick, The Transformation of Title IX 251 (2018) (criticizing court-agency “leapfrogging” that incrementally increases agencies’ authority without requiring them to accumulate evidence, experience, or public input); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) (arguing that the post-New Deal administrative state is unconstitutional); see also Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 8–33 (2017) (discussing the recent attacks on the administrative state). ↑

  19.  See, e.g., Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (stating that the major questions and nondelegation doctrines prevent “government by bureaucracy supplanting government by the people” (quoting Antonin Scalia, A Note on the Benzene Case, 4 Regulation 25, 27 (July/Aug. 1980))); Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring) (referring to “an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 108 (2015) (Alito, J., concurring in part) (describing a U.S. Court of Appeals for the D.C. Circuit procedural innovation as “prompted by an understandable concern about the aggrandizement of the power of administrative agencies”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”). ↑

  20.  140 S. Ct. 2183, 2207 (2020). ↑

  21.  Id. at 2200. ↑

  22.  See supra note 19. ↑

  23.  See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1758–66 (2007) (discussing shifts in administrative law doctrine as courts have shifted their operating theories of administrative legitimacy over the twentieth century). ↑

  24.  See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 268 (2018) (“[C]ourts have not developed a coherent theory as to what an interpretive rule is.”); Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1065–66 (1995) (“[T]he arbitrary and capricious standard is relatively open-ended, and the Supreme Court has not given it more precise content.”); Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721, 750, 751 n.116 (2014) (noting “the apparent difficulty experienced by the Court in articulating a consistent, coherent framework for explaining its reasoning” during hard look review). ↑

  25.  See infra Subsection IV.A.2.ii (discussing persistent circuit splits and courts failing to provide a rule in cases regarding whether agencies correctly utilized APA exceptions to notice-and-comment). ↑

  26.  See Metzger, supra note 18, at 7 (arguing that the administrative state promotes good government and constrains executive power); Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2487–88 (2017) (endorsing a “pluralist” approach to legitimizing the administrative state and criticizing various “independence” theories); Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 44 (claiming that the administrative state provides benefits like government efficiency, coordinated policymaking, and energetic execution of the laws). ↑

  27.  See Blake Emerson, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory, 73 Hastings L.J. 371, 375 (2022) [hereinafter Emerson, Liberty and Democracy Through the Administrative State] (“The Court’s most vocal defenders of the administrative state, Justice Kagan and Justice Breyer, tend to wave away the conservatives’ high-altitude critique of the regulatory state.”); see also Vermeule, supra note 26, at 2463 (focusing on the descriptive legitimacy of the administrative state); Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 3 n.5 (2020) (focusing on the legal legitimacy of the administrative state). But see Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 165–75 (2019) [hereinafter Emerson, The Public’s Law] (arguing for a democratization of agency policymaking partly on legitimacy grounds). ↑

  28.  See Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265, 271–72 (2019) (forgoing federal administrative legitimacy and looking to state administrative institutions for legitimacy); Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 989 (1997) (arguing there is no unified theory of democratic legitimation of the administrative state); Mark Seidenfeld, The Quixotic Quest for a “Unified” Theory of the Administrative State, in Issues in Legal Scholarship, 2005, at 15 (same); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1381 (1984) (same). ↑

  29.  Camilla Stivers, Governance in Dark Times: Practical Philosophy for Public Service 10–11 (2008). ↑

  30.  See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 811 (2014) (arguing that administrative law has been dominated by concerns about democratic control of agencies by Congress or the President); Peter L. Strauss, Legislation That Isn’t—Attending to Rulemaking’s “Democracy Deficit”, 98 Calif. L. Rev. 1351, 1357 (2010) (arguing that agency discretion is legitimated by judicial review). ↑

  31.  See infra Section II.E. ↑

  32.  Richard Stewart’s interest representation and Mark Seidenfeld’s civic republicanism are two notable exceptions. See infra Section II.D (critiquing civic republicanism); see infra Subsection III.A.1 (critiquing interest group representation). More recently, a few scholars, such as Blake Emerson, Sabeel Rahman, and Dan Walters, have also focused their analysis on agency structure and process. See infra Section III.D (discussing these recent theories). ↑

  33.  See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1607–09 (2023); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Regul. 165, 191–200 (2019). ↑

  34.  See infra Section III.C. ↑

  35.  See infra Subsection III.C.3. ↑

  36.  See infra Part IV. ↑

  37.  See infra Subsection IV.A.1. ↑

  38.  See infra Subsection IV.A.2. ↑

  39.  See infra Subsection IV.B.1. ↑

  40.  See infra Subsection IV.B.1. ↑

  41.  See infra Subsections IV.B.2, IV.B.3. ↑

  42.  See infra Section I.B. ↑

Judicial Minimalism in the Lower Courts

Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, which have become conspicuous and powerful actors on the public law scene. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which counsels judges to avail themselves of various techniques of not deciding cases (the so-called “passive virtues”) on grounds of prudence; and Thayerian minimalism, which counsels judges to refrain from invalidating the actions of the political branches except in cases of clear illegality. This Article then argues that several institutional features of lower courts make judicial minimalism in most of its forms a particularly compelling ideal for lower court judges. Further, attending to the differences between the lower courts and the Supreme Court reveals that minimalism is in tension with the institutional logic of the Supreme Court. In all, this Article aims both to clarify the concept of minimalism and to place it in its proper institutional home. After making the case for lower court minimalism, this Article proposes some strategies for realizing it: first, developing a concept of judicial role fidelity that is tailored to the institutional realities of lower courts, and second, reforming case-assignment rules, nationwide injunctions, and the size of the federal bench to help channel lower courts toward more minimalist outcomes.

Introduction

The lower federal courts are active and conspicuous these days. “[I]nferior” Article III courts (as the Constitution calls them1 1.U.S. Const. art. III, § 1.Show More) have “now assumed enormous legal, political, and cultural significance.”2 2.Henry P. Monaghan, Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, 69 Duke L.J. 1, 32 (2019). The present salience of lower federal courts may not be historically unprecedented. One thinks, for instance, of the lower courts as a focal point in the fight over federalism in the early Republic, Alison L. LaCroix, The Ideological Origins of American Federalism 179 (2010); of lower court enforcement of the fugitive slave laws, Robert Cover, Justice Accused: Antislavery and the Judicial Process 159–74 (1975); or of lower courts issuing injunctions against organized labor in the Progressive Era, William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109, 1148–65 (1989).Show More They have repeatedly reviewed and halted major initiatives of the Trump and Biden Administrations,3 3.SeeBert I. Huang, Judicial Credibility, 61 Wm. & Mary L. Rev. 1053, 1060 (2020) (noting that the Trump era was “a political moment when numerous government actions [were] being blocked by the lower federal courts”); Fred Barbash, Deanna Paul, Brittany Renee Mayes & Danielle Rindler, Federal Courts Have Ruled Against Trump Administration Policies at Least 70 Times, Wash. Post (Apr. 26, 2019), https://www.washingtonpost.com/graphi​cs/2019/politic​s/trump-overruled/ [https://perma.cc/MR8E-WMTX] (“All administrations lose cases, but experts cannot recall so many losses in such a short time.”); Ian Millhiser, Just How Much Is Trump’s Judiciary Sabotaging the Biden Presidency?, Vox (Dec. 27, 2021) (on file with editors), https://www.​vox.com/22820378/trump-biden-supreme-court-judiciary-sabotage.Show More often generating front-page headlines and issuing decisive nationwide relief that reshapes American life.4 4.E.g., Michael D. Shear, Stacy Cowley & Alan Rappeport, Biden’s Efforts at Race Equity Run into Snags, N.Y. Times, June 27, 2021, at A1; Alexander Burns, Federal Judge Blocks New Ban on Travel to U.S., N.Y. Times, Mar. 16, 2017, at A1. I represented the plaintiffs in the second of these cases, culminating in Trump v. Hawaii, 138 S. Ct. 2392 (2018). The views expressed in this Article are my own.Show More In the process, they have decided—at least provisionally—major questions roiling the nation, involving everything from abortion to race, religious freedom, public health, immigration, and presidential power. It is an opportune time to reflect on the proper role of a lower court judge in a public law case.

One of the most prominent theories addressing that general issue—the proper role of a judge—goes by the label “judicial minimalism.” Minimalism seems to be everywhere: it is deployed in court opinions,5 5.See, e.g.,Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881 (2021) (ruling on narrow, case-specific grounds); id. at 1883 (Barrett, J., concurring) (defending this narrow disposition); id. at 1887–88 (Alito, J., concurring in the judgment) (criticizing the majority’s narrow disposition). I represented the City of Philadelphia in the Supreme Court in Fulton. Again, the positions taken here are mine.Show More theorized in the legal academy,6 6.See infraPart I.Show More and debated in the commentariat.7 7.E.g., David Cole, Surprising Consensus at the Supreme Court, N.Y. Rev. of Books (July 7, 2021), https://www.nybooks.com/articles/2021/08/19/surprising-consensus-at-the-supreme​-court/ [https://perma.cc/2VZH-9GDU] (discussing “minimalism” in the Supreme Court’s recently concluded Term); Jay Michaelson, Your Father’s Supreme Court, Intelligencer, N.Y. Mag. (July 3, 2021) (on file with editors), https://nymag.com/intelligencer/2021/07/your-fathers-supreme-court.ht​ml (same).Show More It is a “dominant school of thought” today, with deep roots in our legal culture.8 8.Jonathan T. Molot, Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles, 90 Va. L. Rev. 1753, 1776 (2004); Neal Devins, Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government, 69 Vand. L. Rev. 935, 938–39 (2016) (“Minimalism remains vibrant and is almost certainly the most important contemporary constitutional theory that formally takes into account the dynamic between the Supreme Court and elected government.”).Show More Eminences like James Bradley Thayer, Oliver Wendell Holmes, Alexander Bickel, Ruth Bader Ginsburg, and Cass Sunstein, to name only a few, have embraced variants of minimalism.9 9.See infraPart I.Show More

To date, however, debates about lower court judging and debates about minimalism have rarely intersected. The bulging literature on judicial minimalism has focused on the Supreme Court of the United States. Minimalism developed and has been offered as a philosophy for Justices, not judges. As far as I am aware, no one has systematically considered whether judicial minimalism makes sense as a model for lower court judges, who handle the vast bulk of Article III adjudication.10 10.See Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. App. Prac. & Process 91, 93 (2006) (noting that “the eighty cases that the Supreme Court hears annually represent the small tip of a vast iceberg” and that “most determinative legal interpretations occur instead in the federal courts of appeals, in the state supreme courts, and in state appellate courts”); Sanford Levinson, On Positivism and Potted Plants: Inferior Judges and the Task of Constitutional Interpretation, 25 Conn. L. Rev. 843, 844 (1993) (“The behavior of the roughly 100 circuit judges and 500 district judges is, for most citizens most of the time, far more likely to count as ‘the law’ than the pronouncements of the nine denizens of the Supreme Court . . . .”).Show More

This Article takes up that question and answers yes: the institutional situation of lower courts makes judicial minimalism in most of its forms a particularly compelling model for a lower court judge. Substantiating that claim requires a few steps. The first is to define what judicial minimalism is and unpack why it has been defended, and so this Article begins by offering a framework that disentangles the three core meanings of judicial minimalism. Next, this Article walks through the institutional features of lower courts that distinguish them from the Supreme Court and explores how those features bear upon the judicial role. I argue that, taken together, those features counsel in favor of an approach to judging that coincides closely with the program of judicial minimalism. The call for institutional “situation-sense” that motivates this Article yields more than just a prescription for lower courts. Attending to the full context of the judicial system calls into question judicial minimalism as an ideal for the Supreme Court—the institution it was designed to address. Finally, the Article closes with some proposed reforms to cultivate a measure of minimalism in the lower courts. In a word, I aim to give the concept of judicial minimalism more analytical precision and to place it in its proper institutional home.

Such a project seems timely. As noted, lower courts have become highly visible and powerful actors on the public law scene.11 11.See supranote 2.Show More They are, as a result, starting more and more to attract the notice of theorists and commentators.12 12.See, e.g., Perry Bacon Jr., The Most Dangerous Conservative Judges Aren’t on the Supreme Court, Wash. Post (Dec. 21, 2021), https://www.washingtonpost.com/opinions/20​21/​12/21/most-dangerous-conservative-judges-arent-supreme-court/ [https://perma.cc/J4KJ-VZ​TH].Show More This attention is welcome. The traditional (if often implicit) focus of public law scholarship has been the Supreme Court, and the lower courts, as a result, were often overlooked.13 13.SeeEdward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & Soc. Inquiry 679, 681 (1999) (“Our excessive focus on the Supreme Court . . . has over the years minimized and obscured large areas of American experience . . . .”);Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 4 (1994) (“[W]hile numerous scholars have comprehensively explored the nature and function of judicial law declaration from the perspective of the Supreme Court or a hypothetical single-judge judiciary, few have considered the view from below and the interaction between subordinacy and function.”).Show More In recent years, though, scholars have paid increasing heed to the variety of institutions that consider and decide questions of public law.14 14.SeeCass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 920–22 (2003). Of course, at a high level of generality, legal scholarship had been preoccupied with institutional questions since at least the legal process school, seeEdward L. Rubin, The New Legal Process, The Synthesis of Discourse, and the Microanalysis of Institutions, 109 Harv. L. Rev. 1393, 1396 (1996), but Professors Sunstein and Vermeule called for a more rigorously empirical and less stylized approach to institutional analysis. Sunstein & Vermeule, supra, at 897–913.Show More The core contention of this “institutional turn” is that normative theory about legal decision making ought to be bespoke, tailored to the manifold institutional settings in which questions of public law are resolved.15 15.Sunstein & Vermeule, supra note 14, at 886.Show More The study of lower courts has been a beneficiary of this institutional turn: recent scholarship has examined originalism,16 16.See Ryan C. Williams, Lower Court Originalism, 45 Harv. J.L. & Pub. Pol’y 257 (2022).Show More popular constitutionalism,17 17.Katie Eyer, Lower Court Popular Constitutionalism, 123 Yale L.J. Online 197, 215–18 (2013).Show More statutory interpretation,18 18.James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 686 (2017); Aaron-Andrew P. Bruhl, Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court, 97 Cornell L. Rev.433, 470–84 (2012).Show More stare decisis,19 19.Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 318 (2005).Show More foreign law,20 20.Roger P. Alford, Lower Courts and Constitutional Comparativism, 77 Fordham L. Rev. 647, 656–64 (2008).Show More Chevron deference,21 21.Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 799–820 (2017) (arguing that the “major questions” exception to Chevron deference should not be applied in lower courts).Show More and other topics in the context of lower federal courts,22 22.Z. Payvand Ahdout, Enforcement Lawmaking and Judicial Review, 135 Harv. L. Rev. 937, 960–73 (2022) (evaluating lower courts’ use of case management techniques in recent separation-of-powers suits); Richard M. Re, Narrowing Supreme Court Precedent from Below, 104 Geo. L.J. 921, 925 (2016) (arguing that lower courts can legitimately “narrow” Supreme Court precedent in certain circumstances); Doni Gewirtzman, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, 61 Am. U. L. Rev. 457, 506–09 (2012) (viewing lower court decision making through the lens of complexity theory). For a critique of the federal courts of appeals as they currently operate that blends historical, empirical, and normative strands, see generally William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013).Show More to say nothing of state courts.23 23.See David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047, 2064–86 (2011) (exploring how judicial elections for state courts relate to theories of popular constitutionalism); Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1842–76 (2001) (offering a comprehensive survey of justiciability doctrines in state courts); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (exploring the relationship between constitutional theory and “the world of the state courts”).Show More This scholarship has usefully foregrounded the judicial bodies that decide many multiples more cases than the ever-vanishing sliver that makes its way to the Supreme Court.24 24.In the 2020 Term, the Supreme Court issued only fifty-seven decisions in argued cases (and sixty-seven decisions including summary reversals and orders on the shadow docket). Stat Pack for the Supreme Court’s 2020–21 Term, SCOTUSBlog, https://www.scotusblog.co​m/statistics [https://perma.cc/SUY9-X5RD] (last visited May 20, 2022). The federal courts of appeals decide nearly fifty thousand cases per year. Admin. Off. of the U.S. Cts., Table B: U.S. Courts of Appeals––Cases Commenced, Terminated, and Pending During the 12-Month Periods Ending September 30, 2019 and 2020, at 1 (Sept. 30, 2020), https://www.uscourts.gov/sites​/default/files/data_tables/jb_b_0930.2020.pdf [https://perma.cc/U7M2-ESJB].Show More But the void regarding judicial minimalism persists. And, in some ways, minimalism is even more fundamental than these other questions because it goes to the basic attitude a judge should have toward the task of adjudication and so is interwoven with all the first-order interpretive debates just noted.25 25.See infra notes 98–103 and accompanying text.Show More

Judicial minimalism also relates to larger public controversies unfolding now about whether the federal judiciary should be reorganized or limited. Many feel that the judiciary is out of step with the political and legal mainstream.26 26.SeeJonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. (manuscript at 20) (forthcoming 2022), https://papers.ss​rn.com/sol3/papers.cfm?abstract_id=3797051 [https://perma.cc/56BE-6CKF] (noting the pro-Republican structural biases in our method for selecting judges); Joshua P. Zoffer & David Singh Grewal, The Counter-Majoritarian Difficulty of a Minoritarian Judiciary, 11 Calif. L. Rev. Online 437, 454–62 (2020) (documenting the rise of federal judges appointed by Presidents and Senators representing a minority of the populace and the resulting legitimacy crisis in the federal judiciary).Show More Prominent academics have called for major court reforms.27 27.See generally Presidential Comm’n on the Sup. Ct. of the U.S., Final Report(2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.​pdf [https://perma.cc/K69J-T2C8] (summarizing and assessing potential Supreme Court reforms).Show More President Biden appointed a commission to explore, among other things, changing the size of the Supreme Court—a proposal that would have been nearly unthinkable not long ago.28 28.Michael D. Shear & Carl Hulse, Biden Orders Panel’s Review on Expanding Supreme Court, N.Y. Times, Apr. 10, 2021, at A13; cf. David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 34 (2014) (“‘Court packing’ is especially out of bounds.”).Show More Other scholars have objected to the increasingly prevalent “nationwide” injunction.29 29.E.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–65 (2017).Show More Still others have criticized the federal courts for insulating certain forms of structural inequality in American society and have called for a reorientation of public law scholarship toward “institutional reform and democratic action.”30 30.Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynksi & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1807, 1829 (2020).Show More Many of these proposals borrow overtly or implicitly from theories of judicial minimalism—for instance, institutionalizing a norm of deference to the political branches through supermajority voting requirements or limiting courts’ jurisdiction and remedial powers.31 31.See, e.g., Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. 1703, 1727 (2021) (proposing that a supermajority of Justices be required to strike down federal legislation); Howard M. Wasserman, Congress and Universal Injunctions, 2021 Cardozo L. Rev. De Novo 187, 192–201 (discussing various proposals to reform nationwide or “universal” injunctions in Congress); cf. K. Sabeel Rahman, Constitutional Law 101: A Primer for the Law and Political Economy Blog, LPE Project (Nov. 23, 2018), https://lpeproject.org/blog/constitutional-law-101-a-primer-for-the-law-and-political-econom​y-blog-3/ [https://perma.cc/UK7N-BSVU] (“[V]iewed from a political economic lens, the battle for inclusion may sometimes involve judicial intervention, and other times involve judicial minimalism.”).Show More More broadly, these controversies about the judicial power confirm the growing need for public law theorists to grapple with lower courts, who define, as a practical matter, the meaning of federal law for so many people.32 32.See supranotes 10, 24. Indeed, it is even possible that lower court reform could achieve some of the same ends as “packing” the Supreme Court. See McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. Cal. L. Rev. 1631, 1634 (1995) (“[U]nder the appropriate circumstances, expansion of the lower judiciary can have the same effect on judicial doctrine as packing the Supreme Court.”).Show More

This Article has three Parts. Judicial minimalism is a woolly concept that is often invoked to mean different and even contradictory things. Part I offers a novel typology of judicial minimalisms to set the analytical table for the rest of the discussion. As a preview, judicial minimalism has three core senses: first, decisional minimalism, associated most closely with Professor Cass Sunstein,33 33.Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 3–6 (1999) [hereinafter Sunstein, One Case at a Time]; Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 6–10 (1996) [hereinafter Sunstein, Leaving Things Undecided].Show More which counsels judges to decide cases on narrow and shallow grounds; second, prudential minimalism, associated most closely with Professor Alexander Bickel,34 34.Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 111–98 (1962) [hereinafter Bickel, Least Dangerous Branch]; Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 47–51 (1961) [hereinafter Bickel, Passive Virtues].Show More which counsels judges to avail themselves of various techniques of not deciding cases (the so-called “passive virtues”) on grounds of prudence; and third, Thayerian minimalism, associated originally with Professor James Bradley Thayer,35 35.James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893).Show More which counsels judges to refrain from invalidating the actions of the political branches except in cases of clear illegality. My focus in this Article is decisional minimalism, but I define the other two forms and consider their applications in lower courts too.

Equipped with this taxonomy, Part II surveys several key institutional features of lower federal courts that distinguish them from the Supreme Court and evaluates how these features might affect the proper judicial role.36 36.This Article is confined to the federal district courts and courts of appeals. There is much greater institutional variety among state courts than there is among lower federal courts, and that variety would have to inform any analysis of minimalism in those venues. Judicial elections, in particular, would affect the democracy-based justifications for minimalism. See Pozen, supranote 23, at 2052 (“Elected judges . . . might claim a special license to incorporate public opinion into their decisional process, to engage in majoritarian review.”); Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022) (manuscript at 5–14), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=4016573 [https://perma.cc/WWC6-P82S] (laying out similarities and differences between state and federal courts). Nor will I discuss minimalism for so-called “Article I” judges or administrative agencies. See Laura K. Donohue & Jeremy McCabe, Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)/I(8)(3), and Art. II(1) Adjudication, 71 Cath. U. L. Rev. (forthcoming 2022) (manuscript at 3–5), https://papers.ssrn.com/sol3/papers.cfm?abst​ract_id=3825670 [https://perma.cc/4ZVH-XHJY] (discussing the full range of congressionally created courts); Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 56–77 (2011) (discussing a form of “minimalism” in agency policymaking).Show More The variables include docket size and judicial workload, the operative rules of stare decisis, the assignment of judges, the methods of case selection, and the processes of judicial appointment. I argue that the differences between lower courts and the Supreme Court along these lines make judicial minimalism in most of its forms a more compelling ideal in the lower courts.37 37.My focus is public law cases, particularly constitutional and administrative law. See Hanoch Dagan & Benjamin C. Zipursky, Introduction: The Distinction Between Private Law and Public Law, in Research Handbook on Private Law Theory1, 3 (Benjamin C. Zipursky & Hanoch Dagan eds., 2020). Private law in lower federal courts is complicated by Erie Railroad Co. v. Tompkins and the frequent primacy of state law. See 304 U.S. 64, 78 (1938). That said, decisional minimalism is a framework that is potentially applicable in any case, and this Article may very well have implications for federalized areas of private law like intellectual property, antitrust, or labor law. Cf.Shyamkrishna Balganesh, The Pragmatic Incrementalism of Common Law Intellectual Property, 63 Vand. L. Rev. 1543, 1564–67 (2010) (defending a minimalist approach to intellectual property disputes). But my normative prescriptions will probably have the most bite in prominent public law cases because that is where non-minimalist decisions will be rewarded most in our current partisan ecosystem. See infranotes 42, 375.Show More The differences also reveal that decisional minimalism is in deep tension with the institutional logic of the Supreme Court in its present form. The Court’s near-total control over its agenda, its own stated criteria for granting certiorari, its limited case load, and its structural role as a superintendent of federal law through rare and episodic interventions all make the modern Court, in an important sense, an inherently anti-minimalist institution.38 38.SeeFrederick Schauer, Abandoning the Guidance Function: Morse v Frederick, 2007 Sup. Ct. Rev. 205, 207–08 (criticizing decisional minimalism for undermining the Court’s “guidance function” in light of its limited case load); Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 Cornell L. Rev. 1, 3 (2009) (arguing that minimalism is in tension with the Constitution, which makes the Supreme Court “supreme” in defining the content of federal law). On the Supreme Court’s extensive powers of agenda control, see Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev.665, 683–711 (2012).Show More

Part III considers how judicial minimalism might be inculcated in lower courts. I begin with the need to develop a distinctive concept of role fidelity for lower court judges fitted to their institutional situation. “Role fidelity” refers to the ways that a judge’s socially conditioned understanding of her role affects the way she fulfills that role.39 39.The concept of judicial “role fidelity” was pioneered by Professor Robert Cover in his study of anti-slavery judges before the Civil War. SeeCover, supranote 2, at 7, 192–93; see also Pozen, supranote 23, at 2084 (defining “role fidelity”).Show More One consequence of the Supreme Court fixation of so much public law scholarship (and pedagogy) is that it tends to flatten concepts of judicial role fidelity.40 40.SeeBarrett, supra note 19, at 352 (“We tend to take a one-size-fits-all approach to federal court decision-making, assuming that the same interpretive practices should apply throughout the federal courts.”).Show More A lower court judge is implicitly encouraged to act like a mini-Justice. But ideals of judicial craft should not be flat.41 41.Pozen, supranote 23, at 2084 (noting the view that “there is no global ideal of judicial craft that exists independent of judicial structure”); Coenen & Davis, supranote 21, at 783 (arguing in favor of “assigning to different types of federal courts differentiated approaches to reviewing government action”) (italicization omitted).Show More And an important element of “role fidelity” for a lower court judge—that can be given life through doctrine, commentary, and the appointment process—is judicial minimalism.

Urging judges to be more minimalist is unlikely to be enough, however, because the current political climate and structure of the lower federal judiciary at times enable and even incentivize non-minimalist behavior by motivated judges.42 42.Professor Suzanna Sherry has observed that Supreme Court Justices increasingly seem to “seek[] the approval of [their] own ideologically-polarized in-group” and that “[j]udicial polarization becomes a larger problem when coupled with the modern trend of declining institutional loyalty.” Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 191–92 (2020). Some recent instances of lower court maximalism suggest that similar forces may be seeping into all levels of the federal judiciary. Cf. Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1437 (2021) (documenting a “dramatic spike in partisan en banc decision-making” in the courts of appeals and suggesting that there “are significant red flags to indicate that longstanding rule-of-law and collegiality norms on the federal bench are eroding”). One virtue of lower court minimalism is that it insists on a kind of judicial craft and humility that could resist the encroachments of polarization in the lower federal judiciary. SeeFrederick Schauer,Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. Cin. L. Rev. 615, 631 (2000) (suggesting that, at least twenty years ago, “prose and craft” might have been more important “determinants of reputation” for lower court judges than substantive outcomes, in contrast to Supreme Court Justices).Show More As a result, some structural reform is also important. I suggest reforming case-assignment rules, requiring the concurrence of more than one judge for nationwide injunctions, and, for reasons that are not entirely intuitive but that I will explain below, expanding the size of the federal bench. This may sound like an ambitious program. But, given that structural reform of the judiciary is on the table right now in a way that it has not been for generations, there is reason to be hopeful.

  1. U.S. Const. art. III, § 1. ↑
  2. Henry P. Monaghan, Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, 69 Duke L.J. 1, 32 (2019). The present salience of lower federal courts may not be historically unprecedented. One thinks, for instance, of the lower courts as a focal point in the fight over federalism in the early Republic, Alison L. LaCroix, The Ideological Origins of American Federalism 179 (2010); of lower court enforcement of the fugitive slave laws, Robert Cover, Justice Accused: Antislavery and the Judicial Process 159–74 (1975); or of lower courts issuing injunctions against organized labor in the Progressive Era, William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109, 1148–65 (1989). ↑
  3. See Bert I. Huang, Judicial Credibility, 61 Wm. & Mary L. Rev. 1053, 1060 (2020) (noting that the Trump era was “a political moment when numerous government actions [were] being blocked by the lower federal courts”); Fred Barbash, Deanna Paul, Brittany Renee Mayes & Danielle Rindler, Federal Courts Have Ruled Against Trump Administration Policies at Least 70 Times, Wash. Post (Apr. 26, 2019), https://www.washingtonpost.com/graphi​cs/2019/politic​s/trump-overruled/ [https://perma.cc/MR8E-WMTX] (“All administrations lose cases, but experts cannot recall so many losses in such a short time.”); Ian Millhiser, Just How Much Is Trump’s Judiciary Sabotaging the Biden Presidency?, Vox (Dec. 27, 2021) (on file with editors), https://www.​vox.com/22820378/trump-biden-supreme-court-judiciary-sabotage. ↑
  4. E.g., Michael D. Shear, Stacy Cowley & Alan Rappeport, Biden’s Efforts at Race Equity Run into Snags, N.Y. Times
    ,

    June 27, 2021, at A1; Alexander Burns, Federal Judge Blocks New Ban on Travel to U.S., N.Y. Times

    ,

    Mar. 16, 2017, at A1. I represented the plaintiffs in the second of these cases, culminating in Trump v. Hawaii, 138 S. Ct. 2392 (2018). The views expressed in this Article are my own. ↑

  5. See, e.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881 (2021) (ruling on narrow, case-specific grounds); id. at 1883 (Barrett, J., concurring) (defending this narrow disposition); id. at 1887–88 (Alito, J., concurring in the judgment) (criticizing the majority’s narrow disposition). I represented the City of Philadelphia in the Supreme Court in Fulton. Again, the positions taken here are mine. ↑
  6. See infra Part I. ↑
  7. E.g., David Cole, Surprising Consensus at the Supreme Court, N.Y. Rev. of Books (July 7, 2021), https://www.nybooks.com/articles/2021/08/19/surprising-consensus-at-the-supreme​-court/ [https://perma.cc/2VZH-9GDU] (discussing “minimalism” in the Supreme Court’s recently concluded Term); Jay Michaelson, Your Father’s Supreme Court, Intelligencer, N.Y. Mag. (July 3, 2021) (on file with editors), https://nymag.com/intelligencer/2021/07/your-fathers-supreme-court.ht​ml (same). ↑
  8. Jonathan T. Molot, Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles, 90 Va. L. Rev. 1753, 1776 (2004); Neal Devins, Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government, 69 Vand. L. Rev. 935, 938–39 (2016) (“Minimalism remains vibrant and is almost certainly the most important contemporary constitutional theory that formally takes into account the dynamic between the Supreme Court and elected government.”). ↑
  9. See infra Part I. ↑
  10. See Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. App. Prac. & Process 91, 93 (2006) (noting that “the eighty cases that the Supreme Court hears annually represent the small tip of a vast iceberg” and that “most determinative legal interpretations occur instead in the federal courts of appeals, in the state supreme courts, and in state appellate courts”); Sanford Levinson, On Positivism and Potted Plants: Inferior Judges and the Task of Constitutional Interpretation, 25 Conn. L. Rev. 843, 844 (1993) (“The behavior of the roughly 100 circuit judges and 500 district judges is, for most citizens most of the time, far more likely to count as ‘the law’ than the pronouncements of the nine denizens of the Supreme Court . . . .”). ↑
  11. See supra note 2. ↑
  12. See, e.g., Perry Bacon Jr., The Most Dangerous Conservative Judges Aren’t on the Supreme Court, Wash. Post (Dec. 21, 2021), https://www.washingtonpost.com/opinions/20​21/​12/21/most-dangerous-conservative-judges-arent-supreme-court/ [https://perma.cc/J4KJ-VZ​TH]. ↑
  13. See Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & Soc. Inquiry 679, 681 (1999) (“Our excessive focus on the Supreme Court . . . has over the years minimized and obscured large areas of American experience . . . .”); Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 4 (1994) (“[W]hile numerous scholars have comprehensively explored the nature and function of judicial law declaration from the perspective of the Supreme Court or a hypothetical single-judge judiciary, few have considered the view from below and the interaction between subordinacy and function.”). ↑
  14. See Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 920–22 (2003). Of course, at a high level of generality, legal scholarship had been preoccupied with institutional questions since at least the legal process school, see Edward L. Rubin, The New Legal Process, The Synthesis of Discourse, and the Microanalysis of Institutions, 109 Harv. L. Rev. 1393, 1396 (1996), but Professors Sunstein and Vermeule called for a more rigorously empirical and less stylized approach to institutional analysis. Sunstein & Vermeule, supra, at 897–913. ↑
  15. Sunstein & Vermeule, supra note 14, at 886. ↑
  16. See Ryan C. Williams, Lower Court Originalism, 45 Harv. J.L. & Pub. Pol’y 257 (2022). ↑
  17. Katie Eyer, Lower Court Popular Constitutionalism, 123 Yale L.J. Online 197, 215–18 (2013). ↑
  18. James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 686 (2017); Aaron-Andrew P. Bruhl, Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court, 97 Cornell L. Rev.

    433, 470–84 (2012). ↑

  19. Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 318 (2005). ↑
  20. Roger P. Alford, Lower Courts and Constitutional Comparativism, 77 Fordham L. Rev. 647, 656–64 (2008). ↑
  21. Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 799–820 (2017) (arguing that the “major questions” exception to Chevron deference should not be applied in lower courts). ↑
  22. Z. Payvand Ahdout, Enforcement Lawmaking and Judicial Review, 135 Harv. L. Rev. 937, 960–73 (2022) (evaluating lower courts’ use of case management techniques in recent separation-of-powers suits); Richard M. Re, Narrowing Supreme Court Precedent from Below, 104 Geo. L.J. 921, 925 (2016) (arguing that lower courts can legitimately “narrow” Supreme Court precedent in certain circumstances); Doni Gewirtzman, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, 61 Am. U. L. Rev. 457, 506–09 (2012) (viewing lower court decision making through the lens of complexity theory). For a critique of the federal courts of appeals as they currently operate that blends historical, empirical, and normative strands, see generally William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013). ↑
  23. See David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047, 2064–86 (2011) (exploring how judicial elections for state courts relate to theories of popular constitutionalism); Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1842–76 (2001) (offering a comprehensive survey of justiciability doctrines in state courts); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (exploring the relationship between constitutional theory and “the world of the state courts”). ↑
  24. In the 2020 Term, the Supreme Court issued only fifty-seven decisions in argued cases (and sixty-seven decisions including summary reversals and orders on the shadow docket). Stat Pack for the Supreme Court’s 2020–21 Term, SCOTUSBlog, https://www.scotusblog.co​m/statistics [https://perma.cc/SUY9-X5RD] (last visited May 20, 2022). The federal courts of appeals decide nearly fifty thousand cases per year. Admin. Off. of the U.S. Cts., Table B: U.S. Courts of Appeals––Cases Commenced, Terminated, and Pending During the 12-Month Periods Ending September 30, 2019 and 2020, at 1 (Sept. 30, 2020), https://www.uscourts.gov/sites​/default/files/data_tables/jb_b_0930.2020.pdf [https://perma.cc/U7M2-ESJB]. ↑
  25. See infra notes 98–103 and accompanying text. ↑
  26. See Jonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. (manuscript at 20) (forthcoming 2022), https://papers.ss​rn.com/sol3/papers.cfm?abstract_id=3797051 [https://perma.cc/56BE-6CKF] (noting the pro-Republican structural biases in our method for selecting judges); Joshua P. Zoffer & David Singh Grewal, The Counter-Majoritarian Difficulty of a Minoritarian Judiciary, 11 Calif. L. Rev. Online 437, 454–62 (2020) (documenting the rise of federal judges appointed by Presidents and Senators representing a minority of the populace and the resulting legitimacy crisis in the federal judiciary). ↑
  27. See generally Presidential Comm’n on the Sup. Ct. of the U.S., Final Report

    (2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.​pdf [https://perma.cc/K69J-T2C8] (summarizing and assessing potential Supreme Court reforms). ↑

  28. Michael D. Shear & Carl Hulse, Biden Orders Panel’s Review on Expanding Supreme Court, N.Y. Times, Apr. 10, 2021, at A13; cf. David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 34 (2014) (“‘Court packing’ is especially out of bounds.”). ↑
  29. E.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–65 (2017). ↑
  30. Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynksi & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1807, 1829 (2020). ↑
  31. See, e.g., Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. 1703, 1727 (2021) (proposing that a supermajority of Justices be required to strike down federal legislation); Howard M. Wasserman, Congress and Universal Injunctions, 2021 Cardozo L. Rev. De Novo 187, 192–201 (discussing various proposals to reform nationwide or “universal” injunctions in Congress); cf. K. Sabeel Rahman, Constitutional Law 101: A Primer for the Law and Political Economy Blog, LPE Project (Nov. 23, 2018), https://lpeproject.org/blog/constitutional-law-101-a-primer-for-the-law-and-political-econom​y-blog-3/ [https://perma.cc/UK7N-BSVU] (“[V]iewed from a political economic lens, the battle for inclusion may sometimes involve judicial intervention, and other times involve judicial minimalism.”). ↑
  32. See supra notes 10, 24. Indeed, it is even possible that lower court reform could achieve some of the same ends as “packing” the Supreme Court. See McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. Cal. L. Rev. 1631, 1634 (1995) (“[U]nder the appropriate circumstances, expansion of the lower judiciary can have the same effect on judicial doctrine as packing the Supreme Court.”). ↑
  33. Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 3–6 (1999) [hereinafter Sunstein, One Case at a Time]; Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 6–10 (1996) [hereinafter Sunstein, Leaving Things Undecided]. ↑
  34. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics
    111–98

    (1962) [hereinafter Bickel, Least Dangerous Branch]; Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 47–51 (1961) [hereinafter Bickel, Passive Virtues]. ↑

  35. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893). ↑
  36. This Article is confined to the federal district courts and courts of appeals. There is much greater institutional variety among state courts than there is among lower federal courts, and that variety would have to inform any analysis of minimalism in those venues. Judicial elections, in particular, would affect the democracy-based justifications for minimalism. See Pozen, supra note 23, at 2052 (“Elected judges . . . might claim a special license to incorporate public opinion into their decisional process, to engage in majoritarian review.”); Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022) (manuscript at 5–14), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=4016573 [https://perma.cc/WWC6-P82S] (laying out similarities and differences between state and federal courts). Nor will I discuss minimalism for so-called “Article I” judges or administrative agencies. See Laura K. Donohue & Jeremy McCabe, Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)/I(8)(3), and Art. II(1) Adjudication, 71 Cath. U. L. Rev. (forthcoming 2022) (manuscript at 3–5), https://papers.ssrn.com/sol3/papers.cfm?abst​ract_id=3825670 [https://perma.cc/4ZVH-XHJY] (discussing the full range of congressionally created courts); Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 56–77 (2011) (discussing a form of “minimalism” in agency policymaking). ↑
  37. My focus is public law cases, particularly constitutional and administrative law. See Hanoch Dagan & Benjamin C. Zipursky, Introduction: The Distinction Between Private Law and Public Law, in Research Handbook on Private Law Theory 1, 3 (Benjamin C. Zipursky & Hanoch Dagan eds., 2020). Private law in lower federal courts is complicated by Erie Railroad Co. v. Tompkins and the frequent primacy of state law. See 304 U.S. 64, 78 (1938). That said, decisional minimalism is a framework that is potentially applicable in any case, and this Article may very well have implications for federalized areas of private law like intellectual property, antitrust, or labor law. Cf. Shyamkrishna Balganesh, The Pragmatic Incrementalism of Common Law Intellectual Property, 63 Vand. L. Rev. 1543, 1564–67 (2010) (defending a minimalist approach to intellectual property disputes). But my normative prescriptions will probably have the most bite in prominent public law cases because that is where non-minimalist decisions will be rewarded most in our current partisan ecosystem. See infra notes 42, 375. ↑
  38. See Frederick Schauer, Abandoning the Guidance Function: Morse v Frederick, 2007 Sup. Ct. Rev. 205, 207–08 (criticizing decisional minimalism for undermining the Court’s “guidance function” in light of its limited case load); Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 Cornell L. Rev. 1, 3 (2009) (arguing that minimalism is in tension with the Constitution, which makes the Supreme Court “supreme” in defining the content of federal law). On the Supreme Court’s extensive powers of agenda control, see Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev.

    665, 683–711 (2012). ↑

  39. The concept of judicial “role fidelity” was pioneered by Professor Robert Cover in his study of anti-slavery judges before the Civil War. See Cover, supra note 2, at 7, 192–93; see also Pozen, supra note 23, at 2084 (defining “role fidelity”). ↑
  40. See Barrett, supra note 19, at 352 (“We tend to take a one-size-fits-all approach to federal court decision-making, assuming that the same interpretive practices should apply throughout the federal courts.”). ↑
  41. Pozen, supra note 23, at 2084 (noting the view that “there is no global ideal of judicial craft that exists independent of judicial structure”); Coenen & Davis, supra note 21, at 783 (arguing in favor of “assigning to different types of federal courts differentiated approaches to reviewing government action”) (italicization omitted). ↑

  42. Professor Suzanna Sherry has observed that Supreme Court Justices increasingly seem to “seek[] the approval of [their] own ideologically-polarized in-group” and that “[j]udicial polarization becomes a larger problem when coupled with the modern trend of declining institutional loyalty.” Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 191–92 (2020). Some recent instances of lower court maximalism suggest that similar forces may be seeping into all levels of the federal judiciary. Cf. Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1437 (2021) (documenting a “dramatic spike in partisan en banc decision-making” in the courts of appeals and suggesting that there “are significant red flags to indicate that longstanding rule-of-law and collegiality norms on the federal bench are eroding”). One virtue of lower court minimalism is that it insists on a kind of judicial craft and humility that could resist the encroachments of polarization in the lower federal judiciary. See Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. Cin. L. Rev. 615, 631 (2000) (suggesting that, at least twenty years ago, “prose and craft” might have been more important “determinants of reputation” for lower court judges than substantive outcomes, in contrast to Supreme Court Justices). ↑

A Modern Poor Debtor’s Oath

Bankruptcy offers a fresh start that frees individuals from crushing debt burdens. Many insolvent Americans are, however, simply too poor to afford bankruptcy. Filing for even the simplest type of bankruptcy costs around $1,800, with most of this money paid to attorneys who help complete more than twenty required forms and schedules. These forms verify that the debtor qualifies for relief and help divide the debtor’s estate among creditors, but for the large majority of debtors, this paperwork is unnecessary because the debtor easily qualifies for relief and has no assets to distribute.

History offers a better model. Two centuries ago, the law granted release from debtor’s prison through the simple execution of a “poor debtor’s oath”—a short declaration that the debtor lacked substantial assets. For most debtors, modern bankruptcy law should require no more than an updated version of a poor debtor’s oath that provides relief unless creditors or their trustees are willing to pay some cost to challenge the oath’s validity. To discourage the wealthy from taking false oaths, Congress could sharply limit the exemptions available in the simplified procedure. Even dramatically smaller exemptions would protect all of the assets of the overwhelming majority of bankrupt debtors. By avoiding costly processes for debtors who obviously qualify for bankruptcy relief, a modern poor debtor’s oath could save hundreds of millions of dollars in transaction costs each year and greatly expand access to bankruptcy.

Introduction

“The principal purpose of the Bankruptcy Code is to grant a fresh start to the honest but unfortunate debtor.”1 1.See Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007) (internal quotation marks and citations omitted).Show More The fresh start offers insurance against adverse events, such as unemployment or illness, that debtors either cannot purchase in the marketplace or will not purchase due to volitional or cognitive failures.2 2.Thomas H. Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 Harv. L. Rev. 1393, 1405–18 (1985).Show More The fresh start also protects a debtor’s friends, family, and acquaintances from the consequences of the debtor’s financial distress. It may even protect the broader economy.3 3.Id. at 1418–24.Show More Insolvent debtors may have little reason to work hard if creditors can seize their earnings.4 4.Id. at 1420–24. For qualifications to this argument, see Richard M. Hynes, Non-Procrustean Bankruptcy, 2004 Univ. Ill. L. Rev. 301, 321–26.Show More

Bankruptcy cannot provide these benefits to debtors who cannot afford to file. Even the simplest form of bankruptcy, Chapter 7, requires more than twenty complex forms and schedules,5 5.For example, in the Central District of California Bankruptcy Courts, at least twenty-seven forms are required to be submitted to the court by Chapter 7 debtors. U.S. Bankr. Ct. for the Cent. Dist. of Cal., Chapter 7 Petition Package (Individual Debtors), 3–6 (Dec. 2020), https://www.cacb.uscourts.gov/sites/cacb/files/documents/forms/Ch7%20IndividualPetitionPackage.pdf [https://perma.cc/JHR2-HMMG].Show More so nearly all debtors hire a lawyer.6 6.Just 6.5% of Chapter 7 debtors file pro se. See infra note 158 and accompanying text.Show More On average, debtors spend more than $1,800 on filing and attorney’s fees.7 7.See Lois R. Lupica, The Consumer Bankruptcy Fee Study: Final Report, Am. Bankr. Inst. 130, tbl.A-6 (Dec. 2011) (listing total direct access costs (attorney’s fees plus filing fees) for no-asset Chapter 7 cases of $1,304 in 2005 dollars). The Bureau of Labor Statistics Inflation calculator converts $1,304 in May of 2005 into $1,806 in May of 2021. CPI Inflation Calculator, U.S. Bureau of Lab. Stat., https://www.bls.gov/data/inflation_calculator.htm [https://perma.cc/33FK-GRDN] (last visited Apr. 3, 2022).Show More These debtors must also pay their attorneys up front because, if the payment were financed, that debt too would be cancelled in bankruptcy. Debtors thus need to “sav[e] up for bankruptcy,”8 8.See, e.g., Ronald J. Mann & Katherine Porter, Saving Up for Bankruptcy, 98 Geo. L.J. 289, 292 (2010). Then-Professor Porter has since been elected to the U.S. House of Representatives.Show More and yet the debtors most in need of bankruptcy are often those who live paycheck-to-paycheck and cannot afford to save up for anything.

Some of the cost of the modern bankruptcy petition is due to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”),9 9.Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (codified in scattered sections of 11 U.S.C.).Show More legislation supported by then-Senator Joe Biden.10 10.151 Cong. Rec. 3, 4351 (2005) (statement of then-Senator Joe Biden) (arguing in favor of the bill’s adoption during debate, concluding that “[a] vote for this bill is a vote to protect family support payments in bankruptcy. That is why I support this bill”).Show More Arguing that some debtors were filing for bankruptcy when they could afford to pay some or all of their debts, creditors successfully lobbied Congress to increase the evidence that debtors must produce when filing.11 11.SeeRobert H. Scott, III, Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: How the Credit Card Industry’s Perseverance Paid Off, 41 J. Econ. Issues 943, 945 (2007).Show More Many consumer advocates, including then-Professor Elizabeth Warren, strongly opposed BAPCPA, arguing that the reforms would unduly raise the cost of filing for the vast majority of debtors who truly deserved relief.12 12.See, e.g., Robert M. Lawless et al., Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors, 82 Am. Bankr. L.J. 349, 362 n.53 (2008).Show More

Now-President Joe Biden has endorsed bankruptcy legislation sponsored by now-Senator Elizabeth Warren.13 13.Katie Glueck & Thomas Kaplan, Biden, Looking to Attract Progressives, Endorses Warren Bankruptcy Plan, N.Y. Times (May 22, 2020), https://www.nytimes.com/2020/03/14​/us/politics/biden-warren-bankruptcy.html [https://perma.cc/Y3V9-YN9Y].Show More With respect to making bankruptcy more accessible,14 14.We express no judgment on other aspects of the reforms, such as making it easier to discharge student debt. Consumer Bankruptcy Reform Act of 2020, S. 4991, 116th Cong. § 101(b)(8) (2020).Show More these reforms do not go far enough. By repealing some of BAPCPA’s requirements, Senator Warren’s reforms may reduce the current cost of filing,15 15.Elizabeth Warren, Fixing Our Bankruptcy System to Give People a Second Chance, Warren Democrats (Jan. 7, 2020), https://elizabethwarren.com/plans/bankruptcy-reform [https://perma.cc/Q529-HMSB].Show More but even before 2005, filing under Chapter 7 still cost consumers around $1,200 (in 2020 dollars).16 16.See Lupica, supra note 7, at 130 tbl.A-6 (reporting total direct costs of $866 in 2005 dollars). Adjusting for inflation, this is roughly $1,199 in 2020 dollars. CPI Inflation Calculator, supra note 7.Show More Warren’s reforms would also allow more debtors to finance their attorney’s fees.17 17.Consumer Bankruptcy Reform Act of 2020, S. 4991, 116th Cong. § 101(b)(4) (2020); Warren, supra note 15.Show More Yet that reform still leaves debtors spending significant sums just to prove an inability to pay their creditors and impedes bankruptcy’s fresh start by immediately saddling individuals emerging from bankruptcy with debt.

The complex forms and schedules required of debtors filing for bankruptcy stand in sharp contrast to the simple notice-filing standards available to creditors, who can file debt collection suits with just “a short and plain statement of the claim.”18 18.See, e.g., Fed. R. Civ. P. 8. Even a plausibility standard requires only that the complaint allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).Show More Of the “eight million debt claims . . . filed [every year,] . . . six million . . . turn into default judgments,”19 19.See, e.g., Yonathan A. Arbel, Adminization: Gatekeeping Consumer Contracts, 71 Vand. L. Rev. 121, 123 (2018).Show More meaning that the plaintiff will never have to produce any evidence.

By going all the way back to the Founding era, one can find an insolvent debtor’s action that matched the simplicity of modern notice filing—the poor debtor’s oath. “Debt was an inescapable fact of life in early America . . . [that] cut across regional, class, and occupational lines. Whether one was an Atlantic merchant or a rural shopkeeper, a tidewater planter or a backwoods farmer, debt was an integral part of daily life.”20 20.Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence 3 (2002).Show More The United States lacked a lasting federal bankruptcy law until the end of the nineteenth century,21 21.Prior to 1898, Congress enacted three bankruptcy acts that together lasted less than twenty years. Congress repealed the Bankruptcy Act of 1800 in 1803, Act of Dec. 19, 1803, ch. 6, 2 Stat. 248, the Bankruptcy Act of 1841 in 1843, Act of Mar. 3, 1843, ch. 82, 5 Stat. 614, and the Bankruptcy Act of 1867 in 1878, Act of June 7, 1878, ch. 160, 20 Stat. 99. For a history of bankruptcy in the United States, see generally David A. Skeel, Jr., Debt’s Dominion: A History of Bankruptcy Law in America (2001) and Charles Jordan Tabb, The History of Bankruptcy Laws in the United States, 3 Am. Bankr. Inst. L. Rev. 5 (1995).Show More and many Founding-era Americans found themselves in debtor’s prison.22 22.See infra notes 52–55 and accompanying text.Show More The poor debtor’s oath was an early reform that freed many debtors from this prison. In contrast to the numerous documents that a modern bankrupt debtor must submit, a federal version of this oath fit into just a few lines: “You solemnly swear (or affirm) that you have not estate, real or personal, nor is any to your knowledge holden in trust for you to the amount or value of twenty dollars, nor sufficient to pay the debt for which you are imprisoned.”23 23.Act of May 5, 1792, ch. 29, § 2, 1 Stat. 265, 266. For other versions of the poor debtor’s oath, see infra note 64 and accompanying text.Show More

Legal historian Bruce Mann suggests that the fact that the poor debtor’s oath was not part of a bankruptcy system explains the oath’s simplicity.

Insolvency and bankruptcy process create procedures for determining creditors’ claims against a debtor and for distributing the debtor’s property among his or her creditors in proportion to their claims. Poor debtor’s oaths offered neither, nor could they when they applied only to debtors with too little property to be worth distributing.24 24.Mann, supra note 20, at 51.Show More

Although modern bankruptcy law has procedures for determining creditors’ claims and distributing the debtor’s property, these procedures are not used in around 95% of consumer Chapter 7 cases because there are no assets to distribute.25 25.See infra Table 1.Show More Well less than 2% of these cases distribute more than $5,000 to unsecured creditors.26 26.See infra notes 129–33 and accompanying text.Show More The Supreme Court of the United States understated matters when it said that the fresh start is bankruptcy’s “principal purpose.”27 27.See Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007).Show More In the overwhelming majority of consumer bankruptcies, the fresh start is bankruptcy’s sole purpose.28 28.Tom Jackson recognized this point when he noted that “[t]he fresh-start policy is thus substantively unrelated to the creditor-oriented distributional rules that give bankruptcy law its general shape and complexity.” Jackson, supra note 2, at 1396.Show More

Bankruptcy’s numerous schedules and other required documents could still play a useful role if they are needed to determine whether a debtor deserves a fresh start. However, because nearly all consumers who file under Chapter 7 receive the same relief—a discharge of debt without forfeiting any assets—a court does not need full disclosure of the specifics of a debtor’s financial condition. The court only needs to know that the debtor’s financial condition is bad enough to qualify for a Chapter 7 discharge without any distribution to unsecured creditors. For many debtors, this purpose can be achieved with a modern version of the poor debtor’s oath. One possible version of this oath based on the current law’s substantive rules would read, “After any exempt property is excluded and administrative expenses are paid, no funds will be available to distribute to unsecured creditors, and my household income is below [median income].”29 29.For a longer discussion of the possible text of this oath, see infra Section III.D.Show More Little more is actually needed from most debtors beyond their identifying information; creditors could learn of the debtor’s filing from the credit bureaus such as Equifax, Experian, and TransUnion.30 30.See infra Section IV.A. Our proposal is similar to Tom Jackson’s suggestion that the fresh start could be tied to a public declaration of insolvency. See Jackson, supra note 2, at 1396 n.8. (“For example, the law might grant discharge through a system of public notice whereby certain assets (such as future wages) would be freed from the claims of existing creditors. The mechanism of public notice would inform creditors of the debtor’s election.”).Show More

Although we call for a modern version of the poor debtor’s oath, we do not envision restricting the oath to the truly destitute. During her tenure as a law professor, Senator Warren and her colleagues persuasively argued that most bankrupt debtors are drawn from the “middle class,”31 31.See, e.g., Teresa A. Sullivan, Elizabeth Warren & Jay Lawrence Westbrook, The Fragile Middle Class: Americans in Debt 2–3 (2000).Show More and in this paper, we demonstrate that the overwhelming majority of bankrupt debtors could rightfully take the above oath. As a result, we will primarily use the less common label for a poor debtor’s oath—an insolvent debtor’s oath.32 32.For others using this phrase, see, for example, Robert A. Feer, Imprisonment for Debt in Massachusetts before 1800, 48 Miss. Valley Hist. Rev. 252, 259 (1961) and Walter H. Moses, Enforcement of Judgments Against Hidden Assets, 1951 U. Ill. L.F. 73, 79.Show More

That so many debtors can rightfully take the oath is partly due to bankruptcy’s current substantive rules. By definition, half of all households earn less than the median income, which makes them automatically pass bankruptcy’s income-based means test,33 33.See infra note 125 and accompanying text.Show More and many states provide exemptions that allow debtors to protect substantial wealth in bankruptcy. For example, twenty states allow debtors to exempt at least $100,000 in home equity,34 34.See infra note 104 and accompanying text.Show More and seven states (and the District of Columbia) have homestead exemptions with no dollar limit.35 35.See infra notes 101–03 and accompanying text.Show More We do not try to justify or reform these substantive rules. Rather, we argue that, given these substantive rules, bankruptcy should use very different procedures.

During the Founding era, an insolvent debtor’s oath shifted the burden of proof to the creditor to show that the debtor actually had assets.36 36.See Feer, supra note 32, at 255 (“The creditors were to be notified of the oath, and if they did not prove within fifty days that it was false, the prisoner was to be freed unless his creditors agreed to pay his weekly board charges.”).Show More However, a modern version could instead serve the same role that notice pleading serves in consumer debt collection—delaying the time when moving parties must present evidence and excusing presentation when their opponents concede or do nothing. Although the plaintiff retains the burden of proof in consumer debt collection, notice pleading shifts some burden to the defendant, who must challenge the complaint and force the plaintiff to provide evidence. If the defendant does nothing, the plaintiff will win a judgment by default. Similarly, creditors or their trustees could challenge an insolvent debtor’s oath and thereby force the debtor to complete the extensive schedules required by existing law. If such challenges are sufficiently costly, creditors will not challenge an oath unless there is a reasonably high probability that the oath was falsely taken. If an oath goes unchallenged, the debtor will receive a discharge by default.37 37.As is true under current law, courts could revoke a discharge if it is found to have been obtained by fraud or if a subsequent audit by the U.S. Trustee suggests revocation is appropriate. See 11 U.S.C. § 727(d); infra notes 165–69 and accompanying text.Show More

Lawsuits and other efforts to pursue a defaulting debtor cost money. Therefore, creditors and debt collectors have developed tools to predict whether debtors are likely to have sufficient assets or income to satisfy their judgments.38 38.See infra Section III.B.Show More We show that these same tools could be used to identify false oaths with a high degree of accuracy.39 39.See infra Section III.BShow More

By discouraging high-asset debtors from falsely taking an insolvent debtor’s oath, the law could reduce the incentive for creditors and trustees to challenge oaths and thereby lessen the administrative burden on those debtors who truly qualify for relief. In the Founding era, this was done by threatening severe punishment for perjury. This threat remains today in the form of bankruptcy fraud. Over time, however, consumers may learn that such a threat is largely empty. In our current system, debtors who make a material misstatement on their bankruptcy petition face more risk of being struck by lightning than being convicted of bankruptcy fraud.40 40.See infra notes 202–06 and accompanying text.Show More

Sharply limiting asset exemptions would more effectively deter wealthy debtors from falsely taking an insolvent debtor’s oath. Such a punishment is unlikely to harm debtors who rightfully take an oath because most debtors have assets that are far below currently available exemptions.41 41.See infra Table 2 and accompanying text.Show More Homestead exemptions can be quite generous. However, over the last decade, roughly 80% of Chapter 7 debtors reported no home equity at all,42 42.See Nathaniel Pattison & Richard M. Hynes, Asset Exemptions and Consumer Bankruptcies: Evidence from Individual Filings, 63 J.L. & Econ. 557, 569 tbl.2 (2020).Show More making the size of the homestead exemption available to them irrelevant.

Part I explores the debtor-creditor law of the Founding era. Although this law was much less generous than modern law, it did provide a very simple way for debtors to declare their inability to pay—the insolvent debtor’s oath. Part II describes a modern bankruptcy law that offers consumers very generous relief but requires complex paperwork and is unaffordable for many in financial distress. Part III proposes a new and greatly simplified bankruptcy procedure that would allow some debtors to take an updated version of the insolvent debtor’s oath in lieu of completing the complicated forms and schedules required by current law. The potential benefits are enormous. Because so many consumers file, the population of bankrupt consumers spends more than one billion each year on Chapter 7 filing costs alone,43 43.See infra notes 128–30 and accompanying text.Show More and the indirect costs of the paperwork may be even larger. Some insolvent debtors are too broke to file; they either forego bankruptcy protection altogether or file under a different chapter that allows them to pay their attorneys over time but rarely discharges their debts.44 44.See infra Section II.B.Show More Our proposal offers something for supporters of means testing as well. Procedures that require the production of costly information are easier to justify if they are restricted to the small number of debtors who are likely to have significant assets or income. Part IV addresses likely criticisms of our proposal, and Part V concludes.

  1. See Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007) (internal quotation marks and citations omitted). ↑
  2. Thomas H. Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 Harv. L. Rev. 1393, 1405–18 (1985). ↑
  3. Id. at 1418–24. ↑
  4.  Id. at 1420–24. For qualifications to this argument, see Richard M. Hynes, Non-Procrustean Bankruptcy, 2004 Univ. Ill. L. Rev. 301, 321–26. ↑
  5. For example, in the Central District of California Bankruptcy Courts, at least twenty-seven forms are required to be submitted to the court by Chapter 7 debtors. U.S. Bankr. Ct. for the Cent. Dist. of Cal., Chapter 7 Petition Package (Individual Debtors), 3–6 (Dec. 2020), https://www.cacb.uscourts.gov/sites/cacb/files/documents/forms/Ch7%20IndividualPetitionPackage.pdf [https://perma.cc/JHR2-HMMG]. ↑
  6. Just 6.5% of Chapter 7 debtors file pro se. See infra note 158 and accompanying text. ↑
  7. See Lois R. Lupica, The Consumer Bankruptcy Fee Study: Final Report, Am. Bankr. Inst. 130, tbl.A-6 (Dec. 2011) (listing total direct access costs (attorney’s fees plus filing fees) for no-asset Chapter 7 cases of $1,304 in 2005 dollars). The Bureau of Labor Statistics Inflation calculator converts $1,304 in May of 2005 into $1,806 in May of 2021. CPI Inflation Calculator, U.S. Bureau of Lab. Stat., https://www.bls.gov/data/inflation_calculator.htm [https://perma.cc/33FK-GRDN] (last visited Apr. 3, 2022). ↑
  8. See, e.g., Ronald J. Mann & Katherine Porter, Saving Up for Bankruptcy, 98 Geo. L.J. 289, 292 (2010). Then-Professor Porter has since been elected to the U.S. House of Representatives. ↑
  9. Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (codified in scattered sections of 11 U.S.C.). ↑
  10. 151 Cong. Rec. 3, 4351 (2005) (statement of then-Senator Joe Biden) (arguing in favor of the bill’s adoption during debate, concluding that “[a] vote for this bill is a vote to protect family support payments in bankruptcy. That is why I support this bill”). ↑
  11. See Robert H. Scott, III, Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: How the Credit Card Industry’s Perseverance Paid Off, 41 J. Econ. Issues 943, 945 (2007). ↑
  12. See, e.g., Robert M. Lawless et al., Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors, 82 Am. Bankr. L.J. 349, 362 n.53 (2008). ↑
  13. Katie Glueck & Thomas Kaplan, Biden, Looking to Attract Progressives, Endorses Warren Bankruptcy Plan, N.Y. Times (May 22, 2020), https://www.nytimes.com/2020/03/14​/us/politics/biden-warren-bankruptcy.html [https://perma.cc/Y3V9-YN9Y]. ↑
  14. We express no judgment on other aspects of the reforms, such as making it easier to discharge student debt. Consumer Bankruptcy Reform Act of 2020, S. 4991, 116th Cong. § 101(b)(8) (2020). ↑
  15. Elizabeth Warren, Fixing Our Bankruptcy System to Give People a Second Chance, Warren Democrats (Jan. 7, 2020), https://elizabethwarren.com/plans/bankruptcy-reform [https://perma.cc/Q529-HMSB]. ↑
  16. See Lupica, supra note 7, at 130 tbl.A-6 (reporting total direct costs of $866 in 2005 dollars). Adjusting for inflation, this is roughly $1,199 in 2020 dollars. CPI Inflation Calculator, supra note 7. ↑
  17. Consumer Bankruptcy Reform Act of 2020, S. 4991, 116th Cong. § 101(b)(4) (2020); Warren, supra note 15. ↑
  18. See, e.g., Fed. R. Civ. P. 8. Even a plausibility standard requires only that the complaint allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). ↑
  19. See, e.g., Yonathan A. Arbel, Adminization: Gatekeeping Consumer Contracts, 71 Vand. L. Rev. 121, 123 (2018). ↑
  20. Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence 3 (2002). ↑
  21. Prior to 1898, Congress enacted three bankruptcy acts that together lasted less than twenty years. Congress repealed the Bankruptcy Act of 1800 in 1803, Act of Dec. 19, 1803, ch. 6, 2 Stat. 248, the Bankruptcy Act of 1841 in 1843, Act of Mar. 3, 1843, ch. 82, 5 Stat. 614, and the Bankruptcy Act of 1867 in 1878, Act of June 7, 1878, ch. 160, 20 Stat. 99. For a history of bankruptcy in the United States, see generally David A. Skeel, Jr., Debt’s Dominion: A History of Bankruptcy Law in America (2001) and Charles Jordan Tabb, The History of Bankruptcy Laws in the United States, 3 Am. Bankr. Inst. L. Rev. 5 (1995). ↑
  22. See infra notes 52–55 and accompanying text. ↑
  23. Act of May 5, 1792, ch. 29, § 2, 1 Stat. 265, 266. For other versions of the poor debtor’s oath, see infra note 64 and accompanying text. ↑
  24. Mann, supra note 20, at 51. ↑
  25. See infra Table 1. ↑
  26. See infra notes 129–33 and accompanying text. ↑
  27. See Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007). ↑
  28. Tom Jackson recognized this point when he noted that “[t]he fresh-start policy is thus substantively unrelated to the creditor-oriented distributional rules that give bankruptcy law its general shape and complexity.” Jackson, supra note 2, at 1396. ↑
  29. For a longer discussion of the possible text of this oath, see infra Section III.D. ↑
  30. See infra Section IV.A. Our proposal is similar to Tom Jackson’s suggestion that the fresh start could be tied to a public declaration of insolvency. See Jackson, supra note 2, at 1396 n.8. (“For example, the law might grant discharge through a system of public notice whereby certain assets (such as future wages) would be freed from the claims of existing creditors. The mechanism of public notice would inform creditors of the debtor’s election.”). ↑
  31. See, e.g., Teresa A. Sullivan, Elizabeth Warren & Jay Lawrence Westbrook, The Fragile Middle Class: Americans in Debt 2–3 (2000). ↑
  32. For others using this phrase, see, for example, Robert A. Feer, Imprisonment for Debt in Massachusetts before 1800, 48 Miss. Valley Hist. Rev. 252, 259 (1961) and Walter H. Moses, Enforcement of Judgments Against Hidden Assets, 1951 U. Ill. L.F. 73, 79. ↑
  33. See infra note 125 and accompanying text. ↑
  34. See infra note 104 and accompanying text. ↑
  35. See infra notes 101–03 and accompanying text. ↑
  36. See Feer, supra note 32, at 255 (“The creditors were to be notified of the oath, and if they did not prove within fifty days that it was false, the prisoner was to be freed unless his creditors agreed to pay his weekly board charges.”). ↑
  37. As is true under current law, courts could revoke a discharge if it is found to have been obtained by fraud or if a subsequent audit by the U.S. Trustee suggests revocation is appropriate. See 11 U.S.C. § 727(d); infra notes 165–69 and accompanying text. ↑
  38. See infra Section III.B. ↑
  39. See infra Section III.B ↑
  40. See infra notes 202–06 and accompanying text. ↑
  41. See infra Table 2 and accompanying text. ↑
  42.  See Nathaniel Pattison & Richard M. Hynes, Asset Exemptions and Consumer Bankruptcies: Evidence from Individual Filings, 63 J.L. & Econ. 557, 569 tbl.2 (2020). ↑
  43. See infra notes 128–30 and accompanying text. ↑

  44. See infra Section II.B. ↑

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