Volume 108

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). ↑

Vagueness and Nondelegation

The void-for-vagueness doctrine and the nondelegation doctrine share an intuitive connection: when Congress drafts vague statutes, it delegates lawmaking authority to courts and the executive. In three recent cases, the Supreme Court gave expression to this link by speaking of the doctrines using nearly identical vocabulary. Notably, Justice Gorsuch suggested that as the nondelegation doctrine waned during the second half of the twentieth century, vagueness replaced it,—doing much of the doctrinal work that nondelegation would have done otherwise.

This Note tests that historical claim, and in doing so, offers two main contributions. First, it concludes that as a historical matter, Justice Gorsuch tells only part of the story. Although early vagueness doctrine in the late 1800s had strong streaks of nondelegation, vagueness doctrine of the post-New Deal era did not. The latter vagueness instead turned toward protecting individual rights and preventing racial discrimination by state and local governments. Here, nondelegation concerns were absent.

But the Roberts Court has rebooted the early vagueness doctrine that did indeed incorporate nondelegation. Modern vagueness cases thus resemble early vagueness cases. In these cases, absent are questions of individual rights, replaced by a focus on the separation of powers. In effect, there are two vagueness doctrines, one focused on individual rights and another centered around the separation of powers. This Note thus offers its second contribution: categorizing the Court’s vagueness cases and recognizing the categories for what they are.

“[O]nce we lift the veil of the void-for-vagueness doctrine, the revelations can be far reaching.”1 1.Risa L. Goluboff, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights, 62 Stan. L. Rev. 1361, 1387 (2010).Show More

Introduction

Suppose Congress enacts a statute that reads as follows: “Any person engaging in morally blameworthy conduct or lacking good moral character shall be punished as provided by this Code.” Is this statute unconstitutional? If so, why? Is it because of the void-for-vagueness doctrine, under which vague criminal laws violate the Constitution’s due process protections? Or is it because of the nondelegation doctrine, under which Congress cannot delegate its Article I legislative power to the executive and judicial branches through unintelligible statutes?

Or is it both?

In three recent U.S. Supreme Court cases, decided within a year of each other, these two relatively dormant doctrines—vagueness and nondelegation—simultaneously reemerged. In United States v. Davis2 2.139 S. Ct. 2319, 2336 (2019).Show More and Sessions v. Dimaya,3 3.138 S. Ct. 1204, 1223 (2018).Show More the Court struck down provisions in the federal criminal code as void for vagueness, while in Gundy v. United States, the Court addressed a nondelegation challenge to Congress’s delegation of authority to the Attorney General.4 4.139 S. Ct. 2116, 2122 (2019).Show More

At first glance, vagueness and nondelegation appear more different than alike. The Court has located the nondelegation doctrine in the Constitution’s “Vesting Clauses”—the Article I, Article II, and Article III provisions which vest the legislative, executive, and judicial powers in their respective branches—while vagueness doctrine has its roots in fair notice concerns and the Due Process Clauses. Vagueness’s most prominent application has been in cases involving state and local vagrancy offenses and status crimes, while the nondelegation doctrine has been employed in largely conservative-libertarian projects aimed to rein in the ever-expanding administrative and regulatory state.

Despite these differences, the two doctrines share an intuitive connection: when legislatures draft vague statutes, they delegate lawmaking authority to other branches of government. The Court gave expression to this link in Dimaya, Davis, and Gundy, describing the two doctrines using starkly similar vocabulary and shedding light on their interrelatedness. In Dimaya, Justice Kagan referred to vagueness as the “corollary” of the separation of powers that undergirds the nondelegation doctrine.5 5.Dimaya, 138 S. Ct. at 1212.Show More In his Dimaya dissent, Justice Thomas noted that the “Court’s precedents have occasionally described the vagueness doctrine in terms of nondelegation.”6 6.Id.at 1248 (Thomas, J., dissenting).Show More Most notably, in Gundy, Justice Gorsuch argued that “most any challenge to a legislative delegation can be reframed as a vagueness complaint,” and that the Court’s “void-for-vagueness cases became much more common soon after the Court began relaxing its approach to legislative delegations.”7 7.Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting).Show More That is, as the Court backed away from using the nondelegation doctrine to police Congress’s delegation of its legislative power in the second half of the twentieth century, the Court began using vagueness to do the work that nondelegation would have done otherwise.

This Note picks up on the thread that Justice Gorsuch started in Gundy and explores the relationship between vagueness and nondelegation. In so doing, this Note offers two main contributions.

First, it concludes that as a historical matter, Justice Gorsuch’s claim about vagueness replacing nondelegation tells only part of the story. The Note looks to pre- and post-New Deal doctrinal development of both vagueness and nondelegation to conclude that while the doctrines have some overlap, Justice Gorsuch overstated their connection. The Court’s vagueness cases from the late 1800s, the early days of the doctrine, did indeed police legislative delegations. But the cases that came after 1937 did not. The Court instead began using vagueness to protect individual rights like free speech. It also wielded vagueness to protect racial minorities from invidious discrimination by state and local police. In these post-New Deal vagueness cases, federal nondelegation concerns were largely absent. This version of vagueness did not replace the nondelegation doctrine, which the Court largely discarded.

Still, the Roberts Court picked up where the early vagueness cases left off; nondelegation again entered the realm of vagueness. In modern vagueness cases, concerns of individual rights and free speech are absent. Also absent are issues of invidious racial discrimination. These cases instead emphasize the proper constitutional role of Congress, the executive, and the judiciary within the federal separation of powers. To the extent that the Court and Justice Gorsuch see an overlap between vagueness and nondelegation, it is this line of cases that they see.

In effect, there are two vagueness doctrines. One comprises the majority of the Court’s vagueness cases after the New Deal era, including the landmark case Papachristou v. City of Jacksonville. The second has its origins in the earliest vagueness cases. And although this latter doctrine subsided after 1937, the Court has revived it in recent cases like Dimaya and Davis.

This Note categorizes the Court’s vagueness cases into (1) Rights-Based Vagueness and (2) Structure-Based Vagueness. Although both categories of cases involve due process concerns, they diverge from there. Cases like Papachristou, and their emphasis on individual rights and equal protection, comprise Rights-Based Vagueness. In contrast, Structure-Based Vagueness is the vagueness that the Court employs in Dimaya, Davis, and Gundy. In these latter cases, the Court emphasizes nondelegation and the separation of powers. To the extent that vagueness and nondelegation converge, it is in the context of Structure-Based Vagueness. This Note thus offers its second contribution: categorizing the Court’s vagueness cases and recognizing the categories for what they are.

Recognizing Structure-Based Vagueness for what it is has important implications. Identifying this category adds analytical clarity to the literature on the intersection of vagueness and nondelegation, which to this point has remained cursory and underdeveloped. It further offers insight into how a vagueness doctrine that was previously wielded to address racial discrimination by local police has transformed into a vagueness doctrine that seemingly only has purchase in challenges to federal malum prohibitum crimes. This Note thus adds to the realist literature that views vagueness doctrine as a doctrinal makeweight, which can be reshaped to serve broader and unrelated judicial values and priorities.

Identifying Structure-Based Vagueness has practical consequences too. Structure-Based Vagueness offers common ground to criminal justice reformers and immigrant rights advocates on the one hand, and conservative-libertarians interested in curbing the power of the federal government on the other. By employing the rhetoric of separation of powers in their vagueness arguments, criminal justice reformers and immigrant rights advocates can win meaningful progressive victories from a Court enamored with nondelegation. Moreover, Structure-Based Vagueness offers a limiting principle to opponents of a more aggressive nondelegation doctrine. By tying Structure-Based Vagueness and its nondelegation component to their underlying rationales, skeptics of the nondelegation doctrine can cabin its application to only criminal and penal laws, reducing the potentially harmful impact that a more rigid doctrine would have on environmental, labor, and other economic regulations.

This Note proceeds in four Parts. Part I provides a brief summary of the vagueness and nondelegation doctrines and canvasses literature that addresses their intersection. It then summarizes the Court’s decisions in Dimaya, Davis, and Gundy and draws out Justice Gorsuch’s specific claim about the relationship between vagueness and nondelegation. Part II inspects the historical trajectory of both doctrines, beginning just before the Lochner era and ending with today’s Roberts Court. It uses this history to challenge Justice Gorsuch’s claim. Part III then categorizes vagueness into its two conceptions—Rights-Based Vagueness and Structure-Based Vagueness. Part IV explores the theory behind Structure-Based Vagueness and identifies future applications. A brief conclusion follows.

  1. Risa L. Goluboff, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights,
    62

    Stan. L. Rev.

    1361, 1387 (2010).

    ↑

  2. 139 S. Ct. 2319, 2336 (2019). ↑
  3. 138 S. Ct. 1204, 1223 (2018). ↑
  4. 139 S. Ct. 2116, 2122 (2019). ↑
  5. Dimaya, 138 S. Ct. at 1212. ↑
  6. Id. at 1248 (Thomas, J., dissenting). ↑

  7. Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting). ↑

Pretrial Detention and the Value of Liberty

How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify danger—has brought this question to the fore. Constitutional doctrine authorizes pretrial detention when the government’s interest in safety “outweighs” an individual’s interest in liberty, but it does not specify how to balance these goods. If detaining ten presumptively innocent people for three months is projected to prevent one robbery, is it worth it?

This Article confronts the question of what degree of risk justifies pretrial preventive detention if one takes the consequentialist approach of current law seriously. Surveying the law, we derive two principles: 1) detention must avert greater harm (by preventing crime) than it inflicts (by depriving a person of liberty); and 2) prohibitions against pretrial punishment mean that the harm experienced by the detainee cannot be discounted in the cost-benefit calculus. With this conceptual framework in place, we develop a novel empirical method for estimating the relative personal cost of incarceration and crime victimization that we call relative harm valuation: a survey method that asks respondents to choose between being the victim of certain crimes or being jailed for varying time periods. The results suggest that even short periods of incarceration impose grave harms, such that a person must pose an extremely high risk of serious crime in order for detention to be justified. No existing risk assessment tool is sufficient to identify individuals who warrant detention. The results demonstrate that the stated consequentialist rationale for pretrial detention cannot begin to justify our current detention rates. They suggest that the existing system is instead inflicting pretrial punishment, and they counsel a rethinking of pretrial law and policy.

Introduction

Suppose we can avert an armed robbery by incarcerating ten people for thirty days each. We do not know which of the ten would otherwise commit the crime, and the incarceration is not justified as punishment. Is it worth it? How many people should we be willing to lock up to prevent one future crime?

“None!” you may answer, on the ground that the state may never lock up any person solely to prevent future crime—at least not any person who is a responsible agent with her cognitive faculties intact. We live in a liberal democracy, not a dystopia.1 1.See generally Minority Report (20th Century Fox 2002) (depicting dystopian future in which future-criminals are incapacitated before they commit any crime).Show More You may be forgiven; this view has wide currency among thoughtful people.2 2.See, e.g., Laurence H. Tribe, An Ounce of Detention: Preventative Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 376–77 (1970) [hereinafter Tribe, An Ounce of Detention]; Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1370 (1971); see also infra notes 78–79 and accompanying text (addressing this perspective).Show More

But your indignation runs counter to the facts and the law. Contrary to common perception, preventive detention is not just the stuff of science fiction. Governments of contemporary liberal democracies routinely engage in preventive detention of many forms. Pretrial detention is one type. Other types include juvenile detention, immigration detention, and manifold variants of short- and long-term civil commitment.3 3.See infra notes 58–64 and accompanying text.Show More In each of these fields, the government claims authority to deprive people of liberty solely on the basis that custody is necessary to prevent a person from committing future harm.4 4.There are also forms of preventive detention that seek to avert unintentional rather than, or in addition to, willful acts of harm. Examples include quarantine to prevent the spread of communicable disease, as we know all too well, and jury sequestration. For discussions of the law of jury sequestration, see, e.g., Marcy Strauss, Sequestration, 24 Am. J. Crim. L. 63 (1996); James P. Levine, The Impact of Sequestration on Juries, 79 Judicature 266 (1996).Show More The state makes no claim that the person to be detained has forfeited her right to liberty or that the deprivation is deserved. The detention is not punishment. Instead, the detention is “regulatory.” The U.S. Supreme Court has long authorized such practices.5 5.See infra notes 34–43 and accompanying text.Show More Indeed, it is hard to imagine functional governance without them.

Nonetheless, preventive detention is terrifying. It does not adhere to the central constraint on criminal punishment—that it may be imposed only for a past wrongful act.6 6.See H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 1, 23 (2d ed. 2008) (explaining how this constraint on punishment “maximizes individual freedom within the coercive framework of law”); Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008) (describing conceptual constraints on punishment).Show More The justification for preventive detention is merely “risk,” and risk is amorphous. So the central question for any preventive detention regime is what kind and degree of risk is sufficient to justify the detention at issue. If we incarcerate people who have a 20% chance of otherwise committing an assault during the period of detention, for instance, we can expect to prevent one assault for every five detentions. Is such detention justified? How much liberty should we sacrifice to prevent one crime?

As is, there is nothing approaching a consensus answer to this question.7 7.See generally Christopher Slobogin, A Jurisprudence of Dangerousness, 98 Nw. U. L. Rev. 1 (2003) (urging scholars and courts to develop more coherent standards for preventive deprivations of liberty).Show More Courts and legislatures routinely assert the regulatory power of the state to detain those who pose a great enough risk, but even in long-standing preventive detention regimes, the relevant legal standards are vague at best.8 8.See infra Section I.A.Show More Generations of scholars have lamented the lack of legal guidance. Few have offered specific guidance themselves.9 9.See Alan Dershowitz, The Origins of Preventive Confinement in Anglo-American Law — Part I: The English Experience, 43 U. Cin. L. Rev. 1, 60 (1974) (“We have not even begun to ask these kinds of questions, or to develop modes of analysis for answering them.”).Show More The problem is that the question requires an explicit tradeoff between liberty and security, values that are infrequently measured and difficult to compare.

Difficulties notwithstanding, the bail reform movement has now placed the question of what risk justifies preventive detention squarely at center stage.10 10.See Sandra G. Mayson, Dangerous Defendants, 127 Yale L.J. 490, 494 (2018) [hereinafter Mayson, Dangerous Defendants] (“[Bail reform] holds great promise, but also raises an extremely difficult question: what probability that a person will commit unspecified future crime justifies detention . . . ?”).Show More Jurisdictions around the country are forsaking money bail in favor of more intentional decisions about pretrial custody. The new systems aspire to detain those arrested persons who pose a true threat and release everyone else on appropriate conditions.11 11.See Stephanie Wykstra, Bail Reform, Which Could Save Millions of Unconvicted People from Jail, Explained, Vox (Oct. 17, 2018, 7:30 AM), https://www.vox.com/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice-inequality [https://perma.cc/V3Q​S-J69G].Show More Flight risk is also a concern in the pretrial context, but a distinctly secondary one in practice.12 12.Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L.J. 1344, 1351 (2014) (“Historically, the U.S. system of bail and associated pretrial detention was employed solely to prevent pretrial flight, but increasingly, the many individuals awaiting trial in jail are detained because a judge has deemed them potentially dangerous.”). For a thoughtful discussion of the various kinds of risk, often lumped together as “flight risk,” see Lauryn P. Gouldin, Defining Flight Risk, 85 U. Chi. L. Rev. 677 (2018).Show More The aspiration to limit detention to the dangerous requires each pretrial system to decide what kind of threat justifies detention. The advent of statistical risk assessment has crystallized the question further by forcing courts and stakeholders to deal in quantified probabilities and to confront the limits of prediction.13 13.John Monahan & Eric Silver, Judicial Decision Thresholds for Violence Risk Management, 2 Int’l J. of Forensic Mental Health 1, 6 (2003) (“The necessity for choosing a decision threshold for risk management decisions, long implicit in clinical risk assessment, is made apparent in actuarial prediction.”).Show More Every jurisdiction that authorizes pretrial detention, and every court that imposes it, must decide what degree of risk warrants depriving a person of liberty.

This Article tackles the question of when pretrial detention is warranted to prevent future crime.14 14.Cf. Mayson, Dangerous Defendants, supra note 10, at 557–60 (reserving judgment on the degree of risk that justifies preventive detention). This Article does not address the power of courts to detain an accused person who has violated a court-imposed condition of release.Show More Whereas the great bulk of prior scholarship on pretrial detention has focused on the shortcomings of current law,15 15.E.g., Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 Mich. L. Rev. 510 (1986); Chalmous G. Reemes, United States v. Salerno: The Validation of Preventive Detention and the Denial of a Presumed Constitutional Right to Bail, 41 Ark. L. Rev. 697, 719–22 (1988).Show More we take existing law as a given. This is not to endorse existing law as representing the best possible policy approach to detention. The project, rather, is to take existing legal doctrine seriously and to ask when detention meets the law’s criteria. We present a conceptual framework for answering the question and then a novel empirical method for implementing the framework.

The conceptual framework is a straightforward consequentialist one. Constitutional law authorizes pretrial detention when the government’s interest in safety “outweighs” the individual’s interest in liberty.16 16.See infra notes 29–44 and accompanying text.Show More On our reading, this doctrine establishes a simple cost-benefit framework.17 17.See infra Section I.B.Show More In order to be justified in those terms, pretrial detention must, at minimum, avert more harm than it inflicts. The most significant harms at stake are the cost of crime to the potential crime victim and the cost of pretrial detention to the detainee. Within this calculus, prohibitions against pretrial punishment mean that the well-being of the arrestee must be fully considered. The challenge is thus to develop a direct measure of the relative harms of incarceration and crime.

To meet the challenge, the Article deploys a novel form of contingent valuation that we call “relative harm valuation” (“RHV”).18 18.We developed this concept and conducted our first study in 2017 but learned in the spring of 2020 that others have used the same method in other contexts. Most notably, the legal scholars Jane Bambauer and Andrea Roth have used a similar survey method to estimate when carceral punishment becomes “excessive” for constitutional purposes. See infra note 119. Conversations with Bambauer and Roth were valuable in refining our approach. We consider the existence of these other efforts to be a strength of the present study rather than a weakness. The other studies to have deployed RHV have also documented a surprising degree of aversion to incarceration or involuntary commitment among a sizable portion of respondents. See infra note 141.Show More It aims to estimate the relative harm of incarceration versus crime victimization while avoiding some of the distortions that plague traditional cost-benefit and contingent-valuation methods. Our method is intentionally simple, and it echoes John Rawls’ famous notion that the principles of justice are those that a rational person would choose behind a “veil of ignorance” as to her own traits and position in society.19 19.John Rawls, A Theory of Justice 118 (2d ed. 1999).Show More Adapting his effort to detach normative analysis from self-interest, we conduct a survey that requires respondents to compare the costs of detention and crime directly, imagining themselves as both detainee and as crime victim. We ask questions like, “How much time in jail is as bad as being the victim of a burglary?” and, “If you had to choose between spending a month in jail or being the victim of a burglary, which would you choose?”20 20.This method is a variant of the survey technique formally known as “contingent valuation,” which has provided most of the commonly used estimates for the costs of crime. See infra notes 103–07 and accompanying text.Show More

The survey results suggest that people view incarceration as an incredibly harmful experience. Most would choose crime-victimization over even short jail stints. The median respondent says that a single day in jail is as costly as a burglary, that three days are as costly as a robbery, and that a month in jail is as costly as an aggravated assault. Notably, these results are very consistent across race, gender, and socioeconomic class of the respondent. They are also quite similar for those who have personal experience with incarceration or crime victimization. Aversion to incarceration is broad and widespread.

By focusing on costs to the crime victim and incarcerated person, our method puts aside indirect and fiscal costs. However, we expect these to accrue on both sides of the ledger. Crime can create fear in the community, but so can incarceration. Law enforcement and prosecution are expensive to the state, but so is incarceration. Including such costs might make the analysis more nuanced, but we do not think it would meaningfully change the main result: that even a short period of incarceration inflicts very grave harms.

The severity of the harm that incarceration inflicts (according to our median respondent) means that preventive detention can only be justified on consequentialist grounds if there is a very high risk that the person would otherwise commit serious crime. Jailing a person for thirty days is justifiable only if it is expected to prevent crimes at least as harmful as a serious assault. Jailing someone for just one day is justifiable only if it averts crime as serious as burglary. These risk thresholds are higher than we can meet with statistical evidence. In studies of one widely used risk assessment tool, for instance, even defendants in the highest risk group have only a 2.5% chance of rearrest for a violent offense within a month.21 21.See Thomas Blomberg, William Bales, Karen Mann, Ryann Meldrum & Joe Nedelec, Ctr. for Criminology and Pub. Pol’y Rsch., Validation of the COMPAS Risk Assessment Classification Instrument 47 tbl.8 (2010).Show More We would have to detain forty such people for one month each, not just one person, to expect to avert one violent offense.

Given the high risk-threshold for preventive detention and the limits of our predictive abilities, pretrial detention on the basis of dangerousness should be rare. But it is not. On any given day, almost 500,000 people are held in jails awaiting trial.22 22.Zhen Zeng, Bureau of Just. Stat., Jail Inmates in 2017, 1 fig.1, 5 tbl.3 (2019), www.bjs.gov/content/pub/pdf/ji17.pdf [https://perma.cc/NPM3-NP84].Show More Many more cycle through pretrial detention each year.23 23.Id. at 1.Show More A significant number of these detentions may be the unintentional result of a court setting money bail that the accused cannot afford.24 24.E.g., Sandra G. Mayson, Detention by Any Other Name, 69 Duke L.J. 1643, 1653 (2020) [hereinafter Mayson, Detention by Any Other Name] (citing statistics regarding detention on money bail).Show More A much smaller number may be justified on the basis of flight risk—a ground for detention that this paper does not address.25 25.But see Wiseman, supra note 12, at 1349 (arguing that detention is rarely necessary to manage flight risk given advancing surveillance technologies).Show More Yet the centrality of public-safety discourse in the growing backlash to bail reform efforts demonstrates that crime risk dwarfs flight risk, in the view of both courts and the public, as a concern in the pretrial phase.26 26.See, e.g., Jesse McKinley, The Bail Reform Backlash that Has Democrats at War, N.Y. Times (Feb. 14, 2020), https://www.nytimes.com/2020/02/14/nyregion/new-york-bail-reform.html [https://perma.cc/NU9F-B3RZ]; see also, e.g., H.R. 81, 2020 Leg., Reg. Sess. (Ala. 2020) (proposing amendment to state constitution to permit pretrial detention for dangerousness).Show More The focus on crime risk suggests that a substantial portion of the millions of people who cycle through jails each year are there because they were perceived to be dangerous.

There are many possible explanations for the dramatic gap between theory and practice. The most likely, we surmise, is that current practice reflects an implicit discounting of the value of detainees’ well-being relative to the well-being of potential crime victims. This might be because accused people are viewed as criminals who have forfeited the right to liberty; because accused people are disproportionately Black, brown, and poor while the paradigmatic crime victim in the public imagination is white and wealthy; because pretrial detention is assumed to be credited against legitimate punishment imposed after conviction; or all of the above.

Some of these grounds for discounting the welfare of arrestees are easier to dismiss than others. The most difficult ground to dismiss is the idea that arrestees are not entitled to the same concern as crime victims because they are not wholly innocent; they are in some manner culpable for having created the risk at issue. As one of us has written elsewhere, this notion runs headlong into the presumption of innocence and prohibition on pretrial punishment, foundational principles of the American legal order.27 27.Mayson, Dangerous Defendants, supra note 10, at 537–38.Show More It is extremely difficult to reconcile those principles with the idea that the state can discount the welfare of arrestees on the basis of their (probable) guilt. Yet the intuition that the state may treat accused persons as having impaired moral status is strong, and in some circumstances, it seems unjust not to discount an arrestee’s welfare relative to a person the arrestee is credibly alleged to have threatened.

This Article does not resolve the conflict between the prohibition on pretrial punishment and the human impulse to discount the welfare of arrestees in a cost-benefit calculus. Rather, it demonstrates that a rigorous consequentialist analysis raises deep questions about how the law ought to value individual liberty and welfare, questions that echo across many fields of law. It also demonstrates that, left unexamined, consequentialist rationales can mask decision-making processes that rely on judgments of worth or that are dictated by perverse incentives. Confronting these processes will be important to the long-term success of pretrial reform.

This Article makes four contributions. The first is to fully articulate the consequentialist conceptual framework for detention decisions that current law entails. The second is the method we devise to apply that framework: relative harm valuation, which allows for the comparison of intangible harms without resorting to the distorting intermediary of dollars. This Article’s third contribution is the information the survey reveals: Even short periods of jail detention impose harms as grave as serious crimes. The logical corollary is that if we value the liberty of accused people and crime victims by a common standard, pretrial detention for the purpose of preventing crime is almost never warranted on cost-benefit grounds. Finally, in illuminating the chasm between the cost-benefit rationale for pretrial detention and our actual practices, this Article highlights the need for policymakers, courts, and bail reformers to grapple with the retributive impulse and institutional incentives that shape detention practice on the ground.

This Article proceeds in three Parts. Part I describes the legal doctrine that authorizes pretrial preventive detention on cost-benefit grounds. It extrapolates the consequentialist conceptual framework that this doctrine implies, then explains why existing empirical methods are inadequate to weigh the harm of criminal victimization against the harm of incarceration. Part II presents our relative-harm-valuation surveys and explains the results. Part III explores the implications of the survey results for pretrial policy and beyond.

  1. See generally Minority Report (20th Century Fox 2002) (depicting dystopian future in which future-criminals are incapacitated before they commit any crime). ↑
  2. See, e.g., Laurence H. Tribe, An Ounce of Detention: Preventative Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 376–77 (1970) [hereinafter Tribe, An Ounce of Detention]; Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1370 (1971); see also infra notes 78–79 and accompanying text (addressing this perspective). ↑
  3. See infra notes 58–64 and accompanying text. ↑
  4. There are also forms of preventive detention that seek to avert unintentional rather than, or in addition to, willful acts of harm. Examples include quarantine to prevent the spread of communicable disease, as we know all too well, and jury sequestration. For discussions of the law of jury sequestration, see, e.g., Marcy Strauss, Sequestration, 24 Am. J. Crim. L. 63 (1996); James P. Levine, The Impact of Sequestration on Juries, 79 Judicature 266 (1996). ↑
  5. See infra notes 34–43 and accompanying text. ↑
  6. See H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 1, 23 (2d ed. 2008) (explaining how this constraint on punishment “maximizes individual freedom within the coercive framework of law”); Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008) (describing conceptual constraints on punishment). ↑
  7. See generally Christopher Slobogin, A Jurisprudence of Dangerousness, 98 Nw. U. L. Rev. 1 (2003) (urging scholars and courts to develop more coherent standards for preventive deprivations of liberty). ↑
  8. See infra Section I.A. ↑
  9. See Alan Dershowitz, The Origins of Preventive Confinement in Anglo-American Law — Part I: The English Experience, 43 U. Cin. L. Rev. 1, 60 (1974) (“We have not even begun to ask these kinds of questions, or to develop modes of analysis for answering them.”). ↑
  10. See Sandra G. Mayson, Dangerous Defendants, 127 Yale L.J. 490, 494 (2018) [hereinafter Mayson, Dangerous Defendants] (“[Bail reform] holds great promise, but also raises an extremely difficult question: what probability that a person will commit unspecified future crime justifies detention . . . ?”). ↑
  11. See Stephanie Wykstra, Bail Reform, Which Could Save Millions of Unconvicted People from Jail, Explained, Vox (Oct. 17, 2018, 7:30 AM), https://www.vox.com/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice-inequality [https://perma.cc/V3Q​S-J69G]. ↑
  12. Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L.J. 1344, 1351 (2014) (“Historically, the U.S. system of bail and associated pretrial detention was employed solely to prevent pretrial flight, but increasingly, the many individuals awaiting trial in jail are detained because a judge has deemed them potentially dangerous.”). For a thoughtful discussion of the various kinds of risk, often lumped together as “flight risk,” see Lauryn P. Gouldin, Defining Flight Risk, 85 U. Chi. L. Rev. 677 (2018). ↑
  13. John Monahan & Eric Silver, Judicial Decision Thresholds for Violence Risk Management, 2 Int’l J. of Forensic Mental Health 1, 6 (2003) (“The necessity for choosing a decision threshold for risk management decisions, long implicit in clinical risk assessment, is made apparent in actuarial prediction.”). ↑
  14. Cf. Mayson, Dangerous Defendants, supra note 10, at 557–60 (reserving judgment on the degree of risk that justifies preventive detention). This Article does not address the power of courts to detain an accused person who has violated a court-imposed condition of release. ↑
  15. E.g., Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 Mich. L. Rev. 510 (1986); Chalmous G. Reemes, United States v. Salerno: The Validation of Preventive Detention and the Denial of a Presumed Constitutional Right to Bail, 41 Ark. L. Rev. 697, 719–22 (1988). ↑
  16. See infra notes 29–44 and accompanying text. ↑
  17. See infra Section I.B. ↑
  18. We developed this concept and conducted our first study in 2017 but learned in the spring of 2020 that others have used the same method in other contexts. Most notably, the legal scholars Jane Bambauer and Andrea Roth have used a similar survey method to estimate when carceral punishment becomes “excessive” for constitutional purposes. See infra note 119. Conversations with Bambauer and Roth were valuable in refining our approach. We consider the existence of these other efforts to be a strength of the present study rather than a weakness. The other studies to have deployed RHV have also documented a surprising degree of aversion to incarceration or involuntary commitment among a sizable portion of respondents. See infra note 141. ↑
  19. John Rawls, A Theory of Justice 118 (2d ed. 1999). ↑
  20. This method is a variant of the survey technique formally known as “contingent valuation,” which has provided most of the commonly used estimates for the costs of crime. See infra notes 103–07 and accompanying text. ↑
  21. See Thomas Blomberg, William Bales, Karen Mann, Ryann Meldrum & Joe Nedelec, Ctr. for Criminology and Pub. Pol’y Rsch., Validation of the COMPAS Risk Assessment Classification Instrument 47 tbl.8 (2010). ↑
  22. Zhen Zeng, Bureau of Just. Stat., Jail Inmates in 2017, 1 fig.1, 5 tbl.3 (2019), www.bjs.gov/content/pub/pdf/ji17.pdf [https://perma.cc/NPM3-NP84]. ↑
  23. Id. at 1. ↑
  24. E.g., Sandra G. Mayson, Detention by Any Other Name, 69 Duke L.J. 1643, 1653 (2020) [hereinafter Mayson, Detention by Any Other Name] (citing statistics regarding detention on money bail). ↑
  25. But see Wiseman, supra note 12, at 1349 (arguing that detention is rarely necessary to manage flight risk given advancing surveillance technologies). ↑
  26. See, e.g., Jesse McKinley, The Bail Reform Backlash that Has Democrats at War, N.Y. Times (Feb. 14, 2020), https://www.nytimes.com/2020/02/14/nyregion/new-york-bail-reform.html [https://perma.cc/NU9F-B3RZ]; see also, e.g., H.R. 81, 2020 Leg., Reg. Sess. (Ala. 2020) (proposing amendment to state constitution to permit pretrial detention for dangerousness). ↑

  27. Mayson, Dangerous Defendants, supra note 10, at 537–38. ↑

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