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Second-Order Decisions in Rights Conflicts

Introduction

How should judges decide hard cases involving rights conflicts? Standard debates about how to answer this question are usually framed in jurisprudential terms. Legal positivists claim that the law is sufficiently “open textured” that it will not provide judges with guidance in some range of cases.1 1.See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994).Show More The law is said to “run out” or to be incomplete.2 2.Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”).Show More In such cases, legal sources—constitutions, statutes, executive orders, agency regulations, and so on—do not provide reasons that determine the legal question at issue. When the law runs out in this way, judges have no choice but to exercise discretion. They cannot reason within the limits of the law. They must reach beyond it by relying on policy considerations or judgments drawn from political morality. How often this happens is a matter of dispute among legal positivists and theorists who take a more critical stance toward the law.3 3.See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases).Show More But whether the law runs out only in some cases, or, more radically, in all of them, judges will face the question of how to adjudicate conflicts when they lack sufficient legal reasons.

The traditional competitor to both positivist and critical legal theories has been an anti-positivist view that rejects the possibility of judicial discretion in hard cases. Most famously, Ronald Dworkin defended a single-right-answer thesis, according to which every conflict of rights has a unique or determinate outcome.4 4.See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978).Show More That is because, on his view, the law never (or almost never) runs out. At least in complex and well-developed legal systems, there are always legal sources, as well as moral values and principles embedded within the law, that provide judges with reasons to favor one outcome over another.5 5.See Dworkin, Taking Rights Seriously, supra note 4, at 286.Show More Judges never have to reach beyond the law to adjudicate rights conflicts. The law, in this view, is a complete system. It will contain sufficient reasons for making legal decisions, and the job of judges, however difficult, is to discern them.

Attempting to sidestep this long-standing debate over whether—or to what extent—there are hard cases, some legal scholars have recently taken up the question of how to decide such cases if, or when, they do indeed exist. In a leading account offered by Charles Barzun and Michael Gilbert, when ordinary considerations of law and justice leave judges uncertain about how to adjudicate rights disputes, those judges should adopt a second-order decision-making procedure to determine the outcome.6 6.On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing].Show More More specifically, and by analogy to the idea of “least cost avoidance” familiar from the economic analysis of private law,7 7.See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”).Show More they argue for a conflict-avoidance principle, which holds that “courts should decide hard cases against the party who could have more easily avoided the constitutional conflict in the first place.”8 8.Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted).Show More The promise of this principle is that, by following it, judges would resolve hard cases in a way that encourages the parties to avoid rights conflicts. If successful, this decision-making strategy would, in turn, reduce the incidence of hard cases. Judges would face fewer conflicts in which they are uncertain about how to apply the relevant first-order considerations of law and political morality.

The conflict-avoidance approach to adjudicating hard cases is both novel and ingenious. To our knowledge, and perhaps surprisingly, no one has previously proposed resolving legal indeterminacies by aiming to reduce cases that produce such indeterminacies. Of course, others have argued that their theories of adjudication would ameliorate trenchant political, social, and cultural controversies, including those involving constitutional rights.9 9.See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality).Show More But Barzun and Gilbert’s proposal is distinctive in that it only applies in hard cases. Theirs is a “meta-principle”10 10.Barzun & Gilbert, supra note 8, at 7 n.18.Show More of adjudication, rather than a general approach applicable to all cases involving rights conflicts. In conflict avoidance, hard cases are resolved recursively for the purpose of preventing more hard cases.11 11.In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views.Show More

Despite its originality and prima facie appeal, we argue that there are several reasons to avoid adoption of the conflict-avoidance principle. The argument for that principle draws on an analogy to accidents in tort law. Both accidents and hard cases involve significant costs. Just as car accidents lead to physical injuries—as well as to the administrative costs of insurance, adjudication, and compensation—hard cases produce costs for the parties to litigation and for the courts that decide them. But this analogy is one-sided and potentially misleading. Whereas accidents only produce costs, hard cases may generate important epistemic and moral benefits by serving as vehicles for deliberation, social contestation, and political or legal reform. Thinking of hard cases as if they were accidents also contributes to a pessimistic conception of rights adjudication, one with a neoliberal or libertarian tilt that favors private ordering over public and democratic decision-making.

The case for conflict avoidance is also incomplete. Courts faced with hard cases have available to them a variety of second-order decision procedures, including deference to other (or future) decision-makers, defaults favoring political values of liberty or equality, interest balancing (including theories of proportionality review and harm avoidance), and the use of lotteries or other chance devices. Selecting among these second-order strategies requires justification. If judges adopt conflict avoidance, they must have reasons to reject the others. Surveying alternatives can help clarify the values that support cost-avoidance as well as those that recommend against it.

Second-order decision-making strategies may have an important place in deciding hard cases. But in adopting them, we urge caution. The use of hypothetical examples as toy cases—to demonstrate how a theory works, rather than to recommend a particular application—may suggest that hard cases are far more prevalent in the legal system than in fact they are. Many cases that are described as “hard” may turn out to involve reasonable disagreements, rather than more intractable forms of legal incompleteness, such as indeterminacy or radical uncertainty about what the law or justice requires. And in those cases, judges may be able to proceed based on first-order reasons, without having to ascend to second-order theories of adjudication. Indeed, facing the prospect of applying second-order procedures may lead judges to conclude that law and morality do, after all, provide the right answers.

  1.  See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994). ↑
  2.  Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”). ↑
  3.  See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases). ↑
  4.  See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978). ↑
  5.  See Dworkin, Taking Rights Seriously, supra note 4, at 286. ↑
  6.  On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing]. ↑
  7.  See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”). ↑
  8.  Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted). ↑
  9.  See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality). ↑
  10.  Barzun & Gilbert, supra note 8, at 7 n.18. ↑

  11.  In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views. ↑

The New Major Questions Doctrine

This Article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the “majorness” of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October term 2021, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes may not be good enough when it comes to policies the Court deems “major.”

At the same time, the Court has increasingly relied on three new indicia of majorness to determine whether an agency policy is major: the political significance of or political controversy surrounding the policy; the novelty of the policy; and the possibility that other, supposedly even more controversial agency policies might be supported by the agency’s broader statutory rationale.

Understanding how the major questions doctrine operates today is important not only to bring a modicum of clarity to a doctrine often described as radically indeterminate. Unpacking the new major questions doctrine also provides a way to interrogate and evaluate the doctrine and to assess how it relates to, and enforces, previously understood institutional and political pathologies. In particular, this Article argues that the new major questions doctrine allows the presence of present-day political controversy surrounding a policy to alter otherwise broad regulatory statutes outside of the formal legislative process. It supplies an additional means for minority rule in a constitutional system that already skews toward minority rule. What’s more, it invites politically infused judgments by the federal courts, further eroding democratic control of policy. And it operates as a powerful de-regulatory tool that limits or substantially nullifies congressional delegations to agencies in the circumstances where delegations are more likely to be used—and more likely to be effective—even as the Court claims it is simply doing statutory interpretation.

Introduction

Stymieing agency efforts to address issues from climate change to the COVID-19 pandemic,1 1.See West Virginia v. EPA, 142 S. Ct. 2587 (2022) (invoking major questions doctrine to invalidate EPA regulation designed to curb emissions from greenhouse gasses); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) [hereinafter NFIB v. OSHA] (invoking major questions doctrine to invalidate Occupational Safety and Health Administration (“OSHA”) regulation designed to address COVID-19).Show More the major questions doctrine has emerged as a powerful weapon wielded against the administrative state.2 2.See, e.g., Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 994 (2022) (“The legal fictions underlying the major questions doctrine (specifically, the ‘major questions doctrine as Chevron step zero test’) and Chief Justice Roberts’ jurisdictional exception are poised to become the Court’s new nondelegation tests.”); Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (arguing that the Court’s earlier major questions cases diverted power to courts and away from administrative agencies).Show More The doctrine’s roots extend as far back as 2000 and arguably before.3 3.See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 787 (2017) (“Though it had precursors, the majorness inquiry first crystallized in FDA v. Brown & Williamson Tobacco Corp.”).Show More But its shape has morphed significantly over time.4 4.See Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 481–83 (2021) [hereinafter Sunstein, Two “Major Questions” Doctrines] (arguing that the Court has deployed two different formulations of the doctrine).Show More Most recently, the Supreme Court’s October term 2021 saw the doctrine become stronger, more powerful. At the same time, the Court more fully articulated its vision of when the doctrine applies. And at least one thing has become crystal clear: the major questions doctrine has become an important—perhaps the most important—constraint on agency power, particularly when it comes to some of the most pressing problems of our time.

This Article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the “majorness” of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. The major questions doctrine originally operated within the familiar Chevron framework.5 5.See Coenen & Davis, supra note 3, at 788–91 (describing doctrinal origins and operation). On Chevron, see infra notes 45–67 and accompanying text.Show More When an agency promulgated a policy that was dramatic or unexpected, the broader context of the statute, consulted in conjunction with common sense, might indicate that the statute unambiguously foreclosed that policy.6 6.See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 160 (2000) (rejecting the FDA’s attempt to regulate cigarettes in part because of the vast economic impacts of the tobacco industry and the “cryptic” statutory provision at issue). In a slightly different form, the doctrine operated to inform the courts’ analysis of whether the agency’s interpretation was a reasonable one. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014).Show More In such form, the major questions doctrine (a phrase the Court did not use until last term) was simply one tool of statutory interpretation, sitting alongside others in the tool kit such as ordinary meaning and the semantic canons.

But it has become something quite different. First, in King v. Burwell, the Court used the doctrine as a reason why courts should determine the meaning of statutory language without any deference to the agency’s views.7 7.576 U.S. 473, 485–86 (2015).Show More And now, after the October term 2021, the “new” major questions doctrine operates as a clear statement rule.8 8.See West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022) (Gorsuch, J., concurring) (describing the Court’s articulation of the major questions doctrine as a clear statement rule); id. at 2641 (Kagan, J., dissenting) (describing the major questions doctrine as a “get-out-of-text-free card[]”).Show More It directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but instead to require explicit and specific congressional authorization for certain agency policies.9 9.See id. at 2633–34, 2641 (Kagan, J., dissenting).Show More Even broadly worded, otherwise unambiguous statutes may not be good enough when it comes to policies the Court deems “major.”

At the same time, the Court has increasingly relied on three indicia of majorness, in addition to the costs imposed by the agency policy, to determine whether an agency rule is major. First, the Court has indicated that politically significant or controversial policies are more likely to be major and thus require clear authorization.10 10.See NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (quoting Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021)); West Virginia v. EPA, 142 S. Ct. at 2620 (Gorsuch, J., concurring) (explaining that an issue may be major where “certain States were considering” the issue or “when Congress and state legislatures were engaged in robust debates”); id. at 2614 (majority opinion).Show More Second, the Court has signaled that the novelty of a policy—i.e., the fact that the agency had never promulgated a similar policy before—is a reason to think that the policy is a major one.11 11.See West Virginia v. EPA, 142 S. Ct. at 2595–96 (invoking novelty of the regulation as an indicium of majorness); NFIB v. OSHA, 142 S. Ct. at 666 (“This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.” (internal quotation marks omitted) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010))).Show More Finally, the Court has considered the majorness of other, theoretically possible agency policies not actually before the Court but that might be supported by the agency’s broader rationale in determining whether the agency’s current claim of interpretive authority is major.12 12.See Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (using implications of agency’s theory of authority as indicia of majorness).Show More (Although we describe these developments in the doctrine at the Court, it is the Republican appointees on the Court who are in the majority in the relevant cases.)

This new major questions doctrine was most clearly on display in the Supreme Court’s end-of-term blockbuster decision in West Virginia v. EPA.13 13.142 S. Ct. at 2595.Show More There, the Court invoked the major questions doctrine to invalidate an EPA regulation requiring coal-fired power plants to adopt so-called “generation shifting” methods in order to shift production to cleaner sources of electricity.14 14.See id.; see also Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662, 64728 (Oct. 23, 2015).Show More The case was the first time the Court actually used the phrase “major questions doctrine,” and it represents the full emergence of the doctrine as a clear-statement rule.15 15.West Virginia v. EPA, 142 S. Ct. at 2634 (Kagan, J., dissenting). Justice Gorsuch labeled the doctrine as a clear statement rule in his concurrence. See id. at 2622 (Gorsuch, J., concurring).Show More The consequence is that “major” agency policies now require “clear congressional authorization”—even broadly worded, otherwise unambiguous statutes may not do.16 16.See id. at 2609 (majority opinion) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)).Show More

West Virginia v. EPA also displayed the Court’s new indicia of majorness—the criteria used to assess whether the doctrine applies. The Court made clear that the “political significance” of a rule is evidence of majorness,17 17.Id. at 2595 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)).Show More pointing to political disagreement over whether to adopt generation shifting programs.18 18.Id. at 2614 (“‘The importance of the issue,’ along with the fact that the same basic scheme EPA adopted ‘has been the subject of an earnest and profound debate across the country, . . . makes the oblique form of the claimed delegation all the more suspect.’” (quoting Gonzales v. Oregon, 546 U.S. 243, 267–68 (2006))).Show More The concurrence, which agreed with the Court’s application of the major questions doctrine, underscored that the agency’s rule was major because “certain States were considering” the issue and “Congress and state legislatures were engaged in robust debates.”19 19.Id. at 2620 (Gorsuch, J., concurring).Show More The Court also invoked the novelty of the agency’s regulatory approach in finding it to be a major one,20 20.See id. at 2596 (majority opinion).Show More and it considered the possible future implications of the agency’s theory of its statutory authority.21 21.See id. at 2612 (“[T]his argument does not so much limit the breadth of the Government’s claimed authority as reveal it.” (emphasis omitted)).Show More These trends continued in the October term 2022.22 22.See Biden v. Nebraska, 143 S. Ct. 2355 (2023).Show More

Understanding how the major questions doctrine operates today is important not only to bring a modicum of clarity to a doctrine often described as radically indeterminate.23 23.See, e.g., Heinzerling, supra note 2, at 1938–90 (describing uncertainty in the major questions doctrine); Gocke, supra note 2, at 1002 (describing the major questions doctrine as “illusory”); Coenen & Davis, supra note 3, at 809–10 (describing lack of clarity in the major questions doctrine); Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445, 448 (2016) (“More is unclear than clear about the bounds of the major questions doctrine at this stage.”); Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010) (describing a related interpretive principle as applied “haphazardly”); Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 217, 218 (2022) (“What constitutes a major question is as unclear today as it was when Justice Breyer wrote those words in 1986.”); Nathan Richardson, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, 108 Va. L. Rev. Online 174, 195 (2022) (“The most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary.”).Show More Unpacking the new major questions doctrine also allows us to normatively evaluate the doctrine on its own terms and to assess how it relates to, and enforces, previously understood institutional and political pathologies. And we will suggest that, judged in this manner, the doctrine does quite poorly.

This Article makes three principal contributions. The first is descriptive and synthetic: the Article offers the first account of how the new major questions doctrine operates in light of the Supreme Court’s decisions from October term 2021, showing how it has emerged as a clear-statement rule and cataloguing the new indicia of majorness.

The Article’s second contribution is analytic: identifying how the Court assesses majorness makes it easier to evaluate the new major questions doctrine and to critically assess its potential consequences. Specifically, we suggest that the Court’s new approach may allow present-day political controversy surrounding a policy to restrict authority that agencies would otherwise have under broadly worded statutes. This permits political parties and political movements more broadly—and whether as part of a conscious strategy or not—to effectively amend otherwise broad regulatory statutes by generating controversy surrounding an agency policy. This dynamic undermines the purported purpose of the doctrine, which is to channel policy disputes into legislatures.

The third contribution is more straightforwardly normative: unpacking the new major questions doctrine identifies how the doctrine reinforces previously identified pathologies of the American constitutional system and undermines public policy by hobbling delegations when they are most likely to be effective. We argue that the doctrine supplies an additional means for minority rule in a constitutional system that already skews toward minority rule. It provides an additional mechanism for courts to exercise what is essentially political oversight of statutes—inviting judges to opine on what policies are sufficiently controversial and thus require special authorization, an inquiry that may often depend on the judges’ own deeply held politics.24 24.Cf. Coenen & Davis, supra note 3, at 831 (arguing that lower courts’ application of the version of the major questions doctrine articulated in King v. Burwell raised “concerns about major political dysfunction and institutional breakdowns”).Show More And it operates to kneecap delegations to agencies in precisely the circumstances in which Congress may have had particular reason to delegate broad authority to agencies, all while supposedly simply doing statutory interpretation.

Now is an especially important time to unpack and assess the major questions doctrine. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade,25 25.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)).Show More the federal government is reportedly considering and undertaking some administrative responses to secure access to abortion, particularly medication abortion.26 26.See Shira Stein, Fiona Rutherford & Celine Castronuovo, White House Touts Abortion Pill as Answer to Roe Reversal but FDA Rules Limit Use, Bloomberg (June 30, 2022, 11:57 AM), https://www.bloomberg.com/news/articles/2022-06-30/white-house-touts-abortion-pill‌-as-answer-to-roe-reversal-but-fda-rules-limit-use [https://perma.cc/DWZ3-K25Z]; Dan Diamond & Rachel Roubein, Biden Official Vows Action on Abortion Following ‘Despicable’ Ruling, Wash. Post (June 28, 2022, 1:28 PM), https://www.washingtonpost.com/‌health/2022/06/28/abortion-access-becerra/ [https://perma.cc/4UKJ-GXJ9].Show More Possible responses include regulatory action by the FDA27 27.See U.S. Food & Drug Admin., Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information [https://perma.‌cc/G7Q4-VNU7] (last visited Jan. 24, 2023); U.S. Food & Drug Admin., Risk Evaluation and Mitigation Strategy (REMS) Single Shared System for Mifepristone 200MG (2019), https://www.accessdata.fda.gov/drugsatfda_docs/rems/Mifepristone_2021_05_14_REMS_Full.pdf [https://perma.cc/ULJ3-ZUET].Show More and declarations of public health emergencies under the Public Readiness and Emergency Preparedness Act.28 28.42 U.S.C. §§ 247d, 247d-6d(b)(1).Show More Both responses rely on statutory delegations to agencies.29 29.U.S. Gov’t Accountability Off., GAO-08-751, Approval and Oversight of the Drug Mifeprex 2 (2008), https://www.gao.gov/assets/ 280/279424.pdf [https://perma.cc/J63V-C6CY]; Memorandum from Ctr. for Drug Evaluation & Rsch. to Sandra P. Arnold, Vice President, Corp. Affs., Population Council, 1 (Sept. 28, 2000), https://www.accessdata.‌fda.gov/drugsatfda_docs/appletter/2000/20687appltr.pdf [https://perma.cc/36XJ-FFZA]; 21 U.S.C. § 355-1(a)(1), (f)(2); id. § 355(b)(1), (d); 42 U.S.C. § 247d-6d(b).Show More These agency responses may be evaluated under the major questions doctrine, making it important to understand what the doctrine is and how it might be applied.30 30.Original Complaint at 12, Texas v. Becerra, No. 22-cv-00185, 2022 WL 18034483 (N.D. Tex. Nov. 15, 2022), ECF No. 1 (challenging Department of Health and Human Services Secretary Becerra’s post-Dobbs guidance on major questions grounds).Show More

The Article proceeds in four Parts. Part I provides a brief overview of different judicial constraints on administrative agencies’ authority to interpret and implement federal statutes. Part II provides a synthesis of the new major questions doctrine, focusing on three recent cases, two from the Supreme Court’s most recent term and the third from August 2021. Part III then critically evaluates the new major questions doctrine. We conclude by arguing the new major questions doctrine erodes the bases for several recently offered justifications for the exercise of agency power—and, perhaps from the standpoint of the doctrine’s defenders, maybe that’s the whole point.

  1.  See West Virginia v. EPA, 142 S. Ct. 2587 (2022) (invoking major questions doctrine to invalidate EPA regulation designed to curb emissions from greenhouse gasses); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) [hereinafter NFIB v. OSHA] (invoking major questions doctrine to invalidate Occupational Safety and Health Administration (“OSHA”) regulation designed to address COVID-19). ↑
  2.  See, e.g., Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 994 (2022) (“The legal fictions underlying the major questions doctrine (specifically, the ‘major questions doctrine as Chevron step zero test’) and Chief Justice Roberts’ jurisdictional exception are poised to become the Court’s new nondelegation tests.”); Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (arguing that the Court’s earlier major questions cases diverted power to courts and away from administrative agencies). ↑
  3.  See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 787 (2017) (“Though it had precursors, the majorness inquiry first crystallized in FDA v. Brown & Williamson Tobacco Corp.”). ↑
  4.  See Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 481–83 (2021) [hereinafter Sunstein, Two “Major Questions” Doctrines] (arguing that the Court has deployed two different formulations of the doctrine). ↑
  5.  See Coenen & Davis, supra note 3, at 788–91 (describing doctrinal origins and operation). On Chevron, see infra notes 45–67 and accompanying text. ↑
  6.  See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 160 (2000) (rejecting the FDA’s attempt to regulate cigarettes in part because of the vast economic impacts of the tobacco industry and the “cryptic” statutory provision at issue). In a slightly different form, the doctrine operated to inform the courts’ analysis of whether the agency’s interpretation was a reasonable one. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014). ↑
  7.  576 U.S. 473, 485–86 (2015). ↑
  8.  See West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022) (Gorsuch, J., concurring) (describing the Court’s articulation of the major questions doctrine as a clear statement rule); id. at 2641 (Kagan, J., dissenting) (describing the major questions doctrine as a “get-out-of-text-free card[]”). ↑
  9.  See id. at 2633–34, 2641 (Kagan, J., dissenting). ↑
  10.  See NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (quoting Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021)); West Virginia v. EPA, 142 S. Ct. at 2620 (Gorsuch, J., concurring) (explaining that an issue may be major where “certain States were considering” the issue or “when Congress and state legislatures were engaged in robust debates”); id. at 2614 (majority opinion). ↑
  11.  See West Virginia v. EPA, 142 S. Ct. at 2595–96 (invoking novelty of the regulation as an indicium of majorness); NFIB v. OSHA, 142 S. Ct. at 666 (“This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.” (internal quotation marks omitted) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010))). ↑
  12.  See Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (using implications of agency’s theory of authority as indicia of majorness). ↑
  13.  142 S. Ct. at 2595. ↑
  14.  See id.; see also Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662, 64728 (Oct. 23, 2015). ↑
  15.  West Virginia v. EPA, 142 S. Ct. at 2634 (Kagan, J., dissenting). Justice Gorsuch labeled the doctrine as a clear statement rule in his concurrence. See id. at 2622 (Gorsuch, J., concurring). ↑
  16.  See id. at 2609 (majority opinion) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). ↑
  17.  Id. at 2595 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)). ↑
  18.  Id. at 2614 (“‘The importance of the issue,’ along with the fact that the same basic scheme EPA adopted ‘has been the subject of an earnest and profound debate across the country, . . . makes the oblique form of the claimed delegation all the more suspect.’” (quoting Gonzales v. Oregon, 546 U.S. 243, 267–68 (2006))). ↑
  19.  Id. at 2620 (Gorsuch, J., concurring). ↑
  20.  See id. at 2596 (majority opinion). ↑
  21.  See id. at 2612 (“[T]his argument does not so much limit the breadth of the Government’s claimed authority as reveal it.” (emphasis omitted)). ↑
  22.  See Biden v. Nebraska, 143 S. Ct. 2355 (2023). ↑
  23.  See, e.g., Heinzerling, supra note 2, at 1938–90 (describing uncertainty in the major questions doctrine); Gocke, supra note 2, at 1002 (describing the major questions doctrine as “illusory”); Coenen & Davis, supra note 3, at 809–10 (describing lack of clarity in the major questions doctrine); Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445, 448 (2016) (“More is unclear than clear about the bounds of the major questions doctrine at this stage.”); Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010) (describing a related interpretive principle as applied “haphazardly”); Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 217, 218 (2022) (“What constitutes a major question is as unclear today as it was when Justice Breyer wrote those words in 1986.”); Nathan Richardson, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, 108 Va. L. Rev. Online 174, 195 (2022) (“The most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary.”). ↑
  24.  Cf. Coenen & Davis, supra note 3, at 831 (arguing that lower courts’ application of the version of the major questions doctrine articulated in King v. Burwell raised “concerns about major political dysfunction and institutional breakdowns”). ↑
  25.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)). ↑
  26.  See Shira Stein, Fiona Rutherford & Celine Castronuovo, White House Touts Abortion Pill as Answer to Roe Reversal but FDA Rules Limit Use, Bloomberg (June 30, 2022, 11:57 AM), https://www.bloomberg.com/news/articles/2022-06-30/white-house-touts-abortion-pill‌-as-answer-to-roe-reversal-but-fda-rules-limit-use [https://perma.cc/DWZ3-K25Z]; Dan Diamond & Rachel Roubein, Biden Official Vows Action on Abortion Following ‘Despicable’ Ruling, Wash. Post (June 28, 2022, 1:28 PM), https://www.washingtonpost.com/‌health/2022/06/28/abortion-access-becerra/ [https://perma.cc/4UKJ-GXJ9]. ↑
  27.  See U.S. Food & Drug Admin., Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information [https://perma.‌cc/G7Q4-VNU7] (last visited Jan. 24, 2023); U.S. Food & Drug Admin., Risk Evaluation and Mitigation Strategy (REMS) Single Shared System for Mifepristone 200MG (2019), https://www.accessdata.fda.gov/drugsatfda_docs/rems/Mifepristone_2021_05_14_REMS_Full.pdf [https://perma.cc/ULJ3-ZUET]. ↑
  28.  42 U.S.C. §§ 247d, 247d-6d(b)(1). ↑
  29.  U.S. Gov’t Accountability Off., GAO-08-751, Approval and Oversight of the Drug Mifeprex 2 (2008), https://www.gao.gov/assets/ 280/279424.pdf [https://perma.cc/J63V-C6CY]; Memorandum from Ctr. for Drug Evaluation & Rsch. to Sandra P. Arnold, Vice President, Corp. Affs., Population Council, 1 (Sept. 28, 2000), https://www.accessdata.‌fda.gov/drugsatfda_docs/appletter/2000/20687appltr.pdf [https://perma.cc/36XJ-FFZA]; 21 U.S.C. § 355-1(a)(1), (f)(2); id. § 355(b)(1), (d); 42 U.S.C. § 247d-6d(b). ↑

  30.  Original Complaint at 12, Texas v. Becerra, No. 22-cv-00185, 2022 WL 18034483 (N.D. Tex. Nov. 15, 2022), ECF No. 1 (challenging Department of Health and Human Services Secretary Becerra’s post-Dobbs guidance on major questions grounds). ↑

Reconsidering The Legal Definition of Gambling: A Resuscitation of the Gambling Instinct Test

The modern chance-based test for gambling is fundamentally flawed. It is descriptively inaccurate, difficult to apply, and easily circumvented. Despite these shortcomings, the test is by-and-large the only test employed for the identification of gambling activity. But this was not always the case. In the first part of the twentieth century, some courts employed a competing test that looked to the underlying psychological phenomenon rather than the mechanical form of the activity. This Note advocates for a re-adoption of that test. The modern test, originally put forth as the definition of a lottery, was never intended to be a test for gambling. Over time, courts warped this definition to the point where many forms of gambling could reasonably be deemed a “lottery,” blurring the distinctions between gambling and lotteries to such a degree that some states’ highest courts have held that the two terms are synonymous.

The competing test—referred to by modern academics as “the Gambling Instinct Test”—has been understudied and mischaracterized by the literature. Admittedly, the decisions applying the test were unstructured in their analysis; however, closer examination of those cases reveals that the test can be distilled into two steps: (1) whether there exists a contingent contract, and (2) whether the prospect of receiving a return of disproportionate value induced the gambling party into conveying her consideration. As so refined, resuscitation of the Gambling Instinct Test would bring the legal doctrine in lockstep with medical conceptions of gambling. Given the explosion of gambling activity in recent years, such a change has never been more necessary.

Introduction

As one of the traditional vices, gambling has long been regulated by governments.1 1.See Nat’l Inst. L. Enf’t & Crim. Just., U.S. Dep’t of Just., The Development of the Law of Gambling: 1776–1976, at 4–13 (1977) [hereinafter Development of the Law of Gambling].Show More During the post-medieval period in England, gambling in and of itself was not unlawful, but the law tried to address its collateral consequences, such as the disruption of the public peace and members of the aristocracy gambling away their estates.2 2.Id. at 39–41, 240.Show More In early colonial America, the justification for and degree of regulation varied widely, from the wholesale condemnation of gambling as a form of idleness in Puritan Massachusetts, to more permissive laws in the southern colonies that only dealt with the evils of gambling as they arose.3 3.See I. Nelson Rose, Gambling and the Law: The Third Wave of Legal Gambling, 17 Vill. Sports & Ent. L.J. 361, 368–74 (2010).Show More Since those early days, gambling has twice gone through cycles of legalization and prohibition.4 4.Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1481 (2018). Thirty-six states and the District of Columbia have legalized sports betting since that decision, and a number of other states are currently in the process of legalization. Will Yakowicz, Where Is Sports Betting Legal? A Guide to All 50 States, Forbes (Jan. 9, 2023, 12:48 PM), https://www.forbes.com/sites/willyakowicz/2022/01/07/where-is-sports-betting-legal-americ‌a-2022/ [https://perma.cc/Y67H-4SNL].Show More Given the rapid legalization of sports betting at the state level that has occurred in the years following the Supreme Court’s landmark decision that a federal statute’s prohibition on state authorization of sports betting violated the anti-commandeering principle,5 5.See Rose, supra note 4, at 374–75 (tracing the third wave of legal gambling back to the early 1930s).Show More we appear to be approaching the crest of what one prominent gambling law scholar terms “the third wave of legal gambling.”6 6.Roland J. Santoni, An Introduction to Nebraska Gaming Law, 29 Creighton L. Rev. 1123, 1129 (1996) (citing examples of such cases from a number of states); D.A. Norris, Annotation, What Are Games of Chance, Games of Skill, and Mixed Games of Chance and Skill, 135 A.L.R. 104, 107 (1941) (“In construing statutes or ordinances prohibiting gaming, gambling, or gambling devices wherein nothing is said about chance or a game of chance or skill, many courts have required, inter alia, the element of chance to be involved.”).Show More

Although gambling in the modern-day United States is primarily defined by statute, courts, “concerned that clever operators would find ways to subvert the [statutory] prohibitions,” have frequently held that a game or activity constituted gambling if the three elements of the common law definition—Prize/Chance/Consideration—were present.7 7.See, e.g., N.J. Stat. Ann. § 2C:37-1(b) (West 2023).Show More Many modern state statutes now utilize this definition, often with slight variations.8 8.See 347 U.S. 284, 290 (1954).Show More However, this definition should not apply to all forms of gambling—nor was it originally intended to. The case most often cited in support for this definition, FCC v. American Broadcasting Co., was defining a “lottery, gift enterprise, or similar scheme,” not gambling writ large.9 9.See, e.g., Phalen v. Virginia, 49 U.S. (8 How.) 163, 168 (1850) (“Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pestilence of lotteries.”).Show More Historically, lotteries have been recognized as a distinct form of gambling, not as an interchangeable term.10 10.Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Alex Rodriguez, a Monkey, and the Game of Scrabble: The Hazard of Using Illogic to Define the Legality of Games of Mixed Skill and Chance, 57 Drake L. Rev. 383, 390–91 (2009) [hereinafter Cabot et al., Mixed Skill and Chance]; Anthony N. Cabot & Louis V. Csoka, The Games People Play: Is It Time for a New Legal Approach to Prize Games?, 4 Nev. L.J. 197, 202 (Winter 2003–2004) [hereinafter Cabot & Csoka, The Games People Play].Show More Accordingly, in using this definition to evaluate all forms of gambling, courts have stretched and twisted the three elements in order to fit their intuitions of whether a gambling-like activity should be prohibited or not.

Chance is the most consistently problematic element from this definitional framework. The prevailing test for the chance element is the Dominant Factor Test: if the winner is determined predominantly by chance, as opposed to skill, then the activity is gambling.11 11.For instance, Haralabos Voulgaris has made millions as both a professional sports bettor and poker player, and he parlayed his success using statistical models in sports gambling into becoming the Director of Quantitative Research and Development for the Dallas Mavericks. See Marton, Haralabos Voulgaris’s Life: Biggest Profits, Losses, Private Life & Net Worth, So Much Poker (Aug. 20, 2020), https://somuchpoker.com/haralabos-voulgaris-life-biggest-profits-losses-private-life-net-worth/ [https://perma.cc/Z9CU-JKNQ].Show More Although appealing at first glance, the chance/skill dichotomy is a nebulous concept. Various paradigmatic forms of gambling, such as poker and sports wagering, have such a material skill component that highly skilled gamblers have been able to make a substantial living off of their pursuits.12 12.See Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85, 87 (Nev. 1961).Show More On the other hand, certain “games of skill”—such as common carnival games or hole-in-one contests—can be structured so as to create games where the luck component predominates over the skill component, even for the most skilled participants.13 13.See, e.g., Indoor Recreation Enters. v. Douglas, 235 N.W.2d 398, 400–01 (Neb. 1975) (upholding a ruling that chess and checkers—paradigmatic examples of games of skill—are games of chance).Show More Even outside of these edge cases, the chance element has proved to be sufficiently confusing for courts in the analog context.14 14.See Yash Nair, What Does RNG Mean in Gaming?, DOT Esports (July 12, 2022, 11:16 AM), https://dotesports.com/general/news/what-does-rng-mean-in-gaming [https://perma.cc/H2DH-XLU7] (describing how video games use random number generators in which an algorithm decides a number value that determines certain in-game outcomes).Show More Given the importance of random number generation to the outcome of e‑sports contests, the chance element is bound to cause even greater confusion in the coming years.15 15.Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Economic Value, Equal Dignity and the Future of Sweepstakes, 1 UNLV Gaming L.J. 1, 10–15 (2010) [hereinafter Cabot et al., Future of Sweepstakes] (citing FCC v. Am. Broad. Co., 347 U.S. 284, 296 (1954)).Show More

The other two elements, consideration and prize, have seen difficulties as well. Although consideration is a well‑defined concept in contract law, the Supreme Court in FCC v. American Broadcasting Co. departed from the so-called “contract theory” of consideration in favor of what is now referred to as the Economic Value Test, which many states have subsequently adopted.16 16.See Cabot et al., Future of Sweepstakes, supra note 16, at 23–36.Show More There has been continual debate and disagreement over how to evaluate non-monetary consideration and the possibility of free entry under this test.17 17.See Mark D. Griffiths, Is the Buying of Loot Boxes in Video Games a Form of Gambling or Gaming?, 22 Gaming L.R. 52, 53 (2018). The loot box mechanism works as follows: “Players use real money to buy virtual in-game items and can redeem such items by buying keys to open the boxes where they receive a chance selection of further virtual items.” Id. at 52.Show More Prize has come under less scrutiny historically, but has recently come to the forefront in the debate over whether video game loot boxes should be considered gambling schemes.18 18.U.K. Gambling Commission, Virtual Currencies, eSports and Social Casino Gaming – Position Paper ¶ 3(17)–(18) (2017), https://assets.ctfassets.net/j16ev64qyf6l/4A644HIpG1‌g2ymq11HdPOT/ca6272c45f1b2874d09eabe39515a527/Virtual-currencies-eSports-and-soci‌al-casino-gaming.pdf [https://perma.cc/2HL8-E9FX] (“Where prizes are successfully restricted for use solely within the game, such in-game features would not be licensable gambling, notwithstanding the elements of expenditure and chance.”).Show More The U.K. Gambling Commission declined to designate these loot boxes as a form of gambling because they did not view the in-game items awarded as prizes to have any real-life value outside of the game.19 19.The Federalist No. 37, at 180 (James Madison) (George W. Carey & James McClellan eds., 2001).Show More Though the current definition of gambling can be summed up in a pithy phrase, its application in practice misses the forest for the trees.

A critical threshold in any system of regulation is the identification of the regulated activity. The modern application of Prize/Chance/Consideration has often resulted in normative policy judgments being made simultaneously with the classification of the activity—a fundamental misstep. Although we may now find that the outright prohibition of vices like gambling creates more harms than it prevents, we, as James Madison once warned, “ought not to assume an infallibility in rejudging the fallible opinions of others.”20 20.See Cabot et al., Mixed Skill and Chance, supra note 11, at 393–94.Show More Separating classification from moralization would better allow a regulatory scheme to adjust to changes in information, custom, and societal attitudes.

In lieu of the modern framework, this Note advocates for a modern revitalization of the Gambling Instinct Test, which simply looks to whether the activity in question triggers one’s gambling instinct.21 21.See Jim Leitzel, Regulating Vice, in The Handbook of Deviance 45, 46 (Erich Goode ed., 2015).Show More The Gambling Instinct Test is a superior doctrine because it homes in on the central harm‑causing mechanism of gambling. Like other vices, gambling is “prone to excess” and “particularly likely to compromise rational decision-making,” even amongst non-addicted adults.22 22.213 N.W. 335, 339 (Wis. 1927).Show More As described in City of Milwaukee v. Johnson:

The machine makes an appeal to the gambling instinct, because the player has constantly before him the chance that the next play will assure him of the right on the next succeeding play to secure from 2 to 20 trade checks. Were it not for this appeal to the gambling instinct, these machines, which attempt to adhere to the letter of the law while violating its spirit, would never have been placed upon the market.23 23.See Cabot et al., Future of Sweepstakes, supra note 16, at 4–5.Show More

The Gambling Instinct Test is typically associated with the deontological view of gambling: that gambling is a sin and inconsistent with a moral society.24 24.See, e.g., Mills-Jennings of Ohio, Inc. v. Dep’t of Liquor Control, 435 N.E.2d 407, 409–10 (Ohio 1982) (detailing Ohio’s shift away from an anti-gambling public policy).Show More This test, peaking in usage in the 1930s, has mostly fallen out of favor since the 1950s, alongside the broad changes to society’s moral judgment of gambling that occurred in that time period.25 25.See Cabot et al., Mixed Skill and Chance, supra note 11, at 394.Show More The Gambling Instinct Test has also been criticized for being a highly subjective test that “can vary widely in its application to particular games.”footnote_id_27_26 In light of these considerations, it may seem counterintuitive that this test would be a good fit for the modern era, where paternalistic legislation of morality is increasingly disfavored and more objective judicial methodologies are preferred. However, a broad, flexible definition better enables a smart, robust system of regulation than the illogical application of the current doctrine.

The Gambling Instinct Test is justly maligned for its subjectivity. This Note attempts to ameliorate this defect by providing more color to what it means to “appeal to the gambling instinct,” first by delving deep into the cases which applied this test, and then by drawing from empirical research to find evidentiary indicators of when that instinct is being stimulated. But before doing so, some background on the current doctrinal definition is needed.

  1.  The earliest English anti-gambling statute was enacted by King Richard II in 1388. R. Randall Bridwell & Frank L. Quinn, From Mad Joy to Misfortune: The Merger of Law and Politics in the World of Gambling, 72 Miss. L.J. 565, 622–23 (2002) (citing 1388, 12 Rich. 2 c. 6 (Eng.)). Records from third-century India indicate that there was a governmental department responsible for the regulation of gambling during the reign of Chandragupta Maurya. Ronald J. Rychlak, Lotteries, Revenues and Social Costs: A Historical Examination of State-Sponsored Gambling, 34 B.C. L. Rev. 11, 16 (1992) (citing Will Durant, Our Oriental Heritage 444 (1954)); Vincent A. Smith, The Oxford History of India 78 & n.2 (1919) (citing Arthasāstra bk. 3, ch. 20). ↑
  2.  See Nat’l Inst. L. Enf’t & Crim. Just., U.S. Dep’t of Just., The Development of the Law of Gambling: 1776–1976, at 4–13 (1977) [hereinafter Development of the Law of Gambling]. ↑
  3.  Id. at 39–41, 240. ↑
  4.  See I. Nelson Rose, Gambling and the Law: The Third Wave of Legal Gambling, 17 Vill. Sports & Ent. L.J. 361, 368–74 (2010). ↑
  5.  Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1481 (2018). Thirty-six states and the District of Columbia have legalized sports betting since that decision, and a number of other states are currently in the process of legalization. Will Yakowicz, Where Is Sports Betting Legal? A Guide to All 50 States, Forbes (Jan. 9, 2023, 12:48 PM), https://www.forbes.com/sites/willyakowicz/2022/01/07/where-is-sports-betting-legal-americ‌a-2022/ [https://perma.cc/Y67H-4SNL]. ↑
  6.  See Rose, supra note 4, at 374–75 (tracing the third wave of legal gambling back to the early 1930s). ↑
  7.  Roland J. Santoni, An Introduction to Nebraska Gaming Law, 29 Creighton L. Rev. 1123, 1129 (1996) (citing examples of such cases from a number of states); D.A. Norris, Annotation, What Are Games of Chance, Games of Skill, and Mixed Games of Chance and Skill, 135 A.L.R. 104, 107 (1941) (“In construing statutes or ordinances prohibiting gaming, gambling, or gambling devices wherein nothing is said about chance or a game of chance or skill, many courts have required, inter alia, the element of chance to be involved.”). ↑
  8.  See, e.g., N.J. Stat. Ann. § 2C:37-1(b) (West 2023). ↑
  9.  See 347 U.S. 284, 290 (1954). ↑
  10.  See, e.g., Phalen v. Virginia, 49 U.S. (8 How.) 163, 168 (1850) (“Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pestilence of lotteries.”). ↑
  11.  Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Alex Rodriguez, a Monkey, and the Game of Scrabble: The Hazard of Using Illogic to Define the Legality of Games of Mixed Skill and Chance, 57 Drake L. Rev. 383, 390–91 (2009) [hereinafter Cabot et al., Mixed Skill and Chance]; Anthony N. Cabot & Louis V. Csoka, The Games People Play: Is It Time for a New Legal Approach to Prize Games?, 4 Nev. L.J. 197, 202 (Winter 2003–2004) [hereinafter Cabot & Csoka, The Games People Play]. ↑
  12.  For instance, Haralabos Voulgaris has made millions as both a professional sports bettor and poker player, and he parlayed his success using statistical models in sports gambling into becoming the Director of Quantitative Research and Development for the Dallas Mavericks. See Marton, Haralabos Voulgaris’s Life: Biggest Profits, Losses, Private Life & Net Worth, So Much Poker (Aug. 20, 2020), https://somuchpoker.com/haralabos-voulgaris-life-biggest-profits-losses-private-life-net-worth/ [https://perma.cc/Z9CU-JKNQ]. ↑
  13.  See Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85, 87 (Nev. 1961). ↑
  14.  See, e.g., Indoor Recreation Enters. v. Douglas, 235 N.W.2d 398, 400–01 (Neb. 1975) (upholding a ruling that chess and checkers—paradigmatic examples of games of skill—are games of chance). ↑
  15.  See Yash Nair, What Does RNG Mean in Gaming?, DOT Esports (July 12, 2022, 11:16 AM), https://dotesports.com/general/news/what-does-rng-mean-in-gaming [https://perma.cc/H2DH-XLU7] (describing how video games use random number generators in which an algorithm decides a number value that determines certain in-game outcomes). ↑
  16.  Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Economic Value, Equal Dignity and the Future of Sweepstakes, 1 UNLV Gaming L.J. 1, 10–15 (2010) [hereinafter Cabot et al., Future of Sweepstakes] (citing FCC v. Am. Broad. Co., 347 U.S. 284, 296 (1954)). ↑
  17.  See Cabot et al., Future of Sweepstakes, supra note 16, at 23–36. ↑
  18.  See Mark D. Griffiths, Is the Buying of Loot Boxes in Video Games a Form of Gambling or Gaming?, 22 Gaming L.R. 52, 53 (2018). The loot box mechanism works as follows: “Players use real money to buy virtual in-game items and can redeem such items by buying keys to open the boxes where they receive a chance selection of further virtual items.” Id. at 52. ↑
  19.  U.K. Gambling Commission, Virtual Currencies, eSports and Social Casino Gaming – Position Paper ¶ 3(17)–(18) (2017), https://assets.ctfassets.net/j16ev64qyf6l/4A644HIpG1‌g2ymq11HdPOT/ca6272c45f1b2874d09eabe39515a527/Virtual-currencies-eSports-and-soci‌al-casino-gaming.pdf [https://perma.cc/2HL8-E9FX] (“Where prizes are successfully restricted for use solely within the game, such in-game features would not be licensable gambling, notwithstanding the elements of expenditure and chance.”). ↑
  20.  The Federalist No. 37, at 180 (James Madison) (George W. Carey & James McClellan eds., 2001). ↑
  21.  See Cabot et al., Mixed Skill and Chance, supra note 11, at 393–94. ↑
  22.  See Jim Leitzel, Regulating Vice, in The Handbook of Deviance 45, 46 (Erich Goode ed., 2015). ↑
  23.  213 N.W. 335, 339 (Wis. 1927). ↑
  24.  See Cabot et al., Future of Sweepstakes, supra note 16, at 4–5. ↑
  25.  See, e.g., Mills-Jennings of Ohio, Inc. v. Dep’t of Liquor Control, 435 N.E.2d 407, 409–10 (Ohio 1982) (detailing Ohio’s shift away from an anti-gambling public policy). ↑

  26.  See Cabot et al., Mixed Skill and Chance, supra note 11, at 394. ↑

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