Article

Arbitration Exceptionalism

In Morgan v. Sundance, Inc., the Supreme Court addressed a question that has arisen frequently in recent years: If a party initially pursues litigation instead of immediately invoking the right to arbitrate pursuant to a contractual agreement, at what point can it be deemed to have waived arbitration? In deference to the judicially created “federal policy favoring arbitration,” the U.S. Court of Appeals for the Eighth Circuit had required a showing that plaintiff suffered prejudice as the result of defendant’s foot-dragging. Unanimously reversing this prejudice requirement—which had been the rule in nearly every circuit—the Justices emphatically declared that arbitration agreements be treated no differently from other contractual terms. Writing for the Court, Justice Kagan explicitly cautioned courts against “invent[ing] special, arbitration-preferring procedural rules.”

Morgan marks a reversal to what has become a hallmark of modern arbitration jurisprudence: arbitration exceptionalism. For decades, federal courts have developed a body of rules that elevate arbitration agreements above ordinary contract law, often in direct conflict with statutory and doctrinal norms. From doctrines allowing non-signatories to enforce arbitration clauses under the banner of “equitable estoppel,” to permissive interpretations of browse-wrap and unilateral terms, to unique severability standards applied only in aid of arbitration, exceptional rules have reshaped contemporary doctrines governing arbitration. By signaling an end to arbitration exceptionalism, Morgan paves the way for a critical reexamination of these doctrines and a restoration of parity between arbitration and other contractual arrangements.

Introduction

The legal dispute resolved by the Supreme Court in Morgan v. Sundance, Inc. began simply enough: Morgan, an hourly employee at a Taco Bell franchise owned by Sundance, brought a nationwide collective action against her employer alleging overtime violations in contravention of the Fair Labor Standards Act (“FLSA”).1 1.Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1711 (2022) (citing the Fair Labor Standards Act, 29 U.S.C. § 207(a) (setting maximum-hours standards for covered employees)).Show More While Morgan’s job application mandated that all disputes between the parties were subject to arbitration, Sundance pursued litigation instead, filing an unsuccessful motion to dismiss, answering the complaint, and participating in mediation—all without invoking the parties’ arbitration agreement.2 2.Id.Show More Then, eight months after Morgan had filed her complaint—and on the eve of the pretrial conference—Sundance abruptly changed course and moved to compel arbitration.3 3.Id.Show More

Morgan opposed the motion, arguing that Sundance had waived its right to arbitrate by actively litigating the FLSA claim in Iowa federal court, and that it was only after the judicial avenue had lost its luster that the defendant pivoted to arbitration.4 4.Morgan v. Sundance, Inc., No. 18-cv-00316, 2019 WL 5089205, at *7 (S.D. Iowa June 28, 2019) (“[T]he timing of Sundance’s actions demonstrates that it ‘wanted to play heads I win, tails you lose,’ which ‘is the worst possible reason’ for failing to move for arbitration sooner than it did.” (internal quotation marks omitted) (citations omitted)), rev’d, 992 F.3d 711 (8th Cir. 2021), vacated, 142 S. Ct. 1708 (2022).Show More The U.S. District Court for the Southern District of Iowa agreed, observing that Sundance had invoked “the litigation machinery” by waiting eight months to assert its contractual right to arbitrate.5 5.Id. at *6 (quoting Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007)).Show More Applying traditional waiver principles—where the focus is on a party’s actions rather than on the prejudice to the opposing party—the district court held that Sundance’s conduct was inconsistent with its contractual right to arbitrate.6 6.Id.at *7 (“Sundance failed to mention the arbitration agreement in its answer, which listed numerous (fourteen) other affirmative defenses.” (citing Messina v. N. Cent. Distrib., Inc., 821 F.3d 1047, 1050 (8th Cir. 2016))); Lewallen, 487 F.3d at 1091 (“To safeguard its right to arbitration, a party must ‘do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration.’” (citation omitted)).Show More

On its face, the district court’s ruling seemed uncontroversial. After all, courts routinely find that parties have waived certain rights in analogous procedural contexts. For instance, it is well-settled that a defendant waives the benefit of a forum selection clause when, upon being sued in a non-designated forum, it tests the waters by engaging in litigation activities rather than moving straightaway to transfer venue.7 7.Courts generally find that removal to and “active” litigation in a forum different from the one designated in a contract between the parties waive the right to later assert a forum selection clause. See, e.g., San Miguel Produce, Inc. v. L.G. Herndon Jr. Farms, Inc., Nos. 16-cv-00035, 16-cv-00043, 2016 WL 6403964, at *3 (S.D. Ga. Oct. 27, 2016) (“[Defendant] acted inconsistently with the forum-selection clause when, on its own accord, it chose to pursue its claims in an improper forum.”).Show More Courts likewise do not hesitate to find that a party waives its right to challenge personal jurisdiction or venue when it litigates without objection in a distant forum.8 8.See, e.g.,Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (noting that because personal jurisdiction “‘represents a restriction on judicial power . . . as a matter of individual liberty[,]’ . . . a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court’s exercise of adjudicatory authority” (first alteration in original) (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982))); Fed. R. Civ. P. 12(h)(1) (“A party waives any defense listed in Rule 12(b)(2)–(5) by: . . . failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.”).Show More Even the constitutionally protected right to a jury trial may be waived by a party who fails to make a timely demand.9 9.See, e.g., Fed. R. Civ. P. 38(d) (“A party waives a jury trial unless its demand is properly served and filed.”); see also Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848–49 (1986) (explaining that the Seventh Amendment guarantee, “as a personal right, . . . is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil . . . matters must be tried”); Rodenbur v. Kaufmann, 320 F.2d 679, 683–84 (D.C. Cir. 1963) (“[A] jury trial lawfully may be waived . . . by inaction . . . .”); Bank of N.Y. Mellon v. Riley, No. 19-cv-00279, 2021 WL 2688615, at *2 (E.D. Tex. Feb. 17, 2021) (finding waiver where a party waited fifteen months to oppose a jury demand).Show More Across these contexts, waiver principles are straightforward: courts focus on whether the party asserting the right acted inconsistently with that right. Yet in the context of arbitration, a starkly different framework emerged—one rooted in arbitration exceptionalism.

For decades, courts justified special rules governing waiver of arbitration rights by invoking the oft-repeated “federal policy favoring arbitration.” Under this policy, courts imposed a heightened burden on plaintiffs opposing arbitration, requiring them to prove that a defendant’s delay or inconsistent litigation conduct caused them “prejudice.”10 10.At the time Morgan was decided, nine circuits required plaintiffs to establish prejudice where a defendant sought to compel arbitration after a period of active litigation. See, e.g., In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d 41, 44 (1st Cir. 2005); Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968); PaineWebber Inc. v. Faragalli, 61 F.3d 1063, 1069 (3d Cir. 1995); Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d 690, 702 (4th Cir. 2012); Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986); O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 357 (6th Cir. 2003); Erdman Co. v. Phx. Land & Acquisition, LLC, 650 F.3d 1115, 1117 (8th Cir. 2011); ATSA of Cal., Inc. v. Cont’l Ins. Co., 702 F.2d 172, 175 (9th Cir. 1983), amended by, 754 F.2d 1394 (9th Cir. 1985); Citibank, N.A. v. Stok & Assocs., P.A., 387 F. App’x 921, 924–25 (11th Cir. 2010) (per curiam), cert. granted, 562 U.S. 1215 (mem.), and cert. dismissed, 563 U.S. 1029 (2011) (mem.). Only the U.S. Courts of Appeals for the Seventh and D.C. Circuits treated waiver of the right to arbitrate like the waiver of any other contractual right by focusing solely on the defendant’s actions, with no explicit requirement that the plaintiff show prejudice from those actions. See St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 590 (7th Cir. 1992); Nat’l Found. for Cancer Rsch. v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 777 (D.C. Cir. 1987).Show More This prejudice requirement—a rule applicable only in arbitration cases—had become entrenched in modern jurisprudence, effectively shielding arbitration agreements from the application of ordinary waiver principles.11 11.See, e.g.,Brevard v. Credit Suisse, No. 23-cv-00428, 2024 WL 36991, at *8 (S.D.N.Y. Jan. 3, 2024) (“Unlike in ordinary cases . . . concerning the waiver of contractual rights, prejudice was the sine qua non for waiver of the right to arbitrate.”).Show More The heavy burden imposed on plaintiffs, these courts postulated, ensured that “any doubts concerning the scope of arbitrable issues [would] be resolved in favor of arbitration.”12 12.Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983).Show More

Applying this prejudice test, a divided U.S. Court of Appeals for the Eighth Circuit reversed the district court and granted Sundance’s motion to compel arbitration, finding that plaintiff had failed to establish that she had suffered any real prejudice from the defendant’s eight-month delay in invoking arbitration.13 13.Morgan v. Sundance, Inc., 992 F.3d 711, 715 (8th Cir. 2021). But see id. at 716 (Colloton, J., dissenting) (observing that outside the arbitration context, plaintiffs are not required to demonstrate either prejudice or detrimental reliance to establish waiver).Show More With a thumb squarely on the scale favoring arbitration, the majority concluded that Sundance had not forfeited its contractual right to arbitrate.14 14.Id. at 715 (majority opinion).Show More

Then, a surprising thing happened: the Supreme Court granted certiorari and unanimously reversed the circuit court decision.15 15.The result in Morgan was unexpected given the Supreme Court’s consistent pro-arbitration stance over the past twenty years. Moreover, the Court has found workers exempt from arbitration under Section 1 of the Federal Arbitration Act (“FAA”) in only three cases. SeeNew Prime Inc. v. Oliveira, 139 S. Ct. 532, 543–44 (2019); Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1793 (2022); Bissonnette v. LePage Bakeries Park St., LLC, 144 S. Ct. 905, 913 (2024).Show More Rejecting the prejudice requirement, the Court declared that an arbitration agreement must be treated the same as any other contractual provision. Writing for the Court, Justice Kagan explained that the much-cited “federal policy favoring arbitration” was never meant to grant arbitration agreements special procedural advantages.16 16.Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1712–13 (2022) (remarking that the Court’s use of the “phrase” referencing a federal pro-arbitration policy was “merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate” (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010))).Show More Rather, it reflected only a commitment to ending the early twentieth-century hostility toward arbitration by making arbitration agreements just as enforceable as other contracts, “but not more so.”17 17.Id.at 1713 (citation omitted); see also id. (“The federal policy is about treating arbitration contracts like all others, not about fostering arbitration.”). The Morgan Court explained that this arbitration-specific prejudice rule originated with the “decades-old” decision in Carcich v. Rederi A/B Nordie, where the Second Circuit recognized that “an overriding federal policy favoring arbitration” demanded a heavy burden be placed on those alleging waiver. Id.; Carcich, 389 F.2d 692, 696 (2d Cir. 1968). The Supreme Court observed that Carcich’s “rule and . . . reasoning spread” over the years, until most federal circuit courts had adopted a prejudice requirement for establishing waiver, relying on a policy favoring arbitration over litigation. Morgan, 142 S. Ct. at 1713.Show More Courts, Justice Kagan warned, should not be in the business of inventing “special, arbitration-preferring procedural rules” that “tilt the playing field” in favor of arbitration.18 18.Morgan, 142 S. Ct. at 1713–14; see also id. at 1714 (observing that “the FAA makes clear that courts are not to create arbitration-specific procedural rules” (citing9 U.S.C. § 6 (providing that any application under the statute “shall be made and heard in the manner provided by law for the making and hearing of motions”))).Show More Accordingly, “[i]f an ordinary procedural rule—whether of waiver or forfeiture or what-have-you—would counsel against enforcement of an arbitration contract, then so be it.”19 19.Id.at 1713.Show More

Thus, where defendants “engage in months, or even years, of litigation—filing motions to dismiss, answering complaints, and discussing settlement—before deciding they would fare better in arbitration,” courts should evaluate a “request to switch to arbitration” as they would any other litigation strategy.20 20.Id.at 1711.Show More Specifically, courts must determine whether the defendant’s conduct demonstrates a clear and intentional relinquishment of a known right to arbitrate. On this view, the prejudice requirement applied by the Eighth Circuit exemplified the very kind of arbitration exceptionalism deemed unacceptable under the Court’s jurisprudence and the terms of the Federal Arbitration Act (“FAA”) itself.21 21.Id.at 1713–14.Show More Accordingly, the Court directed the Eighth Circuit, along with ten other courts of appeals, to “[s]trip[]” the arbitration-waiver test of its prejudice requirement and ask only whether the defendant “knowingly relinquish[ed] the right to arbitrate by acting inconsistently with that right.”22 22.Id. at 1714.Show More This approach, the Court declared, allows the waiver of arbitration rights to be determined in the same manner as the waiver of other contractual rights.23 23.Id. (characterizing its decision as “[a] directive to a federal court to treat arbitration applications ‘in the manner provided by law’ for all other motions,” which “is simply a command to apply the usual federal procedural rules” (quoting 9 U.S.C. § 6)).Show More

At a doctrinal level, Morgan breathed new life into waiver as a basis for resisting arbitration requirements.24 24.See id. at 1713 (explaining that the focus of waiver is “on the actions of the person who held the right,” not “the effects of those actions on the opposing party,” so the question boils down to whether a party has “intentional[ly] relinquish[ed] or abandon[ed] . . . a known right” (quoting United States v. Olano, 507 U.S. 725, 733 (1993))).Show More In its wake, lower courts are confronting a host of knotty questions concerning the abdication of arbitration rights. For instance, at what point does a party’s litigation-related activities evince a clear intent to waive the arbitration right?25 25.See, e.g.,Doyle v. UBS Fin. Servs., Inc., 144 F.4th 122, 128 n.5 (2d Cir. 2025) (collecting cases defining the point at which a party’s conduct in court signals a clear intention to relinquish the arbitration right).Show More And now that prejudice is off the table, what other factors may courts consider in determining whether a party waived its right to arbitrate?26 26.See, e.g., Garcia v. Fuentes Rest. Mgmt. Servs. Inc., 141 F.4th 671, 677–80 (5th Cir. 2025) (outlining post-Morgan factors relevant to waiver, including participation in discovery and mediation, answering the complaint, and delaying a motion to compel arbitration).Show More Should state or federal law be applied to determine the waiver of arbitration rights governed by the FAA?27 27.See Morgan, 142 S. Ct.at 1712 (acknowledging disagreement “about the role state law might play in resolving when a party’s litigation conduct results in the loss of a contractual right to arbitrate”). A further complication is that, in some states, courts themselves disagree over whether prejudice is required to establish waiver of the right to arbitrate. CompareWagner Constr. Co. v. Pac. Mech. Corp., 157 P.3d 1029, 1035(Cal. 2007) (noting that prejudice is but one factor a court can consider in determining whether a party has waived their right to arbitration), with Lewis v. Fletcher Jones Motor Cars, Inc., 140 Cal. Rptr. 3d 206, 220 (Ct. App. 2012) (stating that prejudice is required).Show More These and many other issues are now percolating through state and federal courts; as one judge aptly observed, “The law in this area is undergoing a course correction.”28 28.Lamonaco v. Experian Info. Sols., Inc., No. 23-cv-01326, 2024 WL 1703112, at *7 (M.D. Fla. Apr. 19, 2024),rev’d, 141 F.4th 1343 (11th Cir. 2025); see alsoGaudreau v. My Pillow, Inc., No. 21-cv-01899, 2022 WL 3098950, at *6 (M.D. Fla. July 1, 2022) (“In light of Morgan, this Court must start anew in developing a rule for waiver of arbitration agreements.”); Pumphrey v. Triad Life Scis. Inc., No. 23-cv-00299, 2024 WL 69914, at *3 (N.D. Miss. Jan. 5, 2024) (“It seems possible that Morgan will, in fact, cause the Fifth Circuit to take a fresh look at its arbitration waiver jurisprudence . . . .”), rev’d, No. 24-60028, 2024 WL 4100495 (5th Cir. Sep. 6, 2024).Show More For now, it appears that consensus on these questions may be some ways off, and further Supreme Court engagement on arbitration-waiver questions would not be surprising.29 29.See, e.g.,Petition for a Writ of Certiorari at 1, Oceltip Aviation 1 Pty Ltd. v. Gulfstream Aerospace Corp., 143 S. Ct. 577 (2023) (mem.) (No. 22-470) (asking the Court to decide whether Morgan dictates that federal or state contract law serve as the basis for construing choice-of-law provisions in arbitration agreements).Show More

But the ramifications of Morgan extend far beyond the narrow question of waiver. By explicitly rejecting arbitration exceptionalism, the Court has opened the door to reevaluating a host of doctrines that have long privileged arbitration agreements. As the Ninth Circuit has declared, “Morgan teaches that there is no ‘strong federal policy favoring enforcement of arbitration agreements’”—which suggests that all judge-made, arbitration-specific rules created in the service of a supposed policy favoring arbitration are now ripe for reexamination.30 30.Armstrong v. Michaels Stores, Inc., 59 F.4th 1011, 1014 (9th Cir. 2023) (citation omitted); see alsoDeng v. Frequency Elecs., Inc., 640 F. Supp. 3d 255, 263 (E.D.N.Y. 2022) (“[A]s Morgan makes clear, there can be no special arbitration tests that go beyond the requirements of the common law . . . .”); Town of Vinton v. Certain Underwriters at Lloyds Lond., 706 F. Supp. 3d 602, 608 (W.D. La. 2023) (asserting that Morgan “clipped the wings” of the “‘strong federal policy favoring arbitration’ created by the FAA” (citation omitted)), aff’d sub nom., Town of Vinton v. Indian Harbor Ins. Co., 161 F.4th 282 (5th Cir. 2025).Show More These range from rules allowing non-signatories to enforce arbitration agreements under equitable estoppel doctrines, to permissive standards for enforcing arbitration provisions in browse-wrap contracts, to narrow interpretations of severability that preserve fundamentally unfair arbitration clauses. In each instance, the “federal policy favoring arbitration” has led courts to develop arbitration-specific procedural rules unmoored from ordinary contract law. The demise of arbitration exceptionalism, as signaled by Morgan, has the potential to reshape this doctrinal landscape.

This Article is the first to undertake a systematic examination of these arbitration-specific rules and their evolving place within modern contract and procedural law. While scholars, myself included, have chronicled the expanding reach of arbitration and noted the distinctive status conferred upon arbitration clauses, there has yet to be a focused exploration of the unique rules that have emerged from this exceptional treatment.31 31.See, e.g.,Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371, 409; Kristen M. Blankley, The Future of Arbitration Law?, 2022 J. Disp. Resol., no. 2, at 51, 86 (concluding “that the FAA today meets the definition of a super-statute”).Show More Accordingly, Part I traces the rise of arbitration exceptionalism, examining how the Court’s invocation of a federal policy favoring arbitration has altered foundational principles of contract and procedure. Part II explores how this exceptional treatment has shaped doctrines like equitable estoppel, enabling non-signatories to enforce arbitration clauses in ways that depart from customary common law principles. Part III addresses the judicial willingness to uphold arbitration clauses in browse-wrap and other unilateral contract formats, notwithstanding common law precedents that reject such terms on the grounds that a party cannot be found to have assented to contract terms merely by using a website. And Part IV examines how arbitration exceptionalism has narrowed the doctrine of severability, often to the detriment of fairness in contracting.

In the three years since Morgan was decided, a number of litigants have sought to use its ruling to reverse legal precedents produced by over-deference to arbitration. Accordingly, Part V surveys the post-Morgan case law to assess the potency of these challenges, as well as the judicial response, in order to measure whether courts are truly abandoning arbitration exceptionalism or clinging to it under different guises. As this early decisional law demonstrates, dismantling arbitration exceptionalism will require a fundamental shift in judicial attitudes. Over time, judicial acceptance of Morgan’s mandate disclaiming arbitration favoritism may grow stronger. Or, alternatively, the judiciary’s cool reception to Morgan may reveal that arbitration exceptionalism retains deep vestigial power not easily displaced. As I have argued in prior work, unraveling the “hegemonic arbitration edifice that has stood now for decades” is no easy task.32 32.Myriam Gilles, Arbitration’s Unraveling,172 U. Pa. L. Rev. 1063, 1066–67 (2024) (describing legislative, judicial, and market-based developments that signal preferences for arbitration are in flux).Show More The first step of this project is identifying the multitude of “arbitration-specific variants of federal procedural rules” that “tilt the playing field in favor of (or against) arbitration.”33 33.Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1712, 1714 (2022).Show More The next step—the one that may take a legal generation to accomplish—is convincing courts to fully embrace the principle that arbitration agreements be placed on “the same footing as other contracts.”34 34.Id. at 1713 (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010)).Show More

  1.  Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1711 (2022) (citing the Fair Labor Standards Act, 29 U.S.C. § 207(a) (setting maximum-hours standards for covered employees)). ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Morgan v. Sundance, Inc., No. 18-cv-00316, 2019 WL 5089205, at *7 (S.D. Iowa June 28, 2019) (“[T]he timing of Sundance’s actions demonstrates that it ‘wanted to play heads I win, tails you lose,’ which ‘is the worst possible reason’ for failing to move for arbitration sooner than it did.” (internal quotation marks omitted) (citations omitted)), rev’d, 992 F.3d 711 (8th Cir. 2021), vacated, 142 S. Ct. 1708 (2022). ↑
  5.  Id. at *6 (quoting Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007)). ↑
  6.  Id. at *7 (“Sundance failed to mention the arbitration agreement in its answer, which listed numerous (fourteen) other affirmative defenses.” (citing Messina v. N. Cent. Distrib., Inc., 821 F.3d 1047, 1050 (8th Cir. 2016))); Lewallen, 487 F.3d at 1091 (“To safeguard its right to arbitration, a party must ‘do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration.’” (citation omitted)). ↑
  7.  Courts generally find that removal to and “active” litigation in a forum different from the one designated in a contract between the parties waive the right to later assert a forum selection clause. See, e.g., San Miguel Produce, Inc. v. L.G. Herndon Jr. Farms, Inc., Nos. 16-cv-00035, 16-cv-00043, 2016 WL 6403964, at *3 (S.D. Ga. Oct. 27, 2016) (“[Defendant] acted inconsistently with the forum-selection clause when, on its own accord, it chose to pursue its claims in an improper forum.”). ↑
  8.  See, e.g., Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (noting that because personal jurisdiction “‘represents a restriction on judicial power . . . as a matter of individual liberty[,]’ . . . a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court’s exercise of adjudicatory authority” (first alteration in original) (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982))); Fed. R. Civ. P.
    1

    2(h)(1) (“A party waives any defense listed in Rule 12(b)(2)–(5) by: . . . failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.”). ↑

  9.  See, e.g., Fed. R. Civ. P. 38(d) (“A party waives a jury trial unless its demand is properly served and filed.”); see also Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848–49 (1986) (explaining that the Seventh Amendment guarantee, “as a personal right, . . . is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil . . . matters must be tried”); Rodenbur v. Kaufmann, 320 F.2d 679, 683–84 (D.C. Cir. 1963) (“[A] jury trial lawfully may be waived . . . by inaction . . . .”); Bank of N.Y. Mellon v. Riley, No. 19-cv-00279, 2021 WL 2688615, at *2 (E.D. Tex. Feb. 17, 2021) (finding waiver where a party waited fifteen months to oppose a jury demand). ↑
  10.  At the time Morgan was decided, nine circuits required plaintiffs to establish prejudice where a defendant sought to compel arbitration after a period of active litigation. See, e.g., In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d 41, 44 (1st Cir. 2005); Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968); PaineWebber Inc. v. Faragalli, 61 F.3d 1063, 1069 (3d Cir. 1995); Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d 690, 702 (4th Cir. 2012); Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986); O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 357 (6th Cir. 2003); Erdman Co. v. Phx. Land & Acquisition, LLC, 650 F.3d 1115, 1117 (8th Cir. 2011); ATSA of Cal., Inc. v. Cont’l Ins. Co., 702 F.2d 172, 175 (9th Cir. 1983), amended by, 754 F.2d 1394 (9th Cir. 1985); Citibank, N.A. v. Stok & Assocs., P.A., 387 F. App’x 921, 924–25 (11th Cir. 2010) (per curiam), cert. granted, 562 U.S. 1215 (mem.), and cert. dismissed, 563 U.S. 1029 (2011) (mem.). Only the U.S. Courts of Appeals for the Seventh and D.C. Circuits treated waiver of the right to arbitrate like the waiver of any other contractual right by focusing solely on the defendant’s actions, with no explicit requirement that the plaintiff show prejudice from those actions. See St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 590 (7th Cir. 1992); Nat’l Found. for Cancer Rsch. v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 777 (D.C. Cir. 1987). ↑
  11.  See, e.g., Brevard v. Credit Suisse, No. 23-cv-00428, 2024 WL 36991, at *8 (S.D.N.Y. Jan. 3, 2024) (“Unlike in ordinary cases . . . concerning the waiver of contractual rights, prejudice was the sine qua non for waiver of the right to arbitrate.”). ↑
  12.  Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). ↑
  13.  Morgan v. Sundance, Inc., 992 F.3d 711, 715 (8th Cir. 2021). But see id. at 716 (Colloton, J., dissenting) (observing that outside the arbitration context, plaintiffs are not required to demonstrate either prejudice or detrimental reliance to establish waiver). ↑
  14.  Id. at 715 (majority opinion). ↑
  15.  The result in Morgan was unexpected given the Supreme Court’s consistent pro-arbitration stance over the past twenty years. Moreover, the Court has found workers exempt from arbitration under Section 1 of the Federal Arbitration Act (“FAA”) in only three cases. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 543–44 (2019); Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1793 (2022); Bissonnette v. LePage Bakeries Park St., LLC, 144 S. Ct. 905, 913 (2024). ↑
  16.  Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1712–13 (2022) (remarking that the Court’s use of the “phrase” referencing a federal pro-arbitration policy was “merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate” (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010))). ↑
  17.  Id. at 1713 (citation omitted); see also id. (“The federal policy is about treating arbitration contracts like all others, not about fostering arbitration.”). The Morgan Court explained that this arbitration-specific prejudice rule originated with the “decades-old” decision in Carcich v. Rederi A/B Nordie, where the Second Circuit recognized that “an overriding federal policy favoring arbitration” demanded a heavy burden be placed on those alleging waiver. Id.; Carcich, 389 F.2d 692, 696 (2d Cir. 1968). The Supreme Court observed that Carcich’s “rule and . . . reasoning spread” over the years, until most federal circuit courts had adopted a prejudice requirement for establishing waiver, relying on a policy favoring arbitration over litigation. Morgan, 142 S. Ct. at 1713. ↑
  18.  Morgan, 142 S. Ct. at 1713–14; see also id. at 1714 (observing that “the FAA makes clear that courts are not to create arbitration-specific procedural rules” (citing 9 U.S.C. § 6 (providing that any application under the statute “shall be made and heard in the manner provided by law for the making and hearing of motions”))). ↑
  19.  Id. at 1713. ↑
  20.  Id. at 1711. ↑
  21.  Id. at 1713–14. ↑
  22.  Id. at 1714. ↑
  23.  Id. (characterizing its decision as “[a] directive to a federal court to treat arbitration applications ‘in the manner provided by law’ for all other motions,” which “is simply a command to apply the usual federal procedural rules” (quoting 9 U.S.C. § 6)). ↑
  24.  See id. at 1713 (explaining that the focus of waiver is “on the actions of the person who held the right,” not “the effects of those actions on the opposing party,” so the question boils down to whether a party has “intentional[ly] relinquish[ed] or abandon[ed] . . . a known right” (quoting United States v. Olano, 507 U.S. 725, 733 (1993))). ↑
  25.  See, e.g., Doyle v. UBS Fin. Servs., Inc., 144 F.4th 122, 128 n.5 (2d Cir. 2025) (collecting cases defining the point at which a party’s conduct in court signals a clear intention to relinquish the arbitration right). ↑
  26.  See, e.g., Garcia v. Fuentes Rest. Mgmt. Servs. Inc., 141 F.4th 671, 677–80 (5th Cir. 2025) (outlining post-Morgan factors relevant to waiver, including participation in discovery and mediation, answering the complaint, and delaying a motion to compel arbitration). ↑
  27.  See Morgan, 142 S. Ct. at 1712 (acknowledging disagreement “about the role state law might play in resolving when a party’s litigation conduct results in the loss of a contractual right to arbitrate”). A further complication is that, in some states, courts themselves disagree over whether prejudice is required to establish waiver of the right to arbitrate. Compare Wagner Constr. Co. v. Pac. Mech. Corp., 157 P.3d 1029, 1035 (Cal. 2007) (noting that prejudice is but one factor a court can consider in determining whether a party has waived their right to arbitration), with Lewis v. Fletcher Jones Motor Cars, Inc., 140 Cal. Rptr. 3d 206, 220 (Ct. App. 2012) (stating that prejudice is required). ↑
  28.  Lamonaco v. Experian Info. Sols., Inc., No. 23-cv-01326, 2024 WL 1703112, at *7 (M.D. Fla. Apr. 19, 2024), rev’d, 141 F.4th 1343 (11th Cir. 2025); see also Gaudreau v. My Pillow, Inc., No. 21-cv-01899, 2022 WL 3098950, at *6 (M.D. Fla. July 1, 2022) (“In light of Morgan, this Court must start anew in developing a rule for waiver of arbitration agreements.”); Pumphrey v. Triad Life Scis. Inc., No. 23-cv-00299, 2024 WL 69914, at *3 (N.D. Miss. Jan. 5, 2024) (“It seems possible that Morgan will, in fact, cause the Fifth Circuit to take a fresh look at its arbitration waiver jurisprudence . . . .”), rev’d, No. 24-60028, 2024 WL 4100495 (5th Cir. Sep. 6, 2024). ↑
  29.  See, e.g., Petition for a Writ of Certiorari at 1, Oceltip Aviation 1 Pty Ltd. v. Gulfstream Aerospace Corp., 143 S. Ct. 577 (2023) (mem.) (No. 22-470) (asking the Court to decide whether Morgan dictates that federal or state contract law serve as the basis for construing choice-of-law provisions in arbitration agreements). ↑
  30.  Armstrong v. Michaels Stores, Inc., 59 F.4th 1011, 1014 (9th Cir. 2023) (citation omitted); see also Deng v. Frequency Elecs., Inc., 640 F. Supp. 3d 255, 263 (E.D.N.Y. 2022) (“[A]s Morgan makes clear, there can be no special arbitration tests that go beyond the requirements of the common law . . . .”); Town of Vinton v. Certain Underwriters at Lloyds Lond., 706 F. Supp. 3d 602, 608 (W.D. La. 2023) (asserting that Morgan “clipped the wings” of the “‘strong federal policy favoring arbitration’ created by the FAA” (citation omitted)), aff’d sub nom., Town of Vinton v. Indian Harbor Ins. Co., 161 F.4th 282 (5th Cir. 2025). ↑
  31.  See, e.g., Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev
    .

    371, 409; Kristen M. Blankley, The Future of Arbitration Law?, 2022 J. Disp. Resol., no. 2, at 51, 86 (concluding “that the FAA today meets the definition of a super-statute”). ↑

  32.  Myriam Gilles, Arbitration’s Unraveling, 172 U. Pa. L. Rev
    .

    1063, 1066–67 (2024) (describing legislative, judicial, and market-based developments that signal preferences for arbitration are in flux). ↑

  33.  Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1712, 1714 (2022). ↑

  34.  Id. at 1713 (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010)). ↑

Taming the Shadow Docket

The Supreme Court’s shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This Article identifies comprehensive structural reforms, all within the Court’s control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, states, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the Administrative Procedure Act (“APA”); and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.

Introduction

In the first months of the second Trump Administration, federal district courts throughout the country issued temporary restraining orders and preliminary injunctions blocking numerous executive actions.1 1.See, e.g., CASA, Inc. v. Trump, 763 F. Supp. 3d 723, 727 (D. Md.), appeal dismissed, No. 25-1153, 2025 WL 2141296 (4th Cir. July 29, 2025); AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, 770 F. Supp. 3d 121, 127 (D.D.C.), vacated sub nom., Glob. Health Council v. Trump, 153 F.4th 1 (D.C. Cir. 2025); New York v. Trump, 765 F. Supp. 3d 284, 286–87 (S.D.N.Y.), modified, 765 F. Supp. 3d 287, 292–93 (S.D.N.Y. 2025); Dellinger v. Bessent, 766 F. Supp. 3d 57, 74 (D.D.C.), appeal dismissed, No. 25-5028, 2025 WL 559669 (D.C. Cir. Feb. 15, 2025) (per curiam); Wilcox v. Trump, 775 F. Supp. 3d 215, 240 (D.D.C.), rev’d sub nom.,Harris v. Bessent, 160 F.4th 1235 (D.C. Cir. 2025); California v. U.S. Dep’t of Educ., 769 F. Supp. 3d 72, 75 (D. Mass.), appeal dismissed, No. 25-1244, 2025 WL 2604596 (1st Cir. Apr. 23, 2025); J.G.G. v. Trump, 786 F. Supp. 3d 37, 83 (D.D.C.), vacated, No. 25-5217, 2025 WL 2317650 (D.C. Cir. Aug. 8, 2025) (per curiam); Wilmer Cutler Pickering Hale & Dorr LLP v. Exec. Off. of the President, 774 F. Supp. 3d 86, 90 (D.D.C. 2025); D.V.D. v. U.S. Dep’t of Homeland Sec., 778 F. Supp. 3d 355, 394 (D. Mass. 2025), appeal filed, No. 25-1393 (1st Cir. Apr. 22, 2025); Nat’l TPS All. v. Noem, 773 F. Supp. 3d 807, 868 (N.D. Cal.), aff’d, 150 F.4th 1000 (9th Cir. 2025); Learning Res., Inc. v. Trump, 784 F. Supp. 3d 209, 233 (D.D.C. 2025), vacated, 146 S. Ct. 628 (2026); Newsom v. Trump, 786 F. Supp. 3d 1235, 1263 (N.D. Cal. 2025), appeal filed, No. 25-3727 (9th Cir. June 12, 2025); President & Fellows of Harvard Coll. v. U.S. Dep’t of Homeland Sec., 788 F. Supp. 3d 182, 210–11 (D. Mass 2025), appeal filed, No. 25-1627 (1st Cir. July 1, 2025). For tallies, see Litigation Tracker: Legal Challenges to Trump Administration Actions, Just Sec.,150+ results (on file with the Virginia Law Review) (filtered by “Case Status”, “Government Action Blocked”, “Government Action Temporarily Blocked”, “Government Action Blocked Pending Appeal”), https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-tr‌ump-administration/ [https://perma.cc/N6CV-LCXT] (last visited Jan. 6, 2026, at 18:19 ET) (counting “legal challenges to Trump administration executive actions,” and counting over 150 cases in which action has been “Blocked,” “Temporarily Blocked,” or “Blocked Pending Appeal”); Steve Vladeck,What District Court Critics Aren’t Telling You, Substack: One First (June 2, 2025), https://www.stevevladeck.com/p/155-what-critics-of-district-courts [https://p‌erma.cc/27YN-32PE] (finding ninety-seven cases in which federal courts entered “some . . . coercive relief against the Trump administration”).Show More The courts issued such orders after states and advocacy groups filed suit in favorable forums, seeking broad, often nationwide, relief from the policies. Those orders moved rapidly up through the lower courts, and by mid-February, the first matter landed at the Supreme Court as an emergency application on its “shadow docket.”2 2.See Bessent v. Dellinger, 145 S. Ct. 1326, 1326–27 (2025) (mem.). Sometimes the term “shadow docket” refers generally to the Court’s non-merits docket, which includes emergency applications, petitions for certiorari, summary reversals, applications for stays of executions, procedural motions (like motions for extensions of time to file a petition for certiorari), and more. See Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii, 12, 23–24, 87–89 (2023) [hereinafter Vladeck, The Shadow Docket]; see alsoThomas P. Schmidt, Orders Without Law, 122 Mich. L. Rev. 1003, 1005 (2024) (reviewing Vladeck, The Shadow Docket, supra) (defining the “shadow docket” as encompassing “everything the Court does other than the merits docket”). In this Article, I use it to refer to the set of high-profile emergency applications that popularized the term. I also use the terms “emergency docket” or “interim docket” in the same way. SeeJack Goldsmith, Interim Orders, the Presidency, and Judicial Supremacy, 139 Harv. L. Rev. 86, 89–92, 90 n.23 (2025) (discussing the use of various terms to refer to the relevant portion of the Court’s docket).Show More The applications continued through the end of the Court’s Term, with almost twenty filed by the Solicitor General by the time the Court issued its final opinions at the end of June.3 3.See Trump Administration Litigation Tracker, Lawfare, https://www.lawfaremedia.org/pr‌ojects-series/trials-of-the-trump-administration/tracking-trump-administration-litigation#trac‌ker (last updated Mar. 10, 2026).Show More The pattern is familiar from the Court’s frequent use of the shadow docket during the first Trump Administration and the Biden Administration.4 4.See Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 134 (2019) (collecting cases from the first Trump Administration); Adam Liptak, On the Supreme Court’s Emergency Docket, Sharp Partisan Divides, N.Y. Times(Sep. 14, 2025), https://www.nytimes.com/2025/09/14/us/politics/supreme-court-emergency-docket-partisan.‌html (noting that the Biden Administration filed seventeen applications with the Court and succeeded in fifty-three percent of such applications); Goldsmith, supra note 2, at 95 & n.49 (noting that the Court decided “an unusual number of important issues of presidential power via interim orders during the first Trump and Biden Administrations” and listing cases).Show More

As that pattern emerged, commentators and some Justices criticized the use of the emergency docket. Critics noted that the Court issued unexplained orders, failed to disclose its votes, intervened too early in the appellate process, changed the substantive law without briefing on the merits, and disregarded the appropriate legal standards for emergency relief—all in cases of immense national significance.5 5.See, e.g., Sarah Voehl, Illuminating the Shadow Docket: On the Increasing Impacts of This Evolving Judicial Procedure, 23 Nev. L.J. 945, 957 (2023) (insufficient reasoning and failure to identify votes); Stephen I. Vladeck, A Court of First View, 138 Harv. L. Rev. 533, 549–50 (2024) (granting certiorari before judgment); Vladeck, The Shadow Docket, supra note 2, at 163–95 (changing substantive religious liberty law); Stephen I. Vladeck, Response, Emergency Relief During Emergencies, 102 B.U. L. Rev. 1787, 1789 (2022) (applying the wrong standard for emergency relief); see also Noem v. Doe, 145 S. Ct. 1524, 1525 (2025) (mem.) (Jackson, J., dissenting from the grant of the application for a stay) (stating that the Court had “botched” consideration of “irreparable harm” for emergency relief); Trump v. Wilcox, 145 S. Ct. 1415, 1418 (2025) (mem.) (Kagan, J., dissenting from the grant of the application for stay) (arguing that the “emergency docket . . . should not be used to overrule or revise existing law”); Merrill v. Milligan, 142 S. Ct. 879, 883 (2022) (mem.) (Kagan, J., dissenting from grant of applications for stays) (noting the “scanty review” in shadow-docket cases).Show More A New York Times bestselling book warned in its subtitle that the Court has used “stealth rulings” to “amass power and undermine the republic.”6 6.Vladeck,The Shadow Docket, supranote 2.Show More The remedy, many critics say, is for the Court to develop and implement better rules and procedures for its shadow-docket practices. It should issue opinions explaining itself, get better briefing, delay intervention in the appellate process, apply better legal standards for emergency intervention, and more.7 7.E.g., Richard J. Pierce, Jr., The Supreme Court Should Eliminate Its Lawless Shadow Docket, 74 Admin. L. Rev. 1, 16–19 (2022) (suggesting that the Court should explain its actions whenever its opinions are “likely to have significant long-term effects”); Schmidt, supranote 2, at 1021 (same); id. at 1020 (arguing that “the emergency docket should be reserved for cases that are cert-worthy”); Kristin E. Parnigoni, Note, Shades of Scrutiny: Standards for Emergency Relief in the Shadow Docket Era, 63 B.C. L. Rev. 2743, 2777 (2022) (proposing a new standard for the Supreme Court’s emergency-relief decisions).Show More

But the core pathologies of the shadow docket cannot be cured with tweaks to the Court’s internal operating procedures. Given the current structure of federal jurisdiction, emergency applications are inevitable. As Justice Kavanaugh explained in his Labrador v. Poe ex rel. Poe concurrence, the Court “cannot avoid” resolving emergency applications about a “new federal statute, federal regulation, or state law.”8 8.144 S. Ct. 921, 928 (2024) (mem.) (Kavanaugh, J., concurring in the grant of stay).Show More The Court cannot stop Congress, state legislators, the president, or administrative agencies from enacting or issuing new legislation, executive orders, or rules. It cannot stop litigants from seeking to block those policies in a federal district court perceived to be favorable to the litigant’s position.9 9.SeeChristopher A. Whytock, The Evolving Forum Shopping System, 96 Corn. L. Rev. 481, 486–87 (2011) (noting that a plaintiff will sue where the “expected value of [their] claim (less the costs of litigation) is the highest based on the substantive and procedural rules of that court’s legal system”); see also id. at 487 n.25 (“This perspective is based on the standard rational-choice model of the decision to sue, according to which a plaintiff will only file a claim if the expected value of the claim . . . is greater than zero.”).Show More And it cannot realistically preclude litigants from filing emergency applications in the Supreme Court once a “consequential new law has been mistakenly enjoined or mistakenly green-lighted by the lower courts.”10 10.Labrador, 144 S. Ct. at 928 (Kavanaugh, J., concurring in the grant of stay).Show More No matter how much the Court explains itself or asks the parties for additional briefing, the Court will be asked to resolve consequential issues with limited time to do so. The pressure on the Court to resolve such issues will be irresistible, at least as long as the Court remains committed to supervising the lower federal courts instead of allowing them to make consequential decisions on their own. And there are good reasons to think that the Court will, and perhaps should, remain committed to that supervisory role.

The Court does, however, control the capacity of the lower federal courts to interfere with nationwide or statewide policies.11 11.See, e.g., Toby J. Heytens, Doctrine Formulation and Distrust, 83 Notre Dame L. Rev. 2045, 2047 (2008) (arguing that the Supreme Court can (and does) use doctrine to “shape and direct lower court behavior”).Show More Even before the decision in Trump v. CASA, Inc., some of the Justices had explained that district courts’ issuance of “universal injunctions,” meaning injunctions that order the defendant not to enforce a law or policy against third parties not before the court, had increased the number of “high-profile” cases before the Court by turning “limited dispute[s]” into “consequential referend[a] on the law’s every provision as applied to anyone.”12 12.Labrador, 144 S. Ct. at 927 (Gorsuch, J., concurring in the grant of stay).Show More The scope of injunctive relief, the argument went, is a structural cause of the problems of the shadow docket. Now that the Court in CASA has concluded that injunctions that are broader than necessary to provide relief to the parties are impermissible,13 13.See145 S. Ct. 2540, 2565 (2025).Show More some might think that the decision could reduce the pressure for the Court to “resolve significant and difficult questions of law on a highly expedited basis and without full briefing.”14 14.Id.at 2559. But seeNicholas Bagley, The Supreme Court Put Nationwide Injunctions to the Torch, The Atlantic (June 28, 2025), https://www.theatlantic.com/ideas/archive/2025/06/s‌upreme-court-trump-injunctions/683354/ (discussing avenues to relief that the Court’s opinion did not address); Samuel Bray, Guest Essay, The Supreme Court Is Watching Out for the Courts, Not for Trump, N.Y. Times (June 28, 2025), https://www.nytimes.com/2025/06/28‌/opinion/birthright-citizenship-supreme-court-injunction.html (similar).Show More

CASA alone will not suffice to address the structural causes of the shadow docket.15 15.For an argument that CASA still permits “lower courts” to “issue orders that check the executive branch in a blanket or near-blanket way,” see Mila Sohoni, In CASA You Missed It, 78 Stan. L. Rev. (forthcoming 2026) (manuscript at 19), https://papers.ssrn.com/sol3/papers.cf‌m?abstract_id=5799882 [https://perma.cc/RA8E-XPTX].Show More Shutting down one avenue by which plaintiffs seek to block federal and state policies will not eliminate the underlying incentives to use the federal courts to prevent undesirable policies from taking effect. And the current jurisdictional and remedial regime makes federal court a quick, cheap, and easy venue for states and organizational plaintiffs to block federal and state policies.16 16.See infra Part II.Show More That problem depends on a constellation of rules about Article III standing, equitable relief under Ex parte Young or 42 U.S.C. § 1983, reviewability under the Administrative Procedure Act (“APA”), class-action certification procedures, preliminary injunctive relief, and many other doctrines. CASA did not address these alternative litigation strategies.17 17.CASA, 145 S. Ct. at 2558 (declining to address the scope of relief for the states); id.at 2565 (Alito, J., concurring) (noting that “the availability of third-party standing and class certification” could “threaten the practical significance of today’s decision”); id.at 2567 (Kavanaugh, J., concurring) (noting alternative channels through which plaintiffs will “challenge the legality of a new federal statute or executive action”).Show More So while eliminating universal injunctions is a start, the Court would need to systematically consider other jurisdictional and remedial rules too. Thinking systematically requires disaggregating the various pathways by which cases reach the shadow docket, identifying how litigants escalate high-salience matters to the Court, and anticipating the alternative strategies they would adopt if any particular avenue were closed.

I thus offer a series of overlapping doctrinal reforms that would constrain the ability of lower courts to interfere with national or statewide policy. These reforms, broadly categorized, apply to who should sue, what claims they might bring, and what relief they might obtain.

As to who can sue: the Court could limit the Article III standing of associations and states to prevent them from using alleged injuries to their members or citizens to advance their ideological agendas. The Court could likewise limit the ability of the United States to seek equitable relief against states. Those changes would reduce the vicarious assertion of the interests of members or citizens and thus reduce the scope of relief, even while individual litigants with concrete harms (and classes that satisfy Federal Rule of Civil Procedure 23(b)(2)) could seek tailored redress. During each of the last two presidential administrations, states and associations were repeat players on the shadow docket, and limiting their ability to sue should limit the set of high-profile disputes in the federal courts.18 18.See infraSection III.A.Show More

As to what claims can be brought: the Court could restrict suits in equity for injunctive relief under Ex parte Young (and § 1983 and implied constitutional causes of action) and suits challenging agency action under the APA. Regarding injunctive relief, the Court could return Ex parte Young to its roots by reinvigorating the “inadequate remedy at law” requirement. In other words, a plaintiff seeking equitable relief could be required to provide specific and concrete reasons why state courts are inadequate fora to adjudicate federal issues. If the Court were to restore that rule for Ex parte Young, it would also need to recognize the same rule in suits for injunctive relief under § 1983 or under implied constitutional causes of action, which would otherwise be substitutes for claims under Ex parte Young. Regarding the APA, the Court could reiterate that the APA precludes challenges to programmatic policies and refuse to allow pre-enforcement review of agency guidance or executive orders. These changes would ensure that challenges to federal regulatory action occur later, attack narrower actions, and focus on agency actions that alter a plaintiff’s legal rights instead of internal memoranda about how agencies should operate in the future. The Court might also reiterate that neither the APA nor Ex parte Young permits a suit for injunctive relief against the president, and it might embrace a “presumption of constitutionality” for legislative or executive action (or both).19 19.See infraSection III.B.Show More

As to what relief can be granted: the Court could limit the scope of injunctions (preliminary and final), require district courts to demand injunction bonds before entering preliminary injunctions, and reject the theory of universal vacatur under the APA. The Court might also need to tighten the rules for preliminary relief for putative classes after its decision in A.A.R.P. v. Trump.20 20.145 S. Ct. 1364, 1369 (2025) (per curiam).Show More These changes would appreciably limit the scope of federal judicial interventions, whether by reducing the scope of relief or by delaying intervention to a later stage in the litigation.21 21.See infraSection III.C.Show More

But why not address the other structural cause of the shadow docket? If the shadow docket emerges also from the Court’s commitment to supervision and control of lower courts, why not dispense with the Supreme Court’s supremacy instead?22 22.See infraSection I.B.Show More First, it is not obvious that there is any realistic alternative at this point. Given the Court’s commitment to its supremacy and the plausible constitutional and institutional reasons for that supremacy, the commitment seems durable for the foreseeable future. If there is no realistic way to give broad power to federal district courts without subordinating them to the Supreme Court, taming the shadow docket necessarily requires taming the lower federal courts.

Second, the reasons one might refuse to disempower the lower courts—and thus the reasons that the reforms proposed in this Article would seem unpalatable—might likewise counsel in favor of the Supreme Court’s supremacy. In the category of high-salience cases that reach the shadow docket, the federal courts operate as a check on state and federal illegality, which some might think is particularly important if the executive branch has become more willing to stretch or violate the law to obtain its preferred policy outcomes.23 23.See, e.g., Transcript of Oral Argument at 57–59, Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) (No. 24A884) (statement of Kavanaugh, J.) (suggesting that “presidents of both parties,” with “good intentions,” “push hard to . . . stretch or use existing authority” because “it’s harder to get legislation through Congress”); Kent Greenfield et al., “We Are in a Constitutional Crisis”: Statement of Law Professors and Law Teachers (Apr. 7, 2025), https:‌//www.acslaw.org/wp-content/uploads/2025/04/We-Are-in-a-Constitional-Crisis-Statement-of-Law-Professors-and-Law-Teachers-4.7.25-1.pdf [https://perma.cc/97J3-YK77].Show More On this view, disempowering the lower courts would fix the shadow docket, but the inability to constrain the political branches would make matters worse. If that is one’s view, however, the shadow docket might in fact be an integral component of a federal judiciary that effectively constrains political actors.24 24.See infraPart IV.Show More The threat of the Court’s intervention, and the availability of recourse to the Supreme Court for the parties, might ensure the efficacy of the orders and precedents that lower federal courts do issue. If the supremacy of the Supreme Court is essential to the ability of the lower federal courts to rein in state and federal illegality, and if the shadow docket emerges from that supremacy, then retaining the power of the federal courts means retaining the shadow docket. Indeed, the conclusion of this line of argument might be that the effective subordination of the political branches to the federal judiciary could benefit from a more aggressive shadow docket. Perhaps reforms should aim not to disempower the federal courts to fix the shadow docket, but to strengthen the federal courts by expanding it. Indeed, that is the future for the shadow docket that Justice Kavanaugh proposed in his concurrence in CASA.25 25.See infratext accompanying notes 277–79.Show More

Two more points are worth noting at the outset, one about this Article’s methodology and one about its novelty. Methodologically, this Article assesses legal doctrines as causes of a particular problem emerging from the institutional design of the federal courts. I do not claim that any suggested reform is the “correct” interpretation of a doctrinal regime from an internal perspective. Instead, I offer reforms that could, if adopted, solve the problem of the shadow docket. At the same time, because reforms must be doctrinally plausible to be realistic options for courts confronting the problem of the shadow docket, they must have some basis in legal doctrine. Thus, each of the proposed reforms has a plausible basis in current doctrine or an extension of that doctrine.

On novelty, this Article’s novel contribution is neither to identify individually new jurisdictional and remedial proposals, nor to offer comprehensive legal arguments in support of any reform. What is novel is the comprehensive structural reconsideration of the problems of the shadow docket. Prior critiques of the shadow docket have tended to focus on the Court’s responses to emergency applications—not the structural pressures to resolve them.26 26.See infraSection II.A.Show More When commentators have focused on structural causes, they often have either identified reforms that require congressional action (as with proposals to restore three-judge district courts for emergency relief) or addressed one doctrinal problem in isolation (as with discussions of universal injunctions before CASA).27 27.See infraSection II.B.Show More The Article’s focus on structural causes and solutions is thus neither idealistic nor myopic. Instead, it offers the Court (and lower courts) solutions within its control to reduce the pressure on the shadow docket. Adopting many or some of those solutions would be, in my view, the better solution to the problems of the shadow docket. But this Article also suggests, in the alternative, a possible future for the shadow docket if the proposed reforms to the lower courts seem too costly and if, accordingly, the shadow docket must be integrated into the federal judicial system.

This Article proceeds as follows. Part I identifies the relevant structural causes of the shadow docket. Section I.A disaggregates the features of typical emergencies at the Supreme Court. Section I.B explains the Supreme Court’s commitment to supervision of the lower courts in significant cases. Part II explains why prior reforms miss the mark. Some fail to target the structural causes; others offer incomplete or unrealistic fixes to the structural causes. Part III offers structural solutions, grouped as party-based, claim-based, and remedy-based limitations. It also explains why the reforms would not reproduce the same problems in the state courts. Part IV discusses the relationship between the scope of federal judicial power and Supreme Court supervision of the lower federal courts. It concludes with alternative reforms that could make the shadow docket a better mechanism for supervising the lower courts. Those alternative reforms should function as, depending on one’s perspective, either a reductio supporting my initial reforms or a possible future for the shadow docket.

  1.  See, e.g., CASA, Inc. v. Trump, 763 F. Supp. 3d 723, 727 (D. Md.), appeal dismissed, No. 25-1153, 2025 WL 2141296 (4th Cir. July 29, 2025); AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, 770 F. Supp. 3d 121, 127 (D.D.C.), vacated sub nom., Glob. Health Council v. Trump, 153 F.4th 1 (D.C. Cir. 2025); New York v. Trump, 765 F. Supp. 3d 284, 286–87 (S.D.N.Y.), modified, 765 F. Supp. 3d 287, 292–93 (S.D.N.Y. 2025); Dellinger v. Bessent, 766 F. Supp. 3d 57, 74 (D.D.C.), appeal dismissed, No. 25-5028, 2025 WL 559669 (D.C. Cir. Feb. 15, 2025) (per curiam); Wilcox v. Trump, 775 F. Supp. 3d 215, 240 (D.D.C.), rev’d sub nom., Harris v. Bessent, 160 F.4th 1235 (D.C. Cir. 2025); California v. U.S. Dep’t of Educ., 769 F. Supp. 3d 72, 75 (D. Mass.), appeal dismissed, No. 25-1244, 2025 WL 2604596 (1st Cir. Apr. 23, 2025); J.G.G. v. Trump, 786 F. Supp. 3d 37, 83 (D.D.C.), vacated, No. 25-5217, 2025 WL 2317650 (D.C. Cir. Aug. 8, 2025) (per curiam); Wilmer Cutler Pickering Hale & Dorr LLP v. Exec. Off. of the President, 774 F. Supp. 3d 86, 90 (D.D.C. 2025); D.V.D. v. U.S. Dep’t of Homeland Sec., 778 F. Supp. 3d 355, 394 (D. Mass. 2025), appeal filed, No. 25-1393 (1st Cir. Apr. 22, 2025); Nat’l TPS All. v. Noem, 773 F. Supp. 3d 807, 868 (N.D. Cal.), aff’d, 150 F.4th 1000 (9th Cir. 2025); Learning Res., Inc. v. Trump, 784 F. Supp. 3d 209, 233 (D.D.C. 2025), vacated, 146 S. Ct. 628 (2026); Newsom v. Trump, 786 F. Supp. 3d 1235, 1263 (N.D. Cal. 2025), appeal filed, No. 25-3727 (9th Cir. June 12, 2025); President & Fellows of Harvard Coll. v. U.S. Dep’t of Homeland Sec., 788 F. Supp. 3d 182, 210–11 (D. Mass 2025), appeal filed, No. 25-1627 (1st Cir. July 1, 2025). For tallies, see Litigation Tracker: Legal Challenges to Trump Administration Actions, Just Sec.
    ,

    150+ results (on file with the Virginia Law Review) (filtered by “Case Status”, “Government Action Blocked”, “Government Action Temporarily Blocked”, “Government Action Blocked Pending Appeal”), https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-tr‌ump-administration/ [https://perma.cc/N6CV-LCXT] (last visited Jan. 6, 2026, at 18:19 ET) (counting “legal challenges to Trump administration executive actions,” and counting over 150 cases in which action has been “Blocked,” “Temporarily Blocked,” or “Blocked Pending Appeal”); Steve Vladeck, What District Court Critics Aren’t Telling You, Substack: One First (June 2, 2025), https://www.stevevladeck.com/p/155-what-critics-of-district-courts [https://p‌erma.cc/27YN-32PE] (finding ninety-seven cases in which federal courts entered “some . . . coercive relief against the Trump administration”). ↑

  2.  See Bessent v. Dellinger, 145 S. Ct. 1326, 1326–27 (2025) (mem.). Sometimes the term “shadow docket” refers generally to the Court’s non-merits docket, which includes emergency applications, petitions for certiorari, summary reversals, applications for stays of executions, procedural motions (like motions for extensions of time to file a petition for certiorari), and more. See Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii, 12, 23–24, 87–89 (2023) [hereinafter Vladeck, The Shadow Docket]; see also Thomas P. Schmidt, Orders Without Law, 122 Mich. L. Rev. 1003, 1005 (2024) (reviewing Vladeck, The Shadow Docket, supra) (defining the “shadow docket” as encompassing “everything the Court does other than the merits docket”). In this Article, I use it to refer to the set of high-profile emergency applications that popularized the term. I also use the terms “emergency docket” or “interim docket” in the same way. See Jack Goldsmith, Interim Orders, the Presidency, and Judicial Supremacy, 139 Harv. L. Rev. 86, 89–92, 90 n.23 (2025) (discussing the use of various terms to refer to the relevant portion of the Court’s docket). ↑
  3.  See Trump Administration Litigation Tracker, Lawfare, https://www.lawfaremedia.org/pr‌ojects-series/trials-of-the-trump-administration/tracking-trump-administration-litigation#trac‌ker (last updated Mar. 10, 2026). ↑
  4.  See Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 134 (2019) (collecting cases from the first Trump Administration); Adam Liptak, On the Supreme Court’s Emergency Docket, Sharp Partisan Divides, N.Y. Times

    (Sep. 14, 2025), https://www.nytimes.com/2025/09/14/us/politics/supreme-court-emergency-docket-partisan.‌html (noting that the Biden Administration filed seventeen applications with the Court and succeeded in fifty-three percent of such applications); Goldsmith, supra note 2, at 95 & n.49 (noting that the Court decided “an unusual number of important issues of presidential power via interim orders during the first Trump and Biden Administrations” and listing cases). ↑

  5.  See, e.g., Sarah Voehl, Illuminating the Shadow Docket: On the Increasing Impacts of This Evolving Judicial Procedure, 23 Nev. L.J. 945, 957 (2023) (insufficient reasoning and failure to identify votes); Stephen I. Vladeck, A Court of First View, 138 Harv. L. Rev. 533, 549–50 (2024) (granting certiorari before judgment); Vladeck, The Shadow Docket, supra note 2, at 163–95 (changing substantive religious liberty law); Stephen I. Vladeck, Response, Emergency Relief During Emergencies, 102 B.U. L. Rev. 1787, 1789 (2022) (applying the wrong standard for emergency relief); see also Noem v. Doe, 145 S. Ct. 1524, 1525 (2025) (mem.) (Jackson, J., dissenting from the grant of the application for a stay) (stating that the Court had “botched” consideration of “irreparable harm” for emergency relief); Trump v. Wilcox, 145 S. Ct. 1415, 1418 (2025) (mem.) (Kagan, J., dissenting from the grant of the application for stay) (arguing that the “emergency docket . . . should not be used to overrule or revise existing law”); Merrill v. Milligan, 142 S. Ct. 879, 883 (2022) (mem.) (Kagan, J., dissenting from grant of applications for stays) (noting the “scanty review” in shadow-docket cases). ↑
  6.  Vladeck,

    The Shadow Docket, supra note 2. ↑

  7.  E.g., Richard J. Pierce, Jr., The Supreme Court Should Eliminate Its Lawless Shadow Docket, 74 Admin. L. Rev. 1, 16–19 (2022) (suggesting that the Court should explain its actions whenever its opinions are “likely to have significant long-term effects”); Schmidt, supra note 2, at 1021 (same); id. at 1020 (arguing that “the emergency docket should be reserved for cases that are cert-worthy”); Kristin E. Parnigoni, Note, Shades of Scrutiny: Standards for Emergency Relief in the Shadow Docket Era, 63 B.C. L. Rev
    .

    2743, 2777 (2022) (proposing a new standard for the Supreme Court’s emergency-relief decisions). ↑

  8.  144 S. Ct. 921, 928 (2024) (mem.) (Kavanaugh, J., concurring in the grant of stay). ↑
  9.  See Christopher A. Whytock, The Evolving Forum Shopping System, 96 Corn. L. Rev.
    481,
    486–87
    (2011)
    (

    noting that a plaintiff will sue where the “expected value of [their] claim (less the costs of litigation) is the highest based on the substantive and procedural rules of that court’s legal system”); see also id. at 487 n.25 (“This perspective is based on the standard rational-choice model of the decision to sue, according to which a plaintiff will only file a claim if the expected value of the claim . . . is greater than zero.”)

    .

    ↑

  10.  Labrador, 144 S. Ct. at 928 (Kavanaugh, J., concurring in the grant of stay). ↑
  11.  See, e.g., Toby J. Heytens, Doctrine Formulation and Distrust, 83 Notre Dame L. Rev
    .

    2045, 2047 (2008) (arguing that the Supreme Court can (and does) use doctrine to “shape and direct lower court behavior”). ↑

  12.  Labrador, 144 S. Ct. at 927 (Gorsuch, J., concurring in the grant of stay). ↑
  13.  See 145 S. Ct. 2540, 2565 (2025). ↑
  14.  Id. at 2559. But see Nicholas Bagley, The Supreme Court Put Nationwide Injunctions to the Torch, The Atlantic (June 28, 2025), https://www.theatlantic.com/ideas/archive/2025/06/s‌upreme-court-trump-injunctions/683354/ (discussing avenues to relief that the Court’s opinion did not address); Samuel Bray, Guest Essay, The Supreme Court Is Watching Out for the Courts, Not for Trump, N.Y. Times (June 28, 2025), https://www.nytimes.com/2025/06/28‌/opinion/birthright-citizenship-supreme-court-injunction.html (similar). ↑
  15.  For an argument that CASA still permits “lower courts” to “issue orders that check the executive branch in a blanket or near-blanket way,” see Mila Sohoni, In CASA You Missed It, 78 Stan. L. Rev. (forthcoming 2026) (manuscript at 19), https://papers.ssrn.com/sol3/papers.cf‌m?abstract_id=5799882 [https://perma.cc/RA8E-XPTX]. ↑
  16.  See infra Part II. ↑
  17.  CASA, 145 S. Ct. at 2558 (declining to address the scope of relief for the states); id. at 2565 (Alito, J., concurring) (noting that “the availability of third-party standing and class certification” could “threaten the practical significance of today’s decision”); id. at 2567 (Kavanaugh, J., concurring) (noting alternative channels through which plaintiffs will “challenge the legality of a new federal statute or executive action”). ↑
  18.  See infra Section III.A. ↑
  19.  See infra Section III.B. ↑
  20.  145 S. Ct. 1364, 1369 (2025) (per curiam). ↑
  21.  See infra Section III.C. ↑
  22.  See infra Section I.B. ↑
  23.  See, e.g., Transcript of Oral Argument at 57–59, Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) (No. 24A884) (statement of Kavanaugh, J.) (suggesting that “presidents of both parties,” with “good intentions,” “push hard to . . . stretch or use existing authority” because “it’s harder to get legislation through Congress”); Kent Greenfield et al., “We Are in a Constitutional Crisis”: Statement of Law Professors and Law Teachers (Apr. 7, 2025), https:‌//www.acslaw.org/wp-content/uploads/2025/04/We-Are-in-a-Constitional-Crisis-Statement-of-Law-Professors-and-Law-Teachers-4.7.25-1.pdf [https://perma.cc/97J3-YK77]. ↑
  24.  See infra Part IV. ↑
  25.  See infra text accompanying notes 277–79. ↑
  26.  See infra Section II.A. ↑

  27.  See infra Section II.B. ↑

Consent & Causation

In criminal law, the doctrines surrounding sexual consent and proximate causation are both thought to reflect conclusions about individual autonomy. But these doctrines diverge in striking ways. In rape law, the choice to consent to sex is deemed sufficiently autonomous even when made in response to threats or coercion, when induced by fraudulent misrepresentations, or when produced by mental impairment. By contrast, the doctrine of proximate causation holds that a choice made in response to force, coercion, fraud, or mental impairment is insufficiently autonomous, and therefore an individual is not morally responsible for any resulting consequences. This divergence invites a crucial question: Does the law of proximate causation capture something important about individual autonomy that has been overlooked in the law of sexual consent? After all, sexual consent frequently plays a causal role in normatively desirable sexual encounters. Yet the structure of U.S. rape law elides any inquiry into causation. Might rape law be improved—might it better protect individual autonomy—by demanding that sexual consent be a proximate cause of sex itself?

This Article is the first to raise this question and undertake this inquiry. By juxtaposing consent and causation in criminal jurisprudence, it reveals an inconsistency in the understandings of autonomy that motivate those doctrines, shedding new light on longstanding criticisms of rape law. This Article then makes a preliminary case for reforming rape law by recasting sexual consent as a matter of proximate causation. It offers three grounds for doing so: First, philosophical accounts of sexual autonomy require an individual to be able to control the character and circumstances of sexual contact, a requirement that is only vindicated when consent causally contributes to sexual activity. Second, the best understanding of consent’s exonerating role in sex is that consent alters another person’s reasons for acting, a function that can only occur when consent causally motivates sexual behavior. Lastly, the leading accounts of when sex is normatively desirable rest on a conception of mutuality—that is, responsiveness to the other person’s active consent. In short, this Article advances the novel claim that sexual activity is normatively desirable when it occurs because it is consented to, not merely whenever it is consented to.

The Article concludes by considering how rape laws may be reformed to leverage the normative insights just uncovered. It first examines the recent revisions to the sexual assault provisions of the Model Penal Code adopted by the American Law Institute in 2022. Those revisions, for the first time, included both requirements of causation and requirements of nonconsent. But the Model Penal Code’s revisions hew too closely to traditional rape laws, ultimately failing to capture the broad spectrum of normatively undesirable sex that warrants criminalization. The Article instead reconfigures rape as primarily a result crime, prohibiting specific wrongful means of causing sexual intercourse and exonerating sex when consent is the proximate cause. A rape law structured around the causes of sexual intercourse may best capture our normative intuitions about why and when consent matters.

Introduction

Consent is the primary legal mechanism used by the criminal law—rape law, in particular—to safeguard sexual autonomy.1 1.See, e.g., Stuart P. Green, Criminalizing Sex: A Unified Liberal Theory 25 (2020); see also Alan Wertheimer, Consent to Sexual Relations 31 (2003) (“In effect, autonomy refers to the value that is to be protected, whereas consent refers to the means for protecting and promoting that value: we protect a person’s autonomy by prohibiting actions to which she does not consent and empowering her to engage in actions to which she does consent.” (emphasis omitted)); Luis E. Chiesa, Solving the Riddle of Rape-by-Deception, 35 Yale L. & Pol’y Rev. 407, 419 (2017) (“[C]onsent is the tool that law most commonly deploys in order to operationalize conceptions of freedom and autonomy.”); Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev. 131, 187 (2002) (“As many commentators have observed, the central value protected by sexual offense provisions is sexual autonomy or sexual integrity, the violation of which represents a unique, not readily comparable, type of harm to the victim.” (footnotes omitted)).Show More However, American rape law has long been criticized for advancing a conception of consent that survives common means of subverting autonomy.2 2.See, e.g., Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 162–68, 173–77 (1998) (detailing scholarly criticisms of rape law’s treatment of sexual fraud and sexual coercion); see also Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 114–36 (1998) (critiquing rape law’s treatment of coercive situations as consensual).Show More Judges and juries have found valid consent to sexual intercourse in the face of deadly threats,3 3.See infra Subsection I.C.1.Show More psychological coercion,4 4.See infra Subsection I.C.1.Show More material fraud,5 5.See infra Subsection I.C.2.Show More intoxication,6 6.Coley v. State, 616 So. 2d 1017, 1023 (Fla. Dist. Ct. App. 1993) (“The prevailing view is that voluntary consumption of drugs or alcohol does not, without more, render consent involuntary.”); State v. Sherrill, No. 71,253, 1995 WL 18253106, at *3–4 (Kan. Ct. App. June 9, 1995) (finding insufficient evidence that the complainant could not consent despite her testimony that “she had consumed a considerable amount of alcoholic liquor”). See generally infra Subsection I.C.3.Show More and mental impairment.7 7.See infra Subsection I.C.3.Show More As Catharine MacKinnon has documented, “Consent as a legal standard in the law of sexual assault commonly exonerates sexual interactions that are one-sided, nonmutual, unwanted, nonvoluntary, nonreciprocal, constrained, compelled, and coerced.”8 8.Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol’y Rev. 431, 443 (2016).Show More

In another corner of criminal law, threats, coercion, fraud, intoxication, and impairment are thought to so significantly undermine autonomy that a person affected by them is deemed irresponsible—both morally and legally—for resulting consequences.9 9.See infra Section II.B.Show More This is the law of proximate causation. Under a causation analysis, the criminal law rigorously interrogates whether a person’s actions are sufficiently autonomous to render that person blameworthy for consequences that follow.10 10.See, e.g., Eric A. Johnson, Trust and the Limits of Trust: Rethinking the Doctrine of Novus Actus Interveniens, 2025 U. Ill. L. Rev. 743, 751–55; Guyora Binder & Luis Chiesa, The Puzzle of Inciting Suicide, 56 Am. Crim. L. Rev. 65, 99 (2019).Show More When a person’s actions are not autonomous, it is often because their autonomy was infringed by some earlier-in-time blameworthy conduct by another, who now carries moral and legal responsibility.11 11.See Michael S. Moore, The Metaphysics of Causal Intervention, 88 Calif. L. Rev. 827, 836 (2000) (“[I]f the defendant coercively supplies the motive for the intervenor’s behavior, then that behavior does not break the causal chain between defendant’s action and the harm.”).Show More

Juxtaposing consent and causation thus reveals a tension in the criminal law’s depictions of individual autonomy—a tension that goes to the heart of what it means to bear moral and legal responsibility for sex. When the law asks whether someone is responsible for an act of sexual intercourse, it is best understood as asking a question about causation. After all, both legal and moral responsibility for an event typically follow from an inquiry into who caused the event to occur.12 12.See Binder & Chiesa, supra note 10, at 70 (explaining that causation in criminal law is “little more than a normative attribution of responsibility for a result”).Show More But when the law concludes that someone consented to an act of sexual intercourse, it also seemingly asserts something about that individual’s moral and legal responsibility. An individual who consents to sex is expected to bear the consequences of that act of consent, for better or worse, without complaint.13 13.See, e.g., Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121, 123 (1996) (“[C]onsent defeats any rights on the part of others (including the person consenting) that the actor not do the wrong act.”).Show More Moreover, because consent operates to absolve other parties from legal responsibility for a sexual act, consent seemingly intervenes in the attribution of responsibility.14 14.See id. at 124 (“Whether it functions as a ‘moral transformative’ or as a ‘stained permission,’ consent derives its normative power from the fact that it alters the obligations and permissions that collectively determine the rightness of others’ actions.”).Show More

These conclusions about moral and legal responsibility for sex are unproblematic when sex goes right. In paradigmatic consensual sexual interactions, sex presumptively happens because there was a prior act of consent. Thus, the law’s conclusions about causal responsibility and its conclusions about consensual responsibility should align.

But when sex goes wrong—when consent is tainted by external factors, including force, coercion, fraud, intoxication, and mental impairment—the criminal law’s causal conclusions diverge sharply from its conclusions about the validity of sexual consent. Consider the situation where sexual consent is fraudulently induced, such as when a doctor tells a patient that sexual intercourse is a necessary component of medical treatment.15 15.See, e.g., Boro v. Superior Ct., 210 Cal. Rptr. 122, 123 (Ct. App. 1985) (defendant posed as a doctor and convinced the victim that she needed to have sex with an anonymous donor in order to treat “a dangerous, highly infectious and perhaps fatal disease”).Show More The criminal law’s causation doctrine would hold that the doctor, rather than the patient, should bear moral and legal responsibility for causing the sex.16 16.See infra Subsection II.C.2.Show More But the criminal law’s consent doctrine would hold that the consent is valid and enforceable,17 17.See infra Subsection I.C.2.Show More rendering the sex noncriminal, and leaving the victim to bear the weight of any experienced harm.

Viewing sexual consent as one act in a chain of actions that results in sexual intercourse reveals a limitation in the structure of U.S. rape law. The typical rape statute in the United States makes sexual nonconsent an attendant circumstance—an extraneous fact that is not causally connected to the essential conduct with which the defendant stands accused.18 18.The traditional common law definition of rape was “carnal knowledge of a woman forcibly and against her will.” 4 William Blackstone, Commentaries *210. In this formulation, still relevant in roughly half of U.S. states, MacKinnon, supra note 8, at 437 & n.26, the element that the intercourse be nonconsensual (or “against her will”) is an attendant circumstance, see, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1121 n.101 (1986). Attendant circumstances “refer to the objective situation that the law requires to exist, in addition to the defendant’s act or any results that the act may cause.” Model Penal Code § 5.01 cmt. at 301 n.9 (A.L.I., Official Draft and Revised Comments 1985).Show More Because of this structural choice, sexual consent renders sexual intercourse noncriminal whenever it is present. External factors that bear on moral responsibility—force, coercion, fraud, and impairment among them—have little doctrinal significance in defining a particular sexual interaction as rape because causation is left out of the picture.19 19.See infra Section I.C.Show More

This revelation invites two further questions, one normative and one doctrinal. Normatively, ought we demand that consent play a causal role in sexual interactions if it is to exonerate them? Stated differently, is the mere presence of legally valid consent morally transformative? Or is sex normatively desirable only when legally valid consent causes subsequent sexual acts? Assigning a causal role to sexual consent seemingly ensures that criminality maps onto our ordinary intuitions about who bears responsibility for a result. If rape law—like criminal law more generally—seeks to track moral responsibility (hence blameworthiness),20 20.Although there are of course varied justifications for the criminal law, many leading theorists agree that blameworthiness is or ought to be the centerpiece of our criminal system. See, e.g., Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 Ohio St. J. Crim. L. 449, 449 (2012); Michael Moore, Placing Blame: A General Theory of the Criminal Law 153–54 (1997); Larry Alexander & Kimberly Kessler Ferzan with Stephen Morse, Crime and Culpability: A Theory of Criminal Law 66–67 (2009).Show More there are at least provisional arguments that causation should be required.21 21.See infra Section III.A.Show More

Doctrinally, contrasting consent and causation invites inquiry into how to structure rape statutes to ensure that consent is causally efficacious. I have been down this road once before, postulating that a rape law modeled on human trafficking laws might profitably incorporate a causation requirement.22 22.Ben A. McJunkin, Rape as Indignity, 109 Corn. L. Rev. 385, 447 (2024).Show More The recent reforms to the Model Penal Code also hint in this direction. Under the model language adopted at the 2022 annual meeting, at least some sexual assaults would require that sexual intercourse be caused by the defendant’s use of force, deception, or extortion (and therefore not caused by the complainant’s consent).23 23.See Model Penal Code §§ 213.1–213.2, 213.4–213.5 (A.L.I., Tentative Draft No. 6, 2022).Show More However, the model language ultimately continues the trend of centering the presence and validity of consent, rather than its causal role in the encounter. Taking consent’s causal role in sexual relations seriously would thus require revisions to rape law that go beyond the new Model Penal Code.

This Article proceeds in three Parts. Part I examines the current role of consent in U.S. rape law and its ostensible commitment to protecting individual sexual autonomy. This Part catalogues how consent has been found to be present and valid even in the face of threats, coercion, fraud, or mental impairment. Part II examines the doctrines of proximate and intervening causation, exploring these doctrines’ philosophical grounding in individual autonomy. In contrast to Part I, this Part catalogues how threats, coercion, fraud, and mental impairment interrupt causation precisely because they so impair autonomy as to absolve individuals of moral and legal responsibility. In light of this juxtaposition, Part III constructs a normative argument that a proper understanding of autonomy requires that consent play a causal role in sexual intercourse if intercourse is to be normatively desirable. It then explores the consequences of this argument for rape law reformers: rape should not be understood as sex in the absence of consent, but rather as causing sex through specified, prohibited means other than consent, allowing sexual consent’s doctrinal role to track its normative one.

  1.  See, e.g., Stuart P. Green, Criminalizing Sex: A Unified Liberal Theory 25 (2020); see also Alan Wertheimer, Consent to Sexual Relations 31 (2003) (“In effect, autonomy refers to the value that is to be protected, whereas consent refers to the means for protecting and promoting that value: we protect a person’s autonomy by prohibiting actions to which she does not consent and empowering her to engage in actions to which she does consent.” (emphasis omitted)); Luis E. Chiesa, Solving the Riddle of Rape-by-Deception, 35 Yale L. & Pol’y Rev. 407, 419 (2017) (“[C]onsent is the tool that law most commonly deploys in order to operationalize conceptions of freedom and autonomy.”); Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev. 131, 187 (2002) (“As many commentators have observed, the central value protected by sexual offense provisions is sexual autonomy or sexual integrity, the violation of which represents a unique, not readily comparable, type of harm to the victim.” (footnotes omitted)). ↑
  2.  See, e.g., Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 162–68, 173–77 (1998) (detailing scholarly criticisms of rape law’s treatment of sexual fraud and sexual coercion); see also Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 114–36 (1998) (critiquing rape law’s treatment of coercive situations as consensual). ↑
  3.  See infra Subsection I.C.1. ↑
  4.  See infra Subsection I.C.1. ↑
  5.  See infra Subsection I.C.2. ↑
  6.  Coley v. State, 616 So. 2d 1017, 1023 (Fla. Dist. Ct. App. 1993) (“The prevailing view is that voluntary consumption of drugs or alcohol does not, without more, render consent involuntary.”); State v. Sherrill, No. 71,253, 1995 WL 18253106, at *3–4 (Kan. Ct. App. June 9, 1995) (finding insufficient evidence that the complainant could not consent despite her testimony that “she had consumed a considerable amount of alcoholic liquor”). See generally infra Subsection I.C.3. ↑
  7.  See infra Subsection I.C.3. ↑
  8.  Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol’y Rev. 431, 443 (2016). ↑
  9.  See infra Section II.B. ↑
  10.  See, e.g., Eric A. Johnson, Trust and the Limits of Trust: Rethinking the Doctrine of Novus Actus Interveniens, 2025 U. Ill. L. Rev. 743, 751–55; Guyora Binder & Luis Chiesa, The Puzzle of Inciting Suicide, 56 Am. Crim. L. Rev. 65, 99 (2019). ↑
  11.  See Michael S. Moore, The Metaphysics of Causal Intervention, 88 Calif. L. Rev. 827, 836 (2000) (“[I]f the defendant coercively supplies the motive for the intervenor’s behavior, then that behavior does not break the causal chain between defendant’s action and the harm.”). ↑
  12.  See Binder & Chiesa, supra note 10, at 70 (explaining that causation in criminal law is “little more than a normative attribution of responsibility for a result”). ↑
  13.  See, e.g., Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121, 123 (1996) (“[C]onsent defeats any rights on the part of others (including the person consenting) that the actor not do the wrong act.”). ↑
  14.  See id. at 124 (“Whether it functions as a ‘moral transformative’ or as a ‘stained permission,’ consent derives its normative power from the fact that it alters the obligations and permissions that collectively determine the rightness of others’ actions.”). ↑
  15.  See, e.g., Boro v. Superior Ct., 210 Cal. Rptr. 122, 123 (Ct. App. 1985) (defendant posed as a doctor and convinced the victim that she needed to have sex with an anonymous donor in order to treat “a dangerous, highly infectious and perhaps fatal disease”). ↑
  16.  See infra Subsection II.C.2. ↑
  17.  See infra Subsection I.C.2. ↑
  18.  The traditional common law definition of rape was “carnal knowledge of a woman forcibly and against her will.” 4 William Blackstone, Commentaries *210. In this formulation, still relevant in roughly half of U.S. states, MacKinnon, supra note 8, at 437 & n.26, the element that the intercourse be nonconsensual (or “against her will”) is an attendant circumstance, see, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1121 n.101 (1986). Attendant circumstances “refer to the objective situation that the law requires to exist, in addition to the defendant’s act or any results that the act may cause.” Model Penal Code § 5.01 cmt. at 301 n.9 (A.L.I., Official Draft and Revised Comments 1985). ↑
  19.  See infra Section I.C. ↑
  20.  Although there are of course varied justifications for the criminal law, many leading theorists agree that blameworthiness is or ought to be the centerpiece of our criminal system. See, e.g., Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 Ohio St. J. Crim. L. 449, 449 (2012); Michael Moore, Placing Blame: A General Theory of the Criminal Law 153–54 (1997); Larry Alexander & Kimberly Kessler Ferzan with Stephen Morse, Crime and Culpability: A Theory of Criminal Law 66–67 (2009). ↑
  21.  See infra Section III.A. ↑
  22.  Ben A. McJunkin, Rape as Indignity, 109 Corn. L. Rev. 385, 447 (2024). ↑

  23.  See Model Penal Code §§ 213.1–213.2, 213.4–213.5 (A.L.I., Tentative Draft No. 6, 2022). ↑

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