Article

Municipal Immunity

Although qualified immunity has taken center stage in recent debates about police misconduct and paths to reform, this Article focuses on another doctrine that has been largely overlooked yet merits at least equal attention—the standards for holding local governments liable for constitutional violations of their officers (also referred to as Monell doctrine, in reference to the Supreme Court case that first recognized the right to sue municipalities under Section 1983).

This Article reports the findings of the largest and most comprehensive study to date examining and comparing the challenges of qualified immunity and Monell doctrine in almost 1,200 police misconduct lawsuits filed in five federal districts across the country. I find that it is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity. In my dataset, local governments challenged Monell claims more often than individual defendants raised qualified immunity—at both the motion to dismiss and summary judgment stages—and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity. Plaintiffs regularly abandoned their Monell claims against local governments during the course of litigation as well. Very few Monell claims made it to trial; even fewer succeeded. If popular commentary has overstated the harms of qualified immunity doctrine, it has understated the challenges of Monell.

To ensure that people are compensated when their constitutional rights are violated, local governments should be held vicariously liable for their officers’ constitutional violations. Strengthening the deterrent effect of Section 1983 suits on officers and local governments is a more complicated task, but a package of state and local reforms I outline holds promise. These proposed reforms may be even more important than ending qualified immunity to our system of constitutional remediation; they may also be more palatable to lawmakers and law enforcement officials who have thus far opposed ending qualified immunity. This may be one of those rare instances when the most pressing reform—ending Monell—is also the most pragmatic.

Introduction

Qualified immunity has taken center stage in recent debates about police misconduct and paths to reform. In the weeks after George Floyd’s murder in May 2020, people held handwritten signs in protests across the country, calling for the defense’s abolition.1 1.See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/‌qualified-immunity.html [https://perma.cc/PS4C-ZQSX]; Kimberly Kindy, Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Nearly Every Bill., Wash. Post (Oct. 7, 2021, 6:00 AM), https://www.washingtonpost.com/politics/‌qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1‌-42a8138f132a_story.html [https://perma.cc/4QUY-WC9M].Show More Eliminating qualified immunity quickly became a key component of proposed legislation introduced in Congress and state legislatures to shore up civil rights protections.2 2.See, e.g., Madeleine Carlisle, The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know, Time (June 3, 2021, 6:35 PM), https://time.com/‌6061624/what-is-qualified-immunity/ [https://perma.cc/GCB4-72PG] (describing Congress’s George Floyd Justice in Policing Act); Kindy, supranote 1 (describing state legislative efforts).Show More Following the January 2023 killing of Tyre Nichols by Memphis police officers,3 3.Jonathan Franklin & Emma Bowman, What We Know About the Killing of Tyre Nichols, NPR (Jan. 28, 2023, 4:50 PM), https://www.npr.org/2023/01/28/1151504967/tyre-nichols-memphis-police-body-cam-video [https://perma.cc/JGR2-D7Z2].Show More calls to end qualified immunity resumed with comparable passion.4 4.See, e.g., Rep. Justin Amash (@justinamash), Twitter (Jan. 28, 2023, 10:58 AM), https://twitter.com/justinamash/status/1619364385214066688 [https://perma.cc/V97Z-Z3‌SA] (“Reintroduce and pass my tripartisan legislation to end qualified immunity.”); Rep. Ilhan Omar (@IlhanMN), Twitter (Jan. 27, 2023, 9:12 PM), https://twitter.com/IlhanMN/status/‌1619156319923212288 [https://perma.cc/6EQ7-75VM] (“End Qualified Immunity!”).Show More

Qualified immunity is a deserving target of criticism—it shields individual officers from civil liability, even when they have violated the Constitution, simply because there is no prior court opinion holding unconstitutional nearly identical facts.5 5.See, e.g., Carlisle, supra note 2; Joanna C. Schwartz, Suing Police for Abuse Is Nearly Impossible. The Supreme Court Can Fix That., Wash. Post (June 3, 2020, 2:17 PM), https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-co‌urt-immunity/ [https://perma.cc/TA4E-VN5H].Show More And although the U.S. Supreme Court has justified qualified immunity as necessary to protect officers from the costs and burdens of litigation in “insubstantial” cases,6 6.Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982).Show More available evidence makes clear that the doctrine is neither necessary nor well-suited to achieve these policy goals.7 7.See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60–64 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (finding, based on a review of 1,183 police misconduct cases, that qualified immunity leads to the dismissal of less than 4% of civil rights cases, undermining the role of qualified immunity as a protection against the burdens of discovery and trial, and may actually increase litigation costs); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–43 (2014) [hereinafter Schwartz, Police Indemnification] (showing that officers virtually never contribute to settlements and judgments against them, limiting the need for qualified immunity to protect officers from financial liability).Show More But there is another legal doctrine that has been largely overlooked8 8.For a few exceptions, see Mark C. Niles, Here’s a More Important Reform than Ending Qualified Immunity,LawFare (May 18, 2021, 2:13 PM), https://www.lawfareblog.com/heres-more-important-reform-ending-qualified-immunity [https://perma.cc/84VD-Z84Y]; Orion de Nevers, A Dubious Legal Doctrine Protects Cities from Lawsuits over Police Brutality, Slate (June 2, 2020, 2:16 PM), https://slate.com/news-and-politics/2020/06/monell-supreme-court-qualified-immunity.html [https://perma.cc/PM6B-GM3B]. Municipal liability has been a more sustained focus of study and criticism among scholars and advocates. For examples of this research and commentary, see infraSection I.C.Show More in the current debate about civil rights enforcement, yet merits comparable attention and critique—the standard for holding local governments liable for the constitutional violations of their officers.

In 1978, in Monell v. Department of Social Services, the Supreme Court first ruled that local governments could be sued under 42 U.S.C. § 1983 for constitutional violations by their employees.9 9.436 U.S. 658, 663 (1978).Show More But the Court ruled that local governments could not be held vicariously liable for their employees’ constitutional violations—as private employers are for the torts of their employees.10 10.Id. at 691–95.Show More Instead, a plaintiff must prove that the local government had an unlawful policy or custom that caused their employee to violate the Constitution.11 11.Id.at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”).Show More

Monell, and the Supreme Court’s and lower courts’ decisions that have developed the contours of Monell doctrine over the past forty-five years, have inspired harsh critique.12 12.These critiques, along with an overview of the history of Monell doctrine and its contours, are outlined in Part I.Show More Some argue that the Court’s rejection of respondeat superior liability in its Monell decision was based on a misunderstanding of the legal landscape in 1871, when Section 1983 became law, as well as the statute’s legislative history.13 13.See infranote 89 and accompanying text.Show More Commentators criticize the various theories that have emerged for proving municipal liability under Monell as exceedingly complex and indeterminate—a “maze,” in Karen Blum’s view.14 14.Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 914 (2015); see also infranotes 90–91 and accompanying text (describing critiques of Monell doctrine’s complexity).Show More And many contend that Monell’s standards are so difficult for plaintiffs to satisfy that municipal liability is “practically unavailable to litigants.”15 15.Brian J. Serr, Turning Section 1983’s Protection of Civil Rights into an Attractive Nuisance: Extra-Textual Barriers to Municipal Liability Under Monell, 35 Ga. L. Rev. 881, 883 (2001); see also infra notes 92–96 and accompanying text (describing the prevailing view that it is nearly impossible for plaintiffs to prevail on Monell claims).Show More

Monell’s historical critique is well documented. The critique of Monell’s complex and indeterminate standards is self-evident. Yet, the claim that it is near-impossible to prevail on Monell claims is based on little more than anecdote and supposition. Over the past several years, we have come to learn a great deal about how qualified immunity works on the ground—how it influences attorneys’ decisions about whether to take a case;16 16.See generally Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file Bivens claims against federal officials); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. 1101 (2020) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file § 1983 claims against law enforcement defendants).Show More the frequency with which the defense is raised, granted by courts, and is dispositive;17 17.See generally Schwartz, How Qualified Immunity Fails, supranote 7 (reporting these findings).Show More the role that it plays at trial;18 18.See Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2068 (2018) (finding that “juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense,” but that “when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial”).Show More and the success of qualified immunity on appeal.19 19.See generally Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55 (2016) (measuring variation among circuit judges in their assessment of qualified immunity appeals); Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment (Cardozo L. Sch. Fac. Rsch. Paper No. 634, 2021), https://ssrn.com/abstract‌=3798024 [https://perma.cc/WJR2-KWVZ] (finding that appellate courts reverse decisions denying qualified immunity far more often than they reverse decisions granting qualified immunity).Show More But we have comparably little understanding of how federal constitutional claims against local governments fare in court.20 20.For important research about municipal liability claims that is a clear exception to this general observation, see Nancy Leong, Municipal Failures, 108 Cornell L. Rev. 345, 380 (2023) [hereinafter Leong, Municipal Failures] (examining the success of failure-to-supervise claims on appeal and arguing that such claims are often overlooked by attorneys but successful in court); Nancy Leong, Civil Rights Liability for Bad Hiring 1, 46–49 (Aug. 8, 2023) (unpublished manuscript) (on file with author) (examining the difficulty of proving failure-to-screen claims). See generally Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures inMonell Litigation, Emory L.J. (forthcoming 2024), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=4378738 [https://perma.cc/MK7R-PZAX] (examining widespread deficiencies in complaints’ Monell allegations).Show More How often do plaintiffs sue local governments for the constitutional violations of their officers? How often do local governments seek to dismiss these claims before and after discovery? How often do courts grant governments’ motions? How often do plaintiffs abandon their Monell claims?

In this Article, I begin to fill these critically important gaps. In 2017, I published a study that analyzed the federal dockets of 1,183 lawsuits filed against law enforcement defendants over a two-year period in five federal district courts across the country to better understand the role qualified immunity actually plays in police misconduct cases.21 21.See generally Schwartz, How Qualified Immunity Fails, supra note 7 (finding that fewer than 4% of the police misconduct cases filed were dismissed on qualified immunity grounds, offering possible explanations for these findings, and considering their implications for qualified immunity doctrine’s goals).Show More In this Article, I examine those same 1,183 federal case dockets to understand how Monell claims fared in these lawsuits.

In my 2017 study, I concluded that qualified immunity doctrine had a more nuanced impact on police misconduct cases than is suggested in court opinions and critical commentary.22 22.See id. at 9–11; see also Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 316–17 (2020) [hereinafter Schwartz, After Qualified Immunity] (offering several predictions about how constitutional litigation would function in a world without qualified immunity).Show More I found that qualified immunity doctrine increases the burdens and time spent on civil rights cases for plaintiffs’ attorneys, and likely discourages lawyers from taking some civil rights cases.23 23.See Schwartz, How Qualified Immunity Fails, supra note 7, at 50–51 (arguing that qualified immunity increases the costs and time necessary to litigate civil rights cases, and may discourage attorneys from accepting civil rights cases); Schwartz, After Qualified Immunity, supranote 22, at 338–51 (same).Show More But qualified immunity is raised by defendants and granted by courts less frequently than is suggested in popular critiques, and is the reason a relatively small percentage of civil rights cases are dismissed.24 24.See Schwartz, How Qualified Immunity Fails, supranote 7, at 48–49 (describing these findings).Show More

Having reviewed these same cases to understand how constitutional claims against local governments progress in federal courts, I find that the doctrine makes it extremely difficult for plaintiffs to prevail on Monell claims challenging police policies and practices. If popular commentary has overstated the harms of qualified immunity doctrine, it has understated the challenges of Monell.

It is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity when raised by individual government defendants.25 25.I outline these findings in Part II.Show More In my dataset, local governments challenged municipal liability claims more often than individual defendants raised qualified immunity—at both the motion to dismiss and summary judgment stages—and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity. Plaintiffs regularly abandoned their Monell claims against local governments during the course of litigation as well. Very few Monell claims made it to trial; even fewer succeeded.

Careful study of the dockets and decisions in my dataset suggests several reasons that it might be so difficult to plead and prove Monell claims.26 26.I describe these possible explanations for my findings in Part III.Show More First, the plausibility standard articulated by the Supreme Court in Iqbal and Twombly makes it particularly challenging for plaintiffs to survive motions to dismiss;27 27.See infra notes 121–26 (outlining findings in the dataset); infra notes 153–57 and accompanying text (presenting the plausibility standard theory).Show More in many cases, plaintiffs cannot find the type of evidence that would support their Monell claims without formal discovery. Second, at summary judgment, plaintiffs have a heavy burden—in addition to proving that their constitutional rights were violated, they must come forth with evidence of an unconstitutional policy or a pattern of prior misconduct that suggests an unwritten policy, the policymaker’s deliberate indifference to that prior misconduct, and proof that that deliberate indifference caused the constitutional violation.28 28.See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989).Show More Even when plaintiffs managed to offer proof to support each of these elements, courts in my dataset found that the evidence was not sufficient to create a material factual dispute. Third, Monell claims are expensive, even at the pleadings stage, and these costs may lead plaintiffs to abandon their Monell claims—especially if the named officers are likely to be indemnified. Fourth, Monell doctrine is unsettled;29 29.See, e.g., Michael Avery, David Rudovsky, Karen M. Blum & Jennifer Laurin, Police Misconduct Law and Litigation § 4:15 (3d ed. 2022) (“Despite the resolution of several principal questions in this area by the Supreme Court, one should still expect both factual and legal issues to be hotly contested where municipal liability claims are made.”); see also infranotes 199–201 and accompanying text (describing intra-circuit disagreement about how to apply Iqbal’s “plausibility” pleading standard to Monell claims).Show More multiple open questions lead courts to apply widely varying standards, even in the same circuit, which likely encourages defendants to file more motions and creates greater uncertainties for plaintiffs evaluating the costs and benefits of pursuing a Monell claim.

Having explored the challenges associated with bringing Monell claims, I next consider the extent to which these challenges frustrate our system of civil rights remediation.30 30.I set out these challenges in Part IV.Show More Some commentators—myself included—have observed that the difficulty of prevailing on Monell claims may matter little because individual officers can be sued and are almost always indemnified by their government employers.31 31.See infranote 205 and accompanying text.Show More Further reflection and research has led me to reconsider this view. It is true that when a plaintiff prevails against an officer and the local government indemnifies, she effectively recovers from the city, even if her Monell claim fails. It is also true that, as I found in a prior study, local governments—not officers—pay 99.98% of the money received by plaintiffs in police misconduct cases.32 32.See generally Schwartz, Police Indemnification, supranote 7, at 890 (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.”).Show More But, despite the ubiquity of indemnification, there are multiple ways in which municipal immunity enlarges the schism between right and remedy. If an officer who violated a person’s constitutional rights is denied indemnification, or granted qualified immunity, or cannot be identified by name, a Monell claim against the local government can be the only opportunity to recover. Monell claims can also afford the only way to win a judgment against a local government that may create political pressure to change, and secure injunctive relief.

Section 1983 was enacted more than 150 years ago as a means to compensate people whose constitutional rights have been violated and deter future misconduct.33 33.See Monroe v. Pape, 365 U.S. 167, 171 (1961) (describing the historical context of Section 1983).Show More Monell doctrine in its current form undermines both of these values. To ensure that people are compensated, local governments should be held vicariously liable when their officers violate the Constitution. Strengthening the deterrent effect of Section 1983 suits on officers and local governments is a more complicated task, but a package of state and local reforms I outline holds promise.34 34.These proposals are described in further detail inPart V.Show More

My recommendations, although ambitious, are not merely academic musings. Indeed, these types of changes to municipal liability doctrine may actually be more politically palatable than are proposals to do away with qualified immunity. Critics of qualified immunity reform rest their opposition on the (baseless) concern that officers will be bankrupted for reasonable mistakes and “leave the profession in droves”;35 35.See, e.g., Kindy, supra note 1 (“[State legislative efforts to limit qualified immunity] failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.”).Show More vicarious liability for local governments would eliminate these concerns about officers’ bank accounts and motivations.36 36.For bills introduced by Congress and state legislatures, and enacted in New Mexico, that would make local governments vicariously liable for constitutional violations by their officers, see infranotes 261–64 and accompanying text.Show More Perhaps for this reason, Republican Senators Tim Scott and Lindsey Graham, who are staunchly opposed to any provision ending qualified immunity, have each signaled that they favor holding local governments liable for their officers’ constitutional violations.37 37.See Billy Binion, Tim Scott Is Proposing a Major Reform to Qualified Immunity, Reason (Apr. 22, 2021, 12:24 PM), https://reason.com/2021/04/22/tim-scott-is-proposing-a-major-reform-to-qualified-immunity/ [https://perma.cc/Q2QA-D6ZE] (describing Senator Scott’s proposal to create vicarious liability during police reform legislation negotiations after George Floyd’s death); Janice Hisle, In Wake of Tyre Nichols’s Death, Sen. Lindsey Graham Suggests Policing Reform Compromise, Epoch Times (Jan. 31, 2023), https://www.theepochtimes.‌com/in-wake-of-tyre-nichols-death-sen-lindsey-graham-suggests-policing-reform-compromi‌se_5020259.html [https://perma.cc/5ZW8-LDEM] (describing Senator Graham’s suggestion that police departments be held liable following the killing of Tyre Nichols). For articles describing Senator Scott’s and Senator Graham’s opposition to qualified immunity reform, see Sahil Kapur & Scott Wong, Senators Aim to Revive Police Reform Talks but Face Major Hurdles, NBC News (Jan. 30, 2023, 8:58 PM), https://www.nbcnews.com/politics/congress/‌senators-aim-revive-police-reform-talks-face-major-hurdles-rcna68171 [https://perma.cc/R5‌ZQ-RHET] (“I think qualified immunity should stay in place for individual officers, but I’ve always been of the view that departments need to be held accountable.” (quoting Senator Graham)); Melissa Quinn, Tim Scott Says Ending Qualified Immunity Is “Poison Pill” in Police Reform Bill, CBS News (June 14, 2020, 9:48 AM), https://www.cbsnews.com/news/‌tim-scott-police-reform-bill-qualified-immunity-face-the-nation/ [https://perma.cc/L9JA-7W‌DN] (“From the Republican perspective, and the president has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side.” (quoting Senator Scott)).Show More

The injustices of qualified immunity have been a worthy focus of reform efforts in recent years. But vicarious liability for local governments is an equally important goal—and a more achievable one. Alongside handwritten signs demanding an end to qualified immunity, it is time to start raising signs reading “End Monell.”

  1.  See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/‌qualified-immunity.html [https://perma.cc/PS4C-ZQSX]; Kimberly Kindy, Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Nearly Every Bill., Wash. Post (Oct. 7, 2021, 6:00 AM), https://www.washingtonpost.com/politics/‌qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1‌-42a8138f132a_story.html [https://perma.cc/4QUY-WC9M]. ↑
  2.  See, e.g., Madeleine Carlisle, The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know, Time (June 3, 2021, 6:35 PM), https://time.com/‌6061624/what-is-qualified-immunity/ [https://perma.cc/GCB4-72PG] (describing Congress’s George Floyd Justice in Policing Act); Kindy, supra note 1 (describing state legislative efforts). ↑
  3.  Jonathan Franklin & Emma Bowman, What We Know About the Killing of Tyre Nichols, NPR (Jan. 28, 2023, 4:50 PM), https://www.npr.org/2023/01/28/1151504967/tyre-nichols-memphis-police-body-cam-video [https://perma.cc/JGR2-D7Z2]. ↑
  4.  See, e.g., Rep. Justin Amash (@justinamash), Twitter (Jan. 28, 2023, 10:58 AM), https://twitter.com/justinamash/status/1619364385214066688 [https://perma.cc/V97Z-Z3‌SA] (“Reintroduce and pass my tripartisan legislation to end qualified immunity.”); Rep. Ilhan Omar (@IlhanMN), Twitter (Jan. 27, 2023, 9:12 PM), https://twitter.com/IlhanMN/status/‌1619156319923212288 [https://perma.cc/6EQ7-75VM] (“End Qualified Immunity!”). ↑
  5.  See, e.g., Carlisle, supra note 2; Joanna C. Schwartz, Suing Police for Abuse Is Nearly Impossible. The Supreme Court Can Fix That., Wash. Post (June 3, 2020, 2:17 PM), https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-co‌urt-immunity/ [https://perma.cc/TA4E-VN5H]. ↑
  6.  Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982). ↑
  7.  See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60–64 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (finding, based on a review of 1,183 police misconduct cases, that qualified immunity leads to the dismissal of less than 4% of civil rights cases, undermining the role of qualified immunity as a protection against the burdens of discovery and trial, and may actually increase litigation costs); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–43 (2014) [hereinafter Schwartz, Police Indemnification] (showing that officers virtually never contribute to settlements and judgments against them, limiting the need for qualified immunity to protect officers from financial liability). ↑
  8.  For a few exceptions, see Mark C. Niles, Here’s a More Important Reform than Ending Qualified Immunity, LawFare (May 18, 2021, 2:13 PM), https://www.lawfareblog.com/heres-more-important-reform-ending-qualified-immunity [https://perma.cc/84VD-Z84Y]; Orion de Nevers, A Dubious Legal Doctrine Protects Cities from Lawsuits over Police Brutality, Slate (June 2, 2020, 2:16 PM), https://slate.com/news-and-politics/2020/06/monell-supreme-court-qualified-immunity.html [https://perma.cc/PM6B-GM3B]. Municipal liability has been a more sustained focus of study and criticism among scholars and advocates. For examples of this research and commentary, see infra Section I.C. ↑
  9.  436 U.S. 658, 663 (1978). ↑
  10.  Id. at 691–95. ↑
  11.  Id. at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). ↑
  12.  These critiques, along with an overview of the history of Monell doctrine and its contours, are outlined in Part I. ↑
  13.  See infra note 89 and accompanying text. ↑
  14.  Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 914 (2015); see also infra notes 90–91 and accompanying text (describing critiques of Monell doctrine’s complexity). ↑
  15.  Brian J. Serr, Turning Section 1983’s Protection of Civil Rights into an Attractive Nuisance: Extra-Textual Barriers to Municipal Liability Under Monell, 35 Ga. L. Rev. 881, 883 (2001); see also infra notes 92–96 and accompanying text (describing the prevailing view that it is nearly impossible for plaintiffs to prevail on Monell claims). ↑
  16.  See generally Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file Bivens claims against federal officials); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. 1101 (2020) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file § 1983 claims against law enforcement defendants). ↑
  17.  See generally Schwartz, How Qualified Immunity Fails, supra note 7 (reporting these findings). ↑
  18.  See Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2068 (2018) (finding that “juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense,” but that “when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial”). ↑
  19.  See generally Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55 (2016) (measuring variation among circuit judges in their assessment of qualified immunity appeals); Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment (Cardozo L. Sch. Fac. Rsch. Paper No. 634, 2021), https://ssrn.com/abstract‌=3798024 [https://perma.cc/WJR2-KWVZ] (finding that appellate courts reverse decisions denying qualified immunity far more often than they reverse decisions granting qualified immunity). ↑
  20.  For important research about municipal liability claims that is a clear exception to this general observation, see Nancy Leong, Municipal Failures, 108 Cornell L. Rev. 345, 380 (2023) [hereinafter Leong, Municipal Failures] (examining the success of failure-to-supervise claims on appeal and arguing that such claims are often overlooked by attorneys but successful in court); Nancy Leong, Civil Rights Liability for Bad Hiring 1, 46–49 (Aug. 8, 2023) (unpublished manuscript) (on file with author) (examining the difficulty of proving failure-to-screen claims). See generally Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures in Monell Litigation, Emory L.J. (forthcoming 2024), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=4378738 [https://perma.cc/MK7R-PZAX] (examining widespread deficiencies in complaints’ Monell allegations). ↑
  21.  See generally Schwartz, How Qualified Immunity Fails, supra note 7 (finding that fewer than 4% of the police misconduct cases filed were dismissed on qualified immunity grounds, offering possible explanations for these findings, and considering their implications for qualified immunity doctrine’s goals). ↑
  22.  See id. at 9–11; see also Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 316–17 (2020) [hereinafter Schwartz, After Qualified Immunity] (offering several predictions about how constitutional litigation would function in a world without qualified immunity). ↑
  23.  See Schwartz, How Qualified Immunity Fails, supra note 7, at 50–51 (arguing that qualified immunity increases the costs and time necessary to litigate civil rights cases, and may discourage attorneys from accepting civil rights cases); Schwartz, After Qualified Immunity, supra note 22, at 338–51 (same). ↑
  24.  See Schwartz, How Qualified Immunity Fails, supra note 7, at 48–49 (describing these findings). ↑
  25.  I outline these findings in Part II. ↑
  26.  I describe these possible explanations for my findings in Part III. ↑
  27.  See infra notes 121–26 (outlining findings in the dataset); infra notes 153–57 and accompanying text (presenting the plausibility standard theory). ↑
  28.  See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989). ↑
  29.  See, e.g., Michael Avery, David Rudovsky, Karen M. Blum & Jennifer Laurin, Police Misconduct Law and Litigation § 4:15 (3d ed. 2022) (“Despite the resolution of several principal questions in this area by the Supreme Court, one should still expect both factual and legal issues to be hotly contested where municipal liability claims are made.”); see also infra notes 199–201 and accompanying text (describing intra-circuit disagreement about how to apply Iqbal’s “plausibility” pleading standard to Monell claims). ↑
  30.  I set out these challenges in Part IV. ↑
  31.  See infra note 205 and accompanying text. ↑
  32.  See generally Schwartz, Police Indemnification, supra note 7, at 890 (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.”). ↑
  33.  See Monroe v. Pape, 365 U.S. 167, 171 (1961) (describing the historical context of Section 1983). ↑
  34.  These proposals are described in further detail in Part V. ↑
  35.  See, e.g., Kindy, supra note 1 (“[State legislative efforts to limit qualified immunity] failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.”). ↑
  36.  For bills introduced by Congress and state legislatures, and enacted in New Mexico, that would make local governments vicariously liable for constitutional violations by their officers, see infra notes 261–64 and accompanying text. ↑

  37.  See Billy Binion, Tim Scott Is Proposing a Major Reform to Qualified Immunity, Reason (Apr. 22, 2021, 12:24 PM), https://reason.com/2021/04/22/tim-scott-is-proposing-a-major-reform-to-qualified-immunity/ [https://perma.cc/Q2QA-D6ZE] (describing Senator Scott’s proposal to create vicarious liability during police reform legislation negotiations after George Floyd’s death); Janice Hisle, In Wake of Tyre Nichols’s Death, Sen. Lindsey Graham Suggests Policing Reform Compromise, Epoch Times (Jan. 31, 2023), https://www.theepochtimes.‌com/in-wake-of-tyre-nichols-death-sen-lindsey-graham-suggests-policing-reform-compromi‌se_5020259.html [https://perma.cc/5ZW8-LDEM] (describing Senator Graham’s suggestion that police departments be held liable following the killing of Tyre Nichols). For articles describing Senator Scott’s and Senator Graham’s opposition to qualified immunity reform, see Sahil Kapur & Scott Wong, Senators Aim to Revive Police Reform Talks but Face Major Hurdles, NBC News (Jan. 30, 2023, 8:58 PM), https://www.nbcnews.com/politics/congress/‌senators-aim-revive-police-reform-talks-face-major-hurdles-rcna68171 [https://perma.cc/R5‌ZQ-RHET] (“I think qualified immunity should stay in place for individual officers, but I’ve always been of the view that departments need to be held accountable.” (quoting Senator Graham)); Melissa Quinn, Tim Scott Says Ending Qualified Immunity Is “Poison Pill” in Police Reform Bill, CBS News (June 14, 2020, 9:48 AM), https://www.cbsnews.com/news/‌tim-scott-police-reform-bill-qualified-immunity-face-the-nation/ [https://perma.cc/L9JA-7W‌DN] (“From the Republican perspective, and the president has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side.” (quoting Senator Scott)). ↑

Second-Order Decisions in Rights Conflicts

Introduction

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

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

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

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

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

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

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

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

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

The New Major Questions Doctrine

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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