Article

Tradition and Feminism in Constitutional Rights Adjudication

In recent years, “tradition” has been influentially invoked in constitutional rights adjudication and legal scholarship. The Supreme Court, in contexts ranging from abortion to the Second Amendment to freedom of speech, has looked to tradition to illuminate the contours of constitutional rights and the boundaries of permissible government regulation. Some legal theorists have defended “traditionalism” as a way to tether constitutional rulings to the people’s customs instead of judges’ moral views.

From a feminist perspective, the rise of tradition may be cause for concern, if not alarm. Why integrate into constitutional rights adjudication the practices and understandings of eras in which women were subject to severe political, economic, and social subordination? Yet the relationship between feminism and traditionalism depends on the form that traditionalism takes: what it is, how it is justified, and how it responds to moral critique.

This Article unpacks the idea of tradition, and it investigates the interaction between tradition and women’s rights in constitutional law. I argue that a concern for tradition, properly understood, contains resources to guide an approach toward constitutional adjudication that can be conducive to, rather than hostile to, women’s rights. For example, traditionalists often seek to glean insight from concrete experience rather than relying on abstract principles; they should therefore examine a range of experiences, including those of women. And the traditionalist interest in continuity supports acceptance of the last century’s advancements in women’s rights rather than attempts to “roll back the clock.”

Thus, values integral to traditionalism can support positions favorable to women’s rights. I apply this view of tradition to several constitutional questions, including the right to contraception, the permissibility of public single-sex education, pregnancy discrimination, and the scope of the Equal Protection Clause. I also engage in broader reflection about the determinacy of traditionalist analysis and the relationship between traditionalist reasoning and moral evaluation.

Introduction

“Tradition” has become a notable category in constitutional rights adjudication and scholarship. The Supreme Court stated in the abortion case Dobbs that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,”1 1.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2253–54 (2022).Show More and in the Second Amendment case Bruen that to regulate firearms, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition.”2 2.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). For other recent Supreme Court invocations of tradition, see, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2431 (2022) (Establishment Clause); Vidal v. Elster, 144 S. Ct. 1507, 1518–19 (2024) (speech).Show More Beyond the pages of the U.S. Reports, some legal scholars have defended “traditions”—understood, in one proponent’s words, in terms of “political and cultural practices of substantial duration”3 3.Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev. 1123,1125 (2020).Show More—as valuable sources of constitutional insight.4 4.See, e.g., Marc O. DeGirolami, Traditionalism Rising, 24 J. Contemp. Legal Issues 9, 54–56 (2023); Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 Utah L. Rev. 665,681–90; see also Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. 1477, 1554–55 (2023) (referring to “living traditionalism” as “ineliminable, spreading, and increasingly deliberate,” though also voicing concerns with the methodology).Show More

From a feminist perspective, the rise of tradition may be cause for concern, if not alarm. Why turn to tradition in constitutional rights adjudication, especially in cases implicating women’s rights issues, when many relevant traditions emerged from periods in which women faced severe political, economic, and social subordination? Tradition may seem starkly at odds with regard for women’s equal citizenship stature.

Yet the relationship between tradition and women’s status depends on the nature of tradition—what tradition involves, how tradition affects constitutional rights claims, and how moral critiques of tradition are addressed. This Article interrogates the idea of tradition, and it examines the relationship between tradition and women’s rights in constitutional adjudication.

I argue that a concern for tradition, properly understood, contains resources to guide an approach toward constitutional adjudication that can be conducive to, rather than hostile to, women’s rights. Here are a couple of illustrations. Traditions often embody insights gleaned from concrete experience. Instead of reasoning about topics like contraception and sexual harassment in the abstract, therefore, one should seek to understand the experiences of women whose voices may not be fully captured by dominant narratives. Moreover, traditionalists value continuity rather than avulsive change. This favors acceptance of the last century’s advancements in women’s rights rather than attempts to “roll back the clock.” Accordingly, one should reject readings of the Fourteenth Amendment’s Equal Protection Clause that would, in excluding sex discrimination, destabilize decades of prior interpretations. There are doubtless tensions between feminism and certain forms of traditionalist reasoning. But tradition also has egalitarian potential, which this Article seeks to unlock.

To capture the approach to tradition advocated here, I use the term “dialectical traditionalism.” At a high level, this view underscores the possibility of productive dialogue between past and present, with the prospect of transforming the past without eliminating its instructive power. Traditions can, indeed must, change over time to ensure continuity in different circumstances. But they can change in ways that preserve a link to the past and reflect openness to the insight to be derived from longstanding practices.

How? Dialectical traditionalists, in addition to drawing on a diverse range of traditions and emphasizing legal continuity (as just proposed), can pursue several other avenues. One is to recognize that practices with troubling roots can evolve over time. For instance, single-sex education may not today reflect detrimental assessments of women in the way it did historically, and this militates against a ruling that the practice is unconstitutional. A second avenue is to critique certain strands of tradition in light of other customs or collective values—by contending, say, that sex stereotyping in the workplace runs contrary to American meritocratic ideals. A third is to identify resources within traditional views for advancement of women’s rights. For instance, the traditional association between pregnancy and gender could undermine the Supreme Court’s ruling (in Geduldig v. Aiello)5 5.417 U.S. 484, 494–97 (1974).Show More that sex-based discrimination does not necessarily encompass pregnancy discrimination. A fourth is to reason in a traditionalist fashion even while breaking with the past. For example, the Supreme Court’s Virginia Military Institute (“VMI”) decision, which held that VMI could not exclude women,6 6.United States v. Virginia, 518 U.S. 515, 558 (1996).Show More included approving descriptions of VMI’s traditional “adversative method.”7 7.Id. at 520.Show More Overall, dialectical traditionalism takes longstanding practices seriously while recognizing that their perpetuation in the current day requires reflection and sometimes critique.

The motivations for undertaking this project are twofold. One aim is to encourage the development of traditionalism in a direction conducive to claims involving women’s rights. Tradition is currently a salient form of argument in constitutional rights adjudication, employed by Justices with a range of jurisprudential and ideological views and increasingly discussed in legal scholarship.8 8.See, e.g., City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1475 (2022) (Sotomayor, J.) (placing weight on “unbroken tradition” of regulating “on-premises” signs differently from “off-premises” signs in a First Amendment case); Timbs v. Indiana, 586 U.S. 146, 149 (2019) (Ginsburg, J.) (explaining that Eighth Amendment protection against excessive fines has “deep roots in our history and tradition” (alterations omitted) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010))); Washington v. Glucksberg, 521 U.S. 702, 723 (1997) (Rehnquist, C.J.) (inquiring into whether the asserted right to physician-assisted suicide “has any place in our Nation’s traditions”); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring in the judgment) (explaining that the First Amendment right of access to trial proceedings “has special force when drawn from an enduring and vital tradition”); Fisher v. United States, 425 U.S. 391, 431 (1976) (Marshall, J., concurring in the judgment) (critiquing the Court for an approach “contrary to the history and traditions of the privilege against self-incrimination both in this country and in England”). For an overview of recent scholarship on tradition, see infra notes 12–14 and accompanying text.Show More From a feminist perspective, it is worth drawing attention to lines of traditionalist reasoning that can provide support for women’s rights. It may be argued that judicial or scholarly invocations of tradition are unlikely to change. One might, for instance, view current Justices’ references to tradition simply as vehicles for promoting certain ideologies. In that case, however, alternative traditionalist perspectives can serve as the basis for critique of existing applications of traditionalist methodology—demonstrating that those applications are not necessary positions for those concerned about tradition to take.

A second motivation emerges from the conviction that a concern for tradition in constitutional rights adjudication is independently valuable. Decision-makers in numerous social and political settings place weight on prior practice and custom. This is true of judicial decision-making as well, and for good reasons. Among these reasons: The values of reliance and settled expectations, familiar from defenses of stare decisis,9 9.See, e.g., Frederick Schauer, Precedent, 39 Stan. L. Rev. 571,597–98 (1987).Show More are both integral to traditionalism and significant to the judicial task. Traditionalism’s emphasis on concrete experience permits judges to learn from real-world applications of rights rather than opining in the abstract.10 10.SeeinfraSection III.A.Show More Adhering to tradition helps to constitute and maintain a national polity.11 11.Seeinfra Section III.D.Show More Accordingly, appeals to tradition are difficult to reject outright. But women’s rights are also significant, and analysis of tradition in constitutional rights adjudication ought to grapple with the challenge posed by sexist traditions.

This Article thus takes a deep dive into tradition and its interaction with feminism, highlighting several dimensions of this interaction: tradition’s value; the weighty difficulties with traditionalism posed by a concern with women’s rights; and the possibility of marshaling tradition’s resources in a feminist direction. In bringing together these inquiries—especially in light of very recent Supreme Court decisions—the Article breaks new ground. At the same time, it builds on three main strands of scholarship on tradition.

First, some scholars including Marc DeGirolami and Michael McConnell have advocated for traditionalism as a method of constitutional interpretation that, in DeGirolami’s words, “signals the presumptive influence of political and cultural practices of substantial duration for informing constitutional meaning.”12 12.DeGirolami, supra note 3, at 1125; McConnell, supra note 4, at 681. For other contributions favorable to tradition, see, e.g., Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029, 1047–55 (1990); Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619,697–715 (1994); see also id. at 703 (emphasizing resources for change from within tradition). Much of the literature on traditionalism in the past few years emanates from those concerned with the relationship between originalism and tradition. See, e.g.,Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023); Jud Campbell, Tradition, Originalism, and General Fundamental Law, 47 Harv. J.L. & Pub. Pol’y 635 (2024); Girgis, supra note 4, at 1487–96.Show More Second, some scholars such as Reva Siegel, Melissa Murray, and Cary Franklin have critiqued the current Supreme Court’s emphasis on tradition in constitutional rights adjudication from an equality perspective, contending that the Court is elevating traditions that disadvantage women (among others).13 13.See, e.g., Cary Franklin, History and Tradition’s Equality Problem, 133 Yale L.J.F. 946, 950–51 (2024);Serena Mayeri, The Critical Role of History after Dobbs, 2 J. Am. Const. Hist. 171, 190 (2024); Joy Milligan & Bertrall L. Ross II, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, 102 Tex. L. Rev. 305, 339–55 (2023);Melissa Murray, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 Hou. L. Rev. 799 (2023);Melissa Murray & Katherine Shaw, Dobbs andDemocracy,137 Harv. L. Rev. 728, 772–74 (2024); Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hou. L. Rev. 901, 932–33 (2023).Show More Third, some scholars—notably Jack Balkin, Katharine Bartlett, Felipe Jiménez, and Dov Fox and Mary Ziegler—have argued in favor of more flexible or “evolving” forms of traditionalism.14 14.Jiménez distinguishes between “conservative” and “flexible” traditionalism and draws attention to “legal traditions” that characterize the practice of judicial decision-making. Felipe Jiménez, Tradition in Constitutional Adjudication, 36 Yale J.L. & Humans. 1, 23–30, 44–45 (2025). Fox and Ziegler propose an “[e]volving traditionalism” that “anchors itself in the most recent among those lasting social practices that go back at least decades.” Dov Fox & Mary Ziegler, The Lost History of “History and Tradition,” 98 S. Cal. L. Rev. 1, 47 (2024). Although I share these authors’ interest in appeals to tradition that accommodate criticism of past practices, I do not adopt their particular versions of traditionalism, and I focus on the relationship between traditionalism and women’s rights jurisprudence. Jack Balkin has underscored the heterogeneity and complexity of traditions and has urged an “expansion of constitutional memory” to include those not involved in the formal process of constitutional ratification. Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 204, 219 (2024). While I draw on various aspects of Balkin’s work—and I share his use of the term “dialectical” to describe tradition, see infra note 135—I devote more specific attention to traditionalism as a method of constitutional interpretation. Further, unlike Balkin, I do not advocate on behalf of any kind of originalism, and I concentrate on feminist challenges to traditionalism. Bartlett, for her part, presents an “integrative view” of tradition that seeks an alternative to either relying wholly on the past or ignoring it. Katharine T. Bartlett, Tradition as Past and Present in Substantive Due Process Analysis, 62 Duke L.J. 535, 572 (2012) [hereinafter Bartlett, Tradition in Substantive Due Process]; see also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 Wis. L. Rev. 303, 304 [hereinafter Bartlett, Idea of Progress] (arguing that feminists should not adopt an “oppositional stance” toward tradition). Though I share much of Bartlett’s general orientation, my account focuses on the implications of traditionalism’s underlying rationales and analyzes tradition in light of the recent swell of jurisprudence on “history and tradition” in constitutional law.Show More This Article draws on insights from all of these scholars while carrying out its distinctive examination of tradition and its relationship to women’s rights claims.15 15.Although this Article focuses on constitutional rights rather than structure, tradition and related concepts have also been employed in separation-of-powers disputes, seeCurtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012), and in federal courts law, see Ernest A. Young, Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law, 58 Wm. & Mary L. Rev. 535 (2016). For discussion of the distinction between practice-based arguments in the structural and individual rights contexts, see Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407,1413–14 (2017).Show More

Part I lays the groundwork by examining the role played by tradition in case law on constitutional rights. This Part provides a sense of the possible legal functions that tradition could perform. It also clarifies the relationship between traditionalism and originalism, and it addresses the question whether the sources of tradition are legal or cultural.

Part II tackles the conundrums of defining “tradition” and “traditionalism.” I characterize traditions as networks of enduring practices and understandings. I conceptualize traditionalism as an approach to constitutional adjudication that values fidelity to the forms of social organization that traditions help to constitute. Part II emphasizes that traditionalists need not adopt an uncritical posture or one dedicated to copying the past; instead, vigorous traditions include elements of contestation and adaptability over time. Such an approach to tradition can be captured by the label “dialectical traditionalism.” I respond to the objection that my view is not real traditionalism, at least not in the way that defenders of traditionalism would ordinarily use that term.

Part III addresses the relationship between traditionalism and feminism from a theoretical perspective. It both highlights traditionalism’s vulnerability to feminist critique and identifies resources that traditionalism has to offer those concerned about women’s rights. In particular, Part III demonstrates that four leading justifications for traditionalism—rooted in concrete experience, reliance, democracy, and national identity—can support versions of traditionalism that favor women’s rights.

Part IV draws out implications of the proposed view of tradition for constitutional rights adjudication. It recommends, for example, drawing on a range of traditions, including traditions of women’s resistance to sexist legal arrangements and traditions reflecting women’s experiences more generally. I further advocate for openness to the possibility that traditions can change, as well as efforts to shape the contents of tradition by arguing that certain practices—including those embodying injustice toward women—are out of step with more enduring strands.16 16.Indeed, problematic strands of tradition can help to illuminate the nature of constitutional violations in the current day. For example, the Supreme Court in the 1973 case Frontiero v. Richardson held unconstitutional statutes requiring a servicewoman, but not a serviceman, to prove that her spouse was actually dependent on her income to claim him as a dependent for benefits purposes. 411 U.S. 677, 688 (1973) (plurality opinion). The plurality reviewed the history of sex discrimination in the United States and critiqued “gross, stereotyped distinctions between the sexes.” Id. at 685. Traditional understandings of women’s roles embraced in the past helped the Justices to identify a constitutional violation in the modern day. This method shares features in common with what other scholars have called “negative precedent”—using historical understandings to cast doubt on the legitimacy of current practices. See, e.g., Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 54 (2022) [hereinafter Siegel, Constitutional Memory]; Mayeri, supra note 13, at 189–90; infra Subsection IV.B.4.Show More Moreover, it can be beneficial for judges to reason in a traditionalist manner even when they are ruling in accordance with new social understandings.17 17.I argue for a presumption that judges should reason in a traditionalist manner even when breaking with tradition; this presumption could be overcome if the customary practices being rejected are sufficiently repugnant from a normative point of view. See infra Section IV.C.Show More The VMI case mentioned earlier provides an example, as does Griswold v. Connecticut, where the Court upheld a right that many would consider novel while stressing the lengthy pedigree of concern for marital privacy.18 18.381 U.S. 479, 485–86 (1965).Show More Expressing respect for tradition can be valuable normatively but also pragmatically; it may help to legitimate the ruling even to those skeptical of societal changes.

Part V addresses broader issues surrounding the role of tradition in constitutional jurisprudence. It tackles, for instance, the objection that dialectical traditionalism is indeterminate or merely a vehicle for judges’ moral predilections. This Article aims primarily to examine the relationship between tradition and feminism, rather than to offer a full-blown constitutional theory. Nevertheless, the observations in Part V pave the way for future consideration of the function that tradition can serve in constitutional rights jurisprudence as a whole.

A couple of clarifications regarding the scope and presuppositions of the Article are in order. The Article presupposes the moral correctness of feminism in the sense that women ought to have equal civil rights to men and an equal opportunity to participate in the political and economic life of the nation. This conception is meant to be relatively general and to leave room for varying social and moral views.19 19.Of course, there are numerous varieties of feminism. For an overview, see Nancy Levit & Robert R.M. Verchick, Feminist Legal Theory: A Primer 11–40 (2d ed. 2016). Although various strains of feminist theory may interact in complex ways with the ideas in this Article, the goal here is to pose the feminist challenge to traditionalism at a relatively high level of generality that can be endorsed by those with different views on the precise content of feminism.Show More

In addition, some of the arguments about tradition and women’s rights considered here would apply not only to cases involving women, but also to cases involving other forms of inequality, such as racial discrimination and discrimination against LGBT individuals.20 20.See, e.g., William N. Eskridge, Jr., Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation, 32 Harv. J.L. & Pub. Pol’y 193, 202 (2009) (arguing that tradition “on matters of sexuality as well as race has been evolutive and not static”); Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78 U. Chi. L. Rev. 281, 296–97, 330–33 (2011) (urging skepticism about tradition as a justification for restricting marriage to the opposite-sex setting, and discussing interracial marriage as well).Show More Moreover, adjudicators’ understandings of certain traditions and their deficiencies can benefit from considering more than one axis of critique at the same time.21 21.For critiques of the Supreme Court’s abortion jurisprudence along axes of both race and gender, for example, see Khiara M. Bridges, Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23, 42–53 (2022); Michele Goodwin, Involuntary Reproductive Servitude: Forced Pregnancy, Abortion, and the Thirteenth Amendment, 2022 U. Chi. Legal F. 191, 202–08.Show More Although I refer to other forms of discrimination at certain junctures,22 22.See infra, e.g., notes 221–23, 278, 285–87 and accompanying text.Show More the Article does not have space to develop application of its analysis to additional forms of inequality. It is to be hoped, however, that the Article’s analysis could be useful to future such projects.23 23.Another clarification: The Article concentrates on the role of tradition in constitutional “adjudication,” understood as the activity in which judges are engaged when deciding constitutional cases. That activity is meant to encompass “interpretation” in the sense of an effort to ascertain the contents of the law. For many observers, there is not much left for judges to do once they have engaged in interpretation; for such observers, “judges deciding constitutional cases must enforce the constitutional law.” Mitchell N. Berman & Kevin Toh, Pluralistic Nonoriginalism and the Combinability Problem, 91 Tex. L. Rev. 1739, 1740 (2013). As Berman and Toh point out, however, the “issue of what judges should do in constitutional disputes” is conceptually “distinct from the legal issue of what the constitutional law is or consists of.” Id. at 1745; see also Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1767 (1994) (distinguishing between the scholarly task of “constitutional interpretation” and “actual constitutional decisionmaking”). And one might adopt the opinion that judges have a different task in adjudication than they do in interpretation. For instance, if interpretation yields several viable candidates for the law’s contents, the judge qua adjudicator might have leeway “to resolve a dispute by determining, amid the clamour of rival claims, what is just.” Garrett Barden & Tim Murphy, Law and Justice in Community 132 (2010). I do not take a position on what (if anything) is involved in adjudication beyond determination of the contents of the law. Instead, I highlight rationales for drawing on tradition at any juncture in the constitutional decision-making process. I then argue that, to the extent one is persuaded by these justifications, one ought to take a more receptive approach toward women’s rights claims than is commonly presumed.Show More

The notion that feminism is anything but flatly contrary to traditionalism may seem counterintuitive. This Article identifies and explores the tensions. But it also seeks to uncover facets of tradition that are consonant with the advancement of women’s rights.

  1.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2253–54 (2022). ↑
  2.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). For other recent Supreme Court invocations of tradition, see, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2431 (2022) (Establishment Clause); Vidal v. Elster, 144 S. Ct. 1507, 1518–19 (2024) (speech). ↑
  3.  Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev. 1123, 1125 (2020). ↑
  4.  See, e.g., Marc O. DeGirolami, Traditionalism Rising, 24
    J.

    Contemp. Legal Issues 9, 54–56 (2023); Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 Utah L. Rev. 665, 681–90; see also Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. 1477, 1554–55 (2023) (referring to “living traditionalism” as “ineliminable, spreading, and increasingly deliberate,” though also voicing concerns with the methodology). ↑

  5.  417 U.S. 484, 494–97 (1974). ↑
  6.  United States v. Virginia, 518 U.S. 515, 558 (1996). ↑
  7.  Id. at 520. ↑
  8.  See, e.g., City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1475 (2022) (Sotomayor, J.) (placing weight on “unbroken tradition” of regulating “on-premises” signs differently from “off-premises” signs in a First Amendment case); Timbs v. Indiana, 586 U.S. 146, 149 (2019) (Ginsburg, J.) (explaining that Eighth Amendment protection against excessive fines has “deep roots in our history and tradition” (alterations omitted) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010))); Washington v. Glucksberg, 521 U.S. 702, 723 (1997) (Rehnquist, C.J.) (inquiring into whether the asserted right to physician-assisted suicide “has any place in our Nation’s traditions”); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring in the judgment) (explaining that the First Amendment right of access to trial proceedings “has special force when drawn from an enduring and vital tradition”); Fisher v. United States, 425 U.S. 391, 431 (1976) (Marshall, J., concurring in the judgment) (critiquing the Court for an approach “contrary to the history and traditions of the privilege against self-incrimination both in this country and in England”). For an overview of recent scholarship on tradition, see infra notes 12–14 and accompanying text. ↑
  9.  See, e.g., Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 597–98 (1987). ↑
  10.  See infra Section III.A. ↑
  11.  See infra Section III.D. ↑
  12.  DeGirolami, supra note 3, at 1125; McConnell, supra note 4, at 681. For other contributions favorable to tradition, see, e.g., Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029, 1047–55 (1990); Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation,
    72

    N.C. L. Rev. 619, 697–715 (1994); see also id. at 703 (emphasizing resources for change from within tradition). Much of the literature on traditionalism in the past few years emanates from those concerned with the relationship between originalism and tradition. See, e.g., Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev

    .

    433 (2023); Jud Campbell, Tradition, Originalism, and General Fundamental Law, 47 Harv. J.L. & Pub. Pol’y 635 (2024); Girgis, supra note 4, at 1487–96. ↑

  13.  See, e.g., Cary Franklin, History and Tradition’s Equality Problem, 133 Yale L.J.F
    .

    946, 950–51 (2024); Serena Mayeri, The Critical Role of History after Dobbs, 2 J. Am. Const. Hist. 171, 190 (2024); Joy Milligan & Bertrall L. Ross II, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, 102 Tex. L. Rev

    .

    305, 339–55 (2023); Melissa Murray, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 Hou. L. Rev

    .

    799 (2023); Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 728, 772–74 (2024); Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hou. L. Rev. 901, 932–33 (2023). ↑

  14.  Jiménez distinguishes between “conservative” and “flexible” traditionalism and draws attention to “legal traditions” that characterize the practice of judicial decision-making. Felipe Jiménez, Tradition in Constitutional Adjudication, 36 Yale J.L. & Humans. 1, 23–30, 44–45 (2025). Fox and Ziegler propose an “[e]volving traditionalism” that “anchors itself in the most recent among those lasting social practices that go back at least decades.” Dov Fox & Mary Ziegler, The Lost History of “History and Tradition,” 98 S. Cal. L. Rev. 1, 47 (2024). Although I share these authors’ interest in appeals to tradition that accommodate criticism of past practices, I do not adopt their particular versions of traditionalism, and I focus on the relationship between traditionalism and women’s rights jurisprudence. Jack Balkin has underscored the heterogeneity and complexity of traditions and has urged an “expansion of constitutional memory” to include those not involved in the formal process of constitutional ratification. Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 204, 219 (2024). While I draw on various aspects of Balkin’s work—and I share his use of the term “dialectical” to describe tradition, see infra note 135—I devote more specific attention to traditionalism as a method of constitutional interpretation. Further, unlike Balkin, I do not advocate on behalf of any kind of originalism, and I concentrate on feminist challenges to traditionalism. Bartlett, for her part, presents an “integrative view” of tradition that seeks an alternative to either relying wholly on the past or ignoring it. Katharine T. Bartlett, Tradition as Past and Present in Substantive Due Process Analysis, 62 Duke L.J. 535, 572 (2012) [hereinafter Bartlett, Tradition in Substantive Due Process]; see also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 Wis. L. Rev. 303, 304 [hereinafter Bartlett, Idea of Progress] (arguing that feminists should not adopt an “oppositional stance” toward tradition). Though I share much of Bartlett’s general orientation, my account focuses on the implications of traditionalism’s underlying rationales and analyzes tradition in light of the recent swell of jurisprudence on “history and tradition” in constitutional law. ↑
  15.  Although this Article focuses on constitutional rights rather than structure, tradition and related concepts have also been employed in separation-of-powers disputes, see Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev
    .

    411 (2012), and in federal courts law, see Ernest A. Young, Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law, 58 Wm. & Mary L. Rev. 535 (2016). For discussion of the distinction between practice-based arguments in the structural and individual rights contexts, see Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407, 1413–14 (2017). ↑

  16.  Indeed, problematic strands of tradition can help to illuminate the nature of constitutional violations in the current day. For example, the Supreme Court in the 1973 case Frontiero v. Richardson held unconstitutional statutes requiring a servicewoman, but not a serviceman, to prove that her spouse was actually dependent on her income to claim him as a dependent for benefits purposes. 411 U.S. 677, 688 (1973) (plurality opinion). The plurality reviewed the history of sex discrimination in the United States and critiqued “gross, stereotyped distinctions between the sexes.” Id. at 685. Traditional understandings of women’s roles embraced in the past helped the Justices to identify a constitutional violation in the modern day. This method shares features in common with what other scholars have called “negative precedent”—using historical understandings to cast doubt on the legitimacy of current practices. See, e.g., Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 54 (2022) [hereinafter Siegel, Constitutional Memory]; Mayeri, supra note 13, at 189–90; infra Subsection IV.B.4. ↑
  17.  I argue for a presumption that judges should reason in a traditionalist manner even when breaking with tradition; this presumption could be overcome if the customary practices being rejected are sufficiently repugnant from a normative point of view. See infra Section IV.C. ↑
  18.  381 U.S. 479, 485–86 (1965). ↑
  19.  Of course, there are numerous varieties of feminism. For an overview, see Nancy Levit & Robert R.M. Verchick, Feminist Legal Theory: A Primer 11–40 (2d ed. 2016). Although various strains of feminist theory may interact in complex ways with the ideas in this Article, the goal here is to pose the feminist challenge to traditionalism at a relatively high level of generality that can be endorsed by those with different views on the precise content of feminism. ↑
  20.  See, e.g., William N. Eskridge, Jr., Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation, 32 Harv. J.L. & Pub. Pol’y 193, 202 (2009) (arguing that tradition “on matters of sexuality as well as race has been evolutive and not static”); Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78 U. Chi. L. Rev. 281, 296–97, 330–33 (2011) (urging skepticism about tradition as a justification for restricting marriage to the opposite-sex setting, and discussing interracial marriage as well). ↑
  21.  For critiques of the Supreme Court’s abortion jurisprudence along axes of both race and gender, for example, see Khiara M. Bridges, Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23, 42–53 (2022); Michele Goodwin, Involuntary Reproductive Servitude: Forced Pregnancy, Abortion, and the Thirteenth Amendment, 2022 U. Chi. Legal F. 191, 202–08. ↑
  22.  See infra, e.g., notes 221–23, 278, 285–87 and accompanying text. ↑
  23.  Another clarification: The Article concentrates on the role of tradition in constitutional “adjudication,” understood as the activity in which judges are engaged when deciding constitutional cases. That activity is meant to encompass “interpretation” in the sense of an effort to ascertain the contents of the law. For many observers, there is not much left for judges to do once they have engaged in interpretation; for such observers, “judges deciding constitutional cases must enforce the constitutional law.” Mitchell N. Berman & Kevin Toh, Pluralistic Nonoriginalism and the Combinability Problem, 91 Tex. L. Rev. 1739, 1740 (2013). As Berman and Toh point out, however, the “issue of what judges should do in constitutional disputes” is conceptually “distinct from the legal issue of what the constitutional law is or consists of.” Id. at 1745; see also Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1767 (1994) (distinguishing between the scholarly task of “constitutional interpretation” and “actual constitutional decisionmaking”). And one might adopt the opinion that judges have a different task in adjudication than they do in interpretation. For instance, if interpretation yields several viable candidates for the law’s contents, the judge qua adjudicator might have leeway “to resolve a dispute by determining, amid the clamour of rival claims, what is just.” Garrett Barden & Tim Murphy, Law and Justice in Community 132 (2010). I do not take a position on what (if anything) is involved in adjudication beyond determination of the contents of the law. Instead, I highlight rationales for drawing on tradition at any juncture in the constitutional decision-making process. I then argue that, to the extent one is persuaded by these justifications, one ought to take a more receptive approach toward women’s rights claims than is commonly presumed. ↑

Read But Not Understood? An Empirical Analysis of Consumer Comprehension in Homeowners Insurance

Modern contract law assumes that consumers meaningfully assent to the standard forms that govern their daily lives. However, this assumption is widely regarded as a legal fiction for two key reasons: first, most consumers do not read standard forms, and second, even those who do often struggle to fully comprehend their terms and implications. Although the lack of consumer reading has been well documented through empirical research, consumers’ ability to comprehend standard-form contracts has received surprisingly little attention.

This Article addresses the latter issue by empirically examining whether providing excerpts from the dominant standard-form homeowners insurance policy improves consumer understanding of coverage. Through a series of survey-based experiments, we compare consumers’ general beliefs about homeowners insurance with their beliefs after reading key policy excerpts. Our main finding is that providing policy language only moderately improved consumer understanding in some scenarios, while affirmatively decreasing accuracy in others. We interpret these results as suggesting that respondents often struggle with partial reading or misinterpreting policy provisions, especially when policy language grants broad coverage that is later restricted by specific exclusions in the same section—a common structural feature of insurance policies.

These findings carry significant legal and regulatory implications. Even if most consumers do not read standard-form contracts, improving the readability and comprehensibility of standard-form terms can limit firms’ discretion in disputes, enhance regulatory oversight of unfair provisions, and empower markets to penalize firms relying on excessively one-sided terms. This Article argues that addressing these challenges is essential to fostering fairer and more effective consumer protections.

Introduction

A foundational premise of modern contract law is that consumers meaningfully assent to the boilerplate agreements that shape their daily lives.1 1.See Restatement of Consumer Conts. § 2 (A.L.I. 2024); Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law 12–13 (2013).Show More Yet this premise is widely rejected by academic commentators, who routinely assail it as nothing more than a legal fiction.2 2.See, e.g., Radin, supra note 1, at 14; Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America’s Top Companies, 52 U.C. Davis L. Rev. Online 233, 236 (2019).Show More These academic critiques typically rely on two key empirical observations. The first, which is often called the no-reading problem, is that most consumers accept the contracts they ostensibly agree to without attempting to read or understand them.3 3.See, e.g., Oren Bar-Gill, Seduction by Plastic, 98 Nw. U. L. Rev. 1373, 1376–77 (2004); Omri Ben-Shahar & Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure 77 (2014); Melvin Aron Eisenberg, The Limits of Cognition and the Limits of Contract, 47 Stan. L. Rev. 211, 240–41 (1995).Show More The second key observation is that even diligent consumers who attempt to parse standard-form contracts often struggle to grasp their full implications.4 4.See, e.g., Tess Wilkinson-Ryan, A Psychological Account of Consent to Fine Print, 99 Iowa L. Rev. 1745, 1749 (2014); Melvin Aron Eisenberg, Comment, Text Anxiety, 59 S. Cal. L. Rev. 305, 309 (1986); Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. Rev. 429, 436 (2002).Show More We label this second critique the no-understanding problem.

Although the no-reading and no-understanding problems are closely related, they can lead to different conclusions about what legal and regulatory rules should apply to consumer contracts. For instance, consumers who do not even attempt to read their contracts can plausibly be deemed to be making a personal, entirely rational, choice.5 5.See, e.g., Avery Katz, Your Terms or Mine? The Duty to Read the Fine Print in Contracts, 21 RAND J. Econ. 518, 519–20 (1990); Omri Ben-Shahar, The Myth of the ‘Opportunity to Read’ in Contract Law, 5 Eur. Rev. Cont. L. 1, 2 (2009).Show More So framed, the judicial doctrine imposing a “duty to read” on consumers is coherent, albeit contestable.6 6.Charles L. Knapp, Is There a “Duty to Read”?, 66 Hastings L.J. 1083, 1085 (2015).Show More However, deeming consumers to have assented to contracts that they are predominantly unable to comprehend is not just unreasonable, but arguably illogical.7 7.See Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. 2255, 2277, 2282–83 (2019).Show More If even diligent consumers cannot understand the standard forms to which they supposedly assent, then the contract law foundations of modern consumer law become easier to supplement, or perhaps even replace, with more proactive legal and regulatory interventions.8 8.See Daniel Schwarcz, A Products Liability Theory for the Judicial Regulation of Insurance Policies, 48 Wm. & Mary L. Rev. 1389, 1435–36 (2007); Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. Pa. L. Rev. 1, 98 (2008); CFPB Warns Against Deception in Contract Fine Print, Consumer Fin. Prot. Bureau (June 4, 2024, at 10:01 ET), https://www.consumerfinance.gov/about-us/newsroom/cfpb-warns-against-decep‌tion-in-contract-fine-print/ [https://perma.cc/24BT-BPAC]; Susan Block-Lieb & Edward J. Janger, Fit for Its Ordinary Purpose: Implied Warranties and Common Law Duties for Consumer Finance Contracts, 59 Hou. L. Rev. 551, 599 (2022).Show More

More prosaically, the legal and regulatory measures available to counteract the no-reading and no-understanding problems in consumer contract law are often quite distinct. To encourage reading, regulations and judicial doctrines can push firms to draft shorter contracts,9 9.See Cynthia Adams, The Move Toward Using Plain Legal Language, 20 TYL, no. 4, Summer 2016, at 6, 6.Show More highlight or capitalize key terms,10 10.See, e.g., Yonathan A. Arbel & Andrew Toler, ALL-CAPS, 17 J. Empirical Legal Stud. 862, 863 (2020); David A. Hoffman, Relational Contracts of Adhesion, 85 U. Chi. L. Rev. 1395, 1428–31 (2018) (detailing examples of Kickstarter’s use of highlighting to improve comprehension).Show More make contracts more accessible,11 11.See Benedikt Schmitz & Charlotte Pavillon, Measuring Transparency in Consumer Contracts: The Usefulness of Readability Formulas Empirically Assessed, 9 J. Eur. Consumer & Mkt. L. 191, 191 (2020); George R. Milne & Mary J. Culnan, Strategies for Reducing Online Privacy Risks: Why Consumers Read (or Don’t Read) Online Privacy Notices, 18 J. Interactive Mktg., no. 3, Summer 2004, at 15, 25.Show More or require consumers to scroll through all terms or individually assent to specific terms before completing a transaction.12 12.Cf. Jonathan A. Obar & Anne Oeldorf-Hirsch, The Biggest Lie on the Internet: Ignoring the Privacy Policies and Terms of Service Policies of Social Networking Services, 23 Info. Commc’n & Soc’y 128, 140 (2020) (finding that research participants merely scrolled to accept the terms and conditions).Show More Conversely, improving consumer understanding of contracts requires a distinct set of potential legal and regulatory tools, including expanding and better enforcing quantitative and qualitative readability standards,13 13.See John Aloysius Cogan Jr., Readability, Contracts of Recurring Use, and the Problem of Ex Post Judicial Governance of Health Insurance Policies, 15 Roger Williams U. L. Rev. 93, 100 (2010); Michael A. Blasie, The Rise of Plain Language Laws, 76 U. Mia. L. Rev. 447, 481–84 (2022) [hereinafter Blasie, Rise of Plain Language Laws]; Michael A. Blasie, Regulating Plain Language, 2023 Wis. L. Rev. 687, 708–11 [hereinafter Blasie, Regulating Plain Language]; see also Michelle Boardman, Insuring Understanding: The Tested Language Defense, 95 Iowa L. Rev. 1075, 1077 (2010) (proposing a “tested language defense” that would allow insurers to defend against ambiguity claims by demonstrating that their policy language was empirically tested for consumer comprehension).Show More promoting technologies like “smart readers,”14 14.See Yonathan A. Arbel & Shmuel I. Becher, Contracts in the Age of Smart Readers, 90 Geo. Wash. L. Rev. 83, 115 (2022).Show More requiring effective disclosures,15 15.Cf. Omri Ben-Shahar & Adam Chilton, Simplification of Privacy Disclosures: An Experimental Test, 45 J. Legal Stud. S41, S61 (2016) (employing a survey-based methodology and finding that simplifying disclosures according to “best practices” had no significant effect on consumer comprehension of contract terms).Show More or using interpretive principles to incentivize firms to craft less ambiguous or technical terms.16 16.See Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 120–21 n.147 (1989).Show More

Despite the differing theoretical and practical implications of the no-reading and no-understanding critiques of modern consumer contract law, there exists surprisingly limited empirical evidence focused exclusively on the latter question of how well consumers can understand typical consumer contracts when they affirmatively attempt to do so.17 17.See infra Part I; Lior Jacob Strahilevitz & Matthew B. Kugler, Is Privacy Policy Language Irrelevant to Consumers?, 45 J. Legal Stud. S69, S72–73 (2016); Uri Y. Hacohen, Amit Elazari & Talia Schwartz-Maor, A Penny for Their Creations—Apprising Users’ Value of Copyrights in Their Social Media Content, 36 Berkeley Tech. L.J. 511, 531 (2021); Tess Wilkinson-Ryan, The Perverse Consequences of Disclosing Standard Terms, 103 Corn. L. Rev. 117, 120 (2017).Show More What is more, the limited evidence that does exist suggests that the no-understanding critique may be overblown, at least when one focuses on the majority of consumers.18 18.See Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753, 1787–88, 1791, 1794 (2017) (reporting the results of three surveys suggesting that, in the aggregate, surveyed consumers correctly alter their interpretation of contract terms that are redrafted to clarify the intended meaning).Show More By contrast, an increasingly sizable literature confirms the widespread intuition that the no-reading problem is indeed real and pervasive.19 19.See Yannis Bakos, Florencia Marotta-Wurgler & David R. Trossen, Does Anyone Read the Fine Print? Consumer Attention to Standard-Form Contracts, 43 J. Legal Stud. 1, 3–4, 32 (2014); Jean R. Sternlight, Creeping Mandatory Arbitration: Is It Just?,57 Stan. L. Rev. 1631, 1648 (2005); Ian Ayres & Alan Schwartz, The No-Reading Problem in Consumer Contract Law, 66 Stan. L. Rev. 545, 546 (2014); Florencia Marotta-Wurgler, Does Contract Disclosure Matter?, 168 J. Inst’l & Theoretical Econ. 94, 95–96 (2012).Show More Other important entries in the empirical literature document the combined effect of the no-reading and no-understanding problems, demonstrating that consumers often fail to appreciate the meaning of key terms like arbitration agreements and class action waivers contained within the broader contracts they receive.20 20.See Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis & Yuxiang Liu, “Whimsy Little Contracts” with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements, 75 Md. L. Rev. 1, 45–47 (2015) (reporting that a minority of respondents understood that mandatory arbitration provisions contained within broader contracts precluded them from litigating large disputes and that class action waivers prevented them from participating in a class action); Roseanna Sommers, What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, PLOS ONE, Feb. 23, 2024, at 1, 9–12, https://doi.org/10.1371/journal.pone.02‌96179 [https://perma.cc/986Y-ACWZ]; Arbel & Toler, supra note 10, at 866–67.Show More But because these studies focus on consumer comprehension of entire contracts, they cannot clearly differentiate between the no-reading and no-understanding critiques of modern consumer contract law.

For these reasons, this Article empirically assesses how well typical consumers can understand key terms in one particularly important and pervasive type of standard-form consumer contract: homeowners insurance policies. Homeowners insurance provides a good setting to test consumer comprehension of contract language for several reasons.21 21.Because the terms of insurance policies, including homeowners insurance policies, are sometimes structured in ways that are unusual though perhaps not unique to the insurance context, our results may not be fully generalizable to all consumer contract settings.Show More First, a central goal of insurance law and regulation is to promote clear and comprehensible insurance policy language.22 22.Kyle Logue, Daniel Schwarcz & Brenda J. Cude, The Value of Understandable Consumer Insurance Contracts, 8 Int’l Rev. Fin. Consumers, no. 1, June 2023, at 1, 2; Boardman, supra note 13, at 1077; Christopher C. French, Understanding Insurance Policies as Noncontracts: An Alternative Approach to Drafting and Construing These Unique Financial Instruments, 89 Temp. L. Rev. 535, 553 (2017); Kenneth S. Abraham & Daniel Schwarcz, Insurance Law and Regulation: Cases and Materials 151 (7th ed. 2020).Show More Toward this end, the primary rule of insurance law is that ambiguities are interpreted against the drafter,23 23.See Kenneth S. Abraham, A Theory of Insurance Policy Interpretation, 95 Mich. L. Rev. 531, 531, 537–38 (1996); Michelle Boardman, Penalty Default Rules in Insurance Law, 40 Fla. St. U. L. Rev. 305, 327–28 (2013).Show More and a substantial majority of states impose readability requirements on insurance policies.24 24.See Cogan, supra note 13, at 120. To be sure, readability requirements often apply to consumer contracts other than insurance policies. See Blasie, Rise of Plain Language Laws, supra note 13, at 495; Blasie, Regulating Plain Language, supra note 13, at 703.Show More Second, comprehensible policy language can play a potentially vital role in promoting fair insurance markets even if consumers do not read their policies at the time of purchase.25 25.See Daniel Schwarcz, Coverage Information in Insurance Law, 101Minn. L. Rev. 1457, 1491 (2017).Show More For instance, comprehensible insurance policy language can discourage insurers from unreasonably denying claims by empowering consumers, insurance agents, and lawyers to detect and challenge such coverage denials.26 26.See Willem H. Van Boom, Pieter Desmet & Mark Van Dam, “If It’s Easy to Read, It’s Easy to Claim”—The Effect of the Readability of Insurance Contracts on Consumer Expectations and Conflict Behaviour, 39 J. Consumer Pol’y 187, 195 (2016); cf. Daniel Schwarcz, Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection, 61 UCLA L. Rev. 394, 414 (2014) (explaining that opportunistic insurers may leverage complex coverage policies to delay payments or deny coverage).Show More Finally, the terms and structure of homeowners insurance policies are somewhat standardized across the country, allowing us to test widely used policy language, as well as less common variants.27 27.See Daniel Schwarcz, Reevaluating Standardized Insurance Policies, 78 U. Chi. L. Rev. 1263, 1272–73 (2011).Show More

To better understand how well consumers can comprehend specific insurance policy terms, we designed and deployed a series of survey-based experiments, which we administered to approximately 2,500 current U.S. homeowners who were previously involved in the decision to purchase or renew a homeowners insurance policy. In these experiments, we asked a control group of respondents to evaluate the likelihood that a typical homeowners insurance policy would cover a variety of losses, described in vignettes we crafted for this research, without providing these respondents with relevant insurance policy language. We presented the same coverage vignettes to a treatment group of respondents whom we provided with relevant excerpts from the most common template for homeowners insurance policies in the United States: the 2010 ISO HO3 policy.28 28.See generally Daniel Schwarcz, The Role of Courts in the Evolution of Standard Form Contracts: An Insurance Case Study, 46 BYU L. Rev. 471 (2021) (discussing the evolution of the ISO HO3 policy leading up to its 2010 revision).Show More To determine whether the vignettes resulted in clear coverage or non-coverage, we relied on the combined expertise of the co-authors, which we confirmed by querying several advanced AI systems.29 29.Notably, in one coverage scenario, an AI analysis produced by OpenAI o3 uncovered coverage issues that the human co-authors did not initially observe.Show More By comparing responses from participants who saw the operative policy language with those from participants who did not, we assessed how effectively that language fulfills its core function of giving policyholders meaningful notice of their coverage.30 30.In this Article, we focused our analysis on vignettes that resulted in unambiguous coverage determinations under the ISO HO3 policy. But we also tested consumers’ responses to ambiguous, atypical, and potentially unenforceable policy language. Cf. Ben-Shahar & Strahilevitz, supra note 18, at 1783–87 (using a similar vignette-based survey methodology to test consumer interpretation of both ambiguous and unambiguous contract provisions). Here, too, our initial hypothesis—that providing ambiguous policy language would increase the likelihood that respondents would recognize that there was no clear answer to the coverage question—proved incorrect in at least some of the coverage vignettes we tested. We report and discuss these results in Appendix C.Show More

We initially hypothesized that respondents provided with the relevant policy language would consistently offer more accurate answers about coverage than those without it. However, our results contradicted this hypothesis and diverged from prior literature, which suggested that consumers, on average, correctly interpret unambiguous contract language.31 31.Cf. Ben-Shahar & Strahilevitz, supra note 18, at 1801 (finding that survey respondents reliably shifted toward the intended interpretation when ambiguous contract language was revised for clarity).Show More Across the seven coverage vignettes we tested, respondents in three vignettes were less accurate when provided with the policy language than those who were not. The reduction in accuracy was substantial—ranging from approximately 18 to 33 percentage points—and statistically significant at the 1% level. In a fourth vignette, there was no significant difference in accuracy between those who received the policy language and those who did not. Even in the remaining three vignettes, where respondents with access to the policy language performed better, the accuracy improvements were inconsistent across the vignettes and smaller than might be expected.32 32.In particular, the percentage of respondents who provided accurate answers was higher by between roughly 13 percentage points on the low end and 34 percentage points on the high end across these four vignettes. In absolute terms, the percentage of respondents who received policy language and provided accurate answers to coverage questions ranged from roughly 20% to 72%. See infra Section IV.A, Figure 5.Show More

The variation in our results appears to be best explained by the structure of the policy language provided to respondents, though this conclusion is speculative. Specifically, in cases where the policy language was associated with less accuracy in respondents’ coverage assessments, the provisions were written in a way that could mislead readers who focused on only the first part of the excerpt. A careful reading of the initial portion often suggests one answer to the coverage question, whereas a thorough reading of the entire provision reveals the opposite answer to be correct.33 33.That is, for several of the coverage vignettes, it appears that the respondents may have read until they thought they understood the terms of the policy and then either stopped reading or stopped reading carefully. Determining which of those it was—partial reading or partial understanding—is not possible from our data, and further examination of that question would likely require qualitative research with consumers. One technique to further investigate the partial-reading or partial-understanding question is one-on-one cognitive interviews with consumers. In a cognitive interview, the interviewer gives the consumer the relevant document and asks the consumer to verbalize what they see and think as they interact with the document. See Gordon B. Willis & Anthony R. Artino Jr., What Do Our Respondents Think We’re Asking? Using Cognitive Interviewing to Improve Medical Education Surveys, 5 J. Graduate Med. Educ. 353, 353 (2013). Another technique is eye tracking, in which technology allows the researcher to see the portions of a document that a consumer views online. Benjamin T. Carter & Steven G. Luke, Best Practices in Eye Tracking Research, 155 Int’l J. Psychophysiology 49, 50 (2020).Show More This pattern suggests the existence of a type of problem not previously identified in the literature—a partial-reading or partial-understanding problem. Even more importantly, it creates significant consumer protection concerns, as this contractual structure—in which broad coverage grants are later restricted by specific exclusions—is a pervasive structural feature of insurance policies.34 34.See Abraham & Schwarcz, supra note 22, at 248, 529.Show More Notably, we also found limited evidence that respondents’ demographics or sophistication influenced the extent to which providing relevant policy language enhanced the accuracy of their coverage assessments.

Respondents who reviewed policy language reported greater confidence in their coverage assessments than those who did not. We found some evidence suggesting that highly confident respondents are more likely to provide accurate coverage assessments than their less confident peers.35 35.But seeLawrence Solan, Terri Rosenblatt & Daniel Osherson, False Consensus Bias in Contract Interpretation, 108 Colum. L. Rev. 1268, 1285, 1290, 1292–93 (2008).Show More But we found no statistically significant support to conclude that sophisticated consumers, higher-income consumers, or white consumers were more likely than their counterparts to provide accurate coverage assessments.36 36.See Yonathan A. Arbel, The Readability of Contracts: Big Data Analysis,21 J. Empirical Legal Stud. 927, 964 (2024) (positing that studies of contract readability must account for “diverse cultural, cognitive, and educational backgrounds”).Show More Nor did our results support a conclusion that seeing relevant policy language improved accuracy more for those in the selected subgroups than for their counterparts.37 37.Id.Show More These results suggest that, contrary to the conventional wisdom, a broad swath of the population (and not just a “vulnerable” subgroup) has difficulty decoding the “plain meaning” of insurance policy language.38 38.See, e.g., Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contract Terms: The Examples of Warranties and Security Interests, 69 Va. L. Rev. 1387, 1389 (1983).Show More

We interpret our results, viewed as a whole, to have important theoretical and practical implications. On the theory side, they provide a novel reason to question the cornerstone of modern consumer law, that consumers have a “duty to read.” Although it has long been evident that most consumers do not attempt to read standard consumer forms, our research further indicates that even when they do, they often fail to fully grasp the terms. More concretely, our findings cast doubt on techniques aimed at increasing contract readability—such as highlighting key terms—when these measures are not accompanied by efforts to improve consumer comprehension and engagement with all terms. Finally, because our results reveal that even consumers with higher levels of sophistication often struggle to understand complex commercial contract language, they challenge efforts to tailor legal or regulatory interventions based on perceived consumer sophistication.

Our analysis is organized into five parts. Part I reviews the existing literature, highlighting the surprising lack of empirical evidence on consumers’ ability to understand the terms of standard-form contracts. In Part II, we outline our methodology testing this issue, and in Part III, we describe the data employed in our study. Part IV presents our results, and Part V explores their broader normative and practical implications.

  1.  See Restatement of Consumer Conts. § 2 (A.L.I. 2024); Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law
    12–13
    (2013).

    ↑

  2.  See, e.g., Radin, supra note 1, at 14; Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America’s Top Companies, 52 U.C. Davis L. Rev. Online 233, 236 (2019). ↑
  3.  See, e.g., Oren Bar-Gill, Seduction by Plastic, 98 Nw. U. L. Rev. 1373, 1376–77 (2004); Omri Ben-Shahar & Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure 77 (2014); Melvin Aron Eisenberg, The Limits of Cognition and the Limits of Contract, 47 Stan. L. Rev. 211, 240–41 (1995). ↑
  4.  See, e.g., Tess Wilkinson-Ryan, A Psychological Account of Consent to Fine Print, 99 Iowa L. Rev. 1745, 1749 (2014); Melvin Aron Eisenberg, Comment, Text Anxiety, 59 S. Cal. L. Rev. 305, 309 (1986); Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. Rev. 429, 436 (2002). ↑
  5.  See, e.g., Avery Katz, Your Terms or Mine? The Duty to Read the Fine Print in Contracts, 21 RAND J. Econ. 518, 519–20 (1990); Omri Ben-Shahar, The Myth of the ‘Opportunity to Read’ in Contract Law, 5 Eur. Rev. Cont. L. 1, 2 (2009). ↑
  6.  Charles L. Knapp, Is There a “Duty to Read”?, 66 Hastings L.J. 1083, 1085 (2015). ↑
  7.  See Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. 2255, 2277, 2282–83 (2019). ↑
  8.  See Daniel Schwarcz, A Products Liability Theory for the Judicial Regulation of Insurance Policies, 48 Wm. & Mary L. Rev. 1389, 1435–36 (2007); Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. Pa. L. Rev. 1, 98 (2008); CFPB Warns Against Deception in Contract Fine Print, Consumer Fin. Prot. Bureau (June 4, 2024, at 10:01 ET), https://www.consumerfinance.gov/about-us/newsroom/cfpb-warns-against-decep‌tion-in-contract-fine-print/ [https://perma.cc/24BT-BPAC]; Susan Block-Lieb & Edward J. Janger, Fit for Its Ordinary Purpose: Implied Warranties and Common Law Duties for Consumer Finance Contracts, 59 Hou. L. Rev. 551, 599 (2022). ↑
  9.  See Cynthia Adams, The Move Toward Using Plain Legal Language, 20
    TYL,

    no. 4, Summer 2016, at 6, 6. ↑

  10.  See, e.g., Yonathan A. Arbel & Andrew Toler, ALL-CAPS, 17 J. Empirical Legal Stud. 862, 863 (2020); David A. Hoffman, Relational Contracts of Adhesion, 85 U. Chi. L. Rev. 1395, 1428–31 (2018) (detailing examples of Kickstarter’s use of highlighting to improve comprehension). ↑
  11.  See Benedikt Schmitz & Charlotte Pavillon, Measuring Transparency in Consumer Contracts: The Usefulness of Readability Formulas Empirically Assessed, 9 J. Eur. Consumer & Mkt. L. 191, 191 (2020); George R. Milne & Mary J. Culnan, Strategies for Reducing Online Privacy Risks: Why Consumers Read (or Don’t Read) Online Privacy Notices, 18 J. Interactive Mktg., no. 3, Summer 2004, at 15, 25. ↑
  12.  Cf. Jonathan A. Obar & Anne Oeldorf-Hirsch, The Biggest Lie on the Internet: Ignoring the Privacy Policies and Terms of Service Policies of Social Networking Services, 23 Info. Commc’n & Soc’y 128, 140 (2020) (finding that research participants merely scrolled to accept the terms and conditions). ↑
  13.  See John Aloysius Cogan Jr., Readability, Contracts of Recurring Use, and the Problem of Ex Post Judicial Governance of Health Insurance Policies, 15 Roger Williams U. L. Rev. 93, 100 (2010); Michael A. Blasie, The Rise of Plain Language Laws, 76 U. Mia. L. Rev. 447, 481–84 (2022) [hereinafter Blasie, Rise of Plain Language Laws]; Michael A. Blasie, Regulating Plain Language, 2023 Wis. L. Rev. 687, 708–11 [hereinafter Blasie, Regulating Plain Language]; see also Michelle Boardman, Insuring Understanding: The Tested Language Defense, 95 Iowa L. Rev. 1075, 1077 (2010) (proposing a “tested language defense” that would allow insurers to defend against ambiguity claims by demonstrating that their policy language was empirically tested for consumer comprehension). ↑
  14.  See Yonathan A. Arbel & Shmuel I. Becher, Contracts in the Age of Smart Readers, 90 Geo. Wash. L. Rev. 83, 115 (2022). ↑
  15.  Cf. Omri Ben-Shahar & Adam Chilton, Simplification of Privacy Disclosures: An Experimental Test, 45 J. Legal Stud. S41, S61 (2016) (employing a survey-based methodology and finding that simplifying disclosures according to “best practices” had no significant effect on consumer comprehension of contract terms). ↑
  16.  See Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 120–21 n.147 (1989). ↑
  17.  See infra Part I; Lior Jacob Strahilevitz & Matthew B. Kugler, Is Privacy Policy Language Irrelevant to Consumers?, 45 J. Legal Stud. S69, S72–73 (2016); Uri Y. Hacohen, Amit Elazari & Talia Schwartz-Maor, A Penny for Their Creations—Apprising Users’ Value of Copyrights in Their Social Media Content, 36 Berkeley Tech. L.J. 511, 531 (2021); Tess Wilkinson-Ryan, The Perverse Consequences of Disclosing Standard Terms, 103 Corn. L. Rev. 117, 120 (2017). ↑
  18.  See Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753, 1787–88, 1791, 1794 (2017) (reporting the results of three surveys suggesting that, in the aggregate, surveyed consumers correctly alter their interpretation of contract terms that are redrafted to clarify the intended meaning). ↑
  19.  See Yannis Bakos, Florencia Marotta-Wurgler & David R. Trossen, Does Anyone Read the Fine Print? Consumer Attention to Standard-Form Contracts, 43 J. Legal Stud. 1, 3–4, 32 (2014); Jean R. Sternlight, Creeping Mandatory Arbitration: Is It Just?, 57 Stan. L. Rev. 1631, 1648 (2005); Ian Ayres & Alan Schwartz, The No-Reading Problem in Consumer Contract Law, 66 Stan. L. Rev. 545, 546 (2014); Florencia Marotta-Wurgler, Does Contract Disclosure Matter?, 168 J. Inst’l & Theoretical Econ. 94, 95–96 (2012). ↑
  20.  See Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis & Yuxiang Liu, “Whimsy Little Contracts” with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements, 75 Md. L. Rev. 1, 45–47 (2015) (reporting that a minority of respondents understood that mandatory arbitration provisions contained within broader contracts precluded them from litigating large disputes and that class action waivers prevented them from participating in a class action); Roseanna Sommers, What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, PLOS
    ONE,

    Feb. 23, 2024, at 1, 9–12, https://doi.org/10.1371/journal.pone.02‌96179 [https://perma.cc/986Y-ACWZ]; Arbel & Toler, supra note 10, at 866–67. ↑

  21.  Because the terms of insurance policies, including homeowners insurance policies, are sometimes structured in ways that are unusual though perhaps not unique to the insurance context, our results may not be fully generalizable to all consumer contract settings. ↑
  22.  Kyle Logue, Daniel Schwarcz & Brenda J. Cude, The Value of Understandable Consumer Insurance Contracts, 8 Int’l Rev. Fin. Consumers, no. 1, June 2023, at 1, 2; Boardman, supra note 13, at 1077; Christopher C. French, Understanding Insurance Policies as Noncontracts: An Alternative Approach to Drafting and Construing These Unique Financial Instruments, 89 Temp. L. Rev. 535, 553 (2017); Kenneth S. Abraham & Daniel Schwarcz, Insurance Law and Regulation: Cases and Materials 151 (7th ed. 2020). ↑
  23.  See Kenneth S. Abraham, A Theory of Insurance Policy Interpretation, 95 Mich. L. Rev. 531, 531, 537–38 (1996); Michelle Boardman, Penalty Default Rules in Insurance Law, 40 Fla. St. U. L. Rev. 305, 327–28 (2013). ↑
  24.  See Cogan, supra note 13, at 120. To be sure, readability requirements often apply to consumer contracts other than insurance policies. See Blasie, Rise of Plain Language Laws, supra note 13, at 495; Blasie, Regulating Plain Language, supra note 13, at 703. ↑
  25.  See Daniel Schwarcz, Coverage Information in Insurance Law, 101 Minn. L. Rev. 1457, 1491 (2017). ↑
  26.  See Willem H. Van Boom, Pieter Desmet & Mark Van Dam, “If It’s Easy to Read, It’s Easy to Claim”—The Effect of the Readability of Insurance Contracts on Consumer Expectations and Conflict Behaviour, 39 J. Consumer Pol’y 187, 195 (2016); cf. Daniel Schwarcz, Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection, 61 UCLA L. Rev. 394, 414 (2014) (explaining that opportunistic insurers may leverage complex coverage policies to delay payments or deny coverage). ↑
  27.  See Daniel Schwarcz, Reevaluating Standardized Insurance Policies, 78 U. Chi. L. Rev. 1263, 1272–73 (2011). ↑
  28.  See generally Daniel Schwarcz, The Role of Courts in the Evolution of Standard Form Contracts: An Insurance Case Study, 46 BYU L. Rev. 471 (2021) (discussing the evolution of the ISO HO3 policy leading up to its 2010 revision). ↑
  29.  Notably, in one coverage scenario, an AI analysis produced by OpenAI o3 uncovered coverage issues that the human co-authors did not initially observe. ↑
  30.  In this Article, we focused our analysis on vignettes that resulted in unambiguous coverage determinations under the ISO HO3 policy. But we also tested consumers’ responses to ambiguous, atypical, and potentially unenforceable policy language. Cf. Ben-Shahar & Strahilevitz, supra note 18, at 1783–87 (using a similar vignette-based survey methodology to test consumer interpretation of both ambiguous and unambiguous contract provisions). Here, too, our initial hypothesis—that providing ambiguous policy language would increase the likelihood that respondents would recognize that there was no clear answer to the coverage question—proved incorrect in at least some of the coverage vignettes we tested. We report and discuss these results in Appendix C. ↑
  31.  Cf. Ben-Shahar & Strahilevitz, supra note 18, at 1801 (finding that survey respondents reliably shifted toward the intended interpretation when ambiguous contract language was revised for clarity). ↑
  32.  In particular, the percentage of respondents who provided accurate answers was higher by between roughly 13 percentage points on the low end and 34 percentage points on the high end across these four vignettes. In absolute terms, the percentage of respondents who received policy language and provided accurate answers to coverage questions ranged from roughly 20% to 72%. See infra Section IV.A, Figure 5. ↑
  33.  That is, for several of the coverage vignettes, it appears that the respondents may have read until they thought they understood the terms of the policy and then either stopped reading or stopped reading carefully. Determining which of those it was—partial reading or partial understanding—is not possible from our data, and further examination of that question would likely require qualitative research with consumers. One technique to further investigate the partial-reading or partial-understanding question is one-on-one cognitive interviews with consumers. In a cognitive interview, the interviewer gives the consumer the relevant document and asks the consumer to verbalize what they see and think as they interact with the document. See Gordon B. Willis & Anthony R. Artino Jr., What Do Our Respondents Think We’re Asking? Using Cognitive Interviewing to Improve Medical Education Surveys, 5 J. Graduate Med. Educ. 353, 353 (2013). Another technique is eye tracking, in which technology allows the researcher to see the portions of a document that a consumer views online. Benjamin T. Carter & Steven G. Luke, Best Practices in Eye Tracking Research, 155 Int’l J. Psychophysiology 49, 50 (2020). ↑
  34.  See Abraham & Schwarcz, supra note 22, at 248, 529. ↑
  35.  But see Lawrence Solan, Terri Rosenblatt & Daniel Osherson, False Consensus Bias in Contract Interpretation, 108 Colum. L. Rev. 1268, 1285, 1290, 1292–93 (2008). ↑
  36.  See Yonathan A. Arbel, The Readability of Contracts: Big Data Analysis, 21 J. Empirical Legal Stud. 927, 964 (2024) (positing that studies of contract readability must account for “diverse cultural, cognitive, and educational backgrounds”). ↑
  37.  Id. ↑

  38.  See, e.g., Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contract Terms: The Examples of Warranties and Security Interests, 69 Va. L. Rev. 1387, 1389 (1983). ↑

Did I Get Public Rights Wrong?

In earlier work, I discussed historical understandings of the kinds of disputes that Congress can authorize nonjudicial actors to resolve and the kinds of disputes that can be resolved only by courts. The framework that I described revolved around two distinctions: (1) the difference between “public rights” (which I defined as legal interests that belong to the government or the people collectively) and legal interests that belong to a private person; and (2) within the category of private legal interests, the difference between mere privileges or expectancies and vested rights to life, liberty, or property. In my telling, nineteenth-century lawyers and judges thought that Congress could authorize executive-branch actors to administer and dispose of “public rights” and mere privileges or expectancies without judicial involvement, but that only courts could render judgments conclusively rejecting a private person’s claim to vested rights.

Recently, Professor Gregory Ablavsky has taken issue with my account. In Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277 (2022), he identified an alleged counterexample to the framework that I described: when foreign sovereigns ceded territory to the United States, inhabitants of the ceded territories who claimed “imperfect” titles based on incomplete grants from the previous sovereign were not thought to be entitled to judicial adjudication of their claims, even though the legal interests that they asserted were regarded as property. According to Professor Ablavsky, this history supports a broader understanding of “public rights” than I offered, and it potentially legitimates more nonjudicial adjudication than my framework would suggest.

This Article responds. It explains why imperfect titles to land in the ceded territories were not treated as judicially cognizable vested rights, and it defends my understanding of “public rights.”

Introduction

Article III of the Constitution begins as follows:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.1 1.U.S. Const. art. III, § 1.Show More

The strong implication is that only true federal courts, whose judges enjoy the independence that allegedly comes with a guaranteed compensation and tenure during good behavior, can exercise what Article III calls “[t]he judicial Power of the United States.”2 2.See, e.g., Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1372–73 (2018) (“Congress cannot ‘confer the Government’s “judicial Power” on entities outside Article III.’” (quoting Stern v. Marshall, 564 U.S. 462, 484 (2011))); Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558) (opinion of Marshall, Circuit Justice) (observing that decision-makers who “do not compose a court ordained and established by congress, nor . . . hold offices during good behavior,” are “incapable of exercising any portion of the judicial power” of the United States).Show More

Unfortunately, figuring out what that means is harder than it might seem. Nonlawyers might assume that any governmental body that resolves particularized matters via adjudication—finding facts, applying pre-existing legal principles to those facts, and rendering decisions with legal effect—must be exercising “judicial Power” of the sort that Article III regulates. But history belies this assumption. With statutory authorization, officials in the executive branch have long made various kinds of adjudicative decisions that have legal consequences, but that are thought to entail the exercise of “executive” rather than “judicial” power.3 3.Cf. William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540 (2020) (“[N]ot every application of law to fact requires a court. Indeed, factfinding, and the application of law to fact, is a ubiquitous part of executive action.”).Show More For instance, the First Congress authorized a trio of executive officers to entertain petitions from applicants who were seeking patents for inventions, and to grant patents from the United States to applicants who met the statutory criteria.4 4.See Patent Act of 1790, ch. 7, § 1, 1 Stat. 109, 109–10 (repealed 1793).Show More Likewise, Congress itself routinely entertained petitions from people with legal or moral claims against the United States, and Congress used its “legislative” powers to enact private bills awarding money from the Treasury or other relief to claimants whom Congress deemed deserving.5 5.See generally William C. diGiacomantonio, Petitioners and Their Grievances: A View from the First Federal Congress, in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 29 (Kenneth R. Bowling & Donald R. Kennon eds., 2002) (canvassing many kinds of petitions acted upon by the First Congress). See also Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538, 1579–1600 (2018) (noting Congress’s eventual creation of alternative mechanisms, including administrative mechanisms, for handling matters that had generated a high volume of petitions). Admittedly, when Congress handled these matters itself, the private bills that Congress enacted did not have to reflect the application of pre-existing legal criteria; by virtue of its “legislative” powers, Congress could change the law in more freewheeling fashion than either executive or judicial actors. In practice, though, Congress could choose to perform the same sorts of adjudicative tasks in these matters that executive or judicial actors might be called upon to perform.Show More

Still, some other kinds of adjudicative decisions cannot be made either by Congress itself or by officials or agencies in the executive branch. For instance, Congress cannot enact a statute authoritatively declaring that you are guilty of a federal crime and sentencing you to prison.6 6.See U.S. Const. art. I, § 9, cl. 3 (prohibiting the passage of bills of attainder).Show More Nor can Congress empower an executive branch agency to make decisions of that sort. Such decisions can be made only by a true court, exercising “judicial” power.

Almost twenty years ago, I wrote an article providing a historical account of these distinctions.7 7.Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 (2007) [hereinafter Nelson, Adjudication].Show More Under longstanding ideas about the operation of American-style separation of powers, I argued, “judicial” power was associated with the protection of certain types of legal interests belonging to private individuals or entities—what I called “core private rights,” and what nineteenth-century lawyers thought of as “vested rights” to life, liberty, or property.8 8.See id. at 566–72; see also Caleb Nelson, Vested Rights, “Franchises,” and the Separation of Powers, 169 U. Pa. L. Rev. 1429, 1438–84 (2021) [hereinafter Nelson, Franchises] (amending what I had said about the place of “franchises” in this framework).Show More

As nineteenth-century lawyers and judges fleshed out their understanding of the constitutional distribution of powers, they tended to regard the political branches as appropriate representatives of the public, and they did not think that the government needed to exercise “judicial” power in order to dispose of so-called “public rights”—legal interests belonging to the government itself or to the people in their collective capacity. For instance, Congress could transfer land from the public domain to a private person simply by enacting a statute to that effect.9 9.See Nelson, Adjudication, supra note 7, at 577 & n.71 (citing cases).Show More Alternatively, if Congress did not want to administer such transfers itself, Congress could establish statutory criteria for land grants and authorize an executive branch agency to determine whether particular applicants satisfied them. Under nineteenth-century understandings of the Constitution, Congress normally did not have to let would-be transferees dispute those determinations in court, because the would-be transferees’ legal interests normally amounted to mere expectancies or privileges that Congress had the power to dash (rather than core private rights that had vested even as against Congress).10 10.See id. at 577–80; Nelson, Franchises, supra note 8, at 1435.Show More But things changed once a transfer occurred. To be sure, even after the government had issued a land patent evidencing the transfer, the patent might still be subject to cancellation on certain grounds (such as fraud on the part of the transferee or certain types of mistakes on the part of the land office).11 11.See, e.g., United States v. Stone, 69 U.S. (2 Wall.) 525, 535 (1865).Show More If the transferee resisted, though, the executive branch could not unilaterally determine that such grounds existed and expect courts to give its determination conclusive effect. By this point, the transferee would be claiming a “vested” right to the land, and the legally conclusive rejection of such a claim required judicial power.12 12.See id. (observing that the cancellation of a land patent “is a judicial act, and requires the judgment of a court”); see also Nelson, Adjudication, supra note 7, at 578 n.74 (citing additional cases); Nelson, Franchises, supra note 8, at 1503–04 & nn.429–32 (same).Show More

Because the current Supreme Court is looking to history to help identify the adjudicative authority that Congress can and cannot give federal administrative agencies, the framework that I described has enjoyed a resurgence.13 13.See Nelson, Franchises, supra note 8, at 1432 & nn.7–10 (citing cases and commentary).Show More Recently, however, Professor Gregory Ablavsky has argued that I missed an important part of the history and that I therefore drew the wrong conclusions. “Throughout the nineteenth century,” he writes, “the administrative adjudication of at least one form of vested rights to private property was constitutionally permissible.”14 14.Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 284 (2022).Show More Based on this alleged counterexample, he draws broad lessons—perhaps that “the administrative adjudication of rights, including to property, is on firmer historical footing than current critics argue,”15 15.Id. at 285.Show More or perhaps that history does not supply answers at all because “people then were just as confused as we are.”16 16.Id. at 351.Show More

Professor Ablavsky’s counterexample grows out of the expansion of the United States. When the United States acquired sovereignty over territories previously governed by other countries, the United States also acquired title to the public domain—the lands that had been owned by the previous sovereign. But not all of the land in these territories was in the public domain. Even if Indigenous titles had somehow been “extinguished,”17 17.See id. at 290 (noting this locution).Show More other residents of the territories claimed private ownership rights derived from the previous sovereign. The nature of those claims varied. Some people had “perfect” and “complete” titles; the former sovereign had granted a defined tract to them or their predecessors in interest, and the grant had been completed before sovereignty passed to the United States. Many other people, though, claimed “imperfect” or “inchoate” titles of one sort or another.18 18.See, e.g., 1 Curtis H. Lindley, A Treatise on the American Law Relating to Mines and Mineral Lands § 116 (San Francisco, Bancroft-Whitney Co. 1897) (discussing claims based on Mexican grants within the territory ceded by the Treaty of Guadalupe Hidalgo, and observing that “[m]ost of [the claimed grants] were inchoate—that is to say, something remained to be done to either perfect and establish the title or to fix the boundaries”); see also Tobin v. Walkinshaw, 23 F. Cas. 1338, 1342 (C.C.N.D. Cal. 1856) (No. 14,069) (defining “[t]he distinction between perfect and inchoate titles” in terms of whether “‘further action of the political authority’” is needed (quoting Hancock v. McKinney, 7 Tex. 384, 457 (1851) (opinion of Lipscomb, J.))).Show More Perhaps provincial authorities who lacked final authority to make grants had issued a “concession” in favor of a private person, but the previous sovereign had not approved and completed the grant by the time sovereignty passed to the United States.19 19.See, e.g., West v. Cochran, 58 U.S. (17 How.) 403, 413 (1855) (describing “the condition of claims to land derived from France and Spain, before the United States acquired Louisiana”); see also Snyder v. Sickles, 98 U.S. 203, 203 (1878) (“Titles to lands claimed by individuals in Louisiana at the time the province was ceded to the United States were in most cases incomplete, as the governor of the province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee-simple title . . . .”); Menard’s Heirs v. Massey, 49 U.S. (8 How.) 293, 303–06 (1850) (similar).Show More Perhaps a grant from the previous sovereign had been subject to conditions precedent (such as occupation and cultivation of the land) that had not been satisfied by the time sovereignty passed—with the result, again, that legal title to the land had remained in the previous sovereign and was now held by the United States.20 20.See United States v. Wiggins, 39 U.S. (14 Pet.) 334, 350 (1840) (observing that in Florida, “there were at the date of the [Adams-Onís] treaty very many claims, whose validity depended upon the performance of conditions in consideration of which the concessions had been made, and which must have been performed before Spain was bound to perfect the titles”).Show More Perhaps the relevant concession or grant had purported to be unqualified but had not adequately defined the boundaries of the land in question.21 21.See, e.g., Bissell v. Penrose, 49 U.S. (8 How.) 317, 334 (1850) (referring to Spanish concessions in Upper Louisiana that had “designat[ed] some natural object only, such as the head or sources of a river, as the place where the tract should be located”); More v. Steinbach, 127 U.S. 70, 78 (1888) (noting that some Spanish and Mexican grants in California had referred to “lands known only by particular names, without any designated boundaries”).Show More Perhaps the previous sovereign had simply authorized a private person to choose a specified quantity of land from within a larger tract, and the location had not been made while the previous sovereign was in charge.22 22.See Bissell, 49 U.S. (8 How.) at 334 (noting the prevalence of such floating grants in the former Louisiana territory); More, 127 U.S. at 78 (same with respect to California); cf. Scull v. United States, 98 U.S. 410, 419–20 (1879) (referring separately to “an inchoate or imperfect title” and “a perfected grant for an unknown location, or for a given quantity within defined out-boundaries,” but contrasting both with “a title completed under the foreign government”).Show More

Although the United States acknowledged an obligation to recognize imperfect titles of various sorts, and although the United States chose to recognize some additional inchoate claims that it might not have had an obligation to recognize,23 23.In the early nineteenth century, for instance, Spain occupied the territory known as West Florida, but the United States took the position that Spain had ceded this territory to France (via the Treaty of St. Ildefonso in 1800) and that the United States had acquired it from France as part of the Louisiana Purchase. In accord with this position, the Supreme Court refused to recognize land grants purportedly made by Spain during its allegedly wrongful occupation. See, e.g., United States v. Reynes, 50 U.S. (9 How.) 127, 153–54 (1850). In 1860, though, Congress enacted a statute allowing the confirmation of claims based on such grants. See Act of June 22, 1860, ch. 188, 12 Stat. 85; see also United States v. Lynde, 78 U.S. (11 Wall.) 632, 634–47 (1871) (recounting history and observing that “the case of the claimants . . . must stand on the voluntary bounty of our government, exerted through its legislative department”).Show More deciding which claims were factually and legally valid was an enormous challenge. As Professor Ablavsky recounts, Congress took different approaches at different times and with respect to different ceded territories. But a common theme was that people who were claiming less-than-perfect title had to present their claims to a board of commissioners for adjudication.24 24.See Ablavsky, supra note 14, at 287.Show More As time went by, some of the relevant statutory schemes provided for de novo judicial review of the commissioners’ decisions in a regular court,25 25.See id. at 294–95.Show More but Congress evidently did not consider that necessary. Sometimes, Congress made the commissioners’ decision to confirm a claim final and conclusive against the United States.26 26.See id. at 292.Show More Sometimes, the commissioners would simply refer their decision to Congress, which could confirm claims by statute if it so chose.27 27.See id. at 293.Show More Under either of those arrangements, the confirmation of a claim acted upon public rights by releasing whatever title the United States might otherwise have had to the land; on one way of thinking, the United States was stepping into the shoes of the former sovereign and completing the grant. But if a claim of this sort was rejected, or was not presented to the board of commissioners at all, the disappointed claimant could not get a court to recognize his purported rights to the land in question (unless Congress had so provided). In practice, moreover, the (nonjudicial) confirmation of one imperfect title could defeat the interests of others who asserted imperfect titles to the same land.28 28.See, e.g., Dent v. Emmeger, 81 U.S. (14 Wall.) 308, 312–13 (1872); Landes v. Brant, 51 U.S. (10 How.) 348, 370 (1851).Show More According to Professor Ablavsky, these arrangements are inconsistent with the framework that I described, because even imperfect titles to land allegedly were regarded as “vested” private rights to property.

Professor Ablavsky is an expert on land law in the early American West, and his account is rich and informative. It has already received well-deserved praise, including the William Nelson Cromwell Foundation’s inaugural $10,000 prize for the Legal History Article of the Year.29 29.Legal History Article of the Year Prize, William Nelson Cromwell Found., https://crom‌wellfoundation.org/legal-history-article-of-the-year-prize/ [https://perma.cc/QU7H-PPFM] (last visited Jan. 24, 2026).Show More But while I have learned from Professor Ablavsky’s research, I do not think that his evidence does much to undermine the framework that I described. This Article explains why.30 30.There is already something of a debate about whether Professor Ablavsky’s research is contrary to mine. Compare Richard H. Fallon, Jr., Non-Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice, 99 Notre Dame L. Rev. 1691, 1723–24 (2024) (taking there to be real disagreement), with Ann Woolhandler & Michael G. Collins, The Public/Private Rights Critics, 99 Notre Dame L. Rev. 1779, 1781–85 (2024) (arguing that Professor Ablavsky’s account tends to “confirm” rather than undermine the framework that I described), and Ilan Wurman, Nonexclusive Functions and Separation of Powers Law, 107 Minn. L. Rev. 735, 763 n.136 (2022) (asserting that “the distinction Ablavsky draws . . . tracks the [public/private] dichotomy exactly”).Show More

  1.  U.S. Const. art. III, § 1. ↑
  2.  See, e.g., Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1372–73 (2018) (“Congress cannot ‘confer the Government’s “judicial Power” on entities outside Article III.’” (quoting Stern v. Marshall, 564 U.S. 462, 484 (2011))); Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558) (opinion of Marshall, Circuit Justice) (observing that decision-makers who “do not compose a court ordained and established by congress, nor . . . hold offices during good behavior,” are “incapable of exercising any portion of the judicial power” of the United States). ↑
  3.  Cf. William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540 (2020) (“[N]ot every application of law to fact requires a court. Indeed, factfinding, and the application of law to fact, is a ubiquitous part of executive action.”). ↑
  4.  See Patent Act of 1790, ch. 7, § 1, 1 Stat. 109, 109–10 (repealed 1793). ↑
  5.  See generally William C. diGiacomantonio, Petitioners and Their Grievances: A View from the First Federal Congress, in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 29 (Kenneth R. Bowling & Donald R. Kennon eds., 2002) (canvassing many kinds of petitions acted upon by the First Congress). See also Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538, 1579–1600 (2018) (noting Congress’s eventual creation of alternative mechanisms, including administrative mechanisms, for handling matters that had generated a high volume of petitions). Admittedly, when Congress handled these matters itself, the private bills that Congress enacted did not have to reflect the application of pre-existing legal criteria; by virtue of its “legislative” powers, Congress could change the law in more freewheeling fashion than either executive or judicial actors. In practice, though, Congress could choose to perform the same sorts of adjudicative tasks in these matters that executive or judicial actors might be called upon to perform. ↑
  6.  See U.S. Const. art. I, § 9, cl. 3 (prohibiting the passage of bills of attainder). ↑
  7.  Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 (2007) [hereinafter Nelson, Adjudication]. ↑
  8.  See id. at 566–72; see also Caleb Nelson, Vested Rights, “Franchises,” and the Separation of Powers, 169 U. Pa. L. Rev. 1429, 1438–84 (2021) [hereinafter Nelson, Franchises] (amending what I had said about the place of “franchises” in this framework). ↑
  9.  See Nelson, Adjudication, supra note 7, at 577 & n.71 (citing cases). ↑
  10.  See id. at 577–80; Nelson, Franchises, supra note 8, at 1435. ↑
  11.  See, e.g., United States v. Stone, 69 U.S. (2 Wall.) 525, 535 (1865). ↑
  12.  See id. (observing that the cancellation of a land patent “is a judicial act, and requires the judgment of a court”); see also Nelson, Adjudication, supra note 7, at 578 n.74 (citing additional cases); Nelson, Franchises, supra note 8, at 1503–04 & nn.429–32 (same). ↑
  13.  See Nelson, Franchises, supra note 8, at 1432 & nn.7–10 (citing cases and commentary). ↑
  14.  Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 284 (2022). ↑
  15.  Id. at 285. ↑
  16.  Id. at 351. ↑
  17.  See id. at 290 (noting this locution). ↑
  18.  See, e.g., 1 Curtis H. Lindley, A Treatise on the American Law Relating to Mines and Mineral Lands § 116 (San Francisco, Bancroft-Whitney Co. 1897) (discussing claims based on Mexican grants within the territory ceded by the Treaty of Guadalupe Hidalgo, and observing that “[m]ost of [the claimed grants] were inchoate—that is to say, something remained to be done to either perfect and establish the title or to fix the boundaries”); see also Tobin v. Walkinshaw, 23 F. Cas. 1338, 1342 (C.C.N.D. Cal. 1856) (No. 14,069) (defining “[t]he distinction between perfect and inchoate titles” in terms of whether “‘further action of the political authority’” is needed (quoting Hancock v. McKinney, 7 Tex. 384, 457 (1851) (opinion of Lipscomb, J.))). ↑
  19.  See, e.g., West v. Cochran, 58 U.S. (17 How.) 403, 413 (1855) (describing “the condition of claims to land derived from France and Spain, before the United States acquired Louisiana”); see also Snyder v. Sickles, 98 U.S. 203, 203 (1878) (“Titles to lands claimed by individuals in Louisiana at the time the province was ceded to the United States were in most cases incomplete, as the governor of the province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee-simple title . . . .”); Menard’s Heirs v. Massey, 49 U.S. (8 How.) 293, 303–06 (1850) (similar). ↑
  20.  See United States v. Wiggins, 39 U.S. (14 Pet.) 334, 350 (1840) (observing that in Florida, “there were at the date of the [Adams-Onís] treaty very many claims, whose validity depended upon the performance of conditions in consideration of which the concessions had been made, and which must have been performed before Spain was bound to perfect the titles”). ↑
  21.  See, e.g., Bissell v. Penrose, 49 U.S. (8 How.) 317, 334 (1850) (referring to Spanish concessions in Upper Louisiana that had “designat[ed] some natural object only, such as the head or sources of a river, as the place where the tract should be located”); More v. Steinbach, 127 U.S. 70, 78 (1888) (noting that some Spanish and Mexican grants in California had referred to “lands known only by particular names, without any designated boundaries”). ↑
  22.  See Bissell, 49 U.S. (8 How.) at 334 (noting the prevalence of such floating grants in the former Louisiana territory); More, 127 U.S. at 78 (same with respect to California); cf. Scull v. United States, 98 U.S. 410, 419–20 (1879) (referring separately to “an inchoate or imperfect title” and “a perfected grant for an unknown location, or for a given quantity within defined out-boundaries,” but contrasting both with “a title completed under the foreign government”). ↑
  23.  In the early nineteenth century, for instance, Spain occupied the territory known as West Florida, but the United States took the position that Spain had ceded this territory to France (via the Treaty of St. Ildefonso in 1800) and that the United States had acquired it from France as part of the Louisiana Purchase. In accord with this position, the Supreme Court refused to recognize land grants purportedly made by Spain during its allegedly wrongful occupation. See, e.g., United States v. Reynes, 50 U.S. (9 How.) 127, 153–54 (1850). In 1860, though, Congress enacted a statute allowing the confirmation of claims based on such grants. See Act of June 22, 1860, ch. 188, 12 Stat. 85; see also United States v. Lynde, 78 U.S. (11 Wall.) 632, 634–47 (1871) (recounting history and observing that “the case of the claimants . . . must stand on the voluntary bounty of our government, exerted through its legislative department”). ↑
  24.  See Ablavsky, supra note 14, at 287. ↑
  25.  See id. at 294–95. ↑
  26.  See id. at 292. ↑
  27.  See id. at 293. ↑
  28.  See, e.g., Dent v. Emmeger, 81 U.S. (14 Wall.) 308, 312–13 (1872); Landes v. Brant, 51 U.S. (10 How.) 348, 370 (1851). ↑
  29.  Legal History Article of the Year Prize, William Nelson Cromwell Found., https://crom‌wellfoundation.org/legal-history-article-of-the-year-prize/ [https://perma.cc/QU7H-PPFM] (last visited Jan. 24, 2026). ↑

  30.  There is already something of a debate about whether Professor Ablavsky’s research is contrary to mine. Compare Richard H. Fallon, Jr., Non-Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice, 99 Notre Dame L. Rev. 1691, 1723–24 (2024) (taking there to be real disagreement), with Ann Woolhandler & Michael G. Collins, The Public/Private Rights Critics, 99 Notre Dame L. Rev. 1779, 1781–85 (2024) (arguing that Professor Ablavsky’s account tends to “confirm” rather than undermine the framework that I described), and Ilan Wurman, Nonexclusive Functions and Separation of Powers Law, 107 Minn. L. Rev. 735, 763 n.136 (2022) (asserting that “the distinction Ablavsky draws . . . tracks the [public/private] dichotomy exactly”). ↑

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