Suffering Before Execution

Before their executions, condemned people suffer intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this Article, I show that American institutions administer pre-execution confinement as nonpunitive detention, and I explain the consequences of that counterintuitive status. A nonpunitive paradigm curbs, at least to some degree, the dehumanization, neglect, and isolation that now dominate life on death row. It is also the doctrinal solution to a longstanding puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. By the time the state executes its condemned prisoners, they will have spent about two decades in such conditions—up from two years in 1960. The state distributes suffering across this prisoner cohort in ways that bear little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

Virtually everyone makes the punitive assumption, but there are two reasons rooted in penal theory why they should not. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering collateral to the state’s interest in incapacitating those who face execution. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would be distributed across the death-sentenced prisoner cohort arbitrarily.

There is a well-developed body of constitutional law capable of absorbing a nonpunitive version of pre-execution confinement. Under that law, when the state detains people primarily to incapacitate them, that detention is regulatory—not punitive. Due process, rather than the Eighth Amendment, constrains regulatory detention. A nonpunitive approach would reduce unnecessary suffering because due process rules more stringently constrain the state’s treatment of its prisoners. Such an approach would also give the U.S. Supreme Court better answers to the difficult Eighth Amendment questions that have vexed the Justices for decades.

Introduction

People living on American death rows will die eventually, but first they will wait. And when death does come, it is more likely to be suicide or natural causes than the executioner’s hand.1.See Tracy L. Snell, Bureau of Just. Stat., U.S. Dep’t of Just., Capital Punishment, 2020—Statistical Tables 16 tbl.11 (2021) [hereinafter 2020 BJS Data], https://bjs.ojp.gov/content/‌pub/pdf/cp20st.pdf [https://perma.cc/R85Q-KZDJ].Show More Those whom the state manages to execute will spend, on average, about twenty years in pre-execution confinement2.See id. at 15 tbl.10.Show More —often in squalor and almost always alone.3.See generally ACLU, A Death Before Dying: Solitary Confinement on Death Row 1–7 (2013) [hereinafter 26-State Report], https://www.aclu.org/sites/default/files/field_docu‌ment/deathbeforedying-report.pdf [https://perma.cc/ZHW5-EFCL] (reporting inhumane confinement conditions on death rows in the United States based on a twenty-six-state survey); John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939, 964–66 (2005) (analyzing the link between harsh death-row conditions and execution volunteers); Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213, 1213–15, 1227–32, 1234 (2016) (explaining why death row incarceration is dehumanizing and arguing that it amounts to torture); Marah Stith McLeod, Does the Death Penalty Require Death Row? The Harm of Legislative Silence, 77 Ohio St. L.J. 525, 537–39 (2016) (summarizing death-row practices and conditions across all capital punishment states).Show More In other words, the condemned suffer intensely, in solitude, and at great length.

Almost every death penalty jurisdiction in the United States maintains a death row—a segregated living arrangement reserved for death-sentenced prisoners.4.The protocols for pre-execution confinement vary by jurisdiction, and I use the term “death row” to include any living arrangement for condemned people that does not integrate them into broader prisoner living arrangements. Cf. Merel Pontier, Cruel but Not Unusual the Automatic Use of Indefinite Solitary Confinement on Death Row: A Comparison of the Housing Policies of Death-Sentenced Prisoners and Other Prisoners Throughout the United States, 26 Tex. J. C.L. & C.R. 117, 141–42 (2020) (presenting findings on relationship between solitary confinement and death row throughout the country); Brandon Vines, Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row, 55 Colum. J.L. & Soc. Probs. 591, 620–21 (2022) (same).Show More Pre-execution confinement might be a central feature of the modern death penalty, but it is theoretically neglected. Most jurists and scholars reflexively conceptualize it as an extreme form of punitive suffering.5.See infra Section I.B.Show More Even in corners of the legal academy more attentive to the theoretical question, people treat pre-execution confinement as punishment.6.To take a recent example, Professor Marah Stith McLeod published an encyclopedic account of death-row practices across the country, and she did so in service of an argument that, because death-row incarceration is punishment, the legislature must provide for it specifically. See McLeod, supra note 3, at 531, 537–39; see also infra notes 114, 135 and accompanying text (collecting sources) (highlighting professors who, despite carefully selecting terminology, nevertheless analyze death-row confinement as punishment).Show More

I have a different view: that pre-execution confinement is a form of nonpunitive custody. The execution is the penalty, and the prior confinement is the administrative detention necessary to carry that punishment out. After all, if death is the ultimate penalty, then what could the moral justification for adding punitive detention be? None of this is to say that pre-execution confinement is morally or legally unjustifiable. But if the confinement is nonpunitive, then it ought to be subject to moral and constitutional constraints that differ from those that limit punishment.

I proceed in three parts. In Part I, I set forth the punitive framework that dominates the modern understanding of pre-execution confinement. In so doing, I present the associated suffering along two dimensions. The first involves the duration of confinement, and the second involves its conditions. Most people sentenced to die will lead lives marked by some substantial combination of malnutrition, inadequate health care, substandard sanitation and ventilation, restricted movement, and excessive isolation.7.See infra Subsection I.A.2.Show More The distribution of this suffering within the cohort of death-sentenced people, moreover, has almost nothing to do with moral blameworthiness.8.See infra Subsection I.A.1.Show More Nevertheless, and as debates rage over justifications for such suffering, almost everyone is engaged in a similar project: to evaluate whether pre-execution confinement can be justified as punishment.9.See infra Section I.B.Show More

In Part II, I make the theoretical claim that pre-execution confinement is not punishment. That is, the state does not subject condemned people to harsh pre-execution treatment in order to counterbalance blameworthy conduct or for other punitive reasons.10 10.See infra Section II.A.Show More Most death rows exist because correctional administrators have decided to establish and populate them, and the suffering that condemned people experience there is typically justified by reference to incapacitation—an objective that the Supreme Court and most of the theoretical literature treat as nonpunitive.11 11.See infra notes 150–51, 242–53, 266–83 and accompanying text.Show More The problems with a punitive view of pre-execution confinement are more than just definitional. Any punitive treatment imposed by the state would violate core justificatory tenets of punishing. The state ought not impose punishment beyond the punitive treatment that the offending person deserves, so pre-execution confinement cannot be punishment added to the legislatively specified and jury-imposed maximum, which is an execution.12 12.See infra Subsection II.B.1.Show More

In Part III, I tackle constitutional doctrine. The constitutional law of nonpunitive detention can comfortably absorb confinement before execution.13 13.See infra Section III.A.Show More I also consider how that doctrinal change would affect pre-execution practices. First, it would change the procedures by which the state may permissibly isolate people in a segregated facility, and the most meaningful change would require periodic review for dangerousness.14 14.See infra Subsection III.B.1.Show More Second, it would mean that conditions of pre-execution confinement would be subject to analysis under stricter due process tests, rather than less stringent Eighth Amendment ones.15 15.See infra Subsection III.B.2.Show More Finally, it would give the Supreme Court a way to resolve a doctrinal impasse for which the Justices have offered only unconvincing answers: If lengthy pre-execution confinement entails decades of suffering, then how can the Eighth Amendment permit the state to add an execution?16 16.See infra Section III.C.Show More

In sum, pre-execution confinement should be treated as nonpunitive detention—an administrative arrangement necessary to incapacitate risks. On such an understanding, jurisdictions must reform pre-execution practices to avoid the pervasive neglect and dehumanizing treatment permitted under more punitive approaches. Readers should understand that, when I dispute the status of pre-execution confinement as punishment, I neither deny the existence of extraordinary pre-execution suffering nor suggest that it lies beyond law’s reach. Quite the opposite, in fact. Suffering before execution is cause for profound concern, both moral and legal. When the state inflicts that suffering for nonpunitive reasons, it ought to be substantially constrained, and there is constitutional doctrine capable of meaningfully constraining it.

  1.  See Tracy L. Snell, Bureau of Just. Stat., U.S. Dep’t of Just., Capital Punishment, 2020—Statistical Tables 16 tbl.11 (2021) [hereinafter 2020 BJS Data], https://bjs.ojp.gov/content/‌pub/pdf/cp20st.pdf [https://perma.cc/R85Q-KZDJ].
  2.  See id. at 15 tbl.10.
  3.  See generally ACLU, A Death Before Dying: Solitary Confinement on Death Row 1–7 (2013) [hereinafter 26-State Report], https://www.aclu.org/sites/default/files/field_docu‌ment/deathbeforedying-report.pdf [https://perma.cc/ZHW5-EFCL] (reporting inhumane confinement conditions on death rows in the United States based on a twenty-six-state survey); John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939, 964–66 (2005) (analyzing the link between harsh death-row conditions and execution volunteers); Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213, 1213–15, 1227–32, 1234 (2016) (explaining why death row incarceration is dehumanizing and arguing that it amounts to torture); Marah Stith McLeod, Does the Death Penalty Require Death Row? The Harm of Legislative Silence, 77 Ohio St. L.J. 525, 537–39 (2016) (summarizing death-row practices and conditions across all capital punishment states).
  4.  The protocols for pre-execution confinement vary by jurisdiction, and I use the term “death row” to include any living arrangement for condemned people that does not integrate them into broader prisoner living arrangements. Cf. Merel Pontier, Cruel but Not Unusual the Automatic Use of Indefinite Solitary Confinement on Death Row: A Comparison of the Housing Policies of Death-Sentenced Prisoners and Other Prisoners Throughout the United States, 26 Tex. J. C.L. & C.R. 117, 141–42 (2020) (presenting findings on relationship between solitary confinement and death row throughout the country); Brandon Vines, Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row, 55 Colum. J.L. & Soc. Probs. 591, 620–21 (2022) (same).
  5.  See infra Section I.B.
  6.  To take a recent example, Professor Marah Stith McLeod published an encyclopedic account of death-row practices across the country, and she did so in service of an argument that, because death-row incarceration is punishment, the legislature must provide for it specifically. See McLeod, supra note 3, at 531, 537–39; see also infra notes 114, 135 and accompanying text (collecting sources) (highlighting professors who, despite carefully selecting terminology, nevertheless analyze death-row confinement as punishment).
  7.  See infra Subsection I.A.2.
  8.  See infra Subsection I.A.1.
  9.  See infra Section I.B.
  10.  See infra Section II.A.
  11.  See infra notes 150–51, 242–53, 266–83 and accompanying text.
  12.  See infra Subsection II.B.1.
  13.  See infra Section III.A.
  14.  See infra Subsection III.B.1.
  15.  See infra Subsection III.B.2.
  16.  See infra Section III.C.

Defeating the Empire of Forms

For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock-full of terms that courts will not, or should not, enforce. Most think that the market for contract terms is broken, for both employees and consumer adherents. And yet forms are so embedded in our economy that it’s hard to imagine modern commercial life without them. Scholars thus push calibrated, careful solutions that walk a deeply rutted path. Notwithstanding hundreds of proposals calling for their retrenchment, the empire of forms has continued to advance into new areas of social life: we now click to agree to more written contracts every few days than our grandparents did in their entire lives.

This Article argues that the swelling scope of the empire of forms is itself a social problem, and it demands both a new diagnosis and a structural reform. Forms are everywhere in our lives because we’ve brought them with us in our pockets, and on our devices. Contract law hasn’t changed to make forms more valuable; the cost of contracting has fallen to make them ever cheaper to distribute. This encourages their distribution even though they individually are less valuable to firms. All the while, cheap forms externalize too many harms and threaten important legal values which we should defend. What’s needed is a remedy that cuts off the supply of cheap forms at its source and returns us to a world with fewer written contracts. I offer that reform with a proposed state law: the statute of frauds flipped upside-down. It would make low-stakes written-form contracts, directed at either employees or consumers, simply unenforceable. I defend the statute against charges that it is worse medicine than the mass contracting disease it seeks to cure.

Introduction

Contract’s empire of forms, on a generations-long march, continues to conquer new territory. Not content with dominating the worlds of commercial law and finance, written contracts now govern the most common consumer and employment relationships. Everywhere we look, adhesive terms stare back: they control our lives at the market,1.See Uri Benoliel & Shmuel I. Becher, Termination Without Explanation Contracts, 2022 U. Ill. L. Rev. 1059, 1062 & n.14 (describing Amazon terms of use governing returns).Show More at school,2.See Serena Zhang, Students Are Expected to Follow the Campus Compact This Fall. Here’s What It Means, Daily Pennsylvanian (July 30, 2020, 1:04 AM), https://www.thedp.com/‌article/2020/07/campus-compact-explained-penn-fall-social-distanc‌ing [https://perma.cc/QD6E-2WQ2].Show More at work,3.For a discussion of the role of arbitration agreements in employment contracts, see Alexander J.S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Stud. 1, 1 (2011).Show More on vacation,4.See David A. Hoffman, Relational Contracts of Adhesion, 85 U. Chi. L. Rev. 1395, 1437–38 (2018) (describing Airbnb’s terms of use).Show More and online;5.See Eric Goldman, Online User Account Termination and 47 U.S.C. § 230(c)(2), 2 U.C. Irvine L. Rev. 659, 659 (2012) (“An online provider’s termination of user accounts that facilitate user-generated content can be a major—and potentially even life-changing—event for users.” (footnote omitted)); see also Rory Van Loo, Federal Rules of Platform Procedure, 88 U. Chi. L. Rev. 829, 882 (2021) (discussing the necessity of online platforms having flexibility in their contracts with consumers).Show More they constrain our public law rights6.See Alexandra Lahav, In Praise of Litigation 126–27 (2017).Show More and our private law duties;7.When sued by a journalist who was banned from the platform for spreading misinformation about COVID, Twitter used its terms and conditions as part of its defense. Twitter’s motion to dismiss was denied. Berenson v. Twitter, Inc., No. 21-cv-09818, 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022).Show More and they determine procedure we use to vindicate what’s left of both.8.See generally David A. Hoffman, Whither Bespoke Procedure?, 2014 U. Ill. L. Rev. 389 (cataloguing growth in certain contract clauses controlling litigation).Show More Forms, assented to on our proliferating portable screens, have never been more dominant, nor perceived to be less morally legitimate.9.See David A. Hoffman, From Promise to Form: How Contracting Online Changes Consumers, 91 N.Y.U. L. Rev. 1595, 1632 (2016) (describing age effects in views about morality of contracting).Show More

There’s a widely remarked consensus that there’s something rotten at the heart of form contracts. And yet the rise in the sheer number and subject matter of form contracts has received less comment than you’d expect. Commentators focus on the trees: contract font and length,10 10.See Yonathan A. Arbel & Andrew Toler, ALL-CAPS, 17 J. Empirical Legal Stud. 862, 863 (2020) (discussing jurists’ emphasis on font).Show More readability,11 11.See Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. 2255, 2257 (2019) (testing readability of terms and finding them wanting).Show More firms’ monopoly power,12 12.Friedrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629, 640 (1943).Show More and lack of meaningful assent.13 13.See generally Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2013) (offering an extended critique of modern contract doctrine for permitting contractual obligation without real assent).Show More Above all, scholars bemoan bad terms. Each archetype form contract provision has developed its own (generally hostile) scholarly community: arbitration clauses,14 14.See, e.g., Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2804, 2804 (2015) (noting a connection between weak forms of consent and the expansion of arbitration’s theoretical reach and critiquing the subsequent loss of public law rights). But cf. Stephen J. Ware, The Case for Enforcing Adhesive Arbitration Agreements—With Particular Consideration of Class Actions and Arbitration Fees, 5 J. Am. Arb. 251, 254–57 (2006) (“[W]hatever lowers costs to businesses tends over time to lower prices to consumers.”); Alan Kaplinsky, Mark Levin & Daniel McKenna, Consumers Fare Better with Arbitration, Am. Banker (Dec. 23, 2014, 12:00 PM), https://www.americanbanker.com/opinion/consumers-fare-better-with-arbitration [https://perma.cc/VZP2-YQ2K] (arguing that arbitration benefits consumers and must be analyzed relative to the alternatives of court and class action litigation); Andrea Cann Chandrasekher & David Horton, Arbitration Nation: Data from Four Providers, 107 Calif. L. Rev. 1, 9 (2019) (finding repeat play effects for both plaintiffs and defendants).Show More class action waivers,15 15.See J. Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 Vand. L. Rev. 1735, 1770 (2006).Show More damage limitations,16 16.See, e.g., Debora L. Threedy, Liquidated and Limited Damages and the Revision of Article 2: An Opportunity to Rethink the U.C.C.’s Treatment of Agreed Remedies, 27 Idaho L. Rev. 427, 445 (1991) (discussing damage limitations).Show More stipulated remedies,17 17.See Carliss Chatman, Twitter Wants to Force Musk to Buy It. But There’s a Hitch., Barron’s (July 30, 2022), https://www.barrons.com/articles/twitter-elon-musk-thirteenth-amendment-51659101363 [https://perma.cc/LD2Y-BBN4] (suggesting Thirteenth Amendment issues with specific performance).Show More choice of law,18 18.See generally William J. Moon, Contracting out of Public Law, 55 Harv. J. Legis. 323 (2018) (discussing commercial contracts contracting out of legal regimes). But cf. Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev. 1151, 1152–57 (2000) (arguing that choice of law clauses allow parties to mitigate the effects of inefficient substantive laws).Show More unilateral modification,19 19.See Shmuel I. Becher & Uri Benoliel, Sneak in Contracts, 55 Ga. L. Rev. 657, 663 (2021) (suggesting that there are social costs to unilateral contract modification); Oren Bar-Gill & Kevin Davis, Empty Promises, 84 S. Cal. L. Rev. 1, 6 (2010) (articulating problems caused by unilateral modification clauses).Show More privacy policies,20 20.See Neil Richards & Woodrow Hartzog, The Pathologies of Digital Consent, 96 Wash. U. L. Rev. 1461, 1463 (2019) (criticizing notice-and-consent regime).Show More choice of forum,21 21.See Tom Cummins, Shute: The Math Is Off, 8 J.L., Econ. & Pol’y 1, 1 (2011) (discussing the costs of choice of forum clauses).Show More social media behavioral controls,22 22.See Benoliel & Becher, supra note 1, at 1061–62 (exploring termination of contracts in the context of social media).Show More nondisclosure clauses,23 23.See, e.g., David A. Hoffman & Erik Lampmann, Hushing Contracts, 97 Wash. U. L. Rev. 165, 220 (2019) (proposing a public policy defense to nondisclosure clauses).Show More and noncompetes.24 24.See, e.g., Orly Lobel, Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, 120 Colum. L. Rev. 547, 557 (2020) (noting an increase in noncompete agreements); On Amir & Orly Lobel, How Noncompetes Stifle Performance, Harv. Bus. Rev., Jan.–Feb. 2014, at 26.Show More More rarely do scholars step back and consider the forest—what to do with the ballooning number of forms we must agree to simply to get through our lives.25 25.Cf. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 647, 704–11 (2011) (using the hypothetical example of Chris Consumer to illustrate the omnipresence of disclosure a decade ago); Brett Frischmann & Evan Selinger, Re-Engineering Humanity 64 (2018) (coining the term “lollipop contracts” to describe contracts governing trivial affairs and suggesting that they exist only because transaction costs are low).Show More

Identifying, and solving, the many problems posed by mass contracting has preoccupied contract professors for the last hundred years, and it is this Article’s goal to take another whack at the thicket.26 26.The literature is vast. For examples of foundational works, see Nathan Isaacs, The Standardizing of Contracts, 27 Yale L.J. 34, 35 (1917); Karl N. Llewellyn, What Price Contract?—An Essay in Perspective, 40 Yale L.J. 704, 729–30 (1931); Kessler, supra note 12, at 629, 640; Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 370–71 (1960) (articulating reasonable expectations doctrine for the non-dickered fine print); W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 Harv. L. Rev. 529, 529 (1971). See also Ethan J. Leib, What Is the Relational Theory of Consumer Form Contract?, in Revisiting the Contracts Scholarship of Stewart Macaulay on the Empirical and the Lyrical 259, 259 (Jean Braucher, John Kidwell & William C. Whitford eds., 2013) (“One of the most puzzling and embarrassing facts about contract law and contracts scholarship in the United States is that neither has found a consistent way to treat the real contracts of our lives: standardized consumer form contracts.”).Show More It’s my premise that scholars have largely gotten the diagnosis wrong. Terms may sometimes be bad for adherents, and firms might well seek to opportunistically take slices of the pie that previously belonged to consumers and employees. But the real story of forms is, counterintuitively, how useless and wasteful their empire has become, for drafters and adherents alike. Written contracts have become omnipresent in our lives largely because technology has made legal assent too cheap to obtain.27 27.See, e.g., Nancy S. Kim, Contract’s Adaptation and the Online Bargain, 79 U. Cin. L. Rev. 1327, 1342 (2011) (“Given that digital terms are weightless, reproduction and distribution costs non-existent, and consumers highly unlikely to read online agreements, companies could add additional terms with no concomitant financial or reputational cost. Companies began using their online agreements to do more than contain costs and assess the risks of doing business.”).Show More In many cases, they are nearly zero-cost products, thrown into commerce without real thought about the benefits they bring firms, because technology made them an afterthought. Simply put, without our phones, iPads, and tablets, we wouldn’t see, or agree to, nearly so many written contracts: our swelling empire of forms is built on the portable screen.

It may seem obvious that the real foundation of contracts’ expanding empire is collapsing transaction costs.28 28.Cf. Lizette Alvarez & Jeri Clausing, Senate Passes Bill Allowing Online Contract-Signing, Pittsburgh Post-Gazette, June 17, 2000, at A-1, A-7 (“‘The bill revolutionizes the way consumers, industry and government conduct business over the Internet,’ said Sen. Spencer Abraham, R-Mich. . . . . ‘It is a tremendous cost-cutting tool because people and businesses can now enter contractual arrangements without having to drive across town, fly thousands of miles for a meeting or mail reams of paper back and forth.’”).Show More But that’s not the dominant account. Today’s scholarship looks at the hundreds of written contracts we each assent to in a year and assumes that they must benefit firms by enabling intentional exploitation. Scholars, having then suggested that contracting markets are evil, typically look to reform their content at the margins—focusing on improving mechanisms of consent, or invalidating certain clauses.29 29.One classic is Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv. L. Rev. 1173, 1262 (1983) (arguing “invisible terms” in adhesion contracts should be presumptively unenforceable). I assume you think I am exaggerating above the line. But cf. Peter Linzer, Contract as Evil, 66 Hastings L.J. 971, 975 (2015).Show More But such marginal reforms have been notably ineffective at reducing the number of aversive terms in contracts. Even outright legislative bans of certain terms only depress their use, leaving consumers subject to being swayed by terms that would be unenforceable in court.30 30.See Meirav Furth-Matzkin, On the Unexpected Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market, 9 J. Legal Analysis 1, 24, 39 (2017) (cataloguing a sample of Boston leases and finding a large percentage of unenforceable terms which likely affected consumer behavior).Show More

Locating the problem in transaction costs, as I’ll show, motivates a distinct solution. Many firms use forms because it is nearly free to do so, expanding the use of contract into areas where it really has very little social value at all. This Article proposes a legislative response to this economic problem, which likely will strike you as more of a Swiftian modest proposal than it’s intended to be.31 31.See Jonathan Swift, A Modest Proposal for Preventing the Children of Poor People in Ireland, from Being a Burden on Their Parents or Country, and for Making Them Beneficial to the Publick (1729).Show More Individual states could, and perhaps should, pass something like a reverse statute of frauds. The statute of frauds, as you may recall from your first-year contracts course, conditions enforceability on writing for deals of certain gravity of purpose—land, expensive goods, long-term service contracts, etc. I propose the converse: states should deny enforcement of a certain set of (mostly cheap) written contracts.

Under this reverse statute of frauds—which I’ll call the Statute Against Forms (or “SAF” for short)—for most goods and services contracts, there would be three legal regimes, tagged to deal value. At the lowest dollar amounts—say, $100 for goods and services contracts, or those paying less than $15 an hour—the only enforceable contracts would be oral ones. Then, for some class of contracts, including goods contracts between $100 and $500, the traditional floor for the statute of frauds, firms could either use written forms, or not, as they preferred. Finally, bigger contracts would be enforceable only when written, as has been the case for centuries.

The SAF would partially bring us back to the contracting world of 1980. Then, most of the products we bought regularly as consumers were governed by default rules of contract, not written forms.32 32.There’s nothing necessarily simpler or more transparent about the default rule regime. See Omri Ben-Shahar, Regulation Through Boilerplate: An Apologia, 112 Mich. L. Rev. 883, 889 (2014) [hereinafter Ben-Shahar, Regulation Through Boilerplate] (“Regulation by boilerplates means that one web of terms collected from many sources of law (the legally supplied default provisions) is replaced with a fairly comprehensive but concise substitute (boilerplate). The boilerplate version appears more complicated, but this is a superficial veneer due to the fact that boilerplates reproduce the entire set of governing rules in print.”); see also Russell Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U. Chi. L. Rev. 1203, 1205 (2003) (explaining the alternative to form contracts is imposed legal defaults).Show More Employment law, too, was largely governed by unwritten defaults.33 33.See infra text accompanying notes 83–86; cf. Rachel Leiser Levy, Judicial Interpretation of Employee Handbooks: The Creation of a Common Law Information-Eliciting Penalty Default Rule, 72 U. Chi. L. Rev. 695, 701–02 (2005) (outlining the history of courts’ treatment of employee handbooks).Show More Nostalgia, like paranoia, isn’t always wrong: the past default contracting world was better for most of the people who operated in it. Not only did it avoid the tyranny of unread forms that has consumed contract scholarship of late, but the rare written contracts we saw had more moral weight and heft.34 34.There is evidence that younger citizens increasingly treat contracting itself as a sort of low-stakes joke, driven by increasing exposure to online forms. See Hoffman, supra note 9, at 1597–98. Eroding contracting’s symbolic power puts pressure on other doctrinal rules deeply embedded in contract law. Cf. Tess Wilkinson-Ryan, David Hoffman & Emily Campbell, Expecting Specific Performance 13 (Inst. for L. & Econ., Research Paper No. 23-05, 2023) (noting that expectation damages under-compensate by leaving out the cost of moral harm). The empire of forms thus poisons real negotiated agreements, overall increasing the need for state enforcement.Show More

The SAF also has a singular practical advantage over competing reform proposals. The Federal Arbitration Act has defeated policymakers’ attempts to regulate form contracts twice over.35 35.See 9 U.S.C. §§ 1–16, 201–208, 301–307.Show More First, it prohibits attempts to differentially police arbitration clauses, depriving states of the ability to argue that enforcement in public courts is necessary to vindicate particular rights. It also makes it difficult to develop common law defenses to particular contract terms, as increasing numbers of disputes happen in arbitral forums, which aren’t just private: they are ill-disposed to innovate around terms, or processes of formation.36 36.Cf. Samuel Issacharoff & Florencia Marotta-Wurgler, The Hollowed Out Common Law, 67 UCLA L. Rev. 600, 607–08 (2020) (illustrating the decline in state-made common law doctrine).Show More The SAF will avoid this two-pronged attack, as the growth of arbitration is primarily a phenomenon of increasing adoption of cheap contracts. Eliminate those written forms for certain kinds of goods and services, and more disputes will end up litigated in court. Thus, the SAF offers a practical legislative solution that states could use to reduce arbitration’s reach and revitalize public and private rights.

That said, I face a steep uphill climb in convincing you that we should simply eliminate whole classes of employee and consumer forms. A world without certain written contracts is potentially socially disruptive. It’s not necessarily better for all individual adherents. And notably, eliminating forms won’t generate more formal legal autonomy, since the defaults that law provides us are just as adhesive as those that we click to agree to.37 37.Ben-Shahar, Regulation Through Boilerplate, supra note 32, at 888–89.Show More But I’m going to try to convince you that omnipresent, cheap forms have cost us dearly.38 38.For a general account of externalities and non-parties in contract law, see Omri Ben-Shahar, David A. Hoffman & Cathy Hwang, Nonparty Interests in Contract Law, 171 U. Pa. L. Rev. 1095, 1110–12 (2023); see also Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. Pa. L. Rev. 1, 52, 56–57 (2008) (“[D]ata on credit card choice and use show that consumer mistakes cost hundreds of dollars a year per consumer. . . . The aggregate costs are staggering.”).Show More This presents a novel social problem on two levels.

Many form contracts we click to agree to today, on the margin, erode public goods, from safety to equality. They do so even where parties themselves arguably benefit from the form. In fact, perhaps it’s because adherents prefer to make contractual tradeoffs that this problem has proven so wicked.39 39.Cf. Salomé Viljoen, A Relational Theory of Data Governance, 131 Yale L.J. 573, 598–600 (2021) (noting the gap between individual and social values in privacy); Frischmann & Selinger, supra note 25, at 78 (noting that adherents are perfectly rational maximizers).Show More Externalities are rife even for terms that courts deem unenforceable, as people respond to the contracts they read, not the ones that would stand up in court.40 40.See Meirav Furth-Matzkin & Roseanna Sommers, Consumer Psychology and the Problem of Fine-Print Fraud, 72 Stan. L. Rev. 503, 504, 512 (2020) (discussing individuals’ unwillingness to challenge unenforceable terms); Dennis P. Stolle & Andrew J. Slain, Standard Form Contracts and Contract Schemas: A Preliminary Investigation of the Effects of Exculpatory Clauses on Consumers’ Propensity to Sue, 15 Behav. Sci. & L. 83, 91 (1997) (finding that exculpatory language deterred hypothetical willingness to sue).Show More Forms are full of clauses that exclude tort remedies, waive property standards, and cut back on public law remedies for antidiscrimination. When coupled with procedural devices that make it harder to vindicate such small-stakes individual harms in court, small-stakes forms off-load risk to the public.41 41.See, e.g., Judith Resnik, supra note 14 (discussing the relationship between adhesion contracts and rights).Show More

But if it’s true that firms benefit from such sloughed-off social costs, the argument against all forms is hard to maintain. Why not just—as so many law professors have argued (and argued)42 42.I even split up the preemption footnote into multiple parts and won’t refer to it again here, lest you feel dispirited about the possibility of reform.Show More—try harder to reduce the incidence of bad terms? Punitive damages for bad contracts! Bar sanctions for bad contract drafters! Private attorneys general, given bounties to hunt down unenforceable terms! Put aside the obvious problem that these solutions are fanciful43 43.Incentives matter, and toothy sanctions would marginally affect the likelihood of bad terms. But these solutions implicitly assume that cheap forms have positive social value. Perhaps strict liability is the right approach to this problem, not a negligence rule.Show More: they also beg the question. Rejecting cheap forms doesn’t turn on convincing you that terms and firms are bad but rather that the entire apparatus of form production has gone off the rails.44 44.To be clear, my argument is more attractive if you hold these beliefs, so I don’t try very hard to dissuade you either.Show More Contracts are so cheap to produce that they can be stuffed to the gills with bad terms, benefiting lawyer-agents, without materially improving firm wealth. In fact, I’ll argue that technology has so subsidized contract formation that it no longer is obvious that cheap forms have real benefits for drafters. Forms thus externalize diffuse harms without necessarily internalizing discrete benefits. The SAF would undo these systemic consequences at their root.

But even before diving into the details, the SAF may provoke a reaction in most readers: Are you serious? The idea of prohibiting contracts not based on their content,45 45.See U.C.C. § 2-302 (Am. L. Inst. & Unif. L. Comm’n 2023) (covering unconscionability rules).Show More the quality of assent, or party identity,46 46.See, e.g., 5 Williston on Contracts § 9:1 (4th ed.), Westlaw (database updated May 2023) [hereinafter Williston on Contracts] (describing capacity doctrines).Show More but rather because they are in writing runs against the main current of American contract law. Our law, developed by courts and legislatures alike, is pro-disclosure and pro-writing.47 47.See 9 Williston on Contracts, supra note 46, § 21:1 (describing the importance of written contracts in the rise of the statute of frauds).Show More And for good reason: written contracts are more easily and predictably litigated, they are said to reduce the incidence of fraud,48 48.Hackney v. Morelite Constr. D.C. Corp., 418 A.2d 1062, 1065–67 (D.C. 1980) (recounting the anti-fraud role of the statute of frauds).Show More permit firms to grow internally and yet maintain standard practices to outsiders,49 49.See Rakoff, supra note 29, at 1178 n.13 (stating that without standardized contracts, “the making of offsetting transactions, covering, and the entire apparatus of speculation on an exchange would be impossible or much more difficult”); Jason Scott Johnston, The Return of Bargain: An Economic Theory of How Standard-Form Contracts Enable Cooperative Negotiation Between Businesses and Consumers, 104 Mich. L. Rev. 857, 865 (2005) (highlighting corporations’ use of employee discretion in departing from formal contractual terms); Restatement (Second) of Contracts § 211 cmt. a (Am. L. Inst. 1981) (“Standardization of agreements serves many of the same functions as standardization of goods and services; both are essential to a system of mass production and distribution.”).Show More and allow shoppers and policymakers to compare terms (if they read them) and thus price and analyze legal rights.50 50.See infra text accompanying notes 66–68 (explaining the economics of boilerplate).Show More Depriving firms of the ability to contract in writing, even for small-stakes contracts, seems destined to lead to some very perverse outcomes indeed.

Consider the introduction to the argument section in a recent certiorari petition, which asked the Supreme Court to resolve a question about the preemptive scope of the Copyright Act in a way that favored contract over federal statute:

All across the internet, websites employ terms of service to impose conditions on visitors’ access to their services. The laws of every state protect such terms as binding contractual obligations. That contractual protection is essential for a vast swath of internet businesses. They invest enormous resources in activities, such as aggregating information from various sources, that provide extraordinary benefits to the public. And they offer the fruits of their labors to the public, often for free. For many of them, contract law is the only way to protect their investment from exploitation by others, including exploitation by immensely powerful internet giants like Google.51 51.Petition for Writ of Certiorari at 1, ML Genius Holdings LLC v. Google LLC, 143 S. Ct. 2658 (2023) (No. 22-121), 2022 WL 3227953, at *1.Show More

It’s my goal to convince you that the normative claims in this passage, and the empirical data they appear to rest on, are overwrought at best. We don’t need written form contracts for smaller goods and services transactions, nor for low-wage jobs. Making them unenforceable will neither create chaos in large firms nor kill the internet or other forms of modern commerce. And, though the SAF has no precise precedent, it’s not invented whole cloth: we’ve experimented with regulation of forms before, without the sky falling. And, even if you aren’t fully persuaded, I hope to make you think differently about the value of forms and what the law can do to suppress them on the margin.

I’ll start by offering a summary of broadly shared complaints that modern scholars have lodged with our contracting regime. Then, in Part II, I present the solutions on offer, all incomplete, preempted, or resigned to failure. Part III provides the heart of my account about the relationship of technological change and transaction costs to the contracting world we live in, and what that means for current debates. Part IV describes, defends, and frets about the SAF.

  1.  See Uri Benoliel & Shmuel I. Becher, Termination Without Explanation Contracts, 2022 U. Ill. L. Rev. 1059, 1062 & n.14 (describing Amazon terms of use governing returns).
  2.  See Serena Zhang, Students Are Expected to Follow the Campus Compact This Fall. Here’s What It Means, Daily Pennsylvanian (July 30, 2020, 1:04 AM), https://www.thedp.com/‌article/2020/07/campus-compact-explained-penn-fall-social-distanc‌ing [https://perma.cc/QD6E-2WQ2].
  3.  For a discussion of the role of arbitration agreements in employment contracts, see Alexander J.S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Stud. 1, 1 (2011).
  4.  See David A. Hoffman, Relational Contracts of Adhesion, 85 U. Chi. L. Rev. 1395, 1437–38 (2018) (describing Airbnb’s terms of use).
  5.  See Eric Goldman, Online User Account Termination and 47 U.S.C. § 230(c)(2), 2 U.C. Irvine L. Rev. 659, 659 (2012) (“An online provider’s termination of user accounts that facilitate user-generated content can be a major—and potentially even life-changing—event for users.” (footnote omitted)); see also Rory Van Loo, Federal Rules of Platform Procedure, 88 U. Chi. L. Rev. 829, 882 (2021) (discussing the necessity of online platforms having flexibility in their contracts with consumers).
  6.  See Alexandra Lahav, In Praise of Litigation 126–27 (2017).
  7.  When sued by a journalist who was banned from the platform for spreading misinformation about COVID, Twitter used its terms and conditions as part of its defense. Twitter’s motion to dismiss was denied. Berenson v. Twitter, Inc., No. 21-cv-09818, 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022).
  8.  See generally David A. Hoffman, Whither Bespoke Procedure?, 2014 U. Ill. L. Rev. 389 (cataloguing growth in certain contract clauses controlling litigation).
  9.  See David A. Hoffman, From Promise to Form: How Contracting Online Changes Consumers, 91 N.Y.U. L. Rev. 1595, 1632 (2016) (describing age effects in views about morality of contracting).
  10.  See Yonathan A. Arbel & Andrew Toler, ALL-CAPS, 17 J. Empirical Legal Stud. 862, 863 (2020) (discussing jurists’ emphasis on font).
  11.  See Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. 2255, 2257 (2019) (testing readability of terms and finding them wanting).
  12.  Friedrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629, 640 (1943).
  13.  See generally Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2013) (offering an extended critique of modern contract doctrine for permitting contractual obligation without real assent).
  14.  See, e.g., Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2804, 2804 (2015) (noting a connection between weak forms of consent and the expansion of arbitration’s theoretical reach and critiquing the subsequent loss of public law rights). But cf. Stephen J. Ware, The Case for Enforcing Adhesive Arbitration Agreements—With Particular Consideration of Class Actions and Arbitration Fees, 5 J. Am. Arb. 251, 254–57 (2006) (“[W]hatever lowers costs to businesses tends over time to lower prices to consumers.”); Alan Kaplinsky, Mark Levin & Daniel McKenna, Consumers Fare Better with Arbitration, Am. Banker (Dec. 23, 2014, 12:00 PM), https://www.americanbanker.com/opinion/consumers-fare-better-with-arbitration [https://perma.cc/VZP2-YQ2K] (arguing that arbitration benefits consumers and must be analyzed relative to the alternatives of court and class action litigation); Andrea Cann Chandrasekher & David Horton, Arbitration Nation: Data from Four Providers, 107 Calif. L. Rev. 1, 9 (2019) (finding repeat play effects for both plaintiffs and defendants).
  15.  See J. Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 Vand. L. Rev. 1735, 1770 (2006).
  16.  See, e.g., Debora L. Threedy, Liquidated and Limited Damages and the Revision of Article 2: An Opportunity to Rethink the U.C.C.’s Treatment of Agreed Remedies, 27 Idaho L. Rev. 427, 445 (1991) (discussing damage limitations).
  17.  See Carliss Chatman, Twitter Wants to Force Musk to Buy It. But There’s a Hitch., Barron’s (July 30, 2022), https://www.barrons.com/articles/twitter-elon-musk-thirteenth-amendment-51659101363 [https://perma.cc/LD2Y-BBN4] (suggesting Thirteenth Amendment issues with specific performance).
  18.  See generally William J. Moon, Contracting out of Public Law, 55 Harv. J. Legis. 323 (2018) (discussing commercial contracts contracting out of legal regimes). But cf. Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev. 1151, 1152–57 (2000) (arguing that choice of law clauses allow parties to mitigate the effects of inefficient substantive laws).
  19.  See Shmuel I. Becher & Uri Benoliel, Sneak in Contracts, 55 Ga. L. Rev. 657, 663 (2021) (suggesting that there are social costs to unilateral contract modification); Oren Bar-Gill & Kevin Davis, Empty Promises, 84 S. Cal. L. Rev. 1, 6 (2010) (articulating problems caused by unilateral modification clauses).
  20.  See Neil Richards & Woodrow Hartzog, The Pathologies of Digital Consent, 96 Wash. U. L. Rev. 1461, 1463 (2019) (criticizing notice-and-consent regime).
  21.  See Tom Cummins, Shute: The Math Is Off, 8 J.L., Econ. & Pol’y 1, 1 (2011) (discussing the costs of choice of forum clauses).
  22.  See Benoliel & Becher, supra note 1, at 1061–62 (exploring termination of contracts in the context of social media).
  23.  See, e.g., David A. Hoffman & Erik Lampmann, Hushing Contracts, 97 Wash. U. L. Rev. 165, 220 (2019) (proposing a public policy defense to nondisclosure clauses).
  24.  See, e.g., Orly Lobel, Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, 120 Colum. L. Rev. 547, 557 (2020) (noting an increase in noncompete agreements); On Amir & Orly Lobel, How Noncompetes Stifle Performance, Harv. Bus. Rev., Jan.–Feb. 2014, at 26.
  25.  Cf. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 647, 704–11 (2011) (using the hypothetical example of Chris Consumer to illustrate the omnipresence of disclosure a decade ago); Brett Frischmann & Evan Selinger, Re-Engineering Humanity 64 (2018) (coining the term “lollipop contracts” to describe contracts governing trivial affairs and suggesting that they exist only because transaction costs are low).
  26.  The literature is vast. For examples of foundational works, see Nathan Isaacs, The Standardizing of Contracts, 27 Yale L.J. 34, 35 (1917); Karl N. Llewellyn, What Price Contract?—An Essay in Perspective, 40 Yale L.J. 704, 729–30 (1931); Kessler, supra note 12, at 629, 640; Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 370–71 (1960) (articulating reasonable expectations doctrine for the non-dickered fine print); W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 Harv. L. Rev. 529, 529 (1971). See also Ethan J. Leib, What Is the Relational Theory of Consumer Form Contract?, in Revisiting the Contracts Scholarship of Stewart Macaulay on the Empirical and the Lyrical 259, 259 (Jean Braucher, John Kidwell & William C. Whitford eds., 2013) (“One of the most puzzling and embarrassing facts about contract law and contracts scholarship in the United States is that neither has found a consistent way to treat the real contracts of our lives: standardized consumer form contracts.”).
  27.  See, e.g., Nancy S. Kim, Contract’s Adaptation and the Online Bargain, 79 U. Cin. L. Rev. 1327, 1342 (2011) (“Given that digital terms are weightless, reproduction and distribution costs non-existent, and consumers highly unlikely to read online agreements, companies could add additional terms with no concomitant financial or reputational cost. Companies began using their online agreements to do more than contain costs and assess the risks of doing business.”).
  28.  Cf. Lizette Alvarez & Jeri Clausing, Senate Passes Bill Allowing Online Contract-Signing, Pittsburgh Post-Gazette, June 17, 2000, at A-1, A-7 (“‘The bill revolutionizes the way consumers, industry and government conduct business over the Internet,’ said Sen. Spencer Abraham, R-Mich. . . . . ‘It is a tremendous cost-cutting tool because people and businesses can now enter contractual arrangements without having to drive across town, fly thousands of miles for a meeting or mail reams of paper back and forth.’”).
  29.  One classic is Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv. L. Rev. 1173, 1262 (1983) (arguing “invisible terms” in adhesion contracts should be presumptively unenforceable). I assume you think I am exaggerating above the line. But cf. Peter Linzer, Contract as Evil, 66 Hastings L.J. 971, 975 (2015).
  30.  See Meirav Furth-Matzkin, On the Unexpected Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market, 9 J. Legal Analysis 1, 24, 39 (2017) (cataloguing a sample of Boston leases and finding a large percentage of unenforceable terms which likely affected consumer behavior).
  31.  See Jonathan Swift, A Modest Proposal for Preventing the Children of Poor People in Ireland, from Being a Burden on Their Parents or Country, and for Making Them Beneficial to the Publick (1729).
  32.  There’s nothing necessarily simpler or more transparent about the default rule regime. See Omri Ben-Shahar, Regulation Through Boilerplate: An Apologia, 112 Mich. L. Rev. 883, 889 (2014) [hereinafter Ben-Shahar, Regulation Through Boilerplate] (“Regulation by boilerplates means that one web of terms collected from many sources of law (the legally supplied default provisions) is replaced with a fairly comprehensive but concise substitute (boilerplate). The boilerplate version appears more complicated, but this is a superficial veneer due to the fact that boilerplates reproduce the entire set of governing rules in print.”); see also Russell Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U. Chi. L. Rev. 1203, 1205 (2003) (explaining the alternative to form contracts is imposed legal defaults).
  33.  See infra text accompanying notes 83–86; cf. Rachel Leiser Levy, Judicial Interpretation of Employee Handbooks: The Creation of a Common Law Information-Eliciting Penalty Default Rule, 72 U. Chi. L. Rev. 695, 701–02 (2005) (outlining the history of courts’ treatment of employee handbooks).
  34.  There is evidence that younger citizens increasingly treat contracting itself as a sort of low-stakes joke, driven by increasing exposure to online forms. See Hoffman, supra note 9, at 1597–98. Eroding contracting’s symbolic power puts pressure on other doctrinal rules deeply embedded in contract law. Cf. Tess Wilkinson-Ryan, David Hoffman & Emily Campbell, Expecting Specific Performance 13 (Inst. for L. & Econ., Research Paper No. 23-05, 2023) (noting that expectation damages under-compensate by leaving out the cost of moral harm). The empire of forms thus poisons real negotiated agreements, overall increasing the need for state enforcement.
  35.  See 9 U.S.C. §§ 1–16, 201–208, 301–307.
  36.  Cf. Samuel Issacharoff & Florencia Marotta-Wurgler, The Hollowed Out Common Law, 67 UCLA L. Rev. 600, 607–08 (2020) (illustrating the decline in state-made common law doctrine).
  37.  Ben-Shahar, Regulation Through Boilerplate, supra note 32, at 888–89.
  38.  For a general account of externalities and non-parties in contract law, see Omri Ben-Shahar, David A. Hoffman & Cathy Hwang, Nonparty Interests in Contract Law, 171 U. Pa. L. Rev. 1095, 1110–12 (2023); see also Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. Pa. L. Rev. 1, 52, 56–57 (2008) (“[D]ata on credit card choice and use show that consumer mistakes cost hundreds of dollars a year per consumer. . . . The aggregate costs are staggering.”).
  39.  Cf. Salomé Viljoen, A Relational Theory of Data Governance, 131 Yale L.J. 573, 598–600 (2021) (noting the gap between individual and social values in privacy); Frischmann & Selinger, supra note 25, at 78 (noting that adherents are perfectly rational maximizers).
  40.  See Meirav Furth-Matzkin & Roseanna Sommers, Consumer Psychology and the Problem of Fine-Print Fraud, 72 Stan. L. Rev. 503, 504, 512 (2020) (discussing individuals’ unwillingness to challenge unenforceable terms); Dennis P. Stolle & Andrew J. Slain, Standard Form Contracts and Contract Schemas: A Preliminary Investigation of the Effects of Exculpatory Clauses on Consumers’ Propensity to Sue, 15 Behav. Sci. & L. 83, 91 (1997) (finding that exculpatory language deterred hypothetical willingness to sue).
  41.  See, e.g., Judith Resnik, supra note 14 (discussing the relationship between adhesion contracts and rights).
  42.  I even split up the preemption footnote into multiple parts and won’t refer to it again here, lest you feel dispirited about the possibility of reform.
  43.  Incentives matter, and toothy sanctions would marginally affect the likelihood of bad terms. But these solutions implicitly assume that cheap forms have positive social value. Perhaps strict liability is the right approach to this problem, not a negligence rule.
  44.  To be clear, my argument is more attractive if you hold these beliefs, so I don’t try very hard to dissuade you either.
  45.  See U.C.C. § 2-302 (Am. L. Inst. & Unif. L. Comm’n 2023) (covering unconscionability rules).
  46.  See, e.g., 5 Williston on Contracts § 9:1 (4th ed.), Westlaw (database updated May 2023) [hereinafter Williston on Contracts] (describing capacity doctrines).
  47.  See 9 Williston on Contracts, supra note 46, § 21:1 (describing the importance of written contracts in the rise of the statute of frauds).
  48.  Hackney v. Morelite Constr. D.C. Corp., 418 A.2d 1062, 1065–67 (D.C. 1980) (recounting the anti-fraud role of the statute of frauds).
  49.  See Rakoff, supra note 29, at 1178 n.13 (stating that without standardized contracts, “the making of offsetting transactions, covering, and the entire apparatus of speculation on an exchange would be impossible or much more difficult”); Jason Scott Johnston, The Return of Bargain: An Economic Theory of How Standard-Form Contracts Enable Cooperative Negotiation Between Businesses and Consumers, 104 Mich. L. Rev. 857, 865 (2005) (highlighting corporations’ use of employee discretion in departing from formal contractual terms); Restatement (Second) of Contracts § 211 cmt. a (Am. L. Inst. 1981) (“Standardization of agreements serves many of the same functions as standardization of goods and services; both are essential to a system of mass production and distribution.”).
  50.  See infra text accompanying notes 66–68 (explaining the economics of boilerplate).
  51.  Petition for Writ of Certiorari at 1, ML Genius Holdings LLC v. Google LLC, 143 S. Ct. 2658 (2023) (No. 22-121), 2022 WL 3227953, at *1.

Silencing Litigation Through Bankruptcy

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use of bankruptcy. Whereas the current literature largely discusses mass tort bankruptcy from a doctrinal, constitutional, or economic perspective, this Article examines how bankruptcy proceedings like these cause direct harms to survivors, to public trust in the justice system, and to the corporate economy. It traces the evolution of defendants’ use of bankruptcy to resolve mass torts from asbestos, IUD, and breast implant product liability litigation to its present-day use in controversies involving the Catholic Church, Purdue Pharma, the Weinstein Companies, USA Gymnastics, the Boy Scouts of America, Alex Jones’s Infowars, and Johnson & Johnson. The Article shows how the prior use of reorganization for mass torts created the necessary conditions to allow defendants to use bankruptcy to silence people and facilitate cover-ups in a wider variety of onslaught litigation. It concludes with a normative proposal for the narrow circumstances in which courts should allow bankruptcy to be used to deal with onslaught litigation, while still preserving the voices of those harmed.

Introduction

“I do not forgive you.”1.Jeremy Hill, ‘I Do Not Forgive You:’ Opioid Victims Address Sacklers Directly, Bloomberg (Mar. 10, 2022), https://www.bloomberg.com/news/articles/2022-03-10/sacklers-to-hear-from-opioid-victims-live-in-bankruptcy-court [https://perma.cc/2EHY-S4VW].Show More

That is what over two dozen individuals told three members of the Sackler family, the owners of the now-notorious Purdue Pharma drug company, as part of a larger recounting of how the immensely addictive painkiller OxyContin destroyed lives and killed loved ones.2.Id.; see also Brian Mann, For the First Time, Victims of the Opioid Crisis Formally Confront the Sackler Family, NPR (Mar. 10, 2022, 4:51 PM), https://www.npr.org/2022/‌03/10/1085174528/sackler-opioid-victims [https://perma.cc/6X8K-MRVB] (detailing the testimonies).Show More The Sacklers had to confront, in person, stories of dead children, lost spouses, and babies born with opioid dependencies.3.Hill, supra note 1.Show More

This opportunity for survivors and families of victims to be heard took place during Purdue Pharma’s chapter 11 bankruptcy case through which it sought to reorganize.4.Id.Show More Survivors and their families fought hard for the chance to face the Sacklers directly, which may ring as atypical for a legal proceeding that would resolve the claims that they held against Purdue Pharma and the Sacklers.5.See Mann, supra note 2 (noting the Sacklers’ lack of an apology for years during the opioid crisis).Show More That they asked and were allowed to confront the Sacklers as part of Purdue Pharma’s reorganization proceeding indeed was atypical for a bankruptcy case and also was unusual of most civil lawsuits. But the essence of what survivors and families of victims sought—for their allegations to be heard and to have some closure regarding their experiences—is precisely part of what the Sacklers were trying to avoid via Purdue Pharma’s chapter 11 case.

The Sacklers were not misguided in their expectations of what bankruptcy might provide them. That survivors and their families—in bankruptcy terms, claimants or creditors—had a voice in Purdue Pharma’s reorganization, including vis-à-vis related third parties like the Sacklers, was extraordinary. Some claimants in Purdue Pharma received confrontational justice. More typical of civil lawsuits, including multidistrict litigation of complex cases, is that plaintiffs have a robust ability, through their counsel, to engage in discovery about the alleged harms, to participate in the litigation, and to possibly gain some closure.

This process for the vindication of rights provides procedural justice, which supports the participation and dignity values that are vital for people to perceive legal processes as legitimate, and which is part of the fundamental constitutional principle of due process.6.See Pamela Foohey, A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy, 60 B.C. L. Rev. 2297, 2313–16 (2019) (discussing procedural justice); David Resnick, Due Process and Procedural Justice, in 18 Nomos 206 (J. Roland Pennock & John W. Chapman eds., 1977) (linking due process and procedural justice); infra Section IV.A.Show More Without procedural justice, those who allege harm suffer further from an inability to “have their wills ‘counted’[] in societal decisions they care about,” and people more generally lose faith in the legal system.7.Victor D. Quintanilla & Michael A. Yontz, Human-Centered Civil Justice Design: Procedural Justice and Process Value Pluralism, 54 Tulsa L. Rev. 113, 115, 140–41 (2018) (quoting Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights—Part I, 1973 Duke L.J. 1153, 1172).Show More The disappearance of opportunities for would-be plaintiffs to litigate their claims against defendants like the Sacklers when businesses seek to reorganize is exactly why for-profit and nonprofit corporations,8.In this Article, we generally use the term “corporation” to refer to the for-profit and nonprofit business entities that file chapter 11. Although not all businesses that have filed chapter 11 are organized as corporations, such as some of the Catholic dioceses, the majority are. For simplicity, we refer to businesses as “corporations.”Show More and the people associated with those businesses, are increasingly using chapter 11 to deal with what we term in this Article onslaught litigation.9.This term is inspired by the U.S. Court of Appeals for the Second Circuit’s discussion of the trust established in Johns-Manville’s chapter 11 case, which it filed to deal with mass tort litigation. Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 640 (2d Cir. 1988) (“[T]he Plan seeks to ensure that health claims can be asserted only against the Trust and that Manville’s operating entities will be protected from an onslaught of crippling lawsuits that could jeopardize the entire reorganization effort.” (emphasis added)). Jonathan Lipson recently similarly defined what he terms “social debt” bankruptcies: “Social debt is financial liability for serious (e.g., criminal) misconduct, often involving violations of health and safety laws, made unsustainable due to persistent governance failures of transparency and accountability.” Jonathan C. Lipson, The Rule of the Deal: Bankruptcy Bargains and Other Misnomers, 97 Am. Bankr. L.J. 41, 43 (2023) [hereinafter Lipson, The Rule of the Deal]. Our definition of “onslaught litigation” is broader. It focuses less on the normative qualities of the underlying harms and more on the operational and time resources, including public relations resources, that a corporation may project it will have to devote to the litigation. Onslaught litigation includes violations of health and safety laws, sexual harassment, and criminal misconduct, but also may include, for example, allegations of underpaying workers, of price fixing, or of deceptive trade practices.Show More

Onslaught litigation, as we define the term, refers to alleged wrongful conduct that produces claims from multiple plaintiffs against the same defendant or group of defendants. When collected, the magnitude of claims and lawsuits presents the possible financial or operational crippling of the defendants over the long-term, or else will require the defendant to devote tremendous operational resources and time to the litigation because of its public saliency. Mass tort litigation is an example of onslaught litigation, such as the opioid liability faced by Purdue Pharma and the Sacklers, or the asbestos multidistrict and class action litigation that started in the 1980s.10 10.Infra Sections II.C, III.B.Show More

Although onslaught litigation typically presents as mass tort claims, it encompasses many more kinds of lawsuits.11 11.Mass tort litigation refers to the situation where many individuals have tort-based claims against a single or a handful or persons (or entities). See Douglas G. Smith, Resolution of Mass Tort Claims in the Bankruptcy System, 41 U.C. Davis L. Rev. 1613, 1616–26 (2008) (overviewing mass tort litigation); infra Section I.B.Show More It includes claims stemming from alleged harms that affect a smaller group of people and may yield only a handful of lawsuits, but which reflect very poorly on a corporation and its directors, officers, and owners. Examples of this type of onslaught litigation include allegations of rampant sexual abuse and harassment, such as Harvey Weinstein’s abuse and harassment of almost one hundred women.12 12.See Amelia Schonbek, The Complete List of Allegations Against Harvey Weinstein, N.Y.: The Cut (Jan. 6, 2020), https://www.thecut.com/2020/01/harvey-weinstein-complete-list-allegations.html [https://perma.cc/KE2C-Z5KK] (listing allegations).Show More Onslaught litigation also encompasses the prominent defamation cases against Alex Jones and Infowars for Jones’s repeatedly calling the 2012 shooting at the Sandy Hook Elementary School in Connecticut a “giant hoax.”13 13.Alex Jones, Infowars, and the Sandy Hook Defamation Suits, First Amend. Watch (Dec. 2, 2022), https://firstamendmentwatch.org/deep-dive/alex-jones-infowars-and-the-sandy-hoo‌k-defamation-suits [https://perma.cc/YX2J-BTJN].Show More

The critical connection among these examples is the significance of the accusations and lawsuits to a corporation’s continued smooth functioning now or continued function in the future. Magnitude refers both to the number of potential lawsuits, such as with mass torts, and to the public outrage and shock over even a few allegations and lawsuits. The prominence and public saliency of the allegations make the resulting lawsuits onslaught litigation. When faced with onslaught litigation, corporations’ directors, officers, and owners naturally want to truncate the lawsuits and minimize additional public discussion of the allegations.

Reorganizing via chapter 11 promises to collect and resolve most or all of the lawsuits and claims arising from the alleged wrongdoing. It also has the potential to decrease information available to the public about the allegations. 14 14.A chapter 11 filing, initially, will require a corporation to disclose more information than it would be required to disclose in civil litigation, especially given the use of protective orders. This Article is concerned with the totality of information that may be exposed via news stories about litigation and through litigation filed over decades, which a chapter 11 filing will cut off. Stated differently, corporations are trading the possibility of alleged wrongdoings circulating in the public for decades (or longer) for chapter 11’s immediate, short-term, and predictable information disclosure.Show More When corporations file chapter 11 in the wake of onslaught litigation, what they seek is two-fold: to bypass procedural justice and to shut down discussion of their purported wrongdoings.

Based on past chapter 11 proceedings, corporations’ directors and officers expect that negotiations will be allowed to take place between only a subset of parties, that discovery requests can be pushed back against forcefully, and that requests for examiners can be successfully fought. They also expect that related claims against business entities and people arising from the alleged wrongdoings that do not file bankruptcy will be swept into the reorganization case. They further expect that calls for shortening the reorganization process will be heeded and that bankruptcy law provisions designed to ensure claimants can vote on the proposed plan will only be nominally followed—usually under the guise of ensuring that victims receive as much money as possible.

Silencing people and sweeping the alleged harms under the proverbial rug become a byproduct of reassurances about making sure that victims are treated well. But it is the corporation and its leaders that benefit, not the people who they hurt. The chapter 11 case will end with a forever resolution of onslaught litigation claims against the corporation and third parties and with little public understanding of what the corporation sought to escape through bankruptcy. The corporation (and its owners) will continue to operate, effectively freed from its wrongdoing.15 15.See infra Part II for an overview of chapter 11 as applied to onslaught litigation.Show More

This Article argues that it is time for this destructive, targeted use of bankruptcy to be reined in and proposes how to limit and control those chapter 11 cases filed with a primary purpose of resolving onslaught litigation. In the past decade, chapter 11 cases filed to deal with onslaught litigation have made headline news. Some of these filings are discussed in the media and literature as mass tort bankruptcy cases such as: Catholic dioceses,16 16.Rebecca Klapper, 4 New York Dioceses File for Bankruptcy Due to Flood of Sexual Abuse Lawsuits, Newsweek (Aug. 13, 2021, 9:42 AM), https://www.newsweek.com/4-new-york-dioceses-file-bankruptcy-due-flood-sexual-abuse-lawsuits-1619136 [https://perma.cc/‌4G67-MLMT].Show More the Boy Scouts of America,17 17.Cara Kelly, Nathan Bomey & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy in the Face of Thousands of Child Abuse Allegations, USA Today (May 18, 2020, 4:51 PM), https://www.usatoday.com/in-depth/news/investigations/2020/02/18/boy-scouts-bsa-chapter-11-bankruptcy-sexual-abuse-cases/1301187001 [https://perma.cc/M9Q7-WMH5].Show More and Purdue Pharma.18 18.Jan Hoffman & Mary Williams Walsh, Purdue Pharma, Maker of OxyContin, Files for Bankruptcy, N.Y. Times (Nov. 24, 2020), https://www.nytimes.com/2019/09/15/health/‌purdue-pharma-bankruptcy-opioids-settlement.html [https://perma.cc/7BMJ-S366].Show More Others involve onslaught litigation that may not be characterized as mass tort litigation: Bikram Yoga,19 19.Tracy Rucinski, Bikram Yoga Guru Seeks Bankruptcy in Wake of Harassment Claims, Reuters (Nov. 10, 2017, 3:55 PM), https://www.reuters.com/article/us-bikram-choudhury-yoga-bankruptcy/bikram-yoga-guru-seeks-bankruptcy-in-wake-of-harassment-claims-idUSKBN1DA2SA [https://perma.cc/9U6P-5FP2].Show More the Weinstein Companies,20 20.Brooks Barnes, Weinstein Company Files for Bankruptcy and Revokes Nondisclosure Agreements, N.Y. Times (Mar. 19, 2018), https://www.nytimes.com/2018/03/19/business/‌weinstein-company-bankruptcy.html [https://perma.cc/TE8R-MMBV].Show More USA Gymnastics,21 21.Rachel Axon, Nancy Armour & Tim Evans, USA Gymnastics Files for Bankruptcy, a Move Related to Larry Nassar’s Sexual Abuse Lawsuits, USA Today (Dec. 5, 2018, 5:40 PM), https://www.usatoday.com/story/sports/olympics/2018/12/05/usa-gymnastics-files-bankruptc‌y-nassar-lawsuits/2218546002 [https://perma.cc/3GEG-HBS3].Show More and Remington and Infowars after the Sandy Hook shooting.22 22.Sarah Jorgensen, Jason Hanna & Erica Hill, Sandy Hook Families Reach $73 Million Settlement with Gun Manufacturer Remington, CNN (Feb. 16, 2022, 5:04 AM), https://www.cnn.com/2022/02/15/us/sandy-hook-shooting-settlement-with-remington/index.‌html [https://perma.cc/BPT4-NFVJ]; Derrick Bryson Taylor, Alex Jones’s Infowars Files for Bankruptcy, N.Y. Times (Apr. 18, 2022, 5:15 PM), https://www.nytimes.com/2022/04/18/us/‌alex-jones-infowars-bankruptcy.html [https://perma.cc/2KJR-TWD3].Show More More recently, Johnson & Johnson (“J&J”) and 3M strategically placed certain of their corporate entities into bankruptcy to deal with onslaught litigation about particular products—claims that talcum powder caused cancer in hundreds of thousands of women in J&J’s case and claims that military earplugs harmed United States servicemembers in 3M’s case.23 23.Johnny Magdaleno, Major Bankruptcy Case Hits Indianapolis as Veterans Claim Combat Earplugs Were Faulty, IndyStar (Aug. 17, 2022, 7:21 AM), https://www.indystar.com/story/‌news/2022/08/16/major-bankruptcy-case-hits-indianapolis-veterans-sue-3m-subsidiary/6540‌4066007 [https://perma.cc/8KP3-5TCH]; Brian Mann, Rich Companies Are Using a Quiet Tactic to Block Lawsuits: Bankruptcy, NPR (Apr. 2, 2022, 7:00 AM), https://www.npr.org/‌2022/04/02/1082871843/rich-companies-are-using-a-quiet-tactic-to-block-lawsuits-bankrup‌tcy [https://perma.cc/R5QT-JCG6]. The Third Circuit subsequently dismissed J&J’s corporate entity’s case as a bad-faith filing. See infra note 120 and accompanying text. On April 4, 2023, J&J filed the same corporate entity in chapter 11 for a second time and, in doing so, proposed a $8.9 billion settlement. Evan Ochsner, Cancer Victims’ Lawyers Vow to Fight J&J Proposed Settlement, Bloomberg L. (Apr. 6, 2023, 1:40 PM), https://news.bloomberglaw.com/bankrupt‌cy-law/cancer-victims-lawyers-vow-to-fight-j-j-proposed-settlement [https://perma.cc/5PV‌D-XTL6]. Ralph Brubaker characterized the filing as a “rather audacious ploy.” Steven Church & Jef Feeley, J&J Begins ‘Audacious’ Return to Failed Cancer Settlement Tactic, Bloomberg L. (Apr. 5, 2023, 12:28 PM), https://news.bloomberglaw.com/bankruptcy-law/j-j-begins-audacious-return-to-failed-cancer-settlement-tactic [https://perma.cc/THA9-L7VP].Show More

Scholars have recently written about the problems inherent in using the chapter 11 process to deal with mass tort liabilities, including issues related to third-party releases, judge shopping, bypassing procedures, and the much-decried Texas Two-Step.24 24.See generally Melissa B. Jacoby, Sorting Bugs and Features of Mass Tort Bankruptcy, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 3) [hereinafter Jacoby, Sorting Bugs and Features], https://ssrn.com/abstract=4323151 [https://perma.cc/EG3B-7378] (detailing the extraordinary relief that corporations seek in bankruptcy, with a focus on mass tort bankruptcies); Jonathan C. Lipson, First in Time; First is Right: Comments on Levitin’s Poison Pill, 101 Tex. L. Rev. Online 33, 34 (2022) [hereinafter Lipson, First in Time] (discussing Adam Levitin’s article, Purdue’s Poison Pill, and third-party releases, appellate review, and venue); Ralph Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy, 131 Yale L.J.F. 960, 964–66 (2022) [hereinafter Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy] (advocating prohibiting nonconsensual third-party releases); Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. 38, 38–39 (2022) (discussing the Texas Two-Step, fraudulent transfer law, and good-faith challenges to chapter 11 filings); Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079, 1083–84 (2022) [hereinafter Levitin, Purdue’s Poison Pill] (discussing coercive restructuring techniques, lack of appellate review, and forum shopping); Samir D. Parikh, The New Mass Torts Bargain, 91 Fordham L. Rev. 447, 455 (2022) [hereinafter Parikh, The New Mass Torts Bargain] (overviewing the intersection of mass torts and bankruptcy); Samir D. Parikh, Scarlet-Lettered Bankruptcy: A Public Benefit Proposal for Mass Tort Villains, 117 Nw. U. L. Rev. 425, 429–31 (2022) [hereinafter Parikh, Scarlet-Lettered Bankruptcy] (proposing that companies facing mass torts that file bankruptcy emerge as public benefit corporations); Lindsey D. Simon, Bankruptcy Grifters, 131 Yale L.J. 1154, 1159–61 (2022) [hereinafter Simon, Bankruptcy Grifters] (detailing how and when third-party releases should be granted); Melissa B. Jacoby, Shocking Business Bankruptcy Law, 131 Yale L.J.F. 409, 411–12 (2021) [hereinafter Jacoby, Shocking Business Bankruptcy Law] (pinpointing the harms of “off-label bankruptcy” and “bankruptcy à la carte,” including third-party releases); Adam J. Levitin, The Texas Two-Step: The New Fad in Fraudulent Transfers, Credit Slips (July 19, 2021, 10:50 AM) [hereinafter Levitin, The Texas Two-Step], https://www.creditslips.org/creditslips/2021/07/the-texas-two-step.html [https://perma.cc/MUQ2-AJDQ] (detailing the mechanics of the Texas Two-Step).Show More But the role of the bankruptcy system in people losing their ability to take part in litigation and the damage to procedural justice has been given short shrift—particularly in the wider context of onslaught litigation which may or may not be categorized as arising from a mass tort. Likewise absent from discussion in the literature is the way in which denying survivors a voice in onslaught litigation reorganization cases prevents light from being shed on problems such that the company (and its owners) can cabin how much public scrutiny they face.

This Article brings those concerns to the forefront. It thereby advances the literature from a discussion of mass tort bankruptcies largely tied to bankruptcy law provisions, constitutional concerns, and a traditional view of reorganization as a monetary-value-preserving venture,25 25.A few scholars have called out and deviated from this more traditional focus. See Jacoby, Sorting Bugs and Features, supra note 24 (manuscript at 11) (emphasizing the non-economic constitutional rights of future claimants); Jonathan C. Lipson, “Special”: Remedial Schemes in Mass Tort Bankruptcies, 101 Tex. L. Rev. 1773, 1778 (2023) [hereinafter Lipson, Remedial Schemes], (assessing “what actually happened in Purdue Pharma along familiar dimensions of ‘exit,’ ‘voice,’ and ‘loyalty’” (citing John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L. Rev. 370, 376 (2000))); Lipson, Rule of the Deal, supranote 9, at 44 (interrogating questions of transparency and accountability in “social debt” bankruptcies); infra notes 299–302 and accompanying text.Show More to an examination of the direct harms to people and public trust in corporations. It also expands the discussion of chapter 11 cases filed in the wake of litigation from mass torts to the broader context of our concept of onslaught litigation. It thus links headliner chapter 11 filings from the past couple of decades with a full history of mass tort bankruptcies in a manner not yet explored, but which underscores and explicates an integral motivator of recent chapter 11 filings that have provoked outrage and calls for a reexamination of the business bankruptcy system.

To make these points—and to explain our solutions—the Article proceeds as follows. Part I overviews how a corporation would resolve onslaught litigation, with a focus on mass tort cases, outside of the bankruptcy system. Part II compares this to how corporations can manage onslaught litigation in the bankruptcy system, including tracing the evolution of chapter 11’s use to deal with mass torts from asbestos litigation through intrauterine device (“IUD”) and breast implant product liability litigation. Part III relies on three case studies—Catholic dioceses, Purdue Pharma, and Infowars and Alex Jones—to build on how the prior use of bankruptcy to deal with mass torts has created the necessary conditions to allow defendants to leverage chapter 11 to silence victims and facilitate cover-ups in a wider variety of onslaught litigation. Part IV turns to a detailed explanation of the problems—the denial of victims’ voices, the destruction of procedural justice, and the suppression of information. Part V offers solutions. Although solving bankruptcy’s silencing problem may, almost necessarily, require more costly and longer reorganization cases, we argue that such a cost is worth it for people to have a voice and for upholding the integrity of both the justice system and the corporate economy.

  1.  Jeremy Hill, ‘I Do Not Forgive You:’ Opioid Victims Address Sacklers Directly, Bloomberg (Mar. 10, 2022), https://www.bloomberg.com/news/articles/2022-03-10/sacklers-to-hear-from-opioid-victims-live-in-bankruptcy-court [https://perma.cc/2EHY-S4VW].

  2.  Id.; see also Brian Mann, For the First Time, Victims of the Opioid Crisis Formally Confront the Sackler Family, NPR (Mar. 10, 2022, 4:51 PM), https://www.npr.org/2022/‌03/10/1085174528/sackler-opioid-victims [https://perma.cc/6X8K-MRVB] (detailing the testimonies).

  3.  Hill, supra note 1.

  4.  Id.

  5.  See Mann, supra note 2 (noting the Sacklers’ lack of an apology for years during the opioid crisis).

  6.  See Pamela Foohey, A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy, 60 B.C. L. Rev. 2297, 2313–16 (2019) (discussing procedural justice); David Resnick, Due Process and Procedural Justice, in 18 Nomos 206 (J. Roland Pennock & John W. Chapman eds., 1977) (linking due process and procedural justice); infra Section IV.A.

  7.  Victor D. Quintanilla & Michael A. Yontz, Human-Centered Civil Justice Design: Procedural Justice and Process Value Pluralism, 54 Tulsa L. Rev. 113, 115, 140–41 (2018) (quoting Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights—Part I, 1973 Duke L.J. 1153, 1172).

  8.  In this Article, we generally use the term “corporation” to refer to the for-profit and nonprofit business entities that file chapter 11. Although not all businesses that have filed chapter 11 are organized as corporations, such as some of the Catholic dioceses, the majority are. For simplicity, we refer to businesses as “corporations.”

  9.  This term is inspired by the U.S. Court of Appeals for the Second Circuit’s discussion of the trust established in Johns-Manville’s chapter 11 case, which it filed to deal with mass tort litigation. Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 640 (2d Cir. 1988) (“[T]he Plan seeks to ensure that health claims can be asserted only against the Trust and that Manville’s operating entities will be protected from an onslaught of crippling lawsuits that could jeopardize the entire reorganization effort.” (emphasis added)). Jonathan Lipson recently similarly defined what he terms “social debt” bankruptcies: “Social debt is financial liability for serious (e.g., criminal) misconduct, often involving violations of health and safety laws, made unsustainable due to persistent governance failures of transparency and accountability.” Jonathan C. Lipson, The Rule of the Deal: Bankruptcy Bargains and Other Misnomers, 97 Am. Bankr. L.J. 41, 43 (2023) [hereinafter Lipson, The Rule of the Deal]. Our definition of “onslaught litigation” is broader. It focuses less on the normative qualities of the underlying harms and more on the operational and time resources, including public relations resources, that a corporation may project it will have to devote to the litigation. Onslaught litigation includes violations of health and safety laws, sexual harassment, and criminal misconduct, but also may include, for example, allegations of underpaying workers, of price fixing, or of deceptive trade practices.

  10.  Infra Sections II.C, III.B.

  11.  Mass tort litigation refers to the situation where many individuals have tort-based claims against a single or a handful or persons (or entities). See Douglas G. Smith, Resolution of Mass Tort Claims in the Bankruptcy System, 41 U.C. Davis L. Rev. 1613, 1616–26 (2008) (overviewing mass tort litigation); infra Section I.B.

  12.  See Amelia Schonbek, The Complete List of Allegations Against Harvey Weinstein, N.Y.: The Cut (Jan. 6, 2020), https://www.thecut.com/2020/01/harvey-weinstein-complete-list-allegations.html [https://perma.cc/KE2C-Z5KK] (listing allegations).

  13.  Alex Jones, Infowars, and the Sandy Hook Defamation Suits, First Amend. Watch (Dec. 2, 2022), https://firstamendmentwatch.org/deep-dive/alex-jones-infowars-and-the-sandy-hoo‌k-defamation-suits [https://perma.cc/YX2J-BTJN].

  14.  A chapter 11 filing, initially, will require a corporation to disclose more information than it would be required to disclose in civil litigation, especially given the use of protective orders. This Article is concerned with the totality of information that may be exposed via news stories about litigation and through litigation filed over decades, which a chapter 11 filing will cut off. Stated differently, corporations are trading the possibility of alleged wrongdoings circulating in the public for decades (or longer) for chapter 11’s immediate, short-term, and predictable information disclosure.

  15.  See infra Part II for an overview of chapter 11 as applied to onslaught litigation.

  16.  Rebecca Klapper, 4 New York Dioceses File for Bankruptcy Due to Flood of Sexual Abuse Lawsuits, Newsweek (Aug. 13, 2021, 9:42 AM), https://www.newsweek.com/4-new-york-dioceses-file-bankruptcy-due-flood-sexual-abuse-lawsuits-1619136 [https://perma.cc/‌4G67-MLMT].

  17.  Cara Kelly, Nathan Bomey & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy in the Face of Thousands of Child Abuse Allegations, USA Today (May 18, 2020, 4:51 PM), https://www.usatoday.com/in-depth/news/investigations/2020/02/18/boy-scouts-bsa-chapter-11-bankruptcy-sexual-abuse-cases/1301187001 [https://perma.cc/M9Q7-WMH5].

  18.  Jan Hoffman & Mary Williams Walsh, Purdue Pharma, Maker of OxyContin, Files for Bankruptcy, N.Y. Times (Nov. 24, 2020), https://www.nytimes.com/2019/09/15/health/‌purdue-pharma-bankruptcy-opioids-settlement.html [https://perma.cc/7BMJ-S366].

  19.  Tracy Rucinski, Bikram Yoga Guru Seeks Bankruptcy in Wake of Harassment Claims, Reuters (Nov. 10, 2017, 3:55 PM), https://www.reuters.com/article/us-bikram-choudhury-yoga-bankruptcy/bikram-yoga-guru-seeks-bankruptcy-in-wake-of-harassment-claims-idUSKBN1DA2SA [https://perma.cc/9U6P-5FP2].

  20.  Brooks Barnes, Weinstein Company Files for Bankruptcy and Revokes Nondisclosure Agreements, N.Y. Times (Mar. 19, 2018), https://www.nytimes.com/2018/03/19/business/‌weinstein-company-bankruptcy.html [https://perma.cc/TE8R-MMBV].

  21.  Rachel Axon, Nancy Armour & Tim Evans, USA Gymnastics Files for Bankruptcy, a Move Related to Larry Nassar’s Sexual Abuse Lawsuits, USA Today (Dec. 5, 2018, 5:40 PM), https://www.usatoday.com/story/sports/olympics/2018/12/05/usa-gymnastics-files-bankruptc‌y-nassar-lawsuits/2218546002 [https://perma.cc/3GEG-HBS3].

  22.  Sarah Jorgensen, Jason Hanna & Erica Hill, Sandy Hook Families Reach $73 Million Settlement with Gun Manufacturer Remington, CNN (Feb. 16, 2022, 5:04 AM), https://www.cnn.com/2022/02/15/us/sandy-hook-shooting-settlement-with-remington/index.‌html [https://perma.cc/BPT4-NFVJ]; Derrick Bryson Taylor, Alex Jones’s Infowars Files for Bankruptcy, N.Y. Times (Apr. 18, 2022, 5:15 PM), https://www.nytimes.com/2022/04/18/us/‌alex-jones-infowars-bankruptcy.html [https://perma.cc/2KJR-TWD3].

  23.  Johnny Magdaleno, Major Bankruptcy Case Hits Indianapolis as Veterans Claim Combat Earplugs Were Faulty, IndyStar (Aug. 17, 2022, 7:21 AM), https://www.indystar.com/story/‌news/2022/08/16/major-bankruptcy-case-hits-indianapolis-veterans-sue-3m-subsidiary/6540‌4066007 [https://perma.cc/8KP3-5TCH]; Brian Mann, Rich Companies Are Using a Quiet Tactic to Block Lawsuits: Bankruptcy, NPR (Apr. 2, 2022, 7:00 AM), https://www.npr.org/‌2022/04/02/1082871843/rich-companies-are-using-a-quiet-tactic-to-block-lawsuits-bankrup‌tcy [https://perma.cc/R5QT-JCG6]. The Third Circuit subsequently dismissed J&J’s corporate entity’s case as a bad-faith filing. See infra note 120 and accompanying text. On April 4, 2023, J&J filed the same corporate entity in chapter 11 for a second time and, in doing so, proposed a $8.9 billion settlement. Evan Ochsner, Cancer Victims’ Lawyers Vow to Fight J&J Proposed Settlement, Bloomberg L. (Apr. 6, 2023, 1:40 PM), https://news.bloomberglaw.com/bankrupt‌cy-law/cancer-victims-lawyers-vow-to-fight-j-j-proposed-settlement [https://perma.cc/5PV‌D-XTL6]. Ralph Brubaker characterized the filing as a “rather audacious ploy.” Steven Church & Jef Feeley, J&J Begins ‘Audacious’ Return to Failed Cancer Settlement Tactic, Bloomberg L. (Apr. 5, 2023, 12:28 PM), https://news.bloomberglaw.com/bankruptcy-law/j-j-begins-audacious-return-to-failed-cancer-settlement-tactic [https://perma.cc/THA9-L7VP].

  24.  See generally Melissa B. Jacoby, Sorting Bugs and Features of Mass Tort Bankruptcy, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 3) [hereinafter Jacoby, Sorting Bugs and Features], https://ssrn.com/abstract=4323151 [https://perma.cc/EG3B-7378] (detailing the extraordinary relief that corporations seek in bankruptcy, with a focus on mass tort bankruptcies); Jonathan C. Lipson, First in Time; First is Right: Comments on Levitin’s Poison Pill, 101 Tex. L. Rev. Online 33, 34 (2022) [hereinafter Lipson, First in Time] (discussing Adam Levitin’s article, Purdue’s Poison Pill, and third-party releases, appellate review, and venue); Ralph Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy, 131 Yale L.J.F. 960, 964–66 (2022) [hereinafter Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy] (advocating prohibiting nonconsensual third-party releases); Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. 38, 38–39 (2022) (discussing the Texas Two-Step, fraudulent transfer law, and good-faith challenges to chapter 11 filings); Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079, 1083–84 (2022) [hereinafter Levitin, Purdue’s Poison Pill] (discussing coercive restructuring techniques, lack of appellate review, and forum shopping); Samir D. Parikh, The New Mass Torts Bargain, 91 Fordham L. Rev. 447, 455 (2022) [hereinafter Parikh, The New Mass Torts Bargain] (overviewing the intersection of mass torts and bankruptcy); Samir D. Parikh, Scarlet-Lettered Bankruptcy: A Public Benefit Proposal for Mass Tort Villains, 117 Nw. U. L. Rev. 425, 429–31 (2022) [hereinafter Parikh, Scarlet-Lettered Bankruptcy] (proposing that companies facing mass torts that file bankruptcy emerge as public benefit corporations); Lindsey D. Simon, Bankruptcy Grifters, 131 Yale L.J. 1154, 1159–61 (2022) [hereinafter Simon, Bankruptcy Grifters] (detailing how and when third-party releases should be granted); Melissa B. Jacoby, Shocking Business Bankruptcy Law, 131 Yale L.J.F. 409, 411–12 (2021) [hereinafter Jacoby, Shocking Business Bankruptcy Law] (pinpointing the harms of “off-label bankruptcy” and “bankruptcy à la carte,” including third-party releases); Adam J. Levitin, The Texas Two-Step: The New Fad in Fraudulent Transfers, Credit Slips (July 19, 2021, 10:50 AM) [hereinafter Levitin, The Texas Two-Step], https://www.creditslips.org/creditslips/2021/07/the-texas-two-step.html [https://perma.cc/MUQ2-AJDQ] (detailing the mechanics of the Texas Two-Step).

  25.  A few scholars have called out and deviated from this more traditional focus. See Jacoby, Sorting Bugs and Features, supra note 24 (manuscript at 11) (emphasizing the non-economic constitutional rights of future claimants); Jonathan C. Lipson, “Special”: Remedial Schemes in Mass Tort Bankruptcies, 101 Tex. L. Rev. 1773, 1778 (2023) [hereinafter Lipson, Remedial Schemes], (assessing “what actually happened in Purdue Pharma along familiar dimensions of ‘exit,’ ‘voice,’ and ‘loyalty’” (citing John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L. Rev. 370, 376 (2000))); Lipson, Rule of the Deal, supra note 9, at 44 (interrogating questions of transparency and accountability in “social debt” bankruptcies); infra notes 299–302 and accompanying text.