Article - Virginia Law Review

Taxing Nudges

Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often produce significant responses at a low cost. The theory behind nudges is that, rather than mandating certain behaviors or providing costly economic subsidies, modest initiatives may “nudge” individuals to choose desirable outcomes by appealing to their behavioral preferences. For example, automatically enrolling workers into savings plans as a default, rather than requiring them to actively sign up, has dramatically increased enrollment in such plans. Similarly, allowing individuals to earn “wellness points” from attendance at a gym, redeemable at various retail establishments, may improve exercise habits.

A successful nudge should make a desired choice as simple and painless as possible. Yet one source of friction may counteract an otherwise well-designed nudge: taxation. Under current tax laws, certain incentives designed to nudge behavior are treated as taxable income. At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.

This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It describes the emergence of a disjointed tax regime that exempts private party nudges, but taxes identical incentives that come from the government. What is more, an incentive structured as a government grant may be taxable while an economically identical tax credit is not. The Article then proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. Specifically, lawmakers should reverse the default rule that all government transfers are taxable, and instead exclude government transfers from income unless otherwise provided by the Tax Code.

Introduction

Imagine that every ten years, a flood decimates the banks of a river, destroying homes and other buildings in its wake. Each time, the flood causes millions of dollars of damage and leaves some people homeless or jobless. The local government incurs enormous costs in the aftermath to clean up damage and provide subsidies to victims.

Now imagine that experts determine that a measure can be taken to “flood proof” homes and other buildings. The measure costs several thousand dollars per building, but this pales in comparison to the cost of cleaning up flood damage. Naturally, policymakers would be eager to encourage residents along the riverbank to undertake the improvements. But people tend to be present-biased and discount future harms, and the residents are unmotivated to make the improvements.¹1.See infra Subsection I.B.6.Show More What can policymakers do?

One option would be to mandate flood proofing and penalize those who do not do it. But this would be politically unpopular and entail enforcement costs. Another option would be simply to pay for the flood proofing for each resident; but this may be cost prohibitive.

There may be a third option, however. Suppose that lawmakers decide to offer a small carrot—a “nudge”—to encourage people to flood proof their homes. They might, for example, offer a modest cash reward—say $300—for doing so. Or they might offer to provide a warranty for any flood damage incurred after the improvement is made. The small nudge may be enough to motivate people to flood proof their homes. If the nudge is effective, the government might succeed in protecting its residents’ homes at a fraction of the cost of using penalties or paying for the improvements outright.

Nudges are an increasingly popular policy tool in many contexts. Insights from behavioral economics reveal that people’s irrational tendencies may lead them to make suboptimal decisions, such as failing to flood proof their homes, opting not to save for retirement, or not applying to college. For example, people’s failure to save for retirement is often just due to sheer inaction—what researchers call “status quo bias,” ²2.See infra note 15 and accompanying text.Show More rather than any rational decision about how to spend one’s money. Making retirement savings easier by defaulting people into savings plans is an example of a simple nudge that achieves a desired policy at a low cost.

The term “nudge” was famously coined by Professors Richard Thaler and Cass Sunstein to describe an intervention that “alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives.”³3.Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 6 (2d ed. 2009).Show More Nudges might make a desired choice easier or simpler for people, they might help people overcome bad habits like procrastination, or they may simply provide people with better information.⁴4.Cass R. Sunstein, Misconceptions About Nudges, 2 J. Behav. Econ. for Pol’y 61, 61 (2018).Show More Governments around the world have increasingly used nudges to enact cost-effective policies to improve the welfare of their citizens.

Nudges come in many forms: shifting defaults, like in the case of savings plans; sending people text message reminders to apply for college financial aid; or simplifying instructions on forms. Other nudges provide small incentives, like cash rewards or “wellness points” one might earn for achieving health goals. Regardless of the form of a particular nudge, it should make a desired choice as simple and painless as possible.

Yet one source of friction may counteract an otherwise well-designed nudge: taxation.

Under current tax laws, certain incentives aimed at nudging behavior are treated as taxable income. While nudges like defaults or text message reminders do not have tax consequences, nudges that provide an economic benefit to the recipient may be taxable. This is true regardless of whether the benefit comes in the form of cash, property, or services. For example, if a local government offers its citizens a $300 reward for flood proofing their homes, that grant would be subject to federal income taxation.

At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. It may be particularly counterintuitive to people that government grants would be subject to tax. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. For example, homeowners may decide to forego a cash reward for flood proofing their home because they do not want to deal with the hassle of reporting it or because they do not want to attract scrutiny from the IRS. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.

This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It first describes the emergence of a disjointed tax regime that often exempts nudges that come from private parties, but taxes identical incentives that come from the government. As a default, the tax law generally treats all economic benefits as taxable income. However, broad exceptions exist for certain incentives provided by employers to their employees, which are often classified as nontaxable fringe benefits. Similarly, incentives paid by nonprofits to individuals are likely to be treated as nontaxable gifts. Nudges provided by businesses to paying customers are also exempt from tax under the judicially created “purchase price adjustment” doctrine.

When it comes to identical incentives provided by governments, however, none of the fringe benefit, gift, or purchase price adjustment exclusions apply. Furthermore, while many government transfers are exempt from tax under other exclusions—for example, welfare assistance, veterans’ benefits, Social Security, and Medicare—those rules do not cover most nudges. Without a special exclusion, incentive-based nudges provided by governments are generally subject to tax under current laws. This regime does not appear to be a product of design, but is more likely the result of a piecemeal system of tax exemptions that has developed over time. Perhaps even more confounding is that an incentive structured as a government grant may be taxable, while an economically identical tax credit is not.

After examining the tax treatment of the most common types of nudges, this Article proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. It argues that lawmakers should reverse the default rule that all government transfers are taxable, and instead provide a rule that government transfers are excluded from income unless otherwise provided by the Tax Code. This would ensure that nudges designed to promote worthy policy goals would be exempt from tax as a default matter, unless Congress specifically decides otherwise. As an alternative to this broad proposal, the Article also proposes legislation that would exempt specific nudges from tax in the areas of health and environmental protection. Under either approach, exempting nudges from tax will make them more effective and should not pose serious revenue consequences.

This Article proceeds in four parts. Part I describes the concept of a nudge and categorizes the most common types of nudges. Part II provides an overview of the tax system and discusses the current tax treatment of nudges. Part III discusses policy implications of the current tax regime, including proposals to reform the tax treatment of nudges. Part IV concludes that the simplest, yet most effective, way to unify the tax treatment of nudges would be for Congress to provide a default of nontaxability for government transfers.

* George R. Ward Term Professor of Law, University of North Carolina School of Law. I am grateful to Andrew Benton for excellent research assistance, and to helpful comments from Ellen Aprill, Peter Barnes, Fred Bloom, Michelle Drumbl, Heather Field, Brian Galle, Brant Hellwig, Andy Hessick, Carissa Hessick, Ed McCaffery, Pat Oglesby, Leigh Osofsky, Gregg Polsky, Katie Pratt, Rich Schmalbeck, Ted Seto, Jay Soled, Sloan Speck, Manoj Viswanathan, Larry Zelenak and workshop participants at University of Colorado Law School, Duke Law School, Loyola Law School, Washington & Lee University School of Law, and UC Hastings College of Law. For Tessie DeLaney. ↑
See infra Subsection I.B.6. ↑
See infra note 15 and accompanying text. ↑
Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 6 (2d ed. 2009). ↑
Cass R. Sunstein, Misconceptions About Nudges, 2 J. Behav. Econ. for Pol’y 61, 61 (2018). ↑
See, e.g., George Loewenstein & Nick Chater, Putting Nudges in Perspective, 1 Behav. Pub. Pol’y. 26, 29 (2017) (“Traditional economic interventions include taxes, subsidies and mandatory disclosure of information . . . .”). ↑
See, e.g., David Halpern, Inside the Nudge Unit: How Small Changes Can Make a Big Difference 4 (2015). ↑
See, e.g., Bruno S. Frey, A Constitution for Knaves Crowds Out Civic Virtues, 107 Econ. J. 1043, 1044–45 (1997). ↑
Cass R. Sunstein, Nudging: A Very Short Guide, 37 J. Consumer Pol’y 583, 583 (2014) (Nudges “generally cost little and have the potential to promote economic and other goals . . . .”). ↑
Halpern, supra note 6, at 22. ↑
Brian Galle argues that, in some circumstances, nudges are the most efficient choice of instrument. See Brian Galle, The Problem of Intrapersonal Cost, 18 Yale J. Health Pol’y, L., & Ethics 1, 32–50 (2018). ↑
Sunstein, supra note 8, at 585. However, for a critique of savings defaults, see Ryan Bubb & Richard H. Pildes, How Behavioral Economics Trims Its Sails and Why, 127 Harv. L. Rev. 1593, 1607–37 (2014). ↑
Thaler & Sunstein, supra note 3, at 110–11. ↑
Id. at 111. ↑
See, e.g., id. at 111–13 (automatic enrollment increased employee participation in savings plans from 65% to 90%, and could notably increase per-capita contribution percentages); Loewenstein & Chater, supra note 5, at 27. ↑
Daniel Kahneman, Jack Knetsch & Richard Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Persp. 193, 197–98 (1991). ↑
See About SBST, SBST, https://sbst.gov/#report [https://perma.cc/S3YM-35MC] (last visited June 14, 2019). ↑
William J. Congdon & Maya Shankar, The White House Social & Behavioral Sciences Team: Lessons Learned from Year One, 1 Behav. Sci. & Pol’y 77, 83 (2015), https://behavioralpolicy.org/wp-content/uploads/2017/05/BSP_vol1is2_Congdon.pdf [https://perma.cc/EXF9-RWMV]. ↑
Id. ↑
See About Us, Behavioural Insights Team, https://www.bi.team/about-us/ [https://perma.cc/6BUF-95PA] (last visited Nov. 7, 2020) (“We have run more than 750 projects to date, including 400 randomised controlled trials in dozens of countries.”). ↑
See Christopher Larkin, Michael Sanders, Isabelle Andresen & Felicity Algate, Testing Local Descriptive Norms and Salience of Enforcement Action: A Field Experiment to Increase Tax Collection, 2 J. Behav. Pub. Admin. 1, 9–10 (2019); Dominic King et al., Redesigning the “Choice Architecture” of Hospital Prescription Charts: A Mixed Methods Study Incorporating In Situ Simulation Testing, 4 BMJ Open 1, 8–9 (2014); Peter John, Elizabeth MacDonald & Michael Sanders, Targeting Voter Registration with Incentives: A Randomized Controlled Trial of a Lottery in a London Borough, 40 Electoral Stud. 170, 175 (2015). ↑
See Zeina Afif, William Wade Islan, Oscar Calvo-Gonzalez & Abigail Goodnow Dalton, World Bank Group, Behavioral Science Around the World: Profiles of 10 Countries 6 (2019), http://documents.worldbank.org/curated/en/710771543609067500/pdf/132610-REVISED-00-COUNTRY-PROFILES-dig.pdf [https://perma.cc/JDX2-R9UK]. ↑
See, e.g., Congdon & Shankar, supra note 17, at 84 (finding that letters sent to physicians comparing their prescribing rates with those of their peers had no measurable impact on prescription rates). ↑
See Afif et al., supra note 21, at 8–9. ↑
See, e.g., Thaler & Sunstein, supra note 3, at 12, 85. ↑
See, e.g., Johan Egebark & Mathias Ekström, Can Indifference Make the World Greener? 11–13 (Rsch. Inst. of Indus. Econ., IFN Working Paper No. 975, 2013). ↑
Eric J. Johnson & Daniel Goldstein, Do Defaults Save Lives? 302 Science 1338, 1338–39 (2003). ↑
See, e.g., Sunstein, supra note 8, at 585. ↑
Eric P. Bettinger, Bridget Terry Long, Philip Oreopoulos & Lisa Sanbonmatsu, The Role of Simplification and Information in College Decisions: Results from the H&R Block FAFSA Experiment 1 (Nat’l Bureau of Econ. Rsch., Working Paper No. 15361, 2009), https://www.nber.org/papers/w15361.pdf [https://perma.cc/XBV6-DL2U]. ↑
Id. at 26–27. ↑
Cass R. Sunstein, Empirically Informed Regulation, 78 U. Chi. L. Rev. 1349, 1372–73 (2011). ↑
Id. at 1373. ↑
See, e.g., New Text Message Reminders for Summons Recipients Improves Attendance in Court and Dramatically Cuts Warrants, Ideas42, https://www.ideas42.org/new-text-message-reminders-summons-recipients-improves-attendance-court-dramatically-cuts-warrants/ [https://perma.cc/5SMM-PPFH] (last visited June. 17, 2019) (finding that text message reminders in New York City reduced “failure to appear” rates by 26%). ↑
See Congdon & Shankar, supra note 17, at 83. ↑
See, e.g., Raj Chetty, Adam Looney & Kory Kroft, Salience and Taxation: Theory and Evidence, 99 Am. Econ. Rev. 1145, 1165 (2009). ↑
Lisa L. Shu, Nina Mazar, Francesca Gino, Dan Ariely & Max H. Bazerman, Signing at the Beginning Makes Ethics Salient and Decreases Dishonest Self-Reports in Comparison to Signing at the End, 109 Proc. Nat’l Acad. Sci. 15197, 15197–98 (2012), http://www.pnas.org/content/109/38/15197.full.pdf+html [https://perma.cc/436E-DGL2] ↑
Id. at 15198. ↑
See, e.g., Sunstein, supra note 30, at 1381; Kate Phillips, Applying Behavioral Science Upstream in the Policy Design Process, Behav. Scientist (Sept. 17, 2018), https://behavioralscientist.org/applying-behavioral-science-upstream-in-the-policy-design-process/ [https://perma.cc/UWJ5-BBC7] (describing new laws implemented in Australia, requiring graphic images on cigarette labels, to reduce smoking rates). ↑
Michael Hallsworth, John A. List, Robert D. Metcalfe & Ivo Vlaev, The Behavioralist as Tax Collector: Using Natural Field Experiments to Enhance Tax Compliance 4 (Nat’l Bureau of Econ. Research, Working Paper No. 20007, 2014), https://www.nber.org/papers/w20007 [https://perma.cc/W7LN-F2T2]. ↑
Hunt Allcott, Social Norms and Energy Conservation, 95 J. Pub. Econ. 1082, 1082–83 (2011). ↑
Sunstein, supra note 4, at 61 (distinguishing between nudges, which “must preserve freedom of choice,” and subsidies or other interventions, which “impose[] significant material costs on choosers”). ↑
This is assuming economically rational decision making on behalf of the homeowner, without factoring in other (realistic) costs, such as hassle costs and present bias. ↑
Sunstein, supra note 4, at 61. ↑
See Robert Münscher, Max Vetter & Thomas Scheuerle, A Review and Taxonomy of Choice Architecture Techniques, 29 J. Behav. Decision Making 511, 518 (2016) (defining micro-incentives as “changes of the consequences of decision options that are insignificant from a rational choice perspective”). ↑
Id. ↑
The small size of the payment makes it particularly less likely to function as a true subsidy, although it could. For example, if paying for bus fare to a local clinic was the impediment to a person obtaining a free flu shot, the $5 may operate as an economic subsidy free of behavioral considerations. For further discussion of the distinction between nudges and subsidies, see Brian Galle, Tax, Command . . . or Nudge?: Evaluating the New Regulation, 92 Tex. L. Rev. 837, 854–56 (2014) (explaining that “surprising and asymmetric incentives” are one factor distinguishing nudges from subsidies, and using a five-cent tax on plastic bags as an example of a financial consequence that is most likely a nudge, given that alternatives are generally more costly than the bag tax). ↑
Bronwyn McGill, Blythe J. O’Hara, Anne C. Grunseit & Philayrath Phongsavan, Are Financial Incentives for Lifestyle Behavior Change Informed or Inspired by Behavioral Economics? A Mapping Review, 33 Am. J. Health Promotion 131, 131 (2019) (“Since the 1960s, financial incentives (FIs) have been used in behavior change interventions, targeting a broad spectrum of health issues such as blood donation, medication adherence, and health and wellness programs.”). ↑
Soeren Mattke et al., Workplace Wellness Programs Study: Final Report, at xiv (Rand Corp. ed. 2013); see also Laura A Linnan, Laurie Cluff, Jason E. Lang, Michael Penne & Maija S. Leff, Results of the Workplace Health in America Survey, 3 Am. J. Health Promotion 652, 655 (2019) (over 46% of worksites surveyed had wellness programs). ↑
See Ha T. Tu & Ralph C. Mayrell, Employer Wellness Initiatives Grow, But Effectiveness Varies Widely, Nat’l Inst. for Health Care Reform, July 2010, at 2 (concluding that employers offer wellness programs to contain medical costs, to improve productivity, and to “position themselves as ‘employers of choice’”). ↑
Id. ↑
Id. at 2–3. ↑
Id. at 3–4. ↑
Mattke et al., supra note 47, at xv. ↑
Tu & Mayrell, supra note 48, at 5; Bahaudin G. Mujtaba & Frank J. Cavico, Corporate Wellness Programs: Implementation Challenges in the Modern American Workplace, 1 Int’l J. Health Pol’y & Mgmt. 193, 194 (2013) (mentioning gym reimbursements as a part of corporate wellness programs). ↑
See, e.g., Mujtaba & Cavico, supra note 53, at 194 (listing seminars as a part of corporate wellness programs). ↑
These wellness program incentives are regulated by several laws. For example, the Health Insurance Portability and Accountability Act (“HIPAA”) imposes multiple nondiscrimination requirements. See Tu & Mayrell, supra note 48, at 6. ↑
Mattke et al., supra note 47, at 73 fig.5.3. ↑
Tu & Mayrell, supra note 48, at 5; see also Mujtaba & Cavico, supra note 53, at 196 (referencing “[h]ealth insurance discounts and reimbursements for employees who meet health standards and maintain a healthy lifestyle”). ↑
One report found that “[m]ost benefits consultants and wellness vendors believed that $100 is the ‘sweet spot’ for an incentive for a ‘single instance of behavior,’ such as HRA completion or participation in a specific wellness activity.” See Tu & Mayrell, supra note 48, at 5. ↑
John Cawley & Joshua A. Price, A Case Study of a Workplace Wellness Program That Offers Financial Incentives for Weight Loss, 32 J. Health Econ. 794, 795 (2013). ↑
Mattke et al., supra note 47, at xxi. ↑
But see Katherine Pratt, A Constructive Critique of Public Health Arguments for Anti-Obesity Soda Taxes and Food Taxes, 87 Tul. L. Rev. 73, 77–94 (2012) (discussing economic, externality-based justifications for anti-obesity taxes and subsidies). ↑
Present bias describes the tendency to value immediate rewards over future rewards, even if the future rewards are larger. See, e.g., Richard Thaler, Some Empirical Evidence on Dynamic Inconsistency, 8 Econ. Letters 201, 201 (1981). In the context of weight loss, it is hard for people to forego immediate benefits (a tasty meal, for example) in exchange for a future benefit (lower weight). ↑
See Cawley & Price, supra note 59, at 794 (“[P]eople may want to do what is in their long-run interest (lose weight), but consistently succumb to the temptation to eat and be sedentary.”). ↑
Id. ↑
Tu & Mayrell, supra note 48, at 5. ↑
Id. ↑
Sahil Gupta, Opinion, Earning Prizes for Fighting an Addiction, N.Y. Times (Mar. 12, 2019), https://www.nytimes.com/2019/03/12/opinion/earning-prizes-for-fighting-an-addiction.html [https://perma.cc/58CN-DT45]. ↑
Id. ↑
Id. ↑
Id. ↑
Scott D. Halpern et al., Randomized Trial of Four Financial-Incentive Programs for Smoking Cessation, 372 N. Eng. J. Med. 2108, 2108 (2015). Another intervention explored in the study was a deposit program in which participants would put up their own funds and earn them back if they successfully quit. Although the deposit was very effective for those who chose it, the cash incentive was more successful overall at reducing smoking, because significantly more participants opted for the cash intervention over the deposit. Id. at 2114. ↑
See, e.g., Kevin G. Volpp et al., A Randomized, Controlled Trial of Financial Incentives for Smoking Cessation, 360 New Eng. J. Med. 699, 707 (2009) (finding that a group who received financial incentives to refrain from smoking had “significantly higher” rates of “prolonged abstinence” than did a control group, who did not receive the same incentives). ↑
See, e.g., Jody Sindelar, Opinion, Should We Pay People to Stop Smoking?, CNN (Oct. 5, 2011), https://www.cnn.com/2011/10/05/opinion/sindelar-smoking-medicaid/index.html [https://perma.cc/C3Y6-39H8]. ↑
Thaler & Sunstein, supra note 3, at 236. ↑
Joshua Rhett Miller, North Carolina Program Pays Girls a Dollar a Day Not to Get Pregnant, Fox News (June 25, 2009), https://www.foxnews.com/story/north-carolina-program-pays-girls-a-dollar-a-day-not-to-get-pregnant [https://perma.cc/L6JJ-7CVW]. The payment was contingent on attending a ninety-minute lesson each week, where the women learned about abstinence and contraception use. Id. ↑
Id. ↑
Dyan Zaslowsky, Denver Program Curbs Teen-Agers’ Pregnancy, N.Y. Times, Jan. 16, 1989, at A8. ↑
Economic Incentives, Environmental Protection Agency, https://www.epa.gov/‌environmental-economics/economic-incentives [https://perma.cc/UCT5-4JJB] (last visited Dec. 21, 2020) (explaining that market-based incentives, like taxes and subsidies, are “becoming increasingly popular as tools for addressing a wide range of environmental issues”). ↑
Christian Schubert, Green Nudges: Do They Work? Are They Ethical?, 132 Ecological Econ. 329, 329 (2017). ↑
See Howard Kunreuther & Elke U. Weber, Aiding Decision Making to Reduce the Impacts of Climate Change, 37 J. Consumer Pol’y 397, 397–98 (2014). ↑
See, e.g., Schubert, supra note 79, at 330 (defining green nudges as “nudges that aim at promoting environmentally benign behavior”). ↑
Id. ↑
See Hunt Allcott & Dmitry Taubinsky, Evaluating Behaviorally Motivated Policy: Experimental Evidence from the Lightbulb Market, 105 Am. Econ. Rev. 2501, 2501–02 (2015) (exploring the phenomenon and finding that moderate subsidies for energy-efficient lightbulbs may be effective in addressing this underinvestment). ↑
Free LED Program, Duke Energy, https://www.duke-energy.com/home/products/free-leds [https://perma.cc/FY93-D5L5] (last visited June 19, 2019); see also Commercial Retrofit, Puget Sound Energy, https://www.pse.com/rebates/business-incentives/commercial-retrofit-grants [https://perma.cc/R578-FS72] (last visited July 5, 2019) (providing coverage for up to 70% of the cost for energy efficient upgrades). ↑
Smart $aver: Home Improvement Rebate Program, Duke Energy, https://www.duke-energy.com/home/products/smart-saver [https://perma.cc/GAT6-GC5L] (last visited June 19, 2019). ↑
HVAC Install, Duke Energy, https://www.duke-energy.com/home/products/smart-saver/hvac-install [https://perma.cc/BE7P-YTJQ] (last visited June 19, 2019). ↑
Insulate & Seal, Duke Energy, https://www.duke-energy.com/home/products/smart-saver/insulate-and-seal [https://perma.cc/RC5K-V89W] (last visited June 19, 2019). ↑
Toshio Fujimi & Hirokazu Tatano, Promoting Seismic Retrofit Implementation Through “Nudge”: Using Warranty as a Driver, 33 Risk Analysis 1858, 1873 (2013). ↑
See id. at 1859–60. ↑
Id. at 1863. ↑
Id. at 1859. ↑
Id. at 1873. ↑
See supra note 62. ↑
See Kathleen DeLaney Thomas, The Modern Case for Withholding, 53 U.C. Davis L. Rev. 81, 124 (2019). ↑
See id. at 114. ↑
See Loewenstein & Chater, supra note 5, at 29–30. ↑
See Fujimi & Tatano, supra note 88, at 1872. ↑
Earthquake Brace + Bolt, https://www.earthquakebracebolt.com [https://perma.cc/‌5WPS-7X73] (last visited June 20, 2019). ↑
See, e.g., Cesarini v. United States, 296 F. Supp. 3, 4 (N.D. Ohio 1969) (“The starting point in determining whether an item is to be included in gross income is, of course, Section 61(a) of Title 26 U.S.C.”). ↑
I.R.C. § 61(a). The statute goes on to provide a non-exclusive list of items of gross income, such as compensation for services, interest, rents, royalties, and dividends. Id. ↑
348 U.S. 426, 431 (1955). ↑
See, e.g., Cesarini, 296 F. Supp. at 4 (holding that cash found in a used piano constituted taxable income under I.R.C. § 61(a)); Turner v. Comm’r, 13 T.C.M. 462, 463 (1954) (holding that cruise tickets received as a prize from a radio station constituted taxable income, with the only issue being valuation); see also Treas. Reg. § 1.61-14 (as amended in 1993) (expanding § 61(a) definition of gross income to include illegal gains and treasure troves, while clarifying that “[i]n addition to the items enumerated in section 61(a), there are many other kinds of gross income”). ↑
See I.R.C. § 74 (a). ↑
See Topic No. 420 Bartering Income, IRS, https://www.irs.gov/taxtopics/tc420 [https://perma.cc/4XMQ-EASH] (last visited June 20, 2019). ↑
The discussion omits other exclusions not relevant for this purpose, such as the non-taxation of imputed income under the Code, the realization requirement (§ 1001), and statutory exclusions like § 101 (life insurance proceeds) and § 103 (interest on state and local bonds). ↑
I.R.C. § 102. ↑
363 U.S. 278, 285 (1960). ↑
Id. ↑
Id. at 280, 291–92 (The transfer was “at bottom a recompense for Duberstein’s past services, or an inducement for him to be of further service in the future.”). ↑
Specifically, Code section 139 and the general welfare doctrine, both of which are discussed below. Rev. Rul. 2003-12, 2003-1 C.B. 283–84. ↑
Rev. Rul. 2005-46, 2005-2 C.B. 120. ↑
See, e.g., Rev. Rul. 2003-12, supra note 110, at 283. ↑
The exception is that certain employee achievement awards are excludable under I.R.C§ 74(c) (2018). ↑
Rev. Rul. 2003-12, supra note 110, at 284–85. ↑
Id. at 283–84. ↑
Rev. Rul. 99-44, 1999-44 I.R.B. 549–50. The matching contributions were gifts even though the savings accounts were established pursuant to a federal government program, which was administered by the charitable organization. ↑
See I.R.S. Priv. Ltr. Rul. 200442023 (Oct. 15, 2004). ↑
I.R.S. Priv. Ltr. Rul. 200529004 (July 22, 2005). Although payments from charities to individuals are likely to receive gift treatment in most situations, the Duberstein standard must still be satisfied for the gift exclusion to apply. For example, the IRS has stated in informal guidance that if a charity makes a payment to a for-profit business, “[t]he IRS will evaluate whether . . . . the payment was made out of a moral or legal obligation, an anticipated economic benefit or in return for services . . . .” Internal Revenue Service, Disaster Relief20, https://www.irs.gov/pub/irs-pdf/p3833.pdf [https://perma.cc/CQ2W-R83D]. Generally, payments made to individuals that are part of a “charitable class” (i.e., “large enough or sufficiently indefinite that the community as a whole, rather than a pre-selected group of people, benefits when a charity provides assistance”) should qualify for gift treatment. Id. at 9. I am grateful to Ellen Aprill for bringing this limitation to my attention. ↑
See, e.g., I.R.C. § 132. ↑
See Jay A. Soled & Kathleen DeLaney Thomas, Revisiting the Taxation of Fringe Benefits, 91 Wash. L. Rev. 761, 770 (2016). ↑
See id. at 766–68. ↑
Id. at 769–70. ↑
I.R.C. § 132(d), (e). ↑
See Soled & Thomas, supra note 120, at 770. ↑
However, if an employee is a shareholder or owner of the employer, payments made to employees may be treated as dividends rather than as compensation. See, e.g., Andrew W. Stumpff, The Reasonable Compensation Rule, 19 Va. Tax. Rev. 371, 377 (1999). ↑
I.R.C. § 132(a)(4), (e). ↑
In a similar context but outside the employment setting, a court allowed for exclusion of an all-expenses-paid business trip to Germany because the payment was made for the convenience of the payer, rather than for the recipient’s benefit. United States v. Gotcher, 401 F.2d 118, 119, 122 (5th Cir. 1968). Neither courts nor the IRS have explicitly extended the line of reasoning in Gotcher to other settings, particularly to non-business settings. However, the line of reasoning in the case could arguably apply to exclude many nudges from income. The argument would be that payments made primarily for the payer’s benefit (e.g., a government grant program) are not taxable income to the payee. Thanks to Ted Seto for this observation. ↑
See, e.g., Pittsburgh Milk Co. v. Comm’r, 26 T.C. 707, 717 (1956); Freedom Newspapers, Inc. v. Comm’r, 36 T.C.M. (CCH) 1755, 1758–59 (1977); Rev. Rul. 76-96, 1976-1 C.B. 23. ↑
See Rev. Rul. 76-96, 1976-1 C.B. 23. The taxpayer must reduce his basis in the property purchased by the amount of the rebate, resulting in a basis of $19,000 in this example. ↑
Freedom Newspapers, 36 T.C.M. (CCH) at 1756–57. But see I.R.S. Priv. Ltr. Rul. 201004005 (Jan. 29, 2010) (ruling that grants paid by a third party were not excludable from income, even when the net effect was to reduce the buyer’s cost on a purchase transaction). In the private ruling, the IRS distinguished payments involving broker commissions, which are dependent upon the sales transactions, from third-party grants that are independent of the transaction. Id. ↑
The taxpayer received “Thank You Points” that were redeemable for airline miles. Shankar v. Comm’r, 143 T.C. 140, 148 (2014). The court also noted that the miles were not earned during business travel, which the IRS has singled out for non-enforcement in Announcement 2002-18, 2002-1 C.B. 621. ↑
Shankar, 143 T.C. at 148. ↑
See I.R.S. Priv. Ltr. Rul. 201027015, at 3 (July 9, 2010) (ruling that cash-back rebates are excluded from gross income as purchase price reductions). ↑
For taxpayers that are corporations, Code § 118 historically exempted “contributions to capital,” which covered many government grants to corporations. However, section 118 was amended in 2017 and currently does not exempt contributions to capital made by “any governmental entity.” I.R.C. § 118(b). Regardless, this Article is concerned with incentives provided to individual taxpayers, not corporations.
There are other special exclusions applicable to businesses not discussed in detail here. For example, Code § 48(d)(3) excludes grants made to developers and producers of renewable energy, pursuant to the American Recovery and Reinvestment Act of 2009. ↑
Greisen v. United States, 831 F.2d 916, 918 (9th Cir. 1987). The Alaska Permanent Fund is funded by the state’s mineral royalties; it distributes earnings in the form of dividends to each resident of the state on an annual basis. Id. at 916–17; see also About Us, Alaska Department of Revenue: Permanent Fund Dividend Division, https://pfd.alaska.gov/Division-Info/About-Us [https://perma.cc/QHG2-M67C] (last visited July 1, 2019) (explaining the Alaska Permanent Fund eligibility and dividend calculation functions). ↑
Greisen, 831 F.2d at 919–20 (“According to the statement of purpose, the 1980 Act was intended: (1) to allow equitable distribution of part of the state’s wealth to Alaskans; (2) to encourage people to remain Alaska residents; and (3) to encourage awareness and interest in the management of the fund.”). ↑
See, e.g., Graff v. Comm’r, 673 F.2d 784, 785 (5th Cir. 1982). For a comprehensive discussion of the doctrine, see Theodore P. Seto & Sande L. Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. Pa. L. Rev. 1053, 1106–14 (2006); see generally Robert W. Wood & Richard C. Morris, The General Welfare Exception to Gross Income, 109 Tax Notes 203, 204–08 (2005) (describing the development of the General Welfare Exception and the prongs of the test determining whether a payment qualifies). ↑
Rev. Rul. 2005-46, 2005-2 C.B. 120; see also Rev. Rul. 74-205, 1974-1 C.B. 20 (ruling that housing payments to displaced families qualified under the general welfare exception, and were not includible in gross incomes of the recipients); Rev. Rul. 98-19, 1998-1 C.B. 840 (ruling that a relocation payment made to an individual moving from a flood-damaged residence qualified for the general welfare exception). ↑
I.R.S. Notice 99-3, 1999-1 C.B. 271, 272. ↑
Rev. Rul. 2005-46, supra note 138. ↑
Rev. Rul. 2003-12, 2003-1 C.B. 283; Rev. Rul. 76-144, 1976-1 C.B. 17. However, the IRS has ruled that payments to businesses do not qualify for the doctrine, because the need must be “individual or family” based. See Rev. Rul. 2005-46, supra note 138. ↑
Rev. Rul. 74-74, 1974-1 C.B. 18. ↑
Rev. Rul. 76-395, 1976-2 C.B. 16. ↑
88 T.C. 1293, 1301 (1987), acq. 1989-2 C.B. 1. The court excluded the grant from income on other grounds, however, finding that the taxpayer “lacked complete dominion” over the funds, which were paid directly to the contractor who did the work. ↑
Id. (noting that the only requirements to receive the grant “were ownership of the property and compliance with the building code”). ↑
The exclusion applies to “qualified disaster[s],” which also includes events involving terrorism or common carrier accidents. See I.R.C. § 139(c). For a critique of limiting the exclusion to qualified disasters only, see Ellen P. Aprill & Richard Schmalbeck, Post-Disaster Tax Legislation: A Series of Unfortunate Events, 56 Duke L.J. 51, 95 (2006). ↑
I.R.C. § 139(g). ↑
I.R.C. § 401(k). ↑
I.R.C. § 61. ↑
I.R.C. § 132(e). ↑
I.R.C. § 106(a). ↑
Rev. Rul. 2002-3, 2002-1 C.B. 316 (“Under §106(a), an employee may exclude premiums for accident or health insurance coverage that are paid by an employer.”). ↑
I.R.C. § 105(b). ↑
See, e.g., Office of Chief Counsel Internal Revenue Service Memorandum 201622031, at 1 (Apr. 14, 2016) [hereinafter “IRS Memo 201622031”]. ↑
I.R.C. § 61. ↑
Treas. Reg. § 1.132-6(c) (as amended in 1992). ↑
I.R.C. § 132(e). ↑
Treas. Reg. § 1.132-6(c) (as amended in 1992). The exception to this rule is cash for occasional overtime meals or transportation fare can be excluded as de minimis. See Treas. Reg. § 132-6(d)(2) (as amended in 1992). ↑
Treas. Reg. § 1.132-6(e)(1) (as amended in 1992) (“Benefits excludable from income”). ↑
IRS Memo 201622031 at 4. ↑
Id. at 4. ↑
See Treas. Reg. § 1.132-6(e)(1)–(2) (as amended in 1992). ↑
See supra notes 51–53 and accompanying text. ↑
See Treas. Reg. § 1.61-2(d)(1) (as amended in 2003). ↑
I.R.C. § 132(e)(1). ↑
Treas. Reg. § 1.132-6(e)(1)–(2) (as amended in 1992). ↑
See IRS Memo 201622031 at 2, 4–5. “Medical care” is defined in section 105(b) by reference to section 213(d) of the Code, which provides that medical care includes amounts paid “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” I.R.C. § 213(d)(1)(A). ↑
See IRS Memo 201622031 at 2, 5. ↑
See id. For examples of medical care under section 213, including smoking cessation programs, see IRS Publication 502, Medical and Dental Expenses, https://www.irs.gov/‌pub/irs-pdf/p502.pdf [https://perma.cc/3GGF-RMV3] (last visited Mar. 10, 2021). ↑
Medical expenses include payments for a weight-loss program “for a specific disease diagnosed by a physician,” so it is unlikely that a weight-loss program would qualify in the absence of a diagnosis. See IRS Publication 502, supra note 169. ↑
See Treas. Reg. § 1.132-6(e)(1) (as amended in 1992) (citing examples of “occasional” events, such as sports games or cocktail parties, as ones that qualify as de minimis). ↑
In an analogous context, it appears many service-type benefits offered by Silicon Valley companies, such as free dry cleaning, haircuts, or yoga classes, are likely not reported as taxable by those employers. See Soled & Thomas, supra note 120, at 779–86. ↑
Treas. Reg. § 1.132-6(e)(2) (as amended in 1992). However, onsite gyms operated by the employer qualify for exclusion. See I.R.C. § 132(j)(4). ↑
See IRS Memo 201622031 at 4–5. ↑
I.R.C. § 132(a)(2). ↑
I.R.C. § 132(c)(4). ↑
It follows that a private gym could offer discounted gym services to its own employees. ↑
See supra note 57 and accompanying text. ↑
See supra note 128 and accompanying text. ↑
See supra note 152. ↑
See IRS Memo 201622031 at 5. ↑
See id. at 2–5. ↑
See Rev. Rul. 2002-3, supra note 152. ↑
See supra note 73 and accompanying text. ↑
See supra notes 75–77 and accompanying text. ↑
See supra notes 67–70 and accompanying text; 75–77 and accompanying text. ↑
See supra note 140 and accompanying text. ↑
See supra notes 141–43 and accompanying text. ↑
See IRS Publication 502, supra note 169. However, the deduction is only available to itemizers (those who do not claim the standard deduction) and is limited to the excess of 10% of the individual’s adjusted gross income. I.R.C. § 213(a). ↑
I.R.C. § 105(b). ↑
I.R.C. § 104(a). ↑
Another exception, which would be irrelevant in this circumstance, is section 102, which would exclude from income medical care paid for by family members or friends. See I.R.C. § 102(a). ↑
See supra notes 84–87 and accompanying text. ↑
See, e.g., supra note 87. ↑
See supra note 129 and accompanying text. ↑
For example, in Freedom Newspapers v. Commissioner, 36 T.C.M. (CCH) 1755 (1977), the Tax Court held that even a payment received by a third party broker several years after the original purchase “was sufficiently tied to the purchase that its characterization must be made by reference to the original transaction.” ↑
I.R.C. § 139(g). ↑
See supra note 141 and accompanying text. ↑
See supra note 98 and accompanying text. ↑
I.R.S. Priv. Ltr. Rul. 201816004 (Jan. 11, 2018). See also I.R.S. Priv. Ltr. Rul. 201815005 (Jan. 11, 2018) (describing similar facts).
One theory that the IRS did not appear to consider is the purchase price adjustment doctrine. See supra Subsection II.A.2. Arguably, a state grant paid to a state taxpayer could be considered a non-taxable adjustment to the amount of taxes owed to the state by the grant recipient. (This assumes the grant recipient earns enough income to owe state taxes in excess of the grant.) While it is hard to distinguish a state grant from a seller rebate on economic grounds, it appears neither courts nor the IRS have extended the purchase price adjustment doctrine to this context. I am grateful to Heather Field for this observation. ↑
I.R.S. Priv. Ltr. Rul. 201816004 (Jan 11. 2018). ↑
See Earthquake Mitigation Incentive and Tax Parity Act of 2017, H.R. 1691, 115th Cong. (2017); Earthquake Mitigation Incentive and Tax Parity Act of 2017, S. 2104, 115th Cong. (2017). ↑
See Henry C. Simons, Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy 50 (1938); Robert Murray Haig, The Concept of Income–Economic and Legal Aspects, in The Federal Income Tax 1, 7 (Robert Murray Haig ed., 1921). The definition is commonly referred to as the Haig-Simons definition of income. See, e.g., John R. Brooks, The Definitions of Income, 71 Tax L. Rev. 253, 262 (2018); Boris I. Bittker, A “Comprehensive Tax Base” as a Goal of Income Tax Reform, 80 Harv. L. Rev. 925, 932 (1967). For a comprehensive discussion of the difficulty of defining income and a description of several other approaches, see generally Brooks, supra; see also Victor Thuronyi, The Concept of Income, 46 Tax L. Rev. 45, 47 (1990) (describing the Haig-Simons definition vis-à-vis the general difficulty in defining income). ↑
See, e.g., Bittker, supra note 203, at 935; Jonathan Barry Forman, The Income Tax Treatment of Social Welfare Benefits, 26 U. Mich. J.L. Reform 785, 799 (1993). ↑
Bittker, supra note 203, at 935–37. ↑
The legal scholarship on this point is too voluminous to cite, but for some of the earliest work, see, e.g., id. at 932; R. A. Musgrave, In Defense of an Income Concept, 81 Harv. L. Rev. 44 (1967); Joseph A. Pechman, Comprehensive Income Taxation: A Comment, 81 Harv. L. Rev 63 (1967); Charles O. Galvin, More on Boris Bittker and the Comprehensive Tax Base: The Practicalities of Tax Reform and the ABA’s CSTR, 81 Harv. L. Rev. 1016 (1968). For a discussion of the debate over the use of a “comprehensive tax base,” see Brooks, supra note 203, at 270–74. ↑
See, e.g., Dep’t of Treasury, Office of Tax Analysis, Tax Expenditures (2017), https://www.treasury.gov/resource-center/tax-policy/Documents/Tax-Expenditures-FY2019.pdf [https://perma.cc/8UVR-9ZKJ] [hereinafter “Tax Expenditures]. ↑
Id. at 9, 18. ↑
Although the tax-free receipt of a gift by the donee is not labeled as an expenditure, the carryover basis provided by section 1015 for appreciated gifts is considered a tax expenditure. See J. Comm. on Tax’n, Estimates of Federal Tax Expenditures for Fiscal Years 2018–2022, 26 (Oct. 4, 2018), https://www.jct.gov/publications/2018/jcx-81-18/ [https://perma.cc/33XY-P3EB] [hereinafter “JCT Tax Expenditures”]. ↑
See Tax Expenditures, supra note 207, at 3 (“The normal tax baseline also excludes gifts between individuals from gross income.”). ↑
See, e.g., Richard Schmalbeck, Gifts and the Income Tax—An Enduring Puzzle, 73 Law & Contemp. Probs. 63, 65 (2010) (arguing that “although it is intuitively appealing to regard value received by gift as an element of the income of the individual receiving it, it is completely unappealing to regard value received by gift as an increment to income in the aggregate”). ↑
Id. This of course assumes that the donor and the donee have the same tax rate. In reality, donors likely have higher tax rates than donees, in which case the net effect would be revenue loss to the government. For example, if the donor had a 30% marginal tax rate and the donee had a 10% marginal tax rate, the donor’s deduction for a $100 gift would be worth $30 (30% of $100), while the donee’s tax liability would be $10 (10% of $100), resulting in a $20 revenue loss. ↑
For income tax purposes, the gift is a non-event and need not be reported. However, the gift may need to be valued and returns filed if the gift tax applies. Currently, transfers under $15,000 are exempt from the gift tax. See, e.g., Frequently Asked Questions on Gift Taxes, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes [https://perma.cc/23XD-GDZC] (last visited July 11, 2019). ↑
E.g., Schmalbeck, supra note 211, at 65. ↑
The counterargument is that the gift represents consumption purchased by the donor. For a discussion of this theory, see id. at 68–69. ↑
See supra Subsection II.A.2. ↑
For a similar argument, see Charlotte Crane, Government Transfer Payments and Assistance: A Challenge for the Design of Broad-Based Taxes, 59 SMU L. Rev. 589, 611–12 (2006) (pointing out that government transfers do not create new value). ↑
See, e.g., supra notes 134–135 and accompanying text. ↑
See supra note 154 and accompanying text. ↑
Either way, the payment is deductible under Code section 162. ↑
JCT Tax Expenditures, supra note 209, at 27. The characterization of an exclusion as an expenditure depends on how Congress defines the tax base, and this has changed over time. See, e.g., Julie Roin, Truth in Government: Beyond the Tax Expenditure Budget, 54 Hastings L.J. 603, 608–10 (2003) (providing an overview of the development of the federal tax expenditure budget).
The characterization of scholarships depends particularly on varying definitions of the tax base, and Treasury has noted that:

From an economic point of view, scholarships and fellowships are either gifts not conditioned on the performance of services, or they are rebates of educational costs. Thus, under the baseline tax system of the reference law method, this exclusion is not a tax expenditure . . . . The exclusion, however, is considered a tax expenditure under the normal tax method, which includes gift-like transfers of Government funds in gross income (many scholarships are derived directly or indirectly from Government funding).

See Tax Expenditures, supra note 207 at 13. ↑
See, e.g., Joseph M. Dodge, Scholarships Under the Income Tax, 46 Tax Law. 697, 698–99 (1993) (examining arguments for excluding scholarships from the tax base and for making them a tax preference); Charlotte Crane, Scholarships and the Federal Income Tax Base, 28 Harv. J. on Legis. 63, 113 (1991) (same). ↑
The exclusion in section 117 only covers scholarships paid for tuition and related expenses. Although some scholarship funds are conditioned on the performance of services like teaching or research, those funds are explicitly excluded from section 117 and are taxable. I.R.C. § 117(c)(1). ↑
The value of the educational benefit likely exceeds the cost of tuition because higher educational institutions receive substantial funding from other sources besides tuition, including government subsidies. See, e.g., Crane, supra note 222, at 71. ↑
See generally sources cited at note 222 (observing the difficulty of assessing educational value as justification for exempting academic scholarships from taxable income under the federal tax code). ↑
See supra note 221; see also Dodge, supra note 222, at 701–02. ↑
See Dodge, supra note 222, at 711. ↑
See Freedom Newspapers v. Commissioner, 36 T.C.M. (CCH) 1755, 1758–59 (1977). ↑
JCT Tax Expenditures, supra note 207, at 27–28. ↑
Because retrofit grants and similar payments must be applied towards the specified property improvements, they are better viewed as the provision of property, rather than as a receipt of cash by the taxpayer. There is precedent for this approach, although it is not the approach the IRS has taken specifically with retrofit grants. For example, in Bailey v. Commissioner, the taxpayer wasn’t taxed on an urban renewal grant for his property because the grant went directly to the general contractor, and the court found the taxpayer never had sufficient control over the funds to warrant taxation. See 88 T.C. 1293, 1301 (1987), acq., 1989-2 C.B. 1.
Arguably, any time an individual receives an incentive-based nudge or BBS in the form of cash that must be spent on specified property or services, the taxability of such funds should be based on the ultimate purchase, rather than on the temporary receipt of cash. ↑
For example, if a taxpayer owns an asset that appreciates in value (e.g., a stock or a house), she has a positive change in net wealth. However, the Code will not tax her until she “realize[s]” a gain, such as by making a sale. See I.R.C. § 1001. ↑
For a discussion of the legislative history behind the section 132 fringe benefit rules, see infra notes 261–67 and accompanying text. ↑
See Scott Greenberg, Reexamining the Tax Exemption of Municipal Bond Interest, Tax Found. Fiscal Fact No. 520 (July 2016), https://files.taxfoundation.org/legacy/‌docs/TaxFoundation_FF520.pdf [https://perma.cc/ZY7A-QS3M]. (observing that state and local bonds are justified as a basis for incentivizing investments in projects that benefit nonresidents, but concluding that “[a] tax exclusion is an unideal policy design for subsidizing state and local debt”). ↑
In that case, 20% or $250 would be tax, and $1,000 would remain. ↑
If the federal government increases a federal subsidy from $1,000 to $1,250 to account for federal income tax, it will pay $250 more for the subsidy and collect $250 in tax. ↑
See, e.g., Christopher C. Fennell & Lee Ann Fennell, Fear and Greed in Tax Policy: A Qualitative Research Agenda, 13 Wash. U. J.L. & Pol’y 75, 79 (2003) (“A functional definition of . . . tax aversion . . . is the amount by which one’s aversion to a tax exceeds the economic cost of the tax.”); Edward J. McCaffery & Jonathan Baron, Thinking About Tax, 12 Psych., Pub. Pol’y & Law 106, 117 (2006); Abigail B. Sussman & Christopher Y. Olivola, Axe the Tax: Taxes Are Disliked More than Equivalent Costs, 68 J. Mktg. Rsch. S91, S91 (2011). ↑
See, e.g., Sussman & Olivola, supra note 236, at S93 (describing experiments that found people change their behavior to avoid taxes, but not reacting in a similar manner to comparable non-tax costs). ↑
McCaffery & Baron, supra note 236, at 117–18 (recounting an experiment the authors conducted where individuals were confronted with a policy labeled as a tax or comparable economic policy not labeled as a tax, which “found that labels mattered”); David J. Hardisty, Eric J. Johnson & Elke U. Weber, A Dirty Word or a Dirty World? Attribute Framing, Political Affiliation, and Query Theory, 21 Psych. Sci. 86, 91 (2010) (finding in an experiment that “framing the cost increase as a tax differentially affected the structure and content of thoughts generated by Democrats and Republicans, leading to different preferences”). ↑
Sussman & Oliviola, supra note 236, at S94–96, S100. ↑
Id. at S95. ↑
Id. ↑
Id. ↑
Id. ↑
Id. at S95–96. ↑
Id. at S94. ↑
One source of variation appears to be political affiliation. Studies show that Republicans and Independents are sensitive to “tax” labels in decision making, but Democrats generally are not. See id. at S96–97; Hardisty et al., supra note 238, at 91 (finding “that the power of a framing manipulation can depend on participants’ preexisting individual differences”). ↑
Of course, tax aversion will not deter participants who are unaware of the tax, which may be the case when there is no information reporting required. For incentives subject to information reporting (discussed more below), participants will likely have to provide tax information at the outset (e.g., a Form W-9), and are more likely to be aware of tax consequences. Other programs may disclose tax consequences on their website or in related materials, as is the case with California’s Earthquake Mitigation program. See infra note 272. ↑
See generally Kay Blaufus & Axel Möhlmann, Security Returns and Tax Aversion Bias: Behavioral Responses to Tax Labels, 15 J. Behav. Fin. 56, 63–65 (2014) (finding that people have tax aversion bias toward infrequent, unfamiliar financial decisions). ↑
See I.R.C. § 6041(a). ↑
I.R.S. Priv. Ltr. Rul. 201816004 (Apr. 20, 2018); I.R.S. Priv. Ltr. Rul. 201815005 (Apr. 13, 2018). ↑
Marianne Bertrand, Sendhil Mullainathan, & Eldar Shafir, Behavioral Economics and Marketing in Aid of Decision Making Among the Poor, 25 J. Pub. Pol’y & Mktg. 8, 16 (2006). ↑
Id. ↑
Saurabh Bhargava & Dayanand Manoli, Psychological Frictions and the Incomplete Take-Up of Social Benefits: Evidence from an IRS Field Experiment, 105 Am. Econ. Rev. 3489, 3490 (2015). ↑
Id. at 3524. ↑
Id. at 3492. ↑
See Kathleen DeLaney Thomas, User-Friendly Taxpaying, 92 Ind. L.J. 1509, 1512 (2017). ↑
Tax withholding is required on payments of employee compensation, but not for other payments. See I.R.C. § 3402(a). ↑
See, e.g., Thomas, supra note 94, at 84. ↑
See supra note 249 and accompanying text. ↑
Penalties are up to $270 per information return (up to $550 in the case of intentional disregard) and may be assessed separately for both failure to issue to the payee and failure to file with the IRS. For a summary of these penalties, see Increase in Information Return Penalties, IRS, https://www.irs.gov/government-entities/federal-state-local-governments/‌increase-in-information-return-penalties [https://perma.cc/F2NZ-K4CL] (last visited July 17, 2019). ↑
Deficit Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 494, 499 (codified as amended in scattered sections of 26 U.S.C.). ↑
See Staff of J. Comm. on Tax’n, 98th Cong., General Explanation of the Revenue Provisions of the Deficit Reduction Act of 1984, at 840 (Comm. Print 1984). ↑
Id. ↑
Id. at 841. ↑
Id. ↑
Id. ↑
Id. at 843. ↑
Equally important, but beyond this Article’s scope, are potential federalism and comity concerns that may arise when the federal government seeks to tax state programs, to the extent the tax hinders the state’s ability to implement the program. ↑
See Earthquake Mitigation Incentive and Tax Parity Act of 2017, H.R. 1691, 115th Cong. (2017); Earthquake Mitigation Incentive and Tax Parity Act of 2017, S. 2104, 115th Cong. (2017). ↑
Id. ↑
Press Release, Senator Dianne Feinstein, Feinstein and Harris Introduce Legislation to Protect Earthquake Loss Mitigation Incentive Ahead of Senate GOP Tax Bill Release (Nov. 9, 2017), https://www.feinstein.senate.gov/public/index.cfm/press-releases?ContentRecord_‌id=78BD9E69-4090-4E62-AE1A-08A01870F3AB [https://perma.cc/L7UZ-BY8G]. ↑
The Brace + Bolt program mentions potential consequences in an FAQ on its website, stating, “The homeowner of a retrofit House under the Program will receive an IRS Form 1099, if applicable, reporting the amount of incentive payments as taxable income to the homeowner for federal income tax purposes.” See Earthquake Brace+Bolt FAQs, https://www.earthquakebracebolt.com/FAQ [https://perma.cc/GXF5-HMEU] (last visited July 24, 2019). ↑
Although state tax credits are generally not taxable, to the extent they reduce a taxpayer’s state tax liability, the refundable portion (if any) of a state tax credit is taxable. See, e.g., Ginsburg v. United States, 922 F.3d 1320, 1322 (Fed. Cir. 2019) (holding that the refundable portion of a New York State tax credit was includible in income for federal income tax purposes). ↑
See supra notes 134–35 and accompanying text. ↑
I.R.C. § 85. However, prior to the enactment of section 85, the IRS treated unemployment payments as excludable. See Rev. Rul. 70-280, 1970-1 C.B. 13. ↑
Failing to tax unemployment compensation also favors such compensation over wages, which may distort decisions to work. ↑
See I.R.C. § 86. Previously, the IRS treated all Social Security benefits as exempt from tax. See Rev. Rul. 70-217, 1970-1 C.B. 13. ↑
See, e.g., Forman, supra note 204, at 795. But see Brian Galle, How to Save Unemployment Insurance, 50 Ariz. St. L.J. 1009, 1062–64 (2018) (arguing for repeal of taxes on unemployment benefits). ↑
Professor Charlotte Crane has observed that this appears to have been the IRS’s historical approach prior to the evolution of the general welfare doctrine. Crane, supra note 217, at 594. ↑
Examples include current exclusions for educational grants, veterans’ benefits, and worker’s compensation payments. See, e.g., I.R.C. § 104(a)(1) (worker’s comp), I.R.C. § 117 (scholarships), 38 U.S.C. § 5301 (veterans’ benefits). Similarly, Medicare benefits, which are not specifically excluded by statute but are treated as such by the IRS, would continue to be excluded. See Rev. Rul. 70-341, 1970-2 C.B. 31–32. ↑
See supra note 167. ↑
See supra notes 261–67 and accompanying text. ↑
See supra note 172. ↑
See Soled & Thomas, supra note 120, at 763–64, 776. ↑
Id. at 814–15. ↑
While section 132 contains a list of specific exclusions in the statute, section 132(o) does delegate authority to Treasury to implement the statute and numerous regulations exist, such as those clarifying what types of benefits qualify as de minimis fringes. See Treas. Reg. § 1.132-6 (as amended in 1992). ↑
Cf. Crane, supra note 217, at 612–13 (discussing the exclusion of transfer payments that do not create new value, regardless of source). ↑
Withholding could be set at a default rate (e.g., 5%), or taxpayers could fill out a form that would determine their withholding rate. These possibilities are discussed in Thomas, supra note 94, at 131–34. ↑
See id. at 111. ↑
Id. at 128. ↑

Invoking Criminal Equity’s Roots

Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and specific performance, operate as an unappreciated and underutilized safety valve that protects against the procedural strictures and dehumanization that are hallmarks of our criminal legal system. Less familiar equitable-like legal remedies, such as writs of mandamus, writs of coram nobis, and writs of audita querela, likewise serve to alleviate fundamental errors in the criminal process. Several barriers contribute to the limited use and efficacy of these longstanding remedies. Despite the vast numbers of people caught up in the criminal system, society’s aversion to recognizing errors in the system or to acknowledging the humanity of those charged prohibits greater invocation of these remedies. When taken in conjunction with the historically-based fear of judicial arbitrariness and unchecked discretion associated with equity courts, these barriers can seem insurmountable. This Article highlights the pervasiveness of equitable remedies in the criminal system and advocates for an expanded use of equitable and equitable-like legal remedies in criminal cases. In an era with the odds so overwhelmingly stacked against criminal defendants, equity provides a much-needed check on our criminal system, allowing for the exercise of mercy and justice, not just punitiveness and retribution.

Introduction

The one-sided retributive impulses that govern state and federal criminal legal systems have significantly expanded the substantive criminal law while curtailing the procedural mechanisms aimed at protecting the rights of the accused. Few safety valves remain in place to keep these retributive impulses in check. Equitable remedies remain one such safety valve. Equitable remedies allow a person accused or convicted of a crime to obtain relief from the restrictive criminal procedures states and Congress have implemented over the past half century. Here are a few examples:

Orville Hutton legally came to the United States as a child from his native Jamaica.¹1.State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015).Show More He became a lawful permanent resident and remained in the U.S.²2.Id.Show More At the age of forty-eight, he was accused of assaulting his live-in girlfriend.³3.Id.Show More Hutton entered an Alford plea—a plea of guilty without an admission of guilt⁴4.Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).Show More—and was sentenced to a term of imprisonment of one to five years.⁵5.Id. at 624.Show More Ten days before he was to be released, the Department of Homeland Security notified him that he was subject to a federal detainer, as the government had begun deportation proceedings against him.⁶6.Id.Show More Hutton’s trial counsel never told him his guilty plea might have immigration consequences, and he had already waived his right to appeal.⁷7.Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014).Show More After he was transferred into DHS custody, Hutton filed a pro se writ of coram nobis, a little heard of equitable remedy still available in federal courts and many states.⁸8.A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2.Show More Hutton alleged a violation of his Sixth Amendment right to counsel based on his lawyer’s failure to inform him of the likely immigration consequences of pleading guilty.⁹9.Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635.Show More The West Virginia Supreme Court granted the requested equitable relief, allowing him to withdraw his guilty plea and stand trial for the offenses with which he was initially charged.¹⁰10.State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017).Show More

An Arkansas jury convicted Eugene Pitts of capital murder after a masked man broke into the home of a doctor and his wife. The evidence at trial consisted of the wife’s positive identification of Pitts, despite the mask covering much of the assailant’s face; FBI testimony about hair found on the decedent, purportedly belonging to Pitts; and Pitts’ inability to account for his whereabouts at the time of the murder.¹¹11.Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)).Show More After his conviction, Pitts maintained his innocence and pursued every possible post-conviction remedy.¹²12.Id. at 804⁠–05.Show More Subsequent DNA testing of the remaining hair sample was inconclusive, and the court denied a request for further testing.¹³13.Id. at 805.Show More The remaining sample was later lost.¹⁴14.Id.Show More Three years later, Pitts received a letter from the Department of Justice, informing him that the work of the FBI lab technician who did the hair analysis in his case “failed to meet professional standards,” resulting in three types of errors in the testimony at Pitts’ trial.¹⁵15.Id.Show More Pitts asked the Supreme Court of Arkansas to reinvest jurisdiction in the trial court to consider a remedy, including a writ of coram nobis and a writ of audita querela.¹⁶16.Id. at 804.Show More The court granted the motion.¹⁷17.Id. at 806.Show More

Maranda ODonnell joined other plaintiffs in a class action suit against Harris County, Texas, alleging that the county’s bail system for indigent misdemeanor arrestees violated both Texas statutory and constitutional law and the Fourteenth Amendment to the U.S. Constitution.¹⁸18.ODonnell v. Harris Cnty., 882 F.3d 528, 534⁠–35 (5th Cir. 2018), withdrawn, superseded on reh’g, 892 F.3d 147 (5th Cir. 2018).Show More The Texas district court granted a preliminary injunction after eight days of hearings,¹⁹19.ODonnell, 892 F.3d at 152.Show More finding that “County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so.”²⁰20.Id. at 153.Show More In various ways, “the imposition of secured bail specifically target[ed] poor arrestees,” resulting in a pretrial system where “an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”²¹21.ODonnell, 882 F.3d at 536.Show More The district court found ODonnell had a likelihood of success on the merits of her claim that the County violated both the procedural due process rights and the equal protection rights of indigent misdemeanor detainees.²²22.ODonnell, 892 F.3d at 155. The U.S. Court of Appeals for the Fifth Circuit affirmed that conclusion on appeal. Id. at 152.Show More

In each of these instances, courts alleviated a significant injustice in the criminal legal system that would have remained but for the availability of an equitable remedy.

These are not isolated cases. Although equitable remedies in criminal cases remain largely undiscussed in scholarly literature and public dialogue,²³23.But seeCortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018).Pardons are the occasional exception to the general silence. See, e.g., Brakkton Booker, On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More, NPR (Dec. 13, 2019, 12:52 PM), https://www.npr.org/2019/12/13/787811560/on-his-way-out-kentucky-gov-matt-bevin-pardons-murderers-rapists-hundreds-more [https://perma.cc/6M4H-N7LT]; Adam H. Johnson, Misplaced Outrage Over Kentucky Governor’s Pardons Harms Criminal Justice Reform, Appeal (Dec. 20, 2019), https://theappeal.org/misplaced-outrage-over-kentucky-governors-pardons-harms-criminal-justice-reform/ [https://perma.cc/X8Y6-UK4M]. However, pardons are left exclusively to the province of the governor or president and are generally underutilized as a criminal legal system check. See, e.g.,Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 46 (1998).Show More they provide a critical safeguard in the criminal legal system worthy of deeper scholarly attention. Amidst a frustrating lack of progress toward reforming our criminal legal system, equitable remedies address some of the inadequacies and gaps in this lop-sided system. As I have noted previously, pretrial detainees have successfully challenged local bail systems, securing release from confinement through the equitable remedy of a preliminary injunction.²⁴24.SeeLollar, supranote 23, at 327–48.Show More Individuals convicted of a crime but unable to pay the fines, fees, and costs imposed at sentencing have avoided continued incarceration through injunctions as well. When prosecutors renege on promises made as part of a plea agreement, courts have relied on the equitable remedy of specific performance to insist on fulfillment of those promises.²⁵25.Id. at 342⁠–44.Show More In short, equitable remedies play a valuable role in providing a modicum of balance to the criminal legal process.

This Article suggests that equity can and should play a larger role in criminal cases. Using equitable remedies such as injunctions and specific performance as a jumping-off point, this Article examines several equitable-like legal remedies whose pre-equity roots are grounded in similar notions of fairness and which, like equitable remedies, compel action, not just monetary compensation.

“Special and equitable”²⁶26.I have created this term drawing on the use of the word “special” in this context by scholar Samuel Bray and the U.S. Supreme Court. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 564, 564 & n.176, 593 (2016); Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (“[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”).Show More legal remedies in the form of writs of mandamus, writs of coram nobis, and writs of audita querela already play a role in addressing inequities in criminal cases, but as with injunctions and specific performance, they can play a broader role in balancing out the inequities in the current legal system.²⁷27.See infra Section I.B.Show More Writs of mandamus, for example, more often assist prosecutors in limiting a lower court’s authority to challenge their actions than they aid a defendant in obtaining the personnel file of a police officer with a history of excessive force complaints. Writs of coram nobis historically have been available to a person claiming an error of “the most fundamental character” in that person’s criminal conviction.²⁸28.See infra notes 169–73 and accompanying text.Show More But the availability of these writs in the federal system has been limited by prevailing precedent requiring the person to show an ongoing harm that is “more than incidental.”²⁹29.See infra notes 180–85 and accompanying text.Show More Courts have discounted claims of continuing financial penalties and an inability to obtain certain professional licenses as ongoing harms sufficient to bring a claim for a writ of coram nobis.³⁰30.Id.Show More

Embracing a reinvigorated use of equitable and equitable-like legal remedies would serve a crucial function in our criminal legal system. For example, writs of audita querela are an ideal equitable-like legal mechanism to request release from incarceration post-conviction due to the presence of COVID-19 in the prison or jail where one is serving a sentence. Writs of audita querela can issue when “it would be contrary to justice” to allow a criminal judgment “to be enforced, because of matters arising subsequent to the rendition thereof.”³¹31.Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *11 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).Show More In states that have not limited the remedy’s application, a request for release under audita querela due to the extraordinary and unpredicted consequences of COVID-19 could be an effective method of obtaining perhaps otherwise unattainable relief. These remedies can be an antidote to some of the criminal system’s ills, responding to the narrowing of procedural protections for those charged with a crime, challenging the staggering expansion of criminal sentences, and addressing the metastatic collateral consequences that attach to a criminal conviction.

This broad remedial conception is grounded in equity’s historical roots, yet limited in a manner that prevents unchecked, ad hoc judicial discretion. Focusing on judicially granted remedies,³²32.Although pardons are a well-recognized equitable remedy, the discretion to grant them remains with the governor of a state or President of the United States, raising fundamentally different issues than judicially granted remedies. For this reason, pardons are beyond the scope of this Article’s discussion. See sources cited supra note 23.Show More this Article proposes ways in which equitable remedies can begin to effectively challenge certain aspects of the criminal legal system in an effort to make the system fairer and more balanced.

This is the second of two articles addressing the use of equitable remedies in the criminal system. My first article, Reviving Criminal Equity,³³33.SeeLollar, supranote 23.Show More identified that courts are relying on equitable remedies, such as preliminary injunctions and specific performance, to counter inequities in the criminal legal system. Reviving Criminal Equity explored the use of the narrow category of remedies deemed equitable by early English courts in recent criminal cases. This Article takes off where Reviving Criminal Equity ends.

After beginning with a brief examination of the concept of equity and how it applies in the criminal legal system, Part I discusses the distinctions between equitable remedies and “special and equitable” legal remedies and describes how these “special and equitable” legal remedies are being effectively employed in a manner similar to equitable remedies in modern criminal cases. Part II recognizes the conceptual barriers to expanding the use of these equitable remedies, including a lack of familiarity with the remedies in a criminal context, and a societal and legal reluctance to give the benefit of the doubt to those accused of crimes. It then responds to these barriers by articulating a vision of a bounded equity. Pulling from historical equity principles that relied on an objective moral conscience quite different from this modern era’s subjective ideas of conscience, Part II argues for the use of equitable remedies grounded in existing remedial principles rather than relying on a theory of shared morality. Finally, Part III provides specific examples of how a re-envisioned, expansive equity might look on the ground. Returning to the individual remedies outlined in Part I, Part III illustrates how courts could use equity to obtain a fairer and more just process and result in the face of a system full of procedural hurdles and punitive impulses.

* James and Mary Lassiter Associate Professor, University of Kentucky J. David Rosenberg College of Law. Thank you to Joshua Barnette, Valena Beety, Christopher Bradley, Erin Collins, Joshua Douglas, Ion Meyn, Anna Roberts, Caprice Roberts, Paul Salamanca, Kate Weisburd, and Ramsi Woodcock for sharing their invaluable thoughts and ideas throughout the writing of this piece. I am also grateful to the editorial staff of the Virginia Law Review, particularly Alexander Heldman, Chloe Fife, and Paige Whitaker, for their careful and thoughtful editing of this piece, and to Arjun Ogale for ensuring the editorial process ran smoothly from start to finish. ↑
State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015). ↑
Id. ↑
Id. ↑
Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)). ↑
Id. at 624. ↑
Id. ↑
Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014). ↑
A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2. ↑
Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635. ↑
State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017). ↑
Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)). ↑
Id. at 804⁠–05. ↑
Id. at 805. ↑
Id. ↑
Id. ↑
Id. at 804. ↑
Id. at 806. ↑
ODonnell v. Harris Cnty., 882 F.3d 528, 534⁠–35 (5th Cir. 2018), withdrawn, superseded on reh’g, 892 F.3d 147 (5th Cir. 2018). ↑
ODonnell, 892 F.3d at 152. ↑
Id. at 153. ↑
ODonnell, 882 F.3d at 536. ↑
ODonnell, 892 F.3d at 155. The U.S. Court of Appeals for the Fifth Circuit affirmed that conclusion on appeal. Id. at 152. ↑
But see Cortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018).

Pardons are the occasional exception to the general silence. See, e.g., Brakkton Booker, On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More, NPR (Dec. 13, 2019, 12:52 PM), https://www.npr.org/2019/12/13/787811560/on-his-way-out-kentucky-gov-matt-bevin-pardons-murderers-rapists-hundreds-more [https://perma.cc/6M4H-N7LT]; Adam H. Johnson, Misplaced Outrage Over Kentucky Governor’s Pardons Harms Criminal Justice Reform, Appeal (Dec. 20, 2019), https://theappeal.org/misplaced-outrage-over-kentucky-governors-pardons-harms-criminal-justice-reform/ [https://perma.cc/X8Y6-UK4M]. However, pardons are left exclusively to the province of the governor or president and are generally underutilized as a criminal legal system check. See, e.g., Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 46 (1998). ↑
See Lollar, supra note 23, at 327–48. ↑
Id. at 342⁠–44. ↑
I have created this term drawing on the use of the word “special” in this context by scholar Samuel Bray and the U.S. Supreme Court. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 564, 564 & n.176, 593 (2016); Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (“[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”). ↑
See infra Section I.B. ↑
See infra notes 169–73 and accompanying text. ↑
See infra notes 180–85 and accompanying text. ↑
Id. ↑
Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *11 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)). ↑
Although pardons are a well-recognized equitable remedy, the discretion to grant them remains with the governor of a state or President of the United States, raising fundamentally different issues than judicially granted remedies. For this reason, pardons are beyond the scope of this Article’s discussion. See sources cited supra note 23. ↑
See Lollar, supra note 23. ↑
See, e.g., Lollar, supra note 23, at 317–19. ↑
Id. at 313–14, 327–48. ↑
Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Affs. 83, 87 (1993). ↑
See Lollar, supra note 23, at 316⁠–17. ↑
Nussbaum, supra note 36, at 85. Nussbaum identifies the ability of equity to both be lenient and flexible by the term epieikeia. Id. at 85⁠–86. ↑
Id. at 96. ↑
Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England

13, 24 (2010).

↑
Irit Samet, Equity: Conscience Goes to Market 11 (2018) (citing Carleton Kemp Allen, Law in the Making 389 (6th ed. 1958)). ↑
Id. (quoting Lift Capital Partners Pty. Ltd. v Merrill Lynch Int’l (2009) 253 ALR 482, 507 (Austl.)). ↑
Klinck, supra note 40, at 31; accord Mike Macnair, Equity and Conscience, 27 Oxford J. Legal Stud. 659, 661–62 (2007). ↑
Klinck, supra note 40, at 25. Dennis Klinck notes, however, that some “dissident[]” scholars disagree with this “probably predominant position.” Id. at 26. ↑
Id

.

at 3–4; Macnair, supra note 43, at 674. Although some were concerned about the subjectivity inherent in “conscience” as early as the sixteenth century, see Klinck, supra note 40, at 3–4, according to Klinck, “it is clear that at least pre-Reformation accounts of conscience included a significant objective dimension,” id. at 3, that “would ostensibly be easier to reconcile with its status as a juristic principle, a measure of law,” id. at 4. ↑
Klinck, supra note 40, at 31. ↑
Id

.

at 2, 5, 32–35 (discussing how conscience was initially grounded in a “divinely ordained and objective moral order,” resulting in a particular moral judgment where conscience provides the governing rule and the facts are applied to that rule); Macnair, supra note 43, at 661 (“Synderesis is the faculty of moral reasoning, and conscience is the application of this faculty to particular cases.”); Macnair, supra note 43, at 667 (“[T]here are some fairly clear indications that [in the 1450s] there was a fairly definite conception of what ‘conscience’ implied.”); Timothy A. O. Endicott, The Conscience of the King: Christopher St. German and Thomas More and the Development of English Equity, 47 U. Toronto Fac. L. Rev. 549, 552, 553 (1989) (noting how in the twelfth century, Thomas à Becket “made the Chancery into an office which set the law of the Church as the standard for the king’s conscience,” such that ecclesiastical chancellors “would resort to a conscience informed by the principles of the Church”); Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash. L. Rev. 429, 441–42 (2003); Irit Samet, What Conscience Can Do for Equity, 3 Juris. 13, 21 (2012) (discussing medieval perception that conscience has a universal presence with objective principles that inform it based on the divine law of reason). ↑
Macnair, supra note 43, at 661. ↑
Id. at 662. ↑
David W. Raack, A History of Injunctions in England Before 1700, 61 Ind. L.J. 539, 555–58, 563 (1986); Lollar, supra note 23, at 327–48. ↑
Raack, supra note 50, at 560 n.131; Edwin S. Mack, The Revival of Criminal Equity, 16 Harv. L. Rev. 389, 392 (1903). ↑
Raack, supra note 50, at 560 n.131; Mack, supra note 51, at 390. ↑
Mack, supra note 51, at 390. ↑
Klinck, supra note 40, at 169 (quoting Earl of Northumberland v. Bowes (1621), in 2 Cases Concerning Equity and the Courts of Equity 1550–1660 489 (W.H. Bryson ed., 2000)). ↑
Cf. Macnair, supra note 43, at 663 (describing how a “defendant in Chancery could demur to the plaintiff’s bill because there was no equity in it”). ↑
See, e.g., Raack, supra note 50, at 560 n.131; Mack, supra note 51, at 391–92; Note, Developments in the Law–Injunctions, 78 Harv. L. Rev. 994, 1013–14 (1965); John Norton Pomeroy, Jr., Equity, in 7 Modern American Law 61 (Eugene Allen Gilmore & William Charles Wermuth eds., 1914); F.W. Maitland, The Origin of Equity (II), in Equity: Also the Forms of Action at Common Law: Two Courses of Lectures 19–20 (A.H. Chaytor & W.J. Whittaker eds., 1910). ↑
Lollar, supra note 23, at 322 (quoting Mack, supra note 51, at 391). ↑
Id. (quoting 30A

C.J.S. Equity

§ 66 (2018)). ↑
Id. (quoting Graham v. Phinizy, 51 S.E.2d 451, 457 (Ga. 1949)). ↑
See, e.g., id. at 320–21; In re Sawyer, 124 U.S. 200, 210 (1888) (“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. . . . Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned.”). ↑
Lollar, supra note 23, at 322–23. ↑
See, e.g., id. at 313–14, 327–48; Samet

,

supra note 41, at 5; Caprice L. Roberts, Supreme Disgorgement, 68 Fla. L. Rev. 1413, 1415–20 (2016); Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997, 999–1000 (2015); Mark P. Gergen, John M. Golden & Henry E. Smith, The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions, 112 Colum. L. Rev. 203, 204 (2012). ↑
Lollar, supra note 23, at 327–48. ↑
Id. ↑
Samuel L. Bray, Equity and the Seventh Amendment 6, 10 & n.48 (Feb. 1, 2019) (unpublished manuscript), (available at https://papers.ssrn.com/sol3/papers.cfm?‌abstract_id=3237907 [https://perma.cc/5E2C-JNRN]). ↑
Raack, supra note 50, at 544. ↑
Id. ↑
Id. at 541–42. ↑
Id. at 544–45. ↑
John Norton Pomeroy, A Treatise on Equity Jurisprudence (Students’ Edition)

§ 175 (1907).

↑
Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 540–42, 546, 559 n.141 (2016). ↑
Id. at 535. ↑
Id. at 559. ↑
Id. at 551–53. ↑
Id. at 562–63. ↑
In re El Mujaddid, 563 F. App’x 874, 874 (3d Cir. 2014). ↑
Kerr v. U.S. Dist. Ct. for N.D. Cal., 426 U.S. 394, 402 (1976) (quoting Will v. United States, 389 U.S. 90, 95 (1967)). ↑
Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (quoting Kerr, 426 U.S. at 403). ↑
See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam). ↑
18 U.S.C. § 3771(e)(2)(A). ↑
Id. § 3771(a). ↑
Id. § 3771(d)(3), (e)(2). ↑
Id. § 3771(d)(3). ↑
See, e.g., Lewis v. U.S. Att’y Gen., No. 10-1624, 2010 WL 4069151 (D.D.C. Oct. 15, 2010). ↑
See, e.g., In re Linlor, 713 F. App’x 228 (4th Cir. 2018). ↑
These are so common that a Westlaw search for “writ of mandamus” within the same paragraph as 18 U.S.C. § 3771, the Crime Victims Rights Act, returned 10,000 hits; a similar search but with 18 U.S.C. § 3771 within a sentence of “writ of mandamus” returned similar results. ↑
United States v. Binkholder (Binkholder II), 909 F.3d 215, 216 (8th Cir. 2018). ↑
United States v. Binkholder (Binkholder I), 832 F.3d 923, 928 (8th Cir. 2016). ↑
Id. ↑
Id. ↑
Id. ↑
Id. at 928–29. The Eighth Circuit later clarified, however, that being declared a crime victim under the CVRA “is not necessarily dispositive of who is a victim under the Sentencing Guidelines” and instructed the lower court to make separate inquiries based on the respective definitions before enhancing Binkholder’s sentence based on the amount of the M.U.’s losses. Id. at 929–30. On remand, the district court reached the conclusion that M.U. was a crime victim both under the CVRA and under the relevant sentencing guidelines and sentenced Binkholder accordingly. Binkholder II, 909 F.3d at 217. ↑
Kenna v. U.S. Dist. Ct. for C.D. Cal., 435 F.3d 1011, 1012–13 (9th Cir. 2006). ↑
Id. at 1013. ↑
Id. ↑
Id. ↑
Id. ↑
Id. at 1016, 1018. ↑
See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Wheat v. United States, 486 U.S. 153, 159 (1988). That right does not extend to those who cannot afford to hire counsel. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989) (quoting Wheat, 486 U.S. at 159) (“Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. ‘[A] defendant may not insist on representation by an attorney he cannot afford.’”). ↑
United States v. Santos, 201 F.3d 953, 957 (7th Cir. 2000). ↑
Id. ↑
Id. at 957–58. ↑
Id. at 958. ↑
Id. at 957. ↑
Id. at 958. ↑
Id. at 957–58. ↑
Id. at 960–61. ↑
Id. ↑
Id. at 959. ↑
Bridgers v. Kent, No. WR-45,179-03, 2006 WL 8430864, at *1 (Tex. Crim. App. Nov. 13, 2006). ↑
Id. ↑
Id. See also Tex. Code Crim. Proc. Ann. art. 11.071 (West 2005) (requiring the court of criminal appeals to “adopt rules for the appointment of attorneys as counsel” in death penalty cases and the convicting court to appoint an attorney as counsel “only if the appointment is approved by the court of criminal appeals in any manner provided by those rules”). ↑
Bridgers, 2006 WL 8430864, at *1. ↑
Id. at *1 n.1. ↑
See, e.g., State ex rel. Garvey v. County Bd. Of Comm’rs of Sarpy Co., 573 N.W.2d 747 (Ne. 1998); Kuren v. Luzerne County, 146 A.3d 715 (Pa. 2016) (seeking writ of mandamus to require the county to fund the public defender office; in this case, however, the former chief public defender, along with several former defendants, sought the writ). ↑
See, e.g., Hurrell-Harring v. State, 930 N.E.2d 217, 219, 222 (N.Y. 2010); Kuren, 146 A.3d at 718; Church v. Missouri, 913 F.3d 736, 741–42 (8th Cir. 2019); Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1123–24 (W.D. Wash. 2013). ↑
Twenty-Fourth Jud. Dist. Indigent Def. Bd. v. Molaison, 522 So. 2d. 177, 177–78 (La. Ct. App. 1988). ↑
Id. at 178. ↑
Id. at 181. ↑
Id. ↑
Rachel Moran, Contesting Police Credibility, 93 Wash. L. Rev. 1339, 1340–42 (2018). ↑
See, e.g., State ex rel. Glover v. Lashutka, No. 96APD10-1433, 1996 WL 751548 (Ohio Ct. App. Dec. 31, 1996); In re Willard, No. 07-16-00274-CR, 2016 WL 4158024 (Tx. App. Aug. 3, 2016). ↑
Moran, supra note 121, at 1368. ↑
Id. at 1370–76. ↑
Id. at 1372. ↑
Id. at 1373. ↑
See, e.g., Tex. Gov’t Code Ann. § 552.103 (West 1999); State ex rel. Coleman v. City of Cincinnati, 566 N.E.2d 151, 152 (Ohio 1991) (per curiam) (discussing Ohio’s exemption of records containing information related to an anticipated or ongoing case from the state’s general public records rule). ↑
Moran, supra note 121, at 1373. ↑
Long v. Municipal Ct., 128 Cal. Rptr. 918, 918 (Ct. App. 1976). ↑
Id. ↑
Id. at 919. ↑
Id. ↑
Id. at 919–20. ↑
State ex rel. Caster v. City of Columbus, 89 N.E.3d 598, 599–601 (Ohio 2016). ↑
Id. at 600. ↑
Id. ↑
Id. at 599–600. ↑
Id. at 601. ↑
Id. at 600. ↑
Id. at 602. ↑
Id. at 609. The court continued to recognize exceptions, such as the protection of the identity of confidential informants or specific confidential investigatory techniques. Id. ↑
Flipping the script, in one instance, the police department and city of Austin, Texas, obtained a conditional writ of mandamus challenging a lower court’s denial of their motion to quash a capital defendant’s subpoena for police personnel records. In re Moore, 615 S.W.3d 162 (Tx. Crim. App. 2019). ↑
See, e.g., Giovanni B. v. Superior Ct., 60 Cal. Rptr. 3d 469, 476 (Ct. App. 2007) (denying writ because the trial court was judged not to have abused its discretion in rejecting an in camera review of police records); State ex rel. Donovan v. Portage Cnty. Sheriff’s Dept., No. 90-P-2166, 1991 WL 260193, at *1–2 (Ohio Ct. App. Dec. 6, 1991) (granting writ related to information that purportedly would endanger the safety of law enforcement officers, but denying writ as to confidential investigatory techniques); Whittle v. Munshower, 155 A.2d 670, 671 (Md. 1959) (dismissing appeal as premature but addressing merits of the writ of mandamus claim); cf. Moran, supra note 121, at 1368–74 (discussing range of state statutes governing disclosure of police records). ↑
State ex rel. Keller v. Cox, 707 N.E.2d 931, 934 (Ohio 1999) (per curiam). ↑
Cf. Moran, supra note 121, at 1374–77 (discussing how even potential constitutional implications of failing to disclose police personnel files do not necessarily render the records disclosable under state statutory law). ↑
U.S. Const. amend. V (“No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”). ↑
United States v. Dean, 752 F.2d 535, 540 (11th Cir. 1985) (quoting United States v. Denson, 588 F.2d 1112, 1126 (5th Cir. 1979), aff’d in part and modified in part en banc, 603 F.2d 1143 (5th Cir. 1979)). ↑
18 U.S.C. § 3731. ↑
United States v. Wilson, 420 U.S. 332, 337 (1975). ↑
See, e.g., United States v. Choi, 818 F. Supp. 2d 79, 84, 87 (D.D.C. 2011). ↑
In re United States, 397 F.3d 274, 278, 287 (5th Cir. 2005) (per curiam). ↑
District of Columbia v. Fitzgerald, 953 A.2d 288, 291–92 (D.C. 2008) (per curiam), amended on denial of reh’g, 964 A.2d 1281 (D.C. 2009) (per curiam). ↑
Choi, 818 F. Supp. 2d at 82. ↑
See generally United States v. Fei Ye, 436 F.3d 1117 (9th Cir. 2006) (granting writ after trial judge ordered that defendants could depose the government’s expert witnesses prior to trial); United States v. Vinyard, 539 F.3d 589 (7th Cir. 2008) (granting writ after trial judge sua sponte ordered defendant’s release from incarceration and vacated his plea agreement and sentence); United States v. U.S. Dist. Ct. for E. Dist. Cal., 464 F.3d 1065 (9th Cir. 2006) (per curiam) (granting writ after trial judge granted defense motion for a bench trial without government’s consent); United States v. Amante, 418 F.3d 220 (2d Cir. 2005) (granting writ after judge sua sponte bifurcated trial on the elements of a single count charged). ↑
See, e.g., In re United States, 397 F.3d at 278; Choi, 818 F. Supp. 2d at 82. ↑
Choi, 818 F. Supp. 2d at 83–87. ↑
United States v. Farnsworth, 456 F.3d 394, 396 (3d Cir. 2006). ↑
In re People, 49 V.I. 297, 300 (2007). ↑
28 U.S.C. § 2241; see also Nancy J. King, Fred L. Cheesman II & Brian J. Ostrom, Executive Summary: Habeas Litigation in U.S. District Courts

1 (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/219558.pdf [https://perma.cc/D9HU-35DA]. ↑
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C., including §§ 2254, 2255). ↑
See, e.g., Teague v. Lane, 489 U.S. 288 (1989). ↑
See, e.g., Eve Brensike Primus, Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State-Court Criminal Convictions, 61 Ariz. L. Rev.

291, 293 (2019); Eve Brensike Primus, Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time, Am. Const. Soc’y Issue Brief (July 2018), https://acslaw.org/wp-content/uploads/2018/07/July-2018-Primus-Issue-Brief-Habeas-Corpus.pdf [https://perma.cc/TM4T-WXT5]; Leah M. Litman, Legal Innocence and Federal Habeas, 104 Va. L. Rev. 417 (2018). ↑
David Wolitz, The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One’s Name, 2009 BYU L. Rev.

1277, 1287 (2009) (explaining that coram nobis is the “companion writ to habeas corpus . . . in essence, habeas for those not in federal custody”). ↑
William G. Wheatley, Coram Nobis Practice in Criminal Cases, 18 Am. Jur. Trials 1, § 1 (1971; updated 2020) (footnote omitted). ↑
Wolitz, supra note 163, at 1283. ↑
United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007). ↑
Wolitz, supra note 163, at 1283. ↑
7 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 28.9(a) at 378 (4th ed. 2015) (citation and internal quotation marks omitted); Wolitz, supra note 163, at 1287 (“[In United States v. Morgan, 346 U.S. 502 (1954)], the Court effectively created a companion writ to habeas corpus. Coram nobis became, in essence, habeas for those not in federal custody.”). ↑
Wolitz, supra note 163, at 1283–84; Kathleen M. Bure, Note, Coram Nobis and State v. Stinney: Why South Carolina Should Revitalize America’s Legal “Hail Mary,” 68 S.C. L. Rev. 917, 923 (2017). ↑
United States v. Denedo, 556 U.S. 904, 912–13 (2009); United States v. Morgan, 346 U.S. 502, 512 (1954) (indicating writ is available for “errors of the most fundamental character”) (citation and internal quotation marks omitted); LaFave et al., supra note 168, at 378; Wolitz, supra note 163, at 1286 (“[Morgan] transformed coram nobis from its traditional function as a means for curing factual errors, unknown to the trial court, to a new function of curing any error of ‘the most fundamental character,’ including legal error.”). ↑
See, e.g., United States v. Akinsade, 686 F.3d 248, 256 (4th Cir. 2012) (ineffective assistance of counsel is a “fundamental error necessitating coram nobis relief”); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (granting relief after the Supreme Court found mail fraud statute did not cover acts for which defendants were convicted); Wolitz, supra note 163, at 1289–91 (discussing federal circuit courts’ application of Morgan and the type of claims these courts tend to consider as triggering coram nobis relief). ↑
See, e.g., State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015) (granting writ based on ineffective assistance of counsel); State v. Sinclair, 49 A.3d 152, 157–58 (Vt. 2012) (concluding coram nobis can be used to challenge defective criminal convictions); Magnus v. United States, 11 A.3d 237, 246 (D.C. 2011) (“[E]ven if the error claimed by Magnus was a legal one . . . he still may pursue coram nobis relief.”); Skok v. State, 760 A.2d 647, 660 (Md. 2000) (holding that the scope of coram nobis includes errors of a constitutional or fundamental nature on public policy grounds); Chambers v. State, 158 So. 153, 158–59 (Fla. 1934) (holding that coram nobis can be used where there is evidence of coerced confessions); Bure, supra note 169, at 929 (noting court granted coram nobis relief based on coerced confession, ineffective assistance of counsel, failure to select an impartial jury, and execution of a minor). ↑
346 U.S. at 512 (citation and internal quotation marks omitted). ↑
Wolitz, supra note 163, at 1284. ↑
Id. ↑
Id. at 1289; see also United States v. Doe, 867 F.2d 986, 988, 990 (7th Cir. 1989) (denying petition for writ because defendant could not show erroneous jury instructions would have justified habeas relief); Pitts v. United States, 763 F.2d 197, 199 n.1 (6th Cir. 1985) (per curiam) (noting the standards for granting relief under a habeas statute and through a writ of coram nobis are “substantially the same”); United States v. Little, 608 F.2d 296, 299 (8th Cir. 1979) (interpreting defendant’s appeal from denial of coram nobis relief to be a petition under a habeas statute since he remained in custody and the two remedies were “substantially equivalent”). ↑
Wolitz, supra note 163, at 1290. ↑
See, e.g., Sibron v. New York, 392 U.S. 40, 55, 57 (1968). ↑
See, e.g., Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987). ↑
United States v. Keane, 852 F.2d 199 (7th Cir. 1988); United States v. Bush, 888 F.2d 1145 (7th Cir. 1989); United States v. Craig, 907 F.2d 653 (7th Cir. 1990). ↑
Wolitz, supra note 163, at 1292–99. ↑
Keane, 852 F.2d at 203 (“[Petitioner] must demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences).”). ↑
Craig, 907 F.2d at 658. ↑
Keane, 852 F.2d at 203; Bush, 888 F.2d at 1148–50. ↑
See United States v. Castano, 906 F.3d 458, 463 (6th Cir. 2018); United States v. Hernandez, 94 F.3d 606, 613 n.5 (10th Cir. 1996); Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993); Nicks v. United States 955 F.2d 161, 167 (2d Cir. 1992); United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992); United States v. Stoneman, 870 F.2d 102, 106 (3d Cir. 1989); see also Stewart v. United States, 446 F.2d 42, 43–44 (8th Cir. 1971) (per curiam) (denying coram nobis relief for defendant who did not demonstrate “present adverse consequences”). ↑
Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987) (citing Sibron v. New York, 392 U.S. 40, 55–57 (1968)). ↑
Id. at 606. ↑
Id. ↑
Korematsu v. United States, 584 F. Supp. 1406, 1409 (N.D. Cal. 1984); Hirabayashi, 828 F.2d at 592. ↑
Margaret Chon, Remembering and Repairing: The Error Before Us, In Our Presence, 8 Seattle J. for Soc. Just. 643, 646 (2010). ↑
Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943). Cf. Ex parte Endo, 323 U.S. 283 (1944) (declining to address the constitutional arguments, the Court ultimately ruled in favor of Endo’s challenge on statutory grounds). ↑
Hirabayashi, 320 U.S. at 100–01; Korematsu, 323 U.S. at 219–20. ↑
Korematsu, 584 F. Supp. at 1409–10; Hirabayashi, 828 F.2d at 593. ↑
Korematsu, 584 F. Supp. at 1410. See also Hirabayashi v. United States, 627 F. Supp. 1445, 1447 (W.D. Wash. 1986) (detailing the evidence in Hirabayashi’s case), aff’d in part, rev’d in part by Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987). The newly discovered evidence was a suppressed draft of a wartime report that specified the real rationale behind the curfew and exclusion orders aimed at Japanese Americans during the war: racial prejudice, not military exigency. Hirabayashi, 828 F.2d at 598; Wolitz, supra note 163, at 1300. In fact, contrary to the representations made to the Supreme Court during the war-era cases, there was no military basis for the exclusion order. Hirabayashi, 828 F.2d at 598; Korematsu, 584 F. Supp. at 1416–17. ↑
Korematsu, 584 F. Supp. at 1419. ↑
Hirabayashi, 828 F.2d at 608. ↑
United States v. Peter, 310 F.3d 709, 715–16 (11th Cir. 2002) (per curiam) (quoting Spencer v. Kemna, 523 U.S. 1, 12 (1998)) (“[I]t is an obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.”); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (“[P]etitioners . . . would face the remainder of their lives branded as criminals . . . .”). ↑
Mandel, 862 F.2d at 1075 n.12 (discussing how “[c]onviction of a felony imposes a status upon a person” that makes him “vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities”). ↑
Hirabayashi, 828 F.2d at 606–07. The U.S. Court of Appeals for the Eleventh Circuit has never addressed this issue. ↑
Steven J. Mulroy, The Safety Net: Applying Coram Nobis Law to Prevent the Execution of the Innocent, 11 Va. J. Soc. Pol’y & L. 1, 7 & n.33 (2003); see also Sinclair v. Louisiana, 679 F.2d 513, 514–15 (5th Cir. 1982) (discussing the scope of the prohibition on using coram nobis to attack state criminal judgments); Brooker v. Arkansas, 380 F.2d 240, 244 (8th Cir. 1967) (same); Rivenburgh v. Utah, 299 F.2d 842, 843 (10th Cir. 1962) (same). ↑
State v. Sinclair, 49 A.3d 152, 156 (Vt. 2012) (quotations and citation omitted); see also Skok v. State, 760 A.2d 647, 658–59 (Md. 2000) (explaining that while it was not binding on them, most state appellate courts that have considered Morgan have followed it). ↑
Sinclair, 49 A.3d at 156. ↑
Bure, supra note 169, at 927–29. ↑
Id. at 927. ↑
Id. ↑
Id. ↑
Id. at 928. ↑
Id. ↑
Id. ↑
Id. at 927–28. ↑
Id. at 928. ↑
Id. ↑
Id. at 927–28. Stinney’s siblings had standing to assert their brother’s rights under Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629 (1991). See Bure, supra note 169, at 925 & n.58. ↑
Bure, supra note 169, at 929. ↑
Id. ↑
See, e.g., Magnus v. United States, 11 A.3d 237, 246–47 (D.C. 2011); State v. Ledezma, No. IK83-09-0062-R1, 1989 WL 64151, at *2 (Del. Super. Ct. May 3, 1989). ↑
J. Thomas Sullivan, Brady-Based Prosecutorial Misconduct Claims, Buckley, and the Arkansas Coram Nobis Remedy, 64 Ark. L. Rev. 561, 561 & n.1 (2011). ↑
An Alford plea allows a defendant to enter a guilty plea without admitting guilt. See North Carolina v. Alford, 400 U.S. 25 (1970). ↑
State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015). Specifically, Mr. Hutton’s trial counsel failed to inform him of the deportation consequences of his criminal conviction. Id. ↑
Ira P. Robbins, The Revitalization of the Common-Law Civil Writ of Audita Querela as a Postconviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 Geo. Immigr. L.J. 643, 645, 647 (1992). ↑
Caleb J. Fountain, Note, Audita Querela and the Limits of Federal Nonretroactivity, 70 N.Y.U. Ann. Surv. Am. L. 203, 211–14 (2014). ↑
Id. at 207. ↑
Robbins, supra note 220, at 650. ↑
Id. at 650–51, 653. ↑
Id. at 653. ↑
Id. at 656. ↑
Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *6 (D. Utah Apr. 18, 2006); United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. La. 1988); United States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988); United States v. Khalaf, 116 F. Supp. 2d 210 (D. Mass. 1999); cf. Ejelonu v. I.N.S., 355 F.3d 539, 541 (6th Cir. 2004) (granting a petition for writ of audita querela for a legal immigrant INS sought to deport to Nigeria, though the opinion was later vacated), reh’g en banc granted, opinion vacated, No. 01-3928, 2004 U.S. App. LEXIS 15581 (6th Cir. July 27, 2004), appeal dismissed (Oct. 18, 2004). ↑
Villafranco, 2006 WL 1049114, at *7. ↑
Id. (quoting United States v. Fonseca-Martinez, 36 F.3d 62, 65 (9th Cir. 1994)). ↑
Doe v. I.N.S., 120 F.3d 200, 204 (9th Cir. 1997). ↑
United States v. Ayala, 894 F.2d 425, 426 (D.C. Cir. 1990). ↑
United States v. Holder, 936 F.2d 1, 5 (1st Cir. 1991); Ayala, 894 F.2d at 426. ↑
See, e.g., Robbins, supra note 220, at 681–82; Ejelonu v. I.N.S., 355 F.3d 539, 546–47 (6th Cir. 2004); Villafranco, 2006 WL 1049114, at *11. ↑
Villafranco, 2006 WL 1049114, at *11 (quoting United States v. Reyes, 945 F.2d 862, 866 (5th Cir. 1991)). ↑
Id.; Ejelonu, 355 F.3d at 548. ↑
Villafranco, 2006 WL 1049114, at *10 (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)). ↑
Villafranco, 2006 WL 1049114, at *11. ↑
543 U.S. 220 (2005). ↑
Id. at 246. ↑
Robbins, supra note 220, at 672. ↑
United States v. Ghebreziabher, 701 F. Supp. 115, 116–17 (E.D. La. 1988). ↑
Id. at 116. ↑
Remarking that “[i]t is apparent that he was approached by the other individual involved to accept the food stamps initially,” the court continued:

Mr. Ghebreziabher has been an industrious member of this community for almost ten years. He has four United States citizen children who will be deprived of his support if he should be deported. He has realized the American dream, owning his own home . . . . Except for these 3 incidents, he has no convictions. His former employer, a subsidiary of a shipyard where he worked as a carpenter and joiner, thought well of him and found him to be hard-working . . . . It is also likely that his family will suffer tremendously should he be deported and removed from the home.

Id. at 116–17. ↑
United States v. Salgado, 692 F. Supp. 1265, 1268 (E.D. Wash. 1988). ↑
Id. ↑
Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified in scattered sections of 8 U.S.C. and 18 U.S.C., including at 8 U.S.C. §§ 1229, 1366–74). ↑
One other person initially received audita querela relief even after the passage of IIRIRA, as her request for immigration relief was quite distinct from the circumstances of the three individuals discussed above. Ijeoma Ejelonu petitioned for relief after the Immigration and Naturalization Service (now Immigration and Customs Enforcement) inexplicably delayed processing her application for citizenship until after her eighteenth birthday, denying her citizenship and threatening to begin deportation proceedings against her. Ejelonu v. I.N.S., 355 F.3d 539, 541 (6th Cir. 2004), rehearing en banc granted, opinion vacated, appeal dismissed. Ejelonu, originally from Nigeria, legally immigrated to the U.S. at age six with her parents and two younger sisters, all of whom were granted citizenship. Ejelonu graduated with honors from her high school, began college at Wayne State University, and maintained steady employment until the time of her arrest on criminal charges. Id. at 541–42. At age seventeen, she was charged as a juvenile with two counts of embezzlement. Id. at 542. She entered into a youthful offender program that permitted her to plead guilty to the charge, but without a judgment of conviction being entered. Id. at 542–43.

Despite her record being sealed, someone at INS obtained a copy of the record and began deportation proceedings against Ejelonu. Id. at 543. Authorities raided the Ejelonu home, seized Ejelonu, and held her for weeks, without any way to contact her family. Id. at 543. An immigration judge found her deportable for having a “conviction” for a crime of moral turpitude, and the Bureau of Immigration Appeals dismissed her appeal. Id.

Ejelonu petitioned the U.S. Court of Appeals for the Sixth Circuit for relief from deportation proceedings, which the court construed as a petition for audita querela. Id. at 544. The court found, “[w]e have no trouble concluding that the equities in this case overwhelmingly favor Petitioner—not just to the point where a reasonable person might sympathize with her plight, but to extent that to deport her under such circumstances would shock the conscience.” Id. at 550. It continued, “Audita querela is appropriate because it would be contrary to justice[] to allow the collateral consequences of Petitioner’s Youthful Trainee status to justify her deportation.” Id. at 551–52 (quotations and citation omitted). The writ prohibited the Department of Homeland Security from using Ejelonu’s youthful trainee status in determining her eligibility for deportation. Id. at 552.

Ultimately, the record is unclear as to what happened with Ejelonu. After granting a motion for rehearing en banc and vacating the panel’s opinion, the en banc court dismissed Ejelonu’s appeal by stipulation of the parties ten months after the initial decision. Ejelonu v. I.N.S., No. 01-3928, 2004 U.S. App. LEXIS 15581, at *1 (6th Cir. July 27, 2004), appeal dismissed (Oct. 18, 2004); Sanchez-Montes v. Dept. Homeland Security, No. 8:08-CV-157-T-27-TBM, 2008 WL 298967 n.10 (M.D. Fl. Jan. 31, 2008) (noting the appeal was dismissed by stipulation of the parties). Little is in the record that provides any indication as to why the parties decided to proceed in this manner. ↑
Kessack v. United States, No. C05-1828Z, 2008 WL 189679, at *1 (W.D. Wash. Jan. 18, 2008). ↑
Id. ↑
Id. at *1–3. ↑
Id. at *3. ↑
Id. at *2 (quotations and citation omitted). ↑
Id. at *5 (quotations and citation omitted). ↑
Id. (quotations and citation omitted). ↑
Id. at *6–7. ↑
United States v. Kenney, No. 99-cr-0280, 2017 WL 621238, at *1 (M.D. Pa. Feb. 15, 2017). ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. at *2. ↑
Id. ↑
Id. at *4. ↑
See, e.g., State v. Rosenfield, 142 A.3d 1069, 1076 n.6 (Vt. 2016) (“There is also a strong possibility that the related doctrine of audita querela can be utilized to collaterally attack defendant’s conviction.”); Commonwealth v. Mubarak, 68 Va. Cir. 422 (2005) (granting audita querela petition); Pitts v. State, 501 S.W.3d 803, 804 (Ark. 2016) (granting petitioner’s request to reinvest trial court with jurisdiction to pursue writ of audita querela or writ of coram nobis); Balsley v. Commonwealth, 428 S.W.2d 614, 616–17 (Ky. 1967) (explaining that audita querela and coram nobis are preserved in Kentucky law). ↑
See, e.g., State v. Hinson, 2006 WL 337031, at *2–3 (Del. Super. Ct. Feb. 10, 2006); State v. Ali, 32 A.3d 1019, 1024 (Me. 2011); State v. Davis, No. 96,688, 2007 WL 2080461, at *1 (Kan. Ct. App. July 20, 2007) (per curiam); Huston v. State, 272 S.W.3d 420, 421 (Mo. Ct. App. 2008); State v. Myers, No. 2017-UP-260, 2017 WL 4641444, at *1 (S.C. Ct. App. June 28, 2017). ↑
See, e.g., In re Sawyer, 124 U.S. 200, 210 (1888) (“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. . . . Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned.”). ↑
Compare Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History, 86 Fordham L. Rev. 697 (2017) (discussing how crafters of the Federal Rules of Criminal Procedure made the intentional decision to ground them in legal rules and principles rather than equitable ones), with Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987) (discussing how the Federal Rules of Civil Procedure were crafted to embrace equitable rules and principles). ↑
Meyn, supra note 267, at 699; Ion Meyn, Constructing Separate and Unequal Courtrooms, 63 Ariz. L. Rev. (forthcoming 2021) (on file with author), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3657250 [https://perma.cc/VA7S-D8C9] [hereinafter Meyn, Separate and Unequal]. ↑
See Meyn, Separate and Unequal, supra note 268 (discussing why and how federal criminal procedure rules ended up diverging from civil procedural rules to the advantage of the prosecution and disadvantage of the defense). ↑
According to several recent studies, fewer than 3% of state and federal criminal cases result in a jury trial. Nat’l Assoc. Crim. Def. Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It 5 & n.2 (2018); see also Hon. Robert J. Conrad, Jr. & Katy L. Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges, 86 Geo. Wash. L. Rev. 99, 102–04 (2018) (arguing that what were once trial judges and criminal trial attorneys now function more as “sentencing judges” and “sentencing advocates,” respectively). ↑
See, e.g., Meyn, supra note 267, at 732 (noting a “historical resistance to considering the rights of a criminal defendant”); Meyn, Separate and Unequal, supra note 268, at 3. ↑
See, e.g., Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899 (2019); James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account, 94 N.Y.U. L. Rev. 1465 (2019); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010). ↑
Dennis Childs, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary

77 (2015);

Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II 99 (2008); Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation 99–100 (1998). ↑
Blackmon, supra note 273, at 64, 66. ↑
Pope, supra note 272, at 1528–29. ↑
Id. at 1529; Meyn, Separate and Unequal, supra note 268, at 3. ↑
Wendy Sawyer & Peter Wagner, Prison Pol’y Initiative, Mass Incarceration: The Whole Pie 2020 (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.‌cc/Q7PB-A4H6]. ↑
See, e.g., Nazgol Ghandnoosh, The Sentencing Project, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies (Sept. 3, 2014), https://www.sentencingproject.org/publications/race-and-punishment-racial-perceptions-of-crime-and-support-for-punitive-policies/ [https://perma.cc/GD4R-J86L]. ↑
See, e.g., Rafael Prieto Curiel & Stephen Richard Bishop, Fear of Crime: The Impact of Different Distributions of Victimisation, Palgrave Comm (Apr. 17, 2018), https://doi.org/10.1057/s41599-018-0094-8 [https://perma.cc/T6G6-NSGG]. ↑
Id at 2. ↑
Ghandnoosh

,

supra note 278. ↑
See, e.g., Meyn, supra note 267, at 722 (quoting Hearing Before the Advisory Committee on Rules of Criminal Procedure, United States Supreme Court at 466 (Sept. 8–9, 1941) (statement of Asst. Att’y Gen. Holtzoff)). ↑
Jerome Hall, Objectives of Federal Criminal Procedural Revision, 51 Yale L.J. 723, 730 (1942). ↑
Id. at 728. ↑
Id. ↑
See Anna Roberts, Convictions as Guilt, 88 Fordham L. Rev. 2501 (2020); Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987 (2014). ↑
Bowers, supra note 286, at 997. ↑
Id. at 999. Bowers takes the accuracy of the guilt determination as the key; Roberts, meanwhile, draws even the accuracy of guilt determinations into question. See Roberts, supra note 286. ↑
Any doubt about this should be put to rest by the judicial and legislative responses to the so-called “progressive prosecutors” who have been elected in recent years. See, e.g., Richard A. Oppel Jr., These Prosecutors Promised Change. Their Power Is Being Stripped Away, N.Y. Times (updated Dec. 2, 2019), https://www.nytimes.com/2019/11/25/us/prosecutors-criminal-justice.html [https://perma.cc/54YQ-2FT5]; John Pfaff, A No-Holds-Barred Assault on Prosecutors, Appeal (Aug. 13, 2019), https://theappeal.org/bill-barr-prosecutors/ [https://perma.cc/8SNZ-P4DU]; Soares v. State, 121 N.Y.S.3d 790, 799–800 (N.Y. Sup. Ct. 2020). ↑
I am drawing here on Anna Roberts’s definitions of “legal guilt” and “factual guilt.” She defines “legal guilt” as “a procedurally valid conviction.” Anna Roberts, Arrests as Guilt, 70 Ala. L. Rev. 987, 994 (2019). By contrast, “factual guilt” requires a person to have committed the crime, meaning the person had the requisite actus reus and mens rea and no defense that would negate her guilt. Id. at 990. ↑
See, e.g., Blackmon, supra note 273, at

7, 67

(noting the lack of process, including the pretrial practice of “confess[ing] judgment” for Black men who were dubiously convicted of crimes and then subjected to forced labor)

.

↑
See, e.g., House v. Bell, 547 U.S. 518, 522 (2006) (finding that a convicted man claiming actual innocence had met the stringent requirements necessary to proceed with a habeas appeal despite the procedural default rule); Herrera v. Collins, 506 U.S. 390, 400 (1993) (noting that claims of actual innocence based on newly discovered evidence do not give ground to federal habeas relief without an independent constitutional violation because the purpose of federal habeas is to remedy constitutional violations, not factual errors). ↑
Yet, as Roberts cogently points out,

Our system for determining legal guilt, which sets up various processes and protections that must be honored in order to permit a valid declaration of legal guilt, is the primary proxy that we have for factual guilt. For all its imperfections, it is the best that we currently have. Only an all-seeing, all-knowing entity could speak with absolute accuracy and authority on factual guilt, and as mentioned earlier, even she would be unable to provide a definitive answer regarding certain charges that have an inescapably subjective component.

Roberts, supra note 290, at 994–95 (footnotes omitted). ↑
See, e.g., Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007); John F. Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017). ↑
543 U.S. 220 (2005). ↑
See, e.g., Marvin E. Frankel, Sentencing Guidelines: A Need for Creative Collaboration, 101 Yale L.J. 2043, 2044 (1992). ↑
Booker, 543 U.S. at 236–39, 244. ↑
See, e.g., William Rhodes, Ryan Kling, Jeremy Luallen & Christina Dyous, Federal Sentencing Disparity

: 2005

–20

12

at 67–68 (Bureau of Just. Stats., Working Paper, WP-2015:01, 2015) (noting that racial disparity in sentencing between Black and White males has increased since Booker). ↑
Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93, 111–22 (2014). ↑
Klinck, supra note 40, at 5. ↑
Id. ↑
Id. at 34. ↑
Id. at 33. ↑
Id. at 38. ↑
Id. at 268 (“If conscience relates, more or less exhaustively, to one’s whole spiritual condition, to whether one is in a state of grace or not, then it fits awkwardly with a concept of law as essentially general, externally-dictated rules.”). ↑
Id. at 207. ↑
Id. at 208. ↑
Id. ↑
Id. at 224. ↑
In order to ensure equity’s survival, the chancery had to effectively respond to these criticisms. The chancery had to “present what it dispensed as being more like regular law.” Id. at 225. “[R]egular equity,” in the words of Lord Nottingham, had to “speak as much to order and consistency of process” as common law, which meant that equity needed to follow some rules, both procedural and substantive. Id. at 253. Thus arose a distinction between “regular” or “chancery” equity and a broader conception of equity. “Regular equity,” or “chancery equity” became regulated and ruled, less strictly than the common law initially, id. at 253–54, but ultimately, in a manner not so different. ↑
Samet

,

supra note 41, at 2. ↑
Id. at 10. ↑
Id. at 11. ↑
Id. at 44. ↑
Id. at 46. ↑
Id. at 49. ↑
Id. at 52. ↑
Id. at 57 (quoting Jeremy Waldron, Inhuman and Degrading Treatment: The Words Themselves, 23 Can. J. L. & Juris. 269, 284 (2010)). ↑
Id. at 58–59. ↑
Id. at 61. ↑
572 U.S. 701, 708 (2014) (citing Weems v. United States, 217 U.S. 349, 378 (1910) & Trop v. Dulles, 356 U.S. 86, 101 (1958)) (internal quotations omitted). ↑
Of course, many would assert that the Supreme Court has abdicated its moral duty with regard to its Eighth Amendment “evolving standards of decency” jurisprudence. Cf. United States v. Higgs, No. 20-927, slip op. at 1–2, 5–8, 10 (U.S. Jan. 12, 2021) (Sotomayor, J., dissenting) (criticizing the Court’s recent decisions not to intervene in cases involving federal exactions, including in a case involving a likely successful Eighth Amendment challenge). ↑
Romar v. Fresno Cmty. Hosp. & Med. Ctr., 583 F. Supp. 2d 1179, 1186 (E.D. Cal. 2008) (citing Richardson v. Kier, 34 Cal. 63, 75 (1867)). ↑
Cortney E. Lollar, Punitive Compensation, 51 Tulsa L. Rev.

99, 112–13 (2015) (discussing empirical evidence that judges still tend to be White, male, older than the average American, and much more educated). ↑
Pope, supra note 272, at 1527. ↑
163 U.S. 537 (1896). ↑
323 U.S. 214 (1944). ↑
Plessy, 163 U.S. at 543. ↑
Id. at 550–51 (emphasis added). ↑
Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954). ↑
Korematsu, 323 U.S. at 216, 218. ↑
Korematsu v. United States, 584 F. Supp. 1406, 1416–19 (N.D. Cal. 1984). ↑
Id. at 1419. ↑
Id. at 1413. ↑
Samet

,

supra note 41, at 61. ↑
See, e.g., Susan A. Bandes, The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial and Due Process, 3 Law, Culture & Humans 293, 295–97 (2007); Michael Tonry, Rethinking Unthinkable Punishment Policies in America, 46 UCLA L. Rev. 1751, 1781–86 (1999); Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke & Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order 3–28 (1978); Stanley Cohen, Folk Devils & Moral Panics: The Creation of the Mods and Rockers (Routledge Classics 2011) (1972). ↑
Bandes, supra note 336, at 294 (footnotes omitted). ↑
Tonry, supra note 336, at 1787 (footnotes omitted). ↑
Id. at 1787–88. ↑
Id. at 1788. ↑
Bandes, supra note 336, at 294. ↑
Id. at 301. ↑
Id. at 294. ↑
Id. at 310 (quoting Scott Turow, Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty 34 (2003)). ↑
Id. at 309–10, 312. ↑
Id. at 313–14. ↑
Id. at 296. ↑
Tonry, supra note 336, at 1753. ↑
Id. at 1756. ↑
Bandes, supra note 336, at 296, 315–16. ↑
In the criminal legal system, morality will almost always be at play because the criminal law is anchored in morality; it is a “functional mechanism that helps set and then illuminate the boundaries of acceptable behavior.” Tonry, supra note 336, at 1764. ↑
Samet

,

supra note 41, at 6 (“[A] clear division between Equity and Common Law in the US is mostly restricted to the area of remedies . . . .”). This is distinct from England and Wales, where equity affects large areas of substantive private law. Id. ↑
Id. at 16–17. ↑
Bey v. United States, Crim. No. 03-18-1, 2009 WL 1033655, at *1 (D. Del. Apr. 16, 2009). ↑
The Second Chance Act of 2007, 18 U.S.C. §§ 3621, 3624. ↑
Bey, 2009 WL 1033655, at *3 n.1. ↑
Id. at *3. ↑
Id. Although Bey’s juvenile charges included attempted robbery, assault on a mail carrier, and obstructing passage of the U.S. mail, he asserted the obstructing passage charge was the only count of conviction. Id. ↑
Id. ↑
Id. ↑
Id. (quoting United States v. Dunegan, 251 F.3d 477, 480 (3d Cir. 2001)). ↑
As the court noted:

A federal court invokes ancillary jurisdiction as an incident to a matter where it has acquired jurisdiction of a case in its entirety and, as an incident to the disposition of the primary matter properly before it. It may resolve other related matters which it could not consider were they independently presented. Thus, ancillary jurisdiction permits a court to only dispose of matters related to the original case before it. The doctrine of ancillary jurisdiction does not give district courts the authority to reopen a closed case whenever a related matter subsequently arises. The Supreme Court in recent years has held that ancillary jurisdiction is much more limited.

Dunegan, 251 F.3d at 478–79 (internal citations omitted). ↑
Id. at 479–80. ↑
Id. at 480 (quotations omitted). ↑
See, e.g., United States v. Sumner, 226 F.3d 1005, 1010–11 (9th Cir. 2000). But see United States v. Smith, 940 F.2d 395 (9th Cir. 1991) (listing cases where the Ninth Circuit recognized equitable power of the court to grant expungements in rare cases). ↑
United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977). ↑
Id. (quotations omitted). ↑
Id. ↑
Id. (quotations omitted). ↑
Id. (quoting United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975), cert. denied, 423 U.S. 836 (1975)). ↑
Id. at 540. ↑
Id. (citing Sullivan v. Murphy, 478 F.2d 938, 968–71 (D.C. Cir. 1973)). ↑
Id. (citing United States v. McLeod, 385 F.2d 734, 737–38 (5th Cir. 1967)). ↑
Id. (citing Wheeler v. Goodman, 306 F. Supp. 58, 66 (W.D.N.C. 1969)). ↑
Id. (citing Kowall v. United States, 53 F.R.D. 211, 212 (W.D. Mich. 1971)). ↑
Id. at 539. ↑
United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). ↑
Id.; see also Geary v. United States, 901 F.2d 679, 679–80 (8th Cir. 1990) (holding that a federal court may only exercise its inherent equitable power to expunge in cases of extraordinary circumstances); Allen v. Webster, 742 F.2d 153, 154–55 (4th Cir. 1984) (same); Menard v. Saxbe, 498 F.2d 1017, 1023–25 (D.C. Cir. 1974) (same). ↑
United States v. Meyer, 439 F.3d 855, 859 (8th Cir. 2006) (emphasis added). ↑
18 U.S.C. § 3607; 21 U.S.C. § 844. ↑
See, e.g., United States v. Travers, 514 F.2d 1171, 1175, 1179 (2d Cir. 1974) (granting expungement of a federal conviction after the Supreme Court rejected the statutory interpretation under which the conviction was affirmed; the court concluded that the defendant’s actions simply were not illegal). This author was unable to find any state cases where a court granted a writ of mandamus to expunge a criminal record. ↑
Interestingly, that was not always the case. In 1950 Congress passed the Federal Youth Corrections Act, which allowed eighteen- to twenty-six-year-olds to set aside their convictions if the court released them early from probation. As Margaret Colgate Love wrote in Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 1705, 1709 & n.15, 1710 (2003):

[T]he basic idea was to have a court grant relief that would be more complete than a pardon, and more respectable than an automatic or administrative restoration of rights. The purpose of judicial expungement or set-aside was to both encourage and reward rehabilitation, by restoring social status as well as legal rights.” Id. at 1710. The statute was repealed in 1984.

Id. at 1716.

In 1962, the National Council on Crime and Delinquency (“NCCD”) proposed a model statute that would give the court statutory authority to “annul” convictions. Id. at 1710. The intended effect was to restore a person’s civil rights and allow them to state that they had not been convicted when filling out applications. Id. The NCCD proposal also would have required employers and licensing boards to ask applicants: “Have you ever been arrested for or convicted of a crime which has not been annulled by a court?” Id. (footnote omitted).

That same year, a provision of the American Law Institute’s Model Penal Code (“MPC”) empowered the sentencing court, “after an offender had fully satisfied the sentence, to enter an order relieving ‘any disqualification or disability imposed by law because of the conviction.’ After an additional period of good behavior, the court could issue an order ‘vacating’ the judgment of conviction.” Id. at 1711 (citing MPC § 306.6) (footnotes omitted). According to Love, the MPC provision “intended to accomplish the maximum by way of legal and social restoration for rehabilitated ex-offenders. But it was specifically not intended to remove the conviction from the records, or indulge the fiction that the conviction had somehow never taken place.” Id. at 1712 (footnotes omitted).

The House Committee on the Judiciary undertook another sentencing reform bill that included provisions unreasonably restricting eligibility for public benefits and employment based on a federal conviction, extending the Youth Corrections Act to all first-time offenders so that all those records would be sealed for most purposes and the individual could deny the conviction. Id. at 1715–16. “The goal of the legislation was to restore the convicted person to the same position as before the conviction.” Id. at 1716 (quotations omitted). This bill was ultimately defeated by the competing Senate bill, the Sentencing Reform Act of 1984. Id. ↑
Gabriel J. Chin, Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions, 102 Marq. L. Rev.

233, 234–35 (2018); Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 627 (2006). ↑
Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 302 (2015). ↑
Chin, supra note 383, at 235; Lollar, supra note 299, at 123–30; Wayne A. Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103, 1104–09 (2013). ↑
J. McGregor Smyth, Jr., From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings, Crim. Just., Fall 2009, at 42, 42. ↑
The need for such writs would likely be minimized if the legal system were to adopt I. Bennett Capers’s recommendations for returning some prosecutorial authority to the people. I. Bennett Capers, Against Prosecutors, 105 Cornell L. Rev. 1561 (2020). ↑
Petition for Peremptory Writ of Mandamus (In the First Instance) at 2, State ex rel. Vernon v. Adrine, No. 103149 (Ohio Ct. App. 2015), https://www.scribd.com/document/2690‌46322/Writ-of-Mandamus-Peremptory-in-Tamir-Rice-case [https://perma.cc/LS58-QVZH]. ↑
Ohio Rev. Code Ann. § 2935.09(D) (LexisNexis 2006). ↑
Petition for Peremptory Writ, supra note 388, at 2–3. ↑
Id. at 3. ↑
Ohio Rev. Code Ann. § 2935.10(A) (LexisNexis 1973). ↑
Id. ↑
State ex rel. Vernon v. Adrine, No. 103149, 2015 WL 4389579, at *1 (Ohio Ct. App. 2015). ↑
Id. at *3. ↑
Id. at *4 (Laster Mays, J., dissenting). ↑
477 F.2d 375 (2d Cir. 1973). ↑
Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy 153–54, 170 (2016) (citations omitted). ↑
Jeff Z. Klein, Niagara Frontier Heritage Project, Heritage Moments: The Attica Prison Uprising – 43 Dead and a Four-Decade Cover-Up, NPR (Sept. 10, 2018), https://news.wbfo.‌org/post/heritage-moments-attica-prison-uprising-43-dead-and-four-decade-cover [https://perma.cc/TL3L-M94T]. The eleven included prison guards and civilian workers. Id. Although one prison guard and three of those incarcerated appear to have been killed prior to state police entering the prison, id., the remainder of the deaths were at the hands of state police. Thompson, supra note 398, at 230–31, 238–39. ↑
Inmates of Attica, 477 F.2d at 378. ↑
Id. at 377. ↑
Id. at 379 (quoting United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968)). ↑
Id. ↑
Id. ↑
Id. at 379–80 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)). ↑
Id. at 380. ↑
Id. The court went on:

At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases? What collateral factors would be permissible bases for a decision not to prosecute, e.g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws?

Id. ↑
Id. at 380–81 (internal citations omitted). ↑
Id. at 382. ↑
See, e.g., Sanders-El v. Commonwealth, No. 2010-CA-001964-MR, 2011 WL 2935854, at *1–2 (Ky. Ct. App. July 22, 2011); Konya v. Dist. Att’y of Northampton Cnty., 669 A.2d 890, 892–93 (Pa. 1995); Bartlett v. Caldwell, 452 S.E.2d 744, 744 (Ga. 1995); Otero v. U.S. Att’y Gen., 832 F.2d 141, 141 (11th Cir. 1987) (per curiam); Powell v. Katzenbach, 359 F.2d 234, 234 (D.C. Cir. 1965) (per curiam). ↑
State ex rel. Capron v. Dattilio, 50 N.E.3d 551, 553 (Ohio 2016); State ex rel. Evans v. Columbus Dept. of Law, 699 N.E.2d 60, 61 (Ohio 1998) (per curiam). ↑
Cf. Capron, 50 N.E.3d at 553. ↑
Under Ohio’s law, a judge does not abuse her discretion if she refers the case to the prosecutor’s office for further investigation; such a referral discharges the judge’s duty under the statute. See, e.g., State ex rel. Brown v. Nusbaum, 95 N.E.3d 365, 367–68 (Ohio 2017); State ex rel. Strothers v. Turner, 680 N.E.2d 1238, 1239 (Ohio 1997) (per curiam). ↑
Relatedly, courts almost always deny writs of mandamus when the defendant has cooperated in a criminal case after sentencing and seeks to have the court require the government to recommend a reduction in sentence for providing “substantial assistance” under Rule 35(b). See, e.g., United States v. Mells, 481 F. App’x 563, 564–66 (11th Cir. 2012) (per curiam); United States v. Duncan, 280 F. App’x 901, 903–04 (11th Cir. 2008) (per curiam); United States v. Tadlock, 346 F. App’x 977, 978 (4th Cir. 2009) (per curiam); United States v. Murray, 437 F. App’x 103, 105 (3d Cir. 2011) (per curiam). ↑
See, e.g., United States v. Frye, 489 F.3d 201, 214 (5th Cir. 2007). But see Smith v. Groose, 205 F.3d 1045, 1051 (8th Cir. 2000) (finding violation of due process when state prosecuted two different defendants on factually contradictory theories); Thompson v. Calderon, 120 F.3d 1045, 1050–51 (9th Cir. 1997) (en banc) (noting that “a serious question exists as to whether [the defendant] was deprived of due process of law by the prosecutor’s presentation of flagrantly inconsistent theories . . . to the two juries that separately heard” the two co-defendants’ cases), rev’d on other grounds, 523 U.S. 538 (1998). ↑
See supra Subsection I.C.1.b. ↑
548 U.S. 140 (2006). ↑
Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 San Diego L. Rev. 525, 545–47 (2007). ↑
Gonzalez-Lopez, 548 U.S. at 145. ↑
Id. ↑
Id. at 147–48 (footnotes omitted). ↑
Id. at 146. ↑
Id. at 148. ↑
Id. at 151. ↑
Id. at 152 (citations omitted). ↑
Justice Scalia wrote:

We have little trouble concluding that erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the ‘framework within which the trial proceeds,’—or indeed on whether it proceeds at all.

Id. at 150 (citations omitted). ↑
Norman Lefstein, In Search of Gideon’s Promise: Lessons from England and the Need for Federal Help, 55 Hastings L.J. 835, 917 (2004). ↑
Id. at 918. ↑
Id. at 919. ↑
Id. at 863, 886. ↑
Id. at 863. ↑
Compare id. at 868 (“[T]here is little retained criminal defense work in England.”) with Hoeffel, supra note 418, at 545 (“[O]nly . . . ten percent of criminal defendants . . . retain counsel . . . .”). ↑
Lefstein, supra note 427, at 893. ↑
Id. ↑
Id. at 915. ↑
Id. ↑
Id. ↑
Hoeffel, supra note 418, at 540–42. ↑
Id. at 543–44. ↑
Id. at 544–45. ↑
Id. at 548; United States v. Gonzalez-Lopez, 548 U.S. 140, 146–48 (2006). ↑
Moran, supra note 121, at 1341–42. ↑
In re United States, 397 F.3d 274, 286–87 (5th Cir. 2005). ↑
District of Columbia v. Fitzgerald, 953 A.2d 288, 291–92 (D.C. 2008). ↑
United States v. Choi, 818 F. Supp. 2d 79, 82 (D.D.C. 2011). ↑
Wolitz, supra note 163, at 1292–99. ↑
United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988) (requiring the petitioner to “demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences)”). ↑
Id. at 203; United States v. Bush, 888 F.2d 1145, 1148–50 (7th Cir. 1989). ↑
See supra Subsection I.C.2. ↑
United States v. Craig, 907 F.2d 653, 658 (7th Cir. 1990). ↑
Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987) (citing Sibron v. United States, 392 U.S. 40, 55–57 (1968)). ↑
Kessack v. United States, No. C05-1828Z, 2008 WL 189679, at *2 (W.D. Wash. 2008) (internal quotations omitted). ↑
Id. at *5. ↑
Id. (internal quotations omitted). ↑
Id. at *6. ↑
Fountain, supra note 221, at 241–45; Teague v. Lane, 489 U.S. 288, 310 (1989) (“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”). ↑
Fountain, supra note 221, at 239 (quoting Carrington v. United States, 503 F.3d 888, 893 (9th Cir. 2007)). ↑
Ejelonu v. I.N.S., 355 F.3d 539, 548 (6th Cir. 2004); Fountain, supra note 221, at 239. ↑
Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *2 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)). ↑
A State-by-State Look at Coronavirus in Prisons, Marshall Project (updated Nov. 12, 2020), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons [https://perma.cc/YRN2-NPXR]. ↑
Id. ↑
Brie Williams et al., Correctional Facilities in the Shadow of COVID-19: Unique Challenges and Proposed Solutions, Health Affs. Blog (Mar. 26, 2020), https://www.health‌affairs.org/do/10.1377/hblog20200324.784502/full/ [https://perma.cc/H6FV-TNT5]. ↑
Id. ↑
Kelly Davis, Coronavirus in Jails and Prisons, Appeal (July 30, 2020), https://theappeal.org/coronavirus-in-jails-and-prisons-36/ [https://perma.cc/E6AP-Q2XR]. ↑
Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *2 (D. Utah 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)). ↑
Numerous thoughtful and consequential proposals abound, including discussions about abolishing prisons, see, e.g.,

Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156 (2015); Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California

(2007);

Angela Y. Davis, Are Prisons Obsolete?

(2003);

defunding the police and putting that funding into other resources, such as housing and education, see, e.g., Keeanga-Yamahtta Taylor, How Do We Change America?,

New Yorker (June 8, 2020), https://www.newyorker.com/news/our-columnists/how-do-we-change-america?itm_content=footer-recirc [https://perma.cc/J6GB-2PWC]; Amna A. Akbar, How Defund and Disband Became the Demands, N.Y. Rev. Books (June 15, 2020), https://www.nybooks.com/daily/2020/06/15/how-defund-and-disband-became-the-demands/ [https://perma.cc/UZ2P-B82Q]; investing in restorative justice programs, see, e.g., Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair

(2019);

and democratizing criminal justice processes, see, e.g., K. Sabeel Rahman & Jocelyn Simonson, The Institutional Design of Community Control, 108 Calif. L. Rev. 679 (2020); Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249 (2019); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405 (2018); Janet Moore, Marla Sandys & Raj Jayadev, Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 Alb. L. Rev. 1281 (2014/2015). ↑
Despite the typically slow pace of change, sometimes an event triggers unusually rapid systemic change. The killing of George Floyd by a police officer in Minneapolis appears to have been one of those triggers. Since his death on May 25, 2020, numerous states have initiated police conduct and criminal procedure reforms that typically occur after years of work. See, e.g., Weihua Li & Humera Lodhi, The States Taking on Police Reform After the Death of George Floyd, FiveThirtyEight & Marshall Project (June 18, 2020, 3:00 PM), https://fivethirtyeight.com/features/which-states-are-taking-on-police-reform-after-george-floyd/ [https://perma.cc/DT4D-T55V]; Orion Rummler, The Major Police Reforms Enacted Since George Floyd’s Death, Axios (updated Oct. 1, 2020), https://www.axios.com/police-reform-george-floyd-protest-2150b2dd-a6dc-4a0c-a1fb-62c2e999a03a.html [https://perma.‌cc/4NTE-QYL3]. Perhaps, then, systemic changes are on the horizon, making the need for the proposals in Part III of this Article less essential. Yet even in a world of reduced funding for police and less incarceration, equitable remedies play an important role in seeking and obtaining justice. ↑

Interpretive Entrepreneurs

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial activity by business actors and cast a wide net, examining aircraft finance, space mining, modern slavery, and investment law. As a matter of theory, this process-based account suggests that international legal interpretation involves contests for meaning among diverse groups of actors, giving credence to critical and constructivist views of international legal interpretation. As a practical matter, the case studies show that interpretive entrepreneurship is an influence tool and a driver of legal change.

Introduction

Uber is a “disruptor.”¹1.Clayton M. Christensen, Michael E. Raynor & Rory McDonald, What Is Disruptive Innovation?, Harv. Bus. Rev., Dec. 2015, https://hbr.org/2015/12/what-is-disruptive-innovation [https://perma.cc/S84Z-8RE5] (“‘Disruption’ describes a process whereby a smaller company with fewer resources is able to successfully challenge established incumbent businesses.”); see alsoAndré Spicer, Disruptor Has Become a Dirty Word. And Not Just When Applied to Donald Trump, The Guardian, (June 11, 2019),https://www.theguardian.com/‌commentisfree/2019/jun/11/disruptor-dirty-word-donald-trump-scientists-engineers [https://perma.cc/P34D-HGY5] (“Now being [a] ‘disruptor’ is a positive. Entrepreneurs such as Elon Musk are lauded when they seek to ‘disrupt’ established industries . . . .”).Show More While the term generally refers to disruption of a business model, Uber’s disruption extends to the law.²2.SeeElizabeth Pollman & Jordan M. Barry, Regulatory Entrepreneurship, 90 S. Cal. L. Rev. 383, 398 n.63 (2017) (describing how Uber relied on changing the law as part of its business plan).Show More Rather than submit to the restrictive rules of the taxicab industry, Uber read itself out of them, relying on its own aggressive legal interpretations to justify its plans.³3.Id.Show More It then launched its business, entrenched itself in popular culture, gathered political power, and became “too big to ban.”⁴4.Id. at 401–02.Show More Uber’s success in defining itself out of taxicab regulations is a high profile example of a phenomenon I call “interpretive entrepreneurship.”⁵5.While Uber’s interpretations have often been successful in the United States, these results have not consistently been replicated elsewhere. See, e.g., Case C-434/15, Asociación Profesional Elite Taxi v. Uber Sys. Spain SL, ECLI:EU:C:2017:981 (Dec. 20, 2017) (defining Uber as a “service in the field of transport” under European Union Law and thus subject to normal regulation as a taxi). This observation builds on and departs from an account developed by Elizabeth Pollman and Jordan Barry, who define “regulatory entrepreneurship” as “[w]ell-funded, scalable, and highly connected startup businesses” who “target state and local laws and litigate them in the political sphere instead of in court.” Pollman & Barry, supra note 2, at 383. This Article identifies Pollman and Barry’s legal disruption as one mode of entrepreneurial interpretation.Show More

Interpretive entrepreneurship is the act of developing the law by interpreting it. Interpretive entrepreneurs might exploit legal uncertainty to pursue business plans, as Uber did, and change the regulatory environment along the way.⁶6.Seediscussion infraSubsection II.A.1.Show More Or they may shop around favorable interpretations to regulators, or publicize reputation-friendly interpretations to investors and the public.⁷7.Seediscussion infraSubsection II.A.2.Show More Through each mode, interpretive entrepreneurs seek to influence legal development.⁸8.Seediscussion infra Section II.C.Show More A more familiar way to think about private sector influence over legal development is through the lobbying that surrounds new lawmaking efforts.⁹9.See, e.g., William N. Eskridge, Jr., Federal Lobbying Regulation: History Through 1954, in The Lobbying Manual 5 (William V. Luneburg, Thomas M. Susman & Rebecca H. Gordon eds., 4th ed. 2009) (history of U.S. federal lobbying laws); Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 121, 134–42 (2010) (reviewing efforts to redress the “financial vulnerabilities of democracy,” including through campaign-finance reform efforts); Thomas M. Susman & William V. Luneburg, History of Lobbying Disclosure Reform Proposals Since 1955, in The Lobbying Manual, supra, at 23 (history of U.S. federal lobbying reform proposals).Show More Interpretive entrepreneurship is the ex post companion to these ex ante lobbying efforts. While legal scholarship has focused on the ex ante lobbying,¹⁰10.See, e.g., Heather K. Gerken & Alex Tausanovitch, A Public Finance Model for Lobbying: Lobbying, Campaign Finance, and the Privatization of Democracy, 13 Election L.J. 75, 87–90 (2014) (proposing reforms that would subsidize lobbying activity by public interest groups); Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 226–36 (2012) (proposing a “national economic welfare” rationale for lobbying regulation); Maggie McKinley, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1199 (2016) (asserting that current lobbying regulation and practice violates the First Amendment’s Petition Clause); Zephyr Teachout, The Forgotten Law of Lobbying, 13 Election L.J. 4, 6 (2014) (noting that the scope of the constitutional lobbying right is unclear).Show More the ex post interpretative role is underappreciated. As this Article shows, both activities deserve attention.

To sharpen the account and clarify the stakes, the Article makes two framing choices. First, while many actors can participate in legal interpretation, the Article focuses on interpretive entrepreneurship by business actors. This choice directs attention to the fact that some of the same actors may participate in both lobbying and interpretation as separate portions of a unified influence campaign to advance business agendas.¹¹11.See, e.g., discussion infra Subsection II.A.1 (describing how industry efforts to develop the Cape Town Convention on International Interests in Mobile Equipment began at the drafting stage and continue with efforts on implementation, interpretation, and compliance).Show More Second, the Article focuses its account on interpretation of international legal norms. While interpretive entrepreneurship may take place at any level of legal ordering, from the municipal to the international, interpretive entrepreneurship is particularly significant as a transnational phenomenon.¹²12.Consider the problem of interpretation in the international context. For example, the key operative provision of the Paris Agreement on climate change provides that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.” Paris Agreement art. 4, ¶ 2, Dec. 12, 2015, T.I.A.S. No. 16-1104 (emphasis added). What is the meaning of the italicized portion? Have parties obligated themselves to engage in mitigation measures? For a careful defense of this interpretation, see Daniel Bodansky, Jutta Brunée & Lavanya Rajamani, International Climate Change Law 231 (2017) (arguing that the imperative “shall” relates both to the national contributions and the pursuit of mitigation measures). Or have parties merely committed to “pursuing” measures, with no obligation to actually carry them out? See, e.g., Richard Falk, “Voluntary” International Law and the Paris Agreement, Commentary on Global Issues (Jan. 16, 2016), https://richardfalk.wordpress.com/2016/01/16/voluntary-international-law-and-the-paris-agreement/ [https://perma.cc/ZTH6-C3UV] (arguing that the Paris Agreement is “voluntary” international law with no binding commitments). Which reading is best? Which is law? The Paris Agreement does not designate any international court or tribunal as a neutral arbitrator of disputes. Even if it had done so, international law has no official system of precedent to carry one tribunal’s interpretation forward with the force of law. See Harlan Grant Cohen, Theorizing Precedent in International Law, in Interpretation in International Law268, 269 (Andrea Bianchi, Daniel Peat & Matthew Windsor eds., 2015) [hereinafter Cohen, Theorizing Precedent].In the United States, federal courts will interpret treaties, deferring in some instances to the executive branch. Curtis A. Bradley & Jack L. Goldsmith, Presidential Control over International Law, 131 Harv. L. Rev. 1201, 1204 (2018) (observing that “Presidents . . . have come to dominate the creation, alteration, and termination of international law for the United States”); see also Restatement (Third) of the Foreign Relations Law of the United States § 326(2) (Am. L. Inst. 1986) (noting that courts “give great weight to an interpretation made by the Executive Branch”). But many treaties do not offer private rights and so their meanings are not litigated in the United States. See id. § 907 cmt. a (“International agreements . . . generally do not create private rights or provide for a private cause of action in domestic courts . . . .”); see also United States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001) (“As a general rule, however, international treaties do not create rights that are privately enforceable in the federal courts.”). Even if they are litigated in the United States, the interpretation produced by a U.S. court is just one competing interpretation on the international stage. Treaty meaning is not often litigated before international tribunals like the International Court of Justice. See Eric A. Posner, The Decline of the International Court of Justice 5 (Univ. Chi. John M. Olin L. & Econ., Working Paper No. 233, 2004), https://chicagounbound.‌uchicago.edu/cgi/viewcontent.cgi?article=1499&context=law_and_economics [https://perma.cc/77P8-RYK3] (noting that states frequently refuse to submit to the jurisdiction of the International Court of Justice).Show More This is due to the growing importance of transnational commerce combined with the lack of courts with general jurisdiction and a system of precedent on the international level.¹³13.Cohen, Theorizing Precedent, supranote 12, at 268, 269–70 (“International law today . . . generally denies international precedents doctrinal force.”); see also sources cited infra Section I.A. (developing these points).Show More

Conventional accounts of international legal interpretation focus on interpretive doctrine rather than on the process of interpretation and the multiplicity of actors involved.¹⁴14.Daniel Peat & Matthew Windsor, Playing the Game of Interpretation: On Meaning and Metaphor in International Law, in Interpretation in International Law, supra note 12, at 3, 3–4, 8 (identifying these gaps and setting out to remedy this shortcoming by “highlight[ing] the practice and process of interpretation as well as the professional identity of those involved”); see also James Crawford, Foreword toInterpretation in International Law, supranote 12, at v, v (“Legal scholarship has tended to tackle the issue of interpretation either from an abstract, quasi-philosophical perspective, or by focusing on the Vienna Convention on the Law of Treaties . . . .”).Show More But related literatures show that interpretive participants and processes matter. For example, debates in the United States concern which questions are too “political” for the judiciary to resolve, and which branch of government is best suited to decide matters of foreign affairs.¹⁵15.SeeJesse H. Choper, Introduction to The Political Question Doctrine and The Supreme Court of the United States 1, 1–2 (Nada Mourtada-Sabbah & Bruce E. Cain eds., 2007) (outlining debates about the political question doctrine); Bradley & Goldsmith, supranote 12, at 1252–56 (examining consequences of presidential control over international lawmaking and interpretation).Show More They rest on the assumption that the interpreter and the forum can affect the outcome.

The Article directs attention to processes of international legal interpretation, and particularly to private sector influences in that process. It relies on the socio-legal method of grounding theoretical insights in descriptive analysis.¹⁶16.The approach places this Article within the “empirical turn” in international legal scholarship, which focuses on “midrange theorizing,” or building theory from the study of facts. Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 Am. J. Int’l L. 1, 1 (2012).Show More Its analysis suggests that business entities are involved in a potentially vast amount of international interpretive activity which helps shape the development of international legal norms.

The Article makes three principal contributions. First, it describes and analyzes the interpretive entrepreneurship phenomenon through a collection of case studies relating to diverse areas of public and private international law.¹⁷17.SeeinfraSections II.A & B.Show More The case studies are based on both original research and a cross-disciplinary literature review. They cast a wide net, ranging from aircraft financing¹⁸18.Seeinfra Subsection II.A.1.Show More to the meaning of “modern slavery”¹⁹19.Seeinfra Subsection II.A.4.Show More for the purpose of supply chain due diligence. They address private sector interpretations in trade and investment law²⁰20.Seeinfra Subsection II.A.3 & Section II.B.Show More as well as the Outer Space Treaty’s application to commercial mining.²¹21.SeeinfraSubsection II.A.2.Show More

The case studies show how, why, and by whom interpretive entrepreneurship unfolds.²²22.For all the points in this paragraph, see thediscussion in Section II.C.Show More The methods of interpretation are both formal and informal; they are sometimes facilitated by the apparatus of the state, and sometimes take place in purely private fora. Targets of persuasive campaigns, the “audiences” for these private sector interpretations, can be state parties to a treaty, domestic courts or international tribunals, subnational regulators, shareholders, or the public. The case studies show that private actors can engage in interpretive entrepreneurship for a variety of purposes, including to entrench commerce-friendly interpretations, forestall regulation, secure reputational benefits, or demonstrate compliance.

The Article’s second contribution is to show how the interpretive entrepreneurship phenomenon contributes to and re-frames existing debates on international legal interpretation. Many debates focus on interpretive rules found in the Vienna Convention on the Law of Treaties (“VCLT” or Vienna Convention),²³23.Vienna Convention on the Law of Treaties arts. 31–33, opened for signature May 23, 1969, 1155 U.N.T.S. 331; see, e.g., Duncan B. Hollis, The Existential Function of Interpretation in International Law, in Interpretation in International Law, supra note 12, at 78, 80 (“Conventional wisdom focuses almost entirely on . . . a single interpretive method—Articles 31 and 32 of the VCLT.”); Peat & Windsor, supranote 14, at 4 (noting that the “state of play” when it comes to interpretation in international legal scholarship and practice “is characterized by a myopic focus on the rules of treaty interpretation in Articles 31–33 of the VCLT”).Show More and on the best methods to apply those rules.²⁴24.As any international lawyer can explain, the Vienna Convention rules instruct that treaties should be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 1. The vast majority of legal scholarship on international legal interpretation addresses the proper use of these rules. Seediscussion infraSubsection I.B.1. Their apparent simplicity masks myriad questions, which have spawned a variety of interpretive approaches, including textualism, purposivism, and a teleological approach, among others. SeeHollis, supra note 23, at 81 (noting that “proponents of different interpretive methods claim that the VCLT accommodates, or privileges, their method”).Show More A “retrievalist” view suggests that applying the rules correctly will produce a correct interpretation.²⁵25.Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 241–64 (2009) (“Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has.”).Show More But the Vienna Convention rules themselves require interpretation,²⁶26.SeeHollis, supra note 23, at 84 (noting that the VCLT rules themselves require interpretation); see alsoJohn Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, 23 Harv. Hum. Rts. J. 1, 3 (2010) (“[The Vienna Convention] is ultimately unable to resolve the question of how to choose a meaning . . . from among the inevitable range of potential meanings.”).Indeed, twentieth century American legal realists observed that all law might be indeterminate. See, e.g., Karl Lewellyn, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1237 (1931) (arguing that one of the hallmarks of realism is “distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Felix S. Cohen, Transcendental Nonsense and the Functional Approach,35 Colum. L. Rev. 809, 843 (1935) (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”); see alsoH.L.A. Hart, The Concept of Law 204(2d ed. 1994) (“[T]he open texture of law leaves a vast field for creative activity which some call legislative.”).Show More and critical theorists reject the formalist project as blinkered, observing that legal interpretation is infused with ideology and reflects and embeds power.²⁷27.See, e.g., Phillip Allott, Interpretation—An Exact Art, in Interpretation in International Law, supranote 12, at 373, 375 (noting that “[t]o anyone who knows anything about . . . epistemology” the idea that treaties have meaning “may seem comical in its naivety”); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 8 (2006) (“Meaning is not . . . present in the expression itself.”); Ian Johnstone, Introduction, 102 Am. Soc’y Int’l L. Proc. 411, 411 (2008) (noting debates over whether interpreters are “making law, based on values and policy choices”); see alsoNote,’Round and ‘Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship,95 Harv. L. Rev. 1669, 1678 (1982) (noting that critical scholars recognize the “historical contingency of law” and doctrinal first principles “represent mere choices of one set of values over another”); discussion infraSubsection I.B.2 (developing these points).Show More A third, “constructivist,” approach proposes that interpretation is necessarily a creative process, as interpreters use various tools to try to persuade others within interpretive communities.²⁸28.Crawford, supra note 14, at v (“[I]nternational lawyers think that their interpretations are right, and they play the game [of interpretation] by trying to convince others of this.”). The term “constructivist” is appropriate here because the term “epistemic community” arose out of constructivist international relations theory. Michael Waibel, Interpretive Communities in International Law, in Interpretation in International Law, supranote 12, at147, 149.Show More Interpretation is a contest, a game, or a staging ground for bargaining.²⁹29.SeeWaibel, supra note 28, at 148 (calling interpretation a “contest”); Crawford, supra note 14, at v (calling interpretation a “game”); Andrea Bianchi, The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle, in Interpretation in International Law, supra note12,at34, 34 (calling interpretation a “game”); Yanbai Andrea Wang, The Dynamism of Treaties, 78 Md. L. Rev. 828, 837 (2019) (calling treaties “departure points for further bargaining”).Show More This Article re-focuses these debates, showing how, for each of the dominant theoretical approaches to international legal interpretation, the process of interpretation has real stakes. It also gives credence to critical and constructivist understandings that the identity of the interpreter matters to the interpretation.

Third, the Article frames these interpretive processes as a form of post hoc lawmaking,³⁰30.Seeinfra Part III.Show More which develop the meaning of laws over time. The phenomenon is worth studying alongside activities like lobbying and agency capture that exert pressure on lawmaking ex ante.³¹31.SeeEyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167, 170–71 (1999) (conceiving of the sovereign state as an agent of small interest groups); Rachel Brewster, The Domestic Origins of International Agreements, 44 Va. J. Int’l L. 501, 539 (2004) (noting that governments make international agreements in response to domestic needs); Melissa J. Durkee, International Lobbying Law, 127 Yale L.J. 1742, 1747 (2018) (describing the “quotidian reality of international lobbying”). The fact that international lawmakers face pressures from domestic constituencies has long been a matter of interest within international relations. See, e.g.,Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513, 518 (1997) (arguing that in liberal international relations theory, domestic constituencies construct state interests); Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427, 433–34 (1988) (theorizing that the negotiating behavior of national leaders reflects the dual and simultaneous pressures of international and domestic political games).Show More The project therefore contributes to literatures that investigate how multinational entities wield their power to shape international law.³²32.These conversations are playing out in multiple disciplines. See, e.g., John Braithwaite & Peter Drahos, Global Business Regulation 5–7, 27–33 (2000) (sociology); Walter Mattli & Ngaire Woods, Introduction to The Politics of Global Regulation, at ix, x–xii (Walter Mattli & Ngaire Woods eds., 2009) (political science); A. Claire Cutler, Virginia Haufler & Tony Porter, Private Authority and International Affairs, in Private Authority and International Affairs 3, 4 (A. Claire Cutler, Virginia Haufler & Tony Porter eds., 1999) (international relations); Tim Büthe & Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy 5 (2011) (law); Joshua Barkan, Corporate Sovereignty: Law and Government Under Capitalism 8–14 (2013) (political geography).Show More It is also in conversation with a literature that explores the role of “regulatory intermediaries” in developing international law,³³33.Kenneth W. Abbott, David Levi-Faur & Duncan Snidal, Theorizing Regulatory Intermediaries: The RIT Model, 670 Annals Am. Acad. Pol. & Soc. Sci. 14 (2017). This literature seeks to understand how “state actors, private organizations, and civil society actors mediate the meaning of legal rules in regulatory governance arrangements that they participate in.” Shauhin Talesh, Rule-Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements, 37 Law & Pol’y 1, 2 (2015).Show More and a literature that conceives of international law as the product of “norm cascades” produced in part by norm entrepreneurs.³⁴34.Martha Finnemore & Katheryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 893 (1998) (introducing the idea that norms “cascade” through an international system after a sufficient number of states adopt the norm; advocacy groups can help initiate this process by serving as “norm entrepreneurs”). The “norm cascade” literature has focused on advocacy groups, id., rather than private sector norm entrepreneurs, and has focused on the role of non-governmental organizations in the emergence of a norm rather than the interpretation of that norm once a treaty has been adopted. See Heidi Nichols Hadad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 187 (2013) (noting the assumption that “NGOs exercise their greatest impact on norm change during the early stages of norm emergence”).Show More Understanding interpretive entrepreneurship as one way private actors influence the law clarifies the practice of international legal interpretation, helps evaluate its effects on the legitimacy and effectiveness of international law, and develops a foundation for potential reforms.

The practical context is important. Despite existential global threats like climate change, the risk of pandemic, and regional conflicts, the early twenty-first century is not an era of multilateral lawmaking. Rather, the tools at hand are principally the laws on the books. As the Article shows, because interpretation can develop those laws over time,³⁵35.Rahim Moloo, Changing Times, Changing Obligations? The Interpretation of Treaties Over Time, 106 Am. Soc’y Int’l L. Proc. 261, 261, 264 (2012) [hereinafter Moloo, Changing Times?] (noting that while treaties are hard to amend, treaty interpretation can adapt treaties to changing circumstances).Show More they attract contests for meaning by those who would develop or erode them. Interpretive entrepreneurship can drive legal change.

Part I develops the argument that a process-based account of international legal interpretation has both theoretical and practical salience. Part II describes the interpretive entrepreneurship phenomenon through a series of case studies and organizes and analyzes this activity. Part III characterizes interpretive entrepreneurship as post hoc lawmaking and identifies its implications.

* Allen Post Professor of Law, University of Georgia. Thanks to Erez Aloni, Julian Arato, Martin Bjorkland, Christopher Borgen, Nathan Chapman, Harlan Grant Cohen, Tim Dorlach, James Gathii, Catherine Hardee, David Hughes, Brian Israel, John Linarelli, Margaret McGuinness, Jide Nzelibe, Lori Ringhand, Usha Rodriguez, Peter B. Rutledge, Alvaro Santos, Galit Sarfaty, Yahli Shereshevsky, Richard Steinberg, and participants at workshops at the ASIL Biennial International Economic Law Workshop, the American Society of International Law Research Forum, the UGA-Emory works-in-progress workshop, and the St. John’s University School of Law International Law Colloquium. Special thanks to Andrew Hedin, Matheus Teixeira, and the UGA Law Library for research assistance. ↑
Clayton M. Christensen, Michael E. Raynor & Rory McDonald, What Is Disruptive Innovation?, Harv. Bus. Rev., Dec. 2015, https://hbr.org/2015/12/what-is-disruptive-innovation [https://perma.cc/S84Z-8RE5] (“‘Disruption’ describes a process whereby a smaller company with fewer resources is able to successfully challenge established incumbent businesses.”); see also André Spicer, Disruptor Has Become a Dirty Word. And Not Just When Applied to Donald Trump, The Guardian, (June 11, 2019), https://www.theguardian.com/‌commentisfree/2019/jun/11/disruptor-dirty-word-donald-trump-scientists-engineers [https://perma.cc/P34D-HGY5] (“Now being [a] ‘disruptor’ is a positive. Entrepreneurs such as Elon Musk are lauded when they seek to ‘disrupt’ established industries . . . .”). ↑
See Elizabeth Pollman & Jordan M. Barry, Regulatory Entrepreneurship, 90 S. Cal. L. Rev. 383, 398 n.63 (2017) (describing how Uber relied on changing the law as part of its business plan). ↑
Id. ↑
Id. at 401–02. ↑
While Uber’s interpretations have often been successful in the United States, these results have not consistently been replicated elsewhere. See, e.g., Case C-434/15, Asociación Profesional Elite Taxi v. Uber Sys. Spain SL, ECLI:EU:C:2017:981 (Dec. 20, 2017) (defining Uber as a “service in the field of transport” under European Union Law and thus subject to normal regulation as a taxi). This observation builds on and departs from an account developed by Elizabeth Pollman and Jordan Barry, who define “regulatory entrepreneurship” as “[w]ell-funded, scalable, and highly connected startup businesses” who “target state and local laws and litigate them in the political sphere instead of in court.” Pollman & Barry, supra note 2, at 383. This Article identifies Pollman and Barry’s legal disruption as one mode of entrepreneurial interpretation. ↑
See discussion infra Subsection II.A.1. ↑
See discussion infra Subsection II.A.2. ↑
See discussion infra Section II.C. ↑
See, e.g., William N. Eskridge, Jr., Federal Lobbying Regulation: History Through 1954, in The Lobbying Manual 5 (William V. Luneburg, Thomas M. Susman & Rebecca H. Gordon eds., 4th ed. 2009) (history of U.S. federal lobbying laws); Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 121, 134–42 (2010) (reviewing efforts to redress the “financial vulnerabilities of democracy,” including through campaign-finance reform efforts); Thomas M. Susman & William V. Luneburg, History of Lobbying Disclosure Reform Proposals Since 1955, in The Lobbying Manual, supra, at 23 (history of U.S. federal lobbying reform proposals). ↑
See, e.g., Heather K. Gerken & Alex Tausanovitch, A Public Finance Model for Lobbying: Lobbying, Campaign Finance, and the Privatization of Democracy, 13 Election L.J. 75, 87–90 (2014) (proposing reforms that would subsidize lobbying activity by public interest groups); Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 226–36 (2012) (proposing a “national economic welfare” rationale for lobbying regulation); Maggie McKinley, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1199 (2016) (asserting that current lobbying regulation and practice violates the First Amendment’s Petition Clause); Zephyr Teachout, The Forgotten Law of Lobbying, 13 Election L.J. 4, 6 (2014) (noting that the scope of the constitutional lobbying right is unclear). ↑
See, e.g., discussion infra Subsection II.A.1 (describing how industry efforts to develop the Cape Town Convention on International Interests in Mobile Equipment began at the drafting stage and continue with efforts on implementation, interpretation, and compliance). ↑
Consider the problem of interpretation in the international context. For example, the key operative provision of the Paris Agreement on climate change provides that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.” Paris Agreement art. 4, ¶ 2, Dec. 12, 2015, T.I.A.S. No. 16-1104 (emphasis added). What is the meaning of the italicized portion? Have parties obligated themselves to engage in mitigation measures? For a careful defense of this interpretation, see Daniel Bodansky, Jutta Brunée & Lavanya Rajamani, International Climate Change Law 231 (2017) (arguing that the imperative “shall” relates both to the national contributions and the pursuit of mitigation measures). Or have parties merely committed to “pursuing” measures, with no obligation to actually carry them out? See, e.g., Richard Falk, “Voluntary” International Law and the Paris Agreement, Commentary on Global Issues (Jan. 16, 2016), https://richardfalk.wordpress.com/2016/01/16/voluntary-international-law-and-the-paris-agreement/ [https://perma.cc/ZTH6-C3UV] (arguing that the Paris Agreement is “voluntary” international law with no binding commitments). Which reading is best? Which is law? The Paris Agreement does not designate any international court or tribunal as a neutral arbitrator of disputes. Even if it had done so, international law has no official system of precedent to carry one tribunal’s interpretation forward with the force of law. See Harlan Grant Cohen, Theorizing Precedent in International Law, in Interpretation in International Law 268, 269 (Andrea Bianchi, Daniel Peat & Matthew Windsor eds., 2015) [hereinafter Cohen, Theorizing Precedent].
In the United States, federal courts will interpret treaties, deferring in some instances to the executive branch. Curtis A. Bradley & Jack L. Goldsmith, Presidential Control over International Law, 131 Harv. L. Rev. 1201, 1204 (2018) (observing that “Presidents . . . have come to dominate the creation, alteration, and termination of international law for the United States”); see also Restatement (Third) of the Foreign Relations Law of the United States § 326(2) (Am. L. Inst. 1986) (noting that courts “give great weight to an interpretation made by the Executive Branch”). But many treaties do not offer private rights and so their meanings are not litigated in the United States. See id. § 907 cmt. a (“International agreements . . . generally do not create private rights or provide for a private cause of action in domestic courts . . . .”); see also United States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001) (“As a general rule, however, international treaties do not create rights that are privately enforceable in the federal courts.”). Even if they are litigated in the United States, the interpretation produced by a U.S. court is just one competing interpretation on the international stage. Treaty meaning is not often litigated before international tribunals like the International Court of Justice. See Eric A. Posner, The Decline of the International Court of Justice 5 (Univ. Chi. John M. Olin L. & Econ., Working Paper No. 233, 2004), https://chicagounbound.‌uchicago.edu/cgi/viewcontent.cgi?article=1499&context=law_and_economics [https://perma.cc/77P8-RYK3] (noting that states frequently refuse to submit to the jurisdiction of the International Court of Justice). ↑
Cohen, Theorizing Precedent, supra note 12, at 268, 269–70 (“International law today . . . generally denies international precedents doctrinal force.”); see also sources cited infra Section I.A. (developing these points). ↑
Daniel Peat & Matthew Windsor, Playing the Game of Interpretation: On Meaning and Metaphor in International Law, in Interpretation in International Law, supra note 12, at 3, 3–4, 8 (identifying these gaps and setting out to remedy this shortcoming by “highlight[ing] the practice and process of interpretation as well as the professional identity of those involved”); see also James Crawford, Foreword to Interpretation in International Law, supra note 12, at v, v (“Legal scholarship has tended to tackle the issue of interpretation either from an abstract, quasi-philosophical perspective, or by focusing on the Vienna Convention on the Law of Treaties . . . .”). ↑
See Jesse H. Choper, Introduction to The Political Question Doctrine and The Supreme Court of the United States 1, 1–2 (Nada Mourtada-Sabbah & Bruce E. Cain eds., 2007) (outlining debates about the political question doctrine); Bradley & Goldsmith, supra note 12, at 1252–56 (examining consequences of presidential control over international lawmaking and interpretation). ↑
The approach places this Article within the “empirical turn” in international legal scholarship, which focuses on “midrange theorizing,” or building theory from the study of facts. Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 Am. J. Int’l L. 1, 1 (2012). ↑
See infra Sections II.A & B. ↑
See infra Subsection II.A.1. ↑
See infra Subsection II.A.4. ↑
See infra Subsection II.A.3 & Section II.B. ↑
See infra Subsection II.A.2. ↑
For all the points in this paragraph, see the discussion in Section II.C. ↑
Vienna Convention on the Law of Treaties arts. 31–33, opened for signature May 23, 1969, 1155 U.N.T.S. 331; see, e.g., Duncan B. Hollis, The Existential Function of Interpretation in International Law, in Interpretation in International Law, supra note 12, at 78, 80 (“Conventional wisdom focuses almost entirely on . . . a single interpretive method—Articles 31 and 32 of the VCLT.”); Peat & Windsor, supra note 14, at 4 (noting that the “state of play” when it comes to interpretation in international legal scholarship and practice “is characterized by a myopic focus on the rules of treaty interpretation in Articles 31–33 of the VCLT”). ↑
As any international lawyer can explain, the Vienna Convention rules instruct that treaties should be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 1. The vast majority of legal scholarship on international legal interpretation addresses the proper use of these rules. See discussion infra Subsection I.B.1. Their apparent simplicity masks myriad questions, which have spawned a variety of interpretive approaches, including textualism, purposivism, and a teleological approach, among others. See Hollis, supra note 23, at 81 (noting that “proponents of different interpretive methods claim that the VCLT accommodates, or privileges, their method”). ↑
Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 241–64 (2009) (“Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has.”). ↑
See Hollis, supra note 23, at 84 (noting that the VCLT rules themselves require interpretation); see also John Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, 23 Harv. Hum. Rts. J. 1, 3 (2010) (“[The Vienna Convention] is ultimately unable to resolve the question of how to choose a meaning . . . from among the inevitable range of potential meanings.”).
Indeed, twentieth century American legal realists observed that all law might be indeterminate. See, e.g., Karl Lewellyn, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1237 (1931) (arguing that one of the hallmarks of realism is “distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 843 (1935) (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”); see also H.L.A. Hart, The Concept of Law

204

(2d ed. 1994) (“[T]he open texture of law leaves a vast field for creative activity which some call legislative.”). ↑
See, e.g., Phillip Allott, Interpretation—An Exact Art, in Interpretation in International Law

,

supra

note 12, at 373, 375 (noting that “[t]o anyone who knows anything about . . . epistemology” the idea that treaties have meaning “may seem comical in its naivety”); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 8 (2006) (“Meaning is not . . . present in the expression itself.”); Ian Johnstone, Introduction, 102 Am. Soc’y Int’l L. Proc. 411, 411 (2008) (noting debates over whether interpreters are “making law, based on values and policy choices”); see also Note, ‘Round and ‘Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95 Harv. L. Rev. 1669, 1678 (1982) (noting that critical scholars recognize the “historical contingency of law” and doctrinal first principles “represent mere choices of one set of values over another”); discussion infra Subsection I.B.2 (developing these points). ↑
Crawford, supra note 14, at v (“[I]nternational lawyers think that their interpretations are right, and they play the game [of interpretation] by trying to convince others of this.”). The term “constructivist” is appropriate here because the term “epistemic community” arose out of constructivist international relations theory. Michael Waibel, Interpretive Communities in International Law, in Interpretation in International Law

,

supra note 12, at

147, 149.

↑
See Waibel, supra note 28, at 148 (calling interpretation a “contest”); Crawford, supra note 14, at v (calling interpretation a “game”); Andrea Bianchi, The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle, in Interpretation in International Law

,

supra note

12

,

at

34, 34 (

calling interpretation a “game”); Yanbai Andrea Wang, The Dynamism of Treaties, 78 Md. L. Rev. 828, 837 (2019) (calling treaties “departure points for further bargaining”). ↑
See infra Part III. ↑
See Eyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167, 170–71 (1999) (conceiving of the sovereign state as an agent of small interest groups); Rachel Brewster, The Domestic Origins of International Agreements, 44 Va. J. Int’l L. 501, 539 (2004) (noting that governments make international agreements in response to domestic needs); Melissa J. Durkee, International Lobbying Law, 127 Yale L.J. 1742, 1747 (2018) (describing the “quotidian reality of international lobbying”). The fact that international lawmakers face pressures from domestic constituencies has long been a matter of interest within international relations. See, e.g., Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513, 518 (1997) (arguing that in liberal international relations theory, domestic constituencies construct state interests); Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427, 433–34 (1988) (theorizing that the negotiating behavior of national leaders reflects the dual and simultaneous pressures of international and domestic political games). ↑
These conversations are playing out in multiple disciplines. See, e.g., John Braithwaite & Peter Drahos, Global Business Regulation 5–7, 27–33 (2000) (sociology); Walter Mattli & Ngaire Woods, Introduction to The Politics of Global Regulation, at ix, x–xii (Walter Mattli & Ngaire Woods eds., 2009) (political science); A. Claire Cutler, Virginia Haufler & Tony Porter, Private Authority and International Affairs, in Private Authority and International Affairs 3, 4 (A. Claire Cutler, Virginia Haufler & Tony Porter eds., 1999) (international relations); Tim Büthe & Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy 5 (2011) (law); Joshua Barkan, Corporate Sovereignty: Law and Government Under Capitalism 8–14 (2013) (political geography). ↑
Kenneth W. Abbott, David Levi-Faur & Duncan Snidal, Theorizing Regulatory Intermediaries: The RIT Model, 670 Annals Am. Acad. Pol. & Soc. Sci. 14 (2017). This literature seeks to understand how “state actors, private organizations, and civil society actors mediate the meaning of legal rules in regulatory governance arrangements that they participate in.” Shauhin Talesh, Rule-Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements, 37 Law & Pol’y 1, 2 (2015). ↑
Martha Finnemore & Katheryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 893 (1998) (introducing the idea that norms “cascade” through an international system after a sufficient number of states adopt the norm; advocacy groups can help initiate this process by serving as “norm entrepreneurs”). The “norm cascade” literature has focused on advocacy groups, id., rather than private sector norm entrepreneurs, and has focused on the role of non-governmental organizations in the emergence of a norm rather than the interpretation of that norm once a treaty has been adopted. See Heidi Nichols Hadad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 187 (2013) (noting the assumption that “NGOs exercise their greatest impact on norm change during the early stages of norm emergence”). ↑
Rahim Moloo, Changing Times, Changing Obligations? The Interpretation of Treaties Over Time, 106 Am. Soc’y Int’l L. Proc. 261, 261, 264 (2012) [hereinafter Moloo, Changing Times?] (noting that while treaties are hard to amend, treaty interpretation can adapt treaties to changing circumstances). ↑
See infra Section I.A. (reviewing this debate). ↑
See Joseph J. Ellis, The Supreme Court Was Never Meant to Be Political, Wall St. J. (Sept. 14, 2018), https://www.wsj.com/articles/stop-pretending-the-supreme-court-is-above-politics-1536852330 [https://perma.cc/TU2G-95XW] (examining the importance of presidential nominations of Justices to the Supreme Court by pointing to the growth of seemingly political 5-4 decisions since 1954); see also Carl Hulse, Political Polarization Takes Hold of the Supreme Court, N.Y. Times (July 5, 2018), https://www.nytimes.com/2018/07/05/us/politics/political-polarization-supreme-court.html [https://perma.cc/P6SK-KNGR] (observing perceptions that the Supreme Court is becoming more politically polarized and less neutral). ↑
E.g., Most Americans Trust the Supreme Court, but Think It Is ‘Too Mixed Up in Politics,’ Associated Press (Oct. 16, 2019), https://apnews.com/PR%20Newswire/ca162cc‌03b3261ff608ab7d8cfc31a25 [https://perma.cc/7U2X-VURA] (reporting on surveys that reflect that a growing number of the American public views the Supreme Court as partisan). ↑
Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 470 (1988) (book review) (“Social context, the facts of the case, judges’ ideologies, and professional consensus critically influence individual judgments and patterns of decisions over time. The realists felt that study of such factors could improve predictability of decisions.”); Lewellyn, supra note 26, at 1237 (arguing that one of the hallmarks of realism is “distrust . . . that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Cohen, supra note 26, at 843 (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”). ↑
Bradley & Goldsmith, supra note 12, at 1203 (arguing that “Presidents have come to dominate the making, interpretation, and termination of international law for the United States”). ↑
Harlan Grant Cohen, The Death of Deference and the Domestication of Treaty Law, 2015 BYU L. Rev. 1467, 1469 (2015) [hereinafter Cohen, Death of Deference]. ↑
Restatement (Third) of the Foreign Relations Law of the United States § 326 (Am. L. Inst. 1986). ↑
Cohen, Death of Deference, supra note 41, at 1467. ↑
See, e.g., Linda D. Jellum, The Theories of Statutory Construction and Legislative Process in American Jurisprudence, in Logic in the Theory and Practice of Lawmaking

173, 174 (Michał Araszkiewicz & Krzysztof Płeszka eds., 2015) (introducing the competing theories of statutory interpretation as applied in American jurisprudence). Debates implicate theories like originalism, textualism, and intentionalism, and include familiar questions about whether interpretation should privilege the specific intent of the drafters or render the text adaptable to new circumstances. See id. at 181–94. ↑
See id.at 180 (explaining that judges use canons of construction to discern legislative meaning; some of these have at times been highly controversial, and their use has changed over time). ↑
See Choper, supra note 15, at 1–2 (describing debates, perspectives, and issues). ↑
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also Bernard W. Bell, Marbury v. Madison and the Madisonian Vision, 72 Geo. Wash. L. Rev.

197, 197 (2003) (“[T]hat the Court in at least some instances has the power to enforce the Constitution by invalidating the actions of all government officials, even Congress and the [P]resident acting through the legislative process—is no longer seriously contested.”). ↑
See Posner, supra note 12, at 1–2 (examining potential theories for why the ICJ’s light caseload has declined over the long term relative to the number of states). ↑
See Cohen, Theorizing Precedent, supra note 12, at 269 (“International law today . . . generally denies international precedents doctrinal force. . . . [J]udicial decisions construing international law are not in and of themselves law—decisions are not binding on future parties in future cases, even before the same tribunal.”). ↑
Ulrich Fastenrath, Relative Normativity in International Law, 4 Eur. J. Int’l L. 305, 335 (1993). ↑
See Curtis A. Bradley & Judith G. Kelley, The Concept of International Delegation, 71 Law & Contemp. Probs. 1, 1, 14 (2008) (“[T]he individual state surrenders some autonomy to international bodies . . . by authorizing them to participate in decision-making processes and to take actions that affect the state. . . . A regulatory delegation grants authority to create administrative rules to implement, fill gaps in, or interpret preexisting international obligations.”). ↑
See, e.g., Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 3, WTO Doc. WT/DS58/AB/RW (adopted Nov. 21, 2001) (deciding whether the United States could prohibit the importation of certain shrimp and shrimp products under Article XX(g) of the GATT 1994). ↑
Convention Relating to the Status of Refugees art. 1, July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954) (defining “refugee”); see also M. Akram Faizer, America First: Improving a Recalcitrant Immigration and Refugee Policy, 84 Tenn. L. Rev. 933, 953–54 (2017) (“Refugees are entitled to claim protection under the Refugee Convention while economic migrants are excludable and deportable . . . .”). ↑
See David N. Cinotti, How Informed is Sovereign Consent to Investor-State Arbitration?, 30 Md. J. Int’l L. 105, 113 (2015) (discussing Philip Morris’s arbitrations against Uruguay for requiring graphic images on the warning labels on cigarette cartons). ↑
Melissa J. Durkee, Interstitial Space Law, 97 Wash. U. L. Rev. 423, 452 (2019) (noting that the answer to whether companies may legally make commercial use of outer space resources depends on interpretation of the Outer Space Treaty). ↑
Jeffrey L. Dunoff & Mark A. Pollack, Reviewing Two Decades of IL/IR Scholarship: What We’ve Learned, What’s Next, in Interdisciplinary Perspectives on International Law and International Relations 626, 637–38 (Jeffrey L. Dunoff & Mark A. Pollack eds., 2013) (“[M]ost legal interpretation takes place outside of courts. . . . But this activity has largely fallen outside the purview of IL/IR scholarship. . . . The methodological challenges of studying dispute settlement outside the judicial arena are substantial . . . .”). But see Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (2012) (exploring how actors who hold semantic authority can shift the meanings of international legal texts through discourse about them). ↑
See Cohen, Theorizing Precedent, supra note 12, at 269 (international judicial decisions lack precedential value); Posner, supra note 12, at 1 (international courts do not decide many cases). ↑
See, e.g., Anthony Aust, Modern Treaty Law and Practice 233 (2d ed. 2007) (“[W]hatever the mechanism by which a dispute about the interpretation or application of a treaty is determined, the body will be guided by the principles and rules in Articles 31 and 32 [of the Vienna Convention].”); Richard K. Gardiner, Treaty Interpretation 9 (2d ed. 2015) (“This book is not about theory. It is about the practical use of the Vienna rules.”); The Oxford Guide to Treaties 475–550 (Duncan Hollis ed., 2012) (focusing three chapters on interpretation on the Vienna Convention rules and special circumstances where it is necessary to diverge from them); Christian J. Tams, Antonios Tzanakopoulous & Andreas Zimmermann, Research Handbook on the Law of Treaties, at xi–xii (Christian J. Tams, Antonios Tzanakopoulous & Andreas Zimmermann eds., 2014). ↑
Peat & Windsor, supra note 14, at 6–7. ↑
Raz, supra note 25, at 264. ↑
Peat & Windsor, supra note 14, at 9 (quoting Raz, supra note 25, at 241–64). ↑
It should be noted that some who advance purposive or evolutive theories of treaty interpretation may chafe at being placed in the “formalist” camp. These thinkers consider only stricter textualists to be formalists and call themselves something else, perhaps “functionalists.” The point of lumping all these positions together here is not to eliminate these important distinctions, but to show that much of the international legal scholarship on interpretation focuses on how to apply the rules of the game, the Vienna Convention rules, as each of these positions does. See infra notes 69–78 and accompanying text. ↑
Vienna Convention on the Law of Treaties, supra note 23, 1155 U.N.T.S. at 340. Even states that have not joined the Vienna Convention, like the United States, usually consider the treaty’s rules to be legally binding through customary international law. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights and Conditional Consent, 149 U. Pa. L. Rev. 399, 424 (2000) (noting that U.S. scholars and executive branch officials accept that many provisions of the Vienna Convention have entered into custom). The International Court of Justice has also treated the Vienna Convention’s interpretive rules as binding through custom. Frederic L. Kirgis, Jr., Custom on a Sliding Scale,

81

Am. J. Int’l L. 146, 149 n.16 (1987) (observing “the readiness of international tribunals,” including the ICJ, “to accept, as custom, the major substantive provisions of the Vienna Convention on the Law of Treaties”). ↑
Vienna Convention on the Law of Treaties, supra note 23, 1155 U.N.T.S. at 340. ↑
Id. (defining the context to include the preamble and annexes, among other things). ↑
Id. Note that the preparatory work of the treaty is the international version of legislative history. ↑
Id. ↑
Peat & Windsor, supra note 14, at 6. ↑
See, e.g., Isabelle Buffard & Karl Zemanek, The “Object and Purpose” of a Treaty: An Enigma?, 3 Austrian Rev. Int’l & Eur. L. 311, 315 (1998); David S. Jonas & Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive Methods, 43 Vand. J. Transnat’l L.

565, 577 (2010).

↑
See Rebecca Crootof, Change Without Consent: How Customary International Law Modifies Treaties, 41 Yale J. Int’l L. 237, 252 (2016) (identifying these as the “three primary schools of thought on treaty interpretation”). ↑
See, e.g., Julian Arato, Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations, 38 Yale J. Int’l L. 289, 294 (2013) (discussing approaches to treaty interpretation based on the original and subsequent intent of state parties). ↑
See, e.g., Georg Nolte, Introduction to Treaties and Subsequent Practice 1–2 (Georg Nolte ed., 2013); Crootof, supra note 70, at 240; Rahim Moloo, When Actions Speak Louder Than Words: The Relevance of Subsequent Party Conduct to Treaty Interpretation, 31 Berkeley J. Int’l L. 39, 57 (2013) [hereinafter Moloo, Subsequent Party Conduct] (discussing the type of subsequent conduct relevant to treaty interpretation according to the Vienna convention). ↑
See, e.g., Yahli Shereshevsky & Tom Noah, Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts, 28 Eur. J. Int’l L.

1287, 1310 (2017) (finding that “preparatory work can play a significant role in decision making”). ↑
See Julian Arato, Accounting for Difference in Treaty Interpretation Over Time, in Interpretation in International Law

,

supra note 12, at 205, 205–06 (collecting evidence that courts have taken a distinctive approach to the interpretation of human rights treaties). ↑
E.g., Neha Jain, Interpretive Divergence, 57 Va. J. Int’l L. 45, 47–48 (2017) (challenging an “orthodox” position of treaty interpretation through an examination of the Rome Statute of the International Criminal Court). ↑
E.g., Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body, at lxiii (2009) (examining interpretive methods in WTO jurisprudence). ↑
E.g., Rebecca M. Kysar, Interpreting Tax Treaties, 101 Iowa L. Rev. 1387, 1389–91 (2016) (arguing that because of the distinctive features of tax treaties, courts are justified in relying on extrinsic materials when interpreting them). ↑
E.g., Joanna Jemielniak, Legal Interpretation in International Commercial Arbitration 61–64 (2014). ↑
Another question formalists may care about, which lies beyond the scope of this project, is whether real-world processes of international legal interpretation moves take place outside of the ambit of national sovereignty or delegated authority. Are non-state interpreters competing with sovereigns or displacing authoritative interpretations? ↑
After all, as the previous discussion illustrated, questions about how properly to apply the Vienna Convention are what fuel the voluminous scholarly debates. See supra Subsection I.B.1. ↑
The critical legal studies movement has developed and amplified the critique, but it began much earlier. See Hersch Lauterpacht, Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties, 26 Brit. Y.B. Int’l L. 48, 53 (1949) (noting that rules are “not the determining cause[s] of judicial decision, but the form in which the judge cloaks a result arrived at by other means”). ↑
Peat & Windsor, supra note 14, at 12; see also, Johnstone, supra note 27, at 411 (2008) (querying whether interpreters are “making law, based on values and policy choices”). ↑
Owen Fiss famously called this the “nihilist challenge” to law. See Owen M. Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739, 741 (1982) (“The nihilist would argue that for any text . . . there are any number of possible meanings, that interpretation consists of choosing one of those meanings, and that in this selection process the judge will inevitably express his own values.”). ↑
Koskenniemi

,

supra note 27, at 18. ↑
Id. at 531 (emphasis added). ↑
Ingo Venzke, Is Interpretation in International Law a Game?, in Interpretation in International Law

,

supra note 13, at 352, 353. ↑
Id. at 359. ↑
Id. at 353. See also id. at 352–53 (describing three common ways of understanding “what it means to play the interpretive game”). ↑
Fiss, supra note 83, at 741; see also Martti Koskenniemi, International Law and Hegemony: A Reconfiguration, 17 Cambridge Rev. Int’l Affs. 197, 199 (2004) (finding that international actors use legal meaning as a tool to “challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract those of their opponents”). ↑
Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 Am. J. Int’l L. 613, 614–15 (1991). ↑
See id. at 621–22 (“In both states and international organizations the invisibility of women is striking. . . . [W]omen have significant positions of power in very few states, and in those where they do, their numbers are minuscule.”). This results in legal regimes where “issues traditionally of concern to men become seen as general human concerns” and “women’s concerns” are marginalized. Id. at 625. ↑
See Moshe Hirsch, The Sociology of International Law: Invitation To Study International Rules in Their Social Context, 55 U. Toronto L.J. 891, 929–30 (2005) (summarizing this literature). ↑
For example, feminist thinkers have proposed that treaty interpretation should recognize the omission of women in lawmaking. Since men have held privileged positions in developing treaty texts, the interpretation of treaties should favor women, as the weaker parties. Id. at 930. For example, “treaty rules that protect women’s rights . . . should be interpreted expansively, and rules that prejudice women’s legal interests should be narrowly construed.” Id. ↑
A recent volume on “Feminist Judgments in International Law” makes both the explicit and implicit point that identity of the interpreter shapes the legal interpretation. Editors of the volume claim that a feminist chamber may, among other things, “place greater emphasis on the context of a dispute; highlight the impact of power and politics on international law decision-making; foreground the experiences of individuals; [or] offer a different interpretation of rules and rights . . . .” Feminist Judgments in International Law 14 (Loveday Hodson & Troy Lavers eds., 2019). The authors make this point implicitly as well, as the conceit of the book is to rewrite a number of different judicial decisions in international law from a feminist perspective, demonstrating that the perspective of the interpreter matters. See id. at 8 (explaining that “the aim of the project . . . [is] to take the feminist re-writing methodology and apply it to the decisions of international tribunals,” thereby “telling the story differently”). ↑
B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8

Int’l. Cmty. L. Rev.

3

, 15 (2006). ↑
Id. at 12–13. ↑
See id. at 13 (noting that “the WTO Appellate Body has interpreted the texts in a manner as to upset the balance of rights and obligations agreed to by third world States”). Chimni offers as an example the Appellate Body’s interpretation of the balance between trade and environmental concerns, an interpretation that, he claims, “was never envisaged by third world States” and has brought detrimental consequences. Id. ↑
Id. at 22 (“[B]oth feminist and third world scholarship address the question of exclusion by international law.”). ↑
Ian Johnstone, Treaty Interpretation: The Authority of Interpretive Communities, 12 Mich. J. Int’l L. 371, 378 (1991) [hereinafter Johnstone, Interpretive Communities]. ↑
See id; cf. J.M. Balkin & Sanford Levinson, Interpreting Law and Music: Performance Notes on “The Banjo Serenader” and “The Lying Crowd of Jews,” 20 Cardozo L. Rev. 1513, 1519–20 (1999) (discussing the role of the audience in determining whether an interpretation of a text is “authentic or faithful”). ↑
See Waibel, supra note 28, at 147. ↑
See Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities 14 (1980) (offering a literary theory argument that it is interpretive communities who determine the meanings of texts); see also Peat & Windsor, supra note 14, at 10 n.48. The idea is that “[t]he text is not an object entirely independent of its reader, nor is interpretation an entirely individual and subjective activity; meaning is produced by neither the text nor the reader but by the interpretive community in which both are situated.” Johnstone, Interpretive Communities, supra note 99, at 378. ↑
Johnstone, Interpretive Communities, supra note 99, at 374 (noting Fiss’s proposal that, as in the case of literary interpretation, “legal interpretation is constrained by a set of disciplining rules recognized as authoritative by an interpretive community”). ↑
See id. at 375 (“Fiss emphasizes that the interpretive community of judges has authority to confer on particular interpretations because judges belong to the community . . . .”). Judges do not claim that their interpretation is authoritative by arguing for its superior merits as an intellectual matter but rather by “by virtue of their office[s]” as judges. Id. “[T]he interpretive community of judges has authority to confer on particular interpretations because judges belong to the community” that holds the societal mandate to make authoritative interpretations. Id. ↑
Id. at 385. ↑
Id. ↑
Id. at 378 (noting that it is these practices and conventions that constrain interpretive discretion). ↑
See id. at 380. The interpretive process is relational, as parties “generate, elaborate and refine shared understandings and expectations.” Id. at 381. That idea that interpretation is a persuasive endeavor blossomed inevitably into the idea that interpretation is a game with players, strategies, objectives, and rules of play. A recent edited volume on interpretation by Andrea Bianchi and coauthors explicitly adopts the metaphor of the game. Bianchi, supra note 29. ↑
Tobin, supra note 26, at 9. ↑
Id. at 3–4. ↑
Id. at 49 (“The task of interpretation must therefore be seen not simply as the attribution of meaning to a legal text but also as an attempt to persuade the relevant interpretive community that a particular meaning from within a suite of potential meanings should be adopted.”). ↑
Id. at 14–48 (offering suggestions for how non-judicial actors might persuasively interpret human rights norms for audiences such as domestic government officials). ↑
See generally id. (focusing on non-governmental organizations, academics, and international organizations as among the non-judicial actors concerned with human rights norms). ↑
See Frederick Schauer, Pitfalls in the Interpretation of Customary Law, in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives 13, 13 (Amanda Perreau-Saussine & James Bernard Murphy eds., 2007) (“Much has been written on the legal status of customary law, but considerably less attention has been devoted to the question of determining the content of the customary law whose legal status (or not) is at issue.”); Orfeas Chasapis Tassinis, Customary International Law: Interpretation from Beginning to End, 31 Eur. J. Int’l L. 235, 235 (2020) (“International lawyers seldom think of customary law and interpretation under the same heading.”). ↑
See, e.g., Chasapis Tassinis, supra note 114, at 236 (“[T]he dominant approach has largely reduced the analysis of customary international law to its identification through the collection of appropriate evidence.”); Curtis A. Bradley, Customary International Law Adjudication as Common Law Adjudication, in Custom’s Future: International Law in a Changing World 34, 34–39 (Curtis A. Bradley ed., 2016) (collecting debates, including whether custom requires both elements of practice and opinio juris; how it is possible to discern opinio juris; that there is no standard as to how much state practice is necessary; how to weigh various evidences of custom formation; how much evidence is necessary to determine whether custom has formed; whether custom is undemocratic; and so forth); Monica Hakimi, Making Sense of Customary International Law, 115 Mich. L. Rev. 1487, 1505 (2020) (arguing that a proposed customary international legal rule acquires force based on “how the group of actors who participate in a given domain of global governance interact with the position”); J. Patrick Kelly, The Twilight of Customary International Law, 40 Va. J. Int’l L.

449, 452 (2000) (contending that the use of customary international law should be disfavored); Joel P. Trachtman, The Growing Obsolescence of Customary International Law, in Custom’s Future

,

supra, at 172,

172

(noting that many areas once covered by custom should now be codified in treaties); Andrew T. Guzman, Saving Customary International Law, 27 Mich. J. Int’l L. 115, 119 (2005) (weighing relative usefulness of custom and treaties). ↑
Schauer, supra note 114, at 13. ↑
In practice, critical, formal, or constructive views tend to focus on the identification rather than the interpretation of custom. Chasapis Tassinis, supra note 114, at 236. That is, the theoretical debates are often channelled into questions about whether a customary international legal norm exists rather than debates about how to interpret an existing norm. See, e.g., B.S. Chimni, Customary International Law: A Third World Perspective, 112 Am. J. Int’l L. 1, 7 (2018) (claiming that “CIL rules embody ‘hegemonic’ ideas and beliefs”); Daniel H. Joyner, Why I Stopped Believing in Customary International Law, 9 Asian J. Int’l L. 31, 39 (2019) (“[A]ll of us—international courts, the ILC, and academics—in fact use our corrupted methodologies for determining the presence of CIL in order to serve our own instrumentalist ends.”); Bradley, supra note 115 (collecting critiques). ↑
Custom therefore offers parallels to the common law in the United States and Commonwealth nations. See Bradley, supra note 115, at 34 (developing the theory that “[t]he application of CIL by an international adjudicator . . . is best understood in terms similar to the judicial development of the common law”); see also Chasapis Tassinis, supra note 114, at 237 (noting that “interpretation . . . can be applied not just to words and text but also to social practices and unwritten rules”). ↑
Thus, one way to describe custom is as “the generalization of the practice of States,” as Judge Read did in the ICJ’s Fisheries Case. Fisheries (U.K. v. Nor.), Judgment, 1951 I.C.J. Rep. 116, 191 (Dec. 18) (Read, J., dissenting); see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 207 (June 27) (“[F]or a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice,’ but they must be accompanied by the opinio juris sive necessitatis. . . . [Relevant States] must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.’”); North Sea Continental Shelf (Ger./Den.; Ger./Neth.), Order, 1969 I.C.J. Rep. 3, ¶ 77 (Feb. 20) (“The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even the habitual character of the acts is not in itself enough.”); Statute of the International Court of Justice art. 38(1)(b) (providing that the Court “shall apply . . . international custom, as evidence of a general practice accepted as law”). ↑
Schauer, supra note 114, at 13. ↑
Id. at 15 (arguing that interpretive questions are “no less relevant when the question is the interpretation . . . of customary law”). ↑
Id. at 16. ↑
Custom is also susceptible to the critique from American legal realism that law may not substantially constrain decision makers; it is also susceptible to questions about whether interpretation is a coherence-based process that develops within communities or a deductive one that produces a single correct answer. Chimni, supra note 117, at 15–16; see also Chasapis Tassinis, supra note 114, at 237–38 (pointing out that acknowledging that using customary international law requires “interpretive choices at every juncture of custom’s life” reveals the challenge of plasticity, or the idea that “legal analysis may theoretically yield rules of different . . . scope while using the exact same evidence”). ↑
Schauer, supra note 114, at 16. ↑
See, e.g., Andrea Bianchi, The International Regulation of the Use of Force: The Politics of Interpretive Method, 22 Leiden J. Int’l L. 651, 653–54 (2009) (proposing that interpretive communities can include “the handful of academics” that specialize in a particular rule’s application, “non-governmental organizations, lobbies, and pressure groups that may have an interest in particular instances, and intellectuals and opinion-makers who influence public opinion by publicly voicing their position on any given matter”); Johnstone, Interpretive Communities, supra note 99, at 385 (identifying two interpretive communities for treaties: first, officials directly responsible for treaty interpretation; and second, the broader international legal community consisting of “all experts and officials engaged in the various professional activities associated with treaty practice”). ↑
See, e.g., Gardiner, supra note 58 (focusing on international entities that hold formal or delegated authority to interpret, such as international organizations, international courts and tribunals, and national legal systems; omitting mention of non-state actors); Dunoff & Pollack, supra note 56, at 637 (noting international legal scholarship’s “almost exclusive emphasis on judicial behavior and its relative neglect of legal interpretation per se”). ↑
Daniel Peat and Matthew Windsor have proposed a similar set of questions, including: What is the “purpose of interpretation in the international legal system”? Do “actors’ interpretations differ according to their professional identities”? Does “strategy motivate[] interpretive choice”? Peat & Windsor, supra note 14, at 4. ↑
E.g., Shaffer & Ginsburg, supra note 16, at 1 (“What matters now is the study of the conditions under which international law is formed and has effects.”). The lack of attention to these questions on the international stage contrasts with attention to these interpretive questions in the domestic context, as in U.S. domestic law. See, e.g., Kent Greenawalt, Statutory and Common Law Interpretation 4 (2013); Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 1–3 (2010); Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 1 (2006). It also contrasts with scrutiny of these questions in other disciplines. See, e.g., Fish, supra note

102

, at 13–14 (literary theory). ↑
See, e.g., Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders 7–9 (2012) (global legal pluralism); Büthe & Mattli, supra note 32, at 1–2 (private sector standard setting organizations); Terence C. Halliday & Gregory Shaffer, Transnational Legal Orders, in Transnational Legal Orders 3, 3 (Terence C. Halliday & Gregory Shaffer eds., 2015) (transnational legal orders); Kenneth W. Abbott & David Gartner, Reimagining Participation in International Institutions, 8 J. Int’l L. & Int’l Rel. 1, 4 (2012) (multi-stakeholder structures); Kenneth W. Abbott & Duncan Snidal, Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit, 42 Vand. J. Transnat’l L. 501, 504–06 (2009) (cooperative public-private mechanisms and projects). ↑
See generally Kishnathi Parella, Treaty Penumbras, 38 U. Penn. J. Int’l L. 275, 303–11 (2017) (reviewing the robust literature that responds to institutionalized efforts to engage the business sector through the Global Compact, the Ruggie Principles, and other efforts); see also supra note 32 and accompanying text (gathering a multidisciplinary literature on global corporate influence). ↑
See generally sources cited supra notes 9–10 (lobbying and campaign contributions); Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights 62 (2018) (personhood). ↑
See Gregory C. Shaffer, How Business Shapes Law: A Socio-Legal Framework, 42 Conn. L. Rev. 147, 150 (2009) (proposing this area of research); Paul B. Stephan, Privatizing International Law, 47 Va. L. Rev. 1573, 1595–1601 (2011) (noting a lack of information about the degree and effect of corporate participation in international lawmaking). ↑
Finnemore & Sikkink, supra note 34, at 893–94. ↑
Id. at 893–98. ↑
Id. ↑
Id. at 899; see also Erica Sandhu, Completing the Norm Life Cycle: The Post-Treaty Involvement of NGOs in the Mine Ban Treaty and Chemical Weapons Convention 5–7 (Aug. 2014) (M.A. thesis, University of British Columbia), https://open.library.ubc.ca/cIRcle/‌collections/ubctheses/24/items/1.0166964 [https://perma.cc/4K4C-4BDB]. ↑
See Sandhu, supra note 136, at 1. ↑
Heidi Nichols Haddad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 196 (2013). ↑
See, e.g., Abbott, Levi-Faur & Snidal, supra note 33, at 14. ↑
Id. ↑
Id. at 15. ↑
Talesh, supra note 33, at 4 (2015). ↑
Crootof, supra note 70, at 252 (identifying as “[a]daptive interpretations” those that are “not immediately suggested by the treaty, but which attempt to reconcile outdated text with actual (or sometimes desired) state action”). ↑
Moloo, Changing Times?, supra note 35, at 261 (noting that treaties are hard to amend and suggesting “we look to treaty interpretation tools to adapt treaties to evolving circumstances”). ↑
Wang, supra note 29, at 837. ↑
Id. ↑
See Karen J. Alter, The Future of International Law, in A New Global Agenda: Priorities, Practices, and Pathways of the International Community, at 25,

30–31 (

Diana Ayton-Shenker ed., 2018) (tracing a variety of forms of backlash against the international liberal order). ↑
See id. ↑
See generally Eskridge, supra note 9, at 5 (developing a history of U.S. federal lobbying regulation through 1954); Susman & Luneburg, supra note 9, at 23 (offering a history of U.S. lobbying law since 1955). ↑
See generally Durkee, supra note 31, at 1747 (describing the “quotidian reality of international lobbying”). ↑
See generally Melissa J. Durkee, The Business of Treaties, 63 UCLA L. Rev. 264 (2016) [hereinafter Durkee, Business of Treaties] (describing business influence in international treaty making). ↑
Convention on International Interests in Mobile Equipment, Nov. 16, 2001, 2307 U.N.T.S. 285. ↑
See Roy Goode, From Acorn to Oak Tree: The Development of the Cape Town Convention and Protocols, 17 Unif. L. Rev. 599, 599–601 (2012) (providing aims of Cape Town Convention). ↑
See Mark J. Sundahl, The “Cape Town Approach”: A New Method of Making International Law, 44 Colum. J. Transnat’l L. 339, 345 (2006) (offering background on the default rules in security interests law). ↑
Id. at 345–46. ↑
See Sandeep Gopalan, Comment, Harmonization of Commercial Law: Lessons from the Cape Town Convention on International Interests in Mobile Equipment, 9 Law & Bus. Rev. Ams. 255 (2003) (discussing the role of the Cape Town Convention in harmonizing regulatory law for the aviation industry). ↑
See Roy Goode, The Cape Town Convention on International Interests in Mobile Equipment: A Driving Force for International Asset-Based Financing, 7 Unif. L. Rev. 3, 7–9 (2002) (describing the priority rules and international registry). ↑
See id. at 7. ↑
See Durkee, Business of Treaties, supra note 151, at 294 (describing how business actors were involved in drafting language and structure of the treaty as well as a ratification campaign); Goode, supra note 153, at 606 (noting that a business working group mounted a substantial campaign that proved indispensable to the development of the Cape Town Convention). ↑
See Durkee, Business of Treaties, supra note 151, at 294; Goode, supra note 153, at 606. ↑
See Durkee, Business of Treaties, supra note 151, at 295–96. ↑
Convention on International Interests in Mobile Equipment (Cape Town, 2001) – Status, International Institute for the Unification of Private Law (UNIDROIT), https://www.unidroit.org/status-2001capetown [https://perma.cc/PL5L-UGDJ] (last visited Feb. 20, 2021). ↑
See Gopalan, supra note 156, at 255. ↑
Inside AWG: Members, Aviation Working Group, http://www.awg.aero/inside-awg/members/ [https://perma.cc/3J5X-LWM8] (last visited Jan. 31, 2021). ↑
Inside AWG: Who We Are, Aviation Working Group, http://www.awg.aero/inside-awg/who-we-are/ [https://perma.cc/ZU8T-4B7G] (last visited Jan. 31, 2021). ↑
Inside AWG: Members, Aviation Working Group, http://www.awg.aero/inside-awg/members/ [https://perma.cc/3J5X-LWM8] (last visited Jan. 31, 2021). ↑
Our Projects: Cape Town Convention, Aviation Working Group, http://www.awg.aero/‌project/cape-town-convention/ [https://perma.cc/FC3F-AL6W] (last visited Jan. 31, 2021). ↑
Id. ↑
See id. ↑
See, e.g., id. (encouraging states to ensure that any declaration under the Convention restricts preferred non-consensual liens and rights to those that are customary). ↑
Aviation Working Group, Self-Instructional Materials 15 (1st ed. 2014), http://awg.aero/wp-content/uploads/2019/10/Self%20Instructional%20Materials.pdf [https://perma.cc/DTW2-235D] (emphasis added). ↑
Id. at 28 (emphasis added) (clarifying that the Convention may not override national law on remedies). ↑
See id. ↑
Id. at 19. ↑
Id. at 28 (emphasis added). ↑
Id. at 15. ↑
Id. at Foreword. ↑
Id. at Foreword. ↑
Id. at 15. ↑
Cape Town Convention Compliance Index, Aviation Working Group, http://www.awg.aero/wp-content/uploads/2019/10/CTC-Compliance-Index-Website-updated-October-2019.pdf [https://perma.cc/36FY-CLA3] (last visited Feb. 21, 2021). ↑
Id. (noting that the index is expected to come online in early 2020). ↑
The Group has released a methodology summary, but this does not offer information as to how the Group defines the terms and intent of the treaty for the purposes of its assessment. See Our Projects: Cape Town Convention, Aviation Working Group, http://www.awg.‌aero/project/cape-town-convention/ [https://perma.cc/2ARS-99XD] (last visited Feb. 21, 2021). ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
See, e.g., Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 75, 87 (2017) (exploring, inter alia, debate about international law that applies to private sector lunar exploration); Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 37 (2017) (same, with an expanded focus on various outer space activities); Comm. on the Peaceful Uses of Outer Space, Rep. on Its Sixtieth Session, ¶¶ 227–37, U.N. Doc. A/72/20 (2017) (recording debate between nations in an international forum). ↑
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. II, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty] (emphasis added). ↑
See, e.g., Zachos A. Paliouras, The Non-Appropriation Principle: The Grundnorm of International Space Law, 27 Leiden J. Int’l L.

37, 50 (2014) (“[A]s a matter of international law, the appropriation of any part of outer space . . . by private individuals is precluded by Article II of the Outer Space Treaty. Hence, any state that confers proprietary rights in outer space would commit an internationally wrongful act . . . .”); Int’l L. Ass’n, Space Law, in Report of the Fifty-Fourth Conference Held at The Hague 405, 429 (1971) (“[T]he draftsmen of the principle of non-appropriation never intended this principle to be circumvented by allowing private entities to appropriate areas of the Moon and other celestial bodies.”); Leslie I. Tennen, Enterprise Rights and the Legal Regime for Exploitation of Outer Space Resources, 47 U. Pac. L. Rev.

281, 288 (2016) (“State recognition of claims to extraterrestrial property by its nationals is national appropriation ‘by any other means’ prohibited by Article II, no matter what euphemistic label is employed to mask the obvious.”). See generally Abigail D. Pershing, Note, Interpreting the Outer Space Treaty’s Non-Appropriation Principle: Customary International Law from 1967 to Today, 44 Yale J. Int’l L.

149, 154–57 (2019) (gathering sources to argue that the non-appropriation principle was originally intended to be construed broadly and to unambiguously prohibit any appropriation of outer space resources). ↑
See, e.g., Virgiliu Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership 48–58 (2009) (suggesting that the treaty intended to bar only national appropriation of outer space resources); Leslie I. Tennen, Towards a New Regime for Exploitation of Outer Space Mineral Resources, 88 Neb. L. Rev. 794, 799 (2010) (claiming that use of resources does not require appropriation of property, but can instead be based on a right to engage in a particular enterprise—enterprise rights, not ownership rights). See generally Julie Randolph, Fly Me to the Moon and Let Me Mine an Asteroid: A Primer on Private Entities’ Rights to Outer Space Resources, 59 For Defense, Dec. 2017, at 41, 43–47 (collecting sources). ↑
See supra note 189. ↑
See supra note 187 (legislative debates in the United States and at the United Nations Committee on the Peaceful Uses of Outer Space). ↑
See infra notes 199–209 and accompanying text. ↑
See Pollman & Barry, supra note 2, at

385.

↑
Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 40–41 (2017). ↑
Id. ↑
Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 76 (2017) (statement of Bretton Alexander, Director of Business Development and Strategy, Blue Origin). ↑
Id. (emphasis added). Alexander quite explicitly urged the U.S. government to shop around his industry’s favored interpretation of the Outer Space Treaty to international counterparts:
I think it’s important for the U.S. government through the State Department to be talking internationally with its counterparts, particularly in the U.N. Committee on Peaceful Uses of Outer Space about what the Space Treaty, Outer Space Treaty, allows and how we’re interpreting that. It’s important for us as an industry to have the certainty that . . . it’s founded in the Outer Space Treaty, which basically say[s] that those resources are available to everybody so that when we go, let’s say, to the Moon and discover water ice there, we’re not saying now we own every piece of resource on the Moon and every bit of water ice on the Moon; we’re saying, you know, we are able to utilize what we are able to extract and be able to sell that and have property rights over that but not rights to the entire Moon.

Id. (emphasis added). ↑
Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 22 (2017) (statement of George Whitesides, CEO, Galactic Ventures). ↑
Id. at 13 (statement of Robert Meyerson, President, Blue Origin). ↑
Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 23–35 (2017) (statement of Bob Richards, Founder and CEO, Moon Express, Inc.). ↑
See Pollman & Barry, supra note 2, at 384–85 (describing “regulatory entrepreneurship” as advancing a business model on the prospect of legal change, and then pushing for that change)

.

↑
Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 26 (2017) (statement of Bob Richards, Founder and CEO, Moon Express, Inc.). ↑
See Mike Wall, Asteroid Mining May Be a Reality by 2025, Space (Aug. 11, 2015), https://www.space.com/30213-asteroid-mining-planetary-resources-2025.html [https://perma.cc/92C2-9PPN]. ↑
Todd Bishop, Mining a $20 Trillion Asteroid? New Clues Emerge About Space Robot Startup, GeekWire (Apr. 19, 2012), https://www.geekwire.com/2012/mining-20-trillion-asteroid-clues-space-robot-startup/ [https://perma.cc/EVW9-W5WN] (reporting on plans announced by Planetary Resources Chairman Peter Diamandis in a TED talk to “go out and grab one of these [asteroids],” which he estimated to be “worth something like $20 trillion”). ↑
Kenneth Chang, If No One Owns the Moon, Can Anyone Make Money Up There?, N.Y. Times

(Nov. 26, 2017), https://www.nytimes.com/2017/11/26/science/moon-express-outer-space-treaty.html [https://perma.cc/2D4Q-FHUB] (reporting that investors included a co-founder of Google, a former chief software architect at Microsoft, and the Grand Duchy of Luxembourg). ↑
Jamie Carter, A Japanese Startup is Set To Go Hunting for Ice . . . on the Moon, Techradar (Feb. 22, 2019), https://www.techradar.com/news/japanese-startup-set-to-go-hunting-for-ice-on-the-moon [https://perma.cc/5XHL-LSK2] (noting the company intends to “kick-start a new commercial space industry” by laying groundwork for other countries to engage in activities on the moon). ↑
Id. (reporting that the company wants “to identify where water ice exists and map that out so that we can eventually learn how to use it as a resource . . . to create basic rocket fuel for spacecraft”). ↑
Id. Another example is a UK startup called the Asteroid Mining Corporation, which seeks “to extract resources from asteroids to boost the Earth’s economy and kick start the Space Based Economy.” Our Values, Asteroid Mining Corp.

,

https://asteroidminingcorporation.‌co.uk/our-vision [https://perma.cc/YP34-ZXAM] (last visited Feb. 21, 2021). The company is currently seeking investors and lobbying in the UK for introduction of legislation “clarifying” private rights over outer space resources. UK Space Resources Activities Bill, Asteroid Mining Corp.

,

https://asteroidminingcorporation.co.uk/uk-space-resources-activities-bill [https://perma.cc/54NU-DRS7] (last visited Feb. 21, 2021). ↑
International Institute of Space Law

,

https://iislweb.org/ [https://perma.cc/TSR7-7BLY] (last visited Jan. 31, 2021). ↑
Id. ↑
International Institute of Space Law Directorate of Studies, Does International Space Law Either Permit or Prohibit the Taking of Resources in Outer Space and on Celestial Bodies, and How Is This Relevant for National Actors? What Is the Context, and What Are the Contours and Limits of This Permission or Prohibition? 31 (Stephan Hobe ed., 2016), https://iislweb.org/docs/IISL_Space_Mining_Study.pdf [https://perma.cc/387R-5L3L] (industry group white paper on debate). ↑
Id. at 30–31. ↑
Id. at 31–35. ↑
Id. at 35 (acknowledging that there must be some sort of societal benefit to commercial use but proposing creative understandings of how these societal benefits might accrue; for example, they could “flow to all sectors of society through spinoffs” or “a greater and deeper understanding of space”). ↑
Tim Dorlach & Paul Mertenskötter, Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile’s Nutrition Label, 54 Law & Soc’y Rev

.

571 (2020). ↑
See id. at 586–87. ↑
Id. at 590–91. ↑
Id. at 571. ↑
Id. at 571, 583. ↑
Id. at 585. ↑
Id. at 586. ↑
Id. at 586–87 (explaining that the Chilean health ministry launched the consultation procedure by giving notice of its draft implementing regulations to the World Trade Organization, as required by the WTO’s Technical Barriers to Trade Agreement). ↑
Id. at 587. ↑
Id. ↑
Id. at 587 n.12. ↑
Id. at 586. ↑
Id. at 587, 587 n.12. ↑
Id. at 587 (including the Trade-Related Aspects of Intellectual Property Rights Agreement and the Technical Barriers to Trade (“TBT”) Agreement). ↑
Id. (opining that the nutrition label “would most likely survive a formal challenge”). ↑
Id. at 590 (referring to TBT Article 2.4). ↑
Id. ↑
Id. at 591. The authors explain that other outlying interpretations include that the “TRIPS Agreement grants a property right in trademarks,” meaning that any regulation to restrict them would “effectively expropriate trademark holders and therefore violate TRIPS,” id. at 588, and that Article 2.2 of the TBT Agreement requires regulators to “affirmatively disqualify all existing alternative[]” regulations that may be less trade restrictive, rather than putting the burden of proof on any ultimate challenger to offer evidence of a suitable alternative that is less trade restrictive, id. at 590. ↑
Id. at 591. ↑
Id. ↑
Id. at 591–92 (observing that these outlying interpretations appeared in submissions by foreign governments to Chile’s public consultation process, and in submissions to the TBT Committee’s Specific Trade Concerns mechanism). ↑
Id. at 593. ↑
Galit A. Sarfaty, Translating Modern Slavery into Management Practice, 45 Law & Soc. Inquiry 1027, 1027 (2020) (noting that these jurisdictions include, inter alia, the United Kingdom, California, and Australia). ↑
Id. ↑
Id. at 1031–32 (footnotes omitted). ↑
Id. at 1032. ↑
Id. at 1033. ↑
Id. at 1035. ↑
Id. at 1036. Safarty notes that some governments do provide a measure of guidance on how to define this norm and are now being pushed to provide more. For example, the United Kingdom agreed to offer more guidance on what must be disclosed. Id. at 1047. ↑
Id. at 1036. ↑
See id. at 1029 (noting that modern slavery is undefined both under international law and within the legislative definitions). ↑
Id. ↑
Id. at 1028–29. ↑
Id. at 1043. ↑
Id. at 1045. ↑
See id. at 1039 n.6 (noting that Sedex acknowledges the ambiguity in authoritative international sources for the “modern slavery” norm like guidance by the International Labor Organization). ↑
Id. at 1039. ↑
Id. ↑
Id. ↑
Id. ↑
Id. at 1030. ↑
Id. ↑
Id. at 1045. ↑
Id. at 1029. ↑
Anthea Roberts, State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority, 55 Harv. Int’l L.J. 1, 6 (2014) [hereinafter Roberts, State-to-State]; see also Anthea Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, 104 Am. J. Int’l L. 179, 179 (2010) (“As investment treaties create broad standards rather than specific rules, they must be interpreted before they can be applied. Investor-state tribunals have accordingly played a critical role in interpreting, hence developing, investment treaty law.”). ↑
Roberts, State-to-State, supra note 260, at 11–13. Investment treaties include Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs). See id. ↑
Anthea Roberts, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, 107 Am. J. Int’l L.

45, 76–77 (2013) [hereinafter Roberts, Clash of Paradigms] (arguing that because “investment treaties traditionally coupled short and broadly worded obligations with strong enforcement mechanisms . . . (for example, the promise to treat investors fairly and equitably) . . . the tribunal charged with interpreting and applying the standard is given wide discretion”). ↑
Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, supra note 260, at 179 (finding that the jurisprudence of the tribunals “resembles a house of cards built largely by reference to other tribunal awards and academic opinions, with little consideration of the views and practices of states in general or the treaty parties in particular”); Roberts, Clash of Paradigms, supra note 262, at 77 (noting how this “lead[s] to much investment treaty law being developed through a body of de facto precedents”). ↑
Anthea Roberts, Recalibrating Interpretive Authority

1

(Columbia FDI Persps., Working Paper No. 113, 2014), http://ccsi.columbia.edu/files/2014/01/FDI_No113.pdf [https://perma. ‌cc/A8BK-NWQF] (“As a result, much of the content of investment treaties was forged by tribunals, often in ways going beyond the intentions of the treaty parties.”). ↑
See, e.g., Julian Arato, Corporations as Lawmakers, 56 Harv. Int’l L.J

.

229, 247 (2015) (finding that the effort of multinational corporations to secure protection of favorable investment terms “has been helped along, to be sure, by a great many favorable interpretations of the broad and malleable provisions incorporated in BITs and FTAs”); Roberts, State-to-State, supra note 260, at 25 (noting concerns that “investor-state tribunals were interpreting broad and vague treaty language in ways that were overly protective of investors’ commercial interests”). Note that the investment disputes offer a unique context in international law in which private parties may bring disputes against nations directly. See generally Roberts, State-to-State, supra note 260, at 2 (reviewing these circumstances). ↑
Roberts, State-to-State, supra note 260, at 25 (also noting that arbitrators were “selected by the disputing parties, rather than the treaty parties, which meant that the tribunals often were not conscious that they were agents of the treaty parties” in performing these interpretive functions). ↑
Id. ↑
Id. at 25 n.111 (paraphrasing Gus Van Harten, Investment Treaty Arbitration and Public Law 96–99 (2007)). ↑
Id. (quoting Robert O. Keohane, Andrew Moravcsik & Anne-Marie Slaughter, Legalized Dispute Resolution: Interstate and Transnational, 54 Int’l Org. 457, 459 (2000)). ↑
Roberts, Clash of Paradigms, supra note 262, at 78 (characterizing these more precise treaties as “second generation” investment treaties, “characterized by states seeking to recalibrate this balance of power by increasing the specificity of their treaty commitments and reasserting their interpretive rights as treaty parties”).
The fact that investment treaty arbitration offers considerable room for interpretive contests by the litigants has also inspired non-governmental organizations and respondent states to try to introduce outside norms into the interpretive process, demonstrating that the interpretations that prevail are products of lively contests for meaning. See, e.g., Stephen W. Schill, The OECD Guidelines for Multinational Enterprises and International Investment Agreements: Converging Universes, in 40 Years of the OECD Guidelines for Multinational Enterprises 63, 70–76 (Nicola Bonucci & Catherine Kessedjian eds., 2018) (exploring how respondent states and non-governmental organizations as amici have raised environmental, human rights, and corporate accountability standards in investment arbitrations to try to convince investment tribunals to interpret investment treaty obligations in reference to those standards). ↑
Michael L. Barnett, One Voice, But Whose Voice? Exploring What Drives Trade Association Activity, 52 Bus. & Soc’y 213, 221 (2012). ↑
See id. at 213–14 (describing trade associations). See generally Sarah Dadush, The Internal Challenges of Associational Governance, 111 AJIL Unbound 125, 125 (2017) (analyzing relationships between trade associations and their members). ↑
Barnett, supra note 271, at 214 (internal citation omitted). ↑
Dorlach & Mertenskötter, supra note 216, at 600. ↑
Id. ↑
See discussion supra at Subsection II.A.1. ↑
This would be a productive question for further research. After all, “we have little systematic understanding” of trade associations and “[t]he lack of research . . . is lamentable.” Barnett, supra note 271, at 214. ↑
See discussion supra at Subsection II.A.4. ↑
Sarfaty, supra note 238, at 1028. ↑
Id. at 1029. The impact of platform businesses is an emerging area of scholarly attention; this case study shows that one productive target for further analysis is their impacts on law through legal interpretation. See id. ↑
See Moloo, Subsequent Party Conduct, supra note 72, at 57–78 (evaluating what subsequent conduct is relevant to treaty interpretation according to the Vienna Convention); Restatement (Third) of the Foreign Relations Law of the United States

§ 326 (

Am. L. Inst.

1987) (

instructing U.S. courts to

“

give great weight to an interpretation made by the Executive Branch”); Johnstone, Interpretive Communities, supra note 99, at 385 (defining the principal interpretive community for a treaty is “interpreters directly responsible for the conclusion and implementation of a particular treaty”). ↑
See Kishanthi Parella, The Information Regulation of Business Actors, 111 AJIL Unbound 130, 130 (2017) (finding that business actors associate with reputable organizations as they seek to avoid negative reputational consequences). ↑
See supra Subsection II.A.1. ↑
See Sarfaty, supra note 238, at 1048 (noting that the disclosures are meant to allow stakeholders to “evaluate and compare corporate performance”). ↑
Pollman & Barry, supra note 2, at 384–85. ↑
Note that this spectrum is not intended to suggest that some strategies are more effective than others, but merely to simplify and organize a wide range of activity. ↑
Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 3(b). ↑
Aust, supra note 58, at

241

. ↑
Gardiner, supra note 58, at 253. Subsequent practice is also “well-established in the jurisprudence of international tribunals.” Kasikili/Sedudu Island (Bots./Namib.), Judgment, 1999 I.C.J. 1045, ¶ 49 (Dec. 13) (quoting Int’l L. Comm’n, Reps. on the Work of Its Seventeenth and Eighteenth Sessions, U.N. Doc. A/CN.4/SER.A/1966/Add.1, ¶ 15 (1966)). ↑
Gardiner,

supra note 58, at 253 (noting that subsequent practice in treaty interpretation “is one of the features of the Vienna rules which marks out a difference from the approach taken in some legal systems to interpretation of legal texts of purely domestic origin”). ↑
Wang, supra note 29, at 834–35. ↑
Id. at 879. ↑
Outer Space Treaty, supra note 188 (entered into force Oct. 10, 1967). ↑
Hakimi, supra note 115, at 1492. ↑
Alter, supra note 147, at 30–31 (tracing a variety of forms of backlash against the international liberal order). ↑
See Moloo, Changing Times?, supra note 35, at 261 (suggesting that treaty interpretation can adapt treaties to changing circumstances). ↑
See Durkee, supra note 31, at 1788–96 (exploring proposals for lobbying reform by the Organisation for Economic Co-operation and Development and other sources). ↑
See supra Subsection II.A.1. ↑
See supra Subsection II.A.2. ↑
See supra Subsection II.A.3. ↑
A Private Sector View of International Trade Negotiations, 91 Am. Soc’y Int’l. L. Proc. 89, 91 (1997) (remarks of Maureen Smith, Vice President for International Affairs, American Forest and Paper Association). ↑
See Durkee, supra note 31, at 1742. ↑
Id. at 1759 (citing Kenneth Anderson, Global Governance: The Problematic Legitimacy Relationship Between Global Civil Society and the United Nations 16 (Am. Univ. Wash. Coll. L. Rsch. Paper Series, Working Paper No. 2008-71, 2013), https://ssrn.com/abstract=1265839 [https://perma.cc/PE76-5ZL8] (for a description of this position)). ↑
Durkee, supra note 31, at 1759. ↑
See Tobin, supra note 26, at 1–4 (recognizing that public interest non-governmental organizations participate in interpreting human rights treaties; proposing ways for them to do so more effectively). ↑
Pollman & Barry, supra note 2, at 384–85. ↑
See supra Subsection II.A.2. ↑
See id. ↑
See supra Subsection II.A.1. ↑
See, e.g., Abbott & Gartner, supra note 129, at 26 (examining these questions); Daniel Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L.J. 1490, 1498 (2006) (same); Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15, 18 (2005) (same). ↑
See, e.g., Moravcsik, supra note 31, at 513 (explaining liberal theory in international relations); Brewster, supra note 31, at 502 (showing how interest group lobbying at the national level shapes national approaches to international law); see also Benvenisti, supra note 31, at 170–72 (conceiving of the sovereign state as an agent of small interest groups). ↑
See supra notes 133–42 and accompanying text. ↑
See, e.g., W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575, 575–77 (2007) (offering a brief primer on the New Haven School approach). ↑
See, e.g., Ralf Michaels, Global Legal Pluralism, 5 Ann. Rev. L. & Soc. Sci. 243, 243–45 (2009) (reviewing literature). ↑
Halliday & Shaffer, supra note 129, at

3, 11

. ↑
See generally International Law as Behavior (Harlan Grant Cohen & Timothy Meyer eds., 2021) (highlighting a “behavioral approach” to legal scholarship); Hakimi, supra note 115, at 1489 (taking a process-based approach to customary international law); Wang, supra note 29, at 828 (analyzing treaty implementation as a product of domestic interactions); Harlan Grant Cohen, International Precedent and the Practice of International Law, in Negotiating State and Non-State Law: The Challenge of Global and Local Legal Pluralism

172, 174–75 (Michael A. Helfand ed., 2015) (taking a “communities of practice” approach to accounts of international precedent); Yahli Shereshevsky, Back in the Game: International Humanitarian Lawmaking by States, 37 Berkeley J. Int’l L. 1, 4 (2019) (showing how states sometimes adopt non-state actors’ strategies to influence lawmaking processes); Susan Block-Lieb & Terence C. Halliday, Global Lawmakers: International Organizations in the Crafting of World Markets 13 (2017) (examining the UN Commission on International Trade Law as the “site of struggles for influence and power”). ↑
See, e.g., Anthea Roberts, Is International Law International?

1

(2017) (examining how “different national communities of international lawyers construct their understandings of international law”); Lianne J.M. Boer & Sofia Stolk, Backstage Practices of Transnational Law, in Backstage Practices of Transnational Law 1, 2 (Lianne J.M. Boer & Sofia Stolk eds., 2019) (exploring the “practices, habits and routines that make up the lives of those involved in the field of transnational law”). ↑

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