Standing and Student Loan Cancellation

As the public policy debate over broad student loan cancellation continues, many have questioned whether the Executive Branch has the legal authority to waive the federal government’s claim to up to $1.6 trillion in debt. Some have argued that loan nullification would prompt a years-long battle in the courts. However, commentators and policymakers should not assume that federal courts would have anything at all to say about the legality of federal debt cancellation, as it is likely that no party would have standing to challenge the executive action. This Article considers taxpayers, former borrowers, Congress, state governments, and loan servicers, determining that none of these parties could assert both the Article III standing and the prudential standing required to sustain a suit against the Executive for student loan forgiveness. Even if student loan cancellation never occurs, this “standing dead zone” has broader implications for debt cancellation powers held by department heads across the federal government as well as the wisdom of current federal standing doctrine.

Introduction

There is an ongoing public policy debate over whether the Executive Branch, acting through the Secretary of Education, can and should eliminate most student debt owed to the federal government using powers enumerated in the Higher Education Act of 1965 (“HEA”).1.See Pub. L. No. 89-329, 79 Stat. 1219 (codified as amended in scattered sections of 20 U.S.C.) and subsequent amendments.Show More Publicly owned student debt has tripled in just a little over a decade, increasing from $516 billion in 2007 to $1.6 trillion in 2021.2.U.S. Dep’t of Educ., Spreadsheet, Federal Student Aid Portfolio Summary, https://studentaid.gov/sites/default/files/fsawg/datacenter/library/PortfolioSummary.xls, [http​s://perma.cc/DAX8-57FQ]. The number of individuals carrying student debt increased from 28 million people to 43 million during the same timespan. The average public loan borrower now carries $37,100 in debt, double the amount carried by the average borrower in 2007. Total student debt stands at $1.75 trillion, and there is approximately $138 billion in privately-owned debt. Board of Governors of the Federal Reserve System, Consumer Credit – G.19, https://www.federalreserve.gov/releases/g19/hist/cc_hist_memo_levels.html [https://perma.c​c/RFZ6-D3SQ].Show More Policymakers and commentators have flooded op-ed sections with arguments for and against implementation of the policy. Some advocates posit that eliminating debt will boost the economy3.Hillary Hoffower & Madison Hoff, The Case for Cancelling Student Debt Isn’t Political — It’s Practical. Here Are the Benefits of Erasing $1.6 Trillion, No Strings Attached, Bus. Insider (Feb. 17, 2021, 10:26 AM), https://www.businessinsider.com/economic-benefits-of-student-debt-forgiveness-2020-12 [https://perma.cc/W366-5BDF].Show More or work to narrow the racial wealth gap.4.Naomi Zewde & Darrick Hamilton, Opinion, What Canceling Student Debt Would Do for the Racial Wealth Gap, N.Y. Times (Feb. 1, 2021), https://www.nytimes.com/2021/02/01/opi​nion/student-debt-cancellation-biden.html [https://perma.cc/TRA4-BZ2X].Show More Others point out that prospects for repayment are dim regardless and that up to $500 billion in loans may never be recovered anyway.5.Josh Mitchell, Is the U.S. Student Loan Program Facing a $500 Billion Hole? One Banker Thinks So., Wall St. J. (Apr. 29, 2021), https://www.wsj.com/articles/is-the-u-s-student-loan-program-in-a-deep-hole-one-banker-thinks-so-11619707091 [https://perma.cc/DA7U-57U​E].Show More Detractors argue that debt forgiveness would disproportionately benefit high-earning households6.Adam Looney, Opinion, Biden Shouldn’t Listen to Schumer and Warren on Student Loans, Wash. Post (Nov. 17, 2020), https://www.washingtonpost.com/opinions/biden-shouldnt-listen-to-schumer-and-warren-on-student-loans/2020/11/17/b5839042-2915-11eb-9​b14-ad872157ebc9_story.html [https://perma.cc/9BMT-82BP].Show More and that broader economic benefits are unlikely.7.Editorial Board, Opinion, The Great Student Loan Scam, Wall St. J. (Feb. 9, 2021), https://www.wsj.com/articles/the-great-student-loan-scam-11612915210 [https://perma.cc/8​VJD-W4V9].Show More

Many prominent politicians continue to push for executive action to cancel student loans. Among these voices are Senate Majority Leader Chuck Schumer and Senator Elizabeth Warren.8.Press Release, Sen. Elizabeth Warren et al., Warren, Schumer, Pressley, Colleagues: President Biden Can and Should Use Executive Action to Cancel up to $50,000 in Federal Student Loan Debt Immediately (Feb. 4, 2021) [hereinafter Warren et al., Press Release], https://www.warren.senate.gov/newsroom/press-releases/warren-schumer-pressley-colleagu​es-president-biden-can-and-should-use-executive-action-to-cancel-up-to-50000-in-federal-st​udent-loan-debt-immediately [https://perma.cc/YC2Z-JQP9].Show More More than sixty members of Congress signed a letter supporting up to $50,000 in debt relief per borrower,9.Id.Show More and calls for action have persisted. Schumer, for example, has repeatedly asked President Biden to provide student debt relief through executive action.10 10.See, e.g., Chuck Schumer (@SenSchumer), Twitter (Dec. 6, 2021, 5:41 PM), https://twitte​r.com/SenSchumer/status/1467987566750322694 [https://perma.cc/6285-Q2XT].Show More Others have called for cancellation of all $1.6 trillion in student debt.11 11.See, e.g., Bernie Sanders (@SenSanders), Twitter (Aug. 7, 2020, 12:31 PM), https://twitte​r.com/SenSanders/status/1299021647392002049 [https://perma.cc/Y4RF-7CWB]; Ayanna Pressley (@AyannaPressley), Twitter (Jan. 19, 2021, 1:50 PM), https://twitter.com/AyannaPr​essley/status/1351602827504750595 [https://perma.cc/RW3Q-GDTD].Show More During his campaign, President Biden advocated $10,000 in debt relief per borrower facilitated through congressional action,12 12.Sydney Ember, Biden Was Asked About Canceling Student Loan Debt. Progressives Saw an Opening., N.Y. Times (Nov. 16, 2020), https://www.nytimes.com/2020/11/16/us/biden-was-asked-about-canceling-student-loan-debt-progressives-saw-an-opening.html [https://per​ma.cc/DN3Y-VTQE].Show More later remarking that he is prepared to write off the debt through executive powers.13 13.Lauren Egan, ‘I Will Not Make That Happen’: Biden Declines Democrats’ Call to Cancel $50K in Student Debt, NBC (Feb. 17, 2021), https://www.nbcnews.com/politics/joe-biden/i-will-not-make-happen-biden-declines-democrats-call-cancel-n1258069 [https://perma.cc/Q6​X9-HDY2].Show More A recently released, redacted memo indicates that the administration may be more seriously considering unilateral executive action.14 14.In October, the Biden administration released the redacted version of a memorandum evaluating the president’s authority to unilaterally cancel student loans. Andrew Marantz, What Biden Can’t Do on Student Debt—And What He Won’t Do, New Yorker (Oct. 29, 2021), https://www.newyorker.com/news/news-desk/what-biden-cant-do-on-student-debt-an​d-what-he-wont-do [https://perma.cc/V65Q-MKWK].Show More Given that student loan balances continue to increase and will not decrease significantly without loan forgiveness, this political discussion is unlikely to disappear any time soon.

The debate has led some to question whether debt relief through executive action alone would be legal. A majority of the relief would come through 20 U.S.C § 1082(a), which affords the Secretary of Education the power to “enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption” related to certain types of student loans.15 15.Warren et al., Press Release, supra note 8. Section 1082(a) codifies § 432(a) of the HEA, as originally enacted in 1965.Show More Although advocates introduced the idea of forgiveness using § 1082(a) in 2015,16 16.National Consumer Law Center, Comment Submitted by the National Consumer Law Center to the Consumer Financial Protection Bureau Re: Request for Information Regarding Student Loan Servicing (July 13, 2015), https://www.nclc.org/images/pdf/special_pr​ojects/sl/NCLC_Comments_Student_Loan_Servicing_Jul2015.pdf [https://perma.cc/2Q9K-H9K4].Show More only one piece in the legal literature focuses on the proposal’s merits.17 17.Luke Herrine, The Law and Political Economy of a Student Debt Jubilee, 68 Buff. L. Rev. 281, 342–43 (2020) (arguing that the Department of Education’s inherent enforcement discretion should settle the issue in favor of legality); see also Dalié Jiménez & Jonathan D. Glater, Student Debt Is a Civil Rights Issue: The Case for Debt Relief and Higher Education Reform, 55 Harv. C.R.-C.L. L. Rev. 131, 142 (2020) (discussing the policy benefits of debt relief).Show More Some commentators have argued that § 1082(a) provides the Secretary of Education with the power to cancel the majority of student loans,18 18.Letter from Eileen Connor, Legal Dir., Harvard L. Sch. Legal Servs. Ctr., to Elizabeth Warren, U.S. Sen. from Massachusetts (Jan. 13, 2020), https://static.politico.com/4c/c4/dfadd​bb94fd684ccfa99e34bc080/student-debt-letter-2.pdf.pdf [https://perma.cc/WU39-ATP5].Show More while others contend that this action would exceed the Executive’s powers under the HEA.19 19.Michael Stratford, Pelosi Rebuffs Schumer’s Push to Get Biden to Cancel Student Debt, Politico (July 29, 2021, 10:32 AM), https://www.politico.com/news/2021/07/29/pelosi-schume-student-debt-501521 [https://perma.cc/A6US-5AP6].Show More Numerous commentators have further warned that any loan cancellation would likely be held up in the judiciary amid legal challenges and injunctions.20 20.For example, a Harvard law professor and student argued that there is “a strong possibility that the initiative might be tied up in court for many years.” Howell Jackson & Colin Mark, Opinion, Executive Authority to Forgive Student Loans Is Not So Simple, Regul. Rev. (Apr. 19, 2021), https://www.theregreview.org/2021/04/19/jackson-mark-executive-authority-forgive-student-loans-not-simple/ [https://perma.cc/ZG4V-FJ66]; see also Jordan Weissman, What Biden Should Do About Student Debt, Slate (Nov. 19, 2020, 10:40 AM) (arguing that loan forgiveness through unilateral executive action may not hold up to legal challenges), https://slate.com/business/2020/11/biden-student-debt-forgiveness.html [https://perma.cc/6X​4G-EHQD]; Annie Nova, Student Loan Forgiveness Is Still Up in the Air. What to Do in the Meantime, CNBC (Sep. 24, 2021, 10:58 AM EDT) (explaining that experts believe cancelling student loans via executive action may be held up in the courts), https://www.cn​bc.com/2021/09/24/what-to-do-while-waiting-for-news-on-student-loan-forgiveness-.html [h​ttps://perma.cc/T62C-WKEB].Show More

However, commentators, Congress, and the Executive should be aware of the strong possibility that the judicial branch will have nothing at all to say about the legality of student debt relief using the HEA, given that it is unlikely any party would have standing to challenge the government’s action if the government makes the decision through an adjudication rather than negotiated rulemaking. Current standing doctrine under both Article III and the Administrative Procedure Act (“APA”) places narrow limits on who exactly may stake a claim against particular interpretations of federal law. These requirements create a null set of litigants with standing to challenge cancellation of federally owned debt. In this “standing dead zone,” which authors have recognized in similar contexts,21 21.Mila Sohoni, On Dollars and Deference: Agencies, Spending, and Economic Rights, 66 Duke L.J. 1677, 1706–08 (2017) (discussing standing and Executive-driven funding schemes); Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1110–11 (2021) (noting difficulties obtaining standing to challenge Appropriations Clause violations).Show More constraints on the Executive Branch will either be political or result from the government’s own interpretation of the law. Thus, while litigation and injunctions might occur, litigants may never receive clarification on the scope of § 1082(a).

This issue extends beyond student debt obligations—many department heads and other officials retain the apparent power to broadly compromise and settle debts. Similar compromise and settlement provisions allow the Secretary of the Interior the power to waive financial development loans made to Indians,22 22.25 U.S.C. § 1496(d).Show More the Secretary for Veterans Affairs to waive certain loans made to veterans,23 23.38 U.S.C. §§ 3720(a)(4); 5302(b).Show More the Secretary of Agriculture to release loans made to farmers,24 24.7 U.S.C. § 1981(b)(4).Show More and the Administrator of the Small Business Association to compromise any debt at all held by the agency.25 25.15 U.S.C. § 634(b)(2).Show More These actions may also escape judicial review. Many other provisions raise similar questions because they provide a financial benefit to one party while not directly harming another.26 26.The Treasury Secretary may also unilaterally waive customs claims. 19 U.S.C. § 1617 (2018). Fee waivers might provide another example of this standing dead zone. See, e.g., 15 U.S.C. § 636(a)(33)(E) (waiving guarantee fees for veterans applying for small business loans).Show More

Part I of this article provides a brief background on contemporary standing doctrine, the likely cause of action under the Administrative Procedure Act, and other executive student debt cancellation actions. Part II then considers all classes of potential litigants who might try to challenge student loan cancellation, including taxpayers, former borrowers, Congress, state governments, and loan servicers. It concludes that, under current standing doctrine, none of these entities will meet requirements for standing in federal court. Because most of these parties clearly fail at the stage of Article III standing, the analysis only proceeds to the APA’s requirements when considering loan servicers. As a result, commentators should not assume that the merits of student loan cancellation can be litigated in federal court.

I. Background

A. Standing

To bring a suit in federal court under contemporary Supreme Court guidance, a plaintiff must have standing. Justice Scalia’s opinion in Lujan v. Defenders of Wildlife outlines the Court’s current perspective on standing, viewing the limitation as protecting the separation of powers, defining which disputes may be “appropriately resolved through the judicial process,” and setting out three requirements as the “irreducible constitutional minimum of standing.”27 27.Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).Show More These include (1) injury in fact that is actual, concrete, and particularized; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that exercise of judicial power will redress the injury.28 28.Id. at 560–61.Show More The Court furthermore differentiated between cases in which government regulation targets the plaintiff and cases where the plaintiff complains about “unlawful regulation (or lack of regulation) of someone else,” in which case “much more is needed” for standing to exist.29 29.Id. at 561–62.Show More The Court has regularly reaffirmed this formulation of its standing requirements.30 30.See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).Show More

The requirement that the plaintiff directly suffer injury means that mere objection to government conduct, or injury commonly held by all members of the public, is not enough to create standing.31 31.Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 208, 220 (1974) (determining that plaintiff did not have standing to allege that members of Congress were violating the Incompatibility Clause by holding commissions in the military while serving in office).Show More In Ex parte Lévitt, for example, a lawyer challenged the constitutionality of Justice Hugo Black’s 1937 appointment to the Supreme Court.32 32.Ex parte Lévitt, 302 U.S. 633, 633 (1937) (per curiam).Show More The Court determined that the lawyer lacked standing to bring the claim, explaining that “he must show that he has sustained . . . a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.”33 33.Id. at 634.Show More The Court has continued to view standing in this way.34 34.Lujan, 504 U.S. at 575–76; Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018).Show More

As Justice Blackmun noted in dissent, Lujan shifted power from Congress to the Executive Branch.35 35.Lujan, 504 U.S. at 602 (Blackmun, J., dissenting).Show More Where Congress passes a statute constraining the range of options available to the Executive, courts do not err by intervening to enforce those constraints at Congress’s request, Blackmun asserted.36 36.Id. at 604.Show More Yet the Court has stated that it is acceptable even if no party has standing to challenge the legality of a particular government action.37 37.See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974) (“The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013).Show More According to the Court, separation of powers requires that grievances beyond the reach of the courts be reserved for the political branches.38 38.Id. at 408; see also Lujan, 504 U.S. at 576–77.Show More

The Court’s restrictive standing doctrine was not inevitable. The very notion of “standing” arose in the 1930s, with Lujan’s tripartite requirements coming into focus during the 1970s.39 39.Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 168, 179 (1992).Show More The strength of this limitation on access to the courts has no basis in the Framers’ original intent and appears to be the Supreme Court’s own creation.40 40.Id. at 173. Alternative standards for granting standing include whenever Congress creates a cause of action or when the plaintiff is the party most interested in the outcome of the case. Richard M. Re, Relative Standing, 102 Geo. L.J. 1191, 1197 (2014).Show More From a realist perspective, it is quite possible that the Supreme Court could choose any case—including the issue presented here—to reformulate its standing jurisprudence. Yet, as discussed below in Part III, each of the potential plaintiffs who could challenge student loan forgiveness lies far outside the bounds of current standing doctrine.

B. The APA Cause of Action

The Administrative Procedure Act provides the most likely cause of action a potential challenger would invoke to oppose student debt cancellation.41 41.Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).Show More Other statutes that might be relevant, such as the Antideficiency Act or the Federal Credit Reform Act, impose additional restrictions on the Executive but do not provide relevant causes of action.42 42.Antideficiency Act, Pub. L. No. 97-258, 96 Stat. 877 (1982); Federal Credit Reform Act, Pub. L. No. 93-344, 104 Stat. 1388-610 (1990) (codified as amended at 2 U.S.C. §§ 661–661f).Show More The Department of Education’s student loan cancellation would constitute agency action under the APA, meaning that any party who has constitutional standing, is adversely affected by the agency action within the meaning of the relevant statute, and meets the APA’s additional requirements43 43.To be subject to review, agency action must be final and there must be no alternative remedy. 5 U.S.C. § 704. Judicial review may also be precluded or committed to agency discretion by law. 5 U.S.C. § 701(a).Show More may bring a suit to challenge the government’s activity.

The APA provides a complicated blueprint for the operation of most government authorities within the Executive Branch. The statute resulted from painstaking negotiations during Franklin Delano Roosevelt’s presidency over the scope of the federal government,44 44.See generally Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 Va. L. Rev. 219, 219–26 (1986) (describing negotiations lasting from 1933 until 1946).Show More and it represents a New Deal compromise under which Congress may give the Executive Branch greater autonomy to make choices but imposes judicial oversight on the resulting decisions.45 45.Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1248 (1982).Show More The APA therefore defines how the Executive Branch must make rules,46 46.5 U.S.C. § 553.Show More adjudicate decisions,47 47.5 U.S.C. §§ 554–55.Show More and hold hearings.48 48.5 U.S.C. §§ 556–57.Show More To facilitate judicial review of these executive functions, the APA provides that any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”49 49.5 U.S.C. § 702.Show More Aggrieved litigants may use this cause of action to argue in federal court that an Executive Branch agency has neglected to take action that it must take, or that an agency exceeded statutory powers, violated the Constitution, or erred in one of several other ways.50 50.5 U.S.C. § 706.Show More For example, New York used the APA to successfully challenge the Trump administration’s addition of a question regarding citizenship on the 2020 decennial census, pointing to defects in the government’s reasoning.51 51.Dep’t of Com. v. New York, 139 S. Ct. 2551, 2562, 2576 (2019).Show More

In this case, a litigant would use the APA to sue the Department of Education, arguing that student loan cancellation exceeded the Secretary of Education’s powers under the HEA. To do so, a plaintiff would need to show the Article III standing described in Part II.a., including injury, causation, and redressability. However, the plaintiff would also need to satisfy the specific cause of action set out in the APA, namely that the injury falls “within the meaning of a relevant statute.”52 52.5 U.S.C. § 702 (2018).Show More This requirement—called the “zone of interests test” and sometimes described as a subset of “prudential standing”—is further explored in Part III.e.

C. Statutory Bases for Loan Modification

Advocates of student loan forgiveness hope that the Executive will use 20 U.S.C. § 1082(a) to cancel federal student loans without further involvement from Congress. The Trump and Biden administrations have used statutory mechanisms to broadly modify student loan obligations on at least three occasions since early 2020. None of these actions, however, relied on § 1082(a).

The modification affecting the largest number of Americans came through deferment of student loans during the pandemic, meaning that borrowers were not required to make loan payments and interest did not accrue. The CARES Act provided authority for deferment from March 27, 2020 until September 30, 2020,53 53.CARES Act, Pub. L. No. 116-136, § 3513, 134 Stat. 281, 404 (2020).Show More and the Trump54 54.Press Release, Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic (Aug. 8, 2020), https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ [https://pe​rma.cc/VTU6-2339].Show More and then Biden55 55.Memorandum from President Donald J. Trump to the Secretary of Education, Pausing Federal Student Loan Payments (Jan. 20, 2021), https://trumpwhitehouse.archives.gov/presid​ential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ [htt​ps://perma.cc/L24P-XP8Z].Show More administrations relied on a provision of the HEA allowing relief when a borrower experiences “economic hardship” to continue the deferment.56 56.20 U.S.C. § 1087e(f)(2)(D).Show More In August 2021, the Biden administration used a separate statutory provision under the HEA to discharge the loans of 323,000 people who had been permanently disabled.57 57.20 U.S.C. § 1087; Total and Permanent Disability Discharge of Loans Under Title IV of the Higher Education Act, 86 Fed. Reg. 46972, 46972 (Aug. 23, 2021). Press Release, U.S. Dep’t of Educ., Over 323,000 Federal Student Loan Borrowers to Receive $5.8 Billion in Automatic Total and Permanent Disability Discharges (Aug. 19, 2021), https://www.ed.gov/n​ews/press-releases/over-323000-federal-student-loan-borrowers-receive-58-billion-automati​c-total-and-permanent-disability-discharges [https://perma.cc/H2V2-VPL5].Show More Then in early October, the administration reformulated the Public Service Loan Forgiveness program, basing its action on a provision of the 2003 Heroes Act allowing the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs . . . as the Secretary deems necessary in connection with a war or other military operation or national emergency.”58 58.HEROES Act of 2003, Pub. L. No. 108-76, § 2, 117 Stat. 904 (2003) (codified at 10 U.S.C. §§ 1098aa–1098ee); Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces Transformational Changes to the Public Service Loan Forgiveness Program, Will Put Over 550,000 Public Service Workers Closer to Loan Forgiveness (Oct. 6, 2021), https://www.ed.gov/news/press-releases/us-department-education-announces-transformation​al-changes-public-service-loan-forgiveness-program-will-put-over-550000-public-service-w​orkers-closer-loan-forgiveness [https://perma.cc/Y77B-QGPZ]. The Department of Education did not publish its action in the Federal Register but confirmed the basis of the action to the author.Show More As of February 2022, the Biden administration had provided $16 billion in loan cancellation to 680,000 borrowers.59 59.Press Release, U.S. Dep’t of Educ., Education Department Approves $415 Million in Borrower Defense Claims Including for Former DeVry University Students (Feb. 16, 2022), https://www.ed.gov/news/press-releases/education-department-approves-415-million-borrow​er-defense-claims-including-former-devry-university-students [https://perma.cc/G5TW-8FG​Q].Show More

Broad relief under § 1082(a) remains untested as of early 2022. Supporters of student loan cancellation argue that the statute provides the Secretary of Education unreviewable discretion to cancel loans up to $1,000,000 per borrower, and that loans exceeding that amount only require review by the Attorney General.60 60.Letter from Eileen Connor to Elizabeth Warren, supra note 18, at 3.Show More Supporters also argue that although § 1082(a) is in the part of the HEA associated with the Federal Family Education Loan Program (“FFELP”), the provision applies to Direct Loans as well, likely because that part of the HEA in fact regulates many other programs. In addition, they point to § 1087hh(1) as covering Perkins loans, which are owned by third parties. Some argue instead that the government would need to acquire FFELP and Perkins loans to gain the ability to cancel them.61 61.Herrine, supra note 17, at 395–97.Show More However, inquiring into the specific statutory mechanisms for federal debt cancellation is beyond the scope of this Article, which questions only whether a plaintiff would be able to challenge the government’s interpretation of the statutory scheme.

II. The Potential Litigants

This Article contemplates five classes of potential litigants, including taxpayers, former borrowers, members of Congress, state governments, and loan servicers. The analysis proceeds from the broadest class to the class with the fewest members. A different body of Supreme Court cases applies to each of these groups, and each line of jurisprudence leaves little room for these entities to claim both Article III and prudential standing.

A. Taxpayers

If the Executive cancels all or part of federally owned student loans, some members of the public may seek to challenge the action, arguing that their tax dollars funded unlawful activity. While those plaintiffs would put forward colorable policy objections to loan cancellation, a federal court is unlikely to hear their legal claims. The Supreme Court has severely restricted standing based on taxpayer status, with only one sui generis exception.

The Supreme Court initially rejected taxpayer standing in Frothingham v. Mellon, in which a citizen-taxpayer brought suit alleging that Congress exceeded its powers in enacting the Maternity Act of 1921.62 62.262 U.S. 447, 478–80 (1923).Show More The Court determined that it lacked jurisdiction to consider the merits of the case because administration of a federal statute would spread a tax burden among a “vast number of taxpayers,” whose financial interests would be difficult to discern and in constant flux.63 63.Id. at 487.Show More Yet in the 1960s, the Court created a single, narrow exception in Flast v. Cohen.64 64.392 U.S. 83, 104–06 (1968).Show More Citizens have standing to challenge the federal government as taxpayers only when alleging the unconstitutionality of congressional appropriations under Article I, Section 8 of the Constitution, which covers the congressional taxing and spending power. Furthermore, this argument is possibly limited to when such congressional appropriations are used to violate the Establishment Clause of the First Amendment.65 65.Flast v. Cohen, 392 U.S. 83, 102–04 (1968).Show More However, this pathway to taxpayer standing is unique, and the Court has rejected taxpayer standing in every other context to come before it.66 66.Joshua G. Urquhart, Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations and Permissive Taxpayer Standing Doctrines, 81 Fordham L. Rev. 1263, 1271 (2012).Show More The Court reaffirmed its approach in a recent case, Hein v. Freedom From Religion Foundation, Inc., in which a taxpayer challenged the George W. Bush administration’s creation of the Faith-Based and Community Initiatives program, arguing that it violated the Establishment Clause.67 67.Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 592 (2007).Show More The Court reasserted that status as a taxpayer is not enough to create standing and that Flast did not apply because the Executive’s spending came from general appropriations for the Executive Office of the President, not unconstitutional legislation.68 68.Id. at 593, 605.Show More Taxpayer standing is therefore available to challenge some congressional actions but not to oppose Executive Branch activity.

This line of taxpayer standing jurisprudence would foreclose a taxpayer lawsuit seeking to enjoin executive cancellation of federally owned debt. Congress provides appropriations for student loans as an entitlement program, meaning that the legislature does not set a specific amount to loan from the Treasury.69 69.Letter from Eileen Connor to Elizabeth Warren, supra note 18, at 2. See also 2 U.S.C. § 661c (referencing student loans as exempt from general appropriations requirements).Show More While Congress nonetheless appropriates funding for the Executive to disburse loans, and the Executive would essentially be waiving the government’s claim that borrowers must return the funds to the Treasury, this action would approximate the facts of Hein, where taxpayers alleged that the Executive disbursed funds illegally. Furthermore, even if the Court were to diverge from its previous jurisprudence on taxpayer standing, it would likely limit standing to constitutional violations similar to Flast.70 70.See Hein, 551 U.S. at 633, (Scalia, J., concurring) (2007).Show More Instead of entertaining a taxpayer lawsuit challenging loan cancellation, the Court would determine that the issue is more appropriate for the political branches.

B. Former Borrowers

Student loan forgiveness would certainly leave borrowers who fully paid off their loans feeling aggrieved, and some may oppose executive action asserting that it is unfair to cancel others’ loans while providing no benefit to those who previously paid off their balances. Again, while these individuals may have political arguments against student loan forgiveness, a court is unlikely to hear the merits of their complaints. As noted above, former borrowers would need to show some form of concrete injury, and their complaints would reduce to the fact that the government required them to pay back a loan they were legally required to repay, compared to others it later decided did not have to repay.71 71.Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).Show More Former borrowers can point to no injury, only a benefit that others subsequently experienced. And as Lujan made clear, it is difficult to claim standing based on “unlawful regulation (or lack of regulation) of someone else.”72 72.Id. at 562.Show More In addition, even if loan cancellation could be conceived of as an injury to former borrowers, an injunction from the judiciary would do nothing to remedy that injury. Former borrowers still had to pay off their own loans whether or not loan forgiveness takes place under § 1082(a).

More broadly, allowing former borrowers standing to challenge cancellation of outstanding federal loans would create precedent providing standing whenever the government confers a benefit that did not apply at a previous point in time. Former borrowers would need to argue that the injury can be cured through some amount of compensation for loans paid off prior to the Executive’s cancellation. But if a court considered this to be injury capable of supporting standing, then plaintiffs would have standing to challenge any policy that creates a new benefit—such as relief for first-time homebuyers, expansion of veterans’ healthcare coverage, or reduced grazing fees. As noted above, however, conferral of a benefit or imposition of a restriction on others does not support standing, particularly outside the context of the Establishment Clause,73 73.See Note, Nontaxpayer Standing, Religious Favoritism, and the Distribution of Government Benefits: The Outer Bounds of the Endorsement Test, 123 Harv. L. Rev. 1999 (2010) (discussing distribution of government benefits in ways that favor certain religions).Show More meaning that former borrowers would be unable to sustain a suit against loan forgiveness.

C. Congress

Some members or an entire house of Congress may also attempt to bring suit against the Executive to stop the federal government from abrogating federally owned loans, arguing that the Secretary of Education exceeded the powers it is granted in the HEA or engaged in unauthorized spending. However, the rationales under which a legislature may claim particularized injury are limited, including instances where votes are essentially nullified,74 74.Coleman v. Miller, 307 U.S. 433, 438 (1939).Show More where a legislature intervenes to defend the constitutionality of legislation,75 75.Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 93940 (1983).Show More and where the legislature sues as an institution to defend its powers.76 76.Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2659 (2015).Show More Most of these contexts implicate the operation of the legislature itself or the vindication of its own explicit powers. None of these cases has afforded a legislature standing to contest the Executive Branch’s interpretation of a federal statute, and a federal court would likely determine that Congress’s interest in a particular interpretation of a federal statute is no greater than that of the general population.

This hesitancy relies in large part on the separation of powers, a thread that has only become more pronounced in the Court’s standing jurisprudence.77 77.See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 576–77 (1992); Raines v. Byrd, 521 U.S. 811, 819–20 (1997).Show More Lower courts within the U.S. Court of Appeals for the D.C. Circuit have also raised separation of powers issues when rejecting congressional challenges to executive branch action pursuant to statutory authority, describing the grievances as generalized and incapable of supporting standing.78 78.See, e.g., Chenoweth v. Clinton, 181 F.3d 112, 117 (D.C. Cir. 1999) (rejecting a challenge to creation of a program through executive order under a duly enacted federal statute); U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015) (determining that the House could sue based on constitutional claims, such as violations of the Appropriations Clause, but not for claims about the implementation of a statute).Show More This indicates that precedent in the jurisdiction where Congress would file suit already weighs heavily against success.

In addition, Congress could not assert that the Executive intruded on legislative power by spending federal funds without congressional appropriations.79 79.Burwell, 130 F. Supp. 3d at 58.Show More For example, in a recent case, the U.S. House of Representatives sued the Trump administration alleging that diverting spending to fund the border wall violated the Appropriations Clause.80 80.U.S. House of Representatives v. Mnuchin, 976 F.3d 1, 4 (D.C. Cir. 2020) (vacated as moot).Show More The D.C. Circuit determined that the House had no standing to assert injury based on a statutory violation,81 81.Id. at 15.Show More although it could claim injury to its institutional powers as one of the two “keys” to the treasury.82 82.Id. at 13.Show More This pathway to standing is inapposite here, however, as Congress duly appropriated funds for student loans,83 83.See text accompanying note 69.Show More and the Executive is responsible for the funding’s disbursement. This means that any claim of standing due to institutional injury from compromising Congress’s control of the federal purse would fail.

In total, this means that Congress would lack standing to bring a lawsuit against the Executive Branch claiming that the government exceeded the powers Congress defined in § 1082(a). The claim does not relate to the legislature’s own powers or operations. Rather, Congress would be claiming an injury common to members of the public.

D. State Governments

Some state governments may also be interested in suing the federal government to halt broad federal loan cancellation, arguing that the Executive exceeded its powers and in doing so increased the federal debt.84 84.When Texas Governor Greg Abbott was the state’s Attorney General, he reportedly described his job: “I go into the office, I sue Barack Obama, and then I go home.” Rachel Weiner, Five things to know about Greg Abbott, Wash. Post (July 15, 2013), https://www.washingtonpost.com/news/the-fix/wp/2013/07/15/five-things-to-know-about-gr​eg-abbott/ [https://perma.cc/JQ4U-5F9R].Show More State lawsuits against the federal government have become increasingly politicized and high-profile.85 85.See, e.g., Texas v. United States, 809 F.3d 134, 146, 188 (5th Cir. 2015) (challenging the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program); Katherine Mims Crocker, An Organizational Account of State Standing, 94 Notre Dame L. Rev. 2057, 2058 (2019) [hereinafter Crocker, Organizational Account] (discussing the ensuing consternation within legal academia).Show More Yet state governments must also meet the constitutional requirements for standing. Pathways to state standing can be divided into three main categories, including proprietary interests, sovereign interests, and quasi-sovereign interests.86 86.Crocker, Organizational Account, supra note 85, at 2061–67. See also Katherine Mims Crocker, Note, Securing Sovereign State Standing, 97 Va. L. Rev. 2051, 2056–68 (2011) (describing the evolution of jurisprudence regarding states’ sovereign interests); Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387, 410–11 (1995) (describing states as plaintiffs).Show More Federal loan forgiveness does not come close to offending any of these state interests, meaning that a state would lack standing to challenge cancellation.

States are unlikely to successfully argue that debt abrogation harms their common law proprietary interests, such as property or contract claims. Courts primarily review these cases under traditional Article III standing analysis, and until relatively recently these lawsuits represented the only claims state governments could bring against federal officials.87 87.Woolhandler & Collins, supra note 86, at 392–93.Show More In Hawaii’s recent case challenging the Trump administration over its ‘Muslim ban,’ for instance, the Ninth Circuit determined that the state had standing to sue because its university would lose tuition income, students, and faculty.88 88.Hawaii v. Trump, 859 F.3d 741, 764–65 (9th Cir. 2017). See also Texas v. United States, 809 F.3d 134, 152–53 (5th Cir. 2015) (finding standing to sue the Obama administration for DAPA); Massachusetts v. HHS, 923 F.3d 209, 222–23 (1st Cir. 2019) (finding standing because the Trump administration’s attempt to limit access to contraceptives under the Affordable Care Act would increase use of state funded contraceptive services).Show More Yet there are no similar rationales for proprietary injury as a result of loan forgiveness. In fact, citizens who send less money to the federal treasury are more likely to spend that money locally on housing, education, and services that benefit state economies and tax revenues. This means that state treasuries would benefit from loan forgiveness rather than incur additional costs, frustrating claims of proprietary injury.

States will similarly be unable to assert that debt cancellation offends sovereign interests or quasi-sovereign interests. Sovereign interests typically implicate a state’s effort to protect its capacity to exercise executive, legislative, and judicial power.89 89.Woolhandler & Collins, supra note 86, at 410–11.Show More States have no plausible argument that federal debt cancellation would interfere with their own sovereign powers, given that neither the HEA nor loan distributions implicate state governments. When vindicating quasi-sovereign interests, in contrast, states cite the need to protect their citizens or citizens’ benefits from the federal system.90 90.Crocker, Organizational Account, supra note 85, at 2064–65; Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 608 (1982).Show More The primary issue with the rationale for quasi-sovereign standing is that it flows from injuries—actual or imminent—to citizens themselves.91 91.Missouri v. Illinois, 180 U.S. 208, 241 (1901) (holding that standing may be asserted when the “health and comfort” of a state’s citizens are in jeopardy).Show More Yet federal debt cancellation does not injure a state’s citizens, as established above. This means that there is no quasi-sovereign interest for a state to assert.

Barring a drastic expansion in the bases for state standing, state governments will be unable to sustain a lawsuit against broad federal loan forgiveness because states cannot point to an injury. Student loan cancellation would not harm a state’s proprietary interests because federal debt forgiveness does not impose financial burdens on states. Cancellation also does not challenge a state’s sovereignty and does not injure citizens such that a state may bring an action to protect its residents.

E. Loan Servicers

Student loan servicers represent the final class of litigants who might challenge broad federal loan forgiveness, although they may lack both Article III standing and prudential standing under the APA.92 92.It is worth noting that if the decision to abrogate student loan debt is committed to agency discretion by law, then the APA does not in fact apply, meaning that the cause of action remains unavailable to all, including loan servicers. 5 U.S.C. § 701; Herrine, supra note 17, at 368–95.Show More Servicers comprise nine federal contractors who receive a monthly fee from the Department of Education for each borrower the company services.93 93.U.S. Dep’t of Educ., Who’s My Student Loan Servicer?, https://studentaid.gov/manage-loans/repayment/servicers [https://perma.cc/8D6Z-XFPQ].Show More The organizations—some for-profit and others non-profit—currently receive a base fee of $1.05 per month while a student is in school and $2.85 per month while a loan is in repayment.94 94.U.S. Dep’t of Educ. & Great Lakes Educ. Loan Servs., Amendment of Solicitation/Modification of Contract, at 4 (effective Sept. 1, 2014), https://studentaid.gov/site​s/default/files/ED-FSA-09-D-0012_MOD_0080_GreatLakes.pdf [https://perma.cc/ZR96-ZZ​9N].Show More Eliminating millions of student loans would dramatically decrease the amount of money loan servicers receive under these contracts.

However, to acquire Article III standing, loan servicers would need to show that this decrease in payments under the federal contracts represents a concrete injury to a legally protected interest. The sufficiency of this injury would depend on a federal court’s approach to the nature of the harm. There is little clear guidance on what constitutes a “legally protected interest,” and the Supreme Court has not clarified the term’s boundaries.95 95.Cottrell v. Alcon Lab’ys, 874 F.3d 154, 163 (3d Cir. 2017).Show More On the one hand, loan servicers’ contracts are variable in nature, meaning that there may be no legally protected interest in retaining any specific number of loans under the contract. In addition, even if the servicers could assert a contract injury, the remedy would likely amount to monetary damages rather than an injunction under most states’ theories of contract law. On the other hand, the Court appears to have taken a broad view of what sorts of concrete injuries qualify for standing, and loan servicers would be able to attach a dollar amount to claims of decreased income as a result of loan cancellation. It is quite possible—though still uncertain—that this financial injury would be sufficient to provide loan servicers Article III standing.

Even if the servicers had Article III standing, however, they would lack prudential standing. As noted in Part II.B., the APA introduces additional constraints beyond those imposed by generalized Article III standing requirements. To sustain a lawsuit under the APA, a litigant’s interest must be “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”96 96.Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970). See also Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703, 708 (2019) (describing the zone of interests test).Show More This inquiry into the “zone of interests” is separate from the Article III “case or controversy” test,97 97.Data Processing, 397 U.S. at 153.Show More and those who fall outside of the zone of interests are said to lack prudential standing.98 98.The Supreme Court has noted that “prudential standing” really reflects statutory interpretation and “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is therefore markedly different from constitutional Article III standing and rests on the scope of the statute, not constitutional restrictions.Show More Courts typically consider the zone of interests test to be a wide aperture, likely given that most litigants file suit based on statutes that clearly pertain to them.99 99.Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987) (noting that “[t]he test is not meant to be especially demanding”).Show More Nonetheless, the test does have teeth. For example, the Court determined that the American Postal Workers Union was not within the zone of interests Congress contemplated when passing certain statutes creating a Postal Service monopoly on carriage of letters.100 100.Air Courier Conf. of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 530 (1991).Show More The Union therefore could not challenge the Postal Service’s suspension of the monopoly for certain pieces of mail because it stood outside the statute’s zone of interests.101 101.Id. at 519–20.Show More The monopoly statute exists, the Court stated, to ensure the Postal Service’s stability, not to ensure employment for postal workers.102 102.Id. at 528.Show More In another case, the Court concluded that a federal agency was not a “person adversely affected or aggrieved” within the meaning of a statute delineating the process for a worker’s compensation claim, indicating that the agency head lacked prudential standing to seek review of an independent board decision denying a claimant’s compensation.103 103.Dir., Off. of Workers’ Comp. Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 130 (1995).Show More In contrast, other cases have determined that companies do often lie within the zone of interests protected by statutes limiting the activity of their competitors.104 104.See, e.g., Nat’l Credit Union Admin. v. 1st Nat. Bank & Tr. Co., 522 U.S. 479, 488 (1998); Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970).Show More In one such case, the Supreme Court looked to the Lanham Act’s statement of purpose to determine that a chip manufacturer was within the zone of interests the statute protects because “lost sales and damage to [the plaintiff’s] business reputation . . . are injuries to precisely the sorts of commercial interests the Act protects.”105 105.Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 137 (2014)Show More

This means that any plaintiff challenging cancellation of federal loans needs to not only show concrete injury for constitutional standing as articulated in Lujan, but also that they arguably lie within the range of interests the HEA protects.106 106.Professor Nelson argues that the Court’s Data Processing decision should be read such that action lying arguably within the “zone of interests” is a necessary but not sufficient condition for judicial review. Nelson, supra note 96, at 710–11. Yet even under the more expansive view of prudential standing, where being within the arguable zone of interests ensures judicial review, plaintiffs’ claims will fail.Show More In the context of federal debt cancellation, these requirements would be difficult to meet if the Executive acts through an adjudication rather than formal rulemaking.

First, given that the debt settlement provisions were present in the original version of the HEA, the Act’s statement of purpose can guide the inquiry. The legislation describes the act as a measure “[t]o strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education.”107 107.Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219, 1219 (codified as amended in scattered sections of 20 U.S.C.).Show More The Act’s purpose does not include the Department of Education’s relationship with its contractors, which is instead primarily regulated by the complicated set of provisions in Title 41 of the U.S. Code.108 108.See 20 U.S.C. § 1018a (providing for Department of Education contracting in compliance with federal procurement laws).Show More

Second, the Supreme Court has clarified that the zone of interests test revolves primarily around the specific statutory provision rather than a broader statutory scheme.109 109.Jonathan R. Siegel, Zone of Interests, 92 Geo. L.J. 317, 335–37 (2004).Show More Section 1082(a)(6) itself regulates the relationship between the Department of Education and specific claimants and debtors, not all parties with business before the agency. Debt compromise generally takes place to serve the best interests of the debtor and the creditor, where third party interests provide the parties little incentive to settle.110 110.See IRS, An Offer in Compromise May Help Some Taxpayers Settle Their Tax Bill (May 3, 2021), https://www.irs.gov/newsroom/an-offer-in-compromise-may-help-some-taxpayers-settle-their-tax-bill [https://perma.cc/Z4UC-SVFU] (“The goal is a compromise that suits the best interest of both the taxpayer and the agency.”).Show More As demonstrated by the postal workers’ case, it is not enough that a policy change has some de facto effect on a third party’s economic interests.111 111.Air Courier Conf. of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 530 (1991).Show More

Third, Congress requires that the Department of Education consult a wide range of interests—including those of student loan servicers—when engaging in the process of “negotiated rulemaking.”112 112.20 U.S.C. § 1098a.Show More However, no similar requirement applies to loan cancellation, which would likely comprise an adjudication and not a rulemaking. This shows that if Congress intended the Department of Education to consider servicers’ interests when deciding whether to release claims against borrowers, it knew how to do so. Finally, it is quite possible that loan servicers’ interests are antithetical to the purposes of the statute,113 113.See Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038, 1051 (D.C. Cir. 1989) (determining that in-house employees’ interests were antithetical to those of the contractors, whose interests the statute in question sought to further).Show More given that any compromise or settlement of student debt would necessarily result in reduced revenue under Department of Education contracts. The statute does not contain any requirement to consider effects on the debtor, let alone third parties relying on the debtor’s existence. Even without the weight of precedent against them, servicers would battle uphill to argue that § 1082(a)(6) protects their interests in any meaningful way.

Similar difficulties have led courts to hold that contractors and third parties who, like loan servicers, have a financial interest in the mechanism of a statutory regime’s execution fall outside of its zone of interests. For instance, in Lujan, the Supreme Court noted that an agency’s failure to hold “on the record” hearings as required by a provision of the APA

would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be ‘adversely affected within the meaning’ of the statute.114 114.Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990).Show More

In another example, a Bureau of Prisons (“BOP”) contractor challenged a regulatory change that decreased the number of prisoners housed in its facilities under a federal contract and caused the contractor to lose revenue.115 115.Dismas Charities, Inc. v. DOJ, 287 F. Supp. 2d 741, 742–43 (W.D. Ky. 2003).Show More The court determined that Congress passed the relevant statute to protect the managerial interests of the BOP and the health interests of federal prisoners, concluding that the statute concerned “administration of the prison system,” not indirect effects on federal contractors.116 116.Id. at 746.Show More The contractor therefore lacked prudential standing to challenge the BOP decision.117 117.Id. at 748.Show More

Courts have reached comparable decisions when third parties employed by the agency experience financial loss as a result of agency action pursuant to statutory authority unrelated to the plaintiffs. For instance, civilian employees at a military base could not challenge the government’s decision to outsource their jobs to a private contractor because they did not fall within the zone of interests of any relevant federal statute regulating procurement.118 118.Courtney v. Smith, 297 F.3d 455, 458 (6th Cir. 2002).Show More The court reasoned that none of the statutes were designed to protect federal employees’ jobs.119 119.Id. at 466. See also Am. Fed’n of Gov’t Emps., Loc. 2119 v. Cohen, 171 F.3d 460, 471 (7th Cir. 1999) (“[T]he interests of federal employment, and the goal of private procurement are inconsistent.”); Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038, 1051 (D.C. Cir. 1989) (reasoning that the interests of federal employees are antithetical to those of federal contractors, and therefore inconsistent with the interests of a federal statute allowing for contracting).Show More Other courts have reached similar conclusions regarding third parties with a financial stake in a regulation.120 120.See, e.g., Immigr. & Naturalization Serv. v. Legalization Assistance Project of the Los Angeles Cnty. Fed’n of Lab., 510 U.S. 1301, 1305 (1993) (deciding that legal services organizations were not within the zone of interests an immigration statute sought to protect).Show More So, while a contractor might have standing to challenge issues arising from the government’s contracting process,121 121.See, e.g., Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 669 (1993) (finding standing to challenge ordinance according preferential treatment to minority-owned businesses).Show More a contractor would not have the prudential standing necessary to contest the interpretation of a law regulating a third party that would incidentally affect the company’s government business.

This conclusion makes sense from a policy perspective as well. In fiscal year 2020, the U.S. government spent more than $655 billion on contracts spread across all government agencies.122 122.U.S. Gov’t Accountability Off., A Snapshot of Government-Wide Contracting for FY 2020 (infographic) (June 22, 2021), https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2020-infographic [https://perma.cc/KA6Y-HUJS].Show More If contractors were able to challenge the legality of government policy every time an agency made a decision that affected contractors’ finances, then the effectiveness of the modern federal government would suffer immensely as federal contractors filed lawsuits to protect their fiefdoms from regulatory change. This would result in ossification of federal government structures and negate the main benefit that federal contracting provides—flexibility. Congress may have had just these sorts of lawsuits in mind when limiting the APA cause of action to those aggrieved “within the meaning of the relevant statute.”

Student loan servicers represent the most likely plaintiffs in part because broad student loan cancellation would strike at their pocketbooks—fewer borrowers means reduced income from contracts with the federal government. This concern may or may not afford the loan servicers constitutional standing under Article III. However, the servicers would fail to establish the prudential standing necessary to bring an action under the APA if the claim arises from § 1082(a). If a loan services contractor brought a claim based on violation of a statute governing federal contracts, the issue would be different. Yet loan servicers would be unable to challenge broad forgiveness of student loans under the HEA.

Conclusion

Regardless of political positions on the wisdom of general student loan forgiveness, the fact that the Executive could well modify $1.6 trillion in obligations to the United States government without judicial review presents policy concerns. Should federal standing doctrine block taxpayers and their elected representatives—both state and federal—from questioning the government’s dramatic increase of the national debt? If so, perhaps Congress should revisit federal statutes that allow for action without effective judicial review. Yet it is hard to escape the impression that in cases like these, courts seek to evade a duty to oversee the scope of executive power.

Debate over the legality and sagacity of student loan forgiveness is unlikely to abate unless the Executive Branch decides to cancel debt or Congress legislates to solve the issue. Student debt will also continue to rise and the relevant statutory provisions will likely remain intact, only increasing pressure on the Executive to act. While many debate the legality of the action, all should remain cognizant that there may well exist no party with standing and a cause of action to oppose debt cancellation in federal court, meaning that the judiciary will have nothing to say about the issue. This means that any push or pull will come from either political pressure or the Executive’s own interpretation of its powers, not a judicial declaration of law.

  1. See Pub. L. No. 89-329, 79 Stat. 1219 (codified as amended in scattered sections of 20 U.S.C.) and subsequent amendments.
  2. U.S. Dep’t of Educ., Spreadsheet, Federal Student Aid Portfolio Summary, https://studentaid.gov/sites/default/files/fsawg/datacenter/library/PortfolioSummary.xls, [http​s://perma.cc/DAX8-57FQ]. The number of individuals carrying student debt increased from 28 million people to 43 million during the same timespan. The average public loan borrower now carries $37,100 in debt, double the amount carried by the average borrower in 2007. Total student debt stands at $1.75 trillion, and there is approximately $138 billion in privately-owned debt. Board of Governors of the Federal Reserve System, Consumer Credit – G.19, https://www.federalreserve.gov/releases/g19/hist/cc_hist_memo_levels.html [https://perma.c​c/RFZ6-D3SQ].
  3. Hillary Hoffower & Madison Hoff, The Case for Cancelling Student Debt Isn’t Political — It’s Practical. Here Are the Benefits of Erasing $1.6 Trillion, No Strings Attached, Bus. Insider (Feb. 17, 2021, 10:26 AM), https://www.businessinsider.com/economic-benefits-of-student-debt-forgiveness-2020-12 [https://perma.cc/W366-5BDF].
  4. Naomi Zewde & Darrick Hamilton, Opinion, What Canceling Student Debt Would Do for the Racial Wealth Gap, N.Y. Times (Feb. 1, 2021), https://www.nytimes.com/2021/02/01/opi​nion/student-debt-cancellation-biden.html [https://perma.cc/TRA4-BZ2X].
  5. Josh Mitchell, Is the U.S. Student Loan Program Facing a $500 Billion Hole? One Banker Thinks So., Wall St. J. (Apr. 29, 2021), https://www.wsj.com/articles/is-the-u-s-student-loan-program-in-a-deep-hole-one-banker-thinks-so-11619707091 [https://perma.cc/DA7U-57U​E].
  6. Adam Looney, Opinion, Biden Shouldn’t Listen to Schumer and Warren on Student Loans, Wash. Post (Nov. 17, 2020), https://www.washingtonpost.com/opinions/biden-shouldnt-listen-to-schumer-and-warren-on-student-loans/2020/11/17/b5839042-2915-11eb-9​b14-ad872157ebc9_story.html [https://perma.cc/9BMT-82BP].
  7. Editorial Board, Opinion, The Great Student Loan Scam, Wall St. J. (Feb. 9, 2021), https://www.wsj.com/articles/the-great-student-loan-scam-11612915210 [https://perma.cc/8​VJD-W4V9].
  8. Press Release, Sen. Elizabeth Warren et al., Warren, Schumer, Pressley, Colleagues: President Biden Can and Should Use Executive Action to Cancel up to $50,000 in Federal Student Loan Debt Immediately (Feb. 4, 2021) [hereinafter Warren et al., Press Release], https://www.warren.senate.gov/newsroom/press-releases/warren-schumer-pressley-colleagu​es-president-biden-can-and-should-use-executive-action-to-cancel-up-to-50000-in-federal-st​udent-loan-debt-immediately [https://perma.cc/YC2Z-JQP9].
  9. Id.
  10. See, e.g., Chuck Schumer (@SenSchumer), Twitter (Dec. 6, 2021, 5:41 PM), https://twitte​r.com/SenSchumer/status/1467987566750322694 [https://perma.cc/6285-Q2XT].
  11. See, e.g., Bernie Sanders (@SenSanders), Twitter (Aug. 7, 2020, 12:31 PM), https://twitte​r.com/SenSanders/status/1299021647392002049 [https://perma.cc/Y4RF-7CWB]; Ayanna Pressley (@AyannaPressley), Twitter (Jan. 19, 2021, 1:50 PM), https://twitter.com/AyannaPr​essley/status/1351602827504750595 [https://perma.cc/RW3Q-GDTD].
  12. Sydney Ember, Biden Was Asked About Canceling Student Loan Debt. Progressives Saw an Opening., N.Y. Times (Nov. 16, 2020), https://www.nytimes.com/2020/11/16/us/biden-was-asked-about-canceling-student-loan-debt-progressives-saw-an-opening.html [https://per​ma.cc/DN3Y-VTQE].
  13. Lauren Egan, ‘I Will Not Make That Happen’: Biden Declines Democrats’ Call to Cancel $50K in Student Debt, NBC (Feb. 17, 2021), https://www.nbcnews.com/politics/joe-biden/i-will-not-make-happen-biden-declines-democrats-call-cancel-n1258069 [https://perma.cc/Q6​X9-HDY2].
  14. In October, the Biden administration released the redacted version of a memorandum evaluating the president’s authority to unilaterally cancel student loans. Andrew Marantz, What Biden Can’t Do on Student Debt—And What He Won’t Do, New Yorker (Oct. 29, 2021), https://www.newyorker.com/news/news-desk/what-biden-cant-do-on-student-debt-an​d-what-he-wont-do [https://perma.cc/V65Q-MKWK].
  15. Warren et al., Press Release, supra note 8. Section 1082(a) codifies § 432(a) of the HEA, as originally enacted in 1965.
  16. National Consumer Law Center, Comment Submitted by the National Consumer Law Center to the Consumer Financial Protection Bureau Re: Request for Information Regarding Student Loan Servicing (July 13, 2015), https://www.nclc.org/images/pdf/special_pr​ojects/sl/NCLC_Comments_Student_Loan_Servicing_Jul2015.pdf [https://perma.cc/2Q9K-H9K4].
  17. Luke Herrine, The Law and Political Economy of a Student Debt Jubilee, 68 Buff. L. Rev. 281, 342–43 (2020) (arguing that the Department of Education’s inherent enforcement discretion should settle the issue in favor of legality); see also Dalié Jiménez & Jonathan D. Glater, Student Debt Is a Civil Rights Issue: The Case for Debt Relief and Higher Education Reform, 55 Harv. C.R.-C.L. L. Rev. 131, 142 (2020) (discussing the policy benefits of debt relief).
  18. Letter from Eileen Connor, Legal Dir., Harvard L. Sch. Legal Servs. Ctr., to Elizabeth Warren, U.S. Sen. from Massachusetts (Jan. 13, 2020), https://static.politico.com/4c/c4/dfadd​bb94fd684ccfa99e34bc080/student-debt-letter-2.pdf.pdf [https://perma.cc/WU39-ATP5].
  19. Michael Stratford, Pelosi Rebuffs Schumer’s Push to Get Biden to Cancel Student Debt, Politico (July 29, 2021, 10:32 AM), https://www.politico.com/news/2021/07/29/pelosi-schume-student-debt-501521 [https://perma.cc/A6US-5AP6].
  20. For example, a Harvard law professor and student argued that there is “a strong possibility that the initiative might be tied up in court for many years.” Howell Jackson & Colin Mark, Opinion, Executive Authority to Forgive Student Loans Is Not So Simple, Regul. Rev. (Apr. 19, 2021), https://www.theregreview.org/2021/04/19/jackson-mark-executive-authority-forgive-student-loans-not-simple/ [https://perma.cc/ZG4V-FJ66]; see also Jordan Weissman, What Biden Should Do About Student Debt, Slate (Nov. 19, 2020, 10:40 AM) (arguing that loan forgiveness through unilateral executive action may not hold up to legal challenges), https://slate.com/business/2020/11/biden-student-debt-forgiveness.html [https://perma.cc/6X​4G-EHQD]; Annie Nova, Student Loan Forgiveness Is Still Up in the Air. What to Do in the Meantime, CNBC (Sep. 24, 2021, 10:58 AM EDT) (explaining that experts believe cancelling student loans via executive action may be held up in the courts), https://www.cn​bc.com/2021/09/24/what-to-do-while-waiting-for-news-on-student-loan-forgiveness-.html [h​ttps://perma.cc/T62C-WKEB].
  21. Mila Sohoni, On Dollars and Deference: Agencies, Spending, and Economic Rights, 66 Duke L.J. 1677, 1706–08 (2017) (discussing standing and Executive-driven funding schemes); Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1110–11 (2021) (noting difficulties obtaining standing to challenge Appropriations Clause violations).
  22. 25 U.S.C. § 1496(d).
  23. 38 U.S.C. §§ 3720(a)(4); 5302(b).
  24. 7 U.S.C. § 1981(b)(4).
  25. 15 U.S.C. § 634(b)(2).
  26. The Treasury Secretary may also unilaterally waive customs claims. 19 U.S.C. § 1617 (2018). Fee waivers might provide another example of this standing dead zone. See, e.g., 15 U.S.C. § 636(a)(33)(E) (waiving guarantee fees for veterans applying for small business loans).
  27. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
  28. Id. at 560–61.
  29. Id. at 561–62.
  30. See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).
  31.  Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 208, 220 (1974) (determining that plaintiff did not have standing to allege that members of Congress were violating the Incompatibility Clause by holding commissions in the military while serving in office).
  32. Ex parte Lévitt, 302 U.S. 633, 633 (1937) (per curiam).
  33. Id. at 634.
  34. Lujan, 504 U.S. at 575–76; Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018).
  35. Lujan, 504 U.S. at 602 (Blackmun, J., dissenting).
  36. Id. at 604.
  37. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974) (“The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013).
  38. Id. at 408; see also Lujan, 504 U.S. at 576–77.
  39. Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 168, 179 (1992).
  40. Id. at 173. Alternative standards for granting standing include whenever Congress creates a cause of action or when the plaintiff is the party most interested in the outcome of the case. Richard M. Re, Relative Standing, 102 Geo. L.J. 1191, 1197 (2014).
  41. Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
  42. Antideficiency Act, Pub. L. No. 97-258, 96 Stat. 877 (1982); Federal Credit Reform Act, Pub. L. No. 93-344, 104 Stat. 1388-610 (1990) (codified as amended at 2 U.S.C. §§ 661–661f).
  43. To be subject to review, agency action must be final and there must be no alternative remedy. 5 U.S.C. § 704. Judicial review may also be precluded or committed to agency discretion by law. 5 U.S.C. § 701(a).
  44. See generally Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 Va. L. Rev. 219, 219–26 (1986) (describing negotiations lasting from 1933 until 1946).
  45. Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1248 (1982).
  46. 5 U.S.C. § 553.
  47. 5 U.S.C. §§ 554–55.
  48. 5 U.S.C. §§ 556–57.
  49. 5 U.S.C. § 702.
  50. 5 U.S.C. § 706.
  51. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2562, 2576 (2019).
  52. 5 U.S.C. § 702 (2018).
  53. CARES Act, Pub. L. No. 116-136, § 3513, 134 Stat. 281, 404 (2020).
  54. Press Release, Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic (Aug. 8, 2020), https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ [https://pe​rma.cc/VTU6-2339].
  55. Memorandum from President Donald J. Trump to the Secretary of Education, Pausing Federal Student Loan Payments (Jan. 20, 2021), https://trumpwhitehouse.archives.gov/presid​ential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ [htt​ps://perma.cc/L24P-XP8Z].
  56. 20 U.S.C. § 1087e(f)(2)(D).
  57. 20 U.S.C. § 1087; Total and Permanent Disability Discharge of Loans Under Title IV of the Higher Education Act, 86 Fed. Reg. 46972, 46972 (Aug. 23, 2021). Press Release, U.S. Dep’t of Educ., Over 323,000 Federal Student Loan Borrowers to Receive $5.8 Billion in Automatic Total and Permanent Disability Discharges (Aug. 19, 2021), https://www.ed.gov/n​ews/press-releases/over-323000-federal-student-loan-borrowers-receive-58-billion-automati​c-total-and-permanent-disability-discharges [https://perma.cc/H2V2-VPL5].
  58. HEROES Act of 2003, Pub. L. No. 108-76, § 2, 117 Stat. 904 (2003) (codified at 10 U.S.C. §§ 1098aa–1098ee); Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces Transformational Changes to the Public Service Loan Forgiveness Program, Will Put Over 550,000 Public Service Workers Closer to Loan Forgiveness (Oct. 6, 2021), https://www.ed.gov/news/press-releases/us-department-education-announces-transformation​al-changes-public-service-loan-forgiveness-program-will-put-over-550000-public-service-w​orkers-closer-loan-forgiveness [https://perma.cc/Y77B-QGPZ]. The Department of Education did not publish its action in the Federal Register but confirmed the basis of the action to the author.
  59. Press Release, U.S. Dep’t of Educ., Education Department Approves $415 Million in Borrower Defense Claims Including for Former DeVry University Students (Feb. 16, 2022), https://www.ed.gov/news/press-releases/education-department-approves-415-million-borrow​er-defense-claims-including-former-devry-university-students [https://perma.cc/G5TW-8FG​Q].
  60. Letter from Eileen Connor to Elizabeth Warren, supra note 18, at 3.
  61. Herrine, supra note 17, at 395–97.
  62. 262 U.S. 447, 478–80 (1923).
  63. Id. at 487.
  64. 392 U.S. 83, 104–06 (1968).
  65. Flast v. Cohen, 392 U.S. 83, 102–04 (1968).
  66.  Joshua G. Urquhart, Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations and Permissive Taxpayer Standing Doctrines, 81 Fordham L. Rev. 1263, 1271 (2012).
  67. Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 592 (2007).
  68. Id. at 593, 605.
  69. Letter from Eileen Connor to Elizabeth Warren, supra note 18, at 2. See also 2 U.S.C. § 661c (referencing student loans as exempt from general appropriations requirements).
  70. See Hein, 551 U.S. at 633, (Scalia, J., concurring) (2007).
  71. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
  72. Id. at 562.
  73.  See Note, Nontaxpayer Standing, Religious Favoritism, and the Distribution of Government Benefits: The Outer Bounds of the Endorsement Test, 123 Harv. L. Rev. 1999 (2010) (discussing distribution of government benefits in ways that favor certain religions).
  74. Coleman v. Miller, 307 U.S. 433, 438 (1939).
  75. Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 93940 (1983).
  76. Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2659 (2015).
  77. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 576–77 (1992); Raines v. Byrd, 521 U.S. 811, 819–20 (1997).
  78. See, e.g., Chenoweth v. Clinton, 181 F.3d 112, 117 (D.C. Cir. 1999) (rejecting a challenge to creation of a program through executive order under a duly enacted federal statute); U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015) (determining that the House could sue based on constitutional claims, such as violations of the Appropriations Clause, but not for claims about the implementation of a statute).
  79. Burwell, 130 F. Supp. 3d at 58.
  80. U.S. House of Representatives v. Mnuchin, 976 F.3d 1, 4 (D.C. Cir. 2020) (vacated as moot).
  81. Id. at 15.
  82. Id. at 13.
  83. See text accompanying note 69.
  84.  When Texas Governor Greg Abbott was the state’s Attorney General, he reportedly described his job: “I go into the office, I sue Barack Obama, and then I go home.” Rachel Weiner, Five things to know about Greg Abbott, Wash. Post (July 15, 2013), https://www.washingtonpost.com/news/the-fix/wp/2013/07/15/five-things-to-know-about-gr​eg-abbott/ [https://perma.cc/JQ4U-5F9R].
  85. See, e.g., Texas v. United States, 809 F.3d 134, 146, 188 (5th Cir. 2015) (challenging the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program); Katherine Mims Crocker, An Organizational Account of State Standing, 94 Notre Dame L. Rev. 2057, 2058 (2019) [hereinafter Crocker, Organizational Account] (discussing the ensuing consternation within legal academia).
  86. Crocker, Organizational Account, supra note 85, at 2061–67. See also Katherine Mims Crocker, Note, Securing Sovereign State Standing, 97 Va. L. Rev. 2051, 2056–68 (2011) (describing the evolution of jurisprudence regarding states’ sovereign interests); Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387, 410–11 (1995) (describing states as plaintiffs).
  87. Woolhandler & Collins, supra note 86, at 392–93.
  88. Hawaii v. Trump, 859 F.3d 741, 764–65 (9th Cir. 2017). See also Texas v. United States, 809 F.3d 134, 152–53 (5th Cir. 2015) (finding standing to sue the Obama administration for DAPA); Massachusetts v. HHS, 923 F.3d 209, 222–23 (1st Cir. 2019) (finding standing because the Trump administration’s attempt to limit access to contraceptives under the Affordable Care Act would increase use of state funded contraceptive services).
  89. Woolhandler & Collins, supra note 86, at 410–11.
  90. Crocker, Organizational Account, supra note 85, at 2064–65; Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 608 (1982).
  91. Missouri v. Illinois, 180 U.S. 208, 241 (1901) (holding that standing may be asserted when the “health and comfort” of a state’s citizens are in jeopardy).
  92. It is worth noting that if the decision to abrogate student loan debt is committed to agency discretion by law, then the APA does not in fact apply, meaning that the cause of action remains unavailable to all, including loan servicers. 5 U.S.C. § 701; Herrine, supra note 17, at 368–95.
  93. U.S. Dep’t of Educ., Who’s My Student Loan Servicer?, https://studentaid.gov/manage-loans/repayment/servicers [https://perma.cc/8D6Z-XFPQ].
  94. U.S. Dep’t of Educ. & Great Lakes Educ. Loan Servs., Amendment of Solicitation/Modification of Contract, at 4 (effective Sept. 1, 2014), https://studentaid.gov/site​s/default/files/ED-FSA-09-D-0012_MOD_0080_GreatLakes.pdf [https://perma.cc/ZR96-ZZ​9N].
  95. Cottrell v. Alcon Lab’ys, 874 F.3d 154, 163 (3d Cir. 2017).
  96. Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970). See also Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703, 708 (2019) (describing the zone of interests test).
  97. Data Processing, 397 U.S. at 153.
  98.  The Supreme Court has noted that “prudential standing” really reflects statutory interpretation and “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is therefore markedly different from constitutional Article III standing and rests on the scope of the statute, not constitutional restrictions.
  99. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987) (noting that “[t]he test is not meant to be especially demanding”).
  100. Air Courier Conf. of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 530 (1991).
  101. Id. at 519–20.
  102. Id. at 528.
  103. Dir., Off. of Workers’ Comp. Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 130 (1995).
  104. See, e.g., Nat’l Credit Union Admin. v. 1st Nat. Bank & Tr. Co., 522 U.S. 479, 488 (1998); Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970).
  105. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 137 (2014)
  106. Professor Nelson argues that the Court’s Data Processing decision should be read such that action lying arguably within the “zone of interests” is a necessary but not sufficient condition for judicial review. Nelson, supra note 96, at 710–11. Yet even under the more expansive view of prudential standing, where being within the arguable zone of interests ensures judicial review, plaintiffs’ claims will fail.
  107. Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219, 1219 (codified as amended in scattered sections of 20 U.S.C.).
  108.  See 20 U.S.C. § 1018a (providing for Department of Education contracting in compliance with federal procurement laws).
  109. Jonathan R. Siegel, Zone of Interests, 92 Geo. L.J. 317, 335–37 (2004).
  110. See IRS, An Offer in Compromise May Help Some Taxpayers Settle Their Tax Bill (May 3, 2021), https://www.irs.gov/newsroom/an-offer-in-compromise-may-help-some-taxpayers-settle-their-tax-bill [https://perma.cc/Z4UC-SVFU] (“The goal is a compromise that suits the best interest of both the taxpayer and the agency.”).
  111. Air Courier Conf. of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 530 (1991).
  112. 20 U.S.C. § 1098a.
  113. See Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038, 1051 (D.C. Cir. 1989) (determining that in-house employees’ interests were antithetical to those of the contractors, whose interests the statute in question sought to further).
  114. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990).
  115. Dismas Charities, Inc. v. DOJ, 287 F. Supp. 2d 741, 742–43 (W.D. Ky. 2003).
  116. Id. at 746.
  117. Id. at 748.
  118. Courtney v. Smith, 297 F.3d 455, 458 (6th Cir. 2002).
  119. Id. at 466. See also Am. Fed’n of Gov’t Emps., Loc. 2119 v. Cohen, 171 F.3d 460, 471 (7th Cir. 1999) (“[T]he interests of federal employment, and the goal of private procurement are inconsistent.”); Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038, 1051 (D.C. Cir. 1989) (reasoning that the interests of federal employees are antithetical to those of federal contractors, and therefore inconsistent with the interests of a federal statute allowing for contracting).
  120. See, e.g., Immigr. & Naturalization Serv. v. Legalization Assistance Project of the Los Angeles Cnty. Fed’n of Lab., 510 U.S. 1301, 1305 (1993) (deciding that legal services organizations were not within the zone of interests an immigration statute sought to protect).
  121. See, e.g., Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 669 (1993) (finding standing to challenge ordinance according preferential treatment to minority-owned businesses).
  122. U.S. Gov’t Accountability Off., A Snapshot of Government-Wide Contracting for FY 2020 (infographic) (June 22, 2021), https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2020-infographic [https://perma.cc/KA6Y-HUJS].

Lawmaking in the Legitimacy Gap: A Short History of the Supreme Court’s Interpretive Finality

Despite bestowing an epic name upon the nation’s highest tribunal, the Constitution says precious little about the weight that we must accord to its constitutional decisions. That silence has spawned serious division among jurists and scholars. Some argue that the Supreme Court may conclusively determine only the rights of the parties before it. Yet others contend that its interpretations, like the Constitution itself, are “the supreme Law of the Land.” Whichever view is correct is today a high-stakes question, given that the Court, practically speaking, enjoys interpretive finality. But its privileged position has a questionable historical pedigree. Far from the Court serving as the ultimate expositor of constitutional meaning, constitutional interpretation was originally seen as a dialogue between the Court and the People. The Court, no doubt, could construe the Constitution to settle individual controversies. But when it erred, the People could swiftly correct it by amending the Constitution. A forgotten but important example of that model, this Essay contends, was the People’s reversal of Chisholm v. Georgia through the Eleventh Amendment. Yet the “Chisholm model” was not to last, and the amendment process is nearly defunct. Why? One reason, this Essay suggests, is that the Court would later begin to render decisions within “legitimacy gaps”—where its constitutional interpretations were demonstrably erroneous but also insufficiently unpopular to reverse. Such legitimacy gaps corrode the design of Article V and facilitate the judicial arrogation of power. But they also have a straightforward remedy: judicial adherence to the Constitution’s original meaning.

Introduction

Even before its formal creation, the federal judiciary spawned sharp debate about its proper role in a system of separated powers. Writing as “Publius” in defense of the proposed Constitution, Alexander Hamilton famously remarked that, among the three “departments,” the judiciary would be the “least dangerous.”1.The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).Show More Having “neither FORCE nor WILL,” it could merely render judgments in individual cases and controversies.2.Id.Show More And it still would “depend upon the aid of the executive arm” for those judgments to carry real-world significance.3.Id.Show More But even at the Framing, Hamilton hardly could have boasted that his depiction of the judicial power enjoyed universal acclaim. Less famous, but no less important, was the attack on Article III that “Brutus” had mounted in the Anti-Federalist.4.See Essays of Brutus No. XII, N.Y.J., Feb. 7, 1788, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates 298 (Ralph Ketcham ed., 1986).Show More Rejecting claims of a timid judiciary, Brutus instead forecasted that it would acquire inordinate strength.5.Id. at 298–99.Show More It alone had “the power, in the last resort, to determine . . . the meaning and construction of the constitution.”6.Id. at 299.Show More Courts could thus control the legislature in a way that the legislature could not control the courts: since “the constitution is the highest or supreme law,” Brutus said, courts would enjoy the prerogative to reject “a law, which, in their judgment, opposes the constitution.”7.Id.Show More And without a practical mechanism confining courts to the Constitution’s “letter,” their constructions would become “very liberal” and their powers “supreme and uncontrollable.”8.Id. at 299–300.Show More

This back-and-forth, it turns out, presaged central debates about the nature of judicial power that persisted long after the Framing. Consider, for instance, the following question: Who is the legitimate interpreter of the federal Constitution? One view suggests that there is no single answer. Rather, everybody with a stake in constitutional meaning—the executive, legislature, judges, and People—may claim an interpretive role.9.See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 159 (1999); see alsoMichael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 221 (1994) (arguing that authority to interpret the law is a shared power among the three branches).Show More But another answer is that the Supreme Court really is supreme and that its constitutional interpretations are final.10 10.Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution . . . . It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land”).Show More On that view, the Court’s opinions (and the “constitutional law” they generate) become part of the Constitution itself.11 11.Id.Show More Through the Supremacy Clause, then, they constitute “the supreme Law of the Land.”12 12.Id.; see also U.S. Const. art. VI, cl. 2 (stating the same).Show More

Whichever view is correct has obvious and profound consequences for American democracy. But belying that issue’s central importance is the Constitution’s laconic treatment of it. We learn from Article III that federal courts will exercise something called the “judicial Power.”13 13.U.S. Const. art. III, § 1.Show More We also learn that there will (indeed, must) be “one supreme Court” and that Congress may (but need not) create various “inferior Courts.”14 14.Id.Show More And, Article III tells us, these courts’ subject-matter jurisdiction extends only to certain “cases or controversies.”15 15.Id. art. III, § 2.Show More That is about it. We do not learn which aspects of the Supreme Court’s work product (whether opinions or mere judgments) are binding, whether either may bind non-parties, or, at least directly, whether even the lower courts must follow Supreme Court precedent.16 16.See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 834–38 (1994).Show More The Supremacy Clause is not of much help either. Though labeling “supreme” the “Constitution” and “Laws of the United States,” the clause never equates judicial opinions with the “Constitution” or “Laws.”17 17.U.S. Const. art. VI, cl. 2.Show More Indeed, it omits mention of opinions altogether.18 18.Id.Show More

Given that lacuna, some defenders of “judicial supremacy” (that is, of judges’ interpretive finality) have conceded that it cannot be justified by the text alone.19 19.See, e.g., Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Comment. 455, 459–60 (2000).Show More Professors Larry Alexander and Frederick Schauer, for instance, contend that because “a central moral function of law is to settle what ought to be done,” treating judicial opinions as functionally supreme can have important practical benefits.20 20.Id. at 457.Show More Still, Alexander and Schauer acknowledge that their thesis has encountered “thoughtful and troubling” criticisms about the ahistorical nature of judicial supremacy.21 21.Id. at 458.Show More Professor Edward Hartnett, for example, has persuasively argued that history refutes “opinion supremacy.”22 22.Hartnett, supranote 9, at 126–36. I take the phrase “opinion supremacy” from William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1845 (2008).Show More Instead, it confirms that constitutional interpretation should be a “conversation” between courts and others “legitimately interested in the meaning of the Constitution,” like the political branches.23 23.Hartnett, supranote 9, at 159.Show More Judicial attempts to arrogate the sole power of final interpretation—as the Supreme Court claimed to do most famously in Cooper v. Aaron24 24.See supra note 10.Show More—are thus misguided.25 25.Hartnett, supranote 9, at 126.Show More

Like Professor Hartnett and others, this Essay contends that judicial supremacy is less a textual command than an unwritten and historically contingent norm. But this Essay makes that point by examining a deeply underappreciated constitutional moment in American history: the Supreme Court’s 1793 decision in Chisholm v. Georgia26 26.2 U.S. (2 Dall.) 419 (1793).Show More and its swift demise through the People’s ratification of the Eleventh Amendment.27 27.See U.S. Const. amend. XI.Show More Chisholm nominally concerned whether Article III’s grant of diversity jurisdiction abrogated states’ immunity from suit by private individuals in federal court.28 28.Chisholm, 2 U.S. (2 Dall.) at 430–31.Show More Yet as Part I details, the Chisholm decision—the Court’s first construing the Constitution29 29.5 The Documentary History of the Supreme Court of the United States, 1789–1800, at 127 (Maeva Marcus et al. eds., 1994) [hereinafter DHSC].Show More and the first to be reversed by an amendment30 30.Id.Show More—has a hidden significance. It provides an early and provocative example of how constitutional interpretation was viewed as a dialogue between the Court and the People. The Court, to be sure, was entitled to construe the constitutional text. But when it erred, the People could swiftly correct it with a more sublime exposition. The Chisholm incident thus contains valuable clues about how the People believed they would maintain interpretive supremacy through Article V.

As Part II discusses, however, the People’s check on the judiciary was not to last. Like Brutus predicted,31 31.See Essays of Brutus No. XII, supranote 4, at 300 (predicting that courts would subordinate the Constitution’s text to its “spirit and reason” to reach policy-oriented outcomes).Show More judicial review would come to operate within the context of what I term “legitimacy gaps”—where constitutional decisions, though demonstrably inconsistent with the Constitution itself, are also tough to reverse.32 32.I will take a moment here to describe how I use the term “legitimacy” throughout—a usage informed by Professor Richard Fallon’s recent work on the topic. We can think of “legitimacy” in three different respects: legal, moral, and sociological. See Richard H. Fallon, Law and Legitimacy in the Supreme Court 21 (2018). Put simply, a decision is morally legitimate when it represents what ought to be done, while it is sociologically legitimate when it enjoys wide popular support. Id. The question of legal legitimacy is more complex, and I define it differently than does Professor Fallon. See id. at 49–51. In my view, legitimacy unfolds on a spectrum, and a constitutional decision is most legally legitimate when it both stems from originalist decision procedures and is substantively correct as an original matter. Ideally, of course, a decision would embody all three types of legitimacy—legal, moral, and sociological. But in practice, the three planes can diverge. A decision may be legally illegitimate and yet enjoy sociological legitimacy given its wide popular support. Indeed, that is how I conceptualize the “legitimacy gap”—when a decision is arguably or even clearly legally illegitimate and yet enjoys sufficient sociological legitimacy to prevent its repudiation. Additionally, I should clarify that legitimacy in my view differs from authority. There may be situations in which a rule of decision is legally illegitimate under the criteria I set out above and yet possibly we should still accept it as binding authority; the doctrine of stare decisis, for instance, seeks to explain when we should do so in the context of overruling precedent. See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (“[S]tare decisis has consequence only to the extent it sustains incorrect decisions . . . .”). Or, to give another example, a lower-court judge remains bound to apply indistinguishable Supreme Court precedent even when such precedent is indefensible as an original matter.Show More Sometimes, for example, a dubious right gained popular backing that was at once appreciable but also insufficient to produce a constitutional amendment. Yet the Court still codified the right into “constitutional law.”33 33.Even ardent judicial supremacists acknowledge that judge-made “constitutional law” is distinct from the Constitution itself. See, e.g.,Eric J. Segall, The Constitution Means What the Supreme Court Says It Means, 129 Harv. L. Rev. F. 176, 178 (2016).Show More While it thus could not have achieved constitutional status through Article V on its own merits, the right was insufficiently unpopular to abrogate by an amendment. Or, perhaps worse, the People could affirmatively recognize new rights with a constitutional amendment, but the Court could then undermine those guarantees with an erroneous construction that was insufficiently unpopular to dislodge. The Court’s construction was thus illegitimate, but not so illegitimate that it spurred prompt reversal. The rise of the Court’s interpretive finality, in other words, hinged on the existence of background levels of polarization sufficient to insulate controversial decisions from correction by the People.

But the rabid polarization that has stymied popular checks on the judiciary should not be seen, in turn, as a license for the judiciary to freely operate within those legitimacy gaps. Amendments’ rarity should instead cause judges to be even more circumspect in their constitutional constructions. To that end, this Essay suggests that courts can mitigate the lack of a popular-constitutional check by declining to make new decisions—and hesitating to extend old ones—that are dubious as an original matter. By seeking fidelity to original meaning, judges can defuse the “judicial tyranny” that legitimacy gaps may otherwise create.34 34.Robert Bork, The Tempting of America: The Political Seduction of the Law 140 (1990); see also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17, 22 (1997) (“It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.”).Show More

I. Chisholm and the Lost Conversation Between the Court and the People

By its terms, Article III of the Constitution provides that “[t]he judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State.”35 35.U.S. Const. art. III, § 2, cl. 1.Show More But does that grant of jurisdiction mean that private plaintiffs may hale even unconsenting states into a federal tribunal? That was the question the Supreme Court considered in Chisholm v. Georgia.36 36.2 U.S. (2 Dall.) 419, 430 (1793) (opinion of Iredell, J.); see also id. at 452 (opinion of Blair, J.).Show More During the Revolutionary War, Georgia had contracted with South Carolina merchant Robert Farquhar for the purchase of goods worth about £9,000 sterling.37 37.5 DHSC, supra note 29, at 127.Show More Farquhar delivered the goods but, despite his “many demands,” Georgia never paid.38 38.Id.Show More Farquhar “spent the remainder of his life trying to recover the debt.”39 39.Id.Show More Yet he died in 1784, still uncompensated.40 40.Id.Show More In response, Farquhar’s executor, Alexander Chisholm, sued Georgia in the United States Circuit Court for the District of Georgia.41 41.Id. at 127–28.Show More The novel claim put Georgia’s government “at a loss to know how to proceed.”42 42.Id. at 128.Show More It eventually filed a plea to the jurisdiction, asserting that it could not “be drawn or compelled” into court without its consent.43 43.Plea to the Jurisdiction, Chisholm ex rel. Farquhar v. Georgia, (C.C.D. Ga. Oct. 21, 1791), in 5 DHSC, supra note 29, at 143, 143.Show More

District Judge Nathaniel Pendleton, sitting alongside circuit Justice James Iredell, agreed.44 44.See 5 DHSC, supra note 29, at 130.Show More Though Pendleton’s opinion is lost to history, Iredell’s survived.45 45.Id. at 130 n.25.Show More He began by noting the practical oddities of subjecting a state to judicial process. It seemed that Georgia’s governor, Edward Telfair, would be the relevant natural person to appear on Georgia’s behalf.46 46.See Chisholm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 152.Show More But if many plaintiffs sued Georgia, Telfair could not possibly defend all the suits at once. So, Iredell reasoned, it was proper that subordinate counsel should appear on Georgia’s behalf and defend the action.47 47.Id.Show More Satisfied that Georgia’s plea to the jurisdiction was procedurally valid, Iredell turned to jurisdiction itself. He noted first that even if Article III permitted state suability in theory, Congress had not explicitly created such jurisdiction by statute.48 48.Id. at 154.Show More In any event, he said, only the Supreme Court could even exercise such jurisdiction.49 49.Id. at 153.Show More Article III specifies that the Court “shall have original Jurisdiction” in cases “in which a State shall be Party,”50 50.U.S. Const. art. III, § 2, cl. 2.Show More and given the importance of state suability, he reasoned, the Court’s jurisdiction must not only be original, but also exclusive.51 51.Chisolm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supranote 29, at 148, 153.Show More He and Pendleton thus dismissed the suit.52 52.5 DHSC, supranote 29, at 130–31.Show More

Undeterred, Chisholm filed an original action against Georgia in the Supreme Court itself.53 53.Id. at 131.Show More Georgia refused to appear, so the Court heard argument only from counsel for Chisholm, Edmund Randolph.54 54.Id. at 134.Show More Both Randolph and the five Justices who heard the case understood that its central issue—state suability—was paramount.55 55.SeeChisholm v. Georgia, 2 U.S. (2 Dall.) 419, 419 (1793); see also id. at 432 (opinion of Iredell, J.); id. at 450 (opinion of Blair, J.); id. at 453 (opinion of Wilson, J.); id. at 467–68 (opinion of Cushing, J.); id. at 479 (opinion of Jay, C.J.).Show More The states had accumulated massive debts to private creditors during the Revolutionary War.56 56.5 DHSC, supranote 29, at 2.Show More They had also expropriated many Loyalists’ property.57 57.Id.Show More If creditors or Loyalists could use the federal courts to vindicate those claims—states’ objections notwithstanding—states could face the prospect of bankruptcy. Unsurprisingly, the Chisholm litigation attracted intense public scrutiny.58 58.Id. at 134.Show More

For the “numerous and respectable audience” that had gathered in Philadelphia to hear the Court’s decision in February 1793, the states initially might have appeared secure.59 59.Id.Show More Justice Iredell, back from the circuit assignment, delivered his opinion first.60 60.Chisholm, 2 U.S. (2 Dall.) at 429.Show More He again rejected the claim that states could be sued in federal court, echoing his statutory arguments from the circuit.61 61.Id. at 430, 432 (opinion of Iredell, J.).Show More But as his colleagues (Justices Blair, Wilson, Cushing, and Chief Justice Jay) delivered their own opinions seriatim, it became clear that Iredell would not prevail. Rather—relying on everything from the Constitution’s supposedly plain text62 62.Id. at 467 (opinion of Cushing, J.); id. at 476–77 (opinion of Jay, C.J.).Show More to sundry European philosophers63 63.Id. at 457–63 (opinion of Wilson, J.).Show More—the four contended that, indeed, Article III had abrogated states’ immunity from suit.

The decision “fell upon the country with a profound shock”64 64.5 DHSC, supranote 29, at 4; accord James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269, 1278 (1998).Show More—and for good reason. George Mason and Patrick Henry had criticized the proposed Constitution for its apparent codification of state suability.65 65.Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1592–93 (2002).Show More But “during the ratification debates . . . both James Madison and John Marshall [had] explicitly asserted that Article III would not expose unconsenting states to suit by individuals.”66 66.Id. at 1564.Show More Likewise, Alexander Hamilton had written in Federalist No. 81 that it was “inherent in the nature of sovereignty” for a state “not to be amenable to the suit of an individual without its consent.”67 67.The Federalist No. 81, supra note 1, at 486 (Alexander Hamilton) (emphasis omitted).Show More So for Anti-Federalists who had relented when given those guarantees, Chisholm was no doubt a stinging decision.

And their anger was justified. Chisholm’s interpretation of Article III was both inconsistent with the ratification debates and simply wrong: Unconsenting states’ immunity from process was a personal-jurisdictional backdrop that Article III was not supposed to abolish.68 68.Nelson, supra note 65, at 1565–66. This is not to say that, inversely, states thus enjoyed constitutional immunity from all process in the federal courts. However repugnant suits against states by individuals might have been, subjecting states to process in other types of suits—such as those between states or between a state and the United States, at least so long as Congress established the requisite statutory jurisdiction over such disputes—seems to accord with the original design of Article III. See id. at 1631–32.Show More More important for our purposes, though, was the ensuing reaction. Observers almost immediately began to contest the deference due the Supreme Court’s pronouncement. True, the Court found defenders in various quarters. Noah Webster’s paper, the American Minerva, ran an editorial strongly defending judicial supremacy.69 69.See An Intemperate Resolution of Georgia, Am. Minerva, Jan. 15, 1794, reprinted in 5 DHSC, supra note 29, at 237, 238.Show More The Supreme Court had “deliberately decided [that Article III] extends to enable a person to sue a State,” it said.70 70.See id.Show More “This decision is then a law of the United States, or rather a part of the constitution,” and thus “binding on every citizen.”71 71.Id. (emphasis added).Show More Edmund Pendleton likewise wrote to his nephew Nathaniel that though Chisholm seemed wrongly decided, he supposed that it “must be taken for law.”72 72.Letter from Edmund Pendelton to Nathaniel Pendleton (Aug. 10, 1793), reprinted in 5 DHSC, supranote 29, at 232, 232.Show More A similar and “striking . . . defense of the federal judiciary” arose from the Virginia Senate.73 73.Id. at 285–86.Show More When the House of Delegates excoriated “the decision of the Supreme Fœderal Court,” several state senators lodged protest.74 74.See Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supranote 29, at 338, 338; Proceedings of the Virginia Senate (Dec. 4, 1973), reprinted in 5 DHSC, supra note 29, at 339, 339. This Essay preserves historical sources’ original spelling.Show More The Constitution was “at least ambiguous” on state suability, in their view, so the Court did not deserve the lower house’s “censure.”75 75.Id. at 339.Show More

Among the broader populace, however, the Justices’ opinions were then considered neither infallible nor, as a practical matter, final. The “swift and widespread” perception was instead that Chisholm would soon be reversed through Article V.76 76.2 DHSC, supra note 29, at 338.Show More Vice-President John Adams predicted as much in a letter to his son in March 1793, even before copies of the Chisholm opinions were widely available.77 77.Letter from John Adams to Charles Adams (Mar. 18, 1793), in The Adams Papers Digital Collection (Sara Martin ed., 2022), https://rotunda.upress.virginia.edu/founders/ADMS-04-09-02-0241 [https://perma.cc/39ST-E8KP].Show More “The Report of the late Case in the Supream national Court will soon be made public and the Arguments of the Judges weighed,” he said.78 78.Id.Show More “If it Should be necessary for Congress to interfere by Submitting that part of the Constitution to the Revision of the State Legislatures, they have Authority to do it.”79 79.Id.Show More His assessment was not only correct but even somewhat belated. For on the same day of Chisholm’s decision, the House of Representatives had already begun to contemplate an amendment barring state suability.80 80.2 DHSC, supra note 29.Show More

Resistance likewise gained momentum in the state legislatures. Georgia soon demanded “an explanatory amendment to the Constitution” reversing Chisholm.81 81.Proceedings of the Georgia House of Representatives, Augusta Chron., Nov. 9, 1793, reprinted in 5 DHSC, supranote 29, at 235, 235.Show More And it urged federal “Senators and Representatives to use every means in their power to obtain a speedy ratification.”82 82.Id.Show More Virginia and Connecticut likewise instructed their congressional delegates to secure an amendment “to remove or explain any clause” suggesting “that a state is compellable to answer in any suit.”83 83.Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supranote 29, at 338, 338–39; Resolution of the Connecticut General Assembly (Oct. 29, 1793), reprinted in 5 DHSC, supranote 29, at 609, 609.Show More At Governor John Hancock’s direction, Massachusetts made a similar push.84 84.See Report of a Joint Committee of the Massachusetts General Court, Indep. Chron., June 20, 1793, reprinted in 5 DHSC, supranote 29, at 230, 230.Show More Its General Court recommended that any text in Article III supporting state suability be “wholly expunged from the Constitution.”85 85.Id.Show More For “the Supreme Judicial Court of the United States,” it said, “hath given a construction to [it] very different from the ideas which the Citizens of this Commonwealth entertained . . . at the time it was adopted.”86 86.Id. at 231.Show More

By March 1794 (soon after Chisholm’s first anniversary), the House and Senate had approved the text of the requested explanatory amendment.87 87.4 Annals of Cong. 477 (1795).Show More In its now-famous language, it declared that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”88 88.Id.; see also U.S. Const. amend. XI (stating the same).Show More With lawyerly precision, then, it dispelled the jurisdiction the Chisholm majority had grafted onto Article III.

Ratification came soon after, first in New York and last in North Carolina in February 1795.89 89.See Pfander, supranote 64, at 1271 n.5.Show More As the twelfth in a Union of then fifteen to ratify, North Carolina converted the proposal into the Eleventh Amendment.90 90.Id.Show More The Court’s “first great constitutional case”91 91.Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Va. L. Rev. 1729, 1729 (2007).Show More thus became its first great constitutional defeat: Chisholm’s reign was extinguished in only its second year.

For the People, however, it was the first great interpretive victory. After the Justices had offered their own construction of Article III, the People disagreed, and so they reversed it with a superior exposition through Article V. In this respect, the “explanatory” language of the Eleventh Amendment is revealing.92 92.Pfander, supranote 64, at 1335–43.Show More It treated Chisholm not as having unveiled some truth about the Constitution that required a change. Rather, by informing the judiciary how Article III “shall not be construed,” the amendment framed Chisholm as wrong the day it was decided.93 93.Id.Show More Indeed, the original Constitution had not meant to abolish the states’ existing immunity. But it took the People’s exposition to rescue that original meaning from the Court’s erroneous construction.

Uninformed observers might assume that this exchange sparked a longer tradition of vigorous popular checks on the judiciary, with the People sitting as an “Article V court” to continuously revise judicial interpretations. However, Part II suggests why that future never materialized.

II. Legitimacy Gaps and the Expansion of Judicial Power

Many reasons account for why the Court’s later decisions were (and still are) almost never overruled by amendment. Much of the Court’s docket, to be sure, involves “lawyer’s law”—low-salience disputes incapable of generating broad public interest. But the Court has also waded into some of the most fraught public debates imaginable—from abortion and affirmative action to school prayer and same-sex marriage. Even still, only perhaps five of its decisions in the last two-hundred years have met direct reversal through Article V.94 94.SeeU.S. Const. amend. XIV (overruling Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)); U.S. Const. amend. XVI (overruling Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895)); U.S. Const. amend. XIX (overruling Minor v. Happersett, 88 U.S. 162 (1875)); U.S. Const. amend. XXIV (overruling Breedlove v. Suttles, 302 U.S. 277 (1937)); U.S. Const. amend. XXVI (overruling Oregon v. Mitchell, 400 U.S. 112 (1970)).Show More Why? It seems incredible to believe that the Court always gets it right; the Court itself sometimes disavows important portions of its own jurisprudence. Rather, Chisholm again bears important lessons. Article V worked in that case, it turns out, because state suability was both economically important and not particularly controversial. A wide consensus existed that the Court’s decision was erroneous. And the People were collectively mad enough to do something about it.

But imagine instead that Federalist support for the decision had been more widespread. Indeed, imagine that Federalists and Anti-Federalists had fractured evenly into their respective camps, so that state suability enjoyed public approval and disapproval in about equal measure. In that case, Article III’s actual meaning would not have been particularly important. The Court could have decided Chisholm either way—for or against state suability—and its decision would have been immune from Article V review. If the public had been more polarized on the immunity issue, in other words, Chisholm would have survived as an important precedent in “constitutional law.” And it would have done so even despite its status as a demonstrably erroneous misreading of the original Constitution.

That probably sounds like a bad outcome. The People would have achieved seeming consensus during ratification, only to be duped by misguided seriatim opinions and subsequent polarization. But for many later decisions, that counterfactual is a reality—it’s what really explains why the Court became near-impervious to amendments. So long as its decisions are insufficiently unpopular to reverse, the Court can safely abandon the Constitution’s actual meaning. A couple of brief examples will illustrate such legitimacy gaps in action.

A. Inventing Dubious Rights: New York Times Co. v. Sullivan (1964)95 95.376 U.S. 254 (1964).Show More

As originally understood, the First Amendment had “nothing to do” with regulating libel suits.96 96.Dexter v. Spear, 7 F. Cas. 624, 624 (Story, Circuit Justice, C.C.R.I. 1825) (No. 3,867).Show More To the contrary, libel was a crime and a tort at the Framing and well into the twentieth century.97 97.Ronald A. Cass, Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine, 12 First Amend. L. Rev. 399, 404–06 (2014).Show More As late as 1952, the Supreme Court upheld a libel conviction, given that “libelous utterances” were outside “the area of constitutionally protected speech.”98 98.Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).Show More Twelve years later, however, the Court upended almost two centuries of jurisprudence and inaugurated “a seemingly irreversible process of constitutionalizing the entire law of libel[.]”99 99.Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985) (White, J., concurring in the judgment).Show More First, in New York Times Co. v. Sullivan, the Court held that public officials who sued for libel had to prove that defendants acted with “actual malice”—either while knowing their statements were false or with reckless disregard for their falsity.100 100.Sullivan, 376 U.S. at 279–80.Show More Then, “[t]he Court promptly expanded” that rule101 101.McKee v. Cosby, 139 S. Ct. 675, 677 (2019) (Thomas, J., concurring in denial of certiorari).Show More to include “public figures”—private citizens otherwise engaged in public discourse102 102.Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967) (plurality opinion).Show More—and later even to certain private figures criticized on matters of “public concern.”103 103.Dun & Bradstreet, Inc., 472 U.S. at 751.Show More

As a result, libel actions have become “almost impossible” to win, even when defendants’ accusations are egregious and demonstrably false.104 104.Id. at 771 (White, J., concurring in the judgment); see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 Yale L.J. Forum 708, 708 (2021). (noting “the Sullivan standard is almost impossible to satisfy”).Show More Unsurprisingly, the actual malice standard has generated intense controversy. Justices Gorsuch and Thomas, for instance, have criticized the decision for its raw policymaking and lack of any plausible connection to original meaning.105 105.Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2019) (Thomas, J., dissenting from denial of certiorari); id. at 2426 (Gorsuch, J., dissenting from denial of certiorari).Show More Progressives, too, have called for Sullivan’s revision, since it ended up immunizing outright “lies” rather than “vigorous public exchange.”106 106.Jeremy Lewin, The Progressive Case for Libel Reform, Wall St. J. (Apr. 5, 2021), LUP5https://www.wsj.com/articles/the-progressive-case-for-libel-reform-11617638828?mo​d=article_inline [https://perma.cc/RPB9-LUP5]Show More Yet the decision retains a fair degree of support and is firmly entrenched in our First Amendment mythology.107 107.See, e.g., The Uninhibited Press, 50 Years Later, N.Y. Times (Mar. 8, 2014), https://www​.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html [https://p​erma.cc/7XW7-2GMU].Show More (And, naturally, the last attempt to reverse it through a constitutional amendment failed.)108 108.H.R.J. Res. 1285, 92nd Cong., 118 Cong. Rec. 27714 (1972).Show More So, while Sullivan bears questionable relation to the Constitution itself, it survives in a legitimacy gap as a leading principle of constitutional law.109 109.It is thus an example of the useful distinction Professor Stephen E. Sachs has drawn between “actual law” and “actual practice.” See Stephen E. Sachs, Law Within Limits: Judge Williams and the Constitution 3–9 (Geo. Mason Univ. Ctr. for Study Admin. State, Working Paper No. 21-36, 2021), https://administrativestate.gmu.edu/wp-content/uploads/sites/29/2021/09/Sachs-Law-Within-Limits.pdf [https://perma.cc/G8EB-7RV9]. We can think of “actual law,” on the one hand, as the Constitution itself and its original meaning as fixed at the time of its ratification, while we can think of “actual practice,” on the other, as the precedents of “constitutional law” that lawyers actually apply to litigate concrete cases. See id. These precedents are not the Constitution itself (and for that matter sometimes may be an egregious misinterpretation of it), but they nonetheless supply binding rules of decision that lower courts must apply in the actual practice of constitutional adjudication. See also William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. Univ. L. Rev. 1455, 1472 (2019) (“Under our system’s rules of precedent, legal actors are sometimes commanded to follow a Supreme Court decision ‘as if’ it were the law—even as the underlying legal materials, which command ultimate authority, prescribe a different result. . . . This ‘as if’ law can be binding on particular actors without thereby becoming the law. . . .”).Show More

B. Cabining Rights Guaranteed: United States v. Cruikshank (1876)110 110.92 U.S. 542 (1875).Show More

After the Union’s victory in the Civil War—and the several hundred thousand Union deaths required to achieve it—the nation ratified the “Reconstruction Amendments” in an attempt to unravel Southern white supremacy. The Thirteenth abolished slavery,111 111.SeeU.S. Const. amend. XIII.Show More while the Fifteenth prohibited denial of the right to vote on account of race.112 112.SeeU.S. Const. amend. XV.Show More And the Fourteenth, by its terms, featured three central guarantees: due process, equal protection, and that no state should “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”113 113.U.S. Const. amend. XIV.Show More For reasons that will soon become apparent, the last guarantee has fallen into practical desuetude. But that development was itself bizarre. “At the time of Reconstruction, the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights’”—precisely the sort of rights considered “fundamental” and “inalienable” and that had been “codifi[ed] in the Constitution’s text” via the Bill of Rights.114 114.McDonald v. Chicago, 561 U.S. 742, 813, 818 (2010) (Thomas, J., concurring in the judgment). For a recent exploration of this topic, see Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 176–78 (2021). Barnett and Bernick persuasively criticize the Slaughter-House Court’s “extremely narrow” and “bizarre” reading of the Privileges or Immunities Clause to cover only supposed rights of national citizenship rather than fundamental rights—such as those embodied in the Bill of Rights—more broadly. See id. at 174–78; see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 117–19 (1873) (asserting “privileges and immunities” can be found “in the original Constitution” and its “early amendments”).Show More

It was quite reasonable, then, for federal prosecutors in 1873 to have indicted several white-supremacist Democrats and Klansmen for deprivation of constitutional rights after they had murdered scores of Black militiamen outside a Louisiana courthouse.115 115.James Gray Pope, Snubbed Landmark: WhyUnited States v. Cruikshank (1876)Belongs at the Heart of the American Constitutional Canon, 49 Harv. Civ. Rts.-Civ. Liberties. L. Rev. 385, 387 (2014).Show More The conspiracy and ensuing massacre had undeniably deprived the freedmen of their rights to assemble and bear arms. But in a stunning decision in March 1876, the Court reversed the Klansmen’s convictions.116 116.United States v. Cruikshank, 92 U.S. 542, 556–57 (1875).Show More Building on its earlier Slaughter-House decision, the Court reasoned that assembly and carriage of arms could not be privileges or immunities stemming from United States citizenship, since those rights had preexisted the United States’ creation.117 117.Id. at 544, 551; see also Barnett & Bernick, supra note 114, at 181–84.Show More Thus, their fundamental nature “was the very reason citizens could not enforce [them] against [the] States.”118 118.McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).Show More That conclusion likewise meant that none of the Bill of Rights was enforceable against the South, since all the rights guaranteed in the first nine amendments flowed from principles earlier than nationhood.119 119.Cruikshank, 92 U.S. at 551–52. I thus include the Ninth Amendment, though whichever rights it protects (and whether they are judicially enforceable) is the subject of longstanding debate. See, e.g., Troxel v. Granville, 530 U.S. 57, 91–93 (2000) (Scalia, J., dissenting).Show More So despite the Fourteenth Amendment’s plain and “established” terminology,120 120.McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).Show More the Court applied a construction that reduced its protections to a sliver. Amendment attempts in the 1880s to expand and restore civil rights failed,121 121.See, e.g., H.R.J. Res. 92, 48th Cong., 15 Cong. Rec. 282 (1884).Show More since much of the nation was no doubt pleased by the Court’s narrowing construction. (Indeed, white race-terrorists in the South celebrated the Cruikshank ruling by murdering several Black citizens and Republican officials.)122 122.Pope, supranote 115, at 412–13.Show More Later litigants would thus be forced to seek “selective incorporation” through the vehicle of “substantive” due process.123 123.See, e.g., Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253, 253, 274 (1982).Show More The practical result is that even one-hundred-fifty years later, the Bill of Rights still does not fully apply to the states.124 124.The Third Amendment, the Fifth Amendment’s grand-jury requirement, and the Seventh Amendment’s right to civil jury trials remain unincorporated. McDonald, 561 U.S. at 765 n.13.Show More

Conclusion

It is interesting to imagine how constitutional doctrine might have developed differently had the Chisholm model survived and the “People’s Court” of Article V sat in continuous judgment of Article III. For instance, as is sometimes said with regard to statutes,125 125.See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989). Whether a differential stare decisisregime for statutory precedents makes sense, I would note, is subject to dispute. See Gamble v. United States, 139 S. Ct. 1960, 1987 (2019) (Thomas, J., concurring).Show More we might believe that the People’s failure to overrule an innovative constitutional construction thus ratified it as a definitive gloss. As it turns out, however, modern realities could hardly sustain such a presumption. The amendment process is ossified, and given the realities of political polarization, judges enjoy functional finality in exposing constitutional meaning—even when their constructions are demonstrably erroneous.

The lack of a popular-constitutional check does not mean the situation is hopeless, of course. It just means that, in that check’s absence, restraint must come from the judiciary itself. Courts should endeavor to apply the Constitution’s original meaning—that to which the People agreed—rather than “extorting from precedents something” the Constitution “does not contain.”126 126.Robert Rantoul, Oration at Scituate (July 4, 1836), in Kermit L. Hall, William M. Wiecek & Paul Finkelman, American Legal History 317, 318 (1991).Show More And they “should tread carefully before extending [those] precedents” that are dubious as an original matter.127 127.Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting).Show More Only then are we bound by “the intention of the people,” rather than by the mere “intention of their agents.”128 128.The Federalist No. 78, supranote 1, at 467 (Alexander Hamilton). I confess that in the context of this short essay, I cannot provide a comprehensive account of why originalism is the best interpretive system to achieve legal legitimacy. So, a couple of brief points will have to suffice instead. First, originalism treats as law the historical meaning of the Constitution—a factual and thus falsifiable claim—rather than the unfalsifiable intuitions of individual jurists. See Baude & Sachs, supra note 109, at 1458; see also William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2363, 2398–99 (2015) (declaring originalism to be “meaningfully distinct” because it has “one methodology” and can be subject to “historical falsification.”). In this way, it of all systems most plausibly constrains constitutional interpretation. And second, the meaning to which such interpretation is bound is original public meaning—that to which the People as sovereign originally assented. SeeObergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting) (“The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.”). Originalism thus not only constrains (or, of competing systems, most plausibly constrains), but it constrains to that source of meaning with the most plausible claim to representing truly legitimate authority. See U.S. Const. pmbl. (“We the People of the United States, in Order to form a more perfect Union . . . .”); see also J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. __ (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4049069 [https://perma.cc/4782-UZWL] (recognizing “original meaning…is necessary to preserve the legitimate authority of the people….”).Show More

  1. * J.D., Virginia, 2020; M.St., Oxford, 2017; B.A., Vanderbilt, 2016. Special thanks to Andrew Nell and the other members of the Virginia Law Review editorial team who assisted with this piece, a version of which was fortunate enough to win the Law Review’s 2021 essay competition. Any errors, of course, are mine alone.
  2. The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  3. Id.
  4. Id.
  5. See Essays of Brutus No. XII, N.Y.J., Feb. 7, 1788, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates 298 (Ralph Ketcham ed., 1986).
  6. Id. at 298–99.
  7. Id. at 299.
  8. Id.
  9. Id. at 299–300.
  10. See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 159 (1999); see also Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 221 (1994) (arguing that authority to interpret the law is a shared power among the three branches).
  11. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution . . . . It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land”).
  12. Id.
  13. Id.; see also U.S. Const. art. VI, cl. 2 (stating the same).
  14. U.S. Const. art. III, § 1.
  15. Id.
  16. Id. art. III, § 2.
  17. See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 834–38 (1994).
  18. U.S. Const. art. VI, cl. 2.
  19. Id.
  20. See, e.g., Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Comment. 455, 459–60 (2000).
  21. Id. at 457.
  22. Id. at 458.
  23. Hartnett, supra note 9, at 126–36. I take the phrase “opinion supremacy” from William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1845 (2008).
  24. Hartnett, supra note 9, at 159.
  25. See supra note 10.
  26. Hartnett, supra note 9, at 126.
  27. 2 U.S. (2 Dall.) 419 (1793).
  28. See U.S. Const. amend. XI.
  29. Chisholm, 2 U.S. (2 Dall.) at 430–31.
  30. 5 The Documentary History of the Supreme Court of the United States, 1789–1800, at 127 (Maeva Marcus et al. eds., 1994) [hereinafter DHSC].
  31. Id.
  32.  See Essays of Brutus No. XII, supra note 4, at 300 (predicting that courts would subordinate the Constitution’s text to its “spirit and reason” to reach policy-oriented outcomes).
  33. I will take a moment here to describe how I use the term “legitimacy” throughout—a usage informed by Professor Richard Fallon’s recent work on the topic. We can think of “legitimacy” in three different respects: legal, moral, and sociological. See Richard H. Fallon, Law and Legitimacy in the Supreme Court 21 (2018). Put simply, a decision is morally legitimate when it represents what ought to be done, while it is sociologically legitimate when it enjoys wide popular support. Id. The question of legal legitimacy is more complex, and I define it differently than does Professor Fallon. See id. at 49–51. In my view, legitimacy unfolds on a spectrum, and a constitutional decision is most legally legitimate when it both stems from originalist decision procedures and is substantively correct as an original matter. Ideally, of course, a decision would embody all three types of legitimacy—legal, moral, and sociological. But in practice, the three planes can diverge. A decision may be legally illegitimate and yet enjoy sociological legitimacy given its wide popular support. Indeed, that is how I conceptualize the “legitimacy gap”—when a decision is arguably or even clearly legally illegitimate and yet enjoys sufficient sociological legitimacy to prevent its repudiation. Additionally, I should clarify that legitimacy in my view differs from authority. There may be situations in which a rule of decision is legally illegitimate under the criteria I set out above and yet possibly we should still accept it as binding authority; the doctrine of stare decisis, for instance, seeks to explain when we should do so in the context of overruling precedent. See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (“[S]tare decisis has consequence only to the extent it sustains incorrect decisions . . . .”). Or, to give another example, a lower-court judge remains bound to apply indistinguishable Supreme Court precedent even when such precedent is indefensible as an original matter.
  34. Even ardent judicial supremacists acknowledge that judge-made “constitutional law” is distinct from the Constitution itself. See, e.g., Eric J. Segall, The Constitution Means What the Supreme Court Says It Means, 129 Harv. L. Rev. F. 176, 178 (2016).
  35. Robert Bork, The Tempting of America: The Political Seduction of the Law 140 (1990); see also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17, 22 (1997) (“It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.”).
  36. U.S. Const. art. III, § 2, cl. 1.
  37. 2 U.S. (2 Dall.) 419, 430 (1793) (opinion of Iredell, J.); see also id. at 452 (opinion of Blair, J.).
  38. 5 DHSC, supra note 29, at 127.
  39. Id.
  40. Id.
  41. Id.
  42. Id. at 127–28.
  43. Id. at 128.
  44. Plea to the Jurisdiction, Chisholm ex rel. Farquhar v. Georgia, (C.C.D. Ga. Oct. 21, 1791), in 5 DHSC, supra note 29, at 143, 143.
  45. See 5 DHSC, supra note 29, at 130.
  46. Id. at 130 n.25.
  47. See Chisholm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 152.
  48. Id.
  49. Id. at 154.
  50. Id. at 153.
  51. U.S. Const. art. III, § 2, cl. 2.
  52. Chisolm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 153.
  53. 5 DHSC, supra note 29, at 130–31.
  54. Id. at 131.
  55. Id. at 134.
  56. See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 419 (1793); see also id. at 432 (opinion of Iredell, J.); id. at 450 (opinion of Blair, J.); id. at 453 (opinion of Wilson, J.); id. at 467–68 (opinion of Cushing, J.); id. at 479 (opinion of Jay, C.J.).
  57. 5 DHSC, supra note 29, at 2.
  58. Id.
  59. Id. at 134.
  60. Id.
  61. Chisholm, 2 U.S. (2 Dall.) at 429.
  62. Id. at 430, 432 (opinion of Iredell, J.).
  63. Id. at 467 (opinion of Cushing, J.); id. at 476–77 (opinion of Jay, C.J.).
  64. Id. at 457–63 (opinion of Wilson, J.).
  65. 5 DHSC, supra note 29, at 4; accord James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269, 1278 (1998).
  66. Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1592–93 (2002).
  67. Id. at 1564.
  68. The Federalist No. 81, supra note 1, at 486 (Alexander Hamilton) (emphasis omitted).
  69. Nelson, supra note 65, at 1565–66. This is not to say that, inversely, states thus enjoyed constitutional immunity from all process in the federal courts. However repugnant suits against states by individuals might have been, subjecting states to process in other types of suits—such as those between states or between a state and the United States, at least so long as Congress established the requisite statutory jurisdiction over such disputes—seems to accord with the original design of Article III. See id. at 1631–32.
  70. See An Intemperate Resolution of Georgia, Am. Minerva, Jan. 15, 1794, reprinted in 5 DHSC, supra note 29, at 237, 238.
  71. See id.
  72. Id. (emphasis added).
  73. Letter from Edmund Pendelton to Nathaniel Pendleton (Aug. 10, 1793), reprinted in 5 DHSC, supra note 29, at 232, 232.
  74. Id. at 285–86.
  75.  See Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supra note 29, at 338, 338; Proceedings of the Virginia Senate (Dec. 4, 1973), reprinted in 5 DHSC, supra note 29, at 339, 339. This Essay preserves historical sources’ original spelling.
  76. Id. at 339.
  77. 2 DHSC, supra note 29, at 338.
  78. Letter from John Adams to Charles Adams (Mar. 18, 1793), in The Adams Papers Digital Collection (Sara Martin ed., 2022), https://rotunda.upress.virginia.edu/founders/ADMS-04-09-02-0241 [https://perma.cc/39ST-E8KP].
  79. Id.
  80. Id.
  81. 2 DHSC, supra note 29.
  82. Proceedings of the Georgia House of Representatives, Augusta Chron., Nov. 9, 1793, reprinted in 5 DHSC, supra note 29, at 235, 235.
  83. Id.
  84. Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supra note 29, at 338, 338–39; Resolution of the Connecticut General Assembly (Oct. 29, 1793), reprinted in 5 DHSC, supra note 29, at 609, 609.
  85. See Report of a Joint Committee of the Massachusetts General Court, Indep. Chron., June 20, 1793, reprinted in 5 DHSC, supra note 29, at 230, 230.
  86. Id.
  87. Id. at 231.
  88. 4 Annals of Cong. 477 (1795).
  89. Id.; see also U.S. Const. amend. XI (stating the same).
  90. See Pfander, supra note 64, at 1271 n.5.
  91. Id.
  92.  Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Va. L. Rev. 1729, 1729 (2007).
  93. Pfander, supra note 64, at 1335–43.
  94. Id.
  95. See U.S. Const. amend. XIV (overruling Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)); U.S. Const. amend. XVI (overruling Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895)); U.S. Const. amend. XIX (overruling Minor v. Happersett, 88 U.S. 162 (1875)); U.S. Const. amend. XXIV (overruling Breedlove v. Suttles, 302 U.S. 277 (1937)); U.S. Const. amend. XXVI (overruling Oregon v. Mitchell, 400 U.S. 112 (1970)).
  96. 376 U.S. 254 (1964).
  97. Dexter v. Spear, 7 F. Cas. 624, 624 (Story, Circuit Justice, C.C.R.I. 1825) (No. 3,867).
  98. Ronald A. Cass, Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine, 12 First Amend. L. Rev. 399, 404–06 (2014).
  99. Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).
  100. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985) (White, J., concurring in the judgment).
  101. Sullivan, 376 U.S. at 279–80.
  102.  McKee v. Cosby, 139 S. Ct. 675, 677 (2019) (Thomas, J., concurring in denial of certiorari).
  103. Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967) (plurality opinion).
  104. Dun & Bradstreet, Inc., 472 U.S. at 751.
  105. Id. at 771 (White, J., concurring in the judgment); see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 Yale L.J. Forum 708, 708 (2021). (noting “the Sullivan standard is almost impossible to satisfy”).
  106. Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2019) (Thomas, J., dissenting from denial of certiorari); id. at 2426 (Gorsuch, J., dissenting from denial of certiorari).
  107. Jeremy Lewin, The Progressive Case for Libel Reform, Wall St. J. (Apr. 5, 2021), LUP5https://www.wsj.com/articles/the-progressive-case-for-libel-reform-11617638828?mo​d=article_inline [https://perma.cc/RPB9-LUP5]
  108. See, e.g., The Uninhibited Press, 50 Years Later, N.Y. Times (Mar. 8, 2014), https://www​.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html [https://p​erma.cc/7XW7-2GMU].
  109. H.R.J. Res. 1285, 92nd Cong., 118 Cong. Rec. 27714 (1972).
  110. It is thus an example of the useful distinction Professor Stephen E. Sachs has drawn between “actual law” and “actual practice.” See Stephen E. Sachs, Law Within Limits: Judge Williams and the Constitution 3–9 (Geo. Mason Univ. Ctr. for Study Admin. State, Working Paper No. 21-36, 2021), https://administrativestate.gmu.edu/wp-content/uploads/sites/29/
    2021/09/Sachs-Law-Within-Limits.pdf [https://perma.cc/G8EB-7RV9]. We can think of “actual law,” on the one hand, as the Constitution itself and its original meaning as fixed at the time of its ratification, while we can think of “actual practice,” on the other, as the precedents of “constitutional law” that lawyers actually apply to litigate concrete cases. See id. These precedents are not the Constitution itself (and for that matter sometimes may be an egregious misinterpretation of it), but they nonetheless supply binding rules of decision that lower courts must apply in the actual practice of constitutional adjudication. See also William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. Univ. L. Rev. 1455, 1472 (2019) (“Under our system’s rules of precedent, legal actors are sometimes commanded to follow a Supreme Court decision ‘as if’ it were the law—even as the underlying legal materials, which command ultimate authority, prescribe a different result. . . . This ‘as if’ law can be binding on particular actors without thereby becoming the law. . . .”).
  111. 92 U.S. 542 (1875).
  112. See U.S. Const. amend. XIII.
  113. See U.S. Const. amend. XV.
  114. U.S. Const. amend. XIV.
  115. McDonald v. Chicago, 561 U.S. 742, 813, 818 (2010) (Thomas, J., concurring in the judgment). For a recent exploration of this topic, see Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 176–78 (2021). Barnett and Bernick persuasively criticize the Slaughter-House Court’s “extremely narrow” and “bizarre” reading of the Privileges or Immunities Clause to cover only supposed rights of national citizenship rather than fundamental rights—such as those embodied in the Bill of Rights—more broadly. See id. at 174–78; see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 117–19 (1873) (asserting “privileges and immunities” can be found “in the original Constitution” and its “early amendments”).
  116. James Gray Pope, Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon, 49 Harv. Civ. Rts.-Civ. Liberties. L. Rev. 385, 387 (2014).
  117. United States v. Cruikshank, 92 U.S. 542, 556–57 (1875).
  118. Id. at 544, 551; see also Barnett & Bernick, supra note 114, at 181–84.
  119. McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).
  120. Cruikshank, 92 U.S. at 551–52. I thus include the Ninth Amendment, though whichever rights it protects (and whether they are judicially enforceable) is the subject of longstanding debate. See, e.g., Troxel v. Granville, 530 U.S. 57, 91–93 (2000) (Scalia, J., dissenting).
  121. McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).
  122. See, e.g., H.R.J. Res. 92, 48th Cong., 15 Cong. Rec. 282 (1884).
  123. Pope, supra note 115, at 412–13.
  124. See, e.g., Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253, 253, 274 (1982).
  125. The Third Amendment, the Fifth Amendment’s grand-jury requirement, and the Seventh Amendment’s right to civil jury trials remain unincorporated. McDonald, 561 U.S. at 765 n.13.
  126. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989). Whether a differential stare decisis regime for statutory precedents makes sense, I would note, is subject to dispute. See Gamble v. United States, 139 S. Ct. 1960, 1987 (2019) (Thomas, J., concurring).
  127. Robert Rantoul, Oration at Scituate (July 4, 1836), in Kermit L. Hall, William M. Wiecek & Paul Finkelman, American Legal History 317, 318 (1991).
  128. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting).
  129. The Federalist No. 78, supra note 1, at 467 (Alexander Hamilton). I confess that in the context of this short essay, I cannot provide a comprehensive account of why originalism is the best interpretive system to achieve legal legitimacy. So, a couple of brief points will have to suffice instead. First, originalism treats as law the historical meaning of the Constitution—a factual and thus falsifiable claim—rather than the unfalsifiable intuitions of individual jurists. See Baude & Sachs, supra note 109, at 1458; see also William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2363, 2398–99 (2015) (declaring originalism to be “meaningfully distinct” because it has “one methodology” and can be subject to “historical falsification.”). In this way, it of all systems most plausibly constrains constitutional interpretation. And second, the meaning to which such interpretation is bound is original public meaning—that to which the People as sovereign originally assented. See Obergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting) (“The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.”). Originalism thus not only constrains (or, of competing systems, most plausibly constrains), but it constrains to that source of meaning with the most plausible claim to representing truly legitimate authority. See U.S. Const. pmbl. (“We the People of the United States, in Order to form a more perfect Union . . . .”); see also J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. __ (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4049069 [https://perma.cc/4782-UZWL] (recognizing “original meaning…is necessary to preserve the legitimate authority of the people….”).

Gender Differences in Law School Classroom Participation: The Key Role of Social Context

Introduction

Even though women make up roughly half of the students enrolled in law school today, they do not take up roughly half of the speaking time in law school classes. “Speak Up” and similar studies1.While these studies carry different names (including “Speak Up” and “Speak Now”), we call them Speak Up studies throughout this paper.Show More that have been conducted at several law schools (including Harvard,2.Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 J. Gender, Soc. Pol’y & L. 511, 561–62 (2005) (“The study results show systemic differences between female and male students’ experiences at Harvard Law School in areas ranging from classroom participation and self-confidence to grades and employment.”).Show More Yale,3.Yale L. Women, Yale Law School Faculty and Students: Speak Up about Gender: Ten Years Later 13–14(2012).Show More Stanford,4.Daniel E. Ho & Mark G. Kelman, Does Class Size Affect the Gender Gap? A Natural Experiment in Law, 43 J. Legal Stud. 291, 293 (2014).Show More the University of Chicago,5.Mallika Balachandran, Roisin Duffy-Gideon & Hannah Gelbort, Speak Now: Results of a One-Year Study of Women’s Experiences at the University of Chicago Law School, 2019 U. Chi. Legal F. 647, 647–48 (2019).Show More and the University of Pennsylvania6.Lani Guinier, Michelle Fine & Jane Balin, Becoming Gentlemen: Women, Law School, and Institutional Change 1–2 (1997).Show More) have demonstrated that women are less likely to speak in the law school classroom than are men. Why do women speak less than men? Is that effect fixed, or does it change if circumstances change? And if so, what, if anything, should be changed in the classroom?

To answer these questions, we undertook three studies to examine when and why women at an elite law school, the University of Virginia, speak in class. We found that both social and academic contexts affect women’s participation. In Study 1, we transcribed and coded recordings from 107 class sessions of required first-year law school courses taught during a single academic year. Replicating previous Speak Up studies, we found that female students speak less than male students. That gap closes, however, when professors call on students systematically and when class size is smaller. In Study 2, we surveyed four different graduating classes at four different points during their law school experiences—at orientation, after their first semester, before their second year, and shortly before graduation. We found that women report speaking less than men, but that gap appears during the first year and disappears by the end of the third year. Interestingly, we found that women and men at orientation report similar expectations about how much they will speak in class and that women near graduation report speaking at the same levels that men report speaking. In other words, gender gaps in speaking are not fixed, but dynamic. And, as we will explain, they are a function of context, such as social concerns and dislike of particular pedagogies. Finally, in Study 3, we surveyed students from the Class of 2021 specifically about the social costs of speaking in class. We found that women, more than men, report backlash for speaking in class, and this difference affects their willingness to participate in the law school classroom.

This Article is organized as follows. Part I summarizes previous studies that have been done in this field and introduces the framework of the project. Part II describes the methodology of the study and reports the results. Part III interprets the results. We conclude that gender differences in speaking are best understood as a function of social and academic context. Achieving gender parity in speaking requires reimagining the context of the classroom, not “fixing women.”

I. Previous Studies and Project Framework

We began our collaboration because of questions raised by two law students on our team: Why did it seem that their female classmates—highly accomplished and competent women—were less likely to speak in class than male students? To address this question, we first survey the existing literature in the field.

A. Prior Literature: Women May Speak Less, Depending on Context

Social scientists have documented that women are less likely to speak up in historically male-dominated spaces. For example, at academic conferences, female scholars are less likely to speak than male scholars, and when they do speak, they speak for shorter amounts of time.7.See, e.g.,Julia Schroeder et al., Fewer Invited Talks by Women in Evolutionary Biology Symposia, 26 J. Evolutionary Biology 2063, 2068 (2013) (finding that female scholars were more likely to decline invitations to a major biology conference); Lynda R. Wiest et al., Researcher Study Thyself: AERA Participants’ Speaking Times and Turns by Gender, 39 Equity & Excellence in Educ. 313, 319 (2006) (finding that when women do speak, they speak for less time than their male counterparts).Show More Female Supreme Court advocates speak less than their male counterparts.8.Dana Patton & Joseph L. Smith, Lawyer, Interrupted: Gender Bias in Oral Arguments at the US Supreme Court, 5 J.L. & Courts 337, 352 (2017).Show More A 2017 New York State Bar Association report found that women attorneys are less likely to have speaking roles “at every level and in every type of court: upstate and downstate, federal and state, trial and appellate, criminal and civil, ex parte applications and multi-party matters.”9.Debra Cassens Weiss, Only 25 percent of lead counsel roles in New York courts are held by women, study finds, ABA (Aug. 7, 2017, 7:00 AM), https://www.abajournal.com/‌news/article/only_25_percent_of_lead_counsel_roles_in_new_york_courts_are_held_by_women. [https://perma.cc/9N7N-DPN2].Show More

Just as social scientists have found that women speak less in male-dominated spaces, researchers have found that women speak less in the law school classroom. One of the earliest studies to investigate how gender affects the law school classroom documented the experiences of twenty women in the Yale Law Class of 1987, based on the premise that “men and women experience law school differently.”10 10.Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 Stan. L. Rev. 1299, 1300 (1988).Show More Soon thereafter, Professor Lani Guinier and her colleagues at the University of Pennsylvania published a groundbreaking book called Becoming Gentlemen. They found that women were much less likely to participate in classes that use the Socratic Method.11 11.Guinier et al., supra note 6, at 13–14.Show More Women also performed less well academically than did their male counterparts, despite entering law school with similar entry-level test scores.12 12.Id. at 8.Show More

More recently, law students have undertaken their own investigations of women’s experiences in law school in a series of reports known as Speak Up studies. The first of these was published in 2005 by Adam Neufeld, then a student at Harvard Law School, finding that women were less likely than men to speak in class.13 13.Neufeld, supranote 2, at 531. These results seem to have held over time. In 2013, The Harvard Crimson reported:Among the top students in their graduating classes, men and women entering Harvard Law School earn similar undergraduate grades and LSAT scores. But as soon as students step into Wasserstein Hall, a dramatic gender disparity emerges. Indicators suggest that female students participate less and perform worse than their male counterparts over the course of their three years at the Law School.Dev A. Patel, In HLS Classes, Women Fall Behind,Harv. Crimson (May 8, 2013), https://www.thecrimson.com/article/2013/5/8/law-school-gender-classroom/. [https://perma.cc/4UUJ-9DPV].Show More Similarly, in 2012, Yale Law Women, studying the experience of female law students at Yale, found that “[p]articipation by women students continues to lag behind their men colleagues,” and are likely to experience “feelings of isolation and alienation.”14 14.Yale L. Women, supra note 3, at 3, 13–14.Show More Similar investigations at other elite law schools show similar results.15 15.See, e.g.,Ho & Kelman, supranote 4, at 293; Balachandran et al., supra note 5, at 663, 680.Show More

While popular culture suggests that women speak less than men because they lack confidence,16 16.See, e.g., Sheryl Sandberg, Lean In: Women, Work, and the Will to Lead 8 (2013); Katty Kay & Claire Shipman, The Confidence Code: The Science and Art of Self-Assurance—What Women Should Know xviii (2014).Show More we believe that gender differences are best understood as a function of social context, not inherent gender differences. Sometimes, women behave differently than men because social norms constrain their freedom to participate.

Numerous studies have shown that, in some contexts, women pay a heavy price for speaking up. For example, female CEOs who speak for disproportionately longer amounts of time than other participants in meetings are rated as significantly less competent and less suitable for leadership than male CEOs who speak for the same amount of time.17 17.Victoria L. Brescoll, Who Takes the Floor and Why: Gender, Power and Volubility in Organizations, 56 Admin. Sci. Q. 622, 636 (2011).Show More In studies focused on negotiations, assertive, self-advocating women are shown to suffer social backlash because participants see them as socially unskilled and unlikeable. In contrast, male negotiators, exhibiting identical behaviors, face no negative consequences.18 18.Emily Amanatullah & Catherine Tinsley, Punishing Female Negotiators for Asserting Too Much…Or Not Enough: Exploring Why Advocacy Moderates Backlash Against Assertive Female Negotiators, 120 Org. Behav. & Hum. Decision Processes 110, 119 (2013).Show More

When social costs are eliminated, however, female behavior can change. For example, a different study assigned female negotiators the task of negotiating on behalf of another person, positing that negotiation on behalf of others is socially acceptable for women and does not carry the same threat of backlash. As predicted, the study found that “[w]hen these social costs are eliminated . . . women exhibit the same assertive behaviors and successful outcomes as men.”19 19.Emily Amanatullah & Michael Morris, Negotiating Gender Roles: Gender Differences in Assertive Negotiating Are Mediated by Women’s Fear of Backlash and Attenuated When Negotiating on Behalf of Others, 98 J. Personality & Soc. Psych. 256, 263 (2010).Show More We hypothesize that law school creates a particular context in which some women may not want to speak up and that this behavior can change if the context changes.

B. Understanding the Specific Context of the Law School Classroom

Many students’ law school experiences are affected by the signature pedagogy of legal education—the Socratic Method. While not every law school professor in the United States uses the Socratic Method, many do, particularly in required first-year courses. During this time, students are making sense of what it means to be a law student and learning how to behave in and out of a law school classroom.

The Socratic Method is a form of discussion meant to stimulate critical thinking by teaching students to answer (and ask) questions. It typically involves the professor asking questions that in theory help students discover better answers by systematically identifying and eliminating those that lead to contradictions. The goal is to teach students to “think like a lawyer” by being able to see all sides of an argument.

The Socratic Method can feel adversarial. Often, professors challenge students’ points of view to force them to justify their answer and to show how a rule that generates a just outcome in one situation may produce a problematic result in different circumstances. Professors also operate on a spectrum of predictability when using the Socratic Method, ranging from calling on students with no notice to providing advance notice that a student will be on call. Professors also vary in tone and in whether they will permit a student to decline to answer.

The Socratic Method is also inherently public, exposing students to the judgment of their peers. For many students of any gender, the experience can provoke intense feelings of anxiety.20 20.Cf. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 2 (2007).Show More Some students find themselves the topic of after-class discussion because of their answers during class. The studies described above conducted at Harvard, Yale, and the University of Pennsylvania specifically identify the Socratic Method as an important cause of gender differences in law students’ experiences.21 21.Neufeld, supra note 2, at 538, 562 (finding that the Socratic method “may amplify the effect of differences in confidence levels,” but also finding that the “combative” nature of this method did not alone cause gender differences); Yale L. Women, supra note 3, at 14; Guinier et al., supra note 6, at 15.Show More

For purposes of this paper, we define “Socratic” or “cold call” to mean any non-volunteered answer by a student to a professor’s question.22 22.We realize that students might experience a question for which they have advance notice or which is offered with a friendly tone (sometimes called a “warm call”) differently than a hostile question asked with no advance notice (a “cold call”). We intend to explore these effects in a subsequent paper. For purposes of this paper, we are focusing on the difference between voluntary and professor-controlled participation, and therefore use ‘cold call’ to include both warm and cold calls.Show More We hypothesize that gendered expectations in the classroom exacerbate the stress of the Socratic Method for women. Female law students must simultaneously exhibit the confidence and analytic competence the professor demands while also navigating the tricky gender norm of remaining likeable. We also hypothesize, however, that when a professor calls on students systematically, the practice can operate as an equalizing mechanism that reduces gender disparity in classroom participation.

C. Our Project Design

Our work builds in many ways on the Speak Up studies, which are important research efforts led by law students showing that women participate in class less than their male counterparts. As we designed our investigation, we sought to extend and deepen the work of the Speak Up studies.

In a typical Speak Up study, students observe law school classes in real time to document professor and student interactions. They attend a class to observe who is speaking and for how long. However, the presence of an observer may affect classroom participation, and coding in real time limits the amount of data that can be gathered.

The first part of our research (Study 1) also involved coding classes, but we obtained and transcribed archival audio recordings. Working from recordings and transcripts eliminated the risk that the researchers’ presence in the classroom could affect students’ and professors’ behavior. It also enabled us to code every utterance in more detail. For example, we were able to obtain information about whether a students’ answer was ‘on point’ or a digression and whether an answer projected confidence as indicated by a lack of verbal fillers. We also limited our sample to required first-year courses. For these courses, law school administrators assign students and professors to sections. Thus, we avoided any selection bias that might result from the freedom students have in elective courses to choose their professors and their classmates. Study 1 allowed us to document gender gaps and begin exploring the influence of context.

Prior studies have also relied on surveys in which students self-report their experiences. Because the surveys were typically not repeated, however, their results captured a moment in time and cannot provide insight into whether participants’ responses change over time. Speak Up student investigators graduate and move on, making it difficult for them to follow student participants throughout their entire law school experience. Also, many of the Speak Up studies frame survey questions that make their focus on gender explicit, thus potentially skewing the results.

Keeping these challenges in mind, in the second part of our project (Study 2), we conducted a longitudinal study in which students provided information about their law school experiences. This study followed four different graduating classes (including anyone in the class willing to participate), checking in with them at four significant points during their law school experiences—on the first day of orientation, after their first semester, before their second year, and shortly before graduation. We collected data from 928 law students, representing, on average, 75% of the students in each cohort. While a typical Speak Up study surveys students once, Study 2 followed four cohorts throughout their law school careers. This study design allowed us to examine whether and how gender gaps in speaking change across time. We also took care not to reveal to participants that gender was a focus of the research. Instead, we told them that the study sought their insights about the student experience at the University of Virginia School of Law.

The third part of our project (Study 3) asked third-year students in the class of 2021 more directly than we did in Study 2 about the social costs of speaking in class. These students began their law school careers with normal in-person classes. But the global COVID-19 pandemic forced them to pivot to entirely online classes midway through their second year. For their third year, they could choose between classes that took place entirely online or classes that included students participating both in person and online. Based on our observations in Study 2, we expected that we would see no gender difference among these students because they were at the end of their third years, but we wondered if the pandemic would change the context in ways that might reintroduce gender gaps. We framed this survey as an inquiry into how students’ experiences during the pandemic compared to their experiences in classes taken before the pandemic—again not signaling that gender was a focus of the project. Most importantly, this survey allowed us to examine specifically whether gender gaps in speaking are related to students’ social experiences, including potential social backlash for speaking.

We made the following predictions: Women would speak less, but this gender difference would be moderated by social context. As the context changes, women’s participation would also change. To characterize social context, we explored the Socratic Method and student attitudes toward the Socratic Method, class size, and student concerns about and experiences of social backlash. We also examined timing and considered whether gender differences in speaking are fixed or dynamic across time. All materials and data can be found at the OSF data repository.23 23.On the Importance of Social Context for Women’s Voices: Gender Differences in Law School Classroom Participation, OSF (last updated Jan. 5, 2022, 9:45 AM), https://osf.io/xat7p/?view_only=33dd7c17ade5437cbaf2a86d0f11752b. [https://perma.cc/78DM-GZ6P].Show More

II. Study Methodology and Results: Women and Men Have Different Experiences in Law School

In this Part, we describe the three studies we undertook to investigate women’s experiences in the law school classroom. Additional details about our study design, methodology, and results are reported in a more technical social science journal article reporting on our work.24 24.Sophie Trawalter, Molly Shadel & J.H. Verkerke, On the Importance of Social Context for Women’s Voices: Gender Differences in Law School Classroom Participation, 2(on file with authors at https://osf.io/937cg/?view_only=33dd7c17ade5437cbaf2a86d0f11752b). [https://perma.cc/2VXX-HDN3].Show More In Part III, we discuss the implications of our findings for law students and teachers.

Study 1: Archival Study

In Study 1, we documented students’ speaking in law school classrooms. We predicted that, as in previous studies, women would speak less than men. In addition, we explored whether women were more uncertain and nervous when speaking.

We obtained permission to transcribe and code audio recordings of 107 class sessions of required first-year courses from a single academic year. Of these, 74% were taught by male faculty and 90% were taught by white faculty. Notably, 86% of the classes included some version of the Socratic Method. Many of these classes also allowed students to volunteer comments. Classes were transcribed by at least one research assistant,25 25.Id. at 11 n.1. Hereinafter abbreviated as “RA.” Five classes were transcribed by five RAs, to train RAs on transcription, and one class was inadvertently transcribed twice. All other classes were transcribed by one RA.Show More and each utterance in each class was coded by at least two RAs, a primary coder and a secondary coder.26 26.Id. at 11 n.2. “Five classes were coded by five RAs, to train RAs on coding, and one class was inadvertently coded by only one RA.”Show More The resulting dataset included 14,403 distinct utterances (8,402 from faculty and 6,001 from students) across 107 classes.

RAs coded the transcripts on various dimensions including: (1) whether each utterance was by the professor or a student, (2) whether the utterance was made by a man or woman, (3) whether the utterance was an interruption, (4) whether the utterance was qualified, (5) whether the utterance was “on point,” (6) and the nature of the utterance. Inter-rater agreement was quite high across all categories.27 27.Id. at 12.Show More

Our analytic approach was as follows: first, we ran class-level analyses to document gaps in speaking and the role of context on speaking. On average, the cohorts included 45% women and 55% men.28 28.See id. at 44. The Law School website published this enrollment information and did not report any students identifying as gender non-binary. In Studies 2 and 3, students were able to identify as gender non-binary, though no study participants selected that option.Show More Men spoke disproportionally more often than women (62% men to 38% women).

Next, we examined speaking length. We found, again, that women spoke less often than men. On average, male students who talked in class talked for 302 seconds whereas female students who talked in class talked for only 194 seconds. Taken together, these findings replicate the results of previous work, including several Speak Up studies.

Because we have data at the utterance level, we also examined additional characteristics of student utterances. RAs coded whether students were “on point” (exhibiting a correct understanding of the material) when they spoke. RAs also coded two additional behaviors: verbal fillers and qualifiers. Fillers are utterances like “um,” “uh,” and “er.” People use fillers when they need more time to think, when they are unsure about what to say, and often, when they are nervous about speaking.29 29.See Herbert H. Clark & Jean E. Fox Tree, Using Uh and Um in Spontaneous Speaking, 84 Cognition 73, 90–91 (2002).Show More Qualifiers are expressions of uncertainty (“I think the author means…” “perhaps the case reveals”). They weaken the judgment or statement made, often without adding information (“Their position is kind of strong”). People use qualifiers to convey tentativeness and often use qualifiers when anxious.30 30.See Mansur Lalljee, & Mark Cook, Anxiety and Ritualized Speech, 66 Brit. J. Psych. 299, 300 (1975).Show More Students’ use of verbal fillers and qualifiers offers a window into whether they were uncertain and nervous about speaking. Interestingly, we found that by these metrics, female and male students sound quite similar. We found no gender differences for qualified utterances, verbal fillers, or utterances that were on point.

Next, we considered the role of context in shaping gender gaps in classroom participation. Specifically, we considered whether utterances were in response to a cold call or volunteered. For volunteered answers, we observed a large and significant gender difference with men volunteering disproportionately more than women. In Figure 1 below, the distribution of men’s participation reveals a strong central tendency for men to volunteer more often than women.

Figure 1: Proportion of Volunteered Answers from Men

For cold calls, we observed a radically different pattern. Men also answered disproportionately more cold calls, but this difference was not statistically significant. The distribution of men’s participation in Figure 2 shows why. Unlike the distribution of volunteered answers, the distribution of answers to cold calls had three peaks. In some classes, men answered all the cold calls, and in others, women answered all the cold calls. This is likely because these professors called on few students in each class session. In other classes, both men and women spoke, but cold calling disrupted the central tendency we saw in volunteered answers. This practice changed the context by creating more variance in speaking opportunities. Thus, it appears that a systematic plan for calling on students can increase gender parity in speaking turns by decreasing opportunities for men to volunteer.

Figure 2: Proportion of Cold Calls Answered by Men

Next, we examined how women (vs. men) experience cold calls (vs. volunteering). Specifically, we examined the number of fillers students used, whether they used qualifiers, and whether their utterance was “on point.” Regardless of gender, students answering a cold call (vs. volunteering) used more fillers and qualifiers, suggesting they felt less confident about their answers to a cold call. Results also revealed that students were more likely to be on point in response to a cold call (vs. volunteering), and again this effect was not qualified by gender.

Considering class size, we found gender differences in the tendency to speak in smaller and larger classes. Women speak more often in small classes relative to larger classes, and men speak more often in larger classes relative to small classes.31 31.See Trawalter, Shadel & Verkerke, supra note 24, at 15 n.4. We define small classes as those containing roughly 30 students, medium classes as those containing roughly 60 students, and large classes as those containing roughly 90 students.Show More We observe gender parity in the proportion of utterances in small classes, while men speak more than expected in medium-sized and larger classes.32 32.For a similar finding at Stanford Law School, see Ho & Kelman, supra note 4, at 310 (documenting the impact class size can have on GPA across genders).Show More (See Figure 3.)

Figure 3: Utterances by Student Gender and Class Size

Study 2: Longitudinal Study

In Study 2, instead of inferring student experiences from their classroom behavior, we asked students directly about their attitudes towards speaking in class and the Socratic Method. We predicted that women would report speaking less in class than men. We also explored how speaking is related to students’ experience with the Socratic Method and with the social context of classrooms. We hypothesized that professors’ and peers’ judgments would influence students’ decisions about speaking in class.

We collected survey data from 928 law students across four graduating classes representing, on average, 75% of the students in each cohort. Students were invited to take our survey at four time points: at orientation (Time 1), after their first semester (Time 2), before their second year (Time 3), and shortly before graduating (Time 4).33 33.See Trawalter, Shadel & Verkerke, supra note 24, at 38 for descriptive statistics at each time point and attrition checks.Show More

Participants answered closed-ended questions, including questions about speaking in class and the Socratic Method. They also answered open-ended questions about their classroom experience and law school more generally. Open-ended questions were analyzed using text analysis software and human coding.

We examined speaking in class, reasons for not speaking in class, impressions of the Socratic Method, and sense of belonging. Students’ answers to the open-ended questions were hand-coded for mentions of liking or disliking the Socratic Method, seminars, small classes, large classes, experiential/clinical/practical skills classes, lectures, and cold calls. The responses were also coded for mentions of particular issues that appeared frequently across responses, including not having a job, the single-exam grading system, the forced curve, reading load, the cost of law school, and various issues related to the culture of the school.

Results revealed that, on average, women reported speaking less than did men. This result replicates the findings of previous studies at other institutions. Importantly, however, these gender differences varied across time. Our analyses showed that, at Time 1, during orientation, women anticipated speaking just as much as men. And at Time 4, when they neared graduation, they reported speaking up as much as men. But, at Times 2 and 3 (after the first and second semesters respectively of students’ first year), women reported speaking less than did men.

Figure 4: Self-Reported Speaking in Class by Gender anxd Time

Notably, male and female students reported different reasons for not speaking. Compared with women, men were more likely to report a lack of “interest in the subject matter under discussion” as their reason for not speaking. In contrast, women were more likely to report concerns about “classmates’ responses to your statements,” concerns “about how classmates will judge you,” “classroom size,” and “personality of the professor (e.g. supportive vs. challenging).”

We also created an index to measure students’ perceptions of the Socratic Method. Compared with men, women’s perceptions were less positive at all time points. (See Figure 5.) We observed that students’ feelings toward the Socratic Method predicted speaking in class. Students who disliked the Socratic Method more spoke less in class.

Figure 5: Feelings Toward the Socratic Method by Gender and Time

For sense of belonging, we observed a similar pattern. Women and men reported comparable levels of belonging at Time 1. At Time 2, men reported marginally greater belonging, and at Time 3, significantly greater belonging. But by Time 4, that gender gap disappeared; women and men again reported comparable levels of belonging. (See Figure 6.) Moreover, students who reported greater belonging also reported more speaking in class.

Figure 6: Sense of Belonging by Gender and Time

Textual analyses of students’ responses to open-ended survey questions using Linguistic Inquiry and Word Count (“LIWC”) revealed that, on average, women’s statements revealed more anxiety than men’s responses. In addition, women were more likely to mention the Socratic Method and cold calls. They were also more likely to mention disliking the single exam system and experiencing a negative student culture. Mentions of these classroom conditions were correlated with anxious language in students’ open-ended comments. Although these are comparatively small correlations, it is notable that our open-ended questions did not ask about the Socratic Method or gender. And these patterns also mirror results from the closed-ended data analyses.

Students’ writing also revealed what kind of learning environment they prefer. Male students mentioned liking the Socratic Method more than they mentioned liking small classes or experiential classes/seminars. In contrast, female students mentioned liking seminars more than they mentioned liking the Socratic Method.

Study 3: Survey Study

As we wrote up the results of Studies 1 and 2, the global pandemic of 2020 began, dramatically altering the classroom experience for all law students. During the 2020-2021 school year, some UVA students attended class online, while others participated in-person, masked, and physically distanced. This was a time of intense isolation for many students.

In Study 3, we asked third-year students from the class of 2021 about their classroom experiences in the context of the pandemic. We also asked explicitly about the social costs of speaking in class (which we had not asked directly during Study 2). We surveyed the class of 2021 only once, during the final month of their third year of law school. We framed this final study as an inquiry about students’ experiences during the pandemic, again not signaling that gender differences were a focus of the project.

We collected survey data from 164 third-year law students from the class of 2021, which represents 51% of the class. Of these participants, 54% were female, 77% white, with an average age of 26.4. This sample, unlike our Study 2 sample, was majority female.

The timing of this study corresponds to Time 4 of Study 2—surveying third-year students near the end of their time in law school. The pandemic disproportionally affected women in many contexts,34 34.See Emily Lim, Covid-19 Brief: Impact on Women and Girls, U.S. Global Leadership Coalition, (last updated Aug. 30, 2021), https://www.usglc.org/coronavirus/women-and-girls/. [https://perma.cc/2MGQ-LLB6].Show More leading us to wonder whether it also might make it more difficult to participate in class. But our data indicate that, consistent with Study 2, men and women reported speaking in equal measures during their third year, even in the midst of a pandemic. Interestingly, men reported speaking slightly more pre‑pandemic; in other words, participation by men fell during the pandemic. (See Figure 7.)

Figure 7: Speaking by Gender and Time

We also inquired about students’ perceptions of the Socratic Method. Replicating Study 2, women reported disliking the Socratic Method significantly more than did men. Also replicating Study 2, perceptions of the Socratic Method predicted speaking pre-pandemic, such that those who reported disliking the Socratic Method more reported speaking less.

This relationship, however, did not hold during the pandemic. Attitudes towards the Socratic Method predicted gender differences in speaking pre‑pandemic but not during the pandemic. These findings suggest yet another way context appears to shape students’ experiences. Here, we find that the pandemic context—likely due to features of the online environment—changed students’ relationship with the Socratic Method and reduced its gendered impacts. We suspect that professors were less able to use traditional Socratic questioning during the pandemic. Some upper-level classes shifted to recorded lectures and an asynchronous teaching mode, and many adopted a gentler version of asking and answering questions.

Our primary goal in Study 3, however, was to investigate the potential social backlash associated with speaking in class. Women and men reported similar levels of backlash35 35.See Trawalter, Shadel & Verkerke, supra note 24, at 29–30. We did not define backlash in our survey instrument. Based on open-ended responses in both Studies 2 and 3, students conceive of backlash as a kind of social penalty, including unkind comments or loss of social status.Show More against students who talk in class. Women reported more backlash against women than men, and men reported marginally more backlash against men than women. Notably, women reported more backlash against women than men reported against men. In other words, consistent with predictions, the highest levels of backlash were reported by women and against women.

Figure 8: Self-Reported Backlash for Speaking in Class by Gender

III. General Discussion

Just as the “Speak Up” studies found, we too observe that women speak less than men in the law school classroom. However, this effect is not fixed, but dynamic. Based on our data, we conclude the following.

In general, men speak more than women in law school classes. Women spoke less than men in the classes included in Study 1. Men made up 55% of the cohort but were speaking 62% of the time, while women spoke 38% of the time. Men spoke on average for 302 seconds, while women spoke for 194 seconds. These results closely mirror previous Speak Up studies.

Gender gaps in participation are not inevitable. It is significant that in Study 2, observing students at four different points during their legal education, men and women look largely identical at orientation (Time 1). During the orientation survey, in all four cohorts, men and women report equal levels of belonging and are equally optimistic about how much they will be willing to speak in class. Similarly, just before graduation (Time 4), women and men report speaking in class to the same extent and report equal levels of belonging. The gaps in both participation and belonging appear at Times 2 and 3, during the first year of law school. While these differences are self-reported, they mirror the gaps in participation we document in Study 1.

Gender gaps in participation are more likely to appear when students volunteer or when classes are large. A systematic plan for calling on students or recognizing volunteers can increase gender parity, as can smaller class size. We found in Study 1 that men speak more than women, but this effect was driven largely by volunteered answers, not cold calls. In fact, in our data, a systematic plan for participation seems to close gender gaps by preventing volunteering students from dominating class discussion. We also find that women speak less than men in large classes, but not in smaller classes. When answering cold calls or when speaking in smaller classes, women speak just as much as men. In other words, gender gaps in speaking are dynamic, not fixed. They are not inherent to gender but responsive to context.

Social context drives women’s willingness to speak. Our data point to the social context—specifically the social costs of speaking—as the principal explanation for why women speak less under some conditions but not others. In Study 2, at Times 2 and 3 (after the first and second semesters of law school), women report less willingness to speak in class than their male counterparts. They are more likely to report concerns about backlash (“concern about how classmates will judge you” and “classmates’ responses to your statements”) as reasons for not speaking. (In contrast, men were more likely to report a lack of “interest in the subject matter under discussion” as the reason for not speaking.) When considering whether to volunteer an answer, women are weighing how what they say might be perceived, and what it means to have taken up class time with their thoughts. In Study 3, when we explicitly asked about social backlash, both women and men reported that students who speak in class experience backlash. Notably, the highest levels of backlash were reported by women and against women. Students who report backlash against women were also less likely to speak in class.

Women’s responses to open-ended questions in Study 2 also reveal more anxiety than men’s. They are more likely to mention the Socratic Method, cold calls, the single exam system, and a negative culture as reasons for anxiety around speaking. Women also mention liking seminars more than liking the Socratic Method.

The Socratic Method closes gender gaps but is disliked more by women than by men. Study 1 results suggest the systematic cold calling of the Socratic Method can promote gender parity in speaking. But Study 2 data suggest that women do not like the Socratic Method and like it significantly less than men do, across all time points. We think this may be because the Socratic Method triggers greater perceived costs for women. Our data suggest that negative feelings toward the Socratic Method are tied to social backlash and specifically to backlash against women. Students who reported disliking the Socratic Method were also more likely to report that students who speak in class are subject to backlash, and women reported more negative feelings and more backlash, on average.

Social context can be changed. We believe it is significant that, as they approach graduation (Time 4), the women in both Studies 2 and 3 are just as likely as the men to report that they speak in class. They continue to report anxiety about the social and academic context (as evidenced by how they describe the culture and their experiences of the Socratic Method). But they are just as likely as the men to report that they speak in class, despite these negative responses.

Women and men are equally capable of answering questions in law school. In Study 1, in which we analyzed audio recordings of class sessions, we observe similar performance by men and women. Both men and women in these recordings seem to respond adeptly to the Socratic Method. Their answers are equally on point. Both men and women are more likely to use verbal fillers and qualify their answers when answering a Socratic question than when they volunteer. These findings suggest that women and men perform equally well in response to Socratic questioning. They suggest that men and women experience cold calls similarly, at least in terms of their ability to perform—they are equally anxious, and equally on point. As such, our data are not consistent with the notion that women do not speak up because they are less capable, or even less confident. When asked to speak, they appear to be as confident and on point as their male peers.

Implications for Theory. The present findings contribute to the existing literature on gender and confidence, and the so-called confidence gap.36 36.See, e.g.,Kay & Shipman, supra note 16, at xviii; Sandberg, supra note 16, at 8.Show More Many believe that women do not speak up because they are less confident than men. Our data add to a growing literature suggesting otherwise.37 37.See, e.g., Amanatullah, supranote 19, at 256; Hannah Riley Bowles, Linda Babcock & Lei Lai, Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes it Does Hurt to Ask, 103 Org. Behav. & Hum. Decision Processes 84, 84 (2007); Andreas Leibbrandt & John A. List, Do Women Avoid Salary Negotiations? Evidence from a Large-Scale Natural Field Experiment, 61 Mgmt Sci. 2016, 2016 (2015).Show More Our findings suggest gender gaps in participation in the law school classroom are a function of context: the use of the Socratic Method, classroom size, and concerns about peer evaluation and social backlash.

Implications for Practice. Law schools can help to shift the context to promote gender equity in class participation.38 38.See Sullivan, supranote 20, at 2 (discussing the anxiety fostered by the Socratic method). As we discussed supra note 11 and supra note 15, these kinds of anxiety-inducing environments can have the effect of favoring men in large classroom discussions. We offer these suggestions tentatively, as we have not designed a study to measure their effects in the classroom. However, we believe they are suggested by our results. We plan to further develop these suggestions in future work.Show More For example, our data show that systematic cold calling can close participation gaps. This system need not involve the Socratic method. For example, students could be asked to lead class discussion, make presentations, and provide feedback to other students according to a preassigned schedule.

Our results also show that, left unchecked, volunteering may produce participation gaps. Faculty can help close this gap by being mindful of whom they call on when students volunteer answers. A professor might consider declaring equal participation among all students a goal of the class so that the class is not dominated by a handful of voices. A professor could limit how often students are allowed to volunteer or place a panel of students “on call” for the week, only allowing those students to volunteer during that time period. Previous work suggests that eliminating social costs changes the behavior of women.39 39.See Amanatullah, supra note 19, at 256.Show More Consequently, we hypothesize that telling students that it is “their job” to volunteer in class during a particular week might result in greater participation by those women. This practice would also shut down opportunities for those not on call to dominate discussion.

Our survey responses also show that many students, both women and men, are made anxious by the Socratic Method. Professors can alleviate this anxiety by giving students advance notice of when they will be speaking and by approaching the colloquy with kindness. They might give students the opportunity to practice their answers by discussing a topic in small groups before sharing those ideas with the class. For discussions of sensitive topics—such as rape or racial discrimination—professors may offer students the option to listen without speaking. Or they might eschew the Socratic Method altogether.

Students improve their ability to articulate their ideas aloud the more practice they have doing so. Calling on a student only once (or twice) during a semester-long class does not offer that student an opportunity to improve and bears very little resemblance to any task the student will encounter as a practicing lawyer. Very infrequent cold calls also raise the stakes and increase the distress students experience when they believe they have not performed well. Law professors who offer students the opportunity to speak more frequently give those students an opportunity to practice and ultimately to succeed. When each student speaks more often, a single “bad” answer becomes simply one of many experiences along the road to mastery. Our data also suggest that smaller classes promote gender parity in participation. Thus, law schools that offer smaller classes will enable more voices to be heard.

Finally, professors who are mindful that students are concerned about social backlash can help lessen that burden. They can alter the social context by stating that all students are practicing the art of listening, articulating their ideas aloud, and responding professionally to one another.40 40.See, e.g., Yale L. Women, supranote 3, at 21; see also Guinier, supra note 6, at 4.Show More A professor might invite students to think of each class as a collaboration, in which they are working together to master the essential skills of thinking and speaking like a lawyer. The classroom offers an important opportunity to practice the respectful professional relationships they hope to have in the future.

Conclusion

Despite the gains women have made in the field of law, for a variety of reasons they continue to be underrepresented in leadership positions in the profession.41 41.For example, in 2017, only 19% of equity partners at law firms were women. See Marc Brodherson, Laura McGee, & Mariana Pires dos Reis, Women in Law Firms, McKinsey & Co.,3 (Oct. 2017), https://www.mckinsey.com/~/media/mckinsey /featured%20‌insights/gender%20equality/women%20in%20law%20firms/women-in-law-firms-final-103017.pdf. [https://perma.cc/737K-Y8BP].Show More Gender differences persist throughout the legal world, including on the judicial bench,42 42.Only about 1/3 of federal judges are female. See U.S. Courts, Women’s History Month, (Jan. 20, 2022), https://www.uscourts.gov/about-federal-courts/educational-resources/annual-observances/womens-history-month. [https://perma.cc/UV4L-RLUS].Show More in legal academia,43 43.Roughly 25% of tenured law school faculty are female. See Am. Bar Found., After Tenure: Post-Tenure Law Professors in the United States, 15, http://www.americanbar foundation.org/uploads/cms/documents/after_tenure_report-_final-_abf_4.1.pdf.Show More and even in the amount of time that women speak in court.44 44.Patton & Smith, supra note 8, at 337.Show More We believe that speaking differences we observe in the law school classroom may contribute to later disparities. Thus, law schools are uniquely positioned to counter these inequities.

The underrepresentation of women in the legal profession is not just an issue of fairness or equity. Lawyers in America play an influential part in government, politics, business, and society. The laws that we make, the populations that we serve, the way that we think about the law, and the way that we use the law are indelibly shaped by the lawyers themselves. Making sure that all students that graduate from law school—women and men—are armed with the experiences that they need to succeed makes it more likely that our female graduates will reach for leadership roles. But our data and the Speak Up studies reveal a systemic problem—men are dominating the conversation. This difference can have consequences for these women, both for their learning and for their willingness to speak up in the future. It also has consequences for other students in the classroom, who miss out on the benefit of hearing diverse voices, and for society at large, if these female voices are unheard in the legal profession. Our work shows how women may be affected by a context that impedes their willingness to speak in class. These effects in turn may hamper their ability to practice raising their voices and collaborating. We hope that our investigation contributes to the ongoing conversation about how law schools and faculty might respond to create a more equitable classroom.

  1. * Molly Bishop Shadel is a Professor Law, General Faculty, at the University of Virginia School of Law. Sophie Trawalter is an Associate Professor of Public Policy and Psychology at the Frank Batten School of Leadership and Public Policy at the University of Virginia. J.H. Verkerke is the T. Munford Boyd Professor of Law at the University of Virginia School of Law. We are grateful to an incredible team of research assistants for their work on the archival study, including Katrina Moberg and Danit Carrier Tal, whose perceptive questions triggered this investigation; Sedi Asem, Pete Chattrabhuti, Patrick Greco, Jonathan Guest, Hyunji Lee, and Halima Nguyen, who worked tirelessly during law school on this project; and undergraduates Derek Zeigler, Clair Jones, Danika Brackett, Katharine Friel, Nikki Kaul, Anthony K. Onuoha, and Chul (Caden) Park. We also thank Jonathan Ashley, Alexander Jakubow, and the UVA Legal Datalab for helping with our data analysis, and Barbara Spellman, John Monahan, Kimberly Robinson, Kim Forde-Mazrui, Naomi Cahn, Anne Coughlin, Kimberly Krawiec, Mitu Gulati, and participants at a UVA Law School faculty workshop for helpful conversations and feedback.
  2. While these studies carry different names (including “Speak Up” and “Speak Now”), we call them Speak Up studies throughout this paper.
  3. Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 J. Gender, Soc. Pol’y & L. 511, 561–62 (2005) (“The study results show systemic differences between female and male students’ experiences at Harvard Law School in areas ranging from classroom participation and self-confidence to grades and employment.”).
  4. Yale L. Women, Yale Law School Faculty and Students: Speak Up about Gender: Ten Years Later 13–14 (2012).
  5. Daniel E. Ho & Mark G. Kelman, Does Class Size Affect the Gender Gap? A Natural Experiment in Law, 43 J. Legal Stud. 291, 293 (2014).
  6. Mallika Balachandran, Roisin Duffy-Gideon & Hannah Gelbort, Speak Now: Results of a One-Year Study of Women’s Experiences at the University of Chicago Law School, 2019 U. Chi. Legal F. 647, 647–48 (2019).
  7. Lani Guinier, Michelle Fine & Jane Balin, Becoming Gentlemen: Women, Law School, and Institutional Change 1–2 (1997).
  8. See, e.g., Julia Schroeder et al., Fewer Invited Talks by Women in Evolutionary Biology Symposia, 26 J. Evolutionary Biology 2063, 2068 (2013) (finding that female scholars were more likely to decline invitations to a major biology conference); Lynda R. Wiest et al., Researcher Study Thyself: AERA Participants’ Speaking Times and Turns by Gender, 39 Equity & Excellence in Educ. 313, 319 (2006) (finding that when women do speak, they speak for less time than their male counterparts).
  9. Dana Patton & Joseph L. Smith, Lawyer, Interrupted: Gender Bias in Oral Arguments at the US Supreme Court, 5 J.L. & Courts 337, 352 (2017).
  10. Debra Cassens Weiss, Only 25 percent of lead counsel roles in New York courts are held by women, study finds, ABA (Aug. 7, 2017, 7:00 AM), https://www.abajournal.com/‌news/article/only_25_percent_of_lead_counsel_roles_in_new_york_courts_are_held_by_women. [https://perma.cc/9N7N-DPN2].
  11. Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 Stan. L. Rev
    .

    1299, 1300 (1988).

  12. Guinier et al., supra note 6, at 13–14.
  13. Id. at 8.
  14. Neufeld, supra note 2, at 531. These results seem to have held over time. In 2013, The Harvard Crimson reported:Among the top students in their graduating classes, men and women entering Harvard Law School earn similar undergraduate grades and LSAT scores. But as soon as students step into Wasserstein Hall, a dramatic gender disparity emerges. Indicators suggest that female students participate less and perform worse than their male counterparts over the course of their three years at the Law School.

    Dev A. Patel, In HLS Classes, Women Fall Behind, Harv. Crimson (May 8, 2013), https://www.thecrimson.com/article/2013/5/8/law-school-gender-classroom/. [https://perma.cc/4UUJ-9DPV].

  15. Yale L. Women, supra note 3, at 3, 13–14.
  16. See, e.g., Ho & Kelman, supra note 4, at 293; Balachandran et al., supra note 5, at 663, 680.
  17. See, e.g., Sheryl Sandberg, Lean In: Women, Work, and the Will to Lead 8 (2013); Katty Kay & Claire Shipman, The Confidence Code: The Science and Art of Self-Assurance—What Women Should Know xviii (2014).
  18. Victoria L. Brescoll, Who Takes the Floor and Why: Gender, Power and Volubility in Organizations, 56 Admin. Sci. Q. 622, 636 (2011).
  19. Emily Amanatullah & Catherine Tinsley, Punishing Female Negotiators for Asserting Too Much…Or Not Enough: Exploring Why Advocacy Moderates Backlash Against Assertive Female Negotiators, 120 Org. Behav. & Hum. Decision Processes 110, 119 (2013).
  20. Emily Amanatullah & Michael Morris, Negotiating Gender Roles: Gender Differences in Assertive Negotiating Are Mediated by Women’s Fear of Backlash and Attenuated When Negotiating on Behalf of Others, 98 J. Personality & Soc. Psych. 256, 263 (2010).
  21. Cf. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 2 (2007).

  22. Neufeld, supra note 2, at 538, 562 (finding that the Socratic method “may amplify the effect of differences in confidence levels,” but also finding that the “combative” nature of this method did not alone cause gender differences); Yale L. Women, supra note 3, at 14; Guinier et al., supra note 6, at 15.
  23. We realize that students might experience a question for which they have advance notice or which is offered with a friendly tone (sometimes called a “warm call”) differently than a hostile question asked with no advance notice (a “cold call”). We intend to explore these effects in a subsequent paper. For purposes of this paper, we are focusing on the difference between voluntary and professor-controlled participation, and therefore use ‘cold call’ to include both warm and cold calls.
  24. On the Importance of Social Context for Women’s Voices: Gender Differences in Law School Classroom Participation, OSF (last updated Jan. 5, 2022, 9:45 AM), https://osf.io/xat7p/?view_only=33dd7c17ade5437cbaf2a86d0f11752b. [https://perma.cc/78DM-GZ6P].
  25. Sophie Trawalter, Molly Shadel & J.H. Verkerke, On the Importance of Social Context for Women’s Voices: Gender Differences in Law School Classroom Participation, 2 (on file with authors at https://osf.io/937cg/?view_only=33dd7c17ade5437cbaf2a86d0f11752b). [https://perma.cc/2VXX-HDN3].
  26. Id. at 11 n.1. Hereinafter abbreviated as “RA.” Five classes were transcribed by five RAs, to train RAs on transcription, and one class was inadvertently transcribed twice. All other classes were transcribed by one RA.
  27. Id. at 11 n.2. “Five classes were coded by five RAs, to train RAs on coding, and one class was inadvertently coded by only one RA.”
  28. Id. at 12.
  29. See id. at 44. The Law School website published this enrollment information and did not report any students identifying as gender non-binary. In Studies 2 and 3, students were able to identify as gender non-binary, though no study participants selected that option.
  30. See Herbert H. Clark & Jean E. Fox Tree, Using Uh and Um in Spontaneous Speaking, 84 Cognition 73, 90–91 (2002).
  31. See Mansur Lalljee, & Mark Cook, Anxiety and Ritualized Speech, 66 Brit. J. Psych. 299, 300 (1975).
  32. See Trawalter, Shadel & Verkerke, supra note 24, at 15 n.4. We define small classes as those containing roughly 30 students, medium classes as those containing roughly 60 students, and large classes as those containing roughly 90 students.
  33. For a similar finding at Stanford Law School, see Ho & Kelman, supra note 4, at 310 (documenting the impact class size can have on GPA across genders).
  34. See Trawalter, Shadel & Verkerke, supra note 24, at 38 for descriptive statistics at each time point and attrition checks.
  35. See Emily Lim, Covid-19 Brief: Impact on Women and Girls, U.S. Global Leadership Coalition, (last updated Aug. 30, 2021), https://www.usglc.org/coronavirus/women-and-girls/. [https://perma.cc/2MGQ-LLB6].
  36. See Trawalter, Shadel & Verkerke, supra note 24, at 29–30. We did not define backlash in our survey instrument. Based on open-ended responses in both Studies 2 and 3, students conceive of backlash as a kind of social penalty, including unkind comments or loss of social status.
  37. See, e.g., Kay & Shipman, supra note 16, at xviii; Sandberg, supra note 16, at 8.
  38. See, e.g., Amanatullah, supra note 19, at 256; Hannah Riley Bowles, Linda Babcock & Lei Lai, Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes it Does Hurt to Ask, 103 Org. Behav. & Hum. Decision Processes 84, 84 (2007); Andreas Leibbrandt & John A. List, Do Women Avoid Salary Negotiations? Evidence from a Large-Scale Natural Field Experiment, 61 Mgmt Sci. 2016, 2016 (2015).
  39. See Sullivan, supra note 20, at 2 (discussing the anxiety fostered by the Socratic method). As we discussed supra note 11 and supra note 15, these kinds of anxiety-inducing environments can have the effect of favoring men in large classroom discussions. We offer these suggestions tentatively, as we have not designed a study to measure their effects in the classroom. However, we believe they are suggested by our results. We plan to further develop these suggestions in future work.
  40. See Amanatullah, supra note 19, at 256.
  41. See, e.g., Yale L. Women, supra note 3, at 21; see also Guinier, supra note 6, at 4.
  42. For example, in 2017, only 19% of equity partners at law firms were women. See Marc Brodherson, Laura McGee, & Mariana Pires dos Reis, Women in Law Firms, McKinsey & Co., 3 (Oct. 2017), https://www.mckinsey.com/~/media/mckinsey /featured%20‌insights/gender%20equality/women%20in%20law%20firms/women-in-law-firms-final-103017.pdf. [https://perma.cc/737K-Y8BP].
  43. Only about 1/3 of federal judges are female. See U.S. Courts, Women’s History Month, (Jan. 20, 2022), https://www.uscourts.gov/about-federal-courts/educational-resources/annual-observances/womens-history-month. [https://perma.cc/UV4L-RLUS].
  44. Roughly 25% of tenured law school faculty are female. See Am. Bar Found., After Tenure: Post-Tenure Law Professors in the United States, 15, http://www.americanbar foundation.org/uploads/cms/documents/after_tenure_report-_final-_abf_4.1.pdf.
  45. Patton & Smith, supra note 8, at 337.