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Identical, Not Fraternal Twins: RLUIPA, RFRA, and Damages

The federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and Religious Freedom Restoration Act (“RFRA”) are commonly labeled “twin” or “sister” statutes. Both reinstall a strict scrutiny regime for religious accommodations, and they use identical remedial language to do so, providing for “appropriate relief against a government.” In 2020’s Tanzin v. Tanvir, the Supreme Court interpreted RFRA’s remedial provision to allow for personal capacity damages suits against government officials. By that time, however, ten federal courts of appeals had reached the opposite conclusion regarding that same remedial text within RLUIPA. Post-Tanzin, no circuit has changed course. Instead, they hold fast to two objections grounded in RLUIPA’s Spending Clause underpinnings: (1) RLUIPA has not provided “clear notice” of potential liability, which is required for a party to be liable for damages; and (2) because government officials are non-recipients of federal funds, they cannot be held personally liable.

This Note argues that these circuits have misapplied Spending Clause jurisprudence. Background presumptions, text, context, and precedent all make clear that damages suits against individuals are on the table. And the Supreme Court has repeatedly held funding non-recipients monetarily liable for violation of Spending Clause statutes, creating a line of precedent at odds with the circuits’ divined rule. This Note also illustrates the injustice that these erroneous damages bars have worked upon the one million-plus incarcerated persons in state and local institutions whose rights under RLUIPA often lack a remedy.

Introduction

In his civil complaint filed in the U.S. District Court for the Middle District of Louisiana, Damon Landor alleged that Louisiana prison officials at the Raymond Laborde Correctional Center (“RLCC”) forcibly shaved his head upon transfer to the facility.1 1.Complaint & Jury Demand ¶ 37, Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085 (M.D. La. Sept. 29, 2022), aff’d, 82 F.4th 337 (5th Cir. 2023), cert. granted,145 S. Ct. 2814 (2025).Show More Landor, a devout Rastafarian, had been growing his dreadlocks for twenty years in compliance with the Nazarite vow not to cut one’s hair.2 2.Id.¶¶ 21–24.Show More Precedent in the U.S. Court of Appeals for the Fifth Circuit squarely forbade the officials’ conduct as a violation of Landor’s rights under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”).3 3.See Ware v. La. Dep’t of Corr., 866 F.3d 263, 274 (5th Cir. 2017) (holding that a Louisiana Department of Corrections grooming policy, which prohibited inmates from having dreadlocks, was an unjustified substantial burden on Rastafarian inmates’ faith under RLUIPA).Show More Landor, in an abundance of caution, had brought with him to RLCC a physical copy of the opinion that established Rastafarian incarcerated persons’ right to grow their hair.4 4.Complaint & Jury Demand, supra note 1, ¶ 33.Show More RLCC’s intake officer, unpersuaded by binding federal law, tossed the opinion in the garbage.5 5.Id ¶ 34.Show More The warden arrived and demanded the religious documentation provided by Landor’s sentencing judge.6 6.Id.¶¶ 34–35.Show More Landor offered to request the documents from his attorney.7 7.Id.¶ 36.Show More “Too late for that,” the warden responded, before having Landor cuffed to a chair.8 8.Id ¶ 37.Show More

Despite its egregious facts, Landor’s complaint was summarily dismissed by the district court judge.9 9.Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085, at *3 (M.D. La. Sept. 29, 2022).Show More A Fifth Circuit panel reviewing the case on appeal “emphatically condemn[ed]” Landor’s treatment.10 10.Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023).Show More Nevertheless, the panel unanimously affirmed the dismissal.11 11.Id.Show More While a prima facie violation of RLUIPA had been alleged, no remedy was available to redress the injury suffered. Injunctive and declaratory relief were off the table since Landor was no longer incarcerated.12 12.See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (concluding that an incarcerated individual’s suit for equitable relief under RLUIPA is mooted once they leave the injurious facility).Show More The Supreme Court has held that RLUIPA claims against state officials in their official capacity—which are tantamount to claims against the state itself—are barred by state sovereign immunity.13 13.See Sossamon v. Texas (Sossamon II), 563 U.S. 277, 282, 293 (2011).Show More And Fifth Circuit precedent holds that monetary damages are unavailable under RLUIPA for suits against state officials in their individual capacity.14 14.Sossamon v. Lone Star State of Texas (Sossamon I), 560 F.3d 316, 331 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon II, 563 U.S. 277. Suits against an officer in their individual or “personal” capacity are lawsuits that “can be executed only against the official’s personal assets” and not the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 166 (1985).Show More

Sympathy aside, the federal courts left Landor empty-handed. This Note rejects that result as his proper judicial fate. Particularly, it argues that damages should be available in suits against officers in their individual capacity under RLUIPA. The present answer, across all federal circuits to have addressed the question, is that they are not.15 15.See, e.g., Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007).Show More But this unanimity is deceiving. Most courts have not readdressed the question since the U.S. Supreme Court handed down its 2020 decision in Tanzin v. Tanvir, which established that individual capacity suits for damages are available under the federal Religious Freedom Restoration Act (“RFRA”).16 16.141 S. Ct. 486, 493 (2020).Show More RFRA and RLUIPA are commonly labeled “twin” or “sister” statutes.17 17.See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (“sister”); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020) (Alito, J., concurring) (“twin”).Show More Both were enacted as part of Congress’s efforts to legislatively abrogate the Supreme Court’s abandonment of the strict scrutiny standard for violations of the Free Exercise Clause in Employment Division v. Smith.18 18.See Holt v. Hobbs, 574 U.S. 352, 356–57 (2015).Show More They also share functionally identical remedial provisions, allowing for injured parties to seek “appropriate relief against a government.”19 19.42 U.S.C. §§ 2000bb-1(c), 2000cc-2(a).Show More

Despite this congruity and the common practice of using case law interpreting the text of one of these “twin” statute to elucidate the other’s meaning, the scope of RLUIPA’s remedies remains unchanged.20 20.See infra Section I.B.Show More The Fifth Circuit, one of the few courts of appeals to revisit the question of individual capacity damages suits following Tanzin, reaffirmed their unavailability under RLUIPA in Landor’s case.21 21.Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023).Show More The panel focused, as other circuits have, on the fact that RLUIPA, unlike RFRA, is Spending Clause legislation.22 22.See id. at 344 (explaining that Tanzin’s holding does not reach RLUIPA because “it addresses a different law that was enacted under a separate Congressional power”); see also Tripathy v. McKoy, 103 F.4th 106, 114 (2d Cir. 2024) (reaffirming a narrower interpretation of RFRA’s remedial scheme “for the simple reason that RFRA and RLUIPA were enacted pursuant to different constitutional provisions”).Show More As the panel explained, there are unique barriers to the imposition of liability under statutes enacted through Congress’s spending power—barriers that RLUIPA does not overcome in the context of individual officer damages suits.23 23.See Landor, 82 F.4that 341 (“Spending Clause legislation ‘operates like a contract,’ so ‘only the grant recipient—the state—may be liable for its violation.’” (quoting Sossamon I, 560 F.3d 316, 328 (5th Cir. 2009))).Show More However, six judges dissented from the denial of a rehearing en banc, finding the Spending Clause arguments unconvincing.24 24.See Landor v. La. Dep’t of Corr. & Pub. Safety, 93 F.4th 259, 265 (5th Cir. 2024) (Oldham, J., dissenting from the denial of rehearing en banc).Show More Nine other judges concurred in the denial, asserting that only the Supreme Court could resolve the intractable friction between prior precedent and Tanzin.25 25.See id. at 261 (Clement, J., concurring in the denial of rehearing en banc) (“[T]hreading the needle between Sossamon II and Tanzin is a task best reserved for the court that wrote those opinions.”).Show More As Damon Landor’s case sits pending on the Supreme Court’s docket and other circuits grapple with Tanzin’s upshot,26 26.See, e.g., Fuqua v. Raak, 120 F.4th 1346, 1360 (9th Cir. 2024) (acknowledging that Tanzin indicates that “appropriate relief” should carry the same meaning across RFRA and RLUIPA, but concluding that the court remains bound by pre-Tanzin circuit precedent).Show More the question is ripe and underexplored.

This Note proceeds in four Parts. Part I examines the establishment and demise of the strict scrutiny standard of review for claims under the First Amendment’s Free Exercise Clause. Part I also analyzes the enactment of RFRA and RLUIPA in response to Smith, the case that circumscribed the application of strict scrutiny review to free exercise claims, as well as the prevailing judicial interpretations of these statutes’ remedial schemes. Parts II and III separately address each of the two Spending Clause rationales for the unavailability of damages against individual state and local officials under RLUIPA: (1) that RLUIPA does not provide the requisite “clear notice” to individual officers of their potential liability for damages; and (2) that individual officials are not themselves recipients of federal funds and thus cannot be held personally liable for violating RLUIPA’s terms. Parts II and III challenge these conclusions. Specifically, these Parts conclude that “clear notice” has been provided and non-recipients of federal funds can be held liable for violations of the conditions of spending power legislation, so damages should be available against individual officers under RLUIPA. Finally, Part IV discusses the real-world implications of the issues addressed in this Note. For the over 1.5 million individuals currently incarcerated in federally funded state prisons and local jails, the Free Exercise Clause permits almost across-the-board denial of religious accommodations. And RLUIPA currently extends a right to religious accommodations but often no remedy.

  1.  Complaint & Jury Demand ¶ 37, Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085 (M.D. La. Sept. 29, 2022), aff’d, 82 F.4th 337 (5th Cir. 2023), cert. granted, 145 S. Ct. 2814 (2025). ↑
  2.  Id. ¶¶ 21–24. ↑
  3.  See Ware v. La. Dep’t of Corr., 866 F.3d 263, 274 (5th Cir. 2017) (holding that a Louisiana Department of Corrections grooming policy, which prohibited inmates from having dreadlocks, was an unjustified substantial burden on Rastafarian inmates’ faith under RLUIPA). ↑
  4.  Complaint & Jury Demand, supra note 1, ¶ 33. ↑
  5.  Id ¶ 34. ↑
  6.  Id. ¶¶ 34–35. ↑
  7.  Id. ¶ 36. ↑
  8.  Id ¶ 37. ↑
  9.  Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085, at *3 (M.D. La. Sept. 29, 2022). ↑
  10.  Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023). ↑
  11.  Id. ↑
  12.  See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (concluding that an incarcerated individual’s suit for equitable relief under RLUIPA is mooted once they leave the injurious facility). ↑
  13.  See Sossamon v. Texas (Sossamon II), 563 U.S. 277, 282, 293 (2011). ↑
  14.  Sossamon v. Lone Star State of Texas (Sossamon I), 560 F.3d 316, 331 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon II, 563 U.S. 277. Suits against an officer in their individual or “personal” capacity are lawsuits that “can be executed only against the official’s personal assets” and not the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 166 (1985). ↑
  15.  See, e.g., Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007). ↑
  16.  141 S. Ct. 486, 493 (2020). ↑
  17.  See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (“sister”); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020) (Alito, J., concurring) (“twin”). ↑
  18.  See Holt v. Hobbs, 574 U.S. 352, 356–57 (2015). ↑
  19.  42 U.S.C. §§ 2000bb-1(c), 2000cc-2(a). ↑
  20.  See infra Section I.B. ↑
  21.  Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023). ↑
  22.  See id. at 344 (explaining that Tanzin’s holding does not reach RLUIPA because “it addresses a different law that was enacted under a separate Congressional power”); see also Tripathy v. McKoy, 103 F.4th 106, 114 (2d Cir. 2024) (reaffirming a narrower interpretation of RFRA’s remedial scheme “for the simple reason that RFRA and RLUIPA were enacted pursuant to different constitutional provisions”). ↑
  23.  See Landor, 82 F.4th at 341 (“Spending Clause legislation ‘operates like a contract,’ so ‘only the grant recipient—the state—may be liable for its violation.’” (quoting Sossamon I, 560 F.3d 316, 328 (5th Cir. 2009))). ↑
  24.  See Landor v. La. Dep’t of Corr. & Pub. Safety, 93 F.4th 259, 265 (5th Cir. 2024) (Oldham, J., dissenting from the denial of rehearing en banc). ↑
  25.  See id. at 261 (Clement, J., concurring in the denial of rehearing en banc) (“[T]hreading the needle between Sossamon II and Tanzin is a task best reserved for the court that wrote those opinions.”). ↑

  26.  See, e.g., Fuqua v. Raak, 120 F.4th 1346, 1360 (9th Cir. 2024) (acknowledging that Tanzin indicates that “appropriate relief” should carry the same meaning across RFRA and RLUIPA, but concluding that the court remains bound by pre-Tanzin circuit precedent). ↑

Rethinking Youth Privacy

Congress and state legislatures are showing renewed interest in youth privacy, proposing myriad new laws to address data extraction, addiction, manipulation, and more. Almost all of their proposals, and youth privacy law in general, follow what we call the parental control model. The model is erected in the name of children, but it mostly ignores their expressed privacy interests. Under the model, parents are asked to provide consent for the collection of children’s data, to check on the handling of that data, and to protect children from danger. Because parental control dominates policymaking and scholarly discourse, it goes unquestioned. This Article challenges the status quo. Parental control risks harm to vulnerable children, overburdens caregivers (who are more often women), and denies youth the intimate privacy that they need to grow and develop close relationships, including, ironically, relationships with their parents. The parental control model disserves nearly everyone involved except companies that press for its adoption because it earns them massive advertising profits without costly responsibilities for youth safety and privacy. The time is now to reimagine the youth privacy project. We need to shed the yoke of exclusive parental control and to protect the intimate privacy that youth want, expect, and deserve. Our proposal foregrounds youth voices and intimate privacy interests. It calls for policymakers to address corporate amassing of youth data and to place responsibility on their shoulders, which accords with what young people say they want. Companies are best situated to secure youth privacy and to minimize risks to child safety. Beyond law, parents should be encouraged to act more as partners with their children in the effort to protect their intimate privacy. That personal imperative will redound to parents’ and children’s benefit and engender trust and love.

Introduction

The privacy afforded young people is under threat. Social media companies track and share young people’s online activities with advertisers, generating billions in profits.1 1.Alfred Ng, Where Parental Snooping Is Becoming the Law, Politico (Apr. 11, 2023, 1:50 PM), https://www.politico.com/news/2023/04/11/social-media-privacy-parents-kids-00‌091400.Show More Commercial websites trap young people in endless loops of data extraction, data-driven targeted advertisements, and video feeds that manipulate behavior, facilitate addiction, and increase screen time.2 2.Samuel Levine, Bureau of Consumer Prot., Protecting Kids From Stealth Advertising in Digital Media 1–5 (2023), https://www.ftc.gov/system/files/ftc_gov/pdf/p214505kidsadvertis‌ingstaffperspective092023.pdf [https://perma.cc/39DS-KZYF].Show More Surveillance software monitors students’ laptop and tablet activities to detect bullying, suicidal ideation, and threats.3 3.Nir Kshetri, School Surveillance of Students via Laptops May Do More Harm Than Good, The 74 (Jan. 19, 2022), https://www.the74million.org/article/school-surveillance-of-students-via-laptops-may-do-more-harm-than-good/ [https://perma.cc/MMX8-79LE].Show More

Parental supervision has been policymakers’ go-to solution to securing youth privacy interests for decades. The Children’s Online Privacy Protection Act of 1998 (“COPPA”) requires websites and online services to ask parents for permission to handle children’s personal data and requires parents to contact those services to stop the further collection and sale of their children’s personal data.4 4.E.g., Children’s Online Privacy Protection Act (COPPA) of 1998, 15 U.S.C. §§ 6501–6506.Show More On January 16, 2025, the Federal Trade Commission (“FTC”), which enforces COPPA, finalized changes to its COPPA Rule to give parents control over advertisements targeted to children.5 5.Children’s Online Privacy Protection Rule, 16 C.F.R. § 312 (2025).Show More The Kids Online Safety Act, which the Senate passed in June 2024, would enhance parental authority by requiring online platforms to provide controls for parents so they can monitor accounts held by children aged sixteen and younger.6 6.Kids Online Safety and Privacy Act, S. 2073, 118th Cong. § 103(b) (as passed by Senate, July 30, 2024); see also H.B. 311, 2023 Gen. Sess., Reg. Sess. (Utah 2023) (“Social Media Usage Amendments”); S.B. 152, 2023 Gen. Sess., Reg. Sess. (Utah 2023) (giving parents power to monitor children’s social media accounts without their knowledge or permission).Show More

Under the mandate of law and the hydraulics of social pressure, parents have gotten the message that they should be monitoring their children.7 7.See, e.g., What Parents Should Know About Parental Control Apps, Nat’l Cybersecurity All. (June 28, 2023), https://staysafeonline.org/programs/events/what-parents-should-know-a‌bout-parental-control-apps-webinar/ [https://perma.cc/7R48-S727] (“[A]n essential part of parenting in the 21st Century is monitoring your children’s digital lives . . . [so] parents can work to keep their kids safe.”); Top 10 Best Parental Control Apps (2025), Fam. Online Safety, https://www.familyonlinesafety.com/best-paretnal-control-apps [https://perma.cc/DHT4-5‌TXT] (last updated Oct. 2025) (“Parental control apps are fast becoming a must have for any parent.”).Show More According to one study, 90% of parents surveyed try to monitor the digital activities of younger children (aged six through twelve); 40% of parents say that they endeavor to monitor the activities of older children (aged thirteen through seventeen).8 8.Microsoft, Global Online Safety Survey 2024, at 38–39 (2024), https://news.microsoft.co‌m/wp-content/uploads/prod/sites/40/2024/02/Microsoft-Global-Online-Safety-Survey-2024.‌pdf [https://perma.cc/R6WM-LFFY] (explaining that parents surveyed monitored children by receiving activity reports, reviewing friend requests, and reviewing and adjusting children’s privacy settings on accounts and devices).Show More Utah State Senator Kathleen Riebe, who uses an app to control her son’s phone, urges fellow parents to do the same.9 9.Utah Senate, Senate Floor Audio on S.B. 152, Day 28, 2023 Gen. Sess., at 01:05:58 (Feb. 13, 2023) [hereinafter Utah Senate Audio (Feb. 13, 2023)], https://le.utah.gov/av/floorArchive‌.jsp?markerID=121381 [https://perma.cc/34RU-SG94] (statement of Sen. Kathleen Riebe).Show More

The prevailing approach to children’s privacy in the United States follows what we call the parental control model—the ecosystem of laws, practices, logic, and ideologies that give parents authority over children’s privacy interests. That model is erected in the name of children’s privacy, but it mostly excludes youth and their privacy interests from the calculus.

Lawmakers are scrambling to tackle profoundly harmful corporate practices that exploit children’s data, including the manipulation of young people to consume material that causes self-doubt, depression, and suicide and exposes children to harassment and predation. Policymakers’ go-to response—parental control—is a failure. While the parental control model was never well suited to protect children’s privacy, it cannot meet this moment.

No parent, no matter how well intentioned and resourced, can ensure that children’s privacy is prioritized and protected. No parent can meaningfully curtail corporate data collection, either for themselves or their children.10 10.See Geoffrey A. Fowler, Your Kids’ Apps Are Spying on Them, Wash. Post (June 9, 2022), https://www.washingtonpost.com/technology/2022/06/09/apps-kids-privacy/ (noting that by the time a person turns thirteen, “online advertising firms hold an average of 72 million data points” on them).Show More Therefore, the inevitable result of parental authority is more corporate monetization of children’s data.11 11.Press Release, Fed. Trade Comm’n, FTC Staff Report Finds Large Social Media and Video Streaming Companies Have Engaged in Vast Surveillance of Users with Lax Privacy Controls and Inadequate Safeguards for Kids and Teens (Sept. 19, 2024), https://www.ftc.gov/‌news-events/news/press-releases/2024/09/ftc-staff-report-finds-large-social-media-video-stre‌aming-companies-have-engaged-vast-surveillance [https://perma.cc/UUT7-RFES] (detailing “the data collection and use practices of major social media and video streaming services” to “incentivize[] mass collection of user data to monetize, especially through targeted advertising”).Show More As for safety, even if parents could minimize or prevent some hazards, exclusive parental responsibilities mean exclusive parental burdens, and parents are ill-equipped to shoulder them. Also, not all parents are well meaning: youth have been thrown out of their homes or beaten after adults discovered children’s emerging LGBTQ+ identities by accessing their private online activities.12 12.Jamie Gorosh & Chris Wood, LGBT Tech & Future of Priv. F., Student Voices: LGBTQ+ Experiences in the Connected Classroom 7 (2023) (noting a 2020 survey by the Trevor Project that found “29% of LGBTQ+ youth have experienced homelessness, been kicked out of their homes, or have run away” (citation omitted)); see also Anne Collier, Why I Struggle Mightily with the New Utah Law, Net Fam. News (Mar. 30, 2023), https://www.netfamilynews.org/wh‌y-i-struggle-mightily-with-the-new-utah-law [https://perma.cc/L2AG-NDHR] (arguing that laws giving parents control over children’s online accounts “could end up supporting abusive parents who use it to monitor and punish children who use social media to get help”).Show More

The parental control model has a perverse downside: it undermines the very privacy that young people need to grow, mature, and thrive. In this Article, we use the term youth intimate privacy to refer to the privacy that young people claim, expect, and deserve.13 13. See generally Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age, at xii–xiii (2022) [hereinafter Citron, Fight for Privacy]. Intimate privacy is a capacious privacy interest that is critical to identity development, self-esteem, and love; it has special importance because it helps youth learn the skills of autonomy, independence, and relationship building, which are essential for adulthood. See infra Section III.B. We focus on youth intimate privacy for practical and normative reasons. Much of what law regulates implicates youth intimate privacy, and the privacy that most matters to human flourishing involves the privacy around our intimate lives. See generally infra Part III. Because of its importance and because even prosaic personal data becomes intimate data when amassed, we use the phrase youth intimate privacy interchangeably with youth privacy unless we signal otherwise.Show More Youth intimate privacy involves others’ access to, and information about, minors’ bodies, thoughts, health, sex, gender, sexual orientation, sexual activities, and close relationships, whether in physical or digital activities or spaces.14 14.Citron, Fight for Privacy, supra note 13, at xii.Show More Youth need intimate privacy for maturation, self-esteem, and close relationships.15 15.Danielle Keats Citron, The Surveilled Student, 76 Stan. L. Rev. 1439, 1457–60 (2024) [hereinafter Citron, Surveilled Student].Show More Intimate privacy is a prerequisite for autonomy and maturation.16 16.See, e.g., Maxine Wolfe, Childhood and Privacy, in Children and the Environment 175, 189 (Irwin Altman & Joachim F. Wohlwill eds., 1978) (explaining that “children’s experiences with privacy feed back into their sense of self-esteem and help define the range, limits, and consequences of individual autonomy”); Ross D. Parke, Children’s Home Environments: Social and Cognitive Effects, in Children and the Environment, supra, at 33, 66–68 (explaining how children’s need for privacy increases with age and varies by situation and activity).Show More Only with privacy can children grow and develop into democratic citizens, an oft-stated goal of parenting, education, and socialization.17 17.See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“That [public schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual . . . .”).Show More

Current privacy law ignores all of this and damages youth intimate privacy. It also frays parent-child relationships rather than enhances them.18 18.Valerian J. Derlega & Alan L. Chaikin, Sharing Intimacy: What We Reveal to Others and Why 15 (1975) (explaining that children can and occasionally will claim zones of privacy and that when parents disrespect those zones, children lose the trust necessary for close relationships).Show More Because children under parental surveillance feel that their trust has been betrayed, they do their best to hide their online activities from their parents.19 19.For a recent example, see Denise Witmer, Why Teens Need Privacy From Their Parents, Yahoo (July 29, 2024, 11:36 AM), https://www.yahoo.com/lifestyle/why-teens-privacy-paren‌ts-153635430.html [https://perma.cc/U2Q2-DNNV]. Part IV explores the rich social science literature in detail.Show More This puts youth at greater risk from the very hazards that rightly worry parents and policymakers.20 20.Ng, supra note 1 (“Researchers have found that parental monitoring apps . . . were associated with increased chances of teen online victimization, compared to teens whose parents didn’t use monitoring services.”); see Citron, Fight for Privacy, supra note 13, at 14–15 (explaining that some health apps pose risks to young women and girls’ health privacy and safety); Ari Ezra Waldman, Privacy as Trust: Information Privacy for an Information Age 62–78 (2018) [hereinafter Waldman, Privacy as Trust].Show More

In short, the parental control model is a wolf in sheep’s clothing. It is an empowering facade that leaves parents unable to protect children and undermines the intimate privacy that youth need to thrive. It is bad for parents, children, and parent-child relationships. And it is bad for the pursuit of equality. The parental control model places impossible burdens on caregivers, many of whom are women.21 21.Microsoft, supra note 8, at 39 (identifying mothers as more active in monitoring their children’s online activities).Show More It does the opposite of what it purports to do—it hurts parents and children, and it does not lead to greater privacy protections. Indeed, the central beneficiaries of parental control are the companies that earn massive profits from exploiting children’s data and endangering their safety.

Policymakers must reckon with the inadequacies of the current approach. They should reject exclusive parental control and choose a structural and collaborative posture to youth intimate privacy for the good of children, parents, families, and democracy. We propose a new model to do just that. Our approach foregrounds youth voices and interests, prioritizes legal reform focused on corporate responsibility, encourages parental-child collaboration, and supports young people and their parents.

Now is the time to rethink youth intimate privacy. Federal proposals are being introduced and debated. States are filling the void, but their work is just beginning. Plus, the risks are undeniable: the advertising-driven information economy invades young people’s privacy at alarming rates.22 22.Katie Joseff, Behavioral Advertising Harms: Kids and Teens, Common Sense Media 2–3 (2022), https://www.commonsensemedia.org/sites/default/files/featured-content/files/beha‌vioral_-surveillance-advertising-brief.pdf [https://perma.cc/N2S7-XFTK] (noting that the advertising technology industry has at least seventy-two million data points about each child before they are thirteen).Show More Rapidly advancing artificial intelligence metastasizes those privacy risks by increasing demand for data about individuals.23 23.E.g., Harry Surden, Artificial Intelligence and Law: An Overview, 35 Ga. St. U. L. Rev. 1305, 1315–16 (2019).Show More Adolescents, particularly young women, face the dangers of image-based sexual abuse and pornographic deepfakes.24 24.Natasha Singer, Teen Girls Confront an Epidemic of Deepfake Nudes in Schools, N.Y. Times (Apr. 8, 2024), https://www.nytimes.com/2024/04/08/technology/deepfake-ai-nudes-w‌estfield-high-school.html.Show More

In developing this argument, this Article makes several contributions to legal scholarship. We challenge the conventional approach that automatically associates parental privacy control with youth privacy. We interrogate the often-ignored step of relying upon parents to the exclusion, and sometimes to the detriment, of children themselves. We unearth legislative history showing that many so-labeled youth privacy laws were drafted to empower parents to dictate young peoples’ activities, rather than to directly secure youth privacy interests. We highlight youth perspectives on intimate privacy, drawn from state legislative testimony, which have been left out of scholarly discussion in the United States. Our vision of youth privacy law charts a more straightforward, inclusive, and productive path. It begins with structural reform because individualized efforts are ineffective, burdensome, and isolating. It calls for the involvement of all parties (including youth, parents, and schools) in securing youth privacy interests. Adjusting parental control at the margins or shifting domination from parents to young people or schools is insufficient.

This Article has four parts. Part I shows the breadth of the parental control model. It surfaces the tradition of parental privacy authority in youth privacy law, from the rules governing the collection and processing of children’s data by digital platforms to data concerning youth as students.

Part II uncovers the prevailing rationales for the parental control model, filling a gap left by existing privacy scholarship that has, for the most part, assumed that parental control is obvious and acceptable. Those explanations involve distinct but interrelated categories: social science, norms, and legal policy. First, we show that the parental control model depends on a particular view of childhood development that sees maturity, defined by age, as a prerequisite for making informed choices about privacy. Second, the parental control model is based on legal rationales borrowed from consumer privacy, including the rationality demands of the “notice-and-consent” approach whereby adults are presumed to read privacy policies and make choices about online disclosure.25 25.The literature on notice-and-consent is voluminous. For discussions specifically connecting notice-and-consent with the presumption of rationality, see, e.g., Ari Ezra Waldman, Industry Unbound: The Inside Story of Privacy, Data, and Corporate Power 52–63 (2021); Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control the Design of New Technologies 35–36 (2018).Show More Last, it reflects norms of the family in which adults inculcate children with their values and ideals.

Part III challenges these rationales, finding them uninformed, overinclusive, and discriminatory. This Part highlights how exclusive parental control over youth privacy is not supported by the social science literature, which emphasizes the importance of privacy to childhood development. It explores how social norm-based rationales for parental control are based on an overly romanticized conception of the family, in terms of both gender roles and the relationship between caregivers and youth. Relying on this vision of the family sweeps aside the reality that many young people, including LGBTQ+ children, grow up without that romanticized family dynamic. Finally, this Part shows how the legal rationales border on the absurd: a long line of studies shows that adults are incapable of bearing the burden of privacy self-management and effectuating their own privacy preferences,26 26.See, e.g., Daniel J. Solove, Privacy Self-Management and the Consent Dilemma, 126 Harv. L. Rev. 1880, 1882–93 (2013).Show More and yet current law expects them to do so not only for themselves but also for their children.

Part IV offers a new model for youth intimate privacy based on four principles: respect for youth voices, structural reform, collaboration, and support. Lawmakers and regulatory authorities should step in to ensure that youth intimate privacy interests are secured in the information economy—the time is now to regulate the very companies whose data-extractive practices undermine youth intimate privacy and endanger child safety. Lawmakers can and should collaborate with and listen to young people about their privacy expectations and needs. Schools and youth can support parents, alleviating parental isolation from systems of support and bearing some of the burdens. We consider this piece a first step, not a precise road map. We want to encourage the development of a youth intimate privacy project that can evolve to meet new challenges and accommodate different interests.

  1.  Alfred Ng, Where Parental Snooping Is Becoming the Law, Politico (Apr. 11, 2023, 1:50 PM), https://www.politico.com/news/2023/04/11/social-media-privacy-parents-kids-00‌091400. ↑
  2.  Samuel Levine, Bureau of Consumer Prot., Protecting Kids From Stealth Advertising in Digital Media 1–5 (2023), https://www.ftc.gov/system/files/ftc_gov/pdf/p214505kidsadvertis‌ingstaffperspective092023.pdf [https://perma.cc/39DS-KZYF]. ↑
  3.  Nir Kshetri, School Surveillance of Students via Laptops May Do More Harm Than Good, The 74 (Jan. 19, 2022), https://www.the74million.org/article/school-surveillance-of-students-via-laptops-may-do-more-harm-than-good/ [https://perma.cc/MMX8-79LE]. ↑
  4.  E.g., Children’s Online Privacy Protection Act (COPPA) of 1998, 15 U.S.C. §§ 6501–6506. ↑
  5.  Children’s Online Privacy Protection Rule, 16 C.F.R. § 312 (2025). ↑
  6.  Kids Online Safety and Privacy Act, S. 2073, 118th Cong. § 103(b) (as passed by Senate, July 30, 2024); see also H.B. 311, 2023 Gen. Sess., Reg. Sess. (Utah 2023) (“Social Media Usage Amendments”); S.B. 152, 2023 Gen. Sess., Reg. Sess. (Utah 2023) (giving parents power to monitor children’s social media accounts without their knowledge or permission). ↑
  7.  See, e.g., What Parents Should Know About Parental Control Apps, Nat’l Cybersecurity All. (June 28, 2023), https://staysafeonline.org/programs/events/what-parents-should-know-a‌bout-parental-control-apps-webinar/ [https://perma.cc/7R48-S727] (“[A]n essential part of parenting in the 21st Century is monitoring your children’s digital lives . . . [so] parents can work to keep their kids safe.”); Top 10 Best Parental Control Apps (2025), Fam. Online Safety, https://www.familyonlinesafety.com/best-paretnal-control-apps [https://perma.cc/DHT4-5‌TXT] (last updated Oct. 2025) (“Parental control apps are fast becoming a must have for any parent.”). ↑
  8.  Microsoft, Global Online Safety Survey
    2024,

    at 38–39 (2024), https://news.microsoft.co‌m/wp-content/uploads/prod/sites/40/2024/02/Microsoft-Global-Online-Safety-Survey-2024.‌pdf [https://perma.cc/R6WM-LFFY] (explaining that parents surveyed monitored children by receiving activity reports, reviewing friend requests, and reviewing and adjusting children’s privacy settings on accounts and devices). ↑

  9.  Utah Senate, Senate Floor Audio on S.B. 152, Day 28, 2023 Gen. Sess., at 01:05:58 (Feb. 13, 2023) [hereinafter Utah Senate Audio (Feb. 13, 2023)], https://le.utah.gov/av/floorArchive‌.jsp?markerID=121381 [https://perma.cc/34RU-SG94] (statement of Sen. Kathleen Riebe). ↑
  10.  See Geoffrey A. Fowler, Your Kids’ Apps Are Spying on Them, Wash. Post (June 9, 2022), https://www.washingtonpost.com/technology/2022/06/09/apps-kids-privacy/ (noting that by the time a person turns thirteen, “online advertising firms hold an average of 72 million data points” on them). ↑
  11.  Press Release, Fed. Trade Comm’n, FTC Staff Report Finds Large Social Media and Video Streaming Companies Have Engaged in Vast Surveillance of Users with Lax Privacy Controls and Inadequate Safeguards for Kids and Teens (Sept. 19, 2024), https://www.ftc.gov/‌news-events/news/press-releases/2024/09/ftc-staff-report-finds-large-social-media-video-stre‌aming-companies-have-engaged-vast-surveillance [https://perma.cc/UUT7-RFES] (detailing “the data collection and use practices of major social media and video streaming services” to “incentivize[] mass collection of user data to monetize, especially through targeted advertising”). ↑
  12.  Jamie Gorosh & Chris Wood, LGBT Tech & Future of Priv. F., Student Voices: LGBTQ+ Experiences in the Connected Classroom
    7

    (2023) (noting a 2020 survey by the Trevor Project that found “29% of LGBTQ+ youth have experienced homelessness, been kicked out of their homes, or have run away” (citation omitted)); see also Anne Collier, Why I Struggle Mightily with the New Utah Law, Net Fam. News (Mar. 30, 2023), https://www.netfamilynews.org/wh‌y-i-struggle-mightily-with-the-new-utah-law [https://perma.cc/L2AG-NDHR] (arguing that laws giving parents control over children’s online accounts “could end up supporting abusive parents who use it to monitor and punish children who use social media to get help”). ↑

  13.  See generally Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age, at xii–xiii (2022) [hereinafter Citron, Fight for Privacy]. Intimate privacy is a capacious privacy interest that is critical to identity development, self-esteem, and love; it has special importance because it helps youth learn the skills of autonomy, independence, and relationship building, which are essential for adulthood. See infra Section III.B. We focus on youth intimate privacy for practical and normative reasons. Much of what law regulates implicates youth intimate privacy, and the privacy that most matters to human flourishing involves the privacy around our intimate lives. See generally infra Part III. Because of its importance and because even prosaic personal data becomes intimate data when amassed, we use the phrase youth intimate privacy interchangeably with youth privacy unless we signal otherwise. ↑
  14.  Citron, Fight for Privacy, supra note 13, at xii. ↑
  15.  Danielle Keats Citron, The Surveilled Student,
    76

    Stan. L. Rev. 1439, 1457–60 (2024) [hereinafter Citron, Surveilled Student]. ↑

  16.  See, e.g., Maxine Wolfe, Childhood and Privacy, in Children and the Environment 175, 189 (Irwin Altman & Joachim F. Wohlwill eds., 1978) (explaining that “children’s experiences with privacy feed back into their sense of self-esteem and help define the range, limits, and consequences of individual autonomy”); Ross D. Parke, Children’s Home Environments: Social and Cognitive Effects, in Children and the Environment, supra, at 33, 66–68 (explaining how children’s need for privacy increases with age and varies by situation and activity). ↑
  17.  See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“That [public schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual . . . .”). ↑
  18.  Valerian J. Derlega & Alan L. Chaikin, Sharing Intimacy: What We Reveal to Others and Why 15 (1975) (explaining that children can and occasionally will claim zones of privacy and that when parents disrespect those zones, children lose the trust necessary for close relationships). ↑
  19.  For a recent example, see Denise Witmer, Why Teens Need Privacy From Their Parents, Yahoo (July 29, 2024, 11:36 AM), https://www.yahoo.com/lifestyle/why-teens-privacy-paren‌ts-153635430.html [https://perma.cc/U2Q2-DNNV]. Part IV explores the rich social science literature in detail. ↑
  20.  Ng, supra note 1 (“Researchers have found that parental monitoring apps . . . were associated with increased chances of teen online victimization, compared to teens whose parents didn’t use monitoring services.”); see Citron, Fight for Privacy, supra note 13, at 14–15 (explaining that some health apps pose risks to young women and girls’ health privacy and safety); Ari Ezra Waldman, Privacy as Trust: Information Privacy for an Information Age 62–78 (2018) [hereinafter Waldman, Privacy as Trust]. ↑
  21.  Microsoft, supra note 8, at 39 (identifying mothers as more active in monitoring their children’s online activities). ↑
  22.  Katie Joseff, Behavioral Advertising Harms: Kids and Teens, Common Sense Media 2–3 (2022), https://www.commonsensemedia.org/sites/default/files/featured-content/files/beha‌vioral_-surveillance-advertising-brief.pdf [https://perma.cc/N2S7-XFTK] (noting that the advertising technology industry has at least seventy-two million data points about each child before they are thirteen). ↑
  23.  E.g., Harry Surden, Artificial Intelligence and Law: An Overview, 35 Ga. St. U. L. Rev. 1305, 1315–16 (2019). ↑
  24.  Natasha Singer, Teen Girls Confront an Epidemic of Deepfake Nudes in Schools, N.Y. Times
    (

    Apr. 8, 2024), https://www.nytimes.com/2024/04/08/technology/deepfake-ai-nudes-w‌estfield-high-school.html. ↑

  25.  The literature on notice-and-consent is voluminous. For discussions specifically connecting notice-and-consent with the presumption of rationality, see, e.g., Ari Ezra Waldman, Industry Unbound: The Inside Story of Privacy, Data, and Corporate Power 52–63 (2021); Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control the Design of New Technologies 35–36 (2018). ↑

  26.  See, e.g., Daniel J. Solove, Privacy Self-Management and the Consent Dilemma,

    126

    Harv. L. Rev.

    1880, 1882–93

    (2013). ↑

Disfavored Supreme Court Precedent in the Lower Federal Courts

There has been significant debate in recent years about the stare decisis effect of Supreme Court decisions, prompted in large part by the overturning of Roe v. Wade and, more recently, by the overturning of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Almost all of this debate has concerned whether the Court should adhere to its own decisions, a matter of “horizontal” stare decisis. But potentially even more significant is the “vertical” effect of Supreme Court precedent on the lower courts, which handle almost all of the federal judicial business. If the Supreme Court expressly overturns a precedent, the lower courts will of course stop following that precedent. But what happens when the Court simply suggests in some way that the precedent is in disfavor? This Article considers that question from both empirical and normative perspectives, drawing on case studies of three doctrines that lost favor on the Court: the Lemon test for Establishment Clause claims, Bivens actions, and Chevron deference. Based on this analysis, we develop what we term a “decisional authority model,” pursuant to which the lower courts should consider some disfavoring signals but not others when determining the weight to be given to a Supreme Court precedent. We provide a taxonomy of potential signals and offer guidance to lower courts on how to respond to these signals. We also highlight the trade-offs between disfavoring and overturning precedent.

Introduction

Almost everyone agrees that the lower federal courts must follow Supreme Court decisions. But what happens when the Supreme Court itself chips away at or begins ignoring a precedent without overruling it? Although the past few terms have led scholars to focus on outright overruling, that is not the only way in which the Court can undermine or cast doubt upon its past decisions. In areas ranging from civil rights to administrative law, the Court has used various methods to put its prior rulings on seemingly thin ice.

One illustration is the Lemon test for Establishment Clause claims, which required a consideration of the purpose and effect of government action and whether the government had become too entangled with religion.1 1.See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).Show More In the decades after the Court established that test in 1971, the doctrine was roundly criticized by numerous Justices and ignored in a number of decisions, yet never expressly overruled.2 2.See infra Section III.A.Show More Then, in 2022, Justice Gorsuch’s opinion for the Court in Kennedy v. Bremerton School District declared that the Lemon test had “long ago” been “abandoned”—without explaining precisely when or how such abandonment had occurred.3 3.142 S. Ct. 2407, 2427–28 (2022). The dissenters understood Kennedy as the first official overruling of the Lemon test. See id. at 2434, 2447, 2449 (Sotomayor, J., dissenting).Show More The implication was that the Justices had “abandoned” Lemon by either repeatedly denouncing or failing to apply the precedent (or both).

There are many other examples. One is the Court’s decision (also from 1971) in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which allowed private plaintiffs to bring damages claims against federal officials for constitutional violations.4 4.See 403 U.S. 388, 395–97 (1971).Show More Although the Court has never overruled Bivens, it has rejected every Bivens claim it has considered since 1980 and, in recent years, has emphasized that the remedy is “disfavored.”5 5.See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); infra Section III.B.Show More

Another illustration is the long-standing Chevron doctrine concerning judicial deference to administrative agencies.6 6.See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844–45, 865 (1984).Show More Over the past decade, despite deciding a number of cases involving agency interpretations of statutes, the Court often declined even to cite Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., let alone rely on it, and some Justices openly called for the Court to overturn it.7 7.See infra Section III.C.Show More When it finally did so in June 2024, the Court described Chevron as a “crumbling precedent[]” and colorfully observed that “all that remains of Chevron is a decaying husk with bold pretensions.”8 8.Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2252, 2272 (2024).Show More

In these examples, the Supreme Court has “disfavored” its own precedent—that is, the Court has suggested that the decision should be given less weight than what would have seemed appropriate when the decision was first issued. Through this definition of disfavoring precedent, we mean to encompass what other scholars have variously called “stealth overruling,” “narrowing,” and “obstructing” precedent, as well as confining a precedent to its particular factual setting.9 9.See, e.g., Rachel Bayefsky, Judicial Institutionalism, 109 Cornell L. Rev. 1297, 1305 (2024) (arguing that “it can be institutionally beneficial for judges” to engage in “stealth overruling”); Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 4–5 (2010) (criticizing “stealth overruling”); Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 Va. L. Rev. 865, 872 (2019) (criticizing the approach of confining a precedent to its facts); Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1865–66 (2014) [hereinafter Re, Narrowing in the Court] (defending “narrowing”); Bill Watson, Obstructing Precedent, 119 Nw. U. L. Rev. 259, 263–64 (2024) (offering a limited defense of “obstructing” precedent).Show More Most examinations of this phenomenon have focused on whether, and under what circumstances, the Supreme Court may legitimately disfavor its own precedents, which is an important question of horizontal stare decisis. But our focus is different. In this Article, we consider empirical and normative questions surrounding vertical stare decisis—in particular, how the lower courts can and should respond to disfavoring, and how the Supreme Court can and should guide the lower courts in their responses.

When the Supreme Court disfavors a precedent, what happens in the lower federal courts, which do almost all of the federal judicial business? Do they treat a disfavored precedent as fully operative? As diminished but still in effect? As abandoned? How should they treat such precedents? These questions have become even more pressing as statements by concurring and dissenting Justices seem increasingly to be directed at the lower courts.10 10.For recent examples, see Labrador v. Poe, 144 S. Ct. 921, 927 (2024) (Gorsuch, J., concurring in the grant of stay, joined by Thomas & Alito, JJ.) (“Lower courts would be wise to take heed.”); United States v. Texas, 143 S. Ct. 1964, 1977 (2023) (Gorsuch, J., concurring in the judgment, joined by Thomas & Barrett, JJ.) (suggesting that “lower courts should just leave that idea [of special solicitude for state standing] on the shelf in future” cases).Show More

This Article aims to tackle these (and related) questions. Our analysis has empirical as well as theoretical and normative components. With some notable exceptions, work by legal scholars on the relationship between the Supreme Court and the lower federal courts has tended to focus on conceptual issues about how the judicial system should operate.11 11.See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev.817, 821–22 (1994) [hereinafter Caminker, Inferior Courts]; Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 6–7 (1994) [hereinafter Caminker, Precedent and Prediction]; Tara Leigh Grove, Sacrificing Legitimacy in a Hierarchical Judiciary, 121 Colum. L. Rev. 1555, 1563 (2021) [hereinafter Grove, Legitimacy]; Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 669 (2012); Richard M. Re, Narrowing Supreme Court Precedent From Below, 104 Geo. L.J. 921, 927 (2016) [hereinafter Re, Narrowing From Below]; Thomas P. Schmidt, Judicial Minimalism in the Lower Courts, 108 Va. L. Rev. 829, 837–39 (2022).Show More This is valuable work, but any analysis of whether the system of precedent is working the way that it should—that is, whether there is an actual problem that needs correcting—requires an understanding of how it is in fact operating, which requires some empirical study.

Accordingly, we gathered and analyzed data on federal courts of appeals cases involving the three legal doctrines mentioned above: the Lemon test for Establishment Clause claims; Bivens actions; and Chevron deference. In each area, the Court issued a major decision, then appeared to back away from that precedent in subsequent rulings.12 12.See infra Part III (describing these doctrinal changes).Show More To get a sense of how the courts of appeals have responded over time to the Supreme Court’s apparent disavowal of its precedent, we coded and analyzed a random sample of federal court of appeals decisions in these three areas.13 13.We describe in Part III our coding methodology for each doctrinal area.Show More We also qualitatively reviewed the decisions in order to get a more in-depth understanding of what the courts were doing.

This empirical information helps us better frame the theoretical and normative questions surrounding the judicial hierarchy. On the theoretical side, the existing perspectives seem to fall into one of two camps. Some scholars have claimed that a lower federal court should make a “prediction” about how the current Supreme Court might rule in a case and act accordingly.14 14.See infra Section II.B.Show More Other commentary disputes that view and suggests that lower federal courts should treat a past Supreme Court precedent as “authoritative,”15 15.We borrow the “authority” and “prediction” terms from Richard Re. See Re, Narrowing From Below, supra note 11, at 940. Evan Caminker has used the terms “precedent” and “proxy” models to embody the same basic distinction. See Caminker, Precedent and Prediction, supra note 11, at 4–6.Show More without speculating about what the current Court might do.16 16.See infra Section II.B.Show More That is, this commentary argues for an authority model rather than a prediction model.

As we will show, the existing models do not capture the complexity of proper lower court adherence to Supreme Court precedent. With rare exceptions, lower federal courts do not seek to predict how the current Supreme Court might rule in a case—an effort that would both undermine the status of existing decisions as sources of law and be fraught with the potential for error. That is, lower courts generally follow an authority model.

But the authority model has thus far been ill-defined. Some declarations from the Supreme Court suggest that lower courts should treat an earlier decision as binding, despite later decisions that indicate that it is in disfavor.17 17.See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming that if “a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))).Show More On this view, lower court judges should focus only on the original meaning of the decision and ignore subsequent developments. But such an approach neither accords with lower court practice nor makes sense as a normative matter. Instead, under any viable authority model, lower courts should focus on a broader array of Supreme Court materials. Yet neither the Court nor academic commentary has identified what properly falls (and does not fall) into that broader array.

This Article offers a different understanding of vertical precedent, which we call a “decisional authority” model. Our model is based on two sets of normative goals. First, the model aims to promote the rule of law values that are typically associated with vertical stare decisis, including predictability, consistency, and judicial legitimacy. Second, as under any authority model, our model is designed to ensure that lower courts treat Supreme Court decisions as “the law,” even if there are reasons to believe that this law might change.

To serve these goals, it is important to provide more analytical clarity on vertical precedent. So we offer a taxonomy of five potential signals that might indicate that a precedent is in disfavor: (1) disparaging statements in subsequent opinions; (2) decisions that distinguish or narrow an earlier decision; (3) failure to cite a precedent; (4) decisions in related areas that seem inconsistent with the earlier precedent; and (5) methodological shifts that seem to undermine the foundations of a precedent. We argue that, under a proper authority model, not every disfavoring signal from the Justices is of equal value.

Which of these signals count? Under our decisional authority model, lower federal courts should rely only on the first and second categories, and only to the extent that the Supreme Court has criticized, distinguished, or narrowed its precedent in binding decisions. By contrast, lower courts should not rely at all on the third, fourth, or fifth categories—the failure to cite a precedent, changes in other areas of law, or methodological shifts. Supreme Court silence, as well as changes in methodology or other areas of law, provide uncertain and unreliable information about the legal status of a past precedent. Nor should lower courts rely on the first category, to the extent that the disparaging statements come only from plurality, concurring, or dissenting opinions. A subset of Justices, we contend, should not be able to undermine a past decision of the Supreme Court.

Under our approach, lower courts consider different factors than the Court itself in deciding how to treat a Supreme Court precedent. Because the Court has the authority to overturn or modify its own precedents, the Court can consider, for example, whether a past decision is erroneous, but that is not a consideration open to the lower federal courts. Relatedly, the Court may take into account a variety of signals about the status of a past precedent, including its own failure to cite a decision, as well as disparaging comments in separate opinions, methodological shifts, or changes in other areas of its doctrine. These options are not, we argue, available to the lower courts.

Our decisional authority model is more nuanced than prior accounts and offers needed guidance to the lower federal courts. As noted, our empirical research suggests that lower courts generally do seek to treat Supreme Court decisions as authoritative, rather than engaging in mere prediction. But we find that there is some confusion in the lower courts as to, for example, how to treat plurality or separate opinions that attack an earlier decision, or what to do with Supreme Court silence or methodological shifts. Our normative analysis provides guidance on which types of Supreme Court signals should matter in a scheme of vertical precedent.

This project has implications not only for the proper role of the lower federal courts but also for that of the Supreme Court. Many scholars have asserted that the Court has a leading role in overseeing how the lower courts interpret and apply federal law.18 18.For examples, see infra notes 28–32 and accompanying text.Show More To the extent that one accepts that view, how can the Court best perform that role? One might assume that, if the Supreme Court aims to undermine a precedent, it should expressly overrule that precedent, rather than signal that the precedent is disfavored. Indeed, some Justices have argued as much.19 19.See, e.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 636–37 (2007) (Scalia, J., concurring in the judgment) (calling for the overruling of Flast v. Cohen, 392 U.S. 83 (1968), rather than “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive”); infra Part III (noting calls to overrule other doctrines).Show More We argue, however, that the picture is more complex. The Supreme Court may properly signal that a precedent is disfavored without overruling it, but only when it acts through binding decisions. Neither judicial silence nor disparaging statements in separate opinions should be enough to signal that a precedent has been “abandoned.”

These questions are crucially important today. Although we focus on three issue areas, similar questions arise with respect to the effect of precedent concerning many other questions of federal law that are currently the subject of considerable debate, such as qualified immunity,20 20.See, e.g., Mack v. Yost, 63 F.4th 211, 226 & n.12 (3d Cir. 2023) (noting that “the textual and policy-based underpinnings of qualified immunity have generated debate in recent years,” but also observing that “whether the doctrine should continue in its current form . . . is not within [the lower courts’] purview”).Show More presidential removal of executive officials,21 21.At the time this Article went to press, the Court had not yet overturned its precedent allowing for congressional restrictions on removal, but it had narrowly interpreted that precedent, and some Justices had called for its reversal. See, e.g., Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2211–12 (2020) (Thomas, J., concurring in part and dissenting in part, joined by Gorsuch, J.) (arguing for overruling Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and claiming that the Court has already “repudiated almost every aspect” of that decision). The Court has also stayed district court rulings that relied on Humphrey’s Executor to prohibit President Trump from removing members of various federal agencies, including the National Labor Relations Board (“NLRB”) and the Merit Systems Protection Board (“MSPB”). See Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025). In September 2025, the Court finally granted certiorari to decide whether to overturn Humphrey’s Executor. See Trump v. Slaughter, Nos. 25A264, 25-332, 2025 WL 2692050, at *1 (U.S. Sept. 22, 2025).Show More congressional delegations of authority to the executive branch,22 22.Compare Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2105 (2004) (noting that, despite the Supreme Court’s unwillingness to enforce the nondelegation doctrine up to that point, “lower courts at irregular intervals persist in invalidating federal legislation on nondelegation grounds, resulting in a continuing trickle of cases reaching the Supreme Court”), with Am. Inst. for Int’l Steel, Inc. v. United States, 806 F. App’x 982, 990 (Fed. Cir. 2020) (“We will not project an overruling of the delegation-doctrine standard . . . .”).Show More and Article III standing.23 23.That is true as to both state standing and private party standing. See infra Section II.A. Similar issues also arise in the context of the political question doctrine, see Curtis A. Bradley & Eric A. Posner, The Real Political Question Doctrine, 75 Stan. L. Rev.1031, 1034 (2023) (discussing how the doctrine has had a vibrant life in the lower courts, even after the Supreme Court has been reluctant to apply the doctrine), and the Seventh Amendment, see Samuel L. Bray, Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467, 478–82 (2022).Show More Accordingly, our theoretical analysis should help guide both the Supreme Court and the lower federal judiciary in approaching disfavored precedent across a host of issue areas. We also hope to spur additional empirical study of the relationship between the Supreme Court and the lower federal courts.

Our analysis proceeds as follows. Part I describes the theories and values that underlie a scheme of vertical precedent. Part II explains the concept of “disfavored precedent” and describes our taxonomy of five approaches that the Justices may use to signal that a precedent is disfavored. Part III provides our case studies and empirical findings. Finally, Part IV builds on the theoretical framing and empirical work to argue that, under a decisional authority model, there are limits to the manner in which the Supreme Court may properly undermine its own handiwork.

  1.  See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). ↑
  2.  See infra Section III.A. ↑
  3.  142 S. Ct. 2407, 2427–28 (2022). The dissenters understood Kennedy as the first official overruling of the Lemon test. See id. at 2434, 2447, 2449 (Sotomayor, J., dissenting). ↑
  4.  See 403 U.S. 388, 395–97 (1971). ↑
  5.  See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); infra Section III.B. ↑
  6.  See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844–45, 865 (1984). ↑
  7.  See infra Section III.C. ↑
  8.  Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2252, 2272 (2024). ↑
  9.  See, e.g., Rachel Bayefsky, Judicial Institutionalism, 109 Cornell L. Rev. 1297, 1305 (2024) (arguing that “it can be institutionally beneficial for judges” to engage in “stealth overruling”); Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 4–5 (2010) (criticizing “stealth overruling”); Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 Va. L. Rev. 865, 872 (2019) (criticizing the approach of confining a precedent to its facts); Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1865–66 (2014) [hereinafter Re, Narrowing in the Court] (defending “narrowing”); Bill Watson, Obstructing Precedent, 119 Nw. U. L. Rev. 259, 263–64 (2024) (offering a limited defense of “obstructing” precedent). ↑
  10.  For recent examples, see Labrador v. Poe, 144 S. Ct. 921, 927 (2024) (Gorsuch, J., concurring in the grant of stay, joined by Thomas & Alito, JJ.) (“Lower courts would be wise to take heed.”); United States v. Texas, 143 S. Ct. 1964, 1977 (2023) (Gorsuch, J., concurring in the judgment, joined by Thomas & Barrett, JJ.) (suggesting that “lower courts should just leave that idea [of special solicitude for state standing] on the shelf in future” cases). ↑
  11.  See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev.

    817, 821–22 (1994) [hereinafter Caminker, Inferior Courts]; Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 6–7 (1994) [hereinafter Caminker, Precedent and Prediction]; Tara Leigh Grove, Sacrificing Legitimacy in a Hierarchical Judiciary, 121 Colum. L. Rev. 1555, 1563 (2021) [hereinafter Grove, Legitimacy]; Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 669 (2012); Richard M. Re, Narrowing Supreme Court Precedent From Below, 104 Geo. L.J. 921, 927 (2016) [hereinafter Re, Narrowing From Below]; Thomas P. Schmidt, Judicial Minimalism in the Lower Courts, 108 Va. L. Rev

    .

    829, 837–39 (2022). ↑

  12.  See infra Part III (describing these doctrinal changes). ↑
  13.  We describe in Part III our coding methodology for each doctrinal area. ↑
  14.  See infra Section II.B. ↑
  15.  We borrow the “authority” and “prediction” terms from Richard Re. See Re, Narrowing From Below, supra note 11, at 940. Evan Caminker has used the terms “precedent” and “proxy” models to embody the same basic distinction. See Caminker, Precedent and Prediction, supra note 11, at 4–6. ↑
  16.  See infra Section II.B. ↑
  17.  See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming that if “a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))). ↑
  18.  For examples, see infra notes 28–32 and accompanying text. ↑
  19.  See, e.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 636–37 (2007) (Scalia, J., concurring in the judgment) (calling for the overruling of Flast v. Cohen, 392 U.S. 83 (1968), rather than “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive”); infra Part III (noting calls to overrule other doctrines). ↑
  20.  See, e.g., Mack v. Yost, 63 F.4th 211, 226 & n.12 (3d Cir. 2023) (noting that “the textual and policy-based underpinnings of qualified immunity have generated debate in recent years,” but also observing that “whether the doctrine should continue in its current form . . . is not within [the lower courts’] purview”). ↑
  21.  At the time this Article went to press, the Court had not yet overturned its precedent allowing for congressional restrictions on removal, but it had narrowly interpreted that precedent, and some Justices had called for its reversal. See, e.g., Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2211–12 (2020) (Thomas, J., concurring in part and dissenting in part, joined by Gorsuch, J.) (arguing for overruling Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and claiming that the Court has already “repudiated almost every aspect” of that decision). The Court has also stayed district court rulings that relied on Humphrey’s Executor to prohibit President Trump from removing members of various federal agencies, including the National Labor Relations Board (“NLRB”) and the Merit Systems Protection Board (“MSPB”). See Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025). In September 2025, the Court finally granted certiorari to decide whether to overturn Humphrey’s Executor. See Trump v. Slaughter, Nos. 25A264, 25-332, 2025 WL 2692050, at *1 (U.S. Sept. 22, 2025). ↑
  22.  Compare Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2105 (2004) (noting that, despite the Supreme Court’s unwillingness to enforce the nondelegation doctrine up to that point, “lower courts at irregular intervals persist in invalidating federal legislation on nondelegation grounds, resulting in a continuing trickle of cases reaching the Supreme Court”), with Am. Inst. for Int’l Steel, Inc. v. United States, 806 F. App’x 982, 990 (Fed. Cir. 2020) (“We will not project an overruling of the delegation-doctrine standard . . . .”). ↑

  23.  That is true as to both state standing and private party standing. See infra Section II.A. Similar issues also arise in the context of the political question doctrine, see Curtis A. Bradley & Eric A. Posner, The Real Political Question Doctrine, 75 Stan. L. Rev.

    1031, 1034 (2023) (discussing how the doctrine has had a vibrant life in the lower courts, even after the Supreme Court has been reluctant to apply the doctrine), and the Seventh Amendment, see Samuel L. Bray, Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467, 478–82 (2022). ↑

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