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How Clear is “Clear”?

This Article proposes a new framework for evaluating doctrines that assign legal significance to whether a statutory text is “clear.” Previous scholarship has failed to recognize that such doctrines come in two distinct types. The first, which this Article calls evidence rules, instructs a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these evidence rules is whether adhering to it aids or impairs that search—the character of the evaluation is, in other words, mostly epistemic. The second type, which this Article calls decision rules, instead tells a court to decide a statutory case on some ground other than statutory meaning if, after considering all the available sources, what the statute means remains opaque. The idea underlying these decision rules is that if statutory meaning is uncertain, erring in some direction constitutes “playing it safe.” With each such doctrine, the question is thus whether erring in the identified direction really is “safer” than the alternative(s)—put differently, evaluation of these doctrines is fundamentally practical.

With the new framework in place, this Article then goes on to address the increasingly popular categorical objection to “clear” text doctrines. As this Article explains, the objection that nobody knows how clear a text has to be to count as “clear” rests partly on a misunderstanding of how “clarity” determinations work—such determinations are sensitive to context, including legal context, in ways critics of these doctrines fail to account for. In addition, the objection that “clear” text doctrines are vulnerable to willfulness or motivated reasoning is fair but, as this Article shows, applies with equal force to any plausible alternative.

Introduction

Everyone agrees that courts must adhere to “clear” or “plain” text.1 1.As a matter of positive law, that is. E.g., Universal Health Servs., Inc. v. United States, 579 U.S. 176, 192 (2016) (“[P]olicy arguments cannot supersede the clear statutory text.”); Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (“As in any case of statutory construction, our analysis begins with ‘the language of the statute.’ And where the statutory language provides a clear answer, it ends there as well.” (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992))); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95–96 (1820) (“The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction.”).Show More But what to do when a statute is “ambiguous” or its meaning is otherwise uncertain?2 2.Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation, in The Oxford Handbook of Language and Law 128, 128 (Peter M. Tiersma & Lawrence M. Solan eds., 2012) (observing that “[i]n a colloquial sense, both vagueness and ambiguity are employed generically to indicate indeterminacy,” but that “[i]n a more technical sense . . . ambiguity and vagueness are far more specific phenomena”).Show More Numerous legal doctrines condition the permissibility of some judicial action in a statutory case upon the statute at issue being less than “clear” or “plain.” Courts may, for example, defer to an administering agency (Chevron deference),3 3.Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).Show More avoid answering a constitutional question (constitutional avoidance),4 4.Crowell v. Benson, 285 U.S. 22, 62 (1932) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”).Show More or consider legislative history if a statutory text has more than one plausible meaning, but not otherwise.5 5.NLRB v. SW Gen., Inc., 137 S. Ct. 929, 941–42 (2017); Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”).Show More Taken together, these various doctrines make textual “clarity” (or, alternatively, “plainness”) the central organizing principle for much of our law of statutory interpretation.6 6.See William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1082 (2017) (“Interpretation isn’t just a matter of language; it’s also governed by law.”).Show More And, indeed, the same has been true (albeit to varying degrees7 7.See, e.g., United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543–44 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial [inspection].’” (first quoting Bos. Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928); and then quoting Helvering v. N.Y. Tr. Co., 292 U.S. 455, 465 (1934))).Show More) going back to Chief Justice Marshall, who remarked that where “words in the body of the statute” are “plain,” there is “nothing . . . left to construction,” but that where ambiguity remains, “the mind . . . seizes every thing from which aid can be derived.”8 8.United States v. Fisher, 6 U.S. (2 Cranch) 358, 385–86 (1805).Show More

Because it is a doctrinal “linchpin,”9 9.Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 257 (2010) (“Determinations of ambiguity are the linchpin of statutory interpretation.”).Show More a great deal often turns on whether a statutory text is “clear” (or “plain”) or not.10 10.Lawrence M. Solan, Pernicious Ambiguity in Contracts and Statutes, 79 Chi.-Kent L. Rev. 859, 861 (2004) (“Part of the problem is that the law has only two ways to characterize the clarity of a legal text: It is either plain or it is ambiguous. The determination is important.”).Show More Perhaps for that reason, however, scholars and jurists have started to question whether it makes sense, either in principle or as a matter of practice, to assign so much importance to clarity determinations. There are those who have asked why courts should “seize” that “from which aid can be derived” only if the text is “ambiguous.”11 11.See William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 547 (2017); Adam M. Samaha, If the Text Is Clear—Lexical Ordering in Statutory Interpretation, 94 Notre Dame L. Rev. 155, 177 (2018).Show More Or, as Justice Stevens put it, “[W]hy . . . confine ourselves to . . . the statutory text if other tools of statutory construction provide better evidence”?12 12.Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 106 (2007) (Stevens, J., concurring).Show More Others, like Justice Kavanaugh, are even more skeptical and query whether we even know what it means to say that a statutory text is “clear.”13 13.See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)).Show More Going further still, Judge Easterbrook asserts with characteristic bluntness: “There is no metric for clarity.”14 14.Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 62 (1988) (emphasis added).Show More

This Article attempts to clarify15 15.(Ha ha.)Show More the increasingly dogmatic discussion surrounding the range of “clear” text doctrines.16 16.This Article addresses doctrines that assign significance to the “clarity” of statutory text, as opposed to clarity of the law more generally. See Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1505–07 (2019) (addressing the latter). On the relevance of that distinction, see infra notes 162–67 and accompanying text.Show More As it explains, in working through the question of “how clear is clear enough?” we need to ascertain first what type of clarity we are talking about. As such, it is important to note that clarity doctrines can actually be sorted into two distinct types, with largely distinct concerns associated with each. The first type, which operates as evidence rules, raises largely epistemological concerns to the extent that they structure a court’s inquiry into what a statute means.17 17.See infra Section I.A.Show More Because they organize a court’s search for statutory meaning, the concerns associated with this type of doctrine are largely epistemological—they function, in other words, to help judges form true beliefs about what statutes mean. More specifically, these doctrines tell courts to “start with the text,”18 18.Adam M. Samaha, Starting with the Text—On Sequencing Effects in Statutory Interpretation and Beyond, 8 J. Legal Analysis 439, 440 (2016).Show More and to consider additional sources of statutory meaning only if absolutely necessary.19 19.Here and throughout, this Article uses the phrase “statutory meaning” to refer to the communicative content expressed by statutory text as used—roughly, Congress’s apparent communicative intention (or, alternatively, the conventional meaning of the language as used in the relevant context). See Mitchell N. Berman, The Tragedy of Justice Scalia, 115 Mich. L. Rev. 783, 796–99 (2017) (reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997)) (distinguishing communicative intention from other forms of intention); see also Richard H. Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1246–48 (2015) (calling this a statute’s “contextual” meaning). This Article takes no position on how best to conceive of Congress’s communicative intention (e.g., actual or “objectified”) or how best to identify it (e.g., whether to consider legislative history).Show More For reasons this Article explains, this sort of lexical ordering of evidence hinders an investigation except in unusual circumstances,20 20.See infra notes 43, 51 and accompanying text.Show More which is why evidence rules need to be carefully contained to such circumstances.

The second type of “clear” text doctrines operates, by contrast, as decision rules, instructing a court how to decide a statutory case when, despite its best efforts, it is not sure what the statute at issue means.21 21.See infra Section I.B.Show More In other words, the function of the second type of doctrine is not to help determine the meaning of a statute, but rather to provide guidance for how to decide a statutory case once it becomes apparent that the meaning of the statute at issue is not clear. The basic premise underlying decision rules is that, under conditions of uncertainty, sometimes erring in a particular direction constitutes “playing it safe.”22 22.Here and throughout, this Article uses the term “uncertainty” in a colloquial sense, encompassing both “risk” and “uncertainty” in the technical, decision-theoretic senses of those terms. See Daniel M. Hausman & Michael S. McPherson, Economic Analysis and Moral Philosophy 30–31 (1996) (contrasting situations of “risk,” in which the probabilities of the various possible outcomes are known, and situations of “uncertainty,” in which those probabilities are unknown).Show More The concerns associated with these doctrines are, in light of that premise, mostly practical. In each instance, the question is whether a court’s erring in the identified direction is actually “safer” than acting on its “best guess” or, alternatively, erring in some other direction. Is it, for example, safer to err in the direction of letting elected officials, via administrative agencies, decide how to resolve a case, or would this be a costly mistake, leading us down the road to administrative “tyranny”?23 23.Cf. City of Arlington v. FCC, 569 U.S. 290, 314–15 (2013) (Roberts, C.J., dissenting) (acknowledging that while it may be hyperbolic to describe Chevron deference as “the very definition of tyranny,” too much deference to administrative agencies may pose serious risks).Show More

Using the basic distinction between evidence rules and decision rules, this Article develops a framework for assessing individual “clear” text doctrines that is both completely new and also easy to administer. Within that framework, one asks first whether a given doctrine manages evidence in a determination of the meaning of a statute or, instead, manages uncertainty about how to proceed once the quest for meaning has come up short. If the doctrine manages evidence, one then goes on to determine whether the type of evidence it manages has some or all of the special characteristics that make lexical ordering of evidence epistemically sensible. If, alternatively, the doctrine manages uncertainty, one instead evaluates the risk analysis that underlies it: Is one type of mistake really costlier than the other, as the doctrine presupposes, and, if so, to what degree?

In addition, the distinction between evidence rules and decision rules provides a principled basis for answering long-standing questions concerning the relationship between different “clear” text doctrines—in particular, the order in which such doctrines should be applied.24 24.See Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up, 92 Notre Dame L. Rev. 2053, 2063 (2017) (“It remains unanswered whether a policy canon is still relevant if legislative history alone would clarify statutory language.”); James J. Brudney, Canon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 Calif. L. Rev. 1199, 1202 (2010) (worrying that the “lack of an intelligible framework for ordering the canons renders them distinctly more susceptible to judicial manipulation than other interpretive resources”).Show More As this Article explains, because decision rules help manage uncertainty that remains after the search for statutory meaning, it will almost always make sense for courts to apply any relevant evidence rule (e.g., the conditional admissibility of legislative history or Skidmore) before determining whether a statute is or is not “clear” for purposes of some decision rule (e.g., the rule of lenity or Chevron).25 25.See infra Sections III.C–D (discussing interactions between the rules articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and Skidmore v. Swift & Co., 323 U.S. 134 (1944)).Show More So understood, perhaps the most important implication for administrative law of drawing the distinction between evidence rules and decision rules is that doing so necessitates a rethinking of the relationship between the Skidmore and Chevron doctrines as complements rather than alternatives. In other words, Skidmore cannot coherently be thought of as a fallback option should Chevron cease to be treated as law, as is widely assumed.26 26.See, e.g., Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (Gorsuch, J., dissenting from denial of certiorari) (arguing that “the aggressive reading of Chevron has more or less fallen into desuetude” and “the whole project deserves a tombstone no one can miss”); James Romoser, In an Opinion that Shuns Chevron, The Court Rejects a Medicare Cut for Hospital Drugs, SCOTUSblog (Jun. 15, 2022, 2:24 PM), https://www.scotusblog.com/2022/06/in-an-opinion-that-shuns-chevron-the-court-rejects-a-medicare-cut-for-hospital-drugs/ [https://per‌ma.cc/XLW3-JYHR] (observing that “there might not be five votes to scrap Chevron officially, but the court could tacitly stop deploying it”). But see Nathan Richardson, Deference is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 516–23 (2021) (arguing that Chevron is unlikely to be formally overturned).Show More

By itself, attending to the distinction between evidence rules and decision rules does not resolve the question of how clear a text has to be for purposes of various doctrines, or, as Justice Gorsuch put it, “How much ambiguity is enough?”27 27.Transcript of Oral Argument at 71–72, Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022) (No. 20-1114).Show More Implicit in Justice Gorsuch’s question is an increasingly pervasive objection that all “clear” text doctrines are troubling insofar as there is no consensus among judges as to how clear a statutory text has to be to count as “clear.”28 28.See Meredith A. Holland, Note, The Ambiguous Ambiguity Inquiry: Seeking to Clarify Judicial Determinations of Clarity Versus Ambiguity in Statutory Interpretation, 93 Notre Dame L. Rev. 1371, 1372 (2018) (“[T]here is no established method governing the judge’s threshold determination of ambiguity versus clarity. In fact, there is no consistent definition of ambiguity.”); Frank H. Easterbrook, The Absence of Method in Statutory Interpretation, 84 U. Chi. L. Rev. 81, 90 (2017) (“[T]he Justices do not agree on what ‘ambiguity’ means for purposes of the rule [of lenity].”); Jeffrey A. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1082 (2016) (noting “lurking questions about how hard courts ought to work before deciding whether a statute is clear”); Kavanaugh, supra note 13, at 2138 (“The simple and troubling truth is that no definitive guide exists for determining whether statutory language is clear or ambiguous.”); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 520 (“Here, of course, is the chink in Chevron’s armor—the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions (though still a better one than what it supplanted). How clear is clear?”).Show More Beyond that, many fear that because it is easy for judges to exaggerate or understate—whether consciously or unconsciously—how clear a text is, such doctrines facilitate results-oriented decision-making and thus undermine public confidence in an impartial judiciary.29 29.See Kavanaugh, supra note 13, at 2138–39; Dan T. Coenen, The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review, 75 S. Cal. L. Rev. 1281, 1304 (2002) (“On other occasions, however, the Justices may reveal substantive policy preferences not in formulating rules, but in applying them.”); Easterbrook, supra note 14, at 62 (“[C]ourt[s] may choose when to declare the language of the statute ‘ambiguous.’”); see also Solan, supra note 10, at 859 (“The problem, perhaps ironically, is that the concept of ambiguity is itself perniciously ambiguous. People do not always use the term in the same way, and the differences often appear to go unnoticed.”); William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597–98 (1992) (suggesting that variation in the degree of clarity required reflects “the Court’s view of what is an important constitutional value,” as well as “the relative importance of different constitutional values”).Show More If “clarity” judgments are mere reflections of partisan attitudes, these critics suggest, adherence to “clear” text doctrines undermines the rule of law.

As this Article explains, the lack of a universal “clarity” standard should be both unsurprising and un-concerning.30 30.See infra Section II.A.Show More To say that a statutory text is “clear” is, in effect, to say that it is clear enough for present purposes. And since purposes vary from case to case—and, in particular, from doctrine to doctrine—so too, one should expect, does the degree of clarity required.31 31.As with “intention,” this Article takes no position on how best to conceive of or identify a legal doctrine’s underlying “purpose(s).” See, e.g., Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 Harv. L. Rev. 1924, 1944–47 (2018) (discussing Chevron in light of administrative law’s “internal morality”).Show More Relatedly, if judges disagree about how clear a text must be in some specific case, that is, at least very often, just a legal dispute about the purposes of the applicable doctrine.

On results-oriented decision-making, this Article argues that what critics have identified is, for the most part, the familiar and entirely general worry that, in close cases, judges can mischaracterize the law without serious reputational harm.32 32.See infra Section II.B.Show More While it is true that a judge can with a straight face (and, perhaps, a clean conscience) insist that a very likely reading of a statute is “clearly” correct (or vice versa), it is equally easy for a judge to declare a reading that is somewhat unlikely to be “more likely than not.” As such, by increasing the probability threshold a reading must satisfy for a court to enforce it from the typical “more likely than not” to the more demanding “clear,” “clarity” doctrines do nothing to increase opportunity for judicial willfulness or motivated reasoning. What they do instead is merely shift the site of plausible argumentation.

This Article has three Parts. Part I distinguishes between two types of “clear” text doctrines, evidence rules and decision rules, identifying concerns specific to each. Part II considers common objections to “clear” text doctrines generally, explaining why those objections are either misguided or generic. Part III shows this Article’s proposed framework in action, assessing various familiar “clear” text doctrines, with some passing the assessment and some not.

  1.  As a matter of positive law, that is. E.g., Universal Health Servs., Inc. v. United States, 579 U.S. 176, 192 (2016) (“[P]olicy arguments cannot supersede the clear statutory text.”); Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (“As in any case of statutory construction, our analysis begins with ‘the language of the statute.’ And where the statutory language provides a clear answer, it ends there as well.” (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992))); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95–96 (1820) (“The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction.”). ↑
  2.  Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation, in The Oxford Handbook of Language and Law 128, 128 (Peter M. Tiersma & Lawrence M. Solan eds., 2012) (observing that “[i]n a colloquial sense, both vagueness and ambiguity are employed generically to indicate indeterminacy,” but that “[i]n a more technical sense . . . ambiguity and vagueness are far more specific phenomena”). ↑
  3.  Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). ↑
  4.  Crowell v. Benson, 285 U.S. 22, 62 (1932) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”). ↑
  5.  NLRB v. SW Gen., Inc., 137 S. Ct. 929, 941–42 (2017); Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”). ↑
  6.  See William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1082 (2017) (“Interpretation isn’t just a matter of language; it’s also governed by law.”). ↑
  7.  See, e.g., United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543–44 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial [inspection].’” (first quoting Bos. Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928); and then quoting Helvering v. N.Y. Tr. Co., 292 U.S. 455, 465 (1934))). ↑
  8.  United States v. Fisher, 6 U.S. (2 Cranch) 358, 385–86 (1805). ↑
  9.  Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 257 (2010) (“Determinations of ambiguity are the linchpin of statutory interpretation.”). ↑
  10.  Lawrence M. Solan, Pernicious Ambiguity in Contracts and Statutes, 79 Chi.-Kent L. Rev. 859, 861 (2004) (“Part of the problem is that the law has only two ways to characterize the clarity of a legal text: It is either plain or it is ambiguous. The determination is important.”). ↑
  11.  See William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 547 (2017); Adam M. Samaha, If the Text Is Clear—Lexical Ordering in Statutory Interpretation, 94 Notre Dame L. Rev. 155, 177 (2018). ↑
  12.  Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 106 (2007) (Stevens, J., concurring). ↑
  13.  See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)). ↑
  14.  Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 62 (1988) (emphasis added). ↑
  15.  (Ha ha.) ↑
  16.  This Article addresses doctrines that assign significance to the “clarity” of statutory text, as opposed to clarity of the law more generally. See Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1505–07 (2019) (addressing the latter). On the relevance of that distinction, see infra notes 162–67 and accompanying text. ↑
  17.  See infra Section I.A. ↑
  18.  Adam M. Samaha, Starting with the Text—On Sequencing Effects in Statutory Interpretation and Beyond, 8 J. Legal Analysis 439, 440 (2016). ↑
  19.  Here and throughout, this Article uses the phrase “statutory meaning” to refer to the communicative content expressed by statutory text as used—roughly, Congress’s apparent communicative intention (or, alternatively, the conventional meaning of the language as used in the relevant context). See Mitchell N. Berman, The Tragedy of Justice Scalia, 115 Mich. L. Rev. 783, 796–99 (2017) (reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997)) (distinguishing communicative intention from other forms of intention); see also Richard H. Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1246–48 (2015) (calling this a statute’s “contextual” meaning). This Article takes no position on how best to conceive of Congress’s communicative intention (e.g., actual or “objectified”) or how best to identify it (e.g., whether to consider legislative history). ↑
  20.  See infra notes 43, 51 and accompanying text. ↑
  21.  See infra Section I.B. ↑
  22.  Here and throughout, this Article uses the term “uncertainty” in a colloquial sense, encompassing both “risk” and “uncertainty” in the technical, decision-theoretic senses of those terms. See Daniel M. Hausman & Michael S. McPherson, Economic Analysis and Moral Philosophy 30–31 (1996) (contrasting situations of “risk,” in which the probabilities of the various possible outcomes are known, and situations of “uncertainty,” in which those probabilities are unknown). ↑
  23.  Cf. City of Arlington v. FCC, 569 U.S. 290, 314–15 (2013) (Roberts, C.J., dissenting) (acknowledging that while it may be hyperbolic to describe Chevron deference as “the very definition of tyranny,” too much deference to administrative agencies may pose serious risks). ↑
  24.  See Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up, 92 Notre Dame L. Rev. 2053, 2063 (2017) (“It remains unanswered whether a policy canon is still relevant if legislative history alone would clarify statutory language.”); James J. Brudney, Canon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 Calif. L. Rev. 1199, 1202 (2010) (worrying that the “lack of an intelligible framework for ordering the canons renders them distinctly more susceptible to judicial manipulation than other interpretive resources”). ↑
  25.  See infra Sections III.C–D (discussing interactions between the rules articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and Skidmore v. Swift & Co., 323 U.S. 134 (1944)). ↑
  26.  See, e.g., Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (Gorsuch, J., dissenting from denial of certiorari) (arguing that “the aggressive reading of Chevron has more or less fallen into desuetude” and “the whole project deserves a tombstone no one can miss”); James Romoser, In an Opinion that Shuns Chevron, The Court Rejects a Medicare Cut for Hospital Drugs, SCOTUSblog (Jun. 15, 2022, 2:24 PM), https://www.scotusblog.com/2022/06/in-an-opinion-that-shuns-chevron-the-court-rejects-a-medicare-cut-for-hospital-drugs/ [https://per‌ma.cc/XLW3-JYHR] (observing that “there might not be five votes to scrap Chevron officially, but the court could tacitly stop deploying it”). But see Nathan Richardson, Deference is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 516–23 (2021) (arguing that Chevron is unlikely to be formally overturned). ↑
  27.  Transcript of Oral Argument at 71–72, Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022) (No. 20-1114). ↑
  28.  See Meredith A. Holland, Note, The Ambiguous Ambiguity Inquiry: Seeking to Clarify Judicial Determinations of Clarity Versus Ambiguity in Statutory Interpretation, 93 Notre Dame L. Rev. 1371, 1372 (2018) (“[T]here is no established method governing the judge’s threshold determination of ambiguity versus clarity. In fact, there is no consistent definition of ambiguity.”); Frank H. Easterbrook, The Absence of Method in Statutory Interpretation, 84 U. Chi. L. Rev. 81, 90 (2017) (“[T]he Justices do not agree on what ‘ambiguity’ means for purposes of the rule [of lenity].”); Jeffrey A. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1082 (2016) (noting “lurking questions about how hard courts ought to work before deciding whether a statute is clear”); Kavanaugh, supra note 13, at 2138 (“The simple and troubling truth is that no definitive guide exists for determining whether statutory language is clear or ambiguous.”); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 520 (“Here, of course, is the chink in Chevron’s armor—the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions (though still a better one than what it supplanted). How clear is clear?”). ↑
  29.  See Kavanaugh, supra note 13, at 2138–39; Dan T. Coenen, The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review, 75 S. Cal. L. Rev. 1281, 1304 (2002) (“On other occasions, however, the Justices may reveal substantive policy preferences not in formulating rules, but in applying them.”); Easterbrook, supra note 14, at 62 (“[C]ourt[s] may choose when to declare the language of the statute ‘ambiguous.’”); see also Solan, supra note 10, at 859 (“The problem, perhaps ironically, is that the concept of ambiguity is itself perniciously ambiguous. People do not always use the term in the same way, and the differences often appear to go unnoticed.”); William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597–98 (1992) (suggesting that variation in the degree of clarity required reflects “the Court’s view of what is an important constitutional value,” as well as “the relative importance of different constitutional values”). ↑
  30.  See infra Section II.A. ↑
  31.  As with “intention,” this Article takes no position on how best to conceive of or identify a legal doctrine’s underlying “purpose(s).” See, e.g., Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 Harv. L. Rev. 1924, 1944–47 (2018) (discussing Chevron in light of administrative law’s “internal morality”). ↑

  32.  See infra Section II.B. ↑

Patents’ New Salience

The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling—including grants of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth—these problems may be insignificant in practice because patents are under-enforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the salience of patents by making patents easier and cheaper to find and enforce. These developments—including private platforms’ adjudication systems and AI-driven patent analytics—profoundly impact how the patent system functions and upend the system’s present dependence on under-enforcement and ignorance. Where most patents could previously be safely disregarded, formerly forgotten patents now matter.

This Article makes four contributions to the literature. First, this Article explores the technology that is rendering patents newly salient and explains how this alters basic assumptions underlying the patent system. Second, this Article demonstrates that although new technology is increasing the number of patents that can be reviewed and enforced, this transformation sometimes decreases the depth of patent analysis. Because it is difficult to draw conclusions about patent scope or validity without in-depth analysis, this omission means that technological review of patents may give patents unmerited influence.

Third, this Article shows a sharp divergence between public policy goals and private use of patents. For several decades, the courts and Congress have been reforming patent policy to decrease the impact of patents to alleviate concerns that patent owners hinder innovation by others. This Article demonstrates, in clear contrast to this goal, an increase in patent salience that is due exclusively to the use of private platforms and technologies. Further, the use of private platforms to find, analyze, and enforce patents creates the risk that choices made by companies and software developers will displace substantive patent law. Finally, this Article suggests policy reform, including ways to improve technology and patents and adjusted approaches to patent doctrine and theory.

Introduction

It is quite likely that you, the reader, have infringed a patent today. There are millions of in-force U.S. patents, and many cover routine, everyday behaviors. Perhaps you used a smartphone, which are covered by thousands of patents, and liability for infringement extends not just to the phone manufacturer but also to the consumer.1 1.Colleen Chien, Predicting Patent Litigation, 90 Tex. L. Rev. 283, 289 (2011); Gaia Bernstein, The Rise of the End User in Patent Litigation, 55 B.C. L. Rev. 1443, 1452–53 (2014).Show More Or you used Wi-Fi, also covered by many patents.2 2.Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991, 2027 (2007).Show More Alternatively, your infringing act may have been low-tech—playing on a swing3 3.U.S. Patent No. 6,368,227 (filed Nov. 17, 2000).Show More or throwing a stick,4 4.U.S. Patent No. 6,360,693 (filed Dec. 2, 1999).Show More for example. You were probably not aware that you took an action covered by a patent, but this is no defense to patent infringement, which is a strict liability tort and does not take intent into account.5 5.In re Seagate Tech., LLC, 497 F.3d 1360, 1368 (Fed. Cir. 2007).Show More

Fortunately, the vast majority of patents are never enforced so the likelihood that you will be sued for infringement is infinitesimally small.6 6.Mark A. Lemley, Rational Ignorance at the Patent Office, 95 Nw. U. L. Rev. 1495, 1497 (2001).Show More The patent system relies heavily on under-enforcement: if most patents were enforced, day-to-day activities would be impossible because the transaction costs required to find and license all relevant patents would be prohibitively high.7 7.Mark A. Lemley, Ignoring Patents, 2008 Mich. St. L. Rev. 19, 25. This is analogous to many other areas of law—torts, criminal law—where the system is characterized by pervasive under-enforcement. See Richard Abel, The Real Tort Crisis—Too Few Claims, 48 Ohio St. L.J. 443, 447 (1987); Richard Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 246 (1980).Show More Patent scholars, policy makers, and the U.S. Patent and Trademark Office (“USPTO” or “Patent Office”) all recognize that many potential problems with the patent system are avoided because patentees rarely enforce patents and infringers generally ignore patents.8 8.See, e.g., Jonathan M. Barnett, Property as Process: How Innovation Markets Select Innovation Regimes, 119 Yale L.J. 384, 392 (2009) (noting that criticisms of the subject-matter expansion of patents as excessive propertization are overblown because most patents are ignored); Tun-Jen Chiang, Fixing Patent Boundaries, 108 Mich. L. Rev. 523, 542 (2010) (suggesting that the notice functions of patent claims work poorly in part because competitors ignore patents); Lemley, supra note 6, at 1510–11 (arguing that low-cost, error-prone patent examination is rational because most patents are ignored).Show More

This Article argues that we are at the beginning of a technological shift that is changing this pattern of under-enforcement and ignorance.9 9.See infra Part II.Show More Because patent policy relies so heavily on ignorance and under-enforcement, the shift towards patent salience has important implications for both doctrinal and theoretical reform.10 10.See infra Part III.Show More

This shift from ignorance and under-enforcement to salience is caused by new technologies that make patents easier to find and use. This Article illustrates the shift with three case studies: First, automated freedom-to-operate algorithms, which are computer programs that take a desired endpoint and design around any relevant patents.11 11.See infra Section II.A.Show More Such a program was used, for instance, to suggest ways to avoid patents on remdesivir (VEKLURY®) in order to increase production during the COVID-19 pandemic.12 12.Sara Szymkuc et al., Computer-Generated “Synthetic Contingency” Plans at Times of Logistics and Supply Problems: Scenarios for Hydroxychloroquine and Remdesivir, 11 Chem. Sci. 6736, 6736 (2020).Show More Second, Amazon’s Utility Patent Neutral Evaluation program, a company-run system to adjudicate claims of patent infringement and remove infringing products from Amazon’s platform.13 13.Ganda Suthivarakom, Welcome to the Era of Fake Products, N.Y. Times: Wirecutter (Feb. 11, 2020), https://www.nytimes.com/wirecutter/blog/amazon-counterfeit-fake-produc‌ts/ [https://perma.cc/B3LJ-UACW].Show More The program provides fast and cheap ($4,000) opportunities for arbitration.14 14.Tammy Terry & Lisa Margonis, Unpacking Amazon’s Patent Infringement Evaluation Process, Law360 (Mar. 19, 2021), https://www.law360.com/articles/1366714/unpacking-amazon-s-patent-infringement-evaluation-process [https://perma.cc/TQ48-KTBY].Show More Third, analytics software that uses machine learning and artificial intelligence to produce patent landscape reports.15 15.Leonidas Aristodemou, Frank Tietze, Nikoletta Athanassopoulou & Tim Minshall, Exploring the Future of Patent Analytics: A Technology Roadmapping Approach, at Abstract (Univ. of Cambridge Ctr. for Tech. Mgmt., Working Paper No. 5, 2017).Show More These reports are detailed accounts of trends in patenting across a field that inform a varied set of decision makers—for example, a report on hydrogen fuel patents designed to help companies find collaborators and make investment decisions.16 16.Chem. Abstracts Serv., Am. Chem. Soc’y, Hydrogen Fuel: Insights into a Growing Market 12 (2019).Show More

With each of these new technologies, patents that would previously never have been enforced, licensed, or likely even read now impact behavioral choices. Because automated freedom-to-operate analyses show users how to avoid all patents in a field, a patent need simply exist to cause a response, even though many such patents would not—indeed could not—be enforced.17 17.See infra Subsection II.A.1.Show More In the case of Amazon’s program, the low cost of the program compared to litigation incentivizes additional enforcement, as does Amazon’s ability to reach beyond traditional jurisdictional limits.18 18.See infra Subsection II.B.1.Show More Further, by providing an easy way to search for products, Amazon’s platform makes it considerably simpler for patentees to find infringers.19 19.See infra Subsection II.B.1.Show More Patent landscape analyses provide information on all patents in a field so that decisions can be made based on a great breadth of patents.20 20.See infra Subsection II.C.1.Show More Patents that were formerly overlooked are now found and integrated into decision-making. Previously ignored, these patents are now impactful.

The technologically driven shift from under-enforcement to salience has created a second fundamental change in how patents are used: the greater impact of patents is accompanied by a move away from deep legal analysis. This shift is most stark with respect to patent validity. Granted patents can be found invalid, and indeed many are.21 21.35 U.S.C. § 282.Show More The mere presence of a patent therefore means little without some evaluation of its validity.22 22.Lemley, supra note 7, at 27.Show More But not all of the case studies highlighted in this Article evaluate validity.23 23.See infra Part II.Show More Amazon’s adjudication system explicitly excludes a validity analysis—a significant difference from litigation, where validity is an issue in almost every case.24 24.Terry & Margonis, supra note 14; Lemley, supra note 6, at 1502 (“Virtually every patent infringement lawsuit includes a claim that the patent is either invalid or unenforceable due to inequitable conduct (or commonly both).”).Show More Some algorithms that run automated freedom-to-operate analyses and create patent landscapes do not account for the possibility of invalidity nor do they discount patents of dubious validity.25 25.See infra Sections II.A, II.C.Show More Rather, each patent is given equal weight in the analysis.26 26.See infra Sections II.A, II.C.Show More Though technology allows analysis of more patents, the analysis can be cursory and blurs the major quality differences between patents.

The trend toward greater patent salience and the changes in how patents are analyzed have substantial implications for patent theory and policy. One notable example is the Patent Office’s “rational ignorance” approach to patent examination.27 27.Lemley, supra note 6, at 1497.Show More Examiners spend relatively little time reviewing each patent and make many mistakes, meaning that many invalid patents are granted.28 28.Id. at 1500.Show More This is justified because more careful examination would be expensive and, if most patents are ignored, these errors have little practical effect.29 29.See infra Section III.B.Show More If, however, more patents impact behavioral choices, the rational ignorance approach breaks down, particularly if new technology does little or no analysis of validity.30 30.See infra Section IV.C.Show More This Article highlights several additional policies and doctrines that are central to the patent system—including the lack of a research exception, methods by which remedies are determined, and the potential for a patent anticommons to block follow-on research—where potentially disastrous consequences are brushed aside on the grounds that patents are ignored.31 31.See infra Section IV.C.Show More

Another key consequence of patents’ new salience is that choices about patent impact are increasingly privatized, which creates concerns about the influence of private platforms and their divergence from public goals. First, the technological shift highlighted in this Article predominantly involves private platforms.32 32.See infra Part II.Show More When private platforms design algorithms and choose training data for patent analysis, they inevitably make choices about how to interpret and prioritize substantive law.33 33.See infra Section III.D.Show More To the extent that algorithmic output influences decisions and is not subject to judicial review, it raises the risk that private choices about enforcement mechanisms or platform design will displace substantive law.34 34.See infra Section III.D.Show More While these privatization concerns have been well-aired in the context of copyright law and other fields, the concerns apply with equal force to patent law.35 35.E.g., Matthew Sag, Internet Safe Harbors and the Transformation of Copyright Law, 93 Notre Dame L. Rev. 499, 499 (2017).Show More Moreover, to the extent that substantive patent law is woven into private designs, it is often in a black box without transparency about how and when patent law is incorporated into the analysis.36 36.See infra Section III.D. More specifically, technologies that rely on AI do not always disclose the data used to train the AI, making it difficult to predict bias in output. See, e.g., Shlomit Yanisky-Ravid & Sean K. Hallisey, “Equality and Privacy by Design”: A New Model of Artificial Intelligence Data Transparency via Auditing, Certification, and Safe Harbor Regimes, 46 Fordham Urb. L.J. 428, 474 (2019) (recommending increased disclosure of data inputs in order to prevent discrimination).Show More

Further, the increasing patent impact documented herein is in striking contrast to a countervailing trend in congressional and judicial action which is towards making patents less impactful.37 37.Paul Gugliuzza, Quick Decisions in Patent Cases, 106 Geo. L.J. 619, 622 (2018); Jonathan Masur, Patent Inflation, 121 Yale L.J. 470, 510 (2011).Show More In recent years, Congress and the courts have increased the difficulty of obtaining and enforcing patents, meaning that third parties can more safely ignore patents—a deliberate policy intended to alleviate some of the roadblocks that patents can pose to innovation and the economy.38 38.Gugliuzza, supra note 37, at 624.Show More This Article argues that private actors, in making patents more salient, are moving patent law away from values espoused by public actors.39 39.See infra Section III.C.Show More

Despite these challenges, technological developments in patent law are not inherently negative. Software’s ability to draw information from millions of patents is exciting and may improve patents’ ability to fulfill their disclosure function.40 40.One way in which patents incentivize innovation is by providing information about cutting-edge inventions to the public. E.g., Sean B. Seymore, The Teaching Function of Patents, 85 Notre Dame L. Rev. 621, 622 (2010).Show More It is important for e-commerce platforms to have some form of patent enforcement mechanism.41 41.Terry & Margonis, supra note 14.Show More But these technologies can be improved. This Article suggests avenues for using artificial intelligence (“AI”) to expand in-depth analysis of patents and also highlights where AI is unlikely to work.42 42.See infra Section IV.A.Show More The Article additionally recommends strategies to alter patents to better interface with AI.43 43.See infra Section IV.B.Show More And, doctrinally, the Article suggests reviewing the implications of patent law doctrine and theories such as rational ignorance, research exceptions, the application of damages and other remedies, and reliance on under-enforcement—all areas that may be impacted by the new salience of patents.44 44.See infra Section IV.C.Show More

The Article proceeds as follows. Part I explores why patents have historically been ignored and, for those few patents that are not, why in-depth analysis is essential to understand the enforceability of any patent. Part II provides three case studies of technologies that render patents newly salient. Part III turns to the implications of this shift towards technologically-driven patent impact (Section III.A). It further discusses the consequences of platforms that avoid in-depth patent analysis (Section III.B), the divergence between the public trend towards easier invalidation and the private trend towards easier enforcement (Section III.C), and the displacement of substantive law by private choices (Section III.D). Part IV suggests policy reform.

  1.  Colleen Chien, Predicting Patent Litigation, 90 Tex. L. Rev. 283, 289 (2011); Gaia Bernstein, The Rise of the End User in Patent Litigation, 55 B.C. L. Rev. 1443, 1452–53 (2014). ↑
  2.  Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991, 2027 (2007). ↑
  3.  U.S. Patent No. 6,368,227 (filed Nov. 17, 2000). ↑
  4.  U.S. Patent No. 6,360,693 (filed Dec. 2, 1999). ↑
  5.  In re Seagate Tech., LLC, 497 F.3d 1360, 1368 (Fed. Cir. 2007). ↑
  6.  Mark A. Lemley, Rational Ignorance at the Patent Office, 95 Nw. U. L. Rev. 1495, 1497 (2001). ↑
  7.  Mark A. Lemley, Ignoring Patents, 2008 Mich. St. L. Rev. 19, 25. This is analogous to many other areas of law—torts, criminal law—where the system is characterized by pervasive under-enforcement. See Richard Abel, The Real Tort Crisis—Too Few Claims, 48 Ohio St. L.J. 443, 447 (1987); Richard Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 246 (1980). ↑
  8.  See, e.g., Jonathan M. Barnett, Property as Process: How Innovation Markets Select Innovation Regimes, 119 Yale L.J. 384, 392 (2009) (noting that criticisms of the subject-matter expansion of patents as excessive propertization are overblown because most patents are ignored); Tun-Jen Chiang, Fixing Patent Boundaries, 108 Mich. L. Rev. 523, 542 (2010) (suggesting that the notice functions of patent claims work poorly in part because competitors ignore patents); Lemley, supra note 6, at 1510–11 (arguing that low-cost, error-prone patent examination is rational because most patents are ignored). ↑
  9.  See infra Part II. ↑
  10.  See infra Part III. ↑
  11.  See infra Section II.A. ↑
  12.  Sara Szymkuc et al., Computer-Generated “Synthetic Contingency” Plans at Times of Logistics and Supply Problems: Scenarios for Hydroxychloroquine and Remdesivir, 11 Chem. Sci. 6736, 6736 (2020). ↑
  13.  Ganda Suthivarakom, Welcome to the Era of Fake Products, N.Y. Times: Wirecutter (Feb. 11, 2020), https://www.nytimes.com/wirecutter/blog/amazon-counterfeit-fake-produc‌ts/ [https://perma.cc/B3LJ-UACW]. ↑
  14.  Tammy Terry & Lisa Margonis, Unpacking Amazon’s Patent Infringement Evaluation Process, Law360 (Mar. 19, 2021), https://www.law360.com/articles/1366714/unpacking-amazon-s-patent-infringement-evaluation-process [https://perma.cc/TQ48-KTBY]. ↑
  15.  Leonidas Aristodemou, Frank Tietze, Nikoletta Athanassopoulou & Tim Minshall, Exploring the Future of Patent Analytics: A Technology Roadmapping Approach, at Abstract (Univ. of Cambridge Ctr. for Tech. Mgmt., Working Paper No. 5, 2017). ↑
  16.  Chem. Abstracts Serv., Am. Chem. Soc’y, Hydrogen Fuel: Insights into a Growing Market 12 (2019). ↑
  17.  See infra Subsection II.A.1. ↑
  18.  See infra Subsection II.B.1. ↑
  19.  See infra Subsection II.B.1. ↑
  20.  See infra Subsection II.C.1. ↑
  21.  35 U.S.C. § 282. ↑
  22.  Lemley, supra note 7, at 27. ↑
  23.  See infra Part II. ↑
  24.  Terry & Margonis, supra note 14; Lemley, supra note 6, at 1502 (“Virtually every patent infringement lawsuit includes a claim that the patent is either invalid or unenforceable due to inequitable conduct (or commonly both).”). ↑
  25.  See infra Sections II.A, II.C. ↑
  26.  See infra Sections II.A, II.C. ↑
  27.  Lemley, supra note 6, at 1497. ↑
  28.  Id. at 1500. ↑
  29.  See infra Section III.B. ↑
  30.  See infra Section IV.C. ↑
  31.  See infra Section IV.C. ↑
  32.  See infra Part II. ↑
  33.  See infra Section III.D. ↑
  34.  See infra Section III.D. ↑
  35.  E.g., Matthew Sag, Internet Safe Harbors and the Transformation of Copyright Law, 93 Notre Dame L. Rev. 499, 499 (2017). ↑
  36.  See infra Section III.D. More specifically, technologies that rely on AI do not always disclose the data used to train the AI, making it difficult to predict bias in output. See, e.g., Shlomit Yanisky-Ravid & Sean K. Hallisey, “Equality and Privacy by Design”: A New Model of Artificial Intelligence Data Transparency via Auditing, Certification, and Safe Harbor Regimes, 46 Fordham Urb. L.J. 428, 474 (2019) (recommending increased disclosure of data inputs in order to prevent discrimination). ↑
  37.  Paul Gugliuzza, Quick Decisions in Patent Cases, 106 Geo. L.J. 619, 622 (2018); Jonathan Masur, Patent Inflation, 121 Yale L.J. 470, 510 (2011). ↑
  38.  Gugliuzza, supra note 37, at 624. ↑
  39.  See infra Section III.C. ↑
  40.  One way in which patents incentivize innovation is by providing information about cutting-edge inventions to the public. E.g., Sean B. Seymore, The Teaching Function of Patents, 85 Notre Dame L. Rev. 621, 622 (2010). ↑
  41.  Terry & Margonis, supra note 14. ↑
  42.  See infra Section IV.A. ↑
  43.  See infra Section IV.B. ↑

  44.  See infra Section IV.C. ↑

Judicial Review in Times of Emergency: From The Founding Through The Covid-19 Pandemic

[O]f course, Korematsu was wrong . . . . But you are kidding yourself if you think the same thing will not happen again.

– Justice Antonin Scalia1 1.Justice Antonin Scalia, Statement at University of Hawaii School of Law (Feb. 3, 2014), quoted in Debra Cassens Weiss, Scalia: Korematsu Was Wrong, but ‘You Are Kidding Yourself’ If You Think It Won’t Happen Again, A.B.A. J. (Feb. 4, 2014, 1:05 PM), https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won [https://perma.cc/D6YQ-CRND].Show More

Introduction

In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government brought the accused before a tribunal composed of nine military officers at the Old Arsenal Penitentiary in Washington, D.C.2 2.Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 174–75 (2017) (detailing procedures and proceedings).Show More The President’s order empowered the commission to set its own rules of procedure.3 3.Id. at 175.Show More By the ensuing rules, a majority vote of the officers could sustain a guilty verdict, a two-thirds majority vote could sustain a death sentence, and the only avenue for appeal was to seek a pardon from the President.4 4.Id.Show More

Appearing for the prosecution, Representative John Bingham—who one year later would serve as primary drafter of the Fourteenth Amendment—argued that the due process guarantee set forth in the Fifth Amendment to the Constitution was “only the law of peace, not of war.”5 5.Id. at 175–76.Show More “[I]n war,” he asserted, “it must be, and is, to a great extent, inoperative and disregarded.”6 6.Id. at 176; see also Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 89–98 (2013) (detailing the arguments of Bingham and others in relation to the applicability of the U.S. Constitution in times of war).Show More

Counsel for the accused conspirators argued that they deserved a jury trial in a proper court of law. Specifically, Maryland Senator Reverdy Johnson argued that fundamental liberties are “more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other.”7 7.Magliocca, supra note 6, at 94.Show More It followed, in his view, that only members of the United States military could be tried by a military commission. Given that the courts were open and operating in the District, he contended, the defendants were entitled to a jury trial with the full panoply of procedural protections set forth in the Bill of Rights.8 8.Id.Show More

But Bingham was not finished. Bingham also cited as legal sanction for the military trials President Lincoln’s earlier declarations of martial law and suspension of habeas corpus that had followed under legislation enacted by the United States Congress in 1863.9 9.Id. at 95–96.Show More More generally, during wartime, he contended, “the rights of each citizen, as secured in time of peace, must yield to the wants, interests, and necessities of the nation.”10 10.Id. at 96.Show More

As every armchair Civil War historian knows, Bingham’s arguments prevailed on that occasion. The military commission proceeded to convict all eight defendants on various conspiracy-related charges,11 11.These included the charge of traitorously conspiring to commit murder, a crime not codified in federal law but one that had been announced by the military officers for the case at hand. Id. at 98–99.Show More sentencing four to death, three to life terms, and one to a six-year prison term.12 12.Id. at 99–102.Show More Days later, on July 7, 1865, the government hanged the four given capital sentences.13 13.Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L. Rev. 609, 629 (2012).Show More This happened despite the filing by one of the condemned, Mary Surratt, of an overnight habeas petition reiterating Senator Johnson’s arguments, which was thwarted by the personal intervention of President Johnson.14 14.Tyler, supra note 2, at 177.Show More

Just one year later and with the Civil War effectively over, in Ex parte Milligan, the Supreme Court of the United States rejected the notion that military courts could try civilians in states “where the courts are open and their process unobstructed.”15 15.Ex parte Milligan, 71 U.S. (4 Wall.) 2, 31–32, 121 (1866).Show More In so doing, the Court rebuffed the government’s argument that the Bill of Rights constituted “peace provisions” that “like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law.”16 16.Id. at 20 (replicating government’s argument).Show More Instead, Milligan championed the following proposition: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”17 17.Id. at 120–21. For more on Milligan and the trial of the Lincoln conspirators, see Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 Colum. L. Rev. 323, 394–457 (2018).Show More

It is an inspiring passage. But the track record over the course of American history seems to suggest otherwise. More often than not, Bingham’s arguments have prevailed when courts have reviewed government actions taken during times of war and emergency. Whether the courts expressly say the Constitution means something different in such times, or say the political branches deserve extra deference during such emergencies, or say that during such times the judiciary should stay its hand entirely, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency. Whether deferring to President Lincoln’s blockade at the start of the Civil War,18 18.The Prize Cases, 67 U.S. (2 Black) 635, 670–71 (1863).Show More a state’s suspension of creditors’ remedies during the Great Depression,19 19.Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 416, 447–48 (1934).Show More or President Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II,20 20.See, e.g., Hirabayashi v. United States, 320 U.S. 81, 83, 85–89, 104–05 (1943); Korematsu v. United States, 323 U.S. 214, 215–18 (1944).Show More the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that would be viewed as flouting the Constitution during peacetime. All of this has been exacerbated, moreover, by the ever-expanding conceptions of war and emergency more generally.21 21.See, e.g., Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences 5, 136 (2012) (exploring how the concept of wartime has expanded dramatically over the course of American history, particularly in the hands of politicians); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 737 (2006) (exploring similar trends). This Article sometimes refers to “wars and emergencies”; to be clear, however, this Article conceives of wars as one subset of emergencies.Show More

It follows that studying emergencies has the potential to tell us something both about the judicial role and the Constitution itself. This is because such a study implicates a range of questions, including whether the Founding document, despite expressly accounting for the potential for war and emergency, is a compact the meaning of which turns on the state of national security.22 22.There are many wartime powers noted in the Constitution. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”); id. cls. 12–14 (empowering Congress “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces”); id. cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); id. § 9, cl. 2 (referencing the power to suspend habeas corpus).Show More That is, was Bingham correct that it means something different in times of crisis versus when the country is at peace? And what of the judicial role? Does it differ depending on such circumstances?

Although Bingham’s arguments most often have prevailed historically, there have been a handful of Supreme Court decisions, like Milligan, pushing back on the idea that the political branches deserve extensive deference to manage crises. Consider, in addition to Milligan, Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), in which the Supreme Court told President Truman that he could not seize the country’s steel mills that were about to strike during the height of the Korean War.23 23.Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 588–89 (1952).Show More The result is unsettled terrain, with many of the larger questions about the Constitution and judicial role in times of emergency having never been fully resolved.24 24.As explored below, Milligan and other examples of Supreme Court decisions that do not defer to the political branches have often come in the waning days of—or even after—the relevant emergency. See infra text accompanying notes 60–67.Show More Instead, well over two hundred years into our constitutional experiment, debates rage on as to the proper roles of the judiciary and our Founding document during such times.25 25.For a small selection of some of the relevant literature on point, see, e.g., Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337 (2015); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004); Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691 (2004); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993).Show More

With the COVID-19 pandemic and the extensive litigation it has spurred targeting regulation of conduct deemed dangerous to public health, there is a new chapter to add to the mix. And it is a very interesting one. In several cases, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where such rules have intersected with the exercise of religion, but also in the areas of property rights and separation of powers. It has done so, moreover, often in the context of its so-called “shadow docket”26 26.I believe the term originated with William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015). The rise of orders in such cases has been explored in detail by Stephen Vladeck. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 152–53 (2019). There is a debate over the appropriateness of the term “shadow docket,” but I will employ it here given that these are cases often without full briefing and argument in which, as the cases discussed below in Part II demonstrate, the Court has sometimes rendered highly consequential rulings that are not always clearly supported by existing precedent. This Article puts to the side the debate over whether the Court should be so active in this posture and whether it should be establishing new substantive law in these cases. Nonetheless, I tend to join camp with those who are critical of the Court on both fronts. See, e.g., id. at 156–60; see also Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (forthcoming 2023) (arguing that the Court’s use of the shadow docket is fundamentally inconsistent with its role in the judicial process and risks serious long-term institutional harm to the Court).Show More—its emergency application docket that fast-tracks cases to the Court without the benefit of full briefing and argument. This being said, a Court majority has also deferred to government decisions made in the context of the pandemic in several other contexts, including when reviewing abortion and prison policies.

All the same, the Court’s propensity to be so active of late invites a revival of the debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same. On one view, the Constitution means something different during times of emergency, insofar as the political branches effectively enjoy broader discretion to manage the country through such crises. On another view—and one that has controlled in some recent COVID-19-era decisions by the Supreme Court—any emergency context should not factor into how the Court assesses the constitutionality of government action. An example of this view may be found in Justice Gorsuch’s recent opinion voting to override a governor’s order setting capacity restrictions on religious worship to halt the spread of COVID-19.27 27.S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021).Show More There, he wrote, “[e]ven in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.”28 28.Id. at 718 (statement of Gorsuch, J.).Show More

This Article explores the role of judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic. It also surveys debates on either side of the competing visions of the Constitution and the judicial role during emergencies. Finally, the Article suggests that even if one has significant concerns over the processes by which the current Supreme Court has decided some of the recent pandemic cases and/or the underlying merits of the decisions rendered by the Court, there is much to welcome in recent opinions positing that emergencies do not automatically diminish the individual rights protections in the Constitution or, for that matter, the judicial role. All the same, the Article concludes by critiquing the inconsistency in the Court’s approach to its role during the pandemic. Further, it suggests that it is not so much a desire to revive the judicial role in times of emergency that is driving the searching review we have witnessed in some of the pandemic cases, but instead the proverbial tail that wags the dog. In short, many of the Justices seem far more driven by the particular merits of the cases than a consistent approach to judicial review in times of emergency. A better approach would transcend the merits of any given context to embrace a model of judicial review that remains consistent regardless of the underlying merits and, most of all, the existence—or not—of any kind of emergency.

  1.  Justice Antonin Scalia, Statement at University of Hawaii School of Law (Feb. 3, 2014), quoted in Debra Cassens Weiss, Scalia: Korematsu Was Wrong, but ‘You Are Kidding Yourself’ If You Think It Won’t Happen Again, A.B.A. J. (Feb. 4, 2014, 1:05 PM), https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won [https://perma.cc/D6YQ-CRND]. ↑
  2.  Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 174–75 (2017) (detailing procedures and proceedings). ↑
  3.  Id. at 175. ↑
  4.  Id. ↑
  5.  Id. at 175–76. ↑
  6.  Id. at 176; see also Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 89–98 (2013) (detailing the arguments of Bingham and others in relation to the applicability of the U.S. Constitution in times of war). ↑
  7.  Magliocca, supra note 6, at 94. ↑
  8.  Id. ↑
  9.  Id. at 95–96. ↑
  10.  Id. at 96. ↑
  11.  These included the charge of traitorously conspiring to commit murder, a crime not codified in federal law but one that had been announced by the military officers for the case at hand. Id. at 98–99. ↑
  12.  Id. at 99–102. ↑
  13.  Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L. Rev. 609, 629 (2012). ↑
  14.  Tyler, supra note 2, at 177. ↑
  15.  Ex parte Milligan, 71 U.S. (4 Wall.) 2, 31–32, 121 (1866). ↑
  16.  Id. at 20 (replicating government’s argument). ↑
  17.  Id. at 120–21. For more on Milligan and the trial of the Lincoln conspirators, see Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 Colum. L. Rev. 323, 394–457 (2018). ↑
  18.  The Prize Cases, 67 U.S. (2 Black) 635, 670–71 (1863). ↑
  19.  Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 416, 447–48 (1934). ↑
  20.  See, e.g., Hirabayashi v. United States, 320 U.S. 81, 83, 85–89, 104–05 (1943); Korematsu v. United States, 323 U.S. 214, 215–18 (1944). ↑
  21.  See, e.g., Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences 5, 136 (2012) (exploring how the concept of wartime has expanded dramatically over the course of American history, particularly in the hands of politicians); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 737 (2006) (exploring similar trends). This Article sometimes refers to “wars and emergencies”; to be clear, however, this Article conceives of wars as one subset of emergencies. ↑
  22.  There are many wartime powers noted in the Constitution. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”); id. cls. 12–14 (empowering Congress “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces”); id. cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); id. § 9, cl. 2 (referencing the power to suspend habeas corpus). ↑
  23.  Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 588–89 (1952). ↑
  24.  As explored below, Milligan and other examples of Supreme Court decisions that do not defer to the political branches have often come in the waning days of—or even after—the relevant emergency. See infra text accompanying notes 60–67. ↑
  25.  For a small selection of some of the relevant literature on point, see, e.g., Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337 (2015); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004); Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691 (2004); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993). ↑
  26.  I believe the term originated with William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015). The rise of orders in such cases has been explored in detail by Stephen Vladeck. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 152–53 (2019). There is a debate over the appropriateness of the term “shadow docket,” but I will employ it here given that these are cases often without full briefing and argument in which, as the cases discussed below in Part II demonstrate, the Court has sometimes rendered highly consequential rulings that are not always clearly supported by existing precedent. This Article puts to the side the debate over whether the Court should be so active in this posture and whether it should be establishing new substantive law in these cases. Nonetheless, I tend to join camp with those who are critical of the Court on both fronts. See, e.g., id. at 156–60; see also Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (forthcoming 2023) (arguing that the Court’s use of the shadow docket is fundamentally inconsistent with its role in the judicial process and risks serious long-term institutional harm to the Court). ↑
  27.  S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021). ↑

  28.  Id. at 718 (statement of Gorsuch, J.). ↑

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