Issue 1

Colorado River Abstention: A Practical Reassessment

When duplicative civil suits proceed simultaneously in both state and federal court, a waste of resources is bound to occur. Nevertheless, the Supreme Court has maintained that federal courts must typically retain jurisdiction over such concurrent litigation. Under the Colorado River abstention doctrine, only “exceptional circumstances,” beyond the mere pendency of a parallel state case, will permit a federal court to relinquish jurisdiction in favor of the state action. How have the lower federal courts responded to this mandate to take jurisdiction, given the inherent waste and confusion engendered by concurrent litigation? And is there a more coherent and efficient way to manage this symptom of our dual federal-state court system? This Note seeks to answer these questions by focusing on the practical application of Colorado River “on the ground” in the lower courts, a subject largely unexplored by the otherwise voluminous scholarship on federal abstention.

By surveying decades of cases involving Colorado River abstention in two federal courts of appeals and two district courts, this Note reaches a startling conclusion. Driven by a lack of guidance from the U.S. Supreme Court and a desire to rid their dockets of duplicative suits, the lower courts have taken wildly divergent approaches to Colorado River. The Second Circuit Court of Appeals, for example, has applied the doctrine rigidly, demanding that district courts retain jurisdiction in all but the most exceptional circumstances. Under pressure from this circuit precedent, judges in the Southern District of New York have frequently sought to “effectively” abstain via alternative means, simultaneously relinquishing federal jurisdiction and frustrating appellate review. When they instead attempt to proceed to judgement rather than effectively abstain, the result is typically (and unsurprisingly) a significant waste of judicial resources. On the other hand, the Seventh Circuit has taken a highly permissive view of Colorado River abstention, watering down the otherwise restrictive doctrine. Judges in the Northern District of Illinois have taken up this view with alacrity, abstaining pursuant to Colorado River in the vast majority of cases involving parallel state litigation, subject only to limited and deferential appellate review.

This inconsistent doctrinal development could hardly be described as desirable—a combination of informal abstention and judicial waste in the Second Circuit compared with virtually unfettered discretion to formally abstain in the Seventh Circuit. Thus, this Note concludes with a comprehensive proposal to bring greater structure and coherency to the doctrine while avoiding both of these negative results.

If you can think of a subject which is interrelated and inextricably combined with another subject, without knowing anything about or giving any consideration to the second subject, then you have a legal mind.1 1.Thurman Arnold, Fair Fights and Foul: A Dissenting Lawyer’s Life 20–21 (1965) (quoting Professor Thomas Reed Powell).Show More

Introduction

Of the numerous complexities inherent in the United States’ dual federal-state court system, the potential for concurrent litigation is one of the most anomalous and vexing. Concurrent litigation, as it will be discussed in this Note, occurs when adverse parties simultaneously litigate the same or similar claims in both federal and state court.2 2.See Josue Caballero, Note, Colorado River Abstention Doctrine in the Fifth Circuit: The Exceptional Circumstances of a Likely Reversal, 64 Baylor L. Rev. 277, 279–80 (2012) (describing this phenomenon in the state-federal context). Concurrent litigation can also arise between two federal courts, two state courts, or even within a single state court system. Allan D. Vestal, Repetitive Litigation, 45 Iowa L. Rev. 525, 525 (1960) [hereinafter Vestal, Repetitive Litigation]. These other forms of concurrent litigation are beyond the scope of this Note.Show More Because the subject-matter jurisdictions of these dual judicial systems are largely concurrent,3 3.Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962) (citing Clafin v. Houseman, 93 U.S. 130, 136 (1876)); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347, 1350 (2000) [hereinafter Redish, Intersystemic Redundancy].Show More this phenomenon is not uncommon. Though seemingly at odds with the U.S. Supreme Court’s insistence that the state and federal courts “are not foreign to each other, nor to be treated by each other as such, but as courts of the same country,”4 4.Howlett v. Rose, 496 U.S. 356, 367 (1990) (quoting Clafin, 93 U.S. at 137).Show More parallel state-federal litigation is nonetheless permitted, and duplicative cases are generally allowed to proceed in both courts simultaneously.5 5.Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’” (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910))).Show More Notwithstanding the inherently wasteful nature of such litigation,6 6.James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049, 1064 (1994) (describing concurrent litigation as “patently wasteful”).Show More the ability of a federal court to decline jurisdiction over a case that is duplicative of an ongoing state proceeding is, at least in theory, extremely narrow.7 7.Colo. River, 424 U.S. at 817–19 (explaining that federal courts should only defer to concurrent state court proceedings in “exceptional” circumstances and that “[o]nly the clearest of justifications will warrant dismissal”).Show More

As courts of limited jurisdiction, the federal courts possess only the jurisdiction conferred by the Constitution and congressional statute.8 8.Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).Show More While it is traditionally accepted that Congress retains plenary power to control the jurisdiction of the lower federal courts,9 9.Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 671–72 (1997) (“The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction.”). The canonical citation for that view (also known as the “traditional” view) is Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Velasco, supra, at 674–75.Show More whether those courts are required to exercise the jurisdiction given them is less certain.10 10.For examples of the differing views on this topic, compare Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) [hereinafter Redish, Separation of Powers] (arguing that federal courts have little discretion to decline jurisdiction conferred by Congress), with David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) (arguing for greater judicial discretion over jurisdiction).Show More Where state and federal courts enjoy overlapping jurisdiction, the answer to that question is governed partially by the abstention doctrines.11 11.See Leonard Birdsong, Comity and Our Federalism in the Twenty-First Century: The Abstention Doctrines Will Always Be with Us—Get Over It!!, 36 Creighton L. Rev. 375, 376 (2003).Show More Federal abstention law comprises a series of “judge-made” doctrines12 12.Zwickler v. Koota, 389 U.S. 241, 248 (1967); see also Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 824–25 (2008) (describing the abstention doctrines as examples of federal common law).Show More that “identify the circumstances in which federal courts deem it appropriate to refrain from adjudicating a case to permit some other body—typically a state court—to adjudicate it first.”13 13.Barrett, supra note 12, at 824; see also Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”).Show More

It is the most recently developed of these doctrines,14 14.The three earlier-developed abstention doctrines are also named after the cases in which they were first articulated. Pullman abstention, a relative of the doctrine of constitutional avoidance, governs situations in which a federal court can abstain to allow a state court to answer unsettled questions of state law that are relevant to the federal case and that may obviate the need to decide a difficult constitutional question. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Burford abstention permits federal courts to decline jurisdiction to avoid disrupting a complex state regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). Finally, Younger abstention prevents federal courts, absent a showing of bad faith or harassment, from enjoining ongoing state criminal or quasi-criminal proceedings. See Younger v. Harris, 401 U.S. 37, 54 (1971).Show More known as Colorado River abstention, that governs a federal court’s limited ability to refrain from exercising jurisdiction over cases involving concurrent litigation.15 15.Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817–19 (1976). Though the Supreme Court declined to describe the doctrine promulgated in Colorado River as a form of abstention, see id. at 817, there seems to be no principled basis for this distinction. Given that most lower court judges and several Supreme Court Justices have referred to the Colorado River doctrine as a version of abstention, for the sake of simplicity I will refer to it as such. See 17A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4247, at 471 nn.77–78 (3d ed. 2007) (collecting cases referring to the doctrine as Colorado River abstention).Show More As described by the Supreme Court in the eponymous case of Colorado River Water Conservation District v. United States,16 16.424 U.S. 800 (1976).Show More this doctrine is a carefully circumscribed exception to the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.”17 17.Id. at 817.Show More The Court acknowledged that considerations of judicial economy and efficiency could indeed permit a federal court to decline jurisdiction in this context, but it emphasized that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention” under the other abstention doctrines.18 18.Id. at 817–18. Note that declining jurisdiction in this context could constitute either a stay or dismissal of the federal case, because when a district court abstains pursuant to Colorado River it is assumed that there will be no further proceedings in the federal court except perhaps application of res judicata upon the state court’s resolution of the controversy. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983).Show More

Since its promulgation in 1976, Colorado River abstention has been the subject of significant scholarly commentary, both favorable and critical.19 19.It would be both impossible and unproductive to attempt an exhaustive survey of the literature on Colorado River abstention here. For representative examples of generally positive commentary, see Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); Gene R. Shreve, Pragmatism Without Politics—A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767 (1991); Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035 (1989); Shapiro, supra note 10. For more critical views, see Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing,” 40 Case W. Res. L. Rev. 1023 (1989) [hereinafter Redish, Judge-Made Abstention]; Donald L. Doernberg, “You Can Lead a Horse to Water . . .”: The Supreme Court’s Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 Case W. Res. L. Rev. 999 (1989); Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo. L.J. 99 (1986); Redish, Separation of Powers, supra note 10.Show More Though the academy has been quick to take sides on the propriety and usefulness of the doctrine, commentators have devoted scant attention to its function in practice. Most discussion of the topic has been theoretical, and there has been virtually no effort to systematically analyze how the doctrine is applied by the lower courts.20 20.Though a few such analyses have been undertaken, the vast majority considered the reaction of the lower courts in the immediate aftermath of the Court handing down Colorado River and hence are seriously outdated. See, e.g., Mullenix, supra note 19, at 128–49. For an example of a rare, recent attempt, see Caballero, supra note 2, at 277–79 (surveying cases in the Fifth Circuit and concluding that “[a] decision [by a district court] to abstain under Colorado River practically guarantees reversal” (footnote omitted)).Show More Without a picture of the practical import of Colorado River abstention, it is difficult to validate much of the scholarly commentary, both positive and negative. Given that the Supreme Court has scarcely addressed the topic in more than three decades,21 21.See infra notes 60–68 and accompanying text.Show More and hence the bulk of the doctrinal development has occurred in the lower courts, this gap in the literature is all the more significant.

The purpose of this Note is to begin closing that gap by analyzing the degree to which lower federal courts fulfill their “virtually unflagging obligation” in practice. To do so, I reviewed all opinions that referenced Colorado River abstention over the course of ten years, 2008–2018, in two federal district courts, the U.S. District Court for the Southern District of New York and the Northern District of Illinois. I did the same with twenty-five years of opinions, 1993–2018, issued by the appellate courts to which cases from those districts are appealed, the U.S. Courts of Appeals for the Second and Seventh Circuits.22 22.A few notes on methodology and scope will be helpful before proceeding. First, to find these cases, I searched both Bloomberg Law and Westlaw for the terms “Colorado River” and “abstention.” To ensure no cases were missed, I cross checked those results against the American Law Reports’ database of Colorado River abstention decisions, 193 A.L.R. Fed. 291. Second, the temporal scope of the court of appeals research was limited to cases decided between January 1, 1993, and January 1, 2018. Likewise, the district court research was limited to cases that met the following three criteria: (1) the case was filed in or transferred to either the Southern District of New York or the Northern District of Illinois on or after January 1, 2008; (2) the district court decided a question of Colorado River abstention prior to January 1, 2018; and (3) the case was not transferred to another district court. Third, the cases included in my analyses were limited to those in which the district court actually decided a question of Colorado River abstention. Cases in which Colorado River was provided as an alternative holding or was denied in dictum (e.g., after the court had already dismissed the case for failure to state a claim) were included and noted as such. On the other hand, cases in which the parties raised a question of Colorado River abstention but the court did not specifically address it were excluded. Likewise, cases which were ultimately decided under the more flexible doctrine of Brillhart/Wilton abstention—which governs a federal court’s discretion to decline jurisdiction over a declaratory judgment action in favor of a pending state proceeding—were excluded. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Finally, except where specifically noted, cases resolved under the doctrine of so-called “international comity” abstention, in which a federal court abstains in favor of concurrent litigation in the courts of a foreign nation, were also excluded. See, e.g., Freund v. Republic of France, 592 F. Supp. 2d 540, 565–66 (S.D.N.Y. 2008).Show More

Various factors informed my choice of both the courts and timeframe for analysis. With respect to courts, I chose the Southern District of New York and the Northern District of Illinois for three reasons. First, each handles a high volume of civil litigation and hears a wide variety of civil cases.23 23.In 2017, the Northern District of Illinois had the third largest civil docket among the federal district courts, while the Southern District of New York ranked fifth. See U.S. Courts, Statistical Tables for the Federal Judiciary, at tbl.C-1, U.S. District Courts—Civil Cases Filed, Terminated, and Pending During the 12-Month Period Ending June 30, 2017, https://­www.uscourts.gov/­sites/default/files/data_tables/stfj_c1_630.2017.pdf [https://perma.cc/RY­46-XXDT].Show More Second, the decisions of these courts are appealed to two different courts of appeals, enabling an investigation of differences in doctrinal development and application between circuits. Third, and most importantly, they appear to have heard the highest number of requests to abstain under Colorado River over the applicable timeframe.24 24.This was determined by searching both the published opinions and dockets of the federal district courts for four sets of terms related to Colorado River abstention and concurrent litigation. Each court was then ranked according to the combined number of results between opinions and docket for each search term. The Southern District of New York ranked first in every search, while the Northern District of Illinois ranked second, third, or fourth in each.Show More Thus, focusing on these two courts was intended to enable an analysis of a diversity of Colorado River cases decided by judges relatively familiar with the doctrine. The temporal scope was chosen partially for simple administrative feasibility and to capture the most recent doctrinal developments. Furthermore, as a portion of the research involved analyzing the time between a case being filed and reaching judgment,25 25.See infra note 119 and accompanying text.Show More it was essential that the analyzed cases be governed by a relatively consistent pleading standard. Therefore, the starting date was chosen so as to fall after the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly,26 26.550 U.S. 544 (2007).Show More which announced the heightened “plausibility” pleading standard for federal suits.27 27.Id. at 556–57.Show More

Analysis of these cases reveals stark trends. By and large, the application of Colorado River abstention in the lower courts is a story of confusion and unpredictability. Struggling with a paucity of guidance from the Supreme Court, the courts of appeals and their corresponding district courts have taken divergent approaches to the issue. Federal cases involving parallel state court litigation can expect wildly different treatment if filed in the Southern District of New York versus the Northern District of Illinois. Moreover, though they take nearly opposite approaches, neither court’s methodology has furthered the goals of either Colorado River abstention’s critics or its supporters. Indeed, it could be said that the worst fears of both sides of the argument have been realized—the doctrine as currently applied promotes judicial waste, creates uncertainty for judges and litigants alike, and often results in the parties being denied access to a federal forum without a sufficiently clear (or any) rationale.

This Note addresses these issues and considers their resulting implications in four parts. Part I provides necessary background. It briefly reviews the types and causes of concurrent state-federal litigation. It then traces the historical development in the lower federal courts of what would come to be known as Colorado River abstention. This Part concludes with an overview of the doctrine itself as promulgated by the Supreme Court in Colorado River and subsequent cases. Part II presents the findings of my lower court research. It summarizes the relevant doctrinal development in each circuit then analyzes, both quantitatively and qualitatively, the application of that doctrine in the district courts. Part III synthesizes the conclusions of the lower court research and proposes an alternative framework under which questions of Colorado River abstention could be decided. Given the unsatisfactory nature of the doctrine as currently applied, the purpose of this proposal is to create greater theoretical coherence and decisional consistency while simultaneously maximizing efficiency and conserving judicial resources. Part IV concludes by briefly addressing and rebutting potential objections to the proposal offered in Part III. In sum, this Note offers a practical reassessment of what could be a valuable doctrine of federal courts law but what currently represents little more than another source of needless litigation over jurisdiction.

  1. * J.D., University of Virginia School of Law, 2019. I am indebted to Professors John C. Jeffries, Jr. and Caleb Nelson for their helpful comments and discussions. Special thanks are also due to the members of the Virginia Law Review who assisted in the editing and preparation of this piece, including Nick Carey, Julian Kritz, Laura Toulme, Edward Wixler, and many others. Any errors are my own. ↑
  2. Thurman Arnold, Fair Fights and Foul: A Dissenting Lawyer’s Life 20–21 (1965) (quoting Professor Thomas Reed Powell). ↑
  3. See Josue Caballero, Note, Colorado River Abstention Doctrine in the Fifth Circuit: The Exceptional Circumstances of a Likely Reversal, 64 Baylor L. Rev. 277, 279–80 (2012) (describing this phenomenon in the state-federal context). Concurrent litigation can also arise between two federal courts, two state courts, or even within a single state court system. Allan D. Vestal, Repetitive Litigation, 45 Iowa L. Rev. 525, 525 (1960) [hereinafter Vestal, Repetitive Litigation]. These other forms of concurrent litigation are beyond the scope of this Note. ↑
  4. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962) (citing Clafin v. Houseman, 93 U.S. 130, 136 (1876)); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347, 1350 (2000) [hereinafter Redish, Intersystemic Redundancy]. ↑
  5. Howlett v. Rose, 496 U.S. 356, 367 (1990) (quoting Clafin, 93 U.S. at 137). ↑
  6. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’” (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910))). ↑
  7. James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049, 1064 (1994) (describing concurrent litigation as “patently wasteful”). ↑
  8. Colo. River, 424 U.S. at 817–19 (explaining that federal courts should only defer to concurrent state court proceedings in “exceptional” circumstances and that “[o]nly the clearest of justifications will warrant dismissal”). ↑
  9. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). ↑
  10. Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 671–72 (1997) (“The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction.”). The canonical citation for that view (also known as the “traditional” view) is Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Velasco, supra, at 674–75. ↑
  11. For examples of the differing views on this topic, compare Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) [hereinafter Redish, Separation of Powers] (arguing that federal courts have little discretion to decline jurisdiction conferred by Congress), with David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) (arguing for greater judicial discretion over jurisdiction). ↑
  12. See Leonard Birdsong, Comity and Our Federalism in the Twenty-First Century: The Abstention Doctrines Will Always Be with Us—Get Over It!!, 36 Creighton L. Rev. 375, 376 (2003). ↑
  13. Zwickler v. Koota, 389 U.S. 241, 248 (1967); see also Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 824–25 (2008) (describing the abstention doctrines as examples of federal common law). ↑
  14. Barrett, supra note 12, at 824; see also Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”). ↑
  15. The three earlier-developed abstention doctrines are also named after the cases in which they were first articulated. Pullman abstention, a relative of the doctrine of constitutional avoidance, governs situations in which a federal court can abstain to allow a state court to answer unsettled questions of state law that are relevant to the federal case and that may obviate the need to decide a difficult constitutional question. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Burford abstention permits federal courts to decline jurisdiction to avoid disrupting a complex state regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). Finally, Younger abstention prevents federal courts, absent a showing of bad faith or harassment, from enjoining ongoing state criminal or quasi-criminal proceedings. See Younger v. Harris, 401 U.S. 37, 54 (1971). ↑
  16. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817–19 (1976). Though the Supreme Court declined to describe the doctrine promulgated in Colorado River as a form of abstention, see id. at 817, there seems to be no principled basis for this distinction. Given that most lower court judges and several Supreme Court Justices have referred to the Colorado River doctrine as a version of abstention, for the sake of simplicity I will refer to it as such. See 17A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4247, at 471 nn.77–78 (3d ed. 2007) (collecting cases referring to the doctrine as Colorado River abstention). ↑
  17. 424 U.S. 800 (1976). ↑
  18. Id. at 817. ↑
  19. Id. at 817–18. Note that declining jurisdiction in this context could constitute either a stay or dismissal of the federal case, because when a district court abstains pursuant to Colorado River it is assumed that there will be no further proceedings in the federal court except perhaps application of res judicata upon the state court’s resolution of the controversy. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983). ↑
  20. It would be both impossible and unproductive to attempt an exhaustive survey of the literature on Colorado River abstention here. For representative examples of generally positive commentary, see Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); Gene R. Shreve, Pragmatism Without Politics—A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767 (1991); Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035 (1989); Shapiro, supra note 10. For more critical views, see Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing,” 40 Case W. Res. L. Rev. 1023 (1989) [hereinafter Redish, Judge-Made Abstention]; Donald L. Doernberg, “You Can Lead a Horse to Water . . .”: The Supreme Court’s Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 Case W. Res. L. Rev. 999 (1989); Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo. L.J. 99 (1986); Redish, Separation of Powers, supra note 10. ↑
  21. Though a few such analyses have been undertaken, the vast majority considered the reaction of the lower courts in the immediate aftermath of the Court handing down Colorado River and hence are seriously outdated. See, e.g., Mullenix, supra note 19, at 128–49. For an example of a rare, recent attempt, see Caballero, supra note 2, at 277–79 (surveying cases in the Fifth Circuit and concluding that “[a] decision [by a district court] to abstain under Colorado River practically guarantees reversal” (footnote omitted)). ↑
  22. See infra notes 60–68 and accompanying text. ↑
  23. A few notes on methodology and scope will be helpful before proceeding. First, to find these cases, I searched both Bloomberg Law and Westlaw for the terms “Colorado River” and “abstention.” To ensure no cases were missed, I cross checked those results against the American Law Reports’ database of Colorado River abstention decisions, 193 A.L.R. Fed. 291. Second, the temporal scope of the court of appeals research was limited to cases decided between January 1, 1993, and January 1, 2018. Likewise, the district court research was limited to cases that met the following three criteria: (1) the case was filed in or transferred to either the Southern District of New York or the Northern District of Illinois on or after January 1, 2008; (2) the district court decided a question of Colorado River abstention prior to January 1, 2018; and (3) the case was not transferred to another district court. Third, the cases included in my analyses were limited to those in which the district court actually decided a question of Colorado River abstention. Cases in which Colorado River was provided as an alternative holding or was denied in dictum (e.g., after the court had already dismissed the case for failure to state a claim) were included and noted as such. On the other hand, cases in which the parties raised a question of Colorado River abstention but the court did not specifically address it were excluded. Likewise, cases which were ultimately decided under the more flexible doctrine of Brillhart/Wilton abstention—which governs a federal court’s discretion to decline jurisdiction over a declaratory judgment action in favor of a pending state proceeding—were excluded. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Finally, except where specifically noted, cases resolved under the doctrine of so-called “international comity” abstention, in which a federal court abstains in favor of concurrent litigation in the courts of a foreign nation, were also excluded. See, e.g., Freund v. Republic of France, 592 F. Supp. 2d 540, 565–66 (S.D.N.Y. 2008). ↑
  24. In 2017, the Northern District of Illinois had the third largest civil docket among the federal district courts, while the Southern District of New York ranked fifth. See U.S. Courts, Statistical Tables for the Federal Judiciary, at tbl.C-1, U.S. District Courts—Civil Cases Filed, Terminated, and Pending During the 12-Month Period Ending June 30, 2017, https://­www.uscourts.gov/­sites/default/files/data_tables/stfj_c1_630.2017.pdf [https://perma.cc/RY­46-XXDT]. ↑
  25. This was determined by searching both the published opinions and dockets of the federal district courts for four sets of terms related to Colorado River abstention and concurrent litigation. Each court was then ranked according to the combined number of results between opinions and docket for each search term. The Southern District of New York ranked first in every search, while the Northern District of Illinois ranked second, third, or fourth in each. ↑
  26. See infra note 119 and accompanying text. ↑
  27. 550 U.S. 544 (2007). ↑
  28. Id. at 556–57. ↑

Statutory Federalism and Criminal Law

Federal law regularly incorporates state law as its own. And it often does so dynamically so that future changes to state laws affect how federal law will apply. For example, federal law protects against deprivations of property, but states largely get to define what “property” is. So when a state changes its property law, it automatically influences the effect of federal law. This interdependence mediates the tension that would otherwise arise when regulations from different governments overlap.

This Article is the first to identify how rare meaningful use of dynamic incorporation is in criminal law and also how this scarcity affects that law. With some notable exceptions, Congress ordinarily acts alone in criminal law. But using dynamic incorporation more often would redress two problems: the political inertia that makes reforming criminal laws exceptionally difficult and the limited accountability officials face for their enforcement decisions.

Marijuana laws provide a compelling example. Federal law flatly prohibits all marijuana use. But forty-six states now have laws that conflict with federal law, and ninety-three percent of Americans believe that medicinal marijuana should be lawful. The only legislation Congress has managed to pass in response to this conflict makes heavy use of dynamic incorporation. This example and others suggest that dynamic incorporation reduces congressional inertia in criminal law. What’s more, dynamic incorporation creates additional flexibility that prevents these kinds of conflicts from arising in the first place.

Dynamic incorporation also furthers separation-of-powers values. Local and federal enforcement officials have created a relationship that makes local officials a critical part of federal enforcement. This relationship is efficient, but it also enables local officials to evade state law constraints. Local officials can use this ability to, for example, worsen sentencing disparity. Dynamic incorporation rebalances power by giving state legislatures the opportunity to exercise greater oversight of enforcement discretion, enhancing enforcement accountability.

Federalism scholars have overlooked the most potent consequences of dynamic incorporation. Traditional federalism focused on identifying and defining the separate spheres of federal or state influence. And national federalism has focused on how states empower the federal government or shape policy by helping administer federal policies or programs. But this scholarship has missed the important consequences that occur when Congress enables states not only to administer federal programs or policies, but partly to define the existence and scope of those programs or policies—consequences that have particular potency in criminal law.

Introduction

In the aftermath of an enormous expansion in federal reach, a system of dual federal and state regulation now governs most major issues. But in many areas, Congress has not preempted state law. It instead has engaged in a form of federalism—statutory federalism—that enables state law to influence how and when federal law applies. The tax code and the Social Security Act, for example, provide federal benefits for married persons, but state law primarily determines who is married.1 1.E.g., 42 U.S.C. § 416(b), (f), (h) (2012) (defining “wife,” “husband,” and “married” by referencing state law as construed by state courts).Show More Federal law protects against deprivations of property, but states largely define what “property” is.2 2.Akhil Reed Amar, Foreword: Lord Camden Meets Federalism—Using State Constitutions to Counter Federal Abuses, 27 Rutgers L.J. 845, 854–55 (1996) (“Property is often—though admittedly not always—a state law concept, and one that changes over time. Thus, the compensation clause will indeed vary from state to state and year to year as the state-law tinged concept of property itself varies.”); see also Murr v. Wisconsin, 137 S. Ct. 1933, 1944–45 (2017) (narrowly ruling that some undefined limits constrain the ability of states to redefine property).Show More Even bankruptcy law, which constitutionally must be “uniform,”3 3.U.S. Const. art. I, § 8.Show More has enormous regional variance because state law determines whether a debt exists.4 4.Michael C. Dorf, Dynamic Incorporation of Foreign Law, 157 U. Pa. L. Rev. 103, 144 (2008).Show More

In these and other areas, federal law depends on application of state law and thus “incorporates” state law. And this incorporation often is “dynamic”: federal law automatically changes as the incorporated state laws are amended. The Constitution, for example, protects against depriving persons of forms of property that are modern, not only those forms that existed when the relevant constitutional provisions were ratified.

Dynamic incorporation eases the tension that would otherwise arise when different governments issue regulations that overlap. Its critical importance becomes apparent from those instances where it is not used. Marijuana law provides a striking example. State and federal marijuana laws are in stark conflict precisely because Congress has not created interdependence between those laws. As states have passed competing laws, those laws—unlike statutes using dynamic incorporation—have had no effect on when or how federal law applies.

The scholarship has overlooked the importance of dynamic incorporation, both in federalism and in criminal law. Federalism scholarship has not yet understood the relationship created when Congress enables state legislatures to determine how and when federal law will apply. Indeed, as Professor Abbe Gluck points out, the incentives for dynamic incorporation have remained “almost entirely unrecognized.”5 5.Abbe R. Gluck, Our [National] Federalism,123 Yale L.J. 1996, 2008 & n.45 (2014) [hereinafter Gluck, Our [National] Federalism].Show More Criminal law scholarship is similar. One scholar has discussed some drawbacks to federal reliance on state law.6 6.Wayne A. Logan, Creating a “Hydra in Government”: Federal Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, 74, 84–101 (2006).Show More But criminal law scholarship has not yet recognized that meaningful use of dynamic incorporation is rare in federal criminal law—at least, it is rare in those statutes that are routinely enforced.7 7.Some exceptions exist. Federal law considers state law for sentencing, but interdependence between the state and federal statutes that create substantive criminal liability rarely occurs for the statutes that are enforced. The one notable exception to this rule is the statute that bars people who have committed state felonies from possessing firearms. 18 U.S.C. § 922(g) (2018). But as this Article shows, even that exception employs only a weak, ineffective form of dynamic incorporation.Show More

This Article fills these gaps. It explains how dynamic incorporation expands upon the framework of “national federalism” often discussed by Professors Heather Gerken and Abbe Gluck—that is, statutory instead of constitutional federalism. It explains the consequential importance of dynamic incorporation and the incentives for using it. And then, focusing on criminal law, this Article establishes that Congress’s decision to enact criminal laws that overlap substantially with state law but not to create substantive interdependence between those regimes generates two serious problems. Greater use of dynamic incorporation would reform criminal law in two ways.

First, it would reduce the unique inertia that impedes reforming criminal law. In criminal law, political incentives ordinarily favor a one-way ratchet toward more criminal laws, making it more difficult than normal to reform or update older legislation.8 8.See notes infra 125­–133 and accompanying text.Show More Dynamic incorporation curbs this inertia by giving each of the fifty states an opportunity to update federal law. What’s more, bills that use dynamic incorporation generally face less political opposition because their allowance for greater regional variability means they are less likely to inconvenience key stakeholders. This fact means that these bills are more likely to become enacted. Both these measures give Congress greater flexibility. And applied to criminal law, these measures help ease the inertia that makes reforming criminal laws exceptionally difficult.

Again, the conflict over marijuana laws illustrates this concept well. Federal law prohibits all uses of marijuana, but the vast majority of Americans support at least medicinal use, so most states have passed laws that permit what federal law unequivocally prohibits. This author, like most major medical associations, remains skeptical of medicinal use because marijuana has not undergone the kind of scientific studies required for other medicinal products.9 9.See, e.g., Smart Approaches to Marijuana, https://learnaboutsam.org/the-issues/public-health-organizations-positions-on-medical-marijuana/ [https://perma.cc/VD97-3YR2] (com­piling the positions of national medical associations, such as the American Medical Asso­ciation); Alex Smith, As Missouri Voters Weigh Legalizing Medical Marijuana, Doctors Urge a Look at Its Health Risks, Nat’l Pub. Radio (Nov. 1, 2018), http://www.kbia.org/post/miss­ouri-voters-weigh-legalizing-medical-marijuana-doctors-urge-look-its-health-risks [https://­perma.cc/CZ3S-ZE2X] (explaining that many medical associations oppose modern medical marijuana initiatives because of a lack of evidence that marijuana operates in the way activists promise).Show More But regardless of the scientific debate, the conflict between state and federal law harms the rule of law and creates many collateral consequences.

Dynamic incorporation could have—and still can—mediate this conflict. The most robust form of dynamic incorporation is a federal statute that lets states create safe harbors against federal liability: if a person complies with state law, then they are not subject to federal enforcement. A federal law with this kind of provision would allow states to drag federal marijuana law slowly into conformity with public opinion, state by state. In fact, Congress has passed only one legislative response to this conflict, and it did so by enacting this kind of provision—albeit using a budget rider that is both temporary and narrow.10 10.Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444–45; United States v. McIntosh, 833 F.3d 1163, 1169 (9th Cir. 2016).Show More

Second, dynamic incorporation can strengthen separation of powers by providing state legislatures with greater opportunities to exercise oversight for enforcement discretion. Few realize that local police heavily influence federal prosecutions and thus can evade state law. Local police often are the information gatekeepers both for local and federal prosecutors. So local police often can avoid more defendant-friendly state sentencing laws, substantive laws, or procedures simply by shifting defendants to federal court. This forum shopping might be beneficial in some contexts. But the problem is that it is exercised with little or no external accountability.

Dynamic incorporation provides new opportunities to reinforce separation of powers by checking that discretion. By creating an interdependence between federal and state legislatures, dynamic incorporation opens the opportunity for fifty more legislatures to oversee how federal law is enforced. Because those legislatures shape federal law, they can narrow the circumstances in which local officials are able to evade the constraints of state law. More generally, the joint partnership between federal prosecutors and local police enhances the power of executive officials compared to legislatures, but dynamic incorporation restores some of that power to legislatures.

This Article proceeds in four parts. Part I explains why dynamic incorporation is one of the most potent tools of modern federalism. This Part describes the concept of dynamic incorporation and classifies those kinds of statutes into four categories. This Part then explains the scholarship on “national federalism,” which studies how the modern Congress entrusts states to implement federal programs, and explains that federalism scholars have not yet appreciated that dynamic incorporation is a potent tool Congress can use to enable state legislatures to help Congress obtain national ends. This Part then explains what the limited scholarship on dynamic incorporation in criminal law misses.

Part II reveals how dynamic incorporation can mitigate the problem of inertia in criminal law. Using the conflicting state and federal laws on marijuana as an illustration, this Part explains how dynamic incorporation can remove the political barriers unique to criminal law that make it harder to reform or update anachronistic criminal statutes. And it explains why dynamic incorporation prevents conflicts like the conflict over marijuana law from occurring in the first place.

Part III then explains that dynamic incorporation reinforces separation of powers by providing greater accountability over enforcement discretion. This Part first exposes the relatively invisible contributor to unchecked enforcement discretion. When Congress greatly expanded the scope of federal criminal law, it did not proportionately increase the federal police force. Local enforcement officials fill that gap, serving as information gatekeepers for federal prosecutors. That new role enhances the power of both local and federal enforcement officials—at the expense of other officials. Dynamic incorporation checks this discretion because it multiplies the number of institutions that can oversee the power of executive officials and rebalances the power to shift some influence away from enforcement officials to legislatures.

Part IV responds to objections. It explains why problems applying the Armed Career Criminal Act do not weigh against dynamic incorp­oration. Although that statute uses dynamic incorporation, the provisions that lead to extensive litigation are precisely those provisions that do not use dynamic incorporation. More dynamic incorporation in fact would resolve the difficulties with that statute. This Part also explains that the relative scarcity of dynamic incorporation in federal criminal law is not due to any determination by Congress that dynamic incorporation would not serve its purposes. Finally, this Part explains that dynamic incorporation does not amount to unlawful delegation, and that possible concerns about decreasing uniformity do not counsel against using dynamic incorporation.

  1. * Yale Law School, J.D. 2016. All views are my own. I am grateful to Professors Heather Gerken, Abbe Gluck, Derek Muller, Michael Dorf, and Wayne Logan, and also to Krista Perry, Madeline Lansky, James Durling, John Ehrett, and Andrew Nussbaum for their insightful comments about this project. ↑
  2. E.g., 42 U.S.C. § 416(b), (f), (h) (2012) (defining “wife,” “husband,” and “married” by referencing state law as construed by state courts). ↑
  3. Akhil Reed Amar, Foreword: Lord Camden Meets Federalism—Using State Constitutions to Counter Federal Abuses, 27 Rutgers L.J. 845, 854–55 (1996) (“Property is often—though admittedly not always—a state law concept, and one that changes over time. Thus, the compensation clause will indeed vary from state to state and year to year as the state-law tinged concept of property itself varies.”); see also Murr v. Wisconsin, 137 S. Ct. 1933, 1944–45 (2017) (narrowly ruling that some undefined limits constrain the ability of states to redefine property). ↑
  4. U.S. Const. art. I, § 8. ↑
  5. Michael C. Dorf, Dynamic Incorporation of Foreign Law, 157 U. Pa. L. Rev. 103, 144 (2008). ↑
  6. Abbe R. Gluck, Our [National] Federalism, 123 Yale L.J. 1996, 2008 & n.45 (2014) [hereinafter Gluck, Our [National] Federalism]. ↑
  7. Wayne A. Logan, Creating a “Hydra in Government”: Federal Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, 74, 84–101 (2006). ↑
  8. Some exceptions exist. Federal law considers state law for sentencing, but interdependence between the state and federal statutes that create substantive criminal liability rarely occurs for the statutes that are enforced. The one notable exception to this rule is the statute that bars people who have committed state felonies from possessing firearms. 18 U.S.C. § 922(g) (2018). But as this Article shows, even that exception employs only a weak, ineffective form of dynamic incorporation. ↑
  9. See notes infra 125­–133 and accompanying text. ↑
  10. See, e.g., Smart Approaches to Marijuana, https://learnaboutsam.org/the-issues/public-health-organizations-positions-on-medical-marijuana/ [https://perma.cc/VD97-3YR2] (com­piling the positions of national medical associations, such as the American Medical Asso­ciation); Alex Smith, As Missouri Voters Weigh Legalizing Medical Marijuana, Doctors Urge a Look at Its Health Risks, Nat’l Pub. Radio (Nov. 1, 2018), http://www.kbia.org/post/miss­ouri-voters-weigh-legalizing-medical-marijuana-doctors-urge-look-its-health-risks [https://­perma.cc/CZ3S-ZE2X] (explaining that many medical associations oppose modern medical marijuana initiatives because of a lack of evidence that marijuana operates in the way activists promise). ↑
  11. Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444–45; United States v. McIntosh, 833 F.3d 1163, 1169 (9th Cir. 2016). ↑

Historical Gloss, Madisonian Liquidation, and the Originalism Debate

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such post-Founding governmental practice in discerning the Constitution’s separation of powers. That approach has been referred to as the “historical gloss” method of constitutional interpretation, based on language that Justice Frankfurter used to describe the concept in his concurrence in the Youngstown steel seizure case. Some originalist commentators, however, have advanced a potentially competing approach to crediting post-Founding practice, which they refer to as “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation.

To date, there has not been any systematic effort to compare gloss and liquidation, even though the differences between them bear on the constitutionality of a range of governmental practices relating to both domestic and foreign affairs in the fields of constitutional law and federal courts. This Article fills that gap in the literature. We first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued interbranch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would focus primarily on early historical practice and disallow “re-liquidation” of constitutional meaning once it had become settled by practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, as recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. We also question whether either account of liquidation is properly attributed to Madison.

Introduction

In discerning the Constitution’s separation of powers, it is common for courts, the political branches, and academic commentators to give weight to post-Founding governmental practice.1 1.See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012).Show More Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation, based on the way that Justice Frankfurter described the concept in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer.2 2.343 U.S. 579 (1952).Show More In that decision, the Supreme Court held that President Truman had exceeded his constitutional authority in attempting to seize the nation’s steel mills during the Korean War to avert a strike.3 3.Id. at 582–84.Show More Frankfurter wrote separately to consider whether and to what extent historical practice might support Truman’s authority to seize the mills.4 4.Id. at 593–628 (Frankfurter, J., concurring).Show More

Frankfurter argued that historic governmental practice was relevant to the question of the President’s seizure authority, asserting that “[i]t is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”5 5.Id. at 610.Show More In his view, although “[d]eeply embedded traditional ways of conducting government” could not “supplant the Constitution or legislation,” they could “give meaning to the words of a text or supply them.”6 6.Id.Show More Frankfurter reviewed the historical practice concerning executive seizure of property, however, and found it insufficient to sustain Truman’s action. Finding only three instances of presidential seizures comparable to the one at issue in the case, all of which occurred in 1941, Frankfurter concluded that “these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution [that we have previously credited],” “[n]or do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.”7 7.Id. at 613.Show More

The Supreme Court’s reliance on historical practice in discerning the separation of powers long predates Frankfurter’s concurrence in Youngstown. For example, in a 1915 case, United States v. Midwest Oil Co., the Court rejected a challenge to President Taft’s decision to temporarily withdraw certain public lands from private development, emphasizing the “long continued practice [of making] orders like the one here involved.”8 8.236 U.S. 459, 469 (1915).Show More Along similar lines, the Court in the 1920s, in concluding that the President’s pardon power extends to a conviction for contempt of court, reasoned that “long practice under the pardoning power and acquiescence in it strongly sustains the construction it is based on.”9 9.Ex parte Grossman, 267 U.S. 87, 118–19 (1925).Show More And, in another decision from that period, the Court emphasized longstanding presidential practice when considering the circumstances under which the President’s “pocket veto”—that is, failure to sign a bill before Congress recesses—should be deemed to operate.10 10.The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”).Show More

A number of the Supreme Court’s modern separation of powers decisions have also relied heavily on historical practice. In 1981, in Dames & Moore v. Regan, the Court upheld executive orders transferring billions of dollars in claims to an international tribunal in The Hague, as part of the resolution of the Iranian hostage crisis, in large part based on the historical practice of presidential settlement of claims.11 11.453 U.S. 654 (1981).Show More In doing so, the Court expressly invoked Justice Frankfurter’s discussion of historical gloss.12 12.See id. at 686.Show More Two more recent decisions have particularly emphasized the importance of historical practice. In 2014, the Court in NLRB v. Noel Canning relied heavily on historical practice in construing the scope of the President’s authority to make recess appointments.13 13.134 S. Ct. 2550 (2014); see also Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1 (analyzing the role of historical practice in Noel Canning).Show More The Court explained that, because “the interpretive questions before us concern the allocation of power between two elected branches of Government,” it was appropriate to “put significant weight upon historical practice.”14 14.Noel Canning, 134 S. Ct. at 2559 (emphasis omitted).Show More The following year, in Zivotofsky v. Kerry, the Court again emphasized historical practice, this time in concluding that the President has an exclusive authority to recognize foreign governments and their territories that cannot be limited by Congress.15 15.135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)).Show More

Reliance on historical practice has also long been a staple of constitutional reasoning within the executive branch. To take one of many examples, executive branch lawyers rely extensively on practice in discerning the scope of the President’s constitutional authority to use military force. In 2018, for instance, the Justice Department’s Office of Legal Counsel (“OLC”) concluded, based largely on historical practice, that President Trump had the power to direct airstrikes against Syria in response to its use of chemical weapons during the civil war there.16 16.April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. __ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/­download [https://perma.­cc/QN7Q-HZKR].Show More Citing to earlier opinions from the Office, including one from 1970, OLC explained: “We have recognized that ‘[s]ince judicial precedents are virtually non-existent’ in defining the scope of the President’s war powers, ‘the question is one which of necessity must be decided by historical practice.’”17 17.Id. at5 (quoting Presidential Authority to Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 317 (1970)).Show More Similarly, in 2011 OLC concluded, based largely on historical practice, that President Obama had the constitutional authority to direct U.S. military forces to take part in bombing operations in Libya without first seeking congressional authorization.18 18.See Authority to Use Military Force in Libya, 35 Op. O.L.C. __ (Apr. 1, 2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf [https://perma.cc/G8RU-VLF7].Show More Quoting from an earlier legal opinion concerning a military intervention in Haiti, OLC asserted that “the pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, evidences the existence of broad constitutional power.”19 19.Id. at 7 (internal quotation marks omitted) (quoting Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 178 (1994)).Show More

Despite the prevalence of that sort of constitutional reasoning in the judiciary and the executive branch, until recently few academic commentators had given significant attention to it, or to its relationship to other approaches to constitutional interpretation. That started to change in 2012, when one of us co-authored an article exploring those questions.20 20.See Bradley & Morrison, supra note 1.Show More The Noel Canning decision two years later further heightened interest in the relevance of historical practice to the separation of powers. Since then, a number of commentators, including the two of us, have continued to try to unpack the concept of historical gloss.21 21.See, e.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017) (examining the concept of historical gloss and its relationship to nonlegal but obligatory “constitutional conventions”); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017) (examining the relationship between how the historical gloss approach is implemented and the reasons for crediting historical practice); Bradley & Siegel, supra note 13 (analyzing the role of historical practice in Noel Canning).Show More

Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation.” Drawing on references to that term by James Madison and certain other members of the Founding generation, those commentators have outlined the conditions under which post-Founding practice can potentially “liquidate” indeterminate constitutional meaning such that it becomes “fixed.”22 22.In referring to “indeterminacy” in this Article, we are using it as a shorthand to encompass a range of circumstances in which the meaning of the constitutional text is under-determinate, including instances of “ambiguity, vagueness, gaps, and contradictions.” SeeLawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469–72 (2013).Show More The Supreme Court, too, has sometimes invoked the idea of “fixing” constitutional meaning when referring to the relevance of historical practice to constitutional interpretation.23 23.See, e.g., Myers v. United States, 272 U.S. 52, 175 (1926) (“[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.”); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting a constitutional challenge to Congress’s requirement that Supreme Court Justices sit on circuit courts, explaining that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction”).Show More The word “liquidation” is used in that context to mean essentially the opposite of the principal modern connotation of the word; instead of signifying dissolution (as in a “liquidation sale”), it is used to signify solidification or determination (as in “liquidated damages”).24 24.An obsolete meaning of “liquidate,” which is derived from the Late Latin “liquidare,” is “to make clear or plain (something obscure or confused); to render unambiguous; to settle (differences, disputes).” Liquidate, The Oxford English Dictionary (2d ed. 1989).Show More

In part because the concepts of gloss and liquidation have only recently begun to receive sustained academic attention, it is not entirely clear whether and to what extent they do or should differ from one another. In Noel Canning, the Court seemed to assume that liquidation and gloss were the same phenomenon. After quoting a reference to liquidation by Madison, the Court wrote that “our cases have continually confirmed Madison’s view.”25 25.134 S. Ct. 2550, 2560 (2014).Show More In its string cite of decisions, however, the Court included a number of decisions claimed by supporters of the gloss approach, including Frankfurter’s concurrence in Youngstown.26 26.See id. (citing Mistretta v. United States, 488 U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Youngstown, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, 279 U.S. 655, 689–90 (1929); Ex parte Grossman, 267 U.S. 87, 118–19 (1925); United States v. Midwest Oil Co., 236 U.S. 459, 472–74 (1915); McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)).Show More Legal scholars also appear to be confused about the distinction, if any, between gloss and liquidation. Writing a year after Noel Canning, Professor Richard Fallon expressed uncertainty, describing gloss as “[c]losely related” to liquidation but “possibly more capacious.”27 27.Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1775 (2015); see also Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 541 & n.424 (2018) (discussing “gloss” and stating that “[i]n a somewhat similar vein, Caleb Nelson and William Baude have suggested that political practice can ‘liquidate’ (that is, settle) the meaning of ‘contestable’ constitutional provisions” (emphasis added)).Show More

Although originalists often focus on history, usually it is history relating to the constitutional Founding and the pre-Founding period.28 28.See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 655–57 (2013) (describing how originalism has traditionally focused on history relating to the adoption of the Constitution and its amendments).Show More Perhaps because of that, for many years the only scholar to have extensively addressed liquidation was Professor Caleb Nelson, who described it in primarily historical terms.29 29.Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–53 (2003) [hereinafter Nelson, Originalism and Interpretive Conventions]; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001) [hereinafter Nelson, Stare Decisis].Show More In a more recent article, however, Professor William Baude has offered a more detailed and contemporary account of the concept.30 30.William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).Show More Meanwhile, the historian Jonathan Gienapp has published an important study of how, over the course of the 1790s, Madison and others in the Founding generation changed their understanding of the nature of the Constitution, including its relationship to historical practice.31 31.Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018).Show More

In this Article, we consider whether and to what extent the concept of liquidation differs from that of gloss. We also consider whether, to the extent that there are differences between liquidation and gloss, those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would look primarily to early historical practice and disallow “re-liquidation” once constitutional meaning had become settled through practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We then argue that Baude’s broader account of liquidation responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either account of liquidation is properly attributed to Madison.

The differences between gloss and liquidation matter. In part because of recent judicial appointments to both the Supreme Court and the lower federal courts, originalism may be experiencing a resurgence.32 32.See, e.g., Lawrence B. Solum, Legal Theory Lexicon 019: Originalism, Legal Theory Blog (last revised Aug. 11, 2019), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/­legal_theory_le_1.html [https://perma.cc/UVY2-E25D] (“The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory—Associate Justices Neil Gorsuch and Clarence Thomas. Three other[] Justices, John Roberts, Samuel Alito, and Brett Kavanaugh[,] may also be receptive to originalist arguments—at least in some cases.”).Show More At the same time, originalist theory has become more receptive to accommodating various non-originalist materials, including historical practice.33 33.See infra notes 45–53 and accompanying text.Show More Unlike the changes in originalist theory over the years—from a focus on the intentions of the Framers, to the understandings of the ratifiers, to the original public meaning of the constitutional text—and unlike the originalist embrace of judicial precedent and the idea of “constitutional construction,”34 34.See id.Show More originalist efforts to claim a greater role for post-Founding historical practice as within the originalist project have not yet received much attention or recognition as such. Like those other “impurifications” of originalism, however, the originalist turn to practice presents originalists with difficult tradeoffs.35 35.For analysis of the phenomenon of theory “working itself impure,” with originalism as one of several case studies, see Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).Show More As we will explain below, those tradeoffs vary depending on whether one opts for gloss or liquidation. More concretely, the constitutionality of many important and longstanding governmental practices in the fields of both constitutional law and federal courts may depend on that choice. Examples include the recess appointments practices accepted in Noel Canning; the extensive modern practice of using congressional-executive agreements in lieu of Senate-approved treaties; presidential authority to order small-scale or short-term uses of military force without congressional authorization; the authority of presidents to withdraw the United States from treaties; the longstanding practice of permitting non-Article III courts to adjudicate federal law cases subject to certain limitations; and the even longer practice of vesting less than the full Article III judicial power in the federal courts notwithstanding the ostensibly mandatory language of Article III.36 36.See infra notes 54–55, 115–124 and accompanying text.Show More

Part I explains why attention to post-Founding historical practice fits more naturally with non-originalist theories of constitutional interpretation than with originalist theories, and it considers why some originalists are nevertheless paying increasing attention to practice. Part II describes the historical gloss approach and explains why, under most accounts, it does not require evidence of an interbranch agreement about the meaning of the Constitution. It also argues that gloss is most defensible in the separation of powers context. Part III assesses the extent to which the liquidation approach is distinct from gloss. It argues that, even under the relatively broad account of the concept recently offered by Baude, there are differences, and that those differences render liquidation normatively less attractive than gloss. Part IV explains why it is doubtful that the liquidation approach as described by scholars such as Nelson and Baude can properly be attributed to Madison. The Article concludes by underscoring the importance of historical practice in light of the age, brevity, and difficulty of amending the Constitution.

  1. * Bradley is the William Van Alstyne Professor, Duke Law School. Siegel is the David W. Ichel Professor, Duke Law School. For helpful comments and suggestions, we thank Matt Adler, Jack Balkin, Will Baude, Joseph Blocher, Jamie Boyle, Kathy Bradley, John De Figueiredo, Richard Fallon, Jonathan Gienapp, Tara Grove, Aziz Huq, Vicki Jackson, Margaret Lemos, Sanford Levinson, Marin Levy, William Marshall, Caleb Nelson, H. Jefferson Powell, David Pozen, Daphna Renan, Lawrence Solum, Mark Tushnet, Ernest Young, participants in a faculty workshop at Duke Law School, and the editors of the Virginia Law Review. ↑

  2. ↑
  3. See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012). ↑
  4. 343 U.S. 579 (1952). ↑
  5. Id. at 582–84. ↑
  6. Id. at 593–628 (Frankfurter, J., concurring). ↑
  7. Id. at 610. ↑
  8. Id. ↑
  9. Id. at 613. ↑
  10. 236 U.S. 459, 469 (1915). ↑
  11. Ex parte Grossman, 267 U.S. 87, 118–19 (1925). ↑
  12. The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”). ↑
  13. 453 U.S. 654 (1981). ↑
  14. See id. at 686. ↑
  15. 134 S. Ct. 2550 (2014); see also Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1 (analyzing the role of historical practice in Noel Canning). ↑
  16. Noel Canning, 134 S. Ct. at 2559 (emphasis omitted). ↑
  17. 135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)). ↑
  18. April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. __ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/­download [https://perma.­cc/QN7Q-HZKR]. ↑
  19. Id. at 5 (quoting Presidential Authority to Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 317 (1970)). ↑
  20. See Authority to Use Military Force in Libya, 35 Op. O.L.C. __ (Apr. 1, 2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf [https://perma.cc/G8RU-VLF7]. ↑
  21. Id. at 7 (internal quotation marks omitted) (quoting Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 178 (1994)). ↑
  22. See Bradley & Morrison, supra note 1. ↑
  23. See, e.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017) (examining the concept of historical gloss and its relationship to nonlegal but obligatory “constitutional conventions”); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017) (examining the relationship between how the historical gloss approach is implemented and the reasons for crediting historical practice); Bradley & Siegel, supra note 13 (analyzing the role of historical practice in Noel Canning). ↑
  24. In referring to “indeterminacy” in this Article, we are using it as a shorthand to encompass a range of circumstances in which the meaning of the constitutional text is under-determinate, including instances of “ambiguity, vagueness, gaps, and contradictions.” See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469–72 (2013). ↑
  25. See, e.g., Myers v. United States, 272 U.S. 52, 175 (1926) (“[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.”); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting a constitutional challenge to Congress’s requirement that Supreme Court Justices sit on circuit courts, explaining that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction”). ↑
  26. An obsolete meaning of “liquidate,” which is derived from the Late Latin “liquidare,” is “to make clear or plain (something obscure or confused); to render unambiguous; to settle (differences, disputes).” Liquidate, The Oxford English Dictionary (2d ed. 1989). ↑
  27. 134 S. Ct. 2550, 2560 (2014). ↑
  28. See id. (citing Mistretta v. United States, 488 U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Youngstown, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, 279 U.S. 655, 689–90 (1929); Ex parte Grossman, 267 U.S. 87, 118–19 (1925); United States v. Midwest Oil Co., 236 U.S. 459, 472–74 (1915); McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)). ↑
  29. Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1775 (2015); see also Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 541 & n.424 (2018) (discussing “gloss” and stating that “[i]n a somewhat similar vein, Caleb Nelson and William Baude have suggested that political practice can ‘liquidate’ (that is, settle) the meaning of ‘contestable’ constitutional provisions” (emphasis added)). ↑
  30. See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 655–57 (2013) (describing how originalism has traditionally focused on history relating to the adoption of the Constitution and its amendments). ↑
  31. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–53 (2003) [hereinafter Nelson, Originalism and Interpretive Conventions]; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001) [hereinafter Nelson, Stare Decisis]. ↑
  32. William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). ↑
  33. Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018). ↑
  34. See, e.g., Lawrence B. Solum, Legal Theory Lexicon 019: Originalism, Legal Theory Blog (last revised Aug. 11, 2019), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/­legal_theory_le_1.html [https://perma.cc/UVY2-E25D] (“The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory—Associate Justices Neil Gorsuch and Clarence Thomas. Three other[] Justices, John Roberts, Samuel Alito, and Brett Kavanaugh[,] may also be receptive to originalist arguments—at least in some cases.”). ↑
  35. See infra notes 45–53 and accompanying text. ↑
  36. See id. ↑
  37. For analysis of the phenomenon of theory “working itself impure,” with originalism as one of several case studies, see Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016). ↑
  38. See infra notes 54–55, 115–124 and accompanying text. ↑
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