Issue 6

Indiscriminate Data Surveillance

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Working hand-in-hand with the private sector, largely in a regulatory vacuum, policing agencies at the federal, state, and local levels are acquiring and using vast reservoirs of personal data. They are doing so indiscriminately, which is to say without any reason to suspect the individuals whose data they are collecting are acting unlawfully. And they are doing it in bulk. People are unlikely to want this personal information shared with anyone, let alone law enforcement. And yet today, private companies are helping law enforcement gather it by the terabyte. On all of us.

Our thesis is straightforward: the unregulated collection of this data must cease, at least until basic rule-of-law requisites are met. Any collection must be authorized by democratically accountable bodies. It must be transparent. It must be based on clear proof of efficacy (that a legitimate purpose actually is being served). There must be protections that minimize or avoid harms to individuals and society. And, of course, there must be judicial review of whether indiscriminate bulk data collection is constitutional, either at all or with regard to specific programs.

The basis for this thesis is a first-of-its-kind review of instances, from the dawn of the Information Age, in which Congress acted on these very issues. Much of that history involves indiscriminate collection of data on Americans for reasons of national and domestic security, because national security represents the outer bounds of what law enforcement and intelligence agencies are permitted to do, and much of what is done in the name of national security is inappropriate for domestic policing. Yet, in incident after incident, Congress made clear that indiscriminate bulk collection of Americans’ data is unacceptable, unlawful, and of dubious constitutionality. To the extent that such collection was permitted at all, Congress demanded the very requisites specified above. Today’s indiscriminate bulk surveillance by federal, state, and local policing agencies violates virtually all of these congressionally established norms. It should cease, at least until the rule-of-law requisites are met.

Introduction

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to criminalize abortion and which generated huge controversy that ripples today, also directed attention to a seemingly incongruous matter: personal data.1 1.142 S. Ct. 2228, 2242–43 (2022); Philip Bump, The Patterns of Out-of-State Abortions, Wash. Post (Sept. 1, 2023, 4:48 PM), https://www.washingtonpost.com/politics/2023/09/01/‌patterns-out-of-state-abortions/ [https://perma.cc/F8ZP-36H2].Show More To be specific, apps used to track menstrual cycles and other details of individuals’ intimate lives.2 2.Rina Torchinsky, How Period Tracking Apps and Data Privacy Fit into a Post-Roe v. Wade Climate, NPR (June 24, 2022, 3:06 PM), https://www.npr.org/2022/05/10/1097482967/‌roe-v-wade-supreme-court-abortion-period-apps [https://perma.cc/4XCD-WTWQ]; Sara Morrison, Should I Delete My Period App? And Other Post-Roe Privacy Questions, Vox (July 6, 2022, 12:50 PM), https://www.vox.com/recode/2022/7/6/23196809/period-apps-roe-dobbs‌-data-privacy-abortion [https://perma.cc/3UCU-L2M8].Show More The fear motivating the attention was that prosecutors would obtain the data in an attempt to prove that women had indeed aborted a fetus.3 3.Jay Edelson, Post-Dobbs, Your Private Data Will Be Used Against You, Bloomberg News (Sept. 22, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/post-dobbs-your-pr‌ivate-data-will-be-used-against-you [https://perma.cc/E23W-DNMK]; see also Leah R. Fowler & Michael R. Ulrich, Femtechnodystopia, 75 Stan. L. Rev. 1233, 1237–38 (2023) (discussing how prosecutors and government officials could leverage consumer data to enforce abortion prohibitions or criminally prosecute users).Show More

This alarm was entirely justifiable—prosecutors already have sought private data for abortion prosecutions.4 4.Cat Zakrzewski, Pranshu Verma & Claire Parker, Texts, Web Searches About Abortion Have Been Used to Prosecute Women, Wash. Post (July 3, 2022, 9:20 AM), https://www.wash‌ingtonpost.com/technology/2022/07/03/abortion-data-privacy-prosecution/ [https://perma.cc/‌UUB7-H9NS].Show More Still, there was something deeply naive about the sudden attention to law enforcement’s collection of personal digital data.5 5.Ryan Phillips, Infant Death Case Heading Back to Grand Jury, Starkville Daily News (May 9, 2019), https://www.starkvilledailynews.com/infant-death-case-heading-back-to-gran‌d-jury/article_cf99bcb0-71cc-11e9-963a-eb5dc5052c92.html [https://perma.cc/D3Z9-39‌NR]; Grace Oldham & Dhruv Mehrotra, Facebook and Anti-Abortion Clinics Are Collecting Highly Sensitive Info on Would-Be Patients, The Markup (June 15, 2022, 6:00 AM), https://th‌emarkup.org/pixel-hunt/2022/06/15/facebook-and-anti-abortion-clinics-are-collecting-highly‌-sensitive-info-on-would-be-patients [https://perma.cc/379S-92YA]. For Supreme Court cases expressing protection for intimate privacy, see Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (identifying a right to privacy for couples seeking to procure contraception); Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the First and Fourth Amendments protect the possession of “obscene material”).Show More For some time now, law enforcement has been gaining access to the most minute details of our personal lives: where we go and stay; with whom we text and chat; what we read and search; what we say to digital assistants; what medical advice we seek; and which health providers we see.6 6.Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age 58–63 (2022); see infra Part I.Show More At volume, all data becomes intimate data, and today, law enforcement is gathering it up by the terabyte.7 7.Gabby Miller, Transcript: Senate Hearing on Protecting Americans’ Privacy and the AI Accelerant, Tech Pol’y Press (July 12, 2024) (statement of Ryan Calo), https://www.techpol‌icy.press/transcript-senate-hearing-on-protecting-americans-privacy-and-the-ai-accelerant/ [https://perma.cc/Z87R-JXR5] (“AI is increasingly able to derive the intimate from the available.”); Alicia Solow-Niederman, Information Privacy and the Inference Economy, 117 Nw. U. L. Rev. 357, 361 (2022) (exploring the implications of machine learning tools’ ability to derive personal data from “aggregations of seemingly innocuous data”); see infra Part I.Show More On each and every one of us.

What the abortion decision did was bring the spotlight of public attention to what already is an extensive and deepening relationship between law enforcement and private actors, which has enabled indiscriminate data surveillance, in bulk. It’s no secret that private actors collect vast amounts of data on each of us.8 8.See, e.g., Carly Page, Hotel Giant Marriott Confirms Yet Another Data Breach, TechCrunch (July 6, 2022, 7:21 AM), https://techcrunch.com/2022/07/06/marriott-breach-ag‌ain/ [https://perma.cc/Q2HF-8P5S]; Andrew Leahey, Equifax, Experian Must Pay More Than Pennies for Data Breaches, Bloomberg Tax (Feb. 21, 2023, 4:45 AM), https://news.bloomber‌gtax.com/tax-insights-and-commentary/equifax-experian-must-pay-more-than-pennies-for-data-breaches [https://perma.cc/Q2HZ-HG5B].Show More What is less widely known, but essential to understand, is the full extent to which that data can be, is, and will be shared with agents of the state. Some twenty years ago, Michael D. Birnhack and Niva Elkin-Koren called this “The Invisible Handshake.”9 9.Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, Va. J.L. & Tech., Summer 2003, at 1.Show More Today, it is a full embrace.

This Article is about the acquisition by law enforcement of personal data indiscriminately and in bulk. “Indiscriminately” means it is acquired without the sort of lawful predicate—such as probable cause or reasonable suspicion—that typically limits when law enforcement may target individuals. “In bulk” captures how the technology and economics of the digital age enable policing agencies to gather this data on all of us, or any subset it chooses.10 10.On the ability to collect data in bulk and the economics of storing it, see Viktor Mayer-Schönberger & Kenneth Cukier, Big Data: A Revolution That Will Transform How We Live, Work, and Think 6–12 (2013).Show More Today, policing agencies are acquiring access to the personal data of vast swaths of society, without regard to whether the targets of data acquisition are suspected of any unlawful conduct whatsoever. And they are using artificial-intelligence-driven tools to develop vivid pictures of who we are, what we do, where we go, what we spend, with whom we communicate, and much, much more.11 11.See infra Part I.Show More Make no mistake, the state has each of us under surveillance, and the extent and cohesiveness of that surveillance are growing by the day.

Although we know for certain this access to vast amounts of personal data is happening, far too few of the details are public because law enforcement and private parties are engaged in deliberate evasion to prevent our knowing. Through misleading procurement practices, memoranda of understanding (“MOU”) mutually pledging nondisclosure, parallel construction (the act of hiding from courts how law enforcement gets its leads), and more, public-private partners effectively manage to assemble vast pools of data outside the public eye, thereby avoiding any oversight.12 12.Id.Show More

What this Article demonstrates is that this sort of gathering of massive reservoirs of personal data about innocent people (to use a shorthand for those for whom there is no suspicion of wrongdoing) has been condemned by Congress and the broader society it represents time and again, and justifiably so. From the birth of the age of computerization, to the deeply problematic and nefarious conduct of government agents during COINTELPRO, to the secret collections of data by the National Security Agency as revealed by Edward Snowden, when Congress has been forced to act on this sort of indiscriminate data collection, it has ordered this practice to cease.13 13.See infra Part II.Show More It is true, as we explain in Part III, that members of Congress, as well as state and local legislators, prefer to duck confrontations with law enforcement whenever they can—and they certainly do. But when compelled to act, Congress has made clear that the unregulated gathering of computerized dossiers endangers personal privacy and security, and risks unchecked government power. Such surveillance has chilled and destroyed constitutional rights exercised in the service of social change, has fallen particularly heavily on vulnerable and marginalized minorities, and has put way too much power in the hands of executive branch actors.14 14.Citron, supra note 6, at xvi.Show More

Still, to be clear—and this is what makes the issue a difficult one—law enforcement access to digital reservoirs may serve important purposes. Ever since the advent of the internet, crime has moved online. From those who steal our identities and empty our bank accounts, to those who threaten and stalk us, to those who would terrorize us or foment insurrection, crime is online and is itself driven by access to personal data.15 15.See, e.g., Luke Barr, Americans Lost $10.3 Billion to Internet Scams in 2022, FBI Says, ABC News (Mar. 13, 2023, 4:27 PM), https://abcnews.go.com/Business/americans-lost-103-billion-internet-scams-2022-fbi/story?id=97832789 [https://perma.cc/7DQP-U9ZP]; Joshua Barlow, Naval Officer Charged with Harassment, Cyberstalking, Identity Theft Against Ex-Wife, WTOP News (Oct. 24, 2022, 4:59 AM), https://wtop.com/montgomery-county/2022/10‌/naval-officer-charged-with-harassment-cyberstalking-identity-theft-against-ex-wife/ [https://perma.cc/6SP2-MBGR]; Farah Pandith & Jacob Ware, Teen Terrorism Inspired by Social Media Is on the Rise. Here’s What We Need to Do., NBC News (Mar. 22, 2021, 4:30 AM), https://www.nbcnews.com/think/opinion/teen-terrorism-inspired-social-media-ris‌e-here-s-what-we-ncna1261307 [https://perma.cc/V62E-GVYS]; Rebecca Heilweil & Shirin Ghaffary, How Trump’s Internet Built and Broadcast the Capitol Insurrection, Vox (Jan. 8, 2021, 5:00 PM), https://www.vox.com/recode/22221285/trump-online-capitol-riot-far-right-parler-twitter-facebook [https://perma.cc/52NQ-5YZX].Show More Law enforcement needs to use digital tools of some sort to keep us safe from wrongdoing, and those may well require access to personal data—though even yet it remains open to question whether that should include the data of individuals suspected of nothing.

Society’s goal should be a reasoned balance, but things now are seriously out of kilter. Working hand-in-hand with the private sector, policing agencies at the federal, state, and local levels are indiscriminately accessing vast reservoirs of personal data.16 16.See infra Part I.Show More In the absence of regulation, this has made suspects of us all, and invited harms of the most grievous sort.17 17.Id.Show More

Our thesis is straightforward: the current state of affairs must end. This is not necessarily to call for a ban on all indiscriminate bulk data-collection partnerships. As we’ve indicated, there are reasons some degree of collection might be advisable for safety’s sake. Rather, what we do here is derive from congressional debates and critical legislative actions taken since the dawn of the Information Age a set of very basic rule-of-law requisites that must be met before indiscriminate data surveillance can continue. Collection must be democratically authorized, not left to policing agencies alone to decide. The fact of collection must be transparent, even if some particulars are not, for security reasons. There must be a clear showing that collection protects public safety. And there must be safeguards in place—among them antidiscrimination, minimization, and retention limits—to mitigate or eliminate a number of obvious harms to privacy, personal security, equality, and overweening state power. And all of this must be open to constitutional scrutiny.18 18.The recent guidance to federal agencies by the Office of Management and Budget (“OMB”) regarding the use of artificial intelligence is greatly consistent with much of what we argue for here. See Proposed Memorandum from Shalanda D. Young, Dir., Off. of Mgmt. & Budget, to the Heads of Exec. Dep’ts & Agencies, Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence 10, 16, 18, 22 (2023) (requiring public input, transparency, a showing of efficacy, and detailed safeguards, with hopefully narrow exceptions for some law enforcement and national security activity); accord Joy Buolamwini & Barry Friedman, How the Federal Government Can Rein in A.I. in Law Enforcement, N.Y. Times (Jan. 2, 2024), https://www.nytimes.com/2024/01/02/opinion/‌ai-police-regulation.html [https://perma.cc/4U5V-UVSJ] (acknowledging OMB’s requirements and urging closing of loopholes).Show More We are skeptical that much of today’s indiscriminate bulk public-private surveillance will satisfy these tests. But our overarching point is that indiscriminate bulk collection of our data behind our backs must come to a halt, and if it occurs at all, it must proceed only by the terms set after open and transparent democratic debate. This is what congressional action, when it has occurred, teaches us.

As we write, it is an understatement to say these issues are at the forefront of national politics.19 19.Thanks to Noah Chauvin for enhancing our list of examples.Show More Congress is embroiled in debates over the limits on policing agencies purchasing personal data from data brokers.20 20.In April of 2024, the House of Representatives passed the Fourth Amendment Is Not For Sale Act (“FAINFSA”) by a vote of 219-199. See H.R. 4639—Fourth Amendment Is Not For Sale Act, Congress.gov, https://www.congress.gov/bill/118th-congress/house-bill/4639/all-ac‌tions [https://perma.cc/Z8XL-6JC7] (last visited Sept. 7, 2024). This bill would flatly prohibit some of the practices we describe. Joseph Cox, Bill That Would Stop the Government Buying Data Without a Warrant Passes Key Hurdle, Vice (July 19, 2023, 11:19 AM), https://www.vic‌e.com/en/article/wxjgd4/fourth-amendment-is-not-for-sale-act-passes-committee [https://per‌ma.cc/GVB6-6KK7]. The Protect Liberty and End Warrantless Surveillance Act, which incorporates FAINSFA in full, passed through the House Judiciary Committee by a vote of 35-2. H.R. 6570, 118th Cong. (2023); see also H.R. 6570—Protect Liberty and End Warrantless Surveillance Act of 2023, Congress.gov, https://www.congress.gov/bill/118th-co‌ngress/house-bill/6570/all-actions-without-amendments [https://perma.cc/3XJS-Y9XC] (last visited May 15, 2024). The bipartisan, bicameral Government Surveillance Reform Act exceeds even FAINFSA in the information it would protect. H.R. 6262, 118th Cong. (2023); S. 3234, 118th Cong. (2023). The House of Representatives, by voice vote, adopted the Davidson-Jacobs Amendment to the National Defense Authorization Act, which would have prohibited the Department of Defense from purchasing U.S. persons’ protected information without a warrant. H.Amdt.256 to H.R. 2670, Congress.gov (July 14, 2023), https://www.cong‌ress.gov/amendment/118th-congress/house-amendment/256/text?s=3&r=5 [https://perma.cc/‌U8KM-X75W]. For an overview of the threat to privacy that data brokers present and an evaluation of certain legislative proposals, see Emile Ayoub & Elizabeth Goitein, Closing the Data Broker Loophole, Brennan Ctr. for Just. (Feb. 13, 2024), https://www.brennancenter.org/‌our-work/research-reports/closing-data-broker-loophole [https://perma.cc/S3H5-5T7U].Show More Section 702 of the Foreign Intelligence Surveillance Act recently was reauthorized, but only for two years rather than the typical five, and it encountered an especially rocky road in light of recent revelations of FBI overreach.21 21.See Biden Signs Reauthorization of Surveillance Program into Law Despite Privacy Concerns, NPR (Apr. 20, 2024, 9:54 PM), https://www.npr.org/2024/‌04/20/1246‌076114/sen‌ate-passes-reauthorization-surveillance-program-fisa [https://perma.cc/M5XF-LV5R] (“The reauthorization faced a long and bumpy road to final passage Friday after months of clashes between privacy advocates and national security hawks pushed consideration of the legislation to the brink of expiration.”); see also Preston Marquis & Molly E. Reynolds, House Passes Section 702 Reauthorization, Lawfare (Apr. 16, 2024, 12:59 PM), https://www.lawfaremedia‌.org/article/house-passes-section-702-reauthorization [https://perma.cc/78RP-RGB8] (describing the two-year reauthorization as a “key concession” to ensure the bill’s passage).Show More In the course of reauthorization, Section 702 proponents adopted some reforms and promised to systematically consider more.22 22.On the nature of the reforms, see infra notes 252–56. A commission was established to “consider ongoing reforms.” Reforming Intelligence and Securing America Act, Pub. L. No. 118-49, § 18(c), 138 Stat. 885 (2024) (codified as amended at 50 U.S.C. § 1881a); see also David Aaron, Unpacking the FISA Section 702 Reauthorization Bill, Just Sec. (Apr. 18, 2024), https://www.justsecurity.org/94771/unpacking-the-fisa-section-702-reauthorization-bill/ [https://perma.cc/XE4T-MVM3]. The Chair of the Senate Intelligence Committee, Senator Mark Warner, acknowledged drafting problems with the reauthorization bill and promised to work towards improvements this summer. Noah Chauvin, Too Much Power for Spy Agencies, Brennan Ctr. for Just. (Apr. 23, 2024), https://www.brennancenter.org/our-work/analysis-opi‌nion/too-much-power-spy-agencies [https://perma.cc/J438-M9P9]. One upshot of the fight was that the FISA reform bill will come to the House floor for passage by simple majority, rather than requiring a two-thirds vote as leadership originally had planned. See Marquis & Reynolds, supra note 21.Show More The Office of the Director of National Intelligence (“ODNI”) recently declassified a report on the Intelligence Community’s use of commercially available information, the most salient part of which is a recognition that indiscriminate bulk collection of information involves highly personal information and that claiming its collection avoids constitutional or other concerns simply because it is “publicly” or “commercially” available is unpersuasive. ODNI called for top-to-bottom reconsideration of the issue.23 23.Off. of the Dir. of Nat’l Intel., Senior Advisory Grp., Panel on Commercially Available Info., Report to the Director of National Intelligence 2 (Jan. 27, 2022) [hereinafter ODNI Report], https://www.dni.gov/files/ODNI/documents/assessments/ODNI-Declassified-Repor‌t-on-CAI-January2022.pdf [https://perma.cc/69EZ-2NK2].Show More The Federal Trade Commission brought an action in January of 2024 against data broker X-Mode Social for selling sensitive data obtained from phones without customer consent.24 24.Press Release, Fed. Trade Comm’n, FTC Order Prohibits Data Broker X-Mode Social and Outlogic from Selling Sensitive Location Data (Jan. 9, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/01/ftc-order-prohibits-data-broker-x-mode-social-outlogic-selling-sensitive-location-data [https://perma.cc/2RNF-JBTP]. On May 1, 2024, the FTC released its final order against InMarket in which it prohibited the data aggregator from sharing or selling sensitive location data for advertising and marketing purposes. Press Release, Fed. Trade Comm’n, FTC Finalizes Order with InMarket Prohibiting It from Selling or Sharing Precise Location Data (May 1, 2024), https://www.ftc.gov/news-events/news/pre‌ss-releases/2024/05/ftc-finalizes-order-inmarket-prohibiting-it-selling-or-sharing-precise-loc‌ation-data [https://perma.cc/B6XR-578H].Show More That same month, Senator Ron Wyden forced the Intelligence Community to reveal it was buying Americans’ location data by putting a hold on the nominee for Director of the National Security Agency until this information became public.25 25.See Letter from Ron Wyden, U.S. Sen., to Avril Haines, Dir. of Nat’l Intel. (Jan. 25, 2024), https://www.wyden.senate.gov/imo/media/doc/signed_wyden_letter_to_dni_re_nsa_p‌urchase_of_domestic_metadata_and_ftc_order_on_data_brokers_with_attachments.pdf [https://perma.cc/EHJ8-69ZH]; Charlie Savage, N.S.A. Buys Americans’ Internet Data Without Warrants, Letter Says, N.Y. Times (Jan. 25, 2024), https://www.nytimes.com/2024/‌01/25/us/politics/nsa-internet-privacy-warrant.html [https://perma.cc/5GVM-RXXR].Show More

Despite the apparent urgency of these issues, little (if any) progress is being made, in large part—we believe—because legislators are simply uncertain how to proceed. That is where we seek to intervene. Relying on past congressional actions, we provide a roadmap for Congress, as well as state and local legislative bodies, as to the minimum requirements that must be in place before indiscriminate bulk data collection can continue. (And even then, as we say, there must be judicial review.)

Although our aspiration here is to suggest a path toward sound regulation, we are quite certain that absent the very basic rule-of-law requisites identified repeatedly by Congress, courts should invalidate all such indiscriminate collection as unconstitutional. It is difficult to understand how a court could uphold such activity given that, for the most part, we don’t even know what actually is happening. That is no doubt why courts, confronted with these issues, have tended to dispose of them on justiciability or other grounds rather than reaching the merits.26 26.See, e.g., ACLU v. Clapper, 785 F.3d 787, 823–24 (2d Cir. 2015) (declining to address whether the NSA’s bulk data collection pursuant to Section 215 violated the Fourth Amendment); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402, 414, 418 (2013) (dismissing for want of Article III standing the claim that § 1881a of the Foreign Intelligence Surveillance Act of 1978 is unconstitutional); Schuchardt v. President of the United States, 802 F. App’x 69, 76–77 (3d Cir. 2020); Obama v. Klayman, 800 F.3d 559, 562 (D.C. Cir. 2015).Show More Still, it is unacceptable for courts simply to turn a blind eye to the degree of surveillance that is occurring. Our review of congressional debates, coupled with a constitutional argument one of us has advanced elsewhere, provides ample basis for striking down indiscriminate bulk data surveillance that is occurring in the absence of any regulation and without anything in the way of serious guardrails.27 27.See Barry Friedman, Lawless Surveillance, 97 N.Y.U. L. Rev. 1143, 1204–14 (2022) (providing a constitutional argument of precisely this nature).Show More

On the other hand, the appropriate time to address the constitutionality of indiscriminate bulk data collection in the context of a specific legislative program is when the contours of that legislative program are known, including factors such as any evidence of the utility of the data collected, and the safeguards in place to protect individual interests.28 28.In Carpenter v. United States, the Supreme Court barred warrantless collection of over six days of cell site location information, despite such collection ostensibly being permitted by the Stored Communications Act. 138 S. Ct. 2206, 2216–19 (2018). But the Court went no further. In that decision, the Chief Justice expressed the need to move cautiously, lest the Court “embarrass the future.” Id. at 2220 (quoting Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944)). Actual legislation will provide the Court with an opportunity to evaluate the specific protections it embodies, as well as government arguments about the utility of the data collected. See, e.g., Berger v. New York, 388 U.S. 41, 44 (1967) (evaluating constitutionality of wiretapping in context of New York’s law); see infra notes 332–40 and accompanying text (discussing how decisions like Berger have led to further legislation).Show More

Part I of this Article sets the stage by explaining that indiscriminate bulk data collection by domestic policing agencies is rampant and expanding at warp speed due to deepening public-private data partnerships. Section II.A details the profound data grab that is occurring and explains how, with the assistance of private helpers, law enforcement is accomplishing what it likely could not on its own. Section II.B makes the case that what is occurring may be but the tip of the iceberg. Law enforcement and their private partners are engaging in evasive (and dubiously constitutional) tactics to keep secret the fact that any of this is happening, making it impossible to know the true extent of the indiscriminate data surveillance.

Part II is the heart of our argument. It documents that when Congress has been forced to confront indiscriminate bulk data collection about innocent individuals by intelligence and policing agencies, it has registered sharp disapproval; Congress typically has shut down the collection. To the extent that the legislature allowed any mass access to data, the data was safeguarded with protections that often were understood to be foundational and perhaps required by the Constitution. To be clear, Congress has not always acted in the face of complaints about mass collection of private data. Public choice theory confirms what our own eyes see—caught between claims of national security and law enforcement imperatives (on the one hand), and popular unhappiness about private data collection (on the other), as well as its own keen awareness of the dangers, Congress often bends to pressure. But when Congress has been forced to act, indiscriminate bulk data collection about Americans suspected of nothing consistently has been deemed unlawful, of dubious constitutionality, and has been rejected. Congress has insisted instead on a set of quite obvious basic prerequisites, grounded in the rule of law. Part II traces this history up to the present day. Much of what we discuss in Part II concerns national security, which serves as a notable benchmark, because all concerned agreed that while certain surveillance activities may be permissible to protect national security, they are simply impermissible for domestic purposes.

Part III, relying on congressional insights of the past, turns to prescription for the present. Section III.A summarizes the rule-of-law requisites that surfaced repeatedly in congressional debates and actions, making abundantly clear that the ongoing domestic law enforcement data grab detailed in Part I violates these requisites. Indiscriminate data collection should not occur at all unless it is democratically authorized, transparent, based upon demonstrated efficacy, and bounded by essential safeguards to prevent things like discrimination, risks to personal security, and the accumulation of overweening governmental power. This goes for data collection conducted for the use of policing agencies at every level of government, federal, state, tribal, and local. Section III.B then tackles the hard question—which is how to make this happen in light of the game of hot potato that keeps both the judiciary and legislative bodies from doing their regulatory and adjudicative jobs. That Section identifies a set of mechanisms to address the problem. One is what historically has been a game of judicial / legislative give-and-take that allows each branch to push the other toward sensible resolutions. Another is a set of sunsets—coupled with disclosure requirements—to ensure periodic democratic review and reevaluation of data collection efforts to, among other things, weigh the efficacy and value of such collections against the intrusions they involve. The third is an intriguing, ongoing intercontinental game of chicken between the European Union and the United States that might accomplish the same, at least at the federal level.

Data, in our world, is a benefit and a curse. If we are not careful, the curse will trump the benefits in too many of our lives. Even if the threat is not immediately obvious, allowing government access to this much information about all of us is a prescription for tyranny. Eyes were opened by the idea that government could not only criminalize our reproductive lives but pry into our virtual and physical bedrooms and bathrooms to discover any criminality. That particular fear is justified, but the threats extend far beyond it. It is essential that we do something, now, about policing and intelligence agency’s massive indiscriminate collection of our personal data.

  1.  142 S. Ct. 2228, 2242–43 (2022); Philip Bump, The Patterns of Out-of-State Abortions, Wash. Post (Sept. 1, 2023, 4:48 PM), https://www.washingtonpost.com/politics/2023/09/01/‌patterns-out-of-state-abortions/ [https://perma.cc/F8ZP-36H2]. ↑
  2.  Rina Torchinsky, How Period Tracking Apps and Data Privacy Fit into a Post-Roe v. Wade Climate, NPR (June 24, 2022, 3:06 PM), https://www.npr.org/2022/05/10/1097482967/‌roe-v-wade-supreme-court-abortion-period-apps [https://perma.cc/4XCD-WTWQ]; Sara Morrison, Should I Delete My Period App? And Other Post-Roe Privacy Questions, Vox (July 6, 2022, 12:50 PM), https://www.vox.com/recode/2022/7/6/23196809/period-apps-roe-dobbs‌-data-privacy-abortion [https://perma.cc/3UCU-L2M8]. ↑
  3.  Jay Edelson, Post-Dobbs, Your Private Data Will Be Used Against You, Bloomberg News (Sept. 22, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/post-dobbs-your-pr‌ivate-data-will-be-used-against-you [https://perma.cc/E23W-DNMK]; see also Leah R. Fowler & Michael R. Ulrich, Femtechnodystopia, 75 Stan. L. Rev. 1233, 1237–38 (2023) (discussing how prosecutors and government officials could leverage consumer data to enforce abortion prohibitions or criminally prosecute users). ↑
  4.  Cat Zakrzewski, Pranshu Verma & Claire Parker, Texts, Web Searches About Abortion Have Been Used to Prosecute Women, Wash. Post (July 3, 2022, 9:20 AM), https://www.wash‌ingtonpost.com/technology/2022/07/03/abortion-data-privacy-prosecution/ [https://perma.cc/‌UUB7-H9NS]. ↑
  5.  Ryan Phillips, Infant Death Case Heading Back to Grand Jury, Starkville Daily News (May 9, 2019), https://www.starkvilledailynews.com/infant-death-case-heading-back-to-gran‌d-jury/article_cf99bcb0-71cc-11e9-963a-eb5dc5052c92.html [https://perma.cc/D3Z9-39‌NR]; Grace Oldham & Dhruv Mehrotra, Facebook and Anti-Abortion Clinics Are Collecting Highly Sensitive Info on Would-Be Patients, The Markup (June 15, 2022, 6:00 AM), https://th‌emarkup.org/pixel-hunt/2022/06/15/facebook-and-anti-abortion-clinics-are-collecting-highly‌-sensitive-info-on-would-be-patients [https://perma.cc/379S-92YA]. For Supreme Court cases expressing protection for intimate privacy, see Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (identifying a right to privacy for couples seeking to procure contraception); Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the First and Fourth Amendments protect the possession of “obscene material”). ↑
  6.  Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age 58–63 (2022); see infra Part I. ↑
  7.  Gabby Miller, Transcript: Senate Hearing on Protecting Americans’ Privacy and the AI Accelerant, Tech Pol’y Press (July 12, 2024) (statement of Ryan Calo), https://www.techpol‌icy.press/transcript-senate-hearing-on-protecting-americans-privacy-and-the-ai-accelerant/ [https://perma.cc/Z87R-JXR5] (“AI is increasingly able to derive the intimate from the available.”); Alicia Solow-Niederman, Information Privacy and the Inference Economy, 117 Nw. U. L. Rev. 357, 361 (2022) (exploring the implications of machine learning tools’ ability to derive personal data from “aggregations of seemingly innocuous data”); see infra Part I. ↑
  8.  See, e.g., Carly Page, Hotel Giant Marriott Confirms Yet Another Data Breach, TechCrunch (July 6, 2022, 7:21 AM), https://techcrunch.com/2022/07/06/marriott-breach-ag‌ain/ [https://perma.cc/Q2HF-8P5S]; Andrew Leahey, Equifax, Experian Must Pay More Than Pennies for Data Breaches, Bloomberg Tax (Feb. 21, 2023, 4:45 AM), https://news.bloomber‌gtax.com/tax-insights-and-commentary/equifax-experian-must-pay-more-than-pennies-for-data-breaches [https://perma.cc/Q2HZ-HG5B]. ↑
  9.  Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, Va. J.L. & Tech., Summer 2003, at 1. ↑
  10.  On the ability to collect data in bulk and the economics of storing it, see Viktor Mayer-Schönberger & Kenneth Cukier, Big Data: A Revolution That Will Transform How We Live, Work, and Think 6–12 (2013). ↑
  11.  See infra Part I. ↑
  12.  Id. ↑
  13.  See infra Part II. ↑
  14.  Citron, supra note 6, at xvi. ↑
  15.  See, e.g., Luke Barr, Americans Lost $10.3 Billion to Internet Scams in 2022, FBI Says, ABC News (Mar. 13, 2023, 4:27 PM), https://abcnews.go.com/Business/americans-lost-103-billion-internet-scams-2022-fbi/story?id=97832789 [https://perma.cc/7DQP-U9ZP]; Joshua Barlow, Naval Officer Charged with Harassment, Cyberstalking, Identity Theft Against Ex-Wife, WTOP News (Oct. 24, 2022, 4:59 AM), https://wtop.com/montgomery-county/2022/10‌/naval-officer-charged-with-harassment-cyberstalking-identity-theft-against-ex-wife/ [https://perma.cc/6SP2-MBGR]; Farah Pandith & Jacob Ware, Teen Terrorism Inspired by Social Media Is on the Rise. Here’s What We Need to Do., NBC News (Mar. 22, 2021, 4:30 AM), https://www.nbcnews.com/think/opinion/teen-terrorism-inspired-social-media-ris‌e-here-s-what-we-ncna1261307 [https://perma.cc/V62E-GVYS]; Rebecca Heilweil & Shirin Ghaffary, How Trump’s Internet Built and Broadcast the Capitol Insurrection, Vox (Jan. 8, 2021, 5:00 PM), https://www.vox.com/recode/22221285/trump-online-capitol-riot-far-right-parler-twitter-facebook [https://perma.cc/52NQ-5YZX]. ↑
  16.  See infra Part I. ↑
  17.  Id. ↑
  18.  The recent guidance to federal agencies by the Office of Management and Budget (“OMB”) regarding the use of artificial intelligence is greatly consistent with much of what we argue for here. See Proposed Memorandum from Shalanda D. Young, Dir., Off. of Mgmt. & Budget, to the Heads of Exec. Dep’ts & Agencies, Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence 10, 16, 18, 22 (2023) (requiring public input, transparency, a showing of efficacy, and detailed safeguards, with hopefully narrow exceptions for some law enforcement and national security activity); accord Joy Buolamwini & Barry Friedman, How the Federal Government Can Rein in A.I. in Law Enforcement, N.Y. Times (Jan. 2, 2024), https://www.nytimes.com/2024/01/02/opinion/‌ai-police-regulation.html [https://perma.cc/4U5V-UVSJ] (acknowledging OMB’s requirements and urging closing of loopholes). ↑
  19.  Thanks to Noah Chauvin for enhancing our list of examples. ↑
  20.  In April of 2024, the House of Representatives passed the Fourth Amendment Is Not For Sale Act (“FAINFSA”) by a vote of 219-199. See H.R. 4639—Fourth Amendment Is Not For Sale Act, Congress.gov, https://www.congress.gov/bill/118th-congress/house-bill/4639/all-ac‌tions [https://perma.cc/Z8XL-6JC7] (last visited Sept. 7, 2024). This bill would flatly prohibit some of the practices we describe. Joseph Cox, Bill That Would Stop the Government Buying Data Without a Warrant Passes Key Hurdle, Vice (July 19, 2023, 11:19 AM), https://www.vic‌e.com/en/article/wxjgd4/fourth-amendment-is-not-for-sale-act-passes-committee [https://per‌ma.cc/GVB6-6KK7]. The Protect Liberty and End Warrantless Surveillance Act, which incorporates FAINSFA in full, passed through the House Judiciary Committee by a vote of 35-2. H.R. 6570, 118th Cong. (2023); see also H.R. 6570—Protect Liberty and End Warrantless Surveillance Act of 2023, Congress.gov, https://www.congress.gov/bill/118th-co‌ngress/house-bill/6570/all-actions-without-amendments [https://perma.cc/3XJS-Y9XC] (last visited May 15, 2024). The bipartisan, bicameral Government Surveillance Reform Act exceeds even FAINFSA in the information it would protect. H.R. 6262, 118th Cong. (2023); S. 3234, 118th Cong. (2023). The House of Representatives, by voice vote, adopted the Davidson-Jacobs Amendment to the National Defense Authorization Act, which would have prohibited the Department of Defense from purchasing U.S. persons’ protected information without a warrant. H.Amdt.256 to H.R. 2670, Congress.gov (July 14, 2023), https://www.cong‌ress.gov/amendment/118th-congress/house-amendment/256/text?s=3&r=5 [https://perma.cc/‌U8KM-X75W]. For an overview of the threat to privacy that data brokers present and an evaluation of certain legislative proposals, see Emile Ayoub & Elizabeth Goitein, Closing the Data Broker Loophole, Brennan Ctr. for Just. (Feb. 13, 2024), https://www.brennancenter.org/‌our-work/research-reports/closing-data-broker-loophole [https://perma.cc/S3H5-5T7U]. ↑
  21.  See Biden Signs Reauthorization of Surveillance Program into Law Despite Privacy Concerns, NPR (Apr. 20, 2024, 9:54 PM), https://www.npr.org/2024/‌04/20/1246‌076114/sen‌ate-passes-reauthorization-surveillance-program-fisa [https://perma.cc/M5XF-LV5R] (“The reauthorization faced a long and bumpy road to final passage Friday after months of clashes between privacy advocates and national security hawks pushed consideration of the legislation to the brink of expiration.”); see also Preston Marquis & Molly E. Reynolds, House Passes Section 702 Reauthorization, Lawfare (Apr. 16, 2024, 12:59 PM), https://www.lawfaremedia‌.org/article/house-passes-section-702-reauthorization [https://perma.cc/78RP-RGB8] (describing the two-year reauthorization as a “key concession” to ensure the bill’s passage). ↑
  22.  On the nature of the reforms, see infra notes 252–56. A commission was established to “consider ongoing reforms.” Reforming Intelligence and Securing America Act, Pub. L. No. 118-49, § 18(c), 138 Stat. 885 (2024) (codified as amended at 50 U.S.C. § 1881a); see also David Aaron, Unpacking the FISA Section 702 Reauthorization Bill, Just Sec. (Apr. 18, 2024), https://www.justsecurity.org/94771/unpacking-the-fisa-section-702-reauthorization-bill/ [https://perma.cc/XE4T-MVM3]. The Chair of the Senate Intelligence Committee, Senator Mark Warner, acknowledged drafting problems with the reauthorization bill and promised to work towards improvements this summer. Noah Chauvin, Too Much Power for Spy Agencies, Brennan Ctr. for Just. (Apr. 23, 2024), https://www.brennancenter.org/our-work/analysis-opi‌nion/too-much-power-spy-agencies [https://perma.cc/J438-M9P9]. One upshot of the fight was that the FISA reform bill will come to the House floor for passage by simple majority, rather than requiring a two-thirds vote as leadership originally had planned. See Marquis & Reynolds, supra note 21. ↑
  23.  Off. of the Dir. of Nat’l Intel., Senior Advisory Grp., Panel on Commercially Available Info., Report to the Director of National Intelligence 2 (Jan. 27, 2022) [hereinafter ODNI Report], https://www.dni.gov/files/ODNI/documents/assessments/ODNI-Declassified-Repor‌t-on-CAI-January2022.pdf [https://perma.cc/69EZ-2NK2]. ↑
  24.  Press Release, Fed. Trade Comm’n, FTC Order Prohibits Data Broker X-Mode Social and Outlogic from Selling Sensitive Location Data (Jan. 9, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/01/ftc-order-prohibits-data-broker-x-mode-social-outlogic-selling-sensitive-location-data [https://perma.cc/2RNF-JBTP]. On May 1, 2024, the FTC released its final order against InMarket in which it prohibited the data aggregator from sharing or selling sensitive location data for advertising and marketing purposes. Press Release, Fed. Trade Comm’n, FTC Finalizes Order with InMarket Prohibiting It from Selling or Sharing Precise Location Data (May 1, 2024), https://www.ftc.gov/news-events/news/pre‌ss-releases/2024/05/ftc-finalizes-order-inmarket-prohibiting-it-selling-or-sharing-precise-loc‌ation-data [https://perma.cc/B6XR-578H]. ↑
  25.  See Letter from Ron Wyden, U.S. Sen., to Avril Haines, Dir. of Nat’l Intel. (Jan. 25, 2024), https://www.wyden.senate.gov/imo/media/doc/signed_wyden_letter_to_dni_re_nsa_p‌urchase_of_domestic_metadata_and_ftc_order_on_data_brokers_with_attachments.pdf [https://perma.cc/EHJ8-69ZH]; Charlie Savage, N.S.A. Buys Americans’ Internet Data Without Warrants, Letter Says, N.Y. Times (Jan. 25, 2024), https://www.nytimes.com/2024/‌01/25/us/politics/nsa-internet-privacy-warrant.html [https://perma.cc/5GVM-RXXR]. ↑
  26.  See, e.g., ACLU v. Clapper, 785 F.3d 787, 823–24 (2d Cir. 2015) (declining to address whether the NSA’s bulk data collection pursuant to Section 215 violated the Fourth Amendment); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402, 414, 418 (2013) (dismissing for want of Article III standing the claim that § 1881a of the Foreign Intelligence Surveillance Act of 1978 is unconstitutional); Schuchardt v. President of the United States, 802 F. App’x 69, 76–77 (3d Cir. 2020); Obama v. Klayman, 800 F.3d 559, 562 (D.C. Cir. 2015). ↑
  27.  See Barry Friedman, Lawless Surveillance, 97 N.Y.U. L. Rev. 1143, 1204–14 (2022) (providing a constitutional argument of precisely this nature). ↑

  28.  In Carpenter v. United States, the Supreme Court barred warrantless collection of over six days of cell site location information, despite such collection ostensibly being permitted by the Stored Communications Act. 138 S. Ct. 2206, 2216–19 (2018). But the Court went no further. In that decision, the Chief Justice expressed the need to move cautiously, lest the Court “embarrass the future.” Id. at 2220 (quoting Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944)). Actual legislation will provide the Court with an opportunity to evaluate the specific protections it embodies, as well as government arguments about the utility of the data collected. See, e.g., Berger v. New York, 388 U.S. 41, 44 (1967) (evaluating constitutionality of wiretapping in context of New York’s law); see infra notes 332–40 and accompanying text (discussing how decisions like Berger have led to further legislation). ↑

The Nullity Doctrine

The Federal Rules of Civil Procedure permit litigants to make changes to the substance of their initial pleading. Those changes raise a constitutional question when the initial pleading fails to establish a constitutionally required element of a federal court’s jurisdiction: May the court permit the change, or must it dismiss the complaint as a nullity? The federal circuit courts are split in their answers to that question, with some circuits even issuing internally inconsistent holdings under different procedural rules. But regardless of the procedural rule at issue, the answer should be the same: Article III’s jurisdictional requirements do not prohibit procedural moves from curing a jurisdictional defect. Taking that position, this Note contributes the only thorough analysis of the so-called “nullity doctrine” and its vices and, in the process, clarifies the relationship between Article III’s jurisdictional requirements and the procedural rules that effectuate them.

Introduction

Federal court litigants routinely change the substance of their initial pleading, often through amendment, supplementation, or party substitution. But otherwise routine changes raise a constitutional question when the original complaint fails to establish a constitutionally required element of the court’s jurisdiction. In those cases, courts must determine if the complaint must be dismissed without further action, or if the jurisdictional defect can be remedied. Some courts permit the jurisdictional defect to be remedied through an applicable Federal Rule of Civil Procedure. Other courts hold that the complaint is a legal nullity that must be dismissed—a position often referred to as the “nullity doctrine.”1 1.See, e.g., 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531 n.61 (3d ed. Supp. 2022) (using the term “‘nullity’ doctrine”); Fund Liquidation Holdings LLC v. Bank of Am. Corp., 991 F.3d 370, 386 (2d Cir. 2021) (rejecting the “so-called ‘nullity doctrine’”).Show More Though at first glance the nullity doctrine has some formalistic appeal, a closer look reveals the nullity doctrine as an overly technical and mistaken application of Article III’s jurisdictional requirements—most commonly that of Article III standing.2 2.Two comments on the scope of this Note. First, though the nullity doctrine appears in both constitutional and statutory jurisdictional contexts, this Note deals only with constitutionally defective allegations of jurisdiction and uses the term “nullity doctrine” only in that context. However, this Note’s rejection of the nullity doctrine’s constitutional applications applies with equal force to statutory applications. Second, though the term “standing” has both constitutional and sub-constitutional applications, this Note will use the term exclusively in reference to Article III standing.Show More This Note is the first significant contribution to the academic literature to take that closer look.3 3.The Boston College Law Review published a brief commentary on a nullity doctrine case in 2020. Rory T. Skowron, Comment, Whether Events After the Filing of an Initial Complaint May Cure an Article III Standing Defect: The D.C. Circuit’s Approach, 61 B.C. L. Rev. E. Supp. II.-230 (2020). This Note takes a significantly more comprehensive approach to both the nullity doctrine’s manifestations under multiple federal rules and the nullity doctrine’s interaction with Article III.Show More

The reasoning in support of the nullity doctrine is straightforward. The plaintiff who filed suit failed to plead a constitutionally required element of the court’s jurisdiction. As a result, the court lacks jurisdiction. Because the court lacks jurisdiction, the court cannot entertain a motion to amend or supplement the complaint or to substitute a proper party. And because the jurisdictional defect is constitutional, the Federal Rules of Civil Procedure cannot operate to retroactively cure the defect, even though some of those rules permit pleading changes to relate back to the time the suit was filed. Accordingly, permitting amendment or supplementation of the complaint or a party substitution would amount to an expansion of the court’s subject matter jurisdiction, which on their own terms the federal rules cannot do.4 4.Fed. R. Civ. P. 82 (“These rules do not extend or limit the jurisdiction of the district courts . . . .”).Show More Thus, there is no suit at all—the complaint is a nullity that must be dismissed, and the plaintiff must refile.

Despite that syllogism’s intuitive appeal, there are powerful counterarguments.5 5.This Note does not argue that the nullity doctrine is incorrect because of its formalism, but rather that Article III does not require the nullity doctrine’s formalist approach. This Note takes no position on the utility of formalism as such.Show More The nullity doctrine operates to bar a suit that would ultimately be proper (if there is no proper suit then the dismissal is unremarkable). That renders the nullity doctrine an empty procedural formality. Further, Article III does not regulate the minutiae of federal court procedure—the federal rules do that. And there is no constitutionally prescribed moment that a lawsuit is initiated—where a federal rule permits an amendment, supplementation, or party substitution to relate back to the time of filing, Article III’s jurisdictional requirements do not bar relation back. Regardless, pleading changes do not appear to be an exercise of “judicial Power” within Article III’s meaning, and instead look more like the incidental authority federal courts use to stay executions, award costs, and vacate lower court judgments even where they lack (or are unsure of) jurisdiction. And the nullity doctrine’s principal sub-constitutional support—the judge-made time of filing rule—does not prevent jurisdictional cures to relate back to the time the suit was filed. In fact, though the Supreme Court has never directly addressed the nullity doctrine, Supreme Court dicta expressly reject it and many of the Court’s related cases weigh heavily against it.

The federal circuit courts are split on how to treat facially deficient complaints and the procedural rules that could operate to cure the deficiency, most commonly Rule 15’s amendment and supplementation provisions6 6.Fed. R. Civ. P. 15(a) (“A party may amend its pleading once as a matter of course . . . .”); Fed. R. Civ. P. 15(c) (“[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment changes the party” and other conditions obtain); Fed. R. Civ. P. 15(d) (court may permit a supplemental pleading even where the original pleading “is defective in stating a claim or defense”).Show More and Rule 17(a)(3)’s party substitution provision.7 7.Fed. R. Civ. P. 17(a)(3) (“The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to . . . be substituted into the action.”).Show More The U.S. Courts of Appeals for the Second, Sixth, and Ninth Circuits are split with respect to Rule 17(a)(3)—the Sixth and Ninth Circuits adopting the nullity doctrine and the Second Circuit rejecting it. The Seventh, Ninth, District of Columbia, and Federal Circuits are split with respect to Rule 15—the Federal Circuit adopting the nullity doctrine under Rule 15(a) and the other circuits rejecting it under several of Rule 15’s other provisions. Complicating matters, several circuit courts have issued contradictory holdings with respect to different procedural rules. Despite the Federal Circuit’s adoption of the nullity doctrine under Rule 15(a), the same court rejected the nullity doctrine under Rule 15(d). And despite the Ninth Circuit’s adoption of the nullity doctrine under Rule 17(a)(3), the Ninth Circuit rejected the nullity doctrine under Rules 15(b) and 15(d).

Those courts and panels that have rejected the nullity doctrine have the better position. The nullity doctrine’s central premise—that Article III controls what is ultimately a procedural issue—is incorrect. Article III controls the types of suits that a federal court has the power to resolve, not the methods by which those suits come before a court. We have a lengthy body of procedural rules precisely because Article III does not regulate the types of procedural intricacies implicated by the nullity doctrine.

Despite some courts’ differential treatment of the nullity doctrine under different procedural rules, the nullity doctrine’s claimed constitutional justifications would apply with equal force to any procedural rule that permits a change to a pleading. And because those constitutional justifications do not stand up to scrutiny, the nullity doctrine should be rejected across the board, regardless of the procedural rule at issue. The Supreme Court should grant certiorari in an appropriate case to clarify the relationship between Article III and the procedural rules that operate in its trial courts, and to resolve this trans- and intra-circuit split, which implicates everyday procedural moves under some of the most commonly invoked federal rules.

This Note will make that argument in several parts. Part I will describe in greater depth the circuit split and the varying procedural rules and factual scenarios at issue in the nullity doctrine cases. Part II will examine the nullity doctrine’s claimed constitutional underpinnings and will argue that the pleading changes that the nullity doctrine precludes are not exercises of “judicial Power” within Article III’s meaning. Part III will argue that the time of filing rule does not compel adoption of the nullity doctrine, and in the process will detail Supreme Court decisions that weigh against the nullity doctrine, including Supreme Court dicta expressly rejecting it. Part III will be followed by a brief conclusion.

  1.  See, e.g., 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531 n.61 (3d ed. Supp. 2022) (using the term “‘nullity’ doctrine”); Fund Liquidation Holdings LLC v. Bank of Am. Corp., 991 F.3d 370, 386 (2d Cir. 2021) (rejecting the “so-called ‘nullity doctrine’”). ↑

  2.  Two comments on the scope of this Note. First, though the nullity doctrine appears in both constitutional and statutory jurisdictional contexts, this Note deals only with constitutionally defective allegations of jurisdiction and uses the term “nullity doctrine” only in that context. However, this Note’s rejection of the nullity doctrine’s constitutional applications applies with equal force to statutory applications. Second, though the term “standing” has both constitutional and sub-constitutional applications, this Note will use the term exclusively in reference to Article III standing. ↑

  3.  The Boston College Law Review published a brief commentary on a nullity doctrine case in 2020. Rory T. Skowron, Comment, Whether Events After the Filing of an Initial Complaint May Cure an Article III Standing Defect: The D.C. Circuit’s Approach, 61 B.C. L. Rev. E. Supp. II.-230 (2020). This Note takes a significantly more comprehensive approach to both the nullity doctrine’s manifestations under multiple federal rules and the nullity doctrine’s interaction with Article III. ↑

  4.  Fed. R. Civ. P. 82 (“These rules do not extend or limit the jurisdiction of the district courts . . . .”). ↑

  5.  This Note does not argue that the nullity doctrine is incorrect because of its formalism, but rather that Article III does not require the nullity doctrine’s formalist approach. This Note takes no position on the utility of formalism as such. ↑

  6.  Fed. R. Civ. P. 15(a) (“A party may amend its pleading once as a matter of course . . . .”); Fed. R. Civ. P. 15(c) (“[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment changes the party” and other conditions obtain); Fed. R. Civ. P. 15(d) (court may permit a supplemental pleading even where the original pleading “is defective in stating a claim or defense”). ↑

  7.  Fed. R. Civ. P. 17(a)(3) (“The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to . . . be substituted into the action.”). ↑

Silencing Litigation Through Bankruptcy

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use of bankruptcy. Whereas the current literature largely discusses mass tort bankruptcy from a doctrinal, constitutional, or economic perspective, this Article examines how bankruptcy proceedings like these cause direct harms to survivors, to public trust in the justice system, and to the corporate economy. It traces the evolution of defendants’ use of bankruptcy to resolve mass torts from asbestos, IUD, and breast implant product liability litigation to its present-day use in controversies involving the Catholic Church, Purdue Pharma, the Weinstein Companies, USA Gymnastics, the Boy Scouts of America, Alex Jones’s Infowars, and Johnson & Johnson. The Article shows how the prior use of reorganization for mass torts created the necessary conditions to allow defendants to use bankruptcy to silence people and facilitate cover-ups in a wider variety of onslaught litigation. It concludes with a normative proposal for the narrow circumstances in which courts should allow bankruptcy to be used to deal with onslaught litigation, while still preserving the voices of those harmed.

Introduction

“I do not forgive you.”1 1.Jeremy Hill, ‘I Do Not Forgive You:’ Opioid Victims Address Sacklers Directly, Bloomberg (Mar. 10, 2022), https://www.bloomberg.com/news/articles/2022-03-10/sacklers-to-hear-from-opioid-victims-live-in-bankruptcy-court [https://perma.cc/2EHY-S4VW].Show More

That is what over two dozen individuals told three members of the Sackler family, the owners of the now-notorious Purdue Pharma drug company, as part of a larger recounting of how the immensely addictive painkiller OxyContin destroyed lives and killed loved ones.2 2.Id.; see also Brian Mann, For the First Time, Victims of the Opioid Crisis Formally Confront the Sackler Family, NPR (Mar. 10, 2022, 4:51 PM), https://www.npr.org/2022/‌03/10/1085174528/sackler-opioid-victims [https://perma.cc/6X8K-MRVB] (detailing the testimonies).Show More The Sacklers had to confront, in person, stories of dead children, lost spouses, and babies born with opioid dependencies.3 3.Hill, supra note 1.Show More

This opportunity for survivors and families of victims to be heard took place during Purdue Pharma’s chapter 11 bankruptcy case through which it sought to reorganize.4 4.Id.Show More Survivors and their families fought hard for the chance to face the Sacklers directly, which may ring as atypical for a legal proceeding that would resolve the claims that they held against Purdue Pharma and the Sacklers.5 5.See Mann, supra note 2 (noting the Sacklers’ lack of an apology for years during the opioid crisis).Show More That they asked and were allowed to confront the Sacklers as part of Purdue Pharma’s reorganization proceeding indeed was atypical for a bankruptcy case and also was unusual of most civil lawsuits. But the essence of what survivors and families of victims sought—for their allegations to be heard and to have some closure regarding their experiences—is precisely part of what the Sacklers were trying to avoid via Purdue Pharma’s chapter 11 case.

The Sacklers were not misguided in their expectations of what bankruptcy might provide them. That survivors and their families—in bankruptcy terms, claimants or creditors—had a voice in Purdue Pharma’s reorganization, including vis-à-vis related third parties like the Sacklers, was extraordinary. Some claimants in Purdue Pharma received confrontational justice. More typical of civil lawsuits, including multidistrict litigation of complex cases, is that plaintiffs have a robust ability, through their counsel, to engage in discovery about the alleged harms, to participate in the litigation, and to possibly gain some closure.

This process for the vindication of rights provides procedural justice, which supports the participation and dignity values that are vital for people to perceive legal processes as legitimate, and which is part of the fundamental constitutional principle of due process.6 6.See Pamela Foohey, A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy, 60 B.C. L. Rev. 2297, 2313–16 (2019) (discussing procedural justice); David Resnick, Due Process and Procedural Justice, in 18 Nomos 206 (J. Roland Pennock & John W. Chapman eds., 1977) (linking due process and procedural justice); infra Section IV.A.Show More Without procedural justice, those who allege harm suffer further from an inability to “have their wills ‘counted’[] in societal decisions they care about,” and people more generally lose faith in the legal system.7 7.Victor D. Quintanilla & Michael A. Yontz, Human-Centered Civil Justice Design: Procedural Justice and Process Value Pluralism, 54 Tulsa L. Rev. 113, 115, 140–41 (2018) (quoting Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights—Part I, 1973 Duke L.J. 1153, 1172).Show More The disappearance of opportunities for would-be plaintiffs to litigate their claims against defendants like the Sacklers when businesses seek to reorganize is exactly why for-profit and nonprofit corporations,8 8.In this Article, we generally use the term “corporation” to refer to the for-profit and nonprofit business entities that file chapter 11. Although not all businesses that have filed chapter 11 are organized as corporations, such as some of the Catholic dioceses, the majority are. For simplicity, we refer to businesses as “corporations.”Show More and the people associated with those businesses, are increasingly using chapter 11 to deal with what we term in this Article onslaught litigation.9 9.This term is inspired by the U.S. Court of Appeals for the Second Circuit’s discussion of the trust established in Johns-Manville’s chapter 11 case, which it filed to deal with mass tort litigation. Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 640 (2d Cir. 1988) (“[T]he Plan seeks to ensure that health claims can be asserted only against the Trust and that Manville’s operating entities will be protected from an onslaught of crippling lawsuits that could jeopardize the entire reorganization effort.” (emphasis added)). Jonathan Lipson recently similarly defined what he terms “social debt” bankruptcies: “Social debt is financial liability for serious (e.g., criminal) misconduct, often involving violations of health and safety laws, made unsustainable due to persistent governance failures of transparency and accountability.” Jonathan C. Lipson, The Rule of the Deal: Bankruptcy Bargains and Other Misnomers, 97 Am. Bankr. L.J. 41, 43 (2023) [hereinafter Lipson, The Rule of the Deal]. Our definition of “onslaught litigation” is broader. It focuses less on the normative qualities of the underlying harms and more on the operational and time resources, including public relations resources, that a corporation may project it will have to devote to the litigation. Onslaught litigation includes violations of health and safety laws, sexual harassment, and criminal misconduct, but also may include, for example, allegations of underpaying workers, of price fixing, or of deceptive trade practices.Show More

Onslaught litigation, as we define the term, refers to alleged wrongful conduct that produces claims from multiple plaintiffs against the same defendant or group of defendants. When collected, the magnitude of claims and lawsuits presents the possible financial or operational crippling of the defendants over the long-term, or else will require the defendant to devote tremendous operational resources and time to the litigation because of its public saliency. Mass tort litigation is an example of onslaught litigation, such as the opioid liability faced by Purdue Pharma and the Sacklers, or the asbestos multidistrict and class action litigation that started in the 1980s.10 10.Infra Sections II.C, III.B.Show More

Although onslaught litigation typically presents as mass tort claims, it encompasses many more kinds of lawsuits.11 11.Mass tort litigation refers to the situation where many individuals have tort-based claims against a single or a handful or persons (or entities). See Douglas G. Smith, Resolution of Mass Tort Claims in the Bankruptcy System, 41 U.C. Davis L. Rev. 1613, 1616–26 (2008) (overviewing mass tort litigation); infra Section I.B.Show More It includes claims stemming from alleged harms that affect a smaller group of people and may yield only a handful of lawsuits, but which reflect very poorly on a corporation and its directors, officers, and owners. Examples of this type of onslaught litigation include allegations of rampant sexual abuse and harassment, such as Harvey Weinstein’s abuse and harassment of almost one hundred women.12 12.See Amelia Schonbek, The Complete List of Allegations Against Harvey Weinstein, N.Y.: The Cut (Jan. 6, 2020), https://www.thecut.com/2020/01/harvey-weinstein-complete-list-allegations.html [https://perma.cc/KE2C-Z5KK] (listing allegations).Show More Onslaught litigation also encompasses the prominent defamation cases against Alex Jones and Infowars for Jones’s repeatedly calling the 2012 shooting at the Sandy Hook Elementary School in Connecticut a “giant hoax.”13 13.Alex Jones, Infowars, and the Sandy Hook Defamation Suits, First Amend. Watch (Dec. 2, 2022), https://firstamendmentwatch.org/deep-dive/alex-jones-infowars-and-the-sandy-hoo‌k-defamation-suits [https://perma.cc/YX2J-BTJN].Show More

The critical connection among these examples is the significance of the accusations and lawsuits to a corporation’s continued smooth functioning now or continued function in the future. Magnitude refers both to the number of potential lawsuits, such as with mass torts, and to the public outrage and shock over even a few allegations and lawsuits. The prominence and public saliency of the allegations make the resulting lawsuits onslaught litigation. When faced with onslaught litigation, corporations’ directors, officers, and owners naturally want to truncate the lawsuits and minimize additional public discussion of the allegations.

Reorganizing via chapter 11 promises to collect and resolve most or all of the lawsuits and claims arising from the alleged wrongdoing. It also has the potential to decrease information available to the public about the allegations. 14 14.A chapter 11 filing, initially, will require a corporation to disclose more information than it would be required to disclose in civil litigation, especially given the use of protective orders. This Article is concerned with the totality of information that may be exposed via news stories about litigation and through litigation filed over decades, which a chapter 11 filing will cut off. Stated differently, corporations are trading the possibility of alleged wrongdoings circulating in the public for decades (or longer) for chapter 11’s immediate, short-term, and predictable information disclosure.Show More When corporations file chapter 11 in the wake of onslaught litigation, what they seek is two-fold: to bypass procedural justice and to shut down discussion of their purported wrongdoings.

Based on past chapter 11 proceedings, corporations’ directors and officers expect that negotiations will be allowed to take place between only a subset of parties, that discovery requests can be pushed back against forcefully, and that requests for examiners can be successfully fought. They also expect that related claims against business entities and people arising from the alleged wrongdoings that do not file bankruptcy will be swept into the reorganization case. They further expect that calls for shortening the reorganization process will be heeded and that bankruptcy law provisions designed to ensure claimants can vote on the proposed plan will only be nominally followed—usually under the guise of ensuring that victims receive as much money as possible.

Silencing people and sweeping the alleged harms under the proverbial rug become a byproduct of reassurances about making sure that victims are treated well. But it is the corporation and its leaders that benefit, not the people who they hurt. The chapter 11 case will end with a forever resolution of onslaught litigation claims against the corporation and third parties and with little public understanding of what the corporation sought to escape through bankruptcy. The corporation (and its owners) will continue to operate, effectively freed from its wrongdoing.15 15.See infra Part II for an overview of chapter 11 as applied to onslaught litigation.Show More

This Article argues that it is time for this destructive, targeted use of bankruptcy to be reined in and proposes how to limit and control those chapter 11 cases filed with a primary purpose of resolving onslaught litigation. In the past decade, chapter 11 cases filed to deal with onslaught litigation have made headline news. Some of these filings are discussed in the media and literature as mass tort bankruptcy cases such as: Catholic dioceses,16 16.Rebecca Klapper, 4 New York Dioceses File for Bankruptcy Due to Flood of Sexual Abuse Lawsuits, Newsweek (Aug. 13, 2021, 9:42 AM), https://www.newsweek.com/4-new-york-dioceses-file-bankruptcy-due-flood-sexual-abuse-lawsuits-1619136 [https://perma.cc/‌4G67-MLMT].Show More the Boy Scouts of America,17 17.Cara Kelly, Nathan Bomey & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy in the Face of Thousands of Child Abuse Allegations, USA Today (May 18, 2020, 4:51 PM), https://www.usatoday.com/in-depth/news/investigations/2020/02/18/boy-scouts-bsa-chapter-11-bankruptcy-sexual-abuse-cases/1301187001 [https://perma.cc/M9Q7-WMH5].Show More and Purdue Pharma.18 18.Jan Hoffman & Mary Williams Walsh, Purdue Pharma, Maker of OxyContin, Files for Bankruptcy, N.Y. Times (Nov. 24, 2020), https://www.nytimes.com/2019/09/15/health/‌purdue-pharma-bankruptcy-opioids-settlement.html [https://perma.cc/7BMJ-S366].Show More Others involve onslaught litigation that may not be characterized as mass tort litigation: Bikram Yoga,19 19.Tracy Rucinski, Bikram Yoga Guru Seeks Bankruptcy in Wake of Harassment Claims, Reuters (Nov. 10, 2017, 3:55 PM), https://www.reuters.com/article/us-bikram-choudhury-yoga-bankruptcy/bikram-yoga-guru-seeks-bankruptcy-in-wake-of-harassment-claims-idUSKBN1DA2SA [https://perma.cc/9U6P-5FP2].Show More the Weinstein Companies,20 20.Brooks Barnes, Weinstein Company Files for Bankruptcy and Revokes Nondisclosure Agreements, N.Y. Times (Mar. 19, 2018), https://www.nytimes.com/2018/03/19/business/‌weinstein-company-bankruptcy.html [https://perma.cc/TE8R-MMBV].Show More USA Gymnastics,21 21.Rachel Axon, Nancy Armour & Tim Evans, USA Gymnastics Files for Bankruptcy, a Move Related to Larry Nassar’s Sexual Abuse Lawsuits, USA Today (Dec. 5, 2018, 5:40 PM), https://www.usatoday.com/story/sports/olympics/2018/12/05/usa-gymnastics-files-bankruptc‌y-nassar-lawsuits/2218546002 [https://perma.cc/3GEG-HBS3].Show More and Remington and Infowars after the Sandy Hook shooting.22 22.Sarah Jorgensen, Jason Hanna & Erica Hill, Sandy Hook Families Reach $73 Million Settlement with Gun Manufacturer Remington, CNN (Feb. 16, 2022, 5:04 AM), https://www.cnn.com/2022/02/15/us/sandy-hook-shooting-settlement-with-remington/index.‌html [https://perma.cc/BPT4-NFVJ]; Derrick Bryson Taylor, Alex Jones’s Infowars Files for Bankruptcy, N.Y. Times (Apr. 18, 2022, 5:15 PM), https://www.nytimes.com/2022/04/18/us/‌alex-jones-infowars-bankruptcy.html [https://perma.cc/2KJR-TWD3].Show More More recently, Johnson & Johnson (“J&J”) and 3M strategically placed certain of their corporate entities into bankruptcy to deal with onslaught litigation about particular products—claims that talcum powder caused cancer in hundreds of thousands of women in J&J’s case and claims that military earplugs harmed United States servicemembers in 3M’s case.23 23.Johnny Magdaleno, Major Bankruptcy Case Hits Indianapolis as Veterans Claim Combat Earplugs Were Faulty, IndyStar (Aug. 17, 2022, 7:21 AM), https://www.indystar.com/story/‌news/2022/08/16/major-bankruptcy-case-hits-indianapolis-veterans-sue-3m-subsidiary/6540‌4066007 [https://perma.cc/8KP3-5TCH]; Brian Mann, Rich Companies Are Using a Quiet Tactic to Block Lawsuits: Bankruptcy, NPR (Apr. 2, 2022, 7:00 AM), https://www.npr.org/‌2022/04/02/1082871843/rich-companies-are-using-a-quiet-tactic-to-block-lawsuits-bankrup‌tcy [https://perma.cc/R5QT-JCG6]. The Third Circuit subsequently dismissed J&J’s corporate entity’s case as a bad-faith filing. See infra note 120 and accompanying text. On April 4, 2023, J&J filed the same corporate entity in chapter 11 for a second time and, in doing so, proposed a $8.9 billion settlement. Evan Ochsner, Cancer Victims’ Lawyers Vow to Fight J&J Proposed Settlement, Bloomberg L. (Apr. 6, 2023, 1:40 PM), https://news.bloomberglaw.com/bankrupt‌cy-law/cancer-victims-lawyers-vow-to-fight-j-j-proposed-settlement [https://perma.cc/5PV‌D-XTL6]. Ralph Brubaker characterized the filing as a “rather audacious ploy.” Steven Church & Jef Feeley, J&J Begins ‘Audacious’ Return to Failed Cancer Settlement Tactic, Bloomberg L. (Apr. 5, 2023, 12:28 PM), https://news.bloomberglaw.com/bankruptcy-law/j-j-begins-audacious-return-to-failed-cancer-settlement-tactic [https://perma.cc/THA9-L7VP].Show More

Scholars have recently written about the problems inherent in using the chapter 11 process to deal with mass tort liabilities, including issues related to third-party releases, judge shopping, bypassing procedures, and the much-decried Texas Two-Step.24 24.See generally Melissa B. Jacoby, Sorting Bugs and Features of Mass Tort Bankruptcy, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 3) [hereinafter Jacoby, Sorting Bugs and Features], https://ssrn.com/abstract=4323151 [https://perma.cc/EG3B-7378] (detailing the extraordinary relief that corporations seek in bankruptcy, with a focus on mass tort bankruptcies); Jonathan C. Lipson, First in Time; First is Right: Comments on Levitin’s Poison Pill, 101 Tex. L. Rev. Online 33, 34 (2022) [hereinafter Lipson, First in Time] (discussing Adam Levitin’s article, Purdue’s Poison Pill, and third-party releases, appellate review, and venue); Ralph Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy, 131 Yale L.J.F. 960, 964–66 (2022) [hereinafter Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy] (advocating prohibiting nonconsensual third-party releases); Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. 38, 38–39 (2022) (discussing the Texas Two-Step, fraudulent transfer law, and good-faith challenges to chapter 11 filings); Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079, 1083–84 (2022) [hereinafter Levitin, Purdue’s Poison Pill] (discussing coercive restructuring techniques, lack of appellate review, and forum shopping); Samir D. Parikh, The New Mass Torts Bargain, 91 Fordham L. Rev. 447, 455 (2022) [hereinafter Parikh, The New Mass Torts Bargain] (overviewing the intersection of mass torts and bankruptcy); Samir D. Parikh, Scarlet-Lettered Bankruptcy: A Public Benefit Proposal for Mass Tort Villains, 117 Nw. U. L. Rev. 425, 429–31 (2022) [hereinafter Parikh, Scarlet-Lettered Bankruptcy] (proposing that companies facing mass torts that file bankruptcy emerge as public benefit corporations); Lindsey D. Simon, Bankruptcy Grifters, 131 Yale L.J. 1154, 1159–61 (2022) [hereinafter Simon, Bankruptcy Grifters] (detailing how and when third-party releases should be granted); Melissa B. Jacoby, Shocking Business Bankruptcy Law, 131 Yale L.J.F. 409, 411–12 (2021) [hereinafter Jacoby, Shocking Business Bankruptcy Law] (pinpointing the harms of “off-label bankruptcy” and “bankruptcy à la carte,” including third-party releases); Adam J. Levitin, The Texas Two-Step: The New Fad in Fraudulent Transfers, Credit Slips (July 19, 2021, 10:50 AM) [hereinafter Levitin, The Texas Two-Step], https://www.creditslips.org/creditslips/2021/07/the-texas-two-step.html [https://perma.cc/MUQ2-AJDQ] (detailing the mechanics of the Texas Two-Step).Show More But the role of the bankruptcy system in people losing their ability to take part in litigation and the damage to procedural justice has been given short shrift—particularly in the wider context of onslaught litigation which may or may not be categorized as arising from a mass tort. Likewise absent from discussion in the literature is the way in which denying survivors a voice in onslaught litigation reorganization cases prevents light from being shed on problems such that the company (and its owners) can cabin how much public scrutiny they face.

This Article brings those concerns to the forefront. It thereby advances the literature from a discussion of mass tort bankruptcies largely tied to bankruptcy law provisions, constitutional concerns, and a traditional view of reorganization as a monetary-value-preserving venture,25 25.A few scholars have called out and deviated from this more traditional focus. See Jacoby, Sorting Bugs and Features, supra note 24 (manuscript at 11) (emphasizing the non-economic constitutional rights of future claimants); Jonathan C. Lipson, “Special”: Remedial Schemes in Mass Tort Bankruptcies, 101 Tex. L. Rev. 1773, 1778 (2023) [hereinafter Lipson, Remedial Schemes], (assessing “what actually happened in Purdue Pharma along familiar dimensions of ‘exit,’ ‘voice,’ and ‘loyalty’” (citing John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L. Rev. 370, 376 (2000))); Lipson, Rule of the Deal, supranote 9, at 44 (interrogating questions of transparency and accountability in “social debt” bankruptcies); infra notes 299–302 and accompanying text.Show More to an examination of the direct harms to people and public trust in corporations. It also expands the discussion of chapter 11 cases filed in the wake of litigation from mass torts to the broader context of our concept of onslaught litigation. It thus links headliner chapter 11 filings from the past couple of decades with a full history of mass tort bankruptcies in a manner not yet explored, but which underscores and explicates an integral motivator of recent chapter 11 filings that have provoked outrage and calls for a reexamination of the business bankruptcy system.

To make these points—and to explain our solutions—the Article proceeds as follows. Part I overviews how a corporation would resolve onslaught litigation, with a focus on mass tort cases, outside of the bankruptcy system. Part II compares this to how corporations can manage onslaught litigation in the bankruptcy system, including tracing the evolution of chapter 11’s use to deal with mass torts from asbestos litigation through intrauterine device (“IUD”) and breast implant product liability litigation. Part III relies on three case studies—Catholic dioceses, Purdue Pharma, and Infowars and Alex Jones—to build on how the prior use of bankruptcy to deal with mass torts has created the necessary conditions to allow defendants to leverage chapter 11 to silence victims and facilitate cover-ups in a wider variety of onslaught litigation. Part IV turns to a detailed explanation of the problems—the denial of victims’ voices, the destruction of procedural justice, and the suppression of information. Part V offers solutions. Although solving bankruptcy’s silencing problem may, almost necessarily, require more costly and longer reorganization cases, we argue that such a cost is worth it for people to have a voice and for upholding the integrity of both the justice system and the corporate economy.

  1.  Jeremy Hill, ‘I Do Not Forgive You:’ Opioid Victims Address Sacklers Directly, Bloomberg (Mar. 10, 2022), https://www.bloomberg.com/news/articles/2022-03-10/sacklers-to-hear-from-opioid-victims-live-in-bankruptcy-court [https://perma.cc/2EHY-S4VW]. ↑

  2.  Id.; see also Brian Mann, For the First Time, Victims of the Opioid Crisis Formally Confront the Sackler Family, NPR (Mar. 10, 2022, 4:51 PM), https://www.npr.org/2022/‌03/10/1085174528/sackler-opioid-victims [https://perma.cc/6X8K-MRVB] (detailing the testimonies). ↑

  3.  Hill, supra note 1. ↑

  4.  Id. ↑

  5.  See Mann, supra note 2 (noting the Sacklers’ lack of an apology for years during the opioid crisis). ↑

  6.  See Pamela Foohey, A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy, 60 B.C. L. Rev. 2297, 2313–16 (2019) (discussing procedural justice); David Resnick, Due Process and Procedural Justice, in 18 Nomos 206 (J. Roland Pennock & John W. Chapman eds., 1977) (linking due process and procedural justice); infra Section IV.A. ↑

  7.  Victor D. Quintanilla & Michael A. Yontz, Human-Centered Civil Justice Design: Procedural Justice and Process Value Pluralism, 54 Tulsa L. Rev. 113, 115, 140–41 (2018) (quoting Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights—Part I, 1973 Duke L.J. 1153, 1172). ↑

  8.  In this Article, we generally use the term “corporation” to refer to the for-profit and nonprofit business entities that file chapter 11. Although not all businesses that have filed chapter 11 are organized as corporations, such as some of the Catholic dioceses, the majority are. For simplicity, we refer to businesses as “corporations.” ↑

  9.  This term is inspired by the U.S. Court of Appeals for the Second Circuit’s discussion of the trust established in Johns-Manville’s chapter 11 case, which it filed to deal with mass tort litigation. Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 640 (2d Cir. 1988) (“[T]he Plan seeks to ensure that health claims can be asserted only against the Trust and that Manville’s operating entities will be protected from an onslaught of crippling lawsuits that could jeopardize the entire reorganization effort.” (emphasis added)). Jonathan Lipson recently similarly defined what he terms “social debt” bankruptcies: “Social debt is financial liability for serious (e.g., criminal) misconduct, often involving violations of health and safety laws, made unsustainable due to persistent governance failures of transparency and accountability.” Jonathan C. Lipson, The Rule of the Deal: Bankruptcy Bargains and Other Misnomers, 97 Am. Bankr. L.J. 41, 43 (2023) [hereinafter Lipson, The Rule of the Deal]. Our definition of “onslaught litigation” is broader. It focuses less on the normative qualities of the underlying harms and more on the operational and time resources, including public relations resources, that a corporation may project it will have to devote to the litigation. Onslaught litigation includes violations of health and safety laws, sexual harassment, and criminal misconduct, but also may include, for example, allegations of underpaying workers, of price fixing, or of deceptive trade practices. ↑

  10.  Infra Sections II.C, III.B. ↑

  11.  Mass tort litigation refers to the situation where many individuals have tort-based claims against a single or a handful or persons (or entities). See Douglas G. Smith, Resolution of Mass Tort Claims in the Bankruptcy System, 41 U.C. Davis L. Rev. 1613, 1616–26 (2008) (overviewing mass tort litigation); infra Section I.B. ↑

  12.  See Amelia Schonbek, The Complete List of Allegations Against Harvey Weinstein, N.Y.: The Cut (Jan. 6, 2020), https://www.thecut.com/2020/01/harvey-weinstein-complete-list-allegations.html [https://perma.cc/KE2C-Z5KK] (listing allegations). ↑

  13.  Alex Jones, Infowars, and the Sandy Hook Defamation Suits, First Amend. Watch (Dec. 2, 2022), https://firstamendmentwatch.org/deep-dive/alex-jones-infowars-and-the-sandy-hoo‌k-defamation-suits [https://perma.cc/YX2J-BTJN]. ↑

  14.  A chapter 11 filing, initially, will require a corporation to disclose more information than it would be required to disclose in civil litigation, especially given the use of protective orders. This Article is concerned with the totality of information that may be exposed via news stories about litigation and through litigation filed over decades, which a chapter 11 filing will cut off. Stated differently, corporations are trading the possibility of alleged wrongdoings circulating in the public for decades (or longer) for chapter 11’s immediate, short-term, and predictable information disclosure. ↑

  15.  See infra Part II for an overview of chapter 11 as applied to onslaught litigation. ↑

  16.  Rebecca Klapper, 4 New York Dioceses File for Bankruptcy Due to Flood of Sexual Abuse Lawsuits, Newsweek (Aug. 13, 2021, 9:42 AM), https://www.newsweek.com/4-new-york-dioceses-file-bankruptcy-due-flood-sexual-abuse-lawsuits-1619136 [https://perma.cc/‌4G67-MLMT]. ↑

  17.  Cara Kelly, Nathan Bomey & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy in the Face of Thousands of Child Abuse Allegations, USA Today (May 18, 2020, 4:51 PM), https://www.usatoday.com/in-depth/news/investigations/2020/02/18/boy-scouts-bsa-chapter-11-bankruptcy-sexual-abuse-cases/1301187001 [https://perma.cc/M9Q7-WMH5]. ↑

  18.  Jan Hoffman & Mary Williams Walsh, Purdue Pharma, Maker of OxyContin, Files for Bankruptcy, N.Y. Times (Nov. 24, 2020), https://www.nytimes.com/2019/09/15/health/‌purdue-pharma-bankruptcy-opioids-settlement.html [https://perma.cc/7BMJ-S366]. ↑

  19.  Tracy Rucinski, Bikram Yoga Guru Seeks Bankruptcy in Wake of Harassment Claims, Reuters (Nov. 10, 2017, 3:55 PM), https://www.reuters.com/article/us-bikram-choudhury-yoga-bankruptcy/bikram-yoga-guru-seeks-bankruptcy-in-wake-of-harassment-claims-idUSKBN1DA2SA [https://perma.cc/9U6P-5FP2]. ↑

  20.  Brooks Barnes, Weinstein Company Files for Bankruptcy and Revokes Nondisclosure Agreements, N.Y. Times (Mar. 19, 2018), https://www.nytimes.com/2018/03/19/business/‌weinstein-company-bankruptcy.html [https://perma.cc/TE8R-MMBV]. ↑

  21.  Rachel Axon, Nancy Armour & Tim Evans, USA Gymnastics Files for Bankruptcy, a Move Related to Larry Nassar’s Sexual Abuse Lawsuits, USA Today (Dec. 5, 2018, 5:40 PM), https://www.usatoday.com/story/sports/olympics/2018/12/05/usa-gymnastics-files-bankruptc‌y-nassar-lawsuits/2218546002 [https://perma.cc/3GEG-HBS3]. ↑

  22.  Sarah Jorgensen, Jason Hanna & Erica Hill, Sandy Hook Families Reach $73 Million Settlement with Gun Manufacturer Remington, CNN (Feb. 16, 2022, 5:04 AM), https://www.cnn.com/2022/02/15/us/sandy-hook-shooting-settlement-with-remington/index.‌html [https://perma.cc/BPT4-NFVJ]; Derrick Bryson Taylor, Alex Jones’s Infowars Files for Bankruptcy, N.Y. Times (Apr. 18, 2022, 5:15 PM), https://www.nytimes.com/2022/04/18/us/‌alex-jones-infowars-bankruptcy.html [https://perma.cc/2KJR-TWD3]. ↑

  23.  Johnny Magdaleno, Major Bankruptcy Case Hits Indianapolis as Veterans Claim Combat Earplugs Were Faulty, IndyStar (Aug. 17, 2022, 7:21 AM), https://www.indystar.com/story/‌news/2022/08/16/major-bankruptcy-case-hits-indianapolis-veterans-sue-3m-subsidiary/6540‌4066007 [https://perma.cc/8KP3-5TCH]; Brian Mann, Rich Companies Are Using a Quiet Tactic to Block Lawsuits: Bankruptcy, NPR (Apr. 2, 2022, 7:00 AM), https://www.npr.org/‌2022/04/02/1082871843/rich-companies-are-using-a-quiet-tactic-to-block-lawsuits-bankrup‌tcy [https://perma.cc/R5QT-JCG6]. The Third Circuit subsequently dismissed J&J’s corporate entity’s case as a bad-faith filing. See infra note 120 and accompanying text. On April 4, 2023, J&J filed the same corporate entity in chapter 11 for a second time and, in doing so, proposed a $8.9 billion settlement. Evan Ochsner, Cancer Victims’ Lawyers Vow to Fight J&J Proposed Settlement, Bloomberg L. (Apr. 6, 2023, 1:40 PM), https://news.bloomberglaw.com/bankrupt‌cy-law/cancer-victims-lawyers-vow-to-fight-j-j-proposed-settlement [https://perma.cc/5PV‌D-XTL6]. Ralph Brubaker characterized the filing as a “rather audacious ploy.” Steven Church & Jef Feeley, J&J Begins ‘Audacious’ Return to Failed Cancer Settlement Tactic, Bloomberg L. (Apr. 5, 2023, 12:28 PM), https://news.bloomberglaw.com/bankruptcy-law/j-j-begins-audacious-return-to-failed-cancer-settlement-tactic [https://perma.cc/THA9-L7VP]. ↑

  24.  See generally Melissa B. Jacoby, Sorting Bugs and Features of Mass Tort Bankruptcy, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 3) [hereinafter Jacoby, Sorting Bugs and Features], https://ssrn.com/abstract=4323151 [https://perma.cc/EG3B-7378] (detailing the extraordinary relief that corporations seek in bankruptcy, with a focus on mass tort bankruptcies); Jonathan C. Lipson, First in Time; First is Right: Comments on Levitin’s Poison Pill, 101 Tex. L. Rev. Online 33, 34 (2022) [hereinafter Lipson, First in Time] (discussing Adam Levitin’s article, Purdue’s Poison Pill, and third-party releases, appellate review, and venue); Ralph Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy, 131 Yale L.J.F. 960, 964–66 (2022) [hereinafter Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy] (advocating prohibiting nonconsensual third-party releases); Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. 38, 38–39 (2022) (discussing the Texas Two-Step, fraudulent transfer law, and good-faith challenges to chapter 11 filings); Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079, 1083–84 (2022) [hereinafter Levitin, Purdue’s Poison Pill] (discussing coercive restructuring techniques, lack of appellate review, and forum shopping); Samir D. Parikh, The New Mass Torts Bargain, 91 Fordham L. Rev. 447, 455 (2022) [hereinafter Parikh, The New Mass Torts Bargain] (overviewing the intersection of mass torts and bankruptcy); Samir D. Parikh, Scarlet-Lettered Bankruptcy: A Public Benefit Proposal for Mass Tort Villains, 117 Nw. U. L. Rev. 425, 429–31 (2022) [hereinafter Parikh, Scarlet-Lettered Bankruptcy] (proposing that companies facing mass torts that file bankruptcy emerge as public benefit corporations); Lindsey D. Simon, Bankruptcy Grifters, 131 Yale L.J. 1154, 1159–61 (2022) [hereinafter Simon, Bankruptcy Grifters] (detailing how and when third-party releases should be granted); Melissa B. Jacoby, Shocking Business Bankruptcy Law, 131 Yale L.J.F. 409, 411–12 (2021) [hereinafter Jacoby, Shocking Business Bankruptcy Law] (pinpointing the harms of “off-label bankruptcy” and “bankruptcy à la carte,” including third-party releases); Adam J. Levitin, The Texas Two-Step: The New Fad in Fraudulent Transfers, Credit Slips (July 19, 2021, 10:50 AM) [hereinafter Levitin, The Texas Two-Step], https://www.creditslips.org/creditslips/2021/07/the-texas-two-step.html [https://perma.cc/MUQ2-AJDQ] (detailing the mechanics of the Texas Two-Step). ↑

  25.  A few scholars have called out and deviated from this more traditional focus. See Jacoby, Sorting Bugs and Features, supra note 24 (manuscript at 11) (emphasizing the non-economic constitutional rights of future claimants); Jonathan C. Lipson, “Special”: Remedial Schemes in Mass Tort Bankruptcies, 101 Tex. L. Rev. 1773, 1778 (2023) [hereinafter Lipson, Remedial Schemes], (assessing “what actually happened in Purdue Pharma along familiar dimensions of ‘exit,’ ‘voice,’ and ‘loyalty’” (citing John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L. Rev. 370, 376 (2000))); Lipson, Rule of the Deal, supra note 9, at 44 (interrogating questions of transparency and accountability in “social debt” bankruptcies); infra notes 299–302 and accompanying text. ↑

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