Free Person Holding a Gavel Stock Photo

Nick Tremps

For corporate debtors that submit to the bankruptcy process, the Bankruptcy Code (the “Code”) provides significant benefits to the “honest, but unfortunate debtor” that cannot fully perform its debt obligations.[1]  In a case filed under Chapter 11 of the Code, a corporate debtor may file a plan of reorganization with the bankruptcy court that proposes how the debtor intends to restructure its debts owed to each class of creditors.[2]  Upon confirmation of a plan, the corporate debtor then receives a discharge from any debt that arose prior to the bankruptcy court’s confirmation.[3]  Included in that plan of reorganization, corporate debtors may attempt to include provisions that extend third-party releases to non-debtors that have a direct impact on the debtor’s restructuring.[4]  In other words, a plan may attempt to use the bankruptcy process to extinguish present or future claims held by various third parties against entities that are associated with the debtor.  Where the impaired class or classes of creditors affirmatively consent to the binding plan, courts typically confirm these releases.[5]  But what happens when a third-party creditor votes against the plan and instead seeks to exercise their constitutional right to have their day in court and pursue a claim directly against the non-debtor?  The United States Supreme Court may soon address whether these so-called “non-consensual third-party releases” are permitted by the Code.

While third-party releases are expressly permitted in a plan of reorganization in asbestos cases,[6] circuits have been split for decades about whether this practice is permitted by the Code outside of the asbestos context.  The majority of circuits, including the Second, Third, Fourth, Sixth, Seventh, and Eleventh permit third-party releases,[7] albeit in rare or extraordinary circumstances and when “certain factors” are met.[8]  Conversely, the Fifth and Tenth Circuits categorically bar these releases based on Section 524(e) of the Code.[9]  That provision provides that the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.”[10]

Following a petition for a writ of certiorari last month, the Supreme Court has a long-awaited opportunity to resolve this circuit split.  In Highland Capital Management, L.P. v. NexPoint Advisors, L.P.,[11] the Fifth Circuit, following circuit precedent, held that Section 524(e) of the Code barred the debtor from releasing certain non-debtors from liability in its chapter 11 plan of reorganization.[12]  Thus, the debtor’s attempt to exculpate certain non-debtors from liability was precluded by the Fifth Circuit’s steadfast interpretation of Section 524(e).[13]  In its petition filed in January, the reorganized debtor, Highland Capital Management, urges the Supreme Court to adopt the majority position, contending that Section 524(e) is “simply a saving clause” and that the plain language of Section 524(e) “simply states that the discharge of a debtor’s liability on a debt does not itself affect any other creditor’s liability on that same debt.”[14]  Thus, according to the debtor, Section 524(e), by its plain language, does not preclude a bankruptcy court from confirming a plan containing non-debtor exculpations.  Notably, NexPoint Advisors, the respondent in that case, also filed a petition for a writ of certiorari last month, asking the Supreme Court to use this case as a vehicle to “restore uniformity among the circuits”[15] and put an end to this “abus[ive]” practice.[16]  While the debtor seeks review of non-debtor exculpations, NexPoint Advisors points out that “the fact that this case involves third-party exculpations that limit liability to gross negligence or willful misconduct, rather than third-party releases that eliminate liability altogether, does not diminish the importance of the issue or make this case a faulty vehicle.”[17]

NexPoint Advisor’s argument is well-founded.  While the circuits that do permit third-party releases may do so in limited or extraordinary circumstances,[18] one bankruptcy judge recently noted that “[a]lmost every proposed Chapter 11 Plan that I receive includes proposed releases.”[19]  From sexual-abuse scandals[20] to the crippling opioid epidemic,[21] it has become commonplace for a corporate debtor to file a plan of reorganization in which non-debtors receive a release from liability in exchange for a pecuniary contribution to the debtor’s reorganization.  Accordingly, this case provides the Supreme Court an opportunity to resolve a contentious issue that has meaningful practical implications.  For example, the various interpretations of Section 524(e) among the circuits increases the likelihood for corporate debtors to forum shop in search of a bankruptcy court that endorses third-party releases contained in a plan of reorganization.[22]  Moreover, the lack of clarity surrounding the permissibility of third-party releases and when they are integral to the debtor’s restructuring leads to uncertainty for all parties involved when negotiating a plan of reorganization.  Therefore, the time has come for the Supreme Court to determine what Section 524(e) actually means and this case welcomes that determination.

[1] John M. Czarnetzky, The Individual and Failure: A Theory of the Bankruptcy Discharge, 32 Ariz. St. L.J. 393, 412 (2000).

[2] Michael S. Etkin & Nicole M. Brown, Third Party Releases?–Not So Fast! Changing Trends and Heightened Scrutiny, 29 AIRA J. 22, 22 (2015).

[3] 11 U.S.C. § 1141(d)(1)(A).

[4] Dorothy Coco, Third-Party Bankruptcy Releases: An Analysis of Consent Through the Lenses of Due Process and Contract Law, 88 Fordham L. Rev. 231, 232 (2019); see also Etkin & Brown, supra note 2, at 22 (“A debtor might seek to extend third party releases to co-debtors, officers, directors, lenders, parents, guarantors, sureties, or insurance carriers where those parties could assert post-confirmation indemnification claims against the debtor, or where the non-debtor party is a potential source of funding for the plan of reorganization.”).

[5] Coco, supra note 4, at 232–33.

[6] See 11 U.S.C. § 524(g), (h).

[7] See In re Metromedia Fiber Network, Inc., 416 F.3d 136, 141 (2d Cir. 2005); In re Millennium Lab Holdings II, LLC, 945 F.3d 126, 140 (3d Cir. 2019); Menard-Sanford v. Mabey (In re A.H. Robins Co.) 880 F.2d 694, 702 (4th Cir. 1989); In re Dow Corning Corp., 280 F.3d 648, 657 (6th Cir. 2002); In re Airadigm Commc’ns, Inc., 519 F.3d 640, 656 (7th Cir. 2008); In re Seaside Eng’g & Surveying, Inc., 780 F.3d 1070, 1078 (11th Cir. 2015).

[8] Coco, supra note 4, at 240.

[9] See In re Pacific Lumber Co., 584 F.3d 229, 252–53 (5th Cir. 2009); In re W. Real Estate Fund, Inc., 922 F.2d 592, 600 (10th Cir. 1990).

[10] 11 U.S.C. § 524(e).

[11] In the Matter of Highland Capital Management, L.P., 48 F.4th 419 (5th Cir. 2022).

[12] Id. at 437–38.

[13] Id.

[14] Brief for a Writ of Certiorari at 4, Highland Capital Management, L.P. v. NexPoint Advisors, L.P., No. 22-631 (petition for cert. filed Jan. 5, 2023).

[15] Brief for Respondents at 2, Highland Capital Management, L.P. v. NexPoint Advisors, L.P., No 22-631 (petition for cert. filed Feb. 10, 2023).

[16] Id.

[17] Id. at 10.

[18] See Etkin & Brown, supra note 2, at 26.

[19] In re Aegean Marine Petroleum Network Inc., 599 B.R. 717, 726 (S.D.N.Y. 2019).

[20] In re Boys Scouts of America and Delaware BSA, LLC, 642 B.R. 504 (Bankr. D. Del. 2022).

[21] In re Purdue Pharma, L.P., 635 B.R. 26 (S.D.N.Y. 2021).

[22] Coco, supra note 4, at 265.

Photo by Ekaterina Bolovtsova via Pexels

Free Person Holding a Gavel Stock Photo

By Allison Lizotte

In the early hours of the morning on January 1st, 2017, a gunman opened fire in a nightclub in Istanbul, Turkey.[1]  The attack, for which ISIS claimed responsibility, killed 39 people and left nearly 70 others injured.[2]  Six years later, a lawsuit related to the massacre has made its way before the United States Supreme Court, threatening to hold large tech companies accountable and shake up the way they run their businesses.[3] 


Shortly after the Istanbul attack, American relatives of Nawras Alassaf, one of the 39 people killed, filed a complaint in the Northern District of California against Twitter, Google, and Facebook, alleging violations of the Anti-Terrorism Act (“ATA”)[4].  In the complaint, the Plaintiffs argued that the Internet companies played a central role in ISIS’s growth by permitting the organization to “recruit members, issue terrorist threats, spread propaganda, instill fear, and intimidate civilian populations.”[5]  The Plaintiffs claim that, despite having the ability to remove and review content posted by users, Twitter, Google, and Facebook have allowed terrorist organizations like ISIS to use their platforms for many years with “‘little or no interference.’”[6]  The issue now before the Supreme Court is whether these Internet giants may be held liable for aiding and abetting international terrorism by failing to remove pro-ISIS content from their websites.[7]


This case is one of two currently before the Supreme Court on whether Internet companies can be held accountable for inflammatory content posted by users.[8]  The second case, similar in nature to the first, is a lawsuit against Youtube brought “by the family of an American woman killed in a Paris attack by Islamist militants.”[9]  While the cases both bring claims under the ATA, the second case raises an additional and controversial scope question regarding Section 230 of the Communications Decency Act, which provides certain legal immunity to Internet companies.[10]  Should the Supreme Court rule in the favor of the Internet companies in the case related to the Istanbul attacks, it might avoid tackling the stickier issue of Section 230 required by the second case.[11]


The Communications Decency Act (“the Act”) was enacted by Congress in 1996[12], “when websites were young and perceived to be vulnerable.”[13]  Section 230 of the Act ensured that website companies “would not get bogged down in lawsuits if users posted material to which others might object, such as bad restaurant reviews or complaints about neighbours.”[14]  The relevant provision states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[15]  Rather than risk “chilling free speech,  Congress ‘made a policy choice … not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.”[16] 


In passing Section 230, Congress sought “‘to empower interactive computer service providers to self-regulate.’”[17]  However, as the Internet has evolved over the last thirty-plus years, cases like the two currently before the Supreme Court highlight the issues that come with allowing Internet companies to self-regulate.  As the current cases suggest, many of these issues arise when Internet companies take a minimalist approach to self-regulation and allow users to post controversial content with “‘little or no interference.’”[18]  Should the Supreme Court decide to restrict the scope of Section 230, tech companies could potentially be held liable for harm caused by content posted by users of their platforms, such as propaganda posted by terrorist organizations.  It is not difficult to imagine how such a restriction could result in an onslaught of litigation and cause detrimental financial burdens for these companies.


After hearing oral arguments on February 22nd and 22rd of this year, the Court remains uncertain about whether it will reach the Section 230 issue with the cases at hand.[19]  Justice Amy Coney Barrett, for example, “suggested that the [law]suit . . . lacks the kind of facts” necessary to hold the Internet companies liable under the ATA, and Justice Neil Gorsuch said he did not see how the Plaintiffs’ complaint “lines up” with the elements required under the ATA statute.[20]  If the Court dismisses the lawsuits due to these ATA-related shortcomings, it could “avoid” addressing Section 230 altogether.[21]


However, with the public becoming increasingly critical of the legal immunity afforded to large tech companies under Section 230,[22] it will be interesting to see if the Supreme Court will choose to narrow the scope of the current law.  Additionally, President Biden and former President Trump have each called for an overhaul of Section 230, suggesting that the issue before the Court will be of particular interest heading into the 2024 presidential election.[23]  Given the heightened public interest in the scope of the Act, it remains possible that the Court will confront Section 230 again in the near future, even if the Court fails to reach the issue in the current cases.


[1] Istanbul New Year Reina Nightclub Attack ‘Leaves 39 Dead’, BBC News (Jan. 1, 2017, 4:03 AM),

[2] Doreen Mccallister, ISIS Claims Responsibility in Turkish Nightclub Attack; U.S. Man Among Wounded, NPR (Jan. 2, 2017),

[3] Andrew Chung & John Kruzet, U.S. Supreme Court Raises Doubts About Suit Against Twitter Over Istanbul Massacre, Reuters, (Feb. 22, 2023, 4:51 PM).

[4] Gonzalez v. Google LLC, 2 F.4th 871, 879, 883 (9th Cir. 2021).

[5] Id. at 883.

[6] Id.

[7] Jessica Gresko & Mark Sherman, Supreme Court Seems to Favor Tech Giants in Terror Case, AP (Feb. 22, 2023),

[8] Chung & Kruzet, supra note 3.

[9] US Supreme Court Weighs Suit Against Twitter Over 2017 Istanbul Massacre, The Economic Times, (Feb. 22, 2023, 5:13 PM).

[10] Gonzalez, 2 F.4th at 882–83, 886.

[11] Adam Liptak, Supreme Court Wrestles With Suit Claiming Twitter Aided Terrorists, N.Y. Times (Feb. 22, 2023),

[12] Gonzalez, 2 F.4th at 886.

[13] What is Section 230? A Law Regulating Web Communications Comes Before the Supreme Court, The Economist (Feb. 20, 2023),

[14] Id.

[15] 47 U.S.C. § 230(c)(1)

[16] Gonzalez, 2 F.4th at 886 (quoting Carafano v., Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)).

[17] Gonzalez, 2 F.4th at 886 (quoting Force v. Facebook, Inc., 934 F.3d 53, 7879 (2d Cir. 2019)).

[18] Gonzalez, 2 F.4th at 883.

[19] See Gresko & Sherman, supra note 7.

[20] Id.

[21] Id.

[22] What is Section 230? A Law Regulating Web Communications Comes Before the Supreme Court, supra note 13.

[23] Id.

Photo by Ekaterina Bolovtsova via Pexels

Free Close-up Photo of Wooden Gavel  Stock PhotoBanks Griffin

Should corporations be held to the same standard of legal knowledge as independent creators during copyright registration?  As of now, the Supreme Court says yes.

United States copyright law is the means by which artists and creators receive property rights for their work.[1]  Accordingly, all creators should have equitable access to the copyright system. However, copyright law is complex and “often esoteric.”[2]  With this in mind, in 2008 Congress enacted a safe-harbor provision within the copyright registration statute “[t]o prevent intellectual property thieves from exploiting [mistakes in registration] . . . unless the mistake was knowingly made and the inaccuracy, if known, would have caused the Register of Copyrights to refuse the registration.”[3]  The text of the copyright registration statute states that “[a] certificate of registration satisfies the requirements of this section . . . regardless of whether the certificate contains any inaccurate information, unless the inaccurate information was included on the application with the knowledge it was inaccurate.”[4]

In Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., decided earlier this year, Unicolors sought “a single [copyright] application seeking registration for 31 separate works despite a Copyright Office regulation that provides that a single application may cover multiple works only if they were “included in the same unit of publication.””[5]  The District Court determined that Unicolors violated the regulation because they did not know of the “single unit of publication” requirement, but their registration remained valid because of the safe-harbor provision.[6]  The Ninth Circuit held that “the safe harbor excuses only good-faith mistakes of fact, not law. Unicolors had known the relevant facts, so its knowledge of the law) or lack thereof) was irrelevant.”[7]

Subsequently, The Supreme Court reversed the Ninth Circuit, holding that both mistakes of fact and mistakes of law qualify under the safe harbor provision.[8]  Unicolors effectively violated the copyright registration statute through a mistake of law.[9]  The Court found that “nearby statutory provisions help confirm that here ‘knowledge’ refers to knowledge of the law as well as the facts.”[10]  The Court reasoned that this is “especially true because applicants include novelists, poets, painters, designers, and others without legal training.  Nothing in the statutory language suggests that Congress wanted to forgive those applicants’ factual but not their (often esoteric) legal mistakes.”[11]

It is a good idea to limit barriers to entry to the copyright system for individual artist and other creators.  By not allowing mistakes of law to interfere with a creator’s copyright registration, those without legal training can navigate the copyright registration system without a lack of knowledge sabotaging their creative endeavors.  However, the Court fails to address a key issue here: corporations should be and are far more legally sophisticated than independent creators.  If one of the intentions of this legislation is to forgive those who are not legally skilled,[12] then why is the sophistication of the parties not a factor?

 Mistakes of law are not typically an excuse for noncompliance.[13]  In his dissent, Justice Thomas noted that “an actual-knowledge-of-law standard . . . is virtually unprecedented except in criminal tax enforcement.”[14]  Additionally, even in the event mistakes of law are an excuse, the sophistication of a party may be considered relevant.  For example, the 2nd Circuit held in D.C. Comics Inc. v. Mini Gift Shop that “[t]he level of sophistication of the defendant in business is an entirely proper means of determining whether or not his [copyright] infringement was innocent.”[15]

Improving access to the copyright system by forgiving the mistakes of those who do not have the legal ability to navigate is a good thing.  However, by allowing a corporation to be held to the same standard as a pro se artist or other creator, the Court’s decision potentially encourages purposefully negligent conduct by giving a license to corporations to not know the law when registering their copyrights.  Parties with means need to be held to an appropriate standard, which should include, at a minimum, knowing what the legal rules surrounding copyright registration are.  To do otherwise undermines the purpose of the safe harbor provision: reasonable diligence on behalf of those seeking registration. 

[1] See U.S. Const. art. I, § 8, cl. 8.

[2] Unicolors Inc. v. H&M Hennes & Mauritz, L. P., 142 S. Ct. 941, 947 (2022).

[3] H.R. Rep. 110-617, p. 24.

[4] 17 U.S.C. § 411(b)(1) (emphasis added).

[5] Unicolors, 142 S. Ct. at 942 (2022).

[6] Id.

[7] Id.

[8] See Id. at 945.

[9] Id. at 945-946.  

[10] Id. at 947

[11] Id.

[12] See Id.

[13] See Id. at 951-952

[14] Id.

[15] D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35-36 (2d Cir. 1990).


Image by Sora Shimazaki via Pexels

12 Wake Forest L. Rev. Online 46

Joshua S. Ha*

“The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.”[1]  That is how Chief Justice Marshall described the rule of lenity in United States v. Wiltberger.[2]  The doctrine is rooted in seventeenth-century England, where it arose to counteract the increasingly widespread imposition of the death penalty for felonies.[3]  The rule traveled to America, and today, courts typically justify the rule on three grounds: (1) fair notice to the defendant, (2) separation of powers, and (3) a presumption in favor of liberty.[4]

Today’s rule of lenity is far removed from its English origin.  Though it remains a tool of statutory construction, it is now employed “at the end of the process of construing what Congress has expressed,”[5] making it difficult to conceptualize as a principle of strict construction.  And even if its utility—as a tiebreaker reserved for instances of “grievous ambiguity”[6]—is extremely limited, it is nonetheless difficult to apply.

This Article argues that we can avoid that difficulty by excluding certain criminal statutes from the rule’s grasp altogether.  In particular, this Article claims that courts erred by applying the rule of lenity to the First Step Act—a statute governing whether already-sentenced criminals are eligible for resentencing.[7]  Part I discusses the history of the rule of lenity in England and argues that the rule strictly construed criminal statutes to frustrate—not discern—legislative intent.  Part II considers the rule of lenity as it is applied today and argues that its placement at the end of the interpretive process is incompatible with the rule as conceived in England.  Part III concludes that there are certain criminal statutes to which no rationale for the rule of lenity applies and that the rule of lenity should therefore not be used when interpreting such statutes. 

I. A History of Lenity

Courts and scholars generally accept that the rule of lenity arose as a response to the severity of English penal law—and specifically, laws carrying the death penalty.[8]  Such laws were commonplace.  Sir William Blackstone noted that it was “difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures.”[9]  Although occasionally the relative mercy of “transportation”—i.e., an arrangement by which the criminal would voluntarily leave the country[10]—might excuse a robber from execution, the death penalty remained pervasive.[11]

The rule of lenity took form against this backdrop.  It is received wisdom that the rule of lenity can be traced to legal developments surrounding the benefit of clergy.[12]  That privilege provided for the “[e]xemption of the persons of clergymen from criminal process before the secular judge” and could be claimed either at the time of arraignment or after conviction.[13]  The benefit of the clergy was once limited to those who had the “habitum et tonsuram clericalem”—that is, the “clerical habit and tonsure.”[14]  But eventually, the benefit was extended to “every one that could read,” though he be “neither initiated in holy orders, nor trimmed with the clerical tonsure.”[15]  Over time, the benefit became widespread, as “learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly.”[16]

Perhaps because it was never meant to extend so far, or perhaps as a favor to clergy dismayed at the loss of this once-exclusive privilege,[17] the benefit of clergy was gradually limited by statute.  In the late fifteenth century, a statute was enacted that permitted a layman to use the benefit only once, whereupon he would be branded.[18]  And it appears that one of the earlier instances of withdrawing the benefit of clergy from an offense altogether was in 1496, when a statute was passed providing that “if any layperson hereafter . . . murder their lord, master, or sovereign immediate, that they hereafter be not admitted to their clergy.”[19]  Instead, that person would “be put in execution as though he were no clerk.”[20]  That practice of removing the benefit of clergy from specific offenses continued, until, at the time of Blackstone, 160 felonies were statutorily exempted from the benefit of clergy.[21]  For those crimes from which the benefit of clergy was withdrawn, the death penalty was no longer easily avoidable.[22]

The classic narrative is that the rule of strictly construing penal statutes was the courts’ response to the widespread elimination of the benefit of clergy.[23]  Whatever the exact mechanics of the rule’s genesis, it was “firmly established” by the mid-seventeenth century.[24]  Thus, while the benefit of clergy itself was completely abolished in 1827,[25] the rule of lenity had already taken on a life of its own.  But while the rule of lenity, and even its impetus, may be straightforward, its exact justification remained unclear.  Was it a good-faith attempt of courts to apply the intent of the legislature, coupled with a disbelief that the legislature could truly desire its strict laws to be liberally applied?  Or was it an instance of judicial obstruction, of courts hampering—by technicality—a legislature that meant what it said?

History tends to support the latter.  The debate is nicely framed by comparing the two most-cited sources as to lenity’s origins: Sir Peter Benson Maxwell and Professor Livingston Hall.[26]  Maxwell was among the first to explicitly link the rule of lenity to the benefit of clergy, and he described the rule of lenity as one faithful to legislative intent.[27]  According to Maxwell, the rule was based on the “reasonable expectation that, when the Legislature intends so grave a matter as the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges,” it “will express [its intention] in terms reasonably plain and explicit.”[28]  Thus, in Maxwell’s view, the rule of lenity is also constrained by the legislature’s intent.  Maxwell’s lenity did not allow “the imposition of a restricted meaning on the words, for the purpose of withdrawing from the operation of the statute a case which falls both within its scope and the fair sense of its language,” because that “would be to defeat, not to promote, the object of the statute.”[29]  In short, “no construction is admissible which would sanction an evasion of an Act.”[30]

Hall thought the rule of lenity served a different purpose.  He described the rule as an offspring of a “conflict . . . between the legislature on the one hand and courts, juries, and even prosecutors on the other.”[31]  The legislature, either from “inertia” or “pressure from property owners,” pursued “a policy of deterrence through severity,” while the courts “tempered this severity with strict construction carried to its most absurd limits.”[32]  In other words, the courts were not using the rule of lenity to determine the legislature’s intent, but rather in direct opposition to whatever policy the legislature was pursuing.  Simply, it was a “veritable conspiracy for administrative nullification.”[33]

Hall’s account of the rule of lenity originating as a tool to counteract the legislature’s purpose appears to be the prevailing one.[34]  It also seems more historically grounded than Maxwell’s theory of the rule of lenity as a means of effectuating the legislature’s purpose.  To start, there is little evidence that the legislature ever intended any of its statutes to be narrowed to oblivion.  English legal reformer Samuel Romilly observed that “[t]here probably never was a law made in this country which the legislature that passed it did not intend should be strictly enforced.”[35]  For support, Romilly noted that even a strange law “which made it a capital offence for any person above the age of fourteen to be found associating for a month with persons calling themselves Egyptians” was vigilantly enforced “down to the reign of King Charles the first.”[36]  According to Romilly, who was writing in 1810, it was “only in modern times that this relaxation of the law has taken place.”[37]

The handful of vignettes from that era also seem to support that the rule of lenity produced results contrary to the legislature’s intent—and, more importantly, that courts were not concerned by that possibility.[38]  One example is the courts’ construction of a 1740 statute on cattle-stealing.[39]  That statute provided that the stealing of “sheep, or other cattle” was a “felony without benefit of clergy.”[40]  As Blackstone tells it, the courts considered the words “or other cattle” to be “much too loose to create a capital offense,” and so “the act was held to extend to nothing but mere sheep.”[41]  It is hard to find in such an interpretation an attempt to give effect to the legislature’s intent.  Perhaps—depending on what else “cattle” might have entailed back then—the phrase “other cattle” might have been narrowed by the explicit reference to “sheep.”  But to render “other cattle” surplusage runs afoul of the spirit of another rule of construction: the command to read a statute in such a way that the “whole may (if possible) stand.”[42]  And sure enough, the legislature passed a law the next year “extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.”[43]  It appears that the phrase “other cattle” was written, and meant, to be expansive.

A more ambivalent example that was closer in time to the rule of lenity’s inception is the judicial treatment of the horse-stealing felony.[44]  During the reign of Henry VIII, a 1545 statute withdrew the benefit of clergy from “the stealing of any Horse Geldinge Mare Foole or Filley.”[45]  After Edward VI succeeded to the throne, a new statute was enacted in 1547 that withdrew benefit of clergy from a long list of felonies,[46] including the “felonious stealing of horses geldings or mares.”[47]  It also purported to abrogate the 1545 statute, providing that “in all other cases of felony, other than such as be before mentioned,” all persons “shall have and enjoy the privilege and benefit of his or their clergy . . . in like manner and form as he or they might or should have done before the Reign of the said late King Henry the Eighth.”[48]  Because the 1545 statute referred to “any Horse” while the 1547 statute referred to horses in plural, Lord Matthew Hale noted that the 1547 statute “made some doubt, whether it were not intended to enlarge clergy, where only one horse was stolen.”[49]

The courts responded by interpreting the 1547 statute to permit the benefit of clergy for stealing a single horse, and the story goes that this is yet another instance of the courts thwarting the legislature’s intent.[50]  But that narrative is significantly weaker here.  For one, the courts had a textual hook in relying on the plural form of “horses,” “geldings,” and “mares.”  And unlike the interpretation of the phrase “other cattle,” here the courts did give effect to the words of the statute (indeed, every letter).[51]  Ultimately, though, it appears that the courts once again failed to effectuate the legislature’s intent.  The next year, the legislature clarified that “all and singuler p[er]son and p[er]sons felonyously takinge or stealinge any horse geldynge or mare shall not be admytted to have or enjoye the p[ri]viledge or benefyte of his or their Clergy.”[52]

Overall, then, in the absence of a systematic study, it seems that the early uses of the rule of lenity largely led to results counter to the legislature’s intent.  Thus, we may consider Maxwell’s conception of lenity as a tool for discerning the legislature’s “true” (as opposed to expressed) intent as a post hoc legitimization of the rule.  Such a lens explains why the rule of lenity has survived the abandonment of previous draconian laws and why the rule now applies to laws that do not impose capital punishment.  An actual wresting of authority from the legislature to enact criminal punishments as it sees fit can only be justified—if at all—by a penalty as drastic as death.  But once the rule was conceived as fitting within the usual judicial system, where legislatures enact and judges faithfully interpret those enactments, it could apply, as Maxwell suggested, regardless of “whether the proceeding prescribed for the enforcement of the penal law be criminal or civil.”[53]

II. Our Rule of Lenity

The rule of lenity thus originated in England.[54]  When Chief Justice Marshall described the rule in Wiltberger as being “not much less old than construction itself,”[55] he could only have been incorporating a rule older than the Republic.  Wiltberger was the first case in which the rule of lenity was explicitly applied by the United States Supreme Court.[56]  It concerned the Crimes Act of 1790.[57]  That Act provided for a crime punishable in federal court “[i]f any person or persons, shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder.”[58]  In another section, the Act provided for punishment “[i]f any seaman, or other person, shall commit manslaughter on the high seas.”[59]  Wiltberger involved manslaughter on a river.[60]

Because the manslaughter provision only referred to the “high seas,” the Court held that “the offence charged in this indictment is not cognizable in the Courts of the United States.”[61]  That holding was reached because “Congress has not . . . inserted the limitation of place inadvertently; and the distinction which the legislature has taken, must of course be respected by the Court.”[62]  Thus, while the language of the rule of lenity appears throughout the opinion, this case seems much more akin to the “horses” example than the “other cattle” one: a strange and arguably wrong conclusion, but a conclusion that at least has a textual basis.[63]  It is fitting that it is unclear how much work this most nebulous doctrine did in the Supreme Court’s first case applying it by name.

Today, our rule of lenity is oft-summarized as “the rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”[64]  And whether a statute is ambiguous is determined by using the other methods of statutory interpretation.[65]  According to the Supreme Court, “the rule applies if at the end of the process of construing what Congress has expressed, there is a grievous ambiguity or uncertainty in the statute.”[66]  It is “reserved for cases where, after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute.”[67]  The rule is not one of general strict construction of penal statutes—where “[t]he statute is clear enough,” we do not “rely on the rule of lenity” at all.[68]  The rule is, in effect, a tiebreaker.

At the same time, the rule of lenity remains a tool of statutory construction—it is just the last one applied.[69]  That is why, where a statute is given a certain meaning on account of lenity, it retains that meaning even in a noncriminal context.[70]  In Leocal v. Ashcroft,[71] the Supreme Court held in the immigration context that a DUI was not a “crime of violence” under 18 U.S.C. § 16.[72]  Under the Immigration and Naturalization Act, if a DUI were a “crime of violence,” then petitioner Josue Leocal would be deportable.[73]  In reaching its conclusion, the Court noted that “[e]ven if § 16 lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner’s favor.”[74]  Even though this case arose in the immigration context, “[b]ecause we must interpret [§ 16] consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”[75] 

That leads to an interesting conundrum where the statute is ambiguous as to a particular criminal defendant but resolving the ambiguity in the defendant’s favor may not benefit criminal defendants generally.  The rule would not fit its name if, to avoid a particular result for one criminal defendant, the rule ended up extending to impose penalties on more defendants overall.  Some courts of appeals have recognized that the rule of lenity must be applied with an eye toward defendants in general.[76]  For instance, in United States v. Olvera-Cervantes, the Ninth Circuit considered the application of U.S.S.G. § 2L1.2, which penalized illegal reentry differently if the previous deportation followed a felony conviction.[77]  The question before the court was “whether the district court should look to the maximum penalty authorized by the state statute under which the defendant was convicted or whether it should look to the maximum penalty authorized by the analogous federal statute.”[78]  The more favorable outcome to Olvera-Cervantes in particular would have been to look to the federal statute, but the court found that “the rule of lenity . . . is of little use here because we do not know whether the defendant’s interpretation of section 2L1.2 would end up benefitting defendants in general.”[79]  Indeed, it is hard to conceive how a court would be able to measure either interpretation’s benefit to defendants, given how federal and state statutes are mutable.

The most straightforward scenario, then, for applying the rule of lenity is when the criminal statute defines conduct and one of the dueling interpretations is narrower than the other.  Such a narrow interpretation, completely included within the broader one, will always be beneficial to criminal defendants overall and would not require any hypothesizing by the court.  This conception of the rule of lenity—as choosing the narrow over the broad interpretation—resembles strict construction.

But it seems well settled that the rule of lenity comes at the end of the analysis.[80]  Only at the end, if two interpretations are in “equipoise,”[81] does the court apply the rule of lenity and therefore choose the narrower construction.[82] Given how few times two interpretations will ever be in true “equipoise,” only rarely will the narrower construction be preferred over the broader one merely by reason of narrowness.  That is a sharp contrast to the rule of lenity described in the early English treatises, which treated the rule of strictly construing penal statutes as a general one.[83]  In that sense, according to our rule of lenity, penal statutes will rarely be strictly construed.

In sum, the rule of strict construction of penal statutes has survived in American law insofar as the rule of lenity embodies a built-in bias (however slight) for the narrower interpretation.  But by giving that bias effect only at the very end of the interpretive process—and only in the limited scenario of “equipoise”—our rule of lenity is significantly less applicable than the historic rule.

III.  Lenity’s Limits: A Case Study on the First Step Act

Given the foregoing, applying the rule of lenity is difficult.  As a prerequisite to even consider its use in a given case, one must first apply all other tools of statutory construction.[84]  Even then, it remains a mystery what counts as “equipoise.” It is therefore unsurprising that in United States v. Hansen,[85] then-Judge Scalia, referring to the rule of lenity, remarked, “It is, quite frankly, difficult to assess the scope of this accepted principle.”[86]  Pessimistic as it may sound, these application problems may prove to be intractable.  Concepts such as interpretive “equipoise” and narrowing constructions have little capacity to be clarified for easy application.[87]

Looking to the rationales given over time for the rule of lenity might be a decent way to boil down those concepts into something more concrete.  Below, this Article considers the three usual rationales provided for the rule of lenity.  This Article concludes that most of them are in tension with the origin of the rule and that none tells us when a statute is ambiguous enough that we must make an assumption in favor of the defendant.  That leads to the final conclusion of this Article: perhaps the rationales for the rule of lenity do not provide clear rules—but when none of the rationales are applicable, the rule of lenity itself should not apply to the criminal statute.

A. Lenity’s Rationales

Courts and commentators generally give three rationales for the rule of lenity.  The first is fair notice; as Justice Holmes observed,


[a]lthough it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.[88]  


The second is the separation of powers:  “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.”[89]  And third, “the rule of lenity serves our nation’s strong preference for liberty.”[90]

The first two rationales are inconsistent with the rule of lenity’s origins.  To start, the fair notice and separation of powers rationales seem to be post hoc rationalizations.  After all, neither logically should have been triggered by the withdrawal of the benefit of clergy.  If the scope of conduct criminalized by a seventeenth-century felony was so uncertain as to raise fair notice concerns, that uncertainty would have existed before the legislature decided to make the felony unavoidably punishable by death.  Indeed, the vagueness doctrine—another doctrine animated by fair notice—applies beyond the penal context.[91]  A similar critique applies to the separation of powers rationale.  The legislature is the only branch empowered to enact any statute, not just criminal ones, and not just criminal ones that may impose the death penalty.[92]  Furthermore, the separation of powers rationale is a particularly odd fit given that the rule of lenity originated to defeat the legislature’s intent.

The preference for liberty, on the other hand, does match the origin of the rule of lenity, at least superficially.  If the death penalty is the most severe deprivation of liberty a state can effect, it makes sense that the rule of lenity only appeared once the benefit of clergy began to be taken away.  Underlying this last rationale is a normative assumption—that the criminal penalty is a severe sanction, and that the state must therefore speak clearly if it wants to deprive a citizen of liberty.[93]  We might question whether those assumptions hold in the context of many cases where the rule of lenity is applicable; if a defendant had committed some sort of morally culpable act (even if that act is not clearly cognized by the criminal statute), a reasonable person might consider it unfair to add another thumb to the scale in the defendant’s favor.[94]  In any event, this rationale is also a relatively good fit with the practice of applying lenity.  As Maxwell described the rule in England, “[t]he degree of strictness applied to the construction of a penal statute depends in great measure on the severity of the statute.”[95]  A few states––and federal courts now and then––seem to do the same when they differentiate between felony statutes and misdemeanor statutes.[96]

But the liberty rationale too is imperfect.  If the liberty rationale is meant to require legislatures to speak clearly, why does lenity only apply when there is grievous ambiguity, as opposed to just ambiguity?[97]  More importantly, a sliding scale of lenity adds yet another variable to an already-unclear equation.  How much stricter should a felony statute be interpreted?  What about a statute that provides a ten-year maximum sentence versus a fifteen-year maximum sentence?  The liberty rationale’s capaciousness makes it a decent justification for the rule.  But it is also a poor guiding principle for the rule’s application.

One might ask, why should we care whether the rationales for the rule of lenity—all of which are widely cited[98]—are consistent with the rule’s origin?  After all, that a rule sprung up in response to a particular confluence of events does not necessarily mean that we should keep the rule bound to that scenario.  Be that as it may, Wiltberger itself described the rule of lenity as not just merely old, but “perhaps not much less old than construction itself,”[99] and courts have consistently picked up on and repeated that phrase.[100]  It would be odd to abandon any attempt to keep lenity moored to its past, considering the courts’ constant reminders of its ancient roots.

In any event, at the very least, it seems that no single rationale can claim supremacy over the other.  And even if one could, each rationale alone does not shed much light on how to apply the rule to a particular statute.  At what point is a statute ambiguous enough to raise fair notice concerns?  Our other doctrine that responds to the need for fair notice relies on such concepts as what a “person of ordinary intelligence” could “reasonably understand”[101]—hardly a hopeful ground upon which to find a clear rule.  As for the separation of powers rationale, scholars have noted that courts are accepted to have, in certain criminal matters, vast discretion.[102]  Thus, if violating the separation-of-powers principle by giving too much discretion to courts in criminal matters is merely a matter of degree, that rationale is also unlikely to lead to any clear rule.

None of this is to suggest that a lack of a clear rule means that lenity should be discarded altogether.  Law does not always give clear rules, and it might be especially odd to require clarity from a doctrine designed to enter the legal analysis in response to ambiguity.  Just because a doctrine cannot be reduced into bright-line rules does not make it invalid—far from it.  Rather, this Article concludes only that, insofar as this Article attempts to find a clear way to apply lenity in at least some cases, there probably will be none based on balancing various of the three rationales for the rule.

B. A Proposed Limit on Lenity

This Article argues that there may be some categories of penal laws to which none of the rationales of the rule of lenity apply, and that lenity should therefore be inapplicable to those statutes.  The rule of lenity has generally been described in terms referring to “penal laws,” without any suggestion that some penal laws might not be proper subjects of the rule.[103]  But considering the rule of lenity’s rationales in order to define a class of statutes to which the rule does not apply is not unheard of.  Emlin McClain, former Chief Justice of the Iowa Supreme Court, in a late-nineteenth century treatise of American criminal law, noted the view that, because the rule “was adopted at the common law in favor of life, or the liberty of the citizen,” it “has never been observed in the construction of statutes enacted for the punishment of mere misdemeanors.”[104]  For that reason, McClain described several categories of criminal law to which the rule was not applied, including “statutes for the prevention of fraud and suppression of public wrong” and “statute[s] relating to procedure.”[105]

With that in mind, one potential limit on the scope of lenity starts with the observation that every rationale for lenity is, in effect, a prohibition on what the legislature can do.  The legislature may not criminalize conduct without providing fair notice to potential defendants.[106]  The legislature may not pass such an open-ended statute that it effectively delegates lawmaking to the courts.[107]  The legislature may not infringe upon a person’s liberty without clearly stating its intent to do so.[108]  Put another way, there are limits to how a legislature may enact a statute used to the detriment of the defendant.  If those are fair characterizations of the rationales underlying the rule of lenity, then the rule should not be applied in instances of legislative grace.

One recent example of so-called legislative grace is the First Step Act of 2018.[109]  Before 2010, distributing 5 and 50 grams of crack triggered mandatory minimum sentences of five and ten years, respectively.[110]  The Fair Sentencing Act of 2010 raised those threshold amounts to 28 and 280 grams.[111]  Eight years later, the First Step Act made already-sentenced criminals potentially[112] eligible for the lower penalties of the Fair Sentencing Act, even though they had committed their crimes before the Fair Sentencing Act was passed.[113]  Eligibility for relief under the First Step Act depended on whether the criminal had committed a “covered offense.”[114]  And a “covered offense” was defined in the First Step Act as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.”[115]

Predictably, the definition of “covered offense” led to questions, often raised by criminals seeking resentencing.[116]  One of the most significant questions was whether the term referred to the actual conduct that the criminal committed or merely the statutory elements of the offense.[117]  That distinction matters for someone who distributed, say, a kilogram of crack.  If actual conduct mattered, then he would not be eligible for resentencing, because someone who sold a kilogram of crack today would be subject to the same penalties as someone who did so before 2010.  On the other hand, if only the statutory elements mattered, then the criminal would be eligible for resentencing because the penalty for selling fifty grams of crack has been modified.

From the beginning, most district courts adopted the categorical approach.[118]  For many of these courts, whether actual conduct mattered depended on what the phrase “statutory penalties for which were modified” was in reference to and what the term “violation” meant.[119]  And time and time again, those courts would invoke the rule of lenity to say that whether a covered offense was committed did not depend on the actual underlying conduct.[120]  Even district courts that reached the conclusion that eligibility for resentencing depended on actual offense conduct dismissed the use of lenity because the statute was unambiguous,[121] not for some other reason.

This Article argues that the rule of lenity should never have applied in construing eligibility under the First Step Act—even if there were a “grievous” ambiguity—because none of the rationales for the rule apply here.  To begin with, the fair notice concern is irrelevant in this context.  Whatever applicability that doctrine has in the sentencing context in general, it has no relevance when discussing a criminal statute that alters the penalties for a crime after the sentence has already been handed down.  To say that fair notice concerns are implicated here would be to say that the criminal should be given the benefit of the doubt in case he was misled by the ambiguous wording of a statute that had not yet been passed.

Neither does it make sense to apply the rule in the name of separation of powers.  In fact, that rationale would suggest that the court should resolve ambiguities against the criminal.  Sentence modifications “are not constitutionally compelled,”[122] and courts themselves “lack[] the inherent authority to modify a term of imprisonment.”[123]  If it is in Congress’s domain, then, to permit resentencing, the separation of powers principle would have courts decline—not expand—the invitation to find the ability to do so unless Congress spoke clearly.

Even the vague preference for liberty rationale is especially weak here because the legislature did speak clearly under the old sentencing regime.  As the Eighth Circuit noted in analyzing a different sentence modification statute, “[n]o new deprivation of liberty can be visited upon [a prisoner] by a proceeding that, at worst, leaves his term of imprisonment unchanged,” when “[h]is liberty is already deprived by virtue of a sentencing which gave him all the process the Constitution required.”[124]

Looking forward, the same analysis may apply—but with less weight—when the statute or rule providing a potential resentencing was in place before the criminal’s initial sentence.  For instance, in United States v. Puentes,[125] the Eleventh Circuit considered whether a district court could reduce a defendant’s obligation to pay restitution under the Mandatory Victim’s Restitution Act (“MVRA”) through Federal Rule of Criminal Procedure 35(b), which provides that “the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”[126]  The MVRA was enacted after Rule 35(b), and both were in place well before Puentes committed his crimes.[127]  Puentes argued that “[the court is] bound to apply the rule of lenity if [it] find[s] any ambiguity in the [MVRA], Rule 35(b), or the interplay between the two.”[128]  The court assumed for the sake of argument that the rule of lenity could apply to Rule 35(b) but decided that there was no grievous ambiguity that would support applying lenity there anyway.[129]

Putting aside whether lenity should apply to procedural provisions at all, it is a harder question whether lenity should apply here compared to the First Step Act example analyzed above.  Unlike a defendant under the First Step Act, Puentes in theory could have depended on the possibility of a Rule 35(b) sentence reduction at the time of his conduct.  It is true that the fair notice concern is already weak in the sentencing context and the resentencing context is even a step further removed,[130] but at least it would be temporally possible for a defendant to be misled by the wording of Rule 35(b).  It also might make some sense under the framework mentioned above that views lenity as a constraint upon Congress: if Congress wants to deny an avenue for relief available to potential criminals, it must speak clearly.  On the other hand, Rule 35(b) remains an exception to the usual inability to change an already-imposed sentence.  In recognition of that general rule, courts often refer to 18 U.S.C. § 3582(c)(2)—which authorizes sentence-modification proceedings[131]—as an “act of lenity.”[132]  If we consider Rule 35(b) itself to be a similar “act of lenity,” to apply the rule of lenity to it almost seems like double-counting.

So, it may not be as easy as saying all resentencing statutes should be excluded from the rule of lenity.  But at the very least, an approach of narrowing which criminal laws are subject to our rule would be theoretically grounded and simple to administer.  Unlike the usual approach, where courts always must consider “how much ambiguousness constitutes an ambiguity,”[133] once a particular statute is found to be outside lenity’s ambit, a court will no longer need to engage in that last step of the interpretive process at all.


The rule of lenity has largely been unmoored from its English origins.  And though it is an old doctrine that has rarely been questioned, its inconsistent application has prompted even Justice Scalia to suggest that “[i]f [the rule of lenity] is no longer the presupposition of our law, the Court should say so, and reduce the rule of lenity to an historical curiosity.”[134]  Even if a court seeking to apply the rule were to look to what rationales have been used to justify the modern American version of lenity, it would be confronted with three—all distinct, and none perfect.

It seems, then, that the easiest way to clarify the rule of lenity’s application is to start with considering its scope.  Although the rule is taken to mean that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,”[135] this Article argues that the rule’s reference to “criminal statutes” should not be taken hyperliterally.  Especially now that the term “criminal statutes” may fairly be read to mean any statute that touches upon criminal law, the rule of lenity—even in its expanded form—does not reach every such statute.  Where none of the rationales for the rule of lenity apply, that old doctrine should have no role to play in interpreting the statute, atmospheric or otherwise.

      *.   Law clerk to Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit, 2021–22, and to Judge Britt C. Grant, U.S. Court of Appeals for the Eleventh Circuit, 2020–21.  J.D., Harvard Law School, 2020; M.A., State University of New York at Stony Brook, 2016; B.S., State University of New York at Stony Brook, 2015.  Thanks to Aaron Gyde, Joshua Hoyt, Aaron Hsu, and DJ Sandoval for helpful comments and advice.  This Article represents the views of the author alone.

      [1].   18 U.S. (5 Wheat.) 76, 95 (1820).

      [2].   Id.

      [3].   David S. Romantz, Reconstructing the Rule of Lenity, 40 Cardozo L. Rev. 523, 526 (2018).

      [4].   Id. at 524–25.

      [5].   Callanan v. United States, 364 U.S. 587, 596 (1961).

      [6].   Chapman v. United States, 500 U.S. 453, 463 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)).

      [7].   First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194; see also Nathan James, Cong. Rsch. Serv., R45558, The First Step Act of 2018: An Overview (Mar. 4 ,2019).

      [8].   Romantz, supra note 3, at 526.

      [9].   4 William Blackstone, Commentaries on the Laws of England 18 (4th ed. 1770).

     [10].   Frederick Howard Wines, Punishment and Reformation: A Study of the Penitentiary System 106 (1910) (“[M]ultitudes of prisoners under sentence of death were given the alternative, of which they hastened to take advantage, of voluntarily leaving the realm, if pardoned.  Herein was the germ of English transportation.”).

     [11].   4 Blackstone, supra note 9, at 18 (“[I]n England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers.”).  In fact, this differing punishment for crimes earned commendation from Blackstone, who remarked that “[w]here men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt.”  Id.

     [12].   Romantz, supra note 3, at 526.

     [13].   4 Blackstone, supra note 9, at 358.  As a historical matter, then, the benefit of clergy was usually claimed after conviction.  As Blackstone observed, “it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also it is more advantageous to the prisoner himself, who may possibly be acquitted, and so need not the benefit of his clergy at all.”  Id. at 359–60; see also McRaney v. N. Am. Mission Bd. of S. Baptist Convention, Inc., 980 F.3d 1066, 1076 (5th Cir. 2020) (Oldham, J., dissenting from the denial of rehearing en banc).

     [14].   4 J. W. Jones, A Translation of All the Greek, Latin, Italian, and French Quotations Which Occur in Blackstone’s Commentaries on the Laws of England 245 (1823).  The clerical tonsure was a hairstyle. See 4 Blackstone, supra note 9, at 360.

     [15].   4 Blackstone, supra note 9, at 360.  It appears that this literacy test was a judicial misinterpretation of the legislature’s extension of the benefit to “secular” clerks.  See Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Tol. L. Rev. 511, 515 n.22 (2002) (“[That] statute was intended to clarify that benefit of clergy would be afforded to ‘inferior Orders’ of the clergy, as well as bishops, priests, and deacons, but . . . the intent was not to extend clergy to lay persons.” (quoting 2 Sir William Hawkins, A Treatise of the Pleas of the Crown 338 (2d ed. 1724))).  That misinterpretation was arguably deliberate.  See Romantz, supra note 3, at 526 (“As Parliament and the king continued to proliferate capital felonies in the coming centuries, the courts responded by expanding the benefit of the clergy rule to include any citizen who could read.”).

     [16].   4 Blackstone, supra note 9, at 360.

     [17].   William L. Rushton, Shakespeare: A Lawyer 16 (1858) (“[A]s many laymen as clergymen enjoyed this privilege, which excited the jealousy of the clergy, in whose favour, therefore, a further distinction was made . . . .”).

     [18].   That statute was titled “Concerning the allowance of benefit of clergy,” and it provided that “every person, not being within orders, which once hath been admitted to the benefit of his clergy, eftsoons arraigned of any such offence, be not admitted to have the benefit or privilege of his Clergy.”  4 Hen. 7 c. 13.

     [19].   12 Hen. 7 c. 7; see Spector, supra note 15, at 515–16 (“At first, benefit of clergy was stripped from murder and certain particularly nasty cases of robbery, but by the middle of the sixteenth century benefit of clergy had been withdrawn from the most trivial of felonies, including ‘stealing horses,’ pickpocketing, and ‘burning a dwelling or barn having grain therein.’” (footnotes omitted) (citing 12 Hen. 7 c. 7)).

     [20].   12 Hen. 7 c. 7.

     [21].   4 Blackstone, supra note 9, at 18 (“It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.”).  To be sure, “a large number of capital offenses on the statute book is no test for severity,” but it remains the case that “by the nineteenth century, the government had so limited the [benefit of clergy] that it had fallen into disuse.”  Newman F. Baker, Benefit of Clergy—A Legal Anomaly, 15 Ky. L.J. 85, 111 (1927).

     [22].   Spector, supra note 15, at 517.

     [23].   Romantz, supra note 3, at 527.

     [24].   Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 750 n.13 (1935) (“By the time Hale wrote (he died in 1676), the doctrine of strict construction was firmly established.”); see also 1 William Blackstone, Commentaries on the Laws of England 88 (4th ed. 1765) (“Penal statutes must be construed strictly.”); 2 Sir Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown 335 (1736) (“That where any statute . . . hath ousted clergy in any of those felonies, it is only so far ousted, and only in such cases and as to such persons, as are expressly comprised within such statutes, for in favorem vitae & privilegii clericalis such statutes are construed literally and strictly.”).

     [25].   Baker, supra note 21, at 111.

     [26].   Spector, supra note 15, at 514 n.16 (“Sir Peter Benson Maxwell and [Livingston] Hall were the first to trace the rule of lenity back to the benefit of clergy cases.  Their accounts have been accepted and recited by modern rule of lenity scholars.” (citations omitted)).

     [27].   Id.; Peter Benson Maxwell, On the Interpretation of Statutes 237 (1875).

     [28].   Maxwell, supra note 27, at 237.

     [29].   Id. at 238.

     [30].   Id.

     [31].   Hall, supra note 24, at 751.

     [32].   Id.  Perhaps this state of affairs—presumably not all too displeasing to the legislature, which could reap the benefits of passing such statutes without any of the political downsides—could eventually lead to a “sort of prescriptive validity.”  See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Rsrv. L. Rev. 581, 583 (1989).  After the charade has gone on long enough, “the legislature presumably has [it] in mind when it chooses its language.”  Id.  But that does not clarify the justification for the rule of lenity at its inception.

     [33].   Hall, supra note 24, at 751.

     [34].   See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 198 (1985) (“Faced with a vast and irrational proliferation of capital offenses, judges invented strict construction to stem the march to the gallows.”); Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 897 (2004) (“The rule of lenity has its oldest origins in the efforts of common law courts in the seventeenth and eighteenth centuries to limit the brutality of English criminal law.”); Romantz, supra note 3, at 527 n.12 (“The rule of lenity first developed in England with the decided goal of frustrating the intent of the legislature.  English courts resolved to chart a more humane path despite the legislature’s facility to enact capital crimes.”); Lawrence M. Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57, 87 (1998) (“The courts, doing what they could to frustrate the legislative will, developed the principle that penal statutes were to be construed strictly.”).  In fact, as mentioned above, the legislature’s abrogation of the benefit of clergy might have itself been a move in this tug-of-war, a response to the courts’ improper extension of the benefit to all literate citizens in the first place.  See Romantz, supra note 3, at 526–27 (“Keenly aware that the courts were frustrating its legislative prerogative to kill the nation’s criminals, Parliament responded by enacting more and more capital felonies, while excluding increasing numbers of felonies from the benefit of the clergy.”). 

     [35].   Sir Samuel Romilly, Observations on the Criminal Law of England as it Relates to Capital Punishments, and on the Mode in Which it is Administered 5 (1811).

     [36].   Id.

     [37].   Id.; see also id. at 6 (“In the long and sanguinary reign of Henry VIII, it is stated by Hollinshed that 72,000 persons died by the hands of the executioner, which is at the rate of 2,000 in every year.”).  To be sure, Romilly had an agenda of his own, as an advocate for repealing the death penalty for various crimes.  See generally Charles Noble Gregory, Sir Samuel Romilly and Criminal Law Reform, 15 Harv. L. Rev. 446 (1902) (providing an example of Romilly’s advocacy against the death penalty).

     [38].   See e.g., Sir William David Evans, A Collection of Statutes Connected with the General Administration of the Law 29­–30 (Anthony Hammond & Thomas Colpitts Granger, 3d ed. 1836).

     [39].   Id.  Among others, Blackstone and Justice Scalia have referenced the judicial treatment of this statute, the latter somewhat scornfully.  See Scalia, supra note 32, at 582 (“I doubt, for instance, that any modern court would go to the lengths described by Blackstone in its application of the rule that penal statutes are to be strictly construed.”).

     [40].                                                               Scalia, supra note 32, at 582.

     [41].   4 Blackstone, supra note 9, at 88.

     [42].   Id. at 89.

     [43].   Id. at 88.

     [44].   37 Hen. VIII c. 8.

     [45].   Id. (emphasis added).

     [46].   Other felonies from which the benefit of clergy was withdrawn was the “robbing of anny Parsone or parsons in the highe waye or nere to the highe waye,” and the “felonious taking of anny good out of anny pishe Churche or other Churche or Chapell.”  1 Edw. VI c. 12.  That the statute made the distinction between “Parson” and “parsons” might have also cast doubt on whether the term “horses” should be read to also include a single horse.

     [47].   The Statutes at Large from the First Year of King Edward the Fourth to the End of the Reign of Queen Elizabeth 448 (2d ed. 2010).  

     [48].   Id.

     [49].   Sir Matthew Hale Knt., The History of the Pleas of the Crown 365 (2003).

     [50].   See, e.g., Solan, supra note 34, at 87–88.

     [51].   Id. at 88.

     [52].   2 & 3 Edw. VI c. 33.  But even then, the legislature seemed to admit that the initial statute was unclear.  The preface to its clarifying act stated that it was made necessary because “it is and hathe been ambyguous and doubtfull . . . whether that any p[er]son being in due fourme of the lawes found gyltye . . . [of] felonyous stealinge of one horse geldynge or mare ought to be admytted to have and enjoye the priviledge and benefyte of his Clergie . . . .”  Id.

     [53].   Maxwell, supra note 27, at 238–39.

     [54].   Romantz, supra note 3, at 526.

     [55].   United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

     [56].   Note, The New Rule of Lenity, 119 Harv. L. Rev. 2420, 2422 (2006).

  1. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 357 (1994).  That statute, according to Professor Kahan, was “the very first piece of criminal legislation enacted by Congress.”  Id.

     [58].   [2 The Justices on Circuit 1790–1794] The Documentary History of the Supreme Court of the United States, 1789–1800, at 529 (Maeva Marcus et al. eds., 1988).

     [59].   Id. at 530.

     [60].   Wiltberger, 18 U.S. at 77.

     [61].   Id. at 99, 105.

     [62].   Id. at 104.

     [63].   See supra text accompanying notes 39–49.

     [64].   Yates v. United States, 574 U.S. 528, 547–48 (2015) (quoting Cleveland v. United States, 531 U.S. 12, 25 (2000)).

     [65].   See generally Valerie C. Brannon, Cong. Rsch. Serv., R45153,  Statutory Interpretation: Theories, Tools, and Trends (2018).

     [66].   Shaw v. United States, 137 S. Ct. 462, 469 (2016) (internal quotation marks and citation omitted); see also United States v. Shabani, 513 U.S. 10, 17 (1994) (“The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.”)

     [67].   Smith v. United States, 508 U.S. 223, 239 (1993) (alteration adopted) (internal quotation marks and citation omitted).

     [68].   Shaw, 137 S. Ct. at 469.

     [69].   See Reno v. Koray, 515 U.S. 50, 65 (1995) (“The rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (internal quotation marks and citation omitted)); see also Brannon, supra note 65, at 31 n.317 and accompanying text (“Consequently, most courts will not apply the substantive canons [such as the rule of lenity] unless they conclude that after consulting other interpretive tools, the statute remains ambiguous.”).

     [70].   See infra note 75 and accompanying text.

     [71].   543 U.S. 1 (2004).

     [72].   Id. at 4.

     [73].   See id.

     [74].   Id. at 11 n.8.  This discussion of the rule of lenity in Leocal is dicta.  Clark v. Martinez, 543 U.S. 371, 397 (2005) (Thomas, J., dissenting).  But from the viewpoint of the lower courts, “there is dicta and then there is dicta, and then there is Supreme Court dicta.”  Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).

     [75].   Leocal, 543 U.S. at 11 n.8; see also Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16 (2011) (“[W]e have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context.”); Martinez, 543 U.S. at 380 (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation.”).

     [76].   See, e.g., United States v. Olvera-Cervantes, 960 F.2d 101, 103 (9th Cir. 1992).

     [77].   Id. at 102.

     [78].   Id. (emphasis in original).

     [79].   Id. at 103; see also United States v. Beck, 957 F.3d 440, 450 (4th Cir. 2020) (noting that “lenity doesn’t support [Beck’s] interpretation,” because his interpretation “would generally be against defendants’ interests”).

     [80].   See Shular v. United States, 140 S. Ct. 779, 787 (2020) (Kavanaugh, J., concurring) (“[A] court may invoke the rule of lenity only after consulting traditional canons of statutory construction.” (internal quotation marks and citation omitted)); id. at 787 n.1 (listing cases).

     [81].   Johnson v. United States, 529 U.S. 694, 713 n.13 (2000).

     [82].   Id.

     [83].   See Maxwell, supra note 27, at 238 (rule of strict construction requires ensuring that no cases outside the “spirit and scope of enactment” fall within a statute).

     [84].   Barber v. Thomas, 560 U.S. 474, 488 (2010).

     [85].   772 F.2d 940 (D.C. Cir. 1985).

     [86].   Id. at 948.

     [87].   See id. (noting that “the Supreme Court’s advice that it only serves as an aid for resolving an ambiguity . . . provides little more than atmospherics, since it leaves open the crucial question—almost invariably present—of how much ambiguousness constitutes an ambiguity”).

     [88].   McBoyle v. United States, 283 U.S. 25, 27 (1931); see also id. (“To make the warning fair, so far as possible the line should be clear.”).

     [89].   United States v. Bass, 404 U.S. 336, 348 (1971); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (“The rule that penal laws are to be construed strictly . . . is founded . . . on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.”).

     [90].   United States v. Nasir, 17 F.4th 459, 473 (3d Cir. 2021) (Bibas, J., concurring).  On this point, courts repeatedly cite to Judge Henry Friendly’s observation of “our ‘instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’”  Id. (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)); see, e.g., United States v. R.L.C., 503 U.S. 291, 305 (1992) (plurality opinion); United States v. Pembrook, 609 F.3d 381, 391 (6th Cir. 2010); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006); United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir. 1993).

     [91].   Sessions v. Dimaya, 138 S. Ct. 1204, 1244 (2018) (Thomas, J., dissenting) (“[T]he vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal.”).

     [92].   See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (Marshall, C.J.) (“It is the peculiar province of the legislature to prescribe general rules for the government of society.”).

     [93].   See Marinello v. United States, 138 S. Ct. 1101, 1108 (2018) (explaining that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).

     [94].   As one commentator noted:

Two reasons can be found for the decline in importance of the lenity canon.  First, the criminal law has been used more and more, not just to condemn evil behavior, but to regulate economic activity.  Jail sentences and stigmas are less likely to attach, either by law or in practice.  In that setting, a generalized tilt toward the accused loses some of its attraction.  Second, as public concern about crime increases, the inclination to adopt an across-the-board presumption in favor of the accused weakens.

William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation 204 (1999).

     [95].   Maxwell, supra note 27, at 239.

     [96].   See, e.g., Maine v. Millett, 203 A.2d 732, 734 (Me. 1964) (quoting Maine v. Blaisdell, 105 A. 359, 360 (Me. 1919)) (noting that a statute declaring a felony “calls for a more strict construction than one which declares an act to be a misdemeanor”); Mo., K. & T. Ry. Co. v. State, 100 S.W. 766, 767 (Tex. 1907) (“It is a well-established principle of statutory construction that penal statutes must be strictly construed in determining the liability of the person upon whom the penalty is imposed, and the more severe the penalty, and the more disastrous the consequence to the person subjected to the provisions of the statute, the more rigid will be the construction of its provisions in favor of such person and against the enforcement of such law.”).  In United States v. Plaza Health Laboratories, 3 F.3d 643 (2d Cir. 1993), the Second Circuit declined to construe the Clean Water Act (“CWA”) in the same way that it did the Rivers and Harbors Act (“RHA”).  Id. at 647–48.  The court “view[ed] with skepticism the government’s contention that [it] should broadly construe the greatly magnified penal provisions of the CWA based upon RHA cases that did so in the context of strict-liability and misdemeanor penalties.”  Id. at 648.  See generally 1 Wayne R. LaFave, Substantive Criminal Law § 2.2(d) (3d ed. 2021) (footnote omitted) (citing Millett, 203 A.2d 732) (“No doubt some criminal statutes deserve a stricter construction than others.  Other things being equal, felony statutes should be construed more strictly than misdemeanor statutes; those with severe punishments more than those with lighter penalties.”).

     [97].   See, e.g., United States v. Davis, 139 S. Ct. 2319, 2352 (2019) (Kavanaugh, J., dissenting).

     [98].   See, e.g., Massachusetts v. St. Hilaire, 21 N.E.3d 968, 979 (Mass. 2015) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)); United States v. Gallaher, 624 F.3d 934, 941(9th Cir. 2010) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006) (quoting Bass, 404 U.S. at 348)).

     [99].   United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

   [100].   See, e.g., Dowling v. United States, 473 U.S. 207, 213 (1985); United States v. Boston & M. R.R., 380 U.S. 157, 160 (1965) (“A criminal statute is to be construed strictly, not loosely.  Such are the teachings of our cases from United States v. Wiltberger down to this day.” (citation omitted)); United States v. Canelas-Amador, 837 F.3d 668, 674 (6th Cir. 2016); United States v. Valle, 807 F.3d 508, 527 (2d Cir. 2015); United States v. Parker, 762 F.3d 801, 807 (8th Cir. 2014); United States v. Winchester, 916 F.2d 601, 607 (11th Cir. 1990) (“Lenity, the quality of being lenient or merciful, is an application of the common law principle that criminal statutes are to be strictly construed, a rule which ‘is perhaps not much less old than construction itself.’” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)).

   [101].   United States v. Harriss, 347 U.S. 612, 617 (1954).

   [102].   Spector, supra note 15, at 545–46.

   [103].   See, e.g., Rule of Lenity, Black’s Law Dictionary (11th ed. 2019).  But see, Popkin, supra note 94, at 204.

   [104].   1 Emlin McClain, A Treatise on the Criminal Law as Now Administered in the United States § 83 (1897).

   [105].   Id.

   [106].   Marinello v. United States, 138 S. Ct. 1101, 1106 (2018) (quoting United States v. Aguilar, 515 U.S. 593, 600 (1931)).

   [107].   See United States v. Komzinski, 487 U.S. 931, 951 (1988) (denouncing “the arbitrariness and unfairness of a legal system in which the judges would develop the standards for imposing criminal punishment on a case-by-case basis”).

   [108].   See Marinello, 138 S. Ct. at 1108 (stating that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).

   [109].   Pub. L. No. 115-391, 132 Stat. 5194.

   [110].   21 U.S.C. § 841(b) (2009) (amended 2010).

   [111].   Pub. L. No. 111-220, § 2, 124 Stat. 2372.

   [112].   Under § 404(b) of the First Step Act of 2018, whether a sentence was ultimately reduced remained within the court’s discretion.  See Pub. L. No. 115-391, 132 Stat. 5194, 5222.

   [113].   Id.

   [114].   First Step Act § 404(b).

   [115].   Id. § 404(a).

   [116].   See United States v. Davis, 961 F.3d 181, 183 (2d Cir. 2020).

   [117].   See id.

   [118].   See United States v. King, 423 F. Supp. 3d. 481, 484 (M.D. Tenn. 2019) (“To date, it does not appear that any Court of Appeals has weighed in on the issue, but the vast majority of district court[s] to have addressed the matter have concluded that the count of the conviction controls . . . .”).

   [119].   See, e.g., United States v. Henderson, 399 F. Supp. 3d 648, 653–54 (W.D. La. 2019).  The Supreme Court has since clarified that the phrase “statutory penalties” refers to “a violation of a Federal criminal statute.”  Terry v. United States, 141 S. Ct. 1858, 1862 (2021).

   [120].   See Henderson, 399 F. Supp. 3d at 654; see also King, 423 F. Supp. 3d at 484–85; United States v. Hardnett, 417 F. Supp. 3d 725, 737 (E.D. Va. 2019); United States v. Willis, 417 F. Supp. 3d 569, 575 (E.D. Pa. 2019); United States v. Williams, 402 F. Supp. 3d 442, 448 (N.D. Ill. 2019); United States v. Askins, No. CR-02-00645-001, 2019 WL 3800227, at *3 (D. Ariz. Aug. 6, 2019); United States v. White, No. 99-CR-628-04, 2019 WL 3228335, at *4 (S.D. Tex. July 17, 2019); United States v. Martin, No. 03-CR-795, 2019 WL 2571148, at *2 (E.D.N.Y. June 20, 2019); United States v. Rose, 379 F. Supp. 3d 223, 229 (S.D.N.Y. 2019); United States v. Allen, 384 F. Supp. 3d 238, 242 (D. Conn. 2019); United States v. Pierre, 372 F. Supp. 3d 17, 22 (D.R.I. 2019).

   [121].   See, e.g., United States v. Jackson, No. 03-0642, 2019 U.S. Dist. LEXIS 109993, at *7–8 n.3 (E.D. Pa. June 26, 2019) (“To the extent the Government suggests that the meaning of ‘violation’ in § 404(a) is ambiguous, the Court disagrees.  As a result, the Court’s interpretation of ‘violation’ in the First Step Act is not subject to the rule of lenity, which requires courts to construe ambiguities in criminal statutes in favor of defendants.” (citation omitted)).

   [122].   Dillon v. United States, 560 U.S. 817, 841 (2010).

   [123].   United States v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020); see also United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir. 2015) (“The law is clear that the district court has no inherent authority to modify a sentence; it may do so only when authorized by a statute or rule.”).

   [124].   United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013).

   [125].   803 F.3d 597 (11th Cir. 2015).

   [126].   See id. at 598; Fed. R. Crim. P. 35(b).

   [127].   Pub. L. 104–132, §§ 201–11, 110 Stat. 1214, 1227–41 (1996).

   [128].   Puentes, 803 F.3d at 609.

   [129].   Id. at 610.

   [130].   Johnson v. United States, 576 U.S. 591, 630 (2015) (Alito, J., dissenting) (noting that fair notice concerns “have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question”).

   [131].   See 18 U.S.C. § 3582(c)(2).

   [132].   Dillon v. United States, 560 U.S. 817, 828 (2010); see also United States v. Padilla-Diaz, 862 F.3d 856, 861 (9th Cir. 2017) (“As acts of lenity, such sentence reductions are not constrained by the general policies underlying initial sentencing or even plenary resentencing proceedings.”); United States v. Maiello, 805 F.3d 992, 1000 (11th Cir. 2015); United States v. Johnson, 703 F.3d 464, 469 (8th Cir. 2013).

   [133].   United States v. Hansen, 772 F.2d 940, 948 (D.C. Cir. 1985).

   [134].   Holloway v. United States, 526 U.S. 1, 21 (1999) (Scalia, J., dissenting).  This statement is especially striking from Justice Scalia, who along with Bryan Garner has been credited with maintaining the rule of lenity’s significance in our law.  See Intisar A. Rabb, Response, The Appellate Rule of Lenity, 131 Harv. L. Rev. F. 179, 180 (2018) (“Justice Scalia and Professor Bryan Garner have helped elevate the rule of lenity by including it in a set of fifty-seven recommended canons of construction in their widely read treatise on interpretation.”).

   [135].   Yates v. United States, 574 U.S. 528, 547–48 (2015) (internal quotation marks omitted).

By Tanner Henson

Before diving into the legal challenges that surrounded North Carolina’s 2022 congressional redistricting, it is important to understand the recent history of redistricting in the state.  In 2010, a wave election year for North Carolina Republicans, the GOP stunned those who follow state politics by securing majorities in both houses of the General Assembly for the first time since 1898.[1]  Underscoring the enormity of this shift, the State Senate flipped from a Democratic majority of 30–20 to a Republican majority of 31–19, while the State House of Representatives flipped from a Democratic majority of 68–52 to a Republican majority of 68–52.[2]

Having endured severe Democratic gerrymanders at the congressional level,[3] following their wins in 2010, legislative Republicans redrew congressional maps to generate a 10–3 Republican advantage.[4]  Under the North Carolina Constitution, congressional districts are drawn by the General Assembly and are not subject to the governor’s veto.[5]  Partially because of this structure, the Democratic aligned National Redistricting Action Fund, which is closely associated with former Attorney General Eric Holder, has frequently brought suit to enjoin maps favoring the GOP.[6]  Under North Carolina statutes, when a congressional map is challenged in state court, a three-judge panel, composed of Wake County’s senior superior court judge and two additional superior court judges appointed by the chief justice of the North Carolina Supreme Court, have exclusive jurisdiction.[7]  Appeals from this panel go directly to the state supreme court.[8]

In 2018, North Carolina Republicans saw their congressional advantage eroded from 10–3 to 8–5, following a federal court ruling that Republican state legislators “had violated the First amendment and the equal-protection clause of the Fourteenth Amendment when they drew congressional lines that favored their party.”[9]  Given these losses, legislative Republicans went into 2022 looking to regain the lost seats.[10]  Following the 2020 Census, buoyed by North Carolina’s increasing population, which resulted in the state gaining a fourteenth congressional seat,[11] legislative Republicans again drew congressional maps that would have generated a 10–4 majority, even in bad political climates for the GOP.[12]  Likely due to an ideological shift in the North Carolina Supreme Court, which now has a 4–3 Democratic majority,[13] this year, Democratic–backed groups sued the General Assembly in state court, seeking to have the maps enjoined, according to the process outlined above.[14]

In a 260-page order, a three-judge panel upheld the map, ruling that “[a]t no point has restriction of redistricting for partisan advantage ever been made part of any North Carolina Constitution.”[15]  The panel viewed the constraints on redistricting enumerated in the North Carolina Constitution­—that members of Congress should represent nearly equal numbers of constituents, that districts should be contiguous, that maps should split as few counties as feasible, etc.—as exhaustive.[16]  The panel was unwilling to infer that the equal protection and free speech clauses of the state constitution somehow limited the legislature’s redistricting power; rather, the court wrote that “[i]f the framers did intend to limit the partisan advantage that could be obtained through redistricting, ‘it is reasonable to presume it would have been declared in direct terms and not be left as a matter of inference.’”[17]  The panel stressed that the judiciary should not involve itself in such a purely political question, writing, “[w]ere we as a Court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government.  Once we embark on that slippery slope, there would be no corner of legislative or executive power that we could not reach.”[18]

However, in an order dated February 14, the North Carolina Supreme Court reversed the lower court, writing that the congressional map was “unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.”[19]  The court reasoned that to comply with the constraints in the North Carolina Constitution, “the General Assembly must not diminish or dilute any individual’s vote on the basis of partisan affiliation.”[20]  The court further explained that when the legislature enacts a map that makes it more difficult for an individual to join with likeminded voters to elect a governing majority, “the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote.”[21]

Following its order, the court allowed the General Assembly a second opportunity to draw less partisan maps and suspended candidate filing during that period.[22]  However, the legislature enacted another congressional map that would have likely resulted in a 10–4 Republican advantage.[23]  On February 23, the reviewing three-judge panel rejected the second map drawn by the legislature and adopted a map drawn by four non-partisan special masters, which will likely result in either an 8–6 Republican advantage, or an evenly divided delegation.[24] The state supreme court subsequently approved of this map and reopened candidate filing.[25]

On February 25, the Speaker of the North Carolina House of Representatives, Tim Moore, filed an emergency appeal in the United States Supreme Court seeking to overturn the court-enacted congressional map,[26] arguing that the court-imposed map “usurped the legislature’s power to regulate congressional elections under the U.S. Constitution.”[27]  The appeal—Moore v. Harper—was placed on the Court’s shadow docket.[28]

Moore asked the Court to expand its prohibition against judicial interference with redistricting to cover state courts.[29]  The theory underlying the Speaker’s appeal is known as the independent state legislature doctrine.[30]  The theory is grounded in Article I, Section 4 of the United States Constitution, which gives state legislatures the authority to determine the time, place, and manner of congressional elections.[31]  While this grant of authority has been viewed as giving legislative leaders the authority to set the ground rules for elections, it has not previously prevented state court process.[32]  However, Speaker Moore and legislative Republicans argued that the legislature’s power under the Constitution is supreme, thereby preventing state court interference, even in instances where a map might violate the state constitution.[33]  Particularly, Moore argued that the state supreme court interfered with legislative authority to regulate the manner of elections when it enacted a map drawn by its own special masters.[34]

For over one-hundred years, the Supreme Court has rejected this expansive view of the powers granted to state legislatures.[35]  In accord with this precedent, the Court rejected Moore’s appeal.[36]  However, fissures are starting to appear in what had seemed to be a settled area of law.  First, at least four of the Court’s current justices signaled some willingness to examine the independent state legislature doctrine during former President Trump’s challenges to the 2020 election.[37]  Second, while the Court’s decision in Moore left in place the court-imposed maps, it did so over a pointed dissent penned by Justice Alito, who was joined by Justices Thomas and Gorsuch.[38]  The dissenters noted that the “case present[ed] an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”[39]  Justice Alito stressed the importance of answering this question, before lamenting that the Court had missed another opportunity to do so.[40]

Justice Kavanaugh wrote separately, concurring in the denial of Moore’s application for a stay.[41]  While Kavanaugh ultimately voted with the majority, he did so only because he felt that it was “too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections[.]”[42]  Kavanaugh largely agreed with Justice Alito that Moore had “advanced serious arguments on the merits” and posed a question that will “keep arising until the Court definitively resolves it.”[43]

This is likely not the end of the road for the independent state legislature doctrine.  We now know at least four justices are willing to entertain the doctrine, enough to grant certiorari. Some “Court watchers” are predicting that the fate of the theory rests on the vote of Justice Amy Coney Barrett, the only justice who has been, as of yet, completely silent on the merits of the doctrine.[44] Time will tell.

[1] Tracy W. Kimbrell & R. Bruce Thompson II, 2010 North Carolina Election Analysis, Parker Poe (Nov. 3, 2010),

[2] Id.

[3] See Noah Tom Bullock, North Carolina’s Congressional Primaries Are a Mess Because of These Maps, NPR (Mar. 10, 2016, 5:00 AM),  One district, the twelfth, looked reminiscent of a snake, running along I-95 for approximately 80 miles.  The district spanned from Charlotte to Winston-Salem, and at times was no wider than the interstate it tracked. 

[4] Scott Bland, Court Throws Out N.C. Congressional Map Before Election, Politico (Aug. 27, 2018, 7:54 PM),

[5] N.C. Const. art. II, § 22(5).

[6] Patrick Rodenbush, Eric Holder and Marc Elias Discuss NRAF Redistricting Lawsuits, Nat’l Redistricting Action Fund (Apr. 27, 2021),  

[7] Doug Spencer, All About Redistricting North Carolina, Loyola L. Sch., (last visited Mar. 23, 2022).  

[8] Id.

[9] Bland, supra note 4.

[10] See Michael Wines, North Carolina Court Says G.O.P. Political Maps Violate State Constitution, N.Y. Times (Feb. 4, 2022),

[11] Bill O’Neil, North Carolina Gains Seat in Congress After Census Results Released, WXII12 (Apr. 26, 2021, 8:43 PM),  

[12] Wines, supra note 10.

[13] Id.

[14] See supra notes 7–8 and accompanying text.

[15] Unanimous Three-Judge Panel Upholds N.C. Election Maps, Appeal Likely, Carolina Journal (Jan. 11, 2022, 5:43 PM),  

[16] Id.

[17] Id.

[18] Id.

[19] Ethan Cohen, North Carolina Supreme Court Strikes Down Redistricting Maps, CNN Politics (Feb. 4, 2022, 7:59 PM),  

[20] Harper v. Hall, 868 S.E.2d 499, 546 (N.C. 2022).

[21] Id. at 544.

[22] Id. at 559.

[23] Michael Wines, North Carolina Court Imposes New District Map, Eliminating G.O.P Edge, N.Y. Times (Feb. 23, 2022),  

[24] Id.

[25] Id.

[26] What Redistricting Looks Like in Every State, FiveThirtyEight (Mar. 22, 2022, 4:50 PM),  

[27] Id.

[28] Moore v. Harper, SCOTUSblog, (last visited Mar. 7, 2022).

[29] Adam Liptak, Supreme Court Allows Court-Imposed Voting Maps in North Carolina and Pennsylvania, N.Y. Times (Mar. 7, 2022), (arguing “that the state legislature has sole responsibility for drawing congressional districts and that state courts have no role to play”).

[30] Richard L. Hasan, North Carolina Republicans Ask SCOTUS to Decimate Voting Rights in Every State, Slate (Feb. 25, 2022, 7:32 PM),  

[31] U.S. Const. art. I, § 4.

[32] Hasan, supra note 30.

[33] Id.

[34] Rusty Jacobs, Supreme Court Filing in NC Redistricting Matter Poses Thorny Questions for Conservatives, WFAE 90.7 (Feb. 28, 2022, 5:03 PM),  

[35] Hasan, supra note 30.

[36] Liptak, supra note 29.

[37] Id.

[38] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Alito, J., dissenting),

[39] Id. s

[40] Id.

[41] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Kavanaugh, J., concurring),

[42] Id. at 2.

[43] Id. at 1.

[44] Ian Millhiser, The Fate of American Elections Is in Amy Coney Barrett’s Hands, Vox (Mar. 4, 2022, 8:00 AM),  

By: Mathias A. Young

In 2020, the Supreme Court declared that a large part of Oklahoma was still Indian country[1] because Congress had never formally disestablished a reservation. While the McGirt v. Oklahoma[2] decision certainly had a large impact on the state of Oklahoma and was celebrated as a recognition of Native American treaty rights, its impact was felt less outside of the state. However, the Supreme Court left a question unanswered in McGirt that could fundamentally change the way that states prosecute crimes in Indian country.

Under the federal Major Crimes Act,[3] any American Indian[4] who commits certain offenses is subject to the exclusive jurisdiction of the United States.[5] As Justice Gorsuch put it, “[s]tate courts generally have no jurisdiction to try [American] Indians for conduct committed in ‘Indian country.’”[6] A neighboring statutory provision extends this rule more broadly, stating that “[e]xcept as otherwise expressly provided by law, the general laws of the United States . . . in any place within the . . . exclusive jurisdiction of the United States . . . shall extend to the Indian country.”[7]

Therefore, in addition to re-recognizing the Muscogee Creek Nation’s reservation, McGirt essentially removed between ten and fifteen percent of Oklahoma’s population from state criminal jurisdiction when they committed crimes in Indian country. While the Muscogee Creek reservation only covers approximately ten percent of Oklahoma, subsequent state court cases have extended McGirt to re-recognize the Cherokee, Choctaw, Chickasaw, and Seminole reservations, which together cover almost all of eastern Oklahoma.[8] As a result of these decisions, nearly half of Oklahoma’s four million residents now reside in Indian country.[9]

The McGirt decision only touched on whether states have jurisdiction under the Major Crimes Act to prosecute American Indians who commit crimes in Indian country.[10] In response to losing jurisdiction, Oklahoma petitioned the Supreme Court for review of the McGirt decision and the question of whether states have authority to prosecute non-American Indians in Indian country when the victims are American Indian.[11] Although the Supreme Court withheld certiorari on Oklahoma’s first question, it is taking up the second.[12]

Oklahoma argues that previous decisions from the Oklahoma Court of Criminal Appeals overstepped the bounds of both the Major Crimes Act, 18 U.S.C. § 1153, and the General Crimes Act, 18 U.S.C. § 1152.[13] In so doing, it relies on a mix of textual interpretation of the statutes and analysis of nineteenth century precedent. Oklahoma’s textual analysis begins with a study of the text of the General Crimes Act.

Oklahoma takes issue with the Court of Criminal Appeals’ interpretation of two phrases in the General Crimes Act. The state first argues that the phrase “sole and exclusive jurisdiction” as used in the statute describes which laws extend to Indian country, and not what governments have prosecutorial authority over those laws.[14] Next, Oklahoma disagrees with the Court of Criminal Appeals as to the meaning of the phrase “except as otherwise expressly provided by law.”[15] Instead of exempting Indian country from state criminal law without an act of Congress, Oklahoma argues that the phrase refers to federal laws that do not reach Indian country without congressional approval.[16] This distinction, the state argues, allows Oklahoma to exercise concurrent jurisdiction over non-American Indians who commit crimes against American Indians in Indian country.

In addition to the textual argument, Oklahoma also points to a pair of decisions allowing states to exercise prosecutorial authority in Indian country. One, New York ex rel. Cutler v. Dibble,[17] allowed New York to enforce trespass laws against non-American Indians who attempted to settle in Indian country.[18] However, Dibble did not interpret either the Major or General Crimes Act, instead analyzing whether the New York law violated the Commerce Clause or a treaty.[19] Oklahoma also relies on United States v. McBratney,[20] a case interpreting the predecessor to the General Crimes Act that held that Colorado had jurisdiction over a murder committed by a non-American Indian in Indian country.[21] However, McBratney involved a murder where both the defendant and the victim were not American Indians, a situation that the Court affirmed was still within the jurisdiction of the states in McGirt.[22]

In response, Castro-Huerta argues that precedent stands on his side and that the statutory interpretation undertaken by the Court of Criminal Appeals was correct. In analyzing precedent, Castro-Huerta first points to Williams v. United States,[23] where the Supreme Court held that:

“[w]hile the . . .  courts of the State . . . may have jurisdiction over [criminal] offenses committed on this reservation between persons who are not [American] Indians, the . . . courts of the United States . . . have jurisdiction over offenses committed there . . . by one who is not an [American] Indian against one who is.”[24]

Next, Castro-Huerta argues that Williams v. Lee,[25] a civil case involving non-American Indians suing American Indians for a dispute that happened in Indian country, bolsters his case.[26] There, the Supreme Court held that state courts did not have jurisdiction because allowing it would “infringe on the right of the [American] Indians to govern themselves.”[27]

In analyzing the decision of the Court of Criminal Appeals, Castro-Huerta essentially takes the opposite position of Oklahoma. In ascertaining the meaning of “sole and exclusive jurisdiction,” Castro-Huerta argues that the phrase is meant to parallel federal enclaves, where state law is inapplicable.[28] Additionally, Castro-Huerta notes that if Oklahoma’s statutory interpretation is correct, Congress would have had no need to specifically give certain states criminal jurisdiction over crimes involving American Indians on reservations.[29] Castro-Huerta’s argument is, in essence, that if state jurisdiction already extended to crimes involving American Indians in Indian country, Congress would not have assumed the opposite.

If the Supreme Court decides that states have concurrent jurisdiction in criminal cases where the defendant is not ana American Indian but the victim is, the implications will be felt much farther than the bounds of the Sooner State. Although many of the largest reservations, such as the Navajo Nation which encompasses parts of Arizona, New Mexico, and Utah, lie in the western part of the United States, reservations can be found in half of the states.[30] In addition to greatly reducing the judicial autonomy afforded to the Five Tribes of Oklahoma after McGirt and its subsequent state court cases, a decision in favor of Oklahoma in Castro-Huerta could fundamentally reorder the way that state criminal law is applied in Indian country across the United States.

[1] “Indian country” is a legal term of art used to refer to lands under the control of federally recognized tribes. For the sake of accuracy, it is used in this article with the same meaning as the Major Crimes Act, the General Crimes Act, and the caselaw interpreting those statutes.

[2] 140 S.Ct. 2452 (2020).

[3] 18 U.S.C. § 1153(a).

[4] The term “American Indian” was chosen for use by the author throughout this blog. Where an alternative term is used, the different term was the result of a quote or another source.

[5] Id.

[6] McGirt v. Oklahoma, 140 S.Ct. 2452, 2459 (2020).

[7] 18 U.S.C. § 1152.

[8] See generally Grayson v. State, 485 P.3d 250 (Okla. Crim. App. 2021) (Seminole); Spears v. State, 485 P.3d 873 (Okla. Crim. App. 2021) (Cherokee); Sizemore v. State, 485 P.3d 867 (Okla. Crim. App. 2021) (Choctaw); Bosse v. State, 499 P.3d 771 (Okla. Crim. App. 2021) (Chickasaw).

[9] Mitchell Jagodinski, Fallout from McGirt and Testimony About Future Crimes, SCOTUSblog (Aug. 20, 2021, 8:48 PM),

[10] McGirt, 140 S.Ct. at 2479.

[11] Petition for a Writ of Certiorari at i, Oklahoma v. Castro-Huerta, No. 21-429 (Sept. 21, 2021).

[12] Oklahoma v. Castro-Huerta, 142 S.Ct. 877 (2022) (mem.).

[13] Petition for a Writ of Certiorari at 11–12, Oklahoma v. Castro-Huerta, No. 21-429 (Sept. 21, 2021).

[14] Id. at 12.

[15] Id.

[16] Id.

[17] 62 U.S. 366 (1858).

[18] Id. at 371.

[19] Id. at 370.

[20] 104 U.S. 621 (1882).

[21] Id. at 624.

[22] McGirt v. Oklahoma, 140 S.Ct. 2452, 2479 (citing McBratney, 104 U.S. at 624).

[23] 327 U.S. 711 (1946).

[24] Id. at 714.

[25] 358 U.S. 217 (1959).

[26] Id. at 218.

[27] Id. at 223.

[28] Brief in Opposition at 13, Oklahoma v. Castro-Huerta, No. 21-429 (2021).

[29] Id. at 11–12.

[30] Frequently Asked Questions, Bureau of Indian Affs., (last visited Feb. 21, 2022); Eric Johnston, Which States Have Indian Reservations & How Many?, Synonym (Sept. 29, 2017)

By Daniel Cundiff

College athletics has undergone a seismic shift.  For decades, athletes participating in Division I college athletics were unable to receive compensation for the use of their name, image, and likeness (“NIL”), and they risked becoming ineligible to participate in their sport for doing so.[1]  Today, National Collegiate Athletic Association (“NCAA”) guidelines allow student athletes to profit off of their NIL,[2] over half of states have enacted some form of NIL legislation,[3] and progress is being made toward federal NIL legislation.[4]

In National Collegiate Athletic Association v. Alston,[5] the United States Supreme Court provided a push for the NCAA to change course with respect to NIL rules.[6]  While the majority of the Court avoided the question of NIL on review,[7] Justice Kavanaugh’s concurrence squarely attacked the issue.[8]  Justice Kavanaugh expressed doubt that the portion of the NCAA’s compensation rules that were unaddressed by the majority (including NIL) were legally valid, stating that “[t]he NCAA’s business model would be flatly illegal in almost any other industry in America.”[9]  Finally, seeing potential difficulties in changing NCAA compensation rules through litigation, Justice Kavanaugh proposed that the issue could be resolved through either legislation or collective bargaining by the student athletes themselves.[10]  In any event, the writing was on the wall for the NCAA, which decided to take action.

Just nine days after the Alston opinion, on June 30, 2021, the NCAA announced a change to its compensation rules that allowed student athletes to profit from their NIL beginning the next day.[11]  Now, student athletes in states that have passed NIL legislation “can engage in NIL activities that are consistent with the law of the state where the school is located.”[12]  Further, student athletes in states without NIL legislation “can engage in this type of activity without violating NCAA rules related to name, image and likeness.”[13]  So long as it is consistent with applicable law, student athletes can also engage a professional service provider for NIL activities.[14]  At least for the time being,[15] gone are the days of students being forced to choose between NCAA eligibility and compensation for their NIL.[16]

Today, twenty-eight states have passed NIL legislation with varying nuances and restrictions.[17]  Common restrictions include prohibiting contracts from extending beyond the time an athlete participates in sports at a particular institution,[18] directly tying compensation to participation,[19] otherwise known as “pay-for-play,”[20] and allowing institutions to restrict athletes’ use of team logos for personal NIL activity.[21]  Moreover, some states prohibit specific industries from contracting with student athletes.[22]  Prohibited industries include adult entertainment, alcohol, tobacco, and firearms.[23]  Other states, favoring a more ambiguous approach, prohibit all industries that “negatively impact[] the reputation or the moral or ethical standards” of the institution.[24]

North Carolina is poised to be a key player in NIL based on its position in college sports.  Home to Duke University and the University of North Carolina at Chapel Hill, each with multiple NCAA basketball championships,[25] and the current top two football teams in the Atlantic Coast Conference (“ACC”)—Wake Forest University and North Carolina State University[26]—the State has the potential to attract top-flight high school talent to its institutions.  Roy Cooper, the Governor of North Carolina, signed an Executive Order regarding NIL on July 2, 2021, providing guidance on the future of NIL in the state.[27]  Student athletes in North Carolina can now “earn compensation, and obtain related representation, for the use of their name, image, and likeness while enrolled at the institution, and such compensation and representation . . . shall not affect a student-athlete’s scholarship eligibility.”[28]  Restrictions include prohibitions against the use of NIL contracts “as a direct inducement to enroll . . . at a particular institution.”[29]  Further, the institutions themselves may not compensate student-athletes for use of their NIL.[30]  Similar to Mississippi,[31] institutions in North Carolina “may impose reasonable limitations or exclusions on the categories of products and brands that a student-athlete may receive compensation for endorsing” when the institution “reasonably determines that a product or brand is antithetical to the values of the institution or that association with the product or brand may negatively impact the image of the institution.”[32]  Moreover, as is the case in Illinois,[33] an institution in North Carolina “may limit a student-athlete’s compensation for their name, image, and likeness as it pertains to use of the institution’s intellectual property,” and the Executive Order does not give “any student-athlete the right to use the name, trademarks, service marks, symbols, logos or any other intellectual property that belong to an institution, athletic conference, or athletic association.”[34]  Finally, in anticipation of an influx of NIL compensation for student-athletes, “[p]ostsecondary educational institutions are encouraged to provide financial literacy and life-skill programs to their student-athletes.”[35]  Therefore, Governor Cooper’s Executive Order provides the framework for NIL dealings in North Carolina, though this is unlikely to be the end of the issue.

Beyond state legislation, Senator Roger Wicker of Mississippi declared that there is “broad consensus” that the federal government should pass NIL legislation, which would unify the various restrictions of states under one common federal standard.[36]  Even the President of the NCAA, Mark Emmert, called on Congress for a “federal framework.”[37]  Emmert and others claim that the current “patchwork” of state NIL legislation leads to confusion and an uneven playing field in college athletics.[38]  Therefore, while the current landscape of NIL in college athletics remains a variety of state laws and, in states without NIL legislation, NCAA rules, preempting federal legislation is likely to pass and reshape college athletics once again.

[1] See Matthew N. Korenoski, O’Bannon v. NCAA: An Antitrust Assault on the NCAA’s Dying Amateurism Principle, 54 Duq. L. Rev. 493, 497–98 (2016).

[2] Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image and Likeness Policy, NCAA (June 30, 2021),

[3] See NIL Legislation Tracker, Saul Ewing Arnstein & Lehr LLP, (last visited Oct. 20, 2021) (“To date, the 28 states listed below have passed NIL laws.”).

[4] See id. (“[T]he most recent NIL bill . . . suggests that there is continued interest in getting a federal law on the books.”).

[5] 141 S. Ct. 2141 (2021).

[6] See id. at 2167 (Kavanaugh, J., concurring).

[7] See id. at 2141–66.

[8] See id. at 2166.

[9] Id. at 2167.

[10] Id. at 2168.

[11] Hosick, supra note 2.

[12] Id.

[13] Id.

[14] See id.

[15] See Gregory A. Morino, The NCAA Declares Independence from NIL Restrictions, Foley & Lardner LLP (Aug. 20, 2021),

[16] See Barret Sallee, UCF Kicker Ruled Ineligible after Refusing to Agree to Terms over YouTube Channel, CBS Sports (July 31, 2017, 5:05 PM), (Donald De La Haye, a former Division 1 NCAA football player, chose to quit football after the NCAA determined that De La Haye could not earn income from his NIL on athletics-based YouTube videos.).  

[17] Saul Ewing Arnstein & Lehr, supra note 3.

[18] See, e.g., Fla. Stat. Ann. § 1006.74(2)(j) (2021) (“The duration of a contract for representation of an intercollegiate athlete or compensation for the use of an intercollegiate athlete’s name, image, or likeness may not extend beyond her or his participation in an athletic program at a postsecondary educational institution.”).

[19] See, e.g., Exec. Order No. 2021-418 (Ky. 2021).

[20] See, e.g., Katlyn Andrews, Navigating the NCAA’s Interim NIL Policy and State Regulations, Baker Tilly (Aug. 18, 2021), (“Subject to state law, the NCAA’s interim policy prohibits compensation . . . [f]or athletic participation or achievement (i.e., pay for play) . . . .”).

[21] See, e.g., Student-Athlete Endorsement Rights Act, 110 Ill. Comp. Stat. Ann. 190/1-99 (LEXIS through P.A. 102-450 of the 2021 Session of the 102nd Legislature).

[22] See, e.g., Ark. Code Ann. § 4-75-1307(b) (Westlaw through the 2021 Regular and First Extraordinary Session of the 93rd General Assembly) (effective Jan. 1, 2022).

[23] Id. at § 4-75-1307(b)(1)–(9).

[24] See, e.g., Mississippi Intercollegiate Athletics Compensation Rights Act, Miss. Code Ann. § 37-97-107(14) (Westlaw through the 2021 Regular Session).

[25] See Championship History, NCAA, (last visited Oct. 20, 2021).

[26] See 2021 Football Standings, ACC, (last visited Oct. 20, 2021).

[27] Exec. Order No. 223 (N.C. 2021).

[28] Id.

[29] Id.

[30] Id.

[31] See Mississippi Intercollegiate Athletics Compensation Rights Act, Miss. Code Ann. § 37-97-107(14) (Westlaw through the 2021 Regular Session).

[32] Exec. Order No. 223 (N.C. 2021).

[33] See Student-Athlete Endorsement Rights Act, 110 Ill. Comp. Stat. Ann. 190/1-99 (LEXIS through P.A. 102-450 of the 2021 Session of the 102nd Legislature).

[34] Exec. Order No. 223 (N.C. 2021).

[35] Id.

[36] Ralph D. Russo, Lawmakers Agree NCAA Needs NIL Help, but How Much and When?, Associated Press (June 9, 2021),  

[37] Maria Carrasco, Congress Weighs In on College Athletes Leveraging Their Brand, Inside Higher Ed (Oct. 1, 2021),

[38] Id.

Post image by Ghana Decides on Flickr

By Grace Koppenheffer

When systems work as expected, people generally are content to let such systems work in the background—the shadows—without needing to know the details. When those same systems start producing different and unexpected results, however, people want to shine a light into the shadows to understand, diagnose, and if needed, fix the system.

The concept of the shadow docket has been around since the Supreme Court’s inception,[1] but the term itself was first coined in 2015 by William Baude to refer to the Court’s “range of orders and summary decisions that defy its normal procedural regularity.”[2] Unlike the more well-known process of the “merits docket,” where the Court writes an opinion after multiple rounds of briefing and oral arguments, rulings from the shadow docket almost always come as orders from either a single Justice or the Court.[3] These orders usually come after only one round, or less, of briefing, do not contain a majority opinion nor reasoning, and most of the time provide no record of voting.[4] Because these orders can be handed down at any time—even in the middle of the night—and lack transparency, “these rulings come both literally and figuratively in the shadows.”[5]

Although the Court issues thousands of orders via the shadow docket each year, until recently, many did not pay much attention to the shadow docket because it was meant to resolve “unremarkable scenarios.”[6] For example, the Court has utilized the shadow docket to issue uncontentious decisions such as denying uncontroversial petitions for certiorari, denying petitions that clearly did not meet the criteria for emergency relief, granting additional time for parties to file briefs, and other procedures related to the Court.[7] Recently, however, the shadow docket has faced increased scrutiny focusing on a relatively small subset of cases that employ the shadow docket to seek emergency relief.

Although the Supreme Court has the power to grant emergency relief through issuing injunctions, and issuing and lifting stays,[8] the Court recognizes that these are “drastic and extraordinary remedies,”[9] which should be granted only when “adequate relief cannot be obtained in any other form or from any other court.”[10] In order to circumvent the typical appeals process and petition the Court for emergency relief, petitioners must show that “irreparable harm [will] result from the denial of a stay.”[11]

Congress has begun investigating the Court’s emergency relief orders because of the increased number and variety of cases for such relief.[12] Between 2001 and 2017, the Department of Justice only filed eight applications for emergency relief.[13] During the four years of the Trump administration, however, the Department of Justice filed forty-one such petitions, twenty-four of which were granted in full, and four in part.[14]

Additionally, the types of cases on which the Court has rendered decisions through the shadow docket has not only broadened, but also has become more divisive.[15] Although there were some controversial rulings via the shadow docket in the past, most of these decisions concerned elections and the death penalty.[16] In the last few years, shadow docket decisions have expanded to include cases regarding the border wall,[17] gathering restrictions due to COVID-19,[18] federal executions,[19] abortion bans,[20] eviction moratoriums,[21] and immigration policy regarding asylum seekers.[22] The Justices, like the public, have also been divided on these controversial issues. Of the eight emergency relief applications filed by the Justice Department between 2001 and 2017, only one had a dissent.[23] Conversely, in twenty-seven of the thirty-six[24] orders regarding the emergency relief applications filed during the Trump administration, at least one Justice publicly dissented.[25] Moreover, during the October 2019 Term, the number of 5-4 decisions from the shadow docket was almost equal to the number of 5-4 decisions on the merits docket.[26]

A major criticism of the recent orders the Court has issued via the shadow docket is that they are inconsistent with one another and with past precedent, leading some to view the decisions as advancing policy rather than the law.[27] In some cases, the Court has changed substantive law through emergency relief orders, articulating new constitutional rules to support such relief.[28] For example, in Tandon v. Newsom,[29] the Court issued an emergency injunction against a California law that prohibited in-home gatherings, including Bible studies and prayer meetings.[30] In its order, the Court adopted an expansive view of the First Amendment’s Free Exercise Clause which “no prior majority opinion had ever adopted. . . .”[31]

Conversely, in other cases, the Court has refused to grant emergency relief for constitutional rights. For instance, in Whole Woman’s Health v. Jackson,[32] the Court denied injunctive relief regarding a Texas law banning abortions after a heartbeat is detected, which is usually around six weeks.[33] Although the Court explicitly stated the “order [was] not based on any conclusion about the constitutionality of Texas’s law,”[34] such a denial of injunction for “an obviously unconstitutional abortion regulation,”[35] defies precedent in such situations and led some to conclude that “the [C]ourt is advancing a partisan political agenda and not a legal one.”[36] When the Court uses the shadow docket to create a new interpretation of the First Amendment in one case but then refuses to utilize it to extend protection to an existing fundamental right in another, critics worry that such inconsistencies undermine the legitimacy of the Court.[37]

There are myriad problems with the recent shadow docket emergency relief cases. For one, the timing of these decisions, which can be handed down late at night,[38] and the usual absence of knowing which way Justices voted create opacity in the system.[39] Moreover, shadow docket orders often do not provide any reasoning for the decisions they hand down, making “it impossible to scrutinize the merits of the Court’s action in far too many of these cases.”[40] Due to this lack of reasoning, it is challenging for lower courts to know how to apply these decisions in subsequent cases, even though such orders are now meant to be treated as precedent.[41] Additionally, other interested parties do not provide input and the Court does not have the benefit of hearing oral arguments.[42] All of these issues ultimately culminate in reducing the Court’s legitimacy.[43]

In her dissent in Whole Woman’s Health, Justice Kagan denounced the majority’s decision stating, “[it] is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”[44] The Court’s new approach to emergency relief petitions via the shadow docket has garnered greater scrutiny of this system, shining a light into the shadowy process. Whether this new light allows the shadow docket decision making to continue, or whether Congress or the Court itself will attempt to recalibrate the system, remains to be seen.

[1] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Int. of the H. Comm. on the Judiciary, 117th Cong. 1 (2021) (statement of Stephen I. Vladeck, Charles Alan Wright Chair Fed. Cts., U. Tex. Sch. L.),

[2] William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).

[3] The Supreme Court’s Shadow Docket, supra note 1, at 1–2.

[4] Id. at 2.

[5] Id.

[6] Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, Am. Bar Ass’n: Project Blog (Apr. 14, 2021),

[7] The Supreme Court’s Shadow Docket, supra note 1, at 2.

[8] See 28 U.S.C. § 1651; 28 U.S.C. § 2101(f).

[9] Ex parte Fahey, 332 U.S. 258, 259 (1947).

[10] Sup. Ct. R. 20(1) (2019).

[11] Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (quoting Rostker v. Goldberg, 448 U.S. 1306, 1308 (Brennan, J., in chambers)).

[12] Mark Joseph Stern, Congress Finally Scrutinizes One of SCOTUS’s Most Disturbing Practices, Slate (Feb. 18, 2021, 6:53 PM),

[13] The Supreme Court’s Shadow Docket, supra note 1, at 4.

[14] Id. at 4–5.

[15] Id. at 5–6.

[16] Id. at 2–3.

[17] Trump v. Sierra Club, 140 S. Ct. 2620, 2620 (2020) (mem.).

[18] South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021) (mem.).

[19] Montgomery v. Rosen, 141 S. Ct. 1144, 1144 (2021) (mem.).

[20] Whole Woman’s Health v. Jackson, No. 21A24, slip op. at 1 (2021) (mem).

[21] Ala. Ass’n Realtors v. Dep’t Health & Hum. Servs., No. 21A23, slip op. at 1 (2021) (per curiam) (mem.).

[22] Biden v. Texas, No. 21A21, slip op. at 1 (2021) (mem.).

[23] The Supreme Court’s Shadow Docket, supra note 1, at 5.

[24] Four of the total forty-one applications were withdrawn and one was held in abeyance. Id., at 4–5.

[25] Id. at 5.

[26] Id.

[27] Steve Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently., Wash. Post (Sept. 23, 2021, 10:43 AM),

[28] Stephen I. Vladeck, Opinion, The Supreme Court Is Making New Law in the Shadows, N.Y. Times (Apr. 15, 2021),

[29] 141 S. Ct. 1294 (2021) (per curiam) (mem.).

[30] Stephen I. Vladeck, The Supreme Court Is Making New Law in the Shadows, supra note 28.

[31] Id.

[32] No. 21A24 (S. Ct. Sept. 1, 2021) (mem.).

[33] Id. at 1–2.

[34] Id. at 2.

[35] Id. at 1 (Kagan, J., dissenting).

[36] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[37] Id.

[38] In 2020, two orders allowing the first federal executions in seventeen years were handed down at 2:10 am EST and 2:46 am EST. Another shadow docket was been handed down at 11:56 pm the night before Thanksgiving.  The Supreme Court’s Shadow Docket, supra note 1, at 13–14.

[39] Id. at 13.

[40] Id.

[41] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[42] The Supreme Court’s Shadow Docket, supra note 1, at 14.

[43] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[44] Whole Woman’s Health, No. 21A24, slip op. at 1–2 (Kagan, J., dissenting).

11 Wake Forest L. Rev. Online 93 (2021)


In 2018, 128 people died every day from an opioid overdose, twenty-five percent of patients misused opioids prescribed for chronic pain, and approximately 1.7 million people developed a substance use disorder directly from prescription opioid use.[1]  The effects were so devastating that the opioid epidemic was declared a national emergency.[2]  In response, government officials and courts sought criminal and civil retribution to hold pharmaceutical executives responsible for their roles in the epidemic, most recently with the Racketeer Influenced and Corrupt Organizations Act (“RICO”).[3]  When applied in the civil context, however, courts disagree on whether a fraudulent misrepresentation can satisfy the proximate cause requirements under RICO.[4]  This Comment seeks to identify whether a misrepresentation of the addictive qualities of opioids would be a sufficient showing of proximate cause for a civil RICO claim to succeed and argues that such misrepresentations would be sufficient.

This Comment proceeds in five parts.  Part I explains the progression of the opioid epidemic, pharmaceutical companies’ fraudulent misrepresentations, and the recovery options available to combat the epidemic—particularly RICO.  Part II discusses RICO’s role in addressing fraudulent misrepresentations in the pharmaceutical industry.  Part III describes the circuit split regarding fraudulent misrepresentations in civil RICO causation.  Part IV analyzes the fraudulent misrepresentations that led to the opioid epidemic and argues that those misrepresentations are sufficient to establish proximate cause in a civil RICO claim.  Part V recommends that the Supreme Court should grant certiorari on this issue and hold that misrepresentations of a drug’s harmful side effects are sufficient to show proximate cause in civil RICO cases.

I. Background

A. The United States Opioid Epidemic

The United States opioid epidemic is a major public health issue that has devastated the country’s social and economic welfare.[5]  The epidemic began in the late 1990s when pharmaceutical companies began encouraging the medical community to prescribe prescription opioids to their patients.[6]  During this time, pharmaceutical companies paid physicians to host informational seminars on drugs for their peers.[7]  While hosting these events can be a positive source of information in the medical community, the speakers of these programs often received kickbacks to prescribe the drugs they were promoting.[8]  The more prescriptions the physicians wrote, the more kickbacks they received.[9]  By 2015, nearly fifty percent of physicians received kickbacks for prescribing pharmaceutical drugs.[10]

Often, physicians knew little about the drugs they were prescribing.[11] Pharmaceutical companies assured physicians of opioid safety, guaranteeing that patients would not become addicted.[12]  As a result, physicians prescribed the drugs at high rates and quantities, leading to widespread addiction.[13]  Newly addicted and reliant, patients soon turned to more potent drugs—like cocaine and heroin—culminating in the opioid epidemic now overtaking the United States.[14]

B. The History of Fraudulent Misrepresentations in the Pharmaceutical Industry

The pharmaceutical industry has a long history of systemic fraud related to the “testing, marketing, and distribution of dangerous pharmaceutical drugs.”[15]  Throughout this history, pharmaceutical representatives have routinely concealed harmful side effects from physicians to convince them to prescribe dangerous drugs using “lies, bribes, and kickbacks.”[16]  In fact, in the pharmaceutical industry, it is so common for physicians to be deceived about dangerous products “that it’s often dismissed as the equivalent of driving slightly over the speed limit.”[17]

Drug representatives are also targeted as these individuals are often offered large bonuses for selling harmful drugs.[18]  For example, to increase sales of OxyContin, Purdue Pharma developed a “bonus system [that] encouraged sales representatives”[19] to use “any means necessary” to increase sales rates, even if it meant downplaying OxyContin’s addictive tendencies.[20]  In this way, pharmaceutical manufacturers frequently engage in a “coordinated conspiracy to deceive the American public and the medical profession about the efficacy and safety of opioids.”[21]


In 2017, the federal government and state governments began to pursue criminal and civil retribution against pharmaceutical companies for their role in the opioid epidemic.[22]  These entities often sought to recover for the economic harm they incurred due to increased rates of addiction in their communities.[23]  While civil lawsuits were routinely unsuccessful early on, settlements have begun to increase in recent years, indicating their growing success.[24]  For example, in 2007, Purdue Pharma settled in a civil suit with twenty-six states for $19.5 million.[25]  In 2016, Cardinal Health and AmerisourceBergen, distributors of prescription opioids, did the same, settling with the State of West Virginia for $34 million.[26]

Generally, individual plaintiffs seeking damages for personalized injuries have also sought to recover via direct-injury lawsuits.[27]  In the pharmaceutical context, direct-injury lawsuits “generally target opioid manufacturers for alleged misrepresentations during advertisement or opioid distributors for an alleged failure to monitor illicit distribution.”[28]  When asserting direct-injury claims, plaintiffs generally rely on tort-based theories, one of which is RICO.[29] 

RICO makes it “unlawful for any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such [an] enterprise’s affairs through a pattern of racketeering activity” that affects interstate commerce.[30]  To assert a RICO violation, a claimant must establish an “association-in-fact” enterprise, defined as a “group of persons associated together for a common purpose.”[31]  To be a part of such an enterprise, a defendant must have either made decisions or intentionally performed acts that furthered the enterprise’s common purpose.[32]  The enterprise’s common purpose must be “separate from the pattern of racketeering activity” that the enterprise is engaging in; otherwise, it will not amount to a RICO violation, only a general conspiracy to commit a crime.[33] 

To establish a pattern of racketeering activity, there must be two or more acts that are “‘chargeable’ . . . under a host of state and federal laws,”[34] as well as interrelated, continuous, and occurring within a ten-year period.[35]  Otherwise, the acts will be deemed “isolated” and will fail to constitute a pattern.[36]  Furthermore, either the enterprise itself or the predicate acts of the enterprise must have a de minimis impact on interstate commerce.[37]  This is generally a low threshold, as courts routinely find that most, if not all, economic behavior impacts interstate commerce.[38]  Thus, to prosecute a defendant under RICO, a plaintiff must show that (i) a defendant performed two or more acts, (ii) those activities together formed a pattern of racketeering activity, (iii) the defendant benefitted from or participated in an enterprise, and (iv) the activities of that enterprise affected interstate commerce.[39] 

II. RICO and the Pharmaceutical Industry

In the pharmaceutical context, defendants participate in a RICO enterprise when they give or follow a directive to engage in fraud or when they exert influence or control in a scheme to fraudulently profit from the sale of prescription drugs.[40]  Thus, a RICO enterprise is formed when pharmaceutical companies conspire to misrepresent the efficacy and risks of opioids and opioid addiction.[41] While pharmaceutical executives are typically the easiest to implicate in such an enterprise, any person engaged in “false claims, kickback schemes, and acts of clinical and publication bias” are potential defendants for inclusion.[42]

A. Proving Causation in Civil RICO Claims

Standing to bring a civil RICO claim is stated under 18 U.S.C. § 1964(c).[43]  Under the statute, a plaintiff has standing for a civil RICO claim when their injury (i) is to their business or property, and (ii) was caused “by reason of” the RICO violation.[44]  The Supreme Court’s interpretation of “by reason of” requires the plaintiff to prove both proximate and but-for causation.[45]  But-for causation asks whether the plaintiff’s injury would have occurred but for the defendant’s conduct.[46]  Proximate causation serves to prevent liability when the link between the defendant’s conduct and the plaintiff’s injury has been severed.[47]  Thus, proximate causation requires a plaintiff to show some sort of direct relationship between the defendant’s actions and the plaintiff’s injury.[48]

Holmes v. Securities Investor Protection Corp.[49] sets out three principles to guide the causation analysis[50]

First, the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors.  Second, . . . recognizing claims of the indirectly injured would force courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries.  And, finally, the need to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct, since directly injured victims can generally be counted on to vindicate the law as private attorneys general . . . .[51]

The first Holmes principle asserts that an injured party must be readily identifiable with readily apparent damages.[52]  Damages are considered to be readily apparent when the action that caused the plaintiff’s injury has already occurred, because this negates the need for factual speculation.[53]  The second principle requires damages to be awarded to the plaintiffs without fear that multiple parties will receive overlapping damages.[54]  To conform with this principle, a court can award damages when only one party is seeking recovery for their payments towards a drug or when each individual plaintiff seeks only to recover for the damages they individually paid for a prescription drug.[55]  Finally, the third principle requires that those most directly injured are bringing the suit; thus, the parties bringing the suit must be those best suited to do so.[56]

Since Holmes, however, the Supreme Court has eased the proximate cause standard for plaintiffs bringing RICO claims on mail and wire fraud.[57]  In Bridge v. Phoenix Bond & Indemnity Co.,[58] the Court held that a plaintiff asserting a RICO claim on mail or wire fraud does not need to show that they relied on the defendant’s alleged misrepresentations to establish proximate cause.[59]  As such, the plaintiff may recover whether or not they are the direct recipient of the false statements made.[60]  But because a plaintiff must establish both but-for and proximate causation, they often still must show that someone relied on the defendant’s misrepresentation.[61]

B. Criminal RICO Application

In 2019, a Massachusetts court found John Kapoor (“Kapoor”), former executive of pharmaceutical company Insys, guilty of conducting a national scheme to pay physicians to prescribe a highly potent and addictive fentanyl-spray.[62]  In Kapoor’s case, United States v. Michael Babich,[63] the Insys executives knowingly instructed physicians to prescribe the fentanyl-spray at six times the FDA-approved limit to guarantee patient reliance.[64]  To ensure compliance, the executives held speaker programs disguised as “educational lunches and dinners,” which they used to pay bribes and kickbacks to high-prescribing physicians.[65]  The Insys executives also targeted third-party payors (“TPPs”) using fake call centers to trick insurance companies into covering the spray at higher rates than they otherwise would have if they had known of the spray’s addictive tendencies.[66] 

Kapoor and six other Insys executives were found guilty of racketeering, wire fraud, and mail fraud conspiracy, marking the “first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids.”[67]  As such, this case serves as the beginning of a new era in civil litigation to hold executives responsible for their role in the opioid epidemic.[68]

III.  Conflicting Interpretations of Misrepresentations Under RICO

Several federal circuit courts have addressed the question of whether, in the civil context, fraudulent misrepresentation can satisfy the direct-injury requirements necessary to establish proximate cause under RICO.[69]  The First, Third, and recently the Ninth Circuit have held that fraudulent misrepresentations can satisfy the direct-injury requirement, while the Second and Seventh Circuit have held that they cannot.[70]  To date, the Supreme Court has not granted certiorari to resolve this issue.[71]

A. Fraudulent Misrepresentation as a Sufficient Assertion of Proximate Cause

  1. Ninth Circuit

In Painters & Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals,[72] the Ninth Circuit reviewed whether patients and TPPs can sufficiently meet the proximate cause requirements in a civil RICO claim when a pharmaceutical manufacturer fraudulently misrepresents a drug’s allegedly known safety risks.[73]  There the defendants allegedly knew of and concealed that Actos, a drug prescribed to regulate blood sugar for Type II diabetics, increased a patient’s risk of developing bladder cancer.[74]  The plaintiffs alleged that they would never have paid for or taken the drug if they had known of the risk of bladder cancer.[75]

The court concluded that the plaintiffs were the direct victims of the defendants’ alleged misrepresentations and therefore that the defendants’ fraudulent misrepresentations were directly related to the plaintiff’s harm.[76]  Thus, the Ninth Circuit held that both patients and TPPs who paid for Actos could successfully meet the proximate cause requirements.[77]  In so holding, the Ninth Circuit noted that because physicians commonly prescribe prescription drugs—like Actos—it is foreseeable that physicians would prescribe such a drug and therefore “play a causative role” in the defendant’s fraudulent scheme.[78]  Accordingly, physician actions do not sever proximate cause.[79]

The Painters decision marked an express change of opinion for the Ninth Circuit.[80]  Ten years prior, in 2009, the Ninth Circuit conversely found that misrepresentation claims could not successfully assert proximate cause in civil RICO claims.[81]  Now, with the Ninth Circuit basing its decision on policy implications and societal interest, Painters introduces new considerations on the issue that cannot be ignored.[82] 

  1. First Circuit

In In re Neurontin,[83] the First Circuit considered whether the Kaiser Foundation (“Kaiser”) could recover for an alleged injury arising from Pfizer’s alleged fraudulent marketing of Neurontin for off-label uses.[84]  Kaiser argued that Pfizer’s campaign explicitly targeted TPPs to influence formulary and prescribing decisions and encouraged physicians to serve on speaker’s bureaus and sponsor informational sessions to promote Pfizer drugs, while disguising bribe and kickback payments.[85]  Through expert witness testimony, the court found that three out of ten Neurontin prescriptions made for such off-label uses would not have been written but for Pfizer’s fraudulent marketing scheme.[86]  As such, the court held that Kaiser was a primary, intended, and direct victim that successfully met the proximate cause requirements under RICO.[87] 

  1. Third Circuit

In In re Avandia,[88] GlaxoSmithKline (“GSK”) marketed Avandia as a safer and more effective alternative to existing medications currently available for Type II diabetes treatment.[89]  As a result, TPPs added Avandia to their formularies and covered Avandia prescriptions at preferred rates.[90]  Soon after, however, risks arose regarding heart-related side effects, which GSK actively denied and countered despite knowledge to the contrary.[91] 

The Third Circuit held that the presence of intermediaries did not sever proximate cause because the TPPs’ injury was a foreseeable result of GSK’s scheme.[92]  Since TPPs covered the costs of Avandia directly because of GSK’s misrepresentations of Avandia’s risks, the TPPs were held to be intended and direct victims.[93]  Thus, the court concluded that reliance on GSK’s misrepresentations was sufficient to allege proximate cause.[94]

B. Fraudulent Misrepresentation as an Insufficient Assertion of Proximate Cause

In a Seventh Circuit case, Sidney Hillman Health Center of Rochester v. Abbott Labs.,[95] Abbott Labs allegedly solicited physicians to prescribe Depakote, a drug approved to treat seizures and migraines, for off-label uses.[96]  There the Seventh Circuit reasoned that because it would be too difficult to calculate the plaintiff’s damages due to unknown factors—some patients likely benefitted from taking Depakote for an off-label use, and some physicians would undoubtedly have prescribed Depakote for off-label uses regardless of solicitation—misrepresentations made to physicians fail the first Holmes factor and do not constitute a direct injury.[97]  As such, the Seventh Circuit held that such misrepresentations cannot meet the proximate cause requirements of civil RICO claims.[98]  Similarly, in UFCW Local 1776 v. Eli Lilly & Co.,[99] the Second Circuit concluded that a physicians’ reliance on misrepresentations is not a but-for cause of a drug’s higher price because physicians do not consider a drug’s price when they order prescriptions.[100]  Thus, the Second Circuit held that fraudulent misrepresentations do not sufficiently establish proximate cause for a civil RICO claim.[101]

IV. Analysis

Painters, In re Avandia, and In re Neurontin discuss the issue of recovery for TPPs (and patients as well in the case of Painters) when dealing with fraudulent misrepresentations of a prescription drug’s harmful side effects.[102]  These cases more closely align with the issues arising out of the opioid epidemic—as seen in Michael Babich—where pharmaceutical manufacturers and their executives fraudulently misrepresented the addictive qualities of opioids, in the form of a fentanyl-spray, resulting in economic injury to both patients and TPPs.[103]

A. The Opioid Epidemic Compared to Other Civil Applications

Like the pharmaceutical manufacturers in In re Avandia who falsely promoted Avandia as safe for use, the Insys executives in Michael Babich misrepresented the risks of the addictive qualities of their fentanyl-spray to ensure its coverage and use.[104]  In In re Avandia, the pharmaceutical manufacturer knew of Avandia’s increased cardiac complications; in Michael Babich, the pharmaceutical manufacturer knew their fentanyl-spray risked addiction and misuse.[105]  Like the pharmaceutical manufacturer in In re Avandia who promoted Avandia knowing its cardiac risks, the pharmaceutical executives in Painters also actively misled physicians, consumers, and TPPs to prescribe and use Actos despite knowing its risk for bladder cancer.[106]  Thus, in all three cases, pharmaceutical manufacturers formulated schemes to misrepresent the harmful side effects of their touted drugs to increase prescription rates at the expense of patients and TPPs.

Michael Babich also mimicked these cases’ use of speakers’ bureaus and physician targeting.  Both Michael Babich and In re Neurontin used speaker programs to target physicians with high prescription numbers and pay bribes and kickbacks to these physicians in exchange for increased prescription orders and dosages.[107]  Furthermore, like Pfizer’s marketing scheme in In re Neurontin that actively targeted TPPs to add drugs to their formularies and influence prescribing decisions, Insys’ marketing scheme in Michael Babich targeted TPPs through the use of a fake call center that was used to guarantee insurance coverage of their fentanyl-spray.[108]  In both cases, the use of these schemes directly targeted TPPs, causing them to prescribe more opioids than they otherwise would have prescribed.[109]  In these ways, the facts of Michael Babich reflect those of Painters, In re Avandia, and In re Neurontin.

Thus, as the fraudulent misrepresentations presented in the aforementioned cases all constituted a direct injury,[110] it is likely that a civil RICO claim based on the fraudulent misrepresentations of the opioid epidemic would be successful.  Therefore, opioid epidemic plaintiffs should bring civil—as well as criminal—suits when seeking retribution for their injuries caused by pharmaceutical companies’ fraudulent misrepresentations of the addictive qualities of opioids.

B. Analyzing the Proximate Cause Requirements of Civil RICO Claims

  1. How Opioid Epidemic Plaintiffs Can Meet the Damages Attributable Requirement

In situations where plaintiffs can allege damages due to the failure to warn of a drug’s harmful side effects, damages are not based on factual speculation and are thus readily apparent.[111]  In these situations, plaintiffs bring suit because they incurred an injury from taking a drug.  To have such an injury, a plaintiff must have already taken the drug, meaning that their injury has already occurred and cannot be based on factual speculation.  In the context of the opioid epidemic, a plaintiff brings suit asserting injury for the harm incurred from taking a drug with addictive characteristics.  Because the factual scenario seen in the opioid epidemic falls squarely into this context, a plaintiff’s damages will be readily apparent and meet the damages attributable requirement.

Damages in these cases will also be readily determinable.[112]  When a plaintiff’s injury is based on a fraudulent misrepresentation of a drug’s harmful side effects, the amount of damages attributable would amount to the difference between the cost of the injurious drug and the cost of a cheaper, alternative drug.[113]  Thus, in the context of the opioid epidemic, the damages alleged would amount to the cost between what a patient, or TPPs, would have paid for an alternative drug and what they paid for the harmful drug prescribed.  Because this amount is easily determinable, patients and TPPs would likely meet this requirement in any civil litigation arising from the opioid epidemic.

  1. How Opioid Epidemic Plaintiffs Can Avoid Duplicative Recovery

In opioid epidemic cases, multiple parties, including patients and TPPs, will likely look to recover damages.  In these cases, each individual plaintiff will be limited in what they can recover while still conforming with the second Holmes principle.[114]  To ensure that there is no duplicative recovery, and thus no violation of the second principle, each plaintiff will only be able to recover damages for what they individually paid for a prescription drug.[115]  Because both TPPs and patients will have incurred economic injury in a civil litigation suit, such a limitation is the only way to ensure compliance with the second Holmes principle and sufficiently assert proximate cause.[116] 

  1. How Opioid Epidemic Plaintiffs Can Meet the Direct-Injury Requirement

In civil opioid epidemic litigation, patients are directly injured parties because they incur financial and personal injury when they suffer harmful effects from using dangerous drugs.[117]  Patients suffer financial injury in paying out-of-pocket for expensive, harmful drugs that often lead to complications and further health problems, including addiction and drug misuse.  TPPs are directly injured parties that incur financial loss when they are targeted to add drugs to their formularies at preferred rates.[118]  For the preceding reasons, TPPs and patients are the most directly injured parties of pharmaceutical companies’ fraudulent schemes to market and promote harmful drugs; thus, they are the best suited plaintiffs to bring suits against pharmaceutical companies.  As such, both patients and TPPs would meet this third and final requirement in any future civil litigation related to the opioid epidemic.

C. Policy Considerations

Policy considerations further drive the argument in favor of allowing pharmaceutical companies’ fraudulent misrepresentations to sufficiently constitute proximate cause for patients and TPPs in civil RICO claims.  For one, if courts hold that the causal chain is too attenuated to constitute proximate cause for TPPs and patients—like the Second and Seventh Circuits do—the implications would effectively allow pharmaceutical companies to avoid liability for their fraudulent marketing schemes.[119]  In this way, pharmaceutical companies would be shielded from liability and permitted to hide behind the physicians who prescribed their drugs.[120]

For example, in the context of the opioid epidemic, such a holding would allow pharmaceutical companies to go unpunished for encouraging physicians to prescribe opioids at dangerous doses and rates.  While arguably physicians should still be held liable for their own roles in the opioid epidemic, by not extending this same liability to pharmaceutical companies there would be no deterrence to stop pharmaceutical companies from engaging in these fraudulent schemes too.  As such, pharmaceutical companies are likely to continue utilizing these harmful and fraudulent methods and will undoubtedly continue to use physicians as a proxy for engaging in such methods in the future if such actions are not met with liability.

Fraudulent misrepresentations should also be held to constitute proximate cause in civil RICO claims to allow plaintiffs to recover for their injuries.  Patients and TPPs routinely incur economic injury in paying for expensive drugs.[121]  Patients often incur additional financial harm when forced to sustain their habits.[122]  For example, following the onset of addiction, patients must often pay to continue to use prescription opioids, or when prescription opioids are unavailable, they must pay for other drugs, such as heroin and cocaine.[123]  When the financial harm stems from the patients’ continued use of prescription opioids, TPPs are also financially affected.[124]  Since addiction to these drugs results in the need for continued use, permitting such recovery would allow patients and TPPs to obtain some compensation for the harms wrongfully inflicted upon them.[125]  Therefore, pharmaceutical companies should not be allowed to cause such extreme harm and avoid responsibility,[126] especially when the societal harm caused by these misrepresentations far outweighs the corporate gains.  Thus, for society to fully recover, adequate recovery must be allowed.

Ensuring liability would also allow trust to be restored in the medical system. Patients need to feel comfortable seeking care from their physicians.  For this to occur, patients and other medical consumers must maintain a certain level of trust in the field of science and medicine.  Patients need to feel that their physicians are prescribing them medications for their own betterment, not for the personal gain or profit of the prescribing physician.  Thus, if pharmaceutical schemes, aimed to profit to the detriment of patients and TPPs, are ensured to be met with litigation, then pharmaceutical companies’ wrongful conduct will be deterred while increasing societal trust in the medical system.

Pharmaceutical executives must be held accountable before progress can be efficiently made.  Allowing plaintiffs to satisfy the requirements of proximate cause in civil RICO claims will allow the largest societal benefit.  Therefore, this position should be upheld in future civil litigation surrounding the opioid epidemic.

V. Recommendation

While pharmaceutical companies misrepresenting drugs to consumers and insurers to increase profits is certainly not a new occurrence, the opioid epidemic has arguably been the most widespread incidence of such an event.  Because the opioid epidemic can affect anyone and everyone, the opioid epidemic is arguably one of the most transcendent public health issues that the United States has ever encountered.  For this reason, the Supreme Court should grant certiorari on the issue of whether a fraudulent misrepresentation can constitute proximate cause in a civil RICO claim, especially regarding recovery for cases dealing with the opioid epidemic and the addictive tendencies of opioids.

The Supreme Court should grant certiorari on this issue because it is crucial for a uniform approach to be created and adhered to in the United States.  If the Supreme Court denies certiorari and allows this issue to remain with the various circuits, then pharmaceutical companies could continue to avoid liability.  Without a uniform approach, pharmaceutical companies can continue to bypass responsibility, establishing their companies in circuits that do not regard fraudulent misrepresentations as a sufficient means of causation in civil RICO claims.  Thus, by failing to grant certiorari on this issue, the Supreme Court would be allowing pharmaceutical companies, and their executives, to avoid prosecution for their wrongful acts by allowing them the opportunity to reside in circuits with favorable precedent.  Since the opioid epidemic affects every state on a national level, this sort of piecemeal approach across the circuits is not a suitable option; instead, the only way to truly curb these immense harms is with a uniform, national standard guaranteed to be consistently applied.

Should the Supreme Court grant certiorari to hear this issue of fraudulent misrepresentation as sufficient for proximate cause, the Court should follow the approach taken by the First, Third, and Ninth Circuits.  Victims of the opioid epidemic have suffered.  Not only have patients suffered physical injury, dealing with increased risk of disease or a newfound lifelong addiction, but patients have incurred financial injury in paying for drugs that not only did not ease their existing medical ailments, but also created new conditions that have further exacerbated their financial situations.  States and local communities have also suffered economic injury.  These communities have seen spikes in crime rates as consumers seek to maintain their habits and incur increased costs stemming from the need to provide treatment for their constituents.  As such, if the Court grants certiorari on the issue, not only should it hold that fraudulent misrepresentations are enough to assert proximate cause, but it should also hold that patients, TPPs, state governments, and municipal communities are all victims of such misrepresentations, and thus, are entitled to recovery.

The Supreme Court should also hold that fraudulent misrepresentations should be sufficient allegations of proximate cause because of the effect that such a holding would have on the legal system moving forward.  Allowing pharmaceutical companies to fraudulently misrepresent drugs at the peril of consumers and TPPs effectively contributes to the overburdening of the legal system.  With fewer persons addicted to drugs that often lead to addiction of more potent drugs, such as heroin and cocaine, the crime rates in local communities would arguably decrease.  With fewer crimes being committed by addicts attempting to maintain their habits, heavily impacted communities and the legal system would become less strained.  As such, the deterrence of fraudulent misrepresentations of a harmful drug’s side effects, especially opioids, would have immense societal benefit.  Thus, not only should the Court grant certiorari on this issue, but it should also hold that fraudulent misrepresentations of the addictive qualities of opioids are sufficient to allege proximate cause in civil RICO claims.


The opioid epidemic has recently subjected pharmaceutical companies to increased scrutiny, which will likely result in an uproar of future opioid epidemic litigation.  Should this litigation arise, the Supreme Court should grant certiorari on the issue of whether fraudulent misrepresentations of the addictive qualities of opioids are sufficient to show proximate cause for civil RICO claims.  Due to the policy considerations and societal implications the opioid epidemic has created, the Supreme Court should hold—as the First, Third, and Ninth Circuits have held—that misrepresentations of the addictive qualities of opioids are sufficient to show proximate cause for a civil RICO claim.

Shannon Porterfield[127]*

       [1].   Opioid Overdose Crisis, Nat’l Inst. on Drug Abuse (Mar. 11, 2021),

      [2].   See Edgar Aliferov, Note, The Role of Direct-Injury Government-Entity Lawsuits in the Opioid Litigation, 87 Fordham L. Rev. 1141, 1142 (2018).

      [3].   See 18 U.S.C. §§ 1961–1968.

      [4].   See infra Part III.

      [5].   Societal costs soared in recent years, rising from roughly $55.7 billion in 2011 to $78.5 billion in 2016. Aliferov, supra note 2, at 1144; see also Nat’l Inst. on Drug Abuse, supra note 1.

      [6].   See Nat’l Inst. on Drug Abuse, supra note 1.

      [7].   Aaron Kessler et al., The More Opioids Doctors Prescribe, the More Money They Make, CNN (Mar. 12, 2018, 8:45 AM),

      [8].   Id.  Hosting such events is not illegal until and unless physicians receive kickbacks in exchange for prescribing the drugs.  Id.  A kickback is any form of payment provided in exchange for an action or transaction that is usually illegal or improper.  See What Is Kickback?, The Law Dictionary,’s%20Law%20Dictionary)-,What%20is%20KICKBACK%3F,job%2C%20contract%2C%20or%20order (last visited Aug. 24, 2021) (defining kickback as “a bribe for routing a job, contract, or order.”).

      [9].   Kessler et al., supra note 7.

     [10].   Id.

      [11].   Nat’l Inst. on Drug Abuse, supra note 1.

     [12].   Id.

     [13].   Id.

     [14].   Understanding the Epidemic, Ctrs. For Disease Control & Prevention, (last visited Aug. 24, 2021).

     [15].   Eugene McCarthy, A Call to Prosecute Drug Company Fraud as Organized Crime, 69 Syracuse L. Rev. 439, 442 (2019).

     [16].   Id.

     [17].   Id. at 478 (quoting Stephanie M. Greene, After Caronia: First Amendment Concerns in Off-Label Promotion, 51 San Diego L. Rev. 645, 648 (2014) (internal citation omitted)).

     [18].   McCarthy, supra note 15, at 478.

      [19].    Id. (brackets in original source) (quoting Art Van Zee, The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, 99 Am. J. Pub. Health 221, 222 (2009)).

     [20].   Id. (quoting Zee, supra note 19, at 222).

     [21].   Richard Ausness, The Current State of Opioid Litigation, 70 S.C. L. Rev. 565, 586 (2019) (quoting Complaint and Demand for Jury Trial at 135, City of Lansing v. Purdue Pharma L.P., No. 1:17-CV-01114 (W.D. Mich. Dec. 19, 2017)).

     [22].   See Aliferov, supra note 2, at 1152–53, 1155.

     [23].   Id. at 1144.

     [24].   Id. at 1152.

     [25].   Id.

     [26].   Id. at 1153–54 (noting that Cardinal Health was sued for its failure to monitor suspicious orders for opioids, which West Virginia argued “facilitated the operation of pill mills throughout the state”).  Cardinal Health agreed to pay $20 million of the $36 million settlement.  Id. at 1154 n.94.

     [27].   See, e.g., id. at 1156–57 (“When initiated by a party other than the government, a direct-injury claim is simple: a plaintiff’s personal interests (e.g., health or property) have been injured by a third party and the plaintiff seeks to recover damages flowing from that injury.”).

     [28].   Id. at 1156.

     [29].   See generally id. at 1160 (noting that “plaintiffs employ either a tort-based theory or equitable theory to complete the direct-injury claim” and subsequently referencing the various tort theories, including RICO).  While RICO was enacted primarily to combat organized crime, its use in other contexts—including the opioid epidemic—has grown substantially, particularly because of its ability to “prosecute an entire criminal enterprise and its constituent members at once.”  McCarthy, supra note 15, at 471, 441.

     [30].   18 U.S.C. § 1962(c).

     [31].   In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2019 WL 4279233, at *2 (N.D. Ohio Sept. 10, 2019) (quoting Boyle v. United States, 556 U.S. 938, 946 (2009)).

     [32].   Id. at *3; see also 18 U.S.C. § 1962(c) (stating that defendants must participate “directly or indirectly”).

     [33].   In re Nat’l Prescription Opiate Litig., 2019 WL 4279233, at *2 (quoting Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir. 1993)).

      [34].  David Farve et al., Racketeer Influenced and Corrupt Organizations, 57 Am. Crim. L. Rev. 1191, 1195, 1197 (2020) (quoting Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256–57 (1994)). 

     [35].   Id. at 1197.  Such acts could include murder, robbery, bribery, extortion, or federal offenses involving bankruptcy or securities fraud.  Id. at 1195–96.  In the criminal context, the required acts that amount to racketeering activity can also include “mail fraud, wire fraud, insurance fraud, false claims, and honest services fraud.”  McCarthy, supra note 15, at 465.

     [36].   Farve et al., supra note 34, at 1197–98.

     [37].   Id. at 1207.

     [38].   McCarthy, supra note 15, at 466.

     [39].   Farve et al., supra note 34, at 1194.

     [40].   McCarthy, supra note 15, at 476.  In the pharmaceutical context, “[pharmaceutical] [e]xecutives, sales representatives, doctors, lawyers, and politicians” often make up such enterprises.  Id.

     [41].   See, e.g., In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2019 WL 4279233, at *3 (N.D. Ohio Sept. 10, 2019) (holding that the plaintiffs “produced sufficient evidence for a reasonable jury to conclude that all [d]efendants . . . associated together for the common purpose of expanding the prescription opioid market,” thereby forming a RICO enterprise).

     [42].   McCarthy, supra note 15, at 477–78.

     [43].   18 U.S.C. § 1964(c); Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharmas., 943 F.3d 1243, 1248 (9th Cir. 2019).

     [44].   18 U.S.C. § 1964(c); Painters, 943 F.3d at 1248.

     [45].   Painters, 943 F.3d at 1248 (citing Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268 (1992)).

     [46].   Ausness, supra note 21, at 595 (asking “whether the injury would have occurred in the absence of the defendant’s conduct”).

     [47].   Id. at 599.  In Ashley County v. Pfizer, Inc., drug companies selling over-the-counter cold medicines used to produce methamphetamine were said not to have proximately caused the counties’ increased costs even though they knew the medicine would be used to make methamphetamine.  552 F.3d 659, 662–73 (8th Cir. 2009).  The court held that the act of selling cold medicine was “totally independent” from the defendant’s production of methamphetamine.  Id. at 670; see also Ausness, supra note 21, at 599–600 (discussing the Ashley County opinion).

     [48].   Holmes, 503 U.S. at 268.

     [49].   503 U.S. 258.

     [50].   See id. at 269.

     [51].   Id. at 269–70 (citations omitted).

     [52].   Id. at 269.

     [53].   In re Avandia Mktg., Sales, Pracs. & Prod. Liab. Litig., 804 F.3d 633, 640 (3d. Cir. 2015); see also Sidney Hillman Health Ctr. of Rochester v. Abbott Labs, 873 F.3d 574, 577 (7th Cir. 2017).  In Sidney Hillman, the plaintiffs’ claim was too speculative to meet the first Holmes requirement.  873 F.3d at 577.   The court held that it was too difficult for the court to determine whether TPPs would have incurred costs from paying for another medication or whether physicians would have prescribed the drug for off-label uses without solicitation; thus, there was too much speculation for the damages to be readily apparent.  Id.

     [54].   Holmes, 503 U.S. at 269.

     [55].   In re Neurontin Mktg. & Sales Pracs. Litig., 712 F.3d 21, 37 (1st Cir. 2013); Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharms., 943 F.3d 1243, 1251 (9th Cir. 2019).

     [56].   In re Neurontin, 712 F.3d at 38.

     [57].   Farve et al., supra note 34, at 1235.

     [58].   553 U.S. 639 (2008).

     [59].   Id. at 649 (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 476 (2006) (“Because an individual can commit an indictable act of mail or wire fraud even if no on relies on his fraud, he can engage in a pattern of racketeering activity . . . without proof of reliance.”)). 

     [60].   See id. at 656.  The RICO statute “provides no basis for imposing a first-party reliance requirement.”  Id. at 660.

     [61].   Id. at 658.

     [62].   Gabrielle Emanuel, Opioid Executive John Kapoor Found Guilty in Landmark Bribery Case, NPR (May 2, 2019, 2:37 PM),; see also First Superseding Indictment at 7–8, United States v. Michael Babich, Crim. No. 16cr10343ADB (D. Mass. Oct. 24, 2017),

     [63].   First Superseding Indictment, supra note 62 at 16.

     [64].   Id. at 25–26.  This was especially dangerous due to the potency of the fentanyl-spray; if the fentanyl-spray was prescribed at the same dosage as other fentanyl-based products on the market, then the patient could risk a fatal overdose.  Id. at 10.

     [65].   Id. at 16–17.

     [66].   Id. at 32–33.

     [67].   See Emmanuel, supra note 62; see also Hannah Kuchler et al., Insys Executives Are Sentenced to Prison Time, Putting Opioid Makers on Notice, PBS (Jan. 23, 2020),

     [68].   See Emmanuel, supra note 62.

     [69].   See infra Part III.A–B.

     [70].   See infra Part III.A–B.

     [71].   See Sergeants Benevolent Assoc. Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 137 S. Ct. 140 (2016).

     [72].   943 F.3d 1243 (9th Cir. 2019).

     [73].   Id. at 1252–53.

     [74].   Id. at 1246 (alleging that defendants misrepresented the risk of bladder cancer to increase sales of Actos).

     [75].   Id. at 1247, 1251.

     [76].   Id. at 1251.

     [77].   Id. at 1252 (reasoning that “all patients and TPPs who paid for Actos on the premise that it did not cause an increased risk of bladder cancer were allegedly defrauded by Defendants and suffered the same direct, economic injury: payments for a drug which would not have been purchased if suitably described”).

     [78].   Id. at 1257.

     [79].   Id.

     [80].   See generally In re Epogen & Aranesp Off-Label Mktg. & Sales Pracs. Litig., No. MDL 08-1934 PSG, 2009 WL 1703285 (Cal. June 17, 2009) (detailing the contrary holding).

     [81].   See In re Epogen, 2009 WL 1703285, at *7–8.

     [82].   See Painters, 943 F.3d at 1257–59 (discussing the benefits of deterring wrongful conduct and allowing economic recovery for victims).

     [83].   712 F.3d 21 (1st Cir. 2013).

     [84].   Id. at 25–26.

     [85].   Id. at 28.

     [86].   Id. at 30.

     [87].   Id. at 37–38.

     [88].   804 F.3d 633 (3d Cir. 2015).

     [89].   Id. at 635.

     [90].   Id.

     [91].   Id. at 635–36.

     [92].   Id. at 645.

     [93].   Id.

     [94].   Id.

     [95].   873 F.3d 574 (7th Cir. 2017).

     [96].   Id. at 575.  While physicians can prescribe medications to their patients to treat off-label conditions, drug manufacturers are prohibited from promoting drugs for such purposes.  Id.

     [97].   Id. at 577; see also Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269 (1992).

     [98].   Sidney Hillman, 873 F.3d at 578.

     [99].   620 F.3d 121 (2d Cir. 2010).

   [100].   Id. at 133–34.

   [101].   Id. at 134.

   [102].   See supra Part III.A.  Sidney Hillman and UFCW deal with fraudulent promotions of “off-label” uses and pricing decisions rather than a fraudulent failure to warn of a drug’s known risk of harmful side effects.  See supra Part III.B.

   [103].   See First Superseding Indictment, supra note 62, at 7–8.

   [104].   See id. at 26–27; see also Kuchler et al., supra note 67; Emanuel, supra note 62; In re Avandia Mktg., Sales, Prac. & Prod. Liab. Litig., 804 F.3d 633, 635 (3d Cir. 2015).

   [105].   See First Superseding Indictment, supra note 62, at 7–8, 26–27; In re Avandia, 804 F.3d at 635.

   [106].   See Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharmas., 943 F.3d 1243, 1246 (9th Cir. 2019).

   [107].   See First Superseding Indictment, supra note 62, at 17–18, 20 (quoting Burlakoff telling a sales representative “[t]hey do not need to be good speakers, they need to write a lot of . . . [prescriptions for the Fentanyl-Spray]”); In re Neurontin Mktg. & Sales Prac. Litig., 712 F.3d 21, 28 (1st Cir. 2013).

   [108].   See In re Neurontin, 712 F.3d at 40; Emanuel, supra note 62; see also First Superseding Indictment, supra note 62, at 32–33 (misleading insurers as to their employment, patient diagnoses, and past medications used).

   [109].   In re Neurontin, 712 F.3d at 40; First Superseding Indictment, supra note 62, at 20–22, 27, 30–31.

   [110].   See supra Part III.A.

   [111].   See In re Avandia Mktg., Sales, Prac. & Prod. Liab. Litig., 804 F.3d 633, 640 (3d Cir. 2015).

   [112].   See supra notes 52–53 and accompanying text.

   [113].   In re Avandia, 804 F.3d at 644.

   [114].   See Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269–70 (1992); see also supra notes 54–55 and accompanying text.

   [115].   Painters, 943 F.3d at 1251–52; see also In re Neurontin, 712 F.3d at 37.

   [116].   In re Avandia, 804 F.3d at 645–46; Painters, 943 F.3d at 1251–52.

   [117].   See, e.g., Painters, 943 F.3d at 1251–52.  It does not matter if some plaintiffs incurred extra or less harm from taking a drug that has harmful benefits; all patients are held to suffer the same direct economic injury.  Id.

   [118].   In In re Avandia, the court noted that TPPs are held to “suffer[] direct economic harm when, as a result of [a pharmaceutical company’s] alleged misrepresentations, they pa[y] supracompetitive prices for [brand drugs] instead of purchasing lower-priced generic [drugs].”  In re Avandia, 804 F.3d at 639–40 (citing In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 531 (3d Cir. 2004)).

   [119].   Painters, 943 F.3d at 1257.

   [120].   Id.

   [121].   See, e.g., id. at 1252 (discussing how patients and TPPs suffered economic injury paying for the drug Actos, which they would not have purchased if not for the fraudulent misrepresentation).

   [122].   See generally Nat’l Inst. on Drug Abuse, supra note 1 (discussing the “total ‘economic burden’ of prescription opioid misuse . . . including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement”).

   [123].   See id. (stating that roughly five percent of those who developed an opioid addiction transitioned to heroin and roughly eighty percent of those who use heroin misused opioids before using heroin).

   [124].   See, e.g., In re Neurontin Mktg. & Sales Prac. Litig., 712 F.3d 21, 38–39 (1st Cir. 2013) (showing that TPPs incur injury from paying for additional prescriptions due to fraudulent marketing schemes).

   [125].   Id.

   [126].   Id. at 38–39.

       *.   J.D. Candidate 2022, Wake Forest University School of Law.  Shannon would like to thank the Wake Forest Law Review Board and Staff for their hard work and time on this Comment.  She would also like to thank her family and friends for their unyielding support and encouragement.

11 Wake Forest L. Rev. Online 70

Alan J. Meese*

I. Introduction

       Horizontal restraints are unlawful per se unless a court can identify some redeeming virtue that such restraints may create.  In National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma (“NCAA”),[1] the Supreme Court rejected this standard, refusing to condemn horizontal restraints on price and output imposed by the NCAA without specifying any possible redeeming virtues.[2]  The Court emphasized that other restraints not before the Court were necessary to create and maintain athletic competition like that supervised by the NCAA.[3]  This exemption for sports leagues ensures that all restraints imposed by such entities merit Rule of Reason scrutiny, regardless of how harmful they appear.

   Building on a forthcoming article,[4] this Essay contends that NCAA’s sports league exemption contravenes traditional antitrust principles, including the ancillary restraints doctrine (which NCAA ignored). This Essay also argues that the exemption increases the number of false negatives and potentially impedes the conduct of Rule of Reason analysis.  Finally, this Essay explains how the exemption inspired and informed an ill-advised doctrinal innovation, the so-called “Quick Look” methodology of Rule of Reason analysis, whereby courts condemn certain restraints “in the twinkling of an eye.”[5]  Some lower courts have recently extrapolated from this approach and exempted restraints limiting rivalry for the services of student athletes from Rule of Reason scrutiny, rendering such restraints lawful per se.[6]

       The United States Supreme Court is currently reviewing the Ninth Circuit’s holding in National Collegiate Athletic Association v. Alston, which condemned NCAA regulations limiting the size of athletic scholarships.[7]  This Essay provides the Alston Court with a roadmap for eliminating the sports league exemption, thereby placing such restraints on equal footing with restraints imposed by other entities.  The Essay also advises the Court to reject lower court decisions that built upon the Quick Look doctrine and have treated restraints governing student athlete eligibility as lawful per se, thus exempting them from Rule of Reason scrutiny.  Finally, the Essay concludes that the restraints before the Court in Alston may well produce cognizable antitrust benefits by overcoming the market failure that would result from unbridled rivalry for the services of student athletes. The Essay submits that the Court should articulate a Rule of Reason methodology in Alston that reflects the non-technological nature of such efficiencies.

II. The Rule of Reason and the Per Se Rule

The Sherman Act bans agreements “in restraint of trade.”[8] In Standard Oil Co. of New Jersey v. United States,[9] the Court read the Act to prohibit only agreements that restrain trade “unreasonably,”[10] i.e., produce monopoly or its consequences: higher prices, reduced output.  and/or reduced quality.[11]  Ordinary application of this Rule of Reason is fact-intensive, requiring plaintiffs to establish that the restraint produces concrete antitrust harm.[12]  But certain restraints are “unlawful per se,” and do not warrant full-blown analysis.[13]  In Northern Pacific Railway Co. v. United States (“NPR”), the Court articulated a two-part standard for determining whether restraints in a particular category are always unreasonable and thus unlawful per se.[14]  NPR requires courts to ask two questions about restraints in the category: do such restraints produce a “pernicious effect on competition” and, if so, do they also always lack redeeming virtues.[15] 

Despite NPR’s reference to pernicious effects, application of this first prong does not require a judicial prediction that restraints will produce actual economic harm.[16]  Instead, courts treat elimination of rivalry as itself a “pernicious effect.”[17]  Numerous garden variety restraints, including formation of partnerships and restraints ancillary thereto, produce a “pernicious effect” under this prong.[18]  Whether this standard condemns a restraint thus turns on the second prong, namely, whether restraints lack redeeming virtues.[19]  For example, price fixing between two independent lawyers is unlawful per se because such agreements cannot create redeeming virtues.[20]  But formation of a partnership by the same lawyers might produce redeeming virtues and thus merits Rule of Reason treatment.[21]  Both restraints extinguish horizontal price rivalry.  But formation of the partnership may also produce redeeming virtues.[22]

The NPR standard post-dates the ancillary restraints doctrine.[23]  But both doctrines ultimately ask the same question about horizontal restraints: can eliminating rivalry also produce efficiency benefits?  While the NPR standard takes a categorical approach, the ancillary restraints doctrine applies case-by-case.[24]  Repeated applications of the ancillary restraints doctrine could establish that particular categories of restraints never or sometimes produce redeeming virtues, thus informing application of the NPR standard.[25]

If restraints cannot produce such virtues, courts may safely conclude that parties have invested resources to create an agreement that restricts rivalry with no prospect of efficiencies.  This conclusion implies that the parties believe they can exercise market power.[26]  Even if the parties are incorrect, condemnation of such restraints does no harm and deters future price fixing.[27]

  If restraints may produce such virtues, further inquiry is warranted regarding their ultimate impact.  Moreover, a court assessing such restraints under full-blown Rule of Reason analysis must begin by assuming that the restraint before it might produce such benefits and calibrate the methodology of such inquiry accordingly.

The Court initially recognized very few redeeming virtues, limiting the category to what Nobel Laureate Oliver Williamson describes as technological efficiencies.[28]  Beginning with Continental T.V. v. GTE Sylvania, Inc.,[29] the Court has repeatedly recognized a different category of virtues—namely, correction of market failures that would occur if parties to the restraint had instead continued unbridled rivalry.[30]  As this Essay submits, the methodology of full-blown Rule of Reason analysis should turn upon the nature of these virtues.

III.  NCAA’s Misapplication/Ignorance of NPR and Resulting Sports League Exemption

In Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association,[31] the Court evaluated an agreement setting the price and output of televised college football games.[32]  Plaintiffs University of Georgia and University of Oklahoma, who presumably supported restrictions on player compensation, challenged the price and output restrictions.[33] Courts at the time defined redeeming virtues narrowly in the horizontal context, banning as unlawful per se restraints that seemed plainly ancillary to legitimate ventures.[34]  Nonetheless, the Tenth Circuit rejected automatic condemnation, at least arguendo, and assessed whether the restraints were ancillary to the NCAA’s legitimate venture.[35]  Answering this question in the negative, the court condemned the restraints.[36]

The defendants reiterated their invocation of the ancillary restraints doctrine in the Supreme Court in NCAA.[37]  However, the Court did not mention the NPR standard or the ancillary concept.  Thus, the Court did not ask whether the restraints might produce redeeming virtues or enhance the efficiency of a valid venture.  Instead, the Court immunized the restraints before it from per se condemnation because the NCAA had adopted other restraints not before the Court that would survive per se condemnation.[38]  Such other restraints included horizontal agreements ensuring that players were bona fide students and were not semi-professional athletes that vaguely associated with the university.[39]  These latter rules, the Court said, included bans on paying players.

Lower courts, including the Ninth Circuit in In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (“Alston”),[40] have properly read NCAA to exempt restraints imposed by sports leagues from per se condemnation, regardless of whether the restraint may produce redeeming virtues.[41]  As Professor Hovenkamp has explained, this exemption would “shelter an agreement between member schools fixing the price of admission tickets or of hot dogs purchased in the stands.”[42]  Unlike restraints that merit Rule of Reason scrutiny because they survive the NPR standard or the ancillary restraints test, restraints enjoying the sports league exemption will necessarily include entire categories of restraints that would ordinarily be unlawful per se because they cannot produce redeeming virtues.  Thus, courts cannot assume there is some probability that such restraints might produce redeeming virtues.  Instead, courts must assume that application of NPR’s second prong would condemn some such restraints as unlawful per se.

By invoking restraints not before it to justify the sports league exemption, the Court assumed that such restraints would themselves avoid per se condemnation.  This assumption was surprising, given the Court’s recent condemnation of apparently beneficial horizontal restraints in decisions it expressly reaffirmed.[43]  While the Court admitted that restrictions on player compensation prevented price competition, it opined that unbridled rivalry for the services of student athletes would transform the NCAA into a semi-professional league, tarnishing the league’s brand—college football—associated with an academic tradition.[44]  The Court analogized such restraints to vertical agreements that simultaneously restricted intra-brand rivalry but enhanced inter-brand competition by overcoming market failure.[45]  Lower courts have read this language as retracting the scope of the per se rule vis a vis horizontal restraints more generally.[46]

IV. The Sports League Exemption Has No Basis

NCAA’s sports league exemption saved numerous restraints, including those before it, from a substantially overinclusive per se rule.[47]  Many such restraints were likely procompetitive.  Perhaps the exemption was a second-best tactic for mitigating the anti-consumer impact of an overly broad per se rule.  The Supreme Court, however, has undermined this justification by narrowing the scope of the per se rule.  Moreover, this exemption contradicts basic antitrust principles and has produced other negative consequences, including an additional and stronger exemption, as described below in Part V.

The Court did not explain why antitrust treatment of restraints not before it determines the per se status of those restraints that are.  Horizontal cooperation is necessary to create and maintain numerous other ventures besides sports leagues.[48]  However, courts do not immunize restraints imposed by such other ventures from per se condemnation simply because the restraints accompany a valid venture.  Instead, courts employ the ancillary restraints doctrine to test whether such restraints might produce cognizable benefits that further the venture and thus warrant an additional fact-based assessment.[49]  The content and nature of this threshold inquiry assumes that sometimes the answer to this question will be “no.” That is, some restraints that accompany an otherwise valid joint venture cannot produce any cognizable benefits but will instead simply reduce rivalry simpliciter.[50]  Courts condemn such restraints while allowing the venture to proceed.[51]

Robert Bork, who rehabilitated the ancillary restraints doctrine, endorsed this approach in a path-breaking article.[52]  Bork explained that horizontal restraints that accompanied lawful ventures were not ancillary if they were “incapable of adding to the efficiency of the integration which they seemingly accompany.”[53]  Bork instanced a restrictive covenant that accompanied formation of a “product safety testing laboratory” by horizontal rivals.[54]  The formation and operation of the laboratory would constitute lawful concerted action, just like formation and continued operation of the NCAA.[55]  Still, Bork concluded that the covenant could not be ancillary and was thus unlawful per se.[56]  Bork’s analysis confirms that is no reason to treat restraints that accompany sports leagues more favorably  than those that accompany other ventures when applying the NPR standard.

V. Retaining the Sports League Exemption Does Positive Harm

Perhaps the sports league exemption is a case of “no harm, no foul.”  Most exempted restraints would merit Rule of Reason scrutiny under more recent applications of the NPR standard anyway.  Moreover, both NPR and Rule of Reason analysis ultimately ask whether challenged restraints produce monopoly or its consequences.[57]  Per se condemnation reflects a conclusion that Rule of Reason analysis will condemn the restraint.[58]  As shown below, however, the sports league exemption still does positive harm, both by weakening the per se rule and also by distorting related aspects of antitrust doctrines. In particular, the exemption has contributed to a distortion of the methodology of Rule of Reason analysis that courts apply and not merely those adopted by sports leagues.

V.A. The Sports League Exemption Deters Legitimate Challenges and Increases False Negatives.

Full-blown Rule of Reason analysis is not free.  Plaintiffs must expend resources to establish a prima facie case by proving either: (1) the restraint produces actual detrimental effects or (2) the parties possess the economic power necessary to impose harm.[59]  Defendants can contest these assertions, further increasing adjudication costs.  Plaintiffs fail to establish such a case 97 percent of the time.[60]  Presumably, numerous potential plaintiffs do not attempt such a showing, leaving harmful restraints unchallenged.  Knowing this, defendants will, at the margin, adopt some unambiguously harmful restraints they otherwise would not have adopted, knowing, as they will, that the sports league exemption will raise the bar for plaintiffs challenging such restraints.[61]  In sum, the sports league exemption both increases the number of false negatives and encourages additional harmful restraints.

V.B. The Sports League Exemption Distorts the Rule of Reason Methodology That Courts Employ.

Rule of Reason methodology should turn upon the nature of possible redeeming virtues that save restraints from per se condemnation.  Application of the NPR standard and ancillary restraints doctrine, both of which NCAA ignored, identifies the relevant virtues, if any, that restraints might produce.  If such virtues are technological, the three-part Rule of Reason test applied in Alston and informed by NCAA is generally appropriate.[62]  Proof of higher prices (or in Alston, reduced compensation) should establish a prima facie case, casting upon the defendants a burden to adduce evidence of such efficiencies.[63]  If defendants satisfy this burden, plaintiffs can prove a less restrictive alternative or show that the restraint’s harms exceed its benefits.[64]  This framework assumes whatever benefits defendants prove coexist with the harms that plaintiffs purportedly demonstrated to establish a prima facie case.[65]

However, some restraints survive per se condemnation because they may produce non-technological efficiencies by overcoming market failure.[66]  Here, a price-based standard makes no sense.  If restraints overcome market failure, pre-restraint prices reflect a poorly functioning market that the restraint corrects.  Such prices are not a useful benchmark for comparison to post-restraint prices.  Instead, proof that post-restraint prices exceed the pre-restraint baseline is entirely consistent with a conclusion that the agreement overcomes a market failure and produces redeeming virtues, the prospect of which resulted in Rule of Reason treatment.[67]  Antitrust procedure thus precludes allowing plaintiffs to prevail based solely upon such evidence.[68]

Moreover, once a plaintiff does make out a prima facie case in whatever way, proof that the restraint produces significant non-technological benefits undermines the rationale for balancing benefits against harms.  Such balancing presumes that the restraint produces simultaneous harms and benefits, like a merger to monopoly that generates economies of scale that may offset the transaction’s harms.[69]  However, a defendant’s showing that a restraint overcomes a market failure undermines the assumption that benefits coexist with harms.[70]  Instead, the evidence is at least equally consistent with the conclusion that the restraint only produces benefits—benefits that manifest themselves as prices higher than those produced by the pre-restraint, poorly functioning market.[71]  Similar logic undermines the search for “less restrictive” alternatives, because there is no reason to assume that the challenged restraint is “restrictive” in the first place.

The sports league exemption deprives courts of the information necessary to ascertain what Rule of Reason methodology makes sense.  Alston may be such a case.

V.C. The Exemption Encouraged Adoption of an Ill-Considered “Quick Look” Methodology of Rule of Reason Analysis.

The restraint before the Court in NCAA expressly set price and output.  Without identifying any redeeming virtues, the Court nonetheless assessed the restraints under the Rule of Reason, because they accompanied a sports league and were thus exempt from the NPR standard.[72]  The Court began by invoking the District Court’s findings that the restraint had increased prices compared to a (hypothetical) non-restraint baseline.[73]  Absent possible redeeming virtues, this price-based method of making out a prima facie case made perfect sense.  Nonetheless, the NCAA contended that the plaintiffs’ case should fail absent proof that the defendants possessed sufficient shares of a properly defined market.[74] 

The Court could have invoked its ultimate conclusion that the defendants did, in fact, possess a large share of a properly defined market.[75]  Instead, the Court issued a broader pronouncement, applicable well-beyond the case before it, regardless of a defendant’s market position.  In a passage that quoted National Society of Professional Engineers v. United States,[76] the Court announced:

As a matter of law, the absence of proof of market power does not justify a naked restriction on price or output. To the contrary, when there is an agreement not to compete in terms of price or output, ‘no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement.’[77]

The Court also quoted Professor Areeda’s assertion that some restraints were so obviously harmful that courts could condemn them “‘in the twinkling of an eye.’”[78]

The Court’s quotation of Professional Engineers suggests that it equated “naked” restraints with those that could not produce redeeming virtues.[79]  Combined with the “twinkling of an eye” metaphor, this language inspired the so-called “Quick Look” methodology of Rule of Reason analysis.[80] Under this approach, plaintiffs may avoid establishing actual detrimental effects or market power if they convince the tribunal that, while not unlawful per se, the restraint is nonetheless “inherently suspect.”[81]  Initially, some proponents touted the Quick Look as a pro-defendant “safety valve” that tempered an overbroad per se rule.[82]

As a matter of decision theory, this approach makes perfect sense in a case like NCAA.  If a particular class of restraint is usually anticompetitive and rarely, if ever, produces benefits, the chance of false positives is extremely low.  Reducing plaintiffs’ burden of establishing a prima facie case would (properly) encourage such challenges and minimize the resources expended on litigation. 

However, advocates and courts have not confined the Quick Look to restraints deemed “naked” because they lack redeeming virtues.[83]  Indeed, the Alston plaintiffs began their argument before the Supreme Court by attempting to expand the definition of “naked,” contending that the challenged restraints were “naked,” despite the finding below that they produced significant benefits.[84]  Moreover, scholars and courts have held out the possibility that a restraint may be inherently suspect and thus subject to the Quick Look, regardless of whether it is “naked” as defined by NCAA.[85]  Once courts and agencies created the Quick Look methodology, plaintiffs naturally pressed courts to declare numerous restraints “inherently suspect,” hoping to eliminate the burden of establishing antitrust harm.[86]  The result has been an increase in expensive and distracting disputes about whether various restraints are “inherently suspect”—disputes that defendants almost always win.[87]  The cost of such disputes produces no offsetting social benefits, as failure to establish that a restraint is inherently suspect relegates plaintiffs to the standard requirement to prove anticompetitive harm anyway.

To be sure, a more expansive definition of “inherently suspect” could seemingly lighten plaintiffs’ burdens in a larger number of cases.  However, proponents of the Quick Look have not offered a tractable methodology for distinguishing “inherently suspect” restraints from those properly assessed under full-blown Rule of Reason analysis.[88]  Absent such a methodology, the pro-plaintiff Quick Look is probably best reserved for those restraints that do not merit Rule of Reason scrutiny in the first place—a set that would be empty if courts properly and uniformly applied the NPR standard and ancillary restraints test.

In any event, the Quick Look has always rested on shaky jurisprudential ground.[89]  NCAA’s suggestion that the nakedness of a restraint itself establishes a prima facie case was dicta, given the district court’s finding that the restraint produced actual detrimental effects.[90]  Moreover, Professor Areeda’s “twinkling of an eye” metaphor described a hypothetical case in which courts determined at the summary judgment stage that defendants possessed a dominant market position and thus market power.[91]  This conclusion did not support any suggestion that the mere existence of a restraint, no matter how apparently harmful, could itself establish a prima facie case.[92]  Finally, while the Supreme Court has endorsed the Quick Look in concept,[93] it has never condemned a restraint under the Rule of Reason without first finding that the agreement produced concrete anticompetitive harm.[94]

Moreover, NCAA’s assertion that “naked” restraints should themselves establish a prima facie case regardless of market share or anticompetitive effects was dicta, given the Court’s holding that the plaintiffs had in fact established market power and actual detrimental effects.  Finally, the actual agreement before the Court, which could not produce redeeming virtues, bore little meaningful resemblance to restraints such as those in Alston that could produce such virtues.  It would thus be hazardous, to say the least, to generalize these dicta to apply to potentially beneficial restraints.[95]  Indeed, the only restraints that would seem analogous to those before the NCAA Court are those that should be condemned as unlawful per se in the first place.  NCAA’s unjustified exemption of the restraints before it from per se condemnation thus inspired a methodology of Rule of Reason analysis that was in fact only appropriate for restraints that were not properly subject to Rule of Reason analysis in the first place.

V.D. NCAA Inspired a New and More Powerful Exemption.

NCAA spawned another, more powerful exemption, one squarely before the Court in Alston.  The Quick Look’s logic cuts both ways.  If some restraints that survive per se condemnation are almost always harmful on balance, presumably some are nearly always beneficial.  An antitrust regime could reflect this fact, making it especially difficult for plaintiffs to establish a prima facie case and/or easier for defendants to rebut such a case.  Over a decade ago, the Seventh Circuit embraced such logic, holding that a NCAA Bylaw is “presumed procompetitive” when it is “clearly meant to help maintain the ‘revered tradition of amateurism in college sports’ or the ‘preservation of the student-athlete in higher education.’”[96]  The court built upon dicta in American Needle, Inc v. National Football League,[97] which itself invoked NCAA’s mistranslation of Professor Areeda’s “twinkling of an eye” metaphor.[98]

Defendants have invoked this line of precedent, albeit without the term “Quick Look,” preferring instead the phrase “twinkling of an eye.”[99]  Indeed, this pro-defendant approach is really a rule of per se legality and thus an outright exemption from antitrust scrutiny for covered restraints because the “presumption” in favor of such restraints is irrebuttable.[100]  It is likely no coincidence that this pro-defendant irrebuttable presumption arose in the context of sports leagues in general and the question of student athlete eligibility in particular.  After all, the very existence of NCAA’s sports league exemption broadcasts that “sports are different” and are therefore susceptible to more relaxed antitrust scrutiny than more mundane commercial endeavors.  Thus, a pro-plaintiff methodology born from an unjustified sports league exemption has morphed into a second and more ironclad exemption. This Essay contends that the Court should reject this exemption as contrary to antitrust doctrine and policy.[101]

VI. What the Court Can Do About It In Alston

What, then, can the Supreme Court do to correct for this untethered and harmful sports league exemption and the subsequent doctrinal consequences described above?  Most aggressively, the Court could order re-argument and add three questions for consideration: (1) are all restraints imposed by sports leagues exempt from per se condemnation under the NPR standard?; (2) do restraints such as those reviewed in Alston possibly produce redeeming virtues?; and (3) if so, what are those virtues?  After such re-argument, the Court could overrule that portion of NCAA creating the sports league exemption, while reiterating the condemnation of express limitations on price and output of televised games.[102]  The Court would then have to face the question that has eluded a fully considered decision since 1984, namely, whether horizontal restrictions on player compensation can produce redeeming virtues and thus survive per se condemnation under the NPR standard.

The Court could also take a different approach altogether, confining itself to the present record and arguments.  The Court could still begin by noting that it is only applying the exemption arguendo because neither party challenged it.  It could also note that it generated the exemption when courts misapplied the NPR standard and banned bona fide ancillary restraints, such that the exemption saved many procompetitive restraints from wrongful condemnation.[103]  The Court could then note that, given today’s more accurate application of the NPR standard, the exemption no longer performs this function.[104]  Such a statement could encourage lower courts to abandon the exemption, teeing up Supreme Court review.

Application of the exemption would ordinarily preclude consideration of whether the challenged restraints might produce redeeming virtues until after the plaintiff establishes a prima facie case.  But the Alston Court could answer this question before a full-blown analysis.  The defendants’ bid to exempt their restraints from even Rule of Reason scrutiny necessarily assumes that such restraints usually, or even always, produce redeeming virtues by protecting and enhancing the amateur nature of NCAA sports from unbridled rivalry for players.[105]  While not a sufficient condition for such an exemption, this assumption is certainly necessary.[106]

Recent commentary and some questions at oral argument, however, seem to take issue with this threshold assumption by, for instance, analogizing limits on player compensation to putative limits on coaches’ salaries.[107]  The latter, of course, would be unlawful per se absent the sports league exemption.[108]  Indeed, the plaintiff began its oral argument by characterizing the restraints before the Court as “naked horizontal monopsony restraints that would be per se unlawful in any context.”[109]

This Essay submits that the NCAA dicta correctly signaled that agreements restricting player compensation could create redeeming virtues, notwithstanding Nick Saban’s unregulated salary.[110]  To be sure, the restraints restrict atomistic rivalry for players.  But as Standard Oil itself recognized, some agreements that restrict atomistic rivalry have the “legitimate purpose of reasonably forwarding personal interest and developing trade” and are thus not unreasonable.[111]  The Court in Sylvania concurred, explaining that some restrictions on “a purely competitive situation” can overcome free riding, correct a market failure, and enhance inter-brand competition.[112]  There is no reason to suspend this logic because the restraints govern buying rather than selling.[113]  NCAA’s dicta, which addressed the validity of compensation limits, expressly invoked Sylvania, suggesting that such restraints could “enhance market-wide competition.”[114]

Sylvania and NCAA assumed that product differentiation is beneficial.  Moreover, the “more accurate economic conceptions” that courts must apply when assessing restraints in “the light of reason” bolster NCAA’s assertion that unbridled rivalry will produce insufficient differentiation.[115]  Imagine that schools could include non-students on teams, perhaps providing compensation equal to the cost of attendance.[116]  Each team would fully internalize the private benefits of including non-students. These benefits could include, for example, improved winning percentages.  But no school would internalize the full impact of such participation upon the nature of the product.  If a few schools chose this route, others would predictably follow suit, producing an equilibrium where few, if any, schools fielded teams exclusively populated by students.  Only a horizontal agreement preventing rostering non-students would reliably prevent a race to the bottom that would transform college football into a football team owned by a college but full of non-students.

The agreement just described is as “pernicious” under NPR as one restricting player compensation.[117]  Both restrict rivalry for inputs.  But plaintiffs have properly declined to challenge such restrictions.[118]  This concession reflects recognition that unbridled rivalry over the composition of rosters would produce a market failure manifesting itself in negative differentiation of the NCAA’s product, reduced inter-brand competition, and decreased consumer welfare.[119]  Translated into the NPR standard and ancillary restraints test, such restrictions can produce redeeming virtues and enhance the efficiency of an otherwise valid venture.

Defendants’ bid for a stronger exemption regarding compensation restrictions rests upon a similar claim.  Unbridled compensation rivalry, they say, will result in an additional market failure, also undermining the quality of the NCAA’s product and reducing demand.[120]  Indeed, plaintiffs have asserted that the challenged restraints reduce student-athlete compensation compared to what unfettered rivalry will produce.[121]  Such limits on compensation rivalry reinforce the requirement that participants be students.  If schools could pay whatever the market would bear, the supply of non-student labor would increase significantly, in both numbers and quality, thus increasing schools’ temptation to include non-student participants and undermining the “student-only” policy.

The defendants, district court, and Ninth Circuit agree that the propensity of a restraint to prevent unbridled compensation rivalry helps differentiate collegiate from professional sports, improving consumer welfare.[122]  They only disagree as to the magnitude of benefits and as to whether the restrictions are broader than necessary.[123]  Thus, both lower courts agreed that restrictions on compensation unrelated to education—that is, restrictions that prevent the payment of an outright salary—are procompetitive, even though such restrictions extinguish the very rivalry that would produce the largest increase in student-athlete compensation.[124]  Indeed, one implication of Alston’s result is that a less restrictive means of achieving the objective would entail voluntary integration, independent of any exercise of market power.[125]  No one has articulated a similar account of how limiting coaching staffs to students, for instance, or limiting coaches’ salaries to the cost of attendance, would distinguish the quality of the product that schools offer to paying fans in a manner that would appeal to consumers.[126]

However, a conclusion that compensation restraints may produce redeeming virtues is simply a necessary condition for application of the player eligibility exemption.  Proponents must also explain why this stronger exemption is superior to Rule of Reason scrutiny.  Hopefully, the Court will reject this proposed new exemption, at least for now.  As explained in Subpart V.C of this Essay, the basis for the original Quick Look, on which American Needle’s dicta tried to build, was questionable at best.[127] 

Therefore, the pro-plaintiff Quick Look has very little to recommend it and is surely no model for further doctrinal evolution that completely shields some concerted action from Sherman Act scrutiny.  NCAA’s apparent endorsement of “a great majority of such restrictions” was dicta and rested in part upon a concession by plaintiffs—the University of Georgia and the University of Oklahoma—with strong economic interests to preserve such restrictions.[128]  Even on their own terms, these dicta conceded that some such restrictions did not enhance competition, thereby implying that courts should assess such restraints under the Rule of Reason to separate the wheat from the chaff.

Proponents of narrowing the scope of per se rules in favor of full-blown Rule of Reason analysis in other contexts have persuasively explained that such fact-intensive scrutiny can generate information about the actual impact of restraints previously condemned, thereby informing future assessment regarding whether something other than full-blown analysis is appropriate.[129]  Such scrutiny can also help parties, courts, and scholars hone their theoretical conceptions regarding how to think about the impact of such restraints and what questions a tribunal should ask when examining them.  By analogy, the exemption sought by the defendants would prevent the generation of information about the impact of exempted agreements that decisions such as O’Bannon and Alston have themselves produced, information that scholars and practitioners alike can employ to assess their true economic effect.  Perhaps such assessments would confirm defendants’ assumption regarding the uniformly procompetitive nature of such agreements, but perhaps not.

Of course, at least in the short run, a full-blown Rule of Reason assessment will consume more resources than the defendants’ new exemption.  But this would be true of any exemption from ordinary full-blown analysis.  Moreover, this putative benefit is partly illusory.  Once parties understand that inclusion in a particular category will obviate Rule of Reason scrutiny, defendants will predictably invest resources attempting to convince courts that restraints in fact fall into this category, while plaintiffs will invest resources to prove the opposite.[130]  These additional litigation-related investments will partly offset the savings from eliminating full-blown scrutiny.  Finally, as noted earlier, the prospect of complete exemption from any antitrust scrutiny will encourage potential defendants to adopt some eligibility related restraints that are anticompetitive on balance, knowing as they will that such restraints will be immune from antitrust scrutiny.[131]

Assuming the Court does reject the defendant’s bid for a new exemption, it will finally have to wrestle with the problem that consumed the Ninth Circuit—namely, application of the full-blown Rule of Reason to the challenged restraints.  Here, NCAA itself strongly bolsters the Ninth Circuit’s approach, which found that plaintiffs had established a prima facie case by showing that, but for the restraints, NCAA members would have provided greater compensation to student-athletes—at least those playing football and basketball.[132]  However, as explained in Part V.B of this Essay, this approach seems to contradict the apparent rationale for rejecting per se condemnation of such restraints in the first place.[133]  After all, if such restraints do in fact avoid per se condemnation, they do so because they may produce non-technological efficiencies by eliminating or attenuating a market failure.[134]  Thus, proof that such restraints reduce player compensation below the level that unbridled rivalry would produce is unremarkable given that such restraints would properly survive per se condemnation in the first place.[135]  That is, a conclusion that such proof establishes a prima facie case rests upon an arbitrary choice between two entirely different accounts of the impact of such restraints; one reflecting a harmful exercise of market power and the other reflecting an entirely beneficial example of horizontal voluntary integration, closely analogous to the numerous almost mundane restraints agreed upon by franchisees upon entry into a particular franchise system.[136]

To be sure, the plaintiffs have also convinced the Ninth Circuit that the defendants possess market power—indeed, a monopsony—in a properly defined relevant market, although defendants apparently stipulated this market.[137]  Still, even dominant firms enter agreements that overcome market failures and produce benefits.[138]  Proof that such a firm has entered a contract does not, without more, logically give rise to a presumption that the agreement produces antitrust harm.  This is so even if the restraint produces prices that are higher than those that a non-restraint world would create.  Only proof that the challenged restraint reduces output, properly defined, would, as a logical matter, suffice to establish a prima facie case.[139]  However, plaintiffs apparently made no attempt to define the proper measure of output in this context or link the imposition of the restraints to any reduction in that measure. 

The Court could therefore reverse and remand for additional assessment of whether the plaintiffs have established a prima facie case.  The plaintiffs would thus have an opportunity to define the proper measure of output and prove that the restraint reduced output measured in this manner.

In any event, regardless of how the plaintiffs have established a prima facie case, the defendants have in fact satisfied their burden of producing evidence that the challenged restraints produce significant benefits.  If the defendants had not discharged this burden, there would have been no need for the plaintiffs to adduce evidence of a less restrictive alternative that supposedly produces identical benefits.  Moreover, as explained earlier, proof of such benefits further undermines any presumption that a restraint produces anticompetitive harm, in this case, by establishing that the agreement overcomes a market failure.[140]  As a result, there is no rationale for calculating the magnitude of these benefits or comparing such benefits to presumed harms—because there is no longer any reason to presume that such harms exist.  Indeed, proof that the restraint in fact overcomes a market failure both negates any presumption of harm and establishes that the restraint produces benefits, thus requiring a conclusion that the practice unambiguously improves welfare.

Proponents of the lower court’s decision may respond that courts should nonetheless assess whether there is a less restrictive means of achieving the same benefits as the challenged restraints.  Proof that such an alternative exists, they might say, suggests that the defendants have adopted the restraint mainly or just partly to exercise market power.  But any such argument begins with the assumption that the restraints are restrictive to begin with.  Absent evidence that the restraints have reduced output, proof that they in fact overcome a market failure that would have manifested as lower pre-restraint prices undermines any presumption that such restraints are restrictive in the first place.

* Ball Professor of Law and Co-Director, Center for the Study of Law and Markets, William & Mary Law School. The author thanks the editors of the Wake Forest Law Review, both print and online editions, for their thoughtful edits and diligent efforts.

      [1].   468 U.S. 85 (1984).

      [2].   Infra Part III.

      [3].   Id.

      [4].   See Alan J. Meese, Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine, 56 Wake Forest L. Rev. (forthcoming Dec. 2021).

      [5].   See Areeda, infra note 78, at 37–38.

      [6].   See infra nn.96–98. 

      [7].   958 F.3d 1239 (9th Cir.), cert. granted sub nom., 141 S.Ct. 1231 (2020) (mem.).

      [8].   15 U.S.C. § 1.

      [9].   221 U.S. 1 (1911).

     [10].   Id. at 51.

     [11].   Id. at 52 (listing three “evils which led to the public outcry against monopolies”).

     [12].   Cont’l T.V. v. GTE Sylvania, Inc., 433 U.S. 36, 49 n.15 (1977).

     [13].   See generally N. Pac. Ry. Co. v. United States (“NPR“), 356 U.S. 1 (1958).

     [14].   Id. at 5.

     [15].   Id.; see also Sylvania, 433 U.S. at 50 (quoting NPR with approval).

     [16].   Alan J. Meese, Price Theory, Competition, and the Rule of Reason, 2003 U. Ill. L. Rev. 77, 94–95 (2003) (recognizing that the Court defines “anticompetitive” broadly).

     [17].   Id. at 94 (explaining that the Court has “equated the term [‘competition’] with ‘rivalry’ for the purpose of per se analysis, with the result that any coordination of previously independent activity is anticompetitive”).

     [18].   Id. at 95.

     [19].   Id. at 96.

     [20].   See id. at 96–98.

     [21].   See Robert H. Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division II, 75 Yale L. J. 373, 383 (1966) (distinguishing between antitrust’s treatment of naked price fixing and “close-knit combinations” such as partnerships on this basis); Richard A. Givens, Affirmative Benefits to Industrial Mergers and Section 7 of the Clayton Act, 36 Ind. L. J. 51, 52–53 (1960) (concluding that “‘lack of any redeeming virtue’ is the chief distinction between those kinds of loose-knit combinations which are held in unreasonable restraint of trade in and of themselves and the close-knit combinations”); Alan J. Meese, In Praise of All or Nothing Dichotomous Categories: Why Antitrust Law Should Reject the Quick Look, 104 Geo. L.J. 835, 849–51 (2016) (explaining the NPR standard’s disparate treatment of naked price fixing and the formation of partnerships).

     [22].   Bork, supra note 21, at 383.

     [23].   See generally United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1898) (articulating the ancillary restraints doctrine sixty years before NPR).

     [24].   Compare N. Pac. Ry. Co. v. United States (“NPR”), 356 U.S. 1, 5 (stating that “[the] principle of per se unreasonableness . . . makes the type of restraints proscribed by the Sherman Act more certain . . . .”), with Addyston Pipe, 85 F. 271 at 282–83 (illustrating that the “very statement of the rule” implies that the court must determine whether “the contract [at issue is] one in which there is a main purpose, to which the covenant in restraint of trade is merely ancillary”).

     [25].   See Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 344 (1982) (explaining that restraints are condemned as unlawful per se “[o]nce experience with a particular kind of restraint enables the Court to predict with confidence that the Rule of Reason will condemn it”).

     [26].   See FTC v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411, 435 n.18 (1990) (“Very few firms that lack power to affect market prices will be sufficiently foolish to enter into conspiracies to fix prices.”) (quoting R. Bork, The Antitrust Paradox, 269 (1978)); Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 221 (D.C. Cir. 1986) (Bork, J., for the court).

     [27].   Areeda, infra note 78, at 21–22.

     [28].   See Oliver E. Williamson, Economic Institutions of Capitalism, 7 (1985) (“The prevailing orientation toward economic organization [during this period] was that technological features of firm and market organization were determinative.”); see also Meese, supra note 16, at 124–32 (documenting how the Supreme Court relied upon the applied price theory tradition that Williamson discusses when expanding the scope of the per se rule).

     [29].   433 U.S. 36 (1977).

     [30].   Id. at 55 (explaining how non-standard agreements could ensure production of services retailers might not provide “in a purely competitive situation”).

     [31].   707 F.2d 1147 (10th Cir. 1983), aff’d, 468 U.S. 85 (1984).

     [32].   Id. at 1149–50.

     [33].   Id.

     [34].   United States v. Topco Assocs., Inc., 405 U.S. 596, 607–12 (1972).

     [35].   Bd. of Regents of the Univ. of Okla., 707 F.2d at 1153–54.

     [36].   Id.

     [37].   Brief for Respondents at 23, Nat. Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984) (No. 83-271), 1984 WL 1036477, *23.

     [38].   NCAA, 468 U.S. at 101.

     [39].   Id. at 102.

     [40].   958 F.3d 1239 (9th Cir. 2020).

     [41].   See, e.g., id. at 1256; O’Bannon v. NCAA, 802 F.3d 1049, 1069–1070 (9th Cir. 2015); Law v. NCAA, 134 F.3d 1010, 1017–1020 (10th Cir. 1998).

     [42].   See Herbert Hovenkamp, The NCAA and the Rule of Reason, 52 Rev. Indus. Org. 323, 324–26 (2017) (reading NCAA in this manner); see also Alan J. Meese, Competition and Market Failure in the Antitrust Jurisprudence of Justice Stevens, 74 Fordham L. Rev. 1775, 1791–92 (2006).

     [43].   See, e.g., Topco, 405 U.S. at 608–12; see also NCAA, 468 U.S. at 99 & nn.18–19 (citing Topco with approval).

     [44].   NCAA, 468 U.S. at 101–02.

     [45].   Id. at 103 (“[A] restraint in a limited aspect of a market may actually enhance market-wide competition.”).

     [46].   Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 226 (D.C. Cir. 1986); Polk Bros, Inc. v. Forest City Enters., Inc., 776 F.2d 185, 188–89 (7th Cir. 1985).

     [47].   See, e.g., O’Bannon, 802 F.3d at 1057.

     [48].   See Alan J. Meese, Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine, 56 Wake Forest L. Rev. (forthcoming Dec. 2021).

     [49].   Rothery Storage, 792 F.2d at 224 (“To be ancillary, and hence exempt from the per se rule, an agreement eliminating competition must . . . serve[] to make the main transaction more effective in accomplishing its purpose. Of course, the restraint imposed must be related to the efficiency sought to be achieved.”) (emphasis added).

     [50].   See, e.g., In re Brunswick Corp., 94 F.T.C. 1174, 1275 (1979) (Pitofsky, Commissioner), aff’d 657 F. 2d 971 (8th Cir. 1981); see also Polygram Holding v. FTC, 416 F.3d 29 (D.C. Cir. 2004) (holding that a restraint that accompanied an otherwise legitimate venture could produce no cognizable benefits).

     [51].   See, e.g., Polygram Holding, 416 F.3d at 38–39.

     [52].   See Bork, supra note 21, at 380; see also Polk Bros., 776 F.2d at 189 (“A court must ask whether an agreement promoted enterprise and productivity at the time it was adopted. If it arguably did, then the court must apply the Rule of Reason . . . .”) (emphasis added).

     [53].   Bork, supra note 21, at 383 (emphasis added).

     [54].   Id.

     [55].   See Am. Needle, Inc. v. NFL, 560 U.S. 183, 197–200 (2010) (treating conduct of a corporation jointly owned by thirty-two NFL teams as concerted action because agreement joined “independent centers of decision making”); Rothery Storage, 792 F.2d at 214–15 (analogizing challenged restraints to those challenged in Topco and NCAA and concluding that all such restraints were concerted action).

     [56].   Bork, supra note 21, at 382–84; id. at 384 (treating non-ancillary restraints as unlawful per se).  It should not matter that restraints that accompany a joint venture “are likely to survive the Rule of Reason” in the context of sports leagues.  See Am. Needle, 560 U.S. at 203.  This is equally true with respect to restraints that accompany other joint ventures.

     [57].   Professional Engineers, 435 U.S. at 692–93 (explaining that the per se rule and full-blown Rule of Reason scrutiny are “two complimentary categories of Rule of Reason analysis” and that “[i]n either event, the purpose of the analysis is to form a judgment about the competitive significance of the restraint”).

     [58].   See Maricopa Cnty. Med. Soc., 457 U.S. at 344.

     [59].   See Realcomp II, Ltd. v. FTC, 635 F.3d 815, 827 (6th Cir. 2011) (describing these alternative means of establishing a prima facie case).

     [60].   Michael A. Carrier, The Rule of Reason: An Empirical Update for the 21st Century, 16 Geo. Mason L. Rev. 827, 827–29; 837 (2009).

     [61].   This impact will also alter the ratio of harmful to beneficial restraints in this category.

     [62].   Alston, 958 F.3d at 1256 (invoking and applying Rule of Reason’s three-part framework).

     [63].   NCAA opined that the defendants there bore a “heavy burden of establishing an affirmative defense[.]” Nat. Collegiate Athletic Ass’n v. Bd. Of Regents of the Univ. of Okla., 468 U.S. 85, 113 (1984).  Such an approach makes sense with respect to explicit price and/or output restraints that apparently cannot produce redeeming virtues.  However, lower courts, including Alston, have generalized this language, applying this standard to restraints that would survive per se condemnation under the NPR standard because they may produce redeeming virtues.  See Alston, 958 F.3d at 1257 (describing the NCAA’s “‘heavy burden’” of “‘competitively justify[ing]’” its undisputed “‘deviation from the operations of a free market’” under the Rule of Reason) (quoting NCAA, 468 U.S. at 113)).  There is, however, no warrant for imposing upon defendants more than the traditional burden of production when a restraint properly survives per se condemnation under the NPR standard.  See Meese, supra note 16, at 108 n.156 (collecting authorities characterizing defendants’ burden as a burden of production).  Thus, exemption of the naked restraints before it from per se condemnation resulted in a misleading and non-generalizable pronouncement regarding this aspect of Rule of Reason analysis.

     [64].   The exact nature of this balancing, of course, will depend on the welfare standard that the court selects.  See generally Roger D. Blair & D. Daniel Sokol, The Rule of Reason and the Goals of Antitrust: An Economic Approach, 78 Antitrust L.J. 471 (2012).

     [65].   Cf. Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Trade-offs, 58 Amer. Econ. Rev. 18 (1968). See also Law, 134 F.3d at 1017 (holding that, after plaintiffs make out a prima facie case, “[t]he inquiry then shifts to an evaluation of whether the procompetitive virtues of the alleged wrongful conduct justifies the otherwise anticompetitive impacts” (emphasis added)).

     [66].   Alan J. Meese, Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust, 1 J. Comp. L. & Econ. 21 (2005).

     [67].   See, e.g., Leegin Creative Leather Prod., Inc. v. PSKS, Inc., 551 U.S. 877, 878, 882–85, 889–90, 893, 896–98 (2007) (holding that higher retail prices resulting from additional promotion are not antitrust harm). 

     [68].   Meese, supra note 16, at 100–01.

     [69].   See Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Tradeoffs, 58 Amer. Econ. Rev. 18 (1968).

     [70].   See Thomas G. Krattenmaker & Steven Salop, Anticompetitive Exclusion: Raising Rivals’ Costs to Achieve Power Over Price, 96 Yale L. J. 209, 278, 278 nn.216–17 (1986) (explaining that courts often treat proof of efficiencies as reason to scrutinize more carefully claims that the restraint produced harms in the first place).

     [71].   See Meese, supra note 16, at 163–65. 

     [72].   See NCAA, 468 U.S. at 107–08.

     [73].   See id. at 104–108.  While the Court also claimed that the restraints had reduced output, it made no effort to adjust that reduction for the quality of the remaining games. Id.

     [74].   Brief for Petitioner at 33–34, NCAA, 468 U.S. 85 (1984) (No. 83-271).

     [75].   See NCAA, 468 U.S. at 111–113; see also id. at 115, 115 n.55 (resting the rejection of one of the defendants’ justifications on finding that the defendants possessed market power).

     [76].   435 U.S. 679 (1978).

     [77].   NCAA, 468 U.S. at 109 (quoting Professional Engineers, 435 U.S. at 692).

     [78].   See id. at 109 n.39 (quoting Phillip Areeda, The “Rule of Reason” in Antitrust Analysis: General Issues 37–38 (Federal Judicial Center, June 1981) (parenthetical omitted), (last visited June 9, 2021).

     [79].   See Meese, supra note 42, at 1780, 1789–91, 1800 (reading Professional Engineers in this manner).

     [80].   Id. at 1801–02.

     [81].   See, e.g., Polygram Holding v. FTC, 416 F.3d 29, 32–33, 36–37 (D.C. Cir. 2005) (detailing and applying this approach).

     [82].   See Meese, supra note 21, at 873.

     [83].   See, e.g., Polygram, 416 F.3d at 35 (detailing this approach).

     [84].   Transcript of Oral Argument at 42, NCAA v. Alston, No. 20-512 (Mar. 31, 2021).

     [85].   See Andrew I. Gavil, Moving Beyond Caricature and Characterization: The Modern Rule of Reason in Practice, 85 S. Cal. L. Rev. 733, 777–81 (2012) (endorsing application of the Quick Look to restraints regardless of how they avoid per se condemnation); Meese, supra note 21, at 866 n.165 (collecting numerous decisions asking whether numerous restraints, including exclusive dealing contracts, are “inherently suspect”).

     [86].   See Meese, supra note 21, at 864–65 (describing plaintiffs’ strong incentives to convince tribunals that challenged restraints are “inherently suspect” so as to avoid almost certain failure to establish a prima facie case under standard Rule of Reason analysis); id. at 863 (explaining that the first step in Rule of Reason analysis is to ask whether a restraint is inherently suspect).

     [87].   Id. at 866 n.165 (collecting numerous decisions evaluating and (nearly) always rejecting plaintiff’s claim that restraint was “inherently suspect”).

     [88].   See id. at 876–80.

     [89].   See Alan J. Meese, The Rule of Reason’s Prima Facie Case: Did Harvard Get it Right?, 168 U. Penn. L. Rev. Online (2021) (forthcoming).

     [90].   See Meese, supra note 21, at 856 & n.104 (explaining why this language was dicta).

     [91].   See Areeda, supra note 78, at 37–38.

     [92].   See supra note 89 and accompanying text.

     [93].   See Cal. Dental Ass’n v. FTC, 526 U.S. 756, 770 (1999).

     [94].   See Meese, supra note 21, at 856 & n.104 (explaining that Supreme Court decisions endorsing or implying a Quick Look approach are dicta); see also, e.g., Cal. Dental Ass’n, 526 U.S. at 770–81 (rejecting application of the Quick Look to the case before it).

     [95].   See generally Neal Devins & Alan J. Meese, Judicial Review and Nongeneralizable Cases, 32 Fla. State L. Rev. 323 (2005) (contending that precedents adopted in cases with idiosyncratic facts may not reflect appropriate consideration of factors that should inform the resulting rule).

     [96].   See Deppe v. NCAA, 893 F.3d 498, 501, 503 (7th Cir. 2018); Agnew v. NCAA, 683 F.3d 328, 342–43 (7th Cir. 2012).  But see O’Bannon v. NCAA, 802 F.3d 1049, 1063–64 (9th Cir. 2015) (rejecting this approach and assessing restrictions under the Rule of Reason).

     [97].   560 U.S. 183 (2010).

     [98].   Id. at 203; see also Agnew, 683 F.3d at 341 (quoting Am. Needle, 560 U.S. at 203).

     [99].   Petition for Writ of Certiorari, at 19–20, 24–25, Nat. Collegiate Athletic Ass’n v. Alston, No. 20-512 (Oct. 2020) (invoking Agnew and Deppe); see also Transcript, supra note 84, at 7 (NCAA disclaiming reliance on the term Quick Look).  Of course, the NCAA is seeking more than what the Quick Look provides plaintiffs.

   [100].   See Deppe, 893 F.3d at 501–502 (holding that courts should dismiss challenges to such restraints on the pleadings without opportunity for rebuttal); Agnew, 683 F. 3d at 343, n.6 (same); see also Michael H. v. Gerald D., 491 U.S. 110, 119 (1989) (plurality opinion) (explaining that an irrebuttable presumption is really a substantive rule).

   [101].   See infra notes 122–28 and accompanying text.

   [102].   Transcript, supra note 84, at 33.

   [103].   Cf. Meese, supra note 21, at 873 (describing assertions by proponents of the “Quick Look” Rule of Reason analysis that this approach could soften an over-inclusive per se rule).

   [104].   See id. at 873–74 (explaining how more selective application of the per se rule eliminated any putative need for “safety valve” function of the Quick Look).

   [105].   See Brief for Petitioner at 9–11, 18–21, Nat. Collegiate Athletic Ass’n v. Alston, No. 20-512 (Mar. 31, 2021).

   [106].   Of course, under a straightforward application of the NPR standard or ancillary restraints doctrine, courts would have asked and answered this question earlier in the process of assessing these restraints.

   [107].   See Transcript, supra note 84, at 10 (Thomas, J., asking question).

   [108].   See generally Law v. Nat’l Collegiate Athletics Ass’n, 134 F. 3d 1010 (10th Cir. 1998).

   [109].   Transcript, supra note 84, at 42.

   [110].   See generally Nat’l Collegiate Athletics Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984).

   [111].   Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 58 (1911).

   [112].   Cont‘l T.V. v. GTE Sylvania, Inc., 433 U.S. 36, 55 (1977).

   [113].   Id. at 54.

   [114].   NCAA, 468 U.S. at 103.

   [115].   Standard Oil, 221 U.S. at 55, 63.

   [116].   The analysis propounded by this paragraph does not depend upon the provision of such compensation.

   [117].   See supra notes 13–18 and accompanying text.

   [118].   Transcript, supra note 84, at 50–51 (“[O]f course, we’re not challenging any restrictions or rules regarding that they be students.”).

   [119].   Id. at 50 (articulating the plaintiffs’ contention that the main distinction between professional and collegiate athletics is that the latter is exclusively comprised of students).

   [120].   See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 958 F.3d 1239, 1248–50, 1257–58, 1260, 1268 (9th Cir. 2020).

   [121].   See id. at 1256–57 (describing the district court’s finding that elite student-athletes are “forced to accept . . . whatever compensation is offered to them”).  If this is truly the case, then one might ask why the NCAA does not replicate the approach taken by the Ivy League, that is, ban members from providing any athletic financial aid. See Prospective Athlete Information, The Ivy League, (last visited June 9, 2021).

   [122].   See, e.g., Alston, 958 F.3d at 1246–47, 1256–57, 1260.

   [123].   See id. at 1254, 1257 (“The NCAA does, however, quarrel with the district court’s analysis at the Rule of Reason’s second step[.]”).

   [124].   See id. at 1254–55, 1258 (“Not paying student-athletes ‘unlimited payments unrelated to education, akin to salaries seen in professional sports leagues’ is what makes them ‘amateurs.’” (quoting In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 375 F. Supp. 3d 1058, 1083 (N.D. Cal. 2019))).

   [125].   The Ivy League, which provides no athletic scholarships, provides an example of such horizontal voluntary integration that would be difficult to attribute to market power.  Indeed, the Ninth Circuit in Alston apparently assumed that individual conferences could, without market power, impose restraints identical to those the court invalidated. See Alston, 958 F.3d at 1256–57; see also Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 221 (D.C. Cir. 1986) (stating that absence of market power established that defendants adopted challenged practice to “make the conduct of their business more effective”); Broad. Music, Inc. v. Columbia Broad. Sys., 441 U.S. 1, 22 & n.39 (1979) (highlighting the fact that firms without market power had adopted a practice similar to challenged restraint, thereby suggesting that the practice might be reasonable).

   [126].   Cf. Law v. Nat’l Collegiate Athletic Ass’n, 134 F. 3d 1010, 1021–24 (10th Cir. 1998) (describing and rejecting different purported redeeming virtues that supposedly justified limits on the salaries of so-called “restricted earnings coaches”).

   [127].   See supra Subpart V.D.

   [128].   Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 103 (1984) (“Respondents concede that the great majority of the NCAA’s regulations enhance competition among member institutions.”).

   [129].   See, e.g., Alan J. Meese, Farewell to the Quick Look: Redefining the Scope and Content of the Rule of Reason, 68 Antitrust L. J. 461, 488–89 & nn.113–14 (2000); see also Cal. Dental Ass’n v. FTC, 526 U.S. 756, 781 (1999) (suggesting that courts can ultimately dispense with full-blown Rule of Reason assessment “if rule-of-reason analyses in case after case reach identical conclusions”).

   [130].   See Meese, supra note 21, at 863–66.

   [131].   See supra Subpart V.D.

   [132].   See NCAA, 468 U.S. at 104–07 (invoking the finding that challenged restraints resulted in higher prices and reduced output compared to a non-restraint baseline to establish prima facie case).

   [133].   See supra text accompanying notes 62–71.

   [134].   See supra notes 66–68 and accompanying text.

   [135].   See Meese, supra note 16, at 149–52.

   [136].   Id.; see also         Alan J. Meese, Intrabrand Restraints and the Theory of the Firm, 83 N.C. L. Rev. 5, 69 & nn.312–14 (2004) (collecting authorities demonstrating that franchising contracts are horizontal).

   [137].   See In re. Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 958 F.3d 1239, 1248, 1270 (9th Cir. 2020) (reporting that district court adopted this market definition at “the parties’ request”), cert granted sub nom. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 1231 (2020) (mem.).

   [138].   See Alan J. Meese, Monopolization, Exclusion, and the Theory of the Firm, 89 Minn. L. Rev. 743, 845 (2005) (explaining that some “exclusionary agreements can overcome market failures” and result in “significant cognizable benefits”).

   [139].   See Hovenkamp, supra note 42, at 324 (“The plaintiff generally makes out a prima facie case by finding an anticompetitive effect, which means either a restraint that tends to reduce output or that excludes a significant firm or firms.”).

   [140].   See supra Subpart V.B.

By: Ashley Oldfield (Wake Forest School of Law alumnus)

In Niz-Chavez v. Garland,[1] the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1).[2] In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.[3]

In Pereira, the Court answered a “simple, but important, question of statutory interpretation”: does a putative “notice to appear” that does not specify the time and place of a removal hearing trigger the stop-time rule with regard to cancellation of removal?[4] The Court’s answer? A resounding “no.”[5] In order to trigger the stop time rule under § 1229b(d)(1), a notice must include all of the statutorily required information specified in § 1229(a)(1), including the time and place of the removal proceedings. Absent that information, such a notice is not actually a “notice to appear” at all.[6]

This commonsense decision, however, created an uproar in the immigration world. Immigration advocates saw in Pereira an opportunity to challenge an immigration court’s jurisdiction.[7] They argued that since jurisdiction only vests with the immigration court when a valid charging document (e.g., a notice to appear) is filed, and a notice to appear lacking time-and-date information is not valid, then the filing of an invalid notice to appear fails to vest jurisdiction with the immigration court.[8] Relying on this argument, immigration advocates moved to terminate active removal proceedings, challenge in absentia removal orders, and dismiss illegal reentry charges.[9]

Unsurprisingly, the Board of Immigration Appeals (the “BIA”) rejected this argument. In Matter of Bermudez-Cota,[10] the BIA distinguished Pereira, reasoning that it did not apply where, as in the case at hand, the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” such that he was “sufficiently informed to attend his hearings.”[11] The BIA also insisted that Pereira’s holding was “narrow” and thus only applied when the stop-time rule was at issue.[12] Furthermore, the BIA found support in the regulation applicable to vesting jurisdiction, which did not mandate time-and-date information.[13] Finally, relying on pre-Pereira decisions from the Fifth, Seventh, Eighth, and Ninth Circuits, the BIA determined “that a two-step notice process is sufficient to meet the statutory notice requirements” and “vest[] an Immigration Judge with jurisdiction over the removal proceedings.”[14] Since Bermudez-Cota, the majority of circuits have also rejected Pereira-based jurisdictional challenges, albeit for varying reasons.[15] Furthermore, in Matter of Mendoza-Hernandez,[16] the BIA, again distinguishing Pereira, expressly held that service of a second document with time-and-place information satisfies notice requirements and triggers the stop-time rule.[17] 

In Niz-Chavez, the Court, in an opinion written by Justice Neil Gorsuch, addressed the two-step notice process head-on. There, the government had sought to initiate removal proceedings against Mr. Niz-Chavez by serving him with a document entitled “Notice to Appear,” but which lacked the time and place for the hearing.[18] The government later sent Mr. Niz-Chavez a second document that included the previously missing information, and he appeared at his hearing and was found removable.[19] Following the Court’s decision in Pereira, Mr. Niz-Chavez asserted that the notices he received were insufficient to trigger the stop-time rule, and thus, having now accrued the required period of continuous presence, he should be eligible for cancellation of removal.[20] The government responded that the second document completed the notice to appear and consequently triggered the stop-time rule.[21]

The Court, in a 6:3 decision, rejected this argument, holding that a notice to appear sufficient to trigger the stop-time rule is a single document, which must include all of the information listed in § 1229(a)(1).[22] Much of the Court’s decision hinged on the statute’s use of the indefinite article “a” before the word “notice.”[23] While the government and the dissent argued that “a” could precede “a single thing that can be delivered in multiple installments,”[24] the Court concluded that Congress’s use of “a” here indicated a single notice delivered at a discrete time, similarly to how Congress used indefinite articles before other case-initiating pleadings, such as a civil complaint or an indictment, which are never delivered by installment.[25]

The Court then found support for the single notice requirement in several related statutory provisions: 8 U.S.C. § 1229(e)(1), which provides “special rules the government must follow when it seizes [a noncitizen] at a sensitive location”; 8 U.S.C. § 1229a(b)(7), which speaks to a noncitizen’s ineligibility for relief under certain circumstances; and 8 U.S.C. § 1229(a)(2), which applies when the government wishes to change the noncitizen’s hearing date.[26] Each of these provisions refers to a notice of some type, pairs an article with a singular noun, and seems to contemplate a discrete document.[27]

Turning next to the statute’s history for support, the Court noted that under a previous law, removal proceedings were initiated by “an order to show cause” and that the law expressly permitted the government to specify the time and place for the hearing “in the order to show cause or otherwise.”[28] Congress’s decision not to include “or otherwise” in § 1229(a)(1) indicated that it intended for the government to no longer have the leeway to provide time and place information in a later document, but must instead include it in the notice to appear.[29]

Finally, the Court addressed, with little sympathy, the policy arguments advanced by both the government and the dissent. The Court rejected the idea that the administrative inconvenience of including time and place information in a notice to appear justified allowing the government “to send a person who . . .  may be unfamiliar with English and the habits of American bureaucracies [] a series of letters[] . . . over the course of weeks, months, maybe years, each containing a new morsel of vital information.”[30] As for the dissent’s speculations regarding disadvantages to noncitizens, the Court found these both off the mark and irrelevant.[31] In short, neither administrative inconvenience nor hypothetical disadvantages warranted disregarding the plain statutory command.[32]

Where does this decision leave noncitizens seeking to use Pereira to challenge an immigration court’s jurisdiction? Although the Court did not directly address jurisdiction issues in Niz-Chavez,[33] the decision upends the BIA’s rationale for rejecting Pereira-based jurisdiction arguments.

First, the BIA can no longer argue that Pereira does not apply where the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” because those are the precise facts found in Niz-Chavez.[34] Second, contrary to the BIA’s assertion that Pereira’s holding was “narrow,” the Court indicated that its holding has implications outside of the stop-time rule, explaining that a notice to appear “serves as the basis for commencing a grave legal proceeding”[35] and that references to a “notice to appear” in other statutory provisions refer to the same “specific document in which the government can (and must) ‘include’ the required certification.”[36] Third, the Court explained that “pleas of administrative inconvenience and self-serving regulations never ‘justify departing from the statute’s clear text.’”[37] Finally, Niz-Chavez completely forecloses the two-step notice process championed by the BIA, making crystal clear that a “notice to appear” is a single document containing all of the information listed in § 1229(a)(1).[38]

Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction. After all, “if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”[39]

[1] 2021 U.S. LEXIS 2232 (2021).

[2] Id. at *7–8. This “seemingly simple rule has generated outsized controversy” because service of a notice to appear on a noncitizen triggers the stop-time rule, which stops the clock on a noncitizen’s period of continuous presence in the country. Id. at *7 (citing 8 U.S.C. § 1229b(d)(1)). An otherwise removable noncitizen must accrue ten years of continuous presence in the U.S. in order to qualify for cancellation of removal and remain in the country. Id. at *6–7 (citing 8 U.S.C. § 1229b(b)(1)). Thus, what qualifies as a notice to appear sufficient to trigger the stop-time rule may have life-altering implications for some noncitizens.

[3] 138 S. Ct. 2105 (2018).

[4] Id. at 2113. By 2018, “almost 100 percent” of notices to appear served in the previous three years omitted time-and-date information. Id. at 2111. The government, however, asserted that these initial notices were sufficient to trigger the stop-time rule.

[5] Id. at 2110.

[6] Id.

[7] See, e.g., Kit Johnson, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, 3 Colum. Hum. Trs. L. Rev. Online 1, 2 (2018).

[8] Id. at 2–3.

[9] See generally Dan Kesselbrenner et al., Nat’l Immigration Project of the Nat’l Lawyers Guild & the Immigrant Def. Project, Practice Advisory: Challenging the Validity of Notices to Appear Lacking Time-and-Place Information (2018). For a discussion of Pereira-based challenges to indictments for illegal reentry after deportation, see Ashley Oldfield, Note, Pereira v. Sessions: The Supreme Court’s Call for Common Sense, 55 Wake Forest L. Rev. 415 (2020).

[10] 27 I. & N. Dec. 441 (B.I.A. 2018). 

[11] Id. at 443. In Pereira, the noncitizen did not receive the notice of hearing and was ordered deported in absentia. Pereira, 128 S. Ct. at 2112.

[12] 27 I. & N. Dec. at 443.

[13] Id. at 445.

[14] Id. at 447.

[15] See Goncalves Pontes v. Barr, 938 F.3d 1, 6 (1st Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 105 (2d Cir. 2019), cert. denied, 140 S. Ct. 954 (2020); Nkomo v. Attorney Gen. of the U.S., 930 F.3d 129, 133–34 (3d Cir. 2019), cert. denied, 140 S. Ct. 2740 (2020); United States v. Cortez, 930 F.3d 350, 362–65 (4th Cir. 2019); Pierre-Paul v. Barr, 930 F.3d 684, 690–91 (5th Cir. 2019), cert. denied, 2020 U.S. LEXIS 2490 (2020); Hernandez-Perez v. Whitaker, 911 F.3d 305, 311–15 (6th Cir. 2018); Ortiz-Santiago v. Barr, 924 F.3d 956, 962–64 (7th Cir. 2019), reh’g denied; Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019), cert. denied, 140 S. Ct. 1106 (2020); Martinez-Perez v. Barr, 947 F.3d 1273, 1278–79 (10th Cir. 2020); Perez-Sanchez v. U.S. Attorney Gen., 935 F.3d 1148, 1154 (11th Cir. 2019).

[16] 27 I. & N. Dec. 520 (B.I.A. 2019).

[17] Id. at 535.

[18] Niz-Chavez v. Garland, 2021 U.S. LEXIS 2232, at *9 (2021) (No. 19-863).

[19] Id. at *29–30 (Kavanaugh, J., dissenting).

[20] Id. at *31.

[21] Id.

[22] Id. at *27 (majority opinion).

[23] Id. at *10–17.

[24] Id. at *40 (Kavanaugh, J., dissenting).

[25] Id. at *13–16 (majority opinion).

[26] Id. at *17–20.

[27] Id.

[28] Id. at *20.

[29] Id.

[30] Id. at *23–25.

[31] Id. at *25–27.

[32] Id. at *26.

[33] The Court’s failure to address jurisdiction does not indicate that it accepted the immigration court’s jurisdiction. See Oldfield, supra note 10, at 436–37.

[34] See Niz-Chavez, 2021 U.S. LEXIS 2232, at *29–30 (Kavanaugh, J., dissenting).

[35] Id. at *15 (majority opinion).

[36] Id. at *18.

[37] Id. at *23 (citing Pereira v. Sessions, 138 S. Ct. 2105, 2109 (2018)).

[38] See generally Niz-Chavez, 2021 U.S. LEXIS 2232.

[39] Id. at *27.

File:15-23-0154, Supreme Court - panoramio.jpg - Wikimedia Commons

Doron M. Kalir*

11 Wake Forest L. Rev. Online 42

In the short time since its release, Bostock v. Clayton County[1] has well-earned its self-praise as “simple and momentous.”[2]  The opinion, which holds that Title VII of the Civil Rights Act of 1964 applies to homosexuals and transgender persons in the workplace, instructs employers nationwide that discrimination against LGBTQ employees solely “because of [their] sex” is no longer legal.[3]

The Court’s 6:3 opinion is unique in several ways. For one, its author—Justice Neil Gorsuch—was not known for his affinity for LGBTQ rights.[4]  For another, it was joined by Chief Justice Roberts, a first for a conservative who was previously reluctant to expand LGBTQ rights.[5]  Most importantly, while the Court was split as to the result, all three opinions claimed to have relied on the same statutory interpretation theory—textualism.  That claim was not entirely persuasive, however, as the three opinions not only differed markedly but were contradictory at times.  Surely such diversity of conclusions, all allegedly stemming from the same interpretive theory applied to the same statutory language, would lead to some form of intramural textualist controversy.[6] 

And controversy it was.  In his dissenting opinion, Justice Alito (joined by Justice Thomas) castigated the majority opinion as nothing short of “a pirate ship . . . sail[ing] under a textualist flag . . . [but] actually represent[ing] . . . a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[7]  Justice Kavanaugh,  in his dissent, claimed that the majority opinion took a “literalist,” rather than a textualist, approach.[8]  In his words, this approach “simply split statutory phrases into their component words, look[ed] up each in a dictionary, and then mechanically put them together again.”[9]  He, too, invoked Justice Scalia’s real interpretive method as the complete opposite of the majority’s opinion, accusing the Court of “miss[ing] the forest for the trees.”[10]

This Article would leave others to resolve the “holy-grail” question of which opinion—if any—best represents Justice Scalia’s “true legacy.”[11]  The aim of this short Article is entirely different: The Bostock majority opinion, it argues, was so convincing not because it was the product of a particular interpretive theory, but because it was a product of formal logic.  The reason both Chief Justice Roberts (who never before agreed to grant meaningful rights to LGBTQ members) and Justice Ruth Bader Ginsburg (whose life mission was to guarantee equality in the workplace to all) have joined the opinion in full was precisely because it was built on the sound foundations of deductive reasoning, rather than the more dubious ones of “textualism.”

 Justice Gorsuch’s opinion, in fact, is written more as an exercise in formal logic than a typical legal opinion.[12]  While paying lip service to textualism, the opinion actually erects a well-reasoned logical structure—complete with sound definitions, logical model, and several hypothetical and actual applications.  Indeed, so solidly built and so well-defended is that structure that neither an institutional conservative nor a liberal icon saw reason to add a single brick to it.  Even more, the attempts by both Justice Alito and Justice Kavanaugh to undermine its foundations (in their dissents) merely emphasize—rather than weaken—its stability.  In short, Justice Gorsuch wrote—in the words of Justice Kagan honoring Justice Scalia—“with the elegance of a mathematical proof.”[13] 

This short Article proceeds as follows: Part I presents the assumptions and definitions that guided Justice Gorsuch in building his Model.  Part II discusses the theorem at the heart of the Model, and its main logical strength.  Part III analyzes eight hypotheticals appearing in the opinion—some in response to questions presented during oral argument—and their relation to the Model.  Part IV applies the Model to three previous Court cases dealing with Title VII discrimination.  Part V applies the Model to the cases at hand.  Finally, Part VI will claim that the logical approach—as opposed to one grounded in politically-identified ideology—is much superior to authoring judicial opinions in general, and especially those expanding statutory and constitutional rights. 

  1. Assumptions & Definitions

Title VII of the Civil Rights Act of 1964 states, in relevant part:

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.[14]

The question presented in Bostock was whether this language outlaws workplace discrimination against LGBTQ employees “simply for being homosexual or transgender.”[15]

Justice Gorsuch opens his opinion with a positive conclusion: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undistinguishable role in the decision, exactly what Title VII forbids.”[16] 

The Justice then reverse engineers the process that led him to that conclusion.  While not saying so specifically, he relies entirely on a formal logic model (“Model”).  Such Model begins, naturally, with formal assumptions and definitions later used in the Model.  Here is a formal presentation of these assumptions:

Let α be “sex”—which is defined for the purposes of this Model as the “biological distinctions between male and female.”[17]

Let ~ α (“not α[18]) refer to a more expansive definition of sex, including “at least some norms concerning gender identity and sexual orientation.”[19]

Let ß be “because of”—which is defined here as a “but-for” test: “[A] but-for test directs us to change one thing at a time and see if the outcome changes.  If it does, we have found a but-for cause.”[20]  For purposes of Title VII, this standard means that “a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.  So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.”[21]  Thus, sex may not be “the only factor, or maybe even the main factor [in the decision to discriminate], but [may still constitute] one but-for cause,” which is enough to satisfy the definition.[22]

Let ~ ß (“not ß”) refer to either “solely” or “primarily because of”—two more restricting standards favored by other acts of Congress but avoided here: “If anything, Congress has moved in the opposite direction . . . [toward] a more forgiving standard.”[23]

Let γ be “discriminate against any individual [employee]”—which is defined here as “treating that individual [employee] worse than others who are similarly situated . . . intentionally.”[24]  It should be noted the label, title, or reason given to such discriminatory practice is not relevant for purposes of this definition; what matters is the finding of a discriminatory practice.[25]

Let ~ γ (“not γ”) refer to discrimination against groups of people, as opposed to individual employees.  Indeed, Justice Gorsuch asserts the Act “tells us three times—including immediately after the words ‘discriminate against’—that our focus should be on individuals.”[26]  And, obviously, “individuals are distinguished from a class, species, or collection.”[27]

II. The Theorem

Based on the previous assumptions, Justice Gorsuch arrives at the following conclusion: “An employer violates Title VII when it intentionally fires an individual employee” (γ), and that decision is “based in part” (ß) “on sex” (α).[28]  In more formal terms, a violation (V) of Title VII occurs whenever a court finds all three components (γ, ß, and α) present, such that:

If γ & ß & αthen V (Major Premise)

Thus, “if the employer intentionally relies in part [(ß)] on an individual employee’s sex [(α)] when deciding to discharge the employee” (γ), then Title VII is violated (V).[29]

So far, the proposition seems unremarkable.  All previous Title VII cases would rest comfortably on these—or similar—assumptions.  It is then that Justice Gorsuch adds the logical lynchpin on which his entire case—and logical edifice—relies: For purposes of the Act, Justice Gorsuch holds discrimination based on sex is equal to (and identical with) discrimination based on sexual orientation or sexual identity.[30]

The reason for that is simple: “[I]t is impossible to discriminate against a person for being a homosexual or transgender[31] without discriminating against that person based on sex.”[32]  Indeed, “homosexuality and transgender status are inextricably bound up with sex.”[33]  Therefore, “discrimination on [homosexuality and transgender] grounds requires an employer to intentionally treat individual employees differently because of sex.”[34]  Thus, even if the employer’s “ultimate goal might be to discriminate [solely] on the basis of sexual orientation,” in order to achieve that goal “the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”[35]  Accordingly, “[w]hen an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.  And that is all Title VII has ever demanded to establish liability.”[36]

If we let H refer to homosexual or transgender employees, then the following equivalency emerges:

γ & ß & α = γ & ß & H (Minor Premise)

Therefore: if γ & ß & Hthen V (Q.E.D.)[37]

III.   The Hypotheticals

Throughout his opinion, Justice Gorsuch tests the validity of his Model with a variety of hypotheticals.  One by one, he demonstrates how it can apply to a variety of scenarios.  Below are some of those scenarios, transcribed to formal form. 

Hypo # 1: Assume “an employer fires a woman for refusing his sexual advances.”[38]     Could the employer defend himself by arguing that “he gives preferential       treatment to female employees overall”?[39]

If the “group” definition (~ γ) prevails, then an employer could plausibly so argue.  But since γ is defined as the opposite of (~ γ)—that is, discrimination against an individual is not the same as discrimination against a group—the argument fails: The employer “is liable for treating this woman worse [(γ)] in part because of [(ß)] her sex [(α)].”[40]  Since all three components are present, we have a violation (V).

Hypo # 2: Assume “an employer . . . fires a woman, Hannah, because she        is insufficiently feminine and also fires a man, Bob, for being insufficiently   masculine.”[41]  Could the employer defend himself by arguing that he discriminates          (equally) against both men and women “because of sex?”[42]

If the “group” definition (~ γ) prevails, then an employer could plausibly so argue.  But since γ is defined as discrimination against an individual, this argument fails: “[I]n both cases the employer fires an individual [(γ)] in part because of [(ß) their respective] sex [(α)].  Instead of avoiding Title VII exposure, th[e] employer doubles it.”[43]  Thus, since we have two instances of all three components present, we have two violations (V*2).  Or, in less formal terms, two wrongs do not make a right.

Hypo # 3: Assume “an employer with two employees, both of whom are           attracted to men.  The two individuals are, to the employer’s mind, materially         identical in all respects, except that one is a man and the other a woman.”[44]

If the employer fires the male employee [(γ)] for no reason other than [(ß)] the fact that he is attracted to men [(H)], the employer discriminates against him [(γ) but] for [(ß)] traits or actions it tolerates in his female colleague [(α)].”[45]  Thus, a violation (V) occurs.  

Hypo # 4: Assume “an employer who fires a transgender person who was        identified as a male at birth but who now identifies as a female.”[46]

“If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes [(γ)] a person identified as male at birth [but] for [(ß)] traits or actions that it tolerates in an employee identified as female at birth [(α)].”[47]  Again, since all components are present, we have a violation (V).

Hypo # 5: Assume “an employer who fires a female employee [(γ)] [but] for [(ß)           her] tardiness or incompetence or simply supporting the wrong sports team.”[48]

Clearly, missing from that example is any action related to her sex (α); thus, there is no violation of Title VII: If (γ) & (ß) but no (α), then no (V).

Hypo # 6 (The “Multiple Causes” Scenario): Assume “an employer with a policy          of firing any woman he discovers to be a Yankees fan.”[49]

If the employer would have tolerated the same allegiance in a male employee, then a violation has occurred: “Carrying out that rule [(γ)] because [(ß)] the employee is a woman [(α)] and a fan of the Yankees”[50] still constitutes a violation since all the conditions for the occurrence of (V) have been met, and the addition of the new (random) cause for firing does not change the analysis.  Thus, if we mark “random cause for firing” as R, then if γ & ß & α & R–then (still) V.

The same is true for firing homosexuals or transgender (H) employees:

When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual sex and something else (the sex to which the individual is attracted or with which the individual identifies).  But Title VII doesn’t care.  If an employer would not have discharged an employee [(γ)] but for [(ß)] that individual’s sex [(α)], that statute’s causation standard is met, and liability may attach.[51]

Hypo # 7 (The “Equal Treatment” Scenario): Assume an employer is   “equally happy to fire male and female employees who are homosexual or    transgender.”[52]

Since “the law makes each instance of discriminating against an individual employee [(γ)] because of [(ß)] that individual’s sex [(α)] an independent violation of Title VII [(V)],” then Title VII liability will be attached.[53] 

Recall Hypo # 2 (“Hannah and Bob”): “So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.”[54]

Hypo # 8 (The “Check the Box” Scenario): Assume “an employer asked homosexual or transgender applicants to tick a box on its application form.  The employer then had someone else redact any information that could be used to discern sex.”[55]  Thus, the employer does not know the applicant’s sex, but does know they are homosexual or transgender, which is the reason for the discrimination against them.  Can the employer argue that since it doesn’t know the applicant’s sex, there is no discrimination “based on sex?”[56]

The answer is “no” and relies on the definitions of both “because of” (ß) and “sex” (α).[57]  The employer still must consider the applicant’s sex before deciding to discriminate against them:

Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic.  If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion?  Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.[58]

The same holds here . . . .  [T]here is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating [(γ)] in part because of [(ß)] an applicant’s sex [(α)].  By discriminating against homosexuals [(H)], the employer intentionally penalizes men for being attracted to men and women for being attracted to women.  By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.  Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.[59]

IV.   Applying the Model to Previous Cases

Once Justice Gorsuch established the Model’s application on some hypothetical examples, he turned to apply the Model to actual cases.  Specifically, he applies the Model to the three previous Title VII “because of sex” Court cases.[60]  Below is a short description of each, coupled with a Model application.

In Philips v. Martin Marietta Corp.,[61] “a company allegedly refused to hire women with young children, but did hire men with children the same age.”[62]  The company made two arguments: First, the “discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children”; second, the company argued that “as a whole, it tended to favor hiring women over men.”[63]  Both arguments fail under Bostock’s logic.

The first argument fails because, as we have seen in Hypo # 6, the fact that another random cause for firing (R) is added—here, having young children—does not change the result that all three other components—discrimination (γ) because of (ß) sex (α)—are present. Thus, a violation (V) is triggered.

The second argument fails because, as we have seen in Hypo # 1, the “group definition” as target of the discrimination has been rejected (~ γ).  Therefore, the fact that the employer prefers (or targets) women as a class does not alter the triggering of a violation (V), so long as an individual employee has been targeted.

In Los Angeles Department of Water v. Manhart,[64] “an employer required women to make larger pension fund contributions than men.”[65]  The employer, trying to justify the discrimination, relied on “what appeared to be a statistically accurate statement about life expectancy” in claiming that women “are likely to receive more from the pension fund over time.”[66]

The employer’s argument fails under the Model.  As we have seen in Hypo # 1, the fact that the employer favored (in its mind) women as a group (~ γ), does not change the fact that it discriminated against individual female employees (γ) because of (ß) their sex (α), thus triggering a violation (V).

In Oncale v. Sundowner Offshore Services, Inc.,[67] “a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment.”[68]  The employer presented three arguments: First, since the discrimination was conducted by “members of the same sex” then no violation was triggered; second, “men as a group were [never] subject to discrimination”; and third, that something else, “in addition to sex contributed to the discrimination, like the plaintiff’s conduct or personal attributes.”[69]  All three arguments fail Bostock’s logic.

The first argument fails because, as we have seen in the definition of “discrimination against [an individual] employee,”[70] (γ), so long as an individual employee was intentionally treated worse than other employees—which all agreed had happened here—then the identity or sex of those who caused such treatment are irrelevant for the purposes of triggering a violation (V).

The second argument also fails because, as demonstrated in Hypo # 1, the fact that men as a group (~ γ) were not discriminated against does not change the fact that the employer did discriminate against an individual male employee (γ) because of (ß) his sex (α), thus triggering a violation (V).

Finally, the third argument fails because, as we have seen in Hypo # 6, the fact that another random cause for discrimination (R) is added—here, the employee’s attributes—does not change the result that all three required factors, namely discrimination (γ) because of (ß) sex (α), are present, thus triggering a Title VII violation (V).

V.    Applying the Model to the Cases at Hand

When it comes to the cases at hand, Justice Gorsuch first noted that the employers in all three cases “do not dispute that they fired the plaintiffs for being homosexual or transgender.”[71]  Thus, it follows inevitably that all three components of the Model are present: The employers have fired the plaintiffs (γ) because of (ß) their sexual orientation or sexual identity (H), therefore triggering a Title VII violation (V).  (Recall that if γ & ß & H—then V.)  The inquiry, then, seems to have come to a sudden end. 

What, then, was left for employers to argue?

First, the employers tried to attack the minor premise of the theorem (equating “γ & ß & α” with “γ & ß & H”).  But since their arguments were not rooted in logic, but rather in conversational norms, these arguments were quickly dismissed.[72]

Second, the employers tried to suggest that component (ß)—the “because of” causal connection—was not satisfied in these cases because the discriminatory actions were not “intentional.”[73]  Justice Gorsuch’s answer, based on (ß)’s definition, was swift:

[A]s we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.  An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men, and female employees for being attracted to women.[74]

The third argument made by the employers was that unlike “sex,” the terms “homosexuality” or “transgender status” were not included in the text of Title VII: The employers argued that because Congress never included those terms in the Act, they were “implicitly excluded from Title VII’s reach.”[75]  This argument was not only adopted by, but also served as, the main impetus to the two dissenting opinions by Justices Alito[76] and Kavanaugh.[77]  Justice Gorsuch’s response at this point is as predictable as it is sound.  Referring to his Model’s minor premise, he quips: “As we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”[78] 

Finally, the employers tried to attack the causal connection component—“because of.”[79]  As Justice Gorsuch summarized the issue: “At bottom, the employers’ argument unavoidably comes down to the suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow.  And, as we’ve seen, that suggestion is at odds with everything we know about the statute.”[80]  In other words, the employers tried to use (~ ß) to establish that there was no liability; but the very definition of (ß) rejected that assumption, and therefore a violation (V) occurred.

VI.   Conclusion

Justice Gorsuch’s opinion in Bostock is close to a logical masterpiece. To be sure, this was not always the case with Justice Gorsuch’s other opinions.[81]  But there is value—well beyond this specific case—in writing opinions in a similar, formal-logic, fashion.  For one, logic is universal.  It transcends ideological camps and may create interesting coalitions (such as in this case).  Second, a logic-based opinion—as opposed to, say, a “textualist” or “purposive” opinion—serves an important function in directing courts below, as well as future litigants.  The more logic-based opinions, the less confusion and uncertainty below.  Finally, Bostock was a seminal decision, granting rights previously denied to LGBTQ members.  Title VII LGBTQ cases—which are prone to invite criticism from those who oppose such grant—would likely be more widely received if properly rested on the neutral basis of logic, rather than on a theory more closely identified with one ideological camp or another.

* Cleveland-Marshall College of Law, Cleveland-State University.  This Article owes a great debt to a series of conversations with Professor Avidan Cover.  I would also like to thank Michael Borden, Chris Sagers, and Jonathan Witmer-Rich for their careful reading of and wise comments on an earlier version of this Article.  

      [1].   140 S. Ct. 1731 (2020).

      [2].   Id. at 1741.

      [3].   Id. at 1754 (“An employer who fires an individual merely for being gay or transgender defies the law.”). See also 42 U.S.C. § 2000e-2(a)(1).

      [4].   See, e.g., Drew Anderson, What a Justice Neil Gorsuch Would Mean for LGBTQ Americans, GLAAD (Jan. 31, 2017), (Justice Gorsuch’s profile on GLAAD’s (Gay & Lesbian Alliance Against Defamation) website cataloging several statements and judgments made against LGBTQ interests prior to Bostock).  

      [5].   See, e.g., Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting); United States v. Windsor, 570 U.S. 744, 775 (2013) (Roberts, C.J., dissenting).

      [6].   Arguably, Bostock is even more unusual in its textualist controversy than District of Columbia v. Heller, 554 U.S. 570 (2008) was in its originalist controversy, as Justice Stevens (who wrote the dissent in Heller) was never an avowed originalist, while all three authors in Bostock are self-proclaimed textualists.  Was that action hould be the longest portion)ases, ying the issue, moving the rule, applying what you have studied, and then – a

      [7].   Bostock, 140 S. Ct. at 1755–56 (Alito, J., dissenting).

      [8].   Id. at 1827–28 (Kavanaugh, J., dissenting).

      [9].   Id. at 1827.

     [10].   Id.

     [11].   For a recent critical examination of the term, see Edward A. Purcell, Jr., Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon, xvi–xviii (2020).

     [12].   That the Justice is well versed in such form of writing should come as no surprise, as both his Ph.D dissertation advisors at Oxford—John Finnis and Timothy Endicott—are trained philosophers.  See Neil M. Gorsuch, The Right to Receive Assistance in Suicide and Euthanasia, with Particular Reference to the Law of the United States (2004) (Ph.D. thesis, University of Oxford) (on file with Oxford University Research Archives, University of Oxford),  See also Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 229 (2006) (“Appendix B: Statistical Calculations”).

     [13].   Elena Kagan, Foreword to Antonin Scalia, The Essential Scalia, xvi (Jeffrey S. Sutton & Edward Whelan eds., 2020).  To be sure, Justice Scalia himself was a great proponent of using logic in legal argument.  See, e.g., Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 41–43, 46–48 (2008) (explaining how to “[t]hink syllogistically”).

     [14].   42 U.S.C. § 2000e-2(a)(1) (emphasis added).

     [15].   Bostock, 140 S. Ct. at 1737.

     [16].   Id.

     [17].   Id. at 1739.

  1. The sign “~” (“not”) is used here, as in most propositional connective language, in a “weak” sense—“to  deny the claim made by the negated part.”  John T. Kearns, The Principles of Deductive Logic 142 (1988).  It is not used to claim the opposite of the negated part.

     [19].   Bostock, 140 S. Ct. at 1739.

     [20].   Id.

     [21].   Id.

     [22].   Id. at 1745; see also id. at 1748 (“Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window.  Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window.  That doesn’t change just because you also would have opened the window had it been warm outside and cold inside.  In either case, no one would deny that the window is open ‘because of’ the outside temperature.”).

     [23].   Id. at 1739–40.

     [24].   Id. at 1740.

     [25].   Id. at 1743–44.

     [26].   Id. at 1740.

     [27].   Id. (quoting Webster’s New International Dictionary 1267).

     [28].   Id. at 1741 (emphasis added).

     [29].   Id.

     [30].   See id. (“An individual’s homosexuality or transgender status is not relevant to employment decisions.”).

     [31].   As the Court later noted, in the cases at bar the employers never disputed “that they fired the plaintiffs for being homosexual or transgender.”  Id. at 1744.  In this manner, the cases were distinct from others where “[s]orting out the true reasons for adverse employment decision is often hard business.”  Id.  

     [32].   Id. at 1741.

     [33].   Id. at 1742.

     [34].   Id.

     [35].   Id.

     [36].   Id. at 1744.

     [37].   Or, in other words: “[T]o discriminate [against an employee] on [the grounds of homosexuality or transgender status] requires an employer to intentionally treat individual employees differently [(γ)] because of [(ß)] their sex [(α)].”  Id. at 1742; see also id. at 1743 (“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women [(γ)] in part because of [(ß)] sex [(α)].  That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’” Id. at 1743 (quoting Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (Cabranes, J., concurring), aff’d sub nom., Bostock, 140 S. Ct. 1731)).

     [38].   Id. at 1741.

     [39].   Id.

     [40].   Id.

     [41].   Id.

     [42].   42 U.S.C. § 2000e-2(a)(1).

     [43].   Bostock, 140 S. Ct. at 1741 (second and third emphasis added).  Indeed, in such cases not only do two wrongs do not make a right—they actually multiply the wrong.

     [44].   Id. (emphasis added).

     [45].   Id. (emphasis added).

     [46].   Id.

     [47].   Id.

     [48].   Id. at 1742.

     [49].   Id.

     [50].   Id.  

     [51].   Id.

     [52].   Id.

     [53].   Id.

     [54].   Id. at 1742–43.

     [55].   Id. at 1746.

     [56].   Id.  See also 42 U.S.C § 2000e-2(a)(1).

     [57].   42 U.S.C. § 2000e-2(a)(1).

     [58].   Bostock, 140 S. Ct. at 1746,

     [59].   Id.

     [60].   42 U.S.C. § 2000e-2(a)(1).

     [61].   400 U.S. 542 (1971).

     [62].   Bostock, 140 S. Ct. at 1743.

     [63].   Id.

     [64].   435 U.S. 702 (1978).

     [65].   Bostock, 140 S. Ct. at 1743.

     [66].   Id.

     [67].   523 U.S. 75 (1998).

     [68].   Bostock, 140 S. Ct. at 1743.

     [69].   Id. at 1743–44.

     [70].   42 U.S.C § 2000e-2(a)(1).

     [71].   Bostock, 140 S. Ct. at 1744 (emphasis added).

     [72].   Id. at 1739–40. 

     [73].   Id. at 1740.

     [74].   Id. at 1745 (emphasis added). 

     [75].   Id. at 1746. 

     [76].   Id. at 1754–84 (Alito, J., dissenting).  E.g., id. at 1761 (“The Court proclaims that ‘an individual’s homosexuality or transgender status is not relevant to employment decisions.’  That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened.”).

     [77].   Id. at 1822–37 (Kavanaugh, J., dissenting). E.g., id. at 1830 (“As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination.”).

     [78].   Id. at 1747 (Gorsuch, J., for the Court).

     [79].   Id. at 1747–48.

     [80].   Id. at 1748.

     [81].   See, e.g., Doron M. Kalir, Artis v. District of Columbia—What Did the Court Actually Say?, 94 Notre Dame L. Rev. Online 81 (2018), (criticizing Justice Gorsuch’s opinion in another case).