Category: 103:5

Abstract

State agencies and local nonprofits play a critical role in addressing social problems, by administering federal programs and distributing aid. To uphold the integrity of federal programs, and ensure taxpayer funds achieve congressional goals, federal agencies impose complex regulations on program administrators. Nevertheless, fraud occurs. This forces federal prosecutors to intervene, enforcing 18 U.S.C. § 666 to prosecute federal programs fraud and bribery.

The Feeding Our Future prosecutions in Minnesota, where dozens of individuals were charged with fraud and bribery in the federal Child and Adult Care Food Program (CACFP), exemplify the application of administrative and criminal law to federal social programs. But as policymakers and prosecutors address fraud through rulemaking, legislation, and prosecutions, the Supreme Court in its 2024 decision, Snyder v. United States, weakened the power of federal prosecutors to address future crimes.

After discussing CACFP, the Feeding Our Future prosecutions, and the Snyder decision, this Note proposes solutions to achieve federal program integrity, without overburdening local agencies and nonprofits so as to discourage program participation. These include empowering insiders to bring qui tam claims under the False Claims Act, enforcing administrative penalties before misconduct reaches criminality, and providing prosecutorial guidelines to target conduct that evades civil and administrative enforcement.

Introduction

In the spring and summer of 2020, federal agencies disbursed billions of dollars through state-run federal programs.^[1] One Minnesota nonprofit, Feeding Our Future, jumped at the opportunity to profit from its involvement.^[2] Like many recipients of federal funds, the organization was burdened by complex regulations, imposed to prevent fraud and abuse and to effectuate the program’s statutory goals.^[3] But unlike thousands of nonprofit recipients across the country, Feeding Our Future was undeterred by the law.^[4] In late 2022, federal prosecutors charged forty-seven individuals in the organization’s network of meal distribution sites with stealing $250 million in federal funds allocated toward child nutrition programs.^[5]

The failure of state oversight to curb program fraud before it reached the level of criminality exemplifies the challenge of regulating federal programs. While criminal prosecutions can be an effective deterrent, litigation is costly and, here, only arose after smaller abuses were overlooked for years.^[6] As local needs persist, federal regulators face a difficult choice: ease regulations to give institutions more discretion over how to meet the needs of their community, or crack down on fraud and abuse, tightening enforcement to safeguard federal funds—potentially restricting access to resources in the communities most in need.

This Note considers whether federal prosecutions of federal programs fraud and bribery are effective at ensuring the integrity of federal funds. Part I discusses the Child and Adult Care Food Program (CACFP), administered by the USDA Food and Nutrition Service (FNS). This Part will illustrate how the failure to prevent a massive fraud scheme in Minnesota led to years of criminal litigation. Part II discusses the development of federal criminal anti-bribery law—beginning with enforcement against federal officials and expanding to state and local officials, then private and nonprofit administrators of federal programs. It contemplates the 2024 Snyder v. United States^[7] decision and its impact on future enforcement against public officials receiving “gratuities” from constituents.

Finally, in light of post-pandemic prosecutions and Snyder, Part III proposes alternative solutions to combat federal programs fraud and bribery and ensure the integrity of federal funds. First, expanding enforcement of the False Claims Act by better informing agency employees and individuals in related organizations about their rights to bring qui tam claims. Second, issuing and enforcing federal rules that incentivize state agency oversight of the nonprofits implementing federal programs. And third, guiding prosecutorial discretion to catch misconduct that evades the False Claims Act and regulatory enforcement. By focusing federal enforcement on misconduct expressly prohibited by federal agencies and state and local governments, the Department of Justice (DOJ) can provide fair notice of federal jurisdiction without breaching the principles of state sovereignty.

I. Federal Programs Fraud and Bribery

Article I of the Constitution authorizes Congress to create federal programs to provide for the general welfare of the United States.^[8] Exercising this power, Congress allocates funds to federal agencies, who disburse the money to public and private entities in exchange for one-off agreements, like raising the drinking age,^[9] or ongoing compliance, such as the enforcement of antidiscrimination laws.^[10] When accepting federal funds, entities must comply with the federal statutes that establish and regulate the funded programs, as “Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe.”^[11]

In this way, federal funding can be an effective tool to ensure state, local, and private compliance with federal policy.^[12] Expansive constructions of “federal financial assistance” could even broaden the impact of federal statutes, reaching millions of people who work for, or benefit from, federally funded institutions, like universities and hospitals.^[13]

In addition to civil rights law, qualified recipients of federal funds are subject to another ongoing commitment: federal anti-bribery law.^[14] Before discussing the enforcement of the federal criminal statute,^[15] this Part demonstrates the funding structure and resulting pitfalls of one federal program: CACFP.

A. CACFP’s Structure and Oversight

Authorized to administer the country’s “agriculture, food and nutrition, natural resource protection and management, rural development, and related issues,” the U.S. Department of Agriculture (USDA) annually distributes billions of dollars through its sub-agencies.^[16] One sub-agency, FNS, distributes healthy meals to children and adults across the country through several programs, including CACFP.^[17]

CACFP reimburses “centers” and day care homes for up to two meals and a snack per participant per day.^[18] “Centers” are public or private institutions that provide child care or adult day care; they may also provide emergency shelter for homeless families.^[19] Unless the site is an independently operating “center,” day care homes require sponsorship from a public, private, or nonprofit entity to help them perform financial and administrative functions.^[20] Sponsors are under significant pressure; among other tasks, they facilitate and document staff training, obtain and store child enrollment information, submit reimbursement claims based on meal counts and attendance records, review food menus and recipes, and ensure the sites they sponsor (their “network”) comply with federal civil rights law.^[21] In return, sponsors receive monthly administrative reimbursements based on the number of sites they oversee; this can be up to 15 percent of the federal funds allocated to sites.^[22]

Instead of directly overseeing local organizations, FNS empowers state agencies, often departments of education or health and human services, to oversee the distribution of federal funds.^[23] These agencies review CACFP institutions’ facilities^[24] and finances,^[25] use federal funds to conduct audits,^[26] and may impose fines against sponsors.^[27]

CACFP’s impact has expanded significantly since its creation. In 1968, the USDA predecessor to CACFP fed 23,000 children in day care homes—today it feeds over 4.4 million in day care homes, centers, and after school programs.^[28] As Congress expanded federal food aid, the administrators implementing the programs continued to rely on the sponsor oversight structure.^[29] While this structure appears efficient for federal administrators, who shift oversight costs to state agencies and community-level sponsors, it exposes federal funds to fraud and corruption.^[30] Despite federal regulations requiring state agency oversight, insufficient performance of these tasks provides an opportunity for sponsors to conspire with distribution sites to inflate meal counts and increase their administrative fee reimbursements.^[31]

In 1998, the USDA Office of Inspector General (OIG) released a report on fraud within CACFP, critiquing the program’s sponsorship structure for tempting institutions to evade weak government controls over sponsors and sites.^[32] The report was commissioned in response to a 1996 whistleblower complaint in California, which prompted unannounced “sweeps” of suspected noncompliant organizations.^[33] Alongside FNS, state agencies, and U.S. Attorneys Offices, the OIG’s targeted sweeps found thirty-two “seriously deficient” entities based on their “lack of recordkeeping, claims for unsupported and ineligible costs, lack of provider training and monitoring, and numerous health and safety violations.”^[34] Together, these seriously deficient entities had been receiving $51.5 million annually in CACFP funds.^[35]

As the OIG uncovered the scope of fraud, its report questioned CACFP’s structure.^[36] The OIG’s central concern was that the reimbursement process encourages abuse, by incentivizing sponsors to compete for more sites to raise their administrative reimbursements.^[37] The report proposed restrictions on sites’ ability to change sponsors, uniform federal law limiting administrative reimbursements, and a termination process for seriously deficient sponsors.^[38]

While the mass “sweep” operation may have deterred and eliminated some deficient sponsors, CACFP maintained its sponsorship structure, exposing it to the schemes the OIG sought to prevent. In one high profile incident in New York City, the owner of the Red Apple Child Development Centers submitted false documents to the state agency administering CACFP and, over five years, allegedly stole $3 million in funds designated for child nutrition.^[39] After pleading guilty to charges of federal programs fraud^[40] for inflating the number of children fed at his sites, he was ordered to pay over $2 million in restitution to USDA.^[41]

Despite Red Apple’s flagrant abuse of federal funds, its mission, like that of many CACFP sites, was genuinely valuable to the community.^[42] Before the criminal charges, and after the organization was cut off from city funding for allegedly bribing a city inspector, a New York City councilman defended Red Apple, saying that the organization should have continued receiving city funds because, locally, they were “the largest provider of prekindergarten services to the Asian community.”^[43] Like Red Apple, CACFP sites are an important tool to address hunger—an issue disproportionately impacting immigrant and nonwhite communities.^[44] Given the value of these federal programs, it is essential that their funding be directed toward organizations that truly feed children and adults in need, especially in immigrant communities, where median household wealth is lower than in U.S. born households.^[45]

In 2020, pandemic-related shutdowns and the subsequent economic downturn heightened this need, as millions of children were no longer able to access healthy meals.^[46] In response to the pandemic, USDA issued a nationwide waiver of several monitoring requirements to limit in-person contact and support social distancing.^[47] With these waivers in place, state agencies were no longer required to conduct annual onsite reviews of existing sponsors^[48] or pre-approval visits of new sponsors.^[49] In addition to limiting state agency oversight, USDA granted flexibility to sites, allowing them to serve meals and snacks at the same time, permitting locations in areas that would not have been eligible under CACFP’s income requirements,^[50] and giving Summer Food Service Program sites the ability to serve “grab and go” rather than congregate meals.^[51]

To address the immense need,^[52] relaxed requirements helped local organizations act with more flexibility to get food into the hands of children^[53] without subjecting staff to the ongoing public health risk.^[54] Although state agencies were encouraged “to the maximum extent practicable, [to] continue monitoring activities of program operations offsite (e.g., through a desk audit),”^[55] the scale of federal funds^[56] coupled with relaxed regulations exposed these programs to fraud.

B. Failed Oversight and the Feeding Our Future (FOF) Fraud

In Minnesota, the Minnesota Department of Education (MDE) administers CACFP sponsors, sites, and reimbursements.^[57] As the relevant state authority, MDE has the power to terminate reimbursement payments to sponsors and sites.^[58] MDE exercised this power in January 2022, suspending payments to sponsors subject to a federal investigation,^[59] which eventually implicated FOF and uncovered widespread fraud.^[60]

One distribution site in FOF’s network, Advance Youth Athletic Development, received $3.2 million in federal funds and claimed to serve 5,000 dinners every weeknight out of an apartment in Minneapolis.^[61] FOF, a nonprofit with a troubled past,^[62] saw the number of sites under their sponsorship skyrocket after the 2020 waivers, receiving close to $200 million in federal funds in 2021­­—$19 million of which they kept in administrative fees.^[63] Given the ease of creating new sites, along with the very real need for accessible meals, it is no surprise that FOF was able to obtain federal funds so quickly.^[64]

MDE raised suspicions over FOF’s “lack of financial controls” in the summer of 2020, but a judge ordered payments to continue due to the state agency’s failure to comply with procedural requirements.^[65] The concerns surrounding CACFP’s sponsorship structure were nothing new, as the suspected abuse mirrored the conduct outlined in the OIG report over twenty years prior.^[66] Instead of encouraging sponsors to regulate misconduct in their network, CACFP’s structure actually incentivizes sponsors to ignore it—as sites inflate meal counts, the sponsor’s administrative reimbursements increase.^[67] In September 2022, the DOJ charged forty-seven defendants with stealing $250 million in CACFP funds.^[68] By November 2025, seventy-eight individuals had been charged for their participation in FOF’s scheme,^[69] including Aimee Bock, the organization’s founder and executive director.^[70] Bock, who prosecutors referred to as the “mastermind” of the scheme, was convicted after a jury trial in March 2025.^[71]

The first case to reach a verdict was United States v. Farah.^[72] In Farah, eight defendants were charged with wire fraud, money laundering, and federal programs bribery for their involvement in the scheme.^[73] Three defendants paid bribes to FOF employees in exchange for the organization’s continued sponsorship of Empire Cuisine, a newly enrolled meal distribution site that received over $40 million in federal aid between 2020 and 2022, and claimed to distribute 3,500 meals per day early 2021.^[74] But instead of using the federal reimbursements to purchase and distribute meals, the defendants submitted false documents to MDE, paid FOF employees to cover it up, and used the money for personal gain.^[75]

Before a jury reached a guilty verdict for five of the Farah defendants,^[76] prosecutors called over thirty witnesses to testify at trial, exposing the extent of fraud within FOF and its network.^[77] Defense attorneys portrayed their clients as the founders of growing businesses with informal bookkeeping, claiming they gave real food to real children.^[78] By December 2025, five years after the fraud occurred, fifty-four people had either pleaded guilty or been convicted through a trial,^[79] and six had been sentenced.^[80]

Some of the defendants were community leaders—the exact people whose social networks make them the perfect candidates to administer federal programs on a local level.^[81] The scheme’s reach into seemingly service-minded individuals and organizations creates an uncertain environment and raises difficult questions about CACFP’s future. What sponsors can state agencies trust? What sites can sponsors trust? And what is the role of the law in ensuring that federal dollars designated to feed children in need are not being used to purchase lakefront homes, foreign real estate, luxury cars, and personal international travel?^[82]

C. FOF Fallout: State and Federal Responses to the Oversight Failure

Alongside the federal criminal charges, leaders at both the state and federal level responded to the fraud through legislation, investigation, and administrative rulemaking. In June 2024, Minnesota’s Office of the Legislative Auditor, at the request of public officials, released a special review of MDE’s performance in carrying out its responsibility to oversee FOF.^[83] The report concluded that “MDE’s inadequate oversight of Feeding Our Future created opportunities for fraud”^[84] and recommended both legislative changes and internal MDE policy changes to enhance oversight and deter future misconduct.^[85]

In December 2025, Minnesota Governor Tim Walz, in response to political pressure,^[86] subsequent fraud allegations in other state-run programs,^[87] and inflammatory comments from President Trump,^[88] appointed a new Director of Program Integrity to address statewide fraud.^[89]

At a national level, to support struggling state agencies, like MDE and others across the country, USDA promulgated a new final rule on Child Nutrition Program Integrity, implementing “statutory requirements and policy improvements to strengthen administrative oversight and operational performance of the child nutrition programs.”^[90] The rule updates fines for program violations, prohibits terminated entities from future participation, expands the “serious deficiency process,”^[91] requires more frequent review of sites with “serious management problems,” and imposes stricter reporting and recordkeeping requirements on sponsors.^[92]

Congress members, interested in protecting the funds they allocate, also responded. In May 2024, Representative Angie Craig of Minnesota introduced a bill increasing penalties for bribery in federal programs under § 666(a) and amending the National School Lunch Act to require annual audits for Summer Food Program organizations.^[93] Representative Craig’s bill, the Stop Fraud in Federal Programs Act, represents a proactive approach to anticorruption enforcement, based on the theory that increasing penalties and the probability of detection will deter fraud by making it more costly for would-be criminals.^[94]

Like the USDA rules and State Auditor report, the proposed legislation indicates governmental interest in stricter enforcement of federal rules to deter sponsors from conspiring with sites to commit fraud.

But increased rules for CACFP institutions can also serve as barriers to participation and undermine the program’s underlying goals.^[95] While Congress seeks to ensure program integrity, federal over-regulation can cause state-level inefficiencies by imposing administrative costs on state, local, and nonprofit institutions.^[96] Complex regulations, such as audit and recordkeeping requirements, take time and money to implement­­—two resources that overworked nonprofit employees have in short supply.^[97] This begs the question—who benefits from enhanced regulations and how do they further CACFP’s mission of feeding children in need?

Nonprofits play a critical role in the country’s social safety net, supporting individuals that may otherwise rely on state and federal welfare programs.^[98] Therefore, regulations that bog down the nonprofits diligently documenting their compliance can undermine the government’s goals. Ensuring the effectiveness and integrity of federal programs requires a difficult balance. Policymakers must require regulatory oversight to deter fraud, while easing regulatory requirements to encourage the creation of new sites and expand access to much needed aid.

Instead of proactively improving regulations in response to the FOF cases, a U.S. House Committee sought to deter fraud by investigating Minnesota’s political leadership. In September 2024, the Committee issued a subpoena to Governor Walz, who was running for vice president at the time, for documents related to his oversight of MDE.^[99] Instead of regulating sponsors and sites, the people directly implicated in the fraud, the Committee directed their investigation toward elected officials, warning them that they may be accountable for misconduct occurring on their watch. While this approach could encourage more diligent state oversight, it fails to deter or punish the offenders themselves.

In 2026, politically motivated federal action continues to impact, and is likely to set back, the FOF prosecutions and investigations. In January 2026, six federal prosecutors in Minnesota, including the lead prosecutor on the FOF cases, resigned in disagreement with instructions from senior DOJ officials.^[100] Before the resignations, DOJ leadership had pressured prosecutors to investigate the wife of Renee Good, who was shot and killed by a federal immigration agent, and refused to include state officials in the investigation of Good’s shooting.^[101]

The DOJ can bring criminal bribery charges against a range of offenders, including low level administrators of federal programs,^[102] nonprofit directors,^[103] private individuals seeking to bribe local officials,^[104] and local elected officials themselves.^[105] The criminal cases against those involved in the FOF scheme represent another key application of anti-bribery law—protecting massive federal programs.

III. Federal Anti-Bribery Enforcement

The fight against public corruption is rooted in Western moral and legal culture^[106] and was prioritized by the Framers, who included anti-bribery provisions in the Constitution^[107] and in the country’s first federal criminal code.^[108] Today, federal prosecutors utilize two criminal statutes to combat fraud and bribery by public officials and in federal programs—§ 201 and § 666.^[109]

While both statutes seek to prevent public corruption,^[110] the gaps between the statutes present risks. Millions of individuals involved with federal programs are subject to federal jurisdiction under § 666, but prosecutions are limited to individuals committing bribery and fraud with the corrupt intent to influence an official act. Individuals who give and receive gratuities, value provided after an official act, evade the statute.^[111] And while § 201 criminalizes both bribery and illegal gratuities, only federal employees are subject to the statute, allowing local government officials and individuals working for federally funded programs to evade enforcement.^[112] These gaps open the door for opportunistic criminals to take advantage of weak state and local controls over the recipients of federal funds.

A. Prosecuting “Public Officials”

Enforcement of § 201 is textually limited to value received by, or given to, a “public official.”^[113] This includes members of Congress and individuals acting on behalf of the United States in a “department, agency, or branch of government.”^[114] The DOJ has applied the statute expansively to non-elected or appointed officials as well.^[115]

In Dixson v. United States, the Supreme Court accepted an expansive construction of § 201.^[116] It affirmed the conviction of a nonprofit executive under the statute, extending federal jurisdiction to individuals with “some degree of official responsibility” for administering federal programs—those in positions of “public trust.”^[117] The defendant, who directed a nonprofit administering U.S. Department of Housing and Urban Development block grants, was convicted for using his position to obtain roughly $42,000 in kickbacks from the contractors he hired to build housing projects.^[118] The Court held that he was a public official because the Housing and Community Development Act “vests in local administrators . . . the power to allocate federal fiscal resources for the purpose of achieving congressionally-established goals.”^[119]

Unlike in Dixson, the defendants in Farah and in subsequent FOF cases were further removed from the federal government; they were not elected officials nor employees of a state or federal agency. ^[120] Therefore, they could not have been subject to § 201 prosecution, despite allegations of offering and accepting bribes in exchange for access to federal funds.^[121] Instead, a string of relationships—between the sites, their sponsors, state and federal agencies, and federal funds—gave prosecutors a jurisdictional hook to bring charges under a different statute: § 666.

B. Expanding Prosecution to Federal Programs

Within a year of the Dixson decision, Congress enacted § 666 to “augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies” and to “protect the integrity of the vast sums of money distributed through Federal programs.”^[122] § 666 empowers federal prosecutors to prosecute state and local officials as well as the administrators of any program receiving over $10,000 in federal funds.^[123]

Distinct from § 201, which even post-Dixson is textually constrained to public officials, § 666 eliminates the public official requirement completely.^[124] Federal jurisdiction is based on the relationship between a private, nonprofit, state, or local entity and the federal government—not an individual defendant’s relation to the federal government.^[125] In Farah, for example, defendants ran nonprofits several levels removed from the federal government. The federal government, through USDA and FNS, oversaw the state agency, which oversaw the sponsor, which supervised the nonprofits.^[126]

To convict an individual of federal programs fraud under § 666, prosecutors must establish that the defendant is an agent of a covered entity, and that they stole, embezzled, or obtained by fraud, property worth over $5,000 that was under the control of the entity.^[127] And to convict an individual for federal programs bribery under § 666, prosecutors must establish that the defendant:

[C]orruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.^[128]

Expansive jurisdiction presents risks. As Justice Kavanaugh recognized in Snyder v. United States, “a county official could meticulously comply with her county’s local gratuities rules . . . but still face up to 10 years in federal prison . . . .”^[129] One commentator described § 666 as “The Beast in the Federal Criminal Arsenal” and a “federal criminal statute of potentially limitless scope and effect.”^[130]

In 2010, the Eleventh Circuit in United States v. McNair compounded these risks, lowering the government’s prosecutorial burden by holding that a § 666 conviction does not require a quid pro quo, or a clear line between payments provided and official acts.^[131] This would punish both gratuities after the act, and bribes before the act. Under McNair, the government would only need to prove “an intent to corruptly influence or to be influenced ‘in connection with any business’ or ‘transaction.’”^[132] This government-favored approach was not universally accepted. The Fifth Circuit limited § 666 to quid pro quo bribery, holding in United States v. Hamilton that the statute does not criminalize gratuities.^[133]

The Supreme Court settled the circuit split in Snyder v. United States.^[134] In Snyder, the former mayor of Portage, Indiana was convicted under § 666, for accepting $13,000 from a trucking company after awarding them a city contract.^[135] Defending a broad interpretation of the statute, the United States argued that § 666 includes gratuities, like the one received by the defendant after his official act, because the statute includes the term “rewarded” along with “influenced.”^[136] But the Court held that when “rewarded” is paired with the word “corruptly,” as in § 666, the term does not include gratuities.^[137] It reversed the mayor’s conviction, pointing to the fact that the text of § 666 more closely aligns to § 201(b) proscribing bribery, and not § 201(c) on illegal gratuities.^[138]

Even without the ability to prosecute gratuities, § 666 is powerful tool that prosecutors can use to punish and deter fraud and bribery in federal programs. Cases like Farah provide a useful example, as prosecutors used the statute to convict non-public officials for fraud against the federal government.^[139] However, it is not difficult to imagine similar schemes involving federal programs, where the individuals engaged in the fraud provide gratuities instead of a quid pro quo bribe and avoid § 666 enforcement. In this way, the Snyder decision limits the federal government’s ability to protect the integrity of the state-run programs that it funds. Therefore, alternative methods of enforcement are necessary to supplement the criminal statute.

IV. Enforcement Alternatives: Promoting Social Goals While Punishing Corruption

An effective enforcement system must balance competing goals: deterring and punishing corruption while preserving the autonomy of private and nonprofit organizations to distribute aid at a community level.^[140] In addition to targeted criminal enforcement under § 666, False Claims Act qui tam actions and enhanced administrative enforcement can contribute to these goals. Applying these alternative methods can harness the networks and community trust of local organizations while empowering individuals and state agencies to root out fraud before it rises to the level of criminality.

As national emergencies necessitate massive federal disbursements, the government must be prepared to track its funds when the next wave of aid is required.^[141] But in 2024, as agencies strengthened regulations in response to pandemic-related fraud, the Supreme Court weakened federal law enforcement by limiting the reach of § 666.^[142] Still, the Snyder majority’s concerns regarding federal overreach into state and local policy decisions must inform alternative enforcement mechanisms.^[143] To address these concerns, prosecutorial and administrative decisions should encourage all levels of administrators of federal programs to “meticulously comply with . . . local gratuities rules” as well as federal regulations and criminal law.^[144]

Taking Justice Kavanaugh’s assertions in his Snyder majority too far and stripping the federal government of its ability to prosecute local corruption would open the door for opportunistic criminals—like the FOF defendants—to take advantage of weak government controls.^[145] Crimes on the scale of FOF force the government’s hand, necessitating criminal prosecutions instead of preemptive social policy and administrative enforcement. The state-level failure to prevent the FOF scheme undermines Justice Kavanaugh’s argument against federal enforcement—in Minnesota, federal enforcement was not a trap for the “unwary” official,^[146] but the last line of defense after rampant misconduct evaded state regulators.^[147]

When governments at all levels fail to contain public corruption, the nonprofit industry and its beneficiaries suffer.^[148] Donations and volunteerism are key to the nonprofit sector and provide a unique non-partisan path to address social problems.^[149] Even after prosecutors exposed, and MDE shut down, the fraudulent organizations in FOF’s network, Minnesota’s nonprofits saw a decline in both donations and volunteer engagement.^[150] This exemplifies the stakes involved in issuing anti-fraud rules, and the public interest in their enforcement; without effective prosecution and deterrence, donor confidence falls and communities suffer.

Despite the risk of fraud, the Biden administration in 2024 touted its support for the local organizations tasked with administering social programs.^[151] While the White House communicated these goals, federal agencies continued to strictly regulate funding recipients, amplifying Justice Kavanaugh’s concerns about federal overreach.^[152] Kavanaugh questions the ability of the federal government to “override state and local governments on such core matters of state and local governance” by enforcing § 666 against local officials.^[153] Allowing the federal government to enforce § 666 against gratuities, he writes, would subject nineteen million state and local officials to federal regulation on top of local and state rules.^[154]

While Kavanaugh’s concerns have merit, they ignore the problem underlying scandals like FOF—that state and local regulators can fail, allowing opportunistic criminals to take advantage of weak federal oversight.^[155] When state agencies do not protect federally allocated dollars, federal programs will not achieve their intended congressional impact. While federal regulations and prosecutions are necessary, administrative expansion may fall victim to Supreme Court skepticism,^[156] and prosecutions only begin after the fraud has occurred. Therefore, to balance judicial skepticism, federalism, and the public interest in ensuring the effectiveness of federal programs, anti-fraud policy should incentivize private actors and state agencies to root out fraud before federal entities are required to intervene.

A. Qui Tam Actions Under the False Claims Act (FCA)

The FCA^[157] provides a unique enforcement model that could benefit federal programs—qui tam claims, where private citizens sue on behalf of the United States.^[158] To incentivize private litigants (called relators), the FCA entitles them to a portion of the reward after a successful claim.^[159] The first three provisions of the statute subject to enforcement anyone who:

(A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;

(B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;

(C) conspires to commit a violation of subparagraph (A), (B), [or subsequent provisions].^[160]

The history of private enforcement supports its application to fraud and bribery in federal programs. Since the country’s founding, Congress has used private enforcement as an efficient method to protect the money it distributes.^[161] Over time, the law has developed to address self-interested opportunism during national crises, as individuals sought personal gain from federal distributions.^[162] Just as Civil War fraud spurred the FCA’s enactment,^[163] pandemic-era cases create an opportunity to apply qui tam enforcement to protect the integrity federal funds during the next national crisis.^[164]

In 1986, the same year Congress narrowed § 666 by adding the “corruptly” requirement,^[165] it amended the FCA, extending eligibility to bring qui tam claims to many federal employees.^[166] Civil FCA penalties can be massive,^[167] and effective private enforcement can increase the certainty of punishment as potential violators are closely watched by their own employees.^[168] In theory, this would deter fraud.^[169]

Defendants in the FOF cases were convicted for several federal crimes, but not for false claims, despite prosecutors alleging the submission of documents falsely claiming to distribute meals.^[170] This was an exercise of prosecutorial discretion; federal prosecutors charged the defendants with federal crimes, instead of civil FCA violations, likely based on their evidence, resources, and the egregiousness of the misconduct.^[171]

Despite the severity of the eventual criminal charges, DOJ only brought them after millions of dollars were stolen from the nutrition program Congress sought to fund.^[172] Instead of criminal charges, could an earlier whistleblower report and subsequent FCA claim have stopped the bleeding before more federal dollars were stolen? Multiple employees testified against the defendants at trial—employees with knowledge of the fraudulent conduct and likely sufficient evidence to bring qui tam claims.^[173]

To incentivize FCA claims before the need for a witness to testify at a criminal trial, federal agencies should inform their employees, contractors, and funding recipients of their whistleblower protections^[174] and of their potential payout for bringing a successful claim.^[175] The infrastructure for private enforcement already exists; law firms specialize in representing whistleblowers in cases alleging bid rigging, bribery, and kickbacks to obtain government contracts.^[176] Just as relators bring FCA claims to ensure the Government does not overpay on military contracts, similar claims can ensure federal funds are not siphoned away by self-interested program staff.^[177]

A well-informed workforce could prevent the need for criminal charges, and further the FCA’s intent to “encourage any individual knowing of Government fraud to bring that information forward.”^[178] The USDA OIG already accepts fraud reports through a hotline and could supplement its existing role by providing training materials to state agencies, who communicate with sponsors and subsequently sites.^[179] When federal funds are disbursed to small day care homes, qui tam claims from on-the-ground informers could be less costly for the federal government than criminal charges.^[180]

However, over-incentivizing suits can impose an administrative and investigative burden on prosecutors, who must investigate a qui tam suit within sixty days of the complaint to decide whether to intervene.^[181] When a relator files the complaint instead of the Government, DOJ loses its ability to dictate the timing and forum of enforcement.^[182] Therefore, while educating employees and contractors, DOJ must diligently uphold the statutory limits on opportunistic relators^[183] and protect its right to exert some control over a qui tam case.^[184]

Training and guidance, for both prosecutors and potential relators, should include information on the FCA’s conspiracy provision^[185] and its “causes to be made” language,^[186] which subject to liability individuals who confer bribes or gratuities onto another in exchange for their submission of false claims to the federal government.^[187] DOJ can issue guidance to prosecutors, and agency OIGs to potential relators, that providing something of value in exchange for the submission of a false claim can satisfy the FCA’s causation requirement.^[188]

In addition to expanded FCA enforcement, Congress could amend § 666, adding a qui tam provision to allow relators to bring private criminal suits for bribery and fraud. Instead of tipping off the FBI, insiders at federal programs would be incentivized to sue, and the DOJ would have the opportunity to investigate and intervene. This is supported by the statute’s purpose, “to ensure that ‘taxpayer dollars . . . are in fact spent for the general welfare, and not frittered away in graft.’”^[189] These suits would also ease the DOJ’s enforcement burden, as they would allocate resources toward investigating FCA claims instead of closely monitoring local organizations across the country.^[190]

While there is some efficiency value in adding this provision, qui tam actions are traditionally limited to civil suits because the DOJ has prosecutorial discretion over criminal suits.^[191]For example, the interests of a private relator may contradict the public interest in retributive justice, depending on the immorality of the crime. This tension makes it unlikely a qui tam provision would be added to § 666.

B. Administrative Rulemaking to Expose Corruption Before Criminality

The Snyder constraints on criminal enforcement of § 666,^[192] and the state agency’s failure to prevent the FOF scheme,^[193] leave a hole in fraud enforcement. Enhanced federal administrative rules can fill this hole and, alongside well-funded enforcement, effectively prevent and punish federal programs fraud and bribery.

Agencies like FNS, tasked with implementing federal programs, are authorized to promulgate rules to ensure the funds they distribute achieve Congress’s policy goals.^[194] FNS issued the Program Integrity Rule in 2023, enhancing the enforcement of anti-fraud mechanisms within the federal programs it oversees.^[195] The final rule expands the state agency review requirements to expose fraudulent conduct before it becomes criminal.^[196]

While state agencies review institutions’ facilities and finances, they may only impose fines against a sponsor that is a school food authority—this means nonprofit sponsors, like FOF, are not subject to fines.^[197] Instead, nonprofit sponsors are subject to the serious deficiency process^[198] and may be disqualified for failure to take corrective action.^[199] Given the failure of the serious deficiency process to stop the FOF fraud, FNS should expand fines to include nonprofit sponsors.^[200] By taking advantage of the existing sponsorship system and avoiding direct entanglement with local distribution sites, FNS can protect federal funds by making it more costly for sponsors to fail at their duty to oversee sites.^[201]

Expanded fines will only be effective, however, when the state agency actively exercises its authority under the federal rules.^[202] Therefore, in addition to state agencies penalizing noncompliant sponsors, FNS should more actively police state agencies by imposing fines against them to ensure federal programs are not at risk.^[203] Each state agency must uphold its responsibility to ensure federal funds are used to feed children and not lost to corruption.

These proposals—expanded fines against state agencies and nonprofit sponsors—align with the position of the USDA OIG regarding the integrity of CACFP funds.^[204] But while many individuals will comply to avoid the cost of violations, some may be willing to pay to avoid enforcement,^[205] and others may be afraid to seek federal funds at all.^[206] Therefore, even with stronger administrative tools, two complementary actions are necessary: (1) federal prosecutors must continue to enforce § 666 when state agencies fail to catch misconduct, and (2) state agencies must continue providing technical assistance to local CACFP sites and sponsors to ease the administrative burden of participation.

C. Supplement Administrative Rules with Strategic Prosecutorial Discretion

Given the potential for regulatory failure, criminal prosecutions are a necessary component in the web of law protecting the integrity of federal programs.^[207] However, with a statute as far-reaching as § 666, prosecutors need guidance to avoid disrupting socially beneficial federal programs, as well as state and local governments.^[208] Updated in 2020, before the Snyder decision, the DOJ instructs its prosecutors to find a “substantial and identifiable Federal interest” before bringing § 666 charges.^[209] Regarding federal programs, the interests of the public and DOJ align—both want to ensure taxpayer dollars are properly spent.^[210] As the Snyder Court recognized, standardless enforcement would “turn § 666 into a vague and unfair trap.”^[211]

Rejecting the Government’s proposed standard^[212] for criminalizing gratuities under § 666, the Court pointed to regulatory guidance on § 201(c), which expressly punishes gratuities given to or accepted by public officials.^[213] In addition to the ethics rules cited in Snyder, agencies publish their own guidance to ensure their employees avoid § 201 charges.^[214] To clarify the criteria for § 666, and address concerns about federal overreach and lack of fair notice,^[215] agencies implementing federal programs should issue rules regarding the application of § 666 to both their employees and anyone involved in the program’s implementation.^[216]

Although agency guidelines do not bind prosecutorial discretion,^[217] many agencies already have rules regarding bribery, fraud,^[218] and whistleblower protections.^[219] Using the existing training infrastructure within the federal agencies implementing local programs,^[220] agencies can expand guidance on § 666 enforcement to local organizations to clarify who is subject to the law and inform potential whistleblowers of the conduct they can report.

While these guidelines address federal programs, they would not address corruption by elected officials who are not working under a federal agency. The jurisdiction of the Office of Government Ethics, which issues rules implementing § 201, is limited to executive branch officers and employees.^[221] To address § 666 bribery outside federal agencies, the DOJ should expand its existing guidelines by issuing standard guidance on the conduct and individuals subject to the statute and the whistleblower reporting process.^[222] Distinguishing misconduct involving elected officials from misconduct within federal agencies will save investigative resources, provide fair notice, and empower potential whistleblowers.

D. Eliminate Federal Programs to Shift Aid and Enforcement Costs to States

Instead of pouring resources into anti-corruption efforts through extensive rulemaking and federal prosecutions, some researchers suggest Congress could eliminate federal programs altogether. By ending food subsidies, including programs like CACFP, Congress would cut $145.6 billion from the federal budget.^[223] Without federal subsidies, state and local governments, as well as private and nonprofit institutions, would be left to fill the gap for people in need.^[224]

With a better understanding of community needs and stronger trust among beneficiaries, these institutions may more effectively distribute aid and remove the barriers that limit access to federal programs.^[225] State-run programs can be shaped by the needs of the community, whose constituents will have a stronger voice in policymaking than they do at the federal level. Regarding nutrition programs, community input may result in differing eligibility requirements, nutrition standards, and application processes for institutions seeking to participate.^[226] While federal prosecutors would lose jurisdiction to intervene in criminal cases, state governments can pass more stringent anti-fraud standards to enforce the laws they enact.^[227]

But variation among states is not necessarily beneficial. For example, states without effective distribution strategies and enforcement mechanisms would be even worse off than they were when subject to federal regulations. This would be especially worrisome in lower income states, which may not have the resources to distribute food aid statewide through local governments, nonprofits, and private institutions. Without $145 billion in federal aid, how would underserved states and localities incentivize donors and grantors to contribute to their needs?^[228]

Despite the persistent risk of fraud given the size, scope, and complexity of programs such as CACFP, federal programs’ ability to reach dispersed communities in need make them a necessary, yet imperfect, part of the country’s social safety net.

Conclusion

In a country with diverse state and local needs, federal programs administered by state agencies and local nonprofits play a crucial role in addressing social problems and unexpected crises. Yet burdensome federal rules hamstring the organizations on the ground, preventing participation in an attempt to deter fraud. In CACFP’s case, children deserve better.

Effective policy must simultaneously protect the integrity of federal funds and ensure program stability—encouraging participation without cutting regulation so much as to incentivize opportunism. By empowering insiders to bring qui tam FCA claims, enforcing administrative penalties before misconduct reaches criminality, and providing prosecutorial guidelines to target conduct that evades civil and administrative enforcement, the U.S. can move in the right direction—toward accessible aid and trustworthy administrators.

1. . See, e.g., Leslie Hodges, Jordan W. Jones & Saied Toossi, Coronavirus (COVID-19) Pandemic Transformed the U.S. Federal Food and Nutrition Assistance Landscape, USDA Econ. Rsch. Serv.: Amber Waves (Oct. 4, 2021), https://www.ers.usda.gov/amber-waves/2021/october/ coronavirus-covid-19-pandemic-transformed-the-u-s-federal-food-and-nutrition-assistance-landscape [https://perma.cc/QN87-BAN6] (stating that USDA food and nutrition programs received $122.1 billion in 2020, a “historical high”). ↑

2. . David A. Fahrenthold, FBI Sees ‘Massive Fraud’ in Groups’ Food Programs for Needy Children, N.Y. Times (Mar. 8, 2022), https://www.nytimes.com/2022/03/08/us/politics/food-aid-nonprofits-fraud-investigation.html [https://perma.cc/FU8B-SNQK]. The organization’s network of food distribution sites received $3.5 million in USDA funds in 2019, before the Covid-19 pandemic. By 2021, that number was $197 million. Id. ↑

3. . See 7 C.F.R. § 226.1 (2026) (regulating the Child and Adult Care Food Program, which “intend[s] to provide aid to child and adult participants and family or group day care homes for provision of nutritious foods that contribute to the wellness, healthy growth, and development of young children, and the health and wellness of older adults and chronically impaired persons”); see also infra Section I.A. ↑

4. . Press Release, Nat’l CACFP Ass’n, NCA Condemns Groups Charged with Conspiracy, Fraud Against Nutrition Programs (Sept. 23, 2022), https://www.cacfp.org/2022/09/23/nca-condemns-groups-charged-with-conspiracy-fraud-against-nutrition-programs/   %5Bhttps://perma.cc/Z4W4-V3J2%5D (condemning fraud while recognizing “thousands of community-based organizations fed millions of children [during the 2020 pandemic] while following federal guidelines with utmost integrity”). ↑

5. . Press Release, U.S. Dep’t of Just., Off. of Pub. Affs., U.S. Attorney Announces Federal Charges Against 47 Defendants in $250 Million Feeding Our Future Fraud Scheme (Sept. 20, 2022), https://www.justice.gov/opa/pr/us-attorney-announces-federal-charges-against-47-defendants-250-million-feeding-our-future [https://perma.cc/G5XL-UWAX]. ↑

6. . See infra Section I.B (discussing the state agency’s inability to stop the fraud). ↑

7. . 603 U.S. 1 (2024). ↑

8. . U.S. Const. art. 1, § 8, cl. 1 (“Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .”). ↑

9. . South Dakota v. Dole, 483 U.S. 203, 211–12 (1987) (upholding a federal statute directing the Secretary of Transportation to withhold federal highway funds from states that allow individuals under the age of twenty-one to purchase or possess alcohol). ↑

10. . Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75–76 (1992) (permitting a damages remedy for plaintiffs under Title IX of the Civil Rights Act of 1964). President Trump’s second administration has leveraged the spending power to limit antidiscrimination programs in institutions receiving federal funds. See Exec. Order No. 14173, 90 Fed. Reg. 20 (Jan. 21, 2025) (“Restoring Merit-Based Opportunity”). ↑

11. . Franklin, 503 U.S. at 75. ↑

12. . See Shariful Khan, An Expansive View of “Federal Financial Assistance,” 133 Yale L.J.F. 691 (2024). Congress’s civil rights legislation incentivizes compliance within federally funded programs. See, e.g., Title VI of Civil Rights Act of 1964, 42 U.S.C. § 2000d (prohibiting discrimination by recipients of federal funds); Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (prohibiting discrimination in education programs receiving federal funds). ↑

13. . Khan, supra note 12, at 712–15. Khan asserts that “federal financial assistance” could include all recipients of noncompensatory funds. Id. at 711–12. This expanded definition could “offer nearly 1.5 million new students Title IX’s protections against sex discrimination,” increase the consistency and clarity of federal enforcement, and punish institutions that “might refuse benefits in order to maintain discriminatory practices . . . .” Id. at 713, 715. ↑

14. . 18 U.S.C. § 666. ↑

15. . See infra Section II.B. ↑

16. . U.S. Dep’t of Agric., FY 2024 Budget Summary 1; see also 7 U.S.C. § 2201 (establishing the department). ↑

17. . FNS Nutrition Programs, USDA Food & Nutrition Serv., https://www.fns.usda.gov/ programs [https://perma.cc/PP62-MMBS]. ↑

18. . Kara Clifford Billings, Cong. Rsch. Serv., R46234, School Meals and Other Child Nutrition Programs: Background and Funding 29 (2022). ↑

19. . Id. at 31. ↑

20. . Id. at 29–30. Day care homes looking to become a CACFP site can find sponsors using a publicly accessible online database. Find a Food Program Sponsor, Nat’l CACFP Ass’n, https:// info.cacfp.org/sponsor [https://perma.cc/44JK-N8BV]. ↑

21. . See, e.g., Minn. Dep’t of Educ., Child and Adult Care Food Program Requirements Checklist (Nov. 3, 2022). ↑

22. . Billings, supra note 18, at 31 n.130. Sponsors can waive the 15 percent cap by justifying to the state agency that their administrative costs exceed this amount. 7 C.F.R. § 226.7(g)(1) (2026). ↑

23. . 7 C.F.R. § 226.6 (2026); Child & Adult Care Food Program Contacts, USDA Food & Nutrition Serv. (June 22, 2023), https://www.fns.usda.gov/cacfp/program-contacts [https://perma.cc/ AJ2N-VCFJ] (providing an interactive map indicating the relevant state agencies). ↑

24. . 7 C.F.R. § 226.6(m)(6) (requiring state agencies to annually review one third of all CACFP institutions). Every two years, state agencies must review sponsors with over 100 facilities that have, or are at risk of having, “serious management problems.” 7 C.F.R. § 226.6(m)(6)(ii). Such problems include “administrative weaknesses that affect an institution’s ability to meet CACFP performance standards.” Implementation Guidance: State Agency Review Requirements, Nat’l CACFP Ass’n (Feb. 26, 2024), https://www.cacfp.org/2024/02/26/state-agency-review-requirements [https://perma.cc/ DX93-SAVG] (outlining risks such as: “sizable differences in the number of claims or the amount of claims submitted by an institution, or large increases in the number of sponsored centers or day care homes”). Every three years, state agencies must review sponsors with under 100 sites. 7 C.F.R. § 226.6(m)(6)(i). Finally, within their first ninety days, state agencies must review new sponsors with over five sites. 7 C.F.R. § 226.6(m)(6)(iv). ↑

25. . 7 C.F.R. § 226.7(b)(1) (2026). State agencies must annually review sponsors’ bank account activity to ensure that “[p]rogram funds are being spent on allowable cost categories approved in the budget” and that administrative reimbursements do not exceed the 15 percent cap. 7 C.F.R. § 226.7(b)(1)(i)–(ii); Final Rule: Child Nutrition Program Integrity, Nat’l CACFP Ass’n (Aug. 28, 2023), https://www.cacfp.org/2023/08/28/final-rule-child-nutrition-program-integrity/?t [https://perma. cc/LM8B-Q3UL]. ↑

26. . 7 C.F.R. § 226.4(j) (2026). State agencies may apply for increased audit funds through a written request to the USDA. Procedural Matters, 88 Fed. Reg. 57792, 57817 (Aug. 23, 2023) (codified at 7 C.F.R. pts. 210, 215, 220, 225, 226, 235 (2026)). ↑

27. . 7 C.F.R. § 225.18(k)(1) (2026). The state agency, upon its own determination or under the direction of FNS, may impose fines when a sponsor or its site has “(i) Failed to correct severe mismanagement of the Program; (ii) Disregarded a Program requirement of which the sponsor or its site had been informed; or (iii) Failed to correct repeated violations of Program requirements.” 7 C.F.R. § 225.18(k)(1)(i)–(iii). The state agencies themselves may also be subject to fines imposed by FNS for the same misconduct. 7 C.F.R. § 235.11(c)(1) (2026). ↑

28. Program History, Nat’l CACFP Ass’n, https://www.cacfp.org/program-history/ [https://perma.cc/UT9M-H7SU]; National School Lunch Act and Child Nutrition Act of 1966 Amendments of 1975, Pub. L. No. 94-105, 89 Stat. 511 (codified at 42 U.S.C. § 1766) (creating CACFP and expanding FNS aid to include sponsored day care homes).

    ↑

29. . FNS also implements the Summer Food Service Program (SFSP), which provides free meals and snacks at neighborhood sites after the school year. SUN Meals (Summer Food Service Program), USDA Food & Nutrition Serv., https://www.fns.usda.gov/summer/sunmeals [https:// perma.cc/QZN9-ZHUL]. This program similarly relies on state agencies and sponsors to oversee local distribution. USDA Food & Nutrition Serv., Summer Food Service Program Administrative Guide (2024). ↑

30. . See discussion infra Section I.B. ↑

31. . See infra Section I.B (discussing a scheme to collect millions of dollars in CACFP funds by inflating meal counts and providing kickbacks to a sponsor to avoid regulatory enforcement). ↑

32. . Roger C. Viadero, Inspector Gen., U.S. Dep’t of Agric., Operation “Kiddie Care” (Interim Report), Audit No. 27601-3-SF (Apr. 1998) [hereinafter OIG Report]. ↑

33. . Id. at 3. ↑

34. . Id. at 2–6. The OIG also found sponsors with conflicts of interest with state agencies and those who submitted inflated budgets and payments to nonexistent employees to raise their administrative reimbursement. Multiple sponsors were convicted and sentenced to prison time. Id. at 2. ↑

35. . Id. at 1. ↑

36. . Id. at 7 (“Are there some basic problems with this program?”). ↑

37. . Id. at 7–8. ↑

38. . Id. At the time, administrative reimbursements could be as high as 30 percent of total meal reimbursements. In 2026, the maximum is 15 percent, but state agencies can waive this cap upon a sponsor’s application. 7 C.F.R. § 226.7(g)(1) (2026). ↑

39. . Brief and Appendix for the United States at *3–4, Shen v. United States, No. 22-378 (2d Cir. June 6, 2023), 2022 WL 5434529. The Government alleged the defendant used CACFP funds to pay personal loans and income taxes, and to fund his furniture company. Id. at *4. ↑

40. . For a full discussion of federal programs fraud and bribery, see infra Section II.B. ↑

41. Shen v. United States, No. 22-378, 2023 WL 3830481, at *1 (2d Cir. June 6, 2023); Sharon Otterman, Couple Accused of Stealing Millions Intended for Preschoolers’ Meals, N.Y. Times (Sept. 16, 2011), https://www.nytimes.com/2011/09/17/nyregion/couple-accused-of-stealing-food-money-from-red-apple-preschools.html [https://perma.cc/8WH2-6N2X].

    ↑

42. . Why CACFP Is Important, USDA Food & Nutrition Serv. (June 11, 2024), https://www. fns.usda.gov/cacfp/why-cacfp-important [https://perma.cc/9YZP-XKN8] (highlighting that children are eligible for free meals when their household’s income falls below 130 percent of the poverty line). ↑

43. . Otterman, supra note 41. New York City initially cut off contracts with Red Apple after the owner allegedly attempted to bribe a city inspector to ignore his false occupancy certificates. Id. The organization continued receiving federal funds. Id. ↑

44. . Areeba Haider & Lorena Roque, New Poverty and Food Insecurity Data Illustrate Persistent Racial Inequities, Ctr. for Am. Progress (Sept. 29, 2021), https://www.americanprogress.org/article/ new-poverty-food-insecurity-data-illustrate-persistent-racial-inequities/ [https://perma.cc/ZCG2-FJ7N]. In 2021, Black and Hispanic households were twice as likely as white households to experience food insecurity. Id. For U.S. immigrants from Mexico and West Africa, immigrant status also indicates a lower likelihood of achieving food security. Joshua Berning, Caroline Norris & Rebecca Cleary, Food Insecurity Among Immigrant Populations in the United States, 15 Food Sec. 41 (2023); Feeding Am., Map the Meal Gap 2024, at 4 (May 2024), https://www.feedingamerica.org/sites/default/files/2024-0 5/MMG%202024%20Executive%20Summary%20%281%29.pdf [https://perma.cc/57S3-KAJL] (finding Black and Latino individuals face higher rates of food insecurity than white individuals in 90 percent of U.S. counties with comparable data). These racial disparities “highlight the urgent need for targeted interventions” to combat the history of structural racism and economic disparities in the U.S. Id. ↑

45. . Mohamad Moslimani, Key Facts About the Wealth of Immigrant Households During the COVID-19 Pandemic, Pew Rsch. Ctr. (Dec. 4, 2023), https://www.pewresearch.org/short-reads/2023/ 12/04/key-facts-about-the-wealth-of-immigrant-households-during-the-covid-19-pandemic/   [https:// perma.cc/BF6B-KDS4]. While the median wealth of immigrant households increased from 2019 to 2021, its 2021 level, $104,400, is far behind that of U.S. born households—$177,200. Id. ↑

46. . Cory Turner, “Children Are Going Hungry”: Why Schools Are Struggling to Feed Students, Nat’l Pub. Radio (Sept. 8, 2020), https://www.npr.org/2020/09/08/908442609/children-are-going-hungry-why-schools-are-struggling-to-feed-students [https://perma.cc/KE8N-A4DD]. In the summer of 2020, out of thirty million students who receive free or reduced-price meals during the school year, only 15 percent of students from eligible low-income households were receiving those meals. Id. ↑

47. . Nationwide Waiver of Onsite Monitoring Requirements for State Agencies in the CACFP, USDA Food & Nutrition Serv. (Mar. 27, 2020), [https://web.archive.org/web/20251117075325/ https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-8] [hereinafter Nationwide Waiver] (available by archive link only). ↑

48. . 7 C.F.R. § 226.6(m)(6) (2026) (requiring annual onsite reviews). ↑

49. . 7 C.F.R. § 226.6(b)(1) (requiring pre-approval visits for new CACFP institutions). ↑

50. . Off. of the Legis. Auditor, State of Minn., Minnesota Department of Education: Oversight of Feeding Our Future, Special Review 44–45 (2024), https://www.auditor.leg.state. mn.us/sreview/pdf/2024-mdefof.pdf [https://perma.cc/5RUM-FFYD]. ↑

51. . Nationwide Waiver to Allow Non-Congregate Meal Service Institutions Operating the SFSP During Unanticipated School Closures in SY 2021–22, USDA Food & Nutrition Serv. (Sept. 22, 2021), [https://web.archive.org/web/20211015101826/https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-101] (available by archive link only). Before the waiver, federal regulations required meals to be served in congregate settings and consumed onsite. 7 C.F.R. § 225.6(i)(15) (2026). ↑

52. . Food insufficiency, a statistic measuring households that did not have enough to eat sometimes or often in the past seven days, reached 13.4 percent in December 2020. Food and Consumers, USDA Econ. Rsch. Serv. (Aug. 8, 2025), https://www.ers.usda.gov/covid-19/food-and-consumers#sufficiency [https://perma.cc/DJ7N-WJ3W]. Despite a fall in food insufficiency after the pandemic peak, racial and ethnic minority groups were disproportionately food insufficient in 2022. Id. (almost 20 percent for Black and American Indian households, 23 percent for Native Hawaiian and Pacific Islander, and 17 percent for Hispanic). Further, among every racial and ethnic group, food insufficiency during the same period was higher for households with children. Id. ↑

53. . Hodges et al., supra note 1. Between March and May 2020, 1.8 billion fewer meals were served than during the same period the year prior through CACFP, the National School Lunch Program, and the School Breakfast Program. Id. To partially make up for this loss, the Summer Food Service Program served 564.4 million meals during the same period—up from just 1.2 million in 2019. Id.↑

54. . Nationwide Waiver, supra note 47 (“[S]uspending onsite monitoring is vital to support social distancing.”). The waiver was extended three times, ending thirty days after the end of the federally declared public health emergency. Nationwide Waiver of Onsite Monitoring Requirements for Sponsors in the Child and Adult Care Food Program – EXTENSION, USDA Food & Nutrition Serv. (Apr. 20, 2021), [https://web.archive.org/web/20210924190051/https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-96] (available by archive link only). ↑

55. . Nationwide Waiver, supra note 47. ↑

56. . Child nutrition programs received $10.6 billion in federal funds during the Covid-19 pandemic. Pandemic Oversight: USDA COVID-19 Funding Dashboard, USDA Off. of the Inspector Gen., https://usdaoig.oversight.gov/pandemic-oversight [https://perma.cc/P8ZW-KAXW]. ↑

57. . Off. of the Legis. Auditor, supra note 50, at 10–11. ↑

58. . 7 C.F.R. § 226.10(f) (2026) (“If . . . a State agency has reason to believe that an institution . . . has engaged in unlawful acts with respect to Program operations, the evidence . . . is a basis for nonpayment of claims for reimbursement.”). ↑

59. . Partners in Nutrition v. Minn. Dep’t of Educ., 955 N.W.2d 631, 637 (Minn. Ct. App. 2023). One institution subject to the investigation challenged its termination, succeeding on appeal when the court found MDE failed to comply with the § 226 program-specific requirements for termination. Id. at 649. ↑

60. . Fahrenthold, supra note 2. ↑

61. . Id. ↑

62. . Id. After being approved by MDE as a sponsor in 2018, the IRS revoked FOF’s nonprofit status in 2020 for failing to file annual tax reports. The IRS later reinstated them. Id. ↑

63. . Id. The number of sites they sponsored grew from 116 in 2020 to 384 in 2021. Off. of the Legis. Auditor, supra note 50, at 16. But FOF never hired an accountant. Fahrenthold, supra note 2. ↑

64. . See supra text accompanying notes 47–51. Despite the relaxed requirements, the total number of CACFP day care providers declined during the pandemic. CACFP Family Day Care Home Participation Study, Nat’l CACFP Ass’n (July 5, 2024), https://www.cacfp.org/2024/07/05/cacfp-family-day-care-home-participation-study/?t [https://perma.cc/U5A4-WJPG].↑

65. . Fahrenthold, supra note 2. FOF accused MDE of discriminating against African immigrants, and successfully prevented any termination of payments. Id. Almost all the leaders of sites in the network, and subsequent defendants in federal lawsuits, were Somali-American. See Kayseh Magan, Commentary, A Somali-American Former Investigator: Why You’re Hearing About Fraud in My Community, Minn. Reformer (July 17, 2024), https://minnesotareformer.com/2024/07/17/a-somali-american-investigator-heres-why-youre-hearing-so-much-about-fraud-in-my-community/ [https://perma.cc/P7V6-RPAW]. Minnesota is home to the largest Somali population in the U.S., and Magan argues that while the lack of recognition for immigrants’ education and professional credentials may push individuals to “seek shortcuts” to make money, the opportunity for fraud stems from the failure of government controls. Id.; Steve Karnowski, 5 Things to Know About the Somali Community in Minnesota After Trump’s Attacks, PBS News (Dec. 3, 2025), https://www.pbs.org/newshour/nation/5-things-to-know-about-the-somali-community-in-minnesota-after-trumps-attacks [https://perma.cc/95 FT-ENKG]. Magan points out that MDE failed to take early regulatory action against FOF due to “feckless fear” of charges of racism or Islamophobia. Magan, supra note 65. “In June 2021, more than 100 people, mostly Somali, protested outside MDE’s office. Many held signs that read ‘F.O.F. Feeds our kids, MDE won’t’ and accused MDE of discrimination. So far, at least two people who attended that rally are among those charged.” Id. ↑

66. . OIG Report, supra note 32. ↑

67. . Fahrenthold, supra note 2 (“[The structure] creates a perverse incentive: a reason for the watchdog not to bark . . . [it] rewards sponsors that pursue bigger networks and larger checks instead of those who crack down on fraud—a problem that has been evident for decades.”). Fahrenthold critiques CACFP’s structure, writing: “States and the federal government count on groups like Feeding Our Future to guard against corruption—even as the system incentivizes the organizations to push more money out the door by giving them a cut of it.” Id. “[T]he case has highlighted how the government’s reliance on nonprofits to help carry out an array of programs can increase vulnerability to fraud.” Id. ↑

68. . U.S. Dep’t of Just., supra note 5. ↑

69. . Press Release, U.S. Dep’t of Just., U.S. Att’y’s Off., Dist. of Minn., 78th Defendant Charged in Feeding Our Future Fraud Scheme (Nov. 24, 2025), https://www.justice.gov/usao-mn/pr/78th-defendant-charged-feeding-our-future-fraud-scheme [https://perma.cc/U5P5-4JDK]. For an updated list of the seventy-eight defendants and their roles in the fraud, see Hibah Ansari, Who’s Been Charged in the Feeding Our Future Food Fraud Investigation?, Sahan J. (Dec. 1, 2025), https://sahanjournal.com/ news/feeding-our-future-indictments-who-charged-food-fraud-minnesota/ [https://perma.cc/L87N-DZGR]. ↑

70. . David A. Fahrenthold, Justice Dept. Charges 48 in Brazen Pandemic Aid Fraud in Minnesota, N.Y. Times (Sept. 20, 2022), https://www.nytimes.com/2022/09/20/us/politics/pandemic-aid-fraud-minnesota.html [https://perma.cc/ZZA5-ETYH] (“When pandemic-relief programs flooded the programs with money, [Bock] exploited her position to bring in nearly 200 new feeding operations she knew were submitting fake or inflated invoices. . . . In effect, Feeding Our Future operated a pay-to-play scheme in which individuals seeking to operate fraudulent sites under the sponsorship of Feeding Our Future had to kick back a portion of their fraudulent proceeds.”). ↑

71. . Verdict Form, United States v. Bock, No. 22-CR-00223 (D. Minn. Mar. 19, 2025); Press Release, U.S. Dep’t of Just., U.S. Att’y’s Off., Dist. of Minn., Federal Jury Finds Feeding Our Future Mastermind and Co-Defendant Guilty in $250 Million Pandemic Fraud Scheme (Mar. 19, 2025), https://www.justice.gov/usao-mn/pr/federal-jury-finds-feeding-our-future-mastermind-and-co-defendant-guilty-250-million [https://perma.cc/KCE5-QE6B]. ↑

72. . Verdict Form, United States v. Farah, No. 22-cr-00124 (D. Minn. June 7, 2024); Press Release, U.S. Dep’t of Just., U.S. Att’y’s Off., Dist. of Minn., Five Defendants Found Guilty for Their Roles in $250 Million Fraud Scheme (June 7, 2024), https://www.justice.gov/usao-mn/pr/five-defendants-found-guilty-their-roles-250-million-fraud-scheme [https://perma.cc/Y39R-738C]. ↑

73. . Superseding Indictment, United States v. Farah, 2022 WL 4386810 (D. Minn. Sept. 13, 2022) (No. 22-124). See infra Part II for a discussion of 18 U.S.C. § 666 and federal programs bribery. ↑

74. . Id. at ¶¶ 27, 47, 135–51. ↑

75. . Id. at ¶ 45 (alleging the defendants made “extravagant purchases for their personal use” including real estate in Minnesota, Ohio, and Kenya, multiple vehicles, and trips to Dubai, Kenya, and Turkey). ↑

76. . Ernesto Londoño & David A. Fahrenthold, 5 Convicted in Federal Fraud Trial Imperiled by a Gift Bag of Cash, N.Y. Times (June 7, 2024), https://www.nytimes.com/2024/06/07/us/federal-fraud-trial-minnesota.html [https://perma.cc/Q2VA-MYUC]. ↑

77. . Kelly Smith, ‘There Was Money Everywhere’: Feeding Our Future Employee Testifies He Took Kickbacks, Didn’t Check Meal Sites, Minn. Star Trib. (May 8, 2024), https://www.startribune. com/feeding-our-future-employee-testifies-he-took-kickbacks-didnt-check-meal-sites-in-get-rich-scheme/600364571 [https://perma.cc/LC3A-4GDR]. Hadith Ahmed, an assistant to Bock, FOF’s executive director, testified that “[e]veryone wanted to get involved with Feeding Our Future” because “[i]t was booming.” Id. Ahmed started a consulting company to conceal the kickbacks he received from sites and made $2 million in less than a year. Id. “People were submitting whatever they wanted . . . . We were not visiting sites . . . . We were all taking kickbacks at that time.” Id. ↑

78. . Kelly Smith, Prosecutors in Feeding Our Future Trial to Rest Their Case This Week After Calling More than 30 Witnesses, Minn. Star Trib. (May 26, 2024), https://www.startribune.com/ prosecutors-in-feeding-our-future-trial-rest-their-case-this-week-after-calling-more-than-30-witnesses-in-brazen-fraud-scheme/600368798 [https://perma.cc/6HBQ-CJXZ]. Defendants also attacked prosecutors for their “lack of knowledge of East African business culture.” Id. ↑

79. . Joey Peters, Here’s a List of Everyone Who Has Been Convicted in the Feeding Our Future Case, Sahan J. (Dec. 1, 2025), https://sahanjournal.com/public-safety/feeding-our-future-food-aid-fraud-investigation-guilty-pleas/ [https://perma.cc/QL9G-QGH4]. ↑

80. . Katrina Pross, Here’s Everyone Who’s Been Sentenced in the Feeding Our Future Fraud, Sahan J. (Dec. 1, 2025), https://sahanjournal.com/public-safety/who-has-been-sentenced-feeding-our-future/ [https://perma.cc/XQ3V-QSA3]. In an unexpected twist, the court in Farah dismissed a juror after an individual dropped $120,000 in cash at the juror’s home with a note asking them to find the defendants not guilty on all counts. Indictment, United States v. Farah, No. 24-cr-00173 (D. Minn. June 25, 2024) (charging five individuals with conspiracy to bribe a juror); Stephen Montemayor & Kelly Smith, New Charges: Feeding Our Future Juror Was Followed for Days, Given List of Instructions with $120k in Cash to Acquit, Minn. Star Trib. (June 26, 2024), https://www.startribune.com/new-charges-feeding-our-future-juror-was-followed-for-days-given-list-of-instructions-with-120k-in-cash-to-acquit/600376357 [https://perma.cc/SRV9-UW7F]. Prosecutors allege the defendants recruited a woman to fly from Seattle to follow a juror from the courthouse with the cash she then left at the juror’s home. Kelly Smith & Stephen Montemayor, Feeding Our Future Attempted Bribery Case Could Affect Other Trials in Minnesota, Minn. Star Trib. (June 28, 2024), https://www.startribune.com/feeding-our-future-attempted-bribery-case-could-affect-other-trials-in-minnesota/600377015 [https://perma.cc/ ULK6-BY4Q]. Some fear this incident could increase the challenge of finding jurors for the remaining FOF trials because many residents likely formed opinions on the case. Id. ↑

81. . Indictment, United States v. Abukar, No. 23-CR-00080 (D. Minn. Mar. 7, 2023). Just two years before her indictment, Abukar won an “outstanding refugee award” for her work founding health care clinics for Minnesota’s East African community. Deena Winter, Prominent Bloomington Woman’s Nonprofit Claimed to Feed 6,400 Children Per Day, Minn. Reformer (Oct. 31, 2022), https://minnesot areformer.com/2022/10/31/prominent-bloomington-womans-nonprofit-claimed-to-feed-6400-children-per-day/ [https://perma.cc/B66V-W9JP]. She founded the nonprofit Action for East African People, which ran several distribution sites sponsored by FOF. Id. But her indictment alleges that she sent kickbacks of over $330,000 to an FOF employee to maintain her sites’ sponsored status. Press Release, U.S. Dep’t of Just., U.S. Att’y’s Off., Dist. of Minn., U.S. Attorney Announces Federal Charges Against 10 Additional Defendants in $250 Million Feeding Our Future Fraud Scheme (Mar. 13, 2023), https:// http://www.justice.gov/usao-mn/pr/us-attorney-announces-federal-charges-against-10-additional-defendants-250-million [https://perma.cc/D55W-V8DU%5D. Abukar pleaded guilty to one count of conspiracy to commit wire fraud in January 2025. Press Release, U.S. Dep’t of Just., U.S. Att’y’s Off., Dist. of Minn., Savage Woman Pleads Guilty for Her Role in $250 Million Feeding Our Future Fraud Scheme (Jan. 24, 2025), https://www.justice.gov/usao-mn/pr/savage-woman-pleads-guilty-her-role-250-million-feeding-our-future-fraud-scheme [https://perma.cc/LZH8-FP28]. ↑

82. . Superseding Indictment, supra note 73, at ¶ 45. ↑

83. . Off. of the Legis. Auditor, supra note 50. A State Senate committee also released a report, concluding: “MDE practiced questionable business practices that would seldom survive in a work environment that provided real accountability.” Minn. Senate Educ. Fin. and Pol’y Comm., Interim Findings (2022). ↑

84. . Off. of the Legis. Auditor, supra note 50, at 4 (finding MDE did not act on warning signs and failed to exercise its authority to enforce CACFP program requirements). ↑

85. . Id. at ­­77 (recommending legislative criteria for MDE to consider when approving CACFP organizations and “more active follow-up to ensure sponsors and sites fully implement corrective action plans that result from serious deficiency processes”). ↑

86. . Ryan Faircloth, Fraud Fight Brewing in 2026 Campaigns as Investigations Stack Up, Minn. Star Trib. (Oct. 20, 2025), https://www.startribune.com/fraud-fight-brewing-in-2026-campaigns-as-investigations-stack-up/601496060 [https://perma.cc/MM3Y-JSPH]. Facing national pressure in relation to fraud within several social services programs, Walz dropped his reelection campaign in January 2026. Press Release, Off. of Governor Tim Walz, Governor Walz Statement Announcing He Will Not Seek Reelection (Jan. 5, 2026), https://mn.gov/governor/newsroom/press-releases/?id=1055-718148 [https://perma.cc/B85X-G3CV]. ↑

87. . Since 2020, and within multiple social services programs, federal prosecutors have convicted fifty-nine people in schemes totaling over $1 billion in public funds. Ernesto Londoño, How Fraud Swamped Minnesota’s Social Services on Tim Walz’s Watch, N.Y. Times (Jan. 7, 2026), https://www. nytimes.com/2025/11/29/us/fraud-minnesota-somali.html [https://perma.cc/8F4B-6AZM]. ↑

88. . Referring to Somalia, where many of the convicted individuals, or their families, are from, President Trump said: “When they come from hell and they complain and do nothing but bitch, we don’t want them in our country. Let them go back to where they came from and fix it.” Zolan Kanno-Youngs & Shawn McCreesh, Trump Calls Somalis ‘Garbage’ He Doesn’t Want in the Country, N.Y. Times (Dec. 2, 2025), https://www.nytimes.com/2025/12/02/us/politics/trump-somalia.html [https://perma.cc/ YDX8-M82S]. Notably, President Trump did not mention that Aimee Bock, the convicted “mastermind” of the FOF scheme, is white. See U.S. Att’y’s Off., Dist. Of Minn., supra note 71. ↑

89. . Tim O’Malley, the man selected for the position, is a former FBI agent, and served under Minnesota’s former Republican governor as superintendent of the state’s Bureau of Criminal Apprehension. Press Release, Off. of Governor Tim Walz, Governor Walz Announces Tim O’Malley to Serve as Director of Program Integrity (Dec. 12, 2025), https://mn.gov/governor/newsroom/press-releases/?id=1055-716178 [https://perma.cc/9ZV5-JKZ8]. ↑

90. . Child Nutrition Program Integrity, 7 C.F.R. pts. 210, 215, 220, 225, 226, 235 (2026). ↑

91. . 7 C.F.R. § 226.6(c)(2)(ii)(A)–(I) (2026). The state agency may deny the application of a new institution, or the renewal of an existing one, for the submission of false information, fraud, a sponsor’s failure to train or monitor sponsored sites, or to perform its financial and administrative responsibilities. Id. ↑

92. . 7 C.F.R. § 226.15(e) (2026) (outlining recordkeeping requirements). In response to fraud allegations within several of Minnesota’s social services programs in December 2025, the U.S. Department of Health and Human Services announced it would freeze aid to the state’s child care centers. Tim Balk & Ernesto Londoño, Health Dept. Pauses Child Care Funding to Minnesota, Citing State’s Fraud Scandal, N.Y. Times (Dec. 30, 2025), https://www.nytimes.com/2025/12/30/us/politics/ hhs-minnesota-funds-day-care-fraud.html [https://perma.cc/Q4BC-K5G3]. ↑

93. . Stop Fraud in Federal Programs Act of 2024, H.R. 8584, 118th Cong. (2024). The proposed bill would raise the maximum prison time to twenty years and raise fines to the greater of $250,000 or two times the value of the property fraudulently obtained. Id. at 2. ↑

94. . Press Release, Congresswoman Angie Craig, Nearly One Year After Feeding Our Future Crimes Uncovered, Rep. Angie Craig Introduces Bill to Crack Down on Future Fraud (Aug. 7, 2023), https://craig.house.gov/media/press-releases/nearly-one-year-after-feeding-our-future-crimes-uncovered-rep-angie-craig [https://perma.cc/JB22-JG7S]. Representative Craig summarized the purpose of the bill: “[w]e need to do more to discourage future criminals and increase our efforts to protect taxpayer dollars.” Id.; see also Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169 (1968) (discussing the economic approach to criminal punishment and enforcement based on, among other factors, the cost of punishment and social harm from the offense). In determining the optimal punishment, Becker’s theory recognizes that an offender with significant resources may rationally turn to bribery to avoid prison time. Id. at 195. Deterring corruption would require increased punishment and enforcement to ensure that bribery is likely to be caught and is therefore not worth the cost. Id. ↑

95. . Bethany Jana, Kaitlyn Loefstedt, Maihan Vu, Dianne Ward & Temitope Erinosho, “It Has a Lot to Do with the Cumbersome Paperwork”: Barriers and Facilitators of Center-Based Early Care and Education Program Participation in the Child and Adult Care Food Program, 123 J. Acad. Nutrition & Dietetics 1173, 1176 (2023) (finding CACFP’s “cumbersome paperwork, eligibility requirements, [and] penalties for noncompliance” slowed participation in the program). Researchers interviewed sponsors, who discussed their fear of punitive rules for noncompliance and the “intimidating” application process. Id.; see also Temitope Erinosho, Bethany Jana, Kaitlyn Loefstedt, Maihan Vu & Dianne Ward, Facilitators and Barriers to Family Child Care Home Participation in the U.S. Child and Adult Care Food Program (CACFP), 30 Preventative Med. Reps., Oct. 2022, art. no. 102022, at 6 (adding that the perception of time-consuming paperwork requirements prevents understaffed organizations from participating). ↑

96. . Brittany Walsh, Linda Smith & Katherine Mercado, Bipartisan Pol’y Ctr., Integrated Efficient Early Care and Education Systems 4 (2023) (“Congress claimed that more children and families could be served if the states used federal funds more efficiently, and state officials complained that the federal government was the source of inefficiencies because of over-regulation.”). ↑

97. . Nonprofit sponsors must implement federal regulations under financial distress and with imperfect information on how to best implement federal policy. See Nat’l Council of Nonprofits, Nonprofit Impact Matters: How America’s Charitable Nonprofits Strengthen Communities and Improve Lives 24 (2019) (finding 65 percent of nonprofits that serve low income communities struggle to meet demand). For an analogous discussion of regulatory inefficiencies in the financial sector, see Michael Morelli, Managing Relative Regulatory Inefficiencies in Complex Financial Systems, 25 U. Pa. J. Bus. L. 705 (2023). In the financial sector, information asymmetry between regulators, financial institutions, and the public creates inefficiencies as firms “lack the information needed to design, implement, and monitor new regulatory requirements effectively and efficiently.” Id. at 755. ↑

98. . JT Alston, Note, The Nonprofit Sector’s Uncertain Future in a Post-TCJA America, 2018 BYU L. Rev. 859, 863 (arguing that charities solve social problems and “fill gaps the government cannot fill,” thereby relieving the federal government of costs). ↑

99. . Letter from Virginia Foxx, Chairwoman, H. Comm. on Educ. and the Workforce, to Tim Walz, Governor, State of Minn. (Sept. 4, 2024) (“[T]he actions taken by you [Governor Walz] and other executive officers were insufficient to address the massive fraud.”). Committee members requested documents and communications between Governor Walz’s office and MDE regarding FOF, and documents and communications regarding the Refugee Award he presented to subsequent defendant Ayan Abukar in 2021. Id.; see supra note 81 and accompanying text. ↑

100. . Ernesto Londoño, Six Prosecutors Quit Over Push to Investigate ICE Shooting Victim’s Widow, N.Y. Times (Jan. 15, 2026), https://www.nytimes.com/2026/01/13/us/prosecutors-doj-resignati on-ice-shooting.html [https://perma.cc/7FQA-VMHV]. In addition to Joe Thompson, the lead FOF prosecutor, the resignations included senior attorneys leading the prosecution of an individual charged with killing a state representative in summer 2025 and the lead investigator in racketeering cases against gang members. Jeff Day, Sarah Nelson & Jeffrey Meitrodt, Mass Resignation at Minnesota’s U.S. Attorney’s Office Stems from Renee Good Shooting, Investigation, Minn. Star Trib. (Jan. 13, 2026), https://www.startribune.com/joe-thompson-us-attorney-who-uncovered-massive-fraud-in-minnesota-resigns-from-office/601563206 [https://perma.cc/9TFF-EGBN]. ↑

101. . Londoño, supra note 100. Minneapolis police chief Brian O’Hara recognized the hypocrisy in the decisions from DOJ leadership that led to these resignations: “When you lose the leader responsible for making the fraud cases, it tells you [increased immigration enforcement among Minnesota’s Somali community] isn’t really about prosecuting fraud.” Id. ↑

102. . United States v. Levine, 129 F.2d 745, 748 (2d Cir. 1942) (affirming federal bribery conviction against low level official in a federal Milk Marketing program). ↑

103. . Dixson v. United States, 465 U.S. 482, 501 (1984) (affirming federal bribery conviction against executive director of a nonprofit under 18 U.S.C § 201). ↑

104. . Sabri v. United States, 541 U.S. 600, 608 (2004) (upholding the constitutionality of the federal programs bribery statute as a valid exercise of congressional authority). Prosecutors indicted Sabri under § 666 for bribing a city councilman to gain regulatory approval for construction projects. Id. at 603. ↑

105. . See, e.g., United States v. Burke, No. 19-CR-322, 2024 WL 3090277, at *23 (N.D. Ill. June 21, 2024) (upholding jury verdict against former Chicago alderman under § 666 for, among other offenses, accepting legal work valued at over $5,000 in exchange for granting a pole sign permit). ↑

106. . See 3 Edward Coke, Institutes of the Laws of England 145 (London, M. Flesher 1644) (“[A] great [misprision] . . . when any man in [judicial] place takes any fee . . . that hath to do before him any way, for doing his office . . . .”); 4 William Blackstone, Commentaries *78–79 (1769) (describing bribery as “when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behavior in his office”). Blackstone also proscribes embracery, the attempt to bribe a juror, recommending its punishment as “perpetual infamy, imprisonment for a year, and forfeiture of the tenfold value.” Id.; see, e.g., Montemayor & Smith, supra note 80 (investigating charges for attempted bribery of a juror in the FOF trial). ↑

107. . U.S. Const. art II, § 4. The Framers recognized two discrete crimes as grounds for impeachment, bribery and treason, along with the more ambiguous “other high Crimes and Misdemeanors.” Id. ↑

108. . Crimes Act of 1790, ch. 9, § 21, 1 Stat. 112, 117. The First Congress prohibited bribery of federal judges, issuing punishments of fines, prison time, and disqualification from office for the judge. Id. Congress later extended the prohibition to other federal officials. An Act to Prevent Frauds upon the Treasury of the United States, ch. 81, § 6, 10 Stat. 170 (1853); see also G. Robert Blakey & Ronald Goldstock, The Investigation and Prosecution of Organized Crime and Corrupt Activities 47 n.136 (G. Robert Blakey ed. 1977). ↑

109. . 18 U.S.C. §§ 201, 666. ↑

110. . S. Rep. No. 98-225, at 369–70 (1984) (Congress enacted § 666 to “protect the integrity of the vast sums of money distributed through federal programs . . . .”); Dixson v. United States, 465 U.S. 482, 491 (1984) (Congress enacted § 201 “as part of an effort to reformulate and rationalize all federal criminal statutes dealing with the integrity of government”). ↑

111. . 18 U.S.C. § 666(a)(2) (“[C]orruptly gives, offers, or agrees to give anything of value to any person, with intent to influence . . . .”). ↑

112. . Like § 666, § 201(b), which criminalizes bribery, requires corrupt intent. U.S. Dep’t of Just., Crim. Res. Manual § 2041 (2019). However, § 201(c), which prohibits illegal gratuities, requires only general intent. Id. While the prosecutorial burden for gratuities is lower, the associated punishment is also less severe. 18 U.S.C. § 201(b)–(c) (punishing gratuities with fines and up to two years imprisonment; individuals convicted of bribery under the statute are subject to fines, up to fifteen years imprisonment, and disqualification from office). ↑

113. . 18 U.S.C. § 201(a). ↑

114. . Id.; see, e.g., United States v. McDade, 827 F. Supp. 1153 (E.D. Pa. 1993) (charging a member of Congress); United States v. Espy, 23 F. Supp. 2d 1 (D.D.C. 1998) (charging a federal agency head). ↑

115. . See United States v. Levine, 129 F.2d 745 (2d Cir. 1942) (extending a 1909 anti-bribery statute to prosecute a low-level federal program official). Debating § 201, the House Judiciary Committee cited Levine “as an example of how the judiciary had in the past properly construed the federal bribery laws.” Dixson v. United States, 465 U.S. 482, 494–95 (1984) (quoting H.R. Rep No. 748, at 18 (1961)). ↑

116. . Dixson, 465 U.S. at 501. ↑

117. . Id. at 499–500. ↑

118. . Id. at 484–85. ↑

119. . Id. at 500. “By accepting the responsibility for distributing these federal fiscal resources, petitioners assumed the quintessentially official role of administering a social service program established by the United States Congress.” Id. at 497. ↑

120. . See supra Section I.B. Defendants owned and operated meal distribution sites, funded by the USDA and sponsored by FOF. Id. ↑

121. . Superseding Indictment, supra note 73. ↑

122. . S. Rep. No. 98-225, at 369–70 (1984); see also Richard W. Garnett, The New Federalism, the Spending Power, and Federal Criminal Law, 89 Cornell L. Rev. 1, 40–46 (2003). Dixson initially settled the circuit split as to whether § 201 applied to local officials. The enactment of § 666 cemented this expansion of federal bribery law. United States v. Hamilton, 46 F.4th 389, 394 (5th Cir. 2022) (explaining the circuit split and subsequent legislation expanding federal enforcement). ↑

123. . 18 U.S.C. § 666(b). Given the $1.3 trillion the federal government disbursed to state and local governments in 2021, this threshold covers every state official and a significant number of local ones. Which States Rely the Most on Federal Aid?, USA Facts (Aug. 1, 2024), https://usafacts.org/ articles/which-states-rely-the-most-on-federal-aid/ [https://perma.cc/6RHK-YNVW]. ↑

124. . 18 U.S.C. § 666(b); see also Garnett, supra note 122, at 67 (describing the “jurisdictional hook” of § 666 as “the flow of federal dollars in pursuit of the general welfare”). ↑

125. . See Daniel N. Rosenstein, Note, Section 666: The Beast in the Federal Criminal Arsenal, 39 Cath. U. L. Rev. 673, 687–89 (1990). ↑

126. . See supra Section I.B. ↑

127. . 18 U.S.C. § 666(a)(1). ↑

128. . Id. at (a)(2). ↑

129. . 603 U.S. 1, 14 (2024). ↑

130. . Rosenstein, supra note 125, at 673–74. ↑

131. . 605 F.3d 1152, 1184–88 (11th Cir. 2010) (“[T]he government is not required to tie or directly link a benefit or payment to a specific official act by that County employee.”). In McNair, the court affirmed the convictions of public officials, and the owners of corporate contractors, when the indictment “list[ed] the items of value received or given by the defendants” without alleging a quid pro quo. Id. at 1185–86, 1188. ↑

132. . Id. at 1188 (quoting 18 U.S.C. § 666(a)(2)). ↑

133. . 46 F.4th 389, 397 (5th Cir. 2022) (“[B]oth § 201(b) and § 666(a) cover only quid pro quo bribery.”). ↑

134. . 603 U.S. 1 (2024). ↑

135. . Id. at 9. ↑

136. . Id. at 18. In dissent, Justice Jackson discusses the historic definition of the term “rewarded,” which she argues should “encompass payment in recognition of an action that an official has already taken or committed to taking.” Id. at 25 (Jackson, J., dissenting). ↑

137. . Id. at 18–19 (majority opinion). ↑

138. . Id. at 18–20. ↑

139. . See supra Section I.B. ↑

140. . See Nestor M. Davidson, Relational Contracts in the Privatization of Social Welfare: The Case of Housing, 24 Yale L. & Pol’y Rev. 263, 263 (2006) (discussing the tension between the “experience, efficiency, and diversity of the private sector” and the public norms, values, and accountability of public entities). ↑

141. . In addition to Covid-era social programs, see, for example, Hurricane Katrina Fraud Task Force, U.S. Dep’t of Just., Fifth Anniversary Report to the Attorney General (2010) (summarizing, among other incidents, federal bribery charges against a city councilman and construction contractor involving federal reconstruction funds), https://www.justice.gov/sites/default/files/criminal-disasters/legacy/2012/07/30/09-13-10katrinaprogress-report.pdf [https://perma.cc/7TX4-76TF]. ↑

142. . Snyder v. United States, 603 U.S. 1, 20 (2024) (limiting § 666 to bribery, not illegal gratuities); see also supra Section II.B (discussing the case). ↑

143. . Snyder, 603 U.S. at 14 (asserting that the variety of state and local approaches to enforcement “reflect nuanced state and local policy judgments about when gifts expressing appreciation to public officials for their past acts cross the line from the innocuous to the problematic”). ↑

144. . See id. In his majority opinion, Justice Kavanaugh is concerned that under an expansive construction of § 666, a meticulously compliant public official could be prosecuted despite following state and local gratuities laws. Id. ↑

145. . For an analogous discussion of deregulation in the financial sector, see Lynn A. Stout, Derivatives and the Legal Origin of the 2008 Credit Crisis, 1 Harv. Bus. L. Rev. 1, 22–23 (2011) (arguing that the deregulation of certain financial derivatives in 2000 contributed to the 2008 financial crisis). ↑

146. . Snyder, 603 U.S. at 15. ↑

147. . See supra Section I.B. ↑

148. . Alston, supra note 98, at 888–90 (describing how stories about nonprofit fraud create skepticism in Congress and therefore less favorable tax policies for nonprofits). ↑

149. . James Clotfelter, Enabling Public Service, 62 L. & Contemp. Probs. 257, 263 (1999). ↑

150. . Kelly Smith, More Minnesota Nonprofits Are Facing Financial Crisis than Any Year Since 2020, Minn. Star Trib. (Sept. 19, 2024), https://www.startribune.com/more-minnesota-nonprofits-are-facing-financial-crisis-than-any-year-since-2020/601147438 [https://perma.cc/VHY8-53S2]; Kelly Smith, Feeding Our Future Fraud Investigation Casts Scrutiny on Minnesota Nonprofits, Minn. Star Trib. (Dec. 27, 2022), https://www.startribune.com/feeding-our-future-fraud-investigation-casts-scrutiny-on-minnesota-nonprofits/600238797 [https://perma.cc/R3KZ-CWWZ]. ↑

151. . FACT SHEET: The President’s Budget Creates Opportunity, Advances Equity, White House (Mar. 11, 2024), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2024/ 03/11/fact-sheet-the-presidents-budget-creates-opportunity-advances-equity/ [https://perma.cc/D76S-KV9Q] (reiterating President Biden’s commitment to “Public Participation and Community Engagement in Government Decision Making” and its goal of ensuring underserved communities help “inform and shape the design and delivery of Federal programs, policies, and services”). ↑

152. . These rules also invoke Justice Kavanaugh’s fair notice concern. See Snyder v. United States, 603 U.S. 1, 15–16 (2024). Just as a mayor may lack knowledge of federal law, low-level nonprofit staff may not understand program regulations but could still be punished for seemingly innocuous errors. ↑

153. . Id. at 15. ↑

154. . Id. at 14. Assuming Justice Kavanaugh did not include nonprofit employees administering federal programs in his count of state and local officials, nineteen million “local officials” may undercount the number of people subject to § 666 enforcement. ↑

155. . While state agencies cannot be expected to prevent all crime, which occurs even in well-regulated industries, MDE failed to act on known warning signs. Off. of the Legis. Auditor, supra note 50, at 4. ↑

156. . Snyder, 603 U.S. at 40 (Jackson, J., dissenting) (“[I]t appears that the real bone the majority has to pick with § 666 is its concern about overregulation . . . .”). ↑

157. . 31 U.S.C. § 3729. ↑

158. . 31 U.S.C. § 3730(b)(1) (“A person may bring a civil action for a violation of section 3729 for the person and for the United States Government.”). ↑

159. . 31 U.S.C. § 3730(d). The relator is entitled to 15–25 percent of proceeds if the government intervenes, and 25–30 percent of proceeds if the government does not. Id. ↑

160. . 31 U.S.C. § 3729(a)(1). The conspiracy provision is relevant to schemes like FOF, as it subjects to enforcement individuals who conspired with those who submitted false claims. ↑

161. . John C. Kunich, Qui Tam: White Knight or Trojan Horse, 33 A.F. L. Rev. 31 (1990). Ten of the country’s first fourteen federal statutes with penalties included qui tam provisions. Id. at 31; see, e.g., Act of Mar. 1, 1790, ch. 2, § 3, 1 Stat. 101, 102 (creating a cause of action for an “informer” against marshals for improper census taking). ↑

162. . Kunich, supra note 161, at 31–32, 32 n.6. President Lincoln signed the FCA into law in 1863 to address “war profiteering” by federal contractors who cheated the Union Army out of resources. Act of Mar. 2, 1863, ch. 67, 12 Stat. 696. ↑

163. . Kunich, supra note 160, at 31–32, 32 n.6. ↑

164. . See Hurricane Katrina Fraud Task Force, supra note 141 (discussing fraud after Hurricane Katrina). ↑

165. . Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. No. 99-646, § 59(a), 100 Stat. 3592, 3612–13. ↑

166. . False Claims Amendments Act of 1986, Pub. L. No. 99-562, § 2, 100 Stat. 3153, 3153–54 (permitting qui tam actions based on information in the hands of the United States). Still, suits are limited by the public disclosure exception. 31 U.S.C. § 3730(e)(4) (prohibiting qui tam suits based on public allegations unless the relator is the direct or independent source of the information and voluntarily gives it to the United States). ↑

167. . 31 U.S.C. § 3729(a)(1) (imposing a civil penalty between $5,000 and $10,000, “plus 3 times the amount of damages which the Government sustains”); see, e.g., Press Release, U.S. Dep’t of Just., Off. of Pub. Affs., GlaxoSmithKline to Plead Guilty and Pay $3 Billion to Resolve Fraud Allegations and Failure to Report Safety Data (July 2, 2012), https://www.justice.gov/archives/opa/pr/glaxosmith kline-plead-guilty-and-pay-3-billion-resolve-fraud-allegations-and-failure-report   [https://perma.cc/ 54PC-8X7K].

     ↑

168. . See Kunich, supra note 161, at 45 (“Congress envisioned a vastly increased number of eyes and ears ever-vigilant for fraudulent conduct.”). ↑

169. . According to classical deterrence theory, a punishment’s certainty, swiftness, and proportionality deters lawbreaking. Kelli D. Tomlinson, An Examination of Deterrence Theory: Where Do We Stand?, Fed. Probation, Dec. 2016, at 33, 33. Still, there are many factors motivating crime and the empirical evidence on the classical theory is “murky.” Id. at 35. ↑

170. . See, e.g., Superseding Indictment, supra note 73 (alleging wire fraud, federal programs fraud and bribery, and money laundering). ↑

171. . Prosecutors characterized the scheme as an “egregious plot to steal public funds meant to care for children in need,” indicating their interest in pursuing criminal penalties. U.S. Dep’t of Just., supra note 5. Prosecutors seemingly could have alleged FCA violations, given the allegations that, among other things, the defendants submitted false attendance rosters to their sponsor, who then submitted reimbursement claims to MDE. Id. (prosecutors alleged one site submitted an attendance roster using names from “www.listofrandomnames.com”). ↑

172. . See Fahrenthold, supra note 2; supra text accompanying notes 65–71 (explaining that MDE raised suspicions about FOF in 2020—two years before DOJ brought charges). ↑

173. . Smith, supra note 78. ↑

174. . 31 U.S.C. § 3730(h) (protecting employees, contractors, or agents from retaliation for lawful acts done to further an FCA claim). Most relators are current or former employees with “an insider’s perspective on the wrongdoing,” making protections necessary to stop employers from silencing those with knowledge of fraud. Bryan Lemons, An Overview of “Qui Tam” Actions, Fed. L. Enf’t Training Ctrs. Congress added these protections in 1986 with two goals: (1) “halt companies and individuals from using the threat of economic retaliation to silence ‘whistleblowers’” and (2) “assure those who may be considering exposing fraud that they are legally protected from retaliatory acts.” S. Rep. No. 99-345, at 34 (1986). ↑

175. . Relators earned $400 million in 2024. Press Release, U.S. Dep’t of Just., Off. of Pub. Affs., False Claims Act Settlements and Judgments Exceed $2.9B in Fiscal Year 2024 (Jan. 15, 2025), https:/ /www.justice.gov/archives/opa/pr/false-claims-act-settlements-and-judgments-exceed-29b-fiscal-year-2024 [https://perma.cc/58KY-8FGT]. ↑

176. . See, e.g., Bribery, Kickbacks & Bid Rigging, Whistleblower L. Collaborative, https:// http://www.whistleblowerllc.com/what-we-do/government-program-fraud/bribes-kickbacks-bid-rigging/ [https://perma.cc/ZY4E-FPFR]. ↑

177. . See discussion supra Section I.B. ↑

178. . S. Rep. No. 99-345, at 2 (1986). ↑

179. . U.S. Dep’t of Agric., Office of Inspector General Organization and Procedures, DR 1700-002, at 5–6 (Jan. 13, 2023) (outlining reporting channels and procedures). ↑

180. . See United States ex rel. Marcus v. Hess, 317 U.S. 537, 541 n.5 (1943) (“[O]ne of the least expensive and most effective means of preventing frauds on the Treasury is to make the perpetrators of them liable to actions by private persons acting . . . under the strong stimulus of personal ill will or the hope of gain” (quoting United States v. Griswold, 24 F. 361, 366 (D. Or. 1885))); see also United States ex rel. Harman v. Trinity Indus., Inc., 872 F.3d 645, 669 (5th Cir. 2017) (explaining the purpose of qui tam suits: “drawing upon private litigation to protect public coffers”); S. Rep. No. 99-345, at 2 (1986) (“[O]nly a coordinated effort of both the Government and the citizenry will decrease this wave of defrauding public funds.”). ↑

181. . But see Lemons, supra note 174, at 2 (“[A]s a practical matter, extensions are often liberally granted.”); 31 U.S.C. § 3730(b)(3) (“The Government may, for good cause shown, move the court for extensions of the time.”). ↑

182. . See Kunich, supra note 161, at 44 (“[A] qui tam action may surface at a suboptimal point in time from the Government’s perspective. When unfettered by private enforcement actions, the DOJ is generally free to choose the most advantageous moment to initiate proceedings.”). ↑

183. . 31 U.S.C. § 3730(e)(4) (requiring a relator basing their suit on public allegations to be the direct or independent source of the information and to voluntarily provide it to the U.S.). ↑

184. . 31 U.S.C. § 3730(c)(2)(A)–(C) (empowering the DOJ to limit the relator’s participation when it would “interfere with or unduly delay the Government’s prosecution of the case”). DOJ may also dismiss a case after a hearing and may agree to a “fair, adequate, and reasonable” settlement over the relator’s objections. Id. Finally, the Government can limit the witnesses, length of testimony, cross-examinations, and “otherwise limit[] the [relator’s] participation . . . in the litigation.” Id. § 3730(c)(2)(C)(i)–(iii); Kunich, supra note 161, at 50 (“[I]f the statutory safeguards against frivolous actions work as planned, qui tam suits may be the ultimate pro-government claim.”). ↑

185. . 31 U.S.C. § 3729(a)(1)(C). ↑

186. . Id. § 3729(a)(1)(B). In the FOF cases, prosecutors could argue the sponsor’s failure to identify false meal counts caused the submission of false claims to a federal agency. See supra Section I.B. Establishing this causal link would be a lower burden than establishing criminal conspiracy, which requires an agreement and a wrongful act violating the FCA. See United States ex rel. Westmoreland v. Amgen, Inc., 738 F. Supp. 2d 267, 280 (D. Mass. 2010) (applying “general civil conspiracy principles” to the FCA). ↑

187. . This includes claims made to “a contractor, grantee, or other recipient” who is reimbursed by the federal government to spend the money “on the Government’s behalf or to advance a Government program or interest.” 31 U.S.C. § 3729(b)(2)(A)(ii). ↑

188. . See United States ex rel. Greenfield v. Medco Health Solutions, Inc., 880 F.3d 89, 100 (3d Cir. 2018) (holding a qui tam plaintiff must show “some connection between a kickback and a subsequent reimbursement claim,” rejecting a defendant-friendly but-for causation standard). ↑

189. . United States v. Snyder, 603 U.S. 1, 23 (Jackson, J., dissenting) (quoting Sabri v. United States, 541 U.S. 600, 605 (2004)). ↑

190. . While FCA investigations can be extensive and may involve subpoenas, witness interviews, and oral testimony, this would allow DOJ to target its resources on legitimate claims. Memorandum from the U.S. Dep’t of Just., Government Intervention in Qui Tam (Whistleblower) Suits (June 13, 2012), https://www.justice.gov/sites/default/files/usao-edpa/legacy/2011/04/18/fcaprocess2_0.pdf [http s://perma.cc/S8TR-CYJR]. ↑

191. See Roger. A Fairfax, Jr., Delegation of the Criminal Prosecution Function to Private Actors, 43 U.C. Davis L. Rev. 411, 427–32 (2009) (describing prosecutorial discretion as a “Non-Delegable Sovereign Act. . . . unsuitable for delegation to private hands” (citing Austin Sarat & Conor Clarke, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law, 33 Law & Soc. Inquiry 387, 390 (2008))). For a discussion on the constitutionality of qui tam claims generally, see United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 442–52 (2023) (Thomas, J., dissenting).

     ↑

192. . See supra Section II.B. ↑

193. . See supra Section I.B. ↑

194. . See, e.g., 42 U.S.C. § 1766(a)(1)(B) (“The Secretary may carry out a program to assist States through grants-in-aid and other means to initiate, maintain, and expand nonprofit food service programs for children in institutions providing child care.”). ↑

195. . Child Nutrition Program Integrity, 88 Fed. Reg. 57792 (proposed Aug. 23, 2023) (codified at 7 C.F.R. pts. 210, 215, 220, 225, 226, 235 (2026)) (“FNS cannot accomplish its mission to provide access to food, a healthful diet, and nutrition education . . . without a strong and sustained effort to ensure that integrity is always a priority.”). ↑

196. . See supra Section I.A (discussing CACFP’s structure); supra text accompanying notes 18–27 (discussing the federal rules regulating CACFP institutions and state agencies). ↑

197. . For the situations triggering fines, see 7 C.F.R. § 225.18(k)(1) (2026) and supra text accompanying note 27. See also 7 C.F.R. § 210.2 (2026) (defining a School Food Authority as a “governing body which is responsible for the administration of one or more schools”). ↑

198. . 7 C.F.R. § 226.6(c)(2)(ii)(A)–(I) (2026). ↑

199. . Id. § 226.6(c)(1)(iii)(A)(5) (“[F]ailure to fully and permanently correct the serious deficiency(ies) within the allotted time will result in denial of the institution’s application and the disqualification of the institution and the responsible principals and responsible individuals.”). ↑

200. . Smaller, well-enforced, penalties can hold organizations accountable without financially crippling their effectiveness. Cf. R.M. Brown, Administrative and Criminal Penalties in the Enforcement of Occupational Health and Safety Legislation, 30 Osgoode Hall L.J. 691, 733 (1992) (arguing that administrative penalties in the occupational safety field are faster, cheaper, and more effective at achieving compliance than criminal punishment because of the lower standard of proof and ease in identifying offenders). ↑

201. Consistent enforcement should incentivize voluntary compliance, as nonprofits will seek to avoid fines and uphold their community reputation by closely overseeing their employees’ conduct. See Joel Mayer, Nonprofit Doesn’t Equal Noncompliance, N.J. Law. Mag., Apr. 2010, at 24, 27 (encouraging nonprofits to preemptively comply with federal corporate law because “[v]oluntary adoption . . . enhances the trust of various stakeholders,” including “donors whose continued generosity is in greater need in the more-challenging economic environment”).

     ↑

202. . Brown, supra note 200, at 710 (“[D]eterrence research strongly suggests that more certain punishment leads to greater compliance.”). ↑

203. . MDE, for example, failed to “exercise its authority to deny applications.” Off. of the Legis. Auditor, supra note 50, at 22. Knowing that other state agencies had been fined for their failures to oversee sponsors, a rational state agency would act more diligently to ensure the integrity of the institutions under their watch. Irrational state agencies and sponsors, while not incentivized by fear of financial penalties, may still be subject to criminal punishment. ↑

204. . Off. of the Inspector Gen., U.S. Dep’t of Agric., FY 2025 Annual Plan 5 (2024). The OIG seeks to “assess the adequacy of FNS’ CACFP meal reimbursement claims process for childcare centers” and “validate meal claims at selected sites . . . .” Id. ↑

205. . For example, by bribing a sponsor to overlook false meal counts. See supra Section I.B. ↑

206. The fear of financial penalties for mistakes by a single nonprofit employee could deter potential sites and sponsors from joining the program. Hailey Heinz et al., New Mexico Sponsors Identify Time and Money as Factors Affecting Home-Based Provider Child and Adult Care Food Program Engagement, 54 J. Nutrition Educ. & Behav. 947, 951 (2022) (describing how the “nervous or nerve-wracking” feeling of state agency visits can deter CACFP participation).

     ↑

207. . For an insightful interview with the lead prosecutor in the FOF cases, Joe Thompson, discussing Minnesota’s failure to prevent fraud, see Deena Winter, Who Is Joe Thompson, the Federal Prosecutor Who Says Minnesota ‘Left the Door Wide Open’ to Fraud?, Minn. Star Trib. (July 29, 2025), https://www.startribune.com/joe-thompson-prosecutor-feeding-our-future/601442597 [https:// perma.cc/DG8X-A25W]. Thompson explains that while criminal defendants must take responsibility for their conduct, the state “left the door wide open” to fraud. Id. He points to: “Politicians who turned a blind eye. Agencies that failed to act. Prosecutors and law enforcement who didn’t push hard enough. Reporters who ignored the story. Community leaders who stayed silent. And a public that wanted to believe it couldn’t happen here.” Id. ↑

208. . See Snyder v. United States, 603 U.S. 1, 16 (2024) (critiquing the lack of guidance the Government provides in defining a “wrongful” gratuity). Under the Government’s “wrongfulness” standard, Justice Kavanaugh asks: “Is a $100 Dunkin’ Donuts gift card for a trash collector wrongful? What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities?” Id. ↑

209. . U.S. Dep’t of Just., Just. Manual § 9-46.000 (2020), https://www.justice.gov/jm/jm-9-46000-program-fraud-and-bribery [https://perma.cc/M4KK-9WFK] (“The statute was not intended to reach every Federal contract or every Federal disbursement” and enforcement should be “limited to cases in which the Federal assistance is given pursuant to a specific statutory scheme that authorizes assistance to promote or achieve policy objectives.”). This guidance supports Justice Jackson’s dissenting position, that § 666 is sufficiently limited and does not threaten “common gift giving”—conduct that does not implicate a substantial federal interest. Snyder, 603 U.S. at 35, 42 (Jackson, J., dissenting) (“§ 666 was not designed to apply to teachers accepting fruit baskets, soccer coaches getting gift cards, or newspaper delivery guys who get a tip at Christmas . . . [its] limits are clear on the face of the statute.”). ↑

210. . See White House, United States Strategy on Countering Corruption 4 (2021) (“Corruption robs citizens of equal access to vital services . . . .”). ↑

211. . Snyder, 603 U.S. at 19. ↑

212. . Transcript of Oral Argument at 46–47, Snyder v. United States, 603 U.S. 1 (2024) (No. 23-108). The Government argued that a gratuity was illegal under § 666 when the prosecutor proved the defendant’s “consciousness of wrongdoing” and that jury instructions may “isolate what is actually wrongful” which is the appearance that “the government is for sale.” Id. ↑

213. . Snyder, 603 U.S. at 7–8 (discussing gratuities rules and exceptions promulgated by the Office of Government Ethics guiding compliance with § 201, but not § 666); see also infra note 214. ↑

214. . See, e.g., Ethics Advisor’s Desk Reference, U.S. Dep’t of Agric., at pt. II.A., https://www. usda.gov/oe/rules-road/overview/ethics-advisors-desk-reference [https://perma.cc/57JQ-QR7R]. The USDA notes that for the purpose of § 201, “public officials” includes both federal employees and individuals “acting for or on behalf of” a federal agency. Id. at pt. I.B.2. ↑

215. . Snyder, 603 U.S. at 15–16 (“The Government’s interpretation of the statute would create traps for unwary state and local officials” because it “does not identify any remotely clear lines separating an innocuous . . . gratuity from a criminal gratuity.”). ↑

216. . The President can issue ethics guidance to executive branch personnel as well. See, e.g., Exec. Order No. 13490, 74 Fed. Reg. 4673 (Jan. 26, 2009) (requiring all appointees to executive agencies to sign an ethics pledge, which includes a ban on accepting gifts from lobbyists and standards to address conflicts of interest). ↑

217. . U.S. Dep’t of Just., Just. Manual § 9-27.001 (2023), https://www.justice.gov/jm/jm-9-27 000-principles-federal-prosecution [https://perma.cc/8YL7-B3EF]. The DOJ’s prosecutorial discretion flows from the Constitution, which empowers the President, and thereby the executive branch, to ensure that the laws are “faithfully executed.” U.S. Const. art. II, § 3. ↑

218. . See, e.g., U.S. Dep’t of Agric., supra note 179. The USDA requires agency staff who are “offered a bribe or who believe[] that a bribe was offered to, solicited by, or accepted by another employee [to] immediately report that information directly . . . to OIG . . . .” Id. at 5; see also Off. of Inspector Gen., U.S. Dep’t of Agric., Semiannual Report to Congress 1 (2024) (showing that during a six-month period in 2024, OIG processed six bribery complaints and 4,704 cases of “participant fraud”). ↑

219. . Whistleblower Protection Coordinator, U.S. Dep’t of Agric., Off. of Inspector Gen., https://usdaoig.oversight.gov/resources/whistleblower-protection-coordinator [https://perma.cc/Y79F-MM9X]. ↑

220. ­. FNS collaborates with nonprofits to create publicly available training materials for sponsors and sites and provides technical assistance to state agencies. See CACFP Training Tools, USDA Food & Nutrition Serv. (May 1, 2025), https://www.fns.usda.gov/tn/cacfp/trainers-tools [https://perma.cc /8C6F-VXW7]; CACFP Training: Institute of Child Nutrition, Nat’l CACFP Ass’n (Aug. 4, 2022), https://www.cacfp.org/2022/08/04/cacfp-training/ [https://perma.cc/2N6N-45CY]; Training: CACFP Centers, Minn. Dep’t of Educ., https://education.mn.gov/MDE/dse/FNS/prog/CACFPCen/Train/ind ex.htm [https://perma.cc/NQP7-GLCP]. ↑

221. . 5 U.S.C. § 7353(b) (authorizing the Office of Government Ethics to issue rules implementing federal prohibitions on bribery and illegal gratuities for executive branch officers and employees). The Office does not have jurisdiction over non-federal employees, meaning they cannot guide § 666 prosecutions. ↑

222. . Just as federal agencies issue ethics guidance to officers and employees, DOJ should issue guidance to state and local officials—all of whom are potential subjects of § 666 prosecution. These guidelines will set a baseline for criminal conduct, allowing state and local jurisdictions to criminalize more conduct based on their policy goals. The reporting process, through the FBI and state or local OIG, will serve as a safety valve on prosecutions. These authorities will only refer cases to the DOJ after investigating and determining whether the case merits federal prosecution. ↑

223. . Chris Edwards, Cutting Federal Spending, in Cato Handbook for Policymakers 1, 5 (9th ed. 2022), https://www.cato.org/cato-handbook-policymakers/cato-handbook-policymakers-9th-edition-2022/cutting-federal-spending#spending-cut-plan [https://perma.cc/L9A9-RUP4]. ↑

224. . Id. at 4 (“If the activities that are cut are useful to society, then state governments or private organizations should fund them.”). ↑

225. . Tatiana Andreyeva, Timothy E. Moore, Lucas da Cunha Godoy & Erica L. Kenney, Federal Nutrition Assistance for Young Children: Underutilized and Unequally Accessed, 66 Am. J. Preventative Med. 18, 19 (2024). Despite CACFP’s association with “reduced food insecurity and improved nutrition,” only 36.5 percent of licensed childcare providers participate in the program. Id. at 19–20. And while the participation rate is higher in low income areas (57.5 percent), the benefits of the program could be more widespread. Id. at 21–24. State policymakers could reduce the compliance costs for institutions and incentivize the participation of sponsors whose local expertise would reduce the administrative burden on small distribution sites. See Jana et al., supra note 95 (discussing the administrative burden on institutions seeking to participate in CACFP). ↑

226. . Andreyeva et al., supra note 225, at 24 (“The large variation in CACFP participation rates across states, after accounting for income differences, suggests some states developed effective strategies to reduce program barriers and increase participation.”). ↑

227. . See Michelle Griffith, Gov. Walz Proposes Stiffer Penalties, Using AI to Fight Fraud in Minnesota Programs, Minn. Reformer (Jan. 3, 2025), https://minnesotareformer.com/2025/01/03/gov -walz-proposes-stiffer-penalties-using-ai-to-fight-fraud-in-minnesota-programs/ [https://perma.cc/TJ4 Z-5GJT] (proposing a new fraud investigation unit, increased state agency authority to stop payments upon the suspicion of fraud, and the use of AI models to flag suspicious spending patterns, and criminal kickbacks). ↑

228. . Haider & Roque, supra note 44 (describing disparities in food insecurity by race). ↑

229. * J.D. Candidate, Washington University School of Law (2026); B.A., Washington University in St. Louis (2022). I would like to thank the editors of the Washington University Law Review for providing feedback throughout the writing and publication process, specifically my Notes Editor Elizabeth Gluck for helping me develop my thoughts and research. I would also like to thank my parents, especially for being longtime subscribers to the Minnesota Star Tribune, which inspired many of the questions that I wanted to raise in this Note. Any errors are my own. ↑

Introduction

An unusual and surprising thing is happening in patent law of late: very little. The four decades beginning in 1980 saw almost constant turmoil in patent law, with dramatic changes to the statute, a brand-new court in charge of patent appeals, Supreme Court interest not seen since before the invention of the writ of certiorari, dramatic growth in patent applications, patent grants, and patent lawsuits, and unprecedented media and public attention. It also saw two distinct swings in public policy, the first (in the 1980s and 1990s) strengthening patent rights after a period of perceived weakness and the second (in the 2000s and early 2010s) cutting back on the perceived excesses of the first. But in the last several years, since roughly 2018, patent law has settled down. That’s not to say there aren’t interesting and important questions still being addressed, or that there aren’t people pushing for policy changes. But patent law in the last several years has entered an era of normalcy.^[2]

The normalcy may be short-lived, however; the Trump administration has emerged as an agent of chaos in patent law as in so many other things. More on that at the end of the paper. But first, some history on just how much has changed.

I. 1980–2017: The Whirlwind of Change

1982 is often thought of as a fulcrum for change in patent law. The creation of the Federal Circuit marks the beginning of the modern era of patent law. But the changes go well beyond the creation of that court.

A. The Evolving Practice and Procedure of Patent Law

A lawyer who entered the patent profession in 1980 has seen changes to almost every aspect of their job. In 1980, patent law (not yet “intellectual property” in most circles)^[3] was a relatively obscure backwater, the province of engineers who didn’t interact much with the legal system. Fewer than 50,000 patents had issued the year before.^[4] Those patents were primarily granted for mechanical inventions.^[5] They generally named a single inventor, usually from the United States.^[6] That inventor was unlikely to come from a university; universities rarely patented their inventions before 1980.^[7] If more than one person claimed to have invented the same technology, the winner was the first to invent a new technology who was entitled to a patent.^[8] A single invention was usually protected by one or at most a few patents.^[9] Those patents lasted for seventeen years from the date they issued.^[10] And if the Patent and Trademark Office (PTO) made a mistake in issuing a patent, there was no way for it to correct its error.^[11]

Patents were unlikely to be enforced in court; only about 750 patent lawsuits were filed in 1980.^[12] When they were enforced, it was almost always in a bench trial, not a jury trial.^[13] It was usually by a company that made a product and was suing a competitor.^[14] Most of the patents litigated in court were invalidated.^[15] If a party appealed that decision, that appeal went to the regional circuits, some of which (like the Eighth Circuit) were notorious for never having upheld a patent.^[16]

Four decades later, none of those things is true. Intellectual property is front-page news,^[17] and patent litigation is the province of both the top general practice law firms^[18] and of a new wave of plaintiffs’ personal injury lawyers.^[19] The PTO issues more than 300,000 patents a year, six times what it did forty years earlier.^[20] Patents are increasingly concentrated not in mechanical arts, but in software, communications, and internet law.^[21]

Who files patents has also changed dramatically. Today, invention is increasingly done by teams.^[22] Those teams (and their employers) are increasingly global; more than half of all U.S. patents today issue to foreign inventors,^[23] and many of the companies that obtain the most patents each year are based outside the United States.^[24] Universities are much more active in patenting than they were before the passage of the Bayh-Dole Act in 1980, though their share of all patents is still small.^[25]

The process of obtaining those patents has also changed. Patents now issue not to the first to invent but to the first inventor to file, meaning that if more than one person invents at around the same time (and they often do)^[26] the person who gets to the patent office first is the one who gets the patent. Those patents last for twenty years from the date of filing, not seventeen years from the date of issuance,^[27] lengthening the term for most patents but reducing abuse of “submarine patents” by some.^[28] Patents increasingly come not alone but in large families, driven by the growth of continuation applications and the rise of double patenting.^[29] That is particularly true in the life sciences.^[30] Combined with the increased complexity of products in the IT industry, the result has been the proliferation of “patent thickets” in which hundreds, thousands, or even hundreds of thousands of patents may cover a single product.^[31]

The process of enforcing those patents is also very different than it was in 1980. Patent validity can now be challenged not just in court but in the PTO through a variety of administrative revocation systems, including ex parte reexamination (added in 1980), inter partes review (IPR) (added in 1999 but significantly expanded in 2011), and post-grant review (added in 2011).^[32] Patents can be enforced not just in court but in the International Trade Commission (ITC).^[33] Despite the increase in avenues to challenge patent validity, patents are much more likely to be held valid today than they were in the 1970s.^[34]

Patent litigation is much more common than it was in 1980, with roughly 3,000–4,000 suits per year filed in recent years, more than five times as many as in 1980.^[35] And it looks very different than it did in 1980. Those suits are increasingly filed in a few favorite plaintiff venues such as the Eastern and Western Districts of Texas and the District of Delaware, which have become popular forum-shopping destinations and which in some cases affirmatively seek to attract patent suits;^[36] none were common forums for patent cases before 1980. Forum shopping has persisted despite significant efforts by courts to rein it in.^[37] But one opportunity for forum shopping at the appellate level has disappeared. Since 1982, all appeals in patent cases go to the newly-created Court of Appeals for the Federal Circuit.

The nature of those suits has also changed. Patent suits in 1980 tended to be between competitors, generally in the mechanical or chemical industries. No longer. A large fraction of suits are in the computer and communications industries.^[38] Many of those patent suits today are filed not just by companies seeking to prevent infringement by a competitor, but by “non-practicing entities” (NPEs)—companies that don’t make any products. NPEs now account for roughly half of all patent suits.^[39] Most of these are “patent assertion entities” (PAEs), otherwise known as “patent trolls”— companies in the business of buying up patents from others in order to assert them, frequently against dozens of different defendants.^[40]

Another significant change in the subject matter of patent suits involves the pharmaceutical industry. Before 1984, patent suits over pharmaceuticals were rare because generic drugs were rare. The 1984 Hatch-Waxman Act changed that, making it easier to get approval for generic drugs and creating incentives to challenge patents on drugs.^[41] It also created a complex regulatory scheme for evaluating drug patents,^[42] and the result has been a significant number of patent and related antitrust suits between pharmaceutical patent owners and generic competitors, something that didn’t exist before 1984.^[43] Congress has since created a somewhat different set of rules for biosimilars to biotechnology drugs.^[44]

Plaintiffs today generally try their cases before juries; the share of jury trials rose from 8.3% in 1978 to more than 70% by 1995.^[45] With the rise of jury trials has come a new procedural mechanism for determining the meaning and scope of patent claims—the Markman hearing. Named for a 1996 Supreme Court decision that held that judges, not juries, decide the meaning of patent claims,^[46] these hearings are ubiquitous in patent cases. They generally happen after the close of discovery but before summary judgment. And they are frequently dispositive of cases; once the meaning of disputed claim terms is known, it is often clear whether the defendant’s product infringes the patent.^[47]

Patent litigation today is also commonly accompanied by an IPR, an administrative challenge to the validity of the patent before the Patent Trial and Appeal Board (PTAB). The IPR proceeding didn’t exist until 1999 and didn’t exist in its current form until 2011, but it has become— at least until the second Trump administration came along— the way most patent validity disputes are resolved,^[48] and appeals from the PTAB currently occupy a large fraction of the Federal Circuit’s patent docket.^[49]

In short, the nature of patenting and of patent litigation— who participates and how it works— looks quite different today than it did forty-five years ago.

B. Revolutions in the Substance of Patent Law

Along with those changes in procedure and the patent marketplace have come perhaps even more dramatic changes in the substance of patent law. Almost every substantive patent doctrine has undergone significant changes since 1980.

1. The Reshaping of Patentability

In order to receive a patent for an invention, the inventor must satisfy various patentability criteria. These criteria created by Congress and interpreted by the courts all underwent either major revision or a complete revolution in doctrine during the last forty years.

• Initially, the scope of patentable subject matter was dramatically broadened by the Supreme Court beginning in 1980 with Diamond v. Chakrabarty^[50] and Diamond v. Diehr^[51] the following year, a trend that continued until, by 1998’s State Street Bank decision,^[52] “everything [was] patentable.”^[53] It stayed that way for a decade, until the Supreme Court cut back on patentable subject matter in a series of four decisions from 2010 to 2014.^[54]
• The rules for novelty were significantly modified by Congress.. As mentioned above, the most dramatic change was the move from first to invent to first inventor to file in 2011, which changed both the process and the substance of prior art. Along with that change came the elimination of some categories of prior art^[55] and the creation of a new prior user right defense.^[56] But those weren’t the only changes. Beginning in 1995 and again in 1999, Congress expanded the universe of prior art from U.S. activity to include some foreign activity.^[57] It completed that expansion in 2011, and now prior art of all types can come from anywhere in the world.^[58]
• The law and practice of obviousness changed significantly over this period. Many courts were willing to find patents obvious in the 1970s. That changed with the creation of the Federal Circuit in 1982, which many (including judges on the court) saw as intended to strengthen patent rights by making it harder to invalidate patents.^[59] And the Federal Circuit did indeed make it harder to prove obviousness, constructing new limits on the doctrine such as the “teaching-suggestion-motivation” requirement^[60] and changing the validity rate significantly.^[61] But the Supreme Court reversed that trend in KSR v. Teleflex,^[62] making it easier to prove obviousness again.^[63]
• A Supreme Court decision in the 1960s had set a high bar for showing that patents were “useful,” at least in the chemical industries.^[64] However, Federal Circuit decisions in the 1990s made utility doctrine much less important in practice.^[65]
• The law of disclosure has changed significantly in multiple ways. The Federal Circuit has tightened the basic rules of enablement over the last two decades in ways that make it almost impossible to obtain patents on genus claims in the chemical arts, something that was once common.^[66] Written description, which before 1980 was a doctrine that applied only in patent priority disputes, has developed into a second disclosure requirement with reach independent of the enablement doctrine.^[67] And the doctrine of indefiniteness, which the Federal Circuit had held essentially never applied, was broadened by the Supreme Court,^[68] though subsequent Federal Circuit cases suggest it may still apply only rarely.^[69]

2. Changes to Infringement, Remedies, and Defenses

The law surrounding the enforcement of a valid patent also underwent significant modification.

• Infringement, for example, looks very different than it did in 1980. I have already discussed the rise of the Markman hearing to construe patent claims pretrial.^[70] Markman has had a dramatic effect in practice on infringement cases. Once we know what a patent covers and doesn’t cover, that is often the end of the infringement dispute, because if there is no dispute about how the defendant’s product works, literal infringement is a simple matter of comparing the two. And indeed, parties often settle after Markman, or agree to a finding on infringement in order to prepare the case for appeal.^[71] Markman has also affected the doctrine of equivalents, which went from being a central part of infringement analysis to something that is used only occasionally, in significant part because judges who had just construed claims were unwilling to reopen that decision for an equivalents analysis.^[72]

Changes in infringement haven’t been limited to the basics of direct infringement, however. The Supreme Court significantly revamped the law of inducement, making it easier to prove the mental state requirement for inducement in two cases in the 2010s.^[73] At the same time, courts developed a new doctrine to deal with “joint” or “divided” infringement claims, significantly limiting the ability of patent owners to claim that two or more parties jointly infringed a patent even though no one of them performed all the steps of the patented process.^[74]

• The Federal Circuit wholly revamped the law of inequitable conduct, a defense that renders patents unenforceable if the patentee deceived the patent office. Responding to complaints about a “plague” of allegations of inequitable conduct, the en banc court tightened up the standards for proof of inequitable conduct,^[75] with the result that counterclaims for inequitable conduct dropped from 17% of all cases to 8% in a matter of a few years.^[76]
• The law of remedies has seen even more dramatic changes. The Federal Circuit set out a bright-line rule beginning in the 1980s that if a patentee won its suit, it was entitled to an injunction. The Supreme Court reversed that rule in 2006, holding in eBay v. MercExchange that injunctions were available only after a case-by-case equitable analysis.^[77] The result has been to significantly reduce the grant of injunctive relief, particularly for NPEs.^[78] Courts also reintroduced and strengthened the doctrine of apportionment in patent damages^[79] and gave judges an important gatekeeper role in weeding out dubious economic theories of damages.^[80] They repeatedly changed the law for enhancement of damages for willful infringement during this period, varying the rule from one that effectively required anyone accused of patent infringement to get a written opinion of counsel,^[81] to one that replaced opinion of counsel with a standard of “objective recklessness,”^[82] to one that threw out both tests in favor of a word salad of synonyms for willfulness that effectively gave the question to the jury without guidance,^[83] while separating and reserving for the judge the question of whether a showing of willfulness actually justified enhancing damages.^[84] The Supreme Court also revamped the law of attorney’s fees, making it significantly easier for prevailing defendants to recover their fees.^[85]

By almost every measure, then, the substantive law of patents, like the users of the patent system and the process, have undergone dramatic changes since 1980.

II. 2018–2024: Patent Law’s Era of Normalcy

It is notable that almost all these major changes happened before 2018. In recent years, by contrast, patent law has settled into a routine. That’s not to say there is nothing new, of course. The Supreme Court and the Federal Circuit continue to decide cases that matter to patent lawyers. But the kinds of sweeping reforms that had been the hallmark of the previous four decades seem a thing of the past.

The Supreme Court seems to have lost interest in substantive patent law, perhaps because the Justice most interested in it—Justice Breyer—is no longer on the Court.^[86] While it still takes patent cases periodically, it takes somewhat fewer than it did in the previous two decades While the Court has decided sixty-two patent cases since the creation of the Federal Circuit in 1982, and during the first two decades of the century decided “more patent law cases than in the prior three decades combined,”^[87] it has decided only three substantive patent cases since 2018 and in the last two terms has taken no patent cases at all.^[88]

More importantly, most of those recent cases either aren’t about substance at all^[89] or, if they are, don’t change the law or simply don’t matter very much in the real world. The Court’s last important change in patent law was in 2017, to restrict forum shopping—a procedural, not a substantive change.^[90] It has decided only two important substantive cases in the last decade—Amgen v. Sanofi and Helsinn v. Teva—but both decisions were 9‑0 affirmances of changes the Federal Circuit had made to enablement law over the prior two decades (Amgen)^[91] or of the Federal Circuit’s conclusion that the America Invents Act (AIA) did not change the definition of prior art (Helsinn).^[92]

Beyond that, recent Court patent cases have something of an instinct for the capillary. The Court is deciding fringe issues that don’t much matter in the real world. It narrowed the scope of assignor estoppel,^[93] an issue I personally care a lot about^[94] but which no one would class as a central issue to patent law. The Court has issued three decisions in recent years on the scope of 35 U.S.C. § 271(f), a fairly obscure part of the infringement statute that covers unusual circumstances in which an infringer makes component parts in the United States and ships them abroad to be combined.^[95] Section 271(f) isn’t used much; one would be hard-pressed to find three Federal Circuit cases applying the statute that didn’t end up getting Supreme Court review.^[96] The Court has also ruled on whether the PTO can recover its attorney’s fees even if it loses when it is sued under 35 U.S.C. § 141, another obscure and rarely-used provision.^[97] And it has decided whether the Post Office is a “person” that can participate in patent proceedings.^[98] These are hardly decisions that shake the foundations of patent law.

The Federal Circuit, too, has settled into a period of normalcy. The prior four decades involved significant use of en banc review at the Federal Circuit, granting en banc review in patent cases at a rate more than double that of other regional circuits.^[99] Those cases produced a number of fractured and bitterly divided en banc decisions^[100] and judges lamenting the creation of other circuit splits that should have been resolved en banc.^[101] By contrast, the Court has only taken two patent cases en banc in the past seven years.^[102] One was a design patent case—again one I personally care a lot about,^[103] but which is outside the realm of normal (utility) patent law— and it was decided unanimously.^[104] The other, EcoFactor Inc. v. Google LLC^[105] promised to offer significant substantive guidance on the law of damages apportionment, but ended up only holding that judges had to faithfully apply Federal Rule of Evidence 702 in Daubert proceedings to exclude experts who didn’t rely on a reasonable methodology.^[106]

The new normalcy at the Federal Circuit isn’t limited to en banc cases. There are fewer dissents from denial of en banc review than there used to be.^[107] There are fewer dissents in panel opinions. The Federal Circuit used to have the second-highest rate of dissents among the circuits, but it is now lower than average.^[108] Indeed, the court is deciding fewer precedential decisions at all even as its patent docket has grown,^[109] putting more reliance on nonprecedential decisions and one-line Rule 36 affirmances.^[110] One unscientific measure of the decline in important new legal rules from the Federal Circuit is that my annual “patent year in review” summary of significant developments at the court regularly ran 100 or more pages last decade, but this decade averages only about fifty pages.^[111] Fifty pages isn’t nothing; the court is still deciding cases that matter. But they aren’t fundamentally rewriting the law in the way they have done in past decades.

Even the areas that patent lawyers frequently complain about as sources of uncertainty turn out to be a lot more stable and predictable than those complaints would suggest. Despite inaccurate complaints about the IPR procedure instituted in 2011 as “death squads, killing property rights”^[112] and flatly false claims that the PTAB is invalidating the overwhelming majority of patents, the evidence shows that the PTAB from 2012 through 2024 made validity decisions at a consistent, predictable rate—42%—that is virtually indistinguishable from the invalidation rate in courts and from the rate that prevailed in the 1990s, decades before it was instituted.^[113] IPRs are cheaper and quicker than jury trials, and so they are used more often and settle less than court cases, but they aren’t “death squads” any more than juries are.

The other thing patent lawyers consistently complain is unpredictable is the law of patentable subject matter since Alice.^[114] It is true that the two-part Alice test doesn’t offer particularly clear guidance for distinguishing unpatentable abstract ideas from patentable inventions. Nonetheless, the more than 1000 court decisions applying Alice in the last decade^[115] have settled into, if not a bright-line rule, a predictable standard under which (1) very few patents are invalidated outside the information technology (IT) sphere^[116] and (2) IT patents that seem to involve real technology survive a § 101 challenge, while those that simply claim the idea itself in functional terms without a new technological implementation are likely to fail. The rubric isn’t foolproof, and there are outliers, but it turns out lawyers are pretty accurate at predicting which claims will survive an Alice challenge and which ones will fail. Two empirical studies confirm this, showing that even taking a short look of no more than a minute, patent lawyers can guess the likely outcome of § 101 challenges.^[117] District judges also seem pretty good at it; the affirmance rate in § 101 cases is 85.3%,^[118] which compares favorably with the overall affirmance rate for patent cases at the Federal Circuit.^[119] And the empirical evidence shows that the fallout from Alice had virtually no measurable impact on innovation.^[120]

Congress hasn’t modified patent law since the AIA in 2011. And while there are perennial bills targeting both IPRs and Alice, they haven’t gone anywhere. There is little reason to think that will change at a time when Congress can’t seem to agree on anything.^[121]

III. Normalcy and Resilience

This is the point in a law review article at which the author, having identified some significant issue with current law, is supposed to propose reform. This is not such an article. I personally think that equilibrium is a pretty fair compromise of competing interests, though not a perfect one.^[122] We haven’t eliminated patent trolls, for instance, but they are a more manageable problem than they were twenty years ago. Others disagree, in both directions.^[123] But whether you like the current rules or not, my point is descriptive—the system is settling into an equilibrium. That means that going forward we are unlikely to see the sorts of substantive upheaval that have characterized the past several decades.

In prior work a decade ago, I showed that even in the midst of significant substantive and procedural turmoil, many of the basic dynamics of the patent system proceeded apace, with consistent growth in the number of patent applications, the number of issued patents, the number of lawsuits, and a consistent patentee win rate across periods of significant substantive change.^[124] I suggested that the patent system might be resilient to changes in the underlying law and that patents (and patent litigation) may be valued for reasons other than the statutory purpose of excluding competitors in order to encourage innovation.^[125] That resilience, which was surprising given the upheavals I have discussed, will only strengthen as patent law settles into its era of normalcy.

The resilience of the patent system doesn’t mean the outcome of cases is irrelevant; we should want people with meritorious cases to win and people with weak ones to lose. The same is true of legal doctrines. If too many people are engaged in the business of buying and asserting weak patents against entire industries, it makes sense to change the law to discourage trolling. Similarly, if too many defendants are alleging inequitable conduct, it makes sense to change the law to make opportunistic assertions of misconduct harder. Sorting out the substantive doctrines and the process by which they are applied has been the project of the last forty years. But those higher-level changes are unlikely to be the dominant story of the near future. Instead, patent law has entered its era of normalcy, resolving disputes on the individual merits. That doesn’t mean there won’t be new technologies to challenge patent law, as artificial intelligence is doing right now.^[126]

But those changes aren’t likely to be nearly as significant as the ones we have been experiencing. AI may change how people invent, and it will certainly change the way they draft and examine patent applications. Perhaps it will change substantive legal doctrines,^[127] though I’m skeptical that it will cause us to rethink those doctrines rather than just change the facts to which those doctrines apply.

Patent law has entered a period of normalcy.^[128] I think that is something we should value even if we don’t agree with all of the ways the law has settled. Businesses often talk about the importance of settled expectations: “Just tell us what the rules are,” they might say, “so we can plan around them.” There haven’t been many settled rules in patent law. Now, for the first time in recent memory, there are.

IV. 2025–?: Chaos Comes to the Patent Office

It may seem crazy to talk about normalcy in 2026, when literally nothing about our country is normal. Our constitutional democracy is collapsing around us, replaced by an authoritarian dictator who defies the rule of law and governs by whim and tweet. Trump has upended lots of norms that made our legal and political system work; he certainly wouldn’t balk at upending the norms of patent law too if he thought it would benefit him somehow. And he seems to have found in the new PTO Director, John Squires, and Deputy Director, Coke Morgan Stewart, agents of chaos.

Some—but by no means all—of the chaos comes from the determination of Squires and Stewart to flat-out abolish the IPR process Congress enacted.^[129] Since February 2025, the PTO Directors have arbitrarily denied nearly 75% of the IPR petitions filed without considering the merits.^[130] And although most of those denials happened under Stewart, the new director has shown that he intends to make it essentially impossible to file an IPR challenging a patent, rejecting most applications without reaching the merits^[131] and creating retroactive “rules” that prevent meritorious patent challenges.

The PTO has adopted a new, legally unsupported “settled expectations” rule that prevents filing a challenge at all against patents more than six years old, which includes two-thirds of issued patents and nearly three-fourths of the patents that are actually being enforced.^[132] It also has proposed a rule change that would refuse IPR petitions unless the challenger agreed to waive its validity challenges in litigation—even challenges it couldn’t bring in an IPR.^[133] That proposed rule is flatly inconsistent with the statute,^[134] which sets out a much narrower scope of impermissible overlap, and with the cases interpreting that statute.^[135]

Further, Squires has refused to institute a meritorious claim—one that the PTAB judges and even his own deputy found worthy of review—because while some claims were likely invalid, other claims in the patent might not be.^[136] That, too, directly contradicts the statute, which provides for review if at least one of the claims of the patent is likely invalid.^[137] It also undermines the U.S. Supreme Court’s reading of the statute, which “suggests . . . a regime where a reasonable prospect of success on a single claim justifies review of them all.”^[138]

The PTO “propos[es] to sharply narrow when a patent’s validity can be challenged in administrative tribunal proceedings.”^[139] It has tried to circumvent court appeals of its rulings by declaring that its final written decisions are not final, even when they are.^[140] And it has required up-front disclosures of the real party in interest behind the proceedings—not problematic in itself, but troublingly coupled with a statement by Squires that he would use those disclosures to target foreign challengers to U.S. patents.^[141] And Squires and Stewart have done all this retroactively, applying their new doctrines to petitions filed before they even took office—petitions filed under very different rules.

Most dramatically, the director announced that he was removing the PTAB from the process of deciding whether to institute IPRs at all. Instead, Squires would decide all the petitions himself, perhaps in consultation with hand-picked PTAB judges in certain complex cases.^[142] Even if the director has the power to do this (and he may not),^[143] it isn’t possible for him to make reasoned decisions in so many complex patent cases—unless the goal is to ignore the statute and get rid of IPRs altogether. And indeed, Squires later made it clear that he would not make any such reasoned decision, instead replacing an established procedure at the PTAB with unexplained yes-or-no decisions based on the Director’s whim.^[144] That, too, almost certainly violates the Administrative Procedures Act.^[145] And in the rare cases where he has allowed an IPR to proceed, he has provided no guidance to the parties as to why the petition was instituted.

Eliminating IPRs created by Congress is illegal. It’s also a terrible idea. As noted above, it will get us worse (or at best similar) decisions, but they will take longer and cost much more. That doesn’t benefit anyone except the subset of patent owners who know they have weak patents and hope to use the cost and uncertainty of litigation to drive nuisance settlements.^[146] Everyone else should want more clarity at less cost.

The chaos doesn’t end with IPRs, however. Even patent owners who might rejoice at the elimination of IPRs still have plenty to worry about from the new PTO leadership. The PTO has aggressively targeted its own employees, laying people off even though the agency is fully funded,^[147] breaking the union that represents patent examiners on spurious national security grounds,^[148] increasing examiner workload and giving them less credit for the work they do,^[149] and laying the groundwork for a “return”-to-office mandate for patent examiners^[150]—even though the vast majority have worked from home for years^[151] and no office exists for them to return to.^[152] Unsurprisingly, morale at the PTO is collapsing and people are leaving in droves.^[153] Patent owners won’t end up happy with a system where they can’t get patents because the PTO can’t hire or keep examiners.

And if inventors do get those patents, the Trump administration is planning ways to make them pay. These include an unworkable (and since withdrawn) proposal that inventors pay a fee based on the total amount they hope to make from their invention,^[154] a 100% tariff on patented pharmaceuticals,^[155] and a proposal to seize the patents of people the administration doesn’t like.^[156] Even if we need to raise taxes, singling out innovators to tax seems like a particularly bad idea.

It’s not clear that there is much rhyme or reason to this. There is no obvious connection between ideology and support for stronger or weaker patent rights,^[157] and so no reason to think Trump is more likely than Biden (or the first Trump administration) to favor one side or the other in patent disputes. And it’s not clear how much it will disrupt the pattern of normalcy patent law has settled into. Even if IPRs go away, the law has settled down, the Supreme Court has lost interest, and it’s not clear that is going to change. The chaos at the PTO will primarily affect the PTO.^[158] This will in turn affect how lawyers strategize and practice patent law. But these changes will not impact substantive patent law doctrine.

If there is a broader threat to the normalcy of patent practice, it is likely not Trump as policymaker but Trump as chaos agent. His seeming determination to destroy the U.S. economy with tariffs, hamstring universities, and end government funding for scientific research may fundamentally change whether innovation happens (and whether it happens in the United States or elsewhere) and so reduce the rate of patented inventions.^[159]

But those external changes, like the current chaos at the PTO, will happen, if at all, against the backdrop of a patent system that is likely to look next year pretty much like it did last year, something we haven’t been able to say for a very long time.

1. * William H. Neukom Professor, Stanford Law School; partner, Lex Lumina LLP. © 2026 Mark A. Lemley. Thanks to Jonas Anderson, Nikola Datzov, Laura Dolbow, Paul Gugliuzza, Rose Hagan, Tim Holbrook, Lisa Ouellette, Jason Rantanen, Jason Reinecke, Jake Sherkow, Jay Thomas, and participants at the Patent Scholars Roundtable at Stanford Law School for comments on a prior draft and to Jack Gleiberman for research assistance. ↑

2. . By normalcy, I mean the relative stability of legal rules and party behavior. That doesn’t mean every legal issue is resolved, much less that we know how every case will come out. But the fundamental rules and practices have been established.

   This paper is about U.S. patent law. There are important changes happening in other countries, from the opening of the Uniform Patent Court in Europe to the rise of global fights over standard-essential patents and injunctions. They are outside the subject of this paper. ↑

3. . Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 Tex. L. Rev. 1031, 1033–34 (2005). ↑

4. . Table of Issue Years and Patent Numbers, for Selected Document Types Issued Since 1836, U.S. Pat. & Trademark Off., https://www.uspto.gov/web/offices/ac/ido/oeip/taf/issuyear.htm [https:// perma.cc/4FC6-WGLD]. ↑

5. . John R. Allison & Mark A. Lemley, Who’s Patenting What? An Empirical Exploration of Patent Prosecution, 53 Vand. L. Rev. 2099 (2000) [hereinafter Allison & Lemley, Who’s Patenting What?]; John R. Allison & Mark A. Lemley, The Growing Complexity of the United States Patent System, 82 B.U. L. Rev. 77, 80 (2002) [hereinafter Allison & Lemley, Growing Complexity]. ↑

6. . Allison & Lemley, Growing Complexity, supra note 4, at 95, 97. ↑

7. . The Bayh-Dole Act, which encouraged university patenting, was passed in 1980. Bayh-Dole Act, Pub. L. No. 96–517, § 6(a), 94 Stat. 3015, 3018–27. ↑

8. . 35 U.S.C. § 102(g) (2010) (amended 2011 by the America Invents Act). ↑

9. . Mark A. Lemley, Ten Things to Do About Patent Holdup of Standards (and One Not to), 48 B.C. L. Rev. 149, 150 (2007) (“[G]enerally, one patent covers one drug. By contrast, in the IT industries, there are usually multiple patents—sometimes hundreds or even thousands—on each new product.”); Edward J. Egan & David J. Teece, Untangling the Patent Thicket Literature (Tusher Ctr. for Mgmt. of Intell. Cap., Working Paper No. 7, 2015), https://haas.berkeley.edu/wp-content/uploads/Tusher-Center-Working-Paper-7.pdf [https://perma.cc/36FU-KE8F]. ↑

10. . See 35 U.S.C. § 154 (1993) (amended 1994 by the Uruguay Round Agreements Act). ↑

11. . The first administrative revocation system, ex parte reexamination, was passed on December 12, 1980. See Pub. L. No. 96-517, § 6(a), 94 Stat. 3015, 3018–27 (codified as amended at 35 U.S.C. §§ 301–307). ↑

12. . Gene Quinn, Patent Litigation in the United States, 1980 to 2020, IP Watchdog (Nov. 4, 2021), https://ipwatchdog.com/2021/11/04/patent-litigation-in-the-united-states-1980-to-2020/ [https:// perma.cc/HGT5-CJCE] (fig. 3). Over the longer term, both the rate of litigation and win rates fluctuated in the nineteenth century. Christopher Beauchamp, The First Patent Litigation Explosion, 125 Yale L.J. 848 (2016). ↑

13. . Quinn, supra note 11 (fig. 1); Mark A. Lemley, Why Do Juries Decide If Patents Are Valid?, 99 Va. L. Rev. 1673, 1706 (2013) (citing data noting the rise in patent jury trials from 1978 to 1994). ↑

14. . E.g., David L. Schwartz & Jay P. Kesan, Essay, Analyzing the Role of Non-Practicing Entities in the Patent System, 99 Cornell L. Rev. 425, 426 (2014). ↑

15. . John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 192 n.12 (1998) (noting 35% validity rate during the period before the creation of the Federal Circuit). ↑

16. . Neil Jones, The Five Most Publicized Patent Issues Today, ABA: Bus. L. Today (May 22, 2014), https://www.americanbar.org/groups/business_law/resources/business-law-today/2014-may/the-five-most-publicized-patent-issues-today/ [https://perma.cc/Y6YS-GNZ9] (noting that, as of 1982, the Eighth Circuit had not upheld the validity or infringement of a patent for twenty-five years). ↑

17. . E.g., Sheryl Gay Stolberg & Rebecca Robbins, Moderna and U.S. at Odds Over Vaccine Patent Rights, N.Y. Times (Nov. 11, 2021), https://www.nytimes.com/2021/11/09/us/moderna-vaccine-patent.html [https://perma.cc/VMP4-PGCE] (published in print on page A1); Rebecca Robbins, How a Drug Company Made $114 Billion by Gaming the U.S. Patent System, N.Y. Times (Jan. 28, 2023), https:/ /www.nytimes.com/2023/01/28/business/humira-abbvie-monopoly.html  [https://perma.cc/HKV2-JX CM] (published in print on page A1). ↑

18. . See, e.g., Kathleen M. O’Malley, The Intensifying National Interest in Patent Litigation, 19 Marq. Intell. Prop. L. Rev. 1, 6 (2015) (Federal Circuit Judge Kathleen O’Malley, stating that, as of 2015, “there are not more than a handful of large firms without vibrant patent litigation departments, and, of those few, most are probably actively trying to develop them”); Andrew Maloney, Big Law Finds Growth Opportunities Through IP Hires, Am. Law. Mag. (Mar. 1, 2024), https://www.law.com/ americanlawyer/2024/03/01/big-law-finds-growth-opportunities-through-ip-hires/ [https://perma.cc/3C7N-VQ44]. Commentators have linked the Supreme Court’s increasing interest in patent law to the elite bar’s involvement in patent litigation. See generally Paul R. Gugliuzza, The Supreme Court Bar at the Bar of Patents, 95 Notre Dame L. Rev. 1233 (2020). ↑

19. . Ronen Avraham & John M. Golden, “From PI to IP”: Litigation Response to Tort Reform, 20 Am. L. & Econ. Rev. 168, 171 (2018). ↑

20. . Table of Issue Years and Patent Numbers, supra note 3. ↑

21. . Allison & Lemley, Growing Complexity, supra note 4, at 80; John R. Allison, Mark A. Lemley & David L. Schwartz, Our Divided Patent System, 82 U. Chi. L. Rev. 1073, 1076 (2015). ↑

22. . Dennis Crouch, The Team-Based Reality of Modern Innovation: Average Patent Now Lists More Than Three Inventors, Patently-O (Nov. 18, 2024), https://patentlyo.com/patent/2024/11/reality-innovation-inventors.html [https://perma.cc/DZJ8-ED8P] (“[T]he average number of inventors per utility patent has reached 3.2 in 2024, nearly double the 1.7 inventors per patent seen in 1976.”); Allison & Lemley, Who’s Patenting What?, supra note 4, at 2101–02. ↑

23. . U.S. Patent Statistics Chart: Calendar Years 1963–2020, U.S. Pat. & Trademark Off., https://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm [https://perma.cc/DAC5-H6U6] (noting that foreign inventors were 53.2% of utility patent grants in 2020). ↑

24. . Top Organizations 2020, U.S. Pat. & Trademark Off., https://www.uspto.gov/web/offices/ ac/ido/oeip/taf/topo_20.htm [https://perma.cc/KCB4-JCZP]. The top ten firms granted patents in 2020 were IBM (domestic), Samsung (foreign), Canon (foreign), Microsoft (domestic), Intel (domestic), LG (foreign), TSMC (foreign), Apple (domestic), Huawei (foreign) and Qualcomm (domestic). Id. ↑

25. . U.S. Colleges and Universities—Utility Patent Grants 1969–2012, U.S. Pat. & Trademark Off., https://www.uspto.gov/web/offices/ac/ido/oeip/taf/univ/asgn/table_1_2012.htm [https://perma. cc/4DGQ-2AWV] (noting that, in 2012, 1.89% of patents granted were assigned to universities, as compared to 0.64% in 1980). ↑

26. . Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 709, 712 (2012). ↑

27. . 35 U.S.C. § 154. ↑

28. . Mark A. Lemley & Kimberly A. Moore, Ending Abuse of Patent Continuations, 84 B.U. L. Rev. 63, 79–80, 84–85 (2004). ↑

29. . Id. at 81–83; Mark A. Lemley & Lisa Larrimore Ouellette, Fixing Double Patenting, 74 Am. U. L. Rev. 1013, 1027–28 (2025). ↑

30. . Lemley & Moore, supra note 27; Robin Feldman, May Your Drug Price Be Evergreen, 5 J.L. & Biosciences 590, 597 (2018); Michael A. Carrier & Steve D. Shadowen, Product Hopping: A New Framework, 92 Notre Dame L. Rev. 167, 171 (2016); S. Sean Tu & Mark A. Lemley, What Litigators Can Teach the Patent Office About Pharmaceutical Patents, 99 Wash. U. L. Rev. 1673, 1682 (2022). ↑

31. . Gideon Parchomovsky & R. Polk Wagner, Patent Portfolios, 154 U. Pa. L. Rev. 1, 62–63 (2005); Carl Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting, in 1 Innovation Policy and the Economy 119, 122–23 (Adam B. Jaffe, Josh Lerner & Scott Stern eds., 2000). ↑

32. . 35 U.S.C. §§ 302 (reexamination), 311 (IPR), 321 (post-grant review). ↑

33. . 19 U.S.C. § 1337. While patent enforcement at the ITC was around before 1980, statutory changes in 1988 made it accessible to many more plaintiffs, not just domestic manufacturers. See 19 U.S.C. § 1337(a)(3) (amended 1988). ↑

34. . See Allison & Lemley, Growing Complexity, supra note 4, at 260. Compare the validity rate of 36% in the 1970s to a steady 55% validity rate for the last several decades. Id.; see also John R. Allison, Mark A. Lemley & David L. Schwartz, Understanding the Realities of Modern Patent Litigation, 92 Tex. L. Rev. 1769, 19 (2014) (finding 42.4% invalidity rates in cases decided 2009–2013). ↑

35. . Table C-2—U.S. District Courts–Civil Statistical Tables for the Federal Judiciary, U.S. Courts (Dec. 31, 2024), https://www.uscourts.gov/data-news/data-tables/2024/12/31/statistical-tables-federal-judiciary/c-2 [https://perma.cc/8S6Q-YEP4]. ↑

36. . J. Jonas Anderson & Paul R. Gugliuzza, Federal Judge Seeks Patent Cases, 71 Duke L. Rev. 419, 421–23 (2021); Daniel Klerman & Greg Reilly, Forum Selling, 89 S. Cal. L. Rev. 241, 247–80 (2016). ↑

37. . See TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 581 U.S. 258, 261–62 (2017) (holding that corporations “reside” only in their State of incorporation under the patent venue statute); Order Assigning the Bus. of the Ct. as it Relates to Pat. Cases (W.D. Tex. May 30, 2024), https://www. txwd.uscourts.gov/wp-content/uploads/2024/05/Order-re-Patent-Cases-05302024.pdf [https://perma. cc/AH5Y-HGMF] (requiring cases filed in the Western District of Texas to be randomly assigned and requiring a motion to consolidate related cases). ↑

38. . Allison et al., supra note 20. ↑

39. . Shawn P. Miller et al., Who’s Suing Us? Decoding Patent Plaintiffs Since 2000 with the Stanford NPE Litigation Dataset, 21 Stan. Tech. L. Rev. 235, 240 (2018). According to the Stanford NPE Litigation Dataset, of cases filed between January 1, 2015 and January 1, 2025, 7,925 were filed by patent-assertion entities out of 14,340 cases in total (55.3%). See NPE Litigation Database, Stan. L. Sch. https://npe.law.stanford.edu/ [https://perma.cc/N2VS-KGTY] (filtering cases for categories 1, 4, 5). ↑

40. . See NPE Litigation Database, supra note 38. ↑

41. . 21 U.S.C. §§ 301–399. ↑

42. . Id. ↑

43. . Allison et al., supra note 20. ↑

44. . See Robin Feldman & Gideon Schor, Dance of the Biologics, 39 Berkeley Tech. L.J. 841 (2024) (describing this system). ↑

45. . Lemley, supra note 12, at 1706. ↑

46. . Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). ↑

47. . “Claim construction is often dispositive of the other issues in the patent litigation.” David L. Schwartz, Courting Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission, 50 Wm. & Mary L. Rev. 1699, 1708 (2009). Indeed, “[o]f [cases] that make it to a Markman hearing, 50-80% settle thereafter but before trial.” Mark A. Lemley, Without Preamble, 100 B.U. L. Rev. 357, 360 n.8 (2020). And, even when litigants do not settle, they often stipulate to entries of judgment designed to test an adverse claim construction by the district court. See BRK Brands, Inc. v. Nest Labs, Inc., 51 F. Supp. 3d 742, 744 (N.D. Ill. 2014) (Posner, J.) (recognizing that the Federal Circuit has reviewed claim construction from appeals of stipulated judgments, but questioning the practice). ↑

48. . From 2021–2023, the PTAB resolved 4,053 cases (primarily IPR cases, with a small number of PGR cases). Lex Machina, Patent Litigation Report 2024, at 25 fig. 22 (2024). In contrast, district courts resolved 1,086 cases in that same period. Id. at 19 fig. 16. ↑

49. . In 2023, for example, 433 appeals from the PTAB were filed in the Federal Circuit. Id. at 26 fig. 23. Only 306 appeals from district courts were filed that year. Id. at 8 fig. 4. ↑

50. . Diamond v. Chakrabarty, 447 U.S. 303 (1980). ↑

51. . Diamond v. Diehr, 450 U.S. 175 (1981). ↑

52. . State St. Bank & Tr. Co. v. Signature Fin. Grp., Inc., 149 F.3d 1368 (Fed. Cir. 1998), abrogated by, In re Bilski, 545 F.3d 943 (Fed. Cir. 2008). ↑

53. . Michael Risch, Everything Is Patentable, 75 Tenn. L. Rev. 591 (2008). ↑

54. . Bilski v. Kappos, 561 U.S. 593 (2010); Mayo Collaborative Servs. v. Prometheus Lab’ys, Inc., 566 U.S. 66 (2012); Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013); Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014). ↑

55. . Old 102(f) and (g) prior art no longer exist. See U.S. Pat. & Trademark Off., Manual of Patent Examining Procedure § 2151 (9th ed. rev. 1, Nov. 2024). That is probably also true of old 102(c), though the issue has not been resolved definitively. See Edward D. Manzo, The Impact of the America Invents Act on Trade Secrets, 13 J. Marshall Rev. Intell. Prop. L. 497, 515 (2014) (“Courts will need to consider the effect of the AIA in removing 35 U.S.C. Section 102(c) . . . . A question the courts will have to confront is whether the abandonment or forfeiture doctrines are nevertheless still available to protect the public interest against such patents.”). ↑

56. . 35 U.S.C. § 273. ↑

57. . District of Columbia Appropriations Act, Pub. L. No. 106–113 app. I § 4806, 113 Stat. 1501, 1501A-590 (1999). ↑

58. . 35 U.S.C. § 102. ↑

59. . See Allison & Lemley, supra note 14, at 187 (“The Federal Circuit is pro-patent, according to some views, or anti-patent according to others.”); H.R. Rep. No. 97-312, at 20–22 (1981) (“[S]ome circuit courts are regarded as ‘pro-patent’ and other ‘anti-patent,’ and much time and money is expended in ‘shopping’ for a favorable venue. . . . [T]he validity of a patent is too dependent upon geography (i.e., the accident of judicial venue) to make effective business planning possible.”); Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. Rev. 1 (1989). ↑

60. . Ryan T. Holte & Ted Sichelman, Cycles of Obviousness, 105 Iowa L. Rev. 107, 113 (2019) (“Over time, critics of the TSM test claimed the Federal Circuit favored patentees in obviousness determinations . . . .”); see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007) (noting that the Federal Circuit had transformed the TSM test “into a rigid rule that limits the obviousness inquiry” in some cases). ↑

61. . Allison & Lemley, supra note 14, at 206 (finding that Federal Circuit’s 55% validity rate was “significantly higher” than the pre-Federal Circuit rate). ↑

62. . KSR, 550 U.S. at 427–28. ↑

63. . Holte & Sichelman, supra note 59, at 147 (“[T]he Federal Circuit’s increased likelihood of finding obviousness post-KSR was about 10%, compared to 20% for the district courts.”). ↑

64. . Brenner v. Manson, 383 U.S. 519 (1966). ↑

65. . See, e.g., In re Brana, 51 F.3d 1560, 1567 (Fed. Cir. 1995) (holding that post-filing evidence can demonstrate utility that existed at filing); Juicy Whip, Inc. v. Orange Bang, Inc., 185 F.3d 1364, 1367 (Fed. Cir. 1999) (holding that a product’s ability to “imitate” some other product, as cubic zirconium imitates diamonds, constitutes utility). ↑

66. . Dmitry Karshtedt, Mark A. Lemley & Sean B. Seymore, The Death of the Genus Claim, 35 Harv. J.L. & Tech. 1, 13 (2021). ↑

67. . Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1340 (Fed. Cir. 2010) (reaffirming that § 112 “contains a written description requirement separate from enablement”); Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1479 (Fed. Cir. 1998). In theory written description should apply in two sets of cases where enablement does not: “gun jumping” cases in which the patentee files before the invention is ready, as in Ariad, and “late claiming” cases in which the patentee changes its claims to cover things it had not actually thought of, as in Gentry Gallery. ↑

68. . Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014) (changing the standard from “insolubly ambiguous” to “reasonable certainty”). ↑

69. . As Jason Rantanen notes:

    The Supreme Court’s ruling in Nautilus, in short, appears to have produced no change at all. . . . In applying the Nautilus standard, the Federal Circuit is still treating claims as reasonably certain as long as the person construing the claim can arrive at a reasonable construction. And, although the Federal Circuit has not come out and said it (nor is it likely to), the only claims for which one cannot arrive at a reasonable construction are those that are not amenable to construction or are insolubly ambiguous..

    Jason Rantanen, Teva, Nautilus, and Change Without Change, 18 Stan. Tech. L. Rev. 430, 447 (2015). The exception involves means-plus-function claims in the software industry, where courts regularly invalidate claims for failure to disclose an algorithm implementing the claim. See, e.g., Fintiv, Inc. v. PayPal Holdings, Inc., 134 F.4th 1377 (Fed. Cir. 2025). ↑

70. . See supra text accompanying notes 45–46. ↑

71. . See sources cited supra note 46. ↑

72. . John R. Allison & Mark A. Lemley, The (Unnoticed) Demise of the Doctrine of Equivalents, 59 Stan. L. Rev. 955, 958 (2007). ↑

73. . Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 768 (2011); Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 642 (2015). Other changes resulted from the Supreme Court’s “adoption” of the patent standard for inducement in copyright cases, which actually adopted a somewhat different test that has now been reimported into patent law. See Timothy R. Holbrook, The Supreme Court’s Quiet Revolution in Induced Patent Infringement, 91 Notre Dame L. Rev. 1007, 1010–25 (2016). ↑

74. . Limelight Networks, Inc. v. Akamai Techs., Inc., 572 U.S. 915 (2014); Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1023 (Fed. Cir. 2015) (en banc); Mark A. Lemley, David O’Brien, Ryan M. Kent, Ashok Ramani & Robert Van Nest, Divided Infringement Claims, 6 Sedona Conf. J. 117, 119 (2005) (“Where there is no agency relationship or similar coordination – for example where the different actors do not know each other at all, or are in an arm’s-length business transaction – courts have not been willing to apply the law of inducement to aggregate the disparate acts of unrelated parties.”). ↑

75. . Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1289 (Fed. Cir. 2011) (en banc); see also Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir. 2009) (applying heightened pleading standard to allegations of inequitable conduct). ↑

76. . Robert D. Swanson, Comment, The Exergen and Therasense Effects, 66 Stan. L. Rev. 695, 714 tbl. 5 (2014). ↑

77. . eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006). ↑

78. . Christoper B. Seaman, Permanent Injunctions in Patent Litigation After eBay: An Empirical Study, 101 Iowa L. Rev. 1949, 1990 fig. 4 (2016). ↑

79. . See, e.g., Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1326 (Fed. Cir. 2014) (“[W]hen claims are drawn to an individual component of a multi-component product, it is the exception, not the rule, that damages may be based upon the value of the multi-component product.”); Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1315 (Fed. Cir. 2011) (rejecting the “25 percent rule of thumb” as “a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation”). ↑

80. . See, e.g., EcoFactor. v. Google LLC, 137 F.4th 1333, 1340 (Fed. Cir. 2025) (en banc); Commonwealth Sci. & Indus. Rsch. Org. v. Cisco Sys., Inc., 809 F.3d 1295, 1301 (Fed. Cir. 2015) (“[G]iven the great financial incentive parties have to exploit the inherent imprecision in patent valuation, courts must be proactive to ensure that the testimony presented—using whatever methodology—is sufficiently reliable to support a damages award.”). ↑

81. . Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1390 (Fed. Cir. 1983) (creating a duty to obtain an opinion of counsel when accused of infringement), overruled by In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc). On the problems with this system, see Mark A. Lemley & Ragesh K. Tangri, Ending Patent Law’s Willfulness Game, 18 Berkeley Tech. L.J. 1085, 1099–1109 (2003). ↑

82. . In re Seagate Tech., 497 F.3d 1360, abrogated by Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93 (2016). ↑

83. . Halo Elecs., 579 U.S. at 104. ↑

84. . See, e.g., Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 875 F.3d 1369, 1382 (Fed. Cir. 2017) (finding that district court did not abuse discretion in refusing to award enhanced damages, despite jury finding of willfulness). ↑

85. . Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014); Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559 (2014). The effect of these cases was to encourage defendants to fight weak patent suits and to encourage patentees to file stronger suits. See Tommaso Alba, Christian Helmers & Brian J. Love, A Tale of Trolls and Fees: The Role of Fee-Shifting in Patent Litigation, (Santa Clara Univ. Legal Stud. Rsch. Paper No. 5796263, Nov. 24, 2025), https://ssrn.com/ abstract=5796263 [https://perma.cc/6A46-W56L]. ↑

86. . Empirical evidence casts some doubt on how significant his role was in deciding patent cases, but he was certainly the Justice most interested in the field substantively. Paul R. Gugliuzza & Mark A. Lemley, Myths and Reality of Patent Law at the Supreme Court, 104 B.U. L. Rev. 891, 937–42 (2024). ↑

87. . Christa J. Laser, Certiorari in Patent Cases, 48 AIPLA Q.J. 569, 571 (2020). ↑

88. . Lisa Larrimore Ouellette, Michael Risch & Camilla Hrdy, Supreme Court Patent Cases, Written Description, https://writtendescription.blogspot.com/p/patents-scotus.html [https://perma. cc/S6SK-5FNH]. This isn’t disdain for IP issues more generally; the Court has taken a number of important copyright and trademark cases during the last few years. E.g., Jack Daniel’s Props., Inc. v. VIP Prods. LLC, 599 U.S. 140 (2023); Andy Warhol Found. for the Visual Arts v. Goldsmith, 598 U.S. 508 (2023); Google LLC v. Oracle Am., 593 U.S. 1 (2021). ↑

89. . Gugliuzza & Lemley, supra note 85, at 908 (noting the prevalence of procedural issues in the Court’s patent docket); Timothy R. Holbrook, Explaining the Supreme Court’s Interest in Patent Law, 3 IP Theory 62 (2013) (noting the presence of administrative law issues in the recent patent docket). ↑

90. . TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 581 U.S. 258 (2017). ↑

91. . Amgen Inc. v. Sanofi, 598 U.S. 594, 597 (2023). ↑

92. . Helsinn Healthcare S.A. v. Teva Pharms. USA, Inc., 586 U.S. 123, 124 (2019). ↑

93. . Minerva Surgical, Inc. v. Hologic, Inc., 594 U.S. 559, 561 (2021). ↑

94. . See generally Mark A. Lemley, Rethinking Assignor Estoppel, 54 Hous. L. Rev. 513 (2016). ↑

95. . WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407, 409 (2018); Life Techs. Corp. v. Promega Corp., 580 U.S. 140, 142 (2017); Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 441 (2007). ↑

96. . The Federal Circuit has not applied § 271(f) in a case since WesternGeco. The case has, however, been (mis)interpreted to change the law of patent damages in other cases. See Brumfeld v. IBG LLC, 97 F.4th 854, 871 (Fed. Cir. 2024). ↑

97. . Peter v. NantKwest, Inc., 589 U.S. 23 (2019). ↑

98. . Return Mail, Inc. v. U.S. Postal Serv., 587 U.S. 618 (2019). ↑

99. . Ryan Vacca, Revisiting the Federal Circuit En Banc, 37 Harv. J.L. & Tech. 501, 508 & fig. 1 (2024). ↑

100. . See, e.g., CLS Bank Int’l v. Alice Corp., 717 F.3d 1269, 1321 (Fed. Cir. 2013) (en banc) (en banc court splitting 5-5 on patentable subject matter), rev’d, 573 U.S. 208 (2014); SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 807 F.3d 1311, 1333 (Fed. Cir. 2015) (en banc court adopting, 6-5, a patent-specific doctrine of laches), vacated in part, 580 U.S. 328 (2017); Akamai Techs., Inc. v. Limelight Networks, Inc., 692 F.3d 1301, 1305 (Fed. Cir. 2012) (en banc) (per curiam) rev’d, 572 U.S. 915 (2014); Aqua Products, Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017). Ryan Vacca notes that until 2019 the Federal Circuit was “frequently hearing patent cases en banc.” Vacca, supra note 98, at 501. ↑

101. . In dissent from a denial of rehearing en banc, Judge Rich commented on the panel’s willingness to abandon prior Federal Circuit law due to intervening precedent: “[T]his is mutiny. It is heresy. It is illegal.” Atl. Thermoplastics Co. v. Faytex Corp., 974 F.2d 1279, 1281 (Fed. Cir. 1992) (Rich, J., dissenting from denial of rehearing en banc). ↑

102. . Vacca, supra note 98, at 503, 509 fig. 2 (“In 2018, the Federal Circuit suddenly, and without explanation, discontinued its en banc practice.”). ↑

103. . Full disclosure: I represented the appellant in that case. ↑

104. . LKQ Corp. v. GM Glob. Tech. Operations, LLC, 102 F.4th 1280, 1287 (Fed. Cir. 2024) (en banc). ↑

105. . EcoFactor, Inc. v. Google LLC, 104 F.4th 243 (Fed. Cir.), vacated per curiam, reh’g en banc granted, 115 F.4th 1380 (Fed. Cir. 2024). ↑

106. . See EcoFactor, Inc. v. Google LLC, 137 F.4th 1333, 1346 (Fed. Cir. 2025). Even before oral argument, the Federal Circuit dashed the hopes of those who were looking for more guidance on apportionment, striking half of Google’s brief as presenting too broad a question and signaling that it was going to decide only a very narrow and technical issue. See EcoFactor, 115 F.4th at 1380. ↑

107. . Vacca attributes this to the stark difference between older and newer judges; the six newest judges on the court dissent from denial of en banc rehearing at a much-reduced rate compared to their more senior colleagues. Vacca, supra note 98, at 539–41. ↑

108. . Christopher A. Cotropia, Determining Uniformity Within the Federal Circuit by Measuring Dissent and En Banc Review, 43 Loy. L.A. L. Rev. 801, 803 (2010) (second highest from 1998–2009); Paul R. Gugliuzza, Jonathan Remy Nash & Jason Rantanen, Expertise, Ideology, and Dissent, 74 Am. U. L. Rev. 877, 915 tbl. 4 (2025) (showing a drop in the dissent rate from a high of 10.2% in 2012 to 3.6% in 2024); Jason Rantanen, Federal Circuit Dataset & Stats: January 2023 Update, Patently-O (Jan. 31, 2023), https://patentlyo.com/patent/2023/01/federal-circuit-dataset.html [https://perma.cc/ E3C2-GU4L] (showing more recent data). Some of this change can be explained by the absence of Judge Newman, who was responsible for half of all the dissents on the court. Daryl Lim, I Dissent: The Federal Circuit’s “Great Dissenter,” Her Influence on the Patent Dialogue, and Why It Matters, 19 Vand. J. Ent. & Tech. L. 873, 901 (2017). Newman has not been hearing cases for the past eighteen months as the result of a dispute over her fitness to serve on the Court. Id.; see Blake Brittain, US Appeals Court Questions 97-Year-Old Judge’s Challenge to Her Suspension, Reuters (Apr. 24, 2025), https:// http://www.reuters.com/legal/government/us-appeals-court-questions-97-year-old-judges-challenge-her-suspension-2025-04-24/ [https://perma.cc/2NC5-6ME5]. ↑

109. . Vacca, supra note 98, at 522 fig. 5. ↑

110. . Id. at 523 fig. 6; Rantanen, supra note 107; Paul R. Gugliuzza & Mark A. Lemley, Can a Court Change the Law by Saying Nothing?, 71 Vand. L. Rev. 765, 765 (2018). This may be a result of the growth of PTAB appeals in its docket. See Vacca, supra note 98, at 517–19. ↑

111. . Compare Mark Lemley & Andrew McCreary, Recent Developments in Patent Law 2019 (May 1, 2019) (unpublished manuscript), https://ssrn.com/abstract=3384265 [https://perma.cc/G4BE-N4HX] (ninety-five pages long), with Mark Lemley, Jack Gleiberman & Mitchell Phelan, Recent Developments in Patent Law 2025 (Dec. 1, 2025) (unpublished manuscript), https://ssrn.com/abstract =5887123 [https://perma.cc/F6CF-T7C4] (forty-eight pages long). ↑

112. . Tony Dutra, Rader Regrets CLS Bank Impasse, Comments on Latest Patent Reform Bill, Bloomberg L.: Pat. Trademark & Copyright L. Daily (Oct. 29, 2013), https://www.bloomberglaw. com/product/blaw/document/X827Q1H0000000 [https://perma.cc/85PJ-FC8F]. ↑

113. . See Lex Machina, http://www.lexmachina.com [https://perma.cc/SF8E-8B97]. One reason for the continued confusion is that “death squad” partisans point only to final written decisions, ignoring the large number of challenges that are denied before reaching a final decision. ↑

114. . Compare Matthew G. Sipe, Patent Law 101: I Know It When I See It, 37 Harv. J.L. & Tech. 447, 499 (2024) (showing that rulings on patentable subject matter are judge-specific), with Charles Duan, Examining Patent Eligibility, 97 St. John’s L. Rev. 47, 47 & n.3 (2023) (citing but not agreeing with those complaints). ↑

115. . Mark A. Lemley & Samantha Zyontz, Does Alice Target Patent Trolls?, 18 J. Empirical Legal Stud. 47, 48 (2021). ↑

116. . Id. at 67 fig. 5 (showing that 90% of all decisions involve IT patents); id. at 67 (finding that the rate of post-Alice invalidation was 60% for IT patents compared with less than 45% for life sciences patents). ↑

117. . See Nikola L. Datzov & Jason Rantanen, Predictable Unpredictability: The Surprising Administrability of Patent Subject Matter Eligibility, 110 Iowa L. Rev. 667, 691–92 (2025); Jason D. Reinecke, Is the Supreme Court’s Patentable Subject Matter Test Overly Ambiguous? An Empirical Test, 2019 Utah L. Rev. 581, 603–05; Matthew G. Sipe, Patent Law 101: The View from the Bench, 88 Geo. Wash. L. Rev. Arguendo 21, 29 tbl. 4 (2020). Even Sipe, who documents some judge-specific variation in outcomes, calls his paper “I know it when I see it,” suggesting that the problem is not lack of predictability but the lack of a clear rule rather than a standard. See Sipe, supra note 113, at 447. Charles Duan notes that Alice itself wasn’t a particularly notable departure from prior cases, but rather the culmination of several years of patentable subject matter decisions. See Duan, supra note 113, at 48–49. ↑

118. . Datzov & Rantanen, supra note 116, at 716–17. ↑

119. . Jason Rantanen, Charles Neff, Eweosa Owenaze & Allison Williamson, Who Appeals (and Wins) Patent Infringement Cases?, 60 Hous. L. Rev. 289, 317 (2022) (finding a 63% affirmance rate when accused infringers appeal and a 74% affirmance rate when patent owners appeal). ↑

120. . See, e.g., Christian Helmers & Brian J. Love, Patent Protection and Software Firm Financing 1 (Santa Clara Univ. Legal Stud. Rsch. Paper No. 5600070, Oct. 13, 2025), https://ssrn.com/abstract=56 00070 [https://perma.cc/6SZC-2NUT] (“Our findings suggest that software startups with relatively large exposure to Alice performed no better or worse than software firms with less exposure.”). ↑

121. . Congress in 2025 passed fewer bills than any previous Congress. Sarah Rumpf, Congress Sets Records in 2025 for Longest Shutdown, Fewest Bills, Retirements, Yahoo (Dec. 25, 2025), https:// http://www.yahoo.com/news/articles/congress-sets-records-2025-longest-180854756.html [https://perma.cc/ AQD4-5WSQ]. ↑

122. . Among other things, I disagree with some of the substantive decisions on the merits, such as Amgen Inc. v. Sanofi, 598 U.S. 594 (2023). See Karshtedt et al., supra note 65, at 30; Mark A. Lemley & Jacob S. Sherkow, The Antibody Patent Paradox, 132 Yale L.J. 994, 1031–32 (2023). ↑

123. . Compare Mark A. Lemley, The Surprising Resilience of the Patent System, 95 Tex. L. Rev. 1, 11 (2016) (“A growing number of commentators worried that the effect of patent reforms designed to curb abuses by patent trolls would be to weaken the patent system as a whole, and with it, American competitiveness”), with Anthony Ha, Jack Dorsey and Elon Musk Would Like to ‘Delete All IP Law,’ TechCrunch (Apr. 13, 2025), https://techcrunch.com/2025/04/13/jack-dorsey-and-elon-musk-would-like-to-delete-all-ip-law/ [https://perma.cc/VEW5-9DEP]. ↑

124. . Lemley, supra note 122, at 2. ↑

125. . See id. at 52–54. ↑

126. . See Thaler v. Vidal, 43 F.4th 1207, 1210 (Fed. Cir. 2022) (holding that an inventor must be a natural person). The PTO has issued a series of guidelines concerning patentability and AI. See 2024 Guidance Update on Patent Subject Matter Eligibility, Including on Artificial Intelligence, 89 Fed. Reg. 58128 (July 17, 2024); Inventorship Guidance for AI-Assisted Inventions, 89 Fed. Reg. 10043 (Feb. 13, 2024). The first appellate case applying patent doctrines to machine learning saw no need to go beyond settled doctrines in other areas to resolve the case. See Recentive Analytics, Inc. v. Fox Corp., 134 F.4th 1205, 1216 (Fed. Cir. 2025) (holding a machine learning patent not to be patentable subject matter where the patent claimed only applications of existing technology rather than a new machine learning technology). For a review of scholarship covering the intersection of AI and patent law, see Gaétan de Rassenfosse, Adam B. Jaffe & Melissa Wasserman, AI-Generated Inventions: Implications for the Patent System, 96 S. Cal. L. Rev. 1453 (2024). ↑

127. . See Ryan Abbott, Everything Is Obvious, 66 UCLA L. Rev. 2 (2019). ↑

128. . Cf. Robert P. Merges, Patent Markets and Innovation in the Era of Big Platform Companies, 35 Berkeley Tech. L.J. 53, 53 (2020) (“[T]he era of easy and extortionate patent litigation, traditionally associated with the secondary patent market, is coming to a close” because of “recent patent system reforms.”). ↑

129. . Portions of this section are adapted from my op-ed. See Mark A. Lemley, Patent Office’s Inter Partes Review Restrictions Violate the Law, Bloomberg News (Oct. 27, 2025), https://news.bloomberg law.com/legal-exchange-insights-and-commentary/patent-offices-inter-partes-review-restrictions-violat e-the-law [https://perma.cc/2NS2-3RS5]. ↑

130. . William A. Meunier, Peter J. Cuomo, Kevin C. Amendt & Amy LoBue, The PTAB Pendulum Swings: How IPR Denials Are Reshaping Patent Owner and Challenger Strategies, Mintz (Aug. 28, 2025), https://www.mintz.com/insights-center/viewpoints/2231/2025-08-28-ptab-pendulum-swings-ho w-ipr-denials-are-reshaping [https://perma.cc/KH88-B3QL]. ↑

131. . For a while the institution rate for IPRs was 0%; it rose to 4% by December 2025. See Dennis Crouch, So You’re Telling Me There’s a Chance: IPR Institution Rate Rises to 4%, Patently-O (Dec. 1, 2025), https://patentlyo.com/patent/2025/12/telling-theres-institution.html [https://perma.cc/ A4W5-VUMB]. The rate is somewhat higher at this writing, but it is less than a quarter of what it was before Trump. And this is just the decision to reach the merits at all; many cases that are instituted nonetheless uphold the patents. ↑

132. . Brief for Amicus Curiae Intellectual Property and Innovation Professors in Support of Petitioners, In re Sandisk Techs., Inc., No. 2025-152, 2025 WL 3526507 (2025). For data on when patents are litigated, see Brian J. Love, An Empirical Study of Patent Litigation Timing: Could a Patent Term Reduction Decimate Trolls Without Harming Innovators?, 161 U. Pa. L. Rev. 1309 (2013). ↑

133. . Jason Engel & Erik Halverson, USPTO Proposes Rule Changes to Refocus Inter Partes Review Proceedings, K&L Gates IP Law Watch (Oct. 17, 2025), https://www.iplawwatch.com/2025/ 10/17/uspto-proposes-rule-changes-to-refocus-inter-partes-review-proceedings/ [https://perma.cc/T8B4 -FXXL]. ↑

134. . See 35 U.S.C. § 315(e). ↑

135. . See, e.g., Ingenico Inc. v. IoEngine, LLC, 136 F.4th 1354 (Fed. Cir. 2025). ↑

136. . Zhuhai Cosmx Battery Co. v. Ningde Amperex Tech., No. IPR2025-00405 (P.T.A.B. Oct. 15, 2025). ↑

137. . 35 U.S.C. § 314(a). ↑

138. . SAS Inst. Inc., v. Iancu, 584 U.S. 357, 358 (2018). ↑

139. . Michael Shapiro & Aruni Soni, Patent Office Moves to Limit Validity Challenges at Board (2), Bloomberg L. (Oct. 16, 2025), https://news.bloomberglaw.com/ip-law/patent-office-moves-to-limit-patent-validity-challenges-at-board [https://perma.cc/G4JK-U7D8]. ↑

140. . Patent Office Tees Up Appeals Fight over Unilateral Rulings, Bloomberg L. (Oct. 31, 2025), https://news.bloomberglaw.com/ip-law/patent-office-tees-up-fight-with-appeals-court-over-jurisdiction [https://perma.cc/2JUL-XZGT]. ↑

141. . See Dennis Crouch, USPTO Restores Strict RPI Requirements for IPR Petitions, Patently-O (Oct. 28, 2025), https://patentlyo.com/patent/2025/10/restores-requirements-petitions.html [https:// perma.cc/9PWB-UJ4M]. That likely violates United States obligations under the TRIPs agreement. See Dennis Crouch, National Security vs National Treatment: The USPTO’s Ongoing China Problem, Patently-O (Oct. 30, 2025), https://patentlyo.com/patent/2025/10/national-security-treatment.html [https://perma.cc/H8N4-C9VL]. ↑

142. . See Dep’t of Com., U.S. Pat. & Trademark Off., Open Letter and Memorandum, Bringing the USPTO Back to the Future: Return of Institution Authority Under 35 U.S.C. §§ 314 and 324 to the Director (Oct. 17, 2025), https://www.uspto.gov/sites/default/files/doc uments/open-letter-and-memo_20251017.pdf [https://perma.cc/CDP2-9X5Y]. ↑

143. . See Open Letter from Tom W. Krause, Former Solicitor and Director Review Exec., U.S. Pat. & Trademark Off. to John A. Squires, Director, U.S. Pat. & Trademark Off. (Oct. 20, 2025), https://krauseonpatents.substack.com/p/open-letter-to-director-squires-re [https://perma.cc/WNC5-7S8B]. ↑

144. . See Michael Shapiro, Patent Chief Takes Over Validity Challenge Screening Role (1), Bloomberg L. (Oct. 17, 2025), https://news.bloomberglaw.com/ip-law/patent-chief-takes-over-institution-decisions-on-validity-trials/ [https://perma.cc/ZBU6-3KML]. ↑

145. . Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80 (1943); accord Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194 (1947) (requiring that administrative agencies explain their decisions and refusals to supply reasons for them). Unfortunately, the Federal Circuit has refused to review any of the challenges to institution denials, relying on the statute, which says institution decisions are unreviewable. 35 U.S.C. § 314; e.g., In re Intel Corp., No. 2026-113, 2026 WL 506045 (Fed. Cir. Feb. 24, 2026) (per curiam) (nonprecedential). The Federal Circuit has refused to apply the exception the Supreme Court created for agency “shenanigans” of the sort the Trump administration is engaged in. See Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261 (2016). ↑

146. . Max Baucus, It’s Time for the U.S. to Tackle Patent Trolls, Harv. Bus. Rev. (Sept. 16, 2022), https://hbr.org/2022/09/its-time-for-the-u-s-to-tackle-patent-trolls   %5Bhttps://perma.cc/3DLH-SHT3%5D; Mark A. Lemley & A. Douglas Melamed, Missing the Forest for the Trolls, 113 Colum. L. Rev. 2117, 2126 (2013). ↑

147. . Aruni Soni, Patent Office Lays Off Staff as Government Shutdown Begins (2), Bloomberg Law (Oct. 1, 2025), https://news.bloomberglaw.com/ip-law/patent-office-lays-off-some-staff-as-gov ernment-shutdown-begins [https://perma.cc/Z6RF-W2CS]. ↑

148. . Eileen McDermott, Trump Order Bars USPTO Patents Employees from POPA Membership but Will Not Yet Affect Telework, IP Watchdog (Sept. 2, 2025), https://ipwatchdog.com/2025/ 09/02/trump-order-bars-uspto-patents-employees-popa-membership-will-not-yet-affect-telework/ [https://perma.cc/ZH5Q-GWYT]. ↑

149. . See Dennis Crouch, A First Look at the USPTO’s FY2026 Examiner Performance Plan (PAP): What’s Changed and Why It Matters, Patently-O (Oct. 3, 2025), https://patentlyo.com/patent/ 2025/10/examiner-performance-changed.html [https://perma.cc/6H9T-HWT4]. ↑

150. . Dennis Crouch, Detailed Return-to-Office Implementation Guidance: Potentially Major Disruption for USPTO Operations, Patently-O (Jan. 23, 2025), https://patentlyo.com/patent/2025/01/ implementation-potentially-disruption.html [https://perma.cc/94C4-5RQS]. ↑

151. . Dennis Crouch, USPTO Faces Twin Challenges: Return-to-Office Mandate and Hiring Freeze Could Significantly Impact Patent Operations, Patently-O (Jan. 21, 2025), https://patentlyo. com/patent/2025/01/challenges-significantly-operations.html [https://perma.cc/RXD6-3PB3]. ↑

152. . See Press Release, U.S. Pat. & Trademark Off., USPTO Announces Closure of Rocky Mountain Regional Outreach Office (Oct. 1, 2025), https://www.uspto.gov/about-us/news-updates/ uspto-announces-closure-rocky-mountain-regional-outreach-office [https://perma.cc/R62P-KHUP]. ↑

153. . Aruni Soni, Morale Craters at Patent Office in Unusually Strained Transition, Bloomberg L. (June 9, 2025), https://news.bloomberglaw.com/ip-law/morale-craters-at-patent-office-in-unusually-strained-transition [https://perma.cc/T5WC-9XKQ]. ↑

154. . Victor H. Boyajian, Joel N. Bock, Ira L. Kotel & Natalie Hoeper, USPTO Considers Major Shift to Value-Based Patent Fees: What Businesses Need to Know, Dentons (Aug. 19, 2025), https://www.dentons.com/en/insights/alerts/2025/august/19/uspto-considers-major-shift-to-value-based-patent-fees [https://perma.cc/9G4E-VTKC]. The Secretary of Commerce disavowed this proposal in February 2026. Eileen McDermott, Lutnick Tells Coons He Will Not ‘Harm Innovation’ with Patent Tax Proposal, IP Watchdog (Feb. 10, 2026), https://ipwatchdog.com/2026/02/10/lutnick-tells-coons-he-will-not-harm-innovation-with-patent-tax-proposal/ [https://perma.cc/WHE9-9F4D]. ↑

155. . Lim Hui Jie & Annika Kim Constantino, U.S. to Impose 100% Tariff on Branded, Patented Drugs Unless Firms Build Plants Locally, Trump Says, CNBC (Sept. 26, 2025), https://www. cnbc.com/2025/09/26/us-to-impose-100percent-tariff-on-branded-patented-drugs-unless-firms-build-plants-locally-trump-says.html [https://perma.cc/X9RF-GQUL]. ↑

156. . Clare Zhang, Commerce Moves to Take Cut of Research Patents, Am. Inst. Physics (Oct. 21, 2025), https://www.aip.org/fyi/commerce-moves-to-take-cut-of-research-patents [https://perma.cc/ YB4H-XZWS]. ↑

157. . See, e.g., Jason Reinecke, Decisionmaking in Patent Cases at the Federal Circuit, 81 Wash. & Lee L. Rev. 169, 187–97 (2024); John R. Allison & Mark A. Lemley, How Federal Circuit Judges Vote in Patent Validity Cases, 27 Fla. St. U. L. Rev. 745, 765 (2000). ↑

158. . Admittedly, the agency has more power than it used to, and so it may have more influence on the overall patent system. See Paul R. Gugliuzza, Our New Old Patent System, 106 B.U. L. Rev. (forthcoming 2026), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5399385 [https://perma.cc/ DEL8-NJJZ]. But the PTO has no power to change the law. ↑

159. . See, e.g., J. Bradford Jensen and Scott J. Wallsten, Trump’s Tariffs Also Threaten US Innovation, Peterson Inst. for Int’l Econ., (Apr. 17, 2025), https://www.piie.com/blogs/realtime-economics/2025/trumps-tariffs-also-threaten-us-innovation [https://perma.cc/6STN-37CE]. ↑

Abstract

Trump v. CASA, Inc., the first high-profile Supreme Court case challenging President Trump’s birthright-citizenship executive order, cemented a seismic shift in federal courts’ authority to issue injunctions against government defendants’ unconstitutional acts. An earlier stage of that shift was evident in 2021 with the failure of a lawsuit intended to shield Texans from the Lone Star State’s Senate Bill (S.B.) 8—a statutory scheme prohibiting abortions far earlier in pregnancy than Roe v. Wade and its progeny allowed. The problem for the challengers in Whole Woman’s Health v. Jackson was that S.B. 8 permitted enforcement only by private parties through civil suits, including for substantial money damages. That made it impossible to rely on the usual procedure for contesting state laws in federal court ahead of their application: seeking declaratory or injunctive relief against the government officials responsible for enforcing them.

“Were it not for sovereign immunity,” one scholar wrote, “the logical defendant in a suit to enjoin the enforcement of S.B. 8’s ban on pre-viability abortions would have been the state of Texas.” In the face of state “bounty” schemes, this Article challenges that near-universal assumption about the scope and strength of sovereign immunity, arguing that even with sovereign immunity, a logical defendant in a suit to enjoin the enforcement of S.B. 8’s ban on pre-viability abortions may have been Texas. The Article does so by analyzing the development of the law surrounding Ex parte Young, the 1908 case permitting federal courts to prevent state officials from enforcing unconstitutional state statutes—and by advocating a meaningful but relatively modest extension to allow suits for declaratory or injunctive relief against states themselves in limited circumstances. There are two principal ways to understand Young doctrine: the first aimed at upholding the rule of law by protecting structural constitutional values, the second aimed at preserving the judicial role by maintaining consistency with historical remedies. With a deep dive into each approach, this Article argues that both support state suability as a plausible path to keeping government generally within the bounds of law. Along the way, the Article examines what CASA, as part of the Supreme Court’s broader turn toward history and tradition, means for this “bedrock” area of civil-rights litigation.

Introduction

Trump v. CASA, Inc., the high-profile 2025 Supreme Court case that was supposedly about birthright citizenship but was actually about universal injunctions, cemented a seismic shift in the construction of federal courts’ authority to issue equitable relief against government defendants’ unconstitutional acts.^[2] An earlier stage of that shift was evident in 2021, when the Court precipitated the demise of a lawsuit intended to shield Texans from the Lone Star State’s Senate Bill (S.B.) 8—a statutory scheme prohibiting abortions far earlier in pregnancy than Roe v. Wade and its progeny, which then retained precedential force, allowed.^[3] The problem for the plaintiff abortion providers and abortion-rights advocates in Whole Woman’s Health v. Jackson was that S.B. 8 permitted enforcement only by private parties through civil suits, including for substantial money damages.^[4] That made it difficult to invoke the usual procedure for challenging state laws in federal court in advance of their application: seeking declaratory or injunctive relief against the government officials responsible for enforcing them.

“Were it not for sovereign immunity,” Professor David Strauss wrote in a postmortem on the case, “the logical defendant in a suit to enjoin the enforcement of S.B. 8’s ban on pre-viability abortions would have been the state of Texas.”^[5] In the face of state “bounty” schemes, this Article challenges that near-universal assumption about the scope and strength of sovereign immunity, arguing that even with sovereign immunity, a logical defendant in a suit to enjoin the enforcement of S.B. 8’s ban on pre-viability abortions may have been Texas. The Article does so by analyzing the development of the law surrounding Ex parte Young, the 1908 decision permitting federal courts to prevent state officials from enforcing unconstitutional state statutes^[6]—and by advocating a meaningful but relatively modest extension of that doctrine to allow suits for declaratory or injunctive relief against states themselves in limited circumstances. Along the way, the Article examines what CASA, as part of the broader turn toward history and tradition in understanding federal courts’ equity jurisdiction, means for plaintiffs seeking to prevent the implementation of allegedly unconstitutional state laws backed by coercive private-enforcement processes.

Young is one of the most important cases facilitating the protection of constitutional rights in American law.^[7] Roe was a Young suit.^[8] Under some understandings, Brown v. Board of Education was too.^[9] More recent examples include Obergefell v. Hodges, which recognized a right to same-sex marriage,^[10] and 303 Creative LLC v. Elenis, which recognized a right to refuse to make websites celebrating such marriages.^[11] Since it came down, Young has provided “a ‘bedrock’ foundation for suits to enjoin enforcement of unconstitutional state (and federal) law.”^[12] Before Young, regulated parties could assert that laws were unconstitutional in defending against government enforcement actions (the “post-enforcement” approach).^[13] But that procedure required them to endure the possibility of civil penalties, criminal punishments, and practical expenses if their arguments failed. Young, by contrast, allowed regulated parties to procure anticipatory declaratory or injunctive relief forbidding the application of unconstitutional laws through future enforcement actions (the “pre-enforcement” approach).^[14]

In Jackson, the plaintiffs sued various Texas state officials. But none were “sufficiently connected . . . with the duty of enforcement” to be susceptible to relief under the “narrow” reading of Young the Court adopted.^[15] And the sole private defendant’s assertion that he did not intend to enforce S.B. 8 against the plaintiffs defeated their ability to sue him too.^[16] The potential consequences for violating S.B. 8 were severe: Anyone who procured an abortion, assisted in procuring an abortion, or even intended to assist in procuring an abortion was subject to a civil action by any member of the public for statutory damages of at least $10,000, and a single abortion could potentially spur multiple suits.^[17] The plaintiffs argued that hardly anyone would risk such onerous penalties to pursue the post-enforcement approach to judicial review—and that the statute restricted their ability to raise constitutional defenses anyway.^[18] Indeed, S.B. 8’s results were stark, with Justice Sotomayor observing in dissent that “[t]he chilling effect” on abortions in Texas had “been near total.”^[19]

Texas’s S.B. 8 strategy did not just succeed: It spread. Other states adopted private-enforcement mechanisms to implement abortion limitations.^[20] And while Dobbs v. Jackson Women’s Health Organization soon eliminated the federal constitutional right to abortion,^[21] actual and imaginable state attempts to evade judicial review of regulations controlling constitutionally significant conduct have not stopped there. California passed a gun-control measure concededly patterned after S.B. 8, for instance.^[22] As the Jackson plaintiffs argued: “Churches and religious leaders could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors because they obtained a marriage license.”^[23]

The S.B. 8 challengers sued what seemed like everyone they could envision to try to get the law held unconstitutional: the Texas Attorney General, a slate of state licensing officials, putative classes of state-court judges and clerks, and a private individual who, they argued, had threatened to enforce the law against parties like them.^[24] But the plaintiffs did not sue Texas itself. That may have been a missed opportunity. For while the existing law of state sovereign immunity would not have recognized such a suit, the Supreme Court—where everyone thought the case was heading—can adjust the existing law of state sovereign immunity where warranted. And for the reasons explored below, Young’s logic and lineage may well support doing so to make the pre-enforcement approach to judicial review available against states in limited circumstances.

In four parts, this Article examines the structural and historical development of Young doctrine, advocates a meaningful but relatively modest extension to include declaratory and injunctive relief against states in narrow situations, and responds to some potential questions and concerns about that shift. Throughout, the Article recognizes and respects the foundational role of state sovereignty in American federalism. States have sovereign authority to write laws of any kind into their code, but under the Supremacy Clause, they do not have sovereign authority to enforce laws that conflict with the U.S. Constitution, whether they rely on executive officials, judicial personnel, or private delegees to do so.^[25] The ideas discussed here support and sustain state sovereignty as part of this dual-governmental system in multiple ways—including, among others, by working within the logical structure of the Court’s state-protective immunity jurisprudence; by limiting the proposal for extending Young suits to the doctrine’s original context of negative relief against enforcement; by confining plaintiffs’ ability to attain Young relief against states themselves to the context of private-enforcement schemes that sound in the tradition of public law and where reasonably necessary to obtain meaningful judicial relief in light of alternative processes; and by explaining how the consequences of such suits would be functionally indistinguishable from the legal implications of presently permissible actions against government agents in their official capacities.

Part I presents Young as originally decided, through the lens of the S.B. 8 challenge in Jackson, and as potentially extended to provide relief against states themselves. The Article then describes how the Court and commentators have taken two contrasting and competing approaches to understanding Young doctrine, with the earlier approach centering on structural constitutional concerns and the more recent approach centering on the history of equitable remedies. Part II focuses on the structural conception of Young. This approach understands the doctrine as a means adaptable to the ends of maintaining the supremacy of federal law and the availability of judicial review—and should support state suability where necessary to keep official conduct generally within constitutional constraints.

Part III turns to the historical conception of Young, beginning by explaining the two dominant understandings of the doctrine’s derivation. The first, which has been advanced by Professor John Harrison and which I call the “revisionist” version because it undermines implications suggesting a broad scope of relief, posits that the Young remedy traces back to the antisuit injunction—a mechanism that allowed parties to present assertions that would have been defensive positions at law as affirmative grounds for relief in equity. The second, which has been advanced by Professor James Pfander and which I call the “restorationist” version because it vindicates implications suggesting a broad scope of relief, posits that the remedy stems from three “administrative writs” (mandamus, certiorari, and prohibition) that crossed from English common law into American equity during the nineteenth century. This Part then analyzes the issue of state suability under both the revisionist and restorationist versions of the historical conception, addressing methodological uncertainties and ultimately arguing that each framework provides support for allowing plaintiffs to sue states themselves in the limited circumstances under consideration here.

Part IV responds to some potential questions and concerns, especially regarding the state-action requirement for constitutional litigation and the practicalities of issuing declaratory and injunctive relief against states. Functionally, this Part points out, none of this is new. Federal courts regularly enter declaratory and injunctive relief against states, including in cases brought by the federal government to block the operation of allegedly unconstitutional statutes. At bottom, this Article argues that where states seek to control constitutionally significant conduct by circumventing judicial review, the law makes room to hold them accountable in federal court without diminishing state sovereignty.

I. Ex Parte Young: Then and Now

Decided shortly after the turn of the century in 1908, Young was a spectacle from the start. As Professor Strauss has put it, by challenging both constitutional limits and litigation conventions, “the state statute in Ex parte Young—a regulation of railroad rates—was the S.B. 8 of its time.”^[26] The following discussion first details that decision and then describes its role in challenging the S.B. 8 of our time: S.B. 8. A brief discussion of a possible future path follows.

A. The Original Case

With Ford’s Model T yet to hit the market,^[27] railroad rates were exceptionally important to individuals and businesses alike. Minnesota legislators wanted to mandate rate reductions, but they worried that railroads would succeed in contending they were unconstitutionally confiscatory.^[28] So the state’s attorney general, Edward Young, hatched a two-part plan to prevent the railroads’ resort to court.^[29] First, the enacting legislation included draconian penalties for violating the rate reductions. The intent here was to impede the post-enforcement approach to judicial review by dissuading railroads and their agents from transgressing the law.^[30] As the Supreme Court would explain:

For disobedience to the freight act the officers, directors, agents, and employés of the company are made guilty of a misdemeanor, and upon conviction each may be punished by imprisonment in the county jail for a period not exceeding ninety days. Each violation would be a separate offense . . . . Disobedience to the passenger rate act renders the party guilty of a felony and subject to a fine not exceeding five thousand dollars or imprisonment in the state prison for a period not exceeding five years, or both fine and imprisonment. The sale of each ticket above the price permitted by the act would be a violation thereof. . . . The company itself would also, in case of disobedience, be liable to the immense fines provided for . . . .^[31]

Second, the legislation withheld enforcement authority from the regular rate-setting commission and did not specifically grant such authority to any other state official.^[32] The intent here was to impede the pre-enforcement approach to judicial review by removing the potential targets of suits for injunctions.^[33]

Young’s plan, however, failed to prevent the railroads’ shareholders from filing what were effectively derivative suits in federal court.^[34] The suits sought to prevent the railroads from complying with the rate reductions, which the shareholders argued violated the Due Process Clause, the Equal Protection Clause, and (apparently) the Commerce Clause of the U.S. Constitution.^[35] The shareholders sued Young, among other parties, seeking an injunction forbidding him from enforcing the rates.^[36] The circuit court obliged in part, preliminarily enjoining implementation of the commodity rates.^[37] Along the way, the court rejected Young’s assertion of sovereign immunity.^[38] Rather than await final judgment with the potential to file a petition for certiorari in the Supreme Court on a permanent injunction, Young hurried the process along by filing a mandamus action against one of the railroads in state court in defiance of the circuit court’s order.^[39] That led the circuit court to hold him in contempt, fine him $100, and order the U.S. marshal to place him in custody (which in practice meant requiring him to check in each day) until he withdrew the mandamus case.^[40] Young’s custodial status permitted him to petition the Supreme Court for an original writ of habeas corpus: hence the caption in the resultant case, Ex parte Young.^[41] That posture, in turn, allowed the Justices to evaluate the constitutionality of the Minnesota legislation for the purpose of determining whether the circuit court’s injunction and the ensuing contempt order were valid.^[42]

In a majority opinion by Justice Peckham, the Court held the rate legislation unconstitutional.^[43] Critically, and often lost in lessons on the case, it was not the rates themselves on which the majority focused: It was the penalties for violating them.^[44] Quoting a previous case, the Court reasoned that “‘when the legislature, in an effort to prevent any inquiry of the validity of a particular statute, so burdens any challenge thereof in the courts that the party affected is necessarily constrained to submit rather than take the chances of the penalties imposed,’” there arises “‘a serious question whether the party is not deprived of the equal protection of the laws.’”^[45] That was the situation in Young, Peckham continued, for “[t]he officers and employés could not be expected to disobey any of the provisions of the acts or orders at the risk of such fines and penalties being imposed upon them, in case the court should decide that the law was valid.”^[46] Where a law “impos[es] such conditions upon the right to appeal for judicial relief as works an abandonment of the right rather than face the conditions upon which it is offered or may be obtained,” the Court held, that law “is . . . unconstitutional.”^[47]

The Court then addressed Young’s (legally antecedent) assertion of sovereign immunity.^[48] The Court walked through precedent, developing what lawyers now call the “real-party-in-interest” doctrine.^[49] This produced the rough synthesis that where parties proceeded against state officials, suits seeking relief that would necessarily run against the state itself (as in contract) were forbidden, while suits seeking relief that could theoretically run against the official (as in tort) were permitted.^[50] Applying that rule, the Court refused to grant sovereign immunity, suggesting that for Young to enforce an unconstitutional statute against the railroads would work a sufficiently tort-like injury.^[51]

Striving to distinguish a prior case, the Court wrote that “[i]n making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional it is plain that such officer must have some connection with the enforcement of the act.”^[52] Otherwise, the Court continued, “it is merely making him a party as a representative of the State, and thereby attempting to make the State a party.”^[53] That standard was satisfied in the case at bar, where Young, as attorney general, enjoyed general enforcement authority within the state.^[54] The fact that the rate legislation did not grant Young specific enforcement authority was of no moment.^[55]

Young contended that the complainants sued him “as an officer, to whose discretion is confided the use of the name of the State of Minnesota,” and that they had no interest in “any action [he] might take or bring as an ordinary individual.”^[56] The Court responded that “[i]f the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution,” his conduct “comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”^[57] The notion that “notwithstanding the obvious impact on the State itself, . . . sovereign immunity does not apply because an official who acts unconstitutionally is ‘stripped of his official or representative character’” is the famous “fiction” for which Young became known.^[58] And that fiction produced Young’s “paradox”^[59]—that “an official’s unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment.”^[60]

The balance of the opinion intertwines two themes. The first involves a Lochner-esque reverence for property rights and business interests characteristic of contemporary case law.^[61] The second emphasizes the importance of maintaining the supremacy of federal constitutional rights over attempted state incursions^[62]—especially when considered alongside the related holding that the Minnesota legislation was unconstitutional for making judicial review difficult to attain. The point was not necessarily that a federal court needed to decide such claims. Although federal adjudication seemed to be the majority’s preference, Peckham left room for state tribunals to entertain federal constitutional challenges.^[63] The point, instead, was that some court should stand ready to hear constitutional challenges before regulated parties were forced to face catastrophic consequences.^[64] “[B]eing of a judicial nature [the question of the sufficiency of rates] ought to be settled at the earliest moment by some court,” the majority declared.^[65] “[A]nd when a Federal court first obtains jurisdiction it ought, on general principles of jurisprudence, to be permitted to finish the inquiry and make a conclusive judgment to the exclusion of all other courts.”^[66]

Eventually, it became well-recognized that plaintiffs could bring pre-enforcement challenges to allegedly unconstitutional state laws in suits under 42 U.S.C. § 1983,^[67] which provides for “an action at law, suit in equity, or other proper proceeding for redress” against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”^[68] But Young remains relevant to state sovereign immunity in such suits, since the Supreme Court has held that the set of “person[s]” against whom Section 1983 cases can proceed does not include states.^[69] To sue state officials under Section 1983 in their official capacity, which causes the resulting judgment to run against successors in office (among other things, as discussed below),^[70] thus requires some mechanism for bypassing state sovereign immunity. Young continues to provide that means.^[71]

B. The Current Court

Fast-forward more than a century, to the Supreme Court’s rejection of Young claims in the 2021 Jackson case. As outlined above, the plaintiff abortion providers and abortion-rights advocates levied a pre-enforcement challenge to Texas’s S.B. 8.^[72] Known as a “heartbeat” act, S.B. 8 prohibited most abortions and assistance in procuring them beginning at the first sign of detectable embryonic “cardiac activity,”^[73] which generally occurs around six weeks into a pregnancy’s term.^[74] Measurement of term length begins at the start of the menstrual cycle in which conception occurs—meaning that a pregnancy “starts” about two weeks before conception.^[75] Women commonly do not learn they might be pregnant at least until they miss their period four weeks into the term—and often later, given natural variation and other factors.^[76] The result is that many people will not know they are pregnant before a six-week window closes—and that even for those who do, it may be difficult to make the decisions and arrangements necessary to obtain an abortion before the time limit runs out.^[77]

When the Texas legislature enacted S.B. 8 in May 2021,^[78] constitutional case law protected a federal right to abortion. Roe first recognized that right in 1973,^[79] and Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed and reframed it in 1992.^[80] Under Casey’s formulation, a law was invalid for imposing an “undue burden” on the right to abortion if its “purpose or effect” was “to place a substantial obstacle” in the way of obtaining the procedure before fetal viability.^[81] The Court overturned Roe and Casey in 2022, holding in Dobbs that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”^[82] When it largely rejected the S.B. 8 challenge in December 2021 (after refusing to provide the plaintiffs preliminary relief upon the law’s effective date in September^[83]), the Court had heard oral argument in Dobbs but not yet decided that case.^[84] So Roe and Casey remained good law. And heartbeat bills like S.B. 8 openly defied that precedent by prohibiting abortions months before any possibility of fetal viability.^[85]

S.B. 8’s framers sought to avoid pre-enforcement judicial review by relegating implementation to private civil actions for statutory damages and injunctions by any member of the public—thus making it difficult to target an executive official for classic Young-style relief.^[86] S.B. 8’s framers also sought to avoid post-enforcement judicial review by making the statutory damages prohibitively expensive at $10,000 minimum per abortion per suit and by compounding the consequences through asymmetrical cost-shifting and preclusion-stripping provisions (meaning that multiple plaintiffs could obtain judgments for a single abortion), among other things—all of which minimized the prospect of people violating the act to test its constitutionality.^[87] Similar strategies failed in Young, but they succeeded in Jackson.

The challengers sued eight defendants: a state-court judge and clerk (in anticipation of seeking to certify classes of all state-court judges and clerks), the state attorney general, four leaders of state medical licensing agencies, and one private party.^[88] In a majority opinion written by Justice Gorsuch and joined by Justices Alito, Kavanaugh, and Barrett in full and Justice Thomas in part, the Court labeled Young “a narrow exception” to state sovereign immunity that was “grounded in traditional equity practice.”^[89] State-court judges and clerks do not fit within that exception, the Court explained, for they usually “do not enforce state laws as executive officials might.”^[90] Indeed, Young itself declared that “‘an injunction against a state court’ or its ‘machinery’ ‘would be a violation of the whole scheme of our Government.’”^[91] The Court dispatched the attorney general as a defendant because he did not possess any authority to enforce S.B. 8, putting him beyond Young’s reach.^[92] And the Court ordered the private party’s dismissal for standing reasons, as the plaintiffs did not contest his “sworn declarations . . . attesting” that he held “no intention to file an S. B. 8 suit against them.”^[93]

The Court saw the case differently for the four licensing officials. “On the briefing and argument before us,” Gorsuch stated, “it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity.”^[94] Each, the Court said, was allowed or obliged to pursue enforcement actions against individuals who violated the Texas Health and Safety Code, which included S.B. 8.^[95] On remand, however, the Fifth Circuit certified the question of the licensing officials’ authority to the Supreme Court of Texas, which held that the officials could not enforce S.B. 8 in any way, shape, or form.^[96] That effectively ended the challenge two months after Jackson (and two months before Dobbs) came down.^[97]

In one of the partial dissents, Justice Sotomayor said that the short-term “chilling effect” of S.B. 8 on the right to abortion in Texas was “near total”—and warned that the majority’s decision “clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree.”^[98] Indeed, other legislatures quickly took up aspects of S.B. 8’s strategy. Idaho and Oklahoma enacted abortion laws with private-enforcement regimes before Dobbs came down,^[99] and numerous other states considered doing so.^[100] As Professors Jon Michaels and David Noll wrote in 2023, S.B. 8 was part of “a broader trend among state legislatures”—with “GOP-controlled legislatures leading the charge”—of “at least a hundred bills . . . introduced since 2021” seeking “to use private rights of action to penalize and suppress highly personal and often constitutionally protected activities.”^[101]

As a matter of institutional realism,^[102] it makes sense that states would target rights that seem insecure (like the right to abortion did shortly before Dobbs was decided), for those are the rights that holders would feel least confident exercising against the threat of exorbitant penalties. The political and legal landscape can shift quickly, however, and even in the immediate aftermath of Texas’s move, some liberal state officials encouraged tit-for-tat reactions to S.B. 8. “‘If Texas can use a law to ban a woman’s right to choose and to put her health at risk, we will use that same law to save lives and improve the health and safety of the people of the State of California,’” Governor Gavin Newsom said in support of a bill instituting gun regulations backed by a similar enforcement regime.^[103] Indeed, the fact that Young relief has persisted as a cornerstone of civil-rights litigation despite arising from a decision protecting a constitutional right that courts no longer recognize provides powerful evidence that Jackson’s limitation of Young relief will likewise transcend the substantive area of law involved in that case. Jackson, that is, was only about abortion to the extent that Young was only about economic substantive due process—which is to say, not at all.

C. A Future Possibility

Scholars have analyzed the recent trend toward private enforcement of public policies from a variety of perspectives—with some placing private-enforcement procedures in historical context,^[104] some evaluating their use on legal and normative grounds,^[105] and some offering criteria for separating proper from problematic schemes.^[106] The present project instead returns to a suggestion the majority made in Jackson: that “we do not prejudge the possibility” that “further viable avenues to contest the law’s compliance with the Federal Constitution may be possible.”^[107] Justice Sotomayor expressed a similar sentiment, writing that “some path to relief not recognized today may yet exist.”^[108] It is worth asking, therefore, what alternatives could prove acceptable in future cases presenting similar concerns.

One “possibility,” as Professor Ann Woolhandler has noted, “is to allow a suit against the state” itself.^[109] As it happens, the Supreme Court considered such a suit alongside Jackson, in the form of a challenge to S.B. 8 brought by the United States under President Biden’s Justice Department.^[110] The Court granted cert before judgment in United States v. Texas the same day as in Jackson and heard argument in the cases back-to-back.^[111] But upon deciding Jackson, the Court dismissed the cert petition in United States v. Texas as improvidently granted.^[112] As is common, the Court provided nary a word of explanation; all we know is that Justice Sotomayor dissented from the dismissal.^[113] That ruling had the effect of returning the federal-government suit to the Fifth Circuit, which had stayed the district court’s preliminary injunction.^[114] Ultimately, the United States sought dismissal after Dobbs was decided.^[115]

Some of the issues discussed in the briefing and at argument in United States v. Texas were unique to federal-government suits.^[116] So the Court could have harbored doubts about the United States’s challenge for reasons that would not carry over to private-party challenges. More practically, the Justices could have thought there was no need to bother with the federal-government suit given that a majority approved the case’s continuing against the licensing officials in Jackson.^[117] In any event, even if the federal government can sue states to challenge constitutionally suspect laws with coercive private-enforcement schemes, it will not always do so. Surely the Trump Administration would not have sought to block S.B. 8, for instance; nor did the Biden Administration contest California’s copycat gun-control measure. In other contexts, as in certain environmental and civil-rights statutes, both the federal government and private plaintiffs can enforce legal duties against regulated entities (which sometimes include states).^[118] So whether private plaintiffs can bring suit against states to challenge coercive private-enforcement regimes remains an important question.

To be sure, extending Young’s scope in this way would represent a formal, and to some extent conceptual, shift toward greater acceptance of suing states in their own names. But as the ensuing discussion describes, it would cohere well with the logical structure of the Supreme Court’s state-protective immunity jurisprudence. Some particular limitations would also be important to supporting and sustaining state sovereignty. First, plaintiffs should be able to attain Young relief against states themselves only in the context of private-enforcement schemes that sound in the tradition of public, not private, law. As Dean John Goldberg and Professor Benjamin Zipursky have argued with respect to S.B. 8, “the combination of the law’s deterrent aims (and remedial provisions in furtherance of those aims) and the absence of any plausible claim for redress based on a legal wrong done to . . . the plaintiff” allows us to “infer[] that plaintiffs who sue under the Texas Act are mere delegees of state power.”^[119] Accordingly, “[u]nderstanding the difference between rights of action that vindicate individual rights, on the one hand, and rights of action that merely serve public policy goals, on the other,”^[120] could allow challengers to dispute the constitutionality of the latter kind of scheme without throwing all of state regulatory and common law into question.

Second, plaintiffs should be able to sue states themselves only in those extraordinary circumstances where doing so appears reasonably necessary to obtain meaningful judicial relief in light of alternative processes. That was the rationale by which Young allowed suit against a state attorney general under relatively novel circumstances,^[121] and it is the rationale by which equity more generally changes and adjusts.^[122] What precisely would count as an adequate alternative process would be context-specific, such that this project cannot envision all potential nuances. But as in Young, suits should be potentially available only where states have essentially foreclosed both pre- and post-enforcement judicial review—with respect to the latter, by making statutory damages or other aspects of the regime so punitive as to produce an in terrorem effect for the objectively reasonable regulated party. And while the fate of all regulated parties should not necessarily depend on the litigation prospects of one or two intrepid test plaintiffs, the fact and extent of parties’ willingness to violate statutes should bear on courts’ assessments of whether the schemes actually present penalties exorbitant enough to permit suits against states. In light of the Madisonian Compromise (which reflects comity with state-court systems by permitting Congress to abstain from creating lower federal courts^[123]), moreover, the availability of pre-enforcement review in state court for federal constitutional violations—if capable of providing effective relief—should qualify as an adequate alternative process.

Third, in issuing judgments against future conduct by government defendants, courts can and should start with declaratory relief and proceed to more forceful injunctive remedies only where necessary to attain compliance with the law.^[124]

At bottom, federal law has never provided a remedy for every constitutional violation affecting every person in every set of circumstances. But our “constitutional tradition” has long “demand[ed] an overall structure of remedies adequate to preserve . . . a regime of government under law.”^[125] The end-run encouraged by Jackson poses a serious threat to that tradition—a threat that suits against states in limited situations could thwart without diminishing our constitutional system’s respect for state sovereignty.^[126]

II. Extending Young: The Structural Approach

Recall Professor Strauss’s assertion that “[w]ere it not for sovereign immunity, the logical defendant in a suit to enjoin the enforcement of S.B. 8’s ban on pre-viability abortions would have been the state of Texas.”^[127] But perhaps even with sovereign immunity, a logical defendant against which to seek declaratory or injunctive relief would have been Texas. One could argue as much under either of the dominant approaches to conceptualizing Young, which I call the “structural” approach and the “historical” approach.

A. Articulating the Structural Approach

At least during the latter half of the twentieth century, Young was primarily understood through a structural constitutional lens. This approach comprehends the purpose of Young as maintaining both the supremacy of federal law (an aspect of federalism in our constitutional structure) and the availability of judicial review (an aspect of the separation of powers in our constitutional structure)—and understands the doctrine as adaptable to achieve those ends. As the Supreme Court put it in 1984: “[T]he Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’”^[128] On that view, Young doctrine is integral to “establish[ing] the modern framework for federal protection of constitutional rights from state interference”^[129]—and is thus “‘indispensable to . . . the rule of law’” itself.^[130]

On a theoretical level, the structural conception commonly regards Young as creating both a cause of action implied from the Constitution and an exception to state sovereign immunity.^[131] It is forward-looking, seeking to prevent abuses of authority by maintaining an equilibrium among government institutions, which requires adjusting to new situations as they arise. And it is functionalist in the sense that the approach focuses on the effects of legal rules on real-world circumstances.^[132]

The dissenting opinions in CASA provide a recent illustration of similar structural reasoning in a closely related context. The question presented concerned whether federal courts could issue “universal” (also called “nationwide”) injunctions against unconstitutional government actions.^[133] Rejecting the majority’s conclusion that such injunctions did not have sufficient historical support,^[134] Justice Jackson’s solo dissent focused on the structural ends of equity in public law. “[W]hat it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions,” Jackson said.^[135] “And for that to actually happen, courts must have the power to order everyone . . . to follow the law—full stop.”^[136] By concentrating “solely [on] the scope of judicial authority,” she contended, the majority “ignor[ed] (or forg[ot]) the concomitant expansion of executive power that results when the equitable remedial power of judges is needlessly restricted.”^[137]

Justice Sotomayor’s principal dissent, joined by Justices Kagan and Jackson, focused on the adjustable means of equity in public law. “Adaptability has always been a hallmark of equity,” Sotomayor asserted—“especially with regard to the scope of its remedies.”^[138] Sotomayor argued that the Judiciary Act of 1789—the initial statutory provision as to federal courts’ equity jurisdiction—“codified equity itself, not merely a static list of remedies.”^[139] Accordingly, she contended, Young represented “one respect” in which “equitable relief in the United States has evolved . . . to protect rights and redress wrongs,”^[140] for “‘the threatened conduct of the defendant would not have been an actionable wrong at common law.’”^[141]

Indicative of the structural approach is how, within a few decades, Young-type claims expanded to provide relief beyond the paradigmatic pre-enforcement injunction.^[142] That is why Professor Harrison calls Brown “[t]he most famous Ex parte Young lawsuit in [the twentieth] century.”^[143] In addition to “actions to enjoin the state from commencing judicial proceedings against the plaintiff,” he explains, Young suits have “come to include proceedings to enjoin other kinds of state action, including the administration of programs of public benefit,” like education.^[144]

Young suits have also come to include not just proceedings seeking negative relief (which tells a defendant not to do something), but also proceedings seeking affirmative relief (which tells a defendant to do something).^[145] The 1979 case Quern v. Jordan provides an example.^[146] The district court had determined that Illinois government parties wrongfully withheld welfare payments due under federal law.^[147] “[U]nder the landmark decision in Ex parte Young,” then-Justice Rehnquist wrote for the majority, “a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law, even though such an injunction may have an ancillary effect on the state treasury.”^[148] The Justices therefore upheld a remedial order requiring state officials to mail notices to plaintiff class members informing them of administrative procedures that could determine whether they were owed benefits (despite having rejected an order actually awarding such benefits at a previous stage of the same case).^[149]

The affirmative relief available in Young-type claims can include complex “structural” injunctions, which may involve detailed federal-court oversight of regimens designed to cure constitutional violations in state and local institutions like school systems and prisons.^[150] Brown provides a good example here too—in the form of Brown II’s instruction that on remand, the district courts would retain jurisdiction to issue equitable decrees throughout the time needed “to effectuate a transition to a racially nondiscriminatory school system.”^[151] During that period, Brown II said, the lower courts could “consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas . . . , and revision of local laws and regulations.”^[152]

B. Application to Suits Against States

According to the structural conception of Young, the rule of law depends on federal courts being able to prevent states from violating people’s constitutional rights. Consequently, if states can eliminate all meaningful judicial review of a constitutionally suspect law by delegating enforcement to the public at large, the structural approach should support extending Young to plausible new defendants to maintain the status quo.

The Supreme Court’s 1963 decision in Bantam Books, Inc. v. Sullivan is instructive.^[153] The Rhode Island legislature established the Rhode Island Commission to Encourage Morality in Youth for the purpose of “‘educat[ing] the public’” about “‘obscene, indecent or impure’” books and magazines and such.^[154] The commission set about investigating publishers of “objectionable” materials, soliciting their “cooperation,” and “reminding” them that it had a “duty to recommend to the Attorney General prosecution of purveyors of obscenity.”^[155] Bookmakers filed suit against the commission’s members, alleging unconstitutional intimidation under the First Amendment.^[156]

The commissioners argued that they were not susceptible to suit because they had no actual enforcement authority with respect to the state’s obscenity laws.^[157] The Court declared that argument “untenable.”^[158] Calling the commission’s undertakings “a scheme of state censorship effectuated by extralegal sanctions,” the Justices remarked that “[w]e are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief.”^[159] For “[i]t is not as if this were not regulation by the State of Rhode Island,” the majority reasoned, citing Young.^[160] Indeed, the Court concluded, by “obviating the need to employ criminal sanctions, the State has . . . eliminated the safeguards of the criminal process.”^[161] The system thus represented “a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.”^[162]

Bantam Books understood Young as empowering federal courts not just to protect constitutional rights in the classic executive pre-enforcement context, but also to counteract states’ clever attempts to violate rights without resort to traditional enforcement methods. If a case’s factual and institutional circumstances demand some adjustment to legal doctrine to achieve that objective, then so be it, the Justices made clear: Courts are well warranted “to look through forms to the substance” of the state enforcement framework.^[163] One way to view this idea, to quote Professor Garrett West, is that “adjudication of constitutional public law should be tailored to the circumstances in which the adjudication of constitutional public law better advances the constitutional interest protected by the rule of public law.”^[164] And one situation where adjudication might “better enforce the interests protected by the relevant constitutional provision or the constitutional system generally,” West explains, involves “relax[ing] the restrictions on proper parties under Ex parte Young” in cases akin to Jackson.^[165]

One could say that the adjustment in Bantam Books (softening the idea of enforcement authority) was relatively small, while the adjustment considered here (making states amenable to suit) seems more significant. But since Young was decided, the Court has repeatedly adjusted the surrounding doctrine to respond to evolving challenges to the rule of law, including by allowing affirmative and structural remedies.^[166] The present proposal would not intrude on state sovereignty in the ways critics of broader relief commonly question because it fits within the doctrine’s original context of providing only negative relief against acts aimed at enforcing the challenged state law.^[167]

In addition, swapping states themselves for state officials as defendants in Young litigation would be functionally inconsequential. As the Court has explained, Young “allows suits . . . for declaratory or injunctive relief against state officers in their official capacities.”^[168] And “[i]n an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself.”^[169] The distinction between an official-capacity suit and a personal-capacity (or individual-capacity) suit makes a difference here. In the official-capacity context, “death or replacement of the named official will result in automatic substitution of the official’s successor in office.”^[170] Among other things, that means the government cannot continuously duck Young suits through serial replacements of an office’s occupant. What is more, declaratory or injunctive relief against a government official in their official capacity binds not only that official and their successors, but also the government itself.^[171] For “[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”^[172] The practical effects on state sovereignty of Young suits against states, therefore, should match the practical effects on state sovereignty of Young suits against state officials, which the law already allows.

As it turns out, the partially dissenting Justices in Jackson all would have held court clerks suable—a meaningful doctrinal modification. And they would have done so because they adopted a structural orientation toward Young. Writing for himself and Justices Breyer, Sotomayor, and Kagan, Chief Justice Roberts acknowledged that clerks are generally not adverse to the parties in litigation and that Young had specifically disclaimed any authority to enjoin judicial operations.^[173] Nevertheless, Roberts pointed to the evolution of equity over time, with “[d]ecisions after Young . . . recogniz[ing] that suits to enjoin state court proceedings may be proper.”^[174]

More fundamentally, Roberts argued, “this conclusion is consistent with the entire thrust of Young itself.”^[175] For “[j]ust as in Young, those sued under S. B. 8 will be ‘harass[ed] . . . with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment.’”^[176] Approving the adaptability of Young relief to address innovative attempts to evade constitutional constraints, Roberts contended that “[a]ny novelty in this remedy is a direct result of the novelty of Texas’s scheme.”^[177] And he signed off with a robust espousal of judicial power to preserve the structural integrity of—and the rule of law within—the American constitutional scheme. Quoting Chief Justice Marshall, Roberts wrote that “‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’”^[178] The right in question “does not matter,” he insisted: “[I]t is the role of the Supreme Court in our constitutional system that is at stake.”^[179]

Justice Sotomayor put the point even more plainly. “[T]he Court,” she argued, “has emphasized that ‘the principles undergirding the Ex parte Young doctrine’ may ‘support its application’ to new circumstances, ‘novelty notwithstanding.’”^[180] And because S.B. 8 was intended “to evade Young as historically applied,” the majority’s decision “to shield it from scrutiny based on its novelty” was “especially perverse.”^[181] By failing to respond more forcefully to this “brazen challenge to our federal structure,” she contended, the majority “effectively invites other States to refine S. B. 8’s model for nullifying federal rights” and “betrays not only the citizens of Texas, but also our constitutional system of government.”^[182]

The foregoing assumes that the theory of unconstitutionality under which a plaintiff seeks to challenge a state law backed by a coercive private-enforcement scheme relates to the law’s substantive provisions—to S.B. 8’s restrictions on abortion, for example. But what if the plaintiff also seeks to challenge as unconstitutional the process-related arrangements through which such laws are aimed at avoiding judicial review?

In Jackson, the majority stressed that “[t]his Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court.”^[183] That is correct as a matter of black-letter law. For starters, even if there was a constitutional right to pre-enforcement judicial review in some court, it could not be limited to federal tribunals because under the Madisonian Compromise, Congress has the prerogative to refrain from establishing lower federal courts at all.^[184] Congress could therefore create a federal cause of action to provide pre-enforcement judicial review under the U.S. Constitution solely in state court (especially if the states create no mechanism for such review themselves). As a descriptive matter, however, the Court has never held that any constitutional claim must be available to any particular plaintiff in any judicial forum on a pre-enforcement basis.

That does not mean that state legislatures can attempt to prevent federal constitutional review at their fancy by engaging in the two-step maneuver of (1) eliminating resort to pre-enforcement review by excluding executive enforcement and (2) eliminating resort to post-enforcement review by making the law’s penalties prohibitively steep. If federal law forecloses judicial review of a state statute in any given case through limitations built into Article III (including congressional control over statutory jurisdiction and causes of action), the argument could go, then so be it. But the U.S. Constitution need not afford state legislatures the same prerogative. Indeed, that was Young’s primary holding. The Court first held the Minnesota rate act invalid for precluding any realistic possibility of federal constitutional review.^[185] Only then did it address the issue of sovereign immunity for which the case has become known.^[186]

As an aside in Jackson, Justice Sotomayor stated that for S.B. 8 to prevent abortion providers from obtaining both pre- and post-enforcement judicial review “potentially violat[ed] procedural due process.”^[187] Procedural due process represents one possible source of a constitutional problem with coercive private-enforcement regimes, but there are others. In particular, if the problem with statutes like the rate reduction in Young and the abortion ban in Jackson can arise only with respect to state laws, structural federalism principles must contribute to the constitutional issue in play. Consider Supremacy Clause preemption, as recognized in Chief Justice Marshall’s opinion for the Court in McCulloch v. Maryland, under which states cannot regulate in ways that threaten the integrity of federal institutions.^[188] In McCulloch, Maryland sought to tax the Bank of the United States directly.^[189] In the present context, states (like Texas) are trying to undermine federal courts’ constitutional pronouncements indirectly—but that distinction should not necessarily make a difference.

To be sure, the challengers did not clearly raise a claim along these lines in Jackson,^[190] and the majority paid almost no mind to the possibility of this kind of constitutional problem. Litigants and courts could flesh out the issue moving forward, however. And one need not be confident that the process-related aspects of statutes like S.B. 8 are unconstitutional for the prospect to matter. If the question poses meaningful concerns, the canon of constitutional avoidance could counsel reading otherwise unclear statutory provisions to allow judicial review^[191]—as in Young itself, where the Court’s construction of Minnesota law as authorizing the attorney general to enforce the rate legislation essentially cured the process-related constitutional defect the majority initially identified.^[192]

Where the constitutional argument is that a statute’s substantive regulations violate a plaintiff’s rights (as with the Roe-based argument in Jackson), it makes sense that the plaintiff should proceed against any officials associated with the statute’s potential enforcement who are available to sue—and should be permitted to proceed against the state if no such officials exist. But where the constitutional argument is that there are no officials associated with the statute’s enforcement who are available to sue, the “fiction” from Young that officials can be treated as individuals for purposes of constitutional litigation has no practical effect. Instead, the state is the most logical defendant from the start.

Under the structural approach, in sum, there is a strong case for extending Young to suits against states in certain challenges to constitutionally suspect state laws with coercive private-enforcement regimes. Indeed, multiple current members of the Supreme Court—Chief Justice Roberts and Justices Sotomayor and Kagan—have expressed an openness to making new kinds of state-government defendants suable under Young where necessary to counteract new kinds of state-government schemes to deprive people of constitutional rights. Justice Jackson, too, has endorsed an expansive view of equity’s capacity to fortify judicial power in the face of increasing attacks on the rule of law by other government institutions.

III. Extending Young: The Historical Approach

The structural conception continues to animate the way that much of the judiciary and scholarly community understands Young. In the last quarter century, however, functionalist approaches to federal courts’ equity jurisdiction have seen a significant retrenchment, with the Supreme Court and some prominent academics instead adopting a traditionalist orientation. As the historical approach has become ascendant, debates on the details of its deployment have bubbled up. Through the lens of different accounts—one revisionist, one restorationist—of the place and import of Young in the sweep of American jurisprudence, the following discussion explores the rise of the historical approach and uncertainties surrounding its implementation before turning to the effects of the competing versions on the prospect of suits against states.

A. Articulating the Historical Approach

In 1999, the Supreme Court decided a contract case called Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.^[193] At issue was the propriety of a preliminary injunction forbidding the defendant from divesting the amount necessary to satisfy a potential judgment on the plaintiffs’ damages claims. Justice Scalia’s majority opinion tied the availability of equitable remedies to the Judiciary Act of 1789, which (echoing Article III^[194]) was the initial statutory provision as to federal courts’ jurisdiction over “suits . . . in equity.”^[195] In light of that provision, the Court declared that “‘the equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.’”^[196] Despite stipulating that “[w]e do not question the proposition that equity is flexible,” the majority concluded that federal courts may not “create remedies previously unknown to equity jurisprudence.”^[197] The Court held that the asset-freezing injunction at bar failed that test.^[198]

For herself and three colleagues, Justice Ginsburg filed a forceful opinion dissenting in relevant part. “In my view,” she wrote, “the Court relies on an unjustifiably static conception of equity jurisdiction.”^[199] While the Justices had always “defined the scope of federal equity in relation to the principles of equity existing at the separation of this country from England,” Ginsburg argued, “we have never limited federal equity jurisdiction to the specific practices and remedies of the pre-Revolutionary Chancellor.”^[200] Ginsburg emphasized the importance of equity’s adaptability to do justice in changing circumstances, quoting precedent and scholarship praising its “‘[f]lexibility’” and “‘capacity of expansion.’”^[201] Notably, she cited the supervisory role assigned to district courts after Brown as an example of the Court’s “uph[olding] diverse injunctions that would have been beyond the contemplation of the 18th-century Chancellor.”^[202]

Grupo Mexicano reflected and reinforced a shift toward “a historically inflected methodology” for construing federal courts’ equity jurisdiction.^[203] Although adherents do not agree on all aspects of this kind of approach, using what Professor Pfander and Jacob Wentzel have described as “equitable traditionalism,” commentators have often “sought to confine federal equity power to the forms of equitable intervention common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789.”^[204] Nowadays, a historically informed understanding of equity in American law is especially associated with Professor Samuel Bray, whom the Supreme Court vindicated in CASA by holding that universal injunctions were insufficiently justified by historical practices.^[205]

Echoing Grupo Mexicano (though without citing it), the Court adopted a strict historical approach to Young in Jackson. Justice Gorsuch’s opinion declared that “[t]he equitable powers of federal courts are limited by historical practice” and repeated that proposition like a mantra throughout.^[206] Young complied with this limitation, Gorsuch explained, because it allowed a “narrow” kind of relief “grounded in traditional equity practice.”^[207] But Young and other “older ‘wooden’ authorities” could not justify expanding the powers of equity to reach beyond “those [executive] officials who possess authority to enforce a challenged state law,” Gorsuch said.^[208] For “one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day.”^[209]

While the structural approach to Young doctrine is forward-looking, the historical approach is backward-focused because it ties the lawfulness of equity practices to their conformity with the past. And while the structural approach is functionalist, the historical approach is formalist in the sense that it adopts a supposedly objective understanding of the relevant statutory text (“equity”).^[210] These descriptions are all relative, of course. The structural approach accords some weight to text and tradition, for instance.^[211] And Grupo Mexicano insisted that the historical approach allows some adjustments in light of changed conditions.^[212] But the structural understanding is more forward-looking and functionalist, and the historical understanding is more backward-looking and formalist.

As the historical approach to federal courts’ equity jurisdiction has gained influence alongside turns toward “history and tradition” in constitutional and statutory interpretation more broadly,^[213] two competing versions of the Young remedy’s jurisprudential pedigree have emerged. I call the first the “revisionist” version because its originator argues that viewing Young through this lens should prompt the reconsideration, and narrowing, of prominent implications from the doctrine. I call the second the “restorationist” version because its originators argue that viewing Young this way should revive confidence in a relatively expansive understanding of the doctrine’s implications. As the discussion below captures, these theories derive in part from different ideas about the content and uses of the relevant historical record—about what sources equitable traditionalism should take into account and to what ends.

1. The Revisionist Version

Professor Harrison has been the primary proponent of the revisionist version of Young’s historical conception, which a majority on the Supreme Court has recently, but tangentially, endorsed. Harrison advocates regarding Young as adopting an incremental innovation to the longstanding equitable mechanism known as the antisuit injunction.^[214] Young, he says, “approved the use against a state officer of a standard tool of equity, an injunction to restrain proceedings at law,” whereby “a party who would be the defendant in a corresponding lawsuit can enforce in equity a legal position that would be a defense at law.”^[215]

Antisuit injunctions trace back essentially to the start of chancery—and were elemental to equity’s rise.^[216] As Professor John Norton Pomeroy explained: “Without this means of interference to protect the rights of its suitors, the court of chancery could never have established, extended, and enforced its own jurisdiction.”^[217] Thus, “during its formative periods, the equitable jurisdiction was built up through the instrumentality of the injunction restraining the prosecution of legal actions.”^[218] Potential defendants at law could use antisuit injunctions in equity “to present a defense that was not recognized at law”^[219]—such as where a party was “deprived of his rights by fraud, or accident, or mistake.”^[220] Or they could use antisuit injunctions where a position “would be inadequately protected by being raised as a defense in a legal proceeding”^[221]—such as where “some distinctively equitable relief” like “a cancellation or a reformation of the instrument sued upon” was necessary to satisfy “the ends of justice.”^[222] Accordingly, not all prospective legal defendants could avail themselves of this equitable tool: One had to make the familiar showing that legal remedies were inadequate.^[223] But as the fact that remedies like contract reformation could accompany antisuit injunctions shows, where a suit was cognizable in equity, this device was adaptable to “determine the whole cause” for the purpose of providing “a full settlement of the controversy” and “a complete protection of the defendant’s rights.”^[224]

While courts and commentators have described Young as establishing an exception to sovereign immunity and creating a new cause of action,^[225] Harrison disputes both characterizations. Since “[s]overeign immunity permits private people to assert defenses against the government,” he argues, “a suit against an officer that enforces a defense is consistent with sovereign immunity, not an exception to it.”^[226] Likewise, because “[a]nti-suit injunctions have long been a standard tool of equity, . . . in approving one the Court in Young did not recognize a novel cause of action applicable only to government officers.”^[227] This history also falsifies the idea that Young fashioned a fiction allowing courts to ignore the effect of equitable relief on states, Harrison argues. Since raising defenses against the government does not violate sovereign immunity, seeking an antisuit injunction against a government official “does not require a fiction to cover up a violation of sovereign immunity.”^[228] Finally, this understanding resolves Young’s ostensible paradox, Harrison asserts. Because the susceptibility of officials to antisuit injunctions does “not derive from a rule applying only to the State[s], . . . there is no paradox” by which defendants need “both to affirm and deny” that they are part of the government.^[229]

While the Court purported to apply an exacting historical analysis in Jackson, only Justice Thomas’s solo opinion specifically endorsed the revisionist theory.^[230] In CASA, by contrast, the majority gestured at the antisuit rationale. Dissenting from the conclusion that universal injunctions were too far afield from traditional equitable practices, Justice Sotomayor relied on Young to argue that the majority’s historical inquiry was unacceptably static. The Young remedy, she asserted, “traces back to the equity practice of mid-19th century courts”—and thus “finds no analogue in the relief exercised in the English Court of Chancery, which could not enjoin the Crown or English officers.”^[231] Attempting to brush that point aside in a footnote, the majority responded that “[h]istorically, a court of equity could issue an antisuit injunction to prevent an officer from engaging in tortious conduct.”^[232]

Professor Harrison’s account of Young is revisionist in the sense that it prompts questions about whether some prominent doctrinal implications from the decision “need to be reconsidered.”^[233] Of particular pertinence here, Harrison contends that if Young did not create a new exception to sovereign immunity but instead continued an old exclusion, we should not see the decision as licensing (further) exceptions.^[234] Accordingly, he asserts, Young should not allow litigants to subject state defendants to affirmative injunctive relief, whether in the contract sphere or otherwise.^[235]

2. The Restorationist Version

Some scholars see Young’s history differently than Professor Harrison does—and contend that a more complete picture of the remedy’s precursors would justify its present scope. In particular, Professor Pfander and Mr. Wentzel have argued that the pedigree for relief preventing the implementation of unlawful statutes includes a trio of writs that crossed from law into equity.^[236] “Because equity emerged as a ‘supplementary’ system which ‘at every point . . . presupposed the existence of common law,’” they assert, a traditionalist examination should view equity “in its historical context—not in isolation from, but in relation to, the relief available at common law.”^[237] And here, that context includes the writs of mandamus, certiorari, and prohibition—all of which began as means for the common-law Court of King’s Bench to supervise the nascent British administrative state.^[238] Throughout the nineteenth century in the United States, Pfander and Wentzel argue, those writs merged into and expanded the preexisting writ of injunction in equity.^[239]

Mandamus, certiorari, and prohibition previously served as tools to review the conduct of lower or specialized courts.^[240] In the early seventeenth century, however, with the Privy Council proving impotent to hold early administrative officials accountable to the law in large part because of that body’s close ties to the Crown, Sir Edward Coke led the King’s Bench in repurposing those writs to help supervise government more broadly.^[241] In Bagg’s Case in 1614, for example, Coke used the writ of restitution, the forerunner of mandamus, to order a local council to restore a man’s “‘franchise and freedom’” based on the jurisdictional theory that “‘to this Court of King’s Bench belongs [the] authority, not only to correct errors in judicial proceedings, but other errors and misdemeanors extra-judicial, tending to the breach of peace, or oppression of the subjects, or . . . any manner of misgovernment.’”^[242]

As Pfander and Wentzel explain: “From the mid-seventeenth through the mid-nineteenth centuries, King’s Bench zealously oversaw ‘the business of local government’ by ‘keeping subordinate bodies within their legal limitations by writs of certiorari and prohibition’ and ‘ordering them to perform their duties by writs of mandamus.’”^[243] In particular, certiorari and mandamus “quickly established themselves as ‘the twin pillars of the common law of judicial control,’ the former serving to quash unlawful exercises of discretionary authority and the latter to compel the performance of nondiscretionary duties.”^[244] Prohibition, meanwhile, worked as an adjunct to certiorari—with prohibition empowering the court to avert unlawful judicial or administrative action before it occurred and certiorari empowering the court to annul such action after it happened.^[245]

Across the pond, mandamus made a conspicuous appearance as a means of supervising executive action in Marbury v. Madison, which the Supreme Court decided in 1803.^[246] The ultimate holding of Chief Justice Marshall’s opinion for the Court was, of course, that the Justices did not have jurisdiction to issue the writ to require the delivery of William Marbury’s commission.^[247] But that was as a matter of the Court’s original jurisdiction; Marshall went out of his way to make clear that mandamus was an appropriate remedy for federal courts to grant more generally.^[248] Nevertheless, Chief Justice Taney reduced the scope of the writ with Decatur v. Paulding in 1840^[249]—“a move that enjoyed little support in mandamus tradition,” Pfander and Wentzel assert.^[250] Mandamus thereafter applied in federal court only to correct blatantly obvious instances of unlawful executive action.^[251] But compared with their experience at the federal level, the writs of mandamus and certiorari “fared much better at the state level, where they remained important ‘organ[s] of administrative oversight and control’ for much of the nineteenth century.”^[252] The writ of prohibition, meanwhile, fell into disuse against executive officials.^[253] That, Pfander and Wentzel argue, both explicitly and implicitly contributed to state courts’ expanded reliance on the equitable writ of injunction, which could also serve to declare government action unlawful on a prospective basis.^[254]

Indeed, Pfander and Wentzel assert that in the latter half of the nineteenth century, the injunction in equity subsumed much of the function previously fulfilled by the administrative writs at law.^[255] The admixture owed much to New York’s Field Code, which in 1848 made law and equity available in a single action and provided a pattern for other states to follow in reforming their own procedural rules.^[256] “Once state judges had access to both common law and equitable remedies in the same action,” Pfander and Wentzel explain, “they exhibited a much greater willingness to utilize those of equity, which by their very nature were more ‘readily adaptable to [the] practical needs of [the] modern system of judicial review.’”^[257] In addition to prohibition’s desuetude, for example, Pfander and Wentzel point to the problem that mandamus relief was entirely affirmative, leaving a gap for equity to fill where petitioners sought the fulfillment of nondiscretionary government duties via negative relief.^[258]

In the federal system, Pfander and Wentzel argue, the injunction’s public-law province grew from preventing tort-like conduct by government officials and canceling invalid patents before the Civil War to requiring lawful conduct more generally on the part of government parties in the postbellum period.^[259] Although earlier cases inaugurated the transition, Pfander and Wentzel contend that congressional enactment in 1875 of what was effectively the first statute to confer general federal-question jurisdiction on the federal courts was critical to this crescendo.^[260] Shortly thereafter, they explain, “the lower federal courts ‘began entertaining bills of equity that sought to enjoin allegedly unlawful administrative action’ based ‘on the theory that [they] needed only a grant of jurisdiction . . . in order to exercise the powers of a court of equity.’”^[261] And “[f]rom that moment forward, federal courts at all levels routinely recognized the availability of equitable relief against unlawful government action.”^[262]

This trend persisted through the end of the nineteenth century, producing multiple decisions on which Young relied.^[263] “In case after case challenging unlawful state action, the Supreme Court continued to invoke the common law tradition in support of the interposition of equity,” Pfander and Wentzel observe, including in Allen v. Baltimore & Ohio Railroad Co., Poindexter v. Greenhow, Pennoyer v. McConnaughy, and Reagan v. Farmers’ Loan & Trust Co.^[264] On this understanding, Young was but a marginal variation on a deeply rooted and resonant theme. The inapplicability of sovereign immunity to this conception of Young is not difficult to understand, Pfander and Wentzel contend.^[265] For the English law from which the relevant injunctions grew viewed the administrative writs as “command[ing] rogue officers to do ‘right and justice’” and thus “‘never regarded officers as possessing any particular immunities resulting from their position as officers.’”^[266]

Just as Professor Harrison’s project is revisionist in the sense that it purports to undermine doctrinal implications from Young suggesting a broad scope of relief, Pfander and Wentzel’s project is restorationist in the sense that it seeks to vindicate such implications. As especially relevant here, Pfander and Wentzel argue that “[t]he common law origin story expands the potential scope of federal remediation well beyond the negation remedy contemplated in Harrison’s antisuit model.”^[267] Locating Young’s roots in the administrative writs allows courts to award affirmative injunctive relief against government defendants where necessary to maintain consistency with the law, they contend. For the administrative writs themselves offered a “relatively expansive collection of remedies.”^[268]

B. Application to Suits Against States

With the above understandings of the historical approach to federal courts’ equity jurisdiction, we can ask how the revisionist and restorationist versions of Young’s background might apply to suits against states challenging laws backed by coercive private-enforcement schemes. But before we get to that particular question, it is worth considering a more general methodological matter.

Grupo Mexicano professed “not [to] question the proposition that equity is flexible.”^[269] But the Court offered few clues about what that might mean. At what point, then, does bending traditional remedies cause a prohibited break with the past? “[R]elief that has been specifically disclaimed by longstanding judicial precedent” is especially suspicious, Grupo Mexicano suggested.^[270] And “wrenching departure[s] from past practice” (as well as “dramatic departure[s] from prior practice” and “substantial expansion[s] of past practice”) fall within the purview of Congress, not the courts.^[271] But combined with the caveat that some unspecified amount of flexibility is fine, those standards seem quite vague.

CASA does not provide much clarity either. In dissent, Justice Sotomayor asserted that Grupo Mexicano “does not dictate the level of generality” at which to compare past and present remedies—and criticized the majority for “fundamentally misunderstand[ing] the nature of equity by freezing in amber the precise remedies available” in 1789.^[272] Rejecting that characterization, Justice Barrett’s opinion for the Court pointed to Grupo Mexicano: “We said it before, and say it again: ‘[E]quity is flexible.’”^[273] “At the same time,” the majority continued, this “‘flexibility is confined within the broad boundaries of traditional equitable relief,’” meaning that “[a] modern device need not have an exact historical match, but . . . must have a founding-era antecedent.”^[274] Universal injunctions did not qualify because “a sufficiently comparable predecessor” was not “available from a court of equity at the time of our country’s inception.”^[275] But that just begs the question of what qualifies as a “sufficiently comparable predecessor.” Class actions, it seems, are close enough to the historical form of litigation known as the bill of peace.^[276] But petitions for universal injunctions are not.^[277] And despite describing differences between bills of peace and requests for universal injunctions (and borrowing a memorable dragon metaphor),^[278] the Court again neglected to provide a transferable test to guide future inquiries into when differences in remedial degree become differences in jurisdictional kind.

For his part, Professor Bray finds Grupo Mexicano’s approach overly rigid. He has argued that by placing so much weight on the particular remedies available in 1789, Justice Scalia’s majority opinion “was seeking an equity that seemed almost frozen in time.”^[279] But, he continues, “the solution is not to turn to the ‘grand aims of equity’ offered by the dissent.”^[280] For the principles of “flexibility and adaptability,” when “standing apart from more specific equitable doctrines and practices, offer no guidance to lower courts.”^[281] Instead, Bray praises the Court’s post-Grupo Mexicano synthesis of an “artificial” and “idealized” history that “tend[s] to draw from the equity of the middle-to-late nineteenth century and the early twentieth century” but that “sometimes” includes “more recent cases and scholarship” as well.^[282] That body of law, he submits, combines the virtues of having both a core of definite content, as Congress would expect in enacting laws referencing “equitable” relief, and equity’s characteristic “capacity for change” by way of “modest updating.”^[283]

One aspect of Grupo Mexicano that would have seemed pertinent made no appearance in CASA. In Grupo Mexicano, the parties requesting equitable relief pointed to United States v. First National City Bank, a 1965 decision in a federal tax-assessment suit where the Court approved a preliminary injunction preventing a bank from transferring assets belonging to the taxpayer in question.^[284] Grupo Mexicano declared First National distinguishable on multiple grounds, one being that it “relied in part on the doctrine that courts of equity will ‘go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.’”^[285] That principle did not bear on Grupo Mexicano because the suit involved only a contract claim between private parties.^[286] Of course, CASA—where the paramount public interest in constitutional governance was front and center—was not limited to private transactions. But the Court applied Grupo Mexicano there without considering the public–private distinction.

As it turns out, the idea that federal courts’ equity jurisdiction can expand to accommodate matters that implicate the public interest traces back at least as far back as 1856. In Dodge v. Woolsey, the complainant was a citizen of Connecticut who owned stock in an Ohio bank.^[287] He filed what amounted to a shareholder derivative suit against the bank’s directors and a county official charged with collecting a state tax from the bank.^[288] Seeking to enjoin the tax’s enforcement, he alleged that the measure, which a recent revision to the state constitution had authorized, violated Article I’s Contract Clause because it exceeded the maximum levy permitted by the bank’s state charter.^[289] As the sole defendant contesting the case, the tax collector argued that federal courts lacked equity jurisdiction over derivative suits.^[290] The majority opinion by Justice Wayne rejected that argument. While acknowledging “a conflict of judicial authority” that had existed until at least a couple years prior,^[291] the Court asserted that “[i]t is now no longer doubted, either in England or the United States, that courts of equity, in both, have a jurisdiction over corporations, at the instance of one or more of their members,” including for purposes of enjoining corporate managers from violating their companies’ charters.^[292] Critically, that jurisdiction also reached the tax collector, the Court said, for it was appropriate to issue injunctive relief against “any proceedings by individuals, in whatever character they may profess to act.”^[293]

The Court relied on the public interest to justify this expansion. “[I]t has been found necessary,” the majority asserted, “for prevention of injuries for which common-law courts were inadequate, to entertain in equity such a jurisdiction in the progressive development of the powers and effects of private corporations upon all the business and interests of society.”^[294] Indeed, the Court pronounced, “it was not [the complainant’s] interest alone which would be affected by the result” of his challenge to the state tax.^[295] “Hundreds” of people were “concerned in the question,” and “millions upon millions of banking capital” would “be affected.”^[296] Nor was the public interest limited to pecuniary concerns. The balance of the opinion, which rejected defenses based on manufactured diversity jurisdiction and state sovereign immunity, presaged Young by insisting on the importance of making federal courts available to keep government within constitutional bounds. Because “it was thought that [Congress] and the state legislatures might pass laws conflicting with the letter or the spirit of the constitution under which they legislated,” the Court stated, “it became necessary to make a judicial department for the United States,” without which “neither the powers of the constitution nor the purposes for which they were given could have been attained.”^[297] Summing things up by quoting Alexander Hamilton from Federalist No. 22 (which he incorrectly attributed to James Madison), Wayne declared that “‘[l]aws are a dead letter without courts to expound and define their true meaning and operation.’”^[298]

In sum, Grupo Mexicano “does not dictate the level of generality” at which to assess present equitable practices against their historical precursors.^[299] Neither does CASA. But since at least 1855, including in Grupo Mexicano itself, the Court has reasoned that decisions regarding the scope of federal courts’ equity jurisdiction may respond to the public interest in the relief requested. And in cases like Dodge and Young, that principle has applied to questions about the propriety of raising constitutional claims against particular governmental parties. At the very least, then, the analysis should allow more leeway in the present context than the Court accorded in Grupo Mexicano itself—an assertion that dovetails with Professor Bray’s argument that rigid application of the historical approach misunderstands the “music” of equity.^[300]

1. The Revisionist Version

According to the Supreme Court, federal courts may not “create remedies previously unknown to equity jurisprudence,” with past cases focusing on “the jurisdiction in equity exercised by the High Court of Chancery in England” at the time of the divided bench in 1789.^[301] Looking to that period, Professor Harrison’s revisionist version of Young views suits against government officials to prevent the enforcement of unconstitutional laws as falling within the traditional lineage of antisuit injunctions.^[302] To what extent might that approach permit plaintiffs to sue states themselves in constitutional challenges to state laws backed by private-enforcement schemes?

There are meaningful ways in which the litigation underlying Young looked like a conventional antisuit case—and in which suing states to contest constitutionally suspect laws with coercive private-enforcement schemes, like S.B. 8, would too. The litigation underlying Young looked like a conventional antisuit case in the sense that the complainants presented “several grounds on which it would be unreasonable to demand that the railroads violate the rates, wait to be sued by Minnesota, and present their federal arguments as defenses,” such that their defenses were practically unavailable at law.^[303] The same would be true for suits against states challenging private-enforcement schemes with immense penalties for violating them. The litigation underlying Young also looked like a conventional antisuit case because the complainants sought only negative relief. The same would be true for suits against states challenging private-enforcement schemes like S.B. 8, where parties just want to avoid the application of constitutionally suspect regulations and where the remedy would not partake of the affirmative qualities that some see as too far removed from Young’s roots.^[304] In these ways, allowing suits against states in the circumstances envisioned here would not intrude on state sovereignty any more than Young itself did—which, in Harrison’s formulation, was not at all.

Young did not characterize itself as an antisuit case. And while Young’s “reasoning is in important ways congruent with the anti-suit explanation,”^[305] even under the revisionist view, the decision also represents a step beyond that framework. The main proposition for which Young has become known—that the Constitution strips an official who enforces an ultra vires law from his identification with the state—was not novel, but its application to the circumstances at bar broke ground. As Professor Harrison has observed, Young “was a watershed for good reason.”^[306] The Minnesota attorney general “had a plan to avoid judicial review by making the traditional way of obtaining it too costly.”^[307] The Court “found that arrangement per se unconstitutional.”^[308] And “[b]y approving the anticipatory proceeding brought by a person subject to a statute, the Court substantially changed the law of constitutional remedies.”^[309] What is more, Young accomplished that alteration through a series of smaller changes—including declaring a technically available defense to a public enforcement proceeding an inadequate remedy, curtailing the idea that equity will not interfere with criminal processes, likening the enforcement of an unconstitutional statute to a tort, and “fritter[ing] away or put[ting] out of sight” inconvenient precedent.^[310]

Accordingly, to the extent the current Court abides Young’s “substantial[] change[]” to constitutional remedies as consistent with equitable traditionalism (which it says it does),^[311] the Court should also abide further adjustments of similar or smaller scope as part of “the proposition that equity is flexible” (which it says it believes).^[312] As discussed above, allowing suits against states in this context would have no practical effect other than changing the name of the defendant. And in the enforcement analogue of Young as an antisuit action, the state (or the “People”) would have been the plaintiff (or the prosecution) anyway. The hypothetical enforcement action, that is, would not have been brought in the names of the executive officials against whom Young allowed suit; it would have been brought in the name of the state itself. As Professor Woolhandler has observed, Harrison’s “argu[ment] that the antisuit injunction is really a defensive action” thus suggests “that a suit against the state should be allowed under the reasoning of Cohens v. Virginia.”^[313] Cohens made clear that for regulated parties to defend against—and appeal unfavorable judgments in—state enforcement actions does not offend sovereign immunity.^[314] Plus, Woolhandler adds, “[t]his argument could be bolstered by the Court’s repeatedly treating the state as a proper party to defend the constitutionality of its laws, even if its officials are not involved in enforcement of the law.”^[315]

Professor Harrison touches on the significance, or not, of Young doctrine’s substituting officials as antisuit-action defendants for states as enforcement-action plaintiffs. “Because the railroads’ complaint . . . did not name Minnesota as a defendant” in Young itself, he notes, “it was consistent with a purely formal principle that a State may not be made a defendant on the record.”^[316] Sovereign immunity “may” include a rule like that, Harrison hypothesizes, “derived ultimately from ideas about personal jurisdiction.”^[317] But he correctly notes that “sovereign immunity is mainly about the substance of a decree’s effect on a state,” such that “[c]ourts must look behind the form to the substance.”^[318] Accordingly, Harrison argues, “[a] suit seeking an order that an officer make a payment from the state treasury is indeed really one in which the state is a defendant, because the nominal plaintiffs seek affirmative relief.”^[319] In the case underlying Young, “the nominal plaintiffs wanted nothing more from the State than to be let alone; in more formal legal terms, they sought to assert a defense, not a claim for affirmative relief,” thus maintaining consistency with state sovereign immunity.^[320] That analysis arguably supports making states suable where necessary to attain judicial review. To draw the line at allowing suits against state officials without allowing suits against states themselves even where there are no officials against whom to file suit is to place not just form, but also fiction, over function.

Further support for this argument may come from an unexpected source. The Supreme Court’s 1890 decision in Hans v. Louisiana is famous for adopting an understanding of state sovereign immunity that is broader than the text of the Eleventh Amendment.^[321] In the dispute at bar, Hans rejected an attack under the Contract Clause on an amendment to the Louisiana Constitution that disavowed the state’s obligation to honor certain bonds.^[322] Some have argued that the Court’s extension of immunity to suits against complainants’ own states did not include constitutional questions on the theory that the action in Hans itself was “nothing more than a common-law contract claim.”^[323] But even assuming that the decision’s capacious articulation of sovereign immunity did include constitutional claims, Hans left room to pursue constitutional defenses through declaratory or injunctive relief—including, arguably, against states themselves.

Toward the end of the majority opinion, Justice Bradley included the cryptic proviso that “[w]hilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be judicially resisted, and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment.”^[324] Given the outcome in Hans, what modes of “judicial[] resist[ance]” could Bradley have had in mind? In one of the Virginia Coupon Cases five years earlier, Bradley wrote that “where the State or its officers moves against” a citizen, “he may defend himself, in every proper way, by habeas corpus, by defence to prosecutions, by actions brought on his own behalf, by injunction, by mandamus.”^[325] Bradley continued: “Any one of these modes of redress, suitable to his case, is open to him.”^[326] For “[a] citizen cannot, in any way, be harassed, injured or destroyed by unconstitutional laws without having some legal means of resistance or redress.”^[327]

This was a strong sentiment, and it may support antisuit actions against states qua states where necessary to obtain relief from unconstitutional regulation—and should help show why such actions would not diminish state sovereignty. For (at the risk of repetition) the quotations above acknowledge that a citizen may need to “defend himself” from movements of “the State” or “its officers”—including “by actions brought on his own behalf” and “by injunctions”—and emphasizes that he “cannot, in any way, be harassed, injured, or destroyed by unconstitutional laws” absent legal recourse. Sovereign immunity had nothing to say about purely defensive positions against the enforcement of unconstitutional laws, Bradley contended, even where asserted from the complainant’s side of a case. “The right to all these means of protection and redress against unconstitutional oppression and exaction is a very different thing from the right to coerce the State into a fulfillment of its contracts,” he argued.^[328] “The one is an indefeasible right, a right which cannot be taken away; the other is never a right, but may or may not be conceded by the State . . . .”^[329] In the same Virginia Coupon Cases opinion, moreover, Bradley pooh-poohed the formalist distinction between suits against states and suits against state officials as “mere pretence” in the context of the real-party-in-interest doctrine.^[330] If a state “act[s] unconstitutionally,” he contended, it is silly to say it is “not the State that acts.”^[331]

More broadly, Hans, like many early sovereign-immunity cases, was a suit about money a state allegedly owed during a period of post-war turmoil. Were states required to pay such debts, the thinking went, they faced the prospect of real financial harm.^[332] The Supreme Court vigilantly protected states’ treasuries in those circumstances—and in others seeking to impose affirmative or monetary obligations on states.^[333] But where citizens alleged constitutional violations absent attempts to access state coffers, as in the Hans proviso, the Court proved far less solicitous of sovereign immunity. Young continued that trend. To be sure, the Rehnquist Court insisted that “[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.”^[334] But the fact that courts have long issued functionally indistinguishable remedies against state officials in their official capacities suggests that whatever a state’s dignity entails, Young relief against states should not impermissibly impinge on it. (And the fact that the federal government, which also enjoys sovereign immunity, has long allowed private parties to seek declaratory and injunctive remedies against the United States to prevent the enforcement of unconstitutional statutes bolsters that suggestion.^[335]) Accordingly, whether viewed from a structural or revisionist historical perspective, Young supports the notion that where necessary to avoid crippling consequences from unconstitutional laws, as in the coercive private-enforcement context, plaintiffs should be able to seek relief against states themselves.

The 1899 case Fitts v. McGhee may complicate that conclusion.^[336] In Fitts, Alabama set maximum tolls for crossing a bridge.^[337] The penalty for charging higher tolls was twenty dollars per offense, payable to the overcharged individual and recoverable before a justice of the peace or notary public.^[338] As Young explained, “No officer of the State had any official connection with the recovery of such penalties.”^[339] The complainants (the company that owned the bridge and two individual receivers), sued Alabama and various executive officials on claims that the statutory rate was unconstitutionally low.^[340] As relief, they sought an injunction prohibiting the officials “and all persons whomsoever” from enforcing the act.^[341] Even after the complainants voluntarily dismissed the suit against the state itself, the Court granted the defendants sovereign immunity.^[342] Absent any executive official with enforcement authority for the complainants to target as akin to a tortfeasor, the Court explained, “this suit against its officers is really one against the State.”^[343] Young relied on that aspect of Fitts’s analysis to distinguish the case, reasoning that Minnesota’s attorney general was a proper defendant because despite the statute in question not assigning him any specific duties, he could implement the maximum rates under his general enforcement authority.^[344]

There are real tensions between the overall conceptions of state sovereign immunity articulated in Fitts (which Justice Harlan authored) and Young (from which Harlan alone dissented).^[345] It is not clear, therefore, that Fitts remains good law. The Court did not even cite it in Jackson, notwithstanding the obvious similarities. But specific aspects of Fitts also distinguish it from cases like Young and Jackson. Despite declaring themselves “remediless,”^[346] the Fitts complainants and other parties subject to the maximum tolls could have sought defensive relief elsewhere. The penalty of twenty dollars for violating the statute in question was not so onerous as to dissuade parties from testing it. Indeed, the complaint itself alleged that “frequent and numerous demands had been made by persons on foot, on horseback and in vehicles of the toll-gate keeper at the bridge to pass them over at the rate of toll fixed by the act”—and that when the toll-taker refused, the travelers paid under protest and threatened to sue.^[347] All those persons “were too numerous to be made parties” in the challenge to the tolls.^[348] But the complainants added one threat-maker, William Gilliam, as a defendant, and the circuit court entered an injunction against him.^[349] While the complainants’ challenge was pending in federal court, moreover, a state grand jury issued indictments “some one hundred in number” against two of the bridge owner’s toll-takers under a separate statute making it a crime to charge rates that were higher than specified in a company’s charter or (if the charter did not include a toll) that were otherwise “‘unreasonable.’”^[350]

All this mattered to the Supreme Court. With respect to the threats of suit against the bridge owner, the Court declared that “the citizen is not without effective remedy, when proceeded against under a legislative enactment void for repugnancy to the supreme law of the land” because “he can make his defence upon the ground that the statute is unconstitutional and void.”^[351] Likewise with respect to the criminal indictments against the bridge owner’s toll-takers: “Let them appear to the indictment and defend themselves upon the ground that the state statute is repugnant to the Constitution of the United States.”^[352]

There are still more distinctions between Fitts on the one hand and Young-type cases on the other. The fact that the toll dispute had progressed to state criminal proceedings was especially salient in Fitts for both equity and federalism reasons. Equity “‘has no jurisdiction over the prosecution, the punishment or the pardon of crimes and misdemeanors,’” the Court said.^[353] And state tribunals are “competent” and duty-bound “to enforce the mandates of the supreme law of the land.”^[354] The Justices observed that if the toll-takers’ constitutional defense failed all the way up the state-court system, “the judgment may be reexamined by this court upon writ of error.”^[355] Foreshadowing what is now known as Younger abstention,^[356] the Court thus concluded that the complainants furnished “no reason why a Federal court of equity should assume to interfere with the ordinary course of criminal procedure in a state court.”^[357] Finally, the complainants premised their due-process and equal-protection claims on property rights they attributed to a state contract.^[358] That maneuver could have brought the case within the real-party-in-interest precedent granting state sovereign immunity in contract disputes.^[359]

In short, Fitts did not involve parties for whom judicial review of an allegedly unconstitutional statute was practically unavailable. It also presented especially sensitive equity and federalism issues and exhibited connections to the forbidden contract context. All these aspects make the Court’s rejection of injunctive relief and invocation of sovereign immunity there distinguishable from the situation potentially justifying Young suits against states raising constitutional challenges to laws with coercive private-enforcement schemes where complainants have no effective alternative means of review.

2. The Restorationist Version

The restorationist version of Young, championed by Professor Pfander and Mr. Wentzel, posits that preventive relief against unlawful executive action derives less from antisuit injunctions and more from three common-law “administrative writs”: mandamus, certiorari, and prohibition.^[360] Two aspects of this theory are especially relevant to the issue of state suability in constitutional challenges to laws with coercive private-enforcement schemes. The first concerns the relevant time period for the inquiry. The second concerns what understanding suits seeking the administrative writs as “public actions” may mean for state sovereign immunity today.

Pfander and Wentzel are skeptical about the Supreme Court’s close focus on equitable practices as of 1789. “One can question this turn to history as the measure of federal equity today,” they observe.^[361] “Times and contexts have changed; equitable forms tailored to an eighteenth-century English constitutional monarchy may not fit the remedial needs of suitors in a twenty-first century republic.”^[362] Nevertheless, they say, “accepting the premise that historical precursors can help inform the scope of appropriate equitable relief today, one must take care to get the history right.”^[363]

Analyzing CASA, Professor Jack Goldsmith has sought to do just that. In CASA, the Court accepted Grupo Mexicano’s recognition of 1789 as the pertinent historical touchpoint on the ground that “[t]he Judiciary Act of 1789 endowed federal courts with jurisdiction over ‘all suits . . . in equity,’ and still today, this statute ‘is what authorizes the federal courts to issue equitable remedies.’”^[364] The problem, Goldsmith asserts, is that while one could view the Judiciary Act of 1789 as the source of equity jurisdiction for the kinds of cases federal courts could adjudicate at that time, that logic should see later enactments as responsible for conferring equity jurisdiction over other kinds of cases.^[365] Accordingly, “[i]t made at least some sense” for Grupo Mexicano to look to 1789 because Grupo Mexicano was a diversity case, and the Judiciary Act of 1789 provides the statutory foundation for federal courts to decide diversity cases.^[366] CASA, by contrast, should have looked to 1875 because CASA was a federal-question case and general federal-question jurisdiction traces back to a statute from that year.^[367] So, “on the Court’s own logic,” Goldsmith asserts, “the temporal focus should have been on 1875, not 1789.”^[368]

CASA concerned universal injunctions. Accepting arguendo the Court’s conclusion that “universal injunctions were not a feature of federal-court litigation until sometime in the 20th century,”^[369] Goldsmith notes that the distinction between practices as of 1789 and 1875 might not have made a difference in that case.^[370] But he observes that it “might well matter in other federal question cases, and in particular might influence the future contours of Ex parte Young.”^[371] For—as Pfander and Wentzel have demonstrated—“[p]rinciples of equity and equitable remedies changed in nontrivial ways between 1789 and 1875, and were in flux in the post-Civil War period.”^[372] In addition, looking to the development of equitable practices over the course of the 1800s (and even somewhat past Young) would dovetail with Professor Bray’s endorsement of “draw[ing] from the equity of the middle-to-late nineteenth century and the early twentieth century.”^[373]

If the Court were to prove more willing to consider post-1789 developments, the restorationist argument that equity underwent a significant expansion in the public-law arena during the nineteenth century to integrate effective tools for controlling unlawful government conduct could support the incremental step of extending Young to suits against states in the circumstances under consideration here. That should be especially true in light of the federal legislative and judicial focus during Reconstruction on compelling state conduct to conform to federal law—which helped motivate the establishment of general federal-question jurisdiction in the first place.^[374] And it should also be true in light of how federal courts understood such jurisdiction at the time as relaxing traditional restraints on the injunction’s reach.^[375]

Understanding Young’s history as incorporating the administrative writs also affects the sovereign-immunity analysis. At common law in England, government officials could not assert sovereign immunity against requests for mandamus, certiorari, or prohibition.^[376] The unavailability of that defense arose from the “unique procedural posture” of suits seeking the writs as “public actions” descended from the actio popularis at Roman law.^[377] That understanding, Pfander and Wentzel explain, meant that private parties “typically prosecuted” the writs “in the name of the Crown” and that the writs issued as a “‘command’” “from the monarch herself.”^[378] The law surrounding the administrative writs thus associated the sovereign not with the defendant, but with the plaintiff and the court—which makes the absence of sovereign immunity entirely logical.

The public character of the administrative writs followed them into the United States. “Understood in England as proceedings brought in the name of the Crown, administrative writs evolved in the American republic into suits brought (much like criminal proceedings) in the name of the people,” Pfander and Wentzel explain.^[379] Proceedings seeking mandamus, certiorari, or prohibition were captioned accordingly, “with federal courts naming the plaintiff as ‘United States ex rel. [relator]’ or even just ‘United States,’ and state courts doing the same with the words ‘state,’ ‘commonwealth,’ or ‘people.’”^[380] American courts likewise rejected bids for sovereign immunity in such circumstances.^[381] In one case before the Supreme Judicial Court of Massachusetts, for example, a private railroad that owned land taken by a state-owned railroad challenged the applicable compensation scheme.^[382] The private railroad sought a writ of prohibition against county commissioners to stop a proceeding that would have assessed the amount of damages due under the suspect statute.^[383] The court declared that “[t]he fact that an agent of the Commonwealth is the adverse party in the proceedings before the county commissioners affords no reason for refusing the writ.”^[384] For “[a] writ of prohibition, like a writ of mandamus or of certiorari, is properly sued out in the name of the Crown or the State.”^[385]

Pfander and Wentzel’s argument that this history renders sovereign immunity unavailable in Young-style suits should reach cases against states themselves—and thus further supports the idea that such suits would not diminish state sovereignty. The character of Young-style cases as public actions brought (now figuratively) in the name of the tribunal’s sovereign is key. For in federal courts, the tribunal’s sovereign is the United States, and states cannot claim sovereign immunity from suits prosecuted by the federal government. When the United States sues a state, Justice Harlan explained for the Supreme Court in 1892, the state “is not called to the bar . . . at the suit of an individual, but at the suit of the government established for the common and equal benefit of the people of all the States.”^[386] And “[t]he submission to judicial solution of controversies arising between these two governments . . . does no violence to the inherent nature of sovereignty.”^[387]

The Court wrestled with the implications of this principle for mixed private and public suits in Vermont Agency of Natural Resources v. United States ex rel. Stevens, decided in 2000.^[388] The question was whether private plaintiffs could sue state entities under the False Claims Act (FCA).^[389] Tracing back to 1863, the FCA provides for civil liability against “any person” who, among other things, makes “false or fraudulent claim[s] for payment or approval” by the United States.^[390] The act authorizes qui tam litigation by which private plaintiffs (called “relators”) can sue both for themselves “and for the United States Government” “in the name of the Government.”^[391] Alternatively, the United States can bring FCA actions itself.^[392] Where qui tam relators file suit, the United States may intervene and lead the litigation.^[393] Whether the United States intervenes or not, relators are entitled to a portion of any proceeds (which generally include treble damages, civil penalties, attorneys’ fees, and costs), with the majority going to the federal government.^[394] Like the administrative writs, scholars have linked qui tam suits in the American tradition to the Roman actio popularis.^[395]

In Stevens, a qui tam relator sued the Vermont Agency of Natural Resources on the theory that it inflated the amount of time its employees spent working on projects funded by the Environmental Protection Agency, such that the state agency received more federal grant money than it was owed.^[396] The United States chose not to intervene, and the state agency moved to dismiss on two relevant grounds: (1) that state entities were not “‘person[s]’” who could be sued under the FCA and (2) that state entities had sovereign immunity from qui tam litigation in federal court.^[397] Justice Scalia’s majority opinion resolved the case on the first ground, holding that the FCA’s text did not extend liability to state entities.^[398] The Court then stated that “the doctrine that statutes should be construed so as to avoid difficult constitutional questions” “buttressed” that conclusion.^[399] “We of course express no view on the question whether an action in federal court by a qui tam relator against a State would run afoul of the Eleventh Amendment,” the Court continued.^[400] “[B]ut we note that there is ‘a serious doubt’ on that score.”^[401]

That last sentence may seem to suggest that the Court was sympathetic to the state agency’s assertion of sovereign immunity (if one does not look too closely, since the sentence can be read to say there is “a serious doubt” about whether the suits in question “would run afoul of the Eleventh Amendment”^[402]). But the fact that the majority found the matter “difficult” and took care to “express no view on the question” in the midst of a period when the Court was repeatedly and aggressively expanding state sovereign immunity indicates that the argument against such immunity was substantial.^[403]

Return, for a moment, to the founding. For the century between the Constitution’s ratification in 1788 and Hans in 1890,^[404] uncertainty mired much of the law surrounding state sovereign immunity. The status of the doctrine under the unamended Constitution, which expressly contemplated federal-court cognizance of suits involving states,^[405] was notoriously fuzzy. Of interest, though, all controversy during the constitutional drafting and ratification processes over the possibility of suing unconsenting states was focused on diversity jurisdiction rather than federal-question jurisdiction.^[406] By negative implication, then, the framers and public may not have viewed sovereign immunity as extending to federal-question suits. Or they may have “thought very little about” the issue.^[407] The English and early American experience with the administrative writs, especially when understood as public actions, could support the former possibility.

Additional evidence likewise suggests that state sovereign immunity may not have reached constitutional questions at the founding. When Edmund Randolph, a constitutional framer and the then-Attorney General of the United States, successfully argued against sovereign immunity in the 1793 case Chisholm v. Georgia, he portrayed any possibility that the doctrine extended to constitutional issues as a reductio ad absurdum.^[408] Even Justice Iredell, who led the effort to ratify the Constitution in North Carolina, distinguished between common-law and federal-question claims in his Chisholm dissent.^[409] “[E]ven if the Constitution would admit of the exercise of such a power” in the latter context, he said, “a new law” conferring statutory jurisdiction would be “necessary for the purpose, since no part of the existing law applies.”^[410] One could see that “new law” in the conferral of equity power as part of the grant of general federal-question jurisdiction in 1875. By awarding injunctive relief against a wide array of unlawful state-government action, the conduct of contemporary federal courts in response to that law supports such a possibility.

To bring this analysis full circle: The Eleventh Amendment, which was ratified in response to Chisholm, did not obviously reach federal-question suits, at least where complainants proceeded against their own states.^[411] (Chief Justice Marshall suggested as much in Cohens, for example.^[412]) To be sure, this point is contestable and, while helpful, not necessary to the broader argument offered here.^[413] And in any event, Hans extended state sovereign immunity to situations beyond the Eleventh Amendment’s text.^[414] But again, Justice Bradley’s proviso in Hans about “judicial[] resist[ance]”—especially when understood in light of his argument in the Virginia Coupon Cases about a citizen’s “indefeasible right” to “defend himself” against “be[ing] harassed, injured or destroyed by unconstitutional laws”^[415]—suggests that suits seeking to prevent the enforcement of such laws may not be subject to sovereign immunity.^[416] That principle would extend not only to antisuit injunctions, as argued above, but also (quoting Bradley again) to “actions brought on [the citizen’s] own behalf” more broadly—including to those requesting administrative writs like “mandamus” and, indeed, to those seeking “injunction[s]” at large,^[417] as in Young.

IV. Extending Young: Parties and Practicalities

The foregoing discussion argues that both the structural and historical accounts of Young provide support for allowing plaintiffs to sue states to challenge laws with coercive private-enforcement schemes in some circumstances—and that doing so would not diminish state sovereignty in our federalist system. Echoing the dissenters in the Jackson S.B. 8 case, commentators have suggested additional strategies for holding state-government defendants constitutionally accountable in this context. Some have called for court clerks to face suit.^[418] Others would allow actions against state courts and judges themselves.^[419] Still others advocate holding high-level executive officials like attorneys general susceptible to suit, notwithstanding state attempts to divest them of authority to implement particular laws.^[420] Additional scholars have fashioned multifaceted litigation arrangements that are admirable for their creativity but doubtful for their complexity.^[421]

Fully exploring and evaluating these alternatives falls beyond the scope of this project. It is fair to say, however, that they are all subject to substantial legal and practical complications. In contrast, the discussion that follows seeks to show that allowing suits against states in this context should prove relatively straightforward. This discussion responds to some potential questions and concerns, especially regarding the state-action requirement for constitutional litigation and the details of declaratory and injunctive relief against states.

A. State Action

“[T]he action inhibited by the first section of the Fourteenth Amendment”—through which the Due Process Clause, the Equal Protection Clause, and most of the Bill of Rights apply to states—“is only such action as may fairly be said to be that of the States.”^[422] This state-action requirement means that the Fourteenth Amendment, like most of the Constitution, “erects no shield against merely private conduct, however discriminatory or wrongful.”^[423] Young-type suits usually target the state action inherent in executing the law—and thus name executive officials as defendants. But that does not mean that constitutionally cognizable state action is limited to the executive context.

The legislature engages in state action by enacting legislation.^[424] Prominent precedent like Shelley v. Kraemer and New York Times v. Sullivan tells us that the judiciary also engages in state action by implementing the law.^[425] Shelley likewise suggests that private plaintiffs can engage in state action by enlisting the judiciary to enforce legal obligations,^[426] and other cases make clear that private individuals can exercise state power where deputized to do so.^[427] As the United States argued in United States v. Texas, the federal-government suit challenging S.B. 8:

S.B. 8 is a statute enacted by the Texas legislature, signed by the Texas governor, and enforceable in Texas courts. In a calculated effort to evade judicial review, the law delegates the State’s enforcement authority to members of the public who have no connection to the prohibited conduct. But it is the State that has empowered and encouraged those plaintiffs to sue. And it is the State that crafted this unprecedented regime in a deliberate attempt to make constitutionally protected abortions unavailable in Texas.^[428]

Dean Goldberg and Professor Zipursky agree: “[S]uits by S.B. 8 plaintiffs are in fact enforcement actions by the state because the state has actually deputized these plaintiffs to enforce Texas law.”^[429]

Plaintiffs, however, cannot necessarily sue to prevent all state actors from engaging in any state action. Attempts to subject legislative action to injunctive restraint would be problematic under absolute-immunity doctrine and principles enshrined in the First Amendment, the Guarantee Clause, and structural concepts of separated powers and state sovereignty, for example. And Jackson discussed practical difficulties that suing judicial employees could arguably entail.^[430] Even if someone seeking to challenge a coercive private-enforcement scheme could satisfy standing doctrine for purposes of suing a prospective private plaintiff, moreover, any resulting declaratory judgment or injunction would not automatically bind all prospective private plaintiffs. And endeavoring to sue the millions of members of the public who could one day move to enforce a statute like S.B. 8 would ensnare the challenger in an endless cycle of whack-a-mole-style litigation.

Given all this, to quote the Solicitor General’s brief in United States v. Texas, where “[i]t is . . . plain” that state action “is responsible for . . . constitutional violations” in the coercive private-enforcement context, where there is no official susceptible to effective relief, and where “sovereign immunity does not apply,” “[i]t should be equally plain” that the state itself “can be enjoined to prevent those violations.”^[431] Doing so, moreover, should not require an express statutory cause of action. The structural account often views Young as creating an implied cause of action,^[432] and both versions of the historical account view Young as rooted in jurisdictional traditions that provide sufficient support for courts to render equitable relief.^[433] As Justice Scalia wrote for the Supreme Court in 2015: “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.”^[434]

B. State Agents

How can winning declaratory or injunctive relief against a corporate body like a state, which can act only through natural persons, prevent constitutional violations? Federal Rule of Civil Procedure 65(d) provides that injunctions bind not only “the parties,” but also their “officers, agents, servants, employees, and attorneys” (which I just call their “agents” here).^[435] And an analogous tenet applies in the preclusion context, which governs the effects of declaratory judgments.^[436]

Courts regularly apply this principle to government officials. In one Tenth Circuit case, for instance, the court reasoned that “a facial challenge to a New Mexico statute, brought against the governor and attorney general of New Mexico in their official capacities,” constituted “an action against the State of New Mexico,” such that the resulting injunction could bind non-party district attorneys from enforcing the subject law.^[437] In the present context, then, declaratory judgments or injunctions against states should bind any executive officials who might have ancillary authority to implement the regime in question. Such relief could also potentially bind the state-court clerks who would docket private-enforcement actions and the state-court judges who would decide them—all of whom the federal government sought to restrain in United States v. Texas.^[438]

While it is difficult to find case law specifically holding clerks and judges bound under Rule 65(d) and preclusion doctrine, the reason does not appear to be that they are not government agents. (Of course they are.) Instead, at least for clerks, the reason appears to be that before Jackson, if a clerk’s conduct in handling an enforcement action was an immediate cause of a person’s constitutional injury, that person just sued the clerk directly. In a Third Circuit case, for instance, the court allowed the plaintiff to sue the local prothonotary (an old-fashioned term for the “chief clerk in certain courts of law”^[439]) to challenge Pennsylvania’s post-judgment garnishment procedures as violative of due process and preempted by federal statute.^[440] Performance of “the duties of the prothonotary” in “issuing the writ of execution” “had the same effect on the plaintiff’s rights that the Supreme Court found critical in Ex Parte Young,” the court declared.^[441] That action was an “immediate cause[] of the attachment and freezing of [the plaintiff’s] bank accounts,” such that if the garnishment procedures were unconstitutional, the prothonotary’s actions “caused an injury to [the plaintiff’s] legal rights.”^[442] Jackson foreclosed the path of suing clerks and judges directly in the private-enforcement context.^[443] But that does not mean that a plaintiff could not accomplish a similar outcome by suing the government for whom clerks and judges work in a proper controversy—especially given the legal and practical differences and protections that would flow from the latter posture.^[444]

Rule 65(d) also says that injunctions bind “other persons who are in active concert or participation with” the parties or their agents.^[445] In the present context, that could include plaintiffs who attempt to sue under an unconstitutional private-enforcement scheme after the entry of an injunction against the state—another target in United States v. Texas.^[446] Courts have made clear that “active concert or participation” is broad, such that the persons to whom this provision applies need not be subject to the control of government defendants. In the famous 1972 case United States v. Hall, for instance, the Fifth Circuit held that Rule 65(d) allowed the district court to reach an outside agitator who fomented “racial unrest and violence” against the implementation of a school-desegregation decree.^[447]

This procedural pathway includes legal and practical protections for those bound by declaratory or injunctive relief against states. Rule 65(d) applies only where the relevant persons have “receive[d] actual notice of [the injunction] by personal service or otherwise.”^[448] So neither judicial clerks nor prospective private-enforcement plaintiffs (for example) would be caught unawares about the legal responsibilities imposed by an injunction. And courts could require states themselves to provide instructions about how to effectuate such remedies.

In granting preliminary relief in the federal government’s S.B. 8 challenge, for instance, the district court specified that its injunction against Texas prohibited the state’s “officers, officials, agents, employees, and any other persons or entities acting on its behalf”—among them “state court judges and state court clerks”—“from enforcing [S.B. 8], including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to [S.B. 8].”^[449] And the court ordered the state to facilitate notice by “distribut[ing] this preliminary injunction to all state court judges and state court clerks” and by publishing it on “public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.”^[450] In addition, the court recognized that Texas itself might have better ideas about “the particulars” of this process—and thus made clear that “the State may propose different means of disseminating this information,” so long as those means would “still achieve the goals of informing the state judiciary and plainly informing the public of this preliminary injunction and its effect.”^[451]

What is more, the fact that particular persons are bound by declaratory or injunctive relief as agents of a corporate body does not make them parties to the underlying litigation, as suing them directly would. That should eliminate many of the anxieties and everyday burdens attendant to being sued—and should also address the Supreme Court’s concerns from Jackson, both doctrinal and prudential, about naming state-court judges and clerks as defendants.^[452] The adverseness requirement, for instance, would be satisfied by the challenger’s oppositional stance with respect to the state as an overarching entity;^[453] there is no requirement that plaintiffs demonstrate an adverse relationship as to each agent of a corporate defendant that a declaratory judgment or injunction will bind. Remedial details could be left to the state defendant to resolve, meaning that responsibility for complying with court orders would not fall, even as a formal matter, on the shoulders of individual state-court judges and clerks.^[454] Nor would judges and clerks have to worry about obtaining legal representation for federal-court challenges—or about their defense potentially contravening their duty of neutrality.^[455] Likewise, enjoining or granting declaratory relief against states is not the same as “‘enjoin[ing] the world at large’” or “purport[ing] to enjoin challenged ‘laws themselves,’”^[456] such that pursuing this strategy does not commit the so-called “writ-of-erasure fallacy.”^[457] The state would be the defendant, so the state (a sophisticated litigant) would handle representational and strategic decisions through the same channels as usual.

Beyond the basics, it should not be necessary for federal courts to anticipate or mandate every jot and tittle about how states should respond to a declaratory judgment or comply with their injunctive obligations. State lawyers and leaders should be capable of determining such matters in good faith, and for federal courts to interfere overmuch with the inner workings of state administration could raise independent sovereignty concerns. If challengers believe that state agents or private parties are disrespecting a declaratory judgment or injunction, courts can provide tailored guidance—and, if necessary, consequences for contempt.^[458] As the district court declared in the federal government’s S.B. 8 challenge: “Despite the Texas Attorney General’s lack of clarity about what the State would do in the face of a preliminary injunction, this Court trusts that the State will identify the correct state officers, officials, judges, clerks, and employees to comply with this Order.”^[459] Accordingly, the court said it would “rel[y] on the Texas Attorney General’s representation that the State ‘would [not] want to do anything that could lead to contempt.’”^[460]

Critically, none of this is new. Federal courts regularly enter declaratory and injunctive relief against states, including in cases brought by the federal government to block the operation of allegedly unconstitutional statutes.^[461] The Supreme Court itself “frequently issues injunctions binding upon states” in the exercise of its original jurisdiction over “Controversies between two or more States.”^[462] More often than not, those injunctions include express reference to restraining the state parties’ “officers,” “agents,” and the like.^[463] Some dating back to the early twentieth century even purport to operate against a state’s “citizens” or on other private persons.^[464] The point is that declaratory judgments and injunctions against states are well known to federal courts and have proven workable for quite a long time.

There is little reason to think that circumstances would play out differently in the context of constitutional challenges to state laws with coercive private-enforcement schemes. But even if Rule 65(d) and preclusion doctrine somehow failed to include clerks, judges, or private-enforcement plaintiffs within the scope of injunctions or declaratory judgments against states, the merits reasoning underlying such relief should permit private-enforcement defendants with declaratory judgments or injunctions to obtain efficient dismissals of suits. Or if such private-enforcement defendants learn of private-enforcement plaintiffs’ future plans to sue (which should overcome the standing hurdle identified in Jackson^[465]), they should be able to obtain anticipatory relief against such filings.^[466]

Conclusion

Sovereign immunity provides states potent protection from suits in federal court. But it does not grant them power to disregard citizens’ declared constitutional rights, like in the context of the Texas S.B. 8 abortion ban. This Article has demonstrated how sovereign immunity should not foreclose plaintiffs from obtaining declaratory and injunctive relief against states themselves when states themselves make other avenues to judicial review effectively impassable. To do so, the Article has examined the development of the doctrine surrounding Ex parte Young, which permits plaintiffs to sue state officials to prevent the enforcement of unconstitutional statutes, as a matter of both structural constitutional values and historical interpretive fidelity. Working through theoretical controversies and methodological uncertainties in the wake of the Supreme Court’s recent decision in Trump v. CASA, Inc., the Article has articulated and applied structural and historical accounts of Young to argue for state suability in limited circumstances involving coercive private-enforcement schemes aimed at evading constitutional accountability.

1. * Professor of Law, Cornell Law School; Affiliate, Stanford Constitutional Law Center. For valuable conversations and comments, thank you to Payvand Ahdout, Curt Bradley, Sam Bray, Sharon Brett, Aaron Bruhl, Brad Clark, Seth Davis, Mike Dorf, Dan Epps, Bridget Fahey, Maggie Gardner, Nick Handler, John Harrison, Vicki Jackson, Gillian Metzger, Darrell Miller, Jon Petkun, Jim Pfander, Steve Sachs, Bill Sage, Neil Siegel, Fred Smith, Steve Vladeck, Dan Walters, Garrett West, Ann Woolhandler, and Ernie Young. For opportunities to discuss this project, thank you to participants at faculty workshops at Cornell Law School, Emory Law School, the George Washington University Law School, and Washington University School of Law; the 2026 Federalist Society Annual Faculty Conference; the 2025 Duke Law School Judicial Administration/Judicial Process Roundtable hosted by the Bolch Judicial Institute; the Fundamentals and Frontiers of Federalism Conference hosted by the Texas A&M Center on the Structural Constitution and the Georgetown Center for the Constitution; a Texas A&M Public Law Roundtable; and the William & Mary Law School Roundtable on Federalism, the Courts & the Constitution. ↑

2. . 606 U.S. 831 (2025). ↑

3. . See Whole Woman’s Health v. Jackson, 595 U.S. 30, 35–36, 39, 43 (2021). ↑

4. . Id. at 35–36. ↑

5. . David A. Strauss, Rights, Remedies, and Texas’s S.B. 8, 2022 Sup. Ct. Rev. 81, 92. ↑

6. . 209 U.S. 123 (1908). ↑

7. . See William Baude, Jack Goldsmith, John F. Manning, James E. Pfander & Amanda L. Tyler, Hart and Wechsler’s The Federal Courts and the Federal System 1191 (8th ed. 2025) (“In its wake, Judge Henry Friendly described [Young] as the ‘fountainhead’ of civil rights enforcement; Professor Charles Alan Wright called it ‘indispensable’ . . . .”). ↑

8. . See Roe v. Wade, 410 U.S. 113, 120 (1973). ↑

9. . 347 U.S. 483 (1954); John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L.J. 2513, 2520 (1998). ↑

10. . 576 U.S. 644, 653–56 (2015) (relevant procedural background); id. at 681 (substantive conclusion). ↑

11. . 600 U.S. 570, 589 (2023) (substantive conclusion); 303 Creative LLC v. Elenis, 6 F.4th 1160, 1168, 1170 (10th Cir. 2021) (relevant procedural background), rev’d, 600 U.S. 570. ↑

12. . Baude et al., supra note 6, at 1190 (quoting Barry Friedman, The Story of Ex parte Young: Once Controversial, Now Canon, in Federal Courts Stories 247 (Vicki C. Jackson & Judith Resnik eds., 2010)). ↑

13. . See Richard H. Fallon, Jr., Constitutional Remedies: In One Era and Out the Other, 136 Harv. L. Rev. 1300, 1315 (2023). ↑

14. . See 209 U.S. 123, 161–62 (1908). ↑

15. . Id. at 161; Whole Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021). The Court did permit a Young suit to proceed against four officials from medical licensing agencies that it thought “may or must take enforcement actions” under the statute. Jackson, 595 U.S. at 45–46. In response to a certified question on remand, however, the Supreme Court of Texas said state law did not provide any such enforcement authority, which ended the plaintiffs’ challenge. Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 583 (Tex. 2022); Whole Woman’s Health v. Jackson, 31 F.4th 1004, 1006 (5th Cir. 2022) (instructing the district court to “dismiss all challenges to the private enforcement provisions of the statute”). ↑

16. . Jackson, 595 U.S. at 48. ↑

17. . Tex. Health & Safety Code Ann. §§ 171.208(a), (b), (e)(5), 171.210(a)(4) (West, Westlaw through 2025 Reg. and 2d Called Sess. 89th Legis.). The statute did provide that “a court may not award relief . . . if the defendant demonstrates that the defendant previously paid the full amount of statutory damages . . . in a previous action for that particular abortion performed or induced.” Id. § 171.208(c). But that only protected against new judgments after the defendant had “paid the full amount of statutory damages” from a previous judgment. Id. (emphasis added). ↑

18. . See Petitioners’ Brief at 6–10, Jackson, 595 U.S. 30 (No. 21-463) (discussing S.B. 8’s “in terrorem” effects and procedural disadvantages for defendants). ↑

19. . Jackson, 595 U.S. at 62 (Sotomayor, J., concurring in the judgment in part and dissenting in part). ↑

20. . Emma Bowman, As States Ban Abortion, the Texas Bounty Law Offers a Way to Survive Legal Challenges, NPR (July 11, 2022), https://www.npr.org/2022/07/11/1107741175/texas-abortion-bounty-law [https://perma.cc/DNZ2-HM4N]. ↑

21. . 597 U.S. 215, 232 (2022). ↑

22. . Andrew Willinger, California’s New ‘Bounty-Hunter’ Gun Law, Bloomberg L. (Aug. 15, 2022), https://news.bloomberglaw.com/us-law-week/californias-new-bounty-hunter-gun-law [https:// perma.cc/8APE-X3HP]; see infra note 102 and accompanying text. ↑

23. . Plaintiffs’ Motion for Summary Judgment and Memorandum of Law in Support at 28, Whole Woman’s Health v. Jackson, 556 F. Supp. 3d 595 (W.D. Tex. 2021) (No. 21-cv-00616), aff’d in part, rev’d in part, and remanded, Jackson, 595 U.S. 30. ↑

24. . Jackson, 556 F. Supp. 3d at 607–08, 631. ↑

25. . See U.S. Const. art. VI, cl. 2 (“This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). ↑

26. . Strauss, supra note 4, at 95. ↑

27. . Ford Motor Company Unveils the Model T, History (Jan. 31, 2025), https://www.history. com/this-day-in-history/ford-motor-company-unveils-the-model-t   [https://perma.cc/YK42-PSM9] (putting that date at October 1, 1908). ↑

28. . John Harrison, Ex Parte Young, 60 Stan. L. Rev. 989, 991 (2008). ↑

29. . Id. at 991–92. ↑

30. . Id. ↑

31. . Ex parte Young, 209 U.S. 123, 145 (1908). ↑

32. . Harrison, supra note 27, at 991. ↑

33. . Id. ↑

34. . See Young, 209 U.S. at 129 (statement of the case). Nowadays, shareholders file derivative suits in the name of the corporation. See Levine v. Smith, 591 A.2d 194, 200 (Del. 1991) (“A shareholder derivative suit is a uniquely equitable remedy in which a shareholder asserts on behalf of a corporation a claim belonging not to the shareholder, but to the corporation.”), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del. 2000). In Young, the complainants named the railroads as defendants. 209 U.S. at 129 (statement of the case). ↑

35. . Young, 209 U.S. at 130–31 (statement of the case); id. at 145 (majority opinion). ↑

36. . Id. at 129–30 (statement of the case). ↑

37. . Id. at 132–33. ↑

38. . Id. at 132. ↑

39. . Id. at 133; Harrison, supra note 27, at 993. ↑

40. . Young, 209 U.S. at 133–34 (statement of the case); Harrison, supra note 27, at 993. ↑

41. . Young, 209 U.S. at 126 (statement of the case); Harrison, supra note 27, at 993. ↑

42. . Harrison, supra note 27, at 993. ↑

43. . Young, 209 U.S. at 148 (majority opinion). ↑

44. . Id. (“We hold . . . that the provisions of the acts relating to the enforcement of the rates, either for freight or passengers, by imposing such enormous fines and possible imprisonment as a result of an unsuccessful effort to test the validity of the laws themselves, are unconstitutional on their face, without regard to the question of the insufficiency of those rates.”). ↑

45. . Id. at 146 (quoting Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 102 (1901)). ↑

46. . Id. ↑

47. . Id. at 147. ↑

48. . See id. at 149–68. ↑

49. . See id. at 150–56; see also Michael G. Collins, Jurisdictional Exceptionalism, 93 Va. L. Rev. 1829, 1850 (2007) (discussing the “treatment of real parties in interest” in the context of state sovereign immunity). ↑

50. . See Young, 209 U.S. at 150–56. ↑

51. . See, e.g., id. at 160 (“It would be an injury to complainant to harass it with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment, and to prevent it ought to be within the jurisdiction of a court of equity.”); id. at 167 (“The difference between an actual and direct interference with tangible property and the enjoining of state officers from enforcing an unconstitutional act, is not of a radical nature, and does not extend, in truth, the jurisdiction of the courts over the subject matter.”). ↑

52. . Id. at 157. ↑

53. . Id. ↑

54. . Id. at 157–58. ↑

55. . Id. at 157. ↑

56. . Id. at 159. ↑

57. . Id. at 159–60. ↑

58. . Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104–05 (1984) (quoting Young, 209 U.S. at 160). ↑

59. . Ann Althouse, How to Build a Separate Sphere: Federal Courts and State Power, 100 Harv. L. Rev. 1485, 1517 n.175 (1987). ↑

60. . Pennhurst, 465 U.S. at 105. ↑

61. . See, e.g., Young, 209 U.S. at 166 (“It cannot be to the real interest of anyone to injure or cripple the resources of the railroad companies of the country, because the prosperity of both the railroads and the country is most intimately connected.”). ↑

62. . See, e.g., id. at 167 (“The State cannot . . . impart to the official immunity from responsibility to the supreme authority of the United States.”). ↑

63. . Compare id. at 165 (“To await proceedings against the company in a state court grounded upon a disobedience of the act, and then, if necessary, obtain a review in this court by writ of error to the highest state court, would place the company in peril of large loss and its agents in great risk of fines and imprisonment if it should be finally determined that the act was valid.”), with id. (“The courts having jurisdiction, Federal or state, should at all times be open to [investors in railroads] as well as to others, for the purpose of protecting their property and their legal rights.”). ↑

64. . See id. (“This risk the company ought not to be required to take.”). ↑

65. . Id. at 166. ↑

66. . Id. ↑

67. . See, e.g., Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 386–93 (1988) (providing relevant procedural background, including explaining that “[p]laintiffs brought suit under 42 U.S.C. § 1983 against the Arlington County Chief of Police” and stating that “[w]e are not troubled by the pre-enforcement nature of this suit”). ↑

68. . 42 U.S.C. § 1983. ↑

69. . Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989). ↑

70. . See infra notes 167–71 and accompanying text; see also Will, 491 U.S. at 71 n.10 (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 . . . .”). ↑

71. . See T.M. ex rel. H.C. v. DeWine, 49 F.4th 1082, 1087–88 (6th Cir. 2022). ↑

72. . See supra Introduction. ↑

73. . Tex. Health & Safety Code Ann. §§ 171.201(1), 171.203(b), 171.204(a), 171.208(a) (West, Westlaw through 2025 Reg. and 2d Called Sess. 89th Legis.). ↑

74. . See Venkatesh A. Murugan, Bryan O’Sullivan Murphy, Carolyn Dupuis, Alan Goldstein & Young H. Kim, Role of Ultrasound in the Evaluation of First-Trimester Pregnancies in the Acute Setting, 39 Ultrasonography 178, 181 (2020). ↑

75. . See id. at 178. ↑

76. . See Amy M. Branum & Katherine A. Ahrens, Trends in Timing of Pregnancy Awareness Among US Women, 21 Maternal & Child Health J. 715, 715 (2017) (presenting results from a large study that “[a]mong all pregnancies reported, [mean] gestational age at time of pregnancy awareness was 5.5 weeks” and that “the prevalence of late pregnancy awareness,” defined as “≥7 weeks’ gestation,” “was 23 %”); see also id. at 725 (noting an inability to examine “whether [respondents] were measuring pregnancy length using time from conception, first missed period or last menstrual period”). ↑

77. . See Roni Caryn Rabin, Answers to Questions About the Texas Abortion Law, N.Y. Times (Nov. 1, 2021), https://www.nytimes.com/2021/09/01/health/texas-abortion-law-facts.html [https:// perma.cc/9AL5-Y3FS]. In light of these counting conventions, it makes no sense—and is deeply misleading—for government officials and commentators to assert, as Texas Governor Greg Abbott did, that S.B. 8 “provides at least six weeks for a person to be able to get an abortion.” Amy Sherman, Texas Gov. Greg Abbott Is Wrong About Pregnancy, Abortion Timeline, PolitiFact (Sept. 9, 2021), https:// http://www.politifact.com/factchecks/2021/sep/09/greg-abbott/texas-gov-abbott-wrong-about-pregnancy-abortion-ti/ [https://perma.cc/A2JE-X7WH]. ↑

78. . See Shannon Najmabadi, Gov. Greg Abbott Signs into Law One of Nation’s Strictest Abortion Measures, Banning Procedure as Early as Six Weeks into a Pregnancy, Tex. Trib. (May 19, 2021), https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-abortions-law/ [https://perma.cc/G 4W8-LV2D]. ↑

79. . 410 U.S. 113, 153 (1973). ↑

80. . 505 U.S. 833, 845–46 (1992). ↑

81. . Id. at 878 (opinion of O’Connor, Kennedy & Souter, JJ.). ↑

82. . 597 U.S. 215, 231 (2022). ↑

83. . See Whole Woman’s Health v. Jackson, 595 U.S. 30, 38 (2021). ↑

84. . Docket, Dobbs, 597 U.S. 215 (No. 19-1392). ↑

85. . Flouting Roe and Casey was the primary purpose behind S.B. 8. See Michael S. Schmidt, Behind the Texas Abortion Law, a Persevering Conservative Lawyer, N.Y. Times (Nov. 1, 2021), https:// http://www.nytimes.com/2021/09/12/us/politics/texas-abortion-lawyer-jonathan-mitchell.html [https://perma .cc/A4ZK-VZAV] (quoting Jonathan Mitchell, “the conceptual force behind the legislation,” as stating that “‘[t]he political branches have been too willing to cede control of constitutional interpretation to the federal judiciary,’” that “‘there are ways to counter the judiciary’s constitutional pronouncements,’” and that “‘Texas has shown that the states need not adopt a posture of learned helplessness in response to questionable or unconstitutional court rulings’”). Nevertheless, S.B. 8 gestured at complying with those decisions by purporting to provide an affirmative defense, subject to various substantive and evidentiary hurdles, for defendants who could show that plaintiffs’ claimed relief would “impose an undue burden on [a] woman or . . . group of women seeking an abortion.” Tex. Health & Safety Code Ann. § 171.209(b)(2) (West, Westlaw through 2025 Reg. and 2d Called Sess. 89th Legis.). As Justice Sotomayor explained in Jackson, there were good reasons to see that defense as “redefin[ing]” Casey’s undue-burden standard “to be a shell of what the Constitution require[d].” Jackson, 595 U.S. at 64–65 (Sotomayor, J., concurring in the judgment in part and dissenting in part). ↑

86. . See Jackson, 595 U.S. at 59 (Roberts, C.J., concurring in the judgment in part and dissenting in part) (“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.”); id. at 65 (Sotomayor, J., concurring in the judgment in part and dissenting in part) (“If enforced, [various provisions of S.B. 8 would] prevent providers from seeking effective pre-enforcement relief (in both state and federal court) while simultaneously depriving them of effective post-enforcement adjudication . . . .”). ↑

87. . See id. at 59 (Roberts, C.J., concurring in the judgment in part and dissenting in part); see also id. at 63–64, 64 n.2 (Sotomayor, J., concurring in the judgment in part and dissenting in part) (discussing still additional ways in which S.B. rendered “litigation uniquely punitive for those sued” and included “considerable departures from the norm in Texas courts and in most courts across the Nation”). ↑

88. . Id. at 36–37, 39 (majority opinion). ↑

89. . Id. at 39. ↑

90. . Id. ↑

91. . Id. (quoting Ex parte Young, 209 U.S. 123, 163 (1908)). ↑

92. . Id. at 43–44. ↑

93. . Id. at 48. ↑

94. . Id. at 45. Justice Thomas did not join this section of Justice Gorsuch’s opinion. See id. at 52 (Thomas, J., concurring in part and dissenting in part). But all the other Justices agreed that the case could proceed against the licensing officials. See id. at 51 (majority opinion) (discussing the consensus among “eight Justices”). ↑

95. . Id. at 45–46 (majority opinion). ↑

96. . See Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 573–74, 583 (Tex. 2022) (concluding “that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly” because “Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such an action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law”). ↑

97. . See Whole Woman’s Health v. Jackson, 31 F.4th 1004, 1006 (5th Cir. 2022) (instructing the district court to “dismiss all challenges to the private enforcement provisions of the statute”). ↑

98. . Jackson, 595 U.S. at 62, 72 (Sotomayor, J., concurring in the judgment in part and dissenting in part). ↑

99. . See S.B. 1309, 66th Leg., 2d Reg. Sess. (Idaho 2022) (enacted); S.B. 1503, 58th Leg., 2d Reg. Sess. (Okla. 2022) (enacted), invalidated by Okla. Call for Reprod. Just. v. State, 531 P.3d 117 (Okla. 2023). ↑

100. . See Caroline Kitchener, Lawmakers Are Racing to Mimic the Texas Abortion Law in Their Own States. They Say the Bills Will Fly Through., Wash. Post (Oct. 19, 2021), https://www.washington post.com/gender-identity/lawmakers-are-racing-to-mimic-the-texas-abortion-law-in-their-own-states-they-say-the-bills-will-fly-through/ [https://perma.cc/BTM6-QLDT]. ↑

101. . Jon D. Michaels & David L. Noll, Vigilante Federalism, 108 Cornell L. Rev. 1187, 1190–91 (2023). Another instantiation of the private-enforcement trend involves seeking to strengthen rights perceived as favored by the current Supreme Court. For instance, the Missouri Second Amendment Preservation Act, which allowed private enforcement only, Petition for Writ of Certiorari at 4, 17, Missouri v. United States, 146 S. Ct. 90 (2025) (mem.) (No. 24-796), was supposed to make the state a “Second Amendment sanctuary,” see Glenn Thrush, Inside Missouri’s ‘2nd Amendment Sanctuary’ Fight, N.Y. Times (Sept. 9, 2021), https://www.nytimes.com/2021/09/09/us/politics/missouri-gun-law. html [https://perma.cc/QX4P-BBTM]. It did so by declaring that a wide swath of “federal acts, laws, executive orders, administrative orders, rules, and regulations” would “be considered infringements on the people’s right to keep and bear arms” and by instructing state and local officials not to recognize or support them. Mo. Rev. Stat. §§ 1.410–1.485 (West, Westlaw through 2025 First Reg. and First and Second Extraordinary Sess. of the 103d Gen. Assemb.), invalidated by United States v. Missouri, 114 F.4th 980 (8th Cir. 2024) (holding that “the Act purports to invalidate federal law in violation of the Supremacy Clause”), cert denied, 146 S. Ct. 90 (2025) (mem.). ↑

102. . See generally Richard H. Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 Sup. Ct. Rev. 1. ↑

103. . Kimberly Kindy & Alice Crites, The Texas Abortion Ban Created a ‘Vigilante’ Loophole. Both Parties Are Rushing to Take Advantage., Wash. Post (Feb. 22, 2022), https://www.washington post.com/politics/2022/02/22/texas-abortion-law-vigilante-loophole-supreme-court/ [https://perma.cc/ 92QM-LL4F]; see Meredith Deliso, California Governor Signs Gun Bill Modeled After Texas Abortion Law, ABC News (July 22, 2022), https://abcnews.go.com/Politics/california-governor-signs-gun-bill-modeled-texas-abortion/story?id=87253528 [https://perma.cc/R8CY-EGBF]; see also, e.g., Nic Flosi, ‘Protecting Heartbeats Act’: Illinois Gun Bill Inspired by Texas Abortion Law, Fox 32 Chi. (Sept. 28, 2021), https://www.fox32chicago.com/news/protecting-heartbeats-act-illinois-gun-bill-inspired-by-texas-abortion-law   %5Bhttps://perma.cc/CE94-GYY9%5D   (discussing Illinois legislation that relied on similar logic). ↑

104. . See, e.g., Jennifer A. Brobst, Perilous Private Enforcement Strategies: From Posses and Citizen’s Arrest to Texas Heartbeat Statutes, 14 ConLawNOW 11, 14–20 (2022); Aziz Z. Huq, The Private Suppression of Constitutional Rights, 101 Tex. L. Rev. 1259, 1269–95 (2023). ↑

105. . See, e.g., Matthew I. Hall & Eliza K. Hall, Can State Legislatures Strip Federal Courts of Jurisdiction to Review State Laws?, 76 Fla. L. Rev. F. 50, 57–65 (2024) (arguing that “delegation of governmental standing to private individuals is permissible only when it satisfies the requirements of agency or assignment—which these laws do not”; that “vigilante enforcement is impermissible in American law because it creates a mechanism for bias, harassment, and abuse of process”; and that “principles of separation of powers also restrict delegation of state executive authority to vigilantes” (heading capitalization omitted)); Huq, supra note 103, at 1309–27 (describing “the moral economy of private suppression” and providing “several normative critiques of private suppression based on its effects upon state–individual and peer-to-peer relationships” (heading capitalization omitted)); Charles W. “Rocky” Rhodes & Howard M. Wasserman, Judicial Process and Vigilante Federalism, 108 Cornell L. Rev. Online 125, 128 (2023) (arguing in favor of “the commonality of private-enforcement schemes and the many ways rights holders can challenge the constitutional validity of the underlying restrictions”). ↑

106. . See Luke P. Norris, The Promise and Perils of Private Enforcement, 108 Va. L. Rev. 1483, 1488–91 (2022) (describing a participatory-democracy theory to help distinguish superior and inferior uses of private-enforcement mechanisms); see also Matthew A. Shapiro, Procedural Wrongdoing, 48 BYU L. Rev. 197, 275 (2022) (discussing how “many critics of [S.B. 8] who otherwise support private enforcement have . . . condemn[ed] it as an abuse of the private enforcement model that licenses ‘vigilantism’ for the improper purpose of subverting judicially recognized abortion rights and even democracy itself,” thus focusing on “the reasons for which a private enforcement regime is instituted”). ↑

107. . Whole Woman’s Health v. Jackson, 595 U.S. 30, 49 (2021). ↑

108. . Id. at 73 (Sotomayor, J., concurring in the judgment in part and dissenting in part). ↑

109. . Ann Woolhandler, State Separation of Powers and the Federal Courts, 31 Wm. & Mary Bill Rts. J. 633, 659 (2023). ↑

110. . See United States v. Texas, 566 F. Supp. 3d 605, 690 (W.D. Tex.) (granting preliminary injunction against S.B. 8’s enforcement), stay granted, No. 21-50949, 2021 WL 4786458, at *1 (5th Cir. Oct. 14, 2021), cert. before judgment dismissed, 595 U.S. 74, 75 (2021). ↑

111. . See Docket, Jackson, 595 U.S. 30 (No. 21-463); Docket, United States v. Texas, 595 U.S. 74 (No. 21-588). ↑

112. . United States v. Texas, 595 U.S. at 75. ↑

113. . Id. at 76. ↑

114. . See United States v. Texas, No. 21-50949, 2021 WL 4786458, at *1 (5th Cir. Oct. 14, 2021). ↑

115. . See United States v. Texas, No. 21-CV-796, 2022 WL 18495065, at *1 (W.D. Tex. Aug. 29, 2022). ↑

116. . For example, Texas argued that “[p]urported ‘sovereign interests’ do not give the United States standing here.” Brief for Respondents Jackson, Carlton, Thomas, Young, Benz, Paxton, and the State of Texas at 34, United States v. Texas, 595 U.S. 74 (No. 21-588). ↑

117. . See James E. Pfander, Judicial Review of Unconventional Enforcement Regimes, 102 Tex. L. Rev. 769, 779 (2024). ↑

118. . See, e.g., Clean Air Act, 42 U.S.C. § 7413 (providing for federal-government enforcement); id. § 7604(a) (providing for citizen suits); Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) (providing for dual federal-government and aggrieved-person enforcement); Fitzpatrick v. Bitzer, 427 U.S. 445, 456–57 (1976) (holding that 42 U.S.C. § 2000e(a) abrogates state sovereign immunity for Title VII suits). ↑

119. . John C.P. Goldberg & Benjamin C. Zipursky, Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8, 14 J. Tort L. 469, 490 (2021) (emphasis omitted). ↑

120. . Id. ↑

121. . See supra Section I.A. ↑

122. . See Younger v. Harris, 401 U.S. 37, 43 (1971) (stating that a “basic doctrine of equity jurisprudence” is “that courts of equity should not act . . . when the moving party has an adequate remedy at law”). ↑

123. . See Baude et al., supra note 6, at 9–10. ↑

124. . See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (“At the conclusion of a successful federal challenge to a state statute or local ordinance, a district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary.”); see also William Baude, Samuel L. Bray & Marin K. Levy, Remedies for a Constitutional Crisis, 139 Harv. L. Rev. 1747, 1759 (2026) (“Given the judiciary’s reluctance to control the President’s conduct—manifested, for example, in the authority suggesting that the president may not be enjoined—the courts may want to opt for decisions that state what the law is, without specifying the steps that need to be taken to give it effect. This is paradigmatically true of the declaratory judgment . . . .” (footnote omitted)). ↑

125. . Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1789–90 (1991); see Katherine Mims Crocker, To Keep Government Generally Within the Bounds of Law, 139 Harv. L. Rev. 1734, 1735–37 (2026) (discussing this principle in light of current threats to judicial review). ↑

126. . As an alternative, Congress could act to amend Section 1983 or otherwise make clear that states themselves are suable in pre-enforcement challenges to allegedly unconstitutional state laws. Congress should have the authority to abrogate, or withdraw, state sovereign immunity in this context because Section 1983 represents a direct exercise of Congress’s enforcement authority under Section 5 of the Fourteenth Amendment. See U.S. Const. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”); Katherine Mims Crocker, Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, 73 Fla. L. Rev. 523, 532, 537 (2021). But Congress does not do much these days. ↑

127. . Strauss, supra note 4, at 92. ↑

128. . Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting Ex parte Young, 209 U.S. 123, 160 (1908)). ↑

129. . Perez v. Ledesma, 401 U.S. 82, 107 (1971) (Brennan, J., concurring in part and dissenting in part). ↑

130. . Id. at 110 (quoting Charles Alan Wright, Handbook of the Law of Federal Courts 186 (2d ed. 1970)). ↑

131. . See Harrison, supra note 27, at 990–91. The structural conception thus accords with the view that constitutional rights impose affirmative governmental duties not to act in certain ways—an understanding that Professor Garrett West calls the “constitutional-duty framework.” E. Garrett West, Refining Constitutional Torts, 134 Yale L.J. 858, 864–65, 877 (2025). ↑

132. . See Functionalism, Black’s Law Dictionary (12th ed. 2024) (defining this “methodological approach to law” as “focusing on the effects of rules in practice . . . rather than on the precise statements of the rules themselves”). ↑

133. . Trump v. CASA, Inc., 606 U.S. 831, 837, 837 n.1 (2025). ↑

134. . See id. at 844–46. ↑

135. . Id. at 922 (Jackson, J., dissenting). ↑

136. . Id. ↑

137. . Id. at 926 n.1. ↑

138. . Id. at 895 (Sotomayor, J., dissenting). ↑

139. . Id. at 906. ↑

140. . Id. at 907. ↑

141. . Id. (quoting Richard H. Fallon, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 958–59 (5th ed. 2003)). ↑

142. . Harrison points to Sterling v. Constantin, which prohibited the Governor of Texas from reducing oil production, 287 U.S. 378, 403–04 (1932), as an early instance of this expansion. See Harrison, supra note 27, at 1009 n.86. He also observes that “[s]ome Justices, writing for themselves, apparently regarded the license of Young as extending beyond physical invasions and the institution of proceedings.” Id. Here, he cites Justice Black’s separate opinion in Colegrove v. Green, 328 U.S. 549, 568 (1946) (Black, J., dissenting), a voting-rights case, for relying on Young to sidestep state sovereign immunity. Harrison, supra note 27, at 1009 n.86. Black also invoked Young in Colegrove for the direct proposition that federal courts should “exercise their equity power” to enjoin the use of malapportioned congressional districts created by state officials. Colegrove, 328 U.S. at 574 (Black, J., dissenting). ↑

143. . Harrison, supra note 8, at 2520. ↑

144. . Id. at 2519–20. To be sure, Brown is not universally—or perhaps even commonly—regarded as a Young suit. One reason may be that the most well-known defendants, like the Board of Education of Topeka, Kansas, were local-government, not state, entities and officials. Local-government parties are not entitled to state sovereign immunity, see Lincoln Cnty. v. Luning, 133 U.S. 529, 530 (1890)—and thus would not fall within an understanding of Young as creating an exception to such immunity. But that is not a problem for Harrison, who rejects the premise that Young affected sovereign immunity in the first place. See Harrison, supra note 27, at 996. Plus, some of the defendants in Brown’s consolidated cases were indeed state parties. For their part, Gebhart v. Belton and Bulah v. Gebhart were “brought against the members of the [Delaware] State Board of Education.” Gebhart v. Belton, 91 A.2d 137, 139 (Del. 1952), aff’d sub nom. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955). What is more, Brown came down several years before Monroe v. Pape, 365 U.S. 167 (1961), which permitted plaintiffs to sue local-government officials under Section 1983 relatively broadly, and even longer before Monell v. Department of Social Services, 436 U.S. 658 (1978), which held that local-government entities were likewise suable under Section 1983. Brown, therefore, would probably not have been regarded as a Section 1983 suit, which makes Young a credible candidate for providing (or at least recognizing) Brown’s cause of action. ↑

145. . See Negative Injunction, Black’s Law Dictionary (12th ed. 2024); Affirmative Injunction, supra. ↑

146. . 440 U.S. 332 (1979). ↑

147. . See id. at 333–34. ↑

148. . Id. at 337. ↑

149. . See id. at 334; Edelman v. Jordan, 415 U.S. 651, 677–78 (1974). ↑

150. . Jonathan L. Marshfield, Rethinking Structural Injunctions in State Constitutional Litigation, 85 La. L. Rev. 491, 495 (2025) (describing “the ‘structural injunction’” as “an injunction . . . directing a political branch of government to develop and implement a remedial policy that conforms to constitutional requirements”). ↑

151. . Brown II, 349 U.S. 294, 301 (1955). ↑

152. . Id. at 300–01. ↑

153. . See 372 U.S. 58 (1963). ↑

154. . Id. at 59 (quoting H.R. Res. 1000, Gen. Assemb., Jan. Sess., 1956 R.I. Acts & Resolves 1102, 1102–03). ↑

155. . Id. at 60–62. ↑

156. . Id. at 60–61, 64. ↑

157. . Id. at 66. ↑

158. . Id. ↑

159. . Id. at 67, 72. ↑

160. . Id. at 68. ↑

161. . Id. at 69–70. ↑

162. . Id. at 70. ↑

163. . Id. at 67. ↑

164. . E. Garrett West, Constitutional Private Law, 103 Wash. U. L. Rev. 409, 471 (2025). ↑

165. . Id. at 472. ↑

166. . See supra Section II.A. ↑

167. . See, e.g., Harrison, supra note 27, at 1019 (arguing against understanding Young as allowing affirmative relief). ↑

168. . Reed v. Goertz, 598 U.S. 230, 234 (2023) (emphasis added). ↑

169. . Lewis v. Clarke, 581 U.S. 155, 162 (2017). ↑

170. . Kentucky v. Graham, 473 U.S. 159, 166 n.11 (1985); see Fed. R. Civ. P. 25(d); Fed. R. App. P. 43(c)(2). Not so in the personal-capacity context, where “should the offical [sic] die pending final resolution . . . , the plaintiff would have to pursue his action against the decedent’s estate,” Graham, 473 U.S. at 166 n.11—an unhelpful remedy given that what the plaintiff wants in the circumstances considered here is to prevent unconstitutional state action. ↑

171. . See, e.g., ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999) (holding in a Young suit that an injunction against certain state officials in their official capacities bound the holders of other state offices because it effectively provided relief against the state itself). ↑

172. . Graham, 473 U.S. at 166. ↑

173. . Whole Woman’s Health v. Jackson, 595 U.S. 30, 60–61 (2021) (Roberts, C.J., concurring in the judgment in part and dissenting in part) (citing Ex parte Young, 209 U.S. 123, 163 (1908)). ↑

174. . Id. at 61 (first citing Mitchum v. Foster, 407 U.S. 225, 243 (1972); and then citing Pulliam v. Allen, 466 U.S. 522, 525 (1984)). ↑

175. . Id. ↑

176. . Id. (quoting Young, 209 U.S. at 160). ↑

177. . Id. ↑

178. . Id. at 62 (quoting United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809)). ↑

179. . Id. ↑

180. . Id. at 68 (Sotomayor, J., concurring in the judgment in part and dissenting in part) (quoting Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 261 (2011)). ↑

181. . Id. ↑

182. . Id. at 63, 71. The dissenters would have also held the attorney general suable because of his general authority to enforce state law. See id. at 60 (Roberts, C.J., concurring in the judgment in part and dissenting in part); id. at 73 (Sotomayor, J., concurring in the judgment in part and dissenting in part). But that reasoning does not differ much from the similar holding in Young itself. See supra Section I.A. ↑

183. . Jackson, 595 U.S. at 49. ↑

184. . See Baude et al., supra note 6, at 9–10. ↑

185. . See supra Section I.A. ↑

186. . See supra Section I.A. ↑

187. . Jackson, 595 U.S. at 65 (Sotomayor, J., concurring in the judgment in part and dissenting in part). ↑

188. . See 17 U.S. (4 Wheat.) 316, 431 (1819) (“[T]hat there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, [is a] proposition[] not to be denied.”); see also Neil S. Siegel, The Collective-Action Constitution 25–26 (2024) (explaining how in McCulloch, “Marshall concludes that the US Constitution embodies a fundamental belief in ‘the overriding importance of national union as against the centrifugal forces of state parochialism’” and “interprets the Constitution in light of this purpose”). ↑

189. . See McCulloch, 17 U.S. (4 Wheat.) at 317–19 (syllabus). ↑

190. . The challengers did raise a somewhat related equal-protection claim, but it focused more on the argument that potential S.B. 8 defendants were “single[d] out” and “treat[ed] . . . differently from all other defendants in civil litigation in Texas” than on the underlying process deficiencies. Complaint for Declaratory and Injunctive Relief—Class Action at 40, Whole Woman’s Health v. Jackson, 556 F. Supp. 3d 595 (W.D. Tex.) (No. 21-CV-616), aff’d in part, rev’d in part, and remanded, 595 U.S. 30 (2021). ↑

191. . See Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945, 1945 (1997) (“[C]urrent doctrine obliges federal courts to construe statutes to save them from unconstitutionality when fairly possible. The duty to issue saving constructions underpins two central tenets of federal statutory interpretation. The first tenet is the canon of avoidance, which in its modern form directs courts to construe ambiguous acts of Congress to avoid substantial constitutional questions.” (footnote omitted)). ↑

192. . See supra Section I.A. ↑

193. . 527 U.S. 308 (1999). ↑

194. . See U.S. Const. art. III, § 2 (stating that “[t]he judicial Power shall extend to all Cases, in Law and Equity,” that fall within certain subject matters). ↑

195. . Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78. ↑

196. . Grupo Mexicano, 527 U.S. at 318 (quoting Armistead M. Dobie, Handbook of Federal Jurisdiction and Procedure 660 (1928)). ↑

197. . Id. at 322, 332. ↑

198. . Id. at 333. ↑

199. . Id. at 336 (Ginsburg, J., concurring in part and dissenting in part). ↑

200. . Id. ↑

201. . Id. (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) (“Flexibility rather than rigidity has distinguished [federal equity jurisdiction].” (alteration in original))); id. at 337 (quoting 1 Spencer W. Symons, Pomeroy’s Equity Jurisprudence § 67, at 89 (5th ed. 1941) (“[The] American system of equity is preserved and maintained . . . to render the national jurisprudence as a whole adequate to the social needs. . . . [I]t possesses an inherent capacity of expansion, so as to keep abreast of each succeeding generation and age.” (second, third, and fourth alterations in original))); see also id. at 336–37 (collecting additional citations). ↑

202. . Id. at 337, 337 n.4; see supra text accompanying notes 150–51 (discussing this role). ↑

203. . James E. Pfander & Jacob P. Wentzel, The Common Law Origins of Ex parte Young, 72 Stan. L. Rev. 1269, 1269 (2020). Compare Riley T. Keenan, Functional Federal Equity, 74 Ala. L. Rev. 879, 881 (2023) (asserting that “the Court’s pivot [toward a historical approach to construing equity jurisdiction] marks a striking departure from past practice”), with Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997, 1002–03 (2015) (“What the Court is doing is not new in the sense of a dramatic break with the immediate past. . . . Yet before the new equity cases the Court seemed unsure of how much force to give the historical distinctions between legal and equitable remedies.”). ↑

204. . Pfander & Wentzel, supra note 202, at 1269, 1271–72. ↑

205. . See Trump v. CASA, Inc., 606 U.S. 831, 842–43 (2025) (“[U]nder longstanding equity practice in England, there was no remedy ‘remotely like a national injunction.’” (quoting Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 425 (2017))); id. at 844 (“[U]niversal injunctions were not a feature of federal-court litigation until sometime in the 20th century.” (citing Bray, supra, at 448–52)). ↑

206. . Whole Woman’s Health v. Jackson, 595 U.S. 30, 44 (2021); see also, e.g., id. (describing “traditional equitable principles” limiting courts from enjoining everyone and from enjoining actual laws); id. at 45 (stating that “precedents requir[e] federal courts to abide by traditional equitable principles”); id. at 46 (plurality opinion) (agreeing that “suits seeking equitable relief against executive officials are permissible only when supported by tradition”); id. at 50 (majority opinion) (stating that “this Court has always required . . . compliance with traditional rules of equitable practice”). ↑

207. . Id. at 39 (majority opinion). ↑

208. . Id. at 41–42 (quoting id. at 68 (Sotomayor, J., concurring in the judgment in part and dissenting in part)); id. at 46 (plurality opinion). ↑

209. . Id. at 51. ↑

210. . See Formalism, Black’s Law Dictionary (12th ed. 2024) (defining this “approach to law, and esp. to constitutional and statutory interpretation,” as “holding that where an authoritative text governs, meaning is to be derived from its words . . . [and that] the standards for deciding what constitutes following the rules is objectively ascertainable”—as well as “an interpretive method whereby the judge adheres to the words rather than pursuing the text’s unexpressed purposes (purposivism) or evaluating its consequences (consequentialism)”). ↑

211. . See, e.g., Trump v. CASA, Inc., 606 U.S. 831, 899 (2025) (Sotomayor, J., dissenting) (“[T]he issuance of broad equitable relief intended to benefit parties and nonparties has deep roots in equity’s history and in this Court’s precedents.”). ↑

212. . See supra note 196 and accompanying text. ↑

213. . See Dov Fox & Mary Ziegler, The Lost History of “History and Tradition,” 98 S. Cal. L. Rev. 1, 1 (2024) (“The Supreme Court has decided one blockbuster after another by appealing to ‘history and tradition,’ deploying this trope to remake key features of the constitutional landscape: from overturning Roe to abolishing affirmative action; from narrowing the scope of public accommodations to widening the margin for church/state entanglements.”). ↑

214. . Harrison, supra note 27, at 990. ↑

215. . Id. ↑

216. . 4 John Norton Pomeroy, Jr., Pomeroy’s Equity Jurisprudence § 1360, at 2699 (3d ed. 1905) (“The use of injunctions to stay actions at law was almost coeval with the establishment of the chancery jurisdiction.”). ↑

217. . Id. § 1360, at 2699–700. ↑

218. . Id. § 1360, at 2700. ↑

219. . Harrison, supra note 27, at 997. ↑

220. . 2 Melville M. Bigelow, Story’s Commentaries on Equity Jurisprudence § 877, at 191 (13th ed., Boston, Little, Brown & Co. 1886). ↑

221. . Harrison, supra note 27, at 997–98. ↑

222. . Pomeroy, supra note 215, at § 1363, at 2706. ↑

223. . Id. ↑

224. . Id. ↑

225. . See, e.g., Whole Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021) (“Generally, States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity. To be sure, in Ex parte Young, this Court recognized a narrow exception grounded in traditional equity practice . . . .” (internal citation omitted)); Baude et al., supra note 6, at 1199 (“One account holds that Ex parte Young viewed the Constitution itself as implying a federal right of action to secure relief from threatened enforcement of an unconstitutional law. Such a conception of the right to sue as springing directly from the Fourteenth Amendment was once widely shared.”). ↑

226. . Harrison, supra note 27, at 990. This conception accords with the view that constitutional rights operate only against the backdrop of subconstitutional legal processes to nullify ultra vires exercises of governmental power. See id. at 1004, 1019–21. Professor West calls that understanding of constitutional rights the “nullification framework.” West, supra note 130, at 863–64. ↑

227. . Harrison, supra note 27, at 989. ↑

228. . Id. ↑

229. . Id. at 990. ↑

230. . See Jackson, 595 U.S. at 53 (Thomas, J., concurring in part and dissenting in part) (“The negative injunction remedy against state officials countenanced in Ex parte Young is a ‘standard tool of equity’ that federal courts have authority to entertain under their traditional equitable jurisdiction.” (quoting Harrison, supra note 27, at 990)). ↑

231. . Trump v. CASA, Inc., 606 U.S. 831, 907 (2025) (Sotomayor, J., dissenting). ↑

232. . Id. at 846 n.9 (majority opinion). The majority conflated two lines of precedent here—one authorizing antisuit injunctions based on proactive assertions of what would have been defenses at law, which did not involve tort-like behavior, and a second authorizing both damages and injunctive relief against government officials acting under unconstitutional legal mandates, which did. See Harrison, supra note 27, at 1017–18 (contrasting these lines of precedent). But the distinction does not necessarily make a difference for the majority’s point that Young can claim some historical credibility from the antisuit tradition. ↑

233. . Harrison, supra note 27, at 1018–19. ↑

234. . See id. at 1019–20. ↑

235. . See id. at 1019. ↑

236. . Pfander & Wentzel, supra note 202, at 1276–81. ↑

237. . Id. at 1275–76 (alteration in original) (quoting F.W. Maitland, Equity also the Forms of Action at Common Law 17–20 (A.H. Chaytor & W.J. Whittaker eds., 1910 reprt.) (1909)). ↑

238. . Id. at 1276–77. ↑

239. . Id. at 1279–81. ↑

240. . Id. at 1295–96. ↑

241. . Id. ↑

242. . Id. at 1296–98 (alterations in original) (emphasis omitted) (quoting James Bagg’s Case (1615) 77 Eng. Rep. 1271, 1277–78, 1281; 11 Co. Rep. 93 b, 98 a, 99 b). ↑

243. . Id. at 1299 (footnote omitted) (quoting Lord Woolf, Jeffrey Jowell & Andrew Le Sueur, De Smith’s Judicial Review 787 (6th ed. 2007)). ↑

244. . Id. (quoting Louis L. Jaffe, Judicial Control of Administrative Action 176, 328 (1965)). ↑

245. . Id. at 1300. ↑

246. . 5 U.S. (1 Cranch) 137 (1803). ↑

247. . See id. at 173–76. ↑

248. . See Pfander & Wentzel, supra note 202, at 1306–07; Marbury, 5 U.S. (1 Cranch) at 173 (“This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired, [w]hether it can issue from this court.” (emphasis added)). ↑

249. . 39 U.S. (14 Pet.) 497 (1840). ↑

250. . Pfander & Wentzel, supra note 202, at 1307–08. ↑

251. . Id. at 1308. ↑

252. . Id. at 1311 (alteration in original) (footnote omitted) (quoting James E. Pfander, Marbury, Original Jurisdiction, and the Supreme Court’s Supervisory Powers, 101 Colum. L. Rev. 1515, 1524 n.35 (2001)). ↑

253. . Id. at 1311, 1317–18. ↑

254. . Id. at 1317–18. ↑

255. . Id. at 1318. ↑

256. . Id. at 1319–20. ↑

257. . Id. at 1320 (alterations in original) (quoting Kenneth Culp Davis, Mandatory Relief from Administrative Action in the Federal Courts, 22 U. Chi. L. Rev. 585, 608 (1955)). ↑

258. . Id. at 1320–21. ↑

259. . Id. at 1324–27, 1330. ↑

260. . Id. at 1329–30; see Michael G. Collins, The Unhappy History of Federal Question Removal, 71 Iowa L. Rev. 717, 720, 720 n.19 (1986) (describing a brief period, between 1801 and 1802, when Congress previously granted general federal-question jurisdiction). ↑

261. . Pfander & Wentzel, supra note 202, at 1330 (alterations in original) (quoting Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 949 (2011)). ↑

262. . Id. ↑

263. . Id. at 1331. ↑

264. . Id.; see Allen v. Balt. & Ohio R.R. Co. (Virginia Coupon Cases), 114 U.S. 311, 315 (1885); Poindexter v. Greenhow (Virginia Coupon Cases), 114 U.S. 270, 293 (1885); Pennoyer v. McConnaughy, 140 U.S. 1, 12–17 (1891); Reagan v. Farmers’ Loan & Tr. Co., 154 U.S. 362, 400–13 (1894). ↑

265. . Pfander & Wentzel, supra note 202, at 1335–36. ↑

266. . Id. (first quoting Thomas Tapping, The Law and Practice of the High Prerogative Writ of Mandamus, as It Obtains Both in England, and in Ireland 5 (London, William Benning & Co. 1848); and then quoting Frank J. Goodnow, The Principles of the Administrative Law of the United States 396 (1905)). ↑

267. . Id. at 1343. ↑

268. . Id. at 1343–44. ↑

269. . Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 322 (1999). ↑

270. . Id. ↑

271. . Id. at 322, 328, 329. ↑

272. . Trump v. CASA, Inc., 606 U.S. 831, 907 (2025) (Sotomayor, J., dissenting). ↑

273. . Id. at 846 (majority opinion) (alteration in original) (internal citation omitted) (quoting Grupo Mexicano, 527 U.S. at 322). ↑

274. . Id. at 846–47 (quoting Grupo Mexicano, 527 U.S. at 322). ↑

275. . Id. at 847. ↑

276. . Id. at 848–49. ↑

277. . See id. ↑

278. . See id. (“As Chief Judge Sutton aptly put it, ‘[t]he domesticated animal known as a bill of peace looks nothing like the dragon of nationwide injunctions.’” (alteration in original) (quoting Arizona v. Biden, 40 F.4th 375, 397 (6th Cir. 2022) (Sutton, C.J., concurring))). ↑

279. . Bray, supra note 202, at 1010–12. ↑

280. . Id. at 1012. ↑

281. . Id. ↑

282. . Id. at 1001, 1022. ↑

283. . Id. at 1023; see id. at 1019–23. Professor Bray provides further insights into equity’s flexibility and adaptability, with an analysis of how CASA handled those concepts, in a forthcoming article. See generally Samuel L. Bray, How Equity Changes, 2026 Sup. Ct. Rev. (forthcoming), https://papers.ssrn. com/sol3/papers.cfm?abstract_id=6226118 [https://perma.cc/B2DS-GQWX]. ↑

284. . See Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 325 (1999); United States v. First Nat’l City Bank, 379 U.S. 378, 379–80, 385 (1965). ↑

285. . Grupo Mexicano, 527 U.S. at 326 (quoting First Nat’l, 379 U.S. at 383). ↑

286. . See id. at 310–13. ↑

287. . 59 U.S. (18 How.) 331, 336 (1856). ↑

288. . See id. Similar to the situation in Young, see supra note 33, the complainant in Dodge named the bank as a defendant. See 59 U.S. (18 How.) at 336. ↑

289. . Dodge, 59 U.S. (18 How.) at 336–39. ↑

290. . Id. at 339–40. ↑

291. . Id. at 341; see id. at 343 (stating that “the best argued and judicially considered case which we know upon the point” had initially “decided that courts of equity have no jurisdiction over corporations as such at the suit of a stockholder for violations of charter” but had recently “reviewed and recalled that conclusion” on rehearing). ↑

292. . Id. at 341–43. ↑

293. . Id. at 341. ↑

294. . Id. ↑

295. . Id. at 356. ↑

296. . Id. ↑

297. . Id. at 355–56. ↑

298. . Id. at 357 (quoting The Federalist No. 22 (Alexander Hamilton)). ↑

299. . Trump v. CASA, Inc., 606 U.S. 831, 907 (2025) (Sotomayor, J., dissenting). ↑

300. . Bray, supra note 202, at 1012. ↑

301. . Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318, 332 (1999). ↑

302. . See supra Section III.A.1. ↑

303. . Harrison, supra note 27, at 1002. ↑

304. . For that reason, Alabama v. Pugh—a short opinion holding in the context of a Young-style suit seeking affirmative relief that sovereign immunity bars federal courts from issuing “mandatory injunction[s]” against state entities, 438 U.S. 781, 781–82, 782 n.2 (1978)—should not control this situation. ↑

305. . Harrison, supra note 27, at 990–91. ↑

306. . Id. at 1019. ↑

307. . Id. ↑

308. . Id. ↑

309. . Id. ↑

310. . Ex parte Young, 209 U.S. 123, 193 (1908) (Harlan, J., dissenting); see id. at 149–68 (majority opinion). ↑

311. . Harrison, supra note 27, at 1019; see Trump v. CASA, Inc., 606 U.S. 831, 846 n.9 (2025). ↑

312. . Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 322 (1999); see CASA, 606 U.S. at 846. ↑

313. . Woolhandler, supra note 108, at 659 (citing Harrison, supra note 27, at 996, 1000, 1004). ↑

314. . 19 U.S. (6 Wheat.) 264, 405–12 (1821). ↑

315. . Woolhandler, supra note 108, at 659. As Woolhandler points out, see id., Professor Tara Grove provides a useful collection of such cases. See Tara Leigh Grove, When Can a State Sue the United States?, 101 Cornell L. Rev. 851, 859–68 (2016). ↑

316. . Harrison, supra note 27, at 1001. ↑

317. . Id. Professor Caleb Nelson, in particular, has argued that “many members of the Founding generation thought that a ‘Case’ or ‘Controversy’ did not exist unless both sides either voluntarily appeared or could be haled before the court.” Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1565 (2002) (quoting U.S. Const. art. III, § 2). “Traditionally, courts could not command unconsenting states to appear at the behest of an individual,” Nelson states, such that “[f]or members of the Founding generation who believed in sovereign immunity, the concept was relevant to personal jurisdiction rather than subject matter jurisdiction.” Id. The Supreme Court, however, has not consistently adopted this framing of state sovereign immunity, as Nelson acknowledges. Id. at 1566 (“[T]he Court has created a single doctrine of ‘sovereign immunity’ that reflects a strange cross between ideas of subject matter jurisdiction and ideas of personal jurisdiction.”). And the Court has allowed suits against unconsenting states in certain contexts even beyond congressional abrogation based on the purported “‘plan of the Convention,’ which is shorthand for ‘the structure of the original Constitution itself.’” PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 500 (2021) (quoting Alden v. Maine, 527 U.S. 706, 728 (1999)); see, e.g., United States v. Texas, 143 U.S. 621, 644–45 (1892) (reasoning that the federal government can sue unconsenting states because “the permanence of the Union might be endangered” otherwise); Cohens, 19 U.S. (6 Wheat.) at 406–07 (reasoning that states themselves can sue unconsenting states based on similar logic). ↑

318. . Harrison, supra note 27, at 1001. ↑

319. . Id. ↑

320. . Id. ↑

321. . See 134 U.S. 1 (1890). ↑

322. . Id. at 10–11, 15–16. ↑

323. . William Burnham, Taming the Eleventh Amendment Without Overruling Hans v. Louisiana, 40 Case W. Rsrv. L. Rev. 931, 931–33 (1990). ↑

324. . Hans, 134 U.S. at 20–21. ↑

325. . Marye v. Parsons (Virginia Coupon Cases), 114 U.S. 325, 335–36 (1885) (Bradley, J., dissenting). ↑

326. . Id. at 336. ↑

327. . Id. ↑

328. . Id. ↑

329. . Id. ↑

330. . Id. at 335. ↑

331. . Id. ↑

332. . See Ernest A. Young, Its Hour Come Round at Last? State Sovereign Immunity and the Great State Debt Crisis of the Early Twenty-First Century, 35 Harv. J.L. & Pub. Pol’y 593, 597–601 (2012). ↑

333. . See supra Section I.A. ↑

334. . Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002); see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 268 (1997) (stating that “the immunity is designed to protect” “the dignity and respect afforded a State”). The theory was that “[t]he founding generation thought it ‘neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.’” Alden v. Maine, 527 U.S. 706, 748 (1999) (quoting In re Ayers, 123 U.S. 443, 505 (1887)); see also id. at 715 (affirming that “immunity from private suits” was “central to sovereign dignity”). ↑

335. . In particular, the Administrative Procedures Act provides that

     [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance.

     5 U.S.C. § 702. ↑

336. . See 172 U.S. 516 (1899). ↑

337. . Id. at 516 (statement of the case). ↑

338. . Id. ↑

339. . Ex parte Young, 209 U.S. 123, 156 (1908). ↑

340. . Fitts, 172 U.S. at 516–17 (statement of the case). ↑

341. . Id. at 517–19, 521–22. ↑

342. . Id. at 528–29 (majority opinion). ↑

343. . Id. at 529–30. ↑

344. . See Young, 209 U.S. at 156–61; see also supra Section I.B. ↑

345. . See, e.g., Young, 209 U.S. at 175 (Harlan, J., dissenting) (“This principle [of allowing federal courts to grant the kind of relief at issue], if firmly established, would work a radical change in our governmental system. It would inaugurate a new era in the American judicial system and in the relations of the National and state governments.”). ↑

346. . Fitts, 172 U.S. at 517 (statement of the case). ↑

347. . Id. at 518–19. ↑

348. . Id. at 519. ↑

349. . Id. at 519–22. ↑

350. . Id. at 520 (quoting Alabama statute). ↑

351. . Id. at 530 (majority opinion). ↑

352. . Id. at 532. ↑

353. . Id. at 531 (quoting In re Sawyer, 124 U.S. 200, 210 (1888)). ↑

354. . Id. at 532. ↑

355. . Id. ↑

356. . See Younger v. Harris, 401 U.S. 37, 41 (1971) (recognizing a “national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances”). ↑

357. . Fitts, 172 U.S. at 532. ↑

358. . See id. at 517 (statement of the case). ↑

359. . See supra Section I.A. ↑

360. . See supra Section III.A.2. ↑

361. . Pfander & Wentzel, supra note 202, at 1275. ↑

362. . Id. ↑

363. . Id. at 1275–76. ↑

364. . Trump v. CASA, Inc., 606 U.S. 831, 841 (2025) (second alteration in original) (first quoting Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78; and then quoting Samuel L. Bray & Emily Sherwin, Ames, Chafee, and Re on Remedies 442 (4th ed. 2024)). ↑

365. . Jack Goldsmith, A Legal Mistake at the Heart of Trump v. CASA?, Exec. Functions (July 11, 2025), https://executivefunctions.substack.com/p/a-legal-mistake-at-the-heart-of-trump [https:// perma.cc/EBP2-MQTW] [hereinafter Goldsmith, A Legal Mistake]. In addition, Goldsmith reasons that the Court in CASA “also erred—or perhaps more accurately, uttered an anachronism, due to Erie Railroad Co. v. Tompkins—in saying that [the Judiciary Act of 1789] authorized equitable remedies at all.” Id. (referencing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). That is because “courts applied equitable remedies as a form of general law at the founding, and in some guise until 1938,” which “meant that equitable remedies applied in 1789 and thereafter absent any positive law authorization, and would not have been deemed in 1789 to have been ‘authorized’ by a jurisdictional statute.” Id. Goldsmith develops these arguments further in Jack Goldsmith, Essay, Interim Orders, The Presidency, and Judicial Supremacy, 139 Harv. L. Rev. 86, 114–19 (2025). ↑

366. . Goldsmith, A Legal Mistake, supra note 364; see Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78 (“[T]he circuit courts shall have original cognizance . . . of all suits of a civil nature at common law or in equity, where . . . the suit is between a citizen of the State where the suit is brought, and a citizen of another State.”). ↑

367. . Goldsmith, A Legal Mistake, supra note 364; see Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470, 470 (“[T]he circuit courts of the United States shall have original cognizance . . . of all suits of a civil nature at common law or in equity . . . arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority . . . .”). ↑

368. . Goldsmith, A Legal Mistake, supra note 364. ↑

369. . CASA, 606 U.S. at 844. ↑

370. . Goldsmith, A Legal Mistake, supra note 364. ↑

371. . Id. ↑

372. . Id. Pfander and Wentzel write that “[c]ourts in the United States relied on English common law forms to oversee the nascent administrative state well into the nineteenth century” but that “[t]hen, as the courts of equity came to perceive common law remedies as inadequate, they offered injunctive relief that drew inspiration from the common law.” Pfander & Wentzel, supra note 202, at 1276. “That trend,” they explain, “accelerated sharply in the latter half of the nineteenth century, entering the Supreme Court soon after the Civil War and spreading to the lower federal courts once Congress granted them general federal question jurisdiction in 1875.” Id. ↑

373. . Bray, supra note 202, at 1022; see supra Section III.B. In his forthcoming article, Professor Bray proposes understanding Supreme Court precedent as “treating the Judiciary Act of 1789 as a reception statute for the law of equity.” Bray, supra note 282 (manuscript at 43). That view, Bray argues, “explains why the date of the grant of subject-matter jurisdiction does not matter for the extent of equitable jurisdiction (whether 1789 as in Grupo Mexicano . . . or 1875 as in CASA),” “why the law of equity is not static” in that “reception statutes were not understood as forever freezing the common law,” and “why English Chancery practice was the default in the federal courts” but “could be set aside by federal court rules.” Id. at 44–45. Among other things, that logic helps refute a focus on the Process Act of 1792 as a relatively rigid originalist touchpoint for assessing present-day equitable practices. See Andrew S. Oldham, Adam I. Steene & John W. Tienken, The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma, 120 Nw. U. L. Rev. 1697, 1707 (2026) (arguing that “through the Process Act of 1792,” Congress “require[d] federal courts to adopt the equitable principles that subsisted in England,” such that “federal courts were to look to the jurisprudence of English Chancery practice at the time of the Founding . . . to determine whether a party was entitled to an equitable remedy”). ↑

374. . See Collins, supra note 259, at 720–22 (“The conferral of [general federal-question jurisdiction in 1875] was part of a larger substantive law and jurisdictional revolution that was an outgrowth of the Civil War and Reconstruction.”); see also Baude et al., supra note 6, at 1025 (“Congress expanded federal jurisdiction considerably in 1875, doing so in part to address state court hostility to the newly free citizens of the United States and in part for other reasons.”). ↑

375. . See Pfander & Wentzel, supra note 202, at 1330–32; see also Merrill, supra note 260, at 949 (“After Congress created federal question jurisdiction in 1875, federal courts began entertaining bills of equity that sought to enjoin allegedly unlawful administrative action. They did so on the theory that federal courts needed only a grant of jurisdiction, not a statutory cause of action, in order to exercise the powers of a court of equity in ruling on a request to enjoin agency action.” (footnote omitted)); John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 122 (1998) (“[T]he 1875 grant of jurisdiction is best interpreted as an authorization for federal equity courts to engage in lawmaking—or . . . for them . . . to continue developing [the preexisting federal equity] law in the common-law tradition. That was what federal equity courts did, and the administrative common law of judicial review grew up within that tradition.”). ↑

376. . Pfander & Wentzel, supra note 202, at 1335. ↑

377. . Id. at 1310, 1335–36. ↑

378. . Id. at 1301–02 (alteration omitted) (quoting 3 William Blackstone, Commentaries *110). ↑

379. . Id. at 1336. ↑

380. . Id. ↑

381. . Id. at 1336–37. ↑

382. . Conn. River R.R. Co. v. Cnty. Comm’rs of Franklin, 127 Mass. 50, 52 (1879). ↑

383. . Id. ↑

384. . Id. at 59. ↑

385. . Id. ↑

386. . United States v. Texas, 143 U.S. 621, 646 (1892). ↑

387. . Id. ↑

388. . 529 U.S. 765 (2000). ↑

389. . Id. at 768. ↑

390. . 31 U.S.C. § 3729(a)(1)(A). ↑

391. . Id. § 3730(b)(1). ↑

392. . Id. § 3730(a). ↑

393. . Id. § 3730(b)(2), (c)(3). ↑

394. . Id. §§ 3729(a), 3730(d)(1)–(2). ↑

395. . See, e.g., James E. Pfander, Standing to Sue: Lessons from Scotland’s Actio Popularis, 66 Duke L.J. 1493, 1503 n.41 (2017) (stating that “the medieval tradition of informer and qui tam litigation in England” “may have its roots in Roman law” and that “[i]ndeed, Blackstone describes the proceedings in question as ‘popular actions,’ implying that he perceived a connection to Roman precursors” (quoting 3 Blackstone, supra note 377, at *161)). ↑

396. . Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 770 (2000). ↑

397. . Id. ↑

398. . Id. at 787. ↑

399. . Id. ↑

400. . Id. ↑

401. . Id. (quoting Ashwander v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring)). ↑

402. . Id. The phrasing is at least ambiguous. But in the context of this case and the Court’s broader sovereign-immunity jurisprudence, plus given the quotation of Justice Brandeis’s opinion in Ashwander (which refers to situations where “‘a serious doubt of constitutionality is raised,’” 297 U.S. at 348 (Brandeis, J., concurring) (emphasis added) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)), it seems likely that the majority thought the sovereign-immunity issue was significant. ↑

403. . Stevens, 529 U.S. at 787; see Ernest A. Young, State Sovereign Immunity After the Revolution, 102 Tex. L. Rev. 697, 697, 729–30 (2024) (identifying 1996 to 2001 as the core of the “revolution” marked by “an era of dramatic expansion of states’ sovereign immunity from suits by private parties”). ↑

404. . See Hans v. Louisiana, 134 U.S. 1 (1890). ↑

405. . See U.S. Const. art. III, § 2. ↑

406. . William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1071–72 (1983). ↑

407. . Id. at 1072. ↑

408. . “What is to be done,” Randolph asked, “if in consequence of a bill of attainder, or an ex post facto law, the estate of a citizen shall be confiscated, and deposited in the treasury of a State?” 2 U.S. (2 Dall.) 419, 422 (1793) (reporting Randolph’s argument). Or “[w]hat,” Randolph continued, “if a State should adulterate or coin money below the Congressional standard, emit bills of credit, or enact unconstitutional tenders, for the purpose of extinguishing its own debts?” Id. “What if a State should impair her own contracts?” Id. “These evils, and others which might be enumerated like them,” Randolph contended, “cannot be corrected without a suit against the State.” Id. ↑

409. . See id. at 449 (opinion of Iredell, J.). Then-Professor (now-Judge) William Fletcher describes this distinction in detail. See Fletcher, supra note 405, at 1056–57. One can also read Iredell’s opinion as differentiating between federal-question suits seeking “the recovery of money” from those pursuing other “consequence[s]”—and as suggesting that the latter were the most likely kind of suits to pass constitutional muster. Chisholm, 2 U.S. (2 Dall.) at 449–50 (opinion of Iredell, J.) (“[M]y present opinion is strongly against any construction of [the Constitution], which will admit, under any circumstances, a compulsive suit against a State for the recovery of money. I think every word in the Constitution may have its full effect withouti nvolving [sic] this consequence, and that nothing but express words, or an insurmountable implication . . . would authorise the deduction of so high a power.”). ↑

410. . Chisholm, 2 U.S. (2 Dall.) at 449 (opinion of Iredell, J.). ↑

411. . See U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”). Chisholm itself involved a common-law assumpsit claim in federal court under diversity jurisdiction. See Fletcher, supra note 405, at 1055–56. ↑

412. . See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 412 (1821) (“If this writ of error be a suit in the sense of the 11th amendment, it is not a suit commenced or prosecuted ‘by a citizen of another State, or by a citizen or subject of any foreign State.’”); id. (“[A]nd we have already seen, that in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties.”); see also Fletcher, supra note 405, at 1060–63 (surveying evidence in favor of this argument). ↑

413. . Professor Nelson’s theory of sovereign immunity as a doctrine of personal jurisdiction at the Founding, for instance, would not distinguish between different fonts of subject-matter jurisdiction. See Nelson, supra note 316, at 1565 (“For members of the Founding generation who believed in sovereign immunity, the concept was relevant to personal jurisdiction rather than subject matter jurisdiction.”). And Professor Bradford Clark has argued that the Founders “assum[ed] that the Constitution neither imposed nor permitted Congress to impose affirmative obligations on states,” such that “there would never be any suits against states to enforce such obligations.” Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817, 1820 (2010). While “the Constitution imposed important negative prohibitions on states,” Clark contends, those “provisions could be enforced in suits between individuals or as federal defenses to enforcement actions brought by states.” Id. at 1819. Accordingly, he concludes, “the [Eleventh] Amendment’s ban on all suits by out-of-state citizens was a complete solution to the problem of suits by individuals against states” as permitted by Chisholm, “and thus created no anomaly.” Id. at 1820. ↑

414. . See supra Section III.B.1. ↑

415. . Virginia Coupon Cases, 114 U.S. 325, 335–36 (1885) (Bradley, J., dissenting). ↑

416. . Hans v. Louisiana, 134 U.S. 1, 20–21 (1890). ↑

417. . Virginia Coupon Cases, 114 U.S. at 335–36 (Bradley, J., dissenting). ↑

418. . See, e.g., Strauss, supra note 4, at 95 (arguing that from Jackson, “the clerks present the strongest case” for suability). ↑

419. . See, e.g., Alexandra Nickerson & Kellen Funk, When Judges Were Enjoined: Text and Tradition in the Federal Review of State Judicial Action, 111 Calif. L. Rev. 1763, 1764, 1825–28 (2023) (presenting an argument “that particularly vexing problems like bounty statutes and bail abuses can be directly restrained by prospective relief against state judges in appropriate cases”); Pfander, supra note 116, at 785, 787 (arguing that the writ of prohibition is “an attractive vehicle for a challenge to unconventional statutes like S.B. 8” and explaining that “[t]he procedure seeks to test the court’s authority to hear a particular claim and names the court and its judges as respondents to the writ”). ↑

420. . See, e.g., Woolhandler, supra note 108, at 658–59 (“If . . . the private enforcement scheme, including its attempt to circumvent federal court jurisdiction, is unconstitutional, perhaps the [Supreme] Court should treat the provisions as inoperative in determining against whom an anticipatory action can be brought. The Attorney General could then be treated as the default enforcer of state law.” (footnote omitted)). ↑

421. . See, e.g., Note, Private Attorneys General and the Defendant Class Action, 135 Harv. L. Rev. 1419, 1419, 1422–40 (2022) (contending that “a defendant class action is a viable mechanism for enjoining the enforcement of unconstitutional laws by private attorneys general” and addressing potential counterarguments arising from Article III doctrine, Federal Rule of Civil Procedure 23, and due-process concerns); Delia Parker, Note, Interpleader as a Vehicle for Challenging the Constitutionality of Private Citizen Action Statutes, 92 Fordham L. Rev. 1155, 1184, 1187–93 (2023) (contending that “interpleader relief should be afforded to individuals in private citizen action statutes, including Texas S.B. 8 and similarly structured statutes, to avoid improperly exposing individuals to multiple liability or inconsistent judgments”). ↑

422. . Shelley v. Kraemer, 334 U.S. 1, 13 (1948). ↑

423. . Id. ↑

424. . See Walker v. City of Birmingham, 388 U.S. 307, 337–38 (1967) (Douglas, J., dissenting) (“The decree of a state court is ‘state’ action in the constitutional sense as much as the action of the state police, the state prosecutor, the state legislature, or the Governor himself.” (internal citation omitted)). ↑

425. . See Shelley, 334 U.S. at 12–14; N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265 (1964); see also Strauss, supra note 4, at 92 (“A state can violate the Constitution by enforcing a judgment in a private civil action; Shelley v. Kraemer and New York Times v. Sullivan establish that.” (footnotes omitted)). ↑

426. . See 334 U.S. at 19 (“[T]he States have made available to such individuals the full coercive power of government to deny to petitioners . . . the enjoyment of [their] rights . . . .”). ↑

427. . See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991) (explaining that the test for whether conduct by a private party constitutes state action asks “whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority” and “whether the private party charged with the deprivation could be described in all fairness as a state actor”); id. at 622 (“Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, our cases have found state action when private parties make extensive use of state procedures with ‘the overt, significant assistance of state officials.’” (internal citation omitted) (quoting Tulsa Pro. Collection Servs. v. Pope, 485 U.S. 478, 486 (1988))). ↑

428. . Brief for the United States at 31, United States v. Texas, 595 U.S. 74 (2021) (No. 21-588). ↑

429. . Goldberg & Zipursky, supra note 118, at 487. As Professor West explains in a forthcoming article, Shelley v. Kraemer “depends on two distinct conclusions.” E. Garrett West, A Functional Theory of State Action, 121 Nw. U. L. Rev. (forthcoming 2026), https://papers.ssrn.com/sol3/papers.cfm?
     abstract_id=6745621 [https://perma.cc/G2C7-9WRF] (manuscript at 15). “The first is that the judicial enforcement of [a] racially restrictive covenant is a form of state action”—a conclusion West characterizes as “obviously correct.” Id. West argues that “[t]he controversial aspect of Shelley” actually comes from “the second conclusion: that the state action at issue, judicial enforcement of a racially restrictive covenant, contravened the Equal Protection Clause.” Id. For while “[t]he Supremacy Clause binds state judges to follow the Constitution, and legislation or a common-law rule restricting property ownership to a particular race would be invalid and unenforceable,” “[t]he question in Shelley was whether . . . a generally applicable legal rule of that kind could make racially restrictive covenants enforceable.” Id. (emphasis added). The present context presents the former condition (a challenge to the prospective enforcement of legislation targeting a particular constitutional protection) rather than the latter (a challenge to the implementation of a generally applicable subconstitutional regime)—and thus should not generate the sort of controversy that Shelley has. ↑

430. . See Whole Woman’s Health v. Jackson, 595 U.S. 30, 39–41 (2021). ↑

431. . Brief for the United States, supra note 427, at 31. ↑

432. . See supra Section II.A. ↑

433. . See Harrison, supra note 27, at 1014 (“Anti-suit injunctions did not have to be invented in 1908, but were a familiar equitable remedy . . . . Their cause of action, in the sense of their entitlement to affirmative relief, came from standard principles of equity.”); Pfander & Wentzel, supra note 202, at 1346–47 (arguing that “concerns with the source of the right to sue in Ex parte Young arise as a result of the Supreme Court’s distinctly modern preference for express statutory rights of action” and that “[i]n the old days, . . . a grant of jurisdiction was viewed as enough to set in motion an independent body of federal equity,” such that “federal courts began regularly ‘entertaining bills of equity that sought to enjoin allegedly unlawful administrative action’ once Congress conferred federal question jurisdiction in 1875” (quoting Merrill, supra note 260, at 949)). ↑

434. . Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). ↑

435. . Fed. R. Civ. P. 65(d)(2)(A)–(B). ↑

436. . See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402–03 (1940) (“There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government.”); Haaland v. Brackeen, 599 U.S. 255, 293 (2023) (“[T]he point of a declaratory judgment ‘is to establish a binding adjudication that enables the parties to enjoy the benefits of reliance and repose secured by res judicata.’” (quoting 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4446 (3d ed. Supp. 2022))). ↑

437. . ACLU v. Johnson, 194 F.3d 1149, 1163–64 (10th Cir. 1999); see also Am. Librs. Ass’n v. Pataki, 969 F. Supp. 160, 163 (S.D.N.Y. 1997) (very similar). ↑

438. . See Brief for the United States, supra note 427, at 37–40. ↑

439. . Prothonotary, Black’s Law Dictionary (12th ed. 2024). ↑

440. . See Finberg v. Sullivan, 634 F.2d 50, 52–53 (3d Cir.), adhered to, 658 F.2d 93 (3d Cir. 1980) (en banc). ↑

441. . Id. at 54. ↑

442. . Id. More recently, the Eleventh Circuit relied on similar reasoning in a standing analysis to allow a plaintiff to sue a court clerk to challenge Georgia’s post-judgment garnishment statute. See Strickland v. Alexander, 772 F.3d 876, 878–89, 885–86 (11th Cir. 2014). ↑

443. . See supra Section I.B. ↑

444. . See infra text accompanying notes 447–56. ↑

445. . Fed. R. Civ. P. 65(d)(2)(C). ↑

446. . See Brief for the United States, supra note 427, at 33–37. ↑

447. . United States v. Hall, 472 F.2d 261, 262–63, 266–68 (5th Cir. 1972). ↑

448. . Fed. R. Civ. P. 65(d)(2). ↑

449. . United States v. Texas, 566 F. Supp. 3d 605, 691 (W.D. Tex.), stay granted, No. 21-50949, 2021 WL 4786458, at *1 (5th Cir. Oct. 14, 2021), cert. before judgment dismissed, 595 U.S. 74, 75 (2021). ↑

450. . Id. ↑

451. . Id. ↑

452. . See Whole Woman’s Health v. Jackson, 595 U.S. 30, 39–41 (2021). ↑

453. . See id. (expressing concerns along these lines). ↑

454. . See id. at 40 (same). ↑

455. . See id. at 40–41 (same). ↑

456. . Id. at 44 (first quoting Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930); and then quoting Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021) (denial of application for injunctive relief)). ↑

457. . See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 935–36 (2018) (“The belief that federal courts ‘strike down’ unconstitutional statutes is widely held throughout our legal and political culture. But that is an imprecise and misleading description of the power of judicial review.” (footnote omitted)); id. at 936 (“The power of judicial review . . . permits a court to decline to enforce a statute in a particular case or controversy, and it permits a court to enjoin executive officials from taking steps to enforce a statute . . . .” (footnote omitted)). Mr. Mitchell’s article does not appear to contemplate suing states directly in constitutional litigation, notwithstanding that federal-plaintiff challenges regularly present in that posture. ↑

458. . As Professor Nicholas Parrillo has demonstrated, federal courts have achieved compliance on the part of state entities and officials subject to injunctions without widespread resort to contempt sanctions. Nicholas R. Parrillo, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, 131 Harv. L. Rev. 685, 702 (2018) (reporting that “[s]tate and local agencies have a norm of complying with federal court orders” and that “contempt sanctions against state and local government defendants are rare in an absolute sense, though more common and more clearly available than sanctions against federal defendants” (emphasis omitted)). When necessary, federal courts are willing to levy monetary fines against state entities (including against state officials sued in their official capacities)—and have been able to do so without running afoul of state sovereign immunity. Id. at 705–06. In theory, federal courts could also place state officials in custody for contempt, as occurred in Young itself. But in reality, “jailing of state or local officials is extremely rare.” Id. at 741. Aside from Kim Davis, a Kentucky county clerk who violated a federal-court injunction by refusing to issue licenses for same-sex marriages, Professor Parrillo “f[ound] no examples . . . in the last century.” Id. at 740–41. Davis was jailed for six days until her deputies agreed to issue the licenses. Id. ↑

459. . United States v. Texas, 566 F. Supp. 3d 605, 691 (W.D. Tex.), stay granted, No. 21-50949, 2021 WL 4786458, at *1 (5th Cir. Oct. 14, 2021), cert. before judgment dismissed, 595 U.S. 74, 75 (2021). ↑

460. . Id. (quoting a hearing transcript). Of course, to the extent a state official or would-be private-enforcement plaintiff wants to challenge the constitutional interpretation underlying a declaratory or injunctive remedy in this context in a future case, they could defy the judgment and risk the consequences. If a court with the authority to do so then repudiates that interpretation, the state could presumably obtain relief from the declaratory or injunctive remedy. See Fed. R. Civ. P. 60(b)(5)–(6) (providing that “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding” if “applying it prospectively is no longer equitable” or for “any other reason that justifies relief”). ↑

461. . See United States v. Missouri, 114 F.4th 980, 986 (8th Cir. 2024) (collecting cases in which “the United States has sued . . . to enjoin a state law’s implementation and enforcement or for other appropriate relief”), cert denied, 146 S. Ct. 90 (2025) (mem.). ↑

462. . Robert D. Cheren, Environmental Controversies “Between Two or More States,” 31 Pace Env’t L. Rev. 105, 161–63 (2014) (collecting cases in which the Court has “issue[d] injunctions binding upon states”); U.S. Const. art. III, § 2. ↑

463. . Cheren, supra note 461, at 161, 161 n.206 (collecting language specifying the scope of injunctions). ↑

464. . Id. ↑

465. . See supra Section I.B. ↑

466. . Indeed, those are procedural routes through which Shelley v. Kraemer has rendered racially restrictive covenants practically inoperable. See Barrows v. Jackson, 346 U.S. 249, 251–53, 260 (1953) (affirming a judgment sustaining a demurrer to a complaint seeking money damages against a property seller for violating a racially restrictive covenant); Gabriel J. Chin, Jim Crow’s Long Goodbye, 21 Const. Comment. 107, 127 n.106 (2004) (noting that “[t]here were a string of actions after Shelley seeking declarations that covenants were void” and pointing to Capitol Federal Savings & Loan Ass’n v. Smith, 316 P.2d 252 (Colo. 1957), and Erickson v. Sunset Memorial Park Ass’n, 108 N.W.2d 434 (Minn. 1961), as successful examples). ↑

Abstract

Decades of inadequate federal action on climate change have culminated in a near-total regulatory retreat. Meanwhile, the climate crisis continues to intensify, imposing escalating costs on individuals and communities. In the absence of a coordinated federal response, regulatory attention has turned to state action, private litigation, and private climate governance. Within this shifting landscape, homeowners insurance emerges as a promising site of climate governance, owing to the centrality of homeownership in the American political economy. This Article examines recent developments in the homeowners insurance market in response to climate change and finds that insurers simultaneously mitigate, exacerbate, and redistribute climate risk. It argues that while insurers are often characterized as presumptive agents of climate resilience, their role in climate governance is deeply influenced by policy choices that structure the incentives and constraints of insurance markets.

In theory, reducing climate risk aligns with insurers’ economic interests, as lower catastrophe losses lead to fewer claim payouts and greater profitability. Indeed, many insurers have taken steps to promote resilience by pricing premiums to reflect climate risk, offering discounts for risk-reducing activities, and lobbying for stronger building codes. These initiatives have been described as a form of de facto climate regulation and celebrated as market-based alternatives to stalled public action. Yet, this account overlooks the regulatory context in which such practices unfold, and the ways it shapes the viability of private risk regulation by insurance. As this Article shows, resilience-oriented initiatives coexist with a quieter restructuring of the homeowners insurance market that increasingly transfers climate risk from insurers to policyholders and the public. In response to escalating climate-related losses, insurers are increasingly shifting away from heavily regulated admitted markets in favor of surplus lines markets with fewer consumer protections; reorganizing as smaller firms with lean balance sheets that are fragile in the face of growing catastrophe losses; and shifting climate risk onto housing markets through liberalized rating practices that obscure underlying exposure to climate risk. Thus, even as insurers attempt to mitigate climate risk at a firm level, they exacerbate climate vulnerability at a structural level. This paradox reveals that private insurance governance does not operate independently of private regulation, but is deeply shaped by it.

Introduction

In early January of 2025^[2] wildfires blazed through Los Angeles (LA) County,^[3] propelled by the powerful Santa Ana winds^[4] and fueled by conditions of severe drought.^[5] Defying containment efforts for over a week, the fires devoured more than 50,000 acres,^[6] displaced nearly 200,000 residents,^[7] and leveled neighborhoods^[8] in Pacific Palisades and Altadena^[9] leaving behind more than $35 billion in insured property losses^[10] and a scorched land area three times the size of Manhattan. The LA fires were quickly characterized as a paragon of the catastrophic effects of climate change.^[11]

Even as the fires raged on, a second crisis was quickly brought into the frame.^[12] Senator Sheldon Whitehouse warned, “We will be watching to see whether the collapse of a trembling home insurance market accelerates after this added shock.”^[13] For thousands of Californians, an insurance crisis years in the making left them underinsured or uninsured, compromising their ability to rebuild in the wildfires’ aftermath.^[14] The LA wildfires put on stark display the interrelated nature of two climate crises—a primary crisis of escalating physical damage due to catastrophic weather, and a secondary crisis of financial vulnerability brought on by the erosion of homeowners insurance.^[15]

These dynamics stem from a broader breakdown in climate governance. Decades of inadequate federal response to climate change have culminated in a near total retreat from regulation,^[16] and attention has turned to alternative interventions, including state action, private litigation, and voluntary market mechanisms. Within this shifting landscape, homeowners insurance emerges as a promising means of climate governance. This Article examines recent developments in the homeowners insurance market in response to climate change and finds that insurance simultaneously mitigates, magnifies, and redistributes climate risk in critical ways. It argues that while insurers are often portrayed as presumptive agents of climate resilience, their role in climate governance is deeply intertwined with policy choices that structure the incentives, constraints, and risk-allocation strategies available to insurers.

The importance of insurance as a key site of private governance owes to the centrality of homeownership in the American political economy. For a majority of Americans, their home represents their most significant investment^[17] and their primary source of generational wealth transfer. If homeownership is the cornerstone of the American dream, its silent underwriter is insurance. Homeowners insurance protects policyholders against unexpected loss due to hurricanes, windstorms, and other forms of extreme weather. Without insurance, prospective homeowners cannot secure a mortgage, those with a mortgage go into foreclosure, and those who have already paid off their mortgage risk losing their most valuable investment in a single disaster.

Today, that insurance safeguard is in jeopardy. An unprecedented scale of physical damage driven by climate change^[18] has destabilized the private insurance market.^[19] Insurers are increasing premiums for policyholders, capping coverage, and withdrawing from high-risk regions.^[20] Homeowners are directly and, in many cases, severely burdened by these effects. A study examining more than forty-seven million household property insurance expenditures from 2014 to 2023 found that property insurance premiums for US homeowners increased an average of 33% each year from 2020 to 2023. The study largely attributes the increase to pass-through costs of higher reinsurance costs for primary insurers. In a 2024 Fannie Mae study, two thirds of homeowners surveyed reported that weather-related events impacted their insurance premiums, with one in four reporting a “large” impact, and one in ten expressing concern about the affordability of their premiums at the next renewal.^[21] As homeowners struggle to secure affordable insurance, they are self-insuring,^[22] downsizing, or even giving up homeownership altogether.^[23] These incidents of individual plight, in the aggregate, prompt concern about the stability of the US housing market,^[24] and about a broader economic collapse reminiscent of the 2008 subprime mortgage crisis.^[25]

These outcomes may seem counterintuitive, as reducing climate risk is presumably in insurers’ economic self-interest. One analysis projects that investing $3.35 billion in resilience measures could save insurers up to $37 billion by 2030.^[26] Accordingly, insurers might be expected to invest in promoting the very types of resilience-enhancing measures that mitigate harm as they profit from reduced payouts to policyholders. Insurers are also uniquely positioned to reduce the burdens from extreme weather by coordinating individual and collective behaviors. An established body of scholarship identifies private insurers as capable regulators of risk.^[27] They are key intermediaries in an era of climate change, financial first responders^[28] in the wake of climate disasters, and prospective partners in climate resilience and adaptation planning.^[29] Insurers’ access to massive amounts of individualized loss data, sophisticated catastrophe models,^[30] and expertise in analyzing and pricing climate risk allow them to identify vulnerabilities and to incentivize risk-mitigating behaviors. While homeowners might not know what specific insurance coverage adequately protects their properties,^[31] they can turn to insurers to guide them in managing their exposure to climate risk.^[32]

Looking at insurers’ actual practices reveals that many are, in fact, incentivizing homeowners to reduce their exposure to climate risk by, for example, installing hail-resistant shingles or hurricane windows to earn a premium discount.^[33] Insurers are also promoting systemic risk reduction by lobbying for more climate-resilient building codes and filing subrogation lawsuits against utilities providers and other third parties whose negligent activities have allegedly caused catastrophic losses. At the same time that insurers are pursuing these risk-mitigating policies for individual policyholders and communities, however, the pressures of climate change are prompting a dramatic reorganization of the homeowners insurance market at a systemic level. This has considerable implications for risk distribution and climate resilience.^[34] Insurers are increasingly exiting a heavily regulated admitted market and moving into a lightly regulated surplus market, with policyholders often unaware of their own magnified financial exposure. Some insurers are reorganizing as smaller, less capitalized entities that rely heavily on reinsurance. These arrangements allow insurers to profit in the short term even as they prompt concern over long-term solvency and the possibility of taxpayer-funded bailouts. Such trends caution against an overly optimistic reliance on insurance to govern climate risk and highlight a direct link between public regulatory context and private regulatory potential.

This Article makes three core contributions to a broader literature on private governance. First, it develops a novel account of insurance as climate governance.^[35] Second, it engages with a robust debate over insurers’ role in risk regulation through an analytical frame that highlights how public regulation activates, and limits, insurers’ incentives to regulate risk. Third, it builds on emerging “climate law” scholarship by exploring how climate change transforms private law^[36] and how private law shapes climate outcomes.^[37]

Part I begins by developing a theory of insurance as a form of private governance that is fundamentally shaped by public law. It begins with the core claims of the “insurance-as-regulation” thesis, which holds that, under certain conditions, insurers can substitute for government regulation by using pricing and incentives to influence policyholder behavior. While that interpretation often treats insurers’ regulatory function as an inherent manifestation of market logic, this Section offers a broader account that more explicitly situates private governance within the incentives and constraints set by public law and regulation.

Part II disaggregates a “climate insurance” market and examines its constituent components in relation to their regulatory context. It begins with a private insurance market which is governed by two parallel regulatory schemes: A heavily regulated regime governs the majority of the market, and a more lenient regime governs insurers who cover atypical risk profiles. It then turns to state-backed insurers of last resort which are intended for homeowners who cannot obtain coverage on the private market. Finally, it examines a federal program that provides coverage for flood risks that are widely considered uninsurable by the private market. Each of these three segments is shaped by a regulatory vision that attempts to balance market efficiency with public goals of fairness and accessibility, and inevitably governs climate risk in uncoordinated, and in some cases self-contradicting, ways.

Part III investigates the regulatory dynamics that are playing out internally and externally to the climate insurance market elaborated in Part II. It observes that insurers manage climate risk in some compelling ways that can be characterized as de facto governance, while at the same time, the climate insurance market is reorganizing in ways that effectively deregulate climate risk. It concludes that to understand the function of private insurers in climate governance requires looking beyond internal market dynamics to the public regulations that shape these dynamics.

Building on this insight, Part IV elaborates a regulatory reform agenda that would better align insurers’ climate governance function with the goal of climate resilience. This includes addressing the implications of regulatory arbitrage between parallel insurance oversight regimes, aligning climate risk assessments for insurers’ assets and liabilities, facilitating cost-shifting to risk-producing actors through subrogation, and reimagining rate regulation to account for distributional consequences.

This Article concludes that the possibilities for private insurance in mitigating climate risk must be understood within the context and ambitions of public regulation. Currently, the regulatory framework for climate insurance reflects contradictory commitments that fall short of delivering on the goals of fairness and accessibility, leaving many homeowners with inadequate and unaffordable insurance and a housing market at risk of collapse under the pressures of climate change. There is a path forward, but it requires acknowledging the interplay between public regulation and private market dynamics and pursuing reforms that align the climate insurance sector with climate resilience objectives.

I. Insurance as Climate Governance

Scientific consensus has established that human contributions to climate change exacerbate the frequency and intensity of extreme weather events like wildfires, floods, and extreme heat and cold.^[38] As national and international climate mitigation efforts stagnate,^[39] adaptation and resilience are becoming more central considerations of climate risk management and loss reduction. However, the current federal posture toward climate risk is emphatically deregulatory. Within this context, an emerging thesis advances that insurers can function as private regulators of climate risk. This Part begins in Section A by rehearsing the theory and incentives that support a regulatory function for insurers. Section B elaborates on incentives and advantages for insurers in regulating climate risk. Section C adds a new dimension to this theory by expanding the frame of analysis to consider how public regulation alternately enables and limits private risk governance.

A. Theories of Private Risk Governance

A robust literature on private environmental governance identifies and theorizes the shift from a traditional public model of regulation that governs by statutes and positive law, to a regulatory regime enacted through the voluntary activities of private actors.^[40] As public law turns away from the goals of climate mitigation and adaptation, scholars observe that private market activities may substitute as climate regulators.^[41] This scholarship has largely focused on the role of private regulation in mitigating the causes of climate change and has not dealt at great length with ways that private regulation addresses adaptation to the current and foreseeable consequences of climate change.^[42]

A separate, but related, literature theorizes the relationship between insurance and risk regulation. A traditional law and economics thesis advances that insurance coverage increases risk-taking due to moral hazard.^[43] In the home insurance context, this means that homeowners might take on excess risk in deciding where to live or how to build or maintain their property with the assurance of an insurance backstop.^[44] More recent scholarship has argued against this established intuition by advancing that, in certain contexts where insurers have an informational advantage, they can reduce moral hazard and regulate more effectively than the government. Regulation in this context refers to the use of premiums, deductibles, policy restrictions, and incentives to reduce risky behavior and, consequently, to lower overall insurer costs.^[45] By this account, several factors, including competition, policyholder demand, and a profit imperative, incentivize insurers to regulate.^[46]

An opposing account rebuts the insurance-as-regulation thesis, arguing instead that insurance has limited potential to solve for the failures of public regulation.^[47] This account highlights obstacles to insurers’ regulatory possibilities, including “collective action problems, information asymmetries, competing long-term and short-term incentives, and limitations in [insurers’] ability to manage [their] impact . . . on third parties.”^[48] The private market for insurance is underpinned by a primary goal of profitability, which relies on accurately pricing and underwriting risk rather than actively mitigating it. Therefore, insurers lack the incentives and authority to regulate.

Notably, these accounts begin with the presumption of a public-private divide with government regulation on one side, and private insurance markets on the other.^[49] This presumption takes insurers’ incentives as given, alternatively arguing that they are sufficient or insufficient to support a regulatory function. As the following Sections will demonstrate, however, private regulation is co-constituted by public regulations that alternately enable or constrain private incentives.

B. Incentives for Private Climate Governance

The thrust of an insurance-as-regulation thesis is that insurers’ information about risk is superior to that of the government, and that market competition incentivizes insurers to reduce overall risk-related losses.

Where markets are competitive, insurers will attract customers by offering lower premiums. This competition means that insurers will invest in risk reduction when that investment lowers the cost of their insurance product.^[50] However, if insurers cannot reap the value of their investment in the form of lower costs, then they will not regulate. For example, insurers might incentivize risk reduction through home retrofits by offering lower premiums. However, if a policyholder moves coverage to another insurer a year later, those benefits pass on with the policyholder.^[51]

In theory, insurers have a long-term financial incentive to mitigate climate risk. Lowering the physical costs of climate change would lower their claims payouts and allow them to maintain market viability. A study by the U.S. Chamber of Commerce, Allstate, and the U.S. Chamber of Commerce Foundation demonstrates the economic payoff of investing in resilience and preparedness. Based on modeling for twenty-five disasters, researchers found that every $1 of investment in resilience and disaster preparedness saved communities $7 in economic costs and $6 in damage.^[52] However, reaping the costs of investment requires temporal proximity between risk reduction and payoff. In the climate context, the latency of harms undermines this incentive as insurers’ efforts to reduce risk largely benefit future insurers.^[53]

One workaround to this problem of externalized benefits is that if insurers can coordinate with each other, they might supply this public good and allow all insurers to benefit. For example, state-mandated participation in a guaranty fund or a system of mandatory assessment that levies surcharges on all private insurers operating in a state might incentivize coordination between insurers. This coordination could produce an overall public good of risk reduction that benefits insurance as a sector, even if it does not create a competitive advantage. Notably, the benefits of overcoming this coordination problem have existential significance for a private homeowners insurance market.^[54]

It is also worth noting that insurers’ incentives to regulate climate risk are informed by a causal understanding of physical climate damage that is itself evolving. Historically, extreme weather events were understood to be “natural disasters,” outside the scope of human agency, which eliminated the possibility of risk reduction.^[55] A more recent causal narrative explains the physical costs of climate change as resulting both from climate change caused by greenhouse gas emissions and from failures of resilience and adaptation to reduce the costs of climate change. This causal narrative supports the case for regulation by insurance because it reframes resilience and adaptation as affirmative contributions to damage creation or damage mitigation. This causal account would identify choices that mitigate or exacerbate harms from extreme weather as opportunities to incentivize risk-reducing behaviors. Furthermore, methodological advances like climate resilience models^[56] bring into relief structural conditions of climate vulnerability,^[57] supporting interventions that alter choices by individual policyholders and that incentivize systemic regulation.

C. Private Governance as a Function of Public Regulation

The insurance-as-regulation scholarship begins with a limited characterization of private insurance that takes an existing regulatory context as given and focuses on internal firm dynamics and incentives. This is as true of arguments supporting the merits of insurance as regulation, which point to favorable market and firm-level incentives, as it is of arguments against insurance as regulation, which point to internal market conditions that prevent or limit private regulatory potential. As currently framed, the debate does not adequately contend with the regulatory context that creates market incentives for insurers or recognize its direct bearing on the viability of private risk regulation by insurance.^[58] The market- and firm-level incentives that proponents and critics identify are neither static nor do they emerge from a vacuum. In related scholarship, Tom Baker and Anja Shortland identify three principal ways in which government creates the capacity for insurers’ private governance: by setting standards, investing in risk reduction, and co-insuring losses.^[59]

As the coming Parts will illustrate, incentives for private risk regulation are shaped by such public regulatory conditions. These conditions emerge from federal regulation, including regulation of credit rating agencies that assess solvency and stability of insurance companies and give them ratings that are consumed by the public and by mortgage lenders. They include regulation establishing a federal insurance option for flood risk, the National Flood Insurance Program, which subsidizes flood coverage for homeowners in high flood risk areas and therefore modifies the scope of a competitive market for private insurance. They also include state-level insurance-specific regulations, including state-backed insurers of last resort, the sanctioning of two parallel regulatory schemes for private insurers in the form of admitted and surplus designations, regulations concerning rate increases and policy forms, and regulations concerning state guaranty funds that protect policyholders when their private admitted insurer goes insolvent. These public regulations shape the market- and firm-level incentives of private insurers and, variably, enable regulation, limit regulation, and in some cases go so far as to enable deregulation.

The coming Parts will situate and explain climate insurers’ regulatory activities within the public regulatory context that enables them.^[60] I argue that the prospects for regulation by insurance are not merely a function of internal market or firm dynamics, but, more importantly, the result of external structural and regulatory arrangements that incentivize them to mitigate, exacerbate, and distribute climate risk.^[61] Understanding the constitutive relationship between these public and private dynamics does not resolve, but recasts the current debate over insurance as regulation. It does so by clarifying possibilities for regulation by insurance, while pointing to reforms that might enable them.

II. Climate Insurance: Market Structure

This Article adopts the label “climate insurance” to refer to an array of insurance lines, including homeowners, fire, flood, and windstorm coverage that collectively govern exposure to climate-related hazards.^[62] While these are conventionally treated as distinct lines of property and casualty insurance, they are increasingly unified by a common entanglement with climate risk. Their pricing, availability, exclusions, and design shape how climate risk is distributed across households, markets, and the state. The following Sections will treat “climate insurance” as an analytical frame for understanding how insurance markets respond to and structure the risks of a climate-instable world.

Understanding the governance dynamics of the climate insurance market requires first disentangling the complex public and private arrangements that comprise it. These include a dual-track private market, structured to uphold actuarial fairness while mitigating the effects of a presumed natural monopoly and offering a release valve for sophisticated consumers via surplus lines; a residual market in the form of state-backed insurers of last resort, financed through various combinations of private sector mandates and public subsidies; and a federal program that provides flood insurance for risks widely considered uninsurable by private carriers. This architecture bears the imprint of regulatory intervention through and through, reflecting an effort to balance market efficiency with public goals of fairness and accessibility. The insurance sector does not align along a distinct public/private divide, but is more accurately characterized as a hybrid system where private market mechanisms operate under substantial regulatory coordination.

Section A outlines the structure of the private market, distinguishing between admitted and surplus lines insurers. Section B examines the role of state residual market mechanisms. Section C elaborates the federal flood insurance program that operates alongside and outside the state-based framework.

A. Private Homeowners and Catastrophe Insurance

Private homeowners insurance in the United States precedes the country’s founding, beginning in 1752 with Benjamin Franklin’s Philadelphia Contributionship for the Insurance of Houses from Loss by Fire.^[63] By the mid-19th century, demand for property insurance in the United States grew in response to industrialization and urbanization.^[64] Today, private property and casualty (P&C)^[65] insurers offer standard homeowners’ policies^[66] that include coverage for certain climate change-related perils like windstorms or fire. Homeowners insurance providers include familiar household names such as State Farm, Progressive, Berkshire Hathaway, and Allstate. Most U.S. homeowners insurers offer policies modeled on the Insurance Services Office HO-3 “special form,” ^[67] which insure the dwelling on an open perils basis, meaning all risks of direct physical loss are covered unless specifically excluded.^[68] Certain natural disasters, most notably floods and earthquakes, are excluded and require separate coverage through specialized insurers or government programs.^[69] In some high-risk regions, homeowners may also need specialized policies for windstorm^[70] or wildfire,^[71] though they are generally included in standard coverage elsewhere.

Private insurance is regulated at the state level.^[72] State insurance commissioners oversee licensing, capital requirements,^[73] and solvency.^[74] They also review and rule on insurers’ proposed rate increases and form changes, including modifications to the standardized policy language, terms, and conditions.^[75] Insurance that is administered on a regulated market, called an admitted market, is generally subject to strict licensing, oversight, solvency, and reporting requirements. Alongside the admitted market, all states maintain an excess and surplus (E&S) insurance market that provides coverage to individuals with higher risk profiles who cannot find coverage in the regulated market.^[76] These surplus lines insurers develop policies for new and innovative insurance products that are less conducive to common actuarial pricing and are thus subject to a much lower degree of regulation. Notably, E&S insurers are not limited by the same rate and form requirements or solvency requirements as admitted insurers.

B. State Insurers of Last Resort

In recent years, the cost of private homeowners insurance has grown consistently as a consequence of increased disaster risk. The National Association of Insurance Commissioners reports “steady rate increases for 25 consecutive quarters.”^[77] In a December 2024 report, the Senate Budget Committee found that insurance markets are destabilizing all across the United States, with insurance non-renewal rates increasing in most states.^[78] Coastal and wildfire-prone areas, in particular, are experiencing an insurance availability crisis,^[79] with a correlation between climate risk and nonrenewal. As a consequence of the destabilized private homeowners insurance market, state-backed residual market programs, including Fair Access to Insurance Requirements (FAIR) plans,^[80] are growing in popularity as a gap filler for those who otherwise could not obtain insurance.^[81]

Currently, thirty-four states^[82] and the District of Columbia have residual market programs offering state-backed homeowners insurance policies.^[83] The number of policyholders relying on state insurers of last resort has exploded in recent years. The insurance rating agency AM Best reports that state insurers have doubled the number of policies over the past five years.^[84] In Florida, the state-backed insurer is now the state’s largest provider. After major hurricanes hit Louisiana in 2020 and 2021, the state-run program more than tripled the number of homeowner policies issued.^[85]

These residual insurers are grouped under a shared umbrella, but their structure and arrangements vary widely.^[86] In some states, like California and New York, FAIR plans are privately administered. For example, California’s FAIR Plan was established in 1968 as a private association managed by private insurers and authorized by the California Department of Insurance.^[87] It primarily targets high-risk wildfire areas and does not offer comprehensive homeowners insurance. All licensed P&C insurers are required to participate in the FAIR plan’s profits, losses, and expenses in proportion to their market share in the state. New York maintains a similar arrangement in the form of the New York Property Insurance Underwriting Association.^[88] It is also funded by policyholder premiums and managed by private insurers.

In other states, like Florida and Louisiana, the state itself is the insurer of last resort. In 2002, the Florida legislature established Citizens Insurance as a not-for-profit, tax-exempt entity providing property insurance to those unable to secure coverage on the private market.^[89] Citizens is primarily funded by policyholder premiums. In the case of a deficit, however, Florida law requires Citizens to impose assessments on most Florida policyholders on top of their policy premiums, including those who are privately insured.^[90] Louisiana’s legislature similarly established Citizens Insurance in 2003, with a funding structure comparable to Florida’s.^[91]

These arrangements demonstrate a hybrid public-private market arrangement for insurers of last resort. Critics of state FAIR plans highlight their lack of financial sustainability and their increasing financial precarity as a consequence of growing catastrophic losses.^[92] They also identify trends suggesting that these government insurance subsidies result in regressive redistribution that favors wealthy homeowners.^[93]

C. The National Flood Insurance Program

Most standard home insurance policies and state FAIR plan policies do not cover flood damage. In 1968, the federal government established the National Flood Insurance Program (NFIP) under Federal Emergency Management Agency’s (FEMA) authority to address this market gap by issuing flood insurance policies to residents of eligible communities.^[94] The NFIP transfers some financial risk from homeowners to the federal government and aims to mitigate flood risk through floodplain management.^[95] This mitigation effort includes surveying and publishing flood maps,^[96] requiring standards for community land use and building codes as a condition of NFIP eligibility, providing a funding mechanism for rebuilding after a flood, and administering incentive schemes that improve property and community resilience.

While the NFIP is a federal program, the government only underwrites coverage, and private insurers administer the program through the Write Your Own (WYO) program. WYO allows private insurers to earn a fixed fee for every flood insurance policy they issue.^[97] Currently, forty-eight private insurance companies are authorized to write and service NFIP policies.^[98] Thus, a homeowner might purchase a standard policy from State Farm, Farmers, or any one of the eligible providers and bundle with it a flood policy that is separately guaranteed by the federal government rather than by the private insurer. The risk management structure in the WYO program reserves financial risks associated with flood insurance claims to the federal government, with no risk sharing by the participating insurance companies. Currently, the NFIP has 4.7 million active policies across approximately 27,000 participating communities,^[99] comprising nearly $1.3 trillion in coverage against flooding.^[100]

Homes and businesses located within areas designated as high flood-risk that have mortgages from government-backed lenders are required to maintain flood insurance. By design, the NFIP discounts rates below their actuarial price and maintains caps on annual rate increases. Critics argue that this subsidized pricing structure creates moral hazard because it often does not reflect the true risk of flooding and thereby encourages further development in the flood zone.^[101] The NFIP is subject to routine political attack as climate change continues to exacerbate the frequency and severity of flood events that render it increasingly insolvent.^[102]

While the NFIP is a public program, it relies on private insurers as its administrative arm, further demonstrating the hybridized public-private nature of climate insurance.

III. Climate Insurance: Regulatory Dynamics

This Part begins in Section A by identifying how climate insurance governs policyholder and third-party behaviors de facto. Section B goes on to elaborate a set of structural shifts in the climate insurance market that result in fragile arrangements which increase the climate vulnerability of unsophisticated policyholders and systematically externalize costs of climate change to the public, even as insurers profit in the short term. Section C explains these dynamics as a function of public regulation that shapes insurers’ responses to rising climate risk.

A. De Facto Climate Governance

As this Section details, insurers do indeed mitigate climate risk for policyholders. Beyond the insurer-policyholder relationship, I further identify examples of insurers influencing third-party behaviors, including those of cities and municipalities, and those of public utilities providers.

1. Influencing Policyholder Behavior

Insurers influence individual policyholders’ climate risk exposure through several mechanisms.

First, they attempt to limit moral hazard. Insurance policies define qualifying events and exclusions to disincentivize risks over which individuals have considerable agency or that are vulnerable to the logic of moral hazard. They do this by limiting coverage to damage emerging from specific causal sources. For example, Allstate’s standard homeowners insurance policy excludes loss “caused by rain, snow, sleet, sand or dust unless the wind or hail first damages the roof or walls and the wind forces rain, snow, sleet, sand or dust through the damaged roof or wall.”^[103] Excluding damage that results from already damaged roofs or walls incentivizes policyholders to invest in property upkeep rather than leave it to fall into disrepair with the assurance of indemnification.

Second, insurers motivate proactive risk-mitigating behaviors. Allstate,^[104] Farmers,^[105] and State Farm^[106] all provide premium discounts to homeowners who adopt various damage-mitigating measures. In Florida, Allstate offers windstorm mitigation discounts for homeowners who adopt features that lower the risk of damage from hurricane wind and rain, or from severe windstorms. Some states require that insurers include in their policies specific endorsements that allow homeowners to mitigate property damage through specific types of retrofits or renovations.^[107] For example, Alabama, Georgia, Mississippi, North Carolina, Oklahoma, and South Carolina participate in the Insurance Institute for Business and Home Safety (IBHS) FORTIFIED program, which provides discounts for resilience-enhancing home modifications.^[108]

Third, insurers price policy premiums to reflect property-specific climate risks. For example, in 2023, American Family Insurance partnered with First Street Foundation^[109] to obtain specific information about flood, wildfire, extreme heat, and future peril exposure for individual properties.^[110] They rely on this information to inform proposed rate increases. These rate increases can function as a market signal for areas that should no longer be built or developed.^[111] Indeed, proponents of rate deregulation argue that premiums that are not limited by state regulation would incentivize building patterns that price in climate risk.

Increasingly, states are allowing large rate increases and more lax consumer protections.^[112] Last year, in North Carolina, for example, home insurers requested a rate increase averaging 42.2% across the state and up to 99.4% in some areas.^[113] After a year of negotiations, the N.C. Department of Insurance settled with insurance companies on a 7.5% increase in 2025 and another 7.5% increase in 2026.^[114] The rate increases were explained as a reflection of large payouts due to natural disasters and increased reinsurance costs.^[115]

Fourth, insurers influence policyholder behavior by reducing coverage or withdrawing from areas with high-risk exposure. For example, American International Group (AIG) cut homeowners’ policies in nearly 200 zip codes exposed to high risks of flooding and wildfires.^[116] Farmers Group stopped issuing new policies in Florida^[117] and limited new policies in California.^[118] State Farm stopped underwriting residential property in California,^[119] and declined to renew 30,000 existing policies.^[120] Allstate also stopped underwriting new homeowners’ insurance in California.^[121] These decisions effectively shape where and how development occurs by signaling which areas are too risky to insure.^[122]

2. Governing Third Party Behavior

Insurers are also governing climate risk beyond the direct insurer-policyholder contract. This includes resilience-enhancing incentives that require community-wide coordination, local and state lobbying for climate resilience, and subrogation lawsuits against third parties.

First, insurers influence community-level decision-making by denying coverage or increasing rates in regions where communities fail to implement risk mitigation. For example, the NFIP requires that communities adopt floodplain management regulations to qualify for coverage.^[123] Insurers also offer community-level incentives that make them eligible for premium discounts. For example, the NFIP’s voluntary Community Rating System (CRS) program rewards communities^[124] that implement floodplain management practices exceeding minimum NFIP requirements. Communities earn discounts by participating in any of nineteen activities that reduce and avoid flood damage to insurable property, strengthen and support the insurance aspects of the NFIP, and foster comprehensive floodplain management.^[125] By implementing these practices, participating communities earn premium discounts up to 45% that reflect the amount of reduced flood risk.^[126] Discount-eligible activities include maintaining open space in flood-prone areas, implementing stricter building codes, and extending public outreach programs about flood risk. The NFIP further incentivizes proactive flood management through grants and resources that support flood mitigation in participating communities, including support for flood control infrastructure and buyout programs for properties in high-risk areas.

In the context of fire risk, the National Fire Protection Association (NFPA)^[127] Firewise USA^[128] recognizes communities that take specific actions toward wildfire risk reduction. Some insurers, like USAA, offer premium discounts to homeowners in Firewise communities.^[129] California’s “Safer from Wildfires” regulations require insurance companies to provide discounts to property owners in Firewise USA designated communities.^[130]

These community-level regulatory efforts conceive of the risk-bearing agent at a higher scale than the individual homeowner by incentivizing communities to mitigate risk at a level that corresponds to a scale at which infrastructure-based decisions are actually made and at which risk mitigation is most effective. Indeed, studies have identified a correlation between community participation in CRS and flood resilience, evidenced by reduced flood losses for insured properties.^[131] In research by the Environmental Defense Fund, CRS premium discounts earned for qualifying activities correlated with the percent reduction in paid claim amounts. Between 1998 and 2020, cumulative damage reductions attributable to CRS amounted to $11.4 billion, while cumulative NFIP premium discounts were $12.1 billion.^[132]

Second, insurers lobby for building codes that reduce overall risk^[133] and for actuarial pricing that would limit construction in high-risk areas.^[134] For example, State Farm has been active in discussions concerning building code reforms.^[135] In 2007, Dave Hill, the Vice President and Regulatory General Counsel at State Farm, spoke at a public hearing of the National Association of Insurance Commissioners Southeastern Zone, noting that the 2004 and 2005 hurricane seasons had resulted in massive devastation and financial burden. He expressed support for proposed legislation that creates federal incentives for the adoption of statewide building codes.^[136] Allstate similarly claims to be engaging in building code and land use planning reform.^[137] Travelers Insurance reports efforts to “promote stronger building codes” and “develop initiatives aimed at building communities that can better withstand changing weather patterns.”^[138]

Besides lobbying efforts, insurers fund and support NGOs like the NFPA^[139] and the IBHS.^[140] The IBHS maintains a research facility in South Carolina that conducts research on building resilience and disaster mitigation,^[141] including testing of building materials and techniques, and recommending industry best practices.

Third, insurers influence third-party activities through subrogation lawsuits. As the foreseeability of damages due to climate change acquires mainstream recognition,^[142] insurers are attempting to shift the costs of climate change to utility providers and municipal authorities. Through these lawsuits, they are advancing a duty to adapt to climate change.

Recent subrogation^[143] claims against utility companies, including Pacific Gas & Electric Company (PG&E), Southern California Edison (SoCal), and the Electric Reliability Council of Texas (ERCOT), adopt a legal strategy that effectively holds utilities accountable for failing to adapt to foreseeable climate risks. In this line of cases, insurers seek reimbursement for climate-related payouts, arguing that companies in high-risk industries should have taken proactive steps to mitigate wildfire impacts through fire prevention and infrastructure resilience.

In one example, California utilities provider PG&E reached an $11 billion settlement with insurance carriers related to payments made to individuals and businesses for wildfire damage in 2017 and 2018.^[144] State Farm, Allstate, Travelers, and Hartford Financial Services Group, among other insurers, received payouts based on their subrogation claims.^[145] The causal contribution alleged, but not ultimately tried, concerns PG&E’s failure to inspect and maintain relevant systems and equipment, and relevant vegetation in light of the conditions of climate change.^[146]

In another example, more than 130 insurers pursued similar subrogation claims in Texas against ERCOT for failing to winterize its power production facilities and power grid, resulting in damages during the 2021 winter storm Uri. The insurers alleged that ERCOT was grossly negligent in failing to “plan and prepare for the winter storm event,” resulting in energy outages that caused significant property damage to plaintiffs’ policyholders. The Texas Department of Insurance reported more than half a million related insurance claims, with more than 85% coming from residential property owners and homeowners.^[147] Insured losses reached $10.3 billion. Ultimately, the Texas Supreme Court granted ERCOT government immunity.^[148] A 2023 Florida statute resulted in a similar outcome,^[149] preventing subrogation cases against Florida Power and Light based on harms from Hurricane Irma.^[150]

Outside the utilities context, the case of Farmers Insurance Co. v. Metropolitan Water Reclamation District implied a duty for public authorities to adapt to the conditions of climate change. This case arose out of a flooding incident in 2013 that caused extensive property damage to Farmers Insurance policyholders. Farmers sued the Chicago Water Authority in its capacity as subrogee of insured property owners in Cook County, seeking damages for payments made to insureds for emergency intervention to deal with sewer water contamination, damage to real property, damage to personal property, lost business income and other economic damages, and evacuation costs.^[151] Farmers alleged that the city’s failure to prepare adequately for foreseeable climate impacts,^[152] such as severe rainfall, contributed to the policyholders’ extensive property damage. Farmers alleged that these risks were not only foreseeable but that they had been explicitly identified in Chicago’s Climate Action Plan^[153] years prior, suggesting the city had an obligation to adapt its infrastructure accordingly.^[154] While the case did not ultimately proceed to adjudication,^[155] it demonstrates insurers’ recognition that climate risks are exacerbated by systemic actions (and inactions) and attempts to expand the risk narrative to account for choices preceding the occurrence of a discrete catastrophe, thereby extending the temporal definition of the risk-event. Notably, this case also recast the conventional framing of climate risk exposure from an individual consideration to a systemic production by developers, city planners, and local governments.

By holding municipal authorities accountable for failing to mitigate known climate risks, litigants broaden a traditional understanding of climate risk and reframe it as the result of systemic inaction and negligence. Construed more broadly, a duty to adapt to climate change reconfigures the distributional map for costs arising from extreme weather events. Insurers face fewer hurdles than individuals would in bringing these claims as they handle claims and have more information at scale, making them better positioned to identify contributory third parties and to reassign costs.

While subrogation claims have thus far been limited to recovering costs from utilities providers, the principles they establish could conceivably extend to other sectors. For example, insurers could pursue similar subrogation claims against fossil fuel companies whose operations and emissions contribute to climate risks, arguing that such companies bear responsibility for climate impacts tied to their activities. These cases reframe causation by asserting that the failure to adapt or to mitigate known risks constitutes negligence. As climate-related claims become more prevalent, companies may be expected to invest in adaptation as a standard risk management practice​.

B. The Quiet Deregulation of Climate Insurance

Even as insurers mitigate climate risk in the ways elaborated in Section A, a quieter deregulation of the climate insurance market is simultaneously playing out with considerable consequences for policyholders and the public at large. Section 1 describes a process of insurance market dislocation from a more heavily regulated admitted market to a lightly regulated excess and surplus market under the pressures of worsening climate risk, combined with stringent rate regulation. Section 2 elaborates the shift to fragile arrangements based on smaller, heavily reinsured insurers. Section 3 identifies a liberalization of insurance ratings, particularly for small and regional insurers, that relies on methodologies which inflate insurers’ financial strength in relation to traditional ratings methods. Section 4 explains how these dynamics, together, amplify and externalize climate risk from insurers and policyholders to the public. The shifts elaborated in these Sections provoke systemic vulnerabilities in the climate insurance market and undermine long-term resilience and equitable risk-sharing.

1. Dislocating to the Surplus Market

Homeowners insurance is a subset of the P&C insurance market. The P&C market is bifurcated into admitted insurance, which is heavily regulated by the state, and E&S insurance, which is subject to comparatively few regulations. While admitted insurers comprise most of the private P&C market, surplus insurers provide a fallback option for high or emerging-risk properties that cannot find coverage in the admitted market.^[156] These surplus lines providers are typically licensed in a state of domicile and authorized to issue non-admitted policies in other states.^[157]

States regulate admitted insurers with respect to their financial solvency, including capital and surplus requirements. They regulate the substance and form of admitted insurance policies, as well as premium prices and rate increases. To make changes to form or rate, admitted insurers have to obtain approval from a state insurance commissioner.^[158] States also administer guaranty funds in the case that an insurer becomes insolvent. Admitted insurers are required to pay into these funds.

By contrast, E&S insurers are not subject to oversight over policy terms or prices, which allows them more flexibility to price premiums reflective of actual risk. They are required to maintain specified levels of capital and surplus levels set by states.^[159] With the exception of New Jersey, which is an outlier, they do not participate in state guaranty funds. In the case that an E&S insurer goes bankrupt, there is no backstop for policyholders.^[160]

The surplus lines market has expanded in recent years. As non-renewals increase in the admitted market, the E&S market picks up this reduced capacity.^[161] In 1994, E&S comprised 6% of all commercial-line premiums. By 2022, surplus lines direct premiums totaled 11%. E&S lines’ premium volume nearly doubled between 2018 and 2022, with 97% growth in the national market.^[162] This growth is attributable to shrinking admitted markets. Since 2018, the E&S share of total property lines direct premiums written has grown the most in three states facing major climate risk crises: Florida, California, and Louisiana.^[163] The four states with the highest E&S line premium volume are consistently California, Florida, Texas, and New York.^[164] Florida saw the surplus lines’ commercial coverage market rise from $4.8 billion in premiums written in 2022 to almost $7 billion in 2023.^[165] In California, the number of surplus lines carriers issuing homeowners policies increased from 102 in 2015 to 159 in 2024.^[166] Data from the California Surplus Lines Association shows that from 2023 to 2024 alone, the total number of surplus lines homeowners’ transactions increased nearly fourfold, from 63,875 to 218,699.^[167]

Surplus lines insurance presents several vulnerabilities for policyholders. Because surplus carriers operate outside the rate and form regulations that govern the admitted market, they face less oversight and can shift more risk to policyholders through broad exclusions, higher deductibles, and nonstandard terms. Unlike admitted insurers, surplus lines carriers are not backed by state guaranty funds, leaving policyholders with limited recourse in the event of insolvency.^[168] These conditions often result in underinsurance,^[169] particularly for lower-income and high-risk households, who may accept inadequate coverage out of necessity.^[170] In turn, coverage gaps increase the likelihood of unmitigated losses and delayed recovery after disasters, further intensifying community vulnerability and shifting recovery costs onto public disaster relief.

The growing E&S market is attributed to new market entrants, but also to the reorganization of traditionally admitted insurers as surplus lines providers. For example, the national insurance carrier Allstate stopped writing homeowners policies in California, while its subsidiary North Light^[171] now writes them as a surplus line provider. Some national insurers are restructuring in the wake of large losses as smaller and less capitalized subsidiary firms with a narrower scope of operation and less solvency. This restructuring shifts risk away from a parent company, which does not assume the financial obligations of its subsidiary.^[172] Large firms create separate corporate entities in high-risk markets so losses do not spread nationally and remain concentrated in the affected market. When small firms go bankrupt, the costs shift to state guaranty associations if they are admitted insurers^[173] or directly to homeowners^[174] if they are surplus insurers without the backing of guaranty associations.

2. Restructuring as Fragile Entities

Insurers are also responding to climate risk by adopting capital-light business models that rely heavily on reinsurance. While this arrangement allows them to remain active in high-risk regions without bearing the full burden of potential claims, it also introduces new forms of systemic vulnerability. The stability of homeowners insurance becomes dependent on the solvency and discretion of reinsurers, many of whom have been paring back their exposure to catastrophe risk by raising prices and increasing the levels at which coverage is triggered.^[175] This structure creates a fragile chain of financial dependency in which policyholders may be left exposed if reinsurers fail or decline to honor their obligations.

One example of this restructuring and its implications is State Farm’s transformed operations in Florida. The national insurer withdrew its operations in Florida due to losses, claiming that homes were too high-risk to insure. In its place, it helped set up a reinsurer, DaVinci, providing coverage to more than fifty insurance carriers representing the owners of 3.7 million homes.^[176] State Farm facilitated a move of its policyholders to DaVinci-backed local insurers by directing them to a specified list of providers. Shifting to one of these providers would allow them to retain multi-policy discounts and also permit State Farm agents to retain their clients if they moved to these pre-approved companies.

The result is a home insurance market reliant on thinly capitalized Florida-based companies backed by an offshore reinsurer. DaVinci is domiciled in Bermuda, which has less conservative solvency requirements than the United States, which enables it to underwrite more business with less capital. Under this arrangement, small companies can underwrite billions of dollars in property with limited financial reserves.^[177] In effect, policyholders rely on the financial health of the reinsurer. If the reinsurer becomes insolvent or refuses to pay, then the primary insurer may be unable to cover claims.

3. Relying on Liberalized Insurance Ratings

Insurance ratings are an important information source for state regulators assessing insurers’ financial health and for mortgage lenders protecting their collateral in the event of property damage. Buyers of insurance and reinsurance also rely on insurance ratings to assess whether a firm is likely to be solvent when claim payments are due. Insurers are placed on an “approved” list if they receive a rating of A- or higher by an authorized rating agency.^[178] AM Best is the oldest^[179] and is widely considered a leader among these rating agencies. It is recognized by the US Securities and Exchange Commission as a Nationally Recognized Statistical Rating Organization (NRSRO)^[180] under the Credit Rating Agency Reform Act of 2006.^[181] AM Best is the leading rating agency for national admitted insurance providers, while most small and regional insurers are rated by Demotech rather than the major rating agencies.^[182]

Notably, ratings from the different credit rating agencies are not clearly comparable due to the variation in methodologies adopted by each.^[183] An A- by one rating agency does not denote the same financial strength that an identical ranking by another agency does. Since insurers seek out and apply for ratings, this discrepancy encourages “ratings shopping” by insurers and reinsurers, resulting in market distortions.^[184]

Such discrepancies have reverberating effects. Ratings inflation may fail to communicate in full the financial risks implicated, even as they facilitate transfer of this risk from private mortgage lenders to public Government-Sponsored Enterprises (GSEs), Fannie Mae and Freddie Mac. In one study, only 10% of Demotech-rated insurers met AM Best’s GSE eligibility requirements.^[185] Nearly 67% of the Demotech-rated insurers failed to meet Freddie Mac’s eligibility requirement, while 21% failed to meet Fannie Mae’s requirement. These findings point to considerable and consequential variation in GSE eligibility requirements across rating agencies and indicate that inflated ratings facilitate market participation by insurers and the issuing and sale of mortgages that otherwise would not have been possible.

Florida’s insurance market highlights the importance of insurance rating agencies for the housing market. Demotech began rating Florida insurers in the 1990s after national carriers left the state in the wake of Hurricane Andrew, and the market became dominated by smaller homegrown insurers. The rating agency is credited with keeping Florida’s insurance market viable with the exit of major carriers and the emergence of smaller providers.^[186]

4. Externalizing Climate Risk

The quiet deregulation this Section has elaborated, arising from subtle market shifts and ratings methodologies, has the effect of systematically externalizing climate risk from the private insurance market to taxpayers and to the federal government. These dynamics emerge from a relationship between mortgage lenders, insurers, and GSEs in the U.S. housing market.

Mortgage lenders originate loans to individual home buyers, and, rather than hold them on their balance sheets, they often sell these loans to GSEs, key among them Fannie Mae and Freddie Mac. GSEs then pool these loans into mortgage-backed securities and sell them to investors. GSEs guarantee these securities and take on the credit risk of loans that conform to their requirements. Among these requirements is maintaining home insurance coverage.^[187] Fannie and Freddie require that an eligible home insurance provider meet certain financial criteria indicating its reliability and stability. They accept ratings from major credit rating agencies to assess an insurer’s financial strength. For example, Fannie Mae and Freddie Mac approve insurers with an AM Best rating of B or higher and a Demotech rating of A or higher.^[188]

This regulatory scheme is compromised by the market dynamics elaborated above. As insurers shift to small and regional models that are not rated by the traditional credit rating agencies, the oversight scheme for insurance reliability breaks down. A study by Sastry and colleagues also found that GSEs bear large unpriced exposure to climate risk.^[189] They examined data on mortgages and insurance in Florida from 2009 to 2018, and found that GSEs are accepting insurance from companies with a high risk of insolvency while failing to price for this risk. They estimate that 31% of expected GSE losses in Florida come from insurance fragility. Fragile insurers who underwrite insurance in high-risk areas experience higher rates of insolvency.^[190] Notably, as increasing climate risk weakens the climate insurance market, mortgage lenders are shifting more climate-exposed mortgages off of their books to GSEs.^[191] In one study, Amine Ouazad and Matthew Kahn found that in the aftermath of natural disasters, “lenders are more likely to approve mortgages that can be securitized, thereby transferring climate risk.”^[192]

Expansion of the E&S insurance market, combined with insurance firm restructuring in the form of undercapitalized, local providers, also contributes to the reduced effectiveness of state guaranty funds. State guaranty associations provide a form of consumer protection for insurance policy holders that transfers risk associated with insurer default to other insurers operating in the same state. If an insurer goes bankrupt, a policyholder is covered by the state guaranty association^[193] which distributes that cost across participating insurers.^[194] However, the guaranty associations are compromised in three ways. First, as the admitted market contracts, E&S insurers fill the void. They are not party to guaranty association requirements, so there are fewer insurers participating in the guaranty association, and the incentive to operate as an admitted insurer is reduced. Second, as the costs of climate change increase, they surpass the capacity of guaranty funds, preventing the possibility of immediate payout as regulatory limits cap the amount that an insurer has to pay each year, resulting in a 100+ year payout timeline. Third, costs of bankruptcy in one state spill over to other states where the same insurance company also operates, as firms levy assessments and rate increases to account for guaranty payouts.

Increasing frequency and severity of catastrophic property losses undermine state guaranty fund systems that provide a coverage backstop for homeowners if their insurer goes bankrupt.^[195] State regulations cap the amounts of annual assessments on solvent insurers, which means that a large-scale loss event may exceed a state’s guaranty capacity. One example of this occurred in 2023 when Florida and Louisiana were forced to borrow a combined $1.3 billion^[196] to pay the claims of more than a dozen insolvent insurers after Hurricane Ian.^[197] Insurers repay these costs through assessments, or surcharges, that last a decade or longer. They pass these costs on to their policyholders through premium increases and surcharges. While the claims were filed by coastal residents, the cost is subsidized by higher premiums across the state and across other policies. The debt is also subject to high interest rates, costing hundreds of millions of dollars in interest payments.^[198]

C. How Regulation Shapes Private Climate Governance

The dynamics elaborated in Sections A and B show insurers mitigating climate risk at one scale, while overall structural shifts exacerbate the vulnerability of climate insurance as a whole. These contradictory trends can be explained as a function of the contingency of private governance on the public arrangements that alternately enable or obstruct incentives to mitigate climate risk.

1. Regulation Activates Private Governance

Public regulation enables private climate governance by creating demand for insurance products, reducing coordination costs among insurers, and accounting for informational asymmetries between insurers and policyholders.

One example of public regulation enabling private climate governance is through the creation of market demand. Homes with mortgages are required to maintain active homeowners insurance,^[199] which guarantees market demand for these products. Even homeowners who are more risk-tolerant and might otherwise self-insure are required to transfer risk to insurers. This requirement creates an insurance market with national reach.

The majority of homeowners insurance remains privately supplied, even as state-sponsored FAIR plans have expanded. In 2023, private homeowners premiums amounted to $152 billion,^[200] while direct premiums underwritten for FAIR plans totaled $7.37 billion, making up less than 5% of total premiums written.^[201] The reach and administrative capacity of private insurers is evidenced by the NFIP’s reliance on a private insurance infrastructure to administer its public insurance scheme in the form of the Write Your Own program. The scale and reach of the private insurance market position it to be an effective regulator of climate risk at scale, which is particularly relevant to the systemic nature of effective climate resilience.

Public regulation also overcomes a coordination problem among private actors. In some states, like New York and California, private insurers are required to support a state insurance option of last resort. This requirement prevents insurers from selectively underwriting low-risk properties. If insurers bear financial liability for properties of all risk profiles, they may be incentivized to collaborate and to overcome coordination problems to reduce overall risk. State-backed insurers of last resort, like California and Louisiana, might achieve this same objective through their assessment policies. In Florida, for example, if the state-backed Citizens insurance faces a deficit due to large payouts, it first levies a 15% premium surcharge on its own policyholders but then levies an emergency assessment of up to 10% on statewide premiums, including most types of P&C policies, for as long as necessary to eliminate the deficit.

Furthermore, some states treat private insurers as an extension of their regulatory power, requiring them to offer premium discounts for policyholders who adopt resilience-enhancing home modifications. In Connecticut, for example, insurers are required to offer premium discounts for homeowners who install permanent storm shutters or impact-resistant glass to mitigate loss from hurricanes or severe storms.^[202] In Florida, insurers must offer discounts for installing fixtures or adopting construction techniques that reduce windstorm loss.^[203] Other states like Georgia, Louisiana, Maryland, Mississippi, New Jersey, New York, North Carolina, Oklahoma, South Carolina, and Texas offer insurance discounts or waive deductibles^[204] for specific types of coverage if homeowners adopt mitigation measures. In these examples, risk governance operates through a hybrid public-private arrangement, in which public regulatory regimes shape private insurance practices by mandating mitigation-based incentives.

Regulation also accounts for informational asymmetries between policyholders and insurers by overseeing insurance ratings. The Securities and Exchange Commission regulates rating agencies through its Office of Credit Ratings. To become NRSROs, these firms must meet transparency, governance, and methodology criteria. By providing policyholders with more reliable ratings, these regulations help to mitigate an informational asymmetry between insurance companies and policyholders to foster more efficient market transactions.

These regulations enable private governance of climate risk by insurers.

2. Regulation Undermines Private Governance

At the same time that regulation enables and, in some cases, requires climate governance by insurers in ways that improve climate resilience and shield policyholders from climate risk, it also creates and exacerbates dynamics that increase policyholder vulnerability and increase their exposure to climate risk. These dynamics include facilitating regulatory arbitrage, externalizing climate risk to taxpayers, limiting the ability to shift costs to climate-exacerbating agents, and suppressing price signals.

State regulation that creates parallel regimes—one for admitted insurers and another for E&S insurers—facilitates regulatory arbitrage. These dynamics allow admitted insurers, facing increased payout obligations, to reorganize as more lightly regulated surplus insurers. As Part II elaborated, many are in fact doing so. The expansion of the surplus lines market is attributable to new market entrants who find a market opportunity in growing demand from homeowners unable to access coverage in the admitted market, and to a migration of admitted insurers into the surplus market. In some cases, insurers withdrawing from admitted lines are the companies re-entering the market as surplus insurers.^[205] The result of maintaining parallel admitted and surplus markets is that, even as state regulators invoke consumer protection rationales to limit rate increases, they simultaneously provide insurers with an alternative, unregulated pathway through the surplus market—effectively undermining the very rate restrictions imposed on admitted carriers. Consequently, policyholders not only end up paying higher rates, they also lose the protections and backstops provided by the admitted market.

Several regulatory provisions further enable insurers to externalize climate risk to policyholders and taxpayers. For example, except for New Jersey, no other state establishes a guaranty fund for surplus insurers.^[206] This means that if a surplus insurer becomes insolvent, policyholders are left to bear the full financial burden.

Furthermore, business regulations that permit large insurers to effectively spin off smaller offshoots with limited capitalization and a geographically narrow market presence^[207] shift climate-related financial risks onto homeowners who may be left with unpaid claims and no recourse in the event of widespread insurer failures. In turn, this increases the likelihood that state and federal governments, and ultimately taxpayers, will be forced to step in as de facto insurers of last resort through disaster relief and emergency programs.

Another example of regulation undermining private insurers’ climate governance are the statutory restrictions in Florida, which prevent insurers from subrogating claims against public utilities.^[208] These restrictions impose an external limitation on insurers’ private governance function. Traditional subrogation doctrine allows insurers to shift costs to the party best positioned to prevent harm, aligning with the cheapest cost avoider principle in law and economics. By allowing insurers to recover payouts from negligent third parties, subrogation creates financial incentives for those parties—such as utilities providers—to take proactive risk mitigation measures. However, when insurers are barred from subrogating claims against third parties that contribute to climate-related damages, they are forced to internalize these costs rather than reallocate them to the entities that are better able to reduce those risks.

Current insurance rate regulation suppresses price signals based on an earlier interpretation of property and casualty insurance as a natural monopoly. While related critiques typically focus on the rate-distorting effects of NFIP and state FAIR plans, they can also be extended to state-based regulations for private, admitted insurers that limit rate increases. While unregulated insurance premiums might be priced to reflect actual risk exposure, capped rates in the admitted markets effectively subsidize policyholders’ choices to build and live in areas prone to climate-related disasters.^[209] This prevents insurers from sending a complete price signal to policyholders that might otherwise inform risk-reducing choices concerning rebuilding or relocating. More recently, insurers attribute their exit from the regulated insurance market to the inability to reflect, and therefore regulate, risk through premium pricing.

IV. Activating the Government Behind Insurers’ Climate Governance

Part III exposed a central contradiction in the governance of climate risk through insurance: While homeowners insurers increasingly function as de facto regulators by shaping land use, construction standards, and individual risk management through underwriting, pricing, and incentives, the insurance industry itself is simultaneously undergoing a deregulatory shift that undermines the efficacy of these interventions at scale. These trends emerge from the interaction between public regulatory choices and private market dynamics. In the United States, regulation of homeowners insurers has historically been animated by two public objectives: access to coverage and affordability.^[210] Under the current conditions of surging climate risk, these ends do not automatically support, and at times actively undermine, insurers’ capacity to advance climate resilience. Returning to Baker and Shortland’s framework introduced in Part I, this Part considers how centering climate resilience as a regulatory goal would reshape each of the state’s three core functions in insurance governance. Section A examines the state’s role in standard-setting to promote resilience, Section B evaluates state investment in resilience, and Section C considers the state’s role as co-insurer.

A. Standard-Setting

In Baker and Shortland’s typology, the state’s first regulatory function is to establish standards for the underlying risky activity that gives rise to loss.^[211] In the context of homeowners insurance, the underlying activity can include the siting, construction, and maintenance of a residential dwelling. These choices generate risks to the policyholder, including structural failures, fire hazards, and exposure to flood, for example. Currently, states set standards for these activities through building codes, housing ordinances, and land-use or zoning restrictions that regulate where and how homes are built.

Re-centering climate resilience as a regulatory objective requires reinterpreting these risk-generating activities to account for climate change and shifting risk exposure.^[212] This has implications for land-use decisions, building practices, household resilience, and community-level infrastructure, which all contribute to a policyholder’s exposure to climate risk.

To date, standards that directly advance climate resilience remain largely voluntary, relying on homeowners to pursue certifications or on communities to adopt resilience-focused codes. Some recent initiatives require insurers to adopt these standards in their rate-setting and policy incentives. In Colorado, House Bill 25-1182 requires insurers to account for property-specific wildfire mitigation measures, including defensible space and building hardening, when using risk models to set rates.^[213] In California, new Department of Insurance regulations require that insurers recognize and reward wildfire safety and mitigation efforts by homeowners.^[214] It is worth noting that these measures apply only to the admitted market. Recognizing the fragility of the current bifurcated market in the face of climate shocks, a more durable approach would extend resilience-oriented standards to surplus carriers who increasingly serve as the primary market in climate-exposed regions.^[215]

B. Investments in Resilience

If standard-setting provides the framework for climate-resilience through insurance governance, the second state function of investment in risk reduction supports households and communities with the means to act on those rules and reduce their exposure. Currently, regulatory strategies at the state and federal levels emphasize affordability by subsidizing coverage ex ante, through residual market programs or rate suppression. While these measures stabilize access in the short term, they leave underlying risks unaddressed.

Centering resilience as an objective of market regulation would, alternatively, direct investments toward lowering expected losses such that insurance markets remain solvent under stress. On the physical side, states might invest in resilience-enhancing infrastructure like levees, sea walls, stormwater systems, wildfire fuel management, or buyout programs. They might also tie premium discounts to voluntary community investments in infrastructure resilience. Two notable examples of this approach are the NFIP’s Community Rating System elaborated in Part II, which ties premium discounts to local investments in floodplain management, and California’s “Safer from Wildfires” initiative, which links discounts to both building-code upgrades and community-wide risk-reduction projects. Rather than stabilize insurance capacity by suppressing prices, this approach to state investment would alternately focus on lowering the losses that insurers must ultimately finance.

In addition to direct investment in physical infrastructure, state regulation can also reshape capital-market instruments to incentivize and facilitate private investment in long-term resilience. Currently, catastrophe bonds and other insurance-linked securities^[216] represent a $61.3 billion market,^[217] designed to transfer a portion of catastrophic risk from insurers to global capital markets and to protect insurer balance sheets.^[218] Regulatory design might alternately redirect these financial instruments to operate as resilience bonds, with premiums invested in flood defenses or storm-resilient infrastructure, coupling financial protection with physical risk reduction.^[219] These instruments that currently function as financial hedges might alternately facilitate public investments that lower expected losses across entire markets, creating more durable insurance capacity and a reduction in the root causes of catastrophic loss.

C. Co-Insurance

Even with stronger standards and long-term investments, private insurance markets will contract under stress, making the state’s role as co-insurer an indispensable part of a resilience-oriented regime. Currently, government-backed co-insurance is most visible in residual market programs and the NFIP. These arrangements prioritize access and affordability by providing subsidized coverage where private markets contract. Yet, their structure often undermines resilience and fails to account for resulting distributional inequities.^[220] For example, the NFIP’s subsidized rates have historically muted risk signals and entrenched development in floodplains. FAIR plans, originally conceived as temporary markets of last resort, now hold billions in exposure but often without commensurate capital reserves. The result is a system that supplies coverage but remains financially fragile, with deficits routinely shifted to taxpayers through post-event borrowing.^[221]

A resilience-oriented approach might recast the state’s role from blunt insurer of last resort into targeted co-insurer. Under current regimes, state rate regulation often suppresses actuarial price signals in order to maintain affordability, limiting insurers’ capacity to convey climate risk through premium pricing. Alternatively, regulation might preserve risk-based pricing that reflects policyholders’ climate exposure, while addressing affordability concerns on the back end through transparent, means-tested subsidies for policyholders who cannot afford actuarially sound rates.^[222] A state-level climate risk equity pool offers one model for distributing the costs of climate-related insurance and adaptation more fairly across households with varying exposure, vulnerability, and capacity to pay. Property owners might contribute on a sliding scale keyed to property value, geographic risk zone, and income. Insurers could be assessed in proportion to market share or net underwriting profits, much like existing guaranty fund obligations. The pool could subsidize premiums for high-risk, low-income households through vouchers or direct transfers, finance resilience upgrades, and establish an affordability floor for actuarially high-risk properties while preserving the informational value of market pricing.

Recasting the state’s co-insurance function along these lines would convert what are currently fragile fiscal stopgaps into mechanisms of climate resilience. In effect, the state remains the insurer of last resort but in a way that stabilizes markets and steers policyholders toward adaptation rather than perpetuating risk and socializing losses.

Conclusion

This Article has argued that insurers’ role in climate governance is deeply entangled with public regulatory context. Indeed, insurers exercise significant governance power under existing, imperfect conditions. This power can either reinforce climate vulnerability or it can be redirected, however incrementally, toward enhancing climate resilience. Climate outcomes will ultimately turn on whether existing legal and market structures direct insurers’ incentives toward risk reduction or toward the displacement of climate costs onto households, communities, and the state. Understanding insurance as a site of climate governance requires confronting governance under non-ideal conditions where regulatory choices can exacerbate or mitigate climate risk.

1. * For helpful comments and discussions, my gratitude goes to Tom Baker, Bill Buzzbee, Sara Colangelo, Ahmed Eissa, Brian Galle, Lisa Heinzerling, David Hyman, Mike Pappas, Daniel Schwarcz, Mike Vandenbergh, and participants in Columbia Law School’s Sabin Colloquium, in the University of San Diego School of Law Emerging Climate Scholars Workshop, and in the American Bar Association’s Professors’ Corner. Nathan Fletcher provided excellent research assistance. All errors are my own. ↑

2. . By the 14th, several of the fires continued to burn, but their footprint had been largely contained. Slower Winds Help L.A. Firefighters, but Anxiety Mounts Among Evacuees, N.Y. Times (May 13, 2025), https://www.nytimes.com/live/2025/01/16/us/la-wildfires-california [https://perma.cc/7XG H-7K39]. ↑

3. . Josh Gabbatiss et al., Media Reaction: The 2025 Los Angeles Wildfires and the Role of Climate Change, Carbon Brief (Jan. 13, 2025), https://www.carbonbrief.org/media-reaction-the-2025 -los-angeles-wildfires-and-the-role-of-climate-change/ [https://perma.cc/NJY2-NPW6]. ↑

4. . What Happened During the First Four Days of the Eaton, Palisades Fires in Southern California, L.A. Times (Jan. 10, 2025), https://www.latimes.com/california/live/pacific-palisades-fire-updates-los-angeles [https://perma.cc/JH78-8PSC]. ↑

5. . Greg Porter, L.A. Fires by the Numbers: Here’s How Unusual Conditions Were, S.F. Chron. (Jan. 10, 2025), https://www.sfchronicle.com/california-wildfires/article/los-angeles-fire-january-by-numbers-20025261.php [https://perma.cc/M252-58A7] (referring to region that had received just 0.16 inches of rainfall in the prior six months). ↑

6. . Jeremia Kimelman & John Osborn D’Agostino, Map: How Big Are the LA Fires? Use This Tool to Overlay Them atop Where You Live, CalMatters (Jan. 23, 2025), https://calmatters.org/enviro nment/wildfires/2025/01/la-fires-size-mapped/ [https://perma.cc/8STT-JQC3]. ↑

7. . John Gittelsohn, Michelle Ma, Hannah Elliott & Maxwell Adler, Los Angeles Evacuations Rise to 180,000 as Fires Keep Burning, Bloomberg (Jan. 9, 2025), https://www.bloomberg.com/news/ articles/2025-01-09/la-s-100-000-evacuees-flee-fires-for-shelters-second-homes [https://perma.cc/YA 9H-JD68]. ↑

8. . Michael R. Blood & Jaimie Ding, As Wildfires Linger, Focus Turns to Rebuilding Los Angeles’ Leveled Neighborhoods, KSBY (Jan. 16, 2025), https://www.ksby.com/news/california-news/ as-wildfires-linger-focus-turns-to-rebuilding-los-angeles-leveled-neighborhoods [https://perma.cc/TU R5-5Q4L]. ↑

9. . Id.; see also Kierra Frazier, As Wildfires Continue to Ravage L.A., Here’s a Look at 5 of the Worst Fires in California History, CBS News (Jan. 13, 2025), https://www.cbsnews.com/news/los-ange les-worst-california-wildfires/ [https://perma.cc/XX5P-HX7J]. ↑

10. . Press Release, CoreLogic, CoreLogic Estimates the Eaton and Palisades Fires Are Causing Devastating Initial Property Losses Estimated to Be Between $35 Billion to $45 Billion (Jan. 16, 2025), https://www.corelogic.com/press-releases/corelogic-estimates-the-eaton-and-palisades-fires-are-caus ing-devastating-initial-property-losses-estimated-to-be-between-35-billion-to-45-billion/ [https://perm a.cc/B5RX-4V4N]. Insured loss estimates later rose toward $75 million. John Gittelsohn, LA Wildfire Losses Seen as High as $164 Billion, UCLA Says, Ins. J. (Feb. 5, 2025), https://www.insurancejournal. com/news/west/2025/02/05/810760.htm [https://perma.cc/W45T-TLAV%5D. Total economic losses have been estimated to be between $250 and $275 billion. See Extreme Fire Risk in Southern California as Powerful Santa Ana Winds Return, AccuWeather (Jan. 13, 2025), https://www.accuweather.com/en/ press/extreme-fire-risk-in-southern-california-as-powerful-santa-ana-winds-return/1733516 [https://per ma.cc/PWX6-G362]. ↑

11. . David Gelles & Austyn Gaffney, ‘We’re in a New Era’: How Climate Change Is Supercharging Disasters, N.Y. Times (Jan. 16, 2025), https://www.nytimes.com/2025/01/10/climate/ california-fires-climate-change-disasters.html [https://perma.cc/6BXZ-WCVX]; Gavin Madakumbura et al., Study: Climate Change a Factor in Unprecedented LA Fires, UCLA (Jan. 13, 2025), https://susta inablela.ucla.edu/2025lawildfires [https://perma.cc/22NW-G5SQ]. ↑

12. . See, e.g., Parinitha R. Sastry & Ishita Sen, Opinion, We Have to Stop Underwriting People Who Move to Climate Danger Zones, N.Y. Times (Jan. 16, 2025), https://www.nytimes.com/2025/01 /16/opinion/la-fires-climate-home-insurance.html [https://perma.cc/YC25-6R3H]. ↑

13. . Sheldon Whitehouse (@SenWhitehouse), X (Jan. 9, 2025), https://x.com/SenWhitehouse/ status/1877374404822213064 [https://perma.cc/3TA8-W2FU]. ↑

14. . In recent years, major insurers restricted or canceled coverage in California, citing mounting losses from severe weather disasters and an inability to adequately increase rates due to state regulations. See Tom Jacobs & Jason Woleben, State Farm Pullback Intensifies Spotlight on California’s Rate-Approval Process, S&P Glob.: Mkt. Intel. (June 20, 2023), https://www.spglobal.com/market-intelli gence/en/news-insights/latest-news-headlines/state-farm-pullback-intensifies-spotlight-on-california-s-rate-approval-process-76110864 [https://perma.cc/66EN-EY6G]. Less than a year prior to the catastrophic wildfires, State Farm Insurance had announced that it would not be renewing 30,000 existing policies, and a year before that it had stopped issuing new policies in the state. In the wake of the California fires, the state’s insurance commissioner issued a moratorium preventing insurance companies from canceling policies or issuing nonrenewals in the affected areas. See Jack Healy, State Farm Offers Homeowners in Fire Areas a Chance to Renew Insurance Policies, N.Y. Times (Jan. 16, 2025), https://www.nytimes.com/2025/01/16/us/state-farm-insurance-renewals-la-fires.html [https:// perma.cc/W7LF-T4QA]. ↑

15. . See Christopher Flavelle, Mira Rojanasakul & Paul Ratje, Insurers Are Deserting Homeowners as Climate Shocks Worsen, N.Y. Times, (Dec. 18, 2024), https://www.nytimes.com/ interactive/2024/12/18/climate/insurance-non-renewal-climate-crisis.html   [https://perma.cc/4EYX-Y5C5] (elaborating on the relationship between increased costs of climate change and insurance non-renewal across the United States). ↑

16. . Within six months of taking office, President Donald Trump declared a “National Energy Emergency” aimed at intensifying fossil fuel extraction and production, formally withdrew the United States from the Paris Agreement under the United Nations Framework Convention on Climate Change, and dismantled key environmental regulations designed to reduce greenhouse gas emissions and promote renewable energy sources. Exec. Order No. 14156, 90 Fed. Reg. 8433 (Jan. 20, 2025); Exec. Order No. 14162, 90 Fed. Reg. 8455 (Jan. 20, 2025); Exec. Order No. 14148, 90 Fed. Reg. 8237 (Jan. 20, 2025) (citing “climate extremism” as a source of inflation and the overburdening of business with regulation). ↑

17. . Rakesh Kochhar & Mohamad Moslimani, Pew Rsch. Ctr., Wealth Surged in the Pandemic, but Debt Endures for Poorer Black and Hispanic Families 23 (2023), https://www. pewresearch.org/2023/12/04/the-assets-households-own-and-the-debts-they-carry/ [https://perma.cc/ W99R-469E] (“An owned home is typically the most valuable asset for U.S. homeowners. Black and Hispanic homeowners typically derive a higher share of their wealth from owned homes than White and Asian households.”). ↑

18. . One prediction estimates $118 billion in weather-related losses for homeowners by 2030. Kelly Cusick, Michelle Canaan, Namrata Sharma, Donna Szatkowski-Zych & Lauren Pesa, Climate Change and Home Insurance: US Insurers Have Been Hit Hard by Severe Weather-Related Claims, Deloitte Ctr. for Fin. Servs. (May 29, 2024), https://www2.deloitte.com/us/en/insights/industry/ financial-services/financial-services-industry-predictions/2024/climate-change-home-insurance-resi liency.html [https://perma.cc/XKN9-355C]. ↑

19. . Renée Cho, With Climate Impacts Growing, Insurance Companies Face Big Challenges, Colum. Climate Sch. (Nov. 3, 2022), https://news.climate.columbia.edu/2022/11/03/with-climate-im pacts-growing-insurance-companies-face-big-challenges/ [https://perma.cc/266R-2LYT]. Along with the increasing frequency and intensity of weather events, high-risk areas are also growing in population, property values are increasing, and repairs and replacement costs are rising due to inflation, supply chain issues, and labor costs. Fed. Ins. Off., U.S. Dep’t of the Treasury, Annual Report on the Insurance Industry 41 (2023), https://home.treasury.gov/system/files/311/FIO%20Annual%20Report%202023%209292023.pdf [https://perma.cc/6M8J-Q3JL] (attributing a 10% increase in insurance premiums in 2022 to catastrophe risks, higher home sales, rising home values, and material and labor costs increases due to inflation). ↑

20. . Benjamin J. Keys & Philip Mulder, Property Insurance and Disaster Risk: New Evidence from Mortgage Escrow Data (Nat’l Bureau of Econ. Rsch., Working Paper No. 32579, 2025), http:// http://www.nber.org/papers/w32579 [https://perma.cc/NZC6-A654]. ↑

21. . Kevin Tillmann & Saif Amin, Consumers Worried About Impact of Extreme Weather on Homes and Insurance Premiums, Fannie Mae (Apr. 3, 2024), [https://perma.cc/U4CD-EN25] (only available by archived link). ↑

22. . See Chris Taylor, The Risky Economics of ‘Going Bare’ Without Homeowners Insurance, Ins. J. (Apr. 8, 2024), https://www.insurancejournal.com/news/national/2024/04/08/768381.htm [https: //perma.cc/9AHF-A3MY]. While a mortgaged home is required to maintain insurance coverage, approximately 40% of homes are not mortgaged. Why We Ask Questions About . . . Housing Costs for Owners, U.S. Census Bureau, https://www.census.gov/acs/www/about/why-we-ask-each-question/ housing/ [https://perma.cc/3D42-7WT8]. ↑

23. . Thanh Truong & Jordan Gartner, Woman Says Soaring Insurance Prices Are Forcing Her to Sell Her Home of Nearly 30 Years, WLBT3 (June 19, 2024), https://www.wlbt.com/2024/06/20/woman-says-soaring-insurance-prices-are-forcing-her-sell-her-home-nearly-30-years/ [https://perma.cc/7ANT-7GYL]. ↑

24. . Jesse D. Gourevitch et al., Unpriced Climate Risk and the Potential Consequences of Overvaluation in US Housing Markets, 13 Nature Climate Change 250 (2023); Jeff Masters, Bubble Trouble: Climate Change Is Creating a Huge and Growing U.S. Real Estate Bubble, Yale Climate Connections (Apr. 10, 2023), https://yaleclimateconnections.org/2023/04/bubble-trouble-climate-ch ange-is-creating-a-huge-and-growing-u-s-real-estate-bubble/ [https://perma.cc/CM8T-E9WX]; Howard Kunreuther, Susan Wachter, Carolyn Kousky & Michael LaCour-Little, Flood Risk and the U.S. Housing Market 1 (Feb. 1, 2019) (unpublished manuscript), https://ssrn.com/abstract=3426638 [https:// perma.cc/2STA-AG8J] (stating that “flooding events adversely affect properties outside of designated flood risk areas and have negative effects on their local economy”). ↑

25. . Christopher Flavelle, Climate Risk in the Housing Market Has Echoes of Subprime Crisis, Study Finds, N.Y. Times (Sept. 30, 2019), https://www.nytimes.com/2019/09/27/climate/mortgage-climate-risk.html [https://perma.cc/6XSV-246H] (noting that current dynamics “echo the subprime lending crisis of 2008, when unexpected drops in home values cascaded through the economy and triggered recession”). In his opening statement at a 2024 Senate Budget Committee Hearing, Senator Sheldon Whitehouse set out an alarming chain of events: “Climate risk makes things uninsurable. No insurance makes things unmortgageable. No mortgages crashes the property markets. Crashed property markets trash the economy.” Riskier Business: How Climate Change Is Already Challenging Insurance Markets: Hearing Before the S. Comm. on the Budget, 118th Cong. 2 (2024) (statement of Sen. Sheldon Whitehouse, Chairman, S. Comm. on the Budget), https://www.budget.senate.gov/imo/media/doc/060524senatorwhitehouseopeningstatement.pdf [https://perma.cc/3S3S-6B2C]. ↑

26. . Cusick et al., supra note 17. ↑

27. . See infra note 44. ↑

28. . Insurance Information Institute (@iiiorg), X (Jan. 9, 2025), https://x.com/iiiorg/status/187 7423878168801444 [https://perma.cc/R37N-JZDC]. ↑

29. . See, e.g., Cusick et al., supra note 17 (elaborating steps that insurance can adopt to improve resilience and limit their losses, such as promoting loss prevention and mitigation to help maintain market viability in high-risk regions). In one specific example, the report notes that insurance can guide and incentivize “the 65% of consumers whose homes are currently not up to code to shore up their dwellings,” thereby reducing average annual losses by as much as 48% ($37 billion). Id.; see also Veronika Torarp et al., PwC, Climate Risk and Insurance: The Case for Resilience (2015), https://www.pwc.com/us/en/industries/financial-services/library/climate-risk-and-insurance.html [https ://perma.cc/U78D-48Y8]; Enhancing the Insurance Sector’s Contribution to Climate Adaptation, OECD (Mar. 28, 2023), https://www.oecd.org/en/publications/enhancing-the-insurance-sector-s-contribution-to-climate-adaptation_0951dfcd-en.html [https://perma.cc/QY6U-RKJQ]; Idan Sasson, June Choi, Morgan Richmond, Nidhi Upadhyaya & Angela Ortega Pastor, Building Climate Resilience in Cities Through Insurance 6 (2021), https://www.climatepolicyinitiative. org/wp-content/uploads/2021/10/Building-Climate-Resilience-in-Cities-ThroughInsurance.pdf [https:// perma.cc/BX6M-Y9Q6] (stating that “insurance can help reduce risk by increasing risk awareness, incentivizing risk reduction, and supporting economic development”). ↑

30. . Catastrophe Models and Risks, Moody’s, https://www.moodys.com/web/en/us/capabilities/ catastrophe-modeling.html [https://perma.cc/R36T-PLN2]. ↑

31. . A 2024 Deloitte survey of 2,000 homeowners from twenty-one states found 63% “expressing confusion about what coverage they need and how much to purchase.” Kelly Cusick, David Sherwood, Michelle Canaan & Namrata Sharma, Bridging Insurance Gaps to Prepare Homeowners for Emerging Climate Change Risks, Deloitte Ctr. for Fin. Servs. (May 2, 2024), https://www2.deloitte.com/ us/en/insights/industry/financial-services/bridging-the-gap-between-homeowners-insurance-companies -climate-change.html [https://perma.cc/4JCK-UJ5G]. ↑

32. . Eighty-four percent of surveyed homeowners expressed wanting insurance carriers “to educate them on weather-related risks and how to prevent or mitigate losses.” Id. ↑

33. . Homeowners Insurance Discounts from State Farm, State Farm, https://www.statefarm. com/insurance/homeowners/discounts [https://perma.cc/7PMG-A6C3]. ↑

34. . In the aftermath of the LA wildfires, The Wall Street Journal noted that we might see a “longer-term, secular shift” away from the traditionally regulated insurance market to a surplus market that was historically established for unique and high risks. This shift, if encouraged, could provide a safety valve for the market to those left uncovered or under-covered by a traditional admitted market. Telis Demos, There Is a Safety Valve for Private Home Insurance in California, Wall St. J. (Jan. 12, 2025), https://www.wsj.com/finance/wildfire-insurance-homeowners-costs-3889531f [https://perma.cc /6DWM-ZN2Z]. ↑

35. . See, e.g., Michael P. Vandenbergh, Private Environmental Governance, 99 Cornell L. Rev. 129 (2013); Sarah E. Light & Christina P. Skinner, Essay, Banks and Climate Governance, 121 Colum. L. Rev. 1895 (2021); Madison Condon, Market Myopia’s Climate Bubble, 2022 Utah L. Rev. 63; Cary Coglianese & Jennifer Nash, Motivating Without Mandates? The Role of Voluntary Programs in Environmental Governance, in Decision Making in Environmental Law 237 (LeRoy C. Paddock et al. eds., 2016); Carolyn Kousky & Sarah E. Light, Insuring Nature, 69 Duke L.J. 323 (2019) (situating insurance within private environmental governance and arguing that insurers can drive climate adaptation by conditioning coverage on risk-mitigation and resilience measures). ↑

36. . Jim Rossi & J.B. Ruhl, Adapting Private Law for Climate Change Adaptation, 76 Vand. L. Rev. 827 (2023) (considering ways that climate change disrupts property, tort, and contracts); Sean B. Hecht, Climate Change and the Transformation of Risk: Insurance Matters, 55 UCLA L. Rev. 1559 (2008) (examining incentives that insurance provides to influence climate change mitigation and adaptation). ↑

37. . See, e.g., Douglas A. Kysar, What Climate Change Can Do About Tort Law, 41 Env’t L. 1, 1 (2011) (arguing that climate change lawsuits force “courts to confront questions of harm, causation, and responsibility that lie at the frontiers of science and ethics”). ↑

38. . Intergovernmental Panel on Climate Change, Sixth Assessment Report: Headline Statements from the Summary for Policymakers, https://www.ipcc.ch/report/ar6/wg 1/downloads/report/IPCC_AR6_WGI_Headline_Statements.pdf [https://perma.cc/EAP4-KEQS] (“It is unequivocal that human influence has warmed the atmosphere, ocean, and land. Widespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere have occurred.”). ↑

39. . Climate Action Tracker, As the Climate Crisis Worsens, the Warming Outlook Stagnates (2024), https://climateactiontracker.org/publications/the-climate-crisis-worsens-the-warm ing-outlook-stagnates [https://perma.cc/ARA5-Z66K] (noting that “global warming projections for 2100 are flatlining, with no improvement since 2021”). ↑

40. . See Vandenbergh, supra note 34 (providing a synthetic and theoretical account of private environmental governance). ↑

41. . While mitigation focuses on reducing the causes of climate change, adaptation is concerned with reducing harms from climate change. See, e.g., Jonathan M. Gilligan, Carrots and Sticks in Private Climate Governance, 6 Tex. A&M L. Rev. 179 (2018) (examining shareholder activism as a means of private climate governance and the potential for collaborative rather than confrontational governance); Michael P. Vandenbergh & Daniel J. Metzger, Private Governance Responses to Climate Change: The Case of Global Civil Aviation, 30 Fordham Env’t L. Rev. 62 (2018) (exploring how private governance reduces climate impacts in the civil aviation sector); Maria L. Banda, The Bottom-Up Alternative: The Mitigation Potential of Private Climate Governance After the Paris Agreement, 42 Harv. Env’t L. Rev. 325 (2018) (examining the mitigation potential of private climate governance where State action is weak or lacking); Cynthia A. Williams, Private Climate Governance of Finance: “Net Zero” Prospects and Politics, 26 U. Pa. J. Bus. L. 1195 (2024). ↑

42. . But see Michael P. Vandenbergh & Bruce M. Johnson, The Role of Private Environmental Governance in Climate Adaptation, Frontiers in Climate, issue no. 3, Sept. 2021, art. no. 715368, at 2 (stating that “[n]o systematic analysis in the legal literature has examined private governance regarding climate change adaptation”). ↑

43. . This notion, referred to as moral hazard, claims that insurance shields policyholders from the actual costs of their risky activities such that an individual with insurance will take greater risks than she would have otherwise based on the assurance that, in the case of injury, her insurer will cover the cost. In the home insurance context, this might mean homeowners taking on excess risk in deciding where to live or how to build or maintain their property with the assurance of an insurance backstop. See, e.g., Joseph E. Stiglitz, Risk, Incentives and Insurance: The Pure Theory of Moral Hazard, 8 Geneva Papers on Risk & Ins. 4, 6 (1983) (“[T]he more and better insurance that is provided against some contingency, the less incentive individuals have to avoid the insured event, because the less they bear the full consequences of their actions.”). But see, e.g., Steven Shavell, On Moral Hazard and Insurance, 93 Q.J. Econ. 541 (1979) (modeling alternative interventions by insurers to account for insured’s moral hazard); Peter Molk, Playing with Fire? Testing Moral Hazard in Homeowners Insurance Valued Policies, 2018 Utah L. Rev. 347 (examining moral hazard in home insurance markets). Molk finds that in the eighteen states where “valued policy” laws require insurers to provide more generous compensation for certain total losses, losses were significantly lower than in states without these laws. A moral hazard theory would have predicted the opposite finding. Tom Baker situates the modern use of this notion in insurance as a means of deregulating and individualizing risk bearing. He critiques the “economics of moral hazard” as being incomplete: They give too much weight to individual control for preventing or minimizing loss and ignore institutional determinants. Tom Baker, On the Genealogy of Moral Hazard, 75 Tex. L. Rev. 237 (1996). ↑

44. . In the home insurance context, for example, flood insurance has been interpreted as encouraging economic development in high-risk coastal areas. See, e.g., Kenneth J. Bagstad, Kevin Stapleton & John R. D’Agostino, Taxes, Subsidies, and Insurance as Drivers of United States Coastal Development, 63 Ecological Econ. 285, 285–87 (2007) (arguing that state and local policies encouraging coastal development can provide perverse subsidies that increase flood damage risk). The thesis extends to reinsurers, identifying state guaranty funds as creating a moral hazard problem for property insurers. See, e.g., James G. Bohn & Brian J. Hall, The Moral Hazard of Insuring the Insurers, in The Financing of Catastrophe Risk 363 (Kenneth A. Froot ed., 1999). ↑

45. . See Omri Ben-Shahar & Kyle D. Logue, Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111 Mich. L. Rev. 197, 231–32 (2012). For some latent harms, like climate change, Ben-Shahar and Logue argue that latent regulation by insurance is less likely to succeed due to the long-time horizon required to reap the benefits of behavioral modification. Id. at 230–31. However, they also note that given the political coordination challenges that prevent the government from acting on this risk, insurance might still maintain a relative advantage. Id. But see Kenneth S. Abraham & Daniel Schwarcz, The Limits of Regulation by Insurance, 98 Ind. L.J. 215 (2022) (arguing that the insurance-as-regulation thesis overstates the loss-reducing potential of behavioral interventions by insurance and that insurance is limited in overcoming the failures of regulation); Richard V. Ericson, Aaron Doyle & Dean Barry, Insurance as Governance (2003) (examining how insurance functions as a governance mechanism by influencing individuals’ and businesses’ risk management practices and exploring how insurance goes beyond risk-spreading to actively shape social norms and behaviors, thus acting as a regulatory force in society). ↑

46. . Ben-Shahar & Logue, supra note 44, at 247. A law-and-society argument supplements this thesis, elaborating how insurance governs by influencing individuals’ and businesses’ risk management practices and actively shaping social norms and behaviors. See, e.g., Ericson et al., supra note 44. ↑

47. . Abraham & Schwarcz, supra note 44. ↑

48. . Id. at 222. ↑

49. . Ben-Shahar and Logue structure their argument as a comparative one, foiling the two domains against each other. ↑

50. . Ben-Shahar & Logue, supra note 44, at 229. ↑

51. . See Abraham & Schwarcz, supra note 44, at 274 (noting that “loss-prevention insights that an insurer communicates to its applicants and insureds are likely to become available to competing insurers” and that “even if competitors cannot identify these insights directly, they may be able to appropriate them indirectly simply by offering lower premiums” to those that have benefited from these insights). ↑

52. . U.S. Chamber of Com., The Preparedness Payoff: The Economic Benefits of Investing in Climate Resilience 4 (2024), https://www.uschamber.com/security/the-preparedness-payoff-the-economic-benefits-of-investing-in-climate-resilience [https://perma.cc/LZ2S- VTYM]. ↑

53. . Ben-Shahar & Logue, supra note 44, at 230. Indeed, most insurance products have a one- to three-year renewal period. Proposals for policies of longer duration confront a challenge with respect to solvency requirements. To provide contracts of a duration more complementary to climate adaptation, insurers would need larger capital reserves. Accounting for these reserves in premium pricing would make insurance prohibitively expensive. A 2012 study modeling long-term insurance products against adaptation scenarios found that capital requirements for a ten-year contract could be 50% higher than for a one-year contract, and the annual premium around 5.5% higher. Trevor Maynard & Nicola Ranger, What Role for “Long-Term Insurance” in Adaptation? An Analysis of the Prospects for and Pricing of Multi-Year Insurance Contracts, 37 Geneva Papers on Risk & Ins. 318 (2012). ↑

54. . See, e.g., Sean B. Hecht, Climate Change and the Transformation of Risk: Insurance Matters, 55 UCLA L. Rev. 1559, 1583 (2008) (“To the extent that climate change’s impacts can be limited, they will be more predictable and thus more insurable, creating business opportunities for insurers.”). ↑

55. . New scientific tools flesh out the theory that human activities in the industrial era have destabilized the Earth’s climate system and forced an acceleration of global warming, bringing on a cascade of climate calamities in the form of floods, windstorms, hurricanes, wildfires, and other forms of extreme weather. See, e.g., Ted Steinberg, Acts of God: The Unnatural History of Natural Disaster in America 127–47 (2000). ↑

56. . See, e.g., Barry E. Flanagan, Edward W. Gregory, Elaine J. Hallisey, Janet L. Heitgerd & Brian Lewis, A Social Vulnerability Index for Disaster Management, 8 J. Homeland Sec. & Emergency Mgmt., no. 1, 2011, art. no. 3. ↑

57. . Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability 144 (Hans-Otto Pörtner et al. eds., 2022), https://www.ipcc.ch/repo rt/ar6/wg2/downloads/report/IPCC_AR6_WGII_FullReport.pdf [https://perma.cc/S22A-NMZ5]. ↑

58. . See, e.g., Geneva Ass’n, Climate Change Risk Assessment for the Insurance Industry (2021), https://www.genevaassociation.org/sites/default/files/climate_risk_web_final_2502 21.pdf [https://perma.cc/GR85-2JC8] (elaborating insurers’ potential role in shaping climate adaptation incentives through private market mechanisms but notably leaving out discussion of how state insurance regulation structures or constrains those mechanisms). ↑

59. . Tom Baker & Anja Shortland, The Government Behind Insurance Governance: Lessons for Ransomware, 17 Regul. & Governance 1000 (2023) (arguing that insurance markets never govern risk in isolation but always rely on state action, and developing a three-part typology of state functions: (1) setting the legal and regulatory standards that enable insurance to operate as a governance mechanism; (2) investing in the public goods that reduce the underlying risks insurers cover; and (3) co-insuring catastrophic losses through backstops like residual market mechanisms, reinsurance facilities, or direct public insurance programs). ↑

60. . Various legal traditions, including the legal realist movement, critical legal studies, law and political economy, and legal institutionalism, theorize and elaborate ways that the state creates markets. See, e.g., Gregory Brazeal, Markets as Legal Constructions, 91 U. Cin. L. Rev. 595 (2023); Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang & Katharina Pistor, Legal Institutionalism: Capitalism and the Constitutive Role of Law, 45 J. Compar. Econ. 188 (2017). ↑

61. . For example, in Switzerland, the insurance market structure and regulatory environment incentivize their involvement in disaster risk prevention and mitigation. See, e.g., Paula Jarzabkowski, Eugenia Cacciatori, Konstantinos Chalkias & Rhianna Gallagher Rodgers, Disaster Insurance in Switzerland: The Cantonal Public Sector Insurance System (2022), https://paulajarzabkowski.com/wp-content/uploads/2024/11/Report-2022-DISASTER _INSURANCE_IN_SWITZERLAND_THE_CANTONAL_PUBLIC_SECTOR_INSURER_SYSTEM-EN.pdf [https://perma.cc/9GE2-3ACW]. ↑

62. . This functional usage is distinct from the use of “climate insurance” as a product category. In some industry contexts, “climate insurance” describes specialized financial instruments such as catastrophe bonds, weather derivatives, or parametric risk pools. ↑

63. . Our History, Phila. Contributionship, https://1752.com/about-us/history/ [https://perma. cc/T9PY-LDD6]. Incorporated in 1768, the Contributionship was based on a cooperative model: Policyholders shared both the risks and costs of fire damage. The Contributionship promoted fire safety by refusing to insure homes that it deemed to be high risk, like wooden homes with nearby trees. ↑

64. . The mutual aid model became less practical for insurers who required more capital to cover risks from urban fires, large industrial properties, and, eventually, natural disasters. The cooperative model was largely overtaken by private, for-profit models, allowing insurers access to additional capital through stockholder investment rather than through policyholder contributions alone. The shift toward for-profit insurance accelerated in the latter half of the 19th century as private insurers offered varied, competitive policies backed by substantial reserves and reinsurance policies. This market-driven approach ultimately allowed insurers to offer wider and more customized coverage, attracting a broader client base and establishing a competitive insurance market that largely replaced the mutual model. ↑

65. . P&C insurance is a broad category of insurance that covers personal property, including cars, homes, and liability. The Property-Casualty Insurance Business, AXA, https://www.axa.com/en/about-us/property-and-casualty-insurance [https://perma.cc/VD35-CN6K]. A 2023 Treasury Department report values the P&C sector at $876 billion. Fed. Ins. Off., supra note 18, at 11. As of 2022, there were 2,656 P&C insurers in the US. Id. The private P&C insurance market is concentrated, however, with the top ten insurers making up nearly 50% of the cumulative market. See Nat’l Ass’n of Ins. Comm’rs, Property and Casualty Insurance Market Share Report (2025), https://content. naic.org/sites/default/files/research-actuarial-property-casualty-market-share.pdf [https://perma.cc/CY A8-R6UP] (stating that the top ten insurers make up 47.88% of the market, while the top twenty-five make up 61.72%). ↑

66. . These policies reduce the risk of major financial loss for homeowners by transferring risk from homeowner to insurer. See Chris Kawashima & Joseph Reyes, What Is Property and Casualty Insurance? A Guide, Charles Schwab (Jan. 21, 2025), https://www.schwab.com/learn/story/what-is-property-and-casualty-insurance [https://perma.cc/ZD3C-YWXK]. ↑

67. . The most common type of homeowners insurance is HO-3 and covers dwellings and other structures on a policyholder’s property under open perils coverage. For a sample HO-3 policy, see Ins. Servs. Off., Homeowners 3– Special Form (1999), https://www.iii.org/sites/default/files/docs/pdf/ HO3_sample.pdf [https://perma.cc/ML2W-QWPS]. ↑

68. . In practice, however, insurers use proprietary forms that can depart in significant ways from the Insurance Services Office standard, so the precise scope of coverage varies by carrier and state. For a thorough evaluation of these variations and an account of the ways this shifts risks onto policyholders and lenders, see Daniel Schwarcz, Reevaluating Standardized Insurance Policies, 78 U. Chi. L. Rev. 1263 (2011). ↑

69. . See, e.g., Natural Disaster & Catastrophe Coverage, Chubb, https://www.chubb.com/us-en/ individuals-families/products/natural-disasters.html [https://perma.cc/W6WU-9UUE] (“A homeowners policy alone isn’t always enough, which is why we provide specialized services and coverage to preserve what matters most.”). ↑

70. . While many homeowners’ insurance policies cover wind damage, some areas, particularly along coastlines or in tornado-prone regions, require separate windstorm coverage due to increased risk. This specialized insurance provides protection against damage caused by high winds, including hurricanes and tornadoes. ↑

71. . Wildfire coverage may not always be included in standard homeowners’ insurance, particularly in regions susceptible to wildfires, such as parts of California and other areas in the western United States. Some insurers offer additional wildfire protection or endorsements that specifically cover damage caused by wildfires. Homeowners in these areas may also be encouraged to take preventive measures, such as creating defensible space around their homes, to lower their insurance premiums and reduce risk. ↑

72. . The regulatory arrangement emerges from the McCarran-Ferguson Act of 1945. 15 U.S.C. § 6701. ↑

73. . Insurers that are authorized to do business in a particular state are “admitted,” and they are “domiciled” in the state issuing their primary license. They may also seek licenses to do business in other states as “foreign” insurers. Surplus lines insurers need only be admitted in the state where they are admitted, and elsewhere are non-admitted and free of regulations concerning rate and policy. All insurers are subject to capital requirements. Commercial Insurance, Ins. Info. Inst., https://www.iii. org/publications/commercial-insurance/how-it-functions/regulation [https://perma.cc/UN9E -K9NK]. ↑

74. . Insurers are required to file annual financial statements, and states regulate their solvency. All admitted insurers are required to pay into guaranty funds that cover claims against insolvent insurers. When admitted insurers become insolvent, their unpaid claims are covered by the guaranty funds. Notably, surplus lines insurers are not included in the guaranty funds. Id. ↑

75. . States regulate rates in different ways. “Prior approval” requires state permission to put rate or policy form changes into effect. “File and use” and “use and file” govern insurers making rate changes, with the former requiring filing before the change and the latter allowing the change to be followed by filing with the state. If a state deems rates to be excessive, then the insurer may be required to refund the overcharged amount to policyholders. ↑

76. . See Surplus Lines, Nat’l Ass’n of Ins. Comm’rs (Oct. 27, 2025), https://content.naic.org/ insurance-topics/surplus-lines [https://perma.cc/D3XU-XWRT] (“Surplus lines insurers primarily focus on the development of new coverages and the structuring of policies and premiums for these unique risks.”). ↑

77. . Nat’l Ass’n of Ins. Comm’rs, Property and Casualty Insurance Industry 2 (2024), https://content.naic.org/sites/default/files/2023-annual-property-and-casualty-insurance-industries-anal ysis-report.pdf [https://perma.cc/8LFF-6ZVT] (providing 2023 results). A study of homeowners insurance rates concluded that average premiums increased by more than 30% from 2020 to 2023. While home insurance data is not publicly available, a recent economics study used novel techniques to assemble a large set of mortgage escrow data and quantified the year-on-year increase in premiums. See Keys & Mulder, supra note 19 (examining data for over seventy-four million household property expenditures and attributing the increase to the pass-through of increased reinsurance costs). ↑

78. . Staff of S. Comm. on the Budget, 118th Cong., Next to Fall: The Climate-Driven Insurance Crisis Is Here – and Getting Worse 17 (Comm. Print 2024), https://www.budget.senate. gov/imo/media/doc/next_to_fall_the_climate-driven_insurance_crisis_is_here__and_getting_worse. pdf [https://perma.cc/P7ER-FCPK]. The Senate Budget Committee collected nonrenewal data from 2018 to 2023 from twenty-three companies making up 65% of the homeowners’ insurance market nationwide. Id. at 1. ↑

79. . Id. at 9. ↑

80. . Fair Access to Insurance Requirements Plans, Nat’l Ass’n of Ins. Comm’rs (Dec. 13, 2024), https://content.naic.org/cipr-topics/fair-access-insurance-requirements-fair-plans [https://perma. cc/F9XK-FA3D]. ↑

81. . For a review of the origins of state insurance of last resort programs and analysis of how they function as de facto climate adaptation and housing affordability policies, see Michael Pappas, Climate Last Resorts, 16 U.C. Irvine L. Rev. 229 (2026). ↑

82. . Carolyn Kousky, John Aloysius Zinda, Hannah K. Friedrich, Talley Burley & Kyunghee Kang, Env’t Def. Fund, Driving Loss Reduction Through State-Created Residual Insurance Markets 8, app. at 30–33 (2025), https://library.edf.org/AssetLink/v7l028dx0 x68g22mj067j2kw411s28nj.pdf [https://perma.cc/NYW4-2JW3]. These states are Alabama, California, Connecticut, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Virginia, Washington, West Virginia, and Wisconsin. Id. ↑

83. . Id. Thirty-three states plus the District of Columbia have FAIR plans, while seven Atlantic and Gulf coast states offer Beach and Windstorm Plans: Alabama, Florida, Mississippi, New York, North Carolina, South Carolina, and Texas. Camille Joyce Lisay, Residual Markets Post Double-Digit Growth: AM Best, Ins. Bus. Mag. (Oct. 22, 2024), https://www.insurancebusinessmag.com/us/news/ breaking-news/residual-markets-post-doubledigit-growth-am-best-510656.aspx [https://perma.cc/5DV T-KV25]. ↑

84. . Press Release, AM Best, Best’s Special Report: Residual Market Policy Counts Double in Five Years Amid Weather-Related Challenges (Oct. 21, 2024), https://news.ambest.com/PR/Press Content.aspx?altsrc=2&refnum=35319 [https://perma.cc/Z74X-7Z7B]. ↑

85. . La. Citizens Prop. Ins. Corp., Management’s Discussion and Analysis 350 (2022), https://www.lacitizens.com/docs/default-source/financial-reports-and-statements/2022-management-discussion-and-analysis.pdf?sfvrsn=1676ee03_2 [https://perma.cc/R8VK-78YP]. The number of policies issued by the Louisiana Citizens Property Insurance Corporation increased from 47,093 in 2021 to 154,507 in 2022. This is a consequence of severe hurricane losses in 2020 and 2021. Id. Additionally, eleven Louisiana property insurers became insolvent, and another twelve companies submitted withdrawal notices to the state’s Department of Insurance. Id. ↑

86. . States structure their FAIR plans in various ways, with considerable variation in the degree of government intervention and in how they prioritize physical risk concerns against financial transition concerns. See Mark Nevitt & Michael Pappas, Climate Risk, Insurance Retreat, and State Response, 58 Ga. L. Rev. 1603 (2024). ↑

87. . About the California FAIR Plan, Cal. Fair Plan Prop. Ins., https://www.cfpnet.com/about-fair-plan/ [https://perma.cc/PQ44-CZN6]. ↑

88. . General Information, N.Y. Prop. Ins. Underwriting Ass’n, https://www.nypiua.com/gen eral-information [https://perma.cc/6YVP-NGD2]. ↑

89. . Who We Are, Citizens Prop. Ins. Corp., https://www.citizensfla.com/who-we-are [https:// perma.cc/ZAC9-4MWU]. ↑

90. . Assessments, Citizens Prop. Ins. Corp., https://www.citizensfla.com/assessments [https:// perma.cc/R76J-MV69]. In the case of a deficit, Citizens first levies a 15% premium surcharge on Citizens policyholder assessments. If a deficit remains, then it can levy an emergency assessment of up to 10% on statewide premiums, including most types of P&C policies, for as long as necessary to eliminate the deficit. Id. ↑

91. . La. Stat. Ann. §§ 2291–317 (West 2025) (creating the Louisiana Citizens Property Insurance Corporation). ↑

92. . Press Release, Sheldon Whitehouse, Chairman, U.S. Senate Comm. on the Budget, Whitehouse Presses Citizens Property Insurance for Answers About Company’s Solvency (Mar. 19, 2024), https://www.budget.senate.gov/chairman/newsroom/press/whitehouse-presses-citizens-property -insurance-for-answers-about-companys-solvency- [https://perma.cc/SGU8-U2SW]. ↑

93. . See, e.g., Omri Ben-Shahar & Kyle D. Logue, The Perverse Effects of Subsidized Weather Insurance, 68 Stan. L. Rev. 571, 571 (2016) (observing that “existing government subsidies are allocated differentially across households, resulting in a significant regressive redistribution favoring affluent homeowners in coastal communities”). ↑

94. . The NFIP is currently authorized until September 30, 2026. Congressional Reauthorization for the National Flood Insurance Program, Fed. Emergency Mgmt. Agency (Feb. 4, 2026), https:// http://www.fema.gov/flood-insurance/rules-legislation/congressional-reauthorization [https://perma.cc/K6F8 -GJHJ]. ↑

95. . Diane P. Horn, Cong. Rsch. Serv., IF10988, A Brief Introduction to the National Flood Insurance Program (2025), https://crsreports.congress.gov/product/pdf/IF/IF10988 [https:// perma.cc/7TMX-RAZX]. ↑

96. . Flood Maps, Fed. Emergency Mgmt. Agency (Jan. 22, 2024), https://www.fema.gov/ flood-maps [https://perma.cc/X8YQ-7E9T]. ↑

97. . In 2009, the Government Accountability Office (GAO) “found that the NFIP pays one-third to two-thirds of annual premium revenue to WYO companies but does not collect any data to compare these payments with actual expenses of the companies, making it impossible to know whether these payments are appropriate or excessive.” Carolyn Kousky & Leonard Shabman, Res. for the Future, Pricing Flood Insurance: How and Why the NFIP Differs from a Private Insurance Company 9 (2014), https://media.rff.org/documents/RFF-DP-14-37.pdf [https://perma.cc/R9YS-GM BS]. The Biggert-Waters Flood Insurance Reform Act of 2012 required reforms of the NFIP, including greater oversight and accountability of the WYO program. Section 100231 required FEMA to disclose the total amount of compensation paid to WYO companies for each fiscal year. This includes commissions and administrative fees paid to these companies for servicing flood insurance policies under the NFIP. Biggert-Waters Flood Insurance Reform Act of 2012, Pub. L. No. 112-141, § 100231, 126 Stat. 405, 949. However, a 2017 GAO report found that a lack of data continues to present a problem for developing an effective compensation methodology for WYO companies. U.S. Gov’t Accountability Off., GAO-17-36, Flood Insurance: FEMA Needs to Address Data Quality and Consider Company Characteristics When Revising Its Compensation Methodology 60 (2016), https://www.gao.gov/products/gao-17-36 [https://perma.cc/M9DL-4JTD]. ↑

98. . Write Your Own Flood Insurance Company List, Nat’l Flood Ins. Program, https://nfip services.floodsmart.gov/wyo-program-list [https://perma.cc/FX5L-JSM5]. ↑

99. . Flood Insurance, Fed. Emergency Mgmt. Agency (Jan. 2, 2026), https://www.fema.gov/ flood-insurance [https://perma.cc/ER8N-9ZFW]. ↑

100. . Id. ↑

101. . Critics also note that discounted rates are not means-tested, so they provide an inadequate subsidy for some and an excess subsidy for others. They also argue that subsidizing rates undermines the NFIP’s financial stability. Alicia Puente Cackley, Can FEMA and Flood Insurance Keep Up with the Rising Tide of Risks?, GAO: WatchBlog (Nov. 12, 2024), https://www.gao.gov/blog/can-fema-and-flood-insurance-keep-rising-tide-risks [https://perma.cc/D8GQ-8D8X]. ↑

102. . See, e.g., Alicia Puente Cackley, The Wave of Concerns Facing the National Flood Insurance Program, GAO: WatchBlog (Oct. 14, 2020), https://www.gao.gov/blog/wave-concerns-facing-national-flood-insurance-program [https://perma.cc/5NH3-83ZJ]; Brian Palmer & Jeff Turrentine, It’s Time to Fix Our Water-Logged National Flood Insurance Program, Nat’l Res. Def. Council (Oct. 28, 2025), https://www.nrdc.org/stories/time-fix-water-logged-national-flood-insurance-program [https://perma.cc/K9EM-RXG5]; Tik Root, Our National Flood Insurance Program Is a Trainwreck, Mother Jones (Dec. 17, 2023), https://www.motherjones.com/politics/2023/12/national-flood-insurance-program-debt-mismanagment-fema-private-brokers/ [https://perma.cc/GSV7-K2WH]. ↑

103. . Allstate Ins. Co., Allstate Insurance Company Standard Homeowners Policy 7, http://docs.nv.gov/doi/documents/home_policies/AllStateForms/AP1.pdf   %5Bhttps://perma.cc/NLF6-FDRN%5D. ↑

104. . Home Insurance Discounts, Allstate, https://www.allstate.com/home-insurance/home-insurance-discounts [https://perma.cc/SV4X-TRRK]. ↑

105. . Homeowners Insurance Discounts, Farmers Ins., https://www.farmers.com/discounts/hom eowners-insurance/ [https://perma.cc/56Z6-8VRJ]. ↑

106. . Homeowners Insurance Discounts from State Farm®, State Farm, https://www.statefarm. com/insurance/homeowners/discounts [https://perma.cc/2EK2-27Z2]. ↑

107. . For example, in Alabama, “[i]nsurers are required to offer an endorsement to a Homeowners policy to upgrade their home to an IBHS FORTIFIED Roof if it is damaged and needs replacing.” List of Mitigation Insurance Discounts and Tax Savings, Smart Home Am., https://www.smarthomeameric a.org/discounts-and-incentives/list-of-fortified-discounts-and-incentives [https://perma.cc/25X9-K3Q3]. ↑

108. . A home may be evaluated against a FORTIFIED standard to determine its degree of protection from severe weather and to make the homeowner eligible for insurance discounts, reduced deductibles, and tax credits. See Financial Incentives, FORTIFIED, https://fortifiedhome.org/incentives/ [https://perma.cc/9FGJ-9M8G]. ↑

109. . A notable critique of First Street Foundation is that it is not, as the name insinuates, a foundation but rather a for-profit company. While it was initially established as a nonprofit foundation, it reorganized as a for-profit company. Insurers’ reliance on private risk data without public oversight and with a profit motive invites concern about the equity implications. See Press Release, First St. Found., First Street Announces New Structure, Investment Partners, and Advisor (Feb. 29, 2024), https:// firststreet.org/press/first-street-announces-new-structure-investment-partners-and-advisor [https://per ma.cc/NU9F-V8VC] (“First Street has created First Street Technology, Inc., a new Public Benefit Corporation (PBC) that will be assigned the mission and assets of the non-profit First Street Foundation, Inc. and receive an influx of private investment, allowing the company to significantly grow its impact.”). ↑

110. . Press Release, First St. Found., First Street Foundation Enters First Partnership with Major P&C Insurer (Oct. 12, 2023), [https://perma.cc/4KT2-U5S5] (only available by archived link). First Street has also similarly partnered with Fannie Mae and Freddie Mac. See Press Release, First St. Found., First Street Foundation Partners with Fannie Mae to Deliver Climate Risk Insights (Oct. 30, 2022), [https://perma.cc/8EZB-VLV2] (only available by archived link); Press Release, First St. Found., First Street Foundation Partners with Freddie Mac to Deliver Climate Risk Insights (Apr. 25, 2023), [https://perma.cc/YJE7-F56R] (only available by archived link). ↑

111. . Shankar Parameshwaran, How Higher Property Insurance Premiums Mirror Climate Risk, Knowledge at Wharton (Sept. 24, 2024), https://knowledge.wharton.upenn.edu/article/how-higher-property-insurance-premiums-mirror-climate-risk/ [https://perma.cc/8467-YDB7] (citing Keys & Mulder, supra note 19). ↑

112. . Jean Eaglesham, Home Insurance Premiums Are Surging—and States Are Allowing It, Wall St. J. (July 11, 2024), https://www.wsj.com/finance/regulation/home-insurance-premiums-surge-states-approve-8656877d [https://perma.cc/66CF-3RK7]. ↑

113. . Press Release, N.C. Dep’t of Ins., Commissioner Causey Negotiates Settlement on Rate Bureau’s Homeowners’ Insurance Request (Jan. 17, 2025), https://www.ncdoi.gov/news/press-releases/2025/01/17/commissioner-causey-negotiates-settlement-rate-bureaus-homeowners-insurance-request %5Bhttps://perma.cc/Q57R-2AB9%5D. For a typical homeowner this would have meant that annual premiums increase from about $3,400 to $6,800. Jean Eaglesham, Insurers Rake in Profits as Customers Pay Soaring Premiums, Wall St. J. (Jan. 25, 2024), https://www.wsj.com/finance/insurance-companies-profits-stock-ebae7fd1 [https://perma.cc/C3NR-JNNG]. ↑

114. . Press Release, N.C. Dep’t of Ins., supra note 112. ↑

115. . Id. ↑

116. . Press Release, Pub. Citizen, Insurance Giant AIG to Limit Homeowners Insurance Sales for 200 Counties Across U.S. (June 8, 2023), https://www.citizen.org/news/insurance-giant-aig-to-limit-homeowners-insurance-sales-for-200-counties-across-u-s/ [https://perma.cc/8DYA-HVQJ]. ↑

117. . Jordan Valinsky, Farmers Insurance Pulls Out of Florida, Affecting 100,000 Policyholders, CNN (July 12, 2023), https://www.cnn.com/2023/07/12/business/farmers-insurance-florida/index.html [https://perma.cc/G9EW-WJ3Z]. ↑

118. . Ramishah Maruf, Another Major Insurance Company Limits New Homeowners Insurance in California, CNN (July 10, 2023), https://www.cnn.com/2023/07/10/business/farmers-insurance-california/index.html [https://perma.cc/PVR4-D7YT]. ↑

119. . Press Release, State Farm, State Farm General Insurance Company®: California New Business Update (May 26, 2023), https://newsroom.statefarm.com/state-farm-general-insurance-company-california-new-business-update/ [https://perma.cc/LZC8-2DKC] (announcing this policy effective May 27, 2023). ↑

120. . Press Release, State Farm, State Farm General Insurance Company: Update on California (Mar. 20, 2024), https://newsroom.statefarm.com/update-on-california/ [https://perma.cc/7QQ3-EQZ5]. ↑

121. . Claire Hao, Yet Another Home Insurance Giant Quietly Stops Writing New Policies in California, S.F. Chron. (June 2, 2023), https://www.sfchronicle.com/california/article/insurance-allstate-fires-18130622.php [https://perma.cc/2HMJ-TTMT]. ↑

122. . See, e.g., Elliott Mittler, A Case Study of Florida’s Homeowners’ Insurance Since Hurricane Andrew (Nat. Hazards Ctr., Working Paper No. 96, 1997), https://hazards.colorado.edu/research/ working-papers/96 [https://perma.cc/2T9J-4L79] (developing a case study of Florida’s regulatory response to insurers withdrawing from the state after suffering $16 billion in losses from Hurricane Andrew). The case study identifies state-level reforms, including “aggressive mitigation programs designed to retrofit existing structures and to encourage the future construction of hurricane-resistant structures.” Id. ↑

123. . In order to participate in the NFIP, a community “must adopt and enforce floodplain management regulations that meet or exceed the minimum NFIP standards and requirements.” Fed. Emergency Mgmt. Agency, Unit 5: The NFIP Floodplain Management Requirements 5-4, https://www.fema.gov/pdf/floodplain/nfip_sg_unit_5.pdf [https://perma.cc/QKL3-KYKP]. ↑

124. . Municipalities, counties, special districts, tribal governments, regional authorities. For a full list of CRS communities with respective discounts, see Fed. Emergency Mgmt. Agency, CRS Eligible Communities (2025), https://www.fema.gov/sites/default/files/documents/fema_crs_eligible -communities_apr-2025.pdf [https://perma.cc/G9VU-HLVY]. ↑

125. . Community Rating System, Fed. Emergency Mgmt. Agency (Apr. 2, 2026), https://www. fema.gov/floodplain-management/community-rating-system [https://perma.cc/3NEC-GMXU]. Activities fall under four categories: public information, mapping and regulations, flood damage reduction, and warning and response. ↑

126. . Discounts are offered in increments of 5% and capped at 45%. Fed. Emergency Mgmt. Agency, National Flood Insurance Program: Community Rating System: A Local Official’s Guide to Saving Lives, Preventing Property Damage, and Reducing the Cost of Flood Insurance (2018), https://www.fema.gov/sites/default/files/documents/fema_community-rat ing-system_local-guide-flood-insurance-2018.pdf [https://perma.cc/79LV-LYMA]. ↑

127. . Angelo Verzoni, History of the National Fire Protection Association, Nat’l Fire Prot. Ass’n (Nov. 6, 2024), https://www.nfpa.org/news-blogs-and-articles/Blogs/2024/11/06/history-of-nfpa [https://perma.cc/D4W3-FFQ6] (stating that the NFPA was founded by a group of insurance professionals and now has more than 250 technical committees that publish NFPA codes and standards). ↑

128. . Firewise USA, Nat’l Fire Prot. Ass’n, https://www.nfpa.org/education-and-research/wild fire/firewise-usa [https://perma.cc/HLN2-HUZS]. ↑

129. . Property Insurance, USAA, https://www.usaa.com/inet/wc/property-insurance [https:// perma.cc/F8PN-DU94]. ↑

130. . Safer from Wildfires, Cal. Dep’t of Ins., https://www.insurance.ca.gov/01-consumers/200-wrr/Safer-from-Wildfires.cfm [https://perma.cc/5PPS-DGMR]. ↑

131. . Jesse D. Gourevitch & Nicholas Pinter, Federal Incentives for Community-Level Climate Adaptation: An Evaluation of FEMA’s Community Rating System, 18 Env’t Rsch. Letters, 2023, art. no. 034037, https://iopscience.iop.org/article/10.1088/1748-9326/acbaae [https://perma.cc/E9SF-3XLB]; Abdul-Akeem Sadiq et al., Review of the Federal Emergency Management Agency’s Community Rating System Program, 21 Nat. Hazards Rev., Mar. 2020, art. no. 03119001-1; Eugene Frimpong, Daniel R. Petrolia, Ardian Harri & John H. Cartwright, Flood Insurance and Claims: The Impact of the Community Rating System, 42 Applied Econ. Persps. & Pol’y 245 (2020); Wesley E. Highfield & Samuel D. Brody, Determining the Effects of the FEMA Community Rating System Program on Flood Losses in the United States, 21 Int’l J. Disaster Risk Reduction 396 (2017). ↑

132. . Letter from Talley Burley, Jesse Gourevitch & Carolyn Kousky, Env’t Def. Fund, to Deanne Criswell, Adm’r, Fed. Emergency Mgmt. Agency (Sept. 6, 2024), https://www.icrrl.org/wp-content/blogs.dir/102/files//EDF-Comment-On-FEMA-Community-Rating-System-Redesign.pdf [https://perma.cc/4B5Y-ATN8]. ↑

133. . See Emily Flitter, By Burning Down Buildings, Insurers Want to Change How They’re Built, N.Y. Times (July 15, 2024), https://www.nytimes.com/2024/07/15/business/wildfires-home-insurance-building-standards.html [https://perma.cc/F6TU-BPQ8] (reporting on advocacy by the Insurance Institute for Business & Home Safety, backed by more than 100 insurance companies, promoting “new standards for landscaping, fencing and building materials that it says can help prevent a wildfire from ripping through a neighborhood”). ↑

134. . See, e.g., Alistair Gray, Lloyd’s of London Urges US Government to Stop Insuring Floods, Fin. Times (May 15, 2016), https://www.ft.com/content/b3eb751c-16da-11e6-9d98-00386a18e39d [https://perma.cc/BHB9-CGJN] (discussing Lloyd’s of London’s opposition to the NFIP subsidizing insurance in high flood-risk coastal areas). ↑

135. . State Farm, 2022 Task Force on Climate-Related Financial Disclosures Report 9 (2023), https://impact.statefarm.com/data/docs/2022/2022_TCFD_Report_08_2023.pdf [https://perm a.cc/7GSF-MRUU] (“[T]hrough its federal and state lobbying efforts, State Farm is active in public policy discussions, promoting improved building code adoption to help mitigate potential risk and build resilient communities.”). ↑

136. . Dave Hill, Vice President, State Farm, Public Hearing of the National Association of Insurance Commissioners Southeastern Zone: Insurance Issues in Coastal Zones (Sept. 24, 2007), https://content.naic.org/sites/default/files/committee _related_documents/committees_c_070924_state_farm.pdf [https://perma.cc/UY5D-YDWW]. ↑

137. . Carbon Disclosure Project, The Allstate Corporation—Climate Change 2023, at 55 (2023), https://delivery.contenthub.allstate.com/api/public/content/e96f228943cb452db6e0d8a108a e1b25?v=53787239 [https://perma.cc/YZ4J-9JWQ] (“Allstate actively engages federal and state governments on catastrophe management issues and building code and land use planning reform. This engagement began prior to 2017 and is expected to continue through 2023 and beyond.”). ↑

138. . Travelers, Travelers Task Force on Climate-Related Financial Disclosures Report 2023, at 19 (2023), https://sustainability.travelers.com/iw-documents/sustainability/Travelers _TCFDReport2023.pdf [https://perma.cc/AE2D-GTT7]. ↑

139. . The NFPA is an industry-supported organization concerned with “fire prevention, wildfire preparedness, and electrical safety to hazardous materials, community risk reduction, and public safety.” About Us, Nat’l Fire Prot. Ass’n, https://www.nfpa.org/about-nfpa [https://perma.cc/53F8-WNE3]. ↑

140. . The IBHS is funded by insurance companies. See Why IBHS?, Ins. Inst. for Bus. & Home Safety, https://ibhs.org/about-ibhs/ [https://perma.cc/BAG9-J28C]. ↑

141. . Beginning in the 1970s and ’80s, the IBHS began providing the insurance industry with “technical information about building codes, effective land use controls, new building designs and retrofit applications.” Id. In 2010, it opened the Research Center to conduct testing of various construction materials and systems. ↑

142. . In the recent case of Aloha Petroleum, Ltd. v. National Union Fire Insurance Co. of Pittsburgh, the Hawaii Supreme Court held that greenhouse gases are an example of “traditional environmental pollution.” Aloha Petroleum, Ltd. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 557 P.3d 837, 841, 855 (Haw. 2024) (adopting the insurer’s rationale, affirming that the “court respects climate science” and had held that Hawaii’s constitution protects the “right to a stable climate system,” and finding that greenhouse gases “are ‘pollutants’ under the insurance policies’ pollution exclusion clause”). ↑

143. . Subrogation allows an insurer to stand in the shoes of the insured and to pursue repayment for losses from a third party who caused or contributed to the covered loss event. For example, a home insurance policy might cover losses due to an accidental fire and subsequently pursue a subrogation claim against a neighbor who negligently caused the fire. ↑

144. . Arundhati Sarkar, PG&E Settles Wildfire Claims with Insurers for $11 Billion, Reuters (Sep. 13, 2019), https://www.reuters.com/article/business/pge-settles-wildfire-claims-with-insurers-for-11-billion-idUSKCN1VY1FN [https://perma.cc/6P97-YU9C]. ↑

145. . Tim Zawacki, State Farm Receives $1.2B+ from PG&E; Wildfire Subrogation Trust, S&P Glob.: Mkt. Intel. (Aug. 25, 2020), [https://perma.cc/5J4U-K9E6] (only available by archived link). Several other insurance companies, including Farmers Insurance and CSAA Insurance Exchange, sold off their subrogation rights to the distressed debt investor Baupost Group. ↑

146. . Parties’ Joint Status Conference Statement Regarding September 10, 2019 Status Conference on Estimation at 6, In re PG&E Corp., No. 19-cv-05257 (N.D. Cal. Sept. 5, 2019). ↑

147. . Tex. Dep’t of Ins., Insured Losses Resulting from the February 2021 Texas Winter Weather Event: Catastrophe Statistical Plan Data as of July 31, 2021 (2021), https ://www.tdi.texas.gov/reports/documents/feb2021-tx-winter-weather-summary-july2021.pdf   [https:// perma.cc/A9SA-TKYD]. ↑

148. . The Texas Supreme Court addressed the issue of sovereign immunity for ERCOT in a consolidated opinion encompassing two cases, Electric Reliability Council of Texas, Inc. v. CPS Energy, 648 S.W.3d 520 (Tex. App. 2021), aff’d, 671 S.W.3d 605 (Tex. 2023) and Panda Power Generation Infrastructure Fund, LLC v. Electric Reliability Council of Texas, Inc., 641 S.W.3d 893 (Tex. App. 2022), rev’d, 671 S.W.3d 605 (Tex. 2023). The court’s decision affirmed the dismissal of claims against ERCOT in the CPS Energy case and reversed the lower court’s decision in the Panda Power case, rendering judgment in favor of ERCOT in both instances. CPS Energy v. Elec. Reliability Council of Tex., Inc., 671 S.W.3d 605 (Tex. 2023). The Texas Supreme Court found in a 5-4 decision that ERCOT, though a private nonprofit, is entitled to sovereign immunity due to its status as an essential governmental function under the direct oversight of the Texas Public Utility Commission. This status means ERCOT is shielded from certain civil lawsuits, including claims related to its actions during winter storm Uri in 2021. The court determined that ERCOT’s role as the state’s independent system operator, mandated by the Public Utility Regulatory Act, makes it an “arm of the state” performing uniquely governmental duties. ↑

149. . Fla. Stat. § 366.98(1) (West 2025) (“A public utility is not liable for damages based in whole or in part on changes in the reliability, continuity, or quality of utility services which arise in any way out of an emergency or disaster, including, but not limited to, a state of emergency declared under s. 252.36. Consistent with the commission’s jurisdiction over public utility rates and service, issues relating to the sufficiency of a public utility’s disaster preparedness and response shall be resolved by the commission.”). ↑

150. . William Rabb, Florida Power & Light Class Action Opens Door to Subrogation, Future Storm Claims, Ins. J. (Jan. 18, 2022), https://www.insurancejournal.com/news/southeast/2022/01/18/64 9667.htm [https://perma.cc/L6J2-VWHD]. ↑

151. . Original Class Action Complaint and Demand for Jury Trial at 36–37, Ill. Farmers Ins. Co. v. Metro. Water Reclamation Dist. of Greater Chi., No. 2014-CH-06608 (Ill. Cir. Ct. Apr. 16, 2014). ↑

152. . Id. at 20 (“This defendant knew or should have known that climate change in Cook County has resulted in greater rainfall volume, greater rainfall intensity and greater rainfall duration than pre-1970 rainfall history evidenced, resulting in greater stormwater runoff from a rainfall with Cook County and its Watersheds.”). The complaint further details that the defendant failed to plan for or take any mitigating steps ahead of the rainfall period. Id. at 24. (“If this Defendant had adopted reasonable stormwater management practices, the sewer water invasions suffered by this Defendant’s members of the Plaintiff Class would not have occurred.”). ↑

153. . Id. at 20; City of Chi., Chicago Climate Action Plan 40–43 (2008), https://www. chicago.gov/content/dam/city/progs/env/CCAP/CCAP.pdf [https://perma.cc/RUU5-D7U5]. ↑

154. . Original Class Action Complaint and Demand for Jury Trial, supra note 150, at 24 (“If this Defendant had adopted reasonable stormwater management practices, the sewer water invasions suffered by this Defendant’s members of the Plaintiff Class would not have occurred.”). ↑

155. . Less than two months after filing, Farmers Insurance withdrew its lawsuit. Hunter Book, Farmers Insurance Withdraws Class Action Alleging Failure to Adapt to Climate Change, Sabin Ctr. for Climate Change L.: Climate L. Blog (June 16, 2014), https://blogs.law.columbia.edu/climate change/2014/06/16/farmers-insurance-withdraws-class-action-alleging-failure-to-adapt-to-climate-cha nge/ [https://perma.cc/6XRY-EWCH]. ↑

156. . California’s export list of items eligible for E&S coverage includes sawmills, amusement parks, explosives manufacturing facilities, and fireworks displays. Ricardo Lara, Cal. Ins. Comm’r, Bulletin 2022-4 (June 24, 2022), https://www.insurance.ca.gov/0250-insurers/0300-insurers/0200-bulletins/bulletin-notices-commiss-opinion/upload/ADA-Compliant-Bulletin-2022-4-Export-List.pdf [https://perma.cc/2TKT-T9A7] (export list). In addition to the export list, risks and coverages may be exportable subject to a diligent search and full documentation pursuant to section 1763 of the California Insurance Code. New York’s export list includes aircraft manufacturing, carnivals, monster trucks liability, and hazardous waste disposal sites. Export List, Excess Line Ass’n of N.Y., https://www. elany.org/publications-and-resources/publications/elany-says [https://perma.cc/5Z82-SFET]. ↑

157. . U.S. Excess & Surplus Insurance Market Outperformance to Continue, Fitch Ratings (Oct. 4, 2023), https://www.fitchratings.com/research/insurance/us-excess-surplus-insurance-market-outper formance-to-continue-04-10-2023 [https://perma.cc/R8GA-N35A]. ↑

158. . Baird Webel, Cong. Rsch. Serv., RS22506, Surplus Lines Insurance: Background and Current Legislation 1 (2010), https://crsreports.congress.gov/product/pdf/RS/RS22506 [https: //perma.cc/P6VG-2B56]. ↑

159. . Courtney Baggett & Cassandra R. Cole, Regulation and Surplus Lines Activity, 37 J. Ins. Regul., no. 5, 2018, at 1, 1–2. ↑

160. . Several attempted legislative reforms would have brought surplus insurance under federal regulation and required guaranty funds for surplus insurers. Webel, supra note 157, at 3–6. ↑

161. . John Horneff, Climate Change Is Pushing Insureds to the E&S Market, PropertyCasualty360 (Sept. 13, 2022), https://www.propertycasualty360.com/2022/09/13/climate-change-is-pushing-insureds-to-the-es-market/?slreturn=20240614-22729 [https://perma.cc/E56E-TC5 V] (“The amount of direct homeowners’ premiums in California by E&S filers has almost tripled in the last three years, rising from $85.1 million in 2018 to $235 million in 2021, according to an S&P Global Market Intelligence analysis of regulatory statements submitted to the National Association of Insurance Commissioners.”). ↑

162. . Of the $899 billion in property and casualty direct premiums written in 2022, $99 billion were written by E&S insurers. ↑

163. . Press Release, Triple-I, Excess and Surplus Lines See Growth in Recent Years Due to Admitted Markets Pulling Back or Exiting Markets: Triple-I (Sept. 23, 2024), https://www.busines swire.com/news/home/20240923194906/en/Excess-and-Surplus-Lines-See-Growth-in-Recent-Years-Due-to-Admitted-Markets-Pulling-Back-or-Exiting-Markets-Triple-I [https://perma.cc/C8WU-PFKY]. ↑

164. . David Blades, Viewpoint: Challenging P/C Market Generates Opportunities for Surplus Lines’ Writers, Ins. J. (May 8, 2025), https://www.insurancejournal.com/news/national/2025/05/08/82 2819.htm [https://perma.cc/AV5K-QF6Y]. ↑

165. . Florida-Based FCCI Moving into Excess and Surplus Market Oct. 1, Ins. J. (Sept. 6, 2024), https://www.insurancejournal.com/news/southeast/2024/09/06/791664.htm [https://perma.cc/UQ9L-6Z CR]. ↑

166. . Jillian D’Onfro, Why a ‘Scarlet Letter’ Insurance Is Increasingly One of the Only Options for Homeowners, S.F. Standard (Jan. 10, 2025), https://sfstandard.com/2025/01/10/california-insur ance-crisis-surplus-line-la-fires/ [https://perma.cc/54KL-E5A2]. ↑

167. . Data on homeowners policy counts and premiums from 2004 to 2024 was obtained by the author from the California Surplus Lines Association (on file with the author). These figures show a growing surplus market, though surplus coverage remains a small share of the broader private market. The California Department of Insurance reported 8.3 million admitted homeowners policies in 2023. See Cal. Dep’t of Ins., Residential Insurance Policy Analysis by County, 2020 to 2023, at 1 (2024), https://www.insurance.ca.gov/01-consumers/200-wrr/upload/Residential-Insurance-Policy-Ana lysis-by-County-2020-to-2023-2.pdf [https://perma.cc/U5N4-93NR]. ↑

168. . Notably, AM Best gives surplus lines a favorable rating. See AM Best, Improved Underwriting and Operating Results Sustain US Surplus Lines Market Momentum 3 (2024), https://web.ambest.com/docs/default-source/events/improved-underwriting-and-operating-results-sustain-us-surplus-lines-market-momentum.pdf [https://perma.cc/Y44D-GE8H] (“98% of surplus lines insurers had AM Best long-term Issuer Credit Ratings (ICRs) of ‘a-’ or higher, compared with 84% for the total P/C industry.”). ↑

169. . See Susie Neilson & Megan Fan Munce, California, Four Other Western States Launch Probe into Underinsurance Following Chronicle Investigation, S.F. Chron. (July 2, 2025), https:// http://www.sfchronicle.com/california-wildfires/article/multistate-underinsurance-investigation-20418092 .php [https://perma.cc/7496-LRH6] (referencing an investigation which found “nearly every state in the coalition [of five states] had identified widespread underinsurance following at least one wildfire”). ↑

170. . See Parinitha Sastry, Tess Scharlemann, Ishita Sen & Ana-Maria Tenekedjieva, Climate Risk and the U.S. Insurance Gap: Measurement, Drivers and Implications 1 (Nov. 2024) (unpublished manuscript), https://conferences.fuqua.duke.edu/corpfinance/corporate-finance-2025/papers/3%20HO _Demand_Elasticities_20241118_SSST%20%281%29.pdf [https://perma.cc/L52P-ZSP7] (finding that “households respond to rising premiums by both dropping coverage as well as increasing mortgage debt”). ↑

171. . Welcome to North Light Specialty Insurance Company, N. Light Specialty, https://www. northlightspecialty.com/ [https://perma.cc/5Y83-J6BV]. ↑

172. . In this manner, a national insurer can maintain its presence in a given market through a subsidiary. If the subsidiary goes bankrupt, it can fold without creating financial liability for the parent company. ↑

173. . Carolyn Kousky, Understanding Disaster Insurance: New Tools for a More Resilient Future 115 (2022). ↑

174. . Id. ↑

175. . Lee Harris, Reinsurers Little Exposed to LA Fires After Retreat from Disaster Risks, Fin. Times (Jan. 16, 2025), https://www.ft.com/content/51e2f893-6822-4962-9469-112c6b72a3fe [https:// perma.cc/FFX3-T3JQ]. ↑

176. . Paige St. John, State Farm Cashes in on a Crisis, Sinclair L., https://www.sinclairlaw.com/ state-farm-cashes-in-on-a-crisis/ [https://perma.cc/4U46-GF3F]. ↑

177. . Paige St. John of Sarasota Herald-Tribune, Pulitzer Prizes, https://www.pulitzer.org/ winners/paige-st-john [https://perma.cc/8JP5-J37V]. ↑

178. . Fitch Ratings, Not All Insurer Financial Strength Ratings Are Created Equal 4 (2016), https://content.naic.org/sites/default/files/inline-files/cipr_events_impact_rating_fs_handout .pdf [https://perma.cc/MEL8-L6HR]. ↑

179. . About Us, AM Best (June 9, 2025), https://web.ambest.com/about-us [https://perma.cc/KN R7-LJ98]. ↑

180. . Current NRSROs, U.S. Sec. and Exch. Comm’n (Jan. 12, 2026), https://www.sec.gov/ about/divisions-offices/office-credit-ratings/current-nrsros [https://perma.cc/HLK5-KDGJ]. ↑

181. . Credit Rating Agency Reform Act of 2006, Pub. L. No. 109-291, 120 Stat. 1327. The Credit Rating Agency Reform Act recognized the importance of overseeing the rating industry and developed disclosure requirements for NRSROs, including procedures and methodologies used to determine ratings and policies and procedures to prevent misuse. As an NRSRO, the rating agency must comply with specific regulations regarding transparency, conflict of interest policies, and oversight. Id. at 1329–30. ↑

182. . See Financial Stability Ratings®, Demotech, Inc., https://www.demotech.com/financial-stability-ratings/ [https://perma.cc/BB56-2PBT] (“[W]hile operating profit remains an important element and consideration of [Financial Stability Ratings], the ability of an insurer to remain financially stable under a variety of economic scenarios requires a focus on balance sheet integrity, including a review of the quality and quantity of reinsurance protection as well as the relative adequacy of loss and loss adjustment expense reserves.”). ↑

183. . Fitch Ratings, supra note 177, at 6–7. ↑

184. . Id. at 11 (“Ratings shopping skews the ratings coverage of the most optimistic opinion, thus severely limiting ratings coverage across other CRAs. This practice can put ratings users at significantly heightened risks when making a (re)insurance security decision . . . .”). ↑

185. . This study was conducted by researchers at Columbia and Harvard Business Schools and a member of the Federal Reserve Board. See Parinitha Sastry, Ishita Sen & Ana-Maria Tenekedjieva, When Insurers Exit: Climate Losses, Fragile Insurers, and Mortgage Markets 19 (Dec. 2024) (unpublished manuscript), https://ssrn.com/abstract=4674279 [https://perma.cc/36KJ-8N49]. ↑

186. . Demotech’s president notes that without Demotech’s ratings, much of the Florida insurance market may not exist. William Rabb, Harvard Study Again Stirs the Pot on Demotech Ratings of Florida Carriers, Ins. J. (Apr. 15, 2024), https://www.insurancejournal.com/news/southeast/2024/04/15/769916.htm [https://perma.cc/FK4W-RFB2]. ↑

187. . Selling guides for lenders outline requirements, including that homes must be covered for at least the replacement cost of the property, hazard insurance, and flood insurance where the property is located in a flood zone. See, e.g., Selling Guide: B7-3-02, Property Insurance Requirements for One-to Four-Unit Properties, Fannie Mae (Feb. 7, 2024), https://selling-guide.fanniemae.com/sel/b7-3-02/ property-insurance-requirements-one-four-unit-properties [https://perma.cc/JL7K-EU45]. ↑

188. . Selling Guide: B7-3-01, General Property Insurance Requirements for All Property Types, Fannie Mae (Dec. 14, 2022), https://selling-guide.fanniemae.com/sel/b7-3-01/general-property-insur ance-requirements-all-property-types [https://perma.cc/Q87N-QQXB]. ↑

189. . Sastry et al., supra note 184, at 33. ↑

190. . Id. at 19. ↑

191. . Id. at 1–2. ↑

192. . Amine Ouazad & Matthew E. Kahn, Mortgage Finance and Climate Change: Securitization Dynamics in the Aftermath of Natural Disasters 1 (Nat’l Bureau of Econ. Rsch., Working Paper No. 26322, 2021), http://www.nber.org/papers/w26322 [https://perma.cc/HQM2-PKBQ]. ↑

193. . Lawrence Powell, Kenny Wunder & Boyi Zhuang, Is the U.S. Insurance Industry Resilient to Climate Change? Insurer Capitalization and the Performance of State Guaranty Associations 20 (Sept. 2, 2022) (unpublished manuscript), https://ssrn.com/abstract=4207834 [https://perma.cc/V8Z8-8DFP]. ↑

194. . The funds in a guaranty association are collected from insurance companies in the state at a rate of about 1% of total premiums collected. ↑

195. . See Powell et al., supra note 192 (simulating unexpected loss shocks to the insurance industry and finding that insurance guarantees “present short-term problems for policyholders and create long-term challenges for competitive private insurance markets”). ↑

196. . Thomas Frank, Fla. and La. Must Borrow Millions to Pay Insurance Claims, E&E News (May 2, 2023), https://www.eenews.net/articles/fla-and-la-must-borrow-millions-to-pay-insurance-claims/ [https://perma.cc/8DP7-EY2D]. Louisiana had to borrow $600 million, and Florida had to borrow $750 million. Id. ↑

197. . Id. ↑

198. . Id. (stating that Louisiana’s interest charges will reach $275 million by the time the debt is repaid in 2038). ↑

199. . This is an example of hybrid public-private governance. While the state does not mandate insurance, it outsources risk regulation to private lenders and insurers. Federal housing finance rules condition loan eligibility on continuous insurance, and private parties pass those requirements on to homeowners through private contracts. See, e.g., Selling Guide: B7-3-02, Property Insurance Requirements for One-to Four-Unit Properties, supra note 186; Selling Guide: B7-3-01, General Property Insurance Requirements for All Property Types, supra note 187. ↑

200. . See Nat’l Ass’n of Ins. Comm’rs, 2023 Market Share Reports for Property/ Casualty Groups and Companies by State and Countrywide 152–54 (2024), https://naic.soutron global.net/Portal/Public/en-GB/DownloadImageFile.ashx?objectId=10643&ownerType=0&ownerId= 4923 [https://perma.cc/PZA6-8CMP] (including figures for private insurers). ↑

201. . See Insurance Provided by FAIR Plans by State, Fiscal Year 2023, Ins. Info. Inst., https://www.iii.org/table-archive/20793 [https://perma.cc/GB5R-4J88] (stating that the figure for total state FAIR plan direct premiums written also includes habitational and commercial policies, but the commercial policies represent only 1.75% of policies). ↑

202. . Conn. Gen. Stat. § 38a-316b (West 2025). ↑

203. . Fla. Admin. Code Ann. r. 69O-170.017 (West 2026). ↑

204. . Rhode Island requires that insurers waive a hurricane deductible if homeowners adopt approved mitigation measures. 230-20 R.I. Code R. § 20-05-13.7 (LexisNexis 2026). ↑

205. . Carolyn Cohn & Noor Zainab Hussain, International, Domestic Insurers Push into Catastrophe-Hit US Property Markets, Reuters (Dec. 17, 2024), https://www.reuters.com/markets/us/ international-domestic-insurers-push-into-catastrophe-hit-us-property-markets-2024-12-16/ [https://perma.cc/456J-W7YD] (“Nationwide and AIG are among major U.S. insurers to offer E&S as well as admitted property cover.”). ↑

206. . Currently, only admitted insurers are required to contribute to state guaranty funds. New Jersey is one idiosyncratic exception. In 1984, New Jersey enacted the first surplus lines guaranty fund through the New Jersey Surplus Lines Insurance Guaranty Fund Act. The Act requires all eligible, non-admitted insurers to participate in the Fund. N.J. Stat. Ann. §§ 17:22-6.70 to 6.83 (West 2025). In 2022, the Fund’s coverage was limited to eligible surplus lines insurers issuing property insurance covering owner-occupied dwellings of fewer than four units. The surplus lines guaranty fund effectively functions as a symbolic consumer-protection measure that has had little practical relevance in recent decades because surplus lines insurer insolvencies are rare. But see James F. Johnson IV, Surplus Lines Guaranty Funds—New Jersey and Beyond, 20 The Forum 773 (1985) (arguing that the New Jersey Surplus Lines Insurance Guaranty Fund Act would dislocate the state’s surplus lines market and advising against transferring this model to other jurisdictions). Mississippi, Pennsylvania, Michigan, and Louisiana considered but rejected legislation establishing surplus lines guaranty funds. Id. at 774. While the proposal of state guaranty funds was considered in the 1970s and ’80s, it has not been a recent subject of serious deliberation. See, e.g., Richard R. Spencer, Jr., Surplus Lines Insurers and Guaranty Funds, 10 Seton Hall J. Legis. & Pub. Pol’y 93 (1986) (concluding that a guaranty fund for surplus lines insurers is an ineffective protection of policyholders and that a more compelling regulatory intervention would focus on preventive efforts to stem insolvencies through controls on financial stability). ↑

207. . The insurance industry is shifting away from large, national insurers to smaller, localized firms. Sophie Alexander & Leslie Kaufman, The Quiet Rise of Lightly Regulated Home Insurance, Bloomberg (Dec. 3, 2024), https://www.bloomberg.com/graphics/2024-home-insurance-risky-policy/ [https://perma.cc/JD5T-NWKP] (stating that as surplus insurers tied to large, admitted carriers cut their policies, newer and smaller companies are filling the market void). For example, out of 268 surplus insurers in Florida, 238 wrote fewer than 10,000 policies in 2024, and more than half (150) wrote fewer than 1,000 policies, according to the Florida Surplus Lines Service Office. Fla. Surplus Lines Serv. Off., 2024 Insurers Surplus Lines Premium Report, https://www.fslso.com/header-utility-items/ market-data-reports/surplus-lines-premium-report [https://perma.cc/FR9Q-FXA4] (customized report generated by Florida Surplus Lines Service Office website showing only aggregated 2024 insurers’ premium data and figures calculated based on data exported from the website in Excel). ↑

208. . Fla. Stat. Ann. § 366.98 (West 2025). In Texas, controlling doctrine has similar effect. See CPS Energy v. Elec. Reliability Council of Tex., Inc., 671 S.W.3d 605 (Tex. 2023). ↑

209. . See, e.g., Ben-Shahar & Logue, supra note 92, at 571 (arguing that state insurance subsidies “induce excessive development (and redevelopment) of storm-stricken and erosion-prone areas”). ↑

210. . See, e.g., Baird Webel & Carolyn Cobb, Cong. Rsch. Serv., Insurance Regulation: History, Background, And Recent Congressional Oversight 2 (2005), https://www.everycrs report.com/files/20050211_RL31982_1d5eff403f858929157d365c96ccc029206575a7.pdf [https://per ma.cc/7VTC-YBT3] (explaining that state insurance regulation developed to ensure consumer protection, market stability, and fair access to coverage); Fed. Ins. Off., U.S. Dep’t of the Treasury, How to Modernize and Improve the System of Insurance Regulation in the United States 46 (2013), https://home.treasury.gov/system/files/311/How%20to%20Modernize%20 and%20Improve%20the%20System%20of%20Insurance%20Regulation%20in%20the%20United%20States.pdf [https://perma.cc/UBF2-D356] (identifying access, affordability, and consumer protection as central goals of state insurance regulation). ↑

211. . In the auto insurance context, for example, the relevant activity is driving. The state sets substantive standards governing this activity in the form of licensing rules, speed limits, seatbelt mandates, and vehicle safety requirements. In turn, insurers reinforce these standards through coverage terms, pricing, and underwriting. ↑

212. . Some localized efforts are already revising existing standards to account for new climate risks. See, e.g., Claire Rush, Oregon Places New Rules on Homeowners Living in Certain High-Risk Wildfire Areas, AP News (Jan. 7, 2025), https://apnews.com/article/oregon-wildfire-hazard-map-45c0 335d93632580e07512a276dea7da [https://perma.cc/A8M9-FZKV] (discussing Oregon’s revised wildfire hazard maps following record-breaking wildfires due to climate change). ↑

213. . H.B. 25-1182, 75th Gen. Assemb., 1st Reg. Sess. (Colo. 2025) (to be codified at Colo. Rev. Stat. § 10-4-124(3)(a)–(b)) (“An insurer that uses a wildfire risk model, a catastrophe model, or a combination of models shall ensure the following factors are either incorporated in the wildfire risk model, catastrophe model, or combination of models or are otherwise demonstrably included in the insurer’s underwriting and pricing: (a) Property-specific mitigation actions such as establishing defensible space, incorporating building hardening measures, or receiving certification from an entity with expertise in mitigation of properties against wildfire; and (b) Community-level mitigation activities or designations, including forest treatment and other fuel reduction activities.”). ↑

214. . Commissioner Lara Enforces Groundbreaking Regulation to Expand Insurance Coverage in Wildfire-Prone Areas, Cal. Dep’t of Ins. (Dec. 13, 2024), https://www.insurance.ca.gov/0400-news/0102-alerts/2024/Commissioner-Lara-enforces-groundbreakin.cfm   [https://perma.cc/9BRM-PCDZ]. ↑

215. . In California, the Surplus Line Association reports that “surplus lines homeowners insurance is no longer limited to high-value or high-risk properties—it has become a broader solution as admitted carriers withdraw and demand rises.” Press Release, Surplus Line Ass’n of Cal., Surplus Line Association of California Highlights Homeowners Insurance Market Shift at 2025 Annual Meeting (Feb. 12, 2025), https://www.slacal.com/docs/default-source/general-content-documents/news-releases /2025-sla-annual-meeting-press-releaseff0000daf5f3605fb3205a7b47057041.pdf?sfvrsn=50f360c4_2 [https://perma.cc/9289-96BZ]. In these contexts, surplus lines now function less as a last resort market for idiosyncratic risks and more as a shadow system for delivering essential residential coverage. ↑

216. . Catastrophe bonds have gained traction in recent years as a mechanism to secure funding for large-scale disaster recovery efforts. Similarly, ILS deals allow insurers to package risks into securities that can be sold to institutional investors, further diversifying the sources of capital available to manage catastrophic events. See, e.g., Andy Polacek, Catastrophe Bonds: A Primer and Retrospective, Chi. Fed Letter, 2018, art. no. 405, at 1 https://www.chicagofed.org/publications/chicago-fed-letter/2018/405 [https:// perma.cc/29HG-QQ8Q] (elaborating the origins, function, and purpose of catastrophe bonds). ↑

217. . Catastrophe Bond & ILS Issued and Outstanding by Year, Artemis, https:// http://www.artemis.bm/dashboard/catastrophe-bonds-ils-issued-and-outstanding-by-year/ [https://perma.cc/ T9ER-T8ZQ] (to access data hover over dot plot for 2026). For a breakdown of cat bonds and ILS risk capital outstanding by risk or peril, see Catastrophe Bonds & ILS Outstanding by Risk or Peril, Artemis, https://www.artemis.bm/dashboard/cat-bonds-ils-by-risk-or-peril/ [https://perma.cc/MT28-8K3N]. ↑

218. . When claims from a hurricane or wildfire exceed specified thresholds, for example, the bond principal is released, providing insurers or public pools with immediate liquidity. Currently, catastrophe bond premiums are primarily invested in low-risk treasury instruments until a trigger event occurs. ↑

219. . In one example, the nonprofit Refocused Partners has proposed the RE.bound Program, which proposes linking physical resilience measures to monetized insurance benefits, leveraging the financial payoff of resilience planning to add value to catastrophe bond investors while supporting community resilience. The program uses catastrophe models that insurers currently rely on to price risks in existing capital markets and applies these models to price project-based risk reductions. In doing so, the RE.bound Program would extend the insurance industry’s own methodologies to identify and advance project-based risk reductions that generate resilience dividends and revenue. Refocus Partners, Leveraging Catastrophe Bonds as a Mechanism for Resilient Infrastructure Project Finance 7, https://www.refocuspartners.com/wp-content/uploads/2017/02/RE.bound-Progr am-Report-December-2015.pdf [https://perma.cc/C6E4-W4NB]. ↑

220. . For example, bluelining occurs when insurers raise premiums or avoid underwriting policies in geographic areas facing higher climate risk. It disproportionately impacts lower-income and marginalized groups: There is considerable overlap between high-flood risk maps and redlining maps from the early twentieth century. Further, wildfire risk is 50% higher for majority Black, Hispanic, or Native American census tracts than for other census tracts. Without the considerations of distributional equity, insurers might lower their own costs by providing resilience-enhancing policy incentives for wealthy areas and properties where larger savings might be achieved. Where property values are low, however, the returns of investing in resilience may not be worth the regulatory costs. These dynamics entrench geographic and racial disparities in access to climate security. See, e.g., Lily Katz, A Racist Past, a Flooded Future: Formerly Redlined Areas Have $107 Billion Worth of Homes Facing High Flood Risk—25% More Than Non-Redlined Areas, Redfin News (June 23, 2021), https://www.redfin. com/news/redlining-flood-risk/ [https://perma.cc/7X2B-B95X] (finding that, on average, “8.4% of homes in areas that were once deemed undesirable (redlined or yellowlined) face high flood risk, compared with 6.9% of homes in areas that were deemed desirable (greenlined or bluelined)”); Ian P. Davies, Ryan D. Haugo, James C. Robertson & Phillip S. Levin, The Unequal Vulnerability of Communities of Color to Wildfire, 13 PLOS One, issue no. 11, Nov. 2018, art. no. e0205825, at 1 (finding that “wildfire vulnerability is spread unequally across race and ethnicity”). ↑

221. . The case for liberalizing insurance finds support in a robust economics literature. These accounts would abandon the types of rate regulations that artificially suppress climate risk signals. See, e.g., Daniel Schwarcz, Essay, Ending Public Utility Style Rate Regulation in Insurance, 35 Yale. J. on Reg. 941, 978–87 (2018). ↑

222. . For example, Caroline Kousky and Howard Kunreuther have proposed a means-tested voucher program and mitigation loans. Carolyn Kousky & Howard Kunreuther, Res. for the Future & Wharton Risk Mgmt. and Decision Processes Ctr., Addressing Affordability in the National Flood Insurance Program (2013), https://www.rff.org/publications/journal-articles /addressing-affordability-in-the-national-flood-insurance-program/ [https://perma.cc/6Y2Z-ZD8W]. ↑