Notre Dame Law Review

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Netta Barak-Corren*

No piece of academic writing can clean, by itself, the mess left by 303 Creative v. Elenis.  Only the Court can.  This symposium piece can only offer analytical clarity on 303 Creative, which can help to understand and organize the mess.  I will proceed to do so in three steps.  First, I point out the glaring omissions of the Court’s opinion and criticize the dangerous consequences of the Court’s inexplicable approach.  Second, I discuss the inconsistency of the dissent and the truth it reveals about the unviability of its sweeping position.  Finally, I argue that the only way to clean the mess—and avoid creating further mess in the future—is to exercise the Court’s legal responsibility responsibly.  This could be accomplished, first, by selecting cases with broad applicability and the ingredients necessary to advance the doctrine; at the second step, the Court must write clear opinions that set explicit tests for lower courts and for the public, and must not evade inconvenient precedents, counterarguments, and the resolution of apparent ambiguities.  303 Creative failed on both grounds.  First, the Court succumbed to the temptation to pick a seemingly easy case to achieve a normatively appealing outcome, despite the case’s many idiosyncrasies and anomalies that make it highly problematic for doctrinal advancement.  Second, the Court penned an opaque and evasive decision under the guise of “what’s not to understand here?” and, as a result, muddied the doctrinal water further.  The only way for the Court to clean its mess now is to use the next opportunity where an apt case presents itself to present a sensible and socially responsible doctrine.  Meanwhile, lower courts should be aware of the problems of 303 Creative and apply the decision carefully.

The remainder of this piece is organized as follows: Part I provides background on 303 Creative v. Elenis.  Part II analyzes the mess left by the majority opinion.  Part III does the same for the dissent.  Part IV proposes a framework to clean and avoid further mess.

© 2024 Netta Barak-Corren.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.  This is a preliminary version of this Essay which is subject to technical changes by the author.

*Professor of Law and member of the Federmann Center for the Study of Rationality, The Hebrew University of Jerusalem, and Law, Ethics, and Public Policy Fellow at Princeton University Center for Human Values.  For helpful comments and suggestions, I thank Stephanie Barclay, Rick Garnett, Alexander Gouzoules, Nelson Tebbe, participants in the special symposium, and the editors of the Notre Dame Law Review.