Percolation's Value

70 Pages Posted: 1 Jun 2021

See all articles by Seth Davis

Seth Davis

University of California, Berkeley School of Law

Michael Coenen

Seton Hall University Law School

Date Written: May 29, 2021


Few legal metaphors enjoy more prominence than that of a legal issue
“percolating” through the lower courts until the Supreme Court is ready to resolve it.
Just two Terms ago, for example, the Court declined to answer a question presented in
Box v. Planned Parenthood of Indiana & Kentucky, Inc., reasoning that further percolation
would aid it in developing the scope of constitutional protections for a woman’s right to
choose. In Trump v. Hawaii, Justice Clarence Thomas wrote to express dismay that
nationwide injunctions are “preventing legal questions from percolating through the
federal courts.” Similarly, Justice Neil Gorsuch wrote in Department of Homeland
Security v. New York that nationwide relief undermines “the airing of competing views
that aids [the] Court’s own decisionmaking process,” a view shared by many critics of
the lower courts’ use of nationwide injunctions in recent years. A common presumption
is that percolation is valuable.

This Article questions that presumption. Its thesis is that, at best, percolation’s benefits will
outweigh its costs under limited and contingent conditions—conditions not likely to
replicate themselves across a broad range of cases. In advancing that thesis, the Article
makes four contributions to the literature on federal court practice and procedure. First, as
a historical matter, it shows that interest in percolation’s value is a relative latecomer to
the jurisprudential scene. Second, as an analytical matter, it distinguishes between
informational and institutional accounts of percolation’s value. Informational accounts
highlight percolation’s potential to provide useful information to enhance the Court’s
decisionmaking as to a particular legal issue. Institutional accounts, by contrast, see the
percolation process as beneficial to the effective functioning of the federal court system as
a whole. With this important but largely unrecognized distinction in mind, the Article
makes a third contribution by showing that both accounts are subject to significant
limitations. In particular, both the informational and institutional accounts of
percolation’s value are highly issue-dependent and context-specific. Therefore, as a
prescriptive matter, this Article makes a fourth contribution by highlighting a set of
practices that the federal courts or Congress might adopt in response to the limited nature
of percolation’s informational and institutional benefits.

Suggested Citation

Davis, Seth and Coenen, Michael, Percolation's Value (May 29, 2021). Stanford Law Review, Vol. 73, 2021, Available at SSRN:

Seth Davis (Contact Author)

University of California, Berkeley School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: http://

Michael Coenen

Seton Hall University Law School ( email )

1109 Raymond Blvd.
Newark, NJ 07102
United States

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