The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Time-Traveling Students

Justices Gorsuch and Barrett disagree about the nature of extensions for students.


On Friday, the Court decided HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Assn. Justice Gorsuch wrote the majority opinion, which was joined by Chief Justice Roberts, and Justices Thomas, Breyer, Alito, and Kavanaugh. Justice Barrett wrote her first dissent, which was joined by Justices Kagan and Sotomayor. The case presented a fairly technical question: Could the government grant a refinery an "extension" to a hardship exemption if the refinery's exemption had already lapsed? In other words, must an exemption currently be in place for that exemption to be extended? The majority answered the question no. The dissent answered the question yes.

I don't have strong thoughts on which opinion had the better interpretations of the statute. Both readings strike me as plausible. I did enjoy a back-and-forth between Justices Gorsuch and Barrett that is very familiar to all professors: what is the nature of an extension for students.

First, Justice Gorsuch explains that a professor can grant a student an extension, even if the original deadline had already passed:

It is entirely natural—and consistent with ordinary usage—to seek an "extension" of time even after some lapse. Think of the forgetful student who asks for an"extension" for a term paper after the deadline has passed, the tenant who does the same after overstaying his lease, or parties who negotiate an "extension" of a contract after its expiration. 

I'll admit, I would never consider granting an extension to a student after the deadline lapsed. Most deadlines are posted well in advance. If a student has some last-minute emergency, I would expect an email before the deadline passes. And generally, students ask for an extension at the eleventh hour. But missing the deadline, outright, would be the end of the matter. Lawyers who miss a filing deadline by one minute can forfeit a claim. These harsh rules matter. Perhaps Professor Gorsuch was more permissive. I take it that Professor Barrett was not.

Justice Barrett suggests that granting an extension, after the deadline has lapsed, is not actually extension. Rather, the professor is, in effect, retroactively modifying the due date:

The hypothetical that the Court offers to refute this critique—a teacher authorizing a student who missed a Friday deadline to turn in a paper between 8 a.m. and 9 a.m. on Monday—gets it nowhere. It is either an extension of the deadline to 9 a.m. on Monday, in which case it operates like the other deadline extensions I have described, with the teacher simply specifying when she will be present to receive the paper. Or it is an example of something other than a deadline extension—like the start of an entirely new window for timely conduct—in which case it is inapposite.

Justice Gorsuch responds with some Latin. Justice Barrett's counter amounts to a nunc pro tunc.

Beyond that, the dissent counters by attempting to recast all these varied examples of temporal extensions after interruption. It imagines, for example, that when a teacher extends a paper deadline after a lapse, that act of grace always operates like a nunc pro tunc judicial decree—retroactively deeming the time originally allotted as now extending continuously to some new and future due date. But no one thinks extensions always work this way. As the COVID-19 statutes illustrate, a previously lapsed benefit can and sometimes is "extended" for a new period without any retroactive effect. Likewise, if a student misses the 4p.m. deadline on Friday, his teacher may extend the deadline by authorizing him to hand in his paper the following Monday between 8 a.m. and 9 a.m. Besides, even looking to the nunc pro tunc analogy, what does it prove? It cannot change the fact that, absent time travel, a lapse or interruption has occurred. The student cannot go back in time and turn in his paper when it was originally due on Friday afternoon. His lapse may be forgiven or overlooked, maybe even with a Latin term invoked in the process, but none of that means a break in continuity, a lapse, or an interruption never happened.

Time-traveling law students! Of course, if a student could travel back in time, he would not have missed the deadline in the first place. His future self would have given his past-self the completed project. Sort of like Bill and Ted's Excellent Adventure.

I very much enjoyed this exchange.