Faculty Bibliography

For many years, liberals have favored broad standing and conservatives narrow standing. Yet that pattern has disappeared and is now reversing. We studied the Supreme Court justices' votes on standing during the fifteen-year period from October Term 2010 through October Term 2024. Our results show a stark change in voting patterns around October Term 2020, when the Court obtained a conservative supermajority. We label this development "the standing realignment," discuss several interrelated explanations, and suggest implications.

The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left, and vice versa. The clearest example involves Chevron deference: a doctrine once championed by conservatives like Justice Antonin Scalia has now been overruled in Loper Bright v. Raimondo—over dissenting votes by all three of the Court’s liberals. Similar points can be made about standing, stare decisis, textualism, positivism, and more. The basic reason for this transformation is straightforward: legal ideologies in power favor discretion, whereas those out of power favor constraint. Conservatives now firmly control the federal judiciary, so they are gradually abandoning their prior posture of constraint, even as liberals adopt it. As a result, the formalism that characterizes today’s legal culture is coming to an end. In the meantime, the left and the right’s mutual repositioning is helping to preserve both a workable legal system and a degree of shared legal culture.

Generative Artificial Intelligence (“AI”) is already beginning to alter legal practice. If optimistic forecasts prove warranted, how might this technology transform judicial opinions—a genre often viewed as central to the law? This Symposium Essay attempts to answer that predictive question, which sheds light on present realities. In brief, the provision of opinions will become cheaper and, relatedly, more widely and evenly supplied. Judicial writings will often be zestier, more diverse, and less deliberative. And as the legal system’s economy of persuasive ability is disrupted, courts will engage in a sort of arms race with the public: judges will use artificially enhanced rhetoric to promote their own legitimacy, and the public will become more cynical to avoid being fooled. Paradoxically, a surfeit of persuasive rhetoric could render legal reasoning itself obsolete. In response to these developments, some courts may disallow AI writing tools so that they can continue to claim the authority that flows from authorship. Potential stakes thus include both the fate of legal reason and the future of human participation in the legal system.

This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The jurisprudential theory is “personal positivism,” which holds that each judge’s publicly known rules of decision are the law for that jurist and, therefore, part of the overall law of the legal system. This theory offers a richer and more useful account of law in the United States today, including its dependence on the views of individual judges. Personal positivism also recognizes that the law is increasingly constituted by the views of competing groups of judges—one liberal, one conservative, and each with its own set of personal rules. At the same time, personal positivism maintains that there is an abundance of genuine law—not just politics—even in contested cases. The problem facing the U.S. legal system, then, isn’t that law is being replaced with politics, but rather that the law is too fragmentary. And the solution is not to ignore or suppress judicial individuality, but to harness it.

Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting the legal views variously maintained by conservatives and liberals, not just in court but also in the academy. Perhaps most fundamentally, the right (because it is newly in power) is becoming less formalist, and the left more so. In addition, the legal left and right are repositioning themselves, or trading places, with respect to topics like interpretive method, deference to agencies, and standing. This dynamic helps to reveal the underlying structure of the law. And greater appreciation of that underlying structure can benefit legal culture by fostering respect, humility, and toleration. These remarks were prepared for the keynote address at the National Conference of Constitutional Law Scholars, which was hosted in February 2024 by the University of Arizona James E. Rogers College of Law Rehnquist Center.

Gradualism should have won out in Dobbs. In general, the Supreme Court should not impose massive disruption without first providing notice of its contemplated course of action. Only the chief justice followed that principle, and as a result his decision is the most compelling. By contrast, the majority’s most plausible rationale was steeped in judicial statecraft: the majority claimed that only grand, decisive action could meet the challenge at hand. But by acting in haste, the Court compromised its own deliberative process and prevented the public from adequately preparing for an avulsive shift in the law. The joint dissent’s treatment of precedent was even less persuasive. The dissent’s own uses of precedent demonstrate how readily case law is thrown overboard. So if the majority had reason to moderate, the dissenters did, too—by joining a gradualist opinion like the chief’s.

Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. In the past, Justices who found themselves out of power have often tried to tighten justiciability principles. So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.

Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This Essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent — as vividly illustrated by Dobbs v. Jackson Women’s Health Organization. Further, the Justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the Justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.

Federal judges’ discretionary power to resign creates a problem and an opportunity. The problem is that judges and justices can renege on their resignation decisions for capricious, manipulative, or partisan reasons. Yet that discretionary power to resign also points toward a new opportunity for reform: “opt-in term limits,” that is, term limits that are established through judges’ voluntary but binding resignation announcements.

Judicial reasoning and rhetoric should be mutually reinforcing, but often they end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared "moribund," may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards. Third, majority coalitions have a counterintuitive incentive, rooted in rhetoric, to overrule relatively insignificant precedents. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often resent in judicial decisions, including excellent ones.

This Article provides an account of precedent that doesn't call upon it to do the one thing that everyone expects: constrain judicial decision-making. Instead, precedent is tasked to do something else: identify lawful options. So instead of beginning with precedent's limited ability to constrain, the argument focuses on what precedent enables. On reflection, precedent has always had two aspects: a permissive aspect that enables certain options and a prohibitory aspect that rules out others. When combined, precedent's permissive and prohibitory aspects can render certain outcomes mandatory. But that arrangement is contingent, not essential, and precedent's permissive aspect alone can do a great deal of work. First, precedent's epistemic value allows it to operate as a shortcut, affording judges an effective way to arrive at pretty good legal answers. Second, precedent's rhetorical value allows it to operate as a shield, thereby helping judges resist political and other pressures to deviate from case law. Precedent can thus foster convergence across jurists as well as fidelity to past decisions—even if it imposes no constraint whatsoever. The upshot is a new "permission model" of precedent, in contrast with the more familiar "binding model." The permission model challenges longstanding views of stare decisis, particularly horizontal stare decisis in the U.S. Supreme Court. For example, stare decisis is often lambasted for being a malleable doctrine that overlaps with the merits. But the permission model would celebrate that state of affairs. Malleable, merits-sensitive stare decisis helps the Justices manage controversial legal transitions based on their understanding of underlying law. And the binding model could simply be infeasible without enforcement. The permission model also points toward novel reforms, including ways of combining both permissions and mandates. Counterintuitively, the best way to strengthen precedent may to make it more of a permission. The permission model may not be the kind of precedent we were looking for, but it usefully informs the mode of precedent we actually have.

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This Article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court’s certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge on a given answer. Each of these two sorts of reasons gives rise to a model form of legal clarity with its own strengths and difficulties. More generally, debates about what type and degree of clarity to require often reflect implicit disagreements about the relevant clarity doctrine’s goals. So by challenging a doctrine’s accepted purposes, reformers can justify changes in clarity doctrines. To show as much, this Article discusses a series of clarity doctrines and illuminates several underappreciated avenues for reform, particularly as to federal habeas corpus, Chevron, qualified immunity, constitutional avoidance, and the rule of lenity. Finally, this Article acknowledges, but also discusses ways of mitigating, several anxieties about clarity doctrines, including worries that major clarity doctrines are too pluralistic, malleable, or awkward.

The Supreme Court's recent decision in Janus resolved a major First Amendment question, but the Court's treatment of precedent is arguably even more important, as Justice Elena Kagan's forceful dissent indicates. In short, the Court held that its own recently expressed misgivings about a precedent contributed to the justifiability of overruling the precedent. This Article explores Janus's implications in light of the Court's apparent adherence to "the doctrine of one last chance," which requires the Court to give advance notice of its willingness to issue disruptive decisions. Aptly enough, the doctrine is Janus-faced in that it is both restraining and empowering. And there are plausible reasons for adhering to at least some version of the doctrine, despite the serious concerns that Kagan has raised.

This Article explores a basic question of precedent formation: When a majority of the Supreme Court cannot agree on a rule of decision, can the Court nonetheless create a precedent? Under the Marks rule, the answer is yes: a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” But that approach shifts costly interpretive burdens to later courts, privileges outlier views among the Justices, and discourages desirable compromises. Instead, Court precedent should form only when a single rule of decision has the express support of at least five Justices. That majority rule would promote decisional efficiency by placing the burden of precedent formation on the “cheapest precedent creators” — namely, the Justices themselves at the time of decision. To support those conclusions, this Article presents the first systematic study of the Marks rule’s operation in appellate courts, including the Supreme Court, the federal circuit courts, and state appellate courts. Lower courts are applying Marks with rapidly increasing frequency, including to construe state court decisions. Yet most appellate citations to the Marks rule involve a relatively small number of fragmented cases. These findings allow courts and scholars to evaluate the rule’s practical operation, as well as the costs and benefits of abandoning it. The link between decisional efficiency and precedent formation also sheds light on a number of broader issues in the law of precedent, including: whether to adhere to the results of fragmented or unexplained rulings, when Justices may legitimately compromise to form a majority, and how lower courts should discipline the Justices’ creation of precedent. But to make progress on these issues, we must first move beyond the Marks rule.

Study of AI’s societal impacts and risks, and its implications for risk assessment and governance, tends to fall into two clusters, separated in time horizon and the anticipated scale of impacts. Since early development of AI there has been intensive speculation over potential emergence of general intelligence far more capable than humans, under terms such as advanced general intelligence (AGI), superintelligence, or the AI singularity. More recently, as actual applications with significant impacts have proliferated, attention has shifted to current and immediately anticipated risks, such as fairness and bias, privacy, autonomy and manipulation, due process, and other concerns. There is, a region of mid-term effects between these two, however – where AI might transform people and societies by vastly reconfiguring capabilities, information, and behavior, while still remaining (mostly) under human control – that receives much less attention. These mid-term effects may be of greatest importance, in terms of the probability and magnitude of potential societal disruptions and the ability to influence these through anticipatory responses. But in contrast to immediate impacts, for which an observable record is available; and to endpoint or singularity issues, which are amenable to deductive reasoning based on stipulated technological characteristics that are assumed to dominate any societal or political conditions in shaping impacts; this mid-range presents serious challenges to assessment and response planning, with few promising tools or methods available. We propose and begin to develop one approach to assessing these mid-term impacts, focused on the actors whose decisions shape the development and application of AI systems; their interests, capabilities, and information; and the strategic interactions that influence their decisions.

Artificial intelligence, or AI, promises to assist, modify, and replace human decision-making, including in court. AI already supports many aspects of how judges decide cases, and the prospect of “robot judges” suddenly seems plausible—even imminent. This Article argues that AI adjudication will profoundly affect the adjudicatory values held by legal actors as well as the public at large. The impact is likely to be greatest in areas, including criminal justice and appellate decision-making, where “equitable justice,” or discretionary moral judgment, is frequently considered paramount. By offering efficiency and at least an appearance of impartiality, AI adjudication will both foster and benefit from a turn toward “codified justice,” an adjudicatory paradigm that favors standardization above discretion. Further, AI adjudication will generate a range of concerns relating to its tendency to make the legal system more incomprehensible, data-based, alienating, and disillusioning. And potential responses, such as crafting a division of labor between human and AI adjudicators, each pose their own challenges. The single most promising response is for the government to play a greater role in structuring the emerging market for AI justice, but auspicious reform proposals would borrow several interrelated approaches. Similar dynamics will likely extend to other aspects of government, such that choices about how to incorporate AI in the judiciary will inform the future path of AI development more broadly.

Fourth Amendment doctrine is attentive to a wide range of interests, including security, informational privacy, and dignity. How should courts reconcile these competing concerns when deciding which searches and seizures are “unreasonable”? Current doctrine typically answers this question by pointing to interest aggregation: the various interests at stake are added up, placed on figurative scales, and compared, with the goal of promoting overall social welfare. But interest aggregation is disconnected from many settled doctrinal rules and leads to results that are unfair for individuals. The main alternative is originalism; but historical sources themselves suggest that the Fourth Amendment calls for new moral reasoning. This Article argues that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” is best understood, at least in large part, as a requirement that police investigation be fair in the sense of being authorized by principles that no rights holder could reasonably reject. This approach is inspired by “contractualist” moral philosophy and has several advantages. It tracks widely held moral intuitions, comports with the Fourth Amendment’s historical meaning, and resonates with underappreciated currents in extant case law. In attending to the perspectives of individuals, contractualism generates rights that are not subject to interest aggregation. At the same time, contractualism suggests a principled way to address new Fourth Amendment questions, consistent with courts’ institutional role. A contractualist approach to Fourth Amendment fairness suggests many ways to refine or reform current doctrine. In terms of refinements, the contractualist approach gives moral content to the notion of “individualized suspicion” by showing when searches and seizures can be justified by a principle of individual responsibility. Contractualism also draws attention to other justifying principles, such as a protection principle, and so explains how and when suspicionless searches and seizures are reasonable. Finally, the contractualist approach identifies areas where current Fourth Amendment doctrine is decidedly unfair and ripe for reform, such as when courts limit rights to avoid diffuse litigation costs, overemphasize “reasonable expectations of privacy,” and ignore the unreasonableness of racial discrimination.

By law, federal judges must swear or affirm that they will "do equal right to the poor and to the rich." This frequently overlooked oath, which I call the "equal right principle," has historical roots dating back to the Bible and entered US law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle's text, context, and history. This Article argues that the equal right principle supplies at least a plausible basis for federal judges to consider substantive economic equality when implementing underdetermined sources of law. There are many implications. For example, the equal right principle suggests that federal courts may legitimately limit the poor's disadvantages in the adjudicative and legislative processes by expanding counsel rights and interpreting statutes with an eye toward economically vulnerable groups. The equal right principle should also inform what qualifies as a compelling or legitimate governmental interest within campaign finance jurisprudence, as well as whether to implement "underenforced" equal protection principles. More broadly, the equal right principle should play a more central role in constitutional culture. The United States is unusual in that its fundamental law is relatively silent on issues of economic equality. The equal right principle can fill that void by providing a platform for legal and public deliberation over issues of wealth inequality. Through judicial confirmation hearings and other forms of public contestation, the equal right principle can help to specify federal judges' legal and moral commitments toward the poor.

How would society react to “the Watcher,” a technology capable of efficiently, unerringly, and immediately reporting the perpetrator of virtually every crime? This Essay treats that speculative question as an opportunity to explore the relationship between governmental surveillance and criminal justice. The resulting argument is unabashedly fictional but draws attention to pressures that may influence the real world. For instance, the Watcher casts doubt on perfect surveillance’s ability to improve the law, supports judicial attentiveness to substantive law when reviewing rules of investigation, and suggests that legislative control might displace prosecutorial discretion. The Watcher also draws attention to the relationship between surveillance and regulatory intricacy, as well as to ways of preserving human mercy within automated criminal justice.

The positive law model maintains that a Fourth Amendment search or seizure occurs if, but only if, a private party could not lawfully perform the conduct that the government actually engaged in. The positive law model thus treats laws applicable to private parties as a ceiling on Fourth Amendment protections. But government action is fundamentally different — and often more deserving of regulation — than similar conduct by private parties. Due to its distinctive capabilities, incentives, and social role, the government often threatens the people’s security in ways that private parties simply do not. Still, we can learn from analogies to private parties without being limited by them. The way to do that, I briefly suggest, is to view privacy-related measures applicable to private parties as presumptively triggering the Fourth Amendment’s prohibition on unreasonable searches. I call this alternative approach the “positive law floor.”