Articles

With Epilogue by Emmanuel Mauleon

Notwithstanding the broad literature on race and constitutional criminal procedure, scholars have rarely engaged the epistemological burdens Fourth Amendment law imposes on Black students and faculty. Those burdens derive from a fundamental and insufficiently acknowledged disjuncture: despite the rights-protecting language in the Fourth Amendment (in particular, its prohibition against “unreasonable searches and seizures”), Fourth Amendment law is, for Black people, a domain of existential violence. It is Fourth Amendment law that determines when and how the police may engage us in our homes, in our cars, at school, and on our streets— and it is Fourth Amendment law that produces and governs the anti-Black border between surveillance and death. This fraught and necrological feature of Fourth Amendment law sets the doctrinal terms on which Black students must learn, and Black faculty must teach, the law. In that regard, the violence Black people encounter in the context of engaging with Fourth Amendment jurisprudence is against the very Black body they occupy. This Article describes that normalized epistemological environment. One might think of the account the Article provides as a pedagogy of the Black body, or more precisely, as an articulation of what the Black body can teach us about the racialized “field of pain and death” Fourth Amendment law produces. That field includes a constitutional archive that requires Black people to learn and teach law through our legally sanctioned disposability. Fourth Amendment law is thus not merely violent in its social effects; it is epistemologically violent—and legal pedagogy is one of the sites where that violence is reproduced.

In Bondi v. VanDerStok, the Supreme Court issued a consequential decision for statutory interpretation. Drawing on law-and-linguistics research, it infused new empiricism into the search for word meanings, introducing a method this Article labels “Linguistic Textualism.” It is incumbent upon the legal community to reckon with Linguistic Textualism, the Article asserts—because if VanDerStok is the future of statutory interpretation, we are in some trouble.

To make that argument, the Article first diagnoses the pathologies of Linguistic Textualism. It chronicles multiple artificial constraints that Linguistic Textualism imposes upon interpreters, including a striking tendency to erase the historical evolution of a statute. This can undermine interpretation of amended statutes, in particular, which now dominate the Court’s docket. Attempting to do better, the Article then develops a competing interpretation of the statute from VanDerStok. Through an increased attention to amendment history, the Article uncovers the untold story of the Gun Control Act of 1968. In so doing, it provides a vivid illustration of why courts should be attentive to the rich, layered nature of statutory law—and it gives a methodological template for how to accomplish that goal.

The result is a comparative interpretive project with numerous insights—both doctrinal and theoretical. It provides a new understanding of the GCA, a statute whose unresolved questions will shape the future of gun control in America. The Article reveals the shortcomings of Linguistic Textualism, an interpretive approach only increasing in prevalence. The Article develops new tools and strategies to better interpret amended statutes—including a proposed “dead-hand canon,” which can resolve the inconsistencies that amendments often produce. And the Article outlines a new principle for assessing interpretive methods—one that offers a useful baseline for interpretive debates. Through these many lessons, the Article aims to help transform VanDerStok into a productive moment for statutory interpretation.

The U.S. Supreme Court is experiencing a visual boom. In a break from its text-based tradition, the Court is increasingly incorporating images directly into its opinions. In the past fifteen years, pictures of prison dormitories, prayer circles, and stolen artwork have graced the pages of the U.S. Reports. Recently, the Court’s visual vocabulary has grown to include a 150-year-old political cartoon, fifty-nine license plate designs, and a series of gun diagrams alongside a gif. Even more, in just the last five years, visuals have started appearing more frequently in the main body of opinions rather than being relegated to appendices.

While this rise in “visual opinions” may seem inevitable in today’s visual age, it raises significant questions about the foundations of judicial authority and the nature of judicial reasoning. But while scholars have extensively analyzed visual advocacy by lawyers, the Court’s own embrace of visual rhetoric—and its implications for the Court and the institution of judicial decisionmaking—has received surprisingly little attention.

This Article explores the Court’s visual practices and their implications for judicial legitimacy. It makes three key contributions. First, drawing on a review of over 400 visual opinions, it provides the first account of the Court’s use of images from the Founding to the present. It finds that while the Court’s use of visuals has accelerated in recent years, its use of visual content finds deep and expansive roots in the nineteenth century. Second, it connects the Court’s visual practices to legitimacy theory, analyzing how visuals reshape the Court’s performance as a principled decisionmaker, impartial decider, and public servant. Visual content can enhance judicial reasoning by clarifying complex concepts and connecting abstract law to concrete reality. But it can also undermine core legitimacy values by compromising analytical rigor, embedding hidden biases, and transforming legal discourse into political performance.

Third, this Article advances a counterintuitive recommendation. If a picture is worth a thousand words, judges may need to write a thousand “more” words when they include pictures. Because visuals invite multiple interpretations and can overwhelm legal reasoning, courts should consider providing enhanced justification when they use images. Rather than letting visuals “speak for themselves,” judges must explicitly explain their relevance, anticipate competing interpretations, and directly confront visual counternarratives. Visual opinions require more explanation, not less.

Should linguistics inform textualism? When legal theories make claims about another discipline’s subject, that discipline is often illuminating: History impacts originalist debates, economics shapes “law and economics” analysis, and psychology imbues behavioral legal studies. Linguistic claims abound in textualist decisions and debates, but linguistics—the scientific study of human language—less often informs these. Now, critics question whether it should.

This Essay defends the relevance of the field of linguistics to the theory, practice, and critique of textualism. We offer examples, including the Supreme Court’s 2025 VanDerStok decision. Our argument implies neither that textualism is the correct interpretive theory nor that linguistics invariably bolsters it. Indeed, linguistics often challenges textualist assumptions and conclusions. The Essay’s claim is simply that for both textualists and their critics, considering—rather than eschewing—linguistics makes discussion more sophisticated and productive.

American constitutional development has long followed cycles of crisis and restoration, resisting linear narratives of progress. This pattern is especially evident in the interplay between Black protest movements and constitutional interpretation, where transformative possibilities emerge during periods of social rupture but are later constrained by institutional restoration. This Essay argues that W.E.B. Du Bois’s 1920 speculative fiction, The Comet, offers a framework for understanding these cyclical dynamics. The short story’s three-part structure—normalcy, rupture, and restoration—reveals how genuine equality surfaces during catastrophic disruption yet proves unsustainable once hierarchical “normalcy” returns. Using interdisciplinary analysis that combines legal theory, historical inquiry, and literary criticism, this Essay traces “comet cycles” within major Black protest movements from abolition to contemporary struggles. It demonstrates that literary imagination can illuminate constitutional dynamics that conventional doctrinal analysis cannot reach.

Specifically, this Essay argues that Black protest movements function both as catalysts of constitutional rupture and as interpreters of constitutional possibility during suspended moments of normalcy. Examining the abolitionist era, the Civil Rights movement, and present-day struggles through Du Bois’s framework highlights how social movements advance foundational promises of liberty and equality while revealing the fragility of constitutional gains. Even radical critiques of constitutional legitimacy often arise because movements have taken these promises seriously, exposing the inadequacy of conventional reform. This approach offers strategic insight for contemporary movements, clarifying when transformative possibilities emerge and how restoration dynamics undermine them. By centering Black lived experiences as integral to constitutional interpretation, this Essay reframes American constitutionalism as shaped fundamentally by those historically excluded from legal discourse, yet central to its most transformative moments.

This Article traces the emergence of text-centric theories of legal interpretation in the early nineteenth century amid an increasingly writing-based legal culture. While many scholars and judges associate textualism with the Founding period’s enactment of written constitutions and innovation in the separation of powers, this Article argues that the first “textualist” turn in legal interpretation crystallized after the Founding and reflected transnational developments. Not until the 1830s through 1850s did certain jurists on both sides of the Atlantic elaborate interpretive theories predicated on understanding a written law as an ordinary linguistic communication, as opposed to being in part declaratory of unwritten principles. This new emphasis on the enacted text reflected the increasingly writing-based legal culture of the early nineteenth century enabled by the industrial revolution in print and communication technologies. Amid this technological change, old textualists believed they were bringing the equivalent of modern steam power to legal interpretation.

Indeed, it was their work from the 1830s through 1850s, not the Founding, that Justice Scalia cited as muses for his project to revive a text-centric “science” of legal interpretation. Scalia’s new textualism, however, differed from old textualism. New textualism emphasizes the public legibility of the enacted text and how that public legibility operates to constrain judicial discretion. Old textualism, by contrast, understood law as a largely technical language and instead promoted a vision of legal interpretation that advanced public ends through non-public means. Old textualists ultimately sought to claim interpretation as the expertise of judges and to reassure skeptics that judges could exercise this expertise objectively—laying groundwork for the rise of judicial supremacy that would follow.

Over the last few decades, uniform rules have come to govern only a fraction of cases in state courts. Instead, pleading standards vary by case type, discovery limits hinge on amount in controversy, and rules flex based on party type, representation status, and other factors. Quietly, tailored procedures have come to dominate state court civil litigation, impacting millions of cases each year—from consumer debt to personal injury to complex commercial.

This Article analyzes the rise of tailored procedures in state courts and the implications for access to justice, separation of powers, and court legitimacy. Through a case study of Arizona’s procedural evolution that draws on an original dataset of over 6,600 administrative and rulemaking orders, I trace how such tailoring developed, create a typology that can serve as a menu of design options for courts, and evaluate tailoring’s tradeoffs. Without transsubstantivity as a rulemaking backstop in state courts, I also propose three new safeguards to ensure that tailored rules maximize benefits and minimize harms: proportional design, reason-giving, and iterative review.

Tailoring, however, is about more than just gains and losses in fairness or accuracy. It is about a profound shift in who makes procedure and the goals it might achieve. As state courts have centralized authority and expanded their use of tailoring, they have displaced local rulemaking and narrowed judicial discretion. As rulemakers have grown more ambitious, they have expanded the values that procedure has traditionally advanced. These shifts raise important questions about who should make what procedure, the relationship between procedure and substance, and the role of courts in society.

After decades of moves towards trade liberalization, trade restrictions are back in vogue. The United States is raising tariffs, escalating tensions with trading partners, and has paralyzed the World Trade Organization’s dispute-settlement system. The continuation of adversarial actions seems assured, with both political parties indicating interest in defending against imports, ongoing calls to “decouple” from China, and President Trump’s penchant for unilateralism.

Against this backdrop of rising trade tensions and weakening international legal constraints, I examine the demand for defensive trade measures and the domestic administrative processes that result in them. I advance a bottom-up perspective that trains attention on the actors that mobilize these processes to enforce “administrative trade remedies,” which I define broadly to include any domestic law that aims to defend domestic industries against imports and is administered by an administrative agency, e.g., antidumping duties or Section 232 national security trade actions. Rather than focus on Congress or the President, this view appreciates the role of firms, workers, and lawyers in mobilizing administrative agencies to enforce, and thereby make, trade law.

I draw on over forty interviews with those involved in administrative trade-remedy processes and original datasets of agency investigations to describe how those who seek and benefit from tariffs choose among a toolkit of remedies. Although tools with greater presidential involvement in the decisionmaking process are receiving increased attention, I find that private actors remain actively engaged in the enforcement of administrative trade remedies. And they continue to prefer the antidumping and countervailing duty process because of its relative insulation from politics (especially the President) and resulting predictability and durability.

A bottom-up view of administrative trade remedies in the United States contributes first to our understanding of trade lawmaking and policy. In addition to highlighting the relevance of private actors and agency processes, the premium that relevant actors place on a process’s perceived distance from politics and predictability helps explain the continuing popularity of such a scheme, as well as the value of consistent agency practice during a time of high political polarization and volatility. This approach can also travel to other countries, where the use of defensive measures is similarly on the rise, or to other areas of U.S. trade law. Second, I contribute to scholarship that seeks to “normalize” trade law. The mixed public-private nature of the trade-remedies enforcement scheme and interviewees’ discussions of the pros and cons of administrative procedures illustrate the benefits of bringing research on “ordinary” areas of domestic law to bear on trade law, and vice versa.

Election administration in the United States is fragmented. Instead of having one uniform system, each state governs elections under distinct rules and hierarchies. Yet, one feature remains consistent among the !fty systems: Each is led by a “chief election official.” Though some states rely on boards, most vest this authority in a single person—what this Article calls a “unitary chief election official.”

The unitary chief election of!cial wields immense power. They enjoy unilateral authority to render decisions affecting voter registration, voting equipment, access to voting, ballot access, ballot measures, election counting and certi!cation, and election official training, among other things. What is seemingly a procedural office can accordingly be used to impact substantive electoral outcomes. Because of this, subversive partisan actors have made increasing attempts over the years to co-opt the position, viewing it as a means to legally sway elections in their party’s favor.

Despite their significance, unitary chief election officials remain relatively underdiscussed in the literature. Questions remain about the precise extent of their authority, as well as what mechanisms exist to ensure that abusive officials can be held to account. This Article therefore makes a first, detailed attempt to answer these questions. To begin, the Article provides a descriptive account of the breadth of powers that the average unitary chief election official enjoys. It draws upon the election codes of eleven states to do this.

Next, the Article considers how to best construct an accountability regime that insulates the office from partisan manipulation. Through the lens of democracy theory, the Article concludes that we should deemphasize electoral accountability, as truly neutral chief election officials must answer to democratic principles rather than popular whims. Furthermore, we should treat ex post forms of accountability, such as lawsuits, as secondary fail-safe options rather than as primary ones. On the other hand, we should channel more resources to ex ante legal and internal modes of accountability. By reframing accountability for unitary chief election officials, this Article offers a path to shielding the office from undue partisan capture and, in turn, strengthening the democratic process.

The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity.

This Article surfaces the understudied and undertheorized private prosecutions of the family regulation system and situates them within the carceral state. Drawing on sources including statutes, legislative history, case law, accounts developed by other scholars, information obtained through records requests, and interviews with practitioners and state officials, it sketches out the legal framework for these prosecutions and traces recurring patterns of use. This study reveals private prosecutions to be a tool of last resort: Private individuals opt to prosecute their loved ones—or even themselves—after the state has failed to meet their needs through other means.

The Article makes two contributions. First, it develops an initial descriptive account of private prosecutions in the family regulation system. Second, the Article builds from that account to develop a theoretical claim. It argues that private prosecution illustrates the state’s decision to operate an expansive carceral state in place of a robust welfare state. Moreover, private prosecution lays bare the central role of private individuals in maintaining and expanding the carceral state, as private prosecutors increase the reach of the carceral apparatus while entrenching its logics. But even as private prosecutions shore up the carceral state, so too do they allow private individuals to extract support from it. As debates around the utility of private prosecution and enforcement across the carceral state continue, private dependency prosecutions offer a reminder. Before evaluating the utility of private prosecution, we must ask its goal: to disrupt the carceral state or to provide immediate relief to some already suffering in its thrall.