Article

The “New” Drug War

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year. The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black. Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.

The public rhetoric concerning drug use has notably changed in recent years. Many policymakers have replaced the punitive, law-and-order narratives of the Old Drug War with progressive, public-health-oriented language, which suggests that the Old Drug War has ended. We, however, caution against such a conclusion. This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public-health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.

Our assessment of these policies demonstrates that the War on Drugs is not over. It has merely been retooled, recalibrated, and reframed. The “New” Drug War may be concealed with public-health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use.

Introduction

Since the 1800s, American policymakers have waged a racist,1 1.andré douglas pond cummings & Steven A. Ramirez, Roadmap for Anti-Racism: First Unwind the War on Drugs Now, 96 Tul. L. Rev. 469, 469–70 (2022) (“The War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans.” (footnotes omitted)); Paul Butler, Chokehold: Policing Black Men 122 (2017) (noting “that ‘the war on drugs’ has been selectively waged against African Americans. . . . For drug crimes, African Americans are about 13 percent of people who do the crime, but about 60 percent of people who do the time.”).Show More costly,2 2.Juhohn Lee, America Has Spent Over a Trillion Dollars Fighting the War on Drugs. 50 Years Later, Drug Use in the U.S. Is Climbing Again, CNBC (June 17, 2021, 1:15 PM), https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-d‌rugs.html [https://perma.cc/9BAL-Y45A].Show More and punitive3 3.Nkechi Taifa, Race, Mass Incarceration, and the Disastrous War on Drugs, Brennan Ctr. for Just. (May 10, 2021), https://www.brennancenter.org/our-work/analysis-opinion/race-mas‌s-incarceration-and-disastrous-war-drugs [https://perma.cc/54XD-6FGH] (explaining how increasingly punitive drug “laws flooded the federal system with people convicted of low-level and nonviolent drug offenses”); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 6–11 (rev. ed. 2020) (detailing how the War on Drugs led to mass incarceration).Show More drug war that characterizes some drug use as morally reprehensible behavior and those who engage in it as deviant criminals.4 4.Taleed El-Sabawi, Defining the Opioid Epidemic: Congress, Pressure Groups, and Problem Definition, 48 U. Mem. L. Rev. 1357, 1390–91 (2018) [hereinafter El-Sabawi, Defining the Opioid Epidemic].Show More The War on Drugs5 5.Michael Tonry, Race and the War on Drugs, 1994 U. Chi. Legal F. 25, 25‒26 (1994) (defining the War on Drugs as an initiative reinforced by the Reagan and Bush Administrations to reduce drug trade and use by means of education and treatment components with much emphasis on law enforcement).Show More myopically focuses on controlling the supply of drugs deemed dangerous and addictive through prohibition and deterring their sale and possession through arrest and incarceration.6 6.Taleed El-Sabawi & Jennifer Oliva, The Influence of White Exceptionalism on Drug War Discourse, 94 Temp. L. Rev. 649, 649 (2022); see David T. Courtwright, A Century of American Narcotic Policy, in 2 Treating Drug Problems 1, 42 (Dean R. Gerstein & Henrick J. Harwood eds., 1992) (“The sense that illicit drug trafficking and use were out of control led to the present war on drugs.”); Mona Lynch, Theorizing the Role of the ‘War on Drugs’ in US Punishment, 16 Theoretical Criminology 175, 178–79 (2012) (describing specific legislation that criminally punishes both possession and sale of drugs based on “their combined medical value, harmfulness to health, and addictive properties”).Show More American government officials’ simplistic justifications for centering drug policy around supply control include their commitment to the notion that people only use drugs because they are available and, once they are no longer available, people will neither initiate nor continue drug use.7 7.Nat’l Rsch. Council, Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us 139 (Charles F. Manski, John V. Pepper & Carol V. Petrie eds., 2001).Show More

Upon superficial examination, limiting access to potentially dangerous drugs sounds like a promising approach to address drug misuse and poisoning problems. A litany of actual evidence, however, suggests that supply control measures steeped in criminal legal theories of deterrence are ineffective at decreasing overdoses and substance use disorders.8 8.See, e.g., Ojmarrh Mitchell, Ineffectiveness, Financial Waste, and Unfairness: The Legacy of the War on Drugs, 32 J. Crime & Just. 1, 7–10 (2009); Evan Wood et al., Impact of Supply-Side Policies for Control of Illicit Drugs in the Face of the AIDS and Overdose Epidemics: Investigation of a Massive Heroin Seizure, 168 Canadian Med. Ass’n J. 165, 168 (2003).Show More This is because those tactics fail to address any of the underlying causes of drug demand, facilitate an unpredictable and ever more dangerous drug supply, and often result in the substitution of one drug for another, more potent drug.9 9.Leo Beletsky & Corey S. Davis, Today’s Fentanyl Crisis: Prohibition’s Iron Law, Revisited, 46 Int’l J. Drug Pol’y 156, 156–58 (2017); see also Johanna Catherine Maclean, Justine Mallatt, Christopher J. Ruhm & Kosali Simon, Economic Studies on the Opioid Crisis: A Review 1, 15, 19 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28067, 2021), https://w‌ww.nber.org/system/files/working_papers/w28067/w28067.pdf [https://perma.cc/FRN9-D7‌WB] (explaining that opioid “overdose deaths rose 9.1 percent from March 2019 to March 2020” despite “policy efforts to address the crisis,” certain prescription drug monitoring programs “lead[] to increased heroin-related crime,” and that other programs addressing OxyContin misuse “spurred development of illicit drug markets”); Meghan Peterson et al., “One Guy Goes to Jail, Two People Are Ready to Take His Spot”: Perspectives on Drug-Induced Homicide Laws Among Incarcerated Individuals, 70 Int’l J. Drug Pol’y 47, 52 (2019) (concluding that drug policies were “not . . . effective in mitigating overdose risk and could induce harm” instead).Show More

Interdiction efforts alone have cost American taxpayers more than a trillion dollars over the last several decades.10 10.Christopher J. Coyne & Abigail R. Hall, Four Decades and Counting: The Continued Failure of the War on Drugs, 811 Cato Inst. Pol’y Analysis, Apr. 2017, at 1, 19, https://www.ca‌to.org/sites/cato.org/files/pubs/pdf/pa-811-updated.pdf [https://perma.cc/LA3Z-VSUU].Show More Federal, state, and local governments spend an estimated 47.9 billion dollars annually on drug enforcement.11 11.Jeffery Miron, The Budgetary Effects of Ending Drug Prohibition, 83 Cato Inst. Tax & Budget Bull., July 23, 2018, https://www.cato.org/tax-budget-bulletin/budgetary-effects-endi‌ng-drug-prohibition [https://perma.cc/WN7F-PRPQ].Show More Despite the substantial funding dedicated to the War on Drugs, American overdose deaths have reached historic levels. According to the Centers for Disease Control and Prevention, the United States suffered a record 107,941 overdose deaths—the highest number of such fatalities ever cataloged in a single calendar year—in 2022.12 12.Merianne R. Spencer, Matthew F. Garnett & Arialdi M. Miniño, Drug Overdose Deaths in the United States, 2002–2022, 491 Nat’l Ctr. Health Stats. Data Brief 1, 1 (Mar. 2024), https://www.cdc.gov/nchs/data/databriefs/db491.pdf [https://perma.cc/5Q7J-4BBR]; Deidre McPhillips, US Drug Overdose Deaths, Fueled by Synthetic Opioids, Hit a New High in 2022, CNN (May 18, 2023, 11:27 AM), https://www.cnn.com/2023/05/18/health/drug-overdose-de‌aths-2022 [https://perma.cc/34SG-S3S7].Show More

The War on Drugs is not only costly. It has failed to mitigate both the escalating drug overdose deaths and the myriad poor health outcomes associated with chaotic drug use.13 13.Sessi Kuwabara Blanchard, The Beginner’s Guide to Harm Reduction, Healthline (Aug. 30, 2021), https://www.healthline.com/health/substance-use/harm-reduction [https://perma.‌cc/KEH6-LRH8] (explaining that substance use is experienced on a spectrum that varies from managed to chaotic use and defining chaotic use as “consumption [that] is no longer bound by self-regulation” where “the negative effects on [an individual’s] life outweigh the original benefits . . . from consuming drugs”).Show More The War on Drugs is also racist.14 14.See, e.g., John Hudak, Biden Should End America’s Longest War: The War on Drugs, Brookings Inst. (Sept. 24, 2021), https://www.brookings.edu/articles/biden-should-end-ame‌ricas-longest-war-the-war-on-drugs/ [https://perma.cc/GCK7-JEAW] (“Despite its dramatic policy failures, the War on Drugs has been wildly successful in one specific area: institutionalizing racism. The drug war was built on a foundation of racism and xenophobia.”).Show More In 2016, one of President Nixon’s top aides admitted that the War on Drugs was motived by Nixon’s desire to subordinate and disenfranchise Black persons and the antiwar left, whom Nixon identified as political enemies.15 15.Dan Baum, Legalize It All: How to Win the War on Drugs, Harper’s Mag. (Apr. 2016), https://harpers.org/archive/2016/04/legalize-it-all/ [https://perma.cc/W73S-PTNX]. Moreover, the harshness of the criminal penalties associated with a drug’s possession have been driven not by the “dangerousness” of the drug so much as the racial characteristics associated with the people who use that substance. Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the “War on Drugs” Was a “War on Blacks,” 6 J. Gender, Race & Just. 381, 396–98 (2002) (explaining that the dramatic federal sentencing disparity between crack and powder cocaine was unjustified from a physiological perspective because each is simply a different form of the same drug and that, instead, the dramatically more harsh criminal penalties that attended to crack cocaine were based on its use association with Black people (and, concomitantly, that the relatively less harsh criminal penalties that attended to powder cocaine were based on its use association with white people)); Brittany Arsiniega, Teresa Cosby, Spencer Richardson & Kylie Berube, Race and Prohibition Movements, 11 Tenn. J. Race, Gender & Soc. Just. 16, 19 (2021) (“Those drugs associated with minorities have been viewed by governmental majorities (and the public at large) as more harmful or dangerous than those consumed by white people and criminalized accordingly. Examples include crack cocaine versus powder cocaine and consumption of opium by smoking (associated with Chinese immigrants) versus oral consumption (associated with white people).” (footnotes omitted)).Show More The War on Drugs is, and always has been, fueled by stereotypical myths, racist beliefs, and a desire for political and societal control of racial minorities and others opposed to failed law and order-driven drug policies.16 16.See, e.g., Helena Hansen, Jules Netherland & David Herzberg, Whiteout: How Racial Capitalism Changed the Color of Opioids in America 36, 59 (2023) [hereinafter Hansen et al., Whiteout] (explaining that “[i]nherent in the effort of . . . policy makers . . . to distinguish licit from illicit drugs is an unspoken racial symbolism of white biology and Black crime” and “[f]or the last fifty years, . . . policy makers have invested heavily in the association between Black and Brown communities and illicit drug use and have used the threat of drugs to ramp up fears about Black and Brown people and to craft increasingly punitive policies that have been effective tools of racial targeting and control”).Show More

Evidenced by the framing of the current overdose crisis as a public health issue rather than a criminal legal problem, some argue that the War on Drugs is on the wane.17 17.Brian Mann, After 50 Years of the War on Drugs, ‘What Good Is It Doing for Us?’, NPR (June 17, 2021, 5:00 AM), https://www.npr.org/2021/06/17/1006495476/after-50-years-of-th‌e-war-on-drugs-what-good-is-it-doing-for-us [https://perma.cc/79UT-CQ2A] (contending that, in response to the current overdose crisis, “some of the most severe policies implemented during the drug war are being scaled back or scrapped altogether” “[i]n many parts of the U.S.,” while admitting that “much of the drug war’s architecture remains intact”).Show More There is no doubt that the rhetoric that drives the drug war has changed in recent years as policymakers have adopted “health-oriented” language to describe what has been popularly characterized as the “opioid overdose crisis.”18 18.Taleed El-Sabawi, The Role of Pressure Groups and Problem Definition in Crafting Legislative Solutions to the Opioid Crisis, 11 Ne. U. L. Rev. 372, 380, 395 (2019) (finding that a health-oriented approach was used by pressure groups during congressional hearings on the opioid crisis from 2014–2016); see also Max Weiss & Michael Zoorob, Political Frames of Public Health Crises: Discussing the Opioid Epidemic in the US Congress, 281 Soc. Sci. & Med., 2021, at 1, 4–7 (describing the steady rise of overdoses as an “opioid-epidemic” and the responses from the U.S. Congress).Show More A common refrain from both policymakers and law enforcement has been: “We cannot arrest our way out of this crisis.”19 19.See, e.g., Nabarun Dasgupta, We Can’t Arrest Our Way Out of Overdose: The Drug Bust Paradox, 113 Am. J. Pub. Health 708, 708 (2023) (explaining that “[i]n speaking with police about preventing overdose, the officers’ common refrain is ‘We aren’t going to arrest our way out of this’”); Press Release, Dick Durbin, Sen., U.S. Senate, Durbin, Duckworth Announce $1.2 Million for Kane County Diversion Program (Dec. 22, 2021), https://www.durbin.sen‌ate.gov/newsroom/press-releases/durbin-duckworth-announce-12-million-for-kane-county-d‌iversion-program [https://perma.cc/ULU7-2EG5] (stating “we can’t arrest our way out of” the overdose crisis); Andrea Cipriano, Rural Sheriffs: ‘We Can’t Arrest Our Way Out of the Opioid Crisis,’ Crime Rep. (Jan. 20, 2021), https://thecrimereport.org/2021/01/20/rural-sheri‌ffs-we-cant-arrest-our-way-out-of-the-opioid-crisis/ [https://perma.cc/NXV9-U5Y3].Show More This change in framing is due, at least in part, to the rampant whitewashing of prescription opioid misuse.20 20.See generally Julie Netherland & Helena B. Hansen, The War on Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 Cult. Med. & Psych. 664 (2016) (maintaining that when people who use drugs are depicted as white, the policy proposals presented are more likely to be public-health-centered than punitive).Show More Moreover, given that Congress has enacted at least two significant pieces of legislation since 2016 to address the crisis that include provisions that are predominantly health-centric,21 21.See generally Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198, 130 Stat. 695 (prescribing training for first responders, additional addiction treatment for veterans and families, expanding the education and prevention policies, and other methods to fight the opioid crisis); Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, Pub. L. No. 115-271, 132 Stat. 3894 (2018) (expanding Medicaid and Medicare provisions “to address the opioid crisis”).Show More perhaps the dominant and most visible political response to the “opioid crisis” was a “[w]ar on [d]rugs [t]hat [w]asn’t.”22 22.Julie Netherland & Helena Hansen, White Opioids: Pharmaceutical Race and the War on Drugs That Wasn’t, 12 Biosocieties 217, 217 (2017).Show More

We nonetheless caution against any conclusion that the War on Drugs has ended. It has not. It has merely been retooled, recalibrated, and reframed by health-centric rhetoric. New policy proposals aimed at addressing the current overdose crisis may appear more public-health-oriented, and we concede that some are,23 23.For example, in 2021, for the first time in history, former Acting Director of the Office of National Drug Control Policy Regina LaBelle included harm reduction (a public health approach to addressing chaotic drug use defined by meeting people where they are and striving to reduce the health harms of drug use) as one of the executive branch’s strategic priorities to address overdose deaths. Press Release, Regina LaBelle, Acting Director, White House Office of Nat’l Drug Control Pol’y, Statement from Acting Director Regina LaBelle on Today’s CDC Overdose Death Data (Oct. 13, 2021), https://www.whitehouse.gov/ondcp/briefing-room/20‌21/10/13/statement-from-acting-director-regina-labelle-on-todays-cdc-overdose-death-data-4/ [https://perma.cc/83DB-URSX].Show More but an insidious re-entrenchment of the punitive approach to drug use walks in lockstep with those highly publicized public health measures.

Part I of this Article provides an overview of the key features of the Old Drug War with an emphasis on the racism endemic to its purposes. Part II enumerates the extravagant failures of the punitive, supply-side-centric Old Drug War, explaining why its tactics ensure an increasingly dangerous and deadly American drug supply. Part III of this Article deploys three categories of recent laws and policies to demonstrate that the United States persists in waging a punitive and predominantly supply-side War on Drugs cloaked in health-oriented rhetoric.

Part III proceeds in three Sections. Section III.A gives an overview of state laws that provide law enforcement with new data and evidence for criminal prosecution through enhanced controlled substance surveillance. While policymakers have couched such surveillance as an effort to improve health outcomes, it has motivated a marked decrease in the prescribing of opioid analgesics and, as a result, driven many patients in legitimate medical need of such prescription drugs to the illicit (and more dangerous) market. Increased surveillance has been accompanied by the highly publicized prosecution of prescribers, a chilling effect on providers, and the neglect and abandonment of patients in chronic and intractable pain. Such patients are frequently labeled as drug-seekers and deviants unworthy of treatment in the American health care system. We further detail how the algorithms purportedly used to quantify patient drug use risks are steeped with racial and gender prejudice and discriminate against individuals with disabilities.

Section III.B delineates and analyzes certain criminal and civil punishment enhancements of the New Drug War. It explains that several states have enacted new criminal laws that make it easier to charge persons with drug-induced homicide (“DIH”) for overdose deaths and posits that the aggressive enforcement of such laws may lead to an increase in drug-related fatalities and disparately impact individuals minoritized as Black. This Section also points to the federal government’s recent use of fentanyl-related product scheduling to enhance the criminal penalties for drug use and distribution. Section III.B concludes by elaborating on the significant civil collateral consequences experienced by individuals who use drugs due to punitive child welfare and drug testing laws and policies.

Section III.C explains how New Drug War policies continue to create obstacles to evidence-based treatment and harm reduction resources for individuals who use drugs. This Section explains that policymakers remain resistant to reducing the numerous and burdensome federal laws and policies that govern access to opioid use disorder (“OUD”) medications—the gold-standard treatment for OUD—and contends that those policies exacerbate the country’s escalating overdose crisis. This Section further details America’s ongoing battles against and opposition to the operation and funding of two specific evidenced-based harm reduction programs that have been proven effective in reducing overdose fatalities and the health and safety harms associated with drug use: syringe services programs and overdose prevention centers.

The three categories of “New” Drug War laws and policies that are showcased in Part III of this article—enhanced surveillance, enhanced criminalization and civil punishment, and ongoing obstacles to treatment and harm reduction—demonstrate that our “New” Drug War is simply an extension of its predecessor disguised by a public health promotional campaign. Simply stated, the popularity of a predominantly punitive, supply-side, law-enforcement-centric drug policy approach persists despite ample evidence that its core tactics are woefully ineffective. Before diving into a discussion about the very familiar characteristics of our “New” Drug War, we turn first to an overview of the old one, which is provided in the following Part.

  1.  andré douglas pond cummings & Steven A. Ramirez, Roadmap for Anti-Racism: First Unwind the War on Drugs Now, 96 Tul. L. Rev. 469, 469–70 (2022) (“The War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans.” (footnotes omitted)); Paul Butler, Chokehold: Policing Black Men 122 (2017) (noting “that ‘the war on drugs’ has been selectively waged against African Americans. . . . For drug crimes, African Americans are about 13 percent of people who do the crime, but about 60 percent of people who do the time.”). ↑
  2.  Juhohn Lee, America Has Spent Over a Trillion Dollars Fighting the War on Drugs. 50 Years Later, Drug Use in the U.S. Is Climbing Again, CNBC (June 17, 2021, 1:15 PM), https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-d‌rugs.html [https://perma.cc/9BAL-Y45A]. ↑
  3.  Nkechi Taifa, Race, Mass Incarceration, and the Disastrous War on Drugs, Brennan Ctr. for Just. (May 10, 2021), https://www.brennancenter.org/our-work/analysis-opinion/race-mas‌s-incarceration-and-disastrous-war-drugs [https://perma.cc/54XD-6FGH] (explaining how increasingly punitive drug “laws flooded the federal system with people convicted of low-level and nonviolent drug offenses”); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 6–11 (rev. ed. 2020) (detailing how the War on Drugs led to mass incarceration). ↑
  4.  Taleed El-Sabawi, Defining the Opioid Epidemic: Congress, Pressure Groups, and Problem Definition, 48 U. Mem. L. Rev. 1357, 1390–91 (2018) [hereinafter El-Sabawi, Defining the Opioid Epidemic]. ↑
  5.  Michael Tonry, Race and the War on Drugs, 1994 U. Chi. Legal F. 25, 25‒26 (1994) (defining the War on Drugs as an initiative reinforced by the Reagan and Bush Administrations to reduce drug trade and use by means of education and treatment components with much emphasis on law enforcement). ↑
  6.  Taleed El-Sabawi & Jennifer Oliva, The Influence of White Exceptionalism on Drug War Discourse, 94 Temp. L. Rev. 649, 649 (2022); see David T. Courtwright, A Century of American Narcotic Policy, in 2 Treating Drug Problems 1, 42 (Dean R. Gerstein & Henrick J. Harwood eds., 1992) (“The sense that illicit drug trafficking and use were out of control led to the present war on drugs.”); Mona Lynch, Theorizing the Role of the ‘War on Drugs’ in US Punishment, 16 Theoretical Criminology 175, 178–79 (2012) (describing specific legislation that criminally punishes both possession and sale of drugs based on “their combined medical value, harmfulness to health, and addictive properties”). ↑
  7.  Nat’l Rsch. Council, Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us 139 (Charles F. Manski, John V. Pepper & Carol V. Petrie eds., 2001). ↑
  8.  See, e.g., Ojmarrh Mitchell, Ineffectiveness, Financial Waste, and Unfairness: The Legacy of the War on Drugs, 32 J. Crime & Just. 1, 7–10 (2009); Evan Wood et al., Impact of Supply-Side Policies for Control of Illicit Drugs in the Face of the AIDS and Overdose Epidemics: Investigation of a Massive Heroin Seizure, 168 Canadian Med. Ass’n J. 165, 168 (2003). ↑
  9.  Leo Beletsky & Corey S. Davis, Today’s Fentanyl Crisis: Prohibition’s Iron Law, Revisited, 46 Int’l J. Drug Pol’y 156, 156–58 (2017); see also Johanna Catherine Maclean, Justine Mallatt, Christopher J. Ruhm & Kosali Simon, Economic Studies on the Opioid Crisis: A Review 1, 15, 19 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28067, 2021), https://w‌ww.nber.org/system/files/working_papers/w28067/w28067.pdf [https://perma.cc/FRN9-D7‌WB] (explaining that opioid “overdose deaths rose 9.1 percent from March 2019 to March 2020” despite “policy efforts to address the crisis,” certain prescription drug monitoring programs “lead[] to increased heroin-related crime,” and that other programs addressing OxyContin misuse “spurred development of illicit drug markets”); Meghan Peterson et al., “One Guy Goes to Jail, Two People Are Ready to Take His Spot”: Perspectives on Drug-Induced Homicide Laws Among Incarcerated Individuals, 70 Int’l J. Drug Pol’y 47, 52 (2019) (concluding that drug policies were “not . . . effective in mitigating overdose risk and could induce harm” instead). ↑
  10.  Christopher J. Coyne & Abigail R. Hall, Four Decades and Counting: The Continued Failure of the War on Drugs, 811 Cato Inst. Pol’y Analysis, Apr. 2017, at 1, 19, https://www.ca‌to.org/sites/cato.org/files/pubs/pdf/pa-811-updated.pdf [https://perma.cc/LA3Z-VSUU]. ↑
  11.  Jeffery Miron, The Budgetary Effects of Ending Drug Prohibition, 83 Cato Inst. Tax & Budget Bull., July 23, 2018, https://www.cato.org/tax-budget-bulletin/budgetary-effects-endi‌ng-drug-prohibition [https://perma.cc/WN7F-PRPQ]. ↑
  12.  Merianne R. Spencer, Matthew F. Garnett & Arialdi M. Miniño, Drug Overdose Deaths in the United States, 2002–2022, 491 Nat’l Ctr. Health Stats. Data Brief 1, 1 (Mar. 2024), https://www.cdc.gov/nchs/data/databriefs/db491.pdf [https://perma.cc/5Q7J-4BBR]; Deidre McPhillips, US Drug Overdose Deaths, Fueled by Synthetic Opioids, Hit a New High in 2022, CNN (May 18, 2023, 11:27 AM), https://www.cnn.com/2023/05/18/health/drug-overdose-de‌aths-2022 [https://perma.cc/34SG-S3S7]. ↑
  13.  Sessi Kuwabara Blanchard, The Beginner’s Guide to Harm Reduction, Healthline (Aug. 30, 2021), https://www.healthline.com/health/substance-use/harm-reduction [https://perma.‌cc/KEH6-LRH8] (explaining that substance use is experienced on a spectrum that varies from managed to chaotic use and defining chaotic use as “consumption [that] is no longer bound by self-regulation” where “the negative effects on [an individual’s] life outweigh the original benefits . . . from consuming drugs”). ↑
  14.  See, e.g., John Hudak, Biden Should End America’s Longest War: The War on Drugs, Brookings Inst. (Sept. 24, 2021), https://www.brookings.edu/articles/biden-should-end-ame‌ricas-longest-war-the-war-on-drugs/ [https://perma.cc/GCK7-JEAW] (“Despite its dramatic policy failures, the War on Drugs has been wildly successful in one specific area: institutionalizing racism. The drug war was built on a foundation of racism and xenophobia.”). ↑
  15.  Dan Baum, Legalize It All: How to Win the War on Drugs, Harper’s Mag. (Apr. 2016), https://harpers.org/archive/2016/04/legalize-it-all/ [https://perma.cc/W73S-PTNX]. Moreover, the harshness of the criminal penalties associated with a drug’s possession have been driven not by the “dangerousness” of the drug so much as the racial characteristics associated with the people who use that substance. Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the “War on Drugs” Was a “War on Blacks,” 6 J. Gender, Race & Just. 381, 396–98 (2002) (explaining that the dramatic federal sentencing disparity between crack and powder cocaine was unjustified from a physiological perspective because each is simply a different form of the same drug and that, instead, the dramatically more harsh criminal penalties that attended to crack cocaine were based on its use association with Black people (and, concomitantly, that the relatively less harsh criminal penalties that attended to powder cocaine were based on its use association with white people)); Brittany Arsiniega, Teresa Cosby, Spencer Richardson & Kylie Berube, Race and Prohibition Movements, 11 Tenn. J. Race, Gender & Soc. Just. 16, 19 (2021) (“Those drugs associated with minorities have been viewed by governmental majorities (and the public at large) as more harmful or dangerous than those consumed by white people and criminalized accordingly. Examples include crack cocaine versus powder cocaine and consumption of opium by smoking (associated with Chinese immigrants) versus oral consumption (associated with white people).” (footnotes omitted)). ↑
  16.  See, e.g., Helena Hansen, Jules Netherland & David Herzberg, Whiteout: How Racial Capitalism Changed the Color of Opioids in America 36, 59 (2023) [hereinafter Hansen et al., Whiteout] (explaining that “[i]nherent in the effort of . . . policy makers . . . to distinguish licit from illicit drugs is an unspoken racial symbolism of white biology and Black crime” and “[f]or the last fifty years, . . . policy makers have invested heavily in the association between Black and Brown communities and illicit drug use and have used the threat of drugs to ramp up fears about Black and Brown people and to craft increasingly punitive policies that have been effective tools of racial targeting and control”). ↑
  17.  Brian Mann, After 50 Years of the War on Drugs, ‘What Good Is It Doing for Us?’, NPR (June 17, 2021, 5:00 AM), https://www.npr.org/2021/06/17/1006495476/after-50-years-of-th‌e-war-on-drugs-what-good-is-it-doing-for-us [https://perma.cc/79UT-CQ2A] (contending that, in response to the current overdose crisis, “some of the most severe policies implemented during the drug war are being scaled back or scrapped altogether” “[i]n many parts of the U.S.,” while admitting that “much of the drug war’s architecture remains intact”). ↑
  18.  Taleed El-Sabawi, The Role of Pressure Groups and Problem Definition in Crafting Legislative Solutions to the Opioid Crisis, 11 Ne. U. L. Rev. 372, 380, 395 (2019) (finding that a health-oriented approach was used by pressure groups during congressional hearings on the opioid crisis from 2014–2016); see also Max Weiss & Michael Zoorob, Political Frames of Public Health Crises: Discussing the Opioid Epidemic in the US Congress, 281 Soc. Sci. & Med., 2021, at 1, 4–7 (describing the steady rise of overdoses as an “opioid-epidemic” and the responses from the U.S. Congress). ↑
  19.  See, e.g., Nabarun Dasgupta, We Can’t Arrest Our Way Out of Overdose: The Drug Bust Paradox, 113 Am. J. Pub. Health 708, 708 (2023) (explaining that “[i]n speaking with police about preventing overdose, the officers’ common refrain is ‘We aren’t going to arrest our way out of this’”); Press Release, Dick Durbin, Sen., U.S. Senate, Durbin, Duckworth Announce $1.2 Million for Kane County Diversion Program (Dec. 22, 2021), https://www.durbin.sen‌ate.gov/newsroom/press-releases/durbin-duckworth-announce-12-million-for-kane-county-d‌iversion-program [https://perma.cc/ULU7-2EG5] (stating “we can’t arrest our way out of” the overdose crisis); Andrea Cipriano, Rural Sheriffs: ‘We Can’t Arrest Our Way Out of the Opioid Crisis,’ Crime Rep. (Jan. 20, 2021), https://thecrimereport.org/2021/01/20/rural-sheri‌ffs-we-cant-arrest-our-way-out-of-the-opioid-crisis/ [https://perma.cc/NXV9-U5Y3]. ↑
  20.  See generally Julie Netherland & Helena B. Hansen, The War on Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 Cult. Med. & Psych. 664 (2016) (maintaining that when people who use drugs are depicted as white, the policy proposals presented are more likely to be public-health-centered than punitive). ↑
  21.  See generally Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198, 130 Stat. 695 (prescribing training for first responders, additional addiction treatment for veterans and families, expanding the education and prevention policies, and other methods to fight the opioid crisis); Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, Pub. L. No. 115-271, 132 Stat. 3894 (2018) (expanding Medicaid and Medicare provisions “to address the opioid crisis”). ↑
  22.  Julie Netherland & Helena Hansen, White Opioids: Pharmaceutical Race and the War on Drugs That Wasn’t, 12 Biosocieties 217, 217 (2017). ↑

  23.  For example, in 2021, for the first time in history, former Acting Director of the Office of National Drug Control Policy Regina LaBelle included harm reduction (a public health approach to addressing chaotic drug use defined by meeting people where they are and striving to reduce the health harms of drug use) as one of the executive branch’s strategic priorities to address overdose deaths. Press Release, Regina LaBelle, Acting Director, White House Office of Nat’l Drug Control Pol’y, Statement from Acting Director Regina LaBelle on Today’s CDC Overdose Death Data (Oct. 13, 2021), https://www.whitehouse.gov/ondcp/briefing-room/20‌21/10/13/statement-from-acting-director-regina-labelle-on-todays-cdc-overdose-death-data-4/ [https://perma.cc/83DB-URSX]. ↑

Internet Technology Companies as Evidence Intermediaries

Search warrants, subpoenas, and other forms of compulsory legal process are essential for legal parties to gather evidence. Internet technology companies increasingly control wide-ranging forms of evidence, yet little is known about how these companies fulfill their compulsory legal obligations. This Article presents an original study of internet technology companies as evidence intermediaries: third-party organizations that control access to evidence routinely sought by legal parties. Drawing on in-depth qualitative interviews with companies’ legal and compliance staff and with law enforcement agents, I show how company processes for responding to search warrants cannot be neatly categorized within the existing literature’s dichotomy of cooperation or resistance. Rather, the responses consist of makeshift measures that companies have developed to manage predicaments arising from the imprecise or impracticable wording of warrants. These measures can affect the evidence that is ultimately available for use in legal proceedings. They can also untether the scope of searches—as they are carried out—from the procedures of the Fourth Amendment. This Article contends that, because judicial officers are likely ill-equipped to oversee problematic company practices, a variety of institutional interventions to supplement existing court oversight of search procedure should be considered.

Introduction

Legal actors depend on forms of compulsory legal process to gather evidence, including information from internet technology companies such as Google, Meta, X (formerly Twitter), and Apple. In 2022, Google and Meta alone received over 230,000 search warrants, subpoenas, and other U.S. compulsory demands.1 1.See Government Requests for User Data, Meta, https://transparency.fb.com/data/governm‌ent-data-requests/ [https://perma.cc/SWT6-NA5R] (last visited Apr. 10, 2024) (data showing 125,877 legal process requests received by Meta in the United States in 2022); Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/over‌view [https://perma.cc/QAA7-PLVH] (last visited Apr. 10, 2024) (data showing 107,306 legal process requests received by Google in the United States in 2022).Show More These are nearly all third-party process demands, meaning that the recipient companies are not parties to the underlying disputes. Rather, the companies receive many such demands because their business operations generate evidence relevant to nearly every form of conduct that might give rise to an investigation or legal dispute. For example, congressional committees have subpoenaed companies to obtain social media data related to Russian interference in the 2016 elections.2 2.Aaron R. Cooper, Congressional Surveillance, 70 Am. U. L. Rev 1799, 1801 (2021).Show More Regulatory agencies submit subpoenas and civil investigative demands to internet technology companies for information about subscribers who have engaged in fraud or been victims of deceit.3 3.E.g., Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment 140–41 (2007); Rory Van Loo, The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance, 72 Vand. L. Rev. 1563, 1590, 1627 (2019); Andrew Keane Woods, Against Data Exceptionalism, 68 Stan. L. Rev. 729, 776–77 (2016).Show More Litigants in both civil and criminal cases have sought photographs, social media postings, and other forms of data to gather information about witnesses.4 4.See, e.g., Rebecca Wexler, Privacy as Privilege: The Stored Communications Act and Internet Evidence, 134 Harv. L. Rev. 2721, 2738–39 (2021); Joshua A.T. Fairfield & Erik Luna, Digital Innocence, 99 Cornell L. Rev. 981, 1076 (2013); Jane Bambauer, Other People’s Papers, 94 Tex. L. Rev. 205, 239 (2015); Marc J. Zwillinger & Christian S. Genetski, Criminal Discovery of Internet Communications under the Stored Communications Act: It’s Not a Level Playing Field, 97 J. Crim. L. & Criminology 569, 571 (2007); Steven S. Gensler, Special Rules for Social Media Discovery?, 65 Ark. L. Rev. 7, 9 n.7, 12–13 n.18 (2012).Show More And perhaps most frequently, law enforcement agents seek evidence from internet technology companies regarding suspects’ and victims’ identities, communications, and conduct.5 5.See, e.g., Slobogin, supranote 3, at 141; Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan. L. Rev. 99, 147‒48 (2018); Anne E. Boustead, Police, Process, and Privacy: Three Essays on the Third Party Doctrine 40 (Aug. 2016) (Ph.D. dissertation, Pardee RAND Graduate School) (on file with RAND Corp.); Am. Bar Ass’n, ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records 2–3 (3d ed. 2013).Show More

Despite the volume and importance of third-party legal process directed at internet technology companies, little is known about how these companies actually undertake the work of processing such demands. To be sure, scholars are aware of the importance of these actors as “evidence intermediaries,” which I define as third-party organizations that control access to evidence routinely sought by legal parties. Scholars have paid particular attention to these companies’ role in generating and controlling access to information about people, places, and events.6 6.Jennifer Daskal, The Un-Territoriality of Data, 125 Yale L.J. 326, 328 (2015) [hereinafter Daskal, Un-Territoriality]; Woods, supra note 3, at 731; Paul M. Schwartz, Legal Access to the Global Cloud, 118 Colum. L. Rev. 1681, 1700 (2018); Ian Samuel, The New Writs of Assistance, 86 Fordham L. Rev. 2873, 2884 (2018); Aziz Z. Huq & Rebecca Wexler, Digital Privacy for Reproductive Choice in the Post-Roe Era, 98 N.Y.U. L. Rev. 555, 560 (2023); Anne E. Boustead, Hoover Inst., Aegis Series Paper No. 1802, Small Towns, Big Companies: How Surveillance Intermediaries Affect Small and Midsize Law Enforcement Agencies 24 (2018). For implications for defendants, overseas governments, and international bodies seeking evidence, see Wexler, supra note 4, at 2738–39; Alexa Koenig, Keith Hiatt & Khaled Alrabe, Access Denied: The International Criminal Court, Transnational Discovery, and the American Servicemembers Protection Act, 36 Berkeley J. Int’l L. 1, 25 (2018); Kate Westmoreland & Gail Kent, International Law Enforcement Access to User Data: A Survival Guide and Call for Action, 13 Canadian J.L. & Tech. 225, 227 (2015).Show More For example, a growing body of literature examines the information-centralizing effect of the largest companies—which have vast numbers of users and extensive data from and about those users7 7.E.g., Jon D. Michaels, All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 Calif. L. Rev. 901, 908 (2008) [hereinafter Michaels, All the President’s Spies]; Jon D. Michaels, Deputizing Homeland Security, 88 Tex. L. Rev. 1435, 1435–36 (2010) [hereinafter Michaels, Deputizing Homeland Security]; Niva Elkin-Koren & Eldar Haber, Governance by Proxy: Cyber Challenges to Civil Liberties, 82 Brook. L. Rev. 105, 112–13 (2016).Show More—as well as those companies’ capacity to constrain evidence access.8 8.E.g., Rozenshtein, supra note 5, at 105; Kristen E. Eichensehr, Digital Switzerlands, 167 U. Pa. L. Rev. 665, 712–13 (2019); see also Avidan Y. Cover, Corporate Avatars and the Erosion of the Populist Fourth Amendment, 100 Iowa L. Rev. 1441, 1445 (2014) (arguing that service providers cannot serve a government-checking function because they have vested interests in cooperating with the government); Developments in the Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1722–23 (2018) [hereinafter Developments—More Data] (explaining how technology companies exercise large amounts of discretion in handling law enforcement requests for information, including by minimizing capacity to respond and slowing down response times).Show More However, with few exceptions,9 9.See Orin S. Kerr, The Fourth Amendment Limits of Internet Content Preservation, 65 St. Louis U. L.J. 753, 755 (2021); Christopher Soghoian, The Spies We Trust: Third Party Service Providers and Law Enforcement Surveillance 2 (July 15, 2012) (Ph.D. dissertation, Indiana University) (ProQuest); William A. Carter & Jennifer C. Daskal, Ctr. for Strategic & Int’l Stud., Low-Hanging Fruit: Evidence-Based Solutions to the Digital Evidence Challenge 18–19 (2018); Sean E. Goodison, Robert C. Davis & Brian A. Jackson, RAND Corp., Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence 10 (2015); Michael Vermeer, Dulani Woods & Brian Jackson, RAND Corp., Identifying Law Enforcement Needs for Access to Digital Evidence in Remote Data Centers 2 (2018).Show More scholars have paid little attention to the core work of the evidence mediating that internet technology companies now undertake: how company staff review demands for evidence, determine what material is responsive, and segregate and produce that material to the demanding party.

This omission is problematic. Current academic accounts focus on companies’ highly visible efforts to resist or cooperate with government officials’ compulsory demands, such as through litigation against court orders or efforts to encrypt communication services.10 10.Rozenshtein, supra note 5, at 104‒05, 115‒22; Eichensehr, supra note 8, at 667‒68, 677‒79; Cover, supra note 8, at 1469‒74, 1479, 1481‒84; Developments—More Data, supra note 8, at 1722–23; Michaels, All the President’s Spies, supra note 7, at 908; Michaels, Deputizing Homeland Security, supra note 7, at 1435–36; Elkin-Koren & Haber, supra note 7, at 112–13.Show More Moreover, consistent with a focus on companies’ publicized activities, existing accounts assume that companies’ everyday practices in responding to routine law enforcement evidence demands also reflect a deliberately chosen orientation toward either cooperation or resistance.11 11.E.g., Rozenshtein, supra note 5, at 105 (describing a contentious relationship between internet technology companies and law enforcement as the “new normal”). For a critique, see Developments—More Data, supranote 8, at 1724–29.Show More The focus of existing literature on companies’ efforts to obstruct or assist law enforcement overlooks an antecedent problem that companies must navigate: understanding what law enforcement is actually asking of the company.

Internet technology companies represent only half of third-party compulsory legal process. On the other side of this process, law enforcement officers must compose a formal set of directives that would putatively require a company to produce evidence. How agents compose these evidence demands affects how company staff identify and produce that evidence. How those companies actually respond to such directives, in turn, shapes how evidence seekers compose future demands. The highly interrelated character of compulsory legal process suggests that an understanding of companies’ roles as evidence intermediaries must account for the two-sided nature of the legal process task, both as a matter of practice and as a matter of theory.

This Article addresses both these empirical and theoretical requirements. It presents findings from an in-depth interview study that affords substantial insight into internet technology companies’ roles as evidence intermediaries for data sought through search warrants. The study involved forty-seven semi-structured interviews with two groups of hard-to-access subjects: company legal and compliance staff responsible for reviewing search warrants and law enforcement investigators and prosecutors responsible for preparing them.

Based on an analysis of these data, I show that in the routine, everyday processing of search warrants, company staff are oriented chiefly toward expedience in processing warrants and only secondarily toward assisting or resisting government efforts to acquire evidence. Indeed, my data indicate that investigators and prosecutors often do not prepare search warrants in ways that present the responding company with a choice among actions readily distinguishable as efforts to either facilitate or frustrate agents’ access to evidence.

Theoretically, this Article develops the concept of “knowledge misalignment” to explain these findings. Knowledge misalignment arises when the distribution of necessary knowledge among individuals and organizations undertaking a joint task is misaligned with regard to the parts of the task for which each party is responsible. In the context of search warrants for internet evidence, law enforcement agents are well acquainted with the facts of an underlying case, but they often lack the knowledge of the company’s operations necessary to compose warrant language that precisely identifies the desired data. This disconnect arises because internet technology companies can easily modify their product and service offerings and thus can collect and store a wide variety of changing data types. As a result, law enforcement agents preparing search warrants often describe desired evidence in terms that reflect incorrect, informal, or outdated understandings of the company’s data holdings. The task of interpreting and narrowing imprecise and impractically broad directives then falls to the company staff executing the demand, who may know well what kinds of data their company has but know little about the needs of the underlying investigation beyond what can be inferred from the language of the search warrant.

To manage the task of interpreting and narrowing imprecise and impractically broad warrant directives, company staff use a set of interpretive and technological coping practices. These practices sometimes result in staff producing additional evidence not called for by the warrant, or failing to produce evidence called for by the warrant. Because these coping practices can displace the terms of search warrants as the measure by which company staff determine the scope of the searches carried out, these practices influence what kinds of evidence, and how much of it, is ultimately available for use in legal proceedings.

Drawing on these insights, this Article also identifies two important implications for legal institutions. First, it identifies a worrisome potential consequence of the practices that companies use to manage knowledge misalignment: these practices can untether the scope of searches, as they are carried out, from the procedures of the Fourth Amendment. Analysis of interview data reveals that when company staff interpret what data are sought in a warrant with a view toward making the production of responsive data a manageable task, they tend to reframe the boundaries of the production in ways that foreground quantitative organizational criteria within their knowledge (e.g., dates, numbers of accounts, data size), rather than the circumstances of the investigation as reflected in the judicially approved language of the warrant. Over time, the production of evidence in response to search warrants may be shaped more by evidence intermediaries’ application of these quantitative organizational criteria than an analysis of probable cause that is consistent with the Fourth Amendment.

Second, this Article raises substantial questions about the capacity of our current adversarial system—dependent on judicial oversight of search warrants—to address the knowledge misalignment that underlies potentially problematic company practices. Given that judicial officers are no better informed about the operations of internet technology companies than law enforcement agents, it is difficult to see how resource-constrained judicial officers could acquire an understanding of the data holdings, technical architecture, and production practices of widely ranging businesses that would be necessary to effectively oversee the search warrant response process. All of this points to the necessity of institutional intervention to supplement judicial oversight in individual cases.

This Article proceeds in four Parts. Part I defines the concept of evidence intermediaries and shows how internet technology companies are similar to and different from older evidence intermediaries such as banks, hospitals, and telecommunications companies. Internet technology companies are similar in that they, like other evidence intermediaries, provide centralized access points to evidence. However, these companies are also distinguishable because they collect broader swaths of data types that change more frequently, they are more opaque to outsiders seeking evidence, and they receive evidentiary demands across a greater variety of cases.

In Part II, I present the design of the interview study that I conducted to examine how internet technology companies process third-party search warrants from law enforcement agencies. Section II.A explains why in-depth interviews with two sets of actors—legal and compliance staff for internet technology companies and law enforcement investigators and prosecutors—are necessary to understand how third-party search procedure for internet evidence works in practice. Sections II.B and II.C summarize the procedures that I used to sample, recruit, and interview respondents and to increase the reliability of the interview data, given that both sets of respondents were reluctant to speak about a sensitive topic that has been the subject of substantial public scrutiny. Section II.D reports what both company and law enforcement respondents emphasized during the interviews: while companies often provide useable evidence in response to search warrants, they encounter uncertainties in understanding what a search warrant is seeking. In response to these uncertainties, companies may end up producing evidence not called for by a warrant and withholding evidence that is called for by a warrant.

In Part III, I develop the concept of knowledge misalignment as a diagnosis of a core informational problem in third-party compulsory legal process. Drawing on organizational theory and interview data, I argue that two types of knowledge misalignment complicate company responses to search warrants. Linguistic misalignment occurs when search warrants describe the sought-after data in terms that do not align with the data that the company holds or the internal company language used to describe those data. Substantive misalignment occurs when company staff must reframe search warrant directives into tasks tractable within the constraints of the company’s dedicated resources, without knowledge of the circumstances of the investigation or the legal elements that must ultimately be proven in court. I then explain the four types of practices that companies may use to manage knowledge misalignment: acquisition of information about underlying investigations, reconstruction of the language of compulsory demands, standardization of company staff interpretations of recurring search warrant language, and insulation of company knowledge. While these practices allow companies to manage knowledge misalignment, they also change the nature and quantity of evidence ultimately available to legal parties.

In Part IV, I turn to the institutional implications of these insights. I first explain how the company practices described in my data tend to untether the scope of searches—as they are carried out—from the procedures of the Fourth Amendment. Due to knowledge misalignment, companies usually do not know the facts about the underlying case that gave rise to a given process demand. Thus, when company staff interpret what data are sought in a warrant with a view toward making the production of responsive data a manageable task, they tend to reframe the boundaries of the production in ways that favor handing over routinely produced types of data, often within quantitative limits set by internal company standards. The scope of the search carried out is thus determined not by case-specific assessment of probable cause as determined by a judge and conveyed in the language of the search warrant but rather by makeshift efforts on the part of company staff to apply quantitative organizational limits to search production.

I then argue that judicial officers are likely ill-equipped to oversee the kinds of company practices revealed by the interview data. Similarly to law enforcement agents, judicial officers currently lack the knowledge of internet company data holdings and data production practices that would be necessary to detect and redress the displacement of search warrant directives with companies’ standardized internal protocols. Accordingly, I argue for consideration of multiple institutional interventions to supplement judicial oversight.

  1.  See Government Requests for User Data, Meta, https://transparency.fb.com/data/governm‌ent-data-requests/ [https://perma.cc/SWT6-NA5R] (last visited Apr. 10, 2024) (data showing 125,877 legal process requests received by Meta in the United States in 2022); Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/over‌view [https://perma.cc/QAA7-PLVH] (last visited Apr. 10, 2024) (data showing 107,306 legal process requests received by Google in the United States in 2022). ↑
  2.  Aaron R. Cooper, Congressional Surveillance, 70 Am. U. L. Rev 1799, 1801 (2021). ↑
  3.  E.g., Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment 140–41 (2007); Rory Van Loo, The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance, 72 Vand. L. Rev. 1563, 1590, 1627 (2019); Andrew Keane Woods, Against Data Exceptionalism, 68 Stan. L. Rev. 729, 776–77 (2016). ↑
  4.  See, e.g., Rebecca Wexler, Privacy as Privilege: The Stored Communications Act and Internet Evidence, 134 Harv. L. Rev. 2721, 2738–39 (2021); Joshua A.T. Fairfield & Erik Luna, Digital Innocence, 99 Cornell L. Rev. 981, 1076 (2013); Jane Bambauer, Other People’s Papers, 94 Tex. L. Rev. 205, 239 (2015); Marc J. Zwillinger & Christian S. Genetski, Criminal Discovery of Internet Communications under the Stored Communications Act: It’s Not a Level Playing Field, 97 J. Crim. L. & Criminology 569, 571 (2007); Steven S. Gensler, Special Rules for Social Media Discovery?, 65 Ark. L. Rev. 7, 9 n.7, 12–13 n.18 (2012). ↑
  5.  See, e.g., Slobogin, supra note 3, at 141; Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan. L. Rev. 99, 147‒48 (2018); Anne E. Boustead, Police, Process, and Privacy: Three Essays on the Third Party Doctrine 40 (Aug. 2016) (Ph.D. dissertation, Pardee RAND Graduate School) (on file with RAND Corp.); Am. Bar Ass’n, ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records 2–3 (3d ed. 2013). ↑
  6.  Jennifer Daskal, The Un-Territoriality of Data, 125 Yale L.J. 326, 328 (2015) [hereinafter Daskal, Un-Territoriality]; Woods, supra note 3, at 731; Paul M. Schwartz, Legal Access to the Global Cloud, 118 Colum. L. Rev. 1681, 1700 (2018); Ian Samuel, The New Writs of Assistance, 86 Fordham L. Rev. 2873, 2884 (2018); Aziz Z. Huq & Rebecca Wexler, Digital Privacy for Reproductive Choice in the Post-Roe Era, 98 N.Y.U. L. Rev. 555, 560 (2023); Anne E. Boustead, Hoover Inst., Aegis Series Paper No. 1802, Small Towns, Big Companies: How Surveillance Intermediaries Affect Small and Midsize Law Enforcement Agencies 24 (2018). For implications for defendants, overseas governments, and international bodies seeking evidence, see Wexler, supra note 4, at 2738–39; Alexa Koenig, Keith Hiatt & Khaled Alrabe, Access Denied: The International Criminal Court, Transnational Discovery, and the American Servicemembers Protection Act, 36 Berkeley J. Int’l L. 1, 25 (2018); Kate Westmoreland & Gail Kent, International Law Enforcement Access to User Data: A Survival Guide and Call for Action, 13 Canadian J.L. & Tech. 225, 227 (2015). ↑
  7.  E.g., Jon D. Michaels, All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 Calif. L. Rev. 901, 908 (2008) [hereinafter Michaels, All the President’s Spies]; Jon D. Michaels, Deputizing Homeland Security, 88 Tex. L. Rev. 1435, 1435–36 (2010) [hereinafter Michaels, Deputizing Homeland Security]; Niva Elkin-Koren & Eldar Haber, Governance by Proxy: Cyber Challenges to Civil Liberties, 82 Brook. L. Rev. 105, 112–13 (2016). ↑
  8.  E.g., Rozenshtein, supra note 5, at 105; Kristen E. Eichensehr, Digital Switzerlands, 167 U. Pa. L. Rev. 665, 712–13 (2019); see also Avidan Y. Cover, Corporate Avatars and the Erosion of the Populist Fourth Amendment, 100 Iowa L. Rev. 1441, 1445 (2014) (arguing that service providers cannot serve a government-checking function because they have vested interests in cooperating with the government); Developments in the Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1722–23 (2018) [hereinafter Developments—More Data] (explaining how technology companies exercise large amounts of discretion in handling law enforcement requests for information, including by minimizing capacity to respond and slowing down response times). ↑
  9.  See Orin S. Kerr, The Fourth Amendment Limits of Internet Content Preservation, 65 St. Louis U. L.J. 753, 755 (2021); Christopher Soghoian, The Spies We Trust: Third Party Service Providers and Law Enforcement Surveillance 2 (July 15, 2012) (Ph.D. dissertation, Indiana University) (ProQuest); William A. Carter & Jennifer C. Daskal, Ctr. for Strategic & Int’l Stud., Low-Hanging Fruit: Evidence-Based Solutions to the Digital Evidence Challenge 18–19 (2018); Sean E. Goodison, Robert C. Davis & Brian A. Jackson, RAND Corp., Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence 10 (2015); Michael Vermeer, Dulani Woods & Brian Jackson, RAND Corp., Identifying Law Enforcement Needs for Access to Digital Evidence in Remote Data Centers 2 (2018). ↑
  10.  Rozenshtein, supra note 5, at 104‒05, 115‒22; Eichensehr, supra note 8, at 667‒68, 677‒79; Cover, supra note 8, at 1469‒74, 1479, 1481‒84; Developments—More Data, supra note 8, at 1722–23; Michaels, All the President’s Spies, supra note 7, at 908; Michaels, Deputizing Homeland Security, supra note 7, at 1435–36; Elkin-Koren & Haber, supra note 7, at 112–13. ↑

  11.  E.g., Rozenshtein, supra note 5, at 105 (describing a contentious relationship between internet technology companies and law enforcement as the “new normal”). For a critique, see Developments—More Data, supra note 8, at 1724–29. ↑

A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary

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.

Introduction

What is the law of the United States? Consider the following examples, all from the Supreme Court’s last Term:

  • After receiving a skeptical oral argument question from Justice Thomas, advocate Paul Clement agreed that “I wouldn’t be making this argument in this case to you” and pivoted to a different rationale “under your”—that is, Justice Thomas’s—“jurisprudence.” Clement then discussed Justice Thomas’s personal views in detail, concluding: “[T]his is a case where your own jurisprudence would give you the same answer, I think, as a majority of the court . . . .”1 1.Transcript of Oral Argument at 32, Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (No. 20-1573); see also Transcript of Oral Argument at 7, SEC v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859) (Justice Sotomayor inviting a lawyer to address Justice Thomas’s distinctive jurisprudence).Show More
  • In another oral argument, Chief Justice Roberts noted that the U.S. Solicitor General’s position defied the practice of “those of us who were on the D.C. Circuit.” Justice Kavanaugh agreed, responding to the idea that the U.S. Court of Appeals for the D.C. Circuit was “not paying attention to the text” by asserting: “Yeah, we did.” And, when Justice Jackson expressed similar skepticism, Justice Kagan noted: “Seems to be a kind of D.C. Circuit cartel,” to which Justice Jackson responded: “It is. It is.”2 2.Transcript of Oral Argument at 35, 55, 66, United States v. Texas, 143 S. Ct. 1964 (2023) (No. 22-58).Show More
  • Just a few years after affirmative action’s critics became “greater now in number on the Court,” six Justices held that race-conscious university admissions practices violate the Equal Protection Clause. These events, Justice Sotomayor argued in dissent, fostered “suspicions that ‘bedrock principles are founded . . . in the proclivities of individuals’ on this Court, not in the law.”3 3.Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also infra note 171 (collecting sources).Show More

These examples may seem like aberrations, embarrassments, or worse. But they are best understood as clues. They help us to see what is normally invisible: to be a judge, particularly a Supreme Court Justice,4 4.Justices are distinctively situated in part because their personal rules are mostly unchecked by the rules of other jurists. See infra text accompanying note 106.Show More is to be a law unto oneself.5 5.Being “a law unto oneself” captures both freedom from shared principles and personal adherence to genuine rules. For the phrase’s biblical origin, see Romans 2:14.Show More

To bear out that claim, this Article develops a new way of understanding the nature of law.6 6.See Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 860 & n.224 (2023) (outlining “personal positivism”).Show More In brief, each judge’s publicly known rules of decision can be viewed as the law for that jurist and, therefore, part of the overall law of the legal system.7 7.Regarding my focus on judges, see infra note 37 and infra Section II.B.Show More This “personal positivism” differs from the canonical positivism of H.L.A. Hart because it grounds the content of the law in the potentially distinctive views of each official, rather than in a consensus practice among officials.8 8.See H.L.A. Hart, The Concept of Law 108, 116 (2d ed. 1994). For other positivist rejections of Hart’s focus on consensus, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325, 1348–50 (2018); infra notes 95, 104.Show More Figuratively put, the conventional view is of the law as a monolith, whereas I want to describe the law as a mosaic.

The importance of identifying the law goes far beyond jurisprudential debates. After the recent spates of judicial appointments by Presidents Trump and Biden, the U.S. legal system is newly riven by methodological and ideological disagreement.9 9.See, e.g., Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1408 (2021) (discussing increases in partisan en banc activity).Show More There are now two distinct groups of U.S. judges, each with its own commitments, heroes, and fissures.10 10.Changes at the Supreme Court have more to do with “party sorting” than “polarization,” in that party affiliation perfectly tracks ideology even if the gap between left and right hasn’t grown. See Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 125–26 (2021); see also Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 257–61 (2021) (providing evidence of federal judicial polarization).Show More In the face of that fractured reality, efforts to cast the law as shared and unitary are inapt. Yet judges and scholars persist in doing so, following a jurisprudential path that allows for grand claims but little progress.

Take any number of major decisions in recent years. When considering whether to overrule Roe v. Wade,11 11.410 U.S. 113 (1973).Show More transform administrative law,12 12.West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).Show More strengthen Second Amendment rights,13 13.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).Show More or whatever else, how do judges, advocates, and lay observers ascertain the law? Again, Hartian positivism begins by asking about consensus practices among officials.14 14.See Hart, supra note 8, at 108.Show More But consensus practices cannot answer a host of contested questions. The upshot is that there can be almost no determinate law in contested cases. The Justices must instead be left with vast and unchanging discretion—year in and year out.15 15.See infra text accompanying notes 62, 132 (collecting sources).Show More

But that, too, would be wrong. The Justices regularly abide by publicly known rules and so do not act like policymaking legislators. Sophisticated observers are intimately familiar with the individual records of each justice, and advocates pitch their cases accordingly.16 16.See Re, supra note 6, at 845.Show More Moreover, anyone familiar with the U.S. legal system understood that replacing Ruth Bader Ginsburg with Amy Coney Barrett instantly affected legal practice as well as the authority of various legal sources. In short, people unencumbered by jurisprudence routinely act as though there is a lot of determinate law, even in cases at the Supreme Court. It’s just that that law is substantially personalized.

None of this is to insist that there is just one right way to understand the law or its nature.17 17.Relatedly, I sometimes offer alternative theories or backup positions. See, e.g., infra note 55 (outlining a relatively moderate “personalized positivism”).Show More Jurisprudential thinkers frequently purport to identify a “general” theory of law that assertedly applies to most or all legal systems. I adopt a more complex meta-jurisprudential stance. At the outset, I defend personal positivism as a plausible general theory of the law. And I further argue that personal positivism has significant advantages over other approaches to general jurisprudence, including Hartian positivism. At the same time, I recognize that rival theories of law capture different truths. The answer to the question “What is law?” should accordingly turn on the question’s context and purpose.18 18.See infra Section I.A (adopting a pragmatic stance toward meta-jurisprudence); cf. Hart, supra note 8, at 241 (Hart describing his own and Dworkin’s differing “conceptions of legal theory” as distinct “enterprises” that may not conflict).Show More In a legal system characterized by judicial uniformity, or when trying to get the gist of how a legal system operates, it could make sense to follow Hart in starting with consensus practices.19 19.See infra text accompanying note 130. A loose analogy: Newtonian physics is fundamentally incorrect, and yet, for most people, far more useful than relativistic physics—a superior theory that is itself still incomplete.Show More Today, however, the realities of the U.S. legal system make personal positivism indispensable.20 20.Personal positivism could be recast as a local jurisprudential theory, that is, as a contingent account of the law as it exists within a specific kind of society. Yet local and general jurisprudential claims are related: if the United States is a central instance of a legal system and Hart’s account is inapt in that specific context, then so much the worse for its general jurisprudential appeal.Show More

To see the distinctive, even urgent importance of viewing the U.S. legal system through the lens of personal positivism, consider three interrelated challenges. First is the prospect of cynicism: especially after recent decisions like Dobbs v. Jackson Women’s Health Organization,21 21.142 S. Ct. 2228 (2022).Show More many observers have suggested that constitutional law largely amounts to politics.22 22.See, e.g., Cary C. Franklin, Religious Liberty for Some, Jotwell (Jan. 30, 2023), https://co‌nlaw.jotwell.com/politics-all-the-way-down/ [https://perma.cc/YRL5-7HJT] (discussing religious liberty case law in terms of “the fact that it’s politics all the way down” and that “the Court is engaged in a political project”); Joseph Fishkin & William E. Forbath, Make Progressive Politics Constitutional Again, Bos. Rev. (June 23, 2022), https://www.bostonrevi‌ew.net/forum/make-progressive-politics-constitutional-again/ [https://perma.cc/2B99-AX‌HF] (discussing “the right’s decisive politicization of the courts”); James F. McHugh & Lauren Stiller Rikleen, The Politicization of SCOTUS Threatens Its Legitimacy, Bloomberg L. (June 30, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/the-politicization‌-of-scotus-threatens-its-legitimacy [https://perma.cc/A5KP-M9WX] (describing “the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas”). Similar ideas of course have a deep intellectual history. See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5–6, 32 (1984).Show More Second is the question of reform: if constitutional law is just policymaking, then the Court as we know it should probably be scrapped—as commentators have also suggested.23 23.See infra note 204.Show More Third is the asserted hegemony of originalism, which now guides most Justices24 24.See Henry Gass, Originalism Moves from Theory to High Court. What That Means for US., Christian Sci. Monitor (Dec. 21, 2021), https://www.csmonitor.com/USA/Justice/2021/1‌221/Originalism-moves-from-theory-to-high-court.-What-that-means-for-US [https://perma.‌cc/6C6X-YHWQ]; Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (Justice Alito calls himself a “practical originalist”).Show More: is originalism “our law,” and, if so, what are its demands on conscientious legal actors?25 25.Cf. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015).Show More Personal positivism casts each of these challenges in a new and more favorable light.

Start with the prospect of cynicism.26 26.See, e.g., supra note 22.Show More While there may be precious little consensus law in contested cases, there is a vast amount of individual and group-based law. In fact, there may be too much law in contested cases. The judiciary is composed of individuals who adhere to personal rules, and groups of those individuals tend to endorse convergent rule sets. The result is group-based disagreement, with relatively formalist and conservative judges ascendant.27 27.Roughly speaking, one might say that personal rules associated with the Federalist Society now form a larger and more important part of the law than the personal rules associated with the American Constitution Society. See Emma Green, How the Federalist Society Won, New Yorker (July 24, 2022), https://www.newyorker.com/news/annals-of-education/how-the‌-federalist-society-won [https://perma.cc/72XK-D4L9]; see also Arthur D. Hellman, The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases, 82 U. Pitt. L. Rev. 273, 274 (2020) (“It is almost as though each group of Justices has found its own copy of the Constitution . . . .”).Show More Jurists today are about as rulebound as their predecessors were, if not more so. But when placed in the same judicial system, these judges’ conflicting legal commitments can generate unpredictability, or worse. So the claim that there is no constitutional law, or that constitutional law is just politics, misses the real problem.

That more nuanced picture of the legal system leads naturally to the topic of reform. If the courts often aren’t acting as courts at all, then it makes sense to staff the judiciary as though it were a legislature, or else disempower it.28 28.See Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges 167–68 (2012); Ryan D. Doerfler & Samuel Moyn, The Constitution Is Broken and Should Not Be Reclaimed, N.Y. Times (Aug. 19, 2022), https://www.nytimes.co‌m/2022/08/19/opinion/liberals-constitution.html [https://perma.cc/59MC-2FHH]; Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, The Atlantic (June 8, 2022), https://www.theatlantic.com/ideas/archive/2022/06/supreme-co‌u‌rt-power-overrule-congress/661212/ [https://perma.cc/PM3Z-7QN6].Show More But once we see that personal law exists between policy and consensus law, we can envision subtler reforms, such as creating permissions that recognize and grapple with the genuinely legal diversity among jurists. Rather than insist that the law exists apart from individuals and their personal commitments, the law can be crafted with those different individuals in mind. The point is to foster stability, compromise, and moderation, while avoiding turbulence, obstinacy, or alienation—and to do so in a more nuanced way than simply continuing to insist that one’s own preferred views are correct.29 29.Cf. Stephen E. Sachs, Presidential Comm’n on the Sup. Ct. of the U.S., Closing Reflections on the Supreme Court and Constitutional Governance 2 (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf [https://per‌ma.cc/CAE8-7962] (discussing problems with the judiciary that “can only be solved by the slow work of persuading others”).Show More

Part of that effort must grapple with the varied theories of constitutional law put forward by judges and scholars. Take originalism. Professors Will Baude and Steve Sachs have argued—based on Hartian positivism—that originalism is in fact the law of the United States.30 30.See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457, 1463 (2019); infra Section IV.C.Show More But the positivist case for originalism starts off on the wrong foot by following Hart in seeking an abstract principle of consensus.31 31.See Baude & Sachs, supra note 30, at 1463 (noting that whether “the Hartian account is generally wrong and . . . some contrary positivist theory . . . is generally right” is “bigger game”).Show More By contrast, personal positivism looks to individual jurists and so reveals not just originalism in the U.S. legal system, but also a lot of non-originalist methodology, as well as many relatively specific commitments (or “fixed points”) even among originalists. Thus, originalism and other constitutional theories form only parts of our law, even if very important parts.32 32.Cf. Baude, supra note 25, at 2403–07 (discussing, as a fallback position, the possibility that originalism is “at least part of the law” and, moreover, that “a judge is legally entitled to be an originalist”).Show More

  1.  Transcript of Oral Argument at 32, Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (No. 20-1573); see also Transcript of Oral Argument at 7, SEC v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859) (Justice Sotomayor inviting a lawyer to address Justice Thomas’s distinctive jurisprudence). ↑
  2.  Transcript of Oral Argument at 35, 55, 66, United States v. Texas, 143 S. Ct. 1964 (2023) (No. 22-58). ↑
  3.  Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also infra note 171 (collecting sources). ↑
  4.  Justices are distinctively situated in part because their personal rules are mostly unchecked by the rules of other jurists. See infra text accompanying note 106. ↑
  5.  Being “a law unto oneself” captures both freedom from shared principles and personal adherence to genuine rules. For the phrase’s biblical origin, see Romans 2:14. ↑
  6.  See Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 860 & n.224 (2023) (outlining “personal positivism”). ↑
  7.  Regarding my focus on judges, see infra note 37 and infra Section II.B. ↑
  8.  See H.L.A. Hart, The Concept of Law 108, 116 (2d ed. 1994). For other positivist rejections of Hart’s focus on consensus, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325, 1348–50 (2018); infra notes 95, 104. ↑
  9.  See, e.g., Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1408 (2021) (discussing increases in partisan en banc activity). ↑
  10.  Changes at the Supreme Court have more to do with “party sorting” than “polarization,” in that party affiliation perfectly tracks ideology even if the gap between left and right hasn’t grown. See Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 125–26 (2021); see also Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 257–61 (2021) (providing evidence of federal judicial polarization). ↑
  11.  410 U.S. 113 (1973). ↑
  12.  West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022). ↑
  13.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). ↑
  14.  See Hart, supra note 8, at 108. ↑
  15.  See infra text accompanying notes 62, 132 (collecting sources). ↑
  16.  See Re, supra note 6, at 845. ↑
  17.  Relatedly, I sometimes offer alternative theories or backup positions. See, e.g., infra note 55 (outlining a relatively moderate “personalized positivism”). ↑
  18.  See infra Section I.A (adopting a pragmatic stance toward meta-jurisprudence); cf. Hart, supra note 8, at 241 (Hart describing his own and Dworkin’s differing “conceptions of legal theory” as distinct “enterprises” that may not conflict). ↑
  19.  See infra text accompanying note 130. A loose analogy: Newtonian physics is fundamentally incorrect, and yet, for most people, far more useful than relativistic physics—a superior theory that is itself still incomplete. ↑
  20.  Personal positivism could be recast as a local jurisprudential theory, that is, as a contingent account of the law as it exists within a specific kind of society. Yet local and general jurisprudential claims are related: if the United States is a central instance of a legal system and Hart’s account is inapt in that specific context, then so much the worse for its general jurisprudential appeal. ↑
  21.  142 S. Ct. 2228 (2022). ↑
  22.  See, e.g., Cary C. Franklin, Religious Liberty for Some, Jotwell (Jan. 30, 2023), https://co‌nlaw.jotwell.com/politics-all-the-way-down/ [https://perma.cc/YRL5-7HJT] (discussing religious liberty case law in terms of “the fact that it’s politics all the way down” and that “the Court is engaged in a political project”); Joseph Fishkin & William E. Forbath, Make Progressive Politics Constitutional Again, Bos. Rev. (June 23, 2022), https://www.bostonrevi‌ew.net/forum/make-progressive-politics-constitutional-again/ [https://perma.cc/2B99-AX‌HF] (discussing “the right’s decisive politicization of the courts”); James F. McHugh & Lauren Stiller Rikleen, The Politicization of SCOTUS Threatens Its Legitimacy, Bloomberg L. (June 30, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/the-politicization‌-of-scotus-threatens-its-legitimacy [https://perma.cc/A5KP-M9WX] (describing “the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas”). Similar ideas of course have a deep intellectual history. See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5–6, 32 (1984). ↑
  23.  See infra note 204. ↑
  24.  See Henry Gass, Originalism Moves from Theory to High Court. What That Means for US., Christian Sci. Monitor (Dec. 21, 2021), https://www.csmonitor.com/USA/Justice/2021/1‌221/Originalism-moves-from-theory-to-high-court.-What-that-means-for-US [https://perma.‌cc/6C6X-YHWQ]; Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (Justice Alito calls himself a “practical originalist”). ↑
  25.  Cf. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015). ↑
  26.  See, e.g., supra note 22. ↑
  27.  Roughly speaking, one might say that personal rules associated with the Federalist Society now form a larger and more important part of the law than the personal rules associated with the American Constitution Society. See Emma Green, How the Federalist Society Won, New Yorker (July 24, 2022), https://www.newyorker.com/news/annals-of-education/how-the‌-federalist-society-won [https://perma.cc/72XK-D4L9]; see also Arthur D. Hellman, The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases, 82 U. Pitt. L. Rev. 273, 274 (2020) (“It is almost as though each group of Justices has found its own copy of the Constitution . . . .”). ↑
  28.  See Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges 167–68 (2012); Ryan D. Doerfler & Samuel Moyn, The Constitution Is Broken and Should Not Be Reclaimed, N.Y. Times (Aug. 19, 2022), https://www.nytimes.co‌m/2022/08/19/opinion/liberals-constitution.html [https://perma.cc/59MC-2FHH]; Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, The Atlantic (June 8, 2022), https://www.theatlantic.com/ideas/archive/2022/06/supreme-co‌u‌rt-power-overrule-congress/661212/ [https://perma.cc/PM3Z-7QN6]. ↑
  29.  Cf. Stephen E. Sachs, Presidential Comm’n on the Sup. Ct. of the U.S., Closing Reflections on the Supreme Court and Constitutional Governance 2 (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf [https://per‌ma.cc/CAE8-7962] (discussing problems with the judiciary that “can only be solved by the slow work of persuading others”). ↑
  30.  See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457, 1463 (2019); infra Section IV.C. ↑
  31.  See Baude & Sachs, supra note 30, at 1463 (noting that whether “the Hartian account is generally wrong and . . . some contrary positivist theory . . . is generally right” is “bigger game”). ↑

  32.  Cf. Baude, supra note 25, at 2403–07 (discussing, as a fallback position, the possibility that originalism is “at least part of the law” and, moreover, that “a judge is legally entitled to be an originalist”). ↑

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