Article

Radical Constitutional Change

At defining points in American history, there have been radical constitutional changes, defined as massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles and widely accepted frameworks are discarded as erroneous, even illegitimate, in favor of new principles and frameworks. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution—its core commitments and underlying narratives. These radical, dizzying changes often trigger a sense of “constitutional vertigo,” particularly in those wedded to the old order. Our goal is to provide a conceptual map and to describe how and why radical constitutional change occurs and the vertigo that it precipitates. First, we ask whether theories of interpretation trigger radical change, or whether desires for fundamental change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many people experience a form of vertigo. Third, we investigate the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” (sometimes authorizing or leading to radical change driven by the president or Congress) and the less familiar top-down approaches, where legal elites push for and then impose a new constitutional regime.

But something is happening
And ya’ don’t know what it is
Do you, Mister Jones?

  • – Bob Dylan, “Ballad of a Thin Man”1 1.Bob Dylan, Ballad of a Thin Man, on Highway 61 Revisited (Columbia Recs. Aug. 30, 1965).Show More

“What feels different at this moment is the ambition and the velocity, how fast and aggressively [constitutional change is] happening . . . .”

  • – Barry Friedman2 2.Jesse Wegman, The Crisis in Teaching Constitutional Law, N.Y. Times (Feb. 26, 2024), https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html.Show More

“I couldn’t stand up in front of the class and pretend the students should take the [Roberts C]ourt seriously in terms of legal analysis.”

Introduction

Heads have spun before, and heads are spinning now.

Heads spun during the New Deal, with titanic initiatives from Franklin Delano Roosevelt and his New Deal and, eventually, dramatic shifts from the Supreme Court. Heads spun during the heyday of the Warren Court, and Lyndon Baines Johnson’s Great Society left many woozy.

Nothing is exactly like anything else, of course, and things that seem alike might be very different—radically different, so to speak. We write in 2025. For many, the Roberts Court’s jurisprudential shifts are revolutionary in their scope, magnitude, and pace. Or consider the flurry of executive orders in the early days of the second term of President Donald Trump. Many people think that the United States is in a full-blown “constitutional crisis,” stemming from what they see as the executive branch’s attempts to topple settled understandings—for example, to reconceptualize birthright citizenship, to reject the independence of independent agencies and thus to overturn Humphrey’s Executor v. United States, to revive a long-dormant Impoundment Power, and to punish law firms and universities thought to be associated with certain causes and points of view.4 4.See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025); Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Adam Liptak, Trump’s Actions Have Created a Constitutional Crisis, Scholars Say, N.Y. Times (Feb. 12, 2025), https://www.nytimes.com/2025/02/10/us/politics/trump-constitutional‌-crisis.html.Show More One powerful adviser to President Trump, now the Director of the Office of Management and Budget, has exhorted the Right to become “radical constitutionalists” and “throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years.”5 5.Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022) (emphasis omitted), https://americanmind.org/salvo/renewing-american-purpose/ [https://perma.cc/3F‌F6-298G].Show More

Our goal is to step back from particular rulings, orders, and events and assess the phenomenon of radical constitutional change writ large. Like that powerful aide to President Trump, we too are interested in radical constitutionalism. But our focus is not on the Roberts Court or President Trump, and we do not have much to say about them here, except to link them with prior developments and to emphasize what is obvious, which is that whether one (or both) are instigators of radical constitutional change will become much more apparent in the years to come.

Our topic is a general phenomenon: on occasion, the scope, magnitude, and pace of constitutional shifts are so significant that contemporaries feel that the foundations are shaking, with much of the past—its theoretical underpinnings, its practices, and its doctrines—abruptly delegitimated. We describe the burial of the past and the advent of a new regime as “radical constitutional change”6 6.We use “radical constitutional change” as a relational concept, without any reference to the political left. We use “radical” to connote a far-reaching or thoroughgoing change.Show More or a “constitutional paradigm shift.” Such transformations are the source of constitutional vertigo, a dizzying sense that the old order is crashing down.

There is no doubt that constitutional law periodically experiences paradigm shifts.7 7. See generally Thomas S. Kuhn, The Structure of Scientific Revolutions (1962) (exploring how paradigms shift in scientific fields). We use the idea of paradigm shift in a more colloquial way than Kuhn does.Show More As we understand it, a paradigm is a defining approach or framework, not an isolated ruling or action. Considered in isolation, a modest modification of some doctrine or practice does not produce a sense of vertigo. Tinkering is not radical. And yet, a single decision, or a framework that makes it possible, might rest on a widely held paradigm, and the repudiation of that decision or framework might reflect a nascent, or a newly regnant, constitutional paradigm.8 8.Arguable examples include West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (rejecting the Lochner Court’s use of substantive economic due process and upholding a state law setting minimum wages for working women); Brown v. Board of Education, 347 U.S. 483 (1954) (overruling the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), to declare school segregation unconstitutional); Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to hold that the federal Constitution does not provide a right to abortion); District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment protects an individual’s right to possess a firearm in his home); Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 143 S. Ct. 2141 (2023) (holding that affirmative action admissions practices in universities violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a public official allegedly subject to defamatory falsehoods relating to his official conduct must prove actual malice in order to recover damages for the defamation); and Reynolds v. Sims, 377 U.S. 533, 534 (1964) (holding that the “Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside”).Show More

Years ago, a unique form of radical constitutional change received considerable attention. Much was written about “constitutional moments,”9 9.See generally 2 Bruce Ackerman, We the People: Transformations (1998).Show More understood as large-scale political and legal rethinking of constitutional commitments, culminating in legitimate constitutional transformation. The Founding, the Civil War, and the New Deal have been described as constitutional moments.10 10.See id. at 11–12.Show More According to Bruce Ackerman, these were legitimate transformations because they reflected popular reformation of the Constitution.11 11.See 1 Bruce Ackerman, We the People: Foundations 40–44 (1991) (“[B]oth Reconstruction Republicans and New Deal Democrats engag[ed] in self-conscious acts of constitutional creation that rivaled the Founding Federalists’ in their scope and depth.”).Show More More recently, David Strauss has highlighted many constitutional changes, both large and small, that arose outside of Article V.12 12.See David A. Strauss, The Living Constitution 115–39 (2010).Show More Strauss urges that ours is a common law constitution whose meaning is determined, and altered, through case-by-case judgments. Most of the shifts he describes are not significant enough to count as constitutional moments, but many are by no means incremental and could be said to be part of a larger constitutional transformation.

It is difficult to specify necessary and sufficient conditions for constitutional moments.13 13.For discussion, see Daniel Taylor Young, How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling to Evaluate Bruce Ackerman’s Theory of Constitutional Change, 122 Yale L.J. 1990, 1993–96 (2013).Show More There is debate about how stringent such tests should be.14 14.Compare 1 Ackerman, supra note 11, at 266–67 (describing four necessary stages: signaling, proposal, mobilized public deliberation, and codification), with 3 Bruce Ackerman, We the People: The Civil Rights Revolution 44–46 (2014) (advancing a more complicated process of signaling, proposal, a triggering election, mobilized elaboration, a ratifying election, a consolidating phase, and a return to normal politics).Show More In any case, most large-scale shifts lack the procedural rigor and popular support that some demand for legitimate transformation. We analyze the phenomenon of constitutional change without regard to whether the changes are legitimate, which makes our project broader than Ackerman’s. Further, our account differs from Strauss’s. While he focuses on how case-by-case judgments change constitutional law over time, we (mostly) widen the lens and consider why and how radical constitutional change occurs, the vertigo it causes, and the crucial role of top-down, elite-driven change in constitutional law.

Jack Balkin’s treatment of “off-the-wall” and “on-the-wall” constitutional claims describes how it is that certain arguments that were once seen as outlandish come to be taken seriously by some and, eventually, by many.15 15.See, e.g., J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1729 (1997) (describing “off-the-wall” interpretations of the Constitution as those which are “clearly unpersuasive at any given point in time, given the political and professional consensus of opinion”); Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 179–83(2011) (developing “off-the-wall” versus “on-the-wall” as “a convenient shorthand for a more complicated array of views—call it the ‘spectrum of plausibility’—that well-socialized lawyers might have about a constitutional claim”). We are particularly taken by this illuminating (and charming) comment:[M]y own judgment about what is “on the wall” and what is “off the wall” . . . is slowly but surely moving out of the mainstream . . . . My sense of what is possible and plausible, what is competent legal reasoning and what is simply made up out of whole cloth is probably mired in an older vision of the Constitution that owes much to the Warren and Burger Courts as well as to the predominantly liberal legal academy in which I was educated, trained, and now teach. Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407, 1446 (2001).Show More We have learned a great deal from Balkin’s important work, and portions of our discussion borrow from and build on his insights. Our treatment touches upon additional matters, including the relationship between constitutional theories and change, the vertiginous consequences of paradigm shifts, and top-down, not just bottom-up, theories of constitutional change. Other differences emerge, though we refrain from identifying all relevant contrasts.

In this Article, we offer a conceptual map and discuss how constitutional arguments move from the margin to the mainstream and thus induce a sense of vertigo. We make five claims:

  1. Constitutional understandings can be arrayed along a continuum. In the center is the mainstream of thought. Beyond the mainstream are claims that can be aligned along the continuum from extreme to outlandish to unthinkable. A constitutional argument can move between these categories, shifting from the outlandish to the mainstream or from the mainstream to the unthinkable. Of course, some unthinkable claims are attractive to the left, and others are attractive to the right. (We offer examples.)
  2. Theories of constitutional interpretation do not much constrain radical constitutional change, either because most theories are flexible enough to authorize such change, or (in our view, more interestingly) because those seeking radical change tend to endorse a theory that mandates or permits it.16 16.See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 50–51 (1980).Show More Indeed, some embrace a constitutional theory precisely because it mandates or permits the radical change they desire. This is the reason, or at least a reason, that some constitutional theories come to be seen as intensely appealing, even if they seemed weird, outlandish, or radical when they were initially proposed. This is also, we think, a significant part of what constitutional theorizing in the academy and elsewhere is about, at least implicitly.
  3. Radical constitutional change is often a product of bottom-up influences, as when ordinary citizens insist on such change and institutions respond (including with a theory of interpretation that legitimates such change). But constitutional change also reflects top-down influences, as when legal elites (within the academy, the bar, and the federal government17 17.More precisely, by legal elites we mean members of Congress, the executive branch, the judiciary, the bar, and the legal academy. In some areas, say, when states are trying to drive constitutional change, what state officials say and do will matter as well.Show More) articulate a new theory or argue for new outcomes and convince other elites. The role of legal elites in driving constitutional change has received far too little attention. In fact, without the backing of at least some legal elites, no constitutional change at the federal level is possible because, as we explain later, elites enjoy a monopoly over all the instruments of change. The undoubted divisions among elites do not diminish this monopoly. Furthermore, elites gatekeep constitutional change, even as some significant elites (legislators and presidents) are subject to an electoral check. Sometimes the public merely authorizes radical constitutional change, and national institutions (presidents, Congress, courts) take the lead.
  4. Radical constitutional change produces a sense of vertigo among those educated in, or committed to, the displaced regime. Often, they feel disoriented, even gaslighted. This vertigo occurs because old theories are discarded, and new ones take their place. It occurs because old narratives, widely accepted for decades, are repudiated in favor of new narratives, perhaps understanding U.S. history in novel and different ways. It occurs because some canonical cases lose that status, and new cases, or long-neglected cases, become iconic and part of the new canon.18 18.We are grateful to Lawrence Solum for help with this paragraph. Consider here Brown v. Board of Education, much criticized in its time, but now taken for granted by all sides. Brown has been canonized by all. We briefly discuss the contemporaneous critique of Brown below, noting that our discussion might be revealing to those who believe that the decision was obviously right. In our view, matters are far more complicated. See infra Section I.B.Show More It occurs because canonical cases, or long-neglected cases, become understood in radically new and different ways.
  5. Constitutional law is highly contingent—far more so than those immersed in a particular period tend to think. Contemporary lawyers, law professors, and judges often find it difficult to grasp the central methods at work in constitutional law in (say) 1890, 1920, and 1950 because those methods are so far from their own. People immersed in a particular set of understandings—and used to seeing contemporary Justices as larger than life, even giants (perhaps heroes, perhaps villains)—tend to treat their practices and conceptions as somewhat timeless and fixed, rather than as one effort to see through a glass darkly. That is one reason that they experience a sense of vertigo when what seemed timeless is thrown into some kind of garbage can.

Part I lays out a continuum of constitutional claims. We explore change in all its forms—the rejection of established doctrine and practices, the radical changes in theories, and the movement of claims once seen as extreme and outlandish to being taken as reasonable, mainstream, and even correct. When that movement occurs, some people experience a sense of triumph, as if they have won a war, while others have a sense of defeat, as if their world has been lost.

In Part II, we consider the complicated relationship between radical constitutional change and theories of constitutional interpretation.19 19.Our discussion of the rise and fall of constitutional theories intersects with Philip Bobbitt’s constitutional modalities. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 7 (1982). It is possible that some theories of constitutional interpretation (e.g., a concern for discrete and insular minorities) reflect a focus on ethical arguments, and that other theories (say, originalism) exalt text and history. Most theories of interpretation are pluralistic in the sense that they rely upon more than one of Bobbitt’s modalities. While Bobbitt believes that each of his modalities is an appropriate method of interpretation, we wonder whether his work mostly reflects the particular factors that seemed especially relevant at the end of the twentieth century.Show More We discuss whether constitutional theories are accelerants or retardants to radical change. We also discuss the possibility that some people modify or create new constitutional theories to legitimate or foster radical constitutional change. As we will see, some carts lead some horses.

Part III focuses on the phenomenon of constitutional vertigo. Some regard radical change, when it occurs, as a byproduct of naked power.20 20.For a vivid example, see James Jackson Kilpatrick, The Southern Case for School Segregation 105 (1962).Show More To them, a pack of yahoos, or extremists, or authoritarians discarded the old regime, with judges and haven’t-got-a-clue law professors both following political winds and doing politics.21 21.See the discussion of Burke, infra Section II.B.Show More They hijacked the Constitution. The inmates seem to be running the asylum. “This is not law; this is not our Constitution,” the critics will proclaim.22 22.See Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures, 1958, at 55 (1958); Kilpatrick, supra note 20, at 165–66.Show More The skeptics and the proponents live in different epistemic communities; what they think, and what they know, reflects their parochial community and offers (if it is in the ascendancy) a sense of timelessness.23 23.The term “epistemic communities” emerged out of and is most often used in the field of international relations in ways that overlap with but are more specific than our usage here. For overviews of the concept as it developed in international relations, see Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 3 (1992); Peter Haas, Epistemic Communities, in The Oxford Handbook of International Environmental Law 698, 698–701 (Lavanya Rajamani & Jacqueline Peel eds., 2d ed. 2021). For a valuable account of how people know what they know, with an emphasis on epistemic limits, see generally Russell Hardin, How Do You Know? The Economics of Ordinary Knowledge (2009). In law, see Kerstin von Lingen, Epistemic Communities of Exile Lawyers at the UNWCC, 24 J. Hist. Int’l L. 315, 316–17 (2022) (discussing epistemic communities among lawyers).Show More

But the communities may eventually find common ground, for once the new order is widely accepted, much from the bygone era will seem jarring, even illegitimate, perhaps part of the “anticanon.”24 24.See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011) (“[T]he project of identifying the Supreme Court’s worst decisions is not solely a normative one. There is a stock answer to the question, not adduced by anyone’s reflective legal opinion but rather preselected by the broader legal and political culture. . . . [These cases] are the American anticanon. Each case embodies a set of propositions that all legitimate constitutional decisions must be prepared to refute.”).Show More Long after a new regime takes hold, a lawyer might find past discourse baffling: “How was any of this plausible, much less the law?”

Consider some wisdom from the physicist Max Planck: “A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.”25 25.Max Planck, A Scientific Autobiography (1948), reprinted in Scientific Autobiography and Other Papers 13, 33–34 (Frank Gaynor trans., 1950).Show More Science, it is sometimes said, advances one funeral at a time, and there is scientific evidence that this is quite true.26 26.Pierre Azoulay, Christian Fons-Rosen & Joshua S. Graff Zivin, Does Science Advance One Funeral at a Time?, 109 Am. Econ. Rev. 2889, 2889 (2019). We are pleased to report that the authors of this article are all alive.Show More The same is often true, we suggest, in law. But Planck’s famous statement is too stark. Well before the death of the opponents of a new order, the handwriting may be on the wall, and hence the widespread sense of vertigo. Something is happening here, but the defenders of the old order may not know what it is. Sometimes, the guardians of the old order die twice, as it were—once when their theory is unceremoniously (or ceremoniously) discarded, and once when they pass.

We discuss the drivers of radical change in Part IV, focusing on elites. There is a rich literature about social movements focused on constitutional change27 27.An intriguing account of two such movements, focused on James Baldwin and William F. Buckley Jr., is Nicholas Buccola, The Fire Is Upon Us: James Baldwin, William F. Buckley Jr., and the Debate Over Race in America (2019). Baldwin’s movement, as we might call it, had serious consequences for constitutional law in the 1960s and 1970s, as did Buckley’s decades later. There are stories to tell there, but we will not tell them here.Show More—groups that seek to shift the Overton Window and alter constitutional doctrine.28 28.Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 345 (2001) (“Over the life of the Republic, social movements have played a significant role in shaping constitutional understandings.”); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1945–47, 1950 (2003). See generally William N. Eskridge, Jr. & Christopher R. Riano, Marriage Equality: From Outlaws to In-Laws (2020) (discussing the gay rights movement).Show More We expand the lens from bottom-up catalysts to encompass the paradigm shifts that originate from the top. Officials, scholars, and lawyers have their constitutional theories and are not merely reacting to bottom-up pressures. Top-down shifts include the textualist turn,29 29.See William N. Eskridge, Jr., Brian G. Slocum & Kevin Tobia, Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1612 (2023) (describing textualism as creating a “revolution in statutory interpretation”).Show More the swing toward the unitary executive,30 30.See Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2202–03 (2020); see also Cass R. Sunstein & Adrian Vermeule, The Unitary Executive: Past, Present, Future, 2020 Sup. Ct. Rev. 83, 105–10 (2021) (discussing Seila Law’s implications for the future of unitary executive theory).Show More and the push for a constitutional right to welfare.31 31.See Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970); see also Frank I. Michelman, The Supreme Court, 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 9 (1969) (describing the “judicial ‘equality’ explosion” and positing that the Court’s interventions in the mid-twentieth century were “mainly designed to move us towards a condition of economic equality,” with an emphasis on a decent minimum for all).Show More In these cases, elites sought to alter the law through argumentation and advocacy.32 32.A vivid example is Goldberg, 397 U.S. at 262 n.8, which pointedly cited Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965), and Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964).Show More Members of the public might not know or care much about top-down shifts; they might give a permission slip. Further, we demonstrate that elite buy-in is necessary for any form of federal constitutional change, radical or otherwise.

Part V considers two hypotheticals that may border on science fiction: one involving abortion and the other the Senate. Some pro-lifers believe that the Constitution forbids abortion.33 33.See infra notes 295–96.Show More These advocates hope to mainstream their view and convince officials (executive, legislative, and judicial) to adopt it. Claiming that the Senate is unconstitutional seems unthinkable, perhaps bonkers. Yet under not unimaginable (though hardly likely) circumstances, the argument could be mainstreamed. Our point is not to convince you that either claim will become part of the mainstream, much less established doctrine, but rather that certain forms of radical change will seem exceedingly unlikely, if not unthinkable, until they belatedly occur. For those who find our claims here to be implausible, consider the effort, in 2025, to reconceive birthright citizenship, an effort that might not have even been imaginable just ten years before.34 34.Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025).Show More

A few words about the contours of our project are necessary. We do not address whether radical changes are legitimate or illegitimate, misguided or long overdue. Ours is a descriptive project. Further, we ignore Article V. We seek to describe how radical constitutional change occurs on the ground. From that perspective, Article V has been neither necessary nor sufficient for radical constitutional change. Moreover, nothing we say should be read as endorsing or rejecting any particular constitutional theory. Whether one is a Dworkinian,35 35.See Ronald Dworkin, Law’s Empire, at vii (1986).Show More a believer in the Compact Theory,36 36.See John C. Calhoun, The South Carolina Exposition (1828), reprinted in 6 The Works of John C. Calhoun 1, 38–39 (Richard K. Crallé ed., N.Y., D. Appleton & Co. 1855).Show More an originalist, or a fan of representation reinforcement,37 37.See Ely, supra note 16, at 181.Show More everyone can profit from pondering radical constitutional change by temporarily sidelining their preferred theory of interpretation.38 38.There are two more limits on our project: First, we say nothing about how constitutional change fits within the broader question of legal change. Second, we do not address the role that technology plays in constitutional change.Show More

We believe that (almost) everyone can recognize the sweeping changes right before our eyes.39 39.For an early recognition of the change, see Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev. 1, 2–4 (2013). Solum’s account is broadly compatible with ours.Show More The Roberts Court may be (is?) the new Warren Court.40 40.Thankfully, one may accept our framework even if one concludes that the Roberts Court has been incrementalist. Skeptics of our claim might argue that the number of overrulings remains limited. For instance, according to Jonathan Adler, the Roberts Court has been far more respectful of precedent as compared to the Warren and Burger Courts. See Jonathan H. Adler, The Restrained Roberts Court, Nat’l Rev. (July 13, 2023, 2:17 PM), https://www.nation‌alreview.com/magazine/2023/07/31/the-restrained-roberts-court/. Other skeptics might say that while doctrine has changed, the real world has not changed all that much. For example, one might claim that Dobbs has not much affected the number of abortions and that SFFA has not much changed the racial composition of entering college classes. (These are of course empirical issues.) Further, one might say that the ultimate impacts are uncertain because the Court has not fully specified the criteria that lower courts must apply. But let us be stubborn: the landscape of constitutional law looks dramatically different from what it was in (say) 2007, for even if the number of precedents overturned remains relatively low, the sheer magnitude of these changes cannot be gainsaid. The rise of Second Amendment rights; the embrace of a unitary executive; the protection of commercial advertising; the growing solicitude for free exercise claims; the emphasis on textual, originalist, and historical methodology (whether consistently applied or not); the repudiation of the idea that courts should defer to agency interpretations of ambiguous statutes (an abandonment rooted in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803))—all this signals that something is happening here. We know what it is, Mr. Jones. To offer a bit more detail, the discarding of Roe and Casey is a monumental change. Roe had shaped people’s perceptions of the Constitution and the Court. Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr.(Sept. 1, 2022), https://ww‌w.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-foll‌owing-abortion-ruling/ [https://perma.cc/DPQ4-AF2P]. Its termination via Dobbs is a watershed, even if most states permit abortion. Furthermore, Dobbs signals a significant change in the operation of “substantive due process.” The focus on (relatively) ancient history and traditions signals that this Court frowns on the use of the two Due Process Clauses as twin engines of constitutional innovation. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248 (2022). Likewise, the discarding of Grutter v. Bollinger, 539 U.S. 306 (2003), clearly signals that another transformation is afoot. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2170–75 (2023). SFFA is momentous because it overturned a highly permissive regime, one in which colleges could use race in their admissions. It is reasonable to think that SFFA will eventually affect admissions and class composition, as colleges get sued for flouting its constraints. SFFA also will spur, and is spurring, suits against the use of race in governmental employment, contracting, and funding, with courts likely to strike down some or many such programs. See, e.g., Julian Mark & Aaron Gregg, Federal Judge Halts Disaster Aid Program for Minority Farmers, Wash. Post (June 10, 2024), https://www.washingtonpost.com/business/2024/06/10/usda-minority-farmers-injunct‌ion/ (discussing an equal protection suit brought against the Agriculture Department and other such lawsuits); Anemona Hartocollis, Northwestern Law School Accused of Bias Against White Men in Hiring, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/us/aff‌irmative-action-lawsuit.html (discussing a Title IX suit and the impact of SFFA). And as mentioned earlier, there are other major changes afoot, regarding free exercise, the Establishment Clause, standing, takings, and more.Show More And, we have seen, prominent members of the Trump Administration seem bent on radical change.41 41.See, e.g., Vought, supra note 5 (calling for the right “to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years”).Show More If vertiginous constitutional change is afoot,42 42.Some colleagues have made to us a more radical point (pun intended): constitutional change is never truly radical unless one witnesses undeniably revolutionary change. The French and Russian Revolutions yielded radical constitutional change; without such a transformation in constitutional fundamentals, there is no paradigm shift. Because radical change is necessarily contextual, we can see why some, particularly those focused on comparative constitutional law, might suppose that none of the changes that America has experienced is radical. But within the American context, we believe that there have been many paradigm shifts that have transformed how we see and implement our Constitution. What can be radical for America may be humdrum elsewhere. May it always be so.Show More it is a particularly apt moment for theorizing about constitutional paradigm shifts.

  1.  Bob Dylan, Ballad of a Thin Man, on Highway 61 Revisited (Columbia Recs. Aug. 30, 1965). ↑
  2.  Jesse Wegman, The Crisis in Teaching Constitutional Law, N.Y. Times (Feb. 26, 2024), https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html. ↑
  3.  Id. ↑
  4.  See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025); Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Adam Liptak, Trump’s Actions Have Created a Constitutional Crisis, Scholars Say, N.Y. Times (Feb. 12, 2025), https://www.nytimes.com/2025/02/10/us/politics/trump-constitutional‌-crisis.html. ↑
  5.  Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022) (emphasis omitted), https://americanmind.org/salvo/renewing-american-purpose/ [https://perma.cc/3F‌F6-298G]. ↑
  6.  We use “radical constitutional change” as a relational concept, without any reference to the political left. We use “radical” to connote a far-reaching or thoroughgoing change. ↑
  7.  See generally Thomas S. Kuhn, The Structure of Scientific Revolutions (1962) (exploring how paradigms shift in scientific fields). We use the idea of paradigm shift in a more colloquial way than Kuhn does. ↑
  8.  Arguable examples include West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (rejecting the Lochner Court’s use of substantive economic due process and upholding a state law setting minimum wages for working women); Brown v. Board of Education, 347 U.S. 483 (1954) (overruling the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), to declare school segregation unconstitutional); Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to hold that the federal Constitution does not provide a right to abortion); District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment protects an individual’s right to possess a firearm in his home); Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 143 S. Ct. 2141 (2023) (holding that affirmative action admissions practices in universities violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a public official allegedly subject to defamatory falsehoods relating to his official conduct must prove actual malice in order to recover damages for the defamation); and Reynolds v. Sims, 377 U.S. 533, 534 (1964) (holding that the “Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside”). ↑
  9.  See generally 2 Bruce Ackerman, We the People: Transformations (1998). ↑
  10.  See id. at 11–12. ↑
  11.  See 1 Bruce Ackerman, We the People: Foundations 40–44 (1991) (“[B]oth Reconstruction Republicans and New Deal Democrats engag[ed] in self-conscious acts of constitutional creation that rivaled the Founding Federalists’ in their scope and depth.”). ↑
  12.  See David A. Strauss, The Living Constitution 115–39 (2010). ↑
  13.  For discussion, see Daniel Taylor Young, How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling to Evaluate Bruce Ackerman’s Theory of Constitutional Change, 122 Yale L.J. 1990, 1993–96 (2013). ↑
  14.  Compare 1 Ackerman, supra note 11, at 266–67 (describing four necessary stages: signaling, proposal, mobilized public deliberation, and codification), with 3 Bruce Ackerman, We the People: The Civil Rights Revolution 44–46 (2014) (advancing a more complicated process of signaling, proposal, a triggering election, mobilized elaboration, a ratifying election, a consolidating phase, and a return to normal politics). ↑
  15.  See, e.g., J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1729 (1997) (describing “off-the-wall” interpretations of the Constitution as those which are “clearly unpersuasive at any given point in time, given the political and professional consensus of opinion”); Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 179–83 (2011) (developing “off-the-wall” versus “on-the-wall” as “a convenient shorthand for a more complicated array of views—call it the ‘spectrum of plausibility’—that well-socialized lawyers might have about a constitutional claim”). We are particularly taken by this illuminating (and charming) comment:[M]y own judgment about what is “on the wall” and what is “off the wall” . . . is slowly but surely moving out of the mainstream . . . . My sense of what is possible and plausible, what is competent legal reasoning and what is simply made up out of whole cloth is probably mired in an older vision of the Constitution that owes much to the Warren and Burger Courts as well as to the predominantly liberal legal academy in which I was educated, trained, and now teach.

    Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407, 1446 (2001). ↑

  16.  See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 50–51 (1980). ↑
  17.  More precisely, by legal elites we mean members of Congress, the executive branch, the judiciary, the bar, and the legal academy. In some areas, say, when states are trying to drive constitutional change, what state officials say and do will matter as well. ↑
  18.  We are grateful to Lawrence Solum for help with this paragraph. Consider here Brown v. Board of Education, much criticized in its time, but now taken for granted by all sides. Brown has been canonized by all. We briefly discuss the contemporaneous critique of Brown below, noting that our discussion might be revealing to those who believe that the decision was obviously right. In our view, matters are far more complicated. See infra Section I.B. ↑
  19.  Our discussion of the rise and fall of constitutional theories intersects with Philip Bobbitt’s constitutional modalities. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 7 (1982). It is possible that some theories of constitutional interpretation (e.g., a concern for discrete and insular minorities) reflect a focus on ethical arguments, and that other theories (say, originalism) exalt text and history. Most theories of interpretation are pluralistic in the sense that they rely upon more than one of Bobbitt’s modalities. While Bobbitt believes that each of his modalities is an appropriate method of interpretation, we wonder whether his work mostly reflects the particular factors that seemed especially relevant at the end of the twentieth century. ↑
  20.  For a vivid example, see James Jackson Kilpatrick, The Southern Case for School Segregation 105 (1962). ↑
  21.  See the discussion of Burke, infra Section II.B. ↑
  22.  See Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures, 1958, at 55 (1958); Kilpatrick, supra note 20, at 165–66. ↑
  23.  The term “epistemic communities” emerged out of and is most often used in the field of international relations in ways that overlap with but are more specific than our usage here. For overviews of the concept as it developed in international relations, see Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 3 (1992); Peter Haas, Epistemic Communities, in The Oxford Handbook of International Environmental Law 698, 698–701 (Lavanya Rajamani & Jacqueline Peel eds., 2d ed. 2021). For a valuable account of how people know what they know, with an emphasis on epistemic limits, see generally Russell Hardin, How Do You Know? The Economics of Ordinary Knowledge (2009). In law, see Kerstin von Lingen, Epistemic Communities of Exile Lawyers at the UNWCC, 24 J. Hist. Int’l L. 315, 316–17 (2022) (discussing epistemic communities among lawyers). ↑
  24.  See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011) (“[T]he project of identifying the Supreme Court’s worst decisions is not solely a normative one. There is a stock answer to the question, not adduced by anyone’s reflective legal opinion but rather preselected by the broader legal and political culture. . . . [These cases] are the American anticanon. Each case embodies a set of propositions that all legitimate constitutional decisions must be prepared to refute.”). ↑
  25.  Max Planck, A Scientific Autobiography (1948), reprinted in Scientific Autobiography and Other Papers 13, 33–34 (Frank Gaynor trans., 1950). ↑
  26.  Pierre Azoulay, Christian Fons-Rosen & Joshua S. Graff Zivin, Does Science Advance One Funeral at a Time?, 109 Am. Econ. Rev. 2889, 2889 (2019). We are pleased to report that the authors of this article are all alive. ↑
  27.  An intriguing account of two such movements, focused on James Baldwin and William F. Buckley Jr., is Nicholas Buccola, The Fire Is Upon Us: James Baldwin, William F. Buckley Jr., and the Debate Over Race in America (2019). Baldwin’s movement, as we might call it, had serious consequences for constitutional law in the 1960s and 1970s, as did Buckley’s decades later. There are stories to tell there, but we will not tell them here. ↑
  28.  Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 345 (2001) (“Over the life of the Republic, social movements have played a significant role in shaping constitutional understandings.”); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1945–47, 1950 (2003). See generally William N. Eskridge, Jr. & Christopher R. Riano, Marriage Equality: From Outlaws to In-Laws (2020) (discussing the gay rights movement). ↑
  29.  See William N. Eskridge, Jr., Brian G. Slocum & Kevin Tobia, Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1612 (2023) (describing textualism as creating a “revolution in statutory interpretation”). ↑
  30.  See Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2202–03 (2020); see also Cass R. Sunstein & Adrian Vermeule, The Unitary Executive: Past, Present, Future, 2020 Sup. Ct. Rev. 83, 105–10 (2021) (discussing Seila Law’s implications for the future of unitary executive theory). ↑
  31.  See Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970); see also Frank I. Michelman, The Supreme Court, 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 9 (1969) (describing the “judicial ‘equality’ explosion” and positing that the Court’s interventions in the mid-twentieth century were “mainly designed to move us towards a condition of economic equality,” with an emphasis on a decent minimum for all). ↑
  32.  A vivid example is Goldberg, 397 U.S. at 262 n.8, which pointedly cited Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965), and Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964). ↑
  33.  See infra notes 295–96. ↑
  34.  Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025). ↑
  35.  See Ronald Dworkin, Law’s Empire, at vii (1986). ↑
  36.  See John C. Calhoun, The South Carolina Exposition (1828), reprinted in 6 The Works of John C. Calhoun 1, 38–39 (Richard K. Crallé ed., N.Y., D. Appleton & Co. 1855). ↑
  37.  See Ely
    ,

    supra note 16, at 181. ↑

  38.  There are two more limits on our project: First, we say nothing about how constitutional change fits within the broader question of legal change. Second, we do not address the role that technology plays in constitutional change. ↑
  39.  For an early recognition of the change, see Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev.
    1

    , 2–4 (2013). Solum’s account is broadly compatible with ours. ↑

  40.  Thankfully, one may accept our framework even if one concludes that the Roberts Court has been incrementalist. Skeptics of our claim might argue that the number of overrulings remains limited. For instance, according to Jonathan Adler, the Roberts Court has been far more respectful of precedent as compared to the Warren and Burger Courts. See Jonathan H. Adler, The Restrained Roberts Court, Nat’l Rev. (July 13, 2023, 2:17 PM), https://www.nation‌alreview.com/magazine/2023/07/31/the-restrained-roberts-court/. Other skeptics might say that while doctrine has changed, the real world has not changed all that much. For example, one might claim that Dobbs has not much affected the number of abortions and that SFFA has not much changed the racial composition of entering college classes. (These are of course empirical issues.) Further, one might say that the ultimate impacts are uncertain because the Court has not fully specified the criteria that lower courts must apply.But let us be stubborn: the landscape of constitutional law looks dramatically different from what it was in (say) 2007, for even if the number of precedents overturned remains relatively low, the sheer magnitude of these changes cannot be gainsaid. The rise of Second Amendment rights; the embrace of a unitary executive; the protection of commercial advertising; the growing solicitude for free exercise claims; the emphasis on textual, originalist, and historical methodology (whether consistently applied or not); the repudiation of the idea that courts should defer to agency interpretations of ambiguous statutes (an abandonment rooted in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803))—all this signals that something is happening here. We know what it is, Mr. Jones.

    To offer a bit more detail, the discarding of Roe and Casey is a monumental change. Roe had shaped people’s perceptions of the Constitution and the Court. Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr.

    (Sept. 1, 2022), https://ww‌w.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-foll‌owing-abortion-ruling/ [https://perma.cc/DPQ4-AF2P]. Its termination via Dobbs is a watershed, even if most states permit abortion. Furthermore, Dobbs signals a significant change in the operation of “substantive due process.” The focus on (relatively) ancient history and traditions signals that this Court frowns on the use of the two Due Process Clauses as twin engines of constitutional innovation. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248 (2022). Likewise, the discarding of Grutter v. Bollinger, 539 U.S. 306 (2003), clearly signals that another transformation is afoot. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2170–75 (2023). SFFA is momentous because it overturned a highly permissive regime, one in which colleges could use race in their admissions. It is reasonable to think that SFFA will eventually affect admissions and class composition, as colleges get sued for flouting its constraints. SFFA also will spur, and is spurring, suits against the use of race in governmental employment, contracting, and funding, with courts likely to strike down some or many such programs. See, e.g., Julian Mark & Aaron Gregg, Federal Judge Halts Disaster Aid Program for Minority Farmers, Wash. Post (June 10, 2024), https://www.washingtonpost.com/business/2024/06/10/usda-minority-farmers-injunct‌ion/ (discussing an equal protection suit brought against the Agriculture Department and other such lawsuits); Anemona Hartocollis, Northwestern Law School Accused of Bias Against White Men in Hiring, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/us/aff‌irmative-action-lawsuit.html (discussing a Title IX suit and the impact of SFFA). And as mentioned earlier, there are other major changes afoot, regarding free exercise, the Establishment Clause, standing, takings, and more. ↑

  41.  See, e.g., Vought, supra note 5 (calling for the right “to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years”). ↑

  42.  Some colleagues have made to us a more radical point (pun intended): constitutional change is never truly radical unless one witnesses undeniably revolutionary change. The French and Russian Revolutions yielded radical constitutional change; without such a transformation in constitutional fundamentals, there is no paradigm shift. Because radical change is necessarily contextual, we can see why some, particularly those focused on comparative constitutional law, might suppose that none of the changes that America has experienced is radical. But within the American context, we believe that there have been many paradigm shifts that have transformed how we see and implement our Constitution. What can be radical for America may be humdrum elsewhere. May it always be so. ↑

Local Rules

Federal courts have been making their own rules—“local rules”—since the First Judiciary Act. These rules, which operate alongside the Federal Rules, govern all aspects of the litigation process, from the initial filing and case assignment in the district court to the type of disposition of an appeal at the court of appeals. Yet despite their long history, their wide scope, and their deep importance, local rules have not been the subject of scholarly attention for years.

This Article offers the most comprehensive study of local rules to date. It provides an overview of the thousands of rules of the ninety-four district courts and the thirteen courts of appeals, and a report of more than fifty interviews with judges, attorneys, court staff, and academics involved in federal and local rulemaking. It also provides a typology of those rules and a deep dive into their purposes, which include accounting for local needs, providing laboratories of experimentation for federal rules, and offering ways to attract (and even repel) litigation.

Normatively, this Article connects the proliferation of local rules to larger questions within our federal court system. This Article suggests that at least some local variation is inevitable, and so local rules should be understood as one way to express that variation—though not the only way. Local variation can be subjected to a regularized and public process that produces transparent local rules, or it can be pushed down to less systematic standing orders, individual judge practices, and unwritten norms that may favor the local bar. But this is not to say that local rules are all to the good: local rules create problems when they contradict or duplicate federal rules, when they place an unnecessary tax on practitioners, and when they create opportunities for forum shopping and forum selling. Local rules may be inevitable, but they are not infallible—this Article seeks to understand and improve them.

Introduction

The Federal Rules of Civil Procedure are 121 pages.1 1.We rely here on the version of the Federal Rules of Civil Procedure posted on the United States Courts website, https://www.uscourts.gov/rules-policies/current-rules-practice-proced‌ure/federal-rules-civil-procedure [https://perma.cc/76DE-SCGG] (last visited May 30, 2025).Show More The Federal Rules of Appellate Procedure are 65 pages.2 2.Federal Rules of Appellate Procedure, Admin. Off. of the U.S. Cts., https://www.uscourts.‌gov/rules-policies/current-rules-practice-procedure/federal-rules-appellate-procedure [https:/‌/perma.cc/Y3J9-BMWP] (last visited May 30, 2025).Show More These rules answer many questions about procedure in federal court, but no one who has even a passing acquaintance with federal practice believes they answer every such question. The rules themselves admit as much. Civil Rule 83 and Appellate Rule 47, building on acts of Congress, expressly authorize federal courts to adopt local rules.3 3.Fed. R. Civ. P. 83; Fed. R. App. P. 47; see also infra Part I (describing the origin of local rulemaking).Show More And in dozens of places, the Federal Rules explicitly or implicitly invite lower courts to develop local rules to supplement, elaborate upon, or depart from the Federal Rules.4 4.See infra Part II.Show More

Over the years, the United States district and circuit courts have issued thousands of local rules, including rules on many topics left wholly unaddressed by the Federal Rules. Some might think that local rules cover only small details—the “housekeeping”5 5.Judith Resnik, Housekeeping: The Nature and Allocation of Work in Federal Trial Courts, 24 Ga. L. Rev. 909, 913–15 (1990).Show More of the federal courts. And it is true that some can feel rather trifling. To take one example, the U.S. Court of Appeals for the Second Circuit’s Local Rule 31.1 states that “[i]n all cases, a party must submit 6 paper copies of each brief”—full stop.6 6.2d Cir. R. 31.1.Show More To take another, Local Civil Rule 1.2 of the U.S. District Courts for the Southern and Eastern Districts of New York specifies that a “night depository with an automatic date stamp [shall] be maintained by the clerk of the Southern District in the Pearl Street Courthouse and by the clerk of the Eastern District in the Brooklyn and Central Islip Courthouses.”7 7.S.D. & E.D.N.Y. Loc. Civ. R. 1.2. One more example because we know that lawyers love fonts: a local rule from the Southern District of West Virginia requires motions and memoranda to be “clearly legible” and provides that “[t]he following fonts are presumed legible: Times New Roman, Courier New, Arial, Century Gothic, Garamond, Georgia, and Century Schoolbook.” S.D. W. Va. LR Civ P 7.1(a)(4).Show More

But, as it turns out, local rules also cover significant topics in myriad ways. Historically, debates over civil juries have at times sounded in local rulemaking.8 8.See, e.g., Colgrove v. Battin, 413 U.S. 149, 150 n.1 (1973) (discussing Montana Local Rule 13(d)(1), which the Court observed was similar in substance to the local rules of fifty-four other federal district courts).Show More Today, fights about case assignment invoke questions about local rules. Judge-shopping, such as the State of Texas’s preternatural ability to end up in front of Judge Matthew Kacsmaryk in recent years, is a practice permitted in many district courts because of local rules on case assignments.9 9.See Michael Hiltzik, Courts Finally Move to End Right-Wing Judge Shopping, But the Damage May Already Be Done, L.A. Times (Mar. 18, 2024, 2:11 PM), https://www.latimes.c‌om/business/story/2024-03-18/federal-courts-finally-put-the-kibosh-on-right-wing-judge-sho‌pping-but-the-damage-is-already-done; Alex Botoman, Note, Divisional Judge-Shopping, 49 Colum. Hum. Rts. L. Rev. 297, 308–21 (2018); Katherine A. Macfarlane, Constitutional Case Assignment, 102 N.C. L. Rev. 977, 981–82, 1005–11 (2024).Show More Rules to channel “related cases” to certain district judges, potentially manipulated in the stop-and-frisk litigation, are creatures of local rules, too.10 10.See Marcel Kahan & Troy A. McKenzie, Judge Shopping, 13 J. Legal Analysis 341, 346, 358 n.29 (2021) (finding forty-six federal district courts with local related-case rules).Show More And there’s more. The Eastern District of Virginia gets its reputation as the “rocket docket” in part because of its highly aggressive local rules.11 11.See infra Subsection II.A.1.Show More For those interested in access to justice, there are roughly five hundred local rules related to pro se litigants in district courts, including ten districts with separate sections of their local rules addressing unrepresented litigants.12 12.Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689, 2691–92, 2705 (2022).Show More Consequential rules about class actions, summary judgment, and corporate disclosures are found in local rules as well.13 13.See infra Section II.A; infra Subsection III.B.4.Show More Meanwhile, in the courts of appeals, practices related to the use of “unpublished” (or non-precedential) opinions14 14.See, e.g., Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 533, 535–36, 535 n.8 (2020).Show More—a sensitive subject over the years—are mostly left unregulated by the Federal Rules of Appellate Procedure.15 15.See Fed. R. App. P. 32.1(a) (simply permitting citation to unpublished opinions).Show More Instead, it is within many of the local rules that one can find details about when the appellate courts think an opinion should be “published” or not, and who can be part of that decision-making process.16 16.See infra Subsection II.A.2.Show More The same is true of other key moments in appellate litigation, including when briefs should be filed, when there should be oral argument, and when courts should rehear cases en banc.17 17.See infra Subsection II.A.2.Show More

Despite their importance, there has not been sustained scholarly attention on local rules.18 18.See infra note 20 (collecting sources, the most recent of which was published in 2015).Show More Much like local rules themselves, then, this Article seeks to fill gaps in, elaborate upon, and address previously unaddressed topics in the literature. We show in this Article that national and local rulemaking, like other systems of federalism, must accommodate national and local interests. And they typically do so, not by allowing one side to completely run over the other, but instead in a more grounded process that ebbs and flows over time. As in federalism, we can observe conflict and cooperation, though perhaps the most common outcome is somewhere in between. And this observation informs our normative judgments about local rules serving important functions in the middle layer between federal rules and individual judge practices.

To better understand local rules, Part I begins with a brief review of their history, starting at the beginning of the federal courts themselves and taking us to the present day. Part II then aims to provide an overview of what the thousands of local rules contain. Having surveyed these rules ourselves, we provide a descriptive account of the topics included in the local rules for the district and appellate courts. Many local rules exist within the federal rules—that is, they address topics also addressed at the national level, such as discovery, case management, and briefing. Others, though, are “outside” the federal rules. We identified and cataloged 1,089 civil district rules and 70 appellate rules of this type, addressing issues such as the regulation of the bar and the administration of the court. We then conclude Part II with a different way of understanding the content of local rules, by providing a taxonomy of local rules as they relate to federal rules. One distinction just mentioned is between rules inside and outside the federal rules. But there is further variation among local rules inside the federal rules: local rules can elaborate or build upon federal rules, and they can respond to federal rules that invite opt-outs or that create a floor or ceiling. Perhaps most surprisingly of all, local rules can contradict or duplicate federal rules.

Part III then considers the purposes of local rules. This work is informed not only by our review of thousands of local rules, but also by dozens of interviews with people involved in federal and local rulemaking. Specifically, we have conducted over fifty semi-structured interviews with judges, attorneys, law professors, and court personnel—making this the largest qualitative study on local rules to date. Our subjects include chairs, reporters, and members of the federal rulemaking committees, as well as chairs and members of local rules committees. These interviews helped us identify and distill several functions behind local rules, including a way to account for local needs and culture, a way to unify and codify judges’ practices, an opportunity to have laboratories of experimentation, and a means to attract and repel certain kinds of litigation.

Part IV then analyzes the findings of our study. We offer some observations about how well the purposes of local rules align with reality, and we suggest ways that local and federal rulemakers can do better. We argue that many of the key tensions within a federal system are alive and well within rulemaking, and it is a fool’s errand to try to formulate hard and fast rules about where there should be uniformity and where variation should be permitted. That said, we must acknowledge that the inter-court variation that comes from local rules is a tax on practitioners—and it is a tax that is not offset by conformity to state practice, which was uniformly rejected as a goal by the rulemakers we interviewed. But we also suggest that local rules must be viewed against a backdrop of local (and even judge-specific) procedures that will produce dis-uniformity whether a district adopts formal local rules or not. If local variation is inevitable, then local rules are perhaps the best way to make that variation transparent and open to outsiders. We also echo longstanding concerns about inconsistency and duplication, and we problematize claims of local needs and experimentation.19 19.We reserve for future work equally important questions about the process of making local rules, including a comprehensive study of the rulemaking apparatus of every district and circuit court as well as a mapping of the information flows among local and federal rulemakers. See generally Zachary D. Clopton & Marin K. Levy, Local Rulemaking, 75 Duke L.J. (forthcoming Feb. 2026).Show More

In sum, this Article aims to shed light on the rules that are playing an important role in governing litigation in the federal system and on the tradeoffs being made between uniformity and “local interests” that have brought us here.

  1.  We rely here on the version of the Federal Rules of Civil Procedure posted on the United States Courts website, https://www.uscourts.gov/rules-policies/current-rules-practice-proced‌ure/federal-rules-civil-procedure [https://perma.cc/76DE-SCGG] (last visited May 30, 2025). ↑
  2.  Federal Rules of Appellate Procedure, Admin. Off. of the U.S. Cts., https://www.uscourts.‌gov/rules-policies/current-rules-practice-procedure/federal-rules-appellate-procedure [https:/‌/perma.cc/Y3J9-BMWP] (last visited May 30, 2025). ↑
  3.  Fed. R. Civ. P. 83; Fed. R. App. P. 47; see also infra Part I (describing the origin of local rulemaking). ↑
  4.  See infra Part II. ↑
  5.  Judith Resnik, Housekeeping: The Nature and Allocation of Work in Federal Trial Courts, 24 Ga. L. Rev. 909, 913–15 (1990). ↑
  6.  2d Cir. R. 31.1. ↑
  7.  S.D. & E.D.N.Y. Loc. Civ. R. 1.2. One more example because we know that lawyers love fonts: a local rule from the Southern District of West Virginia requires motions and memoranda to be “clearly legible” and provides that “[t]he following fonts are presumed legible: Times New Roman, Courier New, Arial, Century Gothic, Garamond, Georgia, and Century Schoolbook.” S.D. W. Va. LR Civ P 7.1(a)(4). ↑
  8.  See, e.g., Colgrove v. Battin, 413 U.S. 149, 150 n.1 (1973) (discussing Montana Local Rule 13(d)(1), which the Court observed was similar in substance to the local rules of fifty-four other federal district courts). ↑
  9.  See Michael Hiltzik, Courts Finally Move to End Right-Wing Judge Shopping, But the Damage May Already Be Done, L.A. Times (Mar. 18, 2024, 2:11 PM), https://www.latimes.c‌om/business/story/2024-03-18/federal-courts-finally-put-the-kibosh-on-right-wing-judge-sho‌pping-but-the-damage-is-already-done; Alex Botoman, Note, Divisional Judge-Shopping, 49 Colum. Hum. Rts. L. Rev. 297, 308–21 (2018); Katherine A. Macfarlane, Constitutional Case Assignment, 102 N.C. L. Rev. 977, 981–82, 1005–11 (2024). ↑
  10.  See Marcel Kahan & Troy A. McKenzie, Judge Shopping, 13 J. Legal Analysis 341, 346, 358 n.29 (2021) (finding forty-six federal district courts with local related-case rules). ↑
  11.  See infra Subsection II.A.1. ↑
  12.  Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689, 2691–92, 2705 (2022). ↑
  13.  See infra Section II.A; infra Subsection III.B.4. ↑
  14.  See, e.g., Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 533, 535–36, 535 n.8 (2020). ↑
  15.  See Fed. R. App. P. 32.1(a) (simply permitting citation to unpublished opinions). ↑
  16.  See infra Subsection II.A.2. ↑
  17.  See infra Subsection II.A.2. ↑
  18.  See infra note 20 (collecting sources, the most recent of which was published in 2015). ↑

  19.  We reserve for future work equally important questions about the process of making local rules, including a comprehensive study of the rulemaking apparatus of every district and circuit court as well as a mapping of the information flows among local and federal rulemakers. See generally Zachary D. Clopton & Marin K. Levy, Local Rulemaking, 75 Duke L.J. (forthcoming Feb. 2026). ↑

The Fourth Amendment’s Hidden Intrusion Doctrine

The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This Article challenges the assumption that the same quantum of evidence can meet the probable cause standard regardless of whether law enforcement seeks to conduct a search, to seize evidence, or to make an arrest, and regardless of the intrusiveness of such search or seizure. This Article demonstrates that the Supreme Court implicitly considers the degree of intrusion into privacy or liberty, not just the quantum or quality of evidence, when determining whether probable cause exists. In doing so, I bring to light the Supreme Court’s “hidden intrusion doctrine.”

By failing to explicitly state that the degree of intrusion is a factor in the probable cause analysis, the Supreme Court injects ambiguity that has many consequences. Some lower courts and law enforcement agencies already balance the quantum or quality of evidence with the severity of intrusion, even without explicit Supreme Court guidance, but others do not. The ambiguity in the doctrine therefore fosters inconsistency and expands police discretion. Moreover, as technological advancements from facial recognition to digital searches reshape investigative techniques, the need for a clear articulation of the probable cause standard is increasingly urgent.

This Article suggests both doctrinal and policy-based proposals that would bring the Supreme Court’s intrusion doctrine out of the shadows and require deliberate consideration of the degree of intrusion in probable cause determinations. Such an approach would preserve law enforcement flexibility while safeguarding individual rights amidst evolving technological landscapes.

Introduction

In 2022, Alonzo Sawyer was arrested after facial recognition software generated a list of potential matches to surveillance images of a man who had recently assaulted a bus driver.1 1.Eyal Press, Does A.I. Lead Police to Ignore Contradictory Evidence?, New Yorker (Nov. 13, 2023), https://www.newyorker.com/magazine/2023/11/20/does-a-i-lead-police-to-ignore-contradictory-evidence.Show More Using the facial recognition software as the basis for probable cause, police arrested Mr. Sawyer and detained him for approximately a week with hardly any other investigation.2 2.Id.Show More After all, the image and software created a nexus between Mr. Sawyer and the crime. There was no question that the person depicted in the surveillance footage was the assailant.

The problem is that Mr. Sawyer was not the person in the image. After police arrested Mr. Sawyer, officers conducted several less invasive investigatory steps: police visited the house where he had been staying to search the premises for the clothing the assailant had been wearing in the surveillance photo and found nothing.3 3.Id.Show More They interviewed his relatives, who confirmed Mr. Sawyer’s alibi that he had been at home many miles away at the time of the assault.4 4.Id. Police also showed the surveillance photograph from the assault to Mr. Sawyer’s probation officer, who at first said he believed the photo was of Mr. Sawyer. Id. The probation officer, however, was told before he made the identification that Mr. Sawyer had been identified by facial recognition. Id. In addition, he had only met Mr. Sawyer wearing a COVID pandemic-era mask. Id. The probation officer later questioned his own identification and reached out to police to say that he had changed his mind—he no longer thought the surveillance image depicted Mr. Sawyer. Id.Show More These actions were not only far less intrusive than arresting Mr. Sawyer; they also revealed that the facial recognition software had been wrong.

Mr. Sawyer’s arrest turned on the definition of probable cause. Police used a match from new, relatively untested software to justify his arrest and detention for several days. Was that evidence enough to meet the probable cause standard to deprive him of his liberty, arguably the most severe intrusion implicated by the Fourth Amendment? What would have happened if police had been required to investigate further using less intrusive methods before arresting Mr. Sawyer? Could his week in jail have been avoided? Does the law require such an intermediate investigation when the only evidence is from new, untested technology?

This Article examines these questions through the lens of the Fourth Amendment’s probable cause standard, challenging the predominant understanding that the same quality or quantum of evidence—the evidentiary inputs—can satisfy the standard regardless of the degree of intrusion police want to exercise. The term probable cause comes directly from the text of the Fourth Amendment, which requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”5 5.U.S. Const. amend. IV (emphasis added).Show More Drawing on this text, probable cause has become the standard6 6.In this Article, I focus only on the Fourth Amendment intrusions that rely on probable cause to demonstrate how that analysis also includes the degree of intrusion, even though the Supreme Court does not explicitly acknowledge it as it does in the reasonable suspicion context. There are other types of search and seizure that do not require probable cause, such as searches incident to a lawful arrest, inventory searches, and sobriety checkpoints, which are not justified by any degree of suspicion that a specific person has committed a crime, see infra notes 16, 69, 104 and accompanying text, and so-called Terry stops, which are supported by reasonable suspicion, a lower standard than probable cause. See infra note 37.Show More by which law enforcement can, while investigating a crime, conduct three separate and distinct actions that implicate individuals’ privacy or liberty interests7 7.Law enforcement may also collect evidence through many different types of actions that require little, if any, individualized suspicion that evidence will be found in a particular place. See, e.g., United States v. Tuggle, 4 F.4th 505, 510–11 (7th Cir. 2021); Smith v. Maryland, 442 U.S. 735, 745–46 (1979); 18 U.S.C. § 2703(d) (allowing disclosure of certain electronic communications based on the government’s representation that records are “relevant and material to an ongoing criminal investigation”). Nevertheless, as discussed elsewhere in this Article, the probable cause standard is required for many of the actions law enforcement conduct that most deeply intrude into individuals’ privacy. See infra Section I.A.Show More: arrest,8 8.See, e.g., Maryland v. Pringle, 540 U.S. 366, 368 (2003). Notably, police do not need a warrant to arrest someone in public, as long as the arrest is based on probable cause. United States v. Watson, 423 U.S. 411, 423–24 (1976).Show More search of a constitutionally protected area,9 9.See, e.g., Illinois v. Gates, 462 U.S. 213, 246 (1983).Show More and seizure of evidence.10 10.See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). Probable cause is also the standard for many other iterations of these basic intrusions. See infra notes 20–25 and accompanying text.Show More

Most scholars would say that the same standard of probable cause applies11 11.See 2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 3.3(a), at 118 n.8 (4th ed. 2015) (“Thus, in Spinelli v. United States, 393 U.S. 410 . . . (1969), where the issue was whether the challenged search warrant had been issued on probable cause, the Court found its earlier decision in Draper v. United States, 358 U.S. 307 . . . (1959), involving grounds to arrest, to be a ‘suitable benchmark’ for resolving that issue. Similarly, Illinois v. Gates, 462 U.S. 213 . . . (1983), which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well. State v. Schroeder, 450 N.W.2d 423 (N.D. 1990).”). The treatise authors note that the question of “probable cause of what” will differ in various contexts, but the general quantum of evidence and the analysis is the same. Id. § 3.3(a). See also Craig S. Lerner, The Reasonableness of Probable Cause, 81 Tex. L. Rev. 951, 953–54 (2003) (“[P]robable cause is widely viewed in the legal community as a fixed standard.”).Show More regardless of whether police wanted to get a warrant for Mr. Sawyer’s phone records or arrest him. I argue that the law requires more, or stronger, evidence to justify a greater intrusion into an individual’s privacy or liberty than the evidence necessary to justify a lesser intrusion. Under such an approach, for example, the facial recognition match might, alone, provide probable cause to obtain phone records, but not to arrest Mr. Sawyer and deprive him of his liberty.

In this Article I show that, contrary to widespread assumptions, the Supreme Court has implicitly acknowledged that whether probable cause exists to justify any given search or seizure depends in part on the degree of intrusion the particular search or seizure entails. For example, the Court has required more or stronger evidence to justify the search of a home or a custodial arrest than it has for the search of a car, even though “probable cause” is the standard for all three. But the assumption that the degree of intrusion does not factor into the totality of the circumstances12 12.See Gates, 462 U.S. at 246.Show More test used to evaluate probable cause is understandable because the Supreme Court has failed to say so explicitly. This Article identifies and defines these considerations in what I term the Fourth Amendment’s “hidden intrusion” doctrine.

The Supreme Court’s vagueness on its intrusion doctrine and the ensuing failure of lower courts and law enforcement to consistently consider the degree of intrusion in determining whether probable cause exists have injected ambiguity that has many consequences,13 13.See Section I.C.Show More including arrests like Mr. Sawyer’s. It allows police to proceed less cautiously, moving straight to an arrest without any intermediate investigation. It gives cover to police who arrest when they could first search to confirm their suspicions, and it allows them to conduct a more intrusive search when a less intrusive search would suffice. It insulates police decision-making from judicial review and civil liability. It sows confusion for trial courts applying the probable cause standard, for judges reviewing warrant applications, and for officers on the street trying to conduct police work that comports with the Fourth Amendment. It undermines transparency and consistency in the application of the probable cause standard. It generally expands police power.

Though some scholars have argued that balancing the quantum or quality of evidence collected by police with the degree of intrusion involved in a search or seizure should be part of the Fourth Amendment analysis,14 14.See Christopher Slobogin, Let’s Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 St. John’s L. Rev. 1053, 1053–54 (1998) [hereinafter Slobogin, Let’s Not Bury Terry] (“That framework, which I call the proportionality principle, is very simple: A search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action.”); Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1343 (2020). Over thirty years ago, Christopher Slobogin recognized the value of incorporating the degree of intrusion into search and seizure analysis in his article imagining how the government would consider a search and seizure doctrine if the Fourth Amendment did not exist. See Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 49–50 (1991) [hereinafter Slobogin, The World Without a Fourth Amendment]. Slobogin argued that the “proportionality principle” was not part of existing Fourth Amendment doctrine but represented the proper balance of interests between the State and the populace. Id. (“Put another way, because the cost to individual interests of a mistake by the police is greatest when the intrusion is greatest, and diminishes as the intrusion lessens, the tolerance for such mistakes should vary inversely with the level of intrusion. Note further that the cost to the state of a police mistake is also greatest when the intrusion is greatest, because the public is more likely to perceive unnecessary police intrusions as illegitimate when they are significant.” (emphasis omitted)). This Article argues that Slobogin’s “proportionality principle” is already being applied by the courts, even if it has never been explicitly incorporated into Fourth Amendment doctrine.Show More this Article is the first to argue that such balancing is already part of the jurisprudence. The common, unitary understanding of probable cause—that one should entirely ignore the degree of intrusion in deciding whether probable cause exists to justify a particular search or seizure—misapplies important nuances in Supreme Court doctrine.

In addition, I show that there is no need for the Supreme Court’s intrusion doctrine to remain hidden and that bringing it to light would increase transparency and consistency in decisions made by lower courts and law enforcement. There is in fact broad understanding among system actors that the degree of intrusion is relevant in evaluating whether a search or seizure is justified. Some courts and police are already doing such balancing on an ad hoc basis,15 15.See infra Section II.A.Show More requiring more evidence to justify the search of a home than a car, or to justify a search of someone’s crotch than less private parts of their body. But without guidance from the Supreme Court sanctioning such consideration, they are merely acting on the instinct that the degree of intrusion should be part of the search and seizure calculus. The result is a hodgepodge legal doctrine of probable cause that rarely discusses degree of intrusion, even if it is implicitly part of the analysis. Police and judges are left with no coherent limiting principle—some follow their instinct that more or more reliable evidence should be necessary to justify a greater intrusion into individuals’ privacy, but others do not.

An examination of how the police apply the probable cause standard in two areas of emerging technology provides useful case studies for the necessity of a clear intrusion doctrine. As untested technologies, like the facial recognition technology used in Mr. Sawyer’s case, are used to develop leads that then justify searches, seizures, and arrests, courts and police need guidance to help understand how new technologies should be used in the probable cause analysis. A clear intrusion doctrine would guide courts and policy-makers as they respond to an ever-changing technological law enforcement landscape, providing guardrails that protect citizens from undiscovered flaws in new technology while still allowing law enforcement agencies to use new technology. An explicit understanding of how the degree of intrusion applies in the probable cause analysis would encourage police to tread carefully with untested technology. It would encourage them to search before they arrest and to minimize harm from unanticipated errors.

Likewise, bringing the Supreme Court’s hidden intrusion doctrine into the light—by making clear that whether probable cause exists depends in part on the degree of intrusion of a particular search or seizure—could help solve the vexing problems around seizure and search of cell phones. As with any physical evidence they seize in an investigation, police must generally have probable cause to seize a cell phone that they believe contains evidence of a crime.16 16.See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). There are some limited circumstances in which the seizure of physical evidence need not be based on probable cause, such as in the course of an inventory search. See, e.g., Colorado v. Bertine, 479 U.S. 367, 371 (1987).Show More As the Supreme Court recognized in Riley v. California, “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”17 17.Riley v. California, 573 U.S. 373, 403 (2014).Show More Police may have reason to believe that some particular type of evidence may be stored in a cell phone, but does that give them license to search every part of the phone? And if it does, should it? Courts authorizing search warrants have grappled with this question and have come to differing opinions on whether the same evidence to seize a phone or search part of it would justify a search of the entire phone.18 18.See infra notes 239–41.Show More Recognition of the Fourth Amendment’s hidden intrusion doctrine would help resolve this tension, requiring more evidence to justify a search of a phone than a seizure of a phone.

In a world in which emerging technologies like facial recognition technology are implemented quickly, often before any meaningful analysis of their reliability or risks, or where such technologies allow police to glean an entirely different degree of information about individuals’ private lives as done through phone searches, courts and policy-makers should be willing to move more slowly. This Article argues that in light of the Supreme Court’s hidden intrusion doctrine, they must move more slowly, and it proposes an approach that I call “graduated probable cause.” Under this approach, to comply with the (previously hidden, now explicit) intrusion doctrine, police would have to collect more or stronger evidence to justify greater intrusions like an arrest or a search of a home. If they had less evidence, or less reliable evidence, they could conduct a lesser intrusion, such as the search of a car or seizure of a cell phone, as an intermediate step. Such a process would maintain law enforcement flexibility, but also protect individuals’ privacy and liberty interests in the face of a constantly changing technological landscape.

This Article proceeds in four Parts. In Part I, I provide an overview of probable cause, examining both how the Supreme Court has defined the standard and how previous scholars have attempted to untangle that messy doctrine, to illustrate that Supreme Court probable cause precedent already implicitly considers the degree of intrusion a particular search or seizure makes into an individual’s privacy or liberty. In Part II, I examine case law from lower federal courts and state courts to demonstrate how, despite broad statements about a unitary standard, courts have already drawn distinctions in practice about the quantum of evidence necessary to provide probable cause based on the degree of intrusion. I also demonstrate how police trainings and policies can either reinforce the idea of a unitary standard to preserve police discretion or provide a model demonstrating the workability of a probable cause analysis that does include consideration of the degree of intrusion. In Part III, I examine in depth the case studies of facial recognition software and phone searches to demonstrate the confusion created by a unitary probable cause standard and the ways in which explicit consideration of the degree of intrusion could improve probable cause analysis in a rapidly changing digital environment. In Part IV, I articulate possible doctrinal and policy solutions for rearticulating the probable cause standard based on the degree of intrusion. Acknowledging that the degree of intrusion is already implicitly part of the analysis, I argue for explicitly incorporating it into the totality of the circumstances analysis that courts already apply. In other words, the courts do not need a new framework; they just need to honestly articulate the interest balancing that already drives decisions. I also set forth policy proposals for police, based on a graduated approach to investigation already endorsed by some law enforcement agencies, that would direct police to first conduct less intrusive searches and seizures in circumstances where they are relying on less, or less reliable, evidence.

  1.  Eyal Press, Does A.I. Lead Police to Ignore Contradictory Evidence?, New Yorker (Nov. 13, 2023), https://www.newyorker.com/magazine/2023/11/20/does-a-i-lead-police-to-ignore-contradictory-evidence. ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Id. Police also showed the surveillance photograph from the assault to Mr. Sawyer’s probation officer, who at first said he believed the photo was of Mr. Sawyer. Id. The probation officer, however, was told before he made the identification that Mr. Sawyer had been identified by facial recognition. Id. In addition, he had only met Mr. Sawyer wearing a COVID pandemic-era mask. Id. The probation officer later questioned his own identification and reached out to police to say that he had changed his mind—he no longer thought the surveillance image depicted Mr. Sawyer. Id. ↑
  5.  U.S. Const. amend. IV (emphasis added). ↑
  6.  In this Article, I focus only on the Fourth Amendment intrusions that rely on probable cause to demonstrate how that analysis also includes the degree of intrusion, even though the Supreme Court does not explicitly acknowledge it as it does in the reasonable suspicion context. There are other types of search and seizure that do not require probable cause, such as searches incident to a lawful arrest, inventory searches, and sobriety checkpoints, which are not justified by any degree of suspicion that a specific person has committed a crime, see infra notes 16, 69, 104 and accompanying text, and so-called Terry stops, which are supported by reasonable suspicion, a lower standard than probable cause. See infra note 37. ↑
  7.  Law enforcement may also collect evidence through many different types of actions that require little, if any, individualized suspicion that evidence will be found in a particular place. See, e.g., United States v. Tuggle, 4 F.4th 505, 510–11 (7th Cir. 2021); Smith v. Maryland, 442 U.S. 735, 745–46 (1979); 18 U.S.C. § 2703(d) (allowing disclosure of certain electronic communications based on the government’s representation that records are “relevant and material to an ongoing criminal investigation”). Nevertheless, as discussed elsewhere in this Article, the probable cause standard is required for many of the actions law enforcement conduct that most deeply intrude into individuals’ privacy. See infra Section I.A. ↑
  8.  See, e.g., Maryland v. Pringle, 540 U.S. 366, 368 (2003). Notably, police do not need a warrant to arrest someone in public, as long as the arrest is based on probable cause. United States v. Watson, 423 U.S. 411, 423–24 (1976). ↑
  9.  See, e.g., Illinois v. Gates, 462 U.S. 213, 246 (1983). ↑
  10.  See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). Probable cause is also the standard for many other iterations of these basic intrusions. See infra notes 20–25 and accompanying text. ↑
  11.  See 2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 3.3(a), at 118 n.8 (4th ed. 2015) (“Thus, in Spinelli v. United States, 393 U.S. 410 . . . (1969), where the issue was whether the challenged search warrant had been issued on probable cause, the Court found its earlier decision in Draper v. United States, 358 U.S. 307 . . . (1959), involving grounds to arrest, to be a ‘suitable benchmark’ for resolving that issue. Similarly, Illinois v. Gates, 462 U.S. 213 . . . (1983), which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well. State v. Schroeder, 450 N.W.2d 423 (N.D. 1990).”). The treatise authors note that the question of “probable cause of what” will differ in various contexts, but the general quantum of evidence and the analysis is the same. Id. § 3.3(a). See also Craig S. Lerner, The Reasonableness of Probable Cause, 81 Tex. L. Rev. 951, 953–54 (2003) (“[P]robable cause is widely viewed in the legal community as a fixed standard.”). ↑
  12.  See Gates, 462 U.S. at 246. ↑
  13.  See Section I.C. ↑
  14.  See Christopher Slobogin, Let’s Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 St. John’s L. Rev. 1053, 1053–54 (1998) [hereinafter Slobogin, Let’s Not Bury Terry] (“That framework, which I call the proportionality principle, is very simple: A search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action.”); Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1343 (2020). Over thirty years ago, Christopher Slobogin recognized the value of incorporating the degree of intrusion into search and seizure analysis in his article imagining how the government would consider a search and seizure doctrine if the Fourth Amendment did not exist. See Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 49–50 (1991) [hereinafter Slobogin, The World Without a Fourth Amendment]. Slobogin argued that the “proportionality principle” was not part of existing Fourth Amendment doctrine but represented the proper balance of interests between the State and the populace. Id. (“Put another way, because the cost to individual interests of a mistake by the police is greatest when the intrusion is greatest, and diminishes as the intrusion lessens, the tolerance for such mistakes should vary inversely with the level of intrusion. Note further that the cost to the state of a police mistake is also greatest when the intrusion is greatest, because the public is more likely to perceive unnecessary police intrusions as illegitimate when they are significant.” (emphasis omitted)). This Article argues that Slobogin’s “proportionality principle” is already being applied by the courts, even if it has never been explicitly incorporated into Fourth Amendment doctrine. ↑
  15.  See infra Section II.A. ↑
  16.  See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). There are some limited circumstances in which the seizure of physical evidence need not be based on probable cause, such as in the course of an inventory search. See, e.g., Colorado v. Bertine, 479 U.S. 367, 371 (1987). ↑
  17.  Riley v. California, 573 U.S. 373, 403 (2014). ↑
  18.  See infra notes 239–41. ↑
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