Article

The Federal Government’s Role in Local Policing

For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or at all. States and localities often lack the necessary capacity and expertise to change policing, and many states and localities lack the will. This Article argues for federal intervention and describes what that intervention should look like.

The Article begins by describing three paradigmatic areas of local policing that require federal intervention to create real change: excessive use of force, racial discrimination, and the unregulated use of surveillance technologies. Because state and local governments are either unable or unwilling to address these problems alone, the federal government should intervene to identify and enforce minimum standards, develop best practices, collect data, and distribute resources nationwide.

Regrettably, Congress has failed to act adequately to improve local policing for the better, although it has tried to encourage reform through the use of its Spending Power. This Article argues that Congress should utilize its regulatory powers under Section 5 of the Fourteenth Amendment and the Commerce Clause to address these paradigmatic problem areas, and it explains how this can be done consistently with Supreme Court doctrine.

Alongside—or in the absence of—congressional action, the executive branch has the power and responsibility to act to address policing’s harms. The Article explains that, though indirect, the President wields considerable power to influence policing by setting policy, implementing federal programs, enforcing civil rights, and supervising federal law enforcement. Although the executive branch should use this power to promote local policing that is effective, fair, and accountable, and that minimizes harm, administration after administration has failed to do so consistently and also has failed to hold federal law enforcement to these standards. Recent executive branch efforts have improved the situation, but there still exists a gaping chasm between how the federal government should be influencing local policing and how it is doing so today.

Introduction

23,0000 > 18,000 > 50 > 1. That is the mathematics of transforming American policing. Just under 23,000 cities and counties, 18,000 police departments, 50 states.1 1.These numbers obviously are approximations and vary from year to year. See Press Release, U.S. Census Bureau, U.S. Census Bureau Reports There Are 89,004 Local Governments in the United States (Aug. 30, 2012), https://www.census.gov/newsroom/‌releases/archives/governments/cb12-161.html [https://perma.cc/HJH6-QHV7] (number of cities and counties in 2012 Census); Duren Banks, Joshua Hendrix, Matthew Hickman & Tracey Kyckelhahn, Bureau of Just. Stats., U.S. Dep’t of Just., National Sources of Law Enforcement Employment Data 1 (2016), https://bjs.ojp.gov/content/pub/pdf/nsleed.pdf [https://perma.cc/6ZJW-8RCF] (reporting that there are about 18,000 police departments).Show More And one federal government. The point seems obvious. If the goal is to change policing for the better, mustering the authority of the federal government can provide an enormous fulcrum.

Even if every one of those 23,000 cities and counties and 18,000 agencies were trying to make policing fairer and less harmful, they could not do so by themselves. Some are far too small to have the expertise or resources to do so. More than eighty-five percent of local police departments and three-quarters of sheriffs’ offices have fewer than fifty officers.2 2.See Sean E. Goodison, Bureau of Just. Stats., U.S. Dep’t of Just., Local Police Departments Personnel, 2020, at 3 (2022) [hereinafter Goodison, Local Police Departments Personnel], https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/lpdp20.pdf [https://perma.‌cc/4MUQ-8KHV]; Connor Brooks, Bureau of Just. Stats., U.S. Dep’t of Just., Sheriffs’ Offices Personnel, 2020, at 3 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/‌document/sop20.pdf [https://perma.cc/A5NL-X8WY]. Maria Ponomarenko has provided one of the best accounts of the challenges of small agencies. See generally Maria Ponomarenko, The Small Agency Problem in American Policing, 98 N.Y.U. L. Rev. (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4537989 [https://perma.cc/J3E3-K9‌CN].Show More Yet, large jurisdictions struggle as well, and there is little doubt why. Most agencies lack the capacity to assess and adopt best practices without help. Or collect and share information in a consistent manner. Or attend to the interests of those most affected by policing in the face of other pressures and priorities. The simple fact is that even the most willing of states and localities cannot articulate or enforce national values and standards or coordinate easily across state lines. Only the federal government can do this.

Realistically, though, not all jurisdictions are focused on eliminating the harm in policing. Some are. Some states have pursued legislative or other changes to improve policing, and some states have done enough of this to plainly be taking the endeavor seriously.3 3.See, e.g., Jennifer Brown & Jesse Paul, Colorado Governor Signs Sweeping Police Accountability Bill into Law. Here’s How It Will Change Law Enforcement., Colo. Sun (June 19, 2020, 9:53 AM), https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ [https://perma.cc/JNV4-9KM8]; Michael Levenson & Bryan Pietsch, Maryland Passes Sweeping Police Reform Legislation, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/2021/04/10/us/maryland-police-reform.html [https://perma.cc/JY‌8W-ZL89]; Ned Oliver, Police Reforms Go into Effect in Virginia, Va. Mercury (Mar. 2, 2021, 12:05 AM), https://www.virginiamercury.com/blog-va/police-reforms-go-into-effect-in-virginia/ [https://perma.cc/V82Q-GGJK].Show More Overall, however, the spate of enactments since the nation’s response to the murder of George Floyd tend to be piecemeal at best.4 4.See, e.g., Liz Crampton, States Passed 243 Policing Bills—and Left Activists Wanting, Politico (May 26, 2021, 4:30 AM), https://www.politico.com/news/2021/05/26/states-policing-bills-490850 [https://perma.cc/D2CW-NHCN] (reporting activist frustration regarding limited reforms after George Floyd’s murder); Mark Berman & David Nakamura, From George Floyd to Tyre Nichols, Pleas for Police Reform Meet Bleak Reality, Wash. Post (Feb. 2, 2023, 7:05 PM), https://www.washingtonpost.com/national-security/2023/02/02/‌memphis-tyre-nichols-police-reform/ [https://perma.cc/XUT6-R7B7] (finding only a “patchwork series of reforms . . . scattered across some of America’s thousands of local police departments” while a “comprehensive approach remains out of reach”); Denise Lavoie, Tatyana Monnay & Juliette Rihl, Some States Are Struggling to Implement Policing Reforms Passed After George Floyd’s Murder, PBS NewsHour (Oct. 31, 2022, 11:50 AM), https://www.pbs.org/newshour/nation/some-states-are-struggling-to-implement-policing-reforms-passed-after-george-floyds-murder [https://perma.cc/7KPH-PQ55] (reporting on difficulties with implementing limited reforms).Show More Still, other jurisdictions have done less to increase fairness and reduce harm, as the horrific murder of Tyre Nichols by the “Scorpion Unit” in Memphis suggests.5 5.Even calling a street policing team “Scorpion” when it is charged with making numerous traffic stops underscores the problem. See Steve Eder et al., Muscle Cars, Balaclavas and Fists: How the Scorpions Rolled Through Memphis, N.Y. Times, https://www.nytimes.com/2023/‌02/04/us/memphis-police-scorpion.html [https://perma.cc/T2KX-JA2J] (Mar. 1, 2023) (describing the aggressive tactics of the Scorpion squad).Show More The fervor for police reform that began after George Floyd’s murder itself has cooled, and the national narrative—accurate or otherwise—shifted to another wave of rising crime.6 6.See, e.g., David A. Graham, How Criminal-Justice Reform Fell Apart, Atlantic (May 26, 2022), https://www.theatlantic.com/ideas/archive/2022/05/george-floyd-anniversary-police-reform-violent-crime/630174/ [https://perma.cc/4Q4A-E33M] (describing how rising crime rattled Americans’ confidence in police reform).Show More Only the federal government has the capacity to protect constitutional rights in the face of local diffidence or recalcitrance. That is its job.

If we really care about addressing the many serious problems with policing, at least for some aspects it will be faster and more effective to adopt one set of changes rather than 50, 18,000, or 24,000. If money and might are needed, the federal government has them. Yet the federal government’s resources and heft too often have been badly deployed.

Here, we offer some needed direction for federal involvement in local policing. We do that for Congress, which all too rarely has exercised its authority to set national rules for policing, or even authorized the executive branch to do so. And we do it for the executive branch, which, even with the existing authority it has, could do much more. We elaborate upon the need for national standards in some areas of policing, the value of information collection, and the utility of technical assistance and training, and call for more thought about how the federal government’s enforcement power is utilized. We are critical of the Supreme Court’s jurisprudence, to the extent it stands in the way.

None of what we suggest here is rocket science, however, which raises the question why the federal government’s performance in police reform has been so anemic. For that reason, besides putting forward an affirmative agenda, we devote substantial time to four explanations for why the federal government has not done its job. We cannot repair them all, but we can shine a light on them, offer pushback, and—at times—antidotes.

The first is a lack of political will. Federal authorities could address almost everything we suggest here, even in the face of some problematic Supreme Court jurisprudence. They simply seem not to be able to muster the wherewithal to do so. After George Floyd’s murder, Congress considered important legislation.7 7.See, e.g., Alexandra Hutzler, What Is the George Floyd Justice in Policing Act?, ABC News (Feb. 2, 2023, 1:49 PM), https://abcnews.go.com/Politics/george-floyd-justice-policing-act/story?id=96851132 [https://perma.cc/43J5-WQZ4] (explaining legislation proposed in Congress after George Floyd’s murder that was designed to address police misconduct, racial profiling, and use of force).Show More It was not unproblematic, and it was not enough, but it would have been a notable start. It went nowhere.8 8.George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong.Show More

You could think Congress failed to act because the public lost interest. Congress inevitably follows swings in public opinion.9 9.SeePaul Burstein, American Public Opinion, Advocacy, and Policy in Congress 46–49 (2014) (examining numerous research methodologies and concluding that “we find repeatedly that opinion influences policy” at both the federal and state levels).Show More In 2020, the public favored police reform.10 10.See Pew Rsch. Ctr., Majority of Public Favors Giving Civilians the Power to Sue Police Officers for Misconduct 1 (2020), https://www.pewresearch.org/politics/wp-content/uploads/‌sites/4/2020/07/PP_2020.07.09_Qualified-Immunity_FINAL.pdf [https://perma.cc/4U3U-CZTL] (finding that “[t]wo-thirds of Americans (66%) say that civilians need to have the power to sue police officers to hold them accountable for misconduct”); Steve Crabtree, Most Americans Say Policing Needs ‘Major Changes,’ Gallup (July 22, 2020), https://news.gallup.‌com/poll/315962/americans-say-policing-needs-major-changes.aspx [https://perma.cc/4NUJ-79F3] (finding that “58% of Americans say policing needs major changes”).Show More By 2022 they were concerned about crime.11 11.SeeJohn Gramlich, Violent Crime Is a Key Midterm Voting Issue, But What Does the Data Say?, Pew Rsch. Ctr. (Oct. 31, 2022), https://www.pewresearch.org/short-reads/2022/10/‌31/violent-crime-is-a-key-midterm-voting-issue-but-what-does-the-data-say/ [https://perma.‌cc/GDU3-TBDS] (“Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year’s congressional elections.”); Megan Brenan, Record-High 56% in U.S. Perceive Local Crime Has Increased, Gallup (Oct. 28, 2022), https://news.gallup.com/poll/404048/record-high-perceive-local-crime-increased.aspx [https://perma.cc/6EMF-PMGK] (“The 56% of U.S. adults who report an increase in crime where they live . . . is the highest . . . in Gallup’s trend dating back to 1972.”).Show More In that case, one could argue Congress’s lack of political will reflected political responsiveness. But if that is what Congress was thinking, Congress was wrong. As the public recognizes, effective and accountable policing need not be in tension. Even as crime rates rose in 2021 and 2022, support for some forms of reform—and for the Black Lives Matter movement, for that matter—remained.12 12.See Justin McCarthy, Americans Remain Steadfast on Policing Reform Needs in 2022, Gallup (May 27, 2022), https://news.gallup.com/poll/393119/americans-remain-steadfast-policing-reform-needs-2022.aspx [https://perma.cc/8QQ4-YGW5] (“[H]alf of Americans (50%) support ‘major changes’ to policing in the U.S., and another 39% favor ‘minor changes.’”); Jennifer de Pinto, Anthony Salvanto, Fred Backus & Kabir Khanna, Most Americans Think Changes to Policing Are Necessary—CBS News Poll, CBS News (Feb. 5, 2023, 9:30 AM), https://www.cbsnews.com/news/policing-opinion-poll-2023-02-05/ [https://perma.cc/X65Y-7ZH6] (reporting that 47% of Americans support “major changes” to police practices, and 42% support “minor changes”); Juliana Menasce Horowitz, Kiley Hurst & Dana Braga, Support for the Black Lives Matter Movement Has Dropped Considerably From Its Peak in 2020, Pew Rsch. Ctr. (June 14, 2023), https://www.pewresearch.org/social-trends/2023/06/14/support-for-the-black-lives-matter-movement-has-dropped-considerably-from-its-peak-in-2020/ [https://perma.cc/P4JZ-QX93] (finding that despite decline in support, Black Lives Matter retains the support of fifty-one percent of Americans).Show More Polling shows widespread, bipartisan, non-ideological support for using first responders rather than police to address many problems such as mental health.13 13.SeeNatasha Chisholm & Anika Dandekar, Majorities of Voters Support Criminal Charges for Those Involved in Tyre Nichols’ Killing and a Range of Police Reforms, Data for Progress (Mar. 2, 2023), https://www.dataforprogress.org/blog/2023/3/2/majorities-of-voters-support-criminal-charges-for-those-involved-in-tyre-nichols-killing-and-a-range-of-policing-reforms [https://perma.cc/WFS2-PTQR] (finding that Americans prefer the use of first responders for mental health issues by a fifty-three-point margin); Justine Coleman, Most Say Police Shouldn’t Be Primary Responders for Mental Health Crises: NAMI Poll, Hill (Nov. 15, 2021, 11:10 AM), https://thehill.com/policy/healthcare/581556-majority-say-professionals-should-respond-to-mental-health-crises-instead/ [https://perma.cc/S7QW-WATB] (“[N]early 80 percent of respondents said mental health professionals, not police, should respond to mental health and suicide situations.”).Show More

Which brings us to the second explanation. Opponents of federal reform frequently claim that principles of constitutional federalism stand in the way.14 14.Much literature is devoted to parsing the federalism concerns raised as a result of congressional regulation of policing. See, e.g., W. Paul Koenig, Does Congress Abuse its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State’s Compliance with “Megan’s Law”?, 88 J. Crim. L. & Criminology 721, 741 (1998).Show More Some argue that it is improper for the federal government to tell local police how to do their job.15 15.See, e.g., 166 Cong. Rec. H2460 (daily ed. June 25, 2020) (statement of Rep. John H. Rutherford) (“We cannot be so eager to make major policing reforms on the Federal level that we overcorrect and prevent good officers on the street from being able to do their jobs.”); Kathleen F. Brickey, The Commerce Clause and Federalized Crime: A Tale of Two Thieves, 543 Annals Am. Acad. Pol. & Soc. Sci. 27, 38 (1996) (noting that the National Association of Attorneys General and the National Conference of State Legislatures “have urged Congress to recognize that primary responsibility for criminal law enforcement belongs to the states”); William Parlett, Criminal Law and Cooperative Federalism, 56 Am. Crim. L. Rev. 1663, 1665–66 (2019) (describing how cooperative prosecution programs concentrate too much power in the hands of federal executive branch officials and rob state and local communities of their “voice”).Show More And others go further, questioning whether the federal government has power under the Constitution to set the rules for policing.16 16.See, e.g., Manu Raju, Clare Foran & Ted Barrett, GOP and Democrats Clash Over Police Reform in Congress as Pressure for Action Mounts, CNN (June 16, 2020, 8:28 PM), https://www.cnn.com/2020/06/16/politics/police-reform-senate-republicans/index.html [https://perma.cc/KX7M-ZDNM] (reporting then-Senate Majority Leader Mitch McConnell’s opposition to federal police reform efforts as “overreach” and an attempt to “federalize all of these issues”); see also Richard A. Epstein, The Supreme Court, 1987 Term—Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 45–46, 104 (1988) (raising concerns that Congress will use its spending powers to subvert the Twenty-First Amendment and Tenth Amendment such that “a presumption of distrust should attach to all government action”).Show More

As this Article makes clear, these views about federalism’s limits on federal power are wrong. Under our federal system, and the Supreme Court’s somewhat baroque federalism doctrine, Congress may have to choose with some care the right font of power to meet the particular problem. For racial discrimination and use of force, Section 5 of the Fourteenth Amendment should suffice. For surveillance technologies, resorting to the Commerce Clause in most cases would do the trick. Some approaches to regulating policing may escape Congress’s grasp, but for the most part, Congress has ample constitutional power to step in where it would be helpful to do so. And, of course, national standards and approaches do not eliminate state variation; they simply provide a floor.

The best evidence that federalism-based objections have little to support them is that the federal government already intervenes in deeply consequential ways to shape policing. It empowers local officers by deputizing them to federal ends. It pushes local agencies to pursue national public safety priorities, whether they be street-level drug enforcement, gun crime, or something else.17 17.See Roger J. Miner, The Consequences of Federalizing Criminal Law, 4 Crim. Just.16, 18 (1989) (describing expansion of federal jurisdiction to crimes including robbery, extortion, loan-sharking, and drug trafficking); Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, 42 (1996) (“Congress enacted a series of federal crimes that targeted violence against private individuals . . . to assert jurisdiction over an increasingly broad range of conduct clearly within the traditional police powers of the states.”); Partlett, supra note 15, at 1663 (“Cooperative federalism is now commonplace in the prosecution of street-level drug and gun crime . . . , [which] . . . weakens the ability of states to function as political entities that can hold their law enforcement officers accountable in an area of traditional state police power.”).Show More It provides local police with militarized equipment and tools for surveillance and incorporates their work into federal databases.18 18.See Allison McCartney, Paul Murray & Mira Rojanasakul, After Pouring Billions into Militarization of U.S. Cops, Congress Weighs Limits, Bloomberg (July 1, 2020), https://www.bloomberg.com/graphics/2020-police-military-equipment/ [https://perma.cc/‌C7V9-JUNF]; Jay Stanley & Bennett Stein, FOIA Documents Reveal Massive DEA Program to Record Americans’ Whereabouts with License Plate Readers, ACLU, https://www.aclu.org‌/news/smart-justice/foia-documents-reveal-massive-dea-program-record-americans-whereab‌outs-license [https://perma.cc/ZZ8D-UKDT] (Jan. 28, 2015) (explaining that the Drug Enforcement Administration (“DEA”) partners with state and local law enforcement agencies around the country to collect license plate location data for its database).Show More It trains officers to engage in deleterious practices like widespread pretextual traffic stops.19 19.See Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. (forthcoming 2024) (manuscript at 1–2) [hereinafter Heydari, The Invisible Driver of Policing], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4369747 [https://perma.cc/5FYF-MZ‌FW].Show More The federal government meddles aplenty in local law enforcement without much objection from those who worry aloud about the federal government interfering in local policing. It seems only to rouse disagreement if the suggestion is the federal government should work to make policing more responsive to policed communities, more equitable, and less harmful. That one-way ratchet rests on an implausible account of “Our Federalism.”20 20.Younger v. Harris, 401 U.S. 37, 44 (1971) (“[T]he notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways . . . is referred to by many as ‘Our Federalism’ . . . .”).Show More

The federal government’s already ample role in local policing highlights the third explanation for why it has not done what is needed to transform policing for the better, which is that some parts of the federal government themselves are resistant to change—to the point that the federal government is complicit in many of policing’s problems. When it comes to policing, there is a deep tension within the federal government as to what its role should be. On one hand, it has an obligation to protect civil rights and racial equality, a special role in preserving privacy, and the sole power to promote values such as democratic accountability and transparency at a national level. Some elements of the federal government pursue these ends, such as the Civil Rights Division and its Special Litigation Section.21 21.See Special Litigation Section, U.S. Dep’t of Just.: C.R. Div., https://www.justice.gov/‌crt/special-litigation-section [https://perma.cc/268W-7983] (last visited Sept. 24, 2023).Show More On the other hand, the federal government operates an enormous law enforcement apparatus, with dozens of agencies that depend on state and local cooperation.22 22.See Law Enforcement, Bureau of Just. Stats. (Feb. 18, 2021), https:/bjs.ojp.gov/topics/‌law-enforcement#recent-faqs-how-many-full-time-federal-law-enforcement [https://perma.c‌c/NJQ7-WNLX] (estimating that in 2020, there were 137,000 full-time federal law enforcement officers); see also Lisa M. Seghetti, Cong. Rsch. Serv., RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement 3 (2009), https:/www.everycrsreport.com/files/20090311_RL32270_a7bbe8763684424b48f0d4b1d61‌c92412ac50d0c.pdf [https://perma.cc/N5AR-EBMB] (providing examples of cooperation between federal and local law enforcement on immigration); Michael M. Hethmon, The Chimera and the Cop: Local Enforcement of Federal Immigration Law, 8 UDC/DCSL L. Rev. 83, 139 (2004) (detailing high level of federal-local law enforcement cooperation).Show More That law enforcement apparatus does not seem particularly reform-minded; indeed, some federal agencies such as the Drug Enforcement Administration, Customs and Border Protection, and Immigration and Customs Enforcement are themselves particularly concerning.23 23.See, e.g., US Records Show Physical, Sexual Abuse at Border, Hum. Rts. Watch (Oct. 21, 2021, 7:00 AM), https://www.hrw.org/news/2021/10/21/us-records-show-physical-sexua‌l-abuse-border [https://perma.cc/Z97M-W5F5] (reporting on abuse by Customs and Border Protection officers, Border Patrol agents, and Immigration and Customs Enforcement officials); Stan Wilson, Daniel Chong, Forgotten in DEA Cell, Settles Suit for $4.1 Million, CNN (Aug. 1, 2013, 7:38 AM), https://www.cnn.com/2013/07/30/justice/california-dea-settle‌ment/ [https://perma.cc/B9XE-EP9P] (finding that DEA agents detained a student in a windowless cell with no food or water for five days).Show More Federal law enforcement has too often pursued its public safety priorities, such as the wars on crime and terrorism, and federal immigration enforcement, with little attention to the harms it causes. In short, while some parts of the federal government encourage reform, other parts of the federal government work against it.

The federal government—and many federal agencies—bear responsibility for many of the harms of policing. The federally driven War on Drugs garnered little in the way of success while shredding constitutional liberties and contributing to mass incarceration.24 24.See Aaron Morrison, 50-Year War on Drugs Imprisoned Millions of Black Americans, PBS NewsHour (July 26, 2021, 12:55 PM), https://www.pbs.org/newshour/nation/50-year-war-on-drugs-imprisoned-millions-of-black-americans [https://perma.cc/DZV2-H4DR] (noting that the federal government’s policies pursuant to the War on Drugs resulted in the mass incarceration of millions of Americans and undermined their access to voting and gun rights).Show More Today, asset forfeiture drives unjustifiable policing practices, yet federal agencies have done little to curtail it and much to promote it.25 25.See Jennifer McDonald & Dick M. Carpenter II, Frustrating, Corrupt, Unfair: Civil Forfeiture in the Words of Its Victims, Inst. for Just. (Sept. 28, 2021), https://ij.org/report/‌frustrating-corrupt-unfair/ [https://perma.cc/US2N-2YLE] (“Most states across the country, not to mention the federal government, continue to enforce civil forfeiture laws that offer few due process protections and promote policing for profit.”).Show More Tyre Nichols’s murder brought widespread public attention to the problem of pretextual traffic stops, but the federal government has and continues to promote them, causing harm and racial disparities.26 26.See generally Farhang Heydari, Rethinking Federal Inducement of Pretext Stops, 2024 Wis. L. Rev. (forthcoming) [hereinafter Heydari, Rethinking Federal Inducement of Pretext Stops] (cataloguing the ways in which federal agencies promote pretextual traffic stops); Heydari, The Invisible Driver of Policing, supra note 19 (calling attention to the National Highway and Traffic Safety Agency as a proponent of pretextual traffic stops).Show More The militarization of domestic policing is deeply troubling in a free society, and the federal government has driven that. Technology-driven surveillance is itself a threat to democracy and individual rights, and very much on the rise, and yet again federal agencies promote, supply, and fund these technologies with few guardrails on their use.27 27.See Chris Baumohl, Two Years In, COVID-19 Relief Money Fueling Rise of Police Surveillance, Elec. Priv. Info. Ctr. (Mar. 9, 2023), https://epic.org/two-years-in-covid-19-relie‌f-money-fueling-rise-of-police-surveillance/ [https://perma.cc/5VLG-Z5RM] (explaining that the expansion of surveillance technologies results from “federal funding, which lowers the cost of acquisition at the state and local level”).Show More One could go on and on.

To be clear, our claim here assuredly is not that the federal government should not help state and local governments in crime fighting. Small communities need help to be effective in addressing crime, all departments benefit from federal expertise about what works, and there are elements of crime that are both national and transnational. Each of these provides a classic justification for federal involvement in primarily local enterprises. It may well be warranted beyond that. Our claim, rather, is that the federal government must be concerned both with ensuring public safety from crime and ensuring public safety from the harms of policing. The simple fact is that policing is unlikely to be effective over time unless it also is fair, harm-minimizing, and accountable—and even if it could remain unaccountable, that simply is inconsistent with this nation’s broader democratic values. The War on Drugs and federally supported asset forfeiture are indicative of a distorted sense of balance, if not one altogether missing.

Which brings us to the final explanation, and one on which we have a great deal to say, which is that the federal government has over-relied on an approach to addressing the harms of policing that rests in conditions on grants and civil rights enforcement, while undervaluing other approaches such as standard setting and regulation, or even ensuring that the federal government’s policing strategy is internally coherent. Do not get us wrong—enforcement is essential to ensuring the rules of the road obtain adherence. But what the federal government has done for too long is not set out the rules of the road, relying instead on the minimalist notion of policing regulation set out in the Supreme Court’s constitutional jurisprudence.28 28.But see Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945, 32961 (May 25, 2022) (requiring the Attorney General to develop standards for accreditation of police departments by independent credentialing agencies and to determine if discretionary grants should depend on accreditation).Show More Yet, as every first-year law student learns, the Constitution is a floor; it indicates what must be done, but often lacks any notion of aspiration or best practices.

The federal government’s lackluster role in improving policing is in part a result of its piecemeal, reactive approach. When bad things in policing happen, for example, the Civil Rights Division prosecutes individual officers. Or it investigates and sues some deeply troubled departments.29 29.See C.R. Div., U.S. Dep’t of Just., The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994–Present, at 3 (2017) [hereinafter C.R. Div., Police Reform Work: 1994–Present], https://www.justice.gov/crt/file/922421/download [https://perma.cc/LQN3-RME7] (describing the work of the Special Litigation Section).Show More Enforcement is important, though it could be done more strategically.30 30.See Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 22, 26–27, 57–58 (2009) [hereinafter Harmon, Promoting Civil Rights] (arguing that the use of consent decrees, which frequently include certain requirements, such as training and policies on use of force, can incentivize other agencies to adopt such reforms); Allison T. Chappell, Consent Decrees and Police Reform: A Piece of the Puzzle or a Puzzling Policy, 16 Criminology & Pub. Pol’y 571, 572 (2017) (finding that consent decrees can lead to policy change because police departments seek to avoid DOJ scrutiny).Show More But litigating our way out of policing’s problems is a doomed enterprise. The Department of Justice (“DOJ”) only can target a few troubled agencies or officers. The federal government also encourages some reform through grant programs and their conditions. But these efforts lack coherence, consistency, and comprehensiveness. They do far less than they ought.

Simply put, the federal government in the main has failed to set rules and standards that local policing agencies either must meet, or at least should aspire to meet.31 31.President Biden’s Executive Order (“EO”) has a provision fostering accreditation of policing agencies, which could be the beginning of standard setting, although those accreditation standards as adopted by DOJ were insufficiently demanding. See infra notes 354–55 and accompanying text.Show More It has not collected or even made possible uniformity in data so that we can identify problems in local policing, and their solutions. If anything became clear in the aftermath of the killing of George Floyd—and should have been clear long before—it is that policing needs to be regulated with clear front-end rules, or at least provided with coherent guidance. As we indicated, states have taken up some of the work, but in piecemeal fashion. The federal government could and should—and indeed must—do more to bring needed cohesion and real progress.

There is no gainsaying that President Biden’s May 2022 Executive Order (“EO”) on policing was a step in the right direction.32 32.Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945 (May 25, 2022).Show More It announced some efforts to bring federal agencies into line with best practices, some leadership in promoting nationwide accountability, and some effort to identify and promote best practices for local police departments. Even if radically incomplete, it was the most the nation ever has seen aspirationally about addressing real harms in policing. But orders are not action: a reform-oriented Trump order on policing had almost no effect.33 33.See Jon Schuppe, Trump Says His Policing Order Is a ‘Big Step.’ Activists Call It ‘Breadcrumbs.’, NBC News (June 17, 2020, 10:35 AM), https://www.nbcnews.com/news/us-news/trump-says-his-policing-order-big-step-activists-call-it-n1231269 [https://perma.cc/PR‌9G-ZQYR] (noting that Trump’s executive order concerning policing after George Floyd’s murder was “paltry”).Show More Only time will tell if the Biden Executive Order accomplishes what it set out to do.34 34.One year in, the federal government released a long list of the actions it had taken, and we do not mean in any way to minimize their import. See Fact Sheet: Biden-⁠Harris Administration Highlights Accomplishments on Anniversary of Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety, White House (May 25, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/25/fact-sheet-biden-harris-administration-highlights-accomplishments-on-anniversary-of-historic-executive-order-to-advance-effective-accountable-policing-and-strengthen-public-safety/ [https://perma.cc/U4HM-WNPR] (highlighting actions taken under EO 14,074, including the creation of the “National Law Enforcement Accountability Database,” the adoption of new federal law enforcement use of force policies, and grants to local law enforcement “to adopt and implement best practices” in policing). Every step in the right direction is a step in the right direction. Still, much of that list itself was a down payment on enormous work yet to be done.Show More And even if it does—there is plenty more to be done, as the EO itself acknowledges.35 35.See Exec. Order No. 14,074, 87 Fed. Reg. at 32945.Show More

This Article argues the federal government can and should foster change in policing and provides guidance as to what the federal government should do. The federal government has ample constitutional power to address the problems of local policing—sometimes acting along and sometimes in collaboration with state and local authorities. We at times suggest a regulatory approach, best achieved by setting rules and standards that guide local policing. We show how, when regulation would be inappropriate or ineffective, the federal government should use its other powers to achieve change. We strongly urge the federal government to adopt a coherent approach to policing—that, above all else, the federal government should stop using the power that it has in deleterious ways, exacerbating the problems of local policing even while claiming a desire to address them.

Part I of this Article is addressed to the question of need—where and why is federal intervention in local policing needed, and what should that federal role look like? It frames up three paradigmatic areas in which there is widespread consensus policing needs to change: excessive force by the police, racial discrimination in policing, and the use of surveillance technologies. It shows that state and local governments often are incapable of, or unwilling to, address the problems alone, thereby highlighting the vital role the federal government has to play. And it begins an exploration of what it is the federal government should do.

Part II turns to regulation and the role Congress should play in requiring better local policing. It sets out a minimal agenda for Congress in the three paradigmatic problem areas. But one cannot discuss congressional action without discussing constitutional power as well, thus implicating the Supreme Court. Part II acknowledges that Supreme Court precedent poses challenges to the exercise of federal power and critiques the doctrine accordingly. Still, it demonstrates that Congress has more than ample power to address what needs to be done. It explains how Congress could use this power to mitigate those problems of excessive force, undue surveillance, and racial injustice in policing.

Part III turns to the executive branch. If Congress does not act, or even if it does, the executive branch could do much with its discretion to set a national agenda, to enforce civil rights law, to implement federal programs, and to run federal law enforcement agencies to make policing better. The executive branch needs to promote a consistent, coherent approach to policing, one that supports policing that is fair, harm minimizing, and accountable as well as effective. But it also needs to stop doing things that make policing less equitable, less effective, and more harmful. Part III lays all this out.

The federal government is not going to fix everything that needs to be remedied around policing. But it could act to do less harm and reform policing substantially, even as it promotes effective efforts to address crime. It is time for federal officials at the legislative and executive level to take seriously their power and responsibility to address the harms of local policing.

  1.  These numbers obviously are approximations and vary from year to year. See Press Release, U.S. Census Bureau, U.S. Census Bureau Reports There Are 89,004 Local Governments in the United States (Aug. 30, 2012), https://www.census.gov/newsroom/‌releases/archives/governments/cb12-161.html [https://perma.cc/HJH6-QHV7] (number of cities and counties in 2012 Census); Duren Banks, Joshua Hendrix, Matthew Hickman & Tracey Kyckelhahn, Bureau of Just. Stats., U.S. Dep’t of Just., National Sources of Law Enforcement Employment Data 1 (2016), https://bjs.ojp.gov/content/pub/pdf/nsleed.pdf [https://perma.cc/6ZJW-8RCF] (reporting that there are about 18,000 police departments). ↑
  2.  See Sean E. Goodison, Bureau of Just. Stats., U.S. Dep’t of Just., Local Police Departments Personnel, 2020, at 3 (2022) [hereinafter Goodison, Local Police Departments Personnel], https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/lpdp20.pdf [https://perma.‌cc/4MUQ-8KHV]; Connor Brooks, Bureau of Just. Stats., U.S. Dep’t of Just., Sheriffs’ Offices Personnel, 2020, at 3 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/‌document/sop20.pdf [https://perma.cc/A5NL-X8WY]. Maria Ponomarenko has provided one of the best accounts of the challenges of small agencies. See generally Maria Ponomarenko, The Small Agency Problem in American Policing, 98 N.Y.U. L. Rev. (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4537989 [https://perma.cc/J3E3-K9‌CN]. ↑
  3.  See, e.g., Jennifer Brown & Jesse Paul, Colorado Governor Signs Sweeping Police Accountability Bill into Law. Here’s How It Will Change Law Enforcement., Colo. Sun (June 19, 2020, 9:53 AM), https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ [https://perma.cc/JNV4-9KM8]; Michael Levenson & Bryan Pietsch, Maryland Passes Sweeping Police Reform Legislation, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/2021/04/10/us/maryland-police-reform.html [https://perma.cc/JY‌8W-ZL89]; Ned Oliver, Police Reforms Go into Effect in Virginia, Va. Mercury (Mar. 2, 2021, 12:05 AM), https://www.virginiamercury.com/blog-va/police-reforms-go-into-effect-in-virginia/ [https://perma.cc/V82Q-GGJK]. ↑
  4.  See, e.g., Liz Crampton, States Passed 243 Policing Bills—and Left Activists Wanting, Politico (May 26, 2021, 4:30 AM), https://www.politico.com/news/2021/05/26/states-policing-bills-490850 [https://perma.cc/D2CW-NHCN] (reporting activist frustration regarding limited reforms after George Floyd’s murder); Mark Berman & David Nakamura, From George Floyd to Tyre Nichols, Pleas for Police Reform Meet Bleak Reality, Wash. Post (Feb. 2, 2023, 7:05 PM), https://www.washingtonpost.com/national-security/2023/02/02/‌memphis-tyre-nichols-police-reform/ [https://perma.cc/XUT6-R7B7] (finding only a “patchwork series of reforms . . . scattered across some of America’s thousands of local police departments” while a “comprehensive approach remains out of reach”); Denise Lavoie, Tatyana Monnay & Juliette Rihl, Some States Are Struggling to Implement Policing Reforms Passed After George Floyd’s Murder, PBS NewsHour (Oct. 31, 2022, 11:50 AM), https://www.pbs.org/newshour/nation/some-states-are-struggling-to-implement-policing-reforms-passed-after-george-floyds-murder [https://perma.cc/7KPH-PQ55] (reporting on difficulties with implementing limited reforms). ↑
  5.  Even calling a street policing team “Scorpion” when it is charged with making numerous traffic stops underscores the problem. See Steve Eder et al., Muscle Cars, Balaclavas and Fists: How the Scorpions Rolled Through Memphis, N.Y. Times, https://www.nytimes.com/2023/‌02/04/us/memphis-police-scorpion.html [https://perma.cc/T2KX-JA2J] (Mar. 1, 2023) (describing the aggressive tactics of the Scorpion squad). ↑
  6.  See, e.g., David A. Graham, How Criminal-Justice Reform Fell Apart, Atlantic (May 26, 2022), https://www.theatlantic.com/ideas/archive/2022/05/george-floyd-anniversary-police-reform-violent-crime/630174/ [https://perma.cc/4Q4A-E33M] (describing how rising crime rattled Americans’ confidence in police reform). ↑
  7.  See, e.g., Alexandra Hutzler, What Is the George Floyd Justice in Policing Act?, ABC News (Feb. 2, 2023, 1:49 PM), https://abcnews.go.com/Politics/george-floyd-justice-policing-act/story?id=96851132 [https://perma.cc/43J5-WQZ4] (explaining legislation proposed in Congress after George Floyd’s murder that was designed to address police misconduct, racial profiling, and use of force). ↑
  8.  George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. ↑
  9.  See Paul Burstein, American Public Opinion, Advocacy, and Policy in Congress 46–49 (2014) (examining numerous research methodologies and concluding that “we find repeatedly that opinion influences policy” at both the federal and state levels). ↑
  10.  See Pew Rsch. Ctr., Majority of Public Favors Giving Civilians the Power to Sue Police Officers for Misconduct 1 (2020), https://www.pewresearch.org/politics/wp-content/uploads/‌sites/4/2020/07/PP_2020.07.09_Qualified-Immunity_FINAL.pdf [https://perma.cc/4U3U-CZTL] (finding that “[t]wo-thirds of Americans (66%) say that civilians need to have the power to sue police officers to hold them accountable for misconduct”); Steve Crabtree, Most Americans Say Policing Needs ‘Major Changes,’ Gallup (July 22, 2020), https://news.gallup.‌com/poll/315962/americans-say-policing-needs-major-changes.aspx [https://perma.cc/4NUJ-79F3] (finding that “58% of Americans say policing needs major changes”). ↑
  11.  See John Gramlich, Violent Crime Is a Key Midterm Voting Issue, But What Does the Data Say?, Pew Rsch. Ctr. (Oct. 31, 2022), https://www.pewresearch.org/short-reads/2022/10/‌31/violent-crime-is-a-key-midterm-voting-issue-but-what-does-the-data-say/ [https://perma.‌cc/GDU3-TBDS] (“Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year’s congressional elections.”); Megan Brenan, Record-High 56% in U.S. Perceive Local Crime Has Increased, Gallup (Oct. 28, 2022), https://news.gallup.com/poll/404048/record-high-perceive-local-crime-increased.aspx [https://perma.cc/6EMF-PMGK] (“The 56% of U.S. adults who report an increase in crime where they live . . . is the highest . . . in Gallup’s trend dating back to 1972.”). ↑
  12.  See Justin McCarthy, Americans Remain Steadfast on Policing Reform Needs in 2022, Gallup (May 27, 2022), https://news.gallup.com/poll/393119/americans-remain-steadfast-policing-reform-needs-2022.aspx [https://perma.cc/8QQ4-YGW5] (“[H]alf of Americans (50%) support ‘major changes’ to policing in the U.S., and another 39% favor ‘minor changes.’”); Jennifer de Pinto, Anthony Salvanto, Fred Backus & Kabir Khanna, Most Americans Think Changes to Policing Are Necessary—CBS News Poll, CBS News (Feb. 5, 2023, 9:30 AM), https://www.cbsnews.com/news/policing-opinion-poll-2023-02-05/ [https://perma.cc/X65Y-7ZH6] (reporting that 47% of Americans support “major changes” to police practices, and 42% support “minor changes”); Juliana Menasce Horowitz, Kiley Hurst & Dana Braga, Support for the Black Lives Matter Movement Has Dropped Considerably From Its Peak in 2020, Pew Rsch. Ctr. (June 14, 2023), https://www.pewresearch.org/social-trends/2023/06/14/support-for-the-black-lives-matter-movement-has-dropped-considerably-from-its-peak-in-2020/ [https://perma.cc/P4JZ-QX93] (finding that despite decline in support, Black Lives Matter retains the support of fifty-one percent of Americans). ↑
  13.  See Natasha Chisholm & Anika Dandekar, Majorities of Voters Support Criminal Charges for Those Involved in Tyre Nichols’ Killing and a Range of Police Reforms, Data for Progress (Mar. 2, 2023), https://www.dataforprogress.org/blog/2023/3/2/majorities-of-voters-support-criminal-charges-for-those-involved-in-tyre-nichols-killing-and-a-range-of-policing-reforms [https://perma.cc/WFS2-PTQR] (finding that Americans prefer the use of first responders for mental health issues by a fifty-three-point margin); Justine Coleman, Most Say Police Shouldn’t Be Primary Responders for Mental Health Crises: NAMI Poll, Hill (Nov. 15, 2021, 11:10 AM), https://thehill.com/policy/healthcare/581556-majority-say-professionals-should-respond-to-mental-health-crises-instead/ [https://perma.cc/S7QW-WATB] (“[N]early 80 percent of respondents said mental health professionals, not police, should respond to mental health and suicide situations.”). ↑
  14.  Much literature is devoted to parsing the federalism concerns raised as a result of congressional regulation of policing. See, e.g., W. Paul Koenig, Does Congress Abuse its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State’s Compliance with “Megan’s Law”?, 88 J. Crim. L. & Criminology 721, 741 (1998). ↑
  15.  See, e.g., 166 Cong. Rec. H2460 (daily ed. June 25, 2020) (statement of Rep. John H. Rutherford) (“We cannot be so eager to make major policing reforms on the Federal level that we overcorrect and prevent good officers on the street from being able to do their jobs.”); Kathleen F. Brickey, The Commerce Clause and Federalized Crime: A Tale of Two Thieves, 543 Annals Am. Acad. Pol. & Soc. Sci. 27, 38 (1996) (noting that the National Association of Attorneys General and the National Conference of State Legislatures “have urged Congress to recognize that primary responsibility for criminal law enforcement belongs to the states”); William Parlett, Criminal Law and Cooperative Federalism, 56 Am. Crim. L. Rev. 1663, 1665–66 (2019) (describing how cooperative prosecution programs concentrate too much power in the hands of federal executive branch officials and rob state and local communities of their “voice”). ↑
  16.  See, e.g., Manu Raju, Clare Foran & Ted Barrett, GOP and Democrats Clash Over Police Reform in Congress as Pressure for Action Mounts, CNN (June 16, 2020, 8:28 PM), https://www.cnn.com/2020/06/16/politics/police-reform-senate-republicans/index.html [https://perma.cc/KX7M-ZDNM] (reporting then-Senate Majority Leader Mitch McConnell’s opposition to federal police reform efforts as “overreach” and an attempt to “federalize all of these issues”); see also Richard A. Epstein, The Supreme Court, 1987 Term—Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 45–46, 104 (1988) (raising concerns that Congress will use its spending powers to subvert the Twenty-First Amendment and Tenth Amendment such that “a presumption of distrust should attach to all government action”). ↑
  17.  See Roger J. Miner, The Consequences of Federalizing Criminal Law, 4 Crim. Just. 16, 18 (1989) (describing expansion of federal jurisdiction to crimes including robbery, extortion, loan-sharking, and drug trafficking); Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, 42 (1996) (“Congress enacted a series of federal crimes that targeted violence against private individuals . . . to assert jurisdiction over an increasingly broad range of conduct clearly within the traditional police powers of the states.”); Partlett, supra note 15, at 1663 (“Cooperative federalism is now commonplace in the prosecution of street-level drug and gun crime . . . , [which] . . . weakens the ability of states to function as political entities that can hold their law enforcement officers accountable in an area of traditional state police power.”). ↑
  18.  See Allison McCartney, Paul Murray & Mira Rojanasakul, After Pouring Billions into Militarization of U.S. Cops, Congress Weighs Limits, Bloomberg (July 1, 2020), https://www.bloomberg.com/graphics/2020-police-military-equipment/ [https://perma.cc/‌C7V9-JUNF]; Jay Stanley & Bennett Stein, FOIA Documents Reveal Massive DEA Program to Record Americans’ Whereabouts with License Plate Readers, ACLU, https://www.aclu.org‌/news/smart-justice/foia-documents-reveal-massive-dea-program-record-americans-whereab‌outs-license [https://perma.cc/ZZ8D-UKDT] (Jan. 28, 2015) (explaining that the Drug Enforcement Administration (“DEA”) partners with state and local law enforcement agencies around the country to collect license plate location data for its database). ↑
  19.  See Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. (forthcoming 2024) (manuscript at 1–2) [hereinafter Heydari, The Invisible Driver of Policing], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4369747 [https://perma.cc/5FYF-MZ‌FW]. ↑
  20.  Younger v. Harris, 401 U.S. 37, 44 (1971) (“[T]he notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways . . . is referred to by many as ‘Our Federalism’ . . . .”). ↑
  21.  See Special Litigation Section, U.S. Dep’t of Just.: C.R. Div., https://www.justice.gov/‌crt/special-litigation-section [https://perma.cc/268W-7983] (last visited Sept. 24, 2023). ↑
  22.  See Law Enforcement, Bureau of Just. Stats. (Feb. 18, 2021), https:/bjs.ojp.gov/topics/‌law-enforcement#recent-faqs-how-many-full-time-federal-law-enforcement [https://perma.c‌c/NJQ7-WNLX] (estimating that in 2020, there were 137,000 full-time federal law enforcement officers); see also Lisa M. Seghetti, Cong. Rsch. Serv., RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement 3 (2009), https:/www.everycrsreport.com/files/20090311_RL32270_a7bbe8763684424b48f0d4b1d61‌c92412ac50d0c.pdf [https://perma.cc/N5AR-EBMB] (providing examples of cooperation between federal and local law enforcement on immigration); Michael M. Hethmon, The Chimera and the Cop: Local Enforcement of Federal Immigration Law, 8 UDC/DCSL L. Rev. 83, 139 (2004) (detailing high level of federal-local law enforcement cooperation). ↑
  23.  See, e.g., US Records Show Physical, Sexual Abuse at Border, Hum. Rts. Watch (Oct. 21, 2021, 7:00 AM), https://www.hrw.org/news/2021/10/21/us-records-show-physical-sexua‌l-abuse-border [https://perma.cc/Z97M-W5F5] (reporting on abuse by Customs and Border Protection officers, Border Patrol agents, and Immigration and Customs Enforcement officials); Stan Wilson, Daniel Chong, Forgotten in DEA Cell, Settles Suit for $4.1 Million, CNN (Aug. 1, 2013, 7:38 AM), https://www.cnn.com/2013/07/30/justice/california-dea-settle‌ment/ [https://perma.cc/B9XE-EP9P] (finding that DEA agents detained a student in a windowless cell with no food or water for five days). ↑
  24.  See Aaron Morrison, 50-Year War on Drugs Imprisoned Millions of Black Americans, PBS NewsHour (July 26, 2021, 12:55 PM), https://www.pbs.org/newshour/nation/50-year-war-on-drugs-imprisoned-millions-of-black-americans [https://perma.cc/DZV2-H4DR] (noting that the federal government’s policies pursuant to the War on Drugs resulted in the mass incarceration of millions of Americans and undermined their access to voting and gun rights). ↑
  25.  See Jennifer McDonald & Dick M. Carpenter II, Frustrating, Corrupt, Unfair: Civil Forfeiture in the Words of Its Victims, Inst. for Just. (Sept. 28, 2021), https://ij.org/report/‌frustrating-corrupt-unfair/ [https://perma.cc/US2N-2YLE] (“Most states across the country, not to mention the federal government, continue to enforce civil forfeiture laws that offer few due process protections and promote policing for profit.”). ↑
  26.  See generally Farhang Heydari, Rethinking Federal Inducement of Pretext Stops, 2024 Wis. L. Rev. (forthcoming) [hereinafter Heydari, Rethinking Federal Inducement of Pretext Stops] (cataloguing the ways in which federal agencies promote pretextual traffic stops); Heydari, The Invisible Driver of Policing, supra note 19 (calling attention to the National Highway and Traffic Safety Agency as a proponent of pretextual traffic stops). ↑
  27.  See Chris Baumohl, Two Years In, COVID-19 Relief Money Fueling Rise of Police Surveillance, Elec. Priv. Info. Ctr. (Mar. 9, 2023), https://epic.org/two-years-in-covid-19-relie‌f-money-fueling-rise-of-police-surveillance/ [https://perma.cc/5VLG-Z5RM] (explaining that the expansion of surveillance technologies results from “federal funding, which lowers the cost of acquisition at the state and local level”). ↑
  28.  But see Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945, 32961 (May 25, 2022) (requiring the Attorney General to develop standards for accreditation of police departments by independent credentialing agencies and to determine if discretionary grants should depend on accreditation). ↑
  29.  See C.R. Div., U.S. Dep’t of Just., The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994–Present, at 3 (2017) [hereinafter C.R. Div., Police Reform Work: 1994–Present], https://www.justice.gov/crt/file/922421/download [https://perma.cc/LQN3-RME7] (describing the work of the Special Litigation Section). ↑
  30.  See Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 22, 26–27, 57–58 (2009) [hereinafter Harmon, Promoting Civil Rights] (arguing that the use of consent decrees, which frequently include certain requirements, such as training and policies on use of force, can incentivize other agencies to adopt such reforms); Allison T. Chappell, Consent Decrees and Police Reform: A Piece of the Puzzle or a Puzzling Policy, 16 Criminology & Pub. Pol’y 571, 572 (2017) (finding that consent decrees can lead to policy change because police departments seek to avoid DOJ scrutiny). ↑
  31.  President Biden’s Executive Order (“EO”) has a provision fostering accreditation of policing agencies, which could be the beginning of standard setting, although those accreditation standards as adopted by DOJ were insufficiently demanding. See infra notes 354–55 and accompanying text. ↑
  32.  Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945 (May 25, 2022). ↑
  33.  See Jon Schuppe, Trump Says His Policing Order Is a ‘Big Step.’ Activists Call It ‘Breadcrumbs.’, NBC News (June 17, 2020, 10:35 AM), https://www.nbcnews.com/news/us-news/trump-says-his-policing-order-big-step-activists-call-it-n1231269 [https://perma.cc/PR‌9G-ZQYR] (noting that Trump’s executive order concerning policing after George Floyd’s murder was “paltry”). ↑
  34.  One year in, the federal government released a long list of the actions it had taken, and we do not mean in any way to minimize their import. See Fact Sheet: Biden-⁠Harris Administration Highlights Accomplishments on Anniversary of Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety, White House (May 25, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/25/fact-sheet-biden-harris-administration-highlights-accomplishments-on-anniversary-of-historic-executive-order-to-advance-effective-accountable-policing-and-strengthen-public-safety/ [https://perma.cc/U4HM-WNPR] (highlighting actions taken under EO 14,074, including the creation of the “National Law Enforcement Accountability Database,” the adoption of new federal law enforcement use of force policies, and grants to local law enforcement “to adopt and implement best practices” in policing). Every step in the right direction is a step in the right direction. Still, much of that list itself was a down payment on enormous work yet to be done. ↑

  35.  See Exec. Order No. 14,074, 87 Fed. Reg. at 32945. ↑

Suffering Before Execution

Before their executions, condemned people suffer intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this Article, I show that American institutions administer pre-execution confinement as nonpunitive detention, and I explain the consequences of that counterintuitive status. A nonpunitive paradigm curbs, at least to some degree, the dehumanization, neglect, and isolation that now dominate life on death row. It is also the doctrinal solution to a longstanding puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. By the time the state executes its condemned prisoners, they will have spent about two decades in such conditions—up from two years in 1960. The state distributes suffering across this prisoner cohort in ways that bear little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

Virtually everyone makes the punitive assumption, but there are two reasons rooted in penal theory why they should not. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering collateral to the state’s interest in incapacitating those who face execution. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would be distributed across the death-sentenced prisoner cohort arbitrarily.

There is a well-developed body of constitutional law capable of absorbing a nonpunitive version of pre-execution confinement. Under that law, when the state detains people primarily to incapacitate them, that detention is regulatory—not punitive. Due process, rather than the Eighth Amendment, constrains regulatory detention. A nonpunitive approach would reduce unnecessary suffering because due process rules more stringently constrain the state’s treatment of its prisoners. Such an approach would also give the U.S. Supreme Court better answers to the difficult Eighth Amendment questions that have vexed the Justices for decades.

Introduction

People living on American death rows will die eventually, but first they will wait. And when death does come, it is more likely to be suicide or natural causes than the executioner’s hand.1 1.See Tracy L. Snell, Bureau of Just. Stat., U.S. Dep’t of Just., Capital Punishment, 2020—Statistical Tables 16 tbl.11 (2021) [hereinafter 2020 BJS Data], https://bjs.ojp.gov/content/‌pub/pdf/cp20st.pdf [https://perma.cc/R85Q-KZDJ].Show More Those whom the state manages to execute will spend, on average, about twenty years in pre-execution confinement2 2.See id. at 15 tbl.10.Show More —often in squalor and almost always alone.3 3.See generally ACLU, A Death Before Dying: Solitary Confinement on Death Row 1–7 (2013) [hereinafter 26-State Report], https://www.aclu.org/sites/default/files/field_docu‌ment/deathbeforedying-report.pdf [https://perma.cc/ZHW5-EFCL] (reporting inhumane confinement conditions on death rows in the United States based on a twenty-six-state survey); John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939, 964–66 (2005) (analyzing the link between harsh death-row conditions and execution volunteers); Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213, 1213–15, 1227–32, 1234 (2016) (explaining why death row incarceration is dehumanizing and arguing that it amounts to torture); Marah Stith McLeod, Does the Death Penalty Require Death Row? The Harm of Legislative Silence, 77 Ohio St. L.J. 525, 537–39 (2016) (summarizing death-row practices and conditions across all capital punishment states).Show More In other words, the condemned suffer intensely, in solitude, and at great length.

Almost every death penalty jurisdiction in the United States maintains a death row—a segregated living arrangement reserved for death-sentenced prisoners.4 4.The protocols for pre-execution confinement vary by jurisdiction, and I use the term “death row” to include any living arrangement for condemned people that does not integrate them into broader prisoner living arrangements. Cf. Merel Pontier, Cruel but Not Unusual the Automatic Use of Indefinite Solitary Confinement on Death Row: A Comparison of the Housing Policies of Death-Sentenced Prisoners and Other Prisoners Throughout the United States, 26 Tex. J. C.L. & C.R. 117, 141–42 (2020) (presenting findings on relationship between solitary confinement and death row throughout the country); Brandon Vines, Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row, 55 Colum. J.L. & Soc. Probs. 591, 620–21 (2022) (same).Show More Pre-execution confinement might be a central feature of the modern death penalty, but it is theoretically neglected. Most jurists and scholars reflexively conceptualize it as an extreme form of punitive suffering.5 5.See infra Section I.B.Show More Even in corners of the legal academy more attentive to the theoretical question, people treat pre-execution confinement as punishment.6 6.To take a recent example, Professor Marah Stith McLeod published an encyclopedic account of death-row practices across the country, and she did so in service of an argument that, because death-row incarceration is punishment, the legislature must provide for it specifically. See McLeod, supra note 3, at 531, 537–39; see also infra notes 114, 135 and accompanying text (collecting sources) (highlighting professors who, despite carefully selecting terminology, nevertheless analyze death-row confinement as punishment).Show More

I have a different view: that pre-execution confinement is a form of nonpunitive custody. The execution is the penalty, and the prior confinement is the administrative detention necessary to carry that punishment out. After all, if death is the ultimate penalty, then what could the moral justification for adding punitive detention be? None of this is to say that pre-execution confinement is morally or legally unjustifiable. But if the confinement is nonpunitive, then it ought to be subject to moral and constitutional constraints that differ from those that limit punishment.

I proceed in three parts. In Part I, I set forth the punitive framework that dominates the modern understanding of pre-execution confinement. In so doing, I present the associated suffering along two dimensions. The first involves the duration of confinement, and the second involves its conditions. Most people sentenced to die will lead lives marked by some substantial combination of malnutrition, inadequate health care, substandard sanitation and ventilation, restricted movement, and excessive isolation.7 7.See infra Subsection I.A.2.Show More The distribution of this suffering within the cohort of death-sentenced people, moreover, has almost nothing to do with moral blameworthiness.8 8.See infra Subsection I.A.1.Show More Nevertheless, and as debates rage over justifications for such suffering, almost everyone is engaged in a similar project: to evaluate whether pre-execution confinement can be justified as punishment.9 9.See infra Section I.B.Show More

In Part II, I make the theoretical claim that pre-execution confinement is not punishment. That is, the state does not subject condemned people to harsh pre-execution treatment in order to counterbalance blameworthy conduct or for other punitive reasons.10 10.See infra Section II.A.Show More Most death rows exist because correctional administrators have decided to establish and populate them, and the suffering that condemned people experience there is typically justified by reference to incapacitation—an objective that the Supreme Court and most of the theoretical literature treat as nonpunitive.11 11.See infra notes 150–51, 242–53, 266–83 and accompanying text.Show More The problems with a punitive view of pre-execution confinement are more than just definitional. Any punitive treatment imposed by the state would violate core justificatory tenets of punishing. The state ought not impose punishment beyond the punitive treatment that the offending person deserves, so pre-execution confinement cannot be punishment added to the legislatively specified and jury-imposed maximum, which is an execution.12 12.See infra Subsection II.B.1.Show More

In Part III, I tackle constitutional doctrine. The constitutional law of nonpunitive detention can comfortably absorb confinement before execution.13 13.See infra Section III.A.Show More I also consider how that doctrinal change would affect pre-execution practices. First, it would change the procedures by which the state may permissibly isolate people in a segregated facility, and the most meaningful change would require periodic review for dangerousness.14 14.See infra Subsection III.B.1.Show More Second, it would mean that conditions of pre-execution confinement would be subject to analysis under stricter due process tests, rather than less stringent Eighth Amendment ones.15 15.See infra Subsection III.B.2.Show More Finally, it would give the Supreme Court a way to resolve a doctrinal impasse for which the Justices have offered only unconvincing answers: If lengthy pre-execution confinement entails decades of suffering, then how can the Eighth Amendment permit the state to add an execution?16 16.See infra Section III.C.Show More

In sum, pre-execution confinement should be treated as nonpunitive detention—an administrative arrangement necessary to incapacitate risks. On such an understanding, jurisdictions must reform pre-execution practices to avoid the pervasive neglect and dehumanizing treatment permitted under more punitive approaches. Readers should understand that, when I dispute the status of pre-execution confinement as punishment, I neither deny the existence of extraordinary pre-execution suffering nor suggest that it lies beyond law’s reach. Quite the opposite, in fact. Suffering before execution is cause for profound concern, both moral and legal. When the state inflicts that suffering for nonpunitive reasons, it ought to be substantially constrained, and there is constitutional doctrine capable of meaningfully constraining it.

  1.  See Tracy L. Snell, Bureau of Just. Stat., U.S. Dep’t of Just., Capital Punishment, 2020—Statistical Tables 16 tbl.11 (2021) [hereinafter 2020 BJS Data], https://bjs.ojp.gov/content/‌pub/pdf/cp20st.pdf [https://perma.cc/R85Q-KZDJ]. ↑
  2.  See id. at 15 tbl.10. ↑
  3.  See generally ACLU, A Death Before Dying: Solitary Confinement on Death Row 1–7 (2013) [hereinafter 26-State Report], https://www.aclu.org/sites/default/files/field_docu‌ment/deathbeforedying-report.pdf [https://perma.cc/ZHW5-EFCL] (reporting inhumane confinement conditions on death rows in the United States based on a twenty-six-state survey); John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939, 964–66 (2005) (analyzing the link between harsh death-row conditions and execution volunteers); Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213, 1213–15, 1227–32, 1234 (2016) (explaining why death row incarceration is dehumanizing and arguing that it amounts to torture); Marah Stith McLeod, Does the Death Penalty Require Death Row? The Harm of Legislative Silence, 77 Ohio St. L.J. 525, 537–39 (2016) (summarizing death-row practices and conditions across all capital punishment states). ↑
  4.  The protocols for pre-execution confinement vary by jurisdiction, and I use the term “death row” to include any living arrangement for condemned people that does not integrate them into broader prisoner living arrangements. Cf. Merel Pontier, Cruel but Not Unusual the Automatic Use of Indefinite Solitary Confinement on Death Row: A Comparison of the Housing Policies of Death-Sentenced Prisoners and Other Prisoners Throughout the United States, 26 Tex. J. C.L. & C.R. 117, 141–42 (2020) (presenting findings on relationship between solitary confinement and death row throughout the country); Brandon Vines, Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row, 55 Colum. J.L. & Soc. Probs. 591, 620–21 (2022) (same). ↑
  5.  See infra Section I.B. ↑
  6.  To take a recent example, Professor Marah Stith McLeod published an encyclopedic account of death-row practices across the country, and she did so in service of an argument that, because death-row incarceration is punishment, the legislature must provide for it specifically. See McLeod, supra note 3, at 531, 537–39; see also infra notes 114, 135 and accompanying text (collecting sources) (highlighting professors who, despite carefully selecting terminology, nevertheless analyze death-row confinement as punishment). ↑
  7.  See infra Subsection I.A.2. ↑
  8.  See infra Subsection I.A.1. ↑
  9.  See infra Section I.B. ↑
  10.  See infra Section II.A. ↑
  11.  See infra notes 150–51, 242–53, 266–83 and accompanying text. ↑
  12.  See infra Subsection II.B.1. ↑
  13.  See infra Section III.A. ↑
  14.  See infra Subsection III.B.1. ↑
  15.  See infra Subsection III.B.2. ↑

  16.  See infra Section III.C. ↑

Defeating the Empire of Forms

For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock-full of terms that courts will not, or should not, enforce. Most think that the market for contract terms is broken, for both employees and consumer adherents. And yet forms are so embedded in our economy that it’s hard to imagine modern commercial life without them. Scholars thus push calibrated, careful solutions that walk a deeply rutted path. Notwithstanding hundreds of proposals calling for their retrenchment, the empire of forms has continued to advance into new areas of social life: we now click to agree to more written contracts every few days than our grandparents did in their entire lives.

This Article argues that the swelling scope of the empire of forms is itself a social problem, and it demands both a new diagnosis and a structural reform. Forms are everywhere in our lives because we’ve brought them with us in our pockets, and on our devices. Contract law hasn’t changed to make forms more valuable; the cost of contracting has fallen to make them ever cheaper to distribute. This encourages their distribution even though they individually are less valuable to firms. All the while, cheap forms externalize too many harms and threaten important legal values which we should defend. What’s needed is a remedy that cuts off the supply of cheap forms at its source and returns us to a world with fewer written contracts. I offer that reform with a proposed state law: the statute of frauds flipped upside-down. It would make low-stakes written-form contracts, directed at either employees or consumers, simply unenforceable. I defend the statute against charges that it is worse medicine than the mass contracting disease it seeks to cure.

Introduction

Contract’s empire of forms, on a generations-long march, continues to conquer new territory. Not content with dominating the worlds of commercial law and finance, written contracts now govern the most common consumer and employment relationships. Everywhere we look, adhesive terms stare back: they control our lives at the market,1 1.See Uri Benoliel & Shmuel I. Becher, Termination Without Explanation Contracts, 2022 U. Ill. L. Rev. 1059, 1062 & n.14 (describing Amazon terms of use governing returns).Show More at school,2 2.See Serena Zhang, Students Are Expected to Follow the Campus Compact This Fall. Here’s What It Means, Daily Pennsylvanian (July 30, 2020, 1:04 AM), https://www.thedp.com/‌article/2020/07/campus-compact-explained-penn-fall-social-distanc‌ing [https://perma.cc/QD6E-2WQ2].Show More at work,3 3.For a discussion of the role of arbitration agreements in employment contracts, see Alexander J.S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Stud. 1, 1 (2011).Show More on vacation,4 4.See David A. Hoffman, Relational Contracts of Adhesion, 85 U. Chi. L. Rev. 1395, 1437–38 (2018) (describing Airbnb’s terms of use).Show More and online;5 5.See Eric Goldman, Online User Account Termination and 47 U.S.C. § 230(c)(2), 2 U.C. Irvine L. Rev. 659, 659 (2012) (“An online provider’s termination of user accounts that facilitate user-generated content can be a major—and potentially even life-changing—event for users.” (footnote omitted)); see also Rory Van Loo, Federal Rules of Platform Procedure, 88 U. Chi. L. Rev. 829, 882 (2021) (discussing the necessity of online platforms having flexibility in their contracts with consumers).Show More they constrain our public law rights6 6.See Alexandra Lahav, In Praise of Litigation 126–27 (2017).Show More and our private law duties;7 7.When sued by a journalist who was banned from the platform for spreading misinformation about COVID, Twitter used its terms and conditions as part of its defense. Twitter’s motion to dismiss was denied. Berenson v. Twitter, Inc., No. 21-cv-09818, 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022).Show More and they determine procedure we use to vindicate what’s left of both.8 8.See generally David A. Hoffman, Whither Bespoke Procedure?, 2014 U. Ill. L. Rev. 389 (cataloguing growth in certain contract clauses controlling litigation).Show More Forms, assented to on our proliferating portable screens, have never been more dominant, nor perceived to be less morally legitimate.9 9.See David A. Hoffman, From Promise to Form: How Contracting Online Changes Consumers, 91 N.Y.U. L. Rev. 1595, 1632 (2016) (describing age effects in views about morality of contracting).Show More

There’s a widely remarked consensus that there’s something rotten at the heart of form contracts. And yet the rise in the sheer number and subject matter of form contracts has received less comment than you’d expect. Commentators focus on the trees: contract font and length,10 10.See Yonathan A. Arbel & Andrew Toler, ALL-CAPS, 17 J. Empirical Legal Stud. 862, 863 (2020) (discussing jurists’ emphasis on font).Show More readability,11 11.See Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. 2255, 2257 (2019) (testing readability of terms and finding them wanting).Show More firms’ monopoly power,12 12.Friedrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629, 640 (1943).Show More and lack of meaningful assent.13 13.See generally Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2013) (offering an extended critique of modern contract doctrine for permitting contractual obligation without real assent).Show More Above all, scholars bemoan bad terms. Each archetype form contract provision has developed its own (generally hostile) scholarly community: arbitration clauses,14 14.See, e.g., Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2804, 2804 (2015) (noting a connection between weak forms of consent and the expansion of arbitration’s theoretical reach and critiquing the subsequent loss of public law rights). But cf. Stephen J. Ware, The Case for Enforcing Adhesive Arbitration Agreements—With Particular Consideration of Class Actions and Arbitration Fees, 5 J. Am. Arb. 251, 254–57 (2006) (“[W]hatever lowers costs to businesses tends over time to lower prices to consumers.”); Alan Kaplinsky, Mark Levin & Daniel McKenna, Consumers Fare Better with Arbitration, Am. Banker (Dec. 23, 2014, 12:00 PM), https://www.americanbanker.com/opinion/consumers-fare-better-with-arbitration [https://perma.cc/VZP2-YQ2K] (arguing that arbitration benefits consumers and must be analyzed relative to the alternatives of court and class action litigation); Andrea Cann Chandrasekher & David Horton, Arbitration Nation: Data from Four Providers, 107 Calif. L. Rev. 1, 9 (2019) (finding repeat play effects for both plaintiffs and defendants).Show More class action waivers,15 15.See J. Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 Vand. L. Rev. 1735, 1770 (2006).Show More damage limitations,16 16.See, e.g., Debora L. Threedy, Liquidated and Limited Damages and the Revision of Article 2: An Opportunity to Rethink the U.C.C.’s Treatment of Agreed Remedies, 27 Idaho L. Rev. 427, 445 (1991) (discussing damage limitations).Show More stipulated remedies,17 17.See Carliss Chatman, Twitter Wants to Force Musk to Buy It. But There’s a Hitch., Barron’s (July 30, 2022), https://www.barrons.com/articles/twitter-elon-musk-thirteenth-amendment-51659101363 [https://perma.cc/LD2Y-BBN4] (suggesting Thirteenth Amendment issues with specific performance).Show More choice of law,18 18.See generally William J. Moon, Contracting out of Public Law, 55 Harv. J. Legis. 323 (2018) (discussing commercial contracts contracting out of legal regimes). But cf. Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev. 1151, 1152–57 (2000) (arguing that choice of law clauses allow parties to mitigate the effects of inefficient substantive laws).Show More unilateral modification,19 19.See Shmuel I. Becher & Uri Benoliel, Sneak in Contracts, 55 Ga. L. Rev. 657, 663 (2021) (suggesting that there are social costs to unilateral contract modification); Oren Bar-Gill & Kevin Davis, Empty Promises, 84 S. Cal. L. Rev. 1, 6 (2010) (articulating problems caused by unilateral modification clauses).Show More privacy policies,20 20.See Neil Richards & Woodrow Hartzog, The Pathologies of Digital Consent, 96 Wash. U. L. Rev. 1461, 1463 (2019) (criticizing notice-and-consent regime).Show More choice of forum,21 21.See Tom Cummins, Shute: The Math Is Off, 8 J.L., Econ. & Pol’y 1, 1 (2011) (discussing the costs of choice of forum clauses).Show More social media behavioral controls,22 22.See Benoliel & Becher, supra note 1, at 1061–62 (exploring termination of contracts in the context of social media).Show More nondisclosure clauses,23 23.See, e.g., David A. Hoffman & Erik Lampmann, Hushing Contracts, 97 Wash. U. L. Rev. 165, 220 (2019) (proposing a public policy defense to nondisclosure clauses).Show More and noncompetes.24 24.See, e.g., Orly Lobel, Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, 120 Colum. L. Rev. 547, 557 (2020) (noting an increase in noncompete agreements); On Amir & Orly Lobel, How Noncompetes Stifle Performance, Harv. Bus. Rev., Jan.–Feb. 2014, at 26.Show More More rarely do scholars step back and consider the forest—what to do with the ballooning number of forms we must agree to simply to get through our lives.25 25.Cf. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 647, 704–11 (2011) (using the hypothetical example of Chris Consumer to illustrate the omnipresence of disclosure a decade ago); Brett Frischmann & Evan Selinger, Re-Engineering Humanity 64 (2018) (coining the term “lollipop contracts” to describe contracts governing trivial affairs and suggesting that they exist only because transaction costs are low).Show More

Identifying, and solving, the many problems posed by mass contracting has preoccupied contract professors for the last hundred years, and it is this Article’s goal to take another whack at the thicket.26 26.The literature is vast. For examples of foundational works, see Nathan Isaacs, The Standardizing of Contracts, 27 Yale L.J. 34, 35 (1917); Karl N. Llewellyn, What Price Contract?—An Essay in Perspective, 40 Yale L.J. 704, 729–30 (1931); Kessler, supra note 12, at 629, 640; Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 370–71 (1960) (articulating reasonable expectations doctrine for the non-dickered fine print); W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 Harv. L. Rev. 529, 529 (1971). See also Ethan J. Leib, What Is the Relational Theory of Consumer Form Contract?, in Revisiting the Contracts Scholarship of Stewart Macaulay on the Empirical and the Lyrical 259, 259 (Jean Braucher, John Kidwell & William C. Whitford eds., 2013) (“One of the most puzzling and embarrassing facts about contract law and contracts scholarship in the United States is that neither has found a consistent way to treat the real contracts of our lives: standardized consumer form contracts.”).Show More It’s my premise that scholars have largely gotten the diagnosis wrong. Terms may sometimes be bad for adherents, and firms might well seek to opportunistically take slices of the pie that previously belonged to consumers and employees. But the real story of forms is, counterintuitively, how useless and wasteful their empire has become, for drafters and adherents alike. Written contracts have become omnipresent in our lives largely because technology has made legal assent too cheap to obtain.27 27.See, e.g., Nancy S. Kim, Contract’s Adaptation and the Online Bargain, 79 U. Cin. L. Rev. 1327, 1342 (2011) (“Given that digital terms are weightless, reproduction and distribution costs non-existent, and consumers highly unlikely to read online agreements, companies could add additional terms with no concomitant financial or reputational cost. Companies began using their online agreements to do more than contain costs and assess the risks of doing business.”).Show More In many cases, they are nearly zero-cost products, thrown into commerce without real thought about the benefits they bring firms, because technology made them an afterthought. Simply put, without our phones, iPads, and tablets, we wouldn’t see, or agree to, nearly so many written contracts: our swelling empire of forms is built on the portable screen.

It may seem obvious that the real foundation of contracts’ expanding empire is collapsing transaction costs.28 28.Cf. Lizette Alvarez & Jeri Clausing, Senate Passes Bill Allowing Online Contract-Signing, Pittsburgh Post-Gazette, June 17, 2000, at A-1, A-7 (“‘The bill revolutionizes the way consumers, industry and government conduct business over the Internet,’ said Sen. Spencer Abraham, R-Mich. . . . . ‘It is a tremendous cost-cutting tool because people and businesses can now enter contractual arrangements without having to drive across town, fly thousands of miles for a meeting or mail reams of paper back and forth.’”).Show More But that’s not the dominant account. Today’s scholarship looks at the hundreds of written contracts we each assent to in a year and assumes that they must benefit firms by enabling intentional exploitation. Scholars, having then suggested that contracting markets are evil, typically look to reform their content at the margins—focusing on improving mechanisms of consent, or invalidating certain clauses.29 29.One classic is Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv. L. Rev. 1173, 1262 (1983) (arguing “invisible terms” in adhesion contracts should be presumptively unenforceable). I assume you think I am exaggerating above the line. But cf. Peter Linzer, Contract as Evil, 66 Hastings L.J. 971, 975 (2015).Show More But such marginal reforms have been notably ineffective at reducing the number of aversive terms in contracts. Even outright legislative bans of certain terms only depress their use, leaving consumers subject to being swayed by terms that would be unenforceable in court.30 30.See Meirav Furth-Matzkin, On the Unexpected Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market, 9 J. Legal Analysis 1, 24, 39 (2017) (cataloguing a sample of Boston leases and finding a large percentage of unenforceable terms which likely affected consumer behavior).Show More

Locating the problem in transaction costs, as I’ll show, motivates a distinct solution. Many firms use forms because it is nearly free to do so, expanding the use of contract into areas where it really has very little social value at all. This Article proposes a legislative response to this economic problem, which likely will strike you as more of a Swiftian modest proposal than it’s intended to be.31 31.See Jonathan Swift, A Modest Proposal for Preventing the Children of Poor People in Ireland, from Being a Burden on Their Parents or Country, and for Making Them Beneficial to the Publick (1729).Show More Individual states could, and perhaps should, pass something like a reverse statute of frauds. The statute of frauds, as you may recall from your first-year contracts course, conditions enforceability on writing for deals of certain gravity of purpose—land, expensive goods, long-term service contracts, etc. I propose the converse: states should deny enforcement of a certain set of (mostly cheap) written contracts.

Under this reverse statute of frauds—which I’ll call the Statute Against Forms (or “SAF” for short)—for most goods and services contracts, there would be three legal regimes, tagged to deal value. At the lowest dollar amounts—say, $100 for goods and services contracts, or those paying less than $15 an hour—the only enforceable contracts would be oral ones. Then, for some class of contracts, including goods contracts between $100 and $500, the traditional floor for the statute of frauds, firms could either use written forms, or not, as they preferred. Finally, bigger contracts would be enforceable only when written, as has been the case for centuries.

The SAF would partially bring us back to the contracting world of 1980. Then, most of the products we bought regularly as consumers were governed by default rules of contract, not written forms.32 32.There’s nothing necessarily simpler or more transparent about the default rule regime. See Omri Ben-Shahar, Regulation Through Boilerplate: An Apologia, 112 Mich. L. Rev. 883, 889 (2014) [hereinafter Ben-Shahar, Regulation Through Boilerplate] (“Regulation by boilerplates means that one web of terms collected from many sources of law (the legally supplied default provisions) is replaced with a fairly comprehensive but concise substitute (boilerplate). The boilerplate version appears more complicated, but this is a superficial veneer due to the fact that boilerplates reproduce the entire set of governing rules in print.”); see also Russell Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U. Chi. L. Rev. 1203, 1205 (2003) (explaining the alternative to form contracts is imposed legal defaults).Show More Employment law, too, was largely governed by unwritten defaults.33 33.See infra text accompanying notes 83–86; cf. Rachel Leiser Levy, Judicial Interpretation of Employee Handbooks: The Creation of a Common Law Information-Eliciting Penalty Default Rule, 72 U. Chi. L. Rev. 695, 701–02 (2005) (outlining the history of courts’ treatment of employee handbooks).Show More Nostalgia, like paranoia, isn’t always wrong: the past default contracting world was better for most of the people who operated in it. Not only did it avoid the tyranny of unread forms that has consumed contract scholarship of late, but the rare written contracts we saw had more moral weight and heft.34 34.There is evidence that younger citizens increasingly treat contracting itself as a sort of low-stakes joke, driven by increasing exposure to online forms. See Hoffman, supra note 9, at 1597–98. Eroding contracting’s symbolic power puts pressure on other doctrinal rules deeply embedded in contract law. Cf. Tess Wilkinson-Ryan, David Hoffman & Emily Campbell, Expecting Specific Performance 13 (Inst. for L. & Econ., Research Paper No. 23-05, 2023) (noting that expectation damages under-compensate by leaving out the cost of moral harm). The empire of forms thus poisons real negotiated agreements, overall increasing the need for state enforcement.Show More

The SAF also has a singular practical advantage over competing reform proposals. The Federal Arbitration Act has defeated policymakers’ attempts to regulate form contracts twice over.35 35.See 9 U.S.C. §§ 1–16, 201–208, 301–307.Show More First, it prohibits attempts to differentially police arbitration clauses, depriving states of the ability to argue that enforcement in public courts is necessary to vindicate particular rights. It also makes it difficult to develop common law defenses to particular contract terms, as increasing numbers of disputes happen in arbitral forums, which aren’t just private: they are ill-disposed to innovate around terms, or processes of formation.36 36.Cf. Samuel Issacharoff & Florencia Marotta-Wurgler, The Hollowed Out Common Law, 67 UCLA L. Rev. 600, 607–08 (2020) (illustrating the decline in state-made common law doctrine).Show More The SAF will avoid this two-pronged attack, as the growth of arbitration is primarily a phenomenon of increasing adoption of cheap contracts. Eliminate those written forms for certain kinds of goods and services, and more disputes will end up litigated in court. Thus, the SAF offers a practical legislative solution that states could use to reduce arbitration’s reach and revitalize public and private rights.

That said, I face a steep uphill climb in convincing you that we should simply eliminate whole classes of employee and consumer forms. A world without certain written contracts is potentially socially disruptive. It’s not necessarily better for all individual adherents. And notably, eliminating forms won’t generate more formal legal autonomy, since the defaults that law provides us are just as adhesive as those that we click to agree to.37 37.Ben-Shahar, Regulation Through Boilerplate, supra note 32, at 888–89.Show More But I’m going to try to convince you that omnipresent, cheap forms have cost us dearly.38 38.For a general account of externalities and non-parties in contract law, see Omri Ben-Shahar, David A. Hoffman & Cathy Hwang, Nonparty Interests in Contract Law, 171 U. Pa. L. Rev. 1095, 1110–12 (2023); see also Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. Pa. L. Rev. 1, 52, 56–57 (2008) (“[D]ata on credit card choice and use show that consumer mistakes cost hundreds of dollars a year per consumer. . . . The aggregate costs are staggering.”).Show More This presents a novel social problem on two levels.

Many form contracts we click to agree to today, on the margin, erode public goods, from safety to equality. They do so even where parties themselves arguably benefit from the form. In fact, perhaps it’s because adherents prefer to make contractual tradeoffs that this problem has proven so wicked.39 39.Cf. Salomé Viljoen, A Relational Theory of Data Governance, 131 Yale L.J. 573, 598–600 (2021) (noting the gap between individual and social values in privacy); Frischmann & Selinger, supra note 25, at 78 (noting that adherents are perfectly rational maximizers).Show More Externalities are rife even for terms that courts deem unenforceable, as people respond to the contracts they read, not the ones that would stand up in court.40 40.See Meirav Furth-Matzkin & Roseanna Sommers, Consumer Psychology and the Problem of Fine-Print Fraud, 72 Stan. L. Rev. 503, 504, 512 (2020) (discussing individuals’ unwillingness to challenge unenforceable terms); Dennis P. Stolle & Andrew J. Slain, Standard Form Contracts and Contract Schemas: A Preliminary Investigation of the Effects of Exculpatory Clauses on Consumers’ Propensity to Sue, 15 Behav. Sci. & L. 83, 91 (1997) (finding that exculpatory language deterred hypothetical willingness to sue).Show More Forms are full of clauses that exclude tort remedies, waive property standards, and cut back on public law remedies for antidiscrimination. When coupled with procedural devices that make it harder to vindicate such small-stakes individual harms in court, small-stakes forms off-load risk to the public.41 41.See, e.g., Judith Resnik, supra note 14 (discussing the relationship between adhesion contracts and rights).Show More

But if it’s true that firms benefit from such sloughed-off social costs, the argument against all forms is hard to maintain. Why not just—as so many law professors have argued (and argued)42 42.I even split up the preemption footnote into multiple parts and won’t refer to it again here, lest you feel dispirited about the possibility of reform.Show More—try harder to reduce the incidence of bad terms? Punitive damages for bad contracts! Bar sanctions for bad contract drafters! Private attorneys general, given bounties to hunt down unenforceable terms! Put aside the obvious problem that these solutions are fanciful43 43.Incentives matter, and toothy sanctions would marginally affect the likelihood of bad terms. But these solutions implicitly assume that cheap forms have positive social value. Perhaps strict liability is the right approach to this problem, not a negligence rule.Show More: they also beg the question. Rejecting cheap forms doesn’t turn on convincing you that terms and firms are bad but rather that the entire apparatus of form production has gone off the rails.44 44.To be clear, my argument is more attractive if you hold these beliefs, so I don’t try very hard to dissuade you either.Show More Contracts are so cheap to produce that they can be stuffed to the gills with bad terms, benefiting lawyer-agents, without materially improving firm wealth. In fact, I’ll argue that technology has so subsidized contract formation that it no longer is obvious that cheap forms have real benefits for drafters. Forms thus externalize diffuse harms without necessarily internalizing discrete benefits. The SAF would undo these systemic consequences at their root.

But even before diving into the details, the SAF may provoke a reaction in most readers: Are you serious? The idea of prohibiting contracts not based on their content,45 45.See U.C.C. § 2-302 (Am. L. Inst. & Unif. L. Comm’n 2023) (covering unconscionability rules).Show More the quality of assent, or party identity,46 46.See, e.g., 5 Williston on Contracts § 9:1 (4th ed.), Westlaw (database updated May 2023) [hereinafter Williston on Contracts] (describing capacity doctrines).Show More but rather because they are in writing runs against the main current of American contract law. Our law, developed by courts and legislatures alike, is pro-disclosure and pro-writing.47 47.See 9 Williston on Contracts, supra note 46, § 21:1 (describing the importance of written contracts in the rise of the statute of frauds).Show More And for good reason: written contracts are more easily and predictably litigated, they are said to reduce the incidence of fraud,48 48.Hackney v. Morelite Constr. D.C. Corp., 418 A.2d 1062, 1065–67 (D.C. 1980) (recounting the anti-fraud role of the statute of frauds).Show More permit firms to grow internally and yet maintain standard practices to outsiders,49 49.See Rakoff, supra note 29, at 1178 n.13 (stating that without standardized contracts, “the making of offsetting transactions, covering, and the entire apparatus of speculation on an exchange would be impossible or much more difficult”); Jason Scott Johnston, The Return of Bargain: An Economic Theory of How Standard-Form Contracts Enable Cooperative Negotiation Between Businesses and Consumers, 104 Mich. L. Rev. 857, 865 (2005) (highlighting corporations’ use of employee discretion in departing from formal contractual terms); Restatement (Second) of Contracts § 211 cmt. a (Am. L. Inst. 1981) (“Standardization of agreements serves many of the same functions as standardization of goods and services; both are essential to a system of mass production and distribution.”).Show More and allow shoppers and policymakers to compare terms (if they read them) and thus price and analyze legal rights.50 50.See infra text accompanying notes 66–68 (explaining the economics of boilerplate).Show More Depriving firms of the ability to contract in writing, even for small-stakes contracts, seems destined to lead to some very perverse outcomes indeed.

Consider the introduction to the argument section in a recent certiorari petition, which asked the Supreme Court to resolve a question about the preemptive scope of the Copyright Act in a way that favored contract over federal statute:

All across the internet, websites employ terms of service to impose conditions on visitors’ access to their services. The laws of every state protect such terms as binding contractual obligations. That contractual protection is essential for a vast swath of internet businesses. They invest enormous resources in activities, such as aggregating information from various sources, that provide extraordinary benefits to the public. And they offer the fruits of their labors to the public, often for free. For many of them, contract law is the only way to protect their investment from exploitation by others, including exploitation by immensely powerful internet giants like Google.51 51.Petition for Writ of Certiorari at 1, ML Genius Holdings LLC v. Google LLC, 143 S. Ct. 2658 (2023) (No. 22-121), 2022 WL 3227953, at *1.Show More

It’s my goal to convince you that the normative claims in this passage, and the empirical data they appear to rest on, are overwrought at best. We don’t need written form contracts for smaller goods and services transactions, nor for low-wage jobs. Making them unenforceable will neither create chaos in large firms nor kill the internet or other forms of modern commerce. And, though the SAF has no precise precedent, it’s not invented whole cloth: we’ve experimented with regulation of forms before, without the sky falling. And, even if you aren’t fully persuaded, I hope to make you think differently about the value of forms and what the law can do to suppress them on the margin.

I’ll start by offering a summary of broadly shared complaints that modern scholars have lodged with our contracting regime. Then, in Part II, I present the solutions on offer, all incomplete, preempted, or resigned to failure. Part III provides the heart of my account about the relationship of technological change and transaction costs to the contracting world we live in, and what that means for current debates. Part IV describes, defends, and frets about the SAF.

  1.  See Uri Benoliel & Shmuel I. Becher, Termination Without Explanation Contracts, 2022 U. Ill. L. Rev. 1059, 1062 & n.14 (describing Amazon terms of use governing returns). ↑
  2.  See Serena Zhang, Students Are Expected to Follow the Campus Compact This Fall. Here’s What It Means, Daily Pennsylvanian (July 30, 2020, 1:04 AM), https://www.thedp.com/‌article/2020/07/campus-compact-explained-penn-fall-social-distanc‌ing [https://perma.cc/QD6E-2WQ2]. ↑
  3.  For a discussion of the role of arbitration agreements in employment contracts, see Alexander J.S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Stud. 1, 1 (2011). ↑
  4.  See David A. Hoffman, Relational Contracts of Adhesion, 85 U. Chi. L. Rev. 1395, 1437–38 (2018) (describing Airbnb’s terms of use). ↑
  5.  See Eric Goldman, Online User Account Termination and 47 U.S.C. § 230(c)(2), 2 U.C. Irvine L. Rev. 659, 659 (2012) (“An online provider’s termination of user accounts that facilitate user-generated content can be a major—and potentially even life-changing—event for users.” (footnote omitted)); see also Rory Van Loo, Federal Rules of Platform Procedure, 88 U. Chi. L. Rev. 829, 882 (2021) (discussing the necessity of online platforms having flexibility in their contracts with consumers). ↑
  6.  See Alexandra Lahav, In Praise of Litigation 126–27 (2017). ↑
  7.  When sued by a journalist who was banned from the platform for spreading misinformation about COVID, Twitter used its terms and conditions as part of its defense. Twitter’s motion to dismiss was denied. Berenson v. Twitter, Inc., No. 21-cv-09818, 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022). ↑
  8.  See generally David A. Hoffman, Whither Bespoke Procedure?, 2014 U. Ill. L. Rev. 389 (cataloguing growth in certain contract clauses controlling litigation). ↑
  9.  See David A. Hoffman, From Promise to Form: How Contracting Online Changes Consumers, 91 N.Y.U. L. Rev. 1595, 1632 (2016) (describing age effects in views about morality of contracting). ↑
  10.  See Yonathan A. Arbel & Andrew Toler, ALL-CAPS, 17 J. Empirical Legal Stud. 862, 863 (2020) (discussing jurists’ emphasis on font). ↑
  11.  See Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. 2255, 2257 (2019) (testing readability of terms and finding them wanting). ↑
  12.  Friedrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629, 640 (1943). ↑
  13.  See generally Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2013) (offering an extended critique of modern contract doctrine for permitting contractual obligation without real assent). ↑
  14.  See, e.g., Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2804, 2804 (2015) (noting a connection between weak forms of consent and the expansion of arbitration’s theoretical reach and critiquing the subsequent loss of public law rights). But cf. Stephen J. Ware, The Case for Enforcing Adhesive Arbitration Agreements—With Particular Consideration of Class Actions and Arbitration Fees, 5 J. Am. Arb. 251, 254–57 (2006) (“[W]hatever lowers costs to businesses tends over time to lower prices to consumers.”); Alan Kaplinsky, Mark Levin & Daniel McKenna, Consumers Fare Better with Arbitration, Am. Banker (Dec. 23, 2014, 12:00 PM), https://www.americanbanker.com/opinion/consumers-fare-better-with-arbitration [https://perma.cc/VZP2-YQ2K] (arguing that arbitration benefits consumers and must be analyzed relative to the alternatives of court and class action litigation); Andrea Cann Chandrasekher & David Horton, Arbitration Nation: Data from Four Providers, 107 Calif. L. Rev. 1, 9 (2019) (finding repeat play effects for both plaintiffs and defendants). ↑
  15.  See J. Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 Vand. L. Rev. 1735, 1770 (2006). ↑
  16.  See, e.g., Debora L. Threedy, Liquidated and Limited Damages and the Revision of Article 2: An Opportunity to Rethink the U.C.C.’s Treatment of Agreed Remedies, 27 Idaho L. Rev. 427, 445 (1991) (discussing damage limitations). ↑
  17.  See Carliss Chatman, Twitter Wants to Force Musk to Buy It. But There’s a Hitch., Barron’s (July 30, 2022), https://www.barrons.com/articles/twitter-elon-musk-thirteenth-amendment-51659101363 [https://perma.cc/LD2Y-BBN4] (suggesting Thirteenth Amendment issues with specific performance). ↑
  18.  See generally William J. Moon, Contracting out of Public Law, 55 Harv. J. Legis. 323 (2018) (discussing commercial contracts contracting out of legal regimes). But cf. Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev. 1151, 1152–57 (2000) (arguing that choice of law clauses allow parties to mitigate the effects of inefficient substantive laws). ↑
  19.  See Shmuel I. Becher & Uri Benoliel, Sneak in Contracts, 55 Ga. L. Rev. 657, 663 (2021) (suggesting that there are social costs to unilateral contract modification); Oren Bar-Gill & Kevin Davis, Empty Promises, 84 S. Cal. L. Rev. 1, 6 (2010) (articulating problems caused by unilateral modification clauses). ↑
  20.  See Neil Richards & Woodrow Hartzog, The Pathologies of Digital Consent, 96 Wash. U. L. Rev. 1461, 1463 (2019) (criticizing notice-and-consent regime). ↑
  21.  See Tom Cummins, Shute: The Math Is Off, 8 J.L., Econ. & Pol’y 1, 1 (2011) (discussing the costs of choice of forum clauses). ↑
  22.  See Benoliel & Becher, supra note 1, at 1061–62 (exploring termination of contracts in the context of social media). ↑
  23.  See, e.g., David A. Hoffman & Erik Lampmann, Hushing Contracts, 97 Wash. U. L. Rev. 165, 220 (2019) (proposing a public policy defense to nondisclosure clauses). ↑
  24.  See, e.g., Orly Lobel, Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, 120 Colum. L. Rev. 547, 557 (2020) (noting an increase in noncompete agreements); On Amir & Orly Lobel, How Noncompetes Stifle Performance, Harv. Bus. Rev., Jan.–Feb. 2014, at 26. ↑
  25.  Cf. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 647, 704–11 (2011) (using the hypothetical example of Chris Consumer to illustrate the omnipresence of disclosure a decade ago); Brett Frischmann & Evan Selinger, Re-Engineering Humanity 64 (2018) (coining the term “lollipop contracts” to describe contracts governing trivial affairs and suggesting that they exist only because transaction costs are low). ↑
  26.  The literature is vast. For examples of foundational works, see Nathan Isaacs, The Standardizing of Contracts, 27 Yale L.J. 34, 35 (1917); Karl N. Llewellyn, What Price Contract?—An Essay in Perspective, 40 Yale L.J. 704, 729–30 (1931); Kessler, supra note 12, at 629, 640; Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 370–71 (1960) (articulating reasonable expectations doctrine for the non-dickered fine print); W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 Harv. L. Rev. 529, 529 (1971). See also Ethan J. Leib, What Is the Relational Theory of Consumer Form Contract?, in Revisiting the Contracts Scholarship of Stewart Macaulay on the Empirical and the Lyrical 259, 259 (Jean Braucher, John Kidwell & William C. Whitford eds., 2013) (“One of the most puzzling and embarrassing facts about contract law and contracts scholarship in the United States is that neither has found a consistent way to treat the real contracts of our lives: standardized consumer form contracts.”). ↑
  27.  See, e.g., Nancy S. Kim, Contract’s Adaptation and the Online Bargain, 79 U. Cin. L. Rev. 1327, 1342 (2011) (“Given that digital terms are weightless, reproduction and distribution costs non-existent, and consumers highly unlikely to read online agreements, companies could add additional terms with no concomitant financial or reputational cost. Companies began using their online agreements to do more than contain costs and assess the risks of doing business.”). ↑
  28.  Cf. Lizette Alvarez & Jeri Clausing, Senate Passes Bill Allowing Online Contract-Signing, Pittsburgh Post-Gazette, June 17, 2000, at A-1, A-7 (“‘The bill revolutionizes the way consumers, industry and government conduct business over the Internet,’ said Sen. Spencer Abraham, R-Mich. . . . . ‘It is a tremendous cost-cutting tool because people and businesses can now enter contractual arrangements without having to drive across town, fly thousands of miles for a meeting or mail reams of paper back and forth.’”). ↑
  29.  One classic is Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv. L. Rev. 1173, 1262 (1983) (arguing “invisible terms” in adhesion contracts should be presumptively unenforceable). I assume you think I am exaggerating above the line. But cf. Peter Linzer, Contract as Evil, 66 Hastings L.J. 971, 975 (2015). ↑
  30.  See Meirav Furth-Matzkin, On the Unexpected Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market, 9 J. Legal Analysis 1, 24, 39 (2017) (cataloguing a sample of Boston leases and finding a large percentage of unenforceable terms which likely affected consumer behavior). ↑
  31.  See Jonathan Swift, A Modest Proposal for Preventing the Children of Poor People in Ireland, from Being a Burden on Their Parents or Country, and for Making Them Beneficial to the Publick (1729). ↑
  32.  There’s nothing necessarily simpler or more transparent about the default rule regime. See Omri Ben-Shahar, Regulation Through Boilerplate: An Apologia, 112 Mich. L. Rev. 883, 889 (2014) [hereinafter Ben-Shahar, Regulation Through Boilerplate] (“Regulation by boilerplates means that one web of terms collected from many sources of law (the legally supplied default provisions) is replaced with a fairly comprehensive but concise substitute (boilerplate). The boilerplate version appears more complicated, but this is a superficial veneer due to the fact that boilerplates reproduce the entire set of governing rules in print.”); see also Russell Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U. Chi. L. Rev. 1203, 1205 (2003) (explaining the alternative to form contracts is imposed legal defaults). ↑
  33.  See infra text accompanying notes 83–86; cf. Rachel Leiser Levy, Judicial Interpretation of Employee Handbooks: The Creation of a Common Law Information-Eliciting Penalty Default Rule, 72 U. Chi. L. Rev. 695, 701–02 (2005) (outlining the history of courts’ treatment of employee handbooks). ↑
  34.  There is evidence that younger citizens increasingly treat contracting itself as a sort of low-stakes joke, driven by increasing exposure to online forms. See Hoffman, supra note 9, at 1597–98. Eroding contracting’s symbolic power puts pressure on other doctrinal rules deeply embedded in contract law. Cf. Tess Wilkinson-Ryan, David Hoffman & Emily Campbell, Expecting Specific Performance 13 (Inst. for L. & Econ., Research Paper No. 23-05, 2023) (noting that expectation damages under-compensate by leaving out the cost of moral harm). The empire of forms thus poisons real negotiated agreements, overall increasing the need for state enforcement. ↑
  35.  See 9 U.S.C. §§ 1–16, 201–208, 301–307. ↑
  36.  Cf. Samuel Issacharoff & Florencia Marotta-Wurgler, The Hollowed Out Common Law, 67 UCLA L. Rev. 600, 607–08 (2020) (illustrating the decline in state-made common law doctrine). ↑
  37.  Ben-Shahar, Regulation Through Boilerplate, supra note 32, at 888–89. ↑
  38.  For a general account of externalities and non-parties in contract law, see Omri Ben-Shahar, David A. Hoffman & Cathy Hwang, Nonparty Interests in Contract Law, 171 U. Pa. L. Rev. 1095, 1110–12 (2023); see also Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. Pa. L. Rev. 1, 52, 56–57 (2008) (“[D]ata on credit card choice and use show that consumer mistakes cost hundreds of dollars a year per consumer. . . . The aggregate costs are staggering.”). ↑
  39.  Cf. Salomé Viljoen, A Relational Theory of Data Governance, 131 Yale L.J. 573, 598–600 (2021) (noting the gap between individual and social values in privacy); Frischmann & Selinger, supra note 25, at 78 (noting that adherents are perfectly rational maximizers). ↑
  40.  See Meirav Furth-Matzkin & Roseanna Sommers, Consumer Psychology and the Problem of Fine-Print Fraud, 72 Stan. L. Rev. 503, 504, 512 (2020) (discussing individuals’ unwillingness to challenge unenforceable terms); Dennis P. Stolle & Andrew J. Slain, Standard Form Contracts and Contract Schemas: A Preliminary Investigation of the Effects of Exculpatory Clauses on Consumers’ Propensity to Sue, 15 Behav. Sci. & L. 83, 91 (1997) (finding that exculpatory language deterred hypothetical willingness to sue). ↑
  41.  See, e.g., Judith Resnik, supra note 14 (discussing the relationship between adhesion contracts and rights). ↑
  42.  I even split up the preemption footnote into multiple parts and won’t refer to it again here, lest you feel dispirited about the possibility of reform. ↑
  43.  Incentives matter, and toothy sanctions would marginally affect the likelihood of bad terms. But these solutions implicitly assume that cheap forms have positive social value. Perhaps strict liability is the right approach to this problem, not a negligence rule. ↑
  44.  To be clear, my argument is more attractive if you hold these beliefs, so I don’t try very hard to dissuade you either. ↑
  45.  See U.C.C. § 2-302 (Am. L. Inst. & Unif. L. Comm’n 2023) (covering unconscionability rules). ↑
  46.  See, e.g., 5 Williston on Contracts § 9:1 (4th ed.), Westlaw (database updated May 2023) [hereinafter Williston on Contracts] (describing capacity doctrines). ↑
  47.  See 9 Williston on Contracts, supra note 46, § 21:1 (describing the importance of written contracts in the rise of the statute of frauds). ↑
  48.  Hackney v. Morelite Constr. D.C. Corp., 418 A.2d 1062, 1065–67 (D.C. 1980) (recounting the anti-fraud role of the statute of frauds). ↑
  49.  See Rakoff, supra note 29, at 1178 n.13 (stating that without standardized contracts, “the making of offsetting transactions, covering, and the entire apparatus of speculation on an exchange would be impossible or much more difficult”); Jason Scott Johnston, The Return of Bargain: An Economic Theory of How Standard-Form Contracts Enable Cooperative Negotiation Between Businesses and Consumers, 104 Mich. L. Rev. 857, 865 (2005) (highlighting corporations’ use of employee discretion in departing from formal contractual terms); Restatement (Second) of Contracts § 211 cmt. a (Am. L. Inst. 1981) (“Standardization of agreements serves many of the same functions as standardization of goods and services; both are essential to a system of mass production and distribution.”). ↑
  50.  See infra text accompanying notes 66–68 (explaining the economics of boilerplate). ↑

  51.  Petition for Writ of Certiorari at 1, ML Genius Holdings LLC v. Google LLC, 143 S. Ct. 2658 (2023) (No. 22-121), 2022 WL 3227953, at *1. ↑

©Virginia Law Review Association. All rights reserved.