A Corpus Linguistic Analysis of “Foreign Tribunal”

Introduction

In March, the United States Supreme Court heard a case involving the issue of whether a private arbitration panel in another country is covered by the statutory phrase “foreign or international tribunal.”1.See Oral Argument, ZF Auto. US, Inc. v. Luxshare, Ltd., No. 21-401 (U.S. argued Mar. 23, 2022), https://www.oyez.org/cases/2021/21-401. That case is consolidated with AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, No. 21-518 (U.S. argued Mar. 23, 2022). However, the latter case involves a slightly different question: whether 28 U.S.C. § 1782 applies to investor-state arbitrations pursuant to international treaties. This paper will not address the underlying linguistic questions invoked by AlixPartners.Show More The statutory language, enacted in 1964, authorizes a federal district court to order witness testimony or production of evidence “for use in a proceeding in a foreign or international tribunal” if the witness or holder of the material resides or is found in the district.2.28 U.S.C. § 1782(a).Show More The Respondent here seeks to invoke this statutory authorization to assist them in private arbitration held in a foreign country.

Whether Respondent can so rely on this statute is no small matter. In the case, the Respondent, Luxshare, Ltd, plans to initiate private arbitration proceedings in Germany against Petitioner ZF Automotive US, Inc. The German arbitration arises out of a business dispute involving hundreds of millions of dollars in alleged damages,3.See Luxshare, Ltd. v. ZF Auto. US, Inc., 547 F. Supp. 3d 682, 686–87 (E.D. Mich.), cert. granted 142 S. Ct. 637 (2021).Show More under a private agreement calling for private commercial arbitration overseen by arbitrators who are private citizens selected and paid for by the parties.

At its core, this dispute hinges on a linguistic question: what did the term foreign tribunal mean in 1964? Petitioners argue that a foreign tribunal only refers to entities imbued with government or quasi-government authority. Respondent takes a broader view, arguing that foreign tribunal refers to any entity in a foreign country that can enter a decision and bind parties, even if that entity is purely private. The parties devote large chunks of their briefs to the underlying linguistic question, looking to dictionaries and various legal materials to support their position. But the parties’ attempts to divine the meaning of foreign tribunal suffer from shortcomings common to legal interpretation. This article turns to a tool that avoids these shortcomings and provides a more rigorous, objective, and transparent answer to the question at hand. That tool? Corpus linguistics.

Increasingly, our courts (including the U.S. Supreme Court) have looked to corpus linguistics to better answer the linguistic questions that judges face in interpreting the words of the law.4.Carpenter v. United States, 138 S. Ct. 2206, 2238–39 n.4 (2018) (Thomas, J., dissenting) (running a search in the Corpus of Founding-Era American English); Lucia v. S.E.C., 138 S. Ct. 2044, 2056 (2018) (Thomas, J., concurring, joined by Gorsuch, J.) (citing Jennifer Mascott, Who Are “Officers of the United States?” 70 Stan. L. Rev. 443 (2018)); Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1174 (2021) (Alito, J., concurring) (citing Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L. J. 788 (2018)); Bostock v. Clayton County, 140 S. Ct. 1731, 1769 n.22 (2020) (Alito, J., dissenting) (citing James C. Phillips, The Overlooked Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality 3 (unpublished manuscript) (May 11, 2020), https://ssrn.com/abstract=3585940.Show More Understandably, judges use economic tools to tackle economic questions and historical tools to answer historical questions. Should they not use linguistic tools for linguistic questions? “[W]ords are . . . the material of which laws are made. Everything depends on our understanding of them.”5.Garson Kanin, Conversations with Felix, Reader’s Digest, June 1964, at 116, 117 (replying to counsel who said a question from the bench was just a matter of semantics).Show More We can and should use the right tools for seeking this understanding.

This article will proceed in four parts. Part I presents the linguistic debate as framed by the parties, highlighting shortcomings of the traditional tools they employ. Part II explains how the tools of corpus linguistics can address these shortcomings. And Part III presents a corpus linguistic analysis of the terms foreign tribunal and foreign tribunal(s). This approach, more rigorous than that undertaken by the parties, can provide data on the linguistic question that undergirds the legal issue—which reading of the statute is more probable than the other. After all, a “problem in [legal interpretation] can seriously bother courts only when there is a contest between probabilities of meaning.”6.Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 528 (1947).Show More Corpus linguistics can help with that contest.

I. Background

The parties frame the linguistic debate at issue here as a question of the ordinary meaning of the statutory terms. They thus point to various sources to support their preferred reading of the statute, including dictionaries, ordinary usage, and legal usage. Some of these tools are a good start. But they do not provide a sufficiently objective, transparent basis for resolving the contest between dueling senses of the statutory terms at issue because they do not fully answer the linguistic question, instead requiring linguistic intuition to fill in the gaps.

A. The Linguistic Debate at Issue Here

1. Dictionaries

Both the petitioners and the respondent turn to dictionaries contemporaneous to the statute’s enactment to proffer a definition that supports their litigating position. They frame their reliance on dictionaries as a quest for the ordinary meaning of the statutory language. For example, ZF Automotive cites four contemporaneous ordinary dictionaries and one contemporaneous legal dictionary for the meaning of tribunal.7.See Brief for the Petitioners at 18, ZF Auto. US, Inc. v. Luxshare, Ltd., No. 21-401 (Jan. 24, 2022).Show More Respondent Luxshare likewise quotes two ordinary dictionaries and two legal dictionaries for tribunal, though strangely two of these dictionaries are of recent vintage—2019 and 1996—calling into question their utility. From these dictionaries emerge the following definitions. First, the narrower sense:

  • “[t]he seat of a judge;”8.Tribunal, Black’s Law Dictionary (4th ed. 1951); Webster’s Third New International Dictionary of the English Language Unabridged 2441 (1961) [hereinafter Webster’s Third (1961)].Show More “the bench on which a judge and his associates sit for administering justice”9.Webster’s Third (1961), supranote 8, at 2441.Show More
  • “[t]he whole body of judges who compose a jurisdiction”10 10.Tribunal, Black’s Law Dictionary (4th ed. 1951).Show More
  • “a court or forum of justice:”11 11.Webster’s Third (1961), supranote 8, at 2441; Merriam-Webster’s Dictionary of Law503 (1996).Show More “[a] seat or court of justice”12 12.The American Heritage Dictionary of the English Language 1369 (1969).Show More; “a judicial court”13 13.Tribunal, Black’s Law Dictionary (4th ed. 1951).Show More
  • “a judicial assembly”14 14.11 The Oxford English Dictionary 341 (1933).Show More

The 1969 edition of Ballentine’s Law Dictionary, which the parties did not cite, also defined tribunal as “[a] court. The seat or bench for the judge or judges of a court.”15 15.Ballentine’s Law Dictionary 1300 (1969).Show More

Second, the broader sense:

  • “[a] court of justice or other adjudicatory body”16 16.Black’s Law Dictionary 1814 (11th ed. 2019).Show More
  • “a person or body of persons having to hear and decide disputes so as to bind the parties”17 17.Merriam-Webster’s Dictionary of Law503(1996).Show More
  • “[a]nything having the power of determining or judging”18 18.The American Heritage Dictionary of the English Language 1369 (1969).Show More
  • a “person or body of persons having authority to hear and decide disputes so as to bind the disputants”19 19.Brief for the Petitioners, supra note 7, at 19 (quoting Webster’s Third (1961), supra note 8, at 2441).Show More

At least one other dictionary not cited by the parties—Funk & Wagnalls New Standard Dictionary of the English Language, published in 1960—included the narrow sense, though it is unclear whether it also included the broad sense given the example it used to illustrate, which at first seems like the broader sense but may actually be referring to an international tribunal that has government authority: “1. A court of justice; any judicial body, as a board of arbitrators. 2. The seat set apart for judges, magistrates, etc.”20 20.Funk & Wagnalls New Standard Dictionary of the English Language 1340 (1960).Show More

Thus, dictionaries reveal that, around 1964, there were at least two senses of tribunal. One sense, common to every dictionary we or the parties could find, legal or ordinary, was narrow in nature and referred mostly to courts. The other, found in two (maybe three) ordinary dictionaries (and two later legal dictionaries that we are not giving weight to, given their date of publication), was broad in nature and could cover private arbitration bodies. One could be tempted from this evidence to infer that the narrow sense was the more common of the two senses. But as described below, such an inference would be a mistake based merely on dictionary frequencies. Likewise, parties sometimes refer to a “lead legal definition[],” “primary definition[],” or “secondary definition.”21 21.Brief for the Petitioners, supra note 7, at 19–20.Show More As described below, such labels are mistaken when derived from dictionaries.22 22.It is worth noting that no contemporaneous legal dictionary included the broader sense of tribunal. This could indicate a divergence from the ordinary and the legal meanings of the word.Show More

None of the dictionaries defined the actual statutory terms, leaving the parties to look up their constituent words in dictionaries. Thus, the parties also looked up the definition of foreign.23 23.SeeBrief for the Petitioners, supra note 7, at 19; Brief for the Respondent at 12, ZF Auto. US, Inc. v. Luxshare, Ltd., No. 21-401 (filed Feb. 23, 2022).Show More “Putting these definitions together,” the petitioners argued that the statutory terms “most naturally refer[] to a court or other governmental adjudicative or quasi-adjudicative body convened to render justice.”24 24.SeeBrief for the Petitioners, supra note 7, at 19.Show More Thus, the terms do “not encompass a private arbitral panel whose authority derives solely from the contractual agreement of private parties rather than any government, and which is not composed of government adjudicators.”25 25.Id.Show More Respondents never put the two terms together to create a definition for foreign tribunal, but rather use dictionaries to argue that private commercial arbitration panels in foreign countries satisfy both the definition for foreign and the definition for tribunal.26 26.SeeBrief for the Respondent, supra note 23, at 12–14.Show More

2. Ordinary Usage

The parties claim to look at “ordinary” usage to support their legal positions. Hence, in rejecting a definition of foreign that could mean just located in a foreign country and instead embracing a definition that means belonging to another country, ZF Automotive presented examples such as “foreign leader,” “foreign official,” “foreign flag,” “foreign law,” and “foreign country.”27 27.Brief for the Petitioners, supra note 7, at 20–21.Show More From this, the petitioners concluded that “[w]hen the word ‘foreign’ modifies a noun with potential governmental or sovereign connotations—like ‘tribunal’—it typically indicates that the noun belongs to the sovereign entity.”28 28.Brief for the Petitioners, supra note 7, at 20.Show More However, neither party actually presented any evidence of ordinary usage of the term foreign tribunal. And Luxshare’s evidence of ordinary meaning was “dictionaries [some being legal dictionaries], judicial opinions, and other legal sources.”29 29.SeeBrief for the Respondent, supra note 23, at 13.Show More Legal sources are not very good indicators of ordinary meaning.

3. Legal Usage

Finally, the parties turned to legal usage. Thus, petitioners looked at the use of the term foreign as a modifier in other portions of the 1964 Act, how Congress has both used the term tribunal and described private arbitration, and how federal courts and legal scholars have used the terms foreign tribunal and arbitral tribunal.30 30.SeeBrief for the Petitioners, supra note 7, at 21–25.Show More Likewise, respondent turned to a recent (2021) legal treatise, recent caselaw (2004 & 1997), and German law in defining foreign. Then, it used federal judicial usage (both recent and contemporaneous to 1964), the same recent legal treatise, various arbitration bodies’ rules, the Geneva Treaties, and legal commentary and scholarship to support its reading of tribunal.31 31.SeeBrief for the Respondent, supra note 23, at 13.Show More

B. The Weakness with the Parties’ Evidence & Methodologies

1. The Limitations of Dictionaries

a. Non-compositionality

Dictionaries generally define single words, not multi-word terms or phrases. Thus, if relying on dictionaries, one has to slice and dice statutory text rather than looking up the whole operative phrase. But this is deeply problematic. That is because of the linguistic phenomenon of non-compositional expression, wherein “a particular word sequence should be considered a single lexical item.”32 32.Alan Cruse, Meaning in Language: An Introduction to Semantics and Pragmatics 82 (3d ed. 2011).Show More

Normally, the principle of compositionality applies. Linguists define compositionality as when “[t]he meaning of a semantically complex expression is a compositional function of the meanings of its semantic constituents.”33 33.Id. at 84.Show More In other words, often what you see is what you get: cherry pie is a pie made from cherries.

But sometimes, “the combination of words has a meaning of its own that is not a reliable amalgamation of the components at all,” such as for good or at all.34 34.Alison Wray, Why Are We So Sure We Know What a Word Is?, in The Oxford Handbook of the Word 725, 737 (John R. Taylor ed., 2015).Show More In short, a phrase may be more (or less) than the sum of its parts. Related to “non-compositionality” is the idiom principle: “a language user has available to him or her a large number of semi-preconstructed phrases that constitute single choices [in communication], even though they might appear to be analysable into segments.”35 35.John McH. Sinclair, Collocation: A Progress Report, in 2 Language Topics: Essays in Honour of Michael Halliday 319, 320 (Ross Steele & Terry Threadgold eds., 1987).Show More Take, for example, of course or in fact. Looking up their constituent words separately will not tell one the idiomatic meaning of the combined phrase. Non-compositional expressions come in several varieties, such as phrasal idioms (pulling someone’s leg); cliches, grammatical idioms (by and large), and frozen metaphors (the ball’s in your court).36 36.See Cruse, supranote 32, at 86–91.Show More

The Supreme Court has recognized this linguistic phenomenon, observing that “two words together may assume a more particular meaning than those words in isolation.”37 37.FCC v. AT&T Inc., 562 U.S. 397, 406 (2011).Show More In fact, in a different area of law—trademark law—the Court has noted this principle for over a century, which has come to be known as the Anti-Dissection Rule.38 38.See 2 McCarthy on Trademarks and UnfairCompetition § 11:27 (5th ed.) (“Under the anti-dissection rule, a composite mark is tested for its validity and distinctiveness by looking at it as a whole, rather than dissecting it into its component parts.”).Show More This same principle can and should be applied to statutory interpretation so that the meaning of a multi-word term or phrase should be “derived from it as a whole, not from its elements separated and considered in detail”—“it should be considered in its entirety.”39 39.Est. of P.D. Beckwith, Inc., v. Comm’r of Pats., 252 U.S. 538, 545–46 (1920).Show More Judge Frank Easterbrook perhaps put this most colorfully when he observed in a trademark case involving a church’s name:

[T]he World Church produced . . . nothing but a dictionary. It did not offer any evidence about how religious adherents use or understand the phrase as a unit. It offered only lexicographers’ definitions of the individual words. That won’t cut the mustard, because dictionaries reveal a range of historical meanings rather than how people use a particular phrase in contemporary culture. (Similarly, looking up the words “cut” and “mustard” would not reveal the meaning of the phrase we just used.)40 40.TE-TA-MA Truth Found.—Fam. of URI, Inc. v. World Church of the Creator, 297 F.3d 662, 666 (7th Cir. 2002) (emphasis added).Show More

Thus, looking up the words foreign and tribunal in dictionaries may not give us a complete and accurate meaning of foreign tribunal. Yet because the parties were heavily relying on dictionaries, that is exactly what they resorted to here. This same criticism can be levied at the parties for looking at the usage in legal materials of just the words foreign, international, and tribunal.

b. Dictionaries as “museums of words” and linguistic intuition

Relatedly, dictionaries are not always very useful for dealing with context. That is because dictionaries are just “museum[s] of words”41 41.Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 67 (1994).Show More—“historical records (as reliable as the judgment and industry of the editors) of the meanings with which words have in fact been used by writers of good repute.”42 42.Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1375 (1994).Show More Hence, dictionaries “are often useful in answering hard questions of whether, in an appropriate context, a particular meaning is linguistically permissible,” not what is linguistically probable in a given context.43 43.Id. at 1375–76.Show More

Thus, when lawyers, scholars, or jurists countenance one dictionary definition over another as the ordinary meaning of a word or phrase, that tells us more about their linguistic intuition than the dictionary because it is that intuition that is the analytical bridge from dictionary evidence to the interpretive conclusion. After all, dictionaries do not indicate which sense of a word is the ordinary sense—that would depend on context. And besides a lack of transparency, that intuition has at least two pitfalls stemming from the fact that an individual’s linguistic intuition is informed by her exposure to language over her lifetime. The first limitation of linguistic intuition, at least for most lawyers, scholars, and judges, is that they are seldom representative of ordinary members of society, tending to hail from more elite social circles with much more education. These demographic factors influence the language to which they are exposed.

Second, even if an attorney, academic, or judge was just an ordinary person who ran in ordinary circles with an ordinary level and source of education, she is still a product of her time. And that time confines—even distorts—her ability to properly intuit meaning from a time during which she did not live. That is due to the reality of linguistic drift. If the English language were static, then statutes written in an earlier time would not pose challenges to a later person’s linguistic intuition. But English is not static. Over time, meanings can change, sometimes dramatically and quickly. Take the constitutional term domestic violence. From the 1770s through the 1970s, the term consistently meant insurrection, rebellion, or rioting within a state.44 44.Thomas R. Lee & James C. Phillips, Data-Driven Originalism, 167 U. Pa. L. Rev. 261, 298–300 (2019).Show More But starting in the 1980s, that began to change, and by the 1990s, domestic violence almost always means “violent or aggressive behavior within the home, esp[ecially] violent abuse of a partner.”45 45.Domestic Violence, Oxford English Dictionary Online (Mar. 2006), https://www.oed.com/view/Entry/56663?redirectedFrom=domestic+violence#eid41827739 [https://perma.cc/A5ZN-RQRV]; Lee & Phillips, supra note 44,at 300.Show More The previous sense that dominated for two centuries has now almost completely fallen out of use. And that shift occurred within less than two decades. Thus, someone relying on her own linguistic intuition formed in a time after a statute was adopted may miss that linguistic drift had occurred and inaccurately understand a statutory word or phrase.

Yet, when the parties, namely their well-educated and arguably upper-class lawyers, propose ordinary usage terms, like “foreign leader” or “foreign flag,” they are relying on their linguistic intuition formed by language exposure long after the statute was enacted.

c. “Lexicographical prescriptivism”

In the 1960s, Webster’s Third International Dictionary made a move deemed controversial in the world of lexicography: it decided to define words according to actual usage rather than proper usage.46 46.James Sledd & Wilma R. Ebbitt, Dictionaries and That Dictionary 79 (1962) (quoting the editor-in-chief of Webster’s Third as stating that “the dictionary’s purpose was to report the language, not to prescribe what belonged in it”). Because of this move, Justice Scalia rejected Webster’s Third, preferring Webster’s Second. See James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 508–09 (2013) (noting that Scalia’s reliance “on Webster’s Second and American Heritage—identified as belonging to the prescriptive camp—far more than Webster’s Third, the poster child for descriptive dictionaries,” is a “preference” that “is not inadvertent: Scalia has disparaged Webster’s Third in his opinions . . . and in his recent book”). Scalia’s rejection of Webster’s Third is ironic given his purported aim of understanding words in legal texts according to how people at the time would have understood them.Show More This move to descriptive definitions rather than normative ones was a break from the past as “[l]exicographical prescriptivism in the United States is exactly as old as the making of dictionaries, because of the role played by the dictionary in a society characterized by a great deal of linguistic insecurity.”47 47.Henri Béjoint, Tradition and Innovation in Modern English Dictionaries 116 (1994).Show More

Normative, or prescriptive, dictionaries “establish[] what is right in meaning and pronunciation,” providing users with what the lexicographer deems the “proper” usage of each word.48 48.Sledd & Ebbitt, supra note 46, at 57.Show More Therefore, “the prescriptive school of thought relie[d] heavily on the editors of dictionaries to define and publish the proper meaning and usage of the terms.”49 49.Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227, 242 (1999).Show More In contrast, “[t]he editors of a descriptive dictionary describe how a word is being used and, unlike their prescriptive counterparts, do not decide how a word should be used.”50 50.Id.Show More To the extent any dictionary is prescriptive, it is less useful for determining how people actually used language—and dictionaries before and during the 1960s, outside of Webster’s Third, tend to be of the prescriptive variety.51 51.Granted, to the extent people rely on dictionaries, even a prescriptive definition could somewhat reflect how people understood language, though it is second-best evidence.Show More And these are many of the very dictionaries relied on by the parties here.

d. Relying on dictionary sense-ordering

Dictionaries list senses in numerical order. This sometimes gives rise to what has been called the “sense-ranking fallacy.”52 52.See Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915, 1926–29 (2010).Show More That fallacy is to deem a sense listed before another as being more “primary.” Justice Breyer did this in Muscarello v. United States.53 53.524 U.S. 125 (1998).Show More In looking at the verb carry, Justice Breyer deemed one sense as “primary” and another as “special,” in part because he observed that the “primary” sense occurred first in three dictionaries, whereas the “special” sense was numerically ranked lower.54 54.Id. at 128–31.Show More This sense-ordering caused Justice Breyer to consider the sense listed sooner as more ordinary.

Such a conclusion is flawed because dictionaries do not claim that the ordering of senses is based on which are more common, frequent, or ordinary.55 55.As has been noted elsewhere, the one exception to this is The Random House Dictionary of the English Language. SeeLee & Mouritsen, supra note 4, at 808 n.89 (observing that dictionary’s front matter declares that “a general policy of putting the most frequently used meanings . . . at the beginning of the entry, followed by other senses in diminishing usage, with archaic, and obsolete senses coming last”) (citing Random House Dictionary of the English Language—Unabridged, at viii (2d ed. 1987) [hereinafter Random House]). However, that dictionary was not cited by the parties here (and would only provide half of the relevant term), and as Lee and Mouritsen note, there are “grounds for skepticism of these sorts of claims” given the way dictionaries are constructed, with even Random House conceding that “sense ranking based on frequency holds only ‘generally.’” Id. (quoting Random House, supra, at xxii).Show More Rather, senses are either ordered based on when they were deemed to have historically entered the lexicon,56 56.1 The Oxford English Dictionary xxix (2d ed. 1989) (“[T]hat sense is placed first which was actually the earliest in the language: the others follow in order in which they appear to have arisen.”).Show More or they are admittedly “an arbitrary arrangement or rearrangement.”57 57.Webster’s Third New International Dictionary of the English Language Unabridged 19a (1971).Show More Thus, at least based on the order senses appear in dictionaries, there is no “primary,” “lead,” or “secondary” sense, as some of the parties argued here.

e. Sense frequency across dictionaries

Another common mistake is to deem a sense that occurs more often across multiple dictionaries as the more common, ordinary, or primary sense.58 58.SeeJohn Mikhail, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523–1806, at 8–10 (July 12, 2017) (unpublished manuscript) (surveying 50 founding-era dictionaries and concluding that because 100% of the entries included at least one element of the broad definition of emolument, and only 8% of the entries included an office or employment-related definition, the word must have been understand at the founding in its broad sense); see alsoJames Cleith Phillips & Sara White, The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English from 1760–1799, 59 S. Tex. L. Rev. 181, 196–97 (2017) (critiquing Mikhail for this analysis).Show More This misses the fact that the very “‘system of separating senses’ is ‘only a lexical convenience.’”59 59.Lee & Mouritsen, supranote 4, at 809 n.90 (quoting Webster’s Third (1971), supra note 57, at 19a).Show More And dictionaries do not agree as to where to draw the line. That is because “[l]exicographers tend to fall into one of two categories when it comes to writing definitions: lumpers and splitters.”60 60.Kory Stamper, Word by Word: The Secret Life of Dictionaries 119 (2017); see also The Routledge Handbook of Corpus Linguistics 433–34 (Anne O’Keeffe & Michael McCarthy eds., 2010) (discussing “lumpers” and “splitters”).Show More A lumper “tend[s] to write broad definitions that can cover several or more minor variations on that meaning.”61 61.Stamper, supranote 60, at 119.Show More By contrast, a splitter “tend[s] to write discrete definitions for each of those minor variations.”62 62.Id.Show More

Additionally, “[t]he history of English lexicography usually consists of a recital of successive and often successful acts of piracy.”63 63.Sidney I. Landau, Dictionaries: The Art and Craft of Lexicography 35 (1984).Show More This tendency, at least historically, for dictionaries to use the definitions of other dictionaries, “can create a false consensus whereby it looks like all of the dictionaries independently agree, and thus reflect contemporaneous linguistic reality, but in actuality only reflect the views . . . of a few dictionary makers.”64 64.Phillips & White, supranote 58, at 191.Show More To what extent lexicographical piracy was occurring in the 1950s and 60s is uncertain. Many of the dictionaries the parties cite here have identical or near identical definitions, though. At the very least, extreme caution is warranted in surmising anything from the frequency of senses when surveying multiple dictionaries.65 65.SeeLee & Mouritsen, supranote 4, at 810 n.98 (“[T]he methods that [dictionaries] use to sample language use don’t create a reliable sample—aggregating dictionaries isn’t going to accomplish anything if none of them has a reliable sample of language usage.”).Show More

2. Non-Systematic Usage Sampling

To overcome the limitations of dictionaries, one can sample actual usage of the complete term at issue. The parties do this, but not in a systematic way or in sufficient numbers that we can have much confidence. Like dictionaries, these examples of language usage have the potential to suffer from the same defect of relying on legislative history—looking out among the crowd and calling on one’s friends. Or, to put it more bluntly, cherry-picking examples that support one’s position. The parties only present a handful of samples of usage and often they rely on just the usage of one of the words of the multi-word term. Much more is needed to have any confidence in the results. And the sampling must either be random (if there are sufficient examples to need to sample) or weighted towards the usage that is closest in time to the relevant date—here, 1964. What is more, parties are prone to read the data in a way favorable to their position, even if only subconsciously through confirmation bias or motivated reasoning. Our methods below help overcome these shortcomings.

II. A Brief Introduction to Corpus Linguistics

Due to the above-noted limitations with traditional statutory interpretive methodology and tools, something better is needed. Corpus linguistics has the potential to be that something better66 66.For a broader discussion of this, see generallyLee & Mouritsen, supra note 4 (arguing that corpus linguistics can provide answers to questions regarding statutory interpretation).Show More—in the words of Law Professor Larry Solum, to “revolutionize statutory . . . interpretation.”67 67.Amanda K. Fronk, Big Lang at BYU, BYU Magazine (Summer 2017), https://magazine.byu.edu/article/big-lang-at-byu/ [https://perma.cc/23QK-W3GJ].Show More In this sense, corpus linguistics is akin to a paradigm-shifting technology or tool like the Hubble Telescope. Certainly, astronomers could glimpse the heavens from earth before the Hubble was launched. But the increased clarity and scope the Hubble brought to astronomic inquiries was revolutionary. What is more, corpus analysis brings transparency—researchers, courts, and parties can access the corpus and perform the same searches to analyze the data for themselves.

While corpus linguistics and corpora may sound exotic, they are not. A language corpus is similar in some regards to a corpus (or body) of precedent. Moreover, corpora are used in the construction of most modern dictionaries.68 68.Hans Lindquist, Corpus Linguistics and the Description of English 52 (2009) (observing that “today all major British dictionary publishers have their own corpora . . . . The editors use concordances to find out the typical meanings and constructions in which each word is used, and try to evaluate which of these are worth mentioning in the dictionary. Many dictionaries also quote authentic examples from corpora, either verbatim or in a slightly doctored form.”).Show More Corpus linguistics—a robust empirical methodology within the field of linguistics—provides a variety of methods for analyzing a corpus to answer legal interpretive questions.

A. The Purpose of Corpus Linguistics

Corpus linguistics is the empirical study of language using samples (or bodies) of texts called corpora (in the plural). A corpus is constructed in order to study a particular register (variety of texts associated with a situational context) or speech community (group of language users who share the same dialect or language norms).69 69.Tony McEnery & Andrew Hardie, Corpus Linguistics: Method, Theory and Practice 1–2 (2012).Show More Corpus linguistics is premised on the idea that “the best way to find out about how language works is by analyzing real examples of language as it is actually used.”70 70.Paul Baker et al., Glossary of Corpus Linguistics 65 (2006).Show More In studying naturally occurring language use, corpus linguistics can avoid the observer’s paradox—the phenomenon whereby people tend to change their behavior when they are aware they are being studied (i.e., the Hawthorne Effect).71 71.Henry A. Landsberger, Hawthorne Revisited: Management and the Worker, Its Critics, and Developments in Human Relations in Industry 14–15, 23 (1958).Show More

Corpus linguistics is founded on two premises: (1) that a corpus of texts can be constructed to be sufficiently representative of a particular register or speech community, and (2) that one can “empirically describe patterns of language use through analysis of that corpus.”72 72.The Cambridge Handbook of English Corpus Linguistics 1 (Douglas Biber & Randi Reppen eds., 2015).Show More So corpus linguistics “depends on both quantitative and qualitative analy[sis].”73 73.Douglas Biber, Corpus-Based and Corpus-Driven Analyses of Language Variation and Use, in The Oxford Handbook of Linguistic Analysis 160 (Bernd Heine & Heiko Narrog eds., 2010).Show More And corpus linguistics results “in research findings that have much greater generalizability and validity than would otherwise be feasible.”74 74.Id. at 159.Show More Because “a key goal of corpus linguistics is to aim for replicability of results, researchers and data creators have an important duty to discharge in ensuring the data they produce is made available to analysts in the future.”75 75.McEnery & Hardie, supranote 69, at 66.Show More

B. Corpora

A corpus can be made of any kind of naturally occurring texts. Common examples include collections of samples of newspapers articles, books, or legal documents. The utility of a corpus will depend on the degree to which it represents the target language domain of interest. Corpus representativeness depends on two key considerations—“what types of texts should be included in the corpus and how many texts are required.”76 76.Jesse Egbert et al., Designing and Evaluating Language Corpora: A Practical Framework for Corpus Representatives (2022).Show More What is true for computing is true for corpus linguistics: “garbage in, garbage out,” as corpus-based results can be no better than the corpus being used (and it can be worse if the corpus data is not properly analyzed).77 77.United States v. Esquivel-Rios, 725 F.3d 1231, 1234 (10th Cir. 2013) (Gorsuch, J., majority opinion) (“Garbage in, garbage out. Everyone knows that much about computers: you give them bad data, they give you bad results.”).Show More If a corpus does not adequately represent the texts used within the register or by the speech community one wants to make observations about, then other features of the corpus, such as its size, will make little difference. For example, a corpus composed of the transcripts of the television show Game of Thrones will not tell us much about language usage among early 20th century Ethiopian children, no matter how big the corpus is. The corpus must match and represent the register or group about which one wants to draw inferences. Otherwise, one cannot make generalizations about the larger register or speech community of interest. Hence, using Google for corpus linguistics research is arguably not very effective because the searchable web represents a wide range of registers and speech communities.78 78.See Douglas Biber & Jesse Egbert, Register Variation Online 6–7 (2018).Show More

C. Corpus Linguistic Methods

There are a large number of linguistic methods that have been developed and applied to corpus data. We first introduce a selection of methods that have been used for legal interpretation. Then we briefly introduce several other methods that are used within the larger field of corpus linguistics. Perhaps the most basic method for quantitatively analyzing corpus data is frequency—measuring how often, for instance, a word is used over time or in different types of texts (i.e., registers or genres).79 79.Tony McEnery & Andrew Wilson, Corpus Linguistics: An Introduction 82 (2d ed. 2001).Show More

Another corpus method commonly used in legal interpretive research is concordance line analysis. These can be used for qualitative analysis or in order to get at frequency data. Concordance lines are excerpts from texts centered on a search term. In cases where there are many hits resulting from a corpus query, researchers can extract a random sample of concordance lines from the corpus.

To get meaning out of the concordance lines often requires classifying (or “coding”) the search results. We recommend that researchers base concordance line coding on the best practices and principles of content analysis and survey methodologies.80 80.See James C. Phillips & Jesse Egbert, Advancing Law and Corpus Linguistics: Importing Principles and Practices from Survey and Content-Analysis Methodologies to Improve Corpus Design and Analysis, 2017 BYU L. Rev. 1589, 1608 (2017) (“Law and corpus linguistics can learn from the methodologies employed, and the reasons driving those methodologies, in fields that use content-analysis, such as media studies. Specifically, these methodologies can inform and improve what, how, and who codes search results from corpus analysis.”).Show More For instance, one could search for a particular word, then classify each result presented in a concordance line according to a particular sense of that word. Additionally, if greater context than one sentence is needed, one can expand the size of the text excerpt surrounding the search hit to account for more context. In this way, one could analyze the results to determine something a dictionary cannot usually convey: which sense is more common in a given context (i.e., the distribution of senses). This particular exercise, using concordance lines to classify senses, has proven to be an effective method for addressing questions regarding the meaning of words and phrases in legal texts. Further, the nature of the search results prevents one from cherry-picking examples. Of course, classifying senses involves a measure of subjectivity in considering the context to properly classify (or code) a sense. But as explained further below, we have taken measures to minimize this subjectivity.

Another tool found in most corpora is collocation. Some words “co-locate” more frequently than other words. One can think of this phenomenon as “word neighbors.” These semantic patterns of word association can sometimes be intuitive: we expect dark to appear more often in the same semantic environment as night than with perfume. But sometimes the patterns are surprising. This linguistic phenomenon has long been implicitly recognized in the law in the canon of construction called noscitur a sociis: “it is known by its associates.”81 81.Noscitur a sociis, Black’s Law Dictionary (10th ed. 2014).Show More Linguists just put it a slightly different way: “[y]ou shall know a word by the company it keeps!”82 82.John Rupert Firth, A Synopsis of Linguistic Theory, 1930–1955, in Studies in Linguistic Analysis 11 (1957).Show More

By seeing which words are collocates of each other, we can sometimes get additional insight into how people understand those words. This can be done in a corpus by searching for a word and indicating (1) how many words to the left or right (or both) of the search term one wants to examine, and (2) which statistical measure (e.g., frequency, MI score, T score) will be used to measure the strength of association.83 83.SeeJesse Egbert, Tove Larsson & Douglas Biber, Doing Linguistics with a Corpus: Methodological Considerations for the Everyday User 25–29 (2020).Show More In this way, researchers are able to estimate how common it is for words to co-occur in close proximity. We can also use collocate analysis to see how usage patterns change. For instance, one of us in an earlier paper noted that the top five collocates (in raw frequency) of the term domestic violence from 1760-1979 were (1) against, (2) state(s), (3) protect, (4) convened, and (5) invasion.84 84.Lee & Phillips, supranote 44, at 298 tbl.1.Show More This reflects the sense as used in the Constitution of a rebellion or insurrection within a state. But the top five collocates of domestic violence from 1980-2009 showed a radical shift: (1) women, (2) abuse(d), (3) honor, (4) national, and (5) victims.85 85.Id.Show More These collocates reflect the sense of violence against a member of one’s household.

Besides analysis at the word or phrasal level, through a corpus search one can consider grammatical context by looking at a term or phrase in a specific syntactic structure (i.e., a noun modified by a particular adjective). For example, in a recent paper, one of us applied grammatical analysis of corpus data to determine whether language users use the term vehicle to refer to scooters.86 86.Daniel Keller & Jesse Egbert, Hypothesis Testing Ordinary Meaning, 86 Brook. L. Rev. 489, 505–32 (2021).Show More To do this, we identified 230 instances where scooter occurred in close proximity with vehicle, and then we classified each of these into one of three categories: (1) scooters are referred to as vehicles, (2) scooters are not referred to as vehicles, and (3) inconclusive. For each of these categories, we established a number of grammatical structures that clearly indicated the category. Based on this, we found that scooters are referred to as vehicles in 87% of the cases where the data is conclusive.

There are other methods in corpus linguistics that we have not discussed in this section. Among these are methods that have been used in previous legal scholarship (e.g., n-grams87 87.Lee & Phillips, supranote 44, at 304 & tbl.3.Show More or lexical bundles88 88.Douglas Biber, Susan Conrad, & Viviana Cortes, If you look at . . .: Lexical Bundles in University Teaching and Textbooks, 25 Applied Linguistics 371 (2004).Show More), as well as many others—such as dispersion,89 89.See Jesse Egbert, Brent Burch, & Douglas Biber, Lexical Dispersion and Corpus Design, 25 Int’l J. Corpus Linguistics 89–90 (2020); Stefan Th. Gries, Dispersions and Adjusted Frequencies in Corpora, 13 Int’l J. Corpus Linguistics 403 (2008).Show More keyword analysis,90 90.Jesse Egbert & Douglas Biber, Incorporating Text Dispersion into Keyword Analyses, 14 Corpora 77–78 (2019); Mike Scott, PC Analysis of Key Words—And Key Key Words, 25 System 233 (1997).Show More collostructional analysis,91 91.Stefan Th. Gries, & Anatol Stefanowitsch, Extending Collostructional Analysis: A Corpus-Based Perspective on ‘Alternations’, 9 Int’l J. Corpus Linguistics 97 (2004).Show More text type analysis,92 92.Douglas Biber & Edward Finegan, An Initial Typology of English Text Types, in Corpus Linguistics II: New Studies in the Analysis and Exploitation of Computer Corpora 19 (Jan Aarts and Willem Meijs eds., 1986).Show More multi-dimensional analysis,93 93.Douglas Biber, Variation Across Speech and Writing 24 (1988).Show More—that could potentially be used to address legal interpretative questions as research at the intersection of corpus linguistics and legal interpretation continues to grow.

III. Corpus Linguistic Analysis

A. Selecting a Corpus

While the parties never pointed to an instance of the term foreign tribunal(s) being used in a source of ordinary American English, the parties did argue that the term should be understood according to its ordinary meaning. To look at this, we turned to the Corpus of Historical American English, or COHA (pronounced koh-uh).94 94.Corpus of Historical American English, (2021) [hereinafter COHA] https://www.english-corpora.org/coha/ [https://perma.cc/K3VN-JFJD].Show More COHA “is the largest structured corpus of historical English.”95 95.Id.Show More It contains more than 475 million words from 115,000 texts ranging from the 1820s to the 2010s.96 96.Id.Show More It is balanced by genre within each decade, with texts from four types of genres (or registers): fiction, magazines, newspapers, and non-fiction. COHA is also “balanced across decades for sub-genres and domains as well (e.g., by Library of Congress classification for non-fiction; and by sub-genre for fiction—prose, poetry, drama, etc.)”97 97.Id.Show More Further, “[t]his balance across genres and sub-genres allows researchers to examine changes and be reasonably certain that the data reflects actual changes in the ‘real world,’ rather than just being artifacts of a changing genre balance.”98 98.Id.Show More

While claiming they were looking at ordinary meaning, the parties also looked at various legal sources: cases, statutes, and legal scholarship. For cases, we first turned to the Corpus of Supreme Court Opinions of the United States, which “includes all opinions in the United States Reports and opinions published by the Supreme Court through the 2017 term,” resulting in a corpus of about 98 million words and 62,000 texts.99 99.See Corpus of Supreme Court Opinions of the United States (hereinafter COSCO-US), https://lawcorpus.byu.edu/coscous/concordances [https://perma.cc/Y9L4-8EVG].Show More As there are no other corpora created for the remaining sources of legal documents the parties relied on, for federal cases we turned to Westlaw, for U.S. statutes we turned to HeinOnline’s U.S. Code, and for legal scholarship we turned to HeinOnline’s Core U.S. journals database.

B. Best Coding Practices

Given the subjective nature of coding—reading samples of language usage to try and classify that usage into a sense of a word or term—and the tendency of people to read evidence to confirm their pre-existing position or in light of their own biases, we implemented some best practices for the sense-coding portion of our analysis.100 100.See generallyJames C. Phillips & Jesse Egbert, Advancing Law and Corpus Linguistics: Importing Principles and Practices from Survey and Content-Analysis Methodologies to Improve Corpus Design and Analysis, 2017 BYU L. Rev. 1589, 1613–14 (2017).Show More We do this to pursue the twin pillars of good social science research: reliability and validity. Reliability, which could also be called replicability, is the ability of others to replicate the results. Validity is the accuracy of the results in measuring the phenomena claimed to be measured.

To achieve reliability and validity, we used two coders, with both coders coding all of the material independently of each other. We did this so we could see the rate of agreement between the coders. A low rate could mean the material is too difficult to code or that one coder is providing an idiosyncratic view of the material. Having two coders with a high rate of agreement provides greater confidence that the results are accurate and that others will reach similar results. Second, at least one of the coders, if not both, was completely blind to what the authors thought the results would be, thus eliminating any thumbs on the scale, so to speak. If coders think a certain outcome is expected or more likely, they may lean that way in their coding, so having the coders “blind” to such information helps mitigate confirmation bias or motivated reasoning, increasing both validity and reliability. Third, we only coded one instance of a term in a document, coding the first. We did this because multiple uses of a term in the same document are likely to take on the same sense, thus biasing the overall numbers if they are counted as separate instances. Public opinion pollsters do something similar, randomly sampling households rather than individuals since the opinions of members of the same household are highly correlated.

C. “Foreign Tribunal”

1. Corpus of Historical American English (COHA)

To determine what the term foreign tribunal, in both its singular and plural form, meant in “ordinary” American English, we turned to COHA. In the more than 298 million words found in the corpus through 1964 (the cut-off year for our search),101 101.COHA, supra note 94. To calculate this number, we subtracted the number of words from the 1970s–2010s, as well as half of the words for the 1960s, a combined total of 176,666,079 words, from the total words in COHA (475,031,831), resulting in a total of 298,365,752 words.Show More the term only showed up six times in six documents, and never again after 1895.102 102.Searching foreign tribunal in COHA yields both singular and plural results.Show More At the very least, this means that the term foreign tribunal(s) is a rare one in “ordinary” American English, and this may mean that there is no ordinary meaning of the term and that it only has a legal meaning.103 103.And one of the hits from COHA came from a legal source: Kent’s Commentaries on American Law. See James C. Phillips & Jesse Egbert, Appendices to a Corpus Linguistic Analysis of “Foreign Tribunal,” at app. 1 (Mar. 20, 2022) [hereinafter Appendices], https://pa​pers.ssrn.com/sol3/papers.cfm?abstract_id=4052959 [https://perma.cc/KYR3-3CS2]; James Kent, Commentaries on American Law, 24 N. Am. Rev. 345, 358 (1827).Show More

We only coded one of the instances in the document that had two for reasons noted above, resulting in six hits.104 104.See Appendices, supra note 103, at app. 1.Show More These six instances of the term were each independently coded by two coders. Coders determined the sense of foreign tribunal being used. They were given the following options and directions:

  • Government sense: a tribunal that operates under government authority, such as a court
  • Private/non-government: a tribunal that operates under non-governmental/private authority, such as private arbitration
  • Other: if the term being used to describe something that does not fit into the first two categories
  • Unclear: you cannot tell, which could be because there is not enough information or because you are not sure whether the tribunal mentioned fits into the government or non-government category

The first coder classified all six instances as falling under the government-authority sense. The second coder classified four of the instances as invoking the government-authority sense and two of the instances of the term as being unclear. Not once did a coder deem a use of foreign tribunal(s) in COHA to invoke the private-authority sense, nor did either coder deem any other sense as being used.

We also asked the coders to record the specific type of tribunal being discussed, such as a court, a legislature, arbitration, etc. For the six COHA instances, one coder deemed five references as being to a court and one reference as unclear, while the other deemed four of the six to be to a court, one to be to a state legislature, and the other to be unclear. Not once did a coder conclude the use of the term foreign tribunal(s) referred to arbitration. Of course, having only six instances of the term, and none after 1895, severely limits the conclusions we can draw from the findings. But at the very least, there is no clear evidence that the term foreign tribunal(s) as used in ordinary American English invoked the private/non-governmental sense and applied to arbitration.

2. Corpus of Supreme Court Opinions of the United States (COSCO-US)

We next looked to a corpus of U.S. Supreme Court opinions: COSCO-US.105 105.COSCO-US, supra note 99.Show More We limited the search to cases up through 1964. We also only coded the first instance of the term foreign tribunal(s) in a case, even if it appeared more than once. This resulted in forty-three instances, ranging from 1808 to 1958. Two coders independently coded all of these instances.106 106.SeeAppendices, supra note 103, at app. 2.Show More They first coded the following sense categories (the same as coded in COHA, though described here in abbreviated form):

  • government-authorized sense
  • private, non-government-authorized sense
  • any other sense
  • unclear

The coders agreed 88% of the time, a sufficiently high rate of agreement. In the chart below are the results.

Sense Distribution of Foreign Tribunal(s) in Supreme Court Cases, 1789–1964

At least 90% of the time, coders found that the government-authority sense of tribunal was being invoked for the term foreign tribunal. The rest of the time, it was unclear which sense was being used. And not once did a coder find that the U.S. Supreme Court was using the private/non-government-authority sense.

The coders were also asked to record the type of tribunal being referenced. The first coder found that all but one of the instances were referring to a court, the one outlier being a legislature. The second coder concluded that thirty-six of the forty-three instances were referencing a court, six were unclear, and one referenced a surveyor general.107 107.We note that sometimes the term foreign tribunal in referring to courts referred to courts outside of a state’s jurisdiction but not in a foreign country. Thus, to a Maryland state court, a New York state court is sometimes referred to as a foreign tribunal. This usage seemed to occur most often in the context of personal jurisdiction. See, e.g.,Hanson v. Denckla, 357 U.S. 235, 250–51 (1958) (“As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome.”).Show More This evidence indicates that the Supreme Court consistently used foreign tribunal in the narrow, government-authority sense before the statute was enacted to refer to courts, not arbitration.

3. Westlaw Federal Court Opinions

A corpus of federal court decisions does not exist outside of the Founding Era.108 108.See Corpus of U.S. Caselaw, https://lawcorpus.byu.edu/cusc;showCorpusInfo=true/conc​ordances [https://perma.cc/ZVG9-QCLW].Show More But for this type of analysis, where one is coding concordance lines in a corpus, a digital database without the additional tools of a linguistic corpus will still work. So, we searched in Westlaw for “foreign tribunal” to capture the terms foreign tribunal and foreign tribunals. We limited the search under “Filters by Jurisdiction” to “Federal Courts of Appeal” and “Federal District Courts.” We also limited the search to any cases prior to 10/03/1964, the date the new statutory language of issue here was enacted. We then ordered the results by date with the most recent listed first since caselaw closer to 1964 would be more relevant and less likely to be influenced by linguistic drift. We coded the first 100 cases that had a valid hit (some had to be discarded because the term foreign tribunal(s) appeared in a headnote rather than in the body of the opinion). This resulted in cases from 1868 to 1964.109 109.See Appendices, supra note 103, at app. 3.Show More

The coding was for one of four categories:

  • government-authorized sense
  • private, non-government-authorized sense
  • any other sense
  • unclear

The coders coded the material independently of each other, resulting in an agreement rate of 98% for the senses of tribunal, a very high agreement rate. The findings are in the chart below.

Sense Distribution of Foreign Tribunal(s) in Federal Cases

Ranging from 98–100% of the time, the coders determined the government sense was being invoked. Twice the second coder determined that the private sense of tribunal was invoked. In the first instance, the district court judge appeared to be referring to arbitration performed by a court in Spain, which would be more consistent with the government-sense.110 110.See The Ciano, 58 F. Supp. 65, 66–67 (E.D. Pa. 1944) (“I am persuaded to the views set forth in The Edam case, supra, as it seems to me that these provisions are not in a true sense, clauses providing for arbitration, but rather clauses and agreements which attempt to give preference to one court over another, and to attempt to construe then as real agreements for arbitration within the purview of the Arbitration Act would be to confer exclusively jurisdiction as here on a foreign tribunal . . . .”).Show More The second case coded as invoking the private sense does refer to arbitration, but appears to do it in contrast to a foreign tribunal: “Arbitration clauses are found in virtually all the standard forms of charter parties and are particularly favored by shipping men as a means of avoiding litigation in distant countries before foreign tribunals.”111 111.Atl. Fruit Co. v. Red Cross Line, 276 F. 319, 322 (S.D.N.Y. 1921).Show More In other spots in the opinion, the court appears to be contrasting arbitration and litigation, so this use of the term foreign tribunals is likely referring to courts in a foreign country, and thus the government-authority sense.112 112.Id. at 321–22.Show More It appears, then, that the second coder may have been mistaken in finding two instances of the private/non-governmental sense.

Further, 99% of the time the first coder classified the entity being referred to as a foreign tribunal as a court, with the lone other instance being where the entity was a patent office. The second coder deemed 98% of the entities being referred to as a foreign tribunal were courts, with the other 2% referencing arbitration, though these were the same two cases just discussed above, leading us to believe these references were mistaken. Thus, it appears federal courts used the term consistent with how the Supreme Court used the term during that time—in the narrow, government-authority sense and usually referring to courts.

4. U.S. Code

We next looked at the United States Code as found in HeinOnline. We limited the results to those before 1965. We searched in “All Titles” under U.S. Code, limiting our search to the terms foreign tribunal and foreign tribunals that occurred up through 1964. After eliminating duplicates and only sampling the first instance if the term appeared more than once in a particular document, we were left with twelve results.113 113.SeeAppendices, supra note 103, at app. 4.Show More The first coder found all twelve instances to refer to the narrow, government-authority sense. The second coder determined that eleven of the twelve used the narrow, government-authority sense, with the other instance being unclear. Not once could we find an example of the private/non-government sense. As for the type of entity that was referred to as a foreign tribunal, the first coder deemed all twelve instances to be courts, while the second coder found that eight of the twelve were courts, and the other four were unclear. We did not find an example of an arbitration body being referred to as a foreign tribunal. This usage is consistent with how the courts were using the term.

5. U.S. Law Reviews

Finally, we looked at HeinOnline’s Core U.S. Journals database to see how foreign tribunal(s) was used in legal scholarship. Given how many times the terms occurred, we limited the years to 1950–1964, which resulted in 201 hits. We eliminated any result quoting another source, any duplicates, or any articles that were merely titles of statutes with no context. If foreign tribunal(s) appeared multiple times in the document, we only sampled it once—the first time it was listed, unless that first instance was eliminated for the reasons just noted. This resulted in ninety-eight instances of foreign tribunal(s) that we coded.114 114.See Appendices, supra note 103, at app. 5.Show More The coding was for one of four categories:

  • government-authorized sense
  • private, non-government-authorized sense
  • any other sense
  • unclear

Two coders coded the material independently of each other, resulting in an agreement rate of 96% for the senses of tribunal, a very high rate of agreement. In the figure below, we report the percentages for each category coded:

Sense Distribution of Foreign Tribunal(s) in U.S. Law Reviews

The results are very clear and very stark. Almost every single time the terms foreign tribunal or foreign tribunals were used in the decade and a half before 1964 in U.S. legal scholarship, the term took on the government-authorized sense. Arguably only once did it take on the private sense. For that one instance, the coders disagree, with one classifying it as taking on the government sense and the other coding it as being the private sense. The context was the trial in Israel of the infamous Nazi Adolf Eichmann. The sentence in which the term appeared was, “While arrangements were made for the taking of affidavits and for cross-examination before foreign tribunals, the understandable reluctance of former Nazis to appear before the court largely derogated from whatever direct applicability the territorial theory might have had to the Eichmann case.”115 115.Vanni E. Treves, Jurisdictional Aspects of the Eichmann Case, 47 Minn. L. Rev. 557, 562–63 (1962).Show More Given this is in the context of a criminal case, it seems unlikely that the term foreign tribunals would cover private entities in other countries. The coder who coded this instance as involving the private/non-governmental sense was likely mistaken. The coder also classified the type of foreign tribunal here to be a court, which is in tension with it being the private/non-governmental sense and further supports the government sense.116 116.SeeAppendices, supra note 103, at app. 5.Show More Hence, it appears the private sense of tribunal never occurred once in our sample of U.S. law reviews.

What is more, in determining what type of foreign tribunal was being discussed, the coders never found anything other than courts being referenced.117 117.One coder deemed that in every instance a court was being referenced. The other coder determined that in eighty-five of the ninety-eight instances, a court was referenced, and the other thirteen instances the coder could not tell what kind of tribunal was being referred to.Show More This usage in legal scholarship is consistent with how Congress, the Supreme Court, and lower federal courts used the term. Furthermore, this legal usage is consistent with the ordinary usage.

* * *

The data are about as one-sided as we have ever seen in doing corpus linguistic analysis. In 259 instances of the use of the term foreign tribunal or foreign tribunals across ordinary American English, U.S. Supreme Court opinions, federal court opinions, the U.S. Code, and U.S. legal scholarship, we found only three debatable instances of the use of a private/non-government-sense of tribunal—and those three were probably mistakenly coded. We also only found two possible instances where foreign tribunal(s) may have been referencing arbitration, but we also think those were probably mistakes. That is about as linguistically lopsided as it can get. Of course, we are not saying that it is impossible for foreign tribunal(s) to refer to a private, commercial arbitration panel. No doubt one could find an instance if one looked long and hard enough, just as one could probably find a few Republicans who would vote for Bernie Sanders for President. We are just saying that, based on the data we sampled, such usage was uncommon.118 118.It is also possible that our coders may have been mistaken on a few of the results they coded, but that would only change our numbers at the margins. Of course, people may look for themselves at the data in our appendices.Show More

D. Alternative Explanation

1. Real-world Frequency

There is an alternative explanation to frequency data in a corpus. It may not reflect linguistic reality but, assuming the corpus is properly constructed, it could reflect non-linguistic reality. In other words, it could reflect the frequency of the real world as to certain phenomenon.119 119.SeeLawrence M. Solan & Tammy Gales, Corpus Linguistics as a Tool in Legal Interpretation, 2017 BYU L. Rev. 1311, 1315 (2017); Thomas R. Lee & Stephen C. Mouritsen, The Corpus and the Critics, 88 U. Chi. L. Rev. 275, 340 (2021).Show More Thus, if one looks in the corpus at the word car, one is more likely to find instances of Fords or Toyotas than Ferraris because there are just many more Fords and Toyotas in existence than Ferraris. But that does not mean a Ferrari is not a car. And to confirm that, one could look to see if every time a Ferrari showed up in the corpus, it was described as a car. Is the fact that the term foreign tribunal almost never shows up as referring to a private, non-government-authorized tribunal or to arbitration merely a reflection of how much less arbitration occurs as compared to government-authorized tribunals and courts?

One way to get some leverage on this question would be to know how many lawsuits are filed in courts each year versus how many arbitration proceedings are instituted. Of course, one would need to know that historical data for the time periods analyzed here—pre-1965. We do not have that data. But it does not appear that the data we have sampled could be entirely driven by the real-world frequencies of courts and lawsuits being more prevalent than arbitration because that would mean arbitration seldom exists.

2. Arbitration Analysis

To look at this difference between linguistic frequency and real-world frequency from another angle, we decided to sample 100 instances of the word arbitration from COHA, to capture more ordinary language, and COSCO-US, to capture more legal meaning. We recorded the general word used for the entity conducting the arbitration proceeding (panel, body, tribunal, commission, etc.). We did so to see whether when the term arbitration is used it is predominantly referred to as a tribunal or predominantly referred to as something else. If arbitration predominantly referred to something other than a tribunal, then it would be further evidence that it is not something about the frequency of arbitration in the real world that may be driving the frequency data we see in our analysis of foreign tribunal(s)—though we recognize this type of analysis is less direct evidence of the meaning of foreign tribunal(s).120 120.While one could also do collocate analysis here (i.e., seeing which words collocate most frequently with arbitration), we did not because we felt the results would be too muddied by multiple hits from the same document.Show More

3. COHA

We searched for the terms arbitration and arbitrations in COHA that occurred from 1950–1964, finding 192 documents. We only took the first instance if there were multiple instances from the same document.121 121.We were not always sure whether a Letter to the Editor was multiple letters or one, so we left all of those in the data.Show More This reduced our total to 117.122 122.SeeAppendices, supra note 103, at app. 6.Show More The overwhelming majority (74%) of the hits did not reveal the type of entity performing the arbitration. Below are the results we found when we could determine the entity type.123 123.Given this did not involve such a subjective judgment as determining which sense was being used, but rather just whether a word was being used, we only used one coder for this coding.Show More

Type of Entity Performing Arbitration in COHA, 1950–1964

Entity Type Total %124 124.This is the percentage of the total times we were able to identify an entity type, which was thirty.Show More
board(s) 19 63.3%
commission 4 13.3%
committee 1 3.3%
court 3 10.0%
panel 2 6.7%
tribunal 1 3.3%

As is evident, it is possible to refer to the entity that is performing arbitration as a tribunal—in this instance a tribunal to handle disputes over the Suez Canal constituting one member named by Egypt, one by the complaining party, and the third by both together or by the International Court of Justice in The Hague.125 125.SeeSailing on a Pledge, Time, May 6, 1957, at 22.Show More (The coder deemed the source of this arbitration tribunal’s authority to be governmental in nature.)126 126.SeeAppendices, supra note 103, at app. 6.Show More But from 1950–1964 in the representative sample of more “ordinary” American English we examined, it was rare to refer to an entity performing arbitration as a tribunal.

4. COSCO-US

We performed the same analysis in COSCO-US to see what type of entity the U.S. Supreme Court referenced as performing arbitration. We only sampled the first instance if the term arbitration was used more than once in an opinion, treating majority and separate opinions as distinct. We also limited our results from 1789 to 1964. This resulted in 88 instances,127 127.SeeAppendices, supra note 103, at app. 7.Show More though again, an overwhelming majority (73%) did not reveal the entity type performing the arbitration. Below are the results we found when we could determine the entity type.

Type of Entity Performing Arbitration in COSCO-US, 1789–1964

Entity Type Total %128 128.This is the percentage of the total times we were able to identify an entity type, the total of which was twenty-four.Show More
association 1 4.2%
board 12 50.0%
body 1 4.2%
commission 3 12.5%
committee 2 8.3%
tribunal 5 20.8%

Here we see that the Supreme Court refers to the entity that performs arbitration as a tribunal about a fifth of the time, though it is not the most common term, which is board. Of these five instances of tribunal, in one the Court referred to the entity both as a tribunal and as a commission.129 129.SeeFrelinghuysen v. Key, 110 U.S. 63, 73 (1884).Show More In another, it referred to the entity as both a court and a tribunal and seemed to be referring to a court proceeding as arbitration.130 130.SeeProprietors of the Charles River Bridge v. Proprietors of the Warren Bridge, 36 U.S. (11 Pet.) 420, 473, 568 (1837).Show More The other three instances all seem to refer to an international tribunal of arbitration between the United States and Great Britain that was created by treaty and convened in Geneva, Switzerland to handle claims that arose out of the Civil War.131 131.See United States v. Realty Co., 163 U.S. 427, 441 (1896); Williams v. Heard, 140 U.S. 529, 531 (1891); United States v. Weld, 127 U.S. 51, 52 (1888).Show More

In sum, whether in more ordinary American English or in legal American English, at least as used by the U.S. Supreme Court, entities performing arbitration are unlikely to be referred to as a tribunal. This is further evidence that our findings for foreign tribunal are not driven by something other than linguistic usage.

Conclusion

In ZF Automotive US v. Luxshare, the parties have presented the Court with what Justice Frankfurter would call a “contest between probabilities of meaning.”132 132.Frankfurter, supra note 6, at 528.Show More But the methodologies and evidence presented by the parties to resolve that contest—dueling dictionaries and small samples of usage of the individual words of a multi-word term—were inadequate. After sampling 259 usages of the terms foreign tribunal and foreign tribunals across collections of texts using both ordinary and legal American English—including U.S. Supreme Court and federal court opinions, the U.S. Code, and U.S. legal scholarship—the data overwhelmingly show that the term foreign tribunal(s) was used in the sense of an entity using government authority to resolve a dispute, almost always a court. While there may be additional considerations the Court should take into account in resolving the legal question before it, the linguistic question is very clear: the term foreign tribunal seldom referred to a private arbitration body in American English prior to 1965, and the entity that was referred to as conducting arbitration was usually called something other than a tribunal.133 133.Our study was discussed during oral argument. For our response, see Eugene Volokh, Corpus Linguistics in the Supreme Court, Reason: The Volokh Conspiracy (Mar. 24, 2022, 12:28 PM), https://reason.com/volokh/2022/03/24/corpus-linguistics-in-the-supreme-court/ [https://perma.cc/3YWM-QB8Q].Show More

  1. See Oral Argument, ZF Auto. US, Inc. v. Luxshare, Ltd., No. 21-401 (U.S. argued Mar. 23, 2022), https://www.oyez.org/cases/2021/21-401. That case is consolidated with AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, No. 21-518 (U.S. argued Mar. 23, 2022). However, the latter case involves a slightly different question: whether 28 U.S.C. § 1782 applies to investor-state arbitrations pursuant to international treaties. This paper will not address the underlying linguistic questions invoked by AlixPartners.
  2. 28 U.S.C. § 1782(a).
  3. See Luxshare, Ltd. v. ZF Auto. US, Inc., 547 F. Supp. 3d 682, 686–87 (E.D. Mich.), cert. granted 142 S. Ct. 637 (2021).
  4. Carpenter v. United States, 138 S. Ct. 2206, 2238–39 n.4 (2018) (Thomas, J., dissenting) (running a search in the Corpus of Founding-Era American English); Lucia v. S.E.C., 138 S. Ct. 2044, 2056 (2018) (Thomas, J., concurring, joined by Gorsuch, J.) (citing Jennifer Mascott, Who Are “Officers of the United States?” 70 Stan. L. Rev. 443 (2018)); Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1174 (2021) (Alito, J., concurring) (citing Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L. J. 788 (2018)); Bostock v. Clayton County, 140 S. Ct. 1731, 1769 n.22 (2020) (Alito, J., dissenting) (citing James C. Phillips, The Overlooked Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality 3 (unpublished manuscript) (May 11, 2020), https://ssrn.com/abstract=3585940.
  5. Garson Kanin, Conversations with Felix, Reader’s Digest, June 1964, at 116, 117 (replying to counsel who said a question from the bench was just a matter of semantics).
  6. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.
    L.

    Rev. 527, 528 (1947).

  7. See Brief for the Petitioners at 18, ZF Auto. US, Inc. v. Luxshare, Ltd., No. 21-401 (Jan. 24, 2022).
  8. Tribunal, Black’s Law Dictionary (4th ed. 1951); Webster’s Third New International Dictionary of the English Language Unabridged 2441 (1961) [hereinafter Webster’s Third (1961)].
  9. Webster’s Third
    (1961),

    supra note 8, at 2441.

  10. Tribunal, Black’s Law Dictionary (4th ed. 1951).
  11. Webster’s Third
    (1961),

    supra note 8, at 2441; Merriam-Webster’s Dictionary of Law

    503 (1996).

  12. The American Heritage Dictionary of the English Language
    1369 (1969)

    .

  13. Tribunal, Black’s Law Dictionary (4th ed. 1951).
  14. 11 The Oxford English Dictionary 341 (1933).
  15. Ballentine’s Law Dictionary 1300 (1969).
  16. Black’s Law Dictionary
    1814 (11

    th ed. 2019).

  17. Merriam-Webster’s Dictionary of Law
    503 (1996

    ).

  18. The American Heritage Dictionary of the English Language
    1369 (1969)

    .

  19. Brief for the Petitioners, supra note 7, at 19 (quoting Webster’s Third (1961), supra note 8, at 2441).
  20. Funk & Wagnalls New Standard Dictionary of the English Language 1340 (1960).
  21. Brief for the Petitioners, supra note 7, at 19–20.
  22. It is worth noting that no contemporaneous legal dictionary included the broader sense of tribunal. This could indicate a divergence from the ordinary and the legal meanings of the word.
  23. See Brief for the Petitioners, supra note 7, at 19; Brief for the Respondent at 12, ZF Auto. US, Inc. v. Luxshare, Ltd., No. 21-401 (filed Feb. 23, 2022).
  24. See Brief for the Petitioners, supra note 7, at 19.
  25. Id.
  26. See Brief for the Respondent, supra note 23, at 12–14.
  27. Brief for the Petitioners, supra note 7, at 20–21.
  28. Brief for the Petitioners, supra note 7, at 20.
  29. See Brief for the Respondent, supra note 23, at 13.
  30. See Brief for the Petitioners, supra note 7, at 21–25.
  31. See Brief for the Respondent, supra note 23, at 13.
  32. Alan Cruse, Meaning in Language: An Introduction to Semantics and Pragmatics 82 (3d ed. 2011).
  33. Id. at 84.
  34. Alison Wray, Why Are We So Sure We Know What a Word Is?, in The Oxford Handbook of the Word 725, 737 (John R. Taylor ed., 2015).
  35. John McH. Sinclair, Collocation: A Progress Report, in
    2

    Language Topics: Essays in Honour of Michael Halliday 319, 320 (Ross Steele & Terry Threadgold eds., 1987).

  36. See Cruse, supra note 32, at 86–91.
  37. FCC v. AT&T Inc., 562 U.S. 397, 406 (2011).
  38. See 2 McCarthy on Trademarks and Unfair

    Competition § 11:27 (5th ed.) (“Under the anti-dissection rule, a composite mark is tested for its validity and distinctiveness by looking at it as a whole, rather than dissecting it into its component parts.”).

  39. Est. of P.D. Beckwith, Inc., v. Comm’r of Pats., 252 U.S. 538, 545–46 (1920).
  40. TE-TA-MA Truth Found.—Fam. of URI, Inc. v. World Church of the Creator, 297 F.3d 662, 666 (7th Cir. 2002) (emphasis added).
  41. Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 67 (1994).
  42. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1375 (1994).
  43. Id. at 1375–76.
  44. Thomas R. Lee & James C. Phillips, Data-Driven Originalism, 167 U. Pa. L. Rev. 261, 298–300 (2019).
  45. Domestic Violence, Oxford English Dictionary Online (Mar. 2006), https://www.oed.com/view/Entry/56663?redirectedFrom=domestic+violence#eid41827739 [https://perma.cc/A5ZN-RQRV]; Lee & Phillips, supra note 44, at 300.
  46. James Sledd & Wilma R. Ebbitt, Dictionaries and That Dictionary 79 (1962) (quoting the editor-in-chief of Webster’s Third as stating that “the dictionary’s purpose was to report the language, not to prescribe what belonged in it”). Because of this move, Justice Scalia rejected Webster’s Third, preferring Webster’s Second. See James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev
    .

    483, 508–09 (2013) (noting that Scalia’s reliance “on Webster’s Second and American Heritage—identified as belonging to the prescriptive camp—far more than Webster’s Third, the poster child for descriptive dictionaries,” is a “preference” that “is not inadvertent: Scalia has disparaged Webster’s Third in his opinions . . . and in his recent book”). Scalia’s rejection of Webster’s Third is ironic given his purported aim of understanding words in legal texts according to how people at the time would have understood them.

  47. Henri Béjoint, Tradition and Innovation in Modern English Dictionaries 116 (1994).
  48. Sledd & Ebbitt, supra note 46, at 57.
  49. Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227, 242 (1999).
  50. Id.
  51. Granted, to the extent people rely on dictionaries, even a prescriptive definition could somewhat reflect how people understood language, though it is second-best evidence.
  52. See Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915, 1926–29 (2010).
  53. 524 U.S. 125 (1998).
  54. Id. at 128–31.
  55. As has been noted elsewhere, the one exception to this is The Random House Dictionary of the English Language. See Lee & Mouritsen, supra note 4, at 808 n.89 (observing that dictionary’s front matter declares that “a general policy of putting the most frequently used meanings . . . at the beginning of the entry, followed by other senses in diminishing usage, with archaic, and obsolete senses coming last”) (citing Random House Dictionary of the English Language—Unabridged, at viii (2d ed. 1987) [hereinafter Random House]). However, that dictionary was not cited by the parties here (and would only provide half of the relevant term), and as Lee and Mouritsen note, there are “grounds for skepticism of these sorts of claims” given the way dictionaries are constructed, with even Random House conceding that “sense ranking based on frequency holds only ‘generally.’” Id. (quoting Random House, supra, at xxii).
  56. 1 The Oxford English Dictionary xxix (2d ed. 1989) (“[T]hat sense is placed first which was actually the earliest in the language: the others follow in order in which they appear to have arisen.”).
  57. Webster’s Third New International Dictionary of the English Language Unabridged 19a (1971).
  58. See John Mikhail, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523–1806, at 8–10 (July 12, 2017) (unpublished manuscript) (surveying 50 founding-era dictionaries and concluding that because 100% of the entries included at least one element of the broad definition of emolument, and only 8% of the entries included an office or employment-related definition, the word must have been understand at the founding in its broad sense); see also James Cleith Phillips & Sara White, The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English from 1760–1799, 59 S. Tex. L. Rev. 181, 196–97 (2017) (critiquing Mikhail for this analysis).
  59. Lee & Mouritsen, supra note 4, at 809 n.90 (quoting Webster’s Third (1971), supra note 57, at 19a).
  60. Kory Stamper, Word by Word: The Secret Life of Dictionaries 119 (2017); see also The Routledge Handbook of Corpus Linguistics 433–34 (Anne O’Keeffe & Michael McCarthy eds., 2010) (discussing “lumpers” and “splitters”).
  61. Stamper, supra note 60, at 119.
  62. Id.
  63. Sidney I. Landau, Dictionaries: The Art and Craft of Lexicography 35 (1984).
  64. Phillips & White, supra note 58, at 191.
  65. See Lee & Mouritsen, supra note 4, at 810 n.98 (“[T]he methods that [dictionaries] use to sample language use don’t create a reliable sample—aggregating dictionaries isn’t going to accomplish anything if none of them has a reliable sample of language usage.”).
  66. For a broader discussion of this, see generally Lee & Mouritsen, supra note 4 (arguing that corpus linguistics can provide answers to questions regarding statutory interpretation).
  67. Amanda K. Fronk, Big Lang at BYU,
    BYU

    Magazine

    (

    Summer 2017), https://magazine.byu.edu/article/big-lang-at-byu/ [https://perma.cc/23QK-W3GJ].

  68. Hans Lindquist, Corpus Linguistics and the Description of English 52 (2009) (observing that “today all major British dictionary publishers have their own corpora . . . . The editors use concordances to find out the typical meanings and constructions in which each word is used, and try to evaluate which of these are worth mentioning in the dictionary. Many dictionaries also quote authentic examples from corpora, either verbatim or in a slightly doctored form.”).
  69. Tony McEnery & Andrew Hardie, Corpus Linguistics: Method, Theory and Practice 1–2 (2012).
  70. Paul Baker et al., Glossary of Corpus Linguistics 65 (2006).
  71. Henry A. Landsberger, Hawthorne Revisited: Management and the Worker, Its Critics, and Developments in Human Relations in Industry 14–15, 23 (1958).

  72. The Cambridge Handbook of English Corpus Linguistics 1 (Douglas Biber & Randi Reppen eds., 2015).
  73. Douglas Biber, Corpus-Based and Corpus-Driven Analyses of Language Variation and Use, in The Oxford Handbook of Linguistic Analysis 160 (Bernd Heine & Heiko Narrog eds., 2010).
  74. Id. at 159.
  75. McEnery & Hardie, supra note 69, at 66.
  76. Jesse Egbert et al., Designing and Evaluating Language Corpora: A Practical Framework for Corpus Representatives
    (2022).

  77. United States v. Esquivel-Rios, 725 F.3d 1231, 1234 (10th Cir. 2013) (Gorsuch, J., majority opinion) (“Garbage in, garbage out. Everyone knows that much about computers: you give them bad data, they give you bad results.”).
  78. See Douglas Biber & Jesse Egbert, Register Variation Online
    6–7 (2018).

  79. Tony McEnery & Andrew Wilson, Corpus Linguistics: An Introduction 82 (2d ed. 2001).
  80. See James C. Phillips & Jesse Egbert, Advancing Law and Corpus Linguistics: Importing Principles and Practices from Survey and Content-Analysis Methodologies to Improve Corpus Design and Analysis, 2017 BYU L. Rev. 1589, 1608 (2017) (“Law and corpus linguistics can learn from the methodologies employed, and the reasons driving those methodologies, in fields that use content-analysis, such as media studies. Specifically, these methodologies can inform and improve what, how, and who codes search results from corpus analysis.”).
  81. Noscitur a sociis, Black’s Law Dictionary (10th ed. 2014).
  82. John Rupert Firth, A Synopsis of Linguistic Theory, 1930–1955, in Studies in Linguistic Analysis 11 (1957).
  83. See Jesse Egbert, Tove Larsson & Douglas Biber, Doing Linguistics with a Corpus: Methodological Considerations for the Everyday User
    25–29

    (2020).

  84. Lee & Phillips, supra note 44, at 298 tbl.1.
  85. Id.
  86. Daniel Keller & Jesse Egbert, Hypothesis Testing Ordinary Meaning, 86 Brook. L. Rev. 489, 505–32 (2021).
  87. Lee & Phillips, supra note 44, at 304 & tbl.3.
  88. Douglas Biber, Susan Conrad, & Viviana Cortes, If you look at . . .: Lexical Bundles in University Teaching and Textbooks, 25 Applied Linguistics 371 (2004).
  89. See Jesse Egbert, Brent Burch, & Douglas Biber, Lexical Dispersion and Corpus Design, 25 Int’l J. Corpus Linguistics 89–90 (2020); Stefan Th. Gries, Dispersions and Adjusted Frequencies in Corpora, 13 Int’l J. Corpus Linguistics 403 (2008).
  90. Jesse Egbert & Douglas Biber, Incorporating Text Dispersion into Keyword Analyses, 14 Corpora 77–78 (2019); Mike Scott, PC Analysis of Key Words—And Key Key Words, 25 System 233 (1997).
  91. Stefan Th. Gries, & Anatol Stefanowitsch, Extending Collostructional Analysis: A Corpus-Based Perspective on ‘Alternations’, 9 Int’l J
    .

    Corpus Linguistics

    97 (2004).

  92. Douglas Biber & Edward Finegan, An Initial Typology of English Text Types, in Corpus Linguistics II
    :

    New Studies in the Analysis and Exploitation of Computer Corpora

    19 (

    Jan Aarts and Willem Meijs eds., 1986).

  93. Douglas Biber, Variation Across Speech and Writing 24 (1988).
  94. Corpus of Historical American English, (2021) [hereinafter COHA] https://www.english-corpora.org/coha/ [https://perma.cc/K3VN-JFJD].
  95. Id.
  96. Id.
  97. Id.
  98. Id.
  99. See Corpus of Supreme Court Opinions of the United States (hereinafter COSCO-US), https://lawcorpus.byu.edu/coscous/concordances [https://perma.cc/Y9L4-8EVG].
  100. See generally James C. Phillips & Jesse Egbert, Advancing Law and Corpus Linguistics: Importing Principles and Practices from Survey and Content-Analysis Methodologies to Improve Corpus Design and Analysis, 2017 BYU L. Rev. 1589, 1613–14 (2017).
  101. COHA, supra note 94. To calculate this number, we subtracted the number of words from the 1970s–2010s, as well as half of the words for the 1960s, a combined total of 176,666,079 words, from the total words in COHA (475,031,831), resulting in a total of 298,365,752 words.
  102. Searching foreign tribunal in COHA yields both singular and plural results.
  103. And one of the hits from COHA came from a legal source: Kent’s Commentaries on American Law. See James C. Phillips & Jesse Egbert, Appendices to a Corpus Linguistic Analysis of “Foreign Tribunal,” at app. 1 (Mar. 20, 2022) [hereinafter Appendices], https://pa​pers.ssrn.com/sol3/papers.cfm?abstract_id=4052959 [https://perma.cc/KYR3-3CS2]; James Kent, Commentaries on American Law, 24 N. Am. Rev. 345, 358 (1827).
  104. See Appendices, supra note 103, at app. 1.
  105. COSCO-US, supra note 99.
  106. See Appendices, supra note 103, at app. 2.
  107. We note that sometimes the term foreign tribunal in referring to courts referred to courts outside of a state’s jurisdiction but not in a foreign country. Thus, to a Maryland state court, a New York state court is sometimes referred to as a foreign tribunal. This usage seemed to occur most often in the context of personal jurisdiction. See, e.g., Hanson v. Denckla, 357 U.S. 235, 250–51 (1958) (“As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome.”).
  108. See Corpus of U.S. Caselaw, https://lawcorpus.byu.edu/cusc;showCorpusInfo=true/conc​ordances [https://perma.cc/ZVG9-QCLW].
  109. See Appendices, supra note 103, at app. 3.
  110. See The Ciano, 58 F. Supp. 65, 66–67 (E.D. Pa. 1944) (“I am persuaded to the views set forth in The Edam case, supra, as it seems to me that these provisions are not in a true sense, clauses providing for arbitration, but rather clauses and agreements which attempt to give preference to one court over another, and to attempt to construe then as real agreements for arbitration within the purview of the Arbitration Act would be to confer exclusively jurisdiction as here on a foreign tribunal . . . .”).
  111. Atl. Fruit Co. v. Red Cross Line, 276 F. 319, 322 (S.D.N.Y. 1921).
  112. Id. at 321–22.
  113. See Appendices, supra note 103, at app. 4.
  114. See Appendices, supra note 103, at app. 5.
  115. Vanni E. Treves, Jurisdictional Aspects of the Eichmann Case, 47 Minn. L. Rev. 557, 562–63 (1962).
  116. See Appendices, supra note 103, at app. 5.
  117. One coder deemed that in every instance a court was being referenced. The other coder determined that in eighty-five of the ninety-eight instances, a court was referenced, and the other thirteen instances the coder could not tell what kind of tribunal was being referred to.
  118. It is also possible that our coders may have been mistaken on a few of the results they coded, but that would only change our numbers at the margins. Of course, people may look for themselves at the data in our appendices.
  119. See Lawrence M. Solan & Tammy Gales, Corpus Linguistics as a Tool in Legal Interpretation, 2017 BYU L. Rev. 1311, 1315 (2017); Thomas R. Lee & Stephen C. Mouritsen, The Corpus and the Critics, 88 U. Chi. L. Rev. 275, 340 (2021).
  120. While one could also do collocate analysis here (i.e., seeing which words collocate most frequently with arbitration), we did not because we felt the results would be too muddied by multiple hits from the same document.
  121. We were not always sure whether a Letter to the Editor was multiple letters or one, so we left all of those in the data.
  122. See Appendices, supra note 103, at app. 6.
  123. Given this did not involve such a subjective judgment as determining which sense was being used, but rather just whether a word was being used, we only used one coder for this coding.
  124. This is the percentage of the total times we were able to identify an entity type, which was thirty.
  125. See Sailing on a Pledge, Time, May 6, 1957, at 22.
  126. See Appendices, supra note 103, at app. 6.
  127. See Appendices, supra note 103, at app. 7.
  128. This is the percentage of the total times we were able to identify an entity type, the total of which was twenty-four.
  129. See Frelinghuysen v. Key, 110 U.S. 63, 73 (1884).
  130. See Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge, 36 U.S. (11 Pet.) 420, 473, 568 (1837).
  131. See United States v. Realty Co., 163 U.S. 427, 441 (1896); Williams v. Heard, 140 U.S. 529, 531 (1891); United States v. Weld, 127 U.S. 51, 52 (1888).
  132. Frankfurter, supra note 6, at 528.
  133. Our study was discussed during oral argument. For our response, see Eugene Volokh, Corpus Linguistics in the Supreme Court, Reason: The Volokh Conspiracy (Mar. 24, 2022, 12:28 PM), https://reason.com/volokh/2022/03/24/corpus-linguistics-in-the-supreme-court/ [https://perma.cc/3YWM-QB8Q].

Antideference: COVID, Climate, and the Rise of the Major Questions Canon

Skepticism on the Supreme Court toward administrative authority has evolved into open hostility over the course of the past year in two cases related to the COVID-19 pandemic. The legal vehicle was not, as widely expected, rejection of Chevron’s deference rule or a reanimation of the nondelegation doctrine. Instead, it was formal elevation of the “major questions doctrine” into a substantive canon of construction. This new canon significantly curtails not only executive power (via agencies) but Congress’s legislative authority—and, ultimately, democratic control of policy. It adds a new veto point to the American political system, licensing judges to reject any delegation of power they deem economically or politically significant with little regard for statutory text. The only remedy is a super-clear statement in legislation, similarly subject to judicial discretion. For such major cases, the Court has shifted from deference to antideference, actively antagonistic to delegated power. By its architects’ own admission, this canon is simply the nondelegation doctrine in disguise. It threatens to cripple the administrative state, particularly in emergencies and in areas of evolving science, such as pandemics and climate change.

Introduction

Over roughly the last two decades, it has become increasingly clear that a majority on the Supreme Court aims to reduce the power and reach of the administrative state in the American constitutional order.1.SeeGillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 2, 3–6 (2017); see also Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1969–71 (2017) (noting several Justices have “constitutionally inspired anxieties about the modern administrative state”).Show More Most observers of this trend have focused on two potential changes in doctrine: an end to the practice of deferring to agency interpretations of ambiguous statutes (i.e., Chevron deference)2.See, e.g., Nathan Richardson, Deference Is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 445 (2021) [hereinafter Richardson, Deference is Dead]; seealso Valerie C. Brannon & Jared P Cole, Cong. Rsch. Serv., LSB10204, Deference and its Discontents: Will the Supreme Court Overrule Chevron? (2018) (discussing predictions that Chevron will be overturned).Show More and a revival of the principle that some Congressional delegations of power to agencies are so broad as to violate the Constitution (i.e., nondelegation).3.See,e.g., Heinzerling, supranote 1, at 1970.Show More These two judicial forbearance doctrines have remained stable pillars of the administrative state for decades. A shift in either would reallocate authority over substantial parts of American law and American life from agencies, the President, and Congress to the Court. Despite strong rumblings,4.See Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting); seealsoSAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2017) (“[W]hether Chevron should remain is a question we may leave for another day.”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring) (calling for Chevron to be reconsidered).Show More neither of these doctrinal changes has happened—at least not yet and not officially. Chevron remains good law (albeit severely weakened at the Supreme Court level),5.See Richardson, Deference is Dead, supra note 2, at 443.Show More and the nondelegation doctrine’s slumber was narrowly preserved in 2019’s Gundy v. United States.6.139 S. Ct. 2116, 2119–20 (2019).Show More

But in two recent cases striking down agency actions related to the COVID-19 pandemic—a CDC eviction moratorium7.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2486–90 (2021).Show More and an OSHA vaccine-or-test mandate for large employers8.Nat’l Fed’n of Indep. Bus. v. OSHA (The Vaccine Case), 142 S. Ct. 661, 662, 665–67 (2022).Show More—the Court made an equally significant but almost completely unheralded anti-administrative doctrinal change. In so doing, it has arrogated to itself broad discretionary power to reject delegations of authority to administrative agencies without openly altering any doctrinal principle. Instead, the anti-administrativists have stolen a march via expansion of the “major questions doctrine” into a substantive canon of statutory construction.

The traditional major questions doctrine emerged in the 1990s, imposing different rules for statutory interpretation in “major” cases, i.e., those that rise above some level of political or economic significance. 9.See,e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000).But see infra Section III.A (discussing possible roots of the doctrine in Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Instit. (The Benzene Case), 448 U.S. 607, 645 (1980)).Show More Until recently, it operated to deny deference to certain agency interpretations of law—that is, courts would not defer to interpretations of ambiguous statutory terms in “major” cases to which they might have deferred in lower-stakes cases. Chevron and its early progeny had shifted interpretive authority from courts to agencies—it was a “counter-Marbury for the administrative state,” as Cass Sunstein famously called it.10 10.See Cass R. Sunstein, Law and Administration after Chevron, 90 Colum. L. Rev. 2071, 2075 (1990).Show More The major questions doctrine, among other doctrines and practices reducing the scope of Chevron,11 11.See Richardson, Deference is Dead, supranote 2, at 453–59 (detailing external erosion of Chevron’s domain by creation of a series of exclusion rules).Show More clawed some of that power back.12 12.Id. at 470–72.Show More

The doctrine has been widely criticized for its indeterminacy, counter-democratic allocation of power from agencies to judges, and other alleged failings,13 13.See Nathan Richardson, Keeping Big Cases from Making Bad Law: The Resurgent “Major Questions” Doctrine, 49 Conn. L. Rev. 355, 390–409 (2016) [hereinafter Richardson, Keeping Big Cases] (cataloging extensive scholarly critiques of the major questions doctrine).Show More though I have previously argued that it might, paradoxically, have benefited agency authority insofar as it protected Chevron in “normal” cases.14 14.Id. at 409–26.Show More Whatever its effects, the doctrine’s influence was limited, largely because it appeared only rarely.

But in recent cases—beginning with Utility Air Regulatory Group v. EPA15 15.Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).Show More in 2014 and maturing in the COVID cases16 16.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021); The Vaccine Case,142 S. Ct. 661 (2022).Show More—the major questions doctrine escaped the confines of Chevron to operate as an independent, substantive canon of statutory construction. The Court now requires Congress to “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”17 17.The Vaccine Case, 142 S. Ct. at 665 (citing Alabama Realtors, 141 S. Ct. at 2489).Show More Cass Sunstein and Lisa Heinzerling have previously noted this nascent doctrinal shift,18 18.See Cass Sunstein, There Are Two Major Questions Doctrines, 73 Admin. L. Rev. 475, 475–77 (2021) [hereinafter Sunstein, Two Major Questions]; see also Heinzerling, supranote 1, at 1944–48 (describing Utility Airas establishing a new “power canon” clear statement rule).Show More but the Court did not openly adopt it until the recent COVID cases. In both cases, the Court rejected agency authority on the grounds that Congress had failed to speak sufficiently clearly.19 19.See Alabama Realtors,141 S. Ct. at 2488–89; The Vaccine Case,141 S. Ct. at 665.Show More In neither case did it even cite Chevron.

This shift from major questions doctrine to canon is subtle but powerful. More than a further pullback from Chevron deference, it is a reversal of it. Chevron gives agencies some range of interpretive authority when statutes are ambiguous. The major questions doctrine discards that deference, allowing courts to engage directly with statutes (and, therefore, with Congress). But the major questions canon is actively hostile to agency assertions of authority, allowing courts to reject agency interpretations in “major” cases of statutes that are insufficiently unambiguous. The major questions canon is thus a super-Marbury for the administrative state. Where the earlier major questions doctrine shifted a reviewing court from a deference regime to one of rough neutrality, the new canon further shifts from neutrality to antideference.

Nor did the Court announce or acknowledge the shift from doctrine to canon. Instead, the Justices act as if the canon is a long-settled part of the Court’s administrative law doctrine.20 20.See,e.g., Alabama Realtors,141 S. Ct. at 2489 (citing Utility Air, 573 U.S. at 324) (failing to acknowledge any doctrinal shift to canon); seealso The Vaccine Case,141 S. Ct. at 668–70 (Gorsuch, J., concurring) (rooting the major questions canon in the Benzene Case and other nondelegation cases dating back to 1825).Show More In one sense this cannot be true—severance of the major questions inquiry from Chevron is a recent innovation. But it is right in another sense: the major questions canon is in fact simply the nondelegation doctrine masquerading as a principle of statutory interpretation. The traditional major questions doctrine was a nondelegation avoidance doctrine;21 21.SeeJohn F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223, 223 (2001).Show More now elevated to substantive canon, that separation has collapsed.

The major questions canon is therefore not (or at least not just) an assertion of judicial power over a modern administrative state. Instead, it asserts power over Congress—and, by extension, over popular rule and representative government. The normal legislative process is no longer adequate for “major” delegations. The new canon is a purely judicial creation, with indistinct and arbitrary boundaries that appear to shift to match the policy preferences of the judges applying it. And it is powerful, trumping statutory text and the Court’s standards for granting preliminary relief.

It is also a new, extra-constitutional veto point in an American political system already crippled by a surfeit of them.22 22.See, e.g., Sanford Levinson, The United States and Political Dysfunction: “What Are Elections For?”,61 Drake L. Rev. 959, 961 (2013).Show More Whether that system can effectively respond to short-term emergencies like pandemics or longer-term challenges like climate change hangs in the balance. In 2022 the Court will again consider the EPA’s authority to regulate greenhouse gas emissions in West Virginia v. EPA,23 23.See Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021).Show More a case I and others have highlighted as a potential vehicle for further erosion of Chevron or reinvigoration of the non-delegation doctrine. 24 24.Nathan Richardson, The Supreme Court’s New Threat to Climate Policy, Resources (Nov. 5, 2021), https://www.resources.org/common-resources/the-supreme-courts-new-threat-to-climate-policy/ [https://perma.cc/96RQ-TQ2A].Show More Armed with the major questions canon, neither is necessary for the Court to impose its veto on the administrative state.

I. Doctrine

A. Birth

The major questions doctrine emerged relatively recently, in a pair of late-1990s Supreme Court cases challenging agency regulations: MCI Telecommunications Corp. v. AT&T Co.25 25.512 U.S. 218, 231 (1994).Show More and FDA v. Brown & Williamson Tobacco Corp.26 26.FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (argued in 1999).Show More By the time these cases were decided, the Court had long since established a doctrine of deference to agency interpretations of law, first as a standard,27 27.See NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 130–31 (1944); seealso Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (deferring to the “experienced and informed judgment” of the agency).Show More then as a rule in Chevron v. NRDC.28 28.Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).Show More Chevron’s domain was never universal, however,29 29.See Richardson, Deference Is Dead, supra note 2, at 453–59 (detailing external erosion of Chevron’s domain by creation of a series of exclusion rules).Show More and over time, the Court reduced its scope.30 30.Id; see also Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2032 (2020) (calling Chevron a temporary simplification of the preexisting deference regime).Show More What came to be known as the major questions doctrine was one such carve-out.

Deference’s foundation is implied delegation—the assumption31 31.Or if one is less charitable, the legal fiction. SeeLisa Schultz Bressman, Reclaiming the Legal Fiction of Congressional Delegation, 97 Va. L. Rev. 2009, 2009 (2011).Show More that Congress intends for agencies to fill statutory gaps.32 32.See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 373 (1986); seealso FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (describing Chevron as reflecting the belief that statutory gaps reflect implied delegation to the agency).Show More Just two years after Chevron, then-Judge Stephen Breyer suggested that this assumption should be discarded in “major” cases.33 33.Breyer, supra note 32, at 390.Show More A decade later, the Court would adopt this principle (though Breyer himself would not).34 34.Brown & Williamson,529 U.S. at 123; seealso id.at 161, 190–92 (Breyer, J., dissenting).Show More

In MCI, Justice Scalia rejected a change in telecommunications rate policy by the FCC, denying deference to the agency in part because the regulation was, he claimed, a “radical or fundamental change” to the statutory scheme.35 35.MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994).Show More The case augured a doctrinal change but did not explicitly announce one; it can be interpreted as a straightforward Chevron case, with the agency’s interpretation simply deemed “unreasonable.”36 36.See Richardson, Keeping Big Cases, supranote 13, at 364–65.Show More

Six years later, in Brown & Williamson, the Court considered a challenge to the agency’s attempt to regulate tobacco products as “drugs.”37 37.Brown & Williamson,529 U.S.at 125.Show More In rejecting the agency’s statutory interpretation, Justice O’Connor characterized the case as “extraordinary” because “the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy.”38 38.Id. at 159–60.Show More Subsequent legislation was also interpreted by the Court to imply that Congress did not intend to grant the FDA authority over tobacco.39 39.Id. at 157–58.Show More Justice O’Connor’s opinion included the first clear articulation of the major questions doctrine:

Deference under Chevron to an agency’s construction of a statute that it administers is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.40 40.Id. at 159.Show More

After Brown & Williamson, if a case was sufficiently important to qualify as “extraordinary,” courts would have sole authority to interpret the statute in question, without deference to any agency view.41 41.Brown & Williamson hints at going further, foreshadowing the future major questions canon. The Court was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Brown & Williamson, 529 U.S.at 160. This line is itself cryptic, but it can be read to suggest a clear statement rule. The better reading, in my view, is that it is merely an admonition to read statutory language with a view to context and purpose.Show More

B. Rebirth

After Brown & Williamson formalized the major questions doctrine, the Court seemed to forget about it—it was notably absent from 2007’s Massachusetts v. EPA,42 42.549 U.S. 497, 528 (2007).Show More leading one scholar to declare it dead.43 43.SeeAbigail R. Moncrieff, Reincarnating the “Major Questions” Exception to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got it Wrong), 60 Admin. L. Rev. 593, 594 (2008).Show More But in King v. Burwell in 2015,44 44.576 U.S. 473 (2015).Show More the Court confirmed that it was alive and well. In King, the Court considered whether the Affordable Care Act could be interpreted to allow tax credits to be granted to customers of federal insurance exchanges, despite language in the statute that apparently limited such credits to users of state exchanges.45 45.Id. at 473–74.Show More The IRS said it could.46 46.Id.Show More In a majority opinion by Chief Justice Roberts, the Court declined to defer to the agency reading of the statute for multiple reasons, among them the major questions doctrine:

[Chevron] is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. . . . In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. . . . Whether . . . credits are available on Federal Exchanges is . . . a question of deep “economic and political significance” . . . [H]ad Congress wished to assign that question to an agency, it surely would have done so expressly.47 47.Id. at 485–86 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). Justice Scalia’s dissent adopts a different interpretation of the statute but does not contest Chief Justice Roberts’s understanding of the major questions doctrine. Id. at 499–517 (Scalia, J., dissenting).Show More

Having denied deference to the agency’s reading, the Court proceeded to its own statutory analysis, but it ultimately confirmed the agency’s reading, based on traditional textual analysis.48 48.Id. at 486–99.Show More This makes King a perfect illustration of the traditional major questions doctrine: it operates within Chevron or, perhaps more accurately, as a threshold question before reaching Chevron—a Chevron Step Zero.49 49.See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191 (2006).Show More But whether a case is “major” has no effect on the Court’s textual analysis.

II. Canonization

The traditional, Chevron-focused major questions doctrine would not hold for long, however—five years later, the COVID cases would elevate it to a substantive canon. But this change was less sudden than it appears. Its roots lie in a separate line of cases dating back to the 2000s—or perhaps the 1980s. By the time King was decided, the Court had already begun moving toward a major questions canon, albeit under a different name.

A. Roots

Twice in complex non-delegation cases, the Court has come close to adopting a major questions canon, but it would not stick. In Industrial Union Department, AFL-CIO v. American Petroleum Institute (The Benzene Case) in 1980, Justice Stevens’ plurality opinion includes a passage that looks much like the major questions canon: “In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result from the Government’s view . . . .”50 50.The Benzene Case, 448 U.S. 607, 645 (1980).Show More Sunstein identifies this as the canon’s doctrinal root.51 51.Sunstein, Two Major Questions,supranote 18,at 484–85.Show More But if so, the Court itself did not acknowledge it: Neither MCI, Brown & Williamson, nor King cite the Benzene Case.

Two decades later, in Whitman v. American Trucking Ass’ns, Justice Scalia’s majority opinion adopted a similar principle: “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”52 52.531 U.S. 457, 468 (2001).Show More Scalia cited MCI and Brown & Williamson, 53 53.Id.Show More but this is a significant and unacknowledged doctrinal shift to a clear statement rule, perhaps identical to the major questions canon. But Whitman, too, was not followed by progeny adopting a major questions canon. The Court would occasionally cite the “elephants in mouseholes” principle, but only once in a recognizable major questions case involving a delegation to an agency.54 54.See Gonzales v. Oregon, 546 U.S. 243, 267 (2006).Show More

In both Whitman and the Benzene Case, the Court also considered disinterring the nondelegation doctrine, only to ultimately decline.55 55.See Whitman, 531 U.S. at 472–74; The Benzene Case, 448 U.S. at 646.Show More But the threat of doing so, and the clear statement rules the cases appear to articulate, were threats to agency authority (and to Congress’ power to delegate)—Chekov’s guns placed silently on the wall.

We are therefore left with something of a puzzle. Whitman and the Benzene Case both offer statements that look like the major questions canon and suggest a connection to nondelegation, but in neither case does the Court acknowledge any shift in doctrine, nor is either case followed by progeny that apply such a canon—at least not until recently. Whitman and the Benzene Case are therefore (at most) important precursors.

B. Utility Air

For Sunstein and Heinzerling, canonization came in Utility Air Regulatory Group v. EPA in 2014. 56 56.Sunstein, Two Major Questions,supranote 18,at 483–84, Heinzerling,supranote 1, at 1944–54.Show More Justice Scalia’s majority opinion applies Chevron’s two-step process, identifying statutory ambiguity but refusing to defer because the agency’s interpretation was deemed unreasonable—making Utility Air an unusual Chevron step two case, but not doctrinally innovative, at least superficially.57 57.See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014).Show More But Scalia’s reasoning was remarkably aggressive:

When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.”58 58.Id. at 324 (first citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. at 159; then citing MCI, 512 U.S. at 231; and then citing The Benzene Case, 448 U.S. at 645–46).Show More

If the roughly contemporaneous King v. Burwell is a clear articulation of the traditional major questions doctrine, this looks like an equally clear articulation of the major questions canon. Scalia cites both the Brown & Williamson and the Benzene Case, pulling two of the canon’s historical threads together.

But (contra Sunstein and Heinzerling), in my view the canon had not yet fully arrived. Although the passage above appears to adopt a major questions canon when read in isolation, Utility Air still operates within Chevron’s deference framework.59 59.MCI is a close parallel, in that both it and Utility Airare best understood as Chevron step two cases. See MCI, 512 U.S. at 229; Utility Air, 573 U.S. at 321.Show More In practice this distinction makes little or no difference to case outcomes: it is inconceivable that the Court would conclude an agency interpretation is unreasonable on major questions grounds yet still accept it. But the major questions doctrine in Utility Air is not enough to resolve the statutory interpretation inquiry. Justice Scalia’s opinion engages in substantial further textual analysis before rejecting the agency’s reading.60 60.SeeUtility Air,573 U.S. at 316–20 (comparing the Clean Air Act provision at issue with similar provisions in the statute).Show More The fact that Utility Air was followed a year later by King confirms that it did not shift—or was not yet understood to have shifted—the Court from major questions doctrine to canon.

But even if Utility Air did not canonize major questions, it opened the door.61 61.See, e.g., Jody Freeman, Why I Worry About UARG, 39 Harv. Env’t L. Rev 9, 16–17 (2015); see also Richardson, The Rise and Fall of Clean Air Act Climate Policy,10 Mich. J. Env’t & Admin. L. 69, 107 (2020) (noting the “substantial legal uncertainty” created by the Court’s move in Utility Air).Show More Jody Freeman called the passage above a “rhetorical flourish[]” and a “‘red meat’ reference[] to potential government overreach that some Justices toss to their conservative audiences.”62 62.Freeman, supranote 61, at 10.Show More But there was more to it than rhetoric, she suggested, calling the case “full of troubling hints and clues as to the Court’s skeptical mood” and armed with “legal improvised explosive devices”63 63.Id. at 21.Show More Utility Air was Scalia’s second such doctrinal IED—just as in Whitman, he advanced a new legal principle, profoundly dangerous to agency authority, in a case that gave the agency its preferred substantive result.

The Court did not immediately go through the door it had opened in Utility Air. The case was followed by an increase in the rate at which the Court cited the “elephants in mouseholes” principle,64 64.After being cited in a majority opinion just twice between 2001 and 2016 (see notes 52, 54), the Court cited “elephants in mouseholes” seven times between 2017 and 2021. SeePuerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 127 (2016), Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018), Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 984 (2017), Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1903 (2019), Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1354 (2020), Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1753 (2020), AMG Cap. Mgmt., LLC v. FTC, 141 S. Ct. 1341 (2021). None of these are readily recognizable as major questions cases involving disputed statutory delegations to an agency, however.Show More but not by cases adopting the major questions canon. Utility Air was ahead of its time. But by 2021, the Court’s personnel had changed: Justices Scalia, Kennedy, and Ginsburg had been replaced with Gorsuch, Kavanaugh, and Barrett. Of these, Gorsuch would become the major questions canon’s leading advocate.

And Utility Air did inspire Kavanaugh to adopt the canon—in US Telecom Ass’n v. FCC (2017), then Judge Kavanaugh invoked what he called a “major rules” doctrine.65 65.SeeU.S. Telecom Ass’n v. FCC, 855 F.3d 381, 418–35 (2017) (en banc) (Kavanaugh, J., dissenting).Show More Because the net neutrality rule at issue was, in Judge Kavanaugh’s view, “one of the most consequential regulations ever issued,” it required “clear congressional authorization.”66 66.Id. at 417, 419–22. For this requirement, he cited the Benzene Case, 448 U.S. 607, 645–46(1980); MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000); Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (“elephants in mouseholes” major questions case); and Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).Show More What Kavanaugh called the “major rules” doctrine is nothing more than the major questions canon. Once elevated to the Supreme Court, Kavanaugh confirmed his view that major questions was a canon, “closely related” to nondelegation.67 67.SeePaul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).Show More

C. COVID

The Court’s formal adoption of the major questions canon came in two recent decisions staying emergency agency actions arising from the COVID-19 pandemic.

1. Evictions

In Alabama Ass’n of Realtors v. Department of Health and Human Services in 2021, the Court considered a nationwide moratorium on evictions issued by the Centers for Disease Control (CDC). 68 68.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2485 (2021).Show More In deciding six-to-three that a stay was warranted, the Court applied the standard framework, which requires the stay applicant to make “a strong showing that he is likely to succeed on the merits” and show that equitable factors such as irreparable injury and the public interest weigh in favor of a stay.69 69.Id. at 2487 (citing Nken v. Holder, 556 U.S. 418 (2009)).Show More The Court’s consideration of these equitable factors was brief, almost entirely subsumed into the merits analysis.70 70.Id. at 2490.Show More

The merits, in the Court’s view, were resolved by application of two substantive canons: the longstanding federalism canon71 71.Id. at 2489.Show More and the new major questions canon. The latter was triggered because, in the Court’s view, the moratorium asserted agency powers of “vast ‘economic and political significance’” and “a breathtaking amount of authority.”72 72.Id. (first citing Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014); and then citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).Show More

Having concluded this was a major case, the Court considered whether the statute in question, the Public Health Service Act, was sufficiently clear to authorize the CDC moratorium. In relevant part, it authorized the CDC to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases. . . .”73 73.See Public Health Service Act §361(a), 42 U.S.C. § 264(a). The statute then gives examples of actions the agency might take under this authority, including “inspection, fumigation, disinfection . . . and other measures, as in his judgment may be necessary.”Show More In the Court’s view, this statutory language was far from adequate, partly because the relatively pedestrian examples of regulatory actions given in the statute make it “a stretch” to read the superficially broad language to authorize halting evictions. 74 74.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488 (2021).Show More

Reasonable minds might differ over the degree to which the examples given in the statute limit the scope of agency authority in a pandemic or the degree to which an eviction moratorium is outside that scope.75 75.Id. at 2491–92 (Breyer, J., dissenting) (Justice Breyer would reverse the majority’s presumption: “If Congress had meant to exclude these types of measures from its broad grant of authority, it likely would have said so.”).Show More But the majority’s trump card was the major questions canon. Ambiguity is not enough, says the canon. This is not a Chevron case. Instead, Congress must speak clearly to delegate significant authority. And in the Court’s view, the statute lacked the required clarity or robustness: it was “a wafer-thin reed on which to rest such sweeping power.”76 76.Id. at 2489.Show More

The opinion gives no guidance on what more Congress needed to have done in the statute, beyond warning that the agency’s reading would leave “no limit” on its powers (suggesting a nondelegation problem). 77 77.Id.Show More The opinion does suggest two additional factors were significant. One is the absence of past regulations based on the same statutory provision that (in the Court’s view) “beg[i]n to approach the size or scope of the eviction moratorium.”78 78.Id.Show More This suggests a “use it or lose it” element of delegated authority—if an agency receives a broad grant but construes it narrowly, or lacks a reason to use it fully, those powers may be lost.

The Court also points to lack of post-enactment legislation as evidence of statutory intent and, by extension, requisite clarity. Because Congress had imposed a temporary eviction moratorium by statute, then allowed it to lapse, Congress (the Court reasoned) implicitly denied the CDC power to re-impose it under preexisting law.79 79.Id. at 2490.Show More This echoes and extends Brown & Williamson—in both cases, post-enactment Congressional behavior informs interpretation of the relevant statute, but Alabama Realtors applies that principle to post-enactment inaction.

The complete absence of Chevron from the Alabama Realtors opinion confirms that it is a major questions canon case. Whether to defer to the agency’s reading is never in question—the Court simply goes about interpreting the statute de novo, with analysis dominated by the major questions canon’s clear statement rule.

2. Vaccines

A few months later, the Court removed any remaining doubt that the major questions doctrine had been elevated to a substantive canon. In National Federation of Independent Business v. OSHA (The Vaccine Case) in early 2022, the Court considered an OSHA emergency rule requiring large employers to either “ensure their workforces are fully vaccinated or show a negative test at least once a week.”80 80.The Vaccine Case,142 S. Ct. 661, 663 (2022).Show More Challengers alleged the rule exceeded OSHA’s statutory authority to issue workplace standards “reasonably necessary or appropriate to provide safe or healthful employment . . . .”81 81.Occupational Safety and Health Act § 3(8), 29 U.S.C. § 652(8).Show More and requested a stay.82 82.The Vaccine Case,141 S. Ct. at 662–63.Show More

In a per curiam opinion similar to Alabama Realtors, the same 6-3 majority of the Court granted the requested stay,83 83.Id.Show More relying exclusively on the major questions canon. Like Alabama Realtors, the Vaccine Case opinion does not cite Chevron. Instead, it applies the new two-step major questions canon analysis, considering first whether the regulation is sufficiently significant: “This is no ‘everyday exercise of federal power.’ It is instead a significant encroachment into the lives—and health—of a vast number of employees. ‘We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.’”84 84.Id.at 665 (citing Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021)).Show More The regulation having qualified as a major question, the Court then considered whether the statute “plainly authorized” it. The Court concluded it did not, with a single paragraph of cursory statutory analysis:

The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U.S.C. §655(b) (directing the Secretary to set “occupational safety and health standards”. . . . Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.85 85.Id.Show More

The Court further distinguished COVID from “work related dangers” within OSHA’s purview, instead likening it to “day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases” and concluding the vaccine-or-test requirement was “strikingly unlike” past agency practice.86 86.Id.Show More This analysis is profoundly unpersuasive; OSHA has long regulated general risks that appear in the workplace—one need look no further than the Benzene Case itself to find an OSHA regulation of air pollution.87 87.See The Benzene Case, 448 U.S. 607, 613 (1980).Show More

The opinion is strikingly similar to Alabama Realtors. It suggests that past agency practice with old statutes informs current bounds of authority, and relies on implied repeal by congressional inaction, this time extending to a non-binding Senate vote disapproving of the regulation.88 88.The Vaccine Case, 142 S. Ct. 661, 666 (2022).Show More Where the Court had considered equitable factors only briefly in Alabama Realtors, it simply refused to do that analysis at all in the Vaccine Case, declaring “[i]t is not our role to weigh such tradeoffs.”89 89.Id.Show More Resolution of the case therefore collapsed entirely into the merits analysis.90 90.SeeWill Baude, Balancing the Equities in the Vaccine Mandate Case, Reason: The Volokh Conspiracy (Jan. 14, 2022), https://reason.com/volokh/2022/01/14/balancing-the-equities-in-the-vaccine-mandate-case/ [https://perma.cc/Y7YH-3V7N].Show More

Justice Gorsuch’s concurrence, joined by Justices Alito and Thomas, discusses the canon in more detail. For Gorsuch, the lack of statutory clarity is driven not by text, but by its age (50 years) and by Congressional inaction.91 91.The Vaccine Case, 142 S. Ct. at 668 (Gorsuch, J., concurring). Justice Gorsuch also charges OSHA with flip-flopping, though he appears to have mischaracterized the agency’s earlier position. SeePatterico, An Error in Justice Gorsuch’s Concurrence in the OSHA Vaccine Mandate Case (Jan. 18, 2022), https://patterico.substack.com/p/an-error-in-justice-gorsuchs-concurrence [https://perma.cc/G4AF-95DX].Show More But the concurrence goes deeper into the canon’s roots and rationale:

Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate . . . . It must also act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance.” We sometimes call this the major questions doctrine. 92 92.The Vaccine Case, 142 S. Ct. at 667.Show More

For this, Gorsuch cites Alabama Realtors and his own dissent in Gundy, in which he would have reanimated the nondelegation doctrine by discarding the “intelligible principle” standard in favor of stricter review.93 93.Gundy v. United States, 139 S. Ct. 2116,2138–41 (2019) (Gorsuch, J., dissenting).Show More Completing the doctrinal loop, the Gundy dissent cites the major questions doctrine as an illustration of the Court’s attempts to rein in agency overreach.94 94.Id. at 2141.Show More Though what Gorsuch describes there is the traditional major questions doctrine,95 95.Id.Show More in neither Gundy nor the Vaccine Case does he acknowledge or explain the shift from doctrine to canon. But in both, Gorsuch grounds the rationale for major questions in nondelegation.96 96.Id.; seealso The Vaccine Case, 142 S. Ct.at 668 (Gorsuch, J., concurring) (noting the major questions doctrine covers much the same interests as nondelegation).Show More Indeed, in his Vaccine Case concurrence, Gorsuch writes that were it not for the major questions canon, the vaccine-or-test mandate would be unconstitutional on nondelegation grounds.97 97.The Vaccine Case, 142 S. Ct.at 669 (Gorsuch, J., concurring).Show More The canon, Gorsuch says, is just another way to get at the same separation of powers problem: “The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials. . . . The major questions doctrine serves a similar function by guarding against unintentional, oblique, or otherwise unlikely delegations of the legislative power.”98 98.Id.Show More This suggests the canon is a mere Congressional error correction measure. But Gorsuch continues, clarifying that agencies are the canon’s real target:

Later, the agency may seek to exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond its initial assignment. The major questions doctrine guards against this possibility by recognizing that Congress does not usually “hide elephants in mouseholes.” In this way, the doctrine is “a vital check on expansive and aggressive assertions of executive authority.” 99 99.Id.Show More

Gorsuch thereby merges the Whitman “elephants in mouseholes” line of cases with the major questions mainstream. The “vital check” language comes from then-Judge Kavanaugh’s US Telecom dissent, in which he advanced his “major rules” doctrine.100 100.U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (2017) (en banc) (Kavanaugh, J., dissenting). The citation was not enough, however, to attract Justice Kavanaugh’s vote.Show More For the same sentence, Justice Gorsuch bizarrely cites my 2016 paper in which I defend major questions as protective of Chevron.101 101.Richardson, Keeping Big Cases,supranote 13, at 359.Show More At no point in that paper (and certainly not in the cited portion) do I argue that the doctrine is justified as a means to restrain agencies, much less that they are “expansive and aggressive” extralegal actors.

Justice Gorsuch’s opinion is only a concurrence, joined by two other justices. But it and the majority opinion apply the major questions canon in the same way, with Justice Gorsuch merely going into more depth. And there is no doubt that it now operates as a canon, leaving its Chevron constraints behind—none of the opinions in the Vaccine Case or Alabama Realtors even mention Chevron. In this switch to a canon, the major questions doctrine has subsumed the “elephants in mouseholes” line of cases and emerged, it appears, as the nondelegation doctrine in other clothes.

D. Climate

The COVID cases established the new canon. Two further climate-related cases in 2022 may further illustrate its significance.

Just weeks after the Vaccine Case, Judge James Cain of the Western District of Louisiana issued an order enjoining use of federal government social cost of carbon estimates.102 102.Louisiana v. Biden, No. 2:21-CV-01074, 2022 WL 438313, at *21 (W.D. La. Feb. 11, 2022).Show More As in the COVID cases, Judge Cain’s opinion relies heavily on the major questions canon to conclude challengers are likely to succeed on the merits,103 103.Id. at 29–34.Show More with only the briefest consideration of the equities.104 104.Id. at 40–44 (simply restating plaintiffs’ equities arguments and indicating agreement).Show More Judge Cain concludes that estimation of the social cost of carbon is a “major” action which lacks clear authorization from Congress.105 105.Id. at 30–34.Show More Deference is never on the table. Chevron is not cited. The opinion cites virtually all of the major questions precedents, all the way back to Breyer’s 1986 article.106 106.Id. at 29. The opinion relies most heavily on Justice Kavanaugh’s statement respecting denial of certiorari in Paul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).Show More Judge Cain’s order was struck down on appeal on standing grounds; its final fate remains unclear107 107.SeeLouisiana v. Biden, No. 22-30087, 2022 WL 866282 at *2 (5th Cir. Mar. 16, 2022).Show More—but the case illustrates that the major questions canon is not restricted to the Supreme Court.108 108.Michael Coenen and Seth Davis persuasively argued for restricting the major questions doctrine to the Supreme Court in a 2017 paper. See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 839–43 (2017). The Court seems not to have listened, giving no signal in the COVID cases that lower courts should steer clear—and, unsurprisingly, lower court judges seem unwilling to tie their own hands.Show More

The Court will have another opportunity to apply the canon in West Virginia, a third challenge to EPA’s authority to regulate carbon emissions under the Clean Air Act.109 109.Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021).Show More The case stems from the agency’s attempts to regulate fossil-fueled power plants, beginning with the Obama EPA’s Clean Power Plan,110 110.Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (codified as amended at 40 C.F.R. pt. 60).Show More That rule was stayed by the Court,111 111.See West Virginia v. EPA, 136 S. Ct. 1000 (2016) (order granting stay).Show More then repealed by the Trump EPA and replaced with the weaker Affordable Clean Energy (“ACE”) rule.112 112.Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520, 32,521 (July 8, 2019) (codified as amended at 40 C.F.R. pt. 60).Show More Environmental groups and states challenged the ACE rule, and the D.C. Circuit vacated it in early 2021.113 113.Am. Lung Ass’n v. EPA, 985 F.3d 914, 949–50 (D.C. Cir. 2021).Show More In its ruling, the D.C. Circuit denied Chevron deference to the EPA and rejected arguments from the agency that the major questions doctrine compelled its narrow reading of the statute.114 114.Id. at 958–68.Show More Subsequently, the Biden EPA declined to defend the ACE rule, and indicated it had begun working on a replacement. Surprisingly, given the lack of an actual rule in place backed by the government, the Court granted certiorari.115 115.Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021); seealsoJonathan Adler, Supreme Court Agrees to Hear Case Challenging EPA Authority to Regulate Greenhouse Gases, Reason: The Volokh Conspiracy (Oct. 29, 2021), https://reason.com/volokh/2021/10/29/supreme-court-agrees-to-hear-case-challenging-epa-authority-to-regulate-greenhouse-gases/ [https://perma.cc/ZW8U-FMFT] (discussing grant of certiorari in West Virginia v. EPA).Show More

West Virginia’s framing of the question presented invites a major questions ruling:

[Whether, . . . i]n . . . an ancillary provision of the Clean Air Act, . . . Congress constitutionally authorize[d] the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements[.]116 116.Petition for Writ of Certiorari at i, West Virginia v. EPA, No. 20-1530 (Apr. 29, 2021), 2020 WL 9439135, at *i.Show More

So framed, this presupposes that climate rules for power plants are “significant” because of their economic effects, triggering the major questions canon. And by calling the relevant provision “ancillary,” it also presupposes that the statute lacks the requisite clarity. Furthermore, it also raises the specter of constitutional limits—i.e., nondelegation.

West Virginia’s brief refers to “the major questions canon of construction,” defined as the requirement that “Congress must delegate with unmissable clarity if it intends to give an agency economy-transforming abilities to decide major questions. . . .”117 117.Brief for Petitioners at 14, West Virginia v. EPA, No. 20–1530 (Dec. 13, 2021), 2021 WL 5982772, at *14.Show More The brief treats the canon as a constant doctrinal principle dating back to the Benzene Case,118 118.Id. at 44.Show More rooted in nondelegation,119 119.Id. at 46.Show More and a response to “the danger posed by the growing power of the administrative state.”120 120.Id. at 15 (quoting City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting)).Show More It does not mention Chevron deference.121 121.Id. at 43 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,467 U.S. 837, 863 (1984), as a Clean Air Act case only).Show More Another petitioner’s brief goes further, suggesting that the major questions doctrine requires rejecting any statutory interpretation that would convey “vast power to decide matters of great economic or political significance”—if accepted, this would openly merge major questions with the non-delegation doctrine.122 122.Brief for Petitioner the North American Coal Corporation at 15, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Dec. 13, 2021), 2021 WL 5982771, at *15.Show More The respondents’ briefs argue that the doctrine should not apply,123 123.See Brief for the Federal Respondents at 13–14, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 18, 2022), 2022 WL 216161, at 13–14; Brief of Non-Governmental Organization & Trade Association Respondents at 42–49, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 18, 2022), 2022 WL 209765, at *42–49 (denying the applicability of major questions without challenging its existence).Show More but none question the canon.124 124.At least one amicus does question it, however. See Brief of Amicus CuriaeRichard L. Revesz at 5–21, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 25, 2022) (criticizing quality of economic analysis in major questions cases and arguing that “public salience” is not a workable threshold factor).Show More

Perhaps the Court will dismiss West Virginia v. EPA on standing or other threshold grounds, as observers ranging from environmental groups125 125.Brief of Non-Governmental Organization & Trade Association Respondents, supra note 123, at 23–32.Show More to center-right law professor Jonathan Adler have encouraged.126 126.Jonathan Adler, Standing in West Virginia v. EPA Revisited, Reason: The Volokh Conspiracy (Feb. 21, 2022), https://reason.com/volokh/2022/02/21/standing-in-west-virginia-v-epa-revisited/ [https://perma.cc/8TKC-WD98] (arguing that the Court should consider dismissing the case on standing grounds).Show More If not, the major questions canon is highly likely to play a role: major questions was mentioned more than forty times in oral arguments, by every Justice except Gorsuch.127 127.SeeTranscript of Oral Argument, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Feb. 28, 2022), 2022 WL 606593.Show More Judging by the COVID cases, the likely result is a decision by the Court crippling the ability of the federal government to act on climate change.

III. Implications

The Court has moved in a sharply anti-administrative direction in the last decade.128 128.SeeMetzger,supranote 1, at 2–6.Show More Some Justices appear to view agencies (or at least agencies advancing policies they do not like) as rogue actors of questionable constitutionality.129 129.See, e.g., The Vaccine Case, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring); seealsoMichigan v. EPA, 576 U.S. 743, 763 (2015) (Thomas, J., concurring) (suggesting constitutional issues with deference to agencies); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (indicating agency deference permits executive agencies to unconstitutionally exercise legislative and judicial power).Show More So far, this shift on the Court has primarily occurred via sharp decline in Chevron deference.130 130.SeeRichardson, Deference is Dead, supra note 2, at 502–05.Show More There is some appetite on the Court for overturning Chevron131 131.Id. at 494–502.Show More and for reanimating the nondelegation doctrine.132 132.Gundy v. United States, 139 S. Ct. 2116, 2138–41 (2019) (Gorsuch, J., dissenting).Show More

In this environment, a shift from major questions doctrine to major questions canon might seem like small potatoes. But it is at least as great of a constraint on the administrative state and, ultimately, on Congress and popular rule. These dangers were apparent under the traditional major questions doctrine,133 133.See Richardson, Keeping Big Cases,supranote 13, at 390–409 (comprehensively detailing scholarly arguments regarding the major questions doctrine, most of them critical). SeeEmerson,supranote 30,at 2041–42 (critiquing the doctrine on the grounds that it is antidemocratic).Show More but canonization has radically exacerbated them.

A. Deference

The Supreme Court has allowed the administrative state to function by ceding at least some interpretive authority to agencies since the New Deal134 134.Emerson, supranote 30, at 2031–32.Show More (and probably since the founding).135 135.SeeJulian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 293–300 (2021).Show More This forbearance empowered not just agencies but Congress, allowing it to legislate without constantly being second-guessed by the courts. Chevron crystallized this deference regime into a rule in the 1980s.136 136.SeeRichardson, Deference is Dead, supra note 2, at 446–52.Show More The various exceptions to Chevron that emerged in the decades that followed, including the major questions doctrine, eroded that rule, but only partially altered the interbranch balance of power because they did not challenge the basic ability of Congress to delegate authority to agencies.137 137.Id. at 452–74.Show More Even if deference to an agency reading was not due in “major” cases, Congress remained in charge.138 138.King v. Burwell, 576 U.S. 473 (2015),is the best illustration.Show More The Court’s role in both major and “normal” cases, derived from the APA, was merely to interpret statutes as written, blocking agency actions that exceeded their delegated authority.139 139.See 5 U.S.C. § 706. SeealsoBlake Emerson, “Policy” in the Administrative Procedure Act: Implications for Delegation, Deference, and Democracy, Chi.-Kent L. Rev. (forthcoming 2022) at 26–31, https://papers.ssrn.com/sol3/papers.cfm?abstr​act_id=4043899, [https://perma​.cc/697K-S8GT] (arguing that the major questions doctrine and robust nondelegation enforcement by courts are inconsistent with the APA).Show More The major questions doctrine therefore moved the court from a position of deference to one of neutrality with respect to the agency. In so doing, it undermined Chevron, both directly by excluding major cases, and indirectly by drawing into question the assumptions of agency competence and implied delegation on which Chevron relies. 140 140.See Richardson, Keeping Big Cases, supranote 13, at 390–92; seealsoRichardson, Deference is Dead, supra note 2, at 470–72 (noting major questions has increased unpredictability surrounding Chevron’s proper scope).Show More If you think Chevron is good, this is grounds for criticizing the doctrine,141 141.SeeRichardson, Keeping Big Cases, supranote 13, at 405.Show More though an alternative interpretation I have suggested is that it protected Chevron in lower-stakes cases.142 142.Id. at 409–27.Show More

Canonization ends any debate over the relationship to Chevron. As illustrated by the COVID cases, Chevron disappears entirely. More than that, Chevron’s deference rule is reversed—agency interpretations of statutes that trigger “major” questions aren’t just denied deference, they are actively suspect. The Court has moved from neutrality to antideference. For the same reason, the major questions canon cannot fulfill the Chevron-shielding role I have earlier suggested was its sole redeeming feature.143 143.One might suspect that severing major cases from Chevron entirely, as the canon does, protects it even better. But even if that were true in theory, it is irrelevant in practice given the sharp decline in Chevron’s relevance at the Court. There’s just nothing to protect anymore.Show More

B. Indeterminacy

The most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary. The Court never says what makes a case “major” or “extraordinary,” other than a general reference to “economic and political significance.” 144 144.I have earlier suggested, tentatively, that major questions cases arise when four factors are present: a major shift in regulatory scope, economic significance, political controversy, and thin (i.e., brief) statutory basis. SeeRichardson, Keeping Big Cases, supranote 13, at 381–85. The last of these factors is probably better understood as part of the subsequent inquiry into whether the clear statement rule is satisfied.Show More Whether the regulatory action at issue is a break with past agency practice seems to be another factor.145 145.See,e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000); id. at 186–89 (Breyer, J., dissenting).Show More But all of these criteria are woefully indeterminate. Even pedestrian cases can be described as politically controversial—“[e]lephants and mouseholes are in the eye of the beholder.”146 146.Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010). More colorfully, they note that “we cannot easily know that what we find in the mousehole is truly an elephant—and not just a rather plump mouse.”Show More In practice, whether a case qualifies as “major” is a thin line with “no metric . . . for making the necessary distinctions.”147 147.Cass R. Sunstein, Beyond Marbury: The Executive’s Power to Say What the Law Is, 115 Yale L.J. 2580, 2607 (2006).Show More Then-judge Kavanaugh recognized as much in his US Telecom dissent, admitting that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”148 148.U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 423 (2017) (en banc) (Kavanaugh, J., dissenting).Show More

The major questions canon cases have further muddied boundaries, adding to the list of factors making a case “major” while providing only perfunctory analysis of why factors new and old are met by the regulation in question. In Alabama Realtors, the Court highlights the economic impact of the eviction moratorium, but its analysis of that impact is paper-thin—the $50 billion cost the Court cites is not an estimate of the moratorium’s impact, but an at best tangentially related figure: the total rent relief funding already provided by Congress during the pandemic.149 149.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021).Show More The Vaccine Case Court’s “analysis” of the regulation’s significance is even more perfunctory, little more than a bare assertion that “[t]here can be little doubt that OSHA’s mandate qualifies.”150 150.The Vaccine Case, 142 S. Ct. 661, 665 (2022).Show More The only supporting fact is that an estimated 84 million Americans would have to get vaccinated or test regularly, which the Court characterizes as “no ‘everyday exercise of federal power.’”151 151.Id.Show More This suggests (but does not say) that regulations affecting individual autonomy, perhaps especially medical autonomy, will be more readily deemed “major” questions. In neither of the COVID cases is the political salience of the pandemic and policy responses discussed, though it must surely be a factor.

The COVID cases are not unique—the Court’s analysis of economic impacts in major questions cases is often slipshod and simplistic. As Richard Revesz notes, the Court often focuses on “decontextualized” regulatory costs.152 152.Brief of Amicus CuriaeRichard L. Revesz, supra note 124, at 10–11.Show More This creates perverse incentives for agencies, encouraging them to choose regulations with lower cost even if their preferred option has higher net benefits, or to fragment regulatory actions to avoid their being characterized as “major.” Revesz also argues that reliance on political salience “place[s] the courts in the uncomfortable (and untenable) position of determining what quantum of public attention is sufficient to divest an agency of a previously held power.”153 153.Id. at 20–21.Show More

After decades of major questions cases, the Court has failed to give any clear or consistent guidance on its boundaries. As Revesz suggests, the Court’s criteria for determining majorness “fail to offer ‘limited and precise standards that are clear, manageable, and politically neutral.’”154 154.Id. at 5 (citing Rucho v. Common Cause, 139 S. Ct. 2484, 2500 (2019)).Show More As Justice Kagan asked at oral argument in West Virginia, “how big does a question have to be?”155 155.Transcript of Oral Argument, West Virginia v. EPA, supra note 127, at 28–29.Show More One is left with the distinct impression that a major question is nothing more than a challenge to a regulation that is personally unpalatable to at least five Justices. Under the major questions canon, it is not just statutory interpretation, but the standard of review that comes under judges’ full control.

The indeterminate scope of the major questions doctrine sharply undercuts the claim that it promotes democratic legitimacy. To be sure, it is far from the first substantive canon or clear statement rule.156 156.See generally William Eskridge, Jr., & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 596–97 (1992) (documenting over a dozen substantive canons and clear statement rules).Show More But many other substantive canons have clear (or at least clearer) boundaries.157 157.See Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 829–30 (2017) (identifying only a small group of canons that do “meaningful work on the modern Court”).Show More They are also well-established, and Congress can and does therefore legislate in their shadow.158 158.See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 942–47 (2013); seealso John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L Rev. 1, 125 (2001) (citing Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 581 (1990)) (“[O]nce rules of construction ‘have been long indulged…the legislature presumably has them in mind when it chooses its language.’”).Show More Congress is well aware (for example) of the federalism canon, can recognize when it is altering the federal/state balance of authority, and can therefore legislate more explicitly as the canon requires. On the contrary, it is hard or impossible to predict what will become a major question in the future.159 159.Gluck & Bressman, supra note 158, at 945 (finding little awareness of clear statement canons by congressional staff).Show More In many contexts, there is no way for Congress to know when delegated authority may be used, how consistently it will be interpreted, and when it will become politically controversial—and therefore which delegations demand additional clarity to satisfy the major questions doctrine.160 160.Consider, for example, the statutory interpretation issue in King v. Burwell, 576 U.S. 473 (2015), which arose from poor drafting, rather than any attempt to leave a gap for agencies to fill.Show More

C. Text

The Court has given similarly scant guidance on what Congress must do to satisfy the doctrine’s clear statement rule. One might expect the answer to lie in the statutory text, analysis of which the traditional version of the doctrine purports to compel. Direct engagement with text (rather than agency views) is among the canon’s professed virtues.161 161.SeeU.S. Telecom Ass’n v. FCC, 855 F.3d 381, 405 (2017) (Brown, J., dissenting) (“[T]he clear statement rule requires reading the statute, not nodding along with the agency.”).Show More

But the COVID cases show that, in practice, the canon licenses remarkably atextual statutory analysis. Even apparently broad grants of authority may not be upheld. Old statutes are suspect, even those consistently in use,162 162.See Heinzerling,supranote 1, at 1948–50 (describing Utility Air’s disdain for delegations in old statutes as an innovation, and in particular a break with Justice Scalia’s past rulings).Show More if the agency is changing its past practice or relying on an allegedly “ancillary” provision to do something new. 163 163.If Congress makes a broad grant of authority that is immediately used, the Court may regard it as legitimate. But a similarly broad grant becomes suspect if not used for a long period. See,e.g.,FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 144 (2000) (finding FDA lacked authority to regulate tobacco because the agency had repeatedly declined to do so in the past); The Vaccine Case, 142 S. Ct. 661, 666 (2022) (“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind . . . .”). Seealso Jonathan H. Adler, A “Step Zero” for Delegations 27 (Nov. 23, 2021) (unpublished manuscript), https://ssrn.com/abstract=3686767 [https://perma.cc/T4XJ-MHJK] (arguing that courts should be suspect of agencies using old delegations of authority in a new manner).Show More Past agency practice informs the scope of authority—delegated authority appears to be “use it or lose it.” For example, in Alabama Realtors, the statute’s age and an alleged lack of similar past moratoria is relevant. That emergency CDC pandemic powers should be expected to be used only rarely is not.164 164.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2487, 2489 (2021).Show More Implied repeal by later legislation, normally disfavored,165 165.See,e.g.,Rodriguez v. United States, 480 U.S. 522, 524 (1987) (“[R]epeals by implication are not favored . . . and will not be found unless an intent to repeal is ‘clear and manifest.’”) (citations omitted); see also,Jesse W. Markham, Jr., The Supreme Court’s New Implied Repeal Doctrine: Expanding Judicial Power to Rewrite Legislation Under the Ballooning Conception of “Plain Repugnancy”, 45 Gonzaga L. Rev. 437, 438 (2009) (“[O]ver hundreds of years, implied partial repeals were strongly disfavored . . . .”).Show More is also common in major questions cases.166 166.See,e.g.,Brown & Williamson, 529 U.S. at 143.Show More In both COVID cases, even post-enactment inaction by Congress effected implied repeal, somehow reducing clarity of previous delegations.167 167.See Alabama Realtors,141 S. Ct. at 2490; The Vaccine Case, 142 S. Ct. at 666.Show More Justice Gorsuch’s Vaccine Case concurrence would revive a selectively-imposed one-house veto.168 168.A one-house veto was rejected as unconstitutional in INS v. Chadha, 462 U.S. 919, 959 (1983). As Amit Narang describes, a major questions canon premised on legislative inaction achieves the same result as the never-passed REINS Act, which would have required Congressional approval of major regulations, effectively giving either house a veto. Amit Narang, Twitter (Feb. 14, 2022, 8:00 PM), https://twitter.com/tryptique/status/149331423717​9080719 [https://perma.cc/7966-KSYS?type=image].Show More

As Anita Krishnakumar observes, such statutory analysis in the COVID cases is “decidedly atextual.”169 169.Anita Krishnakumar, Some Brief Thoughts on Gorsuch’s Opinion in NFIB v. OSHA, Election L. Blog (Jan. 15, 2022), https://electionlawblog.org/?p=126944 [https://perma.cc/N​3GT-DVPX].Show More Reliance on substantive canons is not new, of course, but “[u]sually, when the Justices invoke a substantive canon, they also at least attempt to analyze the statute’s text—even if only to conclude that the text is ambiguous, thereby (conveniently) necessitating recourse to a substantive canon.”170 170.Id.; seealso Krishnakumar,supranote 157, at 825 (analyzing Roberts court cases and concluding that substantive canons are “infrequently invoked” and “rarely play an outcome-determinative role” that trumps textual analysis).Show More Not so in major questions cases, where the allegedly extraordinary nature of the regulations at issue trumps any need to seriously engage with statutory text.

As Krishnakumar further notes, this atextuality is particularly surprising coming from the Court’s professed textualists.171 171.See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (“Only the written word is the law, and all persons are entitled to its benefit.”).Show More Justice Scalia often warned of the mischief enabled by substantive canons,172 172.See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, The Tanner Lectures on Human Values 100–03 (March 8–9, 1995), https://tannerlectures.utah.edu/_resources/docume​nts/a-to-z/s/scalia97.pdf, [https://perma.cc/3Q9X-LCTV]; but see Heinzerling, supranote 1, at 1941 (characterizing Scalia as “the Court’s most ardent promoter of interpretive canons in general”).Show More exceptions to Chevron’s framework,173 173.See,e.g., United States v. Mead Corp., 533 U.S. 218, 245 (2001) (Scalia, J., dissenting).Show More and the temptations of the nondelegation doctrine.174 174.See Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting) (“[W]e have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”).Show More Freed from the chains of doctrine, he feared, judges would be free to impose their preferences, hidden by ostensibly neutral principles.

But whatever Scalia said about guarding against the temptations of judicial policymaking, he engaged in his share in major questions cases. He accepted Brown & Williamson’s reliance on post-enactment implied repeal, introduced the at best tenuously textual “elephants in mouseholes” principle in Whitman, and ushered in the major questions canon with his Utility Air opinion. Judicial forbearance was just fine for other people. Scalia more than any other Justice was the major questions canon’s architect.

In hindsight, it is possible to reevaluate Justice Scalia’s professed dislike of doctrinal innovations permitting judicial aggrandizement. Serving on a divided Court, such tools could be used by both sides. Not so for Scalia’s successors today. With a six-to-three majority, the Court’s anti-administrativists need fear no turnabout. Atextual opinions like Justice Gorsuch’s Vaccine Case concurrence cannot now be weaponized by the other side of the bench. Justice Kagan, a professed textualist, thinks this has gone too far, expressing frustration in recent oral arguments:

[W]e’re going to be thinking about the supposed major questions canon. There are other canons.

. . . Some of them help the government. Some of them hurt the government. . . . Maybe we should just toss them all out . . . .

. . . .

. . . I think kind of we should, honestly. Like, what are we doing here?”175 175.Transcript of Oral Argument, supra note 127, at 59–60.Show More

But at least the atextualism of the major questions canon lets us see it for what it is: a license for judicial aggrandizement, in the hands of a profoundly anti-administrative Court. We have been down this road before: Chevron itself requires courts to determine statutory clarity. If the Court’s Chevron jurisprudence is any guide, the Justices are unable to do so consistently—Chevron’s statutory clarity standard has relentlessly grown, swallowing the deference rule.176 176.SeeRichardson, Deference is Dead, supra note 2, at 459–70.Show More There is little reason to think the major questions canon’s clear statement rule will be applied any more consistently. None other than Justice Kavanaugh has claimed that judges “cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way” and that judges instead decide cases by “selectively picking among a wealth of canons of construction.”177 177.SeeBrett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118–19 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)).Show More

In forsaking text, judges applying the major questions canon have wrested control. Congress is no longer in charge of its own statutes.178 178.See Eskridge & Frickey,supranote 156,at 597.Show More Because what makes a case major and what makes a statute sufficiently clear are entirely within the discretion of judges, there are no meaningful limits to the canon’s reach.

D. Veto

Structurally, the major questions doctrine creates a new policy veto point. Political polarization and the rise of the filibuster have made legislating difficult. The rise of the major questions canon means legislation that has navigated all the other constitutional and political veto points may then be rejected by the courts—not because it is explicitly unconstitutional, nor because an agency has gone further than the text of the statute allows, but because at least five justices have deemed it “major” legislation that is not sufficiently clear. And as Judge Cain’s social cost of carbon decision shows, that judicial veto can be imposed by a single district court judge.179 179.See Louisiana v. Biden, No. 2:21-CV-01074, 2022 WL 438313, at *1, 44 (W.D. La. Feb. 11, 2022).Show More

Even worse, this new veto point makes it harder to navigate the existing ones. Surviving the canon (if it is possible at all) requires explicit delegation. But it is much harder to get legislative consensus behind explicit language.180 180.Consider, for example, the liability standard under CERCLA. Early drafts of the bill included language imposing joint and several liability, but this attracted significant opposition. The language was therefore deleted from the final bill and replaced with a reference to the Clean Water Act’s liability standard. Courts nevertheless subsequently interpreted CERCLA generally (but not universally) to impose joint and several liability. SeegenerallyUnited States v. Chem-Dyne Corp., 572 F. Supp 802, 806–08 (S.D. Ohio 1983) (describing the Congressional battle over joint and several liability).Show More Congress may delegate to agencies not only because they have greater expertise, but also to avoid deciding a politically difficult point, or to delay doing so—that is normal, not illegitimate.181 181.See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2255–56 (2001) (“Sometimes Congress legislated [via broad delegations] because it recognized limits to its own knowledge or capacity to respond to changing circumstances; sometimes because it could not reach agreement on specifics, given limited time and diverse interests; and sometimes because it wished to pass on to another body politically difficult decisions.”).Show More If Congress can never delegate an allegedly “major” question but instead must answer it explicitly, the result may be that legislation cannot pass.182 182.Of course, whether this is bad depends on whether one views legislation as a net positive. In my view, the COVID-19 pandemic and climate change are only the most salient illustrations that it is. ButseeThe Federalist No. 62, at 415–22 (Alexander Hamilton or James Madison) (Jacob Cook ed., 1961) (describing an “excess of law-making” as one of “the diseases to which our governments are most liable”).Show More

Even attempting to overcome the canon’s veto can undercut Congress’s power. New legislation will likely be required to satisfy the clear statement rule. But if politics, procedural barriers, veto points, or sheer complexity make it difficult or impossible for Congress to re-authorize or expand authority,183 183.SeeDaniel Walters & Elliot Ash, If We Build It, Will They Legislate? Empirically Testing the Potential of the Nondelegation Doctrine to Curb Congressional “Abdication,” 108 Cornell L. Rev (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=404​5079 [https://perma.cc/YS88-R3ZW] (examining legislative behavior in states with robust nondelegation doctrines and finding only limited change in delegation practices—and some evidence that a strong nondelegation doctrine leads to more implied delegation).Show More then that can be weaponized under the major questions canon as indicative of Congressional intent not to do so—retroactive repeal by inaction. This is especially ironic because the difficulty of passing new legislation is often what inspires agencies to look to preexisting authority in the first place. But even if Congress does manage to pass new legislation, it may not be enough. The Court could still rule that it is insufficiently clear to grant authority, permitting only incremental regulation today but nothing more innovative or expansive in the future, or that it delegates more power than the Constitution allows.

E. Democracy

Blake Emerson (among others) argues that the traditional major questions doctrine undermined “democratic-constitutional values . . . by failing to respect the deliberative capacities of administrative agencies.”184 184.SeeEmerson, supranote 30, at 2024; see also Sunstein, Chevron Step Zero, supranote 49, at 233 (arguing Congress may prefer agencies over courts to handle major questions); Richardson, Keeping Big Cases, supranote 13, at 404–09 (cataloging structural critiques of the doctrine).Show More It also reallocated interpretive authority from agencies controlled by Congress and the President to unelected and life-tenured judges, making government less representative and responsive.

The doctrine’s architects allege that it is necessary to restrain agencies that, in their view, are a threat to democratic accountability and constitutionally guaranteed freedoms, ever ready to expand their reach beyond the powers Congress has granted.185 185.See,e.g., The Vaccine Case, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring); seealsoLisa Schultz Bressman, Deference & Democracy, 75 Geo. Wash. L. Rev. 761, 764–65 (2007) (arguing that the major questions doctrine protects against agency overreach).Show More For reasons that are never explained, Congress is asleep at the wheel and unable to restrain agencies. Thus, the task is left to judges. But if, instead, you view administrative government as democratically legitimate, with its authority flowing from the people through Congress and the President,186 186.See,e.g.,Jerry L. Mashaw, Prodelegation:Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81, 95–96 (1985).Show More the doctrine is a threat to those virtues, concentrated in those cases with the greatest political salience.187 187.SeeEmerson, supranote 30, at 2023–24.Show More

Canonization further increases judicial power. The traditional version of the doctrine could perhaps be defended on the grounds that it was a judicially created exception to implied delegation, itself arguably a judicial creation.188 188.See Bressman, supranote 31, at 2009. ButseeGluck & Bressman, Statutory Interpretation from the Inside, supranote 158, at 993 (finding a very high awareness of Chevron by congressional staff and that a “desire for agenc[ies] to fill gaps results in ambiguities in legislation”).Show More But under the major questions canon, the agency exits the statutory interpretation picture, leaving the courts to deal directly with the statute and inviting judges to substitute their views not just for the agency’s, but for Congress’s. The very democratic and separation of powers principles frequently cited by the Court to justify the doctrine—that the elected legislature, not unelected bureaucrats must make the laws—are violated when judges with even greater removal from the electorate exercise a legislative veto. For David Driesen, the major questions canon is nothing more than “juristocracy”:

In important cases, the Court has abandoned the role that the Administrative Procedure Act assigns it—checking the executive branch when it contravenes the policies that Congress and the President have approved. Instead, it has assumed the role of constraining the faithful execution of the law based on unpredictable judicial fiats.189 189.David M. Driesen, Major Questions and Juristocracy, The Regulatory Review (Jan. 31, 2022), https://www.theregreview.org/2022/01/31/driesen-major-questions-juristocracy/ [http​s://perma.cc/N7UV-HD43].Show More

If the anti-administrativists want to constrain or roll back agency power, they should propose doing so openly and contest elections on that basis, not give courts a veto over policy.

The major questions canon also encodes a status quo bias, potentially crippling the ability of the federal government to deal with the most important public policy problems. Pandemics and other emergencies require flexible authority that can be deployed quickly and at scale. Congress cannot anticipate every policy measure that might be needed, and while it might be ideal if it authorizes them with specific new legislation, that is difficult in normal times and likely impossible in a crisis. Broad delegations of authority to the executive and/or to agencies (with Congressional and judicial oversight) are the only available response. Similarly, long-term problems in areas of evolving scientific understanding like climate change require regulatory durability and flexibility. The success of the Clean Air Act depends on those features,190 190.See Lessons from The Clean Air Act: Building Durability and Adaptability into U.S. Climate and Energy Policy 1–3 (Ann Carlson & Dallas Burtraw eds., 2019).Show More and broad delegations of authority that evolve with new information are at the core of modern administrative government.191 191.SeeMashaw, supranote 186, at 98.Show More

But the major questions canon makes all these delegations suspect. Congress must separately and explicitly authorize every “major” delegation. If the Court means to reshape the post-New Deal order by making all such delegations illegitimate on nondelegation grounds, it should say so and face the political consequences, not hide behind an ostensibly neutral canon of statutory interpretation.

Moreover, the doctrine is further biased because it is only triggered when agencies assert authority to regulate in some new way, never when they decide not to regulate.192 192.See Eskridge & Frickey, supra note 156, at 595–96 (“[U]nlike the linguistic canons or the referential canons, the substantive canons are not policy neutral. They represent value choices by the Court.”).Show More As Lisa Heinzerling puts it,

The major questions doctrine quietly embeds [a] preference [for agency inaction] in the Court’s approach to statutory interpretation.

. . . [This] renders the doctrine not only political, but nonsensical. . . .

. . . [W]hether an agency is deciding not to act on an important problem, or deciding to act on that problem, it is deciding the very same question, with the same degree of economic and political significance. Only the direction, not the magnitude, of these decisions is different.193 193.Lisa Heinzerling (@heinzerlaw), Twitter (Jan. 18, 2022, 11:07 AM), https://twitter.com/​heinzerlaw/sta​tus/1483471214056194068 [https://perma.cc/6XB5-KZFK?type=image].Show More

F. Nondelegation

The major questions canon veto, unlike a Presidential veto, may be impossible for Congress to override with new legislation. A threat of judicial veto via the nondelegation doctrine remains, sometimes implicit and sometimes (as in Gorsuch’s Vaccine Case concurrence) explicit. The Court has sometimes acknowledged194 194.See,e.g.,The Vaccine Case,142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring); Paul v. United States, 140 S. Ct. 342 (2019).Show More and scholars have long identified195 195.See Sunstein, Chevron Step Zero,supranote 49,at 244–45.Show More a connection between the major questions doctrine and nondelegation. The APA grounds judicial review of agency action in statutes. As Driesen argues, by creating a novel and atextual major questions canon, the Court has overstepped that authority. If the canon is not a pure judicial creation, it must therefore be grounded in the Constitution. The only plausible basis is nondelegation. The canon is no longer merely a related principle or an avoidance doctrine, it is the nondelegation doctrine, without speaking its name.196 196.SeeGundy v. United States, 139 S. Ct. 2116 at 2141 (2019) (Gorsuch, J., dissenting) (“We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.”).Show More Critics of administrative power have celebrated Gorsuch’s Vaccine Case concurrence as a “novel, unified theory of separation of powers,” making major questions and nondelegation “two distinct sides of the same coin.”197 197.See Randolph May & Andrew Magloughlin, NFIB v. OSHA: A Unified Separation of Powers Doctrine and Chevron’s No Show 1 (Free State Found., Working Paper, 2022), https://papers.ssrn.com/sol3/papers.c​fm?abstract_id=4067799 [https://perma.cc/U8BQ-TX6​C].Show More This also helps explain the canon’s atextualism. As Justice Barrett has argued, if the source is the Constitution, fidelity to statutory text is secondary.198 198.See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 111 (2010) (“[T]o the extent a canon is constitutionally inspired, its application does not necessarily conflict with the structural norms that constrain judges from engaging in broad, equitable interpretation.”).Show More

In fact, the canon’s indeterminacy makes it even broader than nondelegation. To reject a delegation of authority to an agency on nondelegation grounds requires the Court to say why it is too broad to survive constitutional scrutiny.199 199.See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474 (2001) (finding that the delegation at issue was readily within the Court’s “intelligible principle” standard); seealsoGundy, 139 S. Ct. at 2136–37 (Gorsuch, J., dissenting) (rejecting the “intelligible principle” test, but suggesting it be replaced by a more complex multi-part test).Show More Admittedly this is an imprecise exercise, but at least it’s something. To reject a delegation under the major questions canon, a Court need only say that it is meets a fuzzy majorness standard and fails to meet an even murkier clarity standard.

Conclusion

The major questions canon takes an entire class of cases not only out of Chevron’s deference regime, but out of any meaningful textual or contextual analysis. Instead of avoiding the difficulties of applying the nondelegation doctrine, the major questions canon achieves the same purpose sub rosa. Control over the bounds of the principle is entirely in the hands of judges, with little clarity and no limiting principle. In short, it licenses judicial policymaking while professing to protect Congress and the people from agency overreach. The impacts on democratic accountability and the effectiveness of administrative government are likely to be profoundly negative.

The major questions canon purports to be a matter of principle. It is in reality a matter of power, an assertion of unbounded judicial supremacy in the most important administrative law cases. The danger of major questions juristocracy is that judges—specific people, with lifetime tenure—are empowered to enact their political preferences. Gillian Metzger warned of a “1930s Redux”, a boldly anti-administrative Court relitigating interbranch power struggles thought resolved in the New Deal Era.200 200.SeeMetzger,supranote 1, at 95.Show More But the major questions canon gives the Court powers that its 1930s counterparts never dreamt of.

  1. * Professor of Law, University of South Carolina.
  2. See Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 2, 3–6 (2017); see also Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1969–71 (2017) (noting several Justices have “constitutionally inspired anxieties about the modern administrative state”).
  3. See, e.g., Nathan Richardson, Deference Is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 445 (2021) [hereinafter Richardson, Deference is Dead]; see also Valerie C. Brannon & Jared P Cole, Cong. Rsch. Serv., LSB10204, Deference and its Discontents: Will the Supreme Court Overrule Chevron? (2018) (discussing predictions that Chevron will be overturned).
  4. See, e.g., Heinzerling, supra note 1, at 1970.
  5. See Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting); see also SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2017) (“[W]hether Chevron should remain is a question we may leave for another day.”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring) (calling for Chevron to be reconsidered).
  6. See Richardson, Deference is Dead, supra note 2, at 443.
  7. 139 S. Ct. 2116, 2119–20 (2019).
  8. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2486–90 (2021).
  9. Nat’l Fed’n of Indep. Bus. v. OSHA (The Vaccine Case), 142 S. Ct. 661, 662, 665–67 (2022).
  10. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000). But see infra Section III.A (discussing possible roots of the doctrine in Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Instit. (The Benzene Case), 448 U.S. 607, 645 (1980)).
  11. See Cass R. Sunstein, Law and Administration after Chevron, 90 Colum. L. Rev. 2071, 2075 (1990).
  12. See Richardson, Deference is Dead, supra note 2, at 453–59 (detailing external erosion of Chevron’s domain by creation of a series of exclusion rules).
  13. Id. at 470–72.
  14. See Nathan Richardson, Keeping Big Cases from Making Bad Law: The Resurgent “Major Questions” Doctrine, 49 Conn. L. Rev. 355, 390–409 (2016) [hereinafter Richardson, Keeping Big Cases] (cataloging extensive scholarly critiques of the major questions doctrine).
  15. Id. at 409–26.
  16. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).
  17. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021); The Vaccine Case, 142 S. Ct. 661 (2022).
  18. The Vaccine Case, 142 S. Ct. at 665 (citing Alabama Realtors, 141 S. Ct. at 2489).
  19. See Cass Sunstein, There Are Two Major Questions Doctrines, 73 Admin. L. Rev. 475, 475–77 (2021) [hereinafter Sunstein, Two Major Questions]; see also Heinzerling, supra note 1, at 1944–48 (describing Utility Air as establishing a new “power canon” clear statement rule).
  20. See Alabama Realtors, 141 S. Ct. at 2488–89; The Vaccine Case, 141 S. Ct. at 665.
  21. See, e.g., Alabama Realtors, 141 S. Ct. at 2489 (citing Utility Air, 573 U.S. at 324) (failing to acknowledge any doctrinal shift to canon); see also The Vaccine Case, 141 S. Ct. at 668–70 (Gorsuch, J., concurring) (rooting the major questions canon in the Benzene Case and other nondelegation cases dating back to 1825).
  22. See John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223, 223 (2001).
  23. See, e.g., Sanford Levinson, The United States and Political Dysfunction: “What Are Elections For?”, 61 Drake L. Rev. 959, 961 (2013).
  24. See Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021).
  25. Nathan Richardson, The Supreme Court’s New Threat to Climate Policy, Resources (Nov. 5, 2021), https://www.resources.org/common-resources/the-supreme-courts-new-threat-to-climate-policy/ [https://perma.cc/96RQ-TQ2A].
  26. 512 U.S. 218, 231 (1994).
  27. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (argued in 1999).
  28. See NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 130–31 (1944); see also Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (deferring to the “experienced and informed judgment” of the agency).
  29. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
  30. See Richardson, Deference Is Dead, supra note 2, at 453–59 (detailing external erosion of Chevron’s domain by creation of a series of exclusion rules).
  31. Id; see also Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2032 (2020) (calling Chevron a temporary simplification of the preexisting deference regime).
  32. Or if one is less charitable, the legal fiction. See Lisa Schultz Bressman, Reclaiming the Legal Fiction of Congressional Delegation, 97 Va. L. Rev. 2009, 2009 (2011).
  33. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 373 (1986); see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (describing Chevron as reflecting the belief that statutory gaps reflect implied delegation to the agency).
  34. Breyer, supra note 32, at 390.
  35. Brown & Williamson, 529 U.S. at 123; see also id. at 161, 190–92 (Breyer, J., dissenting).
  36. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994).
  37. See Richardson, Keeping Big Cases, supra note 13, at 364–65.
  38. Brown & Williamson, 529 U.S. at 125.
  39. Id. at 159–60.
  40. Id. at 157–58.
  41. Id. at 159.
  42. Brown & Williamson hints at going further, foreshadowing the future major questions canon. The Court was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Brown & Williamson, 529 U.S. at 160. This line is itself cryptic, but it can be read to suggest a clear statement rule. The better reading, in my view, is that it is merely an admonition to read statutory language with a view to context and purpose.
  43. 549 U.S. 497, 528 (2007).
  44. See Abigail R. Moncrieff, Reincarnating the “Major Questions” Exception to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got it Wrong), 60 Admin. L. Rev. 593, 594 (2008).
  45. 576 U.S. 473 (2015).
  46. Id. at 473–74.
  47. Id.
  48. Id. at 485–86 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). Justice Scalia’s dissent adopts a different interpretation of the statute but does not contest Chief Justice Roberts’s understanding of the major questions doctrine. Id. at 499–517 (Scalia, J., dissenting).
  49. Id. at 486–99.
  50. See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191 (2006).
  51. The Benzene Case, 448 U.S. 607, 645 (1980).
  52. Sunstein, Two Major Questions, supra note 18, at 484–85.
  53. 531 U.S. 457, 468 (2001).
  54. Id.
  55. See Gonzales v. Oregon, 546 U.S. 243, 267 (2006).
  56. See Whitman, 531 U.S. at 472–74; The Benzene Case, 448 U.S. at 646.
  57. Sunstein, Two Major Questions, supra note 18, at 483–84, Heinzerling, supra note 1, at 1944–54.
  58. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014).
  59. Id. at 324 (first citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. at 159; then citing MCI, 512 U.S. at 231; and then citing The Benzene Case, 448 U.S. at 645–46).
  60. MCI is a close parallel, in that both it and Utility Air are best understood as Chevron step two cases. See MCI, 512 U.S. at 229; Utility Air, 573 U.S. at 321.
  61. See Utility Air, 573 U.S. at 316–20 (comparing the Clean Air Act provision at issue with similar provisions in the statute).
  62. See, e.g., Jody Freeman, Why I Worry About UARG, 39 Harv. Env’t L. Rev 9, 16–17 (2015); see also Richardson, The Rise and Fall of Clean Air Act Climate Policy, 10 Mich. J. Env’t & Admin. L. 69, 107 (2020) (noting the “substantial legal uncertainty” created by the Court’s move in Utility Air).
  63. Freeman, supra note 61, at 10.
  64. Id. at 21.
  65. After being cited in a majority opinion just twice between 2001 and 2016 (see notes 52, 54), the Court cited “elephants in mouseholes” seven times between 2017 and 2021. See Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 127 (2016), Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018), Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 984 (2017), Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1903 (2019), Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1354 (2020), Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1753 (2020), AMG Cap. Mgmt., LLC v. FTC, 141 S. Ct. 1341 (2021). None of these are readily recognizable as major questions cases involving disputed statutory delegations to an agency, however.
  66. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 418–35 (2017) (en banc) (Kavanaugh, J., dissenting).
  67. Id. at 417, 419–22. For this requirement, he cited the Benzene Case, 448 U.S. 607, 645–46(1980); MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000); Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (“elephants in mouseholes” major questions case); and Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).
  68. See Paul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).
  69. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2485 (2021).
  70. Id. at 2487 (citing Nken v. Holder, 556 U.S. 418 (2009)).
  71. Id. at 2490.
  72. Id. at 2489.
  73. Id. (first citing Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014); and then citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).
  74. See Public Health Service Act §361(a), 42 U.S.C. § 264(a). The statute then gives examples of actions the agency might take under this authority, including “inspection, fumigation, disinfection . . . and other measures, as in his judgment may be necessary.”
  75. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488 (2021).
  76. Id. at 2491–92 (Breyer, J., dissenting) (Justice Breyer would reverse the majority’s presumption: “If Congress had meant to exclude these types of measures from its broad grant of authority, it likely would have said so.”).
  77. Id. at 2489.
  78. Id.
  79. Id.
  80. Id. at 2490.
  81. The Vaccine Case, 142 S. Ct. 661, 663 (2022).
  82. Occupational Safety and Health Act § 3(8), 29 U.S.C. § 652(8).
  83. The Vaccine Case, 141 S. Ct. at 662–63.
  84. Id.
  85. Id. at 665 (citing Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021)).
  86. Id.
  87. Id.
  88. See The Benzene Case, 448 U.S. 607, 613 (1980).
  89. The Vaccine Case, 142 S. Ct. 661, 666 (2022).
  90. Id.
  91. See Will Baude, Balancing the Equities in the Vaccine Mandate Case, Reason: The Volokh Conspiracy (Jan. 14, 2022), https://reason.com/volokh/2022/01/14/balancing-the-equities-in-the-vaccine-mandate-case/ [https://perma.cc/Y7YH-3V7N].
  92. The Vaccine Case, 142 S. Ct. at 668 (Gorsuch, J., concurring). Justice Gorsuch also charges OSHA with flip-flopping, though he appears to have mischaracterized the agency’s earlier position. See Patterico, An Error in Justice Gorsuch’s Concurrence in the OSHA Vaccine Mandate Case (Jan. 18, 2022), https://patterico.substack.com/p/an-error-in-justice-gorsuchs-concurrence [https://perma.cc/G4AF-95DX].
  93. The Vaccine Case, 142 S. Ct. at 667.
  94. Gundy v. United States, 139 S. Ct. 2116, 2138–41 (2019) (Gorsuch, J., dissenting).
  95. Id. at 2141.
  96. Id.
  97. Id.; see also The Vaccine Case, 142 S. Ct. at 668 (Gorsuch, J., concurring) (noting the major questions doctrine covers much the same interests as nondelegation).
  98. The Vaccine Case, 142 S. Ct. at 669 (Gorsuch, J., concurring).
  99. Id.
  100. Id.
  101. U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (2017) (en banc) (Kavanaugh, J., dissenting). The citation was not enough, however, to attract Justice Kavanaugh’s vote.
  102. Richardson, Keeping Big Cases, supra note 13, at 359.
  103. Louisiana v. Biden, No. 2:21-CV-01074, 2022 WL 438313, at *21 (W.D. La. Feb. 11, 2022).
  104. Id. at 29–34.
  105. Id. at 40–44 (simply restating plaintiffs’ equities arguments and indicating agreement).
  106. Id. at 30–34.
  107. Id. at 29. The opinion relies most heavily on Justice Kavanaugh’s statement respecting denial of certiorari in Paul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).
  108. See Louisiana v. Biden, No. 22-30087, 2022 WL 866282 at *2 (5th Cir. Mar. 16, 2022).
  109. Michael Coenen and Seth Davis persuasively argued for restricting the major questions doctrine to the Supreme Court in a 2017 paper. See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 839–43 (2017). The Court seems not to have listened, giving no signal in the COVID cases that lower courts should steer clear—and, unsurprisingly, lower court judges seem unwilling to tie their own hands.
  110. Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021).
  111. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (codified as amended at 40 C.F.R. pt. 60).
  112. See West Virginia v. EPA, 136 S. Ct. 1000 (2016) (order granting stay).
  113. Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520, 32,521 (July 8, 2019) (codified as amended at 40 C.F.R. pt. 60).
  114. Am. Lung Ass’n v. EPA, 985 F.3d 914, 949–50 (D.C. Cir. 2021).
  115. Id. at 958–68.
  116. Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021); see also Jonathan Adler, Supreme Court Agrees to Hear Case Challenging EPA Authority to Regulate Greenhouse Gases, Reason: The Volokh Conspiracy (Oct. 29, 2021), https://reason.com/volokh/2021/10/29/supreme-court-agrees-to-hear-case-challenging-epa-authority-to-regulate-greenhouse-gases/ [https://perma.cc/ZW8U-FMFT] (discussing grant of certiorari in West Virginia v. EPA).
  117. Petition for Writ of Certiorari at i, West Virginia v. EPA, No. 20-1530 (Apr. 29, 2021), 2020 WL 9439135, at *i.
  118. Brief for Petitioners at 14, West Virginia v. EPA, No. 20–1530 (Dec. 13, 2021), 2021 WL 5982772, at *14.
  119. Id. at 44.
  120. Id. at 46.
  121. Id. at 15 (quoting City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting)).
  122. Id. at 43 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863 (1984), as a Clean Air Act case only).
  123. Brief for Petitioner the North American Coal Corporation at 15, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Dec. 13, 2021), 2021 WL 5982771, at *15.
  124. See Brief for the Federal Respondents at 13–14, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 18, 2022), 2022 WL 216161, at 13–14; Brief of Non-Governmental Organization & Trade Association Respondents at 42–49, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 18, 2022), 2022 WL 209765, at *42–49 (denying the applicability of major questions without challenging its existence).
  125. At least one amicus does question it, however. See Brief of Amicus Curiae Richard L. Revesz at 5–21, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 25, 2022) (criticizing quality of economic analysis in major questions cases and arguing that “public salience” is not a workable threshold factor).
  126. Brief of Non-Governmental Organization & Trade Association Respondents, supra note 123, at 23–32.
  127. Jonathan Adler, Standing in West Virginia v. EPA Revisited, Reason: The Volokh Conspiracy (Feb. 21, 2022), https://reason.com/volokh/2022/02/21/standing-in-west-virginia-v-epa-revisited/ [https://perma.cc/8TKC-WD98] (arguing that the Court should consider dismissing the case on standing grounds).
  128. See Transcript of Oral Argument, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Feb. 28, 2022), 2022 WL 606593.
  129. See Metzger, supra note 1, at 2–6.
  130. See, e.g., The Vaccine Case, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring); see also Michigan v. EPA, 576 U.S. 743, 763 (2015) (Thomas, J., concurring) (suggesting constitutional issues with deference to agencies); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (indicating agency deference permits executive agencies to unconstitutionally exercise legislative and judicial power).
  131. See Richardson, Deference is Dead, supra note 2, at 502–05.
  132. Id. at 494–502.
  133. Gundy v. United States, 139 S. Ct. 2116, 2138–41 (2019) (Gorsuch, J., dissenting).
  134. See Richardson, Keeping Big Cases, supra note 13, at 390–409 (comprehensively detailing scholarly arguments regarding the major questions doctrine, most of them critical). See Emerson, supra note 30, at 2041–42 (critiquing the doctrine on the grounds that it is antidemocratic).
  135. Emerson, supra note 30, at 2031–32.
  136. See Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 293–300 (2021).
  137. See Richardson, Deference is Dead, supra note 2, at 446–52.
  138. Id. at 452–74.
  139. King v. Burwell, 576 U.S. 473 (2015), is the best illustration.
  140. See 5 U.S.C. § 706. See also Blake Emerson, “Policy” in the Administrative Procedure Act: Implications for Delegation, Deference, and Democracy, Chi.-Kent L. Rev. (forthcoming 2022) at 26–31, https://papers.ssrn.com/sol3/papers.cfm?abstr​act_id=4043899, [https://perma​.cc/697K-S8GT] (arguing that the major questions doctrine and robust nondelegation enforcement by courts are inconsistent with the APA).
  141. See Richardson, Keeping Big Cases, supra note 13, at 390–92; see also Richardson, Deference is Dead, supra note 2, at 470–72 (noting major questions has increased unpredictability surrounding Chevron’s proper scope).
  142. See Richardson, Keeping Big Cases, supra note 13, at 405.
  143. Id. at 409–27.
  144. One might suspect that severing major cases from Chevron entirely, as the canon does, protects it even better. But even if that were true in theory, it is irrelevant in practice given the sharp decline in Chevron’s relevance at the Court. There’s just nothing to protect anymore.
  145. I have earlier suggested, tentatively, that major questions cases arise when four factors are present: a major shift in regulatory scope, economic significance, political controversy, and thin (i.e., brief) statutory basis. See Richardson, Keeping Big Cases, supra note 13, at 381–85. The last of these factors is probably better understood as part of the subsequent inquiry into whether the clear statement rule is satisfied.
  146. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000); id. at 186–89 (Breyer, J., dissenting).
  147. Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010). More colorfully, they note that “we cannot easily know that what we find in the mousehole is truly an elephant—and not just a rather plump mouse.”
  148. Cass R. Sunstein, Beyond Marbury: The Executive’s Power to Say What the Law Is, 115 Yale L.J. 2580, 2607 (2006).
  149. U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 423 (2017) (en banc) (Kavanaugh, J., dissenting).
  150. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021).
  151. The Vaccine Case, 142 S. Ct. 661, 665 (2022).
  152. Id.
  153. Brief of Amicus Curiae Richard L. Revesz, supra note 124, at 10–11.
  154. Id. at 20–21.
  155. Id. at 5 (citing Rucho v. Common Cause, 139 S. Ct. 2484, 2500 (2019)).
  156. Transcript of Oral Argument, West Virginia v. EPA, supra note 127, at 28–29.
  157. See generally William Eskridge, Jr., & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 596–97 (1992) (documenting over a dozen substantive canons and clear statement rules).
  158. See Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 829–30 (2017) (identifying only a small group of canons that do “meaningful work on the modern Court”).
  159. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 942–47 (2013); see also John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L Rev. 1, 125 (2001) (citing Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 581 (1990)) (“[O]nce rules of construction ‘have been long indulged…the legislature presumably has them in mind when it chooses its language.’”).
  160. Gluck & Bressman, supra note 158, at 945 (finding little awareness of clear statement canons by congressional staff).
  161. Consider, for example, the statutory interpretation issue in King v. Burwell, 576 U.S. 473 (2015), which arose from poor drafting, rather than any attempt to leave a gap for agencies to fill.
  162. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 405 (2017) (Brown, J., dissenting) (“[T]he clear statement rule requires reading the statute, not nodding along with the agency.”).
  163. See Heinzerling, supra note 1, at 1948–50 (describing Utility Air’s disdain for delegations in old statutes as an innovation, and in particular a break with Justice Scalia’s past rulings).
  164. If Congress makes a broad grant of authority that is immediately used, the Court may regard it as legitimate. But a similarly broad grant becomes suspect if not used for a long period. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 144 (2000) (finding FDA lacked authority to regulate tobacco because the agency had repeatedly declined to do so in the past); The Vaccine Case, 142 S. Ct. 661, 666 (2022) (“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind . . . .”). See also Jonathan H. Adler, A “Step Zero” for Delegations 27 (Nov. 23, 2021) (unpublished manuscript), https://ssrn.com/abstract=3686767 [https://perma.cc/T4XJ-MHJK] (arguing that courts should be suspect of agencies using old delegations of authority in a new manner).
  165. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2487, 2489 (2021).
  166. See, e.g., Rodriguez v. United States, 480 U.S. 522, 524 (1987) (“[R]epeals by implication are not favored . . . and will not be found unless an intent to repeal is ‘clear and manifest.’”) (citations omitted); see also, Jesse W. Markham, Jr., The Supreme Court’s New Implied Repeal Doctrine: Expanding Judicial Power to Rewrite Legislation Under the Ballooning Conception of “Plain Repugnancy”, 45 Gonzaga L. Rev. 437, 438 (2009) (“[O]ver hundreds of years, implied partial repeals were strongly disfavored . . . .”).
  167. See, e.g., Brown & Williamson, 529 U.S. at 143.
  168. See Alabama Realtors, 141 S. Ct. at 2490; The Vaccine Case, 142 S. Ct. at 666.
  169. A one-house veto was rejected as unconstitutional in INS v. Chadha, 462 U.S. 919, 959 (1983). As Amit Narang describes, a major questions canon premised on legislative inaction achieves the same result as the never-passed REINS Act, which would have required Congressional approval of major regulations, effectively giving either house a veto. Amit Narang, Twitter (Feb. 14, 2022, 8:00 PM), https://twitter.com/tryptique/status/149331423717​9080719 [https://perma.cc/7966-KSYS?type=image].
  170. Anita Krishnakumar, Some Brief Thoughts on Gorsuch’s Opinion in NFIB v. OSHA, Election L. Blog (Jan. 15, 2022), https://electionlawblog.org/?p=126944 [https://perma.cc/N​3GT-DVPX].
  171. Id.; see also Krishnakumar, supra note 157, at 825 (analyzing Roberts court cases and concluding that substantive canons are “infrequently invoked” and “rarely play an outcome-determinative role” that trumps textual analysis).
  172. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (“Only the written word is the law, and all persons are entitled to its benefit.”).
  173. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, The Tanner Lectures on Human Values 100–03 (March 8–9, 1995), https://tannerlectures.utah.edu/_resources/docume​nts/a-to-z/s/scalia97.pdf, [https://perma.cc/3Q9X-LCTV]; but see Heinzerling, supra note 1, at 1941 (characterizing Scalia as “the Court’s most ardent promoter of interpretive canons in general”).
  174. See, e.g., United States v. Mead Corp., 533 U.S. 218, 245 (2001) (Scalia, J., dissenting).
  175. See Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting) (“[W]e have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”).
  176. Transcript of Oral Argument, supra note 127, at 59–60.
  177. See Richardson, Deference is Dead, supra note 2, at 459–70.
  178. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118–19 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)).
  179. See Eskridge & Frickey, supra note 156, at 597.
  180. See Louisiana v. Biden, No. 2:21-CV-01074, 2022 WL 438313, at *1, 44 (W.D. La. Feb. 11, 2022).
  181. Consider, for example, the liability standard under CERCLA. Early drafts of the bill included language imposing joint and several liability, but this attracted significant opposition. The language was therefore deleted from the final bill and replaced with a reference to the Clean Water Act’s liability standard. Courts nevertheless subsequently interpreted CERCLA generally (but not universally) to impose joint and several liability. See generally United States v. Chem-Dyne Corp., 572 F. Supp 802, 806–08 (S.D. Ohio 1983) (describing the Congressional battle over joint and several liability).
  182. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2255–56 (2001) (“Sometimes Congress legislated [via broad delegations] because it recognized limits to its own knowledge or capacity to respond to changing circumstances; sometimes because it could not reach agreement on specifics, given limited time and diverse interests; and sometimes because it wished to pass on to another body politically difficult decisions.”).
  183. Of course, whether this is bad depends on whether one views legislation as a net positive. In my view, the COVID-19 pandemic and climate change are only the most salient illustrations that it is. But see The Federalist No. 62, at 415–22 (Alexander Hamilton or James Madison) (Jacob Cook ed., 1961) (describing an “excess of law-making” as one of “the diseases to which our governments are most liable”).
  184. See Daniel Walters & Elliot Ash, If We Build It, Will They Legislate? Empirically Testing the Potential of the Nondelegation Doctrine to Curb Congressional “Abdication,” 108 Cornell L. Rev (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=404​5079 [https://perma.cc/YS88-R3ZW] (examining legislative behavior in states with robust nondelegation doctrines and finding only limited change in delegation practices—and some evidence that a strong nondelegation doctrine leads to more implied delegation).
  185. See Emerson, supra note 30, at 2024; see also Sunstein, Chevron Step Zero, supra note 49, at 233 (arguing Congress may prefer agencies over courts to handle major questions); Richardson, Keeping Big Cases, supra note 13, at 404–09 (cataloging structural critiques of the doctrine).
  186. See, e.g., The Vaccine Case, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring); see also Lisa Schultz Bressman, Deference & Democracy, 75 Geo. Wash. L. Rev. 761, 764–65 (2007) (arguing that the major questions doctrine protects against agency overreach).
  187. See, e.g., Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81, 95–96 (1985).
  188. See Emerson, supra note 30, at 2023–24.
  189. See Bressman, supra note 31, at 2009. But see Gluck & Bressman, Statutory Interpretation from the Inside, supra note 158, at 993 (finding a very high awareness of Chevron by congressional staff and that a “desire for agenc[ies] to fill gaps results in ambiguities in legislation”).
  190. David M. Driesen, Major Questions and Juristocracy, The Regulatory Review (Jan. 31, 2022), https://www.theregreview.org/2022/01/31/driesen-major-questions-juristocracy/ [http​s://perma.cc/N7UV-HD43].
  191. See Lessons from The Clean Air Act: Building Durability and Adaptability into U.S. Climate and Energy Policy 1–3 (Ann Carlson & Dallas Burtraw eds., 2019).
  192. See Mashaw, supra note 186, at 98.
  193. See Eskridge & Frickey, supra note 156, at 595–96 (“[U]nlike the linguistic canons or the referential canons, the substantive canons are not policy neutral. They represent value choices by the Court.”).
  194. Lisa Heinzerling (@heinzerlaw), Twitter (Jan. 18, 2022, 11:07 AM), https://twitter.com/​heinzerlaw/sta​tus/1483471214056194068 [https://perma.cc/6XB5-KZFK?type=image].
  195. See, e.g., The Vaccine Case, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring); Paul v. United States, 140 S. Ct. 342 (2019).
  196. See Sunstein, Chevron Step Zero, supra note 49, at 244–45.
  197. See Gundy v. United States, 139 S. Ct. 2116 at 2141 (2019) (Gorsuch, J., dissenting) (“We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.”).
  198. See Randolph May & Andrew Magloughlin, NFIB v. OSHA: A Unified Separation of Powers Doctrine and Chevron’s No Show 1 (Free State Found., Working Paper, 2022), https://papers.ssrn.com/sol3/papers.c​fm?abstract_id=4067799 [https://perma.cc/U8BQ-TX6​C].
  199. See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 111 (2010) (“[T]o the extent a canon is constitutionally inspired, its application does not necessarily conflict with the structural norms that constrain judges from engaging in broad, equitable interpretation.”).
  200. See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474 (2001) (finding that the delegation at issue was readily within the Court’s “intelligible principle” standard); see also Gundy, 139 S. Ct. at 2136–37 (Gorsuch, J., dissenting) (rejecting the “intelligible principle” test, but suggesting it be replaced by a more complex multi-part test).
  201. See Metzger, supra note 1, at 95.

Reevaluating School Policing

School police, often referred to as school resource officers (“SROs”), contribute to a pattern called the school-to-prison pipeline, through which Black and brown children are diverted from classrooms and into the criminal justice system. In schools that employ SROs, SROs disproportionately search and discipline Black and brown students. This leads to SROs preventing these students from accessing the educational opportunities their states have guaranteed them. Despite these racially disparate searches and seizures, many courts have failed to adequately protect students’ Fourth Amendment rights in their interactions with SROs. This Essay addresses how to ensure that all students receive full Fourth Amendment rights in school police interactions. In doing so, this Essay responds to Black Lives Matter protests, which emphasized that entrenched racial biases pervade American policing. This Essay builds on existing literature to propose a student-conscious framework for considering the constitutionality of any law enforcement officer’s involvement with a student in a school-based search or seizure. By “student-conscious,” this Essay means an approach that focuses on the young person’s status as both a child and a student who is statutorily guaranteed access to education by the state.

Introduction

Soon after a police officer killed George Floyd, an unarmed Black man, in Minneapolis in May 2020, Minneapolis Public Schools severed its decades-long relationship with the city’s police department.1.Ryan Faircloth, Minneapolis Public Schools Terminates Contract with Police Department over George Floyd’s Death, StarTribune (June 2, 2020, 9:38 PM), https://www.startribune.co​m/mpls-school-board-ends-contract-with-police-for-school-resource-officers/570967942/ [ht​tps://perma.cc/9C7G-TWD2].Show More Other large school districts soon followed suit by cutting ties with school police regimes.2.E.g., Dana Goldstein, Do Police Officers Make Schools Safer or More Dangerous?, N.Y. Times (Oct. 28, 2021), https://www.nytimes.com/2020/06/12/us/schools-police-resource-officers.html [https://perma.cc/54U4-V4LJ].Show More In doing so, these districts sought to end school police officers’ negative effects on students, particularly students of color—responding to Black Lives Matter (“BLM”) protests, which emphasized entrenched racial biases that pervade American policing.3.E.g., Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020), https://time.com/magazine/us/5847952/june-15th-2020-vol-195-no-22-u-s/ [https://perma.cc/RT4B-FLJ9].Show More However, many schools have continued to station officers, often called school resource officers (“SROs”), on their campuses due to unsubstantiated school safety justifications.4.E.g., Kim Bellware, Chicago School Board Votes to Keep $33M Police Contract – But Student Activists Say the Fight Isn’t Over, Wash. Post. (June 25, 2020), https://www.washi​ngtonpost.com/education/2020/06/25/chicago-school-police/ [https://perma.cc/BT7V-85C3]; infra Part I.Show More In schools employing SROs, SROs disproportionately search and discipline Black and brown students.5.E.g., Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. 2013, 2043–45 (2019).Show More

Though the Fourth Amendment is meant to protect individuals from unreasonable searches and seizures, violations of students’ Fourth Amendment rights persist in school contexts.6.E.g., Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 204–05 (2016).Show More Such persistence is two-pronged. First, although students receive certain constitutionally-rooted rights with law enforcement officers outside of school contexts—such as the right not to be searched without a warrant and probable cause unless an exception applies—courts have commonly limited these rights in relation to school officials.7.E.g., New Jersey v. T.L.O., 469 U.S. 325, 340–43 (1985) (plurality opinion); see also Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987, 1006 (2014) (pointing out that, in some contexts, an all-things-considered “general reasonableness” approach may allow for consideration of interests beyond just quantitative measures of legal guilt such as “probable cause”).Show More Courts have often treated SROs as school officials, rather than traditional law enforcement officers, despite strong opposition to this approach.8.Infra Section II.A.Show More They therein apply a reduced Fourth Amendment search standard—which the Court created for teachers and school administrators interacting with students—to officers.9.Infra Sections II.A, III.A.Show More Second, in considering the reasonableness of a search or seizure, courts balance an individual’s interests against the government’s interests.10 10.E.g., T.L.O., 469 U.S. at 337 (plurality opinion).Show More When doing so, courts have repeatedly failed to recognize and weigh individual interests specific to schoolchildren11 11.Infra Section II.B.Show More—such as a child’s interest in accessing educational benefits.12 12.E.g., Goss v. Lopez, 419 U.S. 565, 576 (1975). But cf. Bowers, supra note 7 (arguing that consideration of probable cause should supplement, rather than replace, other relevant considerations).Show More

This Essay proposes a student-conscious model for considering the constitutionality of any law enforcement officer’s involvement with a student in a school-based search or seizure.13 13.This Essay considers only federal law. Additionally, officer qualified immunity in a school context is outside this Essay’s scope.Show More It builds on other scholars’ work discussing the need for the Court to clarify how a Fourth Amendment reasonableness standard should be understood in school contexts.14 14.E.g., Alexis Karteron, Arrested Development: Rethinking Fourth Amendment Standards for Seizures and Uses of Force in Schools, 18 Nev. L.J. 863, 905–17 (2018); Jason E. Yearout, Individualized School Searches and the Fourth Amendment: What’s a School District to Do?, 10 Wm. & Mary Bill Rts. J. 489, 522–23 (2002).Show More This Essay introduces students’ educational interests and socio-emotional wellbeing as explicit factors in determining whether a school-based seizure passes constitutional muster. By “student-conscious,” this Essay means an approach focused on a young person’s status as both a (1) child and (2) student to whom the state statutorily guarantees access to education.15 15.E.g., Goss, 419 U.S. at 576. The student-conscious model considers only K–12 students, as only K–12 education is guaranteed in all states. Emily Parker, 50 State Review: Constitutional Obligations for Public Education, Educ. Comm’n of the States 1–2 (Mar. 2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-educati​on-1.pdf [https://perma.cc/CUR7-4HJR].Show More There is little opportunity for success in disparate impact claims related to school policing’s disproportionate effect on children of color.16 16.Infra Part II; Jason P. Nance, Implicit Racial Bias and Students’ Fourth Amendment Rights, 94 Ind. L.J. 47, 93–94 (2019).Show More Yet, a student-conscious model for students’ Fourth Amendment rights could overcome disparate impact litigation’s limitations by supporting all children interacting with police officers at school—therein implicitly working against SROs’ disproportionate effects on Black and brown students.17 17.Cf. Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129 (2017) (arguing for Fourth Amendment doctrines that would do more to accommodate the particular perspectives of specific individuals and groups).Show More

This Essay proceeds in three parts. Part I addresses how school policing hinders children’s educational interests, particularly by contributing to educational inequality for Black and brown students. Part II synthesizes the law surrounding (1) student and government interests in educational benefits and (2) students’ reduced Fourth Amendment rights in school contexts. Part III presents a student-conscious model for interpreting children’s Fourth Amendment rights with law enforcement officers at school.

I. SROs and Racial Inequality

Despite the surge in SROs following high-profile school shootings, the notion that SROs increase school safety remains unsubstantiated and heavily contested. Interest in federal SRO funding has increased after each high-profile school shooting since the Columbine massacre.18 18.Jack Denton, When Schools Increase Police Presence, Minority Students Are Harmed Disproportionately, Pacific Standard (Feb. 15, 2019), https://psmag.com/education/after-parkland-schools-upped-police-presence-has-it-made-students-safer [https://perma.cc/2LU3-BMGJ].Show More State laws have also explicitly encouraged more SRO involvement in schools following school shootings.19 19.For example, following Parkland’s shooting, Florida legislated schools must always have a “safe-school officer” present. Fla. Stat. § 1006.12 (2019).Show More Due to high-profile school shootings, school officials today are more concerned about shootings occurring at their institutions.20 20.See Nat’l Inst. of Just., School Safety: By the Numbers (Nov. 2017), https://www.ncjrs.go​v/pdffiles1/nij/251173.pdf [https://perma.cc/A6V7-25LZ].Show More Yet, (1) mass shootings in schools are rare,21 21.Id.; Ashley Fetters, The Developing Norms for Reopening Schools After Shootings, Atlantic (Aug. 27, 2018), https://www.theatlantic.com/education/archive/2018/08/how-schools-decide​-when-to-reopen-after-a-shooting/568666/ [https://perma.cc/A9QG-SC4Q].Show More (2) school crime rates and student fear of crimes have decreased since the early 1990s,22 22.Nat’l Inst. of Just., supra note 20; Philip J. Cook, Denise C. Gottfredson, and Chongmin Na, School Crime Control and Prevention, 39 Crime & Just. 313, 316 (2010).Show More and (3) increasing investments in SROs does not necessarily lead to safer schools.23 23.Kenneth Alonzo Anderson, Does More Policing Make Middle Schools Safer?, Brookings Inst. (Nov. 8, 2018), https://www.brookings.edu/blog/brown-center-chalkboard/2018/11/08/d​oes-more-policing-make-middle-schools-safer/ [https://perma.cc/8Y97-49S4].Show More Despite SROs’ questionable school safety benefits, schools have hired more SROs over time, and SRO supporters argue there would be additional school shootings without SRO presence.24 24.Compare Anya Kamenetz, Why There’s a Push to Get Police Out of Schools, NPR (June 23, 2020, 7:00 AM), https://www.npr.org/2020/06/23/881608999/why-theres-a-push-to-get-police-out-of-schools [https://perma.cc/2JQP-SN4B] (describing an argument SROs stop shootings before they happen), with Eli Saslow, ‘It Was my Job, and I Didn’t Find Him’: Stoneman Douglas Resource Officer Remains Haunted by Massacre, Wash. Post (June 4, 2018), https://www.washi​ngtonpost.com/national/it-was-my-job-and-i-didnt-find-him-stone​man-douglas-resource-offi​cer-remains-haunted-by-massacre/2018/06/04/796f1c16-679d-11​e8-9e38-24e693b38637_sto​ry.html [https://perma.cc/H3Z9-82P9] (describing an account by an SRO who failed to stop the Marjory Stoneman shooting).Show More

We may not conclusively know if SROs increase school safety, but we know SROs negatively impact students.25 25.Compare, e.g., Emily G. Owens, Testing the School-to-Prison Pipeline, 36 J. Pol’y Analysis & Mgmt. 11, 34 (2016) (describing how SRO presence increases school safety), with Aaron Kupchik, Research on the Impact of School Policing, ACLU Penn. 1 n.3 (Aug. 2020), https://www.endzerotolerance.org/impact-of-school-policing [https://perma.cc/X3VF-7HGZ] (listing studies indicating SROs either do not impact student crime or SRO presence is associated with increased student misconduct). Inconclusive data may be due to SROs filling a solely law enforcement role in some schools while serving in mentorship capacities in others. See Kupchik, supra, at 1.Show More Evidence indicates SROs’ use of zero-tolerance policies has pushed students from classrooms and into the juvenile justice system.26 26.See, e.g., Emily M. Homer & Benjamin W. Fisher, Police in Schools and Student Arrest Rates Across the United States: Examining Differences by Race, Ethnicity, and Gender, 19 J. Sch. Violence 192, 192 (2020).Show More School discipline zero-tolerance policies require that schools apply predetermined consequences to students based on their disciplinary violations.27 27.Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 933 (2016) [hereinafter Nance, Students, Police].Show More These consequences are typically severe and punitive, and they do not consider situational context, mitigating circumstances, or the gravity of the behavior at issue.28 28.Id.Show More Data regarding SROs’ effects on schools largely signal that SRO presence increases the probability of arrest and court referral for low-level offenses.29 29.E.g., Deanna N. Devlin & Denise C. Gottfredson, The Roles of Police Officers in Schools: Effects on the Recording and Reporting of Crime, 16 Youth Violence & Juv. Just. 208, 217 (2016).Show More As SRO prevalence increased nationally, disciplinary violations conventionally managed by school administrators and teachers became more likely to be handled through law enforcement interventions.30 30.Matthew T. Theriot & Matthew J. Cuellar, School Resource Officers and Students’ Rights, 19 Contemp. Just. Rev. 363, 369 (2016).Show More Accordingly, a hallway tussle is deemed assault and class disruptions become disorderly conduct: behavior posing no real threat to school safety causes students to be taken from classrooms for delinquent and criminal prosecution.31 31.Id.Show More

Such law enforcement interventions negatively affect a young person’s education. Removing students from classrooms for disciplinary purposes, whether due to a school-based search or otherwise, causes students to miss educational opportunities, face stigma from peers and instructors, experience greater surveillance, and have a higher likelihood of leaving school before graduating.32 32.Id. at 369–70.Show More Use of force against a student at school in a disciplinary context can be particularly traumatic, adversely affecting the student’s socio-emotional growth and educational success.33 33.Richard G. Dudley, Jr., Childhood Trauma and Its Effects: Implications for Police, New Perspectives Policing, July 2015, at 1, 5 (trauma can “rewire [children’s] brains,” impacting their future encounters with law enforcement).Show More Overall, punishing students by pushing them out of the classroom increases their likelihood of future incarceration, and there is no evidence that handling school-based discipline through zero-tolerance policies reduces school disciplinary violations.34 34.Nancy Heitzeg, The School-to-Prison Pipeline: Education, Discipline, and Racialized Double Standards 102 (2016).Show More Studies have shown non-punitive disciplinary practices—which focus on helping students continue their education after disciplinary violations35 35.See, e.g., Erin R. Archerd, Restoring Justice in Schools, 85 U. Cin. L. Rev. 761, 794–95 (2017) (explaining restorative justice as an example of a discipline practice that helps students work towards improved behavior); Nance, Students, Police, supra note 27, at 981.Show More—improve a school’s climate by reducing violent acts, suspensions, and office referrals.36 36.Jason P. Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, 48 Ariz. St. L.J. 313, 356–57, 360 (2016).Show More Nevertheless, harsh disciplinary practices now permeate schools serving middle-class and low-income students.37 37.See, e.g., Aaron Kupchik, Things Are Tough All Over: Race, Ethnicity, Class and School Discipline, 11 Punishment & Soc’y 291, 292 (2009).Show More

Black and brown children bear the brunt of these negative educational effects. SRO biases and strict school security measures disproportionately affect Black and brown students.38 38.See Charles Ogletree, Robert J. Smith, and Johanna Wald, Coloring Punishment: Implicit Social Cognition and Criminal Justice, in Implicit Racial Bias Across the Law 54 (Justin D. Levinson & Robert J. Smith eds., 2012).Show More Students of color do not commit more disciplinable school offenses than their white peers, either by individual racial group or collectively.39 39.U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 161 (July 2019), https://www.usccr.gov/pubs/2019/07-23-Beyond-Suspensions.pdf [https://perma.cc/H​7W3-E8LH] [hereinafter Beyond Suspensions].Show More Yet, Hispanic and Black students comprise almost three-quarters of students arrested due to an incident at school or referred by schools to the police.40 40.Archerd, supra note 35, at 773. For comparison, in fall 2018, 15% of public-school students were Black and 27% were Hispanic. Racial/Ethnic Enrollment in Public Schools, Nat’l Ctr. for Educ. Stat. (May 2021), https://nces.ed.gov/programs/coe/indicator_cge.asp [https://perma.cc/9FV2-CQGD].Show More Most of these school-based arrests are for nonviolent offenses.41 41.Beyond Suspensions, supra note 39, at 42, 45 n.244, 53.Show More

These negative educational effects stemming from SROs prevent the government from achieving its well-documented interest in ensuring all children have access to education.42 42.See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.”); Goss v. Lopez, 419 U.S. 565, 576 (1975) (“Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses . . . .”); Plyler v. Doe, 457 U.S. 202, 214 (1982) (holding everyone within a state’s boundaries has educational rights).Show More While there is no federally recognized right to education,43 43.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).Show More the Court has held that, when a government does provide students with a basic education, it must provide that right equally.44 44.See sources cited supra note 42; see also Eric Merriam, Obergefell and the Dignitary Harm of Identity-Based Military Service and Exclusion, 27 UCLA Women’s L.J. 41, 67 (2020) (“[A]n equal protection right to basic education . . . requires that when the government does provide it, it be provided equally.”).Show More In a Fourth Amendment context, the Court has described that a government’s interest in school discipline rests on promoting school order—a prerequisite for ensuring all children have the opportunity to learn.45 45.E.g., New Jersey v. T.L.O., 469 U.S. 325, 339–40 (1985) (plurality opinion).Show More Some Justices have also emphasized that the government interest rests on protecting students’ safety, which itself is key for students to have a positive learning environment.46 46.E.g., id. at 353 (Blackmun, J., concurring); id. at 357 (Brennan, J., concurring).Show More However, if SROs discipline students in a manner that pushes them from classrooms without directly contributing to other students’ safety and positive learning environment, such action opposes the government’s interest in ensuring equal educational access.47 47.The disparate rate at which SROs discipline students of color hinders the government from achieving its interest in creating integrated school environments. E.g., Brown, 347 U.S. at 493 (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”).Show More

II. Gaps in Protecting Students’ Rights in School Searches and Seizures

Current federal law largely allows police officers to disparately impact students of color.48 48.Since 2001, only regulatory agencies and the Department of Justice (“DOJ”) can enforce disparate impact claims under Title VI. Alexander v. Sandoval, 532 U.S. 275, 284–85 (2001) (private litigants cannot bring disparate impact suits); 34 C.F.R. § 100.8(a) (2021) (allowing regulatory agencies and the DOJ to enforce disparate impact claims). The DOJ can engage in disparate impact suits, and the Department of Education (“ED”) can investigate complaints and review schools’ compliance with the ED’s Office for Civil Rights’s (“OCR”) guidelines, consequently revoking federal funds pursuant to Title VI as necessary. Office for Civil Rights, U.S. Dep’t of Educ., Case Processing Manual (CPM) 23 (2020), https://www2.ed.gov/ab​out/offices/list/ocr/docs/ocrcpm.pdf [https://perma.cc/K4YP-HFU2]; 42 U.S.C. § 2000d-1.Show More Schoolchildren of color thus need more remedial avenues when they experience disproportionate disciplinary discrimination. Though the Department of Education and Department of Justice can pursue disparate impact cases, policies associated with different political administrations can strengthen or weaken the departments’ civil rights enforcement capacities.49 49.E.g., Catherine E. Lhamon & Jocelyn Samuels, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline 4, 7 (Jan. 8, 2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf [https://perma.cc/9SPS-H26B] (rescinded by Kenneth L. Marcus & Eric S. Dreiband, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter (Dec. 21, 2018), https://ww​w2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf [https://perma.cc/MXX7-V2B​3]); Office for Civil Rights, U.S. Dep’t of Educ., Questions & Answers on Racial Discrimination and School Discipline 2 n.6 (2018), https://www2.ed.gov/about/offices/lis​t/ocr/docs/qa-title-vi-201812.pdf [https://perma.cc/9Z8A-QV35].Show More To protect students from disparate negative educational opportunities, civil rights advocates must not rely on government entities’ intervention. Such efforts could end when, for example, a presidential administration transition occurs.50 50.Supra note 49 and surrounding text.Show More Instead, litigants must consider new avenues for protecting students’ constitutional rights in student-SRO interactions long-term.

A. Educational Interests and the Fourth Amendment

When considering Fourth Amendment standards surrounding school searches, the Court has discussed the importance of the government’s interest in ensuring students receive an education. Before SRO prevalence in American public schools, the Court attempted to support students’ educational interests by preserving the “informality of the student-teacher relationship”—through limiting students’ traditional Fourth Amendment protections in relation to “school officials.”51 51.T.L.O., 469 U.S. at 340 (plurality opinion).Show More In New Jersey v. T.L.O., the Court abandoned traditional probable cause and warrant requirements for “school officials” conducting searches of students on school grounds.52 52.Id. at 340–41.Show More In place of the traditional requirements, the Court put forward an approach balancing “the individual [student]’s legitimate expectations of privacy and personal security; [and] the government’s need for effective methods to deal with breaches of public order.”53 53.Id. at 337.Show More

T.L.O. considered educational interests only in terms of the government’s interest in promoting education for most students, failing to also consider the educational interests of an individual child searched by school officials. The Court concluded schoolchildren in public schools have legitimate expectations of privacy that could be violated by searching their personal property.54 54.Id. at 337–38.Show More The Court also recognized teachers and administrators have a “substantial interest . . . in maintaining discipline in the classroom and on school grounds.”55 55.Id. at 339.Show More Thus, the Court sought to weigh the individual privacy interest of a searched student against a “school’s equally legitimate need to maintain an environment in which learning can take place.”56 56.Id. at 340.Show More

To balance a “schoolchild’s legitimate expectations of privacy” against the school’s overall interest in ensuring students can access education, the T.L.O. plurality ruled that school officials could search students based on “the reasonableness, under all the circumstances, of the search.” 57 57.Id. at 340–41; see generally Silas J. Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 Am. Crim. L. Rev. 119 (1989) (describing “general reasonableness” as understood by this Essay).Show More The plurality concluded that, ordinarily, when “a teacher or other school official” searches a student, as long as there are “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school,” the search is “justified at its inception.”58 58.T.L.O., 469 U.S. at 341–42 (citation omitted).Show More A search by a teacher or other school official will be considered “reasonably related” to the circumstances initially causing the search as long as “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”59 59.Id. at 342 (citation omitted). This theoretically provides more protection than a probable cause, or quantum of guilt, standard in conventional crime-solving contexts. See, e.g., Bowers, supra note 7, at 1021–22. However, as this Essay further explores, this standard has been treated as “amorphous.” See, e.g., T.L.O., 469 U.S. at 367 (Brennan, J., concurring) (describing the new standard as “ambiguous,” potentially “leav[ing] teachers and administrators uncertain as to their authority and . . . encourag[ing] excessive fact-based litigation.”); Barry C. Feld, T.L.O. and Redding’s Unanswered (Misanswered) Fourth Amendment Questions: Few Rights and Fewer Remedies, 80 Miss. L.J. 847, 848–49 (2011) (presenting T.L.O.’s reasonableness standard as “amorphous”).Show More

The Court did not intend T.L.O.’s reasonableness standard to extend to students’ Fourth Amendment rights in relation to law enforcement officers. The plurality emphatically rooted the T.L.O. holding in the relationship between educators and students, recognizing “a certain degree of flexibility in school disciplinary procedures” and “the value of preserving the informality of the student-teacher relationship.”60 60.469 U.S. at 340 (plurality opinion).Show More In their concurrences, Justices Powell and Blackmun differentiated between searches by traditional school officials—such as teachers and administrators—and searches by police.61 61.Id. at 351–53 (Blackmun, J., concurring); id. at 349–50 (Powell, J., concurring). Justice Powell emphasized that the flexible Fourth Amendment standard described by the T.L.O. plurality stemmed from a close relationship between teachers and students, which differs from students’ relationship with “[l]aw enforcement officers[, who] function as adversaries of criminal suspects.” Id. at 349 (Powell, J., concurring); see also id. at 351 (Blackmun, J., concurring) (emphasizing searches, such as the school official-led search at hand, could evade Fourth Amendment warrant and probable cause requirements, “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable”).Show More However, the T.L.O. Court declined to address the role of school searches “in conjunction with or at the behest of law enforcement agencies.”62 62.Id. at 341 n.7; see also Gupta-Kagan, supra note 5, at 2022 (“T.L.O.’s rationale set up an important question: Are searches by school resources officers, or searches by school officials at the behest of or in conjunction with SROs, governed by T.L.O.?”).Show More

Since T.L.O., the Court has belabored that students’ limited Fourth Amendment rights in school search contexts depend on whether a search, or its effects, involves law enforcement participation.63 63.See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 833 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995); Gupta-Kagan, supra note 5, at 2023.Show More Board of Education v. Earls and Vernonia School District 47J v. Acton, cases considering whether schools could require students to submit a urinalysis drug test to participate in extracurricular activities, held the urinalysis drug test requirements did not violate the Fourth Amendment.64 64.Earls, 536 U.S. at 837–38; Acton, 515 U.S. at 663–65.Show More In both cases, the Court emphasized law enforcement would not obtain the drug test results, so students would not face delinquency or criminal charges.65 65.Earls, 536 U.S. at 833; Acton, 515 U.S. at 658.Show More Students would miss non-scholastic opportunities66 66.Earls, 536 U.S. at 833–34.Show More—but their states’ statutorily guaranteed educational benefits would not be disrupted.67 67.Goss v. Lopez, 419 U.S. 565, 576 (1975) (“But, ‘education is perhaps the most important function of state and local governments,’ and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child.”) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).Show More

Judicial precedent also supports that searches by school officials still require traditional warrant and probable cause standards when the search is “extensive[ly] entangle[d]” with law enforcement.68 68.Ferguson v. City of Charleston, 532 U.S. 67, 83 n.20 (2001); see also Developments in the Law — Policing, 128 Harv. L. Rev. 1706, 1762 (2015) (“[T]he identity of who uses the result of a search does bear on the seriousness of the privacy intrusion.”).Show More Reduced Fourth Amendment standards are only permitted when a search fulfills “special needs, beyond the normal need for law enforcement . . . .”69 69.New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).Show More When law enforcement is involved in a search outside of a school context, the Court has held a close analysis is necessary to determine whether a legitimate special need can be distinguished from collecting evidence for law enforcement purposes.70 70.E.g., Ferguson, 532 U.S. at 83 n.20, 84, 88 (Kennedy, J., concurring); see also Josh Gupta-Kagan, Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need to Reform the Fourth Amendment Special Needs Doctrine, 87 Tulane L. Rev. 353, 399–422 (2012) [hereinafter Gupta-Kagan, Beyond Law Enforcement] (theorizing how to improve the special needs test to best serve children, based on empirical evidence).Show More Yet, many state and federal courts have still extended the T.L.O. standard to SROs, therein limiting students’ Fourth Amendment rights in school settings.71 71.A.M. v. Holmes, 830 F.3d 1123, 1157–61 (10th Cir. 2016) (applying T.L.O. analysis to an SRO as well as a school principal and assistant principal); Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1304–06 (11th Cir. 2006) (applying T.L.O. when analyzing an unlawful seizure claim filed against a law enforcement deputy at an elementary school); Shade v. City of Farmington, 309 F.3d 1054, 1060–62 (8th Cir. 2002) (applying T.L.O. to determine the legality of a search law enforcement officers conducted away from school grounds in conjunction with a school teacher and administrator); Gupta-Kagan, supra note 5, at 2024–25 (explaining a majority of state courts have applied T.L.O. to SROs).Show More Further, although T.L.O. only considered students’ Fourth Amendment rights in relation to a school-based search, courts have also applied T.L.O.’s reasonableness standard to school-based seizures.72 72.E.g., Bostic, 458 F.3d at 1304; C.B. v. City of Sonora, 769 F.3d 1005, 1023–28 (invoking T.L.O. without using its two-part analysis for the seizure at issue); Ziegler v. Martin Cnty. Sch. Dist., 831 F.3d 1309, 1322–24 (11th Cir. 2016); Wofford v. Evans, 390 F.3d 318, 326–27 (4th Cir. 2004); Doe ex rel. Doe v. Hawaii Dep’t. of Educ., 334 F.3d 906, 909–10 (9th Cir. 2003).Show More

B. Reasonableness and School-Based Seizures

Without clarification regarding how to understand reasonableness in an SRO-led school-based search or seizure of a student, some circuits have ignored students’ educational interests. For example, in the Sixth Circuit, in a case in which a seventh-grader was handcuffed after being involved in two school fights, the court described the need to determine if an officer’s actions were “objectively reasonable.”73 73.Neague v. Cynkar, 258 F.3d 504, 505–07 (6th Cir. 2001).Show More The court overlooked the way an experience such as handcuffing could be more traumatic for a student than an adult, based on his age, and how the incident could hinder his future educational opportunities.74 74.Infra Section III.A; see also Bowers, supra note 17, at 198 (arguing that in Fourth Amendment cases judges should do more to accommodate the perspective of the layperson).Show More

Special needs searches such as those T.L.O. anticipates fall under the “objective reasonableness” umbrella—an umbrella that also includes excessive force.75 75.Graham v. Connor, 490 U.S. 386, 396 (1989); supra note 71 (listing relevant cases). Deadly force is outside the scope of this Essay, as it is uncommon in school policing. For a discussion of deadly force, see, e.g., Scott A. Harman-Heath, Renaming Deadly Force, 106 Cornell L. Rev. 1689, 1690–713 (2021).Show More Courts adapt the objective reasonableness standard to weigh school-specific reasonableness factors when considering a students’ Fourth Amendment rights.76 76.E.g., Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *7 (M.D. Tenn. Dec. 17, 2014) (“[T]he Court must first consider the factors uniquely relevant to this case as required by Graham, namely the very young age of T.H. and the fact that this incident took place in a school setting.”); E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018) (“Here, we believe it prudent to consider also the suspect’s age and the school context.”); Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (“His age and size are certainly factors in the totality-of-the-circumstances reasonableness calculation. . . . However, these factors alone do not render force used against him unreasonable per se.”).Show More This reasonableness standard necessitates “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing government interests at stake.”77 77.Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); United States v. Place, 462 U.S. 696, 703 (1983)); Scott v. Harris, 550 U.S. 372, 383 (2007); see also Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1127, 1136–38 (2008) (discussing how the Scott Court undermined Graham and Garner, therein “reduc[ing] the Fourth Amendment regulation of reasonable force to its vaguest form . . . .”).Show More The Court has held that determination regarding whether a law enforcement officer’s actions are “objectively reasonable” cannot consider an officer’s “underlying intent or motivation.”78 78.Graham, 490 U.S. at 397 (citations omitted).Show More This effectively forecloses any argument that a seizure is unreasonable based on an officer’s implicit biases.79 79.See, e.g., Charles Ogletree et al., supra note 38, at 54 (discussing that implicit biases often affect decisions made by school administrators and school resource officers).Show More Further, the Court has emphasized the Fourth Amendment reasonableness test “is not capable of precise definition or mechanical application”80 80.Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).Show More and therefore “requires careful attention to the facts and circumstances of each particular case.”81 81.Id. But see Harmon, supra note 77, at 1127, 1130 (explaining the Graham reasonableness standard allows juries to decide use of force cases based on “their intuitions”). The Eighth Circuit has noted sister circuits’ lack of clarity regarding whether to apply the T.L.O. or Graham reasonableness standard when considering a student seizure involving law enforcement officers on school grounds. K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 822 (8th Cir. 2019).Show More Lower courts, in applying the Fourth Amendment objective reasonableness standard to children, thus must fully consider the specific facts and circumstances inherent to childhood and students’ educational interests, as Part III discusses.

Courts have commonly ignored students’ status as children when determining if a school-based search or seizure is reasonable. For example, the Tenth Circuit has treated a nine-year-old more like an adult than a child when determining an SRO acted reasonably by using a twist-lock to “command [the child’s] compliance.”82 82.Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (10th Cir. 2014).Show More After the SRO grabbed a sixty-seven-pound nine-year-old who was sitting quietly in a hallway, the child responded by grabbing the SRO’s arm.83 83.Id.Show More The court emphasized that “[a]n arrestee’s age and small demeanor do not necessarily undermine an officer’s concern for safety and need to control the situation.”84 84.Id.; see also C.B. v. Sonora, 769 F.3d 1005, 1030 (9th Cir. 2014) (describing the child’s small size as factoring against the reasonableness of his seizure).Show More The court thus unrealistically determined a reasonable officer could view a small child grabbing her arm as “an act of violent resistance” and a safety concern.85 85.Hawker, 591 F. App’x at 675.Show More

Fortunately, some circuits have taken an explicitly child-conscious approach when considering reasonableness of an SRO’s seizure of a student, though not an explicitly student-conscious approach. That is, unsurprisingly, as common sense and the Court counsel,86 86.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (considering age when determining reasonableness in a Fourth Amendment context).Show More they implicitly consider students’ status as children when determining objective reasonableness—assessing children’s size, lack of maturity, and general nature in assessing the reasonableness of force used against them. For example, the Eleventh Circuit determined that an SRO, in handcuffing a nine-year-old child after escorting her out of gym class because she vaguely threatened her physical education teacher when he told her to do jumping jacks, unreasonably seized her.87 87.Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1300–07 (11th Cir. 2006).Show More Taking a child-conscious approach, the court described, “[T]he handcuffing was excessively intrusive given [the student’s] young age and the fact that it was not done to protect anyone’s safety.”88 88.Id. at 1306.Show More The Fourth Circuit has likewise described youth as an important factor in deciding if handcuffing is an appropriate use of force, emphasizing courts must be mindful of the way criminally punishing young students can have long-lasting effects on children’s future success, therein implying the need to consider students’ educational interests.89 89.E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 180–82, 188 (4th Cir. 2018).Show More Similarly, the Ninth Circuit recognized handcuffing a child was inherently unnecessary, i.e., unreasonable, for achieving the government’s interest in maintaining school order—ruling that other mechanisms should have instead been used to support the child’s own educational interests. 90 90.C.B. v. City of Sonora, 769 F.3d 1005, 1023–24, 1029–30 (9th Cir. 2014).Show More

III. A Student-Conscious Approach to Fourth Amendment Protections at School

Building on legal scholarship and empirical evidence, Part III proposes a student-conscious model for deciding whether a school-based search or seizure of a student by law enforcement officers is constitutional. This model (1) makes explicit how existing Fourth Amendment precedent relates to students, while (2) aiming to protect students—of all racial backgrounds—from negative emotional and educational impacts tied to searches and seizures. In doing so, such a model could particularly benefit students of color disproportionately impacted by school discipline.

A. Adopting a School-Specific Reasonableness Standard for Students

The Supreme Court has ruled that determining “reasonableness under all the circumstances” for a school-based Fourth Amendment search requires balancing an individual child’s interests against governmental interests.91 91.New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985) (plurality opinion); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995).Show More In so ruling, the Court recognized that a student’s interests should only be limited to the extent necessary to accommodate the government’s interests.92 92.T.L.O., 469 U.S. at 341–42; Acton,515 U.S. at 656.Show More Furthermore, the Court has expressed that (1) procedural protections for students’ educational interests and socio-emotional growth are important,93 93.E.g., In re Gault, 387 U.S. 1, 21–27 (1967); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374–79 (2009); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975).Show More (2) age is relevant both in considering how a student interprets a police interaction94 94.E.g., J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).Show More and evaluating Fourth Amendment issues related to schoolchildren,95 95.T.L.O., 469 U.S. at 342; Redding, 557 U.S at 375.Show More and (3) overly-invasive treatment of minors violates Fourth Amendment privacy rights.96 96.Redding, 557 U.S. at 368, 379.Show More

Building on such precedent, this Essay proposes a model by which, when a school-based search or seizure by law enforcement officers occurs, courts consider a student’s educational interests, socio-emotional vulnerability, age, and (in the case of a seizure) stature—in addition to more traditional Fourth Amendment standards such as privacy and security—when balancing an individual child’s interests against government interests.97 97.These factors build on those Professor Alexis Karteron has previously discussed when describing a school-specific reasonableness standard for students. Karteron, supra note 14, at 870 (“[R]easonableness requires consideration of objective factors especially relevant to the school context and unique vulnerabilities of youth including: the seriousness of the alleged infraction or crime; the likelihood that the student has committed an infraction or crime; the age of the student; the size and stature of the student; the likelihood of inflicting harm or trauma, especially in light of known disabilities or vulnerabilities; and the necessity of the enforcement action.”).Show More Thus far, when considering student interests at stake in a school-based search context, the Court has focused on privacy.98 98.T.L.O., 469 U.S. at 338–40; Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); Karteron, supra note 14, at 907 (“In T.L.O. and subsequent cases, all decided in the context of a search conducted by a school official, the Court identified privacy as the only student interest at stake.”).Show More Yet, in a school search context, which has commonly been extended to seizures, the Court recognized the need to consider “reasonableness, under all the circumstances.”99 99.T.L.O., 469 U.S. at 341 (emphasis added); see Bowers, supra note 7, at 1105–07 (arguing that special-needs searches may sometimes be more protective by accommodating considerations that the Court deems irrelevant for crime-solving searches).Show More As cases outside the Fourth Amendment context have emphasized the importance of students’ psychological wellbeing and interests in continuing to receive an education,100 100.E.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (First Amendment Establishment Clause context); Tinker v. Des Moines Indep. Sch. Dist. 393 U.S. 503, 508 (1969) (First Amendment Speech Clause context); J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011) (Fifth Amendment context); Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982) (Eighth Amendment context); Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954) (Fourteenth Amendment Equal Protection Clause context); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975) (Fourteenth Amendment Due Process Clause context).Show More it would be valuable to encompass these interests in a Fourth Amendment reasonableness approach for students.101 101.Other scholars have agreed these broader interests must be encompassed. E.g., Karteron, supra note 14, at 905; Gupta-Kagan, Beyond Law Enforcement, supra note 70, at 411.Show More Doing so would prevent courts from ignoring students’ educational interests and would make explicit some circuits’ implicit consideration of a plaintiff’s student status when determining reasonableness of a search or seizure.102 102.Supra Section II.B.Show More

When balancing an individual’s interest against government interests to determine reasonableness of a search or seizure, courts must weigh whether the search or seizure of one student effectively promotes a safe, orderly educational environment to such an extent that the harm to the plaintiff-child’s education is outweighed by the benefit to other children’s education.103 103.Supra notes 45–47 and accompanying text.Show More In a school-based search, the Court has explained that courts must balance (1) the “serious emotional damage” that could result from a search against (2) the governmental interest in the search, emphasizing that “[t]he indignity of [a] search does not, of course, outlaw it, but it does implicate the rule of reasonableness. . . .”104 104.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375 (2009). For a depiction of the Court taking different views of “dignity” in Fourth Amendment consideration, see Bowers, supra note 7, at 1010–18.Show More Governmental interest encompasses local and state interests in keeping schools safe for the purpose of “maintain[ing] an environment [where] learning can take place.”105 105.New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (plurality opinion).Show More Despite positing this balancing test in a search context, the Court has provided little guidance regarding reasonableness in school-based seizures. This Section thus proceeds to explicate the student-conscious reasonableness model in a seizure context.

The student-conscious reasonableness model this Essay proposes recognizes balancing “serious emotional damage” against the governmental interest in a search as useful under the objective reasonableness balancing test for seizures. It provides a student-specific mode of considering “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests[]’ against the countervailing governmental interests at stake.”106 106.Supra note 77 and surrounding text.Show More This prompts courts to consider whether a government’s interest in creating an orderly educational environment outweighs the emotional and psychological effects a seizure could have on a child.

Courts have approached such balancing inadequately. In the Tenth Circuit, for example, use of excessive force on a child, which the court deemed reasonable, led to the affected child receiving treatment for post-traumatic stress disorder.107 107.Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).Show More The court focused on the government’s interest in creating an orderly educational environment, without considering how its decision hindered the government’s interest in supporting all students’ education.108 108.Supra note 42 and surrounding text.Show More Such selective consideration cannot continue.

In a school seizure by law enforcement officers, the governmental interest in supporting education for most students will seldom outweigh the plaintiff-child’s educational interests. The Court has recognized that only “[s]tudents whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process” may “be immediately removed from school.”109 109.Goss v. Lopez, 419 U.S. 565, 582 (1975).Show More If students do not pose such a continuing danger or threat, the educational harm caused by seizing them outweighs the seizure’s benefit to the overall student body. After all, empirical evidence indicates SRO involvement in school discipline creates a negative educational environment for all students, even those not disciplined by an SRO.110 110.Supra Part I.Show More

Further, potential student body benefits seldom outweigh the socio-emotional harm a seizure causes a child. In a search context, the Court has emphasized “adolescent vulnerability intensifies” a search’s “intrusiveness,”111 111.Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 375 (2009).Show More and research indicates the same is true in seizures.112 112.Infra note 116 and surrounding text.Show More To ascertain the socio-emotional effects of a seizure on a student, courts must consider a child’s age and stature to determine the reasonableness of said seizure. The Court has long-recognized children cannot be considered “miniature adults,”113 113.E.g., J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011); Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (“[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.”).Show More and has noted “childhood yields objective conclusions.”114 114.J.D.B., 564 U.S. at 275.Show More One such conclusion is that children cognitively differ from adults, making them more likely both to act out and to experience greater physical and mental harm from being subject to the use of force.115 115.See, e.g., Karteron, supra note 14, at 880.Show More Similarly, empirical evidence supports that, while anyone who is “yanked” physically by a law enforcement officer or handcuffed could be traumatized by such an occurrence, youth have a heightened risk for such trauma.116 116.Id.; Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).Show More

Along with age, considering a child’s stature is key in a school-based seizure. There are typically less restrictive ways for a law enforcement officer to discipline or restrain a child.117 117.Karteron, supra note 14, at 913.Show More Thus, as force should only be used when it is necessary to preserve governmental interests,118 118.E.g., Graham v. Connor, 490 U.S. 386, 395–97 (1989).Show More an officer should not be able to use force when a less restrictive manner of restraint exists.119 119.See, e.g., Hawker, 591 Fed. App’x. at 671.Show More

Strengthening students’ Fourth Amendment protections in school policing contexts by adopting this student-conscious framework aligns with precedent, which has recognized children’s needs for increased procedural protections in school spaces.120 120.Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 Minn. L. Rev. 823, 903–04 (2015).Show More Critics may argue such a framework hinders school safety, therein hampering students’ learning opportunities. However, the Court is well-positioned to deliver guidance emphasizing procedural requirements meant to deter school searches and seizures.121 121.Id.Show More After all, in recent years, the Court has struck down state actors’ aggressive treatment of minors in school spaces, finding strip searching a student for Tylenol is overly invasive122 122.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368–369, 379 (2009).Show More and police interrogations at school must be informed by a student’s age.123 123.J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).Show More

Some critics may argue a student-conscious reasonableness standard could diminish the administrability of existing Fourth Amendment reasonableness standards.124 124.See, e.g., Bowers, supra note 7, at 1016–17; Bowers, supra note 17, at 144.Show More In a Fifth Amendment context, Justice Alito, joined by Justices Scalia and Thomas, alleged that considering a child’s age—and therein departing from a “one-size-fits-all” reasonableness test—would be hard for police to follow and for judges to apply.125 125.J.D.B., 564 U.S. at 293 (Alito, J., dissenting).Show More He specifically posited it would be difficult for a judge to recognize how the “average” child or adolescent experiences a police interaction.126 126.Id. at 294 (Alito, J., dissenting).Show More Further, critics may assert a student-conscious reasonableness standard opens litigation floodgates, prompting vulnerable defendants to always argue a “one-size-fits-all reasonable-person test” must be adapted to account for their individualized characteristics.127 127.J.D.B., 564 U.S. at 283 (Alito, J., dissenting).Show More However, the student-specific nature of the proposed model protects against these critiques.

Courts commonly consider student status and age when determining children’s constitutional rights.128 128.Policy-and-practice arguments are outside the scope of this Essay, but it is worth noting that, though some states require no school-specific training for SROs, e.g., Ala. Code § 16-1-44.1 (2019); Ky. Rev. Stat. Ann. §158.441 (West 2020), many states already train SROs to work with students. E.g., Wash. Rev. Code § 28A.320.124(1)(a) (2021); Cal. Educ. Code § 38000(e) (West 2020); Conn. Gen. Stat. § 17a-22bb (2013); N.M. Stat. Ann. § 29-7-14(B) (2020); Va. Code Ann. § 9.1-102 (2020); see also Ga. Code. Ann. § 35-8-27(b) (training is available but not required). Training SROs in a student-conscious reasonableness model would thus be a low-cost initiative, building on existing training models.Show More Although Justice Alito expressed concern in the Fifth Amendment context that judges may struggle to put themselves in the position of a reasonable child to understand a child-specific age-based standard,129 129.J.D.B., 564 U.S. at 293 (Alito, J., dissenting).Show More judicial precedent already indicates age and student status should be considered in First, Fourth, Fifth, and Eighth Amendment contexts.130 130.Supra note 100; Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 379 (2009) (Fourth Amendment context).Show More Justice Alito himself has signed on to an opinion indicating agreement with this approach in the Fourth Amendment context.131 131.Safford, 557 U.S. at 368, 379 (2009); see also Howes v. Fields, 565 U.S. 499 (2012) (Justices Alito, Scalia, and Thomas abandoning a one-size-fits-all approach and accepting a reasonable inmate’s perspective on custody).Show More Rather than introducing a new requirement for judges, the posited student-conscious reasonableness standard makes explicit the requirement that judges consider children’s ages when determining Fourth Amendment violations, as has already been made explicit in other constitutional contexts. This standard’s focus on age is complemented by a focus on student status, aligning with precedent regarding the government’s interest in education.132 132.Supra notes 42–47 and surrounding text; supra Section II.A.Show More As this standard distills existing precedent related to age and student-status to illuminate how the Fourth Amendment should be understood in a school context, it does not provide a basis for opening the floodgates for non-school-based Fourth Amendment litigation.

B. Cross-Ideological Support

The proposed student-conscious reasonableness model makes explicit how existing Fourth Amendment doctrine applies to schoolchildren, and has the potential to gain cross-ideological support from the Roberts Court Justices. Justice Gorsuch has expressed his distaste for the current role of policing in school discipline.133 133.A.M. v. Holmes, 830 F.3d 1123, 1169 (10th Cir. 2016) (Gorsuch, J., dissenting) (“If a seventh grader starts trading fake burps for laughs in gym class, . . . . Maybe today you call a police officer. And maybe today the officer decides that . . . an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option . . . . Respectfully, I remain unpersuaded.”).Show More Justices Breyer, Roberts, and Alito all ruled school officials violated a student’s Fourth Amendment rights when strip searching the child for painkillers, basing their holding largely on the student’s vulnerability as a child.134 134.Safford, 557 U.S. at 368, 375, 379.Show More Justices Sotomayor and Kagan have yet to hear a case regarding students’ Fourth Amendment rights at school or school policing more generally. However, they have advocated for strong Fourth Amendment rights broadly.135 135.E.g., Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (maintaining individuals have a reasonable expectation to digital privacy).Show More Justice Sotomayor has particularly emphasized the need for robust Fourth Amendment rights for those disproportionately targeted by police due to their race.136 136.Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting).Show More

Support from Justices Thomas, Barrett, and Kavanaugh for the proposed student-conscious Fourth Amendment reasonableness standard is less certain. Justice Thomas would likely prefer courts heavily defer to school choices regarding campus policing policies. He has explained children have reduced rights at schools—viewing schools as a “substitute[] of parents” with broad authority “to discipline speech and conduct.”137 137.Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2059 (2021). (Thomas, J., dissenting); see also Redding, 557 U.S. at 384 (Thomas, J., dissenting) (“[S]chool officials retain broad authority to protect students and preserve ‘order and a proper educational environment’ under the Fourth Amendment.”) (citation omitted).Show More Although Justices Barrett and Kavanaugh have not expressed views regarding students’ Fourth Amendment rights at school or school policing more generally, they may support deference to school police, having exhibited limited views of the Fourth Amendment’s scope.138 138.E.g., Torry v. City of Chicago, 932 F.3d 579, 588–89 (7th Cir. 2019) (Barrett, J.) (then-Judge Barrett, finding officers were entitled to immunity in a lawsuit alleging they illegally stopped and harassed three Black men in a car); United States v. Jones, 625 F.3d 766, 770–71 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (arguing a defendant had no reasonable expectation of privacy while driving a car on a public thoroughfare, so police could install a tracking GPS in his car); United States v. Askew, 529 F.3d 1119, 1165 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (arguing that officers were within their rights to unzip and open a defendant’s jacket after an original frisk yielded nothing). But see Caniglia v. Strom, 141 S. Ct. 1599, 1602–05 (2021) (Kavanaugh, J., concurring) (supporting a broad view of the Fourth Amendment by agreeing the “community caretaking” exception to the Fourth Amendment’s warrant requirement does not extend to the home). Still, as they have sought to protect students’ First Amendment rights away from school campuses, they could possess broader views on children’s constitutional protections than currently known. See Mahanoy, 141 S. Ct. at 2042–43.Show More

Conclusion

Race-based criminalization in schools must end. Otherwise, American schools can never move beyond a dual system of education, which provides minority students with unequal educational opportunities, setting them up for a lifetime of inequality. Ensuring all students’ Fourth Amendment rights in school policing contexts would work towards dismantling the school-to-prison pipeline’s racially based pattern of pushing students from classrooms and into the criminal justice system. Judicial precedent supports that (1) students deserve procedural protections at school, (2) children experience police interactions differently than adults, and (3) both students and state governments have important interests in the provision of an education. Building on such precedent, it is time to hold schools and law enforcement agents accountable, end racialized school discipline, and ensure students receive full Fourth Amendment rights so they can more readily access the educational opportunities their states have guaranteed them.

  1. * J.D. Candidate, University of Virginia School of Law (expected 2022). I would like to thank Professor Kimberly J. Robinson, Professor Josh Bowers, Scott Harman-Heath, Professor Josh Gupta-Kagan, Professor Jason P. Nance, Elizabeth Adler, Barrett Anderson, Julia Eger, Margaret Booz, Meredith Kilburn, and Jack Hoover for their helpful comments. Additionally, I wish to thank Dean Dayna Matthew and Professor Katie Ryan for valuable conversations that inspired me to write this piece, as well as Professor A.E. Dick Howard for encouraging my research related to constitutional doctrines in school settings.
  2. Ryan Faircloth, Minneapolis Public Schools Terminates Contract with Police Department over George Floyd’s Death, StarTribune (June 2, 2020, 9:38 PM), https://www.startribune.co​m/mpls-school-board-ends-contract-with-police-for-school-resource-officers/570967942/ [ht​tps://perma.cc/9C7G-TWD2].
  3. E.g., Dana Goldstein, Do Police Officers Make Schools Safer or More Dangerous?, N.Y. Times (Oct. 28, 2021), https://www.nytimes.com/2020/06/12/us/schools-police-resource-officers.html [https://perma.cc/54U4-V4LJ].
  4. E.g., Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020), https://time.com/magazine/us/5847952/june-15th-2020-vol-195-no-22-u-s/ [https://perma.cc/RT4B-FLJ9].
  5. E.g., Kim Bellware, Chicago School Board Votes to Keep $33M Police Contract – But Student Activists Say the Fight Isn’t Over, Wash. Post. (June 25, 2020), https://www.washi​ngtonpost.com/education/2020/06/25/chicago-school-police/ [https://perma.cc/BT7V-85C3]; infra Part I.
  6. E.g., Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. 2013, 2043–45 (2019).
  7. E.g., Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 204–05 (2016).
  8. E.g., New Jersey v. T.L.O., 469 U.S. 325, 340–43 (1985) (plurality opinion); see also Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987, 1006 (2014) (pointing out that, in some contexts, an all-things-considered “general reasonableness” approach may allow for consideration of interests beyond just quantitative measures of legal guilt such as “probable cause”).
  9. Infra Section II.A.
  10. Infra Sections II.A, III.A.
  11. E.g., T.L.O., 469 U.S. at 337 (plurality opinion).
  12. Infra Section II.B.
  13. E.g., Goss v. Lopez, 419 U.S. 565, 576 (1975). But cf. Bowers, supra note 7 (arguing that consideration of probable cause should supplement, rather than replace, other relevant considerations).
  14. This Essay considers only federal law. Additionally, officer qualified immunity in a school context is outside this Essay’s scope.
  15. E.g., Alexis Karteron, Arrested Development: Rethinking Fourth Amendment Standards for Seizures and Uses of Force in Schools, 18 Nev. L.J. 863, 905–17 (2018); Jason E. Yearout, Individualized School Searches and the Fourth Amendment: What’s a School District to Do?, 10 Wm. & Mary Bill Rts. J. 489, 522–23 (2002).
  16. E.g., Goss, 419 U.S. at 576. The student-conscious model considers only K–12 students, as only K–12 education is guaranteed in all states. Emily Parker, 50 State Review: Constitutional Obligations for Public Education, Educ. Comm’n of the States 1–2 (Mar. 2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-educati​on-1.pdf [https://perma.cc/CUR7-4HJR].
  17. Infra Part II; Jason P. Nance, Implicit Racial Bias and Students’ Fourth Amendment Rights, 94 Ind. L.J. 47, 93–94 (2019).
  18. Cf. Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129 (2017) (arguing for Fourth Amendment doctrines that would do more to accommodate the particular perspectives of specific individuals and groups).
  19. Jack Denton, When Schools Increase Police Presence, Minority Students Are Harmed Disproportionately, Pacific Standard (Feb. 15, 2019), https://psmag.com/education/after-parkland-schools-upped-police-presence-has-it-made-students-safer [https://perma.cc/2LU3-BMGJ].
  20. For example, following Parkland’s shooting, Florida legislated schools must always have a “safe-school officer” present. Fla. Stat. § 1006.12 (2019).
  21. See Nat’l Inst. of Just., School Safety: By the Numbers (Nov. 2017), https://www.ncjrs.go​v/pdffiles1/nij/251173.pdf [https://perma.cc/A6V7-25LZ].
  22. Id.; Ashley Fetters, The Developing Norms for Reopening Schools After Shootings, Atlantic (Aug. 27, 2018), https://www.theatlantic.com/education/archive/2018/08/how-schools-decide​-when-to-reopen-after-a-shooting/568666/ [https://perma.cc/A9QG-SC4Q].
  23. Nat’l Inst. of Just., supra note 20; Philip J. Cook, Denise C. Gottfredson, and Chongmin Na, School Crime Control and Prevention, 39 Crime & Just. 313, 316 (2010).
  24. Kenneth Alonzo Anderson, Does More Policing Make Middle Schools Safer?, Brookings Inst. (Nov. 8, 2018), https://www.brookings.edu/blog/brown-center-chalkboard/2018/11/08/d​oes-more-policing-make-middle-schools-safer/ [https://perma.cc/8Y97-49S4].
  25. Compare Anya Kamenetz, Why There’s a Push to Get Police Out of Schools, NPR (June 23, 2020, 7:00 AM), https://www.npr.org/2020/06/23/881608999/why-theres-a-push-to-get-police-out-of-schools [https://perma.cc/2JQP-SN4B] (describing an argument SROs stop shootings before they happen), with Eli Saslow, ‘It Was my Job, and I Didn’t Find Him’: Stoneman Douglas Resource Officer Remains Haunted by Massacre, Wash. Post (June 4, 2018), https://www.washi​ngtonpost.com/national/it-was-my-job-and-i-didnt-find-him-stone​man-douglas-resource-offi​cer-remains-haunted-by-massacre/2018/06/04/796f1c16-679d-11​e8-9e38-24e693b38637_sto​ry.html [https://perma.cc/H3Z9-82P9] (describing an account by an SRO who failed to stop the Marjory Stoneman shooting).
  26. Compare, e.g., Emily G. Owens, Testing the School-to-Prison Pipeline, 36 J. Pol’y Analysis & Mgmt. 11, 34 (2016) (describing how SRO presence increases school safety), with Aaron Kupchik, Research on the Impact of School Policing, ACLU Penn. 1 n.3 (Aug. 2020), https://www.endzerotolerance.org/impact-of-school-policing [https://perma.cc/X3VF-7HGZ] (listing studies indicating SROs either do not impact student crime or SRO presence is associated with increased student misconduct). Inconclusive data may be due to SROs filling a solely law enforcement role in some schools while serving in mentorship capacities in others. See Kupchik, supra, at 1.
  27. See, e.g., Emily M. Homer & Benjamin W. Fisher, Police in Schools and Student Arrest Rates Across the United States: Examining Differences by Race, Ethnicity, and Gender, 19 J. Sch. Violence 192, 192 (2020).
  28. Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 933 (2016) [hereinafter Nance, Students, Police].
  29. Id.
  30. E.g., Deanna N. Devlin & Denise C. Gottfredson, The Roles of Police Officers in Schools: Effects on the Recording and Reporting of Crime, 16 Youth Violence & Juv. Just. 208, 217 (2016).
  31. Matthew T. Theriot & Matthew J. Cuellar, School Resource Officers and Students’ Rights, 19 Contemp. Just. Rev. 363, 369 (2016).
  32. Id.
  33. Id. at 369–70.
  34. Richard G. Dudley, Jr., Childhood Trauma and Its Effects: Implications for Police, New Perspectives Policing, July 2015, at 1, 5 (trauma can “rewire [children’s] brains,” impacting their future encounters with law enforcement).
  35. Nancy Heitzeg, The School-to-Prison Pipeline: Education, Discipline, and Racialized Double Standards 102 (2016).
  36. See, e.g., Erin R. Archerd, Restoring Justice in Schools, 85 U. Cin. L. Rev. 761, 794–95 (2017) (explaining restorative justice as an example of a discipline practice that helps students work towards improved behavior); Nance, Students, Police, supra note 27, at 981.
  37. Jason P. Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, 48 Ariz. St. L.J. 313, 356–57, 360 (2016).
  38. See, e.g., Aaron Kupchik, Things Are Tough All Over: Race, Ethnicity, Class and School Discipline, 11 Punishment & Soc’y 291, 292 (2009).
  39. See Charles Ogletree, Robert J. Smith, and Johanna Wald, Coloring Punishment: Implicit Social Cognition and Criminal Justice, in Implicit Racial Bias Across the Law 54 (Justin D. Levinson & Robert J. Smith eds., 2012).
  40. U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 161 (July 2019), https://www.usccr.gov/pubs/2019/07-23-Beyond-Suspensions.pdf [https://perma.cc/H​7W3-E8LH] [hereinafter Beyond Suspensions].
  41. Archerd, supra note 35, at 773. For comparison, in fall 2018, 15% of public-school students were Black and 27% were Hispanic. Racial/Ethnic Enrollment in Public Schools, Nat’l Ctr. for Educ. Stat. (May 2021), https://nces.ed.gov/programs/coe/indicator_cge.asp [https://perma.cc/9FV2-CQGD].
  42. Beyond Suspensions, supra note 39, at 42, 45 n.244, 53.
  43. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.”); Goss v. Lopez, 419 U.S. 565, 576 (1975) (“Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses . . . .”); Plyler v. Doe, 457 U.S. 202, 214 (1982) (holding everyone within a state’s boundaries has educational rights).
  44. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
  45. See sources cited supra note 42; see also Eric Merriam, Obergefell and the Dignitary Harm of Identity-Based Military Service and Exclusion, 27 UCLA Women’s L.J. 41, 67 (2020) (“[A]n equal protection right to basic education . . . requires that when the government does provide it, it be provided equally.”).
  46. E.g., New Jersey v. T.L.O., 469 U.S. 325, 339–40 (1985) (plurality opinion).
  47. E.g., id. at 353 (Blackmun, J., concurring); id. at 357 (Brennan, J., concurring).
  48. The disparate rate at which SROs discipline students of color hinders the government from achieving its interest in creating integrated school environments. E.g., Brown, 347 U.S. at 493 (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”).
  49. Since 2001, only regulatory agencies and the Department of Justice (“DOJ”) can enforce disparate impact claims under Title VI. Alexander v. Sandoval, 532 U.S. 275, 284–85 (2001) (private litigants cannot bring disparate impact suits); 34 C.F.R. § 100.8(a) (2021) (allowing regulatory agencies and the DOJ to enforce disparate impact claims). The DOJ can engage in disparate impact suits, and the Department of Education (“ED”) can investigate complaints and review schools’ compliance with the ED’s Office for Civil Rights’s (“OCR”) guidelines, consequently revoking federal funds pursuant to Title VI as necessary. Office for Civil Rights, U.S. Dep’t of Educ., Case Processing Manual (CPM) 23 (2020), https://www2.ed.gov/ab​out/offices/list/ocr/docs/ocrcpm.pdf [https://perma.cc/K4YP-HFU2]; 42 U.S.C. § 2000d-1.
  50. E.g., Catherine E. Lhamon & Jocelyn Samuels, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline 4, 7 (Jan. 8, 2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf [https://perma.cc/9SPS-H26B] (rescinded by Kenneth L. Marcus & Eric S. Dreiband, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter (Dec. 21, 2018), https://ww​w2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf [https://perma.cc/MXX7-V2B​3]); Office for Civil Rights, U.S. Dep’t of Educ., Questions & Answers on Racial Discrimination and School Discipline 2 n.6 (2018), https://www2.ed.gov/about/offices/lis​t/ocr/docs/qa-title-vi-201812.pdf [https://perma.cc/9Z8A-QV35].
  51. Supra note 49 and surrounding text.
  52. T.L.O., 469 U.S. at 340 (plurality opinion).
  53. Id. at 340–41.
  54. Id. at 337.
  55. Id. at 337–38.
  56. Id. at 339.
  57. Id. at 340.
  58. Id. at 340–41; see generally Silas J. Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 Am. Crim. L. Rev. 119 (1989) (describing “general reasonableness” as understood by this Essay).
  59. T.L.O., 469 U.S. at 341–42 (citation omitted).
  60. Id. at 342 (citation omitted). This theoretically provides more protection than a probable cause, or quantum of guilt, standard in conventional crime-solving contexts. See, e.g., Bowers, supra note 7, at 1021–22. However, as this Essay further explores, this standard has been treated as “amorphous.” See, e.g., T.L.O., 469 U.S. at 367 (Brennan, J., concurring) (describing the new standard as “ambiguous,” potentially “leav[ing] teachers and administrators uncertain as to their authority and . . . encourag[ing] excessive fact-based litigation.”); Barry C. Feld, T.L.O. and Redding’s Unanswered (Misanswered) Fourth Amendment Questions: Few Rights and Fewer Remedies, 80 Miss. L.J. 847, 848–49 (2011) (presenting T.L.O.’s reasonableness standard as “amorphous”).
  61. 469 U.S. at 340 (plurality opinion).
  62. Id. at 351–53 (Blackmun, J., concurring); id. at 349–50 (Powell, J., concurring). Justice Powell emphasized that the flexible Fourth Amendment standard described by the T.L.O. plurality stemmed from a close relationship between teachers and students, which differs from students’ relationship with “[l]aw enforcement officers[, who] function as adversaries of criminal suspects.” Id. at 349 (Powell, J., concurring); see also id. at 351 (Blackmun, J., concurring) (emphasizing searches, such as the school official-led search at hand, could evade Fourth Amendment warrant and probable cause requirements, “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable”).
  63. Id. at 341 n.7; see also Gupta-Kagan, supra note 5, at 2022 (“T.L.O.’s rationale set up an important question: Are searches by school resources officers, or searches by school officials at the behest of or in conjunction with SROs, governed by T.L.O.?”).
  64. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 833 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995); Gupta-Kagan, supra note 5, at 2023.
  65. Earls, 536 U.S. at 837–38; Acton, 515 U.S. at 663–65.
  66. Earls, 536 U.S. at 833; Acton, 515 U.S. at 658.
  67. Earls, 536 U.S. at 833–34.
  68. Goss v. Lopez, 419 U.S. 565, 576 (1975) (“But, ‘education is perhaps the most important function of state and local governments,’ and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child.”) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).
  69. Ferguson v. City of Charleston, 532 U.S. 67, 83 n.20 (2001); see also Developments in the Law — Policing, 128 Harv. L. Rev. 1706, 1762 (2015) (“[T]he identity of who uses the result of a search does bear on the seriousness of the privacy intrusion.”).
  70. New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).
  71. E.g., Ferguson, 532 U.S. at 83 n.20, 84, 88 (Kennedy, J., concurring); see also Josh Gupta-Kagan, Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need to Reform the Fourth Amendment Special Needs Doctrine, 87 Tulane L. Rev. 353, 399–422 (2012) [hereinafter Gupta-Kagan, Beyond Law Enforcement] (theorizing how to improve the special needs test to best serve children, based on empirical evidence).
  72. A.M. v. Holmes, 830 F.3d 1123, 1157–61 (10th Cir. 2016) (applying T.L.O. analysis to an SRO as well as a school principal and assistant principal); Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1304–06 (11th Cir. 2006) (applying T.L.O. when analyzing an unlawful seizure claim filed against a law enforcement deputy at an elementary school); Shade v. City of Farmington, 309 F.3d 1054, 1060–62 (8th Cir. 2002) (applying T.L.O. to determine the legality of a search law enforcement officers conducted away from school grounds in conjunction with a school teacher and administrator); Gupta-Kagan, supra note 5, at 2024–25 (explaining a majority of state courts have applied T.L.O. to SROs).
  73. E.g., Bostic, 458 F.3d at 1304; C.B. v. City of Sonora, 769 F.3d 1005, 1023–28 (invoking T.L.O. without using its two-part analysis for the seizure at issue); Ziegler v. Martin Cnty. Sch. Dist., 831 F.3d 1309, 1322–24 (11th Cir. 2016); Wofford v. Evans, 390 F.3d 318, 326–27 (4th Cir. 2004); Doe ex rel. Doe v. Hawaii Dep’t. of Educ., 334 F.3d 906, 909–10 (9th Cir. 2003).
  74. Neague v. Cynkar, 258 F.3d 504, 505–07 (6th Cir. 2001).
  75. Infra Section III.A; see also Bowers, supra note 17, at 198 (arguing that in Fourth Amendment cases judges should do more to accommodate the perspective of the layperson).
  76. Graham v. Connor, 490 U.S. 386, 396 (1989); supra note 71 (listing relevant cases). Deadly force is outside the scope of this Essay, as it is uncommon in school policing. For a discussion of deadly force, see, e.g., Scott A. Harman-Heath, Renaming Deadly Force, 106 Cornell L. Rev. 1689, 1690–713 (2021).
  77. E.g., Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *7 (M.D. Tenn. Dec. 17, 2014) (“[T]he Court must first consider the factors uniquely relevant to this case as required by Graham, namely the very young age of T.H. and the fact that this incident took place in a school setting.”); E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018) (“Here, we believe it prudent to consider also the suspect’s age and the school context.”); Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (“His age and size are certainly factors in the totality-of-the-circumstances reasonableness calculation. . . . However, these factors alone do not render force used against him unreasonable per se.”).
  78. Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); United States v. Place, 462 U.S. 696, 703 (1983)); Scott v. Harris, 550 U.S. 372, 383 (2007); see also Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1127, 1136–38 (2008) (discussing how the Scott Court undermined Graham and Garner, therein “reduc[ing] the Fourth Amendment regulation of reasonable force to its vaguest form . . . .”).
  79. Graham, 490 U.S. at 397 (citations omitted).
  80. See, e.g., Charles Ogletree et al., supra note 38, at 54 (discussing that implicit biases often affect decisions made by school administrators and school resource officers).
  81. Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
  82. Id. But see Harmon, supra note 77, at 1127, 1130 (explaining the Graham reasonableness standard allows juries to decide use of force cases based on “their intuitions”). The Eighth Circuit has noted sister circuits’ lack of clarity regarding whether to apply the T.L.O. or Graham reasonableness standard when considering a student seizure involving law enforcement officers on school grounds. K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 822 (8th Cir. 2019).
  83. Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (10th Cir. 2014).
  84. Id.
  85. Id.; see also C.B. v. Sonora, 769 F.3d 1005, 1030 (9th Cir. 2014) (describing the child’s small size as factoring against the reasonableness of his seizure).
  86. Hawker, 591 F. App’x at 675.
  87. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (considering age when determining reasonableness in a Fourth Amendment context).
  88. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1300–07 (11th Cir. 2006).
  89. Id. at 1306.
  90. E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 180–82, 188 (4th Cir. 2018).
  91. C.B. v. City of Sonora, 769 F.3d 1005, 1023–24, 1029–30 (9th Cir. 2014).
  92. New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985) (plurality opinion); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995).
  93. T.L.O., 469 U.S. at 341–42; Acton, 515 U.S. at 656.
  94. E.g., In re Gault, 387 U.S. 1, 21–27 (1967); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374–79 (2009); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975).
  95. E.g., J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).
  96. T.L.O., 469 U.S. at 342; Redding, 557 U.S at 375.
  97. Redding, 557 U.S. at 368, 379.
  98. These factors build on those Professor Alexis Karteron has previously discussed when describing a school-specific reasonableness standard for students. Karteron, supra note 14, at 870 (“[R]easonableness requires consideration of objective factors especially relevant to the school context and unique vulnerabilities of youth including: the seriousness of the alleged infraction or crime; the likelihood that the student has committed an infraction or crime; the age of the student; the size and stature of the student; the likelihood of inflicting harm or trauma, especially in light of known disabilities or vulnerabilities; and the necessity of the enforcement action.”).
  99. T.L.O., 469 U.S. at 338–40; Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); Karteron, supra note 14, at 907 (“In T.L.O. and subsequent cases, all decided in the context of a search conducted by a school official, the Court identified privacy as the only student interest at stake.”).
  100. T.L.O., 469 U.S. at 341 (emphasis added); see Bowers, supra note 7, at 1105–07 (arguing that special-needs searches may sometimes be more protective by accommodating considerations that the Court deems irrelevant for crime-solving searches).
  101. E.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (First Amendment Establishment Clause context); Tinker v. Des Moines Indep. Sch. Dist. 393 U.S. 503, 508 (1969) (First Amendment Speech Clause context); J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011) (Fifth Amendment context); Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982) (Eighth Amendment context); Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954) (Fourteenth Amendment Equal Protection Clause context); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975) (Fourteenth Amendment Due Process Clause context).
  102. Other scholars have agreed these broader interests must be encompassed. E.g., Karteron, supra note 14, at 905; Gupta-Kagan, Beyond Law Enforcement, supra note 70, at 411.
  103. Supra Section II.B.
  104. Supra notes 45–47 and accompanying text.
  105. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375 (2009). For a depiction of the Court taking different views of “dignity” in Fourth Amendment consideration, see Bowers, supra note 7, at 1010–18.
  106. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (plurality opinion).
  107. Supra note 77 and surrounding text.
  108. Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).
  109. Supra note 42 and surrounding text.
  110. Goss v. Lopez, 419 U.S. 565, 582 (1975).
  111. Supra Part I.
  112. Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 375 (2009).
  113. Infra note 116 and surrounding text.
  114. E.g., J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011); Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (“[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.”).
  115. J.D.B., 564 U.S. at 275.
  116. See, e.g., Karteron, supra note 14, at 880.
  117. Id.; Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).
  118. Karteron, supra note 14, at 913.
  119. E.g., Graham v. Connor, 490 U.S. 386, 395–97 (1989).
  120. See, e.g., Hawker, 591 Fed. App’x. at 671.
  121. Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 Minn. L. Rev. 823, 903–04 (2015).
  122. Id.
  123. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368–369, 379 (2009).
  124. J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).
  125. See, e.g., Bowers, supra note 7, at 1016–17; Bowers, supra note 17, at 144.
  126. J.D.B., 564 U.S. at 293 (Alito, J., dissenting).
  127. Id. at 294 (Alito, J., dissenting).
  128. J.D.B., 564 U.S. at 283 (Alito, J., dissenting).
  129. Policy-and-practice arguments are outside the scope of this Essay, but it is worth noting that, though some states require no school-specific training for SROs, e.g., Ala. Code § 16-1-44.1 (2019); Ky. Rev. Stat. Ann. §158.441 (West 2020), many states already train SROs to work with students. E.g., Wash. Rev. Code § 28A.320.124(1)(a) (2021); Cal. Educ. Code § 38000(e) (West 2020); Conn. Gen. Stat. § 17a-22bb (2013); N.M. Stat. Ann. § 29-7-14(B) (2020); Va. Code Ann. § 9.1-102 (2020); see also Ga. Code. Ann. § 35-8-27(b) (training is available but not required). Training SROs in a student-conscious reasonableness model would thus be a low-cost initiative, building on existing training models.
  130. J.D.B., 564 U.S. at 293 (Alito, J., dissenting).
  131. Supra note 100; Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 379 (2009) (Fourth Amendment context).
  132. Safford, 557 U.S. at 368, 379 (2009); see also Howes v. Fields, 565 U.S. 499 (2012) (Justices Alito, Scalia, and Thomas abandoning a one-size-fits-all approach and accepting a reasonable inmate’s perspective on custody).
  133. Supra notes 42–47 and surrounding text; supra Section II.A.
  134. A.M. v. Holmes, 830 F.3d 1123, 1169 (10th Cir. 2016) (Gorsuch, J., dissenting) (“If a seventh grader starts trading fake burps for laughs in gym class, . . . . Maybe today you call a police officer. And maybe today the officer decides that . . . an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option . . . . Respectfully, I remain unpersuaded.”).
  135. Safford, 557 U.S. at 368, 375, 379.
  136. E.g., Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (maintaining individuals have a reasonable expectation to digital privacy).
  137. Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting).
  138. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2059 (2021). (Thomas, J., dissenting); see also Redding, 557 U.S. at 384 (Thomas, J., dissenting) (“[S]chool officials retain broad authority to protect students and preserve ‘order and a proper educational environment’ under the Fourth Amendment.”) (citation omitted).
  139. E.g., Torry v. City of Chicago, 932 F.3d 579, 588–89 (7th Cir. 2019) (Barrett, J.) (then-Judge Barrett, finding officers were entitled to immunity in a lawsuit alleging they illegally stopped and harassed three Black men in a car); United States v. Jones, 625 F.3d 766, 770–71 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (arguing a defendant had no reasonable expectation of privacy while driving a car on a public thoroughfare, so police could install a tracking GPS in his car); United States v. Askew, 529 F.3d 1119, 1165 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (arguing that officers were within their rights to unzip and open a defendant’s jacket after an original frisk yielded nothing). But see Caniglia v. Strom, 141 S. Ct. 1599, 1602–05 (2021) (Kavanaugh, J., concurring) (supporting a broad view of the Fourth Amendment by agreeing the “community caretaking” exception to the Fourth Amendment’s warrant requirement does not extend to the home). Still, as they have sought to protect students’ First Amendment rights away from school campuses, they could possess broader views on children’s constitutional protections than currently known. See Mahanoy, 141 S. Ct. at 2042–43.