Interpretive Lawmaking

*Associate Professor, J. Reuben Clark Law School at Brigham Young University; J.D., The University of Chicago Law School; B.S., Brigham Young University. For very helpful discussion and feedback on previous drafts, the author thanks Will Baude, C’Zar Bernstein, Sam Bray, Charles Capps, Anthony Deardurff, Fred Gedicks, Jacob Harcar, John Harrison, David Kinnaird, Tom Lee, Micah Quigley, Lawrence Solum, Adam Steene, Lior Strahilevitz, Ernest Young, and the participants in the BYU faculty workshop, the Young Legal Scholars panel at the Federalist Society Annual Faculty Conference, and the Junior Federal Courts Workshop. Wesley White provided fantastic research assistance. For indispensable discussion and support, the author thanks his wife, Katrina Lindley.Show More

For nearly 100 years, prevailing American legal thought has rejected the idea that there can be unwritten bodies of law that judges ascertain and apply just as they do written law. Instead, the story goes, the only preexisting sets of legal rules come from written texts; all other rules—at common law, in equity, or in filling gaps in statutory or constitutional text—are necessarily made by judges. So, when a written text fails to provide a legal rule, courts have the power to make policy decisions and create one, subject to some limitations such as the Due Process Clause.

But the Founders understood judges to be capable of resolving disputes by only finding law—a belief that persisted into the early twentieth century. Not only did judges lack the authority to make law at common law or in equity, but they also lacked authority to make law in applying written text—even when traditional methods of finding and applying written law provided no answer and even if Congress intended to delegate lawmaking power. What’s more, the judicial power granted in Article III was not originally understood to have included a freestanding lawmaking power. And because it is possible for judges to find law, that original understanding might constrain the judiciary today. To be sure, it is often difficult to know where interpretation and application end and lawmaking begins. And the Founders’ conception of the judicial role might not be binding or might have been altered by nearly a century’s practice. But judges, especially originalist judges, should seriously confront the fact that, as an original matter, the Constitution granted judges no lawmaking power.

This Article also explores how several current judicial doctrines might change if courts refused to make law in applying written text. For example, Article III could offer its own prohibition against vague statutes—subject to different requirements and remedies than the conventional due process-based vagueness doctrine. A return to the original understanding of the judicial power would cast doubt on the judicial practices of interstitial lawmaking and of making law when applying so-called “common law statutes.” And Erie guesses might raise Article III concerns if the relevant state court is authorized to make law (in which case federal courts predicting such a state court would be impermissibly lawmaking). Stare decisis considerations might counsel caution in some areas. But judges should also approach the constitutional problems and doctrinal inconsistencies caused by uncritical judicial lawmaking with clear eyes.

Introduction

Justice Oliver Wendell Holmes, Jr., derided the idea of preexisting unwritten law as belief in a “brooding omnipresence in the sky.”¹ 1.See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).Show MoreHe even criticized Justice Story for being “dominat[ed]” by such a fanciful idea in Swift v. Tyson.² 2.41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533–35 (1928) (Holmes, J., dissenting).Show MoreShortly thereafter, the Supreme Court declared the idea a “fallacy” and disclaimed the existence of any “transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.”³ 3.Erie, 304 U.S. at 79 (quoting Black & White Taxicab, 276 U.S. at 533 (Holmes, J., dissenting)).Show MoreIn the modern era, even Justice Scalia, who was otherwise considered a historical formalist, considered the idea “naive.”⁴ 4.James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment); Stephanos Bibas, Blakely’s Federal Aftermath, 16 Fed. Sent’g Rep. 333, 341–42 (2004) (noting “Justice Scalia’s historical, formalist ideal”). Justice Scalia distinguished what the lawmaking legislators do by recharacterizing judicial lawfinding as a case-by-case lawmaking in which judges “discern[] what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” James B. Beam, 501 U.S. at 549; see also id. at 546 (White, J., concurring in the judgment) (arguing that Justice Scalia’s proposed distinction does not work and relies on “citizens who are naive enough to believe” that lawfinding is possible). But that move does not completely avoid the problem because lawfinding at the Founding was not considered to be lawmaking at all. See infra note 128.Show MoreIf it is true that judges routinely make law, then the basis for the Constitution’s protections of judicial independence, such as life tenure, becomes unclear, as they were premised on the idea that judges would find law. And if judges are not in fact so constrained, why should those protections bind today?

But the tides are turning—or returning. Recent scholarship has defended the prevailing conception at the Founding that judges can find law—either as expressed in written text or as existing as authoritative unwritten law.⁵ 5.See, e.g., Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527, 529 (2019) [hereinafter Sachs, Finding Law]. To be sure, seeds of dissent have been around for much longer. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1514–15 (1984); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. 921, 924–37 (2013) [hereinafter Nelson, Critical Guide].Show MoreOne commentator has even argued that the judicial power given to federal courts in Article III does not include the authority to make common law.⁶ 6.See Micah S. Quigley, Article III Lawmaking, 30 Geo. Mason L. Rev. 279, 302–05 (2022).Show MoreAnd a recent article advances the argument that the law does not necessarily run out, which means that a judge could only find law.⁷ 7.See Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame L. Rev. (forthcoming 2025) (manuscript at 11–12), https://papers.ssrn.com/sol3/papers.cfm?abstract_‌id=4908863 [https://perma.cc/97YH-FDPP].Show MoreFormalist judges have introduced some of these underlying theories in various contexts.⁸ 8.See, e.g., Lester v. United States, 921 F.3d 1306, 1312–13 (11th Cir. 2019) (Pryor, J., statement respecting the denial of rehearing en banc) (asserting that judges find law in the context of retroactivity in collateral proceedings).Show MoreBut to date, little attention has been paid to legal interpretation in a post-realist legal order.⁹ 9.One notable recent exception is Professor Charles Tyler. See Charles W. Tyler, Common Law Statutes, 99 Notre Dame L. Rev. 669, 679–84 (2023). But he offers other reasons for using general law in interpretation, see id. at 684–92, and avoids answering the question whether Article III requires it, id. at 685 & n.92.Show MoreThis Article fills that void.

Historically, courts distinguished between interpreting and applying law—which were permissible judicial functions—and making law when neither statute nor unwritten law provided a legal rule—which was an impermissible legislative function.¹⁰ 10.See, e.g., Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 309 (1818).Show MoreAlthough the line was not always easy to draw, courts tried to thread the needle and considered themselves to be applying only preexisting law, possible instances of judicial lawmaking notwithstanding. It was in this legal context that Article III was drafted and ratified. The judicial power referenced in Article III was not understood to contain a substantive lawmaking power—even when no law provided an applicable rule.¹¹ 11.See infra Subsection II.A.3.Show MoreAnd because judges found rather than made law, they plausibly needed to be independent from political interests that would seek to influence them to create new law outside the legislative process.

This conclusion has obvious relevance for cases involving unwritten law, but the Founding generation similarly understood the judicial power to be so limited in cases involving written law. When a case turned on a question of written law, courts first looked to the text—in the light of the common law and other legal customs—to find the relevant legal rule. If this textual inquiry did not provide an answer, courts could apply a rule of unwritten law (if there was one) or state law in some instances. And if there was no applicable unwritten- or state-law rule, courts considered themselves bound to simply declare that there was no legal rule and use default rules or burdens of proof to resolve the parties’ dispute.¹² 12.See infra Subsection II.A.3.Show MoreIn a way, the lack of authority would have incentivized judges to find all the law they could in recognized sources.

Then arrived the legal realist movement, which was reflected in Erie Railroad Co. v. Tompkins. Erie declared three principles, only one of which I challenge here. First, it explained that in cases arising from diversity jurisdiction, state substantive law applied under both the Rules of Decision Act and the Constitution.¹³ 13.Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Nelson, Critical Guide, supra note 5, at 951.Show MoreNothing in this Article undermines that conclusion.¹⁴ 14.For an argument that this conclusion did not support the holding in Erie, see Nelson, Critical Guide, supra note 5, at 951–56, 959.Show MoreSecond, in a departure from the first nearly 150 years of American jurisprudence, Erie stated that there was no American general common law.¹⁵ 15.Erie, 304 U.S. at 78–79. For an argument that such general law demonstrably existed, see Fletcher, supra note 5, at 1514–21. For an argument that it persists post-Erie, see Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503, 547–48, 548 n.216 (2006) [hereinafter Nelson, Persistence].Show MoreAgain, nothing here requires jettisoning this conclusion. If there is a general common law, then it might be within the judicial power to find and apply it; if there is no such law, judges would still have been considered bound to find law, albeit from other sources. Third, Erie asserted that there was no such thing as unwritten law—when judges pronounced a legal rule, they were in fact making that rule as much as a legislature would make a rule through a statute.¹⁶ 16.Erie, 304 U.S. at 79.Show MoreOnly this part of Erie is implicated here. Erie was incorrect to conclude that finding law is impossible. Even further, by not granting the federal judiciary any lawmaking power, the Constitution necessarily envisioned a judiciary confined to finding law. So, to reiterate, nothing I say here implicates Erie’s conclusions that state substantive law governs in diversity cases or that there is no American general common law. Rather, my target is Erie’s conclusion that judicial lawmaking is inevitable. Not only is that conclusion mistaken, but Article III’s grant of judicial power contemplated the opposite: a judiciary that only found law.

Part I explains that finding law is indeed possible. The notion that finding law is possible is a prerequisite to the argument that the Constitution put into place a system that required courts to exclusively find law. If finding law were not possible, the conceptions of judicial power held by the Framers and ratifiers of the Constitution would have little import, even under originalist theories. Part I borrows on recent scholarship by Steve Sachs, Micah Quigley, and Allan Beever, all of whom defend in different ways the possibility of finding unwritten law, and all of whom tie those theories to Founding-era legal thought.

Part II first argues that the judicial power granted to the federal judiciary in Article III did not include a freestanding lawmaking power. The Framers and ratifiers considered judges bound to find and apply preexisting law—whether written or unwritten. And that conception informs the phrase “judicial Power” in Article III. Assuming our government is one of enumerated powers, the fact that the judicial power did not include a freestanding lawmaking power entails that judges were granted only the power to find law, not make it.

Part II also responds to two forceful counterarguments that stand in the way. First, the Founding generation understood courts’ power to make procedural law as consistent with the judicial role. And if Article III’s judicial power allows procedural lawmaking, the argument goes, surely it allowed judges to make substantive law. Second, sometimes—explicitly or implicitly—Congress delegated its Article I lawmaking power to the judiciary. When Congress attempted to do so, an objector might argue, judges were constitutionally obligated to honor Congress’s intent and make law. Regardless of whether this potential for delegated lawmaking justified judicial lawmaking in areas without such delegation, Article III’s judicial power surely allowed judges to make law when Congress delegated that power to them.

But both counterarguments come up short. Federal courts’ limited authority to make “procedural law” did not justify a freestanding substantive lawmaking power. The source of the federal judiciary’s procedural lawmaking power is uncertain. It might be an incidental judicial power to the case-deciding judicial power (that is, the judicial power granted in Article III). In other words, as a historical matter, the case-deciding judicial power necessarily entailed a procedural-lawmaking judicial power. Or it could be understood as an inherent power. Under this theory, the judiciary had the power to make procedural law because there was no way to exercise its case-deciding judicial power without making procedural law. But under either theory, courts’ procedural lawmaking power (1) was strictly limited to questions of procedure and (2) could be permissibly exercised only when no other law—written or unwritten—provided a procedural rule on point.¹⁷ 17.See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (explaining that a procedural question within the inherent power of the judiciary could be regulated by Congress, in which case the judiciary’s power was dormant); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227–28 (1821) (similar proposition for the judicial contempt power).Show More

Nor was Congress understood to be able to delegate its legislative power to courts.¹⁸ 18.See 1 Walter Malins Rose, A Code of Federal Procedure § 6, at 47 (1907) (“[T]he courts may not be required, nor have they a right to exercise non-judicial powers.”).Show MoreUnlike the legislative and executive branches, the judicial branch was given no role in the legislative process and no legislative powers.¹⁹ 19.SeeU.S. Const. art. I, § 1; id. §§ 3, 7; The Federalist No. 47, at 300–05 (James Madison) (Clinton Rossiter ed., 1961) (presenting this view of the separation of powers and collecting instances of crossovers in the states, including instances of the executive branch being given limited legislative powers).Show MoreAnd the structure of judicial review makes it even more unlikely that courts could have made law—even with acquiescence from the other two branches—because judges could not be neutral arbiters of the constitutionality of their own laws. To be sure, this nondelegation principle did not prohibit all judicial discretion in every context, but early courts took seriously the idea that congressional delegation did not provide a lawmaking safe harbor.

Part III addresses the admittedly murky line between applying written texts in adjudication and lawmaking. The fact that a line is difficult to discern does not mean that the distinction is hopelessly indeterminate. Though I do not purport to set forth a clear formula for determining when a court has made law or found and applied it, there are some instances in which courts have indisputably made law. I examine those examples and seek to deduce some guiding principles from which to identify judicial lawmaking.

Part IV examines some potential implications on modern judicial doctrines. In the nearly ninety years since Erie, many doctrines have developed in the shadow of Erie’s presumption that the judiciary has the authority to make law. I examine four such doctrines here and consider how each of these doctrines might be altered if courts revived a lawfinding-only approach.

First, instead of—or perhaps in addition to—being rooted in the Due Process Clause, vagueness doctrine and its accompanying canons of statutory interpretation might have a root in Article III. Grounding vagueness doctrine in Article III would also restrict the remedies available in vagueness challenges; for example, it would cut against facial invalidation of statutes because future courts would still be obligated to apply the statute when law can be found in it.

Second, some laws are not vague in the traditional sense but still invite judicial lawmaking. These laws are so broad that no one interprets them to have their full textual scope, such as Section One of the Sherman Act.²⁰ 20.See infra notes 317–22 and accompanying text.Show MoreAlthough some of these laws could be read as codifying common law principles, federal courts have not always considered themselves to be constrained by the common law at the time of enactment or the common law as developed over time. Instead, courts have taken it upon themselves to make new law and essentially create a new statute via their own judicial policy. But that arrogation of power leaves the judiciary with the legislative task of weighing policy interests to determine the reach of a duly enacted statute.

Third, written texts sometimes appear incomplete or destined to fail, such as the Banking Act of 1933, which created the Federal Deposit Insurance Corporation (“FDIC”).²¹ 21.See Banking Act of 1933, Pub. L. No. 73-66, § 12B, 48 Stat. 162, 168 (1933).Show MoreCourts in those cases have concluded that they have the power to weigh competing federal policies and fashion their own rules through “interstitial lawmaking.”²² 22.See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735, 746–47, 747 n.42 (2001).Show More Openly acting as policy-makers, courts create rules that protect federal interests by considering whether a uniform federal rule is needed and which one to create.²³ 23.See United States v. Kimbell Foods, Inc., 440 U.S. 715, 727–28 (1979) (“Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy ‘dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.’” (quoting United States v. Standard Oil Co., 332 U.S. 301, 310 (1947))).Show MoreAt bottom, courts are creating and enforcing their own legislative decisions and balancing competing interests with (at best) loose congressional guidance.

And finally, although Article III does not define the powers of state courts, the prevailing lawfinding conception affects state law when federal courts perform “Erie guesses.” One of the principles underlying Erie assumes that state high courts must always make law.²⁴ 24.See Nelson, Critical Guide, supra note 5, at 975–84; cf. Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 1111, 1112–13 (2011) [hereinafter Green, Premise].Show MoreBut if state courts make new law in adjudications, that law could not have preexisted the relevant decision. So, rather than guess what the state supreme court would do (thereby in a very real sense making the law that state courts would have made in the future), federal courts should state that there is no law to apply, yet. A close examination of state constitutional law, however, might reveal that state courts cannot or do not make law²⁵ 25.See Green, Premise, supra note 24, at 1126–27 (discussing Georgia practices regarding unwritten law); Jason Boatright, End Judicial Lawmaking, 24 Tex. Rev. L. & Pol. 355, 370 (2020) (discussing the same in Texas).Show Moreor that even intermediate state appellate courts have some limited power to make law.

None of this is to say that these doctrines (and others premised on a judicial lawmaking power) must be undone or rejected. A return to lawfinding as the exclusive method for answering questions of substantive law would have its downsides as well. Judges might become increasingly likely to read too much into the text if they can no longer make law outside of it, our legal community might have let its lawfinding muscles decay for too long to be brought back to life, and perhaps a greater attention to unwritten law would result in a less constrained judiciary than one that could make law but was nonetheless bound by limiting doctrines. (Just to name a few.) As a result, stare decisis considerations might counsel against walking back any of these doctrines, especially those subject to a heightened statutory stare decisis standard. So perhaps the answer would be not to undo any of these doctrines, but to cabin them in recognition of their uneasy pedigree.

And of course, an exclusively lawfinding regime might be rejected on the ground that originalist interpretations of the Constitution in no way bind us today or that decades of practice and acquiescence have sanctioned judicial lawmaking. But even so, originalists and non-originalists alike should be open-eyed about the relationship between the original understanding of the judicial role and its more modern conception.

1.  See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). ↑
2.  41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533–35 (1928) (Holmes, J., dissenting). ↑
3.  Erie, 304 U.S. at 79 (quoting Black & White Taxicab, 276 U.S. at 533 (Holmes, J., dissenting)). ↑
4.  James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment); Stephanos Bibas, Blakely’s Federal Aftermath, 16 Fed. Sent’g Rep. 333, 341–42 (2004) (noting “Justice Scalia’s historical, formalist ideal”). Justice Scalia distinguished what the lawmaking legislators do by recharacterizing judicial lawfinding as a case-by-case lawmaking in which judges “discern[] what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” James B. Beam, 501 U.S. at 549; see also id. at 546 (White, J., concurring in the judgment) (arguing that Justice Scalia’s proposed distinction does not work and relies on “citizens who are naive enough to believe” that lawfinding is possible). But that move does not completely avoid the problem because lawfinding at the Founding was not considered to be lawmaking at all. See infra note 128. ↑
5.  See, e.g., Stephen E. Sachs, Finding Law, 107 Calif. L. Rev
   

   . 527, 529 (2019)

   [hereinafter Sachs, Finding Law]. To be sure, seeds of dissent have been around for much longer. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1514–15 (1984); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54

   Wm. & Mary L. Rev. 921, 924–37 (2013) [hereinafter Nelson, Critical Guide]. ↑

6.  See Micah S. Quigley, Article III Lawmaking, 30 Geo. Mason L. Rev
   

   .

   279, 302–05 (2022). ↑

7.  See Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame L. Rev. (forthcoming 2025) (manuscript at 11–12), https://papers.ssrn.com/sol3/papers.cfm?abstract_‌id=4908863 [https://perma.cc/97YH-FDPP]. ↑
8.  See, e.g., Lester v. United States, 921 F.3d 1306, 1312–13 (11th Cir. 2019) (Pryor, J., statement respecting the denial of rehearing en banc) (asserting that judges find law in the context of retroactivity in collateral proceedings). ↑
9.  One notable recent exception is Professor Charles Tyler. See Charles W. Tyler, Common Law Statutes, 99 Notre Dame L. Rev. 669, 679–84 (2023). But he offers other reasons for using general law in interpretation, see id. at 684–92, and avoids answering the question whether Article III requires it, id. at 685 & n.92. ↑
10.  See, e.g., Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 309 (1818). ↑
11.  See infra Subsection II.A.3. ↑
12.  See infra Subsection II.A.3. ↑
13.  Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Nelson, Critical Guide, supra note 5, at 951. ↑
14.  For an argument that this conclusion did not support the holding in Erie, see Nelson, Critical Guide, supra note 5, at 951–56, 959. ↑
15.  Erie, 304 U.S. at 78–79. For an argument that such general law demonstrably existed, see Fletcher, supra note 5, at 1514–21. For an argument that it persists post-Erie, see Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503, 547–48, 548 n.216 (2006) [hereinafter Nelson, Persistence]. ↑
16.  Erie, 304 U.S. at 79. ↑
17.  See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (explaining that a procedural question within the inherent power of the judiciary could be regulated by Congress, in which case the judiciary’s power was dormant); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227–28 (1821) (similar proposition for the judicial contempt power). ↑
18.  See 1 Walter Malins Rose, A Code of Federal Procedure
    

    § 6

    , at 47 (1907) (“[T]he courts may not be required, nor have they a right to exercise non-judicial powers.”). ↑

19.  See U.S. Const. art. I, § 1; id. §§ 3, 7; The Federalist No. 47, at 300–05 (James Madison) (Clinton Rossiter ed., 1961) (presenting this view of the separation of powers and collecting instances of crossovers in the states, including instances of the executive branch being given limited legislative powers). ↑
20.  See infra notes 317–22 and accompanying text. ↑
21.  See Banking Act of 1933, Pub. L. No. 73-66, § 12B, 48 Stat. 162, 168 (1933). ↑
22.  See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev.
    

    735, 746–47, 747 n.42 (2001). ↑

23.  See United States v. Kimbell Foods, Inc., 440 U.S. 715, 727–28 (1979) (“Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy ‘dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.’” (quoting United States v. Standard Oil Co., 332 U.S. 301, 310 (1947))). ↑
24.  See Nelson, Critical Guide, supra note 5, at 975–84; cf. Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 1111, 1112–13 (2011) [hereinafter Green, Premise]. ↑

25.  See Green, Premise, supra note 24, at 1126–27 (discussing Georgia practices regarding unwritten law); Jason Boatright, End Judicial Lawmaking, 24 Tex. Rev. L. & Pol

    .

    355, 370 (2020) (discussing the same in Texas). ↑