A Prelude to a Critical Race Theoretical Account of Civil Procedure

In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure.


In response to the uprisings and social movement for racial justice following police officers1.The social movement, uprisings, and demonstrations have primarily focused on police killings of Black people, but there also have been notable killings of Black people by people who weren’t police officers. The summer of 2020 witnessed significant demonstrations against those other killings as well, including demonstrations against Travis McMichael, Gregory McMichael, and William “Roddie” Bryan Jr. killing Ahmaud Arbery. Brandon Tensley, Ahmaud Arbery and the Resilience of Black Protest, CNN Politics (May 12, 2020, 8:54 PM), https://www.cnn.com/2020/05/12/politics/ahmaud-arbery-black-protest-pandemic/index.html. [https://perma.cc/V87J-F24C]; Jessica Savage, Looking Back at the Arbery Case and Where Do We Go from Here?, CNN (Feb. 23, 2021, 5:36 PM), https://www.wtoc.com/2021/02/23/looking-back-arbery-case-where-do-we-go-here/ [https://perma.cc/Z9J9-RTMZ]. Others have discussed the relationship between non-police killings of Black people and police killings of Black people. Lyndsey Gough, Protest Held to Demand Arrests for the Death of Ahmaud Arbery, WTOC (May 6, 2020, 10:52 PM), https://www.wtoc.com/2020/05/06/protest-held-demand-arrests-death-ahmaud-arbery/ [https://perma.cc/XPN3-KF4Y]; Shervin Assari, George Floyd and Ahmaud Arbery Deaths: Racism Causes Life-threatening Conditions for Black Men Every Day, The Conversation (June 1, 2020, 8:14 AM), https://theconversation.com/george-floyd-and-ahmaud-arbery-deaths-racism-causes-life-threatening-conditions-for-black-men-every-day-120541 [https://perma.cc/5JCE-5A34]. In this Essay, I tend to refer to police killings of Black people because that seemed to be the primary focus of the largest and most sustained mobilizations, but I don’t mean to prioritize one group of killings of Black people over another by doing so.Show More killing George Floyd, Breonna Taylor, and other Black2.I capitalize “Black” and do not capitalize “white,” “people of color,” or “women of color.” See Portia Pedro, Toward Establishing A Pre-Extinction Definition of “Nationwide Injunctions”, 91 U. Colo. L. Rev., 849 n.5 (2020); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L Rev. 1331, 1332 n.2 (1988) [hereinafter Crenshaw, Race] (“Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.”); see also Kimberle Williams Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 n.6 (1991) (“. . . I do not capitalize ‘white,’ which is not a proper noun, since whites do not constitute a specific cultural group.”).Show More people,3.Demonstrations Force America to Reckon with Contentious Past, N.Y. Times (June 16, 2020), https://www.nytimes.com/2020/06/16/us/george-floyd-rayshard-brooks-protests.html [https://perma.cc/M54X-7JKD]; Damian Cave, Livia Albeck-Ripka & Iliana Magra, Huge Crowds Around the Globe March in Solidarity Against Police Brutality, N.Y. Times (June 6, 2020), https://www.nytimes.com/2020/06/06/world/george-floyd-global-protests.html [https://perma.cc/6AND-3V3K].Show More several dozen civil procedure scholars gathered virtually during the summer of 2020 to discuss how to include racial justice and issues of race in our classrooms.4.This July 22, 2020 session addressed racial and social justice in civil procedure.Show More While this event was a valiant attempt, it struck me as long overdue.

In this Essay, first, I share a personal experience with police as part of suggesting that Black people’s interactions with police might be a source of collective identity and might help us (Black proceduralists, litigators, and scholars of color) to see some of the role of racial subordination within policing and procedure.5.Perhaps there might not be as much in the way of a racial analysis, or analysis integrating other aspects of marginalized identities, within civil procedure because procedural scholars may be primarily white, heterosexual, cisgender men who might not be as aware of the role of race or identity in their experiences in the same way that many people of color, women, members of the Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) community, people who identify as gender nonbinary, and people with disabilities might be.Show More Next, I describe some of the importance of developing a critical race analysis of civil procedure and briefly discuss some of the reasons that this analysis might be underdeveloped.

I. Interacting with the Police as a Collective Black Experience

My first memory of my father is also my first memory of the police.6.To be specific, the Los Angeles County Sheriff’s Department.Show More I was almost five years old when it happened. I was riding as a passenger in my dad’s car, a 1977 Dodge Monaco, as my father, who is Black and, at the time, was a bit under 30 years old, was driving. We were on our way to pick up my cousin from preschool. As my dad and I passed his high school alma mater, sheriffs pulled us over. The deputies approached the car with their guns drawn, pointed at us. They made my dad get out with his hands up, made him lay on the ground, and handcuffed him. With the amount of force that they displayed, he was scared about what they might do to me, especially if I surprised them. He told them that his 5-year-old daughter was in the car. Their response to hearing that a child was in the car was to yell out to 5-year-old me, “One move and I’ll blow your head off.”

The sheriffs didn’t physically harm either of us in that encounter, but our safety was far from guaranteed. When I was older, my parents explained to me that the supposed reason that the sheriffs pulled us over that day was that the prior owner of the car had tampered with one letter of the license plate to make it spell out his name backwards. My dad’s Irish friend had used nail polish to make a “1” look like an “I” so the license plate spelled his name (Patrick) backwards. My dad had ordered his own vanity license plate and was waiting on its arrival, but my dad hadn’t even realized that Patrick had altered the current license plate. My dad had only had the car for a few weeks at most when sheriffs pulled him over, but (white) Patrick had driven the car with the altered license plates for years without any issues from police or sheriffs. A part of me wonders if some of the reason that the sheriffs reacted with such a show of force toward me and my father when they had not pulled Patrick over for the license plate issue was due to sheriffs’ reactions to seeing my Black dad driving a car that, even though it was repainted to be tan and brown, clearly used to be a California Highway Patrol cruiser.

After the sheriffs forced my dad to get out of the car and questioned him, he gave consent for them to search him and the car. On that day—as I sat on the curb, with my legs in the street and watched—I had my first real life lesson on encounters with the police as a Black person. My first lesson of how Black people interact with the police to try to remain unharmed was through this experience and stories of it after.

In separate sheriff cars, they took us both down to the station and harassed him for so long that my next meal came from the station vending machine. As a five year old with no understanding of the context, I remember thinking that the deputies were so nice for giving me that tuna fish sandwich. Because I was hungry. And had no parent or guardian with me. Because they took my dad and I to the station for no reason. Instead of giving him a simple fix-it ticket, they brought criminal charges against him. My parents had to hire a lawyer and pay hundreds of dollars just to get the charges dropped.

I wonder how many other Black children have similar firsts. My father later explained that, as a Black man in a Black, working class neighborhood with his child in the car, he thought that the best and safest way for him to handle the encounter was to give consent to whatever search the police requested. Looking back, I think that he was probably right. Because the deputies stopped us with such a show of force, it is hard to imagine them peacefully accepting a refusal to search. This was my first experience in what would become an oft-repeated role as a Black girl and later woman with Black boys and men (or other boys or men of color).7.I mention some of the role of sex/gender and race/ethnicity in my experiences with police. I do so only to share what patterns there have been in my experiences, not to erase or ignore the experiences of Black girls and women, other girls and women of color, transgender girls and women, other members of the LGBTQ+ community, people with mental health issues or disabilities, or any other group who tends to have a heightened risk of interactions with police and are too often on the receiving end of police violence.Show More Unfortunately, this type of experience is not unique for Black people in the United States. This interaction (along with many others) is a part of the experiences that I have drawn from as I make life decisions. It informs my scholarship, just as others’ life experiences inform their research agendas.

There are so many different directions in which this encounter could have gone. The direction that had worried my father most was that the sheriffs might have hurt or killed one or both of us, as has happened to so many other Black people. There may have been the possibility of criminal charges against the officers in that situation, but, depending on the circumstances and the political reality of the situation, there is a significant possibility that the only legal recourse left would have been civil litigation. But no civil claim against a law enforcement official or department would have been successful unless it survived summary judgment, a civil procedural hurdle.8.See, e.g., Shirin Sinnar, Civil Procedure in the Shadow of Violence, inA Guide to Civil Procedure: Integrating Critical Legal Perspectives [Pt. III: Procedure Immunizing Police Violence] (NYU Press) (Brooke Coleman, Suzette Malveaux, Portia Pedro, & Elizabeth Porter, eds., forthcoming 2022) (on file with author) (describing how the Supreme Court has used civil procedure, especially qualified immunity and summary judgment, to “immuniz[e] police violence”).Show More

In a country that is, in part, founded on white supremacy,9.Paul Finkelman, The Founders and Slavery: Little Ventured, Little Gained, 13 Yale J. L. & Human. 413, 427–45 (2001) (noting the Constitution’s direct and indirect protections of the enslavement of African and Black peoples through various clauses including, among others, the Three-Fifths Clause, the Slave Trade Clause, the Fugitive Slave Clause, the Domestic Insurrections Clause, and the Electoral College).Show More it can feel like a losing battle to try to identify and counteract the various factors and structures that contribute to Black people being harmed by, or dying at the hands of, police. In looking at one of my own areas of expertise, it is important to understand the ways in which civil procedure encourages and excuses police violence.10F10 10.See Sinnar, supra note 8.Show More When someone harmed by police (or the loved ones of someone harmed) brings suit to hold a police officer, a police department, or the city liable civilly (not criminally), the defendant (office, police department, city) may file a motion for summary judgment to ask that the judge decide the case in their own favor. Under Federal Rule of Civil Procedure 56, a judge should grant summary judgment only if there is no genuine dispute of material fact (such that the movant—here, the police officer, department, and city—is entitled to judgment as a matter of law).11 11.Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”).Show More According to precedent, when deciding a motion for summary judgment, judges must look at the record in the light most favorable to the non-moving party (the plaintiffs who police harmed or whose loved ones have been harmed) and must draw reasonable inferences in that party’s favor.12 12.Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).Show More Under the doctrine of qualified immunity, police officers, their departments, and the cities for which they work are immune from civil suit—meaning that they aren’t liable civilly—in certain circumstances. Qualified immunity protects the defendants from litigation if the officer did not violate a clearly established constitutional right.13 13.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).Show More Through civil procedural decisions against Black plaintiffs harmed by police, the Supreme Court has affirmed lower courts that have granted summary judgment because they found that defendants were protected by qualified immunity even when there was a genuine factual dispute that should have gone to the jury.14 14.See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (holding that a police officer did not violate the Fourth Amendment by deliberately ramming his car into the car of a motorist suspected of speeding); Sinnar, supra note 8 (noting that Scott v. Harris included a factual dispute that would ordinarily have gone to a jury and that the decision “has given lower courts greater latitude to immunize police officers rather than allow juries to decide whether an officer’s use of force was reasonable.”).It seems that no judge or justice mentioned Victor Harris’s race, Black—or the race of the officer (Timothy Scott, white) who rammed Harris’s car and rendered him quadriplegic—in any opinion. See Jeffrey W. Stempel, Taking Cognitive Illiberalism Seriously: Judicial Humility, Aggregate Efficiency, and Acceptable Justice, 43 Loy. U. Chi. L.J. 627, 642 (2012). vic2k3, Why I Ran., YouTube (Dec. 9, 2009), https://www.youtube.com/watch?v=‌JATVLUOjzvM (featuring interviews with Victor Harris and Timothy Scott) [https://perma.cc/3F4F-8CUM].Show More There might be much more if we dig beneath the surface to critically analyze civil procedure as a tool to reinforce racial subjugation.

A. Black Experiences with Police

Black people report a higher number of interactions with police (including police sightings) than the national average.15 15.Lydia Saad, Black Americans Want Police to Retain Local Presence, Gallup, 2020, news.gallup.com/poll/316571/black-americans-police-retain-local-presence.aspx21 (last visited Nov 3, 2020) [https://perma.cc/M5NT-44QR]. More Black people than white people report seeing police in our neighborhoods “often or very often.” Id.Show More More contacts between Black people and police means greater exposure of Black people to the “possibility of violence” at the hands of the police.16 16.Devon W. Carbado, Predatory Policing, 85 UMKC L. Rev. 545, 561 (2017); see also Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 128 (2017) (explaining “the significant ‘circuits of violence’ through which the ordinary (African Americans’ vulnerability to ongoing police surveillance and contact) becomes the extraordinary (serious bodily injury and death). . . . For there is a direct relationship between the scope of ordinary police authority, on the one hand, and African American vulnerability to extraordinary police violence, on the other.”); Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L. J. 1479, 1509–11 (2016) (further describing the Police Violence Model). The Police Violence Model of Professor Devon Carbado and Patrick Rock explains why a higher level of police interactions creates a higher risk of police violence for Black people:First, the simple fact of repeated police interactions overexposes African Americans to the possibility of police violence.Second, the fact that African Americans’ exposure to the police occurs against the background of stereotypes of African Americans as violent and dangerous increases the likelihood that police officers will interact with African Americans from the perspective that violent force is both necessary and appropriate.Third, the more exposed African Americans are to the police, the greater the probability that they will be arrested.Fourth, black peoples’ repeated exposure to the police potentially increases their incarceration rates or facilitates some form of system involvement, and the incarceration and system involvement of African Americans likely mediates how police officers interact with black people. . . .Fifth, the more numerous African Americans’ contacts with the police are, the more vulnerable African Americans are to a set of violence-producing insecurities or vulnerabilities police officers experience in the context of police encounters.Devon W. Carbado & Patrick Rock, What Exposes African Americans to Police Violence?, 51 Harv. C.R.-C.L. L. Rev. 160, 164–65 (2016).Show More Of reported experiences with police, over 40% of Black people’s experiences with police are not positive, while only 25% of white people’s reported experiences with police are not positive.17 17.Camille Lloyd, For Black Americans, 41% of Police Encounters Not Positive, Gallup (July 30, 2020), https://news.gallup.com/poll/316247/black-americans-police-encounters-not-positive.aspx (last visited Nov 3, 2020) [https://perma.cc/M5HX-8CGN].Show More Generally, Black people’s level of confidence in police differs from, and is lower than, white people’s level of confidence in the police more than those groups’ confidence levels differ on almost any other social institution.18 18.See Jeffrey M. Jones, Black, White Adults’ Confidence Diverges Most on Police, Gallup (Aug. 12, 2020), https://news.gallup.com/poll/317114/black-white-adults-confidence-diverges-police.aspx (last visited Nov 3, 2020) (noting that 56% of white adults say that “they have ‘a great deal’ or ‘quite a lot’ of confidence in the police” while only 19% of Black adults say the same) [https://perma.cc/5A3A-HB42]. “This 37-percentage-point racial gap is the largest found for any of 16 major U.S. institutions rated in Gallup’s annual Confidence in Institutions poll.” Id. There was only a gap of 5% or less in levels of confidence for half of rated institutions. Id. The only other institution for which Black and white respondents’ ratings are nearly as large is a 33-percentage-point gap in levels of confidence in President Trump’s administration. Id.Show More Perhaps in part because of these higher levels of exposure to police, higher levels of police encounters that aren’t positive, and lower levels of confidence in police, the Black Census Project reported that, in 2019, “[t]he vast majority of Black Census respondents see the excessive use of force by police officers (83 percent) and police officers killing Black people (87 percent) as problems.”19 19.Aaron Ross Coleman, How Black People Really Feel About the Police, Explained, Vox (June 17, 2020, 8:30 AM) https://www.vox.com/2020/6/17/21292046/black-people-abolish-defund-dismantle-police-george-floyd-breonna-taylor-black-lives-matter-protest [https://perma.cc/VCT2-4LSJ] (quoting More Black than Blue: Politics and Power in the 2019 Black Census, Black Futures Lab 8 (June 2019), https://blackfutureslab.org/wp-content/uploads/2019/06/Digital-More-Black-Than-Blue-2.pdf [https://perma.cc/NS9F-S68H]); see also Drew Desilver, Michael Lipka & Dalia Fahmy, 10 Things We Know About Race and Policing in the U.S., Pew Research Center, 2020, https://www.pewresearch.org/fact-tank/2020/06/03/10-things-we-know-about-race-and-policing-in-the-u-s/ (last visited Nov 3, 2020) [https://perma.cc/9QL9-LL5U]. 33% “of Black adults said that police in their community did an ‘excellent’ or ‘good’ job in using the right amount of force (compared with 75% of white[] [people]), treating racial and ethnic groups equally (35% vs. 75%), and holding officers accountable for misconduct (31% vs. 70%).” Id.Show More These experiences and perspectives of police are common among many Black people regardless of lines of class, education, and social opportunity. Professor Devon Carbado has shared how his own experiences with the police, even as an elite Black legal scholar, are fraught with “questions [that] are part of black people’s collective consciousness.”20 20.These questions are part of Black people’s collective consciousness:I have not, however, been able to normalize my experiences with the police. They continue to jar me. The very sight of the police in my rear view mirror is unnerving. Far from comforting, this sight of justice (the paradigmatic site for injustice) engenders feelings of vulnerability: How will I be over-policed this time? Do I have my driver’s license, insurance, etc.? How am I dressed? Is my UCLA parking sticker visible? Will any of this even matter? Should it?And what precisely will be my racial exit strategy this time? How will I make the officers comfortable? Should I? Will I have time—the racial opportunity—to demonstrate my respectability? Should I have to? Will they perceive me to be a good or a bad Black?Devon W. Carbado,(E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 952 (2002).Show More Recent attention called to police murdering Black people has “presented a readily discernible target around which to organize.”21 21.Crenshaw, Race, supra note 2, at 1384.Show More In the context of police killings and other extrajudicial killings of Black people, there is “enough similarity between [our] life experiences . . . to warrant collective political action.”22 22.Id. at 1384.Show More

B. Shared Experience with Policing as a Source of Black Collectivity and Mobilization to Support Black Interests and Lives

Personal experiences with, and data on, the policing of Black bodies in the United States may shed light on a collective experience among many Black people and, perhaps, more broadly, many people of color.23 23.I refer to “people of color” throughout this Essay intending to include Black, Latinx, Asian Americans, Native Americans, and other Indigenous peoples, Arab Americans, and other racialized groups (non-whites). I do so understanding that this term groups people who have some shared experiences, but the term might also be problematic in that it does not emphasize differences in how these various communities, and others within them, might experience racism and other sources of oppression. See Meera E. Deo, Why BIPOC Fails, 107 Va. L. Rev. Online 115, [Pt. II When Unity Leads to Erasure] (2021).Show More Policing is one area in which many of us continue to experience racism in similar debilitating and dangerous ways, often regardless of income, level of education, and access to other opportunities. The national spotlight, education, concern, and momentum galvanized by Summer 2020 mobilizations against police killings of Black people provides what may have become an otherwise increasingly rare opportunity for a Black collective identity24 24.See Angela Onwuachi-Willig,The Trauma of the Routine: Lessons on Cultural Trauma from the Emmett Till Verdict, 34 Socio. Theory 335 (2016) (discussing the ways in which a routine infliction of harm on a subordinated group can constitute collective trauma and cultural trauma); see also Jalila Jefferson-Bullock & Jelani Jefferson Exum, That Is Enough Punishment: Situating Defunding the Police Within Antiracist Sentencing Reform, 48 Fordham Urb. L.J. 625, 636–41 (2021) (discussing the ways in which Black people in the United States are experiencing a racial and cultural trauma from recent police killings of Black people).Show More and action supporting Black lives. Policing seems to be a great equalizer of what could otherwise be a fragmented Black society in the United States. Many of us (Black people) experience interactions with the police similarly to the extent that the experience remains one of collectivity and has become a central part of the essence of what it means to be Black—the ability to be murdered without cause and without redress. This moment of mobilized Black collectivity comes, however, at a time when prior civil rights victories for Black people and other marginalized communities continue to be threatened. A good understanding of the relationship between these two oppositional mobilizations can help anti-subordination litigants, lawyers, and scholars to maximize litigation victories and to minimize losses.

For Black people, this moment—of mobilized Black collectivity with the potential for interest convergence at the same time that past victories are threatened—is rare although not without precedent.25 25.See Richard Gergel, Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring 4–5 (2019) (describing how the acquittal of a white police chief in the beating and blinding of a Black World War II Army veteran prompted the presiding judge to issue a series of landmark civil rights decisions). See generally Richard Delgado, Why Obama?: An Interest Convergence Explanation of the Nation’s First Black President, 33 L. & Ineq. 345 (2015) (discussing the election of President Barack Obama as a moment of interest convergence between people of different backgrounds); William M. Carter, Jr., The Thirteenth Amendment and Interest Convergence, 71 Md. L. Rev. 21 (2011) (exploring interest convergence in the passage of the Thirteenth Amendment to the U.S. Constitution); Sheryll Cashin, Shall We Overcome? Transcending Race, Class, and Ideology Through Interest Convergence, 79 St. John’s L. Rev. 253, 255 (2005) (discussing interest convergence in the Civil Rights Era); Marisa Abrajano & Zoltan L. Hajnal, White Backlash: Immigration, Race, and American Politics 2 (2017) (discussing the interrelation between opinions on immigration and relations between racial and ethnic groups within the United States); Kevin M. Kruse, White Flight: Atlanta and the Making Of Modern Conservatism 13–15 (2013) (discussing the effect of desegregation and white flight on shifting political coalitions in Atlanta); Gregory S. Jacobs, Getting Around Brown: Desegregation, Development, and The Columbus Public Schools xii–xiii (1998) (discussing the interrelation between race, class, and politics in response to desegregation in Columbus, Ohio); see also Ta-Nehisi Coates, The First White President, The Atlantic (Oct. 2017), https://www.theatlantic.com/magazine/archive/2017/10/the-first-white-president-ta-nehisi-coates/537909/ [https://perma.cc/FE5H-4YTA] (discussing the coalition of white classes whose alignment culminated in the 2016 election of President Donald Trump).Show More A time of strong, shared, collective Black identity with the sociopolitical support to undo our structural subordination is singular, in part, because of the prior meaningful gains in opportunities for some Black people.26 26.Crenshaw, Race, supra note 2, at 1383–84.Show More Much of the formal symbolic subordination of Black people has been illegal and disallowed for longer than my lifetime.27 27.See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (finding that segregation in public schools violates the Equal Protection Clause even if physical facilities were relatively equal); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that a state violates the Fifteenth Amendment when it constructs jurisdictional boundary lines with the purpose of denying equal representation to Black voters); Bailey v. Patterson, 369 U.S. 31 (1962) (finding that states may not require racial segregation of transportation facilities); Civil Rights Act of 1964, Pub. L. no. 88-353, 78 Stat. 241 (1964) (outlawing literacy tests as a qualification for voting in federal elections unless certain protections were observed); Loving v. Virginia, 388 U.S. 1 (1967) (finding that statutes outlawing interracial marriage violated the Fourteenth Amendment and the Equal Protection and Due Process Clauses); Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq. (outlawing discrimination in the sale or rental of housing); Shelley v. Kraemer, 334 U.S. 1 (1948) (holding that racially restrictive covenants violate the Equal Protection Clause).Show More As Professor Kimberlé Crenshaw has noted, Black people may have lost much of our collectivity28 28.Crenshaw, Race, supra note 2, at 1383 n. 197: (“By ‘collectivity,’ I refer to the recognition of common interests and the benefits derived by Blacks of all classes in sharing the burdens of social struggle. The potential for collective struggle is maximized where the grievance is shared by all. It was clear that racial segregation, for example, affected all Blacks. The creation of opportunity for some Blacks—however small the number may be—can obscure the degree to which Blacks have common interests that warrant continual collective struggle.”).Show More due to the formal reforms of the civil rights victories.29 29.Id. at 1383–84.Show More The reforms of the civil rights movement made it so fewer Black people experience racism in collective ways that are similar to each other.30 30.Id.Show More This is particularly true for Black people with greater access to capital than others. The formal end of the apartheid regime in the United States left Black people more fractured because those reforms let some of us improve our material situations much more than others.31 31.Id. at 1381–84.Show More

While many of the current efforts to protect Black lives will aim at changing police training, defunding police, or abolishing police, much of this effort inspired by the Movement for Black Lives will also aim at compensating Black people and our families through the legal process.32 32.See, e.g., Amna A. Akbar, Law’s Exposure: The Movement and the Legal Academy, 65 J. Legal Educ. 352, 357–58, 370 n.73 (2015); Kwadwo Frimpong, Black People Are Still Seeking Racial Justice—Why and What to Do About It, Brookings Inst. (Nov. 12, 2020), https://www.brookings.edu/blog/how-we-rise/2020/11/12/black-people-are-still-seeking-racial-justice-why-and-what-to-do-about-it/ [https://perma.cc/3E6E-4ZC3].Show More Historically, demands of movements inspired by Black collective identity are not typically limited to ending one singular condition or phenomenon (such as police murders of Black people), but also traditionally insist on the inclusion of Black people in the U.S. “political imagination,” even beyond policing.33 33.Crenshaw, Race, supra note 2, at 1365.Show More

II. The Current Import of a Critical Race Theoretical
Account of Civil Procedure

There is arguably not yet a “Whiteness as Procedure,”34 34.See Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1714 (1993).Show More an “(E)racing the Fourth Amendment,”35 35.See Carbado, supra note 20.Show More or a critical race civil procedure term as ubiquitous as intersectionality36 36.See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 141–52.Show More is in constitutional law and civil rights. A primary purpose of critical race theory is to “reveal[] the ways in which racial subordination is embedded in social structures and bureaucracies.”37 37.Portia Pedro, Forging Fortuity Against Procedural Retrenchment: Developing a Critical Race Theoretical Account of Civil Procedure, inA Guide to Civil Procedure: Integrating Critical Legal Perspectives (NYU Press) (Brooke Coleman, Suzette Malveaux, Portia Pedro, & Elizabeth Porter, eds., forthcoming 2022) (on file with author).Show More Within law and litigation, civil procedure provides the structure for deciding who can bring a claim to court to request a remedy for the harms that they have suffered. To prevent civil procedure from reinforcing, or continuing to reinforce, racial subjugation, we need to understand how these seemingly technocratic or neutral rules and doctrine are already deployed in ways that reinforce existing hierarchies including white supremacy. Part of this project is to develop an understanding of what I call “procedural identity”—how aspects of identity, including race, sex, gender identity, sexual orientation, disability, and religion have affected (and been affected by) procedural standards. Mapping out procedural identity within civil procedure could be an impetus for changing procedural standards in a way that prevents further subjugation of marginalized groups.

In this Essay, I do not attempt to resolve the longstanding debate over the legitimacy or efficacy of rights discourse.38 38.For descriptions of, and views on, the legitimacy and efficacy of rights discourse, see Crenshaw, Race, supra note 2, at 1381.Show More But civil rights reform may play a role in the continued subordination of Black people by “creat[ing] the illusion that racism is no longer the primary factor responsible for the condition of the Black underclass.”39 39.Id. at 1381. (“[T]he very transformation afforded by legal reform itself has contributed to the ideological and political legitimation of continuing Black subordination.”); see also Bernard E. Harcourt, Foreword: “You Are Entering a Gay and Lesbian Free Zone”: On the Radical Dissents of Justice Scalia and Other (Post-) Queers. [Raising Questions About Lawrence, Sex Wars, and the Criminal Law], 94 J. Crim. Law & Crimin. 503, 510 (2004). (arguing that “to properly understand Lawrence—and other sex and cultural wars—we need a much finer grained understanding of sexual projects and of the fragmentation of those projects.”).Show More Civil rights reform may have increased “access to the dominant framework”40 40.Harcourt, supra note 39, at 534.Show More without challenging, questioning, or changing the underlying subordination.

A critical race analysis of civil procedure within the context of police violence reveals areas of procedure that generally will not provide justice for Black people harmed by police. Some of those doctrinal areas, such as summary judgment in police brutality cases, do not need reform. They need radical transformation. Although civil rights litigation may provide relief to some Black people (and others) harmed by police, there is still a need for something akin to a “politics of spleen”41 41.Although I attempt to give something of a definition of “politics of spleen” in the text, I worry that there is still something lost in the summary that might be better described in a quotation:Perhaps the best or only way to express this politics, then, is through a pastiche of post-queer venom. It has something to do with “the intense charge that comes with transgression and the pleasure of that transgression.” It involves “an alternate culture in and around it, to be taken seriously, and left alone.” It is a “boundary-free zone in which fences are crossed for the fun of it, or simply because some of us can’t be fenced in. It challenges either/or categorizations in favor of largely unmapped possibility.” It is nostalgic, transgressive, full of hope and hopeless at the same time.Id. at 534. (internal citations omitted). Something in this reminds me of what I’ve read about the Black Panther Party and other Black people armed in self-defense and fighting for liberation, but much of that was before my time, so I am not sure where these experiences differ and converge.Show More that others have described for the LGBTQ community.42 42.Harcourt, supra note 39, at 534.Show More A “politics of spleen” incorporates “the need to transgress limits that do not make room for all of us.”43 43.Harcourt, supra note 39, at 532 (quoting Carol Queen & Lawrence Schimel, Introduction to PomoSexuals: Challenging Assumptions about Gender and Sexuality 19, 21–23 (Carol Queen & Lawrence Schimel eds., 1997)).Show More

Perhaps more post-slavery Black people living in the segregated, apartheid, Jim Crow era had a similar sort of politics of spleen. The existence and life of a free Black person explicitly threatened the fundamental sociopolitical and cultural structure of the United States and was, in and of itself, a transgression. This politics of spleen might help to explain why numerous Black people and organizations thought that the only way that Black people would be fed,44 44.See, e.g., Husain Lateef & David Androff, “Children Can’t Learn on an Empty Stomach”: The Black Panther Party’s Free Breakfast Program, 44 J. Soc. & Soc. Welfare 3 (2017); Erin Blakemore, How the Black Panthers’ Breakfast Program Both Inspired and Threatened the Government, History (last updated Jan. 29, 2021), history.com/news/free-school-breakfast-black-panther-party [https://perma.cc/8Q98-LE2Z]; History.com Editors, Black Panthers, History (last updated Jan. 26, 2021), history.com/topics/civil-rights-movement/black-panthers [https://perma.cc/KU4P-9YK2].Show More that Black children would learn,45 45.See, e.g., Hakim M. Rashid & Zakiyyah Muhammad, The Sister Clara Muhammad Schools: Pioneers in the Development of Islamic Education in America, 61 J. Negro Ed. 178 (1992).Show More that Black people would be gainfully employed,46 46.See, e.g., Nafeesa Muhammad, The Nation of Islam’s Economic Program, 1934-1975, Blackpast (Apr. 1, 2020), https://www.blackpast.org/african-american-history/the-nation-of-islams-economic-program-1934-1975/ [https://perma.cc/XT27-W9CZ].Show More and that Black people would be safe47 47.See, e.g., Lateef & Androff, supra note 44, at 11.Show More was if we took those responsibilities upon ourselves and did not expect the liberal state to embrace us.

That we may have lost this politics of spleen in the context of police violence through assimilationist civil rights reform might have been unavoidable in some ways. As Professor Bernard Harcourt has described, “the politics of spleen may be fundamentally unstable in the criminal law context.”48 48.Harcourt, supra note 39, at 548–49.Show More It may be that the politics of spleen only existed in its true form in the U.S. LGBTQ community before Lawrence v. Texas,49 49.539 U.S. 558 (2003).Show More which held that a state criminal prohibition on sodomy was unconstitutional,50 50.Id. at 578–79, 585.Show More because “who in their right mind would want to live in fear of criminal prosecution” and “how would they justify imposing that fear on others? . . . Perhaps the politics of spleen, in reality, is nothing more than a coping mechanism—a way of making the best of a terrible situation.”51 51.Harcourt, supra note 39, at 548–49.Show More If the politics of spleen is also fundamentally unstable in the context of police killings of, and violence inflicted upon, Black people, then much of the discussions about protecting Black lives through law will center on a civil rights framework.

Because liberal reform has given us some of the rights toward inclusion in the U.S. political experience and imagination, demands and goals of the activity galvanized by the Movement for Black Lives will not all be extra-institutional.52 52.Akbar, supra note 32, at 358. (noting that the Movement for Black Lives has protested inequality in the law while also calling for special prosecutors, civilian review boards, and police indictments in response to police killings of Black people).Show More While some organizers are calling for police abolition, prison abolition, or both, there is not a widespread call for abolishing courts. Or at least there is not such a call yet. Several reforms and goals will be within institutions and especially within the courts.53 53.Challenges and demands made from outside the institutional logic would have accomplished little because Blacks, as the subordinate “other,” were already perceived as being outside the mainstream. The struggle of Blacks, like that of all subordinated groups, is a struggle for inclusion, an attempt to manipulate elements of the dominant ideology to transform the experience of domination. It is a struggle to create a new status quo through the ideological and political tools that are available.Crenshaw, Race, supra note 2, at 1386; see alsoMichael D. White, Henry F. Fradella, Weston J. Morrow & Doug Mellom, Federal Civil Litigation as an Instrument of Police Reform: A Natural Experiment Exploring the Effects of the Floyd Ruling on Stop-and-Frisk Activities in New York City, 14 Ohio St. J. Crim. L. 9, 35–46 (2016) (discussing how “federal courts are often called upon” to address discriminatory stop-and-frisk police practices against Black people); Paul Burstein, Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity, 96 Am. J. Soc. 1201, 1204 (1991) (“It is, in fact, impossible to understand the American struggle for equal opportunity without focusing on the courts and on activities intended to influence judicial decisions.”).Show More

I admit the possible futility in ever attempting to use “the master’s tools” to “dismantle the master’s house.”54 54.SeeAudre Lorde, The Master’s Tools Will Never Dismantle the Master’s House, in Sister Outsider 110 (1984).Show More But generations of lawyers and legal scholars have engaged in litigation and legal scholarship in attempts to prevent the continued or further subjugation of Black people and others, so it hardly seems outside of expectation to attempt to prevent civil procedural rules and doctrine from being deployed to maintain or further subjugate marginalized people.

Moreover, the law itself is not “the master’s tools.” Civil procedure only becomes “the master’s tools” if we allow procedural doctrine, rules, and mechanisms to be deployed in a way that reinforces white supremacy, misogyny, homophobia, ableism, bigotry, etc. Activist, poet, and social and feminist theorist Audre Lorde questioned and answered, “What does it mean when the tools of a racist patriarchy are used to examine the fruits of that same patriarchy? It means that only the most narrow perimeters of change are possible and allowable.”55 55.See id. at 110–11.Show More In this statement, Lorde was not disavowing every use of any existing social structure or institution. Instead, Lorde was saying that a conference on feminist theory that did not include “significant input from poor women, Black and Third World women, and lesbians” was “sad, in a country where racism, sexism, and homophobia are inseparable.”56 56.See id. at 110.Show More That the conference planners deployed “the tools of a racist patriarchy”—racism, classism, and homophobia—when they put together discussions on feminist theory guaranteed that they would not be moving toward genuine change.57 57.See id. at 110–12.Show More Attempting to use the law and civil procedure to bring about equity and social transformation for Black people and other marginalized communities is not using “the master’s tools”; it’s struggling against them.58 58.See id. at 112 (discussing learning “how to make common cause with those others identified as outside the structures in order to define and seek a world in which we can all flourish” as part of a way to “bring about genuine change”).Show More To wage these fights (particularly litigation to hold police accountable),59 59.See Sinnar, supra note 8.Show More we need to develop an understanding of the relationship between racial subordination and civil procedure. If that understanding shows that civil procedure, portions of it, or the entirety of the U.S. federal court system is intractably reinforcing white supremacy (or any other type of group subordination), then perhaps there should be calls to abolish those portions of procedure (or the entire court system) along with ideas of what rules, doctrines, or types of structures we should have instead.

A. Potential Reasons for the Underdevelopment of the Discussion

There is less of a comprehensive theoretical description of the mutually constitutive and reinforcing relationship between civil procedure and racial subjugation or white supremacy than exists in some other areas.60 60.For civil procedure, see Roy Brooks, Critical Procedure (1998) (applying a criticalist theory approach to investigate the subordination of “outsider” groups like people of color and women in civil procedure). For corporations, see Richard R.W. Brooks, Incorporating Race, 106 Colum. L. Rev.2023 (2006) (discussing the implications of recent court decisions ruling that corporations possess racial identities “as a matter of law”). For criminal procedure, see Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002); Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 250 (1991); Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 392 (1998). For antidiscrimination and constitutional law, see T. Alexander Aleinikoff, The Constitution in Context: The Continuing Significance of Racism, 63 U. Colo. L. Rev. 325, 326 (1992); Kimberlé Williams Crenshaw, Race, supra note 2, at 1335 (1988); Eric Schnapper, Perpetuation of Past Discrimination, 96 Harv. L. Rev. 828, 831 (1983); Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049, 1050 (1978). For evidence law, see Jasmine B. Gonzales Rose, Toward a Critical Race Theory of Evidence, 101 Minn. L. Rev.2243 (2017) (explaining how evidence law and practice disadvantage people of color). For tax, see Andre L. Smith, Tax Law and Racial Economic Justice: Black Tax 1 (2015) (discussing the role of tax law in redistributing wealth from Black to white persons); Critical Tax Theory: An Introduction (Anthony C. Infanti & Bridget J. Crawford, eds., 2009) (revealing how facially “neutral” tax laws contribute to racial subordination); David Brennen, Race and Equality Across the Law School Curriculum: The Law of Tax Exemption, 54 J. Legal Educ. 336–37 (2004); Beverly I. Moran & William Whitford, A Black Critique of the Internal Revenue Code, 1996 Wis. L. Rev. 751 (1996) (arguing that the tax code systematically favors white over Black persons); Dorothy A. Brown, Race, Class, and Gender Essentialism in Tax Literature: The Joint Return, 54 Wash. & Lee L. Rev. 1469, 1471 (1997). For property, see Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1714 (1993). For election law and voting rights, see Lani Guinier, Groups, Representation, and Race-Conscious Districting: A Case of the Emperor’s Clothes, 71 Tex. L. Rev. 1589, 1641–42 (1993); Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 Harv. L. Rev. 1663, 1670 (2001).For examples specific to teaching, see Dorothy A. Brown, Critical Race Theory: Cases, Materials, and Problems (3rd ed. 2013); Kevin R. Johnson, Integrating Racial Justice into the Civil Procedure Survey Course, 54 J. Legal Educ. 242 (2004); Taunya Lovell Banks, Teaching Laws with Flaws: Adopting a Pluralistic Approach to Torts, 57 Mo. L. Rev.443 (1992).Show More Critical Race Theory (CRT) might be underdeveloped in civil procedure because it could seem to be the most technical, objective legal discourse, an area of “perspectivelessness.”61 61.It would seem that someone could easily assume that procedural rules embody the most technical, objective legal discourse and that no “particular perspective in legal analysis” and “no specific cultural, political, or class characteristics” have any relevance. Kimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 Nat’l Black Law J. 1, 2–3 (1989), (defining “perspectivelessness” as the dominant mode of white, middle class beliefs).Show More One could easily assume that “no specific cultural, political, or class characteristics” have any relevance for procedure and that procedural arguments and decisions come from no “particular perspective in legal analysis.”62 62.Id. at 2.Show More It might seem that discussions of racial justice would fall largely or exclusively within the domain of constitutional law, criminal law, or criminal procedure. Additionally, proceduralists might be less likely to realize the importance of racial subordination in procedure.

Perhaps in part due to the absence of a comprehensive scholarly theoretical account of racial implications of procedure, most civil procedure classes might not discuss the relationship between racial subordination and civil procedure. Scholars might be less likely to recognize and build upon the roles of race and identity in procedure if those topics haven’t been a part of their procedural discussions beginning at least in law school.

CRT in civil procedure might be underdeveloped because many (white) scholars and professors may only realize, or think that they should discuss, the importance of racial subordination in procedure if they’ve found what I refer to as a “Magical Negro”63 63.See Matthew W. Hughey, Cinethetic Racism: White Redemption and Black Stereotypes in “Magical Negro” Films, 56 Soc. Probs. 543, 544 (2009).Show More case, casebook, or scholarly topic. The Magical Negro is a term popularized by film director Spike Lee64 64.Andrea Freeman, Unmothering Black Women: Formula Feeding as an Incident of Slavery, 69 Hastings L.J. 1545, 1589 (2018); Susan Gonzalez, Director Spike Lee Slams ‘Same Old’ Black Stereotypes in Today’s Films, 29 Yale Bulletin, Mar. 2, 2001, http://archives.news.yale.edu/v29.n21/story3.html [https://perma.cc/Y2GD-8WMH].Show More that describes a stereotypical, supporting Black movie character “who, through their special insight or mystical powers, aids the white main character in his or her character development.”65 65.I. Bennett Capers, Afrofuturism, Critical Race Theory, and Policing in the Year 2044, 94 N.Y.U. L. Rev. 1, 12–13 n.56 (2019) (citing Cerise L. Glenn & Landra J. Cunningham, The Power of Black Magic: The Magical Negro and White Salvation in Film, 40 J. Black Stud. 135, 135 (2009)).Show More The Magical Negro’s powers “are used to transform disheveled, uncultured, lost, or broken white characters into competent, successful, and content people within the context of the American myth of redemption and salvation.”66 66.DeShayla M. Strachan, The Triple Threat: The Black, Female Attorney, 11 S.J. Pol’y & Just. 112, 119 (2017); see also Osamudia R. James, Valuing Identity, 102 Minn. L. Rev. 127, 148 n.98 (2017).Show More In much the same way of the Hollywood stereotype, the race-relevant case, casebook, or topic might only be good enough to play, at best, a supporting role, to all of the white-perspective or seemingly neutral cases if the race-relevant case is perfect or “saintly” and the material would serve the “sole purpose” of enriching the white cases around it.67 67.Freeman, supra note 64, at 1589.Show More

Even if this comparison may be somewhat extreme, civil procedure scholars don’t seem to set anywhere nearly as high of a standard for non-race relevant (or non-marginalized group relevant) cases, casebooks, or topics. We are always supposed to look for and to discuss fairness, efficiency, and other ostensibly identity-neutral concepts seen as central to procedure, but some procedural scholars might only consider the role of race and racial subordination within procedure if someone presents them with the “Magical Negro” case, casebook, or topic. Such absurdly high expectations for cases or scholarly projects that prompt thought about racial subordination could guarantee that some professors who think of themselves as supportive of racial equality, and as against racial subordination, might never engage race-relevant materials in their scholarship, classes, or litigation.

Some scholars may hesitate to explore race (or other aspects of identity) and subordination within procedure unless a perfect opportunity presents itself—either the perfect “race” scholarship project, the perfect case, or the perfect casebook. For teaching, there are numerous civil procedure cases,68 68.See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009) (establishing a plausibility standard for pleadings in a case involving a Muslim, Pakistani litigant alleging top government officials were liable for discriminatory treatment and abuse in prison); Lassiter v. Dept. of Soc. Servs., 452 U.S. 18 (1981) (finding that the due process clause did not require the state to appoint an attorney for indigent parents in danger of losing their parental rights in a case involving an indigent, Black mother); Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) (holding that the party asserting summary judgment has the burden of showing a lack of factual controversy where a lunch counter had won on summary judgment after turning a teacher and Black students away and having them arrested); Scott v. Harris, 550 U.S. 372 (2007) (holding that a police officer did not violate the Fourth Amendment by deliberately ramming his car into the car of a motorist suspected of speeding); Hansberry v. Lee, 311 U.S. 32 (1940) (holding that res judicata may not bind plaintiffs who had no opportunity to be represented in earlier actions in a case involving racially restrictive covenants that barred Black persons from owning or leasing land); Martin v. Wilks, 490 U.S. 755 (1989) (allowing white firefighters to challenge consent decrees meant to ensure that Black people would be hired as firefighters in Birmingham, Alabama); Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010) (holding that a Black homeowner’s complaint alleging Fair Housing Act violation met the plausibility pleading standards articulated by Iqbal).Show More doctrines,69 69.For example, due process, the right to counsel, pleading standards and motions to dismiss, peremptory challenges, and class actions.Show More casebooks,70 70.For example, Stephen N. Subrin, Martha L. Minow, Mark S. Brodin, Thomas O. Main & Alexandra Lahav, Civil Procedure: Doctrine, Practice, and Context 1188 (5th ed. 2016), which includes a significant case file (that is integrated in problems and discussions throughout the book) for Warner v. City of New York, a class action challenging an allegedly racially discriminatory policing stop-and-frisk policy that is based on Floyd v. City of New York (Floyd III), 861 F. Supp. 2d 274 (S.D.N.Y. 2012).Show More and other materials71 71.See, e.g., Kevin M. Clermont, ed., Civil Procedure Stories (2d ed. 2008) (providing a deeper understanding of significant civil procedure cases, including the social and factual backgrounds).Show More discussing race.72 72.See Johnson, supra note 60 at 242 (2004).Show More When presented with materials to use that are relevant to race and racial justice, some professors require that any race-relevant material meet standards far beyond that which they require for any other class material. As examples, some professors would be happy to teach materials that involve race in civil procedure if there were a single race-relevant case that they could use to teach every section of the syllabus. Others would only want to engage with racial subordination in the classroom if there were an accompanying novel specifically about the case to assign the class. And others still would only teach or think about race in civil procedure if the relevant material were integrated in their preferred casebook (which doesn’t include the material). Civil procedure professors who want to engage with cases and doctrine that relate to racial injustice should stop this pretense of a search for the mythical “Magical Negro” case, casebook, or scholarly project. Our jobs as scholars and teachers include learning, teaching, and building scholarly projects around different complicated ideas and concepts. If we have put in the time, or sought out resources, to learn about law and economics or any other type of framework and we incorporate that into our classrooms or scholarship, then we could and should do the same with race, racism, and racial subordination. If we aren’t thinking, teaching, or writing about how civil procedure affects Black people and other marginalized groups, we are likely cultivating generations of lawyers, scholars, legal instructors, and judges who accept and promote the dominant white hegemonic view of procedure as neutral and we are marginalizing students who know better.

B. Why Now?

Some may wonder if there is less of a need to fight against the subjugation of marginalized groups now that Donald Trump is no longer in office. But the threat of racial subordination does not end solely based on a Democrat (in the current time, President Joe Biden) or someone other than Donald Trump having won the 2020 presidential election. While Donald Trump serves as a lightning rod or focal point in the current public resurgence of white supremacy and movements to strip marginalized groups of rights, privileges, and benefits,73 73.See, e.g., Kevin Roose, What Is QAnon, the Viral Pro-Trump Conspiracy Theory?, N.Y. Times (Oct. 19, 2020), https://www.nytimes.com/article/what-is-qanon.html [https://perma.cc/4V69-GYXM]; Russell Berman, Trump Fails the QAnon Test, The Atlantic (Oct. 15, 2020), https://www.theatlantic.com/politics/archive/2020/10/trump-qanon-denounce/616751/ [https://perma.cc/56J7-Q9PG]; Alex Kaplan, Trump has Repeatedly Amplified QAnon Twitter Accounts. The FBI Has Linked the Conspiracy Theory to Domestic Terror, Media Matters (Jan. 11, 2021, 4:30 PM), https://www.mediamatters.org/twitter/fbi-calls-qanon-domestic-terror-threat-trump-has-amplified-qanon-supporters-twitter-more-20 [https://perma.cc/8CY6-VV2N]; Sarah McCammon, From Debate Stage, Trump Declines to Denounce White Supremacy, NPR (Sept. 30, 2020, 12:37 AM), https://www.npr.org/2020/09/30/918483794/from-debate-stage-trump-declines-to-denounce-white-supremacy [https://perma.cc/7DDU-GGJ5]; Matt Pearce, Q&A: What Is President Trump’s relationship with far-right and white supremacist groups?, L.A. Times (Sept. 30, 2020, 7:42 PM), https://www.latimes.com/politics/story/2020-09-30/la-na-pol-2020-trump-white-supremacy [https://perma.cc/9E88-AW92]; Sarah Mizes-Tan, Experts Warn The Threat of Violence From Far-Right Groups Can Impact Racial Progress, CapRadio (Oct. 27, 2020), https://www.capradio.org/articles/2020/10/27/experts-warn-the-threat-of-violence-from-far-right-groups-can-impact-racial-progress/ [https://perma.cc/G3KC-VL57].Show More the potential attempt to retrench civil rights and maintain marginalization of various communities does not necessarily depend on Trump being President, there being a Republican president, or Republicans having control of Congress. As President, Trump issued several executive orders,74 74.See, e.g., Exec. Order No. 13769, 82 Fed. Reg. 8977 (January 27, 2017) (“Protecting the Nation From Foreign Terrorist Entry Into the United States.”) (enacting what was dubbed a “Muslim Ban”; Exec. Order No. 13780, 82 Fed. Reg. 13209 (March 6, 2017) (“Protecting the Nation From Foreign Terrorist Entry Into the United States.”) (functioning practically as another “Muslim Ban”); Exec. Order No. 13798, 82 Fed. Reg. 21675 (May 4, 2017) (“Promoting Free Speech and Religious Liberty.”) (potentially giving religious organizations a greater ability to discriminate against women and members of the LGBT community); Exec. Order No. 13950, 85 Fed. Reg. 60683 (September 22, 2020) (“Combating Race and Sex Stereotyping.”) (preventing discussions of critical race theory, white privilege, and systemic racism and sexism in some diversity trainings).Show More rules/regulations,75 75.See, e.g., Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 85 Fed. Reg. 44811 (proposed July 24, 2020) (allowing shelters to declare the gender of people staying at sex-segregated shelters and allowing or encouraging discrimination against and endangerment of trans women and men); Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority 85 Fed. Reg. 37160 (June 19, 2020) (changing definitions within the Affordable Care Act’s nondiscrimination provision to remove the definition of “on the basis of sex” in order to no longer include, and protect against discrimination on the basis of, gender identity or sexual orientation); Adoption and Foster Care Analysis and Reporting System, 85 Fed. Reg. 28410 (proposed May 12, 2020) (to be codified at 45 C.F.R. Pt. 1355) (eliminating collection of sexual orientation date on foster youth/adoptive parents); Student Assistance General Provisions, The Secretary’s Recognition of Accrediting Agencies, The Secretary’s Recognition Procedures for State Agencies 84 Fed. Reg. 58834 (November 1, 2019) (preventing HHS from enforcing, and planning to repeal, regulations prohibiting discrimination based on gender identity and sexual orientation in all HHS grant programs).Show More and other policies76 76.See, e.g., Memorandum for the Secretary of Commerce, Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44679 (July 21, 2020) (instructing Commerce Secretary to remove immigrants without legal status from the count for congressional apportionment); Notice, Designating Aliens for Expedited Removal 84 Fed. Reg. 35409 (July 23, 2019) (expanding the scope of expedited removal of undocumented immigrants); Memorandum for the Secretary of Defense and the Secretary of Homeland Security, 82 Fed. Reg. 41319 (Aug. 25, 2017) (banning transgender individuals from serving in the military); Office of Management and Budget Memorandum M-20-37, Ending Employee Trainings that Use Divisive Propaganda to Undermine the Principle of Fair and Equal Treatment for All (Sept. 28, 2020); Memorandum M-20-34, Training in the Federal Government (Sept. 4, 2020) (instructing agencies “to begin to identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’ or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil” and “begin to identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.”).Show More that likely would never have been issued by a president who was a Democrat or a different or more moderate Republican, but the power to be gained or solidified through a renewed white supremacist silent covenant likely would and will remain.77 77.For as much as it seems that Donald Trump has changed something about the character of this country, the truth is he hasn’t. What is terrible about Trump is also terrible about the United States. Everything we’ve seen in the last four years — the nativism, the racism, the corruption, the wanton exploitation of the weak and unconcealed contempt for the vulnerable — is as much a part of the American story as our highest ideals and aspirations.Jamelle Bouie, Don’t Fool Yourself. Trump Is Not an Aberration, N.Y. Times (Oct. 30, 2020), https://www.nytimes.com/2020/10/30/opinion/trump-presidents-history.html:[https://perma.cc/4ZD8-Z9EL].According to Professor Derrick Bell’s concept of involuntary sacrifice:To settle potentially costly differences between two opposing groups of whites, a compromise is effected that depends on the involuntary sacrifice of black rights or interests. Even less recognized, these compromises (actually silent covenants) not only harm blacks but also disadvantage large groups of whites, including those who support the arrangements. Examples of this involuntary racial-sacrifice phenomenon abound and continue. A few of the more important are: the slavery understandings, the Constitution, universal white male suffrage, the Dred Scott v. Sandford case, the Hayes-Tilden compromise, and the southern disenfranchisement compromise.Derrick Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform 29 (2005). See also Pedro, supra note 37 (“The involuntary sacrifice comes at a time when white people are divided and need to be reunited across class or other lines, so they reunite by taking something away from Black people or other marginalized groups. Given current high levels of polarization, it seems that we are currently in such a time.” (internal citations omitted)).Show More Additionally, the perceived threat to whiteness of a soon to be majority people of color country and society and the ideal privileges that do, or in some minds should, accompany whiteness may drive intensified action now.78 78.Angela Onwuachi-Willig, Policing the Boundaries of Whiteness: The Tragedy of Being “Out of Place” from Emmett Till to Trayvon Martin, 102 Iowa L. Rev. 1113, 1154–56, 1168–70 (2017).Show More


Some may believe that civil procedural standards operate in a neutral, identity-free zone and that judges don’t care about litigants’ identities, or their positions within the sociopolitical hierarchy, when deciding procedural issues. But judges are not oblivious to racial identity or its proxies in procedural decisions any more than they are in substantive contexts. Even the perception of, or the attempt to be, oblivious to identity could be another way to allow harmful assumptions to thrive.

Interaction with police cuts across socioeconomic differences within the Black community. We are still at risk of being murdered in extralegal ways. An important step in actualizing some of the goals to protect Black lives is to understand, and work to undo, the ways in which civil procedural doctrine and mechanisms have been deployed to reinforce racial subordination (and the subjugation of other marginalized groups).

Taxing Nudges

Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often produce significant responses at a low cost. The theory behind nudges is that, rather than mandating certain behaviors or providing costly economic subsidies, modest initiatives may “nudge” individuals to choose desirable outcomes by appealing to their behavioral preferences. For example, automatically enrolling workers into savings plans as a default, rather than requiring them to actively sign up, has dramatically increased enrollment in such plans. Similarly, allowing individuals to earn “wellness points” from attendance at a gym, redeemable at various retail establishments, may improve exercise habits.

A successful nudge should make a desired choice as simple and painless as possible. Yet one source of friction may counteract an otherwise well-designed nudge: taxation. Under current tax laws, certain incentives designed to nudge behavior are treated as taxable income. At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.

This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It describes the emergence of a disjointed tax regime that exempts private party nudges, but taxes identical incentives that come from the government. What is more, an incentive structured as a government grant may be taxable while an economically identical tax credit is not. The Article then proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. Specifically, lawmakers should reverse the default rule that all government transfers are taxable, and instead exclude government transfers from income unless otherwise provided by the Tax Code.


Imagine that every ten years, a flood decimates the banks of a river, destroying homes and other buildings in its wake. Each time, the flood causes millions of dollars of damage and leaves some people homeless or jobless. The local government incurs enormous costs in the aftermath to clean up damage and provide subsidies to victims.

Now imagine that experts determine that a measure can be taken to “flood proof” homes and other buildings. The measure costs several thousand dollars per building, but this pales in comparison to the cost of cleaning up flood damage. Naturally, policymakers would be eager to encourage residents along the riverbank to undertake the improvements. But people tend to be present-biased and discount future harms, and the residents are unmotivated to make the improvements.1.See infra Subsection I.B.6.Show More What can policymakers do?

One option would be to mandate flood proofing and penalize those who do not do it. But this would be politically unpopular and entail enforcement costs. Another option would be simply to pay for the flood proofing for each resident; but this may be cost prohibitive.

There may be a third option, however. Suppose that lawmakers decide to offer a small carrot—a “nudge”—to encourage people to flood proof their homes. They might, for example, offer a modest cash reward—say $300—for doing so. Or they might offer to provide a warranty for any flood damage incurred after the improvement is made. The small nudge may be enough to motivate people to flood proof their homes. If the nudge is effective, the government might succeed in protecting its residents’ homes at a fraction of the cost of using penalties or paying for the improvements outright.

Nudges are an increasingly popular policy tool in many contexts. Insights from behavioral economics reveal that people’s irrational tendencies may lead them to make suboptimal decisions, such as failing to flood proof their homes, opting not to save for retirement, or not applying to college. For example, people’s failure to save for retirement is often just due to sheer inaction—what researchers call “status quo bias,” 2.See infra note 15 and accompanying text.Show More rather than any rational decision about how to spend one’s money. Making retirement savings easier by defaulting people into savings plans is an example of a simple nudge that achieves a desired policy at a low cost.

The term “nudge” was famously coined by Professors Richard Thaler and Cass Sunstein to describe an intervention that “alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives.”3.Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 6 (2d ed. 2009).Show More Nudges might make a desired choice easier or simpler for people, they might help people overcome bad habits like procrastination, or they may simply provide people with better information.4.Cass R. Sunstein, Misconceptions About Nudges, 2 J. Behav. Econ. for Pol’y 61, 61 (2018).Show More Governments around the world have increasingly used nudges to enact cost-effective policies to improve the welfare of their citizens.

Nudges come in many forms: shifting defaults, like in the case of savings plans; sending people text message reminders to apply for college financial aid; or simplifying instructions on forms. Other nudges provide small incentives, like cash rewards or “wellness points” one might earn for achieving health goals. Regardless of the form of a particular nudge, it should make a desired choice as simple and painless as possible.

Yet one source of friction may counteract an otherwise well-designed nudge: taxation.

Under current tax laws, certain incentives aimed at nudging behavior are treated as taxable income. While nudges like defaults or text message reminders do not have tax consequences, nudges that provide an economic benefit to the recipient may be taxable. This is true regardless of whether the benefit comes in the form of cash, property, or services. For example, if a local government offers its citizens a $300 reward for flood proofing their homes, that grant would be subject to federal income taxation.

At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. It may be particularly counterintuitive to people that government grants would be subject to tax. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. For example, homeowners may decide to forego a cash reward for flood proofing their home because they do not want to deal with the hassle of reporting it or because they do not want to attract scrutiny from the IRS. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.

This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It first describes the emergence of a disjointed tax regime that often exempts nudges that come from private parties, but taxes identical incentives that come from the government. As a default, the tax law generally treats all economic benefits as taxable income. However, broad exceptions exist for certain incentives provided by employers to their employees, which are often classified as nontaxable fringe benefits. Similarly, incentives paid by nonprofits to individuals are likely to be treated as nontaxable gifts. Nudges provided by businesses to paying customers are also exempt from tax under the judicially created “purchase price adjustment” doctrine.

When it comes to identical incentives provided by governments, however, none of the fringe benefit, gift, or purchase price adjustment exclusions apply. Furthermore, while many government transfers are exempt from tax under other exclusions—for example, welfare assistance, veterans’ benefits, Social Security, and Medicare—those rules do not cover most nudges. Without a special exclusion, incentive-based nudges provided by governments are generally subject to tax under current laws. This regime does not appear to be a product of design, but is more likely the result of a piecemeal system of tax exemptions that has developed over time. Perhaps even more confounding is that an incentive structured as a government grant may be taxable, while an economically identical tax credit is not.

After examining the tax treatment of the most common types of nudges, this Article proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. It argues that lawmakers should reverse the default rule that all government transfers are taxable, and instead provide a rule that government transfers are excluded from income unless otherwise provided by the Tax Code. This would ensure that nudges designed to promote worthy policy goals would be exempt from tax as a default matter, unless Congress specifically decides otherwise. As an alternative to this broad proposal, the Article also proposes legislation that would exempt specific nudges from tax in the areas of health and environmental protection. Under either approach, exempting nudges from tax will make them more effective and should not pose serious revenue consequences.

This Article proceeds in four parts. Part I describes the concept of a nudge and categorizes the most common types of nudges. Part II provides an overview of the tax system and discusses the current tax treatment of nudges. Part III discusses policy implications of the current tax regime, including proposals to reform the tax treatment of nudges. Part IV concludes that the simplest, yet most effective, way to unify the tax treatment of nudges would be for Congress to provide a default of nontaxability for government transfers.

  1. * George R. Ward Term Professor of Law, University of North Carolina School of Law. I am grateful to Andrew Benton for excellent research assistance, and to helpful comments from Ellen Aprill, Peter Barnes, Fred Bloom, Michelle Drumbl, Heather Field, Brian Galle, Brant Hellwig, Andy Hessick, Carissa Hessick, Ed McCaffery, Pat Oglesby, Leigh Osofsky, Gregg Polsky, Katie Pratt, Rich Schmalbeck, Ted Seto, Jay Soled, Sloan Speck, Manoj Viswanathan, Larry Zelenak and workshop participants at University of Colorado Law School, Duke Law School, Loyola Law School, Washington & Lee University School of Law, and UC Hastings College of Law. For Tessie DeLaney.
  2. See infra Subsection I.B.6.
  3. See infra note 15 and accompanying text.
  4. Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 6 (2d ed. 2009).
  5. Cass R. Sunstein, Misconceptions About Nudges, 2 J. Behav. Econ. for Pol’y 61, 61 (2018).
  6. See, e.g., George Loewenstein & Nick Chater, Putting Nudges in Perspective, 1 Behav. Pub. Pol’y. 26, 29 (2017) (“Traditional economic interventions include taxes, subsidies and mandatory disclosure of information . . . .”).
  7. See, e.g., David Halpern, Inside the Nudge Unit: How Small Changes Can Make a Big Difference 4 (2015).
  8. See, e.g., Bruno S. Frey, A Constitution for Knaves Crowds Out Civic Virtues, 107 Econ. J. 1043, 1044–45 (1997).
  9. Cass R. Sunstein, Nudging: A Very Short Guide, 37 J. Consumer Pol’y 583, 583 (2014) (Nudges “generally cost little and have the potential to promote economic and other goals . . . .”).
  10. Halpern, supra note 6, at 22.
  11. Brian Galle argues that, in some circumstances, nudges are the most efficient choice of instrument. See Brian Galle, The Problem of Intrapersonal Cost, 18 Yale J. Health Pol’y, L., & Ethics 1, 32–50 (2018).
  12. Sunstein, supra note 8, at 585. However, for a critique of savings defaults, see Ryan Bubb & Richard H. Pildes, How Behavioral Economics Trims Its Sails and Why, 127 Harv. L. Rev. 1593, 1607–37 (2014).
  13. Thaler & Sunstein, supra note 3, at 110–11.
  14. Id. at 111.
  15. See, e.g., id. at 111–13 (automatic enrollment increased employee participation in savings plans from 65% to 90%, and could notably increase per-capita contribution percentages); Loewenstein & Chater, supra note 5, at 27.
  16. Daniel Kahneman, Jack Knetsch & Richard Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Persp. 193, 197–98 (1991).
  17. See About SBST, SBST, https://sbst.gov/#report [https://perma.cc/S3YM-35MC] (last visited June 14, 2019).
  18. William J. Congdon & Maya Shankar, The White House Social & Behavioral Sciences Team: Lessons Learned from Year One, 1 Behav. Sci. & Pol’y 77, 83 (2015), https://behavioralpolicy.org/wp-content/uploads/2017/05/BSP_vol1is2_Congdon.pdf [https://perma.cc/EXF9-RWMV].
  19. Id.
  20.  See About Us, Behavioural Insights Team, https://www.bi.team/about-us/ [https://perma.cc/6BUF-95PA] (last visited Nov. 7, 2020) (“We have run more than 750 projects to date, including 400 randomised controlled trials in dozens of countries.”).
  21. See Christopher Larkin, Michael Sanders, Isabelle Andresen & Felicity Algate, Testing Local Descriptive Norms and Salience of Enforcement Action: A Field Experiment to Increase Tax Collection, 2 J. Behav. Pub. Admin. 1, 9–10 (2019); Dominic King et al., Redesigning the “Choice Architecture” of Hospital Prescription Charts: A Mixed Methods Study Incorporating In Situ Simulation Testing, 4 BMJ Open 1, 8–9 (2014); Peter John, Elizabeth MacDonald & Michael Sanders, Targeting Voter Registration with Incentives: A Randomized Controlled Trial of a Lottery in a London Borough, 40 Electoral Stud. 170, 175 (2015).
  22. See Zeina Afif, William Wade Islan, Oscar Calvo-Gonzalez & Abigail Goodnow Dalton, World Bank Group, Behavioral Science Around the World: Profiles of 10 Countries 6 (2019), http://documents.worldbank.org/curated/en/710771543609067500/pdf/132610-REVISED-00-COUNTRY-PROFILES-dig.pdf [https://perma.cc/JDX2-R9UK].
  23. See, e.g., Congdon & Shankar, supra note 17, at 84 (finding that letters sent to physicians comparing their prescribing rates with those of their peers had no measurable impact on prescription rates).
  24. See Afif et al., supra note 21, at 8–9.
  25. See, e.g., Thaler & Sunstein, supra note 3, at 12, 85.
  26. See, e.g., Johan Egebark & Mathias Ekström, Can Indifference Make the World Greener? 11–13 (Rsch. Inst. of Indus. Econ., IFN Working Paper No. 975, 2013).
  27. Eric J. Johnson & Daniel Goldstein, Do Defaults Save Lives? 302 Science 1338, 1338–39 (2003).
  28. See, e.g., Sunstein, supra note 8, at 585.
  29. Eric P. Bettinger, Bridget Terry Long, Philip Oreopoulos & Lisa Sanbonmatsu, The Role of Simplification and Information in College Decisions: Results from the H&R Block FAFSA Experiment 1 (Nat’l Bureau of Econ. Rsch., Working Paper No. 15361, 2009), https://www.nber.org/papers/w15361.pdf [https://perma.cc/XBV6-DL2U].
  30. Id. at 26–27.
  31. Cass R. Sunstein, Empirically Informed Regulation, 78 U. Chi. L. Rev. 1349, 1372–73 (2011).
  32. Id. at 1373.
  33. See, e.g., New Text Message Reminders for Summons Recipients Improves Attendance in Court and Dramatically Cuts Warrants, Ideas42, https://www.ideas42.org/new-text-message-reminders-summons-recipients-improves-attendance-court-dramatically-cuts-warrants/ [https://perma.cc/5SMM-PPFH] (last visited June. 17, 2019) (finding that text message reminders in New York City reduced “failure to appear” rates by 26%).
  34. See Congdon & Shankar, supra note 17, at 83.
  35. See, e.g., Raj Chetty, Adam Looney & Kory Kroft, Salience and Taxation: Theory and Evidence, 99 Am. Econ. Rev. 1145, 1165 (2009).
  36. Lisa L. Shu, Nina Mazar, Francesca Gino, Dan Ariely & Max H. Bazerman, Signing at the Beginning Makes Ethics Salient and Decreases Dishonest Self-Reports in Comparison to Signing at the End, 109 Proc. Nat’l Acad. Sci. 15197, 15197–98 (2012), http://www.pnas.org/content/109/38/15197.full.pdf+html [https://perma.cc/436E-DGL2]
  37. Id. at 15198.
  38. See, e.g., Sunstein, supra note 30, at 1381; Kate Phillips, Applying Behavioral Science Upstream in the Policy Design Process, Behav. Scientist (Sept. 17, 2018), https://behavioralscientist.org/applying-behavioral-science-upstream-in-the-policy-design-process/ [https://perma.cc/UWJ5-BBC7] (describing new laws implemented in Australia, requiring graphic images on cigarette labels, to reduce smoking rates).
  39. Michael Hallsworth, John A. List, Robert D. Metcalfe & Ivo Vlaev, The Behavioralist as Tax Collector: Using Natural Field Experiments to Enhance Tax Compliance 4 (Nat’l Bureau of Econ. Research, Working Paper No. 20007, 2014), https://www.nber.org/papers/w20007 [https://perma.cc/W7LN-F2T2].
  40. Hunt Allcott, Social Norms and Energy Conservation, 95 J. Pub. Econ. 1082, 1082–83 (2011).
  41. Sunstein, supra note 4, at 61 (distinguishing between nudges, which “must preserve freedom of choice,” and subsidies or other interventions, which “impose[] significant material costs on choosers”).
  42. This is assuming economically rational decision making on behalf of the homeowner, without factoring in other (realistic) costs, such as hassle costs and present bias.
  43. Sunstein, supra note 4, at 61.
  44. See Robert Münscher, Max Vetter & Thomas Scheuerle, A Review and Taxonomy of Choice Architecture Techniques, 29 J. Behav. Decision Making 511, 518 (2016) (defining micro-incentives as “changes of the consequences of decision options that are insignificant from a rational choice perspective”).
  45. Id.
  46. The small size of the payment makes it particularly less likely to function as a true subsidy, although it could. For example, if paying for bus fare to a local clinic was the impediment to a person obtaining a free flu shot, the $5 may operate as an economic subsidy free of behavioral considerations. For further discussion of the distinction between nudges and subsidies, see Brian Galle, Tax, Command . . . or Nudge?: Evaluating the New Regulation, 92 Tex. L. Rev. 837, 854–56 (2014) (explaining that “surprising and asymmetric incentives” are one factor distinguishing nudges from subsidies, and using a five-cent tax on plastic bags as an example of a financial consequence that is most likely a nudge, given that alternatives are generally more costly than the bag tax).
  47. Bronwyn McGill, Blythe J. O’Hara, Anne C. Grunseit & Philayrath Phongsavan, Are Financial Incentives for Lifestyle Behavior Change Informed or Inspired by Behavioral Economics? A Mapping Review, 33 Am. J. Health Promotion 131, 131 (2019) (“Since the 1960s, financial incentives (FIs) have been used in behavior change interventions, targeting a broad spectrum of health issues such as blood donation, medication adherence, and health and wellness programs.”).
  48. Soeren Mattke et al., Workplace Wellness Programs Study: Final Report, at xiv (Rand Corp. ed. 2013); see also Laura A Linnan, Laurie Cluff, Jason E. Lang, Michael Penne & Maija S. Leff, Results of the Workplace Health in America Survey, 3 Am. J. Health Promotion 652, 655 (2019) (over 46% of worksites surveyed had wellness programs).
  49. See Ha T. Tu & Ralph C. Mayrell, Employer Wellness Initiatives Grow, But Effectiveness Varies Widely, Nat’l Inst. for Health Care Reform, July 2010, at 2 (concluding that employers offer wellness programs to contain medical costs, to improve productivity, and to “position themselves as ‘employers of choice’”).
  50. Id.
  51. Id. at 2–3.
  52. Id. at 3–4.
  53. Mattke et al., supra note 47, at xv.
  54. Tu & Mayrell, supra note 48, at 5; Bahaudin G. Mujtaba & Frank J. Cavico, Corporate Wellness Programs: Implementation Challenges in the Modern American Workplace, 1 Int’l J. Health Pol’y & Mgmt. 193, 194 (2013) (mentioning gym reimbursements as a part of corporate wellness programs).
  55. See, e.g., Mujtaba & Cavico, supra note 53, at 194 (listing seminars as a part of corporate wellness programs).
  56. These wellness program incentives are regulated by several laws. For example, the Health Insurance Portability and Accountability Act (“HIPAA”) imposes multiple nondiscrimination requirements. See Tu & Mayrell, supra note 48, at 6.
  57. Mattke et al., supra note 47, at 73 fig.5.3.
  58. Tu & Mayrell, supra note 48, at 5; see also Mujtaba & Cavico, supra note 53, at 196 (referencing “[h]ealth insurance discounts and reimbursements for employees who meet health standards and maintain a healthy lifestyle”).
  59. One report found that “[m]ost benefits consultants and wellness vendors believed that $100 is the ‘sweet spot’ for an incentive for a ‘single instance of behavior,’ such as HRA completion or participation in a specific wellness activity.” See Tu & Mayrell, supra note 48, at 5.
  60. John Cawley & Joshua A. Price, A Case Study of a Workplace Wellness Program That Offers Financial Incentives for Weight Loss, 32 J. Health Econ. 794, 795 (2013).
  61. Mattke et al., supra note 47, at xxi.
  62. But see Katherine Pratt, A Constructive Critique of Public Health Arguments for Anti-Obesity Soda Taxes and Food Taxes, 87 Tul. L. Rev. 73, 77–94 (2012) (discussing economic, externality-based justifications for anti-obesity taxes and subsidies).
  63. Present bias describes the tendency to value immediate rewards over future rewards, even if the future rewards are larger. See, e.g., Richard Thaler, Some Empirical Evidence on Dynamic Inconsistency, 8 Econ. Letters 201, 201 (1981). In the context of weight loss, it is hard for people to forego immediate benefits (a tasty meal, for example) in exchange for a future benefit (lower weight).
  64. See Cawley & Price, supra note 59, at 794 (“[P]eople may want to do what is in their long-run interest (lose weight), but consistently succumb to the temptation to eat and be sedentary.”).
  65. Id.
  66. Tu & Mayrell, supra note 48, at 5.
  67. Id.
  68. Sahil Gupta, Opinion, Earning Prizes for Fighting an Addiction, N.Y. Times (Mar. 12, 2019), https://www.nytimes.com/2019/03/12/opinion/earning-prizes-for-fighting-an-addiction.html [https://perma.cc/58CN-DT45].
  69. Id.
  70. Id.
  71. Id.
  72. Scott D. Halpern et al., Randomized Trial of Four Financial-Incentive Programs for Smoking Cessation, 372 N. Eng. J. Med. 2108, 2108 (2015). Another intervention explored in the study was a deposit program in which participants would put up their own funds and earn them back if they successfully quit. Although the deposit was very effective for those who chose it, the cash incentive was more successful overall at reducing smoking, because significantly more participants opted for the cash intervention over the deposit. Id. at 2114.
  73. See, e.g., Kevin G. Volpp et al., A Randomized, Controlled Trial of Financial Incentives for Smoking Cessation, 360 New Eng. J. Med. 699, 707 (2009) (finding that a group who received financial incentives to refrain from smoking had “significantly higher” rates of “prolonged abstinence” than did a control group, who did not receive the same incentives).
  74. See, e.g., Jody Sindelar, Opinion, Should We Pay People to Stop Smoking?, CNN (Oct. 5, 2011), https://www.cnn.com/2011/10/05/opinion/sindelar-smoking-medicaid/index.html [https://perma.cc/C3Y6-39H8].
  75. Thaler & Sunstein, supra note 3, at 236.
  76. Joshua Rhett Miller, North Carolina Program Pays Girls a Dollar a Day Not to Get Pregnant, Fox News (June 25, 2009), https://www.foxnews.com/story/north-carolina-program-pays-girls-a-dollar-a-day-not-to-get-pregnant [https://perma.cc/L6JJ-7CVW]. The payment was contingent on attending a ninety-minute lesson each week, where the women learned about abstinence and contraception use. Id.
  77. Id.
  78. Dyan Zaslowsky, Denver Program Curbs Teen-Agers’ Pregnancy, N.Y. Times, Jan. 16, 1989, at A8.
  79.  Economic Incentives, Environmental Protection Agency, https://www.epa.gov/‌environmental-economics/economic-incentives [https://perma.cc/UCT5-4JJB] (last visited Dec. 21, 2020) (explaining that market-based incentives, like taxes and subsidies, are “becoming increasingly popular as tools for addressing a wide range of environmental issues”).
  80. Christian Schubert, Green Nudges: Do They Work? Are They Ethical?, 132 Ecological Econ. 329, 329 (2017).
  81. See Howard Kunreuther & Elke U. Weber, Aiding Decision Making to Reduce the Impacts of Climate Change, 37 J. Consumer Pol’y 397, 397–98 (2014).
  82. See, e.g., Schubert, supra note 79, at 330 (defining green nudges as “nudges that aim at promoting environmentally benign behavior”).
  83. Id.
  84.  See Hunt Allcott & Dmitry Taubinsky, Evaluating Behaviorally Motivated Policy: Experimental Evidence from the Lightbulb Market, 105 Am. Econ. Rev. 2501, 2501–02 (2015) (exploring the phenomenon and finding that moderate subsidies for energy-efficient lightbulbs may be effective in addressing this underinvestment).
  85. Free LED Program, Duke Energy, https://www.duke-energy.com/home/products/free-leds [https://perma.cc/FY93-D5L5] (last visited June 19, 2019); see also Commercial Retrofit, Puget Sound Energy, https://www.pse.com/rebates/business-incentives/commercial-retrofit-grants [https://perma.cc/R578-FS72] (last visited July 5, 2019) (providing coverage for up to 70% of the cost for energy efficient upgrades).
  86. Smart $aver: Home Improvement Rebate Program, Duke Energy, https://www.duke-energy.com/home/products/smart-saver [https://perma.cc/GAT6-GC5L] (last visited June 19, 2019).
  87. HVAC Install, Duke Energy, https://www.duke-energy.com/home/products/smart-saver/hvac-install [https://perma.cc/BE7P-YTJQ] (last visited June 19, 2019).
  88. Insulate & Seal, Duke Energy, https://www.duke-energy.com/home/products/smart-saver/insulate-and-seal [https://perma.cc/RC5K-V89W] (last visited June 19, 2019).
  89. Toshio Fujimi & Hirokazu Tatano, Promoting Seismic Retrofit Implementation Through “Nudge”: Using Warranty as a Driver, 33 Risk Analysis 1858, 1873 (2013).
  90. See id. at 1859–60.
  91. Id. at 1863.
  92. Id. at 1859.
  93. Id. at 1873.
  94. See supra note 62.
  95. See Kathleen DeLaney Thomas, The Modern Case for Withholding, 53 U.C. Davis L. Rev. 81, 124 (2019).
  96. See id. at 114.
  97. See Loewenstein & Chater, supra note 5, at 29–30.
  98. See Fujimi & Tatano, supra note 88, at 1872.
  99. Earthquake Brace + Bolt, https://www.earthquakebracebolt.com [https://perma.cc/‌5WPS-7X73] (last visited June 20, 2019).
  100. See, e.g., Cesarini v. United States, 296 F. Supp. 3, 4 (N.D. Ohio 1969) (“The starting point in determining whether an item is to be included in gross income is, of course, Section 61(a) of Title 26 U.S.C.”).
  101. I.R.C. § 61(a). The statute goes on to provide a non-exclusive list of items of gross income, such as compensation for services, interest, rents, royalties, and dividends. Id.
  102. 348 U.S. 426, 431 (1955).
  103. See, e.g., Cesarini, 296 F. Supp. at 4 (holding that cash found in a used piano constituted taxable income under I.R.C. § 61(a)); Turner v. Comm’r, 13 T.C.M. 462, 463 (1954) (holding that cruise tickets received as a prize from a radio station constituted taxable income, with the only issue being valuation); see also Treas. Reg. § 1.61-14 (as amended in 1993) (expanding § 61(a) definition of gross income to include illegal gains and treasure troves, while clarifying that “[i]n addition to the items enumerated in section 61(a), there are many other kinds of gross income”).
  104. See I.R.C. § 74 (a).
  105.  See Topic No. 420 Bartering Income, IRS, https://www.irs.gov/taxtopics/tc420 [https://perma.cc/4XMQ-EASH] (last visited June 20, 2019).
  106. The discussion omits other exclusions not relevant for this purpose, such as the non-taxation of imputed income under the Code, the realization requirement (§ 1001), and statutory exclusions like § 101 (life insurance proceeds) and § 103 (interest on state and local bonds).
  107. I.R.C. § 102.
  108. 363 U.S. 278, 285 (1960).
  109. Id.
  110. Id. at 280, 291–92 (The transfer was “at bottom a recompense for Duberstein’s past services, or an inducement for him to be of further service in the future.”).
  111. Specifically, Code section 139 and the general welfare doctrine, both of which are discussed below. Rev. Rul. 2003-12, 2003-1 C.B. 283–84.
  112. Rev. Rul. 2005-46, 2005-2 C.B. 120.
  113. See, e.g., Rev. Rul. 2003-12, supra note 110, at 283.
  114. The exception is that certain employee achievement awards are excludable under I.R.C§ 74(c) (2018).
  115. Rev. Rul. 2003-12, supra note 110, at 284–85.
  116. Id. at 283–84.
  117. Rev. Rul. 99-44, 1999-44 I.R.B. 549–50. The matching contributions were gifts even though the savings accounts were established pursuant to a federal government program, which was administered by the charitable organization.
  118. See I.R.S. Priv. Ltr. Rul. 200442023 (Oct. 15, 2004).
  119. I.R.S. Priv. Ltr. Rul. 200529004 (July 22, 2005). Although payments from charities to individuals are likely to receive gift treatment in most situations, the Duberstein standard must still be satisfied for the gift exclusion to apply. For example, the IRS has stated in informal guidance that if a charity makes a payment to a for-profit business, “[t]he IRS will evaluate whether . . . . the payment was made out of a moral or legal obligation, an anticipated economic benefit or in return for services . . . .” Internal Revenue Service, Disaster Relief20, https://www.irs.gov/pub/irs-pdf/p3833.pdf [https://perma.cc/CQ2W-R83D]. Generally, payments made to individuals that are part of a “charitable class” (i.e., “large enough or sufficiently indefinite that the community as a whole, rather than a pre-selected group of people, benefits when a charity provides assistance”) should qualify for gift treatment. Id. at 9. I am grateful to Ellen Aprill for bringing this limitation to my attention.
  120. See, e.g., I.R.C. § 132.
  121. See Jay A. Soled & Kathleen DeLaney Thomas, Revisiting the Taxation of Fringe Benefits, 91 Wash. L. Rev. 761, 770 (2016).
  122. See id. at 766–68.
  123. Id. at 769–70.
  124. I.R.C. § 132(d), (e).
  125. See Soled & Thomas, supra note 120, at 770.
  126. However, if an employee is a shareholder or owner of the employer, payments made to employees may be treated as dividends rather than as compensation. See, e.g., Andrew W. Stumpff, The Reasonable Compensation Rule, 19 Va. Tax. Rev. 371, 377 (1999).
  127. I.R.C. § 132(a)(4), (e).
  128. In a similar context but outside the employment setting, a court allowed for exclusion of an all-expenses-paid business trip to Germany because the payment was made for the convenience of the payer, rather than for the recipient’s benefit. United States v. Gotcher, 401 F.2d 118, 119, 122 (5th Cir. 1968). Neither courts nor the IRS have explicitly extended the line of reasoning in Gotcher to other settings, particularly to non-business settings. However, the line of reasoning in the case could arguably apply to exclude many nudges from income. The argument would be that payments made primarily for the payer’s benefit (e.g., a government grant program) are not taxable income to the payee. Thanks to Ted Seto for this observation.
  129. See, e.g., Pittsburgh Milk Co. v. Comm’r, 26 T.C. 707, 717 (1956); Freedom Newspapers, Inc. v. Comm’r, 36 T.C.M. (CCH) 1755, 1758–59 (1977); Rev. Rul. 76-96, 1976-1 C.B. 23.
  130. See Rev. Rul. 76-96, 1976-1 C.B. 23. The taxpayer must reduce his basis in the property purchased by the amount of the rebate, resulting in a basis of $19,000 in this example.
  131. Freedom Newspapers, 36 T.C.M. (CCH) at 1756–57. But see I.R.S. Priv. Ltr. Rul. 201004005 (Jan. 29, 2010) (ruling that grants paid by a third party were not excludable from income, even when the net effect was to reduce the buyer’s cost on a purchase transaction). In the private ruling, the IRS distinguished payments involving broker commissions, which are dependent upon the sales transactions, from third-party grants that are independent of the transaction. Id.
  132. The taxpayer received “Thank You Points” that were redeemable for airline miles. Shankar v. Comm’r, 143 T.C. 140, 148 (2014). The court also noted that the miles were not earned during business travel, which the IRS has singled out for non-enforcement in Announcement 2002-18, 2002-1 C.B. 621.
  133. Shankar, 143 T.C. at 148.
  134. See I.R.S. Priv. Ltr. Rul. 201027015, at 3 (July 9, 2010) (ruling that cash-back rebates are excluded from gross income as purchase price reductions).
  135. For taxpayers that are corporations, Code § 118 historically exempted “contributions to capital,” which covered many government grants to corporations. However, section 118 was amended in 2017 and currently does not exempt contributions to capital made by “any governmental entity.” I.R.C. § 118(b). Regardless, this Article is concerned with incentives provided to individual taxpayers, not corporations.

    There are other special exclusions applicable to businesses not discussed in detail here. For example, Code § 48(d)(3) excludes grants made to developers and producers of renewable energy, pursuant to the American Recovery and Reinvestment Act of 2009.

  136. Greisen v. United States, 831 F.2d 916, 918 (9th Cir. 1987). The Alaska Permanent Fund is funded by the state’s mineral royalties; it distributes earnings in the form of dividends to each resident of the state on an annual basis. Id. at 916–17; see also About Us, Alaska Department of Revenue: Permanent Fund Dividend Division, https://pfd.alaska.gov/Division-Info/About-Us [https://perma.cc/QHG2-M67C] (last visited July 1, 2019) (explaining the Alaska Permanent Fund eligibility and dividend calculation functions).
  137. Greisen, 831 F.2d at 919–20 (“According to the statement of purpose, the 1980 Act was intended: (1) to allow equitable distribution of part of the state’s wealth to Alaskans; (2) to encourage people to remain Alaska residents; and (3) to encourage awareness and interest in the management of the fund.”).
  138. See, e.g., Graff v. Comm’r, 673 F.2d 784, 785 (5th Cir. 1982). For a comprehensive discussion of the doctrine, see Theodore P. Seto & Sande L. Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. Pa. L. Rev. 1053, 1106–14 (2006); see generally Robert W. Wood & Richard C. Morris, The General Welfare Exception to Gross Income, 109 Tax Notes 203, 204–08 (2005) (describing the development of the General Welfare Exception and the prongs of the test determining whether a payment qualifies).
  139. Rev. Rul. 2005-46, 2005-2 C.B. 120; see also Rev. Rul. 74-205, 1974-1 C.B. 20 (ruling that housing payments to displaced families qualified under the general welfare exception, and were not includible in gross incomes of the recipients); Rev. Rul. 98-19, 1998-1 C.B. 840 (ruling that a relocation payment made to an individual moving from a flood-damaged residence qualified for the general welfare exception).
  140. I.R.S. Notice 99-3, 1999-1 C.B. 271, 272.
  141. Rev. Rul. 2005-46, supra note 138.
  142. Rev. Rul. 2003-12, 2003-1 C.B. 283; Rev. Rul. 76-144, 1976-1 C.B. 17. However, the IRS has ruled that payments to businesses do not qualify for the doctrine, because the need must be “individual or family” based. See Rev. Rul. 2005-46, supra note 138.
  143. Rev. Rul. 74-74, 1974-1 C.B. 18.
  144. Rev. Rul. 76-395, 1976-2 C.B. 16.
  145. 88 T.C. 1293, 1301 (1987), acq. 1989-2 C.B. 1. The court excluded the grant from income on other grounds, however, finding that the taxpayer “lacked complete dominion” over the funds, which were paid directly to the contractor who did the work.
  146. Id. (noting that the only requirements to receive the grant “were ownership of the property and compliance with the building code”).
  147. The exclusion applies to “qualified disaster[s],” which also includes events involving terrorism or common carrier accidents. See I.R.C. § 139(c). For a critique of limiting the exclusion to qualified disasters only, see Ellen P. Aprill & Richard Schmalbeck, Post-Disaster Tax Legislation: A Series of Unfortunate Events, 56 Duke L.J. 51, 95 (2006).
  148. I.R.C. § 139(g).
  149. I.R.C. § 401(k).
  150. I.R.C. § 61.
  151. I.R.C. § 132(e).
  152. I.R.C. § 106(a).
  153. Rev. Rul. 2002-3, 2002-1 C.B. 316 (“Under §106(a), an employee may exclude premiums for accident or health insurance coverage that are paid by an employer.”).
  154. I.R.C. § 105(b).
  155. See, e.g., Office of Chief Counsel Internal Revenue Service Memorandum 201622031, at 1 (Apr. 14, 2016) [hereinafter “IRS Memo 201622031”].
  156. I.R.C. § 61.
  157. Treas. Reg. § 1.132-6(c) (as amended in 1992).
  158. I.R.C. § 132(e).
  159. Treas. Reg. § 1.132-6(c) (as amended in 1992). The exception to this rule is cash for occasional overtime meals or transportation fare can be excluded as de minimis. See Treas. Reg. § 132-6(d)(2) (as amended in 1992).
  160. Treas. Reg. § 1.132-6(e)(1) (as amended in 1992) (“Benefits excludable from income”).
  161. IRS Memo 201622031 at 4.
  162. Id. at 4.
  163. See Treas. Reg. § 1.132-6(e)(1)–(2) (as amended in 1992).
  164. See supra notes 51–53 and accompanying text.
  165. See Treas. Reg. § 1.61-2(d)(1) (as amended in 2003).
  166. I.R.C. § 132(e)(1).
  167. Treas. Reg. § 1.132-6(e)(1)–(2) (as amended in 1992).
  168. See IRS Memo 201622031 at 2, 4–5. “Medical care” is defined in section 105(b) by reference to section 213(d) of the Code, which provides that medical care includes amounts paid “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” I.R.C. § 213(d)(1)(A).
  169. See IRS Memo 201622031 at 2, 5.
  170. See id. For examples of medical care under section 213, including smoking cessation programs, see IRS Publication 502, Medical and Dental Expenses, https://www.irs.gov/‌pub/irs-pdf/p502.pdf [https://perma.cc/3GGF-RMV3] (last visited Mar. 10, 2021).
  171. Medical expenses include payments for a weight-loss program “for a specific disease diagnosed by a physician,” so it is unlikely that a weight-loss program would qualify in the absence of a diagnosis. See IRS Publication 502, supra note 169.
  172. See Treas. Reg. § 1.132-6(e)(1) (as amended in 1992) (citing examples of “occasional” events, such as sports games or cocktail parties, as ones that qualify as de minimis).
  173. In an analogous context, it appears many service-type benefits offered by Silicon Valley companies, such as free dry cleaning, haircuts, or yoga classes, are likely not reported as taxable by those employers. See Soled & Thomas, supra note 120, at 779–86.
  174. Treas. Reg. § 1.132-6(e)(2) (as amended in 1992). However, onsite gyms operated by the employer qualify for exclusion. See I.R.C. § 132(j)(4).
  175. See IRS Memo 201622031 at 4–5.
  176. I.R.C. § 132(a)(2).
  177. I.R.C. § 132(c)(4).
  178. It follows that a private gym could offer discounted gym services to its own employees.
  179. See supra note 57 and accompanying text.
  180. See supra note 128 and accompanying text.
  181. See supra note 152.
  182. See IRS Memo 201622031 at 5.
  183. See id. at 2–5.
  184. See Rev. Rul. 2002-3, supra note 152.
  185. See supra note 73 and accompanying text.
  186. See supra notes 75–77 and accompanying text.
  187. See supra notes 67–70 and accompanying text; 75–77 and accompanying text.
  188. See supra note 140 and accompanying text.
  189. See supra notes 141–43 and accompanying text.
  190. See IRS Publication 502, supra note 169. However, the deduction is only available to itemizers (those who do not claim the standard deduction) and is limited to the excess of 10% of the individual’s adjusted gross income. I.R.C. § 213(a).
  191. I.R.C. § 105(b).
  192. I.R.C. § 104(a).
  193. Another exception, which would be irrelevant in this circumstance, is section 102, which would exclude from income medical care paid for by family members or friends. See I.R.C. § 102(a).
  194. See supra notes 84–87 and accompanying text.
  195. See, e.g., supra note 87.
  196. See supra note 129 and accompanying text.
  197. For example, in Freedom Newspapers v. Commissioner, 36 T.C.M. (CCH) 1755 (1977), the Tax Court held that even a payment received by a third party broker several years after the original purchase “was sufficiently tied to the purchase that its characterization must be made by reference to the original transaction.”
  198. I.R.C. § 139(g).
  199. See supra note 141 and accompanying text.
  200. See supra note 98 and accompanying text.
  201. I.R.S. Priv. Ltr. Rul. 201816004 (Jan. 11, 2018). See also I.R.S. Priv. Ltr. Rul. 201815005 (Jan. 11, 2018) (describing similar facts).

    One theory that the IRS did not appear to consider is the purchase price adjustment doctrine. See supra Subsection II.A.2. Arguably, a state grant paid to a state taxpayer could be considered a non-taxable adjustment to the amount of taxes owed to the state by the grant recipient. (This assumes the grant recipient earns enough income to owe state taxes in excess of the grant.) While it is hard to distinguish a state grant from a seller rebate on economic grounds, it appears neither courts nor the IRS have extended the purchase price adjustment doctrine to this context. I am grateful to Heather Field for this observation.

  202. I.R.S. Priv. Ltr. Rul. 201816004 (Jan 11. 2018).
  203. See Earthquake Mitigation Incentive and Tax Parity Act of 2017, H.R. 1691, 115th Cong. (2017); Earthquake Mitigation Incentive and Tax Parity Act of 2017, S. 2104, 115th Cong. (2017).
  204. See Henry C. Simons, Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy 50 (1938); Robert Murray Haig, The Concept of Income–Economic and Legal Aspects, in The Federal Income Tax 1, 7 (Robert Murray Haig ed., 1921). The definition is commonly referred to as the Haig-Simons definition of income. See, e.g., John R. Brooks, The Definitions of Income, 71 Tax L. Rev. 253, 262 (2018); Boris I. Bittker, A “Comprehensive Tax Base” as a Goal of Income Tax Reform, 80 Harv. L. Rev. 925, 932 (1967). For a comprehensive discussion of the difficulty of defining income and a description of several other approaches, see generally Brooks, supra; see also Victor Thuronyi, The Concept of Income, 46 Tax L. Rev. 45, 47 (1990) (describing the Haig-Simons definition vis-à-vis the general difficulty in defining income).
  205. See, e.g., Bittker, supra note 203, at 935; Jonathan Barry Forman, The Income Tax Treatment of Social Welfare Benefits, 26 U. Mich. J.L. Reform 785, 799 (1993).
  206. Bittker, supra note 203, at 935–37.
  207. The legal scholarship on this point is too voluminous to cite, but for some of the earliest work, see, e.g., id. at 932; R. A. Musgrave, In Defense of an Income Concept, 81 Harv. L. Rev. 44 (1967); Joseph A. Pechman, Comprehensive Income Taxation: A Comment, 81 Harv. L. Rev 63 (1967); Charles O. Galvin, More on Boris Bittker and the Comprehensive Tax Base: The Practicalities of Tax Reform and the ABA’s CSTR, 81 Harv. L. Rev. 1016 (1968). For a discussion of the debate over the use of a “comprehensive tax base,” see Brooks, supra note 203, at 270–74.
  208. See, e.g., Dep’t of Treasury, Office of Tax Analysis, Tax Expenditures (2017), https://www.treasury.gov/resource-center/tax-policy/Documents/Tax-Expenditures-FY2019.pdf [https://perma.cc/8UVR-9ZKJ] [hereinafter “Tax Expenditures].
  209. Id. at 9, 18.
  210. Although the tax-free receipt of a gift by the donee is not labeled as an expenditure, the carryover basis provided by section 1015 for appreciated gifts is considered a tax expenditure. See J. Comm. on Tax’n, Estimates of Federal Tax Expenditures for Fiscal Years 2018–2022, 26 (Oct. 4, 2018), https://www.jct.gov/publications/2018/jcx-81-18/ [https://perma.cc/33XY-P3EB] [hereinafter “JCT Tax Expenditures”].
  211. See Tax Expenditures, supra note 207, at 3 (“The normal tax baseline also excludes gifts between individuals from gross income.”).
  212. See, e.g., Richard Schmalbeck, Gifts and the Income Tax—An Enduring Puzzle, 73 Law & Contemp. Probs. 63, 65 (2010) (arguing that “although it is intuitively appealing to regard value received by gift as an element of the income of the individual receiving it, it is completely unappealing to regard value received by gift as an increment to income in the aggregate”).
  213. Id. This of course assumes that the donor and the donee have the same tax rate. In reality, donors likely have higher tax rates than donees, in which case the net effect would be revenue loss to the government. For example, if the donor had a 30% marginal tax rate and the donee had a 10% marginal tax rate, the donor’s deduction for a $100 gift would be worth $30 (30% of $100), while the donee’s tax liability would be $10 (10% of $100), resulting in a $20 revenue loss.
  214. For income tax purposes, the gift is a non-event and need not be reported. However, the gift may need to be valued and returns filed if the gift tax applies. Currently, transfers under $15,000 are exempt from the gift tax. See, e.g., Frequently Asked Questions on Gift Taxes, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes [https://perma.cc/23XD-GDZC] (last visited July 11, 2019).
  215. E.g., Schmalbeck, supra note 211, at 65.
  216. The counterargument is that the gift represents consumption purchased by the donor. For a discussion of this theory, see id. at 68–69.
  217. See supra Subsection II.A.2.
  218. For a similar argument, see Charlotte Crane, Government Transfer Payments and Assistance: A Challenge for the Design of Broad-Based Taxes, 59 SMU L. Rev. 589, 611–12 (2006) (pointing out that government transfers do not create new value).
  219. See, e.g., supra notes 134–135 and accompanying text.
  220. See supra note 154 and accompanying text.
  221. Either way, the payment is deductible under Code section 162.
  222. JCT Tax Expenditures, supra note 209, at 27. The characterization of an exclusion as an expenditure depends on how Congress defines the tax base, and this has changed over time. See, e.g., Julie Roin, Truth in Government: Beyond the Tax Expenditure Budget, 54 Hastings L.J. 603, 608–10 (2003) (providing an overview of the development of the federal tax expenditure budget).

    The characterization of scholarships depends particularly on varying definitions of the tax base, and Treasury has noted that:

    From an economic point of view, scholarships and fellowships are either gifts not conditioned on the performance of services, or they are rebates of educational costs. Thus, under the baseline tax system of the reference law method, this exclusion is not a tax expenditure . . . . The exclusion, however, is considered a tax expenditure under the normal tax method, which includes gift-like transfers of Government funds in gross income (many scholarships are derived directly or indirectly from Government funding).

    See Tax Expenditures, supra note 207 at 13.

  223. See, e.g., Joseph M. Dodge, Scholarships Under the Income Tax, 46 Tax Law. 697, 698–99 (1993) (examining arguments for excluding scholarships from the tax base and for making them a tax preference); Charlotte Crane, Scholarships and the Federal Income Tax Base, 28 Harv. J. on Legis. 63, 113 (1991) (same).
  224. The exclusion in section 117 only covers scholarships paid for tuition and related expenses. Although some scholarship funds are conditioned on the performance of services like teaching or research, those funds are explicitly excluded from section 117 and are taxable. I.R.C. § 117(c)(1).
  225. The value of the educational benefit likely exceeds the cost of tuition because higher educational institutions receive substantial funding from other sources besides tuition, including government subsidies. See, e.g., Crane, supra note 222, at 71.
  226. See generally sources cited at note 222 (observing the difficulty of assessing educational value as justification for exempting academic scholarships from taxable income under the federal tax code).
  227. See supra note 221; see also Dodge, supra note 222, at 701–02.
  228. See Dodge, supra note 222, at 711.
  229. See Freedom Newspapers v. Commissioner, 36 T.C.M. (CCH) 1755, 1758–59 (1977).
  230. JCT Tax Expenditures, supra note 207, at 27–28.
  231. Because retrofit grants and similar payments must be applied towards the specified property improvements, they are better viewed as the provision of property, rather than as a receipt of cash by the taxpayer. There is precedent for this approach, although it is not the approach the IRS has taken specifically with retrofit grants. For example, in Bailey v. Commissioner, the taxpayer wasn’t taxed on an urban renewal grant for his property because the grant went directly to the general contractor, and the court found the taxpayer never had sufficient control over the funds to warrant taxation. See 88 T.C. 1293, 1301 (1987), acq., 1989-2 C.B. 1.

    Arguably, any time an individual receives an incentive-based nudge or BBS in the form of cash that must be spent on specified property or services, the taxability of such funds should be based on the ultimate purchase, rather than on the temporary receipt of cash.

  232. For example, if a taxpayer owns an asset that appreciates in value (e.g., a stock or a house), she has a positive change in net wealth. However, the Code will not tax her until she “realize[s]” a gain, such as by making a sale. See I.R.C. § 1001.
  233. For a discussion of the legislative history behind the section 132 fringe benefit rules, see infra notes 261–67 and accompanying text.
  234. See Scott Greenberg, Reexamining the Tax Exemption of Municipal Bond Interest, Tax Found. Fiscal Fact No. 520 (July 2016), https://files.taxfoundation.org/legacy/‌docs/TaxFoundation_FF520.pdf [https://perma.cc/ZY7A-QS3M]. (observing that state and local bonds are justified as a basis for incentivizing investments in projects that benefit nonresidents, but concluding that “[a] tax exclusion is an unideal policy design for subsidizing state and local debt”).
  235. In that case, 20% or $250 would be tax, and $1,000 would remain.
  236. If the federal government increases a federal subsidy from $1,000 to $1,250 to account for federal income tax, it will pay $250 more for the subsidy and collect $250 in tax.
  237. See, e.g., Christopher C. Fennell & Lee Ann Fennell, Fear and Greed in Tax Policy: A Qualitative Research Agenda, 13 Wash. U. J.L. & Pol’y 75, 79 (2003) (“A functional definition of . . . tax aversion . . . is the amount by which one’s aversion to a tax exceeds the economic cost of the tax.”); Edward J. McCaffery & Jonathan Baron, Thinking About Tax, 12 Psych., Pub. Pol’y & Law 106, 117 (2006); Abigail B. Sussman & Christopher Y. Olivola, Axe the Tax: Taxes Are Disliked More than Equivalent Costs, 68 J. Mktg. Rsch. S91, S91 (2011).
  238. See, e.g., Sussman & Olivola, supra note 236, at S93 (describing experiments that found people change their behavior to avoid taxes, but not reacting in a similar manner to comparable non-tax costs).
  239. McCaffery & Baron, supra note 236, at 117–18 (recounting an experiment the authors conducted where individuals were confronted with a policy labeled as a tax or comparable economic policy not labeled as a tax, which “found that labels mattered”); David J. Hardisty, Eric J. Johnson & Elke U. Weber, A Dirty Word or a Dirty World? Attribute Framing, Political Affiliation, and Query Theory, 21 Psych. Sci. 86, 91 (2010) (finding in an experiment that “framing the cost increase as a tax differentially affected the structure and content of thoughts generated by Democrats and Republicans, leading to different preferences”).
  240. Sussman & Oliviola, supra note 236, at S94–96, S100.
  241. Id. at S95.
  242. Id.
  243. Id.
  244. Id.
  245. Id. at S95–96.
  246. Id. at S94.
  247. One source of variation appears to be political affiliation. Studies show that Republicans and Independents are sensitive to “tax” labels in decision making, but Democrats generally are not. See id. at S96–97; Hardisty et al., supra note 238, at 91 (finding “that the power of a framing manipulation can depend on participants’ preexisting individual differences”).
  248. Of course, tax aversion will not deter participants who are unaware of the tax, which may be the case when there is no information reporting required. For incentives subject to information reporting (discussed more below), participants will likely have to provide tax information at the outset (e.g., a Form W-9), and are more likely to be aware of tax consequences. Other programs may disclose tax consequences on their website or in related materials, as is the case with California’s Earthquake Mitigation program. See infra note 272.
  249. See generally Kay Blaufus & Axel Möhlmann, Security Returns and Tax Aversion Bias: Behavioral Responses to Tax Labels, 15 J. Behav. Fin. 56, 63–65 (2014) (finding that people have tax aversion bias toward infrequent, unfamiliar financial decisions).
  250. See I.R.C. § 6041(a).
  251. I.R.S. Priv. Ltr. Rul. 201816004 (Apr. 20, 2018); I.R.S. Priv. Ltr. Rul. 201815005 (Apr. 13, 2018).
  252. Marianne Bertrand, Sendhil Mullainathan, & Eldar Shafir, Behavioral Economics and Marketing in Aid of Decision Making Among the Poor, 25 J. Pub. Pol’y & Mktg. 8, 16 (2006).
  253. Id.
  254. Saurabh Bhargava & Dayanand Manoli, Psychological Frictions and the Incomplete Take-Up of Social Benefits: Evidence from an IRS Field Experiment, 105 Am. Econ. Rev. 3489, 3490 (2015).
  255. Id. at 3524.
  256. Id. at 3492.
  257. See Kathleen DeLaney Thomas, User-Friendly Taxpaying, 92 Ind. L.J. 1509, 1512 (2017).
  258. Tax withholding is required on payments of employee compensation, but not for other payments. See I.R.C. § 3402(a).
  259. See, e.g., Thomas, supra note 94, at 84.
  260. See supra note 249 and accompanying text.
  261. Penalties are up to $270 per information return (up to $550 in the case of intentional disregard) and may be assessed separately for both failure to issue to the payee and failure to file with the IRS. For a summary of these penalties, see Increase in Information Return Penalties, IRS, https://www.irs.gov/government-entities/federal-state-local-governments/‌increase-in-information-return-penalties [https://perma.cc/F2NZ-K4CL] (last visited July 17, 2019).
  262. Deficit Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 494, 499 (codified as amended in scattered sections of 26 U.S.C.).
  263. See Staff of J. Comm. on Tax’n, 98th Cong., General Explanation of the Revenue Provisions of the Deficit Reduction Act of 1984, at 840 (Comm. Print 1984).
  264. Id.
  265. Id. at 841.
  266. Id.
  267. Id.
  268. Id. at 843.
  269. Equally important, but beyond this Article’s scope, are potential federalism and comity concerns that may arise when the federal government seeks to tax state programs, to the extent the tax hinders the state’s ability to implement the program.
  270. See Earthquake Mitigation Incentive and Tax Parity Act of 2017, H.R. 1691, 115th Cong. (2017); Earthquake Mitigation Incentive and Tax Parity Act of 2017, S. 2104, 115th Cong. (2017).
  271. Id.
  272. Press Release, Senator Dianne Feinstein, Feinstein and Harris Introduce Legislation to Protect Earthquake Loss Mitigation Incentive Ahead of Senate GOP Tax Bill Release (Nov. 9, 2017), https://www.feinstein.senate.gov/public/index.cfm/press-releases?ContentRecord_‌id=78BD9E69-4090-4E62-AE1A-08A01870F3AB [https://perma.cc/L7UZ-BY8G].
  273. The Brace + Bolt program mentions potential consequences in an FAQ on its website, stating, “The homeowner of a retrofit House under the Program will receive an IRS Form 1099, if applicable, reporting the amount of incentive payments as taxable income to the homeowner for federal income tax purposes.” See Earthquake Brace+Bolt FAQs, https://www.earthquakebracebolt.com/FAQ [https://perma.cc/GXF5-HMEU] (last visited July 24, 2019).
  274. Although state tax credits are generally not taxable, to the extent they reduce a taxpayer’s state tax liability, the refundable portion (if any) of a state tax credit is taxable. See, e.g., Ginsburg v. United States, 922 F.3d 1320, 1322 (Fed. Cir. 2019) (holding that the refundable portion of a New York State tax credit was includible in income for federal income tax purposes).
  275. See supra notes 134–35 and accompanying text.
  276. I.R.C. § 85. However, prior to the enactment of section 85, the IRS treated unemployment payments as excludable. See Rev. Rul. 70-280, 1970-1 C.B. 13.
  277. Failing to tax unemployment compensation also favors such compensation over wages, which may distort decisions to work.
  278. See I.R.C. § 86. Previously, the IRS treated all Social Security benefits as exempt from tax. See Rev. Rul. 70-217, 1970-1 C.B. 13.
  279. See, e.g., Forman, supra note 204, at 795. But see Brian Galle, How to Save Unemployment Insurance, 50 Ariz. St. L.J. 1009, 1062–64 (2018) (arguing for repeal of taxes on unemployment benefits).
  280. Professor Charlotte Crane has observed that this appears to have been the IRS’s historical approach prior to the evolution of the general welfare doctrine. Crane, supra note 217, at 594.
  281. Examples include current exclusions for educational grants, veterans’ benefits, and worker’s compensation payments. See, e.g., I.R.C. § 104(a)(1) (worker’s comp), I.R.C. § 117 (scholarships), 38 U.S.C. § 5301 (veterans’ benefits). Similarly, Medicare benefits, which are not specifically excluded by statute but are treated as such by the IRS, would continue to be excluded. See Rev. Rul. 70-341, 1970-2 C.B. 31–32.
  282. See supra note 167.
  283. See supra notes 261–67 and accompanying text.
  284. See supra note 172.
  285. See Soled & Thomas, supra note 120, at 763–64, 776.
  286. Id. at 814–15.
  287. While section 132 contains a list of specific exclusions in the statute, section 132(o) does delegate authority to Treasury to implement the statute and numerous regulations exist, such as those clarifying what types of benefits qualify as de minimis fringes. See Treas. Reg. § 1.132-6 (as amended in 1992).
  288. Cf. Crane, supra note 217, at 612–13 (discussing the exclusion of transfer payments that do not create new value, regardless of source).
  289. Withholding could be set at a default rate (e.g., 5%), or taxpayers could fill out a form that would determine their withholding rate. These possibilities are discussed in Thomas, supra note 94, at 131–34.
  290. See id. at 111.
  291. Id. at 128.

Lockstepping Through Stop-And-Frisk: A Call to Independently Assess Terry Under State Law

Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat litigation. But after Terry, the state courts became silent. Since 1968, every state court has lockstepped with Terry in interpreting its own constitutional provisions.

This presents a puzzle, since state courts are free to provide more expansive (or less expansive) rights protections in interpreting their own state constitutions. And in other contexts, they have not been shy in doing so. In roughly a quarter of the Supreme Court’s Fourth Amendment cases, state courts have read their state guarantees to exceed the U.S. Constitution’s protections.

Terry’s suspect pedigree further complicates the puzzle. Over the past few decades, stop-and-frisk has helped spark a breakdown in police-community relations. Multiple federal investigations have uncovered its connection to systemic racism. By many accounts, both the stop and the frisk have disproportionately targeted minorities. Terry has also led to nationwide unrest. A Terry stop precipitated the deaths of Eric Garner, Michael Brown, and Freddie Gray.

This Note proposes a change in perspective: that litigants challenge stop-and-frisk under state law. It also lays the groundwork for such challenges. It examines the history of stop-and-frisk at the state level before Terry. It analyzes the Terry litigation, relying especially on the NAACP’s briefing, which accurately predicted stop-and-frisk’s perverse potential. And it synthesizes this analysis into three arguments that should be raised against stop-and-frisk under state law.


In November 2019, former New York City Mayor Michael Bloomberg launched his campaign for the presidency in unprecedented fashion—with an apology.1.Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/­us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”).Show More Speaking at a predominantly Black evangelical church in Brooklyn, Bloomberg renounced the stop-and-frisk policing strategy that had served as a “pillar of his 12-year mayoralty.”2.Id.Show More “The fact is, far too many innocent people were being stopped while we tried to do that,” Bloomberg said, later adding, “I got something important really wrong.”3.Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB].Show More

Despite his contrition, Bloomberg was unable to shake the stigma of the city’s stop-and-frisk policy. “It’s not whether he apologized or not,” argued Joe Biden.4.Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT].Show More “It’s the policy. The policy was abhorrent. And it was in fact a violation of every right people have.”5.Id.Show More Elizabeth Warren echoed these sentiments: “It targeted Black and brown men from the beginning . . . You need a different apology here, Mr. Mayor.”6.Id.Show More The denunciations only escalated after a 2015 video emerged in which Bloomberg expounded a racist methodology for targeting minority communities. “[W]e put all the cops in the minority neighborhoods,” he said.7.Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate, NPR (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3].Show More “Why’d we do it? Because that’s where all the crime is. And the way you should get the guns out of the kids’ hands is throw them against the wall and frisk them.”8.Id.Show More The soundbite went viral and Bloomberg’s candidacy floundered thereafter.

The repercussions of stop-and-frisk extend beyond Bloomberg’s mayoralty in New York City. In 2015, the Department of Justice released its Ferguson Report, investigating the practices that contributed to riots in the St. Louis suburb. Among the DOJ’s cause-and-effect findings was this: an unchecked “pattern of suspicionless, legally unsupportable stops.”9.U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/‌03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7].Show More The Ferguson Police Department “must fundamentally change the way it conducts stops and searches,” the DOJ concluded.10 10.Id. at 91.Show More Other jurisdictions have faced similar controversies. After 250,000 stops in 2009, the Philadelphia Police Department pledged to appoint an independent monitor and retrain officers as part of a settlement agreement with the ACLU.11 11.Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016).Show More The ACLU has been similarly assertive in critiquing the “troubling frequency” of stops in Newark, and it has identified “similar controversies” in Miami, Baltimore, Chicago, and Detroit.12 12.Id. at 5–6.Show More

Americans have heard a lot of stop-and-frisk-related apologies from their elected officials over the past decade.13 13.This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times.Show More But state court judges—many of whom are elected officials in their own right14 14.See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ].Show More—have been conspicuously silent during this time in interpreting their state constitutions. How have they avoided this explosive controversy? In short, they have shielded themselves for decades behind federal precedent. In 1968, the United States Supreme Court constitutionalized stop-and-frisk under the Fourth Amendment in Terry v. Ohio.15 15.392 U.S. 1 (1968).Show More And ever since, state courts have interpreted search-and-seizure protections in their own constitutions in lockstep with Terry.

This Note demands a change. State courts are free to do what they wish, but they should not hide under the umbrella of federal precedent in construing the search-and-seizure guarantees found in their own constitutions. The Supreme Court and state courts alike recognize that “[i]t is an established principle of our federalist system that state constitutions may be a source of ‘individual liberties more expansive than those conferred by the Federal Constitution.’”16 16.State v.Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting PruneyardShopping Center v. Robins, 447 U.S. 74, 81 (1980)).Show More Indeed, over the past few decades, state courts have adopted muscular interpretations of their state provisions to reject controversial criminal procedure decisions like California v. Hodari D.,17 17.499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, seeLaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020).Show More Illinois v. Gates,18 18.462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test).Show More and United States v. Leon.19 19.468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid).Show More As Mayor Bloomberg (and the millions of citizens subjected to stop-and-frisk) can attest to, Terry may be the most controversial of all. And it is time that it receives reassessment in America’s state court systems.

Part I of this Note examines the societal forces that shaped Terry and the state-level decision making that contributed to its enshrinement as Supreme Court precedent. Part II analyzes the Terry litigation, focusing on the problems Terry was designed to solve and the courts’ different methodologies. Part III argues that state courts play a crucial role as guardians of individual rights and, thus, should not lockstep with Supreme Court precedent. Relying upon this analysis, Part IV raises three arguments that could be marshalled against stop-and-frisk under state law. Finally, Part V offers this Note’s conclusion. Michael Bloomberg is on the record. The citizens of New York City, Philadelphia, and other American cities are too. It is time for state courts and state constitutions to have their turn. It is time to reassess stop-and-frisk under state law.

  1. * J.D., University of Virginia School of Law, 2021. I am grateful to Professor Anne Coughlin for her patience and guidance throughout this project. I am also indebted to Louis Capozzi, Justin Aimonetti, Olivia Roat, and the members of the Virginia Law Review for their thoughtful feedback. Thank you to my dear friends Josh Hanley, Drew Mackenzie, Janessa Mackenzie, Blake Page, Anna Cecile Pepper, and Avery Rasmussen for always believing in me. I will miss you next year. Finally, I am deeply blessed to have such a supportive family. John, Margaret, Marlise, Nala, Mom, and Dad, I love you.This Note was inspired by and is dedicated to my father, Jeffrey Sutton.
  2. Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/­us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”).
  3. Id.
  4. Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB].
  5. Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT].
  6. Id.
  7. Id.
  8. Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate,

    (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3].

  9. Id.
  10. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/‌03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7].
  11. Id. at 91.
  12. Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016).
  13. Id. at 5–6.
  14. This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times.
  15. See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ].
  16. 392 U.S. 1 (1968).
  17. State v. Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980)).
  18. 499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, see LaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020).
  19. 462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test).
  20. 468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid).
  21. The Nat’l Advisory Comm’n on Civ. Disorders (The Kerner Comm’n), The Kerner Report 32 (Princeton University Press 2016) (1968).
  22. Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, at
    194, 267–68


  23. The Kerner Comm’n, supra note 20, at 37.
  24. See, e.g., Marcus Casey & Bradley Hardy, 50 Years After the Kerner Commission Report, the Nation is Still Grappling with Many of the Same Issues, Brookings (Sept. 25, 2018), https://www.brookings.edu/blog/up-front/2018/09/25/50-years-after-the-kerner-commission-report-the-nation-is-still-grappling-with-many-of-the-same-issues/ [https://perma.cc/R3UW-C9S5].
  25. Debra Livingston, Gang Loitering, the Court, and Some Realism About Police Patrol, 1999 Sup. Ct. Rev. 141, 178.
  26. Gisske v. Sanders, 98 P. 43, 44–45 (Cal. Ct. App. 1908).
  27. Id. at 45.
  28. Id. at 44.
  29. State v. Hatfield, 164 S.E. 518, 519 (W. Va. 1932).
  30. 54 P.2d 211, 214 (Okla. Crim. App. 1935).
  31. Hatfield, 164 S.E. at 519; Hargus, 54 P.2d at 213.
  32. White & Fradella, supra note 11, at 36.
  33. A few other cases addressed the stop-and-frisk practice during these decades. In State v. Gulczynski, 120 A. 88, 89 (Ct. Gen. Sess. 1922), a Delaware court held that an officer could stop and question a suspect without probable cause, as cited in John A. Ronayne, The Right to Investigate and New York’s “Stop and Frisk” Law, 33 Fordham L. Rev. 211, 215–16 (1964). See also People v. Henneman, 10 N.E.2d 649, 650–51 (Ill. 1937) (holding that police officers had a right to stop and question the plaintiff even though he was not committing any crime at the time of arrest, nor did the officers have reason to believe he had committed a crime); State v. Zupan, 283 P. 671, 675 (Wash. 1929) (holding that police officers were justified in stopping the plaintiff without probable cause to inquire about his business).
  34. Henry F. Fradella & Michael D. White, Reforming Stop-and-Frisk, 18 Criminology, Crim. Just., L. & Soc’y 45, 46–47 (2017) (citing Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev.

    315, 317 (1942)).

  35. Id. at 47.
  36. Goluboff, supra note 21, at 198 (citing Uniform Arrest Act § 2, in Interstate Comm’n on Crime, The Handbook on Interstate Crime Control 87 (4th prtg. 1942)).
  37. Uniform Arrest Act § 3, in Interstate Comm’n on Crime, The Handbook on Interstate Crime Control 87 (4th prtg. 1942).
  38. Warner, supra note 33, at 316–17.
  39. Id. at 317.
  40. Ronayne, supra note 32, at 215 (noting statutes enacted in California, Illinois, Missouri, and Wisconsin).
  41. Frank J. Remington, The Law Relating to “On the Street” Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General, 51 J. Crim. L. Criminology & Police Sci. 386, 387 n.4 (1960).
  42. Warner, supra note 33, at 320; Goluboff, supra note 21, at 199.
  43. Warner, supra note 33, at 320; Goluboff, supra note 21, at 199; see also Goluboff, supra note 21, at 198 (noting that a number of scholars argued that “[d]etention was shorter and thereby less liberty depriving or stigmatizing than arrest for vagrancy”).
  44. Remington, supra note 40, at 391.
  45. Warner, supra note 33, at 324.
  46. U.S. Dep’t of Just., Fed. Bureau of Investigation, 18.2 Uniform Crime Reports 75, 122 (1947).
  47. Id. at 124.
  48. U.S. Dep’t of Just., Fed. Bureau of Investigation, 27.2 Uniform Crime Reports 67, 113 (1956). These statistics probably failed to capture the full gravity of “reasonable suspicion” seizures nationwide. As Caleb Foote asked: “What proportion of the total number of arrests is made up of persons abruptly arrested, investigated for minutes or hours or days, and as abruptly released without booking?” Caleb Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J. Crim. L. Criminology & Police Sci. 402, 406 (1960).
  49. William O. Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 12 (1960).
  50. Id. at 13.
  51. White & Fradella, supra note 11, at 40.
  52. Id.
  53. Brief for the NAACP Legal Defense and Education Fund, Inc. as Amicus Curiae at 34, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67) [hereinafter Brief for the NAACP].
  54. So did the pages of law journals. The NAACP’s brief provides nearly two full pages of critiques of stop-and-frisk doctrine. Among those mentioned are Foote, supra note 47, at 406 (arguing for a “reassess[ment]” of “the role the police should play in our society” focused on “stricter compliance with the [F]ourth [A]mendment”); Theodore Souris, Stop and Frisk or Arrest and Search—The Use and Misuse of Euphemisms, 57 J. Crim. L. Criminology & Police Sci. 251, 262 (1966) (arguing that the country should look to other means of preventing crime “which do not require that we tamper with the most fundamental of our constitutional rights as citizens, our right to be free”); Comment, Police Power to Stop, Frisk, and Question Suspicious Persons, 65 Colum. L. Rev. 848, 866 (1965) (contending that “the Court must proceed to develop rules on the power to stop, frisk and question suspicious persons which, based on analysis, will properly protect the individual’s right to be free from unreasonable imposition by the police”). Brief for the NAACP, supra note 52, at 10–11.
  55. 293 P.2d 52, 53 (1956).
  56. Id. Few state court decisions comprehensively addressed the frisk power before People v. Rivera, 201 N.E.2d 32 (N.Y. 1964). In State v. Collins, 191 A.2d 253, 255 (1963) the Supreme Court of Connecticut was unable to squarely address the frisk power because “[n]othing found as a result of the frisking was offered in evidence.” But in dicta, the court adopted a reasonableness approach under the Fourth Amendment of the federal Constitution and Article I, Section 8 of the Connecticut Constitution. Id. And in People v. Jones, 176 Cal. App. 2d 265, 267 (1959), a California appeals court held that “[w]here reasonable under the circumstances, an officer may run his hands over a person’s clothing to protect himself from attack with a hidden weapon.”
  57. Martin, 293 P.2d at 54 (Carter, J., dissenting).
  58. Id.
  59. Id.
  60. Id.
  61. Harvey E. Henderson Jr., Note, Stop and Frisk in California, 18 Hastings L.J. 623, 625 (1967) (citing People v. Davis, 222 Cal. App. 2d 75, 78 (1963), People v. Hilliard, 221 Cal. App. 2d 719, 723 (1963), People v. Beverly, 200 Cal. App. 2d 119, 125 (1962), and People v. Porter, 196 Cal. App. 2d 684, 686 (1961)).
  62. 163 A.2d 244, 247 (Del. 1960).
  63. Id. at 249.
  64. 171 N.E.2d 5 (Ill. 1960).
  65. Id. at 7; see also Wayne R. LaFave & Frank J. Remington, Controlling the Police: The Judge’s Role in Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987, 1005–06 (1965) (noting that the decisions of a judge may vary based upon the nature of the crime. For example, what is reasonable in a narcotics case is different than what is reasonable in a gambling case).
  66. 364 U.S. 253 (1960).
  67. Id.; see also Remington, supra note 40, at 390–91.
  68. Goluboff, supra note 21, at 202.
  69. Evelle J. Younger, Stop and Frisk: “Say It Like It Is,” 58 J. Crim. L. Criminology & Police Sci. 293, 295 (1967).
  70. Goluboff, supra note 21, at 202 (quoting A. Fairfield Dana, ed., New York State Legislative Annual 67 (1964)).
  71. Ronayne, supra note 32, at 211–12.
  72. Goluboff, supra note 21, at 203. The law became effective on July 1, 1964. See Emanuel Perlmutter, New ‘Frisk’ Law Goes into Effect: Police Are Dubious About Curbs That Go with It, N.Y. Times, July 2, 1964, at 52, https://www.nytimes.com/1964/07/02/archives/new-frisk-law-goes-into-effect-police-are-dubious-about-curbs-that.html [https://perma.cc/ZSW8-HK5H]. Only two weeks later, the Harlem and Bedford-Stuyvesant Race Riots “got their impetus from the killing of a black youngster by a police officer.” Daniel J. Monti, Patterns of Conflict Preceding the 1964 Riots: Harlem and Bedford-Stuyvesant, 23 J. of Conflict Resol

    41, 43–44 n.1 (1979).

  73. Perlmutter, supra note 71.
  74. Josh Segal, Note, “All of the Mysticism of Police Expertise”: Legalizing Stop-and-Frisk in New York, 1961–1968, 47 Harv. C.R.-C.L. L. Rev.
    573, 585

    (2012) (citing Nelson A. Rockefeller, Annual Message to the Legislature (Jan. 8, 1964) in Public Papers of Nelson A. Rockefeller: Fifty-Third Governor of the State of New York 17–18 (1964)).

  75. 367 U.S. 643 (1961) (holding that the Fourth Amendment prohibits prosecutors from using evidence obtained through an unconstitutional search or seizure in a state court).
  76. See, e.g., Richard H. Kuh, Reflections on New York’s “Stop-and-Frisk” Law and Its Claimed Unconstitutionality, 56 J. Crim. L. Criminology & Police Sci. 32, 36 (1965); Arlen Specter, Mapp v. Ohio: Pandora’s Problems for the Prosecutor, 111 U. Pa. L. Rev. 4, 42 (1962).
  77. Goluboff, supra note 21, at 203.
  78. Douglas Dales, Rockefeller Signs Bills Increasing Powers of Police; Bar and Civil Rights Groups Call ‘Stop-and-Frisk’ and ‘No-Knock’ Laws Illegal; Harassment is Feared; But Governor Says Judicial Safeguards Are Provided—Calls Bills Imperative, N.Y. Times, Mar. 4, 1964, https://www.nytimes.com/1964/03/04/archives/rockefeller-signs-bills-increasing-powers-of-police-bar-and-civil.html [https://perma.cc/F7YH-WPP2] [hereinafter Rockefeller Signs Bills].
  79. Id.
  80. And where did New York’s state courts look when they faced this constitutional question? They looked to other state courts. Among the decisions cited by the majority and dissent in People v. Rivera include those mentioned earlier: State v. Collins, 191 A.2d 253 (Conn. 1963); People v. Martin, 293 P.2d 52 (Cal. 1956); Hargus v. State, 54 P.2d 211 (Okla. Crim. App. 1935); State v. Hatfield, 164 S.E. 518 (W. Va. 1932); Gisske v. Sanders, 98 P. 43 (Cal. Ct. App. 1908). People v. Rivera, 201 N.E.2d 32, 35–37 (N.Y. 1964).
  81. People v. Rivera, 38 Misc. 2d. 586, 589 (N.Y. Misc. 1963).
  82. Id.
  83. Id.
  84. Rivera, 201 N.E.2d at 34.
  85. Id. at 35–36.
  86. Id. at 35.
  87. Id. at 36. Justice Traynor had used similar language in a 1962 article: “Such a minor interference with personal liberty would touch the right to privacy only to serve it well.” Roger J. Traynor, Mapp v. Ohio at Large in the Fifty States,

    Duke L.J. 319, 334. After fifty years of stop-and-frisk, one has to imagine the New York state courts would like another look at this constitutional assessment. As Judge Scheindlin lamented in Floyd v. City of New York, “[w]hile it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience.” 959 F. Supp. 2d 540, 557 (S.D.N.Y. 2013).

  88. Rivera, 201 N.E.2d at 37 (Fuld, J., dissenting).
  89. Id. at 38 (citing Douglas, supra note 48, at 12, 13).
  90. Id. at 39.
  91. Id. The ACLU cited Justice Fuld’s “stirring language” as a conclusion to its amicus brief in Terry: “The loss of liberty entailed in authorizing a species of search on the basis of mere suspicion is too high a price to pay for the small measure of added security it promises.” Brief of ACLU, et al. as Amici Curiae, at 33, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67).
  92. Rivera, 201 N.E.2d.
  93. Right to Frisk Gets Supreme Court OK, Cleveland Press, June 10, 1968, at A1, A12, available at https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?‌article=1003&‌con‌text‌‌=‌terryvohio_newspaper [https://perma.cc/LG2Y-VAX7].
  94. Id. at A12.
  95. State v. Chilton, 95 Ohio L. Abs. 321, 325 (1964).
  96. Bus Bergen, Illegal Search is Charged at Concealed Weapons Trial, Cleveland Press, Sept. 22, 1964, available at https://engagedscholarship.csuohio.edu/cgi/viewcontent–.cgi?article=1005&context=terryvohio_newspaper [https://perma.cc/Z5SW-XYT3].
  97. Id.; Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View, 74 Miss. L.J. 423, 431 (2004). Accounts dispute the number of times the suspects “repeated this ritual.” Terry v. Ohio, 392 U.S. 1, 6 (1968). The United States Supreme Court believed that “roughly a dozen trips” were taken. Id. But the Court of Appeals of Ohio claimed the suspects walked past the store “two to five times by both men.” State v. Terry, 214 N.E.2d 114, 116 (Ohio Ct. App. 1966). It turns out Officer McFadden’s memory was particularly fuzzy on this point. In his police report from the day of the incident, he claimed they looked into the store “about three times each.” Katz, supra, at 431. Later, at a suppression hearing, he upped the ante to “four or five times apiece” and eventually to “four to six trips each.” Id. Finally, at trial, he confessed “maybe four to five trips, maybe a little more, it might be a little less. I don’t know, I didn’t count the trips.” Id. For some, this pointed to a potential problem with the reasonable suspicion standard. Ambiguous evidence like the number of times a suspect walked by a store or their “mumbled response” to a question could foster suspicion when all an officer had to go on was “they didn’t look right to me.” Id. at 430, 434. Tellingly, these nuances were largely lost on the trial court judge, who noted, “There is no question about the facts in this case.” Chilton, 95 Ohio L. Abs. at 322.
  98. Terry, 392 U.S. at 6.
  99. Id. at 6–7.
  100. Id.
  101. Id.
  102. Id. at 7.
  103. Id. This is a familiar story, so for the sake of brevity I have omitted many of the details. For a more comprehensive account, see, for example, id. at 5–8; Stephen A. Saltzburg, Terry v. Ohio: A Practically Perfect Doctrine, 72 St. John’s L. Rev. 911, 912–14 (1998); Katz, supra note 96, at 430–34.
  104. See Saltzburg, supra note 102, at 914–15.
  105. State v. Chilton, 95 Ohio L. Abs. 321, 322 (1964).
  106. Id. at 323. Indeed, Judge Friedman cited both People v. Rivera and People v. Martin in his opinion, demonstrating that the laboratories of democracy were aware of each other’s precedent. Id. at 324.
  107. Id. at 322.
  108. Id. at 323.
  109. The name of the defendant changed because Richard Chilton was killed in a drug store holdup in Columbus in June 1867. James T. Cox, Bullets Write Finish to Chilton Case, Cleveland Plain Dealer, June 18, 1967, available at https://engagedscholarship.‌csuohio.edu/cgi/viewcontent.cgi?article=1015&context=terryvohio_newspaper [https://perma.cc/C343-P2YJ].
  110. Brian Albrecht, Hough Riot, 50 Years Ago, Couldn’t Destroy a Neighborhood, Cleveland.com (July 24, 2016), https://www.cleveland.com/metro/2016/07/hough_riot_–50_years_ago_couldn.html [https://perma.cc/Z9ZN-ZCZ9].
  111. Marc E. Lackritz, The Hough Riots of 1966, 1, 8 (Apr. 10, 1968) (B.A. thesis, Princeton Univ.).
  112. Id. at 9. Another policeman described the riots as “like the part in an old western where you’re caught in crossfire in a box canyon.” Id. at 8.
  113. State v. Terry, 214 N.E.2d 114, 117 (Ohio Ct. App. 1966). The citations included Gisske, Faginkrantz, Rivera, and Martin. Id.
  114. Id. at 118 (looking to various other state tribunals because “[t]he courts of Ohio do not appear to have been squarely presented with this problem before”).
  115. Id. The NAACP took particular exception to this phrase in its amicus brief. Over the course of five pages, the Association explained how even the most discrete of police encounters—a “hey, there”—might be interpreted as a threat by “the man in the ghetto.” Brief for the NAACP, supra note 52, at 35. Compounding the injustice was the fact that these stops would occur “day in day out, and for the same reasons.” Id.
  116. Terry, 214 N.E.2d at 120.
  117. Id. at 120. See also Saltzburg, supra note 102, at 916 (“The court was careful to distinguish a frisk for dangerous weapons from a ‘search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest.”).
  118. Goluboff, supra note 21, at 200.
  119. Id.; see, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (applying the exclusionary rule against the states); Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963) (mandating the appointment of counsel under the Sixth Amendment in all state court prosecutions); Escobedo v. Illinois, 378 U.S. 478, 479, 484 (1964) (holding that Illinois denied a suspect in custody the assistance of counsel in violation of the Sixth Amendment); Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding that a defendant “must be warned prior to any questioning that he has the right to remain silent . . . .”).
  120. Earl Warren, The Memoirs of Chief Justice Earl Warren 316 (Madison Books 2001) (1977); see also Michal R.

    Belknap, The Supreme Court under Earl Warren, 1953–1969, at 218 (2005) (detailing the Warren court’s creation of new constitutional rules of criminal procedure applicable to the states); Paul Moke, Earl Warren and the Struggle for Justice 209–11 (2015).

  121. Jack H. Pollack, Earl Warren: The Judge Who Changed America 267–68 (1979); see also Leo Katcher, Earl Warren: A Political Biography 440 (1967) (noting Chief Justice Warren’s concern about abusive police practices).
  122. Goluboff, supra note 21, at 201 (citing 2 Albert J. Reiss, Studies of Crime and Law Enforcement in Major Metropolitan Areas 112 (1967)).
  123. Goluboff, supra note 21, at 205. McFadden had thirty-nine years of experience at the time of the arrest.
  124. Brief for the ACLU, supra note 90, at 31 (citing McDonald v. United States, 335 U.S. 451, 456 (1948)).
  125. Id. at 31–32.
  126. Brief for the NAACP, supra note 52, at 24.
  127. Id. at 21. Demonstrating its complete distrust of the local officer, the NAACP drew a clear line: “Concerning both the occasions and extent of police intrusion upon the individual, ‘nothing is left to the discretion of the officer.’” Id. (citing Berger v. New York, 388 U.S. 41, 58 (1967)). Part IV addresses the NAACP’s analytical approach to the Fourth Amendment and probable cause in more detail.
  128. Brief for the NAACP, supra note 52, at 22–24. In fact, the NAACP already had evidence of the malleability of the stop-and-frisk framework. Simultaneously, litigation was ongoing regarding whether the police could seize contraband from a suspect “wholly within” an officer’s control, whether a policeman could reach into a suspect’s pocket to grab evidence without first frisking the defendant, and whether a frisk could “encompass the search of an automobile in which the ‘stopped’ suspect is riding.” Id. at 49–50.
  129. Id. at 51, 58.
  130. Id. at 62. The NAACP tried to convey to the Justices how stop-and-frisk played out in practice, citing to specific police manuals and instructions. See, e.g., id. at 45–46. One such manual encouraged officers to: “Be suspicious. This is a healthy police attitude . . . .” Id. at 45. Another provided a list of individual qualities that might justify field interrogation, like “known trouble-makers” or “unescorted women or young girls in public places.” Id. at 46. In case the list was not exhaustive enough, number twenty conferred complete discretion: “Many others. How about your own personal experiences?” Id. Goluboff, supra note 21, at 207 called my attention to this part of the brief.
  131. Brief for the NAACP, supra note 52, at 62. (As the New York Times noted: “[T]he script was familiar. Some minor incident begins it all, often the arrest of a Negro by a policeman.”). Americans outside the ambit of the Court’s briefing also understood the stakes. The Cleveland Plain Dealer would note after oral arguments that the case was heard “against a background of day-by-day stop-and-frisk actions by police that are increasingly resented by Negroes and others in the big-city ghettos.” Sanford Watzman, High Court Sifts Street Search Arguments, Cleveland Plain Dealer 5 (1967), available at https://engagedscholarship.csuohio.edu–/cgi/viewcontent.cgi?article=1004&context=terryvohio_newspaper [https://perma.cc/Y97X-YC6E].
  132. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
  133. Earl C. Dudley, Terry v. Ohio, the Warren Court, and the Fourth Amendment: A Law Clerk’s Perspective,

    St. John’s L. Rev. 891, 892 (1998).

  134. Id. Title II of the Omnibus Crime Control and Safe Streets Act, which included provisions designed to overturn Miranda, was also passed in 1968. Belknap

    supra note 119, at 255.

  135. In 1967, the year before Terry was decided, “one out of eight policemen across the country was assaulted.” Goluboff, supra note 21, at 268.
  136. Dudley, supra note 132, at 892.
  137. Katz, supra note 96, at 440 n.88 (citing Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. Ill. L.F. 518, 538).
  138. Belknap

    supra note 119, at 256.

  139. McCray v. Illinois, 386 U.S. 300, 300 (1967).
  140. Id. at 304.
  141. Warden v. Hayden, 387 U.S. 294, 294, 307–08 (1967).
  142. Goluboff, supra note 21, at 206. Between 1960 and 1965, the national violent crime rate jumped 24.4%. Katz, supra note 96, at 435 n.79. Then, from 1965 to 1970, it spiked 81.6%. Id. This was precisely what the government felt that field interrogations were designed to solve.
  143. Brief for the State of Ohio at 40, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67).
  144. Id. at 15.
  145. Id. at 41.
  146. Id.
  147. Id.
  148. Dudley, supra note 132, at 893.
  149. Goluboff, supra note 21, at 210. Around this time, the Court expressed a similar concern about unbounded police discretion in the context of the vagueness doctrine. See Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 356 (2021) (observing that the Court invalidated an ordinance prohibiting loitering in Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) “because of the excessive authority it granted to police” and “enabled them to make their own decisions about when loitering would and would not be allowed”).
  150. Id.
  151. Terry v. Ohio, 392 U.S. 1, 8–9 (1968).
  152. David A. Harris, Addressing Racial Profiling in the States: A Case Study of the “New Federalism” in Constitutional Criminal Procedure, 3 U. Pa. J. Const. L. 367, 373–74 (2001).
  153. Terry, 392 U.S. at 17. Dudley recalls that Chief Justice Warren was also skeptical of the “scope of the authority claimed by the police.” The power to “detain” on suspicion seemed “susceptible of major abuse” given the Kerner Commission’s reports about “aggressive patrol” tactics and the “political tensions” that “ran high” during the Cold War. Dudley, supra note 132, at 893.
  154. Terry, 392 U.S. at 10.
  155. Id.
  156. Id. at 22.
  157. Id. at 23. As Dean Goluboff notes, “[c]ertainly, the guns McFadden found on Terry and Chilton illustrated the need for the police to have authority to protect their own lives.” Goluboff, supra note 21, at 209–10.
  158. Dudley, supra note 132, at 895; see also Saltzburg, supra note 102, at 922 (“This analysis virtually ignored the potential ‘stop’ aspect of the case . . . . Were they free to leave? Was this a seizure? The Court neither asked nor answered these questions.”).
  159. Terry, 392 U.S. at 26. In other words, the officer had to limit the scope of his search to a protective “pat-down” “reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. at 29–30. He could not conduct a full-on search incident to arrest for contraband or evidence relevant to the crime. Moreover, the officer could not “place his hands in their pockets or under the outer surface of their garments until he had felt weapons.” Id.
  160. Terry, 392 U.S. at 28.
  161. Id. at 33 (Harlan, J., concurring); Dudley, supra note 132, at 895.
  162. Terry, 392 U.S. at 32 (Harlan, J., concurring).
  163. Id.
  164. Id. at 33–34.
  165. But see Katz, supra note 96, at 457 n.144. Harlan’s assessment that the right to frisk flowed automatically from the stop has not been adopted by courts. The two remain separate inquiries.
  166. Terry, 392 U.S. at 38 (Douglas, J., dissenting).
  167. Id. at 37, 38.
  168. Id. at 39. In Terry, the Chief Justice cited statistics demonstrating the assaults, injuries, and deaths that policemen had incurred over the past decade. Terry, 392 U.S. at 24 n.21. These were the same type of statistics cited by the law enforcement associations in their briefs.
  169. Id. at 39.
  170. Id.
  171. Dudley, supra note 132, at 893.
  172. While the state courts agreed with the Justices’ evaluation of the frisk, none of them had uncoupled the frisk and the stop like the Chief Justice.
  173. E.J. Kissell, Court Ruling is Gratifying to Detective in Frisk Case, Cleveland Press (June 11, 1968), https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1002&–context=terryvohio_newspaper [https://perma.cc/84MB-XPYU].
  174. Brown v. Allen, 344 U.S. 443, 540. (1953) (Jackson, J., concurring).
  175. U.S. Const., art. III, § 1.
  176. This section draws generally on insights from Jeffrey Sutton, 51 Imperfect Solutions (2018).
  177. Justice Kavanaugh offered this reminder to litigants in a recent Establishment Clause blockbuster, American Legion v. American Humanist Association, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring). Even though the individuals challenging the Bladensburg cross had lost at the federal level, Justice Kavanaugh reminded them that they still could appeal to their state constitution. Maryland courts were free to provide more expansive protections for religious liberty under their founding document. The Supreme Court “is not the only guardian of individual rights in America.” Id. (citing Sutton, supra note 175). Both sides of the Court are in agreement on this point. In Robinette v. Ohio, 519 U.S. 33, 42 (1996) (Ginsburg, J., concurring), a Fourth Amendment case, Justice Ginsburg agreed that “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards.” (citing Oregon v. Hass, 420 U.S. 714, 719 (1975)).
  178. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447, 455 (1990).
  179. Id. at 455.
  180. The Michigan Supreme Court reminded litigants that the “appropriate analysis of our constitution does not begin from the conclusive premise of a federal floor.” Sitz v. Dep’t of State Police, 506 N.W.2d 209, 217 (Mich. 1993).
  181. Id. at 225.
  182. Id. at 223–24.
  183. The Federalist No. 51 at 339 (James Madison); see also William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev.

    , 504 (1977) (“[W]e may be confident that [Madison] would welcome the broadening by state courts of the reach of state constitutional counterparts beyond the federal model . . . .”).

  184. The Federalist No. 51 at 339 (James Madison); see also The Federalist No. 10 at 61 (James Madison) (“The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.”).
  185. Stephen Kanter, Sleeping Beauty Wide Awake: State Constitutions as Important Independent Sources of Individual Rights 15 Lewis & Clark L. Rev. 799, 801–02 (2011). (quoting James Wilson, Of Government, in The Works of the Honorable James Wilson, L.L.D. 383, 398 (1804)).
  186. The Federalist No. 46 at 305 (James Madison).
  187. Id. at 307.
  188. Id. Professor Micah Schwartzman deserves credit for many of the insights in this paragraph. The organization of the virtues of federalism section into the categories of individual choice, competition, experimentation, prevention against tyranny, and protection of liberty stems from one of his class lectures.
  189. The Federalist No. 51 at 337 (James Madison).
  190. The Federalist No 46 at 305 (James Madison).
  191. For instance, one can imagine a jurisdiction that strikes down stop-and-frisk under its state constitution proving particularly appealing for minorities who have been the subject of profiling or allies who hope to live in a jurisdiction that embraces their concern for social justice. Independent interpretation of state constitutions also is neutral, as it applies equally to liberty and property rights, individual rights, and structural rights.
  192. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
  193. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev.

    , 503 (1977).

  194. Id. at 495, 503.
  195. Robert Williams, The Law of American State Constitutions 137 (2009); Goodwin Liu, State Constitutions and the Protections of Individuals Rights: A Reappraisal, 2018 Forum for State Appellate Court Judges, Pound Civil Justice Institute 51 (2019), http://www.poundinstitute.org/wp-content/uploads/2019/04/2018_forum-report_2.26.19.pdf [https://perma.cc/T2QY-AHVR]; see also, State v. Hempele, 576 A.2d 793, 800 (N.J. 1990) (“Cognizant of the diversity of laws, customs, and mores within its jurisdiction, the United States Supreme Court is necessarily ‘hesitant to impose on a national level far-reaching constitutional rules binding on each and every state.’” (citing State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring))).
  196. Furthermore, as Justice Brandeis warned, “[d]enial of the right to experiment may be fraught with serious consequences to the Nation.” New State Ice Co., 285 U.S. at 311. Indeed, one of the benefits of state experimentation is that it would serve as an essential check against tyranny and a separate source of liberty for the people. State courts can prevent tyranny by serving as an intermediary against federal overreach—a separate forum for Americans to air their grievances. And they can protect liberty by enforcing separate state legal regimes to protect Americans from laws passed in excess of governmental power. For a cautionary story of how state courts have served this role, see Sutton, supra note 175, at 84–132 (describing how state courts initially voided a number of early eugenics laws as unconstitutional, before ceding the field to the Supreme Court’s interpretation of the Due Process and Equal Protection Clauses of the federal Constitution in Buck v. Bell, 274 U.S. 200 (1927)).
  197. In the words of Jacob Landynski, the Fourth Amendment has “both the virtue of brevity and the vice of ambiguity.” Tracey Maclin, The Central Meaning of the Fourth Amendment 35 Wm. & Mary L. Rev. 197, 247 (1993) (quoting Jacob W. Landynski, Search and Seizure and the Supreme Court 42 (1966)).
  198. Compare Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 759 (1994) (“We need to read the Amendment’s words and take them seriously: they do not require warrants, probable cause, or exclusion of evidence, but they do require that all searches and seizures be reasonable.”); Telford Taylor, Two Studies in Constitutional Interpretation 91–92 (1969) (critiquing the Court for “treat[ing] warrantless searches as disreputable second cousins” while recognizing that “I am swimming against the current of opinion.”); Richard Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49, 75 (“Probable cause, a phrase from the second clause of the Fourth Amendment, is a limitation on the issuance of warrants; it is not part of the definition of reasonableness”), with Maclin, supra note 196, at 202 (“At a minimum, the Fourth Amendment commands compelling reasons, or at least a substantial justification, before a warrantless search or seizure is declared reasonable.”); United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J., dissenting) (“When the Fourth Amendment outlawed ‘unreasonable searches’ and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is ‘unreasonable’ unless a warrant authorizes it, barring only exceptions justified by absolute necessity.”); Harris v. United States, 331 U.S. 145 (1947) (Jackson, J., dissenting) (“[N]o search of premises, as such, is reasonable except the cause for it be approved and the limits of it fixed and the scope of it particularly defined by a disinterested magistrate.”).
  199. Which may not always be a given, although state protections do closely mirror the Fourth Amendment.
  200. In the context of the right to counsel, for instance, states that provided broader protections than the United States Supreme Court cited historical evidence from their state ratifying conventions to justify their interpretation. See Louis J. Capozzi III, Sixth Amendment Federalism, 43 Harv. J.L. & Pub. Pol’y 645, 684 (2020) (observing that the Iowa Supreme Court studied the debates surrounding the state’s right-to-counsel provision to “justify the court’s holding that the state constitution guaranteed the right to counsel to all defendants charged with a jailable offense”). Originalist judges should do the same with respect to their state search and seizure provisions.
  201. People v. Sundling, 395 N.W.2d 308 (Mich. Ct. App. 1986). Many of the state cases I cite in the next few pages were found in: Faulkner & Green, supra note 17.
  202. State v. Quino, 840 P.2d 358, 362 (Haw. 1992).
  203. Id. at 365 (Levinson, J., concurring).
  204. Id.
  205. See, e.g., State v. Guzman, 842 P.2d 660, 671 (Idaho 1992) (rejecting Leon’s deterrence rationale for the exclusionary rule. Under state law “this Court has held that the exclusionary rule does more than merely deter police misconduct.” It is also “a constitutionally mandated remedy for illegal searches and seizures.”); State v. Oquendo, 223 Conn. 635, 651 (Conn. 1992) (“We are persuaded that the distinction made by the United States Supreme Court between an arrest and an attempted arrest at common law does not guide our determination of what constitutes a seizure under . . . our state constitution.”); In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (“[W]e reject [Hodari] because . . . we are not persuaded by the arguments favoring the Hodari approach, and . . . we are persuaded that there is no need to depart from the pre-Hodari approach.”); Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (stating that the Gates totality-of-the-circumstances test “is flexible, but [it] is also ‘unacceptably shapeless and permissive.’ The Federal test lacks the precision that we believe can and should be articulated in stating a test for determining probable cause.” (citation omitted)); State v. Jones, 706 P.2d 317, 324 (Alaska 1985) (“After carefully reviewing the majority’s reasoning in Gates, we conclude [it] does not provide the constitutional protection against unreasonable searches and seizures required by [the Alaska constitution].”).
  206. State courts, after all, can weigh geographic and demographic considerations unique to their jurisdictions. Crime rates and police practices vary between cities and states. For a thoughtful study of this factor in the context of the right to appointed counsel, see Capozzi III, supra note 199, at 709–10, 712–13.
  207. California v. Greenwood, 486 U.S. 35, 37 (1988).
  208. Id. at 36, 43.
  209. In Greenwood, police acquired the garbage from a trash collector. 486 U.S. at 37. In Hempele, the police themselves removed the garbage. State v. Hempele, 576 A.2d 793, 796 (N.J. 1990).
  210. State v. Hempele, 576 A.2d 793, 807–08 (N.J. 1990).
  211. Id. at 808.
  212. Id.
  213. Id.
  214. Id. at 814.
  215. See, e.g., State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019) (quoting State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa 2016)) (“We jealously guard our right to construe a provision of our state constitution differently than its federal counterpart, though the two provisions may contain nearly identical language and have the same general scope, import, and purpose.”); Interest of B.C., 683 A.2d 919, 926 (Pa. Super. Ct. 1996) (“[I]t is well settled that our courts are free to establish greater protection of such rights in the provisions of the Pennsylvania Constitution.”); State v. Oquendo, 613 A.2d 1300, 1309 (Conn. 1992) (“[W]e have at times determined that the state constitution affords greater protections to the citizens of Connecticut than does the federal constitution, as interpreted by the United States Supreme Court.”).
  216. Faulkner & Green, supra note 17, at 198.
  217. I use Green’s estimate, taken from Harold Spaeth’s databases (available at http://scdb.wustl.edu/index.php), of 342 “Fourth Amendment” cases. Id.
  218. Id. at 200. Faulkner & Green cite one case, State v. Lopez, 896 P.2d 889 (Haw. 1995), in which they contend Hawaii departed from Terry. But the case is not about stop-and-frisk; it is about the unconstitutional search of a home. Moreover, in cases like State v. Ugalino, 107 Haw. 144, 150 (2000), Hawaii courts have “applied the standards set forth in Terry in determining whether police conduct complied with” the Hawaii constitution.
  219. Benjamin Zycher, Michael Bloomberg and the Stop-and-Frisk About Face, Am. Enter. Inst. (Nov. 19, 2019), https://www.aei.org/politics-and-public-opinion/‌michael-bloomberg-and-the-stop-and-frisk-about-face/ [https://perma.cc/B47W-YBEX].
  220. Maclin, supra note 196, at 202.
  221. Terry, 392 U.S. at 17, 26.
  222. Id. at 33 (Harlan, J., concurring).
  223. See Kavanagh v. Stenhouse, 174 A.2d 560, 562 (1961); People v. Rivera, 201 N.E.2d 32, 34–35 (1964).
  224. See Brief for the NAACP, supra note 52, at 26–27.
  225. This is not to say that the NAACP was at all comfortable with the current state of criminal procedure or the functioning of probable cause in American society. Asking if the standard “function[ed] unerringly, or with perfect clarity,” the brief responded sharply: “Of course, it does not.” Even in the progressive sixties, Black and brown Americans were still fighting a rearguard action to protect “the only standard which [the] Court ha[d] ever developed under the Fourth Amendment for judicial regulation of the police.” Id. at 29–30.
  226. Id. at 27.
  227. Id. at 29.
  228. Id. at 39.
  229. Id. at 39–40.
  230. Id. at 40 (citing Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 22 (1958)).
  231. People v. Martin, 293 P.2d 52, 55 (1956) (Carter, J., dissenting) (quoting People v. Simon, 290 P.2d 531, 534 (1955)).
  232. See Rockefeller Signs Bills, supra note 77.
  233. Floyd v. City of New York, 959 F. Supp. 2d 540, 575 (S.D.N.Y. 2013).
  234. Id. at 558–59.
  235. Id. at 578.
  236. Id. at 559. In fact, this trend was only increasing when Floyd was decided. From 2004 to 2009, “the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.” Id.
  237. See, e.g., The National Association for the Advancement of Colored People

    Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America, (2014), https://www.prisonpolicy.org/scans/naacp/Born_Suspect_Report_final_web.pdf [https://perma.cc/MML3-HUVV].

  238. Floyd, 959 F. Supp. 2d at 559.
  239. Id.
  240. Ashley Southall & Michael Gold, Why ‘Stop-and-Frisk’ Inflamed Black and Hispanic Neighborhoods, N.Y. Times (Nov. 17, 2019), https://www.nytimes.com/2019/11/17/–nyregion/bloomberg-stop-and-frisk-new-york.html [https://perma.cc/F67P-Y29X].
  241. Ray Rivera, Al Baker, & Janet Roberts, A Few Blocks, 4 Years, 52,000 Police Stops, N.Y. Times (July 11, 2010), https://www.nytimes.com/2010/07/12/nyregion/12frisk.html [https://perma.cc/W4EE-8JVB].
  242. Id.
  243. Id.
  244. One reason that state constitutions provide a helpful mechanism to question stop-and-frisk is that the practice’s ramifications differ across the country. The examples below are from major cities, where Black Americans have been disproportionately stopped. Perhaps stop-and-frisk would be more palatable in a rural state where the same discriminatory practices are not as common.
  245. Chad Pradelli & Cheryl Mettendorf, Racial Disparities in Philadelphia Police’s Use of Stop-and-Frisk, Data Shows, 6 ABC Philadelphia (Sept. 9, 2020), https://6abc.com/stop-and-frisk-philadelphia-data-philly/6413942/ [https://perma.cc/8H9R-8ATC].Black residents make up 40% of Philadelphia’s population, but roughly 70% of the stops targeted Black Americans. Id.
  246. A.D. Quiq & Sarah Zimmerman, ‘Stop and Frisk’ Still Disproportionately Impacting Black Chicagoans: Study, Crain’s Chicago Business


    . 24, 2019)

    , https://www.chicagobusiness.com/government/stop-and-frisk-still-disproportionately-impacting-black-chicagoans-study [https://perma.cc/Z2S7-FPUC]. But see Monu Bedi, Commentary: Stop-and-Frisk Is Not Racist, and We Need to Stop Saying It Is, Chicago Tribune (Mar. 2, 2020), https://www.chicagotribune.com/opinion/commentary/ct-opinion-stop-and-frisk-police-bloomberg-20200302-6skrfrw5ujcppjdmq2jkqwmnya-story.html [https://perma.cc/5YPE-3MZX].

  247. Elliot C. Williams, New Stop-And-Frisk Data Still Shows Wide Racial Disparities in D.C., DCist

    (Mar. 5, 2020), https://dcist.com/story/20/03/05/new-stop-and-frisk-data-still-shows-wide-racial-disparities-in-d-c/ [https://perma.cc/RT5X-F4HJ]. See also Brianne K. Nadeau, Opinion, End Stop and Frisk in D.C., Wash. Post (Feb. 15, 2019), https://www.washingtonpost.com/opinions/localopinions/end-stop-and-frisk-in-dc/2019/02/14/cdd59c2c-2fab-11e9-8ad3-9a5b113ecd3c_story.html [https://perma.cc/FY9F-78YV] (calling on officials to “end the practice of stop and frisk in the District.”). But see Peter Newsham, Opinion, Yes, D.C. Police Use Stop and Frisk, but in a Legal Manner, Wash. Post (Feb. 22, 2019), https://www.washingtonpost.com/opinions/yes-dc-police-use-stop-and-frisk-but-in-a-legal-manner/2019/02/22/b85f6518-35f9-11e9-8375-e3dcf6b68558_story.html [https://perma.cc/GLA2-SFML].

  248. NAACP

    supra note 236.

  249. See discussion supra Part III.
  250. Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 St. John’s L. Rev. 1097, 1125 (1998).
  251. Brief for the NAACP, supra note 52, at 22–23; Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 366 (1974) (“[T]he primary abuse thought to characterize the general warrants and the writs of assistance was their indiscriminate quality, the license that they gave to search Everyman without particularized cause . . .”). For a more in-depth study, see generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791 (2009) (surveying the history of unreasonable searches and seizures stemming from the traditional British maxim of privacy within the home and shaped by early use of the general warrant).
  252. See Cuddihy

    supra note 250, at 602 (“[T]he laws and constitutions of most states abrogated general warrants and searches years before the Fourth Amendment did so.”). Cuddihy also noted,

    Not only did those [state] constitutions disallow general warrants, they also elevated specific warrants, probable cause, and the idea of unreasonable search and seizure to the position of higher law.” Id. at 603. In particular, “John Adams articulated the most far-reaching repudiation of general warrants in the constitutions of 1776–84.” Id. at 609.

  253. Terry v. Ohio, 392 U.S. 1, 17 (1968); see also Brief for the NAACP, supra note 52, at 35–38.
  254. People v. Rivera, 201 N.E.2d 32, 36 (1964) (Fuld, J., dissenting).
  255. Terry, 392 U.S. at 29.
  256. Id. at 27.
  257. A study by the New York Civil Liberties Union showed a frisk occurring in 66% of stops. NYCLU, Stop-and-Frisk in the De Blasio Era 14 (2019), https://www.nyclu.org/–en/publications/stop-and-frisk-de-blasio-era-2019 [https://perma.cc/5U2X-QHAT].
  258. White & Fradella, supra note 11, at 110.
  259. Brief for the NAACP, supra note 52, at 50.
  260. Id. (quoting People v. Taggart, 229 N.E.2d 581, 586 (N.Y. 1967)).
  261. White & Fradella, supra note 11, at 63. A more recent study in the De Blasio era found weapons discovered in 7% of frisks. NYCLU, supra note 256.
  262. White & Fradella, supra note 11, at 104 (citing Report of Jeffrey Fagan, Ph.D., at 4, Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013)).
  263. Id. See also Benjamin Mueller, It Wasn’t a Crime to Carry Marijuana. Until the Police Found a Loophole., N.Y. Times (Aug. 2, 2018), https://www.nytimes.com/2018/08/02/–nyregion/marijuana-police-nyc.html [https://perma.cc/8QE9-VCUV] (describing how “police officers stopping and frisking people [would] ask[] them to empty their pockets, and when marijuana fell out, [the police officers would] arrest[] them because their hidden stash had suddenly become ‘open to public view’”).
  264. Mueller, supra note 262; see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness

    (2010) (noting that stop-and-frisk operations “amount to much more than humiliating, demeaning rituals for young men of color” and “often serve as the gateway into the criminal justice system”).

  265. Stop-and-Frisk: The Facts, ACLU N.J., https://www.aclu-nj.org/theissues/–police‌practices/newark-stop-and-frisk-data/stop-and-frisk-facts [https://perma.cc/KH7K-722K].
  266. Pradelli & Mettendorf, supra note 244.
  267. Eric Flack & Jordan Fischer, DC Police Search and Frisk Black People 6 Times More Often During Stops, Data Shows,

    (June 15, 2020), https://www.wusa9.com/article/–news/crime/stop-and-frisk/blacks-6-times-more-likely-to-be-searched-in-dc-than-whites-stop-and-frisk-black-lives-matter/65-379ed07f-bc94-45c0-a7a8-2193601c6df0 [http://perma.cc/VH47-V3U2].

  268. Floyd v. City of New York, 959 F. Supp. 2d 540, 559 (S.D.N.Y. 2013) (“In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.”); see also ACLU of Ill., Stop and Frisk in Chicago 23 (2015), https://www.aclu-il.org/sites/default/files/wp-content/uploads/2015/03/ACLU_–StopandFrisk_6.pdf [https://perma.cc/XJL2-ZKHV] (“A study prepared for the ACLU of Southern California found that during a one-year period from 2003 to 2004, black and Hispanic residents were far more likely to be stopped, frisked, searched and arrested than white residents, and that black and Hispanic residents who were searched were less likely to have contraband than white residents.”).
  269. White & Fradella, supra note 11, at 110.
  270. Id. (“88 percent of young people surveyed believe that residents of their neighborhood do not trust the police.”).
  271. Id. at 109.
  272. Center for Constitutional Rights, Stop and Frisk: The Human Impact 5 (2012), https://ccrjustice.org/sites/default/files/attach/2015/08/the-human-impact-report.pdf [perma.cc/7DEF-WWK4]; see also Jason Meisner, Chicago Sued Over Police Department’s Alleged Stop-and-Frisk Practices, L.A. Times (Apr. 21, 2015), https://www.latimes.com/–nation/ct-stop-and-frisk-lawsuit-met-20150421-story.html (describing alleged constitutional abuses like excessive force) [https://perma.cc/N2G7-2JZG].
  273. Center for Constitutional Rights, supra note 271, at 5. These are a few accounts of NYPD encounters during the Floyd era. “It’s the difference between frisking somebody and going in [their] underwear or like putting gloves on outside, checking other people’s private areas, and people’s rectal area to see if they have drugs in them. It’s just too much, outside—that’s embarrassing.” Id. (alteration in original). Another said:My jeans were ripped. I had bruises on my face. My whole face was swollen . . . . I felt like I couldn’t defend myself, didn’t know what to do. No witnesses there to see what was going on. I just wish someone was there to witness it. I felt like no one would believe me. I couldn’t tell anyone. I kept it in till now . . . I still am scared.

    Id. (second alteration in original).

  274. ACLU of Ill., supra note 267, at 21.
  275. Id. at 22–23.
  276. Center for Constitutional Rights, supra note 271, at 5–6.
  277. Id. at 6.
  278. White & Fradella, supra note 11, at 10–11.
  279. 508 U.S. 366, 381 (1993) (Scalia, J., concurring).
  280. Id.
  281. Id. at 380.
  282. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
  283. Brief for the NAACP, supra note 52, at 38.
  284. See Kansas v. Carr, 577 U.S. 108, 118 (2016) (“The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions.”) (citing Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev. 1963, 1971–77 (2008)).
  285. Terry, 392 U.S. at 29; see also People v. Faginkrantz 171 N.E.2d 5, 7 (1960) (“What the constitution prohibits is an unreasonable search and seizure, and the circumstances of this case do not establish that the search was unreasonable.”).
  286. See supra note 86 and accompanying text.
  287. Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257, 264 (1984).
  288. Amar, supra note 249, at 1098.
  289. Id.
  290. Id.
  291. Brief for the NAACP, supra note 52, at 45.
  292. See, e.g., Opinion, Stop Talking and Start Listening, White People, Wash. Post (June 9, 2020), https://www.washingtonpost.com/opinions/stop-talking-and-start-listening-white-people/2020/06/09/7071da24-a9a2-11ea-a43b-be9f6494a87d_story.html [perma.cc/Q8J6-M5NU].
  293. White & Fradella, supra note 11, at 10–11.
  294. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring).
  295. Confirmation Hearing on the Nomination of Amy Coney Barrett To Be an Associate Justice on the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2020) (statement of Amy Coney Barrett, Judge).
  296. Id.
  297. Brennan, supra note 182, at 503.
  298. Sutton, supra note 175, at 212.