Issue 5

The Association Game: Applying Noscitur a Sociis and Ejusdem Generis

The Supreme Court has applied noscitur a sociis, often called the associated words canon, in many notable decisions—including the recent Fischer v. United States. This canon has a longstanding history in American jurisprudence, but interpreters face challenges in finding a common theme among words or phrases and supporting it with surrounding context. And some scholars argue judges can use noscitur to bring in external policy preferences and ideological beliefs. This Note proposes several steps to guide the use of noscitur and, by extension, its cousin ejusdem generis, including the clear identification of an association and multiple common themes and principles for transparent contextual analysis. These steps can shield judges from the appearance of guesswork or ideologically influenced decisions and encourage more accurate results by providing a clear roadmap of these canons’ proper application. They may also bring interpreters of all methodologies closer to their interpretive goals.

Introduction

What do the words “bud,” “mate,” “pal,” and “partner” have in common? According to the New York Times Connections puzzle on August 15, 2024, the answer is . . . nothing.1 1.Wyna Liu, Connections No. 431, N.Y. Times (Aug. 15, 2024), https://www.nytimes.com/‌games/connections/2024-08-15.Show More Connections, a fairly recent addition to the Times’s growing portfolio of games, asks readers to sort sixteen different words or phrases into four categories of four.2 2.SeeJoyann Jeffrey,Connections Is the NYT’s New Wordle Alternative. Here’s How to Play, Today (Aug. 29, 2023, 10:30 AM), https://www.today.com/popculture/connections-nyt-puzzle-how-to-play-rcna102300. The New York Times crossword has entertained readers since the early 1940s. David W. Dunlap, Birth of the Crossword, N.Y. Times (Dec. 17, 2022), https:/‌/www.nytimes.com/2022/12/17/insider/first-crossword.html. In recent years, the Times has added several different puzzles to go along with the crossword, including Connections. N.Y. Times Co., Games, https://www.nytco.com/products/games/ [https://perma.cc/85CZ-75KW] (last visited Mar. 28, 2025).Show More The puzzle relies on tricking readers with a number of different possible categories. For instance, in that August 15 scenario, “PARTNER” and “MATE” actually went with “COMPLEMENT” and “MATCH” under the common theme “OTHER HALF.”3 3.See Liu, supra note 1.Show More “BUD” connected with “NATTY,” “SIERRA,” and “STELLA” under “BEERS, FAMILIARLY.” “PAL” fell into “WORDS AFTER ‘PAY’” with “DIRT,” “CHECK,” and “PHONE.”4 4.Id. The final category was “BREADTH,” featuring “EXTENT,” “RANGE,” “REACH,” and “SCOPE.” Id.Show More

The Connections example shows that identifying a common theme among words can be a difficult process—even an impossible one—without context. Unless you knew the rules of the game, you probably would struggle to arrive at the desired common themes. And you would also find it difficult to explain your thought process to a friend without telling them that you need four categories of four.

Courts face a similar struggle in many cases of legal interpretation. They often must interpret a word or phrase as part of a list or grouping, and sometimes the meaning of that word or phrase is not immediately obvious. That is where the tool of noscitur a sociis comes in. Noscitur a sociis literally translates from Latin to “it is known by its associates.”5 5.Noscitur a sociis, Black’s Law Dictionary (12th ed. 2024). This Note usually refers to the canon simply as noscitur and to its relative ejusdem generis as ejusdem.Show More In essence, associated words or phrases around the target word or phrase can influence its meaning.6 6.Id.Show More

Take the Connections puzzle for a simple example. If you found a list in a sentence that read “BUD, MATE, PAL, or PARTNER,” you would probably assume that “BUD” referred to “buddy.”7 7.See Bud, Merriam-Webster, https://www.merriam-webster.com/dictionary/bud [https://pe‌rma.cc/Q4DQ-CLS5] (last visited Mar. 28, 2025).Show More But if the list instead read “BUD, NATTY, SIERRA, or STELLA,” you would likely think that “BUD” referred to the short name for a Budweiser. In neither instance would you think that “BUD” meant the beginnings of a flower on a plant (an otherwise perfectly acceptable meaning).8 8.Id.Show More Thus, the context of associated words influences the meaning of the target word.

Legal interpreters often face much more difficult instances of association. And unlike the small stakes of winning the Connections game, judges’ decisions can affect people’s lives, freedom, and finances. Those affected by judicial opinions deserve frank, thorough, and well-reasoned decisions. So, if those decisions in part come down to the application of noscitur—to most, an unfamiliar Latin phrase—interpreters ought to explain exactly how they used it and exactly how it informed their conclusions.

In addition, to use noscitur effectively, a court must thoroughly investigate the definitions of key words and conduct enough legwork to arrive at an accurate conclusion. It might be tempting for an interpreter to look at a group of words or phrases and claim, without much explanation, to have found the common theme. The answer is often not so simple. And in some recent instances, courts have failed to explain their application of noscitur with sufficient clarity to prove that their purported common theme is the best interpretation.9 9.See, e.g., infra notes 161–67, 262–68 and accompanying text.Show More

Perhaps this stems from a lack of documentation about noscitur. Existing literature, aside from major casebooks, has not provided much help for interpreters seeking advice on applying the canon.10 10.See, e.g., Caleb Nelson, Statutory Interpretation 117–20 (2d ed. 2024).Show More Apart from the well-known handbook Reading Law by Justice Antonin Scalia and Professor Bryan Garner, no article has yet centered on guidelines for courts using noscitur.11 11.See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). For instance, a search of the HeinOnline Law Journal Library on November 30, 2024, for “noscitur” in the title of pieces revealed only two articles, neither of which took this tack. See generally David A. Schlesinger, Chevron Unlatined: The Inapplicability of the Canon Noscitur a Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Env’t L.J. 638 (1996) (discussing why noscitur should not be used under prong one of the Chevron doctrine); Keegan P. Dennis, Noscitur a Sociis: We Will Never Be the Same, 47 S. Ill. U. L.J. 485 (2023) (reflecting on attending law school during the COVID-19 pandemic).Show More Even Reading Law spends a mere four pages on noscitur as compared to fifteen on a subset of the canon, ejusdem generis.12 12.Scalia & Garner, supra note 11, at 195–98, 199–213.Show More So the general principles underlying noscitur have not received the treatment they deserve.

This Note seeks to fill that gap by presenting a model for courts planning to employ the noscitur canon—and by extension its relative ejusdem—in legal interpretation.13 13.I often refer to these canons together as the “association canons.” Since ejusdem also relies on finding a common theme among words or phrases, this Note’s conclusions apply to both canons. But there are several unique aspects of ejusdem that require further discussion throughout.Show More Part I highlights the history and importance of the canon and its use in the notable recent case Fischer v. United States, which concerned a law applied to defendants in the January 6 riot.14 14.144 S. Ct. 2176, 2181–82 (2024).Show More Part II dives into concerns with noscitur’s application. Several notable scholars have argued that it may open the door to the influence of policy preferences or ideology.15 15.See infra notes 68–79 and accompanying text.Show More And the principle behind noscitur naturally implies several difficulties: the presence of multiple potential common traits, an undefined trigger, and a possible deviation from dictionary meaning. Part III then answers these concerns, building a model for applying noscitur. This model strongly encourages courts to explain the canon’s use in detail, including its relationship with the ordinary meaning of each word or phrase involved. It urges interpreters to be thorough, since a more detailed explanation wards off possible accusations of ideological influence. Part IV then revisits Fischer with this model in mind, examining the majority and dissenting opinions and their relationship with the model. It concludes that Fischer did not apply the association canons in the traditional way, and that the Court missed an opportunity to do so.

  1.  Wyna Liu, Connections No. 431, N.Y. Times (Aug. 15, 2024), https://www.nytimes.com/‌games/connections/2024-08-15. ↑
  2.  See Joyann Jeffrey, Connections Is the NYT’s New Wordle Alternative. Here’s How to Play, Today (Aug. 29, 2023, 10:30 AM), https://www.today.com/popculture/connections-nyt-puzzle-how-to-play-rcna102300. The New York Times crossword has entertained readers since the early 1940s. David W. Dunlap, Birth of the Crossword,
    N.Y.

    Times (Dec. 17, 2022), https:/‌/www.nytimes.com/2022/12/17/insider/first-crossword.html. In recent years, the Times has added several different puzzles to go along with the crossword, including Connections.

    N.Y.

    Times Co

    .,

    Games, https://www.nytco.com/products/games/ [https://perma.cc/85CZ-75KW] (last visited Mar. 28, 2025). ↑

  3.  See Liu, supra note 1. ↑
  4.  Id. The final category was “BREADTH,” featuring “EXTENT,” “RANGE,” “REACH,” and “SCOPE.” Id. ↑
  5.  Noscitur a sociis, Black’s Law Dictionary

    (12th ed. 2024). This Note usually refers to the canon simply as noscitur and to its relative ejusdem generis as ejusdem. ↑

  6.  Id. ↑
  7.  See Bud, Merriam-Webster, https://www.merriam-webster.com/dictionary/bud [https://pe‌rma.cc/Q4DQ-CLS5] (last visited Mar. 28, 2025). ↑
  8.  Id. ↑
  9.  See, e.g., infra notes 161–67, 262–68 and accompanying text. ↑
  10.  See, e.g., Caleb Nelson, Statutory Interpretation 117–20 (2d ed. 2024). ↑
  11.  See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). For instance, a search of the HeinOnline Law Journal Library on November 30, 2024, for “noscitur” in the title of pieces revealed only two articles, neither of which took this tack. See generally David A. Schlesinger, Chevron Unlatined: The Inapplicability of the Canon Noscitur a Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Env’t L.J
    .

    638 (1996) (discussing why noscitur should not be used under prong one of the Chevron doctrine); Keegan P. Dennis, Noscitur a Sociis: We Will Never Be the Same, 47 S. Ill. U. L.J

    .

    485 (2023) (reflecting on attending law school during the COVID-19 pandemic). ↑

  12.  Scalia & Garner, supra note 11, at 195–98, 199–213. ↑
  13.  I often refer to these canons together as the “association canons.” Since ejusdem also relies on finding a common theme among words or phrases, this Note’s conclusions apply to both canons. But there are several unique aspects of ejusdem that require further discussion throughout. ↑
  14.  144 S. Ct. 2176, 2181–82 (2024). ↑

  15.  See infra notes 68–79 and accompanying text. ↑

The “New” Drug War

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year. The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black. Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.

The public rhetoric concerning drug use has notably changed in recent years. Many policymakers have replaced the punitive, law-and-order narratives of the Old Drug War with progressive, public-health-oriented language, which suggests that the Old Drug War has ended. We, however, caution against such a conclusion. This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public-health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.

Our assessment of these policies demonstrates that the War on Drugs is not over. It has merely been retooled, recalibrated, and reframed. The “New” Drug War may be concealed with public-health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use.

Introduction

Since the 1800s, American policymakers have waged a racist,1 1.andré douglas pond cummings & Steven A. Ramirez, Roadmap for Anti-Racism: First Unwind the War on Drugs Now, 96 Tul. L. Rev. 469, 469–70 (2022) (“The War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans.” (footnotes omitted)); Paul Butler, Chokehold: Policing Black Men 122 (2017) (noting “that ‘the war on drugs’ has been selectively waged against African Americans. . . . For drug crimes, African Americans are about 13 percent of people who do the crime, but about 60 percent of people who do the time.”).Show More costly,2 2.Juhohn Lee, America Has Spent Over a Trillion Dollars Fighting the War on Drugs. 50 Years Later, Drug Use in the U.S. Is Climbing Again, CNBC (June 17, 2021, 1:15 PM), https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-d‌rugs.html [https://perma.cc/9BAL-Y45A].Show More and punitive3 3.Nkechi Taifa, Race, Mass Incarceration, and the Disastrous War on Drugs, Brennan Ctr. for Just. (May 10, 2021), https://www.brennancenter.org/our-work/analysis-opinion/race-mas‌s-incarceration-and-disastrous-war-drugs [https://perma.cc/54XD-6FGH] (explaining how increasingly punitive drug “laws flooded the federal system with people convicted of low-level and nonviolent drug offenses”); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 6–11 (rev. ed. 2020) (detailing how the War on Drugs led to mass incarceration).Show More drug war that characterizes some drug use as morally reprehensible behavior and those who engage in it as deviant criminals.4 4.Taleed El-Sabawi, Defining the Opioid Epidemic: Congress, Pressure Groups, and Problem Definition, 48 U. Mem. L. Rev. 1357, 1390–91 (2018) [hereinafter El-Sabawi, Defining the Opioid Epidemic].Show More The War on Drugs5 5.Michael Tonry, Race and the War on Drugs, 1994 U. Chi. Legal F. 25, 25‒26 (1994) (defining the War on Drugs as an initiative reinforced by the Reagan and Bush Administrations to reduce drug trade and use by means of education and treatment components with much emphasis on law enforcement).Show More myopically focuses on controlling the supply of drugs deemed dangerous and addictive through prohibition and deterring their sale and possession through arrest and incarceration.6 6.Taleed El-Sabawi & Jennifer Oliva, The Influence of White Exceptionalism on Drug War Discourse, 94 Temp. L. Rev. 649, 649 (2022); see David T. Courtwright, A Century of American Narcotic Policy, in 2 Treating Drug Problems 1, 42 (Dean R. Gerstein & Henrick J. Harwood eds., 1992) (“The sense that illicit drug trafficking and use were out of control led to the present war on drugs.”); Mona Lynch, Theorizing the Role of the ‘War on Drugs’ in US Punishment, 16 Theoretical Criminology 175, 178–79 (2012) (describing specific legislation that criminally punishes both possession and sale of drugs based on “their combined medical value, harmfulness to health, and addictive properties”).Show More American government officials’ simplistic justifications for centering drug policy around supply control include their commitment to the notion that people only use drugs because they are available and, once they are no longer available, people will neither initiate nor continue drug use.7 7.Nat’l Rsch. Council, Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us 139 (Charles F. Manski, John V. Pepper & Carol V. Petrie eds., 2001).Show More

Upon superficial examination, limiting access to potentially dangerous drugs sounds like a promising approach to address drug misuse and poisoning problems. A litany of actual evidence, however, suggests that supply control measures steeped in criminal legal theories of deterrence are ineffective at decreasing overdoses and substance use disorders.8 8.See, e.g., Ojmarrh Mitchell, Ineffectiveness, Financial Waste, and Unfairness: The Legacy of the War on Drugs, 32 J. Crime & Just. 1, 7–10 (2009); Evan Wood et al., Impact of Supply-Side Policies for Control of Illicit Drugs in the Face of the AIDS and Overdose Epidemics: Investigation of a Massive Heroin Seizure, 168 Canadian Med. Ass’n J. 165, 168 (2003).Show More This is because those tactics fail to address any of the underlying causes of drug demand, facilitate an unpredictable and ever more dangerous drug supply, and often result in the substitution of one drug for another, more potent drug.9 9.Leo Beletsky & Corey S. Davis, Today’s Fentanyl Crisis: Prohibition’s Iron Law, Revisited, 46 Int’l J. Drug Pol’y 156, 156–58 (2017); see also Johanna Catherine Maclean, Justine Mallatt, Christopher J. Ruhm & Kosali Simon, Economic Studies on the Opioid Crisis: A Review 1, 15, 19 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28067, 2021), https://w‌ww.nber.org/system/files/working_papers/w28067/w28067.pdf [https://perma.cc/FRN9-D7‌WB] (explaining that opioid “overdose deaths rose 9.1 percent from March 2019 to March 2020” despite “policy efforts to address the crisis,” certain prescription drug monitoring programs “lead[] to increased heroin-related crime,” and that other programs addressing OxyContin misuse “spurred development of illicit drug markets”); Meghan Peterson et al., “One Guy Goes to Jail, Two People Are Ready to Take His Spot”: Perspectives on Drug-Induced Homicide Laws Among Incarcerated Individuals, 70 Int’l J. Drug Pol’y 47, 52 (2019) (concluding that drug policies were “not . . . effective in mitigating overdose risk and could induce harm” instead).Show More

Interdiction efforts alone have cost American taxpayers more than a trillion dollars over the last several decades.10 10.Christopher J. Coyne & Abigail R. Hall, Four Decades and Counting: The Continued Failure of the War on Drugs, 811 Cato Inst. Pol’y Analysis, Apr. 2017, at 1, 19, https://www.ca‌to.org/sites/cato.org/files/pubs/pdf/pa-811-updated.pdf [https://perma.cc/LA3Z-VSUU].Show More Federal, state, and local governments spend an estimated 47.9 billion dollars annually on drug enforcement.11 11.Jeffery Miron, The Budgetary Effects of Ending Drug Prohibition, 83 Cato Inst. Tax & Budget Bull., July 23, 2018, https://www.cato.org/tax-budget-bulletin/budgetary-effects-endi‌ng-drug-prohibition [https://perma.cc/WN7F-PRPQ].Show More Despite the substantial funding dedicated to the War on Drugs, American overdose deaths have reached historic levels. According to the Centers for Disease Control and Prevention, the United States suffered a record 107,941 overdose deaths—the highest number of such fatalities ever cataloged in a single calendar year—in 2022.12 12.Merianne R. Spencer, Matthew F. Garnett & Arialdi M. Miniño, Drug Overdose Deaths in the United States, 2002–2022, 491 Nat’l Ctr. Health Stats. Data Brief 1, 1 (Mar. 2024), https://www.cdc.gov/nchs/data/databriefs/db491.pdf [https://perma.cc/5Q7J-4BBR]; Deidre McPhillips, US Drug Overdose Deaths, Fueled by Synthetic Opioids, Hit a New High in 2022, CNN (May 18, 2023, 11:27 AM), https://www.cnn.com/2023/05/18/health/drug-overdose-de‌aths-2022 [https://perma.cc/34SG-S3S7].Show More

The War on Drugs is not only costly. It has failed to mitigate both the escalating drug overdose deaths and the myriad poor health outcomes associated with chaotic drug use.13 13.Sessi Kuwabara Blanchard, The Beginner’s Guide to Harm Reduction, Healthline (Aug. 30, 2021), https://www.healthline.com/health/substance-use/harm-reduction [https://perma.‌cc/KEH6-LRH8] (explaining that substance use is experienced on a spectrum that varies from managed to chaotic use and defining chaotic use as “consumption [that] is no longer bound by self-regulation” where “the negative effects on [an individual’s] life outweigh the original benefits . . . from consuming drugs”).Show More The War on Drugs is also racist.14 14.See, e.g., John Hudak, Biden Should End America’s Longest War: The War on Drugs, Brookings Inst. (Sept. 24, 2021), https://www.brookings.edu/articles/biden-should-end-ame‌ricas-longest-war-the-war-on-drugs/ [https://perma.cc/GCK7-JEAW] (“Despite its dramatic policy failures, the War on Drugs has been wildly successful in one specific area: institutionalizing racism. The drug war was built on a foundation of racism and xenophobia.”).Show More In 2016, one of President Nixon’s top aides admitted that the War on Drugs was motived by Nixon’s desire to subordinate and disenfranchise Black persons and the antiwar left, whom Nixon identified as political enemies.15 15.Dan Baum, Legalize It All: How to Win the War on Drugs, Harper’s Mag. (Apr. 2016), https://harpers.org/archive/2016/04/legalize-it-all/ [https://perma.cc/W73S-PTNX]. Moreover, the harshness of the criminal penalties associated with a drug’s possession have been driven not by the “dangerousness” of the drug so much as the racial characteristics associated with the people who use that substance. Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the “War on Drugs” Was a “War on Blacks,” 6 J. Gender, Race & Just. 381, 396–98 (2002) (explaining that the dramatic federal sentencing disparity between crack and powder cocaine was unjustified from a physiological perspective because each is simply a different form of the same drug and that, instead, the dramatically more harsh criminal penalties that attended to crack cocaine were based on its use association with Black people (and, concomitantly, that the relatively less harsh criminal penalties that attended to powder cocaine were based on its use association with white people)); Brittany Arsiniega, Teresa Cosby, Spencer Richardson & Kylie Berube, Race and Prohibition Movements, 11 Tenn. J. Race, Gender & Soc. Just. 16, 19 (2021) (“Those drugs associated with minorities have been viewed by governmental majorities (and the public at large) as more harmful or dangerous than those consumed by white people and criminalized accordingly. Examples include crack cocaine versus powder cocaine and consumption of opium by smoking (associated with Chinese immigrants) versus oral consumption (associated with white people).” (footnotes omitted)).Show More The War on Drugs is, and always has been, fueled by stereotypical myths, racist beliefs, and a desire for political and societal control of racial minorities and others opposed to failed law and order-driven drug policies.16 16.See, e.g., Helena Hansen, Jules Netherland & David Herzberg, Whiteout: How Racial Capitalism Changed the Color of Opioids in America 36, 59 (2023) [hereinafter Hansen et al., Whiteout] (explaining that “[i]nherent in the effort of . . . policy makers . . . to distinguish licit from illicit drugs is an unspoken racial symbolism of white biology and Black crime” and “[f]or the last fifty years, . . . policy makers have invested heavily in the association between Black and Brown communities and illicit drug use and have used the threat of drugs to ramp up fears about Black and Brown people and to craft increasingly punitive policies that have been effective tools of racial targeting and control”).Show More

Evidenced by the framing of the current overdose crisis as a public health issue rather than a criminal legal problem, some argue that the War on Drugs is on the wane.17 17.Brian Mann, After 50 Years of the War on Drugs, ‘What Good Is It Doing for Us?’, NPR (June 17, 2021, 5:00 AM), https://www.npr.org/2021/06/17/1006495476/after-50-years-of-th‌e-war-on-drugs-what-good-is-it-doing-for-us [https://perma.cc/79UT-CQ2A] (contending that, in response to the current overdose crisis, “some of the most severe policies implemented during the drug war are being scaled back or scrapped altogether” “[i]n many parts of the U.S.,” while admitting that “much of the drug war’s architecture remains intact”).Show More There is no doubt that the rhetoric that drives the drug war has changed in recent years as policymakers have adopted “health-oriented” language to describe what has been popularly characterized as the “opioid overdose crisis.”18 18.Taleed El-Sabawi, The Role of Pressure Groups and Problem Definition in Crafting Legislative Solutions to the Opioid Crisis, 11 Ne. U. L. Rev. 372, 380, 395 (2019) (finding that a health-oriented approach was used by pressure groups during congressional hearings on the opioid crisis from 2014–2016); see also Max Weiss & Michael Zoorob, Political Frames of Public Health Crises: Discussing the Opioid Epidemic in the US Congress, 281 Soc. Sci. & Med., 2021, at 1, 4–7 (describing the steady rise of overdoses as an “opioid-epidemic” and the responses from the U.S. Congress).Show More A common refrain from both policymakers and law enforcement has been: “We cannot arrest our way out of this crisis.”19 19.See, e.g., Nabarun Dasgupta, We Can’t Arrest Our Way Out of Overdose: The Drug Bust Paradox, 113 Am. J. Pub. Health 708, 708 (2023) (explaining that “[i]n speaking with police about preventing overdose, the officers’ common refrain is ‘We aren’t going to arrest our way out of this’”); Press Release, Dick Durbin, Sen., U.S. Senate, Durbin, Duckworth Announce $1.2 Million for Kane County Diversion Program (Dec. 22, 2021), https://www.durbin.sen‌ate.gov/newsroom/press-releases/durbin-duckworth-announce-12-million-for-kane-county-d‌iversion-program [https://perma.cc/ULU7-2EG5] (stating “we can’t arrest our way out of” the overdose crisis); Andrea Cipriano, Rural Sheriffs: ‘We Can’t Arrest Our Way Out of the Opioid Crisis,’ Crime Rep. (Jan. 20, 2021), https://thecrimereport.org/2021/01/20/rural-sheri‌ffs-we-cant-arrest-our-way-out-of-the-opioid-crisis/ [https://perma.cc/NXV9-U5Y3].Show More This change in framing is due, at least in part, to the rampant whitewashing of prescription opioid misuse.20 20.See generally Julie Netherland & Helena B. Hansen, The War on Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 Cult. Med. & Psych. 664 (2016) (maintaining that when people who use drugs are depicted as white, the policy proposals presented are more likely to be public-health-centered than punitive).Show More Moreover, given that Congress has enacted at least two significant pieces of legislation since 2016 to address the crisis that include provisions that are predominantly health-centric,21 21.See generally Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198, 130 Stat. 695 (prescribing training for first responders, additional addiction treatment for veterans and families, expanding the education and prevention policies, and other methods to fight the opioid crisis); Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, Pub. L. No. 115-271, 132 Stat. 3894 (2018) (expanding Medicaid and Medicare provisions “to address the opioid crisis”).Show More perhaps the dominant and most visible political response to the “opioid crisis” was a “[w]ar on [d]rugs [t]hat [w]asn’t.”22 22.Julie Netherland & Helena Hansen, White Opioids: Pharmaceutical Race and the War on Drugs That Wasn’t, 12 Biosocieties 217, 217 (2017).Show More

We nonetheless caution against any conclusion that the War on Drugs has ended. It has not. It has merely been retooled, recalibrated, and reframed by health-centric rhetoric. New policy proposals aimed at addressing the current overdose crisis may appear more public-health-oriented, and we concede that some are,23 23.For example, in 2021, for the first time in history, former Acting Director of the Office of National Drug Control Policy Regina LaBelle included harm reduction (a public health approach to addressing chaotic drug use defined by meeting people where they are and striving to reduce the health harms of drug use) as one of the executive branch’s strategic priorities to address overdose deaths. Press Release, Regina LaBelle, Acting Director, White House Office of Nat’l Drug Control Pol’y, Statement from Acting Director Regina LaBelle on Today’s CDC Overdose Death Data (Oct. 13, 2021), https://www.whitehouse.gov/ondcp/briefing-room/20‌21/10/13/statement-from-acting-director-regina-labelle-on-todays-cdc-overdose-death-data-4/ [https://perma.cc/83DB-URSX].Show More but an insidious re-entrenchment of the punitive approach to drug use walks in lockstep with those highly publicized public health measures.

Part I of this Article provides an overview of the key features of the Old Drug War with an emphasis on the racism endemic to its purposes. Part II enumerates the extravagant failures of the punitive, supply-side-centric Old Drug War, explaining why its tactics ensure an increasingly dangerous and deadly American drug supply. Part III of this Article deploys three categories of recent laws and policies to demonstrate that the United States persists in waging a punitive and predominantly supply-side War on Drugs cloaked in health-oriented rhetoric.

Part III proceeds in three Sections. Section III.A gives an overview of state laws that provide law enforcement with new data and evidence for criminal prosecution through enhanced controlled substance surveillance. While policymakers have couched such surveillance as an effort to improve health outcomes, it has motivated a marked decrease in the prescribing of opioid analgesics and, as a result, driven many patients in legitimate medical need of such prescription drugs to the illicit (and more dangerous) market. Increased surveillance has been accompanied by the highly publicized prosecution of prescribers, a chilling effect on providers, and the neglect and abandonment of patients in chronic and intractable pain. Such patients are frequently labeled as drug-seekers and deviants unworthy of treatment in the American health care system. We further detail how the algorithms purportedly used to quantify patient drug use risks are steeped with racial and gender prejudice and discriminate against individuals with disabilities.

Section III.B delineates and analyzes certain criminal and civil punishment enhancements of the New Drug War. It explains that several states have enacted new criminal laws that make it easier to charge persons with drug-induced homicide (“DIH”) for overdose deaths and posits that the aggressive enforcement of such laws may lead to an increase in drug-related fatalities and disparately impact individuals minoritized as Black. This Section also points to the federal government’s recent use of fentanyl-related product scheduling to enhance the criminal penalties for drug use and distribution. Section III.B concludes by elaborating on the significant civil collateral consequences experienced by individuals who use drugs due to punitive child welfare and drug testing laws and policies.

Section III.C explains how New Drug War policies continue to create obstacles to evidence-based treatment and harm reduction resources for individuals who use drugs. This Section explains that policymakers remain resistant to reducing the numerous and burdensome federal laws and policies that govern access to opioid use disorder (“OUD”) medications—the gold-standard treatment for OUD—and contends that those policies exacerbate the country’s escalating overdose crisis. This Section further details America’s ongoing battles against and opposition to the operation and funding of two specific evidenced-based harm reduction programs that have been proven effective in reducing overdose fatalities and the health and safety harms associated with drug use: syringe services programs and overdose prevention centers.

The three categories of “New” Drug War laws and policies that are showcased in Part III of this article—enhanced surveillance, enhanced criminalization and civil punishment, and ongoing obstacles to treatment and harm reduction—demonstrate that our “New” Drug War is simply an extension of its predecessor disguised by a public health promotional campaign. Simply stated, the popularity of a predominantly punitive, supply-side, law-enforcement-centric drug policy approach persists despite ample evidence that its core tactics are woefully ineffective. Before diving into a discussion about the very familiar characteristics of our “New” Drug War, we turn first to an overview of the old one, which is provided in the following Part.

  1.  andré douglas pond cummings & Steven A. Ramirez, Roadmap for Anti-Racism: First Unwind the War on Drugs Now, 96 Tul. L. Rev. 469, 469–70 (2022) (“The War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans.” (footnotes omitted)); Paul Butler, Chokehold: Policing Black Men 122 (2017) (noting “that ‘the war on drugs’ has been selectively waged against African Americans. . . . For drug crimes, African Americans are about 13 percent of people who do the crime, but about 60 percent of people who do the time.”). ↑
  2.  Juhohn Lee, America Has Spent Over a Trillion Dollars Fighting the War on Drugs. 50 Years Later, Drug Use in the U.S. Is Climbing Again, CNBC (June 17, 2021, 1:15 PM), https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-d‌rugs.html [https://perma.cc/9BAL-Y45A]. ↑
  3.  Nkechi Taifa, Race, Mass Incarceration, and the Disastrous War on Drugs, Brennan Ctr. for Just. (May 10, 2021), https://www.brennancenter.org/our-work/analysis-opinion/race-mas‌s-incarceration-and-disastrous-war-drugs [https://perma.cc/54XD-6FGH] (explaining how increasingly punitive drug “laws flooded the federal system with people convicted of low-level and nonviolent drug offenses”); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 6–11 (rev. ed. 2020) (detailing how the War on Drugs led to mass incarceration). ↑
  4.  Taleed El-Sabawi, Defining the Opioid Epidemic: Congress, Pressure Groups, and Problem Definition, 48 U. Mem. L. Rev. 1357, 1390–91 (2018) [hereinafter El-Sabawi, Defining the Opioid Epidemic]. ↑
  5.  Michael Tonry, Race and the War on Drugs, 1994 U. Chi. Legal F. 25, 25‒26 (1994) (defining the War on Drugs as an initiative reinforced by the Reagan and Bush Administrations to reduce drug trade and use by means of education and treatment components with much emphasis on law enforcement). ↑
  6.  Taleed El-Sabawi & Jennifer Oliva, The Influence of White Exceptionalism on Drug War Discourse, 94 Temp. L. Rev. 649, 649 (2022); see David T. Courtwright, A Century of American Narcotic Policy, in 2 Treating Drug Problems 1, 42 (Dean R. Gerstein & Henrick J. Harwood eds., 1992) (“The sense that illicit drug trafficking and use were out of control led to the present war on drugs.”); Mona Lynch, Theorizing the Role of the ‘War on Drugs’ in US Punishment, 16 Theoretical Criminology 175, 178–79 (2012) (describing specific legislation that criminally punishes both possession and sale of drugs based on “their combined medical value, harmfulness to health, and addictive properties”). ↑
  7.  Nat’l Rsch. Council, Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us 139 (Charles F. Manski, John V. Pepper & Carol V. Petrie eds., 2001). ↑
  8.  See, e.g., Ojmarrh Mitchell, Ineffectiveness, Financial Waste, and Unfairness: The Legacy of the War on Drugs, 32 J. Crime & Just. 1, 7–10 (2009); Evan Wood et al., Impact of Supply-Side Policies for Control of Illicit Drugs in the Face of the AIDS and Overdose Epidemics: Investigation of a Massive Heroin Seizure, 168 Canadian Med. Ass’n J. 165, 168 (2003). ↑
  9.  Leo Beletsky & Corey S. Davis, Today’s Fentanyl Crisis: Prohibition’s Iron Law, Revisited, 46 Int’l J. Drug Pol’y 156, 156–58 (2017); see also Johanna Catherine Maclean, Justine Mallatt, Christopher J. Ruhm & Kosali Simon, Economic Studies on the Opioid Crisis: A Review 1, 15, 19 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28067, 2021), https://w‌ww.nber.org/system/files/working_papers/w28067/w28067.pdf [https://perma.cc/FRN9-D7‌WB] (explaining that opioid “overdose deaths rose 9.1 percent from March 2019 to March 2020” despite “policy efforts to address the crisis,” certain prescription drug monitoring programs “lead[] to increased heroin-related crime,” and that other programs addressing OxyContin misuse “spurred development of illicit drug markets”); Meghan Peterson et al., “One Guy Goes to Jail, Two People Are Ready to Take His Spot”: Perspectives on Drug-Induced Homicide Laws Among Incarcerated Individuals, 70 Int’l J. Drug Pol’y 47, 52 (2019) (concluding that drug policies were “not . . . effective in mitigating overdose risk and could induce harm” instead). ↑
  10.  Christopher J. Coyne & Abigail R. Hall, Four Decades and Counting: The Continued Failure of the War on Drugs, 811 Cato Inst. Pol’y Analysis, Apr. 2017, at 1, 19, https://www.ca‌to.org/sites/cato.org/files/pubs/pdf/pa-811-updated.pdf [https://perma.cc/LA3Z-VSUU]. ↑
  11.  Jeffery Miron, The Budgetary Effects of Ending Drug Prohibition, 83 Cato Inst. Tax & Budget Bull., July 23, 2018, https://www.cato.org/tax-budget-bulletin/budgetary-effects-endi‌ng-drug-prohibition [https://perma.cc/WN7F-PRPQ]. ↑
  12.  Merianne R. Spencer, Matthew F. Garnett & Arialdi M. Miniño, Drug Overdose Deaths in the United States, 2002–2022, 491 Nat’l Ctr. Health Stats. Data Brief 1, 1 (Mar. 2024), https://www.cdc.gov/nchs/data/databriefs/db491.pdf [https://perma.cc/5Q7J-4BBR]; Deidre McPhillips, US Drug Overdose Deaths, Fueled by Synthetic Opioids, Hit a New High in 2022, CNN (May 18, 2023, 11:27 AM), https://www.cnn.com/2023/05/18/health/drug-overdose-de‌aths-2022 [https://perma.cc/34SG-S3S7]. ↑
  13.  Sessi Kuwabara Blanchard, The Beginner’s Guide to Harm Reduction, Healthline (Aug. 30, 2021), https://www.healthline.com/health/substance-use/harm-reduction [https://perma.‌cc/KEH6-LRH8] (explaining that substance use is experienced on a spectrum that varies from managed to chaotic use and defining chaotic use as “consumption [that] is no longer bound by self-regulation” where “the negative effects on [an individual’s] life outweigh the original benefits . . . from consuming drugs”). ↑
  14.  See, e.g., John Hudak, Biden Should End America’s Longest War: The War on Drugs, Brookings Inst. (Sept. 24, 2021), https://www.brookings.edu/articles/biden-should-end-ame‌ricas-longest-war-the-war-on-drugs/ [https://perma.cc/GCK7-JEAW] (“Despite its dramatic policy failures, the War on Drugs has been wildly successful in one specific area: institutionalizing racism. The drug war was built on a foundation of racism and xenophobia.”). ↑
  15.  Dan Baum, Legalize It All: How to Win the War on Drugs, Harper’s Mag. (Apr. 2016), https://harpers.org/archive/2016/04/legalize-it-all/ [https://perma.cc/W73S-PTNX]. Moreover, the harshness of the criminal penalties associated with a drug’s possession have been driven not by the “dangerousness” of the drug so much as the racial characteristics associated with the people who use that substance. Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the “War on Drugs” Was a “War on Blacks,” 6 J. Gender, Race & Just. 381, 396–98 (2002) (explaining that the dramatic federal sentencing disparity between crack and powder cocaine was unjustified from a physiological perspective because each is simply a different form of the same drug and that, instead, the dramatically more harsh criminal penalties that attended to crack cocaine were based on its use association with Black people (and, concomitantly, that the relatively less harsh criminal penalties that attended to powder cocaine were based on its use association with white people)); Brittany Arsiniega, Teresa Cosby, Spencer Richardson & Kylie Berube, Race and Prohibition Movements, 11 Tenn. J. Race, Gender & Soc. Just. 16, 19 (2021) (“Those drugs associated with minorities have been viewed by governmental majorities (and the public at large) as more harmful or dangerous than those consumed by white people and criminalized accordingly. Examples include crack cocaine versus powder cocaine and consumption of opium by smoking (associated with Chinese immigrants) versus oral consumption (associated with white people).” (footnotes omitted)). ↑
  16.  See, e.g., Helena Hansen, Jules Netherland & David Herzberg, Whiteout: How Racial Capitalism Changed the Color of Opioids in America 36, 59 (2023) [hereinafter Hansen et al., Whiteout] (explaining that “[i]nherent in the effort of . . . policy makers . . . to distinguish licit from illicit drugs is an unspoken racial symbolism of white biology and Black crime” and “[f]or the last fifty years, . . . policy makers have invested heavily in the association between Black and Brown communities and illicit drug use and have used the threat of drugs to ramp up fears about Black and Brown people and to craft increasingly punitive policies that have been effective tools of racial targeting and control”). ↑
  17.  Brian Mann, After 50 Years of the War on Drugs, ‘What Good Is It Doing for Us?’, NPR (June 17, 2021, 5:00 AM), https://www.npr.org/2021/06/17/1006495476/after-50-years-of-th‌e-war-on-drugs-what-good-is-it-doing-for-us [https://perma.cc/79UT-CQ2A] (contending that, in response to the current overdose crisis, “some of the most severe policies implemented during the drug war are being scaled back or scrapped altogether” “[i]n many parts of the U.S.,” while admitting that “much of the drug war’s architecture remains intact”). ↑
  18.  Taleed El-Sabawi, The Role of Pressure Groups and Problem Definition in Crafting Legislative Solutions to the Opioid Crisis, 11 Ne. U. L. Rev. 372, 380, 395 (2019) (finding that a health-oriented approach was used by pressure groups during congressional hearings on the opioid crisis from 2014–2016); see also Max Weiss & Michael Zoorob, Political Frames of Public Health Crises: Discussing the Opioid Epidemic in the US Congress, 281 Soc. Sci. & Med., 2021, at 1, 4–7 (describing the steady rise of overdoses as an “opioid-epidemic” and the responses from the U.S. Congress). ↑
  19.  See, e.g., Nabarun Dasgupta, We Can’t Arrest Our Way Out of Overdose: The Drug Bust Paradox, 113 Am. J. Pub. Health 708, 708 (2023) (explaining that “[i]n speaking with police about preventing overdose, the officers’ common refrain is ‘We aren’t going to arrest our way out of this’”); Press Release, Dick Durbin, Sen., U.S. Senate, Durbin, Duckworth Announce $1.2 Million for Kane County Diversion Program (Dec. 22, 2021), https://www.durbin.sen‌ate.gov/newsroom/press-releases/durbin-duckworth-announce-12-million-for-kane-county-d‌iversion-program [https://perma.cc/ULU7-2EG5] (stating “we can’t arrest our way out of” the overdose crisis); Andrea Cipriano, Rural Sheriffs: ‘We Can’t Arrest Our Way Out of the Opioid Crisis,’ Crime Rep. (Jan. 20, 2021), https://thecrimereport.org/2021/01/20/rural-sheri‌ffs-we-cant-arrest-our-way-out-of-the-opioid-crisis/ [https://perma.cc/NXV9-U5Y3]. ↑
  20.  See generally Julie Netherland & Helena B. Hansen, The War on Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 Cult. Med. & Psych. 664 (2016) (maintaining that when people who use drugs are depicted as white, the policy proposals presented are more likely to be public-health-centered than punitive). ↑
  21.  See generally Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198, 130 Stat. 695 (prescribing training for first responders, additional addiction treatment for veterans and families, expanding the education and prevention policies, and other methods to fight the opioid crisis); Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, Pub. L. No. 115-271, 132 Stat. 3894 (2018) (expanding Medicaid and Medicare provisions “to address the opioid crisis”). ↑
  22.  Julie Netherland & Helena Hansen, White Opioids: Pharmaceutical Race and the War on Drugs That Wasn’t, 12 Biosocieties 217, 217 (2017). ↑

  23.  For example, in 2021, for the first time in history, former Acting Director of the Office of National Drug Control Policy Regina LaBelle included harm reduction (a public health approach to addressing chaotic drug use defined by meeting people where they are and striving to reduce the health harms of drug use) as one of the executive branch’s strategic priorities to address overdose deaths. Press Release, Regina LaBelle, Acting Director, White House Office of Nat’l Drug Control Pol’y, Statement from Acting Director Regina LaBelle on Today’s CDC Overdose Death Data (Oct. 13, 2021), https://www.whitehouse.gov/ondcp/briefing-room/20‌21/10/13/statement-from-acting-director-regina-labelle-on-todays-cdc-overdose-death-data-4/ [https://perma.cc/83DB-URSX]. ↑

A Case of Mistaken Authority: Reconciling Illinois v. Rodriguez, Originalism, and the Common Law

In the last few decades, the Supreme Court has largely turned to a history-based, originalist approach to the Fourth Amendment. Many scholars have been quick to laud the change, criticize the methodology, or argue their views of the historical record. But few have taken the time to catalogue what historical sources and evidence the Supreme Court has found persuasive in its originalist cases. This Note does so. It takes the Court’s originalist methodology as a given and recognizes that historical analysis has become a key part of the Court’s Fourth Amendment jurisprudence. So, this Note analyzes various originalist opinions of the Court to compile a set of tools that litigants should be using when arguing Fourth Amendment issues.

This Note then undertakes to apply these tools in an area where the Court has not. In Illinois v. Rodriguez, the Court established its doctrine of apparent-authority consent. But the case was decided under a non-originalist framework. Using the Court’s preferred historical sources, this Note argues that Rodriguez’s approach to apparent-authority consent was unknown to the common law of trespass, searches, and seizures. And if apparent authority would not have excused a trespass at common law, it should not excuse a government search now. Thus, doctrine and methodology conflict regarding apparent-authority consent. In response, this Note advances a few possible ways to harmonize that inconsistency.

Introduction

In its recent Fourth Amendment cases, the Supreme Court has increasingly turned toward a theory of Fourth Amendment originalism to determine the meaning of the constitutional protection against unreasonable searches and seizures.1 1.David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1743 (2000).Show More Championed by Justice Antonin Scalia,2 2.Id.Show More Fourth Amendment originalism is based upon one fundamental principle: “The Amendment ‘must provide at a minimum the degree of protection it afforded when it was adopted.’”3 3.Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)).Show More

To figure out what that minimum degree of protection is, the Court has frequently undertaken historical surveys of the Founding-era common law of trespass, searches, and seizures.4 4.See, e.g., id. at 2022–24; Wilson v. Arkansas, 514 U.S. 927, 931–36 (1995); Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001).Show More Of course, the Court has recognized that common law rules are not always clear.5 5.Lange, 141 S. Ct. at 2022.Show More However, in the cases where the Court has found that the common law definitively declared that a certain type of search or seizure was or was not reasonable, that determination has been all but dispositive.6 6.See Atwater, 532 U.S. at 345 n.14.Show More In those cases, litigants can win game, set, and match by convincing the Court of their understanding of the historical legal record.

While Fourth Amendment originalism had a distinguished pedigree in the Court’s early search and seizure jurisprudence, it was largely discounted during the Warren and Burger Courts.7 7.Sklansky, supra note 1, at 1740–41.Show More As such, many cases decided during the mid- to late-twentieth century were litigated on a jurisprudential rubric that differs substantially from much of the Court’s current approach to deciding Fourth Amendment questions.

This leads to a few natural questions. What tools should litigants use to argue Fourth Amendment search and seizure cases under the now-ascendant originalist framework? And how do many of the Court’s older precedents stack up in light of this revived history-based approach? Does the Founding-era common law support those decisions? Further, how should people react when it seems that current cases do not ensure that the Fourth Amendment provides “the degree of protection it afforded when it was adopted”?8 8.Lange, 141 S. Ct. at 2022 (quoting Jones, 565 U.S. at 411).Show More

This Note undertakes to answer these questions. While much recent originalist scholarship is quick to provide historical evidence it argues the Court should find persuasive, this Note inverts the analysis, first cataloguing the various types of sources the Court has regularly used to determine the content of the common law and then presenting them to litigants as primary tools to be used in making history-based legal arguments. Then, as a case study, this Note takes those tools and applies them to Illinois v. Rodriguez,9 9.497 U.S. 177 (1990).Show More a case decided just before the Court began to shift its focus toward a history-based approach. In Rodriguez, which established the Court’s current doctrine regarding apparent-authority-consent searches, the Court held that police may constitutionally search a person’s home pursuant to consent obtained from someone who the officers reasonably, but mistakenly, believed had the requisite authority to consent.10 10.Id. at 188–89.Show More However, using a mixture of well-known and rarely or never-before cited historical evidence, including early American and British case law, this Note argues that Rodriguez’s holding does not fit comfortably within the Founding-era common law of searches and seizures. But it proposes a few ways to reach a sort of harmony.

Thus, this Note proceeds in five Parts. Part I introduces the doctrine of consent and apparent authority. Part II examines how the Court has increasingly looked to history and the common law to determine whether a search is reasonable or not under the Fourth Amendment. Part III catalogues the common tools and methods that the Court has used to determine what the content of the Founding-era common law of searches and seizures actually was. Part IV uses those tools to argue that apparent authority would not have excused an officer’s trespass onto someone’s land, making that trespass an unreasonable search at common law. Finally, Part V discusses the possible implications that this research may have for apparent-authority-consent-search doctrine.

  1.  David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1743 (2000). ↑
  2.  Id. ↑
  3.  Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)). ↑
  4.  See, e.g., id. at 2022–24; Wilson v. Arkansas, 514 U.S. 927, 931–36 (1995); Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001). ↑
  5.  Lange, 141 S. Ct. at 2022. ↑
  6.  See Atwater, 532 U.S. at 345 n.14. ↑
  7.  Sklansky, supra note 1, at 1740–41. ↑
  8.  Lange, 141 S. Ct. at 2022 (quoting Jones, 565 U.S. at 411). ↑
  9.  497 U.S. 177 (1990). ↑

  10.  Id. at 188–89. ↑

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