Things to Read This Week (5/18/26)
Form, Function, and the Fourth Amendment
Private Rights of Action for Election Litigation in the Federal Courts, by Derek Muller. A great review of important nuts and bolts — my one quibble is that I am a little more inclined to predict/say that there is a Section 1983 cause of action to enforce Section 2 of the VRA.
A Functional Theory of State Action, by Garrett West. “The state-action doctrine is a functional tool to manage the interaction between constitutional and subconstitutional law, … which suggests that constitutional interpretation must integrate theories about the other legal regimes that it sometimes preserves and sometimes displaces.” Very intriguing, even to a formalist.
Judicial Appointments Before Vacancies, by Vasan Kesavan. Speaking of formalism! A defense of nominating and confirming candidates to not-yet-existing vacancies, so long as they are not commissioned. The click-bait title would have been “Is Justice Jackson constitutional?”
Writing for the Holmes Devise, by Robert Post — Post explains and defends his choices in writing the Taft volumes for the Oliver Wendells Holmes Devise History of the Supreme Court (against this critique/self-explanation by Mark Tushnet)
Popular Conceptions of Fourth Amendment Curtilage, by Orin Kerr and Matthew Kugler. “This Article presents the results of three empirical studies, involving 600 participants each, in which members of the public were asked what places count as curtilage and what visits to homes are covered by implied license. . . . We found that the courts have curtilage wrong but implied license right.” I am not sure Fourth Amendment doctrine should depend on surveys, but I am always happy to see the open fields doctrine questioned. Anyway, a great collaboration.
Speaking of Fourth Amendment revisionism, let me also flag the IJ cert petition and Sacharoff amicus brief in Mendenhall v. Denver, which asks the Supreme Court to revive the original meaning of the oath-or-affirmation clause (“no Warrants shall issue, but upon probable cause, supported by Oath or affirmation”).