# The Commonplace
> Legal analysis and explainers on constitutional law, courts, public power, commerce, and institutions by Daniel R. Neuhaus.
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## Pages
### About
URL: https://www.thecommonplace.press/about/
Last updated: 2026-05-13T21:59:07.000Z
**The Commonplace** is Daniel R. Neuhaus’s public legal notebook of analysis, explainers, and forward-looking notes on doctrine, institutions, commerce, and judgment.

It is designed to build a record of legal writing over time: clear arguments, careful source work, and practical judgment from public materials.

New writing is published as legal analysis, digestible explainers, and outlook pieces on cases, institutions, doctrine, commercial life, and legal change.

I write from public sources only. All views are my own. Nothing published here reflects the views of any court, judge, employer, client, school, organization, or institution.
### Source Policy
URL: https://www.thecommonplace.press/source-policy/
Last updated: 2026-05-13T21:45:07.000Z
The Commonplace is written from public sources.

I use materials that are publicly available, including judicial opinions, statutes, regulations, agency materials, briefs, public filings, books, articles, lectures, reports, interviews, and other sources that readers can independently evaluate. When a post relies on a specific authority, I try to cite or link to the source so the reader can check the underlying material.

Nothing published here is based on confidential court information, privileged material, nonpublic work product, sealed filings, private communications, or internal institutional information.

The Commonplace is an independent writing archive. All views are my own. Nothing published here reflects the views of any court, judge, employer, client, school, organization, or institution.

Posts are written for analysis and education. They are not legal advice and should not be relied on as legal advice. Readers facing a legal question should consult a qualified lawyer.

I may revise posts to correct errors, improve citations, add later developments, or clarify reasoning. When a correction materially changes a post, I will note the correction where appropriate.

The goal is simple: careful legal writing from public materials, with enough citation discipline that readers can follow the argument for themselves.
## Posts
### The Suppressor Registry After the Tax Went to Zero
URL: https://www.thecommonplace.press/suppressor-registry-after-tax-went-to-zero/
Last updated: 2026-09-04T13:00:30.000Z
*Judge Hendrix held that federal suppressor provisions surviving Congress’s elimination of the making and transfer taxes exceeded Congress’s enumerated powers. Any appellate defense of those provisions must explain why suppressors may bear federal approval, registration, and possession rules beyond those governing ordinary firearms.*

Effective January 1, 2026, Congress set the National Firearms Act’s making and transfer taxes at zero for suppressors, short-barreled rifles, short-barreled shotguns, and firearms classified as “any other weapon,” and retained $200 rates for machineguns and destructive devices.[\[1\]](#fn1)

The amendment left advance approval, identifying disclosures, registration, and criminal penalties of up to ten years in place for the zero-tax categories, and the Bureau of Alcohol, Tobacco, Firearms and Explosives stated that those requirements remained “in full force and effect.”[\[2\]](#fn2)

On August 5, 2026, United States District Judge James Wesley Hendrix held that the challenged provisions exceeded Congress’s enumerated powers after rejecting the Taxing Clause, occupational-tax, Necessary and Proper Clause, and Commerce Clause theories offered by the government. His party-specific injunction took effect on August 13, and the United States’ ordinary sixty-day appeal period runs through October 5, 2026.[\[3\]](#fn3)

Federal law already defines a suppressor as a firearm under the Gun Control Act, which continues to govern licensed dealers’ records, background checks, interstate transfers, and sales to prohibited persons.[\[4\]](#fn4) Congress should therefore subject suppressors to the same federal rules that govern other firearms and eliminate the additional National Firearms Act approval and registry layer.

That policy judgment remains distinct from the facial question because some commercial applications may fall within the commerce power.[\[5\]](#fn5)

## The vanished taxes no longer support the registry

Congress structured the 1934 National Firearms Act around taxation because the federal government possesses enumerated powers and lacks a general police power over local crime. The Act imposed annual occupational taxes on importers, manufacturers, and dealers, added a $200 tax to each covered transfer, and required identifying forms that allowed federal officials to assess and collect those liabilities.[\[6\]](#fn6) In *Sonzinsky v. United States*, the Supreme Court upheld the annual dealer tax despite its deterrent effect and negligible revenue, and expressly reserved the validity of the separate transfer tax and accompanying regulations. The decision therefore sustained an actual annual tax imposed on a dealer who also had to register, leaving the per-transfer regime outside the Court’s holding.[\[7\]](#fn7)

The Supreme Court permits a tax to influence conduct and has upheld a levy that generated negligible revenue, although it has also treated the production of at least some revenue as an essential feature of taxation. Because Sections 5811 and 5821 now impose zero liability on suppressor making and transfer, those provisions supply no revenue-producing end for the retained federal per-item regime.[\[8\]](#fn8) The Necessary and Proper Clause permits Congress to choose means plainly adapted to carrying an enumerated power into execution. When a command directly regulates interstate commerce, the Commerce Clause itself may supply the necessary constitutional authority without requiring a separate Necessary and Proper Clause inquiry. Because a zero-dollar transfer generates no liability, the retained registry must find its constitutional foundation in either the surviving occupational tax or the commerce power.[\[9\]](#fn9)

## The occupational tax supplies an attenuated theory

Importers, manufacturers, and dealers continue to pay an annual occupational tax and register their businesses, which gives the government a possible constitutional foundation for some information-gathering requirements. The government argued that individual applications and registry records can reveal repeated activity consistent with an unregistered business and therefore assist assessment or collection of the surviving tax.[\[10\]](#fn10) *United States v. Doremus* supplies the government’s strongest authority because the Court upheld recordkeeping and sales restrictions as reasonable means of enforcing an occupational tax on narcotics businesses. Section 5848 leaves the theory some room because its use restriction principally protects a natural person in a criminal proceeding concerning a prior or concurrent violation, yet preserves administrative action, civil collection, independently developed evidence, entity records, and prosecutions for false information.[\[11\]](#fn11)

Even so, the occupational-tax theory likely fails because a limited levy on businesses supplies a remote basis for applying the retained federal per-item regime to private persons who owe no occupational tax. Sections 5801 and 5802 already tax and register firearms businesses, whereas the challenged provisions govern each covered item and reach makers, recipients, borrowers, and possessors outside that tax base.[\[10:1\]](#fn10) Hendrix also found the enforcement evidence attenuated, although referral counts alone carry limited weight because deterrence and administrative screening could explain a small number of referrals. Occasional identification of unregistered business activity through the disclosure rules does not establish that the full per-item regime is plainly adapted and proper as a tax-collection measure.[\[10:2\]](#fn10)

## Commerce power narrows the available relief

Hendrix rejected the Commerce Clause theory because the National Firearms Act’s placement, history, and operative design showed a taxing-power enactment, and the challenged provisions lacked a jurisdictional element connecting their applications to interstate commerce.[\[12\]](#fn12) Other provisions expressly address unregistered firearms moving in interstate commerce and firearms imported into the United States in violation of federal law, and Hendrix read Sections 5861(j) and 5861(k) as evidence that Congress omitted a comparable limit from the challenged commands.[\[13\]](#fn13) *Woods v. Cloyd W. Miller Co.* supports the government because an enactment need not recite the constitutional power sustaining it, although legislative history helped the Court identify the war power in that case. A reviewing court may therefore treat the Act’s tax origins and missing jurisdictional elements as evidence of statutory scope and still ask whether a challenged application lies within the objective reach of the commerce power.[\[14\]](#fn14)

Fifth Circuit precedent points in different directions because *Ross* and *Parker* described taxation as the Act’s constitutional foundation. *Ardoin* later adopted an earlier circuit decision stating that the Act may rest on either taxation or interstate commerce, and *Arce*, decided two years after *United States v. Lopez*, characterized that proposition as a holding entitled to precedential force.[\[15\]](#fn15) Hendrix treated the commerce discussion in *Ardoin* and *Arce* as unnecessary to those decisions, relied on *Ross* and *Parker* as earlier controlling cases, and concluded that *Lopez* and *United States v. Morrison* had displaced any contrary rule. If *Arce*’s post-*Lopez* characterization is binding, *Lopez* cannot supply the intervening-authority exception, leaving a reviewing court to ask whether *Morrison* or later Supreme Court authority unequivocally overruled that rule or fundamentally changed the analysis in a way that clearly applies. If *Arce*’s discussion was dictum, the rule of orderliness would not attach, and the earlier-panel tension identified by Hendrix would remain for the reviewing court to resolve.[\[15:1\]](#fn15)

The facial posture may resolve the dispute before a court examines every private application because commercial manufacture, interstate distribution, and dealer sales fall within Congress’s commerce authority under current doctrine. Under the standard Hendrix applied, the plaintiffs must establish that each challenged provision lacks any valid application, and Section 7852(a) directs courts to preserve a provision’s valid applications to other persons and circumstances.[\[16\]](#fn16) A valid commercial application may therefore defeat facial relief as to that provision, leaving purely private conduct for later litigation on a fully developed as-applied record.

The government can invoke *Gonzales v. Raich* by describing the National Firearms Act as a national system governing the making, transfer, registration, and possession of defined firearms. Because federal law defines a transfer to include lending and giving, exempting private loans could fracture the ownership record and allow unregistered commercial dealing to appear as temporary possession.[\[17\]](#fn17) The limiting inquiry asks whether Congress had a rational basis to conclude that exempting the intrastate conduct would undercut effective regulation of the interstate suppressor market and whether each challenged command is an appropriate means of carrying that regulation into execution.[\[17:1\]](#fn17)

The Gun Control Act generally leaves occasional private intrastate transfers between unlicensed residents outside federal preapproval, which shows that Congress can regulate the commercial firearms market without requiring advance permission for every private loan.[\[18\]](#fn18) A stronger as-applied challenge would involve a suppressor made in one State from in-state materials, lawful under state law, never moved through interstate commerce, and later lent and possessed privately without commercial purpose.

## The Gun Control Act would continue to govern suppressors

Removing the challenged National Firearms Act provisions would leave ordinary federal firearms law in place because the Gun Control Act defines a firearm to include a firearm muffler or silencer. Licensed-dealer transactions would remain subject to federal records, background checks, residency rules, and restrictions on sales to prohibited persons, and occasional private transfers would remain governed by the same federal limits that apply to other firearms. States retain general police power to regulate firearms and punish criminal misuse within their authority, subject to the Second and Fourteenth Amendments, and federal regulation must remain tied to an enumerated power.[\[19\]](#fn19)

Restoring a positive making or transfer tax would renew the Taxing Clause argument, although it would also revive a suppressor-specific burden whose operation remains subject to the Second Amendment.[\[20\]](#fn20) A Fifth Circuit panel has held that suppressors are protected “Arms,” and *United States v. Peterson* treats the National Firearms Act’s shall-issue process as presumptively lawful absent abusive ends through exorbitant fees or lengthy processing delays.[\[20:1\]](#fn20)

A reviewing court may agree with Hendrix’s Taxing Clause analysis and still reverse the judgment on the facial Article I claims and vacate the injunction if each challenged provision has a valid commerce-connected application. Congress can act now by placing suppressors within the ordinary federal firearms framework and eliminating a suppressor-specific layer that no longer collects the taxes for which the National Firearms Act was designed.

---

1. [Pub. L. No. 119-21, § 70436, 139 Stat. 72, 247–48 (2025)](https://www.govinfo.gov/content/pkg/PLAW-119publ21/html/PLAW-119publ21.htm?ref=thecommonplace.press); 26 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title26%2FsubtitleE%2Fchapter53&ref=thecommonplace.press) §§ 5811(a)(2), 5821(a)(2). [↩︎](#fnref1)
2. 26 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title26%2FsubtitleE%2Fchapter53&ref=thecommonplace.press) §§ 5812(a)–(b), 5822, 5841(a), (e), 5861(b)–(f), 5871; [Changes to National Firearms Act Tax Remittance Provisions, 91 Fed. Reg. 25,112, 25,112–13 (May 8, 2026)](https://www.govinfo.gov/content/pkg/FR-2026-05-08/html/2026-09155.htm?ref=thecommonplace.press) (to be codified at 27 C.F.R. pt. 479). [↩︎](#fnref2)
3. [Silencer Shop Found. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 6:25-CV-056-H, slip op. at 24–55, 65–66 (N.D. Tex. Aug. 5, 2026), ECF No. 136](https://www.govinfo.gov/content/pkg/USCOURTS-txnd-6%5F25-cv-00056/pdf/USCOURTS-txnd-6%5F25-cv-00056-0.pdf?ref=thecommonplace.press); [Final Judgment at 1–2, Silencer Shop Found. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 6:25-CV-056-H (N.D. Tex. Aug. 5, 2026), ECF No. 137](https://storage.courtlistener.com/recap/gov.uscourts.txnd.406278/gov.uscourts.txnd.406278.137.0.pdf?ref=thecommonplace.press); [Fed. R. App. P. 4(a)(1)(B), 26(a)](https://www.uscourts.gov/forms-rules/current-rules-practice-procedure/federal-rules-appellate-procedure?ref=thecommonplace.press). The injunction protects the plaintiffs and the members, customers, agencies, and political subdivisions specified in the judgment, and the seven-day stay expired at the end of August 12\. Absent a timely tolling motion or an order extending or reopening the appeal period, the sixtieth day falls on Sunday, October 4, making Monday, October 5, the final day under Rule 26(a)(1)(C). [↩︎](#fnref3)
4. 18 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title18%2Fpart1%2Fchapter44&ref=thecommonplace.press) §§ 921(a)(3)(C), 921(a)(25), 922(a)(1)(A), (a)(3), (a)(5), (b)(3), (b)(5), (d), (t). [↩︎](#fnref4)
5. *See* [U.S. Const. art. I, § 8, cl. 3](https://constitution.congress.gov/browse/article-1/section-8/clause-3/?ref=thecommonplace.press); [United States v. Lopez, 514 U.S. 549, 558–59 (1995)](https://www.govinfo.gov/content/pkg/USREPORTS-514/pdf/USREPORTS-514-549.pdf?ref=thecommonplace.press); [Gonzales v. Raich, 545 U.S. 1, 17, 22 (2005)](https://www.govinfo.gov/content/pkg/USREPORTS-545/pdf/USREPORTS-545-1.pdf?ref=thecommonplace.press); [Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024)](https://www.supremecourt.gov/opinions/23pdf/22-277%5Fd18f.pdf?ref=thecommonplace.press); [United States v. Rahimi, 602 U.S. 680, 693 (2024)](https://www.supremecourt.gov/opinions/23pdf/22-915%5F8o6b.pdf?ref=thecommonplace.press); [United States v. Salerno, 481 U.S. 739, 745 (1987)](https://www.govinfo.gov/content/pkg/USREPORTS-481/pdf/USREPORTS-481-739.pdf?ref=thecommonplace.press); [26 U.S.C. § 7852(a)](https://uscode.house.gov/view.xhtml?edition=prelim&f=treesort&jumpTo=true&num=0&req=%28title%3A26+section%3A7852+edition%3Aprelim%29+OR+%28granuleid%3AUSC-prelim-title26-section7852%29&ref=thecommonplace.press). [↩︎](#fnref5)
6. [*National Firearms Act: Hearings on H.R. 9066 Before the H. Comm. on Ways & Means*](https://books.google.com/books?id=DFwWAAAAIAAJ&printsec=frontcover&ref=thecommonplace.press), 73d Cong. 6, 8, 13–14 (1934); [National Firearms Act, ch. 757, §§ 2–4, 48 Stat. 1236, 1237–38 (1934)](https://www.govinfo.gov/content/pkg/STATUTE-48/pdf/STATUTE-48-Pg1236.pdf?ref=thecommonplace.press); [*Silencer Shop Found.*](https://www.govinfo.gov/content/pkg/USCOURTS-txnd-6%5F25-cv-00056/pdf/USCOURTS-txnd-6%5F25-cv-00056-0.pdf?ref=thecommonplace.press), slip op. at 3–7\. [↩︎](#fnref6)
7. [Sonzinsky v. United States, 300 U.S. 506, 511–14 (1937)](https://www.govinfo.gov/content/pkg/USREPORTS-300/pdf/USREPORTS-300-506.pdf?ref=thecommonplace.press). [↩︎](#fnref7)
8. [United States v. Sanchez, 340 U.S. 42, 44 (1950)](https://www.govinfo.gov/content/pkg/USREPORTS-340/pdf/USREPORTS-340-42.pdf?ref=thecommonplace.press); [Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 564 (2012)](https://www.govinfo.gov/content/pkg/USREPORTS-567/pdf/USREPORTS-567-519.pdf?ref=thecommonplace.press); 26 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title26%2FsubtitleE%2Fchapter53&ref=thecommonplace.press) §§ 5811(a)(2), 5821(a)(2). [↩︎](#fnref8)
9. [U.S. Const. art. I, § 8, cls. 3, 18](https://constitution.congress.gov/browse/article-1/section-8/?ref=thecommonplace.press); [United States v. Lopez, 514 U.S. 549, 558–59 (1995)](https://www.govinfo.gov/content/pkg/USREPORTS-514/pdf/USREPORTS-514-549.pdf?ref=thecommonplace.press); [McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)](https://www.govinfo.gov/content/pkg/USREPORTS-17/pdf/USREPORTS-17-316.pdf?ref=thecommonplace.press); [United States v. Comstock, 560 U.S. 126, 133–37 (2010)](https://www.govinfo.gov/content/pkg/USREPORTS-560/pdf/USREPORTS-560-126.pdf?ref=thecommonplace.press); [McNutt v. U.S. Dep’t of Just., 173 F.4th 204, 218–21 (5th Cir. 2026)](https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pdf?ref=thecommonplace.press), *petition for cert. filed*, [No. 26-204 (U.S. Aug. 14, 2026)](https://www.supremecourt.gov/docket/docketfiles/html/public/26-204.html?ref=thecommonplace.press). [↩︎](#fnref9)
10. [*Silencer Shop Found.*](https://www.govinfo.gov/content/pkg/USCOURTS-txnd-6%5F25-cv-00056/pdf/USCOURTS-txnd-6%5F25-cv-00056-0.pdf?ref=thecommonplace.press), slip op. at 29–38; 26 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title26%2FsubtitleE%2Fchapter53&ref=thecommonplace.press) §§ 5801–5802; [26 U.S.C. § 5848(a)–(b)](https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title26-section5848&ref=thecommonplace.press); [United States v. Freed, 401 U.S. 601, 606 (1971)](https://www.govinfo.gov/content/pkg/USREPORTS-401/pdf/USREPORTS-401-601.pdf?ref=thecommonplace.press). [↩︎](#fnref10) [↩︎](#fnref10:1) [↩︎](#fnref10:2)
11. [United States v. Doremus, 249 U.S. 86, 93–95 (1919)](https://www.govinfo.gov/content/pkg/USREPORTS-249/pdf/USREPORTS-249-86.pdf?ref=thecommonplace.press); [26 U.S.C. § 5848(a)–(b)](https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title26-section5848&ref=thecommonplace.press). [↩︎](#fnref11)
12. [*Silencer Shop Found.*](https://www.govinfo.gov/content/pkg/USCOURTS-txnd-6%5F25-cv-00056/pdf/USCOURTS-txnd-6%5F25-cv-00056-0.pdf?ref=thecommonplace.press), slip op. at 38–55; [United States v. Lopez, 514 U.S. 549, 558–68 (1995)](https://www.govinfo.gov/content/pkg/USREPORTS-514/pdf/USREPORTS-514-549.pdf?ref=thecommonplace.press); [United States v. Morrison, 529 U.S. 598, 608–19 (2000)](https://www.govinfo.gov/content/pkg/USREPORTS-529/pdf/USREPORTS-529-598.pdf?ref=thecommonplace.press). [↩︎](#fnref12)
13. 26 [U.S.C. § 5861(j)–(k)](https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title26-section5861&ref=thecommonplace.press); [*Silencer Shop Found.*](https://www.govinfo.gov/content/pkg/USCOURTS-txnd-6%5F25-cv-00056/pdf/USCOURTS-txnd-6%5F25-cv-00056-0.pdf?ref=thecommonplace.press), slip op. at 44, 47–48\. [↩︎](#fnref13)
14. [Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)](https://www.govinfo.gov/content/pkg/USREPORTS-333/pdf/USREPORTS-333-138.pdf?ref=thecommonplace.press); *see* [*Silencer Shop Found.*](https://www.govinfo.gov/content/pkg/USCOURTS-txnd-6%5F25-cv-00056/pdf/USCOURTS-txnd-6%5F25-cv-00056-0.pdf?ref=thecommonplace.press), slip op. at 48–49 (distinguishing *Woods*). [↩︎](#fnref14)
15. United States v. Ross, 458 F.2d 1144, 1145 & n.3 (5th Cir. 1972); United States v. Parker, 960 F.2d 498, 500 (5th Cir. 1992); [United States v. Ardoin, 19 F.3d 177, 179–80 (5th Cir. 1994)](https://www.ca5.uscourts.gov/opinions/pub/93/93-04272.CR0.wpd.pdf?ref=thecommonplace.press); [United States v. Arce, 118 F.3d 335, 342 (5th Cir. 1997)](https://www.ca5.uscourts.gov/opinions/pub/96/96-20983.CR0.wpd.pdf?ref=thecommonplace.press); [*Silencer Shop Found.*](https://www.govinfo.gov/content/pkg/USCOURTS-txnd-6%5F25-cv-00056/pdf/USCOURTS-txnd-6%5F25-cv-00056-0.pdf?ref=thecommonplace.press), slip op. at 49–55; [Texas v. United States, 126 F.4th 392, 406–07 (5th Cir. 2025)](https://www.ca5.uscourts.gov/opinions/pub/23/23-40653-CV0.pdf?ref=thecommonplace.press). [↩︎](#fnref15) [↩︎](#fnref15:1)
16. *See* [Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024)](https://www.supremecourt.gov/opinions/23pdf/22-277%5Fd18f.pdf?ref=thecommonplace.press); [United States v. Rahimi, 602 U.S. 680, 693 (2024)](https://www.supremecourt.gov/opinions/23pdf/22-915%5F8o6b.pdf?ref=thecommonplace.press); [United States v. Salerno, 481 U.S. 739, 745 (1987)](https://www.govinfo.gov/content/pkg/USREPORTS-481/pdf/USREPORTS-481-739.pdf?ref=thecommonplace.press); [United States v. Lopez, 514 U.S. 549, 558–59 (1995)](https://www.govinfo.gov/content/pkg/USREPORTS-514/pdf/USREPORTS-514-549.pdf?ref=thecommonplace.press); [Gonzales v. Raich, 545 U.S. 1, 17, 22 (2005)](https://www.govinfo.gov/content/pkg/USREPORTS-545/pdf/USREPORTS-545-1.pdf?ref=thecommonplace.press); [*Silencer Shop Found.*](https://www.govinfo.gov/content/pkg/USCOURTS-txnd-6%5F25-cv-00056/pdf/USCOURTS-txnd-6%5F25-cv-00056-0.pdf?ref=thecommonplace.press), slip op. at 17–24, 55–56; [26 U.S.C. § 7852(a)](https://uscode.house.gov/view.xhtml?edition=prelim&f=treesort&jumpTo=true&num=0&req=%28title%3A26+section%3A7852+edition%3Aprelim%29+OR+%28granuleid%3AUSC-prelim-title26-section7852%29&ref=thecommonplace.press); [Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328–31 (2006)](https://www.govinfo.gov/app/details/USREPORTS-546/USREPORTS-546-320?ref=thecommonplace.press). [↩︎](#fnref16)
17. [Gonzales v. Raich, 545 U.S. 1, 17–22 (2005)](https://www.govinfo.gov/content/pkg/USREPORTS-545/pdf/USREPORTS-545-1.pdf?ref=thecommonplace.press); *id.* at 33–42 (Scalia, J., concurring in the judgment); 26 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title26%2FsubtitleE%2Fchapter53&ref=thecommonplace.press) §§ 5812(a)–(b), 5822, 5841, 5861; [*id.* § 5845(j)](https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title26-section5845&ref=thecommonplace.press). [↩︎](#fnref17) [↩︎](#fnref17:1)
18. 18 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title18%2Fpart1%2Fchapter44&ref=thecommonplace.press) § 922(a)(1)(A), (a)(3), (a)(5), (t); *see* [Gonzales v. Raich, 545 U.S. 1, 12–15, 18–22 (2005)](https://www.govinfo.gov/content/pkg/USREPORTS-545/pdf/USREPORTS-545-1.pdf?ref=thecommonplace.press); *id.* at 34–42 (Scalia, J., concurring in the judgment); [McNutt v. U.S. Dep’t of Just., 173 F.4th 204, 218 & n.12, 220–21 (5th Cir. 2026)](https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pdf?ref=thecommonplace.press), *petition for cert. filed*, [No. 26-204 (U.S. Aug. 14, 2026)](https://www.supremecourt.gov/docket/docketfiles/html/public/26-204.html?ref=thecommonplace.press). [↩︎](#fnref18)
19. 18 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title18%2Fpart1%2Fchapter44&ref=thecommonplace.press) §§ 921(a)(3)(C), 921(a)(25), 922(a)(1)(A), (a)(3), (a)(5), (b)(3), (b)(5), (d), (t); [United States v. Morrison, 529 U.S. 598, 618 (2000)](https://www.govinfo.gov/content/pkg/USREPORTS-529/pdf/USREPORTS-529-598.pdf?ref=thecommonplace.press); [District of Columbia v. Heller, 554 U.S. 570, 635 (2008)](https://www.govinfo.gov/content/pkg/USREPORTS-554/pdf/USREPORTS-554-570.pdf?ref=thecommonplace.press); [McDonald v. City of Chicago, 561 U.S. 742, 750 (2010)](https://www.govinfo.gov/content/pkg/USREPORTS-561/pdf/USREPORTS-561-742.pdf?ref=thecommonplace.press). [↩︎](#fnref19)
20. 26 [U.S.C.](https://uscode.house.gov/view.xhtml?edition=prelim&path=%2Fprelim%40title26%2FsubtitleE%2Fchapter53&ref=thecommonplace.press) §§ 5811(a), 5821(a); [United States v. Comeaux, 179 F.4th 297, 301–02 (5th Cir. 2026)](https://www.ca5.uscourts.gov/opinions/pub/24/24-30307-CR0.pdf?ref=thecommonplace.press); [United States v. Peterson, 161 F.4th 331, 340–42 (5th Cir. 2025)](https://www.ca5.uscourts.gov/opinions/pub/24/24-30043-CR2.pdf?ref=thecommonplace.press), *cert. denied*, [224 L. Ed. 2d 501 (2026)](https://www.supremecourt.gov/docket/docketfiles/html/public/25-1076.html?ref=thecommonplace.press). A petition for rehearing en banc in *Comeaux* remained pending as of September 3, 2026, and its timely filing canceled the scheduled mandate date. *See* [Docket, United States v. Comeaux, No. 24-30307 (5th Cir.), ECF No. 136 (petition filed July 2, 2026), ECF No. 150 (government response filed July 20, 2026)](https://www.courtlistener.com/docket/68910900/united-states-v-comeaux/?ref=thecommonplace.press); [Fed. R. App. P. 41(b)](https://www.uscourts.gov/forms-rules/current-rules-practice-procedure/federal-rules-appellate-procedure?ref=thecommonplace.press). [↩︎](#fnref20) [↩︎](#fnref20:1)
### Who Controls the Fed?
URL: https://www.thecommonplace.press/who-controls-the-fed/
Last updated: 2026-07-06T13:00:42.000Z
## The Question After *Slaughter* and *Cook*

Article II begins with vesting, and that verb supplies the first rule for every later argument over independence, expertise, banking practice, and congressional design.[\[1\]](#fn1) The Framers placed executive power in one President because divided executive authority conceals fault, weakens responsibility, and leaves the people without an identifiable officer to praise or blame when federal law is executed.[\[2\]](#fn2)

That choice governs the question left by *Slaughter* and *Cook*, because the constitutional issue turns on the officer exercising federal power and the character of the power Congress seeks to protect from presidential control.[\[3\]](#fn3) *Slaughter* treated the independent-agency model as incompatible with Article II when federal officers investigate private parties, issue binding rules, prosecute enforcement actions, adjudicate violations, impose penalties, and sue in the name of the United States.[\[4\]](#fn4)

*Cook* preserved a harder problem by accepting that the Federal Reserve occupies a distinct historical position, while leaving unresolved how far central-banking history can protect the modern Board when it exercises coercive regulatory authority.[\[5\]](#fn5) That exception, therefore, needs sharper boundaries, since early banking practice can justify only the kind of independence that practice involved, and cannot carry every federal command imposed on the Board of Governors.[\[6\]](#fn6)

Treating that history as sufficient would allow Congress to preserve insulated executive power after *Slaughter* by placing it within the one institution the Court hesitates to treat as ordinary administration.[\[7\]](#fn7)

## I The Independent Agency Model Breaks at Execution

For much of the twentieth century, the Federal Trade Commission supplied the standard defense of independent administration, with multimember structure, staggered terms, partisan balance, and statutory protection against removal except for inefficiency, neglect of duty, or malfeasance in office.[\[8\]](#fn8) *Humphrey’s Executor* upheld that arrangement by describing the Commission’s duties as quasi-legislative and quasi-judicial, which allowed the Court to avoid treating its commissioners as ordinary officers executing federal law for the President.[\[9\]](#fn9)

*Slaughter* rejected that description because the modern Federal Trade Commission promulgates rules with legal force, investigates suspected violations, prosecutes enforcement proceedings, conducts internal adjudications, and files civil suits to secure relief under federal law.[\[10\]](#fn10) Those acts belong to execution because they apply federal commands to private conduct through governmental force, even when Congress channels that force through procedures resembling legislation or adjudication.[\[11\]](#fn11)

The Decision of 1789 gives that structure early practical meaning, because the First Congress treated removal as a constitutional consequence of executive vesting.[\[12\]](#fn12) Madison argued that executive power included the authority to remove executive officers, since responsibility for faithful execution would be empty if the President could be held answerable for officers he could not displace.[\[13\]](#fn13)

The contrary view would make the President responsible for execution while allowing Congress to determine which executive officers could resist his direction, an arrangement that turns accountability into ceremony.[\[14\]](#fn14) Once the Court described the Commission by the power it exercised, *Humphrey’s Executor* lost the premise on which independent-agency doctrine had rested for nearly a century.[\[15\]](#fn15)

The Commission did not sit outside Article II because Congress preferred expertise, continuity, or political balance, since those design choices cannot revise the constitutional character of law enforcement.[\[16\]](#fn16) *Free Enterprise Fund* and *Seila Law* had already confined *Humphrey’s Executor* by refusing to extend its logic to modern agency arrangements that concentrated executive power beyond presidential control.[\[17\]](#fn17)

*Slaughter* completed that narrowing by holding that federal officers who exercise executive power must remain within the President’s authority, unless a specific historical exception covers the power in dispute.[\[18\]](#fn18) That reasoning reaches beyond the Federal Trade Commission, because an agency that binds private parties through federal law presents the same Article II defect regardless of professional expertise, statutory pedigree, or institutional sensitivity.[\[19\]](#fn19)

Congress retains broad authority to create offices, assign duties, appropriate funds, demand Senate confirmation, specify procedures, and require reasons for official action, although those authorities do not include severing execution from presidential responsibility.[\[20\]](#fn20)

## II Why the Fed Is the Hard Case

Among modern institutions, the Federal Reserve presents the hardest remaining case because its defenders invoke historical practice reaching from the Bank of North America through the First and Second Banks of the United States.[\[21\]](#fn21) That argument carries weight where the function at issue concerns public credit, money, and confidence, since the founding generation understood that monetary institutions can suffer when each decision appears to follow immediate presidential command.[\[22\]](#fn22)

*Cook* accepted that frame when the Court refused to stay an injunction preventing the President from removing Governor Lisa Cook while litigation over cause and process continued.[\[23\]](#fn23) The Court read the phrase for cause against the background of common-law removal concepts, statutory structure, and a tradition of central-banking independence that it treated as constitutionally relevant.[\[24\]](#fn24)

That reasoning gave the Federal Reserve a position unlike the Federal Trade Commission, because the Court viewed central banking as linked to early practice rather than New Deal innovation.[\[25\]](#fn25) Yet the historical frame also creates its own boundary, because independence supported by early banking practice reaches only powers comparable to those historically kept at some distance from presidential direction.[\[26\]](#fn26)

The First Bank and Second Bank lent money, received deposits, issued notes, held federal funds, and assisted public finance through corporate charters that connected national credit to private capital.[\[27\]](#fn27) Those institutions influenced money and credit, although their directors did not wield the same sovereign authority now exercised by the Board of Governors, which regulates banks, requires reports, examines records, issues orders, and imposes penalties.[\[28\]](#fn28)

The modern Board differs from chartered banking corporations because it is a federal agency whose members are appointed by the President, confirmed by the Senate, and protected by statutory removal restrictions.[\[29\]](#fn29) The difference governs the analogy because historical practice cannot be stated with the highest level of generality, especially since central banking, as a broad category, encompasses monetary, supervisory, regulatory, and coercive functions.[\[30\]](#fn30)

The Constitution requires a closer match between the old practice and the modern power, since Article II asks whether the officer executes federal law, rather than whether Congress placed that officer inside an institution with a familiar banking name.[\[31\]](#fn31)

## III The Board Is the Actor

For removal purposes, the Governors themselves supply the constitutional actor, because they hold protected terms while exercising statutory authority over private institutions, Reserve Banks, reports, examinations, rules, sanctions, and enforcement proceedings.[\[32\]](#fn32) Institutional design contains Reserve Banks, the Federal Open Market Committee, and other components, yet the Board remains the federal body whose members claim insulation from presidential removal.[\[33\]](#fn33)

That point prevents the analysis from dissolving into the phrase the Fed, which can obscure the difference between monetary operations and sovereign commands directed at private parties.[\[34\]](#fn34) The Board can examine accounts, books, and affairs of Reserve Banks and member banks, require reports and statements, supervise Reserve Banks, prescribe rules, and suspend or remove certain Reserve Bank officers.[\[35\]](#fn35)

Federal banking law also gives regulators enforcement tools that include notices stating charges, hearings, removal orders, prohibition orders, and civil money penalties against institution-affiliated parties.[\[36\]](#fn36) When Governors participate in that system, they help apply federal law to particular persons and institutions, creating legal consequences through authority that private actors cannot ignore without further sanction.[\[37\]](#fn37)

Those powers match the features *Slaughter* treated as executive, because they involve investigation, rule-bound application, enforcement, penalties, and legal consequences imposed under federal law.[\[38\]](#fn38) The Board’s monetary role does not convert those enforcement powers into nonexecutive authority, just as the Federal Trade Commission’s internal adjudications did not convert its enforcement program into judicial power.[\[39\]](#fn39)

Nor can the constitutional character of enforcement change because the regulated field is banking, since Article II concerns the exercise of federal power and leaves economic importance outside the constitutional inquiry.[\[40\]](#fn40) For that reason, the Federal Reserve exception cannot rest on institutional prestige, market reliance, or the understandable desire to shield monetary policy from immediate political pressure.[\[41\]](#fn41)

That inquiry also prevents the exception from becoming an instrument of migration.[\[42\]](#fn42) Congress cannot take power that would be executive in the Federal Trade Commission, the Securities and Exchange Commission, or the Consumer Financial Protection Bureau, move it into the Federal Reserve Board, and then claim that the power changed character because the Board also participates in monetary policy.[\[43\]](#fn43) Article II follows the power, not the agency label.[\[44\]](#fn44)

## IV History Must Match Power

The strongest defense of Federal Reserve independence begins with early practice, which deserves serious treatment because the first Congresses and early Presidents operated close to ratification and understood the constitutional settlement they helped implement.[\[45\]](#fn45) Historical practice can illuminate constitutional meaning when it began early, was sustained by public acceptance, and addressed the same constitutional problem rather than a superficially similar institutional concern.[\[46\]](#fn46)

That final condition limits the Federal Reserve exception because early banks addressed questions about national credit and banking corporations, whereas the modern Board addresses questions about officers exercising sovereign command.[\[47\]](#fn47) Hamilton’s defense of the First Bank described a corporation capable of holding property, lending money, and assisting public finance, which differs from a federal board that issues binding legal commands to regulated parties.[\[48\]](#fn48)

*McCulloch* confirmed Congress’s implied power to create the Bank as a means of carrying fiscal powers into execution, although the case did not hold that federal officers exercising executive power could be insulated from presidential removal.[\[49\]](#fn49) Jackson’s war against the Second Bank proves a political contest over banking power, yet it does not prove that bank directors exercised sovereign executive authority comparable to that of modern federal regulators.[\[50\]](#fn50)

The early banking tradition therefore supports an argument for institutional distance in monetary and credit functions, while leaving ordinary regulatory and enforcement power subject to the Article II rule *Slaughter* reaffirmed.[\[51\]](#fn51) If the exception were framed more broadly, Congress could attach enforcement authority to any historically respected institution and then defend its insulation by invoking pedigree rather than power.[\[52\]](#fn52)

That move would recreate the very mistake *Slaughter* corrected, shifting the inquiry from what the officer does to what Congress calls the institution that houses him.[\[53\]](#fn53) Courts applying Article II cannot accept that substitution, because constitutional accountability turns on the execution of federal law rather than congressional packaging.[\[54\]](#fn54)

## V The Cost of Congress’s Design

Properly confined, the exception must be function-specific and historically matched to the particular power Congress seeks to protect from presidential removal.[\[55\]](#fn55) That rule gives *Cook* its strongest possible reading without undoing *Slaughter*, since central-bank independence can persist where history supports it and gives way where the Board executes federal law against private parties.[\[56\]](#fn56)

Monetary policy presents a distinct question because early practice involved national banking institutions operating at some distance from immediate presidential direction on questions of credit and money.[\[57\]](#fn57) Regulation, supervision, examination, removal orders, prohibition orders, and civil penalties present the ordinary Article II question because those powers bind private parties through sovereign law.[\[58\]](#fn58)

Removal attaches to the office rather than each vote, which creates the principal difficulty for any function-specific account of the Federal Reserve exception.[\[59\]](#fn59) That difficulty does not defeat the function-specific account, because it identifies the cost of Congress’s own design.[\[60\]](#fn60) When Congress placed monetary judgment and coercive enforcement in the same protected office, it created an Article II problem that cannot be solved by expanding central-banking history beyond the powers that history can bear.[\[61\]](#fn61)

Where Congress combines monetary and enforcement powers in one protected office, Article II pressure falls on Congress’s choice to aggregate those powers inside the same insulated Board.[\[62\]](#fn62) The Constitution does not require courts to extend central-banking history to executive enforcement merely because Congress lodged both authorities in one office.[\[63\]](#fn63)

Courts applying that line ask whether the challenged removal protection covers a function historically associated with independent central banking or instead covers federal officers executing law against private parties.[\[64\]](#fn64) Where the removal dispute concerns monetary judgment, *Cook* supplies the historical path the Court reserved for the Federal Reserve, while coercive enforcement brings the Article II rule *Slaughter* restored.[\[65\]](#fn65)

This approach also avoids turning central-bank independence into a constitutional tunnel through which Congress can move ordinary executive power away from presidential control.[\[66\]](#fn66) The exception remains tied to the history that created it, while executive enforcement remains tied to the officer whom the Constitution makes responsible for faithful execution.[\[67\]](#fn67)

Congress can still choose expertise, continuity, procedure, and institutional distance for legitimate purposes, provided those choices do not place coercive federal power beyond the President’s removal authority.[\[68\]](#fn68)

## When Central Banking History Runs Out

Central banking can occupy a distinct place in constitutional law because it has a historical pedigree that ordinary independent agencies lack.[\[69\]](#fn69) The constitutional question changes when the Board regulates, supervises, examines, penalizes, and excludes private parties from banking, since those acts execute federal law through sovereign authority.[\[70\]](#fn70)

*Cook* can survive *Slaughter* only if the Federal Reserve exception follows the historical practice that justifies it, because bank history cannot bear the full weight of the authority now lodged in the modern Board.[\[71\]](#fn71) When the Board exercises monetary judgment, the Court faces the historical question reserved in *Cook*; when the Board executes federal law against private parties, central-banking history runs out, and Article II supplies the rule.[\[72\]](#fn72)

---

---

1. U.S. Const. art. II, § 1, cl. 1; id. § 3; *Trump v. Slaughter*, 609 U.S. \_\_\_, slip op. at 2–13 (2026); *Myers v. United States*, 272 U.S. 52, 117, 135, 164, 176 (1926). But see *Slaughter*, 609 U.S. \_\_\_, slip op. at 14–18 (Sotomayor, J., dissenting) (contesting the majority’s Article II inference). [↩︎](#fnref1)
2. The Federalist No. 70, at 423–27 (Alexander Hamilton) (Clinton Rossiter ed., 1961); *Slaughter*, 609 U.S. \_\_\_, slip op. at 4–9; see also The Federalist No. 72, at 436 (Alexander Hamilton) (describing executive officers as assistants or deputies subject to presidential superintendence). [↩︎](#fnref2)
3. *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28; *Trump v. Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6 (2026). [↩︎](#fnref3)
4. *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–27, 31–32; 15 U.S.C. §§ 41, 43, 45, 57a; see *Bowsher v. Synar*, 478 U.S. 714, 733–34 (1986); *INS v. Chadha*, 462 U.S. 919, 953 n.16 (1983); *Buckley v. Valeo*, 424 U.S. 1, 138–41 (1976). [↩︎](#fnref4)
5. *Cook*, 609 U.S. \_\_\_, slip op. at 1–6, 22–23; *Slaughter*, 609 U.S. \_\_\_, slip op. at 27–28; *Seila Law LLC v. CFPB*, 591 U.S. 197, 222 n.8 (2020). [↩︎](#fnref5)
6. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; id. at 24–27 (Thomas, J., dissenting); id. at 2–3 (Barrett, J., dissenting). [↩︎](#fnref6)
7. *Slaughter*, 609 U.S. \_\_\_, slip op. at 28–36; *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; see *Bowsher*, 478 U.S. at 726–34\. [↩︎](#fnref7)
8. 15 U.S.C. § 41; *Humphrey’s Executor v. United States*, 295 U.S. 602, 619–32 (1935); *Slaughter*, 609 U.S. \_\_\_, slip op. at 16–18\. [↩︎](#fnref8)
9. *Humphrey’s Executor*, 295 U.S. at 624–28; *Slaughter*, 609 U.S. \_\_\_, slip op. at 16–21\. [↩︎](#fnref9)
10. *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–27, 31–32; 15 U.S.C. §§ 43, 45, 57a. [↩︎](#fnref10)
11. *Slaughter*, 609 U.S. \_\_\_, slip op. at 24–27, 31–32; *Bowsher*, 478 U.S. at 733–34; *Chadha*, 462 U.S. at 953 n.16; *Buckley*, 424 U.S. at 138–41\. [↩︎](#fnref11)
12. 1 Annals of Cong. 463, 499 (1789); *Myers*, 272 U.S. at 111–36; *Slaughter*, 609 U.S. \_\_\_, slip op. at 9–13\. [↩︎](#fnref12)
13. 1 Annals of Cong. 499 (1789); *Slaughter*, 609 U.S. \_\_\_, slip op. at 9–13\. [↩︎](#fnref13)
14. *Myers*, 272 U.S. at 117, 164; *Free Enterprise Fund v. Public Co. Accounting Oversight Board*, 561 U.S. 477, 492–97 (2010); *Seila Law*, 591 U.S. at 213–22; *Slaughter*, 609 U.S. \_\_\_, slip op. at 28–36\. [↩︎](#fnref14)
15. *Slaughter*, 609 U.S. \_\_\_, slip op. at 18–21, 27–28; see *Morrison v. Olson*, 487 U.S. 654, 690 n.28 (1988). [↩︎](#fnref15)
16. *Slaughter*, 609 U.S. \_\_\_, slip op. at 21–27, 28–36; *Bowsher*, 478 U.S. at 733–34; *Chadha*, 462 U.S. at 953 n.16\. [↩︎](#fnref16)
17. *Free Enterprise Fund*, 561 U.S. at 492–97; *Seila Law*, 591 U.S. at 213–22; *Slaughter*, 609 U.S. \_\_\_, slip op. at 18–21\. [↩︎](#fnref17)
18. *Slaughter*, 609 U.S. \_\_\_, slip op. at 27–28, 31–36; *Myers*, 272 U.S. at 117, 164\. [↩︎](#fnref18)
19. *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28, 31–32; *Bowsher*, 478 U.S. at 733–34\. [↩︎](#fnref19)
20. U.S. Const. art. I, § 8, cl. 18; id. art. II, § 2, cl. 2; id. art. II, §§ 1, 3; *Myers*, 272 U.S. at 128–35; *Seila Law*, 591 U.S. at 213–24; *Slaughter*, 609 U.S. \_\_\_, slip op. at 28–36\. [↩︎](#fnref20)
21. *Cook*, 609 U.S. \_\_\_, slip op. at 1–6, 22–23; *Slaughter*, 609 U.S. \_\_\_, slip op. at 27–28; *Seila Law*, 591 U.S. at 222 n.8\. [↩︎](#fnref21)
22. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23; Alexander Hamilton, Final Version of the Second Report on the Further Provision Necessary for Establishing Public Credit (Dec. 13, 1790), in 7 The Papers of Alexander Hamilton 305, 331 (Harold C. Syrett ed., 1963). [↩︎](#fnref22)
23. *Cook*, 609 U.S. \_\_\_, slip op. at 1–7, 16–17\. [↩︎](#fnref23)
24. Id. at 7–16, 18–21\. [↩︎](#fnref24)
25. Id. at 22–23; *Slaughter*, 609 U.S. \_\_\_, slip op. at 27–28\. [↩︎](#fnref25)
26. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; id. at 24–27 (Thomas, J., dissenting); id. at 2–3 (Barrett, J., dissenting). [↩︎](#fnref26)
27. Act of Feb. 25, 1791, ch. 10, 1 Stat. 191; Act of Apr. 10, 1816, ch. 44, 3 Stat. 266; *McCulloch v. Maryland*, 17 U.S. (4 Wheat.) 316, 401–25 (1819); *Cook*, 609 U.S. \_\_\_, slip op. at 3–6, 22–23\. [↩︎](#fnref27)
28. *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting); 12 U.S.C. §§ 248(a), (d), (f), (h), (j), (n), (p), 1818(b), (e), (g), (i). [↩︎](#fnref28)
29. 12 U.S.C. §§ 241–242; *Cook*, 609 U.S. \_\_\_, slip op. at 5–6\. [↩︎](#fnref29)
30. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; 12 U.S.C. §§ 241–242, 248, 1818; see *NLRB v. Noel Canning*, 573 U.S. 513, 524–26 (2014); *United States v. Rahimi*, 602 U.S. 680, 691–92 (2024). [↩︎](#fnref30)
31. U.S. Const. art. II, §§ 1, 3; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28, 31–32; *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; id. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref31)
32. 12 U.S.C. §§ 241–242, 248, 1818; *Cook*, 609 U.S. \_\_\_, slip op. at 1–2, 5–6, 24–27 (Thomas, J., dissenting). [↩︎](#fnref32)
33. 12 U.S.C. §§ 241–242, 263; Board of Governors of the Federal Reserve System, The Fed Explained: Who We Are; *Cook*, 609 U.S. \_\_\_, slip op. at 5–6\. [↩︎](#fnref33)
34. 12 U.S.C. §§ 241–242, 263; Board of Governors of the Federal Reserve System, The Fed Explained: Who We Are; *Cook*, 609 U.S. \_\_\_, slip op. at 5–6\. [↩︎](#fnref34)
35. 12 U.S.C. § 248(a), (d), (f), (h), (j), (n), (p). [↩︎](#fnref35)
36. 12 U.S.C. § 1818(b), (e), (g), (i). [↩︎](#fnref36)
37. Id. § 1818(b), (e), (g), (i), (j); *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref37)
38. *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–27, 31–32; *Bowsher*, 478 U.S. at 733–34; *Buckley*, 424 U.S. at 138–41\. [↩︎](#fnref38)
39. *Slaughter*, 609 U.S. \_\_\_, slip op. at 19–27, 31–32; *Cook*, 609 U.S. \_\_\_, slip op. at 22 n.6; *Bowsher*, 478 U.S. at 733–34\. [↩︎](#fnref39)
40. U.S. Const. art. II, §§ 1, 3; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28; *Bowsher*, 478 U.S. at 733–34\. [↩︎](#fnref40)
41. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; id. at 24–27 (Thomas, J., dissenting); *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–36\. [↩︎](#fnref41)
42. *Slaughter*, 609 U.S. \_\_\_, slip op. at 28–36; *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; *Bowsher*, 478 U.S. at 726–34\. [↩︎](#fnref42)
43. *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–36; *Seila Law*, 591 U.S. at 213–22; *Free Enterprise Fund*, 561 U.S. at 492–97; *Lucia v. SEC*, 585 U.S. 237 (2018); *SEC v. Jarkesy*, 603 U.S. 109 (2024); *Cook*, 609 U.S. \_\_\_, slip op. at 22 n.6\. [↩︎](#fnref43)
44. U.S. Const. art. II, §§ 1, 3; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28; *Bowsher*, 478 U.S. at 733–34\. [↩︎](#fnref44)
45. *Myers*, 272 U.S. at 174–76; *Noel Canning*, 573 U.S. at 524–26; *Youngstown Sheet & Tube Co. v. Sawyer*, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); *Cook*, 609 U.S. \_\_\_, slip op. at 22–23\. [↩︎](#fnref45)
46. *Noel Canning*, 573 U.S. at 524–26; *The Pocket Veto Case*, 279 U.S. 655, 689 (1929); *Cook*, 609 U.S. \_\_\_, slip op. at 22–23; see also *Slaughter*, 609 U.S. \_\_\_, slip op. at 9–13\. But see *Slaughter*, 609 U.S. \_\_\_, slip op. at 9–27 (Sotomayor, J., dissenting) (arguing that later practice also supports independent agencies). [↩︎](#fnref46)
47. Act of Feb. 25, 1791, ch. 10, 1 Stat. 191; Act of Apr. 10, 1816, ch. 44, 3 Stat. 266; *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref47)
48. Alexander Hamilton, Final Version of the Second Report on the Further Provision Necessary for Establishing Public Credit (Dec. 13, 1790), in 7 The Papers of Alexander Hamilton 305, 323–31 (Harold C. Syrett ed., 1963); *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting); 12 U.S.C. §§ 248, 1818\. [↩︎](#fnref48)
49. *McCulloch*, 17 U.S. (4 Wheat.) at 401–25; *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref49)
50. Andrew Jackson, Veto Message Regarding the Bank of the United States (July 10, 1832), in 2 A Compilation of the Messages and Papers of the Presidents 576 (James D. Richardson ed., 1897); *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref50)
51. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28, 31–32\. [↩︎](#fnref51)
52. *Slaughter*, 609 U.S. \_\_\_, slip op. at 28–36; *Cook*, 609 U.S. \_\_\_, slip op. at 22 n.6; *Bowsher*, 478 U.S. at 726–34\. [↩︎](#fnref52)
53. *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–36; *Cook*, 609 U.S. \_\_\_, slip op. at 22 n.6; id. at 2–3 (Barrett, J., dissenting). [↩︎](#fnref53)
54. U.S. Const. art. II, §§ 1, 3; *Myers*, 272 U.S. at 117, 164; *Free Enterprise Fund*, 561 U.S. at 492–97; *Seila Law*, 591 U.S. at 213–22; *Slaughter*, 609 U.S. \_\_\_, slip op. at 28–36\. [↩︎](#fnref54)
55. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28; *Rahimi*, 602 U.S. at 691–92; *Noel Canning*, 573 U.S. at 524–26\. [↩︎](#fnref55)
56. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–36\. [↩︎](#fnref56)
57. *Cook*, 609 U.S. \_\_\_, slip op. at 1–6, 22–23; Hamilton, supra note 48, at 323–31; Act of Feb. 25, 1791, ch. 10, 1 Stat. 191; Act of Apr. 10, 1816, ch. 44, 3 Stat. 266\. But see *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref57)
58. 12 U.S.C. §§ 248, 1818; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–27, 31–32; *Bowsher*, 478 U.S. at 733–34; *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref58)
59. 12 U.S.C. § 242; *Cook*, 609 U.S. \_\_\_, slip op. at 7–16; *Humphrey’s Executor*, 295 U.S. at 619–32; *Morrison*, 487 U.S. at 685–96\. [↩︎](#fnref59)
60. *Cook*, 609 U.S. \_\_\_, slip op. at 22 n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–36\. [↩︎](#fnref60)
61. *Cook*, 609 U.S. \_\_\_, slip op. at 22 n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–36; Aditya Bamzai & Aaron L. Nielson, Article II and the Federal Reserve, 109 Cornell L. Rev. 843, 905–08 (2024); *Cook*, 609 U.S. \_\_\_, slip op. at 2–3 (Barrett, J., dissenting). [↩︎](#fnref61)
62. 12 U.S.C. §§ 241–242, 248, 1818; *Cook*, 609 U.S. \_\_\_, slip op. at 22 n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–36\. [↩︎](#fnref62)
63. *Cook*, 609 U.S. \_\_\_, slip op. at 22 n.6; id. at 24–27 (Thomas, J., dissenting); *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–36\. [↩︎](#fnref63)
64. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28; *Bowsher*, 478 U.S. at 733–34; *Chadha*, 462 U.S. at 953 n.16\. [↩︎](#fnref64)
65. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28, 31–32\. [↩︎](#fnref65)
66. *Slaughter*, 609 U.S. \_\_\_, slip op. at 28–36; *Bowsher*, 478 U.S. at 726–34; *Free Enterprise Fund*, 561 U.S. at 492–97; *Seila Law*, 591 U.S. at 213–22\. [↩︎](#fnref66)
67. U.S. Const. art. II, §§ 1, 3; *Myers*, 272 U.S. at 117, 164; *Slaughter*, 609 U.S. \_\_\_, slip op. at 2–13, 25–36\. [↩︎](#fnref67)
68. U.S. Const. art. I, § 8, cl. 18; id. art. II, §§ 1–3; *Seila Law*, 591 U.S. at 213–24; *Slaughter*, 609 U.S. \_\_\_, slip op. at 28–36\. [↩︎](#fnref68)
69. *Cook*, 609 U.S. \_\_\_, slip op. at 1–6, 22–23; *Slaughter*, 609 U.S. \_\_\_, slip op. at 27–28; *Seila Law*, 591 U.S. at 222 n.8\. But see *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref69)
70. 12 U.S.C. §§ 248, 1818; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–27, 31–32; *Bowsher*, 478 U.S. at 733–34; *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting). [↩︎](#fnref70)
71. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28, 31–36; *Cook*, 609 U.S. \_\_\_, slip op. at 24–27 (Thomas, J., dissenting); id. at 2–3 (Barrett, J., dissenting). [↩︎](#fnref71)
72. *Cook*, 609 U.S. \_\_\_, slip op. at 22–23 & n.6; *Slaughter*, 609 U.S. \_\_\_, slip op. at 25–28, 31–32; U.S. Const. art. II, §§ 1, 3\. [↩︎](#fnref72)
### The Affordability Reset
URL: https://www.thecommonplace.press/the-affordability-reset/
Last updated: 2026-06-29T13:01:13.000Z
The central challenge in analyzing American affordability after 2020 is that broad claims often outrun the available evidence. Although wage recovery relative to inflation is measurable, many households still lack a viable route to ownership, stable rental housing, geographic mobility, or a dwelling suitable for family formation.[\[1\]](#fn1) Households that refinanced in 2021 may remain protected from recent shocks, while new entrants face a different market shaped by current mortgage rates and prices.[\[2\]](#fn2)

The data justify that distinction at the outset because the general wage-price narrative is more favorable than the household-entry narrative. From April 2020 to May 2026, the Consumer Price Index rose by roughly thirty percent, while median nominal weekly earnings for full-time wage and salary employees rose by almost the same amount over a similar period.[\[3\]](#fn3) Median real weekly earnings also stood modestly above their early-2020 level, which weakens the broader claim that wages simply collapsed relative to the general price level.[\[4\]](#fn4) That fact also clarifies the stronger claim that wages recovered more against consumer prices than against the cost of entering, financing, insuring, and maintaining a household after the housing reset.[\[5\]](#fn5)

This article therefore uses household entry as the controlling variable for the analysis that follows, as it captures the cost of moving from dependence to independence. The term refers to the practical costs of renting independently, buying a first home, moving for employment, covering escrow costs, paying utilities, maintaining transportation, carrying health coverage, and retaining enough residual income for children, debt service, and ordinary savings.[\[6\]](#fn6) That measure fits the post-2020 experience more closely than a wage-versus-index comparison because many households now face a question beyond whether a weekly paycheck buys the same general basket of goods. The harder question is whether the same paycheck can still buy the start of an independent household under today’s housing and financing costs.[\[7\]](#fn7)

Housing provides the proof because it combines asset prices, financing costs, insurance, taxes, and mobility into a single monthly obligation.[\[8\]](#fn8) The Joint Center for Housing Studies at Harvard reported in June 2026 that median new and existing home prices both exceeded $400,000, that existing-home prices had risen by 54 percent nationwide since 2020, and that those prices remained nearly five times median income.[\[9\]](#fn9) The same report found that monthly costs on the median-priced home rose from about $1,700 in early 2020 to about $3,100 in the fourth quarter of 2025, pushing the income needed to afford the payment from about $66,000 to more than $120,000.[\[10\]](#fn10) The Consumer Financial Protection Bureau presented the financing mechanism in plainer numerical terms when it found that, on a $400,000 loan, the move from the recent low in mortgage rates to the later peak added $1,265 to the monthly principal-and-interest payment, a 78 percent increase.[\[11\]](#fn11)

These figures mark a threshold in the structure of household entry rather than a generalized feeling of unease. Incumbent owners with fixed-rate mortgages from 2020 or 2021 may face higher taxes and insurance premiums, although their principal and interest obligations remain stable.[\[12\]](#fn12) New entrants, by contrast, must absorb elevated prices and higher rates while competing with established owners whose equity has grown, investors with lower capital costs, and older buyers with larger down payments.[\[13\]](#fn13) The result is a market in which ownership endures, while the cost of entry has increased significantly for younger households and those seeking to move.[\[14\]](#fn14)

Data on first-time buyers illustrate the challenge with unusual clarity because they focus on households that completed transactions rather than households that merely hoped to qualify. According to the National Association of Realtors, first-time buyers accounted for just 21 percent of all home purchases in 2025, while the median age for this group climbed to forty.[\[15\]](#fn15) Although the trade group’s institutional perspective requires the same skepticism reserved for market participants, its reported series nonetheless illuminates key trends in market composition.[\[16\]](#fn16) When the median first-time buyer enters the market at age forty, the household-entry defect remains, even where aggregate wage statistics appear favorable.[\[17\]](#fn17)

Renters face the same problem on the other side, as Harvard estimated that 43.5 million households were cost-burdened in 2024, meaning they spent more than 30 percent of their income on housing.[\[18\]](#fn18) Harvard also estimated that 21.6 million households were severely burdened, meaning they spent more than 50 percent of their income on housing.[\[19\]](#fn19) Those estimates came after several years in which renters and would-be buyers were pressed into the same bottleneck.[\[20\]](#fn20) Higher ownership costs kept more households in the rental market, while higher construction and operating costs shifted much of the rental stock toward higher price points.[\[21\]](#fn21)

Recent rent data clarify the distinction between ongoing increases and persistently high price levels, making the claim more precise. Harvard’s 2026 rental report found that asking rents for professionally managed apartments declined slightly in late 2025, following a period of flat national rent growth.[\[22\]](#fn22) This evidence indicates that increased supply can moderate pressure when new units are delivered, and it counsels against treating rents as if all markets remain in rapid ascent.[\[23\]](#fn23) The more persistent problem is the elevated rent distribution after the surge, the reduction in lower-cost units, and the diminished financial margin for households after covering rent and utilities.[\[24\]](#fn24)

Insurance then turns the housing question from a sale-price problem into an ownership-cost problem that reaches the monthly budget directly. The Federal Reserve Bank of Dallas found that homeowners insurance premiums rose about 70 percent nationally from 2019 to 2025, using ICE McDash data that cover a large share of the mortgage market.[\[25\]](#fn25) Treasury’s Federal Insurance Office likewise reported in January 2025 that homeowners insurance had become more costly and harder to obtain for millions of Americans.[\[26\]](#fn26) Insurance is usually treated as a secondary housing cost, although in a Gulf Coast state, a fire-prone state, or a wind-exposed coastal county it increasingly functions as part of the price of occupying land.[\[27\]](#fn27)

The household budget confirms the same mechanism outside the mortgage file because electricity, groceries, health premiums, deductibles, transportation, and childcare all compete for the income left after shelter.[\[28\]](#fn28) The Kaiser Family Foundation reported that annual premiums for employer-sponsored family health coverage reached $26,993 in 2025, with employees contributing an average of $6,850.[\[29\]](#fn29) The cost of health coverage may fall outside mortgage underwriting, yet it helps determine whether a family can remain solvent after mortgage payments, rent, utilities, insurance, and taxes are paid.[\[30\]](#fn30)

The strongest skeptical argument deserves early attention because it is true as far as it goes and prevents the article from overstating its own claim. Median real wages have recovered more than public frustration suggests, lower-wage employees experienced unusually strong gains in parts of the post-COVID labor market, aggregate household debt service remains well below its mid-2000s peak, and some affordability measures show modest improvement compared to their worst recent readings.[\[31\]](#fn31) Fixed-rate incumbent owners also avoided the monthly-payment shock that hit new buyers, meaning the pressure is concentrated among entrants and movers.[\[32\]](#fn32)

These facts narrow the claim because the relevant pressure is concentrated at the point of entry, mobility, and family formation. The national median may rise even as a first-time buyer loses the ability to qualify for a median-priced home.[\[33\]](#fn33) Asking rents may flatten in national data while renters continue to pay levels set by the prior surge and absorb higher utility costs.[\[34\]](#fn34) Homeowners may avoid the rate shock and still face higher escrow payments for insurance and taxes, while families may earn more in nominal dollars yet lose the capacity to move across tenures.[\[35\]](#fn35)

Measurement itself reinforces the need for care because the Consumer Price Index, a price-change measure, tracks a basket of goods and services.[\[36\]](#fn36) It is valuable for inflation analysis, yet it is an imperfect test of household formation on its own because it omits the mortgage, down payment, insurance, and mobility questions that households face.[\[37\]](#fn37) Sale-price measures have their own limits because median new-home prices can shift with the mix of houses sold, which is why repeat-sales indexes such as the Federal Housing Finance Agency House Price Index are often better for constant-quality price movement.[\[38\]](#fn38)

The post-2020 episode became severe because several forces converged at the same time and then flowed into the housing market. Pandemic-era demand and supply disruptions raised prices across the economy, labor-market tightness pushed wages up after inflation began to run, and ultra-low mortgage rates pulled demand forward while helping capitalize future affordability into home prices.[\[39\]](#fn39) When interest rates rose, the higher prices remained because supply was tight and existing owners with low fixed-rate mortgages had persuasive reasons to stay put.[\[40\]](#fn40)

The rate reset introduced a stark divide between incumbents and entrants by converting identical family incomes into different standards of living.[\[41\]](#fn41) The same income could look ample under a 2021 mortgage and far more constrained under the terms available in 2026.[\[42\]](#fn42) The house may have the same size, condition, location, and quality, yet the monthly obligation has become a different instrument. For those pursuing new opportunities, relocation meant giving up the security of a previous mortgage, confronting elevated rates, and seeing nominal wage increases eclipsed by rising financing costs before any improvement reached everyday life.[\[43\]](#fn43)

History shows several ways such gaps can close, and most of them impose costs that deserve candor before they become policy models. After World War II, inflation rose as price controls ended and shortages persisted, then eased as supply normalized and the economy moved through the 1948-1949 recession.[\[44\]](#fn44) In the late 1970s and early 1980s, the United States resolved high inflation through the Volcker disinflation and recession, with mortgage rates and unemployment imposing serious costs before price stability returned.[\[45\]](#fn45) After 2008, housing became more affordable for later buyers because home prices fell, mortgage rates declined, and a financial crisis destroyed household wealth.[\[46\]](#fn46) Those episodes brought prices, wages, and asset values closer together through adjustment, policy, recession, or some combination of the three.[\[47\]](#fn47)

The late 1990s offer the better model because productivity accelerated, labor markets tightened, inflation remained contained, and real wage gains finally reached employees who had spent much of the prior period behind.[\[48\]](#fn48) A credible affordability agenda should prefer that path, with durable real wage growth driven by productivity and strong labor conditions, price stability, and responsive supply.[\[49\]](#fn49) Although recessions can improve affordability metrics by suppressing demand, such solutions merely echo the dynamic of foreclosure waves that generate cheaper comparables through distress rather than genuine progress.[\[50\]](#fn50)

Law shapes housing supply by transforming what might seem a natural fact into the outcome of layered legal, regulatory, and financial structures.[\[51\]](#fn51) Private landownership, local ordinances, state enabling acts, infrastructure finance, insurance requirements, building codes, environmental review, utility connection rules, tax assessments, and the police power together define the conditions for development.[\[52\]](#fn52) Even metropolitan areas rich in land, labor, and demand frequently face prohibitions embedded in local law that prevent the creation of the housing needed.[\[53\]](#fn53) The resulting shortage is revealed in elevated market prices, yet it is the legal system that has already set the boundaries long before the market clears.[\[54\]](#fn54)

The conservative legal account begins with a simple premise that scarcity created or protected by law should be judged as law rather than excused as market inevitability.[\[55\]](#fn55) When government interventions increase demand for housing without loosening restrictive local supply, public spending often becomes a subsidy for land values and rents.[\[56\]](#fn56) Vouchers, tax credits, and subsidized loans can deliver targeted relief, though their impact at scale depends on builders' ability to deliver new units in areas of genuine demand.[\[57\]](#fn57) In the absence of expanded supply, additional purchasing power intensifies competition for the same scarce housing, which means a lasting solution begins with the legal structures that govern production.[\[58\]](#fn58)

Zoning is only the most visible component of that system because the less visible rules often decide whether a compliant project can become a built unit.[\[59\]](#fn59) Minimum lot sizes, parking mandates, setback rules, discretionary hearings, impact fees, historic-review processes, environmental review used as delay, and uncertain permitting clocks all determine whether a lawful owner may add housing on lawful land.[\[60\]](#fn60) The Department of Housing and Urban Development has warned that complex local regulatory conditions raise costs, exclude smaller builders, and slow supply.[\[61\]](#fn61) Wharton and the National Bureau of Economic Research likewise find that restrictive land-use regulation is associated with fewer permits and higher housing costs in tightly regulated markets.[\[62\]](#fn62)

The property-rights frame gives the legal claim its force by translating affordability from sentiment into ownership, use, and permitting.[\[63\]](#fn63) Homeowners who satisfy physical and safety standards for their lots should have the right to construct accessory dwelling units.[\[64\]](#fn64) Landowners controlling oversized parcels with sufficient utilities, drainage, and access should have the opportunity to divide their land for smaller homes.[\[65\]](#fn65) Developers submitting proposals that meet objective rules should receive clear, timely decisions from the responsible permitting authority within a known legal process.[\[66\]](#fn66) Local government appropriately exercises authority over nuisances, safety, infrastructure, drainage, and emergency access, although procedural barriers should yield when existing law leaves new housing lawful.[\[67\]](#fn67)

State legislatures operate as the source of municipal authority, delegating power to cities while retaining the prerogative to preempt or constrain local decisions.[\[68\]](#fn68) State preemption of exclusionary local policies is frequently cast as an encroachment on local control, yet it is state law itself that establishes the authority municipalities invoke.[\[69\]](#fn69) When local regulations threaten statewide housing markets, labor mobility, or family formation, legislatures have authority to set legal boundaries on delegated power.[\[70\]](#fn70) That arrangement is federalism in practical form because city councils exercise authority on behalf of, and are dependent upon, the state.[\[71\]](#fn71)

Insurance and taxation require the same legal discipline because both can turn a nominally affordable purchase into an unaffordable monthly obligation.[\[72\]](#fn72) Homeowners insurance remains expensive when underlying risk, rebuilding costs, litigation costs, reinsurance costs, and fraud pressure remain high.[\[73\]](#fn73) State regulators should require solvency, explicit pricing, and fair claims practices, while permitting rates to reflect real risk and encouraging mitigation that reduces losses.[\[74\]](#fn74) Property-tax systems likewise need rules that restrain assessment shocks, make escrow costs legible, and prevent local governments from treating rising paper values as a silent household levy.[\[75\]](#fn75)

Infrastructure imposes its own limits because housing permits become meaningless without adequate water, wastewater, roads, drainage, or power to support growth.[\[76\]](#fn76) Effective supply policy requires a sharp distinction between charges that transparently finance real infrastructure and charges designed to operate as hidden barriers to entry.[\[77\]](#fn77) Properly structured impact fees can fund necessary capacity when they are clear, standardized, proportionate, and tied to actual infrastructure costs, while arbitrary or punitive charges suppress new development and protect incumbent interests by raising the cost of market participation.[\[78\]](#fn78)

Labor market constraints arise from demographics and economic cycles, as well as the rules governing occupational licensing, apprenticeship requirements, immigration policy, and interstate credentialing.[\[79\]](#fn79) Policies that expand housing supply without addressing these labor bottlenecks will inevitably slow construction, regardless of political intent.[\[80\]](#fn80) Safety must remain the foundation of licensing standards, yet those standards should demand genuine competence rather than serve as protection for established providers at the expense of families seeking homes.[\[81\]](#fn81)

The policy order ought to follow the evidence, beginning with inflation low enough that wage gains become real gains.[\[82\]](#fn82) Productivity must bear a greater share of the burden, because wages can rise durably when each hour of labor produces more value.[\[83\]](#fn83) Housing law should then allow supply where demand is strongest, using objective rules, smaller lots, accessory units, duplexes, office conversions, manufactured housing, modular construction, and faster permitting where health and safety conditions are met.[\[84\]](#fn84) Insurance, property taxes, and utilities belong in the same frame because they now determine whether ownership remains affordable after closing.[\[85\]](#fn85)

It is tempting to cast affordability as a struggle between families and market forces, yet that account omits the role of public law in creating many of the binding constraints.[\[86\]](#fn86) Families priced out of starter homes face the combined costs of land scarcity, financing, insurance, construction, and local veto authority.[\[87\]](#fn87) Some of these costs are inherent, while others arise from policy decisions that converted routine building into a matter of official discretion.[\[88\]](#fn88)

A more precise account of American affordability rests on a foundation narrower and more durable than broad grievances about rising prices. Although wage growth has surpassed headline inflation more than is commonly acknowledged, it has yet to reclaim the ground lost to the escalating cost of forming a household.[\[89\]](#fn89) Housing captures this reality because price, financing, insurance, taxes, and legal scarcity all reach the household through a single monthly obligation.[\[90\]](#fn90) Sustaining a society that supports younger families, labor mobility, property ownership, and a stable middle class requires legal structures that permit construction rather than exclusion.[\[91\]](#fn91)

---

1. See U.S. Bureau of Lab. Stat., *Consumer Price Index*, [https://www.bls.gov/cpi/](https://www.bls.gov/cpi/?ref=thecommonplace.press); Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026* (2026), [https://www.jchs.harvard.edu/state-nations-housing-2026](https://www.jchs.harvard.edu/state-nations-housing-2026?ref=thecommonplace.press); Lisa J. Dettling & Melissa S. Kearney, House Prices and Birth Rates: The Impact of the Real Estate Market on the Decision to Have a Baby, 110 *J. Pub. Econ.* 82 (2014), [https://doi.org/10.1016/j.jpubeco.2013.09.009](https://doi.org/10.1016/j.jpubeco.2013.09.009?ref=thecommonplace.press); W.A.V. Clark, Do Women Delay Family Formation in Expensive Housing Markets?, 27 *Demographic Rsch.* 1 (2012), [https://www.demographic-research.org/articles/volume/27/1](https://www.demographic-research.org/articles/volume/27/1?ref=thecommonplace.press). [↩︎](#fnref1)
2. See Consumer Fin. Prot. Bureau, *Data Spotlight: The Impact of Changing Mortgage Interest Rates* (Sept. 17, 2024), [https://www.consumerfinance.gov/data-research/research-reports/data-spotlight-the-impact-of-changing-mortgage-interest-rates/](https://www.consumerfinance.gov/data-research/research-reports/data-spotlight-the-impact-of-changing-mortgage-interest-rates/?ref=thecommonplace.press); Ross M. Batzer, Jonah C. Coste, William M. Doerner & Michael J. Seiler, *The Lock-In Effect of Rising Mortgage Rates*, Fed. Hous. Fin. Agency Working Paper No. 24-03 (Mar. 2024), [https://www.fhfa.gov/research/papers/wp2403](https://www.fhfa.gov/research/papers/wp2403?ref=thecommonplace.press). [↩︎](#fnref2)
3. See Consumer Price Index for All Urban Consumers: All Items in U.S. City Average \[CPIAUCSL\], Fed. Rsrv. Bank of St. Louis, FRED, [https://fred.stlouisfed.org/series/CPIAUCSL](https://fred.stlouisfed.org/series/CPIAUCSL?ref=thecommonplace.press); Employed Full Time: Median Usual Weekly Nominal Earnings (Second Quartile): Wage and Salary Workers: 16 Years and Over \[LES1252881500Q\], Fed. Rsrv. Bank of St. Louis, FRED, [https://fred.stlouisfed.org/series/LES1252881500Q](https://fred.stlouisfed.org/series/LES1252881500Q?ref=thecommonplace.press). CPIAUCSL rose from 256.032 in April 2020 to 333.979 in May 2026, and nominal median weekly earnings rose from $951 in the first quarter of 2020 to $1,233 in the first quarter of 2026\. [↩︎](#fnref3)
4. See Employed Full Time: Median Usual Weekly Real Earnings: Wage and Salary Workers: 16 Years and Over \[LES1252881600Q\], Fed. Rsrv. Bank of St. Louis, FRED, [https://fred.stlouisfed.org/series/LES1252881600Q](https://fred.stlouisfed.org/series/LES1252881600Q?ref=thecommonplace.press). The series rose from 367 in the first quarter of 2020 to 376 in the first quarter of 2026\. [↩︎](#fnref4)
5. See CPIAUCSL, supra note 3; LES1252881500Q, supra note 3; LES1252881600Q, supra note 4; Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026* 22–24 (2026), [https://www.jchs.harvard.edu/sites/default/files/reports/files/Harvard\_JCHS\_The\_State\_of\_the\_Nations\_Housing\_2026\_0.pdf](https://www.jchs.harvard.edu/sites/default/files/reports/files/Harvard%5FJCHS%5FThe%5FState%5Fof%5Fthe%5FNations%5FHousing%5F2026%5F0.pdf?ref=thecommonplace.press); Consumer Fin. Prot. Bureau, supra note 2\. [↩︎](#fnref5)
6. See Joint Ctr. for Hous. Studs. of Harvard Univ., *Housing Unaffordability Soared to New Highs in 2024* (Feb. 4, 2026), [https://www.jchs.harvard.edu/blog/housing-unaffordability-soared-new-highs-2024](https://www.jchs.harvard.edu/blog/housing-unaffordability-soared-new-highs-2024?ref=thecommonplace.press); KFF, *2025 Employer Health Benefits Survey* (Oct. 22, 2025), [https://www.kff.org/health-costs/2025-employer-health-benefits-survey/](https://www.kff.org/health-costs/2025-employer-health-benefits-survey/?ref=thecommonplace.press); Household Debt Service Payments as a Percent of Disposable Personal Income \[TDSP\], Fed. Rsrv. Bank of St. Louis, FRED, [https://fred.stlouisfed.org/series/TDSP](https://fred.stlouisfed.org/series/TDSP?ref=thecommonplace.press); Consumer Price Index for All Urban Consumers: Electricity in U.S. City Average \[CUSR0000SEHF01\], Fed. Rsrv. Bank of St. Louis, FRED, [https://fred.stlouisfed.org/series/CUSR0000SEHF01](https://fred.stlouisfed.org/series/CUSR0000SEHF01?ref=thecommonplace.press); Consumer Price Index for All Urban Consumers: Food at Home in U.S. City Average \[CUSR0000SAF11\], Fed. Rsrv. Bank of St. Louis, FRED, [https://fred.stlouisfed.org/series/CUSR0000SAF11](https://fred.stlouisfed.org/series/CUSR0000SAF11?ref=thecommonplace.press). [↩︎](#fnref6)
7. See Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5, at 22–24; Consumer Fin. Prot. Bureau, supra note 2; Shan Ge, Stephanie Johnson & Nitzan Tzur-Ilan, Home Insurance Premiums Influence Mortgage Delinquencies, Relocations, Fed. Rsrv. Bank of Dallas (Mar. 24, 2026), [https://www.dallasfed.org/research/economics/2026/0324](https://www.dallasfed.org/research/economics/2026/0324?ref=thecommonplace.press); KFF, supra note 6\. [↩︎](#fnref7)
8. See Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5, at 22–24; Consumer Fin. Prot. Bureau, supra note 2; Ge, Johnson & Tzur-Ilan, supra note 7\. [↩︎](#fnref8)
9. See Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5, at 22–24; Daniel McCue, *Ten Takeaways from the 2026 State of the Nation’s Housing*, Joint Ctr. for Hous. Studs. of Harvard Univ. (June 17, 2026), [https://www.jchs.harvard.edu/blog/ten-takeaways-2026-state-nations-housing](https://www.jchs.harvard.edu/blog/ten-takeaways-2026-state-nations-housing?ref=thecommonplace.press). [↩︎](#fnref9)
10. See Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5, at 22–24; McCue, supra note 9\. [↩︎](#fnref10)
11. See Consumer Fin. Prot. Bureau, supra note 2\. [↩︎](#fnref11)
12. See Consumer Fin. Prot. Bureau, supra note 2; Batzer et al., supra note 2; Ge, Johnson & Tzur-Ilan, supra note 7; U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022: Climate-Related Risks and Other Factors* (Jan. 2025), [https://home.treasury.gov/system/files/311/Analyses\_of\_US\_Homeowners\_Insurance\_Markets\_2018-2022\_Climate-Related\_Risks\_and\_Other\_Factors.pdf](https://home.treasury.gov/system/files/311/Analyses%5Fof%5FUS%5FHomeowners%5FInsurance%5FMarkets%5F2018-2022%5FClimate-Related%5FRisks%5Fand%5FOther%5FFactors.pdf?ref=thecommonplace.press). [↩︎](#fnref12)
13. See Batzer et al., supra note 2; U.S. Gov’t Accountability Off., *Rental Housing: Information on Institutional Investment in Single-Family Homes*, GAO-24-106643 (May 22, 2024), [https://www.gao.gov/products/gao-24-106643](https://www.gao.gov/products/gao-24-106643?ref=thecommonplace.press); Raven Molloy & Rebecca Zarutskie, Business Investor Activity in the Single-Family-Housing Market, Bd. of Governors of the Fed. Rsrv. Sys. FEDS Notes (Dec. 5, 2013), <https://www.federalreserve.gov/econresdata/notes/feds-notes/2013/business-investor-activity-in-the-single-family-housing-market-20131205.html>; Nat’l Ass’n of Realtors, *First-Time Home Buyer Share Falls to Historic Low of 21 Percent, Median Age Rises to 40* (Nov. 4, 2025), [https://www.nar.realtor/press-releases/first-time-home-buyer-share-falls-to-historic-low-of-21-median-age-rises-to-40](https://www.nar.realtor/press-releases/first-time-home-buyer-share-falls-to-historic-low-of-21-median-age-rises-to-40?ref=thecommonplace.press). [↩︎](#fnref13)
14. See Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5; Consumer Fin. Prot. Bureau, supra note 2; Batzer et al., supra note 2; Nat’l Ass’n of Realtors, supra note 13\. [↩︎](#fnref14)
15. See Nat’l Ass’n of Realtors, supra note 13\. The release describes the 2025 edition of NAR’s *Profile of Home Buyers and Sellers*, which covers buyers who purchased homes between July 2024 and June 2025\. [↩︎](#fnref15)
16. See Nat’l Ass’n of Realtors, supra note 13; U.S. Gov’t Accountability Off., supra note 13; Jeff Horwich, Rise in Investor-Owned Single-Family Rentals Prompts Policy Responses, Fed. Rsrv. Bank of Minneapolis (Mar. 27, 2024), [https://www.minneapolisfed.org/article/2024/rise-in-investor-owned-single-family-rentals-prompts-policy-responses](https://www.minneapolisfed.org/article/2024/rise-in-investor-owned-single-family-rentals-prompts-policy-responses?ref=thecommonplace.press). [↩︎](#fnref16)
17. See Nat’l Ass’n of Realtors, supra note 13; CPIAUCSL, supra note 3; LES1252881600Q, supra note 4\. [↩︎](#fnref17)
18. See Joint Ctr. for Hous. Studs. of Harvard Univ., *Housing Unaffordability Soared to New Highs in 2024*, supra note 6\. [↩︎](#fnref18)
19. See id. [↩︎](#fnref19)
20. See id.; Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5, at 29–31\. [↩︎](#fnref20)
21. See Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5, at 22–31\. [↩︎](#fnref21)
22. See Joint Ctr. for Hous. Studs. of Harvard Univ., *New Report Finds Cooling Rental Markets, Affordability Crisis Deepens for Renters* (Mar. 12, 2026), [https://www.jchs.harvard.edu/press-releases/new-report-finds-cooling-rental-markets-affordability-crisis-deepens-renters](https://www.jchs.harvard.edu/press-releases/new-report-finds-cooling-rental-markets-affordability-crisis-deepens-renters?ref=thecommonplace.press); Joint Ctr. for Hous. Studs. of Harvard Univ., *Six Takeaways from America’s Rental Housing 2026* (Mar. 12, 2026), [https://www.jchs.harvard.edu/blog/six-takeaways-americas-rental-housing-2026](https://www.jchs.harvard.edu/blog/six-takeaways-americas-rental-housing-2026?ref=thecommonplace.press). [↩︎](#fnref22)
23. See Joint Ctr. for Hous. Studs. of Harvard Univ., *New Report Finds Cooling Rental Markets*, supra note 22; Joint Ctr. for Hous. Studs. of Harvard Univ., *Six Takeaways*, supra note 22\. [↩︎](#fnref23)
24. See Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5, at 29–31; Joint Ctr. for Hous. Studs. of Harvard Univ., *Six Takeaways*, supra note 22\. [↩︎](#fnref24)
25. See Ge, Johnson & Tzur-Ilan, supra note 7\. [↩︎](#fnref25)
26. See U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022*, supra note 12; U.S. Dep’t of the Treasury, *Homeowners Insurance Costs Rising, Availability Declining as Climate-Related Events Take Their Toll* (Jan. 16, 2025), [https://home.treasury.gov/news/press-releases/jy2791](https://home.treasury.gov/news/press-releases/jy2791?ref=thecommonplace.press). [↩︎](#fnref26)
27. See Ge, Johnson & Tzur-Ilan, supra note 7; Shan Ge, Stephanie Johnson & Nitzan Tzur-Ilan, *Climate Risk, Insurance Premiums, and the Effects on Mortgage and Credit Outcomes*, Fed. Rsrv. Bank of Dallas Working Paper No. 2505 (Jan. 2025), [https://www.dallasfed.org/\~/media/documents/research/papers/2025/wp2505.pdf](https://www.dallasfed.org/~/media/documents/research/papers/2025/wp2505.pdf?ref=thecommonplace.press); U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022*, supra note 12; Daniel McCue, *Rising Costs of Homeownership Are a Growing Burden*, Joint Ctr. for Hous. Studs. of Harvard Univ. (2025), [https://www.jchs.harvard.edu/research-areas/research-briefs/rising-costs-homeownership-are-growing-burden](https://www.jchs.harvard.edu/research-areas/research-briefs/rising-costs-homeownership-are-growing-burden?ref=thecommonplace.press). [↩︎](#fnref27)
28. See CUSR0000SEHF01, supra note 6; CUSR0000SAF11, supra note 6; KFF, supra note 6; McCue, *Rising Costs of Homeownership*, supra note 27\. [↩︎](#fnref28)
29. See KFF, supra note 6\. [↩︎](#fnref29)
30. See KFF, supra note 6; TDSP, supra note 6; CUSR0000SEHF01, supra note 6; CUSR0000SAF11, supra note 6\. [↩︎](#fnref30)
31. See LES1252881600Q, supra note 4; Kyle Fee, *Dollars and Cents: Real Hourly Wage Growth Across the Lower Half of the Wage Distribution*, Fed. Rsrv. Bank of Cleveland (Feb. 18, 2026), [https://www.clevelandfed.org/publications/cd-reports/2026/20260218-real-hourly-wage-growth-across-lower-half-of-wage-distribution](https://www.clevelandfed.org/publications/cd-reports/2026/20260218-real-hourly-wage-growth-across-lower-half-of-wage-distribution?ref=thecommonplace.press); Wage Growth Tracker, Fed. Rsrv. Bank of Atlanta, [https://www.atlantafed.org/research-and-data/data/wage-growth-tracker](https://www.atlantafed.org/research-and-data/data/wage-growth-tracker?ref=thecommonplace.press); TDSP, supra note 6\. [↩︎](#fnref31)
32. See Consumer Fin. Prot. Bureau, supra note 2; Batzer et al., supra note 2\. [↩︎](#fnref32)
33. See Nat’l Ass’n of Realtors, supra note 13; Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5; LES1252881600Q, supra note 4\. [↩︎](#fnref33)
34. See Joint Ctr. for Hous. Studs. of Harvard Univ., *New Report Finds Cooling Rental Markets*, supra note 22; CUSR0000SEHF01, supra note 6\. [↩︎](#fnref34)
35. See Consumer Fin. Prot. Bureau, supra note 2; Batzer et al., supra note 2; Ge, Johnson & Tzur-Ilan, supra note 7; KFF, supra note 6; LES1252881500Q, supra note 3\. [↩︎](#fnref35)
36. See U.S. Bureau of Lab. Stat., *Consumer Price Index*, supra note 1; CPIAUCSL, supra note 3\. [↩︎](#fnref36)
37. See U.S. Bureau of Lab. Stat., *Consumer Price Index*, supra note 1; Consumer Fin. Prot. Bureau, supra note 2; U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022*, supra note 12\. [↩︎](#fnref37)
38. See Fed. Hous. Fin. Agency, *FHFA House Price Index Frequently Asked Questions* (Nov. 25, 2025), [https://www.fhfa.gov/faqs/hpi](https://www.fhfa.gov/faqs/hpi?ref=thecommonplace.press); Fed. Hous. Fin. Agency, *FHFA House Price Index*, [https://www.fhfa.gov/data/hpi](https://www.fhfa.gov/data/hpi?ref=thecommonplace.press). [↩︎](#fnref38)
39. See Ina Hajdini, Adam Shapiro, A. Lee Smith & Daniel Villar, *Inflation Since the Pandemic: Lessons and Challenges*, Bd. of Governors of the Fed. Rsrv. Sys., Finance and Economics Discussion Series No. 2025-070 (2025), <https://www.federalreserve.gov/econres/feds/files/2025070pap.pdf>; Olivier J. Blanchard & Ben S. Bernanke, *What Caused the U.S. Pandemic-Era Inflation?* Nat’l Bureau of Econ. Rsch. Working Paper No. 31417 (2023), [https://www.nber.org/papers/w31417](https://www.nber.org/papers/w31417?ref=thecommonplace.press); Philippe Andrade, Falk Bräuning, José L. Fillat & Gustavo Joaquim, Is Post-Pandemic Wage Growth Fueling Inflation?, Fed. Rsrv. Bank of Boston Current Policy Perspectives No. 24-1 (Jan. 16, 2024), [https://www.bostonfed.org/publications/current-policy-perspectives/2024/is-post-pandemic-wage-growth-fueling-inflation.aspx](https://www.bostonfed.org/publications/current-policy-perspectives/2024/is-post-pandemic-wage-growth-fueling-inflation.aspx?ref=thecommonplace.press); Consumer Fin. Prot. Bureau, supra note 2\. [↩︎](#fnref39)
40. See Consumer Fin. Prot. Bureau, supra note 2; Batzer et al., supra note 2; Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5\. [↩︎](#fnref40)
41. See Consumer Fin. Prot. Bureau, supra note 2; Batzer et al., supra note 2; Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5\. [↩︎](#fnref41)
42. See Consumer Fin. Prot. Bureau, supra note 2; Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5\. [↩︎](#fnref42)
43. See Consumer Fin. Prot. Bureau, supra note 2; Batzer et al., supra note 2; LES1252881500Q, supra note 3\. [↩︎](#fnref43)
44. See Sarah B. Reed, One Hundred Years of Price Change: The Consumer Price Index and the American Inflation Experience, *Monthly Lab. Rev.*, Apr. 2014, [https://www.bls.gov/opub/mlr/2014/article/one-hundred-years-of-price-change-the-consumer-price-index-and-the-american-inflation-experience.htm](https://www.bls.gov/opub/mlr/2014/article/one-hundred-years-of-price-change-the-consumer-price-index-and-the-american-inflation-experience.htm?ref=thecommonplace.press). [↩︎](#fnref44)
45. See Michael Bryan, *The Great Inflation*, Fed. Rsrv. Hist., [https://www.federalreservehistory.org/essays/great-inflation](https://www.federalreservehistory.org/essays/great-inflation?ref=thecommonplace.press); Tim Sablik, *Recession of 1981–82*, Fed. Rsrv. Hist., [https://www.federalreservehistory.org/essays/recession-of-1981-82](https://www.federalreservehistory.org/essays/recession-of-1981-82?ref=thecommonplace.press); Freddie Mac, Primary Mortgage Market Survey, [https://www.freddiemac.com/pmms](https://www.freddiemac.com/pmms?ref=thecommonplace.press). [↩︎](#fnref45)
46. See *The Great Recession and Its Aftermath*, Fed. Rsrv. Hist., [https://www.federalreservehistory.org/essays/great-recession-and-its-aftermath](https://www.federalreservehistory.org/essays/great-recession-and-its-aftermath?ref=thecommonplace.press). [↩︎](#fnref46)
47. See Reed, supra note 44; Bryan, supra note 45; Sablik, supra note 45; *The Great Recession and Its Aftermath*, supra note 46\. [↩︎](#fnref47)
48. See Alan Greenspan, Chairman, Bd. of Governors of the Fed. Rsrv. Sys., *The American Economy in a World Context* (May 6, 1999), <https://www.federalreserve.gov/boarddocs/speeches/1999/19990506.htm>; Econ. Pol’y Inst., *Wage Stagnation in Nine Charts* (Jan. 6, 2015), [https://www.epi.org/publication/charting-wage-stagnation/](https://www.epi.org/publication/charting-wage-stagnation/?ref=thecommonplace.press); U.S. Bureau of Lab. Stat., *Productivity and Costs: First Quarter 2026, Revised* (June 4, 2026), [https://www.bls.gov/news.release/pdf/prod2.pdf](https://www.bls.gov/news.release/pdf/prod2.pdf?ref=thecommonplace.press). [↩︎](#fnref48)
49. See Greenspan, supra note 48; U.S. Bureau of Lab. Stat., *Productivity and Costs*, supra note 48; John Fernald & Huiyu Li, *The Recent Rise and Fall of Rapid Productivity Growth*, Fed. Rsrv. Bank of S.F. Econ. Letter No. 2023-29 (Nov. 27, 2023), [https://www.frbsf.org/research-and-insights/publications/economic-letter/2023/11/recent-rise-and-fall-of-rapid-productivity-growth/](https://www.frbsf.org/research-and-insights/publications/economic-letter/2023/11/recent-rise-and-fall-of-rapid-productivity-growth/?ref=thecommonplace.press). [↩︎](#fnref49)
50. See *The Great Recession and Its Aftermath*, supra note 46\. [↩︎](#fnref50)
51. See U.S. Dep’t of Hous. & Urb. Dev., *State and Local Best Practices for Home Construction* (2026), [https://www.hud.gov/hud-partners/state-and-local-best-practices](https://www.hud.gov/hud-partners/state-and-local-best-practices?ref=thecommonplace.press); Joseph Gyourko & Raven Molloy, *Regulation and Housing Supply*, Nat’l Bureau of Econ. Rsch. Working Paper No. 20536 (2014), [https://www.nber.org/papers/w20536](https://www.nber.org/papers/w20536?ref=thecommonplace.press); Edward L. Glaeser & Joseph Gyourko, *The Impact of Zoning on Housing Affordability*, Nat’l Bureau of Econ. Rsch. Working Paper No. 8835 (2002), [https://www.nber.org/papers/w8835](https://www.nber.org/papers/w8835?ref=thecommonplace.press). [↩︎](#fnref51)
52. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Gyourko & Molloy, supra note 51; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387–97 (1926); Hunter v. City of Pittsburgh, 207 U.S. 161, 178–79 (1907). [↩︎](#fnref52)
53. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Gyourko & Molloy, supra note 51; Edward L. Glaeser, Joseph Gyourko & Raven E. Saks, Why Have Housing Prices Gone Up?, 95 *Am. Econ. Rev. Papers & Proc.* 329 (2005), [https://www.aeaweb.org/articles?id=10.1257/000282805774669961](https://www.aeaweb.org/articles?id=10.1257/000282805774669961&ref=thecommonplace.press). [↩︎](#fnref53)
54. See Gyourko & Molloy, supra note 51; Glaeser, Gyourko & Saks, supra note 53; Village of Euclid, 272 U.S. at 387–97; Hunter, 207 U.S. at 178–79\. [↩︎](#fnref54)
55. See Gyourko & Molloy, supra note 51; Hunter, 207 U.S. at 178–79; Village of Euclid, 272 U.S. at 387–97; Joshua Braver & Ilya Somin, The Constitutional Case Against Exclusionary Zoning, 103 *Tex. L. Rev.* 1 (2024), [https://texaslawreview.org/the-constitutional-case-against-exclusionary-zoning/](https://texaslawreview.org/the-constitutional-case-against-exclusionary-zoning/?ref=thecommonplace.press). [↩︎](#fnref55)
56. See Richard Voith & Joseph Gyourko, *Capitalization of Federal Taxes, the Relative Price of Housing, and Urban Form: Density and Sorting Effects*, Zell/Lurie Real Estate Ctr. Working Paper No. 366 (Mar. 12, 2001), [https://realestate.wharton.upenn.edu/wp-content/uploads/2017/03/366.pdf](https://realestate.wharton.upenn.edu/wp-content/uploads/2017/03/366.pdf?ref=thecommonplace.press); Nicola Brackertz, Ashton de Silva & Michael Fotheringham, *Literature Review on the Impact of Demand-Side Housing Subsidies on the Housing Market*, Austl. Hous. & Urb. Rsch. Inst. (Feb. 2015), [https://www.ahuri.edu.au/sites/default/files/migration/documents/RCP102\_Literature-review-on-the-impact-of-demand-side-housing-subsidies-on-the-housing-market.pdf](https://www.ahuri.edu.au/sites/default/files/migration/documents/RCP102%5FLiterature-review-on-the-impact-of-demand-side-housing-subsidies-on-the-housing-market.pdf?ref=thecommonplace.press); Michael Blake, *Housing Finance: Demand vs. Supply-Side Subsidies*, Int’l Growth Ctr. (Sept. 2017), [https://www.theigc.org/sites/default/files/2018/02/Housing-finance-January-2018.pdf](https://www.theigc.org/sites/default/files/2018/02/Housing-finance-January-2018.pdf?ref=thecommonplace.press). [↩︎](#fnref56)
57. See Voith & Gyourko, supra note 56; Brackertz, de Silva & Fotheringham, supra note 56; Blake, supra note 56\. [↩︎](#fnref57)
58. See Voith & Gyourko, supra note 56; Brackertz, de Silva & Fotheringham, supra note 56; Glaeser, Gyourko & Saks, supra note 53\. [↩︎](#fnref58)
59. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Gyourko & Molloy, supra note 51\. [↩︎](#fnref59)
60. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Gyourko & Molloy, supra note 51; Village of Euclid, 272 U.S. at 387–97\. [↩︎](#fnref60)
61. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51\. [↩︎](#fnref61)
62. See Joseph Gyourko, Jonathan Hartley & Jacob Krimmel, *The Local Residential Land Use Regulatory Environment Across U.S. Housing Markets: Evidence from a New Wharton Index*, Nat’l Bureau of Econ. Rsch. Working Paper No. 26573 (2019), [https://www.nber.org/papers/w26573](https://www.nber.org/papers/w26573?ref=thecommonplace.press); Joseph Gyourko & Jacob Krimmel, *The Impact of Local Residential Land Use Restrictions on Land Values Across and Within Single Family Housing Markets*, Nat’l Bureau of Econ. Rsch. Working Paper No. 28993 (2021), [https://www.nber.org/papers/w28993](https://www.nber.org/papers/w28993?ref=thecommonplace.press); Gyourko & Molloy, supra note 51\. [↩︎](#fnref62)
63. See Braver & Somin, supra note 55; Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987); Dolan v. City of Tigard, 512 U.S. 374, 391 (1994); Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604–07, 612 (2013); Sheetz v. County of El Dorado, 601 U.S. 267, 275–77 (2024); Village of Euclid, 272 U.S. at 387–97\. [↩︎](#fnref63)
64. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Braver & Somin, supra note 55\. [↩︎](#fnref64)
65. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Braver & Somin, supra note 55\. [↩︎](#fnref65)
66. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Nollan, 483 U.S. at 837; Dolan, 512 U.S. at 391; Koontz, 570 U.S. at 604–07; Sheetz, 601 U.S. at 275–77\. [↩︎](#fnref66)
67. See Village of Euclid, 272 U.S. at 387–97; Nollan, 483 U.S. at 837; Dolan, 512 U.S. at 391; Koontz, 570 U.S. at 604–07; Sheetz, 601 U.S. at 275–77\. [↩︎](#fnref67)
68. See Hunter, 207 U.S. at 178–79; City of Trenton v. New Jersey, 262 U.S. 182, 187–88 (1923); Jesse J. Richardson, Jr., Meghan Zimmerman Gough & Robert Puentes, *Is Home Rule the Answer? Clarifying the Influence of Dillon’s Rule on Growth Management*, Brookings Inst. (Jan. 2003), [https://www.brookings.edu/wp-content/uploads/2016/06/dillonsrule.pdf](https://www.brookings.edu/wp-content/uploads/2016/06/dillonsrule.pdf?ref=thecommonplace.press). [↩︎](#fnref68)
69. See Hunter, 207 U.S. at 178–79; City of Trenton, 262 U.S. at 187–88; Richardson, Gough & Puentes, supra note 68\. [↩︎](#fnref69)
70. See John Infranca, The New State Zoning, 64 *B.C. L. Rev.* 1833 (2023), [https://bclawreview.bc.edu/articles/289/files/63a540ca91dcf.pdf](https://bclawreview.bc.edu/articles/289/files/63a540ca91dcf.pdf?ref=thecommonplace.press); Hunter, 207 U.S. at 178–79; City of Trenton, 262 U.S. at 187–88\. [↩︎](#fnref70)
71. See Hunter, 207 U.S. at 178–79; City of Trenton, 262 U.S. at 187–88; Richardson, Gough & Puentes, supra note 68\. [↩︎](#fnref71)
72. See U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022*, supra note 12; Ge, Johnson & Tzur-Ilan, supra note 7; McCue, *Rising Costs of Homeownership*, supra note 27\. [↩︎](#fnref72)
73. See U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022*, supra note 12; Ge, Johnson & Tzur-Ilan, supra note 7; U.S. Gov’t Accountability Off., *Homeowners Insurance: Premiums Generally Tracked Inflation, but Some Areas Had Much Higher Increases*, GAO-26-107867 (Feb. 27, 2026), [https://www.gao.gov/products/gao-26-107867](https://www.gao.gov/products/gao-26-107867?ref=thecommonplace.press). [↩︎](#fnref73)
74. See Nat’l Ass’n of Ins. Comm’rs, *State Insurance Regulation* 1, [https://content.naic.org/sites/default/files/inline-files/topics\_white\_paper\_hist\_ins\_reg.pdf](https://content.naic.org/sites/default/files/inline-files/topics%5Fwhite%5Fpaper%5Fhist%5Fins%5Freg.pdf?ref=thecommonplace.press); Nat’l Ass’n of Ins. Comm’rs, State Insurance Regulators Monitor the Home Insurance Market to Protect Consumers (Dec. 4, 2024), [https://content.naic.org/article/state-insurance-regulators-monitor-home-insurance-market-protect-consumers](https://content.naic.org/article/state-insurance-regulators-monitor-home-insurance-market-protect-consumers?ref=thecommonplace.press); U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022*, supra note 12\. [↩︎](#fnref74)
75. See McCue, *Rising Costs of Homeownership*, supra note 27; Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5\. [↩︎](#fnref75)
76. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51\. [↩︎](#fnref76)
77. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Nollan, 483 U.S. at 837; Dolan, 512 U.S. at 391; Koontz, 570 U.S. at 604–07; Sheetz, 601 U.S. at 275–77\. [↩︎](#fnref77)
78. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Koontz, 570 U.S. at 604–07; Sheetz, 601 U.S. at 275–77\. [↩︎](#fnref78)
79. See Morris M. Kleiner, *Reforming Occupational Licensing Policies*, Hamilton Project Discussion Paper No. 2015-01 (Jan. 2015), [https://www.hamiltonproject.org/publication/policy-proposal/reforming-occupational-licensing-policies/](https://www.hamiltonproject.org/publication/policy-proposal/reforming-occupational-licensing-policies/?ref=thecommonplace.press); Ryan Nunn, *Occupational Licensing and the American Worker*, Hamilton Project (June 21, 2016), [https://www.hamiltonproject.org/publication/paper/occupational-licensing-and-american-workers/](https://www.hamiltonproject.org/publication/paper/occupational-licensing-and-american-workers/?ref=thecommonplace.press); Home Builders Inst., *Fall 2025 Construction Labor Market Report* (2025), [https://hbi.org/wp-content/uploads/2025/10/Fall-2025-Final-Construction-Labor-Market-Report-Update.pdf](https://hbi.org/wp-content/uploads/2025/10/Fall-2025-Final-Construction-Labor-Market-Report-Update.pdf?ref=thecommonplace.press). [↩︎](#fnref79)
80. See Home Builders Inst., supra note 79; Troup Howard, Mengqi Wang & Dayin Zhang, *Cracking Down, Pricing Up: Housing Supply in the Wake of Mass Deportation* (Feb. 16, 2024), [https://papers.ssrn.com/sol3/papers.cfm?abstract\_id=4729511](https://papers.ssrn.com/sol3/papers.cfm?abstract%5Fid=4729511&ref=thecommonplace.press). [↩︎](#fnref80)
81. See Kleiner, supra note 79; Nunn, supra note 79\. [↩︎](#fnref81)
82. See Hajdini et al., supra note 39; CPIAUCSL, supra note 3; Greenspan, supra note 48\. [↩︎](#fnref82)
83. See U.S. Bureau of Lab. Stat., *Productivity and Costs: First Quarter 2026, Revised*, supra note 48; Greenspan, supra note 48; Randall S. Kroszner, Governor, Bd. of Governors of the Fed. Rsrv. Sys., *The Importance of Productivity in Economic Growth and Monetary Policy* (Sept. 27, 2006), <https://www.federalreserve.gov/newsevents/speech/kroszner20060927a.htm>. [↩︎](#fnref83)
84. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Gyourko & Molloy, supra note 51; Braver & Somin, supra note 55\. [↩︎](#fnref84)
85. See Ge, Johnson & Tzur-Ilan, supra note 7; U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022*, supra note 12; McCue, *Rising Costs of Homeownership*, supra note 27\. [↩︎](#fnref85)
86. See Gyourko & Molloy, supra note 51; Glaeser, Gyourko & Saks, supra note 53; Hunter, 207 U.S. at 178–79; Village of Euclid, 272 U.S. at 387–97; Sheetz, 601 U.S. at 275–77\. [↩︎](#fnref86)
87. See Gyourko & Molloy, supra note 51; Glaeser, Gyourko & Saks, supra note 53; Consumer Fin. Prot. Bureau, supra note 2; Ge, Johnson & Tzur-Ilan, supra note 7; Sheetz, 601 U.S. at 275–77\. [↩︎](#fnref87)
88. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Gyourko & Molloy, supra note 51; Hunter, 207 U.S. at 178–79; Braver & Somin, supra note 55; Sheetz, 601 U.S. at 275–77\. [↩︎](#fnref88)
89. See CPIAUCSL, supra note 3; LES1252881500Q, supra note 3; LES1252881600Q, supra note 4\. [↩︎](#fnref89)
90. See Joint Ctr. for Hous. Studs. of Harvard Univ., *The State of the Nation’s Housing 2026*, supra note 5; Consumer Fin. Prot. Bureau, supra note 2; Ge, Johnson & Tzur-Ilan, supra note 7; U.S. Dep’t of the Treasury, *Analyses of U.S. Homeowners Insurance Markets, 2018–2022*, supra note 12\. [↩︎](#fnref90)
91. See U.S. Dep’t of Hous. & Urb. Dev., supra note 51; Gyourko & Molloy, supra note 51; Hunter, 207 U.S. at 178–79; Village of Euclid, 272 U.S. at 387–97; Sheetz, 601 U.S. at 275–77; Braver & Somin, supra note 55\. [↩︎](#fnref91)
### The Artificial-Intelligence Bill Comes Due: Law-Firm Spending and the Work Lawyers Must Defend
URL: https://www.thecommonplace.press/artificial-intelligence-bill-comes-due-law-firm-spending/
Last updated: 2026-06-22T13:01:06.000Z
*The legal question is whether lawyers can command the systems that now help produce the work they must verify, price, and defend.[\[1\]](#fn1)*

## Introduction

Lawyers who practiced through online research, email, electronic filing, remote proceedings, and discovery platforms have earned their skepticism toward legal-technology forecasts.[\[2\]](#fn2) Those tools became routine parts of practice, altering speed, volume, location, and convenience while leaving the lawyer’s duties of competence, confidentiality, candor, supervision, and reasonable fees in place.[\[3\]](#fn3)

Electronic discovery remains an important exception because it has changed litigation procedures, evidence management, vendor dependence, staffing, sanctions, and judicial supervision.[\[4\]](#fn4) It supplies the control case for this article because electronically stored information forced lawyers and courts to build a rule-bound system for preserving, collecting, reviewing, producing, and defending digital evidence.[\[5\]](#fn5)

Artificial intelligence has yet to produce an equivalent transformation of federal litigation procedure, although it now reaches the legal-production system through which firms research, draft, summarize, review, supervise, price, and deliver work.[\[6\]](#fn6) The legal question has shifted from whether a machine may assist a lawyer to whether the lawyer can preserve professional control over the work that the machine helps produce.[\[7\]](#fn7)

That question makes the current spending cycle a professional responsibility and client value problem.[\[8\]](#fn8) Artificial intelligence can make good lawyers even more valuable when they use it to reduce waste, improve source discipline, sharpen budgets, and free up more time for judgment.[\[9\]](#fn9) The same tools can let weak lawyers hide laziness behind fluent output, producing work that appears finished before anyone has tested whether it is true.[\[10\]](#fn10)

## Electronic discovery as the control case

Electronic discovery became the last major court-rule-bound legal-technology shift because electronically stored information changed the legal treatment of evidence.[\[11\]](#fn11) A litigation file increasingly meant more than correspondence folders, banker’s boxes, and paper records, as clients held relevant material in email servers, backup tapes, metadata fields, shared drives, mobile devices, databases, and retention systems.[\[12\]](#fn12)

The Federal Rules of Civil Procedure eventually reflected that practical change.[\[13\]](#fn13) Rule 34 now allows requests for documents or electronically stored information, including data compilations stored in any medium from which information can be obtained, and the 2006 Advisory Committee notes state that electronically stored information stands on equal footing with paper documents.[\[14\]](#fn14)

Rule 37(e) gives the shift its clearest procedural form.[\[15\]](#fn15) The rule applies when electronically stored information that should have been preserved in anticipation of or in the conduct of litigation is lost because reasonable steps were not taken and the information cannot be restored or replaced through additional discovery.[\[16\]](#fn16) It then separates curative measures based on prejudice from the most severe sanctions, which require an intent to deprive another party of the information’s use in litigation.[\[17\]](#fn17)

The 2015 Advisory Committee notes explain why the rule mattered.[\[18\]](#fn18) Growing volumes of electronically stored information had produced serious preservation problems, divergent sanctions standards, and excessive preservation costs, while courts needed a framework that recognized the common-law preservation duty and the practical impossibility of perfect preservation.[\[19\]](#fn19)

Electronic discovery supplies a legal comparator because it shows how technology becomes part of lawyering when courts, clients, rules, vendors, and professional duties converge around a workflow.[\[20\]](#fn20) Lawyers had to understand client information systems, negotiate production requests, manage privilege review at scale, supervise vendors and review teams, defend search methods, and explain preservation decisions within a rule-bound sanctions structure.[\[21\]](#fn21)

That history provides the present cycle with a legal measure.[\[22\]](#fn22) Technology becomes important to lawyering when it changes the work lawyers must understand, the processes they must supervise, the costs clients must bear, and the account lawyers must give to courts, clients, and opposing parties.[\[23\]](#fn23)

## From software spending to legal infrastructure

The present spending record matters because firms are treating technology as part of the operating system for legal work.[\[24\]](#fn24) The 2026 Thomson Reuters Institute and Georgetown Law report describes a sharp increase in law-firm spending on technology and knowledge-management tools, with average spending growth of 9.7 percent and 10.5 percent, respectively.[\[25\]](#fn25) The same report distinguishes generative artificial intelligence from earlier tools because it can draft briefs, analyze contracts, and synthesize case law in ways that may alter how legal work is done.[\[26\]](#fn26)

Knowledge-management spending deserves special attention because it concerns a law firm’s institutional memory.[\[27\]](#fn27) A firm that invests heavily in knowledge systems is investing in how prior research, deal documents, litigation work, matter histories, and lawyer expertise can be found and reused, which places the expenditure closer to the machinery of legal production than to a faster inbox or better calendar.[\[28\]](#fn28)

Kirkland & Ellis supplies the public flagship example because Reuters reported in May 2026 that the firm planned to spend $500 million over three to four years developing a custom artificial-intelligence platform, beginning with $100 million in 2026.[\[29\]](#fn29) The report also stated that the platform would draw on information from 250 Kirkland lawyers and involve more than 180 technology professionals inside and outside the firm.[\[30\]](#fn30)

A half-billion-dollar internal platform is capital allocation inside an elite legal institution.[\[31\]](#fn31)

Kirkland remains a poor proxy for the median firm, but the size and character of the investment show how far the issue has moved from individual lawyer convenience.[\[32\]](#fn32) At least some leading firms now view artificial intelligence as infrastructure tied to lawyer work, firm memory, and client service.[\[33\]](#fn33)

Vendor growth supplies a related, more limited signal because funding rounds, valuations, integrations, and user counts indicate that investors and platform companies expect legal workflow to become a valuable market, although those measures do not establish accuracy, pricing reform, client savings, or improved professional judgment.[\[34\]](#fn34) The public record is strongest when those signals are read together, with firm spending showing institutional commitment, vendor capitalization showing market expectation, and client adoption showing pressure from the buyer side.[\[35\]](#fn35)

## Why artificial intelligence is broader

Breadth is the stronger claim because the American Bar Association Formal Opinion 512 begins with familiar uses of artificial intelligence in electronic discovery and contract analytics, then states that generative artificial intelligence tools may assist with legal research, contract review, due diligence, document review, regulatory compliance, and drafting legal documents.[\[36\]](#fn36)

That range matters because the relevant tasks are those in which lawyers convert law, facts, and client materials into work that another person may rely on.[\[37\]](#fn37) Earlier tools altered discrete stages of practice, as online research made sources easier to retrieve, electronic filing moved papers through court systems, and electronic discovery required litigators to manage digital evidence under preservation and production rules.[\[38\]](#fn38) Generative artificial intelligence reaches closer to the lawyer’s own work product because it can help produce analysis, summaries, comparisons, drafts, and recommendations that may later be communicated, filed, signed, supervised, or billed.[\[39\]](#fn39)

The professional problem travels across practice groups because the duties attach to the lawyer’s reliance on the output rather than to the subject matter of the task.[\[40\]](#fn40) A lawyer who uses a tool to compare deal documents, summarize agency materials, or draft a litigation research section must still decide whether the output is reliable for that assignment.[\[41\]](#fn41) That decision requires the lawyer to identify the supporting sources, account for omissions, and determine the professional consequence that follows from using the work.[\[42\]](#fn42)

Knowledge management extends the problem because a firmwide artificial-intelligence system can make prior work, similar matters, client-document summaries, research memoranda, and internal forms available across the firm.[\[43\]](#fn43) Careful governance can reduce duplication and improve consistency by allowing lawyers to locate the firm’s own work before rebuilding a research path, diligence process, or draft from the beginning.[\[44\]](#fn44) Poor governance can spread stale law, recycle weak drafting, obscure the source and limits of prior work, expose client information, and give junior lawyers confidence in material they lack enough context to test.[\[45\]](#fn45)

The point is broader than tool adoption because artificial intelligence now operates near the place where information becomes legal work.[\[46\]](#fn46) When a system helps produce work that a lawyer may communicate, file, supervise, charge for, or defend, the governing question becomes professional responsibility.[\[47\]](#fn47)

## Professional responsibility supplies the rule

Professional responsibility gives the current cycle its legal center because the lawyer’s duties attach when the lawyer uses, communicates, supervises, files, or bills work shaped by artificial intelligence.[\[48\]](#fn48) Formal Opinion 512 treats that use as governed by familiar duties of competence, client protection, communication, supervision, candor, meritorious advocacy, and reasonable fees.[\[49\]](#fn49)

That approach is institutionally sound because the legal system can apply settled professional duties to concrete uses of a tool without first judging artificial intelligence in the abstract.[\[50\]](#fn50) When the technology contributes to research, advice, a filing, or a bill, the lawyer remains answerable for the professional act that follows and for the judgment required to defend it.[\[51\]](#fn51)

Competence now requires a working understanding of the particular tool being used, even though Formal Opinion 512 does not require lawyers to become generative-artificial-intelligence experts.[\[52\]](#fn52) The opinion requires sufficient understanding to assess the tool’s capabilities and limitations, including its benefits, risks, and potential to produce inaccurate, incomplete, unreliable, or fabricated output.[\[53\]](#fn53)

Formal Opinion 512 also states the nondelegation principle directly, allowing generative artificial intelligence to supply a draft or analytical starting point while preserving the lawyer’s responsibility for work that requires professional judgment.[\[54\]](#fn54) Supervision gives that rule institutional form, since managerial lawyers must adopt effective compliance measures and supervisory lawyers must make reasonable efforts to ensure proper use by subordinate lawyers and nonlawyers.[\[55\]](#fn55)

Artificial intelligence may change the means by which legal work is produced, although it does not change who must answer for the work.[\[56\]](#fn56) The lawyer’s duties attach when the lawyer uses the tool, reviews the output, communicates the answer, signs the filing, bills the client, or defends the work after a challenge.[\[57\]](#fn57)

## Verification is the first application

Verification first tests lawyer judgment because artificial intelligence can make weak work appear complete, giving a research section or motion draft the surface order of legal analysis before the authorities have been checked.[\[58\]](#fn58) A fluent passage may contain invented authority, distorted quotations, a false procedural posture, or a conclusion that the cited source cannot support, and the surrounding polish can make those defects harder to detect.[\[59\]](#fn59)

The risk has empirical support because Formal Opinion 512 cites research finding that leading legal-research generative artificial intelligence systems hallucinated between 17 percent and 33 percent of the time in the tested study, which the opinion uses to support competence and verification duties.[\[60\]](#fn60)

*Mata v. Avianca* remains the canonical district-court warning because Judge P. Kevin Castel, a Senior Judge of the United States District Court for the Southern District of New York, distinguished permissible assistance from professional abdication.[\[61\]](#fn61) He acknowledged that lawyers may use reliable artificial-intelligence tools, yet sanctioned attorneys who submitted nonexistent opinions with false quotations and citations, then continued to defend those materials after the court questioned whether they existed.[\[62\]](#fn62)

*Mata* matters because the lawyers presented false legal material before a federal court without checking it with ordinary legal sources, and their failure to correct the defect after warning signs appeared turned a research failure into a candor problem.[\[63\]](#fn63)

The Ninth Circuit’s 2026 order in *LNU v. Blanche* strengthens the point by placing the violation at the professional act of signing and filing.[\[64\]](#fn64) The panel imposed sanctions after briefs contained nonexistent cases, misattributed quotations, and serious misrepresentations of actual authorities, while explaining that the misconduct lay in filing false work rather than in the earlier use of generative artificial intelligence.[\[65\]](#fn65)

Existing duties already reach that conduct because courts can address false authority through ordinary rules of candor, signature responsibility, and sanctions authority.[\[66\]](#fn66) A lawyer violates those obligations by filing nonexistent cases, quoting language an opinion does not contain, or attributing an unsupported proposition to a real decision, regardless of whether artificial intelligence explains how the error entered the draft.[\[67\]](#fn67)

New York’s statewide Part 161 follows the same premise from the rulemaking side.[\[68\]](#fn68) The rule allows the use of artificial intelligence in preparing court papers when existing duties are satisfied, while its model provision still requires careful review and independent assurance that the paper contains no fabricated or fictitious legal material.[\[69\]](#fn69)

Disclosure rules may differ by court, but the verification duty does not.[\[70\]](#fn70) A court may require disclosure in a particular setting, and another court may rely solely on signature rules and candor duties, yet the lawyer must verify the work the lawyer files.[\[71\]](#fn71)

## Who receives the value of efficiency?

When artificial intelligence reduces the time required for research, review, drafting, diligence, or billing analysis, the gain must appear somewhere in the relationship between firm and client, and the resulting dispute is both ethical and commercial because candor, reasonable fees, and client trust all depend on whether the firm can explain where the efficiency went.[\[72\]](#fn72)

The Thomson Reuters and Georgetown report provides a market context, as firms are buying tools that promise faster work while much of the legal market still sells lawyer time.[\[73\]](#fn73) The report states that 90 percent of legal dollars still flow through standard hourly arrangements, as clients scrutinize line items and compare outside-counsel bills with efficiencies appearing in their own legal departments.[\[74\]](#fn74)

Formal Opinion 512 supplies the ethical rule for that pricing pressure by allowing a lawyer to charge for the time actually spent using and reviewing generative-artificial-intelligence work while barring charges for time never spent or for time made necessary by the lawyer’s own inexperience with a tool the lawyer expects to use regularly.[\[75\]](#fn75)

That rule preserves profit tied to defensible value rather than recorded fiction.[\[76\]](#fn76) A client who buys time may be charged only for time worked, while a client who buys a fixed result may pay a reasonable fee measured by the agreement, the work required, the value delivered, and the professional responsibility the firm assumes.[\[77\]](#fn77)

Client pressure gives the issue an institutional form because the Association of Corporate Counsel and Everlaw reported in October 2025 that 52 percent of surveyed in-house lawyers actively used generative artificial intelligence, more than double the 23 percent reported in 2024.[\[78\]](#fn78) Many respondents also expected to rely less on law firms and handle more work internally.[\[79\]](#fn79)

Those survey results are best read as evidence of market pressure because expectations alone do not alter engagement letters and adoption numbers do not establish durable savings.[\[80\]](#fn80) The data still show why firms cannot treat artificial-intelligence use as a purely internal technology choice, since clients are beginning to ask whether efficiency appears in price, budget discipline, turnaround time, or improved work product.[\[81\]](#fn81)

Used well, these tools can reduce waste, improve consistency, and allow lawyers to spend more time on judgment rather than retrieval, formatting, and first-pass synthesis.[\[82\]](#fn82) The lawyer who commands the tool may deliver better work for better value, while the lawyer who defers to the tool may deliver fluent error at lower visible cost and higher professional risk.[\[83\]](#fn83)

Governance connects the fee question to the client-value claim by giving a firm a way to preserve professional control over work produced through human and machine processes together.[\[84\]](#fn84) A firm needs rules that identify approved tools, protect client information, require verification, assign supervision, address billing practices, and account for court-specific disclosure obligations when they apply.[\[85\]](#fn85)

## The narrower claim survives the counterargument

The strongest counterargument is that artificial intelligence may follow the familiar path of legal technology, moving from forecasted disruption into ordinary practice after lawyers, clients, and courts absorb its useful functions.[\[86\]](#fn86) Electronic discovery remains the harder comparator on procedure because it produced a rule-based architecture for preservation, production, sanctions, proportionality, vendor management, and litigation support that artificial intelligence has yet to produce for ordinary litigation.[\[87\]](#fn87)

Reliability evidence and market evidence both counsel restraint.[\[88\]](#fn88) Formal Opinion 512 cites hallucination rates significant enough to require verification discipline, while Kirkland’s reported $500 million investment reflects the frontier rather than the median firm.[\[89\]](#fn89) Many regional firms, small litigation shops, government offices, and solo practices lack the capital, technical staff, data discipline, training capacity, and client base needed to build or govern comparable systems.[\[90\]](#fn90) Professional risk is hardest to control where governance capacity is weakest.[\[91\]](#fn91)

Those objections narrow the thesis without defeating it.[\[92\]](#fn92) Artificial intelligence has yet to displace electronic discovery as the leading example of technology remaking court-governed litigation practice, while its present claim rests on reaching more of the ordinary work lawyers perform before a court ever sees the result.[\[93\]](#fn93)

## Technology spending and the law of lawyering

Law-firm technology spending becomes legally significant once it reaches the processes by which lawyers produce client work, test its accuracy, supervise its preparation, price it, and deliver it.[\[94\]](#fn94) The present cycle has reached that point because a firm’s ownership of an artificial-intelligence tool or pilot program means little unless the firm can account for the work the tool helps produce.[\[95\]](#fn95)

That professional control has practical content because a firm must govern the tool before client information enters it, supervise the work while the tool is being used, and decide how the resulting work may be billed, disclosed, filed, or sent.[\[96\]](#fn96) These are questions of competence, confidentiality, candor, supervision, and fees, even when they arise through software procurement or internal technology policy.[\[97\]](#fn97)

Electronic discovery taught lawyers that technology becomes part of lawyering when legal duties, client expectations, vendor systems, court supervision, and cost converge around a workflow.[\[98\]](#fn98) The present cycle now brings that lesson into the firm’s ordinary production of legal work, where the decisive question is whether the firm can command the system rather than merely own it.[\[99\]](#fn99)

Artificial intelligence can improve legal service only when it remains subordinate to the duties that define lawyering.[\[100\]](#fn100) The client hires a lawyer for judgment, and that judgment is measured by work the lawyer is willing to verify, supervise, price, sign, and defend.[\[101\]](#fn101)

## Notes

---

1. *See* ABA Comm. on Ethics & Prof'l Responsibility, [Formal Op. 512, *Generative Artificial Intelligence Tools*](https://www.americanbar.org/content/dam/aba/administrative/professional%5Fresponsibility/ethics-opinions/aba-formal-opinion-512.pdf?ref=thecommonplace.press) 1–6, 12–15 (2024); W. Bradley Wendel, [*The Promise and Limitations of Artificial Intelligence in the Practice of Law*](https://digitalcommons.law.ou.edu/olr/vol72/iss1/3/?ref=thecommonplace.press), 72 Okla. L. Rev. 21, 26–27, 40–43 (2019); [LNU v. Blanche](https://law.justia.com/cases/federal/appellate-courts/ca9/24-4790/24-4790-2026-06-03.html?ref=thecommonplace.press), No. 24-4790, slip op. at 2–5, 14–18 (9th Cir. June 3, 2026); Fed. R. Civ. P. 11(b)–(c). [↩︎](#fnref1)
2. *See* U.S. Courts, [Electronic Filing (CM/ECF)](https://www.uscourts.gov/court-records/electronic-filing-cm-ecf?ref=thecommonplace.press) (last visited June 18, 2026); PACER, [Manage My Account Login](https://pacer.uscourts.gov/my-account-billing/manage-my-account-login?ref=thecommonplace.press) (last visited June 18, 2026); U.S. Courts, [Remote Public Access to Proceedings](https://www.uscourts.gov/court-records/access-court-proceedings/remote-public-access-proceedings?ref=thecommonplace.press) (last visited June 18, 2026); Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, [*2026 Report on the State of the US Legal Market*](https://www.thomsonreuters.com/en-us/posts/wp-content/uploads/sites/20/2026/01/2026-State-of-the-US-Legal-Market.pdf?ref=thecommonplace.press) 11–12 (2026); Model Rules of Prof'l Conduct r. 1.1 cmt. 8 (Am. Bar Ass'n 2024). [↩︎](#fnref2)
3. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–6, 10–15\. [↩︎](#fnref3)
4. *See* Fed. R. Civ. P. 34(a)(1)(A), (b)(1)(C), (b)(2)(D)–(E), 37(e); Fed. R. Civ. P. 34 advisory committee's note to 2006 amendment; Fed. R. Civ. P. 37 advisory committee's note to 2015 amendment; Ronald J. Hedges, Barbara J. Rothstein & Elizabeth C. Wiggins, [*Managing Discovery of Electronic Information*](https://www.fjc.gov/content/managing-discovery-electronic-information-third-edition?ref=thecommonplace.press) 1–7, 31–35, 40–43 (Fed. Jud. Ctr. 3d ed. 2017, 2d printing 2019); The Sedona Conference, [*The Sedona Principles, Third Edition*](https://thesedonaconference.org/publication/The%5FSedona%5FPrinciples?ref=thecommonplace.press), 19 Sedona Conf. J. 1, principles 1–5 (2018); EDRM, [EDRM Model](https://edrm.net/wiki/edrm-model/?ref=thecommonplace.press) (last visited June 18, 2026). [↩︎](#fnref4)
5. *See* sources cited *supra* note 4; Hon. Shira A. Scheindlin & Jeffrey Rabkin, *Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?*, 41 B.C. L. Rev. 327, 331–49 (2000); Gregory P. Joseph, *Rule 37(e): The New Law of Electronic Spoliation*, 99 Judicature No. 3 (2015). [↩︎](#fnref5)
6. *See* Formal Op. 512, *supra* note 1, at 1–6, 12–15; Ryan McCarl, [*The Limits of Law and AI*](https://scholarship.law.uc.edu/uclr/vol90/iss3/5/?ref=thecommonplace.press), 90 U. Cin. L. Rev. 923, 923–49 (2022); Sayash Kapoor, Peter Henderson & Arvind Narayanan, [*Promises and Pitfalls of Artificial Intelligence for Legal Applications*](https://journalcrcl.org/crcl/article/view/62?ref=thecommonplace.press), 2 J. Cross-Disciplinary Rsch. Computational L. (2024); 22 N.Y.C.R.R. pt. 161, §§ 161.1–161.4 & app. A (effective June 1, 2026). [↩︎](#fnref6)
7. *See* Formal Op. 512, *supra* note 1, at 1–6, 12–15; Wendel, *supra* note 1, at 26–27, 40–43; McCarl, *supra* note 6, at 923–49; Kapoor, Henderson & Narayanan, *supra* note 6\. [↩︎](#fnref7)
8. *See* Formal Op. 512, *supra* note 1, at 1–6, 10–15; [Mata v. Avianca, Inc.](https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1%3A2022cv01461/575368/54/?ref=thecommonplace.press), 678 F. Supp. 3d 443, 448–49, 461–66 (S.D.N.Y. 2023); *LNU*, slip op. at 2–5, 14–25; Varun Magesh et al., [*Hallucination-Free? Assessing the Reliability of Leading AI Legal Research Tools*](https://onlinelibrary.wiley.com/doi/10.1111/jels.12413?ref=thecommonplace.press), 22 J. Empirical Legal Stud. 216, 216–42 (2025); Fed. R. Civ. P. 11(b)–(c). [↩︎](#fnref8)
9. *See* Formal Op. 512, *supra* note 1, at 3–5, 10–12; Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11–12\. [↩︎](#fnref9)
10. *See* *Mata*, 678 F. Supp. 3d at 448–49, 461–66; *LNU*, slip op. at 2–5, 14–25; Magesh et al., *supra* note 8, at 216–42\. [↩︎](#fnref10)
11. *See* sources cited *supra* notes 4–5\. [↩︎](#fnref11)
12. *See* Fed. R. Civ. P. 34 advisory committee's note to 2006 amendment; Hedges, Rothstein & Wiggins, *supra* note 4, at 1–7, 31–35; Scheindlin & Rabkin, *supra* note 5, at 331–49; EDRM Model, *supra* note 4\. [↩︎](#fnref12)
13. *See* Fed. R. Civ. P. 34(a)(1)(A), (b)(1)(C), (b)(2)(D)–(E); Fed. R. Civ. P. 34 advisory committee's note to 2006 amendment. [↩︎](#fnref13)
14. *See* Fed. R. Civ. P. 34(a)(1)(A), (b)(1)(C), (b)(2)(D)–(E); Fed. R. Civ. P. 34 advisory committee's note to 2006 amendment. [↩︎](#fnref14)
15. *See* Fed. R. Civ. P. 37(e); Fed. R. Civ. P. 37 advisory committee's note to 2015 amendment. [↩︎](#fnref15)
16. *See* Fed. R. Civ. P. 37(e). [↩︎](#fnref16)
17. *See* Fed. R. Civ. P. 37(e)(1)–(2). [↩︎](#fnref17)
18. *See* Fed. R. Civ. P. 37 advisory committee's note to 2015 amendment; Joseph, *supra* note 5\. [↩︎](#fnref18)
19. *See* Fed. R. Civ. P. 37 advisory committee's note to 2015 amendment. [↩︎](#fnref19)
20. *See* Fed. R. Civ. P. 34(a)(1)(A), 37(e); Hedges, Rothstein & Wiggins, *supra* note 4, at 1–7, 31–35, 40–43; The Sedona Conference, *supra* note 4, principles 1–5; EDRM Model, *supra* note 4\. [↩︎](#fnref20)
21. *See* Hedges, Rothstein & Wiggins, *supra* note 4, at 1–7, 31–35, 40–43; The Sedona Conference, *supra* note 4, principles 1–5; EDRM Model, *supra* note 4\. [↩︎](#fnref21)
22. *See* sources cited *supra* notes 4–5, 8\. [↩︎](#fnref22)
23. *See* sources cited *supra* notes 4–5, 8; Fed. R. Civ. P. 11(b)–(c). [↩︎](#fnref23)
24. *See* Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11–12\. [↩︎](#fnref24)
25. *See id.* at 11\. [↩︎](#fnref25)
26. *See id.* [↩︎](#fnref26)
27. *See* Jon Beaumont, [*Knowledge Management: A Systems Case Study from Shearman & Sterling LLP*](https://www.cambridge.org/core/journals/legal-information-management/article/knowledge-management-a-systems-case-study-from-shearman-sterling-llp/6D219DE40734313C1EC2A857D8B688B5?ref=thecommonplace.press), 17 Legal Info. Mgmt. 220, 220–28 (2017); Hélène Russell, [*A Law Firm Librarian's Guide to KM*](https://www.cambridge.org/core/journals/legal-information-management/article/law-firm-librarians-guide-to-km/663396CA262FA282EA5E10FD905423D8?ref=thecommonplace.press), 16 Legal Info. Mgmt. 131, 131–37 (2016); Petter Gottschalk & Vijay K. Khandelwal, [*Knowledge Management Technology in Law Firms: Stages of Growth*](https://www.tandfonline.com/doi/abs/10.1080/1360086042000276780?ref=thecommonplace.press), 18 Int'l Rev. L. Computers & Tech. 375, 375–85 (2004). [↩︎](#fnref27)
28. *See* Beaumont, *supra* note 27, at 220–28; Russell, *supra* note 27, at 131–37; Gottschalk & Khandelwal, *supra* note 27, at 375–85; Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11\. [↩︎](#fnref28)
29. *See* Mike Scarcella, [*Law Firm Kirkland to Spend $500 Million Developing Its Own AI Platform*](https://www.reuters.com/legal/legalindustry/law-firm-kirkland-spend-500-million-developing-its-own-ai-platform-2026-05-28/?ref=thecommonplace.press), Reuters (May 28, 2026). [↩︎](#fnref29)
30. *See id.* [↩︎](#fnref30)
31. *See id.* [↩︎](#fnref31)
32. *See id.*; Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11–12\. [↩︎](#fnref32)
33. *See* Scarcella, *supra* note 29; Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11–12\. [↩︎](#fnref33)
34. *See* Pragyan Kalita & Prakhar Srivastava, [*Legal Software Firm Harvey Valued at $11 Billion in Latest Funding Round*](https://www.reuters.com/technology/legal-software-firm-harvey-valued-11-billion-latest-funding-round-2026-03-25/?ref=thecommonplace.press), Reuters (Mar. 25, 2026); Prakhar Srivastava, [*Legal AI Firm Clio Valued at $5 Billion in Latest Funding Round*](https://www.reuters.com/legal/legalindustry/legal-ai-technology-firm-clio-valued-5-billion-latest-funding-round-2025-11-10/?ref=thecommonplace.press), Reuters (Nov. 10, 2025); Thomson Reuters, [*One Million Professionals Turn to CoCounsel as Thomson Reuters Scales AI for Regulated Industries*](https://www.thomsonreuters.com/en/press-releases/2026/february/one-million-professionals-turn-to-cocounsel-as-thomson-reuters-scales-ai-for-regulated-industries?ref=thecommonplace.press) (Feb. 24, 2026); Ass'n of Corp. Couns. & Everlaw, [*New ACC Report Finds Generative AI Use in Corporate Law Departments More Than Doubled in a Single Year*](https://www.acc.com/about/newsroom/news/acc-genai-report-corporate-law-departments-ai-use-everlaw?ref=thecommonplace.press) (Oct. 14, 2025). [↩︎](#fnref34)
35. *See* sources cited *supra* notes 24–34\. [↩︎](#fnref35)
36. *See* Formal Op. 512, *supra* note 1, at 1\. [↩︎](#fnref36)
37. *See* Formal Op. 512, *supra* note 1, at 1–6, 12–15; Wendel, *supra* note 1, at 26–27, 40–43; McCarl, *supra* note 6, at 923–49; Kapoor, Henderson & Narayanan, *supra* note 6; *LNU*, slip op. at 14–18\. [↩︎](#fnref37)
38. *See* sources cited *supra* notes 2, 4–6\. [↩︎](#fnref38)
39. *See* Formal Op. 512, *supra* note 1, at 1, 3–5; *LNU*, slip op. at 14–18; McCarl, *supra* note 6, at 923–49; Kapoor, Henderson & Narayanan, *supra* note 6\. [↩︎](#fnref39)
40. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–15; *LNU*, slip op. at 14–18\. [↩︎](#fnref40)
41. *See* Formal Op. 512, *supra* note 1, at 3–6; Model Rules of Prof'l Conduct r. 1.1 (Am. Bar Ass'n 2024). [↩︎](#fnref41)
42. *See* Formal Op. 512, *supra* note 1, at 3–6, 12–15; Model Rules of Prof'l Conduct rr. 1.1, 3.3 (Am. Bar Ass'n 2024); *LNU*, slip op. at 14–18\. [↩︎](#fnref42)
43. *See* Formal Op. 512, *supra* note 1, at 1, 5–6; Beaumont, *supra* note 27, at 220–28; Russell, *supra* note 27, at 131–37; Gottschalk & Khandelwal, *supra* note 27, at 375–85\. [↩︎](#fnref43)
44. *See* Beaumont, *supra* note 27, at 220–28; Russell, *supra* note 27, at 131–37; Gottschalk & Khandelwal, *supra* note 27, at 375–85\. [↩︎](#fnref44)
45. *See* Formal Op. 512, *supra* note 1, at 3–6, 12–15; Beaumont, *supra* note 27, at 220–28; Russell, *supra* note 27, at 131–37; Gottschalk & Khandelwal, *supra* note 27, at 375–85\. [↩︎](#fnref45)
46. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–15; Wendel, *supra* note 1, at 26–27, 40–43; *LNU*, slip op. at 14–18\. [↩︎](#fnref46)
47. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–15\. [↩︎](#fnref47)
48. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–15\. [↩︎](#fnref48)
49. *See* Formal Op. 512, *supra* note 1, at 1\. [↩︎](#fnref49)
50. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–15; Wendel, *supra* note 1, at 40–43\. [↩︎](#fnref50)
51. *See* Formal Op. 512, *supra* note 1, at 3–6, 10–15; Model Rules of Prof'l Conduct rr. 1.1, 1.5, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024). [↩︎](#fnref51)
52. *See* Formal Op. 512, *supra* note 1, at 2–4\. [↩︎](#fnref52)
53. *See id.* at 3–4\. [↩︎](#fnref53)
54. *See id.* at 4–5\. [↩︎](#fnref54)
55. *See id.* at 7–10; Model Rules of Prof'l Conduct rr. 5.1, 5.3 (Am. Bar Ass'n 2024). [↩︎](#fnref55)
56. *See* Model Rules of Prof'l Conduct rr. 1.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 3–6, 7–10, 12–15; *Mata*, 678 F. Supp. 3d at 448–49, 461–66; *LNU*, slip op. at 14–18; Fed. R. Civ. P. 11(b)–(c). [↩︎](#fnref56)
57. *See* sources cited *supra* note 56\. [↩︎](#fnref57)
58. *See* Formal Op. 512, *supra* note 1, at 3–5, 12–15; *Mata*, 678 F. Supp. 3d at 448–49, 461–66; *LNU*, slip op. at 14–18; Magesh et al., *supra* note 8, at 216–42\. [↩︎](#fnref58)
59. *See* *Mata*, 678 F. Supp. 3d at 448–49, 461–66; *LNU*, slip op. at 14–18; Magesh et al., *supra* note 8, at 216–42\. [↩︎](#fnref59)
60. *See* Formal Op. 512, *supra* note 1, at 3–4 n.14; Magesh et al., *supra* note 8, at 216–42\. [↩︎](#fnref60)
61. *See* *Mata*, 678 F. Supp. 3d at 448–49, 461–66\. [↩︎](#fnref61)
62. *See id.* at 448–49, 461–66\. [↩︎](#fnref62)
63. *See id.*; Fed. R. Civ. P. 11(b)–(c). [↩︎](#fnref63)
64. *See* *LNU*, slip op. at 2–5, 14–18\. [↩︎](#fnref64)
65. *See id.* [↩︎](#fnref65)
66. *See* Model Rules of Prof'l Conduct rr. 1.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Fed. R. Civ. P. 11(b)–(c); *Mata*, 678 F. Supp. 3d at 448–49, 461–66; *LNU*, slip op. at 14–18\. [↩︎](#fnref66)
67. *See* sources cited *supra* note 66\. [↩︎](#fnref67)
68. *See* 22 N.Y.C.R.R. pt. 161, §§ 161.1–161.4 & app. A (effective June 1, 2026). [↩︎](#fnref68)
69. *See id.* §§ 161.3–161.4 & app. A. [↩︎](#fnref69)
70. *See* Fed. R. Civ. P. 11(b)–(c); *Mata*, 678 F. Supp. 3d at 448–49, 461–66; *LNU*, slip op. at 14–18; 22 N.Y.C.R.R. pt. 161, §§ 161.3–161.4 & app. A. [↩︎](#fnref70)
71. *See* sources cited *supra* note 70\. [↩︎](#fnref71)
72. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 10–12; Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 12; Ass'n of Corp. Couns. & Everlaw, *supra* note 34\. [↩︎](#fnref72)
73. *See* Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11–12\. [↩︎](#fnref73)
74. *See id.* at 12\. [↩︎](#fnref74)
75. *See* Formal Op. 512, *supra* note 1, at 10–12; Model Rules of Prof'l Conduct r. 1.5 (Am. Bar Ass'n 2024). [↩︎](#fnref75)
76. *See* Formal Op. 512, *supra* note 1, at 10–12; Model Rules of Prof'l Conduct r. 1.5 (Am. Bar Ass'n 2024). [↩︎](#fnref76)
77. *See* Formal Op. 512, *supra* note 1, at 10–12; Model Rules of Prof'l Conduct r. 1.5 (Am. Bar Ass'n 2024). [↩︎](#fnref77)
78. *See* Ass'n of Corp. Couns. & Everlaw, *supra* note 34\. [↩︎](#fnref78)
79. *See id.* [↩︎](#fnref79)
80. *See* Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 12; Ass'n of Corp. Couns. & Everlaw, *supra* note 34\. [↩︎](#fnref80)
81. *See* sources cited *supra* note 80\. [↩︎](#fnref81)
82. *See* Formal Op. 512, *supra* note 1, at 3–5, 10–12; Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11–12\. [↩︎](#fnref82)
83. *See* Formal Op. 512, *supra* note 1, at 3–5, 12–15; *Mata*, 678 F. Supp. 3d at 448–49, 461–66; *LNU*, slip op. at 14–18; Magesh et al., *supra* note 8, at 216–42\. [↩︎](#fnref83)
84. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–15; 22 N.Y.C.R.R. pt. 161, §§ 161.3–161.4 & app. A. [↩︎](#fnref84)
85. *See* sources cited *supra* note 84\. [↩︎](#fnref85)
86. *See* Fed. R. Civ. P. 34(a)(1)(A), 37(e); Hedges, Rothstein & Wiggins, *supra* note 4, at 1–7, 31–35, 40–43; The Sedona Conference, *supra* note 4, principles 1–5; Wendel, *supra* note 1, at 21–43; McCarl, *supra* note 6, at 923–49; Kapoor, Henderson & Narayanan, *supra* note 6\. [↩︎](#fnref86)
87. *See* sources cited *supra* notes 4–5, 86\. [↩︎](#fnref87)
88. *See* Formal Op. 512, *supra* note 1, at 3–5; Scarcella, *supra* note 29; Magesh et al., *supra* note 8, at 216–42; *LNU*, slip op. at 14–18\. [↩︎](#fnref88)
89. *See* Formal Op. 512, *supra* note 1, at 3–4 n.14; Magesh et al., *supra* note 8, at 216–42; Scarcella, *supra* note 29\. [↩︎](#fnref89)
90. *See* Formal Op. 512, *supra* note 1, at 2–6, 7–12; Scarcella, *supra* note 29; Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11–12\. [↩︎](#fnref90)
91. *See* sources cited *supra* notes 88–90\. [↩︎](#fnref91)
92. *See* sources cited *supra* notes 4–8, 86–91\. [↩︎](#fnref92)
93. *See* sources cited *supra* notes 4–8, 36–47, 86–92\. [↩︎](#fnref93)
94. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–15; Thomson Reuters Inst. & Georgetown Law Ctr. on Ethics & the Legal Profession, *supra* note 2, at 11–12; Scarcella, *supra* note 29; Ass'n of Corp. Couns. & Everlaw, *supra* note 34\. [↩︎](#fnref94)
95. *See* sources cited *supra* note 94\. [↩︎](#fnref95)
96. *See* Formal Op. 512, *supra* note 1, at 1–15; Model Rules of Prof'l Conduct rr. 1.1, 1.5, 1.6, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); 22 N.Y.C.R.R. pt. 161, §§ 161.3–161.4 & app. A. [↩︎](#fnref96)
97. *See* sources cited *supra* note 96\. [↩︎](#fnref97)
98. *See* Fed. R. Civ. P. 34(a)(1)(A), 37(e); Hedges, Rothstein & Wiggins, *supra* note 4, at 1–7, 31–35, 40–43; The Sedona Conference, *supra* note 4, principles 1–5; EDRM Model, *supra* note 4\. [↩︎](#fnref98)
99. *See* sources cited *supra* notes 94–98\. [↩︎](#fnref99)
100. *See* Model Rules of Prof'l Conduct rr. 1.1, 1.4, 1.5, 1.6, 3.1, 3.3, 5.1, 5.3 (Am. Bar Ass'n 2024); Formal Op. 512, *supra* note 1, at 1–15; *Mata*, 678 F. Supp. 3d at 448–49, 461–66; *LNU*, slip op. at 14–18; Fed. R. Civ. P. 11(b)–(c). [↩︎](#fnref100)
101. *See* sources cited *supra* note 100\. [↩︎](#fnref101)
### Lawful Access and Guide Accountability in Texas Hunting Law
URL: https://www.thecommonplace.press/lawful-access-and-guide-accountability-in-texas-hunting-law/
Last updated: 2026-06-15T16:45:52.000Z
## Introduction

Texas regulates guides directly in defined contexts, as a person selling fishing-guide services must obtain a fishing-guide license, while a person operating a guided saltwater trip from a vessel must satisfy additional credentialing requirements tied to maritime operation.[\[1\]](#fn1) In that setting, the guide becomes the object of regulation because the legal requirement follows the public-facing business being offered, instead of resting only on the client’s independent obligation to obey fishing rules.[\[2\]](#fn2)

Texas hunting law follows a different structure, regulating the hunter who must hold the proper license and obey game laws, the landowner or agent who accepts paying hunters under a hunting lease, and the specialized commercial operations that fall within separate statutory categories.[\[3\]](#fn3) Those rules also reach commercial bird operations, field trials, game-bird breeding, trespass, owner or agent consent, baiting, unlawful take, and civil restitution, thereby protecting private property, wildlife, and the established order of hunting in a state where land access is fundamental.[\[4\]](#fn4)

That framework leaves a recurring question when the person selling the hunt is neither the landowner, nor clearly the landowner’s agent, nor simply the hunter-client, because Texas law does not clearly identify the regulated actor in that setting.[\[5\]](#fn5)

Compensated hunting services can create risks that sit uneasily within the categories Texas already uses, since a guide may advertise hunts, book clients, arrange access, supply equipment or dogs, call birds, transport hunters, make field decisions, and represent that the hunt is lawful.[\[6\]](#fn6) He may conduct hunts across several properties where his authority derives from another person’s ownership, leasehold, agency relationship, or permission, in a market where landowner permission, client reliance, migratory-bird rules, and wildlife enforcement intersect, leaving Texas able to prosecute trespass, unlawful taking, baiting, fraud-related conduct, or hunting without required landowner or authorized-agent consent when misconduct occurs.[\[7\]](#fn7) The unresolved question is whether Texas has a guide-specific accountability mechanism directed to the person selling guided hunting services to the public.[\[8\]](#fn8)

This Article contends that Texas should distinguish between access regulation and accountability for guidance, because hunting-lease law addresses who may sell access to hunt on land, while guide accountability concerns who may sell professional hunting services to the public.[\[9\]](#fn9) Those inquiries may overlap when guides operate under a landowner’s authority, yet they remain separate legal questions when serious wildlife misconduct, misrepresentation of authority, or failure to secure land permission arises from the guide’s own commercial role.[\[10\]](#fn10)

The argument is deliberately narrow because Texas hunting commerce is already subject to substantial regulation, and any sound proposal must begin from that fact rather than from an assumption that hunting services operate in a legal vacuum.[\[11\]](#fn11) Ranch hands, dog handlers, friends, family members, volunteers, ordinary employees, and landowners operating on their own property fall outside the problem this Article addresses, and the present record does not support a new occupational board or a comprehensive western outfitter model.[\[12\]](#fn12) Because Texas is a private-land hunting state with limited public access, a broad licensing regime could raise costs, reinforce the position of larger operators, and make lawful hunting harder for ordinary Texans to access.[\[13\]](#fn13)

A more measured approach would focus on the commercial service provider whose conduct creates the accountability problem, permitting Texas to adopt a property-centered rule for compensated hunting guides and outfitters who offer guided hunting services on private land where their authority to guide depends on another person’s ownership, leasehold, agency relationship, or permission.[\[14\]](#fn14) Such a rule might require basic identification, written or electronic proof of the landowner’s, leaseholder’s, or authorized agent’s permission to conduct the guided hunt, and public discipline, including denial or revocation of privileges, after serious wildlife or trespass misconduct.[\[15\]](#fn15) By tying accountability to the person selling the guided-hunt service, Texas could protect landowners, clients, wildlife, and legitimate operators without turning private hunting activity into a general licensing bureaucracy.[\[16\]](#fn16)

The Article proceeds in six parts. Part I maps the regulated actors in Texas hunting and fishing law. Part II explains the fishing-guide comparison and why it sharpens the hunting question. Part III develops the access, agency, and independent-guide problem in Texas hunting law. Part IV considers Texas’s institutional record, including the Texas Parks and Wildlife Department’s Sunset materials and the 2023 rider requiring a study of illegal game-bird hunting and possible outfitter-guide licensing. Part V compares Oklahoma, Colorado, Wyoming, and Nebraska. Part VI addresses the principal counterarguments and proposes a limited Texas rule grounded in lawful access and guide accountability.

## I. The Regulated Actor in Texas Hunting and Fishing Law

The Texas framework is best understood by asking which actor the law regulates, because the answer differs across the hunting and fishing codes, and those differences explain why the hunting-guide question persists.[\[17\]](#fn17)

For fishing, Texas regulates the guide as a guide through a statutory structure that treats compensated fishing assistance as a distinct commercial service, requiring a person who engages in business as a fishing guide to hold the proper license.[\[18\]](#fn18) When the service involves a guided saltwater trip from a vessel, the state adds a further credentialing layer tied to vessel operation, making the guide’s business and the client’s angling conduct separate objects of legal attention.[\[19\]](#fn19)

The hunting structure begins elsewhere by regulating the hunter-client through ordinary hunting licenses, stamps, endorsements, hunter-education requirements, seasons, bag limits, and method-of-take rules, while leaving the hunter responsible for compliance even when he hires assistance.[\[20\]](#fn20) If he takes wildlife unlawfully, hunts over bait, lacks proper permission, or violates game laws, the state may proceed against him directly under the rules governing his own conduct in the field.[\[21\]](#fn21)

Texas also regulates access to land by prohibiting a person from taking wildlife on another’s property without consent and by attaching separate consequences to entry onto land for hunting without consent.[\[22\]](#fn22) Those rules reflect the private-property foundation of Texas hunting, under which a landowner may grant permission, impose conditions, charge for access subject to applicable hunting-lease requirements, revoke permission, or refuse entry, and hunting opportunity rests heavily on private authority.[\[23\]](#fn23)

The hunting-lease statute fits this property-centered structure because it regulates the owner of a hunting lease or the landowner’s agent who receives paying hunters, thereby addressing the transaction through which access to land is monetized.[\[24\]](#fn24) In that setting, the law asks whether the person selling access to hunt on land holds the required lease license, making the access seller the regulated actor.[\[25\]](#fn25)

Texas also regulates specialized commercial hunting activities through separate rules for private bird-hunting areas, field trials, hunting cooperatives, commercial game-bird breeders, and similar arrangements that serve defined statutory purposes.[\[26\]](#fn26) Those categories regulate a place, an event, a breeding operation, or a specialized commercial activity, although they do not create a general statewide accountability mechanism for compensated hunting guides across species, properties, and business forms.[\[27\]](#fn27)

This actor map reveals the structural gap because Texas directly regulates the fishing guide, the hunter-client, the consent requirement and trespass, the hunting-lease owner or landowner’s agent, and specialized bird and field-trial operations.[\[28\]](#fn28) The uncertain actor is the independent compensated hunting guide who sells services to the public, conducts hunts on private land where his authority derives from another person’s land rights, may not clearly act as the landowner’s agent, and falls outside the specialized commercial categories.[\[29\]](#fn29)

The point is one of fit, since Texas has many laws that reach hunting misconduct and may reach a guide who trespasses, assists in an illegal take, baits a field, deceives clients, or guides without required landowner or authorized-agent consent.[\[30\]](#fn30) What appears to be missing is a public, guide-specific consequence tied to the person’s continued ability to market and sell guided hunting services, since Texas may punish the act while leaving no guide credential to deny, suspend, or revoke.[\[31\]](#fn31) The state may treat the person as hunter, trespasser, accomplice, or criminal defendant, while leaving no administrative record attached to his commercial role as a guide.[\[32\]](#fn32)

That mismatch matters because Texas has substantial rules for hunting conduct and access, while its general law appears to lack a corresponding rule aimed at guide accountability as such.[\[33\]](#fn33)

## II. Fishing Guides and the Logic of Commercial Responsibility

The fishing-guide comparison is useful because it shows that Texas already recognizes direct regulation of compensated outdoor guidance when the service relationship creates risks beyond the client’s own license obligations.[\[34\]](#fn34)

A fishing guide sells more than a day on the water, since he also sells knowledge, assistance, transportation, judgment, and a representation that the trip can be conducted lawfully.[\[35\]](#fn35) The client may still need his own license and remains responsible for his own conduct, although the guide controls much of the operative setting by selecting the water, operating the vessel when it is used, reading the weather, managing equipment, and directing much of the client’s experience.[\[36\]](#fn36) Texas responds to that relationship by placing an accountability gate on the guide’s compensated service.[\[37\]](#fn37)

That gate becomes more demanding in coastal waters because vessel operation creates additional risks, and the maritime credentialing layer exists because carrying paying clients on the water presents safety and operational concerns.[\[38\]](#fn38) Texas uses that credential as part of its fishing-guide framework, thereby connecting the commercial service provider to a larger system of qualifications and discipline, even though captain licensing does not exist to enforce fishing limits.[\[39\]](#fn39)

The analogy to hunting should be used carefully because a land-based hunt does not present the same maritime hazards as a coastal fishing trip, and different hunting settings create different operational demands.[\[40\]](#fn40) A quail guide in the Panhandle, a duck guide on rice fields, a deer guide in South Texas, and a nilgai guide near the coast do not operate under identical conditions, which means the fishing-guide model cannot justify importing vessel credentials or maritime rules into hunting.[\[41\]](#fn41) It proves the narrower point that Texas already knows how to regulate the person selling outdoor guide services when the state concludes that client responsibility alone is incomplete.[\[42\]](#fn42)

That narrower point sharpens the hunting question because Texas directs the fishing-guide license requirement to the person selling the guide service, while hunting regulation often addresses the hunter, the landowner, the landowner’s agent, or the specialized commercial operator.[\[43\]](#fn43) The compensated guide may stand between those legal categories, even while exercising practical control over the hunt.[\[44\]](#fn44)

The distinction is especially important when a client relies on the guide’s representation that the hunt is lawful, because a guided hunter may reasonably assume that the guide has arranged lawful access, selected a legal field, avoided baiting problems, understood species limits, and obtained any necessary permission from the landowner or leaseholder.[\[45\]](#fn45) Although the hunter remains legally responsible for his conduct, the commercial arrangement places unusual practical influence in the guide, and a legal structure that regulates only the client, the landowner, or the access seller may fail to account for that influence.[\[46\]](#fn46)

The fishing-guide regime therefore frames the question without dictating the answer, since Texas may decide that hunting is sufficiently different to rely on consent requirements, trespass law, hunting licenses, and ordinary wildlife enforcement.[\[47\]](#fn47) Even so, the state’s direct regulation of fishing guides makes the hunting arrangement harder to dismiss as a nonissue, because a paid guide-service relationship that warrants direct accountability in one outdoor context raises the question why a comparable relationship in hunting is handled only through surrounding categories.[\[48\]](#fn48)

## III. Access, Agency, and the Independent Hunting Guide

The missing actor is the compensated hunting guide who sells services to the public while standing outside the clearest categories of landowner, landowner’s agent, specialized operator, and hunter-client.[\[49\]](#fn49)

The difficulty originates from ordinary hunting arrangements in which a landowner may sell access directly, subject to applicable hunting-lease requirements when the transaction is for pay or other consideration, while a ranch may use employees to help guests and a waterfowl guide may move among fields depending on birds, crops, weather, and landowner relationships.[\[50\]](#fn50) A guide may book clients online, collect payment, arrange lodging, provide dogs or decoys, transport hunters, and direct the hunt from start to finish, while the source of his permission or access authority may be obvious in some cases and opaque in others.[\[51\]](#fn51) That uncertainty can make his legal role difficult for clients to understand and difficult for enforcement officers to assess in the field.[\[52\]](#fn52)

If the guide is truly the landowner’s agent and receives paying hunters in that capacity, the hunting-lease structure may already reach him, while a landowner who sells the hunting opportunity directly may be governed by the lease rule.[\[53\]](#fn53) If the hunt occurs in a licensed private bird-hunting area, the specialized commercial framework may apply.[\[54\]](#fn54) The harder case arises when an independent guide sells the guided experience, operates across properties, and relies on permission or access authority derived from another person’s land rights.[\[55\]](#fn55)

Those cases are legally significant because the harm is frequently tied to the guide’s commercial role, as a guide who takes clients onto property without valid landowner, leaseholder, or authorized-agent permission creates a landowner problem before any paperwork problem appears.[\[56\]](#fn56) A guide who places clients in a baited field creates a wildlife-enforcement problem that may expose both the client and the guide, while a guide who repeatedly misrepresents access or legal conditions creates a market-integrity problem for landowners, clients, and legitimate operators.[\[57\]](#fn57) In each case, the guide’s sale of the service is central to the risk.[\[58\]](#fn58)

Existing law can often punish the immediate wrong through trespass, unlawful take, baiting, fraud-related offenses, and other charges when the facts support them, although the missing piece concerns business continuity after serious misconduct.[\[59\]](#fn59) Without a guide-specific credential or public discipline mechanism, Texas may have no simple way to prevent the same person from continuing to sell guided hunts under another name, through another entity, or in another location.[\[60\]](#fn60) Criminal liability and hunting-license consequences may address the offense, yet they do not necessarily address the person’s ongoing presence in the guided-hunt market.[\[61\]](#fn61)

Guide accountability addresses that separate problem by asking whether the person who sells guided hunting services to the public should be identifiable, able to prove lawful permission or access authority when operating on private land, and subject to guide-specific consequences after serious wildlife, trespass, or fraud-related misconduct.[\[62\]](#fn62) A narrow accountability mechanism would leave criminal law, trespass law, and hunting-license rules in place, while connecting those rules to the commercial actor when his conduct shows that he should no longer be trusted to sell guided hunts.[\[63\]](#fn63)

The public record supports that narrower inquiry through repeated concern with land-permission failures, game-bird baiting, guide-side compliance problems, and illegal or unethical guide conduct, although it does not prove that guide misconduct is widespread across the entire Texas hunting market.[\[64\]](#fn64) That evidence does not justify a sweeping claim that Texas hunting commerce is lawless, but it does support the more modest conclusion that the current framework may leave the guide as guide without a clear regulatory accountability track, even as the surrounding actors are already regulated.[\[65\]](#fn65)

This distinction should frame the Article because Texas already regulates the hunting relationship in many respects, while leaving the commercial guide who sells, directs, and profits from the hunt less clearly accountable than the landowner, agent, specialized operator, or hunter.[\[66\]](#fn66)

## IV. Texas’s Own Institutional Record

The institutional record in Texas highlights the significance of the issue, which arose through public agency discussion, the Sunset process, and a legislative rider directing the Texas Parks and Wildlife Department to examine illegal game-bird hunting and possible guide or outfitter licensing.[\[67\]](#fn67)

The Sunset materials show the agency’s awareness of the asymmetry, recognizing that fishing guides must be licensed and must satisfy eligibility requirements, while hunting guides may operate without comparable qualifications or documentation.[\[68\]](#fn68) That observation came from the agency charged with administering the state’s wildlife laws, and it identifies the same actor mismatch that the statutory map reveals.[\[69\]](#fn69)

Public Commission materials show a similar concern because, before the legislative rider, guides and agency officials discussed the absence of a hunting-guide analog to the fishing-guide licensing system in practical terms.[\[70\]](#fn70) Some comments focused on illegal or unethical behavior by guides, while others focused on landowner relationships, insurance, and the difficulty of fitting mobile game-bird operations into a lease structure designed around land access.[\[71\]](#fn71) Those discussions locate the problem in the field, where guides, landowners, clients, and wardens encounter the consequences of unclear authority.[\[72\]](#fn72)

The 2023 rider narrowed the institutional focus by requiring the department to study illegal game-bird hunting, historical levels of violations, game-bird license requirements, and related laws, while also allowing recommendations that could extend to outfitter and guide licensing.[\[73\]](#fn73) That language frames licensing as one possible statutory response to illegal game-bird hunting, rather than as a generalized occupation-regulation project.[\[74\]](#fn74)

The public record also imposes limits because the rider-required report itself has not surfaced in the public materials reviewed, although the public trail shows that the study was ordered and that the department later represented the study and report would be completed on schedule.[\[75\]](#fn75) Because that trail does not reveal the department’s final recommendations, it would be inaccurate to say that Texas officially recommended or rejected guide licensing, or that guides caused a statewide game-bird crisis.[\[76\]](#fn76) The official record demonstrates institutional concern and an agency representation that the study and report would be completed on schedule, while leaving the final policy judgment undisclosed in the public materials reviewed.[\[77\]](#fn77)

That posture strengthens the Article while narrowing its claim, since Texas itself placed illegal game-bird hunting and possible guide or outfitter licensing into the policy stream after agency materials and public testimony had already identified the absence of a hunting-guide analog and the recurring complaint of unethical conduct by guides.[\[78\]](#fn78) At the same time, the official record points toward a targeted game-bird, land-authority, and enforcement-visibility concern, rather than a broad professional-licensing theory.[\[79\]](#fn79)

The institutional record therefore supports a restrained Texas-centered proposal, under which Texas, if it acts, should begin with the setting where the record is strongest.[\[80\]](#fn80) That setting is compensated guided hunting on private land, especially in game-bird markets where land permission, migratory-bird rules, and commercial service arrangements intersect, and any proposal must account for Texas’s private-land structure and high access costs.[\[81\]](#fn81) The official record makes the problem real enough to study, although it does not make the solution obvious.[\[82\]](#fn82)

## V. State Comparators and the Lessons of Restraint

Other states help clarify the choices available to Texas, although they do not supply a model that Texas should adopt wholesale, because each comparator reflects a different judgment about private land, wildlife enforcement, guide services, and market accountability.[\[83\]](#fn83)

Oklahoma offers the closest modern comparator because its new law focuses on compensated waterfowl and crane guiding and outfitting, requiring covered guides and outfitters to obtain a license and carry written landowner permission.[\[84\]](#fn84) The statute includes insurance requirements, landowner and agricultural-lessee exemptions, and revocation periods following covered violations, making it species-specific and closely tied to the kind of mobile private-land guiding that has raised concern in Texas.[\[85\]](#fn85)

That approach usefully separates the guide-accountability question from a broad occupational model because Oklahoma chose to focus on a defined market where land permission and migratory game-bird enforcement create recurring difficulties.[\[86\]](#fn86) It did so without creating an all-species licensing board for every person who helps with a hunt, which makes the model particularly relevant for Texas, where the strongest institutional record is also game-bird centered.[\[87\]](#fn87)

Oklahoma also shows the value of precision because some informal descriptions of the statute have suggested a lifetime ban, while the enrolled law, as reflected in the materials reviewed, uses term revocation periods.[\[88\]](#fn88) The accurate lesson is that Oklahoma created a species-limited licensing and discipline regime with written-permission and insurance requirements, along with substantial but time-limited revocation consequences, making it a serious accountability tool without supporting an inflated account of its effect.[\[89\]](#fn89)

Colorado provides a more extensive model built around the distinction between land access and outfitting services, treating a person who merely owns or leases land differently from a person who sells outfitting services to the public.[\[90\]](#fn90) That distinction is directly relevant to Texas because a landowner may authorize hunting on his own property, while a commercial outfitter who sells services to clients occupies a different role.[\[91\]](#fn91) Colorado’s framework ties that role to registration, insurance, bonding, written permission, and discipline for misrepresentation or wildlife-law violations.[\[92\]](#fn92)

Wyoming represents a more comprehensive western outfitter-and-guide model governed by a big-game context, including licensure, guide-outfitter relationships, insurance requirements, and disciplinary authority for fraud, safety issues, contract breaches, and wildlife violations.[\[93\]](#fn93) Wyoming demonstrates how a state can regulate guides as a distinct commercial class, although Texas’s hunting market, private-land structure, and access concerns make it a less direct template for Texas.[\[94\]](#fn94)

Nebraska helps from the other direction because its voluntary hunting and fishing guide and outfitter database shows that a state can recognize guides and outfitters as a category while stopping short of mandatory licensing.[\[95\]](#fn95) That approach does not create a true accountability gate, although it provides a control example for states that rely mainly on ordinary hunting law, consent requirements, and market ordering while offering a voluntary public information mechanism.[\[96\]](#fn96)

These comparators reveal a spectrum in which Texas could leave the current framework in place, create a voluntary database, adopt a narrow game-bird or private-land guide registration rule tied to written permission and discipline, or adopt a broader outfitter-guide licensing system.[\[97\]](#fn97) The record gathered so far points away from the broadest options and toward a narrow accountability rule, if Texas chooses to act.[\[98\]](#fn98)

That conclusion fits the Article’s central distinction because the key question is whether Texas should identify and discipline the commercial guide-service actor in a targeted way when that actor sells hunts on private land where his authority depends on another person’s property right, leasehold, agency relationship, or permission, and later engages in serious misconduct, rather than whether Texas should copy another state’s licensing system.[\[99\]](#fn99)

## VI. A Limited Rule for Lawful Access and Guide Accountability

The strongest counterargument is that Texas already has enough law, since hunters must hold licenses and comply with game laws, owner or agent consent is required, trespass is punishable under existing statutes, and hunting leases and specialized commercial operations are regulated by additional rules.[\[100\]](#fn100) Wildlife offenses can trigger criminal penalties, civil restitution, and license consequences, while a guide who violates the law can be charged as a principal or accomplice when the facts support it.[\[101\]](#fn101) From that perspective, a new guide rule risks duplicating existing law and converting field enforcement into paperwork enforcement.[\[102\]](#fn102)

This argument deserves weight, and any serious proposal must begin by acknowledging that Texas hunting commerce is already regulated, while asking whether Texas’s existing tools are aimed at the correct actor when the person selling the guided hunt creates the risk.[\[103\]](#fn103) Existing law can punish trespass, baiting, and unlawful take, although it may leave Texas without a public way to identify, track, and discipline the commercial service provider whose conduct shows a serious failure of trust.[\[104\]](#fn104)

Another counterargument centers on hunting access, given Texas’s heavy reliance on private land for hunting opportunity and the limited availability of public access.[\[105\]](#fn105) A broad licensing requirement could raise costs, burden seasonal or small-scale operators, favor established outfitters, and reduce lawful hunting opportunities, which matters because the Article’s proposed rule should serve landowners, hunters, and wildlife without protecting incumbents.[\[106\]](#fn106)

To address that objection, any Texas rule should remain carefully defined and avoid reaching landowners guiding on their own property, unpaid companions, family members, friends, ordinary ranch employees acting under a landowner’s direction, or dog handlers who do not hold themselves out as selling guided hunting services to the public.[\[107\]](#fn107) The rule should focus on compensated guide-service providers who market or sell guided hunts on private land where their authority depends on another person’s property right, leasehold, agency relationship, or permission.[\[108\]](#fn108)

A further counterargument concerns administrability because the term guide can sweep too broadly if left undefined, reaching persons who scout, drive, call birds, handle dogs, clean game, arrange introductions, coordinate lodging, or book hunts without exercising the same authority over land access and field conduct.[\[109\]](#fn109) A sound statute would need to define covered conduct with care, using compensation, public marketing, field assistance, and operational control as limiting principles instead of relying on a vague reference to helping with a hunt.[\[110\]](#fn110)

Another counterargument relates to proof, since the public record contains recurring examples and institutional concern while lacking a comprehensive complaint database or quantified measure of guide misconduct.[\[111\]](#fn111) That evidentiary limit matters for the remedy, because a broad all-species licensing system would require a stronger record, while a narrower rule tied to written proof of permission or access authority and serious misconduct better fits the evidence now available.[\[112\]](#fn112)

A final objection centers on private ordering, since landowners can choose reputable guides, clients can ask for references, and contracts can allocate responsibility, leaving the state with no reason to convert every private risk into a licensing program.[\[113\]](#fn113) That argument is strongest for ordinary business disputes, although it weakens when the guide’s conduct implicates owner-or-agent consent, wildlife law, criminal exposure for clients, and public resources.[\[114\]](#fn114) A hunter who hires a guide may learn too late that the field is baited or that permission or access authority is unclear, a landowner may learn too late that his property has been used, and wildlife damage or unlawful take cannot be undone by a bad online review.[\[115\]](#fn115)

A limited rule that supports private ordering could provide a better answer by creating a low-cost registration and discipline mechanism for compensated hunting guides who offer services to the public on private land where their authority depends on another person’s property right, leasehold, agency relationship, or permission.[\[116\]](#fn116) The registration would identify the guide, business names used, contact information, and serious wildlife, fraud, or trespass history, while the guide would carry written or electronic proof of permission or access authority when operating on private land.[\[117\]](#fn117) The department could deny, suspend, or revoke the registration after specified serious misconduct, including hunting without required landowner or authorized-agent consent, criminal trespass connected to hunting, baiting or knowing participation in baiting, serious state or federal wildlife convictions, fraud related to guided hunts, and false statements in registration materials.[\[118\]](#fn118)

Procedural safeguards are essential, including notice, an opportunity to respond, and a written decision for any denial, suspension, or revocation, because the goal is lawful accountability rather than informal punishment.[\[119\]](#fn119) The rule should also include public notice, since a searchable registry and discipline record would help landowners, clients, wardens, and legitimate operators identify who is selling guided hunting services and whether that person has been disciplined for serious misconduct.[\[120\]](#fn120)

One option is to begin even more narrowly with a pilot rule that applies only to migratory game birds or game-bird guiding on private land, then sunsets after a defined period unless the Legislature renews it.[\[121\]](#fn121) The Legislature could also require the department to report complaints, enforcement contacts, disciplinary actions, costs, and effects on hunting access, allowing Texas to match the institutional record, which is strongest in game-bird settings, while developing evidence before expanding any regulatory mechanism.[\[122\]](#fn122)

This approach would preserve the private-land character of Texas hunting by allowing a landowner to remain free to sell access subject to applicable hunting-lease requirements, guide guests on his own property, impose conditions, and exclude others.[\[123\]](#fn123) A hunting-lease rule would continue to govern the sale of access, while the new rule would address the separate actor who sells guided hunting services to the public while relying on permission or access authority derived from another person’s land rights.[\[124\]](#fn124)

## Conclusion

Texas hunting law regulates a wide range of actors, including hunters, landowners, landowners’ agents, access sellers, private bird hunting areas, field trials, game-bird breeders, trespassers, and wildlife-law violators, while also regulating fishing guides directly.[\[125\]](#fn125) The uncertain actor is narrower because the compensated hunting guide sells services to the public while standing outside the clearest categories already addressed by Texas law.[\[126\]](#fn126)

This mismatch should define the inquiry by shifting the focus from whether Texas hunting commerce is unregulated to whether the law regulates the right actor when the person selling the hunt creates land-permission, wildlife-compliance, and client-reliance risks.[\[127\]](#fn127) Existing law can punish trespass, baiting, unlawful take, and fraud-related conduct, while still failing to provide a guide-specific accountability mechanism that follows the commercial actor after serious misconduct and gives landowners, clients, wardens, and legitimate guides a reliable public reference point.[\[128\]](#fn128)

The public record supports caution and further consideration because it shows recurring land-permission and game-bird problems, together with Texas’s own institutional concern about the absence of a hunting-guide analog to fishing-guide licensing.[\[129\]](#fn129) It does not establish a quantified statewide crisis, nor does it reveal a final department recommendation from the rider-required study, while Oklahoma, Colorado, Wyoming, and Nebraska confirm that states can choose different points along the regulatory spectrum.[\[130\]](#fn130) Texas should choose carefully, with its private-land structure and access costs in view.[\[131\]](#fn131)

A narrow solution offers Texas the best approach because a low-cost registration and discipline rule for compensated hunting guides operating on private land where their authority depends on another person’s property right, leasehold, agency relationship, or permission would address the missing actor without creating a broad occupational regime.[\[132\]](#fn132) Written proof of permission or access authority would protect owners, public discipline would protect clients and legitimate operators, revocation after serious wildlife or trespass misconduct would protect the resource, and careful exemptions would protect ordinary rural arrangements.[\[133\]](#fn133)

Texas should keep access regulation and guide accountability in their proper places, with hunting-lease law governing the sale of access to land and a guide-accountability rule governing the sale of professional hunting services after serious misconduct.[\[134\]](#fn134) Texas law already answers the first question.[\[135\]](#fn135) It should now consider whether the second requires an answer.[\[136\]](#fn136)

## Notes

---

1. TEX. PARKS & WILD. CODE §§ 47.004(a), 47.005(a); Tex. Parks & Wildlife Dep’t, *Fishing Licenses and Packages*, Outdoor Annual 2025–2026, [https://tpwd.texas.gov/regulations/outdoor-annual/licenses/fishing-licenses-stamps-tags-packages/fishing-licenses-and-packages](https://tpwd.texas.gov/regulations/outdoor-annual/licenses/fishing-licenses-stamps-tags-packages/fishing-licenses-and-packages?ref=thecommonplace.press); 31 TEX. ADMIN. CODE § 57.997(a)–(b). [↩︎](#fnref1)
2. TEX. PARKS & WILD. CODE §§ 47.004(a), 47.005(a); Tex. Parks & Wildlife Dep’t, *Fishing Licenses and Packages*, supra note 1; 31 TEX. ADMIN. CODE § 57.997(a)–(b). [↩︎](#fnref2)
3. Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, Outdoor Annual 2025–2026, [https://tpwd.texas.gov/regulations/outdoor-annual/licenses/hunting-licenses-and-permits/hunting-licenses](https://tpwd.texas.gov/regulations/outdoor-annual/licenses/hunting-licenses-and-permits/hunting-licenses?ref=thecommonplace.press); Tex. Parks & Wildlife Dep’t, *Hunter Education*, Outdoor Annual 2025–2026, [https://tpwd.texas.gov/regulations/outdoor-annual/hunting/hunter-education](https://tpwd.texas.gov/regulations/outdoor-annual/hunting/hunter-education?ref=thecommonplace.press); TEX. PARKS & WILD. CODE § 43.042(a); Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, [https://tpwd.texas.gov/business/licenses/public/commercial/hunting/](https://tpwd.texas.gov/business/licenses/public/commercial/hunting/?ref=thecommonplace.press). [↩︎](#fnref3)
4. TEX. PARKS & WILD. CODE §§ 12.301, 43.042(a), 61.022; TEX. PENAL CODE § 30.05; 31 TEX. ADMIN. CODE §§ 56.5, 56.7; 50 C.F.R. § 20.21(i); Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, supra note 3\. [↩︎](#fnref4)
5. See TEX. PARKS & WILD. CODE §§ 43.042(a), 47.004(a), 47.005(a); 31 TEX. ADMIN. CODE §§ 56.7, 57.997; Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, supra note 3; TEX. PARKS & WILDLIFE DEP’T, *SELF-EVALUATION REPORT* 277 (Aug. 2019), [https://tpwd.texas.gov/publications/nonpwdpubs/media/tpwd\_sunset\_self\_evaluation\_report\_2019.pdf](https://tpwd.texas.gov/publications/nonpwdpubs/media/tpwd%5Fsunset%5Fself%5Fevaluation%5Freport%5F2019.pdf?ref=thecommonplace.press). [↩︎](#fnref5)
6. See COLO. REV. STAT. §§ 12-145-103(4)–(6), 12-145-104, 12-145-105; NEB. REV. STAT. § 37-356(1)(a)–(b); WYO. STAT. ANN. § 23-2-406(a)(i), (iii), (iv), (vi), (vii). [↩︎](#fnref6)
7. TEX. PARKS & WILD. CODE § 61.022; TEX. PENAL CODE §§ 30.05, 31.03; 50 C.F.R. § 20.21(i); Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Oct. 3, 2012), [https://tpwd.texas.gov/newsmedia/releases/?req=20121003a](https://tpwd.texas.gov/newsmedia/releases/?req=20121003a&ref=thecommonplace.press); Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Feb. 17, 2016), [https://tpwd.texas.gov/newsmedia/releases/?req=20160217a](https://tpwd.texas.gov/newsmedia/releases/?req=20160217a&ref=thecommonplace.press); Tex. Parks & Wildlife Dep’t, *Texas Game Wardens Arrest Three for Illegal Nilgai Hunts* (Feb. 3, 2025), [https://tpwd.texas.gov/newsmedia/releases/?req=20250203a](https://tpwd.texas.gov/newsmedia/releases/?req=20250203a&ref=thecommonplace.press). [↩︎](#fnref7)
8. 31 TEX. ADMIN. CODE §§ 56.5, 56.7; TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, Nov. 9, 2020, at 272–328, [https://tpwd.texas.gov/business/feedback/meetings/2021/1110/transcripts/work\_session/](https://tpwd.texas.gov/business/feedback/meetings/2021/1110/transcripts/work%5Fsession/?ref=thecommonplace.press). [↩︎](#fnref8)
9. TEX. PARKS & WILD. CODE § 43.042(a); COLO. REV. STAT. §§ 12-145-103(5)–(6), 12-145-104, 12-145-105\. [↩︎](#fnref9)
10. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; COLO. REV. STAT. § 12-145-109(1)(b), (c), (i), (l). [↩︎](#fnref10)
11. Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3; Tex. Parks & Wildlife Dep’t, *Hunter Education*, supra note 3; TEX. PARKS & WILD. CODE §§ 43.042(a), 61.022; TEX. PENAL CODE § 30.05; 31 TEX. ADMIN. CODE §§ 56.5, 56.7\. [↩︎](#fnref11)
12. See OKLA. S.B. 2095, 60th Leg., 2d Sess. § 1(F) (2026) (enrolled), [https://www.oklegislature.gov/cf\_pdf/2025-26 ENR/SB/SB2095 ENR.PDF](https://www.oklegislature.gov/cf%5Fpdf/2025-26%20ENR/SB/SB2095%20ENR.PDF?ref=thecommonplace.press); COLO. REV. STAT. § 12-145-104; WYO. STAT. ANN. §§ 23-2-401(c), 23-2-406(a)(iv), 23-2-410(d); U.S. DEP’T OF THE TREASURY OFFICE OF ECON. POLICY, COUNCIL OF ECON. ADVISERS & U.S. DEP’T OF LAB., *OCCUPATIONAL LICENSING: A FRAMEWORK FOR POLICYMAKERS* 7–8 (July 2015), [https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing\_report\_final\_nonembargo.pdf](https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing%5Freport%5Ffinal%5Fnonembargo.pdf?ref=thecommonplace.press). [↩︎](#fnref12)
13. TPWD SELF-EVALUATION REPORT, supra note 5, at 3–4; OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8\. [↩︎](#fnref13)
14. See OKLA. S.B. 2095 § 1(B)–(F); COLO. REV. STAT. §§ 12-145-103(5)–(6), 12-145-104, 12-145-108, 12-145-109; NEB. REV. STAT. § 37-356\. [↩︎](#fnref14)
15. 31 TEX. ADMIN. CODE §§ 56.5, 56.7; OKLA. S.B. 2095 § 1(C), (I), (J); COLO. REV. STAT. §§ 12-145-108(1)(e), 12-145-109\. [↩︎](#fnref15)
16. OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8; OKLA. S.B. 2095 § 1(C), (F), (I), (J); COLO. REV. STAT. §§ 12-145-104, 12-145-108, 12-145-109\. [↩︎](#fnref16)
17. See supra notes 1–5 and accompanying text. [↩︎](#fnref17)
18. TEX. PARKS & WILD. CODE §§ 47.004(a), 47.005(a); Tex. Parks & Wildlife Dep’t, *Fishing Licenses and Packages*, supra note 1\. [↩︎](#fnref18)
19. 31 TEX. ADMIN. CODE § 57.997(a)–(b). [↩︎](#fnref19)
20. Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3; Tex. Parks & Wildlife Dep’t, *Hunter Education*, supra note 3; TPWD SELF-EVALUATION REPORT, supra note 5, at 3–4, 277\. [↩︎](#fnref20)
21. TEX. PARKS & WILD. CODE § 61.022; 50 C.F.R. § 20.21(i); Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3; Tex. Parks & Wildlife Dep’t, *Hunter Education*, supra note 3\. [↩︎](#fnref21)
22. TEX. PARKS & WILD. CODE § 61.022; TEX. PENAL CODE § 30.05\. [↩︎](#fnref22)
23. TEX. PARKS & WILD. CODE §§ 43.042(a), 61.022; TEX. PENAL CODE § 30.05; Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3\. [↩︎](#fnref23)
24. TEX. PARKS & WILD. CODE § 43.042(a); Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3\. [↩︎](#fnref24)
25. TEX. PARKS & WILD. CODE § 43.042(a). [↩︎](#fnref25)
26. Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, supra note 3; 31 TEX. ADMIN. CODE § 56.7\. [↩︎](#fnref26)
27. Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, supra note 3; 31 TEX. ADMIN. CODE § 56.7; TPWD SELF-EVALUATION REPORT, supra note 5, at 277\. [↩︎](#fnref27)
28. See supra notes 18–27\. [↩︎](#fnref28)
29. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, supra note 3; 31 TEX. ADMIN. CODE § 56.7\. [↩︎](#fnref29)
30. TEX. PARKS & WILD. CODE § 61.022; TEX. PENAL CODE §§ 7.02, 30.05, 31.03; 31 TEX. ADMIN. CODE § 56.5\. [↩︎](#fnref30)
31. 31 TEX. ADMIN. CODE §§ 56.5, 56.7; TPWD SELF-EVALUATION REPORT, supra note 5, at 277\. [↩︎](#fnref31)
32. TEX. PENAL CODE §§ 7.02, 30.05; TEX. PARKS & WILD. CODE § 61.022; 31 TEX. ADMIN. CODE §§ 56.5, 56.7\. [↩︎](#fnref32)
33. See supra notes 18–32\. [↩︎](#fnref33)
34. TEX. PARKS & WILD. CODE §§ 47.004(a), 47.005(a); Tex. Parks & Wildlife Dep’t, *Fishing Licenses and Packages*, supra note 1; 31 TEX. ADMIN. CODE § 57.997\. [↩︎](#fnref34)
35. Tex. Parks & Wildlife Dep’t, *Fishing Licenses and Packages*, supra note 1; COLO. REV. STAT. § 12-145-103(4)–(6); NEB. REV. STAT. § 37-356(1)(a)–(b). [↩︎](#fnref35)
36. 31 TEX. ADMIN. CODE § 57.997; Tex. Parks & Wildlife Dep’t, *Fishing Licenses and Packages*, supra note 1\. [↩︎](#fnref36)
37. TEX. PARKS & WILD. CODE §§ 47.004(a), 47.005(a); 31 TEX. ADMIN. CODE §§ 56.5, 56.7, 57.997\. [↩︎](#fnref37)
38. 31 TEX. ADMIN. CODE § 57.997(b); U.S. Coast Guard, National Maritime Center, *Charter Boat Captain*, [https://www.dco.uscg.mil/nmc/charter\_boat\_captain/](https://www.dco.uscg.mil/nmc/charter%5Fboat%5Fcaptain/?ref=thecommonplace.press); U.S. Coast Guard, National Maritime Center, *Medical Certificate*, [https://www.dco.uscg.mil/nmc/medical\_certificate/](https://www.dco.uscg.mil/nmc/medical%5Fcertificate/?ref=thecommonplace.press). [↩︎](#fnref38)
39. 31 TEX. ADMIN. CODE § 57.997(b); U.S. Coast Guard, National Maritime Center, *Charter Boat Captain*, supra note 38\. [↩︎](#fnref39)
40. Compare 31 TEX. ADMIN. CODE § 57.997(b), with TEX. PARKS & WILD. CODE §§ 43.042(a), 61.022, and Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3\. [↩︎](#fnref40)
41. See 31 TEX. ADMIN. CODE § 57.997(b); Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 315–328; Tex. Parks & Wildlife Dep’t, Regional Public Hearing Transcript, Lubbock, May 23, 2018, at 669–686\. [↩︎](#fnref41)
42. TEX. PARKS & WILD. CODE §§ 47.004(a), 47.005(a); TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328\. [↩︎](#fnref42)
43. See supra notes 18–29 and accompanying text. [↩︎](#fnref43)
44. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 315–328\. [↩︎](#fnref44)
45. TEX. PARKS & WILD. CODE § 61.022; 50 C.F.R. § 20.21(i); Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Oct. 3, 2012), supra note 7; U.S. Fish & Wildlife Serv., *Dove Hunting and Baiting*, [https://www.fws.gov/story/dove-hunting-and-baiting](https://www.fws.gov/story/dove-hunting-and-baiting?ref=thecommonplace.press). [↩︎](#fnref45)
46. TEX. PARKS & WILD. CODE § 61.022; 50 C.F.R. § 20.21(i); Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Oct. 3, 2012), supra note 7\. [↩︎](#fnref46)
47. See supra notes 20–33\. [↩︎](#fnref47)
48. See supra notes 34–47\. [↩︎](#fnref48)
49. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; 31 TEX. ADMIN. CODE § 56.7\. [↩︎](#fnref49)
50. TEX. PARKS & WILD. CODE § 43.042(a); Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 315–328; Tex. Parks & Wildlife Dep’t, Regional Public Hearing Transcript, Lubbock, May 23, 2018, at 669–686\. [↩︎](#fnref50)
51. COLO. REV. STAT. § 12-145-103(4)–(6); NEB. REV. STAT. § 37-356(1)(a)–(b); WYO. STAT. ANN. § 23-2-406(a)(i), (iii), (iv), (vi), (vii). [↩︎](#fnref51)
52. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 315–328\. [↩︎](#fnref52)
53. TEX. PARKS & WILD. CODE § 43.042(a); Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3\. [↩︎](#fnref53)
54. Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, supra note 3; 31 TEX. ADMIN. CODE § 56.7\. [↩︎](#fnref54)
55. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328\. [↩︎](#fnref55)
56. TEX. PARKS & WILD. CODE § 61.022; TEX. PENAL CODE § 30.05; Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Feb. 17, 2016), supra note 7; Tex. Parks & Wildlife Dep’t, *Texas Game Wardens Arrest Three for Illegal Nilgai Hunts* (Feb. 3, 2025), supra note 7\. [↩︎](#fnref56)
57. 50 C.F.R. § 20.21(i); Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Oct. 3, 2012), supra note 7; COLO. REV. STAT. § 12-145-109(1)(i), (l). [↩︎](#fnref57)
58. COLO. REV. STAT. §§ 12-145-103(4)–(6), 12-145-109; OKLA. S.B. 2095 § 1(A)–(C), (I), (J). [↩︎](#fnref58)
59. TEX. PARKS & WILD. CODE § 61.022; TEX. PENAL CODE §§ 7.02, 30.05, 31.03; 31 TEX. ADMIN. CODE § 56.5; 50 C.F.R. § 20.21(i). [↩︎](#fnref59)
60. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; 31 TEX. ADMIN. CODE § 56.7\. [↩︎](#fnref60)
61. 31 TEX. ADMIN. CODE §§ 56.5, 56.7; TEX. PARKS & WILD. CODE § 61.022(b)–(e). [↩︎](#fnref61)
62. OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8; 31 TEX. ADMIN. CODE §§ 56.5, 56.7; OKLA. S.B. 2095 § 1(C), (I), (J); COLO. REV. STAT. §§ 12-145-108, 12-145-109\. [↩︎](#fnref62)
63. 31 TEX. ADMIN. CODE § 56.5; OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8\. [↩︎](#fnref63)
64. Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Oct. 3, 2012), supra note 7; Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Feb. 17, 2016), supra note 7; Tex. Parks & Wildlife Dep’t, *Texas Game Wardens Arrest Three for Illegal Nilgai Hunts* (Feb. 3, 2025), supra note 7; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 315–328\. [↩︎](#fnref64)
65. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; 31 TEX. ADMIN. CODE § 56.7\. [↩︎](#fnref65)
66. See supra notes 49–65\. [↩︎](#fnref66)
67. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET* 40–41 (May 2023), [https://www.lbb.texas.gov/Documents/Appropriations\_Bills/88/Adopted\_Decision\_Documents/Article06\_IssueDoc.pdf](https://www.lbb.texas.gov/Documents/Appropriations%5FBills/88/Adopted%5FDecision%5FDocuments/Article06%5FIssueDoc.pdf?ref=thecommonplace.press). [↩︎](#fnref67)
68. TPWD SELF-EVALUATION REPORT, supra note 5, at 277\. [↩︎](#fnref68)
69. Id.; TEX. PARKS & WILD. CODE §§ 43.042(a), 47.004(a), 47.005(a); 31 TEX. ADMIN. CODE §§ 56.7, 57.997\. [↩︎](#fnref69)
70. Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328\. [↩︎](#fnref70)
71. Id. at 315–328; Tex. Parks & Wildlife Dep’t, Regional Public Hearing Transcript, Lubbock, May 23, 2018, at 669–686\. [↩︎](#fnref71)
72. Tex. Parks & Wildlife Dep’t, Regional Public Hearing Transcript, Lubbock, May 23, 2018, at 669–686; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 315–328\. [↩︎](#fnref72)
73. LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref73)
74. Id. [↩︎](#fnref74)
75. Id.; TEX. PARKS & WILDLIFE DEP’T, *LEGISLATIVE APPROPRIATIONS REQUEST FOR FISCAL YEARS 2026 AND 2027* 252–53 (Sept. 27, 2024), [https://tpwd.texas.gov/publications/pwdpubs/media/FY26-27-TPWD-LAR.pdf](https://tpwd.texas.gov/publications/pwdpubs/media/FY26-27-TPWD-LAR.pdf?ref=thecommonplace.press). [↩︎](#fnref75)
76. TEX. PARKS & WILDLIFE DEP’T, *LEGISLATIVE APPROPRIATIONS REQUEST FOR FISCAL YEARS 2026 AND 2027*, supra note 75, at 252–53; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref76)
77. TEX. PARKS & WILDLIFE DEP’T, *LEGISLATIVE APPROPRIATIONS REQUEST FOR FISCAL YEARS 2026 AND 2027*, supra note 75, at 252–53; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref77)
78. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref78)
79. LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 315–328\. [↩︎](#fnref79)
80. LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41; TPWD SELF-EVALUATION REPORT, supra note 5, at 277\. [↩︎](#fnref80)
81. TPWD SELF-EVALUATION REPORT, supra note 5, at 3–4, 277; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref81)
82. TEX. PARKS & WILDLIFE DEP’T, *LEGISLATIVE APPROPRIATIONS REQUEST FOR FISCAL YEARS 2026 AND 2027*, supra note 75, at 252–53\. [↩︎](#fnref82)
83. See OKLA. S.B. 2095; COLO. REV. STAT. §§ 12-145-101 to -117; WYO. STAT. ANN. §§ 23-2-401 to -418; NEB. REV. STAT. § 37-356\. [↩︎](#fnref83)
84. OKLA. S.B. 2095 § 1(A)–(C). [↩︎](#fnref84)
85. Id. § 1(C)–(J). [↩︎](#fnref85)
86. Id. § 1(A)–(C), (F). [↩︎](#fnref86)
87. OKLA. S.B. 2095 § 1(A)–(C), (F); LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref87)
88. OKLA. S.B. 2095 § 1(I)–(J). [↩︎](#fnref88)
89. Id.; Okla. Dep’t of Wildlife Conservation, *Legislative Tracker* (2026), [https://www.wildlifedepartment.com/about/legislation](https://www.wildlifedepartment.com/about/legislation?ref=thecommonplace.press). [↩︎](#fnref89)
90. COLO. REV. STAT. §§ 12-145-103(5)–(6), 12-145-104\. [↩︎](#fnref90)
91. Id. [↩︎](#fnref91)
92. COLO. REV. STAT. §§ 12-145-105, 12-145-106, 12-145-108, 12-145-109\. [↩︎](#fnref92)
93. WYO. STAT. ANN. §§ 23-2-401, 23-2-406, 23-2-407, 23-2-410 to -413, 23-2-416\. [↩︎](#fnref93)
94. Id.; TPWD SELF-EVALUATION REPORT, supra note 5, at 3–4; Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3\. [↩︎](#fnref94)
95. NEB. REV. STAT. § 37-356\. [↩︎](#fnref95)
96. Id.; OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8\. [↩︎](#fnref96)
97. See OKLA. S.B. 2095; COLO. REV. STAT. §§ 12-145-101 to -117; WYO. STAT. ANN. §§ 23-2-401 to -418; NEB. REV. STAT. § 37-356\. [↩︎](#fnref97)
98. LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41; TPWD SELF-EVALUATION REPORT, supra note 5, at 277; OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8\. [↩︎](#fnref98)
99. See supra notes 83–98\. [↩︎](#fnref99)
100. Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3; Tex. Parks & Wildlife Dep’t, *Hunter Education*, supra note 3; TEX. PARKS & WILD. CODE §§ 43.042(a), 61.022; TEX. PENAL CODE § 30.05; Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, supra note 3\. [↩︎](#fnref100)
101. TEX. PARKS & WILD. CODE §§ 12.301, 61.022; TEX. PENAL CODE § 7.02; 31 TEX. ADMIN. CODE § 56.5\. [↩︎](#fnref101)
102. OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8; see also supra notes 100–101\. [↩︎](#fnref102)
103. See supra notes 100–102\. [↩︎](#fnref103)
104. 31 TEX. ADMIN. CODE §§ 56.5, 56.7; TPWD SELF-EVALUATION REPORT, supra note 5, at 277\. [↩︎](#fnref104)
105. TPWD SELF-EVALUATION REPORT, supra note 5, at 3–4\. [↩︎](#fnref105)
106. OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8\. [↩︎](#fnref106)
107. OKLA. S.B. 2095 § 1(F); COLO. REV. STAT. § 12-145-104; WYO. STAT. ANN. §§ 23-2-401(c), 23-2-406(a)(iv), 23-2-410(d). [↩︎](#fnref107)
108. See OKLA. S.B. 2095 § 1(A)–(B); COLO. REV. STAT. § 12-145-103(4)–(6); WYO. STAT. ANN. § 23-2-406(a)(i), (iii), (iv), (vi), (vii); NEB. REV. STAT. § 37-356(1)(a)–(b). [↩︎](#fnref108)
109. See COLO. REV. STAT. § 12-145-103(4)–(6); WYO. STAT. ANN. § 23-2-406(a)(i), (iii), (iv), (vi), (vii); NEB. REV. STAT. § 37-356(1)(a)–(b). [↩︎](#fnref109)
110. COLO. REV. STAT. § 12-145-103(4)–(6); WYO. STAT. ANN. § 23-2-406(a)(i), (iii), (iv), (vi), (vii); NEB. REV. STAT. § 37-356(1)(a)–(b); OKLA. S.B. 2095 § 1(A)–(B). [↩︎](#fnref110)
111. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref111)
112. OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref112)
113. See COLO. REV. STAT. § 12-145-112; OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8\. [↩︎](#fnref113)
114. TEX. PARKS & WILD. CODE § 61.022; TEX. PENAL CODE § 30.05; 50 C.F.R. § 20.21(i); Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Oct. 3, 2012), supra note 7; Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Feb. 17, 2016), supra note 7\. [↩︎](#fnref114)
115. TEX. PARKS & WILD. CODE § 61.022; 50 C.F.R. § 20.21(i); Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Oct. 3, 2012), supra note 7; Tex. Parks & Wildlife Dep’t, *Texas Game Wardens Arrest Three for Illegal Nilgai Hunts* (Feb. 3, 2025), supra note 7\. [↩︎](#fnref115)
116. OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8; NEB. REV. STAT. § 37-356\. [↩︎](#fnref116)
117. OKLA. S.B. 2095 § 1(C); NEB. REV. STAT. § 37-356(2)–(3); COLO. REV. STAT. § 12-145-108\. [↩︎](#fnref117)
118. 31 TEX. ADMIN. CODE § 56.5; OKLA. S.B. 2095 § 1(I)–(J); COLO. REV. STAT. § 12-145-109; WYO. STAT. ANN. § 23-2-416\. [↩︎](#fnref118)
119. TEX. GOV’T CODE §§ 2001.051–.178; 31 TEX. ADMIN. CODE § 56.5(d); COLO. REV. STAT. § 12-145-109(2). [↩︎](#fnref119)
120. OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8; NEB. REV. STAT. § 37-356\. [↩︎](#fnref120)
121. LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41; OKLA. S.B. 2095 § 1(A)–(C). [↩︎](#fnref121)
122. LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41; OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8\. [↩︎](#fnref122)
123. TEX. PARKS & WILD. CODE §§ 43.042(a), 61.022; TEX. PENAL CODE § 30.05; COLO. REV. STAT. § 12-145-104; OKLA. S.B. 2095 § 1(F). [↩︎](#fnref123)
124. TEX. PARKS & WILD. CODE § 43.042(a); COLO. REV. STAT. §§ 12-145-103(5)–(6), 12-145-104, 12-145-105\. [↩︎](#fnref124)
125. Tex. Parks & Wildlife Dep’t, *Hunting Licenses*, supra note 3; Tex. Parks & Wildlife Dep’t, *Hunter Education*, supra note 3; TEX. PARKS & WILD. CODE §§ 43.042(a), 47.004(a), 47.005(a), 61.022; TEX. PENAL CODE § 30.05; Tex. Parks & Wildlife Dep’t, *Commercial Hunting Information and Applications*, supra note 3; 31 TEX. ADMIN. CODE §§ 56.5, 56.7\. [↩︎](#fnref125)
126. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; 31 TEX. ADMIN. CODE § 56.7\. [↩︎](#fnref126)
127. See supra notes 17–33, 49–66 and accompanying text. [↩︎](#fnref127)
128. TEX. PARKS & WILD. CODE § 61.022; TEX. PENAL CODE §§ 7.02, 30.05, 31.03; 31 TEX. ADMIN. CODE §§ 56.5, 56.7; TPWD SELF-EVALUATION REPORT, supra note 5, at 277\. [↩︎](#fnref128)
129. Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Oct. 3, 2012), supra note 7; Tex. Parks & Wildlife Dep’t, *Game Warden Field Notes* (Feb. 17, 2016), supra note 7; Tex. Parks & Wildlife Dep’t, *Texas Game Wardens Arrest Three for Illegal Nilgai Hunts* (Feb. 3, 2025), supra note 7; TPWD SELF-EVALUATION REPORT, supra note 5, at 277; Tex. Parks & Wildlife Dep’t, Work Session Transcript, supra note 8, at 272–328; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref129)
130. TEX. PARKS & WILDLIFE DEP’T, *LEGISLATIVE APPROPRIATIONS REQUEST FOR FISCAL YEARS 2026 AND 2027*, supra note 75, at 252–53; OKLA. S.B. 2095; COLO. REV. STAT. §§ 12-145-101 to -117; WYO. STAT. ANN. §§ 23-2-401 to -418; NEB. REV. STAT. § 37-356\. [↩︎](#fnref130)
131. TPWD SELF-EVALUATION REPORT, supra note 5, at 3–4; OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8\. [↩︎](#fnref131)
132. OCCUPATIONAL LICENSING REPORT, supra note 12, at 7–8; NEB. REV. STAT. § 37-356; OKLA. S.B. 2095 § 1(C), (I), (J); COLO. REV. STAT. §§ 12-145-108, 12-145-109\. [↩︎](#fnref132)
133. OKLA. S.B. 2095 § 1(C), (F), (I), (J); COLO. REV. STAT. §§ 12-145-104, 12-145-108, 12-145-109; 31 TEX. ADMIN. CODE § 56.5\. [↩︎](#fnref133)
134. TEX. PARKS & WILD. CODE § 43.042(a); COLO. REV. STAT. §§ 12-145-103(5)–(6), 12-145-104, 12-145-105\. [↩︎](#fnref134)
135. TEX. PARKS & WILD. CODE § 43.042(a). [↩︎](#fnref135)
136. TPWD SELF-EVALUATION REPORT, supra note 5, at 277; LEGISLATIVE BUDGET BD., *ARTICLE VI ISSUE DOCKET*, supra note 67, at 40–41\. [↩︎](#fnref136)
### The Profits of Attrition
URL: https://www.thecommonplace.press/the-profits-of-attrition/
Last updated: 2026-06-11T13:01:10.000Z
Russia’s war in Ukraine remains strategically wasteful even as it rewards many of the institutions, offices, and private actors responsible for administering it.[\[1\]](#fn1)

A war can fail as strategy yet persist as an institutional system, and that distinction has become one of the harder lessons of Russia’s war in Ukraine. The public record shows marginal advances bought at severe cost,[\[2\]](#fn2) whereas the internal economy of the war shows status protection, procurement flows, recruitment bonuses, death payments, missing-person proceedings, and extraction opportunities at the front.[\[3\]](#fn3) Russia’s war consumes the state’s strength at the same time it creates offices, contracts, and command positions through which officials, contractors, recruiters, and commanders can draw benefit from its continuation.[\[4\]](#fn4)

Russia remains dangerous because it holds territory,[\[5\]](#fn5) maintains manpower, controls weapons and energy revenue,[\[6\]](#fn6) possesses nuclear arms, and operates a state apparatus capable of absorbing losses that would strain many governments.[\[7\]](#fn7) The narrower point is that corruption should not be mistaken for imminent military collapse, because in several respects corruption functions as one of the mechanisms through which the Russian war system sustains itself.[\[8\]](#fn8)

The war persists for political reasons, and it also endures because the wartime economy rewards many of its administrators, binding territorial strategy to institutional profit.[\[9\]](#fn9)

## I. The Map Must Move

Putin’s war aims remain territorial, and the Kremlin needs a moving map because the political system beneath him has been organized around the demand for visible acquisition. At the St. Petersburg economic forum in June 2026, Putin rejected Volodymyr Zelenskyy’s offer of direct talks and repeated Russia’s demand for Donbas, Kherson, and Zaporizhzhia, according to The Guardian.[\[10\]](#fn10) Reuters has likewise reported that Putin continues to insist that the war cannot end unless Russia controls all of Donbas, even though Ukrainian forces still hold part of Donetsk.[\[11\]](#fn11)

That demand establishes the political logic for every officer beneath him, since the regime has defined victory in territorial terms and therefore requires the front to show forward movement.[\[12\]](#fn12) A static line communicates failure, a retreat communicates something worse, and even a small or dubious gain can be made politically useful if it preserves the central fiction that Russia advances, Ukraine weakens, and time favors Moscow.[\[13\]](#fn13)

The battlefield gives a harsher account of that fiction, since Reuters reported that Russian forces captured only 82 square kilometers of Ukrainian territory in May 2026, compared with 94 square kilometers in April and 25 square kilometers in March.[\[14\]](#fn14) Russia Matters, using Institute for the Study of War data, found that Russian forces registered a net loss of 93 square miles of Ukrainian territory from May 5 to June 3, 2026.[\[15\]](#fn15)

The Center for Strategic and International Studies, known as CSIS, has described a broader pattern in which Russia has paid an extraordinary price for minimal territorial gains.[\[16\]](#fn16) By the Center for Strategic and International Studies estimate, Russian forces suffered roughly 1.2 million casualties between February 2022 and December 2025, even as their major offensives progressed at exceptionally slow rates.[\[17\]](#fn17)

These figures expose the central contradiction, because the Kremlin requires visible progress, the battlefield yields only incremental gains, and the bureaucracy converts those increments into official reports that turn delay into apparent momentum.[\[18\]](#fn18)

## II. The Report Becomes the Battlefield

Battlefield reports ordinarily help political leaders understand reality, although Russia’s war has made them instruments through which political leadership can avoid reality. The Institute for the Study of War, known as ISW, has repeatedly identified inflated Russian battlefield claims, including Chief of the General Staff Valery Gerasimov’s April 2026 assertion that Russian forces had captured more than 1,700 square kilometers and 80 settlements since the start of the year.[\[19\]](#fn19) The Institute for the Study of War assessed that Russian forces had advanced only 381.5 square kilometers and seized 13 settlements over the same period, according to its April 21, 2026 campaign assessment.[\[20\]](#fn20)

The discrepancy matters because a false report creates an obligation inside the system after a commander claims progress, higher command repeats the claim, and the Kremlin absorbs the fiction into its political understanding of the war.[\[21\]](#fn21) Once that occurs, the system must keep acting as though the report describes reality, converting an inflated battlefield claim into a commitment that helps shape future operations.[\[22\]](#fn22)

The modern front makes that conversion easier, since Reuters has described a 1,200-kilometer battlefield shaped by drone warfare, small-unit infiltration, and difficult verification of control lines.[\[23\]](#fn23) In that environment, infiltration can be recorded as capture, a photograph can become proof, and a temporary presence can travel upward through the bureaucracy as an advance.[\[24\]](#fn24)

The map therefore functions as more than a record of the battlefield, becoming a political instrument through which the regime converts contested movement into reported momentum.[\[25\]](#fn25)

## III. Attrition Creates the Money Stream

The territorial fiction would matter less if the war were inexpensive, yet the scale of Russian war spending has created a political economy of its own. The Stockholm International Peace Research Institute, known as SIPRI, estimated that Russian federal war and military spending reached about 16 trillion rubles in 2025, equal to 7.5 percent of gross domestic product.[\[26\]](#fn26) The planned 2026 figure fell to 14.9 trillion rubles, or 6.3 percent of gross domestic product, although the Stockholm International Peace Research Institute noted that the annual budget would probably be amended, as it had been twice in 2025.[\[27\]](#fn27)

A state spending at that scale creates a market in which weapons, drones, fuel, uniforms, housing, construction, medical support, death benefits, recruitment bonuses, debt relief, and soldier pay all become channels for money.[\[28\]](#fn28) Under wartime corruption, channels designed to supply the front can acquire a secondary purpose, giving the war a private economy that rewards those positioned near procurement, administration, and command.[\[29\]](#fn29)

That is why the Defense Ministry purge matters, since Reuters reported in 2024 that Putin’s personnel changes were intended to address inefficiency and corruption within the ministry and to improve fiscal transparency in Russia’s war economy.[\[30\]](#fn30) The personnel shuffle followed the dismissal of Sergei Shoigu as defense minister and the appointment of the economist Andrei Belousov.[\[31\]](#fn31)

Efficiency supplied the public language for the purge, yet the deeper struggle concerned competition over rents and control of wartime money.[\[32\]](#fn32) Carnegie described the Defense Ministry purge as an unprecedented dismantling of Shoigu’s clan inside the Russian elite, writing that the purge redirected rent flows associated with the ministry and disrupted established patronage networks.[\[33\]](#fn33)

The purge leaves the basic system intact while revealing the rules that govern it, since corruption can be protected for years, managed through patronage, redirected during elite conflict, and punished when political circumstances shift.[\[34\]](#fn34) The structure endures even as the beneficiaries change.[\[35\]](#fn35)

## IV. The Purge Shows the Structure

The corruption cases are extensive enough to show a pattern rather than a sequence of isolated scandals. Radio Free Europe/Radio Liberty reported in April 2026 that investigators and prosecutors had targeted deputy defense ministers, senior officers, and top civilian officials for alleged corruption, fraud, and embezzlement after Shoigu’s ouster.[\[36\]](#fn36) Several of the most prominent cases involved figures believed to be close to Shoigu.[\[37\]](#fn37)

Ruslan Tsalikov’s case illustrates the scale, since Jamestown reported that the former first deputy defense minister was detained in March 2026 and that investigators treated long-running Defense Ministry corruption as the work of a criminal group.[\[38\]](#fn38) Other reporting described charges involving bribery, money laundering, embezzlement, and conspiracy.[\[39\]](#fn39)

Wartime spending creates the opportunity for corruption, and elite politics determines when that opportunity becomes a criminal case.[\[40\]](#fn40) Corruption remains a standing vulnerability that can be ignored while useful, exposed when convenient, and transferred when a new faction gains control of the flow, making each prosecution part of the same institutional system.[\[41\]](#fn41)

This pattern makes reform dangerous inside the system, because a genuine reformer threatens the income, protection, patronage, and survival that failure now supplies.[\[42\]](#fn42) Reform would impose a direct private cost on the men who benefit from waste by cutting off the payoffs that keep the system loyal.[\[43\]](#fn43)

## V. Drones and the New Procurement Prize

The rise of drone warfare intensifies the problem by concentrating procurement and control within a single domain. Russia has formalized drone warfare through a new Unmanned Systems Forces branch, creating a structure for drone development, procurement, training, and deployment.[\[44\]](#fn44) Such centralization may improve coordination, though it also creates a point of control with obvious value in a war increasingly shaped by unmanned systems.[\[45\]](#fn45)

The appointment controversy around Yury Vaganov shows the risk. The Institute for the Study of War, citing BBC Russia and Russian drone-sector sources, reported that Vaganov had reportedly been appointed to command Russia’s Unmanned Systems Forces, although Russian authorities had not officially confirmed the appointment.[\[46\]](#fn46) Vaganov is a former businessman and reported major supplier of first-person-view drones to Russian forces, making the alleged appointment a useful illustration of how battlefield procurement needs and private supplier interests can converge inside Russia’s new drone bureaucracy.[\[47\]](#fn47)

Because Russian authorities have not officially confirmed the appointment, the available reporting supports careful inference rather than a settled institutional conclusion.[\[48\]](#fn48) Russia’s new drone command may bring procurement authority, battlefield requirements, and private supplier interests into close proximity, creating value for those able to control it and risk for the soldiers dependent on what it produces.[\[49\]](#fn49)

Procurement corruption shapes battlefield performance by affecting the equipment, timing, and quality of what reaches the front.[\[50\]](#fn50) Inferior equipment leaves soldiers exposed, delayed deliveries deprive units of needed systems, monopoly suppliers can weaken quality and slow adaptation, and false claims about production standards can get men killed.[\[51\]](#fn51) In a drone war, corruption in small systems can produce large tactical losses.[\[52\]](#fn52)

## VI. The Soldier as Financial Object

The war’s money also moves toward the soldier, whose body becomes the object of contracts, bonuses, benefits, and claims. Russia has relied on high pay, bonuses, prisoner recruitment, foreign recruitment, tax breaks, debt relief, and other benefits to replenish forces while avoiding another large-scale mobilization.[\[53\]](#fn53) The Associated Press reported that regional enlistment bonuses can reach tens of thousands of dollars, with one Russian region offering about $50,000 in various bonuses, far above local average income.[\[54\]](#fn54)

In May 2026, Reuters reported that Putin signed a decree giving new Ukraine-war recruits and their spouses debt relief up to 10 million rubles if certain collection claims were already in force.[\[55\]](#fn55) The contract must last at least one year, tying the financial incentive directly to the soldier’s commitment to the war.[\[56\]](#fn56)

The French Institute of International Relations has called the resulting system “deathonomics.”[\[57\]](#fn57) Its 2026 report estimated that military salaries and death gratuities now reach 3 to 4 trillion rubles annually, close to 2 percent of Russia’s gross domestic product.[\[58\]](#fn58) It argues that wartime pay and death compensation have become a major economic stimulus in poorer regions and among low-income groups.[\[59\]](#fn59)

That shift alters the soldier’s status within the war economy, turning him into a fighter, a contract, a paycheck, a debt-relief claim, a family-benefit claim, a death-benefit claim, and a manpower statistic.[\[60\]](#fn60) To the state, he is a replaceable input, and for his family he may represent the largest payment the household will ever receive, with corrupt commanders able to treat him as another source of revenue.[\[61\]](#fn61) At that point, the war’s moral injury becomes an economic fact inside the system.[\[62\]](#fn62)

## VII. Survival for Sale

Reports from the front describe a system in which survival becomes something a soldier may have to purchase from his commander. The Week, summarizing reporting from The Economist, The Telegraph, PBS, and other sources, described Russian commanders charging soldiers up to £30,000 to keep them from front-line postings.[\[63\]](#fn63) It also reported that wounded soldiers have been forced to pay to be declared unfit for combat and that soldiers may be forced to buy their own gear under the pretext of raising money for drones, equipment, or food.[\[64\]](#fn64)

The same account described more extreme allegations, including commanders requisitioning bank cards and personal identification numbers before sending soldiers into battle, then declaring dead soldiers missing and withdrawing money from their accounts.[\[65\]](#fn65) Those claims should be treated as reported allegations rather than established findings in every unit, although they correspond to the larger incentive structure through which commanders control danger, paperwork, and access to money.[\[66\]](#fn66)

The Guardian summarized a Verstka investigation that identified 101 Russian servicemen accused of murdering, torturing, or fatally punishing their own comrades, with at least 150 deaths verified by the outlet.[\[67\]](#fn67) Verstka also linked some killings to financial extortion schemes in which commanders demanded payments to avoid suicide missions.[\[68\]](#fn68)

Those allegations place brutality inside the same system as the corruption it serves, because violence gives corrupt command its enforcement mechanism.[\[69\]](#fn69) Where a commander can send a soldier into a lethal assault, shape a missing-person report, or punish refusal with violence, he controls discipline, fear, paperwork, compensation, and the price of survival.[\[70\]](#fn70)

## VIII. The Missing Man

The missing category warrants particular attention because it shows how battlefield uncertainty can harden into bureaucratic advantage. Mediazona found that Russian courts received 20,000 claims in 2024 to declare people missing or dead, two and a half times the prior year’s figure.[\[71\]](#fn71) Many of those claims, it found, were filed by military commanders seeking to remove soldiers from personnel lists when death had not been officially confirmed.[\[72\]](#fn72)

For families, that classification can transform grief into an administrative proceeding, leaving relatives without reliable information, without compensation, and without a clear route through state paperwork.[\[73\]](#fn73) Combat produces some of this uncertainty by itself, because bodies remain unrecovered, records fail under battlefield conditions, and identification can take time.[\[74\]](#fn74)

The significance of Mediazona’s finding lies in the moment when that uncertainty becomes useful to the institution. At this scale, with commanders themselves moving cases through court, the missing category begins to serve the needs of the unit as much as the needs of the family.[\[75\]](#fn75) A soldier can disappear first on the front and then inside the record meant to account for him.[\[76\]](#fn76) The unit obtains room for replacement manpower, the family receives delay in the form of process, and the commander gains distance from the death his paperwork may help define.[\[77\]](#fn77)

## IX. Why Waste Can Persist

The standard explanation for Russian waste begins with incompetence, and that explanation has real force because failed assaults, inaccurate maps, weak logistics, poor training, defective drones, and inflated reports all describe a military system that often fails on its own stated terms.[\[78\]](#fn78) Yet incompetence alone remains incomplete as institutional analysis, since it identifies visible malfunction while leaving unresolved the harder question of why those practices have survived repeated battlefield exposure.[\[79\]](#fn79)

The more durable explanation lies in incentive, understood as the set of private rewards, bureaucratic protections, and political signals that allow visible failure to become manageable inside the chain of command.[\[80\]](#fn80) Reported progress protects commanders who keep men moving into assaults, the threat of deployment gives corrupt officers a market in fear, and inferior procurement rewards officials and suppliers whose profits depend on weak scrutiny.[\[81\]](#fn81) At the top of the system, wartime budget flows give elite factions streams of money worth defending, and the Kremlin’s demand for a moving map creates a market for optimistic reports until failure becomes too visible to absorb.[\[82\]](#fn82)

Territorial demands produce reported gains, and those reports justify further assaults that require more men, drones, fuel, equipment, bonuses, benefits, and replacements, creating additional points where money, authority, and paperwork can be captured.[\[83\]](#fn83) As extraction weakens battlefield performance, the system develops a greater need for exaggerated claims of progress, which then support the next round of assaults and the next set of opportunities for rent seeking.[\[84\]](#fn84) A military organized around effectiveness would try to escape that loop, whereas a corrupt military can adapt to it because the cycle supplies operational excuses along with private rewards.[\[85\]](#fn85)

## X. The War Machine as Cash Register

Russia’s war continues for reasons that exceed graft, because Putin’s imperial imagination, fear of defeat, territorial ambition, regime legitimacy, and hostility to Ukrainian sovereignty all remain central to the decision to keep fighting.[\[86\]](#fn86) Corruption alone did not cause the invasion, and it will not determine the war’s end by itself, although it helps explain why a destructive war can remain useful to many who administer the system.[\[87\]](#fn87)

The war remains a political project for Putin, yet for senior officials, contractors, recruiters, and front-line commanders it can also become a budgetary empire, a procurement market, a quota system, and a private economy of fear.[\[88\]](#fn88) Soldiers enter that economy as men bargaining under pressure, poverty, coercion, or desperation, and families are forced into disputes over whether the state records a son as dead, missing, useful, or forgotten.[\[89\]](#fn89)

The system’s stability lies in this perverse distribution of loss and reward, under which commanders can profit while men are spent, suppliers can benefit while equipment disappears, and the Kremlin can receive the reported progress it demands while credibility decays.[\[90\]](#fn90) The war can weaken Russia as a state while still compensating the particular offices, networks, and factions that have learned how to draw income, authority, or protection from its continuation.[\[91\]](#fn91)

Strategic irrationality therefore does not preclude institutional durability, because a war that depletes the country can still reward those positioned to administer the depletion.[\[92\]](#fn92) It can continue as long as the map must show movement, the money must circulate, and enough actors can profit from the space between territorial fiction and wartime expenditure.[\[93\]](#fn93) The marketplace inside the war has become Russia’s other front because it links battlefield attrition to institutional reward.[\[94\]](#fn94)

---

1. See Seth G. Jones & Riley McCabe, [Russia’s Grinding War in Ukraine](https://www.csis.org/analysis/russias-grinding-war-ukraine?ref=thecommonplace.press), Center for Strategic and International Studies (Jan. 27, 2026) (estimating nearly 1.2 million Russian casualties and describing Russia’s slow territorial gains); Julian Cooper, [A Budget for a Fifth Year of War: Military Spending in Russia’s Budget for 2026](https://www.sipri.org/publications/2026/sipri-insights-peace-and-security/budget-fifth-year-war-military-spending-russias-budget-2026?ref=thecommonplace.press), Stockholm International Peace Research Institute (Mar. 2026) (estimating Russian war and military spending); Mikhail Komin, [Kremlin Seeks Greater Battlefield Effectiveness With Military Purge](https://carnegieendowment.org/russia-eurasia/politika/2024/06/russia-defense-ministry-repressions?ref=thecommonplace.press), Carnegie Endowment for International Peace (June 6, 2024) (describing defense spending as a source of rent-seeking opportunities for elite groups). \[hereinafter Komin, Battlefield Effectiveness\]. [↩︎](#fnref1)
2. See Jones & McCabe, supra note 1; Dan Peleschuk, [Russia Bets on Air War as It Stumbles on the Battlefield](https://www.reuters.com/world/europe/russia-bets-air-war-it-stumbles-battlefield-2026-06-03/?ref=thecommonplace.press), Reuters (June 3, 2026); Russia Matters, [The Russia-Ukraine War Report Card, June 3, 2026](https://www.russiamatters.org/news/russia-ukraine-war-report-card/russia-ukraine-war-report-card-june-3-2026?ref=thecommonplace.press), Russia Matters (June 3, 2026). [↩︎](#fnref2)
3. See Cooper, supra note 1; Will Barker, [How Corruption Rules the Russian Front Line in Ukraine](https://theweek.com/defence/russian-army-corruption-ukraine?ref=thecommonplace.press), The Week (Apr. 7, 2026) (summarizing reporting on front-line extortion and the treatment of soldiers as a source of enrichment); Alla Konstantinova, [Russian Courts Flooded With 20,000 Missing or Dead Claims in 2024](https://en.zona.media/article/2025/02/03/missing?ref=thecommonplace.press), Mediazona (Feb. 4, 2025) (reporting a surge in missing-or-dead claims, many filed by military commanders). [↩︎](#fnref3)
4. See Jones & McCabe, supra note 1; Cooper, supra note 1; Komin, Battlefield Effectiveness, supra note 1; Barker, supra note 3; Konstantinova, supra note 3\. [↩︎](#fnref4)
5. See Russia Matters, supra note 2 (estimating that Russia controlled about 20 percent of Ukraine, including Crimea and pre-2022 occupied Donbas, as of June 2, 2026). [↩︎](#fnref5)
6. See Reuters, [Russia’s Oil and Gas Revenue Seen Up 39% Year-on-Year in May Thanks to Iran War](https://www.reuters.com/business/energy/russias-oil-gas-revenue-seen-up-39-yy-may-thanks-iran-war-2026-05-20/?ref=thecommonplace.press), Reuters (May 20, 2026) (reporting that Russian state oil and gas revenues account for about one-fifth of total budget income and that oil and gas revenue is the Kremlin’s main income source). [↩︎](#fnref6)
7. See Jones & McCabe, supra note 1 (stating that Russia still possesses nuclear weapons and a large military while describing indicators of declining power). [↩︎](#fnref7)
8. See Komin, Battlefield Effectiveness, supra note 1; Barker, supra note 3; Jones & McCabe, supra note 1\. [↩︎](#fnref8)
9. See Luke Harding & agencies, [Putin Rejects Zelenskyy’s Offer to Meet and Reaffirms Ukraine War Aims](https://www.theguardian.com/world/2026/jun/05/putin-rejects-zelenskyys-offer-to-meet-and-reaffirms-ukraine-war-aims?ref=thecommonplace.press), The Guardian (June 5, 2026); Guy Faulconbridge & Andrew Osborn, [Putin Taps Civilian Economist to Run Defense, Replacing Shoigu in Surprise Move](https://www.reuters.com/world/europe/putin-proposes-sacking-defence-minister-shoigu-parliament-says-2024-05-12/?ref=thecommonplace.press), Reuters (May 13, 2024); Komin, Battlefield Effectiveness, supra note 1\. [↩︎](#fnref9)
10. See Harding & agencies, supra note 9\. [↩︎](#fnref10)
11. See Peleschuk, supra note 2 (reporting that Putin has insisted the war cannot end unless Russia controls all of Donbas and that Ukrainian forces still hold about one-fifth of Donetsk). [↩︎](#fnref11)
12. See Harding & agencies, supra note 9; Peleschuk, supra note 2\. [↩︎](#fnref12)
13. See Harding & agencies, supra note 9; Peleschuk, supra note 2; Institute for the Study of War, [Russian Offensive Campaign Assessment, April 21, 2026](https://www.criticalthreats.org/analysis/russian-offensive-campaign-assessment-april-21-2026?ref=thecommonplace.press), Critical Threats (Apr. 21, 2026). [↩︎](#fnref13)
14. See Peleschuk, supra note 2 (reporting Black Bird Group data showing Russian forces captured 82 square kilometers in May 2026, 94 square kilometers in April, and 25 square kilometers in March). [↩︎](#fnref14)
15. See Russia Matters, supra note 2 (using Institute for the Study of War data to report a net Russian territorial loss of 93 square miles from May 5 to June 3, 2026). [↩︎](#fnref15)
16. See Jones & McCabe, supra note 1\. [↩︎](#fnref16)
17. See id. (estimating about 1.2 million Russian casualties from February 2022 through December 2025 and stating that Russian forces advanced at historically slow rates). [↩︎](#fnref17)
18. See id.; Peleschuk, supra note 2; Russia Matters, supra note 2; Institute for the Study of War, supra note 13\. [↩︎](#fnref18)
19. See Institute for the Study of War, supra note 13 (reporting Gerasimov’s claim that Russian forces seized more than 1,700 square kilometers and 80 settlements since early 2026). [↩︎](#fnref19)
20. See id. (reporting that the Institute for the Study of War assessed Russian advances of 381.5 square kilometers and 13 settlements over the same period). [↩︎](#fnref20)
21. See id. (describing Gerasimov’s claims as contrary to available evidence and noting additional exaggerated claims about specific parts of the front). [↩︎](#fnref21)
22. See id.; Peleschuk, supra note 2\. [↩︎](#fnref22)
23. See Peleschuk, supra note 2 (describing a drone-saturated “kill zone” along the 1,200-kilometer front, a blurred gray zone, intermingled small troop pockets, and difficulty assessing concrete gains and losses). [↩︎](#fnref23)
24. See id.; Institute for the Study of War, supra note 13\. [↩︎](#fnref24)
25. See Institute for the Study of War, supra note 13; Peleschuk, supra note 2\. [↩︎](#fnref25)
26. See Cooper, supra note 1 (estimating Russian federal war and military spending at about 16 trillion rubles in 2025, or 7.5 percent of gross domestic product). [↩︎](#fnref26)
27. See id. (estimating planned 2026 military expenditure at 14.9 trillion rubles, or 6.3 percent of gross domestic product, with likely later budget amendment). [↩︎](#fnref27)
28. See Cooper, supra note 1; Mark Trevelyan, [Putin Extends Defence Ministry Purge, Hands Job to a Relative](https://www.reuters.com/world/europe/putin-clears-out-deputy-defence-ministers-appoints-his-relative-2024-06-17/?ref=thecommonplace.press), Reuters (June 17, 2024); Dasha Litvinova, [Russia Offers Incentives for Fighting in Ukraine, but Some Recruits Complain of Coercion](https://apnews.com/article/russia-ukraine-war-recruits-foreigners-78285219e6e10be694e8e1e007c5b6e4?ref=thecommonplace.press), AP News (Jan. 26, 2026); Jekaterīna Golubkova, [Russia’s Putin Provides Debt Relief to New Ukraine War Recruits and Their Families](https://www.reuters.com/world/russias-putin-provides-debt-relief-new-ukraine-war-recruits-their-families-2026-05-26/?ref=thecommonplace.press), Reuters (May 26, 2026). [↩︎](#fnref28)
29. See Komin, Battlefield Effectiveness, supra note 1; Barker, supra note 3; Trevelyan, supra note 28\. [↩︎](#fnref29)
30. See Trevelyan, supra note 28 (reporting that Putin signaled a desire to clear waste and corruption from the ministry and that Leonid Gornin’s role included increasing transparency of financial flows and ensuring efficient budget spending). [↩︎](#fnref30)
31. See id.; Faulconbridge & Osborn, supra note 9 (reporting the replacement of Shoigu with Belousov and the effort to subject defense spending to greater scrutiny after allegations against Timur Ivanov). [↩︎](#fnref31)
32. See Komin, Battlefield Effectiveness, supra note 1\. [↩︎](#fnref32)
33. See Mikhail Komin, [Unprecedented Defense Ministry Purge Sparks Concern in Russian Elite](https://carnegieendowment.org/russia-eurasia/politika/2025/01/shoigu-clan-repressions?ref=thecommonplace.press), Carnegie Endowment for International Peace (Jan. 31, 2025) (describing the purge as redirecting rent flows, dismantling Shoigu’s clan, disrupting several major rent flows, and dividing newly available rent flows among elite groups). \[hereinafter Komin, Shoigu Clan\]. [↩︎](#fnref33)
34. See Komin, Battlefield Effectiveness, supra note 1; Komin, Shoigu Clan, supra note 33\. [↩︎](#fnref34)
35. See Komin, Shoigu Clan, supra note 33\. [↩︎](#fnref35)
36. See Mike Eckel & Wojtek Grojec, [Knives Out 2.0: What’s Going On at Russia’s Defense Ministry?](https://www.rferl.org/a/russia-defense-ministry-corruption-investigations-shoigu-putin/33732103.html?ref=thecommonplace.press), Radio Free Europe/Radio Liberty (Apr. 14, 2026) (reporting that investigators and prosecutors targeted deputy defense ministers, senior officers, and top civilian officials for alleged corruption, fraud, and embezzlement). [↩︎](#fnref36)
37. See id. (reporting that several prominent cases involved figures believed to be linked to Shoigu). [↩︎](#fnref37)
38. See Alex Horobets, [Tsalikov’s Detention Marks Major Blow to Shoigu’s Inner Circle](https://jamestown.org/tsalikovs-detention-marks-major-blow-to-shoigus-inner-circle/?ref=thecommonplace.press), Jamestown Foundation (Mar. 31, 2026) (reporting Tsalikov’s detention and charges involving a criminal organization). [↩︎](#fnref38)
39. See id. (reporting charges involving money laundering, bribery, large-scale misappropriation, and allegations of more than 6.6 billion rubles embezzled through inflated clothing procurement). [↩︎](#fnref39)
40. See Cooper, supra note 1; Komin, Battlefield Effectiveness, supra note 1; Komin, Shoigu Clan, supra note 33\. [↩︎](#fnref40)
41. See Komin, Battlefield Effectiveness, supra note 1; Komin, Shoigu Clan, supra note 33; Horobets, supra note 38\. [↩︎](#fnref41)
42. See Komin, Battlefield Effectiveness, supra note 1; Eckel & Grojec, supra note 36\. [↩︎](#fnref42)
43. See id.; Komin, Shoigu Clan, supra note 33\. [↩︎](#fnref43)
44. See Reuters, [Russia’s Putin Calls for Quick Development of Drone Forces](https://www.reuters.com/business/aerospace-defense/russias-putin-calls-quick-development-drone-forces-2025-06-12/?ref=thecommonplace.press), Reuters (June 12, 2025) (reporting Putin’s call for rapid development and deployment of separate drone forces within the military); Hlib Parfonov, [Russia’s Unmanned Systems Forces Become Wildcard in Moscow’s Military Modernization](https://jamestown.org/russias-unmanned-systems-forces-become-wildcard-in-moscows-military-modernization/?ref=thecommonplace.press), Jamestown Foundation (Apr. 2, 2026) (describing the Unmanned Systems Forces as an independent branch with a centralized command structure overseeing development, procurement, training, and deployment). [↩︎](#fnref44)
45. See Parfonov, supra note 44\. [↩︎](#fnref45)
46. See Institute for the Study of War, “Russian Offensive Campaign Assessment, December 26, 2025,” *Critical Threats* (Dec. 26, 2025) (citing BBC Russia and Russian drone-sector sources reporting Vaganov’s appointment and describing his drone-supplier background); Meduza, “‘Yura the Toilet’: Businessman with No Military Experience Reportedly Appointed to Lead Russia’s Drone Forces” (Dec. 26, 2025) (noting that Russian authorities had not officially announced the appointment). [↩︎](#fnref46)
47. See Institute for the Study of War, “Russian Offensive Campaign Assessment, December 26, 2025,” *Critical Threats* (Dec. 26, 2025) (describing Vaganov as a former plumbing-fixtures businessman who became one of the main first-person-view drone suppliers to the Russian military).been officially announced). [↩︎](#fnref47)
48. See Meduza, supra note 47\. [↩︎](#fnref48)
49. See Institute for the Study of War, supra note 46; Meduza, supra note 47; Parfonov, supra note 44\. [↩︎](#fnref49)
50. See Jones & McCabe, supra note 1 (identifying corruption, poor tactics, poor training, and other factors as possible explanations for high Russian casualties and battlefield-performance problems); Parfonov, supra note 44\. [↩︎](#fnref50)
51. See Jones & McCabe, supra note 1; Institute for the Study of War, supra note 46\. [↩︎](#fnref51)
52. See Parfonov, supra note 44; Jones & McCabe, supra note 1\. [↩︎](#fnref52)
53. See Litvinova, supra note 28 (reporting high pay, benefits, prisoner recruitment, foreign recruitment, and regional bonuses); Golubkova, supra note 28 (reporting debt relief for new Ukraine-war recruits and their spouses). [↩︎](#fnref53)
54. See Litvinova, supra note 28 (reporting regional bonuses including about $50,000 in Khanty-Mansi). [↩︎](#fnref54)
55. See Golubkova, supra note 28 (reporting debt relief up to 10 million rubles for qualifying recruits and spouses). [↩︎](#fnref55)
56. See id. (reporting that the contract must last at least one year). [↩︎](#fnref56)
57. See Vladislav Inozemtsev, [Deathonomics: The Social, Political, and Economic Costs of War in Russia](https://www.ifri.org/en/papers/deathonomics-social-political-and-economic-costs-war-russia?ref=thecommonplace.press), French Institute of International Relations (Feb. 9, 2026) (describing “deathonomics”). [↩︎](#fnref57)
58. See id. (estimating that military salaries and death gratuities reach 3 to 4 trillion rubles annually, close to 2 percent of gross domestic product). [↩︎](#fnref58)
59. See id. (describing military service as one of Russia’s highest-paying professions by the end of 2023 and examining the social and economic effects of wartime military compensation). [↩︎](#fnref59)
60. See Litvinova, supra note 28; Golubkova, supra note 28; Inozemtsev, supra note 57\. [↩︎](#fnref60)
61. See Inozemtsev, supra note 57; Barker, supra note 3\. [↩︎](#fnref61)
62. See Barker, supra note 3; Inozemtsev, supra note 57\. [↩︎](#fnref62)
63. See Barker, supra note 3 (summarizing reports that commanders charge up to £30,000 to spare soldiers from front-line postings). [↩︎](#fnref63)
64. See id. (summarizing reports that wounded soldiers pay to be declared unfit and that troops must buy their own gear or contribute under pretexts involving drones, equipment, or food). [↩︎](#fnref64)
65. See id. (describing allegations that commanders requisition bank cards and personal identification numbers, declare dead soldiers missing, and withdraw money from their accounts). [↩︎](#fnref65)
66. See id.; Pjotr Sauer, [Russian Army Chiefs Torturing and Executing Soldiers Who Refuse to Fight in Ukraine, Report Says](https://www.theguardian.com/world/2025/oct/30/russian-army-chiefs-torturing-and-executing-soldiers-who-refuse-to-fight-in-ukraine-report-says?ref=thecommonplace.press), The Guardian (Oct. 30, 2025). [↩︎](#fnref66)
67. See Sauer, supra note 66 (summarizing Verstka’s identification of 101 accused servicemen and at least 150 verified deaths). [↩︎](#fnref67)
68. See id. (reporting that Verstka linked several killings to financial extortion schemes in which commanders demanded payments to avoid suicide missions). [↩︎](#fnref68)
69. See id.; Barker, supra note 3\. [↩︎](#fnref69)
70. See Sauer, supra note 66; Barker, supra note 3; Konstantinova, supra note 3\. [↩︎](#fnref70)
71. See Konstantinova, supra note 3 (reporting that Russian courts received 20,000 claims in 2024 to declare people missing or dead, 2.5 times the prior year). [↩︎](#fnref71)
72. See id. (reporting that many such claims were filed by military-unit commanders to exclude soldiers who died in combat without official death confirmation from personnel lists). [↩︎](#fnref72)
73. See id. (reporting that families can be left without money and information and that missing-person claims can block immediate death payments). [↩︎](#fnref73)
74. See id. [↩︎](#fnref74)
75. See id. [↩︎](#fnref75)
76. See id. [↩︎](#fnref76)
77. See id. (reporting that military units seek to remove missing soldiers from personnel lists to recruit replacements and that recognition as missing can reduce or stop payments to families). [↩︎](#fnref77)
78. See Jones & McCabe, supra note 1 (listing poor tactics, training, corruption, low morale, and related factors as possible explanations for Russian casualties and performance); Institute for the Study of War, supra note 13; Peleschuk, supra note 2\. [↩︎](#fnref78)
79. See Jones & McCabe, supra note 1; Komin, Battlefield Effectiveness, supra note 1; Barker, supra note 3\. [↩︎](#fnref79)
80. See Cooper, supra note 1; Komin, Battlefield Effectiveness, supra note 1; Komin, Shoigu Clan, supra note 33; Barker, supra note 3; Institute for the Study of War, supra note 13\. [↩︎](#fnref80)
81. See Barker, supra note 3; Institute for the Study of War, supra note 13; Jones & McCabe, supra note 1\. [↩︎](#fnref81)
82. See Cooper, supra note 1; Komin, Battlefield Effectiveness, supra note 1; Komin, Shoigu Clan, supra note 33; Harding & agencies, supra note 9; Peleschuk, supra note 2\. [↩︎](#fnref82)
83. See supra notes 9–15, 26–33, 44, 53–72\. [↩︎](#fnref83)
84. See Jones & McCabe, supra note 1; Institute for the Study of War, supra note 13; Barker, supra note 3\. [↩︎](#fnref84)
85. See Komin, Battlefield Effectiveness, supra note 1; Barker, supra note 3\. [↩︎](#fnref85)
86. See Harding & agencies, supra note 9; Peleschuk, supra note 2; Jones & McCabe, supra note 1\. [↩︎](#fnref86)
87. See Komin, Battlefield Effectiveness, supra note 1; Komin, Shoigu Clan, supra note 33; Barker, supra note 3\. [↩︎](#fnref87)
88. See Trevelyan, supra note 28; Komin, Shoigu Clan, supra note 33; Litvinova, supra note 28; Barker, supra note 3; Konstantinova, supra note 3\. [↩︎](#fnref88)
89. See Litvinova, supra note 28; Golubkova, supra note 28; Barker, supra note 3; Konstantinova, supra note 3\. [↩︎](#fnref89)
90. See Jones & McCabe, supra note 1; Cooper, supra note 1; Komin, Battlefield Effectiveness, supra note 1; Barker, supra note 3\. [↩︎](#fnref90)
91. See id.; Komin, Shoigu Clan, supra note 33\. [↩︎](#fnref91)
92. See Jones & McCabe, supra note 1; Cooper, supra note 1; Komin, Battlefield Effectiveness, supra note 1; Barker, supra note 3\. [↩︎](#fnref92)
93. See supra notes 9–18, 26–43, 63–77\. [↩︎](#fnref93)
94. See supra notes 1–4, 83–93\. [↩︎](#fnref94)
### No Implied Disarmament: State-Imputed Exclusion and Private-Property Carry Defaults After Bruen
URL: https://www.thecommonplace.press/no-implied-disarmament-state-imputed-exclusion-and-private-property-carry-defaults-after-bruen/
Last updated: 2026-06-03T18:52:27.000Z
## Table of Contents

- [Introduction](#introduction)
- [I. The Question in Wolford](#i-the-question-in-wolford)
- [II. Public Carry After Heller, McDonald, Bruen, and Rahimi](#ii-public-carry-after-heller-mcdonald-bruen-and-rahimi)
- [III. State-Imputed Exclusion and the Storefront Threshold](#iii-state-imputed-exclusion-and-the-storefront-threshold)
- [IV. Trespass, Implied License, and Owner Choice](#iv-trespass-implied-license-and-owner-choice)
- [V. The Historical Record](#v-the-historical-record)
- [VI. The Contrary Arguments](#vi-the-contrary-arguments)
- [VII. The Rule](#vii-the-rule)
- [Conclusion](#conclusion)
- [Notes](#notes)

## Introduction

The Second Amendment protects “the right of the people to keep and bear Arms.”[\[1\]](#fn1) In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that this guarantee protects the right of ordinary, law-abiding citizens to carry handguns outside the home for self-defense.[\[2\]](#fn2) The question now before the Court in Wolford v. Lopez concerns the point at which that right meets private property held open to the public.[\[3\]](#fn3)

Hawaii answered that question through Act 52, signed on June 2, 2023.[\[4\]](#fn4) The Act makes licensed firearm carry unlawful on another’s private property unless the owner, lessee, operator, or manager gives express authorization.[\[5\]](#fn5) That authorization may come through unambiguous written or verbal permission, or through clear and conspicuous signage allowing firearms.[\[6\]](#fn6) Without that authorization, entry while armed is a misdemeanor.[\[7\]](#fn7) New York adopted a similar rule in its Concealed Carry Improvement Act.[\[8\]](#fn8)

This Article argues that a State may enforce an owner’s expressed decision to exclude firearms.[\[9\]](#fn9) It may enforce posted conditions of entry, verbal instructions, lease provisions, membership rules, and ordinary trespass principles.[\[10\]](#fn10) It may also define reasonable forms of notice.[\[11\]](#fn11) What it may not do is convert owner silence into a firearms-specific criminal command on private property held open to the public. When the State supplies the exclusion and attributes it to every silent proprietor, it burdens public carry while presenting the burden as private choice.[\[12\]](#fn12)

How the rule is named helps identify its operation. For purposes of this Article, the challenged rule is referred to as “state-imputed exclusion.”[\[13\]](#fn13) The term describes a law that attributes a no-carry decision to private owners who have said nothing.[\[14\]](#fn14) The rule has also acquired a more vivid name, the vampire rule.[\[15\]](#fn15) Petitioners have used that phrase because the statute treats the armed citizen like the folkloric figure who may enter only after invitation.[\[16\]](#fn16) The image remains useful so long as it reflects, rather than overshadows, the legal limits. Historically, the threshold for a household and that for a storefront have never been identical.[\[17\]](#fn17) Entry into a dwelling ordinarily requires consent; by contrast, a public-facing business ordinarily extends a license to enter for lawful purposes unless the owner withdraws or conditions that license.[\[18\]](#fn18)[\[19\]](#fn19)

At its core, the distinction is that owner-controlled exclusion operates through established principles of property law, while state-imputed exclusion imposes a firearms-specific criminal default.[\[20\]](#fn20) The owner’s decisions to exclude remain valid exercises of private authority.[\[21\]](#fn21) By contrast, when the State attributes a no-carry preference to every silent proprietor and penalizes licensed carriers for failing to secure affirmative permission, it transforms property law into an instrument for enforcing a statewide no-carry default, as opposed to reflecting actual owner intent.[\[22\]](#fn22) That approach narrows the right recognized in Bruen while presenting the burden as if it were the owner’s.[\[23\]](#fn23)

This Article proceeds in seven parts. Part I describes Hawaii’s rule and the split among the courts of appeals.[\[24\]](#fn24) Part II sets out the governing Second Amendment framework after Heller, McDonald, Bruen, and Rahimi.[\[25\]](#fn25) Part III explains why the vampire-rule label captures the statute’s threshold operation.[\[26\]](#fn26) Part IV develops the property-law distinction between implied license and owner exclusion.[\[27\]](#fn27) Part V tests the historical analogues offered to defend the modern default rule. Part VI answers the principal contrary arguments. Part VII states the rule that property held open to the public carries an implied license to enter for lawful purposes unless the owner gives reasonably clear notice excluding firearms.[\[28\]](#fn28)

## I. The Question in Wolford

Hawaii’s statute speaks in direct terms. A licensed carrier may not intentionally, knowingly, or recklessly enter or remain on another person’s private property while carrying a firearm unless the owner, lessee, operator, or manager has provided express authorization.[\[29\]](#fn29) The statute applies to private property of another person. The question presented in Wolford concerns that rule as applied to private property held open to the public.[\[30\]](#fn30) A store, restaurant, gas station, hotel, laundromat, church, parking lot, or similar place falls within the ordinary reach of public life, yet the licensed carrier must obtain affirmative permission before entering while armed.[\[31\]](#fn31)

The legislature’s findings help explain the statute’s design.[\[32\]](#fn32) Act 52 says it respects private owners’ choices, then states that community sentiment and broadly shared preferences support a default rule under which private entities must opt in to authorize licensed carry.[\[33\]](#fn33) That finding identifies the constitutional problem. The legislature supplied the default before any owner acted.[\[34\]](#fn34) It established disarmament as the background rule and imposed criminal consequences on the patron for the owner’s silence.[\[35\]](#fn35)

New York’s statute used the equivalent structure.[\[36\]](#fn36) It made it a crime to enter or remain on private property with a firearm, rifle, or shotgun when the person knows or reasonably should know that the owner or lessee has not permitted possession by clear signage or express consent.[\[37\]](#fn37) Like Hawaii, New York turned the absence of permission into criminal exposure.[\[38\]](#fn38)

The courts of appeals divided over that approach.[\[39\]](#fn39) At the preliminary-injunction stage, the Ninth Circuit reversed the injunction as to Hawaii’s private-property rule.[\[40\]](#fn40) The panel recognized that the rule altered the prior default and that the regulated conduct likely falls within the Second Amendment’s text.[\[41\]](#fn41)[\[42\]](#fn42) It nonetheless concluded that plaintiffs were unlikely to succeed because the State had shown sufficient historical support.[\[43\]](#fn43)

The Second Circuit reached the opposite conclusion in Christian v. James.[\[44\]](#fn44) There, the court affirmed a permanent injunction against New York’s private-property provision as applied to property open to the public.[\[45\]](#fn45) The court held that New York had failed to carry its burden under Bruen because the challenged rule did not fit the Nation’s historical tradition of firearm regulation.[\[46\]](#fn46) It also rejected the Ninth Circuit’s reading of the relevant historical materials.[\[47\]](#fn47)

The split presents a limited question.[\[48\]](#fn48) May the State convert owner silence into a criminal no-carry command on property otherwise open to the public? The better answer is no.[\[49\]](#fn49) The State may protect private exclusion.[\[50\]](#fn50) It may not impute exclusion to every owner and then call that imputation trespass law.[\[51\]](#fn51)

## II. Public Carry After Heller, McDonald, Bruen, and Rahimi

Before considering Hawaii’s private-property default, it is necessary to establish the right against which that default must be measured. The Supreme Court’s modern Second Amendment cases proceed in sequence from possession in the home, to incorporation against the States, to carry outside the home, and finally to the historical method used to evaluate later regulations.[\[52\]](#fn52) That sequence supplies the framework for the question in Wolford.[\[53\]](#fn53)

In District of Columbia v. Heller, the Court considered whether the Second Amendment protects an individual right to possess a firearm apart from service in a militia.[\[54\]](#fn54) The challenged District of Columbia law prohibited the possession of usable handguns in the home, and the Court resolved the case through an examination of the Amendment’s text, the ordinary meaning of “keep” and “bear,” the prefatory clause, founding-era sources, post-ratification commentary, and nineteenth-century cases.[\[55\]](#fn55) That inquiry led the Court to recognize an individual right to possess arms for lawful purposes, with self-defense described as central to the right.[\[56\]](#fn56) Because the District’s law prevented that use in the home, the Court held that it violated the Second Amendment.[\[57\]](#fn57)

Two years later, McDonald v. City of Chicago addressed whether the right recognized in Heller binds the States.[\[58\]](#fn58) The case arose from handgun restrictions adopted by Chicago and Oak Park after Heller.[\[59\]](#fn59) In holding that the Fourteenth Amendment makes the Second Amendment applicable to the States, the Court traced the right to keep and bear arms through American history, including Reconstruction-era concerns about state efforts to disarm freedmen.[\[60\]](#fn60) After McDonald, the right recognized in Heller became enforceable against state and local governments.[\[61\]](#fn61)

Bruen then addressed the right outside the home.[\[62\]](#fn62) New York had required applicants for public-carry licenses to show proper cause before receiving permission to carry a handgun in public.[\[63\]](#fn63) The Court held that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.[\[64\]](#fn64) It also rejected the means-end framework that many lower courts had used after Heller and McDonald.[\[65\]](#fn65) Under Bruen, once the Second Amendment’s text covers the conduct, the government must show that its regulation is consistent with the Nation’s historical tradition of firearm regulation.[\[66\]](#fn66)

Applied to Wolford, Bruen requires a court to identify the regulated conduct with care.[\[67\]](#fn67) The conduct is licensed handgun carry by an ordinary, law-abiding citizen while entering property held open to the public.[\[68\]](#fn68) That setting differs from a home, farm, enclosed field, or other premises closed to ordinary public entry.[\[69\]](#fn69) Stores, restaurants, gas stations, hotels, laundromats, and similar establishments are privately owned, yet they operate through a general invitation to the public.[\[70\]](#fn70) Their private ownership raises a property-law question about the owner’s power to exclude.[\[71\]](#fn71) It does not, without additional facts, remove the conduct from public carry.[\[72\]](#fn72) Until the owner chooses to exclude firearms, the carrier remains engaged in public carry of the kind Bruen protects.[\[73\]](#fn73)

If the right recognized in Bruen were limited to the storefront threshold, its practical force would be sharply diminished.[\[74\]](#fn74) A licensed carrier may carry lawfully on a public sidewalk.[\[75\]](#fn75) Under Hawaii’s rule, the same person commits a misdemeanor by entering an ordinary store while armed unless the owner has affirmatively authorized firearms.[\[76\]](#fn76) Nothing about the person, firearm, license, or conduct has changed in any meaningful constitutional sense. The change in legal status arises from the State’s decision to make disarmament the default rule for public-facing private property.[\[77\]](#fn77)

United States v. Rahimi did not retreat from Bruen’s framework.[\[78\]](#fn78) The Court there considered a federal statute that disarmed a person subject to a domestic-violence restraining order after a court found that he posed a credible threat to another’s physical safety.[\[79\]](#fn79) The Court upheld the statute as applied to Rahimi and explained that historical analogy asks how and why the modern law burdens the right.[\[80\]](#fn80) The restriction approved in Rahimi was tied to judicial process, a finding of dangerousness, and a temporary disarmament rule directed at a person found to pose a threat.[\[81\]](#fn81)

Hawaii’s private-property default lacks those features.[\[82\]](#fn82) It contains no comparable judicial finding, individualized threat determination, or conduct indicating danger.[\[83\]](#fn83) It applies to licensed carriers as a class and reaches the ordinary locations of public life.[\[84\]](#fn84) The statute therefore burdens public carry in a different manner and for a different reason than the law upheld in Rahimi.[\[85\]](#fn85) The federal law in Rahimi addressed a person found dangerous by a court.[\[86\]](#fn86) Hawaii’s law addresses the licensed carrier as such and treats his entry onto public-facing private property as unlawful unless the owner affirmatively permits it.[\[87\]](#fn87)

Taken together, Heller, McDonald, Bruen, and Rahimi provide the relevant rule.[\[88\]](#fn88) The Second Amendment protects an individual right to keep and bear arms; that right applies against the States; it includes public carry for self-defense; and a State that burdens conduct covered by the Amendment must justify its law through text, history, and tradition.[\[89\]](#fn89) Hawaii’s private-property default therefore cannot be sustained merely by invoking private ownership.[\[90\]](#fn90) The State must show a historical tradition allowing it to treat owner silence as a criminal no-carry command on property otherwise held open to the public.[\[91\]](#fn91)

## III. State-Imputed Exclusion and the Storefront Threshold

The vampire-rule label helps describe the statute’s operation, but it should be used only after the legal setting is apparent.[\[92\]](#fn92) Petitioners use the phrase because Hawaii’s rule treats the armed citizen as someone who may enter property held open to the public only after invitation.[\[93\]](#fn93) In that limited sense, the phrase is accurate. The statute takes a permission structure associated with entry into a home and carries it into the marketplace, where property law has traditionally treated public-facing premises differently.[\[94\]](#fn94)

The difference begins with the character of the premises.[\[95\]](#fn95) A dwelling does not invite the public to enter merely by existing, and the homeowner need not announce conditions in advance before excluding strangers.[\[96\]](#fn96) Public-facing businesses operate under another baseline.[\[97\]](#fn97) Stores, restaurants, gas stations, hotels, laundromats, and similar establishments remain privately owned, and their owners retain authority to limit entry, impose conditions, or revoke permission.[\[98\]](#fn98) Their ordinary operation, however, extends a general invitation to members of the public who enter for lawful purposes.[\[99\]](#fn99) That general invitation is the point at which the Second Amendment question arises, because licensed carry is already lawful public conduct after Bruen unless the owner chooses to exclude it.[\[100\]](#fn100)

Hawaii’s statute changes that baseline for one class of entrants and one form of protected conduct.[\[101\]](#fn101) A person may enter a gas station to buy fuel, a grocery store to buy food, or a laundromat to wash clothes under the ordinary invitation those businesses extend to the public.[\[102\]](#fn102) If that same person carries under a state license, the ordinary invitation disappears unless the owner has provided express authorization.[\[103\]](#fn103) The statute therefore treats the public-facing business like a dwelling at the very moment the licensed carrier crosses the threshold.[\[104\]](#fn104) Exclusion in this context reflects no posted sign, verbal instruction, lease term, membership condition, or explicit demand to leave.[\[105\]](#fn105) It reflects the State’s choice to treat silence as a criminal no-carry command.[\[106\]](#fn106)

That shift gives the vampire rule its constitutional significance.[\[107\]](#fn107) Bruen recognized a right to carry handguns outside the home for self-defense.[\[108\]](#fn108) Public carry includes movement through the ordinary places where public life occurs, many of which are privately owned but open to lawful entry.[\[109\]](#fn109) If the right exists on streets and sidewalks but disappears at the entrances to stores, restaurants, gas stations, hotels, and parking lots unless each owner gives affirmative permission, then the right has been reduced to a narrow path between destinations.[\[110\]](#fn110) At that point, the State is no longer enforcing an actual owner’s decision.[\[111\]](#fn111) It is substituting its own policy judgment, supplying the exclusion in advance, and attributing it to the proprietor regardless of any expressed intent.[\[112\]](#fn112)

Hawaii’s strongest answer begins with the owner’s right to exclude.[\[113\]](#fn113) That premise is sound as a statement of private authority.[\[114\]](#fn114) An owner may exclude firearms, condition entry, direct agents to deny admission, revoke permission after entry, and rely on ordinary trespass principles against a carrier who disregards those terms.[\[115\]](#fn115) The question presented arises before any such owner-specific act.[\[116\]](#fn116) It asks whether the State may attribute an exclusion decision to every owner who has remained silent and then punish the licensed carrier for failing to obtain affirmative permission that ordinary entrants do not need.[\[117\]](#fn117)

Read in that context, the vampire rule is best understood as a description of state-imputed exclusion because it turns on who gives legal force to the carrier’s exclusion at the threshold.[\[118\]](#fn118) A posted no-guns sign, a verbal instruction by a manager, or another owner-specific condition of entry communicates private choice by tying the exclusion to an act of the proprietor.[\[119\]](#fn119) A silence-as-exclusion statute operates differently.[\[120\]](#fn120) It gives legal force to private silence and imposes a criminal consequence selected by the State.[\[121\]](#fn121) The constitutional inquiry therefore turns on the source of the no-carry command.[\[122\]](#fn122) Owner-supplied exclusion falls within ordinary property and trespass law.[\[123\]](#fn123) State-supplied exclusion through a firearms-specific default burdens public carry and must be justified under Bruen’s historical-tradition test.[\[124\]](#fn124)

## IV. Trespass, Implied License, and Owner Choice

Property law supplies the proper baseline for understanding Hawaii’s statute.[\[125\]](#fn125) The ordinary law of trespass begins with the owner’s authority to decide who may enter and under what conditions.[\[126\]](#fn126) That authority has different consequences depending on the character of the premises.[\[127\]](#fn127) A home, farm, plantation, enclosed field, or private club does not carry the same legal invitation as an inn, public house, shop, restaurant, gas station, hotel, or similar establishment held open to ordinary public entry.[\[128\]](#fn128) In the latter setting, the owner retains the power to limit or revoke entry, but the premises themselves are offered to the public for lawful purposes.[\[129\]](#fn129) It is from that invitation, rather than from a general right to enter all private property, that the implied-license principle arises.[\[130\]](#fn130)

That principle does not require an owner to admit firearms.[\[131\]](#fn131) It instead identifies the legal position of the entrant before the owner has acted.[\[132\]](#fn132) A proprietor who wishes to exclude firearms may do so through the ordinary means by which property owners communicate conditions of entry: a posted sign, a verbal instruction, a direction given through an employee, a lease provision, a membership rule, a ticket condition, or a demand that the entrant leave.[\[133\]](#fn133) Once the owner communicates such a condition, the carrier no longer stands in the same position as other members of the public invited onto the premises.[\[134\]](#fn134) At that point, ordinary trespass law may enforce the owner’s decision, and the Second Amendment supplies no license to disregard the exclusion.[\[135\]](#fn135)

The question in Wolford arises before any such owner-specific act.[\[136\]](#fn136) The owner has not posted a sign, given an instruction, written a rule, revoked entry, or demanded departure.[\[137\]](#fn137) Hawaii nonetheless treats the licensed carrier as unlawfully present because he carries a firearm.[\[138\]](#fn138) This changes the function that trespass law performs.[\[139\]](#fn139) At common law, as the Second Circuit explained in Christian, entry onto property held open to the public was not treated the same way as entry onto a home or farm.[\[140\]](#fn140) Blackstone gave the example of an inn or public house, where the proprietor’s decision to hold the premises open supplied a general license to enter.[\[141\]](#fn141) The Second Circuit then pointed to State v. Boone, where the North Carolina Supreme Court overturned a felonious-entry conviction because the defendant entered a store while it was open to the public, and State v. Martin, where the South Carolina Supreme Court recognized that the public has an implied license to enter a retail store and many other places of business.[\[142\]](#fn142) Placed in historical context, Hawaii’s statute exceeds traditional trespass enforcement by transforming the State’s firearms-specific default into a substitute for an owner’s express withdrawal of the ordinary invitation.[\[143\]](#fn143) As a result, individuals who would otherwise be lawfully present under the public-facing character of the premises face criminal liability based solely on a legal fiction created by the State.[\[144\]](#fn144)

At argument, the United States framed the burden as a firearms-specific redefinition of trespass.[\[145\]](#fn145) In response to Justice Jackson, Deputy Solicitor General Sarah Harris stated that Hawaii’s rule tells licensed carriers they are no longer presumptively allowed to carry at places such as gas stations or laundromats.[\[146\]](#fn146) Justice Gorsuch later described the rule as flipping the longstanding implied-license presumption only for firearms, and Harris agreed that the rule singles out a particular right and a particular group.[\[147\]](#fn147) That description captures the structure of Hawaii’s law.[\[148\]](#fn148) Rather than applying uniformly to all entrants or forms of conduct, the rule specifically targets licensed public carry, rendering that conduct unlawful unless the owner takes the additional step of affirmatively restoring permission that is otherwise presumed for other lawful entrants based on the public-facing nature of the premises.[\[149\]](#fn149)

Hawaii’s permission answer confirms the burden.[\[150\]](#fn150) On the State’s account, the licensed carrier may ask for approval before entering a store, restaurant, gas station, hotel, laundromat, or other place held open to the public.[\[151\]](#fn151) That answer assumes the very change in legal status that the statute creates.[\[152\]](#fn152) Ordinary entrants do not seek individualized permission before crossing those thresholds.[\[153\]](#fn153) They enter because the premises have been opened to the public for lawful purposes.[\[154\]](#fn154) Hawaii requires a different form of permission only when the entrant is armed under a license.[\[155\]](#fn155) The result is a rule in which the exercise of public carry depends on a sequence of private dispensations from owners, managers, cashiers, clerks, attendants, or other agents encountered in daily life.[\[156\]](#fn156) That additional burden arises from the State’s firearms-specific default, rather than from any owner’s actual decision to exclude.[\[157\]](#fn157) It is therefore the point at which the property rule becomes a Second Amendment burden.[\[158\]](#fn158)

## V. The Historical Record

Under Bruen, the State must identify a well-established and representative historical analogue.[\[159\]](#fn159) The analogue need not be a historical twin, but it must burden the right in a sufficiently similar way and for a sufficiently similar reason.[\[160\]](#fn160) Rahimi later described that inquiry in terms of how and why the modern law burdens the right.[\[161\]](#fn161) Those requirements frame the historical record here.[\[162\]](#fn162) Hawaii must show a tradition of treating licensed carry on public-facing private property as unlawful unless the owner affirmatively consents.[\[163\]](#fn163) A collection of hunting, poaching, and armed-trespass laws does not establish that tradition.[\[164\]](#fn164) The relevant comparison is whether those laws treated ordinary entry onto public-facing private property as criminal unless the owner affirmatively consented to armed entry, not whether they used the vocabulary of trespass or permission.

The early statutes on which Hawaii relies arose in a different legal setting.[\[165\]](#fn165) Many of them regulated entry onto enclosed land, cultivated fields, plantations, or other property associated with hunting, game preservation, crops, livestock, and possession.[\[166\]](#fn166) Their purpose was to protect land and game from invasion by persons entering with guns to hunt or range.[\[167\]](#fn167) That tradition may explain why a State could punish armed entry onto another’s enclosed land without permission.[\[168\]](#fn168) It does less to explain why a State may treat an invited customer at a shop, inn, gas station, or other public-facing business as a criminal before the proprietor has objected.[\[169\]](#fn169)

The 1771 New Jersey law illustrates why the historical materials must be read in context.[\[170\]](#fn170) Section 1, viewed alone, appears broader than many of the other early laws because it prohibited a person from carrying a gun on lands not his own, and for which the owner paid taxes or held lawful possession, without written license or permission.[\[171\]](#fn171) The Second Circuit, however, read that provision with the statute’s title, preamble, and neighboring sections.[\[172\]](#fn172) The preamble referred to prior laws “for the Preservation of Deer and other Game, and to prevent trespassing with Guns, Traps and Dogs.”[\[173\]](#fn173) Other sections addressed hunting or watching for deer with a gun, penalties for killing or destroying deer, rules governing unimproved lands, penalties for setting traps, and rewards for destroying such traps.[\[174\]](#fn174) Read in that setting, the statute fits within the older law of game preservation and armed trespass.[\[175\]](#fn175) It addressed entry onto another’s land with guns in a context tied to hunting and trespass, rather than an invitation rule for inns, shops, or businesses that had opened their premises to the public.[\[176\]](#fn176)

The same contextual reading governs the related colonial and founding-era materials.[\[177\]](#fn177) The 1715 Maryland law concerned gun carriage on land with a “seated plantation.”[\[178\]](#fn178) The 1721 Pennsylvania and 1722 New Jersey laws referred to “improved or inclosed lands” of another’s plantation.[\[179\]](#fn179) The 1763 New York law addressed firearms in orchards, gardens, cornfields, and other enclosed land.[\[180\]](#fn180) The Second Circuit read those terms as pointing to farms, cultivated estates, enclosed fields, and other property whose ordinary legal character differed from an inn, shop, or public house.[\[181\]](#fn181) That reading was reinforced by the absence of persuasive evidence that such estates and farms were traditionally held open to the public, or that the statutes were understood or enforced against public-facing property.[\[182\]](#fn182) Read in their own setting, these laws show a tradition of protecting owners from armed intrusion on private lands where no general invitation existed.[\[183\]](#fn183) They provide little support for a modern rule that withdraws the ordinary invitation from licensed carriers alone after a proprietor has opened his premises to the public.[\[184\]](#fn184)

The Reconstruction-era laws require separate treatment.[\[185\]](#fn185) Louisiana’s 1865 law and Texas’s 1866 law are broader than the earlier game-and-trespass statutes, so the defect is not simply that they concerned enclosed land or hunting.[\[186\]](#fn186) Their weakness lies in the historical setting from which they arose.[\[187\]](#fn187) In McDonald, the Supreme Court described the postwar South as a period in which former Confederate States engaged in systematic efforts to disarm and injure African Americans, prompting Congress to pass the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect, among other things, the right to keep and bear arms.[\[188\]](#fn188) The Second Circuit in Christian read the Louisiana and Texas statutes against that background.[\[189\]](#fn189) It treated facial neutrality as insufficient where the State had not shown that the laws were equally enforced or accepted apart from the disarmament of freedmen.[\[190\]](#fn190) Those enactments therefore provide weak evidence of a constitutional tradition.[\[191\]](#fn191) Two laws from that period, especially when tied to a history of racial disarmament, cannot establish the well-established and representative tradition that Bruen requires.[\[192\]](#fn192)

Considered together, the historical materials do not carry Hawaii’s burden.[\[193\]](#fn193) The early laws identify a tradition of protecting land, game, crops, livestock, and possession from armed intrusion.[\[194\]](#fn194) That tradition may justify rules against entering enclosed or cultivated land with a gun, especially where the entrant comes to hunt, poach, or trespass.[\[195\]](#fn195) It does not supply a tradition of criminalizing licensed carry by a customer who enters property already held open to the public.[\[196\]](#fn196) The later Reconstruction-era enactments add little to the State’s showing.[\[197\]](#fn197) Their number is small, their form is broader, and their connection to postwar disarmament makes them weak evidence of a settled constitutional tradition.[\[198\]](#fn198) Read under Bruen and Rahimi, the comparison fails in operation and purpose.[\[199\]](#fn199) The older laws addressed armed entry where no general invitation existed.[\[200\]](#fn200) Hawaii’s statute makes licensed carry unlawful across ordinary public life unless each owner affirmatively restores permission.[\[201\]](#fn201) The State has therefore failed to identify a historical tradition allowing it to convert owner silence into a criminal no-carry command on property otherwise held open to the public.[\[202\]](#fn202)

## VI. The Contrary Arguments

The strongest defense of Hawaii’s rule begins with the right to exclude.[\[203\]](#fn203) That right is central to property law, and nothing in the Second Amendment deprives an owner of authority over his premises.[\[204\]](#fn204) If a proprietor bars firearms by sign, verbal instruction, lease provision, membership rule, or other ordinary condition of entry, the licensed carrier must comply.[\[205\]](#fn205) Trespass law may then enforce the proprietor’s decision.[\[206\]](#fn206) The question in Wolford arises before that point.[\[207\]](#fn207) It concerns whether the State may treat every silent owner as having already excluded firearms and then attach criminal consequences to a licensed carrier’s failure to obtain permission that ordinary entrants do not need.[\[208\]](#fn208)

Hawaii may also defend its statute as an ordinary default rule.[\[209\]](#fn209) States often set background rules for property, consent, agency, and notice.[\[210\]](#fn210) Those rules, however, remain subject to constitutional limits when they change the legal status of protected conduct.[\[211\]](#fn211) Bruen requires the government to justify a firearm regulation with the Nation’s historical tradition once the Second Amendment’s text covers the conduct.[\[212\]](#fn212) A State therefore cannot avoid that burden by describing a public-carry restriction as a rule about property rather than arms.[\[213\]](#fn213) Ultimately, it is the statute’s operation, not its label, that determines whether the law is consistent with constitutional requirements.[\[214\]](#fn214)

The public-safety argument has force only within the limits recognized by Rahimi.[\[215\]](#fn215) There, the Supreme Court upheld temporary disarmament after a court found that the person subject to the order posed a credible threat to another’s physical safety.[\[216\]](#fn216) That kind of rule turns on conduct, judicial process, and an individualized finding of danger.[\[217\]](#fn217) Hawaii’s private-property default proceeds along a different line.[\[218\]](#fn218) It applies to licensed carriers as a class, reaches ordinary public-facing property, and operates without misconduct, owner objection, or judicial finding.[\[219\]](#fn219) The statute therefore burdens the right in a different manner and for a different reason than the law upheld in Rahimi.[\[220\]](#fn220)

The practical effect confirms the doctrinal problem.[\[221\]](#fn221) Many proprietors will post nothing, whether because of indifference, uncertainty, inertia, or a desire to avoid controversy.[\[222\]](#fn222) Under Hawaii’s rule, that silence operates in favor of prohibition.[\[223\]](#fn223) Licensed public carry then remains lawful on streets and sidewalks while becoming criminal at the entrances to the establishments where ordinary public life occurs.[\[224\]](#fn224) Bruen recognized the right to carry handguns publicly for self-defense, and a rule that leaves that right largely to the discretion of individual destinations is difficult to square with that holding.[\[225\]](#fn225)

## VII. The Rule

The Court should adopt a rule that preserves the ordinary authority of property owners while keeping the Second Amendment inquiry in its proper place.[\[226\]](#fn226) When private property is held open to the public, licensed carry should remain lawful unless the owner, lessee, operator, manager, or lawful agent gives reasonably clear notice excluding firearms.[\[227\]](#fn227) That rule begins from the same point as ordinary trespass law.[\[228\]](#fn228) A public-facing proprietor may define the terms on which others enter his premises, yet the law should ask whether the proprietor has chosen to impose such a term before treating the licensed carrier as unlawfully present.[\[229\]](#fn229)

The required notice may take the forms familiar to property law.[\[230\]](#fn230) It may be posted at the entrance, communicated verbally, written into a lease or membership agreement, included as a contractual condition, transmitted electronically, or otherwise made effective under ordinary trespass principles.[\[231\]](#fn231) Hawaii’s own statute recognizes several workable methods for communicating authorization.[\[232\]](#fn232) Once the owner has given notice, the State may enforce that decision through trespass law or other valid conditions of entry.[\[233\]](#fn233) The constitutional difficulty arises only when the State supplies the exclusion in advance and gives criminal effect to an owner’s silence.[\[234\]](#fn234)

This rule also fits the Supreme Court’s Second Amendment cases.[\[235\]](#fn235) Heller recognized an individual right to keep and bear arms for lawful purposes, with self-defense at the center of the right.[\[236\]](#fn236) McDonald made that right enforceable against the States.[\[237\]](#fn237) Bruen carried the right outside the home and placed the burden on the government to justify covered firearm regulations through the Nation’s historical tradition.[\[238\]](#fn238) Rahimi allowed focused regulation tied to demonstrated threats and the judicial process.[\[239\]](#fn239) Read together, those cases permit owner-controlled exclusion, sensitive-place rules, and danger-based disarmament in cases where history supports the regulation.[\[240\]](#fn240) They provide no support for a statewide criminal default that treats every silent owner as having barred arms from property otherwise open to the public.[\[241\]](#fn241)

The proper rule may therefore be stated as an implied license followed by an express exclusion.[\[242\]](#fn242) Public-facing property carries the ordinary invitation to enter for lawful purposes.[\[243\]](#fn243) The owner may revoke or condition that invitation as to firearms, and the State may enforce the revocation once made.[\[244\]](#fn244) The State has no authority to create the revocation itself and then attribute it to a proprietor who has said nothing.[\[245\]](#fn245)

## Conclusion

This Article argues that a State may enforce an owner’s actual decision to exclude firearms from his property.[\[246\]](#fn246) It may enforce posted conditions, verbal instructions, lease terms, membership rules, and ordinary trespass principles once the owner has chosen to impose them.[\[247\]](#fn247) The constitutional difficulty arises when the State supplies that decision in advance, treats every silent proprietor as having barred arms, and makes licensed carry a crime on private property held open to the public unless each owner affirmatively opts into allowing licensed carry.[\[248\]](#fn248)

Hawaii’s statute reaches beyond the protection of private property.[\[249\]](#fn249) It assigns the State’s no-carry preference to owners who have said nothing and then punishes ordinary license holders for entering public-facing premises under the usual incidents of lawful public presence.[\[250\]](#fn250) The historical record does not support that rule.[\[251\]](#fn251) The early laws concerned armed intrusion, hunting, poaching, enclosed land, crops, livestock, and possession.[\[252\]](#fn252) The latter laws on which Hawaii relies are too few and too historically compromised to establish the national tradition that Bruen requires.[\[253\]](#fn253)

Bruen recognized public carry, and public carry cannot be reduced to a sidewalk privilege.[\[254\]](#fn254) A licensed carrier who enters a store, restaurant, gas station, hotel, laundromat, or other business held open to the public remains within the ordinary field of public life unless the owner chooses to exclude him.[\[255\]](#fn255) If the owner bars firearms, the carrier must comply.[\[256\]](#fn256) If the owner has said nothing, the State may not place an invisible no-carry sign at the threshold and call that sign the owner’s choice.[\[257\]](#fn257)

## Notes

---

1. U.S. CONST. amend. II. [↩︎](#fnref1)
2. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 31–32, 70 (2022). [↩︎](#fnref2)
3. Wolford v. Lopez, 146 S. Ct. 79 (2025) (mem.) (granting certiorari limited to Question 1 presented); Supreme Court of the United States Granted & Noted List, October Term 2025 Cases for Argument, No. 24-1046, at 1 (2025) \[hereinafter Wolford Question\] (asking whether Hawaii may presumptively prohibit licensed concealed carry on private property open to the public unless the owner gives express permission); Docket, Wolford v. Lopez, No. 24-1046 (U.S.) (showing argument held Jan. 20, 2026). [↩︎](#fnref3)
4. Act 52, 2023 HAW. SESS. LAWS; Brief for Respondent at 6–7, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref4)
5. HAW. REV. STAT. § 134-9.5(a); Brief for Petitioners at 6, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref5)
6. HAW. REV. STAT. § 134-9.5(b); Brief for Petitioners at 6, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref6)
7. HAW. REV. STAT. § 134-9.5(e); see also Wolford Question, supra note 3, at 1\. [↩︎](#fnref7)
8. 2022 N.Y. Laws ch. 371; N.Y. PENAL LAW § 265.01-d (McKinney 2026). [↩︎](#fnref8)
9. Bruen, 597 U.S. at 24, 29–30; Wolford Question, supra note 3, at 1\. [↩︎](#fnref9)
10. Cedar Point Nursery v. Hassid, 594 U.S. 139, 149–50 (2021); Kaiser Aetna v. United States, 444 U.S. 164, 176, 179–80 (1979); Brief of Professors of Property Law as Amici Curiae in Support of Respondent at 2–5, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 23, 2025). [↩︎](#fnref10)
11. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332 (AM. L. INST. 1965); Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref11)
12. Bruen, 597 U.S. at 24, 29–30, 70; Antonyuk v. James, 120 F.4th 941, 1044–47 (2d Cir. 2024); Christian v. James, Nos. 24-2847, 25-384, --- F.4th ----, 2026 WL 1378796, at \*1, \*5–9 (2d Cir. May 18, 2026); Kipke v. Moore, 165 F.4th 194, 219 (4th Cir. 2026). [↩︎](#fnref12)
13. See HAW. REV. STAT. § 134-9.5(a)–(e); Brief for Petitioners at 6, 11–12, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref13)
14. HAW. REV. STAT. § 134-9.5(a)–(b); N.Y. PENAL LAW § 265.01-d. [↩︎](#fnref14)
15. Transcript of Oral Argument at 87–88, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026) (Justice Gorsuch using the “vampire” image during questioning concerning Reconstruction-era Black Codes). [↩︎](#fnref15)
16. Brief for Petitioners at i, 6, 11–12, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref16)
17. RESTATEMENT (SECOND) OF TORTS § 332(3); Florida v. Jardines, 569 U.S. 1, 8–9 (2013); Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref17)
18. Jardines, 569 U.S. at 8–9; 3 WILLIAM BLACKSTONE, COMMENTARIES \*209\. [↩︎](#fnref18)
19. RESTATEMENT (SECOND) OF TORTS § 332(3) (AM. L. INST. 1965); Christian, 2026 WL 1378796, at \*6–7; State v. Boone, 297 N.C. 652, 659, 256 S.E.2d 683, 687 (1979); State v. Martin, 147 S.E. 606, 614 (S.C. 1929), overruled on other grounds by State v. Belcher, 685 S.E.2d 802 (S.C. 2009). [↩︎](#fnref19)
20. HAW. REV. STAT. § 134-9.5(a)–(e); RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref20)
21. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref21)
22. HAW. REV. STAT. § 134-9.5(a)–(e); Wolford v. Lopez, 116 F.4th 959, 995–1005 (9th Cir. 2024); Antonyuk, 120 F.4th at 1044–47; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref22)
23. Bruen, 597 U.S. at 31–32, 70; Christian, 2026 WL 1378796, at \*9\. [↩︎](#fnref23)
24. Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024), reh’g en banc denied, 125 F.4th 1230 (9th Cir. 2025), cert. granted, 146 S. Ct. 79 (2025) (mem.); Antonyuk, 120 F.4th at 1044–47; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref24)
25. District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010); Bruen, 597 U.S. 1; United States v. Rahimi, 602 U.S. 680 (2024). [↩︎](#fnref25)
26. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332; Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref26)
27. Brief for Petitioners at 25–40, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025); Brief for Respondent at 39–45, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref27)
28. Bruen, 597 U.S. at 24, 29–30; Rahimi, 602 U.S. at 690–92; Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref28)
29. HAW. REV. STAT. § 134-9.5(a); Brief for Petitioners at 6, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref29)
30. HAW. REV. STAT. § 134-9.5(a), (c); Wolford Question, supra note 3, at 1; Wolford, 116 F.4th at 995–1005\. [↩︎](#fnref30)
31. HAW. REV. STAT. § 134-9.5(a)–(e); Transcript of Oral Argument at 47–48, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026) (discussing gas stations and laundromats). [↩︎](#fnref31)
32. Act 52, 2023 HAW. SESS. LAWS; Brief for Respondent at 6–8, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref32)
33. Act 52, 2023 HAW. SESS. LAWS; Brief for Respondent at 7–8, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref33)
34. HAW. REV. STAT. § 134-9.5(a)–(b); Wolford, 116 F.4th at 995–1005\. [↩︎](#fnref34)
35. HAW. REV. STAT. § 134-9.5(a), (e); Brief for Petitioners at 6, 11–12, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref35)
36. 2022 N.Y. Laws ch. 371; N.Y. PENAL LAW § 265.01-d. [↩︎](#fnref36)
37. N.Y. PENAL LAW § 265.01-d(1). [↩︎](#fnref37)
38. N.Y. PENAL LAW § 265.01-d(1)–(2). [↩︎](#fnref38)
39. Wolford Question, supra note 3, at 1; Motion and Supplemental Brief for Petitioners at 1–5, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref39)
40. Wolford, 116 F.4th at 995–1005\. [↩︎](#fnref40)
41. Brief for Petitioners at 6, 11–12, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025); Brief for Respondent at 9–10, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref41)
42. Brief for Respondent at 9, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025) (describing the court of appeals’ holding that carrying onto property held open to the public likely falls within the Second Amendment’s plain text). [↩︎](#fnref42)
43. Wolford, 116 F.4th at 1002–05; Brief for Respondent at 9–10, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref43)
44. Christian v. James, Nos. 24-2847, 25-384, --- F.4th ----, 2026 WL 1378796 (2d Cir. May 18, 2026); Motion and Supplemental Brief for Petitioners at 3–5, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref44)
45. Christian, 2026 WL 1378796, at \*1; Motion and Supplemental Brief for Petitioners at 3–4, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref45)
46. Christian, 2026 WL 1378796, at \*1, \*5; Motion and Supplemental Brief for Petitioners at 3–4, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref46)
47. Christian, 2026 WL 1378796, at \*5–8; Antonyuk, 120 F.4th at 1044–47; Motion and Supplemental Brief for Petitioners at 4–5, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref47)
48. Wolford Question, supra note 3, at 1\. [↩︎](#fnref48)
49. Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref49)
50. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref50)
51. Christian, 2026 WL 1378796, at \*6–9; Kipke, 165 F.4th at 219; Antonyuk, 120 F.4th at 1044–47\. [↩︎](#fnref51)
52. Heller, 554 U.S. 570; McDonald, 561 U.S. 742; Bruen, 597 U.S. 1; Rahimi, 602 U.S. 680\. [↩︎](#fnref52)
53. Wolford Question, supra note 3, at 1; Brief for Petitioners at 14–25, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref53)
54. Heller, 554 U.S. at 577–95\. [↩︎](#fnref54)
55. Id. at 576–626\. [↩︎](#fnref55)
56. Id. at 592, 599, 628–30\. [↩︎](#fnref56)
57. Id. at 628–36\. [↩︎](#fnref57)
58. McDonald, 561 U.S. at 750\. [↩︎](#fnref58)
59. Id. at 750–52\. [↩︎](#fnref59)
60. Id. at 767–78\. [↩︎](#fnref60)
61. Id. at 791\. [↩︎](#fnref61)
62. Bruen, 597 U.S. at 8–15, 23–24, 31–32\. [↩︎](#fnref62)
63. Id. at 11–13\. [↩︎](#fnref63)
64. Id. at 31–32, 70\. [↩︎](#fnref64)
65. Id. at 17–24\. [↩︎](#fnref65)
66. Id. at 24, 29–30\. [↩︎](#fnref66)
67. Bruen, 597 U.S. at 24; Rahimi, 602 U.S. at 690–92\. [↩︎](#fnref67)
68. Wolford Question, supra note 3, at 1; Brief for Respondent at 9, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref68)
69. Christian, 2026 WL 1378796, at \*5–8; Brief for Petitioners at 30–37, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref69)
70. RESTATEMENT (SECOND) OF TORTS § 332(3); Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref70)
71. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref71)
72. Bruen, 597 U.S. at 31–32, 70; Wolford, 116 F.4th at 995–1005; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref72)
73. Bruen, 597 U.S. at 31–32, 70; Christian, 2026 WL 1378796, at \*1, \*9\. [↩︎](#fnref73)
74. Christian, 2026 WL 1378796, at \*9; Motion and Supplemental Brief for Petitioners at 5, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref74)
75. Bruen, 597 U.S. at 31–32, 70\. [↩︎](#fnref75)
76. HAW. REV. STAT. § 134-9.5(a), (e). [↩︎](#fnref76)
77. HAW. REV. STAT. § 134-9.5(a)–(e); Wolford, 116 F.4th at 995–1005\. [↩︎](#fnref77)
78. Rahimi, 602 U.S. at 690–92\. [↩︎](#fnref78)
79. Id. at 684–86, 698–700\. [↩︎](#fnref79)
80. Id. at 690–92\. [↩︎](#fnref80)
81. Id. at 698–700\. [↩︎](#fnref81)
82. Compare HAW. REV. STAT. § 134-9.5(a)–(e), with Rahimi, 602 U.S. at 698–700\. [↩︎](#fnref82)
83. HAW. REV. STAT. § 134-9.5(a)–(e); Rahimi, 602 U.S. at 698–700\. [↩︎](#fnref83)
84. HAW. REV. STAT. § 134-9.5(a)–(e); Wolford Question, supra note 3, at 1\. [↩︎](#fnref84)
85. Rahimi, 602 U.S. at 690–92, 698–700; Bruen, 597 U.S. at 29–30\. [↩︎](#fnref85)
86. Rahimi, 602 U.S. at 698–700\. [↩︎](#fnref86)
87. HAW. REV. STAT. § 134-9.5(a)–(e). [↩︎](#fnref87)
88. Heller, 554 U.S. 570; McDonald, 561 U.S. 742; Bruen, 597 U.S. 1; Rahimi, 602 U.S. 680\. [↩︎](#fnref88)
89. Heller, 554 U.S. at 592, 599; McDonald, 561 U.S. at 791; Bruen, 597 U.S. at 24, 31–32, 70; Rahimi, 602 U.S. at 690–92\. [↩︎](#fnref89)
90. Bruen, 597 U.S. at 24, 29–30; Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref90)
91. Christian, 2026 WL 1378796, at \*1, \*5–9; Antonyuk, 120 F.4th at 1044–47; Kipke, 165 F.4th at 219\. [↩︎](#fnref91)
92. Transcript of Oral Argument at 87–88, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026); Brief for Petitioners at 1–2, 6, 11–12, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref92)
93. HAW. REV. STAT. § 134-9.5(a)–(b); Transcript of Oral Argument at 4–5, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026). [↩︎](#fnref93)
94. RESTATEMENT (SECOND) OF TORTS § 332(3); Jardines, 569 U.S. at 8–9; Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref94)
95. RESTATEMENT (SECOND) OF TORTS §§ 330, 332\. [↩︎](#fnref95)
96. Jardines, 569 U.S. at 8–9; 3 BLACKSTONE, supra note 18, at \*209\. [↩︎](#fnref96)
97. RESTATEMENT (SECOND) OF TORTS § 332(3); Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref97)
98. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80; RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref98)
99. RESTATEMENT (SECOND) OF TORTS § 332(3); Boone, 297 N.C. at 659, 256 S.E.2d at 687; Martin, 147 S.E. at 614\. [↩︎](#fnref99)
100. Bruen, 597 U.S. at 31–32, 70; Christian, 2026 WL 1378796, at \*1, \*9\. [↩︎](#fnref100)
101. HAW. REV. STAT. § 134-9.5(a)–(e). [↩︎](#fnref101)
102. RESTATEMENT (SECOND) OF TORTS § 332(3); Transcript of Oral Argument at 47–48, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026). [↩︎](#fnref102)
103. HAW. REV. STAT. § 134-9.5(a)–(b). [↩︎](#fnref103)
104. Transcript of Oral Argument at 57–58, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026) (argument that Hawaii’s rule turns a gas station into someone’s house for one class of entrants). [↩︎](#fnref104)
105. HAW. REV. STAT. § 134-9.5(a)–(b); RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 332\. [↩︎](#fnref105)
106. HAW. REV. STAT. § 134-9.5(a)–(e); Christian, 2026 WL 1378796, at \*9\. [↩︎](#fnref106)
107. Bruen, 597 U.S. at 24, 31–32, 70; Christian, 2026 WL 1378796, at \*9\. [↩︎](#fnref107)
108. Bruen, 597 U.S. at 31–32, 70\. [↩︎](#fnref108)
109. RESTATEMENT (SECOND) OF TORTS § 332(3); Christian, 2026 WL 1378796, at \*6–9\. [↩︎](#fnref109)
110. Christian, 2026 WL 1378796, at \*9; Motion and Supplemental Brief for Petitioners at 5, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref110)
111. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref111)
112. HAW. REV. STAT. § 134-9.5(a)–(e); Wolford, 116 F.4th at 995–1005; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref112)
113. Brief for Respondent at 20–24, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref113)
114. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref114)
115. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref115)
116. Wolford Question, supra note 3, at 1\. [↩︎](#fnref116)
117. HAW. REV. STAT. § 134-9.5(a)–(e); Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref117)
118. HAW. REV. STAT. § 134-9.5(a)–(e); RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref118)
119. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171\. [↩︎](#fnref119)
120. HAW. REV. STAT. § 134-9.5(a)–(e); N.Y. PENAL LAW § 265.01-d. [↩︎](#fnref120)
121. HAW. REV. STAT. § 134-9.5(a), (e). [↩︎](#fnref121)
122. Bruen, 597 U.S. at 24, 29–30; Rahimi, 602 U.S. at 690–92\. [↩︎](#fnref122)
123. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80; RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171\. [↩︎](#fnref123)
124. Bruen, 597 U.S. at 24, 29–30; Rahimi, 602 U.S. at 690–92; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref124)
125. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332; Brief of Professors of Property Law as Amici Curiae in Support of Respondent at 2–10, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 23, 2025). [↩︎](#fnref125)
126. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171\. [↩︎](#fnref126)
127. RESTATEMENT (SECOND) OF TORTS §§ 330, 332; Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref127)
128. RESTATEMENT (SECOND) OF TORTS § 332(3); 3 BLACKSTONE, supra note 18, at \*209; Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref128)
129. RESTATEMENT (SECOND) OF TORTS §§ 332(3), 344\. [↩︎](#fnref129)
130. RESTATEMENT (SECOND) OF TORTS §§ 330, 332; Jardines, 569 U.S. at 8–9\. [↩︎](#fnref130)
131. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref131)
132. RESTATEMENT (SECOND) OF TORTS §§ 330, 332\. [↩︎](#fnref132)
133. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref133)
134. Id. [↩︎](#fnref134)
135. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80; RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171\. [↩︎](#fnref135)
136. Wolford Question, supra note 3, at 1\. [↩︎](#fnref136)
137. HAW. REV. STAT. § 134-9.5(a)–(b). [↩︎](#fnref137)
138. Id. § 134-9.5(a), (e). [↩︎](#fnref138)
139. Christian, 2026 WL 1378796, at \*6–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref139)
140. Christian, 2026 WL 1378796, at \*6–7; Motion and Supplemental Brief for Petitioners at 4, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref140)
141. 3 BLACKSTONE, supra note 18, at \*212; Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref141)
142. Boone, 297 N.C. at 659, 256 S.E.2d at 687; Martin, 147 S.E. at 614; Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref142)
143. Christian, 2026 WL 1378796, at \*6–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref143)
144. HAW. REV. STAT. § 134-9.5(a)–(e); Christian, 2026 WL 1378796, at \*9\. [↩︎](#fnref144)
145. Transcript of Oral Argument at 36–60, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026). [↩︎](#fnref145)
146. Id. at 47–48\. [↩︎](#fnref146)
147. Id. at 59–60\. [↩︎](#fnref147)
148. HAW. REV. STAT. § 134-9.5(a)–(e); Transcript of Oral Argument at 47–48, 59–60, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026). [↩︎](#fnref148)
149. HAW. REV. STAT. § 134-9.5(a)–(e); Bruen, 597 U.S. at 24, 31–32, 70; Christian, 2026 WL 1378796, at \*1, \*9\. [↩︎](#fnref149)
150. Transcript of Oral Argument at 104–05, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026). [↩︎](#fnref150)
151. Id.; HAW. REV. STAT. § 134-9.5(b). [↩︎](#fnref151)
152. HAW. REV. STAT. § 134-9.5(a)–(e). [↩︎](#fnref152)
153. RESTATEMENT (SECOND) OF TORTS § 332(3); Boone, 297 N.C. at 659, 256 S.E.2d at 687; Martin, 147 S.E. at 614\. [↩︎](#fnref153)
154. RESTATEMENT (SECOND) OF TORTS § 332(3). [↩︎](#fnref154)
155. HAW. REV. STAT. § 134-9.5(a)–(b). [↩︎](#fnref155)
156. Transcript of Oral Argument at 104–05, Wolford v. Lopez, No. 24-1046 (U.S. Jan. 20, 2026); Christian, 2026 WL 1378796, at \*9\. [↩︎](#fnref156)
157. HAW. REV. STAT. § 134-9.5(a)–(e); Christian, 2026 WL 1378796, at \*1, \*9\. [↩︎](#fnref157)
158. Bruen, 597 U.S. at 24, 29–30; Rahimi, 602 U.S. at 690–92; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref158)
159. Bruen, 597 U.S. at 24, 29–30, 46, 49, 67\. [↩︎](#fnref159)
160. Id. at 29–30; Rahimi, 602 U.S. at 690–92\. [↩︎](#fnref160)
161. Rahimi, 602 U.S. at 690–92\. [↩︎](#fnref161)
162. Bruen, 597 U.S. at 24, 29–30; Rahimi, 602 U.S. at 690–92\. [↩︎](#fnref162)
163. Wolford Question, supra note 3, at 1; Christian, 2026 WL 1378796, at \*1, \*5\. [↩︎](#fnref163)
164. Christian, 2026 WL 1378796, at \*5–8; Kipke, 165 F.4th at 219; Motion and Supplemental Brief for Petitioners at 2–5, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref164)
165. Brief for Petitioners at 30–37, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025); Brief for Respondent at 40–43, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref165)
166. 1721 Pa. Acts 22; An Act to Encourage the Destroying of Wolves, Crows, and Squirrels, 1728 Md. Laws 13; Act of Dec. 20, 1763, 1773 N.Y. Laws 442; Act of Dec. 21, 1771, ch. 540, 1771 N.J. Laws 346; Brief for Respondent at 40–43, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref166)
167. Act of Dec. 21, 1771, ch. 540, 1771 N.J. Laws 346, reprinted in Appendix to Brief for Petitioners at 1a–10a, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref167)
168. Brief for Respondent at 40–43, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref168)
169. Christian, 2026 WL 1378796, at \*5–8; Kipke, 165 F.4th at 219\. [↩︎](#fnref169)
170. Act of Dec. 21, 1771, ch. 540, 1771 N.J. Laws 346; Christian, 2026 WL 1378796, at \*6–7\. [↩︎](#fnref170)
171. Act of Dec. 21, 1771, ch. 540, 1771 N.J. Laws 346, reprinted in Appendix to Brief for Petitioners at 1a–10a, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref171)
172. Christian, 2026 WL 1378796, at \*6–7; Antonyuk, 120 F.4th at 1044–47\. [↩︎](#fnref172)
173. Act of Dec. 21, 1771, ch. 540, 1771 N.J. Laws 346\. [↩︎](#fnref173)
174. Id.; Brief for Petitioners at 33–37, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025). [↩︎](#fnref174)
175. Christian, 2026 WL 1378796, at \*6–7; New Jersey v. One 1990 Honda Accord, 154 N.J. 373, 389–90 (1998). [↩︎](#fnref175)
176. Christian, 2026 WL 1378796, at \*6–7; Antonyuk, 120 F.4th at 1044–47\. [↩︎](#fnref176)
177. Christian, 2026 WL 1378796, at \*5–8; Brief for Petitioners at 30–37, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025); Brief for Respondent at 40–43, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref177)
178. The Second Circuit identified the Maryland analogue as a 1715 law prohibiting certain convicted persons from carrying a firearm on another’s land containing a seated plantation without the owner’s leave. Christian, 2026 WL 1378796, at \*6\. The Wolford merits briefing also discusses a 1728 Maryland game law. An Act to Encourage the Destroying of Wolves, Crows, and Squirrels, 1728 Md. Laws 13; Brief for Respondent at 42, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). Both materials fit the same historical category for purposes of this Article: laws concerning plantations, hunting, game, or enclosed land, rather than public-facing commercial property. [↩︎](#fnref178)
179. 1721 Pa. Acts 22; 1722 Acts, Acts of the General Assembly of the Province of New-Jersey 101 (Nevill ed. 1761); Brief for Respondent at 41–42, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref179)
180. Act of Dec. 20, 1763, 1773 N.Y. Laws 442; Brief for Respondent at 42–43, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref180)
181. Christian, 2026 WL 1378796, at \*5–8; Antonyuk, 120 F.4th at 1044–47\. [↩︎](#fnref181)
182. Christian, 2026 WL 1378796, at \*5; Motion and Supplemental Brief for Petitioners at 4, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref182)
183. Christian, 2026 WL 1378796, at \*5–8; Kipke, 165 F.4th at 219\. [↩︎](#fnref183)
184. Christian, 2026 WL 1378796, at \*5–8; Kipke, 165 F.4th at 219\. [↩︎](#fnref184)
185. McDonald, 561 U.S. at 771–78; Christian, 2026 WL 1378796, at \*8\. [↩︎](#fnref185)
186. Act of Dec. 20, 1865, 1865 La. Acts 14–16; Act of Nov. 6, 1866, 4 Tex. Laws 1321; Brief for Respondent at 43–44, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref186)
187. McDonald, 561 U.S. at 771–78; Christian, 2026 WL 1378796, at \*8\. [↩︎](#fnref187)
188. McDonald, 561 U.S. at 771–78\. [↩︎](#fnref188)
189. Christian, 2026 WL 1378796, at \*8; Motion and Supplemental Brief for Petitioners at 4–5, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref189)
190. Christian, 2026 WL 1378796, at \*8\. [↩︎](#fnref190)
191. Id.; McDonald, 561 U.S. at 771–78\. [↩︎](#fnref191)
192. Bruen, 597 U.S. at 46, 49, 67; Christian, 2026 WL 1378796, at \*8; Kipke, 165 F.4th at 219\. [↩︎](#fnref192)
193. Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref193)
194. Brief for Petitioners at 30–37, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025); Brief for Respondent at 40–43, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref194)
195. Brief for Petitioners at 30–37, Wolford v. Lopez, No. 24-1046 (U.S. Nov. 17, 2025); Brief for Respondent at 40–43, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025); Christian, 2026 WL 1378796, at \*5–8\. [↩︎](#fnref195)
196. Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref196)
197. Christian, 2026 WL 1378796, at \*8; Kipke, 165 F.4th at 219\. [↩︎](#fnref197)
198. McDonald, 561 U.S. at 771–78; Christian, 2026 WL 1378796, at \*8\. [↩︎](#fnref198)
199. Bruen, 597 U.S. at 29–30; Rahimi, 602 U.S. at 690–92; Christian, 2026 WL 1378796, at \*5–9\. [↩︎](#fnref199)
200. Christian, 2026 WL 1378796, at \*5–8; Antonyuk, 120 F.4th at 1044–47\. [↩︎](#fnref200)
201. HAW. REV. STAT. § 134-9.5(a)–(e). [↩︎](#fnref201)
202. Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref202)
203. Brief for Respondent at 20–24, 39–45, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025); Brief of Professors of Property Law as Amici Curiae in Support of Respondent at 2–10, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 23, 2025). [↩︎](#fnref203)
204. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref204)
205. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref205)
206. Id. [↩︎](#fnref206)
207. Wolford Question, supra note 3, at 1\. [↩︎](#fnref207)
208. HAW. REV. STAT. § 134-9.5(a)–(e); Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref208)
209. Brief for Respondent at 39–45, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref209)
210. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332; Brief of Professors of Property Law as Amici Curiae in Support of Respondent at 2–10, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 23, 2025). [↩︎](#fnref210)
211. Bruen, 597 U.S. at 24, 29–30; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref211)
212. Bruen, 597 U.S. at 24, 29–30\. [↩︎](#fnref212)
213. Id.; Rahimi, 602 U.S. at 690–92; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref213)
214. Bruen, 597 U.S. at 24, 29–30; Rahimi, 602 U.S. at 690–92\. [↩︎](#fnref214)
215. Rahimi, 602 U.S. at 690–92, 698–700\. [↩︎](#fnref215)
216. Id. at 698–700\. [↩︎](#fnref216)
217. Id. [↩︎](#fnref217)
218. HAW. REV. STAT. § 134-9.5(a)–(e). [↩︎](#fnref218)
219. HAW. REV. STAT. § 134-9.5(a)–(e); Wolford Question, supra note 3, at 1\. [↩︎](#fnref219)
220. Rahimi, 602 U.S. at 690–92, 698–700; Bruen, 597 U.S. at 29–30\. [↩︎](#fnref220)
221. Christian, 2026 WL 1378796, at \*9; Motion and Supplemental Brief for Petitioners at 5, Wolford v. Lopez, No. 24-1046 (U.S. May 22, 2026). [↩︎](#fnref221)
222. Christian, 2026 WL 1378796, at \*9\. [↩︎](#fnref222)
223. HAW. REV. STAT. § 134-9.5(a)–(e). [↩︎](#fnref223)
224. Christian, 2026 WL 1378796, at \*9\. [↩︎](#fnref224)
225. Bruen, 597 U.S. at 31–32, 70; Christian, 2026 WL 1378796, at \*9\. [↩︎](#fnref225)
226. Bruen, 597 U.S. at 24, 29–30, 70; Cedar Point, 594 U.S. at 149–50; Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref226)
227. Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219; RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref227)
228. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref228)
229. Christian, 2026 WL 1378796, at \*6–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref229)
230. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref230)
231. Id. [↩︎](#fnref231)
232. HAW. REV. STAT. § 134-9.5(b). [↩︎](#fnref232)
233. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80; RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171\. [↩︎](#fnref233)
234. HAW. REV. STAT. § 134-9.5(a)–(e); Christian, 2026 WL 1378796, at \*1, \*5–9\. [↩︎](#fnref234)
235. Heller, 554 U.S. 570; McDonald, 561 U.S. 742; Bruen, 597 U.S. 1; Rahimi, 602 U.S. 680\. [↩︎](#fnref235)
236. Heller, 554 U.S. at 592, 599, 628–30\. [↩︎](#fnref236)
237. McDonald, 561 U.S. at 791\. [↩︎](#fnref237)
238. Bruen, 597 U.S. at 24, 31–32, 70\. [↩︎](#fnref238)
239. Rahimi, 602 U.S. at 690–92, 698–700\. [↩︎](#fnref239)
240. Heller, 554 U.S. at 626–27 & n.26; Bruen, 597 U.S. at 30–31; Rahimi, 602 U.S. at 698–700\. [↩︎](#fnref240)
241. Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref241)
242. RESTATEMENT (SECOND) OF TORTS §§ 330, 332; Christian, 2026 WL 1378796, at \*6–9\. [↩︎](#fnref242)
243. RESTATEMENT (SECOND) OF TORTS § 332(3); Boone, 297 N.C. at 659, 256 S.E.2d at 687; Martin, 147 S.E. at 614\. [↩︎](#fnref243)
244. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80; RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171\. [↩︎](#fnref244)
245. Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref245)
246. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80\. [↩︎](#fnref246)
247. RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171, 330, 332\. [↩︎](#fnref247)
248. HAW. REV. STAT. § 134-9.5(a)–(e); Bruen, 597 U.S. at 24, 29–30, 70; Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref248)
249. Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref249)
250. HAW. REV. STAT. § 134-9.5(a)–(e); RESTATEMENT (SECOND) OF TORTS § 332(3). [↩︎](#fnref250)
251. Christian, 2026 WL 1378796, at \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref251)
252. Act of Dec. 21, 1771, ch. 540, 1771 N.J. Laws 346; 1721 Pa. Acts 22; An Act to Encourage the Destroying of Wolves, Crows, and Squirrels, 1728 Md. Laws 13; Act of Dec. 20, 1763, 1773 N.Y. Laws 442; Brief for Respondent at 40–43, Wolford v. Lopez, No. 24-1046 (U.S. Dec. 17, 2025). [↩︎](#fnref252)
253. Bruen, 597 U.S. at 46, 49, 67; McDonald, 561 U.S. at 771–78; Christian, 2026 WL 1378796, at \*8; Kipke, 165 F.4th at 219\. [↩︎](#fnref253)
254. Bruen, 597 U.S. at 31–32, 70\. [↩︎](#fnref254)
255. RESTATEMENT (SECOND) OF TORTS § 332(3); Christian, 2026 WL 1378796, at \*6–9\. [↩︎](#fnref255)
256. Cedar Point, 594 U.S. at 149–50; Kaiser Aetna, 444 U.S. at 176, 179–80; RESTATEMENT (SECOND) OF TORTS §§ 158, 167, 171\. [↩︎](#fnref256)
257. HAW. REV. STAT. § 134-9.5(a)–(e); Bruen, 597 U.S. at 24, 29–30, 70; Christian, 2026 WL 1378796, at \*1, \*5–9; Kipke, 165 F.4th at 219\. [↩︎](#fnref257)
### Fair, According to What?
URL: https://www.thecommonplace.press/fair-according-to-what/
Last updated: 2026-05-26T19:45:44.000Z
After a hurricane, fairness turns on the order of response.[\[1\]](#fn1) The central question is who receives assistance first, who must wait, and which principle governs that sequence.[\[2\]](#fn2)

A citywide power outage imposes immediate and varied burdens. Families with infants need air conditioning. Elderly residents with medical equipment depend on electricity before backup batteries fail. Hospitals require power to sustain lives. Small businesses face further loss if they cannot reopen. The utility, operating with limited crews and damaged infrastructure, must set a restoration sequence before all needs can be addressed.[\[3\]](#fn3) Each decision about which area receives power first contains an underlying judgment about priority.[\[4\]](#fn4)

After Hurricane Beryl, KPRC reported CenterPoint Energy’s response, explaining that its crews first restore facilities “vital to safety, health and welfare,” including hospitals, water treatment plants, and public service facilities; after those facilities, the company said it repairs electrical facilities that return power to the largest number of people first.[\[5\]](#fn5) A 2021 KPRC report described the same basic sequence through a CenterPoint spokesperson: facilities key to community health and welfare first, then lines that restore the greatest number of customers in the least amount of time, then service drops and lines tied to individual homes.[\[6\]](#fn6)

The restoration rule is defensible because it protects essential public infrastructure and directs limited crews to repairs that benefit the greatest number.[\[7\]](#fn7) Yet the same rule can appear unjust to families whose service lines support fewer customers, whose neighborhoods face more complex damage, or whose urgent needs do not fit the sequence.[\[8\]](#fn8) This tension illustrates the broader political problem. A shared problem can still generate conflict when people disagree about which priority should govern.[\[9\]](#fn9)

That is the argument of this piece. Political disputes become more honest when fairness is treated as a claim about priority rather than a self-proving moral conclusion.[\[10\]](#fn10) The question is which priority a position chooses, which authority gives that choice force, and who bears the consequence.[\[11\]](#fn11) This approach holds people accountable for the quality of their judgment, the lawfulness of their actions, and the soundness of their policies.[\[12\]](#fn12) Its purpose is to sharpen disagreement by clarifying priorities and principles before moral accusations are made.[\[13\]](#fn13)

## I. The Priority Hidden Inside Fairness

Most people enter politics with a prior sense of fairness, shaped by background, experience, and circumstance.[\[14\]](#fn14) Conflict intensifies when a competing principle is seen as a rejection of fairness itself rather than a different answer to the question of priority.[\[15\]](#fn15)

Recognizing this distinction offers no blanket pardon for every position or outcome; individuals remain accountable for the consequences.[\[16\]](#fn16) Even well-intentioned motives can lead to harm, and the language of fairness can sometimes serve as cover for overreach.[\[17\]](#fn17) Yet this awareness should encourage restraint before we attribute disagreement to character.[\[18\]](#fn18) A more productive inquiry considers which principle is being advanced, under whose authority, at what cost, and with what consequence.[\[19\]](#fn19)

The aim is not to treat every claim of fairness as equally persuasive, but rather to clarify what each claim is actually asserting before passing judgment.[\[20\]](#fn20) Some positions may safeguard a portion of justice while overlooking other important aspects.[\[21\]](#fn21) When priorities are named and examined, debate can shift from accusation to meaningful analysis.[\[22\]](#fn22)

## II. Aristotle and the Problem of Partial Justice

Long before the Founders, Aristotle saw this pattern in political life.[\[23\]](#fn23) In Book III of *Politics*, he explains that oligarchs and democrats each make a claim about justice, and each claim contains a partial truth. Democrats reason from equal freedom to equal political power, while oligarchs reason from unequal wealth to unequal political power.[\[24\]](#fn24) Aristotle’s criticism is that each side takes a limited principle and treats it as the whole of justice.[\[25\]](#fn25)

In Benjamin Jowett’s translation, Aristotle says the parties “agree about the equality of the things, but dispute about the equality of the persons,” chiefly because people are poor judges when their own interests are involved.[\[26\]](#fn26) Stanford’s entry on Aristotle’s political theory states the point in modern terms. Aristotle’s account of distributive justice requires equal persons to receive equal shares and unequal persons to receive unequal shares, while the political fight concerns the standard by which persons count as equal or unequal.[\[27\]](#fn27)

This is the older dilemma resurfacing after the hurricane. Beneath disputes about allocation lies a deeper conflict over which principle should govern distribution.[\[28\]](#fn28) Each side may hold a partial view of justice, and each view can become hazardous if treated as complete.[\[29\]](#fn29)

Aristotle’s warning calls for a more disciplined argument. An opposing view often preserves some aspect of justice rather than rejecting it outright. That aspect may be incomplete or even dangerous if given legal force, but it should be identified before it is criticized.[\[30\]](#fn30) The relevant question is which part of justice a position elevates, and whether that part can bear the weight placed on it.[\[31\]](#fn31)

## III. When the Problem Is Shared

The storm example highlights a familiar pattern in political conflict: parties may agree on the existence of a problem, but diverge sharply over how to address it.[\[32\]](#fn32) Debates over fairness are rarely settled by appeals to the word itself. Instead, they hinge on which injury or interest the proposed remedy prioritizes.[\[33\]](#fn33)

Public education offers a clear example. A selective public school has too few seats for the number of qualified students who want to attend.[\[34\]](#fn34) One theory gives the seats to the highest-scoring applicants because achievement should be rewarded.[\[35\]](#fn35) Another uses a lottery among qualified applicants because children should have an equal chance once they clear the threshold.[\[36\]](#fn36) Another gives preference to disadvantaged students from underrepresented schools because opportunities should reach those who have had less of it.[\[37\]](#fn37) Another protects neighborhood access because families made decisions, paid taxes, and built their lives around the local school.[\[38\]](#fn38) The school cannot adopt every theory at once, so the adopted rule must choose whose claim comes first.[\[39\]](#fn39)

Public safety works the same way.[\[40\]](#fn40) In a high-crime neighborhood, one person may say fairness begins with law-abiding residents who want to walk to the store, raise children, and keep businesses open without fear. Another may say fairness begins with citizens who have experienced rough enforcement, failing schools, addiction, joblessness, and disorder for years before police arrive. The first diagnosis points toward order, enforcement, deterrence, and faster response. The second points toward treatment, social repair, and restraint in policing.[\[41\]](#fn41) The conflict may involve motive in some cases, but it often begins with priority: one side has placed victims of disorder at the center, while the other has placed victims of state overreach or social neglect there.[\[42\]](#fn42)

Debt forgiveness produces the same pattern.[\[43\]](#fn43) A borrower says fairness means relief from a burden that can shape decades of life.[\[44\]](#fn44) A non-borrower says fairness means refusing to transfer that burden to people who paid, borrowed less, worked through school, skipped school, or chose a less expensive path.[\[45\]](#fn45) Mercy and cruelty do not describe the dispute with enough precision. The dispute concerns which injury the law should recognize first.[\[46\]](#fn46)

In each example, the problem is recognizable before the remedy is chosen. That is the harder question beneath each example: which claim receives priority when every claim cannot be satisfied at once?[\[47\]](#fn47) That is where political disagreement often begins, and that is where a fair argument should begin, too.[\[48\]](#fn48)

## IV. When the Diagnosis Differs

Deeper conflicts emerge when people disagree about the underlying problem itself.[\[49\]](#fn49)

Poverty is the clearest example. If the problem is a lack of opportunity, the remedy will involve schools, transportation, job access, and capital.[\[50\]](#fn50) If the problem is family breakdown, the remedy will involve marriage, fatherhood, local institutions, the church, and cultural expectations.[\[51\]](#fn51) If the problem is weak work incentives, the remedy will involve benefits reform and policies that reward employment.[\[52\]](#fn52) If the problem is crime, order comes first because every other promise depends on safety.[\[53\]](#fn53) If the problem is credential gatekeeping, the remedy will involve licensing reform, vocational paths, and fewer artificial barriers to work.[\[54\]](#fn54)

Debates about remedies often proceed while participants hold different views of causation.[\[55\]](#fn55) This divergence can lead to mutual accusation. One side sees a lack of compassion, the other a lack of judgment. Both perspectives may hold some truth, but each may also mistake a different diagnosis for a moral failing.[\[56\]](#fn56)

This distinction has made politics less contentious for me, though not free of conflict. I try to assume that an opposing view is an attempt to solve a problem through a different theory of fairness. That habit has helped me see more trade-offs and fewer villains. It has made me slower to treat disagreement as evidence of malice. It has also made me more demanding about results, since a charitable view of motive does not make a policy sound.[\[57\]](#fn57)

Mistakes and unintended harm are inevitable in public life: policies sometimes injure those they mean to help, and leaders can invoke compassion as a rationale for control just as easily as they can cite liberty to justify indifference.[\[58\]](#fn58) Programs may unintentionally reward harmful conduct, while rules and regulations can at times punish responsible behavior.[\[59\]](#fn59) Bureaucratic discretion, often expanded by exceptional cases, risks turning every objection into a charge of cruelty.[\[60\]](#fn60) These patterns reveal the limits of good intentions and the need for careful scrutiny of both motive and outcome in the pursuit of fairness.[\[61\]](#fn61)

Charity toward motive should not obscure consequence.[\[62\]](#fn62)

## V. Fairness Under Cross-Examination

The word fair often enters political arguments too early and demands agreement before it has earned it.[\[63\]](#fn63) A tax increase may be called fair because wealth can bear a heavier public burden. A tax cut may be called fair because people have a claim to the fruit of their labor. A regulation may be called fair because it protects consumers. Deregulation may be called fair because it reduces favoritism, lowers entry barriers, and limits officials’ power to choose winners.[\[64\]](#fn64) The word does not resolve the debate. It begins the examination.[\[65\]](#fn65)

Fair to whom? Fair according to what principle? Fair against which alternative? Fair under whose authority? Fair at what cost? Fair today, or fair across time?[\[66\]](#fn66) The person who refuses those questions is using a moral conclusion as a substitute for reasoning.[\[67\]](#fn67)

That habit has become especially necessary because Americans increasingly judge political disagreement in moral terms.[\[68\]](#fn68) Pew Research Center reported in March 2026 that the United States was the only country among twenty-five surveyed in which more adults described the morality and ethics of people in their country as bad rather than good: 53% said bad, while 47% said good.[\[69\]](#fn69) Pew also reported that Democrats and Democratic-leaning independents were more likely than Republicans and Republican leaners to rate fellow Americans as morally and ethically bad, sixty percent to forty-six percent.[\[70\]](#fn70) A separate Pew report, also published in March 2026, found sharp partisan differences on several moral questions, including homosexuality, pornography, divorce, the death penalty, spanking children, marijuana, abortion, and extreme wealth.[\[71\]](#fn71)

This environment intensifies policy disputes beyond necessity. When disagreement is cast as moral failure, persuasion becomes nearly impossible. Opponents become adversaries to defeat rather than interlocutors to answer. People begin with condemnation rather than asking which principle the other side seeks to protect.[\[72\]](#fn72)

## VI. Power Needs a Rule

The fairness problem underscores the importance of institutions. A society divided about fairness requires forms, limits, and procedures to prevent moral certainty from becoming unchecked command.[\[73\]](#fn73)

Publius gave the constitutional version of that argument in *Federalist No. 51*. The essay argues that government must first control the governed and then oblige itself to control itself, because “Ambition must be made to counteract ambition.”[\[74\]](#fn74) It also says that justice is the end of government and civil society, pursued until obtained or until liberty is lost in the pursuit.[\[75\]](#fn75) That last phrase is the danger. A politics obsessed with justice can lose liberty while chasing its own version of fairness.[\[76\]](#fn76)

This is where the storm analogy becomes instructive. A utility may prioritize hospitals, then repairs that restore service to the largest number, then individual service problems.[\[77\]](#fn77) While the rule is subject to challenge or revision, its value lies in requiring decisions to follow a clear sequence and in offering the public a transparent framework for scrutiny.[\[78\]](#fn78) By making explicit which principle takes precedence and which is deferred, the process becomes more accountable and intelligible, even as debate about the order persists.[\[79\]](#fn79)

Political power, like utility restoration, requires disciplined processes and transparent justification.[\[80\]](#fn80) Policies gain legitimacy when clearly codified in law, and any exercise of authority must be openly defended and rooted in established rules.[\[81\]](#fn81) This kind of structure makes it possible to evaluate tradeoffs, assign responsibility, and maintain public trust.[\[82\]](#fn82) Where authority exists, the tradeoffs must be identified. If the tradeoff is justified, responsibility must be accepted for those affected.[\[83\]](#fn83) This process is slower than slogans, but it is more accountable than moral urgency backed by vague discretion.[\[84\]](#fn84)

The more contested the fairness principle, the greater the need for lawful authority, clear rules, local variation, public accountability, and skepticism toward administrative power.[\[85\]](#fn85) That is a conservative instinct worth preserving.[\[86\]](#fn86) It does not deny that the government has work to do. It insists that the government act through legitimate means, with attention to incentives, tradeoffs, and human self-interest.[\[87\]](#fn87)

Individuals most convinced of their own fairness are often those most in need of external constraints.[\[88\]](#fn88)

## VII. A More Exact Argument

Politics will always involve conflict because fairness takes many forms.[\[89\]](#fn89) Equality, need, merit, efficiency, order, liberty, responsibility, and mercy cannot all govern the same decision.[\[90\]](#fn90) A free people will argue about which principle should control, especially when resources are scarce and consequences are immediate.[\[91\]](#fn91)

While absolute harmony may be an appealing ideal, in politics it often comes at the expense of dissent and open debate.[\[92\]](#fn92) The more valuable pursuit is a process that clarifies competing principles and sharpens disagreement, allowing arguments to unfold with precision rather than being stifled by calls for superficial peace.[\[93\]](#fn93)

Evaluating political arguments demands thoughtful scrutiny rather than quick agreement or reflexive skepticism.[\[94\]](#fn94) Each proposal should be examined for the problem it aims to address, the fairness principle it invokes, and the evidence supporting claims of good or bad faith.[\[95\]](#fn95) Remedies, elegant or otherwise, require careful consideration of who bears the costs and benefits, the structures of decision-making they entail, and the powers they establish.[\[96\]](#fn96) By shifting the debate toward substance and responsibility, we clarify what is at stake in every appeal to fairness.[\[97\]](#fn97)

That habit has made politics less corrosive for me. It has helped me listen for the underlying principle before responding to policy. It has helped me distinguish between motive and remedy, and between remedy and consequence. It has made me cautious of any politics that treats its own definition of fairness as self-evident.[\[98\]](#fn98)

In a free society, fairness will be strained.[\[99\]](#fn99) The task is to identify those divisions honestly, argue from principle, evaluate remedies by their consequences, and impose necessary constraints on resulting power.[\[100\]](#fn100) The opposing party may still be mistaken, even dangerously so, but the initial inquiry should be more precise than an accusation.[\[101\]](#fn101)

---

1. *See* Jon Lamont & Christi Favor, *Distributive Justice*, Stanford Encyclopedia of Philosophy, [https://plato.stanford.edu/entries/justice-distributive/](https://plato.stanford.edu/entries/justice-distributive/?ref=thecommonplace.press) (last visited May 24, 2026) (explaining that principles of distributive justice provide moral guidance for political processes and structures that distribute benefits and burdens); Aristotle, *Politics* bk. III, ch. 9, [https://classics.mit.edu/Aristotle/politics.3.three.html](https://classics.mit.edu/Aristotle/politics.3.three.html?ref=thecommonplace.press) (last visited May 24, 2026) (framing political justice around equality and the question whether equality or inequality should control and in what respect). [↩︎](#fnref1)
2. *See* Lamont & Favor, *supra* note 1 (describing distributive-justice principles as principles governing the allocation of benefits and burdens); Fred D. Miller, Jr., *Aristotle’s Political Theory*, Stanford Encyclopedia of Philosophy, [https://plato.stanford.edu/entries/aristotle-politics/](https://plato.stanford.edu/entries/aristotle-politics/?ref=thecommonplace.press) (last visited May 24, 2026) (explaining that Aristotle treats constitutional arguments as applications of distributive justice). [↩︎](#fnref2)
3. *See* CDC Office of Readiness and Response, *Power Sources*, [https://www.cdc.gov/prepare-your-health/take-action/power-sources.html](https://www.cdc.gov/prepare-your-health/take-action/power-sources.html?ref=thecommonplace.press) (last visited May 24, 2026) (stating that power outages caused by large-scale disasters can last longer and can be life-threatening for people who depend on home-use medical devices); EPA, *Extreme Heat and Indoor Air Quality*, [https://www.epa.gov/emergencies-iaq/extreme-heat-and-indoor-air-quality](https://www.epa.gov/emergencies-iaq/extreme-heat-and-indoor-air-quality?ref=thecommonplace.press) (last visited May 24, 2026) (explaining that power outages can render cooling systems unusable and that rising indoor temperatures can cause heat exhaustion or heat stroke); National Weather Service, *Heat Safety Tips and Resources*, [https://www.weather.gov/safety/heat](https://www.weather.gov/safety/heat?ref=thecommonplace.press) (last visited May 24, 2026) (stating that infants and young children are particularly vulnerable to heat-related illness and death because their bodies are less able to adapt to heat than adults’ bodies); CenterPoint Energy, *How We Are Supporting Critical Care Customers*, [https://www.centerpointenergy.com/en-us/residential/customer-service/critical-care-customers?sa=HO](https://www.centerpointenergy.com/en-us/residential/customer-service/critical-care-customers?sa=HO&ref=thecommonplace.press) (last visited May 24, 2026) (stating that registered critical-care customers depend on electric-powered life-sustaining equipment); Insurance Information Institute, *When Disaster Strikes: Preparation, Response and Recovery for Your Business*, [https://www.iii.org/article/when-disaster-strikes-preparation-response-and-recovery](https://www.iii.org/article/when-disaster-strikes-preparation-response-and-recovery?ref=thecommonplace.press) (last visited May 24, 2026) (stating that businesses temporarily shut down or close forever after disasters and citing FEMA for the proposition that 40% of companies do not reopen after a disaster and another 25% fail within one year); U.S. Small Business Administration, *Disaster Assistance*, [https://www.sba.gov/funding-programs/disaster-assistance](https://www.sba.gov/funding-programs/disaster-assistance?ref=thecommonplace.press) (last visited May 24, 2026) (stating that SBA disaster loans may cover business operating expenses that could have been met had the disaster not occurred). [↩︎](#fnref3)
4. *See* Lamont & Favor, *supra* note 1 (explaining that distributive-justice principles guide the distribution of benefits and burdens); Aristotle, *Politics* bk. III, ch. 9, *supra* note 1 (asking whether equality or inequality should control and in what respect). [↩︎](#fnref4)
5. Deven Clarke, *Third Ward Neighbors Band Together Amid Ongoing Power Outages Caused by Hurricane Beryl*, KPRC 2 Click2Houston (July 10, 2024), [https://www.click2houston.com/news/local/2024/07/10/third-ward-neighbors-band-together-amid-ongoing-power-outages-caused-by-hurricane-beryl/](https://www.click2houston.com/news/local/2024/07/10/third-ward-neighbors-band-together-amid-ongoing-power-outages-caused-by-hurricane-beryl/?ref=thecommonplace.press) (quoting CenterPoint’s 10:09 p.m. response that crews first restore facilities “vital to safety, health and welfare,” including hospitals, water-treatment plants, and public-service facilities, and then repair electrical facilities that return power to the largest number of people first). [↩︎](#fnref5)
6. Michael Lopardi, *Here Is How Local Officials Prioritize Who Gets Their Power Restored After Storm*, KPRC 2 Click2Houston (Feb. 12, 2021), [https://www.click2houston.com/news/local/2021/02/13/here-is-how-local-officials-prioritize-who-gets-their-power-restored-after-storm/](https://www.click2houston.com/news/local/2021/02/13/here-is-how-local-officials-prioritize-who-gets-their-power-restored-after-storm/?ref=thecommonplace.press) (quoting CenterPoint spokesperson Olivia Koch that crews restore facilities key to community health and welfare first, then lines restoring the greatest number of customers in the least amount of time, and finally service drops and underground lines linked to individual homes). [↩︎](#fnref6)
7. *See* Clarke, *supra* note 5; Lopardi, *supra* note 6\. [↩︎](#fnref7)
8. *See* Lopardi, *supra* note 6 (describing individualized service drops and underground lines as later-stage restoration work); CenterPoint Energy, *Power Restoration and Safety Information*, [https://www.centerpointenergy.com/en-us/Safety/Pages/power-restoration\_safety-information.aspx?au=res&sa=ho](https://www.centerpointenergy.com/en-us/Safety/Pages/power-restoration%5Fsafety-information.aspx?au=res&sa=ho&ref=thecommonplace.press) (last visited May 24, 2026) (stating that CenterPoint repairs the electric-delivery system up to the point where it connects to a home or business, while customer-side meter-box or weatherhead damage is the customer’s responsibility). [↩︎](#fnref8)
9. *See* Lamont & Favor, *supra* note 1 (surveying competing principles of distributive justice); Aristotle, *Politics* bk. V, ch. 1, [https://classics.mit.edu/Aristotle/politics.5.five.html](https://classics.mit.edu/Aristotle/politics.5.five.html?ref=thecommonplace.press) (last visited May 24, 2026) (stating that factions agree justice is proportional but disagree over whether equality or inequality in one respect should control absolutely); James Madison, *The Federalist No. 10*, Yale Law School Avalon Project, [https://avalon.law.yale.edu/18th\_century/fed10.asp](https://avalon.law.yale.edu/18th%5Fcentury/fed10.asp?ref=thecommonplace.press) (last visited May 24, 2026) (arguing that different opinions and interests arise from human reason, self-love, and unequal property, and that regulating “various and interfering interests” is a principal task of legislation). [↩︎](#fnref9)
10. *See* Stefan Gosepath, *Equality*, Stanford Encyclopedia of Philosophy, [https://plato.stanford.edu/entries/equality/](https://plato.stanford.edu/entries/equality/?ref=thecommonplace.press) (last visited May 24, 2026) (describing equality as a contested concept with rhetorical power in political argument and explaining that equality requires specification of the relevant standard of comparison); Lamont & Favor, *supra* note 1 (surveying competing principles for distributing benefits and burdens). [↩︎](#fnref10)
11. *See* Madison, *supra* note 9 (describing legislation as the regulation of various and interfering interests); Lamont & Favor, *supra* note 1 (explaining that principles of distributive justice guide allocation of benefits and burdens). [↩︎](#fnref11)
12. *See* *The Federalist No. 51*, Yale Law School Avalon Project, [https://avalon.law.yale.edu/18th\_century/fed51.asp](https://avalon.law.yale.edu/18th%5Fcentury/fed51.asp?ref=thecommonplace.press) (last visited May 24, 2026) (arguing that government must be structured so that it controls the governed and then obliges itself to control itself). [↩︎](#fnref12)
13. *See* Jesse Graham, Jonathan Haidt & Brian A. Nosek, *Liberals and Conservatives Rely on Different Sets of Moral Foundations*, 96 J. Personality & Soc. Psych. 1029, 1029–30 (2009), [https://doi.org/10.1037/a0015141](https://doi.org/10.1037/a0015141?ref=thecommonplace.press) (finding differences in how liberals and conservatives use moral foundations and describing ideological commitments as moral commitments); Pew Research Center, *In 25-Country Survey, Americans Especially Likely To View Fellow Citizens as Morally Bad* (Mar. 5, 2026), [https://www.pewresearch.org/religion/2026/03/05/in-25-country-survey-americans-especially-likely-to-view-fellow-citizens-as-morally-bad/](https://www.pewresearch.org/religion/2026/03/05/in-25-country-survey-americans-especially-likely-to-view-fellow-citizens-as-morally-bad/?ref=thecommonplace.press) (reporting that Americans are unusually likely to rate fellow citizens as morally bad). [↩︎](#fnref13)
14. *See* Graham, Haidt & Nosek, *supra* note 13 (finding differences in moral foundations across liberal and conservative respondents); Gosepath, *supra* note 10 (explaining that equality is contested and that different standards yield different conceptions). [↩︎](#fnref14)
15. *See* Graham, Haidt & Nosek, *supra* note 13; Pew Research Center, *supra* note 13\. [↩︎](#fnref15)
16. *See* Lamont & Favor, *supra* note 1 (distinguishing principles of distributive justice without treating all principles as equally correct); Madison, *supra* note 9 (warning that parties and factions may be actuated by passion or interest adverse to rights or the community’s permanent interests). [↩︎](#fnref16)
17. *See* Peter G. Peterson Foundation, *What Are the Pros and Cons of Student Loan Forgiveness?*, [https://www.pgpf.org/article/what-are-the-pros-and-cons-of-student-loan-forgiveness/](https://www.pgpf.org/article/what-are-the-pros-and-cons-of-student-loan-forgiveness/?ref=thecommonplace.press) (last visited May 24, 2026) (explaining that student-debt cancellation could help many borrowers while also carrying fiscal costs, distributional concerns, and limited effects on economic output); West Virginia v. EPA, 597 U.S. 697, 723–24 (2022), [https://www.supremecourt.gov/opinions/21pdf/20-1530\_n758.pdf](https://www.supremecourt.gov/opinions/21pdf/20-1530%5Fn758.pdf?ref=thecommonplace.press) (requiring clear congressional authorization when an agency asserts power of vast economic and political significance). [↩︎](#fnref17)
18. *See* Graham, Haidt & Nosek, *supra* note 13; Jack Blumenau & Benjamin E. Lauderdale, *Liberals and Conservatives Rely on Very Similar Sets of Foundations When Comparing Moral Violations*, 119 Am. Pol. Sci. Rev. 746, 746–47 (2025), [https://doi.org/10.1017/S0003055424000492](https://doi.org/10.1017/S0003055424000492?ref=thecommonplace.press) (arguing that voters on the left and right share broadly similar moral intuitions when comparing moral violations). [↩︎](#fnref18)
19. *See* Madison, *supra* note 9; *The Federalist No. 51*, *supra* note 12; Lamont & Favor, *supra* note 1\. [↩︎](#fnref19)
20. *See* Gosepath, *supra* note 10 (explaining that equality requires a relevant standard of comparison and that different conceptions of equality arise from different standards); Lamont & Favor, *supra* note 1 (surveying competing distributive principles). [↩︎](#fnref20)
21. *See* Aristotle, *Politics* bk. V, ch. 1, *supra* note 9 (stating that democrats and oligarchs err by treating equality or inequality in one respect as absolute); Miller, *supra* note 2 (explaining Aristotle’s treatment of constitutional arguments as applications of distributive justice). [↩︎](#fnref21)
22. *See* Aristotle, *Politics* bk. III, ch. 9, *supra* note 1; Lamont & Favor, *supra* note 1\. [↩︎](#fnref22)
23. *See* Aristotle, *Politics* bk. III, ch. 9, *supra* note 1; Miller, *supra* note 2\. [↩︎](#fnref23)
24. *See* Aristotle, *Politics* bk. III, ch. 9, *supra* note 1 (describing democratic and oligarchic claims about equality and political justice); Miller, *supra* note 2 (discussing Aristotle’s analysis of democratic and oligarchic claims as applications of distributive justice). [↩︎](#fnref24)
25. *See* Aristotle, *Politics* bk. III, ch. 9, *supra* note 1 (stating that the parties “only express a sort of justice” and speak from “a limited and partial justice” while treating their claims as complete); *see also* Aristotle, *Politics* bk. V, ch. 1, *supra* note 9 (describing error when equality or inequality in one respect is treated as equality or inequality absolutely). [↩︎](#fnref25)
26. Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref26)
27. *See* Miller, *supra* note 2 (stating that Aristotle’s particular justice means equality or fairness and includes distributive justice); Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref27)
28. *See* Lamont & Favor, *supra* note 1; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref28)
29. *See* Aristotle, *Politics* bk. III, ch. 9, *supra* note 1; Aristotle, *Politics* bk. V, ch. 1, *supra* note 9\. [↩︎](#fnref29)
30. *See* Aristotle, *Politics* bk. III, ch. 9, *supra* note 1; *The Federalist No. 51*, *supra* note 12\. [↩︎](#fnref30)
31. *See* Lamont & Favor, *supra* note 1; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref31)
32. *See* Madison, *supra* note 9 (describing politics as involving “various and interfering interests”); Lamont & Favor, *supra* note 1\. [↩︎](#fnref32)
33. *See* Gosepath, *supra* note 10; Lamont & Favor, *supra* note 1; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref33)
34. *See* NYC Public Schools, *Specialized High Schools*, [https://www.schools.nyc.gov/enrollment/enroll-grade-by-grade/specialized-high-schools](https://www.schools.nyc.gov/enrollment/enroll-grade-by-grade/specialized-high-schools?ref=thecommonplace.press) (last visited May 24, 2026) (describing selective public high-school admissions for eight testing Specialized High Schools using the Specialized High Schools Admissions Test). [↩︎](#fnref34)
35. *See id.* (stating that students with the highest SHSAT scores receive offers first and that the SHSAT is the only criterion used to admit students to the eight testing Specialized High Schools). [↩︎](#fnref35)
36. *See* Houston Independent School District, *K-12 Application Dates & Process*, [https://schoolchoice.houstonisd.org/k-12-application/k-12-application2](https://schoolchoice.houstonisd.org/k-12-application/k-12-application2?ref=thecommonplace.press) (last visited May 24, 2026) (stating that all eligible Phase I applications are entered into a lottery to determine seat placements and that eligible students not offered a seat are automatically placed on a waitlist). [↩︎](#fnref36)
37. *See* NYC Public Schools, *Discovery Programs*, [https://www.schools.nyc.gov/enrollment/enroll-grade-by-grade/specialized-high-schools/discovery-programs](https://www.schools.nyc.gov/enrollment/enroll-grade-by-grade/specialized-high-schools/discovery-programs?ref=thecommonplace.press) (last visited May 24, 2026) (describing the Discovery Program as serving certain disadvantaged students who scored within a certain range on the SHSAT and may attend a testing Specialized High School after completing a summer program). The sentence uses the broader phrase “students from weaker schools” as an illustrative fairness theory; the cited program supports a narrower admissions example involving disadvantaged students and school-based eligibility. [↩︎](#fnref37)
38. *See* Adam Goldstein & Orestes P. Hastings, *School Quality Influences Where Parents Choose to Live—and How Much They’re Willing to Pay for Their Homes*, Urban Institute Housing Matters (Jan. 8, 2020), [https://archive-housingmatters.urban.org/research-summary/school-quality-influences-where-parents-choose-live-and-how-much-theyre-willing/](https://archive-housingmatters.urban.org/research-summary/school-quality-influences-where-parents-choose-live-and-how-much-theyre-willing/?ref=thecommonplace.press) (summarizing research finding that where a family lives commonly designates where a child attends school, school quality and housing price are linked, and families with children take on greater housing-cost increases for the same improvement in school quality); Milliken v. Bradley, 418 U.S. 717, 741–42 (1974) (recognizing local control over schools as a longstanding educational tradition); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 49–50 (1973) (discussing local taxation and control in public education). [↩︎](#fnref38)
39. *See* Lamont & Favor, *supra* note 1; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref39)
40. *See* National Academies of Sciences, Engineering, and Medicine, *Proactive Policing: Effects on Crime and Communities* 1–4 (2018), [https://nap.nationalacademies.org/catalog/24928/proactive-policing-effects-on-crime-and-communities](https://nap.nationalacademies.org/catalog/24928/proactive-policing-effects-on-crime-and-communities?ref=thecommonplace.press) (last visited May 24, 2026) (examining policing strategies intended to prevent and reduce crime and their effects on communities); Urban Institute, *The National Initiative for Building Community Trust and Justice: Key Process and Outcome Evaluation Findings* 1 (2019), [https://www.urban.org/sites/default/files/2024-01/National\_Initiative\_Building\_Community\_Trust\_Key\_Findings.pdf](https://www.urban.org/sites/default/files/2024-01/National%5FInitiative%5FBuilding%5FCommunity%5FTrust%5FKey%5FFindings.pdf?ref=thecommonplace.press) (stating that communities experiencing high levels of crime and concentrated disadvantage, particularly communities of color, also distrust police and are less likely to report crimes or partner on crime-prevention efforts). [↩︎](#fnref40)
41. *See* National Academies, *supra* note 40; Urban Institute, *supra* note 40\. [↩︎](#fnref41)
42. *See* Lamont & Favor, *supra* note 1; National Academies, *supra* note 40; Urban Institute, *supra* note 40\. [↩︎](#fnref42)
43. *See* Biden v. Nebraska, 600 U.S. 477, 490–95, 506 (2023), [https://www.supremecourt.gov/opinions/22pdf/22-506\_nmip.pdf](https://www.supremecourt.gov/opinions/22pdf/22-506%5Fnmip.pdf?ref=thecommonplace.press) (describing the Biden Administration’s student-loan-discharge program and holding that the HEROES Act did not authorize the Secretary’s debt-cancellation plan); Peter G. Peterson Foundation, *supra* note 17 (summarizing arguments for and against student-loan forgiveness). [↩︎](#fnref43)
44. *See* Adam Looney, *The Student Debt Burden and Its Impact on Racial Justice, Borrowers, and the Economy*, Brookings (Apr. 13, 2021), [https://www.brookings.edu/articles/the-student-debt-burden-and-its-impact-on-racial-justice-borrowers-and-the-economy/](https://www.brookings.edu/articles/the-student-debt-burden-and-its-impact-on-racial-justice-borrowers-and-the-economy/?ref=thecommonplace.press) (testifying that federal student loans impose heavy burdens on many borrowers, especially those from lower-income families, first-generation students, and students of color); Peter G. Peterson Foundation, *supra* note 17 (describing proponents’ view that debt relief could improve borrowers’ financial health). [↩︎](#fnref44)
45. *See* Peter G. Peterson Foundation, *supra* note 17 (explaining objections that student-debt forgiveness would be costly, could provide outsized benefits to high-income households, and would not address the drivers of student debt); Biden, 600 U.S. at 490–95 (describing the scale of the cancellation program and the legal challenge to executive authority). [↩︎](#fnref45)
46. *See* Biden, 600 U.S. at 490–95, 506; Lamont & Favor, *supra* note 1\. [↩︎](#fnref46)
47. *See* Lamont & Favor, *supra* note 1\. [↩︎](#fnref47)
48. *See* Gosepath, *supra* note 10; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref48)
49. *See* AEI/Brookings Working Group on Poverty and Opportunity, *Opportunity, Responsibility, and Security: A Consensus Plan for Reducing Poverty and Restoring the American Dream* 5–10 (2015), [https://www.brookings.edu/wp-content/uploads/2016/07/full-report.pdf](https://www.brookings.edu/wp-content/uploads/2016/07/full-report.pdf?ref=thecommonplace.press) (describing poverty, opportunity, family, work, and education as intertwined policy concerns and explaining that political disagreement often arises when proposed solutions rest on different premises); Madison, *supra* note 9\. [↩︎](#fnref49)
50. *See* AEI/Brookings Working Group, *supra* note 49, at 5–10, 54–69 (framing poverty policy around opportunity, work, family, and education); U.S. Bureau of Labor Statistics, *Employment Barriers Within Low- and Moderate-Income Communities*, Monthly Labor Review (Mar. 2020), [https://www.bls.gov/opub/mlr/2020/beyond-bls/employment-barriers-within-low-and-moderate-income-communities.htm](https://www.bls.gov/opub/mlr/2020/beyond-bls/employment-barriers-within-low-and-moderate-income-communities.htm?ref=thecommonplace.press) (summarizing research identifying job availability and pay, qualifications, education and training, transportation, childcare and family issues, crime and substance abuse, housing instability, health, and public-assistance programs as employment barriers in low- and moderate-income communities). [↩︎](#fnref50)
51. *See* AEI/Brookings Working Group, *supra* note 49, at 30–41 (chapter on family); Ron Haskins, *Fighting Poverty Through Incentives and Work Mandates for Young Men*, Brookings (Sept. 1, 2007), [https://www.brookings.edu/articles/fighting-poverty-through-incentives-and-work-mandates-for-young-men/](https://www.brookings.edu/articles/fighting-poverty-through-incentives-and-work-mandates-for-young-men/?ref=thecommonplace.press) (discussing family, schools, churches, peer groups, and civic associations in relation to young men and poverty). [↩︎](#fnref51)
52. *See* Haskins, *supra* note 51 (examining wage subsidies and work requirements as policies intended to increase employment and earnings and reduce crime, unemployment, nonmarital births, and poverty); AEI/Brookings Working Group, *supra* note 49, at 42–53 (chapter on work). [↩︎](#fnref52)
53. *See* National Academies, *supra* note 40; Madison, *supra* note 9\. [↩︎](#fnref53)
54. *See* U.S. Department of Treasury, Council of Economic Advisers & U.S. Department of Labor, *Occupational Licensing: A Framework for Policymakers* 4 (July 2015), [https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing\_report\_final\_nonembargo.pdf](https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing%5Freport%5Ffinal%5Fnonembargo.pdf?ref=thecommonplace.press) (stating that licensing can reduce employment opportunities, lower wages for excluded workers, and increase costs for consumers); Federal Trade Commission, *Economic Liberty*, [https://www.ftc.gov/policy/advocacy-research/advocacy/economic-liberty](https://www.ftc.gov/policy/advocacy-research/advocacy/economic-liberty?ref=thecommonplace.press) (last visited May 24, 2026) (stating that unnecessary licensing restrictions can close the door on job opportunities, prevent workers from marketing their skills, reduce entrepreneurship, and stifle competition). [↩︎](#fnref54)
55. *See* AEI/Brookings Working Group, *supra* note 49; Graham, Haidt & Nosek, *supra* note 13\. [↩︎](#fnref55)
56. *See* Pew Research Center, *supra* note 13; Graham, Haidt & Nosek, *supra* note 13; Blumenau & Lauderdale, *supra* note 18\. [↩︎](#fnref56)
57. *See* Peter G. Peterson Foundation, *supra* note 17; Looney, *supra* note 44\. These sources support the proposition that a policy can be defended by humane goals while remaining subject to cost, distributional, and consequence-based critique. [↩︎](#fnref57)
58. *See* Peter G. Peterson Foundation, *supra* note 17; West Virginia, 597 U.S. at 723–24; Madison, *supra* note 9\. [↩︎](#fnref58)
59. *See* U.S. Department of Treasury et al., *supra* note 54; Haskins, *supra* note 51\. [↩︎](#fnref59)
60. *See* *The Federalist No. 51*, *supra* note 12; West Virginia, 597 U.S. at 723–24\. This citation supports the concern about discretion and broad agency power, not the rhetorical phrase “charge of cruelty.” [↩︎](#fnref60)
61. *See* Lamont & Favor, *supra* note 1; Peter G. Peterson Foundation, *supra* note 17; West Virginia, 597 U.S. at 723–24\. [↩︎](#fnref61)
62. *See* Lamont & Favor, *supra* note 1; Peter G. Peterson Foundation, *supra* note 17\. [↩︎](#fnref62)
63. *See* Gosepath, *supra* note 10 (describing equality as contested and rhetorically powerful); Lamont & Favor, *supra* note 1\. [↩︎](#fnref63)
64. *See* Lamont & Favor, *supra* note 1 (discussing distributive principles including welfare, equality, desert, and liberty); Gosepath, *supra* note 10 (discussing equality as a prescriptive political concept requiring a standard of comparison); 15 U.S.C. § 45(a)(1) (declaring unfair methods of competition and unfair or deceptive acts or practices unlawful); National Archives, *Interstate Commerce Act (1887)*, [https://www.archives.gov/milestone-documents/interstate-commerce-act](https://www.archives.gov/milestone-documents/interstate-commerce-act?ref=thecommonplace.press) (last visited May 24, 2026) (describing early federal regulation aimed at railroad rates and discriminatory practices); U.S. Department of Treasury et al., *supra* note 54; Federal Trade Commission, *supra* note 54\. [↩︎](#fnref64)
65. *See* Gosepath, *supra* note 10; Lamont & Favor, *supra* note 1; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref65)
66. *See* Lamont & Favor, *supra* note 1; Madison, *supra* note 9; *The Federalist No. 51*, *supra* note 12\. [↩︎](#fnref66)
67. *See* Gosepath, *supra* note 10; Lamont & Favor, *supra* note 1\. [↩︎](#fnref67)
68. *See* Pew Research Center, *supra* note 13; Pew Research Center, *What Do Americans Consider Immoral?* (Mar. 19, 2026), [https://www.pewresearch.org/religion/2026/03/19/what-do-americans-consider-immoral/](https://www.pewresearch.org/religion/2026/03/19/what-do-americans-consider-immoral/?ref=thecommonplace.press). [↩︎](#fnref68)
69. Pew Research Center, *supra* note 13\. [↩︎](#fnref69)
70. *Id.* [↩︎](#fnref70)
71. Pew Research Center, *What Do Americans Consider Immoral?*, *supra* note 68; Pew Research Center, *Appendix: Detailed Tables*, [https://www.pewresearch.org/religion/2026/03/19/appendix-detailed-tables-us-morality/](https://www.pewresearch.org/religion/2026/03/19/appendix-detailed-tables-us-morality/?ref=thecommonplace.press) (last visited May 24, 2026) (listing morality responses for pornography, marijuana, divorce, homosexuality, the death penalty, spanking children, abortion, and being extremely rich). [↩︎](#fnref71)
72. *See* Pew Research Center, *supra* note 13; Graham, Haidt & Nosek, *supra* note 13; Madison, *supra* note 9\. [↩︎](#fnref72)
73. *See* *The Federalist No. 51*, *supra* note 12; Madison, *supra* note 9\. [↩︎](#fnref73)
74. *The Federalist No. 51*, *supra* note 12\. [↩︎](#fnref74)
75. *Id.* [↩︎](#fnref75)
76. *See id.* [↩︎](#fnref76)
77. *See* Clarke, *supra* note 5; Lopardi, *supra* note 6\. [↩︎](#fnref77)
78. *See* Lopardi, *supra* note 6; CenterPoint Energy, *Power Restoration and Safety Information*, *supra* note 8\. [↩︎](#fnref78)
79. *See* Lamont & Favor, *supra* note 1; *The Federalist No. 51*, *supra* note 12\. [↩︎](#fnref79)
80. *See* *The Federalist No. 51*, *supra* note 12; West Virginia, 597 U.S. at 723–24\. [↩︎](#fnref80)
81. *See* *The Federalist No. 51*, *supra* note 12; U.S. Const. art. I, § 1; U.S. Const. art. II, § 1; U.S. Const. art. III, § 1\. [↩︎](#fnref81)
82. *See* *The Federalist No. 51*, *supra* note 12; Madison, *supra* note 9\. [↩︎](#fnref82)
83. *See* Lamont & Favor, *supra* note 1; *The Federalist No. 51*, *supra* note 12\. [↩︎](#fnref83)
84. *See* West Virginia, 597 U.S. at 723–24; *The Federalist No. 51*, *supra* note 12\. [↩︎](#fnref84)
85. *See* *The Federalist No. 51*, *supra* note 12; Madison, *supra* note 9; West Virginia, 597 U.S. at 723–24\. [↩︎](#fnref85)
86. *See* *The Federalist No. 51*, *supra* note 12; Madison, *supra* note 9\. [↩︎](#fnref86)
87. *See id.*; Madison, *supra* note 9; U.S. Department of Treasury et al., *supra* note 54\. [↩︎](#fnref87)
88. *See* *The Federalist No. 51*, *supra* note 12 (arguing that government requires internal controls because those administering power are human); Madison, *supra* note 9 (warning that no man should be judge in his own cause because interest biases judgment). [↩︎](#fnref88)
89. *See* Lamont & Favor, *supra* note 1; Gosepath, *supra* note 10\. [↩︎](#fnref89)
90. *See* Lamont & Favor, *supra* note 1 (surveying distributive theories including equality, priority to the least advantaged, desert, welfare, and liberty); Aristotle, *Politics* bk. V, ch. 1, *supra* note 9\. [↩︎](#fnref90)
91. *See* Madison, *supra* note 9; *The Federalist No. 51*, *supra* note 12\. [↩︎](#fnref91)
92. *See* Madison, *supra* note 9 (stating that liberty is to faction what air is to fire and that abolishing liberty to remove faction would be worse than the disease). [↩︎](#fnref92)
93. *See id.*; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref93)
94. *See* Gosepath, *supra* note 10; Lamont & Favor, *supra* note 1\. [↩︎](#fnref94)
95. *See* Madison, *supra* note 9; *The Federalist No. 51*, *supra* note 12\. [↩︎](#fnref95)
96. *See* Lamont & Favor, *supra* note 1; West Virginia, 597 U.S. at 723–24\. [↩︎](#fnref96)
97. *See* Gosepath, *supra* note 10; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref97)
98. *See* Gosepath, *supra* note 10; Lamont & Favor, *supra* note 1\. [↩︎](#fnref98)
99. *See* Madison, *supra* note 9\. [↩︎](#fnref99)
100. *See* Lamont & Favor, *supra* note 1; *The Federalist No. 51*, *supra* note 12; West Virginia, 597 U.S. at 723–24\. [↩︎](#fnref100)
101. *See* Graham, Haidt & Nosek, *supra* note 13; Blumenau & Lauderdale, *supra* note 18; Aristotle, *Politics* bk. III, ch. 9, *supra* note 1\. [↩︎](#fnref101)
### Seeing Was Believing: Deepfakes, Rule 901, and Process Proof for Audiovisual Evidence
URL: https://www.thecommonplace.press/seeing-was-believing/
Last updated: 2026-05-20T19:25:36.000Z
## Abstract

Generative artificial intelligence has made it cheap to create audio, video, and photographs that appear to capture a person, statement, place, or event. Evidence law must account for that change because courts and juries regularly receive audiovisual evidence to prove occurrence, identity, assent, or conduct. A recording may identify a speaker. A photograph may show the condition of a place. A video may show what a person did.

Each use depends on a foundation linking the item to the fact it is offered to prove. Rule 901 requires evidence sufficient to support a finding that the item is what the proponent claims it is. Rule 902 permits specified records and electronic evidence to be self-authenticated by rule or certification. Rule 702 governs expert testimony and reliability. Together, these rules require the proponent to connect audiovisual evidence to the factual claim made about it, rather than letting appearance carry the proof by itself.

Deepfakes make that foundational connection harder to assess because they reduce the cost of creating evidence that appears genuine. NIST states that deepfake creation is now a low-cost, low-effort process and that current detection systems can lose 45 to 50 percent of their performance when moved from academic testing to operational deployment.[\[1\]](#fn1) A 2023 PLOS ONE study found that 529 listeners correctly identified speech deepfakes only 73 percent of the time in English and Mandarin experiments.[\[2\]](#fn2) Those findings do not establish that every fake is indistinguishable from genuine evidence, but they show that courts should hesitate before allowing appearance alone to carry the evidentiary force it once carried.

This Article describes that reduced force as the credibility discount. The credibility discount is the reduced default confidence that decisionmakers give audiovisual evidence once synthetic media becomes common enough that appearance alone can no longer support the same inference. The discount is not a rule of admissibility. It explains why Rule 901 disputes over audiovisual evidence should require closer attention to source, custody, metadata, corroboration, and forensic review.

To translate the credibility discount into authentication practice, this Article proposes a process-proof approach. When the proponent offers audiovisual evidence to prove identity, occurrence, assent, or conduct, and the opponent identifies concrete grounds to suspect AI generation or material alteration, the court should require foundation evidence matched to the claim made about the item. That foundation may include testimony from the person who captured the evidence, device records, platform records, timestamps, hash values, chain of custody, metadata, forensic review, or independent corroboration.

The process-proof approach should remain narrow. A party seeking a deepfake hearing should identify concrete grounds for doubt, rather than rely on the mere possibility of AI generation. Once that showing is made, the proponent should establish more than the existence of a file. The proponent should show why the file is what the proponent claims it is and why the file supports the factual inference for which it is offered.

## Introduction

Evidence law permits a party to prove a fact by connecting an item to the person, event, place, or condition it is offered to establish. A signature may show assent when it can be tied to the signer. A recording may identify a speaker when it can be tied to the voice and the circumstances of capture. A photograph may show the condition of a place when it can be tied to a source, time, and location. A video may show conduct when it can be tied to the event it appears to depict. Each inference depends on more than the item's appearance. It depends on a foundation linking the item to the fact the proponent asks it to prove.

Audiovisual evidence carries unusual force because it makes the event feel closer to the factfinder. Testimony requires the factfinder to credit a witness's memory. A document requires the factfinder to interpret written words. A recording lets the factfinder hear an apparent speaker, and a video lets the factfinder watch apparent conduct. That sensory quality gives audiovisual evidence practical power in settlement negotiations, workplace investigations, compliance reviews, board decisions, agency proceedings, and jury deliberations.

Because that sensory quality can give audiovisual evidence more persuasive force than its foundation warrants, evidence law has long treated it with caution. Rule 901 requires the proponent to produce evidence sufficient to support a finding that the item is what the proponent claims.[\[3\]](#fn3) Rule 403 permits exclusion when probative value is substantially outweighed by dangers such as unfair prejudice, confusion, or misleading the jury.[\[4\]](#fn4) Those rules rest on a practical concern: an exhibit can persuade beyond the inference its foundation supports.

That foundation problem has become harder because generative AI lowers the cost of fabrication. A synthetic voice, image, or video can now be made with less money, less skill, and less access than older forms of audiovisual deception usually required. The lower cost weakens the ordinary inference from appearance. When fabrication becomes easier, a file that looks or sounds genuine gives less reason, by itself, to believe that it came from the asserted source or captured the asserted event.

That weakened inference has already appeared outside court. In January 2024, Hong Kong police received a report after an employee transferred HK$200 million in fifteen transactions to five local bank accounts following a video conference with people who appeared to be company officers. Arup later confirmed that it was the company involved and that fake voices and images were used.[\[5\]](#fn5) The fraud worked because the employee saw and heard apparent authority in a familiar business setting.

The litigation problem therefore runs in both directions. A party may offer synthetic evidence as genuine. A defendant may also try to escape genuine evidence by saying, in effect, "that is AI." Chesney and Citron call this second risk the liar's dividend: as the public learns that audio and video can be convincingly faked, a person accused by genuine audiovisual evidence may find it easier to deny what the evidence shows. For Rule 901, courts must screen false exhibits without letting a bare deepfake accusation weaken genuine ones.[\[6\]](#fn6)

The same dynamic can arise in litigation. A party may offer a recording to prove that a defendant made a threat, a video to prove that a person entered a building, or a photograph to prove the condition of property. In each setting, the opponent may have concrete grounds to suspect AI generation or material alteration. But the challenge should be grounded in the item itself, its source, its custody, or surrounding evidence. A party should not be able to convert every damaging recording into an authentication contest by invoking AI in the abstract.

Courts should address that challenge at the Rule 901 stage before leaving it to weight. When audiovisual evidence is offered to prove identity, occurrence, assent, or conduct, and the opponent identifies concrete grounds to suspect AI generation or material alteration, the proponent should supply process proof matched to the claim made about the item. That proof may include source, custody, metadata, device records, platform records, hash values, forensic review, or independent corroboration. The point is limited: as appearance becomes easier to manufacture, appearance alone should carry less authentication force, while a bare accusation of artificiality should carry no force at all.[\[7\]](#fn7)

## I. The Old Audiovisual Baseline

Traditional evidence law already had tools for familiar audiovisual distortion. A photograph could be staged or cropped. A recording could be clipped or removed from context. A video could mislead through angle, timing, lighting, editing, or omission.[\[8\]](#fn8) Rules 901 and 403 allowed courts to test those risks by asking what the item was and whether its persuasive force exceeded its proper evidentiary use.

In practice, however, audiovisual evidence often carried unusual force because it seemed to present the event itself.[\[9\]](#fn9) A witness described what he saw; a video seemed to show the conduct. A witness identified a voice; a recording seemed to preserve the speaker's words, tone, and cadence. The medium shortened the perceived path between proof and event.

That practical force rested partly on the old cost structure of fabrication. Before modern generative tools, a convincing fake image, recording, or video usually required source material, technical skill, equipment, and time. Those barriers left room for deception, yet they limited who could make convincing fakes, how quickly they could be made, and how widely they could be deployed.

That cost structure shaped routine authentication practice, even if doctrine rarely named it. Courts could rely on familiar Rule 901 methods because those methods often carried enough force in ordinary cases. A witness with knowledge could identify a photograph. A person familiar with a voice could identify a speaker. Distinctive characteristics could authenticate a writing, recording, or image. Those methods remain useful, but their force depends on factual assumptions that generative AI has weakened.

The old baseline was therefore practical rather than formal. Evidence law never adopted "seeing is believing" as a rule, but many factfinders still treated audiovisual evidence as if appearance supplied a shortcut to trust.[\[10\]](#fn10)

## II. Deepfakes and the Cost of Fabrication

False evidence long predates generative AI. Parties have offered forged documents, staged photographs, edited recordings, and false testimony for as long as courts have tried to separate proof from deception. Deepfakes change the baseline because they make persuasive false audiovisual evidence cheaper to create, easier to distribute, and available to people who lack older forms of technical skill, equipment, or production access.[\[11\]](#fn11)

NIST describes that shift in practical terms. It characterizes deepfake creation as a low-cost, low-effort process that is widely available, and states that a social-media photograph can be transformed into a hyper-realistic deepfake in seconds.[\[12\]](#fn12) NIST also reports that current detection systems can lose 45 to 50 percent of their performance when moved from academic evaluation to operational deployment.[\[13\]](#fn13) Those findings support a limited evidentiary point: fabrication is easier to attempt, and detection should be treated as one possible tool rather than a complete answer to every authentication dispute.

Speech deepfakes create the same problem for voice identification. In a PLOS ONE study by Kimberly Mai, Sergi Bray, Toby Davies, and Lewis Griffin, 529 participants heard genuine and deepfake audio in English and Mandarin and correctly identified the deepfakes 73 percent of the time.[\[14\]](#fn14) The authors found that examples improved listener performance only slightly.[\[15\]](#fn15) Those results counsel caution when a disputed recording depends heavily on voice resemblance.

The scale of investment and institutional adoption points in the same direction. Stanford's 2025 AI Index reported $33.9 billion in global private investment in generative AI in 2024, an 18.7 percent increase from 2023, and reported that 78 percent of organizations used AI in 2024, up from 55 percent in 2023.[\[16\]](#fn16) Those figures fall short of proving that deepfakes will defeat every factfinder, but they do support a narrower point: generative tools are likely to become more common in institutional life, including the settings where audiovisual evidence is created, preserved, and later offered as proof.

That risk has already appeared in law-enforcement warnings. The FBI's Internet Crime Complaint Center warned in December 2024 that criminals use AI-generated images for fake profiles and identification documents, AI-generated audio to impersonate public figures and personal relations, and AI-generated video for chats with alleged company executives or other authority figures.[\[17\]](#fn17) Those uses map onto the same inferences courts often draw from audiovisual evidence: identity, authority, and occurrence.

The Hong Kong transfer incident shows how that operational risk becomes an evidentiary problem.[\[18\]](#fn18) The employee acted after seeing and hearing apparent officers in a video conference. If the same format appears in litigation as an exhibit, the court's task will be to decide whether the item is what the proponent claims and whether its source, custody, and surrounding circumstances support the inference for which it is offered.

## III. Rule 901 and the File-Truth Gap

Rule 901 gives courts the doctrinal tool for separating file identity from factual truth because authentication turns on the proponent's claim about the item. The rule asks whether the proponent has produced evidence sufficient to support a finding that the item is what the proponent claims it is.[\[19\]](#fn19) In deepfake disputes, that inquiry must be claim-specific. A party may claim that a file came from a phone, that it was produced in discovery, that it was uploaded to a platform, that it depicts a person, that it records a statement, or that it captures an event. Those claims are related, but each may require a different foundation.

A single exhibit can satisfy one authentication claim while leaving another unsupported. The proponent may show that the exhibit is the same file collected from a phone. That showing establishes file identity, but it does not establish that the file depicts the asserted event. The proponent may show that a recording was produced in discovery. That showing establishes production history, but it does not identify the speaker. The proponent may show that a photograph was uploaded to a platform. That showing establishes platform presence, but it does not establish the place, date, or condition depicted.

That distinction is the file-truth gap. A file can be authentic as a file while remaining unproven as evidence of the asserted event. A chain of custody, production record, or platform record may show that the exhibit is the same file collected from a device or account. It does not automatically show that the file depicts the event, speaker, conduct, or condition the proponent asks the factfinder to infer. Rule 901 should prevent that collapse by requiring foundation evidence directed to the particular inference the proponent seeks to draw.[\[20\]](#fn20)

Rule 902 reinforces the file-truth gap. It permits specified evidence, including certain certified electronic evidence, to be self-authenticated without extrinsic evidence of authenticity.[\[21\]](#fn21) A certification may establish origin, copying method, or process integrity. It may show that a file was accurately copied from a device or system. Standing alone, however, it does not prove that the recorded event occurred or that the depicted person, place, or condition is what the proponent claims.

The proposed amendment to Rule 901 reflects the same concern. The Advisory Committee on Evidence Rules' December 1, 2025 report describes proposed Rule 901(c), under which the opponent would first present evidence sufficient to support a finding that the item was fabricated, in whole or in part, by generative AI, enough to warrant inquiry by the court. The item would then be admissible only if the proponent showed that it was more likely than not authentic.[\[22\]](#fn22) That structure assigns each side a defined burden: the opponent must offer a concrete basis for doubt, and the proponent must then supply proof of authenticity.

Proposed Rule 707 addresses a related but distinct problem. The Committee considered a rule for machine-generated evidence offered without an expert witness when the output would be subject to Rule 702 if stated by a human expert. That proposal concerns the reliability of machine-generated output. Deepfake evidence often raises a different question because the item is offered as ordinary audiovisual evidence, not as expert analysis. In that setting, Rule 901 remains the first component. As of May 2026, those proposals remain pending; the Advisory Committee delayed action on both AI-evidence and deepfake-related amendments while it sought further expert input.[\[23\]](#fn23)

## IV. The Credibility Discount

Once synthetic media makes appearance a weaker proxy for authenticity, audiovisual evidence carries what this Article calls the credibility discount. The credibility discount is the reduced default confidence that decisionmakers give audiovisual evidence when appearance alone can no longer support the same inference. It describes a practical change in how courts, juries, companies, and agencies evaluate audiovisual proof. It does not decide admissibility.

The credibility discount turns on both fabrication capacity and decisionmaker awareness. Persuasive fabrication has become easier, and legal and institutional decisionmakers will increasingly know that it has become easier. When those conditions coincide, appearance loses part of its ordinary force. A person unfamiliar with convincing synthetic media may treat a video as nearly conclusive. A person who has encountered voice-cloning scams, AI image tools, or deepfake videos will approach the same exhibit with less default confidence.[\[24\]](#fn24)

The same conditions also produce the liar's dividend. Chesney and Citron identified that risk in 2019, explaining that deepfakes can depict people saying or doing things they never said or did, while machine-learning techniques make those depictions more realistic and harder to detect.[\[25\]](#fn25) They described harms ranging from exploitation and intimidation to personal sabotage, democratic injury, and national-security risk.[\[26\]](#fn26) The evidentiary consequence is narrower but important: as the public learns that audio and video can be faked, a person confronted with genuine audiovisual evidence may deny it by calling it fake.[\[27\]](#fn27)

That insight has a direct evidentiary consequence. Once synthetic media becomes familiar, a party confronted with genuine audiovisual evidence may try to weaken it by calling it AI. The challenge may fail, yet still affect settlement, admissibility, or the jury's assessment of weight. The credibility discount therefore cuts both ways: it reduces undue confidence in fabricated exhibits, while giving courts a reason to reject unsupported attacks on genuine ones.

Jury trials make that screening problem harder. Jurors bring ordinary experience into the jury box, and that experience will increasingly include synthetic media, voice-cloning scams, AI image tools, and deepfake videos. That familiarity may make jurors more careful. It may also make them more receptive to a bad-faith deepfake allegation. Rule 901 should screen those challenges without turning every recording, photograph, or video into an expensive satellite proceeding.[\[28\]](#fn28)

## V. Process Proof After a Specific Challenge

A process-proof standard should apply only after a concrete deepfake challenge. The inquiry should begin with the inference the proponent asks the audiovisual evidence to support. Evidence offered to prove identity, occurrence, assent, or conduct depends heavily on the item's connection to external fact. Evidence offered for a minor background point may require less foundation because the asserted inference carries less consequence.

The threshold showing should come from the opponent. Concrete grounds may include inconsistent metadata, missing source files, suspicious production history, visible signs of alteration, conflict with independent records, or evidence that a person had both motive and access to fabricate. Speculation should leave the ordinary burden unchanged. A party who invokes AI in the abstract has not made the showing required for a deeper authentication inquiry.[\[29\]](#fn29)

After the opponent makes that showing, the proponent should supply process proof matched to the claimed inference. The court may consider testimony from the person who captured the evidence, device records, platform records, timestamps, metadata, hash values, chain of custody, forensic review, or independent corroboration. The necessary foundation should scale with the evidence's role in the case and the specificity of the challenge.[\[30\]](#fn30)

The standard also preserves the difference between authenticity and reliability. Authenticity asks whether the item is what the proponent claims. Reliability asks whether the process that generated, preserved, or tested the evidence deserves confidence. A file may be authentic as the file produced in discovery yet still require additional foundation before it can support the asserted event. Courts should keep those questions separate.[\[31\]](#fn31)

## VI. The Cost of Overcorrection

A process-proof rule should guard against fabrication without making genuine audiovisual evidence too expensive to use. A criminal defendant may have a phone video with incomplete metadata. A small business may have a recording and no forensic budget. A victim may have a screenshot, a voicemail, or a damaged device. If courts demand expensive authentication too often, the rule will favor parties with money, experts, and control over the relevant systems.[\[32\]](#fn32)

The threshold showing is the rule's limiting principle. It prevents courts from requiring added process proof every time a party offers audiovisual evidence. The opponent need not prove fabrication, but the challenge must identify concrete grounds for suspecting AI generation or material alteration.

The amount of process proof should turn on the evidence's role in the case. A photograph offered to establish a background condition should require less foundation than a video offered to prove the central act in dispute. A recording that corroborates independent evidence should require less than a recording that supplies the only proof of identity. Courts should ask how much the item contributes to the disputed fact and how directly the opponent's challenge threatens that use.

In criminal cases, overcorrection can impair the defendant's ability to test the government's proof. A defendant challenging government audiovisual evidence needs access to the files, devices, metadata, and production history required to examine the exhibit. Courts should also avoid forcing the defense to reveal its theory before trial. Sequenced discovery, targeted expert disclosure, and pretrial admissibility hearings can allow meaningful testing while keeping the authentication dispute from becoming an early trial on the merits.[\[33\]](#fn33)

Civil cases raise a different form of overcorrection. A party may invoke a deepfake allegation to increase cost, delay proceedings, or pressure settlement. The concrete-showing requirement limits that tactic by requiring the challenge to target the exhibit, the inference the exhibit is offered to support, and the practical consequences of admitting or excluding it.[\[34\]](#fn34)

## VII. Boardrooms to Courtrooms

Before the credibility discount reaches court, it will change how institutions create, verify, and preserve audiovisual proof. Companies will require second-channel confirmation before major transfers. Boards will adopt procedures for verifying video instructions and remote approvals. Compliance departments will preserve source records with greater care. Law firms will ask who created a file, how it was preserved, and whether independent evidence confirms it before arguing what it shows.[\[35\]](#fn35)

Those institutional responses bring Rule 901's premise into ordinary practice: a party relying on audiovisual evidence must be able to connect the item to the claim made about it. When audio and video seemed more direct, that foundation was often easy to supply and less often contested. Generative AI makes the same foundation work harder to avoid.

Public expectations will change for the same reason institutional practices will change. People will know that audiovisual evidence can be manufactured. Citizens who encounter synthetic audiovisual evidence in ordinary life will bring that experience into investigations, negotiations, agency proceedings, and jury service. That experience may help them resist manipulation. It may also give a wrongdoer a ready way to deny genuine evidence. Courts can separate those situations by requiring concrete grounds for a deepfake challenge before placing any additional burden on the proponent.

Because detection can falter outside controlled settings, courts should resist treating any single method as dispositive. NIST's reported degradation in detection performance explains why detection cannot carry the full authentication burden.[\[36\]](#fn36) Provenance standards can help establish origin and handling[\[37\]](#fn37), while the truth of the depicted event may require other evidence. Human judgment remains necessary and fallible. A layered evidentiary approach is more realistic: source, custody, metadata, corroboration, forensic review, witness testimony, and Rule 403 scrutiny when the risk of misleading the jury is substantial.[\[38\]](#fn38)

## Conclusion

Deepfakes leave audiovisual evidence in place while lowering the confidence that appearance alone can command. Audio, video, and photographs will remain common in trials, investigations, compliance reviews, and board decisions. Their force will increasingly depend on process proof: source, custody, metadata, corroboration, and, when needed, forensic review.

Existing evidence doctrine already points to that result. Rule 901 asks whether the item is what the proponent claims it is. Rule 902 may establish authenticity for certain records and electronic evidence, but it does not resolve what the content means or whether the depicted event occurred. Rule 702 governs expert testimony when specialized knowledge is offered to explain, test, or evaluate the item. Deepfakes make the same doctrinal tools more claim-specific: courts should ask what inference the proponent seeks to draw and whether the foundation supports that inference.[\[39\]](#fn39)

The credibility discount gives Rule 901 a more precise task: separating warranted doubt from unsupported denial. A recording may remain probative while carrying less automatic trust. A video may still persuade, but a concrete deepfake challenge should require proof of source, custody, metadata, or corroboration matched to the claim made about the exhibit. That threshold matters in both directions. The same technology that makes false evidence more believable can also make genuine evidence easier to deny.

Seeing may persuade, but Rule 901 requires more than visual confidence. Audiovisual evidence should carry force when the proponent can show what the exhibit is, where it came from, how it was preserved, and why it supports the factual inference for which it is offered.

---

1. Nat'l Inst. of Standards & Tech., *GenAI: Deepfakes 2026*, AI Challenges, [https://ai-challenges.nist.gov/forensics](https://ai-challenges.nist.gov/forensics?ref=thecommonplace.press) (last visited May 18, 2026); Nuria Alina Chandra et al., *Deepfake-Eval-2024: A Multi-Modal In-the-Wild Benchmark of Deepfakes Circulated in 2024*, arXiv:2503.02857, at 1 (Mar. 4, 2025), [https://arxiv.org/abs/2503.02857](https://arxiv.org/abs/2503.02857?ref=thecommonplace.press). [↩︎](#fnref1)
2. Kimberly T. Mai, Sergi Bray, Toby Davies & Lewis D. Griffin, *Warning: Humans Cannot Reliably Detect Speech Deepfakes*, 18 PLOS ONE e0285333, at 1 (2023), [https://doi.org/10.1371/journal.pone.0285333](https://doi.org/10.1371/journal.pone.0285333?ref=thecommonplace.press). [↩︎](#fnref2)
3. Fed. R. Evid. 901(a); see also Fed. R. Evid. 901(b)(1), (4), (5), (9). [↩︎](#fnref3)
4. Fed. R. Evid. 403; see also *Old Chief v. United States*, 519 U.S. 172, 180–85 (1997). [↩︎](#fnref4)
5. Dan Milmo, *Company Worker in Hong Kong Pays Out £20m in Deepfake Video Call Scam*, Guardian (Feb. 5, 2024), [https://www.theguardian.com/world/2024/feb/05/hong-kong-company-deepfake-video-conference-call-scam](https://www.theguardian.com/world/2024/feb/05/hong-kong-company-deepfake-video-conference-call-scam?ref=thecommonplace.press); Dan Milmo, *UK Engineering Firm Arup Falls Victim to £20m Deepfake Scam*, Guardian (May 17, 2024), [https://www.theguardian.com/technology/article/2024/may/17/uk-engineering-arup-deepfake-scam-hong-kong-ai-video](https://www.theguardian.com/technology/article/2024/may/17/uk-engineering-arup-deepfake-scam-hong-kong-ai-video?ref=thecommonplace.press). [↩︎](#fnref5)
6. Robert Chesney & Danielle Keats Citron, *Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security*, 107 Calif. L. Rev. 1753, 1785–86 (2019). [↩︎](#fnref6)
7. See Fed. R. Evid. 901(a), (b)(1), (4), (5), (9); Fed. R. Evid. 902(13), (14); *United States v. Vayner*, 769 F.3d 125, 131–33 (2d Cir. 2014); *United States v. Browne*, 834 F.3d 403, 412–13 (3d Cir. 2016); *United States v. Barnes*, 803 F.3d 209, 217 (5th Cir. 2015); Advisory Comm. on Evidence Rules, *Report of the Advisory Committee on Evidence Rules* 5–7 (Dec. 1, 2025), in Comm. on Rules of Practice & Procedure, *Agenda Book* 282, 286–88 (Jan. 6, 2026), [https://www.uscourts.gov/sites/default/files/document/2025-12-01\_evidence\_rules\_committee\_report.pdf](https://www.uscourts.gov/sites/default/files/document/2025-12-01%5Fevidence%5Frules%5Fcommittee%5Freport.pdf?ref=thecommonplace.press). [↩︎](#fnref7)
8. See Jessica Silbey, *Judges as Film Critics: New Approaches to Filmic Evidence*, 37 U. Mich. J.L. Reform 493, 499–508 (2004); Caren Myers Morrison, *Body Camera Obscura: The Semiotics of Police Video*, 54 Am. Crim. L. Rev. 791, 797–807 (2017). [↩︎](#fnref8)
9. See Jennifer L. Mnookin, *The Image of Truth: Photographic Evidence and the Power of Analogy*, 10 Yale J.L. & Human. 1, 1–8 (1998); Jessica Silbey, *Judges as Film Critics: New Approaches to Filmic Evidence*, 37 U. Mich. J.L. Reform 493, 499–508 (2004); Caren Myers Morrison, *Body Camera Obscura: The Semiotics of Police Video*, 54 Am. Crim. L. Rev. 791, 797–807 (2017). [↩︎](#fnref9)
10. See Jennifer L. Mnookin, *The Image of Truth: Photographic Evidence and the Power of Analogy*, 10 Yale J.L. & Human. 1, 1–8 (1998); *Scott v. Harris*, 550 U.S. 372, 378–81 (2007). [↩︎](#fnref10)
11. See Rebecca A. Delfino, *Deepfakes on Trial: A Call To Expand the Trial Judge's Gatekeeping Role To Protect Legal Proceedings from Technological Fakery*, 74 Hastings L.J. 293, 300–12 (2023); John P. LaMonaca, *A Break from Reality: Modernizing Authentication Standards for Digital Video Evidence in the Era of Deepfakes*, 69 Am. U. L. Rev. 1945, 1952–67 (2020). [↩︎](#fnref11)
12. Nat'l Inst. of Standards & Tech., *GenAI: Deepfakes 2026*, AI Challenges, [https://ai-challenges.nist.gov/forensics](https://ai-challenges.nist.gov/forensics?ref=thecommonplace.press) (last visited May 18, 2026). [↩︎](#fnref12)
13. Nat'l Inst. of Standards & Tech., *GenAI: Deepfakes 2026*, AI Challenges, [https://ai-challenges.nist.gov/forensics](https://ai-challenges.nist.gov/forensics?ref=thecommonplace.press) (last visited May 18, 2026); Nuria Alina Chandra et al., *Deepfake-Eval-2024: A Multi-Modal In-the-Wild Benchmark of Deepfakes Circulated in 2024*, arXiv:2503.02857, at 1 (Mar. 4, 2025), [https://arxiv.org/abs/2503.02857](https://arxiv.org/abs/2503.02857?ref=thecommonplace.press). [↩︎](#fnref13)
14. Kimberly T. Mai, Sergi Bray, Toby Davies & Lewis D. Griffin, *Warning: Humans Cannot Reliably Detect Speech Deepfakes*, 18 PLOS ONE e0285333, at 1 (2023), [https://doi.org/10.1371/journal.pone.0285333](https://doi.org/10.1371/journal.pone.0285333?ref=thecommonplace.press). [↩︎](#fnref14)
15. Id. at 1\. [↩︎](#fnref15)
16. Stanford Inst. for Hum.-Centered Artificial Intelligence, *Artificial Intelligence Index Report 2025* (2025), [https://hai.stanford.edu/ai-index/2025-ai-index-report](https://hai.stanford.edu/ai-index/2025-ai-index-report?ref=thecommonplace.press). [↩︎](#fnref16)
17. FBI Internet Crime Complaint Ctr., Alert No. I-120324-PSA, *Criminals Use Generative Artificial Intelligence to Facilitate Financial Fraud* (Dec. 3, 2024), [https://www.ic3.gov/PSA/2024/PSA241203](https://www.ic3.gov/PSA/2024/PSA241203?ref=thecommonplace.press). [↩︎](#fnref17)
18. Dan Milmo, *Company Worker in Hong Kong Pays Out £20m in Deepfake Video Call Scam*, Guardian (Feb. 5, 2024), [https://www.theguardian.com/world/2024/feb/05/hong-kong-company-deepfake-video-conference-call-scam](https://www.theguardian.com/world/2024/feb/05/hong-kong-company-deepfake-video-conference-call-scam?ref=thecommonplace.press); Dan Milmo, *UK Engineering Firm Arup Falls Victim to £20m Deepfake Scam*, Guardian (May 17, 2024), [https://www.theguardian.com/technology/article/2024/may/17/uk-engineering-arup-deepfake-scam-hong-kong-ai-video](https://www.theguardian.com/technology/article/2024/may/17/uk-engineering-arup-deepfake-scam-hong-kong-ai-video?ref=thecommonplace.press). [↩︎](#fnref18)
19. Fed. R. Evid. 901(a); see also *Lorraine v. Markel Am. Ins. Co.*, 241 F.R.D. 534, 542–45 (D. Md. 2007); *United States v. Vayner*, 769 F.3d 125, 131–33 (2d Cir. 2014). [↩︎](#fnref19)
20. See *United States v. Vayner*, 769 F.3d 125, 131–33 (2d Cir. 2014); *United States v. Browne*, 834 F.3d 403, 412–13 (3d Cir. 2016); *United States v. Hassan*, 742 F.3d 104, 133–34 (4th Cir. 2014); *United States v. Barnes*, 803 F.3d 209, 217 (5th Cir. 2015); *Tienda v. State*, 358 S.W.3d 633, 638–42 (Tex. Crim. App. 2012); *Griffin v. State*, 19 A.3d 415, 421–24 (Md. 2011). [↩︎](#fnref20)
21. Fed. R. Evid. 902(13), (14); Fed. R. Evid. 902 advisory committee's note to 2017 amendment; see also *Lorraine v. Markel Am. Ins. Co.*, 241 F.R.D. 534, 542–45 (D. Md. 2007). [↩︎](#fnref21)
22. Advisory Comm. on Evidence Rules, *Report of the Advisory Committee on Evidence Rules* 5–7 (Dec. 1, 2025), in Comm. on Rules of Practice & Procedure, *Agenda Book* 282, 286–88 (Jan. 6, 2026), [https://www.uscourts.gov/sites/default/files/document/2025-12-01\_evidence\_rules\_committee\_report.pdf](https://www.uscourts.gov/sites/default/files/document/2025-12-01%5Fevidence%5Frules%5Fcommittee%5Freport.pdf?ref=thecommonplace.press); Nate Raymond, *US Judicial Panel Delays Action on AI-Generated Evidence, Deep Fakes*, Reuters (May 7, 2026), [https://www.reuters.com/legal/government/us-judicial-panel-delays-action-ai-generated-evidence-deep-fakes-2026-05-07/](https://www.reuters.com/legal/government/us-judicial-panel-delays-action-ai-generated-evidence-deep-fakes-2026-05-07/?ref=thecommonplace.press). [↩︎](#fnref22)
23. Advisory Comm. on Evidence Rules, *Report of the Advisory Committee on Evidence Rules* 2–4, 13–24 (Dec. 1, 2025), in Comm. on Rules of Practice & Procedure, *Agenda Book* 282, 283–85, 295–306 (Jan. 6, 2026), [https://www.uscourts.gov/sites/default/files/document/2025-12-01\_evidence\_rules\_committee\_report.pdf](https://www.uscourts.gov/sites/default/files/document/2025-12-01%5Fevidence%5Frules%5Fcommittee%5Freport.pdf?ref=thecommonplace.press); Fed. R. Evid. 702; Nate Raymond, *US Judicial Panel Delays Action on AI-Generated Evidence, Deep Fakes*, Reuters (May 7, 2026), [https://www.reuters.com/legal/government/us-judicial-panel-delays-action-ai-generated-evidence-deep-fakes-2026-05-07/](https://www.reuters.com/legal/government/us-judicial-panel-delays-action-ai-generated-evidence-deep-fakes-2026-05-07/?ref=thecommonplace.press). [↩︎](#fnref23)
24. See Robert Chesney & Danielle Keats Citron, *Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security*, 107 Calif. L. Rev. 1753, 1785–86 (2019); Rebecca A. Delfino, *Deepfakes on Trial: A Call To Expand the Trial Judge's Gatekeeping Role To Protect Legal Proceedings from Technological Fakery*, 74 Hastings L.J. 293, 312–26 (2023); John P. LaMonaca, *A Break from Reality: Modernizing Authentication Standards for Digital Video Evidence in the Era of Deepfakes*, 69 Am. U. L. Rev. 1945, 1967–81 (2020). [↩︎](#fnref24)
25. Robert Chesney & Danielle Keats Citron, *Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security*, 107 Calif. L. Rev. 1753, 1769–86 (2019). [↩︎](#fnref25)
26. Robert Chesney & Danielle Keats Citron, *Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security*, 107 Calif. L. Rev. 1753, 1769–86 (2019). [↩︎](#fnref26)
27. Robert Chesney & Danielle Keats Citron, *Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security*, 107 Calif. L. Rev. 1753, 1785–86 (2019). [↩︎](#fnref27)
28. See *United States v. Peterson*, 945 F.3d 144, 157 (4th Cir. 2019); *Lee v. City of Troy*, 339 F.R.D. 346, 367–68 (N.D.N.Y. 2021); Advisory Comm. on Evidence Rules, *Report of the Advisory Committee on Evidence Rules* 6 (Dec. 1, 2025), in Comm. on Rules of Practice & Procedure, *Agenda Book* 282, 287 (Jan. 6, 2026), [https://www.uscourts.gov/sites/default/files/document/2025-12-01\_evidence\_rules\_committee\_report.pdf](https://www.uscourts.gov/sites/default/files/document/2025-12-01%5Fevidence%5Frules%5Fcommittee%5Freport.pdf?ref=thecommonplace.press). [↩︎](#fnref28)
29. See Advisory Comm. on Evidence Rules, *Report of the Advisory Committee on Evidence Rules* 5–7 (Dec. 1, 2025), in Comm. on Rules of Practice & Procedure, *Agenda Book* 282, 286–88 (Jan. 6, 2026), [https://www.uscourts.gov/sites/default/files/document/2025-12-01\_evidence\_rules\_committee\_report.pdf](https://www.uscourts.gov/sites/default/files/document/2025-12-01%5Fevidence%5Frules%5Fcommittee%5Freport.pdf?ref=thecommonplace.press); *United States v. Peterson*, 945 F.3d 144, 157 (4th Cir. 2019); *Lee v. City of Troy*, 339 F.R.D. 346, 367–68 (N.D.N.Y. 2021). [↩︎](#fnref29)
30. See Fed. R. Evid. 901(b)(1), (4), (5), (9); *Lorraine v. Markel Am. Ins. Co.*, 241 F.R.D. 534, 542–45 (D. Md. 2007); *United States v. Vayner*, 769 F.3d 125, 131–33 (2d Cir. 2014); *United States v. Browne*, 834 F.3d 403, 412–13 (3d Cir. 2016); *United States v. Hassan*, 742 F.3d 104, 133–34 (4th Cir. 2014); *United States v. Barnes*, 803 F.3d 209, 217 (5th Cir. 2015). [↩︎](#fnref30)
31. See Fed. R. Evid. 901(a); Fed. R. Evid. 902 advisory committee's note to 2017 amendment; Fed. R. Evid. 702; Andrea Roth, *Machine Testimony*, 126 Yale L.J. 1972, 1980–95 (2017); Andrea Roth, *How Machines Reveal the Gaps in Evidence Law*, 76 Vand. L. Rev. 1631, 1640–59 (2023). [↩︎](#fnref31)
32. See Rebecca A. Delfino, *Deepfakes on Trial: A Call To Expand the Trial Judge's Gatekeeping Role To Protect Legal Proceedings from Technological Fakery*, 74 Hastings L.J. 293, 326–41 (2023); Andrea Roth, *Machine Testimony*, 126 Yale L.J. 1972, 1996–2020 (2017). [↩︎](#fnref32)
33. See Fed. R. Crim. P. 16(a)(1)(E), (F), (G), (b)(1)(C); Fed. R. Evid. 104(a); *Bourjaily v. United States*, 483 U.S. 171, 175–76 (1987); *Daubert v. Merrell Dow Pharms., Inc.*, 509 U.S. 579, 589–95 (1993); *Kumho Tire Co. v. Carmichael*, 526 U.S. 137, 147–52 (1999). [↩︎](#fnref33)
34. See Fed. R. Civ. P. 1; Fed. R. Evid. 403; *Old Chief v. United States*, 519 U.S. 172, 180–85 (1997); Advisory Comm. on Evidence Rules, *Report of the Advisory Committee on Evidence Rules* 5–7 (Dec. 1, 2025), in Comm. on Rules of Practice & Procedure, *Agenda Book* 282, 286–88 (Jan. 6, 2026), [https://www.uscourts.gov/sites/default/files/document/2025-12-01\_evidence\_rules\_committee\_report.pdf](https://www.uscourts.gov/sites/default/files/document/2025-12-01%5Fevidence%5Frules%5Fcommittee%5Freport.pdf?ref=thecommonplace.press). [↩︎](#fnref34)
35. See FBI Internet Crime Complaint Ctr., Alert No. I-120324-PSA, *Criminals Use Generative Artificial Intelligence to Facilitate Financial Fraud* (Dec. 3, 2024), [https://www.ic3.gov/PSA/2024/PSA241203](https://www.ic3.gov/PSA/2024/PSA241203?ref=thecommonplace.press); Dan Milmo, *UK Engineering Firm Arup Falls Victim to £20m Deepfake Scam*, Guardian (May 17, 2024), [https://www.theguardian.com/technology/article/2024/may/17/uk-engineering-arup-deepfake-scam-hong-kong-ai-video](https://www.theguardian.com/technology/article/2024/may/17/uk-engineering-arup-deepfake-scam-hong-kong-ai-video?ref=thecommonplace.press); Coal. for Content Provenance & Authenticity, *C2PA Specifications* 2.2 (2025), [https://spec.c2pa.org/specifications/specifications/2.2/index.html](https://spec.c2pa.org/specifications/specifications/2.2/index.html?ref=thecommonplace.press). [↩︎](#fnref35)
36. Nat'l Inst. of Standards & Tech., *GenAI: Deepfakes 2026*, AI Challenges, [https://ai-challenges.nist.gov/forensics](https://ai-challenges.nist.gov/forensics?ref=thecommonplace.press) (last visited May 18, 2026); Nuria Alina Chandra et al., *Deepfake-Eval-2024: A Multi-Modal In-the-Wild Benchmark of Deepfakes Circulated in 2024*, arXiv:2503.02857, at 1 (Mar. 4, 2025), [https://arxiv.org/abs/2503.02857](https://arxiv.org/abs/2503.02857?ref=thecommonplace.press). [↩︎](#fnref36)
37. Coal. for Content Provenance & Authenticity, *C2PA Specifications* 2.2 (2025), [https://spec.c2pa.org/specifications/specifications/2.2/index.html](https://spec.c2pa.org/specifications/specifications/2.2/index.html?ref=thecommonplace.press); Coal. for Content Provenance & Authenticity, *C2PA*, [https://c2pa.org](https://c2pa.org/?ref=thecommonplace.press) (last visited May 18, 2026). [↩︎](#fnref37)
38. See Nat'l Inst. of Standards & Tech., *GenAI: Deepfakes 2026*, AI Challenges, [https://ai-challenges.nist.gov/forensics](https://ai-challenges.nist.gov/forensics?ref=thecommonplace.press) (last visited May 18, 2026); Coal. for Content Provenance & Authenticity, *C2PA Specifications* 2.2 (2025), [https://spec.c2pa.org/specifications/specifications/2.2/index.html](https://spec.c2pa.org/specifications/specifications/2.2/index.html?ref=thecommonplace.press); Fed. R. Evid. 901(a), (b); Fed. R. Evid. 403\. [↩︎](#fnref38)
39. See Fed. R. Evid. 901(a); Fed. R. Evid. 902(13), (14); Fed. R. Evid. 702; *United States v. Vayner*, 769 F.3d 125, 131–33 (2d Cir. 2014); *United States v. Browne*, 834 F.3d 403, 412–13 (3d Cir. 2016). [↩︎](#fnref39)
### AI Data Centers Are Where the AI Boom Becomes Legal Work
URL: https://www.thecommonplace.press/ai-data-centers-are-where-the-ai-boom-becomes-legal-work/
Last updated: 2026-05-15T21:02:53.000Z
Artificial intelligence (AI) is often described as software, and the instinct is understandable. The visible product is a model, an interface, a search result, a generated image, or a line of code. Yet the legal story becomes more interesting once the analysis moves below the interface. AI depends on physical systems. Those systems need sites, electricity, water, cooling, fiber, financing, permits, tax treatment, and political permission before the digital product can operate at scale.

That is why data centers have captured my attention. They turn a technological shift into an infrastructure problem. The legal work extends beyond technology law because the asset must be acquired, financed, powered, built, permitted, defended, and operated amid changing public expectations.

The energy figures explain why this issue has moved beyond ordinary commercial development. The [Department of Energy (DOE)](https://www.energy.gov/articles/doe-releases-new-report-evaluating-increase-electricity-demand-data-centers?ref=thecommonplace.press) reported that United States data centers consumed about 176 terawatt-hours (TWh) of electricity in 2023, equal to about 4.4 percent of total United States electricity use, and projected that demand could rise to 325 to 580 TWh by 2028\. The [International Energy Agency (IEA)](https://www.iea.org/reports/energy-and-ai/energy-demand-from-ai?ref=thecommonplace.press) projects that global data-center electricity consumption could double to about 945 TWh by 2030\. The projected 2028 United States data-center load would equal roughly one-third to three-fifths of the IEA’s projected 2030 global data-center electricity figure. That comparison uses different years and different forecast models, so it should be read as a scale reference rather than a precise market-share estimate. Even with that caveat, the buildout is large enough to affect grid planning. In its May 2026 [Short-Term Energy Outlook](https://www.eia.gov/outlooks/steo/report/?ref=thecommonplace.press), the United States Energy Information Administration (EIA) forecast rising electricity demand in 2026 and 2027, led by the commercial sector, which includes data centers.

The legal consequence follows from the asset itself. A data center may look like a building, although legally it is closer to a bundle of linked obligations. It requires power contracts, grid access, land-use approvals, water planning, construction risk allocation, tax analysis, financing discipline, and exit optionality. If the facts turn badly, it can also become the center of litigation or political opposition. Few emerging areas make the connection between business judgment and legal structure as visible as this one.

A serious data-center project requires lawyers to move across practice areas while preserving the commercial goal. Site control comes first, although the site must also work for transmission, fiber, water, construction timing, zoning, utility coordination, and local acceptance. Power procurement must follow early because the project’s economics depend on reliable electricity at a workable price. The utility and grid operator then have to assess whether the load can be served while preserving reliability and allocating system costs fairly.

Other legal questions follow from those core constraints. Environmental counsel has to evaluate air permits, water supply, backup generation, wastewater, noise, and opposition risk. Construction counsel has to draft around delays, equipment procurement, liquidated damages, and utility dependence. Finance counsel has to understand the revenue model, tenant structure, power risk, and commercial operation date. The project works only if those pieces fit together.

That kind of work rewards a lawyer who can connect the parts. A technology-only view may miss the infrastructure. A real-estate-only view may miss the power risk. A finance-only view may miss the permitting constraint. The useful lawyer is the one who understands how each issue changes the risk profile of the whole asset.

Major firm practice descriptions point in the same direction. [Latham](https://www.lw.com/en/practices/data-centers-ai-cloud-infrastructure?ref=thecommonplace.press) describes its data-center and AI cloud-infrastructure practice as covering site selection for powered land, electricity service agreements, financing, development, permitting, contracting, leasing, operations, and exit strategy. [Sidley](https://www.sidley.com/en/services/data-centers?ref=thecommonplace.press) describes the field through mergers and acquisitions (M&A), joint ventures, real estate, zoning, leasing, environmental permitting, sustainability, water, waste, and noise compliance. The market is already treating data centers as a multidisciplinary legal category rather than a narrow technology issue.

Texas gives the subject a sharper edge. The state has the energy, land, business climate, and political appetite to attract massive infrastructure projects. At the same time, large-load growth creates hard questions about reliability, cost allocation, ratepayer exposure, and speculative projects entering the interconnection queue before their economics are settled. At that point, a private development begins to implicate public governance.

The [Public Utility Commission of Texas (PUC)](https://www.puc.texas.gov/agency/rulesnlaws/subrules/electric/25.370/Default.aspx?ref=thecommonplace.press) adopted Electric Reliability Council of Texas (ERCOT) Large Load Forecasting Criteria, 16 Texas Administrative Code (TAC) § 25.370, effective March 1, 2026\. Texas regulators have also proposed large-load interconnection standards, including standards for projects seeking new interconnections of 75 megawatts or more, to improve planning discipline and reduce stranded-infrastructure risk. Those rules are technical, yet the underlying policy question is inescapable. Which parties should bear the risk when private demand requires public-system upgrades?

The tax side raises a related question about public return. Texas provides a [sales-and-use-tax exemption](https://comptroller.texas.gov/taxes/data-centers/?ref=thecommonplace.press) for qualifying data centers and qualifying large data-center projects on certain property used in operation. For qualifying data centers, the exemption applies to Texas state sales and use taxes. For qualifying large data-center projects, it applies to Texas state and local sales and use taxes. An incentive can attract capital and anchor future growth. That case becomes harder to make once the market is large enough to strain infrastructure plans, local budgets, and public tolerance.

Water creates a separate legal risk because scarcity is easier for residents and local officials to grasp than the mechanics of the grid. Interconnection studies can remain technical and remote, while water use appears in permits, utility plans, public meetings, and local headlines. In a dry region, a cooling design can shape the project’s path through permitting, local government review, public opposition, and litigation. Recent reporting on [Texas data-center water demand](https://www.houstonchronicle.com/news/houston-texas/trending/article/data-centers-texas-22251863.php?ref=thecommonplace.press) shows why this risk is drawing attention in a state already managing drought, growth, and infrastructure strain.

Houston is a natural place to study this field because its lawyers already work at the intersection of energy, infrastructure, capital projects, sophisticated counterparties, regulatory risk, and political reality. The city’s legal market is built for projects where commercial ambition has to work within physical constraints. AI data centers fit that pattern because they bring new client demand to legal work that still depends on familiar instincts: read the contracts, understand the asset, find the bottleneck, allocate the risk, and keep the project moving.

I am still early in my studies of the field, which is part of its appeal. The rules, market structures, incentive debates, and local opposition are developing while the market is being built. That is the best time to learn a subject, before its questions harden into conventional answers.

The public debate over AI will keep focusing on bias, copyright, privacy, labor, and safety, and those subjects belong in the debate. Data centers add a more physical legal problem. They push the AI boom through property law, utility regulation, public finance, permitting, construction contracts, and litigation. That is why the subject interests me. It shows where a new technology becomes a project that lawyers must structure, finance, defend, and govern.
### Agency Weakness, Presidential Strength
URL: https://www.thecommonplace.press/agency-weakness-presidential-strength/
Last updated: 2026-05-13T22:05:00.000Z
**April 30, 2025**

Recent Supreme Court decisions have narrowed agency authority, but they have also raised a second question: where does that authority go next?

Over the last year, the Supreme Court has cut back several forms of agency authority, including interpretive deference, in-house adjudication, limitations defenses, and open-ended permit conditions. In *Loper Bright*, the Court held that the Administrative Procedure Act requires courts to exercise independent judgment when deciding whether an agency has acted within its statutory authority, and that courts may not defer to an agency’s interpretation of law simply because a statute is ambiguous.[1](https://www.law.cornell.edu/supremecourt/text/22-451?ref=thecommonplace.press) In *Jarkesy*, the Court held that the SEC must provide a jury trial when it seeks civil penalties for securities fraud.[2](https://supreme.justia.com/cases/federal/us/603/22-859/?ref=thecommonplace.press) In *Corner Post*, the Court held that an APA claim accrues when the plaintiff is injured by final agency action, which makes older rules newly vulnerable to later-injured plaintiffs.[3](https://www.law.cornell.edu/supremecourt/text/22-1008?ref=thecommonplace.press) In *San Francisco v. EPA*, decided on March 4, 2025, the Court held that the Clean Water Act does not authorize EPA to include “end-result” provisions in NPDES permits.[4](https://supreme.justia.com/cases/federal/us/604/23-753/?ref=thecommonplace.press)

Those cases are often described as a loss for the administrative state, and that description is accurate as far as it goes. They reduce agencies’ ability to act as independent legal interpreters, to seek certain civil penalties through in-house adjudication, to rely on the age of a rule as a practical shield against later challenge, and to use open-ended permit terms as a substitute for concrete regulatory commands. The harder question is where that displaced authority goes.

A Reuters Legal News attorney-analysis piece by Skadden lawyers Shay Dvoretzky, Parker Rider-Longmaid, and Emily Kennedy put the question directly on April 24, 2025: “Will agencies’ weaknesses become a source of presidential strength?”[5](https://www.reuters.com/legal/legalindustry/will-agencies-weaknesses-become-source-presidential-strength-2025-04-24/?ref=thecommonplace.press) Their answer was careful. In some settings, power shifts to courts; in others, it returns to Congress; in still others, limits on agency authority may give the President more practical control over agencies through appointments, removals, spending decisions, White House review, and enforcement priorities.[5](https://www.skadden.com/insights/publications/2025/04/will-agencies-weaknesses-become-a-source-of-presidential-strength?ref=thecommonplace.press)

The Trump Administration has already begun testing that theory. On February 18, 2025, Executive Order 14215 declared a policy of presidential supervision and control over the executive branch, including independent regulatory agencies. The order requires that proposed and final significant regulatory actions from independent regulatory agencies undergo OIRA review before publication in the *Federal Register*, and it states that the President’s and the Attorney General’s legal interpretations govern executive-branch employees in performing their official duties.[6](https://www.federalregister.gov/d/2025-03063?ref=thecommonplace.press)

The next day, Executive Order 14219 directed agencies to review regulations for consistency with law and administration policy. The order told agencies to identify several classes of regulations, including unconstitutional regulations, regulations based on unlawful delegations, regulations based on readings other than the best reading of the statute, regulations involving major social, political, or economic questions without clear statutory authorization, regulations imposing significant costs that are not outweighed by public benefits, regulations harming the national interest by significantly and unjustifiably impeding listed policy objectives, and regulations imposing undue burdens on small businesses while impeding private enterprise and entrepreneurship.

It also directed agencies, subject to legal obligations, public safety, and the national interest, to generally deprioritize enforcement of regulations based on something other than the best reading of a statute or beyond constitutional authority.[7](https://www.whitehouse.gov/presidential-actions/2025/02/ensuring-lawful-governance-and-implementing-the-presidents-department-of-government-efficiency-regulatory-initiative?ref=thecommonplace.press) 

On April 9, 2025, a presidential memorandum directed agencies to repeal regulations that clearly exceed agency statutory authority or are otherwise unlawful. The memorandum instructed agencies to prioritize review under ten Supreme Court decisions, including *Loper Bright*, *West Virginia v. EPA*, *SEC v. Jarkesy*, *Michigan v. EPA*, *Sackett v. EPA*, and *Ohio v. EPA*. It also directed agencies to finalize repeals without notice and comment where the APA’s good-cause exception applies.[8](https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations?ref=thecommonplace.press)

For regulated companies, this creates a different compliance problem. Businesses still have to watch statutes, regulations, guidance, enforcement actions, and litigation, but they now also have to watch presidential control with the same discipline. A new administration can change an agency’s leadership, legal theory, enforcement posture, budget execution, and regulatory agenda far faster than Congress can rewrite a statute.

The same shift also affects competition. When rules are unsettled, the best-positioned incumbents usually move first because they already have the lawyers, lobbyists, compliance teams, and agency relationships needed to challenge unfavorable rules, defend favorable ones, and shape the next regulatory regime. Smaller competitors may benefit from a less aggressive administrative state, although they also face greater uncertainty and have fewer tools to manage it.

Legal uncertainty usually favors the people who can move before everyone else understands the new rules, and history gives that point some shape. In the nineteenth century, fights over annexation, public land, railroads, mineral rights, tariffs, and corporate charters often rewarded those who already had capital, counsel, and political access. Administrative law is a different field, but the same timing advantage can arise when regulatory authority is being reassigned, because incumbents who understand the shift first can help define the next regime before smaller competitors know which agency, court, or political actor they need to answer to.

The risk, then, is that courts may reduce agency discretion while presidents gain faster control over the machinery of administration. In that world, regulatory power becomes more electoral and less technocratic. That may improve democratic accountability in some areas, but it also means policy can swing faster, companies will plan around that speed, and lawyers will be paid to anticipate it.

The attorneys best positioned for the next decade will read doctrine, agency structure, presidential control, litigation risk, and business incentives together. Administrative law now sits close to the center of American economic power.

The better question, for lawyers and clients, is where agency power goes next and who will be ready when it moves.