iiinova — where your digital self keeps evolving

Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

I'm still collecting data + revising, so additional comments are welcome. Thanks to my incredible team of RAs, who helped me review and hand-code everything (I did this without AI). 9/10

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

These differences persist at the district court level as well, often--but not always--echoing jurisdictional splits in the courts of appeals. But they do not clearly fall along urban / rural, big district / small district dividing lines. 8/10

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

There are also big jx differences in the success of Bivens. The 4th Cir. allowed 30% of Bivens claims to proceed under the analysis; the 7th Circ. allowed 20%; and the 1st, 2nd, 6th, 8th, 10th, and D.C. circuits allowed 0%. Bivens is dead some places -- and alive and maybe even well in others. 7/10

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

If Egbert sets out a new test, then the 4th Cir. (and the 1st, 2nd, 3rd, 5th, and 7th circuits) are wrong to rely on Ziglar. If Egbert doesn't set out a new test, then circuits like the 8th Circuit (and the 10th and 11th circuits), which treats it as if it does, are wrong. 6/10

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

Fourth, there are big jx-by-jx differences. The 8th Circ., for example, appears to treat Egbert (not Ziglar) as controlling: it relied on Egbert in 100% of its Bivens decisions. The 4th Cir., on the other hand, relied on Ziglar in 100% of its Bivens decisions. 5/10

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

Third, most of these were in the deliberate medical indifference context of Carlson (76.0%), not the 4th Amendment context of Bivens (14.7%), sex discrim context of Davis (2.3%), or some other context (7.0%). Most "other context" claims were under Farmer--a contested fourth Bivens context. 4/10

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

Second, courts (85.3%) are still largely using the two-step Bivens test set forth in Ziglar (which incorporates stare decisis and separation of powers considerations), and not the unified test suggested by Egbert (which prioritizes separation of powers). 3/10

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

First, courts are allowing Bivens cases to proceed at low if meaningful rates. Nationally, 9.8% of courts deciding cases on Bivens grounds are ruling in the favor of plaintiffs. That's not a ton, but it is roughly comparable with measured success rates in the civil rights context. 2/10

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 24/08/2026

I just posted @ssrn.bsky.social: Is Bivens Dead?, 61 Ga. L. Rev. __ (forthcoming 2027), papers.ssrn.com/sol3/papers..... I look at every decision nationally that cites Bivens between June 2022 and June 2025 (4,808 in total) to see how courts are deciding Bivens actions after Egbert v. Boule. 1/10

papers.ssrn.com

Is Bivens Dead?

For much of its fifty-year existence, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics has served as a tenuous counterpart to Section 1983, pro

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 05/12/2025

There are too many people to thank, most not on this site. But to those who are (I think just @abonisaenz.bsky.social & @billwatson-law.bsky.social ), thank you! Also thanks to @jerryedwards.bsky.social, @patsobkowski.com, & @yeargain.bsky.social for encouraging me to get this up on SSRN + here. 7/7

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 05/12/2025

This has been the best sort of gap-filling project. I've touched on the idea of a fundamental right in my previous travel writing (as have a few others, such as @anthonymkreis.bsky.social in his Harv. L. Rev. Blog piece). But I needed a citation. It turned out more interesting than I'd hoped. 6/7

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 05/12/2025

Moreover, the right to free movement has been consistently recognized by the Supreme Court. Although the Court has called it by different names and located it in different parts of the Constitution (& sometimes no specific part), it has been near-unanimous in affirming this right to travel. 5/7

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 05/12/2025

This idea that people have a right to move freely both within and across borders has persisted, serving as an important touchstone of both policy and popular culture. Put simply, the right to free movement is robustly represented in history and tradition--however you spin it. 4/7

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 05/12/2025

Travel rights were also an important part of the tensions leading to the Civil War, which is reflected in the Reconstruction Amendments and associated legislation. And travel rights were protected in every state constitution (37/37) at the time of the ratification of the 14th Amendment. 3/7

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 05/12/2025

This broad-reaching travel right is recognized in the Magna Carta, in Blackstone's Commentaries, and throughout colonial-era America. It was a key motivator in the Revolutionary War and it's protected in various ways by all but two (& arguably all) of the state constitutions in force as of 1791. 2/7

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 05/12/2025

New to @ssrn.bsky.social, I just posted the Forgotten Fundamental Right to Free Movement, 119 Nw. U. L. Rev. 811 (2025). In this, I argue that free movement -- intrastate, interstate, and international -- is a fundamental constitutional right. 1/7 papers.ssrn.com/sol3/papers....

papers.ssrn.com

The Forgotten Fundamental Right to Free Movement

There is a powerful fundamental right hiding in plain sight: the fundamental right to free movement. This right goes beyond the consistently acknowledged—though

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 25/09/2025

*In defense of Luddites...* was a good one.

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 30/04/2025

In rural areas, there are few choices because there aren't many kids. My hometown district was consolidating while I was a student. After college, I taught on the Pine Ridge Reservation and there was one HS in my community. Adding an 'option' in either place would have jeopardized what was there.

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 30/04/2025

I graduated from Allegany, a public HS in rural Appalachia. Discussions of school choice (see Drummond) don't give enough credence to the fact that most parents have little effective choice. The practical result of publicly funding religious schools will be to force that education on many students.

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 21/04/2025

Travel rights (which are reasonably robust, if regularly overlooked) can provide a bulwark against these sorts of anti-travel provisions. I wrote about this in Travel Rights in a Culture War, 101 Tex. L. Rev. O. 21 (2022), texaslawreview.org/travel-right.... But litigants need to assert them!

texaslawreview.org

Travel Rights in a Culture War | Texas Law Review

[T]he majority’s ruling today invites a host of questions about interstate conflicts[, including:] . . . Can a State bar women from traveling to another State to obtain an abortion? . . . The Constitu...

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 01/04/2025

I think this is a (grim) illustration of what Alex Yelderman @alexyelderman.bsky.social writes about in Danger as Deterrent, 65 B.C. L. Rev. 113 (2024). bclawreview.bc.edu/articles/311....

bclawreview.bc.edu

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 28/03/2025

Before now, law students largely struggled to differentiate one big law firm from another. One effect of Trump's individualized targeting of these places, and the various reactions that it's provoked, is to reveal meaningful differences that might not have been obvious to students before.

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 19/03/2025

The total amount of funding for the police isn't all that matters; the source of funding does as well. Cuts in federal funding may well be offset by increases in local funding (in many/most jx). But -- at least from an accountability standpoint -- that could still be a meaningful positive change.

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 19/03/2025

Here's a possibly good $$ cut, which could help with police accountability. One effect of external funding for the police is to smooth the local costs of police misconduct liability, diminishing local pressures to reform. I write about this in Funding the Police, 84 Ohio State L. J. 717 (2023).

moritzlaw.osu.edu

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 26/02/2025

It's not every day that you get to stop an execution. Congratulations to my co-counsel (in a different case) and law school classmate, Amy Knight, on the Glossip decision! nondoc.com/2025/02/25/s...

nondoc.com

SCOTUS throws out Glossip conviction, prosecutors to decide on new trial

The U.S. Supreme Court vacated the conviction of Oklahoma death row inmate Richard Glossip on Tuesday, Feb. 25, 2025.

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 03/01/2025

Fascinating take on Mexico politics/policy and AMLO specifically.

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 05/12/2024

The colors in the 1896 Appalachia map read to me--as someone who grew up there--as the difference between Appalachia as a cultural region (dark green) and as a geographic region (light green), and they mostly track my current impressions. But I'm not seeing a key; what do they actually represent?

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 29/11/2024

I guess it depends on what you think most upset people about the Pinto case. Was it the # of deaths, or Ford's apparent willingness to tolerate some horrible customer deaths if it could save ~$10/car?

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 29/11/2024

"The punitive damage award [is] more difficult to justify. ...It rested on the premise that Ford had behaved reprehensibly when it balanced safety against cost.... Such trade-off[s] seem[] not only to be anticipated but endorsed by the prevailing risk-benefit standard for design liability." --GS

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 29/11/2024

"[A]s for safety, the Pinto was a car that was neither admirable nor despicable. [I]ts design features apparently gave it a worse-than-average record [for rear-end fire]. Hence, there was nothing clearly wrong in subjecting Ford to liability for harms resulting from that latter category of fires."

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 29/11/2024

Not to defend Tesla's safety record, but I'm not sure that we should benchmark things to the Pinto case. Check out Gary T. Schwartz, The Myth of the Ford Pinto, 43 Rutgers L. Rev. 1013 (1991).

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 14/11/2024

Federal Indian Law follow-up: would Noem's move to the federal executive allow her to visit these reservations? I can't imagine she'd try, but that'd put the tribes' sovereign power to exclude in direct tension with the federal government's authority over tribal nations.

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 14/11/2024

It's an area the size of Connecticut!

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Noah Smith-Drelich @nsmithdrelich.bsky.social · 14/11/2024

Interesting twist on the Kristi Noem nomination: she's been barred from stepping foot on each of the reservations located within South Dakota (all 9). DHS is relatively new, but has there ever been a Secretary of Homeland Security who can't legally visit all of the parts of the 'homeland'?

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