Factual Revisionism: Precedent Subversion and the “Kavanaugh Stop”

In his Essay, Duncan Hosie identifies and theorizes “factual revisionism,” a method through which an appellate judge mischaracterizes a lower court’s factfinding, which manipulates how precedent is applied, while maintaining the appearance of continuity. Hosie argues Justice Kavanaugh’s concurrence in Noem v. Vasquez Perdomo altered Fourth Amendment jurisprudence by inaccurately characterizing the record and controlling precedent to permit detentive stops based solely on ethnicity and demographics, illustrating the significant consequences of these so-called “Kavanaugh stops” for federal immigration enforcement and of factual revisionism for the rule of law.