Article

The Promise and Perils of Private Enforcement

A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent with their gender identities, and against schools that permit transgender students to play on sports teams consistent with their gender identities. Similar laws permit people to bring enforcement actions against schools that teach critical race theory and against those who sell restricted firearms. State legislatures are considering a host of laws modeled on these examples, along with other novel regimes. These are new adaptations of private enforcement regimes—laws that task members of the public with enforcing regulatory statutes in court. Private enforcement has a somewhat long lineage in U.S. law, dating back to at least the nineteenth century. Since then, in contexts as diverse as employment discrimination, housing discrimination, antitrust, securities, and other contexts, the U.S. legal system has endowed members of the public with the power to enforce regulatory law in court. While these traditional forms of private enforcement have been relatively stable and survived legal challenges, the new adaptations cropping up have prompted challenges in court and intense debate. Among other things, scholars argue that they amount to a form of legal vigilantism, suppress existing legal rights, and pose due process concerns in their design. Yet, to fully distinguish between private enforcement’s traditional forms and these new variations, we need a richer account of the meaning and role of private enforcement in democracy.

This Article provides such an account, analyzing and distinguishing private enforcement regimes through the lens of a participatory democracy theory of regulatory governance. Drawing on debates and thinking at the dawn of the modern regulatory state, this Article argues that private enforcement is democratically valuable when it (1) evens out structural power disparities that can undermine democracy, (2) enables members of the public to bring the expertise of experience to dynamic regulatory environments, and (3) facilitates democratic deliberation. This Article argues that traditional private enforcement suits generally contribute to democratic governance under each rationale. In contrast, the new private enforcement suits perform less well, and indeed, often undermine the rationales for popular participation in regulatory governance. This Article thus articulates a richer theory of popular participation in regulatory governance that shows the promise of private enforcement generally and the perils of recent adaptations.

Introduction

A legal maelstrom is developing over private enforcement litigation. Citizens have long been endowed with the authority to enforce regulatory laws by filing civil suits in court in contexts as diverse as employment discrimination, housing discrimination, antitrust, civil rights, labor and employment, healthcare, and others.1 1.See infra Section I.A. I occasionally use the term “citizen” to refer to private enforcers, in part because private enforcement suits are at times styled as “citizen suits,” particularly in the environmental context. See, e.g., Katherine A. Rouse, Note, Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions, 93 N.Y.U. L. Rev. 1271, 1275–84 (2018) (exploring citizen suit regimes). However, I am referring to citizenship as a practice of participation in political-legal enforcement, and I do not mean to draw the formal distinction delineating citizens and non-citizens under various U.S. legal regimes, particularly because some private enforcers need not be U.S. citizens under the law and, indeed, some private enforcement regimes protect non-citizens. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, § 703, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e–2000e-2) (banning employment discrimination on account of national origin).Show More While private enforcement has a long and complicated lineage, paradigmatic private enforcement suits involve members of the public enforcing regulatory statutes governing the marketplace and codifying civil rights commitments.2 2.See infra Section I.A; see also David L. Noll & Luke Norris, Federal Rules of Private Enforcement, 108 Cornell L. Rev. (forthcoming 2023) (manuscript at 2–3) (on file with the author) (noting private enforcement is a product of legislatures “creating private rights of action, modifying court procedures, and subsidizing litigation through attorney’s fee-shifts, damages enhancements, and other measures that make it attractive for private parties and the attorneys who represent them to shoulder the work of enforcing the law”).Show More But across the legal landscape, private enforcement suits are being adapted creatively today—provoking serious legal challenges and prompting heated debate.

Texas’s S.B. 8 is at the center of the maelstrom. The law, which permits people to bring actions against anyone who aids or abets the performance or inducement of an abortion after approximately six weeks of pregnancy, relies exclusively on private enforcement.3 3.S.B. 8, § 3, 87th Leg., Reg. Sess. (Tex. 2021) (codified at Tex. Health & Safety Code Ann. § 171.208 (West 2022)) (permitting “any person” to bring an action against anyone who “aids or abets the performance or inducement of an abortion”).Show More S.B. 8 is part of a new wave of private causes of action, including those that task members of the public with enforcing laws banning transgender people from using bathrooms or playing on sports teams that correspond with their gender identities.4 4.See, e.g., H.B. 1233, § 1(5)(a), 112th Gen. Assemb., Reg. Sess. (Tenn. 2021) (codified at Tenn. Code Ann. § 49-2-805 (2021)) (permitting any student, teacher, or employer to sue if they have to share a restroom with a transgender person); S.B. 1028, 2021 Leg., Reg. Sess. § 12 (Fla. 2021) (codified at Fla. Stat. § 1006.205 (2021)) (permitting students to sue if they are “deprived of an academic opportunity” by being required to play sports with a transgender person).Show More New laws passed and others proposed in several states give people the ability to sue school districts that teach critical race theory (“CRT”) or employers that train based on it, and one law gives people the authority to sue purveyors of restricted firearms.5 5.See, e.g., S.B. 1327, 2022 Leg., Reg. Sess. (Cal. 2022) (codified at Cal. Bus. & Prof. Code § 22949.60 (Deering 2022) and Cal. Civ. Proc. Code § 1021.11 (Deering 2022)) (authorizing private enforcement suits against anyone who manufactures, distributes, or sells restricted firearms); Teaganne Finn, DeSantis Pushes Bill Targeting Critical Race Theory in Schools, NBC News (Dec. 15, 2021), https://www.nbcnews.com/politics/polit‌ics-news/desantis-pushes-bill-targeting-critical-race-theory-schools-n1286049 [https://perma‌.cc/2XDZ-UHP3] (“Republican Florida Gov. Ron DeSantis is pushing a new bill that would allow parents to sue school districts if their children are taught critical race theory in classrooms, which mirrors how Texas’ abortion ban is enforced.”); Laura Meckler, Teachers Union Sues New Hampshire Over Law Barring Certain Race Lessons, Wash. Post (Dec. 13, 2021), https://www.washingtonpost.com/education/2021/12/13/new-hampshire-critical-race-theory-lawsuit/ [https://perma.cc/N884-TTHK] (describing law passed in New Hampshire regarding the teaching of topics around race and its private right of action). For an overview of all CRT bills proposed and passed, see Peter Green, Teacher Anti-CRT Bills Coast to Coast: A State by State Guide, Forbes (Feb. 16, 2022), https://www.forbes.com/sites/pete‌rgreene/2022/02/16/teacher-anti-crt-bills-coast-to-coast-a-state-by-state-guide/?sh=306100ec‌4ff6 [https://perma.cc/E5CZ-Y6BJ].Show More

Questions about the legality of these private enforcement schemes are already percolating through the courts. The U.S. Supreme Court recently weighed in on one aspect of S.B. 8.6 6.See Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 529–30 (2021) (deciding whether pre-enforcement review of the statute’s constitutionality is permissible).Show More The bill lacks public enforcement mechanisms, in large part to stop pre-enforcement suits against government officials,7 7.See infra notes 50, 67–69 and accompanying text.Show More but a divided Supreme Court allowed pre-enforcement suits to be brought against state medical licensing officials who are tasked with enforcing the law.8 8.See Whole Woman’s Health, 142 S. Ct. at 535–37.Show More The law is also a troubling precedent—in large part because its six-week ban on abortions ran afoul of controlling Supreme Court precedent when it was passed—although that precedent has since been overturned.9 9.See infra note 70 and accompanying text; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022).Show More

The controversy over these laws, however, extends further. Commentators argue that many of these recent adaptations, by having members of the public enforce laws against one another upon merely witnessing their conduct, amount to a form of legal vigilantism, suppress existing legal rights, entrench marginalization, and pose due process concerns in their design.10 10.See Jon D. Michaels & David L. Noll, Vigilante Federalism, Cornell L. Rev. (forthcoming 2023) (manuscript at 3–4, 18–22), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=​3915944 [https://perma.cc/J8ZY-V26M] [hereinafter Michaels & Noll, Vigilante Federalism] (advancing all of these arguments); see also Aziz Z. Huq, The Private Suppression of Constitutional Rights, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 51–54), https://ssrn.com/abstract=4072800 [https://perma.cc/CD2F-HQW8] (connecting S.B. 8 to the Fugitive Slave Act and a larger history of private suppression of constitutional rights that includes labor suppression and racially restrictive covenants); Jon Michaels & David Noll, We Are Becoming a Nation of Vigilantes, N.Y. Times (Sept. 4, 2021), https://www.nytimes.c​om/2021/09/04/opinion/texas-abortion-law.html [https://perma.cc/6UPG-PLB9] (“In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers around the country have . . . inverted private enforcement laws . . . to enable individuals to suppress the rights of their neighbors, classmates and colleagues.”); Laurence H. Tribe & Stephen I. Vladeck, Texas Tries to Upend the Legal System With Its Abortion Law, N.Y. Times, (July 19, 2021), https://www.nytimes.com/2021/07/19/opinion/texas-abortion-law-reward.html/ [https://perma.cc/G9EF-CZN4] (arguing that S.B. 8 is designed to evade federal review). A federal district court judge overseeing litigation surrounding S.B. 8 found that it violates constitutional due process. See Whole Woman’s Health, 141 S. Ct. at 2494.Show More They also argue that these laws are different in kind from most traditional private enforcement suits, which are characterized by enforcers who suffer direct harm—say, consumer fraud or unlawful termination—enforcing regulatory laws governing those harms.11 11.See Michaels & Noll, Vigilante Federalism, supra note 10, at 28–31.Show More

All of these criticisms have merit. But the debate over which kinds of private enforcement are justified and valuable suffers from a deeper problem: our theory of the role of private enforcement in democracy is underdeveloped.

This Article claims that to better analyze private enforcement’s various forms, we need to first understand the proper role of citizen enforcement in democracy. Fundamentally, the debate over private enforcement is one over whether and when members of the public should participate in enforcing regulatory laws. For some thinkers, tasking members of the public, their lawyers, and courts with regulatory enforcement authority is problematic.12 12.See infra Section II.A.Show More They argue that public enforcers and bureaucrats are more accountable regulatory agents.13 13.See infra Section II.A.Show More Some even argue that private enforcement suits pose constitutional concerns or fit uncomfortably under Article II of the Constitution, which vests law-enforcement power in the executive branch.14 14.See, e.g., Cass R. Sunstein, Article II Revisionism, 92 Mich. L. Rev. 131, 131 (1993) (overviewing and critiquing the argument that “certain grants of standing—to citizens, taxpayers, or others without an individuated injury—would compromise the vesting of executive power in the President and the grant of power to the President, rather than to courts or to citizens, to ‘take Care that the Laws be faithfully executed’”).Show More For others, private enforcement is justified largely for its structural, gap-filling role in regulatory enforcement: private enforcers and their lawyers bring cases that public enforcers might not have the information, resources, or political will to bring.15 15.See infra Section II.A.Show More On this view, private enforcement is valuable in a complementary sense. But the democratic theory that maintains that public enforcers are best vested with authority to implement the law survives largely unscathed.

Lost from view in this dialogue is a deeper theoretical account of popular participation in regulatory governance that both can generally justify private enforcement as a democratic practice and enable us to better sort through its variations. Scholars have noted in passing that private enforcement facilitates popular participation in self-government, but have not developed the rationales explaining why this is so.16 16.See Stephen B. Burbank, Sean Farhang & Herbert Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 666 (2013) (arguing that “private enforcement regimes contribute to participatory and democratic self-government”).Show More But there are rich resources in U.S. legal and intellectual history for developing a better account of popular participation in regulatory governance that can reveal both the promise and the limits of private enforcement.

At the turn of the twentieth century, as questions roiled over whether members of the public should participate in regulatory governance or whether the domain should be left to public officials and experts alone, thinkers developed a participatory democracy account of regulatory governance. At the time, they elaborated three core justifications for why and when we might center members of the public in regulatory enforcement. They asserted that popular participation in regulatory enforcement is democratically valuable because it can (1) even out structural power imbalances that threaten to undermine democracy, (2) enable members of the public to bring the expertise of their direct, affected experience to dynamic regulatory contexts, and (3) help to facilitate democratic deliberation over regulatory norms. These justifications remain relevant today and aid in navigating the evolving terrain of private enforcement regimes.

Traditional private enforcement suits exhibit democratic promise under each justification. First, they often involve dispersed members of the public—at times those who have faced historical and enduring forms of marginalization—bringing suits against often powerful firms or government actors. In this way, citizens as workers, consumers, patients, and in other roles can exercise countervailing power by bringing suits in court. Second, in these suits, private enforcers tend to bring their direct experiences and personally felt harms to courts, leveraging the expertise of experience. And, they do so in contexts where the changing behavior of regulatory subjects raises complicated interpretive questions. In these contexts, members of the public directly experience evolving forms of economic and social behavior and are well-positioned to measure them against regulatory norms and to engage with state institutions to commence processes of regulatory interpretation. And finally, by doing so, private enforcers’ suits can deepen the well of deliberation between members of the public, courts, agencies, and legislators over the meaning and application of regulatory norms.

In contrast, recent adaptations of private enforcement tend to exhibit less democratic promise. First, they often either do not respond to or threaten to exacerbate existing power imbalances. The suits tend to involve citizens enforcing against fellow citizens, hardly David-versus-Goliath-type contests. And the suits at times exacerbate power disparities. The people who are affected the most by enforcement are often those who have faced historical and enduring forms of marginalization, including Black, pregnant, and transgender people. Second, the suits involve enforcers bringing less direct, affected experience to less dynamic regulatory environments. Private enforcers in these regimes tend not to have the kinds of experiences and personally felt harms that enrich regulatory deliberation. They are more voyeurs than victims. And the kinds of suits they bring involve fewer questions of regulatory interpretation and application. In contrast to thorny questions over, say, whether complicated workplace dynamics trigger employment laws or whether certain parallel business conduct triggers antitrust laws, the laws involve simpler questions, like whether a transgender person was in a bathroom that corresponded with their gender identity rather than their sex assigned at birth. Indeed, the largest interpretive questions about these laws may be about whether or not they are constitutional in the first place—whether they violate the rights of transgender students, Black students, and pregnant people—rather than issues of complex, ongoing implementation. Finally, these suits have the potential to undermine democratic deliberation in a variety of ways—including by posing citizen against citizen and fraying the social fabric and by further subordinating people who have faced historical and enduring forms of oppression.

This Article thus mines the deeper democratic foundations of private enforcement litigation to make sense of, and sort among, its variations. Its core claim is that to navigate the brave new world of private enforcement, it is useful to theorize more richly about what democratic regulatory governance entails and who should be its agents. And its core contribution is to develop a participatory democracy account within the context of private enforcement that enables us to analyze its variations. In doing so, it builds on both democratic theories of adjudication and regulatory enforcement in other contexts, particularly in agencies.17 17.See generally, e.g., Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 84–95 (2019) (drawing on Progressive Era thought to develop a democratic vision of administrative law and governance); Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government (2018) (articulating a vision of administrative governance as reasoned administration and showing how administrative law contributes to democratic legitimacy); K. Sabeel Rahman, Democracy Against Domination (2016) (drawing on Progressive Era democratic theory to develop a progressive vision of regulatory governance).Show More One caveat is that while this Article provides a general theoretical account of the promises of traditional private enforcement suits, at the more granular level—in particular, regulatory regimes and enforcement settings—legislators, courts, and civil rule-makers have to make context-dependent decisions about facilitating, calibrating, and at times limiting private enforcement.18 18.See infra note 167 and accompanying text.Show More Such decisions involve a complex constellation of considerations that will vary across contexts. Similarly, particular ways of organizing litigation—including those that stymy public participation—may also undermine private enforcement, and particular private enforcement actions may be less valuable because of redundancy or over-enforcement concerns and calibration issues. This Article, however, at the least can inform analyses about designing private enforcement regimes by augmenting and clarifying the set of general reasons for Congress to rely on private enforcement in traditional contexts and for courts and civil rule-makers to facilitate it.

While this Article supplies a framework for justifying traditional private enforcement suits and critiquing recent adaptations, it also suggests that dynamics in U.S. law and politics may portend a future where traditional suits wither and recent adaptations grow and flourish.19 19.See infra Part IV.Show More Traditional suits are threatened by arbitration’s increasing privatization of private regulatory law enforcement and Supreme Court procedural decisions making it more difficult for private enforcers to bring and maintain their suits.20 20.See infra Section IV.A.Show More At the same time, bills mimicking the recent adaptations are proliferating across state legislatures, increasing the prospects of a future where private enforcement turns away from traditional concerns with marketplace regulation and civil rights and towards issues of cultural grievance and contest.21 21.See infra Section IV.B.Show More This Article suggests that such a paradigm shift might be understood as being emblematic of a political strategy of plutocratic populism—defined by an effort to undermine worker- and consumer-protective regulatory law and enact deregulatory policies favoring the ultra-wealthy and powerful corporations while using cultural grievance to obscure those policies and win working-class support.22 22.See infra notes 225–27 and accompanying text.Show More

This Article proceeds in four Parts. Part I explores the characteristics of both traditional forms and recent adaptations of private enforcement. It also describes some of the emerging critiques of the recent private enforcement regimes. To make inroads in the debate over private enforcement’s variations, Part II takes a step back to consider the various democratic rationales for and against private enforcement. The Part then builds on this body of thought by developing a participatory democracy account of regulatory enforcement, laying out the rationales for it, and sketching out how it might apply to enforcement processes. Part III digs in further, applying the participatory democracy theory to both the traditional forms and newer adaptations of private enforcement. It argues that traditional private enforcement schemes are generally supported by the rationales elaborated in Part II, while the newer adaptations are generally not.

Part IV steps back further and explores how dynamics in our law and politics may mean that traditional private enforcement suits wither while recent adaptations bloom. And it suggests that legal challenges to these new laws and the enactment of copycat laws in Democrat-controlled states are unlikely to stem the tide and indeed will fit into the cultural grievance playbook. The only effective response to the paradigm shift away from traditional private enforcement, then, may perhaps be the most difficult to achieve: building an inclusive working-class populism that re-centers questions of democracy, equality, and economic distribution and calls for vibrant and robust democratic-regulatory governance.

  1. See infra Section I.A. I occasionally use the term “citizen” to refer to private enforcers, in part because private enforcement suits are at times styled as “citizen suits,” particularly in the environmental context. See, e.g., Katherine A. Rouse, Note, Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions, 93 N.Y.U. L. Rev. 1271, 1275–84 (2018) (exploring citizen suit regimes). However, I am referring to citizenship as a practice of participation in political-legal enforcement, and I do not mean to draw the formal distinction delineating citizens and non-citizens under various U.S. legal regimes, particularly because some private enforcers need not be U.S. citizens under the law and, indeed, some private enforcement regimes protect non-citizens. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, § 703, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e–2000e-2) (banning employment discrimination on account of national origin). ↑
  2. See infra Section I.A; see also David L. Noll & Luke Norris, Federal Rules of Private Enforcement, 108 Cornell L. Rev. (forthcoming 2023) (manuscript at 2–3) (on file with the author) (noting private enforcement is a product of legislatures “creating private rights of action, modifying court procedures, and subsidizing litigation through attorney’s fee-shifts, damages enhancements, and other measures that make it attractive for private parties and the attorneys who represent them to shoulder the work of enforcing the law”). ↑
  3. S.B. 8, § 3, 87th Leg., Reg. Sess. (Tex. 2021) (codified at Tex. Health & Safety Code Ann. § 171.208 (West 2022)) (permitting “any person” to bring an action against anyone who “aids or abets the performance or inducement of an abortion”). ↑
  4. See, e.g., H.B. 1233, § 1(5)(a), 112th Gen. Assemb., Reg. Sess. (Tenn. 2021) (codified at Tenn. Code Ann. § 49-2-805 (2021)) (permitting any student, teacher, or employer to sue if they have to share a restroom with a transgender person); S.B. 1028, 2021 Leg., Reg. Sess. § 12 (Fla. 2021) (codified at Fla. Stat. § 1006.205 (2021)) (permitting students to sue if they are “deprived of an academic opportunity” by being required to play sports with a transgender person). ↑
  5. See, e.g., S.B. 1327, 2022 Leg., Reg. Sess. (Cal. 2022) (codified at Cal. Bus. & Prof. Code § 22949.60 (Deering 2022) and Cal. Civ. Proc. Code § 1021.11 (Deering 2022)) (authorizing private enforcement suits against anyone who manufactures, distributes, or sells restricted firearms); Teaganne Finn, DeSantis Pushes Bill Targeting Critical Race Theory in Schools, NBC News (Dec. 15, 2021), https://www.nbcnews.com/politics/polit‌ics-news/desantis-pushes-bill-targeting-critical-race-theory-schools-n1286049 [https://perma‌.cc/2XDZ-UHP3] (“Republican Florida Gov. Ron DeSantis is pushing a new bill that would allow parents to sue school districts if their children are taught critical race theory in classrooms, which mirrors how Texas’ abortion ban is enforced.”); Laura Meckler, Teachers Union Sues New Hampshire Over Law Barring Certain Race Lessons, Wash. Post (Dec. 13, 2021), https://www.washingtonpost.com/education/2021/12/13/new-hampshire-critical-race-theory-lawsuit/ [https://perma.cc/N884-TTHK] (describing law passed in New Hampshire regarding the teaching of topics around race and its private right of action). For an overview of all CRT bills proposed and passed, see Peter Green, Teacher Anti-CRT Bills Coast to Coast: A State by State Guide, Forbes (Feb. 16, 2022), https://www.forbes.com/sites/pete‌rgreene/2022/02/16/teacher-anti-crt-bills-coast-to-coast-a-state-by-state-guide/?sh=306100ec‌4ff6 [https://perma.cc/E5CZ-Y6BJ]. ↑
  6. See Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 529–30 (2021) (deciding whether pre-enforcement review of the statute’s constitutionality is permissible). ↑
  7. See infra notes 50, 67–69 and accompanying text. ↑
  8. See Whole Woman’s Health, 142 S. Ct. at 535–37. ↑
  9.  See infra note 70 and accompanying text; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022). ↑
  10. See Jon D. Michaels & David L. Noll, Vigilante Federalism, Cornell L. Rev. (forthcoming 2023) (manuscript at 3–4, 18–22), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=​3915944 [https://perma.cc/J8ZY-V26M] [hereinafter Michaels & Noll, Vigilante Federalism] (advancing all of these arguments); see also Aziz Z. Huq, The Private Suppression of Constitutional Rights, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 51–54), https://ssrn.com/abstract=4072800 [https://perma.cc/CD2F-HQW8] (connecting S.B. 8 to the Fugitive Slave Act and a larger history of private suppression of constitutional rights that includes labor suppression and racially restrictive covenants); Jon Michaels & David Noll, We Are Becoming a Nation of Vigilantes, N.Y. Times (Sept. 4, 2021), https://www.nytimes.c​om/2021/09/04/opinion/texas-abortion-law.html [https://perma.cc/6UPG-PLB9] (“In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers around the country have . . . inverted private enforcement laws . . . to enable individuals to suppress the rights of their neighbors, classmates and colleagues.”); Laurence H. Tribe & Stephen I. Vladeck, Texas Tries to Upend the Legal System With Its Abortion Law, N.Y. Times, (July 19, 2021), https://www.nytimes.com/2021/07/19/opinion/texas-abortion-law-reward.html/ [https://perma.cc/G9EF-CZN4] (arguing that S.B. 8 is designed to evade federal review). A federal district court judge overseeing litigation surrounding S.B. 8 found that it violates constitutional due process. See Whole Woman’s Health, 141 S. Ct. at 2494. ↑
  11. See Michaels & Noll, Vigilante Federalism, supra note 10, at 28–31. ↑
  12. See infra Section II.A. ↑
  13. See infra Section II.A. ↑
  14.  See, e.g., Cass R. Sunstein, Article II Revisionism, 92 Mich. L. Rev. 131, 131 (1993) (overviewing and critiquing the argument that “certain grants of standing—to citizens, taxpayers, or others without an individuated injury—would compromise the vesting of executive power in the President and the grant of power to the President, rather than to courts or to citizens, to ‘take Care that the Laws be faithfully executed’”). ↑
  15. See infra Section II.A. ↑
  16. See Stephen B. Burbank, Sean Farhang & Herbert Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 666 (2013) (arguing that “private enforcement regimes contribute to participatory and democratic self-government”). ↑
  17.  See generally, e.g., Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 84–95 (2019) (drawing on Progressive Era thought to develop a democratic vision of administrative law and governance); Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government (2018) (articulating a vision of administrative governance as reasoned administration and showing how administrative law contributes to democratic legitimacy); K. Sabeel Rahman, Democracy Against Domination (2016) (drawing on Progressive Era democratic theory to develop a progressive vision of regulatory governance). ↑
  18. See infra note 167 and accompanying text. ↑
  19. See infra Part IV. ↑
  20. See infra Section IV.A. ↑
  21. See infra Section IV.B. ↑

  22. See infra notes 225–27 and accompanying text. ↑

Federalism, Private Rights, and Article III Adjudication

This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have traditionally been the primary deciders of lawsuits over private rights—historically defined as suits regarding “the liability of one individual to another under the law as defined.” If Congress could limitlessly assign adjudication of private rights cases to federal officials lacking the life tenure and salary protections of Article III judges, the political branches of the federal government would enjoy vastly expanded authority to encroach on state courts’ traditional authority to decide common law and equity cases between individuals. We argue that such vast congressional power is inconsistent with the limits on federal authority in a constitutional scheme in which state courts have traditionally dominated the adjudication of ordinary private disputes and in which Congress’s power of direct taxation and ability to create lower federal courts were hard-won concessions when the Constitution was adopted. Article III’s implicit constraints on congressional power to confer private rights cases on non-Article III federal tribunals effectively checks federal power to supplant state court adjudication by requiring that adjudicative power over such cases go substantially to Article III courts, bodies constitutionally insulated from congressional control. The private rights/public rights distinction thus operationalizes a principle of constitutional federalism through the mechanism of federal-level separation of powers. Article III’s federalism underlay explains the Supreme Court’s special concern with non-Article III adjudication of state law claims and of questions of “jurisdictional” fact—two doctrinal positions that have puzzled commentators focused on the threat that proliferation of non-Article III tribunals poses to the power of Article III courts, rather than to the power of state courts and local juries. By showing how federalism is an important part of the non-Article III adjudication puzzle, this Article complements prior accounts that focus solely on concerns with the separation of powers and individual liberty to explain constitutional constraints on congressional power to vest adjudicatory authority in federal officials lacking lifetime tenure and salary protections.

Introduction

Congress’s power to entrust adjudication to non-Article III judges or tribunals is an enduring enigma. Article III provides that: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”1 1.Id. § 2.Show More If this Vesting Clause and the Article III, Section 2 enumeration of nine “Cases” and “Controversies” to which the “judicial Power shall extend”2 2.See infra Part I.Show More are to mean something, there must be some limit to Congress’s power to assign final determinations in Article III-listed cases and controversies outside the judicial branch. But the nature of this limit remains one of the thorniest problems in modern constitutional and administrative law. The Supreme Court has developed a controversial “public rights doctrine” to define the constitutional scope of non-Article III adjudication: Congress has broad discretion to use non-Article III adjudicators in “public rights” cases and lacks similar discretion in “private rights” cases.

Concerns with individual liberty and federal-level separation of powers provide the two dominant themes in judicial opinions and scholarship relating to the public rights doctrine.3 3.Cf. Badgerow v. Walters, 142 S. Ct. 1310, 1322 (2022) (declining to uphold federal jurisdiction under the Federal Arbitration Act over a suit to vacate an arbitration award because “‘[e]nforcement of the Act,’ we have understood, ‘is left in large part to the state courts’” (citation omitted)).Show More What has been overlooked in prior accounts is a third concern that was critical at the time of Article III’s adoption: protecting the general primacy of state courts in deciding traditional categories of disputes between private parties outside the maritime context. In the wake of post-1930 federal legislation that has greatly expanded the scope of federally created rights and obligations, concern with the public rights doctrine has commonly focused on questions of separation of powers between the Article III courts and Congress’s administrative creations. We highlight here, however, how the private rights side of the doctrine has operated to preserve pre-existing state judicial power by limiting federal tribunals for adjudicating cases and controversies between private parties.4 4.See infra text accompanying notes 143–45.Show More

That state courts should handle ordinary private disputes outside the maritime context was axiomatic when the Constitution was adopted. This basic presumption of preserving state adjudicative power was strongly reflected in discussion and practice both at the Founding and in subsequent decades. It was, for example, the imperative of preserving state court decisional primacy over traditional private disputes that made Article III’s provision for interstate diversity jurisdiction a point of peak controversy during ratification debates. At a time when interstate (and even long-distance intrastate) travel could be forbiddingly time-consuming and inconvenient, this constitutional federalism concern reflected very practical interests in ensuring that state citizens retained access to relatively proximate, local courts and juries to resolve ordinary private disputes.5 5.See infra text accompanying notes 139–60.Show More

Preserving state court decisional primacy in private rights cases could not only spare citizens the expense of travel to distant federal forums, but, more fundamentally, could also safeguard local governance and individual liberty by ensuring the centrality of local judges and juries in private dispute resolution.6 6.See infra text accompanying note 184.Show More Article III permitted some encroachment on such traditional work of state courts through its provisions for diversity jurisdiction, but the requirement of diversity itself ensured that this encroachment was limited, as was the mechanism—the Article III judiciary, through which such inroads could be made. If Congress could sidestep such limits by assigning adjudication of private rights cases to federal officials lacking the life tenure and salary protections of Article III judges, the political branches of the federal government would enjoy vastly expanded authority to encroach on state courts’ traditional authority to decide common law and equity cases among private parties.

The Judiciary Act of 1789 and relevant Supreme Court decisions from the nineteenth through the twentieth centuries, and even today, are consistent with recognition of the presumptive primacy of state court settlement of ordinary private disputes outside the admiralty and maritime contexts. Indeed, the provisions for federal court jurisdiction in the Judiciary Act of 1789 were notably parsimonious, prominently featuring, for example, a then-significant five-hundred-dollar amount-in-controversy requirement and only twice-a-year circuit courts for diversity jurisdiction—limitations that helped ensure that only a severely restricted subset of diversity cases would make their way to federal, rather than state, courts.7 7.See, e.g., Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L.J. 197, 208 (“Use of the [public-versus-private rights] dichotomy to determine the proper article III-article I division contravenes the policies and language of article III.”).Show More The substantially unchallenged status of state court primacy in resolving private disputes—partly a natural product of the limited resources and personnel of the federal government for much of United States history—helps explain the federalism dimension of Article III that was so prominent in ratification debates.

Appreciation of the federalism dimension of Article III casts the public rights doctrine into a different light. Some who have approached the doctrine strictly from a separation of powers perspective have dismissed its applications as incoherent or even mystifying.8 8.See, e.g., Kent Barnett, Due Process for Article III—Rethinking Murray’s Lessee, 26 Geo. Mason L. Rev. 677, 691–92 (2019) (“[W]hen private parties have a dispute (usually concerning matters of state law), Article III offers its most robust protection. Of course, it is in these cases that the political branches would usually have the least interest.”); James E. Pfander & Andrew G. Borrasso, Public Rights and Article III: Judicial Oversight of Agency Action, 82 Ohio State L.J. 493, 496 (2021) (“Some think it odd that Article III operates more insistently to ensure review of private matters of state law than of claims based on federal statutes.”).Show More In comparison to federal law matters, state law matters seem less likely to be subject to abusive allocation by a Congress presumptively more removed from specifically state concerns; yet Supreme Court Justices have repeatedly suggested that the state law status of a dispute between private parties makes its assignment to a non-Article III tribunal especially suspect.9 9.285 U.S. 22 (1932).Show More Under a federalism perspective, this seeming anomaly dissolves: by restricting federal resolution of state law claims by non-Article III tribunals, the Court’s decisions have been faithful to Article III’s federalism underlay by helping ensure that state courts (with state judges and juries) remain the primary deciders of such matters. The federalism concern also helps explain the Supreme Court’s evident caution, in the landmark case of Crowell v. Benson,10 10.Id. at 54–55, 63 (holding that findings of fact “as to the circumstances, nature, extent and consequences of the injuries” sustained by a maritime employee may be entrusted to a deputy commissioner subject to judicial review of law but that a “different question is presented where the determinations of fact are fundamental or ‘jurisdictional,’ in the sense that their existence is a condition precedent to the operation of the statutory scheme” and so must be determined by an Article III court). The Crowell Court’s mandate that an Article III district court ought to “determine for itself the existence of these fundamental or jurisdictional facts,” id. at 63, has perplexed some commentators. See, e.g., Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65 Ind. L.J. 233, 268–69 (1990) (“[I]f there is one thing plain about the structure of article III, it is that the question whether it is expedient and wise to have a case litigated in an article III federal trial court is not a matter of constitutional principle at all.”).Show More in assessing the proper allocation of decisional power between an administrative agency and the Article III courts—particularly as to so-called “jurisdictional facts”11 11.See infra text accompanying notes 254–55.Show More prominent in that literally borderline maritime case.12 12.The protection is imperfect, of course: Congress can extend the reach of federal law—and, consequently, the Article III courts’ federal question jurisdiction—through exercise of its Article I powers, which the Article III courts have recognized to be vast. Indeed, Diego Zambrano has argued that in the 1980s and 1990s, “the federal government began to aggressively appropriate state-court litigation[] . . . leading to negative distributional consequences for small-stakes litigants.” Diego A. Zambrano, Federal Expansion and the Decay of State Courts, 86 U. Chi. L. Rev. 2101, 2101 (2019). To remedy the situation, he advocates “federal funding for state judiciaries and a push for more state complex litigation courts.” Id. at 2102. To the extent Congress seeks to deploy non-Article III adjudicators to displace traditional state court litigation, however, congressional efforts are cabined by the public rights doctrine. See infra text accompanying notes 112–34.Show More

In short, we rehabilitate the private rights/public rights distinction in the face of critiques by explaining the doctrine’s central role in safeguarding constitutional federalism. Article III’s listing of nine forms of “Cases” and “Controversies” to which federal judicial power extended was, like the Constitution’s earlier enumeration of legislative powers, a limiting measure as well as an enabling one. Specifically, Article III’s limited enumeration acted to protect pre-existing state and local governance in the form of state courts and juries. Congress’s constitutional obligation to vest federal power over private rights cases in Article III courts prevents the national government from undermining state court primacy in such cases simply by proliferating non-Article III tribunals to decide them. In this respect, horizontal separation of powers between the federal branches of government not only establishes a balance of powers at the federal level, but also helps protect traditional state prerogatives from federal government intrusion.13 13.John M. Golden & Thomas H. Lee, Congressional Power, Public Rights, and Non-Article III Adjudication, 98 Notre Dame L. Rev. (forthcoming 2023).Show More In contrast, this constitutional federalism concern is severely muted, if not entirely absent, in cases where displacement of state courts is not an issue—as in the territories or, because of longstanding consensus on the desirability of exclusively national adjudication, in admiralty and maritime cases. The concern is similarly muted or absent in public rights cases, which generally do not arise without the involvement, either as a party or as lawmaker, of the federal government. This Article concentrates on the private rights dimension of our account of the public rights doctrine and Article III; another article examines our account’s implications for non-Article III adjudication in public rights cases.14 14.See infra text accompanying notes 38–40, 104, 230–43.Show More

Our insight that federalism is an important factor on the private rights side of the public rights doctrine has significant consequences for modern constitutional and administrative law. While the federalism rationale for the private rights side of public rights doctrine supports the Supreme Court’s special hesitancy with respect to the non-Article III adjudication of state law claims, the centrality of the state court displacement concern—and its established circumvention in the circumstances of territorial courts—also suggests that the private rights category is properly viewed as substantially bounded by history. There is a fair amount of sense in the indications from multiple Supreme Court Justices—as well as the precedentially established relationship between demands for Article III adjudication and Seventh Amendment jury rights—that, for purposes of the public rights doctrine, “private rights” are historically tied to rights recognized by common law, equity, or admiralty at the time of the Constitution’s ratification.15 15.See Golden & Lee, supra note 14.Show More As a consequence, although the reference to constitutional text and ratification debates in our arguments may draw sympathy from originalists, our approach to understanding Article III and the Court’s public rights doctrine is compatible with an expansive domain for constitutionally permissible non-Article III adjudication, an aspect of our understanding that our companion article emphasizes.16 16.See Samuel L. Bray, Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467, 468–69 (2022) (discussing the Supreme Court’s historical approach to determining the scope of Seventh Amendment jury rights).Show More

Ultimately, as with Seventh Amendment jury rights, much depends on how strictly one defines the category of relevant modern analogues for traditionally recognized private rights.17 17.Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1373 (2018) (holding that “reconsideration of the Government’s decision to grant a public franchise” is a matter of public right).Show More We do not assert that we have provided a definitive formulation of the private rights category. But we do believe that our account of federalism’s place within the understanding of public rights doctrine should help define the framework for future debates about when non-Article III adjudication is permissible under Article III. More immediately, our account illuminates current controversies regarding the role of Article III courts in our constitutional system. The Supreme Court has recently made the private rights/public rights distinction a centerpiece of decision making. In 2018, the Court, by a 7–2 vote, upheld Congress’s power to assign initial adjudication of patent validity challenges to administrative tribunals whose members lack the life tenure and salary protections of Article III judges because such challenges implicated “public rights.”18 18.Id. at 1385 (Gorsuch, J., dissenting).Show More The two dissenters contended that patents had been historically treated like “other instruments creating private property rights”19 19.Id. at 1386 (“Today’s decision may not represent a rout but it at least signals a retreat from Article III’s guarantees.”).Show More and thus that the role entrusted by Congress to non-Article III adjudicators was unconstitutional.20 20.See Georgina Yeomans, Ordering Conduct Yet Evading Review: A Simple Step Toward Preserving Federal Supremacy, 131 Yale L.J.F. 513, 513–14 (2021) (“[S.B. 8’s] delegation of enforcement [to private parties] was meant to prevent the law from being challenged in court before it was enforced.”).Show More

This attention to the private rights/public rights distinction is part of a larger trend of re-emphasis on distinctions between private and public concerns in U.S. constitutional law. State actors have begun consciously exploiting the federalism dimension of the private rights/public rights distinction. In 2021, Texas enacted S.B. 8, a law specifically designed to evade injunction by Article III courts by packaging enforcement against abortion providers or assisters as a matter of private right21 21.Crowell v. Benson, 285 U.S. 22, 50–52 (1932).Show More involving “the liability of one individual to another under the law as defined.”22 22.See, e.g., Gordon S. Wood, Power and Liberty: Constitutionalism in the American Revolution 173 (2021); Louis Michael Seidman, State Action and the Constitution’s Middle Band, 117 Mich. L. Rev. 1, 10 (2018) (“Before the New Deal revolution, standard constitutional theory identified a public zone of police power and a private zone of individual freedom.”).Show More More generally, scholars such as Gordon Wood have newly highlighted the extent to which distinctions between the public and the private have been critical in the development of U.S. constitutional law.23 23.Wood, supra note 23, at 173.Show More Wood in particular has shown how such distinctions have helped delineate the bounds of proper government action while also reinforcing the courts’ role as mediators between “the conflicting claims of public authority and [individuals’] private rights.”footnote_id_25_24 Hence, understanding the proper scope of private/public classifications and their relation to structural concerns such as federalism and separation of powers, as well as to concerns of individual liberty, is a crucial problem in modern constitutional law. More specifically, understanding the application of the construct in the context of non-Article III adjudication provides a powerful lens to illuminate fundamental questions about the role of U.S. national courts in a constitutional democracy.

This Article proceeds as follows. Part I describes and distinguishes prior literature. Part II explains and supports our federalism-oriented approach to understanding Article III and the private rights/public rights distinction. It begins with an examination of pertinent constitutional text and continues with an account of the public rights doctrine. Part II then shows how the ratification debates and subsequent congressional practice support our federalism account of Article III and the private rights/public rights distinction. Part III details and analyzes the Supreme Court’s treatment of questions of law, of questions of fact and jury rights, and of party consent to non-Article III adjudication. Part III contends that the outcomes in the Supreme Court’s private rights cases have generally been correct, but that, in important respects, the Court’s reasoning and doctrinal formulations can be improved. Significantly, Part III endorses the notion that, through consent to non-Article III adjudication, parties may waive otherwise applicable rights to Article III proceedings. After all, the structural protections themselves are designed, in substantial part, to protect individual liberty from tyrannical or otherwise excessive government interference. Consequently, individuals are generally free to give up their rights to adjudication in a government forum. Nonetheless, Part III emphasizes that such waivers are subject to backstopping checks to confirm that party consent does not substantially undermine state courts’ traditional prerogatives or federal-level separation of powers—thereby illustrating the complicated ways in which the concerns of federalism, separation of powers, and individual liberty intertwine. The Conclusion summarizes main points and arguments, re-emphasizing how the federalism dimension of Article III helps bring greater clarity to the private rights/public rights picture.

  1. U.S. Const. art. III, § 1. ↑
  2. Id. § 2. ↑
  3. See infra Part I. ↑
  4. Cf. Badgerow v. Walters, 142 S. Ct. 1310, 1322 (2022) (declining to uphold federal jurisdiction under the Federal Arbitration Act over a suit to vacate an arbitration award because “‘[e]nforcement of the Act,’ we have understood, ‘is left in large part to the state courts’” (citation omitted)). ↑
  5. See infra text accompanying notes 143–45. ↑
  6. See infra text accompanying notes 139–60. ↑
  7. See infra text accompanying note 184. ↑
  8. See, e.g., Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L.J. 197, 208 (“Use of the [public-versus-private rights] dichotomy to determine the proper article III-article I division contravenes the policies and language of article III.”). ↑
  9. See, e.g., Kent Barnett, Due Process for Article III—Rethinking Murray’s Lessee, 26 Geo. Mason L. Rev. 677, 691–92 (2019) (“[W]hen private parties have a dispute (usually concerning matters of state law), Article III offers its most robust protection. Of course, it is in these cases that the political branches would usually have the least interest.”); James E. Pfander & Andrew G. Borrasso, Public Rights and Article III: Judicial Oversight of Agency Action, 82 Ohio State L.J. 493, 496 (2021) (“Some think it odd that Article III operates more insistently to ensure review of private matters of state law than of claims based on federal statutes.”). ↑
  10. 285 U.S. 22 (1932). ↑
  11. Id. at 54–55, 63 (holding that findings of fact “as to the circumstances, nature, extent and consequences of the injuries” sustained by a maritime employee may be entrusted to a deputy commissioner subject to judicial review of law but that a “different question is presented where the determinations of fact are fundamental or ‘jurisdictional,’ in the sense that their existence is a condition precedent to the operation of the statutory scheme” and so must be determined by an Article III court). The Crowell Court’s mandate that an Article III district court ought to “determine for itself the existence of these fundamental or jurisdictional facts,” id. at 63, has perplexed some commentators. See, e.g., Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65 Ind. L.J. 233, 268–69 (1990) (“[I]f there is one thing plain about the structure of article III, it is that the question whether it is expedient and wise to have a case litigated in an article III federal trial court is not a matter of constitutional principle at all.”). ↑
  12. See infra text accompanying notes 254–55. ↑
  13. The protection is imperfect, of course: Congress can extend the reach of federal law—and, consequently, the Article III courts’ federal question jurisdiction—through exercise of its Article I powers, which the Article III courts have recognized to be vast. Indeed, Diego Zambrano has argued that in the 1980s and 1990s, “the federal government began to aggressively appropriate state-court litigation[] . . . leading to negative distributional consequences for small-stakes litigants.” Diego A. Zambrano, Federal Expansion and the Decay of State Courts, 86 U. Chi. L. Rev. 2101, 2101 (2019). To remedy the situation, he advocates “federal funding for state judiciaries and a push for more state complex litigation courts.” Id. at 2102. To the extent Congress seeks to deploy non-Article III adjudicators to displace traditional state court litigation, however, congressional efforts are cabined by the public rights doctrine. See infra text accompanying notes 112–34. ↑
  14. John M. Golden & Thomas H. Lee, Congressional Power, Public Rights, and Non-Article III Adjudication, 98 Notre Dame L. Rev. (forthcoming 2023). ↑
  15. See infra text accompanying notes 38–40, 104, 230–43. ↑
  16. See Golden & Lee, supra note 14. ↑
  17. See Samuel L. Bray, Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467, 468–69 (2022) (discussing the Supreme Court’s historical approach to determining the scope of Seventh Amendment jury rights). ↑
  18.  Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1373 (2018) (holding that “reconsideration of the Government’s decision to grant a public franchise” is a matter of public right). ↑
  19. Id. at 1385 (Gorsuch, J., dissenting). ↑
  20. Id. at 1386 (“Today’s decision may not represent a rout but it at least signals a retreat from Article III’s guarantees.”). ↑
  21. See Georgina Yeomans, Ordering Conduct Yet Evading Review: A Simple Step Toward Preserving Federal Supremacy, 131 Yale L.J.F. 513, 513–14 (2021) (“[S.B. 8’s] delegation of enforcement [to private parties] was meant to prevent the law from being challenged in court before it was enforced.”). ↑
  22. Crowell v. Benson, 285 U.S. 22, 50–52 (1932). ↑
  23. See, e.g., Gordon S. Wood, Power and Liberty: Constitutionalism in the American Revolution 173 (2021); Louis Michael Seidman, State Action and the Constitution’s Middle Band, 117 Mich. L. Rev. 1, 10 (2018) (“Before the New Deal revolution, standard constitutional theory identified a public zone of police power and a private zone of individual freedom.”). ↑

  24. Wood, supra note 23, at 173. ↑

Circuit Personalities

The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even self-imposed circuit nicknames. In this Article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality and other rule-of-law values and, in so doing, serve as a critical counterweight to the pernicious nationalization and partisan politics of federal judicial appointments.

Making use of both empirical measures and interviews conducted with eighteen U.S. Court of Appeals judges, this Article shows how same-circuit appeals judges forge a unique and consequential bond with each other. This is true of Democrat and Republican appointees; it is true of a just-appointed judge or a senior-status judge. By mitigating national partisan forces, “circuit personalities” facilitate the very model of judging employed by the U.S. Courts of Appeals—one that assumes any random panel of three can deliberate and deliver a correct result for the court as a whole. This model of judging simply does not work if the judges fall prey to “my team / your team” impulses—forces which are growing steadily as a byproduct of the new nationalization of judicial appointments. To be sure, judges are ideologically divided, and partisan divisions among them are sometimes inevitable. But the best way to prevent those divisions from overtaking appellate courts altogether is for judges to invest in the ties that bind them—to celebrate the local and resist growing calls that they become “partisan warriors” in a national war.

Introduction

The arena for judicial appointment battles today is national: the nominees are largely picked from lists created by national organizations, the tradition of deferring to home-state senators is vanishing, and the people selected as federal judges are increasingly those with national connections not regional ones.1 1.For observations along these lines, see Lawrence Baum & Neal Devins, Federalist Court, Slate (Jan. 31, 2017, 10:12 AM), https://slate.com/news-and-politics/2017/01/how-the-federa​list-society-became-the-de-facto-selector-of-republican-supreme-court-justices.html [https://​perma.cc/JH3R-4UD3]; Carl Hulse, After Success in Seating Federal Judges, Biden Hits Resistance, N.Y. Times (Dec. 5, 2021), https://www.nytimes.com/2021/12/05/us/politi​cs/biden-judges-senate-confirmation.html [https://perma.cc/2JAW-VLRD] (noting the role of “liberal interest groups” in influencing Biden’s judicial picks and demise of the blue slip custom of deferring to home-state senators when confirming federal appellate judges); Adam Liptak, White House Announces Slate of 11 Judicial Nominees, N.Y. Times (June 7, 2017), https://www.nytimes.com/2017/06/07/us/politics/trump-judicial-nominations.html [https://pe​rma.cc/3M5R-HATV] (“Many of the nominees are well known in the conservative legal movement.”); see also infraPart III (delineating the rise of centralized national policies in the appointment of judges).Show More Ironically, though, the judges who go on to the U.S. Courts of Appeals inherit surprisingly local jobs. Although typically lumped together, the thirteen federal appellate courts do not behave as one; they have developed distinct local rules and customs that tend to endure over time.

These circuit-specific practices (some written down, others not) exist on multiple dimensions. Some relate to managing the docket: the frequency of oral argument, the rate of published opinions, and the regularity of en banc sittings.2 2.Other scholars—most notably Marin Levy and Stephanie Lindquist—have done a lot of valuable work describing some of these differences in case management. See, e.g., Marin K. Levy & Jon O. Newman, The Office of Chief Circuit Judge, 169 U. Pa. L. Rev. 2425, 2441–44 (2021); Marin K. Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, 61 Duke L.J. 315, 325 (2011); Stefanie A. Lindquist, Bureaucratization and Balkanization: The Origins and Effects of Decision-making Norms in the Federal Appellate Courts, 41 U. Rich. L. Rev. 659, 662–63 (2007); see also Virginia A. Hettinger, Stefanie A. Lindquist & Wendy L. Martinek, Judging on a Collegial Court 39–41 (2006) (describing institutional influences on rates of dissent among appellate judges, including informal norms and overall workload). We build on their efforts by updating and adding detail to the variation and then making a new argument for the increased importance of these local practices today.Show More Other unique customs are not formalized. Judges on the U.S. Court of Appeals for the Fourth Circuit, for example, descend from the bench after every argument and shake the hands of the lawyers. Ninth Circuit judges and Fifth Circuit judges share bench memos written by pools of law clerks. The Seventh Circuit circulates some panel opinions among all members of their court before publication in a “paper en banc” and accommodates suggestions from judges who are not on the panel. The Sixth Circuit has a “joviality committee” responsible for, among other things, arranging river boat cruises. And the Third Circuit even bears a self-imposed nickname—“the Mighty Third”—which one can imagine is stitched on the back of their judicial softball jerseys.3 3.All of these observations come from our interviews, the notes of which have been inspected by the journal editors. As in other qualitative studies of judicial behavior, we assured each judge we interviewed that we would not quote them by name without explicit permission, and that is why our interviews are described anonymously. See Levy, supra note 2, at 326–27 (describing the same practice for her study).Show More

These local norms and traditions are sticky over time and form what we refer to here as “circuit personalities”—customs and rules that are not uniform nationally but loom large in framing the identity and daily life of a federal appellate judge. Our goal in this Article is to describe these unique circuit personality traits and then to argue that they are critically important to buttressing collegiality and rule-of-law norms in this political moment of historic partisan polarization.

We conducted interviews with eighteen federal appellate judges—at least one sitting on each circuit and at least one appointed by every President from Joe Biden to Gerald Ford. Those interviews taught us that the circuits operate very differently from one another, and that these organically grown rules and traditions are highly valued by judges, even judges that come from widely different backgrounds and with diverging ideologies.

To understand the significance of circuit personalities, it is important to remember that a federal appeals judge is unique in our judicial system.4 4.Harry T. Edwards, Collegial Decision-Making in the US Courts of Appeals, in Collective Judging in Comparative Perspective 57, 61 (Birke Häcker & Wolfgang Ernst eds., 2020) (“The collegial operations and internal decision-making processes of the Supreme Court and the Courts of Appeals are strikingly different.”).Show More Unlike district court judges or Supreme Court Justices (the latter of whom have a growing habit of separate writings and reaching almost celebrity status for their individual views),5 5.Richard L. Hasen, Celebrity Justice: Supreme Court Edition, 19 Green Bag 2d 157, 158 (2016); Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 182 (2020) (“Television appearances, books, movies, stump speeches, and separate opinions aimed at the Justices’ polarized fan bases have created cults of personality around individual Justices.”).Show More federal appellate judges are never lone actors and rarely speak only for themselves. As Judge Wood of the Seventh Circuit puts it, unlike the district court judge, who is “solo in the courtroom, mistress of all she surveys,” a court of appeals judge “cannot hope to get anything done without persuading at least one fellow judge to agree with her.”6 6.Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 Calif. L. Rev. 1445, 1446 (2012).Show More

Indeed, the design structure of the federal courts of appeals requires decisions in randomly assigned panels of three, and this means appellate judges are supposed to be faceless and anonymous.7 7.This design of three-judge-panel decision making on the Courts of Appeals is set forth in 28 U.S.C. § 46(b), (c). By statute, cases are decided on appeal by panels of three judges, unless a majority of the judges in regular active service vote to hear the case all together or “en banc.” Id. § 46(c). It is typically understood that judges are randomly assigned to panels; however, this is not strictly required by the statute and recent studies have questioned whether panels are truly randomly assigned in every circuit. See Adam S. Chilton & Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals, 101 Cornell L. Rev.1, 3–4, 9 (2015) (finding evidence of non-randomness in panel selection).Show More For this system to work, the judges need to buy into a particular model of judging: that any panel of three can deliver a legitimate decision for the circuit as a whole. Correspondingly, en banc reconsiderations are disfavored.8 8.Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1376 (2021).Show More The emphasis is on the court and not the individual, and collegiality among the decision makers is prized.9 9.As Judge Harris of the Fourth Circuit explains (in an article celebrating Judge Edwards of the D.C. Circuit), “Getting it right, it turns out, is not only about the work ethic and the analytic rigor. For Judge Edwards, it also is about the engagement with his colleagues, a collective process in which judges reason their way together to the right answer.” Pamela Harris, A Model of Collegiality: Judge Harry T. Edwards, 105 Judicature 76, 77–78 (2021), https://judicature.duke.edu/articles/a-model-of-collegiality-judge-harry-t-edwards [https://per​ma.cc/WEV7-EHD4].Show More

Circuit personalities are integral to this model of judicial behavior. Much like entrenched family traditions and social gatherings can help bond a bickering family, so too do local norms and rules link circuit judges and help them work together. Of course, the relevant rules and traditions can change over time—and we identify instances where specific circuits affirmatively sought to change their personality traits to improve their decision making. Important to our argument, however, is the fact that (like family traditions) the rules and norms come from within the circuit and not from a national centralized source. In fact, the very process of choosing circuit rules and traditions brings appeals judges together in ways that reinforce their bonds to each other and to the court itself. Likewise, the power of circuit judges to embrace new norms and traditions in order to facilitate orderly, collegial decision making makes clear that circuit personalities can simultaneously advance rule-of-law values and mitigate partisan fighting.

Part of our normative claim is thus quite intuitive: human contact and communal traditions are critical ingredients in healthy collective judicial decision making. Decisions are more efficiently handed down, consensus is more likely, and fractured discord is prevented when the judges feel a connection to one another.10 10.We take these values as a given for healthy judicial decision making. It is of course possible to believe good judging rejects consensus-building and embraces sharp disagreements. Those readers should still find our descriptive findings of interest—even if they are not persuaded by the rest of our argument.Show More More than that, the desire to be liked and respected by your colleagues is a basic psychological motivation.11 11.See Lawrence Baum, Judges and Their Audiences 25 (2006).Show More Indeed, life under the recent pandemic has truly brought this reality home. Several of the judges we spoke to noted that without the regular face time and social gatherings with their colleagues (cancelled due to COVID) they have noticed less consensus on cases and sharper tones in dissents.12 12.See Interview with 4th Cir. Judge (Feb. 8, 2021) (notes on file with editors); Interview with 11th Cir. Judge (Apr. 1, 2021) (notes on file with editors); see also Frank Green, Judges and Observers of Powerful Court of Appeals Express Concern on Partisanship, Rich. Times-Dispatch (Sept. 3, 2021), https://richmond.com/news/state-and-regional/judges-and-obser​vers-of-powerful-federal-appeals-court-express-concern-on-partisanship/article_9981c9ed-c​39c-5f46-8df1-4246cf4ad790.html [https://perma.cc/4G6B-RRWV] (noting the sharp tone between Judge Wynn and Judge Wilkinson on dissents from denial in the Fourth Circuit). There of course could be other factors aggravating this discord besides a lack of personal contact, but the increased isolation certainly does not help foster collegiality.Show More The present moment, therefore, affords a unique opportunity to identify and revalue traditions that were suspended during the pandemic.

Our claim goes beyond improving the daily lives of federal judges, however. Because federal appellate judges are increasingly identified with national groups as opposed to state actors, and since judicial selectors increasingly prioritize demonstrated allegiance to national movements with ideological ties, we are facing something new and worrisome: a model of judicial decision making that falls prey to the “my team / your team” partisan impulses that plague the entire country.13 13.See supra note 1; see also John M. Burman, Should Federal Judges Belong to or Openly Support Organizations that Promote a Particular Ideology?, 13 Wyo. L. Rev. 189, 195 (2013) (“One issue that has arisen is that with increasing frequency, judges are selected or not selected, at least in part, because they belong to or openly support certain groups—groups that openly profess adherence to certain ideological goals—and continue to belong to or openly support those groups after assuming the bench. . . . Whatever the merits of either society, the mere fact that a federal judge belongs to or openly supports one society or the other is tantamount to wearing a banner that says ‘conservative’ or ‘liberal.’”).Show More Given this new reality, local circuit personalities are more important now than ever before because they push back on troubling signs of partisanship in judicial behavior.

And the warning signs of judicial partisanship are growing. The New York Times reported in 2020 that judges appointed by President Trump were less likely to concur with their Democratic-appointed counterparts than were other Republican-appointed judges.14 14.Rebecca R. Ruiz, Robert Gebeloff, Steve Eder & Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, N.Y. Times (Mar. 16, 2020), https://www.nyti​mes.com/2020/03/14/us/trump-appeals-court-judges.html [https://perma.cc/CB4M-CDF5].Show More Zalman Rothschild documented a partisan correlation in recent judicial decisions on Free Exercise challenges during COVID.15 15.Zalman Rothschild, Free Exercise Partisanship, 107 Cornell L. Rev. (forthcoming 2022) (manuscript at 12) (“In the last five years, judicial partisanship in free exercise cases has crescendoed. And when the pandemic struck, resulting in widespread lockdowns of religious houses of worship, the unprecedented number of constitutional free exercise cases brought in such a condensed span of time forced that partisanship into sharp relief.”).Show More And our own study about en banc decision making in the Courts of Appeals indicates a post-2018 spike in partisan behavior in en banc decisions—a spike that bucks a sixty-year trend in the opposite direction.16 16.Devins & Larsen, supra note 8, at 1380. For additional discussion of our en banc study, see Adam Liptak, On Federal Appeals Courts, a Spike in Partisanship, N.Y. Times (Feb. 22, 2021), https://nytimes.com/2021/02/22/us/politics/courts-partisanship.html [https://perma.cc​/FQ6R-P744]. For a discussion of how Trump appointees to the Ninth Circuit are increasingly dissenting from denials of petitions for en banc rehearings, see Andrew Wallender & Madison Alder, Ninth Circuit Conservatives Use Muscle to Signal Supreme Court, Bloomberg L.: US L. Week (Dec. 8, 2021, 4:45 AM), https://news.bloomberglaw.com/us-law-week/ninth-circuit-conservatives-use-muscle-to-signal-supreme-court [https://perma.cc/48YS-EL4V].Show More

No doubt, federal appeals judges have ideological commitments and partisan divisions are thus sometimes inevitable. We do not argue that circuit personalities are a panacea to cure all divisions on the bench; that train has left the station. Our target, instead, is the integrity of the decision making by federal courts of appeals. Federal appeals judges should try to preserve the consensus-driven decision-making model that is the hallmark of their courts. Correspondingly, they should try to steer clear of gratuitous separate opinions, partisan en banc review, and other attention-seeking behavior.17 17.By prioritizing that which is politically salient, moreover, appeals judges effectively limit the right to appeal. En banc and separate opinions are time-consuming to write, and, consequently, attention-seeking appeals judges will have less time to hear argument and write precedential published opinions.Show More Partisan divisions may be inevitable, but they need not become the norm.

The best way forward, we argue, is for federal appeals judges to double down on the local ties that bind. By investing in circuit personalities (what unites them), these judges avoid collateral costs that come with acting as “partisan warriors” on a national stage.18 18.We borrow this phrase from Judge Wilkinson on the Fourth Circuit in connection with a warning. See In re Trump, 958 F.3d 274, 292 (4th Cir. 2020) (Wilkinson, J., dissenting).Show More As we describe below, with partisan fighting comes more dissents, less consensus, more screened-out cases, less deliberation, more divisive headlines, and less anonymous collective reasoning. The stakes, therefore, are enormously high: at risk is the very model of appellate decision making we know.

In this Article, we will both highlight the pervasiveness of nationalization and explain why it is that membership in a collegial circuit mitigates the partisan pressure felt by federal judges in today’s polarized environment. Local norms and traditions inculcate a loyalty to a smaller group—separate from a national allegiance felt by the judges to, for example, the Federalist Society or the American Constitution Society. These unique traditions foster bipartisan relationships and a joint commitment to the rule of law. Circuit personalities, in other words, are an important counterweight to growing partisanship and nationalization. This makes circuit personalities critically important to study and imperative to secure.

This Article proceeds in three parts. Part I describes what we learned from our judicial interviews and other research about the unique rules and customs that vary from circuit to circuit. Mapping out these circuit personalities is useful to both scholars of judicial decision making and members of the judiciary themselves—many of whom, we learned, know little about, and are curious to learn how, their sister circuits operate. Part II explains why these differences are uniquely important to the job of a federal appellate judge. Part III explains the centralizing partisan forces that are threatening the more localized model of federal appellate judging. This Article then concludes by explaining why circuit personalities are important mitigating forces against growing national partisanship and identifying some traits that are particularly desirable.

  1. For observations along these lines, see Lawrence Baum & Neal Devins, Federalist Court, Slate (Jan. 31, 2017, 10:12 AM), https://slate.com/news-and-politics/2017/01/how-the-federa​list-society-became-the-de-facto-selector-of-republican-supreme-court-justices.html [https://​perma.cc/JH3R-4UD3]; Carl Hulse, After Success in Seating Federal Judges, Biden Hits Resistance, N.Y. Times (Dec. 5, 2021), https://www.nytimes.com/2021/12/05/us/politi​cs/biden-judges-senate-confirmation.html [https://perma.cc/2JAW-VLRD] (noting the role of “liberal interest groups” in influencing Biden’s judicial picks and demise of the blue slip custom of deferring to home-state senators when confirming federal appellate judges); Adam Liptak, White House Announces Slate of 11 Judicial Nominees,
    N

    .Y. Times (June 7, 2017), https://www.nytimes.com/2017/06/07/us/politics/trump-judicial-nominations.html [https://pe​rma.cc/3M5R-HATV] (“Many of the nominees are well known in the conservative legal movement.”); see also infra Part III (delineating the rise of centralized national policies in the appointment of judges). ↑

  2. Other scholars—most notably Marin Levy and Stephanie Lindquist—have done a lot of valuable work describing some of these differences in case management. See, e.g., Marin K. Levy & Jon O. Newman, The Office of Chief Circuit Judge, 169 U. Pa. L. Rev. 2425, 2441–44 (2021); Marin K. Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, 61 Duke L.J. 315, 325 (2011); Stefanie A. Lindquist, Bureaucratization and Balkanization: The Origins and Effects of Decision-making Norms in the Federal Appellate Courts, 41 U. Rich. L. Rev. 659, 662–63 (2007); see also Virginia A. Hettinger, Stefanie A. Lindquist & Wendy L. Martinek, Judging on a Collegial Court 39–41 (2006) (describing institutional influences on rates of dissent among appellate judges, including informal norms and overall workload). We build on their efforts by updating and adding detail to the variation and then making a new argument for the increased importance of these local practices today. ↑
  3. All of these observations come from our interviews, the notes of which have been inspected by the journal editors. As in other qualitative studies of judicial behavior, we assured each judge we interviewed that we would not quote them by name without explicit permission, and that is why our interviews are described anonymously. See Levy, supra note 2, at 326–27 (describing the same practice for her study). ↑
  4. Harry T. Edwards, Collegial Decision-Making in the US Courts of Appeals, in Collective Judging in Comparative Perspective 57, 61 (Birke Häcker & Wolfgang Ernst eds., 2020) (“The collegial operations and internal decision-making processes of the Supreme Court and the Courts of Appeals are strikingly different.”). ↑
  5. Richard L. Hasen, Celebrity Justice: Supreme Court Edition, 19 Green Bag 2d 157, 158 (2016); Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 182 (2020) (“Television appearances, books, movies, stump speeches, and separate opinions aimed at the Justices’ polarized fan bases have created cults of personality around individual Justices.”). ↑
  6. Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 Calif. L. Rev. 1445, 1446 (2012). ↑
  7. This design of three-judge-panel decision making on the Courts of Appeals is set forth in 28 U.S.C. § 46(b), (c). By statute, cases are decided on appeal by panels of three judges, unless a majority of the judges in regular active service vote to hear the case all together or “en banc.” Id. § 46(c). It is typically understood that judges are randomly assigned to panels; however, this is not strictly required by the statute and recent studies have questioned whether panels are truly randomly assigned in every circuit. See Adam S. Chilton & Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals, 101 Cornell L. Rev.
    1,

    3–4, 9 (2015) (finding evidence of non-randomness in panel selection). ↑

  8. Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1376 (2021). ↑
  9. As Judge Harris of the Fourth Circuit explains (in an article celebrating Judge Edwards of the D.C. Circuit), “Getting it right, it turns out, is not only about the work ethic and the analytic rigor. For Judge Edwards, it also is about the engagement with his colleagues, a collective process in which judges reason their way together to the right answer.” Pamela Harris, A Model of Collegiality: Judge Harry T. Edwards, 105 Judicature 76, 77–78 (2021), https://judicature.duke.edu/articles/a-model-of-collegiality-judge-harry-t-edwards [https://per​ma.cc/WEV7-EHD4]. ↑
  10. We take these values as a given for healthy judicial decision making. It is of course possible to believe good judging rejects consensus-building and embraces sharp disagreements. Those readers should still find our descriptive findings of interest—even if they are not persuaded by the rest of our argument. ↑
  11. See Lawrence Baum, Judges and Their Audiences 25 (2006). ↑
  12. See Interview with 4th Cir. Judge (Feb. 8, 2021) (notes on file with editors); Interview with 11th Cir. Judge (Apr. 1, 2021) (notes on file with editors); see also Frank Green, Judges and Observers of Powerful Court of Appeals Express Concern on Partisanship, Rich. Times-Dispatch (Sept. 3, 2021), https://richmond.com/news/state-and-regional/judges-and-obser​vers-of-powerful-federal-appeals-court-express-concern-on-partisanship/article_9981c9ed-c​39c-5f46-8df1-4246cf4ad790.html [https://perma.cc/4G6B-RRWV] (noting the sharp tone between Judge Wynn and Judge Wilkinson on dissents from denial in the Fourth Circuit). There of course could be other factors aggravating this discord besides a lack of personal contact, but the increased isolation certainly does not help foster collegiality. ↑
  13. See supra note 1; see also John M. Burman, Should Federal Judges Belong to or Openly Support Organizations that Promote a Particular Ideology?, 13 Wyo. L. Rev. 189, 195 (2013) (“One issue that has arisen is that with increasing frequency, judges are selected or not selected, at least in part, because they belong to or openly support certain groups—groups that openly profess adherence to certain ideological goals—and continue to belong to or openly support those groups after assuming the bench. . . . Whatever the merits of either society, the mere fact that a federal judge belongs to or openly supports one society or the other is tantamount to wearing a banner that says ‘conservative’ or ‘liberal.’”). ↑
  14. Rebecca R. Ruiz, Robert Gebeloff, Steve Eder & Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, N.Y. Times (Mar. 16, 2020), https://www.nyti​mes.com/2020/03/14/us/trump-appeals-court-judges.html [https://perma.cc/CB4M-CDF5]. ↑
  15. Zalman Rothschild, Free Exercise Partisanship, 107 Cornell L. Rev. (forthcoming 2022) (manuscript at 12) (“In the last five years, judicial partisanship in free exercise cases has crescendoed. And when the pandemic struck, resulting in widespread lockdowns of religious houses of worship, the unprecedented number of constitutional free exercise cases brought in such a condensed span of time forced that partisanship into sharp relief.”). ↑
  16. Devins & Larsen, supra note 8, at 1380. For additional discussion of our en banc study, see Adam Liptak, On Federal Appeals Courts, a Spike in Partisanship, N.Y. Times (Feb. 22, 2021), https://nytimes.com/2021/02/22/us/politics/courts-partisanship.html [https://perma.cc​/FQ6R-P744]. For a discussion of how Trump appointees to the Ninth Circuit are increasingly dissenting from denials of petitions for en banc rehearings, see Andrew Wallender & Madison Alder, Ninth Circuit Conservatives Use Muscle to Signal Supreme Court, Bloomberg L.: US L. Week (Dec. 8, 2021, 4:45 AM), https://news.bloomberglaw.com/us-law-week/ninth-circuit-conservatives-use-muscle-to-signal-supreme-court [https://perma.cc/48YS-EL4V]. ↑
  17. By prioritizing that which is politically salient, moreover, appeals judges effectively limit the right to appeal. En banc and separate opinions are time-consuming to write, and, consequently, attention-seeking appeals judges will have less time to hear argument and write precedential published opinions. ↑

  18. We borrow this phrase from Judge Wilkinson on the Fourth Circuit in connection with a warning. See In re Trump, 958 F.3d 274, 292 (4th Cir. 2020) (Wilkinson, J., dissenting). ↑

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