Article

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). ↑

Criminal Law Exceptionalism

For over half a century, U.S. prison populations have ballooned, and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

In this Article, I applaud that critical turn. But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance—issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action. What if the problem with the criminal system isn’t exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed? What if the problems with criminal law are illustrative rather than exceptional? Ultimately, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning—and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration.

Introduction

When I teach criminal law to first-year students, we continually return to the same question: Why is the problem that we are discussing one that requires a criminal legal solution? We read cases in which people have done great harm or subjected others to grave danger. There are clearly problems. And, regardless of politics or ideological commitments, my students generally agree that these are problems in need of solutions. Criminal law casebooks (like judges and politicians) often ask how severely each defendant should be punished for causing harm or creating risk, or how blameworthy the conduct in question is, but those questions gloss over the threshold decision: Why is the problem at issue one that requires a criminal legal solution rather than some other sort of political, institutional, or regulatory response?1 1.See generally Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631 (2020) [hereinafter Ristroph, Carceral State] (characterizing substantive criminal law classes as reflecting an uncritical, formalist vision of criminal law).Show More The failure to ask that question has helped drive decades of ballooning criminal codes and helped ensure that police, cages, and surveillance have become the dominant solutions to social problems.2 2.See, e.g., Jeffrie G. Murphy, “In the Penal Colony” and Why I Am Now Reluctant to Teach Criminal Law, 33 Crim. Just. Ethics 72, 76 (2014); Shaun Ossei-Owusu, Kangaroo Courts, 134 Harv. L. Rev. F. 200, 211 (2021); Ristroph, Carceral State, supra note 1.Show More

Recent years have seen a deep reckoning with this question as more scholars and activists have adopted a critical stance towards the very foundations of criminal law and punishment.3 3.See, e.g., End the War on Black People, The Movement for Black Lives, http://web.archive.org/web/20200316230511/https://policy.m4bl.org/end-war-on-Black-peo​ple/ [https://perma.cc/U455-Y35M] (last visited Aug. 5, 2022) (“Until we achieve a world where cages are no longer used against our people we demand an immediate change in conditions and an end to all jails, detention centers, youth facilities and prisons as we know them.”); 1 The Red Nation, The Red Deal: Indigenous Action to Save Our Earth 12 (2020), http://therednation.org/wp-content/uploads/2020/04/Red-Deal_Part-I_End-The-Occupation-1.pdf [https://perma.cc/62AR-83YE] (“What Creates Crisis Cannot Solve It . . . . We draw from Black abolitionist traditions to call for divestment away from the caging, criminalizing, and harming of human beings . . . .”); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781 (2020) [hereinafter Akbar, Abolitionist Horizon]; Aya Gruber, Policing and “Bluelining”, 58 Hous. L. Rev. 867, 933 (2021) [hereinafter Gruber, “Bluelining”] (“[A]bolitionist ideology . . . is currently experiencing a renaissance in progressive scholarly circles.”); César Cuauhtémoc García Hernández, Abolishing Immigration Prisons, 97 B.U. L. Rev. 245 (2017); Douglas Husak, The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law, 23 New Crim. L. Rev. 27 (2020) (identifying and critiquing a trend of “criminal law skepticism”); Patrisse Cullors, Abolition and Reparations: Histories of Resistance, Transformative Justice, and Accountability, 132 Harv. L. Rev. 1684 (2019); Thomas Ward Frampton, The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics, 135 Harv. L. Rev. 2010 (2022); Kate Levine, Police Prosecutions and Punitive Instincts, 98 Wash. U. L. Rev. 997 (2021); Allegra M. McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1622 (2019) [hereinafter McLeod, Abolition Democracy]; Dorothy E. Roberts, Democratizing Criminal Law as an Abolitionist Project, 111 Nw. U. L. Rev. 1597, 1604–05 (2017).Show More Critiques of mass incarceration have gained ground across the political spectrum,4 4.How much agreement there actually is on what is wrong with the system, though, remains an open question. See generally Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 Mich. L. Rev. 259 (2018) [hereinafter Levin, Consensus Myth] (arguing that the “consensus” on “criminal justice reform” is largely illusory). See also infra Section III.D (examining these critiques).Show More and the language of abolition has entered the mainstream.5 5.See infra Section I.B.Show More In short, the embrace of criminal law as the solution to social problems is becoming much less reflexive.6 6.To be clear, this turn is hardly unprecedented, and fundamental structural critiques of criminalization and the criminal system certainly are not new. See, e.g., Angela Y. Davis, Are Prisons Obsolete? (2003); Eugene V. Debs, Walls & Bars (Charles H. Kerr & Co. 1973) (1927); Thomas Mathiesen, The Politics of Abolition Revisited, at xv-xvi (2015) (explaining the need to republish the 1974 abolitionist text in light of contemporary trends in penal policy and activism); Máximo Langer, Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then, 134 Harv. L. Rev. F. 42 (2020) (tracking diverse strands of abolitionist thought internationally).Show More But such a development invites its own threshold question—the question that follows every classroom or political discussion of cases involving great harm or risk of harm: If not criminal law, what else?7 7.There are numerous accounts of what might constitute that “something else.” See, e.g., R.A. Duff, The Realm of Criminal Law 280–92 (2018); Fay Honey Knopp et al., Instead of Prisons: A Handbook for Abolitionists (1976).Show More

Of course, that’s the million-dollar question. And, in this Article, I don’t purport to answer it.8 8.And there’s no reason to think that there is a single answer—one way of understanding the metastasization of criminal law and punishment is the allure of a one-size-fits-all regulatory response. See Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 2 (2007) (describing a dominant model of governance in which “criminalization and cages [function] as catchall solutions to social problems”).Show More From abolitionist activists to scholars of restorative justice and regulatory compliance, others strive to imagine alternative responses to risk, harm, and wrongdoing. The development of alternative state regulatory regimes, community-based interventions, and other different approaches are increasingly receiving much-needed attention in the literature and in practice.

In this Article, I ask a different question—one that is implicated by this search for alternatives: What makes criminal law distinct from the alternatives? At first blush, the answer may appear obvious, and the question not worth asking—criminal law stands as the most apparent and unrestrained form of state violence, so of course it is not only different, but also worse than all other alternatives.9 9.See infra Section I.A; see also F. Andrew Hessick & Carissa Byrne Hessick, Nondelegation and Criminal Law, 107 Va. L. Rev. 281, 300 (2021) (collecting sources); Donald Dripps, The Exclusivity of the Criminal Law: Toward a “Regulatory Model” of, or “Pathological Perspective” on, the Civil-Criminal Distinction, 7 J. Contemp. Legal Issues 199, 204 (1996) (arguing that criminal law is distinct from other areas of law in that it “connects the power of inflicting pain with the authority of moral judgment”).Show More Criminalization exposes people to the violence and indignities of policing, the prospect of imprisonment and the loss of liberty, and even the death penalty. The most basic freedoms are at stake. But I wonder whether the assumption that criminal law is clearly different from, and unambiguously worse than, other institutional responses to harm and risk implicitly rests on another assumption: that the violence, social control, selective enforcement, and subordination that define the carceral state are exclusive to (or dramatically worse in the context of) the criminal system.10 10.Cf. Sandra G. Mayson, The Concept of Criminal Law, 14 Crim. L. & Phil. 447, 448 (2020) (“[N]otwithstanding the centrality of the question, there appears to be no clear consensus among either scholars or reformers about what differentiates criminal law from every other kind of law.”).Show More

Put differently, what if the problem with the criminal system is not exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed?11 11.See Jamelia Morgan, Lawyering for Abolitionist Movements, 53 Conn. L. Rev. 605, 609 (2021) (“It would be an understatement to say that abolition is an ambitious and long-term project. Leading abolitionist theorist Ruth Wilson Gilmore captures this ambition in her famous quote, which, to paraphrase, is that to create an abolitionist society, abolitionists have to change one thing: everything.”).Show More What if the problem is the state itself or, at least, a set of power relations that define the U.S. political economy? What if criminal law is illustrative rather than exceptional?12 12.Cf. Jonathan Simon, Rise of the Carceral State, 74 Soc. Rsch. 471, 482–96 (2007) [hereinafter Carceral State] (arguing that prisons historically have operated as reflections of dominant governance models).Show More

In this Article, I contend that increasingly widespread critiques of mass incarceration and mass criminalization appear to reflect significant concerns about social control, punitiveness, and distributive injustice. I argue that, when taken seriously, those concerns in turn speak to overarching issues of power and governance—issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.13 13.See Mariame Kaba, We Do This ’Til We Free Us: Abolitionist Organizing and Transforming Justice 5 (Tamara K. Nopper ed., 2021) (“The [prison industrial complex] is linked in its logics and operation with all other systems . . . .”).Show More If, as contemporary critical accounts increasingly suggest, the problems of criminal law are not simply the long-recognized flaws of its administration (brutal conditions of confinement, weak protections for defendants’ rights, the violence of policing, etc.) but instead are problems of power relations, domination, hierarchy, and deep-seated societal punitiveness, then I am skeptical that it makes sense to understand criminal law and its pathologies as clearly distinguishable from any imagined alternatives.14 14.Cf. Mayson, supra note 10, at 461 (“A regulatory regime of coercive prevention would have an equally disparate impact on marginalized groups . . . .”).Show More

This Article, then, contributes to a growing literature that frames the “criminal system” and its injustices as implicating legal, political, and institutional dynamics beyond the boundaries of substantive criminal codes and rules of criminal procedure.15 15.See, e.g., Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice Thinking, in The New Criminal Justice Thinking 1, 1 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (“If we are to fix the current criminal system . . . we need a complete and nuanced understanding of what exactly this system is: What social and political institutions, what laws and policies, does it encompass?”); Kaba, supra note 13, at 5; Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families–and How Abolition Can Build a Safer World 25–26 (2022) [hereinafter Roberts, Torn Apart]; Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1490 (2016) (“Mass criminalization also enables police contact with African-Americans through the diffusion of criminal justice officials, norms, and strategies into the structure and organization of the welfare state.”); Barbara A. Fedders, The End of School Policing, 109 Calif. L. Rev. 1443 (2021); Eisha Jain, Understanding Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 161 (2017); see also Jamelia N. Morgan, Policing Marginality in Public Space, 81 Ohio St. L.J. 1045, 1046 (2020) (examining the harms that stem from “managing access to public space using criminal laws”); Dorothy Roberts, Opinion, Abolishing Policing Also Means Abolishing Family Regulation, Imprint (June 16, 2020, 5:26 AM), https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishing-fa​mily-regulation/44480 [https://perma.cc/7CLU-TWH3] (“[P]roposals [to defund the police] ignore how the misnamed ‘child welfare’ system, like the misnamed ‘criminal justice’ system, is designed to regulate and punish black and other marginalized people.”); Heather Schoenfeld, A Research Agenda on Reform: Penal Policy and Politics Across the States, 664 Annals Am. Acad. Pol. & Soc. Sci. 155, 157–58 (2016) (describing the current model of criminalized governance as “incorporat[ing] punitive responses to poverty, employment rights, and even young children’s behavior”); Noah D. Zatz, A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond, 39 Seattle U. L. Rev. 927, 929 (2016) (calling for an examination into the connection between the modern practice of offering work as an alternative to incarceration and peonage as used in the Jim Crow South).Increasingly prevalent arguments that the administration of criminal law can’t or shouldn’t be thought of as a “system” reflect this hesitancy about seeing a bounded, unified set of actors and institutions. See, e.g., Monica Bell, Stephanie Garlock & Alexander Nabavi-Noori, Toward A Demosprudence of Poverty, 69 Duke L.J. 1473, 1475–76 n.7 (2020) [hereinafter Bell et al., Demosprudence of Poverty]; Trevor George Gardner, Immigrant Sanctuary as the “Old Normal”: A Brief History of Police Federalism, 119 Colum. L. Rev. 1, 15 n.44 (2019); Bernard E. Harcourt, The Systems Fallacy: A Genealogy and Critique of Public Policy and Cost-Benefit Analysis, 47 J. Legal Stud. 419, 421–22 (2018); Sara Mayeux, The Idea of “The Criminal Justice System”, 45 Am. J. Crim. L. 55, 65 (2018); John F. Pfaff, Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth, 111 Mich. L. Rev. 1087, 1089 (2013).Show More This literature seeks to move past a focus only on “mass incarceration,” the “carceral state,” and the most egregious forms of state violence and degrading punishment to examine more pervasive punitive logics and institutions of subordination and control.16 16.Indeed, some commentators question whether the language of “mass incarceration” or the “carceral state” is misleading in its under-inclusivity. See, e.g., Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1804 (2012) (“[F]ocusing exclusively on ‘mass incarceration’ obscures the reality that most convicted persons are not sentenced to prison.” (footnote omitted)); Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 Wis. L. Rev. 321, 325 (arguing that the problem of “mass incarceration” is “better characterized as one of mass criminalization”).Show More

The move to see punitive logics embedded in a host of U.S. institutions, from housing policy to employment law, strikes me as important in and of itself.17 17.Cf. Michel Foucault, Discipline and Punish 297 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (arguing that society contains a host of ostensibly non-penal institutions, “which, well beyond the frontiers of criminal law, constitute[] what one might call the carceral archipelago”).Show More And, part of my intention here is to advance that move.18 18.See infra note 114 and accompanying text.Show More But, I also hope to highlight a tension that complicates many left and progressive critiques of the criminal system and the carceral state: a skepticism about the state and sources of authority when it comes to criminal institutions, but a faith in or enthusiasm for the state and sources of authority when they are acting in civil, regulatory, or non-criminal capacities.19 19.In this Article, I use “criminal system” or “criminal legal system” advisedly, mindful of increasingly prevalent academic arguments that the administration of criminal law hardly constitutes a “system.” See supra note 15 (collecting sources).Show More In this Article, I ask whether such faith is justified and how left critics of the penal state can reconcile their concerns with arguments for an expanded welfare state, greater corporate social responsibility, and non-criminal disciplinary structures.20 20.Here and throughout, I am aware that “the left” contains multitudes and that there always is a risk of potentially mis-ascribing positions or flattening out nuance when referring to such a large (and ill-defined) political category. Indeed, one of my goals in this Article is to help tease out different strands in the left anti-carceral coalition to highlight the way in which different postures toward institutions of criminal law might reveal different postures towards the state, and vice versa.Show More In this respect, this Article is also a piece of my larger project of interrogating the fraught relationship between progressivism—in both its contemporary and historical incarnations—and carceral politics.21 21.See Benjamin Levin, Imagining the Progressive Prosecutor, 105 Minn. L. Rev. 1415 (2021); Benjamin Levin, Mens Rea Reform and Its Discontents, 109 J. Crim. L. & Criminology 491 (2019); Benjamin Levin, Wage Theft Criminalization, 54 U.C. Davis L. Rev. 1429 (2021).Show More

One way of understanding many libertarian critiques of overcriminalization and arguments for criminal justice reform is that they reflect a basic hostility to state power—criminalization is objectionable because government regulation is objectionable; incarceration is objectionable because it represents an extremely wasteful government spending program.22 22.See, e.g., George F. Will, Opinion, Eric Garner, Criminalized to Death, Wash. Post (Dec. 10, 2014), https://www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11e4-9f38-95a187e4c1f7_story.html [https://perma.cc/​TY73-3PPQ]; Donald A. Dripps, Why Gideon Failed: Politics and Feedback Loops in the Reform of Criminal Justice, 70 Wash. & Lee L. Rev. 883, 919 (2013) (“An important strand of contemporary conservative thought indeed sees the modern criminal justice system as big government with its usual defects.”); Jonathan Simon, Law’s Violence, the Strong State, and the Crisis of Mass Imprisonment (for Stuart Hall), 49 Wake Forest L. Rev. 649, 670 (2014) [hereinafter Simon, Law’s Violence] (“The carceral state, it turns out, can also be criticized as a form of big government.”).Show More But, for left critics (myself included), how do we reconcile claims about the state and U.S. political economy as engines of subordination and oppression with calls for more civil regulatory regimes and more government programs?23 23.In focusing on left critics of the carceral state, I don’t mean to suggest that there aren’t significant tensions and contradictions on the right when it comes to criminal policies. Indeed, the support for criminal law among purportedly “anti-regulatory” commentators and lawmakers has been a hallmark of U.S. neoliberalism. See, e.g., Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order 40–41 (2011) [hereinafter Harcourt, Illusion of Free Markets]. And right-leaning anti-criminalization politics have received much-deserved skeptical treatments. See, e.g., Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 7–8 (2015); Levin, Consensus Myth, supra note 4.Show More And how do critics of capitalism and structural inequality reconcile those deep-seated commitments with support (tenuous as it may be at times) for schools, employers, and other powerful non-state actors who operate as disciplinary authorities and might ensure “accountability” for harm and wrongdoing?

I worry about the possible risk of embracing criminal law exceptionalism—an acceptance of oppressive state and private institutions as long as they appear to be far enough removed from police, cages, and the ostentatious cruelty of the criminal system.24 24.On different possible understandings of “criminal law exceptionalism,” see generally Alice Ristroph, The Wages of Criminal Law Exceptionalism, Crim. L. & Phil. (Oct. 12, 2021) [hereinafter Ristroph, Wages of Criminal Law Exceptionalism], https://link.springer.com/artic​le/10.1007/s11572-021-09613-5 [https://perma.cc/7T3H-VY4K]. This Article owes a great debt to Ristroph’s characterization and critiques of traditional criminal law exceptionalism. See infra Section I.A.Show More And, I worry that “far enough” may at times rest on overly formalist distinctions between civil and criminal or between public and private, rather than the animating principles and ideologies of punishment, control, and exclusion.25 25.At the very least, I think it’s important to flesh out how we should go about assessing “far enough.”Show More

Ultimately, then, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning—and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration. To be clear, that’s a reckoning that is underway in some corners.26 26.See infra Section III.D.Show More I take contemporary critical scholarship and activist accounts as an invitation to ask how to avoid replicating the evils of the criminal system in other models of regulation and governance.27 27.See infra Section III.D.Show More To the extent that commentators wish to retain the criminal/civil distinction or some version of criminal law exceptionalism, though, I ask how we might rationalize such a move. What makes criminal law and its attendant institutions different, and how robust are those distinctions as a basis for further advocacy, scholarship, and policymaking?

In addressing these questions and the challenging terrain of the civil/criminal distinction, my argument proceeds in three Parts. In Part I, I address the concepts of criminal law exceptionalism and criminal law skepticism. I examine the long-standing treatment of criminal law as exceptional before introducing the increasingly skeptical literature on the desirability of criminal legal institutions as a response to social problems. I situate this literature alongside arguments for a “positive” abolitionist project and for more forms of non-criminal governance and authority. In Part II, I offer three specific case studies of criminal law exceptionalism—areas where some critics of the criminal system have embraced non-criminal alternatives that, I argue, might risk replicating or reinforcing some of the objectionable features of criminal law and its administration: (1) the continued enthusiasm for state civil and administrative approaches to social problems; (2) critiques of delegation to administrative “experts” in the criminal law realm from commentators who remain supportive of such delegations in non-criminal contexts; and (3) calls for employers, schools, and other non-criminal institutions to exercise disciplinary authority as a means of remedying harm and ensuring “accountability.” Finally, in Part III, I pivot to ask whether and to what extent the exceptions drawn in the previous Part are defensible or desirable. What vision of the state and the criminal system’s ills allows for such an exceptionalist project? And how sweeping or radical a project would one need to embrace in order to reject criminal law exceptionalism and to reject non-criminal forms of discipline and punishment?

  1. See generally Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631 (2020) [hereinafter Ristroph, Carceral State] (characterizing substantive criminal law classes as reflecting an uncritical, formalist vision of criminal law). ↑
  2. See, e.g., Jeffrie G. Murphy, “In the Penal Colony” and Why I Am Now Reluctant to Teach Criminal Law, 33 Crim. Just. Ethics 72, 76 (2014); Shaun Ossei-Owusu, Kangaroo Courts, 134 Harv. L. Rev. F. 200, 211 (2021); Ristroph, Carceral State, supra note 1. ↑
  3.  See, e.g., End the War on Black People, The Movement for Black Lives, http://web.archive.org/web/20200316230511/https://policy.m4bl.org/end-war-on-Black-peo​ple/ [https://perma.cc/U455-Y35M] (last visited Aug. 5, 2022) (“Until we achieve a world where cages are no longer used against our people we demand an immediate change in conditions and an end to all jails, detention centers, youth facilities and prisons as we know them.”); 1 The Red Nation, The Red Deal: Indigenous Action to Save Our Earth 12 (2020), http://therednation.org/wp-content/uploads/2020/04/Red-Deal_Part-I_End-The-Occupation-1.pdf [https://perma.cc/62AR-83YE] (“What Creates Crisis Cannot Solve It . . . . We draw from Black abolitionist traditions to call for divestment away from the caging, criminalizing, and harming of human beings . . . .”); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781 (2020) [hereinafter Akbar, Abolitionist Horizon]; Aya Gruber, Policing and “Bluelining”, 58 Hous. L. Rev. 867, 933 (2021) [hereinafter Gruber, “Bluelining”] (“[A]bolitionist ideology . . . is currently experiencing a renaissance in progressive scholarly circles.”); César Cuauhtémoc García Hernández, Abolishing Immigration Prisons, 97 B.U. L. Rev. 245 (2017); Douglas Husak, The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law, 23 New Crim. L. Rev. 27 (2020) (identifying and critiquing a trend of “criminal law skepticism”); Patrisse Cullors, Abolition and Reparations: Histories of Resistance, Transformative Justice, and Accountability, 132 Harv. L. Rev. 1684 (2019); Thomas Ward Frampton, The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics, 135 Harv. L. Rev. 2010 (2022); Kate Levine, Police Prosecutions and Punitive Instincts, 98 Wash. U. L. Rev. 997 (2021); Allegra M. McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1622 (2019) [hereinafter McLeod, Abolition Democracy]; Dorothy E. Roberts, Democratizing Criminal Law as an Abolitionist Project, 111 Nw. U. L. Rev. 1597, 1604–05 (2017). ↑
  4. How much agreement there actually is on what is wrong with the system, though, remains an open question. See generally Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 Mich. L. Rev. 259 (2018) [hereinafter Levin, Consensus Myth] (arguing that the “consensus” on “criminal justice reform” is largely illusory). See also infra Section III.D (examining these critiques). ↑
  5. See infra Section I.B. ↑
  6. To be clear, this turn is hardly unprecedented, and fundamental structural critiques of criminalization and the criminal system certainly are not new. See, e.g., Angela Y. Davis, Are Prisons Obsolete? (2003); Eugene V. Debs, Walls & Bars (Charles H. Kerr & Co. 1973) (1927); Thomas Mathiesen, The Politics of Abolition Revisited, at xv-xvi (2015) (explaining the need to republish the 1974 abolitionist text in light of contemporary trends in penal policy and activism); Máximo Langer, Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then, 134 Harv. L. Rev. F. 42 (2020) (tracking diverse strands of abolitionist thought internationally). ↑
  7. There are numerous accounts of what might constitute that “something else.” See, e.g., R.A. Duff, The Realm of Criminal Law 280–92 (2018); Fay Honey Knopp et al., Instead of Prisons: A Handbook for Abolitionists (1976). ↑
  8. And there’s no reason to think that there is a single answer—one way of understanding the metastasization of criminal law and punishment is the allure of a one-size-fits-all regulatory response. See Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 2 (2007) (describing a dominant model of governance in which “criminalization and cages [function] as catchall solutions to social problems”). ↑
  9. See infra Section I.A; see also F. Andrew Hessick & Carissa Byrne Hessick, Nondelegation and Criminal Law, 107 Va. L. Rev. 281, 300 (2021) (collecting sources); Donald Dripps, The Exclusivity of the Criminal Law: Toward a “Regulatory Model” of, or “Pathological Perspective” on, the Civil-Criminal Distinction, 7 J. Contemp. Legal Issues 199, 204 (1996) (arguing that criminal law is distinct from other areas of law in that it “connects the power of inflicting pain with the authority of moral judgment”). ↑
  10. Cf. Sandra G. Mayson, The Concept of Criminal Law, 14 Crim. L. & Phil. 447, 448 (2020) (“[N]otwithstanding the centrality of the question, there appears to be no clear consensus among either scholars or reformers about what differentiates criminal law from every other kind of law.”). ↑
  11. See Jamelia Morgan, Lawyering for Abolitionist Movements, 53 Conn. L. Rev. 605, 609 (2021) (“It would be an understatement to say that abolition is an ambitious and long-term project. Leading abolitionist theorist Ruth Wilson Gilmore captures this ambition in her famous quote, which, to paraphrase, is that to create an abolitionist society, abolitionists have to change one thing: everything.”). ↑
  12. Cf. Jonathan Simon, Rise of the Carceral State, 74 Soc. Rsch. 471, 482–96 (2007) [hereinafter Carceral State] (arguing that prisons historically have operated as reflections of dominant governance models). ↑
  13. See Mariame Kaba, We Do This ’Til We Free Us: Abolitionist Organizing and Transforming Justice 5 (Tamara K. Nopper ed., 2021) (“The [prison industrial complex] is linked in its logics and operation with all other systems . . . .”). ↑
  14. Cf. Mayson, supra note 10, at 461 (“A regulatory regime of coercive prevention would have an equally disparate impact on marginalized groups . . . .”). ↑
  15. See, e.g., Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice Thinking, in The New Criminal Justice Thinking 1, 1 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (“If we are to fix the current criminal system . . . we need a complete and nuanced understanding of what exactly this system is: What social and political institutions, what laws and policies, does it encompass?”); Kaba, supra note 13, at 5; Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families–and How Abolition Can Build a Safer World 25–26 (2022) [hereinafter Roberts, Torn Apart]; Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1490 (2016) (“Mass criminalization also enables police contact with African-Americans through the diffusion of criminal justice officials, norms, and strategies into the structure and organization of the welfare state.”); Barbara A. Fedders, The End of School Policing, 109 Calif. L. Rev. 1443 (2021); Eisha Jain, Understanding Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 161 (2017); see also Jamelia N. Morgan, Policing Marginality in Public Space, 81 Ohio St. L.J. 1045, 1046 (2020) (examining the harms that stem from “managing access to public space using criminal laws”); Dorothy Roberts, Opinion, Abolishing Policing Also Means Abolishing Family Regulation, Imprint (June 16, 2020, 5:26 AM), https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishing-fa​mily-regulation/44480 [https://perma.cc/7CLU-TWH3] (“[P]roposals [to defund the police] ignore how the misnamed ‘child welfare’ system, like the misnamed ‘criminal justice’ system, is designed to regulate and punish black and other marginalized people.”); Heather Schoenfeld, A Research Agenda on Reform: Penal Policy and Politics Across the States, 664 Annals Am. Acad. Pol. & Soc. Sci. 155, 157–58 (2016) (describing the current model of criminalized governance as “incorporat[ing] punitive responses to poverty, employment rights, and even young children’s behavior”); Noah D. Zatz, A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond, 39 Seattle U. L. Rev. 927, 929 (2016) (calling for an examination into the connection between the modern practice of offering work as an alternative to incarceration and peonage as used in the Jim Crow South).Increasingly prevalent arguments that the administration of criminal law can’t or shouldn’t be thought of as a “system” reflect this hesitancy about seeing a bounded, unified set of actors and institutions. See, e.g., Monica Bell, Stephanie Garlock & Alexander Nabavi-Noori, Toward A Demosprudence of Poverty, 69 Duke L.J. 1473, 1475–76 n.7 (2020) [hereinafter Bell et al., Demosprudence of Poverty]; Trevor George Gardner, Immigrant Sanctuary as the “Old Normal”: A Brief History of Police Federalism, 119 Colum. L. Rev. 1, 15 n.44 (2019); Bernard E. Harcourt, The Systems Fallacy: A Genealogy and Critique of Public Policy and Cost-Benefit Analysis, 47 J. Legal Stud. 419, 421–22 (2018); Sara Mayeux, The Idea of “The Criminal Justice System”, 45 Am. J. Crim. L. 55, 65 (2018); John F. Pfaff, Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth, 111 Mich. L. Rev. 1087, 1089 (2013). ↑
  16. Indeed, some commentators question whether the language of “mass incarceration” or the “carceral state” is misleading in its under-inclusivity. See, e.g., Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1804 (2012) (“[F]ocusing exclusively on ‘mass incarceration’ obscures the reality that most convicted persons are not sentenced to prison.” (footnote omitted)); Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 Wis. L. Rev. 321, 325 (arguing that the problem of “mass incarceration” is “better characterized as one of mass criminalization”). ↑
  17. Cf. Michel Foucault, Discipline and Punish 297 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (arguing that society contains a host of ostensibly non-penal institutions, “which, well beyond the frontiers of criminal law, constitute[] what one might call the carceral archipelago”). ↑
  18. See infra note 114 and accompanying text. ↑
  19. In this Article, I use “criminal system” or “criminal legal system” advisedly, mindful of increasingly prevalent academic arguments that the administration of criminal law hardly constitutes a “system.” See supra note 15 (collecting sources). ↑
  20. Here and throughout, I am aware that “the left” contains multitudes and that there always is a risk of potentially mis-ascribing positions or flattening out nuance when referring to such a large (and ill-defined) political category. Indeed, one of my goals in this Article is to help tease out different strands in the left anti-carceral coalition to highlight the way in which different postures toward institutions of criminal law might reveal different postures towards the state, and vice versa. ↑
  21. See Benjamin Levin, Imagining the Progressive Prosecutor, 105 Minn. L. Rev. 1415 (2021); Benjamin Levin, Mens Rea Reform and Its Discontents, 109 J. Crim. L. & Criminology 491 (2019); Benjamin Levin, Wage Theft Criminalization, 54 U.C. Davis L. Rev. 1429 (2021). ↑
  22. See, e.g., George F. Will, Opinion, Eric Garner, Criminalized to Death, Wash. Post (Dec. 10, 2014), https://www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11e4-9f38-95a187e4c1f7_story.html [https://perma.cc/​TY73-3PPQ]; Donald A. Dripps, Why Gideon Failed: Politics and Feedback Loops in the Reform of Criminal Justice, 70 Wash. & Lee L. Rev. 883, 919 (2013) (“An important strand of contemporary conservative thought indeed sees the modern criminal justice system as big government with its usual defects.”); Jonathan Simon, Law’s Violence, the Strong State, and the Crisis of Mass Imprisonment (for Stuart Hall), 49 Wake Forest L. Rev. 649, 670 (2014) [hereinafter Simon, Law’s Violence] (“The carceral state, it turns out, can also be criticized as a form of big government.”). ↑
  23. In focusing on left critics of the carceral state, I don’t mean to suggest that there aren’t significant tensions and contradictions on the right when it comes to criminal policies. Indeed, the support for criminal law among purportedly “anti-regulatory” commentators and lawmakers has been a hallmark of U.S. neoliberalism. See, e.g., Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order 40–41 (2011) [hereinafter Harcourt, Illusion of Free Markets]. And right-leaning anti-criminalization politics have received much-deserved skeptical treatments. See, e.g., Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 7–8 (2015); Levin, Consensus Myth, supra note 4. ↑
  24. On different possible understandings of “criminal law exceptionalism,” see generally Alice Ristroph, The Wages of Criminal Law Exceptionalism, Crim. L. & Phil. (Oct. 12, 2021) [hereinafter Ristroph, Wages of Criminal Law Exceptionalism], https://link.springer.com/artic​le/10.1007/s11572-021-09613-5 [https://perma.cc/7T3H-VY4K]. This Article owes a great debt to Ristroph’s characterization and critiques of traditional criminal law exceptionalism. See infra Section I.A. ↑
  25. At the very least, I think it’s important to flesh out how we should go about assessing “far enough.” ↑
  26. See infra Section III.D. ↑

  27. See infra Section III.D. ↑

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