Issue 6

Municipal Immunity

Although qualified immunity has taken center stage in recent debates about police misconduct and paths to reform, this Article focuses on another doctrine that has been largely overlooked yet merits at least equal attention—the standards for holding local governments liable for constitutional violations of their officers (also referred to as Monell doctrine, in reference to the Supreme Court case that first recognized the right to sue municipalities under Section 1983).

This Article reports the findings of the largest and most comprehensive study to date examining and comparing the challenges of qualified immunity and Monell doctrine in almost 1,200 police misconduct lawsuits filed in five federal districts across the country. I find that it is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity. In my dataset, local governments challenged Monell claims more often than individual defendants raised qualified immunity—at both the motion to dismiss and summary judgment stages—and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity. Plaintiffs regularly abandoned their Monell claims against local governments during the course of litigation as well. Very few Monell claims made it to trial; even fewer succeeded. If popular commentary has overstated the harms of qualified immunity doctrine, it has understated the challenges of Monell.

To ensure that people are compensated when their constitutional rights are violated, local governments should be held vicariously liable for their officers’ constitutional violations. Strengthening the deterrent effect of Section 1983 suits on officers and local governments is a more complicated task, but a package of state and local reforms I outline holds promise. These proposed reforms may be even more important than ending qualified immunity to our system of constitutional remediation; they may also be more palatable to lawmakers and law enforcement officials who have thus far opposed ending qualified immunity. This may be one of those rare instances when the most pressing reform—ending Monell—is also the most pragmatic.

Introduction

Qualified immunity has taken center stage in recent debates about police misconduct and paths to reform. In the weeks after George Floyd’s murder in May 2020, people held handwritten signs in protests across the country, calling for the defense’s abolition.1 1.See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/‌qualified-immunity.html [https://perma.cc/PS4C-ZQSX]; Kimberly Kindy, Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Nearly Every Bill., Wash. Post (Oct. 7, 2021, 6:00 AM), https://www.washingtonpost.com/politics/‌qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1‌-42a8138f132a_story.html [https://perma.cc/4QUY-WC9M].Show More Eliminating qualified immunity quickly became a key component of proposed legislation introduced in Congress and state legislatures to shore up civil rights protections.2 2.See, e.g., Madeleine Carlisle, The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know, Time (June 3, 2021, 6:35 PM), https://time.com/‌6061624/what-is-qualified-immunity/ [https://perma.cc/GCB4-72PG] (describing Congress’s George Floyd Justice in Policing Act); Kindy, supranote 1 (describing state legislative efforts).Show More Following the January 2023 killing of Tyre Nichols by Memphis police officers,3 3.Jonathan Franklin & Emma Bowman, What We Know About the Killing of Tyre Nichols, NPR (Jan. 28, 2023, 4:50 PM), https://www.npr.org/2023/01/28/1151504967/tyre-nichols-memphis-police-body-cam-video [https://perma.cc/JGR2-D7Z2].Show More calls to end qualified immunity resumed with comparable passion.4 4.See, e.g., Rep. Justin Amash (@justinamash), Twitter (Jan. 28, 2023, 10:58 AM), https://twitter.com/justinamash/status/1619364385214066688 [https://perma.cc/V97Z-Z3‌SA] (“Reintroduce and pass my tripartisan legislation to end qualified immunity.”); Rep. Ilhan Omar (@IlhanMN), Twitter (Jan. 27, 2023, 9:12 PM), https://twitter.com/IlhanMN/status/‌1619156319923212288 [https://perma.cc/6EQ7-75VM] (“End Qualified Immunity!”).Show More

Qualified immunity is a deserving target of criticism—it shields individual officers from civil liability, even when they have violated the Constitution, simply because there is no prior court opinion holding unconstitutional nearly identical facts.5 5.See, e.g., Carlisle, supra note 2; Joanna C. Schwartz, Suing Police for Abuse Is Nearly Impossible. The Supreme Court Can Fix That., Wash. Post (June 3, 2020, 2:17 PM), https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-co‌urt-immunity/ [https://perma.cc/TA4E-VN5H].Show More And although the U.S. Supreme Court has justified qualified immunity as necessary to protect officers from the costs and burdens of litigation in “insubstantial” cases,6 6.Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982).Show More available evidence makes clear that the doctrine is neither necessary nor well-suited to achieve these policy goals.7 7.See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60–64 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (finding, based on a review of 1,183 police misconduct cases, that qualified immunity leads to the dismissal of less than 4% of civil rights cases, undermining the role of qualified immunity as a protection against the burdens of discovery and trial, and may actually increase litigation costs); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–43 (2014) [hereinafter Schwartz, Police Indemnification] (showing that officers virtually never contribute to settlements and judgments against them, limiting the need for qualified immunity to protect officers from financial liability).Show More But there is another legal doctrine that has been largely overlooked8 8.For a few exceptions, see Mark C. Niles, Here’s a More Important Reform than Ending Qualified Immunity,LawFare (May 18, 2021, 2:13 PM), https://www.lawfareblog.com/heres-more-important-reform-ending-qualified-immunity [https://perma.cc/84VD-Z84Y]; Orion de Nevers, A Dubious Legal Doctrine Protects Cities from Lawsuits over Police Brutality, Slate (June 2, 2020, 2:16 PM), https://slate.com/news-and-politics/2020/06/monell-supreme-court-qualified-immunity.html [https://perma.cc/PM6B-GM3B]. Municipal liability has been a more sustained focus of study and criticism among scholars and advocates. For examples of this research and commentary, see infraSection I.C.Show More in the current debate about civil rights enforcement, yet merits comparable attention and critique—the standard for holding local governments liable for the constitutional violations of their officers.

In 1978, in Monell v. Department of Social Services, the Supreme Court first ruled that local governments could be sued under 42 U.S.C. § 1983 for constitutional violations by their employees.9 9.436 U.S. 658, 663 (1978).Show More But the Court ruled that local governments could not be held vicariously liable for their employees’ constitutional violations—as private employers are for the torts of their employees.10 10.Id. at 691–95.Show More Instead, a plaintiff must prove that the local government had an unlawful policy or custom that caused their employee to violate the Constitution.11 11.Id.at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”).Show More

Monell, and the Supreme Court’s and lower courts’ decisions that have developed the contours of Monell doctrine over the past forty-five years, have inspired harsh critique.12 12.These critiques, along with an overview of the history of Monell doctrine and its contours, are outlined in Part I.Show More Some argue that the Court’s rejection of respondeat superior liability in its Monell decision was based on a misunderstanding of the legal landscape in 1871, when Section 1983 became law, as well as the statute’s legislative history.13 13.See infranote 89 and accompanying text.Show More Commentators criticize the various theories that have emerged for proving municipal liability under Monell as exceedingly complex and indeterminate—a “maze,” in Karen Blum’s view.14 14.Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 914 (2015); see also infranotes 90–91 and accompanying text (describing critiques of Monell doctrine’s complexity).Show More And many contend that Monell’s standards are so difficult for plaintiffs to satisfy that municipal liability is “practically unavailable to litigants.”15 15.Brian J. Serr, Turning Section 1983’s Protection of Civil Rights into an Attractive Nuisance: Extra-Textual Barriers to Municipal Liability Under Monell, 35 Ga. L. Rev. 881, 883 (2001); see also infra notes 92–96 and accompanying text (describing the prevailing view that it is nearly impossible for plaintiffs to prevail on Monell claims).Show More

Monell’s historical critique is well documented. The critique of Monell’s complex and indeterminate standards is self-evident. Yet, the claim that it is near-impossible to prevail on Monell claims is based on little more than anecdote and supposition. Over the past several years, we have come to learn a great deal about how qualified immunity works on the ground—how it influences attorneys’ decisions about whether to take a case;16 16.See generally Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file Bivens claims against federal officials); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. 1101 (2020) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file § 1983 claims against law enforcement defendants).Show More the frequency with which the defense is raised, granted by courts, and is dispositive;17 17.See generally Schwartz, How Qualified Immunity Fails, supranote 7 (reporting these findings).Show More the role that it plays at trial;18 18.See Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2068 (2018) (finding that “juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense,” but that “when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial”).Show More and the success of qualified immunity on appeal.19 19.See generally Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55 (2016) (measuring variation among circuit judges in their assessment of qualified immunity appeals); Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment (Cardozo L. Sch. Fac. Rsch. Paper No. 634, 2021), https://ssrn.com/abstract‌=3798024 [https://perma.cc/WJR2-KWVZ] (finding that appellate courts reverse decisions denying qualified immunity far more often than they reverse decisions granting qualified immunity).Show More But we have comparably little understanding of how federal constitutional claims against local governments fare in court.20 20.For important research about municipal liability claims that is a clear exception to this general observation, see Nancy Leong, Municipal Failures, 108 Cornell L. Rev. 345, 380 (2023) [hereinafter Leong, Municipal Failures] (examining the success of failure-to-supervise claims on appeal and arguing that such claims are often overlooked by attorneys but successful in court); Nancy Leong, Civil Rights Liability for Bad Hiring 1, 46–49 (Aug. 8, 2023) (unpublished manuscript) (on file with author) (examining the difficulty of proving failure-to-screen claims). See generally Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures inMonell Litigation, Emory L.J. (forthcoming 2024), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=4378738 [https://perma.cc/MK7R-PZAX] (examining widespread deficiencies in complaints’ Monell allegations).Show More How often do plaintiffs sue local governments for the constitutional violations of their officers? How often do local governments seek to dismiss these claims before and after discovery? How often do courts grant governments’ motions? How often do plaintiffs abandon their Monell claims?

In this Article, I begin to fill these critically important gaps. In 2017, I published a study that analyzed the federal dockets of 1,183 lawsuits filed against law enforcement defendants over a two-year period in five federal district courts across the country to better understand the role qualified immunity actually plays in police misconduct cases.21 21.See generally Schwartz, How Qualified Immunity Fails, supra note 7 (finding that fewer than 4% of the police misconduct cases filed were dismissed on qualified immunity grounds, offering possible explanations for these findings, and considering their implications for qualified immunity doctrine’s goals).Show More In this Article, I examine those same 1,183 federal case dockets to understand how Monell claims fared in these lawsuits.

In my 2017 study, I concluded that qualified immunity doctrine had a more nuanced impact on police misconduct cases than is suggested in court opinions and critical commentary.22 22.See id. at 9–11; see also Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 316–17 (2020) [hereinafter Schwartz, After Qualified Immunity] (offering several predictions about how constitutional litigation would function in a world without qualified immunity).Show More I found that qualified immunity doctrine increases the burdens and time spent on civil rights cases for plaintiffs’ attorneys, and likely discourages lawyers from taking some civil rights cases.23 23.See Schwartz, How Qualified Immunity Fails, supra note 7, at 50–51 (arguing that qualified immunity increases the costs and time necessary to litigate civil rights cases, and may discourage attorneys from accepting civil rights cases); Schwartz, After Qualified Immunity, supranote 22, at 338–51 (same).Show More But qualified immunity is raised by defendants and granted by courts less frequently than is suggested in popular critiques, and is the reason a relatively small percentage of civil rights cases are dismissed.24 24.See Schwartz, How Qualified Immunity Fails, supranote 7, at 48–49 (describing these findings).Show More

Having reviewed these same cases to understand how constitutional claims against local governments progress in federal courts, I find that the doctrine makes it extremely difficult for plaintiffs to prevail on Monell claims challenging police policies and practices. If popular commentary has overstated the harms of qualified immunity doctrine, it has understated the challenges of Monell.

It is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity when raised by individual government defendants.25 25.I outline these findings in Part II.Show More In my dataset, local governments challenged municipal liability claims more often than individual defendants raised qualified immunity—at both the motion to dismiss and summary judgment stages—and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity. Plaintiffs regularly abandoned their Monell claims against local governments during the course of litigation as well. Very few Monell claims made it to trial; even fewer succeeded.

Careful study of the dockets and decisions in my dataset suggests several reasons that it might be so difficult to plead and prove Monell claims.26 26.I describe these possible explanations for my findings in Part III.Show More First, the plausibility standard articulated by the Supreme Court in Iqbal and Twombly makes it particularly challenging for plaintiffs to survive motions to dismiss;27 27.See infra notes 121–26 (outlining findings in the dataset); infra notes 153–57 and accompanying text (presenting the plausibility standard theory).Show More in many cases, plaintiffs cannot find the type of evidence that would support their Monell claims without formal discovery. Second, at summary judgment, plaintiffs have a heavy burden—in addition to proving that their constitutional rights were violated, they must come forth with evidence of an unconstitutional policy or a pattern of prior misconduct that suggests an unwritten policy, the policymaker’s deliberate indifference to that prior misconduct, and proof that that deliberate indifference caused the constitutional violation.28 28.See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989).Show More Even when plaintiffs managed to offer proof to support each of these elements, courts in my dataset found that the evidence was not sufficient to create a material factual dispute. Third, Monell claims are expensive, even at the pleadings stage, and these costs may lead plaintiffs to abandon their Monell claims—especially if the named officers are likely to be indemnified. Fourth, Monell doctrine is unsettled;29 29.See, e.g., Michael Avery, David Rudovsky, Karen M. Blum & Jennifer Laurin, Police Misconduct Law and Litigation § 4:15 (3d ed. 2022) (“Despite the resolution of several principal questions in this area by the Supreme Court, one should still expect both factual and legal issues to be hotly contested where municipal liability claims are made.”); see also infranotes 199–201 and accompanying text (describing intra-circuit disagreement about how to apply Iqbal’s “plausibility” pleading standard to Monell claims).Show More multiple open questions lead courts to apply widely varying standards, even in the same circuit, which likely encourages defendants to file more motions and creates greater uncertainties for plaintiffs evaluating the costs and benefits of pursuing a Monell claim.

Having explored the challenges associated with bringing Monell claims, I next consider the extent to which these challenges frustrate our system of civil rights remediation.30 30.I set out these challenges in Part IV.Show More Some commentators—myself included—have observed that the difficulty of prevailing on Monell claims may matter little because individual officers can be sued and are almost always indemnified by their government employers.31 31.See infranote 205 and accompanying text.Show More Further reflection and research has led me to reconsider this view. It is true that when a plaintiff prevails against an officer and the local government indemnifies, she effectively recovers from the city, even if her Monell claim fails. It is also true that, as I found in a prior study, local governments—not officers—pay 99.98% of the money received by plaintiffs in police misconduct cases.32 32.See generally Schwartz, Police Indemnification, supranote 7, at 890 (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.”).Show More But, despite the ubiquity of indemnification, there are multiple ways in which municipal immunity enlarges the schism between right and remedy. If an officer who violated a person’s constitutional rights is denied indemnification, or granted qualified immunity, or cannot be identified by name, a Monell claim against the local government can be the only opportunity to recover. Monell claims can also afford the only way to win a judgment against a local government that may create political pressure to change, and secure injunctive relief.

Section 1983 was enacted more than 150 years ago as a means to compensate people whose constitutional rights have been violated and deter future misconduct.33 33.See Monroe v. Pape, 365 U.S. 167, 171 (1961) (describing the historical context of Section 1983).Show More Monell doctrine in its current form undermines both of these values. To ensure that people are compensated, local governments should be held vicariously liable when their officers violate the Constitution. Strengthening the deterrent effect of Section 1983 suits on officers and local governments is a more complicated task, but a package of state and local reforms I outline holds promise.34 34.These proposals are described in further detail inPart V.Show More

My recommendations, although ambitious, are not merely academic musings. Indeed, these types of changes to municipal liability doctrine may actually be more politically palatable than are proposals to do away with qualified immunity. Critics of qualified immunity reform rest their opposition on the (baseless) concern that officers will be bankrupted for reasonable mistakes and “leave the profession in droves”;35 35.See, e.g., Kindy, supra note 1 (“[State legislative efforts to limit qualified immunity] failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.”).Show More vicarious liability for local governments would eliminate these concerns about officers’ bank accounts and motivations.36 36.For bills introduced by Congress and state legislatures, and enacted in New Mexico, that would make local governments vicariously liable for constitutional violations by their officers, see infranotes 261–64 and accompanying text.Show More Perhaps for this reason, Republican Senators Tim Scott and Lindsey Graham, who are staunchly opposed to any provision ending qualified immunity, have each signaled that they favor holding local governments liable for their officers’ constitutional violations.37 37.See Billy Binion, Tim Scott Is Proposing a Major Reform to Qualified Immunity, Reason (Apr. 22, 2021, 12:24 PM), https://reason.com/2021/04/22/tim-scott-is-proposing-a-major-reform-to-qualified-immunity/ [https://perma.cc/Q2QA-D6ZE] (describing Senator Scott’s proposal to create vicarious liability during police reform legislation negotiations after George Floyd’s death); Janice Hisle, In Wake of Tyre Nichols’s Death, Sen. Lindsey Graham Suggests Policing Reform Compromise, Epoch Times (Jan. 31, 2023), https://www.theepochtimes.‌com/in-wake-of-tyre-nichols-death-sen-lindsey-graham-suggests-policing-reform-compromi‌se_5020259.html [https://perma.cc/5ZW8-LDEM] (describing Senator Graham’s suggestion that police departments be held liable following the killing of Tyre Nichols). For articles describing Senator Scott’s and Senator Graham’s opposition to qualified immunity reform, see Sahil Kapur & Scott Wong, Senators Aim to Revive Police Reform Talks but Face Major Hurdles, NBC News (Jan. 30, 2023, 8:58 PM), https://www.nbcnews.com/politics/congress/‌senators-aim-revive-police-reform-talks-face-major-hurdles-rcna68171 [https://perma.cc/R5‌ZQ-RHET] (“I think qualified immunity should stay in place for individual officers, but I’ve always been of the view that departments need to be held accountable.” (quoting Senator Graham)); Melissa Quinn, Tim Scott Says Ending Qualified Immunity Is “Poison Pill” in Police Reform Bill, CBS News (June 14, 2020, 9:48 AM), https://www.cbsnews.com/news/‌tim-scott-police-reform-bill-qualified-immunity-face-the-nation/ [https://perma.cc/L9JA-7W‌DN] (“From the Republican perspective, and the president has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side.” (quoting Senator Scott)).Show More

The injustices of qualified immunity have been a worthy focus of reform efforts in recent years. But vicarious liability for local governments is an equally important goal—and a more achievable one. Alongside handwritten signs demanding an end to qualified immunity, it is time to start raising signs reading “End Monell.”

  1.  See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/‌qualified-immunity.html [https://perma.cc/PS4C-ZQSX]; Kimberly Kindy, Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Nearly Every Bill., Wash. Post (Oct. 7, 2021, 6:00 AM), https://www.washingtonpost.com/politics/‌qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1‌-42a8138f132a_story.html [https://perma.cc/4QUY-WC9M]. ↑
  2.  See, e.g., Madeleine Carlisle, The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know, Time (June 3, 2021, 6:35 PM), https://time.com/‌6061624/what-is-qualified-immunity/ [https://perma.cc/GCB4-72PG] (describing Congress’s George Floyd Justice in Policing Act); Kindy, supra note 1 (describing state legislative efforts). ↑
  3.  Jonathan Franklin & Emma Bowman, What We Know About the Killing of Tyre Nichols, NPR (Jan. 28, 2023, 4:50 PM), https://www.npr.org/2023/01/28/1151504967/tyre-nichols-memphis-police-body-cam-video [https://perma.cc/JGR2-D7Z2]. ↑
  4.  See, e.g., Rep. Justin Amash (@justinamash), Twitter (Jan. 28, 2023, 10:58 AM), https://twitter.com/justinamash/status/1619364385214066688 [https://perma.cc/V97Z-Z3‌SA] (“Reintroduce and pass my tripartisan legislation to end qualified immunity.”); Rep. Ilhan Omar (@IlhanMN), Twitter (Jan. 27, 2023, 9:12 PM), https://twitter.com/IlhanMN/status/‌1619156319923212288 [https://perma.cc/6EQ7-75VM] (“End Qualified Immunity!”). ↑
  5.  See, e.g., Carlisle, supra note 2; Joanna C. Schwartz, Suing Police for Abuse Is Nearly Impossible. The Supreme Court Can Fix That., Wash. Post (June 3, 2020, 2:17 PM), https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-co‌urt-immunity/ [https://perma.cc/TA4E-VN5H]. ↑
  6.  Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982). ↑
  7.  See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60–64 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (finding, based on a review of 1,183 police misconduct cases, that qualified immunity leads to the dismissal of less than 4% of civil rights cases, undermining the role of qualified immunity as a protection against the burdens of discovery and trial, and may actually increase litigation costs); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–43 (2014) [hereinafter Schwartz, Police Indemnification] (showing that officers virtually never contribute to settlements and judgments against them, limiting the need for qualified immunity to protect officers from financial liability). ↑
  8.  For a few exceptions, see Mark C. Niles, Here’s a More Important Reform than Ending Qualified Immunity, LawFare (May 18, 2021, 2:13 PM), https://www.lawfareblog.com/heres-more-important-reform-ending-qualified-immunity [https://perma.cc/84VD-Z84Y]; Orion de Nevers, A Dubious Legal Doctrine Protects Cities from Lawsuits over Police Brutality, Slate (June 2, 2020, 2:16 PM), https://slate.com/news-and-politics/2020/06/monell-supreme-court-qualified-immunity.html [https://perma.cc/PM6B-GM3B]. Municipal liability has been a more sustained focus of study and criticism among scholars and advocates. For examples of this research and commentary, see infra Section I.C. ↑
  9.  436 U.S. 658, 663 (1978). ↑
  10.  Id. at 691–95. ↑
  11.  Id. at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). ↑
  12.  These critiques, along with an overview of the history of Monell doctrine and its contours, are outlined in Part I. ↑
  13.  See infra note 89 and accompanying text. ↑
  14.  Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 914 (2015); see also infra notes 90–91 and accompanying text (describing critiques of Monell doctrine’s complexity). ↑
  15.  Brian J. Serr, Turning Section 1983’s Protection of Civil Rights into an Attractive Nuisance: Extra-Textual Barriers to Municipal Liability Under Monell, 35 Ga. L. Rev. 881, 883 (2001); see also infra notes 92–96 and accompanying text (describing the prevailing view that it is nearly impossible for plaintiffs to prevail on Monell claims). ↑
  16.  See generally Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file Bivens claims against federal officials); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. 1101 (2020) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file § 1983 claims against law enforcement defendants). ↑
  17.  See generally Schwartz, How Qualified Immunity Fails, supra note 7 (reporting these findings). ↑
  18.  See Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2068 (2018) (finding that “juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense,” but that “when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial”). ↑
  19.  See generally Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55 (2016) (measuring variation among circuit judges in their assessment of qualified immunity appeals); Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment (Cardozo L. Sch. Fac. Rsch. Paper No. 634, 2021), https://ssrn.com/abstract‌=3798024 [https://perma.cc/WJR2-KWVZ] (finding that appellate courts reverse decisions denying qualified immunity far more often than they reverse decisions granting qualified immunity). ↑
  20.  For important research about municipal liability claims that is a clear exception to this general observation, see Nancy Leong, Municipal Failures, 108 Cornell L. Rev. 345, 380 (2023) [hereinafter Leong, Municipal Failures] (examining the success of failure-to-supervise claims on appeal and arguing that such claims are often overlooked by attorneys but successful in court); Nancy Leong, Civil Rights Liability for Bad Hiring 1, 46–49 (Aug. 8, 2023) (unpublished manuscript) (on file with author) (examining the difficulty of proving failure-to-screen claims). See generally Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures in Monell Litigation, Emory L.J. (forthcoming 2024), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=4378738 [https://perma.cc/MK7R-PZAX] (examining widespread deficiencies in complaints’ Monell allegations). ↑
  21.  See generally Schwartz, How Qualified Immunity Fails, supra note 7 (finding that fewer than 4% of the police misconduct cases filed were dismissed on qualified immunity grounds, offering possible explanations for these findings, and considering their implications for qualified immunity doctrine’s goals). ↑
  22.  See id. at 9–11; see also Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 316–17 (2020) [hereinafter Schwartz, After Qualified Immunity] (offering several predictions about how constitutional litigation would function in a world without qualified immunity). ↑
  23.  See Schwartz, How Qualified Immunity Fails, supra note 7, at 50–51 (arguing that qualified immunity increases the costs and time necessary to litigate civil rights cases, and may discourage attorneys from accepting civil rights cases); Schwartz, After Qualified Immunity, supra note 22, at 338–51 (same). ↑
  24.  See Schwartz, How Qualified Immunity Fails, supra note 7, at 48–49 (describing these findings). ↑
  25.  I outline these findings in Part II. ↑
  26.  I describe these possible explanations for my findings in Part III. ↑
  27.  See infra notes 121–26 (outlining findings in the dataset); infra notes 153–57 and accompanying text (presenting the plausibility standard theory). ↑
  28.  See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989). ↑
  29.  See, e.g., Michael Avery, David Rudovsky, Karen M. Blum & Jennifer Laurin, Police Misconduct Law and Litigation § 4:15 (3d ed. 2022) (“Despite the resolution of several principal questions in this area by the Supreme Court, one should still expect both factual and legal issues to be hotly contested where municipal liability claims are made.”); see also infra notes 199–201 and accompanying text (describing intra-circuit disagreement about how to apply Iqbal’s “plausibility” pleading standard to Monell claims). ↑
  30.  I set out these challenges in Part IV. ↑
  31.  See infra note 205 and accompanying text. ↑
  32.  See generally Schwartz, Police Indemnification, supra note 7, at 890 (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.”). ↑
  33.  See Monroe v. Pape, 365 U.S. 167, 171 (1961) (describing the historical context of Section 1983). ↑
  34.  These proposals are described in further detail in Part V. ↑
  35.  See, e.g., Kindy, supra note 1 (“[State legislative efforts to limit qualified immunity] failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.”). ↑
  36.  For bills introduced by Congress and state legislatures, and enacted in New Mexico, that would make local governments vicariously liable for constitutional violations by their officers, see infra notes 261–64 and accompanying text. ↑

  37.  See Billy Binion, Tim Scott Is Proposing a Major Reform to Qualified Immunity, Reason (Apr. 22, 2021, 12:24 PM), https://reason.com/2021/04/22/tim-scott-is-proposing-a-major-reform-to-qualified-immunity/ [https://perma.cc/Q2QA-D6ZE] (describing Senator Scott’s proposal to create vicarious liability during police reform legislation negotiations after George Floyd’s death); Janice Hisle, In Wake of Tyre Nichols’s Death, Sen. Lindsey Graham Suggests Policing Reform Compromise, Epoch Times (Jan. 31, 2023), https://www.theepochtimes.‌com/in-wake-of-tyre-nichols-death-sen-lindsey-graham-suggests-policing-reform-compromi‌se_5020259.html [https://perma.cc/5ZW8-LDEM] (describing Senator Graham’s suggestion that police departments be held liable following the killing of Tyre Nichols). For articles describing Senator Scott’s and Senator Graham’s opposition to qualified immunity reform, see Sahil Kapur & Scott Wong, Senators Aim to Revive Police Reform Talks but Face Major Hurdles, NBC News (Jan. 30, 2023, 8:58 PM), https://www.nbcnews.com/politics/congress/‌senators-aim-revive-police-reform-talks-face-major-hurdles-rcna68171 [https://perma.cc/R5‌ZQ-RHET] (“I think qualified immunity should stay in place for individual officers, but I’ve always been of the view that departments need to be held accountable.” (quoting Senator Graham)); Melissa Quinn, Tim Scott Says Ending Qualified Immunity Is “Poison Pill” in Police Reform Bill, CBS News (June 14, 2020, 9:48 AM), https://www.cbsnews.com/news/‌tim-scott-police-reform-bill-qualified-immunity-face-the-nation/ [https://perma.cc/L9JA-7W‌DN] (“From the Republican perspective, and the president has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side.” (quoting Senator Scott)). ↑

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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