Issue 7

On Rawlsian Contractualism and the Private Law

Introduction: Paradigm Shift and the Rejection of the Conventional View

Shifts in academic paradigms are rare. Still, it was not long ago that the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. This was thought to be true, although for different reasons, in both philosophical and economic accounts of private law. The question was, for example, whether the law of contract and tort is properly governed by the values of autonomy and corrective justice or by distributive concerns instead. The conventional, indeed, the nearly universal view of Rawlsianism—the overwhelmingly dominant theory of liberalism and distributive justice—was that the private law lies beyond the scope of Rawls’s two principles of justice.1 1.See, e.g., Bruce A. Ackerman, Social Justice in the Liberal State 195 (1980); David Lyons, Ethics and the Rule of Law 131–32 (1984) (asserting “the principles of justice” “do not apply to private arrangements and transactions”); Anthony T. Kronman, Contract Law and Distributive Justice, 89 Yale L.J. 472, 474, 477 (1980) (noting the “unconcern with the distributive consequences of . . . private arrangements”).Show More

Simply put, for Rawlsianism, the private law was not thought to be the province of distributive concerns. In more academic terms, the private law is not properly understood to be subject to Rawls’s range-limited principles of justice. In this conventional view, the private law is not part of what Rawls describes as “the basic structure of society,” which is roughly limited to basic constitutional liberties and taxation and transfer. This view invites the conclusion that Rawlsian political philosophy—despite its lexically ordered, distributive demand that economic institutions are to be arranged to the maximal benefit of the least well-off—is stunningly neutral with respect to the economic arrangements and ordering of the private law. This thinking led to the conclusion that the private law, if it is to exist, may be justified by values or principles other than Rawls’s lexically ordered principles of justice, whether wealth-maximization, autonomy, or pre-conceived or even pre-political notions of property entitlement.2 2.Kevin A. Kordana & David H. Tabachnick, Rawls and Contract Law, 73 Geo. Wash. L. Rev. 598, 599–600 (2005) [hereinafter Kordana & Tabachnick, Rawls & Contract].Show More

At the same time, the dominant view in law and economics has been that the private law should be sanitized of egalitarian or equity-oriented values.3 3.Louis Kaplow & Steven Shavell, Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income, 23 J. Legal Stud. 667, 667–69 (1994).Show More The seductive idea was that any desired egalitarian moves could be achieved more efficiently through systems of income taxation and transfer than through any egalitarian alterations in private law rules. The conclusion was that the private law should be constructed to maximize wealth (e.g., optimal deterrence in tort), leaving equity-oriented demands for the system of income taxation and transfer.4 4.Id.Show More The argument’s invited conclusion was that any egalitarian (i.e., non-wealth-maximizing) adjustments to private law rules are inefficient, even if well-intentioned, private law constructions. If one conjoins the conclusions of both arguments, even a Rawlsian arguably ought to adopt the wealth maximizing conception of the private law.

Our early work, arguing against the conventional view, lead to a sustained analysis of this law and economics argument as well.5 5.David Blankfein-Tabachnick & Kevin A. Kordana, Kaplow and Shavell and the Priority of Income Taxation and Transfer, 69 Hastings L.J. 1 (2017). In outlining what he terms the three most crucial scholarly “caveats” to Kaplow and Shavell’s argument, Guttentag writes,A second caveat to the double-distortion presumption has to do with property rights. . . . Blankfein-Tabachnick and Kordana argue that taking property rights as a given is deeply problematic for the double-distortion presumption because property rights themselves are a creation of the legal system. Moreover, property rights have significant effects on the distribution of income and wealth.Michael D. Guttentag, Law, Taxes, Inequality, and Surplus, 102 B.U. L. Rev. 1329, 1336–37 (2022).Show More We have argued that there is an “entitlement” flaw in both conventional approaches.6 6.Blankfein-Tabachnick & Kordana, supra note 5, at 8; Kevin A. Kordana & David H. Tabachnick, Taxation, the Private Law, and Distributive Justice, 23 Soc. Phil. & Pol’y 142, 163 (2006) (“Kaplow and Shavell appear to assume the existence of an underlying system of propertyownership and free markets. [The] issue, however, is the very question of the form that property rules should take; that is, we are interested in the question of whether the equity-oriented values that differing theorists hold are best met through tax and transfer, or through (in part) the rules of property law. Thus, it is not clear that Kaplow and Shavell’s discussion, which compares tax and transfer to a tort rule (in isolation) and concludes that tax and transfer is superior in terms of economic efficiency, would (also) apply to the question of the underlying set of property rules.”).Show More Despite well-entrenched views on both sides, our objection has been well-received,7 7.Kordana & Tabachnick, Rawls & Contract, supra note 2, at 632 (“Our conclusions are bold. . . . [C]ontrary to the conventionally held narrow conception, contract law is within the basic structure . . . [and] the door is open for a deeper understanding of the role that private law plays in Rawlsian political philosophy—it is no longer accurate to believe that Rawlsianism is silent on matters of contract and private ordering . . . .”). Shapiro, for example, notes the similarity between our position in Kordana & Tabachnick, Rawls & Contract, supra note 2, and the recent scholarship, aptly drawing conclusions from the perspective of the new paradigm, taking its baseline as given. Matthew A. Shapiro, Distributing Civil Justice, 109 Geo. L.J. 1473, 1531 (2021). “Rawls’s theory thus does not defuse the conflicts between distributive justice and the liberal state’s other roles so much as deny them, by assigning distributive justice effective, if not formal, priority over other imperatives.” Id. at 1532. He then contrasts the new baseline with that of the former “conventional” view, ably recognizing the conflict within that view, and holding that it is “[o]nly by diluting the requirements of distributive justice” that one might “manage to harmonize them with [backward-looking or deontic] dispute resolution and rights enforcement.” Id. at 1533.Show More and change is upon the legal academy. A wide range of scholars have begun to reject these two conventional views.8 8.See, e.g., Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, H.L.A. Hart Memorial Lecture (May 2014), in 35 Oxford J. Legal Stud. 213, 233 (2015); Samuel Freeman, Liberalism and Distributive Justice 168, 192–93 (2018) (arguing Rawls’s principles apply to the private law); Richard L. Revesz, Regulation and Distribution, 93 N.Y.U. L. Rev. 1489, 1518 (2018) (asserting distributional concerns, not just wealth maximization, should play a broader role in regulation).Show More But in our view, scholars have not always fully recognized what we take to be the full ramifications of the private law being constructed by distributive principles.9 9.E.g., Arthur Ripstein, Private Wrongs 291 (2016); Freeman, supra note 8, at 185; Zachary Liscow, Note, Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency, 123 Yale L.J. 2478, 2486–87 (2014).Show More

As we say, academic paradigm shifts are rare; being at the center of one is rarer still. We are honored that the Virginia Law Review has provided us an opportunity to continue the dialogue that proceeds at the heights of the legal academy. In what follows, we aim to discuss our position regarding Rawlsian private law while engaging with scholars who have further developed this complex debate. Ultimately, we hold that, despite the purported complications, there is, as we path-breakingly argue, a Rawlsian account of the private law.

For Rawls, the “basic structure” of society is understood to embody political and legal institutions that materially affect citizens’ life prospects, such as basic constitutional liberties, security of the person, the system of taxation and transfer, schooling, and fiscal policy. These institutions are taken to be subject to and governed by what Rawls famously calls “the two principles of justice.”10 10.John Rawls, Justice as Fairness: A Restatement 42–43 (2001) [hereinafter Rawls, JaF] (“The two principles of justice [state] (a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties . . . and (b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).”).Show More However, significant scholarly controversy has arisen over the question of whether the private law (e.g., contract, tort, property, etc.) is properly understood to be within the basic structure of society.11 11.As we noted supra note 1, Bruce Ackerman, David Lyons, and Anthony Kronman held the conventional or narrow view that private law lies outside the basic structure. But cf. Kronman, supra note 1, at 475 (suggesting that Rawls should not have narrowed). Scheffler posits that Ripstein views private law as lying within the basic structure, Scheffler, supra note 8, at 232 (“Suppose we accept that, although private law is part of the basic structure, there is nevertheless room for it to enjoy the limited independence from distributive principles that Ripstein envisions.”), but this view is contested. See Kevin A. Kordana & David H. Tabachnick, On Belling the Cat: Rawls and Tort as Corrective Justice, 92 Va. L. Rev. 1279, 1291–92 (2006) [hereinafter Kordana & Tabachnick, Belling the Cat] (interpreting Ripstein as holding the narrow view); Freeman, supra note 8, at 168 (“[For] Ripstein . . . private law ‘has a certain kind of independence’ and should lie outside the basic structure . . . ”). In his newer work, Ripstein side-steps the question. Ripstein, supra note 9, at 291 (“The specifics of Rawls’s formulation need not concern us . . . .”). Murphy holds that the private law is inside the basic structure and that any attempt at narrowing in Rawls’s The Basic Structure as Subject is predicated on a textual mistake. Liam Murphy, Institutions and the Demands of Justice, 27 Phil. & Pub. Affs. 251, 261 & n.30 (1999); Liam Murphy, The Artificial Morality of Private Law: The Persistence of An Illusion, 70 U. Toronto L.J. 453, 457 n.11 (2020) [hereinafter Murphy, Artificial Morality] (“Rawls himself proposed evaluating institutions such as property and contract solely on the basis of social justice as identified by his two principles, which do not obviously have room for values distinctively associated with private ordering.”). Freeman and Scheffler agree that the private law is part of the basic structure. See Scheffler, supra note 8; Freeman, supra note 8; see also Aditi Bagchi, Distributive Injustice and Private Law, 60 Hastings L.J. 105, 109–11 (2008) (discussing the role of distributive justice in contract law).Show More

The controversy over the question of the breadth of the basic structure is understandable: Rawls is believed to have been less than perfectly consistent. But, with regard to the specific relationship between the private law and the basic structure, we have argued that the historically conventional view—that private law is beyond the reach of the two principles of justice—must be mistaken.

It is important to understand what is at issue in this debate. It is neither a mere scholastic exercise, nor a simple game of words; significant matters of social and economic justice are at stake. Consider, for example, the so-called “causal” requirement in tort law—typically associated with the corrective justice conception. The idea here is that, from the perspective of a consequentialist approach, tort liability ought to be constrained: tort defendants are taken to be liable only for harm they have “caused” plaintiffs and they owe a duty of repair only to such plaintiffs. This “bilateral” or interpersonal relationship, although stated several ways, is central, for example, to backward-looking approaches to tort, even despite the contested status of the concept of causation.12 12.H.L.A. Hart & A.M. Honoré, Causation in the Law 58 (1959).Show More

While the causal requirement may be a necessary condition to a number of conceptions of justice, it can also serve as a significant impediment to otherwise seemingly just “systems” or distributive approaches to accident management.13 13.Guido Calabresi, Toward A Unified Theory of Torts, 1 J. Tort L. 1, 1 (2007) (“Yes, all that can go out of torts . . .”—referring to causation and the other “hornbook [elements] of liability”—“but tort law won’t cease being.”).Show More Consider for example, unjustified risk-taking,14 14.George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537, 540–43 (1972).Show More whether reckless or negligent. Such activity, absent an actualized harm, is insufficient to incurring tortious liability. So, ex ante accident management systems that focus on liability for unjustified risk imposition are objectionable for failing to satisfy the causal requirement. Still, ex ante liability, properly and narrowly assigned, is an important tool in the social planning and institutional design of accident management. It is useful, for example, in cost spreading and deterrence,15 15.Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 70 (1970).Show More both of which can be instrumental to achieving certain accounts of social justice.16 16.John Rawls, A Theory of Justice 212–13 (2d ed. 1999) [hereinafter Rawls, TJ] (considering the possibility of strict liability).Show More

Indeed, our own legal system regulates driving a motor vehicle not only with tort, but also with criminal law. The latter imposes liability for what might be termed risk imposition even in the absence of harm caused—for example, penalties for speeding, driving under the influence, and violating various other traffic laws. If tort law were to be subject to the goals of social planning and distributive justice, say, a special concern for the least well-off or people most likely to bear the cost of accidents, swaths of the causal requirement may need to be jettisoned. In addition to the traffic example, market share liability, where liability is predicated upon plaintiffs’ share of a market in faulty products, as opposed to causation, also might be a common approach to tort liability and accident management. While the imposition of liability in these instances fails to comport with the traditionalist causal requirement, it may be crucial to certain forms of accident management, whether conducive to advancing the position of the poor or creating optimal deterrence with the aim of wealth creation.17 17.See, e.g., Richard A. Posner, Economic Analysis of Law 241–45 (9th ed. 2014); A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 918–20 (1999) (noting defendants should face liability above the harm caused when their gain is socially illicit).Show More

  1. See, e.g., Bruce A. Ackerman, Social Justice in the Liberal State 195 (1980); David Lyons, Ethics and the Rule of Law 131–32 (1984) (asserting “the principles of justice” “do not apply to private arrangements and transactions”); Anthony T. Kronman, Contract Law and Distributive Justice, 89 Yale L.J. 472, 474, 477 (1980) (noting the “unconcern with the distributive consequences of . . . private arrangements”). ↑
  2. Kevin A. Kordana & David H. Tabachnick, Rawls and Contract Law, 73 Geo. Wash. L. Rev. 598, 599–600 (2005) [hereinafter Kordana & Tabachnick, Rawls & Contract]. ↑
  3. Louis Kaplow & Steven Shavell, Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income, 23 J. Legal Stud. 667, 667–69 (1994). ↑
  4. Id. ↑
  5. David Blankfein-Tabachnick & Kevin A. Kordana, Kaplow and Shavell and the Priority of Income Taxation and Transfer, 69 Hastings L.J. 1 (2017). In outlining what he terms the three most crucial scholarly “caveats” to Kaplow and Shavell’s argument, Guttentag writes,A second caveat to the double-distortion presumption has to do with property rights. . . . Blankfein-Tabachnick and Kordana argue that taking property rights as a given is deeply problematic for the double-distortion presumption because property rights themselves are a creation of the legal system. Moreover, property rights have significant effects on the distribution of income and wealth.Michael D. Guttentag, Law, Taxes, Inequality, and Surplus, 102 B.U. L. Rev. 1329, 1336–37 (2022). ↑
  6. Blankfein-Tabachnick & Kordana, supra note 5, at 8; Kevin A. Kordana & David H. Tabachnick, Taxation, the Private Law, and Distributive Justice, 23 Soc. Phil. & Pol’y 142, 163 (2006) (“Kaplow and Shavell appear to assume the existence of an underlying system of property ownership and free markets. [The] issue, however, is the very question of the form that property rules should take; that is, we are interested in the question of whether the equity-oriented values that differing theorists hold are best met through tax and transfer, or through (in part) the rules of property law. Thus, it is not clear that Kaplow and Shavell’s discussion, which compares tax and transfer to a tort rule (in isolation) and concludes that tax and transfer is superior in terms of economic efficiency, would (also) apply to the question of the underlying set of property rules.”). ↑
  7. Kordana & Tabachnick, Rawls & Contract, supra note 2, at 632 (“Our conclusions are bold. . . . [C]ontrary to the conventionally held narrow conception, contract law is within the basic structure . . . [and] the door is open for a deeper understanding of the role that private law plays in Rawlsian political philosophy—it is no longer accurate to believe that Rawlsianism is silent on matters of contract and private ordering . . . .”). Shapiro, for example, notes the similarity between our position in Kordana & Tabachnick, Rawls & Contract, supra note 2, and the recent scholarship, aptly drawing conclusions from the perspective of the new paradigm, taking its baseline as given. Matthew A. Shapiro, Distributing Civil Justice, 109 Geo. L.J. 1473, 1531 (2021). “Rawls’s theory thus does not defuse the conflicts between distributive justice and the liberal state’s other roles so much as deny them, by assigning distributive justice effective, if not formal, priority over other imperatives.” Id. at 1532. He then contrasts the new baseline with that of the former “conventional” view, ably recognizing the conflict within that view, and holding that it is “[o]nly by diluting the requirements of distributive justice” that one might “manage to harmonize them with [backward-looking or deontic] dispute resolution and rights enforcement.” Id. at 1533. ↑
  8. See, e.g., Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, H.L.A. Hart Memorial Lecture (May 2014), in 35 Oxford J. Legal Stud. 213, 233 (2015); Samuel Freeman, Liberalism and Distributive Justice 168, 192–93 (2018) (arguing Rawls’s principles apply to the private law); Richard L. Revesz, Regulation and Distribution, 93 N.Y.U. L. Rev. 1489, 1518 (2018) (asserting distributional concerns, not just wealth maximization, should play a broader role in regulation). ↑
  9. E.g., Arthur Ripstein, Private Wrongs 291 (2016); Freeman, supra note 8, at 185; Zachary Liscow, Note, Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency, 123 Yale L.J. 2478, 2486–87 (2014). ↑
  10. John Rawls, Justice as Fairness: A Restatement 42–43 (2001) [hereinafter Rawls, JaF] (“The two principles of justice [state] (a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties . . . and (b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).”). ↑
  11. As we noted supra note 1, Bruce Ackerman, David Lyons, and Anthony Kronman held the conventional or narrow view that private law lies outside the basic structure. But cf. Kronman, supra note 1, at 475 (suggesting that Rawls should not have narrowed). Scheffler posits that Ripstein views private law as lying within the basic structure, Scheffler, supra note 8, at 232 (“Suppose we accept that, although private law is part of the basic structure, there is nevertheless room for it to enjoy the limited independence from distributive principles that Ripstein envisions.”), but this view is contested. See Kevin A. Kordana & David H. Tabachnick, On Belling the Cat: Rawls and Tort as Corrective Justice, 92 Va. L. Rev. 1279, 1291–92 (2006) [hereinafter Kordana & Tabachnick, Belling the Cat] (interpreting Ripstein as holding the narrow view); Freeman, supra note 8, at 168 (“[For] Ripstein . . . private law ‘has a certain kind of independence’ and should lie outside the basic structure . . . ”). In his newer work, Ripstein side-steps the question. Ripstein, supra note 9, at 291 (“The specifics of Rawls’s formulation need not concern us . . . .”). Murphy holds that the private law is inside the basic structure and that any attempt at narrowing in Rawls’s The Basic Structure as Subject is predicated on a textual mistake. Liam Murphy, Institutions and the Demands of Justice, 27 Phil. & Pub. Affs. 251, 261 & n.30 (1999); Liam Murphy, The Artificial Morality of Private Law: The Persistence of An Illusion, 70 U. Toronto L.J. 453, 457 n.11 (2020) [hereinafter Murphy, Artificial Morality] (“Rawls himself proposed evaluating institutions such as property and contract solely on the basis of social justice as identified by his two principles, which do not obviously have room for values distinctively associated with private ordering.”). Freeman and Scheffler agree that the private law is part of the basic structure. See Scheffler, supra note 8; Freeman, supra note 8; see also Aditi Bagchi, Distributive Injustice and Private Law, 60 Hastings L.J. 105, 109–11 (2008) (discussing the role of distributive justice in contract law). ↑
  12. H.L.A. Hart & A.M. Honoré, Causation in the Law 58 (1959). ↑
  13. Guido Calabresi, Toward A Unified Theory of Torts, 1 J. Tort L. 1, 1 (2007) (“Yes, all that can go out of torts . . .”—referring to causation and the other “hornbook [elements] of liability”—“but tort law won’t cease being.”). ↑
  14. George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537, 540–43 (1972). ↑
  15. Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 70 (1970). ↑
  16. John Rawls, A Theory of Justice 212–13 (2d ed. 1999) [hereinafter Rawls, TJ] (considering the possibility of strict liability). ↑

  17. See, e.g., Richard A. Posner, Economic Analysis of Law 241–45 (9th ed. 2014); A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 918–20 (1999) (noting defendants should face liability above the harm caused when their gain is socially illicit). ↑

The Promise and Perils of Private Enforcement

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered

The U.S. Supreme Court has never held that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. Instead, it has selectively incorporated against the states those rights that it deems to be fundamental. However, only two enumerated rights remain that the Court has affirmatively labeled non-fundamental. It is doctrinally puzzling why the Fourteenth Amendment should be understood to stop just short of total incorporation.

Of the last unincorporated rights, only one relates to criminal procedure: the Grand Jury Clause, which guarantees the right to be indicted by a grand jury before prosecution for a felony. The Court declined to incorporate the Grand Jury Clause in 1884 in Hurtado v. California, and this Note argues that Hurtado should be overturned. After analyzing the incorporation caselaw from the Roberts Court, an area in which the Court has been active, this Note argues that Hurtado is doctrinally incompatible with the modern approach to fundamental rights. Despite the internal inconsistencies in the doctrine, which this Note identifies, applying the modern incorporation framework to the Grand Jury Clause shows that the right to indictment is a fundamental one.

Finally, this Note argues that Hurtado can be overturned consistent with principles of stare decisis. Indeed, this Note makes a novel but striking finding—Hurtado likely does not carry precedential force as an incorporation case at all. This Note shows that Hurtado was argued and decided as a procedural due process case. Because the Court’s incorporation doctrine turns on substantive rather than procedural due process, Hurtado did not decide the relevant legal question at all for incorporation purposes.

Introduction

“[F]or so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation: and afterwards by the whole petit jury, of twelve more, finding him guilty, upon his trial.”1 1.4 William Blackstone, Commentaries 306 (London, 16th ed. 1825).Show More

In at least one corner of constitutional law, the Supreme Court makes explicit value judgments about which constitutional rights are important and which are not. Under the Court’s longstanding incorporation precedents, the Due Process Clause of the Fourteenth Amendment only secures “fundamental” rights against violation by the states. States remain free to ignore or abridge rights in the Bill of Rights that the Court deems non-fundamental.

At one time, the Supreme Court believed that nearly all of the Bill of Rights was non-fundamental, but after a flurry of incorporation cases from the Roberts Court, only two affirmatively non-fundamental rights remain: the Seventh Amendment’s right to a civil jury and the Fifth Amendment’s requirement of a grand jury’s indictment as a prerequisite to prosecution for capital or infamous crimes.2 2.Walker v. Sauvinet, 92 U.S. 90 (1876) (civil jury right); Hurtado v. California, 110 U.S. 516 (1884) (grand jury right). While the Supreme Court has never considered the fundamentality of the Third Amendment, the one circuit to consider the question found that it is fundamental. Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982).Show More This Note is concerned with the latter. In 1884, in Hurtado v. California, the Supreme Court held that it did not violate the Fourteenth Amendment’s guarantee of due process when the State of California tried, convicted, and sentenced a man to death without an indictment. This Note offers a long-overdue reconsideration of Hurtado and argues that the right to indictment is a fundamental one that should bind the states—no longer should states be able to prosecute by information at the whim of a lone prosecutor.

This reevaluation of Hurtado comes at a time when the Supreme Court itself is pondering the future of Hurtado. Dissenting from the Court’s recent decision in Ramos v. Louisiana, which incorporated the requirement of a unanimous jury for criminal convictions, Justice Alito warned that the Court’s holding there threatened the validity of Hurtado.3 3.Ramos v. Louisiana, 140 S. Ct. 1390, 1435 (2020) (Alito, J., dissenting).Show More This Note is the first since Ramos to take Justice Alito’s comments seriously by analyzing the validity of Hurtado both on its own terms and in light of the Supreme Court’s recent incorporation precedents.4 4.See Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 187 (2012) (assessing all unincorporated rights post-McDonald but before Timbs or Ramos) [hereinafter Thomas, Nonincorporation]; F. Andrew Hessick & Elizabeth Fisher, Structural Rights and Incorporation, 71 Ala. L. Rev. 163, 175 (2019) (arguing before Timbs and Ramos that jury-related rights should not be incorporated because of federalism concerns). Only Professor Thomas’s piece makes the affirmative case for incorporation of the Grand Jury Clause, but it does so only briefly, and it does not undertake the necessary analysis done here with the benefit of hindsight from more recent decisions.Show More It finds that Hurtado is a flawed, misunderstood precedent that cannot be maintained in light of current doctrine.

In addition, this Note also contributes to the literature by uncovering hitherto unnoticed inconsistencies among the Roberts Court’s incorporation cases. While these cases seem conceptually unified, careful examination shows that they differ from one another in subtle but important methodological aspects.

A word of clarification. This Note takes a purely doctrinal approach. It is not concerned with the well-trodden issue of whether the Fourteenth Amendment was intended to incorporate rights against the states as an originalist matter. Nor does it take any stance on whether incorporation is properly accomplished via the Due Process Clause or the Privileges or Immunities Clause. It accepts as a matter of settled precedent that the Fourteenth Amendment incorporates at least some rights and that it does so through substantive due process. Finally, while there is a voluminous literature both critiquing and defending the grand jury as an institution, that, too, is beyond the scope of this Note and is only considered so far as the Court’s doctrine makes such functionalist assessments of constitutional rights relevant.

The argument proceeds as follows. Part I briefly outlines the contours of the right to grand jury indictment in order to clarify what is at stake in the incorporation debate. Part II traces the arc of the Supreme Court’s incorporation doctrine and then analyzes the modern caselaw, noting differences in how the cases apply the incorporation framework. Part III turns to Hurtado itself, critiquing the opinion and explaining its important role in the development of criminal procedure among the states. Part IV applies the modern incorporation framework to the Grand Jury Clause and finds that it is a fundamental right protected by substantive due process. Finally, Part V argues that Hurtado can be overturned consistent with stare decisis principles. In fact, it is entirely possible that stare decisis does not attach to Hurtado at all under the modern incorporation doctrine because Hurtado determined only that procedural due process does not guarantee the right to indictment—the holding did not implicate substantive due process.

  1. 4 William Blackstone, Commentaries 306 (London, 16th ed. 1825). ↑
  2. Walker v. Sauvinet, 92 U.S. 90 (1876) (civil jury right); Hurtado v. California, 110 U.S. 516 (1884) (grand jury right). While the Supreme Court has never considered the fundamentality of the Third Amendment, the one circuit to consider the question found that it is fundamental. Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982). ↑
  3. Ramos v. Louisiana, 140 S. Ct. 1390, 1435 (2020) (Alito, J., dissenting). ↑

  4. See Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 187 (2012) (assessing all unincorporated rights post-McDonald but before Timbs or Ramos) [hereinafter Thomas, Nonincorporation]; F. Andrew Hessick & Elizabeth Fisher, Structural Rights and Incorporation, 71 Ala. L. Rev. 163, 175 (2019) (arguing before Timbs and Ramos that jury-related rights should not be incorporated because of federalism concerns). Only Professor Thomas’s piece makes the affirmative case for incorporation of the Grand Jury Clause, but it does so only briefly, and it does not undertake the necessary analysis done here with the benefit of hindsight from more recent decisions. ↑

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