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Volume 108

Substance and Form in Vigilante Federalism

Zachary D. Clopton

Professor of Law, Northwestern Pritzker School of Law.

4 Oct 2023

Procedure is power, to be sure, but we should not let a lawyerly interest in procedural design distract from substantive justice.

Vigilante Federalism makes an invaluable contribution by showing how a particular procedural form has been used to undermine substantive justice.  The authors deserve enormous credit for documenting, publicizing, and criticizing what they call “private subordination regimes.”

The central insight of Vigilante Federalism is that private subordination regimes “borrow the legal technology of earlier private enforcement regimes (progressive and conservative alike) to advance an illiberal agenda that has few parallels in twentieth century private enforcement regimes.”  The quintessential example of a private subordination regime is Texas’s SB8 (“SB8”), which deputizes citizens to enforce the state’s anti‑abortion law.  Vigilante Federalism calls out SB8 as a tool of subordination, and it argues that SB8 is especially pernicious because it relies on private enforcement by any citizen and without many of the typical guardrails that attach to more commonplace private enforcement laws.

I concur with the Article’s condemnation of SB8 and its diagnosis of that law as a tool of subordination.  I also concur descriptively that SB8 relies on private enforcement and that its private‑enforcement scheme can be distinguished from prior archetypes.  Where I slightly part company is that I am somewhat less concerned about the procedural design of SB8, and thus relatively more concerned about its substance.  In simple terms, then, the goal of this reply is to amplify important aspects of Vigilante Federalism and to make sure that those important aspects are not obscured by other claims.[1]

First, although it is true that private subordination regimes rely on private enforcement, I am dubious that the “legal technology of private enforcement” is the problem.  Technologies can be used for good or ill.  There are countless examples in the past and today of laws relying on the private enforcement technology to achieve goals that we might find normatively attractive.  The procedural form does not make these laws good or bad, nor do I think that the drafters of these laws have any special attachment to the procedural designs they employed.

Second, Vigilante Federalism criticizes private subordination regimes because they use private enforcement to achieve specific substantive effects, namely subordination.  Vigilante Federalism should be praised for connecting these laws to subordination.  I would go further to suggest that it is this subordination—independent of the legal technology used to achieve it—that deserves our attention.  Those forces seeking to limit reproductive freedom may turn to private enforcement, but they also might turn to direct state action (such as criminalizing abortion) or to extralegal private action (such as violence against abortion providers).  Focusing on the legal technologies being employed in private subordination regimes risks distracting us from the broader threats to liberty. Third, I want to sound a further note of caution about getting too in the weeds on the procedural aspects of these private subordination regimes.  Vigilante Federalism, at times, seeks to distinguish some private subordination regimes based on their attendant procedures.  But a focus on procedural details presents real risks. It risks sanitizing these laws by transforming a conversation about substantive justice into a conversation about legal technicalities.  It also risks legitimizing these laws by suggesting that changes to the procedural design might make them acceptable. But, again, the procedural design is not the point.  SB8 would still be a tool of subordination if standing were limited to purported biological fathers, or if the fee‑shifting provision operated in both directions.

Taken together, these comments serve as a reminder that subordination is the problem.  This message is important for lawyers, and particularly for litigators and proceduralists, because it is easy for us to get wrapped up in procedural intricacies and doctrinal debates and lose sight of what really matters in people’s lives.  The substance of Vigilante Federalism matters more than its form.

To read this Article, please click here: Substance and Form in Vigilante Federalism.