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Taking the law into your own hands: Understanding the rise of citizen-enforced laws

AYESHA RASCOE, HOST:

In state legislatures across the country, a particular set of laws are having a moment. These laws are wide ranging, from restricting abortion access to curtailing LGBTQ rights. And they all have one thing in common - they call on private citizens to enforce them. David Noll is professor of law at Rutgers University. He's also the co-author of a Cornell Law Review article titled "Vigilante Federalism," which details the rise of these laws and the risk that their widespread adoption poses. Professor Noll, welcome.

DAVID NOLL: Thanks. Glad to be here.

RASCOE: Let's start off with this term vigilante federalism. What exactly do you mean by that term?

NOLL: So usually, when you think about federalism in the U.S., we think about states enacting policies that are right for their local conditions. But what we're seeing now is that instead of states engaging in this policymaking process, what they're doing is deputizing private citizens to surveil and police the most intimate aspects of other people's lives. And my co-author, Jon Michaels, and I call this vigilante federalism, because these new laws are really setting up a kind of private morals police, which has the aim of protecting and enforcing traditional social hierarchies.

RASCOE: And so can you describe how the private enforcement works? Like, what does it mean?

NOLL: The simplest way these laws work is by creating what's called a private right of action that allows people to file a civil lawsuit against the groups that the laws target. So, for example, Texas's SB8 says that any person can file a lawsuit against an abortion provider, somebody who aids or abets an abortion or merely intends to do so.

RASCOE: Obviously, that's a very high-profile example. But I understand, like in Florida, Idaho, other states, they're also doing these sorts of laws?

NOLL: Yeah. So there's - there are states that have copied SB8, but you're also seeing the spread of this enforcement strategy to other domains. So for example, there's a flurry of anti-CRT laws that allow parents to sue teachers or school districts. There's a flurry of laws that aim to erase LGBTQ people from public spaces. So it's really spanning the waterfront of sort of populist, right-wing politics and, you know, all of these issues that are the focus of just the most intense cultural and social divisions. Lawmakers are setting up private parties to do citizen enforcement that happens without the involvement of the state.

RASCOE: And does this make it harder for higher courts to overturn the laws?

NOLL: Yeah, absolutely. The usual way of challenging a law that might be unconstitutional is to file what's called a pre-enforcement suit. And when these laws completely cut government officials out of the enforcement process, you're taking that option off of the table. And so somebody who thinks, for example, that one of these anti-trans laws is unconstitutional - they have to wait to be sued and then raise the potential constitutional problem with the law as a defense. Most of us don't have either the time or the money or the energy to get involved in expensive and time-consuming legal proceedings. So people just conform their conduct to these laws, or they're forced to move to other states, or they - right? - they quietly comply with them. And so even though the level of litigation under these laws is quite modest, we're seeing that they're having a huge chilling effect.

RASCOE: Almost all of these are coming from Republican-governed states. Wasn't there this push that was anti-litigation and, like, anti-frivolous lawsuits and all that? Am I confused in that? Wasn't that a conservative thing?

NOLL: You know, I study the history of litigation, and this development has sort of left me with whiplash because for decades, the quote, unquote, "conservative position" was that many lawsuits were frivolous and were extracting attacks on American business. So we needed to erect barriers to keep people from getting in to court. And then around the time that Donald Trump comes to power, you see this almost 180-degree shift. And now you're seeing all of these state legislatures really ginning up litigation as part of an effort to mobilize the base and to suppress these oftentimes constitutionally protected activities.

RASCOE: Are there state legislatures controlled by Democrats that are adopting these sorts of laws?

NOLL: Sure. You know, I think it's important to mention that there's a long history of private enforcement of the law in the United States. We have many, many laws that depend on private parties going to court to enforce them. What's distinctive about these new laws is that they're using private enforcement to advance the right-wing populist agenda. You do see blue states that continue to use laws that make use of private enforcement, but it's not as part of this effort to almost create second-class citizens who are stripped of their rights and pushed out of public life.

RASCOE: What do you think the long-term implications of these laws are for the U.S.?

NOLL: So these laws are dramatically reconfiguring rights in a way that I think people don't really appreciate. We are now entering an era where, in part because of these private enforcement schemes, the civil rights that you have vary dramatically as you move from red states to blue states. And you really have to go back to Jim Crow and before that to the Antebellum Era to find a parallel to that in U.S. history.

RASCOE: David Noll, professor of law at Rutgers University, thank you so much for being with us.

NOLL: Thanks so much. Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.