Joe Bast | June 11, 2023

On June 9, the Law & Economics Center at the George Mason University Antonin Scalia Law School hosted a webinar titled “State and Federal Private Right of Action Legislation: Are These Mechanisms Wise or Worrisome?” The program featured three law professors: Richard Epstein, Karen Harned, and Matthew Shapiro.

I found the session most interesting for what it did not address.

Karen Harned said a new study about to be published reveals that private rights of action appear in at least 3,500 and up to 10,000 current federal and state laws. Those provisions typically give citizens the right to sue to enforce a state or national regulation or law.

All the speakers regarded such legal provisions as risky and potentially “undermining” statutory law and administrative processes and even the Rule of Law and democracy.

Harned said statutes and government administrative procedures, in contrast to private rights of action, ensure “accountability and transparency.” Private rights of action “raise serious questions about delegation of authority by the executive.” 

Matthew Shapiro said private rights of action may be okay but only if they require plaintiffs to have concrete injuries caused by the defendants’ action, and warned further that some laws (such as Texas’ Senate Bill 8) tilt the playing field in favor of plaintiffs and may be “designed to chill the exercise of constitutionally protected rights.” They may threaten “legal equality” and the “impartial administration of the law.” 

(SB8 bars physicians from performing abortions after the detection of a fetal heartbeat except in cases of medical emergencies. According to the Texas State Law Library website, “SB8 allows private citizens to sue anyone who performs or induces an abortion in violation of the law. It also allows lawsuits against anyone who ‘aids and abets’ an abortion in violation of the law.”)

Richard Epstein said private rights of action are unnecessary because current administrative and tort law give access to remedies through a combination of private and collective action; that the administrative state arose (at least in part) to solve the problem of “diffuse injuries” while the doctrine of “special damages” arose to supplement it; and that this system worked well until special interest groups (e.g., environmental activists) were allowed to challenge the decisions of bureaucrats in administrative procedures and in court, creating endless delays of public and private projects (e.g., pipelines) or to outright veto decisions that were reached through “democratic” means. (Sorry about the length of that sentence, but this is how Epstein speaks.)

Epstein lamented the rise of frivolous and predatory litigation and the false allegations and claims often made in the course of litigation. Regarding expanding rights of private action, he said “all sorts of precautions” are needed “to make sure this poison doesn’t come out.”

My question, which I submitted in writing but can no longer access, asked for the speakers’ reactions to claims by conservative activists that citizens, either through direct action or through local sheriffs and county government officials, may disobey laws they believe to be unconstitutional and otherwise act to protect the rights of citizens regardless of what courts say.

My question was only briefly paraphrased by the moderator and posed as the final question of the Zoom session. Harned seemed sympathetic but only said she is familiar with the rising support for such views and “shares their concern.” (I think she said that… it was a little garbled.) Epstein dismissed it out of hand and said “you cannot do blanket exemptions.” Shapiro had no comment.

I guess they thought my question was off-topic. But here is why I asked it.

There is a long history in common law that citizens HAVE THE RIGHT to disobey laws that are unconstitutional or contrary to what they believe to be the law of God.

The Founders were familiar with that history, embraced it, and believed the Constitution protects the right of “lesser magistrates” to refuse to enforce bad laws. This includes the right of citizens (not only government officials) to impanel grand juries, deputize local citizens to enforce local laws, and even to disregard state and federal court decisions and interpose between citizens and the government when the formers’ rights are at risk.

(I’m drawing all this from Matthew Terewhella’s excellent little book, “The Doctrine of the Lesser Magistrates,” but it conforms to my previous understanding of the history of liberty.)

So it is NOT UP TO these law professors, or to state and national elected officials or judges for that matter, to decide whether or when to allow private rights of action.

Those rights are guaranteed in common law and in the U.S. Constitution.

Patriots are increasingly asserting these RIGHTS precisely because statutes and government administrative bodies are no longer “accountable and transparent.” The law is no longer “impartially administrated.” There has been a “long train of abuses.” We have the right to resist tyranny.

I am not saying those citizens and their local officials are always correct; they may often not be. No system is perfect. Their errors must be pointed out and corrected, not simply ignored and censored.

I’m also not saying these private rights of action are currently recognized by many judges. Activists can point to a few recent cases and a few parts of the country where resistance to state and federal legislation is succeeding, but I suspect such efforts are more often than not shot down by unsympathetic judges. But are these judges right? Or are they defending a failing and corrupt legal system?

While the success of a legal system that recognizes more private rights of action may be uncertain, we now know for sure that the current system of crony capitalism, corrupt public officials, election interference, selective enforcement of laws, and two-tier justice is so far from perfect as to make its defense incredible.

If private rights of action “chill the exercise of constitutionally protected rights,” then we ought to reexamine those alleged rights and perhaps come to the understanding (as the U.S. Supreme Court recently did in its Dobbs decision) that they do not exist. 

I suspect these law professors imagine themselves to be gatekeepers standing between citizens and the legal means of redressing wrongs and holding public officials accountable. They probably imagine a world of complete anarchy if they are no longer in control of what rights are to be respected and which are not.  But they are wrong on both counts.

The job of law professors, lawyers (officers of the court), judges, and legislators is to DEAL WITH the power of their citizens and to address their grievances, not decide how little or how much power they should be “granted” or “allowed.” That power is not theirs to grant or to withhold. They are among the rights with which we are “endowed by our Creator.”

Human nature being what it is, this reaction from law professors is to be expected. But they are blind to the anarchy that exists right now with some rights left unprotected and others invented out of thin air and protected despite the unconstitutional burdens they impose on others.

They fail to see how the barriers to justice erected by their profession have allowed a massive expansion of state power to the point of unleashing tyranny on the people. Their actions have voided what the Founders saw was an essential check on the growth of government.

These law professors, and many like them, imagine the current system works well, with a few exceptions (such as lawsuit abuse) that could be corrected by giving the state still more power. They couldn’t be more wrong about that.

What Law Professors Get Wrong