Professor Jacob Charles, "The New Outlawry" -- Columbia Law Review (forthcoming)

Professor Jacob D. Charles's article, "The New Outlawry," will be published in the Columbia Law Review (forthcoming 2024). The article, co-authored with Darrell Miller, argues that regulatory innovations in self-defense law, authorization for lethal force to defend property, and citizen’s arrest law form a species of “New Outlawry” that test constitutional boundaries and raise profound questions about law and violence, private and public action. 

Abstract of "The New Outlawry"

From subtle shifts in the procedural mechanics of self-defense doctrine to substantive expansions of justified lethal force, many legislatures across the country are delegating larger amounts of “violence work” to the private sphere. These regulatory innovations layer on top of existing rules that broadly authorize private violence, like expansive stand-your-ground and citizen’s arrest laws. These innovations and expansions offer private citizens greater license to engage in violence—both defensive and offensive—in order to both protect themselves and contribute to the maintenance of law and order. Yet, as recent events have shown, such broad authority for private violence, and the symbolic values it embodies and announces, can have tragic real-world consequences, especially for marginalized communities and people of color.

We argue that these innovations and expansions of private violence tap into a very ancient form of social control—outlawry: the removal of the sovereign’s protection from a person and the empowerment of private violence in service of law enforcement and punishment. Indeed, we argue that regulatory innovations in self-defense law, authorization for lethal force to defend property, and citizen’s arrest law form a species of “New Outlawry” that test constitutional boundaries, and raise profound questions about law and violence, private and public action. Simultaneously, we use the New Outlawry as a frame to explore connections between a number of discrete constitutional doctrines heretofore considered distinct. Whether the limits on private violence fall under the state action doctrine, the private non-delegation doctrine, due process or equal protection, state experimentation with the New Outlawry provides an opportunity to explore how these different doctrinal categories share common jurisprudential and normative roots in the state’s monopoly over legitimate violence.