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

Professor Jacob D. Charles's article, "The New Outlawry," (SSRN) is published in the Columbia Law Review, 108 Columbia Law Review 1195 (2024). The article, co-authored with Darrell A. H. 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, legislatures 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-both defensive and offensive--for self-protection and the ostensible maintenance of law and order. Yet such significant authority for private violence, and the values it projects, can have tragic real-world consequences, especially for marginalized communities and people of color. We argue that these expansions of private violence tap into an 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 the law of self-defense, defense of property, and citizen's arrest 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 several constitutional doctrines heretofore considered distinct. Whether limits on authorized private violence fall under the state action doctrine, the private nondelegation doctrine, due process or equal protection, or the republican form of government guarantee, 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.