COMMENT: The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional
Stephen Scaife *
State legislatures can indirectly, but effectively, restrict constitutional rights by enacting statutes that create a private cause of action. This is possible when the cause of action creates potential damages that are so severe as to de facto compel people and entities from engaging in certain conduct. For example, if a statute allows private citizens to sue a person when that person engages in X, then individuals and entities may cease to engage in X if the possible liability arising from engaging in X is too significant. When the United States Constitution protects the conduct that the statute de facto, though indirectly, compels people to forgo, a serious issue arises.
* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Presbyterian College. I would like to thank my wife, Rachel Scaife, for her constant love and support. I also want to thank my parents, Tom and Kyung Scaife, for their unending encouragement and love. As well, I am grateful to Professor Jack Preis, who provided invaluable feedback and counsel during this writing process. Finally, I want to thank the University of Richmond Law Review staff for their diligent efforts in preparing this paper for publication.