The Triumph of Fault in Public Law

Abstract

Federal criminal law and constitutional remedies might seem distinct bodies of law. In the closing decades of the twentieth century, however, parallel transformations swept both domains. In each field, the Supreme Court demonstrated increasing unwillingness to impose individualized legal consequences simply because a defendant committed the discrete acts that comprised a crime or constitutional violation. Instead, it insisted on a showing of individualized “fault” to establish liability. This Article first documents this triumph of fault as a common regulatory principle across disparate domains of American public law. This doctrinal change, we demonstrate, has important implications for federal and state regulatory agendas. Intermittent use of a fault threshold for criminal or constitutional liability has shaped the relative cost profile of different regulatory tools. Fault, that is, makes some kinds of coercive regulation less costly even as it imposes an inhibiting tax on other species of state intervention. The triumph of fault in public law hence changes the occasions and populations that are subjected most routinely to state coercion. Rather than diagnosing fault’s ascendency as an endogenous product of legal reasoning, we situate it within a broader historical and intellectual context and argue that what the triumph of fault reflects, and potentially even reinforces, broader changes in the relationship between state and society.