Federal substantive criminal law and constitutional remedies might seem to be distinct bodies of law. But since the closing decades of the twentieth century, the Supreme Court has demonstrated an increasing unwillingness in both areas to impose either direct or indirect sanctions on persons who violate the law but whose conduct is not necessarily indicative of an unlawful or antisocial intent. Instead, the Court has tended to narrow liability or remedy to instances in which there is evidence that the regulated actor contravened not just the law on the books but also a social understanding of legality. We call this supervening criterion for individual criminal or civil liability an apparent fault requirement. This Article documents the contemporaneous rise of an apparent fault requirement across two domains of Supreme Court jurisprudence and explores its causes as well as its effects. We argue that the demand for apparent fault is likely to make some kinds of coercive regulation less costly even as it imposes an inhibiting tax on other species of state intervention. Rather than diagnosing apparent fault’s rise as an endogenous product of legal reasoning, we situate it within a broader historical and intellectual context as a way of showing the value of understanding doctrine in the context of its sociocultural moment.
* Frank and Bernice J. Greenberg Professor of Law, the University of Chicago Law School
**Assistant Professor of Law, the University of Chicago Law School.
Our thanks to Rabia Belt, Andrew Manuel Crespo, David Fontana, Elizabeth Papp Kamali, Robin B. Kar, Jason Mazzone, Richard H. McAdams, Justin Murray, John Rappaport, Adam M. Samaha, Louis Michael Seidman, John F. Stinneford, Suja Thomas, and Laura Weinrib for terrific conversations and suggestions, which saved us from many errors of fact and judgment. The editors of the Harvard Law Review gave us terrific feedback and did tremendous editing work. We also received useful feedback from participants in workshops at the University of Illinois at Urbana-Champaign, the University of Chicago, and the University of Pennsylvania. Research on this Article was partly supported by the Frank J. Ciccone Fund. Our remaining errors are our fault in all possible senses of that term.