VOLUME 131 APRIL 2018 NUMBER 6 © 2018 by The Harvard Law Review Association ARTICLES APPARENT FAULT Aziz Z. Huq & Genevieve Lakier CONTENTS INTRODUCTION .......................................................................................................................... 1526 I. FAULT AND APPARENT FAULT DEFINED AND EXPLORED ..................................... 1533 A. Fault and Apparent Fault Defined ............................................................................... 1533 B. Historical Conceptions of Fault in Criminal, Tort, and Constitutional Law ......... 1536 II. APPARENT FAULT IN SUPREME COURT DOCTRINE ................................................. 1546 A. Apparent Fault in Constitutional Remedies (and Beyond) ...................................... 1547 1. Apparent Fault as a Regulatory Principle for Constitutional Remedies ............ 1547 2. The Parallel Emergence of Apparent Fault in Substantive Constitutional Law .................................................................................................... 1553 B. Apparent Fault and Substantive Federal Criminal Law ........................................... 1556 III. APPARENT FAULT AND THE DISTRIBUTION OF STATE POWER ............................ 1564 A. Apparent Fault as Tax and Subsidy ............................................................................. 1565 B. The Uneven Distribution of Apparent Fault ............................................................... 1568 1. Differences in the Size of the Apparent Fault Tax ................................................ 1568 2. The Gappiness of Fault ............................................................................................. 1571 C. The Distributive Consequences of Apparent Fault ..................................................... 1574 IV. APPARENT FAULT IN HISTORICAL AND INTELLECTUAL CONTEXT ................... 1580 A. What Doesn’t Explain Apparent Fault ......................................................................... 1580 B. The Political Context of Apparent Fault’s Ascent ....................................................... 1584 C. The Ideological Context of Apparent Fault ................................................................. 1588 CONCLUSION ............................................................................................................................... 1597 1525 APPARENT FAULT Aziz Z. Huq∗ & Genevieve Lakier∗∗ 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. INTRODUCTION ederal substantive criminal law and constitutional remedies at first Fblush seem to be distinct bodies of federal law. Both, to be sure, regulate the circumstances in which a court may impose individualized penalties or remedies in cases where a federal law or rule has been vio- lated. Both also figure large on the Supreme Court’s docket. Otherwise, their commonalities seem few and far between. Beyond a handful of First, Second, and Fourteenth Amendment precedents, the Constitution stipulates no substantive criminal law.1 Federal legislators are thus free to fashion a criminal code only occasionally attending to the Constitution. The availability of remedies for violations of individual constitutional ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ 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. 1 William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Jus- tice, 107 YALE L.J. 1, 66 (1997) (noting that among the “aspects of criminal justice that constitu- tional law has left alone” is “the content of substantive criminal law”). 1526 2018] APPARENT FAULT 1527 rights, by contrast, necessarily impacts how both state and federal gov- ernments deploy civil and criminal tools alike.2 Over the past four decades, however, parallel shifts in the Supreme Court’s substantive criminal law and constitutional remedies cases have taken place in rough temporal lockstep. In each domain, the Court has evinced increasing unwillingness to impose either direct or indirect sanc- tions — a criminal conviction, an award of damages, or a remedial or- der — on defendants or state actors who violate the law but whose con- duct does not necessarily indicate an unlawful or antisocial intent. In a wide and heterogeneous array of cases, the Court has refused to sanction these “apparently innocent” actors — so named because their mental culpability is not apparent from their actions.3 Instead, it has insisted on quite particular kinds of evidentiary showings that tend to demon- strate, either directly or indirectly, that the defendant or government official acted with a morally objectionable intent. More specifically, it has insisted on evidence that allows the Justices to conclude that the wrongdoer either knew or clearly should have known that his or her conduct was wrong. The result has been to make what we call “appar- ent fault” an increasingly important gatekeeper of civil and criminal li- ability in federal law. The doctrinal mechanisms the Court has employed to ensure that litigants suffer consequences when they break the law — or are remedi- ated for the violation of their constitutional rights — only when fault is in this sense apparent vary from case to case. Sometimes, the Court operationalizes the apparent fault requirement by reading very demand- ing mens rea requirements into statutes that do not obviously contain them. In other cases, it construes statutory actus reus requirements nar- rowly to ensure that only actions that are impossible to reconcile with an innocent intent are subject to judicial sanction. In yet other in- stances, it operationalizes the demand for apparent fault by creating a good faith exemption to a legal rule. In all these cases, however, the Court refashions liability rules to ensure that only those who it believes specifically intended to achieve an unlawful purpose or who violated a social understanding of legality, and who therefore should have known that what they did was unlawful, trigger legal consequences for their acts. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 2 By “constitutional remedies,” we mean both “remedies that are available as a matter of con- stitutional right for the redress of constitutional wrongs,” Alfred Hill, Constitutional Remedies, 69 COLUM. L. REV. 1109, 1111 (1969), and remedies available by dint of a federal statute. 3 The phrase first appeared in Liparota v. United States, 471 U.S. 419, 426 (1985), but has been used quite prolifically since then in the Court’s criminal law cases, see, e.g., Bryan v. United States, 524 U.S. 184, 194–95 (1998) (citing Ratzlaf v. United States, 510 U.S. 135, 144–45 (1994)); United States v. X-Citement Video, Inc., 513 U.S. 64, 71 (1994) (quoting Liparota, 471 U.S. at 426); Staples v. United States, 511 U.S. 600, 622 (1994) (Ginsburg, J., concurring in the judgment); Ratzlaf, 510 U.S at 155 n.6 (Blackmun, J., dissenting) (quoting Liparota, 471 U.S. at 426). One of the contribu- tions of this Article is to flesh out what the Court means when it talks about apparent innocence and (by implication) apparent fault. 1528 HARVARD LAW REVIEW [Vol. 131:1525 The result has been to make judges’ supervening judgments about the relevant social understanding of legality an increasingly important limit on the availability of judicial sanctions. Further, certain kinds of constitutional and criminal