The Safety Of Trains v. Cars and Trucks

Understanding Rail Accident Risks With Appropriate Context

Honestly, it is surprising that so many railway deaths are not in the right of way (ROW). The defining characteristic of rail transportation is that it travels on fixed tracks which have a right of way.

There are extremely rare incidents of someone getting killed from a train while not being on the tracks - like when it falls off a bridge and kills someone below as one did not so long ago on I-25 near Pueblo, or when an accident releases a poisonous gas that kills people outside the ROW but nearby which happened to the parents of one of my first clients - but those are vanishingly rare.

Of course, what they are really doing in these statistics is distinguishing between deaths in the ROW at highway crossings and deaths in the ROW at something other than highway crossings, and basically ignoring the tiny percentage of deaths that fall in neither category.

The regulatory focus on highway crossings to the near exclusion of safety measures in railroad railways isn't unreasonable.  According to the Federal Railway Administration:

Highway-rail grade crossings are intersections where highways cross railroad tracks at-grade. Approximately 212,000 highway-rail grade crossings exist on the approximately 140,000 miles of track that make up the United States’ railroad system.

If we conservatively assume that the average highway rail grade crossing is 105.6 feet (i.e. 0.02 miles), then there are 4,240 miles of track in highway-rail grade crossings, which is about 3% of the total miles of track in the U.S. (and realistically the truth is probably closer to 1-2%). 

While only 30% of rail deaths nationally are at highway crossings, the number of deaths per mile of track are 10-30 times greater at highway crossings than they are away from them. But, the cost of safety measures to prevent rail deaths is roughly proportional to the length of the track when they are put in place.

Also, both passenger rail and freight rail cause far few deaths per passenger-mile than cars, to both passengers (who are safer by a factor of seventeen) and bystanders like pedestrians and bicyclists and people other cars, and per freight ton-mile than trucks carrying freight to both operators and bystanders.

In the U.S., in 2024, there were 954 railroad deaths and 6,542 nonfatal railroad injuries.

(Source)

There is about 1 fatal rail death away from highway crossings per 196.5 miles a track away from highway crossings, and there is about 1 fatal rail death per 806 highway crossings at highway crossings. Vanishing few fatal rail deaths are to people on the train itself 

People on railroad tracks who shouldn't be (i.e. trespassers) account for 69% of railroad deaths, but only about 10% of nonfatal railroad injuries, because 51% of rail accidents involving trespassers that make it into official statistics are deadly. 

The vast majority of rail traffic in the U.S. is freight. U.S. freight rail carried 1.71 trillion ton-miles per year with about 100 tons per train car. So, about 17,000 million train car-miles per year. 

Amtrak provides 6544 million passenger miles per year of transportation. About 35% of those are in the Northeast Corridor which run about 80% full on average and about 65% are outside the Northeast Corridor which run closer to 50% full on average. A coach car holds about 74 people which is about 59 people per car in the Northeast Corridor and about 37 people outside it. So, about 39 million train car miles per year in the Northeast Corridor and about 115 million train car miles per year outside the Northeast Corridor, for a total of about 152 million train car miles per year.

So, about 0.9% of train car miles are passenger train car miles and about 99.1% of train car miles are freight train car miles.

If rail deaths are no more likely, per train car mile, to be caused by freight train cars than by passenger train cars (although arguably the risk is per train and not per train car, in which cars passenger trains which have far fewer cars per train are much more dangerous, even though this is harder to estimate), we can reasonably estimate that passenger trains kill about 12 people per year on average (2 passengers and 10 other people), while freight trains kill about 942 people per year on average. Adjusting for train car length who shift this somewhat from freight trains to passenger trains, but even so, freight trains would be the dominant issue.

Do Existing Rules Reflect The True Nature Of The Problem

Of course, it only makes sense to take measures to reduce right of way deaths away from highway crossings if there is an effective (and cost effective) way to do so. 

People walk across and along train tracks all the time, and since trains are noisy, and you only need to move a few feet away from train tracks to avoid being hit by one, normally walking across or along train tracks is pretty safe, so long as you are able to hear them coming, you pay attention, you don't fall asleep on them, you don't get stuck on them, and you get out of the way when they come. And, it isn't really clear what the statistics use to define a trespasser, and we can't really understand the statistics without knowing this definition.

Is a trespasser merely someone who is in the right of way at all? Is a trespasser someone who tries to hitch a ride on a train that isn't using it like a passenger on a typical passenger train? Or what?

Common intuition wouldn't consider crossing over a train track when there is no indication that a train is coming, away from a highway crossing, to be trespassing, nor would common intuition consider walking along a train track in the right of way when there is no indication that a train is coming to be trespassing. I did that on my walk to and from school in junior high school almost every school day for two years without anyone even suggesting that I was trespassing.

Crossing a highway crossing when there are indications that a train is coming such as flashing lights or barriers that come down probably is trespassing, but that obviously doesn't apply when you aren't at a highway crossing.

The Federal Railway Administration, however, begs to differ, stating:

It is illegal to access private railroad property anywhere other than a designated pedestrian or roadway crossing. Trespassers are most often pedestrians who walk across or along railroad tracks as a shortcut to another destination. Some trespassers are loitering or are engaged in recreational activities such as taking photographs, jogging, bicycling, hunting, or operating recreational off-highway vehicles (ROVs). Riding ROVs along railroad tracks leads to the erosion of an important part of the track foundation known as ballast, or the rock and soil material that supports the ties and rail.

But, this definition is awfully harsh. From a pedestrian's perspective, it is often much safer to walk across or along railroad tracks away from a designated roadway crossing, than it is to cross at a highway crossing where there is much more frequent and less noisy car traffic, or across open ground away from the railroad right of way (indeed, railroads that are no longer in use are often converted to pedestrian trails for just this reason) which may constitute trespassing on private property (which is dangerous in much of rural America) and is sometimes uncleared brush. 

Sticking to official pedestrian routes is challenging. Many rural areas have no sidewalks, and walking along rural roads at night can be much more dangerous than walking along railroads. 

Designated pedestrian crossings are extremely very rare outside of dense urban areas and resort areas, because they aren't cost effective in places with little pedestrian traffic and only marginal safety risks to the pedestrians who do without them. 

But train tracks have to be crossed somewhere to get from point A to point B in many cases, because tracks often split whole states in two. 

In flat farmland, highway crossings are often a mile to six miles apart, and highway crossings can be even more sparse in mountains, forests, wetlands, and deserts. 

These detours can be tolerable in a car or a motorcycle, but represent immense delays relative to crossing a train track away from a highway crossing for a pedestrian who may have to cross that track to get to school or work or a friend's house on a regular basis.

So, simply writing off people who are simply meeting the strict FTA definition of rail right of way trespassing as "at fault" is really unreasonable, blames the victim, and unreasonably protects railroad operators from legal liability when the common law "Learned Hand" test for negligence liability (i.e. that the probability adjusted risk of harm is greater than the cost of a measure that would prevent that harm) would hold railroad operators liable for these injuries if they didn't take reasonable and cost effective measures to prevent them.

In the face of unreasonable trespassing definitions and regulations of pedestrians near train tracks, even extremely expensive preventative measures, like tall fences, will be routinely circumvented. And, authorities won't do much to prevent the harm, because the authorities seeing the situation up close will be aware that these work arounds that circumvent overkill prevention measures like tall fences, will mostly do more good than harm.

Also, my intuition is that ordinary pedestrians walking across or along railroad tracks, especially in rural and suburban areas, are not at all typical of people who are killed in rail accidents, because it is so easy to hear trains coming and because it is so easy in most cases to get out of the way. I suspect that these cases probably actually make up less than 10% of rail accidents involving pedestrians, even though the FTA itself admits on its own website that this is the predominant form of "trespassing" in rail right of ways.

Instead, I suspect that the typical cases that result in serious injury or death are very different. 

Maybe the pedestrian is a young child to little to appreciate the risk of being on train tracks when one can hear a train coming. Maybe the pedestrian is deaf or wearing headphones. 

Maybe the pedestrian falls asleep on the tracks while drunk, on drugs, or homeless, mistakenly thinking that this particular track which has low frequency traffic has been abandoned entirely. Maybe the pedestrian has been assaulted or knocked unconscious and left on the tracks. 

Some of these cases may be close to the boundary between reckless behavior indifferent to the grave risk that they will be killed and full fledged intentional suicide a bit like playing Russian roulette. 

Maybe the pedestrian is trying to hitch a ride on a freight train and stumbles. 

Maybe the pedestrian is on a rail bridge or other part of the right of way where there is no easy place to move and get out of the way of the train when it is coming. Maybe the pedestrian somehow gets stuck on the tracks with a foot wedged into a gap or is trying to rescue someone else.

Ideally, better data would add insight that the official statistics do not, and we wouldn't have to rely on intuition. But, relying in intuition grounded in common sense and lived experience until better data is available, is usually better than taking no action at all until better data is available, especially if the measures suggested by that intuition aren't terribly expensive or difficult to implement.

If my intuition is right and these are the predominant cases of result in rail deaths or injuries to "trespassers", then the broad FTA definition in addition to blaming the victim, also undermines its effectiveness by being so broad that it fails to distinguish between reasonable conduct that is only dangerous in the most freak circumstances and unreasonable conduct that really does pose an extraordinary risk of death which should be actively policed to prevent rail deaths and injuries. By not tolerating reasonable conduct, the overbroad definition undermines its own effectiveness at preventing the harms it is designed to discourage.

Distinguishing between "safe trespassing" within the FTA definition and "unsafe trespassing" within the FTA is also critical to determining what kind of preventative measures could reduce rail right of way deaths and injuries.

Possible Infrastructure Based Solutions To Reduce Harm

If the real problem is predominantly people who fall asleep or are otherwise unconscious or stuck or inert on train tracks away from highway crossings, then the solution might be to periodically put something like a LIDAR sensor along active train tracks that warn the train operator of the obstruction in time to stop the train (which could take more than a mile of warning about a minute before the train reaches that point), which would prevent not only deaths to trespassers, but also train collisions with fallen trees, large sleeping wildlife (for which "cow catchers" were designed in an earlier era), and debris carried there by a storm. These preventative measures weren't really technologically feasible or cost effective in the late 19th century and early 20th century when existing freight rail systems were invented. But now, these kinds of sensors and a way to send their signals to trains on the routes are cheap and easy to retrofit commercial off the shelf technologies that require only minor modifications for this application.

At crossings, something like a LIDAR system, or even just an "emergency stop" switch that someone could activate in the highway crossing infrastructure, could reduce the number of collisions arising from vehicles stuck at a highway crossing. Even if the warning was transmitted to the train when it was too late to come to a full stop, on oncoming train aware of an imminent collision could slow down as much as possible and activate maximum warning sirens to mitigate the magnitude of the harm from an unstoppable collision and could alert first responders so that they could on their way to the scene of the nearly inevitable collision before it even happened, in situation where every moment counts in saving someone's life. 

If a big part of  the problem is people who are deaf or wearing headphones, bright, flashing, motion sensor activated lights that only go off when trains are actually coming, located away from highway crossings, which are also cheap, easy to retrofit, commercial off the shelf technologies could do the trick, and might even reduce the need for loud train horns in the middle of the night.

The solutions above would be cheap, and could be implemented at a very manageable cost by railroad operators in response to newly adopted safety regulations (which would prevent a race to the bottom by profit minding companies competing with each other) over a period of perhaps five or ten years.

If the problem is people trying to hitchhike on train cars, hobo style, maybe a partial solution would be to design train cars so that they are difficult to ride or mount, without ladders or anything else to grip, and with the top of enclosed freight cars designs with pitched roofs that are too steep to rest upon for any length of time.

This would be very expensive to retrofit, but if the new design standards were imposed only prospectively to newly purchased freight cars as they were replaced over their useful lives, the new design would probably not be much more expensive than the old one, and as the percentage of new design cars increased over time, the entire strategy of hobo style hitchhiking on freight trains would grow increasingly less popular.

This gradual replacement would also dovetail with reduces consumption of coal, which is the single largest component of of rail freight, in favor of renewables, nuclear, and natural gas transported by pipeline, and declining consumption of liquid fossil fuels (another major component of rail freight) as electric vehicles gradually replace internal combustion engine vehicles, with freight rail instead being used to ship more containerized cargo.

Regular underpasses or overpasses for wild animals might not save many human lives but might prevent train collisions with wild (or domestic) animals that are unable to get out of  the way in time or don't realize the risk, which is surely something that both conservationists and train operators would appreciate, which is fundamentally, very low tech, like Roman Empire class civil engineering. But these measured could potentially be quite expensive to retrofit into existing rail lines. Still, good data on "rail kill" could identify the areas where these kinds of collisions are most common so that the investment in these solutions could be implemented first where it would do the most good, and these standards could be established for new rail lines (mostly proposed high speed rail lines).

Admittedly, none of these measures would be very effective against someone who is simply reckless to the point of being virtually suicidal, or someone who is actually suicidal. 

For these cases, a highly targeted campaign of public service announcements, that focuses only on the conduct that other preventative measures can't deal with, that actually is high risk, in channels that the people most likely to act this way are most likely to hear and take seriously may be the best possible solution - a bit like the campaigns in the 1980s about drunk driving and the importance of having a designated driver. A PSA campaign probably wouldn't be as effective as some of the new safety infrastructure suggested in this post, but it would almost surely make some difference if it was well done.

The Morality Of Legality

Resistance from civil servants has been less effective at mitigating illegal conduct from Trump than one might hope, because the U.S. Supreme Court is enamored of a novel "unitary executive theory" with no historical basis, and because Trump has used his illegal attempts to fire independent agency leaders, to fire civil servants without a legal basis, to interfere with federal government unions, and to appoint incompetent people chosen for loyalty, in order to undermine this form of resistance to his illegal acts.

The Morality of Legality holds that it is a moral wrong, and essentially taboo, for those who work in the executive branch to act unlawfully, even if high-level officials much want to act unlawfully, even if circumstances clearly call for the action in question, and even if there is a strong public demand for the unlawful action. The Morality of Legality is less innocuous and more directive than it might seem. It is a red light; it is a conversation-stopper; it empowers law and lawyers. Those who are committed to it will not engage in unlawful action even if no court will be available to strike the action down, and even if there would be significant gains, including political gains, from undertaking the action. 

The Morality of Legality distinguishes nonauthoritarian from authoritarian systems, and it is a fundamental (and puzzlingly unrecognized) feature of the rule of law. In U.S. constitutional law, it can be taken to be codified in the Take Care Clause. Those who are committed to the Morality of Legality are willing to face "litigation risk" and to seek changes in existing law, even if those efforts are more likely than not to fail. The Morality of Legality is often felt as a matter of duty, rather than a product of some consequentialist calculation; but it is probably best justified on rule consequentialist grounds. 

By itself, the Morality of Legality is (mostly) agnostic on the allocation of interpretive authority as between the executive branch and the judiciary. Under emergency circumstances, very narrowly defined, the Morality of Legality might have to yield. The Morality of Legality might also be followed in other places, including of course legislatures and courts, and also private institutions.

Cass R. Sunstein, The Morality of Legality, SSRN (2025).

The Case For Bills Of Attainder

Every issue has two sides. I find that argument in favor of allowing Bills of Attainder particularly weak. But here it is:

For half a millennium, bills of attainder were an accepted sovereign power, used by British and American governments to defend their people in times of emergency. Throughout the war for independence and its aftermath, the new American states repeatedly attainted loyalists and confiscated their lands, remaking much of the socioeconomic structure of the country. Then, in little over a year and with barely any reasoning, the ratifiers of the 1788 constitution stripped the state and federal governments alike of their power to attaint. Today, attainder bans are remembered as a just and inevitable part of Enlightenment reform. 

But in truth, these bans were anti-republican. Worse, they were a mistake. 

Eighteenth-century bills of attainders were not the arbitrary acts of tyranny that scholars today imagine. They were a narrow emergency power, passed only after debate and examination of evidence, with procedures guaranteeing due process and appeal written into the text of the laws. 

Moreover, although legislators occasionally passed abusive attainders, early Americans proposed reforms that would have prevented abuses without prohibiting attainder outright. In the right circumstances, bills of attainder are a valuable tool of republican government. The history and ideals of the Founding Era provide compelling reasons to embrace bills of attainder in exceptional times.

Nathan Ristuccia (Institute for Free Speech), In Praise of Attainder, SSRN (2025).

Social Murder

Failing to protect the vulnerable in a manner that caused them to die avoidable deaths, such as leaving homeless people to freeze to death on freezing nights, is "social murder."

The concept of social murder has been adopted into British legal and sociological lexicons to conceptualize the State’s reckless sacrifices of its most vulnerable populations—people deemed socially undesirable, legally undeserving, and economically redundant—to avoidable and premature deaths. The State allows these populations to die a multitude of deaths by failing to protect them; notably, victims of social murder are relegated to society’s underclasses, if not completely excluded from the body politic, before they are physically eliminated. Social murder is neither genocide nor ethnic cleansing; instead, social murder captures the elimination of groups of people via atrocious events for which the State bears indirect or partial responsibility, through calculated abandonment instead of specific intent.

Social murder takes place in the United States, too, though it has yet to be recognized. This Article undertakes the task of introducing the concept of social murder into the American legal lexicon, explaining how the United States employs social murder as a necropolitical governance technology, and sounding an alarm concerning the likely increase in social murders as corporate authoritarianism threatens to overtake the democratic rule of law. The Article makes the claim that because instances of social murder in the United States necessarily involve breaches of enforceable agreements as well as the democratic social contract, social murder is best analyzed through social contracting theory. Social murder should be viewed not simply as catastrophe, but as either extreme breach of the social contract, or as the performance and enforcement of an antisocial contract governing the subjugation and elimination of social murder’s victims.

Marissa Jackson Sow, "Social Murder" Washington and Lee Law Review (Forthcoming) on SSRN.

Enforcing Noblesse Oblige

La noblesse oblige literally "nobility obliges") is a French expression that means that nobility extends beyond mere entitlement, requiring people who hold such status to fulfill social responsibilities; the term retains the same meaning in English. For example, a primary obligation of a nobleman could include generosity towards those around him. As those who lived on the nobles' land had obligations to the nobility, the nobility had obligations to their people, including protection at the least.

- Wikipedia, Noblesse Oblige.

The American system of representative democracy is profoundly anti-elitist. In its ideal form, which it somewhat approximates, all adults can vote for candidates who are not meaningfully screened for qualifications to do the jobs for which they are elected.

Most other parts of our society don't work that way. 

Typically, when a business or government needs an employee, or an individual or firm or government wants to hire a contractor to do something, the business or person seeking a contractor tries to do so on a meritocratic basis consistent with what they can afford. For many kinds of tasks, a government license awarded on the basis of a meritocratic examination process that can be revoked for various kinds of professional or personal misconduct is required to even be considered for doing that task.

Most of the time, competence and qualifications are considered to some extent in the process of electing representatives to oversee the government on behalf of the voting public by the voters who are given the authority to elect them. But that isn't hard wired into the system (although some more specialized state and local elected offices like sheriffs and surveyors and judges and prosecutors sometimes do have some minimal professional qualifications that are required of candidates).

Unlike elected officials, civil service employees of governments are appointed on a formally meritocratic basis with only minimal political input by supervising officers for the prospective employees who are well-informed about the candidates' qualifications and are generally highly trained and qualified themselves.

Why do we have a system that allows ill-informed voters, no matter how uneducated they may be, choose people to run the system from among a group of minimally screened candidates with no obligation, even an unenforceable and theoretical one, to choose from among those candidates on a meritocratic basis?

The political theory behind a system with minimal screening of candidates and a very broad franchise is that the desire to win elections gives politicians an incentive to care about the best interests of the people who are entitled to vote, rather than caring only about their own personal interests and desires.

The ill-treatment that American society affords to people who can't vote at some or all levels of our political system, like children, non-citizens, prison inmates, institutionalized mentally ill people, people in places like the District of Columbia and Puerto Rico, and people who live outside the territory of the governmental body whose voters select those elected officials, supports the conclusion that including someone in the franchise tends to produce political outcomes that benefit people who can vote. 

Likewise, policies that meet the interests and desires of people who vote more consistently, like older people, educated people, and Evangelical Christians, are more frequently translated into government policy than the interests and desires of people who vote less often, like younger people and less educated people, even when they have a right to vote.

The American political system has made a calculated choice that having politicians who care about the needs and desires of as many people as can legitimately be permitted to vote is so important that it is worth the risk that in the cases where these voters will make bad choices, especially when they are ill-informed and are not very good decision makers about anything.

The political theory, in other words, is that a franchise that is as broad as possible with minimally screened candidates will enforce noblesse oblige upon the class of politicians who are elected in this system, and that having politicians who are incentivized to display noblesse oblige in their decision making is worth the price that society pays in choosing less qualified leaders because a greater share of the decision makers are ill-informed and bad at making decisions than they would be if the franchise was narrower. The political system of American representative democracy enshrines equality in order to create no incentives to make as few people as possible strangers of the law.

It is a political theory that leans heavily on formal political institutions to cause this to happen rather than alternative means.

Not every political system in history as relied upon this strategy.

Confucianism, in contrast, focuses on securing noblesse oblige by instilling a political culture infused in it.

In Confucianism, almost every important interact in life in characterized as being unequal and hierarchical. Subordinates have a duty to obey and defer to their superiors. Superiors have a duty to look out for the bests interests of their subordinates in a spirit of reciprocity and fiduciary-like duty. Confucianism calls for people to be promoted to higher positions of authority on the basis of merit, which is viewed as a balanced mix of competence and good character in the sense of upholding confucian values.

Modern cultures with strong Confucian values display pros and cons. They tend to be well ordered, to be law abiding, to have people who are good at self-organization and cooperation in times of need, and to have relatively few people who are just cast away and neglected. But these are prone to abuse of authority and bullying by people higher up in the hierarchy, tend to ignore positive or urgent input from people low in the hierarchy, tend to force subordinates to sacrifice their own well-being and desires for the demands of their superiors, and are reliant on the people at the top to be innovative because those at the bottom are not permitted to innovate. Confucianism, focused as it is on a system rooted in good men, rather than good laws, also tends to be vulnerable to corruption and not very focused on the consistent rule of law.

Of course, different modern Confucian influenced societies address the "natural" shortcomings of Confucianism in different ways. 

Japan has done a relatively good job at curbing the selfishness of people like senior executives in positions of power, and has begun to temper Confucian values with respect for personal self-actualization as it has become a more affluent society with the luxury of doing so. 

South Korea has been less successful at curbing excesses and abuses by superiors, and has likewise been somewhat less successful at fulfilling the obligation to look out for subordinates. But it has also been better, on balance, at allowing self-actualization in lieu of subordination of one's own desires to the will of those superior in the hierarchy.

China has done a poor job indeed of curbing kleptocracy by those in power, but has done a good job at having the older generation cede power to the younger generation, in a manner that has fostered a class of relatively young, powerful, innovative change makers that have kept its society from becoming too static and tradition bound. But China has done a particularly poor job of respecting individual self-actualization, or listening to the voices of subordinates with valuable input that could be offered in decision-making. China has also suffered mightily from corruption and is deeply immersed in a social and intellectual climate of dishonesty and censorship of the truth.

Feudalism, the political culture that produced the concept of noblesse oblige in the West was similar, but unlike Confucianism, awarded positions of authority based primarily on the hereditary principal, rather than based upon meritocratic selection. Also, feudalism tied the sense that superiors should look out for the well-being of their subordinates to the pride, ego, and greed associated with ownership. In a feudal context, you basically owned your subordinates, and your sense of noblesse oblige was related to your desire to have your property be the best that it can be for your own person benefit since this would make you rich in the process.

Saudi Arabian style monarchies, while hardly meritocratic or democratic, have at least tamed the hereditary principle, by having large, polygamous royal families in which the current ruler can choose the most qualified person within this large royal family to be their successor. This mitigates the risk that a hereditary successor will be profoundly incompetent or immoral, and creates an incentive for its many princes to distinguish themselves in competence and loyalty in connection with the competition to be a successor to the reigning monarch or at least a member of the reigning monarch's inner circle.

Saudi Arabian monarchies do show outstanding noblesse oblige in terms of using their wealth to benefit the actual citizens of their kingdoms, but like most absolute monarchies, are also highly repressive and authoritarian, and treat people who are not their permanent subjects and property as disposable and care for their well-being only to the extent that it is transactionally necessary.

Returning to the question of the American political system, the question is really how we can secure noblesse oblige on a broad based basis, without sacrificing competence, rule of law, and freedom from corruption motivated by partisanship, to the extent that the MAGA movement does today. 

While there is a place to recognize political motives rooted in a desire to satisfy a broad grass roots of society rather than only its elites, not all choices which we have vested politicians with making are equally valid. There may not be one right choice, but there are many choices which are objectively worse across the value systems that are intersubjectively shared by broad swaths of our society. And, a system that makes objectively bad choices because swaths ignorant people in the grass roots don't understand that these are bad choices is broken.

Furthermore, the American political system has slipped away from securing noblesse oblige on a broad based basis from its political leaders, because its electoral and legislative processes and procedures have created incentives to further the well-being and desires of minimal winning coalitions while neglecting or actively harming those outside the winning coalition. 

Also, deep rooted flaws in the design of the American political system that arose because the Founders who designed it didn't have the benefit of the lessons of two and a half centuries of global democratic government's successes and failures, prevent the American political system from accurately translating the needs and desires of its people as a whole into appropriate action. It is a political system that is too gridlocked to promptly change to reflect new knowledge and needs, and is too biased towards rural white Christian interests and the interests of the ultra-rich, and against urban, non-Christian and non-white people's interests, and people who are not ultra-rich.

The inability of our gridlocked political system to address urgent needs and desires, especially those of the working class has been toxic for the American political culture. It has undermined faith in the belief that politicians can be in good faith about wanting change. It has washed away concern about the good character or competence of its political leaders. It has fueled the search for scapegoats to lash out against like immigration and free trade and non-Christians and LGBT people and women's rights and racial minorities. It has encouraged thoughtless and radical anti-government attitudes, conspiracy theories, anti-science ideologies, and distrust of intellectual elites.

Working class needs and desires have been neglected, in part, because they don't vote as consistently as more educated and affluent people do, and, in part, because the economy is changing but political gridlock has preventing timely and competent responses to these changes. This is led to the conventional wisdom that political changes have not occurred because bipartisan political elites are conspiring against them, even though this is more untrue than not and the primary reason that the current political system has not addressed their needs is that  the current system makes it too hard for well-intentioned political elites to secure effective change.

Returning to the question of the American economic system, there, the question is mostly, how we can cause the people at the top of economic hierarchies to display more noblesse oblige to their subordinates and to the larger society at a time when they have gone too far in milking the system for their own personal benefit at the expense of the rest of society. American economic elites generally are very competent, and are certainly much less corrupt the American political elites. But they also have far too weak incentives to refrain from causing externalities or exploiting subordinates and third-parties for their own personal benefit. The American political system's job is, in substantial part, to reign in the excesses of American economic elites, and the American political system has done a fairly shoddy job of doing so, in part, because the system in designed in such a way that this kind of regulation of American economic elites is too difficult to secure in a system that takes an unreasonably wide consensus to act.

Beyond The Adversarial Models For Mental Health And Incapacity

I'm litigating an adult guardianship case. It isn't the first time I've done one. As a general rule, there is, at least, a lawyer for the person asking for a guardianship, a court appointed visitor (social work who sees what's going on), a court appointed lawyer for the person upon whom a guardian is to be imposed, and a court appointed guardian ad litem for the person to have a guardian impose, in addition to a judge and a judge's division clerk involved. A physician's letter from none of those people is preferred. There is an emergency guardianship option, but the usual process takes about two months. Sometimes more lawyers are involved if there are disputes over who should be appointed. Sometimes, adult protective services is involved.

On one hand, the concern that the process not put an adult in a subordinated position with reduced autonomy rights without adequate due process is legitimate. On the other hand, the process puts a lot of barriers in the way of getting help and intervention to people who, by definition, aren't able to reasonably manage their own affairs and are highly vulnerable to manipulation in any formal process. We put a lot of highly paid professionals in place to check and balance each other, instead of placing greater trust into fewer people at a lower cost. I have to think that this isn't the optimal system. We should have a system that is more pro-active and doesn't pose quite such high barriers to intervention, perhaps with more pro-active follow up and supervision of fiduciaries that extends beyond a paper record.

The thing is that, whether or not they get it, lots of people, maybe half or more, are going to spend some time in their lives when they need, or would benefit from, transitioning to having someone who can make decisions for them. An adversarial model for securing this situation, and a placing a premium on autonomy, which makes sense for most of one's adult life, even in times of physical illness, isn't optimal for lots of people at the end of their lives.

Mental health care, likewise, really ought to be more pro-active. And, the assumptions of the physical health care system, which is oriented towards a "cure" of temporary illnesses and injuries, really isn't appropriate for a large share of mental health care conditions which are congenital or at least permanent. Symptom management is the concern, not a "cure". The push for mental and physical health care parity may have been a good transitional way to leverage more insurance coverage and access to mental health care, but the truth is that they are fairly disjoint and efficiently providing each involves different professionals. The privacy concerns are different. The kind of treatment setting that is needed is different. We should have systems in place to pro-actively intervene in the face of predictable crisis situations. 

A Clever Research Design Tracks Corruption In Italy

It is possible to identify lies about birth dates in public records statistically, even if you can't tell which particular birth dates are lies. This trick was used to track honesty by region in Italy, and shifts in the honest of different regions over time.

Using census data, we study false birth-date registrations in Italy, a phenomenon well known to demographers, in a setting that allows us to separate honesty from the benefits of cheating and deterrence. By comparing migrants leaving a locality with those who remain in it, we illustrate the tendency of Italians to sort themselves across geographic areas according to their honesty levels. Over time, this tendency has modified the average honesty level in each locality, with relevant consequences for the distribution across geographic areas of outcomes like human capital, productivity, earnings growth, and the quality of local politicians and government.

Massimo Anelli, Tommaso Colussi, and Andrea Ichino, "Rule Breaking, Honesty, and Migration" 66(2) Journal of Law and Economics (2023) (Supplemental Data here). This closed access paper is analyzed in the comments at Marginal Revolution and at another blog that it links to discussing the paper.

Common Misconceptions About Law

This is a list of common misconceptions people have about the law (to be clear, every statement below is false):

Sources of Law

* The law is mostly the same everywhere.

* The law is the mostly the same everywhere in the U.S.

* Legal terms almost always mean exactly one thing no matter where they are used.

* The law mostly fits a criminal law paradigm of statutes that prohibit you from doing something and impose a punishment if you do that.

* The constitution tells you everything you need to know about the law.

* Only the U.S. Supreme Court has jurisdiction to decide the constitutionality of something.

* Usually, a determination that something is unconstitutional involves finding that a treaty, statute, ordinance, or regulation is unconstitutional.

* The law is mostly contained in statutes.

* It is rarely necessary to look at case law or regulations to determine the meaning of a statute.

* The "common law" is the same in every state.

* Only one state or country's law applies to a business operating on the Internet. In a variant of this, the most important way to determine which law applies to a business on the Internet is where its servers are physically located.

* The law is static and has changed only a little over time.

* Modern U.S. law is very similar to modern English law.

* The Declaration of Independence creates enforceable U.S. law.

* The U.N. Universal Declaration of Human Rights creates enforceable U.S. law.

* International law consists mostly of legal rules that can be litigated in international courts producing judgments that matter.

Judges

* Judges are heavily influenced by their personal feelings about litigants and their personal relationships to litigants and are strongly biased against particular people.

* Judges can do whatever they want and the person who wins is mostly determined not by what the law says but by which side has the best lawyers which is mostly a function of much each side spends on their lawyers.

* Family court judges are intentionally or ideologically biased against men.

* Judges are basically umpires with no independent ability to interpret the law in different ways.

* A judge's political philosophy and judicial ideology have no impact on how a judge rules in a case.

* Judicial decisions are purely a matter of legislating from the bench.

* Judge are being dishonest when they utilize "legal fictions."

Dishonesty

* Criminal defense lawyers are bad people who unethically try to make it possible for people guilty of serious crimes to avoid responsibility for their actions by being acquitted at trial of all of the charges against them.

* It is unethical to represent someone you as a lawyer know is guilty or liable for wrongdoing.

* Pleading not guilty in a criminal case when you are guilty is perjury.

* Lawyers are allowed to lie.

* Prosecutors are routinely punished when a court determines that they withheld exculpatory evidence from a criminal defendant in a case.

* Negotiated compromises are dishonest.

* Cops are legally required to tell the truth to criminal suspects.

* Cops almost always tell the truth in court.

* Cops are routinely punished by their employers or a court when a court finds that they violated a criminal suspect's constitutional rights.

* Perjury in court is frequently prosecuted criminally.

* People are more likely to tell the truth when they are under oath or are making a statement under penalty of perjury.

* You can make an evidentiary objection to testimony presented in court on the grounds that the person giving the testimony is lying.

Certainty

* The law mostly involves general principles that can be stated at a high level of generality and logically applied to any new situation.

* If you know the facts of a case with perfect certainty you can know the legal consequences of those facts with certainty. Conceiving of the law as rules rather than standards.

* The law has a clear answer to every hypothetical situation one can imagine.

* Legal questions that don't have clear answers are rare.

* Traffic laws clearly establish that one person is at fault and another person is not at fault in a car accident most of the time.

* Jury trials are highly accurate at reaching outcomes consistent with the true facts and the law.

Arbitration

* Arbitrators have to follow the law based upon the facts presented to them the way that judges do.

* Arbitration awards can be reviewed on the merits in an appeal.

* Arbitration is usually less expensive than going to court.

* Arbitration is usually much faster than going to court.

* Arbitrators are not more biased in favor of one side over the other than judges are.

* You can only be compelled to arbitrate a dispute if you sign a contract agreeing to arbitrate the dispute.

* Only contract disputes are subject to arbitration.

Criminal Justice

* Criminal cases can be filed only if the victim files a complaint with a law enforcement officer.

* People who are released from prison after having their convictions overturned are automatically entitled to substantial compensation.

* People who are acquitted in criminal cases usually receive compensation for their legal fees and the disruption that their lives experienced.

* The police and prosecutors have an enforceable legal obligation to prevent, investigate, and prosecute crimes committed against you, if they can.

* People who commit crimes other than murder are usually caught and punished for their crimes.

* When a criminal law is repealed, people incarcerated for violating that law are routinely released from prison.

* The fact that a witness recants testimony provided in a criminal trial that gave rise to a criminal conviction makes it highly likely that the person convicted will have their conviction vacated and be released from prison.

* Prosecutors routinely cooperate in having wrongful convictions which they secured overturned.

Finality

* Mistaken findings of fact made in a trial can usually be corrected in an appeal.

* Mistakes made in hearings and trials can usually be corrected later, and information provided in hearings and trials can usually be supplemented after the fact. 

The Value Of Legal Training

* Lawyers are mostly charging people for the written documents that they produce.

* Any reasonably literate person can quickly learn what they need to know to effectively act as their own lawyer with a modest amount of self-study on the Internet.

* Doing legal work yourself saves money while also giving rise to few risks.

* Non-lawyers can learn to be competent judges with tens of hours to a couple hundred hours of training.

* When you have a dispute with someone, you can have a lawyer write the person you have a dispute with a letter for a minimal fee or no legal fee and the other person is likely to concede that you are right and cooperate.

* People who win legal disputes usually have their attorney fees awarded to them in the United States.

* A large share of losing lawsuits fit the law's description of a legally frivolous, groundless, or vexatious lawsuit.

The Effectiveness Of The Law And Justice

* The law is self-executing.

* People rarely get away with breaking the law.

* People almost always conform the behavior they would have taken otherwise to what the law requires. The law powerfully influences everyday behavior.

* The law almost always produces fair outcomes, unless someone incompetently makes a mistake in applying it.

* Every wrong has a legal remedy.

* All violations of constitutional rights and obligations have a legal remedy.

* There is always someone who is legally liable for the harm caused by an accident.

Contracts

* Economic pressure is enough to make a contract involuntary and invalidate it.

* Statements made by someone involved in a circumstance that gives rise to a legal case that aren't corroborated in writing aren't "proof."

* Contracts are never binding unless they are in writing.

* Contracts are only binding if you have read them and understood their terms.

Miscellaneous Other Specific Legal Issues

* Obligations to a child depend on the nature of the events that led to the child's conception and the relationship between the parents.

* Children must always take the surname of their father.

* In the United States, illegitimate children can't inherit from their fathers.

* You can't be an intellectual property infringer if you don't make a profit and give credit to the source of the work.

* Bank deposits are basically currency in a safe waiting for you to need to use it.

* Debts for fraud and other willful misconduct are automatically non-dischargeable in bankruptcy without any need for the creditor to take legal action to establish the nature of the debt in the bankruptcy case.

* Non-citizens don't have legal rights.

* The doctrine of "corporate personhood" usually hurts the average person in a legal dispute with a big business.

* People who engage in criminal conduct or civil wrongs in the course of their employment by a corporation are immune from liability for their actions.

* The U.S. Constitution, the Second Amendment to the U.S. Constitution, and the Declaration of Independence create a legal right to overthrow an unjust government.

* Texas has a right to secede from the United States.

We Need A Takings Jurisprudence For All Constitutional Rights

In the extremely conservative 11th Circuit, neither the individual law enforcement officers involved nor the government has any liability in this fact pattern:

Sosa has lived in Martin County, Florida, since 2014. Things did not start well for him there. In November of that year, a Martin County Sheriff’s deputy pulled Sosa over for a routine traffic stop. During the encounter, the deputy ran Sosa’s name through the Office’s computer system. 

The computer told the deputy of an outstanding 1992 warrant issued out of Harris County, Texas, for a “David Sosa” in connection with the wanted Sosa’s conviction for selling crack cocaine. The warrant described the wanted Sosa, including his date of birth, height, weight, tattoo information (he had at least one), and other details. When the deputy went to arrest Sosa on the warrant, Sosa pointed out that his own date of birth, height, and weight did not match the information for the wanted Sosa and that, unlike the wanted Sosa, he had no tattoos. The deputies arrested Sosa, anyway, and took him to the station. 

While detained at the station, Sosa told two Martin County jailers that he was not the wanted Sosa. And he explained that the wanted Sosa’s identifiers differed from his own. Then a deputy fingerprinted Sosa and determined that he was not the wanted Sosa. So roughly three hours after Sosa was initially detained, he was released. 

Three-and-a-half years passed. Then, the same thing happened again—only this time, Sosa was not lucky enough to be released within three hours. On April 20, 2018, a different deputy of the Martin County Sheriff’s Department, Deputy Killough, pulled Sosa over for a traffic stop. When Deputy Killough ran Sosa’s name, he discovered the same 1992 open warrant. Sosa explained that he was not the wanted Sosa and told Deputy Killough he had previously been incorrectly arrested on that warrant and released when deputies realized the error. Sosa again noted that he and the wanted Sosa did not share the same birthdate, Social Security number, tattooed status, or other identifying information. But once again, his explanation did not work; Deputy Killough arrested Sosa and impounded his truck anyway. 

When Deputy Killough took Sosa to the Martin County jail, Sosa “repeatedly explained to many Martin County employees . . . that his date of birth and other identifying information [were] different than the information on the warrant for the wanted . . . Sosa.” Among those Martin County employees were Deputy Sanchez and the other Martin County deputies in the booking area. They wrote down Sosa’s information and told him they would follow up on the matter. 

But Sosa spent the remainder of April 20 in jail. 

The next day, Sosa appeared by video before a magistrate judge. Though Sosa tried to explain the mistaken identity, “several Martin County jailers threatened him and told him not to talk to the judge during his hearing.” As a result, Sosa “thought it was a crime to talk to the judge.” 

Sosa spent the rest of that day in jail. 

And then he spent the next day in jail as well. 

Finally, after detaining Sosa for three nights, deputies fingerprinted him on April 23 and released him in the late afternoon. In the meantime, Sosa missed work and had to pay to retrieve his truck from impoundment.

In a system based on the jurisprudence of 5th Amendment takings, the government whose law enforcement officers arrested Sosa would have liability to Sosa because he was deprived of his liberty and incurred funds to retrieve his truck from impoundment when he was an innocent man and gave the authorities every opportunity to confirm that fact immediately.

But, the law instead imposes liability not on the entity in most cases, but only on its employees, and only in cases where they intentionally violate a well-established constitutional right. So, if the system is broken that that means that someone is deprived of liberty without deserving it, they have no remedy. 

Even if their constitutional rights are intentionally violated, as a result of the court created doctrine of qualified immunity, the victim of this conduct has no remedy unless previous controlling case law had held in a factually similar case that the constitution doesn't permit this conduct. And, since qualified immunity can be invoked before the question of whether a constitutional right have been violated or not comes up, the system intrinsically prevents the scope of constitutional rights of developing naturally in the case law.

This rule of law is unjust and fails to adequately protect the people who most deserve the constitution's protections. It is very doubtful that the Founders would have approved of this approach had they foreseen it.

The dissent argues that even under existing law, Sosa is entitled to relief, stating (emphasis mine, citations omitted):

[T]he factual allegations in Sosa’s complaint must establish two things: (1) the deputies violated his constitutional rights by detaining him for three nights and days on a warrant for a different David Sosa when the deputies knew or should have known that he was not the wanted Sosa; and (2) those rights were “clearly established,” in that “every reasonable official would have understood that what he [wa]s doing violate[d] that right.”

As I explain below, Sosa’s complaint does both.

But, the hurdle was too high in the first place. It should be sufficient to show that Sosa was not the individual wanted in the warrant and that he was detained and forced to incur monetary charges. This ought to entitle him to full compensatory damages and an apology.

This strict liability standard might be high to impose personal liability upon law enforcement officers, but it shouldn't be to high to impose upon the government directing those officers and establishing the systems that led to his wrongful detention.

Should Bankruptcy Spite Exploitive Lenders To Consumers?

The notion that firms who lend more to consumers than they can reasonably repay should not have valid claims in bankruptcy has a certain charm and elegance to it.

Consumer financial protection law is dominated by ex-ante, contract-centered regulatory measures. But these measures largely fail to curb lenders' incentive to lend beyond consumers' ability to repay. 

The Article thus suggests an alternative approach: discouraging lenders from extending loans that cannot be repaid by dismissing the imprudent lender's claims in consumer bankruptcy. 

I argue that regulating underwriting decisions through bankruptcy is normatively desirable because it cuts through the artificial separation between consumer finance law and consumer bankruptcy law. By the same token, it not only overcomes the autonomy and effectiveness concerns attached to traditional consumer finance regulation, but may also enhance the internal coherence of consumer bankruptcy law.

Abigail Faust, Regulating Excessive Credit (Wisconsin Law Review, Forthcoming) on SSRN (December 2022).

Easy Legal Questions That Turns Out To Be Hard

There are some legal questions which sound like they should have easy answer which in fact are complicated and difficult question. Some examples:

1. The law related to trees on or near property lines that overhang the boundary line.

2. The tax and employment law related to remote work.

3. The question of that laws apply to business conducted over the Internet.

Where Did Originalism Come From?

The reality of the history of the originalist movement in legal history, and the myth about its origins are quite different.

Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s.

From here via Fully Myelinated. 

The Independent State Legislature Theory

It is stunning that this fringe theory has at least three backers on SCOTUS and could become law soon. The theory is also contrary to past SCOTUS precedents.

This Essay explores historical evidence from the Founding Era underlying Art. 1, Sec. 4 of the US Constitution (and related clauses) that delegate certain powers to state legislatures in making federal election laws. The article shows that far from empowering the state legislatures, the US Constitution was meant to curb state legislative supremacy and confirm the subordination of state legislatures to the checks and balances embedded in the individual state constitutions. It shows that the Independent State Legislature Theory is contrary to both the theory of constitutional government and the practices of state legislatures in making federal election laws.

Rosemarie Zagarri, The Historian's Case Against the Independent State Legislature Theory Boston College Law Review (March 2023) (Forthcoming).

Related:

The federal judiciary is increasingly fragmented into red courts and blue courts. Democratic presidents overwhelmingly appoint judges in blue states, while Republicans mostly appoint judges in red states.

This is a recent phenomenon; it was much less true even a decade ago.

It is accelerating. And it is likely to corrode both the rule of law and the public’s perception of it. In this Essay I document the phenomenon, explain why it is dangerous, and offer some thoughts on how to fix it.

Mark A. Lemley, Red Courts, Blue Courts on SSRN (2022).

From the body text of Leley's article:

Biden may be shying away from appointing judges in red states because of the strong historical norm that home-state senators get a quasi-veto (called a “blue slip”) over at least district court judge nominations. If a state has two Republican Senators, they may simply not be willing to allow a vote on a Biden nominee. And because all the votes today are so close, they depend on at least one judiciary committee Republican vote and generally one or two floor Republican votes. Losing a couple of Republican votes because the home state senators object might doom the nomination and will at the very least make it harder. 

Blue slips have less power over appellate nominations, which don’t come from a single state. That is one important reason appellate courts are less divided than district courts. (Another is that presidents care more about appellate judgeships and so may be willing to fight harder to appoint people to the appellate courts even in hostile jurisdictions).

The blue slip procedure needs to go. It’s not clear it was ever a good idea to give individual senators that much power. 

But at least in the past it was mostly used to object to particular individuals, or perhaps as a delaying tactic, rather than as a way to prevent appointments from the opposite party altogether.

Sexual Harassment As Theft From The Corporate Employer

This is a fascinating concept that superficially seems attractive, at least as an internal philosophy of the business regarding how to treat these cases. 

But this approach as a basis for rules of law does seem to undermine the theoretical basis for relief for victims of sexual harassment from the offender's employer, on the theory that the harasser is an agent of the company for which it is responsible. Normally, a principal does not have liability for an agent's conduct that is ultra vires. 

A model where the employer and offender are both responsible, and the offender then has a duty to indemnify the employer for the damages it suffered, would seem to better address that issue, even though it aligns the employer and offender against the victim in the first instance, even if the employer's defense of the offender's conduct is temporary. In the context of the article, it isn't clear that the third objection to this theory has really been overcome and accurately describes the likely corporate response.

This article suggests how sexual harassment should be treated by companies as a civil misappropriation, embezzlement, conversion, or theft - as well as a civil rights violation. Additionally, some payments associated with sex-based harassment should be considered corporate waste. 

The misappropriation approach considers not only how sex-based harassment constitutes a civil misappropriation, embezzlement, conversion, or theft, but it also responds to three anticipated objections to sexual harassment as a civil misappropriation: (1) sexual harassment is a minor corporate expense; (2) identification of sexual harassment as civil misappropriation of corporate human assets commodifies targets; and (3) this new concept will change neither corporate responses nor corporate cultures. First in response, sexual harassment is not a minor expense but one that costs companies billions of dollars annually. It is, therefore, in a company’s financial interest to treat the problem as a theft of valuable assets. Second, only corporate failure to recognize the market value of female professional talent dehumanizes people. Almost all human beings engage in work and, men in particular, are valued for their work. Thus, the misappropriation solution puts targets on the same plane as privileged men, valued for their market productivity (as opposed to sexual or reproductive utility). Third, the identification of sexual harassment as a theft, conversion, embezzlement, or misappropriation, as well as a civil rights violation, encourages companies to modify and improve their remedial responses, corporate culture, profitability, and transparency. 

By making corporations and harassment targets potential allies, instead of adversaries, the reconception of sex-based harassment as a misappropriation of corporate human assets incentivizes new collaborations for social and economic justice.

Jennifer Ann Drobac, "The Misappropriation, Embezzlement, Theft, and Waste of Corporate Human and Financial Assets: Sexual Harassment Reconceived" —ABA J. LAB. & EMP. L.— (anticipated 2022).

State Action, State Inaction, Standing, And Individual Rights

The Legal and Political Theory Of Constitutional Rights

Protections From Government Misconduct

U.S constitutional rights, almost without exception, only provide protection against individualized personal harms caused by "state action", i.e. from wrongs fairly attributable to the government.

These protections are imperfect. See, e.g., the City of Greenwood Village case, qualified immunity, the lack of vicarious liability on the part of government employees for constitutional rights they violate in the course of their official duties, the availability of money damages only for intentional violations of constitutional rights (with remedies that are far more limited for rights not articulated in the constitution), undue deference to the testimony and legal stances of government officials, etc.

But, this does not mean that these protections are worthless. Governments pay billions of dollars a year in damages for violations of constitutional rights, and not infrequently change their unconstitutional policies and practices, either under a consent decree in litigation or by court order. Criminal charges are dismissed or reduced for violations of the constitutional rights by law enforcement officials every day that the courts are open, and convictions are reversed for violations of constitutional rights in the criminal justice process on a regular basis even if they don't make up a huge percentage of all convictions. 

While not all wrongs by government actors are remedied, the share of the most serious wrongful government actions that significantly harm particular individuals that are remedied is not negligible. Many people wrongfully convicted of crimes and sentenced to long prison terms or to death are eventually (often painfully slowly) exonerated.

The due process rights afforded to the people routinely prevent or remedy unfair or arbitrary government actions and regulations. Many instances of big dollar harm caused by wrongful government conduct produce economically significant monetary settlements paid by, or judgments against the government, and the government almost always eventually pays all of its legally determined obligations (and vast numbers of legal obligations that are never legally adjudicated as well). In some areas of law, like immigration, the quality of justice provided is lower. In other areas of law, like condemnation of private property for public use, the quality of justice provided (while rarely perfect) is comparatively consistent and adequate.

Protections From Private Misconduct

The theory is that Congress and state governments protect people from wrongs to their individual rights committed by non-state actors and that we rely on the political process to assure that elected officials make this happen, by having legislators pass laws necessary to do so, by having executive branch and judicial branch officials carry out those ordinary laws.

The constitution does not provide protections for you life, liberty, or property from non-governmental actors. It is an international outliner because it does not compel law enforcement to take action to enforce the criminal laws that are on the books for the benefit of any particular individual. See Castle Rock v. Gonzales. It does not guarantee due process when a private party wants to employ self-help to interfere with your property rights or your freedom of speech. 

In many cases, even when the authority of the state is invoked in litigation to enforce a right against a private individual in court, this is not considered "state action" for purposes of determining whether it abridges your constitutional rights in a manner that you have a legal right to enforce.

Most of the time, the system works. The circumstances under which non-constitutional law authorizes self-help without due process or interference with other private person's lives without your consent are few. Most of the time, law enforcement and prosecutors enforce the criminal law to the extent that they are able to do so. Most of the time, when the criminal justice system fails to act. 

When there is a fairly broad consensus on what private conduct should be regulated by law and what due process and other limitations should limit private law and criminal law regulation of that conduct, this isn't a problem and elected officials do the right thing. But as the United States is seeing its normative consensus break down before our eyes, and a willingness to use tactics that earlier generations would have disavowed has emerged, simply relying on the political process to protect private law rights has become increasingly problematic.

The Problem Of Unrestrained Abuses That Government Is Supposed To Prevent

But, the legal and political theory behind the U.S. constitution and the American political economy provides little backstop, apart from the Second Amendment right to bear arms, against individualized harms caused by means other than state action, or by the state's failure to enforce laws that it has a near monopoly right to enforce.

Under U.S. law, the state may, even with ill intention, deny a person the full protections that they are supposed to be afforded to protect their life, liberty and property from harm at the hands of non-state actors. 

The government may decline to provide private causes of action for private violations of an individual's rights that would be actionable deprivations of constitutional rights if the government were the party that deprived an individual of their rights. The government may, without violating the constitution, authorize or prohibit individual acts of self-help that the government could not take itself. 

The government may even, in many cases, allow its courts and the remedies available to enforce court judgments to be used to take actions violating individual constitutional rights that the government could not violate itself, without providing the individual whose rights are violated with a constitutional law remedy, or even, any remedy at all.

Increasingly, government actors are intentionally conspiring with private actors to use these methods to undermine their political opponents, and to carry out policies, in ways that they could not do alone as a result of the U.S. Constitution.

The Unavailability Of Redress For Illegal Governmental Operations 

Individual Constitutional Rights

The most of the litigation involving the United States Constitution involves individual rights that it establishes and regulates, primarily involving the First, Second, Fourth, Fifth, Sixth, Seventh, Eight, Eleventh, Thirteenth, and Fourteenth Amendments to the United States Constitution. The first ten amendments were added in 1791, with the 11th Amendment adopted not long afterwards and the 13th and 14th Amendment adopted not long after the U.S. Civil War.

A few provisions of the pre-amendment United States Constitution of 1789 also establish or regulate individual rights that give rise their utilization in litigation: the powers of Congress in Section 8, the powers denied to Congress in Section 9, and the powers denied to the states in Section 10 of Article I, he jurisdiction of the federal courts, the jury trial and venue requirements for federal crimes, and the definition of treason in Article III, the full faith and credit clause, the privileges and immunities clause, and the extradition process in Article IV, and the Supremacy Clause of Article VI.

There are a variety of ways that someone harmed by a violation of their individual constitutional rights can seek remedies, the most common of which are (1) a suit under 42 U.S.C. § 1983 for damages caused by an intentional violation of a constitutional right under color of state law, (2) a direct appeal of a criminal conviction on the grounds that it was obtained in violation in a constitutional right after that right was invoked by a convicted defendant in a trial court proceeding in a criminal case, (3) a writ of habeas corpus asserting that someone is detained under color of state law under a manner that is unconstitutional, and (4) an action for a writ of mandamus, an injunction, or declaratory judgment that clarifies that some sort of state action in unconstitutional and insisting the the government act properly. This list isn't exhaustive, but it covers the main remedies.

Other Aspects Of The Constitution

The remainder of the United States Constitution of 1789, and the remaining seventeenth amendments to the United States Constitution, relate to the political and electoral process, has been repealed, clarifies default principles of interpretation that are rarely expressly invoked (the Ninth and Tenth Amendments), or provide for situations (domestic quartering of soldiers in private property under the 3rd Amendment, and the Republican government clause) that almost never arise and are to some extent redundant. 

In most cases, however, the doctrine of "standing to sue" limits the extent to which these parts of the Constitution can be litigated in court because an ordinary citizen with no particularized harm from violations of these parts of the constitution other than as a citizen, a voter, or a taxpayer, similarly situated with everyone else, is prohibited from enforcing these legal requirements in court. 

The main enforceable protected individual right under this part of the constitution is the individual right to vote. But, because everyone is often equally harmed, for example, by improper government spending or misapplications of the political process, the end result is often that violations of these aspects of the law can be carried out with impunity.

Also, even when someone has standing to seek to redress misconduct in government operations, the violations are often considered to be non-justiciable, for example, because they are "political questions" or because the person engaging in misconduct has some sort of absolute or qualified immunity from liability for the conduct in question.