On November 5, 1996, the people of California passed Proposition 209 in an initiative election, which subsequently led to the addition of article 1, section 31 to the California Constitution.1 That provision prohibited various state actors from "discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."2 In 1998, the people of the State of Washington passed a similar provision, known as 1-200, in a similar referendum, which led to a new section being added to that state's statute books.3 In 2006, the people of the State of Michigan passed another similar provision, Proposal 2, which led to the addition of article 1 , section 26 to the Michigan Constitution.4 Finally, the Nebraska polity passed Initiative 424 in 2008, which added article 1, section 30 to the Nebraska Constitution.5
Each of these popularly enacted provisions, which for ease of reference I will refer to as anti-preference laws, were deemed to prohibit race-conscious decisionmaking by the state that might be permitted under federal law, including the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.6 That is not the feature that this Article focuses on, however. Rather, it focuses on the fact that these laws generally can be enforced in state court by private individuals in civil lawsuits seeking damages and other kinds of relief. As a consequence, when these provisions have been challenged in federal court as a violation of federal law in a pre-enforcement challenge, there is an obvious problem. Precisely who should be sued? That there is no obvious answer to this question - and that the absence of an obvious answer creates difficult jurisdictional problems - is the issue that this Article addresses. The questions about jurisdiction all revolve around the same basic fact: these laws are not, by and large, enforced by the executive branch of state government and even when they are, the primary tool of enforcement is still lawsuits brought by private individuals in which state judges enforce the law. And there is not a great deal that a lower federal court can do to restrain the behavior of unknown private individuals and state court judges.
Of course, the anti-preference laws are not the only privately enforceable laws out there. Many standards of behavior are set by "privately-enforced" laws, i.e., laws that can be enforced in a lawsuit brought by a private citizen. Defamation lawsuits under state common law7 and lawsuits alleging misstatements in violation of section 1 1 of the Securities Act of 1933 8 are just two of many examples one could list. The same jurisdictional problems would arise were the constitutionality of these laws challenged in a pre-enforcement proceeding. As a general rule, they are not challenged in preenforcement proceedings, but rather by defendants sued for damages.9
Part I of this Article sets forth the relevant provisions of the anti-preference laws and the usual arguments that are used to claim that such laws violate federal law. I do not assess those arguments in any great detail. (That is, whether those arguments would be successful if asserted by defendants in a case alleging that they violated an anti-preference law is not something addressed at length here.) In Part ?, I review more carefully the enforcement provisions of the anti-preference laws, and consider the problems with the two injunctions that have been issued so far by federal judges in cases challenging anti-preference laws. In Part ??, I address the basic jurisdictional doctrines that present obstacles to challenges to privately enforceable laws being heard in federal court.
In Part IV, I consider the application of these jurisdictional doctrines to the antipreference laws, examine various possible defendants that can be sued in federal court, and explore the problems that each presents given the jurisdictional doctrines at issue. …