Interpleader as a Vehicle for Challenging the Constitutionality of Private Citizen Action Statutes

December 1, 2023

The rise of vigilante-esque statutes creates obstacles for litigants seeking to challenge a statute’s constitutionality.  State legislatures in Texas and California enacted laws regulating constitutionally protected activity (abortion and firearm possession, respectively) through statutes enforced solely by private actors.  The state legislatures cleverly crafted Texas S.B. 8, as well as other copycat statutes, as bounty‑hunter statutes to block litigants’ usual path to pre-enforcement adjudication—filing a claim against the state to enjoin its actors from enforcing the improper provisions.

The Texas and California state legislatures attempted to forbid constitutionally protected conduct by granting enforcement power to an infinite number of individuals.  This grant, in turn, generated a risk of multiple liability for noncomplying individuals.  This Note considers whether interpleader, an archaic procedural device designed to protect against multiple liability, can be invoked in a new way—to challenge the validity of bounty-hunter statutes by establishing a right to adjudication in federal court.

December 2023

No. 3