Check it Out: Pfander on Judicial Review of Unconventional Enforcement Regimes

James E. Pfander recently posted Judicial Review of Unconventional Enforcement Regimes. (Check this out along with Wasserman and Rhodes's piece.) Here's the abstract:

The Supreme Court’s decision in Whole Woman’s Health v. Jackson seriously complicates judicial review of unconventional private enforcement schemes. Announced in December 2021, before the leak and eventual publication of the Dobbs decision, WWH studiously declined to block the effectiveness of the Texas Heartbeat Act, S.B. 8, citing a reluctance to allow injunctive relief against state courts and judges. As a result, parties threatened with bounty-based private enforcement akin to that in S.B. 8 will struggle to secure an effective federal test of the constitutionality of state restrictions. The WWH framework encourages more states, both red and blue, to use unconventional private enforcement regimes to limit pre-enforcement review.

Legal scholarship on unconventional regimes like S.B. 8 has yet to consider the writ of prohibition as a vehicle for judicial review. This Essay puts the WWH decision into conversation with the forms of inferior-court supervision available through the common law writ of prohibition. Prohibition empowers superior courts to block lower courts from exercising authority over matters outside their jurisdiction. Among its other features, prohibition operates directly on lower courts and their judges, threatening them with the injunctive relief that WWH deemed improper in an Ex parte Young action. Prohibition thus offers one answer to the judicial-power concerns that derailed the WWH litigation and a foundation for a broader vision of federal judicial oversight of unconventional enforcement schemes.