Published on March 25, 2026

Professor Charles W. “Rocky” Rhodes and his frequent co-author, Professor Howard M. Wasserman from the Florida International University College of Law, presented the luncheon address at the Georgia Law Review Symposium on Polarized Courts: The New Private Enforcement.

Professor Rhodes and Wasserman were invited to discuss their series of five co-authored articles on exclusive private enforcement schemes. These schemes seek to stymie judicial review and to chill the exercise of constitutional rights by prohibiting government officials from enforcing a law that is constitutionally invalid or of dubious constitutional validity in favor of private civil actions brought by “any person,” regardless of injury. This prevents the typical route of pre-enforcement constitutional challenges in federal court under Ex parte Young through a suit against the government official charged with enforcing the law since there is no government official to sue who can enforce the law.

Their articles together identify other offensive litigation options to challenge such laws in federal court, notably by suing the private plaintiffs who enforce these laws and thus act under color of state law. Their articles also discuss defensive litigation options for challenging such laws on state and federal constitutional grounds in state courts. Recent articles in their series, such as Judicial Process and Vigilante Federalism, discuss additional forms of exclusive private enforcement schemes and the procedural mechanisms available to challenge each one.