Private Law Theory

ABSTRACT
When we think of the law of terrorism, we think of the state and the terrorists. We think of the many steps that states take to detect, deter, and destroy terrorist groups. But that frame captures only a small piece of the overall picture of terrorism regulation. Regulation directed at and shaped by terrorism policy has inserted itself into many facets of private life. These interventions distort private law in predictable ways. These interventions are always presented as exceptions: terrorism is different, so they say. But these exceptions are generative. Terrorism has become the testing ground for new and different ideas about how to regulate private conduct – ideas that have a tendency to spread beyond the borders of terror policy.

This article examines disparate areas of US law, each of which has been shaped by terror regulation. In tort, civil procedure, and banking, terror regulation has distorted the background principles guiding the intervention of law in private conduct. In tort law, terror regulation has led to a profound loosening of causation requirements, based on import of concepts from criminal law into civil liability. In civil procedure, federal statutes have expanded the power of courts to hear private terror suits and curbed the discretion of courts to stay or dismiss them. In banking law, terror regulation has led to a dramatic expansion of know-your-customer laws, as well as a persistent private litigation against multi-national banks …

Simowitz, Aaron D, The Private Law of Terror (November 29, 2021). Penn State Law Review, volume 126, no 159, 2021.

First posted 2022-02-10 16:00:29