The Structural Role of Private Enforcement Mechanisms in Public Law

ABSTRACT The American regulatory system is unique in that it expressly relies on a diffuse set of regulators, including private parties, rather than on a centralized bureaucracy for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is integral to the structure of the modern administrative state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it. Yet, mechanisms of enforcement attendant to private suits are being restricted in numerous ways, and on numerous fronts, in the form of prohibitions on the use of the class action device, the recalibration of procedural mechanisms through private contract to discourage suit, the heightening of pleading standards, and the preemption of state law causes of action, just to name a few. Although in some instances these restrictions may provide necessary correctives to the system of private litigation in particular and to the functioning of overall regulatory schemes more generally, in their broad-sweeping forms, they threaten to systematically undermine substantive regulatory law. Yet the larger regulatory consequences of these efforts receive inadequate attention. This Article thus offers a more systemic view of these private enforcement mechanisms by providing elements of a conceptual framework for tailoring mechanisms of private enforcement to the contours of particular regulatory regimes. This framework seeks to effectuate and extend the systemic interests in aligning private enforcement mechanisms with the regulatory goals of particular areas of substantive law. At the same time, it seeks to balance the value of such mechanisms with concerns that they will, in some substantive regimes, generate undesired regulatory consequences. Indeed, this framework highlights the need, in some instances, for limitations on the use of private enforcement mechanisms, as well as the need, in other circumstances, for the creation of new mechanisms that are more carefully calibrated to address potential pathologies. This framework is therefore preferable to one-size-fits-all, abstract approaches to a number of seemingly disparate debates regarding restrictions on private enforcement mechanisms across our legal landscape. By offering sounder analysis of, and adding conceptual clarity to, various debates about these mechanisms, this framework offers the hope of eventual resolution of these seemingly intractable disputes. This framework also seeks to provide guidance to judges, agencies, and legislatures in the task of tailoring mechanisms of private enforcement to achieve public regulatory objectives. TABLE OF CONTENTS INTRODUCTION I. THE AMERICAN SYSTEM OF DIFFUSE REGULATION: PRIVATE LITIGANTS AS REGULATORS A. A Brief History of the Role of Private Enforcement in the American Regulatory State B. The Functional Role of Private Enforcement in the American Regulatory State 1. Private Litigants as Primary Regulators 2. Private Litigants as Supplementary Regulators II. EFFORTS TO CURTAIL MECHANISMS OF PRIVATE ENFORCEMENT A. Tort Reform Efforts B. Restrictions on the Class Action Device C. Procedural Private Ordering to Discourage Suit D. Heightened Pleading Standards E. Preemption of State Law Claims III. A CONCEPTUAL FRAMEWORK FOR INTEGRATING PRIVATE MECHANISMS OF ENFORCEMENT INTO REGULATORY REGIMES A. Allocating Enforcement Mechanisms to the Regulator with Superior Information B. Tailoring Private Enforcement Mechanisms to Remedial Gaps and Remedial Overkill C. Preserving Private Claims When Needed to Address Harm that Tends Not to Be Prevented by Ex Ante Regulation D. …