Citations (1)


Footnotes (104)



Risk Regulation and Regulatory Litigation

Patrick Luff

Luff Law Firm, PLLC; University of Oxford - Faculty of Law

March 10, 2011

Rutgers Law Review, Vol. 64, p. 73, 2011
Oxford Student Legal Studies Paper No. 10/2011

Since at least the 1960s, when Congress enacted civil rights statutes that provided for private enforcement, courts have been hotbeds of public policy. Only recently, however, has this phenomenon been recognized for what it is: courts have become essential actors in the regulatory state. What little scholarship there is on the use of courts to achieve regulatory ends is often heavy on rhetoric, but short on theory. While commentators have been quick to criticize the phenomenon of regulatory litigation, they have done little to determine what it actually is. As a result, the young field of regulatory litigation lacks fundamental theoretical discussions necessary for the fruitful development of the field. This article fills the gaps in the theoretical literature in three ways. First, this article presents the theory that regulatory litigation has developed to address the gaps between socially demanded levels of risk regulation and the amount of risk protection actually provided by the state. Second, this article collects and analyzes the scholarship to date that attempts to find the line that divides regulatory from non-regulatory litigation, and explains how and why previous definitions of regulatory litigation have fallen short. Finally, this article presents a theoretical discussion of the nature of regulatory litigation that distinguishes between top-down regulation through statutory promulgation and bottom-up regulation that occurs through the remedial choices made by litigants and judges.

Number of Pages in PDF File: 43

Open PDF in Browser Download This Paper

Date posted: March 10, 2011 ; Last revised: July 8, 2013

Suggested Citation

Luff, Patrick, Risk Regulation and Regulatory Litigation (March 10, 2011). Rutgers Law Review, Vol. 64, p. 73, 2011; Oxford Student Legal Studies Paper No. 10/2011. Available at SSRN: http://ssrn.com/abstract=1782852

Contact Information

Patrick A. Luff (Contact Author)
Luff Law Firm, PLLC ( email )
1350 Bandera Hwy.
Suite 803
Kerrville, TX TX 78028
United States
(512) 710-6830 (Phone)
HOME PAGE: http://www.lufflaw.com
University of Oxford - Faculty of Law ( email )
St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom
Feedback to SSRN

Paper statistics
Abstract Views: 1,761
Downloads: 368
Download Rank: 52,968
Citations:  1
Footnotes:  104

© 2015 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.578 seconds