Private Enforcement of Statutory and Administrative Law in the United States (and Other Common Law Countries)

Abstract

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement in the United States. We also set forth key elements of the general legal landscape in which decisions about private enforcement play out, aspects of which should be central to the choice of an enforcement strategy and, in the case of private enforcement, are critical to the efficacy of a private enforcement regime. We then turn to the business of institutional architecture, describing the considerations - both in favor of and against private enforcement - that should affect the choice of an enforcement strategy. We lay out choices to be made about elements of a private enforcement regime, attending to the general legal landscape in which the regime would operate, particularly court access, as well as how incentives for enforcement interact with the market for legal services, which has important implications for private enforcement activity. We situate these legislative choices about private enforcement in the context of institutions that shape them. Finally, we seek to demonstrate how general considerations play out by examining private enforcement in two policy areas: legislation proscribing discrimination in employment, and laws protecting consumers from unfair and deceptive practices. A long appendix containing our questionnaire addressed to scholars in other countries, with the respondents’ answers interpolated, has been omitted but is available online.

Keywords: Administrative law, politics, practice and procedure, regulation, delegation, compliance, structure of private enforcement, common law, enforcement regimes, employment discrimination law, consumer protection legislation