Private Enforcement

88 Pages Posted: 15 Sep 2013

See all articles by Stephen B. Burbank

Stephen B. Burbank

University of Pennsylvania Law School

Sean Farhang

U.C. Berkeley Law School

Herbert M. Kritzer

University of Minnesota Law School

Date Written: Fall 2013

Abstract

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, 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. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, 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.

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

Suggested Citation

Burbank, Stephen B. and Farhang, Sean and Kritzer, Herbert M., Private Enforcement (Fall 2013). Lewis & Clark Law Review, Vol. 17, P. 637, 2013; U of Penn Law School, Public Law Research Paper No. 13-22; Minnesota Legal Studies Research Paper No. 13-46. Available at SSRN: https://ssrn.com/abstract=2325579

Stephen B. Burbank (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Sean Farhang

U.C. Berkeley Law School ( email )

694 Simon Hall
Berkeley, CA 94720
United States

Herbert M. Kritzer

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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