60 Pages Posted: 17 Mar 2016 Last revised: 27 Apr 2016
Date Written: March 16, 2016
American democracy has never settled on a single metric of legitimacy for government action. Instead, across a range of government functions, we balance goals of accountability, representation, and responsiveness with complementary values of independence, expertise, consistency, and predictability. We tend to emphasize accountability when government acts in a legislative or regulatory capacity, while celebrating independence in the context of adjudication. Yet, for all the attention that has been heaped on these topics, scholars and policymakers have failed to attend to the function that connects law-making and law-application: enforcement.
Focusing on the civil side of the civil/criminal divide, this Article develops a theory of public enforcement with important implications for both accountability and independence. Enforcement is a form of discretionary policymaking, necessitating the same sorts of wide-ranging policy judgments that characterize law-making — and triggering similar demands for accountability and transparency. But enforcers also must make individualized legal determinations of the sort we associate with judging. The similarity to adjudication suggests that accountability must be tempered by measures designed to foster the exercise of neutral and independent judgment. Perhaps paradoxically, some insulation from public pressures may be necessary in order for public enforcement to serve the public interest.
If the argument here is even close to correct, then we are getting things badly wrong. Leveraging the analogies to lawmaking and adjudication, I show that the tools we have developed in other contexts to manage accountability and independence are at best weakened, and at worst wholly inapplicable, when it comes to enforcement. Under existing law, enforcement is neither meaningfully accountable nor meaningfully independent.
Suggested Citation: Suggested Citation
Lemos, Margaret H., Accountability and Independence in Public Enforcement (March 16, 2016). Duke Law School Public Law & Legal Theory Series No. 2016-23. Available at SSRN: https://ssrn.com/abstract=2748720 or http://dx.doi.org/10.2139/ssrn.2748720