Towards Optimal Enforcement

13 Pages Posted: 29 May 2019

See all articles by Kent H. Barnett

Kent H. Barnett

University of Georgia School of Law

Date Written: April 2, 2019

Abstract

In Private Enforcement in Administrative Courts, Professor Michael Sant'Ambrogio argues that a hybrid private/public enforcement model in agency proceedings may provide the best hope of achieving optimal federal law enforcement. In other words, a blunderbuss approach of choosing public enforcement or private enforcement (whether in judicial or agency proceedings) is unlikely to prove ideal. He identifies various tools--such as agencies' role in the review or initiation of proceedings, or the use of class-wide proceedings--that Congress or agencies can use to calibrate agency enforcement to its optimal design. I consider three additional tools that may optimize enforcement goals with hybrid public and private enforcement, whether inside or outside of administrative proceedings: (1) statutorily-mandated primary jurisdiction, (2) enforcement in either judicial or agency proceedings by state authorities, and (3) limits on federal preemption of concurrent state-law private causes of action.

Keywords: administrative law, agency, enforcement, public enforcement, private enforcement, primary jurisdiction, preemption

Suggested Citation

Barnett, Kent Harris, Towards Optimal Enforcement (April 2, 2019). 72 Vand. L. Rev. En Banc 127, University of Georgia School of Law Legal Studies Research Paper No. 2019-13, Available at SSRN: https://ssrn.com/abstract=3368257

Kent Harris Barnett (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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