Deregulation and Private Enforcement

Abstract

Many conservatives oppose much of the administrative state. But many also oppose much of our private enforcement regime. This raises the questions of whether conservatives believe the marketplace should be policed at all, and if so, who exactly should do that policing? In this Essay, based on my new book, The Conservative Case for Class Actions, I take a deep dive into conservative principles to try to answer these questions. I conclude that almost all conservatives believe the marketplace needs at least some legal constraints, and I argue that ex post, private enforcement is superior to the alternatives. Not only is private enforcement the right answer as a matter of theory, but I believe that conservatives need private enforcement as a practical matter if they wish to make progress on their agenda to roll back the administrative state.

Keywords: class actions, conservative, private enforcement, regulation, administrative law, libertarian