The Promise and Perils of Private Enforcement
63 Pages Posted: 19 May 2022 Last revised: 11 Jan 2023
Date Written: May 17, 2022
A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent with their gender identities, and against schools that permit transgender students to play on sports teams consistent with their gender identities. Similar laws permit people to bring enforcement actions against schools that teach critical race theory and against those who sell restricted firearms. State legislatures are considering a host of laws modeled on these examples, along with other novel regimes. These are new adaptations of private enforcement regimes—laws that task members of the public with enforcing regulatory statutes in court. Private enforcement has a somewhat long lineage in U.S. law, dating back to at least the nineteenth century. Since then, in contexts as diverse as employment discrimination, housing discrimination, antitrust, securities, and other contexts, the U.S. legal system has endowed members of the public with the power to enforce regulatory law in court. While these traditional forms of private enforcement have been relatively stable and survived legal challenges, the new adaptations cropping up have prompted challenges in court and intense debate. Among other things, scholars argue that they amount to a form of legal vigilantism, suppress existing legal rights, and pose due process concerns in their design. Yet, to fully distinguish between private enforcement’s traditional forms and these new variations, we need a richer account of the meaning and role of private enforcement in democracy.
This Article provides such an account, analyzing and distinguishing private enforcement regimes through the lens of a participatory democracy theory of regulatory governance. Drawing on debates and thinking at the dawn of the modern regulatory state, this Article argues that private enforcement is democratically valuable when it (1) evens out structural power disparities that can undermine democracy, (2) enables members of the public to bring the expertise of experience to dynamic regulatory environments, and (3) facilitates democratic deliberation. This Article argues that traditional private enforcement suits generally contribute to democratic governance under each rationale. In contrast, the new private enforcement suits perform less well, and indeed, often undermine the rationales for popular participation in regulatory governance. This Article thus articulates a richer theory of popular participation in regulatory governance that shows the promise of private enforcement generally and the perils of recent adaptations.
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