Private Enforcement in the States

78 Pages Posted: 25 Feb 2023 Last revised: 22 Jun 2023

See all articles by Diego A. Zambrano

Diego A. Zambrano

Stanford University

Neel Guha

Stanford University

Austin Peters

Stanford University

Jeffrey Xia

Stanford University

Date Written: February 20, 2023

Abstract

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress deliberately empowered private plaintiffs instead of, or in addition to, government agencies. Yet, despite the vast importance of private enforcement at the federal level, we have no account of how prevalent private rights of action are in state law. And this question is particularly pressing now that a range of states—triggered by the Texas abortion law S.B.8.—are using private enforcement to weaken constitutional rights. Is private enforcement a way of governance in the states or just at the federal level? If it exists, are there important differences? What political conditions lead to their adoption? And why does it exist?

In this Article, we conduct the first systematic empirical investigation of the hidden world of state private enforcement. Using computational-linguistics and machine learning, we identify private enforcement provisions across a unique dataset of all states’ laws going back to 2000 (for all 50 states). Our results show that private enforcement is ubiquitous at the state level. Even by conservative estimates, there are more than 3,500 private rights of action provisions in state law, ranging from traditional areas like antitrust and employment, all the way to privacy violations, lawsuits against police, grave-digging, veterinary care, and waste disposal. Counterintuitively, private enforcement provisions are expanding the most in states like Utah, New Hampshire, Connecticut, Nebraska, and Wisconsin. Much of the growth in private enforcement is concentrated in areas affecting businesses, labor, the environment, and taxes. One takeaway from these results is that state private enforcement is strikingly different than the federal system—sprawling, messier, and even chaotic.

We also use our data to test conventional theories of private enforcement adoption. The most prominent one—the separation of powers theory—posits that Congress enacts private rights of action when the executive is controlled by another political party. Our empirical bottom line, based on regression analyses, is that we fail to find evidence in favor of any of the theories, including separation of powers. We even find no correlation between an increased adoption of private enforcement and legislative control by Democrats or Republicans. It appears the political economy of private enforcement in the states diverges radically from the federal government. With an eye toward future theorizing and empirical testing, we put forth three institutional differences between the states and federal government that may explain this divergence. And we sketch a future comparative research agenda focused on studying federal-state divergence. Reaffirming the central role that private enforcement plays in our system reveals the need to reorient civil procedure and incorporate state private rights of action more explicitly into its core teachings.

Keywords: Empirical Legal Studies, Civil Procedure, Federal Courts, State Courts, Private Enforcement, Litigation State, Machine Learning

Suggested Citation

Zambrano, Diego and Guha, Neel and Peters, Austin and Xia, Jeffrey, Private Enforcement in the States (February 20, 2023). University of Pennsylvania Law Review, forthcoming, Available at SSRN: https://ssrn.com/abstract=4365144 or http://dx.doi.org/10.2139/ssrn.4365144

Diego Zambrano (Contact Author)

Stanford University ( email )

Stanford, CA 94305
United States

Neel Guha

Stanford University ( email )

Stanford, CA
United States

Austin Peters

Stanford University

Jeffrey Xia

Stanford University

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
338
Abstract Views
1,164
Rank
164,092
PlumX Metrics