Remedy Becomes Regulation: State Making After the Fact
NYU School of Law, Public Law Research Paper No. 24-35
DePaul Law Review, Forthcoming
34 Pages Posted: 18 Jun 2024
Date Written: June 18, 2024
Abstract
In response to mass harms in recent decades—toxic chemicals, oil spills, exploding car parts, and drug defects—court-based remedies are used to construct indispensable components of the administrative state. According to a conventional vision of the separation of powers, Congress is tasked with designing the institutions of our government beyond the Constitution’s bare bones. Under this understanding, ex post, private institutional design seems like a radical departure. But for three decades, it has played a critical, if largely unsung, role in shaping the expression of state power. At least by default, Congress has delegated its state-making function to litigants and courts.
Whether through high-stakes constitutional litigation or the power of aggregation, private claims now provide the forum to address central challenges within American public life. Others have explained how public law litigation can itself serve as a form of administration, filling enforcement and deterrence functions that are crucial elements of state power. But we show how the remedial programs that litigants design—and courts endorse and enforce—are now used to create administrative institutions. Built after the fact and designed in the give and take between expert repeat players from the plaintiffs’ and defense bar, these institutions fill gaps in the landscape of state power. Acting as an addendum to the state, private institutions correct for failures of legislative and executive power in the face of modern mass market crises.
Institutions created by settlements in the mass litigation context are channeling billions of dollars around the country—both to individuals and to state and local governments—and shaping the form and direction of our nation’s response to many of its most intractable catastrophes. The remedies themselves have become an important form of regulation and administration.
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