Saturday, April 23, 2011
Maria Glover, currently a Climenko Fellow at Harvard, has posted the abstract of her article, The Structural Role of Private Enforcement in Public Law, on SSRN. Although I haven't seen the piece yet, the abstract raises significant questions about the role of private attorneys' general in an disaggregated regulatory system and the article looks like a worthwhile read. Here's the abstract:
The American regulatory system is unique in that it relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with the traditional conception of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation is part of the structure of the modern administrative state. Private enforcement and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it.
Yet these mechanisms today are being restricted in numerous ways, and on numerous fronts, in the form of judicial and legislative efforts to reform substantive tort law, prohibitions on the use of the class action device, the recalibration of procedural mechanisms through private contract to discourage suit, and pre-emption of state law causes of action, just to name a few. These types of restrictions, however well-intentioned, threaten to undermine substantive regulatory law, yet little thought has been given to the systemic consequences of these reform efforts. In fact, as this Article posits, these efforts raise ‘quasi-constitutional’ concerns that derive from fundamental precepts of our representative government - concerns that, once appreciated, can help set sensible boundaries on reform.
This Article then provides a conceptual framework for designing appropriate mechanisms of enforcement in light of the contours of particular regulatory regimes. This framework seeks to effectuate and extend the systemic interests in aligning private enforcement mechanisms with the regulatory goals of particular areas of substantive law, and at the same time seeks to balance the value of such mechanisms with concerns that they will generate undesired regulatory consequences by suggesting mechanisms, not yet in existence, that address potential pathologies. In doing so, this framework replaces current, one-size-fits-all approaches to a number of seemingly disparate debates across our legal landscape, including those regarding restrictions on private mechanisms of enforcement, with one that seeks to align private enforcement mechanisms with the needs of various regulatory schemes. By offering sounder analysis of, and adding conceptual clarity to, these various debates, this framework offers the hope of eventual resolution of these seemingly intractable disputes. More fundamentally, this framework will help judges and legislatures better design mechanisms to enable private regulation to serve well its structural role in the American system.