I read and much enjoyed—and highly recommend—my Stanford colleague Diego Zambrano's book, How Americans Enforce the Law.
asserted
Americans → read → Law
He was kind enough to write up for us this post that captures the core of his argument, and I'm delighted to pass it along (though I encourage people to read the whole book):
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I → write → book
The headlines are full of stories about a federal government retreating from enforcement.
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government → retreat → enforcement
Agencies are dropping investigations, abandoning regulations, shrinking staffs and changing enforcement priorities.
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Agencies → drop → priorities
The next week, the SEC and CFPB wind down investigations into securities fraud and wrongdoing affecting consumers.
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SEC → wind → consumers
Critics fear that the Department of Justice's antitrust division will overlook mergers when it is convenient for the administration.
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it → fear → administration
And the DOJ has abruptly reduced enforcement of the Foreign Corrupt Practices Act.
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DOJ → reduce → Act
Facing these changes, Americans might worry that a wide range of laws will go unenforced.
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range → face → laws
But that concern misses something unique about the American system of government.
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concern → miss → government
We have never relied only on bureaucrats to enforce our laws.
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We → rely → laws
All the way back to the colonial period, American legislators have repeatedly done something unusual: they have given ordinary people the right to sue alongside government officials.
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they → do → officials
In almost every regulatory area that most Americans care about—be it regulation of wages and hours, environmental pollution, consumer protection, or securities fraud—statutes allow both government officials and private parties to file suit to enforce the law.
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officials → care → law
All of this happens through little-known provisions called "private rights of action," which is just a technical name for a right to sue.
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which → happen → right
Thousands of these provisions build a second enforcement system alongside the bureaucracy, turning employees, consumers, competitors and their lawyers into co-enforcers of public law.
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Thousands → build → law
In much of the rest of the world, whenever a government faces a regulatory problem, it typically empowers government officials and bureaucrats to police legal violations.
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it → face → violations
In France, Germany, Japan, and even the UK, legislators are far less likely to let anyone sue over, say, environmental pollution or employment discrimination.
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anyone → let → pollution
In 1989, the United States faced the Exxon Valdez oil spill off the pristine waters of Alaska.
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States → face → Alaska
Millions of gallons of oil laid waste to coasts, waters, and fisheries for hundreds of miles.
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Millions → lay → miles
What most Americans don't know is that a decade later, France also faced a catastrophic oil spill, caused by a ship called the Erika.
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France → know → ship
So how did governments react?
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governments → react → ?
In the United States, private plaintiffs sued Exxon directly under existing tort and maritime law, eventually winning substantial damages.
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plaintiffs → sue → damages
Congress, meanwhile, enacted a statute called the Oil Pollution Act with a new right-to-sue those responsible for oil spills.
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Congress → enact → spills
By contrast, in France, the oil spill led primarily to a major criminal prosecution and, eventually, to new national and European regulatory measures (including a new bureaucracy called the European Maritime Safety Agency).
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spill → lead → bureaucracy
When France finally adopted a right to sue in 2016, it paled in comparison to the American version.
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it → adopt → version
Part of the answer, as I argue in a new book, is that Americans have always done this.
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Americans → argue → this
Back in the colonial period, state legislatures adopted what they called "penal statutes," that empowered any person to enforce regulatory statutes and collect a bounty.
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that → adopt → bounty
So when Massachusetts wanted to regulate the storage of gunpowder, it allowed private informers to sue neighbors who stored it improperly.
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who → want → it
And this model applied across many areas of colonial life: alcohol consumption, trade, taxation, public morals, church attendance, and more.
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model → apply → life
The Founders used the same tool across the board: Thomas Jefferson and James Madison co-wrote Virginia statutes full of penal statutes, and John Adams handled these suits routinely as a colonial lawyer.
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Adams → use → lawyer
The key feature of this system is that even though private parties file suit for their own aims—the employee wants their full wages paid or the consumer wants a refund for a shoddy product—they inevitably enforce the law.
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they → file → law
And those lawsuits benefit everyone else because employers and manufacturers may change their behavior with respect to other employees and consumers.
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employers → benefit → employees
In that sense, every single plaintiff is a little bureaucrat or, as some courts call them, a "private attorney general."
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courts → call → them
This system has the added benefit of reducing political disruptions in enforcement.
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system → have → enforcement
Even though any single administration can change the enforcement priorities of the EEOC, SEC, CFPB, or Department of Justice, the president cannot control thousands of lawyers and their clients.
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president → change → lawyers
Private enforcement, then, makes enforcement less dependent on what the bureaucracy and president want.
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bureaucracy → make → what
So you might think that when the bureaucracy won't pursue wrongdoing, the obvious solution should always be new rights to sue.
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solution → think → wrongdoing
Indeed, many news stories decrying a lack of government enforcement immediately call for more private lawsuits.
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stories → decry → lawsuits
Private enforcement is not tailor-made for every regulatory area.
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enforcement → make → area
It makes the most sense to empower private parties when the bureaucracy is truly faulty, under-resourced, politically vulnerable, or likely to be captured by regulated entities.
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bureaucracy → make → entities
When this isn't the case, private enforcement can cause more problems than it solves.
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it → cause → problems
…and 13 more, not listed.
The Aporia
