Public-Private Co-Enforcement Litigation

By Stephanie Bornstein. Full Text.

Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations. Existing scholarship details the relative advantages of these separate and parallel public or private enforcement options. Yet scholars have paid little attention to their beneficial overlap. This Article argues that recent restrictions on both halves of hybrid enforcement systems now jeopardize adequate levels of civil public law enforcement, requiring a new approach.

By design, hybrid federal statutes included financial incentives to encourage private enforcement to supplement the efforts of resource-constrained public agencies. Over time, concerns that profit-motivated plaintiffs’ attorneys were failing to serve the public interest sparked litigation reform efforts to reign in class actions. When combined with recent jurisprudence compelling arbitration and intensifying pleading standards, access to federal courts for private enforcers has become seriously restricted. As a result, scholars have called on public agencies to expand oversight of plaintiffs’ attorneys and fill enforcement gaps where private enforcement is now foreclosed.

Yet the same deregulatory instincts that sparked reforms in procedural jurisprudence have also afflicted federal agency enforcement. While civil litigation scholars focused on developments in the courts, a concerted political effort sought to cabin administrative authority and limit agency action. The result has been a seismic shift toward smaller federal government, dashing hopes that public enforcers will be able to pick up the civil enforcement slack any time soon. As much as civil litigation reforms have restricted private enforcement, a new era of deregulation has constrained public enforcement in foundational ways, unlikely to be overcome by a mere change in presidential administration.

Regardless of one’s view on the relative merits of public or private enforcement, two hobbled parallel enforcement tracks may no longer be enough to secure crucial public laws. This Article proposes combining and integrating public and private enforcement efforts, to move beyond a traditional parallel hybrid approach, toward integrated public agency-private plaintiff “co-enforcement” litigation that can stem this deregulatory slide. The Article considers the theoretical basis for moving toward co-enforcement, the normative imperative for doing so, and the doctrinal and practical issues involved.