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A New Vision of Public Enforcement

By Michael Waterstone. Full text here.

Civil rights laws are not self-enforcing. Enforcement mechanisms, therefore, need to be studied as part of the larger debate on the form and direction of civil rights law. The current decline of the ability of the private attorney general to fairly and consistently enforce our civil rights laws strengthens the argument for a renewed emphasis on the importance and form of government enforcement. Focusing on the Americans with Disabilities Act, this Article presents a new vision of public enforcement. After explaining the historical, theoretical, and practical strengths of public enforcement—all things that cannot be completely “outsourced” to private attorneys general—this Article suggests that public enforcement officials need to renew their commitment to structural litigation, especially in areas where the profit motive for private lawyers is low, noncomplicance appears systemic, there is a vacuum for case development, and individual plaintiffs have standing difficulties challenging broad-ranging discrimination. Recognizing that litigation, even of the structural variety, will always be an incomplete enforcement strategy, this Article also offers a novel application of “new governance” theory to public enforcement activity. In particular, this Article identifies several areas where public enforcement officials could help transform the way that ADA norms are established. In these areas, rather than relying on courts to make decisions interpreting the statute’s broad principles, the government could foster a broader cross-section of interested stakeholders cooperatively deciding on individualized and contextualized solutions.