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The American regulatory system is unique in that it expressly 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 more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation 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 mechanisms of enforcement attendant to private suits are being restricted in numerous ways, and on numerous fronts, in the form of prohibitions on the use of the class action device, the recalibration of procedural mechanisms through private contract to discourage suit, the heightening of pleading standards, and the pre-emption of state law causes of action, just to name a few. Although these restrictions in some instances may provide necessary correctives to the system of private litigation in particular and the functioning of overall regulatory schemes more generally, in their broad-sweeping forms, they threaten to undermine systematically substantive regulatory law. Yet the larger regulatory consequences of these efforts receive inadequate attention.

This Article thus offers a more systemic view of these mechanisms of private enforcement by providing elements of a conceptual framework for tailoring mechanisms of private litigation to the contours of particular regulatory regimes. This framework seeks to effectuate and extend the systemic interests in aligning private 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, in some substantive regimes, generate undesired regulatory consequences. Indeed, this framework highlights the need, in some instances, for limitations on the use of private enforcement mechanisms, as well as the need, in other circumstances, for the creation of new mechanisms that are more carefully calibrated to address potential pathologies. This framework is therefore preferable to one-size-fits-all, abstract approaches to a number of seemingly disparate debates regarding restrictions on private enforcement mechanisms across our legal landscape. By offering a systemic view of various debates about these mechanisms, this framework offers the hope of eventual resolution of these seemingly intractable disputes. This framework also seeks to provide guidance to judges, agencies, and legislatures in the task of tailoring mechanisms of private enforcement to the achievement of public regulatory objectives.

Publication Citation

53 Wm. & Mary L. Rev. 1137 (2011-2012)