Scholars debating the relative merits of public and private enforcement have long trained their attention on the federal courts. For some, laws giving private litigants rights to vindicate important policies generate unaccountable private attorneys general" who interfere with public enforcement goals. For others, private lawsuits save cash-strapped government lawyers money, time, and resources by encouraging private parties to police misconduct on their own. Yet largely overlooked in the debate is enforcement inside agency adjudication, which often is depicted as just another form of public enforcement, only in a friendlier forum.
This Article challenges the prevailing conception of administrative enforcement. Based on a comprehensive examination of over eighty administrative courts, I find that agencies rarely enforce on their own. Among other things, private parties may have procedural rights to file regulatory complaints, trigger agency investigations, demand evidentiary hearings, join public enforcement actions as parties, and even pursue claims without the involvement of the agency's enforcement arm. Although some administrative enforcement is virtually indistinguishable from either public or private enforcement in federal court, more often administrative schemes employ attributes of both.
Combining public and private enforcement furthers the goals of agency adjudication while mitigating some of the dangers posed by transferring cases from generalist courts to specialized policymaking bodies with less formal procedures. Public enforcement offers greater political accountability and more coherent implementation of policy. Private enforcement supplements agency expertise with the situated knowledge of regulatory beneficiaries and enhances their access to legal remedies. And diversifying enforcement inputs reduces the risk of political or interest group capture of administrative schemes. These tools are especially valuable today, as presidential administrations increasingly use control over public enforcement to roll back statutory mandates they cannot repeal through the legislative process. Enhanced procedural rights for private parties can reduce capture of statutory mandates, highlight undue influence, and facilitate judicial review of policy changes implemented through agency nonenforcement.
Private Enforcement in Administrative Courts,
72 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol72/iss2/2