Law Commons^™

Federal Rules Of Private Enforcement, Luke Norris, David L. Noll

Law Faculty Publications

The Federal Rules of Civil Procedure were made for a different world. Fast approaching their hundredth anniversary, the Rules reflect the state of litigation in the first few decades of the twentieth century and the then-prevailing distinction between "substantive" rights and the "procedure" used to adjudicate them. The role of procedure, the rulemakers believed, was to resolve private disputes fairly and efficiently. Today, a substantial portion of litigation in federal court is brought under regulatory statutes that deploy private lawsuits to enforce public regulatory policy. This type of litigation, which scholars refer to as "private enforcement," is the engine for …

The Private Enforcement Of National Security, Maryam Jamshidi

Publications

The private enforcement of public law is a central feature of the American administrative state. As various scholars have argued, the federal government depends upon private parties to enforce public laws through litigation in order to achieve the government’s regulatory objectives. This scholarship has, however, largely overlooked the phenomenon of private enforcement in the national security arena. This Article seeks to describe and analyze national security’s private enforcement for the first time. In doing so, it explores what national security’s private enforcement reveals about the costs of private enforcement more broadly. In particular, this Article identifies an important downside to …

Presidential Primacy Amidst Democratic Decline, Ashraf Ahmed, Karen M. Tani

Faculty Scholarship

Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. …

Asymmetric Stakes In Antitrust Litigation, Erik Hovenkamp, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Private antitrust litigation often involves a dominant firm being accused of exclusionary conduct by a smaller rival or entrant. Importantly, the firms in such cases generally have asymmetric stakes: the defendant typically has a much larger financial interest on the line. We explore the broad policy implications of this fact using a novel model of litigation with endogenous effort. Asymmetric stakes lead dominant defendants to invest systematically more resources into litigation, causing the plaintiff's success probability to fall below the efficient level--a distortion that carries over to ex ante settlements. We explain that enhanced damages may reduce the problem, but …

The Omega Man Or The Isolation Of U.S. Antitrust Law, Spencer Weber Waller

Faculty Publications & Other Works

There is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson's 1954 classic science fiction novel, I am Legend, and the later 1971 film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth.

While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United States …

Deregulation And Private Enforcement, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Many conservatives oppose much of the administrative state. But many also oppose much of our private enforcement regime. This raises the questions of whether conservatives believe the marketplace should be policed at all, and if so, who exactly should do that policing? In this Essay, based on my new book, The Conservative Case for Class Actions, I take a deep dive into conservative principles to try to answer these questions. I conclude that almost all conservatives believe the marketplace needs at least some legal constraints, and I argue that ex post, private enforcement is superior to the alternatives. Not only …

Apple V. Pepper: Rationalizing Antitrust’S Indirect Purchaser Rule, Herbert J. Hovenkamp

All Faculty Scholarship

In Apple v. Pepper the Supreme Court held that consumers who allegedly paid too much for apps sold on Apple’s iStore could sue Apple for antitrust damages because they were “direct purchasers.” The decision reflects some bizarre complexities that have resulted from the Supreme Court’s 1977 decision in Illinois Brick, which held that only direct purchasers could sue for overcharge injuries under the federal antitrust laws. The indirect purchaser rule was problematic from the beginning. First, it was plainly inconsistent with the antitrust damages statute, which gives an action to “any person who shall be injured in his business …

Towards Optimal Enforcement, Kent H. Barnett

Scholarly Works

In Private Enforcement in Administrative Courts, Professor Michael Sant'Ambrogio argues that a hybrid private/public enforcement model in agency proceedings may provide the best hope of achieving optimal federal law enforcement. In other words, a blunderbuss approach of choosing public enforcement or private enforcement (whether in judicial or agency proceedings) is unlikely to prove ideal. He identifies various tools--such as agencies' role in the review or initiation of proceedings, or the use of class-wide proceedings--that Congress or agencies can use to calibrate agency enforcement to its optimal design. I consider three additional tools that may optimize enforcement goals with hybrid public …

All Balls And No Strikes: The Roberts Court’S Anti-Worker Activism, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights.

In 2012, I traced how the Roberts Court paid scant attention to the integral role …

A Big Gap Between ‘Law In Books’ And ‘Law In Action’ And "A New Taxonomy Of Enforcement Strategies", Robin H. Huang, Nicholas C. Howson

Other Publications

Any attempt to comprehensively analyse the enforcement of corporate law and securities regulation is difficult, not only because there are so many distinct national systems in play, but also because, we need to examine both formal enforcement mechanisms and the way in which such mechanisms are applied in practice. If nothing else, the expert analyses presented in the foregoing chapters of this book confirm that with respect to enforcement issues a rather large gap does exist between what Roscoe Pound memorably called ‘law in books’ and ‘law in action’.

Procedure And Pragmatism, Stephen B. Burbank

All Faculty Scholarship

In this essay, prepared as part of a festschrift for the Italian scholar, Michele Taruffo, I portray him as a pragmatic realist of the sort described by Richard Posner in his book, Reflections on Judging. Viewing him as such, I salute Taruffo for challenging the established order in domestic and comparative law thinking about civil law systems, the role of lawyers, courts and precedent in those systems, and also for casting the light of the comparative enterprise on common law systems, particularly that in the United States. Speaking as one iconoclast of another, however, I also raise questions about Taruffo’s …

Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank

All Faculty Scholarship

In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that …

Federal Securities Fraud Litigation As A Lawmaking Partnership, Jill E. Fisch

All Faculty Scholarship

In its most recent Halliburton II decision, the Supreme Court rejected an effort to overrule its prior decision in Basic Inc. v. Levinson. The Court reasoned that adherence to Basic was warranted by principles of stare decisis that operate with “special force” in the context of statutory interpretation. This Article offers an alternative justification for adhering to Basic—the collaboration between the Court and Congress that has led to the development of the private class action for federal securities fraud. The Article characterizes this collaboration as a lawmaking partnership and argues that such a partnership offers distinctive lawmaking advantages. …

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Lawyering That Has No Name: Title Vi And The Meaning Of Private Enforcement, Olatunde C.A. Johnson

Faculty Scholarship

On the occasion of the fiftieth anniversary of the Civil Rights Act of 1964, this Essay examines the problem of private enforcement of Title VI. The Essay reviews the unduly constrained approach to private enforcement taken by courts in prominent decisions such as Regents of the University of California v. Bakke and Alexander v. Sandoval. Yet the Essay argues that to focus primarily on private court enforcement of Title VI will continue to relegate the provision to the margins of civil rights discourse, to make the provision appear largely as the "sleeping giant" of civil rights law. The practice …

The Structural Role Of Private Enforcement Mechanisms In Public Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

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 …

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. American civil rights regulation also contains a set of "equality directives," whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private …

Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin

All Faculty Scholarship

In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for …

Special Education, Poverty, And The Limits Of Private Enforcement, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

This Article examines the appropriate balance between public and private enforcement of statutes seeking to distribute resources or social services to a socioeconomically diverse set of beneficiaries through a case study of the federal special education law, the Individuals with Disabilities Education Act (IDEA). It focuses particularly on the extent to which the Act’s enforcement regime sufficiently enforces the law for the poor. The Article responds to the frequent contention that private enforcement of statutory regimes is necessary to compensate for the shortcomings of public enforcement. Public enforcement, the story goes, is inefficient and relies on underfunded, captured, or impotent …

Redeeming The Missed Opportunities Of Shady Grove, Stephen B. Burbank, Tobias Barrington Wolff

All Faculty Scholarship

Shady Grove Orthopedic Associates v. Allstate Insurance Co., a closely watched case decided in the 2009–10 Term, presented the Court with an opportunity to speak to two related problems under the Rules Enabling Act that have languished for decades without proper resolution. The first involves a broad interpretive question: How can the limitations on rulemaking authority contained in the Act be applied in a manner that reflects the separation-of-powers concerns that animated them while also exhibiting respect for the state regulatory arrangements that govern much of our economic and social activity? The second problem involves the intersection of the …

Class Dismissed: Contemporary Judicial Hostility To Small-Claims Consumer Class Actions, Myriam E. Gilles

Articles

I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within …

Private Enforcement Of Systemic Risk Regulation, Heidi Mandanis Schooner

Scholarly Articles

The failure of the regulatory system is at least one of the contributing causes to the 2008 Financial Crisis. The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) will have a far-reaching impact on the financial services industry particularly in its attempt to regulate systemic risk. The Dodd-Frank Act, however, does not sufficiently address the problem of agency discretion generally, or the problem of an agency’s discretion to forebear, in particular. Under Dodd-Frank, the agencies retain considerable discretion and the effectiveness of the new regime depends on the optimal exercise of such discretion. This Article maintains that an …

Benefits From Private Antitrust Enforcement: An Analysis Of Forty Cases, Robert H. Lande, Joshua P. Davis

All Faculty Scholarship

The goal of this Report is to take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. To do this the Report assembles, aggregates, and analyzes information about forty of the largest recent successful private antitrust cases. This information includes, inter alia, the amount of money each action recovered, what proportion of the money was recovered from foreign entities, whether the private litigation was preceded by government action, the attorneys' fees awarded to plaintiffs' counsel, on whose behalf money was recovered …

The Economic Theory Of Nuisance Law And Implications For Environmental Regulation, Keith N. Hylton

Faculty Scholarship

In this article, I will explore in detail the structure of nuisance law as a mechanism for regulating environmental interferences and suggest a modernized enforcement regime. The modem regime would retain public enforcement primarily in identifying environmental harms. Public enforcement might also be retained in the discovery of sources of harm, as long as it is more efficient than private enforcement in that task. However, enforcement efforts in the proposed regime would largely be delegated to private enforcers. Moreover, the decentralized approach would permit tougher environmental rules than under the public enforcement approach in some areas, and perhaps weaker regulations …

Benefits From Private Antitrust Enforcement: Forty Individual Case Studies, Robert H. Lande, Joshua P. Davis

All Faculty Scholarship

This Paper presents information about forty of the largest recent successful private antitrust cases. To do this, the paper gathers information about each case, including, inter alia, (1) the amount of money each action recovered for the victims of each alleged antitrust violation, (2) what proportion of the money was recovered from foreign entities, (3) whether government action preceded the private litigation, (4) the attorney's fees awarded to plaintiffs' counsel, (5) on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and (6) the kind of claim the plaintiffs asserted (rule of reason, per se, or a …

Restraints On Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

Beginning with the work of Joseph Schumpeter in the 1940s and later elaborated by Robert W. Solow's work on the neoclassical growth model, economics has produced a strong consensus that the economic gains from innovation dwarf those to be had from capital accumulation and increased price competition. An important but sometimes overlooked corollary is that restraints on innovation can do far more harm to the economy than restraints on traditional output or pricing. Many practices that violate the antitrust laws are best understood as restraints on innovation rather than restraints on pricing.

While antitrust models for assessing losses that result …

The Power Behind The Promise: Enforcing No Child Left Behind To Improve Education, Amy M. Reichbach

Faculty Publications

Despite the U.S. Supreme Court's recognition in 1954, in Brown v. Board of Education, that education is of paramount importance, six million middle and high school students are still in danger of being left behind. Less than seventy-five percent of eighth graders, fifty percent in urban schools, are graduating from high school within five years. Advocates for educational equity have appealed to the courts, achieving limited success. They have also turned to the legislature, which most recently enacted the No Child Left Behind Act of 2001 ("NCLB"). Thus far, however, the federal government has not enforced NCLB adequately. This …

The Stealth Assault On Antitrust Enforcement: Raising The Barriers For Antitrust Injury And Standing, Joseph P. Bauer

Journal Articles

The first Annual Conference sponsored by the American Antitrust Institute featured a number of prominent speakers and explored a number of important issues. The Conference had two principal focuses: substantive questions of antitrust liability and the future direction of public enforcement of the antitrust laws by the Department of Justice's Antitrust Division and by the Federal Trade Commission. However, an issue of at least equal importance was barely discussed, although it has seriously affected the scope and direction of the antitrust laws. That issue: Private enforcement of the antitrust laws, and the significant undermining of those efforts by a number …

Are Antitrust "Treble" Damages Really Single Damages?, Robert H. Lande

All Faculty Scholarship

This Article will show that antitrust violations do not actually give rise to "treble" damages. When viewed correctly, antitrust damages awards are approximately equal to, or are in fact less than, the actual damages caused by antitrust violations.

The article demonstrates this by analyzing the relatively quantifiable harms from antitrust violations, modeling the issues under both deterrence and compensation frameworks. It calculates rough estimates of those factors that affect the magnitude of the antitrust damages multiplier actually awarded. These adjustments to the "treble" damages multiplier arise from: (1) the lack of prejudgment interest; (2) the effects of the statute of …

Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr.

Faculty Scholarship

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third, …