Prof. Diego Zambrano (Stanford) and Stanford students Neel Guha, Austin Peters, & Jeffrey Xi have an extremely interesting article with this title, forthcoming in the University of Pennsylvania Law Review; and they were kind enough to pass along this guest-post summarizing their analysis:
One of the most interesting and unique features of the U.S. legal system is also puzzling: unlike most countries, the U.S. relies on private litigants to enforce our most important statutes. You'd be wrong to think we just do that in False Claims Act or qui tam litigation. Not at all. At the federal level, we do it across the board: civil rights, antitrust, environmental law, employment, and nearly every other area.
Not only do we adopt private rights of action, but we also partner them with fee shifting, treble damages, and, of course, class actions. This means that often, when the federal government wants to address a problem, it creates a private right of action alongside public enforcement. And private parties eagerly employ these rights, filing more than 90% of the claims in antitrust, employment, and environmental law (while government officials file the remaining 10%). Nowhere else in the world do we see this much reliance on private litigation. So why does the U.S. legal system rely on private claims?
To make progress on solving the puzzle of private enforcement, we turned to the sub-national level in our paper, "Private Enforcement in the States." Previous research on this question had focused exclusively on federal private rights of action. No work had looked at the states. What we found is a world of private rights of action even more sprawling than the federal system.
As we describe in the piece: "Even by very conservative estimates, there are more than 3,500 private rights of action provisions in state law, ranging from traditional areas like antitrust and employment, all the way to privacy violations, lawsuits against police, grave-digging, veterinary care, and waste disposal." Our upper bound estimate pegs the true number of private rights of action at around 10,000. For context, scholarship by Sean Farhang had identified around 300 such clauses at the federal level. Relative to that, our finding shows that state private enforcement is large, significant, and maybe even a bit chaotic.
