Private Law Theory

ABSTRACT
Scholarship on US litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the US often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress deliberately empowered private plaintiffs instead of, or in addition to, government agencies. Yet, despite the vast importance of private enforcement at the federal level, we have no account of how prevalent private rights of action are in state law. And this question is particularly pressing now that a range of states – triggered by the Texas abortion law SB 8 – are using private enforcement to weaken constitutional rights. Is private enforcement a way of governance in the states or just at the federal level? If it exists, are there important differences? What political conditions lead to their adoption? And why does it exist? …

Zambrano, Diego and Guha, Neel and Peters, Austin and Xia, Jeffrey, Private Enforcement in the States (February 20, 2023), University of Pennsylvania Law Review, forthcoming.