I recently read with great pleasure—and I strongly endorse—my Stanford colleague Diego Zambrano’s book, How Americans Enforce the Law. He was kind enough to write up for us this piece that distills the core of his argument, and I’m glad to share it (though I still recommend reading the entire book):
The headlines are filled with accounts of a federal government pulling back from enforcement. Agencies are closing probes, scaling back regulations, trimming personnel and shifting enforcement priorities. In one week, the EEOC drops discrimination cases. In the next, the SEC and CFPB pare back investigations into securities fraud and consumer wrongdoing. Critics worry that the Department of Justice’s antitrust division will pass over mergers when it serves the administration. And the DOJ has abruptly diminished its enforcement of the Foreign Corrupt Practices Act. Faced with these changes, Americans may fear that a broad array of laws will go unenforced.
But that worry misses a distinctive feature of the American way of governance. We have never relied solely on bureaucrats to enforce our laws.
Since the colonial era, American lawmakers have repeatedly done something unusual: they have entrusted ordinary people with the right to sue alongside government officials. In nearly every regulatory domain that matters to most Americans—whether regulating wages and hours, environmental pollution, consumer protection, or securities fraud—statutes permit both government officials and private individuals to bring lawsuits to uphold the law. All of this unfolds through little-known mechanisms called “private rights of action,” a formal term for the entitlement to sue. Thousands of such provisions create a secondary enforcement system that operates alongside the bureaucracy, turning workers, consumers, competitors and their attorneys into co-enforcers of public law.
This arrangement of private enforcement is highly unusual. In much of the world, whenever a regulatory challenge arises, governments typically empower officials and civil servants to police legal violations. In France, Germany, Japan, and even the United Kingdom, legislators are far less inclined to allow private lawsuits over, say, pollution or workplace discrimination.
Take the case of oil spills as an illustration. In 1989, the Exxon Valdez tragedy struck the pristine waters of Alaska, causing extensive damage to coastlines, oceans, and fisheries across a wide region. A decade later, France faced a catastrophic spill from a vessel named Erika. How did each country respond? In the United States, private plaintiffs sued Exxon under existing tort and maritime law, ultimately securing substantial damages. Congress, meanwhile, enacted the Oil Pollution Act, which created a new private right to sue those responsible for oil spills. By contrast, France relied primarily on criminal prosecutions and, eventually, on new national and European regulations (including the European Maritime Safety Agency). When France finally introduced a private right to sue in 2016, it paled in comparison to the American version.
Why does the United States diverge so markedly? Part of the explanation, as I argue in a forthcoming book, is that Americans have historically embraced this approach. In the colonial era, state legislatures passed what they called “penal statutes,” authorizing any citizen to enforce regulatory statutes and even offering rewards. So when Massachusetts sought to regulate gunpowder storage, private informers were permitted to sue neighbors who stored it improperly. This pattern extended to numerous aspects of colonial life—alcohol, trade, taxation, public morals, church attendance, and more. The Founders employed the same instrument across broad swaths of public life: Thomas Jefferson and James Madison co-authored Virginia penal statutes, and John Adams frequently handled these suits as a colonial attorney.
The central feature of this system is that even though private plaintiffs sue for personal goals—an employee seeking full wage payment or a consumer seeking a refund for a defective product—they nonetheless enforce the law. Moreover, these lawsuits benefit everyone because employers and manufacturers may alter their practices toward other workers and customers. In this sense, every plaintiff acts as a miniature bureaucrat or, as some courts label them, a “private attorney general.”
Beyond that, the system helps dampen political disruptions in enforcement. While any single administration can set the enforcement priorities for the EEOC, SEC, CFPB, or the Department of Justice, the president cannot control thousands of lawyers and their clients. Private enforcement thus makes enforcement less susceptible to the whims of bureaucracy and presidential policy.
So you might conclude that when the bureaucracy shirks its duties, the natural remedy is always to grant more rights to sue. Indeed, many news stories decry a lack of government enforcement and promptly advocate expanding private litigation.
Yet that remedy presents complications. Private enforcement is not well suited to every regulatory domain. It makes the most sense when the bureaucracy is genuinely deficient, under-resourced, politically vulnerable, or prone to capture by regulated interests. When that is not the case, private enforcement can create more problems than it solves.
Consider, then, the significant challenges posed by private rights of action in environmental protection and in the construction of housing and infrastructure. Broad private challenges to government approvals can enable private actors to obstruct the development of housing, mass transit, green energy, and other projects. There are plenty of ruinous examples. In a Maryland suburb, backed for years by a local country club, neighbors sued to derail the Purple Line light-rail project over concerns for a microscopic organism, while the Sierra Club challenged a Mojave Desert solar project over the possible impact on a desert tortoise. Even when a city has approved a project that could benefit thousands, a single disgruntled party may employ a private right to sue to halt it. In these cases, private rights to sue have contributed to delays and higher costs for housing and infrastructure projects.
What we need is a cautious approach to private rights of action. In some domains, yes, we should bolster them—especially if the government fails to enforce anti-corruption or consumer-protection laws. And in employment, securities, and antitrust, private enforcement often makes good sense. But this is not universally true, particularly in environmental law and construction. In those areas, stronger bureaucratic capacity is preferable to allowing thousands of individuals to block projects for a multitude of reasons.
When the bureaucracy withdraws, Americans should be confident that private enforcement will persist. Yet this power to police the law must be granted with care.
