The American Tradition of Private Law Enforcement

Abstract

The first thing for European lawyers to understand about American law is that the distinction between public and private law is in America seldom noticed. American judicial institutions, unlike those in most other countriees, were not designed merely to resolve civil disputes, but were fashioned for the additional purpose of facilitating private enforcement of what in other nations would generally be denoted as public law. This purpose reflects widespread mistrust of the political institutions and government officials upon whom American citizens would have to depend if private law enforcement were not available, as generally it is. That shared mistrust has ancient roots and is reflected in state and federal constitutional provisions assuring the weakness and ineptitude of American political institutions other than courts, and in the habit of Americans, observed in 1835 by the French observer de Tocqueville, to litigate issues they care most about. As a consequence of these conditions, substantial reliance for the regulation of business is placed on private plaintiffs. Much regulation is done ex post the regulated business conduct in the form of civil money judgments rather than ex ante in the form of official approval or disapproval. It is provided by lawyers serving as private attorneys general. Its aim is to keep business executives alert to the risks their business decisions may impose on others.