Private Litigation Research Articles

The New Managerialism: Courts, Positive Duties, and Economic and Social Rights

An inseparable component of liberal constitutionalism is the respect accorded to so-called negative which rest on duties of government restraint. But just as governments must have their hands tied, in this model, they must also work to secure by actively and effectively planning, regulating, budgeting, and monitoring. These duties are particularly pronounced for so-called positive rights, which guarantee access to goods, services and opportunities such as social security, education, health care, land, food, water, sanitation, or to a clean environment. Of course, it is clear that so-called negative rights require both duties of commission and restraint; just as so-called rights call for the same. Nonetheless, the duties that attach to economic and social rights put particular pressure on courts, the executive, the legislature and civil society. Indeed, courts have become central in enforcing the negative and duties that arise from justiciable complaints about matters such as medical treatment denials, electricity and water shutoffs, evictions, schools and education outcomes, pollution levels, and food distribution schemes. The widespread adoption of economic and social rights in a majority of the world’s constitutions, combined with a pronounced shortfall in the realization of such herald a new managerialism in constitutional government. This chapter, under review for the edited collection, Constitutionalism and a Right to Effective Government by Vicki Jackson and Yasmin Dawood, takes one prominent jurisdiction, South Africa, and examines how its courts have enforced constitutional rights to access health care, housing, electricity, water and sanitation, particularly in the last decade. It describes both interpretive and institutional trends. As a matter of interpretation, courts invoke the textual guarantees of effective, co-operative, federal government and public administration, alongside express economic and social rights. As an institutional matter, courts are increasingly favoring a managerial dynamic, co-originating in South Africa’s case with the behaviour of the executive. Courts increasingly respond to ineffective government by personalizing responsibility, including through costs, joining state actors in private litigation, and supervising and controlling state assets. This chapter also shows how conventional alternatives to managerialism, such as dialogic or experimental review, have become more responsive to management deficiencies. This includes the dialogical suspension of orders, or the judicial emphasis on existing duties to budget and plan. It also occurs during experimental dispute resolution, when courts supervise a “meaningful engagement” between the parties. Updating my earlier typology of judicial review, which argued that courts frequently acted as catalysts in provoking governmental or civil society responses, this chapter emphasizes a more urgent, managerial response.

The Law: The Influence of the President in the Adoption and Enforcement of Private Rights of Action

AbstractLitigation by private parties is authorized by dozens of federal statutes, resulting in thousands of lawsuits every year. Recent scholarship has suggested that Congress authorizes litigation by private parties to enforce federal law in order to limit the ability of the president to influence enforcement. I argue, however, that the apparent influence of presidential partisanship on adoption of private enforcement regimes is spurious, resulting from the increased use of this enforcement mechanism beginning in the 1960s. Further, I show that presidents meaningfully influence the rate of private litigation. Specifically, for statutes with liberal policy goals, litigation rates are substantially higher when a Democratic president is in office and when agencies are more politicized. Therefore, if Congress desires to insulate policy from the president, private enforcement regimes are unlikely to be a useful policy tool.

The World of Private Terrorism Litigation

Since 9/11, private litigants have been important players in the “fight” against terrorism. Using several federal tort statutes, these plaintiffs have sued foreign states as well as other parties, like non-governmental charities, financial institutions, and social media companies, for terrorism-related activities. While these private suits are meant to address injuries suffered by plaintiffs or their loved ones, they often reinforce and reflect the U.S. government’s terrorism-related policies, including the racial and religious discrimination endemic to them. Indeed, much like the U.S. government’s criminal prosecutions for terrorism-related activities, private terrorism suits disproportionately implicate Muslim and/or Arab individuals and entities while reinforcing the belief that those groups are predisposed to engage in or support terrorism. This short Article provides a brief overview of the world of private terrorism litigation. It begins by describing the various federal tort statutes on terrorism—including their fraught relationship with foundational tort law norms. It explains the connection between those laws and the U.S. government’s terrorism prosecutions, as well as its other terrorism-related priorities. It ends by demonstrating how private terrorism suits reinforce discrimination and prejudice against Arabs and Muslims that are reflected in criminal terrorism prosecutions. In focusing on private terrorism litigation, this Article highlights how private parties are furthering the government’s counterterrorism work, as well as how private terrorism suits reinforce the state’s endemic discrimination against Arabs and Muslims in the counterterrorism realm.

Mangling the Major Questions Doctrine

The Supreme Court has made clear, in the five cases in which it has dealt with this issue, that the major questions doctrine applies only in exceptional cases. In contrast, during its four years in office, the Trump Administration invoked the doctrine routinely in support of its deregulatory assault on the administrative state. In doing so, the Trump Administration construed the major questions doctrine enormously expansively and inconsistently, in ways untethered to the Court’s jurisprudence, turning it into little more than an invitation for courts to strike down regulations the Administration did not favor for policy-based reasons. This pattern is especially problematic considering that unlike individual private litigants, the Justice Department normally strives to develop a consistent approach to important legal doctrines. The Trump Administration’s most sustained weaponization of the major questions doctrine was against the Clean Power Plan, which regulated the greenhouse gas emissions of existing power plants. And, under the similarly wrongheaded and even broader arguments made by its allies, all greenhouse gas regulations could be suspect on major question grounds. The Trump Administration’s arguments with respect to the major questions doctrine are not merely of historical interest. They have already found support in lower court decisions and are still being pressed by state attorneys general and other influential litigants; bringing to light their enormously problematic application is important to foreclose their successful revival in future administrations.

The Political Economy of Foreign Sovereign Immunity

Increasingly, legal scholars are examining the ways law is shaped by and influences the political and economic systems central to capitalist societies. By and large, this critical scholarship has focused either on legal domains typically associated with capitalism, such as corporate and trust law, or legal systems that shape the political and social structures upon which capitalism is based, like constitutional law. This Article expands upon this scholarship by exploring the political economy of a legal regime that is not commonly understood to fit into either category: the law of foreign sovereign immunity as reflected in the Foreign Sovereign Immunities Act (“FSIA”). As this Article demonstrates, appreciating the political economy of the FSIA—which prohibits civil litigation against foreign sovereigns unless one of several enumerated exceptions apply—is critical to understanding the legal landscape for suing foreign states in the United States. As this story reveals, the statutory framework for private litigation against foreign sovereigns has long been a creature of capitalist interests and prerogatives—as evidenced by the historical forces that led to the FSIA’s passage; the central role of the commercial activity exception in the FSIA; and the ways courts have interpreted that exception to privilege particular capitalist interests and corporate plaintiffs over other types of claims and claimants. While capitalism’s influence on the FSIA is a story that has yet to be fully told, its telling benefits and enriches the growing scholarship on law and political economy, as well as legal analysis and understanding of the FSIA itself.

COVID-19 considerations for SEC cybersecurity guidance, disclosure, enforcement, and parallel proceedings: navigating the new normal

Purpose To examine the COVID-19 pandemic’s effects on regulated entities within the context of cybersecurity, US Securities and Exchange Commission (SEC) compliance, and parallel proceedings. Design/methodology/approach Describes the SEC’s ability to conduct its operations within the telework environment, its commitment and ability to monitor the securities market, its enhanced monitoring of the adverse effects of SEC-regulated companies from COVID-19, its guidance to public companies of disclosure obligations related to cybersecurity risks and incidents, the SEC Office of Compliance and Examinations’s (OCIE’s) focus on broker-dealers’ and investment advisories’ cybersecurity preparedness, the role and activities of the SEC Division of Enforcement’s Cyber Unit, and parallel proceedings on cyberbreaches and incidents by different agencies, branches of government or private litigants. Findings SEC-regulated entities face many challenges in trying to maintain their ongoing business operations and infrastructure due to severe financial pressures, the threat of infection to employees and customers, and cybersecurity risks posed by remote operations from hackers and fraudsters. The SEC has reemphasized that its long-standing focus on cybersecurity and resiliency within the securities industry will continue, including ongoing vigilance over companies’ efforts to identify, assess, and address the inherent, heightened cybersecurity risks of teleworking and the resource reallocation that business need to sustain their operations until a safe and effective vaccine is developed for COVID-19. Originality/value Expert analysis and guidance from experienced lawyers with expertise in securities, litigation, government enforcement, information technology, data protection, privacy and cybersecurity.

Legal Obstacles to Private Enforcement of Competition Law

Private enforcement of competition law serves many important goals, including deterrence of future anti-competitive harms and correction of past harms. This article sheds light on several potential legal obstacles to such enforcement which could prevent it from achieving its goals. The examples mainly build upon the experience of different jurisdictions with private litigation. It also suggests some possible solutions for dealing with or limiting such obstacles. As Europe is in the early stages of applying its Damages Directive and creating a private competition law enforcement regime, recognising – and possibly avoiding – obstacles to efficient private enforcement is both timely and important.

Testimony of Chimène Keitner Before the Senate Judiciary Committee on 'The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability'

On June 23, 2020, the Senate Judiciary Committee held a hearing Committee on “The Foreign Sovereign Immunities Act, Corona-virus, and Addressing China’s Culpability.” This document contains the written testimony of Professor Chimène Keitner, as well as responses to 39 questions for the record posed by members of the committee. Professor Keitner’s opening statement emphasized three main points. First, the United States has more to lose than any other country by removing the shield of foreign sovereign immunity for a pandemic. Second, private litigation will not bring China to the negotiating table, and it will not produce answers or compensation for U.S. victims. Instead, Congress should focus on the inadequate federal response to COVID-19, and on restoring U.S. leadership in global public health. The questions for the record covered issues including the FSIA, other obstacles to obtaining damages from civil suits, the consequences of domestic suits against foreign states, alternative methods for pursuing accountability, U.S. exposure to litigation risk, discovery of U.S. government records in cases against China, regulating live wildlife markets and the international wildlife trade, and President Trump’s praise of China’s COVID-19 response.On July 20, Senator Martha McSally (R-AZ) and seven Republican cosponsors introduced a new bill entitled the “Civil Justice for Victims of COVID Act” that combines features of previous bills introduced to amend the Foreign Sovereign Immunities Act (FSIA) “to strip foreign sovereign immunity of certain foreign states to secure justice for victims of novel corona-virus in the United States.” A business meeting to consider the bill, along with several judicial nominations, was scheduled for July 30.

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To Litigate a Pandemic: Cases in the United States Against China and the Chinese Communist Party and Foreign Sovereign Immunities

The devastation wrought by the spread of the novel coronavirus has touched virtually every country and will affect countless lives and livelihoods for years to come In the midst of the ongoing pandemic, individuals in some countries have sought legal redress through their own domestic courts This phenomenon seems most prevalent in the United States, where at least twenty civil lawsuits had been filed as of June 2020—eighteen by private litigants, and two by state attorneys general This symposium contribution considers the legal theories underlying these lawsuits and their prospects of success It also considers legislative proposals that would create a new exception to foreign sovereign immunity for claims arising from a pandemic

Power and Statistical Significance in Securities Fraud Litigation

Event studies, a half-century-old approach to measuring the effect of events on stock prices, are now ubiquitous in securities fraud litigation. In determining whether the event study demonstrates a price effect, expert witnesses typically base their conclusion on whether the results are statistically significant at the 95% confidence level, a threshold that is drawn from the academic literature. As a positive matter, this represents a disconnect with legal standards of proof. As a normative matter, it may reduce enforcement of fraud claims because litigation event studies typically involve quite low statistical power even for large-scale frauds. This paper, written for legal academics, judges, and policy makers, makes three contributions. First, it contributes to a nascent literature demonstrating that the standard event-study methodology can be problematic in securities litigation. In particular, the paper documents the tradeoff between power and confidence level and the ensuing impact on the likelihood that valid claims of fraud will erroneously be rejected. In so doing, the article highlights that the choice of confidence level is a policy judgment about the appropriate balance between the costs of litigation and the costs of securities fraud. Second, the article argues that the SEC has both the legal power and the institutional competence to develop litigation standards that balance these costs. Third, the article provides a novel and feasible framework through which the SEC can implement such litigation standards. The framework relies on an assessment of the defendant firm’s market capitalization and abnormal returns distribution to determine the maximum confidence level (minimum significance level) that is consistent with the minimum required power of detecting a fraud of the benchmark magnitude. The SEC is uniquely positioned to make this determination based on the information it possesses about the level of fraud in the capital markets and the role of private litigation in deterring fraud.

Asymmetric Stakes in Antitrust Litigation

Private antitrust litigation often involves a dominant firm being accused of exclusionary conduct by a smaller rival. In such cases, the defendant generally has a much larger financial stake in the outcome. We explore the implications of this asymmetry in a model of litigation with endogenous effort. Asymmetric stakes lead antitrust defendants to invest systematically more resources into litigation, causing a downward bias in the plaintiff's success probability---a distortion that carries over to ex ante settlements. Enhanced damages cannot prevent this systematic bias. We show that, in most private litigation contexts, asymmetric stakes do not create any distortion, because the prospect of ex post (post-judgment) settlement makes the litigants behave as if the stakes are symmetric. But this does not occur in antitrust, because it proscribes certain ex post settlements. We consider how courts might mitigate the distortion by altering the plaintiff's evidentiary burden.

Putting Money Back Into Consumers’ Pockets: An Empirical Study of the CFPB’s Civil Penalty Fund

One of the Consumer Financial Protection Bureau’s (“CFPB”) primary goals is to protect consumers. Protecting consumers necessarily means ensuring that companies and individuals stop violating the consumer laws. But stopping illegal conduct in the future does not help the consumers who have already been harmed. In many of the cases prosecuted by the CFPB, the defendants illegally took money out of the pockets of consumers: they charged fees that were expressly illegal; they charged consumers more than the consumers owed or more than the defendants had disclosed; and they deceived consumers about what the consumers were buying or how much it would cost. Remediating this harm—giving back money actually taken from consumers through the defendants’ illegal conduct—is an essential part of protecting consumers, and through the end of its 2019 fiscal year, the CFPB often required the defendants to pay consumers directly for the harm identified by the CFPB. In approximately 13% of the cases in which some relief was ordered, however, the defendants did not have the financial wherewithal to remediate consumers fully: they were bankrupt; they were banned from their respective industries or ordered to cease operations altogether; and in some cases, the principals were jailed. If consumers had to rely on these defendants for relief, they likely would be, quite simply, out of luck. Through the use of a previously unstudied mechanism, the Civil Penalty Fund, however, the CFPB is providing relief to all of them—hundreds of thousands of con- sumers across twenty-seven cases. Congress created the Fund in the Dodd-Frank Act and required that all civil money penalties collected by the CFPB be placed into the Fund. Further, Congress required that the CFPB use the Fund in the first instance to provide monetary relief to consumers who otherwise would not receive compensation for harm caused by the defendants in CFPB enforcement actions. And the defendants in these twenty-seven cases caused hundreds of thousands of consumers substantial amounts of monetary harm. Despite the fact that these companies had limited resources, they caused a total of $671.2 million in uncompensated harm with an average of over $24.9 million per case and a median of $10 million per case. Through the end of the CFPB’s 2019 fiscal year, the CFPB had used the Fund to send more than 905,000 checks, with an overall average of $494. In 70% of the cases, the average check sent was $1,000 or more, and more than 177,000 checks were sent in cases where the average check sent was at least $1,000. This Article expands on the growing body of scholarly literature regarding public enforcement of consumer laws. Although that scholarship has addressed the effectiveness and propriety of public enforcement, even raising concerns about judgment-proof defendants, there is virtually no substantive mention of the Civil Penalty Fund or its operations despite the magnitude of monetary relief it provides to consumers. This Article is the first empirical analysis of the Fund’s operation and the assessment and collection of civil money penalties that are used by the Fund to remediate consumers. After explaining the Fund’s operation, the Article finds that the Fund is an efficient way to provide significant monetary relief to consumers who otherwise would not receive any compensation for their losses from defendants’ unlawful conduct, including through private litigation. The Fund also is putting money back into consumers’ pockets. In all but one of the cases, the defendants either charged fees expressly prohibited by law, took amounts that were not disclosed or owed, deceived consumers about the cost or material aspects of the services that they were purchasing, or some combination thereof. The Article finds that the structure of the Fund creates positive incentives for regulators to bring important cases. As is noted in the literature, states and other regulators also bring enforcement actions against similar defendants—those who cause consumers monetary harm but cannot pay it back. Based on the evidence regarding the Civil Penalty Fund’s operation, this Article therefore recommends that states adopt similar consumer restitution funds. The Article details several issues that legislatures should consider in implementing their own funds and ends by providing draft language for creating and implementing such a fund.

Discovery as Regulation

This article develops an approach to discovery that is grounded in regulatory theory and administrative subpoena power. The conventional judicial and scholarly view about discovery is that it promotes fair and accurate outcomes and nudges the parties toward settlement. While commonly held, however, this belief is increasingly outdated and suffers from limitations. Among them, it has generated endless controversy about the problem of discovery costs. Indeed, a growing chorus of scholars and courts has offered an avalanche of reforms, from cost shifting and bespoke discovery contracts to outright elimination. Recently, Judge Thomas Hardiman quipped that if he had absolute power, he would abolish discovery for cases involving less than $500,000. These debates, however, are at a standstill, and existing scholarship offers incomplete treatment of discovery theory that might move debates forward. The core insight of the project is that in the private-enforcement context—where Congress deliberately employs private litigants as the main method of statutory enforcement—there is a surprisingly strong case that our current discovery system should be understood in part as serving regulatory goals analogous to administrative subpoena power. That is, discovery here can be seen as an extension of the subpoena power that agencies like the SEC, FTC, and EPA possess and is the lynchpin of a system that depends on private litigants to enforce our most important statutes. By forcing parties to disclose large amounts of information, discovery deters harm and, most importantly, shapes industry-wide practices and the primary behavior of regulated entities. This approach has a vast array of implications for the scope of discovery as well as the debate over costs. Scholars and courts should thus grapple with the consequences of what I call “regulatory discovery” for the entire legal system.

The Professionalization of Urban Accessibility

U.S. disability access law has a compliance issue. While disability law “on the books” is composed of civil rights legislation, regulations, and specified codes, in reality, decades after their enactment, many places of public accommodation remain inaccessible and out of reach for individuals with physical disabilities. Disability law scholars had observed how the federal level enforcement of accessibility standards is not done on the design stage but only ex post through private litigation. Much less attention, however, has been paid to the ways state and local laws deal with enforcing accessibility standards. This Article begins filling this gap in the literature by looking at the enforcement level of disability access in the context of urban built environments. Specifically, this Article examines the ways large U.S. cities have used their regulatory tools and state laws to move access enforcement forward through a process of professionalization. Disability scholars have observed how disability access law increased the need for professional experts on accessibility, who serve as agents of enforcement in the early stages of planning, development and construction in urban environments. This process of producing accessibility experts was not standardized in the United States on the federal level. Instead, it was left to the discretion of states and local authorities. Each city decides whether it wants to take an active or passive role in instituting accessibility professionals and mechanisms of enforcement. Many municipalities in large cities have established a special office or commission in charge of enforcing accessibility of the built environment. Not all large cities, however, take the same approach to create expertise for implementing disability access laws, creating what this Article terms a diffused model of professionalization and enforcement. While most cities take a similar “hands-on” approach with enforcing disability access laws in their government-owned buildings and facilities, a variety of methods exists for enforcing the law in privately owned places of public accommodations. This Article also looks beyond the United States to Israel, a country that modeled its disability rights laws after the United States, yet it has a centralized model of professionalization and enforcement, standardized, streamlined, and enforced at the national level. The two legal systems diverge on issues of federalism, the role of government and legal culture, yet they converge on their views of the ways disability anti-discrimination law should look. Nevertheless, despite this similarity, the Israeli system embraces a centralized and proactive approach to the professionalization and enforcement of accessibility, putting in place regulatory mechanisms that can only be found sporadically within local governments in the United States. Meaning, the Israeli ideas about enforcing accessibility are not entirely foreign in the U.S context, yet showing how a full embrace of these mechanisms can look is instructive in offering valuable lessons and recommendations on how professionalization could lead to enforcement of accessibility standards.

Access to Justice: A Comparison of the Procedural Status of Private Litigants in International Economic Law

Access to Justice: A Comparison of the Procedural Status of Private Litigants in International Economic Law

Horizontal and vertical agreements: Differences between the European Union and the United States

This article compares the European Union and the United States with respect to competition law and enforcement practices as it pertains to agreements among competitors in a market (horizontal) and agreements among firms in a supply chain (vertical). Regarding horizontal agreements, the primary difference in the law is the ability of the competition authority to bring a criminal case in the U.S. and a more subtle difference is the presence of concerted practices in the EU. Enforcement differs in the far more active role of private litigation in the U.S. The differences are greater when one turns to vertical agreements. Though the EU provides safe harbors for vertical agreements, something which is absent in the U.S., it is abundantly clear that the U.S.is more lenient in the law and in enforcement. Also provided is a discussion of some recent departures between the U.S. and EU.

행정법에 있어서 사인의 소송 및 집행의 역할 (Ⅰ)

이른바 ‘소송을 통한 혹은 소송에 의한 규제’란, 미국법제에서 손해배상 내지 가처분 등의 민사소송이 정부의 규제를 대체 또는 보완하는 기능을 하는 현상을 지칭하는 것으로, 가령, 주 검찰총장(state attorney general)은 담배회사를 상대로 제소하여 최종적으로 합의를 통하여 담배에 관한 규제를 만들어내고, 총기사고의 피해자들은 총기회사를 상대로 손해배상을 청구하며, 규제기관은 자동차회사를 상대로 환경소송을 제기하고, 시민단체는 미국 민권법(Civil Right Act)을 정착시키기 위하여 차별에 대응하는 소송을 제기하는 현상을 포괄한다. 다른 한편으로 私人의 소송을 통한 규제는 이러한 현상이 입법자가 법제정시 추구한 규제목적을 달성하기 위하여 의도적으로 소송을 허용하고, 촉진하는 정책을 통하여 이루어지는 제도라는 점에 특징이 있다. 우리도 2013년 「하도급거래 공정화에 관한 법률」에서 3배 범위에서의 이른바 ‘징벌적 손해배상’제도를 도입한 이래 다양한 방식으로 입법화가 추진되고 있는 실정이다.BR 미국제도의 배경에 대하여 소위 대립적 법률주의, 법경제학적인 관점, 제도주의적 관점에서 설명하는 견해들이 있다. 미국제도는 크게 보면 행정청이나 정부가 직접 소송을 제기한 후 미래의 행위에 대한 제약을 합의조항에 넣어서 종결하는 형태가 있는가 하면, 입법자의 인센티브를 통하여 私人이 소송을 제기하는 법집행 유형의 소송형태도 있다. 전자가 담배소송과 같은 전형적인 소송유형이라면 후자는 민권법으로 대표되면서 미국법 전반에 걸쳐 확대되고 있다.BR 미국의 소송을 통한 규제에 대하여는 절차적 보장을 회피하고 소비자에게 비용을 전가하며 변호사의 소송남용이라는 문제점이 제기되는 실정이다. 이 연구는 미국법의 제도를 소개하면서 우리나라에의 도입가능성과 그에 따른 비판적 평가의 관점을 제시하고, 추가적인 연구에 앞서 개략적인 제도설계의 방향을 제시하고자 하였다는 점에서 의의를 찾을 수 있다.

Litigation Migrants

Civil law is enforced primarily via private litigation. One characteristic of private enforcement is that litigation levels tend to cycle between periods of boom and bust. This article builds a theory for explaining this fluctuation, proposing that plaintiffs’ attorneys can be understood as economic migrants. Just as workers cross borders to find jobs, lawyers “move” across case types and jurisdictions to find profitable claims, and case filing numbers increase as a result. Using the recent wage and hour litigation boom as a case study, this article paints an empirical picture of attorney migration and its influence on case filing numbers.

The New Qui Tam: A Model for the Enforcement of Group Rights in a Hostile Era

The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions – particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf of consumers, workers, and others. Progressive advocates have recently begun working with legislators in a handful of states to provide a qui tam mechanism for enforcing state statutory rights. The form these new laws might take remains uncertain and their enforceability is sure to be hotly contested by corporate interests and others. This article examines the legal and policy challenges that will face “new qui tam” legislation, and considers arguments for and against enlarging the role of citizens in prosecuting claims – an inquiry that requires us to determine the legitimacy and limits of the private attorney general model in its starkest form.