The Politics of Access: Examining Concerted State/Private Enforcement Solutions to Class Action Bans

Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in any form of collective litigation. This Article, written for a colloquium dedicated to the persistent problems of representation and access, explores the politics of regaining citizens’ rights to aggregate litigation in the wake of the Supreme Court’s broad endorsement of these class-ban provisions in AT&T Mobility LLC v. Concepcion. Given the political climate in Washington, D.C., it is a safe bet that federal legislation will not overrule Concepcion anytime soon. Meanwhile, state legislation constraining class-banning arbitration clauses faces the unremitting threat of FAA preemption. But scholars and access-to-justice advocates have begun to focus on a third avenue for overcoming claims—suppressing class action bans, referred to in this Article as “concerted state/private enforcement solutions.” Concerted state/private enforcement can take several forms—whether it’s state Attorneys General engaging private counsel to pursue parens patriae damages cases under the AG’s direction, utilizing a qui tam model, or creating a regime where government enforcers obtain liability verdicts that private parties can use as conclusive proof in individual arbitrations. Each holds its own promises and poses its own challenges. But unlike head-on state legislation, the concerted state/private options are all viable as a legal matter. The question of political viability, however, is more nuanced. This Article explores the unique political calculus for states confronting the implications of the various forms of state/private concerted enforcement activity as a way to restore their citizens’ access to justice in the post-Concepcion era

On Corruption and Institutions in Decentralized Eco

This paper presents a model of opportunistic behaviour in decentralized economic exchange and considers the impact of inadequate institutional framework of formal contract enforcement on economic performance. It is shown that (i) when the number of cheating traders is sufficiently large, inadequate institutions result in a loss of decentralized trading contracts, (ii) an adequate institutional framework, while being necessary for the attainment of a Pareto optimal outcome, may not be sufficient if traders perceive it as inadequate; and (iii) sufficiently good formal enforcement provisions help deter contractual breach in enviroments with corrupt and powerful enforcers.Formal contract enforcement; perceptions; transition economies

Enforcement Piggybacking and Multistate Actions

Civil enforcement in the United States is uniquely “multienforcer.” Numerous public and private enforcers including federal agencies, state attorneys general (AGs), and private litigants have overlapping authority to enforce myriad federal and state laws. Ideally, enforcers would complement one another’s efforts and use their comparative enforcement advantages to broaden the scope of enforcement and act as a check on underenforcement. But in reality, enforcers are often attracted to the same targets—large, public, deep-pocketed corporations. This means that multiple enforcers may pursue essentially the same enforcement action, arising from the same series of events and against the same target. Redundant enforcement actions may be necessary to adequately deter future misconduct and compensate victims of corporate fraud. However, duplicate actions may simply be the result of enforcers “piggybacking” on one another’s efforts and “piling on” to high-profile and lucrative enforcement actions. Scholarly conversations about enforcement often treat broad categories of enforcers as static substitutes for one another rather than considering them as dynamic actors who are intertwined together. AGs are an example of dynamic enforcers that have changed the enforcement landscape by combining together in multistate actions. In some ways, state enforcement is a microcosm of the broader multienforcer system, with multiple state enforcers who can bring duplicative actions under fifty states’ laws. AGs can piggyback in multistate actions much like other public and private enforcers routinely do in enforcement actions. However, multistate actions don’t merely mimic the dynamics that occur in a multienforcer system. Multistate actions are also an innovation that changes the enforcement environment, potentially intensifying the practices of piggybacking and piling on in a multienforcer system

Law Enforcement of the Bandung Regional Regulations on the Orderliness, Cleanliness, and the Beauty

The Number of sidewalk vendors in Bandung has reached 11,000 with no decline in growth according to the survey conducted by Indonesian University of Education/ Universitas Pendidikan Indonesia (UPI) in collaboration with Badan Perencanaan dan Pembangunan Daerah (Bappeda or regional development planning agency) Bandung. Sidewalk vendor is one of the main contributors to the dirtiness and traffic congestion in Bandung. Bandung has passed a Regional Regulation Numbered 3 and 5 about Cleanliness, Orderliness and the Beauty to prevent and to build the sidewalk vendors. However, lack of legal awareness and law enforcement may constrain the effectiveness of the regulation. Those regulations are particularly Bandung Regional Regulation Numbered 4/ 2011 concerning sidewalk vendors in which imposing high fine sanction not only for the seller but also for the buyer to prevent them from violating those regulations. To analyze the the compliance level of society and the effectiveness of fine sanction for the violation of regulations, this research used juridical normative approach and comparative method by comparing the regulation in Bandung with other Regional regulations related to sidewalk vendors in other cities in Indonesia such as in Surakarta and Surabaya. This research found that the law enforcement to the violation of sidewalk vendors regulation in Bandung city is not optimum due to lack of awareness to obey the law. The criminal sanction such as fine and forced fees are not able to prevent the violation of sidewalk vendors regulations. This research suggest that The Regional government of Bandung City: (1) needs to find a right model to keep sidewalk vendors in order by looking at the characteristics of the society and its social culture; (2) needs to search for a way to increase society's compliance to any policies made by the government; and (3) needs to revise the current regulatio

Human Rights Protection on Determination for the Suspect of Corruption Crimes

The pre-trial concept in Indonesia was inspired by commissioner judges in European countries. Basically, a pretrial application is submitted to the court, if there are rights violated. The right to file a pretrial is owned by a suspect or victim, his family, or other authorized parties, investigators and prosecutors, and third parties. Cases that can be applied for pretrial include whether or not the arrest and or detention is valid, whether or not the termination of the investigation or termination of the prosecution, the request for compensation and rehabilitation are valid or not. The judicial process in Indonesia is based on Pancasila, which places human dignity and dignity in its place and implements human rights protection and guarantees. The implementation of the Criminal Procedure Code has stated that pretrial functions are for the purpose of supervision of the protection of the rights of suspects in preliminary examinations of a criminal case, which in principle prioritizes giving protection to human rights since the Criminal Procedure Code also holds a principle of presumption of innocence which essentially states that no one can be found guilty as long as there is no permanent decision from a court hearing. Keywords: corruption crimes, human rights, protection, suspects. DOI: 10.7176/JLPG/87-18 Publication date:July 31st 2019

Airbnb in New York City: Whose Privacy Rights are Threatened by a Government Data Grab?

New York City regulators have vigorously resisted the rise of Airbnb as an alternative to traditional hotels, characterizing “home sharing” as a trend that is sucking up permanent housing in a city already facing an affordability crisis. However, laws banning short-term rentals have done little to discourage this practice, as Airbnb’s policy of keeping user information private makes it possible for illegal operators to evade law enforcement. Frustrated by this power imbalance, the New York City Council passed Local Law 146, which requires Airbnb to provide city officials with access to the names and information of its home sharing hosts on a monthly basis to assist with law enforcement efforts. Airbnb claims that the ordinance is a flagrant violation of its own privacy rights and the rights of its customers. Local Law 146 is the culmination of the regulatory struggle over Airbnb in New York City, but it is also a flash point for government data-collection efforts generally. Because of the massive potential of using private companies’ data to aid in law enforcement efforts, the implementation of data-collection statutes could be an attractive policing tool. Using Local Law 146 as a lens, this Note examines the privacy issues implicated by datacollection laws and discusses which parties can assert these privacy rights, particularly given recent changes in third-party doctrine jurisprudence. Ultimately, this Note concludes that, while the outcome of Airbnb’s challenge to Local Law 146 will be an important indicator, the suit will not resolve the question of whether individual Airbnb hosts could successfully challenge this law without the support of the company. Individual challenges to sweeping data-collection statutes could be the next frontier in breaking down the third-party doctrine’s barrier to Fourth Amendment protections