Private Enforcement in Administrative Courts

Scholars debating the relative merits of public and private enforcement have long trained their attention on the federal courts. For some, laws giving private litigants rights to vindicate important policies generate unaccountable "private attorneys general" who interfere with public enforcement goals. For others, private lawsuits save cash-strapped government lawyers money, time, and resources by encouraging private parties to police misconduct on their own. Yet largely overlooked in the debate is enforcement inside agency adjudication, which often is depicted as just another form of public enforcement, only in a friendlier forum. This Article challenges the prevailing conception of administrative enforcement. Based on a comprehensive examination of over eighty administrative courts, I find that agencies rarely enforce on their own. Among other things, private parties may have procedural rights to file regulatory complaints, trigger agency investigations, demand evidentiary hearings, join public enforcement actions as parties, and even pursue claims without the involvement of the agency's enforcement arm. Although some administrative enforcement is virtually indistinguishable from either public or private enforcement in federal court, more often administrative schemes employ attributes of both

Presidential Maladministration

Following her service in the Clinton administration, then-Professor Elena Kagan wrote, "[w]e live today in an era of presidential administration."' Kagan argued that while Congress, the bureaucracy, and interest groups all continued to influence federal regulatory policy, the president had assumed a position of comparative primacy vis-A-vis these other actors.2 Although some were troubled by strong presidential control over the discretion delegated to federal agencies by Congress,3 Kagan maintained that the tools used by President Clinton to influence federal agencies would enhance the political accountability and effectiveness of regulatory policy.4 Clinton's increased use of formal directives to agency heads-which shaped their regulatory agendas, spurred them to action, and nudged them towards his preferred policies-and his public appropriation of regulatory decisions as an extension of his own policymaking goals rendered government policy more transparent and accountable.5 By publicly asserting ownership of agency action, Clinton made clear who to credit or blame for government policy.6 In addition, Kagan argued the president's participation in regulatory agenda setting would improve the effectiveness and dynamism of federal agencies.7 Agencies would be more likely to act expeditiously to solve national problems, and act in a way that was effective and rational.' Finally, a president seeking to grow his base would advance policies supported by the general public rather than parochial private interests, thus promoting democratic norms.9 Although Kagan recognized that presidents would not always highlight their role in policymaking, and would sometimes serve narrow interests, Kagan posited that when presidential control was highly publicized, the resulting government policy would be more representative of the broader electorate than policies shaped by Congress, the Judiciary, the bureaucracy, or interest groups.1

Democratizing Rule Development

Agencies make many of their most important decisions in rulemaking well before the publication of a Notice of Proposed Rulemaking (NPR), when they set their regulatory agendas and develop proposals for public comment. Agencies' needfor information from outside parties and openness to alternative courses of action are also generally at their greatest during these earlier stages of the rulemaking process. Yet regulatory agenda setting and rule development have received virtually no scholarly attention. The literature generally treats what happens before publication of the NPRM as a "black box" and suggests that agenda setting and rule development are primarily influenced by political considerations and pressure from well-organized groups. Other interested stakeholders, including regulatory beneficiaries, smaller regulated entities, state, local, and tribal governments, unaffiliated experts, individuals with situated knowledge of the regulatory issues, and members of the general public, are routinely absent. While there is undoubtedly much truth to this understanding, a recent study we conducted for the Administrative Conference of the United States unearthed significant efforts by numerous federal agencies to engage the public long before the publication of an NPRM. The existing efforts, however, tend to be relatively unstructured, unsystematic, and ad hoc. Moreover, many opportunities for public engagement are voluntary and self-selecting, which do little to overcome the barriers to participation by traditionally absent stakeholders. Rule development thus warrants more systematic focus and attention to ensure that agencies fully engage all relevant stakeholders in each rulemaking in which they have relevant knowledge, experience, or views thereby promoting the democratic aspirations of regulation

Trading up: Is Section 337 the New ATS?

There is a crisis in international human rights law. In a series of cases, the Supreme Court has drastically reduced the Alien Tort Statute's ("ATS") utility as a vehicle for transnational justice, effectively ending a remarkable four-decade string of human rights litigation under the statute. Since 1980, private plaintiffs have filed hundreds of ATS suits in federal courts seeking to hold a rogue's gallery of international despots, torturers, mass murderers, and their corporate accomplices accountable for violations of international law. But ATS suits proved controversial. The Court's hamstringing of the ATS was driven largely by concerns over assertions of extraterritoriajlu risdiction by private parties that might embroil the United States in sensitive foreign policy disputes. As internationally minded social justice activists and scholars mourn the ATS's demise, they are avidly seeking a replacement. Many increasingly look to state law and state courts as a vehicle for transnational redress. Yet, state law is even more problematic than the ATS as a vehicle for asserting extraterritorial jurisdiction