James E. Pfander

In How Americans Enforce the Law, Diego Zambrano sets out to document and to explain that distinctively American legal institution: the private lawsuit aimed at the enforcement of public law.  In a book length treatment of the subject that combines careful study, elegant theorizing, and inspired description, Zambrano provides an exceptionally readable and engaging account of the history, current practice, and theoretical justification of private litigation.  We get both the telling historical tidbit, in Zambrano’s account of the molasses trade in eighteenth century British North America, and the compelling tectonic explanation, in a theory of layered path dependence that helps us to see how we arrived at this point.  With its account of laws, lawyers, and civil procedure, the book will appeal to longstanding students and to new initiates seeking a better understanding of what private civil litigation has come to mean in a country that contains multitudes.  The author’s learning and vivid storytelling make this book both a pleasure to read and a major scholarly accomplishment.

Zambrano finds value in private enforcement.  Not just its pedigree, which runs back to medieval England, and takes root in the colonial and founding eras in America.  Not just in its lengthy list of supporters and defenders, which include such notables as Adams, Jefferson, Madison. Not just in the sheer breadth of its appearance in both state and federal legislation, what with Zambrano’s survey of some 10,000 such statutes at the state level.  But also in its ability to deliver the enforcement goods.  His contrast between the private enforcement model of America and the government enforcement monopoly in France leaves little doubt as to where his sympathies lie; Americans delivered more effective justice more quickly for the victims of this country’s massive oil spills than did the French bureaucracy for the victims of its major spill. 

[A]n English and colonial tradition of informer suits created an accepted template, weak bureaucratic capacity and wariness of government monopoly over enforcement periodically renewed its appeal, and the powerful lawyers’ lobby (unique to the United States) alongside modern civil procedure turned it into a mass-litigation engine.

While he does not straight up reject the accounts of others, such as Robert Kagan’s emphasis on the American tendency toward adversary legalism or Sean Farhang’s account of the legislature’s use of private enforcement as a check on divided government (current or anticipated), Zambrano takes these leading accounts on board with a critical grain of salt. In his complex account of the layers of law and policy that undergird private enforcement today, Zambrano comes back time and again to a persisting fear of monopoly power.  American elites, he explains, have consistently resisted giving public officials “a monopoly on enforcement.”  Private litigators confront different incentives and realities; private lawsuits will target different violations than public suits and will avoid regulatory capture problems. Why rely on one model of enforcement, public or private, when you can have both?

            Both, Zambrano tells us, has been Congress’s consistent choice.  Since its decision in 1914 to adopt both the Clayton Act and the Federal Trade Commission Act, American legislators repeatedly chose “both bureaucratic expertise and private litigation as complementary solutions.”  One sees this choice reflected in the great rights-conferring legislation of the twentieth century, which includes the Fair Labor Standards Act and the Civil Rights Act of 1964, both of which establish an agency to play a supportive role but assign the task of litigation to private parties and their lawyers.  Private enforcement succeeds in America in no small part because the private litigation ecosystem incorporates wide-ranging tools of discovery, contingency-fee finance, and the Rule 23 class action, all of which help to run the machine.  Then, too, the fact that the private bar has long been an effective lobbying force may help ease the choice of private enforcement in Congress.

            Sometimes, things go awry.  Private enforcement schemes can overstay their welcome and introduce their own pathologies.  Zambrano pulls no punches in criticizing the excesses of private environmental enforcement, which he views as having erected a virtually insurmountable barrier to affordable housing and other urban construction needs.  Here, Zambrano’s talent for telling comparative assessment provides further insight; he explains that other countries plan and complete major public infrastructure projects more cheaply and expeditiously.  Generalizing, Zambrano devotes a chapter to how legislatures can get private enforcement right.  Since the beginning, private enforcers have been driven by goals that do not always align with the public interest.  The challenge lies in properly calibrating enforcement incentives and maintaining some ongoing contact with the performance of private-enforcement regimes, instead of taking a set-it-and-forget-it approach. 

            Along the way, Zambrano tackles interesting private enforcement puzzles.  Perhaps most intriguing, Zambrano explores why private enforcement has largely disappeared from criminal law, especially at the federal level.  Bureaucratic capacity certainly tells the story in part; the DOJ has grown considerably since its creation after the Civil War.  But Zambrano also explains that criminal matters may remain with the government for a set of structural reasons.  Victims of criminal behavior cannot readily work together to secure private enforcement statutes; the absence of interest group cohesion may undercut interest group support for any change.  Moreover, the modest financial stakes in much criminal misconduct means that the private bar may have little interest in pursuing the claims in question.  Zambrano’s complex answers capture more of the truth than simplistic theories associated with the supposed demands of Article II’s provision for presidential “care” in the faithful execution of the laws.

            Article II does not brook large in Zambrano’s account, furnishing a baseline of presumed public enforcement that Congress can supplement by supplying a private right to sue.  Zambrano uses this construct of presumed executive enforcement primacy to structure the legislative process as members of Congress contemplate private enforcement.  On the list, Zambrano includes such sensible items as public enforcement capacity, the risk of shifting priorities, the prospect of regulatory capture, and the possibility of agency corruption.  All sensible questions that a thoughtful, deliberative, politically balanced Congress might wish to take on board.  But complexity enters the picture as enforcement capacity changes along with public priorities, yielding a stew of relevant considerations that may defy even the most well-informed legislative engagement.

            That stew of considerations informs Zambrano’s theory of layered path dependence.  He first offers a searching review of the competing accounts of Farhang (legislative distrust of executive enforcement priorities) and Kagan (adversarial legalism as a distinctively American habit), showing the many ways those theories fail to account for several of the relevant moving parts.  Synthesizing those moving parts occupies a full chapter of Zambrano’s theory of American-style private enforcement. In Zambrano’s telling, it was not one thing; it was this and this and this.  Some readers may respond to the richness of Zambrano’s origin and development story with a yearning for parsimony – a simple account with fewer moving parts.  But like life and history, the development of American-style private enforcement was contingent; it was dependent on a variety of factors that might have unfolded in a different way.  Perhaps without an established bar to lobby for a private enforcement role, the progressives would have abandoned private enforcement altogether in favor of the bureaucracy and today’s world would look very different.  Perhaps without the deliberate choice in 1914 to create an FTC and a regime of private enforcement, the use of both mechanisms of enforcement would not have taken hold.  If not entirely simple, Zambrano’s account has the virtue of staying true to the sources and to his command of the subject.

And anyway, Zambrano gives us a parsimonious bottom line:  Americans distrust the placement of an enforcement monopoly in the bureaucracy.  While Zambrano has written elsewhere that the history of private enforcement disproves any claim that Article II confers a public law enforcement monopoly on the executive, this book treats the subject more by way of example than by way of extended constitutional analysis.  Zambrano shows a history of reliance on private enforcement and then describes the decision of President Trump to deny enforcement to legislation banning TikTok from the internet as every Congress’s nightmare scenario.  Congress enacted the law, the Supreme Court approved its enforcement, and then President Trump directed the DOJ to refrain from enforcing the law.  Zambrano points out that, as with other convention-busting instances of apparently arbitrary presidential conduct, this one represented an exercise of the executive dispensation power -- – something that the English rejected in their seventeenth-century declaration of rights and we rejected in our eighteenth-century Constitution.  The Take Care Clause of Article II provides no license to dispense with law enforcement but imposes a duty on the president to ensure enforcement.  Alas, we have learned repeatedly during Trump II that the president cannot be compelled to honor this Take Care duty.  Zambrano shrewdly observes that a private right of action could have solved the problem.

James E. Pfander is Owen L. Coon Professor of Law at Northwestern Pritzker School of Law. You can reach him by e-mail at j-pfander@law.northwestern.edu.