For the Balkinization symposium on Diego Zambrano, How Americans Enforce the Law (Stanford University Press, 2026).
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.
But Zambrano does not unstintingly praise our distinctively American model of private enforcement. As he observes,
[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.