Brian T. Fitzpatrick

How can the author of The Conservative Case for Class Actions say a bad word about a book that argues that private enforcement of the law is a vivid example of American exceptionalism?

I can’t.  We conservatives are a patriotic lot; we shamelessly believe that America is mostly better than the rest of the world.  In my view, this includes even our embrace of private enforcement of the law.  As I wrote in a recent amicus brief I filed in the U.S. Supreme Court:

[P]rivate enforcement of the law is one of the things that makes the United States different—and better—than the other developed economies around the world.  They rely on government to do everything for them.  We don’t—and our markets are more nimble, innovative, and honest because of it.  We get a bad rap for our litigiousness in this country.  But it is merely the worst way to police the marketplace—except for all the others.

Much to my chagrin, the modern conservative movement has forgotten many of the virtues of private enforcement.  In my book, I tried to remind them.  The success has been mixed.  Although conservatives are probably more enthusiastic about private enforcement right now than they have ever been during my lifetime, that’s not saying very much.  There is little doubt that many, many conservatives still have a knee-jerk reaction against the plaintiffs’ bar.

Enter Professor Zambrano.  Even though he is no conservative, his new book, How Americans Enforce the Law, may make the case for private enforcement even better than I did.  Why?  Because my book was all about policy: private enforcers have better incentives than the government, have better resources, are less captured, and are more diverse and decentralized.  Worried about overenforcement?  Don’t: the incentives of private enforcers are more easily adjusted than those of the government.  But policy only gets you so far these days among conservatives—at least among conservative lawyers and judges—because formalism, i.e., textualism and originalism, is the coin of the realm.  That’s not a bad thing, but it left a gap on my side of the aisle.  Professor Zambrano has filled it with something I neglected: history.  It could make all the difference.

In my view, these arguments add a lot of words to the Constitution that aren’t there.  But the arguments have been taken very seriously nonetheless.  For example, a federal district court judge recently ruled that the False Claims Act—which permits private citizens to sue those who defraud the federal government and to keep a portion of anything they recover—is unconstitutional on one of these theories.  Although the Eleventh Circuit reversed, there is another challenge to the Act percolating in the Third Circuit.  It’s not just the lower courts.  There is keen interest in this at the Supreme Court: three Justices have said they are concerned about the False Claims Act, if not inclined to believe that it is unconstitutional.  Some of these same Justices have already pared back standing doctrine for similar reasons.

But Professor Zambrano’s book should cause us to ask how these separation-of-powers theories can possibly be consistent with originalism.  We all know that private rights were always privately enforced through the common law, but, as Professor Zambrano explains, the same was true even of public rights.  Illegal grazing or hunting on public lands?  Illegally importing goods?  Violating quarantines?  Well before the founding, anyone could sue over such things, keep half the fine, and remit half to the government.  The plaintiff need not have suffered a particularized injury; he was called an “informer” because he was informing on the wrongdoer, not seeking compensation for injury.  Indeed, these laws were often dubbed “penal” because they required the defendant to pay penalties, or, as we still know them today, “qui tam”—Latin for “he who brings an action for the king as well as for himself.”  Though these laws are ancient, they are by no means relics.  As Professor Zambrano explains, “the first Federal Congress used informer provisions and qui tam to implement nearly all of its enumerated powers, from military matters to patents to taxation.”  The False Claims Act and our citizen-suit statutes are merely their modern offspring.  How, then, can they be unconstitutional?  They can’t.

Because Professor Zambrano is not writing to conservatives like I was, he doesn’t use this history to challenge these conservative judicial impulses in his book; he leaves that to a related law review article.  He also ends up more sanguine about government enforcement than I am.  He says that, when we create new laws, we should presume that private enforcement is unnecessary and that public enforcement is enough.  Only if public capacity is insufficient, public regulators are captured, and private citizens know more about the wrongdoing than the government does should we let private enforcers in, too.  But, as I explained in my book, I think that gets things exactly backwards: public capacity is almost always dwarfed by private capacity, public regulators are almost always captured at least to some extent, and, as Friedrich Hayek famously showed, millions and millions of dispersed private citizens will almost always know more than any group of government bureaucrats.  If anything needs special justification, it is more government, not less.

Still, I will give Professor Zambrano credit for identifying a problem with private enforcement that I did not address in my book: private litigants who are not motivated by money but by something else—say, revenge or ideology.  As I noted, the case for private enforcement depends on the superior incentives of profit-motivated private litigants and the ease with which those incentives can be adjusted to increase or decrease litigation for the public good.  But if private litigants are not motivated by money, then what?  No amount of adjustment can control them.  Instead, Professor Zambrano argues that, in several areas of the law, private litigants have outright wreaked havoc.  I agree that this is a fruitful area for future study.

In the meantime, Professor Zambrano has given those of us on my side of the aisle a lot to think about.  I hope we listen.

Brian T. Fitzpatrick is the Milton R. Underwood Chair in Free Enterprise and a Professor of Law at Vanderbilt Law School.  He can be reached at brian.fitzpatrick@vanderbilt.edu.