The Fragility of Our Private Enforcement Republic

Guest Blogger

For the Balkinization symposium on Diego Zambrano, How Americans Enforce the Law (Stanford University Press, 2026).

Myriam Gilles 

Introduction

When the German car manufacturer Volkswagen finally confessed in 2015 to having installed “defeat devices” in millions of cars in order to cheat emissions tests, “Diesel-gate” became a staple of corporate-misconduct lore.  But Diego Zambrano’s book invites us to look beyond the scandal itself to the very different ways in which two systems of law responded to it.  In the United States, Volkswagen’s admission triggered an avalanche of lawsuits: within months, more than 50 consumer class actions were filed alongside dozens of individual lawsuits, and the Attorney Generals of more than 40 states commenced enforcement actions. Consolidated before Judges Charles Breyer  in a sprawling multidistrict litigation (MDL), these cases eventually produced a  $11.2 billion settlement offering consumer buybacks, per-vehicle compensation, and billions for environmental remediation.  By contrast, in Volkswagen’s home jurisdiction of Germany, consumers filed a handful of individual suits seeking compensation, but no large-scale aggregation emerged.  Instead, the main response came from public regulatory authorities. 

The contrast between how enforcement is carried out in the U.S. and in other countries, Zambrano argues, is not a cultural or temperamental issue, nor is it the product of ‘American litigiousness.’ Instead, the reason that so much enforcement in the U.S. is carried out by private actions for civil remedies is that Congress and the state legislatures have enacted thousands of statutes providing private rights of action, empowering private litigants to enforce legal mandates alongside (and sometimes, instead of) public regulatory bodies.

How Americans Enforce the Law offers a sweeping account of the America’s enforcement architecture.  Drawing on an original dataset of more than 10,000 federal and state laws enforceable via private rights of action, Zambrano maps a vast statutory landscape.  These provisions range from the familiar (civil rights, antitrust, wage-and-hour) to the some bizarrely idiosyncratic. For example, in Utah, you can sue a drug dealer for harm caused by someone else’s drug use; in South Carolina, you can sue someone who desecrates a family member’s grave; New Jersey lets you sue pet dealers who offer cat or dog leases (pp. 2-3).  These aren’t quirks, Zambrano argues, but a manifestation of how American legislators have always governed:  by deputizing private citizens to serve as roving enforcers.  Based on his empirical research, California and Texas lead the nation with nearly 200 private rights of action each -- but even small states like Utah and New Hampshire are adding new private rights of action to tackle cutting-edge problems, from social media’s effects on children to red state-blue city conflicts (pp. 8-9). On Zambrano’s account, if we really want to understand how American law is enforced, we need to look first to private citizens and the plaintiffs’ bar, not to bureaucrats in Washington or state capitals. 

Why did the United States develop this way?  Here Zambrano positions himself against two prominent accounts.  Robert Kagan’s “adversarial legalism” emphasizes the uniquely American legal style – lawyer-driven, formal, contentious – operating against a fragmented, “weak” state. Sean Farhang’s “litigation state” asserts that legislative choices to empower private citizens reflect Congressional mistrust of the President to adequately enforce the law.  Zambrano finds both accounts fall short.  Kagan’s notion of a culturally-bounded ‘legal style’ is too vague, obscuring the particular legislative mechanism – the private right of action – that makes adversarial legalism viable.  Farhang’s account may well explain why some federal statutes feature private rights of action, but fails in the states, where Zambrano’s statistical work reveals no correlation between partisan control of government and the adoption of private rights of action (pp. 51-53). 

In their place, Zambrano offers a model he calls “layered path dependence” (pp. 132-157).  Private enforcement, he shows, has deep roots in English penal statutes and early American informer and qui tam actions. Parliament empowered “common informers” to sue wrongdoers and keep a share of the penalty or fine imposed – incentives the 17^th century political economist Charles Davenant described as designed “to stir up the People to put the Laws in Execution.” (p. 66-70). Colonial legislatures followed suit:  Jefferson and Madison drafted Virginia legislation packed with informer provisions; John Adams handled dozens of qui tam cases as a colonial lawyer; and the first Congress used private enforcement to implement nearly all its powers (pp. 72-76). This was by necessity, as the new republic lacked the resources to build out a robust public enforcement bureaucracy and so had to rely upon citizens themselves. 

The critical modern juncture arrived in 1914, when Congress paired the new Federal Trade Commission Act with the Clayton Act’s private right of action and treble damages (pp. 94-97). That “double-barreled” design, coupling agency enforcement with private litigation became the template for the many new agencies established in the decades that followed, including the FTC, the Wage and Hour Division of the Labor Department, the EEOC, the Justice Department’s Antitrust Division, and the EPA (pp. 109-114). 

B.   Procedure as the Missing Operating System 

The final layer in Zambrano’s story is procedural, and it’s here I want to press the argument further.  A statutory right of action does not enforce itself. What transformed these rights into instruments of governance was the ability to use them in conjunction with modern procedural rules – most notably, the liberal discovery enabled by the 1938 Federal Rules and the opt-out class action created by the 1966 amendments to Rule 23.  Together, these devices provided lawyers with tools that rivaled or even surpassed those of public agencies: access to internal corporate documents and the capacity to aggregate dispersed harms into a single, formidable regulatory force. 

Yet in How Americans Enforce the Law, procedure is relegated to the background.  This is less a critique of Zambrano’s account than an invitation to expand on it by showing that private rights of action are only operational when coupled with the procedural mechanisms that ensure their viability. And the moment is ripe because the procedural infrastructure that private rights of action depend upon has been under assault over the past four decades, as the courts and Congress have stripped many of these devices of their power to turn rights on paper into rights in action.  The Supreme Court’s arbitration jurisprudence – typified by cases like ATT v. Concepcion, American Express v. Italian Colors and Epic Systems v. Lewis -- now allows corporations to bar public class actions outright, even where individual claims are economically impossible to pursue. TransUnion v. Ramirez and its progeny have made Art. III standing doctrine hostile to precisely the diffuse, systemic injuries that private enforcement is meant to reveal. Twombly and Iqbal raised the pleading bar in ways that disproportionately burden plaintiffs who lack the internal information that discovery was designed to uncover.  Lower federal courts have layered on ascertainability, predominance, and manageability requirements that make certification of class actions increasingly more difficult. And Congress has contributed its own constraints on private enforcement through the Private Securities Litigation Reform Act and the Class Action Fairness Act. 

If we agree with How Americans Enforce the Law that the ‘operating system’ for private enforcement consists of three key components – the right to sue, access to information and access to court -- then the current dismantling of that system turns statutory rights into pure pretense.  Rights remain on the books, while the mechanisms that animated them have been hollowed out. What survives resembles How Americans Enforce the Law only in outline. 

C.  The Vanishing Claimant and the Stakes of Fragility

Once procedure moves to the center of the analysis, the erosion of aggregation can’t be treated as doctrinally neutral.  When class actions vanish and arbitration clauses proliferate, specific groups of litigants disappear from public dockets – the low-wage worker victim of wage theft, the consumer victimized by junk fees or usurious interest rates by a payday lender, the civil rights plaintiff with individual claims too small to justify looking to the courts for relief. Under-enforcement is not randomly distributed; it is concentrated in the very areas where private enforcement once had the greatest normative and positive value.  So, as a friendly amendment to Zambrano’s three criteria for determining when private enforcement brings real enforcement value -- capacity, dysfunction and information – I would add a fourth:  distributional visibility.  A regime that protects rights only for people who can sue on their own, while extinguishing those same rights for those who can only vindicate them in the aggregate, poses a democratic problem. Rights that exist on paper but can’t actually be enforced let people mistake the appearance of protection for the real thing. 

The path forward is to take the “double-barreled” insight seriously again: treat agencies and private litigants as complements, not substitutes, and rebuild collective enforcement where it’s been eroded.  That doesn’t necessarily mean doubling down on Rule 23. State models like California’s Private Attorney General Act, reinvigorated qui tam regimes, and other hybrid public-private structures point to alternative architectures for collective enforcement.  And when paired with real accountability, transparency, and oversight, these mechanisms respond to Zambrano’s concerns about rent-seeking without sacrificing aggregation itself. 

That’s the deepest lesson of Zambrano’s book:  debates over arbitration, class certification, pleading, and standing aren’t just technical squabbles among proceduralists, but choices about the fate of the private enforcement republic itself -- about whether the rights Americans have written into law stay enforceable in practice or become symbolic promises without real function. 

Myriam Gilles is Catharine Waugh McCulloch Professor of Law, Northwestern Pritzker School of Law.  You can reach Myriam via email at myriam.gilles@law.northwestern.edu.