Academic journal article The Yale Law Journal

Agencies as Litigation Gatekeepers

Academic journal article The Yale Law Journal

Agencies as Litigation Gatekeepers

Article excerpt

ARTICLE CONTENTS  INTRODUCTION  I. THE TROUBLE WITH PRIVATE ENFORCEMENT AND THE CHALLENGE OF    REGULATORY DESIGN     A. The Rise of the "Litigation State"    B. Refining the Critique of Private Enforcement       1. The Zealousness Critique       2. The Coordination Critique       3. The Legislative Fidelity Critique    C. The False Promise of "Litigation Reforms"  II. THE GATEKEEPER ALTERNATIVE: FLAVORS OF AGENCY GATEKEEPING     A. Taxonomy: Agency Gatekeeping in Five Dimensions       1. Affirmative/Residual       2. Retail/Wholesale       3. Binding/Advisory       4. Passive Gate/Active Displacement + Control Rights       5. Veto/License    B. Using the Taxonomy and the Road Ahead  III. THE OPTIMAL DESIGN OF AGENCY GATEKEEPER REGIMES     A. The Ideal Gatekeeper Role       1. The Ideal Wholesale Gatekeeper       2. The Ideal Retail Gatekeeper     B. Deviations from the Gatekeeper Ideal       1. Institutional Competence and Capacity       2. Regulatory "Capture"       3. Political Oversight and Bureaucratic Behavior  C. Synthesis: Choosing Among Gatekeeper Designs and Tweaking    Gatekeeper Performance  IV. AGENCY GATEKEEPING IN ACTION: REIMAGINING JOB DISCRIMINATION     REGULATION     A. The Challenge of Job Discrimination Regulation After Wal-Mart       Stores v. Dukes     B. Proposal: Reforming the Regime by Remaking the EEOC's Gatekeeper       Role        1. Dismantling EEOC Charge Processing       2. A New "Systemic" Action and Robust EEOC Gatekeeping       3. Countering Likely Objections  CONCLUSION 

INTRODUCTION

One of the most controversial developments in the American regulatory state in recent decades is a marked shift away from administrative regulation and enforcement and toward the use of private lawsuits as a regulatory tool. (1) Champions of that trend assert that deputizing "private attorneys general" to enforce legal mandates is desirable and even necessary: private enforcement leverages private information, expertise, and resources while serving to check "capture" of public enforcement agencies by regulated parties. (2) Critics, by contrast, cast private enforcement as overzealous, uncoordinated, and democratically unaccountable. (3) Across a range of regulatory contexts, from environmental protection and civil rights to antitrust and securities, the resulting institutional design challenge is how to leverage private enforcement's virtues while mitigating its vices. More broadly, how can we rationalize overlapping and interdependent public and private enforcement mechanisms?

In recent years, a growing chorus of commentators has offered an intriguing answer: vest administrative agencies with the power to oversee and manage private litigation efforts. Agencies, it is said, can use their expertise and synoptic perspective to weigh costs and benefits and determine whether private rights of action should lie at all. (4) Alternatively, agencies might be given the power to evaluate private lawsuits on a case-by-case basis, blocking bad cases, aiding good ones, and otherwise husbanding private enforcement capacity in ways that conserve scarce public enforcement resources for other uses. (5) While the specific institutional designs vary, these proposals share a common aim: regulating private litigation efforts by granting agencies what I call litigation "gatekeeper" authority. (6)

Yet despite such calls, we lack a synthetic account of how agencies should or would exercise litigation gatekeeper powers and, by extension, how best to structure such authority. (7) This is surprising. A number of federal and state agencies already wield gatekeeper powers, offering critical but mostly untapped opportunities for empirical assessment. (8) Calls to grant agencies gatekeeper powers also raise significant but underexplored questions about whether agencies can or will deploy such powers in ways that serve rather than undermine the public good. Agencies may simply lack the capacity to accurately gauge case merits, or they may privilege pursuit of political rewards over welfare-maximizing regulation of private enforcement efforts. …

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