A New Vision of Public Enforcement

Abstract

Civil rights laws are not self-enforcing. Enforcement mechanisms, therefore, need to be studied as part of the larger debate on the form and direction of civil rights law. The current decline of the ability of the private attorney general to fairly and consistently enforce our civil rights laws argues for a renewed emphasis on the importance and form of government enforcement. Focusing on the Americans with Disabilities Act, this Article presents a new vision of public enforcement. After explaining the historical, theoretical, and practical strengths of public enforcement - all things that cannot be completely outsourced - this Article suggests that public enforcement officials need to renew their commitment to structural litigation. Because public enforcement is inherently political, this Article attempts to build the case that such enforcement is needed and can be effective. In recognition that litigation, even of the structural variety, will always be an incomplete enforcement strategy, this Article also considers the role of public officials in non-litigation activity. In particular, it offers a novel application of new governance theory to public enforcement activity, concluding that government programs that focus on collaboration, information sharing, and cooperative interactions should supplement - not supplant - an aggressive litigation policy.