Towards Optimal Enforcement

Abstract

In Private Enforcement in Administrative Courts, Professor Michael Sant'Ambrogio argues that a hybrid private/public enforcement model in agency proceedings may provide the best hope of achieving optimal federal law enforcement. In other words, a blunderbuss approach of choosing public enforcement or private enforcement (whether in judicial or agency proceedings) is unlikely to prove ideal. He identifies various tools--such as agencies' role in the review or initiation of proceedings, or the use of class-wide proceedings--that Congress or agencies can use to calibrate agency enforcement to its optimal design. I consider three additional tools that may optimize enforcement goals with hybrid public and private enforcement, whether inside or outside of administrative proceedings: (1) statutorily-mandated primary jurisdiction, (2) enforcement in either judicial or agency proceedings by state authorities, and (3) limits on federal preemption of concurrent state-law private causes of action.

Keywords: administrative law, agency, enforcement, public enforcement, private enforcement, primary jurisdiction, preemption