Introduction
Texas’s so-called “heartbeat” abortion bill took effect on September 1, 2021,
and it immediately spurred a nationwide debate in the legal community
and the broader public.
The law, known as S.B. 8, bans medical providers from providing abortion care whenever an ultrasound can detect electrical activity in embryonic cells, which Texas lawmakers defined as a fetal heartbeat
and can appear as early as six weeks into pregnancy.
Importantly, the law puts forth a unique enforcement regime: It prohibits state and local officials from bringing criminal prosecutions or civil enforcement actions and instead empowers private citizens to bring civil actions to punish statutory violations.
If these private enforcers prevail at trial, they are rewarded with $10,000 in statutory damages per offense and attorney’s fees.
While the Supreme Court’s decision to abandon the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization
mooted many of the federal constitutional arguments against S.B. 8’s restrictions,
the law’s enforcement mechanism and its implications have commanded continued scholarly attention.
In the debate over S.B. 8’s legitimacy, scholars have emphasized the differences between “traditional” private enforcement regimes and the “recent” adaptations that employ similar enforcement mechanisms as S.B. 8. This Note draws on Professor Sean Farhang’s definition of “private enforcement regimes” as the set of legislative decisions that determine “who has standing to sue, which parties will bear the costs of litigation, what damages will be available to winning plaintiffs, whether a judge or jury will make factual determinations and assess damages, and rules of liability, evidence, and proof.”
Traditional private enforcement regimes include the many well-established statutes that have tasked members of the public with enforcing regulatory laws,
including antidiscrimination law,
banking regulation,
and consumer protection.
According to Professor Luke Norris, these traditional private enforcement regimes fall into one of two lanes: (1) when the private enforcer is alleging direct, individualized harm that the regulation prohibits, or (2) when the private enforcer seeks to vindicate a shared public interest.
Scholars have attacked the recent private enforcement regimes by distinguishing the statutes’ targets and motivations from their traditional analogues. Professors Jon Michaels and David Noll have argued the recent enforcement regimes, which they refer to as “private subordination regimes,”
are both the result of improper motives by state legislatures and the “product of . . . populist outrage discourse” that has recently emerged in right-wing politics.
As Michaels and Noll note, these laws are frequently passed by GOP-led state legislatures.
Professors Stephen B. Burbank and Farhang’s research shows that in the past eight years, Republican Party support for private enforcement has grown substantially, challenging the conventional wisdom that business-friendly Republicans are generally opposed to statutory provisions facilitating access to the courts.
Burbank and Farhang argue this contradiction represents a major realignment in party dynamics that was spurred in part by conservative distrust of the Obama administration as an adequate enforcer of the conservative rights agenda.
One argument against these recent enforcement regimes is that unlike traditional private enforcement regimes, which are designed to vindicate individual harms or shared public interests, the recent enforcement regimes are motivated by partisan beliefs and enforced by “culture warriors” who often have not suffered a material harm before bringing an action.
While the traditional–recent distinction has helped legal commentators develop theories on how society and the federal court system should adapt to the recent enforcement regimes,
this distinction does little to explain how legislatures should evaluate prospective enforcement regimes. Scholars have argued that legislatures should design private enforcement regimes to fit the “particular social and legal contexts in which [the] unremedied systemic problems arise.”
Since the traditional–recent binary speaks in broad categories, legislatures may find this to be an unhelpful tool when forced to evaluate future private enforcement regimes in their fact-specific contexts. A more comprehensive categorization that accounts for the unique structure of the recent enforcement regimes could clarify how legislatures should view future laws that resemble the recent private enforcement regimes.
This Note argues that analyzing California’s Private Attorney General Act (PAGA) alongside the recent enforcement regimes can help develop a more nuanced private enforcement framework, specifically for qui tam actions. Qui tam is a subcategory of private enforcement in which private parties, rather than suing to vindicate their individual rights, instead assume the government’s role and bring claims on its behalf.
The California Supreme Court has described PAGA as a “type of qui tam action” that conforms to all of the traditional criteria of a qui tam provision.
This Note argues that the recent enforcement regimes share enough similarities with PAGA to more precisely be categorized alongside PAGA within this smaller qui tam subset of private enforcement regimes. Evaluating the recent enforcement regimes against other qui tam actions will offer more helpful insights into the laws’ practical and normative shortcomings.
To assist legislatures performing this evaluation of qui tam private enforcement provisions, this Note offers a practical Taxonomy for qui tam provisions. The current literature on private enforcement views qui tam as a homogenous species of private enforcement and does little to identify any distinctions within qui tam itself.
This Note attempts to fill this scholarly gap by creating a Taxonomy that places a qui tam provision within six distinct categories according to the nature of the underlying governmental claim, the practical effect of the provision, and the normative values underlying the provision. This theoretical framework for qui tam draws heavily from recent scholarship on private enforcement’s theoretical purposes and core rationales.
The framework also draws from qui tam-related scholarship and case law to present an original contribution differentiating between the public and proprietary government claims underlying the qui tam action. The purpose of this categorization effort is to give legislatures a rubric to evaluate the legitimacy of proposed qui tam actions.
Importantly, legislatures likely enacted the recent qui tam provisions not to take advantage of the administrative efficiency of qui tam provisions but rather to evade judicial review. The Texas legislature adopted S.B. 8 to insulate the measure from then-constitutional limits on abortion restrictions.
A state legislature looking to perform an illicit end run around judicial protection of an established constitutional right will likely not bother to evaluate the legitimacy of the provision. The law’s ability to successfully violate established constitutional rights—in other words, its illegitimacy—would likely be the point of such a measure.
Acknowledging this reality, however, does not eliminate the potential for states to adopt public qui tam provisions in good faith. In fact, before the recent spate of S.B. 8–style enforcement regime enactments, legal academics were calling for an expansion of state qui tam provisions to solve a variety of legal problems.
This Note proceeds in three parts: Part I presents the history and background of three qui tam private enforcement models this Note uses to develop its Taxonomy; Part II presents the Taxonomy and categorizes the three qui tam models accordingly; and finally, Part III argues state legislatures looking to adopt public qui tam provisions should look to the PAGA model as a more practical and normatively justifiable alternative to the recent enforcement regimes, specifically comparing PAGA to Cal. S.B. 1327, a California law that adopts S.B. 8’s problematic enforcement mechanism.