Private Enforcement Archives - Columbia Law Review

Introduction Texas’s so-called “heartbeat” abortion bill took effect on September 1, 2021,[footnote]Texas Heartbeat Act, S.B. 8, 87th Gen. Assemb., Reg. Sess. (Tex. 2021) (codified as amended at Tex. Health & Safety Code Ann. §§ 171.201–.212 (West 2022)).[/footnote] and it immediately spurred a nationwide debate in the legal community[footnote]See, e.g., Lauren Moxley Beatty, The Resurrection of State Nullification— And the Degradation of Constitutional Rights: SB 8 and the Blueprint for State Copycat Laws, 111 Geo L.J. Online 18, 20, 33 (2022), https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2022/08/Beatty-State-Nullification.pdf [https://perma.cc/7NA7-W4MH] (arguing Texas’s abortion law was an attempt to nullify a federal constitutional right and that similar attempts have traditionally failed constitutional scrutiny); Press Release, DOJ, Justice Department Sues Texas Over Senate Bill 8 (Sept. 9, 2021), https://www.justice.gov/opa/pr/justice-department-sues-texas-over-senate-bill-8 [http://perma.cc/G7XS-XFQC/] (“The Act is clearly unconstitutional under longstanding Supreme Court precedent . . . .” (internal quotation marks omitted) (quoting Attorney General Merrick Garland)).[/footnote] and the broader public.[footnote]See, e.g., Maggie Astor, Here’s What the Texas Abortion Law Says, N.Y. Times (Sept. 9, 2021), https://www.nytimes.com/article/abortion-law-texas.html (on file with the Columbia Law Review ) (detailing the major features of the Texas abortion law); Adam Serwer, A Strategy of Confusion, The Atlantic (Sept. 10, 2021), https://www.theatlantic.com/ ideas/archive/2021/09/republicans-strategy-confusion/620029/ (on file with the Columbia Law Review ) (“The Texas law’s critics have seized on its perverse social incentive—bribing Texans to inform on one another—as potentially creating a nightmare scenario, a kind of privatized surveillance state.”).[/footnote] 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[footnote]See Tex. Health & Safety Code Ann. § 171.201(1) (2023) (defining “fetal heartbeat” as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac”). Medical and reproductive health experts have said the law’s references to “heartbeats” are misleading, however, because embryos at early stages of pregnancy have not developed a heart. Bethany Irvine, Why “Heartbeat Bill” Is a Misleading Name for Texas’ Near-Total Abortion Ban, Tex. Tribune (Sept. 2, 2021), https://www.texastribune.org/2021/09/02/texas-abortion-heartbeat-bill/ [http://perma.cc/8AEC-AWWT/].[/footnote] and can appear as early as six weeks into pregnancy.[footnote]Neelam Bohra, Texas Law Banning Abortion as Early as Six Weeks Goes Into Effect as the U.S. Supreme Court Takes No Action, Tex. Tribune (Aug. 31, 2021), https://www.texastribune.org/2021/08/31/texas-abortion-law-supreme-court/ [http://perma.cc/AW3J-2KH5/] (last updated Sept. 1, 2021).[/footnote] 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.[footnote]Tex. Health & Safety Code Ann. § 171.207.[/footnote] If these private enforcers prevail at trial, they are rewarded with $10,000 in statutory damages per offense and attorney’s fees.[footnote]Id. § 171.208(b).[/footnote] While the Supreme Court’s decision to abandon the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization [footnote]142 S. Ct. 2228, 2242 (2022).[/footnote] mooted many of the federal constitutional arguments against S.B. 8’s restrictions,[footnote]See Larissa Jimenez, 60 Days After Dobbs : State Legal Developments on Abortion, Brennan Ctr. for Just. (Aug. 24, 2022), https://www.brennancenter.org/our-work/ research-reports/60-days-after-dobbs-state-legal-developments-abortion [http://perma.cc/7K68-K2NT/] (noting that the Dobbs decision returned the question of abortion access to the states, which has led to a patchwork of policies).[/footnote] the law’s enforcement mechanism and its implications have commanded continued scholarly attention.[footnote]See Jon D. Michaels & David L. Noll, Vigilante Federalism, 108 Cornell L. Rev. 1187, 1192 (2023) [hereinafter Michaels & Noll, Vigilante Federalism] (arguing S.B. 8 falls within a larger trend of state “private subordination regimes,” which seek to “suppress the rights of disfavored or marginalized individuals and groups”); Luke P. Norris, The Promise and Perils of Private Enforcement, 108 Va. L. Rev. 1483, 1485 (2022) (placing S.B. 8 at the center of the developing “legal maelstrom” over private enforcement litigation).[/footnote] 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.”[footnote]Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. 3–4 (2010).[/footnote] Traditional private enforcement regimes include the many well-established statutes that have tasked members of the public with enforcing regulatory laws,[footnote]See Stephen B. Burbank, Sean Farhang & Herbert M. Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 685 (2013) (“Private enforcement of government-initiated or sanctioned policy potentially covers a virtually limitless array of policy areas . . . .”); Norris, supra note 10, at 1493.[/footnote] including antidiscrimination law,[footnote]See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2018).[/footnote] banking regulation,[footnote]See Dodd–Frank Wall Street Reform and Consumer Protection Act, 12 U.S.C. §§ 5301–5641 (2018).[/footnote] and consumer protection.[footnote]See Federal Trade Commission Act of 1914, 15 U.S.C. §§ 41–58 (2018).[/footnote] 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.[footnote]See Norris, supra note 10, at 1498–99.[/footnote] 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,”[footnote]Michaels & Noll, Vigilante Federalism, supra note 10, at 1191.[/footnote] 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.[footnote]See Jon Michaels & David Noll, Opinion, We Are Becoming a Nation of Vigilantes, N.Y. Times (Sept. 4, 2021), https://www.nytimes.com/2021/09/04/opinion/texas-abortion-law.html (on file with the Columbia Law Review ).[/footnote] As Michaels and Noll note, these laws are frequently passed by GOP-led state legislatures.[footnote]See Michaels & Noll, Vigilante Federalism, supra note 10, at 1194.[/footnote] 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.[footnote]Stephen B. Burbank & Sean Farhang, A New (Republican) Litigation State?, 11 U.C. Irvine L. Rev. 657, 660 (2021).[/footnote] 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.[footnote]See id. at 686 (“[W]e found escalating Republican support for bills seeking to leverage private lawsuits to enforce rights that were primarily anti-abortion, immigrant, and tax, and pro-gun and religion.”).[/footnote] 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.[footnote]See Michaels & Noll, Vigilante Federalism, supra note 10, at 1192–93.[/footnote] 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,[footnote]See, e.g., Beatty, supra note 2, at 19 (arguing that S.B. 8 is the first state law to successfully nullify federal law in U.S. history); Howard M. Wasserman & Charles W. “Rocky” Rhodes, Solving the Procedural Puzzles of the Texas Fetal-Heartbeat Law and Its Imitators: The Limits and Opportunities of Offensive Litigation, 71 Am. U. L. Rev. 1029, 1033–37 (2022) (documenting the substantive and procedural challenges posed by S.B. 8 and offering strategies to challenge the law); Laurence H. Tribe & Stephen I. Vladeck, Opinion, Texas Tries to Upend the Legal System With Its Abortion Law, N.Y. Times ( July 19, 2021), https://www.nytimes.com/2021/07/19/opinion/texas-abortion-law-reward.html (on file with the Columbia Law Review ) (“[S.B. 8 is] an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.”).[/footnote] 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.”[footnote]See Burbank et al., supra note 12, at 685.[/footnote] 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.[footnote]See David Freeman Engstrom, Harnessing the Private Attorney General: Evidence From Qui Tam Litigation, 112 Colum. L. Rev. 1244, 1270 (2012) [hereinafter Engstrom, Harnessing the Private Attorney General] (providing an overview of the Federal False Claims Act (FCA) and noting that most enforcement efforts under the act are “initiated as private lawsuits brought pursuant to the FCA’s qui tam provisions”).[/footnote] 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.[footnote]Iskanian v. CLS Transp. L.A., LLC, 327 P.3d 129, 148 (Cal. 2014) (emphasis omitted).[/footnote] 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.[footnote]See, e.g., Engstrom, Harnessing the Private Attorney General, supra note 25, at 1246–47 (treating the FCA’s qui tam provision and qui tam generally as synonymous and interchangeable concepts); William B. Rubenstein, On What a “Private Attorney General” Is—And Why It Matters, 57 Vand. L. Rev. 2129, 2144–46 (2004) (describing all qui tam relators as “substitute attorneys general” and situating them within a larger spectrum of private attorneys general).[/footnote] 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.[footnote]See Norris, supra note 10, at 1488 (putting forth a democratic theory of “popular participation” in regulatory governance).[/footnote] 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.[footnote]See Adam Liptak, Justice Department Asks Supreme Court to Block Texas Abortion Law, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2021/10/18/us/politics/texas-abortion-law-supreme-court.html (on file with the Columbia Law Review ) (last updated Oct. 22, 2021) (discussing the claim that the law’s drafters “have candidly acknowledged that the law was designed to deter constitutionally protected abortions while evading judicial review” (internal quotation marks omitted) (quoting acting Solicitor General, Brian Fletcher)).[/footnote] 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.[footnote]See Michaels & Noll, Vigilante Federalism, supra note 10, at 1189–90.[/footnote] 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.[footnote]See, e.g., Janet Cooper Alexander, To Skin a Cat: Qui Tam Actions as a State Legislative Response to Concepcion , 46 U. Mich. J.L. Reform 1203, 1239 (2013) (proposing state legislatures pass statutory qui tam actions to enforce civil penalties for violations of state consumer protection and employment laws); Andrew Elmore, The State Qui Tam to Enforce Employment Law, 69 DePaul L. Rev. 357, 364–65 (2020) (similar).[/footnote] 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.