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In most countries, bureaucratic agencies handle regulatory enforcement. But the United States does things differently. Embedded in statutes governing consumer protection, antitrust, employment, civil rights, and the environment are more than 10,000 "private rights of action"—legal provisions that empower ordinary citizens and their lawyers to enforce the law through lawsuits. This is how Americans regulate everything from wage theft to air pollution to corporate fraud.
How Americans Enforce the Law tells the story of this distinctively American approach to governance. Diego Zambrano reveals that private enforcement is not a modern innovation but an inherited tradition dating to medieval English "penal statutes" that colonial America adopted and intensified. The book traces how this system evolved through critical junctures and was boosted by twentieth-century procedural innovations like broad discovery rules and class actions that transformed scattered statutory clauses into a mass-litigation engine.
This is the first comprehensive account of private enforcement's origins, operations, and future. Offering both celebration and critique, Zambrano shows why private enforcement works well in employment law, for instance, but has been weaponized in environmental law. He creates a framework for determining when this uniquely American form of governance serves the public interest, and when it can be used to undermine democracy.
"In this timely, transformative, and eminently readable account of America's pervasive and longstanding reliance on private litigation to enforce public law, Diego Zambrano convincingly shows that private enforcement offers a crucial counterweight to executive power in a government of, by, and for the people."—James E. Pfander, Northwestern Pritzker School of Law
"One of the most unusual features of American government is the way we frequently enforce laws not through state action, but through litigation by private citizens—something known as 'right of private action.' As Diego Zambrano points out, this is useful in certain circumstances like employment law, but is a costly and inefficient way of regulating other sectors like infrastructure. Zambrano provides clear and well-reasoned ideas for reform of this practice."—Francis Fukuyama, Stanford University