The Promise and Perils of Private Enforcement

*Associate Professor, University of Richmond School of Law. For helpful comments and conversation, I thank Brooke Coleman, Erin Collins, Rebecca Crootof, Kevin Costello, Doron Dorfman, Jessica Erickson, Charlotte Garden, Jim Gibson, Helen Hershkoff, Andrew Hammond, Corinna Lain, Jon Michaels, David Noll, David Pozen, Judith Resnik, Allison Tait, Adam Zimmerman, and audiences at the Fifth Annual Civil Procedure Workshop, Seattle University School of Law, Temple University Beasley School of Law, University of Richmond School of Law, and William & Mary Law School. I thank Dylan Phillips for excellent research assistance, and David Kinnaird, Riley Segars, and the editors of the Virginia Law Review for excellent editorial assistance.Show More

A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent with their gender identities, and against schools that permit transgender students to play on sports teams consistent with their gender identities. Similar laws permit people to bring enforcement actions against schools that teach critical race theory and against those who sell restricted firearms. State legislatures are considering a host of laws modeled on these examples, along with other novel regimes. These are new adaptations of private enforcement regimes—laws that task members of the public with enforcing regulatory statutes in court. Private enforcement has a somewhat long lineage in U.S. law, dating back to at least the nineteenth century. Since then, in contexts as diverse as employment discrimination, housing discrimination, antitrust, securities, and other contexts, the U.S. legal system has endowed members of the public with the power to enforce regulatory law in court. While these traditional forms of private enforcement have been relatively stable and survived legal challenges, the new adaptations cropping up have prompted challenges in court and intense debate. Among other things, scholars argue that they amount to a form of legal vigilantism, suppress existing legal rights, and pose due process concerns in their design. Yet, to fully distinguish between private enforcement’s traditional forms and these new variations, we need a richer account of the meaning and role of private enforcement in democracy.

This Article provides such an account, analyzing and distinguishing private enforcement regimes through the lens of a participatory democracy theory of regulatory governance. Drawing on debates and thinking at the dawn of the modern regulatory state, this Article argues that private enforcement is democratically valuable when it (1) evens out structural power disparities that can undermine democracy, (2) enables members of the public to bring the expertise of experience to dynamic regulatory environments, and (3) facilitates democratic deliberation. This Article argues that traditional private enforcement suits generally contribute to democratic governance under each rationale. In contrast, the new private enforcement suits perform less well, and indeed, often undermine the rationales for popular participation in regulatory governance. This Article thus articulates a richer theory of popular participation in regulatory governance that shows the promise of private enforcement generally and the perils of recent adaptations.

Introduction

A legal maelstrom is developing over private enforcement litigation. Citizens have long been endowed with the authority to enforce regulatory laws by filing civil suits in court in contexts as diverse as employment discrimination, housing discrimination, antitrust, civil rights, labor and employment, healthcare, and others.¹ 1.See infra Section I.A. I occasionally use the term “citizen” to refer to private enforcers, in part because private enforcement suits are at times styled as “citizen suits,” particularly in the environmental context. See, e.g., Katherine A. Rouse, Note, Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions, 93 N.Y.U. L. Rev. 1271, 1275–84 (2018) (exploring citizen suit regimes). However, I am referring to citizenship as a practice of participation in political-legal enforcement, and I do not mean to draw the formal distinction delineating citizens and non-citizens under various U.S. legal regimes, particularly because some private enforcers need not be U.S. citizens under the law and, indeed, some private enforcement regimes protect non-citizens. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, § 703, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e–2000e-2) (banning employment discrimination on account of national origin).Show More While private enforcement has a long and complicated lineage, paradigmatic private enforcement suits involve members of the public enforcing regulatory statutes governing the marketplace and codifying civil rights commitments.² 2.See infra Section I.A; see also David L. Noll & Luke Norris, Federal Rules of Private Enforcement, 108 Cornell L. Rev. (forthcoming 2023) (manuscript at 2–3) (on file with the author) (noting private enforcement is a product of legislatures “creating private rights of action, modifying court procedures, and subsidizing litigation through attorney’s fee-shifts, damages enhancements, and other measures that make it attractive for private parties and the attorneys who represent them to shoulder the work of enforcing the law”).Show More But across the legal landscape, private enforcement suits are being adapted creatively today—provoking serious legal challenges and prompting heated debate.

Texas’s S.B. 8 is at the center of the maelstrom. The law, which permits people to bring actions against anyone who aids or abets the performance or inducement of an abortion after approximately six weeks of pregnancy, relies exclusively on private enforcement.³ 3.S.B. 8, § 3, 87th Leg., Reg. Sess. (Tex. 2021) (codified at Tex. Health & Safety Code Ann. § 171.208 (West 2022)) (permitting “any person” to bring an action against anyone who “aids or abets the performance or inducement of an abortion”).Show More S.B. 8 is part of a new wave of private causes of action, including those that task members of the public with enforcing laws banning transgender people from using bathrooms or playing on sports teams that correspond with their gender identities.⁴ 4.See, e.g., H.B. 1233, § 1(5)(a), 112th Gen. Assemb., Reg. Sess. (Tenn. 2021) (codified at Tenn. Code Ann. § 49-2-805 (2021)) (permitting any student, teacher, or employer to sue if they have to share a restroom with a transgender person); S.B. 1028, 2021 Leg., Reg. Sess. § 12 (Fla. 2021) (codified at Fla. Stat. § 1006.205 (2021)) (permitting students to sue if they are “deprived of an academic opportunity” by being required to play sports with a transgender person).Show More New laws passed and others proposed in several states give people the ability to sue school districts that teach critical race theory (“CRT”) or employers that train based on it, and one law gives people the authority to sue purveyors of restricted firearms.⁵ 5.See, e.g., S.B. 1327, 2022 Leg., Reg. Sess. (Cal. 2022) (codified at Cal. Bus. & Prof. Code § 22949.60 (Deering 2022) and Cal. Civ. Proc. Code § 1021.11 (Deering 2022)) (authorizing private enforcement suits against anyone who manufactures, distributes, or sells restricted firearms); Teaganne Finn, DeSantis Pushes Bill Targeting Critical Race Theory in Schools, NBC News (Dec. 15, 2021), https://www.nbcnews.com/politics/polit‌ics-news/desantis-pushes-bill-targeting-critical-race-theory-schools-n1286049 [https://perma‌.cc/2XDZ-UHP3] (“Republican Florida Gov. Ron DeSantis is pushing a new bill that would allow parents to sue school districts if their children are taught critical race theory in classrooms, which mirrors how Texas’ abortion ban is enforced.”); Laura Meckler, Teachers Union Sues New Hampshire Over Law Barring Certain Race Lessons, Wash. Post (Dec. 13, 2021), https://www.washingtonpost.com/education/2021/12/13/new-hampshire-critical-race-theory-lawsuit/ [https://perma.cc/N884-TTHK] (describing law passed in New Hampshire regarding the teaching of topics around race and its private right of action). For an overview of all CRT bills proposed and passed, see Peter Green, Teacher Anti-CRT Bills Coast to Coast: A State by State Guide, Forbes (Feb. 16, 2022), https://www.forbes.com/sites/pete‌rgreene/2022/02/16/teacher-anti-crt-bills-coast-to-coast-a-state-by-state-guide/?sh=306100ec‌4ff6 [https://perma.cc/E5CZ-Y6BJ].Show More

Questions about the legality of these private enforcement schemes are already percolating through the courts. The U.S. Supreme Court recently weighed in on one aspect of S.B. 8.⁶ 6.See Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 529–30 (2021) (deciding whether pre-enforcement review of the statute’s constitutionality is permissible).Show More The bill lacks public enforcement mechanisms, in large part to stop pre-enforcement suits against government officials,⁷ 7.See infra notes 50, 67–69 and accompanying text.Show More but a divided Supreme Court allowed pre-enforcement suits to be brought against state medical licensing officials who are tasked with enforcing the law.⁸ 8.See Whole Woman’s Health, 142 S. Ct. at 535–37.Show More The law is also a troubling precedent—in large part because its six-week ban on abortions ran afoul of controlling Supreme Court precedent when it was passed—although that precedent has since been overturned.⁹ 9.See infra note 70 and accompanying text; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022).Show More

The controversy over these laws, however, extends further. Commentators argue that many of these recent adaptations, by having members of the public enforce laws against one another upon merely witnessing their conduct, amount to a form of legal vigilantism, suppress existing legal rights, entrench marginalization, and pose due process concerns in their design.¹⁰ 10.See Jon D. Michaels & David L. Noll, Vigilante Federalism, Cornell L. Rev. (forthcoming 2023) (manuscript at 3–4, 18–22), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=​3915944 [https://perma.cc/J8ZY-V26M] [hereinafter Michaels & Noll, Vigilante Federalism] (advancing all of these arguments); see also Aziz Z. Huq, The Private Suppression of Constitutional Rights, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 51–54), https://ssrn.com/abstract=4072800 [https://perma.cc/CD2F-HQW8] (connecting S.B. 8 to the Fugitive Slave Act and a larger history of private suppression of constitutional rights that includes labor suppression and racially restrictive covenants); Jon Michaels & David Noll, We Are Becoming a Nation of Vigilantes, N.Y. Times (Sept. 4, 2021), https://www.nytimes.c​om/2021/09/04/opinion/texas-abortion-law.html [https://perma.cc/6UPG-PLB9] (“In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers around the country have . . . inverted private enforcement laws . . . to enable individuals to suppress the rights of their neighbors, classmates and colleagues.”); Laurence H. Tribe & Stephen I. Vladeck, 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/ [https://perma.cc/G9EF-CZN4] (arguing that S.B. 8 is designed to evade federal review). A federal district court judge overseeing litigation surrounding S.B. 8 found that it violates constitutional due process. See Whole Woman’s Health, 141 S. Ct. at 2494.Show More They also argue that these laws are different in kind from most traditional private enforcement suits, which are characterized by enforcers who suffer direct harm—say, consumer fraud or unlawful termination—enforcing regulatory laws governing those harms.¹¹ 11.See Michaels & Noll, Vigilante Federalism, supra note 10, at 28–31.Show More

All of these criticisms have merit. But the debate over which kinds of private enforcement are justified and valuable suffers from a deeper problem: our theory of the role of private enforcement in democracy is underdeveloped.

This Article claims that to better analyze private enforcement’s various forms, we need to first understand the proper role of citizen enforcement in democracy. Fundamentally, the debate over private enforcement is one over whether and when members of the public should participate in enforcing regulatory laws. For some thinkers, tasking members of the public, their lawyers, and courts with regulatory enforcement authority is problematic.¹² 12.See infra Section II.A.Show More They argue that public enforcers and bureaucrats are more accountable regulatory agents.¹³ 13.See infra Section II.A.Show More Some even argue that private enforcement suits pose constitutional concerns or fit uncomfortably under Article II of the Constitution, which vests law-enforcement power in the executive branch.¹⁴ 14.See, e.g., Cass R. Sunstein, Article II Revisionism, 92 Mich. L. Rev. 131, 131 (1993) (overviewing and critiquing the argument that “certain grants of standing—to citizens, taxpayers, or others without an individuated injury—would compromise the vesting of executive power in the President and the grant of power to the President, rather than to courts or to citizens, to ‘take Care that the Laws be faithfully executed’”).Show More For others, private enforcement is justified largely for its structural, gap-filling role in regulatory enforcement: private enforcers and their lawyers bring cases that public enforcers might not have the information, resources, or political will to bring.¹⁵ 15.See infra Section II.A.Show More On this view, private enforcement is valuable in a complementary sense. But the democratic theory that maintains that public enforcers are best vested with authority to implement the law survives largely unscathed.

Lost from view in this dialogue is a deeper theoretical account of popular participation in regulatory governance that both can generally justify private enforcement as a democratic practice and enable us to better sort through its variations. Scholars have noted in passing that private enforcement facilitates popular participation in self-government, but have not developed the rationales explaining why this is so.¹⁶ 16.See Stephen B. Burbank, Sean Farhang & Herbert Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 666 (2013) (arguing that “private enforcement regimes contribute to participatory and democratic self-government”).Show More But there are rich resources in U.S. legal and intellectual history for developing a better account of popular participation in regulatory governance that can reveal both the promise and the limits of private enforcement.

At the turn of the twentieth century, as questions roiled over whether members of the public should participate in regulatory governance or whether the domain should be left to public officials and experts alone, thinkers developed a participatory democracy account of regulatory governance. At the time, they elaborated three core justifications for why and when we might center members of the public in regulatory enforcement. They asserted that popular participation in regulatory enforcement is democratically valuable because it can (1) even out structural power imbalances that threaten to undermine democracy, (2) enable members of the public to bring the expertise of their direct, affected experience to dynamic regulatory contexts, and (3) help to facilitate democratic deliberation over regulatory norms. These justifications remain relevant today and aid in navigating the evolving terrain of private enforcement regimes.

Traditional private enforcement suits exhibit democratic promise under each justification. First, they often involve dispersed members of the public—at times those who have faced historical and enduring forms of marginalization—bringing suits against often powerful firms or government actors. In this way, citizens as workers, consumers, patients, and in other roles can exercise countervailing power by bringing suits in court. Second, in these suits, private enforcers tend to bring their direct experiences and personally felt harms to courts, leveraging the expertise of experience. And, they do so in contexts where the changing behavior of regulatory subjects raises complicated interpretive questions. In these contexts, members of the public directly experience evolving forms of economic and social behavior and are well-positioned to measure them against regulatory norms and to engage with state institutions to commence processes of regulatory interpretation. And finally, by doing so, private enforcers’ suits can deepen the well of deliberation between members of the public, courts, agencies, and legislators over the meaning and application of regulatory norms.

In contrast, recent adaptations of private enforcement tend to exhibit less democratic promise. First, they often either do not respond to or threaten to exacerbate existing power imbalances. The suits tend to involve citizens enforcing against fellow citizens, hardly David-versus-Goliath-type contests. And the suits at times exacerbate power disparities. The people who are affected the most by enforcement are often those who have faced historical and enduring forms of marginalization, including Black, pregnant, and transgender people. Second, the suits involve enforcers bringing less direct, affected experience to less dynamic regulatory environments. Private enforcers in these regimes tend not to have the kinds of experiences and personally felt harms that enrich regulatory deliberation. They are more voyeurs than victims. And the kinds of suits they bring involve fewer questions of regulatory interpretation and application. In contrast to thorny questions over, say, whether complicated workplace dynamics trigger employment laws or whether certain parallel business conduct triggers antitrust laws, the laws involve simpler questions, like whether a transgender person was in a bathroom that corresponded with their gender identity rather than their sex assigned at birth. Indeed, the largest interpretive questions about these laws may be about whether or not they are constitutional in the first place—whether they violate the rights of transgender students, Black students, and pregnant people—rather than issues of complex, ongoing implementation. Finally, these suits have the potential to undermine democratic deliberation in a variety of ways—including by posing citizen against citizen and fraying the social fabric and by further subordinating people who have faced historical and enduring forms of oppression.

This Article thus mines the deeper democratic foundations of private enforcement litigation to make sense of, and sort among, its variations. Its core claim is that to navigate the brave new world of private enforcement, it is useful to theorize more richly about what democratic regulatory governance entails and who should be its agents. And its core contribution is to develop a participatory democracy account within the context of private enforcement that enables us to analyze its variations. In doing so, it builds on both democratic theories of adjudication and regulatory enforcement in other contexts, particularly in agencies.¹⁷ 17.See generally, e.g., Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 84–95 (2019) (drawing on Progressive Era thought to develop a democratic vision of administrative law and governance); Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government (2018) (articulating a vision of administrative governance as reasoned administration and showing how administrative law contributes to democratic legitimacy); K. Sabeel Rahman, Democracy Against Domination (2016) (drawing on Progressive Era democratic theory to develop a progressive vision of regulatory governance).Show More One caveat is that while this Article provides a general theoretical account of the promises of traditional private enforcement suits, at the more granular level—in particular, regulatory regimes and enforcement settings—legislators, courts, and civil rule-makers have to make context-dependent decisions about facilitating, calibrating, and at times limiting private enforcement.¹⁸ 18.See infra note 167 and accompanying text.Show More Such decisions involve a complex constellation of considerations that will vary across contexts. Similarly, particular ways of organizing litigation—including those that stymy public participation—may also undermine private enforcement, and particular private enforcement actions may be less valuable because of redundancy or over-enforcement concerns and calibration issues. This Article, however, at the least can inform analyses about designing private enforcement regimes by augmenting and clarifying the set of general reasons for Congress to rely on private enforcement in traditional contexts and for courts and civil rule-makers to facilitate it.

While this Article supplies a framework for justifying traditional private enforcement suits and critiquing recent adaptations, it also suggests that dynamics in U.S. law and politics may portend a future where traditional suits wither and recent adaptations grow and flourish.¹⁹ 19.See infra Part IV.Show More Traditional suits are threatened by arbitration’s increasing privatization of private regulatory law enforcement and Supreme Court procedural decisions making it more difficult for private enforcers to bring and maintain their suits.²⁰ 20.See infra Section IV.A.Show More At the same time, bills mimicking the recent adaptations are proliferating across state legislatures, increasing the prospects of a future where private enforcement turns away from traditional concerns with marketplace regulation and civil rights and towards issues of cultural grievance and contest.²¹ 21.See infra Section IV.B.Show More This Article suggests that such a paradigm shift might be understood as being emblematic of a political strategy of plutocratic populism—defined by an effort to undermine worker- and consumer-protective regulatory law and enact deregulatory policies favoring the ultra-wealthy and powerful corporations while using cultural grievance to obscure those policies and win working-class support.²² 22.See infra notes 225–27 and accompanying text.Show More

This Article proceeds in four Parts. Part I explores the characteristics of both traditional forms and recent adaptations of private enforcement. It also describes some of the emerging critiques of the recent private enforcement regimes. To make inroads in the debate over private enforcement’s variations, Part II takes a step back to consider the various democratic rationales for and against private enforcement. The Part then builds on this body of thought by developing a participatory democracy account of regulatory enforcement, laying out the rationales for it, and sketching out how it might apply to enforcement processes. Part III digs in further, applying the participatory democracy theory to both the traditional forms and newer adaptations of private enforcement. It argues that traditional private enforcement schemes are generally supported by the rationales elaborated in Part II, while the newer adaptations are generally not.

Part IV steps back further and explores how dynamics in our law and politics may mean that traditional private enforcement suits wither while recent adaptations bloom. And it suggests that legal challenges to these new laws and the enactment of copycat laws in Democrat-controlled states are unlikely to stem the tide and indeed will fit into the cultural grievance playbook. The only effective response to the paradigm shift away from traditional private enforcement, then, may perhaps be the most difficult to achieve: building an inclusive working-class populism that re-centers questions of democracy, equality, and economic distribution and calls for vibrant and robust democratic-regulatory governance.

1. See infra Section I.A. I occasionally use the term “citizen” to refer to private enforcers, in part because private enforcement suits are at times styled as “citizen suits,” particularly in the environmental context. See, e.g., Katherine A. Rouse, Note, Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions, 93 N.Y.U. L. Rev. 1271, 1275–84 (2018) (exploring citizen suit regimes). However, I am referring to citizenship as a practice of participation in political-legal enforcement, and I do not mean to draw the formal distinction delineating citizens and non-citizens under various U.S. legal regimes, particularly because some private enforcers need not be U.S. citizens under the law and, indeed, some private enforcement regimes protect non-citizens. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, § 703, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e–2000e-2) (banning employment discrimination on account of national origin). ↑
2. See infra Section I.A; see also David L. Noll & Luke Norris, Federal Rules of Private Enforcement, 108 Cornell L. Rev. (forthcoming 2023) (manuscript at 2–3) (on file with the author) (noting private enforcement is a product of legislatures “creating private rights of action, modifying court procedures, and subsidizing litigation through attorney’s fee-shifts, damages enhancements, and other measures that make it attractive for private parties and the attorneys who represent them to shoulder the work of enforcing the law”). ↑
3. S.B. 8, § 3, 87th Leg., Reg. Sess. (Tex. 2021) (codified at Tex. Health & Safety Code Ann. § 171.208 (West 2022)) (permitting “any person” to bring an action against anyone who “aids or abets the performance or inducement of an abortion”). ↑
4. See, e.g., H.B. 1233, § 1(5)(a), 112th Gen. Assemb., Reg. Sess. (Tenn. 2021) (codified at Tenn. Code Ann. § 49-2-805 (2021)) (permitting any student, teacher, or employer to sue if they have to share a restroom with a transgender person); S.B. 1028, 2021 Leg., Reg. Sess. § 12 (Fla. 2021) (codified at Fla. Stat. § 1006.205 (2021)) (permitting students to sue if they are “deprived of an academic opportunity” by being required to play sports with a transgender person). ↑
5. See, e.g., S.B. 1327, 2022 Leg., Reg. Sess. (Cal. 2022) (codified at Cal. Bus. & Prof. Code § 22949.60 (Deering 2022) and Cal. Civ. Proc. Code § 1021.11 (Deering 2022)) (authorizing private enforcement suits against anyone who manufactures, distributes, or sells restricted firearms); Teaganne Finn, DeSantis Pushes Bill Targeting Critical Race Theory in Schools, NBC News (Dec. 15, 2021), https://www.nbcnews.com/politics/polit‌ics-news/desantis-pushes-bill-targeting-critical-race-theory-schools-n1286049 [https://perma‌.cc/2XDZ-UHP3] (“Republican Florida Gov. Ron DeSantis is pushing a new bill that would allow parents to sue school districts if their children are taught critical race theory in classrooms, which mirrors how Texas’ abortion ban is enforced.”); Laura Meckler, Teachers Union Sues New Hampshire Over Law Barring Certain Race Lessons, Wash. Post (Dec. 13, 2021), https://www.washingtonpost.com/education/2021/12/13/new-hampshire-critical-race-theory-lawsuit/ [https://perma.cc/N884-TTHK] (describing law passed in New Hampshire regarding the teaching of topics around race and its private right of action). For an overview of all CRT bills proposed and passed, see Peter Green, Teacher Anti-CRT Bills Coast to Coast: A State by State Guide, Forbes (Feb. 16, 2022), https://www.forbes.com/sites/pete‌rgreene/2022/02/16/teacher-anti-crt-bills-coast-to-coast-a-state-by-state-guide/?sh=306100ec‌4ff6 [https://perma.cc/E5CZ-Y6BJ]. ↑
6. See Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 529–30 (2021) (deciding whether pre-enforcement review of the statute’s constitutionality is permissible). ↑
7. See infra notes 50, 67–69 and accompanying text. ↑
8. See Whole Woman’s Health, 142 S. Ct. at 535–37. ↑
9.  See infra note 70 and accompanying text; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022). ↑
10. See Jon D. Michaels & David L. Noll, Vigilante Federalism, Cornell L. Rev. (forthcoming 2023) (manuscript at 3–4, 18–22), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=​3915944 [https://perma.cc/J8ZY-V26M] [hereinafter Michaels & Noll, Vigilante Federalism] (advancing all of these arguments); see also Aziz Z. Huq, The Private Suppression of Constitutional Rights, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 51–54), https://ssrn.com/abstract=4072800 [https://perma.cc/CD2F-HQW8] (connecting S.B. 8 to the Fugitive Slave Act and a larger history of private suppression of constitutional rights that includes labor suppression and racially restrictive covenants); Jon Michaels & David Noll, We Are Becoming a Nation of Vigilantes, N.Y. Times (Sept. 4, 2021), https://www.nytimes.c​om/2021/09/04/opinion/texas-abortion-law.html [https://perma.cc/6UPG-PLB9] (“In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers around the country have . . . inverted private enforcement laws . . . to enable individuals to suppress the rights of their neighbors, classmates and colleagues.”); Laurence H. Tribe & Stephen I. Vladeck, 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/ [https://perma.cc/G9EF-CZN4] (arguing that S.B. 8 is designed to evade federal review). A federal district court judge overseeing litigation surrounding S.B. 8 found that it violates constitutional due process. See Whole Woman’s Health, 141 S. Ct. at 2494. ↑
11. See Michaels & Noll, Vigilante Federalism, supra note 10, at 28–31. ↑
12. See infra Section II.A. ↑
13. See infra Section II.A. ↑
14.  See, e.g., Cass R. Sunstein, Article II Revisionism, 92 Mich. L. Rev. 131, 131 (1993) (overviewing and critiquing the argument that “certain grants of standing—to citizens, taxpayers, or others without an individuated injury—would compromise the vesting of executive power in the President and the grant of power to the President, rather than to courts or to citizens, to ‘take Care that the Laws be faithfully executed’”). ↑
15. See infra Section II.A. ↑
16. See Stephen B. Burbank, Sean Farhang & Herbert Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 666 (2013) (arguing that “private enforcement regimes contribute to participatory and democratic self-government”). ↑
17.  See generally, e.g., Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 84–95 (2019) (drawing on Progressive Era thought to develop a democratic vision of administrative law and governance); Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government (2018) (articulating a vision of administrative governance as reasoned administration and showing how administrative law contributes to democratic legitimacy); K. Sabeel Rahman, Democracy Against Domination (2016) (drawing on Progressive Era democratic theory to develop a progressive vision of regulatory governance). ↑
18. See infra note 167 and accompanying text. ↑
19. See infra Part IV. ↑
20. See infra Section IV.A. ↑
21. See infra Section IV.B. ↑

22. See infra notes 225–27 and accompanying text. ↑