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Towards Optimal Enforcement

Posted by on Tuesday, April 2, 2019 in En Banc, Responses.

Kent Barnett | 72 Vand. L. Rev. En Banc 127 |

Enforcing federal law seems simple enough. Federal agencies, which exist for exactly this purpose, enforce by identifying violations of a particular federal statutory scheme and accompanying regulations. But complications quickly arise. How should agencies enforce—by initiating judicial proceedings, by enacting rules or guidance to better define statutory proscriptions, by adjudicating matters within agencies, or by combining some or all of these powers? What role, if any, should federal courts have in adjudicating enforcement disputes or reviewing agency enforcement? Should only federal agencies be able to enforce federal law, or should state agencies or private parties also do so? And under what conditions?

In Private Enforcement in Administrative Courts, Professor Michael Sant’Ambrogio meticulously catalogues various dynamic considerations for enforcement design—such as competition among political values, the effects of political and political-economic conditions, and constraints on financial and investigatory resources—to begin answering these questions.

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