George Mason University Antonin Scalia Law School

State and Federal “Private Right of Action” Legislation: Are These Mechanisms Wise or Worrisome?

Event Details

  • Date:
  • Division: Civil Justice Academy

Existing state and federal statutes and proposed bills with “private rights of action,” or PRAs, seek to deputize ordinary citizens to file civil lawsuits to enforce laws and vindicate the public policies in legislation that authorizes the PRAs. These lawsuits can be brought by what are sometimes called “private attorneys general” or “bounty hunters” regardless of whether the citizen suing themselves suffered any particularized harm from the claimed violation of law.

One of the most visible recent examples is the state law SB8 in Texas which authorized any person to bring a civil action against any person who knowingly performs, aids, or abets an abortion. SB8 is seen as a model PRA mechanism that state and federal legislators are considering following across myriad subjects to encourage neighbors to monitor and sue neighbors.

Other recent examples include enacted and pending state and federal privacy statutes that incorporate PRAs, state and federal “false claims” legislation, California’s SB1327 which creates PRAs to help regulate firearms laws, and many more. The mechanism is being considered with increasing frequency by state and federal legislators as a way to mobilize a civil enforcement force in the face of limited public enforcement resources or to circumvent legal hurdles to direct enforcement regimes.

This expert panel surveyed the state and federal legislative landscape to examine laws and bills incorporating PRAs and evaluated these private enforcement schemes across numerous metrics, including PRAs’ constitutionality within a system of separation of powers, accountability for litigation choices, fairness in enforcement and the protection of target rights, predictability, and overall fit within a democratic form of government.

Richard A. Epstein, Laurence A. Tisch Professor of Law, Director, Classical Liberal Institute,
NYU School of Law

Karen R. Harned, Executive Director, Center for Constitutional Responsibility, Inc.

Matthew A. Shapiro, Associate Professor of Law, Rutgers Law School

Donald J. Kochan, Professor of Law, Executive Director, Law & Economics Center,
George Mason University Antonin Scalia Law School