by Jeff Sovern
According to Private Enforcement in Administrative Courts, 72 Vanderbilt Law Review, (Forthcoming), by Michael Sant'Ambrogio of Michigan State, in the year ending March 31, 2017, the government filed only eight consumer protection cases in federal court, which contrasts with the 9,706 cases filed by private plaintiffs. Sometimes we see the argument that we don't need private enforcement of consumer laws because public enforcement is sufficient. If the numbers Sant'Ambrogio reports are accurate, they make that claim harder to make; indeed, they make it ludicrous. To be sure, many government cases are resolved short of filing in federal court, some government cases are resolved in internal administrative proceedings, and state agencies–especially AG's offices–also file consumer protection cases, but those categories are unlikely to come close to solving underenforcement problems.
I respectfully disagree. Private enforcement, by whomever, is deemed unnecessary because government, ostensibly, is enforcing consumer protection, not unnecessary because the electoral college’s choice for President is to be taken as a “feature of democracy” indicating that the electorate wishes to be raped and pillaged.
To play devil’s advocate, one could say that the people get the government they choose, and if they choose a government that doesn’t consider consumer protection a priority, that’s a “feature” of democracy, not a “bug” that needs to be corrected through private enforcement. Not saying I agree with this position, to be clear, but it doesn’t necessarily follow that the lack of government interest in this area makes “ludicrous” the argument that private enforcement by democratically unaccountable lawyers is unnecessary. Thoughts?