This paper offers what we hope is a constructive contribution to the debate about whether legal scholarship is (in)sufficiently tethered to the real world. To the extent there is a disconnect, we believe neither scholars nor the real world of governance are necessarily at fault. Instead, the disconnect stems from a failure to forge connections between theoretical constructs in the academic literature and their applicability to real world conditions. In part, this article is an effort to make such connections through close attention to context in regulatory design.
In an insightful recent article, Agencies as Litigation Gatekeepers, Professor David Freeman Engstrom offers a conceptual framework for reorienting the literature on regulatory enforcement by shifting the focus from a choice between public and private enforcement to analysis of how best to coordinate multiple, overlapping, and interdependent public and private enforcers by vesting in federal agencies “gatekeeping authority” over private enforcement lawsuits. Professor Engstrom discusses theoretical concerns about allowing private actors to bring enforcement cases, and the challenges present in designing welfare-maximizing gatekeeping regimes. Professor Engstrom suggests design options for rationalizing public and private enforcement lawsuits through a public “gatekeeping” scheme that range from empowering agencies to be “extremely interventionist” gatekeepers to restricting them to a much more limited role in shaping private enforcement efforts.
Our article evaluates and builds on Professor Engstrom’s important effort to rationalize government and private enforcement of regulatory norms by considering his effort in the context of challenges facing government enforcers in the real world, and the Environmental Protection Agency (EPA) in particular. We suggest that agencies such as EPA confront at least five design challenges in developing pragmatic enforcement strategies: the inter-related character of different components of the regulatory process; the hybrid character of contemporary governance efforts; the importance of confronting “reality” in the form of past performance and future challenges and opportunities; the dynamic character of contemporary governance and responses to it; and the salience of possible design changes, which suggests the need to prioritize design improvements. Our view is that pursuing sensible regulatory design, including mechanisms of the sort Professor Engstrom proposes, requires a sophisticated understanding of the regulatory landscape and that our conceptual framework provides a useful typology for developing such an understanding. In short, our article attempts a synthesis of Professor Engstrom’s valuable insights about the value of optimizing regulatory enforcement initiatives with our own conception of the manner in which the regulatory state operates in order to provide a contextually-based, pragmatic framework for optimizing regulatory design to promote compliance with regulatory norms.
GW Paper Series
GWU Legal Studies Research Paper No. 2013-136; GWU Law School Public Law Research Paper No. 2013-136
Glicksman, Robert L. and Markell, David L., "Regulatory Design in Context" (2013). GW Law Faculty Publications & Other Works. 1039.