At Slate- Why Progressives Attacking "Bounties" in Texas Abortion Law are Falling into a Political Trap
We need private enforcement to stop corporate crime - and conservatives will take any excuse to shut the courtroom door
I’ve written a lot about white collar law enforcement, especially in areas like wage enforcement, and private lawsuits have often been critical to that. Which is a key reason I wrote this piece at Slate, which they just posted.
I wrote that Governor Gavin Newsom harnessing a similar approach to go after gun distributors is a far better approach to give the Right a taste of a progressive response. As I noted, “bounties” - private lawsuits targeting wrongdoers - is a long-time tool for progressives:
But we shouldn’t conflate the odiousness of the Texas law with its mechanism of enforcement. The Texas abortion law is a misogynist attack on women’s rights—the misogyny is the problem. Indeed, there are many circumstances in which private enforcement is needed because police and regulators routinely fail. Newsom’s bill is hardly the first law to use private lawsuits to enforce policy: Progressives promote “bounties” in many other areas of the law. And in several other areas, such as anti-discrimination law, wage theft, and corporate corruption laws, which are underenforced by prosecutors, progressive lawmakers should use this enforcement mechanism more often.
I go into various details of its use but the bottom-line is it’s conservatives who have been trying for decades to shut the courtroom doors to private enforcement since corporations don’t like facing off against enraged employees or consumers in court. I noted a long line of cases restricting those cases as the Supreme Court:
The danger with liberals decrying private “bounties” is that it feeds a decades-long core goal of the conservative legal movement to discredit and restrict private lawsuits. In a recent case TransUnion v. Ramirez, the Court declared that Congress could not give plaintiffs the statutory right to sue over false information in their credit reports if the court itself determines they have not suffered concrete harm. As conservative Justice Brett Kavanaugh wrote for the majority in condemning private enforcement of the law:
The choice of how to prioritize and how aggressively to pursue legal actions against defendants who violate the law falls within the discretion of the Executive Branch, not within the purview of private plaintiffs.
So if the executive branch won’t pursue a case, corporate criminals get to go scottfree. And even if a President (or state prosecutors) want to pursue them, corporate lobbyists work to defund white-collar law enforcement:
Notably, after the GOP took control of Congress in 2010, Republicans cut the IRS staff by a third. The U.S. Department of Labor has fewer investigators than it did in 1948, when the workforce was one-seventh the size it is today. And state agencies have far fewer staff, with many states having no investigators for most areas of corporate crime.
I talk a bit about the various kinds of private actions to enforce the law, from compensation funds by the SEC and IRS to whistleblowers to individual lawsuits to enforce anti-discrimination and wage laws to what are known as qui tam laws where plaintiffs on behalf of the government to enforce laws, the most well-known being the False Claims Act which largely goes after contractors defrauding federal and state governments.
In passing, I mention the California Private Attorneys General Act (PAGA), which allows employees to sue their employers for violations of various state labor regulations. With so many private lawsuits being shut down or forced into private arbitration — 70% of California workplaces have mandatory arbitration - PAGA is increasingly the only way to hold companies accountable under state labor law.
And now, the Supreme Court has taken an appeal to a case, Viking River Cruises, Inc. v. Moriana and will be hearing oral arguments to gut PAGA by allowing employers to force those lawsuits into employer-controlled arbitration as well.
I will be writing an upcoming article going more in-depth on that case, so stay tuned.