Posted by Social Science Research Network
Diagonal Public Enforcement
By Zachary D. Clopton (Cornell Law School)
Abstract: Civics class teaches the traditional mode of law enforcement: the legislature adopts a regulatory statute and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. One government provides the executive, while a different government provides the legislature and judiciary. I call this unusual form of interstate relations “diagonal public enforcement.”
Although diagonal public enforcement has escaped systematic study, one can find examples in American courts going back more than a century. Foreign governments have used American courts to enforce federal antitrust laws, state environmental laws, and civil rights statutes, among others. Just last term, the Supreme Court heard a case in which the European Commission sued American tobacco companies in a New York federal court under the federal RICO statute. Diagonal public enforcement occurs within the US system as well. States routinely enforce federal laws in federal courts, and opportunities exist for states to enforce sister-state laws, especially with respect to climate change and other cross-border issues.
Despite these examples, diagonal public enforcement appears to some as a category error: why would legislatures ever rely on foreign governments to enforce domestic law, and why would foreign executives take up the offer? In light of these questions, this Article attempts to demystify diagonal public enforcement by exploring when it would be consistent with the rational pursuit of legislative and executive interests. Legislatures are likely to authorize diagonal public enforcement in order to increase deterrence or influence global regulation. Executives are likely to “forum shop” for diagonal options in order to achieve better outcomes in foreign courts. These predictions explain existing patterns of enforcement, and they are suggestive of a larger role for diagonal public enforcement in the Trump era.
Finally, this Article critically evaluates the costs and benefits of diagonal public enforcement at the inter-state, intra-state, and individual levels. At first glance, diagonal public enforcement may seem to raise common concerns about the diffusion of regulatory authority, the extraterritorial reach of domestic law, and the interference in foreign sovereign relationships. However, upon closer scrutiny, diagonal public enforcement turns out to have the capacity to improve enforcement efficacy, promote the public interest, protect foreign and minority interests, and nudge gridlocked institutions. Though, of course, this will depend on conscientious institutional design.
Featured News
Geradin Partners Expands Paris Office with Key Hire
Aug 30, 2024 by
CPI
Judge Accuses Google of ‘Clear Abuse’ in Antitrust Case Over Deleted Employee Chats
Aug 29, 2024 by
CPI
Hong Kong Cleaning Company Employee Charged in Historic Antitrust Investigation Case
Aug 29, 2024 by
CPI
Inside the Yelp Suit: Allegations of Google’s Abuse of Search Power
Aug 29, 2024 by
CPI
AI Safety Bill Clears Hurdle in California, Heads to Governor’s Desk
Aug 29, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – State Attorneys General
Aug 22, 2024 by
CPI
CPI Talks… …With Attorney General Phil Weiser
Aug 22, 2024 by
CPI
The Bipartisan Miracle of State Antitrust Enforcement
Aug 22, 2024 by
Gwendolyn J. Lindsay Cooley
Recent Developments in State Antitrust Enforcement: Agriculture and Food Markets
Aug 22, 2024 by
Elizabeth R. Odette
State Attorneys General: Stewards of Consumer Health and Welfare
Aug 22, 2024 by
Brooke Howlett Lovrovich