Diagonal Public Enforcement

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 U.S. 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 coming years. 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.