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Scholars debating the relative merits of public and private enforcement have long trained their attention on the federal courts. For some, laws giving private litigants rights to vindicate important policies generate unaccountable "private attorneys general" who interfere with public enforcement goals. For others, private lawsuits save cash-strapped government lawyers money, time, and resources by encouraging private parties to police misconduct on their own. Yet largely overlooked in the debate is enforcement inside agency adjudication, which often is depicted as just another form of public enforcement, only in a friendlier forum. This Article challenges the prevailing conception of administrative enforcement. Based on a comprehensive examination of over eighty administrative courts, I find that agencies rarely enforce on their own. Among other things, private parties may have procedural rights to file regulatory complaints, trigger agency investigations, demand evidentiary hearings, join public enforcement actions as parties, and even pursue claims without the involvement of the agency's enforcement arm. Although some administrative enforcement is virtually indistinguishable from either public or private enforcement in federal court, more often administrative schemes employ attributes of both. Combining public and private enforcement furthers the goals of agency adjudication while mitigating some of the dangers posed by transferring cases from generalist courts to specialized policymaking bodies with less formal procedures. Public enforcement offers greater political accountability and more coherent implementation of policy. Private enforcement supplements agency expertise with the situated knowledge of regulatory beneficiaries and enhances their access to legal remedies. And diversifying enforcement inputs reduces the risk of political or interest group capture of administrative schemes. These tools are especially valuable today, as presidential administrations increasingly use control over public enforcement to roll back statutory mandates they cannot repeal through the legislative process. Enhanced procedural rights for private parties can reduce capture of statutory mandates, highlight undue influence, and facilitate judicial review of policy changes implemented through agency nonenforcement. [ABSTRACT FROM AUTHOR]

When cities are involved in litigation, it is most often as defendants. However, in the last few decades, cities have emerged as aggressive plaintiffs, bringing forward hundreds of mass-tort style claims. From suing gun manufacturers for the scourge of gun violence, to bringing actions against banks for the consequences of the subprime mortgage crisis, to initiating claims against pharmaceutical companies for opioid-related deaths and injuries, plaintiff cities are using litigation to pursue the perpetrators of the social harms that have devastated their constituents and their communities. Many courts and commentators have criticized these plaintiff city claims on numerous grounds. They argue that, as a doctrinal matter, cities lack standing, fail to meet causation standards, and stretch causes of action like public nuisance beyond all reasonable limits. Further, they argue that, as a theoretical matter, plaintiff cities are impermissibly using litigation as regulation, overstepping their limited authority as "creatures of the state," and usurping the political and legislative process. This Article demonstrates that each of these critiques is mistaken. Plaintiff city claims are legally, morally, and sociologically legitimate. And, as a practical matter, they are financially feasible even for cash-strapped or bankrupt cities. Moving beyond mere economic accounting, though, plaintiff city claims have value of a different sort: for plaintiff cities, litigation is a form of state building. By serving as plaintiffs and seeking redress for the harms that impact a city's most vulnerable residents, plaintiff cities are demanding recognition not just for those impacted constituents, but also for themselves, as distinct and meaningful polities. In so doing, plaintiff cities are renegotiating the practical and theoretical meaning of cities within the existing political order, and opening up new potential paths for urban social justice. [ABSTRACT FROM AUTHOR]

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives--both rational and irrational--to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties' incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require the parties to file and live within litigation budgets. These "costs budgets," which are already in use in the United Kingdom, help to ensure that the costs of litigation remain less than the benefits. After describing the workings of a costs-budget system, the Article considers practical, political, and constitutional critiques. None of these concerns is disabling. American rulemakers who are serious about containing the litigation costs should grant courts the power to use costs budgets. [ABSTRACT FROM AUTHOR]

Companies routinely file bankruptcy cases in venues that have no meaningful connection to the company, its operations, or its stakeholders. This practice (1) divorces bankruptcy and venue from their ties to location; (2) disrupts the fundamental balance underlying the Bankruptcy Code by shifting the focus exclusively to the needs of sophisticated parties; and (3) shuts out parties who have a right to participate in bankruptcy proceedings, which contravenes due process and raises fairness concerns. To solve these problems, this Article proposes new procedures that mandate a thorough discussion of venue considerations in bankruptcy cases. By requiring parties to justify their venue choices under tougher standards and holding companies accountable for their venue decisions, the proposal helps ensure that bankruptcy cases are heard in places where key local voices and issues are recognized and addressed. [ABSTRACT FROM AUTHOR]

The article discusses the relationship between fee shifting and the free market as of November 2013, focusing on legal fees and the economic aspects of weak or meritless lawsuits in places such as Great Britain and the U.S. According to the article, the losing party in a lawsuit in Great Britain is required to pay the legal costs of the winning party. Other topics include corporate defendants in America, heightened pleading standards, and U.S. law reform efforts.

The article discusses the standards for third-party intervenors in the U.S. as of March 2013, focusing on Rule 24(a) of the U.S. Federal Rules of Civil Procedure, as well as analyses of the differences between public-law and private-law interventions. Other topics include timeliness and adequacy-of-representation requirements, as well as joinder of parties, the American judicial process, and class action litigation. Professors Abram Chayes and Peter Appel are also mentioned.

The article examines the different factors that contribute to the refusal of derivative suits among shareholders. It notes that these lawsuits are no longer given the full attention in evaluation or even in law reviews. It also evaluates whether corporations and shareholders are functioning well, with or without the lawsuit. Moreover, it surveys opinions related to derivative suits in Delaware corporations which has been brought in federal and Delaware courts. It further concludes that the role of the lawsuit today varies with the category of cases it is involved.

The article presents information on the predominance and resolvability principles related to class actions. The predominance test explicitly refers to the significance of individual issues. The new "resolvability" test that focuses on whether a class action is an appropriate means of resolving disputed claims. It involves both common and individualized elements. The new resolvability test would combine with the existing superiority and commonality tests to require a four-step analysis of how similarity and dissimilarity among putative class members' claims should affect certification.

The article discusses the role of opt-outs and objectors in class action litigation. Class actions are a useful means for achieving economies of scale in litigation, facilitating the prosecution of claims that would be uneconomic to litigate individually, and strengthening enforcement of the laws. These advantages can be obtained only because the class action brings before the court the claims of absent parties, that is, people who may not even know that their rights are being determined in absentia. In addition to the right to opt-out of a class action, members of any class action have the option to exercise their collective voice by objecting to a proposed settlement.