Regulation through litigation refers to changes in society (particularly those that affect industries) brought about by

litigation - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

, rather than legislation or

self-regulation Self-regulation may refer to: *Emotional self-regulation *Self-control, in sociology/psychology *Self-regulated learning, in educational psychology *Self-regulation theory (SRT), a system of conscious personal management *Industry self-regulation, ...

. Some laws have "

private attorney general A private attorney general is an informal term originating in common law jurisdictions for a private attorney who brings a lawsuit claiming it to be in the public interest, i.e., benefiting the general public and not just the plaintiff, on beh ...

" provisions that permit individuals to file suit in court to vindicate important rights. Many laws for addressing

consumer protection Consumer protection is the practice of safeguarding buyers of goods and services, and the public, against unfair practices in the marketplace. Consumer protection measures are often established by law. Such laws are intended to prevent business ...

, civil rights and

employment discrimination Employment discrimination is a form of illegal discrimination in the workplace based on legally protected characteristics. In the U.S., federal anti-discrimination law prohibits discrimination by employers against employees based on age, race, g ...

provide incentives for the private enforcement of laws by allowing the prevailing party to recover a reasonable attorney's fee. Regulation through litigation may at times overlap with judicial activism.

Criticism

Critics include members of industry and public-service professions; some argue that as potential defendants, their opposition is based more in self-interest than in policy concerns. Of particular concern is the use of the attorney general office to make policy, especially when that policy contradicts the policy of the chief executive. For example, many criticized Mississippi Attorney General

Jim Hood James Matthew Hood (born May 15, 1962) is an American lawyer and politician who served as the 39th Attorney General of Mississippi from 2004 to 2020. A member of the Democratic Party, he was first elected in 2003, defeating Republican Scott New ...

for his litigation against insurance companies after

Hurricane Katrina Hurricane Katrina was a destructive Category 5 Atlantic hurricane that caused over 1,800 fatalities and $125 billion in damage in late August 2005, especially in the city of New Orleans and the surrounding areas. It was at the time the cost ...

on the grounds that it undid the efforts of Governor Haley Barbour to improve the business environment in the stat

In another example, eight state attorneys general unsuccessfully sued utility companies in an attempt to force implementation of global warming standards that the federal government had refused to adop

Some critics cite the constitutional doctrine of separation of powers, arguing that rules that govern society as a whole should be rooted solely in laws enacted by legislative bodies. By corollary, the judicial and

executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state. In poli ...

es should properly be limited in their powers with regard to the law: the judicial in interpreting the laws, and the executive in enforcing the laws. There are sometimes legislative efforts to prevent regulation through litigation. Rick Boucher (D-VA) argued in support of a 2005 federal tort reform that gave immunity to gun manufacturers in lawsuits that were "nothing more than thinly veiled attempts to circumvent the legislative process and achieve gun control through litigation"; reform supporters complained (with the Pentagon's support) that the plaintiffs were trying to "sue un manufacturersout of existence" through forcing them to incur $250 million in legal defense expenses, while

gun control Gun control, or firearms regulation, is the set of laws or policies that regulate the manufacture, sale, transfer, possession, modification, or use of firearms by civilians. Most countries have a restrictive firearm guiding policy, with on ...

supporters argued that the legislation took away "the right of victims to be able to have their day in court", that the bill gave unprecedented immunity to a single industry, and that the law was unconstitutiona

External links

* Walter Olson, ''Point of Law''
"Regulation through Litigation"
* Robert Reich, '' USA Today'', 11 February 1999
"Regulation is out, litigation is in"
*

American Tort Reform Association The American Tort Reform Association (ATRA) is a nonprofit, nonpartisan organization dedicated to reforming the civil justice system and advocating for tort reform. It was founded in 1986 by the American Council of Engineering Companies and was jo ...

br>response to Reich
* John Fund and Martin Morse Wooster
''The Dangers of Regulation through Litigation: The Alliance of Plaintiff's Lawyers and State Governments''
Sociology of law Economics of regulation

Criticism

See also

Further reading

External links