Sue the Regulators


Suggests Richard Rahn in the Washington Times:

In recent years, Congress has established the right of "private course of action," whereby individuals can sue an agency not adequately enforcing some civil rights or environmental laws. The courts have been empowered to compensate lawyers who prevail in these suits for the fees and associated litigation expenses in order to encourage private enforcement of these laws.
Congress should expand the right of "private course of action" to allow any individual or group to sue an agency for issuing a regulation the benefits of which do not exceed the costs. If the private party is able to prove, by a reasonable standard, that a regulation is not cost-effective, that party would be entitled to normal legal fees plus the fees of professionals who did the necessary technical work.
The agency issuing the faulty regulation should be required to pay the awarded fees out of its own budget. In addition, the agency would be required to withdraw the regulation or reissue it to operate in a cost-effective manner.


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  1. Great idea! Unfortunately, the people who need to pass such laws are the ones most in sympathy with the prosepective sue-ees. Nevah hatchee.

  2. I guess this is what you do when you give up on winning political fights.

  3. The courts are specifically enjoined, in hearing appeals, from basing their decisions on the merits of the law, needing only to find a “rational nexus” between a legitimate public goal and the law implemented to achieve it. While dressed up in phoney-baloney scientistic language (what is the value of 10,000 additional people per year seeing critters frolic in the woods? $0? $infinite?), this is really an attempt to put judges in the position of ruling on whether they think a law is a good idea.

    Of course, the transparent purpose is not to overturn laws, since the judges are bound to give great deference to the people doing the job they were told by Congress to do, and exercising the judgement they were told by Congress to exercise. The purpose is to tie up the agencies in frivolous lawsuits.

    So now we’ve got a small government conservative arguing for courts subsituting their own judgement for that of Congress (which can direct the agencies to rewrite the regs whenever they feel like it, which happens hundreds of times per year).

  4. I concur generally with Joe’s comments. I would add that Rahn probably means “private cause of action,” although in fairness “course” may have originated with a copy editor at the WT rather than Rahn.

    (Actually, what Rahn probably means is something like “private attorney general” or “qui tam.”

    A statute or regulation provides a “private cause of action” when it grants private person A the right to sue private person B for damages for B’s violation of the statute or regulation. The federal securities laws provide a number of private causes of action.

    A “private attorney general” rule means that a private person suing for some kind of non-money-damages relief (e.g., to enjoin a civil rights violation) can recover attorney’s fees if he wins.

    A “qui tam” statute provides that a private person can sue for some wrong done to the government and keep some percentage of the recovery. I think whistleblowers at defense contractors sometimes bring qui tam suits.)

  5. For once, I’m (sorta) with joe on this one.

    I’m not in favor of regulatory agencies at all. But many of the objects of regulatory action would be covered either by criminal or civil sanction in a libertarian society; the regulatory state has preempted or crowded out these remedies.

    I would much prefer that the enforcement of such remedies be carried out by voluntary associations, pursuant to complaint by an injured party. But in any case, the person at fault should not be able to get off the hook by showing that the harm TO HIM is greater than the harm saved to everybody else.

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