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Agencies as litigation gatekeepers.

B. Deviations from the Gatekeeper Ideal

The analysis above paints a rosy portrait of the myriad ways an ideal agency vested with a full set of wholesale or retail gatekeeper powers can rationalize and optimize private enforcement efforts. But there is also good reason to be skeptical about the ability or willingness of agencies to perform these tasks. Consider three broad classes of problems that may generate deviations from the ideal gatekeeper role.

1. Institutional Competence and Capacity

A threshold question raised by calls to vest agencies with expansive gatekeeper powers is whether agencies have the technical competence and capacity to regulate private enforcement efforts in welfare-maximizing ways.

Turning first to the wholesale gatekeeper context helps lay bare a key aspect of the inquiry: any assessment of the institutional competence and capacity of agencies to perform gatekeeper tasks will necessarily be comparative. (151) The question is not whether agencies can make socially optimal decisions about, say, whether private rights of action should lie at all. In fact, one should be skeptical about the ability of any institutional actor to generate a perfectly accurate bottom-line social-welfare accounting of competing modes of enforcement in a complex regulatory regime. Instead, the question is whether agencies can by and large make better judgments along those lines, or do so more quickly or cheaply, than other institutional actors. (152)

Framed this way, the question in the wholesale gatekeeper context is an easy one, as there is little reason to believe that agencies are less capable or efficient than legislators or courts at making regime-wide judgments about the optimal scope of private enforcement--and plenty of reason to believe they are more so. Part of this flows from the usual observations about the superior expertise, synopticism, and fact-finding capacity of agencies. (153) Along these dimensions, agencies plainly dominate generalist courts passively adjudicating a stream of atomized and often idiosyncratic disputes. (154)

The same is likely true of legislatures as well, though the proliferation of legislative committees at the federal and state levels makes the institutional comparison a closer one. (155) In particular, wholesale gatekeeper decision-making will often involve an interconnected mix of ground-level factual questions about the enforcement landscape and higher-level, synthetic questions about the overall "coherence" of the regulatory regime. How costly is private enforcement relative to public enforcement? Do private enforcers tend to target misconduct that public enforcers miss, or are they more likely to piggyback on public enforcement initiatives? What combination of enforcement modes will best achieve long-term regulatory goals by, for instance, facilitating collaborative problem-solving between regulators and regulated? Agencies operating within their assigned regulatory bailiwicks are not just likely to have defter command of these high- and low-level issues than legislators. They will also be better suited to perform ongoing monitoring, ensuring timelier updating of prior wholesale gatekeeper decisions about whether and which claims should be private-enforcement-eligible. (156)

While the superior competence and capacity of agencies are thus mostly settled in the wholesale context, this is plainly less true in the retail context. The difference lies in the nature of retail gatekeeping: the principal retail-level gatekeeper task is not forming broad-scale, "legislative" judgments about the net social costs or benefits of competing regulatory approaches but rather a far more quotidian, "adjudicative" sorting of more and less meritorious cases. One implication is that the nature of retail gatekeeping shifts the primary institutional comparison to be performed. The competence and capacity inquiry in the wholesale gatekeeper context mostly distills to a comparison of agencies and legislatures. In the retail context, however, the primary comparison is between agencies and courts.

A second implication is that our judgment as to which of these institutions-agencies or courts-is better situated to assess case merit will turn, at least in part, on how merit is conceptualized in the first instance. American legal culture trades in at least three distinct conceptions of case merit. The first is probabilistic and comparative: a case is more meritorious than another if the defendant is more likely to be held liable for some remedy. (157) A second is pegged to social value: a case is meritorious if its successful prosecution would, on balance, enhance social welfare. (158) A third is legalistic: a case has merit if it is true that the defendant has violated a valid legal injunction. (159)

At one level, this menu of options offers little analytic traction. After all, a gatekeeper agency will likely make judgments tracking all three merit conceptions in performing the full slate of ideal retail gatekeeper tasks. As concrete examples, an ideal retail gatekeeper agency might terminate a case based on its determination that the social cost of enforcement would outstrip its social benefit (the second conception) or, alternatively, that the plaintiffs factual allegations, even if true, do not add up to a violation of a legal prohibition or injunction (the third conception). Similarly, an ideal retail gatekeeper agency deciding whether to allocate scarce public enforcement resources toward a case that features an under-resourced or overmatched private enforcer will almost certainly consider both the case's social value (the second conception) and also its probability of success with and without the benefit of government participation (the first conception). Judges, too, make similar assessments in adjudicating pretrial motions. (160)

Given that agencies and courts will deploy multiple and competing conceptions of merit in making gatekeeper decisions, it does not make sense to commit to one or another conception in rendering a comparative judgment about institutional capacity. Even so, it should be clear that systematic judgments about the relative competence and capacity of agencies and courts to perform retail gatekeeping will heavily depend on the weight accorded to particular gatekeeper tasks. Thus, where an agency is mainly using its retail, case-by-case gatekeeper powers to implement broad-scale judgments about which types of cases are welfare-enhancing and which welfare-decreasing, or where the agency is using those same powers to solve coordination problems or police fidelity to legislative purpose, its panoramic view of the regulatory landscape confers a clear advantage in the same way it does in the wholesale gatekeeper context. (161) But this advantage narrows and may even disappear entirely when the task at hand is merits-screening of the narrow, probabilistic sort. Indeed, both institutional actors have at their disposal substantial evidentiary tools-subpoenas and civil investigative demands on the one hand and civil discovery tools, as wielded by litigant-adversaries, on the other--that are unlikely to differ substantially in their probability--estimating utility. (162) As a result, there is little reason to believe that agencies wielding gatekeeper powers or courts will systematically vary in their capacity to judge a claim's factual sufficiency based on collected evidence or the weight to be accorded specific evidentiary showings, except perhaps in the most technical of areas. (163)

The inquiry's comparative nature and the contingency introduced by competing definitions of merit are not just important for deciding who decides in the retail context; they also expose critical tensions in the gatekeeper idea itself. If "merit" is understood in narrow probabilistic terms as the likelihood that a court will find liability, then retail gatekeeper authority will merely duplicate--though possibly more efficiently--the outcomes the judicial system would produce absent gatekeeper intervention. Here, the ideal agency gatekeeper is at best an efficiency-enhancing, adjudicatory "adjunct" to the courts that is not so different in concept from the "specialized" courts that dot the American regulatory landscape. (164) If, however, "merit" is understood more broadly to include a social welfare or legislative fidelity component, then agency gatekeeping takes on a fundamentally different and more "regulatory" character. Rather than serving as an adjudicatory adjunct, the agency is interposed between private enforcers and the courts to implement a conception of merit that is different from what judges or juries would otherwise deliver. (165)

Given these complexities, rigorous empirical evidence on agencies' merits-screening capacities is hard to come by. One approach would be to isolate a particular type of regulatory regime and compare all litigation outcomes--including voluntary dismissals, litigated judgments, and settlements--before and after a jurisdiction installed a gatekeeper regime to those same outcomes in a second, similarly situated jurisdiction that lacked gatekeeper structures throughout the study period. (166) The resulting "differences-in-differences" estimate would meaningfully isolate the systemic effect of an agency's gatekeeper actions on the volume and character of litigation efforts by washing (or "differencing") out other possible explanations for observed variance along these measures. (167)

However, even this ideal research design would fall considerably short of establishing agencies' superior merits-screening capacity. It could not, for instance, tell us how much of any observed change in litigation outcomes was attributable to actual agency gatekeeper decisions (and, thus, to an agency's actual ability to screen cases on merit grounds) as against litigants' perceptions (accurate or not) about the agency's merits-screening capacity or proclivity to use it. (168) Nor could such an approach tell us much about whether agencies can arrive at merits decisions more efficiently--that is, more quickly or while consuming fewer resources--than courts, at least not without large quantities of data about the parties' litigation costs and the resources consumed by agencies and courts in rendering their dispositions. Finally, even a sophisticated research design such as the above would be stymied where a gatekeeper agency possesses the power to intervene in and take control of, rather than merely terminate, private enforcement actions. Here, the government's decision to enter a case operates as both a selection and treatment effect in ways that are famously difficult to pry apart empirically. (169)

What little empirical evidence from actual gatekeeper regimes that exists well illustrates these methodological challenges. For example, numerous studies have evaluated the decisional output of state-level medical malpractice screening panels, with most finding few statistically meaningful differences across states with and without panels in the frequency, severity, timeliness, or cost of claims. (170) But a few scattered studies have painted a more discouraging portrait for panel advocates, finding an overall increase in litigation volume and time-to-resolution in states with mandatory screening panels relative to those without. (171) One possible interpretation of the finding that panels increase claim frequency is that plaintiffs are more willing to litigate claims despite adverse panel decisions because they view those decisions as biased or unreliable. (172) This would suggest that the panels lack merits-screening capacity. But a more likely explanation is that the panels operate to subsidize claims by offering a low-cost expert opinion that is fully admissible in subsequent litigation in most states, thus reducing plaintiff-side litigation costs and inducing plaintiffs to bring claims they otherwise would not. (173) Importantly, some (though not all) of these newly filed cases will be at least as "meritorious" as the average case in the nonpanel case pool in the sense of the probability of achieving a positive litigation outcome. (174) But without an objective measure of the underlying likelihood of success, we cannot know how many of these new cases are stronger and how many weaker than before, frustrating firm inferences about the panels' merits-screening capacity or their overall effect on the litigation regime. (175)

Perhaps the two best empirical efforts to date avoid these difficulties but offer conflicting findings and also reveal interpretive problems of their own. First, a recent large-scale study of job discrimination litigation found that the EEOC staffs internal, nonpublic triage characterizations of case merit as well as its formal, public "cause" determinations bore little or no relationship to subsequent litigation outcomes. (176) This suggests (but does not prove) that EEOC merit judgments, if transformed into fully binding case-termination decisions, would not offer a more efficient, preemptive alternative to judicial resolution. (177)

Here again, however, we run up against a critical tension in the gatekeeper idea as to whether gatekeeper agencies should serve as an efficiency-enhancing, adjudicatory adjunct to the courts, or whether they should serve a more "regulatory" role, implementing a conception of merit that departs from merely predicting what a judge or jury would do. If the EEOC is viewed as an adjudicatory "adjunct" to the courts whose principal task is to filter out cases using a probabilistic conception of merit, then the divergence of EEOC triage decisions from subsequent litigation outcomes should give pause to regulatory architects considering gatekeeper designs. If, however, the EEOC's gatekeeper role is defined more broadly to include a social welfare or legislative fidelity component, then the apparent disconnect between EEOC triage decisions and ultimate litigation outcomes might be grounds for cautious optimism rather than concern. (178)

The other rigorous gatekeeper study, this one examining DOJ decisions to intervene in qui tam suits under the FCA, offers a pointed contrast to the EEOC study, finding that the DOJ possesses at least some merits-screening capacity in the sense of predicting judicial outcomes. (179) Yet even this finding does not answer the key comparative question as to whether the DOJ reached those decisions more efficiently than would courts adjudicating those same cases in a counterfactual world without any DOJ gatekeeper role. More importantly, the FCA regime hardly offers a conservative test. Qui tam cases are famously technical, and agencies are likely to enjoy an advantage over generalist courts in more complex regulatory contexts. (180) In addition, because private qui tam relators assert claims for fraud on behalf of the government in connection with federal programs or expenditures, the DOJ enjoys privileged access to information about case merits, as it can work directly with the agency allegedly defrauded to develop necessary evidence. By contrast, EPA gatekeeper decisions about whether to displace environmental "citizen suits" require investigation well beyond government boundaries in determining whether, say, a regulatory target has unlawfully released pollutants. In nontechnical cases involving subject matter that is largely divorced from governmental activity, the agency's advantage may narrow or even vanish. (181)

To be sure, the above rehearsal of theory and evidence is stylized and incomplete. (182) For now, however, one can hazard some general conclusions about the relative competence and capacity of agencies to perform litigation gatekeeper tasks. The first is that the competence and capacity advantages agencies enjoy over courts are probably narrower in the retail gatekeeper context than in the wholesale context. Second, and more specifically, the comparative advantage of agencies in the retail gatekeeper context, if any, will likely turn on context- and regime-specific factors, including the degree of technicality of a given regulatory area, the presence or absence of jury decision-making, and the extent to which the agency enjoys preferred access to evidentiary materials on which to base merits judgments.

Together, these two observations add up to a third: many commentators who have made calls to vest agencies with expansive gatekeeper powers see retail-level merits screening and case termination as the sine qua non of the ideal agency gatekeeper role. (183) And yet, the above analysis suggests that case termination is the gatekeeper task where the competence and capacity gap between agencies and courts is likely to be narrowest. By contrast, the agency advantage would seem to be widest when used to steer private enforcement actions in more public-interested directions, promote cooperation with regulated industry, enhance the consistency and coherence of regulatory implementation, or police fidelity to the legislative design. (184) To that extent, the justification for vesting agencies with retail gatekeeper powers in many regulatory contexts is unlikely to be founded solely on an agency's ability to cull meritless cases.

2. Regulatory "Capture"

Even if agencies have the capacity to perform gatekeeping tasks in welfare-maximizing ways, they may lack the will to do so. An influential line of analysis holds that administrative agencies suffer from a range of bureaucratic pathologies, particularly in their susceptibility to regulatory "capture." (185) In its standard form, capture theory predicts that certain groups will systematically win out over other groups in the regulatory process, both because they face more concentrated benefits or costs and so have greater incentive to invest in information or lobbying efforts, and also because they can better solve the collective action problems that often stymie group-based political action. (186) Applying these ideas to the gatekeeper context, we might thus worry that regulated parties will exert disproportionate influence over agency gatekeepers, systematically bending gatekeeping decisions in their favor and thus compromising the agency's stewardship of zealousness, coordination, and legislative fidelity within the regime.

Yet capture arguments quickly run into well known problems. As an initial matter, whether agencies can be "captured" at all is a contestable issue, both theoretically and empirically. (187) More fundamentally, assessing capture--like assessing institutional competence and capacity--is necessarily comparative. And here, public law scholars offer a musical-chairs of arguments about which institutions, if any, are more or less vulnerable. One view is that agencies might be less susceptible to patterns of political control than institutional alternatives, particularly legislatures, because of their ability to carve out a sphere of "bureaucratic autonomy" from the pull and haul of politics. (188) Far better, the argument goes, to have expert agencies--as opposed to legislatures and, more specifically, legislative committees--make wholesale gatekeeper judgments about the optimal reach of private enforcement. (189) A second view concludes just the opposite: because agencies operate in close proximity to regulated parties, they are uniquely susceptible to political influence compared to legislatures or Article III courts. (190) Still another view rejects both positions and holds that, when it comes to the asymmetric stakes and collective action problems at capture theory's core, legislatures, agencies, and courts tend to "move together." (191) Thus, regulated entities might capture the gatekeeper agencies directly, using their superior organizational capacity and resource endowments to bend gatekeeper decisions in their favor, or they might accomplish those same ends indirectly by capturing political overseers (whether legislative or executive) or courts (via the litigation process).

The obvious problem with these starkly different views is that it is hard to know whether we should be concerned about gatekeeper capture at all. One possibility is that interposing agencies into the litigation process will be neutral or even positive with respect to capture effects. Indeed, gatekeeping may merely reproduce capture dynamics that already exist elsewhere within the system, but many of gatekeeping's benefits--decisions grounded in a more technocratic and comprehensive command of the regulatory landscape, or more accurate and efficient filtering of meritless cases--will remain fully intact. A more pessimistic possibility, however, is that interposing agencies as gatekeepers will make capture dynamics far worse. On this view, gatekeeper regimes will multiply sites for unfair political influence, empowering interested groups to use their organizational and resource-based advantages to turn regulatory outcomes to their advantage even beyond what they might achieve in the legislative and judicial process.

Unfortunately, available empirical evidence does little to adjudicate between these very different scenarios. Thus, the long empirical literature on political control of bureaucracy confirms that the political pressures that can distort agency enforcement decisions operate through multiple channels, particularly legislative committees. (192) That same literature also surveys the conditions under which an agency may be more or less resistant to external pressures, including the agency's degree of budgetary independence, (193) the breadth of the agency's jurisdiction, (194) the agency's internal structure, (195) or the degree of legislative and executive control over appointment and removal of agency heads. (196) And yet, this literature permits few bottom-line conclusions about whether agency gatekeeping will exacerbate or mitigate capture concerns across the run of possible applications. As with institutional competence and capacity concerns, the degree to which capture dynamics drive deviations from the gatekeeper ideal articulated in Section III.A will be highly contextual.

The few empirical studies that focus on actual gatekeeper regimes are no more conclusive and once more underscore the extent to which gatekeeper regimes must be assessed through close, case-by-case analysis rather than general rules. For instance, recent studies examining the DOJ's use of its power to commandeer qui tam suits brought under the FCA reveal a trio of troubling regularities: the DOJ is more likely to join cases brought by former DOJ attorneys now serving as plaintiff-relator's counsel; (197) the DOJ is less likely to join cases brought against Fortune 100 companies or top defense contractors; (198) and qui tam cases relating to controversial war efforts in Iraq and Afghanistan remained under DOJ investigation longer than other defense-related cases during the George W. Bush Administration and then were quickly acted upon during the Obama Administration, suggesting a partisan pattern of delay. (199)

Yet these findings once more expose the ambiguities at capture theory's core. As an initial matter, it is hard to know whether the DOJ's seeming soft-pedaling of defense cases results from overly cozy relationships between the Department of Defense and the "old generals" network within the defense contractor establishment, simple overhead political control (e.g., the Administration's desire to deflect attention from unpopular war efforts), or a combination of both. This is important, for one cannot insulate agencies from capture dynamics without first identifying their source. Indeed, greater bureaucratic autonomy might mitigate capture resulting from political control transmitted via the White House or congressional committees, but it may at the same time exacerbate "revolving door" forms of capture.

More importantly, these empirical findings hardly provide ironclad proof of something we can call capture. To be sure, lower DOJ intervention rates against large defendant companies and defense contractors might well reflect agency timidity in the face of those entities' political influence or litigation resources. (200) Large defense contractors may also be uniquely unattractive enforcement targets because they are too important to debar from future government work, substantially reducing the government's litigation leverage. (201) It is just as possible, however, that larger companies draw more marginal qui tam complaints because they are perceived by private plaintiff-relators as having deeper pockets or being more sensitive to public relations concerns. (202) As with perennial claims in other regulatory contexts that this or the other agency has been captured or is otherwise engaged in covert transfers, the empirical evidence here is equivocal. (203)

Nonetheless, consideration of the DOJ's gatekeeper activities in the FCA context helps us to carve out some more general observations from the conceptual and empirical morass. First, it seems clear that capture, to the extent it exists at all, will be far more likely to rear its head in the retail than in the wholesale gatekeeper context. Part of this is practical: it will often be difficult for legislative overseers to detect capture-related distortions across a large body of individual agency decisions. This is particularly true of qui tam lawsuits, some of which remain under seal even after the DOJ renders a gatekeeper decision. (204)

Yet the greater susceptibility of retail gatekeeper agencies to capture has a deeper, theoretical basis as well. Traditionally understood, capture results from asymmetric stakes and the logic of collective action, but it also requires a "rationally ignorant" public. (205) This is important, for a long literature with theoretical and empirical components suggests that agency adjudication is more likely than rulemaking to facilitate capture because adjudication is less visible and less salient to the general public. (206) Applied to the gatekeeper context, the greater opacity of retail gatekeeper decisions means that they are less likely, in political science argot, to transform "latent" publics into "concerned" and fully "mobilized" publics. (207) Here, then, is yet another reason to be skeptical about the ability of agencies to perform retail gatekeeping tasks in particular. Just as Subsection III.B.1 found that the competence and capacity advantages of agencies were likely narrowest in the retail gatekeeper context, we might also harbor reasonable concern that agencies exercising retail gatekeeper powers will be more susceptible to capture than those vested with wholesale powers.

Second, concrete examination of the DOJ's oversight activities in the FCA context highlights some of the acute challenges regulatory architects will face in insulating gatekeeper agencies from capture. One aspect of this has already been noted: regulatory designers cannot insulate agencies from corrupting external pressures unless they can distinguish among capture dynamics issuing from the White House, congressional committees, or a revolving door with industry. (208) The fact that decision-distorting political pressures operate through multiple channels can thus present regulatory designers with something of a Catch-22. In the FCA context, for instance, one could insulate DOJ gatekeeper decisions from legislative pressures that may be skewing them in favor of Fortune 100 companies or defense contractors by rendering DOJ enforcement efforts self-funding, or by granting agency officials charged with gatekeeper duties greater protection from removal. But shielding the DOJ from political oversight in this way will also grant the agency freer rein to dispense regulatory favors to former DOJ insiders. In other words, one cannot mitigate one type of capture without facilitating another.

A range of other, more specific mechanisms designed to mitigate capture concerns likewise entail substantial costs. Thus, regulatory designers concerned about capture could, rather than granting agency heads greater budgetary control or removal protection, instead tweak the agency's various gatekeeper powers directly. Among other things, one might fortify the procedures that govern agency gatekeeper decision-making beyond those required under the APA; grant the agency a "veto" rather than a "license" gate, thus empowering private enforcers to go it alone and potentially force the agency's hand; or, relatedly, install a "tiered" bounty system that grants private enforcers a higher pay-out where the agency has refused to join the action in order to incentivize solo and possibly agency-forcing private enforcement efforts. However, and as discussed in greater detail in Section III.C below, each of these options imposes critical design tradeoffs that regulatory architects must take account of in choosing among gatekeeper designs.

3. Political Oversight and Bureaucratic Behavior

The possibility that gatekeeper agencies might be susceptible to deterrence-diluting capture does not exhaust the ways politics or other external pressures can drive deviations from Section III.A's gatekeeper ideal. A subtly different but potentially more important set of concerns arises from two influential claims about bureaucratic behavior that have co-existed, sometimes awkwardly, alongside the scholarly preoccupation with agency capture. The first is that agencies and agency personnel exhibit tendencies toward self-aggrandizement, allocating resources with an eye to collecting political and personal rewards and ensuring the continued flow of resources to the agency. (209) The second is that agencies tend to be overly cautious concerning risks within their regulatory bailiwicks. (210) The result is a final cluster of concerns that regulatory architects should carefully consider before vesting agencies with gatekeeper powers.

Perhaps the best place to bring into focus the ways bureaucratic behavior can distort gatekeeper decision-making is to explore a retail gatekeeper agency's power to intervene in and take over control of private enforcement actions. As noted in Section III.A, an ideal agency with full retail gatekeeper powers will maximally rely on well-incentivized, well-resourced private enforcers to perform enforcement tasks, thus conserving scarce agency resources for other welfare-maximizing tasks. (211)

Yet the self-aggrandizement hypothesis suggests that a gatekeeper agency armed with intervention authority may instead deploy its power in pursuit of a very different set of regulatory outputs. For instance, we might expect that a gatekeeper agency whose resources depend on winning the favor of political overseers will seek to maximize objective and observable measures of enforcement success, such as total monetary recoveries, over harder-to-quantify and empirically contestable goals such as total illegal activity deterred or aggregate welfare gains. (212) Interestingly, the gatekeeper decisions of an agency that seeks to maximize total recoveries will yield an overall enforcement strategy that is little different from that of unregulated profit-seeking private enforcers. (213) To that extent, a gatekeeper agency focused on maximizing recoveries may reinforce, rather than mitigate, the problem of socially costly overdeterrence.

Other possible agency maximands can yield even more substantial deviations from the gatekeeper ideal. For instance, an agency might join cases with an eye to maximizing its win/loss ratio. (214) By cherry-picking strong cases and creating a substantial spread between win rates in cases it joins and those it does not, it can signal its pivotal role to political overseers. A win-maximizing agency might thus focus scarce public enforcement resources on smaller, easier-to-win cases, leaving more consequential misconduct undeterred. (215) Worse, such an agency might seek to maximize recoveries in which public enforcers actively participate. (216) The motive here should be obvious: another agency win may generate better press than a mix of public and private successes. (217) Both scenarios run directly contrary to the gatekeeper ideal in which public enforcers carefully husband private enforcement capacity, delegating enforcement duties to competent and trustworthy private enforcers and thus freeing up scarce public resources for other enforcement and gatekeeper tasks. (218)

The above dynamics have a further, and critically important, implication: a retail gatekeeper agency focused on maintaining access to resources will be unlikely to make optimal use of its authority to terminate inefficient private enforcement efforts. Part of this is a continuation of the logic of a self-aggrandizing agency: a politically conscious gatekeeper agency focused on maintaining access to needed resources will steer its efforts toward readily observable measures of enforcement success, such as recovery counts and amounts, rather than purely reactive case terminations. In addition, the self-aggrandizement and excessive-caution hypotheses, when read together, suggest that a typical agency, even an "expansionist" or "empire-building" one, will be "defensive" and "scandal-minimizing." (219) Applying these ideas to the gatekeeper context, we might therefore expect that agency officials will not block private enforcement efforts where subsequent events may turn up evidence of wrongdoing, thus embarrassing the agency, or where the actual and reputational costs of terminating bad lawsuits can be reliably shifted to the judiciary. (220) Worse, politically motivated agencies may in fact use their intervention authority to aid socially inefficient private enforcement efforts, since they will add to recovery tallies or the agency's win rate. (221)

A final potential concern flowing from a version of the self-aggrandizement theory is that, even when an agency's leadership is firmly committed to playing a welfare-maximizing role, it may be stymied in those efforts by the careerist incentives of agency personnel and problems of internal managerial control. For agencies exercising retail gatekeeper authority, the substantial and difficult task of assessing the merits of private enforcement actions will typically fall to line-level attorneys and their mid-level managers, each with their own personal and often career-oriented goals. (222) These personnel "may bias agency decisions toward larger and more consequential cases, smaller and potentially more winnable cases, or cases brought by more sophisticated private enforcers deemed to be better litigation partners, all in search of resume-burnishing successes." (223) Pursuit of any of these alternative goals may cause agency Deossify Agency Rulemaking, 47 ADMIN. L. REV 59, 59-60 (1995) (including greater transparency and democratic accountability among the benefits of rulemaking relative to adjudication). But cf. CROLEY, supra note 185, at 146 (conceding that adjudication's "exclusivity" raises concerns about "special access" and "regulatory favoritism," but arguing that other aspects of the process- such as ALJ "semi-independence"--renders adjudication an "unwieldy" mechanism for dispensing regulatory favors). gatekeeper decisions, and enforcement efforts more generally, to deviate from the social optimum.

The above collection of bureaucratic behavioral pathologies presents a formidable challenge to Section III.A's gatekeeper ideal. But to what extent do they find empirical support? As with capacity- and capture-based objections to agency gatekeeping, empirical evidence is scarce and inconclusive. Thus, securities scholars have long contended that the SEC tends to pursue relatively small cases in an effort to pad its success rate and win favor with political overseers rather than allocating scarce enforcement resources with an eye to optimizing deterrence and thus maximizing social welfare. (224) Similarly, EEOC critics assert that civil rights prosecutors initiate small and politically inoffensive cases, leaving more ambitious enforcement efforts to private enforcers. (225)

By contrast, empirical analysis of an actual gatekeeper regime-once more drawn from DOJ oversight of qui tam litigation--finds mixed evidence in support of bureaucratic behavioral concerns. On the one hand, examination of more than twenty years' worth of DOJ intervention decisions yields little evidence that DOJ gatekeeper decisions are skewed toward either low-value (and perhaps more winnable) cases or larger, marquee cases. (226) On the other hand, the evidence squarely establishes that DOJ rarely uses its termination authority to dismiss cases out from under private plaintiff-relators. (227) This further fuels the notion that, while case termination is the most commonly articulated justification for vesting agencies with gatekeeper authority, it is also where agencies may be least reliable.

C. Synthesis: Choosing Among Gatekeeper Designs and Tweaking Gatekeeper Performance

Armed with the above insights, we can begin to draw some broad conclusions about when to vest agencies with gatekeeper powers at all and, assuming doing so is worth the candle, how to choose among available designs.

First and foremost, wholesale gatekeeper authority is plainly a less flexible regulatory instrument than retail gatekeeper authority. To be sure, agencies wielding wholesale gatekeeper powers can make technically sound broad-scale judgments about the optimal reach of private enforcement, and will likely outperform legislatures in doing so. And wholesale gatekeeper agencies can achieve other valuable ends as well, switching private enforcement on and off to carve out a division of labor between public and private enforcement and minimize the transitional costs that accrue while legal mandates are in flux. However, wholesale gatekeeper powers, like ex ante legislative efforts, are blunt regulatory mechanisms. Unlike agencies wielding retail gatekeeper powers, wholesale gatekeeper agencies cannot terminate socially costly or duplicative private litigation efforts on a case-by-case basis, block collusive settlements, or leverage the litigation efforts of overmatched or reluctant private enforcers.

Yet if retail gatekeeping is a more flexible regulatory instrument, it is also potentially far more problematic. As noted at turns above, agencies wielding retail gatekeeper powers are likely more susceptible to capture and bureaucratic behavioral tendencies that warp their decision-making. They may also enjoy little comparative advantage over courts in performing the basic retail gatekeeper task of culling undesirable cases. Taken together, these observations offer critical perspective on calls to vest agencies such as the SEC with retail gatekeeper powers. While many such calls cast merits-screening as the heart of the ideal agency gatekeeper role, (228) theory and evidence suggest that agencies may be least able and willing to perform such a function.

Of course, this does not undermine all argument in favor of vesting agencies with retail gatekeeper powers. Retail gatekeeping may still add significant value where agencies have privileged access to merits-related information, as in the FCA context, or in especially complex regulatory areas, where returns to agency expertise are likely to be higher. (229) It is also important to note that case termination is not the only way retail gatekeeper agencies can rationalize litigation regimes. Indeed, certain retail gatekeeping tasks--such as leveraging overmatched private enforcers or using intervention or termination authority to steer the elaboration of legal mandates or counter the repeat-player advantages of regulated entities--may prove especially valuable early in the life of a litigation regime when plaintiff-side referral networks are immature and legal mandates are still being fleshed out via administrative and judicial interpretation.

Nor are regulatory designers without tools to mitigate agencies' worst bureaucratic tendencies by shaping agency incentives. For instance, regulatory designers concerned that a gatekeeper agency is under-utilizing its termination authority can subject the agency to liability for a prevailing defendant's fees and expenses in cases it does not join. (230) And where an agency is pursuing larger-scale, marquee cases to the detriment of smaller-scale cases that might not otherwise attract sufficient private enforcement efforts, legislators could specify a minimum recovery and require that the agency pay the difference if a non-terminated, unintervened action recovers less. (231) Judicious use of such measures can tweak gatekeeper performance and bring it closer to Section III. A's gatekeeper ideal. (232)

However, other design mechanisms that regulatory architects might use to counter agency capture or lassitude spotlight the difficult tradeoffs that inhere in choices among gatekeeper designs. For instance, one could fortify the procedures that govern gatekeeper decisions by, say, requiring an agency that invokes its wholesale gatekeeper powers to follow the full notice-and-comment procedures prescribed by the APA or provide a reasoned accounting of its retail-level decisions akin to what the APA requires in the formal adjudication context. (233) Greater transparency, some have claimed, will increase the visibility of low-salience administrative decisions and render agency gatekeepers "more readily subject to monitoring and discipline." (234) But fuller ventilation of agency gatekeeper decisions can also render a gatekeeper agency more vulnerable to the predations of legislative committees, aggravating capture concerns. (235) More importantly, transparency can exacerbate an agency's pursuit of political rewards, making it more inclined to privilege observable bureaucratic outputs, such as win-loss ratios or recoveries in agency-joined cases, over more public-interested goals. (236) In the end, fortified procedures designed to increase transparency may impair, rather than enhance, agency gatekeeper performance.

Other measures designed to combat agency capture or lethargy likewise risk distorting a gatekeeper agency's decision-making. As noted previously, regulatory architects might enlist private enforcers to play an anti-capture or agency-forcing role by vesting the agency with "veto" rather than "license" gatekeeper authority and, in addition, by paying higher ("tiered") bounties to private enforcers who persevere in cases that a captured or lackadaisical agency refuses to join. (237) However, tiered bounties will also raise the opportunity cost--i.e., the "price"--that a gatekeeper agency focused on maximizing returns to the federal fisc pays when it fully delegates enforcement authority to capable private enforcers. As a result, tiered bounties may tempt a good-faith but politically conscious agency to make overly aggressive use of its power to commandeer private actions, confounding sound management of available enforcement capacity and reducing private incentives to invest in such capacity in the first place. (238)

Finally, surveying the universe of possible gatekeeper structures alongside the problems that can afflict each suggests some designs to be avoided. Most notable in this regard is vesting agencies with non-binding (or, in Part II's terms, "advisory") retail gatekeeper authority. Indeed, available evidence on the performance of the medical malpractice screening panels, though subject to the usual concerns about generalizability, suggests that advisory gatekeeper authority, by offering a low-cost evaluation of case merit, incentivizes more and more time-consuming litigation while providing little benefit. (239) Of course, one could always spin this outcome as promoting access to justice by rendering certain claims privately marketable that would not otherwise be brought. But medical malpractice screening panels were devised with the opposite aim. And, even if expanding access is a laudable goal, one wonders why regulatory architects could not achieve that same end by simply adjusting the payouts available to private enforcers as a way to draw additional claims into the system.


To this point, we have explored a large body of theory and evidence to identify and assess the problems that afflict use of private litigation as a regulatory tool, reviewed the possible merits and demerits of vesting agencies with gatekeeper powers as a way to ameliorate those problems, and considered some of the tradeoffs that arise in choosing among gatekeeper designs. This final Part rounds out the analysis with a closer case study of how agency gatekeeping might be usefully deployed in a single, discrete context: job discrimination regulation under Title VII of the Civil Rights Act of 1964 and cognate federal antidiscrimination statutes. (240) Part of my aim is methodological: to model how policymakers might ask and answer questions about whether or how to choose gatekeeper structures in any given regulatory context. Yet my choice of job discrimination regulation is also substantively deliberate. As elaborated below, the Supreme Court's recent blockbuster decision in Wal-Mart Stores v. Dukes (241) was a watershed moment in the regime's history, capping a decades-long debate about how best to regulate job discrimination and rendering the regime uniquely ripe for revision. To that end, this Part asks how the above design principles and related insights regarding agency gatekeeping might be deployed in refashioning American job discrimination regulation.

A. The Challenge of Job Discrimination Regulation After Wal-Mart Stores v. Dukes

Few regulatory areas have generated more heated debate in recent decades than job discrimination. Part of the reason is the regime's sheer scale: as Figure 2 reflects, Title VII and related federal antidiscrimination statutes are the 800-pound gorilla of the American litigation state, currently generating nearly l00,000 formal "charges" filed with the EEOC each year, of which roughly 15,000 yield lawsuits in federal district court. (242) Part of it, too, is that the regime's sprawling and byzantine character-with its mix of public enforcement efforts by the EEOC and Attorney General, private lawsuits by claimants, and an EEOC administrative review process that private claimants must submit to before filing suit (243)--has provided endless fodder for argument about the nature of discrimination and how best to structure regulatory institutions to attack it.


That debate recently reached a fever pitch in response to the Supreme Court's 2011 decision in Wal-Mart Stores v. Dukes. (244) In that case, the Court rejected a mammoth class action lawsuit brought on behalf of 1.6 million current and former Wal-Mart employees alleging that a corporate culture permitting bias against women, when combined with a managerial structure delegating substantial job-related decision-making authority to local store managers, constituted actionable discrimination under Title VII. (245) Of course, the holding in the case--that a system of delegated decision-making that produces large statistical disparities in job outcomes cannot furnish the requisite commonality to support a class action under Rule 23--was technical and fact-intensive and has generated predictable debate about its applicability to future cases, whether in the job discrimination context or beyond. (246) Still, and wholly apart from the decision's on-the-ground effect, Wal-Mart was plainly a watershed moment in the regime's history, generating a reckoning of sorts about where the job discrimination regime has been and where it is going. Indeed, out of the heated debate both before and after Wal-Mart, one can glimpse an emerging consensus about the challenges of regulating job discrimination in the twenty-first century, with important implications for thinking about how the regime might be refashioned going forward.

The centerpiece of this rough consensus is that the nature of discrimination and the organization of the American workplace have both undergone a fundamental shift in recent decades. The first part of this view, as usefully summarized by Samuel Bagenstos, is that "modern-day employment discrimination is characterized less by overt, intentional discrimination than by unconscious or subtle biases." (247) Second, and just as important, the American workplace has grown flatter and more collaborative, rendering job discrimination "less a problem of discrete, harmful management decisions and more a problem arising from workplace interactions among workers at all levels of an occupational hierarchy." (248) A prescription follows from this diagnosis: if job discrimination regulation is to achieve further substantial labor market gains for protected workers, it must adopt a "structural" approach to the problem that targets the systemic effects of the implicit biases and subtle stereotypes embedded in individual and collective judgment. (249)

This view of the changing nature of job discrimination carries three significant implications for thinking about the optimal structure of the regime going forward. First, individualized, tort-like lawsuits are unlikely to achieve substantial further improvements in labor market outcomes for protected workers. Importantly, this is not because damages suits cannot generate an organizational response: it is well established that Title VII lawsuits during the regime's early life had both general and specific deterrence effects that helped move protected workers into employment ranks. (250) Rather, the reason is more practical. The nature of discrimination in the present-day workplace is less overt and explicit, and it provides ever fewer discrete decision-making nodes against which traditional legal-evidentiary tools can be directed. Indeed, as workplace hierarchies have flattened and overt, explicit forms of discrimination have receded, winning individualized job discrimination lawsuits has become increasingly difficulty. (251)

A second, and closely related, implication is that regulatory efforts that successfully implement the structural approach will tend to be large-scale and systemic in nature and will also rely upon aggregate forms of proof as a -way to reveal discriminatory decision-making structures. The Wal-Mart case, of course, is the ultimate exemplar: the Wal-Mart plaintiffs adduced highly aggregated statistical evidence showing marked disparities between male and female Wal-Mart employees in pay and promotion and also substantial qualitative evidence of gender bias via several dozen affidavits, though they could not explicitly connect the two. (252)

A third and final implication is cautionary regarding the second. In the best of circumstances, regulatory efforts implementing a structural approach will be deeply contested and will raise difficult questions about where to locate the wrong of discrimination. For critics, the structural theory of liability that plaintiffs pursued in Wal-Mart is problematic because it holds private employers responsible for broader societal forces. (253) Defenders, by contrast, take the view that private employers can and should be held liable for the costs associated with broader, unconscious discrimination where they "facilitate" the ground-level impact of such discrimination. (254) Structural enforcement efforts will thus require difficult and contentious line-drawings about the bounds of actionable discrimination. (255)

Yet in the current system, these lines are drawn not by politically accountable actors--and, indeed, not even as part of a merits determination by judges. Rather, they are drawn at the class certification stage using the clunky, facially procedural machinery of Rule 23. As many commentators have noted, when it comes to structural enforcement efforts, the procedural question--whether geographic dispersion or other differences across plaintiffs defeats certification under Rule 23's strictures--almost entirely merges with the question of whether, to use Wal-Mart as an example, a common policy of unguided discretion can be conceptualized as actionable discrimination at all. (256) As a result, structural enforcement efforts, while raising deep questions about the bounds of actionable discrimination, raise equally difficult questions about how--and, as elaborated below, where and by whom--adjudicatory decisions should be made.

B. Proposal: Reforming the Regime by Remaking the EEOC's Gatekeeper Role

With a better sense of the challenges posed by job discrimination regulation and also Part III's insights regarding optimal gatekeeper design, we can begin to reimagine the regime. Two core revisions promise to better align the existing system with contemporary workplace realities while mitigating the system's more evident flaws.

1. Dismantling EEOC Charge Processing

First, the EEOC's administrative charge resolution process, which private claimants must submit to before filing suit, adds strikingly little gatekeeper value and should be dismantled. As reflected in Figure 3 (and as described in passing in Part II's overview of gatekeeper designs), that time-consuming and resource-intensive process begins with an initial "triage" characterization of case merit by EEOC staff in order to allocate the case to one of three bureaucratic pathways. (257) The most meritorious tranche of cases (comprising roughly 15-20% of cases and receiving an internal "A" label) are investigated by the EEOC. When agency staff find the plaintiff's allegations supported by "reasonable cause," they attempt to "conciliate" the dispute by moving the parties to a voluntary resolution. (258) Cases of middling merit (roughly 55-60% of cases, labeled "B" cases) are recommended for the EEOC's voluntary mediation program. (259) For the remainder of the cases (roughly 20-30%, labeled "C" cases)--and also those "A" and "B" cases that have failed to resolve via conciliation and mediation efforts--the EEOC issues a "right to sue" letter authorizing the claimant to file a lawsuit in court. (260) Note that, because substantial EEOC investigation occurs only for cases falling into the most meritorious ("A") case group, the EEOC's issuance of right-to-sue letters is, in the vast majority of cases, a ministerial act that comes at the end of the statutory 180-day period with little or no agency engagement. (261)


Examining further details of the system reveals other problems, especially as to cases the EEOC initially determines to have the most merit. Past studies suggest that only five to ten percent of total charges, including those classed as "A" cases, receive a "reasonable cause" finding and proceed to conciliation at all, and less than one-third of those (roughly 3,000 cases) are successfully resolved--a vanishingly small proportion of total system throughput. (262) By comparison, roughly three-quarters of the 11,000 charges among the "B" cases that the parties are willing to mediate are successfully resolved. (263) The EEOC, in other words, achieves poorer results in the cases in which it invests far more of its limited resources. (264) And while it appears that successful conciliations typically generate larger recoveries than mediations--an average of $45,000 as against $17,000 in 2012 (265)--this may in fact strengthen the case for abolishing the conciliation process entirely, for it suggests that some, possibly many, cases within the current pool of conciliated claims would be attractive to plaintiffs' lawyers, paid via contingency fee, who would presumably take some of these cases even in the absence of EEOC assistance. (266)

More broadly, the EEOC charge resolution process, as with the medical malpractice screening panels examined in Parts II and III, almost certainly incentivizes more, and more marginal, claims by offering a low-cost initial evaluation of case merit, particularly in jurisdictions where EEOC "cause" findings are admissible in litigation. (267) And yet, the EEOC's charge resolution process appears to provide precious little gatekeeper value. As Part III showed, the only rigorous empirical study of EEOC gatekeeper activities to date found that neither EEOC triage categorizations nor the agency's "reasonable cause" determinations bore any statistically meaningful relationship to subsequent litigation outcomes among the subset of cases that emerged from the EEOC's process and generated lawsuits. (268) Thus, although the EEOC's charge resolution process may provide at least some merits-signaling value to the parties--perhaps facilitating settlements among the "A" cases subject to actual investigation--that process does not appear to provide reliable merits signals to courts once full-scale litigation has begun. This raises doubts about the competence and capacity of the EEOC to engage in merits-screening, or do so more efficiently, relative to courts.

The above facts make it easy to conclude, as others have, that the EEOC's charge processing system is not working. (269) And, in some ways, this should not be surprising. After all, the inclusion of EEOC conciliation at the dawn of the regime arose out of the then-prevailing view that discrimination was simply the "fruit of ignorance" or purely irrational prejudice that demanded a regulatory response focused on education, not legal coercion. (270) Put another way, conciliation was never intended to serve as a retail gatekeeper device within the conceptualization of Parts II and III.

The more difficult question is how to fix the regulatory scheme. One possibility is to abolish the investigation-conciliation process entirely, but to retain the EEOC triage process in order to route certain cases to an expanded or even mandatory mediation program. (271) Note, however, that the success of such a program would not be assured. As it currently operates, the mediation program may benefit from selection bias wherein the parties who are most likely to agree to it are also those most likely to reach a resolution. Furthermore, if, as may be the case, the triage process does not accurately sort cases by merit in the first place, it is dubious that the EEOC can efficiently channel worthy cases into the current mediation program, let alone an expanded version of it. This may counsel in favor of abolishing both conciliation and mediation--and thus putting the EEOC out of the business of processing individual disputes entirely.

2. A New "Systemic" Action and Robust EEOC Gatekeeping

The above analysis calls for fundamentally reshaping or even eliminating the EEOC's current role in processing individual disputes, thus sharply contracting its gatekeeper role. A second vital revision to the current regime would do just the opposite, vesting the EEOC with sweeping gatekeeper powers over all class action and "systemic" job discrimination suits--with the latter term defined (paralleling the EEOC's current definition) (272) as any case with twenty or more joined plaintiffs. (273)

Expanded EEOC gatekeeper power over class and systemic suits should have at least three critical components. First and foremost, the EEOC should be given (in Part II's terminology) "license" gatekeeper powers over class and systemic cases, with the agency's determination to allow a putative class action to proceed substituting for class certification under Rule 23. (274) Second, the EEOC should be given full intervention authority (in Part II's terms, displacement power with strong control rights) akin to what the DOJ wields in the FCA context. (275) This intervention authority would allow the EEOC to take the helm in large-scale actions, whether from the outset or in cases it licensed initially but which have since moved in directions that ill serve the public interest. Finally, and to guard against the moral hazard problem of a risk-averse EEOC that is too reticent to terminate cases--that is, an EEOC that too liberally licenses cases it reviews--the EEOC should be subjected to liability for a prevailing defendant's fees and costs in licensed, but unintervened, cases. As noted previously, such a fix can mute the "bailout effect" by countering the bureaucratic incentive to over-license private actions because of the agency's ability to shift termination costs, both actual and reputational, to the courts. (276)

This new suite of EEOC gatekeeper powers over larger-scale job discrimination suits would serve several salutary purposes. First, a strong EEOC gatekeeper role would inject a degree of public accountability into the normatively contestable question of which subjective employment practices constitute actionable discrimination. It would do so by transferring principal authority for determining the conceptual bounds of actionable discrimination from decentralized trial court judges deploying the spare procedural dictates of Rule 23 to a single, expert, and politically accountable agency. When combined with the curtailment of the EEOC's gatekeeper authority over small-scale actions, a more expansive EEOC gatekeeper role with respect to larger-scale actions would also effect a critical shift in emphasis within the regime by moving the focus of EEOC enforcement efforts away from individualized actions and toward more systemic ones, thus better aligning the system with a more structural approach. (277)

In addition to effecting a basic shift in emphasis, granting the EEOC expansive authority to intervene in and take control of large-scale job discrimination actions would allow the agency to play several of the more micro-level, litigation-rationalizing roles detailed in Part III. In particular, an EEOC armed with robust gatekeeper powers over class and systemic suits could settle, terminate, or steer cases in order to (i) prevent duplicative, piggyback litigation efforts; (278) (ii) counteract the repeat-player advantage that defendants might otherwise enjoy; (279) (iii) police cheap or collusive settlements by private class counsel; (280) and (iv) shield employers from transitional costs where plaintiffs advance a new theory of liability that may only belatedly be subject to legislative or appellate override. (281)

Perhaps most important of all, remaking the regime around an EEOC gatekeeper role that is both less and more expansive than at present may be a politically saleable compromise. Champions of the regime who favor a more structural approach to regulating job discrimination will surely applaud the effort to partially override the Court's decision in Wal-Mart and restore the vitality of larger-scale class actions. At the same time, some critics of the current regime will take succor from the outright abolition of the administrative charge resolution process and the likely decline in overall case filings that will result. (282) More importantly, some employers will applaud the EEOC's termination (via nonlicensing) of meritless large-scale actions that might otherwise proceed to costly and protracted class certification proceedings. They may derive comfort from what amounts to a reverse fee-shift via the EEOC's exposure to liability for a prevailing defendant's fees in licensed but unintervened cases. And they may well prefer a more expansive EEOC gatekeeper role because of its greater predictability relative to a system in which certification decisions depend, at least in part, on which district judge hears the case based on a spin of the wheel in the court clerk's office. (283)

3. Countering Likely Objections

The above overhaul of job discrimination regulation will surely draw objections, many of them derived from the core concerns with gatekeeper designs--competence, capture, and bureaucratic behavior--spotlighted in Part III. Some of these objections have already been anticipated and addressed, such as subjecting the EEOC to a reverse fee shift in order to guard against the bailout effect and overly liberal licensing of class and systemic suits by a risk-averse agency. (284) Other possible objections arising out of Part III's analysis, however, have not.

The first likely objection arising from Part III's catalog of concerns questions the EEOC's competence and capacity to exercise gatekeeper authority over class actions compared to courts adjudicating class certification motions. One version of the concern would ask why the EEOC should be granted substantial gatekeeper powers that depend, at least in part, on its capacity to engage in case-by-case merits-screening given evidence suggesting the agency possesses uncertain merits-screening prowess within the current charge-processing regime. (285) However, we should be wary of inferring anything about EEOC's ability to oversee class and systemic suits from its recent record of charge processing decisions. The many thousands of decisions the agency currently makes each year are distributed among hundreds of line-level staff in multiple district, field, and local offices. (286) By contrast, one would expect that EEOC gatekeeper decisions regarding the far more tractable number of class and systemic suits would be made far higher up in the agency's managerial hierarchy and only after thorough investigation and assessment by legal and non-legal staff. To that extent, the EEOC's exercise of gatekeeper powers over only class and systemic cases would almost certainly make better and more focused use of resident agency expertise.

A further version of the competence and capacity objection might note that the EEOC has in recent years sought to move toward heavier involvement in more systemic enforcement efforts, (287) and the results have not been pretty: several judges entered significant sanctions against the EEOC in 2012, and the agency suffered substantial defeats in a number of other cases that drew judicial comment about the agency's subpar case preparation and litigation capacity. (288) Yet even here, an expanded gatekeeper role should not be cause for substantial concern. This is because an ideal EEOC will maximally rely on well resourced and well incentivized private enforcers, stepping in only to terminate or take over enforcement efforts that have deviated from public purposes or to leverage under-resourced or overmatched enforcement efforts. (289) To that extent, the above proposal envisions a fully "hybrid" public-private enforcement model along the lines of the current qui tam regime under the FCA, making the EEOC's capacity to conduct full-scale systemic litigation on its own less relevant.

A second broad objection grounded in Part III's rendition of core concerns is that the above proposal, by injecting a degree of political accountability into the class certification question, might also permit employers with political clout to duck enforcement efforts via capture-like channels of influence. Political capture of the EEOC's gatekeeper apparatus, the argument goes, would erode deterrence and deprive some plaintiffs of recourse for no reason beyond their having sought employment at a politically influential company. But this, too, seems to be less of a concern. As noted previously, a gatekeeper agency's vulnerability to capture dynamics will likely turn on the scope, and thus the political salience, of the particular gatekeeper decisions it makes. (290) And in salience terms, we might think of EEOC gatekeeper decisions on large-scale class actions and systemic suits as occupying a middle ground between the numerous retail-level gatekeeper decisions the DOJ makes in the FCA context regarding individual and often small-scale qui tam suits and the wholesale gatekeeper decisions federal agencies make in the regulatory preemption context in deciding whether private rights of action should lie at all. The high salience of EEOC decisions as to the few hundred class and systemic actions filed annually may make dispensing regulatory favors without detection difficult, thus allaying capture concerns.

The remaining objections extend beyond the core concerns highlighted in Part III but nonetheless help bring into relief some of the tradeoffs inherent in the agency gatekeeper approach. One is that the abolition of EEOC charge processing will leave claimants with legitimate but smaller-scale grievances without legal recourse because of their inability to obtain counsel. (291) But this should be less concerning given the realities of the current regime. As noted previously, even cases that receive the EEOC's "A" triage label are unlikely to receive a "cause" determination after the agency's investigation, (292) raising questions about the overall merit of the vast majority of charges in the pool. The brutal reality is that the social cost of processing and adjudicating the tens of thousands of small-scale, individual disputes that currently dominate the system may exceed their social benefit.

More importantly, the above proposal should lead to an uptick in "structural" enforcement efforts (at least compared to the current post-Wal-Mart status quo) and these actions will, whether through specific or general deterrence channels, also benefit workers who might have otherwise filed smaller-scale, individual claims. (293) Here again, this is not to deny that the proposal, by shifting enforcement emphasis within the regime from individual to class and systemic suits, will have distributive consequences in terms of who benefits and who does not. As just noted, the current charge processing system plainly serves as a forum for low-value claims, and these claims are also systematically more likely to involve lower-income, minority, and female claimants. (294) Rather, the point is that those consequences need not be zero-sum as between particular plaintiff or claim types. In the end, many plaintiffs, including some who can only pursue individual actions in the current, post-Wal-Mart state of the world, may do better under the above-proposed resuscitation of class and systemic actions than they do now.

A second concern is that the abolition of charge processing will strain already-crowded district court dockets if cases that currently resolve via conciliation and mediation (or otherwise reach settlement during EEOC processing efforts) were to flow directly into federal courts. (295) Yet as noted previously, the total number of successful conciliations and mediations is small--ten percent of total charges (296)--and it is a plausible assumption that many of these cases would be amicably resolved prior to litigation even without EEOC involvement. (297) Moreover, it was just noted that, much like medical malpractice screening panels, EEOC charge processing likely acts as a claimant-subsidizing magnet, drawing some claims into the system that might not surface otherwise, some of which then go on to yield lawsuits. (298) As a result, the abolition of EEOC charge resolution will place at least some downward, and possibly offsetting, pressure on district court filings. (299) As a final note here, it bears emphasis that abolishing EEOC charge processing does not scrub the system of all merits-based gatekeeping. Rather, it shifts that responsibility to the plaintiffs' employment bar. At the dawn of the Title VII regime, this was unthinkable, as the number of plaintiff-side employment lawyers (or other lawyers, especially African-Americans with links to civil rights groups, able and willing to serve in that role) was quite limited, particularly in the South. (300) But today, the plaintiffs' employment bar is well-capitalized financially and intellectually, and already serves a critical case-screening function separate from EEOC charge processing. (301)

Third, critics of the above proposal may object not to the capture risk that comes with the EEOC's greater political accountability relative to courts, but rather to the politicization of job discrimination regulation itself. One version of this critique takes a functionalist form. Thus, one might worry that vesting the EEOC with expansive gatekeeper powers will cause enforcement levels to lurch from one extreme to another in tandem with changeovers in partisan political control, thus defeating private enforcement's salutary role, according to its champions, as a stable, "failsafe" mode of enforcement. (302) This, the argument would go, should be of particular concern because the above proposal, by effectively transferring the class certification determination to the EEOC, vests the agency with something akin to soft rulemaking authority in defining which employer practices constitute actionable discrimination. A further version of the politicization critique sweeps far more broadly and objects to the above proposal's prioritization of a politics-based model of administration over a rights-based model of litigation, either because civil rights is somehow different from other regulatory areas (303) or because the permissible degree of political control over private litigation is (or should be) shaped by due process or other constitutional values. (304)

Neither concern, however, makes much headway. To begin, while it is clear that vesting the EEOC with gatekeeper authority over class and systemic suits will inject a partisan political cast into job discrimination regulation, (305) it is less clear why political variability in job discrimination regulation should not be seen as a welcome improvement over the current state of affairs. As noted previously, frontier regulatory questions about which subjective employment practices constitute actionable job discrimination are deeply normatively contested. (306) Given this, it is not obvious why regulation of such practices should be more politically insulated than, say, occupational safety, environmental protection, or--perhaps most analogous of all--labor policy, where regulatory stringency clearly, if not entirely uncontroversially, varies across patterns of party control. (307) In any event, those who hold a civil rights exceptionalist view or otherwise believe that, unlike other regulatory areas, job discrimination regulation should not vary with patterns of political control can take comfort in the fact that the above proposal will leave adjudication of individual claims, as against class and systemic claims, fully in judicial hands, without even EEOC charge processing to interfere with a claimant's day in court.

Further, and though a full rejoinder to the constitutional version of the politicization critique is beyond the scope of this Article, a preliminary analysis suggests that the Constitution presents no barriers to vesting agencies with gatekeeper powers of the sort proposed here. So long as Congress characterizes--or, in the case of already-existing statutes, recharacterizes--the underlying right as contingent on agency action, vesting an agency with gatekeeper powers does not appear to run afoul of the Due Process Clause, Article III, or the Seventh Amendment. (308)


This Article has sought to open up new ways of seeing the role of administration in the modern American regulatory state by mapping a range of ways policymakers can vest agencies with litigation "gatekeeper" powers over private lawsuits in order to rationalize and optimize litigation regimes. The principal goal has been to provide a common nomenclature and a generalized set of evaluative tools that are as applicable to environmental protection and civil rights as they are to antitrust and securities. The analysis has also sought to bring agency gatekeeping more squarely onto the menu of available "litigation reforms" and show that gatekeeping may prove a more promising reform avenue than conventional tort-reform-like measures centered around damages caps, attorney fee shifts, or pleading standards. A final aim has been to model how gatekeeping might be deployed in specific regulatory contexts by using gatekeeper ideas to rethink and refashion American job discrimination regulation.

Going forward, two types of inquiry are in order, one theoretical and the other empirical. On the theoretical side, we need better theories to understand what the ideal agency gatekeeper role should be in a world of coordinated public-private enforcement, and also how particular institutional designs might best facilitate that role. On the empirical side, we need more micro-institutional analyses targeting specific regulatory contexts that can help us gauge how and when agency gatekeeping works, or does not work, on the ground. Offering a synthetic accounting of the agency gatekeeper concept, this Article can hopefully stimulate scholarly work in both directions.

(1.) See SEAN FARHANG, THE LITIGATION STATE: PUBLIC REGULATION AND PRIVATE LAWSUITS IN THE U.S. 60 (2010) (noting the rise of "private enforcement regimes" as a regulatory mechanism beginning in the late 1960s); see also THOMAS F. BURKE, LAWYERS, LAWSUITS, AND LEGAL RIGHTS: THE BATTLE OVER LITIGATION IN AMERICAN SOCIETY 11 (2002) (same); John C. Coffee, Jr., Understanding the Plaintiffs Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 COLUM. L. REV. 669, 669 (1986) ("American law relies upon private litigants to enforce substantive provisions of law that in other legal systems are left largely to the discretion of public enforcement agencies.").

(2.) See infra note 35 and accompanying text.

(3.) See infra Section LB.

(4.) See Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 VA. L. REV. 93, 95 (2005) (arguing for greater agency authority "to create and delimit private rights of action"); Richard J. Pierce, Jr., Agency Authority to Define the Scope of Private Rights of Action, 48 ADMIN. L. REV. 1 (1996) (advancing the same argument); see also Brian D. Galle, Can Federal Agencies Authorize Private Suits Under Section 19837: A Theoretical Approach, 69 BROOK. L. REV. 163, 165 (2003) (advancing the same argument in the civil rights context); Joseph A. Grundfest, Disimplying Private Rights of Action Under the Federal Securities Laws: The Commission's Authority, 107 HARV. L. REV. 961 (1994) (advancing the same argument in the context of securities litigation); James J. Park, Rules, Principles, and the Competition to Enforce the Securities Laws, 100 CALIF. L. REV. 115, 174-75 (2012) (same); Brianne J. Gorod, Case Comment, The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action, 113 YALE L.J. 939, 944-46 (2004) (advancing the same argument in the civil rights context).

(5.) See Janet Cooper Alexander, Rethinking Damages in Securities Class Actions, 48 SWAN. L. REV. 1487 (1996) (applying this theory to securities enforcement); Pamela H. Bucy, Private Justice, 76 S. CAL. L. REV. 1, 52-53, 72 (2002) (applying this theory to environmental protection and false claims); Jill E. Fisch, Class Action Rearm, Qui Tam, and the Role of the Plaintiff, 60 LAW & CONTEMP. PROBS. 167 (1997) (applying this theory to environmental protection and securities); Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384 (2000) (applying this theory to civil rights claims); Park, supra note 4, at 175 (discussing this theory in the context of securities litigation); Richard A. Posner, Antitrust in the New Economy, 68 ANTITRUST L.J. 925, 941 (2001) (applying this theory to antitrust); Geoffrey Christopher Rapp, False Claims, Not Securities Fraud: Towards Corporate Governance by Whistleblowers, 15 NEXUS: CHAPMAN'S J.L. & POL'Y 55 (2009) (applying this theory to securities); Amanda M. Rose, Reforming Securities Litigation Reform: Restructuring the Relationship Between Public and Private Enforcement of Rule 10B-5, 108 COLUM. L. REV. 1301 (2008) (same); Heidi Mandanis Schooner, Private Enforcement of Systemic Risk Regulation, 43 CREIGHTON L. REV. 993, 1012-13 (2010) (same); Dennis J. Ventry, Jr., Whistleblowers and Qui Tam for Tax, 61 TAX LAW. 357 (2008) (applying this theory to tax); Jennifer Arlen, Public Versus Private Enforcement of Securities Fraud 46 (2007) (unpublished manuscript), (applying this theory to securities enforcement).

(6.) In addition to the specific gatekeeper calls referenced in notes 4-5 supra, commentators have made myriad other calls for a more expansive agency role in litigation regimes. See, e.g., RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 220-22 (2007) (framing mass tort settlements as a form of "governance" and proposing an agency-led negotiated-rulemaking mechanism for achieving such settlements); Tamar Frankel, Let the Securities and Exchange Commission Outsource Enforcement by Litigation: A Proposal, 11 J. Bus. & SEC. L. 111, 119-20 (2010) (proposing an auction/license model for coordinating public and private enforcement); C. Scott Hemphill, An Aggregate Approach to Antitrust: Using New Data and Rulemaking to Preserve Drug Competition, 109 COLUM. L. REV. 629 (2009) (arguing for a more assertive agency role to remedy the informational "aggregation deficit" in a regulatory regime built around private enforcement); Jonathan R. Macey & Geoffrey P. Miller, The Plaintiffs' Attorney's Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform, 58 U. CHI. L. REV. 1, 115 (1991) (advancing an "auction" approach) ; A. Mitchell Polinsky & Steven Shavell, Public Enforcement of Law, in CRIMINAL LAW AND ECONOMICS 1, 55 (N. Garoupa ed., 2009) (asking whether the state should "regulate private litigation so as to better coordinate it with public enforcement"); David Rosenberg & James P. Sullivan, Coordinating Private Class Action and Public Agency Enforcement of Antitrust Law, 2 J. COMPETITION L. & ECON. 159, 178 (2006) (advocating an "auction-buyback mechanism").

(7.) The closest to a synthetic treatment can be found in Stephenson, supra note 4. However, Stephenson's insightful work focuses on what I label "wholesale" agency gatekeeping, see infra Subsection II.A.2, and then turns to mostly doctrinal concerns.

(8.) See infra Section II.A (categorizing existing gatekeeper designs at the federal and state levels).

(9.) See, e.g., Grundfest, supra note 4; Rose, supra note 5.

(10.) 131 S. Ct. 2541 (2011).

(11.) See infra Part IV (offering a case study in how to apply the gatekeeper idea to job discrimination regulation).

(12.) See, e.g., Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 GEO. WASH. L. REV. 449, 480 (2008) (examining "common law liability versus safety regulation" as the main institutional design dimension in the regulatory preemption debate). For an overview of regulatory preemption law and policy, see generally THOMAS O. MCGARITY, THE PREEMPTION WAR: WHEN FEDERAL BUREAUCRACIES TRUMP LOCAL JURIES (2008). For recent Supreme Court decisions, see Brueswitz v. Wyeth, 131 S. Ct. 1068 (2011); Wyeth v. Levine, 555 U.S. 555 (2009); Riegel v. Medtronic, Inc., 552 U.S. 312 (2008); and Geier v. Am. Honda Motor Co., 529 U.S. 861, 881 (2000). For an older debate about the "regulatory compliance" defense in tort law that takes a similarly binary agency-or-courts tack, compare Peter Huber, Safety and the Second Best: The Hazards of Public Risk Management in the Courts, 85 COLUM. L. REV. 277 (1985), which advocates ex ante administrative regulation as the primary and even exclusive approach to regulating certain risks, with Clayton P. Gillette & James E. Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027 (1990), which advocates an ex post court- and litigation-centered approach to regulating those same risks.

(13.) For a study pushing past analysis of regulatory preemption as a stark institutional choice, see Peter H. Schuck, FDA Preemption of State Tort Law in Drug Regulation: Finding the Sweet Spot, 13 ROGERWILLIAMS U. L. REV. 73 (2008).

(14.) See infra notes 84-93 and accompanying text.

(15.) Classic contributions include Gary S. Becker & George J. Stigler, Law Enforcement, Malfeasance and Compensation of Enforcers, 3 J. LEGAL STUD. 1 (1974); William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. 1 (1975); and A. Mitchell Polinsky, Private Versus Public Enforcement of Fines, 9 J. LEGAL STUD. 105, 120-21 (1980).

(16.) For further discussion, see infra notes 37-40 and accompanying text.

(17.) A number of legal scholars have remarked on the evolution of multienforcer regimes and begun to explore the legal and political forces that have fueled their rise. For a sampling, see BURKE, supra note 1; FARHANG, supra note 1; Howard M. Erichson, Coattail Class Actions: Reflections on Microsoft, Tobacco, and the Mixing of Public and Private Lawyering in Mass Litigation, 34 U.C. DAVIS L. REV. I (2000); Margaret H. Lemos, Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 HARV. L. REV. 486 (2012) [hereinafter Lemos, Aggregate Litigation] ; Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U.L. REV. 698 (2011) [hereinafter Lemos, State Enforcement]; Reza Rajabiun, Private Enforcement and Judicial Discretion in the Evolution of Antitrust in the United States, 8 J. COMPETITION L. & ECON. 187 (2012); and Amanda M. Rose, The Multienforcer Approach to Securities Fraud Deterrence: A Critical Analysis, 158 U. PA. L. REV. 2173 (2010).

(18.) See sources cited supra notes 4, 17. For an elegant argument challenging conventional distinctions between public and private enforcement, see Margaret H. Lemos & Max Minzner, For-Profit Public Enforcement, 127 HARV. L. REV. (forthcoming 2014). For rare efforts to construct formal models of public-private enforcer interactions, see Ben Depoorter & Jef De Mot, Whistle Blowing: An Economic Analysis of the False Claims Act, 14 SUP. CT. ECON. REV. 135, 145-51 (2006); and R. Preston McAfee et al., Private v. Public Antitrust Enforcement: A Strategic Analysis, 92 J. PUB. ECON. 1863, 1866-68 (2008).

(19.) For research exploring how the EEOC has worked with outside litigants to achieve regulatory goals, see Robert C. Lieberman, Private Power and American Bureaucracy: The EEOC and Civil Rights Enforcement (Mar. 18, 2005) (American Political Development Colloquium, Miller Center of Public Affairs, University of Virginia),

(20.) See, e.g., REGULATION BY LITIGATION (Andrew P. Morriss et al. eds., 2009) ; W. Kip Viscusi, Overview, in REGULATION THROUGH LITIGATION 1 (W. Kip Viscusi ed., 2002).

(21.) See Adam S. Zimmerman, Distributing Justice, 86 N.Y.U.L. KEV. 500, 542-43 (2011); see also Lemos & Minzner, supra note 18 (manuscript at 8) (noting the "growing recognition that public enforcement often serves a function traditionally associated with private litigation: compensating victims").


(23.) Partial exceptions include J. Maria Glover, The Structural Role of Private Enforcement Mechanisms in Public Law, 53 WM. & MARY L. REV. 1137 (2012); Samuel Issacharoff, Regulating After the Fact, 56 DEPAUL L. REV. 375 (2007); Reza Rajabiun, Private Enforcement of Law, in CRIMINAL LAW AND ECONOMICS, supra note 6, at 60; and Stephenson, supra note 4.

(24.) See generally BURKE, supra note 1 (examining American policies that encourage litigation as a method of dispute resolution, and the ensuing backlash against litigation).

(25.) As just one example, state-level job discrimination regulation prior to Title VII of the Civil Rights Act of 1964-one of several present-day regulatory regimes most closely identified with private, court-centered enforcement-was an administrative regime in which agencies conducted investigations, held hearings, and issued injunctive orders. See David Freeman Engstrom, The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972, 63 STAN. L. REV. 1071, 1073-74, 1081-82 (2011).

(26.) Figure 1'S data come from ADMIN. OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS tbl.C-2 (2012) ("U.S. District Courts-Civil Cases Commenced, by Basis of Jurisdiction and Nature of Suit") for each year, excluding deportation and prisoner petition cases. Thanks to Sean Farhang for sharing data up to 2005.

(27.) Id.

(28.) For example, federal antitrust regulation began in the late nineteenth century as a private enforcement regime with broad interpretive authority firmly lodged in federal courts. See Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405, 461-69 (2008).

(29.) There are no reliable estimates of trends in agency adjudications in recent decades, at least in part because of the sprawling nature of the federal administrative state. However, it seems likely that total in-house enforcement actions have increased. As just one set of data points, the number of enforcement actions ("administrative penalty order complaints") brought by the EPA increased by roughly two thirds between 1991 and 2021. See National Enforcement Trends 2 (Oct. 2011),

(30.) Compare WALTER K. OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT (1991) (claiming a marked shift in the quantity and character of litigation in the post-war period), with Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Cliches Eroding Our Day in Court and .Jury Trial Commitments?, 78 N.Y.U.L. REV. 982, 985-95 (2003) (noting an intense debate around claims about a "litigation explosion" but reviewing evidence that such claims are exaggerated); NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 2001: A NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT 26 (Brian J. Ostrom, Neal B. Kauder & Robert C. LaFountain eds., 2001), (examining statistics derived from multiple states and concluding that overall tort filings were stable from 1985 to 2000 and actually declined from 1991 to 2000).

(31.) See Viscusi, supra note 20, at 1 (noting that not all lawsuits are the same in scale and impact).

(32.) Scholarly explanations for private enforcement's growth as a regulatory tool variously point to American political culture; increasingly dense legislative and regulatory mandates; the rise of rent-seeking plaintiffs' lawyers and public interest groups distrustful of bureaucracy; a legislative desire to shift regulatory costs from public/on-budget to private/off-budget sources; and legislative efforts to end-run an uncooperative executive branch during divided government. See generally Sean Farhang, Public Regulation and Private Lawsuits in the American Separation of Powers System, 52 AM. J. POL. SCI. 821, 823-28 (2008) (reviewing the debate and collecting signal contributions to the literature).

(33.) See supra note 17.

(34.) See generally Glover, supra note 23, at 1145-60 (discussing the rise and functions of private enforcement); Stephenson, supra note 4, at 107-13 (reviewing the advantages of private enforcement).

(35.) See FARHANG, supra note 1, at 20 ("Lawsuits provide a form of auto-pilot enforcement that will be difficult for bureaucrats or future legislative coalitions to subvert.... "); John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter Is Not Working, 42 MD. L. KEY. 215, 227 (1983) (arguing that private enforcement "performs an important failsafe function by ensuring that legal norms are not wholly dependent on the current attitudes of public enforcers"); Kichard B. Stewart, Crisis in Tort Law? The Institutional Perspective, 54 U. CHI. L. REV. 184, 198 (1987) (noting that private enforcement "frees individuals from total dependence on collective bureaucratic remedies," and "provides a back-up guarantee of redress").

(36.) See Stephenson, supra note 4, at 114-20 (reviewing the disadvantages of private enforcement).

(37.) See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169, 200 (1968) (offering the classic account of optimal deterrence in which sanctions are set equal to the net social cost of undesirable conduct divided by the probability of successful prosecution, such that a wrongdoer internalizes the full social cost of her action).

(38.) See Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System, 26 J. LEGAL STUD. 575 (1997); see also Wendy Naysnerski & Tom Tietenberg, Private Enforcement of Federal Environmental Law, 68 LAND ECON. 28, 47 (1992) ("Private litigation priorities are established on the basis of private costs and benefits, not social costs and benefits.").

(39.) See Janet Cooper Alexander, Do the Merits Matter? A Study of Settlement in Securities Class Actions, 43 STAN. L. REV. 497 (1991) (describing the problem of "strike" suits in securities regulation); Lucian Arye Bebchuk, Suing Solely to Extract a Settlement Offer, 17 J. LEGAL STUD. 437 (1988) (offering a general theory of litigation costs and settlement behavior).

(40.) Another standard claim made on public enforcement's behalf is that public enforcers can economize on enforcement costs by imposing maximally high sanctions on relatively few violators and exercising discretionary nonenforcement as to the rest, thus achieving desired deterrence at the least possible cost. By contrast, upping the payouts available to private enforcers in an effort to economize on enforcement costs induces ever greater private investment in enforcement as profit-motivated private enforcers pour resources into litigation efforts. See Becket & Stigler, supra note 15, at 13-16; Landes & Posner, supra note 15, at 9. As with other parts of the zealousness critique of private enforcement, this critique is true as far as it goes. But two problems limit its force. First, it is not always true that maximal sanctions are socially efficient, thus narrowing public enforcement's advantage. See A. Mitchell Polinsky & Steven Shavell, The Optimal Tradeoff Between the Probability and Magnitude of Fines, 69 AM. ECON. REV. 880 (1979) (complicating the analysis by noting that maximal sanctions promote efficiency only where regulatory targets are risk neutral). Second, and more important, there are real-world political and legal constraints on the assessment of maximal damages. See Philip Morris USA v. Williams, 549 U.S. 346 (2007) (holding that excessive damages multipliers violated the Due Process Clause); Mats Persson & Claes-Henric Siven, The Becker Paradox and Type I Versus Type II Errors in the Economics of Crime, 48 INT'L ECON. KEY. 211 (2007) (noting political constraints on imposing large sanctions).

(41.) See Polinsky, supra note 15, at 120.

(42.) See A. Mitchell Polinsky & Steven Shavell, Public Enforcement of Law, in 3 ENCYCLOPEDIA OF LAW AND ECONOMICS: CRIMINAL LAW AND ECONOMICS 1 (Nuno Garoupa ed., 2d ed. 2009); see also Glover, supra note 23, at 1179-80 (noting the potential informational advantages of public enforcers); Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. LEGAL STUD. 357, 369 (1984) (same).

(43.) See Bucy, supra note 5, at 5 ("Private justice can supply the resource of inside information."); Coffee, supra note 35, at 226 (" [P]rivate enforcement may be able to mobilize and reallocate its resources more quickly than the public enforcer .... "); Mark A. Cohen & Paul H. Rubin, Private Enforcement of Public Policy, 3 YALE J. ON REG. 167, 168 (1985) ("[P]rivate firms are generally more efficiently operated than public agencies."); Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 HARV. L. REV. 1193, 1298 (1982) (noting that centralized public agencies often suffer from "diseconomies of scale, given multiple layers of decision and review").

(44.) Note that there are ways to induce private actors to surface information about misconduct short of vesting those actors with a private right of action. In the securities and tax context, for instance, Congress has created what we might call "pure bounty" regimes in which private individuals receive a cash bounty for information that leads to a successful public enforcement action but enjoy no independent enforcement authority. See David Freeman Engstrom, Whither Whistleblowing?, 15 THEORETICAL INQUIRIES L. (forthcoming 2014) (comparing these two types of regimes).

(45.) For instance, public enforcement's alleged efficiency advantages depend on the exercise of prosecutorial discretion. Yet selective enforcement also creates incentives for bribery-or, short of that, agency capture. I return to capture theory and its implications for agency gatekeeping infra Subsection III.B.2.

(46.) See David Freeman Engstrom, Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, 112 COLUM. L. REV. 1244, 1256 (2012).

(47.) See McAfee et al., supra note 18, at 1864 (noting private enforcers' incentives "to use the laws to win in the courts what they were unable to win in honest competition with their rivals").

(48.) See Naysnerski & Tietenberg, supra note 38, at 42 ("Civil sanctions have a serious defect when the assets of the firm are limited relative to its obligations."); Polinsky, supra note 15, at 113-14 (noting the superiority of public enforcement where defendants have insufficient wealth to compensate private enforcers for their effort).

(49.) See Rajabiun, supra note 17, at 202 (noting that "risk-averse plaintiffs" might be "reluctant to file cases against resourceful enterprises").

(50.) This may occur where private enforcers will suffer high psycho-emotional costs from taking action (e.g., where an organizational insider must decide whether to blow the whistle on colleagues or otherwise engage in "organizational dissent"). See Engstrom, supra note 46, at 1295; see also James D. Cox & Randall S. Thomas, SEC Enforcement Heuristics: An Empirical Inquiry, 53 DUKE L.J. 737, 743-44 (2003) (noting scaling issues in the securities context); Orly Lobel, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations, 97 CALIF. L. REV. 433 (2009) (noting the problem of organizational dissent); Polinsky, supra note 15, at 119-20 (modeling scaling problems).

(51.) See Engstrom, supra note 46 (noting examples from the FCA, Private Securities Litigation Reform Act (PSLRA), and antitrust contexts).

(52.) See, e.g., William E. Kovacic, The Civil False Claims Act as a Deterrent to Participation in Government Procurement Markets, 6 SUP. CT. ECON. REV. 201, 237 (1998) (advocating delimiting "categories of conduct that qui tam relators can attack").

(53.) See McAfee et al., supra note 18, at 1865, 1872 (noting the higher informational demands of optimizing private enforcement).

(54.) In the latter case, this might mean multiple enforcers chasing the same government-provided bounty (where government deputizes private enforcers to collect fines for it) or multiple plaintiffs seeking compensation for the same injuries via separate lawsuits. Note that some scholars remain skeptical about the volume and effect of private-on-public piggyback actions. See, e.g., Mafia Correia & Michael Klausner, Are Securities Class Actions "Supplemental" to SEC Enforcement? An Empirical Analysis (Univ. of Cal. Law & Econ. Workshop, 2012) (finding only weak evidence that piggybacking is a problem).

(55.) See Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1221, 1117 (1990) (defining regulatory "coherence" as a statutory scheme that "reflect[s] a unitary vision" rather than merely an absence of contradictory rules); Mark Seidenfeld & Janna Satz Nugent, "The Friendship of the People": Citizen Participation in Environmental Enforcement, 73 GEO. WASH. L. REV. 269, 293-96 (2005) (laying out cooperative-relationship concerns); Stephenson, supra note 4, at 117-18 (same).

(56.) More generally, the central preoccupation of litigation scholars in recent decades--how best to achieve consent and closure in aggregated and consolidated proceedings--is at bottom a coordination problem. See Richard A. Nagareda, Embedded Aggregation in Civil Litigation, 95 CORNELL L. REV. 1105, 1106 (2010) (noting the need for a "centralizing mechanism" beyond the class action device to solve problems of consent and closure in aggregated and consolidated proceedings).

(57.) The FCA provides examples of both types of provisions. See 31 U.S.C. [section] 3730(b)(5) (2006) ("When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.");/d. [section] 3730(e)(3) ("In no event may a person bring an action ... which is based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the Government is already a party.").

(58.) See supra text accompanying note 52.

(59.) See Engstrom, supra note 46, at 1283-84.

(60.) See, e.g., Coffee, supra note 35, at 225 & n.21; Erichson, supra note 17, at 41-43; Rose, supra note 5, at 1356; Stephenson, supra note 4, at 127-28. For a classic case illustrating some of the complexities of the piggybacking phenomenon in the securities context, see Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979).

(61.) See Coffee, supra note 35, at 225 ("[A]lthough some have characterized such 'tag along' private enforcement actions as 'parasitic,' it may be more accurate to describe the relationship between public and private enforcer as symbiotic." (footnote omitted)).

(62.) See David Freeman Engstrom, Public Regulation of Private Enforcement: Empirical Analysis of DOJ Oversight of Oui Tam Litigation Under the False Claims Act, 107 Nw. U. L. REX'. 1689, 1699 (2013) (noting the efficiency costs of the "adversarial asymmetries" resulting from this phenomenon); see also John Fabian Witt, Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of the Tort System, 56 DEPAUL L. REV. 261, 280 (2006) (describing this "queuing" dynamic).

(63.) See Engstrom, supra note 62, at 1699.

(64.) See Margaret H. Lemos, Special Incentives to Sue, 95 MINN. L. REV. 782, 823 (2010) (noting the risk of judicial "backlash" against private enforcement of federal statutes if too many marginal cases are brought).

(65.) See Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & Soc'Y REV. 95, 100 (1974) (discussing repeat players "play[ing] for rules").

(66.) See, e.g., Bucy, supra note 5, at 66 ("[I]ncompetent, overworked, or inexperienced private counsel, whose interests may diverge from the public interest, may be generating case precedent that restricts government regulators.").

(67.) Examples include: (i) the qui tam provisions of the FCA, 31 U.S.C. [section][section] 3730, 3733 (2006), whereby private enforcers pocket a portion of any money returned to the federal treasury; (ii) California's Labor Code Private Attorneys General Act, which permits private litigants to receive twenty-five percent of civil penalties for labor violations, CAL. LAB. CODE [section] 2699(i) (Deering 2013); and (iii) California's Proposition 65, which authorizes payment of a portion of penalties imposed in actions for failure to label dangerous chemicals, CAL. HEALTH & SAFETY CODE [section] 25192(a) (West 2012).

(68.) See Landes & Posner, supra note 15, at 27 n.54; Polinsky, supra note 15, at 123.

(69.) See, e.g., Searcy v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 160 (5th Cir. 1997) (noting the "danger that a relator [in a qui tam action asserting contractor fraud on the government] can boost the value of settlement by bargaining away claims on behalf of the United States").

(70.) See David Freeman Engstrom, Private Enforcement's Pathways: Lessons from Qui Tam Litigation (Apr. 10, 2013) (unpublished manuscript) (on file with author); see also Park, supra note 4, at 159 (noting the general view that entrepreneurial private enforcers are more likely than public enforcers to "invest resources in pursuing innovative theories of wrongdoing"). A similar assumption that profit-motivated private litigants generate a "demand" for the production of legal rules underpins the older debate over the efficiency of the common law. See, e.g., Paul H. Rubin, Why Is the Common Law E Efficient?, 6 J. LEGAL STUD. 51 (2977) (offering the seminal theory of legal change in these terms).

(71.) See Stephenson, supra note 4, at 119 (noting that private enforcers are not "subject to electoral discipline"); Stewart & Sunstein, supra note 43, at 1292 (arguing that private enforcement can "undermin[e] the advantages of political accountability ... that administrative regulation was designed to provide").

(72.) More concretely, a legislature might choose private over public enforcement based on its determination that deputizing private enforcers to enforce legal mandates will yield less overall drift over time than a purely public enforcement regime, particularly where the executive branch--and, thus, the relevant administrative agency or prosecutor's office--is controlled by an opposing political party. It follows that rational legislators might choose private enforcement as a way to achieve greater overall legislative fidelity than might obtain if enforcement were left in purely public hands and also greater overall "stability" of legal norms. See, e.g., FARHANC, supra note 17 (noting that a leading explanation for private enforcement's rise as a regulatory tool in recent decades is a legislative desire to insulate enforcement efforts from political control, particularly where ideologically different public enforcers cannot be trusted to faithfully implement the statute); Coffee, supra note 35, at 227 (listing "stability of legal norms" as a benefit of private enforcement); Lemos, State Enforcement, supra note 17, at 707 (indicating that private enforcers cannot be "captured by industry or controlled by politicians" and hence function "as a failsafe mechanism by reducing the risk that entire classes of violations will go unremedied'); cf. Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 HARV. L. REV. 1035 (2006) (modeling the legislative choice between agencies and courts--and, implicitly, the choice between public and private enforcement--as a tradeoff between the greater temporal stability of court adjudication and the greater cross-issue stability of agency adjudication).

(73.) Here, policing private enforcement efforts would resemble the standard separation-of-powers model in administrative law in which the House, Senate, and President, each with their own veto point, can nonetheless coordinate to keep agency action within certain bounds. See, e.g., William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 536-38 (1992).

(74.) See, e.g., Frederick Schauer & Richard Zeckhauser, The Trouble with Cases, in REGULATION VERSUS LITIGATION: PERSPECTIVES FROM ECONOMICS AND LAW 45, 47 (Daniel P. Kessler ed., 2011) ("[T]he policy that emerges from litigation [will] be systematically based on an imperfect picture of the terrain that the policy is designed to regulate.").

(75.) As an example, securities plaintiffs' efforts to extend class action liability to secondary "aiders and abettors" of fraud were thwarted, see Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008), but not before several defendants had inked multi-billion dollar settlements, see In re Enron Corp. Sec., 2008 WL 4178152, at *10-11 (S.D. Tex. Sept. 8, 2008).

(76.) See Engstrom, supra note 70 (manuscript at 6-7) (laying out this theory) ; see also Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 STAN. L. REV. 627, 640-41 (2002) (reviewing the reasons that legislators leave interpretive gaps); Donald C. Langevoort & Robert B. Thompson, "Publicness" in Contemporary Securities Regulation After the JOBS Act, 101 GEO. L.J. 337, 342 (2023) (noting the tendency of private enforcers to fill "unregulated ... space" before the SEC can meaningfully respond); Naysnerski & Tietenberg, supra note 38, at 43 (noting that "[s]uccessful ... suits ultimately undermine the very reason for their existence").

(77.) See Engstrom, supra note 70 (manuscript at 7, 16).

(78.) See, e.g., Kevin M. Stack, Interpreting Regulations, 111 MICH. L. REV. 355, 355 (2012) ("The age of statutes has given way to an era of regulations....").

(79.) See Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 106 (1998) (discussing how administrative procedures facilitate agency accountability).

(80.) The thinking here draws from the political science literature on policy durability and retrenchment. See PAUL PIERSON, DISMANTLING THE WELFARE STATE? REAGAN, THATCHER, AND THE POLITICS OF RETRENCHMENT 40 (1994) (noting the difficulty of obtaining retrenchment created when beneficiaries "mobilize in favor of programmatic maintenance or expansion"); Eric M. Patashnik, Why Some Reforms Last and Others Collapse: The Tax Reform Act of 1986 Versus Airline Deregulation, in LIVING LEGISLATION: DURABILITY, CHANGE, AND THE POLITICS OF AMERICAN LAWMAKING 146, 151 (Jeffery A. Jenkins & Eric M. Patashnik eds., 2012) (noting how policy enactments can alter the interest group environment in ways that make policy repeal unlikely).

(81.) See Sean Farhang, Litigation and Reform, in THE POLITICS OF MAJOR POLICY REFORM IN POSTWAR AMERICA (Jeffrey A. Jenkins & Sidney M. Milkis eds., forthcoming) ("As private enforcement regimes have diffused across the American regulatory state, the interests formed around them have become more widely spread and deeply rooted, increasing the political capacity of the coalition to defend the private enforcement infrastructure from retrenchment.").

(82.) See Engstrom, supra note 70 (manuscript at 24); see also Lauren B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law, 97 AM. J. Soc. 1531, 1531-35 (1992) (offering a classic account of the organizational response to civil rights enforcement).

(83.) See generally PAUL PIERSON, POLITICS IN TIME: HISTORY, INSTITUTIONS, AND SOCIAL ANALYSIS (2004) (advancing a theory of the temporal dimensions of political processes, including path dependency and feedback effects).

(84.) Engstrom, supra note 46, at 1254-55.

(85.) See F. Patrick Hubbard, The Nature and Impact of the "Tort Reform" Movement, 35 HOFSTRA L. REV. 437, 483-524 (2006) (providing an overview of state tort reform efforts).

(86.) For example, the PSLRA responded to concern about securities "strike" suits by, among other things, raising the pleading standard, 15 U.S.C. [section] 78u-4(b)(1)-(2) (2012), and eliminating joint and several liability unless "the trier of fact specifically determines that such covered person knowingly committed a violation of the securities laws," id. [section][section] 77k(f), 78u-4(f). See also Samuel Issacharoff, Regulating After the Fact, 56 DEPAUL L. REV. 375, 386 (2007) (cataloguing federal anti-litigation legislation).

(87.) See Engstrom, supra note 46, at 1297-98 (demonstrating how the FCA and federal securities and antitrust law shape the eligible pool of private enforcers).

(88.) See Miller, supra note 30, at 1013-15 (recounting repeated overhauls of Rule 26 to effect "greater judicial control over the discovery process"); see also Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374 (1982) (offering the classic account of "managerial judging").

(89.) Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

(90.) Ashcroft v. Iqbal, 556 U.S. 662 (2009).

(91.) The Prison Litigation Reform Act (PLRA), compelling pre-docketing review of claims for legal sufficiency, offers a legislatively specified example. 28 U.S.C. [section] 1915A(a) (2006). On controversy relating to Twombly and Iqbal, see David Freeman Engstrom, The Twiqbal Puzzle and Empirical Study of Civil Procedure, 65 STAN. L. REV. 1203 (2013).

(92.) See Resnik, supra note 88, at 380 (expressing skepticism that managerial judging reduces litigation costs).

(93.) See, e.g., Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. PA. L. REV. 517, 519-20 (2010) (speculating that Twombly's heightened pleading standard has disproportionately impacted plaintiffs in civil rights cases).

(94.) See, e.g., Lucinda M. Finley, The Hidden Victims of Tort Reform: Women, Children, and the Elderly, 53 EMORY L.J. 1263, 1313 (2004) (claiming that tort reforms disadvantage plaintiffs without labor force attachment, including women, children, and the elderly).

(95.) See, e.g., Daniel Kessler & Mark McClellan, Do Doctors Practice Defensive Medicine?, 111 Q.J. ECON. 353, 354-55 (1996) (exploring the connection between tort liability and health care COSTS).

(96.) Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. ILL. L. REV. 183, 185-86.

(97.) See, e.g., Stephen J. Choi, Do the Merits Matter Less After the Private Securities Litigation Reform Act?, 23 J.L. ECON. & ORG. 598, 598 (2006) (finding that a substantial number of non-nuisance cases lacking pre-filing indicia of fraud would not have been brought post-PSLRA); Steven C. Salop & Lawrence J. White, Treble Damages Reform: Implications of the Georgetown Project, 55 ANTITRUST L.J. 73, 88 (1986) (noting that "detrebling" damages under federal antitrust law "could deter the desirable cases as well").

(98.) See FED. R. APP. P. 29(a) ("The United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court.") ; FED. R. CIV. P. 24(b) (2)(A) (granting permissive intervention authority to a "federal or state governmental officer or agency" where a claim or defense at issue "is based on ... a statute ... administered by the officer or agency"). See generally Arthur F. Greenbaum, Government Participation in Private Litigation, 21 ARIZ. ST. L.J. 853, 882-983 (1989) (cataloguing governmental "forms of participation" in civil litigation).

(99.) For the uninitiated, the FCA prohibits submission of false money claims to the government in connection with federal programs or expenditures, and its qui tam provisions authorize private individuals, dubbed "relators," to sue for fraud on behalf of the United States and earn a "bounty" equal to a portion of any money returned to the federal fisc. See 31 U.S.C. [section] [section] 3729-3733 (2006).


(101.) See, e.g., Grundfest, supra note 4, at 966 ("The decision would instead reallocate enforcement authority so that private rights of action would not necessarily reach as far as the Commission's own enforcement authority.").

(102.) See Sharkey, supra note 22.

(103.) See Grundfest, supra note 4.

(104.) See Kovacic, supra note 52, at 237. For a trans-substantive version of the argument, see Stephenson, supra note 4.

(105.) 42 U.S.C. [section] 2000e-5(f)(1)(2006).

(106.) The strong majority position among circuit courts is that EEOC cause determinations are admissible, either as a per se matter or on a case-by-case basis applying the balancing test set forth in FED. R. EVID. 403. See, e.g., Smith v. Mass. Inst. of Tech., 877 F.2d 1106, 1113 (1st Cir. 1989) (rejecting a per se rule regarding the admissibility of EEOC investigative materials in favor of a case-by-case approach); Plummer v. W. Int'l Hotels Co., 656 F.2d 502 (9th Cir. 1981) (establishing a per se admissibility rule).

(107.) For a brief overview of the FCA, see supra note 99.

(108.) 31 U.S.C. [section] 3730(c)(2)(B) (2006) ("The Government may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances."). Most courts interpret this language to require that the DOJ show only a "rational relation" between the dismissal grounds and a government purpose. See, e.g., United States ex tel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1998) (applying such a standard).

(109.) 31 U.S.C. [section] 3730(b)(1) (2006) ("The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.").

(110.) Id. [section] 3730(c)(1) ("If the Government proceeds with the action, it shall have the primary responsibility for prosecuting the action...."); id. [section] 3730(c)(2)(C) (authorizing courts to "impose limitations on [a relator's] participation" upon a government showing that "unrestricted participation during the course of the litigation ... would interfere with or unduly delay the Government's prosecution of the case").


(112.) See, e.g., Thomas B. Metzloff, Alternative Dispute Resolution Strategies in Medical Malpractice, 9 ALASKA L. REV. 429, 441-42 (1992).

(113.) See MELLO & KACHALIA, supra note 111, at 8 (noting that in several states a plaintiff whose claim has been found non-meritorious must "post a bond or in some other way provide an up-front payment that is forfeited to the defendant if the plaintiff does not prevail in the litigation").

(114.) See supra note 108.

(115.) See, e.g., Clean Air Act, 42 U.S.C. [section] 7604(b)(1) (2006); Clean Water Act, 33 U.S.C. 1365(b)(1) (2006); Resource Conservation and Recovery Act, 42 U.S.C. [section] 6972(b)(1) (2006); Comprehensive Environmental Response, Compensation, and Liability Act, id. [section] 9659(d)(2); Toxic Substances Control Act, 15 U.S.C. [section] 2619(b)(1) (2012). The sole major federal environmental statute that lacks a citizen suit provision is the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [section] 136 (2012). See Jeffrey G. Miller, Theme and Variations in Statutory Preclusions Against Successive Environmental Enforcement Actions by EPA and Citizens: Part One: Statutory Bars in Citizen Suit Provisions, 28 HARV. ENVTL. L. REV. 402, 426-20 & n.77 (2004) (cataloguing citizen suit provisions across federal environmental statutes).

(116.) The public agencies that the LCPAGA vests with gatekeeping powers include the California Labor & Workforce Development Agency and the California Division of Occupational Safety and Health. CAL. LAB. CODE S 2699(3)(a)(1), (b)(1) (West 2013).

(117.) Id. [section] 2699.3(a)(2)(B).

(118.) See supra note 110.

(119.) See 42 U.S.C. [section] 2000e-5(f)(1) (2006) (granting the EEOC the right to file a civil action within thirty days of a claimant's filing of a charge if the agency's conciliation efforts have failed).

(120.) Id. ("The person or persons aggrieved shall have the right to intervene in a civil action brought by the [EEOC]...."). An aggrieved person has a similar right of intervention in cases brought by the Attorney General against a government or government entity. Id.

(121.) See Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 326 (1980) ("Under [section] 706(f)(1), the aggrieved person may bring his own action at the expiration of the 180-day period of exclusive EEOC administrative jurisdiction if the agency has failed to move the case along to the party's satisfaction, has reached a determination not to sue, or has reached a conciliation or settlement agreement with the respondent that the party finds unsatisfactory.") (emphasis added). See generally Lemos, Aggregate Litigation, supra note 17, at 538 & n.240 (reviewing this and related case law).

(122.) See 29 U.S.C. [section] 626(c)(1) (2006) ("Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter."); EEOC v. Pan Am. World Airways, Inc., 622 F. Supp. 633, 641 (N.D. Cal. 1985) ("[U]nlike Title VII, the ADEA does not explicitly provide for intervention by private parties in litigation by the EEOC."). Note that nearly all courts to consider the issue hold that the ADEA's preclusion provision applies only to subsequently filed actions. Compare EEOC v. E. Airlines, Inc., 736 F.2d 635, 639-41 (11th Cir. 1984) (interpreting the word "bring" in section 626(c)(1) of the ADEA to preclude a private plaintiff's subsequent filing of suit but not a previously filed suit); Burns v. Equitable Life Assurance Soc'y, 696 F.2d 21, 23-24 (2d Cir. 1982) (same); Donovan v. Univ. of Tex. at El Paso, 643 F.2d 120l, 1207 (5th Cir. May 1981) (same); Dreith v. Nat'l Football League, 777 F. Supp. 832, 836 (D. Colo. 1991) (collecting cases and holding "that a private ADEA action is not extinguished by a later commenced EEOC action that asserts, in whole or in part, the private plaintiff's claims"), with Jones v. Janesville, 488 F. Supp. 795, 797 (W.D. Wis. 1980) (construing "bring" in the relevant ADEA provision to mean "bring or maintain," thus finding that even subsequently filed EEOC actions preclude earlier filed private actions). As a result, the EEOC can reliably exercise gatekeeper power and displace a private enforcer who would prefer to bring her own action only by filing a public enforcement action within the sixty-day waiting period the ADEA mandates between a would-be plaintiff's filing of a charge with the EEOC and her bringing a civil action in court. 29 U.S.C. [section] 626(d) (2006) (precluding a private civil action "until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]').

(123.) See 29 U.S.C. [section] 216(b) (2006) ("The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 217 of this title...."); see also EEOC v. Wackenhut Corp., 939 F.2d 241, 242 (5th Cir. 1991) ("The FLSA clearly states that when the government initiates suits on behalf of an employee, either for damages or for injunctive relief, the employee's right to subsequently bring suit to enforce the same rights shall be terminated.").

(124.) See, e.g., Clean Water Act, 33 U.S.C. [section] 1365(b)(1)(B) (2006) (granting "any person" intervention as a matter of right in a public enforcement action that has displaced a citizen suit plaintiff); see also supra note 115 (listing citizen suit provisions in other federal environmental statutes containing the same or similar language).

(125.) See Miller, supra note 115, at 465-69 (reviewing case law and noting strong judicial deference to prosecutorial decision-making and even a presumption of diligence in decisions interpreting statutory preclusion provisions). For a classic case in which the lower court found that the state enforcement proceeding was not sufficiently diligent to trigger the statutory preclusion provision, see Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 178 n.1 (2000) (noting a lower court finding that the citizen suit defendant and state enforcement agency had entered into a collusive civil action and settlement in order to trigger the Clean Water Act's preclusion provision). For an example of the wording of the diligent prosecution requirement in citizen suit provisions in various federal environmental statutes, see 33 U.S.C. [section] 1365(b)(1)(B) (2006) (barring private suit if the government "has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance"); see also supra note 115 (listing citizen suit provisions in other federal environmental statutes containing the same or similar language).

(126.) See supra notes 107-110 and accompanying text; see also 31 U.S.C. [section] 3730(c)(1) (2006) (noting that, when the government intervenes in a case, it "shall not be bound by an act of the person bringing the action").

(127.) 31 U.S.C. [section] 3730(c)(2)(C).

(128.) The preclusive effect of a government enforcement effort on a qui tam action is part statutory. See supra note 57 (noting FCA provisions jurisdictionally barring actions "based on the facts underlying the pending action" or "based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the Government is already a party"). Courts also apply standard res judicata principles to subsequent qui tam actions, barring claims that were or could have been brought in an earlier action. See, e.g., United States ex rel. Barajas v. Northrop Corp., 147 F.3d 905, 909-10 (9th Cir. 1998) (giving full res judicata effect to the dismissal of an intervened qui tam action in dismissing a subsequent qui tam action asserting a different fraud theory but involving the same invoices that were the subject of the earlier action). Finally, note that preclusion can operate in the other direction, binding the government to actions taken by a relator in an unintervened action. See, e.g., In re Schimmels, 127 F.3d 875, 884 (9th Cir. 1997) (giving full res judicata effect to a default judgment entered against the relator in an unintervened case).

(129.) See Stephenson, supra note 4, at 123-24 (drawing this distinction).

(130.) Thanks to my colleague George Fisher for introducing me to this French-versus-German-rule conceptualization.

(131.) See, e.g., J. Randy Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C.L. REV. 539, 638-40 (2000). Other scholarly proposals also advance a license approach. See, e.g., Gilles, supra note 5, at 1417 (advancing a gatekeeper proposal requiring DOJ approval in order to go forward with a civil rights suit).

(132.) For a representative state statute providing for the ad hoc formation of a medical malpractice screening panel, see MASS. GEN. LAWS ANN. ch. 231, [section] 60B (West 2013) (prescribing the creation of a tribunal consisting of a state trial judge, physician, and attorney). See generally Jean A. Macchiaroli, Medical Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, 58 GEO. WASH. L. REV. 181, 188-97 (1990) (cataloguing medical malpractice panel personnel provisions).

(133.) While Congress could specify thinner procedures than the APA prescribes, in no event could the procedural bundle fall below the due process floor established in Goldberg v. Kelly, 397 U.S. 254 (1970), and its progeny.

(134.) See infra notes 232-238 and accompanying text. As a final example, the above rubric does not capture provisions that, while not conferring gatekeeper powers themselves, are designed to facilitate agency gatekeeping action. For instance, the Class Action Fairness Act of 2005 requires that defendants to a class action within the statute's purview provide notice of any settlement to "relevant" federal and state officials within ten days of its filing in court, with the ostensible purpose of allowing government officials to challenge the settlement during a subsequent Rule 23(e) fairness hearing. 28 U.S.C. S 1715 (2006). See generally Catherine M. Sharkey, CAFA Settlement Notice Provision: Optimal Regulatory Policy?, 156 U. PA. L. REV. 1971 (2008) (discussing the provision's purposes and effects).

(135.) Notice here that my stylized model toggles between two distinct systemic values that an "ideal" gatekeeper agency vested with gatekeeper powers will maximize: social welfare and democratic legitimacy. Of course, where Congress's legislative mandate is itself welfare-maximizing, the two maximands will align in any agency gatekeeper decision delimiting, terminating, or steering private enforcement efforts. But where an agency oversees private enforcement efforts implementing a clearly drafted but socially inefficient law, the two maximands will necessarily diverge, generating conflict as to what constitutes the ideal gatekeeper-agency response. In what follows, I ignore the tensions that agency pursuit of both maximands will sometimes create. For now, it is sufficient to flag the tension and note that a legislature that vests an agency with gatekeeper powers might wish that agency to pursue one or the other maximand or a mix of the two.

(136.) In the securities context, a wholesale agency gatekeeper decision terminating all private enforcement efforts would, to use Grundfest's term, "disimply" some or all of the private rights of action that the Supreme Court implied from the Securities and Exchange Act in J.I. Case Co. v. Borak, 377 U.S. 426,432-35 (1964). See Grundfest, supra note 4, at 991 n.133.

(137.) Many commentators have noted that public and private enforcers have informally reached an equilibrium in this regard, with public enforcers taking the lead in some areas and private enforcers in others. See Tamar Frankel, Implied Rights of Action, 67 VA. L. REV. 553, 580 (1981) (noting that "the SEC has largely left the field to private enforcers ... in enforcement of proxy rules"); Rajabiun, supra note 17, at 187 (asserting that mixed enforcement regimes allow for specialization, with public antitrust enforcers tending to target monopolists and private enforcers tending to target anti-competitive contractual relations). Wholesale gatekeeper authority allows public enforcement agencies to formalize such understandings.

(138.) See Engstrom, supra note 46, at 1323-25 (noting some of the dynamics that govern private investment in enforcement capacity in private enforcement regimes).

(139.) See Rose, supra note 5, at 1355.

(140.) See Grundfest, supra note 4, at 1015. Of course, one might point out that a "phase-in" period can impose costs of its own where it prevents private enforcement actions that are later found to be socially beneficial. One answer here is that the concept of "transitional costs" presupposes that regulatory targets aim to comply with legal mandates in good-faith ways. If true, then enforcement of shifting legal mandates without a "phase-in" period will lead to costly over-deterrence by chilling productive behavior in the shadow of possible legal liability arising from legally ambiguous injunctions.

(141.) See supra Section I.B.

(142.) See supra notes 65-66 and accompanying text.

(143.) Cf. Barry Boyer & Errol Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws, 34 BUFF. L. REV. 833, 879 (1985) (proposing that the EPA "cede[] control over routine penalty actions to private enforcers, and concentrate[] its efforts on the novel, difficult and expensive areas of enforcement"); Naysnerski & Tietenberg, supra note 38, at 46 ("The very existence of private enforcement allows the public sector greater flexibility in targeting its limited enforcement resources."); Stephenson, supra note 4, at 109 (noting that agencies can "economize" on scarce resources by relying upon private enforcement where it makes sense to do so).

(144.) See supra note 62 and accompanying text.

(145.) See supra notes 48-50 and accompanying text.

(146.) See supra note 50 and accompanying text.

(147.) See supra notes 48-49 and accompanying text.

(148.) See generally Depoorter & De Mot, supra note 18 (describing a similar dynamic).

(149.) See supra note 68 and accompanying text.

(150.) See supra note 69 and accompanying text.

(151.) See generally NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY (1994) (arguing in favor of comparative forms of institutional analysis).

(152.) See Stephenson, supra note 4, at 126 (noting the importance of considering agency capacity "not in comparison to a hypothetical ideal decisionmaker, but in comparison to the primary institutional alternatives, Congress and the courts").

(153.) See id. at 129-43.

(154.) See supra note 74 and accompanying text (summarizing the view that judicial case processing necessarily lacks the synopticism necessary to form valid generalizations about policy benefits).

(155.) See Eric Shickler, Institutional Development of Congress, in THE LEGISLATIVE BRANCH 35, 37-41 (Paul J. Quirk & Sarah A. Binder eds., 2005) (noting the steady enhancement of legislatures' fact-finding and analytic capacities via the committee system).

(156.) Similar points have been made in the long literature on regulatory preemption. See sources cited supra note x2.

(157.) See Warren F. Schwartz & C. Frederick Beckner III, Toward a Theory of the "Meritorious Case": Legal Uncertainty as a Social Choice Problem, 6 GEO. MASON L. REV. 801, 803 (i998) (noting the "widely accepted" assumption in American legal culture that "It]he merit of a case varies systematically with the probability that it will succeed"). This conception of merit also tracks the foundational legal realist assumption, going back to at least Holmes, that a case in which a plaintiff prevails is by definition meritorious. See Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 462 (2897) (defining "the law" as "prophecies of what the courts will do in fact").

(158.) See Schwartz & Beckner, supra note i57, at 803 (noting the further assumption within legal culture that links a case's merit to whether it is "socially desirable that it be maintained"). Social welfare as a key metric in gauging case merit is also implicit in much of the law and economics literature on litigation behavior. See, e.g., Shavell, supra note 38 (noting the divergence between the private and the social incentive to litigate a case).

(159.) Of course, this third conception of merit is question-begging, for it assumes art externally constructed standard that can supply a "right" judgment of legality that may or may not deviate from what a judge or jury will provide. See Schwartz & Beckner, supra note 157, at 805. Here again, this conception of merit is implicit in much of the law and economics literature on litigation behavior, which frequently models the likelihood that an adjudicator will err in the plaintiff's or defendant's favor. See, e.g., Lucian Arye Bebchuk & Howard F. Chang, An Analysis of Fee Shifting Based on the Margin of Victory: On Frivolous Suits, Meritorious Suits, and the Role of Rule 12, 25 J. LEGAL STUD. 372, 374-75 (1996). For an illuminating discussion that partakes of the above conceptions of merit, but does so in an effort to define "frivolous" rather than "meritorious," see Robert G. Bone, Modeling Frivolous Suits, 245 U. PA. L. KEY. 529, 529-33 (1997).

(160.) For instance, a judge deciding a summary judgment motion under Rule 56 can be thought to be implementing a version of the first (probabilistic) conception of merit insofar as she asks whether a reasonable jury could find in the non-movant's favor. See FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (setting forth this standard). Similarly, a court deciding a motion to dismiss under Rule 12(b)(6) can be thought to be implementing the first (probabilistic) or second (welfarist) conception of merit, depending on one's understanding of what the Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), instruct trial judges to do. One view is that those decisions' installation of a "plausibility" pleading standard requires courts to gauge the likely factual sufficiency of the allegations and thus to apply a probability screen in deciding Rule 12(b)(6) motions to dismiss, despite the Court's own claim to the contrary. See Twombly, 550 U.S. at 556 ("Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement."); Jonah B. Gelbach, Note, Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery, 121 YALE L.J. 2270 (2012) (employing a probabilistic conception of the plausibility standard). Another view is that the Court's Twombly and Iqbal decisions instantiate the second (welfarist) conception of merit by requiring trial courts to weigh both the likelihood discovery will reveal inculpating facts and also the likely litigation and other costs that will be incurred in getting there. See Engstrom, supra note 91; Louis Kaplow, Multistage Adjudication, 126 HARV. L. REV. 1179, 1256-58 (2013). Finally, a court that decides a motion to dismiss under Rule 12(b)(6) by finding that the plaintiff has failed to state a valid legal claim even under the prior "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)-for instance, because the relevant statute does not apply extraterritorially-would clearly be implementing the third (legalistic) conception of merit.

(161.) See, e.g., Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 928 (2003) (asserting that "agencies are likely to be in a better position to decide whether departures from the text actually make sense" or "whether departures from the text will seriously diminish predictability or otherwise unsettle the statutory scheme"). That agencies possess greater technical expertise and privileged access to legislative purpose relative to courts is also a core tenet of the Chevron doctrine. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) (basing deference to agency interpretation of statutes on, among other factors, the fact that "the regulatory regime is technical and complex"); see also Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2101 (1990) (noting that Chevron's deference principle is rooted, at least in part, in assumptions about "the comparative advantages of the agency in administering complex statutes").

(162.) Legal scholars have long debated the comparative advantages of judicial versus administrative adjudicators in particular, and generalist versus specialist adjudicators more broadly, in interpreting statutes. See, e.g., RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 254-57 (1996) (focusing on whether generalist or specialist courts will be more faithful to the "current" or the "original goals of a statutory program"); Revesz, supra note 55, at 1117 (examining whether specialized courts can better "promote the coherence of a statutory scheme" or manage legal complexity). Comparatively few analyses, however, consider the comparative capacity of adjudicator types in performing the more pedestrian task of gauging a claim's factual sufficiency. A standard claim is that specialized/administrative adjudication may prove more accurate in highly technical areas because of superior experience and expertise. See, e.g., Hemphill, supra note 6, at 670-84 (making this claim in the antitrust context); Sunstein & Vermeule, supra note 161, at 927-28, 943 (making a more general version of the claim and expressing doubt whether generalist judges, with limited time and information, "can form even a plausible view of the relevant complexities" across a range of regulatory areas in adjudicating claims). Others, however, assert just the opposite, arguing that immersion and insularity can in fact render specialists' decisions inferior to generalists', and suggesting that a gatekeeper agency would be demonstrably worse than courts at gauging case merit or evaluating the factual sufficiency of claims. See, e.g., LAWRENCE BAUM, SPECIALIZING THE COURTS 31-34 (2011) (reviewing this debate). Nor has empirical work made much progress on the question, at least in part because of the impossibility of establishing an objective measure of case "merit." For instance, a recent empirical effort to gauge the relative decisional quality of agencies and courts in the antitrust context by comparing appellate reversal rates in cases adjudicated at the Federal Trade Commission and in federal district courts fails not just because the standard of appellate review is different as to the two types of decisions but also because the study, by using decisions of appellate-level judicial generalists as a baseline measure of merit, begs the question as to whether the adjudicatory capacities of generalist judges and expert administrators systematically vary. See Joshua D. Wright & Angela M. Diveley, Do Expert Agencies Outperform Generalist Judges? Some Preliminary Evidence from the Federal Trade Commission, 1 J. ANTITRUST ENFORCEMENT 82, 91-94 (2013). For analysis of the few empirical studies trained more narrowly on the merits-screening capacities of gatekeeper agencies, see infra notes 224-227 and accompanying text.

(163.) One commentator has taken a contrary position in a recent analysis, suggesting that vesting the SEC with gatekeeper powers would not be effective because "at the screening stage before discovery, the facts are undeveloped," and it is "unclear why the SEC would be much better in assessing cases at the pre-discovery stage than courts." Park, supra note 4, at 175. But this view seems founded on an unduly narrow conception of the agency gatekeeper role, as there is no reason why an agency armed with gatekeeper powers cannot use its various investigatory tools to flesh out the merits of a case before rendering a gatekeeper decision. To that extent, the comparative institutional analysis reduces, as noted above, to whether agencies or courts wield substantially more or less efficient or effective evidentiary tools or differ in their capacity to weigh evidence once collected.

(164.) See generally BAUM, supra note 162 (offering an overview of "specialized" courts within the American legal system).

(165.) This would also raise a host of further questions about how, precisely, agency decisions would differ from those of judges or juries. For further discussion of judge-jury dynamics, see infra note 182.

(166.) See JOSHUA D. ANGRIST & JORN-STEFFEN PISCHKE, MOSTLY HARMLESS ECONOMETRICS: AN EMPIRICIST'S COMPANION 227-43 (2009) (describing the "differences in differences" approach).

(167.) Id.

(168.) See Engstrom, supra note 91 (noting a similar difficulty in assessing the effect of the Supreme Court's Twombly and Iqbal decisions on motion-to-dismiss rates in light of dynamic litigant responses to the decisions).

(169.) See Engstrom, supra note 62, at 1737-38 (noting the difficulty of prying apart selection and treatment effects in measuring gatekeeper effects).

(170.) See MELLO & KACHALIA, supra note 111, at 8 ("No controlled studies have identified statistically significant effects on claim frequency or payouts, while 7 have found no association."); Frederick J. White III et al., Medical Malpractice Review Panels and Medical

Liability System Cost, Timeliness, and Efficiency: A Cross-Sectional Study, 5 J. EMPIRICAL LEGAL STUD. 375, 375 (2008) (evaluating the association "between the medical malpractice panel status of a state ... and measures of cost, timeliness, and efficiency of ... claims resolution for the year 2002").

(171.) See Roger Hanson et al., What Is the Role of State Doctrine in Understanding Tort Litigation?, 1 MICH. L. & POL'Y REV. 43, 70 tbl.5 (1996) (finding higher rates of litigation in states with screening panels); Stephen Shmanske & Tina Stevens, The Performance of Medical Malpractice Review Panels, 11 J. HEALTH POL. POL'Y &L. 525 (1986) (same); see also MELLO & KACHALIA, supra note 111, at 9 (noting studies showing longer time-to-resolution in panel states and speculating that this is a simple artifact of adding a step to the litigation process).

(172.) MELLO & KACHALA, supra note 111, at 8.

(173.) See, e.g., Hanson et al., supra note 171, at 71 ("Another possibility is that plaintiffs will use these panels as a low cost-yet effective-means to get a clear reading on the odds of winning."). Here, my analysis tracks the standard law and economics model of the decision to litigate as a calculation of the expected value, net of costs, of filing suit. See FARHANG, supra note 1, at 22 (summarizing this approach).

(174.) This is because a case's expected value is a function of both the amount in controversy and the probability of success. As a result, even cases with high probability (but low damages) may not have had positive expected value without the cost savings the panels provide.

(175.) Even the basic finding that panels are associated with higher litigation rates may be a nonstarter because of a causal direction problem: mandatory screening panels may not cause higher litigation rates so much as high litigation rates cause states to adopt mandatory screening panels. STRUVE, supra note 100, at 60.

(176.) See Laura Beth Nielsen et al., Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States, 7 J. EMPIRICAL LEGAL STUD. 175, 181, 184, 187, 191 (2010) (examining 1,600 suits across seven regionally diverse district courts during the period from 1988 to 2003 and finding that "EEOC priority codes and merit determinations have little explanatory effect" in terms of predicting the likelihood that a filed case will proceed to the next stage of litigation). For a full tour of the EEOC triage and charge processing system, see infra notes z58-261 and accompanying text.

(177.) Note that the study also found no association between formal EEOC "cause" findings and litigation outcomes. Nielsen et al., supra note 176, at 191. But this offers a less attractive empirical test of agency merits-screening capacity, as the agency's "cause" determination is disclosed to judge and jury in many jurisdictions, introducing substantial endogeneity into the analysis. A larger problem with both findings is that, by focusing on filed job discrimination cases, the study examined only a relatively small subset (roughly one-quarter during the study period) of charges that the EEOC had evaluated, whether at the initial triage stage or the "cause'-determination stage. As a result, we cannot draw clear inferences about the EEOC's merits-screening capacity because we cannot gauge the accuracy of its determinations in the full case population, including those that did and did not proceed to litigation. Still, the study does permit us to conclude that, during the 1988 to 2003 interval, EEOC gatekeeping via charge processing offered little merits-signaling value to courts adjudicating subsequently filed claims.

(178.) As noted previously, this raises substantial questions about how, precisely, EEOC staff decisions would differ from those of a judge or jury. For further discussion of judge-jury dynamics, see infra note 182.

(179.) See Engstrom, supra note 46, at 1272 n.93 (using a differences-in-differences approach that leverages a unique doctrinal change in the Ninth Circuit limiting the DOJ's power to veto relator-defendant settlements to establish that the DOJ has at least some merits-screening capacity).

(180.) Many qui tam cases, for instance, involve the Federal Acquisition Regulations, a byzantine set of rules regarding government contracting that currently runs to nearly 2,000 pages, or the equally voluminous and complex Medicare and Medicaid reimbursement regulations. See Federal Acquisition Regulations, 48 C.F.R. ch. 1 (2005); Medicare, CENTERS FOR MEDICARE & MEDICAID SERVICES, (last visited Oct. 3, 2013); see also Engstrom, supra note 46, at 1271 (showing the high prevalence of qui tam cases asserting health care fraud under Medicaid and Medicare programs). For two recent examples of qui tam suits predicated on FAR violations, see United States ex tel. Dyer v. Raytheon Co., No. 08-10831-DPW, 2013 VdL 5348571 (D. Mass. Sept. 13, 2013) (describing FCA claim based on FAR rules on incentive compensation within federal contracts); and United States v. Lockheed Martin Corp., 927 F. Supp. 2d 1338, 1344 (N.D. Ga. 2013) (noting relator claims regarding contractor billing systems predicated on FAR violations).

(181.) Similarly, and as I elaborate in Part IV infra, agencies may enjoy less of a comparative advantage in the job discrimination context, where the principal fact question is frequently a defendant's subjective intent.

(182.) By focusing narrowly on merits-screening capacity, the analysis has pushed past the standard problem of managerial control within agencies-a topic that fits more naturally with Subsection III.B.3's discussion of the ways bureaucratic behavioral tendencies can distort agency gatekeeper decisions. Moreover, and as alluded to at various points above, the analysis has mostly ducked the myriad ways judges, jurors, and bureaucrats are likely to vary in assessing case "merit," at least in part because such differences are likely to be highly context-specific. Future research focused on particular substantive regulatory areas can usefully engage with the likely proclivities and biases of each of these decision-makers in making fact determinations regarding negligence, market power, discriminatory or fraudulent intent, and the like. See, e.g., STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 35-37 (1993) (reviewing the literature on expert and lay perceptions of risk) ; W. Kip Viscusi, Jurors, Judges, and the Mistreatment of Risk by the Courts, 30 J. LEGAL STUD. 107 (2011) (using experimental design to explore judge and juror intuitions about risk).

(183.) See, e.g., Rose, supra note 5, at 1306 (discussing case termination as the sole gatekeeper task).

(184.) See supra notes 141-150 and accompanying text (cataloguing some possible uses of retail gatekeeper authority, including serial use of such authority to achieve many of the same ends as wholesale gatekeeper powers).

(185.) For recent and comprehensive treatments of the capture concept, see STEVEN P. CROLEY, REGULATION AND PUBLIC INTERESTS: THE POSSIBILITY OF GOOD REGULATORY GOVERNMENT 26-52 (2008); and PREVENTING REGULATORY CAPTURE: SPECIAL INTEREST INFLUENCE AND HOWTO LIMIT IT (Daniel Carpenter & David A. Moss eds., 2013).

(186.) See CROLEY, supra note 185, at 27. The classic accounts of the collective action problems and asymmetric stakes that underpin "capture" theory are MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965); and JAMES Q. WILSON, POLITICAL ORGANIZATIONS 332-37 (1973).

(187.) See Steven P. Croley, Public Interested Regulation, 28 FLA. ST. U. L. REV. 7, 7-8 (2000) (reviewing studies and finding little consistent support for capture theories); Mark Kelman, On Democracy-Bashing: A Skeptical Look at the Theoretical and "Empirical" Practice of the Public Choice Movement, 74 VA. L. REV. 199, 236-68 (1988) (offering an earlier canvass of existing studies and arriving at the same conclusion); see also Daniel Carpenter, Detecting and Measuring Capture, in PREVENTING REGULATORY CAPTURE, supra note 185, at 57, 67-68 (setting forth an agenda for how scholars might subject capture theories to better empirical testing). A further conceptual problem is that capture's regulatory valence is not always clear, frustrating firm predictions about its likely effects. The currently ascendant version of the theory holds that capture is deregulatory (or "corrosive") in favoring regulatory targets. See Daniel Carpenter, Corrosive Capture? The Dueling Forces of Autonomy and Industry Influence in FDA Pharmaceutical Regulation, in PREVENTING REGULATORY CAPTURE, supra note 185, at 152, 153-55. But in the gatekeeper context, the opposite might also be true: an increasingly well organized plaintiffs' bar might be every bit as capable of "capturing" an agency, particularly where a steadily turning "revolving door" moves lawyers between the agency and the ranks of private enforcers. See Engstrom, supra note 46, at 1257-62, 1285 n.149.

(188.) See DANIEL P. CARPENTER, THE FORGING OF BUREAUCRATIC AUTONOMY: REPUTATIONS, NETWORKS, AND POLICY INNOVATION IN EXECUTIVE AGENCIES, 1862-1928, at 25, 32-33 (2001) (noting how agencies can achieve autonomy by maneuvering among multiple principals or building coalitions with outside groups that cut across lines of political control).

(189.) See J.R. DeShazo & Jody Freeman, The Congressional Competition to Control Delegated Power, 81 TEX. L. REV. 1443, 1444 (2003) (noting that "committee members sometimes defy majority preferences rather than reinforce them"). But see KEITH KREHBIEL, PIVOTAL POLITICS: A THEORY OF U.S. LAWMAKING 191-200, 232-34 (1998) (exploring, but mostly rejecting, the notion that committee members have outlier policy preferences).

(190.) On the relative susceptibility of agencies and courts to capture, see M. Elizabeth Magill, Courts and Regulatory Capture, in PREVENTING REGULATORY CAPTURE, supra note 185, at 397, 408-10 (assessing whether lawsuits invoking judicial review of agency action are subject to the same resource, collective action, and other dynamics that lead to capture in the political sphere).

(191.) See KOMESAR, supra note 151, at 23. But see Thomas W. Merrill, Institutional Choice and Political Faith, 22 LAW & SOC. INQUIRY 959, 973-74 (1998) (critiquing this view).

(192.) For classic studies, see Terry M. Moe, Control and Feedback in Economic Regulation: The Case of the NLRB, 79 AM. POL. SCI. REV. 1094 (1985) ; and Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765, 792 (1983).

(193.) See Lisa Schultz Bressman & Robert B. Thompson, The Future of Agency Independence, 63 VAND. L. REV. 599, 611 (2010) (noting funding sources as a potential element of agency independence); see also Daniel P. Carpenter, Adaptive Signal Processing, Hierarchy, and Budgetary Control in Federal Regulation, 90 AM. POL. SCI. REV. 283, 284-87 (1996) (discussing more formal models of budgetary control of agencies); Michael M. Ting, The "Power of the Purse" and Its Implications for Bureaucratic Policy-Making, 106 PUB. CHOICE 243, 244-47 (2001) (same).

(194.) See Jonathan R. Macey, Organizational Design and Political Control of Administrative Agencies, 8 J.L. ECON. & ORG. 93, 99-l00, l04 (1992) (arguing that agencies are more vulnerable to capture where they regulate fewer interests).

(195.) See, e.g., Andrew B. Whifford, Decentralization and Political Control of the Bureaucracy, 14 J. THEORETICAL POE. 167, 173 (2002) (noting that political control of a bureaucracy turns heavily on its organizational structure).

(196.) See generally Aziz Z. Huq, Removal as a Political Question, 65 STAN. L. REV. 1 (2013) (reviewing the literature on appointment and removal as mechanisms of political control of the bureaucracy).

(197.) See Engstrom, supra note 46, at 1306-07 (finding that the DOJ is more likely to intervene in qui tam suits in which former DOJ attorneys are serving as plaintiff-relator's counsel, despite the fact that those same suits also produce lower average recoveries than suits brought by attorneys without a DOJ connection).

(198.) See Engstrom, supra note 62, at 1735 (finding that the DOJ is substantially less likely to use its power to intervene in cases brought against Fortune 100 companies or top defense contractors).

(199.) See id. at 1745 (reporting findings).

(200.) See id. at 1735; see also Rajabiun, supra note 23, at 81 ("Even without regulatory capture, economizing practices by public enforcers reveal the presence of incentives to divert resources to actions against firms less likely to be able to defend themselves.").

(201.) See Engstrom, supra note 62, at 1735.

(202.) Id.

(203.) See supra notes 192-196 and accompanying text. The finding that the DOJ is more likely to intervene in cases brought by former DOJ insiders is likewise subject to alternative explanations. One possibility is that former DOJ insiders are systematically more risk-averse than other counsel and so prefer cases that are smaller but more likely to generate a recovery.

(204.) See Engstrom, supra note 46, at 1287.

(205.) See generally ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957) (offering the seminal account of "rational ignorance" in public choice theory).

(206.) See Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printx, and Yeskey, 1998 SuP. CT. REV. 71, 117-18; see also Richard J. Pierce, Jr., Seven Ways to

(207.) See OLSON, supra note 186, at 51 (coining these terms).

(208.) See supra notes 192-203 and accompanying text.

(209.) This is often called the "self-aggrandizement" or "agency expansion" hypothesis. See WILLIAM A. NISKANEN JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT 38-42 (1971) (offering the classic account); see also Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915 (2005) (offering an updated and more skeptical view).

(210.) Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV. 1075, 1080 (1986) (noting the "excessively cautious" nature of regulators); see also Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1296-1300 (2006) (reviewing literature suggesting agencies will exhibit "excessive regulatory caution").

(211.) See supra text accompanying note 141.

(212.) See JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 161 (1989) (noting agencies' tendency to pursue certain observable bureaucratic outputs over others); Lemos & Minzner, supra note 18 (manuscript at 18) (asserting that "agencies seeking to build reputations as effective enforcers will tend to emphasize easily measurable accomplishments rather than more amorphous forms of success"). While this idea is intuitive, a sophisticated analogy can be found in the economics literature on "high-powered incentives." See, e.g., Daron Acemoglu, Michael Kremer & Atif Mian, Incentives in Markets, Firms, and Governments, 24 J.L. ECON. & ORG. 273 (2007) (theorizing that "high-powered incentives" linked to agent performance can generate "unproductive signaling effort" in certain cases).

(213.) On the enforcement strategies of private enforcers, see Nuno Garoupa & Daniel Klerman, Optimal Law Enforcement with a Rent-Seeking Government, 4 AM. L. & EcoN. KEY. 116 (2002); and Polinsky, supra note 15.

(214.) See Engstrom, supra note 62, at 1703.

(215.) See Frankel, supra note 6, at 113 ("[I]f success for the Enforcement division is measured by the number of cases, convictions, or settlements, incentives would lead [it] to avoid the large costly complicated cases and focus on the small ones.").

(216.) See Engstrom, supra note 62, at 1703.

(217.) Id.

(218.) Importantly, agency pursuit of an objective function other than maximizing social welfare will not just impose opportunity costs and waste scarce public enforcement resources. Self-aggrandizement distortions will also imperil the agency's ability to play an "anti-scaling" role. See supra tbl.3 and accompanying text. Recall here that one of the principal tasks an ideal agency wielding retail gatekeeper powers will perform is to induce private enforcers to come forward with certain claims, particularly low- and high-value ones, which may be socially optimal to prosecute but will not attract profit-oriented private enforcers without support from public enforcers. By committing to aid those claims, the agency can induce private enforcers to come forward who otherwise would not, thus plugging enforcement gaps left by the necessarily coarse calibration of payouts. Yet the possibility that a gatekeeper agency will strategically seek to maximize regulatory outputs other than social welfare creates a version of a hold-up problem. Because the gatekeeper agency cannot perfectly assure private enforcers it will not renege in the face of other opportunities, private enforcers rightly worried about being left holding the bag will not surface the claims in the first place. See Engstrom, supra note 62, at 1705-06; see also Depoorter & De Mot, supra note 18, at 152-53 (modeling this dynamic).

(219.) James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 378 (James Q. Wilson ed., 1980).

(220.) See, e.g., Dayna Bowen Matthew, The Moral Hazard Problem with Privatization of Public Enforcement: The Case of Pharmaceutical Fraud, 40 U. MICH. J.L. REFORM 281, 282 (2007) (framing the "effects that the availability of private enforcement have [sic] on the Government's incentives" as a moral hazard problem, and arguing that the availability of private enforcement "causes public prosecutors to reduce the care that typically controls their exercise of prosecutorial discretion" (emphasis omitted)). A useful analogy here is the "bailout effect" that legal scholars and political scientists have noted in the context of judicial review. See Justin Fox & Matthew C. Stephenson, Judicial Review as a Response to Political Posturing, 105 AM. POL. SCI. REV. 397, 397 (2011) (describing the "bailout effect" in the constitutional law context whereby "judicial review may rescue elected officials from the consequences of ill-advised policies"); see also MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 57-58 (1999) (arguing that "judicial overhang" can distort legislative behavior); ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 261 (2006) (offering a similar account that likens judicial review to an "insurance policy against erroneous legislative determinations," thus creating a moral hazard problem for legislative behavior). Still another analogy can be found in the concern that public regulators are systematically biased against the more tangible harms that flow from Type II errors (i.e., "false negatives" in the form of an erroneous conclusion that a dangerous product is safe) and in favor of less observable Type I errors (i.e., "false positives" in the form of an erroneous conclusion that a safe product is dangerous). For discussion, see MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND APPLICATIONS IN LAW 359 (2009).

(221.) Engstrom, supra note 62, at 1705.

(222.) See CARPENTER, supra note 188, at 21-22 (noting the unique power "mezzo level" managers wield in bureaucratic environments).

(223.) Engstrom, supra note 62, at 1705; see also Lemos & Minzner, supra note 18 (manuscript at 25-31) (reviewing the extensive literature on the individual-level incentives of enforcement agency personnel); Jonathan R. Macey & Geoffrey P. Miller, Reflections on Professional Responsibility in a Regulatory State, 63 GEO. WASH. L. REV. 1105, 1115-16 (1995) (noting "government attorneys' proclivity to ... engage in career-building"); McAfee et al., supra note 18, at 1872 ("[S]ome government actors are likely to be partly motivated by factors other than efficiency, including career concerns....").

(224.) See, e.g., Cox & Thomas, supra note 50, at 778 (arguing that the SEC may have "preferred weak opponents"); Jonathan R. Macey, The Distorting Incentives Facing the U.S. Securities and Exchange Commission, 33 HARV. J.L. & PUB. POL'Y 639, 646 (2010) ("The focus is on the number of cases brought by the Division, and, to a lesser extent, on the size of the fines collected by the SEC.... In light of this metric of success, it is not surprising that the SEC focuses on low-hanging fruit."); John C. Coffee, Jr., Is the SEC's Bark Worse than Its Bite?, NAT'L L.J., July 9, 2022 (noting the tendency of the SEC to pursue many relatively small actions, rather than focusing on a few big ones, in order to avoid the embarrassment of having any defendants "escape scot-free").

(225.) See Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing and Employment, 45 UCLA L. REV. 1401, 1444-45 (1998) (noting the tendency of civil rights prosecutors to bring relatively small and politically uncontroversial cases).

(226.) See Engstrom, supra note 62, at 1727.

(227.) Id. at 1717-18.

(228.) See, e.g., Rose, supra note 5, at 1306-07 (discussing case termination as the sole gatekeeper task).

(229.) See supra note 180 and accompanying text.

(230.) See Michael Rich, Prosecutorial Indiscretion: Encouraging the Department of Justice to Rein in Out-of-Control Qui Tam Litigation Under the Civil False Claims Act, 76 U. CIN. L. REV. 1233, 1275-76 (2008).

(231.) See David Kwok, Coordinated Private and Public Enforcement of Law: Deterrence Under Qui Tam 17-18 (Feb. 18, 2010) (unpublished manuscript) (on file with author).

(232.) A possible objection to the use of budget-based penalties as a constraint on gatekeeper agency action is that legislative oversight committees tend to exercise near-plenary control over agency budget flows, thus muting the mechanistic workings of fee shifts of the sort envisioned above. As a concrete example, the incentive-shaping effect of fee shifts will be particularly weak where the resulting hits to the agency's budget divert it away from tasks elsewhere within its regulatory bailiwick, creating cross-pressures on other, separate regulatory programs favored by legislative overseers. In such an instance, we might expect that the legislative committee will merely gross up the agency's budget to offset the budgetary shortfall created by the fee shifts. As a result, a mechanistic fee shift may not, in the end, prove any different from the usual agency appropriations process except where the agency is self- (or independently) funded. For examples of independent agency funding, see Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 TEX. L. REV. 15, 44 (2010).

(233.) See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U.L. REV. 461, 541-44 (2003) (describing the APA's notice-and-comment rulemaking procedures and their transparency benefits). The requirement that a gatekeeper agency provide a "reasoned accounting" of its decision would thus track the APA's requirement that parties to a proceeding receive a reasonable opportunity to submit proposed findings of fact and conclusions of law as well as an on-the-record accounting of the agency's ruling on each proposed finding or conclusion. See 5 U.S.C. S 557(c) (2012).

(234.) Rosenberg & Sullivan, supra note 6, at 166 (noting that procedural requirements can combat "self-serving" enforcement decisions and render the agency's "prosecutorial choices ... politically transparent and therefore more readily subject to monitoring and discipline").

(235.) Cf. DeShazo & Freeman, supra note 189, at 1444 (noting possibility that legislative committee preferences concerning oversight of administrative agencies will not map onto those of the legislative majority).

(236.) See supra notes 185-186 and accompanying text (noting various "bureaucratic pathologies" that extend from political control of bureaucracy). For a recent and innovative argument that increased transparency may exacerbate agency vulnerability to so-called "accountability pathologies," see Jacob E. Gersen & Matthew C. Stephenson, Accountability Pathologies in Public Law: Diagnosis and Treatment (Harvard Law Sch., Ctr. for Law, Econ. & Bus. Working Paper, 2013). For a more technical working out of similar ideas, see Justin Fox, Government Transparency and Policymaking, 131 PUB. CHOICE 23 (2007); and Andrea Prat, The Wrong Kind of Transparency, 95 AM. ECON. REV. 862 (2005).

(237.) As an example, the FCA provides that the private qui tam relator's bounty percentage is lower where the DOJ intervenes in and takes over control of the case and higher where the DOJ declines to become involved. 31 U.S.C. [section] 3730(d) (2006). For other examples of government control of bounties, see supra notes l07-109 and accompanying text.

(238.) See, e.g., Rose, supra note 5, at 1357 (noting that gatekeeper authority "might dissuade some private enforcers from participating in the system, thus reducing the amount of private resources available to supplement the [SEC's] enforcement efforts"). Still another example of an anti-capture device that imposes clear tradeoffs in the gatekeeper context is delegating gatekeeper authority to multiple agencies simultaneously, thus preventing any single interest group from controlling bureaucratic action. See Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 20l, 214 (describing the use of "overlapping jurisdiction" among regulatory agencies as an anti-capture device); A.C. Pritchard, The SEC at 70: Time for Retirement?, 80 NOTRE DAME L. REV. l073, l099-110l (2005) (advocating the transfer of agency enforcement duties to the executive branch as an anticapture device). Applied to the gatekeeper context, one could parcel out gatekeeper powers to a second agency, such as the DOJ, with a wider portfolio of regulatory responsibilities. Yet it is not hard to see that doing so risks diluting the expertise advantage gatekeeper agencies enjoy, potentially exacerbating competence concerns and, at the extreme, creating a gatekeeper regime that is little different from leaving adjudication to generalist courts in the first place.

(239.) See supra notes 170-175 and accompanying text.

(240.) For the main text of Title VII, see 42 U.S.C. [section][section] 2000e-1 to e-9 (2006). Cognate job discrimination laws include the Americans with Disabilities Act, id. [section][section] 12101-12213, the Pregnancy Discrimination Act, id. [section] 2000e(k), the Equal Pay Act, 29 U.S.C. [section] 206(d) (2006), and the Age Discrimination in Employment Act, id. [section][section] 621-634.

(241.) 131 S. Ct. 2541 (2011).

(242.) These charge and litigation numbers are drawn from Stephen B. Burbank et al., Private Enforcement of Statutory and Administrative Law in the United States (and Other Common Law Countries) 60-72 (Univ. Pa. Law Sch. Pub. Law & Legal Theory Research Paper No. 11-08, 2011),; Admin. Office of the U.S. Courts, Judicial Business of the United States Courts, U.S. COURTS 129 tbl.C-2A (2012), /uscourts/Statistics/JudicialBusiness/2011/JudicialBusiness2011.pdf ("U.S. District Courts-Civil Cases Commenced, by Nature of Suit, During the 12-Month Periods Ending September 30, 2007 Through 2011"); and Charge Statistics, FY 1997 Through FY 2012, EEOC, Notice that the purely public enforcement side of the regime has generally been inconsequential relative to the private enforcement side, as the EEOC generally initiates (or intervenes in) lawsuits in no more than a few hundred cases per year. See EEOC Litigation Statistics, FY 1997 through FY 2012, EEOC,

(243.) In the interest of space, I assume a working knowledge of the current regime. For a comprehensive overview, see Burbank et al., supra note 242.

(244.) 131 S. Ct. 2541.

(245.) Id. at 2542.

(246.) While most agree that the decision will plainly lead to fewer job discrimination class actions, the size of the effect is open to debate. Compare Gerald L. Maatman, Jr., Annual Workplace Class Action Litigation Report, SEYFARTH SHAW LLP 1-2 (2013), _docs/publications/CAR2013preview.pdf (noting the "wide-ranging impact" of Wal-Mart, as evidenced by, among other things, the lowest monetary total for the top ten largest employment discrimination class action settlements since 2006), with Elizabeth Tippett, Robbing a Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 HOFSTRA LAB. & EMP. L.J. 433,473-75 (2012) (arguing that class actions challenging "subjective" employment decision-making a la Wal-Mart were, and will remain, rare). See generally Margo Schlanger & Pauline Kim, The Equal Employment Opportunity Commission and Structural Reform of the American Workplace 1-2 & nn.3-4 (Aug. 13, 2013) (U. Mich. Pub. L. & Legal Theory Research Paper Series) (collecting scholarly commentary and recent case law relating to Wal-Mart's effects on class certification proceedings in private job discrimination actions).

(247.) Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 5 (2006). For two of the seminal contributions Bagenstos is summarizing, see Linch Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995); and Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. KEV. 458 (200l).

(248.) Bagenstos, supra note 247, at 5.

(249.) To be sure, not everyone agrees with every part of this view. A sizable body of academic opinion suggests that much of the difference in labor market outcomes across groups is attributable to variation in human capital or worker preferences rather than illegal discrimination, particularly in the gender context. See, e.g., James J. Heckman, Detecting Discrimination, 12 J. ECON. PERSP. l0l, l07-11 (1998) ; Jacob Mincer & Haim Ofek, Interrupted Work Careers: Depreciation and Restoration of Human Capital, 17 J. HUM. RESOURCES 3 (1982). Moreover, even commentators who share a conviction about the structural diagnosis do not agree on what precise regulatory response is indicated, with some advocating a nonadversarial, non-litigative approach. See Sturm, supra note 247, at 527-30; see also Lester M. Salamon, The New Governance and the Tools of Public Action: An Introduction, in THE TOOLS OF GOVERNMENT: A GUIDE TO THE NEW GOVERNANCE 1 (Lester M. Salamon ed., 2002) (arguing in favor of more flexible and decentralized "new governance" regulatory approaches as the optimal way to combat job discrimination).

(250.) See, e.g., Alexandra Kalev & Frank Dobbin, Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits Over Time, 31 Law & Soc. INQUIRY 855, 890 (2006); Sean Farhang, Private Lawsuits, General Deterrence, and State Capacity: Evidence from Job Discrimination Litigation (2012) (unpublished manuscript) (on file with author).

(251.) See Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 429, 441 (2004) (noting the low and declining fortunes of job discrimination plaintiffs); Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases, 77 GEO. L.J. 1567, 1584 (1989) (same).

(252.) Those disparities were substantial, with compensation paid to women totaling 5% to 15% less than compensation paid to similarly situated men. Similarly, while roughly 65% of WalMart's hourly employees during the class period were women, only 33% of management employees were women. See Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 146, 156 (N.D. Cal. 2004).

(253.) See, e.g., Bagenstos, supra note 247, at 40 (noting that "many of the problems that lead to workplace inequalities are problems of society-wide scope for which many legal actors will find it difficult to attribute blame to any particular employer," and suggesting that "we may be asking antidiscrimination law to do too much of the work of responding to society's inequalities").

(254.) See, e.g., Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 VAND. L. REV. 849, 851-54 (2007) (arguing that employers who "facilitate" discriminatory workplace decisionmaking, even if rooted in broader societal influences, should be subject to liability under antidiscrimination laws).

(255.) See Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L. REV. 97, 157-58 (2009) (summarizing the debate about where to locate the wrong of discrimination and likening the core legal question raised to that of "enabling torts" in terms of how to adjudicate liability of a defendant accused of facilitating the wrongful injuring of the plaintiff by a third party).

(256.) See id. at 153 (noting that the debate over class certification in the job discrimination context "is, at bottom, a debate over an implicit reconceptualization of discrimination under Title VII"). The merger of procedure and substance in the job discrimination context has both a formal doctrinal and a practical basis. On the former, and as the Wal-Mart Court squarely held, a trial court must "'probe behind the pleadings,'" including the "'factual and legal issues comprising the plaintiff's cause of action,'" and the resulting analysis will "entail some overlap with the merits of the plaintiff's underlying claim." 131 S. Ct. 2541, 2551-52 (2011) (quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982)). As to the latter (practical) basis, it is well accepted that successful class certification, whether in the job discrimination context or elsewhere, often generates a rapid settlement because of the threat of substantial liability a defendant faces. Indeed, much of the amicus practice in Wal-Mart centered on the possibility of "blackmail settlements" either just before or after class certification. See, e.g., Castano v. Am. Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996) (noting that certification creates "insurmountable pressure on defendants to settle"); Brief for the Chamber of Commerce of the United States of America as Amicus Curiae Supporting Petitioner, WalMart, 131 S. Ct. 2541 (No. 10-277), 2011 WL 288900, at *21-22 (noting that class certification dramatically raises the stakes in litigation for defendants, often creating "'intense pressure to settle'" even weak claims in ways tantamount to "'judicial blackmail'" (quoting In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298 (7th Cir. 1995))). Butsee Charles Silver, "We're Scared to Death": Class Certification and Blackmail, 78 N.Y.U.L. REV. 1357, 1360 (2003) (identifying but dismissing this claim).

(257.) For a comprehensive overview of EEOC charge processing, see C. Elizabeth Hirsh, Settling for Less? Organizational Determinants of Discrimination-Charge Outcomes, 42 LAW & Soc'Y REV. 239 (2008).

(258.) For statistics on how many cases receive the "A" label (and also "B" and "C" labels, as noted in the discussion that follows), see id. at 243; and Michael D. Ullman et al., The EEOC Charge Priority Policy and Claimants with Psychiatric Disabilities, 52 PSYCHIATRIC SERVS. 644, 647 tbl.2 (2001) (using data from 1995 to 1998). Importantly, both the mediation and conciliation processes are entirely voluntary in the sense that the EEOC cannot impose a binding settlement. See supra notes 105-106 and accompanying text.

(259.) See Robert E. Talbot, A Practical Guide to Representing Parties in EEOC Mediations, 37 U.S.F. L. REV. 627, 629 (2003) (describing the EEOC mediation program); Matthew A. Swendiman, Note, The EEOC Mediation Program: Panacea or Panicked Reaction?, 16 OHIO ST. J. ON DISP. RESOL. 391, 400-02 (2001) (same).

(260.) By statute, after 180 days the complainant can request--and the EEOC must issue--a rightto-sue notice, cutting off continued mediation, investigation, or conciliation. 42 U.S.C. [section] 2000e-5(f) (1) (2006).

(261.) See LAURA BETH NIELSEN ET AL., AM. BAR FOUND., CONTESTING WORKPLACE DISCRIMINATION IN COURT: CHARACTERISTICS AND OUTCOMES OF FEDERAL EMPLOYMENT DISCRIMINATION LITIGATION 1987-2003, at 14 (2008) (examining a large sample of job discrimination suits between 1987 and 2003 and finding that the EEOC falls to make any finding in 77% of cases); Hirsh, supra note 257, at 245 (noting that many EEOC investigative reports do little more than record the employer's position on the claim); Nielsen et al., supra note 176, at 177 (noting a consensus among plaintiffs' counsel that "most often the EEOC process results in considerable delay without producing meaningful investigation or conciliation"); Ullman et al., supra note 258, at 646 (finding that "only category A cases tend to receive a full investigation").

(262.) Hirsh, supra note 257, at 246; see also NIELSEN ET AL., supra note 261, at 14 figs.2.17, 2.18 (finding that the EEOC makes a formal cause determination in only twenty-three percent of cases and finds "cause" in just one in five of those); EEOC Enforcement & Litigation Statistics, All Statutes, FY 1997 - FY 2012 (2013), /enforcement/all.cfm (reporting that roughly one-third of cases the agency found supported by "reasonable cause" produced "successful conciliations" over the 1997-2012 interval).

(263.) See Fiscal Year 2012 Performance and Accountability Report, U.S. EQUAL EMP. OPPORTUNITY COMM'N 26 (Nov. 15, 2012) [hereinafter EEOC 2012 PERFORMANCE], /eeoc/plan/upload/2012par_1.pdf (noting a total of 8,714 successful mediations out of 11,380 attempted).

(264.) For instance, for FY 2012, the mediation program accounted for only $25.9 million of the EEOC's $385.5 million total budget request, while administrative charge processing accounted for $197.0 million. See Fiscal Year 2012 Congressional Budget Justification, U.S. EQUAL EMV. OPPORTUNITY COMM'N 10 (Feb. 2011), /2012budget.pdf; see also Nancy M. Modesitt, Reinventing the EEOC, 63 SMU L. REV. 1237, 1249 (2010) (examining EEOC budget reports and concluding that the EEOC's dollar-for-dollar return on its mediation program is much higher than the return on charge processing and litigation efforts).

(265.) These averages are calculated from the EEOC's published performance statistics for 2012 by dividing the approximate total monetary benefits achieved in mediated resolutions ($153.2 million) by the total number of such resolutions (8,714) and also the total monetary benefits achieved in conciliations ($71 million) divided by the total number of such resolutions (1,591). See EEOC 2012 PERFORMANCE, supra note 263, at 26-27; EEOC, Monetary Benefits by Types of Resolutions FY 2009 Through FY 2013 (Nov. 19, 2013) (on file with author).

(266.) See William M. Howard, Arbitrating Claims of Employment Discrimination: What Really Does Happen? What Really Should Happen?, DIsP. RESOL. J., Oct.-Dec. 1995, at 40, 44 (reporting survey results finding that the plaintiffs' employment bar will not generally accept cases with less than $60,000 in provable damages). Studies reporting win rates and damages awards in job discrimination suits that advanced to trial are consistent with this result. See GARY BLASI & JOSEPH W. DOHERTY, UCLA-RAND CTR. FOR L. & PUB. POL'Y, CALIFORNIA EMPLOYMENT DISCRIMINATION LAW AND ITS ENFORCEMENT: THE FAIR EMPLOYMENT AND HOUSING ACT AT 50, at 61 (2010) (examining job discrimination cases tried in California state court in 2007-2008 and reporting a roughly 50 percent plaintiff win rate and median plaintiff verdict of $205,000); see also Theodore Eisenberg & Elizabeth Hill, Arbitration and Litigation of Employment Claims: An Empirical Comparison, DISP. RESOL. J., Nov. 2003-Jan. 2004, at 44, 48, 50 (reporting a 36.4% plaintiff win rate and a mean recovery of approximately $336,000 in federal court job discrimination actions terminating in 1996). I further explore the role of the plaintiffs' employment bar in the proposed restructuring of the EEOC below. See infra notes 300-301 and accompanying text.

(267.) See Michael Selmi, The Value of the EEOC: Reexamining the Agency's Role in Employment Discrimination Law, 57 OHIO ST. L.J. 1, 44 (1996) ("[M]any attorneys prefer to routinely refer cases to the EEOC where the agency will conduct an investigation at the public's expense."); see also supra notes 173-174 and accompanying text (showing how gatekeeper mechanisms, especially non-binding ones, can operate to subsidize undesirable claims). One study goes further and argues that EEOC charge processing generates a type of adverse selection problem in which claimants with nonmeritorious claims are most likely to engage the EEOC process. Alberto Davila & Alok K. Bohara, Equal Employment Opportunity Across States: The EEOC 1979-1989, 80 PUB. CHOICE 223 (1994). For debate over whether trim judges have discretion to exclude EEOC "cause" determinations from jury consideration, see Leslie Abbott, Comment, Out of Balance: Excluding EEOC Determinations Under Federal Rule of Evidence 403, 24 LOY. L.A.L. REV. 707 (1991).

(268.) See supra notes 176-177 and accompanying text.

(269.) See, e.g., Maurice E.R. Munroe, The EEOC: Pattern and Practice Imperfect, 13 YALE L. & POL'Y REV. 219, 275-79 (1995) (proposing that the EEOC abandon all efforts to resolve individual claims in favor of more systemic enforcement efforts); Selmi, supra note 267 (arguing that the agency should either be eliminated or reorganized to devote almost all of its resources to cases that are not lucrative enough for private attorneys). For rare arguments in support of EEOC charge processing, see Anne Noel Occhialino & Daniel Vail, Why the EEOC (Still) Matters, 22 HOFSTRA LAB. & EMP. L.J. 671,704 (2005) (arguing that EEOC charge processing still plays a "critical" role); and Joseph Prud'homme, Federal Employment Law: Current Problems and a Call for Rearm, 1 J. RACE GENDER & ETHNICITY 51 (2006) (arguing in favor of greater EEOC empowerment).

(270.) See Engstrom, supra note 25, at 1086 (quoting REPORT OF THE NEW YORK STATE TEMPORARY COMMISSION AGAINST DISCRIMINATION 48 (1945)) (tracing the origins of conciliation as a regulatory device at the state and federal levels); see also Selmi, supra note 267, at 2 (noting that "the purpose of resolving claims through conciliation has long since been lost").

(271.) For analyses supporting the EEOC's mediation program, see Michael Z. Green, Proposing a New Paradigm for EEOC Enforcement After 35 Years: Outsourcing Charge Processing by Mandatory Mediation, 105 DICK. L. REV. 305 (200l); Talbot, supra note 259; and Swendiman, supra note 259.

(272.) See EEOC 2012 PERFORMANCE, supra note 263, at 27 (defining "multiple-victim suits" as suits "with fewer than 20 victims" and distinguishing them from "individual" and "systemic" suits).

(273.) It is not clear how many private actions would meet these criteria, as neither the EEOC nor the Administrative Office of the U.S. Courts regularly reports such data. However, a comprehensive study of job discrimination litigation over the period 1987-2003 using a random sample of nearly 2,000 suits from 6 different district courts found that class actions accounted for between 2% and 3% of the total (with only 1% ultimately winning certification). See NIELSEN ET AL., supra note 261, at 13; see also DEBORAH R. HENSLER ET AL., CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOg PRIVATE GAIN 53 (2000) (reporting roughly 150 reported judicial decisions in employment class actions during 1995-1996); Melissa M. Mulkey, Class Dismissed: Defending and Preventing Employment Class Actions in Your Workplace, HR ADVISOR: LEGAL & PP.AC. GUIDANCE, July-Aug. 2006, at 1 (noting the filing of 222 federal employment-related class action suits in 2001, and 349 such suits in 2004). Extrapolating from the Nielsen sample to the current total case tally of roughly 15,000 federal job discrimination suits per year would imply roughly 300 to 450 putative employment class actions filed annually.

(274.) This would take large-scale employment discrimination actions outside Rule 23's ambit entirely. Note that a passive "veto" approach would be less ideal here, despite its agency-forcing and anti-capture qualities. The principal advantage of the license approach is that it requires affirmative action by the agency, which is necessary if the agency's decision to allow the case to go forward is to double as class certification.

(275.) See supra notes 107-110 and accompanying text.

(276.) See supra note 220 and accompanying text.

(277.) Scholars have frequently called for a similar shift in emphasis within the regime but have not generally paired those calls with proposals that alter bureaucratic incentives in ways designed to achieve the shift. See, e.g., Modesitt, supra note 264, at 1263, 1270-74 (advocating that the EEOC shift toward "investigating and litigating significant claims" and proposing that the EEOC recover fees and fines, but failing to explain how this will move the agency toward more systemic cases); Munroe, supra note 269, at 275-79 (proposing the dismantlement of the EEOC charge processing system and a re-allocation of EEOC resources toward litigating larger claims without specifying why a newly unburdened EEOC would do so). Of the roughly three hundred cases on the EEOC's docket at the end of FY 2012, fewer than half involved multiple aggrieved parties, and still fewer--twenty percent-were "systemic" lawsuits involving twenty or more aggrieved parties. See EEOC 2012 PERFORMANCE, supra note 263, at 27.

(278.) See supra notes 54-63 and accompanying text.

(279.) See supra notes 64-66 and accompanying text.

(280.) See supra notes 67-69 and accompanying text.

(281.) See supra notes 75-79 and accompanying text.

(282.) For further explanation of why this will be the case, see infra notes 295-299 and accompanying text.

(283.) Whatever the political saleability of my proposal, it is plainly no less saleable than competing proposals. For instance, the sole congressional proposal that has arisen postWal-Mart would allow plaintiffs to maintain a "group action" under federal job discrimination laws subject to what appear to be softened versions of Rule 23's usual numerosity, commonality, typicality, and adequacy requirements, thus reversing Wal-Mart at least in part, but would not alter any other aspect of the regime, thus offering no concession to employers. See Equal Employment Opportunity Restoration Act, H.R. 5978, 112th Cong. [section] 3 (2012); S. 3317, 112th Cong. [section] 3 (2012). Another standard proposal advanced in Wal-Mart's wake is for the EEOC to take on a more active enforcement role by initiating and prosecuting more "pattern or practice" lawsuits under its current statutory authority. See, e.g., Joseph A. Seiner, Weathering Wal-Mart, 89 NOTRE DAME L. REV. (forthcoming 2014). As noted previously, however, such proposals are unlikely to succeed without altering the current agency's incentives. See supra note 276 and accompanying text. Note two further problems with such proposals. One is that the EEOC is acutely resource-constrained, and so it seems unlikely that even a Congress that is sympathetic to a more robust EEOC enforcement role will fund a significant expansion of the EEOC's litigation capacity in the current era of fiscal austerity. This, incidentally, would also seem to rule out a number of pre-Wal-Mart proposals for an enhanced EEOC enforcement role in non-systemic cases as well. Particularly unrealistic in the current fiscal climate is a proposal to vest the EEOC with cease-and-desist powers along the lines of those held by the Federal Trade Commission or National Labor Relations Board--an administrative approach to job discrimination regulation that the early civil rights movement favored until the late 1960s. See Julie Chi-Hye Suk, Antidiscrimination Law in the Administrative State, 2006 U. ILL. L. REV. 405, 472-73 (advancing such a proposal as a way to remake the present-day regime); see also Engstrom, supra note 25, at 1081 (recounting the early civil rights movement's advocacy of a similar agency-centered approach to regulating job discrimination); supra note 268 (collecting other, pre-Wal-Mart proposals to expand the EEOC enforcement role by expanding or intensifying the individual charge processing portion of the regime). A second concern is the competency of the EEOC to take on an expanded litigation role in systemic actions. These concerns--resource constraints, competence, and capacity--suggest that a more promising approach is a hybrid public-private approach of the sort advanced herein, which would allow the EEOC to leverage private resources and legal talent in the prosecution of systemic actions. For more discussion of the advantages of a hybrid approach--including an analogy to the FCA's qui tam regime--see infra notes 287-289 and accompanying text.

(284.) See supra note 276 and accompanying text.

(285.) See supra notes 179-180 and accompanying text.

(286.) See The Commission, EEOC, (last visited Sept. 1, 2013).

(287.) The EEOC announced in April 2006 that it would pursue more systemic discrimination cases affecting large number of workers, and it has recently reiterated its focus in that regard. See, e.g., Press Release, EEOC, EEOC Makes Fight Against Systemic Discrimination a Top Priority (Apr. 4, 2006), (announcing intent to strengthen approaches to investigating and litigating systemic cases); EQUAL OPPORTUNITY EMP'T COMM'N, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION STRATEGIC ENFORCEMENT PLAN FY 2013-2016 (Dec. 17, 2012), (announcing an agency-wide shift away from small individual lawsuits toward larger-scale pattern or practice lawsuits).

(288.) See Maatman, supra note 246, at 5 (noting several cases in which district court judges leveled sanctions against the EEOC in pattern and practice cases deemed to lack merit); see also EEOC v. CRST Van Expedited, Inc., No. 07-CV-95-LRR, 2010 WL 520564 (N.D. Iowa Feb. 9, 2010) (ordering EEOC to pay $4.46 million in fees and costs for performing an inadequate pre-filing inquiry); Jenna Greene, Trucker Case Crashes for EEOC, NAT'L L.J., May 11, 2012 (recounting the same sexual harassment case and quoting the judge as saying she had "never had a case brought by a government agency that was such a mess").

(289.) See supra notes 141-144 and accompanying text.

(290.) See supra notes 205-208 and accompanying text.

(291.) See Selmi, supra note 267, at 33-34 (noting that the current charge processing system serves as a forum for low-value claims, especially those asserting discrimination on the basis of race, gender, or national origin). Empirical support for this concern comes from the claim, noted previously, that plaintiff-side employment lawyers will typically not accept cases with provable damages below roughly $60,000. See supra note 266. Still more evidence comes from the previously noted RAND study of California job discrimination claims, which found that smaller claims and claims brought by particular claimant types (laborers, racial minorities) are relegated to the administrative adjudication side of the state-level regime while larger claims and claims brought by other claimant types (professionals, men) attract counsel and flow into the state court system. BLASI & DOHERTY, supra note 266, at 40, 53-54.

(292.) See supra notes 262-264 and accompanying text.

(293.) See Farhang, supra note 250, at 5 (explicating the concepts of general and specific deterrence in the job discrimination context (citing Albert Reiss, Selecting Strategies of Social Control of Organizational Life, in ENFORCING REGULATION 23 (Keith Hawkins & John M. Thomas eds., 1984))).

(294.) See supra note 291.

(295.) Note that this is a concern from a systemic efficiency standpoint, but it is likewise concerning if we think that rising filings may generate a "backlash" among district judges. See Lemos, supra note 64, at 817; see also Minna J. Kotkin, Invisible Settlements, Invisible Discrimination, 84 N.C.L. REV. 927, 931 n.15 (2006) (collecting federal judges' complaints about employment discrimination cases burdening their dockets).

(296.) See EEOC 2012 PERFORMANCE, supra note 263, at 25-27 (noting that roughly 10,000 of the nearly 100,000 charges filed with the EEOC annually are successfully conciliated or mediated).

(297.) See Selmi, supra note 267, at 3 (noting that some cases would be "settled favorably for the plaintiffs" without litigation even in the absence of agency involvement). A puzzle here is why EEOC charge processing and conciliation facilitates settlement at all given that the EEOC lacks a credible threat of joining or independently pursuing more than a trivial number of enforcement actions.

(298.) See supra notes 173-174, 268-269 and accompanying text.

(299.) See Selmi, supra note 267, at 53 (noting that not all charges filed in the current regime "would be transformed into lawsuits" upon the abolition of EEOC charge processing).

(300.) A precise accounting of the state of the black and plaintiff-side employment bar at the time of Title VII's enactment is hard to come by. But the immaturity of the plaintiffs' employment bar seems certain given the prevalence of at-will employment in American law at the time and the fact that those states that enacted state-level fair employment laws between 1945 and 1964 mostly created administrative regimes to enforce them, thus offering only limited litigation opportunities around which entrepreneurial plaintiffs' counsel could gather. See Elletta Sangrey Callahan, The Public Policy Exception to the Employment at Will Rule Comes of Age: A Proposed Framework for Analysis, 29 AM. Bus. L.J. 481, 483-84 (1991) (noting the prevalence of the strict at-will doctrine in most states until the 1970s or 1980s); Engstrom, supra note 25, at 1081-82 (noting the administrative enforcement approach of most state fair-employment laws passed in the pre-Title-VII period). One can also infer a lack of private counsel willing to bring suits at the dawn of Title VII implementation--whether among black lawyers or the plaintiffs' bar--from the fact that much of the first wave of Title VII suits came from civil rights groups, particularly the NAACP (whether its national office or local branches) or its legal arm, the Legal Defense Fund. See JACK GREENBERG, CRUSADERS IN THE COURTS: LEGAL BATTLES OF THE CIVIL RIGHTS MOVEMENT 443-62 (2004) (offering a detailed overview of early Title VII implementation and the centrality of the LDF in bringing it); see also JUDITH STEIN, RUNNING STEEL, RUNNING AMERICA: RACE, ECONOMIC POLICY, AND THE DECLINE OF LIBERALISM 169-77 (1998) (describing the centrality of the NAACP and LDF in wide-scale litigation efforts against the steel industry in the late 1960s and early 1970s). To be sure, this state of affairs would quickly change. By 1966, the leadership of the Associated Trial Lawyers of America had recognized that civil rights suits could provide large paydays and was urging the organization's members to bring at least one civil rights suit. See Engstrom, supra note 25, at 1143. And the period following Title VII's passage saw steady growth in case filings, from fewer than 350 in 1970 to some 9,000 by 1983, suggesting the rapid expansion among the ranks of private lawyers willing to bring such claims. See PAUL FRYMER, BLACK AND BLUE: AFRICAN AMERICANS, THE LABOR MOVEMENT, AND THE DECLINE OF THE DEMOCRATIC PARTY 83, 88 (2008); John J. Donohue & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 STAN. L. REV. 983, 985-86 (1991). But taken together, the above evidence makes it safe to conclude that the private plaintiff-side employment bar was, at the time of Title VII's enactment, at best embryonic.

(301.) To be sure, some commentators have suggested that Title VII implementation has been hampered by the lack of a well-developed plaintiffs' employment bar. See, e.g., Stephen C. Yeazell, Brown, the Civil Rights Movement, and the Silent Litigation Revolution, 57 VAND. L. REV. 1975, 1991-99 (2004) (suggesting, though without accompanying empirical support, that federal law "has not yet produced a robust plaintiffs' bar in employment discrimination"). And that bar may have suffered something of a contraction in the 1980s as a result of narrowing judicial interpretations of Title VII's attorney's fees provision in particular, leading some commentators to declare it an "endangered species." Ray Terry, Eliminating the Plaintiff's Attorney in Equal Employment Litigation: A Shakespearian Tragedy, 5 LAB. L. 63, 63 (1989); see also FARHANG, supra note 1, at 191-92, 191 n.115 (noting repeatedly articulated concerns during congressional debate over the Civil Rights Act of 1991 regarding the "dearth of competent counsel willing to represent victims of discrimination despite many meritorious suits" and the need to shore up the "civil rights market" in order to facilitate litigation of meritorious claims) (quoting S. REV. NO. 315, at 33 (1989)). However, the best evidence suggests that the present-day plaintiffs' employment bar is sufficiently robust to play a substantial screening role. In particular, it is clear that the Civil Rights Act of 1991, by making available limited punitive damages and jury trials, generated a surge of Title VII enforcement activity and concomitant growth of the plaintiffs' employment bar. See Richard Michael Fischl, Rethinking the Tripartite Division of American Work Law, 28 BERKELEY J. EMP. & LAB. L. 163, 200 (2007) (noting the general view that the Civil Rights Act of 1991 made Title VII claims "far more attractive to the plaintiffs' bar"); see also Sturm, supra note 247, at 551 n.342 (citing a sitting EEOC commissioner for the proposition that the 1991 Civil Rights Act, by providing for punitive damages and jury trials, fueled "the creation of a plaintiffs' employment bar"); Sean Farhang & Douglas Spencer, Economic Incentives for Attorney Representation in Civil Rights Litigation 16-17 & 47 fig.1 (2012) (unpublished manuscript), (finding an increase in plaintiffs able to secure representation following the Civil Rights Act of 1991). Today, the National Employment Lawyers Association, the principal plaintiff-side employment lawyer organization, boasts more than 3,000 members. See Membership: About NELA, NAT'L EMP'T LAWYERS ASS'N, (last visited Sept. 1, 2013). It is likewise clear that lawyers play a substantial case-screening role within the current system. See BLASI & DOHERTY, supra note 266, at 50 (examining patterns in the characteristics of the job discrimination claims brought in California state court by plaintiffs represented by counsel and claims brought by unrepresented plaintiffs that remain in the state's administrative enforcement regime and finding that the former tend to be higher-value and more likely to win); Dunlop Commission on the Future of Worker-Management Relations: Statement on Alternative Dispute Resolution Before the Department of Labor (Apr. 6, 1994) (testimony of Paul Tobias, head of the National Employment Lawyers Association) (stating that plaintiff-side employment lawyers turn down 95 percent of cases that come to them); see also Theodore Eisenberg & Charlotte Lanvers, What Is the Settlement Rate and Why Should We Care?, 6 J. EMPIRICAL LEGAL STUD. 111, 143 (2009) (analyzing job discrimination litigation outcomes and concluding that "[i]t is unlikely that employment attorneys fail to substantially screen their cases on the merits"). On the financial and intellectual capitalization of the broader plaintiffs' bar over the post-war period, see Stephen C. Yeazell, Re-Financing Civil Litigation, 51 DEPAUL L. REV. 183, 216 (2001).

(302.) See Coffee, supra note 35, at 227 (advancing the "failsafe" argument); Stephenson, supra note 72, at 1038 (noting that the delegation of enforcement and adjudicatory authority to agencies is likely to produce greater temporal instability than delegation to courts); see also Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53, 55 (2008) (explaining how a moderate amount of "bureaucratic insulation creates ... inertia" that is preferred by the majority of voters).

(303.) A version of the civil rights exceptionalist view is implicit in the argument that antidiscrimination rights should not be subject to any cost-based defense. See, e.g., Mark S. Brodin, Costs, Profits, and Equal Employment Opportunity, 62 NOTRE DAME L. REV. 318, 320 (1987) (rejecting any cost-based defense, even in disparate impact cases, in favor of an uncircumscribed antidiscrimination right). But see Mark Kelman, Market Discrimination and Groups, 53 STAN. L. REV. 833, 834 (2001) (critiquing this view); Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 857-58 (1999) (critiquing a similar tendency to identify "pure" constitutional values apart from the remedial apparatus that imports cost balancing and gives them real-world effect).

(304.) This choice between a politics-based model of administration and a rights-based model of litigation inheres in much public law scholarship but is rarely addressed head-on. For a recent analysis that views parens patriae actions by state attorneys general through a due process lens, see Lemos, Aggregate Litigation, supra note 17, at 532-35.

(305.) Past empirical studies of the effect of party control on EEOC outputs leave little doubt on this score. See, e.g., B. Dan Wood, Does Politics Make a Difference at the EEOC?, 34 AM. J. POL. SCI. 503 (1990) (documenting significant effects of the party holding the presidency on the percentage of charges resolved and the number of settlements reached by the EEOC).

(306.) See supra notes 247-249 and accompanying text.

(307.) See Catherine L. Fisk & Deborah C. Malamud, The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform, 58 DUKE L.J. 2013, 2015 (2009) ("[The NLRB] has oscillated between extremes with every change of controlling political party...."); Moe, supra note 192, at 1108 (finding that a statistically significant amount of the variance in decisions of the National Labor Relations Board over time can be explained by political conditions); cf. Edelman, supra note 82 (surveying the sociology literature on the organizational response to civil rights laws). Similarly, an EEOC that fails into deregulatory partisan hands will degrade enforcement vigor even after the agency returns to pro-regulatory partisan hands by reducing the overall investment the plaintiffs' employment bar makes in regime-specific enforcement capacity, including litigation expertise and an infrastructure for identifying and retaining clients. See Engstrom, supra note 46, at 1252. Either dynamic will narrow regulatory variation across partisan changeovers, thereby attenuating the degree of political accountability that is achieved.

(308.) To begin, an agency's exercise of wholesale gatekeeper powers will not trigger due process concerns at all. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915). The same result obtains in the retail gatekeeper context, so long as Congress structures the right to be enforced so as to avoid constitutional problems. More concretely, while a cause of action can be a protectable property interest sufficient to trigger due process, see Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982), the Court's other due process jurisprudence leaves ample room for Congress to insulate an agency's exercise of retail gatekeeper authority from constitutional attack by defining (or re-defining, in the case of already-existing regimes) the right to be enforced to make clear that a private right of action terminates upon agency takeover of the litigation, see Cleveland Bd. of Educ, v. Loudermill, 470 U.S. 532, 538 (1985); Bd. of Regents v. Roth, 408 U.S. 564, 576-78 (1972). Indeed, Congress's use of such an approach in the ADEA context, as noted previously, passed muster in the only case to hear a due process challenge to an agency's exercise of gatekeeper powers over statutory causes of action. See EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1506-07 (9th Cir. 1990); see also supra note 122 and accompanying text (reproducing ADEA provisions regarding EEOC gatekeeper powers). Congress can similarly (re-)structure the right to be enforced to avoid Article III's prohibition on vesting an agency with judicial powers. (Note that Article III concerns are only implicated where a gatekeeper agency terminates a private enforcement action, since a gatekeeper agency's takeover of a private enforcement action will still result in adjudication before an Article III court.) In particular, where Congress makes clear that a would-be plaintiff's right of action is contingent upon an agency's discretionary preemption or termination, then an agency's exercise of its gatekeeper authority is unlikely to be viewed as an improper transfer of the "essential attributes of judicial power" or an adjudication of a "private" right under the Court's public/private rights rubric. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848-50 (1986); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 68-69 (1982). Finally, the Court has long held that the constraints imposed by the Seventh Amendment analysis are coterminous with those imposed by Article III, see Granfinanceria, S.A. v. Nordberg, 492 U.S. 33, 53 (1989), suggesting that jury rights will play no independent role in the above analysis.

Associate Professor, Stanford Law School. This Article, and the broader project of which it is part, has benefitted enormously from presentations at the Political Economy and Public Law Conference at Harvard Law School, the Conference on Empirical Legal Studies at Northwestern University School of Law, and the Administrative Law Roundtable at Columbia Law School, as well as workshops at Stanford, Georgetown, Minnesota, NYU, and University of Virginia law schools. Thanks to Peter Conti-Brown, Tino Cuellar, Nora Freeman Engstrom, Barbara Fried, Dan Ho, Pam Karlan, Mark Kelman, Maggie Lemos, Anne O'Connell, Nick Parrillo, Bob Rabin, Bill Rubinstein, Shirin Sirmar, Norm Spaulding, and John Witt for helpful feedback. Thomas Fu, David Hausman, and Craig Lavoie provided outstanding research assistance.
Table 1.


Design Dimension                         Design Choice

Nature of Agency Authority      Affirmative          Residual

Reach of Agency Authority        Wholesale            Retail

Legal Effect of Agency            Advisory            Binding

"Gate" Type/Required Agency     Passive Gate   Active Displacement +
Action                                            Control Rights

Decision Type/Default Private       Veto              License
Enforcement Availability

Table 2.

       Affirmative/    Retail/    Advisory/
Type     Residual     Wholesale    Binding

I        Residual      Retail     Advisory

II     Affirmative     Retail     Advisory

III    Affirmative     Retail      Binding

IV     Affirmative     Retail      Binding

V      Affirmative     Retail      Binding

VI     Affirmative    Wholesale    Binding

       Passive Gate/
       Displacement +    Veto/
Type   Control Rights   License   Real-World Examples

                                  FRCP 24 intervention/
I           N/A           N/A     FRAP 29 arnicus
                                  EEOC "cause" findings
                                  under Title VII, ADA, Age
                                  Discrimination in

II      Passive Gate      N/A     EmploymentAct
                                  ("ADEA"), state medical
                                  malpractice screening

III        Active        Veto     EEOC intervention under
       Displacement +             Title VII, ADA
        Weak (or No)
       Control Rights

IV         Active                 EPA under "citizen suit"
       Displacement +    Veto     provisions of federal
       Strong Control             environmental law; EEOC
           Rights                 under ADEA; DOL under
                                  Fair Labor Standards Act
                                  (FLSA) ; DOJ under False
                                  Claims Act (intervention
                                  authority); California
                                  labor agencies under
                                  Labor Code Private
                                  Attorneys General Act

V       Passive Gate     Veto     DOJ under False Claims
                                  Act (termination

VI      Passive Gate     Veto     Regulatory preemption

Table 3.

Agency Gatekeeper
Action/Task               Description

Terminate or Suspend      Agency serially terminates
All Private               all private actions
Enforcement Efforts       asserting particular claims deemed
                          socially inefficient or beyond
                          legislative purposes, or holds them in
                          abeyance pending a definitive legislative
                          or administrative interpretation.

Terminate or Control      Agency terminates or controls specific
Particular Private        private enforcement efforts asserting
Enforcement Efforts       particular claims when their social costs
                          exceed their benefits or they
                          inefficiently piggyback on public
                          enforcement initiatives. By neither
                          terminating nor joining an action, the
                          agency also signals uncertainty about
                          case value or merit, thus highlighting
                          the need for careful judicial
                          scrutiny and case management.

Anti-Queuing: Leverage    Agency intervenes in specific private
Under-Resourced or        enforcement efforts that possess
Overmatched Private       substantial merit but where private
Enforcers                 enforcers--whether plaintiffs or
                          counsel-lack sufficient resources or
                          expertise to fully vindicate the public

Anti-Scaling: Induce      Agency invites and then intervenes in
(and Pursue) Low- and     specific private enforcement efforts
High-Value Claims         targeting low- and high-value claims that
                          private enforcers would not otherwise see
                          as marketable.

Anti-Collusion: Police    Agency monitors private enforcement
Collusive and/or          efforts and uses intervention or other
Overbroad Private         veto authority to block collusive or
Settlements               over-broad private settlements.
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Title Annotation:III. The Optimal Design of Agency Gatekeeper Regimes B. Deviations from the Gatekeeper Ideal through Conclusion, with footnotes, p. 663-712
Author:Engstrom, David Freeman
Publication:Yale Law Journal
Date:Dec 1, 2013
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