Cornell Law Review Volume 102 Issue 4

Democratic Enforcement? Accountability and Independence for the Litigation State

A vast literature in law and political theory focuses on questions of accountability and independence in democratic government. Commentators tend to celebrate accountability in the legislative and regulatory arenas, and independence in the context of adjudication. Yet they largely ignore the government function that lies at the intersection of law-making and law-application: enforcement. The gap in theory is reflected in our current laws and institutional structures. When an agency proposes a new regulation, we have rules in place to promote political accountability, public participation, and neutral expertise in the regulatory process. When the same agency adopts a new approach to enforcing the relevant statutes and regulations, however, we lack equivalent mechanisms for legitimating government action.

 This Article seeks to fill that gap. Focusing on the civil side of the civil/criminal divide, I develop a theory of enforcement that makes sense of its place in our system of government. Enforcement, I explain, connects law-making and adjudication both in terms of how it operates—bringing cases to adjudicators so that generally applicable laws may be interpreted and applied to particular individuals and firms—and in terms of the features it shares with those more familiar modes of governance. Enforcement is a form of discretionary policymaking, necessitating the same sorts of policy judgments that characterize law-making, and triggering similar demands for accountability, transparency, and public engagement. But enforcers also must make individualized, retroactive, legal determinations of the sort we associate with judging, making the strongest forms of popular control seem inapt.

Drawing from democratic theory, I argue that the seeming tension between accountability and independence can be resolved by understanding enforcement as a form of political representation. Casting enforcement in this light helps reveal the importance of accountability in the enforcement context, while also making clear that enforcers can “represent” the public without slavishly following the public will. To say that public enforcement should be accountable is not to deny the need for autonomous professional judgment, but to insist that it is the responsibility of government to inform its citizens of what it is doing in their name, and to listen to their views in return. A call for accountability is also a call for mechanisms by which citizens can attempt to influence enforcement prospectively, or “hold it accountable” retrospectively. And accountability to the public entails some measure of insulation from narrow, private interests.

Our current treatment of enforcement falls far short of this vision. As this Article shows, we have few tools to secure meaningful political accountability for enforcement—but neither do we have the means to shield enforcement from improper influence. Under existing law, it turns out, enforcement is both too independent and not independent enough.

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