Diagonal Public Enforcement

Posted by Social Science Research Network

Diagonal Public Enforcement

By Zachary D. Clopton (Cornell Law School)

Abstract:     Civics class teaches the traditional mode of law enforcement: the legislature adopts a regulatory statute and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. One government provides the executive, while a different government provides the legislature and judiciary. I call this unusual form of interstate relations “diagonal public enforcement.”

Although diagonal public enforcement has escaped systematic study, one can find examples in American courts going back more than a century. Foreign governments have used American courts to enforce federal antitrust laws, state environmental laws, and civil rights statutes, among others. Just last term, the Supreme Court heard a case in which the European Commission sued American tobacco companies in a New York federal court under the federal RICO statute. Diagonal public enforcement occurs within the US system as well. States routinely enforce federal laws in federal courts, and opportunities exist for states to enforce sister-state laws, especially with respect to climate change and other cross-border issues.

Despite these examples, diagonal public enforcement appears to som…

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