How Culture, Economics and Politics Shape Collective Litigation
Edited by Deborah R. Hensler, Christopher Hodges and Ianika Tzankova
Chapter 16: Public as private and private as public: MTBE litigation in the United States
In the end, it is a question of governance: in modern society, who should make and enforce the rules? In the context of dispute resolution, the debate is often framed as a choice between ‘public’ legislatures and administrative agencies on the one hand and ‘private’ enforcement by litigants using the court system on the other. Even that description shows that the public and private labels are misleading, since courts themselves are public agencies staffed by government employees, applying laws created by government actors. In addition, multiple public agencies with different missions may make conflicting choices. The ‘public’ label is an inadequate descriptor in another way in countries with multiple levels of government. Rules created by the central government and its courts may differ from those created at a different level—such as a US state government—by another set of legislatures, agencies and courts. Even municipalities may make decisions that create standards different from those made at higher levels. Yet all are forms of ‘public’ norm creation and enforcement. The story becomes even more complicated when government entities become litigants, and especially when they are plaintiffs. While they sometimes act in a clearly governmental capacity, acting to enforce their laws, sometimes they are very much like private litigants, seeking compensation for their own damages. One further wrinkle: the public norms themselves are sometimes deeply influenced by the private entities that can anticipate being affected by those rules. Legislatures are lobbied.
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