Civil rights laws are not self-enforcing. Enforcement mechanisms, therefore, need to be studied as part of the larger debate on the form and direction of civil rights law. The current decline of the ability of the private attorney general to fairly and consistently enforce our civil rights laws strengthens the argument for a renewed emphasis on the importance and form of government enforcement. Focusing on the Americans with Disabilities Act, this Article presents a new vision of public enforcement. After explaining the historical, theoretical, and practical strengths of public enforcement—all things that cannot be completely “outsourced” to private attorneys general—this Article suggests that public enforcement officials need to renew their commitment to structural litigation, especially in areas where the profit motive for private lawyers is low, noncomplicance appears systemic, there is a vacuum for case development, and individual plaintiffs have standing difficulties challenging broad-ranging discrimination. Recognizing that litigation, even of the structural variety, will always be an incomplete enforcement strategy, this Article also offers a novel application of “new governance” theory to public enforcement activity. In particular, this Article identifies several areas where public enforcement officials could help transform the way that ADA norms are established. In these areas, rather than relying on courts to make decisions interpreting the statute’s broad principles, the government could foster a broader cross-section of interested stakeholders cooperatively deciding on individualized and contextualized solutions.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]