Legislative Acorns and Judicial Oaks

For the Balkinization symposium on Diego Zambrano, How Americans Enforce the Law (Stanford University Press, 2026).Nick Bagley and David SchleicherWhy do Americans love private rights of action? Because we really, really love them, as Diego Zambrano shows in his compelling new book, How Americans Enforce the Law. Today, more than 10,000 statutory private rights of action allow Americans to sue over things as serious as wage theft and as trivial as pet leases. They have an ancient pedigree, stretching back well before the nation’s founding. And they are at the core of basically every twentieth-century legal regime, ranging from securities law to consumer protection to environmental law. It’s not just that our love is so intense. It’s that the object of our love is so weird. No other country—not even other countries with a common-law inheritance—relies as heavily as we do on private litigation to enforce statutes. (Will McAvoy can add a fourth category of things the U.S. leads the world…