Much to Sam’s chagrin, this week’s episode requires him to talk about civil procedure. His verdict on the book? “It’s really compelling, even for me.” David was less conflicted: “It’s a banger.”
Diego Zambrano, professor of law and faculty director of the Neukom Center for the Rule of Law at Stanford Law School, joins the pod to discuss his new book, How Americans Enforce the Law. Why has the United States come to rely so heavily on private lawsuits to enforce public law? Zambrano traces the practice from English penal statutes to modern securities, employment, civil rights, and environmental litigation. His account of “layered path dependence” explains how a fragmented state, expansive procedural rules, and a powerful plaintiffs’ bar helped private enforcement persist and grow.
David presses Zambrano on how far his account departs from explanations based on divided government, why states with large bureaucracies still rely heavily on private lawsuits, and what counting statutes misses about judicial lawmaking. Sam asks whether American distrust of government deserves more weight, and what is really private about enforcement when public judges decide the cases.
We then move beyond explanations and turn to whether private enforcement actually works. Does private enforcement compensate for low state capacity, or does it simply give legislators an excuse to leave executive branch weak? Are courts any less vulnerable to capture than regulators? Diego weaves through a range of contexts (CEQA and clean energy to securities litigation and TikTok) and explains when private lawsuits help, when they get in the way, and how lawmakers should adjust enforcement as conditions change. We close with a question for civil procedure nerds everywhere: Should different kinds of claims have different procedural rules?
Referenced Readings
How Americans Enforce the Law, Diego Zambrano, Stanford University Press (2026).
The Litigation State: Public Regulation and Private Lawsuits in the U.S., Sean Farhang, Princeton University Press (2010).
Adversarial Legalism: The American Way of Law, Robert A. Kagan, Harvard University Press (2001).
Legislative Acorns and Judicial Oaks, Nick Bagley and David Schleicher, Balkinization (2026) (reviewing How Americans Enforce the Law).
The False Claims Act and the English Eradication of Qui Tam Legislation, J. Randy Beck, North Carolina Law Review (2000).
Does Interest Group Theory Justify More Intrusive Judicial Review?, Einer R. Elhauge, Yale Law Journal (1991).
How Private Enforcement Exacerbates Climate Change, Anna A. Mance, Cardozo Law Review (2023).
Game of Thrones, Season 2, David Benioff and D. B. Weiss, HBO (2012).
The Institutional Dimension of Consumer Protection, Samuel Issacharoff and Ian Samuel, New Frontiers of Consumer Protection: The Interplay Between Private and Public Enforcement (2009).
Getting Infrastructure Built: The Law and Economics of Permitting, Zachary Liscow, Journal of Economic Perspectives (2025).