Private Litigation, Public Policy Enforcement: The Regulatory Power of Private Litigation and the American Bureaucracy
Her dissertation examined the role of private power, particularly that supplied by private litigation, in the American regulatory state. While traditional accounts suggest that the progressive regulatory state that came into being over the course of the extended New Deal and Great Society periods is weak when compared to its counterparts abroad, Mulroy’s research builds on a revisionist strain within the APD literature which identifies strategies by which a lean liberal state can achieve impressive regulatory results. Through a historical analysis of the development of the regulatory capacity of several agencies, she argued that constrained agencies may look outside themselves, and their formally granted administrative powers, for enforcement power by developing incentive structures that encourage private actors to engage in litigation that advances regulatory goals. She found that variation in the use of this alternate source of regulatory power by agencies can be explained by factors related to an agency’s institutional development and formation, but also that the character, scope, and activation of this pathway of enforcement over time is contingent upon political and temporal considerations. By reconsidering how to integrate informal mechanisms of enforcement, like agency-motivated private litigation, into theories of bureaucratic regulation, her project aimed to contribute to our practical understanding of ’day-to-day’ agency behavior and to our conceptions and assessments of state capacity, more broadly.