Title: Special Education, Poverty, and the Limits of Private Enforcement
Abstract: This Article examines the appropriate balance between public and private enforcement of statutes seeking to distribute resources or social services to a socioeconomically diverse set of beneficiaries through a case study of the federal special education law, the Individuals with Disabilities Education Act (IDEA). It focuses particularly on the extent to which the Act's enforcement regime sufficiently enforces the law for the poor. The Article responds to the frequent contention that private enforcement of statutory regimes is necessary to compensate for the shortcomings of public enforcement. Public enforcement, the story goes, is inefficient and relies on underfunded, captured, or impotent government agencies, while private parties are appropriately incentivized to act as private attorneys general. This Article challenges that argument as not applicable to all circumstances. Instead, it uses the IDEA to identify certain features of institutional design that can make heavy reliance on private enforcement lead to predictable disparities in enforcement in favor of wealthier beneficiaries as opposed to poor beneficiaries, in contravention of the stated goals of some statutes. These features of institutional design include universal rather than means-tested service provision distributed by relying on nontransparent, nonprecedential, private bargaining over a highly individualized system where the contours of the right are determined through significant amounts of agency discretion. Where these features are present, the Article argues, greater attention to public enforcement, as opposed to private enforcement, is likely to be necessary if the goal is to avoid enforcement disparities in favor of wealthier beneficiaries. Alternatively, modifying these features may reduce enforcement disparities and make public enforcement less necessary. INTRODUCTION I. THE PROBLEM OF DISPARITIES IN PRIVATE ENFORCEMENT OF THE IDEA A. The Legal Framework of the IDEA's Enforcement System B. Enforcement Disparities C. Why Enforcement Disparities Matter II. INSTITUTIONAL DESIGN AND DISPARITIES IN PRIVATE ENFORCEMENT OF THE IDEA A. Institutional Design B. Information Asymmetries C. Externalities D. Transaction Costs III. WHY REFORM OF THE IDEA's PRIVATE ENFORCEMENT MECHANISMS Is INSUFFICIENT A. Incentivizing Lawyers by Changing Attorneys' Fees Rules B. Incentivizing Lawyers by Providing Damages C. Providing or Mandating Attorneys D. Bringing Class Actions E. Means-Testing or Eliminating Private Enforcement IV. PUBLIC ENFORCEMENT ADDRESSING THE NEEDS OF LOW-INCOME CHILDREN WITH DISABILITIES A. Rationales for Public Enforcement B. Proposals for Public Enforcement 1. Informational Regulation a. Design Details b. Assessment of Success and Feasibility 2. Monitoring and Investigation a. Design Details b. Assessment of Success and Feasibility 3. Financial Incentives a. Design Details b. Assessment of Success and Feasibility V. ENFORCING STATUTORY RIGHTS BEYOND THE IDEA CONCLUSION INTRODUCTION Scholars frequently focus on the importance of private enforcement of statutory regimes in a variety of fields with a concomitant nod to the limits of public enforcement. (1) They point to the efficiency of private enforcement, since private parties will take action only when the expected value of doing so outweighs their expected costs. (2) They note the significance of private parties acting as private attorneys general (3) and explore how both class actions and serial individual actions can produce policy change. (4) They express concern about relying on underfunded, captured, or impotent government agencies to enforce the law. (5) In turn, this focus on private enforcement results in expressions of dismay at doctrinal and legislative cutbacks on such enforcement; (6) advocacy around creating private rights of action in legislation or permitting private enforcement through judicially implied private rights of action or [section] 1983 suits; (7) and even suggestions that some government enforcement agencies ought to go out of business. …
Publication Year: 2011
Publication Date: 2011-08-01
Language: en
Type: article
Access and Citation
Cited By Count: 11
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