Over-Enforcement

The evolution of over-enforcement is impacting various issues including the False Claims Act, the Foreign Corrupt Practices Act, and State Attorneys General.  Recently released research, Enforcement Gone Amok: The Many Faces of Over-Enforcement in the United States frames the over-enforcement landscape:

All elements of American society benefit when the legal system is used as intended by our Founders—namely, to prosecute and punish genuine wrongdoers whose actions have violated the law and caused injury or damage, guided by due process and the Eighth Amendment principle that the punishment should fit the crime. However, recent events have shown that government enforcement actions increasingly overstep reasonable bounds. read more...

Other notable points include:

  • Over-enforcement occurs when individual government agencies exercise unfettered discretion to rely on novel or expansive interpretations of laws to coerce settlements. Companies that are targets of this practice cannot be certain that the courts will set aside these actions, given the often vague and broad statutory language that confers authority on these agencies.
  • Over-enforcement also occurs when the prosecution of wrongdoing is carried out by multiple regulators conducting duplicative investigations and legal actions, either simultaneously or in succession, which are directed at the very same conduct. Faced with these multiple assaults, companies often have little choice but to agree to whatever settlements those various government officials demand, even if the company has meritorious arguments against the underlying charges.
  • One consequence of both coercive and “pile-on” over-enforcement is large and duplicative fines and penalties that too often are disproportionate to the alleged wrongdoing. The fact that over-enforcement targets are typically corporations and not individuals does not excuse the abusive nature of the practice—“justice for all” must apply across the board.


Critical Reforms Road Map

Limits on multiple, duplicative investigations and prosecutions are essential to preserve fairness in our system of justice and our overall economy. One way to control government overreaching in this context is by ensuring that enforcement officials’ discretion is appropriately channeled in order to reduce their ability to make unjustified prosecutorial decisions. This should include:

  • Clear rules of the road so that individuals and businesses know what is legal and what is not, and prosecutors cannot impose retroactive liability based on vague standards.
  • Defendants should be given a fair chance to defend themselves, rather than being subjected to multiple, overlapping enforcement actions that leaves no choice and results in an unfair and unjust settlement.
  • Punishments should fit the offense and prohibit excessive demands that coerce settlements from the innocent.


Click below for detailed information on issues impacted by over-enforcement:

Research

West Virginia's Climb: Lawsuit Climate Progress in the Mountain State and the Path Ahead

January 10, 2018 | West Virginia has begun shedding its reputation for having one of the worst civil justice systems in the nation. The state's lawsuit climate ranked dead last or second to last in surveys of business executives and attorneys conducted eleven times over the past fifteen years--until 2017. This report explores the beginning of the state's encouraging transformation and highlights areas where it may continue this progress.

Big Bucks and Local Lawyers: The Increasing Use of Contingency Fee Lawyers by Local Governments

October 26, 2016 | The increasing use of contingency fee counsel by local government entities is a disturbing trend that poses real risks to the fair and impartial administration of justice.

Additional Resources

All Results for Over-Enforcement

Time to Fix the False Claims Act

Author: Matt Webb, Senior Vice President, Legal Reform Policy | November 15, 2013 | News and Blog

A new ILR report argues that the False Claims Act, while good at encouraging frivolous litigation, is simply ineffective at preventing fraud. Read More »

Congress Should Take Action to Address Regulatory Over-criminalization

Author: Lisa A. Rickard | October 30, 2013 | News and Blog

The U.S. House Judiciary Committee's bipartisan task force on over-criminalization today continued what The Wall Street Journal has called, "the most expansive re-examination of federal law since the early 1980s" by holding a hearing on criminal enforcement of federal rules and regulations. Read More »

Legal Reformers Must Act to Heal the Lawsuit System

Author: Lisa A. Rickard, President, U.S. Chamber Institute for Legal Reform | October 23, 2013 | News and Blog

By being proactive and persistent, we can achieve a healthy lawsuit system. Read More »

U.S. Chamber Proposes Code of Conduct for State AGs

October 23, 2007 | Press Release

WASHINGTON, D.C.-In response to what it sees as improper practices by some officials, the U.S. Chamber Institute for Legal Reform (ILR) issued a new set of ethical standards for state attorneys general today, and will urge its voluntary adoption.

"This proposed code of conduct balances the ability of the AGs to pursue wrongdoers while protecting the due process rights of the targets of the investigation and litigation," said ILR president Lisa Rickard in remarks at the Chamber's 8th Annual Legal Reform Summit. Read More »

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