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Event Governance Civil Justice

Regulation Through Litigation: Assessing the Role of Bounty Hunters and Bureaucrats in the American Regulatory Regime

Tuesday February 2000

Opening Letter

In modern life, there are two obvious ways to address threats to human health and safety that may be presented by private commercial activity. One is by litigation, whereby an individual who has been harmed by private conduct sues a business for compensation under common law (or perhaps even statutory) tort liability principles, with the additional objective of creating incentives for businesses to behave differently in the future. The other possibility is through the regulatory state, whereby the government promulgates rules ex ante and an agency then investigates, judges, prohibits or requires certain conduct in the future, and sometimes awards compensation for harm. Both regimes can serve as regulators who set standards for reasonable conduct. But, how do we prioritize, coordinate, or integrate these two institutions to achieve the desired end? How well suited to the task of standard setting and technical evaluation is the tort system? And, under what circumstances do marketplace forces provide all the incentives necessary to alert the public to possible harms and deter businesses from undesirable activities?

To respond to these questions the Manhattan Institute, The Federalist Society and the U.S. Chamber of Commerce held a conference on the subject in February 2000.

This conference was the second in a series of conferences on the newest wave of legal reform issues. The first, Regulation by Litigation: The New Wave of Government Sponsored Litigation was held in June 1999. The transcript of that conference is available on request.

The conference sponsors wish to thank Kim Kosman, once again, for her superb editing services. We also wish to thank the panelists and moderators for their thoughtful, insightful dialogue.

Judyth W. Pendell, Director, Center for Legal Policy, The Manhattan Institute
Leonard Leo, Director, Lawyers Division, The Federalist Society
James Wootton, President, Institute for Legal Reform, U.S. Chamber of Commerce