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Abstract

In recent years, a growing chorus of commentators has called on Congress to vest agencies with litigation “gatekeeper” authority across a range of regulatory areas, from civil rights and antitrust to financial and securities regulation. Agencies, it is said, can rationalize private enforcement regimes through the power to evaluate lawsuits on a case-bycase basis, blocking bad cases, aiding good ones, and otherwise husbanding private enforcement capacity in ways that conserve scarce public resources for other uses. Yet there exists strikingly little theory or evidence on how agency gatekeeper authority might work in practice. This Article begins to fill that gap by offering the first systematic study of an often invoked but little studied example: Department of Justice (DOJ) oversight of qui tam litigation brought pursuant to the False Claims Act (FCA). Using an original dataset encompassing some 4000 qui tam lawsuits filed between 1986 and 2011, this Article offers evidence on numerous issues that have occupied recent judicial, scholarly, and popular debate, including the extent to which DOJ utilizes its various oversight tools, the mix of factors that drives DOJ intervention decisions, and whether DOJ’s seemingly powerful impact on case outcomes can be ascribed to its merits-screening or meritsmaking role. The analysis mostly rejects heated claims that DOJ decisionmaking has a partisan political cast or is unconnected to case merit. At the same time, however, it uncovers substantial evidence that DOJ makes case decisions strategically, separate and apart from pure merits considerations, in response to simple resource constraints, judicial threats to its ability to police collusive relator–defendant settlements, and the identity (and corporate power) of the defendant. These findings have important implications for judicial evaluation of qui tam suits as well as leading FCA reform proposals. More broadly, the analysis opens up new theoretical and empirical avenues for thinking about optimal regulatory design at the border of litigation and administration, with applications well beyond the FCA.

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