Privatizing Public Litigation

Authors

Margaret H. Lemos, Duke Law SchoolFollow

Document Type

Article

Publication Date

2016

Abstract

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into government litigation. It shows that privatization, often touted as a means of improving the efficiency of government services, may have the opposite effect in the context of litigation. Contracting with private lawyers may be more expensive than keeping the work in-house, and accepting private financing may encourage excessive, duplicative government litigation.

Even where the advantages of privatization are most pronounced, significant costs remain. Private attorneys and financiers inject private interests and incentives into government litigation, transforming both the ends sought and the means used to achieve them. One cost of privatization, then, is that it can skew government litigation away from the public interest. That consequence is important in its own right, but it also suggests some of the longer-term risks of privatizing government litigation. Our law reflects the view that government litigation is—and should be—different from private litigation. In various ways, some subtle and others more overt, we privilege government litigation over equivalent suits by private parties. Privatization subverts those practices, allowing private attorneys and interest groups to take advantage of benefits typically reserved for government. While it empowers private interests, privatization simultaneously weakens government litigation, dulling its distinctive features and undermining the justifications for treating it differently. The stronger the resemblance between public and private actions, the harder it becomes to defend preferential treatment for government.

Citation

Margaret H. Lemos, Privatizing Public Litigation, 104 Georgetown Law Journal 515-582 (2016)