Returning Separation-of-Powers Analysis to Its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Fines

December 2000

Citation:

ELR 11081

Issue

Author

Peter M. Shane

In thoughtful dicta uttered 60 years ago, Justice Frankfurter observed that even a legislature clear as to its regulatory objectives faces hard choices in selecting remedies for the implementation of those objectives:

How to effectuate policy—the adaptation of means to legitimately sought ends—is one of the most intractable of legislative problems. Whether proscribed conduct is to be deterred by qui tam action or triple damages or injunction, or by criminal prosecution, or merely by defense to actions in contract, or by some, or all, of these remedies in combination, is a matter within the legislature's range of choice. Judgment on the deterrent effect of the various weapons in the armory of the law can lay little claim to scientific basis. Such judgment as yet is largely a prophecy based on meager and uninterpreted experience.¹

The author is Visiting Professor of Law and Public Policy, H. John Heinz III School of Public Policy and Management, Carnegie Mellon University, and Professor of Law, University of Pittsburgh School of Law. The author would like to thank Prof. Gregory P. Magarian of Villanova Law School for his thoughtful comments on an earlier version of this Article.

Returning Separation-of-Powers Analysis to Its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Fines

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Returning Separation-of-Powers Analysis to Its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Fines