|Learn how to monitor compliance of existing laws or policies, and how to seek and gain enforcement when compliance is insufficient.|
What do we mean by enforcement?
Who is responsible for enforcing laws and regulations?
When might be the best times to seek enforcement of existing laws and regulations?
Why might laws and regulations not be enforced?
How do you seek enforcement of existing laws and regulations?
How do you maintain enforcement of existing laws and regulations?
There was no doubt about it: Patterson Paper Products, Inc. (3P), the largest employer in town, was dumping sludge into the river again. After decades of foul-smelling water flowing through the center of Patterson, decades of warnings to fishermen not to eat the fish they caught, the river had, in the past ten years, been cleaned up. Children waded in it, kayakers braved its white water, and many of its trout ended up on dinner tables. Thanks to environmental laws, the paper mill shipped its waste elsewhere, and the river was no longer an open sewer.
Now, something had gone wrong. The laws hadn't changed. What 3P was doing was still illegal, but no one was doing anything about it. The state agency that monitored pollution in the river didn't seem to be enforcing the anti-dumping laws that were on the books.
The Patterson Environmental Coalition, which had been involved in passing the antidumping law more than ten years ago, was up in arms. At a noisy meeting, members of the coalition decided to try to get the existing laws enforced, and fast, before the river once again turned poisonous.
They were angry, but, at the same time, they knew they had to proceed cautiously. Three P was a powerful economic force in the area, and many of Patterson's citizens worked there. While they wanted the mill to stop dumping, they didn't want it to shut down or reduce production. They had to solve the problem in a way that wouldn't create a worse problem in the long run.
Sometimes, even though laws or regulations exist to keep individuals, institutions, or businesses from harming others, those laws or regulations aren't enforced as they were meant to be. In that situation, it may fall to citizens, as individuals or as members of a group like the environmental coalition in the above example, to call attention to the problem and make sure that the laws are observed. This section will help you decide whether you need to take action, and what kinds of action to take to gain enforcement of existing laws and regulations.
What do we mean by enforcement?
It may seem that this question is unnecessary. Enforcement is enforcement, right? If someone's violating a law, and the law specifies the penalties for that, then what's left to discuss?
Actually, there may be quite a bit left to discuss. Sometimes there are circumstances that make absolute, strict enforcement of a law unfair. What if the violation was an accident, or if the violator isn't actually at fault?
A situation currently exists, for instance, where a law governing superfund sites states that anyone who produced the waste dumped at such a site is responsible for paying for the site's clean-up. In one particular case, when a licensed hazardous waste disposal company didn't do its job, many small businesses - mom-and-pop gas stations in particular - were asked to pay enormous sums to clean up waste that they paid the licensed company to dispose of properly.
Many of these businesses will be forced into bankruptcy if the fines are collected, even though they did the right thing in the first place by hiring the licensed company to dispose of their waste the way the law required. Strict enforcement of the law here seems obviously unfair, and of little benefit to the public.
Another problem posed by strict enforcement in a situation like the one above is that a law that exists for a good purpose - the cleanup of environmental hazards - can be seen as a bad law and a candidate for repeal because it punishes people who have done nothing wrong.
One remedy, of course, is to change the law, but that's a long-term process. You need action now. There are other ways to think about enforcement, and how you ask for enforcement may determine how it's applied.
- Enforcement of the spirit, if not the letter, of the law. What, in fact, was the law meant to accomplish or change? Are there ways in which it can be used to achieve its ends without hurting anyone unnecessarily?
- Enforcement that deals with the underlying problem. In the example at the beginning of the section, for instance, a judge could order the paper mill to stop dumping, but could also order that 3P work with an environmental consultant to find safe, acceptable, and reasonably cheap ways to dispose of waste.
- Enforcement that works to the benefit of the largest number of people. Enforcement works best when it's a win-win situation. If the violator and the community each gets some benefit from it, it's both more likely to be effective and less likely to cause bad feeling and make permanent enemies.
To use the 3P example again, if the violator is stopped from dumping by having its plant closed, it will hurt the community as much as, or more than, it will hurt the polluter. Rather than putting half the town out of work, it would make more sense to come up with a solution that kept the plant running at full capacity and solved the pollution problem.
Who is responsible for enforcing laws and regulations?
There are various ways to go about gaining enforcement of laws and regulations, but almost all of them involve at some point contacting the government agency or department in charge. It's not always easy to figure out which that is, however. In the tangled web of interrelated agencies, bureaus, federal, state, and local departments and boards, it may be difficult to find the particular level or person who is in charge of the enforcement you're seeking. You may be passed from office to office before you find the right one. Be persistent, and you'll find the right place.
The first step is to know the source of your law or regulation. For people working in the United States, laws will originate at either the federal, state, or local level. Once you know where the law comes from, you can follow the guidelines below.
General guidelines for finding the right entity to enforce the rules
For federal laws and regulations
The federal level can be the most confusing, for at least two reasons.
First, many federal laws and regulations are in fact enforced by the states... but many aren't. Most federal bureaus and agencies have offices in the states, and some either have no state equivalents, or work independently of them. It's sometimes difficult even for the bureaucrats to tell who's in charge of a particular area.
The other reason is that there's so much overlap among agencies. Some environmental laws, for instance, may be administered by the Environmental Protection Agency, others by the Department of Agriculture, others by the Corps of Engineers! Finding out which agency is directly responsible can be a puzzle.
Some federal agencies, like the Interstate Commerce Commission (ICC), the Federal Communications Commission (FCC), or the Bureau of Alcohol, Tobacco, and Firearms (ATF), have specific powers that only they can exercise. Others, like the Department of Health and Human Services (HHS), depend largely on state agencies to carry out programs and enforce laws and regulations.
Make sure you have a copy of the law. The wording of a federal law itself will tell you which agency is officially in charge of enforcement. Contacting that agency is the place to start, but you may find yourself directed to a state agency that handles the issue.
For state laws and regulations
Each state has its own set of laws and regulations covering many of the same areas as the federal government's. These may be more or less lenient than the federal, or may address different issues. Most California environmental laws, for instance, are far stricter than the federal laws covering the same activities, and some refer to areas that federal laws don't include at all.
State laws and regulations are generally handled by the state agency in charge, but, as in the case of federal agencies, there's often a good bit of overlap. In addition, since each state has its own administrative structure, a law that's handled by a particular agency in one state - the Department of Public Health, say - might be handled by a totally different agency in another - the Department of Environmental Management, for instance.
Once again, a reading of the law will tell you which agency is responsible for enforcement, but won't tell you how it's actually handled. You'll have to go to the agency for that information.
For local ordinances and regulations
Local laws are generally the responsibility of the county or community boards that oversee the area they pertain to. Non-smoking ordinances in restaurants are ordinarily enforced by Boards of Health, for instance. A trip to the city hall or the county administrative office will usually tell you which board or officer to contact about a particular ordinance.
Professional regulatory associations
There is one other kind of enforcement body that should be mentioned here: the professional or licensing association. The American Medical Association, the American and state Bar Associations, the American Psychological Association, and many others are made up of professionals in their particular fields, and oversee much of the licensing and regulation of the profession. The licensing exams that lawyers take are conducted by their professional (i.e. bar) association, as is the licensing procedure for psychologists.
In cases of violation of the ethical or competency standards of a profession, it is usually the professional association that polices the situation and decides on guilt and punishment. Where you're dealing with ethical violations by an individual - discrimination by a physician, for instance, or the sexual exploitation of clients by a mental health professional - you may have to approach the professional association. Its ethical standards can often be used to address areas not covered by the law, or in addition to the law, and to both stop current violations and prevent future ones.
Another kind of professional association is the Better Business Bureau and its relatives, organizations that have no specific power to regulate, but that can advise the public about whether a business or non-profit is trustworthy and competent. It may not be against the law to spend less than half the money you collect directly on the charity for which you collected it, for instance, but it's also not against the law for someone to tell the public when you do.
When might be the best times to seek enforcement of existing laws and regulations?
The simplest answer here is "when they're being violated, " but there are times when enforcement is particularly necessary or likely.
- When an appeal to violators has been ignored. As we'll discuss below, the simplest means of enforcement is to convince violators that it's in their self -interest to obey the law. When they don't respond to that argument, however, and ignore requests to stop their violations, it's time to seek more formal measures.
- When new information or a new situation has shed light on or created a problem. A new study or government report may uncover previously hidden violations, for instance. A corporation may have just started illegal activity, or an agency may have suddenly stopped enforcing a particular regulation. These situations call for action.
- When public pressure has built to the point where lack of enforcement can no longer be ignored. If particular violations have been ignored for a long period for political or economic reasons (see below), the public may decide it has had enough. At that point, appeals for enforcement are apt to be attended to.
Why might laws and regulations not be enforced?
Understanding why a law or regulation is not being enforced will help you decide how to go about getting it enforced.
Violations might be unknown
Many violations of laws or regulations are subtle, or happen in out-of-the-way places, or are covered up by clever bookkeeping or other methods. It's common for even a serious violation to go undetected for a long time.
The enforcing agency may not have adequate resources or personnel to enforce the laws
At all levels - federal, state, and local - agencies are often underfunded and understaffed. There are often too few inspectors to find more than a small percentage of violators, and not enough enforcement officers to deal with violators once they 're found.
Violations might be known, but not deemed serious enough to address
If understaffed agencies have to make choices about which violations they'll enforce, they will generally choose only those they judge most severe or harmful. Less dangerous or less blatant violations are often ignored.
Violations might be known, but enforcing them might be seen as too damaging to the economy, or too politically risky As we pointed out above, a polluter might also be the largest employer in the community. A powerful political figure may be closely connected to - or economically beholden to - a corporation or individual that violates various laws. The jobs of the agency head, and perhaps many others in the agency, as well as its funding, may be dependent on ignoring violations in these circumstances.
There might be outright collusion between the violators and enforcers.
This collusion could take several forms:
- Bribery. The violator might simply be paying enforcers to look the other way. The risk to both the violator and the enforcer here is great - bribery is a crime, and they could go to jail - but so might be the rewards.
- Personal loyalty. Violators and enforcers might be connected through an "old-boy (or old-girl) network, " or simply be friends, or even relatives. In some cases, this might be considered a conflict of interest on the part of the enforcer, but in many it would not.
- Political pressure. Enforcers may be told directly by superiors, by legislators, or even by the White House to ignore violations on the part of an individual or corporation that's a large campaign donor or is otherwise politically well-connected.
- Conflict of interest. Local government figures may have investments in a polluting factory, or relatives who work there. It would then be in their or their family's financial interest not to enforce laws that harm the factory's bottom line.
The enforcers might not care
They might see the problem as one that doesn't affect them directly, and therefore makes no difference, or they may be ignoring violations because they don't agree with the law in the first place. Either of these is a failure to do their jobs, but that may not be uppermost in their minds.
Agencies might be trying to enforce the law, but violators might not care
Often the penalties for flouting laws - environmental laws particularly - are simply not serious enough to make obedience worth it to large violators. If a factory can save millions annually by dumping illegally or discharging poisons into the air, paying a fine of a few thousand dollars is more than worth it. Enforcement is impossible without teeth.
How do you seek enforcement of existing laws and regulations?
There are two phases of actually seeking and gaining enforcement. The first involves doing some research, and learning what you'll need to know. The second is a series of steps, each of which may gain you the enforcement you want. Each step is to be taken only if the one before it doesn't work, and the order described here is from the most desirable and least disruptive to the least desirable and most disruptive.
That doesn't mean that the most desirable will necessarily be the most effective, but rather that the most desirable causes the least amount of trouble and bad feeling in the community, and the least desirable does the opposite. The reasoning here is that the less the violator is damaged, the more willing he'll be to support health and community development initiatives. It's almost always better to create an ally than an enemy.
There are exceptions to this rule. Some corporations, for instance, especially those with no real connection to the local area, couldn't care less about the communities in which they do business. They see their time there as limited, and are not concerned with the harm they may do to the local health or environment in that limited time. If that's who you're dealing with, and it's clear that they have no interest in the well-being of the community, then there may be no point in trying not to alienate them. They'll play hardball - you better, too.
The same is true if the violation is flagrantly criminal. There are some situations in which cooperation is simply not an appropriate strategy.
Regardless of what the issue is and who your adversaries and allies are, one element of seeking enforcement for existing laws and regulations is always relevant: prepare to keep at it forever. If you win this battle - or if you lose it, for that matter - there will still be others. Times and conditions and the political climate all change, and those changes often bring changes in laws, policy, and public opinion. You'll undoubtedly face this or a similar issue again. A huge percentage of success in changing or maintaining any public policy is accounted for by showing up... again and again and again.
What you should find out before you start:
Know the relevant laws and regulations inside out
- Understand their purpose and intent. What exactly were they meant to regulate, and in what way? What is the spirit of the law? What is the result that they were meant to achieve? Whom were they meant to benefit, and how? What is the philosophy behind them? Why were they phrased the way they were?
- Understand their provisions. Who is subject to the laws? What are the exceptions? What exactly constitutes a violation? What is the geographical area covered? Are the laws permanent, or time-limited? Do their provisions change with time? If so, where are you in the cycle? Do their provisions make for unintended consequences?
- Understand their penalties. What exactly are the maximum and minimum penalties for violations? Are they the same for everyone, or are they proportional, depending upon the violation and the financial or other responsibility of the violator? How is fault determined? Who will (actually - not necessarily according to the intent of the law) lose and who will (actually) gain through the penalties imposed? What are the intended consequences? Are there unintended consequences? Are the penalties adequate to assure obedience to the law?
Learn whatever background information you need
If you're concerned with environmental violations, for instance, it's important to understand enough of the science behind them to talk intelligently with regulators and violators, to explain the arguments for enforcement to bureaucrats and the public, and not to be fooled by faked or incompetent "scientific evidence." You don't need a doctorate in chemistry, but you do need enough knowledge to be taken seriously and to understand the issue clearly.
Know the history and context of the violation and its enforcement
- How long has this been going on?
- Is it common knowledge in the community? Among enforcement agencies?
- Have there been past attempts at enforcement? What happened?
- Why is the law not being enforced now?
- If past practice didn't include enforcement, what made that acceptable to the public and the regulating agency?
- Why does this violation seem to be going on? How does it benefit the violator? Does it benefit anyone else?
- Whom does it harm? In what way?
The answers to these questions will give you a sense of whether or not you have an uphill battle to fight to gain enforcement. They'll also probably tell you who your allies and adversaries are, and give you some idea of how to proceed if you're to have any chance of success.
Learn about the organizations involved
Most of this section is based on the assumption that violators will generally be organizations of some sort - corporations, institutions, government agencies, non -profits, etc. There are obviously cases where violations are largely individual - child abuse, drunken driving, racial or gender discrimination by individual physicians or other professionals - and are not enforced. Except where noted, the procedures for seeking enforcement are generally similar.
- The violator. Who owns the corporation/institution/organization? What does it do? How is it run - what's the structure and hierarchy? Who's actually in charge? What's its history in the community (and elsewhere, if it has several sites)? Does it have a history of this type of violation? If it's a large corporation, what other companies does it own?
- The regulatory agency. What is its mission? What is its structure, and how is it run? What are the rules for formal procedures - complaints, grievances, etc.? What's its record for effectiveness, aggressiveness, and success in enforcing laws and regulations?
Determine whom to contact about enforcement
As with so much advocacy work, a key here is personal contact. It's important to make connections with the individuals involved, so that you're more than just a name, or - worse - an annoyance. You'll want to know not just the position, but the actual person who's responsible for overseeing this issue, both at the violator's end (assuming the violator is an organization of some sort, rather than an individual) and at the regulatory agency. And you might want to meet and talk to them, informally, before you get involved in formal petitioning or negotiation.
If the violator is an individual, talking to him may not be in the cards, depending upon the nature of the problem. It's unlikely that discussing the issue with a domestic abuser, for instance, would be either particularly effective or completely safe. The owner of a small store who seems to treat customers differently based on their race might be more approachable... or might not. This is where understanding the history and the context of the issue becomes important.
In the violating organization, you'll need to find out who's in charge of the area in which the violation is taking place, but also who actually makes the decisions that that person oversees. It may be the person herself, or it may be someone higher up in the organization. In any case, it will ultimately be the decision maker whom you'll have to deal with.
In the regulatory agency, the issue may also be complicated. Final decisions might be made by an administrator, but it may be the people in the field - inspectors, case workers, nurse practitioners, etc. - who decide what information that administrator gets. In that way, they might have as much control over those decisions as she does.
Steps to take to gain enforcement of existing laws or regulations.
Each step should be taken only after the one before it has failed to produce results.
Step 1. Start at the level closest to the problem, i.e. with the violator.
The idea here is that if you can convince the violator to change voluntarily, everyone is better off. There's no great disruption in his organization, regulatory agencies don't have to get involved, and the community will benefit. In the ideal, this could be a relatively informal contact. Given the nature of many organizations, you may in fact start with someone other than the person you actually need to speak to, and have to make a number of appointments before you get to him. (There is also the possibility that no one will speak to you at all, but it's worth the try.)
For all of these meetings - whether it's one or several - it's important to be cordial and polite. Don't assume ill will on the organization's part: if there is any, you'll find that out soon enough. You're much more likely to get cooperation if you're friendly and not accusing the person you're talking to of being a criminal or a monster. Invoking shared values ("I know we both want what's best for the community ") is one way of emphasizing common ground rather than differences, which may be helpful.
There are some elements that ought to be part of the conversation, however:
In all of the following scenarios, it's important to record in writing what went on. The date and time, name(s) of those you spoke with, what was said, what, if anything, was decided - all of these can be important in drafting or holding someone to an agreement, or in a lawsuit. Take careful notes.
- Explain the problem, referring to the laws. Again, don't accuse. Stating the problem as such, and using "we" may help make the situation feel less tense. ("We seem to have a problem. X is happening here, and it's having an effect on some of the folks in the community. We ought to be looking at it.")
- Explain clearly the result you want. If you're unclear, you can get involved in a game of "But I did what you wanted!" Be specific about what you want the violator to do or stop doing.
- Offer to work with the violator to reach a reasonable solution, if that's appropriate.
- Set a deadline for action. This can be done jointly ("When is a reasonable time for you to be able to start implementing this?"), but is absolutely necessary. It can't be left that something will happen sometime.
- Explain politely that if the violator won't cooperate, you're prepared to go to the next level and seek enforcement.
Rather than couching this as a threat, simply state it as a fact. You can also state your preference for solving the problem cooperatively. ("This situation has to be resolved. It would be better all around if we can do it together, without getting the regulatory agency involved, and I'd certainly prefer to do it that way. That's why I came to you first. But if we can't come to some agreement, the agency is my next stop."
Step 2. Meet with the enforcement agency to report the violation.
Your research should have told you which individual in the agency to meet with. In the case of many federal and state agencies, you may report violations via e-mail or over a telephone hotline. If you're fairly sure that this will get results, then it's a convenient way to go. If, however, you're addressing an ongoing problem and you want to have some contact with an actual human being, a meeting is a better strategy.
What your meeting should cover:
- Describe the violation in as much detail as possible. Your description should include (to the best of your knowledge) the violator, the nature of the violation, how long it's been going on, times and places it has occurred, the relevant law being broken, and the effect on or danger to individuals or the community.
- Ask for action. As with the violator, be specific about what you want the result of action to be.
- Find out what will be done, and by when. Be persistent. Agencies are often reluctant to commit themselves either to a particular course of action or to a time limit.
- Ask to be told when action has been taken, and to be informed about the result.
If the agency can't or won't take any action, go to Step 3.
Step 2a, 3a, 4a or 5a: Go public.
If you still see no action after taking this step or any of the steps below, you have a decision to make. One of the steps you can take at any point in this process is to go public, particularly through the media, and try to arouse the community. The target of your publicity may be the violator, an enforcement agency that's not doing its job, or both.
The ultimate goal of media and other public attention is to stop the violation, but it usually has other consequences as well. At its best, it can serve to educate the public to the issues surrounding the violation. It can counter the arguments made by the violator or the agency that no violation exists, or that the violation isn't serious.
On the negative side, publicity may make it harder to reach a solution. It can embarrass its target, and brand it as incompetent, evil, or worse. And, in calling attention to the violation, it can make it politically impossible for the agency to work out some alternative solution with the violator.
The media and public opinion are powerful tools. They can serve your advocacy effort well, and you should use them. But you have to be aware of the possible consequences when you do. You may need the violator and/or the regulatory agency as allies for work on this issue in the future. Are you willing to alienate them now?
At what point is stopping the violation more important than maintaining community harmony? If people's lives or health or livelihoods are clearly in danger from a violation, that point is very early in the process, perhaps even at the beginning. If the violation has a less immediate effect, you might want to wait longer before going public with the issue.
On the other hand, if the situation is one of those where there is collusion between the violator and enforcer, or where political or economic pressures are preventing the enforcing agency from doing its job, going public may be the best - indeed, the only - way to expose the sleaze, and force the parties to act in the public interest.
The Tool Box doesn't advise any particular course here. Your action has to depend on the issue itself and your knowledge of your community. If you do decide to inform and mobilize the community, there are at least three things you can do:
- Alert the media. Use press conferences, contacts with individual reporters and editors, letters to the editor, op-ed pieces, etc. to get the word out through all the media channels.
- Hold public meetings and other events to get the word out.
- Use posters, fliers, local newsletters, websites, etc. to inform the public.
Step 3. File a formal complaint.
Your research should have acquainted you with the agency's formal complaint procedure. If you don't file the complaint exactly right - and that often includes timing (within a certain time period after the violation, for instance) - you could run into problems later. The complaint may not be able to be used if there's legal action; or you may have to refile it, losing time and momentum.
Step 4. Take your complaint to the next level.
If your complaint goes nowhere, you may be able to carry it farther up the ladder yourself. That might mean going directly to the head of the agency; going to a community or other oversight committee; going to the mayor's or governor's office; or going to an agency that oversees the one in question.
Step 5. Apply political pressure.
If you've done your work in other areas of advocacy, you may be able to move the regulatory agency through local officials; state or federal legislators; the state or federal cabinet office under which the agency operates; or the office of the county administrator, mayor, or governor.
The author once had the experience of asking a state agency to restore program funding which had been cut inadvertently. I arrived in the commissioner's office accompanied by two state representatives and a state senator. One of the legislators opened the meeting by saying "We want some money." The commissioner's response was, in essence, "How much, and to whom shall I make out the check?" Political pressure can be very effective.
Step 6. Take direct action.
By this point, going public is no longer optional. Now, if not before, you should be beating down the doors of every media outlet you can reach, and informing the public by any other means at your disposal. Both of the strategies listed under this step in fact require media attention and public pressure in order to succeed.
There are a number of possibilities here, but the two major ones are:
- Hold public demonstrations. These should be attention-getting, relevant to the issue, and designed to attract as many people and as much media attention as possible.
- Institute a boycott. If it's appropriate to your situation, a boycott can be a potent political and economic weapon. Boycotts, when they're successful, serve a double purpose. They both call attention to your group and your issue, and hit the violator where it hurts - in the pocketbook.
Step 7. Take legal action.
Some quick definitions here:
Sue: To sue means simply to file a civil (non-criminal) case against someone in court. Although the word is often used as if a lawsuit always involves money, it may not. (To sue literally means "to ask" or "to beg". A "suitor" asks a woman to marry him.)
Plaintiff: The party that sues. (The one who issues a "plaint, " or complaint.)
Defendant: The party that is sued. (The one who "defends " against the complaint.)
Depending upon the situation, there are a number of possibilities for a lawsuit here. You can sue the violator under the law you've been trying to enforce, or under some other statute. Some examples for the latter:
- Danger to public health or safety.
- Civil rights violations.
- Sexual harassment.
In addition, you might have the choice of suing for a particular result, such as a stop to an illegal practice; for money damages, either to pay back real costs (including your lawyer's fees), or to pay as a penalty for ignoring the law and harming the community; for the government to fine the violator; or for the violator to perform particular services to the community, or repair whatever damage it caused.
Another possible choice is to sue the government - in the form of the regulatory agency, or in the form of its parent body - for not doing its job. There may be different purposes here: to force the agency to enforce the law; to change the agency's structure so it is better equipped to enforce the law; to increase the agency's resources so it can enforce the law more vigorously and widely; to expose conflict of interest or criminal activity on the part of specific people in the agency; or even to highlight the need for a change in the law itself.
You might sue, either alone, or with a small number of other individuals or organizations, on your own behalf. But you might also try to initiate a class action suit, where the legal action would represent a whole class of people - passengers on a particular airline, a racial group, people who have undergone a specific medical procedure, or smokers, to name a few groups represented in recent suits - who have been harmed by the violation.
A lawsuit may be the step that most quickly comes to mind when you think of enforcement, but it's the last step here.
We see it as a last resort for several reasons:
- Lawsuits can be incredibly expensive. Unless you have very deep pockets, or can find a lawyer or law firm that's willing to risk a huge loss (often millions of dollars in the case of a large class-action suit), you might as well not bother suing a large defendant. Governments and big corporations have lawyers or law firms on staff, and they have more money than you do. Their lawyers are very good at dragging these cases out to make it as expensive as possible for the other side. If you win, there's a chance you can convince a judge to make the defendant pay your legal bills. If you lose, you - and probably your lawyer - are out of luck.
- Lawsuits - even those against smaller defendants that you might be able to afford and win - take a long time. If the situation you're concerned with is one that needs to be fixed immediately - if people are being physically, psychologically, or economically injured - you don't have the time to spend years in court, unless you're trying to create some permanent and far-reaching change. (The decisions in many cases that set important precedents - including Roe v. Wade, the case in which the Supreme Court supported a woman's right to choice - took place long after the reason for the suit was still an issue for either side.)
- It may be hard to prove standing. In order to sue, you have to show that you have standing in the case, i.e. that you're directly affected in some significant way. If you're just an interested party, or one that wants justice, that's usually not good enough. It may be hard to find someone with standing who's willing to be the plaintiff, especially if the violator controls many of the jobs in the community.
- If anyone on your side has ever broken the law or done anything the least bit questionable, it may be brought out in court. Tax records, extramarital affairs, drunken driving arrests - all can become fair game under certain circumstances.
- There's no guarantee that, after all the time and money, you'll win, or that the defendant will settle in a reasonable way.
Most cases of this sort, especially those involving large organizations, institutions or corporations (or insurance companies) never in fact get to court. If the defendant has the slightest fear of losing, it, or its insurance company, will usually offer to "settle, " i.e. to give the plaintiff a certain amount of money (less than the suit calls for) and/or a promise to behave in certain ways. The settlement may also call for complete silence about the facts of the case (not so good if you're trying to change things), or for complete disclosure, or for one party or the other to assume or deny blame.
Almost everyone connected to these cases - with the occasional exception of the plaintiff - would prefer that they be settled out of court. Judges urge the parties to settle, their lawyers operate on the assumption that that's the goal, and it's generally easier for the parties themselves. Both of them save the cost and nastiness of a drawn-out court battle, and the terms of the settlement give each of them some of what they wanted.
All that being said, there are times when nothing else will work. If you've exhausted all the other possibilities, you may have to decide whether a lawsuit is possible for you, and whether it has a chance of success.
How do you maintain enforcement of existing laws and regulations?
Assuming that you have been successful at some level of the process, and that the laws or regulations in question are now being enforced, how do you make sure that things stay that way? The ideal is to negotiate some sort of maintenance as part of the enforcement. Some points that could be discussed might be:
- Inspection or oversight rights for your group or some other mutually agreed upon neutral body. The agreement might include community representation on the inspection team, or might specify expertise (scientific knowledge, for instance) for some members. The agreement might also include a regular (or irregular) schedule for inspection or oversight.
- Availability of the results of inspection or oversight to the public. Results might be published in the paper, be released to the media, or simply be available to anyone who asks to see them (at the public library, perhaps).
- Timelines for accomplishment of specific benchmarks. The agreement might set goals for the future, with deadlines for their accomplishment. A formerly all -white public university, for instance, might be held accountable for increasing its non-white enrollment to 2% after one year, 10% after five years, and 24% (reflecting the state's population) after ten years.
- Appropriate penalties, spelled out and made public, for violations. The penalties might be designed to be harsh enough to assure that the violator continues to pay attention to the law for the foreseeable future.
Even if all these provisions are included in an enforcement agreement, you'll still have to continue to be vigilant. As we discussed earlier, there's never an end to maintaining the enforcement of existing laws and regulations.
When an undetected or ignored legal or other violation is harming individuals or the community, you may have to actively seek enforcement. If you do, it's important to understand the implications of what you ask for. Strict enforcement might not always be the best solution to the problem, and some alternative might be called for.
It's important to know exactly what body is responsible for enforcing the laws or regulations you're concerned with. Laws are not always enforced at the level at which they're passed (some federal laws are enforced at the state level, for instance), and it's not always clear which agency has jurisdiction. At the county and municipality level, it's often easiest to check at the administrative offices to see which board or official is in charge. Professional organizations, such as the bar association, may also have a say in particular situations.
Although seeking enforcement is appropriate whenever there's a violation, it might be particularly appropriate - or welcomed - when the violator is resistant, when new information or new circumstances draw attention to the violation, or when the public becomes exasperated with the situation.
Often, when violations of laws or regulations aren't addressed, the reason is that they're undiscovered, or that the oversight agency hasn't the resources to investigate or pursue them. Other reasons might include bribery or other dishonesty on the part of the violator, the agency, or both; conflicts of interest; economic considerations (when a polluter is also a town's largest employer, for example); or pressure on the regulator from politically powerful people or organizations.
In order to seek and gain enforcement, you have to educate yourself to the law; to the appropriate background information (science, medicine, social issues, etc.); to the structure and operation of both the violator and the regulatory agency; to the context and background of the issue in the community; and to the specific individuals, in both the violating and regulatory organizations, who would be the most effective to negotiate with. Once you've done that, you're ready to start the process of gaining enforcement.
Each of these steps might be effective in itself; the next step is to be taken only if the one before has failed to achieve your purpose. (At any point in the process - from the beginning if you know there's collusion or dishonesty involved in the lack of enforcement - you may want to bring in the media, and use other methods to inform and mobilize the public on the issue.)
- Approach the violator, and see if you can convince him to stop the violation voluntarily.
- Report the violation to the regulatory agency.
- File a formal complaint with the regulatory
- Bring your complaint to the next level.
- Apply political pressure.
- Take direct action.
- Take legal action.
As with any advocacy activity, even after you've achieved your goal, you have to maintain both your vigilance and your activity to make sure that enforcement continues indefinitely. Your work as an advocate is never finished.
Examples of web sites of government enforcement agencies.
Information on equal opportunity enforcement from the Equal Employment Opportunity Commission.
The Federal Communications Commission Enforcement Bureau. Includes instructions on filing consumer complaints.
Berkowitz, B., & Wolff. T. (2000). The Spirit of the Coalition. Washington, DC: American Public Health Association.
Meredith, C., & Dunham. M. (1999). Real Clout. Boston: The Access Project.