Politics, economics, and technology have conspired to make this an exceptionally challenging time for American higher education. Some critics claim that costs are out of control in traditional public and private nonprofit higher education. They believe these institutions will soon go the way of the railroads as for-profit institutions displace them and the Internet replaces college campuses and classrooms. Other critics bemoan the privatization of higher education and the increasing role of market forces. Still others think higher education has lost its way and fails to focus on educating undergraduates.

Our aim in this article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of an enforcement strategy and, in the case of private enforcement, are critical to the efficacy of a private enforcement regime. We then turn to the business of institutional architecture, describing the considerations—both in favor of and against private enforcement—that should affect the choice of an enforcement strategy. We lay out choices to be made about elements of a private enforcement regime, attending to the general legal landscape in which the regime would operate, particularly court access, as well as how incentives for enforcement interact with the market for legal services, which has important implications for private enforcement activity. We situate these legislative choices about private enforcement in the context of institutions that shape them. Finally, we seek to demonstrate how general considerations play out by examining private enforcement in two policy areas: legislation proscribing discrimination in employment, and laws protecting consumers from unfair and deceptive practices.

A vast literature argues that the majority party in most legislatures enjoys a policymaking advantage through its access to gatekeeping institutions that let it block bills from reaching the floor. However, agenda-setting institutions vary substantially across legislatures. We propose that this variation should have demonstrable consequences for the majority party’s influence. In this article, we develop hypotheses about the institutional features of legislatures that enable the majority party to block bills. Then, we canvass all 99 U.S. state legislative chambers to measure whether those institutions are present and test whether they lower the rate at which the majority party is rolled. We find that in legislatures where majority-appointed committees can decline to hear bills or decline to report them to the floor, or where the majority leadership can block bills from appearing on the calendar, majority roll rates are significantly lower than in legislatures where those veto points are absent.