By Seth Frotman and Ben Kaufman
Recently, people have rightfully been talking a lot about the need to improve our government’s ability to accomplish its goals—or, to use the buzzier phrase, to build “state capacity.” Given unprecedented crises from affordability to climate change, we will need a government capable of tackling big challenges.
Unfortunately, one of the few things most people can agree on today is that we do not have a government seemingly capable of tackling any challenges or solving any problems. After decades of right-wing attacks on the very concept of government, the landscape is bleak. The law and federal courts are broken and have been weaponized to block anything that might rein in corporate power and abuse. The government’s processes for nationwide economic policymaking have been buried in neoliberal nostalgia for cost-benefit analysis and notice-and-comment rulemaking—processes that, in reality, create veto points that the private sector regularly weaponizes against initiatives it dislikes. Corporate lawlessness has infected nearly every corner of American life. Worse, as the government has proven unable to police markets, stop private-sector harm, and drive systemic reforms, working people have started to doubt whether the “rule of law” and the democratic project that underlies it actually matter. It should not surprise those who spend their days encased in glass think-tanks or gathered around lacquered office conference tables that working people increasingly don’t believe the law works on their own behalf—because they are basically correct.
We must think broadly about how to clean up this mess to restore the promise of the law as a tool that works for everyday people and faith in democracy as a whole. That means building out formal state capacity in the public sector, including establishing a new, robust army of federal corporate crusaders capable of realizing the law’s potential. In other areas, it means eliminating veto points that mainly benefit wealthy special interests. But it also means rediscovering and recentering the ways that citizens themselves can deploy the power of government through the courts—so that they can demand accountability for widespread corporate malfeasance, enforce the law, and shape markets to ensure that they actually work for working people.
That means reinvigorating the key tool that empowers real enforcement of our laws: the private right of action.
Private rights of action are remarkably simple: they are statutory provisions enabling individual people to take companies to court when they break the law. And they are also exceptionally powerful. These tools turn the enormous might of the government through the authority we provide courts into something actually capable of holding massive corporations accountable. With private rights of action, everyday people who have been harmed can demand that companies turn over ill-gotten profits, reveal records of misdeeds that they would rather keep in the shadows, and actually change their behaviors to ensure that they play by the rules.
If the force of those tools seems overstated, consider how normal people recently used private litigation to hold Meta and Google—two of the most powerful corporations in human history—accountable for engineering online platforms to fuel our youth mental health crisis.
Advocates often correctly note that in providing a pathway for real people to have their day in court, private rights of action effectively add key capacity to resource-constrained public enforcers such as state attorneys general. They do so without costing the government or taxpayers any money—in fact, the only people for whom these protections represent a cost are the companies whose misconduct they address. Along the same lines, those rights also make it so that hostile federal regulators, such as the current leadership of the federal Consumer Financial Protection Bureau, cannot singlehandedly shut down consumer protection—including when the public remains able to wield tools the Bureau created when it actually aimed to do its job.
Still, what’s at stake here is much more than the possibility of supplementing public agencies. Instead, private rights of action provide a path for real people to organize and, alongside their fellow citizens, control their own destiny and fight for their shared well-being. They make it possible for those outside halls of power to make the law’s promises real, regardless of who is in office and whom those elites favor. They create a route to justice that cannot be blocked by the calcified corruption and self-serving ideology we too often see across the legal establishment, whose North Star generally appears to be a commitment to elite impunity. That establishment’s decades of unilateral determinations around what constitute “serious” issues in the law have produced a body of doctrine where enforcing basic public protections has become “just not how things are done.” The result has been that working people have been forced to endure catastrophe after man-made catastrophe—from the subprime mortgage crisis to the harms of the surveillance economy and beyond—all while the laws meant to address these problems have withered on the vine.
The ability of individual people to enforce the law is even more important in an economy of “too big to fail” or “too powerful to regulate” mega-corporations. We are now decades into a disastrous experiment where countless companies have built entire business models that depend on breaking the law. These firms and their C-suites have bet that their scale, wealth, and political heft would make public accountability unlikely. Sadly, that bet has largely paid off, and it has done so at the public’s expense. Righteously, courageously, and collectively, ordinary people armed with different incentives and different internal compasses need to be able to fight back.
If it means anything, the law has to protect the people. If that is going to be real, we must give people the ability to use the law to defend themselves. It’s time for Progressives and their allies to realize this lesson and fight back against our disastrous status quo, where enforcement of the law has fallen out of favor. It’s time to restore private rights of action as a bedrock of public protection and a baseline for corporate accountability.
The Rise and Fall of Private Rights of Action
For years, private rights of action were the norm in laws that protected the public. In our field—consumer law—private rights of action have traditionally been the centerpiece of statutes as lofty as America’s fair lending laws and as workmanlike as acts dictating the rules around electronic transactions. High and low, the law enshrined the ability for individuals to enforce their protections.
Yet these tools were never available in only consumer law. Instead, many of the major statutes that prior generations passed to protect the public—from those ensuring fair workplaces to those outlawing anticompetitive or monopolistic practices—enshrined everyday people’s right to take bad actors to court, all without needing to ask permission from or wait for a public agency.
Even better, those laws delivered. In particular, they allowed people to secure relief ranging from injunctions against further bad actions to money damages that address and deter harmful conduct. Just ask Google, Boeing, Volkswagen, Perdue Farms, Purdue Pharma, the National Association of Realtors, the entire tobacco industry, and more—all held accountable by individual people willing to fight for themselves and their fellow citizens.
Given the power behind private rights of action, it should be no surprise that they have been under attack for most of our lifetimes. Well-funded hatchetwork, ideological opposition, and a lack of will among historical supporters have conspired over the past several decades to weaken, limit, and—in too many cases—eliminate these tools. Most notably, private rights of action have come under fire as part of the Chamber of Commerce’s coordinated century-long campaign to capture the courts, academic institutions, and even American culture so as to make them more pro-corporate and anti-consumer. This campaign has many fronts, from the radical reinterpretations of the Federal Arbitration Act, to undemocratic doctrines of standing and statutory damages in federal court, to an apparent, if not yet completed, assault on class actions. But it has taken special aim at private litigation, including by caricaturing “trial lawyers” as people who make their living suing corporations for things that supposedly amount to technicalities. (To be clear, by “technicalities,” the Chamber means actual violations of the law.)
There is no reason we have to take the Chamber and its allies’ anti-consumer narratives seriously on the merits. Does anyone really believe that there is currently too much being done to protect consumers, workers, and everyday people with respect to their data, their livelihoods, and their right to access markets fairly? Are we really worried that corporate profits are not high enough? Can anyone really argue that efforts to stop the public from directly demanding accountability when their family has been harmed help anyone but bad actors? Does anybody actually believe that “trial lawyers” pose more of a threat than Mark Zuckerberg or Elon Musk? And when groups like the Chamber of Commerce specifically say that they stand in blanket opposition to private rights of action around a given issue, shouldn’t that be a signal that a private right of action is exactly what’s needed? People need to begin asking their elected officials loud and clear in red states and blue states alike: which side are you on?
Unfortunately, the Chamber’s assault on private rights of action (and, indeed, its broader, bare-knuckles assault on anything that could hold corporate power to account) has been largely successful. Industry groups and their allies have channeled almost all enforcement into public agencies, where well-paid lobbyists can neuter legal claims and starve public organizations of resources through strategic campaign donations and other pressure tactics. What remains often amounts to little more than public enforcement agencies led by cosplaying partisan warriors running their public protection functions under the direction—and, seemingly, for the benefit—of modern-day Robber Barons. In addition, the Chamber’s advocacy has made it so that key legislation now generally lacks badly-needed private enforcement tools. Even the Dodd-Frank Act, the most important piece of federal consumer financial protection passed in this century, lacks a private right of action. The same goes for laws protecting students from predatory for-profit colleges, protecting people’s financial privacy, protecting patients from insurance companies’ dubious tactics, protecting consumers on issues from data privacy to junk fees, and more.
Sadly, the current path does not appear to involve much improvement. For example, the Kids Internet and Digital Safety (KIDS) Act, which just passed through the House of Representatives, would update the Children’s Online Privacy Protection Act from 1998 and create a variety of new online privacy protections for kids and teens. But it would still leave enforcement in the hands only of government officials, without providing any way for everyday people to bring their own suits to protect their children from now all-too-well-known abuses.
We see this same pattern at the state level, where in too many cases—including recent efforts to expand consumer protections and protect data privacy in New York, as well as a bill to block junk fees in Colorado—elected Democrats have either acquiesced when new bills did not have a private right or have outright intervened to ensure that they would not.
Consider what recently happened in Maryland, a state with unified Democratic legislative control, a Democratic governor with broad political ambitions, and a Democratic attorney general. Maryland decided to take on the issue of so-called “surveillance pricing,” where companies spy on consumers and then figure out the absolute maximum they can charge each individual person. There is bipartisan agreement among elites and the public alike on the need for policymakers to take action against these practices. But when Maryland passed its recent “Protection Against Predatory Pricing Act,” which nominally addresses surveillance pricing, the state did not just include language specifically disclaiming any private right of action to enforce the law—though it did do that. It also went out of its way to carve surveillance pricing claims out of Maryland’s general consumer protection statute, which does contain a private right of action. Of course, pro-business lobbying groups were behind these holes in the law. And sadly, the governor of Maryland’s neighboring state, Virginia, is not far behind.
These examples highlight how the blame for our stark dearth of private enforcement tools unfortunately extends beyond one political party. Over time, enemies of private rights of action have found an all-too-receptive audience, even on the Left, driven by neoliberal dogma. In addition, Progressive advocates have too often focused on building out only public sector enforcement capacity, aiming to develop governmental power even when doing so has led them to overlook the importance of private participation. That tendency might arise from good intentions and a righteous nostalgia for the alphabet soup of powerful New Deal-era government agencies. But the Left can no longer be satisfied by single high-profile public enforcement actions or policy that further consolidates power only in DC. The period where politicians got to parade press releases as progress while failing to build power for everyday, working people must end.
We are the first to note that passing more private rights of action is not a standalone solution to working people’s pursuit of accountability and justice, or a panacea for establishing a legal regime that can change the behavior of bad actors on its own. Private enforcement will still run headlong into the buzzsaw of rigged contract clauses like arbitration agreements, a bulwark of dubious standing doctrine, issues around court access, and other structural imbalances. But we cannot forgo the work necessary to build the foundations that will eventually empower working people simply because we cannot do everything necessary at once. The answer cannot be to stand down because one solution isn’t enough; it has to be to pursue every solution until our disastrous status quo is fixed.
The Current Moment Points to a Democratized Solution
Americans know the root of the problems they face is corporate power, and they clearly want to address it. Polling from the Century Foundation shows broad support for a huge range of reforms aimed at taming the runaway corporate impunity driving our unaffordability crisis. In addition to needing electoral consequences for those who would deny the public their right to demand accountability over the corporations that have gained such massive control over their lives, we need legislators to get to work:
- As we pass new laws and protections, private rights of action need to be the non-negotiable default. These rights have to be front and center as we think about and work to pass legislation to tackle the biggest issues of our day. From data privacy to building guardrails around AI, from workers to consumers and small businesses, and from the federal level all the way down to the local scale, legislators and policymakers must understand private rights of action as core to any public protection regime—and as helping to prevent harm even before it happens. There might be valuable differences in how we structure those rights of action, but the only certainty is that not having a private right of action is not an option. We also need a federal government that takes the side of working people in these fights as they play out in statehouses and city halls in the future. We have noted before how a reimagined White House Office of Intergovernmental Affairs and Department of Justice must invest the time and resources necessary to support state and local efforts to make this framework real.
- Private rights of action can also unlock critical longstanding protections. Many foundational legal safeguards for consumers, workers, and small business owners have proven to be durable and effective in the hands of public enforcers, but still lack a private enforcement element. For example, section 5 of the Federal Trade Commission Act broadly prohibits unfair or deceptive acts or practices across the economy and gives the FTC itself power to enforce that prohibition. Under FTC Chair Lina Khan and Consumer Protection Director Sam Levine, the Commission marshalled a robust consumer protection agenda to combat junk fees, protect consumer privacy, stand up for gig workers, and more. However, the FTC Act does not have a private right of action. That gap leaves individuals often unable to bring nationwide efforts to stop deceptive or unfair corporate practices harming people nationwide. A world where the people of Massachusetts can’t band together with their fellow citizens in Mississippi and Montana against whatever unfair and deceptive practices Meta or any other tech behemoth uses to poison our populace from one coast to another makes no sense. If Congress wants to take on Big Tech, Big Banks, Big Agriculture, and Big Everything, our elected representatives must prioritize empowering individuals to bring nationwide claims under the FTC Act, and to ensure that the FTC Act represents a nationwide floor for consumer protection that states are free to go beyond.
And, of course, Congress should not stop there. From Dodd-Frank to the Higher Education Act, the National Labor Relations Act, and any number of other public protections, Congress must realize its job is to build this capacity. The days when the Left takes power only to focus on federal enforcement, or to kick the can of private enforcement down the road, have to end.
Our laws—especially laws protecting working people—were never meant to just be words on paper. The fact that so many of our laws have become just that is directly tied to how unmoored they have become from the actual problems and needs of working people. We must recognize how obscene it is that we tell the parents of the kid who kills himself at the behest of an AI chatbot that they have to plead for the help of the real stewards of justice under the law, that we tell the person who has endured endless abuse from their employer or an all-surveilling tech company that they have to sit across the table and convince the “right” lawyer that their plight merits attention, and that the promise of the law is something they don’t get to vindicate. When it comes to why the law has become so divorced from the needs of ordinary people, our failure to entrust those people to deploy the law on their behalf must be near the top of the list.
At its core, building state capacity is about ensuring that government and the law actually work for the people. The task of rebuilding state capacity—of empowering people to leverage public protections so that both our laws and the democracy that makes them in the first place actually mean something—starts now.
Seth Frotman was general counsel of the Consumer Financial Protection Bureau from 2021 to 2025. He is a senior fellow at the Columbia Law School Center for Law and the Economy and the University of California Berkeley Center for Consumer Law and Economic Justice.
Ben Kaufman is a Senior Fellow at Protect Borrowers and writes a weekly column for its online magazine, IN DEBT. He previously worked at the Consumer Financial Protection Bureau.