Economists have recently begun to examine seriously the institution of private enforcement of law. Among the best known efforts are: K. ELZINGA & W. BREIT, THE ANTITRUST PENALTIES: A STUDY IN LAW AND ECONOMICS (1976); Landes & Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. I (1975); Polinsky, Private Versus Public Enforcement of Fines, 9 J. LEGAL STUD. 105 (1980); Schwartz & Mitchell, An Economic Analysis of the Contingent Fee in Personal Injury Litigation, 22 STAN. L. REV. 1125 (1970). See also Schwartz, An Overview of the Economics o/Antitrust Enforcement, 68 GEO. L.J. 1075 (1980). Although incisive, these theoretical efforts generally have given little attention to the institutional context in which private litigation arises and the often complex incentive structure facing the private enforcer. For efforts which have begun to take account of these factors, see Dam, Class Actions: Efficiency, Compensation, Deterrence, and Conflict of Interest, 4 J. LEGAL STUD. 47 (1975); Reich, The Antitrust Industry, 68 GEO. L.J. 1053 (1980); Rhode, Class Conflicts in Class Actions, 34 STAN. L. REV. 1183 (1982).
A fundamental premise of this article is that more intellectual bridge-building must occur between those working on the purely theoretical level and those familiar with the institutional context, if theoretical critiques are to have useful applications. 3. Among the major federal statutes that authorize an award of attorneys’ fees to finance private attorneys general are: (1) the Clayton Act, 15 U.S.C. § 15 (Supp. V 1981); (2) the Securities Exchange Act, 15 U.S.C. §§ 78i(e), 78r(a) (1976); (3) the Communications Act, 47 U.S.C. § 206 (1976); (4) the Fair Labor Standards Act, 29 U.S.C. § 216(b) (Supp. V 1981); (5) the patent laws, 35 U.S.C § 285 (1976) (award authorized in “exceptional cases”); (6) the Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1964 (1976); (7) the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E) (1976); and (8) much recent