Tammi S. Etheridge (Washington and Lee University School of Law) and Carliss Chatman (Southern Methodist University – Dedman School of Law) have posted The End of Evidentiary Federalism on SSRN. Here is the abstract:
Across private law, liability often depends on facts that only public enforcement institutions can reliably generate. This Article names that dependence evidentiary federalism and argues that it is a pervasive but largely overlooked feature of modern private enforcement. When public institutions lose the capacity to investigate, verify, and publicly document misconduct, legal doctrine may remain formally unchanged even as its practical enforceability declines.
Fiduciary oversight provides a particularly revealing case study. For decades, Delaware’s Caremark doctrine functioned not simply because of its doctrinal design, but because federal agencies generated the investigative findings, enforcement records, and compliance narratives that rendered managerial failures legible as fiduciary breaches. Administrative fact-production transformed otherwise inaccessible misconduct into legally actionable “red flags” while allowing Delaware to preserve demanding pleading standards and substantial managerial discretion.
This Article argues that recent administrative retrenchment has begun to erode that institutional arrangement. As public fact-production becomes slower, more contested, and less capable of generating authoritative evidentiary records—and as Delaware simultaneously narrows the practical consequences of oversight failure—Caremark increasingly reveals a broader institutional vulnerability rather than an isolated problem of corporate law. The resulting dynamic extends well beyond fiduciary oversight to other private-law regimes that depend on public institutions to supply evidentiary inputs private actors cannot readily reproduce.
Using Caremark as a case study, the Article develops a general theory of evidentiary federalism, identifies the institutional characteristics that make private-law doctrines dependent on public fact-production, and explains how legal systems respond as that informational infrastructure erodes. It concludes by examining the emerging reconstruction of oversight through private governance mechanisms while arguing that private law cannot fully replace the evidentiary functions once performed by the administrative state.
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