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The Litigation State

The Litigation State: Public Regulation and Private Lawsuits in the United States

Sean Farhang
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  • Book Info
    The Litigation State
    Book Description:

    Of the 1.65 million lawsuits enforcing federal laws over the past decade, 3 percent were prosecuted by the federal government, while 97 percent were litigated by private parties. When and why did private plaintiff-driven litigation become a dominant model for enforcing federal regulation?The Litigation Stateshows how government legislation created the nation's reliance upon private litigation, and investigates why Congress would choose to mobilize, through statutory design, private lawsuits to implement federal statutes. Sean Farhang argues that Congress deliberately cultivates such private lawsuits partly as a means of enforcing its will over the resistance of opposing presidents.

    Farhang reveals that private lawsuits, functioning as an enforcement resource, are a profoundly important component of American state capacity. He demonstrates how the distinctive institutional structure of the American state--particularly conflict between Congress and the president over control of the bureaucracy--encourages Congress to incentivize private lawsuits. Congress thereby achieves regulatory aims through a decentralized army of private lawyers, rather than by well-staffed bureaucracies under the president's influence. The historical development of ideological polarization between Congress and the president since the late 1960s has been a powerful cause of the explosion of private lawsuits enforcing federal law over the same period.

    Using data from many policy areas spanning the twentieth century, and historical analysis focused on civil rights,The Litigation Stateinvestigates how American political institutions shape the strategic design of legislation to mobilize private lawsuits for policy implementation.

    eISBN: 978-1-4008-3678-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
    (pp. xi-xiv)
  5. Part I: Private Enforcement Regimes in General

      (pp. 3-18)

      Next to petitions by prisoners to be set free, job discrimination lawsuits are thesingle largest categoryof litigation in federal courts. Over the past decade or so, the annual number of such lawsuits averaged about 20,000.¹ Two percent of these job discrimination suits were prosecuted by the federal government, while 98 percent were litigated by private parties. The enormous volume of privately prosecuted employment discrimination litigation has earned it a prominent role among poster children for the much-maligned “litigation explosion.”² As one commentator recently put it, “[F]rom malpractice suits to libel actions, from job discrimination to divorce, litigation has...

      (pp. 19-59)

      Any theoretical account of legislative mobilization of private litigants must address bothhowCongress mobilizes private litigants andwhyit chooses to do so. This chapter first addresses how Congress does so, laying out a framework for understanding the way in which Congress crafts the details of private enforcement regimes with the purpose of setting the economic value of claims at a level calculated to mobilize desired levels of private enforcement. It is necessary first to clearly establish how private enforcement regimes work as mechanisms of litigant mobilization in order to understand some of the subtleties of what causes Congress...

      (pp. 60-84)

      Chapter 1 suggested that scholars have paid insufficient attention to private enforcement regimes. Perhaps nothing illustrates this better than the fact that no general measure of congressional enactment of private enforcement regimes has been devised to date, and, naturally then, no data has ever been collected on Congress’s propensity to enact private enforcement regimes over time. Scholars who have treated the statutory structure of judicial remedies as an important political variable have generally been limited, empirically, to case studies focusing on major legislative events.¹ Rich and excellent as this research is, the development of an objective measure of congressional enactment...

  6. Part II: Private Enforcement Regimes and Civil Rights

    • Introduction to Part II
      (pp. 85-93)

      Over the past decade or so, the number of privately prosecuted job discrimination lawsuits filed in federal court averaged about 20,000 per year.¹ The foundational decision to make private litigation the central vehicle of implementation for federal job discrimination laws was made in Title VII of the landmark Civil Rights Act (CRA) of 1964. As observed in the introductory chapter, this decision was neither natural nor inevitable. It was, rather, a radical departure from the dominant enforcement model used in state fair employment practice laws: an administrative commission with adjudicatory and cease-and-desist powers.² Not one state of the twenty-eight with...

    • Chapter 4 FOUNDATIONS: The Civil Rights Act of 1964
      (pp. 94-128)

      It is often forgotten that the famous March on Washington in August 1963, where Martin Luther King delivered his “I Have a Dream” speech, was billed as the “March on Washington forJobsand Freedom.” Denial of equality in the workplace had been a fundamental concern of the civil rights movement that culminated in passage of the Civil Rights Act of 1964. Title VII of that act, barring job discrimination in the private sector based upon race, gender, national origin, or religion, was among the most radical socioeconomic interventions by the national government in American history.

      The question of how...

    • Chapter 5 REVERBERATIONS: 1965–1976
      (pp. 129-171)

      In the decade following the Civil Rights Act of 1964, private civil rights enforcement took firm root and began to flourish in a manner and to an extent that was not expected by Title VII’s architects on the left or right. Political, social, and economic reality is complex, and human beings are imperfect prognosticators of the long-run policy “feedback” effects of interventions in that reality.¹ Among forms of unanticipated feedback, the self-reinforcing type is critical to the story of civil rights litigation following passage of the CRA of 1964. The long-run growth and entrenchment of an institution can turn upon...

    • Chapter 6 ESCALATION: The Civil Rights Act of 1991
      (pp. 172-213)

      On the face of it, the Civil Rights Act of 1991 was an odd law. It was passed in an era in which lawsuits were getting an especially bad reputation. It was the same year that Walter Olson published his first book-length polemic against lawsuits,The Litigation Explosion: What Happened When America Unleashed the Lawsuit.¹ While the bills that would become the CRA of 1991 were being debated in Congress, Olsen’s book received a glowing review titled “Too Many Lawyers, Too Many Lawsuits,” by former chief justice of the Supreme Court Warren Burger, who had lately become an outspoken advocate...

      (pp. 214-234)

      Private enforcement regimes are a critically important instrument that American state actors use to achieve their objectives in the process of policy implementation. Using economic incentives to mobilize private litigants and the private bar, members of Congress have used this instrument, which they recognize partly as an alternative to administrative power, with a high degree of self-consciousness since the founding of the American regulatory state in the late nineteenth century. With it they have constructed a massive private enforcement infrastructure and penetrated and controlled spheres of the economy and society spanning the waterfront of federal civil regulation. With it they...

  7. NOTES
    (pp. 235-292)
  8. INDEX
    (pp. 293-302)
  9. Back Matter
    (pp. 303-306)