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From the PublisherWinner of the 2011 C. Herman Pritchett Award, Law and Courts Section of the American Political Science Association
Winner of the 2011 Gladys M. Kammerer Award, American Political Science Association
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 State shows 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...
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 State shows 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 State investigates how American political institutions shape the strategic design of legislation to mobilize private lawsuits for policy implementation.
Winner of the 2011 Gladys M. Kammerer Award, American Political Science Association
Next to petitions by prisoners to be set free, job discrimination lawsuits are the single largest category of litigation in federal courts. Over the past decade or so, the annual number of such lawsuits averaged about 20,000. 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." As one commentator recently put it, "[F]rom malpractice suits to libel actions, from job discrimination to divorce, litigation has become a way of life in the United States," making it "the world's most litigious society." How did job discrimination litigation become a part of the American way of life?
A critical part of the answer concerns the way federal job discrimination statutes-the most important of which is the foundational Title VII of the Civil Rights Act of 1964-are written. The existence and extent of private litigation enforcing a statute is to an important degree the product of legislative choice over questions of statutory design. One need only consider two of the other largest federal interventions in the employment relationship-one before the CRA of 1964 and one after it-to drive this point home. While creating a wide array of rights for workers, neither the National Labor Relations Act of 1935 nor the Occupational Safety and Health Act of 1970 allowed private enforcement lawsuits for implementation. Instead, in those laws Congress opted for bureaucracy-centered enforcement regimes that empowered administrators to undertake investigations, hold hearings, and issue orders.
It is a legislative choice to rely upon private litigation in statutory implementation. And when Congress does choose to rely upon private litigation by including a private right of action in a statute, it faces a series of additional choices of statutory design concerning who has standing to sue, which parties will bear the costs of litigation, what damages will be available to winning plaintiffs, whether a judge or jury will make factual determinations and assess damages, and rules of liability, evidence, and proof that together can have profound consequences for how much or little private enforcement litigation will actually be mobilized. This book refers to this system of rules as a statute's private enforcement regime.
While private plaintiff-driven civil rights litigation is so familiar a part of the American legal landscape that it has an air of inevitability, this approach to implementing job discrimination laws was not foreordained. To the contrary, a resolutely bureaucracy-centered approach to remedying job discrimination, founded upon administrative cease-and-desist authority rather than the private right to sue, actually represented the dominant model in 1964. Of twenty-eight states with fair employment practice laws in 1964, twenty-one used the administrative cease-and-desist model, four used only criminal and no civil sanctions, and three lacked enforcement provisions and were strictly voluntary. Only a single United States territory-Puerto Rico-used the enforcement model that Congress would ultimately follow in the job discrimination provisions in the CRA of 1964: statutory provision for private civil actions in court, with economic damages and attorney's fee awards for winning plaintiffs. The dominance of private litigation enforcing federal job discrimination laws that we take for granted today, widely regarded as emblematic of America's litigious "way of life," was a remarkably anomalous departure in 1964. Why did it happen?
The answer to this particular policy history question, which is the focus of chapters 4 to 6, points to a conceptually broader argument taken up in this book about the large role of private litigation in the implementation of statutory policy in the United States. Legislators and the interest groups that influenced their behavior, with a high degree of self-consciousness, and centrally motivated by policy goals, constructed Title VII's enforcement provisions with the objective of mobilizing private litigants to execute the enforcement function in court. As Senator James Abourezk (D-SD) would later put it, Title VII's enforcement provisions were designed to provide for enforcement of the law "by enlisting private citizens as law enforcement officials." The legislators who effectively deputized private litigants and their attorneys to enforce the law manifestly understood themselves to be facing a choice between building an authoritative bureaucratic enforcement apparatus on the one hand, and delegating enforcement to private litigants and courts on the other.
The legislative choice of private litigation over administrative power emerged from conflict between ideologically antagonistic interests, channeled through America's fragmented political institutions, particularly the dynamic of legislative-executive competition for control of the bureaucracy. The structure of American political institutions decisively shaped the outcome in Title VII of the CRA of 1964, and in subsequent important civil rights laws expanding the role of private enforcement. A contention at the heart of this book is that America's fragmented state structures drives legislative enactment of private enforcement regimes. In elaborating this argument the book draws extensively on political science literature on American courts in the regulatory process (particularly Robert Kagan, Shep Melnick, and Thomas Burke), rational choice institutionalism (particularly Terry Moe, and the collaborative work of McCubbins, Noll, and Weingast), and historical institutionalism (particularly the literature on American political development). The core of the institutional arguments operates along several dimensions that are briefly previewed here, and that are spelled out in detail in chapter 2, where the literatures that the book builds upon are laid out and integrated.
The first institutional relationship is by far the most central to the argument of the book, powerful in effect, and pivotal to explaining the steep rise in private enforcement litigation starting in the late 1960s, documented below. It is that conflict between Congress and the president over control of the bureaucracy, a perennial feature of the American state, creates incentives for Congress to bypass the bureaucracy and provide for enforcement via private litigation. This cause of private enforcement regimes has become much more significant to American public policy since the late 1960s, when divided party control of the legislative and executive branches became the norm and relations between Congress and the president became more antagonistic, a condition that was exacerbated by growing ideological polarization between the parties. These conjoint conditions of divided government and party polarization continued through the end of the twentieth century and into the beginning of the twenty-first. The book will argue that this legislative-executive ideological polarization is an important cause of a coincident explosion of private lawsuits enforcing federal statutes since the Nixon administration, and of the corresponding, and widely remarked, role of private litigants, lawyers, and judges in American policy.
Second, the many veto points that characterize America's fragmented state structures render a very sticky status quo, making future amendments to a law, once passed, hard to accomplish. For reasons to be discussed in the next chapter, this sticky status quo creates an incentive for legislators and their interest group constituents to rely upon private enforcement regimes, which provide a form of auto-pilot enforcement, via market incentives, that will be difficult for future legislative majorities, or errant bureaucrats pursuing their own goals, to subvert. Third, the same veto-point-ridden institutional environment often necessitates compromising with many gatekeepers, which frequently entails scaling back ambitious policy proposals, and this institutional environment favors privatizing the enforcement function as opposed to administrative state-building. Before these institutional arguments are set forth in chapter 2, it is necessary first to establish that private enforcement regimes, as a policy instrument, are a critical component of American regulatory state capacity.
Private Statutory Litigation and Regulatory State Capacity
Legislators' construction of statutory private enforcement regimes has deep and underexplored implications for American regulatory state capacity. "State capacity" refers simply to the state's capacity to effectively implement its policy choices. "Regulation," as used here, to borrow a definition from Christopher Foreman, refers to "any governmental effort to control behavior by other entities, including small business firms, subordinate levels of government, or individuals." Regulatory state capacity thus refers to the state's capacity to successfully implement its efforts to control the behavior of other entities.
Owing largely to the concepts and categories used to measure state capacity, scholars in political science and comparative political sociology have failed to adequately grasp private enforcement litigation as a form of state intervention. "State-centered" scholars have tended to operate within a narrow and executive-centered conception of what the state is. "State centered regimes," explains James Q. Wilson, "are executive-centered regimes, and executive-centered regimes are dominated by their bureaucracies ... [and] mak[e] the administrative apparatus the center of official action." Drawing implicitly upon the Weberian ideal of the modern state, this conceptual framework for studying state capacity has tended to privilege (1) the number of bureaucratic personnel, (2) the degree of their organizational centralization, and (3) the state's capacity to extract resources, as the axial measures of state capacity. These dimensions of bureaucracy, according to Theda Skocpol, are the "universal sinews of state power."
Against this Weberian template, the scholarly literature on the American state has found it to be sorely wanting-a "weak state" as compared to the Weberian model of a "strong state," most closely instantiated in France or Prussia. In assessing this scholarly literature, Ira Katznelson observes that the American state has been "widely portrayed as weak, amateur, decentralized, negligible." William Novak, likewise, has observed more broadly that American social scientists and historians have represented the American state as "something not quite fully formed, ... something less, something laggard, something underdeveloped when compared to the mature governmental regimes that dominate modern European history."
This tendency is characteristic of the literature on American political development, the subfield within political science that has paid the most attention over the past quarter century to American state capacity. Indeed, where courts have entered this literature, it has often been as an explanation for state incapacity: courts contribute to the weakness of the American state by obstructing, constraining, and subverting the good works of the elected branches; they are a veto player against democracy; they delimit state capacity. If the role of courts in the literature on American political development has been limited, the role of ordinary litigation, proceeding at the bottom of the judicial hierarchy, orchestrated by private lawyers and litigants, overwhelmingly occurring outside of the courtroom and beyond the view of any official state actor, has been almost entirely ignored.
An excessively executive-centered perspective on state capacity has caused observers to miss the significance of private enforcement litigation as a form of deliberate and effective state intervention. Private enforcement litigation falls outside the scope of vision characteristic of the dominant executive-centered approach to state capacity, and beyond conventional definitional boundaries of the state more broadly. Consequently, its crucial role in the functioning of the American regulatory state-indeed its very "stateness"-has been largely overlooked by students of American state capacity.
Private Litigation, Policy Instruments, and Infrastructural Power
One might readily acknowledge the importance of private statutory enforcement litigation in American policy implementation while resisting the characterization of it as a form of state action. Why should private enforcement litigation be regarded as a component of state capacity? After all, the decision to pursue enforcement litigation will lie with private actors pursuing their own interests, not with state officials, and the costs of enforcement will be borne by private citizens who bring suits and the defendants they sue, not by government agencies. If the state is neither undertaking enforcement activities with its own personnel nor funding them with its revenue, why talk of state capacity?
The answer is that state capacity is not exhausted by the actions of state personnel or the expenditure of state resources. If the object of interest is the state's capacity to implement its policy choices by controlling the behavior of other entities, then one must attend not only to the direct actions of state officers, but also to more indirect pathways of regulatory control. The concept of "policy instruments"-the repertoire of means available to policymakers to achieve their objectives-is useful for illuminating this point. Careful attention to the inventory of feasible policy instruments available to state actors is crucial for understanding state capacity because, as Peter Katzenstein has observed, "[t]he instruments which policy makers command largely determine whether stated objectives can be achieved in the process of policy implementation."
When, for example, the Department of Labor undertakes enforcement action under the Fair Labor Standards Act, it constitutes the archetypal exercise of state capacity. The bureaucratic arm of the executive engages in potentially invasive and coercive investigative activity to ascertain violations, and carries out the prosecutorial function, which can result in judicial commands against violators, backed by federal police powers. But what of private litigation to enforce federal statutes? The American civil discovery process effectively confers upon private litigants and their lawyers the same investigatory powers as federal agencies to compel sworn testimony and to disgorge documents; they can obtain the same court orders commanding a violator to cease its unlawful conduct and pay for its violations; and the court orders are backed by the same federal police powers.
Excerpted from The Litigation State by Sean Farhang Copyright © 2010 by Princeton University Press. Excerpted by permission.
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Illustrations and Tables ix
Part I: Private Enforcement Regimes in General
Chapter 1: An Introduction to Private Enforcement Regimes 3
Chapter 2: Institutional Foundations of Private Enforcement Regimes 19
Chapter 3: An Empirical Model of Enactment of Private
Enforcement Regimes 60
Part II: Private Enforcement Regimes and Civil Rights
Introduction to Part II 85
Chapter 4: Foundations: The Civil Rights Act of 1964 94
Chapter 5: Reverberations: 1965-1976 129
Chapter 6: Escalation: The Civil Rights Act of 1991 172
Chapter 7: Conclusions and Implications 214