The Litigation State: Public Regulation and Private Lawsuits in the U.S.

by Sean Farhang

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.

Genres: Law

320 pages, Paperback

First published January 1, 2010

Reviews

[Frank Stein · Rating 4 out of 5]

This book is that rare combination: a work of political science that presents a coherent, interesting, and convincing theory, while also containing a fascinating and valuable narrative.

The author's argument is that one of the main reasons the US is subject to so many lawsuits is that the separation of powers between Congress and the President causes legislators to distrust placing too much direct power in the executive, and to prefer instead delegating the enforcement of laws to private individuals by making the returns for lawsuits so enticing. The author uses an analysis of all laws passed since 1887 to show that the most powerful predictor for when Congress creates a "private right of action" in federal law, or when they add "fee-shifting" clauses (to allow those winning a lawsuit to collect their legal fees) or other pro-plaintiff provisions, is Congress and the presidency being held by different parties. He shows especially that the number of such pro-plaintiff provisions soars after 1969, when Congress and the President were more likely to be at odds than before, and shows that the number of federal lawsuits brought by private individuals soars with them.

He complements this analysis with an intense investigation of the evolution of Title VII of the Civil Rights Act, first passed in 1964, that banned job discrimination based on race, gender, and, today, a host of other attributes. He shows that since Northern Republicans held the balance of power in the Senate they insisted on keeping enforcement out of the hands of the Kennedy or Johnson White House. Minority Leader Everett Dirksen specifically took the power to prosecute discrimination away from the proposed Equal Employment Opportunity Commission (which he feared would be as anti-business as another independent commission, the National Labor Relations Board) and placed it in private hands. Later, with the Equal Employment Opportunity Act of 1972 and the Civil Rights Attorneys Fee Act of 1976 and the Civil Rights Act of 1991, the power of private suits was expanded, until today job discrimination under Title VII leads to almost 20,000 lawsuits a year, more than any other kind of federal suit besides petitions by prisoners. The groups, like the NAACP, who once wanted strong executive enforcement, soon garnered a large portion of their budget from lawsuits with fee-shifting, and the Republican groups that once heralded it, became scared at the supposed monster they had unleashed.

This book shows then that lawsuits are not just the effluvia of a litigious culture, but conscious public policy choices to shape state action in certain ways, ways themselves determined by the nature of the American constitutional system.