Sean Farhang

We investigate institutional explanations for Congress’s choice to fragment statutory frameworks for policy implementation.  We argue that divided party government, which fuels legislative-executive conflict over control of the bureaucracy, motivates Congress to fragment implementation power as a strategy to enhance its control over implementation.  We develop a novel measure of fragmentation in policy implementation, collect data on it over the period 1947 to 2008, and test hypotheses linking separation of powers structures to legislative design of fragmented implementation power.  We find that divided party government is powerfully associated with fragmentation in policy implementation, and that this association contributed to the long-run growth of fragmentation in the post-war U.S.  We further find that legislative coalitions are more likely to fragment implementation power in the face of greater uncertainty about remaining in the majority.

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, the committee shifted toward being dominated by federal judges, that those appointments shifted in favor of judges appointed by Republican Presidents, that practitioner appointments shifted toward corporate and defense practitioners, and that the committee’s proposals became increasingly anti-plaintiff (and hence anti-private enforcement).

Since the bold rulemaking reforms of 1993 were very nearly blocked by Congress, it has seemed that the important lessons for some rulemakers had to do with the epistemic deficits or overreaching of proposed reforms, while for others the lessons focused attention on the locus of partisan control in Congress. The former group may have learned from the Court’s strategy of incrementalism – death by a thousand cuts – in litigation reform involving the interpretation of federal statutes. The latter group may regret, if not the loss of leadership in procedural lawmaking, then the loss of leadership in retrenchment, which some rulemaking critics have seen signaled in the Court’s recent use of decisions effectively to amend the Federal Rules.
 

We evaluate opinion assignment and opinion authorship on the U.S. Courts of Appeals. Based on the Courts of Appeals' distinct institutional setting, we derive theoretical explanations and predictions for opinion assignment on three-judge panels. Using an original dataset of sexual harassment cases, we test our predictions and find that women and more liberal judges are substantially more likely to write opinions in sexual harassment cases. We further find that this pattern appears to result not from policy-driven behavior by women and liberals assigners, but from an institutional environment in which judges seek out opinions they wish to write. Judicial opinions are the vehicles of judicial policy, and thus these results have important implications for the relationship between legal rules and opinion assignment and for the study of diversity and representation on multimember courts.

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench private enforcement, particularly in the last decade. The Federal Rules of Civil Procedure became for a brief time the lawmaking territory in which a newly assertive institutional judiciary sought to forge instruments of retrenchment, but the ensuing controversies quickly animated interest groups and members of Congress who were protective of the procedural status quo to press successfully for changes in the Enabling Act process that limited rulemakers’ capacity to change the Federal Rules. Rulemaking is not, however, the only way that the judiciary can influence private enforcement. Federal Rules afford ample room for interpretation, and they can be effectively amended by the Supreme Court outside the Enabling Act process. Empirical analysis of the Court’s Federal Rules decisions confirms that, in this domain as well, the campaign to retrench private enforcement has had its greatest success in the courts. Indeed, it may be that the success experienced in the Supreme Court affected both the content and the zeal of the legislative campaign for civil litigation reform. Thus, although the issue of litigation reform in general, and procedure as a tool of litigation reform in particular, has been declining in Congress since the mid-1990s, it is at its highest level ever on the Court.

Congress routinely relies upon private lawsuits to enforce its mandates. In this paper we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel dataset based upon review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981 to 2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to secure counsel. We find that over the course of the decade after passage, the law substantially increased the probability that Title VII plaintiffs would be represented by counsel, and that in doing so it reversed a decade long trend in the opposite direction.

Our aim in this article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of an enforcement strategy and, in the case of private enforcement, are critical to the efficacy of a private enforcement regime. We then turn to the business of institutional architecture, describing the considerations—both in favor of and against private enforcement—that should affect the choice of an enforcement strategy. We lay out choices to be made about elements of a private enforcement regime, attending to the general legal landscape in which the regime would operate, particularly court access, as well as how incentives for enforcement interact with the market for legal services, which has important implications for private enforcement activity. We situate these legislative choices about private enforcement in the context of institutions that shape them. Finally, we seek to demonstrate how general considerations play out by examining private enforcement in two policy areas: legislation proscribing discrimination in employment, and laws protecting consumers from unfair and deceptive practices.

Examining qualitative historical evidence from cases of federal regulation in the areas of labor, civil rights, and environmental policy, this paper provides support for the hypothesis that divergence between legislative and executive preferences – a core and distinctive feature of the American constitutional order – creates an incentive for Congress to rely upon private lawsuits, as an alternative to administrative power, to achieve its regulatory goals. It also shows that this mechanism encouraging statutory mobilization of private litigants had been operative long before its powerful growth started in the late 1960s; that it operates in similar fashion with Republican legislators facing Democratic presidents, and Democratic legislators facing Republican presidents; and that it remained a source of controversy, and an active influence on congressional decision-making, throughout the half century covering the 1940s through the 1980s.

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.

In lobbying for the job discrimination provisions of the Civil Rights Act (CRA) of 1964, liberal civil rights advocates wanted an administrative job discrimination enforcement regime modeled on the National Labor Relations Board (NLRB), with no private lawsuits. Pivotal conservative Republicans, empowered by a divided Democratic Party and the filibuster in the Senate, defeated an administrative framework and provided instead for private lawsuits with incentives for enforcement, including attorney’s fees for winning plaintiffs. They were motivated by native suspicion toward bureaucratic regulation of business in general, as well as fear that they would not be able to control an NLRB-style civil rights agency in the hands of their ideological adversaries. In the political environment of 1963–64, some meaningful enforcement provisions were necessary, and to conservative Republicans private litigation was preferable to public bureaucracy.

This choice had important self-reinforcing policy feedback effects. Civil rights advocates were initially optimistic about agency implementation and skeptical about the efficacy of private litigation to enforce Title VII, even with attorney’s fees for winning plaintiffs. In the late 1960s and early 1970s, however, civil rights advocates observed an agency lacking the material resources and political will and commitment to carry out its mission. At the same
time, they observed levels of private enforcement that far exceeded their expectations, as well as courts inclined toward broadly proplaintiff interpretations of Title VII. The CRA of 1964’s attorney’s fees provisions also had the effect of contributing funds to civil rights groups that prosecuted lawsuits and of conjuring into being a private, for-profit bar to litigate civil rights claims in general, and job discrimination claims in particular. These developments drove a transformation in the enforcement preferences of civil rights groups toward private litigation, weakening their historic support for administrative implementation. Working together with the burgeoning for-profit civil rights bar, they mobilized to expand the fee-shifting provisions of the CRA of 1964 across the entire field of civil rights, which they accomplished by successfully lobbying for enactment of the Civil Rights Attorney’s Fees Awards Act of 1976. Thus was created the modern civil rights enforcement framework.

Levels of private litigation enforcing statutes are critically determined by legislative choice. I set out a theoretical framework for understanding how legislators purposefully influence the potential economic value of statutory claims, thereby establishing a market for enforcement consistent with legislative preferences. To test the theory, I examine the effects of the Civil Rights Act (CRA) of 1991, which increased the value of employment discrimination claims under the CRA of 1964, and find that the law increased the number of claims filed. The origins and legislative history of the law also reveal that Congress utilized economic incentives as a policy instrument to purposefully increase private litigation, with a high degree of selfconsciousness, in the course of conflict with other political actors over control of civil rights policy.

In this article, we will probe two distinct historical questions. First, we explore why congressional representatives from the South, who had generally supported the Democratic Party on labor issues during the 1930s, joined with Republicans to oppose the party's pro-labor orientation in the 1940s. We also examine why the class-based union movement that mobilized so assertively after the passage of the Wagner Act in 1935 became so cramped and pragmatic by the early 1950s. These puzzles, we believe, are closely related. Our explanation for why labor's horizons, topography, and prospects constricted to workplace issues, to some segments of the working population, and to limited geographic areas by the end of the Truman years points to how southern Democrats shaped the main institutions produced by New Deal and Fair Deal labor legislation.

This article assesses how the institutional context of decision making on three-judge panels of the federal Court of Appeals affects the impact that gender and race have on judicial decisions. Our central question is whether and how racial minority and women judges influence legal policy on issues thought to be of particular concern to women and minorities when serving on appellate panels which decide cases by majority rule. Proper analysis of this question requires investigating whether women and minority judges influence the decisions of other panel members. We find that the norm of unanimity on panels grants women influence over outcomes even when they are outnumbered on a panel.

This article investigates causes of the legislative choice to mobilize private litigants to enforce statutes. It specifies the statutory mechanism, grounded in economic incentives, that Congress uses to do so, and presents a theoretical framework for understanding how certain characteristics of separation of powers structures, particularly conflict between Congress and the president over control of the bureaucracy, drive legislative production of this mechanism. Using new and original historical data, the article presents the first empirical model of the legislative choice to mobilize private litigants, covering the years 1887 to 2004. The findings provide robust support for the proposition that interbranch conflict between Congress and the president is a powerful cause of congressional enactment of incentives to mobilize private litigants. Higher risk of electoral losses by the majority party, Democratic control of Congress, and demand by issue-oriented interest groups are also significant predictors of congressional enactment of such incentives.