Reviewed by Anna-Maria Marshall, Department of Sociology. University of Illinois, Urbana-Champaign. Email: amarshll [a] illinois.edu.
In his fascinating book, Sean Farhang asks a big question – what is the role of the civil litigation system in the American regulatory state? Politicians from both ends of the ideological spectrum frequently bemoan the fact that the United States is a litigious society, but in those debates, they rarely admit that private lawsuits are sometimes the only way for people to claim the rights granted to them by law. Other political systems relegate law enforcement primarily to command and control agencies, yet American skepticism about bureaucracy and regulation renders such enforcement regimes politically controversial. Thus, in many realms of regulation, Congress makes ordinary citizens “private attorneys general,” authorizing them to implement the law when and where they see fit. Farhang’s analysis seeks to explain the institutional context that gives rise to these enforcement mechanisms.
Farhang’s argument proceeds in two parts. First, he establishes the fact that Congress chooses private litigation as a means of enforcing statutes and designs those statutes in ways that either promote or constrain such litigation. Farhang (p. 4) observes: “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.” Farhang also demonstrates that Congress can adjust the economic value of these private claims to make them more attractive to litigants and their attorneys. So, for example, Congress can adopt statutes that require losing defendants to pay the attorneys’ fees of successful plaintiffs or that provide punitive damages beyond the plaintiff’s material harm. These provisions increase the economic value of the case, thus encouraging more private enforcement of the statutory claims. Farhang refers to this system of rules governing the level of private regulation as “private enforcement regimes.”
In the second part of his argument, Farhang explains why Congress chooses to adopt private enforcement regimes rather than delegate enforcement authority to a regulatory agency. Specifically, Farhang argues that private enforcement regimes are more common when Congress and the President are in conflict, struggling over control of the administrative regulatory apparatus. In such situations, Congress aims to bypass the extensive influence a President wields over the administrative state, and [*126] seeks out alternatives for implementing legislation.
Private attorneys general provide just such an alternative. Private litigation has a much lower profile than bureaucratic regulation, and so may be more palatable to those legislators whose political platforms consist of attacking the expanding federal government. Giving control over enforcement to private parties may satisfy their desire to rein in central governmental authority. Meanwhile, as Farhang shows, the private enforcement regimes can be more flexible and creative in enforcing – and expanding – the rights created by the legislature.
Farhang’s approach is notable because he develops both quantitative and qualitative evidence to test his theory. He builds an event count model to analyze the number of times each year Congress enacts legislative incentives to promote private enforcement regimes. Specifically, he counts the number of times Congress passes legislation with fee-shifting arrangements or with increases in the potential damages associated with a legal violation. His model shows that all measures of legislative-executive conflict have a strong, positive influence on the adoption of private enforcement regimes. He also finds some modest support for alternative hypotheses. For example, the presence of interest groups at congressional hearings also increases the likelihood that Congress will adopt litigation incentives, but as Farhang notes, the model does not explain why that should be the case. The model, however, rejects another rival hypothesis – that private enforcement regimes are the product of lobbying by trial lawyers. In fact, Farhang finds that lawyer witnesses are “highly insignificant.”
After using quantitative analysis to confirm his basic hypotheses, Farhang goes on to analyze the legislative history of the Civil Rights Act, especially its enforcement mechanisms. The Civil Rights Act is a particularly strong subject for a case study because it combines both social and economic regulation, areas where Congress most commonly adopts private enforcement mechanisms. In 1964, before enacting the Civil Rights Act, members of Congress were deeply divided about how to enforce it. Its supporters sought to give widespread enforcement powers to the EEOC, thus creating an influential administrative agency whose agenda would advance the rights of marginalized groups. The compromise created a weaker EEOC and enforcement through private lawsuits initiated by individual victims of discrimination. The Civil Rights Act gave victorious plaintiffs attorneys’ fees. Over time, Congress amended the Act to extend fee-shifting to more kinds of cases and to award damages in excess of back pay. These adjustments to the economic value of discrimination litigation produced more enforcement, making discrimination cases one of the largest categories of lawsuit in the federal system.
More importantly, Farhang’s case studies amplify the findings of his quantitative analysis by showing the level of conflict between and within the branches that gave rise to the enforcement mechanism in the Civil Rights Act. His analysis of committee hearings and floor debates illustrates that Democrats were forced to choose private [*127] enforcement mechanisms because conservative Republicans feared the creation of a new federal bureaucracy, dominated by Democrats and dedicated to a Democratic constituency. Moreover, because of a split within the Democratic Party about the proper treatment of African-Americans, Republican votes were needed to pass the Civil Rights Act. Later amendments encouraging more enforcement emerged when the Supreme Court became hostile to discrimination complaints and when Republican Presidents demonstrated that they were not interested in remedying race discrimination.
Farhang’s multi-method approach is the most compelling aspect of the book. He persuasively makes the case that no single method can provide a complete explanation for the emergence of private litigation as a means of enforcing litigation. Farhang’s quantitative analysis demonstrates the relationship between these enforcement mechanisms and conflicts over separation of powers. Yet, he argues, these general patterns do not necessarily establish the causal argument that he seeks to make – that legislators choose private enforcement mechanisms over their alternatives because of conflicts that make centralized administrative enforcement less appealing. He states: “Qualitative historical evidence is necessary to evaluate whether the intentional and causal account actually links the initial condition of a planned regulatory intervention to an observed outcome of private enforcement litigation as a method of implementation” (88).
The Litigation State should be of interest to a wide range of scholars, including political sociologists and political scientists studying the regulatory state. When studying state capacity in the United States, scholars often focus on the executive and legislative branches. They largely ignore the important role played by private litigation seeking enforcement of rights granted in the legislative process. Fran Zemans (1983) noted years ago that legal mobilization was profoundly democratic (if not egalitarian) because it allowed rights-bearing individuals and organizations to make claims for those rights without necessarily waiting for an advocacy group or other special interest to do it for them. Moreover, through the discovery process, litigants have investigative powers that are comparable to any federal agency. And courts have even broader powers than regulatory agencies to craft a suitable remedy, by providing damages or enjoining illegal conduct. Farhang makes a compelling case that private enforcement regimes should be included in our understanding of governance.
Farhang’s book will hopefully be of particular interest to those working in the field of public law and judicial politics, where the research consists largely of increasingly sophisticated models that test competing hypotheses about whether law or politics primarily determines judicial outcomes. Perhaps distracted by the methodological pyrotechnics of their models, scholars in this field seem to have lost track of why they’re doing what they’re doing – studying the role of the courts in the overall American political system. Sean Farhang provides a corrective, offering an analysis that situates courts and legal rules in an overall system of political governance in the United States.[*128]
Zemans, Frances. 1983. “Legal Mobilization: The Neglected Role of Law in the Political System.” American Political Science Review 77:690-703.
Copyright by the author, Anna-Maria Marshall.