Public Regulation and Private Lawsuits in the American Separation of Powers System

Abstract

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. Higher levels of 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.

Government Regulation of International Corporate Social Responsibility in the US and the UK: How Domestic Institutions Shape Mandatory and Supportive Initiatives

“…In contrast, in the US, the Executive and Legislative branches may, or may not, be controlled by the same political party and there is a high level of checks and balances between the Executive, Legislative and Judicial branches reflecting a mistrust of concentrated power (Lipset ). In situations where the President and Congress are not represented by the same party conflict over control of the bureaucracy is not uncommon and may spur private litigants to mobilize opposition (Farhang ). According to Kagan, the US has developed a distinctive ‘legal style’, crafting and enforcing laws and regulations, conducting litigation, adjudicating disputes and empowering the courts (Kagan : 22).…”

Congressional Mobilization of Private Litigants: Evidence from the Civil Rights Act of 1991

“…Second, it could be that the magnitude of the effect on EV by the CRAFAA of 1976 was considerably smaller than the CRA of 1991's effect on EV, and that this difference in magnitude is the real explanation for the different outcomes in the two studies. Third, given the strong growth in the frequency with which Congress enacted private enforcement regimes beginning in the late 1960s (Farhang 2008), it could be that temporal learning effects were such that by 1991 potential plaintiffs and their attorneys were more cognizant of and responsive to changes in EV than they had been in the mid 1970s. What is clear is that far more empirical research is necessary to arrive at a better understanding of the relative effects of different components of private enforcement regimes.…”

Legislative-Executive Conflict and Private Statutory Litigation in the United States: Evidence from Labor, Civil Rights, and Environmental Law

“…When Congress elects 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—such as who has standing to sue, which parties will bear the costs of litigation, what damages will be available to winning plaintiffs, and whether a judge or jury will make factual determinations and assess damages—that together can have profound consequences for how much or little private enforcement litigation will actually be mobilized (Melnick 1983, 2005; Kagan 2001; Burke 2002; Frymer 2007, chap. 4; Farhang 2008, 2009b). This article refers to this constellation of rules as a statute's “private enforcement regime.”…”

“…In recent years, scholars studying the large role of litigation in American policy implementation have argued that a core and perennial feature of American separation of power structures—conflict between Congress and the president over control of the administrative state—is a critical cause of Congress's purposeful and extensive reliance upon private enforcement regimes for policy implementation (Kagan 2001, 48–49; Burke 2002, 14–15, 173; Melnick 2005; Ginsburg and Kagan 2005, 6–7; Smith 2005; Farhang 2008). Recognizing the choice between bureaucracy and litigation, this recent literature builds, theoretically, upon scholarship seeking to understand the conditions that motivate Congress to limit and curtail administrative power, and argues that those same conditions simultaneously motivate Congress to turn to private lawsuits as a supplementary or alternative implementation vehicle.…”