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Sean Farhang is assistant professor in the Goldman School of Public Policy at the University of California, Berkeley.

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"Farhang is at the forefront of a new generation of scholars who have begun to broaden the parameters of the American state and its reach into society. Drawing upon an impressive range of methods, sources, and theory, Farhang shows us how Congress and the administration extended the reach of regulation by inducing private litigants and the legal profession to cocreate a vast regulatory regime. A shrewd reading of the new mode of state-building."--Dan Carpenter, Harvard University

"This book is a major advance in the understanding of American government. Farhang demonstrates that America's distinctive reliance on adversarial legalism to enforce civil rights does not reflect a power grab by lawyers and judges. Instead, it stems from deliberate Congressional choices, in the face of political polarization, to use private litigation to protect individual rights."--Robert A. Kagan, University of California, Berkeley

"Private enforcement of statutory provisions is an enormously significant aspect of our political system and economy, yet researchers have largely ignored this issue. This seminal and important book exhaustively analyzes the theory behind private enforcement and persuasively sets out the history of its intentional creation as a tool of regulation."--Frank Cross, University of Texas, Austin

"This is an expertly executed, rigorous, and innovative book about American political development. With a commanding, multidisciplinary approach, Farhang develops the concepts of state fragmentation and capacity, and brings a sophisticated understanding of ideology to the discussion."--John Skrentny, University of California, San Diego

"This is an exceptionally well-crafted, clearly argued, and illuminating book on the growing use of private litigation as a regulatory tool. Farhang's crisply framed analysis crosses subfields of American politics and shows how Democrats and Republicans collaborated to turn U.S. policy toward a reliance on litigation."--Charles Epp, University of Kansas

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The Litigation State

PRINCETON UNIVERSITY PRESS

Contents

Illustrations and Tables......................................................................ixAcknowledgments...............................................................................xiChapter 1 An Introduction to Private Enforcement Regimes.....................................3Chapter 2 Institutional Foundations of Private Enforcement Regimes...........................19Chapter 3 An Empirical Model of Enactment of Private Enforcement Regimes.....................60Introduction to Part II.......................................................................85Chapter 4 Foundations: The Civil Rights Act of 1964..........................................94Chapter 5 Reverberations: 1965-1976..........................................................129Chapter 6 Escalation: The Civil Rights Act of 1991...........................................172Chapter 7 Conclusions and Implications.......................................................214Notes.........................................................................................235Index.........................................................................................293

Chapter One

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...