Book contents
- Frontmatter
- Contents
- Contributors
- Acknowledgments
- 1 Introduction
- 2 The Long 1950s as a Policy Era
- 3 Regulation, Litigation, and Reform
- 4 Courts and Agencies in the American Civil Rights State
- 5 The Politics of Labor Policy Reform
- 6 Teachers Unions and American Education Reform
- 7 Progressive Federalism and the Contested Implementation of Obama’s Health Reform
- 8 Federalism and the Politics of Immigration Reform
- 9 Trade Politics and Reform
- 10 The Politics of Intelligence Reform
- 11 Follow the Leader
- 12 Conclusion: Madison Upside Down
- Index
- References
3 - Regulation, Litigation, and Reform
Published online by Cambridge University Press: 05 November 2014
By
Book contents
- Frontmatter
- Contents
- Contributors
- Acknowledgments
- 1 Introduction
- 2 The Long 1950s as a Policy Era
- 3 Regulation, Litigation, and Reform
- 4 Courts and Agencies in the American Civil Rights State
- 5 The Politics of Labor Policy Reform
- 6 Teachers Unions and American Education Reform
- 7 Progressive Federalism and the Contested Implementation of Obama’s Health Reform
- 8 Federalism and the Politics of Immigration Reform
- 9 Trade Politics and Reform
- 10 The Politics of Intelligence Reform
- 11 Follow the Leader
- 12 Conclusion: Madison Upside Down
- Index
- References
Summary
More than 1.6 million lawsuits enforcing federal laws were filed over the past decade, about 97 percent of which were litigated by private parties. The suits spanned the waterfront of federal regulation, covering the policy domains of antitrust, civil rights, consumer protection, environmental law, labor, and securities and exchange. Although the United States had long relied upon private litigation to enforce federal statutes, its frequency of doing so exploded in the late 1960s. From a rate of 3 per 100,000 population in 1967 – a rate that had been roughly stable for a quarter century – it climbed to 13 by 1976, to 21 by 1986, to 29 in 1996, increasing by about 1,000 percent during these three decades. Beginning around the end of1960s, there was an utterly unmistakable explosion of private lawsuits filed to enforce federal statutes.
By the early 1980s, calls emerged in Washington for “litigation reform” in the federal system, seeking changes in federal law calculated to reduce incentives for lawsuits. I call this “anti-litigation reform.” By the 1990s, conflict over litigation reform intensified, with Republican’s predominantly arguing for anti-litigation reform and Democrats predominantly opposing them. Reduction of “frivolous” lawsuits in federal court became the central call of the anti-litigation reformers. Currently pending before Congress is the Republican-sponsored Lawsuit Abuse Reduction Act of 2011, with the goal of reducing frivolous lawsuits in federal court by increasing sanctions against those who file them. Anti-litigation reform bills have become routine in Congress, and partisan battles over the role of litigation in federal regulation have become a regular part of national regulatory politics.
- Type
- Chapter
- Information
- The Politics of Major Policy Reform in Postwar America , pp. 48 - 76Publisher: Cambridge University PressPrint publication year: 2014
References
, “The ‘New’ Social Regulation in Historical and Comparative Perspective,” in Regulation in Perspective, ed. (Cambridge: Harvard University Press, 1981), 155–85, 164–75Google Scholar
, Who Guards the Guardians? Judicial Control of Administration (Athens: University of Georgia Press, 1988), 55–77Google Scholar
, Political Parties and the State: The American Historical Experience (Princeton: Princeton University Press, 1994), 86–94Google Scholar
, Party of the People: A History of the Democrats (New York: Random House, 2003), ch. 27Google Scholar
, Fluctuating Fortunes: The Political Power of Business in America (New York: Basic Books, 1989)Google Scholar
, The Litigation State: Public Regulation and Private Lawsuits in the U.S. (Princeton: Princeton University Press, 2010), 129–213Google Scholar
and , Congress: A Political-Economic History of Roll Call Voting (New York: Oxford University Press, 1997)Google Scholar
, “Courts and Agencies,” in Policy, Making Law: An Interbranch Perspective, eds. and (Washington, DC: Georgetown University Press, 2004), 89–104, 93Google Scholar
and , “The Regulators and the People,” Virginia Law Review 57 (1971): 1069–1108CrossRefGoogle Scholar
, “The Reformation of American Administrative Law,” Harvard Law Review 88 (1975): 1667–1813, 1684–85, 1713–15CrossRefGoogle Scholar
, “Partisan Polarization in Presidential Support: The Electoral Connection,” Congress and the Presidency 30 (2003): 1–36CrossRefGoogle Scholar
, , and , Polarized America: The Dance of Ideology and Unequal Riches (Cambridge, MA: MIT Press, 2006)Google Scholar
, “From Tax and Spend to Mandate and Sue: Liberalism after the Great Society,” in The Great Society and the High Tide of Liberalism, eds. and (Amherst: University of Massachusetts Press, 2005), 387–410, 398–99Google Scholar
, “Legislative-Executive Conflict and Private Statutory Litigation in the United States: Evidence from Labor, Civil Rights, and Environmental Law,” Law and Social Inquiry 37 (2012): 657–85CrossRefGoogle Scholar
, Keeping a Watchful Eye: The Politics of Congressional Oversight (Washington, DC: Brookings Institution, 1990), 27Google Scholar
Hearings on Class Action and Other Consumer Procedures Before the Subcommittee on Commerce and Finance of the House Committee on Interstate and Foreign Commerce, 91st Cong., 2nd sess., 1970
, Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2001)Google Scholar
, “Congressional Mobilization of Private Litigants: Evidence from the Civil Rights Act of 1991,” Journal of Empirical Legal Studies 6 (2009): 1–34CrossRefGoogle Scholar
, “Fee Shifting and the Implementation of Public Policy,” Law and Contemporary Problems 47 (1984): 187–210CrossRefGoogle Scholar
Hearings on Legal Fees Before the Subcommittee on Representation of Citizen Interests of the Senate Judiciary Committee, 93rd Cong., 1st sess., 1973
and , “The Positive Political Theory of Legislative History,” University of Pennsylvania Law Review 151 (2003): 1417–1542CrossRefGoogle Scholar
, The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972 (Princeton: Princeton University Press, 2009),Google Scholar
, “Background and Origin of the Civil Rights Attorney’s Fee Awards Act of 1976,” Urban Law 37 (2005): 653–61, 656Google Scholar
and , “Bridging the Gap between Congress and the Supreme Court: Interest Groups and the Erosion of the American Rule Governing Award of Attorney’s Fees,” Western Political Quarterly 38 (1985): 238–49, 241Google Scholar
Hearings on Legal Fees Before the Subcommittee on Representation of Citizen Interests of the Senate Judiciary Committee, 93rd Cong., 1st sess., 1973
, Nine for Equality under Law: Civil Rights Litigation. A Report to the Ford Foundation (New York: Ford Foundation, 1977)Google Scholar
, “Civil Rights Turns to Gold Lode for Southern Lawyers,” Washington Post, April 4, 1976, 59Google Scholar
, “Public Interest Law: Facing the Problem of Maturity,” University of Arkansas at Little Rock Law Review 33 (2011): 417–33, 418–19Google Scholar
, Balancing the Scales of Justice: Financing Public Interest Law in America (Washington, DC: Council on Public Interest Law, 1976)Google Scholar
“New Council for Public Interest Law is Formed,” American Bar Association Journal 61 (June 1975): 769
, “Regulatory Reform in the Reagan Era,” Maryland Law Review 45 (1986): 253–73, 253–54Google Scholar
and , Reforming Federal Regulation (New Haven: Yale University Press, 1983), 119–32CrossRefGoogle Scholar
, Lawyers for Reagan: The Conservative Litigation Movement and American Government, 1971–87, PhD Dissertation, Columbia University, 2009, 12–149Google Scholar
and , “Rebalancing the Scales of Justice: Assessment of Public Interest Law,” Harvard Journal of Law and Public Policy 7 (1984): 483–505Google Scholar
, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton: Princeton University Press, 2009), 60–66Google Scholar
, “Life, Liberty, and Property Rights,” in Bringing Justice to the People: The Story of the Freedom-Based Public Interest Law Movement, ed. (Washington, DC: Heritage Books, 2004), pp. 42–43Google Scholar
, “Legal Services Agency Battles Reagan Attempt to Cut Off Its Funding,” Los Angeles Times, April 12, 1981, B1Google Scholar
, “Institutions, Rulemaking, and the Politics of Judicial Retrenchment,” Studies in American Political Development 24 (2010): 168–89CrossRefGoogle Scholar
and , “The Role of Attorney Fee Shifting in Public Interest Litigation,” Law and Contemporary Problems 47 (1984): 233–47, 242CrossRefGoogle Scholar
, “. . . And Uncle Sam Wants to Save on His Legal Fees,” Washington Post, February 10, 1982, A25Google Scholar
, “Political Institutions: The Neglected Side of the Story,” Journal of Law, Economics, and Organization 6 (1990): 213–53CrossRefGoogle Scholar
, Dismantling the Welfare State? Reagan, Thatcher, and the Politics of Retrenchment (Cambridge: Cambridge University Press, 1994), 17–19, 39–46CrossRefGoogle Scholar
and , “Virtual Logrolling: How the Court, Congress, and the States Multiply Rights,” Southern California Law Review 68 (1995): 1545–64, 1560Google Scholar
and , “Fee Shifting and Public Policy: The Equal Access to Justice Act,” Judicature 77 (1993): 13–20Google Scholar
, “The Essentials of the Equal Access to Justice Act: Court Awards of Attorney’s Fees for Unreasonable Government Conduct,” Louisiana Law Review 55 (1994): 217–360, 220–29, 280 n. 396Google Scholar
, “The Waiver of Immunity in the Equal Access to Justice Act; Clarifying Opaque Language,” Washington University Law Review 61 (1986) 217–44, 219–21Google Scholar
“Small-Business Groups Protest Reagan’s Veto of Bill for Legal Fees,” Wall Street Journal, November 12, 1984, 3
Hearings on the Legal Fee Equity Act (S. 2802) Before the Subcommittee on the Constitution of the Senate Judiciary Committee, 98th Cong., 2nd sess., 1984, 1–3
Annual Report of the Administrative Office of the United States Courts, table C-2, 1980–1984
, “The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court’s Jurisprudence,” Texas Law Review 84 (2006): 1097–1202Google Scholar
, “Disarming the Private Attorney General,” University of Illinois Law Review 1 (2003): 183–209Google Scholar
, “Closing the Courthouse Door to Civil Rights Litigants,” University of Pennsylvania Journal of Constitutional Law 5 (2003): 537–57Google Scholar
, Political Foundations of Judicial Supremacy (Princeton, NJ: Princeton University Press, 2007)CrossRefGoogle Scholar
, “How Political Parties Use the Courts to Advance Their Agendas,” American Political Science Review 96 (2002): 511–24CrossRefGoogle Scholar
, “Constitutional Vision and Supreme Court Decisions: Reconsidering Roosevelt on Race,” Studies in American Political Development, 14 (2000): 20–50CrossRefGoogle Scholar
, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (1993): 35–73CrossRefGoogle Scholar
and , “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2 (2004): 233–48CrossRefGoogle Scholar