The litigation state: Public regulation and private lawsuits in the American separation of powers system
This dissertation explores the ways in which legislators make choices in constructing statutes that determine the extent to which private litigants will enforce them, and it probes the causes and consequences of those choices. In the first part of the dissertation I present original data on several indicator variables over the course of the 20th century that represent Congress' propensity to seek to mobilize private litigants to enforce federal policy. This data allows me to test hypotheses about what drives Congress to make the choice to mobilize private litigants. Among the findings presented are that increasing conflict between Congress and the president, making it more difficult for Congress to control the bureaucratic machinery of policy implementation, increases Congress' propensity to mobilize private litigants to implement its policy goals. I thus link separation of powers structures to litigiousness in public policy implementation in the United States.
The second part of the dissertation examines the area of the civil rights litigation to closely assess the consequences of Congress' enactment of incentives for private enforcement. Examining the effects of the Civil Rights Act of 1991, which sought to increase incentives to assert certain already existing civil rights claims, I find strong evidence that the law succeeded in increasing private enforcement. I further evaluate whether the use of private litigants as instruments of implementation actually works in achieving regulatory goals. Examining the effect of rates of employment discrimination litigation on employer adoption of compliance policies, I find that litigation rates are indeed a key predictor of employer compliance efforts.
I conclude that statutory litigation rates are significantly politically constructed by legislators pursuing policy goals in the face of a variety of constraints, most notably separation of powers structures. My account shows that the system of litigant-driven policy implementation has its genesis not primarily in overreaching judges and greedy plaintiffs, but rather in legislators acting through the ordinary democratic process. By highlighting the extent to which statutory litigation is orchestrated by legislators, this account suggests a more robust and interventionist state than is commonly supposed by the conventional "weak state" characterization of the American state.