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

Abstract

Levels of private litigation enforcing statutes are critically determined by legislative choice. I set out a theoretical framework for understanding how legislators purposefully influence the potential economic value of statutory claims, thereby establishing a market for enforcement consistent with legislative preferences. To test the theory, I examine the effects of the Civil Rights Act (CRA) of 1991, which increased the value of employment discrimination claims under the CRA of 1964, and find that the law increased the number of claims filed. The origins and legislative history of the law also reveal that Congress utilized economic incentives as a policy instrument to purposefully increase private litigation, with a high degree of self‐consciousness, in the course of conflict with other political actors over control of civil rights policy.

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.”…”

“…A quarter century later, Title VII's private enforcement provisions were substantially bolstered in the CRA of 1991, which amended Title VII to allow for compensatory damages for emotional pain and suffering, punitive damages, and trial by jury, significantly increasing private enforcement of the law (105 Stat. 1071; Farhang 2009b). The story of those amendments really begins with conflict between congressional Democrats and the Reagan administration over civil rights policy in the 1980s.…”

Private Enforcement of Statutory and Administrative Law in the United States (and Other Common Law Countries)

“…Farhang (2009) examined the influence of the CRA of 1991 on the volume of private Title VII charges filed with the EEOC from 1980 to 2002. As previously discussed, such administrative filings are a legal precondition to filing an action in federal court, although they do not reveal whether a court action was subsequently filed.…”

“…Like exclusive focus on formal legal rules (Nielsen et al 2010), such a frame can obscure the locus of initiation -clients and lawyers --and the impact of incentives on the prospects for initiation. As a result, it may be more difficult to discern what aspects of regulatory design affect the efficacy and durability of the policy sought to be implemented (Farhang 2009;. 6 Our interest in private enforcement is not confined to courts, however; it extends to administrative agencies and other tribunals.…”

Globalization and legal change: The “Americanization” of European law?

“…20 20 Federal civil rights legislation, for example, gives rise each year to thousands of civil lawsuits against local police departments, local jails, and state prisons for violating individual constitutional rights. Citing the desire to give lawyers more incentives to bring lawsuits, Congress in 1991 enhanced monetary penalties attached to violations of antidiscrimination regulations by employers (Farhang 2005). The Americans with Disabilities Act (1990), by providing disabled people rights to gain access to governmental services free of architectural barriers, stimulated scores of lawsuits and judicial orders requiring city after city to install costly curb ramps on street corners (Sandler & Schoenbrod 2003, pp.…”