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

Abstract

Examining qualitative historical evidence from cases of federal regulation in the areas of labor, civil rights, and environmental policy, this article provides support for the hypothesis that divergence between legislative and executive preferences—a core and distinctive feature of the American constitutional order—creates an incentive for Congress to rely upon private lawsuits, as an alternative to administrative power, to achieve its regulatory goals. It also shows that this mechanism encouraging statutory mobilization of private litigants had been operative long before its powerful growth started in the late 1960s, that it operated in similar fashion with Republican legislators facing Democratic presidents and Democratic legislators facing Republican presidents, and that it remained a source of controversy and an active influence on congressional decision making throughout the half century covering the 1940s through the 1980s.

The Law: The Influence of the President in the Adoption and Enforcement of Private Rights of Action

“…Other scholars have examined this question, primarily with in‐depth case studies of high litigation areas. Farhang (2008; 2009; 2010; 2012) has argued that the statutes themselves are the key to creating private litigation. His analysis focuses, in particular, on two widely used statutory constructions—attorney's fee shifts, whereby successful plaintiffs can collect legal costs from defendants, and damage multipliers that typically allow plaintiffs to receive three times the actual damages in a successful lawsuit.…”