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

Published online by Cambridge University Press:  27 December 2018

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.

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Articles
Copyright
Copyright © American Bar Foundation, 2012 

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References

References

Administrative Office of the US Courts. 19751988. Annual Report of the Administrative Office of the United States Courts .Google Scholar
Allen, Stephen G. 198990. Environmental Bounty Hunters: Reallocating Enforcement Authority between the Citizens and the Government under the Clean Water Act. Journal of Mineral Law and Policy 5:257303.Google Scholar
Andreen, William L. 1991. The Evolving Law of Environmental Protection in the United States: 1970–1991. Environmental Planning and Law Journal 9:96110.Google Scholar
Andrews, Richard N. L. 1984. Deregulation: The Failure at EPA. In Environmental Policy in the 1980s: Reagan's New Agenda, ed. Vig, Norman J. and Kraft, Michael E., 161–80. Washington, DC: Congressional Quarterly Press.Google Scholar
Bardach, Eugene, and Kagan, Robert A. 2002. Going by the Book: The Problem of Regulatory Unreasonableness. New Brunswick, NJ: Transaction Publishers.Google Scholar
Barnes, Jeb. 1997. Bankrupt Bargain: Bankruptcy Reform and the Politics of Adversarial Legalism. Journal of Law and Politics 13:893935.Google Scholar
Barnes, Jeb. 2007. Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making. Annual Review of Political Science 10:2544.Google Scholar
Belz, Herman. 1991. Equality Transformed: A Quarter‐Century of Affirmative Action. New Brunswick, NJ: Transaction Publishers.Google Scholar
Blomquist, Robert F. 1988. Rethinking the Citizen as Prosecutor Model of Environmental Enforcement under the Clean Water Act: Some Overlooked Problems of Outcome‐Dependent Values. Georgia Law Review 22:337423.Google Scholar
Blumrosen, Alfred W. 1971. Black Employment and the Law. New Brunswick, NJ: Rutgers University Press.Google Scholar
Blumrosen, Alfred W. 1993. Modern Law: The Law Transmission System and Equal Employment Opportunity. Madison: University of Wisconsin Press.Google Scholar
Brudney, James J. 2005. Isolated and Politicized: The NLRB's Uncertain Future. Comparative Labor Law & Policy Journal 26:221–60.Google Scholar
Buente, David T. 1991. Citizen Suits and the Clean Air Act Amendments of 1990: Closing the Enforcement Loop. Environmental Law 21:2233–52.Google Scholar
Burke, Thomas F. 2002. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society. Berkeley: University of California Press.Google Scholar
Burstein, Paul, and Monaghan, Kathleen. 1986. Equal Employment Opportunity and the Mobilization of Law. Law & Society Review 20:355–84.Google Scholar
Cameron, Charles M. 2000. Veto Bargaining: Presidents and the Politics of Negative Power. New York: Cambridge University Press.Google Scholar
Citizens' Commission on Civil Rights. 1989. One Nation, Indivisible: The Civil Rights Challenge for the 1990s. Washington, DC: Citizens' Committee on Civil Rights.Google Scholar
Coffee, John C. Jr. 1983. Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter Is Not Working. Maryland Law Review 42:215–88.Google Scholar
Collier, David, Brady, Henry E., and Seawright, Jason. 2004. Sources of Leverage in Causal Inference: Toward an Alternative View of Methodology. In Rethinking Social Inquiry: Diverse Tools, Shared Standards, ed. Brady, Henry E. and Collier, David, 229–66. Lanham, MD: Rowman & Littlefield.Google Scholar
Comment. 1953. California Jurisdictional Strike Act. Stanford Law Review 6:183189.Google Scholar
Congressional Record. 1964, 1970, 199091. Washington, DC: U.S. Government Printing Office.Google Scholar
Cox, Archibald. 1947. Some Aspects of the Labor Management Relations Act. Harvard Law Review 61:149.Google Scholar
Cross, Frank. 1989. Rethinking Environmental Citizen Suits. Temple Environmental Law & Technology Journal 8:5576.Google Scholar
Decker, Jefferson. 2009. Lawyers for Reagan: The Conservative Litigation Movement and American Government, 1971–87. PhD diss., Department of History, Columbia University, New York, NY.Google Scholar
Dereshinsky, Ralph M., Berkowitz, Alan D., and Miscimarra, Philip A. 1981. The NLRB and Secondary Boycotts. Philadelphia: Industrial Research Unit, Wharton School, University of Pennsylvania.Google Scholar
Derfner, Mary Frances. 1977. One Giant Step: The Civil Rights Attorney's Fees Awards Act of 1976. Saint Louis University Law Journal 21:441–51.Google Scholar
Dubofsky, Melvyn. 1994. The State and Labor in Modern America. Chapel Hill: University of North Carolina Press.Google Scholar
Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press.Google Scholar
Epstein, David, and O'Halloran, Sharyn. 1999. Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers. New York: Cambridge University Press.Google Scholar
Eskridge, William N. Jr. 1991. Reneging on History: Playing the Court/Congress/President Civil Rights Game. California Law Review 79:613–84.Google Scholar
Eskridge, William N. Jr., Frickey, Phillip P., and Garrett, Elizabeth. 2001. Cases and Materials on Legislation: Statutes and the Creation of Public Policy, 3rd ed. Saint Paul, MN: West Group.Google Scholar
Estlund, Cynthia L. 2002. The Ossification of American Labor Law. Columbia Law Review 102:15271612.Google Scholar
Farhang, Sean. 2008. Public Regulation and Private Lawsuits in the American Separation of Powers System. American Journal of Political Science 52:821–39.Google Scholar
Farhang, Sean. 2009a. The Political Development of Job Discrimination Litigation. Studies in American Political Development 23:2360.Google Scholar
Farhang, Sean. 2009b. Congressional Mobilization of Private Litigants: Evidence from the Civil Rights Act of 1991. Journal of Empirical Legal Studies 6:134.Google Scholar
Farhang, Sean, and Katznelson, Ira. 2005. The Southern Imposition: Congress and Labor in the New Deal and Fair Deal. Studies in American Political Development 19:130.Google Scholar
Feller, David A. 1983. Private Enforcement of Federal Anti‐Pollution Laws through Citizen Suits: A Model. Denver Law Review 60:553–71.Google Scholar
Fiorina, Morris P. 1982. Legislative Choice of Regulatory Forms: Legal Process or Administrative Process? Public Choice 39:3366.Google Scholar
Fisher, Louis, and Devins, Neal. 2006. Political Dynamics of Constitutional Law, 4th ed. Saint Paul, MN: West Group.Google Scholar
Forbath, William. 1998. Law and the Shaping of the American Labor Movement. Cambridge, MA: Harvard University Press.Google Scholar
Fotes, Stephen. 1985. Private Enforcement of the Clean Air Act and the Clean Water Act. American University Law Review 35:127–73.Google Scholar
Frankfurter, Felix, and Greene, Nathan. 1930. The Labor Injunction. New York: MacMillan.Google Scholar
Friedan, Betty. 1981. The Second Stage. Cambridge, MA: Harvard University Press.Google Scholar
Frymer, Paul. 2007. Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party. Princeton, NJ: Princeton University Press.Google Scholar
Galanter, Marc. 1974. Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change. Law & Society Review 9:95160.Google Scholar
Gerring, John. 2007. Case Study Research: Principles and Practices. New York: Cambridge University Press.Google Scholar
Gillman, Howard. 2002. How Political Parties can use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891. American Political Science Review 96:511–24.Google Scholar
Gillman, Howard. 2008. Courts and the Politics of Partisan Coalitions. In Oxford Handbook of Law and Politics, ed. Whittington, Keith, Kelemen, R. Daniel, and Caldeira, Gregory A., 644–62. New York: Oxford University Press.Google Scholar
Ginsburg, Tom, and Kagan, Robert A. 2005. Introduction: Institutionalist Approaches to Courts as Political Actors. In Institutions and Public Law: Comparative Approaches, ed. Ginsburg, Tom and Kagan, Robert A., 116. New York: Peter Lang.Google Scholar
Glazer, Nathan. 1975. Towards an Imperial Judiciary? Public Interest 41:104–23.Google Scholar
Goodman, Marshall R., and Wrightson, Margaret T. 1987. Managing Regulatory Reform: The Reagan Strategy and Its Impact. New York: Praeger.Google Scholar
Govan, Reginald C. 1993. Honorable Compromises and the Moral High Ground: The Conflict between the Rhetoric and the Content of the Civil Rights Act of 1991. Rutgers Law Review 46:1242.Google Scholar
Greve, Michael S. 1987. Why Defunding the Left Failed. Public Interest 89:91106.Google Scholar
Gross, James A. 1981. The Reshaping of the National Labor Relations Board: National Labor Policy in Transition, 1937–1947. Albany: State University of New York Press.Google Scholar
Hattam, Victoria C. 1993. Labor Visions and State Power: The Origins of Business Unionism in the United States. Princeton, NJ: Princeton University Press.Google Scholar
Hardin, Patrick, Higgins, John E. Jr., Hexter, Christopher T., and Neighbours, John T., eds. 2002. The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act, 4th ed. Washington, DC: Bureau of National Affairs.Google Scholar
Huber, John D., and Shipan, Charles R. 2002. Deliberate Discretion?: The Institutional Foundations of Bureaucratic Autonomy. New York: Cambridge University Press.Google Scholar
Jacobson, Gary. 2003. Partisan Polarization in Presidential Support: The Electoral Connection. Congress & the Presidency 30 (1): 136.Google Scholar
Johns, Winthrop A. 1951. Picketing and Secondary Boycotts under the Taft‐Hartley Act. Labor Law Journal 2:257–69.Google Scholar
Kagan, Robert A. 2001. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard University Press.Google Scholar
Kenski, Henry C., and Kenski, Margaret Corgan. 1984. Congress against the President: The Struggle over the Environment. In Environmental Policy in the 1980s: Reagan's New Agenda, ed. Vig, Norman J. and Kraft, Michael E., 97120. Washington, DC: Congressional Quarterly Press.Google Scholar
Lovell, George. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy. New York: Cambridge University Press.Google Scholar
Maurrasse, Maria V. 1991. Oklahoma v. EPA: Does the Clean Water Act Provide an Effective Remedy to Downstream States or is There Still Room Left for Federal Common Law? University of Miami Law Review 45:1137–93.Google Scholar
McCarty, Nolan, Poole, Keith T., and Rosenthal, Howard. 2006. Polarized America: The Dance of Ideology and Unequal Riches. Cambridge, MA: MIT Press.Google Scholar
McCubbins, Mathew, Noll, Roger G., and Weingast, Barry R. 1987. Administrative Procedures as Instruments of Political Control. Journal of Law, Economics, & Organization 3 (2): 243–77.Google Scholar
Melnick, R. Shep. 1983. Regulation and the Courts: The Case of the Clean Air Act. Washington, DC: Brookings Institution Press.Google Scholar
Melnick, R. Shep. 2005. From Tax‐and‐Spend to Mandate‐and‐Sue: Liberalism after the Great Society. In The Great Society and the High Tide of Liberalism, ed. Milkis, Sidney M. and Mileur, Jerome M., 387410. Amherst: University of Massachusetts Press.Google Scholar
Melnick, R. Shep. 2009. Taking Remedies Seriously: Can Courts Control Public Schools? In From Schoolhouse to Courthouse: The Judiciary's Role in American Education, ed. Dunn, Joshua M. and West, Martin R., 1748. Washington, DC: Brookings Institution Press.Google Scholar
Mikva, Abner J. 1990. Deregulating through the Back Door: The Hard Way to Fight a Revolution. University of Chicago Law Review 57:521–41.Google Scholar
Miller, Jeffrey G. 2008. Remedying Our Fragmented Governmental Structures to Deal with Our Nation‐on‐Edge Problems. Environmental Law Reporter 38:10187–92.Google Scholar
Millis, Harry A., and Brown, Emily Clark. 1950. From the Wagner Act to Taft‐Hartley: A Study of National Labor Relations. Chicago: University of Chicago Press.Google Scholar
Mintz, Joel A. 1995. Enforcement at the EPA: High Stakes and Hard Choices. Austin: University of Texas Press.Google Scholar
Moe, Terry M. 1989. The Politics of Bureaucratic Structure. In Can the Government Govern? ed. Chubb, John E. and Peterson, Paul E., 267329. Washington, DC: Brookings Institution Press.Google Scholar
Moe, Terry M. 1990. Political Institutions: The Neglected Side of the Story. Journal of Law, Economics, & Organization 6:213–53.Google Scholar
Moe, Terry M., and Caldwell, Michael. 1994. The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems. Journal of Institutional and Theoretical Economics 150:171–95.Google Scholar
Montalvo, Eric. 2002. Operational Encroachment: Woodpeckers and their Congressman. Temple Environmental Law and Technology Journal 20:219–50.Google Scholar
National Labor Relations Board (NLRB). 1948. Legislative History of the Labor Management Relations Act, 1947. Washington, DC: US Government Printing Office.Google Scholar
Occhialino, , , Anne Noel, and Vail, Daniel. 2005. Why the EEOC (Still) Matters. Hofstra Labor and Employment Law Journal 22:671709.Google Scholar
O'Connor, Karen, and Epstein, Lee. 1985. 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 38:238–49.Google Scholar
Quarles, John. 1976. Cleaning up America: An Insider's View of the Environmental Protection Agency. Boston: Houghton Mifflin.Google Scholar
Rodriguez, Daniel, and Weingast, Barry. 2003. The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation. University of Pennsylvania Law Review 151:1489–96.Google Scholar
Sachs, Benjamin I. 2008. Employment Law and Labor Law. Cardozo Law Review 29:26852748.Google Scholar
Sander, Richard H., and Williams, E. Douglass. 1989. Why Are There So Many Lawyers? Perspectives on a Turbulent Market. Law & Social Inquiry 14:431–79.Google Scholar
Sandler, Ross, and Schoenbrod, David. 2002. Democracy by Decree: What Happens When Courts Run Government. New Haven, CT: Yale University Press.Google Scholar
Scher, Seymour. 1962. The Politics of Agency Organization. Political Research Quarterly 15:328–44.Google Scholar
Sherman, Sidney. 1955. Recognition and Jurisdictional Strikes under Taft‐Hartley. Labor Law Journal 6:211–19.Google Scholar
Slichter, Sumner H. 1947. The Challenge of Industrial Relations: Trade Unions, Management, and the Public Interest. Ithaca, NY: Cornell University Press.Google Scholar
Smith, Joseph L. 2005. Congress Opens the Courthouse Doors: Statutory Changes to Judicial Review under the Clean Air Act. Political Research Quarterly 58:139–49.Google Scholar
Stephenson, Matthew. 2005. Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies. Virginia Law Review 91:93173.Google Scholar
Teller, Ludwig. 1949. The Taft‐Hartley Act and “Government by Injunction. Virginia Law Review 35:5083.Google Scholar
Thompson, Barton H. Jr. 2000. The Continuing Innovation of Citizen Enforcement. University of Illinois Law Review 185:185236.Google Scholar
US House of Representatives (US House). 1935. National Labor Relations Board. 74th Cong., 1st Sess. H. Report 1147.Google Scholar
US House of Representatives (US House). 1939. Hearings before the House Committee on Labor on Proposed Amendments to the National Labor Relations Act. 76th Cong., 1st Sess.Google Scholar
US House of Representatives (US House). 1940. Hearings before the Special Committee to Investigate National Labor Relations Board. 76th Cong., 3d Sess.Google Scholar
US House of Representatives (US House). Committee on the Judiciary. 1963a. Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on Miscellaneous Proposals Regarding the Civil Rights of Persons within the Jurisdiction of the United States. 88th Cong., 1st Sess.Google Scholar
US House of Representatives (US House). Committee on Education and Labor. 1963b. Equal Employment Opportunity Act of 1963. 88th Cong., 1st Sess. H. Report 570.Google Scholar
US House of Representatives (US House). 1963c. Civil Rights Act of 1963. 88th Cong., 1st Sess. H. Report 914.Google Scholar
US House of Representatives (US House). 1970. Clean Air Act Amendments of 1970. 91st Cong., 2d Sess. H. Report 1146.Google Scholar
US House of Representatives (US House). Committee on Public Works and Transportation. 1982. Hazardous Waste Contamination of Water Resources (Access to EPA Superfund Records), Hearing before the Subcommittee on Investigations and Oversight of the House Committee on Public Works and Transportation. 97th Cong., 2d Sess.Google Scholar
US House of Representatives (US House). Committee on Education and Labor. 1983. Oversight Hearings before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor on the Federal Enforcement of Equal Employment Opportunity Laws, 98th Cong., 1st Sess.Google Scholar
US House of Representatives (US House). Committee on Energy and Commerce. 1984. Investigation of the Environmental Protection Agency, Report on the President's Claim of Executive Privilege Over EPA Documents, Abuses in the Superfund Program, and Other Matters, by the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce. 98th Cong., 2d Sess. Committee Print 98‐AA.Google Scholar
US House of Representatives (US House). Committee on Education and Labor. 1986. Hearings before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor on Equal Employment Opportunity Commission Policies Regarding Goals and Timetables in Litigation Remedies. 99th Cong., 2d Sess.Google Scholar
US House of Representatives (US House). Committee on Government Operations. 1987a. Hearing before the Subcommittee on Employment and Housing of the House Committee on Government Operations on Processing of EEO Complaints in the Federal Sector: Problems and Solutions, 100th Cong., 1st Sess.Google Scholar
US House of Representatives (US House). Committee on Government Operations. 1987b. PCB Disposal: Is the EPA Doing Its Job? Hearing before a Subcommittee of the House Committee on Government Operations, 100th Cong., 1st Sess.Google Scholar
US House of Representatives (US House). 1990a. Civil Rights Act of 1990. 101st Cong., 2d Sess. H. Report 644.Google Scholar
US House of Representatives (US House). Committee on Education and Labor & Committee on the Judiciary. 1990b. Joint Hearings before the Committee on Education and Labor and the Subcommittee on Civil Rights and Constitutional Rights of the Committee on the Judiciary on HR 4000, The Civil Rights Act of 1990, 101st Cong., 2d Sess.Google Scholar
US Senate. Committee on Public Works. 1970. National Air Quality Standards Act. 91st Cong., 2d Sess. S. Report 1196.Google Scholar
US Senate. Committee on Public Works. 1974. Legislative History of the Clean Air Amendments of 1970. 93d Congress. Washington, DC: Covington & Burling.Google Scholar
US Senate. Committee on Labor and Human Resources. 1990. Civil Rights Act of 1990. 101st Cong., 2d Sess. S. Report 315.Google Scholar
US Senate. Committee on Labor and Human Resources. 1990b. Hearings on S 2104 before the Senate Committee on Labor and Human Resources, 101st Cong., 2d Sess.Google Scholar
US Senate. Committee on Environment and Public Works. 1993. Legislative History of the Clean Air Act Amendments of 1990, 103d Cong., 1st Sess.Google Scholar
Whalen, Charles, and Whalen, Barbara. 1985. The Longest Debate: A Legislative History of the 1964 Civil Rights Act. Washington, DC: Seven Locks Press.Google Scholar
Waxman, Henry. 1991. An Overview of the Clean Air Act Amendments of 1990. Environmental Law 21:17211816.Google Scholar
Wilson, James Q. 1989. Bureaucracy: What Government Agencies Do and Why They Do It. New York: Basic Books.Google Scholar
Wines, William. 1994. Title VII Interpretation and Enforcement in the Reagan Years (1980–89): The Winding Road to the Civil Rights Act of 1991. Marquette Law Review 77:645718.Google Scholar
Wood, Dan B. 1990. Does Politics Make a Difference at the EEOC? American Journal of Political Science 34:503–30.Google Scholar

Statutes Cited

Labor Management Relations Act (1947), Pub. L. No. 80–101, 61 Stat. 136.Google Scholar
Air Pollution Control Act (1955), Pub. L. No. 84–159, 69 Stat. 322.Google Scholar
Civil Rights Act of 1991 (1991), Pub. L. No. 102–166, 105 Stat. 1071.Google Scholar
Clean Air Act (1963), Pub. L. No. 88–206, 77 Stat. 392.Google Scholar
Clean Air Act Amendments (1990), Pub. L. No. 101–549, 104 Stat. 2399.Google Scholar
Clean Air Act Extension (1970), Pub. L. No. 91–604, 84 Stat. 1676.Google Scholar
Wagner Act (1935), Pub. L. No. 74–198, 49 Stat. 449.Google Scholar