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New book by Burbank investigates the pushback against private enforcement

October 02, 2017

One of the primary mechanisms for the enforcement of civil rights laws is the ability of plaintiffs to recover their attorney’s fees if they prevail in private litigation. This method of enforcing rights is called private enforcement, and it has been a central instrument to implement social and economic policy since the 1960s. But the rise of private enforcement led to a counterrevolution aimed at curtailing it, and that counterrevolution is the focus of a new book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, by Penn Law professor Stephen B. Burbank and his co-author, Sean Farhang.

Burbank is David Berger Professor for the Administration of Justice and the author of definitive works on federal court rulemaking, interjurisdictional preclusion, litigation sanctions, international civil litigation, and judicial independence and accountability. Farhang is Professor of Law and Associate Professor of Political Science and Public Policy at the University of California, Berkeley. He is the author of the award-winning book, The Litigation State (Princeton 2010).

Although liberals evinced faith in a centralized, federal bureaucracy for regulation during the New Deal, the authors explain, by the 1960s liberals became disillusioned as the agencies tasked with regulating business came to identify with the businesses they oversaw as constituencies in need of protection, and the bureaucracy came to be seen as a conservative force.

One of the less studied ways liberal groups combated this change, Burbank and Farhang write, was to advocate for rules that circumvented the administrative state by encouraging direct enforcement of legislative mandates through private lawsuits against targets of regulations, such as discriminating employers and polluting factories. Rules that authorized the recovery of attorney’s fees or multiple damages if a plaintiff won the case were especially important to encouraging private enforcement.

The Civil Rights Act of 1964 was a turning point for private enforcement, Burbank and Farhang note. The support of Republicans was crucial to the law’s passage, and they stripped the strong administrative powers that civil rights liberals had proposed from the bill, replacing them with private enforcement instead. Liberals insisted on a fee-shifting mechanism, and — although the measure was viewed initially as a compromise — the result shifted the landscape in favor of civil rights groups. The law led to resources for non-profit public interest groups, a rise in the number of such groups, and the growth of a private for-profit bar to litigate civil rights claims.

But the advance of private enforcement was contested by a countermovement, which is the subject of Burbank and Farhang’s book.

“The counterrevolution’s strategy was to leave substantive rights in place while retrenching the infrastructure for their private enforcement,” the authors write.

The movement employed three different strategies: trying to amend existing federal statutes to reduce opportunities for private enforcement by eliminating or reducing the incentives that stimulated it; trying to amend Federal Rules of Civil Procedure that were salient to private enforcement; and litigating with the goal of gaining rulings in the federal courts that limited private enforcement. Of those three strategies, Burbank and Farhang explain, the most successful was the campaign in the courts.

To assess the legislative impact, the authors constructed an original dataset of 500 bills introduced from 1973 to 2014 that attempted to retrench private enforcement. They show that these efforts largely failed. Indeed, early in the counterrevolution, they were abandoned by the Reagan administration, because of concerns that the bills were seen as “anti-rights” and would be politically costly.

To examine the rulemaking element of the retrenchment effort, Burbank and Farhang compiled original data sets from 1960 to 2014 identifying every person who served on the Advisory Committee on Civil Rules. These members are appointed by the Chief Justice of the United States. The authors identified the occupation, party affiliation of the appointing president for federal judges, and practice type for practitioners, and they also collected every amendment to the Federal Rules proposed by the committee in that 55-year period.

Although the Advisory Committee came to be dominated by judges appointed by Republicans and corporate lawyers over time, Burbank and Farhang explain, few of their proposals have been relevant to private enforcement. Moreover, although those that were increasingly tended to disfavor plaintiffs, changes to the rulemaking process during the 1980s made bold change very difficult.

Finally, the campaign in the courts sought to shrink opportunities and incentives for private enforcement by focusing on issues such as standing, damages, fee awards, and class actions, the authors write, and this was the most successful venue for retrenchment. Using both quantitative and qualitative data, Burbank and Farhang show how an increasingly conservative Supreme Court turned against the private enforcement of federal rights. They found that in cases with at least one dissent, the probability of success for plaintiffs in litigating private enforcement issues in front of the Supreme Court has declined for 40 years, and in 2014, plaintiffs lost about 90 percent of the time, largely due to the votes of conservative justices.

Strikingly, the authors find that ideology had a greater influence on justices’ votes in private enforcement cases interpreting Federal Rules of Civil Procedure (such as Rule 23 on class actions) than in the larger domain of private enforcement cases or in cases involving the interpretation of the underlying substantive rights. In support of one hypothesis they offer to explain this phenomenon, the authors demonstrate empirically that newspapers cover  the Court’s rulings on substantive rights far more extensively than rulings on laws providing opportunities and incentives to enforce those rights, which are perceived to be technical.

“[T]he Court’s decisions on rights enforcement, because of their lower public visibility, are less constrained by public opinion and therefore less tethered to democratic governance,” write Burbank and Farhang.

Although the effects of any particular legal change on private enforcement can be difficult to pin down, the authors have no doubt about the overall effect of the retrenchment movement.

“[W]e feel no uncertainly that hundreds of decisions over more than 40 years restricting private rights of action, standing, attorney’s fees, damages, the ability to litigate rather than arbitrate, and access under Federal Rules — cumulatively — have diminished private enforcement of federal rights.”

Finally, observing that a majority of the cases in their data involved the interpretation of private enforcement regimes in federal statutes, the authors suggest that “judicial subversion of legislation raises troubling questions from the standpoint of democratic values.”


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