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Public Regulation and Private Lawsuits in the American Separation of Powers System

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  • Sean Farhang

Abstract

This article investigates causes of the legislative choice to mobilize private litigants to enforce statutes. It specifies the statutory mechanism, grounded in economic incentives, that Congress uses to do so, and presents a theoretical framework for understanding how certain characteristics of separation of powers structures, particularly conflict between Congress and the president over control of the bureaucracy, drive legislative production of this mechanism. Using new and original historical data, the article presents the first empirical model of the legislative choice to mobilize private litigants, covering the years 1887 to 2004. The findings provide robust support for the proposition that interbranch conflict between Congress and the president is a powerful cause of congressional enactment of incentives to mobilize private litigants. Higher risk of electoral losses by the majority party, Democratic control of Congress, and demand by issue‐oriented interest groups are also significant predictors of congressional enactment of such incentives.

Suggested Citation

  • Sean Farhang, 2008. "Public Regulation and Private Lawsuits in the American Separation of Powers System," American Journal of Political Science, John Wiley & Sons, vol. 52(4), pages 821-839, October.
    • Handle: RePEc:wly:amposc:v:52:y:2008:i:4:p:821-839
    DOI: 10.1111/j.1540-5907.2008.00345.x
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    References listed on IDEAS

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    1. Morris Fiorina, 1982. "Legislative choice of regulatory forms: Legal process or administrative process?," Public Choice, Springer, vol. 39(1), pages 33-66, January.
    2. White, Michelle J., 1992. "Legal complexity and lawyers' benefit from litigation," International Review of Law and Economics, Elsevier, vol. 12(3), pages 381-395, September.
    3. McCubbins, Mathew D & Noll, Roger G & Weingast, Barry R, 1987. "Administrative Procedures as Instruments of Political Control," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 3(2), pages 243-277, Fall.
    4. Sean Farhang, 2004. "Institutional Dynamics on the U.S. Court of Appeals: Minority Representation Under Panel Decision Making," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 20(2), pages 299-330, October.
    5. Weingast, Barry R & Moran, Mark J, 1983. "Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission," Journal of Political Economy, University of Chicago Press, vol. 91(5), pages 765-800, October.
    6. Moe, Terry M, 1990. "Political Institutions: The Neglected Side of the Story," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 6(0), pages 213-253.
    7. Roberta Romano, 2004. "The Sarbanes-Oxley Act and the Making of Quack Corporate Governance," Yale School of Management Working Papers amz2653, Yale School of Management, revised 01 Jul 2005.
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    Cited by:

    1. Parker Hevron, 2018. "Judicialization and Its Effects: Experiments as a Way Forward," Laws, MDPI, vol. 7(2), pages 1-21, May.
    2. Sean Farhang, 2009. "Congressional Mobilization of Private Litigants: Evidence from the Civil Rights Act of 1991," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 6(1), pages 1-34, March.

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