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Special Incentives to Sue

42 Pages Posted: 25 Sep 2009 Last revised: 26 Dec 2014

Margaret H. Lemos

Duke University School of Law

Date Written: January 26, 2010


In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when such incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. This dynamic has been neglected in the academic commentary to date, which has focused on litigant behavior alone while ignoring the role that judges play in any enforcement regime that depends on litigation. I show that caseload pressures and concerns about excessive litigation have driven judges to adopt procedural rules that dampen the effects of fee shifts and damage enhancements. Furthermore, judges have offset incentives to sue by narrowly interpreting the relevant substantive provisions of federal law.

Keywords: fee-shifting, civil rights, Title VII, Civil Rights Act, treble damages, settlement, private enforcement, qui tam, private attorney general

Suggested Citation

Lemos, Margaret H., Special Incentives to Sue (January 26, 2010). Cardozo Legal Studies Research Paper No. 271. Available at SSRN: or

Margaret Lemos (Contact Author)

Duke University School of Law ( email )

Box 90360
210 Science Drive
Durham, NC 27708
United States


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