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

Goldman School of Public Policy Working Paper No. GSPP10-008

55 Pages Posted: 3 Oct 2010

Date Written: October 1, 2010

Abstract

Examining qualitative historical evidence from cases of federal regulation in the areas of labor, civil rights, and environmental policy, this paper 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 operates 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.

Suggested Citation

Farhang, Sean, Legislative-Executive Conflict and Private Statutory Litigation in the US: Evidence from Labor, Civil Rights, and Environmental Law (October 1, 2010). Goldman School of Public Policy Working Paper No. GSPP10-008, Available at SSRN: https://ssrn.com/abstract=1686063 or http://dx.doi.org/10.2139/ssrn.1686063

Sean Farhang (Contact Author)

U.C. Berkeley Law School ( email )

694 Simon Hall
Berkeley, CA 94720
United States

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