Legislating Incentives for Attorney Representation in Civil Rights Litigation

Abstract

Congress routinely relies upon private lawsuits to enforce its mandates. In this paper we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel dataset based upon review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981 to 2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to secure counsel. We find that over the course of the decade after passage, the law substantially increased the probability that Title VII plaintiffs would be represented by counsel, and that in doing so it reversed a decade long trend in the opposite direction.

Keywords: Representation, job discrimination, private enforcement, civil rights, litigation, change point models

JEL Classification: C13, D78, J78, K31, K41