Litigation and Reform

Abstract

This paper examines struggles over litigation reform in federal regulation during roughly the two decades from passage of the Civil Rights Act of 1964 to the end Reagan’s first term. It first traces the historical and political factors that led liberal advocates of the new social regulation to grow increasing skeptical of the administrative state as an effective enforcer, and to turn instead to a strategy of creating market incentives for private lawsuits for enforcement, a model of privatization learned from the experience of civil rights. The paper shows how the contemporary anti-litigation reform movement emerged in the early Reagan years as a challenged to the successes of the pro-litigation reform movement over the previous decade, and as one component of the administration’s broader deregulatory program. Finally, it assesses why Reagan’s anti-litigation reforms failed, highlighting political and institutional sources of the resilience of America’s private enforcement infrastructure.

Keywords: litigation, regulation

JEL Classification: K2, K4, K41, K42