Rights and Retrenchment in the Trump Era

29 Pages Posted: 24 May 2018 Last revised: 7 Nov 2018

See all articles by Stephen B. Burbank

Stephen B. Burbank

University of Pennsylvania Carey Law School

Sean Farhang

U.C. Berkeley Law School

Date Written: October 2018


Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in the “Trump Era” has thus far been predictable.

We anticipate that the Court will continue as the institutional leader in the project to retrench private enforcement in the near future. With Justice Gorsuch replacing Justice Scalia, we see little reason to anticipate a change in preferences in the Court’s membership, and the institutional attributes that make retrenchment easier for the Court than for Congress or the rulemakers remain constant.

Unified Republican control of Congress and the presidency certainly are auspicious developments for any Republican legislative project. But as we demonstrated in our book, divesting groups of existing rights is especially challenging within the veto-point ridden American legislative process.

Of the eight proposals to emerge from the Civil Rules Committee since 2014, the great majority, if not all, were either not salient to private enforcement or not directional (i.e., either clearly pro-plaintiff or pro-defendant). This finding is not surprising. In the entire 1960-2014 period, only 33 of 262 proposals (at the rule level) would predictably affect private enforcement. Arguably the only salient proposal (at the rule level) is the currently pending collection of proposed amendments to Rule 23. Given that the potential significance of proposals to amend the class action rule dwarfs the potential significance of all other proposals from 2015-17 combined, it is striking that none of them has sufficiently clear implications for private enforcement to warrant directional coding according to our standards.

Keywords: Courts, private enforcement of rights, politics & ideology of judiciary, polarization, SCOTUS, Supreme Court, Congress, Rules Enabling Act, conservative legal movement, restrictions on private enforcement of legislation, amendments to Rule 23, class actions, litigation reform, empirical research

Suggested Citation

Burbank, Stephen B. and Farhang, Sean, Rights and Retrenchment in the Trump Era (October 2018). Fordham Law Review, Vol. 87, Pg. 37, 2018, U of Penn Law School, Public Law Research Paper No. 18-12, UC Berkeley Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3179075

Stephen B. Burbank (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Sean Farhang

U.C. Berkeley Law School ( email )

694 Simon Hall
Berkeley, CA 94720
United States

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