Legislating for Litigation: Delegation, Public Policy, and Democracy

78 Pages Posted: 2 Oct 2018

Date Written: September 23, 2018


When Congress enacts command-and-control regulation, it chooses between implementation through litigation and courts, through bureaucracy, or through a hybrid regime. Since the late 1960s, the frequency with which Congress has relied on civil litigation for frontline enforcement of statutes grew dramatically, and with it grew rates of federal statutory litigation and the role of courts in federal regulatory policy. By the late 1970s, and with increasing intensity over the decades, a critique of these developments emerged that included two core themes. Relative to administrative implementation, direct enforcement through civil litigation (1) weakens democratic control over public policy because litigants and federal judges are harder for the elected branches to control than bureaucracy, and (2) degrades the quality of public policy because the judiciary is a less capable policy-making infrastructure than bureaucracy.

This Article argues that Congress’s reliance on frontline enforcement through civil litigation is associated with how specifically it articulates substantive policy in the statute, versus how much policy-making discretion it delegates to implementing agents. When legislative coalitions rely heavily on civil litigation for implementation, they have incentives to focus more attention and effort on developing and articulating policy substance in the statute, and to leverage more mandatory and specific administrative rulemaking power. The institutional attributes of litigation and courts that make them more challenging to supervise and influence during postenactment implementation, and that render them a less capable policy-making apparatus, create these incentives. This theoretical account contradicts existing arguments offered by the relatively few scholars to consider the relationship between the legislative choice of enforcement through civil litigation, and how much policy substance Congress lays down in the statute.

This Article deploys original data to investigate this theory and its rivals. The data contain granular information about the policy content of significant federal regulatory legislation passed between 1947 and 2008, and about the level of attention and effort legislators and witnesses in committee hearings focused on it. Empirical analysis demonstrates that Congress focused more than twice as much attention in legislative hearings on parts of regulatory statutes relying heavily on civil litigation for implementation, and elaborated policy in those parts of statutes in about twice as much detail. When relying substantially on civil actions, Congress was also much more likely to delegate administrative rulemaking authority, thereby leveraging more administrative expertise and enlarging congressional capacity to influence substantive elaboration of the statute via agency oversight powers.

Ultimately, this Article argues that meaningful assessment of the democratic and public policy consequences of legislative reliance on civil litigation for enforcement must reckon with the fact that — in addition to dislocating some power from bureaucracy to litigants and courts — it is associated with a materially enlarged policy-making role for Congress.

Keywords: litigation, regulation, delegation

JEL Classification: K2, K23, K41

Suggested Citation

Farhang, Sean, Legislating for Litigation: Delegation, Public Policy, and Democracy (September 23, 2018). California Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3253955

Sean Farhang (Contact Author)

U.C. Berkeley Law School ( email )

694 Simon Hall
Berkeley, CA 94720
United States

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