Public Regulation through Private Litigation: The Regulatory Power of Private Lawsuits and the American Bureaucracy
Embedded within the notably constrained American state, how can regulatory agencies ensure that enforcement goals are met? Some analyses suggest that this is not so easily done; rather, constraints on agencies' formal administrative powers are said to threaten their capacity for effective regulation. But recent scholarship contends that such accounts underestimate the pivotal and oftentimes `hidden' regulatory role played by less formal mechanisms of enforcement, such as private litigation. Building on this revisionist strain, this dissertation project closely examines the ways in which constrained agencies look outside themselves - and their formally granted administrative authority - for enforcement power by developing incentive structures that motivate private actors to engage in litigation that advances regulatory goals. Through an historical analysis of the development of the regulatory capacity of three agencies - the Equal Employment Opportunity Commission, Environmental Protection Agency, and the Office of Equal Opportunity at HUD - this project uses qualitative and quantitative approaches to explore how and when regulatory agencies choose to focus their limited resources on mobilizing private enforcement of public policy. First, using a careful examination of agency and presidential archival materials, I specify the mechanisms by which agency actors promote private litigation and uncover the institutional and political conditions under which this legal enforcement strategy is employed over time. And then, from these archival observations, I construct original quantitative measures capturing the deployment of these legal enforcement strategies, and conduct statistical analyses to confirm the success of agency efforts to encourage private litigation over time. Ultimately, by reconsidering how to integrate informal mechanisms of enforcement, like agency-motivated private litigation, into theories of bureaucratic regulation, this research contributes to our practical understandings of day-to-day agency behavior and to our conceptions and assessments of state capacity, more broadly.
Actions and defenses, Administrative agencies, Political science, History, Public administration, United States. Environmental Protection Agency, United States. Office of Fair Housing and Equal Opportunity, United States. Equal Employment Opportunity Commission
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