Sean Farhang

The Southern Imposition: Congress and Labor in the New Deal and Fair Deal

In this article, we will probe two distinct historical questions. First, we explore why congressional representatives from the South, who had generally supported the Democratic Party on labor issues during the 1930s, joined with Republicans to oppose the party’s pro-labor orientation in the 1940s. We also examine why the class-based union movement that mobilized so assertively after the passage of the Wagner Act in 1935 became so cramped and pragmatic by the early 1950s. These puzzles, we believe, are closely related. Our explanation for why labor’s horizons, topography, and prospects constricted to workplace issues, to some segments of the working population, and to limited geographic areas by the end of the Truman years points to how southern Democrats shaped the main institutions produced by New Deal and Fair Deal labor legislation.

The Political Development of Job Discrimination Litigation, 1963–1976

In lobbying for the job discrimination provisions of the Civil Rights Act (CRA) of 1964, liberal civil rights advocates wanted an administrative job discrimination enforcement regime modeled on the National Labor Relations Board (NLRB), with no private lawsuits. Pivotal conservative Republicans, empowered by a divided Democratic Party and the filibuster in the Senate, defeated an administrative framework and provided instead for private lawsuits with incentives for enforcement, including attorneys fees for winning plaintiffs. They were motivated by native suspicion toward bureaucratic regulation of business in general, as well as fear that they would not be able to control an NLRB-style civil rights agency in the hands of their ideological adversaries. In the political environment of 1963–64, some meaningful enforcement provisions were necessary, and to conservative Republicans private litigation was preferable to public bureaucracy. This choice had important self-reinforcing policy feedback effects. Civil rights advocates were initially optimistic about agency implementation and skeptical about the efficacy of private litigation to enforce Title VII, even with attorneys fees for winning plaintiffs. In the late 1960s and early 1970s, however, civil rights advocates observed an agency lacking the material resources and political will and commitment to carry out its mission. At the same time, they observed levels of private enforcement that far exceeded their expectations, as well as courts inclined toward broadly proplaintiff interpretations of Title VII. The CRA of 1964s attorneys fees provisions also had the effect of contributing funds to civil rights groups that prosecuted lawsuits and of conjuring into being a private, for-profit bar to litigate civil rights claims in general, and job discrimination claims in particular. These developments drove a transformation in the enforcement preferences of civil rights groups toward private litigation, weakening their historic support for administrative implementation. Working together with the burgeoning for-profit civil rights bar, they mobilized to expand the fee-shifting provisions of the CRA of 1964 across the entire field of civil rights, which they accomplished by successfully lobbying for enactment of the Civil Rights Attorneys Fees Awards Act of 1976. Thus was created the modern civil rights enforcement framework.

The Politics of Opinion Assignment and Authorship on the US Court of Appeals: Evidence from Sexual Harassment Cases

We evaluate opinion assignment and opinion authorship on the U.S. Courts of Appeals. Based on the Courts of Appeals’ distinct institutional setting, we derive theoretical explanations and predictions for opinion assignment on three-judge panels. Using an original dataset of sexual harassment cases, we test our predictions and find that women and more liberal judges are substantially more likely to write opinions in sexual harassment cases, making it likely that these judges have a disproportionate influence on the development of doctrine. We further find that this pattern appears to result not from purely policy-driven behavior by women and liberals assigners, but from an institutional environment in which judges seek out opinions they wish to write. Judicial opinions are the vehicles of judicial policy, and thus these results have important implications for the relationship between legal rules and opinion assignment and for the study of diversity and representation on multimember courts. ∗We thank Deborah Beim, Christina Boyd, Tom Clark, Jeff Lax, Joy Milligan, Laura Moyer, and Kevin Quinn for helpful comments. We also thank Douglas Spencer, Maylin Jue, and Angela Huizi Sun for excellent research assistance.

Legislative-Executive Conflict and Private Statutory Litigation in the US: Evidence from Labor, Civil Rights, and Environmental Law

Examining qualitative historical evidence from cases of federal regulation in the areas of labor, civil rights, and environmental policy, this paper provides support for the hypothesis that divergence between legislative and executive preferences – a core and distinctive feature of the American constitutional order – creates an incentive for Congress to rely upon private lawsuits, as an alternative to administrative power, to achieve its regulatory goals. It also shows that this mechanism encouraging statutory mobilization of private litigants had been operative long before its powerful growth started in the late 1960s; that it operates in similar fashion with Republican legislators facing Democratic presidents, and Democratic legislators facing Republican presidents; and that it remained a source of controversy, and an active influence on congressional decision-making, throughout the half century covering the 1940s through the 1980s.