Rights and Retrenchment: The Counterrevolution against Federal Litigation

This groundbreaking book contributes to an emerging literature that examines responses to the rights revolution that unfolded in the United States during the 1960s and 1970s. Using original archival evidence and data, Stephen B. Burbank and Sean Farhang identify the origins of the counterrevolution against private enforcement of federal law in the first Reagan Administration. They then measure the counterrevolution's trajectory in the elected branches, court rulemaking, and the Supreme Court, evaluate its success in those different lawmaking sites, and test key elements of their argument. Finally, the authors leverage an institutional perspective to explain a striking variation in their results: although the counterrevolution largely failed in more democratic lawmaking sites, in a long series of cases little noticed by the public, an increasingly conservative and ideologically polarized Supreme Court has transformed federal law, making it less friendly, if not hostile, to the enforcement of rights through lawsuits.

Table of Contents:
1. Retrenching rights in institutional context: constraints and opportunities; 2. The legislative counterrevolution: emergence, growth, and disappointment; 3. The rulemaking counterrevolution: birth, reaction, and struggle; 4. The counterrevolution in the Supreme Court: succeeding; 5. The subterranean counterrevolution: the Supreme Court, the media, and public opinion; 6. Rights, retrenchment, and democratic governance.

About the Author :
Stephen B. Burbank is David Berger Professor at the University of Pennsylvania Law School. He is the author of numerous articles drawing on interdisciplinary perspectives and served as Chair of the Board of the American Academy of Political and Social Science. Burbank was a member of the National Commission on Judicial Discipline and Removal and a principal author of its report. Sean Farhang is Professor of Law and Associate Professor of Political Science and Public Policy at the University of California, Berkeley. He is the author of The Litigation State: Public Regulation and Private Lawsuits in the US (2010), which received the Gladys M. Kammerer Award from the American Political Science Association for the best book in the field of US national policy, as well as the C. Herman Pritchett award from the American Political Science Association for the best book on law and courts.

Review :
'Rights and Retrenchment is a masterwork. Drawing on their path-breaking empirical research, Burbank and Farhang provide a revelatory analysis … This book is truly essential reading not only for political scientists and legal scholars but for anyone concerned about the future of the American regulatory state.' Robert A. Kagan, Professor Emeritus of Political Science and Law, University of California, Berkeley 'Rights and Retrenchment is a scholarly lightning bolt, mixing rigorous empiricism and close, institution-level analysis of civil rulemaking in a field that has too often lacked either. It's an instant classic in explaining how we got to the present while also charting a new path forward for procedure scholars.' David Freeman Engstrom, Bernard D. Bergreen Faculty Scholar, Stanford Law School, California 'Burbank and Farhang trace in detail how conservatives have sought to defang private enforcement of protections afforded by federal law … This book is essential reading for everyone interested in the state of twenty-first century politics in the United States.' Herbert Kritzer, Marvin J. Sonosky Chair of Law and Public Policy, University of Minnesota Law School 'Burbank and Farhang provide an outstanding exploration of the intersection of law and politics. They examine in rich detail the many ways conservatives have tried to limit private enforcement of federal laws … They use a variety of forms of evidence … to make a convincing argument about institutional support for retrenchment.' R. Shep Melnick, Tip O'Neill Professor, Boston College, Massachusetts 'This impressive new book demonstrates convincingly how private litigation in the courts is embedded in larger political contests over the scale and scope of federal rights … a must-read for anyone who wants to understand the complex politics and institutional dynamics surrounding private enforcement of federal law.' Margaret Lemos, Robert G. Seaks LL. B. '34 Professor of Law, Duke University, North Carolina 'In this elegant study, Stephen B. Burbank and Sean Farhang demonstrate that the Supreme Court has dramatically undercut enforcement of federal rights by making it harder for plaintiffs to sue in the first place. Rich in data, thoughtful and perceptive in analysis, this book is a landmark contribution to our understanding of the Supreme Court and the meaningful enforcement of federal rights.' Charles Epp, Distinguished Professor, University of Kansas