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Abstract

Our aim in this Article is to leverage the archival research, data, and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, to illuminate the prospects for retrenchment in the current political landscape. In the book, we documented how an outpouring of rights-creating legislation from Democratic Congresses in the 1960s and 1970s, much of which contained provisions designed to stimulate private enforcement, prompted the conservative legal movement within the Republican Party to devise a response. Recognizing the political infeasibility of retrenching substantive rights, the movement’s strategy was to weaken the infrastructure for enforcing them. Although largely a failure in the elected branches and only modestly successful in the domain of court rulemaking, the project flourished in the federal courts. In both the book and this Article, we focus exclusively on law that bears on opportunities and incentives for private enforcement of federal rights. Our decision to limit the project in that way was based on considerations that are both practical and theoretical. It was fortified by evidence from our archival research that the counterrevolution started in the first Reagan administration as an ideological campaign against private litigation as a tool of federal policymaking and by our empirical data showing that the effort to retrench private enforcement of federal law preceded tort reform on both the administration’s and the legislative agenda during the Reagan years.

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