Print Issue Volume 95 - No. 3

Special Incentives to Sue

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suits by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. The Article challenges the conventional wisdom by using empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when those incentives do work, they can trigger a judicial backlash against the very rights that Congress sought to promote. This dynamic has been neglected in the academic commentary to date, which has focused on litigant behavior while ignoring the role that judges play in any enforcement regime that depends on litigation. The Article shows that caseload pressures and concerns about excessive litigation have driven judges to adopt procedural rules that dampen the effects of fee shifts and damage enhancements. Furthermore, judges have offset incentives to sue by narrowly interpreting the relevant substantive provisions of federal law. At best, litigation incentives are less valuable than their supporters assume; at worst, they are counterproductive.

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