1. October 11, 1992, presidential debate, Transcript no. 2–6 (Cable News Network, 1992), available from Lexis-Nexis Academic Universe at <http://www.lexis-nexis.com>, accessed April 9, 2002.

2. These sorry tales of litigiousness are told, respectively, in Zachary R. Dowdy, "Litigation Becoming a Pastime, Some Say," Boston Globe, March 8, 1996, 27; Edward Felsenthal, "Weekend Warriors Find a New Arena: Court," Wall Street Journal, June 23, 1995, B1; and Lisa Miller, "Clergy Shy Away from Counseling; Surge in Lawsuits Is Scaring Them Off," Houston Chronicle, February 14, 1998, Religion Section, 1.

3. Terry M. Moe, "Political Institutions: The Neglected Side of the Story," Journal of Law, Economics, and Organization 6 (1990): 213–253; "The Politics of Bureaucratic Structure," in Can the Government Govern? ed. John E. Chubb and Paul E. Peterson (Washington, D.C.: Brookings Institution, 1989), 267–329; and "The Politics of Structural Choice: Toward a Theory of Public Bureaucracy," in Organization Theory: From Chester Barnard to the Present and Beyond, ed. Oliver E. Williamson (New York: Oxford University Press, 1995).

4. The analysis here differs in crucial respects from that of Morris Fiorina in his writing on the court-versus-agency delegation decision (Fiorina, "Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?" Public Choice 39 [1982]: 33–66; and "Group Concentration and the Delegation of Legislative Authority," in Regulatory Policy and the Social Sciences, ed. Roger G. Noll [Berkeley and Los Angeles: University of California Press, 1985], 175–199).

First, Fiorina assumes that courts will more predictably interpret statutes than agencies. I know of no evidence for this assumption and it does not enter into my analysis. Second, Fiorina assumes that delegation to agencies shifts blame away from legislators more than delegation to courts. Again, in the policy arenas I have

Finally, and most importantly, Fiorina is considering the decision to delegate solely from the perspective of the legislator. I consider the decision from the position of all "activists"—all those who seek public action on a social problem, in particular interest groups, policy entrepreneurs in various positions, and policy makers in the legislative and executive branches. Lumping the incentives of all these actors together, of course, greatly oversimplifies the complexity of delegation politics. For one analysis of how incentives differ between presidents and legislators, see David E. Lewis, "The Presidential Advantage in the Design of Bureaucratic Agencies" (paper presented at the American Political Science Association Annual Meeting, Boston, Mass., September 1998).

5. Terry M. Moe, "Political Institutions," 239–242.

6. Mirjan R. Damaska, The Faces of Justice and State Authority(New Haven, Conn.: Yale University Press, 1986), 16–46.

7. Herbert Jacob et al., Courts, Law, and Politics in Comparative Perspective(New Haven, Conn.: Yale University Press, 1996), 19.

8. This point was suggested to me by R. Shep Melnick, who makes a similar argument in his book Between the Lines(Washington, D.C.: Brookings Institution, 1994), 177–178.

9. For an account of the various techniques Congress has at its disposal for disciplining bureaucracies, see William T. Gormley, Jr., Taming the Bureaucracy: Muscles, Prayers and Other Strategies(Princeton, N.J.: Princeton University Press, 1989).

10. Martin v. PGA, 121 S. Ct. 1879 (2001).

11. William N. Eskridge, Jr.'s study of congressional attempts to override statutory judicial decisions found that only 7 percent of Supreme Court statutory decisions were overridden, though more than a third were at least scrutinized by a congressional committee (Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," Yale Law Journal 101:2 [1991]: 350, table VIII). This finding, combined with Eskridge's modeling of court-Congress-president interactions, demonstrated, he concludes, "the significant power of the Court to read its own raw preferences into statutes without congressional override." Moreover, Eskridge finds "an unimpressive knowledge of and response to the far more numerous lower federal court statutory decisions" (416). Congress, of course, can't overrule decisions it never learns about.

12. Douglas Arnold, The Logic of Congressional Action(New Haven, Conn.: Yale University Press, 1990), 47.

13. This point was suggested to me by Martin Shapiro.

14. Melnick, Between the Lines, 221–229.

15. Steven M. Teles tells this story and many others in his penetrating political history of Aid to Families with Dependent Children, Whose Welfare? AFDC and Elite Politics(Lawrence: University Press of Kansas, 1996).

16. My analysis concerns the decision to lodge implementation power in the courts as an adjunct to, or as a substitute for, agency implementation. The choice

17. See Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in American Politics(Chicago: University of Chicago Press, 1993), 6–9.

18. Ibid., 68.

19. Melnick notes that the traditional veterans’ affairs policy monopoly was challenged by the Vietnam Veterans of America, who sought judicial review because they believed courts would prove more sympathetic to their claims about Agent Orange than the Veterans Administration (Melnick, Between the Lines, 268).

20. Epstein and O'Halloran's Delegating Powers provides some support for the existence of the insulation incentive, though this support is mostly indirect since the authors focus on delegation to bureaucratic agencies rather than courts. The study finds that in periods of divided government, Congress is more apt to delegate to state agencies, local authorities, and courts rather than to the executive branch. (Unfortunately, the authors do not provide separate analysis of delegation to courts but instead lump them together with states and localities. See 156–157.) The authors also find that Congress generally delegates less and grants less discretion to implementing authorities during periods of divided government (David Epstein and Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers[New York: Cambridge University Press, 1999]).

21. Sven Steinmo, Taxation and Democracy, 196.

22. A 1974 survey, for example, found Americans less likely than citizens of Britain, the Netherlands, or West Germany to hold government responsible for education, health care, housing, old age security, and unemployment (Arnold Heidenheimer, Hugh Heclo, and Carolyn Teich Adams, Comparative Public Policy: The Politics of Social Choice in America, 3rd ed. [New York: St. Martin's Press, 1990], 354). See also Herbert McClosky and John Zaller, The American Ethos: Public Attitudes toward Capitalism and Democracy(New York: Twentieth Century Fund, 1984); and Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword(New York: Norton, 1996).

23. An unfunded-mandates point of order can be defeated by a majority of the membership. Moreover, the unfunded-mandates law excludes many actions by the federal government, including those enforcing constitutional rights and preventing discrimination, two main uses of litigious policies aimed at states and localities (Paul I. Posner, The Politics of Unfunded Mandates[Washington, D.C.: Georgetown University Press, 1998], 175).

24. City of Boerne v. Flores, 521 U.S. 507 (1997).

25. See, respectively, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S. 706 (1999); and Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).

26. University of Alabama v. Garrett, 121 S. Ct. 955 (2001).

27. C. Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power.

28. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization.

29. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?

30. Glendon, Rights Talk: The Impoverishment of Political Discourse. See also Glendon, Abortion and Divorce in Western Law.

31. Ibid., 22–25.

32. On the failings of the welfare rights movement, see Teles, Whose Welfare? 85–118.

33. Mary Ann Glendon, "Rights in Twentieth Century Constitutions," in Rights and the Common Good: The Communitarian Perspective, ed. Amitai Etzioni (New York: St. Martin's Press, 1995), 27–36.

34. Kelman quotes Edmund Burke's famous remark about this dark side of liberal philosophers: "In the groves of their academy… at the end of every vista you see nothing but the gallows" (Kelman, Regulating America, Regulating Sweden: A Comparative Study of Occupational Safety and Health Policy[Cambridge, Mass.: MIT Press, 1981], 198).

35. James Lynch, "Crime in International Perspective," in James Q. Wilson and Joan Petersilia, Crime(San Francisco: Institute for Contemporary Studies Press, 1995), 11–38. The Bureau of Justice Statistics reports that on June 30, 2001, there were 472 prison inmates per 100,000 U.S. residents, up from 292 at the end of 1990 (Bureau of Justice Statistics, Prison Statistics, available at <http://www.ojp.usdoj.gov/bjs/prisons.htm>, accessed April 9, 2002).

36. For a classic argument against the belief that courts even the odds between the powerful and the lowly, see Marc Galanter, "Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change," Law and Society Review 9 (1974): 95. See also Gillian K. Hadfield, "The Price of Law: How the Market for Lawyers Distorts the Justice System," Michigan Law Review 98 (2000): 953.

37. A study of Texas lawyer interest groups found a pattern very similar to the one found in the California no-fault case, with the plaintiff lawyer organization far more mobilized than either the bar association or the civil defense lawyer group. See William De Soto, "Texas Lawyers and the Mobilization of Interests" (paper presented at the American Political Science Association Annual Meeting, Washington, D.C., September 2–5, 1993).

38. The few studies that move beyond the focus on intra–bar association politics are De Soto, "Texas Lawyers and the Mobilization of Interests," which includes a survey of political activity of plaintiff and defense lawyers; Richard A. Watson and Rondal G. Downing, The Politics of the Bench and the Bar(New York: John Wiley, 1969), which describes conflicts between proplaintiff and prodefendant lawyer groups over judicial selection in Missouri; Theodore Schneyer, "Professionalism as Politics: The Making of a Modern Legal Ethics Code," in Lawyer's Ideals, Lawyer's Practices, ed. Robert L. Nelson, David M. Trubek, and Rayman L. Solomon (Ithaca, N.Y.: Cornell University Press, 1992), 95–143, which details the conflicts between the ABA and ATLA over a code of professionalism; and Philip Heymann and Lance Liebman, The Social Responsibilities of Lawyers(Ithaca, N.Y.: Foundation Press, 1988), 309–335, which discusses how both ABA and ATLA mobilized to beat a national no-fault auto insurance bill.

39. On the formation of a coalition in favor of workers’ compensation, see Fishback and Kantor, A Prelude to the Welfare State: The Origins of Workers’ Compensation, 88–93, 120–147.

40. Ed Gillespie and Bob Schellhas, eds., Contract With America(New York: Times Books, 1994), 37–64, 143–155.

41. To determine whether the main matter in dispute involved a litigious policy, I used the roll-call vote descriptions provided by the Congressional Quarterly Almanac for 1995 and 1996 (Washington, D.C.: Congressional Quarterly Press).

42. The measure employed is the first-dimension Poole-Rosenthal W-nominate scores for the 104th Congress. Poole-Rosenthal scores are widely used in congressional research, and I, like many others, owe a debt of thanks to Professors Poole and Rosenthal for developing them.

43.

I also ran separate regressions with only Democrats and only Republicans and got similar results for both "degree" and "lawyer" in these equations.

Several additional variables involving characteristics of the representative's district (median household income, percentage rural households, and presidential vote in the 1996 election) were dropped from the final equation. They did not significantly affect the variables of interest, "degree" and "lawyer." Finally, I ran the regression with the Huber-White estimator for standard errors, which doesn't require the assumption of a normally distributed dependent variable. This too had no effect on the findings I report.

44. Richard L. Hall and Frank W. Wayman, "Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees," American Political Science Review 84 (1990): 797–820.

45. See Heinz Eulau and John D. Sprague, Lawyers in Politics: A Study in Professional Convergence(Indianapolis: Bobbs-Merrill, 1964); David R. Derge, "The Lawyer as Decision-Maker in the American State Legislature," Journal of Politics 21 (1959): 408–433; Derge, "The Lawyer in the Indiana General Assembly," Midwest Journal of Political Science 6 (1962): 19–53; and Justin J. Green et

46. Barry Meier, "Cigarette Makers in a $368 Billion Accord to Curb Lawsuits and Curtail Marketing," New York Times, June 21, 1997, A1.

47. Michael K. Frisby, "Tobacco Officials Balk at Changes Proposed to Beef Up Settlement," Wall Street Journal, August 15, 1997, B6. For an account of both this and the later, successful state attorneys general–led tobacco settlement, see Martha A. Derthick, Up in Smoke: From Legislation to Litigation in Tobacco Politics(Washington, D.C.: Congressional Quarterly Press, 2002).

48. Stephen Labaton, "Asbestos Cases in for Overhaul by Lawmakers," New York Times, June 28, 1999, A1.

49. Diana B. Henriques and David Barstow, "A Nation Challenged: Victims’ Compensation: Fund for Victims’ Families Already Proves Sore Point," New York Times, October 1, 2001, A1.

50. Pace and Kakalik, Costs and Compensation Paid in Tort Litigation.

51. Galanter, "News From Nowhere"; Daniels and Martin, "The Question of Jury Competence," 309.

52. See, for example, Saks, "Do We Really Know Anything about the Behavior of the Tort Litigation System—and Why Not?" Although Saks spends more than one hundred pages reviewing a huge number of studies, his main point is that we lack good data about tort litigation, so that any reform will be the product of "guesswork" (1288).

53. For a classic study of how an individualism of "self-sufficiency and personal responsibility" in traditional rural communities led residents to "lump it" when they were injured, see David M. Engel's "The Oven Bird's Song," 551.

54. Robert A. Kagan, "The Routinization of Debt Collection: An Essay on Social Change and Conflict in the Courts," Law and Society Review 18 (1984): 323–83.

55. Lawrence M. Friedman, Total Justice(Boston: Beacon Press, 1987).

56. Kagan, "Adversarial Legalism and American Government," 394.

57. Ibid., 374. Jerry L. Mashaw makes a similar distinction between "bureaucratic rationality" and "moral judgment" in Bureaucratic Justice(New Haven, Conn.: Yale University Press, 1983), 25–34.

58. Ibid., 26–29.

59. Kagan, "Adversarial Legalism and American Government," 373.

60. Aristotle labeled as "political rule" decision making through deliberation by "persons who are similar in birth to the ruler, and are similarly free" (Aristotle, The Politics, trans. Ernest Barker [New York: Oxford University Press, 1979], 105).

61. Lumping is one of the dominant responses to injury, far more common than litigation. For example, much of the costs of accidents is borne by the injured themselves. See Hensler et al., Compensation for Accidental Injuries in the United States. A household study conducted as part of the Civil Litigation

62. Pfennigstorf and Gifford, A Comparative Study of Liability Law and Compensation Schemes in Ten Countries and the United States, 145.

63. Cross and Hsieh, "Injury, Liability, and the Decision to File a Medical Malpractice Claim," 413–436. The study found that in cases of severe neonatal injuries, families without health insurance were more likely to sue for malpractice. One reason for this, however, may have been that Florida, the state in which the study was conducted, has repealed the collateral source rule. This means that those families who had their medical costs paid by insurers could not collect these as damages in a malpractice suit.

64. See Kathryn Moss et al., "Unfunded Mandate." In recent years EEOC officials have instituted a claim prioritization system and a mediation program in order to resolve a larger number of claims more efficiently. Despite improvements in management, however, observers suggest the agency is still overwhelmed by its tasks (Reed Abelson, "Anti-Bias Agency Is Short of Will and Cash," New York Times, July 1, 2001, sec. 3, 1).

65. Robert A. Kagan and Eugene Bardach, Going by the Book: The Problem of Regulatory Unreasonableness(Philadelphia: Temple University Press, 1982); and Kagan, "Managing Regulatory Enforcement in the United States," in Handbook of Regulation and Administrative Law, ed. David Rosenbloom and Richard Schwartz (New York: M. Dekker, 1994).

66. See, for example, Shapiro, Who Guards the Guardians; Mashaw, Bureaucratic Justice; Melnick, Regulation and the Courts; and Rabkin, Judicial Compulsions; but see Coglianese, "Litigating within Relationships."

67. American Law Institute, Reporters’ Study: Enterprise Responsibility for Personal Injury(Philadelphia: ALI, 1991).

68. Carroll et al., No-Fault Approaches to Compensating People Injured in Automobile Accidents.

69. See, for example, Steven Sugarman, "Doing Away with Tort Law," 555; Paul C. Weiler, Medical Malpractice on Trial; and Jeffrey O'Connell, "A Draft Bill to Allow Choice between No-Fault and Fault-Based Auto Insurance."