Realizing the Rights Revolution: Litigation and the American State

The implementation and enforcement of civil rights laws in the aftermath of the mid-twentieth-century rights revolution has been a prominent concern for a multidisciplinary group of scholars. This article reviews a recent literature that is devoted to better understanding the dynamics of judicial authority and enforcement power and, in particular, how courts are frequently empowered to enforce laws through complex interactions with an array of public and private actors. The article emphasizes new books by Charles Epp and Sean Farhang, which each examine different features of this enforcement process. In The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010), Farhang explores the frequency with which Congress has chosen to enforce its civil rights statutes through incentivizing private litigation. In Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (2010), Epp examines how civil rights are enforced and transformed through the relationship between administrators, activists, and lawmakers within bureaucratic organizations. Together, these books expand our understanding of the politics and processes of implementing rights in practice and, more broadly, challenge and enrich our perspective on the effectiveness of the American state in enforcing rights. The often complex series of self-conscious legislative, judicial, and administrative choices and interactions necessary in order to deliver rights protections requires that we view policy enforcement from a broader institutional and political perspective. From that perspective, we can see that effective implementation is far from automatic.