¹ Previous research suggests that government activity is a significant source of government litigation (Heydebrand and Seron, 1986). Measuring government activity by the volume of per capita government employment in all eighty-four U.S. judicial districts in 1960 and 1970, the data show that the task structure of district courts, their organizational form, and their judicial outputs are significantly affected by the activity of government agencies at federal, state, and local levels. The purpose of this article is to explore annual changes in government litigation for the last fifty years. In the absence of a continuous measure of government activity, I use the nine national administrations extending between Roosevelt's second term (1937) and the second term of the Reagan administration (1986) as the independent variable. While in one sense this is a crude substitute for more refined measurement, the use of even a small number of different presidential administrations as an independent indicator permits a relatively simple, yet politically sensitive comparison of periods of intense government intervention or welfare-state orientation (e.g., Roosevelt's second and third terms, or the Kennedy-Johnson years) with the period of the neo-liberal Republican ascendancy under Nixon, Ford, and Reagan.

The main proposition to be examined is that government litigation is a significant indicator of the nature and changes of government policymaking. Specifically, I argue that certain types of government litigation vary with the nature and intensity of regulatory policies, i.e., with the extent to which different administrations have promoted or challenged the welfare state as a regulatory mechanism in liberal capitalist democracy. In other words, I argue that changes in government litigation over the last fifty years reflect changes in the policymaking priorities of different national administrations during that period.

² For specific examples of different types of government intervention, see (1) the antitrust litigation by the government against the electrical industry around 1960 (Geis, 1967; Smith, 1961; Walton and Cleveland, 1964); (2) litigation generated by the civil rights and welfare legislation of the 1960s (Friendly, 1973; Graham, 1970; Handler, 1978); (3) the enforcement of federal statutes concerning corporate crime (Barnett, 1981; Schneider, 1982); and (4) in the early 1980s, the Reagan administration's tightening of the welfare screws, e.g., changing the eligibility rules for social welfare and disability payments, leading to a temporary explosion of suits against the government (Mezey, 1987).

³ As suggested by an anonymous referee, administrative appellate litigation can also be seen as a function of the political orientation of agencies and courts. Where such orientations are consistent, a party is not likely to win in one and lose in the other; when they are inconsistent, a party losing in the agency may win in court. Nevertheless, regulatory rulemaking and policymaking drives much of appellate litigation. In the last twenty years, over 80 percent of U.S. cases at the appellate level have originated as U.S. defendant cases in district courts. These cases reflect the intensity of indirect government intervention even though the statistics do not show who won or lost in the district courts.

⁴ The indirect nature of this form of intervention is also underlined by the fact that Congress has a significant role in the promulgation of regulatory policies, even though their implementation and application at the level of the regulatory agencies will—through executive appointments—tend to reflect the choices, style, and philosophy of the incumbent president and his advisers. For example, in Motor Vehicle Manufacturer's Association v. State Farm Mutual Automobile Insurance, 463 U.S. 29 (1983), a Supreme Court decision finding that the National Highway and Transportation Safety Agency's views of detachable automatic seat belts were arbitrary and capricious, Justice Rehnquist, in a dissenting opinion, stated:

A similar example of changed agency views under President Reagan is illustrated by a series of recent decisions by the Federal Energy Regulatory Commission which were also overturned by higher federal courts (Green, 1987).

⁵ Still another interpretation of government intervention stresses the complexity, even indeterminacy, of the hypothesized nexus between policymaking and litigation. In periods of fiscal crisis, a given national administration may not only choose to withdraw from intervention and regulation, initiate deregulation, or restructure regulation by centralizing the relevant decisionmaking process in or close to the White House (Seidman and Gilmour, 1986: 128). It may also actively support or stimulate selective aspects of the economy through tax credits, loan guarantees or bailouts, increased defense budgets and military expenditures, and, generally, neocorporatist policies of subsidy of the private sector by public expenditures, subcontracting, and public-private partnerships. The drive for privatization of government services through grants and service contracts has significantly changed the allocation of government resources. Under Reagan, “the stepped-up defense program has meant an increase both in the number of companies competing for government contracts and in the percentage of their income derived from government sales” (ibid., p. 133). Moreover, a “proliferation of mandates and requirements [has] been attached to federal grants running the gamut from nondiscrimination, environmental protection, and labor standards to cost principles and audit. Comparable provisions may be included in contracts with private companies supplying goods and services to the government” (ibid.). These forms of “indirect administration,” then, may generate new levels and types of competition as well as new economic complexities and uncertainties. One of the consequences of such developments, in turn, may be the use of courts to “clarify” the meaning and extent of federal rules, mandates, and requirements (in spite of a general policy shift toward deregulation) and an increase in U.S. defendant cases as a kind of secondary effect of indirect administration and intervention. It may therefore be necessary to move outside the current analytic framework and inquire into the types, levels, and dynamics of government activity as a process, a task that cannot be pursued in the present article (but see generally Seidman and Gilmour (1986) for an analysis of the shift “from the positive to the regulatory state” under Reagan).

⁶ I am following here Abram Chayes's (1976) suggestions concerning the significance of public law litigation, the inclusion of federal question litigation in this category, and the contrast between public law litigation and more traditional forms of litigation and adjudication.

⁷ This generalization seems to be supported by an analysis of the litigation profile of cases involving “enjoining and review of federal agencies” in U.S. district courts, i.e., suits against the government generated by the regulatory and rulemaking activity of certain federal agencies. Plotting the movement of this numerically small category of cases in district courts from 1937 to 1960 reveals successive growth and decline patterns but a slight secular increase, with a tendency for low points to be higher than those in the previous cycle. One might, of course, expect short-term downward trends after a surge of litigation due to a kind of learning process whereby established judicial decisions signal to future litigants what they can or cannot expect from the courts, thereby temporarily discouraging or simply obviating the need for litigation (from personal communication with David Greenberg; see also Galanter, 1983b).

⁸ While the absolute number of U.S. defendant appeals has increased, the proportional composition of U.S. appeals has remained roughly the same since 1950. This relative stability of the composition of the U.S. appellate caseload might also reflect the fact that, at higher levels of the judicial system, there is a greater degree of autonomy and selectivity as to which and how many cases are accepted for review. Thus, there may be a certain degree of continuity in the appellate caseload from year to year, reflecting the operation of autonomous professional and organizational criteria internal to the higher courts perhaps as much or more than external and political-economic determinants of appellate litigation. For example, of those appellate U.S. defendant cases that are appealed, in turn, to the U.S. Supreme Court, a higher proportion (often more than 90 percent) is routinely dismissed or denied because the docket of the Supreme Court is highly screened and protected.

⁹ Other empirical research tends to support this conclusion. For example, in their study of the evolution of appellate litigation from 1895 to 1975 in three U.S. circuit courts, Baum, Goldman, and Sarat (1981–82: 308) argue that “policies of the federal government and the problems associated with them now provide the basis for most federal appellate activity. In this sense, the legislative and executive branches of the federal government are largely responsible for a historic transformation in the activities of the courts of appeal as well as the caseload problems from which these courts increasingly suffer.”

¹⁰ There is at least one anomaly in Figures 2 and 5 that requires comment. Administrative appeals as well as U.S. defendant AUS increased during President Eisenhower's last two years in office, counterintuitively anticipating the regulatory surge of the Kennedy years. Why would a Republican president tighten the regulatory screws during the last years in office, thus generating suits against the government as well as administrative appeals? The events surrounding the antitrust litigation of the government against the electrical industry in 1959 suggest an answer (I am grateful to David Greenberg for drawing my attention to both the issue and the sources; see point (1) in note 2). Due to federal grand jury investigations and indictments of the rigged bidding and price fixing involving heavy electrical equipment contractors and the Tennessee Valley Authority, the Republican administration suddenly found itself involved in a large number of civil and criminal antitrust suits. Not only was an important election year coming up, but the Democrats, through the hearings of the Senate Subcommittee on Antitrust and Monopoly, chaired by Democratic Senator Estes Kefauver, were mounting a political attack on the laisser-faire policies of the Republicans. It is conceivable (and as much as suggested by Walton and Cleveland, 1964: 116) that in order to undercut and disarm Democratic criticism of the regulatory hands-off policy under Eisenhower, the Republican administration decided to pursue a tougher policy of enforcement and regulation, accentuated by Eisenhower's well-known finger-wagging at the “military-industrial complex.” Given the extent of political manipulation that has pervaded American politics in recent years, this supposition appears to be an altogether mild and credible one (see also Edelman, 1988). But whether this reasoning can be applied as a form of negative evidence (or as an exception proving the rule) in interpreting unusual litigation patterns requires, of course, more detailed historical work.

¹¹ Deregulation can, of course, be achieved not only by an elimination of rules or executive orders but also by a cutback in personnel that may be silently imposed for fiscal or other reasons (see, e.g., Newman and Attewell, 1985; Calavita, 1983). Limited resources may, in turn, lead to qualitative changes in the nature of government litigation, for example, by the acceptance of nolo contendere pleas instead of guilty pleas by the Department of Justice. This practice was, indeed, a factor in settling the many government cases generated by the electrical antitrust litigation in the early 1960s. “Probably half of such cases are settled either by a nolo plea or a consent decree. Both sides save the time and money which a trial would involve. This arrangement is especially important to the government in view of limited resources of the antitrust division of the Justice Department” (Walton and Cleveland, 1964: 33).

Still another method of achieving de facto deregulation is to change the quality of the regulatory process itself. Paralleling the shift from formal adjudication to bargaining, negotiation, and informal dispute resolution in district and appeals courts, there is an increase in the privatization of dispute processing in administrative agencies (Harrington, 1988). This phenomenon can be ascribed to a shift in the policies governing the regulatory process and that results in lower administrative appeals rates. In other words, the traditional model of administrative law and policymaking has also been shifting toward a technocratically inspired model, i.e., one that is oriented toward informal bargaining, negotiation, economic incentives, and trade-offs, and an emphasis on problemsolving rather than rule enforcement.