Beyond the Hero Judge: Institutional Reform Litigation as Litigation

Abstract

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance. A new kind of case (termed, variously, “public law litigation,” “structural reform litigation,” or “institutional reform litigation”) developed as civil rights plaintiffs and their lawyers began to seek and obtain litigated reform and continuing injunctive relief not only against schools, but also against prisons, jails, mental health and mental retardation facilities, and many other types of institutions. Law professors, law students, and political scientists followed a few years behind with descriptions, discussions of origins, efforts at legitimation, critiques, and case studies. Professors Abram Chayes and Owen Fiss set the terms of the scholarly debate; both described and defended civil rights injunctive cases in opposition to Lon Fuller’s vision of private dispute resolution by adversarial litigation, and both took as their central concern the role of the judge. The many siblings of Chayes’s and Fiss’s work, and its numerous progeny, have, with some exceptions, shared these two features. Malcolm Feeley and Edward Rubin’s history and analysis of prison reform litigation, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons, is a work in this tradition. Like other scholars since the 1970s concerned with structural reform cases, Feeley and Rubin aim to rebut Fuller by “rethink[ing] the forms and limits of adjudication” (p. 3). And like other scholars since the 1970s, Feeley and Rubin pay most attention to judges, although they narrow the focus even further, to judges’ creation of legal doctrine (albeit broadly defined).

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