University of Virginia Legal Working Paper Series
University of Virginia Public Law and Legal Theory Working Paper Series
Structural Reform Revisited
Abstract
In 1978, amid a flurry of enthusiasm for structural reform injunctions, Paul Mishkin sounded a cautionary note. In Federal Courts as State Reformers, Mishkin surveyed the dangers and difficulties of what he called “institutional decrees.” Prominent among them were the tendency of institutional remedies to outrun the rights that gave them birth; the federalism problems inherent in the management of state and local institutions by the federal courts; and the risks involved in bypassing majoritarian political processes, especially in large questions of resource allocation. Mishkin ended with a call for restraint and a reminder that “the way to achieve desirable political goals—and the only way to do so lastingly—is through the democratic political processes which must remain the core of our polity.”
In this essay, we return to the subject of structural reform nearly thirty years after Mishkin addressed it. Our first aim is to take account of the passage of time. In 1978, Mishkin wrote against an accelerating judicial enthusiasm for structural reform injunctions. Today, both courts and congress lean the other way. We think there is more to be said for structural reform than the current legal climate recognizes and to that extent we hope to update Mishkin’s views. Our second aim is to put questions of institutional decrees more squarely in the context of alternative remedies. Ultimately, nothing persuasive or definitive can be said about structural reform injunctions without explicit attention to the strengths and weaknesses of other means of enforcing constitutional rights. We hope to shift the consideration of these issues toward that perspective.
Three considerations lead us to believe that, except where precluded by legislation, structural reform injunctions still have a valuable role to play in enforcing constitutional rights. The first is the long history of judicial innovation and flexibility in devising appropriate remedies for constitutional violations. Radical assumptions of judicial incapacity are negated by that history. In our view, the crucial question is not judicial power but rather the conditions under which that power can be usefully and effectively exercised. Second, in that connection we are encouraged by the maturation of structural reform remedies in the years since Mishkin wrote. They have evolved from bare-knuckled “command and control” decrees to orders that emphasize data-collection, measurement, process, and participation. If sensitively handled, such decrees can be “accountability reinforcing.” They enable courts to play a constructive role in identifying problems, proposing solutions, and eliciting the consent and acquiescence of the political branches. Finally, and most fundamentally, we think structural reform decrees are justified by the absence of effective alternatives. That ought to be a precondition for any form of structural relief. Once it is shown that, viewed systemically and pragmatically, institutional reform is necessary for the vindication of constitutional rights, courts should take the lead.
Subject Area
Public Law and Legal Theory
Recommended Citation
John C. Jeffries Jr. and George A. Rutherglen,
"Structural Reform Revisited"
(February 2007).
University of Virginia Legal Working Paper Series.
University of Virginia Public Law and Legal Theory Working Paper Series.
Working Paper 63.
http://law.bepress.com/uvalwps/uva_publiclaw/art63
No readers' reactions have been posted for this article. To submit one, copy the URL for this article (http://law.bepress.com/uvalwps/uva_publiclaw/art63) and click here.