A State's Power to Enter into a Consent Decree That Violates State Law Provisions: What "Findings" of a Federal Violation Are Sufficient to Justify a Consent Decree That Trumps State Law?


David W. Swift


In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may not be based on consent alone, but rather must be based on a violation of federal law. However, if a violation of federal law means a formal federal court determination on the merits, then in essence the state attorney general has no power to settle. Instead, this article proposes a preliminary injuction standard for determining whether there has been a sufficient finding of a "violation" of federal law to justify upholding a consent decree that trumps state law.


Civil Law | Civil Rights and Discrimination | Conflict of Laws | Constitutional Law | Contracts | Courts | Education Law | Government Contracts | Jurisdiction | Law | Law and Politics | Law and Society | Legal Remedies | Social Welfare Law

Date of this Version

August 2004