What’s a Judge to Do? Remedying the Remedy in Institutional Reform Litigation
Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald Rosenberg, among others, disapprove of active judicial involvement in structural remedies on the basis of either lack of legitimacy, lack of capacity, or both. Ross Sandler and David Schoenbrod clearly align themselves with the latter camp. Unlike some commentators, however, they go beyond criticizing the role of courts in these cases and propose specific limitations on judicial authority to provide remedies for constitutional and statutory violations. Their discussion of judicial authority and their criticism of plaintiffs’ attorneys is clearly part of a larger agenda aimed at limiting what they consider to be federal overreaching in state and local political affairs. In that sense, Democracy by Decree is as much a contribution to the new federalism literature as it is to the debate about institutional reform litigation.