The Continued Vitality of Prophylactic Relief

Abstract

The identification of a separate classification of prophylactic injunctions and the continued judicial use of the remedy in institutional reform cases has developed a line between legitimate and illegitimate relief. The doctrine and theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. For the dominant discourse rejects prophylactic relief as illegitimate. Critics have disclaimed prophylactic and other public law relief as judicial policymaking through which judges impose obligations beyond the contours of the legal right. Despite this harsh criticism, prophylaxis has continued to thrive as an effective and necessary part of the practical remediation of complex cases. The continued use of prophylactic remedies demands an alternative theory of justification, for the image of an activist, judicial policymaker does not adequately explain the actual remedial practice. This essay argues against rejecting all broad injunctive relief, and instead, suggests that the legal construct of the prophylactic injunction can be used to provide an alternative language through which jurists and lawyers can navigate the real issues of crafting appropriate injunctions.

This paper was presented at the 2007 AALS Meeting as part of the Remedies Workshop on injunctions.

Keywords: injunctions, judicial decisionmaking, remedies, constitutional rights, institutional reform

JEL Classification: K1, K10