Changed Circumstances: The Federal Rules of Civil Procedure and the Future of Institutional Reform Litigation after Horne v. Flores

Abstract:     
Since Brown v. Board of Education, the federal courts have played an expansive role in institutional reform litigation to restructure state and local government institutions such as public school systems, prisons, law enforcement agencies, and health care facilities accused of violating individual rights. The propriety of such federal judicial intervention, however, has long been the subject of heated scholarly and political debate. In 2009, a five-member majority of the Supreme Court in Horne v. Flores sided with the opponents of such litigation in interpreting the standard for terminating institutional reform decrees pursuant to Federal Rule of Civil Procedure 60(b)(5). Expressing deep skepticism of institutional reform litigation, Horne opened the door for lower courts to significantly enlarge government defendants’ ability to terminate ongoing judicial oversight in these cases, thereby threatening the very viability of this model of social reform.

Regardless of one’s views on the desirability of institutional reform litigation, the employment of a procedural rule to choose sides in this ideological debate is subject to critique for violating the foundational principles of the Federal Rules of Civil Procedure requiring transsubstantivity and an inclusive and democratically-accountable rule-amendment process. Rather than relying on a unilateral reinterpretation of Rule 60(b)(5) by the courts, this article endorses a more transparent, deliberative, and ultimately democratically accountable approach to defining the proper standard for terminating institutional reform decrees, one that would consider the complex, nuanced, and varied circumstances in which the costs of institutional reform litigation might outweigh its potential benefits.

Number of Pages in PDF File: 59

Keywords: civil procedure, institutional reform litigation

Accepted Paper Series