National Rulemaking Through Trial Courts: The Big Case and Institutional Reform

Abstract:     
Institutional reform lawsuits - big cases involving the structural reform of local government entities such as prisons and housing authorities - have traditionally been analyzed in two ways: either as unique exercises of judicial power or as party-driven examples of small-scale government by negotiation. To these traditional descriptive approaches, this article adds a third. If examined through a wider lens, institutional reform litigation has national, systemic implications, and, indeed, can create uniform federal law. This law is not imposed vertically, by appellate tribunals, but rather spreads horizontally, from trial court to trial court, like nodes in a nationwide network.

The article accordingly focuses on the structural character of institutional reform litigation from a national perspective. As it turns out, the system operates through information exchanges by repeat players who participate in multiple institutional reform cases, most commonly as counsel or expert witnesses, but also as parties (or, occasionally, judges) involved in multiple lawsuits. These participants facilitate the adoption of common standards by preferring familiar remedies, by valuing interoperability between cases, and by succumbing to the inertial momentum that these preferences, when placed in the context of the system, can create. The result is a different kind of law, one low on reasoned elaboration and high on best-practices-style copying.

The article describes the phenomenon and analyzes it through two qualitative case studies. It also reviews the prior literature on institutional reform litigation and compares the network to other examples of regulatory standardization from below. Although principally descriptive, the article concludes with a brief evaluation of the implications of ad hoc standardization through trial court litigation.

Keywords: institutional reform litigation, civil procedure, public housing, prisons, trial courts, structural injunctions

JEL Classifications: K41, K11, K23

Accepted Paper Series