Suing Courts

Abstract

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different — on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why suing courts might work — both in the context of judicial takings and perhaps outside it, too. It shows how suing courts can simultaneously discipline judges and liberate them. And it outlines a surprising promise for all involved — a narrow hope for impacted parties and a new kind of accountability for law-changing courts.

Keywords: takings, judicial takings, Stop the Beach, judicial accountability, judicial immunity, inverse condemnation, appeal, habeas, mandamus, remedies, transition relief, error correction, judicial prospectively, moral hazard, political economy