From Status to Contract and Back Again: Consent Decrees in Institutional Reform Litigation

The Review of Litigation, Vol. 27, No. 1, Fall 2007

NYLS Legal Studies Research Paper No. 07/08-23

13 Pages Posted: 30 Apr 2008  

Ross Sandler

New York Law School

David Schoenbrod

New York Law School

Date Written: 2007

Abstract

In issuing remedial decrees in institutional reform cases against state and local governments, courts should, as we argued in our book Democracy by Decree, enforce rights and otherwise leave policy making to elected officials. We have also argued that decrees in such cases tend to control policy more than is needed to enforce rights, even when the need for prophylaxis is taken into full account.

The point we emphasize in this essay is that overly broad consent decrees work an inappropriate shift from judicial protection of the plaintiffs-in their status as right-holders-to judicial protection of plaintiffs in a new status-as beneficiaries of a contract. What starts out as a flexible remedy morphs into a rigid contract. Holders of rights to social programs are entitled to have their rights enforced, but not to achieve hegemony over the policy choices entrusted to public officials.

Our concern is the current court practice that encourages judges to view consent decrees against governmental officials as contracts rather than equitable remedies. This not-so-subtle shift in theory collides with fundamental democratic principles.

Keywords: institutional reform litigation, consent decree, structural injunction, prophylactic remedy, public law litigation

Suggested Citation

Sandler, Ross and Schoenbrod, David, From Status to Contract and Back Again: Consent Decrees in Institutional Reform Litigation (2007). The Review of Litigation, Vol. 27, No. 1, Fall 2007; NYLS Legal Studies Research Paper No. 07/08-23. Available at SSRN: https://ssrn.com/abstract=1126680

Ross Sandler (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

David Schoenbrod

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2339 (Phone)
212-431-9205 (Fax)

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