Suing Courts

71 Pages Posted: 25 Jul 2012 Last revised: 22 Nov 2013

Frederic Bloom

University of Colorado Law School

Christopher Serkin

Vanderbilt Law School

Date Written: 2012

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

Suggested Citation

Bloom, Frederic and Serkin, Christopher, Suing Courts (2012). 79 U. Chi. L. Rev. 553 (2012); Brooklyn Law School, Legal Studies Paper No. 303. Available at SSRN: https://ssrn.com/abstract=2116466

Frederic Bloom (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Christopher Serkin

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States
615-343-6131 (Phone)

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