Reforming Institutions: The Judicial Function in Bankruptcy and Public Law Litigation

51 Pages Posted: 10 May 2019 Last revised: 13 Jun 2019

See all articles by Kathleen G. Noonan

Kathleen G. Noonan

University of Pennsylvania, Perelman School of Medicine, Children's Hospital of Philadelphia ; University of Pennsylvania - Perelman School of Medicine

Jonathan C. Lipson

Temple University - James E. Beasley School of Law

William H. Simon

Columbia University - Law School; Stanford University - Stanford Law School

Date Written: May 9, 2019

Abstract

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial intervention in both spheres responds to coordination problems that make individual stakeholder action ineffective, and it explains how courts in both spheres can require and channel major organizational change without administering the organizations themselves or inefficiently constricting the discretion of managers. The comparison takes on greater urgency in light of the Trump administration’s vow to “deconstruct the administrative state,” a promise which, if kept, will likely increase demand for PLL.

Keywords: public law litigation, public law, bankruptcy, bankruptcy law, corporate bankruptcy, courts

Suggested Citation

Noonan, Kathleen G. and Lipson, Jonathan C. and Simon, William H., Reforming Institutions: The Judicial Function in Bankruptcy and Public Law Litigation (May 9, 2019). Indiana Law Journal, Vol. 94, 2019; Columbia Public Law Research Paper No. 14-626 (2019); Temple University Legal Studies Research Paper No. 2019-18. Available at SSRN: https://ssrn.com/abstract=3385819

Kathleen G. Noonan (Contact Author)

University of Pennsylvania, Perelman School of Medicine, Children's Hospital of Philadelphia ( email )

34th Street and Civic Center Boulevard
Philadelphia, PA 19104-4399
United States

University of Pennsylvania - Perelman School of Medicine ( email )

423 Guardian Drive
Philadelphia, PA 19104
United States

Jonathan C. Lipson

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

William H. Simon

Columbia University - Law School ( email )

435 West 116th Street
Jerome Greene Hall, Mailbox A-18
New York, NY 10027
United States
212-854-9215 (Phone)
212-854-7946 (Fax)

Stanford University - Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
(650) 723-4605 (Phone)

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