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The remedial process in public law litigation is a practice in search of a theory. Courts are actively engaged in attempting to remedy violations of constitutional and statutory norms in complex organizational settings. The traditional adversary conception of adjudication has proven inadequate to the task of structuring remedies and promoting compliance in these settings. In response, lawyers, judges, and litigants are employing a variety of innovative roles and processes that do not conform to the accepted adjudicative ideal. Remedial activity in public law litigation frequently entails negotiation, informal dialogue, ex parte communication, broad participation by actors who are not formally liable for the legal violations, and involvement of court-appointed officials to assist in implementation.

Courts have exhibited an uneasy acceptance of continued judicial involvement in implementing public norms necessitated by the remedial process in public law litigation. Trial courts now oversee compliance efforts in a wide range of public law cases. With prison populations soaring throughout the nation, judicial intervention in prisons and jails is likely to continue. School and housing desegregation litigation is also likely to persist. New types of public law litigation are also emerging in areas such as union governance and disabilities. The United States Supreme Court recently reaffirmed the legitimacy and importance of the federal judiciary's role in achieving compliance with constitutional norms. State courts are facing similar remedial challenges in what appears to be a growing docket of public law cases. The courts, however, lack a normative theory to structure and legitimate the role of remedial process in public law litigation.

The courts' public remedial activity has provoked a critical response from the academy. The debate over the judicial legitimacy of this activity has not, however, produced a coherent normative theory of public remedial process. Both sides of the debate proceed based on a conception of the proper judicial role that was developed to address the court's role in determining liability. This conception rests on the assumption that the adversary process is the only means of preserving the norms of judicial legitimacy. Public remedial practice's departure from the adversary model prompts both critics and supporters to question the legitimacy of the court's role in enforcing public law norms.

The absence of a legitimate model of public remedial process presents more than a purely theoretical problem. It enhances the potential for the abuse of judicial power and contributes to the perception of the impropriety of judicial intervention in public law cases. This perceived illegitimacy fuels attacks on the court's role as guardian of constitutional and other public values. A normative foundation is crucial to developing, sustaining, and, where appropriate, criticizing public remedial activity.

This article provides a normative framework to guide the practice and evaluation of the evolving public remedial practice. It identifies the distinctive characteristics and goals of public remedial process and shows how the debate regarding its legitimacy fails to account for these differences. The article draws a set of norms for public remedial decisionmaking out of the existing legitimacy debate, and adapts these norms to the particular requirements of public law remedies. It then develops a normative theory of public remedial process, building on the teachings of public consensual dispute resolution and other process theories that emphasize participation and dialogue. By testing this normative theory against existing public remedial practice, the article constructs a model of public remedial decisionmaking that accounts for the particular demands of the remedial process while complying with the requirements of a legitimate judicial role.


Law | Public Law and Legal Theory