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.
William H. Simon, Kathleen G. Noonan & Jonathan C. Lipson,
Reforming Institutions: The Judicial Function in Bankruptcy and Public Law Litigation,
Indiana Law Journal, Vol. 94, p. 545, 2019; Temple University Beasley School of Law Legal Studies Research Paper No. 2019-18; Columbia Public Law Research Paper No. 14-626
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2306