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Professor Owen Fiss's seminal work, The Civil Rights Injunction, inspired a generation of scholars and practitioners to flesh out the significance of his insights. With remarkable prescience, he captured a moment in intellectual and legal history and created a vocabulary that continues to shape the debate over the court's role in public law litigation. The Allure of Individualism continues the Fiss tradition of capturing a singular, emblematic issue and sketching with broad strokes the contours of emerging debate. His springboard is Martin v. Wilks, a case that aptly frames the current dilemmas and choices posed by structural injunction litigation. Martin v. Wilks addresses a central issue raised by structural injunctions: To what extent must courts afford those whose interests may be adversely affected by a decree the opportunity to participate in its formulation and implementation?

Martin v. Wilks answers this question by granting third parties the right to full adversary participation. It holds that white firefighters may collaterally attack a consent decree adopting an affirmative action plan if they did not participate as parties in the proceedings resulting in that decree. The Civil Rights Act of 1991 reverses this holding and recasts third parties' right to "individual participation" as a right to "interest representation": It precludes collateral attacks if third parties had notice and a reasonable opportunity to object or if someone who previously challenged the judgment adequately represented their interests.

Professor Fiss does not shrink from the potentially far-reaching implications of Martin v. Wilks. He quite correctly notes that, although Martin v. Wilks involves a consent decree, its reasoning is equally applicable 'to decrees following an adjudication of liability. He also acknowledges the implicit due process foundations of the Court's decision. Indeed, much of the commentary on the issue of third-party challenges to injunctions proceeds in terms of the traditional due process rights of third parties. The strains of constitutional analysis in Martin v. Wilks implicate the rights of third parties to challenge injunctions not addressed by the Civil Rights Act of 1991, and leave open the possibility that the procedures established by the Civil Rights Act do not conform to the requisites of due process.

Professor Fiss uses the stark opposition of Martin v. Wilks and the Civil Rights Act of 1991 to highlight what he perceives as an inevitable conflict between process and outcome, between participation values and the efficacy and finality of the structural injunction. He embraces the value choice embodied by the Civil Rights Act of 1991. Indeed, The Allure of Individualism serves in part as an effort to provide a normative justification for the political' victory achieved by the legislature's reversal of Martin v. Wilks. Professor Fiss introduces and defends a scheme that I refer to as "vicarious interest representation." Third parties may participate through a surrogate whom they did not select and cannot hold accountable, but who the court deems an adequate representative. Fiss concedes that this approach deprives third parties of important aspects of participation, but is willing to sacrifice these values to preserve the effectiveness of the structural injunction.

This Article shows that the value conflict identified by Professor Fiss stems not from an inevitable clash between process and outcome, but from his unstated acceptance of a variety of premises about the nature of participation and representation at the remedial stage of public law litigation. He conflates a series of important questions and choices that must be unpacked to address adequately the issue of third-party participation in structural injunctions.


Law | Public Law and Legal Theory