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During the last several decades, courts have undertaken to remedy ongoing constitutional and statutory violations in a variety of public and private institutions. Once a court determines that an institutional pattern or practice violates the law, it must face the challenge of structuring a process that will lead to the elimination of the illegal conditions or practices. Whether this judicial activity is called "ordinary" or "extraordinary," the remedial process in institutional reform litigation may lead the trial court to engage in a range of roles beyond those usually required to "resolve a traditional private dispute.

Courts involved in institutional reform litigation face a serious remedial dilemma. They are constitutionally compelled to develop a remedy for conditions and practices that violate a plaintiff's rights. However, courts cannot rely entirely on the defendants to eliminate these unconstitutional conditions because in many instances the responsible parties either cannot or will not take the steps necessary to do so. At the same time, courts must depend on those with ongoing responsibility for the institution to achieve compliance with the law. Courts lack the administrative capacity to alter basic institutional practices directly and are constrained by both a limited constitutional mandate and a narrow vision of their role.

The controversy over institutional reform litigation swirls around this remedial dilemma. The debate is often framed in terms of whether courts should be involved at all in cases requiring institutional reform. Advocates of an expansive judicial role tend to emphasize the courts' duty to intervene in the face of serious constitutional violations, without critically assessing the various forms that intervention may take or their potential impact on the target institution or the judiciary. Critics emphasize the limitations of judicially managed change without addressing the failure of the responsible officials to comply with the law and the absence of any realistic alternative means to remedy ongoing constitutional and statutory violations.

This Article shifts the focus of the debate from whether courts should intervene to how they should structure the remedial process to avoid, or at least minimize, the negative consequences of the remedial dilemma described above.8 Several factors justify reframing the inquiry in this manner.


Law | Law Enforcement and Corrections


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