Abstract
Lawsuits pursue institutional reform when plaintiffs ask courts to issue broad, systemic remedies to improve the performance of malfunctioning government programs. Once thought in decline, this litigation persists. Plaintiffs continue to seek judicial protection from dysfunctional prisons, immigration enforcement regimes, foster care systems, and other institutions. But an important aspect of the substantive law that institutional reform litigation involves has gone overlooked. This substantive law often vests rights in groups. An institutional reform lawsuit does not always—or even often—bundle large numbers of individual rights violations. Rather, a group of incarcerated people or children in foster care sues to vindicate a group right to a competently-administered institution.
During institutional reform’s formative era in the 1970s, important commentators hinted that groups could bear rights. This suggestion sparked controversy and subsequently disappeared from American public law scholarship. Over the intervening decades, developments in procedural and remedial doctrines important to institutional reform litigation have required litigants and courts to specify the contours of the substantive law with increasing precision. These forces have prompted group rights to coalesce, unobserved and largely without controversy, in various public law domains. An account of this development provides a substantive foundation for a new, up-to-date jurisprudence of institutional reform.
This Article makes three contributions. First, I connect rights design to institu-tional reform’s procedural and remedial features to demonstrate the existence of group rights. The procedural, remedial, and substantive pieces of institutional reform’s puzzle fit together best if plaintiffs vindicate group rights. Second, I describe what group rights are and how they differ from what American public law scholarship once supposed. Group rights do not require the existence of “natural” groups in American public life. They can evolve for instrumental reasons. When courts have recognized group rights, they have done so because rights designed in these terms best enable litigation to realize the values and policies of the substantive law. Third, I show how an accurate understanding of rights design can help courts avoid errors that have unjustly thwarted institutional reform efforts.
Recommended Citation
David Marcus,
Groups and Rights in Institutional Reform Litigation,
97
Notre Dame L. Rev.
619
(2022).
Available at:
https://scholarship.law.nd.edu/ndlr/vol97/iss2/3