GROUPS AND RIGHTS IN INSTITUTIONAL REFORM LITIGATION.

• Author: Marcus, David

INTRODUCTION 620 I. The Group Rights Linkag 625 A. Antecedents 626 1. Doctrine 626 2. Jurisprudence 627 B. The Evolving; Primary of Rights Design 629 II. Procedural Puzzles and the Group Rights Solution 633 A. The Standing Puzzle 634 1. Bundling Claims in Cases of Undifferentiated Conduct 637 2. The Problem of Differentiated Conduct 638 3. Class Certification and Preclusion Issues 641 B. Group Rights and Doctrinal Fit 644 1. Preclusion and Standing 646 2. Class Certification 648 III. The Substance of Group Rights: The Sixth Amendment Example 649 A. The Sixth Amendment in Individual and Group Litigation 650 1. Individual Sixth Amendment Remedies 650 2. Systemic Sixth Amendment Remedies 652 B. Understanding the Sixth Amendment, Rights-Remedies Relationship 655 1. The Pragmatist Account 656 2. The Decision Rules Account 659 IV. Jurisprudential and Docrinal Beginnings 662 A. Defining Group Rights and Identifying Groups 663 1. Liability and Remedy Indivisibility 664 2. Socially and Instrumentally Determined Groups 667 B. Understanding Group Rights' Doctrinal Significance 670 1. Younger Abstention 670 2. Class Certification 673 Conclusion--Normative Beginnings 675 INTRODUCTION

Lawsuits pursue institutional reform when plaintiffs sue malfunctioning government institutions and seek broad, systemic remedies to bring these institutions' policies and practices in line with applicable substantive law. Pioneered by the legal campaign against school segregation, (1) institutional reform (IR) litigation is now a staple of the American judicial diet. In 2017, for example, a federal judge documented a "skyrocketing" suicide rate in Alabama prisons and "horrendously inadequate" mental healthcare there. (2) An extensive, complex set of remedial interventions followed. (3) A consent decree entered in 1997 governs the conditions under which the U.S. government can hold immigrant juveniles in detention facilities. (4) It empowered a districtjudge in 2017 to remedy immigration authorities' refusal to give detained children soap, toothbrushes, and blankets. (5) Settling a class action in 2020, Ohio agreed to a host of changes to its policies and practices to protect adults with intellectual and developmental disabilities from an unnecessary risk of institutionalization. (6) In 2016, a class of young children with disabilities won sweeping changes to how the District of Columbia meets its legal obligations to educate them properly, showing that the district had failed to provide special education services to a significant number of qualifying preschoolers each month. (7)

Cases like these and many more drew intense scholarly interest during institutional reform's formative era in the 1960s and 1970s. (8) These lawsuits' proliferation sparked a legal and political backlash that purportedly set IR litigation on a path toward oblivion in the 1980s and 1990s. (9) This story of decline has proven inaccurate. The current scholarly consensus recognizes what the examples mentioned above suggest, that IR litigation persists. (10) Indeed, new variants continue to emerge. Over the past decade, innovative litigation brought to reform indigent criminal defense systems has taken firm root," and lawsuits filed to address educational inequities that threaten children's literacy have met with success. (12)

Institutional reform, however, has not sparked the deep scholarly engagement it attracted fifty years ago. (13) Only a few commentators have studied this litigation closely this century, and their work mostly dates from its first decade. (14) This relative neglect has left almost entirely unaddressed a key issue that these cases often raise. IR jurisprudence has long emphasized broad, systemic remedies and how courts craft and implement them as core matters for explication, debate, and justification. (15) But unless a defendant agrees to a quick settlement upon a case's filing, these remedies will not issue if IR plaintiffs cannot demonstrate standing, if a court will not certify a class, and, obviously, if a case does not survive a motion to dismiss or for summary judgment. These liability-phase matters depend in important measure on the makeup of the substantive rights the plaintiffs allege.

Assessing the IR landscape in 1980, Theodore Eisenberg and Stephen Yeazell recommended that the literature on institutional reform place less emphasis on remedies and accept "[t]hat the merits do... matter." (l6) I follow their suggestion, long neglected, and use this Article to offer a fundamental observation about the nature of the substantive law that IR litigation often involves. Plaintiffs leverage a variety of public law domains when they sue governments. But their claims share a common characteristic. IR plaintiffs often allege violations of what are best described as group rights. Put differently, in a number of doctrinal areas, the substantive law that determines government liability for systemic maladministration often vests rights in groups, not individuals.

An identification of group rights at institutional reform's substantive law core is important for historical, doctrinal, and jurisprudential reasons. First, the evolution of a group rights jurisprudence further challenges the stubborn narrative of institutional reform's decline. The present-day existence of group rights in multiple public law domains has resulted from a long process of commonlaw elaboration and confirms this litigation's entrenchment. Second, conceptual clarity about rights design helps to resolve confusion that has dogged efforts to adjudicate IR cases. This litigation can often conflate what are really contests over whom die substantive law protects and from what with procedural fights over matters like class certification. Whether a class gets certified or an abstention motion prevails should depend on the contours of the underlying substantive law, but they often involve misguided procedural shadowboxing.

Third, the existence of group rights in a variety of public law domains challenges the longstanding assumption that rights in "U.S. constitutional and legal culture" are "essentially individualistic." (17) The term "group rights" surfaces here and there in American public law scholarship. But this literature tends to refer to rights for groups recognized by some thick, socially determined, and often controversial metric--religious ties, for instance, or a shared ethnic or racial identity. (I8) The group rights that IR plaintiffs commonly invoke come from a variety of public law domains. They protect groups whose members share nothing more than an interest in a public good, such as the lawful administration of a government program or institution. (1)" Once presumed to be "ideologically troublesome," (20) group rights actually exist without deep controversy--indeed, largely without comment.

This Article proceeds as follows. In Part I, I situate my claim that IR plaintiffs often allege group rights violations in this litigation's jurisprudential history. During institutional reform's formative era following Brown, leading voices injudicial and scholarly commentary recognized that litigation brought by groups of inmates or school children had implications for rights design. By the early 1980s, the term "group rights" had begun to surface in important IR literature. But flexibility in the procedural and remedial doctrines that governed this litigation excused a close look at the substantive law's makeup, resulting in only modest jurisprudential engagement with rights design.

Parts II and III are this Article's core and make my case for the existence of group rights. Onetime flexibility in the doctrines IR litigation often involves has given way to rigor. But the administration of these doctrines has not led to predicted results, particularly for IR litigation's procedural governance. In Part II, I show how a group rights account can solve IR litigation's procedural puzzle. If groups litigate group rights, then administration of transsubstantive procedural doctrines makes sense, suggesting the existence of these rights in an array of public law domains. Part III builds on this suggestion of group rights' existence and uses a case study to prove their existence. In numerous jurisdictions, groups have successfully litigated broad Sixth Amendment challenges to obtain significant reforms to malfunctioning indigent criminal defense systems. These remedies suggest something basic about rights design. I use leading public law accounts of the rights-remedies relationship to show how differences in individual and group Sixth Amendment remedies illuminate differences in individual and group Sixth Amendment rights.

Part IV identifies jurisprudential and doctrinal implications of my effort to excavate group rights. I offer a definition of group rights distilled from the administration of procedural, substantive, and remedial doctrines Parts II and III describe. A group right, I argue, is best known by the characteristics of judicial decisionmaking in cases where groups of plaintiffs prove government liability without showings of individualized harm to discrete victims, and where they win relief that necessarily benefits groups and cannot aid individuals severally. These twin characteristics of liability and remedy indivisibility materialize not just when litigation proceeds to advantage or protect groups recognized by some sort of socially determined metric. A group right can also coalesce for instrumental reasons--when, given the context, a group right best realizes the substantive law's policies and values. The law itself thus can constitute groups of people whose connection is no thicker than a shared interest in improved government performance.

Part IV also explains why conceptual clarity in descriptions of rights matters to the day-to-day adjudication of IR cases. I use two doctrinal hurdles these cases commonly encounter to show how procedural wrangling can obscure more...