Institutional Litigation

Author:Theodore Eisenberg, Stephen C. Yeazell

Page 1374

"Institutional litigation" refers to cases in which the courts, responding to allegations that conditions in some institutions violate the Constitution or CIVIL RIGHTS statutes, become involved in supervising the institutions in question. Loosely used, the term might describe any number of lawsuits, ranging from an assertion of discriminatory employment practices in a CORPORATION to an attack by inmates on the conditions at a state prison. What such apparently diverse cases have in common is the possibility that if the plaintiffs convince the court that a violation of the law has occurred and if the institution proves recalcitrant in remedying the violation, the court may become involved in detailed supervision of the institution over long periods. Though details of such complex suits naturally vary widely, it is the combination of continuous judicial scrutiny and detailed substantive involvement that has characterized institutional litigation.

Laws such as those forbidding discrimination in employment apply to both public and private institutions. Many constitutional provisions, however, guarantee rights only against the government and most institutions to which individuals are involuntarily committed are run by the government. Consequently most of the institutions involved have been public: prisons, mental hospitals, school systems, and the like. Moreover, though the Constitution binds both state and federal courts, the latter tribunals have played the most active role in vindicating constitutional rights. The typical institutional case therefore has involved a federal district court supervising the conduct of a state institution, a setting that has raised constitutional concerns beyond those of the particular substantive law of the case.

From a wide perspective one can trace the roots of institutional litigation to earlier classes of cases: nineteenth-century EQUITY receiverships, bankruptcy reorganizations, antitrust decrees requiring the restructuring of a large industry, even to the efforts of fifteenth-century English chancellors to enforce the duties of trustees to establish and supervise the religious and charitable institutions endowed in a will. Modern institutional cases also have more recent origins in the efforts of the federal judiciary to desegregate schools in the 1950s and 1960s. Resistance to simple desegregation decrees forced federal courts to become involved in many details of local school...

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