Strategy and Accountability: Structural Reform Litigation and Public Management

• Author: Anthony Michael Bertelli
• DOI: http://doi.org/10.1111/j.1540-6210.2004.00344.x
• Published date: 01 February 2004
• Date: 01 February 2004

28 Public Administration Review •January/February 2004, Vol. 64, No. 1

Anthony Michael Bertelli

Texas A&M University

Strategy and Accountability: Structural Reform

Litigation and Public Management

Structural reform litigation involves legal action against public bureaucracies alleging that an

official has violated the legal rights of an agency’s client. A pattern of rights infringements raises

the specter of systemic dysfunction. If the court finds for the plaintiffs, or if the defendant agency

agrees to settle, the remedy reconstitutes agency operations. What are the incentives faced by

public managers whose agencies are involved in structural reform litigation? How might public

managers retain public accountability while strategically using the institutional arrangements present

in such cases? This article examines these questions through a spatial bargaining model and

discusses its analytical implications in the context of a comprehensive suit against the child welfare

agency in Kansas City, Missouri.

The term “structural reform litigation” describes law-

suits against public bureaucracies which proceed in a spe-

cialized manner. The impetus for such suits occurs at the

street level: The legal rights of an agency’s client have been

violated by an official—for instance, an inmate is subjected

to serious physical maltreatment by a prison guard, or a

child is placed in a foster home that ultimately proves

deadly. A preliminary examination—conducted by the

press, an advocacy group, or the government itself—sug-

gests the incident is not isolated, the fault of a maverick

official. Rather, a pattern of rights infringements raises the

specter of systemic dysfunction. The claims of aggrieved

clients are combined into a class (the action then called a

“class action”) that is brought against the agency. These

claims typically deal with a single dimension of agency

operations, such as prison-cell size, or they are compre-

hensive suits concerning the operations of one dimension

of governance more generally, such as prison conditions

(not the entire criminal justice apparatus).

If the court finds for the plaintiffs, or if the defendant

agency agrees to settle, some structural reform remedy is

initiated. In many, if not most, structural reform cases, the

remedy is embodied in a consent decree. The consent de-

cree represents a contract negotiated by the plaintiffs and

the institutional defendant for the specific performance of

reform measures. Courts monitor compliance and sanc-

tion nonperformance according to the provisions of the

decree. To this end, they often employ the services of a

court-appointed monitor or “special master” for day-to-

day oversight, and they consult monitoring reports. Moni-

toring or receivership may transcend the federal system,

with federal courts overseeing the affairs of state and local

agencies. Indeed, such cases are common, with suits

brought in federal district court alleging violations of the

U.S. Constitution. State structural reform actions, however,

are maintained and offer similar incentives to those de-

scribed here.

Through structural reform litigation, nearly half of all U.S.

state-level child welfare agencies (including the District of

Columbia) had been brought under remedial decrees by

March 1996 (Mezey 2000). The prison systems of a vast

majority of American states have been placed under the su-

pervision of the federal courts (Feeley and Rubin 1998;

Chilton 1991; Crouch and Marquart 1989; Welsh 1995;

Yackle 1989). Welfare programs have sparked a number of

concerns that plaintiffs attribute to the procedures of wel-

fare administration agencies (Bertelli 1999). Many public

housing authorities have been defendants in such litigation.

Human services for vulnerable populations are commonly

the subject of suit: “The fact that these client groups cannot

take responsibility for their own lives no doubt increases the

willingness of the courts to intervene in the operation of

Anthony Michael Bertelli is an assistant professor at the George Bush School

of Government and Public Service at Texas A&M University. His research

applies positive political theory to problems of public administration in de-

mocracies. E-mail: bertelli@tamu.edu.