The Judge As Political Powerbroker PDF

The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions Author(s): Colin S.
Diver Source: Virginia Law Review, Vol. 65, No. 1 (Feb., 1979), pp. 43-106 Published by: Virginia Law Review Stable URL: http://www.jstor.org/stable/1072646 Accessed: 18/11/2008 12:10
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THE JUDGE AS POLITICALPOWERBROKER: SUPERINTENDING STRUCTURALCHANGE IN PUBLIC INSTITUTIONS Colin S. Diver*

I. II. ADJUDICATIONAND POLITICS AS OPPOSING MODELS OF SOCIAL ADJUSTMENT .............................. SOCIALADJUSTMENT.46 INSTITUTIONALREFORM LITIGATION: THE LIMITS OF
46
49
ADJUDICATION.....................................
A. The Institutional Reform Cases: An Overview .... B. The Nature of Custodial Institutions ............ C. Adjudication as an Instrument of Reform ........ 1. Formulating Legal Standards ............... 2. Fashioning the Remedy ....................
III. LITIGATION A BARGAINING AS GAME ...................
49 53 59 60 62
64
A. B.
The Rules ................................... . The Players ......... ..................... 1. The Plaintiffs ................... ......... 2. The Defendants ........................... a. Operating Managers .................... b. Executive Officials ..................... c. Defendants' Counsel .................... 3. N onparty Players .......................... C. The Judge as Powerbroker ..................... 1. Limited Play .............................. 2. Full Play ................................. a. Standards of Performance ............... b. Plan Submission ....................... c. Joinder of Defendants ................... d. Summary ..............................
IV.
65 67 67 70 70 72 73 75 77 77 79 79 82 86 88
88
A. B.
STRUCTURAL LIMITATIONS A POLITICAL ON JUDICIARY .....
V.
The Effectiveness of the Judge as Powerbroker ... 90 The Judge's Resources and Tools ............... 95 1. GatheringInformation ..................... 95 2. Time ..................................... 97 3. Sanctions ............ Sanctions ................... 99 99 C. A Philosophical Dilemma ...................... 103
106
C ONCLUSION ..................................... .
* Associate Professor of Law and Public Management, Boston University. B.A., Amherst College, 1965; LL.B., Harvard University, 1968.
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THE
past generation has witnessed a remarkable expansion of judicial participation in the implementation of public policy. Plaintiffs increasingly have asked courts not simply to correct isolated and discrete violations of law but also to effect systemic reform of entire institutions or programs.Courtshave become the principal forum for the pursuit of structural reform by many groups most disaffected with the delivery of governmental services. In responding to these demands, judges have found themselves in the unfamiliar position of designing and superintendingmajor changes in institutions, a function that often requires them to order massive increases in expenditures, wholesale administrative reorganization, and complete revision of operational practices. Expanding upon their traditional equitable powers to issue orders remedying violations of law not adequately compensated by money damages, courts have fashioned a new jurisprudenceof structuralreform.'The prototype for the judiciary's new supervisory role has been the school desegregation decree.2 In recent years, courts have applied the model devised in those cases to the reform of such diverse public programs as medical care,3 special education,4 corrections,5hous-
2 The school desegregationcases, beginningwith Brownv. Boardof Educ. (BrownII), 349 U.S. 294 (1955), providedthe groundrules fordecreesin reformlitigation. See Read,Judicial
' See generally D. HOROWITZ, COURTS SOCIAL THE AND POLICY (1977); Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. REV. 1281 (1976). L.
CONTEMP.PROB. 7
Evolution of the Law of School Integration Since Brown v. Board of Education, 39 LAW&
and Analysis, 64 VA.L. REV. 485, 542-46(1978)(discussingUnited States v. JeffersonCounty F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840 (1967)). ProfessorOwen M. Fiss has called the school desegregationdecree a "structural"injunction, i.e., "a device for altering or reorganizingsome institutional arrangement."O. FIss,
Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), modified per curiam on rehearing en banc, 380
see Wilkinson, The Supreme Court and Southern School Desegregation, 1955-1970: A History
(1975).For a notable exampleof the breadthand detail of one such decree,
Pugh, 98 S. Ct. 3057 (1978);Gates v. Collier,349 F. Supp. 881 (N.D. Miss. 1972),aff'd, 501 F.2d 1291 (5th Cir. 1974).
Supp. 318 (M.D. Ala. 1976), aff'd in part, remanded in part sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), rev'd and remanded in part per curiam sub nom. Alabama v.
case studies of "regulatory" and "structural"injunctions,see 0. at 325-481. 3 See, e.g., GreaterWash. D.C. Area Council v. District of FIss, supra Columbia, 406 F. Supp. 768 (D.D.C. 1975). 4 See, e.g., Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 1972);PennsylvaniaAss'n for RetardedChildrenv. Pennsylvania,334 F. Supp. 1257 (E.D. Pa. 1971). 5 See, e.g. Palmigianov. Garrahy,443 F. Supp. 956 (D.R.I. 1977);Pugh v. Locke, 406 F.
CASESANDMATERIALS CORPORArE ON BILLYOU, REORGANIZATIONS (1950). See generally 1-24 Note, Monitors: A New Equitable Remedy?, 70 YALEL.J. 103, 106-13 (1960). For extended
from conventional equitable remedies like the "regulatory"injunctions used in antitrust enforcement,see, e.g., United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 32635 (1961), and fromthe use of receiversin corporatereorganizations, e.g., E. DODD D. & see,
INJUNCTIONS (1972). See generally id. at 415-81. The modem "structural" injunction evolved 1
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ing,6 mental health services,7 disability assistance,8 and food and drug regulation.9 The interventionist approach taken by the courts in these cases has stimulated considerable discussion from participants"'and observers" alike-some of it critical,'2much of it favorable.'' Most of the commentary has focused on the doctrinal developments in substantive'4 and remedial'5law that the reported decisions in these cases have signalled. However dramatic these doctrinal developments may have been, they signify an even more profoundtransformation in the institutional role of litigation and the courts. The demands of structural reformhave magnified the explicitly political dimensions of litigation. Parties have used litigation less as a method for authoritative resolution of conflict than as a means of reallocating power. Rather than an isolated, self-contained transaction, the lawsuit becomes a component of the continuous political bargainingprocess that determines the shape and content of public policy. This transformationin the characterof litigation necessarily transformsthe judge's role as well. The judge comes to rely, for his
See, e.g., Hills v. Gautreaux, 425 U.S. 284 (1976). 7 See, e.g., Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974), aff'd in part, vacated in part, remanded in part, 550 F.2d 1122 (8th Cir. 1977); Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala.), 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). White v. Mathews, 559 F.2d 852 (2d Cir. 1977), cert. denied, 435 U.S. 908 (1978). 9 American Pub. Health Ass'n v. Veneman, 349 F. Supp. 1311 (D.D.C. 1972). 10See, e.g., Gilhool, The Uses of Courts and of Lawyers, in CHANGING PATTERNS RESIDENIN TIAL SERVICES THEMENTALLY FOR RETARDED (R. Kugel & A. Shearer eds. 1976) (counsel 155 for plaintiffs); Johnson, The Constitution and the Federal District Judge, 54 TEX. L. REV. 903 (1976) (judge); Stickney, Problems in Implementing the Right to Treatment in Alabama: The Wyatt v. Stickney Case, 25 HOSPITAL COMMUNITY & PSYCH. (1974) (defendant); Wald 453 & Schwartz, Trying a Juvenile Right to Treatment Suit: Pointers and Pitfalls for Plaintiffs, 12 AM. CRIM. REV.125 (1974) (counsel for plaintiffs); Wisdom, The Frictionmaking, ExacL. erbating Political Role of Federal Courts, 21 Sw. L.J. 411 (1967) (judge). "See, e.g., sources cited note 1 supra. 12 See, e.g., Glazer, Should Judges Administer Social Services?, 50 PUB.INTEREST (1978). 64 13 See, e.g., Denvir, Towards a Political Theory of Public Interest Litigation, 54 N.C.L. REV. 1133 (1976). 14See, e.g., Birnbaum, The Right to Treatment, 46 A.B.A.J. 499 (1960); Calhoun, The CONST. Supreme Court and the Constitutional Rights of Prisoners: A Reappraisal, 4 HASTINGS L.Q. 217 (1977); Hirschkop & Millemann, The Unconstitutionality of Prison Life, 55 VA. L. REV.795 (1969); Robbins & Buser, Punitive Conditions of Prison Confinement: An Analysis of Pugh v. Locke and Federal Court Supervision of State Penal Administration Under the Eighth Amendment, 29 STAN.L. REV.893 (1977); Developments in the Law-Civil Commitment of the Mentally ll, 87 HARV. REV. 1190, 1316-44 (1974). L. '5 E.g., Frug, The Judicial Power of the Purse, 126 U. PA. L. REV. 715 (1978); Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 STAN.L. REV. 661 (1978); Special Project-The Remedial Process in Institutional Reform Litigation, 78 COLUM. L. REV.784 (1978) [hereinafter cited as Special Project].
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influence, far more on exchange than on coercion and, for his mode of operation, far more on bargainingthan on adjudication. He uses his central position in the lawsuit to wield influence far beyond the immediate boundaries of the case before him, assessing and weighing the impact of outcomes within the courtroomon the distribution of influence outside it. The judge assumes the role, in essence, of political powerbroker. This article explores that role-the reasons for its emergence, the conditions for its efficacy, and the consequences of its use. The discussion begins by juxtaposing adjudicatoryand political models of social adjustment. It then uses this frameworkto examine the nature of institutional reformlitigation. An inquiry into the character of "custodial" institutions, such as prisons and asylums, provides the focus for assessing the difficulties that institutional reform presents and the strain that it places on the adjudicatory model. Attention nexts shifts to reform litigation as a bargaining process and the implications of that model for the judge's role. The discussion ends with an examination of the structural limitations on the extent to which judges can utilize the role of political powerbroker. The article concludes that the very sources of the judge's political power ultimately limit his capacity to utilize that power. Without a change in popular attitudes toward the judge's function, the very process of assuming the role of powerbrokermay strip it of its efficacy.
I. ADJUDICATION AND POLITICS AS OPPOSING SOCIAL ADJUSTMENT MODELS OF
Demands for wholesale reformof social institutions often betoken profounddisaffection and deep-seated differencesof opinion among widely diverse individuals or groups. Institutional reformtherefore poses a singular challenge to a society's ability to fashion mechanisms for the peaceful resolutionof conflict among its members. The preservationof stability depends on the skill with which it performs that task. A society has at its disposal a wide array of possible techniques for resolving conflicts. Most of them may be understood, however, as particular combinations of two polar alternatives: use of authority and reliance on exchange. The two paradigms predicated on these techniques may be called "adjudication" and "bargaining." As a model of social adjustment, adjudication is a process for resolving particular conflicts between individuals through principled elaborationof authoritative norms, typically embodied in rules
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and precedents.i6 It is not the fact of injury but the violation of a legal duty that confers the right to a remedy.'7Courts as adjudicators act neither to promote any set of interests within society nor to find strategic solutions to social problems but rather to vindicate individual legal rights.'8A court's finding of liability provides only the predicate for further action, not a blueprint for action itself:'9 the shape of the legal wrong, as well as the injury suffered by the person aggrieved, defines what relief is appropriate. Though the court may have discretion in selecting and designing a remedy,2" once it does the defendant becomes subject to a legal obligation to comply, a duty backed ultimately by the coercivepowerof the state. The process of governmentalpolicymakingsuggests a contrasting model for resolving social conflicts. Increasingly,students of government have come to view policymaking-not only by legislators but by executive and administrative officials as well-as essentially a bargaining process.21Rather than using authoritative norms as guides, the participants rely on the principle of exchange. Policy decisions at all levels of governmentresult not so much from formal structures or coercive authority as from mutual accommodation of conflicting interests, none of which a priori enjoys a higher status than the others. Outcomes depend on the intensity of the participants' interests, the skill with which they play, and the power at their disposal.22
16"Adjudication is conventionally perceived as a norm-bound process centered on the establishment of facts and the determination and application of principles, rules and precedents." Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking, 89 HARV.L. REV. 637, 638 (1976). See generally Fuller, The Forms and Limits L. of Adjudication, 92 HARV. REV. 353 (1978). 17F. JAMES G. HAZARD, & CIVIL PROCEDURE 2.9, at 75-77 (2d ed. 1977); W. PROSSER, ? HANDBOOK THE OF LAW TORTS 42, at 244 (4th ed. 1971). See generally O.W. HOLMES, OF ? THE LAW COMMON 82-83 (1881) (though forms of action have been abolished, a plaintiff still must allege a right that the writs addressed). THE MORALITY LAW168-77 (rev. ed. 1969). OF '8 See L. FULLER, 19 Judgments at law, as distinguished from equitable decrees, only define legal rights. Execution comes through some collateral process. D. DOBBS,HANDBOOK THELAWOF ON REMEDIES 10-12 (1973). Although complaints in most reform cases call upon the equitable powers of the courts and, thus, ask for personal orders, see id. at 25-27, most courts still consider equity an extraordinary remedy, id. at 57. 20 Judicial discretion in choice and design of remedies is primarily characteristic of equitable relief, historically available only when legal remedies are inadequate, K. PARKER, MODERN JUDICIAL REMEDIES: CASES AND MATERIALS(1975), or when the application of otherwise just 8 legal rules would produce an excessively harsh result, 0. FIss, supra note 2, at 76. 21 AND See, e.g., R. DAHL, WHO GOVERNS?DEMOCRACY POWERIN AN AMERICAN (1961); CITY R. NEUSTADT, PRESIDENTIAL POWER: POLITICS LEADERSHIP THE OF & (1960); W. SAYRE H. KAUFNEW YORKCITY: POLITICS THEMETROPOLIS IN MAN,GOVERNING (1960); M. WEINBERG,MANAGING THE STATE (1977).
22
G. ALLISON, ESSENCE DECISION: OF EXPLAINING CUBAN THE MISSILE CRISIS 162-80 (1971).
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As pure forms, the adjudicative and the political models of bargaining differ sharply. In the first place, the touchstone of the political process is power, not principle. The ability to influence others' not behavior,23 the ability to demonstrate a legal right, determines political outcomes. Second, the political process intrinsically is more dynamic than adjudication. It involves continuous, sequential, often cyclical bargaining among persons in interdependent positions.24 Adjustments and readjustments can be and are made continuously. Adjudication, by contrast, focuses on a limited span of time and seeks to apply fixed principles dispositively to immutable and idiosyncraticfacts. Third, the political processis morefluid and flexible. It examines a shifting rangeof problemsidentified cooperatively by the participants, rather than a single, self-contained disThe outpute. Political bargaining is like a series of chess games.25 come of each game structures the agenda of a subsequent game.26 Participants play for position and influence often as much as they do for primary governmental outcomes. Adjudication, by contrast, allows one participant, the plaintiff, to structure the agenda. Once the plaintiff has defined his claim, the defendant has little, if any, room to change the focus of the dispute. Finally, political bargaining is positional. It proceeds throughwell-defined lateral and hierarchical channels within organizations27and between organizations.28 The participants derive their resourcesand their stakes in the outcome from the positions they occupy within that structure. Parties in adjudication, on the other hand, technically are equals beforethe court. Their status in society may shape the content of their legal relationship but not their access to a process for defining that relationship.
Sci. Dahl, The Conceptof Power,2 BEHAVIORAL 201 (1957);Simon, Notes on the Observation and Measurementof Political Power, 15 J. POL. (1953). 500
23 21
The Science of "MuddlingThrough,"19 PUB.AD.REV. (1959). 79 25 G. ALLISON, supranote 22, at 145.The image is misleadingin one respect,however.Chess is a game of pure conflict, while political bargainingusually combines elements of conflict
and collaboration. T. SCHELLING, THESTRATEGY CONFLICT OF 83-89 (1960). Formal game theory
See generally D. BRAYBROOKE C. LINDBLOM,A STRATEGY DECISION(1963); Lindblom, & OF
has contributedvaluable insights into the operationof political bargainingprocesses.Two

26
classic statements are J. VON NEUMANN O. MORGENSTERN, & THEORY GAMES ECONOMIC OF AND BEHAVIOR GAMES AND DECISIONS (science ed. 1964), and R. LUCE& H. RAIFFA, (1957).
zational Relationships,5 AD.Sci. Q. 583 (1961).
MODELS MAN OF 66-68 (1957). n Fora descriptionof hierarchical bargaining,see H. SIMON, 2RLevine & White, Exchange as a ConceptualFramework for the Study of Interorgani-
See notes 200-01infra and accompanyingtext.
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REFORM LITIGATION: OF ADJUDICATION THE LIMITS
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The adjudicative and the bargaining models sketched in the preceding section are, of course, ideal types rather than faithful descriptions of existing institutions. All mechanisms for the resolution of human conflict display at least some characteristicsof each. Nevertheless, the models remain useful for locating the central character of most decisionmaking processes. In the traditional view, for example, litigation of a dispute in a court of law is essentially an adjudicative, not a bargaining, process. Although many features that characterize the historical "private law" model have yielded under pressurefrom the "public law" explosion,2" litigation, even in its most ambitious contemporaryuses, remains anchoredto the auIts thoritarianrhetoricof adjudication.30 political character, though is relegated to a distinctly secondarystatus. widely acknowledged,31 That characterizationremains as one of the hardiest tenets of faith about the operation of our legal system. Nevertheless, an increasing number of modern lawsuits has demonstrated how malleable-and adaptive-institutional litigation may be. A. The Institutional Reform Cases: An Overview The dominance of the adjudicative norm has encountered its greatest challenge in a series of recent lawsuits involving institutions for the confinement and rehabilitation of persons considered to be dangerous, deviant, or helpless. During the past ten years, private parties have used the courts as a forum for a broadside attack on conditions in public jails,32prisons,33reform schools,34 mental hospitals,35 and institutions for the mentally retard" Professor Abram Chayes has described this development thoroughly. See Chayes, supra note 1, at 1285-304. 30 See generally D. HOROWITZ, supra note 1, at 22-67. 31 See notes 111-15 infra and accompanying text. 32 See, e.g., Smith v. Sullivan, 553 F.2d 373 (5th Cir. 1977); Moore v. Janing, 427 F. Supp. 567 (D. Neb. 1976); Rhem v. Malcolm, 371 F. Supp. 594 (S.D.N.Y.), aff'd in part, remanded in part, 507 F.2d 333 (2d Cir. 1974) (also remanding 377 F. Supp. 995 (1974)); Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff'd, 494 F.2d 1196 (1st Cir. 1974). 33 See, e.g., Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977); Barnes v. Virgin Islands, 415 F. Supp. 1218 (D.V.I. 1976). 34 See, e.g, Morales v. Turman, 383 F. Supp. 53 (E.D. Tex. 1974), rev'd and remanded, 535 F.2d 864 (5th Cir. 1976), rev'd and remanded per curiam, 430 U.S. 322 (1977); Martarella v. Kelley, 359 F. Supp. 478 (S.D.N.Y. 1973); Nelson v. Heyne, 355 F. Supp. 451 (N.D. Ind. 1972), aff'd in part, remanded in part, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976 (1974); Inmates of the Boys' Training School v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972). 35 See, e.g., Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974); Wyatt v. Stickney, 344
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The unspoken agenda of this litigaed:3throughout the country.37 to transformtotally the philosophy, performance,and tion has been operation of custodial institutions in our society. These cases typically have involved tangled disputes over the prevalence of certain conditions or practices, the correct standards to be applied, the degree of progressmade by defendants before or during the lawsuit, and alternative approaches for providing the service. From values traditionally found in the Constitution, particularly in the due process and the cruel and unusual punishment the clauses,38 Supreme Court and the federal courts of appeals have extracted the broad principle that an individual has a right to medical,39 psychological,40 and, in general, humane treatment4' while confined to a custodial institution.42Pronouncing rights, however, does nothing to illuminate the remedy. As the Supreme Court did with desegregation,43 federal appellate courts have left to district the the difficult task of deciding exactly how to effectuate genjudges
F. Supp. 373 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). 36 See, e.g., Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974), aff'd in part, vacatea tn part, remanded in part, 550 F.2d 1122 (8th Cir. 1977); New York State Ass'n for Retarded Children v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973); Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). 37 Many of the cases are collected in Frug, supra note 15, at 718-19 nn.15-18. 38 U.S. CONST. amends. V, VIII, XIV, ? 1. 39 E.g., Estelle v. Gamble, 429 U.S. 97 (1976). On the constitutional basis for a "right to treatment" generally, see Birnbaum, supra note 14; Schwitzgebel, Right to Treatment for the
C.R.Mentally Disabled: The Need for Realistic Standardsand ObjectiveCriteria,8 HARV.

C.L. L. REV.513 (1973). For an argument that one must read Gamble very narrowly, however, see Calhoun, supra note 14, at 244-47; Frug, supra note 15, at 771-73. 40 Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977). 41 Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974), cert. denied, 421 U.S. 948 (1975); Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971). On the basis for prisoners' constitutional claim to decent living conditions, see Hirschkop & Millemann, supra note 14; Robbins & Buser, supra note 14. 42 Unlike the desegregation cases, in which the Supreme Court overruled lower court holdings of constitutionality and then remanded for remedial proceedings, compare Brown v. Board of Educ. (Brown I), 347 U.S. 483 (1954), with Brown v. Board of Educ. (Brown II), 349 U.S. 294 (1955), many, if not most, cases of institutional reform have seen a district judge find the constitutional violation in the first instance. See, e.g., Morales v. Turman, 383 F. Supp. 53 (E.D. Tex. 1974), rev'd and remanded on other grounds, 535 F.2d 864 (5th Cir. 1976), rev'd and remanded on other grounds per curiam, 430 U.S. 322 (1977); Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972), aff'd, 501 F.2d 1291 (5th Cir. 1974); Wyatt v. Stickney, 344
F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remandedin part on other groundssub nom.
Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), aff'd, 442 F.2d 304 (8th Cir. 1971). 43 For a discussion of the Supreme Court's failure to provide sufficient guidance to lower courts in desegregation, see Wilkinson, supra note 2, passim.
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eral rights in the context of particular institutions, their functions, and the conditions prevailing in them. Filling in the detail within the broad outlines sketched by the appellate courts requiresthe trial judge to legislate with extraordinaryprecision. Courts have responded by issuing far-reachingdecrees that have encompassed virtually every aspect of institutional life and the conditions and practices that shape it. Judges have ordereddefendants to increase staffing levels;44to close, to remodel, or to construct to to buildings;45 provide new or increased services to residents;46 to reduce or to control the institutional population;47 publish disciplinary rules and to provideformal hearingsbefore disciplining resiand to discontinue the use of particularly inhumane pracdents;48
44Gates v. Collier, 349 F. Supp. 881, 897 (N.D. Miss. 1972) (additional medical staff' required),aff'd, 501 F.2d 1291 (5th Cir. 1974);Wyatt v. Stickney, 344 F. Supp. 373, 383-84 (M.D. Ala. 1972) (staffing ratios specified for 35 classificationsof employees), aff'd in part, Courtsoften have specified minimum qualificationsfor staff. See, e.g., Martarellav. Kelley, 359 F. Supp. 478, 484 (S.D.N.Y. 1973) (caseworkers must have bachelor'sdegree;children's counselorsmust have high school diploma and two years of college). 45 E.g., Moralesv. Turman,383 F. Supp. 53, 121-26(E.D. Tex. 1974)(closureof maximum security institutionand boys'trainingschool),rev'dand remandedon othergrounds,535 F.2d v. Landrieu,351 F. Supp. 549, 550 (E.D. La. 1972) (constructionof new prison hospital); Jones v. Wittenberg, 330 F. Supp. 707, 720 (N.D. Ohio 1971) (extensive alterations and repairsto county jail), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). 46 E.g., Pugh v. Locke, 406 F. Supp. 318, 335 (M.D. Ala. 1976) (prison educational,vocagroundsper curiamsub nom. Alabamav. Pugh, 98 S. Ct. 3057 (1978);Davis v. Watkins,384 F. Supp. 1196, 1203-06 (N.D. Ohio 1974) (individualized treatment plans for mental patients); Martarellav. Kelley, 359 F. Supp. 478 (S.D.N.Y. 1972) (rehabilitativeservices for noncriminaljuvenile inmates); Jones v. Wittenberg,300 F. Supp. 707, 716-18 (N.D. Ohio 1971)(jail food and medical services),aff'd sub nom. Jones v. Metzger,456 F.2d 854 (6th Cir. 1972). 47E.g., Pugh v. Locke, 406 F. Supp. 318, 332 (M.D. Ala. 1976) (forbiddingacceptance of' any new inmates into prisonsystem until populationis reducedto design capacity), aff'd in
tional, work, and recreation programs ordered), aff'd in part, remanded in part sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), rev'd and remanded in part on other 864 (1976), rev'd and remanded on other grounds per curiam, 430 U.S. 322 (1977); Hamilton remanded in part on other grounds sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
3057 (1978); New York State Ass'n for RetardedChildrenv. Rockefeller,357 F. Supp. 752, 768-69(E.D.N.Y. 1973) (immediate hiringof additonalstaff for institution for the retarded); Holland v. Donelon, 2 PRISON REP.375 (E.D. La. 1973) (requiringthat prisonpopulation L. be limited to numberfor which the facility was designed). 48 E.g., Nelson v. Heyne, 355 F. Supp. 451, 457 (N.D. Ind. 1972)(due processhearingbefore solitary confinementin trainingschool for delinquentboys), aff'd in part, remandedin part, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976 (1974);Hamiltonv. Landrieu,351 F. Supp. 549, 552 (E.D. La. 1972) (disciplinaryhearingsand distributionof prisonrules to inmates); Gates v. Collier, 349 F. Supp. 881, 899-900(N.D. Mass. 1972) (provisionof written notice of' changes and other procedures before loss of good-time credit or solitary confinement in prison), aff'd, 501 F.2d 1291 (5th Cir. 1974).
part, remanded in part sub nom. Newman v. Alabama, 559 F.2d 283, 288 (5th Cir. 1977), rev 'd and remanded in part on other grounds per curiam sub nom. Alabama v. Pugh, 98 S. Ct.
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tices.49The decree usually has followed an extended process that began with a court order to the defendants to submit a comprehensive plan for the eradication of violations and continued through lengthy negotiations and revisions. Promulgationof the decree has not terminated the litigation but instead simply has initiated a Ordiprocess of enforcement extending into the indefinite future.5" the court has appointed an individual or a committee to narily, monitor the defendants' compliance and to recommend corrective but measures,51 often it must reenterthe dispute repeatedly to interpret or to modify the original order or to invoke its coercive powers to secure compliance.52 Despite the scope of such an undertaking, most courts have adhered strictly to the symbolic structure of adjudication, continually remindingplaintiffs that courts may requireno more than the minimum set by law53 and defendants that their remedial duties, once
9 E.g., Morales v. Turman, 364 F. Supp. 166, 176 (E.D. Tex. 1973) (physical restraints, beatings, and racial segregation in school for juveniles); Gates v. Collier, 349 F. Supp. 881, 902 (N.D. Miss. 1972) (use of armed trusties at state prison), aff'd, 501 F.2d 1291 (5th Cir. 1974); Wyatt v. Stickney, 344 F. Supp. 373, 381 (M.D. Ala. 1972) (nontherapeutic use of patient labor; hazardous treatment procedures), aff'd in part, remanded in part on other grounds sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). 50 See, e.g., New York State Ass'n for Retarded Children v. Carey (Willowbrook case), 393 F. Supp. 715, 716 (E.D.N.Y. 1975) (noting that consent decree "was formulated after prolonged hearings . . . and as the result of extensive negotiations between the parties"); Wyatt v. Stickney, 344 F. Supp. 373, 374-79 (M.D. Ala. 1972) (detailing extensive history of this case of mental institution reform and the court's view of future complexity of its enforcement efforts), aff'd in part, remanded in part on other grounds sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). 1' See, e.g., New York State Ass'n for Retarded Children v. Carey (Willowbrook case), 409 F. Supp. 606 (E.D.N.Y. 1976) ("review panel"); Davis v. Watkins, 384 F. Supp. 1196, 1208 (N.D. Ohio 1974) (ombudsman); Morales v. Turman, 383 F. Supp. 53, 120-21 (E.D. Tex. 1974) (monitor), rev'd and remanded on other grounds, 535 F.2d 864 (5th Cir. 1976), reu'd and remanded on other grounds per curiam, 430 U.S. 322 (1977); Martarella v. Kelley, 359 F. Supp. 478, 486 (S.D.N.Y. 1973) (ombudsman); Hamilton v. Landrieu, 351 F. Supp. 549, 555 (E.D. La. 1972) (special master); Wyatt v. Stickney, 344 F. Supp. 373, 376 (M.D. Ala. 1972) ("human rights committee"), aff'd in part, remanded in part on other grounds sub nom. Wyatt v. Anderholt, 503 F.2d 1305 (5th Cir. 1974). See generally Special Project, supra note 15, at 826-37; Note, Equitable Remedies: An Analysis of Judicial Utilization of Neoreceiverships to Implement Large Scale Institutional Change, 1976 Wis. L. REV. 1161. 52 E.g., Special Project, supra note 15, at 815-16. See id. at 816-21, 837-42. 53 One judge commented: [Tlhis Court, no matter how completely it may be convinced by the testimony of expert witnesses concerning the lack of wisdom and the inadequacy of certain practices at the Jail, or the superiority of alternative methods, may only require the cessation of such practices as are violative of federal constitutional precepts. Collins v. Schoonfield, 344 F. Supp. 257, 264 (D. Md. 1972).
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At declared, are absolute.54 the same time, however consistent the rhetoric has been with the symbolic structure of adjudicajudicial tion, fitting the implementation of institutional reforminto the adThe central adjudicatory paradigm presents obvious difficulties.55 judicatory tasks of defining standards of liability, formulating a remedy, and enforcinga decree are complicated by the scope of the problem addressed and the entrenched nature of its causes. Usually lacking the helpful guidance of specific statutory or regulatorystandards, courts must weave a whole fabric of criteria for institutional performancefrom the simple strands of basic constitutional guarantees. They then must translate these criteria into a set of concrete commands designed to achieve the greatest degree of compliance consistent with the structural, fiscal, and political realities of the organizational setting. Finally, courts must establish a regime of supervision capable of penetrating the dense fog of bureaucratic structure, resolving conflicts, and forcing compliance-all this within the confines of a traditional role that prizes principled decisionmaking and strict neutrality. B. The Nature of Custodial Institutions
The sweeping reformsought by plaintiffs in these cases necessarily impacts upon a wide range of organizational relationships. The prospects for success, therefore, depend critically on the amenability of these relationships to change. To assess the efficacy of any reform vehicle-including litigation-one must be able to identify the relevant relationships and the forces that shape them. Because custodial institutions are immensely complex organisms, one must employ some set of simplifying assumptions to delineate these forces. The disciplines of economics and sociology provide two useful frameworks. From an economic perspective, custodial institutions are produc5 "[T]he unavailability of neither funds, nor staff and facilities, will justify a default by defendants in the provisionof suitable treatment for the mentally ill." Wyatt v. Stickney, 344 F. Supp. 373, 377 (M.D. Ala. 1972),aff'd in part, remandedin part on othergroundssub nom. Wyatt v. Aderholt,503 F.2d 1305 (5th Cir. 1974). The Supreme Court frequentlyhas
and weaknesses in implementation); S. SCHEINGOLD, POLITICS RIGHTS: THE OF PUBLIC LAWYERS, ANDPOLITICAL CHANGE (1974) (suggesting that plaintiffs expect too much of the 95 POLICY, courts and ignore alternative means of securing reform).
duty to provideprisonersan adequate law librarydoes not depend on availability of funds). 5S See Note, ImplementationProblemsin Institutional L. ReformLitigation,91 HARV. REV. 428, 428-29 (1977). Cf. D. HOROWITZ, note 1, at 255-98 (delineatingspecific strengths supra
expressed a similar sentiment. See, e.g., Bounds v. Smith, 430 U.S. 817, 825-27 (1977) (state's
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As tive entities.56 such, they consume scarce resourcesin the process of producing valuable "outputs." Like all governmental entities, custodial institutions are nonmarket organizations. They depend, for their resources,not on their capacity to sell their services on the market but on their capacity to obtain funds through a centralized political competition for shares of a limited budget. In addition, custodial institutions usually are monopolies. Their customers consume the product in most cases either because they are coerced to do so57or because they have no practical alternative source of supThey are service organizations,the "product"of which is diffiply.58 cult to standarize because it must be tailored, at least in part, to residents' individual needs. The "technology," or production proA cess, used in an institution depends on its intended function.59 deterrence function, for example, implies a technology of punishment, whereas protectionfor society at large implies secure confinement. To the extent that an institution serves therapeutic or rehabilitative goals, the technology emphasizes treatment. In economic terms, one measures the performanceof a custodial institution by the quality and the quantity of its "products,"defined by successful deterrence, caretaking, or therapy, as compared to the quantity of resourcesconsumed in their production.60 From a sociological perspective, on the other hand, a custodial
5s For the "economic" view of governmental agencies generally, including custodial instituINSIDE BUREAUCRACY tions, see A. DOWNS, BUREAUCRACY REPRESENTAAND (1967); W. NISKANEN, TIVE GOVERNMENT (1971). See also Marschak, Economic Theories of Organization, in HANDBOOK ORGANIZATIONS(J. March ed. 1965). For a "production" model of the mental OF 423 hospital, see Perrow, Hospitals: Technology, Structure, and Goals, in HANDBOOK OF ORGANIZATIONS, supra at 910, 913-16. 57 See Garson, The Disruption of Prison Administration: An Investigation of Alternative Theories of the Relationship Among Administrators, Reformers and Involuntary Social Service Clients, 6 LAW& SOC'Y REV.531, 531 (1972) (using the term "involuntary clientelism" to make this point). 58 For this reason, courts often have extended rights accorded to persons involuntarily confined to mental institutions to "voluntarily" admitted residents as well. See, e.g., New York State Ass'n for Retarded Children v. Rockefeller, 357 F. Supp. 752, 756 (E.D.N.Y. 1973); Wyatt v. Stickney, 344 F. Supp. 387, 390 (M.D. Ala. 1972), aff'd in part, remanded in part on other grounds sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). See generally Note, Voluntarily Confined Mental Retardates: The Right to Treatment vs. the Right to Protection from Harm, 23 CATH. L. REV. 787 (1974). U. 59 Perrow, supra note 56, at 915-16. 'o For efforts to develop measures of the performance of custodial institutions, see L. BLAIR,
MONITORING THE IMPACTS PRISON AND PAROLESERVICES:AN INITIAL OF EXAMINATION (1977); R.
TREATMENT ENVIRONMENTS (1974); P. MORRIS, Moos, EVALUATING 16-29 PUT AWAY: SOCIOA LOGICAL STUDY INSTITUTIONS THE OF FOR MENTALLY RETARDED 40-42 (1969); Raynes, Bumstead, & Pratt, Unitization: Its Effects on Residential Care Practices, MENTAL RETARDATION, Aug. 1974, at 12, 12-14.
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institution is a social system-a group of people and the roles that structure their interactions.6'A custodial institution is primarily a "people-managing"organization, one that controls and shapes the Its behavior of a group of people.62 membership consists of two general classes of people: a large group of "managed" persons and a smaller group of "managing" persons. It also is a "total" instituoften controllingand confiningthe entire range of experiences tion,63 of the managed population during the length of their "membership,"typically a long, uninterrupted period of time. Because custodial institutions are large and complex, they usually have evolved an elaborate formal structure for their staffs with a high degree of differentiation that permits specialization of labor and decentralization of authority. Paralleling this formal structure is a secondary, informal structure that governsrelationships within the "managed"population and also influences relations among staff and between staff and residents. The function of the institution as defined by the political system and the availability of a technology suitable for carryingout that function shape both formal and informal organization. Given the dominance of custodial concerns, coupled with doubts about the effectiveness of rehabilitative policies, the structuresof most custodial institutions tend to employ physical intimidation, coercion, and constraint.64 Both the economic and the sociological perspectives view the institution as a system of interacting parts defined by a set of important relationships. Of primary importance is the relationship between the external environment and the institution. The environment is the major source of expectations about the behavior and Political institutions communiperformance of an organization.65
OF "6 Stinchcombe, Social Structure and Organizations, in HANDBOOK ORGANIZATIONS, supra 3 (1964). note 56, at 142. See also A. ETZIONI, MODERN ORGANIZATIONS 62 See, e.g., Lefton, Client Characteristics and Structural Outcomes: Toward the SpecificaOF AND ESSAYS THESOCIOLOGY SERVICE 30 IN tion of Linkages, in ORGANIZATIONS CLIENTS: 17, (W. Rosengren & M. Lefton eds. 1970) ("people-processing organizations"); Perrow, supra note 56, at 925 ("behavior-changing").
63 See E. GOFFMAN,ASYLUMS:ESSAYS ON THE SOCIALSITUATIONOF MENTAL PATIENTS AND OTHER INMATES4-12 (1961); D. VAIL, DEHUMANIZATION AND THE INSTITUTIONAL CAREER58-77
(1966). Such organizations exhibit a high degree of "laterality" (defined as the scope of the organizations' intervention into their clients' "life space"). Rosengren, The Careers of Clients IN AND SOCIOLOGYSERVICE, OF and Organizations, in ORGANIZATIONS CLIENTS: ESSAYS THE supra note 62, at 117. OF 64 See, e.g., Etzioni, Organizational Control Structure, in HANDBOOK ORGANIZATIONS, supra note 56, at 650, 660-61; Perrow, supra note 56, at 925-27. 65 See, e.g., A. ETZIONI, supra note 61, at 8; Cressey, Prison Organizations, in HANDBOOK OFORGANIZATIONS, note 56, at 1023, 1025-33. supra
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cate their expectations for public agencies through formal actions, such as legislative enactments or a chief executive's appointments, and, equally powerfully, through informal acts, such as patronage demands. Other institutions, such as the media and relevant special interest groups,66 also communicate expectations. The messages received from such diverse sources are often conflicting and ambiguous. The history of custodial institutions, for example, reveals a continuing tension between punitive and rehabilitative objectives, reflecting conflicting social attitudes towards dependent or socially deviant individuals.67 The level of fiscal and staff resourcesprovided to custodial institutions constitutes one of the principal ways in which society communicates its expectations. One often hears custodial institutions described as "resource-deprived"68 as the product of "public inor difference and political neglect."69 Implicit in such statements is a normative judgment about the objectives of such institutions and the extent to which they meet those objectives. As the economist would state it, society should devote additional resourcesto a particular productive activity as long as putting them to that use would result in a larger increment in social utility than.putting them to any competing use.70Whether custodial institutions deserve additional resourcesdepends heavily upon one's view of their role. Advocates of a custodial theory ordinarily support expansion of institutional capacity only to the extent necessary for secure confinement. Advocates of rehabilitation, on the other hand, favor expanded re67
66 See H. SCHULBERG BAKER, AND THEMENTAL 237-67 (1975). HOSPITAL HUMAN & F. SERVICES For the historical development and structure of custodial institutions, see C. BARTOLLAS,
S. MILLER, J. DINITZ, & JUVENILE VICTIMIZATION: INSTITUTIONAL THE 3-16 PARADOX (1976); S. THEMENTALLY THE RETARDED SOCIETY IN ILL DAVIS, (1959); A. DEUTSCH, MENTALLY INAMERICA THE ULTIMATE JAILS: 8-12 (1975); J. SMITH W. FRIED, & GHETTO (2d ed. 1949); R. GOLDFARB, THE USESOFTHE AMERICAN PRISON 1-25, 103-17 (1974). 68 Perrow, supra note 56, at 921 ("[t]he state mental hospital is a resource-deprived institution"). Courts frequently assert that custodial institutions are woefully underfunded. For example, in Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969), the court criticized the governing board of the Arkansas prison system for attempting to run the system at no net expense to the state, relying heavily on uncompensated inmate labor. Id. at 830. 69 Nelson v. Heyne, 355 F. Supp. 451, 461 (N.D. Ind. 1972) (blaming conditions in youth training school on a "screen of public indifference and political neglect"), aff'd in part, remanded in part, 491 F.2d 252 (7th Cir.), cert. denied, 417 U.S. 976 (1974). Cf. Newman v. Alabama, 559 F.2d 283, 288 (5th Cir. 1977) ("[wje cannot believe that the good people of a great state approved the prison situation demonstrated by the evidence in this case"), rev'd and remanded in part on other grounds per curiam sub nom. Alabama v. Pugh, 98 S. Ct. 3057 (1978). 70 See, e.g., R. MUSGRAVE P. & PUBLIC FINANCE THEORY PRACTICE IN AND 66-78 MUSGRAVE, (2d ed. 1976).
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sources for rehabilitation services and an improved living environment.7'
Environmental and technical conditions shape the internal structure of an institution. Ambivalence about custodial and rehabilitative goals has contributed to the formation of a dual staff structure in which professionals and lay authority compete for effective In power.72 prisons, where the historical balance between the two has been struck in favor of custody, personnel responsible for goals guardingprisoners,maintaining discipline, and providingbasic custodial services dominate the formal hierarchy.73 "professional" The personnel consist of a small band of counselors struggling to penetrate the lay chain of command.74On the other hand, where the philosophy has favoredtherapy, as in most institutions for the mentally ill and retarded, professionalstaff assume theoretical primacy in the organizational structure.75 Most mental hospitals and state schools follow a "medical" model, with a physician-superintendent presiding over a small staff of physicians, who in turn supervise a A nursing staff.76 lay structure of administrative personnel, reportto a steward or business manager, and a large staff of professioning ally untrained attendants coexist with the professional hierarchy, although technically subordinate to it.77 The formal structure of an organization accounts only partially for the distribution of influence among its members. Because formal structures fail to satisfy fully the needs of low-level staff and resident populations,78custodial institutions develop highly detailed
71Extravagantfiscal demandsalso may be part of a strategyto eliminate custodialinstitutions by making them appear to be too expensive to operate. 72 See, e.g., G. DYBWAD,CHALLENGES MENTALRETARDATION IN 87-88(1964);P. MORRIS,supra
note 60, at 55-56; Roos, Evolutionary Changes of the Residential Facility, in RESIDENTIAL FACILITIES THE FOR MENTALLY RETARDED 43-47 (A. Baumeister & E. Butterfield eds. 1970). 29, 73 Etzioni, supra note 64, at 660-61.
74 See, e.g., Moralesv. Turman, 383 F. Supp. 53, 123 (E.D. Tex. 1974) (testimony of Dr. Patricia Blakeney) (juvenile detention facility), rev'd and remanded,535 F.2d 864 (5th Cir.
85 (1971).
SHARAF, & E. STONE, DYNAMICSOF INSTITUTIONAL CHANGE: THE HOSPITALIN TRANSITION62-
1976), rev'd and remanded per curiam, 430 U.S. 322 (1977). See generally notes 166-69, 18993 infra and accompanying text. "7 Etzioni, supra note 64, at 663-64; Friedson, Dominant Professions, Bureaucracy and Client Services, in ORGANIZATIONS CLIENTS: AND IN ESSAYS THESOCIOLOGY SERVICE, OF supra note 62, at 71; Perrow, supra note 56, at 920. 7" See R. SCHEERENBERGER, MANAGINGPRESIDENTIAL FACILITIES FOR THE DEVELOPMENTALLY DISABLED134 (1975). Many mental hospitals have replaced the traditional unitary hierarchical model with a more decentralized or "unitized" model. See, e.g., M. GREENBLATT, M. 77 H. DUNHAM S. WEINBERG, CULTURE THESTATE & THE OF MENTAL HOSPITAL 28-29 (1960). 78 See generally R. CLOWARD, CRESSEY, GRUSSER, D. G. R. MCCLEERY, OHLIN, SYKES, L. G.
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informal patterns of interaction to compensate for organizational Formal structurestypically providethe "frontrigidities and gaps.79 line" staff, such as prison guards and hospital attendants, insufficient protection from physical injury, occupational embarrassment, or social deprivation.80 reduce this exposure,they engage in pracTo tices either forbidden or not officially sanctioned-for example, unauthorized use of physical or chemical restraints, intimidation and violence, and the conditioning of minor privileges on resident These practices become routine, accepted, and intecooperation.81 Custodial staff, gral in the day-to-day operationof the institution.82 finding existing channels of authority insufficiently responsive to their demands for scarce supplies, establish direct and unofficial relationships with the central supply office, a pattern that undermines the apparent authority of the supervisorystructure."8 Because their relationships are controlled only partially by the official authority structure, institutional residents develop elaborate mechanisms for the allocation of privileges and sanctions.84 Many institutions have well-defined patterns of exchange between custodial staff and resident leaders that provide each group with some roughly demarked area of tolerance and freedom from interference by the other.85
& S. MESSINGER,THEORETICAL STUDIESIN THE SOCIALORGANIZATION THE PRISON (Soc. Sci. OF
(E.D. Ark. 1973) ("most of the practicesand conditionsalleged by petitionersto exist and of which they complain are not officially approvedor sanctioned, and a number of them are specifically prohibitedby rules and regulationsof the Department"),aff'd in part, rev'd in
part, remanded in part sub nom. Finney v. Arkansas Bd. of Correction, 505 F.2d 194 (8th
Research Council Pamphlet No. 15, 1960). 79 See, e.g., C. BARNARD,THE FUNCTIONS THE EXECUTIVE OF 114-23 (1968); A. ETZIONI,supra note 61, at 20. Cf. W. CAUDILL,THE PSYCHIATRIC AS HOSPITAL A SMALL 318 SOCIETY (1958) (speaking of "overt formal and informal structure, and . . . covert emotional structure"). s0 See, e.g., Cleland & Peck, Intra-institutional Administrative Problems: A Paradigm for June RETARDATION, 1967, at 2, 3-5 (ward attendants experiEmployee Stimulation, MENTAL ence "social deprivation" routinely during their working day). 81 Etzioni, supra note 64, at 660-61. Several of the judicial opinions in institutional cases explicitly have recognized this phenomenon. See, e.g., Holt v. Hutto, 363 F. Supp. 194, 198
Cir. 1974).
82
See Holt v. Hutto, 363 F. Supp. 194, 201-05 (E.D. Ark. 1973), aff'd in part, rev 'd in part,
remandedin part sub nom. Finneyv. ArkansasBd. of Correction, F.2d 194(8th Cir. 1974). 505
u3 Cumming & Cumming, The Locus of Power in a Large Mental Hospital, 19 PSYCH. 361 (1956); Perrow, supra note 56, at 921-22.
R4Authoritieshave documentedthoroughlythe tendency of powerfulor violent convicts to establish coerciveregimes within prison populations. See, e.g., C. BARTOLLAS, MILLER, & S.
S. DINITZ, D. & TREATMENT supra note 67, at 105-26; G. KASSEBAUM, WARD, D. WILNER,PRISON AND PAROLESURVIVAL: AN EMPIRICAL ASSESSMENT13 (1971); Thacher, Effecting Changes in a CORRECTIONAL INSTITUTIONS: STRATEGIES YOUTH NEW FOR Training School for Girls, in CLOSING SERVICES 92-93 (Y. Bakal ed. 1973). 87,
85 Such accommodations sometimes becomeso well entrenchedthat
they assume "formal"
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All large organizations use what organizational theorists call "routines" or "standard operating procedures."86 institutional The of individual habit, routines promoteefficiency by enacounterpart bling the organization to handle large quantities of transactions without the high costs entailed in devising procedures for each transaction. Because of the costs of designing and implementing new routines, old routines, once established, are highly resistant to change and tend to be stretched to cover novel situations for which Like other structuringdevices, they primarthey may be ill suited.87 ily protect and promote the interests of the dominant classes in the social structure-for example, the interest of the front-line staff in maintaining security and safety or the interest of powerfulresidents in retaining privileges denied to others.88 C. Adjudication as an Instrument of Reform The foregoing discussion points up the difficulties likely to be encounteredin any effortto reforma custodial institution. Theorists of organizational change have identified a wide variety of possible strategies for effecting change in complex organizational settings. Some of these approachesfocus primarilyon the organization'sformal structure, some on the attitudes of its members, others on the external environment, and still others on the organization's In "technology"of production.89 the long run, some level of congruence must be achieved among all four elements to integrate change As securely in the institutional culture.90 organizations age, members shift their primary loyalty from promoting its goals to maintaining its social structure.9'Consequently, any change that threatstatus. A classic example is the "armedtrusty" system condemnedin several prisoncases. See, e.g., Gates v. Collier, 349 F. Supp. 881, 902-03 (N.D. Miss. 1972), aff'd, 501 F.2d 1291 (5th Cir. 1974). 86 See, e.g., G. ALLISON, supra note 22, at 68, 83, 89 (1971); H. SIMON, ADMINISTRATIVE
BEHAVIOR 102 (3d ed. 1976). 88, 87 J. MARCH & H. 177 SIMON, ORGANIZATIONS (1958). 88 V. Fox, INTRODUCTION CORRECTIONS TO 204-05 (1972).
89
izational Change, 1 J. APPLIED BEHAVIORAL 337 (1965); Chin & Benne, General Strategies SCI. for Effecting Changes in Human Systems, in THE PLANNING CHANGE (W. Bennis, K. OF 32 Benne, & R. Chin eds. 2d ed. 1969); Leavitt, Applied Organizational Change in Industry: Structural, Technological and Humanistic Approaches, in HANDBOOKOF ORGANIZATIONS, supra note 56, at 1144. 90 See, e.g., A. DowNs, supra note 56, at 195-97; Watson, Resistance to Change, in THE PLANNINGOF CHANGE,supra note 89, at 488. 9' Starbuck, Organizational Growth and Development, in HANDBOOKOF ORGANIZATIONS, supra note 56, at 451, 475.
See, e.g., Bennis, Theoryand Methodin ApplyingBehavioralScience to Planned Organ-
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ens to disrupt the well-defined informalstructuresof custodial institutions very likely will encounter great resistance, and coercive strategies of change alone will not achieve satisfactoryresults. Remedial efforts must attempt to alter existing incentives and attitudes that the informal structure maintains.92Similarly, a strategy of change must address the external constraints imposed by the environment and the available technology. Custodial institutions depend upon the external political process for their legitimacy, their formal authority, and their funds. The community must support any reform and demonstrate this support in a reallocation of resources through the political process. The institution also must be technically capable of achieving the new task set for it. Even a unanimous adoption of a rehabilitative ideal cannot assure the attainment of that goal unless adequate rehabilitative technologies exist.93 1. Formulating Legal Standards The first task for those who would use litigation as an instrument for systemic reform is to articulate legal standards of institutional performance. As discussed earlier,94 although courts have had no particular difficulty identifying legal principles applicable to inmates' and mental patients' grievances, they have had severe problems in translating the residents' rights into standards that are concrete enough to gauge the constitutional adequacy of specific institutional conditions. To do so, courts must develop a set of indicators to monitor the vital signs of a complex organism. They must decide which parametersto measure. For example, are aesthetic considerations relevant? Is the quality of rehabilitative services for prisoners important? Courts must devise a scale, quantitative or qualitative, calibrated to assess relative levels of performancein specific areas. Should they judge adequacy of living space by square footage per inmate alone or in combination with other factors such as building configuration?They also must find some basis for aggregatingindividual indicators. Should they weigh medical care more heavily than food service? Should they permit above-adequateperformance
92 See Bennis, supra note 89; Granger,Dilemmas of Re-Organizing Institutions for the Mentally Retarded,MENTAL RETARDATION, 1972,at 3; Walton, Two Strategiesof Social Aug. BEHAVIORAL167 (1965). For case studies of SCI. Changeand Their Dilemmas, 1 J. APPLIED
efforts to change custodial institutions based on this approach, see R. RUBENSTEIN H. & THE OF IN HOSPITAL LASSWELL, SHARING POWER A PSYCHIATRIC (1966); Thacher, supra note 84. 93 See H. SCHULBERGF. & BAKER, supra note 66, at 39-46. 94 See notes 38-43 supra and accompanying text.
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on some indicators to compensate for inadequate performanceon others? Finally, courts must identify a standard of minimal adequacy. How many square feet of living space does the Constitution require?What are the components of adequate medical service? A court is not entirely without guidance in making such judgments. Standards usually abound: federal and state standards for model codes promulanalogous institutions, facilities, or services;95 direct comparisonswith pracgated by professional associations;96 tices in other jurisdictions;97 and innumerable "expert" opinions. The court's problem is to decide which of the available standards to adopt and how to justify its choice as a reasoned elaboration of governing principles.98 Available standards usually display wide variation, especially when one compares those reflecting prevailing practices with those embodying professional ideals.99Such varia95 See, e.g., Rhem v. Malcolm, 371 F. Supp. 594, 607 (S.D.N.Y.) (New York City Noise Code used as standardforjail noise levels), aff'd in part, remandedin part on othergrounds, 507 F.2d 333 (2d Cir. 1974);Newman v. Alabama, 349 F. Supp. 278, 286 (M.D. Ala. 1972) (HEW Medicarestandardsapplied to prisonhospital), aff'd in part, 503 F.2d 1320 (5th Cir. 1974), vacated and remandedin part on othergroundsper curiamen banc, 522 F.2d 71 (5th Cir.), cert. denied, 421 U.S. 948 (1975);Jones v. Wittenberg,330F. Supp. 707, 716 (N.D. Ohio 1971) (Toledo Board of Health standardsfor restaurantsused as standardforjail food service), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). 96 See, e.g., Battle v. Anderson,447 F. Supp. 516, 525 (E.D. Okla. 1977) (applyingAmerican Public Health Association standards for prison environmentalconditions); Sidles v. Delaney, Civ. No. 75-300A(N.D. Ohio Apr. 20, 1976) (consentjudgment) (applyingto state hospital standards of the Joint Commissionon the Accreditationof Hospitals); Rhem v. Malcolm, 371 F. Supp. 594, 600 (S.D.N.Y.) (applying American CorrectionalAssociation Manualof Correctional Standardson cell size and inmate recreation),aff'd in part, remanded in part on othergrounds, 507 F.2d 333 (2d Cir. 1974). 97 Several cases have adopted standards used in the decree in Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). See, e.g., Haldermanv. PennhurstState School, 446 F. Supp. 1295, 1303 (E.D. Pa. 1977);Davis v. Watkins, 384 F. Supp. 1196, 1197(N.D. Ohio 1974). Cf. Nelson v. Heyne, 355 F. Supp. 451, 454 (N.D. Ind. 1972) (practicesat otherinstitutions used as evidence), aff'd in part, remandedin part, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976 (1974). But cf. Welsch v. Likins, 550 F.2d 1122, 1128 (8th Cir. 1977) (affirmingorder striking from record evidence on conditions at comparableinstitutions in other states as harmlesserror). 98 Appellate courts occasionally have vacated remedial orders for uncritical adoption of "expert" standards. In one case, for example, the United States Court of Appeals for the Fifth Circuit wrote: [N]or can we agreethat "design"standards,without more, amount to a per se constitutional limitation on the number of prisonerswhich may be housed in a particular prison facility. Those who design prisons are not vested with either the duty or the powerto prescribeconstitutionalstandardsas to prisonspace. Newman v. Alabama, 559 F.2d 283, 288 (5th Cir. 1977) (emphasis in original), rev'd and remanded in part on other groundsper curiam sub nom. Alabama v. Pugh, 98 S. Ct. 3057 (1978). 99 The President'sCommittee on Mental Retardationreportedin 1967that staffing levels
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tions, in turn, often reflect deep-seated differencesof opinion about the proper role of social service institutions and about their residents' capacity for responsibility. The apparent tidiness of most institution-reformingdecrees masks profound conflicts-for example, between the adversarial nature of formal proceduresrequired by due process and the confidence necessaryfor effective therapy in a rehabilitative program,'1? between personal dignity and institutional security,101or between maintaining large institutions and turning to smaller nonresidential settings, a debate now raging
among professionals in the field of mental health and retardation.102
2. Fashioning the Remedy Institutional reformplaces an even greaterstrain on the adjudicative model at the remedial stage. First, a remedial decree is a complex and contingent exercise in prediction. It calls for speculation about the behavior of individuals and human institutions under conditions of unusual stress-judgments likely to be based more on "feel," on the ineffable deposit of experience, than on objectively verifiable evidence. Second, implementation of such a blueprint is
in state residentialfacilities for the mentally retardedbarely exceeded one-half of the 1964 "minimum" staffing standards of the American Association on Mental Deficiency. Roos, supra note 72, at 31. In Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974), defendantsasserted that, with respect to heat, ventilation, and noise, conditions at the Manhattan House of Detention for Men were no worse than conditions experiencedby many New Yorkers.The court, however,found this argument"difficult to take . .. seriously."Id. at 338. 10 Birnbaum,A Rationalefor the Right, 57 GEO. L.J. 752, 756 (1969);Katz, The Right to Treatment-An EnchantingLegal Fiction?, 36 U. CHI. L. REV. (1969). But cf. Bazelon, 755 L. Institutionalization,Deinstitutionalizationand the AdversaryProcess, 75 COLUM. REV. 897, 909-12 (1975) (defendingthe use of the adversarialprocessin mental hospital cases). '01Conflicts of this nature are latent in many aspects of the typical reformdecree, which usually must incorporatesome decision on whether to permit prisonersto keep personal belongingsor to forbidthe use of large, barrackslike sleepingquartersin mental institutions. 102The Wyatt decree made a nod in the directionof deinstitutionalizationby forbidding the admission of any personto a state school for the retarded"if services and programsin the communitycan affordadequate habilitation to such person,"Wyatt v. Stickney, 344 F. Supp. 387, 396 (M.D. Ala. 1972),aff'd in part, remandedin part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), but the decree made no effort to stimulate the establishment of such programs.Note, The Wyatt Case: Implementationof a Judicial Decree Ordering Institutional Change,84 YALE 1338, 1369-73(1975). See also Moralesv. Turman, 383 F. L.J. Supp. 53, 121-26(E.D. Tex. 1974)(a district courtmay orderspecific reformmeasures),rev'd and remandedon othergrounds, 535 F.2d 864 (5th Cir. 1976),rev'd and remandedon other groundsper curiam, 430 U.S. 322 (1977). The consent decree in the Willowbrook case, by contrast, expressly provided for deinstitutionalization.See New York State Ass'n for Retarded Childrenv. Carey(Willowbrook case), 393 F. Supp. 715, 717 (E.D.N.Y. 1975)(requiring the state to reduce institutional populationfrom 3000 to 250 and to establish a network of "communityfacilities and programs" the transferred for residents),discussedin 1 MENTAL
DISABILrrYL. REP. 58, 66-67 (1976).
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not simply a one-way process of issuing clear commands that the defendants then execute. Implementation is an incremental, cyclical process of small steps, each followed by assessment or reaction and further adjustment.'03 Courts must revise decrees repeatedly to cover unforeseen impediments or adverse consequences, most often using routine modes of analysis to evaluate only the most readily available information.'04 Extensive fact-gathering and careful assessment of alternatives usually are impossible because the cost would be prohibitive and the consequent delays crippling."'5 Finally, motivating key actors to take necessary actions or to make needed adjustments depends on skillful use of a variety of techniques. Education, social pressure, appeals to ethical values, or financial or psychological inducements may be far more prompt and potent than coercion.'06 Adjudication is not well suited to such an enterprise. Its logic seeks to cast the multipolar, shifting relationships in institutions into a static and precisely defined conflict. It looks for an optimal, comprehensive,and final solution rather than an incremental, continual adjustment of interests. The adjudicatory model demands objective verifiability, not instinctive feel. It treats institutions as intelligent, organic actors capable of implementing rational objectives through consistent patterns of behavior, and it relies on the invocation of authority and the threat of coercive sanctions to induce changes in behavior.107 The conduct of courts in institutional reform cases strongly suggests that they have appreciated fully this divergence between the adjudicatory ideal and the real demands of their task. Notwithstanding the rhetoric of their opinions, courts have not relied on coercion, almost never invoking serious sanctions even in the face of persistent recalcitrance.'08 Remedial decrees have not been static,
24, 81-143(describingand defending a "strategyof disjointedincrementalism" public policymaking). for 105 generallyNote, supra note 55, at 440-48. See
Cf.
LINDBLOM,supra ', See, e.g., Chin & Benne, supra note 89.
103 See J. PRESSMAN& A. WILDAVSKY, IMPLEMENTATION 87-110 104 D. BRAYBROOKE C. & note at
(1973).
considered imposing the contempt sanction." D. SPILLER, AFTER DECISION:IMPLEMENTATION OF JUDICALDECREES IN CORRECTIONAL SETTINGS-A CASE STUDY OF HAMILTONV. SCHIRO 35
These propositionsare developedextensively in D. HORowrrz, supra note 1, at 33-56. 108 "[Djespite the fact that he found the defendants 'unreasonablyand obduratelyobstinate' in failing to make improvementsin the prison, the judge said that he never seriously
107
(1976) (footnotes omitted). Even where contempt citations have issued, the only penalty typically has been a contingentor nominalfine. See, e.g., Davis v. Balson, No. C73-205(N.D. Hamilton v. Love, 358 F. Supp. 338, 347 (E.D. Ark. 1973).
Ohio Jan. 21, 1977) (contempt citation), discussed in 1 MENTAL DISABILITY REP.335 (1977); L.
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comprehensive blueprints but rather evolving guides, constantly growing and changing. Directly or, more frequently, through appointed agents, courts have engaged in a continuous, largely informal process of obtaining feedback and making adjustments.'?0 Courts, in other words, quietly have assumed a role that, although still cast in the authoritarian rhetoric of the adjudicatory model, actually relies upon a fundamentally different model of social adjustment, grounded essentially in exchange. This approach adopts as its strategic underpinningsa belief that the process of reform is a series of continuing, interacting bargaininggames, not the implementation of normative directives."10 Institutional action, under this view, does not come about as a set of responses to authoritative commands but as the result of a bargaining process. This vision of social change beckons the judge to abandon traditional inhibitions and to exploit the capacity of litigation to structure external political processes. A new model emerges in which the judge becomes an active player, a powerbroker, whose objective is to reallocate power in other games. among players
III. LITIGATIONAS A BARGAININGGAME
In actual practice, of course, litigation has never conformedexclusively to the adjudicative paradigm. Reformers consistently have used litigation as a political tool,"' and political scientists over a period of years have documented the impact of litigation on attitudes and behaviors in the society at large."2More recently, social scientists have used the techniques of organizational theory"3and systems analysis"' to trace the ways in which the judicial and the political systems interact with each other. The focus of this literature has not been the process of litigation itself, however, so much
"11 Chayes, supra note 1, at 1284. See
109 See note 50 supra and accompanying text.
"' Id. at 1284, 1302. But see W. MUIR,PRAYERIN THEPUBLIC SCHOOLS: AND LAW ATTITUDE CHANGE (1967) (acknowledging the validity of this proposition but asserting the continu112 ing predominance of the adjudicatory model). 112 & THE SCHOOL See, e.g., K. DOLBEARE P. HAMMOND, PRAYER DECISIONS: FROM COURT POLICY LOCAL TO PRACTICE (1971); W. Mum, supra note 111. For discussion of the extensive literature on judicial impact, see S. WASBY, THE IMPACT THEUNITED OF STATES SUPREME SOME COURT: PERSPECTIVES OF COURT DECISIONS Becker & M. (1970); THEIMPACT SUPREME (T. Feeley eds. 2d ed. 1973). 113 See, e.g., Mohr, Organizations, Decisions and Courts, 10 LAW& Soc'Y REV.621 (1976). "4 See, e.g., S. GOLDMAN T. JAHNIGE,THE FEDERALCOURTSAS A POLrrICAL & SYSTEM(1971);
R. RICHARDSON & K. VINES, THE POLITICS OF FEDERAL COURTS AND LOWER COURTS IN THE UNITED
STATES (1970); Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of REV. 95 (1974). Legal Change, 9 LAW & SOC'Y
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as the rule of decision in the individual case.'5 Whether treated as input or output, the decision on the merits is the indivisible unit of analysis. Though this conception may provide an adequate foundation on which to analyze the political nature of conventional civil and criminal litigation, it barely begins to capture the interactive character of more complex litigation. In institutional reformlitigation particularly, the rule of decision is of secondaryimportance:it is the decisionmaking process itself that furnishes the medium for its political impact."6No longer external to the "political" process, litigation becomes an integral part of that process. The political bargainingmodel portrayslitigation as a bargaining game played by a small number of players accordingto predefined rules. The nature of these rules and the identity of the playersshape the outcome. The players' abilities and experience determine the skill with which they play; their organizationalpositions and personal ambitions define their stake in the outcome. Like other political processes, it is a game within a game: other political games have triggered and shaped it, and its outcome, in turn, will structure further contests.
A. The Rules
The rules of litigation reflect the tasks central to an adjudicative enterprise: ascertaining the fixed, individual facts of a specific dispute and elaborating the authoritative principles that govern its resolution.At the same time, the rules and the visibility of adjudication create opportunities for making strategic moves with political impact. Litigation consists of many visible, dramatic events-the filing of a complaint, the hearing, a judicial opinion, the issuance of judicial orders-any of which can serve as a convenient vehicle for publicizing institutional conditions that might go unnoticed otherwise except by the rare investigative journalist."7
"5 The literature on the process of litigation itself has been sparse. For examples, see D. HOROWITZ, supra note 1; Chayes, supra note 1; Note, supra note 102. " See pp. 65-76 infra. "7 Most case studies have noted the significant role that the media have played. See, e.g., M. HARRIS,AFTERDECISION: IMPLEMENTATION OFJUDICIAL DECREES CORRECTIONAL IN SETTINGS-A CASESTUDY HOLLAND DONELON OF V. 36-37 (1976); D. SPILLER, supra note 108, at AFTER DECISION: 30-32; D. SPILLER, IMPLEMENTATION OF JUDICIAL DECREES CORRECTIONAL IN SETTINGS-A CASE STUDY OF HOLT V. SARVER50-51 (1976); Note, supra note 102, at 1363. Cf. Bazelon, Implementing the Right to Treatment, 36 U. CHI. L. REV.742, 749 (1969) ("courts fulfill a necessary function when the drama and publicity attending a concrete case provide the illumination of dark recesses which is essential if society and its legislatures are to make informed judgments").
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The rules of litigation provide plaintiffs with a powerful tool to force the political process to deal with grievances that it otherwise might ignoreor deflect with little cost. Casting a grievanceas a legal complaint causes the costs of evasion to rise sharply."8Further, the defendants' answer must be prompt, complete, responsive, and public. Governmentaldefendants usually must respond with a single voice. This obligation forces a high degree of governmentalcoordination and commitment at a very early stage."' Many early decisions about litigation strategy become commitments to positions from which later retreat may be difficult. Other rules, such as the availability of preliminaryrelief and compulsoryprocess for discovery of evidence, also become potent political tools in the hands of reformers.A discovery order authorizing a "participation observation study" by outside experts can open up closed institutions to public scrutiny.'20 Interim orders limiting the population of a jail can trigger secondary improvements in living conditions.'2' The rules of litigation do not confer opportunities for political benefit on plaintiffs alone. Defendants who support plaintiffs' claims can use these same opportunities to dramatize their positions. Defendants who resist the plaintiffs' claims, on the other hand, have available a wide range of dilatory tactics to slow down the pace or to drive up the cost of a lawsuit.'22 Delay not only puts off the eventual day of reckoning, but it also can weaken seriously the cohesion of the political groupthat comprisesthe plaintiff class. Defendants, by transfering,releasing, or taking other action regarding some plaintiffs, often can moot the immediate grievances of at least part of the plaintiff class.'23 Additional litigation expenses can
"18Governmental defendantsmust respondat variousstages or sufferthe adversepublicity of summary judgment, loss of opportunityto participate in remedy formulation,or, ultimately, citationforcontempt.Equallyimportant,courtsmust respondto a complaintas well, a unique attribute of litigation as a social grievancemechanism.D. HoRowITZ, supranote 1, at 38; Chayes, supra note 1, at 1308. "' A tactical maneuverof at least some plaintiffs'lawyersis to take depositionsof governmental witnesses early in the litigation, before defendants can "set up a unified strategy." Wald & Schwartz,supra note 10, at 147-48. '2 See, e.g., Moralesv. Turman, 59 F.R.D. 157 (E.D. Tex. 1972). 121 See, e.g., Hamiltonv. Love, 328 F. Supp. 1182(E.D. Ark. 1971).In Hollandv. Donelon, 2 PRISON REP.375 (E.D. La. 1973), the defendantsagreedto increasethe use of release on L. recognizanceto avoid a preliminaryinjunctionlimiting the jail population. 22For example, defendantscan challengethe certificationof the plaintiff class. See notes 125-27infra and accompanyingtext. '1 Plaintiffs have attempted to meet this tactic by petitioningthe courtto extendjurisdiction to the transfereeinstitutions, a maneuverthat has met with mixed success. Compare Rhem v. Malcolm, 389 F. Supp. 964 (S.D.N.Y.) (transfereesentitled to same standards regardlessof point of origin), modifiedon othergrounds,396 F. Supp. 1195(S.D.N.Y), aff'd,
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have the same weakening effect.'24 Delay also serves the interest of officials who wish to avoid taking positions on controversial political issues until they can discern what outcome would be most advantageous in light of the political forces forming around them. B. The Players
1. The Plaintiffs Most institutional reform cases are brought as class actions on behalf of all present institutional residents and, sometimes, all future residents.'25 The class action, of course, presents problems not in suits by individuals. The defendant can delay the encountered litigation with procedural attacks on the appropriateness of the class, the concurrenceof the interests of class members,or the representativeness of the named plaintiffs' claims.'26Furthermore, as courts frequently point out, the class action is not a legal prerequisite to systemic relief.'27 Despite these risks, however, plaintiff
527 F.2d 1041 (2d Cir. 1975), with Holland v. Donelon, 3 PRISON REP. 288 (E.D. La. 1974) L.
(transfereesentitled to relief only if placed in facilities under the same controlas challenged
facility).
t24
On a numberof occasions,courtshave awardedattorney'sfees to plaintiffsas a sanction
for footdragging by the defendants. See, e.g., Finney v. Hutto, 410 F. Supp. 251, 284-85 (E.D. Ark. 1976) (noting that the progress was "still insufficient" and expressing disappointment that the protracted litigation had not prompted officials to discover violations on their own), aff'd, 548 F.2d 740 (8th Cir. 1977), aff'd, 437 U.S. 678 (1978); Holland v. Donelon, 3 PRISON L. REP. 288, 291 (E.D. La. 1974) ("knowing and deliberate" failure to comply with prior
orders);Gates v. Collier, 371 F. Supp. 1368, 1371 (N.D. Miss. 1973) (citing "unreasonable
and obdurately obstinate" conduct of defendants), vacated and remanded per curiam, 522
F.2d 81 (5th Cir. 1975), reinstated, 70 F.R.D. 341, 343 (N.D. Miss. 1976). Congressremovedthe common-lawlimitation on the authorityof federalcourtsto award attorney'sfees against governmentaldefendantsnot guilty of bad faith, see AlyeskaPipeline Serv. Co. v. WildernessSoc'y, 421 U.S. 240 (1975), by passing the Civil Rights Attorney's Fees AwardsAct of 1976, Pub. L. No. 94-599, 90 Stat. 2641 (codified at 42 U.S.C. ? 1988 (1976)). The SupremeCourtupheld an awardunderthis statute against an eleventh amendment challenge in Hutto v. Finney, 437 U.S. 678 (1978). Cf. Fitzpatrickv. Bitzer, 427 U.S. 445 (1976) (upholdingthe constitutionalityof 42 U.S.C. ? 2000e-5(k)(1976), which permits awardsof attorney'sfees in cases findingviolationsof title VIIof the Civil Rights Act of 1964, 42 U.S.C. ?? 2000eto 2000e-17(1976)).The greateravailabilityof such reliefunquestionably enhances the bargainingposition of plaintiffs. 125 See, e.g., Miller v. Carson,563 F.2d 741, 743 (5th Cir. 1977) (plaintiff class of present and future inmates of county jail); Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974) (plaintiff class of present and future patients at state hospital). 26 See, e.g., Wetzel v. LibertyMut. Ins. Co., 508 F.2d 239, 247 (3d Cir.), cert. denied, 421 U.S. 1011 (1975); La Mar v. H&B Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973). See
& FEDERAL PRACTICEAND generally FED. R. Civ. P. 23(a)-(b); 7 C. WRIGHT A. MILLER, PROCEDURE 1759-1771 (1972); Developments in the Law-Class Actions, 89 HARV. REV. L. ??
1318, 1454-1536(1976) [hereinaftercited as Developments-Class Actions]. 127 E.g., Potts v. Flax, 313 F.2d 284 (5th Cir. 1963). See 0. Fiss, supra note 2, at 484-88.
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tacticians almost universally employ the class action device. Size and diversity create some advantages in litigation.'2 For example, the presence of many plaintiffs makes less likely the defeat of a claim on the ground of mootness or lack of standing. More important, the class action brings impressive political advantages. A governmentcannot dismiss a group grievance as insignificant so easily as it can an individual grievance, no matter how profound.Litigative gains translate into greater real gains because of the apparent strength of larger numbers. In addition, litigation is itself an excellent constituency-buildingdevice for those who wish to create a multipurpose political force.'29 Litigation is a dramatic and decisive gesture, stating a claim in its most extreme and visible form-as a legal right.'30As a positive and visible action, it demands the mobilization of energy and resources. With the political benefits of the class action come the political burdens of managing the constituency. Expanded membership increases potential conflict among members.'3' the early stages, the At leadership can exploit the cohesion characteristic of new organizations, especially advocacy organizations. As the litigation progresses, however,the task of maintaining that cohesion increases in difficulty. Conflicts among lower-level goals emerge, and demands for tangible victories replace satisfaction with symbolic rewards.':2 This divergence may lead some individuals in the class to disrupt the litigation by claiming that their interests are not adequately Often the groupconductingthe litigation is an ad hoc represented.'33 with a history too short for its members to have develorganization oped strong loyalties to it as an organization. Even when a wellestablished organizationorchestratesthe lawsuit, many of the class
128 "Repeat players,"those who engage in litigation frequently,usually have a significant advantage over "one-shotters,"those who have only occasionalrecourseto the courts. See Galanter,supra note 114, at 97-104.The class action is one means by which "one-shotters" can reduce their disadvantage.Id. at 143.
12
tion is . . a form of political expression"). '30 S. SCHEINGOLD, supra note 55, at 84-85. '13 See, e.g., Calhoun v. Cook, 487 F.2d 680, 682-83 (5th Cir. 1973); Baird v. Lynch, 390 F. Supp. 740, 746 (W.D. Wis. 1974); Norwalk CORE v. Norwalk Bd. of Educ., 298 F. Supp. 208, 209-10 (D. Conn. 1968). Cf. Stewart, The Reformation of American Administrative Law, 88 HARV.L. REV. 1669, 1765-70 (1975) (difficulties of maintaining large-group participation in administrative proceedings). 132 Cf. Starbuck, supra note 91, at 474-75 (conflicting goals in organizations generally). 33 See FED. R. Civ. P. 23(a); Special Project, supra note 15, at 877-78, 883-90, 892-901; Developments-Class Actions, supra note 126, at 1475-98.
NAACP v. Button, 371 U.S. 415, 429 (1963) ("[i]n the context of NAACP objectives, litiga-
See Vose, Litigation as a Form of Pressure Group Activity, 319 ANNALS (1958). Cf. 20
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most affected by the outcome have only weak loyalties to the organization itself. Virtually by definition, their participation is grounded in achieving external goals. The conflict in some school desegregation cases between the NAACP's remedial preoccupationwith integrationist objectives and the preference of some black parents for improved educational programs in existing, albeit nonintegrated, schools illustrates this principle.'34 Similarly, advocates of wholesale reform of mental health and mental retardation programs judicial must choose between upgrading institutional care or closing the institutions and substituting community-based programs.'35 Conflicts among advocates of political reform in these fields spill over into the courtroomand threaten to weaken the class's cohesion. The desegregationand the mental health examples illustrate that the resolutionof these conflicts in the courtroomis likely to be quite different from their resolution in the state capitol. Although most recent legislative and administrative reformeffortsin mental health have resulted in community-based programming,the documented litigation, most of which has produced consent orders, barely reflects that concern.s36In fact, in most cases the plaintiffs themselves have sought improvement of institutional conditions rather than deinstitutionalization.'37 This differencein approachshould come as no surprise. Community-based reforms are politically viable because such programsassume, often explicitly, that the most severely retarded or deviant will continue to be confined in remote, isolated institutions. Similarly, programsto upgradethe educational quality of minorityschools found wide acceptance only because segregationists saw the alternative of compulsoryintegration as more threaten134See Bell, Serving Two Masters:IntegrationIdeals and ClientInterestsin SchoolDesegL.J. regationLitigation, 85 YALE 470 (1976). 135One advocatefor the mentally retarded,forexample,has opposedupgrading instituthe tion, the approachtaken in Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remandedin part sub nom. Wyatt v. Aderholt,503 F.2d 1305 (5th Cir. 1974), because it lessens the pressureon society to develop alternative programsfor the retarded in the RETARDED community.See Burt, Beyond the Right to Habilitation, in THEMENTALLY CITIZEN AND LAW 423-25(M. Kindred,J. Cohen,D. Penrod,& T. Shaffereds. 1976).See also THE 418, Rothman,Reaction Comment,in id. at 407. A celebrateddispute arosein the Willowbrook overwhetherthe state wouldbe permitcase ted to transferinstitutional residents into newer, smaller institutions. Althoughthe review panel established to monitor compliance with the consent decree opposed the transfersas violative of the defendants'duty to deinstitutionalize,several parents supportedthe transfers. New YorkState Ass'n for RetardedChildrenv. Carey(Willowbrook case), 393 F. Supp. 715 (E.D.N.Y. 1975). '3 See note 102 supra and accompanyingtext. 37 See, e.g., Horacekv. Exon, 357 F. Supp. 71 (D. Neb. 1973).
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ing.'38Thus, those who represent the interests of the most seriously deviant, like those who advance absolute integrationist goals, have resorted to the courthouse more frequently than those whose goals can be cast in more politically palatable terms.''!' 2. The Defendants The defendant side of most complex public litigation is even more heterogeneous. Plaintiffs in institutional reform cases typically name as defendants a variety of public officials, rangingfrom subordinate administrative officials to the political chief executive.140 These defendants, not surprisingly, have divergent and sometimes sharply conflicting interests, often traceable to their institutional roles.'4' The interaction among defendants themselves forms a major game in institutional reform litigation. a. OperatingManagers The interests of officials with direct operating responsibility-for
138 One critic describedthe final decree in the Detroit school desegregationcase, Bradley v. Milliken, 411 F. Supp. 943 (E.D. Mich. 1975), aff'd in part, remandedin part, 540 F.2d 229 (6th Cir. 1976), aff'd, 433 U.S. 267 (1977), as "openlysolicitous of the fears of Detroit's remainingwhite citizens" because it emphasizededucationalimprovementsratherthan desegregation. Hain, School Desegregation in Detroit: Domestic Tranquilityand Judicial L. Futility, 23 WAYNE REV.65, 131 (1976).
139 See Howard,AdjudicationConsidered as a Process of ConflictResolution:A Variation on Separationof Powers, 18 J. PUB.L. 339, 345-46 (1969). 140See, e.g., Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974) (namingthe present and the past commissioners the MinnesotaDepartmentof Public Welfare,varioussubordinate of officials of the department,and a variety of administratorswithin the state hospital under attack), aff'd in part, vacated in part, remandedin part, 550 F.2d 1122(8th Cir. 1977);Rhem v. McGrath, 326 F. Supp. 681 (S.D.N.Y. 1971) (naming as defendants the warden of the ManhattanHouse of Detention for Men, the Commissioners Correction New YorkCity of of and New YorkState, the Mayorof New YorkCity, the Governor New York,and a presiding of justice of the New York State Supreme Court). The doctrinesof state immunity under the eleventh amendment, see Hutto v. Finney, 437 U.S. 678 (1978), and municipal immunity under 42 U.S.C. ? 1983 (1976), see Monroe v. Pape, 365 U.S. 167 (1961), have prevented plaintiffs from bringingactions directly against state or municipalagencies in federalcourts and necessitatedthe namingof individualofficialsas defendants.Becausethe SupremeCourt recentlyhas overruledthe municipalimmunity doctrine,see Monell v. Departmentof Social Servs., 436 U.S. 658 (1978), plaintiffsin future ? 1983actions involvingmunicipallyoperated institutions can be expectedto includedirectlythe relevantpoliticalsubdivisionor its operating agency. I41 At times the differences within the class of defendantsbreakout into the open. See, e.g., Inmatesof SuffolkCountyJail v. Eisenstadt, 518 F.2d 1241(1st Cir. 1975)(defendantssheriff and jail master joined plaintiffs in seeking an order to compel defendants mayor and city council to fund bail project). Cf. Milliken v. Bradley, 433 U.S. 267 (1977) (defendantstate educationagencyopposingportionsof remedialeducationplan proposedby defendantschool board).
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example, institutional superintendents and their deputies-often They are most overlap substantially with those of the plaintiffs.'42 to support demands that can be satisfied by expending more likely funds or hiring additional personnel. Translating a grievance into a demand for resources, even when alternative remedial approaches exist,'43not only deflects responsibility for the institution's defects away from the operating managerbut also gives him a powerfulally in his unending quest for additional funds.144 Further, operating officials who considerthemselves to be professionalsmay fear losing the respect of their peers by publicly denying plaintiffs' allegations of inhumane conditions.'45 Consequently,those aspects of the plaintiffs' claim that seem most intrusive into institutional operations-demands for better physical facilities, custodial services, and rehabilitative programs-often elicit the greatest initial support from line administratorsnamed as defendants. The same officials, however, are less likely to welcome aspects of the plaintiffs' case that call for substantial changes in operating procedures,especially when an infusion of resources cannot soften the resulting dislocations. Prison administrators'reactions to demands for moreexercise time or the right to keep private possessions, for example, may depend on this type of calculation.'46
142
See, e.g., D. SPILLER,supra note 108, at 35-36; D. SPILLER,supra note 117, at 53, 58. Cf.
Note, supra note 102, at 1368-69(noting the "ambivalence"of the institutional superintendant). 143 Some civil rights advocates have criticized the "quantitative" (input-oriented)approachtaken by most decrees because it fails to addressthe quantity and quality of service (outputs). One proposedalternativeis an "administrativelaw model"that wouldemployfar more elaborate proceduresand supervisorymechanismsthan courts have incorporated into the reporteddecrees.See Hoffman& Dunn, BeyondRouseand Wyatt:An AdminstrativeLaw 297 (1975). Alternatively, courts could express at least some remedial objectives in "output"or "outcome"terms. Several "output"measuresof both institutional performance and individualtherapeuticservicesare available. See sourcescited note 60 supra.The defendants in Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remandedin part sub nom. Wyatt v. Aderholt,503 F.2d 1305(5th Cir. 1974),discussedsome crudeoutput none in its decree. Johnson& Wood,Judicial, Legislameasures,but the court incorporated
REV.
Model for Expanding and Implementing the Mental Patient's Right to Treatment, 61 VA. L.
tive, and Administrative Competence in Setting Institutional Standards, in THE MENTALLY

RETARDED CITIZENAND THE LAW, supra note 135, at 528, 548-49.
144 Some judges have acknowledgedcandidly that public officials have used litigation as a device to raid the treasury.See, e.g., Milliken v. Bradley, 433 U.S. 267, 293 (1977) (Powell, J., concurring)(the Detroit School Board and the plaintiffs "have now joined forces apparently for the purposeof extractingfunds from the state treasury"). '45 See, e.g., Note, supra note 102, at 1367. Another study noted administrators' general
aversion to being sued and appearing in court. J. JACOBS, STATEVILLE: THE PENITENTIARY IN MASSSOCIETY (1977). 118
146 According additional privileges to residents can undermine security, at least in the administrator's mind, but the threat to securitymay be the leveragehe needs to obtain funds
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Executive officials, such as a governor,a mayor, or a budget officer, react quite differently to reform litigation. If named as defendants, they may oppose the litigation simply because they resent the imputation of guilt that being joined as a party carrieswith it.'47 In addition, demands that require substantial additional resources threaten their own authority more than those that affect only internal organizationalprocesses.'48 chief executive's broad political The accountability inevitably forces him to balance the plaintiffs' demands against other, competing demands for resources.His support of a judicially directed reallocation of resourcesdepends in part on the litigation's capacity to alter that external political balance.'49 One important factor influencing the executive's response to a reallocation may be the visibility of the resulting resource transfers. Direct reductions of ongoing programsor tax increases earmarked for new programssharpenthe conflict; increasesin funding financed from normal growth or extrajurisdictionalsources dampen the dispute.'50Equal protection claims explicitly seeking to redistribute existing funds among competing beneficiarygroupspresent the conflict in its most extreme form.'5'On the other hand, demands that
for more staff. Administrators also must be sensitive to the impact of their public statements on employee morale. See Gaver, Reaction Comment, in THEMENTALLY RETARDED CITIZEN AND THE LAW, supra note 135, at 411, 412 ("[i]t is difficult to attack the bureaucracy one heads and at the same time avoid mutiny and chaos"). 47 See note 220 infra and accompanying text. 148 Governor George Wallace indicated the intensity of his opposition to the litigation in Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), by dismissing the commissioner of mental health and two institutional superintendents for assisting or supporting the plaintiffs. Note, supra note 102, at 1353 nn.75 & 76. "' Former Governor Milton Shapp of Pennsylvania welcomed and strongly supported a lawsuit instituted on behalf of retarded citizens seeking wholesale reform of the state's special education programs, Pennsylvania Ass'n for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), as a vehicle for gaining greater control over the fragmented state and local network of special education programs. Kirp, Buss, & Kuriloff, Legal Reform of Special Education: Empirical Studies and Procedural Proposals, 62 CALIF. REV.40, 58-82 (1974). L. 150 For example, in response to the order in Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972), aff'd, 501 F.2d 1291 (5th Cir. 1974), the federal government made available over $1,000,000 in law enforcement assistance funds to help finance improvements. 501 F.2d at 1320. Governor George Wallace refused to honor Judge Frank Johnson's suggestion that he convene a special session of the Alabama legislature to appropriate funds to implement the decree in Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), but he did release revenue sharing funds to the Mental Health Board. Note, supra note 102, at 1369. "15A classic illustration is Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969). See D. HOROWITZ, supra note 1, at 106-70.
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address internal organizationalprocesses are less worrisometo executive officials than to administrators responsible for daily operations. Nevertheless, some claims, though nominally intraorganizational, may attack the strongly held values of powerful political constituencies within, or even outside, the institution. The extent to which desired changes in internal proceduresaffect the public's demands for punishment and security unavoidablyinfluences political executives' responses to prison litigation. In many instances, one or more levels of bureaucracyseparate the operating manager and the chief executive. Officials at these intermediate levels are particularly ambivalent about reform litigation.'52On the one hand, litigation can help them to obtain additional resources from the treasury. On the other hand, it can force a reallocation of their programmingpriorities and their funding. A mental health commissioner committed to deinstitutionalization may resist a traditional "right to treatment" action brought by the patients of a state hospital because the plaintiffs' success in obtaining additional funds for the hospital may reducethe resourcesavailable for community services. This fear is heightened if the governor and the legislature treat the department as entitled only to its "fair share" of the total budget or of any funds available for expansion: any allocation required to comply with a judicial order will reduce funds for other programs.53The commissioner also may be concerned that a sizable investment in the institution will erect an obstacle to closing or significantly depopulating it in the future. New staff hired by the hospital will become dependent upon its continued operation for their livelihood, and significant capital investment in renovation or new construction will commit the state politically to keeping the facility operating at capacity. This latter factor may concern advocates of deinstitutionalization particularly: the chief executive and legislature are likely to prefer capital improvements to increases in operating expenses because the former are funded by long-term borrowing,the immediate fiscal impact of which is very small compared to the immediate benefit provided. c. Defendants' Counsel The potential for conflict among the defendants, then, is imSee Stickney, supra note 10, at 454-56. share" expectations exercise a powerful regulating influence over the budget process. A. WILDAVSKY, POLITICS THEBUDGETARY THE OF PROCESS (1964). 17
152
153 "Fair
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A mense.'54 sense of organizationalloyalty within an existing governmental unit usually prevents disputes from becoming public, but the defendants nonetheless must adopt some mechanism to resolve or to contain disagreement. The mechanism may be to convene an ad hoc committee under the leadership of the political chief execuEven when the tive or the senior administrative official involved.'55 defendants employ such devices, however,the principalresponsibility for coordinationinevitably falls upon the defendants' attorney, for the attorney, in the end, must handle the public presentation of the state's case. The comprehensivenessof the plaintiffs' attack and the precision that the process of adjudication demands of its participants render the task of coordinationparticularlydifficult. The defendants must reach agreement on litigation strategy, performancestandards, and other issues at very high levels of specificity. Virtually no conventional political process, including budgeting,'15necessitates so thoroughgoing and detailed an examination of an institution's The very magnitude of the coordinating task confers workings.157 immense power on the lawyer, thus enhancing the position of influence he already has assumed due to his superior knowledge of legal principles and judicial processes. The tendency of governmental litigation to shift power from administrators to lawyers'15 is especially pronouncedin institutional reformlitigation.'"'Lawyers' professional training and institutionalized roles free them from many of the direct conflicts in values that beset administrators. Indeed, an elected attorney general representing the government
154Case studies document some of the disputes that arise among defendantsin such lawsuits. See, e.g., D. SPILLER, supra note 108, at 47. "15Indeed,one of the salient political outcomesof institutionalreformlitigationcan be the creation of new and efficient lines of communicationwithin the executive branch. See Gilhool, supra note 10, at 156 (noting that one use of courts is to create new forums and to structurenew relationships).See also Denvir, supra note 13, at 1138-39. 56 See A. WILDAVSKY, supra note 153, at 13-16. 157 an illustrationof the scope and depth of the plaintiffs factfindinginquiryin such As of cases, see First Interrogatories the United States, United States v. Solomon,419 F. Supp. 358 (D. Md. 1976),aff'd, 563 F.2d 1121 (4th Cir. 1977), reprintedin 1 MENTAL DISABILITY L.
REP. 96 (1976). "58See D. HOROWITZ, JUROCRACY (1977); Glazer, supra note 12, at 80. Cf. Linde, Due THE 2
Process of Lawmaking,55 NEB.L. REV. 197, 213-15(1976) (noting the crucialrole played by counsel in defendingthe "rationality"of a state statute against attack under the fourteenth amendment). counsel as a critical administrativeshortcoming.See J. JACOBS, supra note 145, at 117.
"5 In his study of Stateville Prison in Illinois, James Jacobs cited the lack of in-house legal
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defendants-not an uncommon situation-may feel even less encumbered by concerns for fiscal or administrative impact.1'"
3. Nonparty Players
Complex institutional reform litigation attracts additional participants serving in advisory or assisting roles. At the hearing stage, they may present expert testimony, submit briefs, and even intervene as litigating parties. In formulating and enforcing a decree, nonparty participants may negotiate, mediate, inspect, investigate, plan, finance, or provide direct services. Among the participants who play significant roles in the game of reform litigation are the United States Department of Justice, other governmental agencies, and professional associations. The Justice Department, through the Civil Rights Division's Office of Special Litigation, has participated as intervenor or amicus curiae in many of the institutional cases, sometimes at the court's invitation,161 and sometimes by its own request.'62 As an efficient mechanism for assimilating and transmitting techniques and strategies used in this new form of litigation, the Department has assisted plaintiffs in obtaining reliable information about institutional conditions, framing meliorative standards that can withstand attack as impractical or improvident, and documenting the harmful effects of certain general practices or conditions.'63 The Department has become, in effect, a national surrogate plaintiff whose expertise can confer on the named plaintiffs important strategic advantages over their more parochial adversaries.
'60See D. HOROWITZ, supra note 158, at 35 (comparing the loyalties of the federal agency lawyer and the Department of Justice lawyer and noting that the latter tends to be "loyal first to his profession . . . and only thereafter to the programs he defends or to his general role as a bureaucrat"). '6' See, e.g., Wyatt v. Stickney, 325 F. Supp. 781, 786 (M.D. Ala. 1971). "2 See, e.g, Gates v. Collier, 349 F. Supp. 881, 885 (N.D. Miss. 1972) (intervention as party plaintiff under 42 U.S.C. ? 2000h-2 (1976)), aff'd, 501 F.2d 1291 (5th Cir. 1974). But cf. United States v. Solomon, 419 F. Supp. 358 (D. Md. 1976) (Attorney General lacks authority to bring suit in name of United States challenging conditions in state hospital), aff'd, 563 F.2d 1121 (4th Cir. 1977). Legislation pending in Congress would authorize the Attorney General to bring actions if he certifies that state officials have had "reasonable time" to correct deficiencies. See H.R. 2439, 95th Cong., 1st Sess. (1977). "13For a discussion of the Department's role in Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), see Note, supra note 102, at 1365-66. Under the terms of an amended consent judgment in Goldsby v. Carnes, 429 F. Supp. 370 (W.D. Mo. 1977), the Community Relations Service of the Justice Department agreed to provide assistance, under title X of the Civil Rights Act of 1964, 42 U.S.C. ? 2000g-1 (1976), by serving as a compliance monitor.
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Governmentalagencies performingvarious regulatory,service, or subsidization functions also can render valuable assistance to a reform effort. The role played by the Department of Health, Education, and Welfare in litigation over school desegregationprovides a classic example of this phenomenon."" a similar fashion, courts In have looked to federal agencies, such as the Law EnforcementAssistance Administration in prison cases and HEW in mental health cases, for assistance in setting standards and in funding program Like HEW's Office of Education in the school deimprovements.'65 segregation cases, nonparty governmental agencies frequently can increase their own influence over local policymaking by participating in litigation. Professional associations frequently play supporting roles in reform litigation.66 Their apparent objectivity, their claim to both professional expertise and legitimacy, and their national constituency give them a particularly influential status. Such groups see in institutional reforms litigation an opportunity to enhance their members' status within often hostile, bureaucraticenvironments.'67 The occupations represented most aggressively in the courtroom quite often are those most excluded from effective powerwithin the custodial institutions under attack.'68 Professionalgroupshave used as a vehicle for redistributing that power to their memlitigation
bers.'69
164 See Wilkinson, supra note 2, at 531-37. See generally G. ORFIELD, RECONSTRUCTION THE OFSOUTHERN EDUCATION (1969). 165 See, e.g., Gates v. Collier, 349 F. Supp. 881, 897 (N.D. Miss. 1972) (Law Enforcement Assistance Administration), aff'd, 501 F.2d 1291 (5th Cir. 1974); Wyatt v. Stickney, 325 F. Supp. 781, 786 (M.D. Ala. 1971) (HEW). State agencies often play an important regulatory role in decree enforcement. E.g., D. SPILLER, supra note 108, at 26 (state and city health inspection agencies). 1" In the Wyatt case, the American Psychological Association, the American Orthopsychiatric Association, the American Civil Liberties Union, and the American Association on Mental Deficiency played active roles. Wyatt v. Stickney, 344 F. Supp. 373, 375 n.3 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). "67 the role of professionals in organizations generally, see M. ABRAHAMSON, PROFESOn THE SIONAL THEORGANIZATION (1967); P. BLAU& W. SCOTT, IN 60-62 FORMAL ORGANIZATIONS 60-74 (1962). 16 See, e.g., Morales v. Turman, 383 F. Supp. 53, 92-94, 101-03, 105-15 (E.D. Tex. 1974), rev'd and remanded, 535 F.2d 864 (5th Cir. 1976), rev'd and remanded per curiam, 430 U.S. 322 (1977), in which the American Orthopsychiatric Association, as amicus curiae, attacked reformatories in Texas's juvenile justice system because they failed to train, to test, or to prescreen their correctional staffs in psychologocial, educational, or vocational areas; used force routinely as the only means of control; and limited the juveniles' contacts with staff trained in psychology. '6 Glazer, supra note 12, at 78-79.
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C. The Judge as Powerbroker The preceding discussion illustrates how various private and governmental actors can use litigation, especially complex litigation directed at systemic reform of public programs, to advance their partisan interests. In these instances, litigation assumes the character of a highly structured bargaininggame in which various players battle for particular outcomes that themselves are inputs into further contests. Among the many players in the game of reformlitigation, however,there is one whose capacity to manipulate its political impact exceeds all others': the trial judge. The judge occupies a unique position in the contest. He is at once central and peripheral, umpire and spectator. The dual character of litigation-as both adjudication and bargaininggame-affords the judge a broad range of choice in defining a properjudicial role. That same duality also creates unique tensions in exercising that choice. 1. Limited Play At one extreme, a judge may seek scrupulouslyto avoid any conscious political calculation, motivated either by a personal disinclination to enter the fray or by an institutional aversion to deviating from the strict neutrality and principled objectivity that the adjudicative ideal demands.'70 these instances, which one suspects are In the most common, the judge assumes only a passive political role.'7' Although other players may attempt to predict or to respond to his position, the judge isolates himself from the political bargaining going on around him. He gauges his actions by their consistency with the adjudicatory ideal, seeking to resolve the conflict exclusively through reasoned elaboration of preexisting principles. He retains some discretion, to be sure, for the adjudicatory model accommodates a range of judicial activism in structuringissues, seeking truth, and enforcing orders.l72 Nevertheless, he makes no con170
See generally ABA CODE JUDICIAL OF CONDUCT Canon 3(A)(1).
central moving force in litigation. He acts when asked by the parties to reconcile a conflict at trial or when necessary to vindicate the interests of the court." Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge, 64 VA. L. REV.1, 15 (1978). See id. at 7 n.20 ("[tlhe American trial judge never has been totally passive, but the umpireal role has been most typical"). See also Frankel, The Search for Truth: An Umpireal View, 123 U. PA. L. REV. 1031 (1975). 72 The Supreme Court has remarked that "the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law." Herron v. Southern Pac. Co., 283 U.S. 91, 95 (1931), quoted in Quercia v. United States, 289 U.S. 466, 469 (1933). These two cases approved only use of directed verdicts and the power of the judge to comment on a witness's credibility.
"' "[T]he judge plays a relatively passive role in our adversary system; he is not the
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scious effort to structure the political process, content instead to let the political processrestructureitself in responseto the adjudicative results. Even the most devoted advocates of a neutral judiciary would permit a departure from the wholly passive role to promote the resolution of conflicts through consent among the nominal parties.'73 Most courts traditionally have encouragedsettlement of disputes at the trial level,174 and some now are seeking to extend those efforts to the appellate level as well.175 Settlement not only conservesscarce resources but also promotes compliance, for parties acjudicial quiesce more willingly in consensual agreements than in coercive decrees. The judiciary's motivation to encouragesettlement is espebecause these cases cially strong in institutional reformlitigation'76 consume enormous judicial resources in pretrial and trial stages and, perhaps more striking, in extended judicial supervision of decrees. Resolution of complex litigation through settlement enables the judge to avoid the difficult task of distilling and articulating detailed institutional standards from highly abstract constitutional or statutory principles and minimizes his involvement in the institution's internal administrative detail. In view of the strategic orientation of many defendants and the interest of courts in promoting settlement, one should not be surprised to discover that a large number of the institutional cases end in consent orders,'77 and in most others agreement among the parties significantly reduces the scope of the dispute.'78
1'3 See Coons, Approaches to Court Imposed Compromise-The Uses of Doubt and Reason, 58 Nw. U.L. REV.750 (1964). 174 See R. RICHARDSON VINES, & K. supra note 114, at 86. A judge's expediting a case toward a final decision does not undermine the adversary system. F. JAMES G. HAZARD, & supra note 17, ? 1.2, at 5-6. 175 See Benjamin & Morris, The Appellate Settlement Conference: A Procedure Whose Time Has Come, 62 A.B.A.J. 1433 (1976); Kaufman, The Pre-Argument Conference: An L. Appellate Procedural Reform, 74 COLUM. REV. 1094 (1974). 17"For illustrations of judicial pressure to settle, see M. HARRIS, AFTER DECISION: IMPLEMENTATION JUDICIAL OF DECREES CORRECTIONAL IN SETTINGS-A CASE STUDYOF COLLINS V. SCHOONFIELD(1976); Note, supra note 55, at 446 n.94. 39 177 See, e.g., New York State Ass'n for Retarded Children v. Carey (Willowbrook case), 393 F. Supp. 715 (E.D.N.Y. 1975); Goldsby v. Carnes, 365 F. Supp. 395 (W.D. Mo. 1973). 17 See, e.g., Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff'd, 494 F.2d 1196 (1st Cir.), cert. denied, 419 U.S. 977 (1974); Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). See also cases cited note 182 infra.
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2. Full Play Complete disposition by agreement is very difficult to achieve, even with the concerted assistance of the judge. The defendants' interests often diverge too sharply to permit easy reconciliation,and the plaintiffs' claims frequently are too comprehensive to secure total support from even the most sympathetic defendant. When resolution by consent fails, a judge can make more aggressive use of his political influence. Whether motivated by a lack of faith in the adjudicatory process as a means of bringing about reform in complex areas or by a strong philosophical or emotional commitment to the outcome, he can mold the political context of the case before him. Through selective intervention he can identify and strengthen the position of allies on whom he can depend to champion the favored remedial objectives in subsequent political games.'79 Litigation presents the politically sensitive judge with almost limitless opportunities for political impact. Three common examples suffice to illustrate the process: the selection of performance standards, the practice of plan submission, and the joinder of defendants. a. Standards of Performance Courts have not allowed the considerable methodological difficulty of elaborating justiciable standards for institutional performance to trouble them deeply. Aside from a ritualized recitation of reluctance to interfere in administrative matters,'" courts' written opinions provide little guidance on their analytical processes."' Al179 Observers have discovered a very similar pattern in the efforts of federal agencies that control grants to influence the behavior of recipient agencies in implementing federal policy THE INFLUENCE FEDERAL objectives. M. DERTHICK, OF GRANTS:PUBLIC ASSISTANCE IN 202-14 (1970). MASSACHUSETrs 'M" See, e.g., Gates v. Collier, 501 F.2d 1291, 1321 (5th Cir. 1974) (disclaiming interference in "minutiae of prison administration"); Holt v. Sarver, 442 F.2d 304, 307 (8th Cir. 1971) ("a federal court should be reluctant to interfere with the operation and discipline of a state prison"); Rhem v. Malcolm, 371 F. Supp. 594, 622 (S.D.N.Y. 1974) ("administration of prisons requires an expertise to which courts do not pretend"). '' See, e.g., Gates v. Collier, 349 F. Supp. 881, 888 (N.D. Miss. 1972) ("[bly any standard of decency, the physical facilities are woefully inadequate and far below minimal requirements"), aff'd, 501 F.2d 1291 (5th Cir. 1974); Holt v. Sarver, 300 F. Supp. 825, 833 (E.D. Ark. 1969) ("[wjithout undertaking to state with specificity the exact point at which one of the isolation cells becomes 'overcrowded' rather than simply 'crowded', . . . the Court finds that the cells have been chronically overcrowded"). Critics have accused the "shocks the conscience" standard of providing "no guidelines by which prison authorities might anticipate and voluntarily conform to federal constitutional standards." Robbins & Buser, litigation supra note 14, at 903.
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though the evidence introduced at trial customarily includes profuse references to criteria for minimally adequate levels of performance, courts very rarely adopt an explicit standard in their findings of fact or conclusions of law.'82Specific operational standards ordinarily emerge only at the remedial stage. Because this lack of judicial specificity is an understandableconsequence of applying very generalized legal precepts to unfamiliar problems, it is not inherently inconsistent with the adjudicative model. From a political standpoint, however, failure to articulate criteria for performanceat the violation stage performsa more affirmative function. A declaration of liability has a powerful symbolic impact.'83 creates an abstraction, an absolute claim on pubIt lic resources. Through its visibility and its authoritative source, it commands central attention on the crowdedpublic agenda. A judicial declaration demands responsive action, and it stirs political actors to preparesuch a response. Early elaborationof the governing standards can dilute the impact of the court's finding, for specification invites attention to the consequencesof remedial action. Detail begins to delineate the contours of the response commanded and thus to confine the choice of solutions and the costs of correctingthe violation. It erects convenient targets for those hostile to reform, permitting them to delay implementation or to reduce its impact through diversion. Forcingplaintiffs at the violation stage to defend specifics rather than generalities adds to their strategic burden. Whether the plaintiffs must bear the added costs of defeating such attacks rests solely on the court's decision to be specific ratherthan general. Stopping short of the specific criterionleaves the plaintiffs in a securer position as they enter the remedial phase of the litigation. 84 Postponing the elaboration of detailed standards also can be instrumental in gaining or strengthening the support of line adminisDefendants often have conceded that the prevailing conditions violate the constitutional rights of institutional residents, thus obviating the necessity for the trial court to fashion explicit standards at the violation stage. See, e.g., Miller v. Carson, 563 F.2d 741, 744 (5th Cir. 1977); Gates v. Collier, 501 F.2d 1291, 1298-99 (5th Cir. 1974); Hamilton v. Love, 328 F. Supp. 1182, 1185 (E.D. Ark. 1971). ':L See M. EDELMAN, POLITICS SYMBOLIC AS ACTION: MASS AROUSAL ANDQUIESCENCE 101 (1971). '"' For example, setting a particular standard of square footage per resident invites unfavorable comparisons with free-world housing standards and provides ammunition for those who would attack courts for turning jails into "country clubs." On the other hand, few would attack publicly the proposition that inmates or patients have a legal right to be free from overcrowding.
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trators who must implement any remedial program.'85 Maintaining their allegiance may be crucial to the success of the reform effort. A judicial finding of violation gives the sympathetic operating official'86a powerful lever with which to pry loose cooperation from intransigent policymakers. He approachesthem no longer as a supplicant but as one armed with the enhanced legitimacy conferredby a sense of legal duty and the threat of judicial sanctions for noncompliance. Too much specificity in the declaration risks undermining the allegiance of operatingmanagersby committing the court to a remedial programthat even supportive defendants will resist as too intrusive or too difficult to implement.'87The superior position of other defendants in the governmental hierarchy or a general resistance to judicially imposed change may prevent the operating officials from participating actively in the development of detailed standards prior to or during the hearing that precedes the finding of a violation. The initial inquiry focuses more on the existence of a legal violation than on the obstacles to its correction.Even if a court attempts to assess the practicalities of implementation at an early stage,'88many problems unavoidably will escape detection, for the remedial process involves the interactive responses of so many actors. Separating the finding of a violation from the devising of a remedy and postponing specification of standards can help sustain the sympathy of operating officials and may foster an attitude on the part of other participants more favorable to the desired outcome. In addition, a court's selection of governingstandards can have a dramatic impact on the balance of political power within the institution. The presentation of models for remedial standards is itself a contest involving particularly high stakes for the professional orProfessionalassociations typically promulganizations concerned.189 gate "model" standards for institutional performanceas referentsto aid members in a continuing political struggle for legitimacy, recog"`' The findings of several "judicial impact" studies that compliance with judicial decisions varies critically with the leadership role taken by local officials underscore the importance of securing the cooperation of officials at the operational level. See, e.g., R. JOHNSON, THE DYNAMICS COMPLIANCE OF (1967); W. MUIR,supra note 111. I6 See pp. 70-71 supra. "7 This possibility parallels the strategic disadvantage of early commitment that defendants face when they must file answers to plaintiffs' complaints. See notes 119-20 supra and accompanying text. "' See Note, supra note 55, at 457 (recommending early inquiry into practical concerns). "' See notes 166-69 supra and accompanying text.
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A nition, and, most important, additional resources.'9" court's adoption of any one set of criteria as the "constitutional minimum"1" may represent a stunning political victory for its authors. Many standards ostensibly advanced for the purpose of improving conditions for institutional clients have the additional consequence of improving the working conditions of the professional groups that devised them. Other standards submitted by such groups, such as the requirement that a "qualified mental health professional"apdiprove various decisions affecting patients in mental hospitals,'92 rectly influence the allocation of operational authority within the
institution.193
b. Plan Submission Once a trial court has entered a finding of liability, it customarily orders the defendants to submit a plan setting forth the measures This practice they will take to remedy the adjudicated violations.'94 has met with criticism on several grounds, rangingfrom the practical objection that it furnishes the defendant with anotheropportunity to delay to conceptual doubts about the suitability of asking the offender to devise a plan to mend its ways. Advocates of this ap'""On the "structural" and "attitudinal" characteristicsof professionalism,see Hall,
Professionalization and Bureaucratization, 33 AM. Soc. REV.92 (1968). Commentators often cite professionalization as an important source of political power in a bureaucracy. See, e.g., F. ROURKE, AND POLICY POLITICS PUBLIC 39-61 (1969). BUREAUCRACY, 'I' Commentators have proposed that courts adopt model professional codes as minimal standards in correctional cases, see Hirschkop & Millemann, supra note 14, at 837, and in mental retardation cases, see Johnson & Wood, supra note 143, at 532. Courts have been selective, however, in the incorporation of professional codes into their decrees. See, e.g., Rhem v. Malcolm, 396 F. Supp. 1195, 1198 (S.D.N.Y.) (adopting a less demanding version of prison recreation standards of the American Correctional Association), aff'd per curiam, 527 F.2d 1041 (2d Cir. 1975).
I'2Wyatt v. Stickney, 344 F. Supp. 373, 379 (M.D. Ala. 1972), aff'd in part, remandedin
part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). 19:'See, e.g., Wyatt v. Stickney, 344 F. Supp. 373, 379-86 (M.D. Ala.), 344 F. Supp. 387, 395-407 (M.D. Ala. 1972), aff'd in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). But cf. Ennis & Litwack, Psychiatry and the Presumption of L. Expertise: Flipping Coins in the Courtroom, 62 CALIF. REV. 693 (1974) (challenging the
presumptionof psychiatricexpertise in civil commitmentdecisions).

I"' An extreme illustration of deference to the defendants is the first opinion in Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969): "The Court will not undertake at this time to prescribe any specific immediate steps to be taken by Respondent. The Court would like to know first what Respondent thinks that he can do, and what he is willing to undertake to do." Id. at 833. The court gave the defendant 30 days to report on "what steps he in fact plans to take." Id. at 834. The only guidance provided by the court was a list of five "suggestions" that "happen to. . . occur to the Court at the moment; the Court does not suggest that they are necessarily all of the steps that can and should be taken." Id.
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proach usually have justified it as a method of exploiting the defendants' "expertise."'95 This argument is neither convincing nor logiconsistent. A human-serviceinstitution found by a judge to be cally riddled with systematic and widespreadviolations of constitutional standards should be the last place to find the "expertise"necessary for comprehensive reform.'96 Certainly it is unlikely to possess the to determine what the Constitution requires, for legal "expertise" the trial court typically leaves the governingstandards in an indefinite state. Moreover,forces within the institution may have shifted real powerto lay front-line staff from the professionalswho have the expertise needed to elaborate new models for the delivery of services.'97To the extent that the institution embodies a model that the court at least implicitly has rejected by having found violations, the vision necessary to identify alternatives is not likely to emerge fromthe institution's own powerstructure. In addition, the powerful instinct for institutional survival and self-exonerationconstrain the defendants in considering alternatives while fashioning a plan. The defendants will avoid consideringany options that severely threaten established institutional routines or arrangements.'"9 Plan submission would not be objectionable if it had no significant impact on the remedy ultimately adopted. Because plaintiffs and amici thoroughlyreview all plans submitted by defendants and the court can modify them extensively, defendants' proposalsarguably would serve only as a starting point in an open process of dialogue and negotiation, the result of which will differ significantly from the plan's initial content.'9 The party that preparesthe plan, however, has a significant advantage. The proposal frames the issues and sets the agenda for future discussion.200 sufficiently deIf
"'See, e.g., Developmentsin the Law:Section 1983and Federalism,90 HARV.L. REV. 1133, 1248 (1977) [hereinaftercited as Developments:Section 1983]. "' L.J. Fiss, Dombrowski,86 YALE 1103, 1155 (1977). For an illustrationof judicial skepticism about both the need for and availability of "expertise"in the correctionalreformcontext, see D. SPILLER, supra note 108, at 55.
197
' For example, a special master appointed in Hamilton v. Landrieu,351 F. Supp. 549 (E.D. La. 1972), recommendedthat operationalresponsibilityfor the parish jail be transferredfrom the elected parishsheriffto a newly created "City Departmentof Detention and Correction" reportingdirectlyto the mayor,a remedialalternativethat the defendantsheriff probablywouldnot have suggested.Id. at 550. Transferof inmates or residentsto community programsis another remedial option not likely to appeal to defendants anxious to preserve their jurisdiction.
"'
i"'
See notes 72-74 supra and accompanying text.
able to individual decisionmakersabout the patterns of preferencein the group," and it

"determines the set of strategies available to the individual." Levine & Plott, Agenda Influ-
Fiss, supra note 196, at 1155. Control over the agenda influences outcomes in two ways: "it limits information avail-
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tailed, as it usually is, the plan warrants detailed examination and response. Its provisions have a high claim to the scarce resourcesof analytical capacity and time available. Ideas or items not addressed in the plan often drift-or are pushed-to the end of the agenda and, when reached, do not compete on equal terms with comparable aspects of the proposal before the court for a central place in the decree. Instead, if they appear at all, they fall into a much more peripheral position. As a consequence, the choice of the remedial architect can have a material impact on the substantive outcome.2"1 When defendants prepare the initial plan, plaintiffs, amici, and the court operate under a handicap. Lacking equivalent access to information about alternative models or obstacles to organizational change, they necessarily must defer to the defendants. The court's only effective recourseis to enlist the aid of a powerfulally, such as the Department of Justice or HEW,202 to attempt to create or one in the form of a special master203 committee.204 or This solution, in turn, may drive up the cost or slow down the pace of the remedyplanning process. Furthermore,though its use may reduce the defendants' tactical superiority, it cannot eliminate their advantage entirely. For these reasons, plan submission possesses obvious political utility. To the extent that the decree reflects their proposals,defendants are more likely to acquiesce in its implementation. Furthermore, their opportunityto shape the content of subsequent political games involving implementation of the decree strengthens their position in those games. The decree, once promulgated,becomes the core of the political agenda, and bargaining within the institution and with executive and legislative bodies focuses on its contents.
ence and Its Implications, 63 VA. L. REV. 561, 564-65 (1977). These effects occur even when the influence on the agenda is accidental. Id. at 589. Cf. Schelling, An Essay on Bargaining, 46 AM. ECON. REV.281, 288 (1956) (arguing that if the specific subjects of negotiation are open to enlargement, the party that is committed has an "out," which, in itself, weakens the commitment to that party's disadvantage). 2" An agenda-manipulator, however, must make his proposal seem fair or "natural" and must try to prevent consideration of alternatives. Levine & Plott, supra note 200, at 571. 212 See, e.g., Wyatt v. Stickney, 325 F. Supp. 781, 786 (M.D. Ala. 1971) (inviting Department of Justice, HEW, and Public Health Service to participate in formulating relief). z':1See, e.g., Halderman v. Pennhurst State School & Hospital, 446 F. Supp. 1295, 1326 (E.D. Pa. 1977) (master appointed to formulate plan). 211 See, e.g., Morales v. Turman, 383 F. Supp. 53, 126 (E.D. Tex. 1974) (drafting committee to consist of two attorneys and three "experts" appointed by the defendants and one attorney and one "expert" each appointed by the plaintiffs, the United States, and the remaining amici), reu'd and remanded on other grounds, 535 F.2d 864 (5th Cir. 1976), rev'd and remanded on other grounds per curiam, 430 U.S. 322 (1977).
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Parties no longer debate about abstract social obligations or conflicting values but rather about the cost, the effectiveness, and the manner of implementing specified remedial requirements.Although the responsibility of preparing the initial plan commits its draftsman publicly to at least some minimum level from which he cannot easily retreat, those who participate in the process derive a critical bargaining advantage over players who do not. The chemistry of the interactions among defendants and other public officials participating in the planning process is likely to enhance further the political advantages of plan submission. The operatingmanagerof the administrative unit under attack generally dominates the planning process. Presumably, he has the greatest knowledgeabout the institution's actual workings.More important, he is the person who must implement any court-orderedchanges. Other officials are reluctant to challenge his judgment about the remedial actions necessary for fear of assuming at least partial responsibility for the plan's effectuation. The unfamiliarity and unpredictability of this relatively novel form of litigation, including the uncertain power of the court, will induce most officials to avoid, rather than to embrace, personal responsibility for achieving remedial outcomes.205 operating manager, on the other hand, occuThe a central position in the operation of the institution that forces pies this responsibility, however unwanted, upon him. Any blame for Furdelay or noncompliance unavoidably comes to rest on him.2"6 the thermore, as indicated earlier,207 lawsuit gives the operating manager unprecedented leverage to obtain additional resources. A judicial decree weakens the resistance he usually encountersin seeking funds. The dampening force of competition for limited resources does not operate so effectively to restrain the fiscal implications of an ad hoc process of planning remedies. The reluctance of other participants to challenge the operating manager'sdecisions extends to his estimates of the institution's resourcerequirementsas well. The very abstractness of the standards most courts invoke to support a finding of liability enhances the operating manager'sbargaining position in the planning process. The less concrete the measure of liability, the less constrained the defendants feel in developing a remedial proposal.Lack of specific guidance enlargesthe effective power that the participant who dominates the making of the
"15
immediate vicinity of a law suit." W. MUIR,supra note 111, at 125. 07 See note 144 supra and accompanying text.
2i "The law forces an official to be a leader or a fool. One does not equivocate in the
See notes 244-46 infra and accompanying text.
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plan can exercise. His range of choice is greater and the ability of others to attack his choices as inconsistent with the judicial mandate is reduced. The process of plan submission, in short, typically increases the bargainingstatus of the operating managerwithin the A executive branch.208 judge alert to relative power relationships among executive officials can heighten further the operating manager's control and can strengthen his allegiance to the court by assigning to him personal responsibility for preparingthe remedial
plan.209
c. Joinder of Defendants Although implementation of decrees in institutional reformoften requiresthe participation of many public officials outside the institution under attack, courts have shown some reluctance to expand the litigation by compelling the joinderof such personsas defendant parties.20 Courts at times have justified this attitude by asserting that they lack authority to grant the kind of relief that would bind these officials: namely, an unconditional, affirmative order to upgrade an institution. Because a state has no constitutional obligation to operate institutions like prisonsor hospitals in the first place, it always retains the option of terminating the offending programs altogether.2"Many courts nevertheless have couched their decrees in unconditional terms, probably recognizing that closure, as a practical matter, is a specious alternative.212 Even though a court may not order a state directly to keep an institution open, its remedial powers presumably extend to requiring the state to take affirmative-and costly-steps, such as providto ing therapeutic programs,23 remedy the harm that past violations
See notes 183-88 supra and accompanying text. '" For an extreme case of a judge taking sides in the remedial planning process, see Hain, supra note 138, at 127-31. 211 See, e.g., Welsch v. Likins, 550 F.2d 1122, 1130-32 (8th Cir. 1977) (refusal to join governor and legislature); Wyatt v. Stickney, 344 F. Supp. 387, 389 n.3 (M.D. Ala. 1972) (noting denial of motion to join the state treasurer, comptroller, the commissioner and members of the Board of Pensions and Security, or the director and members of the State Personnel Board), aff'd in part, remanded in part on other grounds sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). 211 See, e.g., Welsch v. Likins, 550 F.2d 1122, 1131-32 (8th Cir. 1977); Rhem v. Malcolm, 507 F.2d 333, 341 n.19 (2d Cir. 1974). 212 See Frug, supra note 15, at 728-29, 792. 21:1 See, e.g., Newman v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977) (upholding an order that the prison provide inmates with recreational facilities to "extirpat[e] the effects of the conditions which undisputably prevailed in these prisons"), rev'd and remanded in part on other grounds per curiam sub nom. Alabama v. Pugh, 98 S. Ct. 3057 (1978). The harmful effects of custodial institutions on their residents are well documented. See, e.g., Culbertson,
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have inflicted on institutional residents. Furthermore,because the operating manager may not have authority under state law to discharge residents or to close an institution, the concurrenceof other officials, such as a parole board or the superintendents of transferee institutions, may be necessary to effect full relief.214 Finally, when, as in virtually all cases, the operating manager agrees with the plaintiffs and the court on the necessity of keeping the institution open, the court can justify compulsoryjoinder of other officials as a means of assuring compliance with the decree.215 A more persuasive reason for the judical reluctance to join executive and legislative officials as defendants is the traditional equitable doctrine of comity.2'1 Usually understood as a matter of judicial this doctrine in effect candidly acknowledgesthe political protocol, character of some litigation. Incorporatingadditional parties into the lawsuit changes its dimensions as a political game and its relation to other games. The greater the diversity of the public officials involved as defendants, the greater is the range of conflict on the defendants' side of the lawsuit.217 increased conflict may reduce This the prospects of consensual resolution of the dispute.218 substantially If hostile executive or legislative officers are involved more actively in the lawsuit, sympathetic operating managers may be less willing to support actively the plaintiffs' position.219 a result, the court As may have to impose a remedy that receives considerably less support from the officials responsible for its implementation.
CRIMINOLOGY
The Effect of Institutionalizationon the DelinquentInmate's Self Concept,66 J. CRIM. & L. 88 (1975); Roos, supra note 72, at 34.
214 See, e.g., Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196, 1199 (1st Cir.), cert. denied, 419 U.S. 977 (1974). 215 "A person . . . shall be joined as a party in the action if. . . in his absence complete relief cannot be accorded among those already parties ...." FED. R. Civ. P. 19(a). 216 See, e.g., Inmates of Boys' Training School v. Affleck, 346 F. Supp. 1354, 1358 (D.R.I. 1972) (plaintiffs' reform efforts characterized as directed against only prison administrators, not state legislature or judiciary, thus avoiding comity objections). In the context of federal judicial intervention in state governmental obligations, the Supreme Court has treated "comity" as virtually synonomous with "federalism." See Younger v. Harris, 401 U.S. 37, 44 (1971). 217 Courts also can contain the scope of conflict by selectively excluding certain officials from participation in remedial planning. For example, in one case a court excluded the defendant county sheriff from participating in contract negotiations between defendant municipal officials and a voluntary hospital for the provision of medical care at the jail. D. SPILLER, supra note 108, at 33. 21 See Heymann, The Problem of Coordination: Bargainingand Rules, 86 HARV.L. REV. 797, 831-33 (1973) (high costs of multiparty bargaining). 219 Open support for institutional reform litigation in some cases has contributed to the dismissal of agency heads from their positions. See D. SPILLER,supra note 117, at 66; Note, supra note 102, at 1353 nn.75 & 76.
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One can overstate the practical effect of excluding executive officials. Presumably, most defendants at the operating level make some attempt to clear their litigation strategies with their superiors, whether or not the superiors are parties. Nevertheless, one can assume that a lawsuit receives more attention from preoccupiedexecutive officials if they are named defendants. As parties, they are likely to feel a degree of personal accountability to the court and to devote greater attention to litigation issues. At the same time, joinder may engender personal hostility to the litigation on principle: they may regard their status as defendants as an unwarrantedimputation of personal blame and an excessive interferencewith governmental prerogatives.220
d. Summary
Institutional reform litigation thus presents the power-conscious trial judge with numerous opportunities to influence directly the distribution of effective power within the institutional defendant. He can use his discretion over matters ranging from preliminary relief to the scope of the litigation to the process of formulatingand enforcingremedies to enlarge the negotiating power of sympathetic operating managers and external actors. He can enhance dramatically the status of professional groups by his choice of remedial standards. A pattern emerges in which three power shifts predominate. First and most important, power within the executive branch of the affected jurisdiction tends to shift toward the operatingmanager. Second, the litigation tends to redistribute power within the institution from the custodial staff to professionalworkers.Finally, the executive branch tends to gain significant bargaining advantages over the legislature as a consequenceof its active involvement in the litigation. Conscious choices made by courts can influence any of these patterns, and judges can use all of them to promotethe plaintiffs' remedial objectives.
IV. STRUCTURALLIMITATIONSON A POLITICALJUDICIARY
preceding discussion presents troublesome questions about the lim221' Some indirect evidence indicates that these considerations apply with particular force to members of legislative bodies. See D. SPILLER, supra note 108, at 58-62. In no reported case has a court joined the representatives of a state legislature as defendants. Concerns about offending political figures, as well as limiting access to them, presumably motivate some plaintiffs not to request their joinder. See, e.g., M. HARRIS, supra note 176, at 33-34.
The image of the judge as political powerbroker portrayed in the
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its of judicial legitimacy. To be sure, much of what courts customarily do is "political" in at least some sense of the word.In many areas of judicial responsibility, such as criminal sentencing221 much and of equity jurisprudence,222 courts historically have exercised broad discretion in disposing of disputes, largely unfettered by positivistic constraints. Although the proper limits of judicial policymaking remain the subject of fierce debate,223 most observers admit that courts necessarily "legislate" at least in the "interstices"224 "open or of texture"225 the positive law.226 the ease with Nevertheless, despite which we may view the judge as occasional social policymaker or community conscience, the prospect of a judge intervening actively in governmental politics offends cherished images of the judicial function. The role of powerbroker implies a degree of partisanship, manipulation, and guessworkoffensive to accepted judicial virtues of neutrality, passivity, and objectivity. Moreover, it sanctions a degree of judicial intrusion into the political process that conflicts sharply with values inherent in federalism and separationof powers. Unbridledjudicial manipulation of political relationships threatens to undermine state sovereignty, to demoralize political institutions, and to override checks against the accumulation of despotic
power.227
221 See, e.g., Alschuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for "Fixed" and "Presumptive" Sentencing, 126 U. PA. L. REV.550, 555-63 (1978). For an empirical study of sentencing discretion, see M. LEVIN, URBAN POLITICS ANDTHECRIMINAL COURTS 91-97 (1977). 222 AND MATERIALS EQUITY EQUITABLE ON AND REMEDIES 222-23 (1975). See, e.g., E. RE, CASES 22m Most of the debate has focused on the Supreme Court. Compare, e.g., R. BERGER,
BY GOVERNMENT JUDICIARY (1977), A. BICKEL, THE SUPREMECOURTAND THE IDEA OF PROGRESS AND LAW (1970), and H. WECHSLER,PRINCIPLES, POLITICS, FUNDAMENTAL (1961) with M. SHAPTO JURISPRUDENCE IRO, LAW AND POLITICSIN THE SUPREMECOURT: NEW APPROACHES POLITICAL
(1964), Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science, 20 STAN. L. REV.169 (1968), Miller & Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U. CHI. L. REV. 661 (1960), and Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV.L. REV. 769 (1971). See generally Mason, Judicial Activism: Old and New, 55 VA. L. REV. 385 (1969). 224 B. CARDOZO, THE NATURE OFTHE JUDICIAL PROCESS (1921). 129 225 H.L.A. HART,THE CONCEPT LAW124-25 (1961). OF 226 Not everyone agrees that judges should "legislate." See, e.g., Dworkin, Hard Cases, 88 HARv.L. REV.1057, 1057-60, 1105 (1975) (arguing that judges should decide cases on the basis of "principles" derived from the "political morality presupposed by the laws and institutions of the community," not on the basis of "policy"). See also Sartorius, Social Policy and Judicial Legislation, 8 AM. PHIL.Q. 151 (1971). 227These same arguments, of course, provide the basis for the much-debated scholastic and judicial efforts to locate the limits of federal equitable power. See sources cited notes 233-41 infra.
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The Effectiveness of the Judge as Powerbroker
The emerging political role of courts, though vulnerable to such charges, is scarcely defenseless against them. Defenders of the political role argue that it can be both more efficacious and less intrusive than a more coercive judicial strategy possibly could be.228 this In view, the model of a politicized judiciary does not arise simply out of expedience or desperation; it is based upon a careful assessment of institutional competency. Although the model tolerates partial and gradual change rather than demanding immediate and complete dispositions, a strategy more faithful to the adjudicative ideal does not assure any more dramatic success in reforminginstitutions. Indeed, it may prove counterproductivein the long run. The patterns of behavior manifested by complex public organisms reflect the impact of factors far too pervasive and powerfulto yield quickly to invocations of authority or external forces.229 Virtually all organizational theorists stipulate as one condition for successful change the participation of those whose behaviormust be altered.230 stratA egy of judicial intervention that relies heavily on existing political bargaining processes affords a larger opportunity for the active involvement of those affected.231 participants are far more likely The to incorporate the resulting changes into the permanent fabric of organizational processes and relationships.232 Explicit attention to the political characterof litigation, one also can claim, enables courts to minimize the degree of judicial "intrusiveness" into other spheres of governmental action. Despite universal recognition of this goal, as embodied in the principles of
22 One cannot address fully, or perhaps even adequately, the question of legitimacy without a discussion of political and moral philosophy that would be beyond the scope of this article. Most contemporary defenses of the courts' interventionist role, however, have rested primarily on a belief in its efficacy. See, e.g., Chayes, supra note 1, at 1307-09; Denvir, supra note 13. 22" See notes 89-93 supra and accompanying text. THE SOCIOLOGYORGANIZATIONAL OF CHANGE 95-104 (1973); Simon, Recent 23''See E. JOHNS, Advances in Organization Theory, in RESEARCH FRONTIERS POLITICS GOVERNMENT IN AND 23, 28-29 (Brookings Lectures 1955). 231 See Developments: Section 1983, supra note 195, at 1247-49 (defending an "incremental approach" to systemic relief). 232 See Special Project, supra note 15, at 910; Note, supra note 55, at 457. Justice Frankfurter once observed that not only does participation in governmental decisionmaking aid in arriving at the truth but no "better way [has] been found for generating the feeling, so important to a popular government, that justice has been done." Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171-72 (1951) (Frankfurter, J., concurring). See Saphire, Specifying Due Process Values: Toward a More Responsive Approach to Procedural Protection, 127 U. PA. L. REV. 111, 120-21 (1978).
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federalism233 separation of powers,234 and courts have been unable to articulate workablesubstantive criteriafor its measurement.Appellate courts' efforts to define the limits of federal judicial power on the basis of the nature or importance of the governmentalfunction with which a trial judge has interfered235 the impact of his decree or or upon an agency's "internal affairs,"236 "structure,"237 discretionhave proved unsatisfactory.239 Alternative measures ary choices238 suggested by some commentators suffer from a similar indetermi233 See, e.g., Milliken v. Bradley, 433 U.S. 267, 282 (1977); Swann v. CharlotteBd. of Educ., 402 U.S. 1, 16 (1971). Mecklenburg 234 See, e.g., United States v. Nixon, 418 U.S. 683 (1974). The Court has held the doctrineinapplicableto the federaljudiciary'srelationshipto the states separation-of-powers because the doctrinedoes not concernfederal-staterelations.Elrod v. Burns, 427 U.S. 347, 352 (1976). Thus its vitality in institutional reform litigation is limited to the handful of federal cases involving federal institutions, e.g., United States ex rel. Wolfish v. United States, 428 F. Supp. 333 (S.D.N.Y. 1977) (by implication), or state cases involving state institutions,e.g., WayneCountyJail Inmatesv. Lucas, 391 Mich. 359, 216 N.W.2d910 (1974) (directly noted). For an argumentthat separation-of-powers principlesshould apply to the federal-staterelationship,see Nagel, supra note 15. 25 See, e.g., Smith v. Sullivan, 553 F.2d 373, 380-81 (5th Cir. 1977) (orderspecifyingthe Courtin setting pay scale of jail guards"interfereswith the authorityof the Commissioner's the amount of the budget"). Cf. Welsch v. Likins, 550 F.2d 1122, 1131-32(8th Cir. 1977) (vacating an orderrequiringexpenditureof state funds without a legislative appropriation because no right is entitled to greaterrespect than the state's right to "manageand control its own financial affairs").The Supreme Court has held that a federal court may issue an order, directly or by implication, requiringthe raising and expenditureof public funds. Milliken v. Bradley, 433 U.S. 267, 289 (1977); Bounds v. Smith, 430 U.S. 817, 827 (1977); Griffinv. County School Bd., 377 U.S. 218, 233 (1964). But see Frug, supra note 15, at 75771 (arguingfor a narrowreadingof the precedents).But cf. Note, Enforcementof Judicial Financing Orders:ConstitutionalRights in Search of a Remedy, 59 GEo. L.J. 393 (1970) (contendingthat such judicial decisions dependfor their efficacyon the enforceabilityof the order). m Rizzo v. Goode, 423 U.S. 362, 378-79 (1976). For a critique of the application of the "internal affairs" classification in Rizzo, see Weinberg, The New Judicial Federalism, 29 STAN.L. REV. 1191, 1221-22(1977). See also Fiss, supra note 196, at 1158-59. 237Hills v. Gautreaux,425 U.S. 284, 296 (1976) (explainingthat its reasonfor vacating a orderin Millikenv. Bradley,418 U.S. 717 (1974),was that metropolitanschool desegregation the orderhad "contemplated. .. restructuring operationof local governmententities"). the See also Milliken v. Bradley,433 U.S. 267, 292 (1977). 238See, e.g., Smith v. Sullivan, 553 F.2d 373, 379-80 (5th Cir. 1977) (order specifying minimum content of prisoner'sdaily menu gives sheriff "too little choice"); Williams v. Edwards,547 F.2d 1206,1215(5th Cir. 1977)(squarefootagestandardforovercrowding "may not ... be appropriate practicable").Lowercourtshave differedon the adequacyof a per or se rule for square footage. CompareFinney v. Hutto, 410 F. Supp. 251, 256-57 (E.D. Ark. orderedhalted), aff'd, 548 F.2d 740 (8th Cir. 1977),aff'd, 437 U.S. 1976)(severeovercrowding 678 (1978),with Gates v. Collier,407 F. Supp. 1117,1119-20(N.D. Miss. 1975)(overcrowding of 10%held not actionable). 23"See Leubsdorf,Completingthe Desegregation Remedy,57 B.U.L. REV. 83-87(1977); 39, Nagel, supra note 15, at 714-16.
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nacy,240 especially when the legal standard applicable is itself ambiguous.241The value of minimizing judicial intrusiveness is measured better by considering the process rather than the substance of the judicial intervention.242 Under this approach, whether intrusiveness is excessive depends upon the degree to which the court has left room for the exercise of governmental choice in the remedial process. The values protected by the doctrines of federalism and separation of powers requirecourts to exercise their power in a way that gives the governmental actors involved the greatest possible latitude to shape and to implement constitutionally required change. The court's role, so conceived, is to stir the governmental entities to action to make sure that issues are addressedand choices made, not to make those choices itself. Litigation can achieve this goal more effectively as a political instrument than as an adjudicatory one. The political model channels and influences the bargaining process by which governmental actors make public choices and convert them into action. It relies on the processes themselves, rather than direct coercion, to achieve results. The political bargainingmodel of litigation implies a redefinition of the very "results" against which its efficacy should be judged. The underlying objective of institutional reform cases becomes essentially a political goal: to enable a uniquely disenfranchised, incarcerated population to have the nature of its confinement examined and restructuredthrough a sustained and focused application of the political process. Residents of custodial institutions have so little access to the traditional decisionmakingforumsof government that they are less able than other groupsto forcesustained attention on their situation within those normal processes. Consequently,the conditions of their confinement are more likely to be determined as a residue of decisions primarily addressed to other issues than by
240 E.g., Nagel, supra note 15, at 707-12 (proposing"depth" and "breadth"measuresof intrusion). 241 The SupremeCourthas minimizedthis difficultyin reapportionment cases by reducing the constitutionalanalysis to a single factor: equality of electoral district populations.See
and "effectiveness"are small and relativelyeasy context, tradeoffsbetween "intrusiveness" to make. See, e.g., White v. Weiser,412 U.S. 783, 793-97(1973).If the primaryconstitutional standardis not specific, however-e.g., "adequatetreatment,""decentconditions"-one can defend almost any degree of additional "intrusion," even if unmeasurable, as more "effective."
242 Goldstein, A Swann Song for Remedies: Equitable Relief in the Burger Court, 13 HARV. C.R.-C.L. L. REV. 1, 63-64 (1978). See generally id. at 59-71.
Reynolds v. Sims, 377 U.S. 533 (1964); Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence Undefined, 35 U. CHI. L. REV.583, 592-94 (1968). In such a
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the exercise of clearly focused policy choices.243 This group'sinterest in securing focused public attention is particularly strong because the state exercises so complete control of their daily existence. Litigation addressed specifically to the conditions of confinement provides custodial residents with the leverage to magnify their influence in a political process that systematically has excluded them.244 A judge's adoption of the role of political catalyst represents not simply a strategy for attaining specific substantive goals but a direct remedy for their disenfranchisement. Unfortunately, these utilitarian justifications for the courts'political role are theoretical, not empirical. Even from a pragmaticpoint of view, the politicization of the judiciary carries with it as many risks as opportunities. Any form of extended judicial interventionin The policymaking can demoralize administrative processes.245 "Alabama Federal Intervention Syndrome"246 illustrates hpw officials who fear losing effective power or their constitutents' support if they make controversialdecisions may withdraw altogether from any active role in decisionmaking and leave the outcome to the courts.247 One may, with Judge Frank Johnson, rail against the ti243
Cf. Sage, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest
L. City Enterprises,Inc., 91 HARV. REV.1373, 1411-23(1978) ("due processof lawmaking" requiresthat certainlegislative decisionsbe made by "deliberative" process).See also Tribe,
Structural Due Process, 10 HARV. C.R.-C.L. L. REV. 169 (1975).
244 This argumentbears a resemblanceto the "disenfranchisement" justificationfor close judicial scrutinyof legislative acts underthe fourteenthamendment.As classicallystated by Justice Stone in his famous CaroleneProductsfootnote,a centralrole that the federalcourts play underthe fourteenthamendmentis to act as a kind of politicalchampionforthose whom the states exclude from normaldecisionmakingprocesses.United States v. CaroleneProds. Co., 304 U.S. 144, 153 n.4 (1938).Justice Stone's dictum is best knownas the genesis for the "suspect class" concept in equal protectionanalysis, but its logic could extend protectionto those who are disenfranchised only by "prejudice" also by deprivationof liberty-an not but argumentpremisedmoreon due processthan on equal protectionanalysis. The prospectsfor its acceptanceby the SupremeCourt,however,are not promising,as suggestedby the Court's reluctanceto extend the disenfranchisement principlein equalprotectioncases. See, e.g., San Antonio IndependentSchool Dist. v. Rodriguez,411 U.S. 1 (1973);Dandridgev. Williams,
397 U.S. 471 (1970); Ely, The Supreme Court, 1977 Term-Foreward: On Discovering Fundamental Values, 92 HARV. REV.5, 7-9 (1978) (documenting the Burger Court's "retreat" from L. protection of "discrete and insular minorities"). 245 See Leubsdorf, supra note 239, at 87. Foran assertionthat correctional reformlitigation has had precisely this effect on prison administration, see Bershad, The Law and Corrections: A Management Perspective, 4 N. ENG. J. PRISON 49 (1977). In another context, Professor L. Louis L. Jaffe has invoked the same notion, in its positive form, as a justification for judicial deference to administrative decisions. L. JAFFE, JUDICIAL CONTROL ADMINISTRATIVE OF ACTION 573 (1965). 246 McCormack, The Expansion of Federal Question Jurisdiction and the Prisoner Complaint Caseload, 1975 Wis. L. REV.523, 536. 247 Id.
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but midity or the irresponsibilityof such behavior,248 such criticisms Even offigrossly oversimplify the motivations of political actors.249 cials who favor reform may appreciate the conflicting interests implicated in any wholesale reform effort, and if a court too easily brushes aside their compromise efforts as inadequate, they may be unwilling to invest the effort and to take the political risks that As reform requires.250 a result, repeated judicial intervention can discourageacceptance of responsibility.A judge's pursuit of a political strategy may contribute to and aggravate these dislocations. Support for one actor at the expense of another may cause the disfavored one to react hostilely and to attempt to thwart reform. Many factions typically disfavored by judicial decrees, especially lay institutional staff, have a practically limitless capacity to sabotage reform.25' An instrumentalist defense of the powerbroker role, then, necessitates a practical assessment of judicial competence. Are judges sufficiently skilled in the art of political bargaining? Can they devote the amount of time necessary to supervise extended negotiations? Do they have access to necessary information? Do they possess effective power to induce changes of behavior in intended directions? Beyond any particular judge's personal abilities, the structural characteristics of the judicial position impose limits on the effective capacity of even its most politically skillful incumbents. Only if the adjudicatorycharacterof litigation itself provides a basis for success can one assert the efficacy or defend the legitimacy of exploiting its more political dimension.
248
Johnson, supra note 10, at 905.
pp. 70-73supra. These objectionsalso ignorethe practicaldifficultiesof complying with many remedialorders.See, e.g., Holt v. Sarver,442 F.2d 304, 309 (8th Cir. 1971)(noting the difficulty of remedyingprison conditionsovernightand suggestingtime may be needed to train qualifiedpersonnel);D. SPILLER, note 117, at 69 (difficultyof attractingcompesupra tent personnel). The 250 failureof courtsto acknowledge remedialeffortsby the political branches,however incomplete,has engenderedresentmentand "backlash"in at least one documentedcase. See 25 For illustrationsof resistanceby institutional staff to court-ordered changes, see Davis v. Balson, No. C73-205(N.D. Ohio Jan. 21, 1977) (orderadopting special master's report); Holt v. Hutto, 363 F. Supp. 194, 201-02 (E.D. Ark. 1973), aff'd in part, rev'd in part, remandedin part sub nom. Finney v. ArkansasBd. of Correction, F.2d 194 (8th Cir. 1974); 505 J. JACOBS, supra note 145, at 115-16;Note, supra note 102, at 1368-69.
D. SPILLER, supra note 117, at 70-71.
249See
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Judges as Powerbrokers B. The Judge's Resources and Tools
95
1. GatheringInformation The judiciary has adopted many techniques through the years to improve its institutional capacity to obtain the informationit needs to make judgments of social policy.252 Through the use of the "Brandeis brief," the encouragementof intervenorsand amici, and courts have relaxed dramatithe appointment of special masters,253 cally the informational limitations once thought to be imposed by The political powerbroker, however, the adjudicative model.254 needs a different kind of information. The judge must have access not only to "social facts" but also to "political facts"-information about the principal players and their respective agendas, power,and bargaining skills. Sitting trial judges, though seemingly insulated from the turmoil of governmentalpolitics, may be familiar with the rules and major players involved in the politics of their districts255 as a consequence of the political process that determined their initial appointment.25Nevertheless, their exposure at best is limited to a narrowrange of the political spectrum, far short of the overall role. awarenessthat complex litigation requiresof the powerbroker Many players have an incentive, of course, to communicate information about their bargaining positions voluntarily. Institutional reform litigation is not a contest of pure conflict-a "zero-sum" It game, in the language of game theory.257 is a "mixed-motive"or
252
See Levin & Moise, School DesegregationLitigation in the Seventies and the Use of
Social Science Evidence: An Annotated Guide, LAW& CONTEMP. PROB.,Winter 1975, at 50
(1975);Miller & Barron,The Supreme Court, the AdversarySystem, and the Flow of Information to the Justices: A PreliminaryInquiry,61 VA.L. REV. 1187 (1975). 253 See P. ROSEN, THE SUPREME COURT AND SOCIAL SCIENCE 75-84, 134-72 (1972). These devices enable Americanjudges to move in the directionof the "inquisitional"model used on the Continent. For a descriptionof this model, see, for example, Damaska, Presentation 1083, 1088-90(1975). of Evidence and FactfindingPrecision, 123 U. PA.L. REV.
24 For a classic statement of the modest judicial role in factfinding, see Morgan, Foreword CODE EVIDENCE 3-4 (1942). OF to MODEL 1, 255 The empirical evidence supports this assertion. See S. GOLDMAN & T. JAHNIGE,supra
note 114, at 70-72; Goldman,Judicial Backgrounds,Recruitment,and the Party Variable: The Case of the Johnson and Nixon Appointees to the United States District and Appeals
Courts, 1974 ARIZ.ST. L.J. 211.
256
"Senatorialcourtesy"is the traditional vehicle for such influence at the federal level.
FEDERAL THE APPOINTING See H. CHASE, JUDGES: PROCESS 6-12, 35-43 (1972); J. GROSSMAN, AND LAWYERS JUDGES: THEA.B.A. AND THEPOLITICS JUDICIAL OF SELECTION 27-28 (1965). 257 See R. LUCE & H. RAIFFA, supra note 25, at 64. The two-person zero-sum game is the
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in "bargaining" game258 which interests partially overlap. To the extent that players' interests coincide,259 they may be willing to collaborate by communicating their positions honestly and voluntarily. When players' interests conflict, however, they have an incentive to suppress or to distort information about their positions. In this situation, the judge possesses a powerfulbargaining advantage: he often can force other actors to make a commitment. In conflict games, a player may suffer a disadvantage by being forced to make the first "move." A move communicates something of the The player's strategy, and it commits him to a minimum position.260 a response from an actor, can force him to judge, by demanding make the "next move." With representations to a court made in public and on pain of perjury, bargaining positions taken in response to judicial commands are almost certain to be genuine. The judge does not have unlimited power to force commitment, however. Many important political actors may be beyond the reach of the court's formal powers. Although nonparties seldom refuse a judicial request to give information or to take a position, their enthusiasm may affect the thoroughness of their responses. Certain institutional actors (for example, a legislative body) may be structurally incapable of taking a position except by a slow and uncertain deliberative process.26Others, such as institutional employees, may be so numerous and unorganized as to preclude any useful formal communication.262 Even a named defendant may elect to reveal only of his position to escape summary judgment or citation for enough limits the extent contempt. The ban on ex parte communications263
paradigmof pure conflict: whatever one player gains the other must lose. A multiperson game, even if zero-sum, presents opportunitiesfor collaborationas well as conflict among players. 28 The (interchangeable) terms are Thomas Schelling's.See T. SCHELLING, supra note 25, at 89. 2' The coincidence of interests among participants in institutional reform cases is discussed at notes 142-45supra and accompanyingtext. 2" T. SCHELLING, supra note 25, at 101-02. the state legislatureto 2'1 Courtsoften use their written opinionsas a vehicle to encourage take action. See, e.g., Andersonv. Redman, 429 F. Supp. 1105, 1136 (D. Del. 1977);Wyatt v. Stickney, 344 F. Supp. 373, 377-78 (M.D. Ala. 1972), aff'd in part, remandedin part sub nom. Wyatt v. Aderholt,503 F.2d 1305(5th Cir. 1974).The wistful quality of such invitations is unmistakable. 22 Judicial frustration with the lack of cooperationfrom institutionalstaff has surfacedin severalreportedopinions.See, e.g., Holt v. Hutto, 363 F. Supp. 194, 201-02(E.D. Ark. 1973), aff'd in part, rev'din part, remandedin part sub nom. Finney v. ArkansasBd. of Correction, 505 F.2d 194 (8th Cir. 1974).
23
289 (5th Cir. 1977) (citing with implicit disapprovaluncontradictedassertionsby the defendants that membersof the monitoringcommittee had communicatedwith the district judge
ABA CODE OFJUDICIAL Canon 3(A)(4). Cf. Newman v. Alabama, 559 F.2d 283, CONDUCT
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to which players may be willing to reveal strategic positions to a judge. Consequently, the structural capacity of a court to discover the nature of actors' bargainingpositions is strongest in bargaining games dominated by individual actors within reach of the court's formal powers. 2. Time Institutional reform litigation places a premium on the participants' time. The execution of a programof systemic reformrequires an extended series of sequential bargaininggames among a shifting cast of players. Remedial orders as broad and detailed as those characteristic of the reform cases generate countless problems of interpretation and present numerous unforeseen adverse consequences.26 Even clear orders frequently encounter resistance from to or actors either external2s5 internal266 the institution. The demands that framing and administeringa decree impose on the judge are immense. Unlike an administratorwith a permanent staff to assist him, the trial judge is a lone individual whose temporal resources are strained by an already overcrowdeddocket. In response to these demands, judges frequently have appointed speThese special agents of the court cial masters or decree monitors.267 extend the judge's physical capacity to participate in the complex and time-consuming process of political negotiation. A judge as powerbroker, however, can delegate his authority only As to a limited extent.268 powerbroker,he must maintain a fairly intensive, continuing, personal involvement in the case. An independent monitor himself becomes a new actor in the political equawhose position the judge must reckon in the political calcution,269 lus. In a sociological counterpartto Heisenberg's"uncertaintyprinthe ciple,"270 very attempt to monitor a complex political process
without notifying defendants' counsel), rev'd and remanded in part on other groundsper curiamsub nom. Alabamav. Pugh, 98 S. Ct. 3057 (1978).The taboo on ex partecommunications does not always preventdirect negotiationsbetween the judge and one party. For one alleged instance, see Hain, supra note 138, at 127-28. 24 For illustrations,see D. SPILLER, supra note 117, at 69; Kirp, Buss, & Kuriloff,supra note 149, at 61-62, 68-69;Note, supra note 102, at 1375-76. 265 See D. SPILLER,supra note 117, at 58 (state legislature).
266 267
See note 251 supra.
See cases cited note 51 supra. Some courts have been content to rely on the plaintiffs and amici to assist them in the enforcementeffort. See D. SPILLER, note 117, at 72-74. supra Cf. M. HARRIS, supra note 176, at 48-49 (committee appointed by defendant to monitor progress). 268 See generally Note, Masters and Magistrates in the Federal Courts,88 HARV. L. REV. 779 (1975). 26 D. HOROWITZ, supra note 1, at 290. 270 One cannot measure simultaneouslywith perfect accuracy both the position and the
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alters that process. Other players at first view the monitor'sposition with some wariness. He representsan institution unfamilarto them, with no antecedents or obvious counterparts in their direct experience. A monitor can derive power from this uncertainty and unpredictability in the initial stages of the compliance process. In the longerrun, as the mystery is dispelled, his impact comes from other sources, chiefly from his relationship to the court. Regardlessof the limitations on his formal powers, the monitor's real power depends on the judicial support that his recommendationscan command.27' By relying heavily on the monitor for information and advice, the court can shift the distribution of effective bargainingpower in the monitor's favor. A monitor who aggressively pursues his mandate can develop access to sources of information that are unavailable He even to the defendants, or available only in distortedform.272 can assemble a more complete and accurate picture of institutional performancethan any other participant in the litigation. This information can become an independent resource used in negotiating directly with supervisorsand managerial officials as well as in maintaining the confidence of the court. Using a monitor risks incurring a potentially high cost should it undermine whatever fragile allegiances the court may have established within the administrative hierarchy.The court can modulate this danger somewhat throughits decisions regardingthe manner of appointment, formal powers, staffing, and identity of the monitor. An "inside" monitor, for example, leaves the operating manager some control over appointment and assignment of tasks, whereasan external monitoring mechanism, especially one that is heavily staffed, poses a visible threat to the agency's autonomy.27Most
velocity of a particle, for the attempt to gauge one alters the other. W. RENSE,PHYSICAL SCIENCE (1966). 327 2' See, e.g., D. SPILLER, supra note 108, at 48. 272 See generally H. KAUFMAN, ADMINISTRATIVE FEEDBACK 53-60 (1973). The defendants in Davis v. Balson, No. C73-205 (N.D. Ohio Jan. 21, 1977), discussed in 1 MENTAL DISABILITY L. REP.335 (1977), petitioned the court for unlimited access to information about the institution gathered by the compliance monitors. The court denied the motion on the rather heroic assumption that the defendants had sufficient "control" of the institution to obtain the same information directly. 73 In Newman v. Alabama, 559 F.2d 283, 288-90 (5th Cir. 1977), rev'd and remanded in part on other grounds per curiam sub nom. Alabama v. Pugh, 98 S. Ct. 3057 (1978), aff'g in part, remanding in part Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976), the court vacated an order creating a 39-member "Human Rights Committee" to oversee compliance with a prison reform decree, to which the district court had given authority to "take any action reasonably necessary to accomplish its function." 406 F. Supp. at 332. The appellate court held that the committee "did impermissibly intrude" into the daily operation of the prison. 559 F.2d at 289.
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defendants, for similar reasons, regard the power to intervene in ongoing decisions as much more offensive than a power only to An review and report on past decisions.274 aggressive, independent monitor, it is true, can assist operating officials by providing additional analytic or information-gatheringcapacity or by serving as a useful buffer between them and uncooperative executive officials. The more institutionalized the monitoring mechanism becomes, however, the more magnified is the resulting political distortion. Committees or individuals aided by full-time staffs begin to replicate problemsof delay, conflict, and distortionthat characterizethe An very process they are monitoring.275 independent monitor, in introduces a new factor into the political equation whose short, impact is very difficult to predict. Because the monitor can disrupt operations or alienate potential allies, the court must exercise extreme caution in using this device to extend the reach of its physical capacity. 3. Sanctions To be politically effective, finally, a judge must have access to power.Institutional reform,because of its sheer magnitude, requires cooperation among a multitude of actors. A successful reformer must possess a range of inducements capable of flexible, targeted, and potent application sufficient to influence a wide rangeof behavior. Most of the direct inducements available to a judge are negative-threats of painful sanctions, the most familiar and feared being civil or criminal contempt.27Nevertheless, a judge does have other methods at his disposal, such as awarding attorney's fees, excluding a named defendant from some aspect of remedial planning, closing an institution, removing an officer, or appointing a
274 For example, the court in Palmigianov. Garrahy,443 F. Supp. 956, 989 (D.R.I. 1977), authorizedthe master appointed to monitor compliancewith its decree to recommendthe court gave its review removal, transfer,or hiring of individual personnel.The Willowbrook beforethey are develpanel authority to "functionwith respect to policies at Willowbrook oped" and not merelyto review decisions after the fact. New YorkState Ass'n for Retarded Citizens v. Carey(Willowbrook case), No. 72-C-356/357 (E.D.N.Y. March8, 1976),discussed
in 1 MENTAL DISABILITY REP. 126 (1976). In Newman, on the other hand, the reviewing court L.
expresslyforbadethe judge to authorizemonitorsto "intervenein daily prison operations." Newman v. Alabama,559 F.2d 283, 290 (5th Cir. 1977),rev'dand remandedin part on other
grounds per curiam sub nom. Alabama v. Pugh, 98 S. Ct. 3057 (1978). 25 Lottman, Enforcement of Judicial Decrees: Now Comes the Hard Part, 1 MENTALDISABILITY REP. 69, 73 (1976). L. 276 See generally Cohen, The Contempt Power-The Lifeblood of the Judiciary, 2 LOY.CHI. L.J. 69 (1971); Dobbs, Contempt of Court: A Survey, 56 CORNELL REV. 183 (1971); GoldL. L. farb, The Varieties of the Contempt Power, 13 SYRACUSE REV.44 (1961).
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receiver, that present him with a range of choices for influencing conduct in desired directions. The utility of sanctions depends upon their severity and credibility.277 Certainly, all but the most desperate or defiant of defendants perceive citation for contempt or displacement of personalauthority as painful enough to overcometheir strongestresistance.278 a judge If could use these sanctions costlessly, he certainly would possess adequate poweras a political actor. Nevertheless, much to the consternation of some plaintiffs' advocates,279 judges seldom threaten and almost never impose sanctions, even in the face of protracted nonIn compliance.280 fact, the only sanction used with any frequencyin reported cases is the relatively mild and largely compensatory action of awarding plaintiffs their attorney's fees.28' Analysis of three other possible penalties-contempt, transfer of authority, and closure of the institution-indicates why these approaches often are not feasible in politicized litigation. In practice, courts seldom exercise their contempt power against governmental defendants. This reluctance probably reflects a fear of polarizingthe dispute by creating a martyr around whom disaffected groups can rally. The imputation of personal guilt inherent in the contempt citation clashes with the perception that nonpersonal and largely systemic factors cause institutional failure.282 Fura court often finds as the appropriateobject of a potential thermore, contempt order a person whose continuing cooperationis indispensable to the implementation process. Similar concerns explain the reluctance of trial judges to displace the authority of a recalcitrant official by means such as appointing a receiver,283 transferring operating author277See generally Becker, Crime and Punishment: An Economic Analysis, 76 J. POL.ECON. 168 (1968); Schwartz & Orleans, On Legal Sanctions, 34 U. Cm. L. REV.274 (1967). 278 Outright defiance of court orders in institutional reform cases is extremely rare. Even in the celebrated case of school desegregation in Boston, the school committee skirted a direct confrontation. U.S. COMM'N CIVIL ON DESEGREGATING BOSTON THE PUBLIC SCHOOLS: A RIGHTS, IN CRISIS CIVIC RESPONSIBILITY 55-56 (1975). Those who do defy judicial commands, such as leaders of illegally striking labor unions, typically are assured of overwhelming support among their major constituencies. See C. SWAYZEE, CONTEMPT COURT LABOR OF IN INJUNCTION CASES 35-37 (1968). 279 See, e.g., Lottman, supra note 275, at 72. " See note 108 supra. 2' See note 124 supra. 282 It is not always clear who is personally responsible for noncompliance. Note, The Limits of Litigation: Public Housing Site Selection and the Failure of Injunctive Relief, 122 U. PA. L. REV. 1330, 1340-41 (1974). See, e.g., D. SPILLER,supra note 108, at 44; D. SPILLER, supra note 117, at 34-36. 283 The only reported instance of receivership in a case involving structural reform of a
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not only alienates other political allies, but it also exacerbates the dislocation that reform unavoidably occasions. Some judges, moreover, may entertain doubts that a successor would behave differently, for he will be subject to the same conflicting pressuresas his predecessor. Finally, appellate courts are likely to vacate as excessively intrusive an order wholly displacing the authority of a public official because less disruptive sanctions usually are available.286 Judged by the frequency with which they threaten to close institutions, courts seem to regard this device as an effective inducement.287 Closurewould inflict on most defendants the inconvenience of having to make alternative arrangementsfor residents as well as the personal discomfort attendant to adverse publicity or diminution of authority and responsibility. It also redresses directly the violations alleged-closing the institution releases the plaintiffs from the illegal conditions of their confinement. This remedial quality gives the threat of closure further credibility. In practice, however, closing an institution would cause such serious dislocations that it is not a realistic option,288 and courts virtually never have
public institution is the celebrated receivershipof South Boston High School, upheld in Morganv. McDonough,540 F.2d 527 (lst Cir. 1976),cert. denied, 429 U.S. 1042(1977).Even in that case, the court appointedthe Superintendentof Schools as receiverto minimize the disruption of local governmentalprocesses. See Roberts, The Extent of Federal Judicial L. 55 Equitable Power:Receivershipof South Boston High School, 12 N. ENG. REV. (1976). 284 The special master'sreportin Hamilton v. Landrieu,351 F. Supp. 549 (E.D. La. 1972), proposedthis remedy, and the court adopted it. See note 198supra. The orderedtransferof jurisdictionwas never carriedout. D. SPILLER, supra note 108, at 11. 285 In Barnes v. Virgin Islands, 415 F. Supp. 1218, 1231 (D.V.I. 1976), the judge "recommended" removalof the acting wardenand the acting captain of a VirginIslands the prison, warning that he would cease sentencing convicted defendants to that prison if the "recommendation" werenot adoptedwithin 10 days. In Lancev. Plummer,353 F.2d 585 (5th Cir. 1965),a federalcourtof appeals upheld an orderremovinga volunteer,unsalarieddeputy sheriff from his office until he satisfied the court that he no longerwould violate the court order. See Holt v. Hutto, 363 F. Supp. 194, 217 (E.D. Ark. 1973) (including "dischargeof offendingemployees"in an enumerationof potential sanctions for noncompliance),aff'd in part, rev'd in part, remanded in part sub nom. Finney v. ArkansasBd. of Correction,505 F.2d 194 (8th Cir. 1974). 286 See Newman v. Alabama, 559 F. Supp. 283, 288 (5th Cir. 1977) ("federalcourts have no authority to address state officials out of office or to fire state employeesor to take over the performance their functions") (dictum). See also Nagel, supra note 15, at 721-22. of 287 See, e.g., Pugh v. Locke,406 F. Supp. 318, 331 (M.D. Ala. 1976),aff'd in part, remanded in part on other groundssub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977),rev'd and remandedin part on other groundsper curiam sub nom. Alabama v. Pugh, 98 S. Ct. 3057 (1978); Rhem v. Malcolm, 377 F. Supp. 995, 999 (S.D.N.Y. 1974), aff'd in part, remanded in part, 507 F.2d 333 (2d Cir. 1974). Cf. Holt v. Hutto, 363 F. Supp. 194, 217 (E.D. Ark. 1973) (closing the prison is "the ultimate sanction"), aff'd in part, rev'd in part, remandedin part sub nom. Finneyv. ArkansasBd. of Correction, F.2d 194 (8th Cir. 1974). 505
288
ity,284or removing him outright.285Displacement of a central figure
Frug, supra note 15, at 728-29, 792.
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ordered it.289Selective closure, involving particular facilities or or buildings290 enjoining further admissions,29'is a more realistic threat, but the prospect that officials simply will reassign residents to other equally deplorable settings diminishes its utility.292 In consideringwhat sanctions to use, a judge faces a classic strategic dilemma in bargaininggames: whetherand how to use a threat of mutually disadvantageous action as an inducement to action.2"'9 On the one hand, the threatening party must appear committed to carrying out the threat. Still, he would like to maintain enough flexibility to avoid taking mutually damaging action if the threat fails in its objective. Courts typically have avoided making threats that bind them to taking an unattractive future course of action. Fear of losing credibility from not carryingout the threat has outweighed concern for the effectiveness of the threat itself. Judges instead have maintained an almost studied ambiguity, merely hintIn ing at possibilities.294 theory, the equivocal threat is useful in A bargaining, but only to create the appearance of irrationality.295 madman's threat is convincing precisely because his opponent cannot be sure that he will not pursue a mutually damaging course of
289 In at least one instance, however,a judge orderedpretrialdetainees released because the conditionsof their confinementwereso offensive.See Curleyv. Gonzalez,Civ. Nos. 8372,
8373 (D.N.M. Feb. 13, 1970), discussed in Turner, Establishing the Rule of Law in Prisons: A Manual for Prisoners' Rights Litigation, 23 STAN.L. REV.473, 476 (1971).
290
See, e.g., Gates v. Collier,407 F. Supp. 1117, 1122 (N.D. Miss. 1975);Moralesv. Tur-
man, 383 F. Supp. 53, 121 (E.D. Tex. 1974), rev'd and remanded on other grounds, 535 F.2d 864 (5th Cir. 1976), rev'd and remanded on other grounds per curiam, 430 U.S. 322 (1977).
291 See, e.g., Rhem v. Malcolm, 507 F.2d 333, 341 (2d Cir. 1974). Population limits, very frequentlyincluded in remedial decrees, see note 47 supra, can have a comparableeffect. Because of the potential adverseimpact on public safety, courtsdo not alwaysenforceorders
to reduce inmate populations. See, e.g., D. SPILLER, supra note 108, at 9-10, 34.
292 The Rhem case illustratesthe futility of closing an institution. In responseto the initial orders, Rhem v. Malcolm, 371 F. Supp. 594 (S.D.N.Y.), order entered, 377 F. Supp. 995 (S.D.N.Y.), aff'd in part, remandedin part, 507 F.2d 333 (2d Cir. 1974),New YorkCity closed the "Tombs," its main prison, and transferredmost of its detainees to RikersIsland. This action triggereda new roundof hearingsand ordersrequiringwholesalereformof conditions there. See Rhem v. Malcolm, 389 F. Supp. 964 (S.D.N.Y.), amended, 396 F. Supp. 1195 (S.D.N.Y.), aff'dper curiam,527 F.2d 1041(2d Cir. 1975).The courtrebuffedthe city's recent proposalto reopenthe Tombs. See Rhem v. Malcolm, 432 F. Supp. 769 (S.D.N.Y. 1977).
293 See
T. SCHELLING, supra note 25, at 35-43, 123-31.
A good example is Holt v. Hutto, 363 F. Supp. 194, 217 (E.D. Ark. 1973),aff'd in part, rev'd in part, remandedsub nom. Finney v. ArkansasBd. of Correction,505 F.2d 194 (8th Cir. 1974), in which the court listed four sanctions available to it and expressedthe "hope" that none need be invoked.Reservingrulingson plaintiffs'motionsforcoerciveordersenables a courtto maintaina useful tension. See, e.g., Wyatt v. Stickney,344F. Supp. 373, 377 (M.D. Ala. 1972) (reservingrulingson plaintiff's motion orderinga reallocationof the state budget and the sale of public lands as methods of raisingfunds for remedialimplementation),aff'd
24
in part, remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). T. 215 SCHELLING, supra note 25, at 17-18.
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action. Nevertheless, howeveruncertain we may be of the range and accuracy of judicial weapons, we expect, instinctively, that judges will not act like madmen. Indeed, the judge is the paradigmatic institutional symbol of rationality. The historical failure of judges to impose harsh sanctions even in the face of protractednoncompliance stands as convincing evidence that they will not do so in the future. C. A Philosophical Dilemma The instrumentalist defense of the role of judicial powerbroker poses a conceptual dilemma. The capacity of the judiciary to achieve results through extrajudicial political processes rests, ultimately, on its legitimacy as a social institution. Judicial action will have no impact upon the stakes, the positions, and the behavior of players in political bargaininggames unless that action has credibility. The legitimacy of the judiciary derives from many sources. In a those who pronouncethe law highly legalized society such as ours,296 command a high degree of public respect.297 The trappings of the office-the title, the long (in federal courts, lifetime) tenure, the ritual of the courtroom-both reflect and transmit the judge's revered position. Primarily, however, the credibility of the judiciary derives from perceptions about the judicial process itself-a uniquely reflective, dispassionate, considered process in a world of heated and hasty judgments.298 judge's decisions, in this view, will A command obedience and respect only to the extent that he maintains a posture of strict impartiality.299
296 See
CONTEMP. PROB.69, 77-92 (1970).

28
27 Miller, Public Confidencein the Judiciary: Some Notes and Reflections, 35 LAW & See McMillan, Social Science and the District Court:The Observations a Journeyof
generally J. SHKLAR,LEGALISM (1964).
GeoffreyC. Hazardhave commentedthat the divisionof functionsbetweenpartiesand judge representstwo judgments:(1) that truth is morelikely to emergefrombilateralinvestigation and presentation,motivated by the strongpull of self-interest,than fromjudicial investigation motivated only by official duty; and (2) that the moral force and acceptabilityof a decision will be greatestwhereit is made by one who does not have, and does not appearto have, the kind of psychologicalcommitmentto the result that is implied in initiating and conductingthe presentationof a case. F. JAMES G. HAZARD, note 17, ? 1.2, at 5 (footnoteomitted). Activejudicial participa& supra tion undermines popular respect for decisions-and thus makes enforcementmore difficult-in two related ways: directly, by giving the appearanceof bias, and indirectly, by tipping the balance in the factfindingprocessin favor of one side, which makes the factual conclusionsuspect.
man Trial Judge, LAW& CONTEMP. PROB.,Winter 1975, at 157, 158-59. 29 See S. GOLDMAN T. & JAHNIGE, supra note 114, at 34, 190. Professors Fleming James and
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One might reply, however,that the preservationof judicial legitimacy demands neutrality and objectivity only at the violation stage, not at the remedial stage. Once a judge has found a violation of law, he is permitted-indeed, expected-to become an advocate for its correction. This argument implicitly treats the adjudicative and the political models as if they were mantles that a judge may don or shed at the appropriate moment. Roles so divergent, however, are not interchanged so easily. A manipulative posture, once assumed, is not readily confined. As suggested above,:""' possibilities for political manipulation arise at the earliest stages of litigation. An attempt to calculate the political impact of remedial actions easily can reach back and infect the determination of liability.:"" Indeed, the very distinction between the liability and the remedial stages of litigation is an adjudicative conceit. In the political bargaining model, there is no clean separation between diagnosis and cure, only a continuous, shifting interaction of competing partisan forces. The very adoption of a political perspective can begin to blur the distinction between right and remedy on which adjudicative legitimacy rests. If this assessment is correct, the very source of the judge's political power is, ultimately, its limitation. A judge's actions must conform to that narrowband of conduct considered appropriatefor so antimajoritarian an institution.302Whenever a court appears to manipulate the rules of litigation for the attainment of social outThe comes, its authority wanes.303 efficacy of the powerbroker's role, then, depends on its invisibility. The very credibility necessary for successful political intervention requiressuppression of the character of that intervention. Only if courts can couch their undeniably political actions in the properguise of adjudication can their transformed role hope to be effective. Courtscan preservethe necessary appearanceof objectivity in the
See notes 119-21 supra and accompanying text. See pp. 79-82 supra. 02 A. Cox, THE ROLE OFTHESUPREME COURT AMERICAN IN GOVERNMENT 103-07 (1976). For discussions of the antimajoritarian nature of the judiciary, see A. BICKEL, LEAST THE DANGEROUSBRANCH: THE SUPREME COURT THEBAROFPOLITICS AT 16-18 (1962); H. WECHSLER, supra note 223, at 27. Some have argued in response that the other branches of government, including that symbol of popular representation, the legislature, are far less representative in fact than often assumed. Denvir, supra note 13, at 1153-55. See also Rostow, The Democratic Character of Judicial Review, 66 HARV. REV. 193 (1952). L. 303 A. Cox, supra note 302, at 107 (pointing out the "vice of substituting a manipulative for a moral view of the judge's role").
300 30'
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short run. A judge can rely on third-party mechanisms, such as masters and monitors, to perform the most explicitly "political" tasks-conducting investigations, mediating disputes, aggressively pushing settlement, summarily resolving low-level controversies, and mobilizing public opinion. He can maintain steadfastly that the defendants' obligation to achieve ultimate compliance is absolute and unconditional, despite delays caused by practical obstacles. In the longer run, however, his capacity to disguise a political role is limited. If parties resist the activities of third-party mechanisms, the judge must act personally, either by endorsing the "extrajudicial"political behaviorof his agent or by renouncingsuch behavior, perhaps reducing its efficacy. If the court tolerates delays or failures to comply, it gradually undermines its political credibility. Unless the judge can reconcile political manipulation with the popular respect that gives the courts their credibility, the role of is powerbroker but a fleeting phenomenon,its rise triggeringits own demise. Legitimacy, to be sure, is not a static concept: changes in social institutions, by transforming popular expectations, can validate themselves. Professor Owen M. Fiss optimistically has concluded his defense of the "structural"injunction by asserting that "courts have a unique capacity to create the terms of their own legitimacy."304The political role trades in the very currency-"sanctioned expectation"305-on which institutional legitimacy rests. Nevertheless, the opposite result may be equally likely. Courts also may have a unique capacity to destroy their legitimacy. Perhaps the greatest risk in the political role is its encouragement of an instrumentalist concept of the judicial role. The judge acting as political powerbroker confirmsthe "realist"dogma that one must measurejudicial action not by the integrity of the principle enunciated but by its impact on social outcomes.306 political model of The litigation may be a more effective means of accomplishing reform than the adjudicative model. Still, judged by the terms it sets for itself, as embodied in the ringing pronouncementsof a finding of liability and the mandatory language of a remedial decree, institutional reform litigation almost invariably must fall far short of its goal. By implicitly inviting an instrumentalist assessment, the political role may destroy the very basis for its claim to legitimacy.
3040. Fiss, THE CIVIL RIGHTS INJUNCTION (1978). 95 H. LASSWELL, POWER ANDPERSONALITY(1948) (definingpolitical power). 14 3U See Linde, Judges, Critics and the Realist Tradition, 82 YALE L.J. 227, 229 (1972).
305 See
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V. CONCLUSION
[Vol. 65:43
Litigation is a social institution inherently dichotomous in nature-it is at once a process for authoritative adjudication of legal disputes and a vehicle for partisan manipulation of bargainingadvantage. The balance struck between these roles traditionally has favored adherence to adjudicative ideals. Modern litigants, however, increasingly have invited litigation to performtasks demanding fuller exploitation of its political potential. The use of litigation as an instrument for systemic organizationalchange, in particular, demands a breadth of understanding, a range of inducements, and a capacity for continuous adjustment not easily accommodated to the adjudicative ideal. The enormity and complexity of such an undertaking have created unprecedentedpressureson judges to abandon their historical positions as neutral arbiters and to assume the manipulative role of The conventions of litigation present the judge with powerbrokers. many opportunitiesto influence allocation of bargainingadvantages among the parties before him. Decisions he makes-the specificity of his orders, his choice of proceduresfor planning remedies, which parties he allows or orders to be joined-unavoidably have an impact on the structure and the agenda, and thus the outcome, of subsequent political games. Having opportunitiesto play the role of powerbroker however, is, only a necessary, not a sufficient, condition for its successful use. The judge also must possess the knowledge,the time, and the power demanded by such a role. Structural characteristicsof the judicial position place inherent limitations on the judge's capacity to gather political intelligence, to oversee a protracted, complex process of adjustment, and to induce desired shifts in individual behavior. More important, as the political nature of judicial behaviorin institutional reform litigation becomes more apparent, courts can draw less and less on the reserve of authority that the reveredposition of neutral lawgiver confers. The legitimacy that the adjudicatory model bestows on the judge unavoidably is at odds with his using his power to achieve political ends. Only if a simultaneous and fundamental transformationoccurs in the popular view of the judiciary can judges long sustain the efficacy of their new role as powerbrokers.

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The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions Author(s): Colin S.

THE JUDGE AS POLITICALPOWERBROKER: SUPERINTENDING STRUCTURALCHANGE IN PUBLIC INSTITUTIONS Colin S. Diver*

STRUCTURAL LIMITATIONS A POLITICAL ON JUDICIARY .....

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(1975).For a notable exampleof the breadthand detail of one such decree,

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See generally D. BRAYBROOKE C. LINDBLOM,A STRATEGY DECISION(1963); Lindblom, & OF

has contributedvaluable insights into the operationof political bargainingprocesses.Two

zational Relationships,5 AD.Sci. Q. 583 (1961).

See notes 200-01infra and accompanyingtext.

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C.R.Mentally Disabled: The Need for Realistic Standardsand ObjectiveCriteria,8 HARV.

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MONITORING THE IMPACTS PRISON AND PAROLESERVICES:AN INITIAL OF EXAMINATION (1977); R.

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sources for rehabilitation services and an improved living environment.7'

SHARAF, & E. STONE, DYNAMICSOF INSTITUTIONAL CHANGE: THE HOSPITALIN TRANSITION62-

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they assume "formal"

See, e.g., Bennis, Theoryand Methodin ApplyingBehavioralScience to Planned Organ-

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On a numberof occasions,courtshave awardedattorney'sfees to plaintiffsas a sanction

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tive, and Administrative Competence in Setting Institutional Standards, in THE MENTALLY

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See generally ABA CODE JUDICIAL OF CONDUCT Canon 3(A)(1).

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presumptionof psychiatricexpertise in civil commitmentdecisions).

See notes 72-74 supra and accompanying text.

able to individual decisionmakersabout the patterns of preferencein the group," and it

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See notes 244-46 infra and accompanying text.

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The image of the judge as political powerbroker portrayed in the

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The Effectiveness of the Judge as Powerbroker

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Johnson, supra note 10, at 905.

Judges as Powerbrokers B. The Judge's Resources and Tools

Social Science Evidence: An Annotated Guide, LAW& CONTEMP. PROB.,Winter 1975, at 50

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See note 251 supra.

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ity,284or removing him outright.285Displacement of a central figure

Frug, supra note 15, at 728-29, 792.

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T. SCHELLING, supra note 25, at 35-43, 123-31.

CONTEMP. PROB.69, 77-92 (1970).

generally J. SHKLAR,LEGALISM (1964).

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