NCPA - National Center for Policy Analysis

Institutional Reform Litigation Harming Democracy

January 3, 2003

In "Democracy by Decree" (Yale University Press), authors Ross Sandler and David Schoenbrod critique astonishing efforts to govern society through what they call "institutional reform litigation."

Here is a sketch of the process:

  • Congress passes a law with sweeping but vague guarantees.
  • A crusading lawyer finds a public institution -- a hospital, a prison or perhaps a child-welfare agency that he thinks is not fulfilling its responsibilities as the law requires.
  • He locates a group of individuals willing to say they have been harmed by the institution's negligence.
  • Wishing to avoid court at all costs, public officials settle such cases by entering into consent decrees -- which in effect set public policy -- often, but not always, bad public policy.

Through a series of examples, the authors demonstrate how the powers of elected officials "are eroded in favor of a negotiating process between plaintiffs' attorneys, various court appointed functionaries and lower echelon officials" who work behind closed doors.

For example, a suit by prisoners in Philadelphia -- claiming inmate overcrowding -- led to a 1986 consent decree that limited the number of prisoners who could be held in the city's jails.

The subsequent release of prisoners in response to the decree led to a horrendous crime wave, involving thousands of thefts, rapes, robberies, murders and assaults.

Source: Thomas J. Main (Baruch College), "Bookshelf: Closed Doors, Open Season," Wall Street Journal, December 31, 2002.

For text: (WSJ subscription required),,SB1041303871450180193-search,00.html


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