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117 Harv. L. Rev. 1016 (2003-2004)
Destabilization Rights: How Public Law Litigation Succeeds

handle is hein.journals/hlr117 and id is 1044 raw text is: DESTABILIZATION RIGHTS: HOW PUBLIC LAW LITIGATION SUCCEEDS Charles F. Sabel and William H. Simon* Public law litigation - civil rights advocacy seeking to restructure public agencies - has changed course over the last three decades. It has moved away from remedial intervention modeled on command-and-control bureaucracy toward a kind of intervention that can be called experimentalist. Instead of top-down, fixed-rule regimes, the experimentalist approach emphasizes ongoing stakeholder negotiation, continuously revised performance measures, and transparency. Experimentalism is evident in all the principal areas of public law intervention - schools, mental health institutions, prisons, police, and public housing. This development has been substan- tially unanticipated and unnoticed by both advocates and critics of public law litigation. In this Article, we describe the emergence of the experimentalist model and argue that it moots many common criticisms of public law litigation. We further suggest that it implies answers to some prominent doctrinal issues, including the limits on judicial discretion in enforcing public law rights and the constraints entailed by separation-of- powers norms. Our interpretation understands public law cases as core instances of destabilization rights - rights to disentrench an institution that has systematically failed to meet its obligations and remained immune to traditional forces of political correction. It suggests reasons why judicial recognition and enforcement of such rights might be both effective in inducing better compliance with legal obligations and consistent with our structure of government. I. INTRODUCTION S corned when not forgotten, yet transformed by its travails, public law litigation is becoming - again - an influential and promising instrument of democratic accountability. In 1976 Abram Chayes argued that efforts to apply rule-of-law principles to the institutions of the modern welfare state had produced a new kind of litigation.1 The traditional lawsuit involved two pri- vate parties and focused on allegations of a discrete past wrong imply- ing a particular remedy, most often a one-time money payment from the defendant to the plaintiff. Chayes showed that an important cate- gory of civil rights litigation departed radically from this model. These * Maurice T. Moore Professor of Law and Arthur Levitt Professor of Law, respectively, Co- lumbia University. We are grateful for various kinds of help to the Hewlett Foundation; to par- ticipants in workshops at Columbia, Pennsylvania, Stanford, and Yale; and to Jim Liebman, Mike Dorf, Brad Karkkainen, Archon Fung, Dara O'Rourke, Margo Schlanger, Michael Rebell, Gillian Metzger, Judith Resnik, Mark TIshnet, Susan Sturm, John Boston, Jonathan Chasin, and the practitioners cited in the notes who spoke to us about their work. Our largest debt is to Laura Faer for insightful discussion and prodigious research assistance. I See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV L. REV. 1281, 1284, 1288-89 (1976). ioi6

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