About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

78 Iowa L. Rev. 965 (1992-1993)
The Allure of Individualism

handle is hein.journals/ilr78 and id is 977 raw text is: The Allure of Individualism Owen M. Fiss* The civil rights injunction takes many forms, but none as significant as the structural injunction: the formal medium through which the judiciary seeks to reorganize ongoing bureaucratic organizations so as to bring them into conformity with the Constitution. The structural injunction represents the most distinctive contribution to our remedial jurisprudence drawn from the civil rights experience, and though the structural injunction has been used in all manner of cases-housing, mental health, and prisons-its origins in civil rights litigation are never forgotten. The structural injunc- tion received its most authoritative formulation in civil rights cases, specifically those involving school desegregation, and has been legitimated in terms of those cases. Required to defend structural relief, reference will always be made to Brown v. Board of Education' and the duty it imposed on the courts of the nation to transform dual school systems into constitution- ally acceptable forms. The fate of the structural injunction has also been tied to that of the civil rights movement. The remedy grew in power and scope over a twenty-year period, beginning in 1954 and continuing until 1974. Ever since, it has been under attack. William Rehnquist has led the assault, first as Associate Justice and later as Chief Justice. He sees the structural injunction as the epitome of Warren Court activism and appears deter- mined to curb that remedy in all manner of ways. Now and then, a narrow majority of the Court has managed to defeat his purposes-here I am thinking especially of the Chicago public housing,2 Kansas City school desegregation,3 and Arkansas prison4 cases-but the formation of such coalitions has been the exception. The structural injunction has suffered many defeats over the last twenty years and has been confined and enfeebled by a plethora of devices. *Sterling Professor of Law, Yale University. This paper was originally presented on January 9, 1993, at the annual meeting of the Remedies Section of the American Association of Law Schools, entitled Public Law Remedies in the Nineties: The Rehnquist Court's War on the Civil Rights Injunction. I greatly benefitted from the discussion that followed my presenta- tion, and I wish to thank the many persons who attended the meeting and participated in the discussion. A special thanks is owed to Peter Shane, who organized the meeting and chaired it with great style and grace, and to Douglas Laycock and Susan Sturm, the commentators who paid a former teacher the highest of all compliments-brilliantly and passionately disagreeing with almost all I had to say. It was quite an event. I also wish to acknowledge the splendid research and editorial assistance of Christopher Kutz and Kevin Russell. 1. 347 U.S. 483 (1954); 349 U.S. 294 (1955). 2. Hills v. Gautreaux, 425 U.S. 284 (1976). 3. Missouri v. Jenkins, 495 U.S. 33 (1990). 4. Hutto v. Finney, 437 U.S. 678 (1978). 965

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most