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1983 Duke L.J. 1265 (1983)
Decreeing Organizational Change: Judicial Supervision of Public Institutions

handle is hein.journals/duklr1983 and id is 1279 raw text is: DECREEING ORGANIZATIONAL CHANGE: JUDICIAL SUPERVISION OF PUBLIC INSTITUTIONS* DONALD L. HOROWITZ** In the lastfifteen years or so, courts have issued a small but signifi- cant number of decrees requiring that governmental bodies reorganize themselves so that their behavior will comport with certain legal stan- dards. Such decrees, addressed to school systems, prison and mental hospital officials, welfare administrators, andpublic housing authorities, insert trial courts in the ongoing business ofpublic administration. In this article, Professor Horowitz traces the origins, characteristics, and consequences of organizational change decrees. He finds their roots in an unusually fluid and indeterminate system ofproceduralforms and legal rules, a system hospitable to the impact of changing ideas about theperformance of bureaucracy and the role of courts. He explores the problematic character of organizational change litigation, underscoring the ways in which organizational behavior is fraught with a variety of informal relationshps beyond the contemplation of the courts. In Pro- fessor Horowitz'sjudgment, efforts to augment the capacity of courts to cope more effectively with organizational change litigation may redound to the disadvantage of thejudicialprocess by emphasizing the new man- agerial role of the courts at the expense of their traditional moralfunc- tion. He concludes by suggesting that capricious budgetary ramifications, unintended consequences, and the impact of unconven- tional enforcement practices on the courts themselves be included among the elements of a full evaluation of organizational change litigation. A century and a half ago, Alexis de Tocqueville wrote that in the United States the language of the law is a vulgar tongue. By that he meant simply that American culture was so peculiarly suffused with legalism that the whole people was accustomed to discoursing in le- gal terms.1 It is not surprising that such a people should experience * Copyright © 1983 by Donald L. Horowitz ** Professor of Law, Duke University School of Law. This article is a revised version of a paper presented at the Twelfth Annual Chief Justice Earl Warren Conference on Advocacy, sponsored by the Roscoe Pound-American Trial Lawyers Foundation, in Charlottesville, Virginia, in June 1983. A somewhat different version will appear in a volume of conference papers to be published by the Foundation under the title SEPARATION OF PowERs. The author is indebted to the Foundation for its hospitality and support in making the paper and the article possible. 1. A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 12 (1945 ed.). 1265

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