Institutional Litigation

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"Institutional litigation" refers to cases in which the courts, responding to allegations that conditions in some institutions violate the Constitution or civil rights statutes, become involved in supervising the institutions in question. Loosely used, the term might describe any number of lawsuits, ranging from an assertion of discriminatory employment practices in a corporation to an attack by inmates on the conditions at a state prison. What such apparently diverse cases have in common is the possibility that if the plaintiffs convince the court that a violation of the law has occurred and if the institution proves recalcitrant in remedying the violation, the court may become involved in detailed supervision of the institution over long periods. Though details of such complex suits naturally vary widely, it is the combination of continuous judicial scrutiny and detailed substantive involvement that has characterized institutional litigation.

Laws such as those forbidding discrimination in employment apply to both public and private institutions. Many constitutional provisions, however, guarantee rights only against the government and most institutions to which individuals are involuntarily committed are run by the government. Consequently most of the institutions involved have been public: prisons, mental hospitals, school systems, and the like. Moreover, though the Constitution binds both state and federal courts, the latter tribunals have played the most active role in vindicating constitutional rights. The typical institutional case therefore has involved a federal district court supervising the conduct of a state institution, a setting that has raised constitutional concerns beyond those of the particular substantive law of the case.

From a wide perspective one can trace the roots of institutional litigation to earlier classes of cases: nineteenth-century equity receiverships, bankruptcy reorganizations, antitrust decrees requiring the restructuring of a large industry, even to the efforts of fifteenth-century English chancellors to enforce the duties of trustees to establish and supervise the religious and charitable institutions endowed in a will. Modern institutional cases also have more recent origins in the efforts of the federal judiciary to desegregate schools in the 1950s and 1960s. Resistance to simple desegregation decrees forced federal courts to become involved in many details of local school administration. As some school boards adjusted their strategies for resistance, courts delved deeper into school board practices, to the point of displacing some traditional school board functions. In griffin v. school board of prince edward county (1964) the Supreme Court even suggested that a federal court could order taxes imposed to raise funds to finance a public school system that officials had closed to avoid desegregation.

At about the same time courts were articulating other constitutional rights, including constitutional limitations on prison and mental hospital conditions. In cases such as Wyatt v. Stickney (1971) and Holt v. Sarver (1969) lower federal courts combined the procedural aggressiveness of the school desegregation cases with the newly developed constitutional rights, enforcing their decrees against recalcitrant officials with injunctions backed by the force of the contempt power. In dozens of institutional cases in the 1970s these same forces triggered widespread court-ordered institutional reform that covered such details of institutional life as cell size, visiting hours, telephone privileges, hygiene, and disciplinary procedures.

Describing institutional litigation and tracing its origins are easier than isolating, much less resolving, the controversies that surround it. Nearly all the issues that arise in public discourse about a federal system and an independent judiciary eventually appear in some discussion of institutional litigation. Perhaps the most central of these issues are questions about the relationship of institutional litigation to (1) the nature of litigation; (2) the judicial capacity to run institutions; (3) the power of the purse; and (4) federalism.

Some view institutional cases as a form of litigation previously unknown to Anglo-American jurisprudence. In the contrasted traditional vision of litigation, a lawsuit involves two parties who present an isolatable set of facts to a court, which issues a judgment; the losing party complies with the court's decree, and judicial involvement with the case ends. To the extent that this statement of traditional litigation is accurate, institutional litigation involves a substantial departure. In institutional litigation the set of facts presented to the court often constitutes all of the physical, psychological, and social conditions within the institution. Such widespread allegations prevent the court from addressing any single dispute which, when resolved, will restore the parties to a proper relationship. In several institutional cases, no matter how many disputes the court resolves, additional issues arise with respect to implementation of and compliance with previous orders.

The frequency with which institutional litigation requires courts to address some aspect of institutional life highlights the second central issue—judicial capacity to supervise large public institutions. By training, judges are neither wardens nor hospital administrators. Some critics question whether judges should substitute their judgment about institutional life for that of professional administrators appointed by elected officials. Courts often try to compensate for their inexperience by appointing special masters and expert advisory panels and by seeking the views of the defendant administrators. But these tactics may raise further questions about institutional litigation's departure from traditional ideas about litigation. Yet, once a court has concluded that institutional life is constitutionally deficient because of the acts of the regular administrators, it is difficult for courts simply to defer to the judgment of those same persons found to be responsible for the unconstitutional conditions.

In many cases, however, institutional conditions are constitutionally deficient less because of the acts of administrators than because the state has allocated insufficient funds to institutional budgets. Even willing administrators experience difficulty in upgrading conditions at some institutions. A new prison building may be necessary or more staff may need to be hired. When institutional reform may be accomplished only through expenditures of substantial sums, a new issue arises: may courts order the allocation of public funds against the wishes of legislators who presumably reflect their constituents' wishes?

For many observers, this fiscal confrontation reveals the least palatable aspect of institutional litigation—the antimajoritarian judicial usurpation of legislative and executive authority. Courts, self-conscious about express allocative decision making, sometimes disavow authority to order funds raised to carry out institutional reform. And, despite Griffin 's obiter dictum about imposing taxes, there is doubt about how far courts may and ought to go in ordering funds raised to satisfy their orders. Yet it is also a commonplace for courts to state that lack of funds is no excuse for failure to comply with the Constitution. Since any public law decision may have important fiscal effects, perhaps institutional cases have been unjustifiably isolated from the rest of the public litigation on this issue. Indeed, if one assumes that, put to the choice between releasing inmates and rectifying the conditions of their institutional confinement, the public and their elected officials would choose the latter, judicially decreed funding may be more in accord with the majority's wishes than any other course of action.

Ironically, institutional cases flourished during the 1970s, while the Supreme Court was emphasizing that federal courts should not interfere with traditional state or local functions. In rizzo v. goode (1976) and O' shea v. littleton (1974) the Court rejected systemic attacks on, respectively, a police department and a city's system of criminal justice. In younger v. harris (1971) and its progeny the Court established prohibitions on federal court interference with state adjudicative proceedings. As a doctrinal matter, the issues in most institutional cases proved distinguishable from the issues in Rizzo, O'Shea, and Younger. Nevertheless the Court's federalism theme could have been viewed as requiring curtailment of judicial receptivity to institutional litigation. Yet during this period of growing deference to states, the lower federal courts, without Supreme Court disapproval, continued to hear and resolve institutional cases.

Theodore Eisenberg

Stephen C. Yeazell


Chayes, Abram 1976 The Role of the Judge in Public Law Litigation. Harvard Law Review 89:1281–1316.

Diver, Colin S. 1979 The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions. Virginia Law Review 65:43–106.

Eisenberg, Theodore and Yeazell, Stephen C. 1980 The Ordinary and the Extraordinary in Institutional Litigation. Harvard Law Review 93:465–517.

Fiss, Owen M. 1979 The Supreme Court 1978 Term, Foreword: The Forms of Justice. Harvard Law Review 93:1–58.

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Institutional Litigation

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Institutional Litigation