Public Law Litigation

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The warren court initiated wholesale changes in American constitutional law. Legal apartheid was dismantled. The bulk of the bill of rights was decreed enforceable against the states. Orchestrated public school prayer was ended. Legislatures were forced to undergo reapportionment. Prison conditions were scrutinized. freedom of speech was bolstered and made meaningful. administrative agency action was rendered more easily reviewable. Access to the judicial process was expanded. And constitutionalism gained an enhanced role in the political life of the nation.

At the same time, although relatively few people noticed it, the nature of the federal litigation process began to change. Private rights were no longer the sole currency of the judicial system. The cascade of newly recognized constitutional interests and the expanded review of administrative decisionmaking allowed by the courts opened the door to much litigation based on widely shared public values and interests. No doubt, most lawsuits continued to turn exclusively upon the competing claims of private interests. But the dramatic new acceptance of what scholars came to characterize as "public law litigation" worked to alter substantially the operation of American courts. That change will very likely remain with us, even as the Supreme Court turns in different ideological directions to reformulate substantive constitutional principles and to match its decisionmaking with the demands of the day.

Consider the contrasts. The common law system of litigation is dominantly tied to the protection of private rights and interests. Disputes typically arise between private parties and are circumscribed by their competing claims. The litigants initiate and control its boundaries. The contested terrain concerns the rights and duties that these parties may be said to owe to each other. Courts function principally to resolve the proffered dispute, and judges act as neutral arbiters in weighing the claims. Litigation is accurately described as "bipolar"—with the parties engaged in a confrontational, winner-take-all contest. The process is, generally speaking, retrospective, designed to determine the legal significance of a fairly discrete set of past events. The remedy is intricately linked to the measurement and the determination of the legal right that provides the basis for the claim. The lawsuit is largely self-contained, its impact intended to be limited to the parties before the tribunal. Most often, judicial involvement ends with the issuance of the decree.

Public law litigation takes a decidedly different cast. The subject matter of the litigation typically concerns a dispute about the conduct of government policy—policy that likely affects not only the plaintiffs, but many others as well. The party structure is apt to be broader, and possibly more amorphous. The basis for the claim, of course, remains the assertion of deprivation of a legal right. But the focus of the attention, and of the remedy, is more likely prospective than compensatory. Litigants attempt to force the government to change its behavior, and the claims are designed to have impact well beyond the parties to the litigation. The demand for prospective, curative relief also typically entails continuing involvement or monitoring by the court. The role of the judge is altered accordingly. Public law litigation requires an active, initiating trial judge, organizing the litigation and supervising the effectiveness of the relief ordered.

Not surprisingly, perhaps, public law litigation has presented its own challenges.

First, since public claims are based on interests that are typically not the exclusive province of any one person, determining who will be allowed to bring such suits is, at the least, complex. Common law disputes typically explore whether the plaintiff is entitled to compensatory relief from a particular defendant. Lawsuits involving the validity of government policies, however, have more often involved diffuse and intangible interests: Should a legislature be apportioned more fairly? Should an environmental practice be changed to afford greater protection to natural resources? The license to bring such actions triggers an exercise of judicial authority that may well work to refashion government policy. Determining, therefore, who has standing to employ the judicial process has proved to be a thorny problem.

Similarly, public law litigation implicates substantial questions concerning the ability of the plaintiff appropriately to represent the interests inevitably affected by the litigation. A relatively small stake in a larger dispute may be enough to call into play an overarching use of the judicial power. As a result, traditional notions of client control and the demand that a class of litigants be tied to the fortunes of a particular member seem less relevant in a multifaceted public policy dispute in which the actual named plaintiff may have relatively little role in the proceedings. Here, to many, the courts' responses have proven unsatisfactory.

Even more starkly, public law litigation has pushed traditional notions of the federal courts' remedial powers. Declaring that the separate but equal doctrine had no place in public education proved to be only a first step in the process of desegregation. Innovative and hugely controversial remedies became necessary, however, if the asserted rights were to be meaningful protected. Reapportionment and prison cases similarly broke with traditional remedial patterns. Federal judges became managers, supervisors, magistrates, special masters, and overburdened administrators—frequently against their apparent preferences. The common law notion of the judge as passive referee seemed to become a quaint and distant memory.

Surely, the greatest question presented by the growth of public law litigation has been the most basic one—is it consistent with the limited role for the judiciary in a system marked by separation of powers ? To the extent that such cases are seen to vindicate the public interest rather than settle circumscribed private claims, they pose tensions not only with tradition but with perceived bases of judicial authority and legitimacy as well. Because judges are neither elected nor directly accountable to the people, extensive judicial policymaking powers present tough questions of constitutional theory. Nor is it clear that courts are well equipped to deal with such complex and value-laden controversies. There seems little doubt, however, that judges, especially federal judges, will continue to be seen as essential partners with the other branches of government in enforcing our public values. As alexis de tocqueville observed, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one."

Gene R. Nichol

(see also: Constitutional History, 1950–1959; Constitutional History, 1960–1969; Courts and Social Change; Institutional Litigation.)


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

——1982 The Supreme Court, 1981 Term—Foreword: Public Law Litigation and the Burger Court. Harvard Law Review 96:4–60.

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

Nichol, Gene R., Jr. 1984 Rethinking Standing. California Law Review 72:68–102.

——1986 Injury and the Disintegration of Article III. California Law Review 74:1915–1950.

Scalia, Antonin 1983 The Doctrine of Standing as an Essential Part of Separation of Powers. Suffolk University Law Review 17:881–899.

Scott, Kenneth E. 1975 Two Models of the Civil Process. Stanford Law Review 27:937–950.

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Public Law Litigation

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Public Law Litigation