Destabilization rights: How public law litigation succeeds

Abstract

"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 substantially 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.