Institutional reform litigation (IRL) includes lawsuits brought to reform dysfunctional government bureaucracies. These cases attempt to improve prison conditions, the operation of child welfare systems, the provision of indigent defense, and other policy regimes whose incompetent administrations inflict systemic harm on groups of vulnerable people. IRL originated in school desegregation litigation and flourished in the 1970s. It then weathered a judicial reaction that cabined it by the end of the twentieth century. Since then, IRL has proceeded mostly without controversy. Scholarly attention to the topic has almost entirely disappeared.
In the 2020s, however, important cases have foundered in the U.S. Courts of Appeals. Several have prompted harsh judicial criticism, suggesting that IRL creates serious federalism and separation of powers problems. Th is “structural critique” challenges IRL’s legitimacy and rekindles a threat to its persistence.
This Article provides a description of IRL’s present-day realities to defend it against renewed judicial skepticism. Rooted in post–World War II jurisprudence and decades-old scholarship, the structural critique makes erroneous and outdated assumptions about litigation’s intersections with politics and bureaucracies and about the law that regulates IRL. Th e critique assumes that lawsuits displace what politically accountable officials prefer for a policy regime’s administration. But lawsuits’ outcomes and officials’ policy preferences oft en align. The critique assumes that IRL empowers maladroit judges to run complex agencies. But remedies that intervene in policy administration only issue and remain in place on repeated showings of extensive bureaucratic incompetence. Moreover, technical experts, not judges, primarily shape remedial design and implementation. Finally, the critique assumes that little law constrains activist judges managing IRL. But a “law of bureaucratic dysfunction” has emerged this century. Substantive, procedural, and remedial doctrines ensure that bureaucracies remain under judicial supervision only when remedies intersect symbiotically with politics, or when plaintiffs can prove and re-prove sustained and systemic bureaucratic incompetence.
This Article uses dozens of examples from recent cases to off er the first holistic description of IRL in two decades. It draws on thousands of court filings, extensive doctrinal research, and interviews with thirty-four people who collectively have hundreds of years of IRL experience. Together, these materials yield responses rooted in IRL’s political, bureaucratic, and legal realities to persistent judicial challenges to its legitimacy.
