National Rulemaking Through Trial Courts: The Big Case and Institutional Reform


This Article reconceptualizes institutional reform lawsuits-big cases involving the structural reform of local government entities such as prisons and housing authorities-as the nodes of a nationwide network capable of generating national standards of administration for disparate local institutions. The repeat-playing litigators, parties, and experts who participate in this network facilitate the adoption of common standards by preferring familiar remedies, by valuing interoperability between cases, and by succumbing to the inertial momentum that this can create. The Article also analyzes the sort of law created by the spread of standards, which is low on reasoned elaboration and high on best-practices-style copying. The Article contrasts this view of institutional reform litigation, which focuses on the connections between lawsuits, instead of on the judge or the parties to a particular lawsuit. The Article then draws on the literature of international regulatory cooperation to site this phenomenon, which, consistent with that literature, it dubs "transjudicial administration."

About the Author

Acting Assistant Professor, New York University School of Law

By uclalaw