Aging Injunctions and the Legacy of Institutional Reform Litigation
Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court’s ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional facilities, and police departments. But these injunctions face an uncertain future. The Supreme Court has held that institutional reform injunctions must be easier to terminate than all other injunctions issued by the federal courts. Some institutional reform injunctions go unenforced or are forgotten entirely. Others expire due to sunset provisions. At the same time, doctrinal shifts have made it more difficult for plaintiffs to win new injunctions in institutional reform cases.
Scholars have been tracing the decline of institutional reform litigation for years, but little attention has been paid to the fate of the countless injunctions that remain in place. This Article sheds light on this essential but overlooked aspect of institutional reform litigation. First, it identifies three ways that institutional reform injunctions are dying off—by dissolution, by design, and by disuse—and the implications of each form of injunction death. Then, it argues that scholars, judges, and litigants must rethink their approach to the end stages of institutional reform injunctions, offering strategies to ensure that current and future injunctions are not terminated prematurely. This Article thus adds an important new perspective to the debate over the legacy of institutional reform litigation.
Visiting Associate Clinical Professor of Law, Columbia Law School; Associate Professor of Law, Pace University School of Law.