117 Harv. L. Rev. 1015 Harvard Law Review February, 2004 Article *1015 DESTABILIZATION RIGHTS: HOW PUBLIC LAW LITIGATION SUCCEEDS Charles F. Sabel, William H. Simon [FNa1] Copyright © 2004 Harvard Law Review Association; Charles F. Sabel; William H. Simon TABLE OF CONTENTS I. Introduction ................................................... 1016 II. The Protean Persistence of Public Law Litigation .............. 1021 A. Schools ...................................................... 1022 B. Mental Health ................................................ 1029 C. Prisons ...................................................... 1034 D. Police Abuse ................................................. 1043 E. Housing ...................................................... 1047 F. Conclusion ................................................... 1052 III. Public Law Litigation as Destabilization Rights Enforcement .. 1053 A. Right and Remedy ............................................. 1053 B. The Destabilization Theme in Private Law Litigation .......... 1056 1. Precedent and Polycentricity ............................... 1057 2. The Destabilization Aspect of Common Law Regulation ........ 1059 C. Destabilization Rights ....................................... 1062 1. The Prima Facie Case ....................................... 1062 2. Remedy: The Experimentalist Tendency ....................... 1067 D. Destabilization Effects ...................................... 1073 1. The Veil Effect ............................................ 1074 2. The Status Quo Effect ...................................... 1075 3. The Deliberation Effect .................................... 1076 4. The Publicity Effect ....................................... 1077 5. The Stakeholder Effects .................................... 1077 6. The Web Effect ............................................. 1080 IV. The Experimentalist Approach and Doctrinal Issues ............. 1082 A. Remedial Discretion .......................................... 1082 B. Separation of Powers ......................................... 1090 C. The Problem of Attribution ................................... 1095 D. The Problem of Interest Representation ....................... 1097 V. Conclusion ..................................................... 1100 *1016 "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. I. Introduction Scorned when not forgotten, yet transformed by its travails, public law litigation is becoming -- again -- an influential and promising instrument of democratic accountability. In 1976 Abram Chayes argued that efforts to apply rule-of-law principles to the institutions of the modern welfare state had produced a new kind of litigation. [FN1] The "traditional" lawsuit involved two private parties and focused on allegations of a discrete past wrong implying a particular remedy, most often a one-time money payment from the defendant to the plaintiff. Chayes showed that an important category of civil rights litigation departed radically from this model. These *1017 "public law" cases involved amorphous, sprawling party structures; allegations broadly implicating the operations of large public institutions such as school systems, prisons, mental health facilities, police departments, and public housing authorities; and remedies requiring long-term restructuring and monitoring of these institutions. Chayes argued that the new litigation enriched the institutional repertory of our democracy. In his view, the independence, flexibility, and accessibility of the courts equipped them for the task of holding chronically underperforming institutions accountable to governing legal standards. Public law courts were less susceptible to capture by selfish interests and better able to induce fruitful discussion among the relevant parties than the administrative agencies that might otherwise have oversight responsibility. Although Chayes's analytic description of public law litigation became canonical, his defense of it remained controversial. Early critics doubted that courts had the necessary information to supervise institutional restructuring effectively. Even if the courts were sufficiently informed, these critics argued, their power seemed too narrow and too shallow for the new task: Too narrow because the problems of public agencies were linked to myriad other institutions and social practices, while a court's power extended only to the parties before it. Too shallow because the operations of the agencies depended on the street-level conduct of subordinates far below the court's view, while a court's direct remedial authority operated mainly against senior officials (and even then, only with severe limitations). [FN2] From the outset, the legitimacy of public law litigation was as suspect as its efficacy. For Chayes, such litigation would legitimate itself by solving public problems that other institutions of the administrative state could not. But many critics argued that even effective judicial intervention of this kind was often illegitimate. They emphasized, as Chayes had conceded, that these cases did not fit easily into traditional notions of the judicial role or the separation of powers. They doubted that conventional legal sources of authority and modes of analysis could be made to speak in any direct or determinate fashion to the task of devising remedies that restructured entire organizations. They argued that the courts could not undertake the restructuring of administrative agencies without trenching on the authority of the executive and legislative branches, and that federal courts could not superintend *1018 the restructuring of state and local agencies without compromising principles of federalism and local autonomy. [FN3] The United States Supreme Court and other appellate tribunals also expressed disapproval in a range of decisions designed to rein in trial court discretion in public law actions. [FN4] Legislatures passed statutes--most notably, the federal Prison Litigation Reform Act of 1996 (PLRA) [FN5]-- constraining the courts in these cases. Trial court judges who undertook structural relief in some high-profile cases threw up their hands in apparent exhaustion or despair, dissolving injunctions purportedly because all practicable vindication of the plaintiffs' rights had been achieved, even though little progress was detectable. [FN6] Even the liberal defense of Chayes's model took on an anxious tone. [FN7] Proponents struggled uncomfortably with the jurisprudential phenomenon of rights that did not come with ready-made remedies. They worried about how to limit judicial discretion and preserve the prestige of the courts. There was also increasing worry about the accountability of the advocates to their generally poor and ill-educated clients--the putative right holders. [FN8] Yet despite decades of criticism and restrictive doctrines, the lower courts continue to play a crucial role in a still-growing movement of institutional reform in the core areas of public law practice Chayes identified: schools, prisons, mental health, police, and housing. And while they have opposed some judicial interventions, legislatures have acquiesced in and even encouraged others. [FN9] There is no indication of a *1019 reduction in the volume or importance of Chayesian judicial activity. The particular forms of this activity, however, have evolved. The remedies of recent years are different in important respects from those that Chayes and his critics focused on. The evolution of structural remedies in recent decades can be usefully stylized as a shift away from command-and-control injunctive regulation toward experimentalist intervention. Command-and-control regulation is the stereotypical activity of bureaucracies. It takes the form of comprehensive regimes of fixed and specific rules set by a central authority. These rules prescribe the inputs and operating procedures of the institutions they regulate. By contrast, experimentalist regulation combines more flexible and provisional norms with procedures