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The Steep Costs of Judges as Institutional Reform Advocates

This is the first installment of a two-part post on the long-running lawsuit involving Texas’ foster care system, styled M.D. v. Abbott.  I begin with an overview of the numerous problems for democratic governance that are created by “institutional reform litigation.”

State and local governments manage the most important—and challenging—tasks necessary for the orderly coexistence of individuals in modern societies. We rely on state and local governments to operate police and fire departments (public safety), to provide education for our children (public schools), to incarcerate criminals (jails and prisons), to build and maintain roads and other infrastructure, and to dispense a myriad of social services to the needy and less fortunate among us. Some of these functions are dangerous, some are complicated, and some—such as special education, ameliorating poverty, and dealing with child abuse and parental neglect—are intractable, even Sisyphean, in nature.

All these tasks require considerable resources, and most could be performed better with more resources. Taxpayer funds, however, are finite; in a democracy, voters will consent to a certain level of exaction to finance governmental operations, but not beyond that limit. Health care competes with highway construction, which competes with teacher salaries, and so forth. Hence, the quantity and quality of the various services provided by state and local governments—all largely dependent on the level of funding they receive—ineluctably entail political choices made by state and local elected officials. The allocation of scarce resources through this process of budgetary wrangling will never fully satisfy any of the competing constituencies (all of whom would like more), but the institution of representative self-government—manifested by elections—gives legitimacy to the compromises that inevitably result.

This description of government decision-making is highly-simplified, to be sure. It omits the influence of special interest groups in elections, campaign finance, lobbying of elected officials, political parties, patronage, media coverage, public employee unions, cronyism, federal mandates, and occasional corruption. All those factors affect the political compromises ultimately struck, but they are merely the messy details of democracy. (Some factors, such as public employee bargaining, are preventable, but that is a separate issue.) The point is, compromises are unavoidable in a democratic society, and politics generally determines how such “bargains” are made—how the fiscal pie is divided. The wisdom of federalism is that state and local governments can experiment and learn from each other’s (and their own) mistakes. Perfection is a utopian delusion.

What if a disgruntled citizen (or group of citizens) unhappy with a particular compromise could circumvent the political process altogether and increase its share of the budgetary pie by filing a lawsuit in federal court, where the decision-maker is insulated from the electoral pressures that produced the disappointing outcome?  We would get—and have gotten—substantial interference with state and local governments in the form of “institutional reform litigation.” Thanks in part to the encouragement of Harvard law professor Abram Chayes in an influential 1976 article, “The Role of the Judge in Public Law Litigation,”[1] federal courts have increasingly intervened on behalf of litigious interest groups to micro-manage complex government functions, such as prisons, schools, and social services.

The lawyers bringing these suits are heralded as acting in the “public interest,” even though the objective is to stymie the results of a political process accountable to the only relevant public—the voters. Virtue-signaling law firms enthusiastically donate their litigation efforts in fashionable “pro bono” programs, oblivious to the fact that pro bono publico (“for the public good”) is not served by overriding the decisions of elected officials, sometimes saddling the public with substantially greater tax burdens. Undaunted, beginning in the 1970s an alphabet soup of advocacy groups and special interest litigation organizations began a campaign to reshape public policy through lawsuits, in effect subjecting state and local governments to the control of activist judges, a process that is invariably applauded by the left-leaning legal establishment as progressive and forward-thinking (meaning that the results suit liberals’ policy preferences). Shouldering aside mayors, governors, school boards, and legislators (and the voters who elected them), imperious judges—presuming to be the heirs of the civil rights movement—arrogantly dictate what is in the public interest.

Judges are not well-suited to act as free-wheeling social engineers. Feel-good motives aside, institutional reform litigation typically results in extended litigation, usually fails to deliver the desired reforms, and often produces expensive debacles. For example, a decade of litigation against the public school system in Kansas City, Missouri, presided over by federal district judge Russell Clark beginning in 1985, was a staggering failure.   Despite ordering Kansas City to implement massive increases in spending (and taxes), producing absurdly-lavish facilities (including “an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability,” and more), Judge Clark failed to improve test scores. Billions of dollars were wasted, with victimized Kansas City taxpayers left holding the bag.

Other examples abound.  In a book ironically titled Democracy by Decree, law professors Ross Sandler and David Schoenbrod concluded that decades of federal court litigation over New York City’s special education programs (Jose P. v. Ambach) accomplished little except to astronomically increase the special education budget at the expense of other students, with no discernable improvement of educational outcomes. At a cost of billions of dollars, Judge Eugene Nickerson’s cumbersome oversight imposed detailed procedures, rigid compliance obligations, and bloated administrative payrolls, while simultaneously undermining the city’s general education. The principal beneficiaries of the court’s sclerotic supervision were the burgeoning administrative bureaucracy, the plaintiffs’ attorneys, and richly-compensated “special masters.”

Judicial supervision of California’s prison system over the course of two decades of nonstop litigation by prisoner rights advocates was similarly flawed, resulting in the compelled release of up to 46,000 prisoners—endangering public safety—and over $1 billion in increased health care spending for inmates. California’s experience is, sadly, not unusual. Similar litigation previously plagued New York’s prison system.  Sandler and Schoenbrod found that “decrees have ruled prisons in forty-one states and local jails in fifty states.” A federal judge in Houston has even ordered Texas to provide air-conditioning to prison inmates.

Courts have also frequently usurped local control in the areas of school finance, foster care, welfare benefits, bilingual education, caring for the homeless, drug treatment, police practices, configuring public school attendance zones, and a host of other services provided by state and local governments. When improvements in the challenged services do occur following litigation, it is often a result of the legislature spending more money, which likely would have happened in any event.

Critics have pointed out the shortcomings of using consent decrees—sometimes as thick as phone books— to manage government functions, and some of the worst abuses of so-called institutional reform litigation have been corrected. But the larger problem remains. So long as aggressive special interest groups can defeat political “bargains” by shopping their grievances to an activist federal judge, who then has the power to certify class actions, appoint “special masters” to act as roving fact-finders and free-lance policymakers, identify amorphous—and often wholly fictitious—constitutional rights imposing affirmative obligations on the government (to be funded by taxpayers), and issue injunctions ordering increased spending, both federalism and representative democracy will be compromised.

Classical liberals and libertarians can debate what the appropriate scope of government is, and what services should be left to the free market (or private charities) to provide, but surely we can agree that unelected federal judges should not overrule budgetary decisions made by elected officials unless clearly necessary to vindicate an express constitutional right—which is rarely the case. Most institutional reform litigation is simply liberal social engineering, badly done.

Part 2 of this post will discuss the ongoing litigation involving Texas’ foster care system, in the case pending before federal district judge Janis Graham Jack in Corpus Christi, M.D. v. Abbott.  The lawsuit was filed in 2011 by a New York-based advocacy group, Children’s Rights, which was originally a project of the ACLU.  It has dragged on for nearly a decade, resulting in an initial order in December 2015 and another, 116-page decision, on January 19, 2018. (The Fifth Circuit immediately stayed that decision pending appeal.) The case is an archetypal “institutional reform litigation”—Judge Jack, appointed by President Bill Clinton, is a liberal activist; the plaintiffs were seeking a political objective, greater funding for foster care; and the judge employed the familiar gimmick of making up a new constitutional right, the novel “right to be free from an unreasonable risk of harm.”

As with all such lawsuits, the transparent goal was to circumvent the legislature and effect social change by judicial fiat. The primary difference between this case and prior foster care lawsuits against other states is that Texas declined to enter into a consent decree and fought the case instead. Stay tuned for details.

[1] 89 Harvard Law Review 1281 (1976).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 08, 2018 at 05:40:06 am

[…] Read more[…] […]

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The Steep Costs of Judges as Institutional Reform Advocates | Top 100 Blog Review
on February 08, 2018 at 10:55:12 am

Yep:

And now from the Grating State of Washington, we present for your review, the McCleary Decision, wherein the Court recognizes that it is the province of the Legislative to determine school funding, policy etc AND then proceeds to set policy, issue judicial orders WITH specific funding levels, later overturning the Legislative's determination and IMPOSING massive daily fines upon the Legislative when it does not meet the Judiciary's mandates. One result: Property taxes will rise 17% in the next year.

https://www.washingtonpolicy.org/publications/detail/overview-of-the-mccleary-decision-on-public-education-funding-and-reform

And all because the Judicial Branch has *interpreted* the meaning of "paramount duty" to support education in the State Constitution.

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gabe
on February 08, 2018 at 11:45:03 am

Agreed with caveat,in so much as this doesn't exclude litigation challenging unelected administrative made policy.

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Image of Paul Binotto
Paul Binotto
on February 08, 2018 at 15:44:42 pm

With this piece Mark Pulliam **once again**

http://www.libertylawsite.org/2018/01/16/jury-nullification-good-or-bad/

Mark Pulliam pulls this site back from political and social commentary (and movie reviews) to the subjects of LAW and Liberty.

The "bone" that this piece begins to nibble on is the function of a "legal system" in an Open Society whose members have a common objective of individual liberty.

Historians, notably Carroll Quigley, have observed that societies develop "facilities" or "instrumentalities" usually as organizations to meet particular needs of the members of the society. Among those needs have been the resolution of controversies amongst members. One such "facility" has been a legal system (there have been others).

It is certainly true that not all legal systems of all societies originated or developed for the propagation or protection of individual liberty. But, the facility of Law and Equity which existed and functioned with the development of our society did, and has, but has been subject to severe perversions.

Over something more than the past 500 years, a (if not-the) predominant function “our” legal systems has (or had) been the identification, delineation, reconciliation (including enforcement) of obligations recognized and accepted within the social orders extant over those periods of time.

That general statement must also take into account the “drift” away from that predominant function, including a shifting predominance of functions which has occurred in our own immediate society over the past century and certainly accelerated since my late (age 28) entry to the bar in 1952.

Plausible arguments can be made that the American legal system today is no longer predominantly a system for the determination of obligations (as had been the its long historical development); but now is rather predominantly regarded as a facility for the attainment of commercial, economic, social, ideological and political objectives. The great bulk of adjudications in the judicial portion of the system are concerned with Rules of Policy (Legislation, Regulations, Ordinances, etc. and the procedures for their implementations). Similarly, civil litigation is now principally concerned with the uses of Rules of Policy. The legal system has become another “means” for the attainment of “ends.”

Those changes in the American legal system have created both needs and opportunities for a class of “operators” or “technicians” with aptitudes, attitudes and motivations to use the facility as a means for the ends sought by those who engage their services. Members of the judiciary, however designated, have not been exempt.

As the system has changed and drifted from its concentration upon obligations and their roles in the relationships within the social order, those who are recruited into the purposes of the changed system will not conform to the characteristics of those who served in the preceding systems.

One cannot fairly deal with observations of the social and other roles of those serving the needs and demands of a legal system without considering the functions of that legal system which change in accordance with the trend of the current social order.

The conditions and effects of the judiciary are a response to changes in the functions sought from the "legal system" as a facility of the changing social order.

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Image of R Richard Schweitzer
R Richard Schweitzer
on February 08, 2018 at 17:46:40 pm

Richard:

1) Thanks for the refresher on the transition of institutions / mechanisms from mediating to "purposive"

For those interested, I recommend to you Mark Pulliam's new blog:
Mark is apparently too modest to do so himself, so I'll do it.

https://misruleoflaw.com/

2) "The conditions and effects of the judiciary are a response to changes in the functions sought from the “legal system” as a facility of the changing social order."

Yep, BUT:

Can we not also *credit* the Judicial with a more active role in the "changes" to the social order. I would not limit this *credit* to a passive acceptance / recognition of the polity's enlarged expectations of the Judicial's role, although much may be attributed to it; rather, one would argue that the Judicial itself, by carving out as its exclusive domain the final determination of "policy" (albeit under the guise of "interpretation" of COTUS), has both enlarged and accelerated the transition to a teleological legal system from one previously concerned with reconciliation of "collisions."

Our Black Robed Masters are a far more active breed than one that simply passively accepts the changes in the social order.

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Image of gabe
gabe
on February 08, 2018 at 19:10:54 pm

Thanks for the plug, Gabe. I will continue writing for Law and Liberty (but no movie reviews, Richard), but will also blog on the new website, which contains an archive of my work from various sources.

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Image of Mark Pulliam
Mark Pulliam
on February 09, 2018 at 09:58:47 am

Having actually "scanned" (reading is something else) the "Misrule of the Law," it does offer a clearer approach in dealing with "Rule" as a verb, rather than sometimes a noun and sometimes a verb.

For those who journey here for insights on LIBERTY and how it is impacted by "Law," those categories of subjects in this new site (on the legal system concerned with the verb) which focus on the adjudications of legislation, regulations and social clashes also bring attention to the issues of what IS and is NOT " LAW," and the distinctions required in the adjudications of those differences. They have, and continue to impact Individual Liberty.

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Image of R Richard Schweitzer
R Richard Schweitzer
on February 09, 2018 at 10:09:50 am

It might be tempting as a "goal," but, the Judiciary is not a "priesthood."

However much the members of a Judiciary may purport to "direct" conduct in the social order, they are actually responsive to determining that conduct in response (sometimes delayed or deferred) to the sense of "Order" being formed by the members o the society. AND, this is NOT new in the experience of cultures and civilizations.

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Image of R Richard Schweitzer
R Richard Schweitzer
on February 09, 2018 at 14:22:19 pm

Richard:

Agreed, in that were there not a receptive ground within the polity, i.e., a general impetus for certain teleological ends, predominantly expressed as, and by, the attainment of the *perfect* social order, the Black Robes would be unable to work their cleverness upon the Law and would further be unable to transform it from a mediating form into a "corrective" form.

Nevertheless, the cleverness of the Black Robes has, at a minimum, hastened / accelerated the transformation and at worst offered many *novel* avenues for new "correctives."
Perhaps the term for them is reactive agents?

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Image of gabe
gabe
on February 09, 2018 at 14:42:24 pm

I think the core problem is that the power of the purse is in the legislature, not the judges. Judicial orders to increase the tax rate to fund X or Y, or to reallocate funds to do X or Y instead of Z should be ignored as beyond the power of the judges to order. Just as judges ordering the prosecution of individuals are to be ignored as beyond the power of judges as these are core executive powers.

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Devin Watkins
on February 09, 2018 at 15:51:00 pm

Offsetting the sufficiency of that argument (of the power of the purse) is the determination of an obligation (under a Constitution or situationally) to exercise that power or pass judgement on HOW that power is exercised. Here state rules and laws vary.

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Image of R Richard Schweitzer
R Richard Schweitzer
on February 14, 2018 at 03:38:20 am

Proper training and coaching as to the kind of policies the company has and following them properly, including the provision guides, can be an excellent way to avoid litigation in the future as everyone is well aware of their obligations. Conclusion Business litigation can be difficult to study, but it’s not an impossible endeavor. This is best done with the help of a legal professional because they have the training that will help you be acquainted on other key tips on how to help prevent business litigation. They are also equipped to be able to give you adequate advice on making sure your systems in place are appropriate to avoid business litigation and the legal aspects of your business are taken care of. Remember that the key tips as described above aren’t immediately the best way to go to prevent business litigation, and they’re not the only ways to avoid business litigation.

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marcell
on March 16, 2018 at 01:01:21 am

[…] and, implicitly, to private advocacy lawyers who drive the process. [Mark Pulliam/Law and Liberty, first and second parts; Robert T. Garrett, Dallas News; more on foster care, institutional reform […]

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Image of Texas battles foster care decree – John Culbreath
Texas battles foster care decree – John Culbreath
on August 16, 2018 at 22:21:11 pm

This is a great post for many reasons, and I appreciate the instruction it offers.

Pulliam describes a mixed economic system, wherein some goods and services are free market and others are provided by the government. That mixture can work under a republican form of government, which the U.S. Constitution guarantees. However, civic citizens must discipline the federal governments.

A major problem with this entire status of the U.S. is the acceptance of a democratic society rather than statutory justice according to civic integrity. That is, justice that is determined by collaborating to discover the-objective-truth rather than conflicting for dominant opinion.

The first legal sentence in the U.S. Constitution is the preamble. When the U.S. was established on June 21, 1788 by the peoples’ representatives to state ratification conventions in nine state, the Union lessened the Confederation to four free and independent states, one of which joined the Union before operations began on March 4, 1789. Then, the three dissident states and their citizens had no standing to attend Congress.

Also, the preamble offers a civic agreement which citizens are free to decline. Thus, there was and always will be two transcending special interest groups among citizens: fellow citizens who trust-in and commit-to the preamble for civic integrity and fellow citizens who, for reasons they may understand, are dissidents. I call the non-dissidents civic citizens.

In the American democracy, there is one vote per qualified citizen. Activists have ruined the vote by making mere existence plus chronological age 18 sufficient qualification for non-felon citizens to vote. I would like to see an initial requirement that first-time voters demonstrate trust-in and commitment-to the preamble in order to vote. But the balance of powers and federalism spoils democracy as a political system. A vote for U.S. Senator in Wyoming is 68 times more politically powerful that a vote for U.S. Senator in California. I hope Editor Pulliam well help a chemical engineer understand Pulliam's seeming favor toward democracy.

Additionally, I oppose social morality and write to interest fellow citizens in civic morality. “Civic morality” might be expressed as individual mindfulness among fellow citizens for mutual, comprehensive safety and security during life more than for the past yet for an achievable better future, benefitting from the-objective-truth.

Lawyers and judges are first fellow citizens, and if they behave as dissidents, it is up to self-disciplined civic citizens to either correct or reject the dissident’s services in elected or appointed office.

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Phil Beaver
on November 08, 2018 at 06:32:26 am

[…] in “White Shoe Social Justice Warriors,” much of Big Law’s “pro bono” docket consists of impact litigation in partnership with openly-ideological organizations such as the discredited Southern Poverty Law […]

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The Pro Bono Hoax: Part II
on March 12, 2019 at 18:03:47 pm

[…] authority to overturn state and local laws with which it disagrees. No sphere of activity is free of judicial meddling: public schools, prisons, social services, welfare benefits, the maintenance of public order (such […]

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Image of The Pernicious Notion of ‘Unenumerated Rights’ – American Greatness – Full Magazine
The Pernicious Notion of ‘Unenumerated Rights’ – American Greatness – Full Magazine
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on April 10, 2020 at 08:32:35 am

[…] the economics of litigation, forum shopping, the growth of the legal profession, pro bono, “institutional reform litigation,” consent decrees, the political influence of trial lawyers, the Americans with Disabilities Act, […]

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