From Status to Contract and Back Again: Consent Decrees in Institutional Reform Litigation

In issuing remedial decrees in institutional reform cases against state and local governments, courts should, as we argued in our book Democracy by Decree, enforce rights and otherwise leave policy making to elected officials. We have also argued that decrees in such cases tend to control policy more than is needed to enforce rights, even when the need for prophylaxis is taken into full account. The point we emphasize in this essay is that overly broad consent decrees work an inappropriate shift from judicial protection of the plaintiffs-in their status as right-holders-to judicial protection of plaintiffs in a new status-as beneficiaries of a contract. What starts out as a flexible remedy morphs into a rigid contract. Holders of rights to social programs are entitled to have their rights enforced, but not to achieve hegemony over the policy choices entrusted to public officials. Our concern is the current court practice that encourages judges to view consent decrees against governmental officials as contracts rather than equitable remedies. This not-so-subtle shift in theory collides with fundamental democratic principles.