Friedman - When Rights Encounter Reality

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Citation: 65 S. Cal. L. Rev. 735 1991-1992
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ARTICLES
WHEN RIGHTS ENCOUNTER

REALITY: ENFORCING FEDERAL
REMEDIES
BARRY FRIEDMAN*
I. INTRODUCTION
It is the legal realists-and particularly the late Professor Lon
Fuller-whom we have to thank for the insight that the best way to
study legal rights often is by looking to the remedies employed to enforce
those rights. 1 Professor Fuller began his casebook on the law of contracts in a novel fashion, with a chapter on the remedies available to
enforce contracts. 2 The underlying theme of this realist insight was that
there is an intimate connection between right and remedy. Without an
available and enforceable remedy, a right may be nothing more than a
* Professor of Law, Vanderbilt University School of Law; A.B. 1978, University of Chicago;
J.D. 1982, Georgetown University. I would like to extend my sincere thanks to the many people
who offered valuable comments on an earlier draft of this article: Ann Althouse, Akhil Amar, Susan
Bandes, Jack Beermann, Rebecca Brown, Erwin Chemerinsky, Jim Ely, Dick Fallon, Lou Fisher,
Willy Fletcher, Vicki Jackson, Robert Nagel, Michael Solimine, Gerry Spann, Mark Tushnet, Tom
Wiseman, and Nick Zeppos. I also owe a debt of gratitude to the students who spent a year discussing these issues with me and performing valuable research: Rob Bateman, David Concannon, Sue
Gresham, Cory Hohnbaum, and Carla Rains, as well as to Stacey Jarrell, who was a dedicated
research assistant. The Tennessee Attorney General's Office was kind enough to invite me to discuss
these issues and offered the important insights of individuals who grapple with the question of remedial authority on a day-to-day basis.
1. See Lon L. Fuller, Williston on Contracts, 18 N.C. L. REv. 1, 4 n.5 (1939) ("Certainly the
issue cannot be foreclosed by assuming a moral duty which sets its own legal sanction, or by assuming a legal duty so tenacious of life that it continues to exist even after courts have cased to enforce
it."); EDWIN N. GARLAN, LEGAL REALISM AND JUSTICE 44 (1941) ("'Absence of remedy is
absence of right.' ").
2.
LON L. FULLER, BASIC CONTRACT LAW (1947).
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 65:735
nice idea.3 Any meaningful discussion of rights, therefore, must focus on

remedies available to implement the rights.
This realist insight is particularly potent, and yet often neglected, in
the area of constitutional law. Constitutional rights are the subject of a
vibrant scholarly and popular debate, alongside which the writings on
constitutional remedies are noticeably sparse.4 Discussing rights in the
abstract is interesting; our commitment to those rights is tested, however,
when it comes time to bear the cost of enforcement.
3. See Garlan, supra note 1. See also Frank H. Easterbrook, Civil Rights and Remedies, 14
HARV. J.L. & PUB. POL'Y 103 (1991) ("Most disputes over remedies in civil rights cases have nothing to do with remedies and everything to do with substantive entitlements.").
4. Although sparse relative to writing on constitutional rights, there is a healthy literature on
constitutional remedies. Among the most important commentaries (with apologies to those I missed)
are the following: Akhil R. Amar, Of Sovereignty and Federalism,96 YALE L.J. 1425 (1987); Curtis
J. Berger, Away From the Court House and Into the Field: The Odyssey of a Special Master, 78
COLUM. L. REv. 707 (1978); Abram Chayes, Foreword:Public Law Litigation and the Burger Court,
96 HARV. L. REV. 4 (1982) [hereinafter Chayes, Burger Court]; Abram Chayes, The Role of the
Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) [hereinafter Chayes, Role ofJudge];
Frank M. Coffin, The Frontierof Remedies" A Callfor Exploration, 67 CAL. L. REv. 983 (1979);
Walter E. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 HARV. L. REV. 1532
(1972); John Denvir, Towards a Political Theory of PublicInterestLitigation, 54 N.C. L. REV. 1133
(1976); Colin S. Diver, The Judge as PoliticalPowerbroker Superintending Structural Change in
Public Institutions, 65 VA. L. REv. 43 (1979); Easterbrook, supra note 3; Theodore Eisenberg &
Stephen C. Yeazell, The Ordinary and the Extraordinaryin InstitutionalLitigation, 93 HARV. L.
REv. 465 (1980); Richard H. Fallon, Jr., Of Justiciability,Remedies, and Public Law Litigation:
Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REv. 1 (1984); Owen M. Fiss, Foreword: The
Forms of Justice, 93 HARV. L. REv. 1 (1979); William A. Fletcher, The Discretionary Constitution:
InstitutionalRemedies and Judicial Legitimacy, 91 YALE L.J. 635 (1982); Barry Friedman, Right
andRemedy, 43 VAND. L. REV. 593 (1990) (reviewing LARRY W. YACKLE, REFORM AND REGRET:
THE STORY OF FEDERAL JUDICIAL INVOLVEMENT IN THE ALABAMA PRISON SYSTEM (1989));
Gerald E. Frug, The JudicialPower of the Purse, 126 U. PA. L. REv. 715 (1978); Paul Gewirtz,
Remedies and Resistance, 92 YALE L.J. 585 (1983); Alfred Hill, Constitutional Remedies, 69
COLUM. L. REV. 1109 (1969); James M. Hirschhorn, Where the Money Is: Remedies to Finance
Compliance with Strict StructuralInjunctions, 82 MICH. L. REV. 1815 (1984); John C. Jeffries, Jr.,
Damagesfor ConstitutionalViolations: The Relation of Risk to Injury in ConstitutionalTorts, 75 VA.
L. REv. 1461 (1989); Al Katz, The JurisprudenceofRemedies: ConstitutionalLegality and the Law
of Torts in Bell v. Hood, 117 U. PA. L. REV. 1 (1968); Paul J. Mishkin, Federal Courts as State
Reformers, 35 WASH. & LEE L. REV. 949 (1978); Henry P. Monaghan, Foreword: Constitutional
Common Law, 89 HARV. L. REV. 1 (1975); Robert F. Nagel, Controllingthe StructuralInjunction, 7
HARV. J.L. & PUB. PoL'Y 395 (1984) [hereinafter Nagel, StructuralInjunction]; Robert F. Nagel,
Separation of Powers and the Scope of FederalEquitable Remedies, 30 STAN. L. REV. 661 (1978)
[hereinafter Nagel, Remedies]; Gene R. Nichol, Bivens, Chilicky, and Constitutional Damages
Claims, 75 VA. L. REv. 1117 (1989); Ira P. Robbins & Michael B. Buser, Punitive Conditions of
Prison Confinement: An Analysis of Pugh v. Locke and Federal Court Supervision of State Penal
Administration Under the Eighth Amendment, 29 STAN. L. REV. 893 (1977); Daniel L, Rotenberg,
Private Remediesfor Constitutional Wrongs-A Matterof Perspective,Priority, and Process, 14 HASTINGS CONST. L.Q. 77 (1986); Susan P. Sturm, A Normative Theory of Public Law Remedies, 79
GEO. L.J. 1355 (1991); Jack B. Weinstein, The Effect ofAusterity on InstitutionalLitigation,6 LAW
& HUM. BEHAV. 145 (1982); Donald H. Zeigler, Rights Require Remedies: A New Approach to the
Enforcement of Rights in the Federal Courts, 38 HASTINGS L.J. 665 (1987).
1992]
WHEN RIGHTS ENCOUNTER REALITY
American jurisprudence suffers from an intriguing schizophrenia

with respect to rights and remedies that harks back at least to the greatgrandparent of constitutional law, Marbury v. Madison.' One of the easiest issues for Chief Justice Marshall in Marbury was the following question: "If [Marbury] has a right, and that right has been violated, do the
laws of his country afford him a remedy?" 6 The affirmative answer to
this question took Marshall but a few paragraphs, and is sufficiently
ironic in light of the disposition of the case that the heart of Marshall's
answer is well worth repeating here:
The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an
injury. One of the first duties of government is to afford that protection.... The government of the United States has been emphatically
termed a government of laws, and not of men. It will certainlycease to
deserve this high appellation,ifthe laws furnish no remedy for the violation of a vested legal right.7
What everyone knows or remembers about Marbury is the "lawsaypower John Marshall bestowed upon the federal judiciary in the
service of remedying rights violations. What is too easily forgotten is
that the victim of Marshall's famous decision was William Marbury himself. Marbury, although entitled to his commission, never received it,
largely because of a jurisdictional conflict concocted by Marshall in order
to aggrandize judicial power.9
ing" 8
Marbury v. Madison is an apt metaphor for the shortfall between the

way in which we idealize constitutional rights and the reality of enforcing
those rights in the everyday world. We envision a system of separated
powers in which courts fulfill the Marbury function of announcing what
the law is, particularly with regard to constitutional rights. Too often we
fail to take account of governments and the people who run them, to
whom the fate of rights is left after the courts have finished their lawsaying function and gone home.
5.
5 U.S. (1 Cranch) 137 (1803).
6. Id. at 154.
7. Id. at 163 (emphasis added).
8. I thank Ann Althouse for this word and her helpful ideas for this introduction. See Ann
Althouse, Standing, in Fluffy Slippers, 77 VA. L. REV. 1177, 1182 n.22 (1991) (" '[L]awsaying' [is]
derived from Marbury v. Madison .... 'It is emphatically the province and duty of the judicial
department to say what the law is.'" (citation omitted)).
9. See William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1.
Professor Van Alstyne's article has become a classic with regard to the machinations of the Marbury
opinion.
[Vol. 65:735
This Article examines our commitment to the idealized notion of

judicial rights definition by measuring it against the standard set out in
Marbury: that the law must afford a remedy when rights have been violated. If Marbury's fundamental tenet were correct, we would expect to
find a tight congruence in constitutional law between right and remedy.
What emerges from a study of the law of remedy and enforcement, however, is the picture of a system in which there is tremendous flexibility in
the fit between right and remedy and therefore a system in which rights
receive far less respect than the rhetoric would suggest. Indeed, close
examination reveals a system in which failure to comply with, if not outright defiance of, judicial remedial orders is tolerated to a certain
10
degree.
This divergence between the ideal and reality is not surprising; it
reflects a similar divergence between our idealized view of the judicial
function and the reality imposed by the milieu in which courts must
operate. The "countermajoritarian difficulty""1 is born of a world in
which courts are seen as insulated bodies decreeing rights without regard
to popular will. But, as John Marshall knew all too well, defining rights
is one thing; enforcing them is another.
Thus, as this Article argues, our idealized notion of countermajoritarian courts must give way to a vision of courts as bodies different
from, but nonetheless responsive to, popular will. This, the Article suggests, is where the constitutional remedial and enforcement process
comes into play. Rights are often abstract; they are announced without a
clear sense of how they will be received or implemented. Through the
process of remediation and enforcement, however, courts take into
account popular will and tolerance for the rights announced.
This view of the remedial process shatters idealistic notions of the
judicial function. It suggests that a defiant majority can alter our constitutional rights, contrary to the view that constitutional rights are protections against popular will. But this is not news to courts-particularly
the Supreme Court-which are charged on a daily basis with maintaining the fiction of judicial supremacy. Courts know, as their decisions
make clear, that judicial legitimacy is fragile, all too dependent upon
popular support. In order to maintain popular support, courts must
adjust the breadth of rights to take account of difficulties that surface at
the remedial stage, such as majoritarian resistance to either the remedies
or the underlying rights. Thus, studying the remedial process teaches us
10.
11.
See infra Part II.

See ALEXANDER M.
BICKEL, THE LEAST DANGEROUS BRANCH
16-23 (1962).
1992]
that majoritarian views do

countermajoritarian rights.
have
an
impact upon
ostensibly
This Article views rights through the prism of remedies. Although

constitutional rights and remedies of all sorts are discussed, the Article
focuses on the institutional cases, such as school desegregation and
prison reform, as well as on recent Supreme Court remedial pronouncements such as Missouri v. Jenkins 2 (involving the breadth of remedial
authority for school desegregation) and Spallone v. United States"
(involving remedial power in the face of recalcitrant housing discrimination). This focus is taken because the remedies in these cases raise the
greatest controversy, in part because of remedial breadth, but as the Article states, also because of widespread disagreement over the underlying
rights.
Part II of this Article addresses the law of constitutional remediation: first, constitutional remedies; then, enforcement of those remedies. 4
The focus throughout Part II is upon institutional litigation in which
federal courts seek to reform state institutions such as schools, prisons,
and mental hospitals. Because these cases raise the most difficult remedial issues, they cause the greatest controversy. 5 Part II draws several
12.
110 S. CL 1651 (1990).
13. 493 U.S. 265 (1990).

14. It is useful at the outset of this discussion of the remedial power of federal courts to recognize that there are three broad steps that federal courts go through in the remedial process. Often
commentators and judges envision a two-step process: definition of the right and determination of a
remedy. See, eg., Dellinger, supranote 4 (focusing solely on question of determining the appropriate
"affirmative" remedy for violation of a constitutional right); Hill, supra note 4 (same); Ziegler, supra
note 4 (referring to "enforcement," but discussing only defining a remedy and requiring its implementation without addressing practical problem of enforcement). As the Court's decisions in Jenkins and Spallone indicate, however, a third step must be added to the list: enforcement of the
remedy. If the defendant complies immediately with the imposition of the remedy-a contingency
we often assume in an idealized conception of remediation-then the third step may be overlooked.
It is increasingly clear, however, that announcement of the remedy does not guarantee compliance
and that conflict often comes to a head in seeing that the remedy is enforced. See Coffin, supra note
4, at 984 (stating that court's enforcement authority kicks in once defendants fail to comply with
remedial order).
Nor should I neglect a step in the process antecedent to the discussion set out in this Article:
the determination of whether the Court has jurisdiction. This step is critical in determining rights,
and it may be manipulated by either the Court or Congress in a manner that affects substantive
rights. I discussed this in my article on Congress's power to control federal court jurisdiction. See
Barry Friedman, A Different Dialogue." The Supreme Court, Congress, and FederalJurisdiction, 85
Nw. U. L. REV. 1 (1990). An important study of the Court's use of standing as a jurisdictional
threshold is found in Fallon, supra note 4.
15. See infra notes 61-63 and accompanying text. I would be remiss if I did not, at an early
point in this Article, acknowledge the groundbreaking work of Professor Abram Chayes in this area,
for which he coined the phrase "public law litigation." See Chayes, Burger Court, supra note 4;
Chayes, Role ofJudge, supra note 4. An equally important work by Professor Fiss followed on the
[Vol. 65:735
important conclusions. First, despite the close congruence between right

and remedy that Marbury's fundamental tenet suggests, the Court's doctrine regarding remediation is quite flexible, providing great leeway to
adjust the scope of a remedy to accommodate the governmental defendant's needs. Second, the Court's decisions regarding enforcement of remedies tolerates "channeled defiance" of federal court remedial orders,
even though such defiance affects the implementation of federal
16
remedies.
Part III of this Article offers a justification for the Court's approach,
despite the Court's divergence from the Marbury model of remediation.
Part III explains that majoritarian acceptance of courts' decrees ultimately determines whether those decrees ever are enforced. Thus, the
Court's remedial paradigm provides room for a dialogue between courts
and the more majoritarian elements of society with regard to the scope of
appropriate remedies, accommodating popular concerns when remedial
orders are fashioned and enforced. Additionally, in answering separation
of powers concerns about broad federal judicial remedial authority
(including concerns about a federal judiciary directing the activities of
state and local governments), Part III recasts the traditional notion of
separation of powers as a "cooperation of powers."
Part IV addresses the problem posed by the realist insight in the
area of constitutional rights: if majoritarian bodies and popular will have
an impact on the scope of constitutional remedies, they necessarily affect
constitutional rights. Thus, majoritarian will has some control over
rights that in our idealized system are countermajoritarian in nature.
This final part of the Article suggests that such control is both unavoidable and appropriate because judicial legitimacy rests fundamentally on
popular acceptance and because courts are not omnipotent and do benefit
from the popular wisdom shared in the remedial dialogue. This Article
does not suggest that popular will should control rights, but that courts
should engage majoritarian branches in a dialogue about the nature of
remedies and the content of rights.
heels of Professor Chayes's articles. See Fiss, supra note 4. I am in particular agreement with the
judicial role envisioned by Professor Fiss. Incidentally, a stunning critique of the notion that public
law litigation represents a "new" form appears in Eisenberg & Yeazel, supra note 4.
16. See infra notes 171-92 and accompanying text.
1992]
II. REMEDIES AND THEIR ENFORCEMENT

A.
REMEDIES
Ubijus, ibi remedium-the Latin phrase sounds as beautiful as the

noble idea it expresses: where there is a right, and that right has been
violated, the law will accord a remedy.' 7 Nonetheless, this fundamental
tenet is as unhelpful as it is majestic; the Latin does not begin to tell us
what it means to remedy a right that has been violated. A court that has
found a right violated and is ready to decree a remedy faces a number of
difficult questions.
First, there is the problem of what it means to impose a "remedy.""8
Courts often say-and this seems both intuitively correct and consistent
with the Marbury principle-that a remedy should compensate a victim
for injuries suffered. 9 But equally often courts talk of imposing a remedy for the purpose of deterrence: by putting some bite on the violator of
today, future violations will be avoided.20
Second, even if a court settles on a particular concept of remediation, perhaps compensation, the question of how to effectuate that conception itself is complicated. For example, what constitutes
compensation? As a matter of tradition if nothing else, our legal system
has settled on the idea of money damages as the way of compensating
injured people.2 Although the notion that money can make someone
"whole" is familiar, if somewhat dubious, where physical injury is caused
17. Marbury, 5 U.S. (1 Cranch) at 163; Katz, supra note 4, at 15.
18. For an excellent discussion of the competing goals of deterrence and compensation, see
Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and
Defendants as PrivateAttorneys General, 88 COLUM. L. REv. 247 (1988).
19. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388, 396 (1971) ; Milliken v.
Bradley, 418 U.S. 717, 746 (1974) (Milliken I) ("[R]emedies should restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct."); Milliken v.
Bradley, 433 U.S. 267, 280 (1977) (Milliken II) (same). In the context of school desegregation, this
rhetoric is hardly credible. See infra note 51-53 and accompanying text; see also Jack Beermann, A
CriticalApproach to Section 1983 with SpecialAttention to Sources ofLaw, 42 STAN. L. REV. 51, 7172 (1989) (pointing out that the Court fails to consider deterrence rationale); Dellinger, supra note 4,
at 32-33 (Bivens action will provide compensation, if not deter conduct.).
20. See, eg., United States v. Calandra, 414 U.S. 338, 348 (1974) (noting that the exclusionary
rule is designed to work through its "deterrent effect"); see also Rotenberg, supra note 4, at 96 (The
exclusionary rule debate has focused on deterrence, not compensation.); Mapp v. Ohio, 367 U.S.
643, 656 (1961) ("[Tlhe purpose of the exclusionary rule 'is to deter-to compel respect for the
constitutional guaranty.' "); Ann Althouse, When to Believe a Legal Fiction: FederalInterests and
the Eleventh Amendment, 40 HASTINGS L.J. 1123, 1144 (1989) ("[R]etroactive relief... serves not
only to compensate, but to deter.").
21. This assumes compensation is the goal. See infra note 68 and accompanying text for a
discussion of the "remedial preference" for injunctions.
[Vol. 65:735
by tortious conduct, the concept often is rather strained in the context of

many constitutional rights.2 2 When someone's right to speak is curtailed, or illegal drugs are seized from someone's possession in an unconstitutional manner, the one-to-one correlation of money to injury seems
particularly attenuated.2 3
Finally, should a court worry about the impact that imposing a remedy will have on the state or local entity concerned? In the abstract, the
Marbury principle would suggest not., But remedying rights is costly,
and the public body defendant may not be able to incur the cost without
curtailing the good that can be done for other members of the body politic.24 These uninjured citizens are often thought to be "innocent" of any
wrongdoing, and courts and commentators express concern about imposing the costs of the remedy on these innocents.25 It is one thing to maintain flatly that inability or reluctance to pay should not stand in the way
of remedying a right; it is quite another to deal with the consequences of
such an approach in the real world.
Especially when there is legitimate question about what it mbans to
remedy a right, concerns about the cost of particular remedies are inevitable. At the least, when there is an unclear congruence between right
and remedy, it gets easier to rule out one remedy after another and still
maintain that the right exists. Often the remedy mandated by judicial
doctrine is not money but an injunction directed to future government
22. See Dellinger, supra note 4, at 1542-43 (questioning why a damages remedy, or any other
remedy, flows from the Constitution, and wondering which damages the Constitution requires to be
awarded); Rotenberg, supra note 4, at 87 ("[Ihe Court views a constitutional wrong as if it were just
another tort wrong.").
23. Beermann, supra note 19, at 78 ("Many potential constitutional violations cause little or no
injury cognizable in tort, but still seriously transgress constitutional limits."); see generally Jeffries,
supra note 5, at 1472-84 (discussing the propriety of monetary relief for various constitutional
violations).
24. Missouri v. Jenkins, 110 S. Ct. 1651, 1673 (1990) (Kennedy, J., concurring) (noting that
court-imposed taxing decisions "affect the life plans of local citizens, the revenue available for competing public needs, and the health of the local economy"). Professor Frug makes the most convincing argument that these costs are worth caring about. See Frug, supra note 5, at 741 ('The Court is
in fact allocating the budget away from those items, probably without even knowing what they are
....
[Tihe scarce resources allocated by government are largely allocated to people indistinguishable from those affected by the court orders.").
25. See, eg., Wygant v. Jackson Board of Education, 476 U.S. 267, 280-83 (1986) (plurality
opinion) (holding that a preferential-layoff scheme burdens innocent parties); United States v. Paradise, 480 U.S. 149, 182-83 (1987) (plurality opinion) (holding that the remedy did not impose an
unacceptable burden on innocent third parties); James Liebman, Implementing Brown in the Nineties: PoliticalReconstruction, LiberalRecollection, and Litigatively Enforced Legislative Reform, 76
VA. L. Rav. 349, 359 (1990) (describing how whites think desegregation inflicts burdens on "innocent" parents and children).
19921
conduct. 26 But it is altogether unclear how an injunction does anything

to compensate the victim for past harm. Thus, where the court's very
ability to compensate is uncertain, it is fair to ask whether a declaratory
judgment that rights have been violated is not remedy enough. Although
this remedy seems sparse, at least some commentary suggests that such
declaratory judgments are the only relief that is or should be available.27
The Supreme Court's approach to the process of remediation
reflects and exacerbates this theoretical uncertainty. Developed largely
in the context of the school desegregation cases, the Court applies a
three-part test to determine which remedies are appropriate: the remedy
must be determined by the nature and scope of the constitutional violation; the remedy must be "remedial" in nature; and in devising a remedy,
courts must "take into account the interest of state and local authorities
in managing their own affairs."' 28 In fairness to the Court, the criticisms
that will be leveled at each part of this test reflect to some degree the
inherent difficulty with the entire concept of remediation set out above.
The first prong essentially is a "fit" requirement: the remedy must fit
the right violated, exceeding it in neither scope nor nature. 29 But as the
Court's decisions suggest, defining the scope and nature of a violation is
itself an inherently subjective process, as likely to be resolved by concerns
about the breadth of the remedy as by any logical way of fitting remedy
30
to right.
The difficulties with the first prong can be seen in the Court's decisions in Milliken *V.Bradley. Milliken I"3 and Milliken 1132 involved
efforts to desegregate the Detroit metropolitan area schools, schools that
were "pervasively and persistently segregated" by actions of the state.33
In Milliken I the Court reviewed an order of the district court, affirmed
by the court of appeals, to implement an interdistrict remedy (i.e. to bus
26. This is a result of the Supreme Court's Eleventh Amendment doctrine. See infra notes 6970 and accompanying text.
27. See Fallon, supra note 4, at 46; Frug, supra note 4, at 792 n.411 (suggesting use of only
declaratory judgment and citing, inter alia, Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975));
Katz, supra note 4, at 723 (citing Powell v. McCormack, 395 U.S. 486, 517 (1969)).
28. Milliken v. Bradley, 433 U.S. 267, 280-81 (1977) (Milliken II); Milliken v. Bradley, 418
U.S. 717, 738 (1974) (Milliken I); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16
(1971).
29. Milliken II, 433 U.S. at 280; see also Fiss, supra note 4, at 46-50. Professor Fiss questions,
as do I, the coherence of the fit requirement.
30. See generally Chayes, Burger Court, supra note 4, at 47-51; Fletcher, supra note 4, at 65759 (stating that courts balance society's concerns with remedy against the right being remedied).
31. Milliken v. Bradley, 418 U.S. 717 (1974).

32. Milliken v. Bradley, 433 U.S. 267 (1977).
33. Id. at 282.
[Vol. 65:735
school children between primarily black Detroit and the primarily white
suburban districts). Without such a remedy involving the suburban area
schools, the lower courts found that the right to attend schools not segregated by state action "will go unremedied.' ' 34 Nonetheless, the Court
struck down the order on the ground that the proposed remedy exceeded
the scope of the violation: because evidence in the district court was limited to segregative state practices in the Detroit schools, a remedy that
involved other districts was held to be unjustified as beyond the scope of
the right violated.3 5 In Milliken II the Court reviewed an order, entered
by the district court on remand, that the school board develop and the
state help fund "educational components"-special "compensatory and
remedial programs" to eliminate the effect of segregation.3 6 The state
argued before the Court that such orders were unjustified: because the
only wrong that occurred was segregation, the only remedy permitted
was pupil reassignment. 37 The Court rejected this "scope related to the
violation" argument, because the remedy "does not 'exceed' the violation
if the remedy is tailored to cure the 'condition that offends the
Constitution.' "38
The Court's basis for distinguishing the remedies in the two Milliken cases is difficult to fathom. Just as in Milliken II, the remedy in
Milliken'l was "tailored to cure" the violation. Indeed, in Milliken I the
Court never even confronted the lower courts' unanimous finding that
without an interdistrict remedy the violation "would go unremedied." It
is difficult to conceive of a better tailoring job. Nor was the lack of evidence of segregation in the metropolitan school districts a sound basis for
rejecting the proposed remedy. The state was the guilty defendant, not
the school district; the state could simply redraw boundaries as necessary, 39 a remedy numerous other cases have approved when necessary to
correct a constitutional violation.' Nonetheless, the Court rejected what
34. Milliken I, 418 U.S. at 763 (White, J., dissenting) (emphasis added).
35. Milliken , 418 U.S. at 745.
36. Milliken II, 433 U.S. at 269.
37. Id. at 281.
38. Id. at 282 (quoting Milliken , 418 U.S. at 738) (emphasis in original).
39. Milliken I, 418 U.S. at 735-36; see also id. at 796 (Marshall, J., dissenting) (noting the
State's "wide-ranging powers to consolidate and merge school districts... [and] to transfer property
from one district to another"). Moreover, focusing on the nonculpability of the suburban schools
ignores the glaring point that because blacks in the area lived primarily in the inner city, segregative
activities in the suburban schools were simply unnecessary to avoid integration.
40. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) (affirming an order requiring reapportionment of unconstitutionally drawn state districting lines).
1992]
may have been the cheapest, 4 ' and perhaps the only effective, remedy on
"scope" grounds.4 2
The difficulty with the distinction made in Milliken I and Milliken
II is emphasized by the Court's decision in Hutto v. Finney.43 In Hutto
the Court reviewed a piece of the litigation involving Arkansas's prisons.
Specifically at issue in Hutto was a lower court order that, inter alia,
limited to thirty days the amount of time an inmate could be sentenced to
punitive isolation.' The lower court specifically found, and the Supreme
Court did not challenge, that confinement for more than thirty days was
"not necessarily unconstitutional, but it may be" depending on other
conditions.4 5 In light of Milliken I, it is no surprise that the state challenged this portion of the order as exceeding the scope of the constitutional violation. Nonetheless, the Court affirmed the order, holding that
because of the "long and unhappy history" of noncompliance with prior
orders, "the court was justified in entering a comprehensive order to
insure against the risk of inadequate compliance." 4 6
It is difficult to reconcile the decision in Hutto with the rules established in the Milliken decisions. Hutto approved a remedy that was specifically found not to address a constitutional violation4 7 while Milliken I
rejected a remedy that was found necessary to remedy a violation. After
Hutto and Milliken 1,one justifiably wonders whether the scope requirement has any coherent meaning.
The Court's second prong-that the remedy be "remedial"-fares
no better. On its face, the requirement is redundant and uninformative.
Of course a remedy should be "remedial"-but what exactly does remedial mean? The Court's decisions offer little guidance, except to suggest
that compensation (making the victim whole) is appropriate in some
41. See Milliken I, 418 U.S. at 813-14 (Marshall, J., dissenting) (suggesting that the interdistrict remedy would be more economical than a Detroit-only remedy since the former would require
the purchase of almost two-thirds fewer buses to transport students).
42. See Gewirtz, supranote 4, at 647 (indicating that Milliken I rejected more effective remedy
because the court gave "overriding weight to the suburbs' interest in 'local autonomy' ").
43. 437 U.S. 678 (1978).

44. Id. at 680.'
45. Id. at 685 (quoting Finney v. Hutto, 410 F. Supp. 251, 275 (E.D. Ark. 1976)).
46. Id. at 687.
47. See Chayes, Burger Court,supra note 4, at 53. The Court may have been sympathetic to
the prisoners living in prisons characterized as "a dark and evil world completely alien to the free
world." Holt v. Sarver, 309 F. Supp. 362, 381 (E.D. Ark. 1970), aff'd, 442 F.2d 304 (8th Cir. 1971).
Moreover, Hutto was a totality of conditions case, and totality cases may well require totality
decrees. Less clear is why the victims of discrimination and segregated schools in Milliken I were
less deserving of sympathy, or of an effective remedy, than prison inmates.
[Vol. 65:735
cases while emphasizing deterrence in others.48 The compensatory goal,

while consistent with Marbury, conflicts squarely with the Supreme
Court's interpretation of the Eleventh Amendment. 49 The Eleventh
Amendment, at least as it has been interpreted by the Court, prohibits

compensatory suits against the state. 50
It makes no sense to require that a remedy be compensatory and to
simultaneously bar compensatory relief. The Court has directed lower
courts to enter remedial orders "to restore the victims of discriminatory
conduct to the position they would have occupied in the absence of such
conduct.""
Such orders, however, are compensatory. Prospective
orders, which are all that the Eleventh Amendment (as interpreted by
the Court) permits,52 change conditions in the future; they do not remedy
past harms.
This problem becomes quite vivid when one considers the victim of
a segregated education. Although reducing this injury to money damages would pose some difficulty, the same is true in many tort cases in
which the courts have been able to reduce injuries to monetary damages.
Nonetheless, in this instance compensatory awards against the state are
forbidden. The Court's remedy, therefore, is a prospective order to
desegregate, but such orders often take years to achieve and thus do
48. CompareMilliken 11,433 U.S. at 283 (emphasizing elimination of the effects of prior segregation) with Griffin v. County Sch. Bd., 377 U.S. 218, 232-34 (1964) (emphasizing the need to deter
county from discriminatory practices).
49. See Edelman v. Jordan, 415 U.S. 651, 663 (1974) (holding that "a suit by private parties
seeking to impose a liability which must be paid from public funds" was barred by eleventh amendment). An excellent article on the "remedial preference" for injunctive relief is Christina Whitman,
ConstitutionalTorts, 79 MICH. L. REv. 5 (1980). On the conflict between Milliken and the Supreme
Court's Eleventh Amendment jurisprudence, see Fletcher, supra note 4, at 1120-22; Althouse, supra
note 20, at 1142.
50. Hans v. Louisiana, 134 U.S. 1 (1890). In Exparte Young, 209 U.S. 123, 158-59 (1908), the
Court held that despite the prohibition states could be sued for prospective injunctive relief. In
Edelman v. Jordan, 415 U.S. at 677, the Court emphasized that Young extends no further: federal
courts may not award compensatory damages against a state. Hans is difficult to square with the
language of the Eleventh Amendment, and there is an enormous body of commentary critiquing the
Court's Eleventh Amendment jurisprudence. See, eg., Althouse, supra note 20; Amar, supra note 5
at 1466-92; William Fletcher, A HistoricalInterpretation of the Eleventh Amendment: A Narrow
Construction of an Affirmative Grantof JurisdictionRather than a ProhibitionAgainst Jurisdiction,
35 STAN.L. REv. 1033 (1983) (criticizing.the Court's application of the prospective/compensatory
distinction); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign
Immunity, 98 YALE L.J. 1 (1988); Lawrence C. Marshall, Fighting the Words of the Eleventh
Amendment, 102 HARv. L. REv. 1342 (1989).
51. Milliken 11, 433 U.S. at 280.
52. See supra note 50.
1992]
absolutely nothing to compensate the high school student who brought

the suit. 3 The right is violated; there is no remedy.
The final prong of the Court's remediation test is flatly contrary to
the Marbury principle. The third prong instructs a court remedying a
constitutional violation to "take into account the interests of state and
local authorities in managing their own affairs." 4 But how much
account should be taken? After all, the state and local officials have violated constitutional rights, and that condition now is to be remedied. If
the remedy is to be complete, the court must ignore what evidently were
the settled wishes of state and local authorities. If their interests are to be
accommodated, some portion of the unconstitutional condition will
remain unremedied.55 In practice the third prong either serves as a
meaningless gesture to placate state and local officials or is invoked to
rob plaintiffs whose rights have been violated of an effective remedy. 6
Serious application of the tenet ubijus, ibi remedium would require
a strict congruence between right and remedy. Concededly, as indicated
above, defining such a congruence gives rise to difficult questions.
Rather than develop a body of decisional law that struggles with the
question of congruence, however, the Court has applied a three-part test
that is mushy at best and in direct conflict with the Marbury principle at
worst.
The effect of this vague and somewhat indeterminate three-prong
test is to permit courts to do pretty much what they want. For the
Supreme Court's part, this generally means leaving matters in the hands
of the lower courts. Sometimes the Court will take a case in which the
remedy seems particularly intrusive or unwarranted in light of the facts
and will reverse. But much more often the Court affirms the award of a
53. Liebman, supra note 25, at 359; see Nagel, StructuralInjunction, supra note 4, at 402
(noting that desegregation remedies do not place victims in the position the victims would have
"enjoyed but for" the violation; often victims have grown up by the time the remedy is implemented); cf.Chayes, Burger Court, supra note 4, at 39-40 (discussing how plaintiffs in public law
litigation class action "come and go").
54. Milliken II, 433 U.S. at 281.
55. Beermann, supra note 19, at 78-79.
56. Cf.Martin H. Redish, The Doctrine of Younger v. Harris: Deference in Search of a
Rationale, 63 CORNELL L. REV.463 (1978) (critiquing federalism language in Younger as without
specific content); Ziegler, supra note 4, at 684-89 (arguing that Younger invokes federalism only to
deny remedy).
[Vol. 65:735
particular remedy, or, as is most common, denies certiorari.5 7 Particu-
larly in the arena of institutional suits involving broad remedies, the

Court has been remarkably silent."5
The lower courts have been far more active. For many of them the
Supreme Court's three-prong test has been little obstacle to sweeping
relief.5 9 The remedial orders in many institutional suits-involving
schools, prisons, mental hospitals, and the like-have placed many state
institutions virtually under the control of federal district judges.'

These sweeping assertions of power on the part of the lower federal
courts have generated tremendous criticism and controversy. 6 1 In the
face of these sweeping remedial orders, commentators have voiced concerns about federal courts overstepping constitutional bounds. Commentators compare what courts are doing in these cases to what courts
"traditionally" do and find serious grounds to complain. According to
the commentators, lower federal courts in these cases are not acting like
57. See Frug, supra note 4, at 716 ("The Supreme Court has not yet reviewed any of the orders
that significantly increase government expenditures for prisons or mental institutions."); id. at 771;
Nagel, Structural Injunction, supra note 4, at 396-97 ("At present the Supreme Court is either
unwilling or unable to provide any effective restraint on the intrusions of the federal judiciary into
state and local government.") (footnote omitted).
58. But see Fletcher, supra note 4, at 664-88. Professor Fletcher has a more intricate (and
generous) view of Supreme Court review in these cases. He develops an elaborate argument about
the control of lower court discretion by Supreme Court decisions. Although he has much wisdom to
add to the subject, I am not-ultimately convinced. With regard to prisons, for example, Professor
Fletcher argues that "the political institutions are not malfunctioning or biased in as deep and systemic a fashion.., as in the apportionment and race cases" and that the Court has therefore narrowed the discretion federal judges may use in reforming prison systems. Id. at 665, 683-88. I
disagree on both counts. I believe that budget crunches have caused severe political bias against the
basic humanitarian needs of prisoners, see Friedman, supra note 4, and that judges in countless
jurisdictions are virtually running state and local prisons. In fairness to Professor Fletcher, however,
he wrote his primary work on this subject about a decade ago, and even then acknowledged-again
in the prison context-"[t]here have not yet been enough prison reform cases before the Court to
infer clear principles." Fletcher, supra note 4, at 688. Neither have there been many cases since. I
do agree wholeheartedly with Professor Fletcher that the Court can effect a remedy by "defining a
constitutional right narrowly," and I have discussed this theory in the prison context. See Friedman,
supra note 4, at 617.
59. See Chayes, Role of Judge, supra note 4, at 1284 (The "trial judge has increasingly become
the creator and manager of complex forms of ongoing relief."); Frug, supra note 4, at 718-19 (making arguments similar to Chayes's); Nagel, Structural Injunction, supra note 4, at 396 (More than
600 school districts, prisons in thirty states, and some 270 local jails are under federal judicial control as of 1984.).
60. Fletcher, supra note 4, at 640-41; Frug, supra note 4, at 716-17.
61. See generally Frug, supra note 4 (exploring the Supreme Court's efforts to place limits on
the lower courts' remedies that require significant, additional government expenditures); Mishkin,
supranote 4 (urging the federal courts to use restraint when acting as state reformers); Nagel, Remedies, supra note 4 (discussing how the separation of powers doctrine limits the federal courts' ability
to exercise legislative and executive power when ordering relief against state officials).
1992]
courts at all, but like legislative and executive officials.62 Citing separation of powers, federalism, and democratic principles, commentators
argue that federal judges should not be entering orders dictating the
minutiae of how institutions are run, orders that require legislative allocations of tremendous amounts of money.6 3
The obvious response to these objections is that there is simply a
conflict between these supposed principles and the entire concept of

rights. As discontent as one might be with federal court control of institutions, the rights violations at stake in many of these cases are not
pretty. In some school cases, African-American school children are still
attending segregated, inferior, dilapidated schools almost forty years
after Brown, far too long for any serious national conscience to tolerate. 64
Prior to federal intervention, penitentiaries in some states were hellholes
of violence, starvation, and terror that should have turned the stomach of
any person of ordinary sensibilities.6 5 Mental patients were tossed into
primitive institutions from which they never returned and where they
never had any hope of treatment.6 6 If the Fourteenth Amendment guarantees of due process and equal protection mean anything, these rights
violations should require some remedy.
62. See Frug, supra note 4, at 720 (noting that compliance with federal court orders requires
legislative and executive action); Nagel, Remedies, supra note 4, at 711 (arguing judicial remedies
should not displace legislative and executive decisions).
63. See, e.g., Nagel, Remedies, supra note 4, at 710 ("[E]xplicit detail in the decree often is
unnecessary to protect the constitutional right involved.").
64. See eg., James S. Liebman, Desegregating Politics: "All-Out School Desegregation
Explained," 90 COLUM. L. REv. 1463, 1465-79 (1990) (discussing places where desegregation is
"dead"). Of course, the Jenkins record stands testimony to the proposition in text.
65. See Pugh v. Locke, 406 F. Supp. 318, 322-28 (M.D. Ala. 1976), aff'd sub nor. Newman v.
Alabama, 559 F.2d 283 (5th Cir. 1977), rev'd in partsub nom. Alabama v. Pugh, 438 U.S. 781 (1978)
(per curiam) (describing conditions in Alabama prisons); Holt v. Sarver, 309 F. Supp. 362, 381 (E.D.
Ark. 1970) (characterizing Arkansas prisons as "a dark and evil world completely alien to the free
world"); Frank M. Johnson, The Constitution and the FederalDistrictJudge, 54 TEx. L. REv. 903,
907, 912 (1976).
66. See Johnson, supra note 65, at 908-09. Moreover, these were totality cases (i.e., the "totality of conditions" in the prison, rather than one specific condition, violated the Eighth Amendment).
Although one might disagree with the concept of a "totality" right, so long as the Supreme Court
recognizes such totality violations of the Eighth or Fourteenth Amendment, totality decrees will be
appropriate. See Robbins & Buser, supra note 4, at 920-21. Commentators-both liberal and conservative-have been quick to ridicule lower federal court orders that specified the number of
inmates per urinal or required a prison to have a licensed dietician on premises. Id. at 917-18 n.157.
But prior to entry of the federal court orders, prisoners and mental patients were sleeping in urine
and feces and dying from inadequate nutrition or health care. See Pugh, 406 F. Supp. at 323 (discussing unsanitary conditions); Holt v. Sarver, 300 F. Supp. 825, 832 (E.D. Ark. 1969) (discussing
inadequate nutrition); see generally Yackle, supra note 4, at 87 (describing the filth, feces, and urine
in the prison); Johnson, supra note 65, at 907 (discussing the lack of adequate medical care). More
importantly, state officials, despite numerous opportunities to seize control of the problem, declined
[Vol. 65:735
Despite this "obvious" answer, the Supreme Court has been quite
sensitive to stated concerns about the broad use of federal remedial
power. The Court frequently invokes the principle of local control
embodied in the third prong of its remediation test.6 7 Moreover, the
Court has put in place an entire web of immunities ostensibly for the very
purpose of avoiding undue federal court intrusion into state and local
affairs. 68 The Eleventh Amendment prohibits any monetary damage
suits against a state and prohibits a state from being sued in its own
to take any meaningful action. See Robbins & Buser, supranote 4, at 923; Johnson, supranote 65, at
914-16; Wayne McCormack, The Expansion of FederalQuestion Jurisdictionand the Prisoner Complaint Caseload, 1975 Wis. L. REv. 523, 536 (describing "Alabama Federal Intervention Syndrome"--the tendency for state officials to let courts handle their problems). Much of Professor
Fiss's excellent work on this subject is devoted to the role of the judiciary in light of "legislative
failure." See, e.g., Fiss, supra note 4, at 5-8; Fletcher, supra note 4. Prospective injunctive decrees,
especially in totality cases, do indeed look more like statutes than judicial orders. But when doctine
requires courts to act like legislatures, it should not surprise anyone when courts do so.
67. See Rhodes v. Chapman, 452 U.S. 337, 352 (1981) ("[C]ourts cannot assume that state
legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal
justice system."); see also Procunier v. Martinez, 416 U.S. 396, 404-05 (1974) (noting that courts are
not equipped to deal with complex problems of prison administration and reform and that "where
state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities"), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989).
68. It is here that the grand irony presents itself, for the very doctrines that purport to exist to
protect state interests actually jeopardize them the most. Once all the immunities are added up,
there is only one obvious course of action available to the federal district court confronted with a
state's widespread violation of federal rights. That is a prospective injunctive decrec. See Frug,
supra note 4, at 752-53 (noting that broad remedial orders are permitted because they are "prospec-
tive").
A number of commentators have offered suggestions as to why this remedial preference for
injunctions instead of damages makes sense with regard to suits against the state. They argue, inter
alia, that the limit on damages shows the proper respect for state prerogatives or reflects the unseemliness of a federal court emptying state coffers into individual hands, that if rights trump state prerogatives it is better to implement a broad social good such as desegregation by injunction rather
than giving damages to a limited number of plaintiffs, and that future relief is the correct balance
between remedying rights and legitimate state concerns about paying judgments. Often the arguments presume injunctive relief is less intrusive than an award of money damages. For examples of
such commentary, see Jackson, supra note 50, at 88-104; Althouse, supra note 20, at 1141-52; Fiss,
supra note 4, at 23-25; Whitman, supra note 49.
I believe these all are noble efforts, each with its grain of good sense, but ultimately I am unpersuaded. First, if everything these commentators argue were true, it would make sense to extend the
remedial preference to local governments, but local governments can be liable for money damages.
See infra note 69. Second, I think it is not generally true that prospective injunctive relief of the kind
awarded in the institution cases is necessarily less intrusive or less costly than awards of money
damages. Third, I am not even certain that money damages are less effective toward achieving
broader societal goals than prospective decrees. Consider whether Kansas City specifically, and the
State of Missouri generally, would not be more likely to remedy the rights violations addressed in
Missouri v. Jenkins if the state or local government had been liable for money damages to every
student whose rights were violated. There would be less room for defiance if the remedial scheme
were not as complicated as that required by prospective injunctive relief. (Of course, one argument
1992]
name.6 9 State and local officials can be sued to obtain prospective injunc-
tive relief, but even they are immune from money damages so long as
they act in good faith.7 0 Some officials, such as judges and prosecutors,
are absolutely immune.7 1
The Court's ambivalence toward remedying rights and solicitude

toward rights-violating officials is not limited to the context in which
state or local governmental officials violate constitutional rights. With

regard to constitutional torts committed by the United States, the Court
similarly has made clear that Congress, not the Court, defines remedies,7 2
thus placing remedial power in the hands of a majoritarian body. Moreover, and perhaps more interestingly, the same solicitude extends to con-
stitutional torts committed by federal officials.

The law concerning liability of federal officials is found in a line of
decisions beginning with Bivens v. Six Unknown Named Agents.
In Biv-
ens the Court was asked to determine whether the Constitution provided
a direct cause of action by which one could bring suit to obtain a remedy
for prospective injunctive relief might be to afford an opportunity for defiance. See infra notes 16971 and accompanying text.)
69. See infra note 70 and accompanying text. The bar to recovery for violation of constitutional rights is in no way complete. It is possible to overcome individual immunity. Perhaps more
importantly, local governments do not share in the Eleventh Amendment immunity of states. Local
governments can be held liable for violations of constitutional rights, Monell v. Department of Social
Services, 436 U.S. 658 (1978), and must even pay damages for violations committed in good faith if
the violations represent municipal policy. See Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).
The Court's immunity, municipal liability, and Eleventh Amendment jurisprudence create an interesting liability structure that is, unfortunately, beyond the scope of this Article. I do not believe,
however, that the availability of relief from certain quarters under certain circumstances undermines
the general conclusions of this Article, although the Court's decisions would provide an interesting
subject for discussion in the context of the arguments made here.
70. Edelman v. Jordan, 415 U.S. 651, 668 (1973); Scheur v. Rhodes, 416 U.S. 232, 247-48
(1974).
71. Pierson v. Ray, 386 U.S. 547, 553-55 (1967).
72. Federal Tort Claims Act, 28 U.S.C. 2679(a) (1988); see also Kosak v. United States, 465
U.S. 848, 862 (1984) (stating that Congress, not the Court, should be addressed to extend the remedy
under 2680(c) of the FTCA); United States v. Muniz, 374 U.S. 150, 165-66 (1963) (holding that
the Court will not narrow the remedies provided in the FTCA because only Congress can alter the
Act); Rayonier Inc. v. United States, 352 U.S. 315, 320 (1957) (same).
73. 403 U.S. 388 (1971). Referring to the Second Circuit's decision in Bivens and the question
of constitutional remedies, Professor Hill once wryly observed, "Though not of great practical
importance, the subject is nevertheless of considerable interest." Hill, supranote 4, at 1111. Writing
after the Supreme Court's decision in Bivens, however, Professor Dellinger opined that the concept
of affirmative constitutional actions against government raise questions "which are among the most
far-reading in the whole field of civil and other liberty." Dellinger, supra note 4, at 1533 (quoting
Henry M. Hart, The Relations Between State and Federal Law, 54 COLUM. L. REv. 489, 522
(1954)).
[Vol. 65:735
for violations of constitutional rights by federal officials. The Bivens

Court began a new era by holding that such a cause of action existed. 4
What is interesting about Bivens is not its holding but the caveat
that the Court attached. After all, the tenet ubijus suggests there must
be a way to ensure vindication of rights violations by federal officials.
The Bivens Court, however, did not unequivocally approve the implied
cause of action. Rather, in language that later proved significant, the
Court implied the cause of action only because (a) there were no factors
counseling hesitation in the absence of an explicit congressional creation
of a cause of action, and (b) Congress had not provided an alternative
remedy that the Court believed to be adequate."
This caveat seems inconsistent with the Marbury principle. Under
Marbury, rights are for the court to decide, and if rights are violated, the
law must accord a remedy.7 6 One would think, then, that the very same
folks that define the rights ought to be in charge of spelling out the
remedy."
Otherwise-to fall back on the language of the
countermajoritarian approach-rights countermajoritarian in nature
could be defeated simply by the majoritarian branches denying a remedy
for rights violations.
Nor has the Bivens caveat proven to be mere lip service to the
authority of a coordinate branch. Instead, the Court has actually
deferred to Congress's judgment that a statutory remedy is adequate,
even in cases where the plaintiff could not be made "whole" due to statutory limitations.7" Indeed, the Court has even deferred to a statutory
remedy in a case in which the plaintiff apparently was denied any remedy
79
for the constitutional portion of her complaint.
Thus, despite continued lip service to the Marbury principle, the
Supreme Court's remedial jurisprudence paints quite a different picture.
74. See Bivens, 403 U.S. at 391-97; see generally Nichol, supra note 4, at 1118-19 (stating that
twenty-five years after "false start," Bivens gave rise to damages claim for constitutional violation).
75. Bivens, 403 U.S. at 396-37; see generally Nichol, supra note 4, at 1142-53 (discussing
Court's limitations on Bivens remedy).
76. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803); see also Cooper v. Aaron, 358
U.S. 1, 18 (1958). Of course, Marbury's rights never were remedied either. See supra note 9 and
accompanying text.
77. See Nichol, supra note 4, at 1124 ("lit would seem to be of little consequence what Congress thinks of the matter.").
78. See Bush v. Lucas, 462 U.S. 367, 372 (1983) (holding congressionally prescribed remedy
adequate, even though it "did not fully compensate [plaintiff] for the harm he suffered").
79. Schewicker v. Chilicky, 487 U.S. 412, 421-23 (1988); see generally Nichol, supra note 4, at
1148 (remarking that in Chilicky no remedy was accorded for constitutional violation).
1992]
Both in theory and in application the principle is met with vague remedial standards that readily give way to the prerogatives of rights-violating
governments and their officials. As the next section demonstrates, this
ambivalence toward the ubijus principle is not limited to remediation but
is present at the enforcement stage as well.
B.
THE ENFORCEMENT OF REMEDIES
There is a paucity of law regarding the lengths to which a federal

court may go to enforce a remedial decree. There are some sparse rules
governing the use of contempt; for example, a court imposing a contempt
sanction must use the least possible pressure necessary to obtain compliance.8 0 In addition, in the context of the school desegregation cases, the
Supreme Court has suggested that lower courts may strike down or
ignore state laws that interfere with implementation of the decree.8 1 The
Court has even hinted that a lower federal court could order local officials to raise taxes.82 Until this past Term, however, the development of
law and strategies for enforcement has been left largely to the lower
courts.
The lower courts have taken a highly political approach to the problem of getting remedies enforced.8 3 On its face this approach adheres to
the Marbury principle, but in practice it is highly sensitive to
majoritarian constraints. On the surface courts appear to be pursuing a
policy of "here is the remedy; comply." In reality, however, courts are
cognizant of, and responsive to, the political environment in which they
84
operate.
80. See Spallone v. United States, 493 U.S. 265, 272 (1990) ("A court must exercise '[t]he least
possible power adequate to the end proposed.' ") (quoting United States v. Yonkers, 856 F.2d 444,
454 (2d Cir. 1988)).
81. See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443
U.S. 658, 695-96 (1979) (stating that federal courts have the power to "displace local enforcement of
those orders if necessary to remedy the violations of federal law found by the court").
82. Griffin v. County Sch. Bd., 377 U.S. 218, 233 (1964) ('T]he District Court may, if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is
theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system... like that operated in other countries.").
83. See Fiss, supranote 4, at 50-58 (suggesting that remedial phase casts the judge in a political
role, threatening judicial independence and thus legitimacy). Dean (then Professor) Diver has provided a well developed and expressly political description of institutional litigation. His article is
fascinating reading for any student of the field. Dean Diver presents his theory by contrasting an
adjudicative and bargaining models of litigation. See Diver, supra note 4.
84. See Denvir, supra note 4, at 1134 ("Public interest litigation always takes place in a political context."); Diver, supra note 4, at 45 (referring to the "explicitly political dimensions of litigation"); see also Weinstein, supranote 4, at 146 (noting that "even the once-powerful King of England
had to bow to Parliament's fund-raising powers; no judge will ignore the central reality that it is the
[Vol. 65:735
In attempting to ensure that remedies are enforced, lower courts

have demonstrated tremendous creativity. They have relied on the traditional approach of appointing "masters" to oversee the remediation of an
institution, 5 but they also have set up citizens' committees16 or blue ribbon panels of experts to do the same. 7 Courts have appointed receivers
to take over state functions altogether,8" and in one instance a court
appointed the state governor as temporary receiver of a State Board of
Corrections so that he could bring state prisons into compliance with a
court order.8 9 Courts have also devised educational programs, 90 ordered
construction of new buildings, 9 1 hired state officials,92 and even raised
93
taxes.
In addition to employing such creative approaches, lower courts
have utilized carrot and stick techniques, together with accompanying

negotiations, to see that remedial orders are enforced. This is not at all
how one thinks of courts, as entering an order and then negotiating to see
legislature and the public, not the courts, which raise funds and decide how they are spent."). Weinstein's article discusses the trial court's apparent posture that lack of appropriations would not
excuse a failure to implement a remedy. Id.; see also Fletcher, supra note 4, at 637-38 & n.10 (chronicling judicial use of news media in an institutional suit).
85. Mishkin, supra note 4, at 966 n.65. For one particularly innovative use of masters,
although ultimately a use that had little practical result, see Berger, supra note 4.
86. See Chayes, Role ofJudge, supra note 4, at 1300-01 & n.87; see generally (and critically)
Nagel, StructuralInjunction, supra note 4, at 403-404 (expressing concern over bias of citizens'
committees).
87. Such committees were a favorite of Judge Frank M. Johnson, Jr. See Wyatt v. Stickney,
344 F. Supp. 373, 376, 386, (M.D. Ala. 1972); Wyatt v. Stickney, 344 F. Supp. 387, 392, 407 (M.D.
Ala. 1972); Newman v. Alabama, 466 F. Supp. 628, 638 (M.D. Ala. 1979) (ordering the appointment of a person or persons experienced in the management of correctional facilities to assist in
implementing a previous order). The Fifth Circuit ultimately reversed the use of such committee(s).
Newman v. Alabama, 559 F.2d 283, 288-90 (5th Cir. 1977).
88. Nagel, Remedies, supra note 4, at 722 n.302.
89. Newman v. Alabama, 466 F. Supp. at 639.
90. See, eg., Milliken v. Bradley, 433 U.S. 267, 283-88 (1977) (Milliken II).
91. Hamilton v. Landrieu, 351 F. Supp. 549, 550 (E.D. La. 1972) (ordering construction of
new prison hospital).
92. Pugh v. Locke, 406 F. Supp. 318, 331-32 (M.D. Ala. 1976) (ordering appointment and
compensation of "Human Rights Committee" with power to engage other consultants and staff
necessary to perform its function of monitoring implementation of minimum constitutional standards for inmates in Alabama penal system); see also New York State Ass'n for Retarded Children v.
Rockfeller, 357 F. Supp. 752, 769 (E.D.N.Y. 1973) (ordering increase in staff and an increase in
wages offered to new recruits).
93. See infra notes 111-43 and accompanying text. Despite sometimes questioning the steps
that lower courts have taken, the Supreme Court has undoubtedly anticipated such conduct on the
part of lower courts. In Swann the Court issued its first serious statement on desegregation remedies
and their enforcement when it acknowledged that Brown had provided a broad mandate with little
guidance as to how to carry out enforcement and remedies. "Understandably, in an area of evolving
remedies .... courts had to improvise and experiment without detailed or specific guidelines."
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 6 (1970).
1992]
if the order will be carried out. But courts have done just that.94 They
have employed grand threats, including threats to jail recalcitrant public
officials,9 5 release prisoners from overcrowded jails,9 6 and close noncompliant public institutions.97 And in the face of good-faith attempts to
comply, courts have also used carrots-including a willingness to consistently reevaluate and modify decrees if necessary to keep the compliance ball rolling. 98 Thus, the fear engendered by uncertainty as to
whether federal courts would make good their threats, as well as the
prospect of their reward for good-faith efforts, has convinced state officials to attempt compliance rather than risk the consequences of
defiance.
The district courts have been particularly savvy with regard to the
concept of "political heat." I refer here to the notion that in politics a
body taking some unpopular action bears the cost for the action it takes.
Popular cant holds that courts are outside this loop and insulated from
normal politics.9 9 This is only partially true, however; for example, no
amount of insulation can completely protect a judicial system that is

releasing inmates into the community. Thus, courts will sometimes
refuse to take otherwise effective actions to remedy problems or redress
rights, in order to avoid undue political heat." By the same token, however, courts recognize that they have a somewhat greater ability to
absorb popular fury than other political actors. Federal judges do not
stand for popular election and political actions hostile to courts take
some time to fall into place. Therefore, there are instances where courts
intentionally take political heat. They will sometimes purposefully take
94. See Chayes, Role ofJudges, supra note 4, at 1300 & n.85; Weinstein, supra note 4, at 149;
Coffin, supra note 5, at 987-88. For Dean Diver, this bargaining by courts defines an entirely new
model of adjudication-a bargaining model. Diver, supra note 4, at 64-88.
95. See Spallone v. United States, 493 U.S. 265, 268-73 (1990) (holding city officers in contempt for refusing to enact legislation to effect desegregation); Ex parte Young, 209 U.S. 123, 126
(1908) (jailing State attorney general for contempt).
96. Newman v. Alabama, 683 F.2d 1312, 1320-21 (11th Cir. 1982) (finding the district court
order releasing specific prisoners defective and, stating that the court should just have set prison
population limits, thus avoiding impermissible intrusion into the operation of state prison and parole
systems). See generally Yackle, supra note 4, at 206-11 (discussing release of Alabama prisoners).
97. Hirschhorn, supra note 4, at 1849-51. Professor Hirschhorn's work is a comprehensive
study of enforcement tools available to federal judges.
98. See, eg., Yackle, supra note 4, at 21-22 (describing Judge Johnson's actions in this regard);
Spallone, 493 U.S. at 268-77 (describing the district court's efforts to secure an agreement with city
as to compliance with remedial orders); Coffin, supra note 4, at 988 (describing a willingness to
consider compliance proposals).
99. But see Girardeau A. Spann, Pure Politics, 88 MICH L. Rav. 1971 (1990) (arguing that
courts are majoritarian and not necessarily responsive to minority claims).
100. See infra note 101; see Yackle, supra note 4, at 176-77 (discussing Judge Johnson's refusal
to release prisoners in Alabama prison litigation).
[Vol. 65:735
unpopular yet necessary action in order to get the majoritarian branches

off the hook and put a remedial scheme in place."
If the enforcement activities of the lower courts could be summed
up in one word, it would be flexibility. The judges on the front line of
remediation efforts appear to take seriously the need to see that rights
violations are remedied. Nonetheless, their proximity to and interaction
with the majoritarian bodies that actually must implement remedies has
caused expediency to go hand in hand with enforcement.
So much for the lower federal courts. The political tool that the
Supreme Court most often utilizes at both the remedial and enforcement
stages is doing nothing. 2 While the Court does nothing, lower federal
courts steam ahead, finding new rights and entering novel remedial
orders. This permits the Court an opportunity to assess popular reaction
to the activity of the lower courts. If little negative reaction is stirred, the
Court may remain mum. If significant hostility to the lower courts'
remedial orders develops, however, the Court can step in. Thus, the
Court can let the process proceed and act only to diffuse any significant
political hostility. 10 3
Last Term, however, the Court issued two important decisions
about enforcement of remedial decrees. The opinions in the Kansas City
and Yonkers cases reflect the tension between the desire for prompt
enforcement and the political realities of the extrajudicial world. In Missouri v. Jenkins 1 4 and Spallone v. United States,10 the Court focused on
the necessity of compliance with remedial decrees and the extremes to
101. Mishkin, supra note 4, at 958 (arguing that courts can insulate political branches from
political accountability by decreeing action that elected officials might favor but that voters might
disapprove). In this regard, compare the actions of Judge Frank Johnson and Judge Robert Varner
in the Alabama prison litigation. Both faced the issue of whether to release prisoners to eliminate
overcrowding in the prisons. Judge Johnson refused to take the heat for this action and left the ball
in the legislative and executive court. Judge Varner, however, saw that he had to take the heat if
prisoners were to be released. See generally Yackle, supra note 4, at 175-77 (discussing Johnson's
refusal to release prisoners); id. at 196-221 (discussing Varner's release of prisoners); Friedman,
supranote 4, at 608-10. See supranotes 100-102 and accompanying text for a discussion of political
heat and whether courts necessarily should "take the heat."
102. For example, the Court has taken very few of the controversial institution cases at any
stage-right, remedy, or enforcement. See supra note 58 and accompanying text. Because of the
Court's tremendous caseload, it may be fanciful to make too much of its denying certiorari in many
of the institutional cases. Nonetheless, there is political advantage to a "lie low" strategy. See infra
note 103 and accompanying text.
103. The technique is not unlike letting an agent negotiate and make all possible progress, with
the principal waiting to step in if things go awry.
104. 110 S. Ct. 1651 (1990).
105. 493 U.S. 265 (1990).
1992]
which a lower federal court could go to ensure such compliance. In addition, both decisions acknowledged the possibility of defiance and popular
political rejection of the judicial decrees at stake.
In each of these "federal-state" cases the only issue was enforcement. In Jenkins the Court denied certiorari as to any question other
than the order to raise taxes to fund the remedy.10 6 In Spallone the remedy was ordered pursuant to a consent decree, but the defendants then
balked; l0 7 the issue before the Court was the extent to which contempt
powers could be used to enforce the decree.
There were a number of atmospheric similarities between the cases
as well. The Court decided each case by a narrow five-four vote.108 In
both cases the parties raised the separation of powers, federalism, and
democratic principles arguments that are typical in the face of bold judi-
cial activity. The court purported to avoid the constitutional question in

each case, ostensibly deciding the issue on narrower grounds. 0 9 In each
case the decision of the majority rested on a fragile distinction ridiculed
to some extent by the disagreeing Justices. 110 Finally, in each case there
was a good amount of superficial merit to that ridicule: The distinction
did seem silly, at least on the grounds offered by the majority. Nonetheless, in each case the distinction provides an important lesson as to the
nature of remedial authority.

106. Jenkins, 110 S. Ct. at 1655.
107. Spallone, 493 U.S. at 272.
108. Jenkins, 110 S. Ct. at 1655 (White, J., delivered the opinion of the Court in which Brennan,
Marshall, Blackmun, and Stephens, JJ., joined; Kennedy, J., joined by Rehnquist, C.J., and
O'Connor and Scalia, JJ., filed an opinion concurring in part and concurring in the judgment); Spallone, 493 U.S. 265 (Rehnquist, C.J., delivered the opinion of the Court, in which White, O'Connor,
Scalia, and Kennedy, JJ., joined; Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., filed a
dissenting opinion). One may speculate whether the Court, with the substitution of Justice Souter
for Justice Brennan and Justice Thomas for Justice Marshall, would reach the same result today.
109. See Jenkins, 110 S. CL at 1669-70 ("We find it unnecessary to reach the difficult constitutional issues, for we agree with the state that the tax increase contravened the principles of comity
that must govern the exercise of the District Court's equitable discretion in this area."); Spallone,
493 U.S. at 304 ("We find it unnecessary to reach either of these [constitutional] questions [raised by
petitioners], because we conclude that the portion of the District Court's order... imposing contempt sanctions against petitioners . . . was an abuse of discretion under traditional equitable
principles.").
110. See Jenkins, 110 S. Ct. at 1656 (Kennedy, J., concurring in part and concurring in the
judgment) ("[Alny purported distinction [by the majority] between direct imposition of a tax by the
federal court and an order commanding the school district to impose the tax is but a convenient
formalism .... "); Spallone, 493 U.S. at 304 (Brennan, J., dissenting) ("Mhe Court's pronouncement that fining the city is categorically less intrusive than fining the legislators personally is
untenable.").
[Vol. 65:735
Missouri v. Jenkins involved a class action to eliminate the vestiges

of Missouri's de jure segregation of schools in the Kansas City Metropolitan School District (KCMSD). 1 ' The state conceded de jure segregation, and the district court found that such segregation had an extremely
negative impact on the KCMSD schools.'" 2 With the rights violation
established, the court attempted to devise an appropriate remedy.
The circumstances in the KCMSD case represent a familiar spiral.
Court-ordered desegregation caused white flight. White flight caused a

withdrawal of support for taxation to fund public education. The
schools, lacking funds, deteriorated, driving more and more students
out
3
of the city schools and into private or suburban public schools."
In order to combat the lingering effects of segregation and white
flight, the district court ordered sweeping relief. The Court initially gave
the state an opportunity to tailor the remedy. When that failed, the court
proceeded to draft plans with recommendations from the defendants.

The grand strategy was essentially to turn KCMSD into a "magnet" dis-
trict: by making the city schools as good as, if not better than, those in
the suburbs, the district court hoped not only to improve the quality of
the schools-directly attacked by the litigation-but also to lure back
whites who had fled to the suburbs and further desegregated the
schools.'
14
The remedy ordered by the district court was enormously complex

and costly.'1 5 The state appealed various aspects of the district court
orders to the Eighth Circuit, with little success.11 6 The Supreme Court
17
refused to issue a writ of certiorari.'
111. Jenkins, 110 S. Ct. at 1656 & n.2.
112. Jenkins v. Missouri, 855 F.2d 1295, 1300 (8th Cir. 1988), aff'd in part and rey'd in part,
110 S.Ct. 1651 (1990).
113. See id. ("The district court found that segregation in KCMSD caused the departure of the
whites in the system to private schools and to the suburbs."). Note that the court refers to "segregation," not "desegregation," as the cause of white flight, a view that is questionable at best.
114. See id. at 1302 ("IIThe proposed magnet plan is so attractive that it would draw nonminority students from the private schools who have abandoned or avoided the KCMSD, and draw
in additional non-minority students from the suburbs.").
115. Original estimates of the total cost of the remedy approached $88 million for a three-year
period. Missouri v. Jenkins, 110 S. Ct. 1651, 1656 (1990). In 1986 an expansion of the magnet
school program required a budget of $142,736,025 plus an additional $52,858,301 for capital
improvements. Id. at 1657. Three months later a plan was adopted requiring $187,450,334 in additional capital improvements. Idt at 1658.
116. See Jenkins v. Missouri, 855 F.2d at 1301-15 (affirming scope of desegregation order, allocation of costs between the State and KCMSD, and property tax increase); Jenkins v. Missouri, 807
F.2d 657, 684-85 (8th Cir. 1986) (en bane) (affirming findings of liability and remedial order, but
ordering cost equally divided between the State and KCMSD), cert. denied, 484 U.S. 816 (1987).
117. Kansas City, Mo., Sch. Dist. v. Missouri, 484 U.S. 816 (1987).
1992]
Funding the decree was even more difficult than devising its terms.
Certainly KCMSD could not pay. The district court initially imposed
most of the cost on the state, but the Eighth Circuit reversed, requiring
the district court to consider ways to shift costs to KCMSD.118 The district court on remand continued to place seventy-five percent of the cost
on the state, on the theory that "the person who starts the fire has more
responsibility for the damages caused than the person who fails to put it
out."1' 19 Funding KCMSD's twenty-five percent of the decree still
presented a problem, however, which the district court solved by devising the plan that ultimately caused the uproar. The district court
ordered a tax increase.
The portion of the tax plan that survived scrutiny in the Eighth Circuit and ultimately made its way to the Supreme Court involved raising
the property taxes of KCMSD residents in order to fund KCMSD's portion of the decree.12 0 Tax increases had previously been submitted to the
voters on numerous occasions, often at the court's behest, but were
defeated, largely due to the state's supermajority voting requirements for
tax increases. 2 The district court solved the problem by ordering an
increase in property taxes and enjoining any state laws that interfered
with the scheme. 2 2
The state appealed. 2 3 The state challenged the tax increase on a
1 24
number of grounds and also challenged the sweeping remedy imposed.
The Eighth Circuit affirmed in all respects relevant here-striking down
only an income tax surcharge the district court had also imposed. Nonetheless, the Eighth Circuit expressed concern that the district court's tax
levy raised difficult questions of federal-state comity; in order to avoid
these issues, the Eighth Circuit modified the district court's order prospectively so that rather than raising taxes, the decree merely compelled
local authorities to set the levy at whatever was necessary to fund the
118. Jenkins v. Missouri, 807 F.2d at 685-86.
119. Jenkins v. Missouri, 855 F.2d at 1308.
120. Missouri v. Jenkins, 110 S. Ct. 1651, 1658-59 (1990).
121. The Missouri Constitution requires approval by a two-thirds majority of voters to raise
local property taxes above $3.25 per $100 of assessed valuation. Id. at 1656 & n.5. A majority was
obtained on one occasion in 1969. Id.
122. Jenkins v. Missouri, 672 F. Supp. 400, 411 (W.D. Mo. 1987) (noting that tax levy increase
proposals were rejected by voters in four separate elections in 1986 and 1987) aff'd in part and rev'd
in part, 855 F.2d 1295 (8th Cir. 1988), aff'd in part and rev'd in part, 495 U.S. 33 (1990).
123. Jenkins, 110 S. Ct. at 1658. A group of local taxpayers also appealed the district court's
denial of their applications to intervene. Id. The Eighth Circuit upheld the denial of intervention.
Id.
124.
Id.
[Vol. 65:735
decree and enjoined any state laws that interfered with their ability to do
SO. 125
The state petitioned for certiorari, and the Supreme Court granted
review. The state challenged the tax levy essentially on federalism and
separation of powers grounds. The state argued that district courts may
never raise taxes and that the district court in this case instead should
have ordered the state to pay the full cost of the decree. 126
In a relatively brief and cursory majority opinion that seemed to
deal with none of the policy issues or constitutional concerns raised by
the state and the four disagreeing Justices, the Court essentially upheld
the courts below. The Court found it unnecessary to reach the constitutional questions because it held that the district court's levy was in conflict with principles of comity. 127 Nonetheless, the Court upheld the
order as amended by the Eighth Circuit: the district court could not raise
taxes but could order state and local authorities to do S0. 128 Although
the Court's reasoning was thin, it essentially took the position that rights
require remedies; state laws may have to give way, and state officials may
12 9
even be ordered to collect taxes to see that the remedy is enforced.
Justice Kennedy authored a strongly worded "concurrence"-in
effect a dissent-which represented the ffip side of the majority's opinion.130 The focus of Justice Kennedy's opinion was on the constitutional
doctrines that he felt should limit a federal court from ever raising
taxes."' Justice Kennedy acknowledged the problems this view caused
with regard to remedying rights. His solution essentially was to attack
the scope of the remedy fashioned by the district court-a question the
132
Court specifically had declined to review.
125. Jenkins v. Missouri, 855 F.2d at 1314.
126. Jenkins, 110 S. Ct. at 1659.
127. Jenkins, 110 S. Ct. at 1662-63.
128.
Id. at 1666.
129. See id. ("It is therefore clear that a local government with taxing authority may be ordered
to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution
cf. id. ("Even though a particular remedy may not be required in every case to vindicate
.);
constitutional guarantees, where (as here) it has been found that a particular remedy is required, the
State cannot hinder the process by preventing a local government from implementing that
remedy.").
130.
Id. at 1667 (Kennedy, J., concurring).
131.
See id. ("[The majority's] casual embrace of taxation imposed by an unelected, life-tenured
federal judiciary disregards fundamental precepts for the democratic control of public institutions.").
132. Id. at 1676-77 (attacking the scope of the remedy); id. at 1678 (holding that the scope of
remedy falls outside the limited grant of certiorari).
1992]
Underlying Justice Kennedy's opinion was the view that the distinction on which the majority opinion rested-between a federal court levying taxes itself and ordering local officials to do so-is meaningless. To
the majority, this distinction was determinative; one was permissible, the
other was not. 133 To Justice Kennedy, however, this was folderol: the
1 34
Court had approved a judicial tax increase, plain and simple.
Unless one is to exalt form over substance, it seems difficult at first
blush to quibble with Justice Kennedy on this point.1 35 In order to see
this difficulty, one need only analyze why federal judges should not raise
taxes, at least from the traditional view. When federal judges raise taxes
they intrude upon one of the most sensitive functions of majoritarian
government. Raising taxes for one purpose may well limit the ability of
the state or local government to come up with funds for other purposes.' 36 Budgetary and tax issues are core functions of the legislative
branches, and even from a formalistic originalist perspective, the role of
raising taxes seems explicitly allocated to the elected branches-indeed,
generally to the most majoritarian branch in the first instance. 37 How
does any of this differ simply because, rather than saying to the populace,
"Your property tax levy is increased from $1.30 to $4.50," the court says
to the tax assessor, "Collect and turn over to me an assessment necessary
to fund this decree"?
Nonetheless, for all its seeming silliness, 31 the distinction relied
upon by the majority may make all the difference in the world from the
perspective of the Marbury principle-seeing that rights are actually
remedied. Indeed, it is surprising that Justice Kennedy missed this, for
133. See id. at 1665-66.
134. Id. at 1669-70.
135. There is one important way to quibble with Justice Kennedy: the lower court's action in
Jenkins might have been viewed as nothing more than an injunction against state laws that stood in
the way of implementing a tax increase the local school board wanted to impose anyway. If so, two
consequences follow. First, Jenkins then looks a good deal more like Griffin v. County Sch. Bd., 377
U.S. 218 (1964), and a lot less like a federal court imposing a tax increase on an unwilling local body.
Second, the entire dispute could then be viewed as a conflict not between federal courts and
majoritarian bodies but between local and state officials, with local officials using the federal court
proceedings to further their own agendas.
136. See supra notes 24-25 and accompanying text.
137. See U.S. CONST., art. I, 7, cl. 1. See generally Frug, supra note 4, at 740 (discussing
constitutional allocation of the power to both raise and allocate money to legislative branch).
138. Ann Althouse made the point tome that the distinction is not "all that silly" if the goal of
the court is to make local officials "'fess up" (my expression) to the cost of their misconduct. I
agree, although I think this rationale explains Spallone somewhat better than Jenkins. Absent a
concern for enforcement, the Jenkins majority's distinction seems extremely formalistic and unlikely
to convince anyone of the wrongfulness of their ways. Perhaps it does, however, force those officials
to "take the heat." See supra notes 99-101 and accompanying text.
[Vol. 65:735
although the majority failed to discuss any problem with tax-raising by

federal courts, Justice Kennedy spent substantial time explaining the
impossible position of a district court that has raised taxes and must then
actually collect them.1 39 He is correct. What if the citizens balk? Does
the district court go door-to-door? More likely the district court relies
on the federal executive to step in with force and collect the taxes. Not
only would such resort to force be unfortunate, it is not an event that a
district court can even rely upon to occur.
A much better solution, if raising revenue ultimately is required, is
to order someone else to do the job. Simply tell state and local tax officials that they must come up with a certain amount of money and let
them set the levy and collect the taxes. If the collectors are willing, but
the populace is not, state (rather than federal) law is available to coerce
compliance. If the collectors balk, enforcement is easier-simply throw
them in jail or fine them until they comply. These are acts the district
court is far more likely to be able to enforce. Thus, ease of enforcement
is the key to understanding Jenkins. The goal was to pick an enforcement mechanism most likely to work.
Contempt sanctions-fine and jail-generally are regarded as the
most familiar tools to ensure compliance with district court orders,"
and with good reason. As noted above, district courts have been remarkably creative in devising ways to get their remedies enforced. But tools
such as selling state lands or raising taxes are risky propositions: if the
state resists, it is unclear what the district court can do. Although fines
and jail are not foolproof, I would suggest they are "most familiar" simply because they are surer bets to obtain compliance.
The Court's approach has one other advantage, an advantage relating to the political-heat consequences of the two alternatives discussed in
Jenkins. From the perspective of the voters, taxes are being raised. It is
worth wondering whether voters would react under both scenarios by
blaming the federal courts; it is possible (although one might question
how possible) that under the majority's resolution voters would blame
not the courts, but local officials. Because the majority requires local
officials to do the actual raising of taxes, perhaps they-and not the dis1
trict court-would take the heat for the increase.14
139. Jenkins, 110 S. Ct. 1672-73; see also Hirschhorn, supranote 4, at 1838-41 (discussing executive difficulty in implementing programs pursuant to judicial decree when the legislature refuses to
provide funds).
140. Hirschhorn, supra note 4, at 1826.
141. By the same token, the Court could have even further insulated the federal judiciary from
the taxation issue by instructing the district court simply to order the defendants to present a plan to
1992]
Despite the fact that Jenkins may be explained as arriving at a solution that "works" in ensuring enforcement of remedial measures, the
Court's decision also contains undertones that run contrary to the Marbury principle. If ensuring remedial enforcement were the Court's only
concern, the Court failed to adequately consider a better alternative. The
Court could have adopted the state's position that the state should be
made to foot the entire bill rather than raising taxes in the local school
district. This position presents problems, as the majority noted, such as
the state balking. 4 2 But after the state took the position it did, a court
interested only in enforcing constitutional remedies could have ordered
the state to make good on its word.
The Court's middle course is less effective because it opens up one
enforcement problem that could undermine achievement of a remedy:
what if the defendant tax officials fail to comply? They might be jailed,
but what if they just quit their jobs? That after all is what happened in a
number of the old bond cases, the significance of which was the subject of
intense debate between the split court.14 3 In the face of broad defiance, is
the federal judiciary then as hopeless as the old cases suggest? The Spallone case, discussed next, hints at a somewhat surprising modem answer
to this question.
Spallone v. United States 14 involved an action by the United States,
joined by the NAACP, alleging that the city of Yonkers had engaged in a
pattern and practice of intentional housing discrimination in violation of
the Constitution and federal statutes. 145 In a strongly worded opinion
the district court agreed, finding the city guilty of a "consistent and
extreme" pattern of racial discrimination." 46 The district court then
fund the judicial decree. If defendants did not comply by presenting a workable plan, they could be
held in contempt, another advantage of which is that such orders most likely are not be subject to
immediate appeal because they are neither final nor injunctive. See 28 U.S.C. 1291 (1988);
Mishkin, supra note 4, at 970 ("More indirect techniques might help to avoid the stark confrontation."); Frug, supra note 4, at 790 (also suggesting that the court put the onus of devising a remedial
plan in the hands of state officials); Diver, supra note 4, at 82-86 (recommending that the parties
draft the initial plan); Fletcher, supra note 4, at 652-54. Of course, the district court is still effectively raising taxes, but this cannot be avoided unless one accepts a very different remedy. The
decision to adopt a more direct technique, though, does reinforce the importance of the Marbury
principle.
142. See Jenkins, 110 S. Ct. at 1664 (noting the state's earlier opposition to efforts by the district
court to impose the costs on the state of implementing the order).
143. Compare id. at 1665 (citing "long and venerable line" of bond cases in support of its deci-
sions) with id. at 1674-75 (Kennedy, J., concurring in part and concurring in the judgment) (distinguishing
144.
145.
146.
bond cases cited by the majority).

493 U.S. 265 (1990).
Id. at 268.
United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1369 (S.D.N.Y. 1985).
[Vol. 65:735
issued a negative injunction against any more such discriminatory conduct, as well as an affimative order that the city remedy the existing
situation by building low-income housing in a non-segregated fashion. 147
Parts IV and VI of the order were of particular import, requiring the city
to build two hundred units for which it already had accepted a federal
grant and develop a long-term plan for building further subsidized
housing.
148
From the time of the district court's order, the city began a course of
flagrant defiance. The city first failed to meet the terms of the original
order. Plaintiffs moved for contempt, but the district court secured an
agreement that the city would appoint an outside advisor to identify sites
for the two hundred units and draft a long-term plan. After the court of
appeals affirmed the remedial order, the city entered into a consent
decree to implement it. The city council approved the decree by a five to
two vote, but the city immediately began to delay implementation. The
plaintiffs once again moved for relief, this time asking the district court
to enter a long-term plan order based on a draft prepared through negotiations with city lawyers. The court entered the order, which, inter alia,
required the city to pass legislation necessary to implement the long-term
plan. 149
When the city failed to pass the legislation required by the district
court's order, matters came to a head. In its order, the court had set a
show cause hearing should the city balk. 15 0 At the hearing, the city took
the position that the court should simply deem the legislation passed. 151
The district court declined and held the city and the city council members who had voted against the legislation in contempt. 52 The court
imposed enormous fines and threatened to jail city council members who
failed to comply by passing the required legislation. 5 3
The contempt sanctions were appealed to the Second Circuit. The
appellate court affirmed the district court in all respects, except that it
limited fines against the city so that they would not exceed one million
147.
148.
United States v. Yonkers Bd. of Educ., 635 F. Supp. 1577, 1577, 1580-81 (S.D.N.Y. 1986).
Id. at 1580-81 (Part IV, requiring the extra units); id. at 1582 (Part VI, requiring the long
term plan).
149.
150.
151.
152.
153.
Spallone, 493 U.S. at 271.

Id.
Id. at 272.
Id.
Id. at 271-72.
19921
dollars per day.15 4 Both the city and the individual council members
sought review in the Supreme Court.
The Supreme Court granted review as to the individual council
members but denied review as to the city."' In the meantime, the city's
contempt fine approached one million dollars per day. Facing bankruptcy, all but two council members who
had voted no relented, and the
15 6
vote.
two
to
five
a
by
passed
legislation
The council members raised two arguments before the Supreme
Court. First, they maintained that they were protected from contempt
sanctions by the doctrine of legislative immunity.' 57 The Court had previously held that state legislators are so immune 58 but had not addressed
the question with regard to municipal legislators. Second, the council
members argued that requiring them to vote a certain way violated their
First Amendment rights. 59
As in Jenkins, the Court declined to address the constitutional
issues. 6 Rather, the Court concluded that the contempt sanctions
against the individual legislators constituted "an abuse of discretion
under traditional equitable principles."' 6 1 According to the Court, it was
not an abuse of discretion to hold the city in contempt, for the city itself
had entered the consent judgment.1 62 Indeed, the Court did not completely rule out the possibility of contempt fines against local legislators,
although the Court's reasoning suggested this seldom, if ever, would be
63
appropriate.
The primary basis for holding it improper to fine the city council
members was that such a fine would yield a "perversion of the normal
legislative process."' 6 When fines are imposed upon the city, the city
council must vote with the city's interest in mind when determining
whether to comply or not. When the fines run personally against a legislator, however, the council member might be forced to vote on the basis
154. Id. at 272.
155. Id. at 273.
156. Id.
157. Id. at 274.
158. Tenney v. Brandhove, 341 U.S. 367 (1951).
159. Spallone, 493 U.S. at 274.
160. Id.
161. Id.
162. Id.
163. Id. at 278 (considering "whether in the light of the reasonable probability that sanctions
against the city would accomplish the desired result, it was within the court's discretion to impose
sanctions on the petitioners as well under the circumstances of the case").
164. Id. at 280.
[Vol. 65:735
of personal financial interest, even if the legislator "took the extreme

position-or felt that his constituents took the extreme position-that
even a huge fine" was preferable to complying with the federal court
order. 165
As in Jenkins, the decision rested on a distinction: here it was
between the propriety of fining the city and of fining the individuals who
composed its recalcitrant legislative body. As in Jenkins, the four dissenting Justices ridiculed that distinction as meaningless.166 According
to the dissent, once a remedial order has been entered, the Court's only
concern is to obtain compliance.1 67 The whole point of civil contempt is
to obtain compliance. A concern that legislators will vote to comply out
of their own personal interest instead of the city's interest is nonsensical,

the dissent argued. Neither has any choice. Thus, it should not matter
who is fined.1 68 If the underlying premise of the dissent is correct, the
reasoning is compelling.
The very fact that the majority ignored the dissent's reasoning sug-
gests that the Court is-or at least some members of the majority areprepared to leave room for defiance of federal court orders. The dissent's
view was that defiance was not even an option, that noncompliance must
be brought to heel. Not so the view of the majority, however, as illustrated by the suggestion that "extreme" legislators and constituents
could accept the contempt penalty and decide not to comply.169
The Spallone majority decision seems constructed almost to permit-or even to encourage-controlled defiance. After all, the Spallone
court refused to adopt a cleaner solution. If remedying rights was the
only goal, the simple solution would have been to order the district court
165. Id. at 279-80.
166. See supra note 110.
167. See Spallone, 493 U.S. at 303 (Brennan, J., dissenting) ("IThe only relevant question is
how the court can best encourage--or if necessary coerce-compliance.").
168. Id. at 303-04.
169. It is true the majority reserved for itself the option to allow fines against the individual
legislators should compliance not be forthcoming. This is inconsistent, however, with the discussion
set out in the text. A number of possibilities for reconciling these views exist. First, the threat may
be no more than that-the Court's opinion seems to suggest that the court was unlikely to uphold
individual fines-but hoped that the threat might be enough to achieve compliance. Second, the
Court majority may have been split on this issue, and that split might have affected the way the
opinion was drafted. Justice White was the key vote in both Spallone and Jenkins; given his vote in
Jenkins (with the majority), he might be most likely to support individual fines and might have
insisted on that formulation in Spallone. Nonetheless, the majority opinion does suggest some support for the defiance principle. Finally, it is worth noting Justice Brennan's and Marshall's retirements: their replacements may affect the outcome of Jenkins particularly and may offer more
support to the Spallone majority.
1992]
to deem the legislation passed and move forward. Instead, the Court's
solution tells the city, "Defy if you care to, but at a cost." Moreover,
suppose the city of Yonkers continued to defy the order, incur the fines,
and not pay. Then what?
This interpretation of Spallone and Jenkins seems to stray from
Cooper v. Aaron, 170 the Court's classic decision on defiance. In Cooper
the Supreme Court considered a request by the local school board to
delay implementation of a desegregation program in light of opposition
by state officials-particularly by Governor Faubus-to desegregation of
the schools. Those state officials argued that they were not bound by the
Court's decision in Brown v. Boardof Education. I" In a strongly worded
decision signed by all nine Justices, the Cooper Court asserted its
supremacy in construing the Constitution, suggesting (if not stating) that
once the Court has spoken to a constitutional issue, compliance is
expected. Yet, while maintaining the aura of judicial supremacy, the
Supreme Court in Jenkins and Spallone failed to impose remedies most
likely to lead to the enforcement of constitutional rights. Rather, those
decisions almost seem structured to permit the very defiance Cooper
would not tolerate.
Thus, at the enforcement stage, as at the remedial stage, the Court
seems of two minds. On the one hand, rights require remedies, and
strong measures are indicated to obtain compliance. On the other hand,
these measures are not calculated only to obtain compliance; rather, they
are structured to test popular acceptance and even to permit popular
disagreement.
This description paints a picture different than Cooper v. Aaron's
"Court as ultimate arbiter." The foregoing description is of "Court as
mediator" trying to reconcile majoritarian concerns with ostensibly
countermajoritarian rights. This in turn suggests that there is room to
challenge the very countermajoritarian nature of those rights. The following section discusses the benefits of this pragmatic approach by the
Court; the concluding section addresses the impact of the Court's
approach upon constitutional rights.
III. A DIALOGIC THEORY OF REMEDIATION
Thus far, I have painted a picture of the remedial process that strays
quite far from the Marbury principle and the idealized role of courts in
170.
171.
358 U.S. 11 (1958).

347 U.S. 483 (1954).
[Vol. 65:735
implementing that principle. The Marbury principle suggests that

courts, having found a rights violation, should pick an appropriate remedy and then see that the remedy is enforced. Instead, we see courts
deferring to the interests of rights-violators in shaping remedies and then
negotiating with those same bodies as to enforcement. Moreover-and
perhaps most surprising-the Court's doctrine is evolving in a fashion
that permits some controlled defiance of judicial orders.
Although the process thus described does stray from a more traditional notion of remediation, upon examination it is this pragmatic process-rather than idealized notions-that is workable. Channeling
popular dissent provides for orderly review, and it also provides a means
for courts (and most importantly the Supreme Court) to ensure that the
other branches of the federal government are on board should federal
court orders be met with hostility. Moreover, the process as described
provides a means for a dialogue with majoritarian elements concerning
remediation.
At one level what I have termed "defiance" is simply a way to test
the decision of a district court with higher authorities.17 2 One way to
ensure immediate, seriously attentive review by an appellate court is to
defy a lower court order and face large fines or imprisonment. 173 This
also ensures that the decision is not of "one judge" (a criticism often
leveled at such orders)174 but is the reasoned decision of a majority of at
least four judges and maybe more. It is not a surprise that the Supreme
Court granted certiorari in cases involving sanctions as weighty as those
175
in Jenkins and Spallone.
Moreover, channeling defiance is a way for courts to ensure that
they have support from some appropriate majoritarian body. Ultimately
courts depend upon federal executive or legislative support in order to
see that judicial orders and policies are carried out. 176 Channeling defiance can provide a test of support before matters come to a head.
172. Cf.BICKEL, supra note 11; Nagel, Structural Injunction, supra note 4, at 406 ("[E]ven
colorful talk of resistance is an important aspect of public discussion." The use of contempt sanctions if the legislature fails to vote as the judge directs "deprives the judge of the formally-registered
judgment that grows out of public debate.").
173. See, P-g., I-Eckman v. Taylor, 329 U.S. 495 (1947) (appeal following district court judge's
jailing of attorney who refused disclose work product).
174. See Chayes, Burger Court,supra note 4, at 55 ("[A] single official is vested with substantially unfettered power." (discussing deferential standards of appellate review)).
175. Spallone v. United States, 493 U.S. 265, 271-72 (1990) (City council members faced escalating daily fines and possible imprisonment.).
176. See Mishkin, supra note 4, at 968-69. If one looks at prior Supreme Court decisions
approving broad remedies, one notices that the Court seems most willing to go furthest in cases in
1992]
Indeed, this very concept of "channeled defiance" provides the

answer to the separation of powers concerns leveled against broad federal
remedial orders and enforcement tools such as raising taxes. Such concerns are premised on the notion that, although judges are not possessed
of the power of the purse, remedial orders such as tax increases transgress this limitation. 17" But Hamilton was correct.' 78 Judges have
neither the power of the sword nor the power of the purse. When federal
judges enter an order raising taxes, they still do not possess the power to
collect them. Success depends on the compliance-indeed, cooperation-of legislative or executive officials at the state and ultimately the
federal level. If those officials comply, then the ostensible limitations are
not transgressed. If they do not comply, the judicial order will not be
enforced.
One might argue that this model is oversimplified in that it ignores
the persuasive effect the "rule of law" might have on the other federal
branches. The other federal branches might back up the Court even if
they do not agree with what the Court is doing. 179 Indeed, history suggests that this is correct: witness how little defiance of Court orders there
generally has been.' 80 But it is unclear why the other branches should
not act with due regard for the rule of law. The Court's views are entitled to the same initial deference as those of the other branches when
these views arise in the judiciary's area of expertise, namely rights, remedies, and their enforcement.'
But such deference is only good up to a
which the Court knows it has executive support-as when the Solicitor General appears before the
Court and says so. See BICKEL, supra note 11, at 251-52 (In regard to "segregation cases," Bickel
says, "The cooperation of the political branches might be needed in fostering the necessary acceptance; and it could well be looked for since the Solicitor General of the United States . . . had
appeared and supported the cause of the Negro plaintiffs."). But if a case gets to the Court, and the
Court knows of, or senses, a lack of federal support, it can mediate the situation in some fashion.
177. See generally Frug, supranote 4 (arguing that the Constitution allocates power of the purse
to legislative branch); Nagel, Remedies, supra note 4 (discussing separation of power difficulties with
broad remedial decrees).
178. THE FEDERALIST No. 78 (Alexander Hamilton); see also Frug, supra note 4, at 792
("Courts ultimately lack the power to force state governments to act."); Frank M. Johnson, Jr., In
Defense of JudicialActivism, 28 EMORY L.J. 901, 911 (1979) ("Judges can state norms and frame
decrees; compliance requires a reservoir of public acceptance.").
179. See Mishkin, supra note 4, at 968-69 & n.70 ("Fulfillment of the duty [of the Executive to
back up judicial orders] does not depend upon agreement with the court orders."); Frug, supranote
4, at 733 (stating that it is not enough to say that the legislature and executive are acting if they do so
only in response to court order); Monaghan, supra note 4, at 31 ("I think it can be assumed that
Congress is reluctant to pass statutes that force a confrontation with the Supreme Court.").
180. But see Exparte Merryman, 17 F. Cas. 144, 152-53 (C.C.D. Md. 1861) (No. 9, 487) (The
president authorized a military officer to suspend the writ of habeas corpus).
181. Moreover, the majoritarian bodies depend generally upon judicial sanction for their own
legitimacy. See infra note 220.
[Vol. 65:735
point. If the Court is seriously out of line with majoritarian concerns, the
other branches may refuse to support the Court.
Thus, the Court must approach the process of remediation with an
eye on popular will. Contrary to idealized notions, the best way to do
this is interactively, through a dialogic process that tests and takes
account of the limits of popular tolerance as remediation proceeds. Only
in this manner can the courts ensure that the remedial process succeeds.
Viewed from this perspective some of the Court's doctrinal tools
criticized above make much greater sense. For example, I critiqued both
the Bivens model and the Eleventh Amendment jurisprudence as contrary to the Marbury principle. I ' And on the face they are. Both lines
of cases work quite well, however, to foster dialogue and test popular
tolerance of remedial results. 183
The Bivens approach, for example, is perfectly suited to foster just
the sort of dialogue I argue is necessary. Bivens is an invitation to Congress to join the remedial process. In Part II.A of this Article, I made
the point that identifying any one correct remedy is difficult. Bivens permits Congress to voice popular opinion as to a remedy that meets
majoritarian concerns, such as overdeterrence of official conduct. The
Court reserves its say as well, in that Congress cannot choose an "inadequate" remedy (whatever that means); thus, Bivens is a doctrine that
allows the branches of government to work together.
Another good example of doctrine promoting dialogue and popular
assent is the Eleventh Amendment. As indicated above, absent a waiver
of immunity by the state, state officials cannot be sued for money damages that will come out of state coffers. But prospective decrees are
acceptable, though they may cost the state a great deal of money. 8 4 The
rub is that making the state pay is hard. The state may not be sued
182. See supra notes 51-52 (critiquing Eleventh Amendment jurisprudence), 73-79 (critiquing
the Bivens model) and accompanying text.
183. A number of commentators have explored similar themes regarding dialogues between
state and federal courts on the question of federal rights enforcement. See Jack M. Beermann, Government Official Torts and the Takings Clause: Federalism andState Sovereign Immunity, 68 B.U. L.
Rv. 277, 335 (1988) (suggesting an exhaustion model for state governmental tort litigation, which
would, interalia, serve a dialogue function between state and federal courts); Robert M. Cover & T.
Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE L.J. 1035,
1048-50 (1977) (discussing federal-state dialogue in the context of habeas corpus litigation); Judith
Resnik, Tiers, 57 S. CAL. L. REv. 837, 882 (1989) (same).
184. See supra note 68-70 and accompanying text.
1992]
directly,185 and ultimately getting money out of a state legislature is difficult because the state legislators are also immune from suit.186
This difficulty in achieving state compliance leads to two results.
First, prospective remedial decrees often are the product of negotiation
among the parties and the court.18 7 This process is highly interactive,
and it is most likely to lead courts to enter orders that accommodate the
need to enforce constitutional guarantees and majoritarian concerns.
Second, this Eleventh Amendment doctrine permits orderly federal
debate if states balk. When states balk, the federal judiciary is unable to
do anything about the problem by itself. But the Eleventh Amendment
is not an absolute bar to relief from the state. Congress can abrogate the
immunity, 8 8 and states can be sued in their own names if sued directly
by the federal executive (i.e., when the United States is the named plaintiff). 89 In order to obtain these ultimate sanctions, however, the Court's
own doctrine requires cooperation. This is a check the Court has placed
upon itself.
Seen thus, the Court's remedial doctrinal construct is designed to
answer separation-of-powers concerns explicitly and to foster a cooperative dialogue. Part of the problem with the traditional separation-ofpowers critique is that we are far too prone to think of separation of
powers as a struggle. This tendency is understandable, for history suggests that the framers' concept of tripartite government was that it be (1)
a separation as distinct as possible with (2) an elaborate system of checks
each branch could use to prevent encroachment and overreaching. 90
But even within this context there is another way to conceive of our governmental system.
185. See Quern v. Jordan, 440 U.S. 332, 345 n.17 (1979); Alabama v. Pugh, 438 U.S. 781
(1978). But see McKesson v. Division of Alcoholic Beverages & Tobacco, 110 S. Ct. 2238, 2242
(1990) (suggesting the state may have to return unconstitutional taxes paid under protest); First
English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) (requiring
"just compensation" for regulatory takings, including compensation for the period of time prior to
judicial determination that regulation effected a taking).
186. Tenney v. Brandhove, 341 U.S. 367 (1951).
187. See Diver, supra note 4, at 63-64 (discussing interactive process of formulating remedies);
Sturm, supra note 4, at 1368-70 (discussing bargaining over judicial remedies).
188. Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989); Fitzpatrick v. Bitzer, 427 U.S. 445,451-
57 (1976).
189.
190.
Principality of Monaco v. Mississippi, 292 U.S. 313, 328-30 (1934).

See THE FEDERALIST Nos. 47, 48 (James Madison). See generally GEOFFREY R. STONE
ET AL., CONsTIrToNAL LAW 342-46 (1986).
[Vol. 65:735
Separation of powers-and other structural limitations-may just as

well be thought of as a "cooperation of powers." 19' 1 Each branch or governmental unit has a special role to play, but goals cannot be advanced
unless the branches work together to some extent. Picture a door

secured with several locks, the key to each in another's hands. If the
door is to be unlocked, the keyholders must reach agreement to do so.
Under this "cooperation of powers" system, the best decisions are
those made when the branches of government agree.1 92 That is not to
say every branch and unit will get what it wants or "ought" to have;
indeed, the point is that the branches must negotiate and compromise.
The system is set up to ensure that they do so. In this context, courts
may play an important role by defining rights and issuing decrees, but
they cannot open the door alone. Ultimately the courts have neither the
power of the sword nor the power of the purse but must depend uponand enlist-the assistance of other branches.
The Court has structured its doctrine with an understanding that in

order to fulfill the Marbury principle, the cooperation of majoritarian
bodies is required. Thus, the doctrine fosters a dialogue with these bod-
ies. But the Court's doctrine also recognizes that cooperation may not be
191. See Louis FISHER, THE POLITICS OF SHARED POWER (2d ed. 1987); Edward H. Levi,
Some Aspects of Separation of Powers, 76 COLUM. L. REv. 371, 391 (1976):
[The authors of the Constitution] did not envision a government in which each branch
seeks out confrontation; they hoped the system of checks and balances would achieve a
harmony of purposes differently fulfilled. The branches of government were not designed
to be at war with one another. The relationship was not to be an adversary one, though to
think of it that way has become fashionable.
192. See Nagel, Remedies, supra note 4, at 680 ("If neither Congress nor the executive nor the
state institutions have the will to cooperate... then it is entirely possible that the court's objective is
unwise."); see also Denvir, supra note 4, at 1139-42 ("Too often, litigation and legislation have been
seen as competing modes of reform, rather than as complementary approaches.").
Professors Eisenberg and Yeazell observe that criticism of judicial remedial activism seems
muted when courts act pursuant to a congressional statute, Eisenberg and Yeazell, supra note 4, at
486-88, but state "it is difficult to understand why the existence of a relevant statute would make a
difference." Id. at 488. Cooperation of powers explains this. When a relevant statute exists, the
branches are working in tandem, with shared goals, and criticism likely will be muted. This also
explains why differing standards apply for implying constitutional as opposed to statutory remedies,
a question that has bothered at least one commentator. See Thomas W. Merrill, The Common Law
Powers of FederalCourts, 52 U. CHI. L. REV. 1 (1985); see also Althouse, supra note 20, at 1171
(drawing a distinction between treatment of federal statutory and constitutional issues with regard to
Eleventh Amendment).
This "cooperation of powers" need not be limited to the branches of the national government.
It can also extend to state-national relations (e.g., cooperation between the Court and the states).
See Amar, supra note 4, at 1509, who captures the idea, although he states it in terms of competition,
not cooperation. See also id. at 1519 ("[E]ven where states are denied the last word on remedies for
federal constitutional wrongs, they have the power to compel a dialogic response from Congress that
is more generous to aggrieved citizens than the congressional status quo ante.").
1992]
forthcoming, in which case Marbury's fundamental tenet is jeopardized.

This is the issue really worth discussion. To begin this discussion we
might as well turn back to our starting point, the question of rights, for
that-at least in significant part-is what the whole debate really is
about.
IV.
THE IMPACT ON RIGHTS: THE CONSEQUENCES OF A

DIALOGIC MODEL OF REMEDIATION
This model of the remedial process is no doubt disturbing. The

model is disturbing because it leads inevitably to the question: Can't
popular will frustrate constitutional rights?19 The idea of popular defiance trumping constitutional rights seems contrary to the whole notion
of constitutional rights as countermajoritarian safeguards against popu194
lar will.
This is precisely the question that makes the entire subject of federal
remedies and their enforcement interesting. The realist insight suggests
that questions regarding enforcement of remedies ultimately return to
the question of the rights at stake. The problems with enforcing remedies tell us a great deal about our commitment to rights and about the
way rights are defined.
Received tradition has it that courts define rights. The special task
of courts is interpreting the Constitution, and in that task they are
supreme. Moreover, the Supreme Court is the Supreme of the
supreme-it is the "ultimate arbiter" of what constitutional rights are.95
193. Once one gets beyond this question, the next interesting question involves the extent to
which decrees should be shaped to permit defiance, or to ensure compliance. These may be conflicting goals. This Article would be far too long for any reader's patience if this issue were addressed in
full, although it raises an important question for future study. In this regard the Eleventh Amendment's "remedial preference" for injunctive relief presents an interesting example: As I note earlier, I
do not believe the preference.makes obvious sense. See supra note 68. On the other hand, enforcement is more difficult and opportunities for defiance are greater with injunctive relief than with
monetary damage awards. By the same token, monetary damage awards may hasten conflict
between courts and political branches.
194. But see Frug, supra note 4, at 794 ("Because any confrontation between federal judicial
power and state authority can be resolved only by Congress, the judicial power of the purse will, in
the final analysis, extend no further than a democratic decision permits."). Two important sources
on the issue of defiance affecting rights are BICKEL, supra note 11, and Gewirtz, supra note 4.
195. See Cooper v. Aaron, 358 U.S. 1, 18-19 (1958).
[Vol. 65:735
Likewise, received tradition sets rights apart. Rights are what we

hold against the tyranny of the majority. Courts declare rights, and the
196
majority simply cannot transgress them.
Received tradition gives rise to the whole countermajoritarian
dilemma. Rights which stand against majoritarian will are the province
of unelected courts. Thus, when courts identify (and enforce) rights,
they stand against the majority.19 7
The received tradition's understanding of the countermajoritarian
dilemma oversimplifies the process of defining rights, however, largely
because it ignores the question of remedies and their enforcement.
Rights are not defined in isolation. Rights are surely defined through the
process of identification, but also through the process of implementation.
Through this process the "dilemma" is resolved in part, and tensions are
eased.
At the implementation stage, majoritarian will surely has its impact
upon rights, in extreme cases through flagrant defiance, but also by way
of less drastic means. It is both a reality and a strength of our constitutional system that such defiance rarely manifests itself in the ugly fashion
seen in Cooper v. Aaron, 198 or Spallone v. United States,19 9 in which the
rule of law is challenged directly. But there are subtler ways in which
majoritarian disagreement with judicial decisions can affect the content
of rights. Indeed, in some circumstances the Constitution explicitly sanctions such majoritarian participation. 2
Our history is replete with instances in which majoritarian bodies,
acting in a fashion defiant of federal courts' holdings, have had an impact
on a constitutional right.2 1 One poignant example involved the prison
196. This is the "countermajoritarian difficulty." See BICKEL, supra note 11, at 16-23; Bruce
Ackerman, ConstitutionalPolitics/ConstitutionalLaw, 99 YALE L.J. 453, 463 (1989); Thomas C.
Grey, Do We Have An Unwritten Constitution?, 27 STAN. L. REV. 703, 706 (1975) ("[I]f judges
resort to bad interpretation in preference to honest exposition of deeply held but unwritten ideals, it
must be because they perceive the latter mode of decision making to be of suspect legitimacy.); see
also Denvir, supranote 5, at 1153-54 (spelling out the classical objection to judicial activity: "[B]oth
critics and supporters of public interest litigation have tended to accept what has been termed a high
school civics course model of American democracy.").
197. Id.; see also Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 277 (1990) (presenting the traditional view of countermajoritarianism).
198. 358 U.S. 1 (1958).
199. 493 U.S. 265 (1990).
200. See infra notes 214-16.
201. Which brings to mind President Jackson's supposed response to the Court's decision in
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832): "Well, John Marshall has made his decision, now
let him enforce it." See also Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9, 487);
19921
litigation in Alabama. There, Judge Frank M. Johnson, recognizing the

brutal nature of life in the state prisons, set out to change things. Judge
Johnson held that the inmates' right to be free of cruel and unusual punishment had been violated by the totality of the circumstances in the
prisons. In response, he ordered sweeping relief.2 ' 2 Both the finding of
violation and the order of relief were affirmed several times.2 "3 But
ordering the prisons reformed and getting it done were two different mat-
ters; ultimately the hope for success ran into the intransigence of a state
legislature that would not allocate the necessary funds. Moreover, where
there once was federal support for the plaintiffs, administrations changed
over time and that support evaporated. The courts could not get the
remedy implemented. The result? Ultimately the appellate court redefined the right at stake to make partial compliance look like full compliance.2' Judicial face was saved. The right at stake was sacrificed...
somewhat.' The lesson: If a court cannot obtain a remedy, change the

right.25
Even if "defiance" strictly speaking is not at issue, majoritarian dissatisfaction with judicial decisions seems to make itself felt strongly
enough that judges get the message and alter the nature of the underlying
rights. One example is the exclusionary rule and the right embodied in
the Fourth Amendment.' 6 The exclusionary rule has never been popular,20 7 although it is the judicially mandated remedy for Fourth Amendment violations.20" The unpopularity of the rule has been manifested in
part through the expression of sentiment in popular press, 29 but also
Fiss, supra note 5, at 52 ("Rights operate in the realm of abstraction, remedies in the world of
practical reality."). Examples follow in text.
202. See Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976), aff'd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), rev'd in partsub non. Alabama v. Pugh, 438 U.S. 781 (1978).
See generally Yackle, supra note 4, at 97-104 (discussing the release of prisoners in the Alabama
prison litigation).
203. See Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974) (affirming finding of constitutional
violation); Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977) (affirming order of relief).
204. Newman v. Graddick, 740 F.2d 1513, 1520-21 (11th Cir. 1984); accord Friedman, supra
note 4, at 617 n.117.
205. See generally Fletcher supra note 4, at 664-91 (discussing instances in which Court has
defined a right with regard to the remedy that can be implemented).
206. See Mapp v. Ohio, 367 U.S. 643 (1961).
207. See Dellinger, supra note 4, at 1559-61 (discussing attacks on exclusionary rule); Meese
Says Justice DepartmentEndorses Centeron Child Abuse, N.Y. TIMES, May 8, 1985, at B28 (stating
that abolition of exclusionary rule is a top priority of Justice Department).
208. See Linkletter v. Walker, 381 U.S. 618, 634 (1965) (stating that exclusionary rule is the
"only effective remedy" for violation of Fourth Amendment rights).
209. Id.; see also D. Lowell Jensen, Asst. Atty. Gen., Letter to the Editor: A Proven Loopholefor
CriminalsThat Needs to be Narrowed, N.Y. TIMES, Mar. 17, 1983, at A22 (noting that one in three
[Vol. 65:735
through channels that traditionally might be thought of as more "legitimate": we have elected more conservative leaders who have chosen more
conservative judges who know what their job is.2 10 The exclusionary
remedy has been whittled away at,2" but it is somewhat indefatigable, so
the right has suffered instead.21 2
These are not the only examples. Observe what discontent with the
writ of habeas corpus, particularly in the context of the death penalty,
has done both to that remedy and to many of the underlying rights.2 13
As in many other areas, popular sentiment suggests, "If that is what is
required to get the job done, to get the right remedied, we're not sure we
like the right."
The public and the majoritarian branches have an opportunity to
participate in the formulation of rights in numerous ways. Many of these
are clearly enshrined in the Constitution. Presidents can appoint more
felony drug arrests in California is not prosecuted because of the exclusionary rule); Richard Crittenden, Letter to the Editor: 'Tainted' or Not, N.Y. TIMES, Jan. 31, 1983, at A24 ("It is morally
indefensible to free someone who commits a crime because the evidence was obtained extralegally if
that evidence overwhelmingly proves in a court of law that person's guilt."); David Hoffman, President Examines Florida Crime Booty, Vows to Widen War, WASH. POsr, Nov. 18, 1982, at A6 (discussing reform of exclusionary rule as part of new offensive in war on drugs).
210. See Steven V. Roberts, Intense Scrutiny Is Seen ForHigh Court Choices, N.Y. TIMEs, June
19, 1986, at D26 (noting that conservative ideology has been a consideration in confirmation of
recent nominees); Robert H. Bork, At Last,An End to Supreme Court Activism, N.Y. TIMES, Aug.
29, 1990, at A21 (retired Judge Bork makes the point set out in the text). But see Stuart Taylor,
Rehnquist's Court: Tuning Out the White House, N.Y. TIMEs MAG., Sept. 11, 1988, at 38 (reporting
decision on constitutionality of independent prosecutor).
211. See, eg., United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to exclusionary
rule), and Leon's progeny: Illinois v. Krull, 480 U.S. 340 (1987) (good faith applies to search pursuant to unconstitutional statute authorizing unwarranted search); Massachusetts v. Sheppard, 468
U.S. 981 (1984) (good faith applies to invalid warrant). Obviously there is no enforcement problem
with the exclusionary rule, one of its advantages.
212. See, for example, the recent cases holding a wide variety of police conduct not to be a
"search," thus avoiding altogether application of the Fourth Amendment: California v. Greenwood,
486 U.S. 35 (1988) (The trash outside of a house was searched.); United States v. Dunn, 480 U.S. 294
(1987) (Officers entered through several fences to peer into a barn.); California v. Ciraola, 476 U.S.
207 (1986) (An airplane flew over a bricked-in patio.).
213. See, eg., Teague v. Lane, 489 U.S. 288 (1989) (limiting retroactive effect of "new" rules in
habeas proceedings); Murray v. Carrier, 477 U.S. 478 (1986) (limiting "cause" to excuse procedural
default); Stone v. Powell, 428 U.S. 465 (1976) (holding that Fourth Amendment claims are not
cognizable in habeas proceedings).
1992]
sympathetic judges.2 14 Congress arguably has the power to curtail federal jurisdiction.2" Defendants may make use of elaborate appellate
processes.2 16 But some means of participation will likely trouble those
who have an idealistic view of the judicial process; for instance, Justices
who read of the never-ending attack on habeas corpus and the death penalty backlog in their morning newspapers may respond by curtailing
2 17
availability of the writ.
This notion of popular influence on constitutional rights raises the
question of whether such influence is legitimate. 2 18 But the question of
legitimacy seems somewhat odd here. Thus far this discussion has been
largely (although not completely) descriptive. I am not altogether certain what "legitimate" means in that context. The description of the
'2 19
remedial process and its necessary impact ,just is."
It may be useful to ask the normative question: should things be as
this Article describes them? Although the answer may be one of degree,
and although views certainly will differ, majoritarian participation in
defining rights through a reaction to judicial remedies and enforcement
seems both inevitable and appropriate. This is so because the Court is
214. Stephen Roberts, The Nation: Battered but Still Swinging, Reagan Enters FinalRounds,
N.Y. TIMES, Oct. 11, 1987, 4, at 4 ("Mr. Reagan saw Judge Bork as a justice who would push the
Court toward positions that Congress had repeatedly rejected."); see also infra note 217 and accompanying text.
215. See generallyFriedman, supra note 14 (arguing that there is no clear answer to the question
of congressional power to curtail federal jurisdiction).
216. In Spallone the majority opinion even acknowledged that the defendants made use of
appellate processes in the hope of avoiding compliance with the decree. See Spallone v. United
States, 493 U.S. 265, 275 (1990). The Spallone defendants made two trips to the Second Circuit. See
id.at 270-72. The Jenkins defendants made two trips to the Eighth Circuit. Missouri v. Jenkins, 110
S. Ct. 1651, 1657, 1658 (1990).
217. See Gewirtz, supra note 4, at 676 (suggesting judges "read the constitutional text illuminated by the world outside judicial chambers," referring to Justice Frankfurter's comment that
judges read the Constitution with the "gloss of life"). These "nonconstitutional" means may take a
back seat to their more traditional cousins simply because the legitimate processes either do the trick
or appear to do so. When political tides change, and new leaders are elected, they pick judges that
share their views. A recent study confirm this. See Jeffrey A. Segal & Albert D. Cover, Ideological
Values and the Votes of U.S. Supreme Court Justices, 83 AMER. POL. Sci. REV.557 (1989).
218. See Chayes, Role of Judge, supra note 4, at 1313-16; Diver, supra note 4, at 88-89; Fiss,
supra note 4, at 5 ("We have been forced, as perhaps we should, to examine the legitimacy of those
changes" in adjudication and incremental structural reforms that occurred during the Warren Court
era.).
219. See R. MCCLOSKEY, THE AMERICAN SUPREME COURT 17 (1960) (questioning the wisdom of giving the Court the power of judicial review is nearly irrelevant since it "amounts to saying
that America was unwise to be the nation it was"); Denvir, supra note 4, at 1153-54 (stating that the
countermajoritan dilemma poses an attack on Marburythat comes too "late in the day"); cf Chayes,
Role of Judge, supra note 4, at 1307 ("We have invested excessive time and energy in the effort to
define.., what the precise scope of judicial activity ought to be.").
[Vol. 65:735
neither omniscient nor invincible. Because courts, including the

Supreme Court, do not get everything right the first time, or even the
second or third time, it helps to have some interplay-to debate things.
Without such debate, any notion of the Court as different or as playing a
special role would not survive public hostility.
John Marshall, perhaps the Court's most brilliant politician and
legal mind, knew that being right was not enough. If Marbury v.
Madison demonstrates anything, it demonstrates that allies are essential
for an institution that in truth possesses neither the purse nor the
sword.2 20 The Court has survived on its stored political capital and its
ability to generate public support from among various segments of the
population.22 1 That is why the Court is most likely to approve strong
remedial measures and to utilize strong enforcement tools when there is
widespread acceptance of the right at stake and when defiance by a few is
flagrant.
Because of attrition, federal courts over time generally come to
reflect and respect, to some extent, majoritarian will. Thus, conflict is
avoided. This is not always the case, however. Federal judges hold their
jobs for life tenure2 2 2 -often a long time-and thus are relatively insulated as individuals (rather than as an institution) from political hostility.
Indeed, this insulation is the cornerstone of what sets the judiciary apart
and permits it to play its "special role." The judiciary, by virtue of its
relative insulation from political processes, has the luxury of announcing
new rights and trying to guide public opinion by trying these rights out
on the body politic. The judiciary acts as a brake, changing more slowly
2 23
than public opinion, not captured by every passing whim or fancy.
Sometimes, however, the very aspect of the judiciary that sets it
apart becomes problematic. Judges' views sometimes get way out of line
220. See Friedman, supra note 4, at 618-19 (stating that Chief Justice Marshall, unable politically to grant Marbury relief, took the opportunity to establish the principle ofjudicial review, sacrificing ubijus, libi remedium in favor of political expediency).
Susan Bandes and Robert Nagel both offered me what I believe is an extremely important
thought. Just as the judiciary is dependent upon the support of the more majoritarian branches, the
inverse is also true. Majoritarian branches depend upon courts to legitimize the workings of
government.
221. See Frank M. Johnson, Jr., Civilization, Integrity, and Justice: Some Observations on the
Function of the Judiciary (In Honorof Judge Irving L. Goldberg), 43 Sw. L.J. 645, 649 (1989) (stating that legitimacy of controversial decisions "must rest on some broader popular conception of, and
faith in, justice by the American people").
222. See U.S. CONST. art. III, 1.
223. ALExIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (George Lawrence trans., J.P.
Mayer & Max Lerner eds., 1988).
1992]
with those of the body politic, and real problems result. Fortunately
instances of such deviation have been few; but these few have had an
impact, both on the judiciary and on society. Judicial resistance to the
New Deal, along with the subsequent Court-packing plan, provides one
example.2 24 Even today the Court seems reluctant to address the question of whether something is a "delegated" power of Congress,2 25 despite
the fact that the concept of delegated powers was an important protec-
tion of the original constitutional structure.226 Dred Scott and the war it
occasioned provide another example:227 it is unclear whether any judicial
pronouncement could have averted national catastrophe, but the Taney
Court could have been more Solomonic.228
To avoid straying too far from public opinion, the Court must enter
into an exchange with the body politic. 229 For all of the advantages they
gain from being insulated from the body politic, however, courts suffer
from the absence of a medium of exchange with the people. Courts can-
not send out questionnaires.230
On the federal level, the Bivens cases thus provide a brilliant solu-
tion. Those cases recognize that, although the Court is the ultimate arbiter as to questions of right, it is not the sole decision maker.2 31 By
putting remedies in the hands of Congress-or at least purporting to do
so-the Court is able to initiate a dialogue on the entire question of rights

and remedies.2 32 This is but one way of "talking to the people.
2 33
224. See generally GERALD GUNTHER, CONSTITUTIONAL LAW 128-30 (1lth ed. 1985) (discussing Court-packing plan).
225. See, eg., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (holding that
the Court will not interfere in state federalism challenges of Congress's authority, despite Tenth
Amendment reservation of all undelegated powers to states).
226. See Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan
Horse, 1988 Sup. CT.REv. 85, 95-98.
227. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); see also STONE ET AL., supra note
190, at 444.
228. See STONE ET AL. supra note 190, at 444 (suggesting that the Taney Court may have
"unnecessarily and unwisely reached out to decide an issue not properly presented").
229. Professor Frug also makes the good point that an invaluable enforcement tool is the power
of the judiciary to make gross violations of constitutional rights public. See Frug, supra note 4, at
791; see also Denvir, supra note 4, at 1139-1142 (describing the role judicial proceedings can play in
promoting legislative reform).
230. See Nagel, Structural Injunction, supra note 4, at 405-06 (criticizing judicial orders that
curtail debate over judicially mandated policies as limiting vital public discussion); Johnson, supra
note 178, at 902 ('This chorus of criticism may be a valuable check on the federal courts.").
231. See Fiss, supranote 4, at 2 ("Judges have no monopoly on the task of giving meaning to the
public values of the Constitution, but neither is there reason for them to be silent.").
232. See Johnson, supranote 221, at 651 (suggesting that the federal courts' "lot in a democratic
and pluralistic society [is] to function as a gadfly on the social conscience"); cf. Fallon, supra note 4,
[Vol. 65:735
As others have observed, however, courts do not talk easily with

other branches or with the public.2 34 And so there is a need for alternate
ways to raise storm warnings when trouble is afoot, ways to expressboth from the perspective of courts identifying rights, and from the perspective of defendants against whom the rights will be enforced-the
level of importance or difficulty accompanying the declaration of rights.
There must be other means of dialogue. That is what the enforcement of
remedies is all about.
at 59 (critiquing the Court's constitutional standing doctrine as cutting off too quickly "a dialogue
between the courts and Congress" with regard to public law litigation).
233. Professor Ackerman describes a process whereby all branches of government and the people interact with one another in an elaborate dialogue to determine which body has a mandate to
speak "for the People." See Ackerman, supra note 196, at 490. Several commentators have discussed the relative competence of the judicial and legislative branches when engaging in this dialogue. See Dellinger, supra note 4, at 1552-59; Denvir, supra note 4, at 1155-58. Dean Diver sees
the entire process of social reform litigation as an "interactive" one. See Diver, supra note 4, at 65.
Likewise, Professor Monaghan's theory of constitutional common law promotes the Court's "dialogue" with Congress on the issue of remedies for constitutional rights violations and "provides the
Court with a means for involving Congress in the continuing process of defining the content and
consequences of individual liberties." Monaghan, supra note 4, at 27-29.
234. See Chayes, Role ofJudge, supra note 4, at 1314-16 Although he points out the difficulty
Congress faces in responding to judicial decisions, Professor Chayes nonetheless refers to judicial
participation in public law litigation as "a continuous and rather tentative dialogue with other political elements." Id. at 1316.

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Citation: 65 S. Cal. L. Rev. 735 1991-1992

Content downloaded/printed from

WHEN RIGHTS ENCOUNTER

LON L. FULLER, BASIC CONTRACT LAW (1947).

SOUTHERN CALIFORNIA LAW REVIEW

nice idea.3 Any meaningful discussion of rights, therefore, must focus on

WHEN RIGHTS ENCOUNTER REALITY

American jurisprudence suffers from an intriguing schizophrenia

Marbury v. Madison is an apt metaphor for the shortfall between the

5 U.S. (1 Cranch) 137 (1803).

SOUTHERN CALIFORNIA LAW REVIEW

This Article examines our commitment to the idealized notion of

See infra Part II.

BICKEL, THE LEAST DANGEROUS BRANCH

WHEN RIGHTS ENCOUNTER REALITY

that majoritarian views do

This Article views rights through the prism of remedies. Although

110 S. CL 1651 (1990).

13. 493 U.S. 265 (1990).

SOUTHERN CALIFORNIA LAW REVIEW

important conclusions. First, despite the close congruence between right

WHEN RIGHTS ENCOUNTER REALITY

II. REMEDIES AND THEIR ENFORCEMENT

Ubijus, ibi remedium-the Latin phrase sounds as beautiful as the

SOUTHERN CALIFORNIA LAW REVIEW

by tortious conduct, the concept often is rather strained in the context of

WHEN RIGHTS ENCOUNTER REALITY

conduct. 26 But it is altogether unclear how an injunction does anything

31. Milliken v. Bradley, 418 U.S. 717 (1974).

SOUTHERN CALIFORNIA LAW REVIEW

WHEN RIGHTS ENCOUNTER REALITY

43. 437 U.S. 678 (1978).

SOUTHERN CALIFORNIA LAW REVIEW

cases while emphasizing deterrence in others.48 The compensatory goal,

Amendment, at least as it has been interpreted by the Court, prohibits

WHEN RIGHTS ENCOUNTER REALITY

absolutely nothing to compensate the high school student who brought

SOUTHERN CALIFORNIA LAW REVIEW

particular remedy, or, as is most common, denies certiorari.5 7 Particu-

larly in the arena of institutional suits involving broad remedies, the

institutions virtually under the control of federal district judges.'

WHEN RIGHTS ENCOUNTER REALITY

conflict between these supposed principles and the entire concept of

SOUTHERN CALIFORNIA LAW REVIEW

WHEN RIGHTS ENCOUNTER REALITY

The Court's ambivalence toward remedying rights and solicitude

state or local governmental officials violate constitutional rights. With

stitutional torts committed by federal officials.

SOUTHERN CALIFORNIA LAW REVIEW

for violations of constitutional rights by federal officials. The Bivens

WHEN RIGHTS ENCOUNTER REALITY

THE ENFORCEMENT OF REMEDIES

There is a paucity of law regarding the lengths to which a federal

SOUTHERN CALIFORNIA LAW REVIEW

In attempting to ensure that remedies are enforced, lower courts

have utilized carrot and stick techniques, together with accompanying

WHEN RIGHTS ENCOUNTER REALITY

amount of insulation can completely protect a judicial system that is

SOUTHERN CALIFORNIA LAW REVIEW

unpopular yet necessary action in order to get the majoritarian branches

WHEN RIGHTS ENCOUNTER REALITY

cial activity. The court purported to avoid the constitutional question in

nature of remedial authority.