Remedial Law: When Courts Become Administrators

Remedial Law: When Courts Become Administrators

Remedial Law: When Courts Become Administrators

Remedial Law: When Courts Become Administrators

Excerpt

This monograph is an account of a colloquium which took place at Wesleyan University on April 24-25, 1987, and focused on a relatively new but increasingly important aspect of American government--the continuing judicial intervention in the direct management and reform of executive departments and agencies. The prime justification judges and judicial scholars offer for court intrusion is the need to protect the constitutional rights of individuals over whom these public organizations have custody. This form of judicial activism is now known as remedial law and occurs when violations by public agencies of the rights of children, prisoners, patients, and tenants are found to exist.

Remedial law contrasts sharply with the cease and desist orders and awards of damages which courts issue when private parties have been offended. In place of these simple and straightforward measures, it entails deliberate, comprehensive, and often complex court efforts to change the organizational behavior of school systems, prisons, mental hospitals, and public housing authorities judged to violate individual rights.

The basic issue remedial law raises is how to reconcile the judicial value of equity with the organizational values of effectiveness and . . .

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