The Continued Vitality of Prophylactic Relief
Thomas, Tracy A., The Review of Litigation
Prophylactic injunctions first appeared on the remedial scene in the mid-1960s.1 Together with structural injunctions, they formed the corpus of public law injunctions that were used to address social institutional problems, such as school desegregation and prison civil rights violations. "Prophylactic" measures were distinguished by their breadth and specificity that reached the facilitators of harm in order to prevent continued illegality.2 The success of prophylactic relief, however, soon raised the ire of conservative critics who attacked the ability of courts to enact injunctive relief that extended "beyond the right."3 For academics had initially theorized prophylactic relief as "deliberately fashioned rather than logically deduced from the nature of the legal harm suffered."4 Reacting to the conceptualization of prophylaxis as the power of an omnipotent judge to enact new social norms based on what was morally just, these critics turned the prophylaxis label into an epithet.
This essay critiques the dominant discourse of prophylaxis as illegitimate. Despite the harsh academic and political criticism, prophylaxis continues to thrive as an effective and necessary component of the practical remediation of complex cases.5 Exploring the contours of prophylactic relief in federal cases involving schools, prisons, and sexual harassment, this essay illustrates how prophylactic relief continues to be used as a powerful and effective remedy. The continued use, however, demands an alternative theory of justification for prophylactic relief, for neither the image of an omnipotent judge nor that of an activist policymaker adequately explains the actual remedial practice. Prophylactic relief is instead used by the courts in a more traditional and tailored way to address public law problems. Ultimately, this essay seeks to provide an alternative text for lawyers and jurists to use on the legal frontlines to address questions of the legitimate and appropriate use of broad injunctive relief.
II. THE DIFFERENCE A NAME MAKES
The term "prophylactic" derives from the Supreme Court's label for a specific type of injunctive relief, used both descriptively and pejoratively by the Justices.6 The terminology usually triggers laughs and guffaws from those hearing it for the first time. Yet, the analogy to medical prophylaxis is useful as it connotes the use of additional measures implemented preventively to avoid a greater harm to an individual. Moreover, we are often stuck with the text we are given, and here the ability to communicate effectively about the parameters of prophylaxis requires using the existing language common to the decided cases.
Prophylaxis is characterized by the specific precautionary measures imposed to address causal factors with a nexus to continued violations. It is differentiated by the use of precautions ordered to address secondary facilitators of harm to provide more effective prevention. The additional steps reaching contributing causes are ordered with the purpose of heading off the harm before it develops.
Some common types of prophylactic measures emerge from the cases. The first type involves evaluation and monitoring measures, such as a duty to report to the court, provide access to an investigator, or implement some ongoing oversight.7 Courts also require defendants to develop express policies to address institutional culture and create consequences for enforcement of the policies. Another type of prophylactic measure is one establishing a process or procedure like procedural safeguards, notice provisions, or communication networks.9 Education is also a common prophylactic measure where defendants are ordered to disseminate information and train employees about the relevant processes and procedures.10
Prophylaxis constitutes a distinct type of injunction within the existing nomenclature of the law. The existing classification of injunctive relief derives from Owen Fiss's 1978 work, The Civil Rights Injunction. …