Law Commons^™

A Normative Theory Of Public Law Remedies, Susan Sturm

Faculty Scholarship

The remedial process in public law litigation is a practice in search of a theory. Courts are actively engaged in attempting to remedy violations of constitutional and statutory norms in complex organizational settings. The traditional adversary conception of adjudication has proven inadequate to the task of structuring remedies and promoting compliance in these settings. In response, lawyers, judges, and litigants are employing a variety of innovative roles and processes that do not conform to the accepted adjudicative ideal. Remedial activity in public law litigation frequently entails negotiation, informal dialogue, ex parte communication, broad participation by actors who are not formally …