Modern civil rights injunctive practice reached unambiguous middle age last year, fifty years after the Supreme Court’s second opinion in Brown v. Board of Education. The conventional wisdom that has developed declares this history essentially closed; institutional reform litigation is, as many see it, “something that is over and done with.” I argue in this article that this conventional wisdom is false. Presenting a longitudinal account of court order litigation involving jails and prisons, and using both systematic data and more qualitative evidence, I establish that at least as to correctional court orders, the claim of 1980s and 1990s decline in the reach of court order regulation is simply wrong. In both jails and prisons, as of the mid-1990s, new court orders continued to be entered all over the country, and old orders continued to exert regulatory effect. Rather than a 1980s to 1990s decline, we see a long-standing plateau. Thus the conventional story of the demise of public law injunctions in the 1980s misses the continuing strength of injunctive practice during that time.
In 1996, however, Congress intervened. The Prison Litigation Reform Act (“PLRA”) made old correctional court orders harder for plaintiffs’ counsel to sustain and new ones harder to obtain. The PLRA had a very notable constrictive effect on correctional court order practice. Even so, just as before, prison and jail court orders continue to be sought and entered; even now, ten years after passage of the PLRA, the civil rights injunction is more alive even in the prison and jail setting than the conventional wisdom recognizes. And by implication, in arenas in which no such congressional intervention has occurred, one might expect to see more continuity between court order practice now and in the 1980s.
Other revisionists have similarly suggested that structural reform litigation flourished in the 1990s and (putting the PLRA to one side) continues to thrive today. They have gone further, however, and argued that injunctive litigation remains very similar to that in the 1970s. As with the conventional wisdom, this revisionist story too is incorrect, at least for correctional court orders. Although, in prison and jail court orders, the 1980s and early 1990s did not see a decline in the incidence of regulation via order, there was in that time a transformation in civil rights injunctive practice from a “kitchen sink” model to something much more precise. I demonstrate this shift in the arena of prison orders, and suggest that it occurred less as a result of a top-down Supreme Court doctrinal dictat than of more diffuse forces, chief among them increasing skepticism about claims of causation more generally; the increasing prevalence of (pro bono) big firm lawyers in the cases; and the salience as models of a handful of cases in which the litigation was extraordinarily comprehensive.
In sum, I argue that contrary to prior accounts, civil rights injunctive practice did not die over the 1980s and 1990s, but was rather transformed. In its new form, however, injunctive practice flourished. In 1996, the PLRA shocked this stable system, causing a significant reduction in the volume of both new and old court order regulation in correctional settings. But there not been any further notable shift in injunctive practice’s nature. At the end of the day, even in jail and prison litigation, the civil rights injunction remains stronger than conventional wisdom would have it.
I conclude with some policy implications. In particular, to some extent, progressive scholars and policymakers have thought it relatively low-cost to allow conservatives to attack injunctive litigation. After all, if something is already dead, why expend any political capital defending it? This is a point that has a good deal of relevance right now, as Congress considers the “Federal Consent Decree Fairness Act” proposed to implement restrictions similar to the PLRA’s in other topical areas of governmental injunctive litigation. If this article is correct about prison and jail orders, the stakes of the proposed “reform” are probably extremely high; progressives should think long and hard before they allow this statute or others like it to pass without a strenuous fight.