AJ 025 Chapter Notes - Chapter 11: Consent Decree, Special Master, Flypaper

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AJ 25
Constitutional law
Sandler and Schoenbrod
Intro - Institutional reform litigation: consent decree
o Jose P. v. Ambach - student from Puerto Rico, suffers variety of mental
problems, NY failed to conform to the law that required to have an individual
assessment of his needs; didn’t do it in time, not in compliance
Remedy: appoints special master to oversee, Judge Nickerson
Begins as missing a deadline becomes a 20+ year consent decree
(controlling group is seeking benefits)
Agree to do certain things (pg. 4), transferred power from elected
officials and transferred it to the controlling group
Rosenstein - Hollow Hope: Special interests groups is much easier
than grassroots organizing; victory they seek is often elusive (allure of
relying on litigation is like relying on fly paper)
o Pg. 6-7: Congressional requirement for curb cuts - Philadelphia sued, budget
managed by controlling group again
o ADA: all buildings open to public be made accessible (aspirational reform)
o Pg. 8 - compliance vs. how to comply
When courts dictate how to comply with the law, they assume the
responsibility of elected officials
How Court Management Works - ch. 5
o Judges should be able to compel spending on a variety of issues
Neither power of the sword nor the purse
o Pg. 115: public law litigation vs. private law litigation - courts have to take
on responsibilities of executive and legislative branch in order to
implement policy (theme: ill-equipped to be prospective, society-wide
policy makers)
Private: contest between two people, what happened in past, self-
contained episode, bases remedy on nature of the right violated,
party-initiated” and party-controlled”
Public: involves a host of interested individuals, what should happen
in future, ongoing saga, bases remedy on considerations of public
policy, structured and controlled by judge”
o Pg. 197: how to reform
Should stick to protecting plaintiffs from illegal injury
Should leave policy making to elected policy makers
In rare cases where judges are needed to make policy, judges need
checks and balances
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