5.1 Introduction
It was a cold December night when Cornelio McDonald, a middle-aged black man, was returning home after a visit to his mother. On his way, he had to cross a major road, and waited for a gap to do so. At this point, an unmarked red van pulled up suddenly in front of him, trapping him between two parked cars. The driver rolled down the window and started questioning Mr. McDonald about where he was coming from. When McDonald wanted to know why he was being stopped, the two plainclothes police officers in the car got out, identified themselves and, without further explanation, began searching him. Asking why he was being searched, Mr. McDonald was informed that the officers wanted to ensure he did not have any weapons. Mr. McDonald objected. Together with eleven other plaintiffs, he subsequently sued the city of New York in a federal class action for its policy of ‘stop and frisk’, that is stopping and searching people on the street.Footnote 1 They argued that the New York Police Department’s (NYPD) policy constituted an unconstitutional infringement of their civil rights, in particular, the Fourth Amendment, prohibiting unreasonable searches, and the Fourteenth Amendment, guaranteeing equal protection. Judge Shira Scheindlin at the New York District Court agreed, considering the NYPD’s policy of stop-and-frisk an unconstitutional exercise in racial profiling.
So far, so conventional. Yet, the litigation itself was anything but conventional. In a nine-week trial, the District Court analyzed 4.4 million recorded stops by the NYPD between 2004 and 2012, on the basis of officers’ reporting forms. It emerged that in spite of a much earlier report of New York’s Attorney General, which had found that 15% of police stops in NYC were not based on reasonable suspicion, no action had been taken by the NYPD to change this; indeed, leading officers had not even read the report. Instead, the introduction of a new statistics-based performance management system called Compstat had further increased pressure on officers to make a certain number of stops in order to obtain a positive productivity assessment. This was picked up in the media, and the ensuing criticism led to the introduction of a state law prohibiting quotas for stops within the NYPD. Yet, things had hardly changed thereafter. An official memo circulated to all officers made clear that the number of stops would continue to be relevant for their productivity assessment.Footnote 2 Considerations of efficiency rather than regard for the legality of stops also characterized further reforms within the NYPD, pointing to an almost complete lack of consideration in the NYPD for the legality of their stop-and-frisk policy. Based on this evidence, Judge Scheindlin concluded that the NYPD employed a policy of indirect racial profiling, which violated New Yorkers’ constitutional rights under the Fourth and Fourteenth Amendments.
However, the case did not stop here. In a wholly separate opinion, joining the case with another one on New York police procedure,Footnote 3 Judge Scheindlin set out a series of expansive remedies in considerable detail. She ordered the NYPD to revise its existing policies and training in accordance with constitutional standards and New York state law and set out some standards to guide this work, including emphasizing that any stop must be based on individualized suspicion grounded on objective facts ascertained by the police. This explicitly included redrafting the existing forms. To contribute to the reform efforts and supervise them, Judge Scheindlin, moreover, appointed an official monitor who would have to report back to the Court every six months on the progress made. She also ordered New York City to institute a pilot project with body-worn cameras for police officers in parts of the city. Finally, Judge Scheindlin required the city and NYPD to involve community organizations in the reform process, announcing the appointment of a facilitator to that end and requiring that he or she hold ‘town hall’-style meetings in the city to get feedback from stakeholders on the proposed course of action. As it stands, this supervision is still ongoing. Meanwhile, the number of stops made by NYPD’s police force has decreased significantly without any relevant rise in crime.Footnote 4
5.2 Stakes of the Argument
I contended in Part I of this book that arguments from failure may fill gaps by allowing institutions to react to a problem where other institutions are not responsive. Cases like Floyd, where there was clearly need for major reform, illustrate this – and accordingly, many progressives argue for judicial intervention in such cases. Ultimately, this is right. But to understand why, the stakes involved need more careful consideration than they often receive in that literature. In particular, we should not view expansive structural remedies simply as a way to provide effective protection of rights, requiring little further justification. Such an approach is too easy. To understand why, it is important to tease out briefly what precisely is normatively at stake in cases involving structural reform litigation along the lines of Floyd.
The answer is that it is no less than our core understandings of what a court is and does. Recall Chayes’ description of traditional litigation as bipolar, party-initiated and party-controlled, retrospective as well as self-contained, with right and remedy interdependent.Footnote 5 Though this formulation breathes the spirit of US common law, with its traditional focus on party control, it is altogether not sharply distinct from Christoph Möllers’ description of the judicial function as ‘adjudicat(ing) individualized cases on external initiative, retrospectively’.Footnote 6 To Möllers, this feature of judicial procedures is key to preserving our individual autonomy, whereas we realize our collective autonomy in wider democratic procedures and institutions. This narrower view of resolving individual disputes, or something like it, encapsulates what both lawyers and laymen usually think of as the judicial function.
Cases like Floyd pose a challenge to this traditional idea. Where judges engage in structural reform, they address collective problems. As a result, the court will typically no longer be able to focus on the individual and her complaint as in ordinary judicial processes, where a particular individual and her specific situation and circumstances will be the focus of attention. If courts deal with a case involving hundreds of rights violations, the fact that the situation impacts person A in a slightly different way than person B will likely not be the focus of judicial attention. The effort must instead be to find a broader structural solution to the problem at hand. Moreover, as the mode of reasoning shifts to more general problem-solving, typically not fully provided for in existing doctrine or precedent, rights may turn into bargaining chips in policy debates, even if the ultimate aim remains to better realize or protect such rights. Not least, judges can no longer simply take a retrospective decision on whether rights have been violated in the past in such cases. They need to put forward a plan to remedy this situation for the future. As a result, judges will often act in ways that strongly resemble the approaches of legislators or administrators setting out policy.
One response to this might be that we simply need to revise our outdated ideas of judging and courts. Yet, we should resist such a conclusion, even though there is something to be said in favour of a more collaborative understanding of the separation of powers. Judicial intervention along the lines of Floyd and similar cases has its place, but should not become the new normal, justified simply in terms of ‘making rights real’. For one thing, we should by no means take the effectiveness of judicially driven structural reform for granted. For another, we should be wary about the outcome-based logic at play and the democratic and rule of law stakes involved. As courts issue detailed remedies and/or supervise reform processes over longer time periods, our ability to collectively exercise our autonomy and determine ourselves how we want to live together in a democratic society is diminished. It also puts at risk the ability of judges to keep their distance from the parties and stay impartial, thus preserving their authority as independent dispute solvers. They increasingly risk turning into policy-makers who cannot avoid making political judgments, thus becoming the target of political criticism.Footnote 7 Finally, even the constraint that courts only operate on external initiative (from which some systems provide exceptions) – thus distinguishing them from legislators who may pursue their own agenda – may be compromised where judges monitor and evaluate progress on a constant basis. In the Floyd litigation, for example, Judge Scheindlin had suggested to litigants in a hearing on a prior case against the NYPD to bring new litigation instead.Footnote 8 She, thus, essentially prompted the litigation that followed, behaving more like a proactive administrator than an unbiased arbitrator. While Floyd was certainly an outlier in this regard and Judge Scheindlin was subsequently removed from the case for that reason,Footnote 9 the fact itself speaks to the changing role of judges who become ‘managers’ exercising significant control over the way the litigation unfolds. Where they seek to avoid this, for example by appointing independent third persons as masters or monitors as in Floyd, this provides only a partial fix. They nevertheless stay involved by supervising reform efforts (and these third persons) over longer time periods. Moreover, the holding of town hall meetings through a court-appointed ‘facilitator’ with ‘stakeholders’ speaks to the fundamental shift from the rights of individual plaintiffs to the broader interests of the community and stakeholders. And while such moves might have benefitted rights holders in the Floyd litigation, it is easy to see how things might not work out that way every time.
These are just the most important problems and risks associated with courts engaging in structural reform. Not all cases are prone to all of these risks and problems to the same degree. Some remedies are easier to defend than others, and sometimes, the issues at stake make us more willing to take them on. But this doesn’t detract from the fact that structural reform should not be considered part of the ordinary arsenal of courts, as something ‘normal’. This is true even where the practice may have become commonplace as a result of broad dissatisfaction and a lack of trust in the political system. Structural reform litigation needs to remain an exception, at the very least in normative terms – and this is why arguments from failure matter as a tool to both analytically capture what is going on and distinguish those cases where it provides the right approach from those where it does not.
5.3 Core Requirements
The framework we developed in Part I involved four core questions: (1) whether there is a broader legal framework in place that comes with expectations of mutual collaboration and support; (2) whether there is some violation of law, which has been allowed to persist; (3) whether there is a gap in the existing arrangements rather than a comprehensive framework of government; and (4) finally, a proportionality test. I will start here with the first three before turning to proportionality in Section 5.4.
5.3.1 Collaborative Framework
The first hurdle is typically the lowest one, when it comes to structural reform litigation. At least where the litigation occurs in a domestic context rather than an international one, there is typically room for an argument about the need for collaboration and support.Footnote 10 The details will of course depend on individual legal systems, but it seems fair to say that in most constitutional democracies today, the separation of powers is no longer understood in a very rigid manner but in the sense of a broader system of checks and balances. With that comes a sense of mutual responsiveness. Sometimes, explicit constitutional principles such as comity provide broad support to concepts of collaboration. In other cases, a constitution’s particular concern with realizing certain values and goals, as is the case in transformative systems, suggests the need for working together to achieve those goals. Yet, even more traditional liberal constitutions, such as the US text with its concern with controlling power, typically leave some room for arguments for responsiveness and collaboration.
This is particularly true when it comes to the role of courts, at least in many legal systems. Though all courts fulfil certain roles in democratic societies – including settling conflicts between private people on the basis of law – different societies and legal systems understand the role of courts differently. This is particularly true in public law, where some courts are a lot more restrained and deferential than others, for example when it comes to constitutional review. Thus, for example, if courts do not engage in constitutional review in a given legal system as a matter of principle, there will usually be no argumentative space for them to engage in structural reform, because their role is understood as narrower in general.
However, where courts routinely exercise constitutional review, their role is often understood to be responsive to the political branches.Footnote 11 Thus, Joseph Weiler and Doreen Lustig suggest that ‘in some form or another the Ely thesis underlies many current regimes of judicial review within functioning democracies’,Footnote 12 referring to the idea that courts should intervene when we cannot trust the democratic process. This claim is important in our context not because Ely defended structural reform litigation, but because his broader approach to judging provides a basis for such a defence, and has in fact been relied on to that purpose (see the discussion below in this section). Ely himself was concerned with arguing for a role for courts when it came to political malfunction, rather than institutional failure. He argued that only where democratic processes malfunctioned – because insiders were blocking the channels of democratic change for outsiders or because some outsiders (isolated and discrete minorities) had little chance to prevail in this process – should courts intervene. Ely’s argument was very influential in the United States in spite of the criticism levelled against it. It has also proved influential elsewhere, and even where Ely has not been a direct influence, similar ideas are often central to justifying constitutional review.Footnote 13
Ely was concerned first and foremost with political malfunction and the question whether to intervene in the first place, not how to intervene. More recent scholarship has taken a broader approach to the matter. Rosalind Dixon argues that responsive review implies courts should act to secure a democratic minimum core (if necessary, by robust means of intervention), but should also intervene in more routine cases of malfunction where democratic processes suffer from legislative blindspots or burdens of inertia.Footnote 14 Central to Dixon’s account is her careful attention to tailoring remedies to respond to blockages and malfunction within the political system, ranging from weak form review in some cases to much more robust intervention in others. Similar to Dixon, David Landau has put forward what he describes as an intertemporal account of the judicial role, building on his previous work, defending the expansive jurisprudence of the Colombian Constitutional Court as a response to the dysfunctionality of Colombian democracy.Footnote 15 Another commentator, Stephen Gardbaum, not only argues for judicial intervention in cases where there is a ‘serious violation of one or more core democratic process values or their systematic undermining over time’ but also proposes intervention in cases where legislatures fail to hold executives accountable or where independent institutions or the political processes are captured by special interests, as well as in cases of legislative failures to deliberate.Footnote 16 Katie Young has argued in the past that courts should act as catalysts, seeking to increase the capacity of political institutions, a thought picked up in recent work by Mark Tushnet and Madhav Khosla, who also advocate a broad role for courts that includes enhancing state capacity.Footnote 17 Add to this a host of scholarly voices who support structural reform litigation in certain cases,Footnote 18 some of them discussed in Chapter 4. Differences aside, this strand in the literature shares the view that courts should respond to malfunction, however defined. Ideas of broader political malfunction and more specific institutional failures are often blurred in this work – unsurprisingly so, since democratic malfunction may often lead to or at least enable institutional failure, even if they are not the same thing. And if we accept such a broader responsive role for courts, this opens a path for structural reform litigation, at least under certain conditions.
Moreover, as previously noted, in some jurisdictions, we will find clauses granting courts broad leeway in choosing appropriate remedies, which provides an opening for courts to choose expansive and non-conventional remedies where necessary. For example, consider Art. 142 of the Indian Constitution or Sec. 172 of the South African Constitution: ‘When deciding a constitutional matter within its power, a court—…may make any order that is just and equitable…’ or indeed Sec. 24 of the Canadian Charter, which states: ‘Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.’ The existence of broad remedial clauses like these provides an argument for judges to adopt structural remedies in the cases specified. However, their absence doesn’t rule out such interventions either. And more than that: As such provisions are typically framed in a very open manner, they do not conclusively settle the issue of whether courts may step in where other institutions are failing to do their job, given that judicially driven structural reform is problematic not only for its more expansive approach to remedies, but effects broader changes to the judicial process. The existence of such clauses thus provides a path for courts to engage in structural reform, but it should not be understood as giving courts carte blanche for such interventions, independent of further considerations.
5.3.2 Violation of Law or Democratic Dysfunction
The second requirement too poses no major hurdle in most cases of structural reform litigation where we are typically dealing with a great number of rights violations. This may be different when it comes to defending the need for certain unconventional procedures deemed necessary to find out if there is a rights violation in the first place – for example, where courts are sending out a group of court-appointed experts to investigate a situation after receiving a newspaper clipping as a complaint. Insofar as the overall goal here is merely to establish the facts needed to make a finding that rights have been violated, this should, however, be understood as part of the judicial role, requiring no further justification in terms of failure, even where it involves some procedural innovations.
It is important to reiterate here, however, that the overall quality of the political system should not – absent a finding of a violation of law – constitute an argument for courts to engage in structural reform.Footnote 19 This is not to say that ideas of (broader) democratic failure or dysfunction may not have a role to play in theories of judicial review. But it is one thing to argue with Theunis Roux that judges need to take into account the ‘quality of democracy in the society in which they are operating and adapt(ing) their role to changing democratic pathologies’Footnote 20 and another to issue a carte blanche for courts to engage in structural reform depending on their assessment of politics. Nor is it to say that courts might not intervene to remedy democratic problems in line with theories of responsive review in ordinary ways.Footnote 21 It is only an argument to suggest that courts should not adopt the kind of expansive remedies we see in structural reform cases on the basis merely of a general assessment of the democratic system. This is because such overall assessments open the door for judicial populism too widely, given the contested nature of democracy as well the fact that many judges will not have the necessary skills to make that kind of judgment (see already Section 2.4.3.2).
There may be some cases where the risks involved with this kind of overall assessment appear to be mediated by the fact that there are certain institutions outside of the fray of party politics that make such assessments, potentially on the international level, such as the Venice Commission. Yet, even such international institutions are not apolitical, and their assessments typically reflect the interests of powerful actors involved in them. Moreover, even where there is arguably a good case for generalized distrust, the question is still what this means for courts with regard to concrete cases. I believe the answer should be: not very much. Remedies should still be designed with an eye to the concrete case at hand rather than simply with regard to the overall quality of the democratic system. Thus, it may be that an overall breakdown of the system will significantly limit the chances that a specific judgment will be implemented in a particular case but that assessment needs to be made on a case-by-case basis. Add to this that judges intervening strongly in ordinary cases on the basis of a general systemic assessment are also likely to be subject to sharp criticism for overstepping their role and will potentially face political backlash. For all of those reasons, we should shy away from treating generalized distrust as a blank cheque for expansive judicial intervention, where the case at hand itself suggests little evidence for any kind of institutional failure. Instead, we might say that the question should be whether judges can trust other institutions in concrete cases to faithfully implement individual judgments and to remedy by themselves broader systemic problems that lead to rights violations, where the judgment identifies them, or whether such trust is not appropriate. Though generalized distrust will therefore necessarily and legitimately serve to put judges on alert to take their role seriously and interpret the law as the phrase goes ‘without fear or favour’, it should not serve as a basis for more expansive remedies without more.
5.3.3 Non-exhaustiveness of the Existing Mechanisms
Even where we accept that courts should be responsive to the political and legal context, this is not to say that they should be allowed to engage in structural reform litigation. We also need something akin to a gap in the system as opposed to a comprehensive regulatory framework that would exclude stretching existing competences. In particular, there should not be any other more competent and/or democratically legitimate institutions to deal with the issue (the no-more-democratic-means-test). This includes other watchdog institutions that might address the problem, such as Electoral Commissions, Public Ombudspersons, and so on.Footnote 22 If so, judges should not intervene in an intrusive manner but leave broader questions of structural reform to these other institutions. Of course, the longer legal violations are going on without democratic branches or others satisfactorily addressing them, the less acceptable deference will become, and thus, the no-more-democratic-means-test is something we will have to keep in mind as we think about which cases warrant judicial interventions in the service of pursuing structural reform. Asking about alternatives requires saying more about the kind of cases and contexts where courts might undertake structural reform, and thus about proportionality.
5.4 Proportionality or: Conceptualizing Institutional Failure in Structural Reform Cases
When it comes to proportionality, I argued above that we should consider three central criteria: functionality, necessity and costs. But what does this mean exactly?
Functionality is often a significant hurdle when it comes to structural reform litigation. Existing studies demonstrate that courts in reality have very limited ability to change entrenched behaviours or overcome resistance.Footnote 23 Reforming state institutions often not just involves significant expertise in fields other than law, making judges suboptimal problem-solvers, but also requires multiple institutions to work together, including both state and private actors. Not least, it frequently involves polycentric questions that can be hard to address within the traditional formats of the judicial trial.Footnote 24 At the same time, we also know that courts have achieved important successes in some cases, such as the Indian Right to Food litigation as well as the Colombian Court’s intervention for internally displaced persons, discussed above, albeit some caveats apply even here.Footnote 25 Unfortunately, we do not have a clear template or checklist that would allow us to assess under what conditions courts may successfully intervene and in which cases judicial intervention is likely to fail. This is all the more true if we consider potential longer-term risks and indirect costs, such as the risks of eroding trust in public institutions or budgetary implications, in addition to the question whether intervention will help resolve the particular issue at stake.
However, while there is no clear empirical framework to help us, judges will usually have some indication of the kind of issues involved in individual cases and their chances of success, which will depend at least inter alia on the existence of an engaged civil society.Footnote 26 Courts are typically not able to initiate large-scale reforms on their own, without civil society support, and they will have a very hard time unless there is at least some recognition of the problem within the failing institutions themselves.Footnote 27 This is also the place where the democratic experimentalism literature provides helpful guidance, suggesting ways in which judges might open up processes and bring in interested persons, stakeholders and members of civil society, as well as independent experts, to develop plans for structural reform that remain subject to judicial control, as well as ensuring regular scrutiny and opportunity for revision, if needed.
Yet, even where structural interventions will be arguably necessary to bring about change, the costs associated with intervening may be too great to do so. Considering necessity requires saying more about the kind of rights violations whose persistence gives rise to accusation of failure in the first place. In other words, it involves assessing what kind of problem we are dealing with. Drawing on the development of the mandate of rights review in the United Nations, as discussed in Chapter 3, I argue that four central questions should guide our analysis in these cases, in addition to the broader themes discussed above. They are:
1. Are we dealing with a large number of rights violations?
2. What is our time frame? Are rights violations occurring repeatedly over some time?
3. What kind of rights and rights violations are we dealing with?
4. Is there any evidence of governmental intent or planning?
These four questions build on the existing literature on responsive review and the idea that courts have a role to play in addressing political malfunction, as well as on Cecilia Medina’s work on the Inter-American system.Footnote 28 Thus, in the typical case, a great quantity of rights violations recurring over longer time periods will be a strong indication of institutional failure. But how many people must be concerned and how long precisely this must have been going on for a court to take extraordinary steps and get involved is not a question we can answer in the abstract, independent of case and context. Quality and intent will matter, too, albeit in different and somewhat more complicated ways.Footnote 29 Not least, there are some cases, as we will see, where all indicators point towards institutional failure, but it may not on close inspection actually be a case of institutional failure because we are dealing with a rare case of reasonable disagreement.
In what follows, I explain the role these factors might play in determining when courts may invoke failure as a reason to intervene in unconventional forms, drawing on examples in the jurisprudence of different courts including the Floyd case with which we started this chapter.Footnote 30 Thinking through these elements and questions will necessarily also involve some reflection on the considerations of functionality, costs and necessity and what they can tell us about the need for distrust and intervention in individual cases.
5.4.1 Quantity and Time
5.4.1.1 Relevance
The standard case for distrust is one where a great number of similar rights violations occur repeatedly, but prompt no or no adequate response from state institutions. Both quantity and time, that is recurrence over time, are hence necessary conditions for courts to intervene in a structural manner. Without the passing of time, officials may still be busy attempting to respond to rights violations, which of course happen even in the best of all possible democracies. Both factors are also part of the few explicit frameworks employed to delineate cases that require a structural approach, such as in the Colombian unconstitutional state of affairs doctrineFootnote 31 or in Rule 61 of the European Court of Human Rights, which reads: ‘The Court may initiate a pilot-judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting State concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications.’Footnote 32 That said, efforts to define systemic and structural problems in the literature have to date not been entirely successful.Footnote 33 The best way of approaching this matter may well be through the lens of trust/distrust rather than by setting out an abstract definition that can ultimately not capture the range of different cases and constellations. Thus, judges have no reason to distrust the government and intervene in more expansive ways, where different rights violations are not sufficiently connected in the sense of stemming from the same or similar source/dysfunction.
Framing this as a matter of trust is also helpful to distinguish cases of institutional failure from more standard cases of constitutional review, where, for example, a law of general application affects a great number of people and triggers a high quantity of rights violations. On its own, the latter should not be considered a case of institutional failure and a sufficient basis for distrust, because there is only one action at one point in time (the passing of an unconstitutional law), which does not constitute institutional failure even though the rights of multiple persons are violated. Thus, not only the quantity of the rights violations in question but also of the actions leading to those rights violations matter. In cases of omission in contrast, we will refer to the quantity of rights violations rather than state actions involved. Here the time element is particularly important: At the heart of the matter is the fact that considerable time has passed without the government taking action.
Finally, my arguments so far rely on the existence of an underlying condition, namely that the government is aware of what is happening. This underlying condition is not usually built into existing jurisprudence as a requirement simply because we can generally assume awareness. This is obvious in cases where the issue has been previously litigated and adjudicated, and thus, government will have been formally put on notice. But even where no prior judgments on the issue exist, this is not necessarily a reason to rule out awareness. In the standard case where rights violations are sufficiently clear, we can reasonably expect that institutions are aware of them. Only in very rare cases where for legal or factual reasons it is not clear that rights violations have occurred, will this default assumption break down.
Return to Floyd for a concrete example: Both the quantity and the consistency/time element are clearly present here and mark it as a case of institutional failure. The analysis of police reports in the trial (in 2013) goes back to 2004, thus covering multiple years of police conduct. And though the judgment does not provide a concrete number of unconstitutional stops during that time period, it includes an estimate that the number is higher than the ‘unnecessarily conservative’ one of 200 000 suggested by the expert witness.Footnote 34 Floyd also involved a ‘consistent pattern’ of rights violations, building on a previous racial profiling case, Daniels, et al. v. City of New York, which was filed in 1999 after an unarmed African immigrant, Amadou Diallo, had been shot by the NYPD Street Crime Unit.Footnote 35 That case had ended with a settlement that required the NYPD to provide the plaintiff, the Center for Constitutional Rights, with stop-and-frisk data from 2003 to 2007. This data not only demonstrated an increase in the overall number of stops conducted by the NYPD, but also confirmed suspicions that black or hispanic citizens were targeted in the overwhelming majority of cases (over 80%).Footnote 36 Finally, awareness is not an issue in this case either given that the NYPD’s practice of stop-and-frisk had repeatedly been criticized on legal grounds, including by New York’s Attorney General, without triggering any response by the police over a period of several years.
5.4.1.2 Relationship with Other Factors
How do quantity and time relate to our other two factors, quality and intent?
Quality and intent matter too, but in different ways, as we will see below. Neither quality nor intent should be considered essential attributes for structural remedies, which are often deployed in cases where enduring rights violations result from both incompetence and incapacity. Nevertheless, I include them in my normative framework because they are central to the question when and how courts should intervene. We may wonder, in particular, if quality and intent can compensate for quantity or time. Consider cases where we encounter a particularly grave violation of human rights, say police torture of a suspect. The answer is that quality and intent can compensate for quantity to some degree, but not entirely. The more obvious (and less new) our rights violation is, for example, the more important the right involved and the graver the violation, the less we will expect there to be a large quantity of rights violations to justify structural intervention. But this applies only to a point. If we are dealing with one case involving one rights violation only, even where a particularly important right is concerned and the violation is severe, this will not be enough to draw conclusions with regard to institutional failure. This is because there can always be one isolated case, one outlier, where something has clearly gone badly wrong. In order to decide whether to take on a structural problem, judges don’t just have to determine whether the institution involved has acted illegally but must also assess whether other oversight institutions will respond in a way that addresses the problem. If so, this will typically provide a more appropriate means and thus constitute a reason for judicial deference. However, the greater the number of individual rights violations involved, and the more time has passed, the less trust in other actors will seem appropriate. (In some cases, governance failures may thus be indicative of broader democratic failures.) Even in cases of grave rights violations, then, quantity is not just relevant, but a necessary condition for judges to get involved in addressing the broader problem, even though we will require a smaller number of cases where the violations in question are sufficiently serious.
The same applies with regard to intent. Where there is evidence that the government has intentionally violated rights, we will require less in terms of quantity. If rights violations are deliberate – whether the government is deliberately ignoring or causing them – this means that judges have less reason to trust that a declaratory judgment on its own will lead to efforts to address the underlying problem. In turn, where there is no evidence for intent, we will require a greater quantity of rights violations before we will accept courts intervening in a structural manner. Again, however, the broader institutional context will matter. Though governments should as a matter of the rule of law certainly stop or endeavour to stop rights violations, governing is a complex enterprise. There may be a host of reasons why issues are not addressed appropriately. One important reason why governments may deliberately ignore even a series of rights violations may be burdens of inertia, where governments have previously declared certain policy priorities and seek to make good on those or avoid certain issues to keep fragile political coalitions together.Footnote 37 Yet, as Dixon argues, burdens of inertia do not necessarily justify intervention in strong forms.Footnote 38 The more cases and rights violations arise, however, the less defensible governmental inaction will become.
Something similar applies to our time factor. Time will matter less where there is evidence for governmental intent or even planning and the rights violations in question are of a certain quality. Where public institutions are deliberately violating important rights of many people, courts can typically place less trust in the government to address the issue. But exceptions apply and context matters. When dealing with cases arising as a result of an individual governmental agency going rogue within an otherwise well-functioning democratic system, the no-more-democratic-means-test suggests that courts should wait longer before taking drastic steps in order to give existing mechanisms a chance to resolve the issue. As previously discussed, we might think of administrative or, for that matter, federal oversight in such cases. The longer the rights violations drag on, of course, the less plausible it will be that other institutions will indeed take up the issue. At a certain point, there is no longer a need to wait and see if other more democratic mechanisms will fix things, but judges will justifiably step in.
5.4.1.3 Judicial Responses
The existence of a great quantity of cases of a similar kind typically poses challenges of an administrative and technical nature for courts that suddenly have their dockets swamped by new applications. In many cases, therefore, quantity itself drives major innovations, independently of whether we are actually dealing with a case of institutional failure. This at least is the story of the development of the pilot procedure in the European Court of Human Rights, which saw itself confronted with a significant rise of new cases in the late 1990s and early 2000s.Footnote 39 The pilot procedure allowed the court to take one of a set of similar cases and order governments to adopt a general remedy within a year to address not just the case at hand but also other similar cases on the Court’s docket. Another way of handling a large quantity of cases is to allow for class actions, as already discussed. Perhaps the most straightforward and common technique is, however, to bundle similar cases, as is done in a wide range of jurisdictions. However, where courts adjudicate the claims of multiple persons at a time, this will often necessitate changes to existing procedures in the interest of efficiency. As there are now many plaintiffs rather than just one, it also means less attention to individual cases. Thus, courts may decide to make changes to existing standards for admissibility and evidence as well as potentially introduce new methods of evidence-gathering. In some cases, it will not be possible to conduct a full inquiry into each individual rights’ violation. In practice, courts may often turn to other forms of fact-finding, more familiar from legislative or administrative practices. This might involve holding hearings with the stakeholders involved, or commissioning reports from other bodies, ideally bodies with significant independence of their own, such as ombudspersons, auditors, independent commissions and the like. They may also involve scientific experts, civil society organizations or governmental institutions themselves and sometimes create new commissions or committees tasked with evidence-gathering. Which of those mechanisms is most appropriate will depend on the concrete case and problem at hand as well the broader legal context in which they operate. In some cases, such efforts at fact-finding may blur into solution-finding.
Courts will also often seek structural remedies when they need to address a large quantity of rights claims – whether by selecting one case for a pilot judgment or by bundling cases or allowing for a class action – and when those rights violations have been going on for a long time. Considerations of efficiency and distrust come together in such cases. The fact that the rights violations have been going on for some time suggests that trust in existing mechanisms to address the issue is no longer warranted. And the multitude of rights violations suggests the need for a structural approach that goes to the roots of the problem concerned.
5.4.2 Quality
5.4.2.1 Relevance
We have already seen above that quality, too, has a role to play in assessing institutional failure. Quality should be considered a necessary criterion for a diagnosis of failure insofar as we must be dealing with rights that are either constitutional or human rights, or – in systems without constitutional rights – rights with a quasi-/small-c-constitutional status.Footnote 40 For if the rights at stake are ordinary statutory rights, this should not be considered a sufficient basis for expansive structural intervention. Statutory rights have been granted by the legislature in the first place. Where failure refers to a violation of statutory rights, it is therefore ultimately about holding legislators to their own word. Judges may of course intervene to declare that such rights have been violated. However, insofar as they seek to exercise more expansive powers that run counter to their established role, the lack of legislative consistency, demonstrated by a pattern of violations of statutory rights, is not a sufficient basis insofar as it may simply indicate changing opinions within the legislature. Structural intervention in such cases may also create problematic incentives for governments to outsource administrative control and oversight to courts, following the pattern that US structural reform litigation has often taken, with the enforcement of (sometimes unrealistic) federal mandates by federal courts.Footnote 41 This is different when constitutional, human rights or statutory rights that enjoy a higher, quasi-constitutional status of some kind are involved. Governments are bound to protect such rights, and parliaments cannot decide within the ordinary process to abolish them.
Apart from this qualifier, however, quality – in terms of rights or rights violations – should not per se be understood as a necessary condition for diagnosis of failure, while nevertheless being relevant to choosing how to respond. In brief, quality matters particularly where the quantity and time element themselves do not provide sufficient reason for distrust. For even if rights violations may be considered as relatively minor, the fact that there is a great number of them and significant time has passed where nothing has been done to respond suggests a governmental failure, and so courts should be allowed to address it by initiating structural reform, at least where such an intervention comes with a chance of success. However, the more we are dealing with minor violations, the longer judges will wait to intervene in a broad structural manner – and thus, quality matters. This raises the question what quality refers to and thus what counts as ‘minor’ and ‘major’.
5.4.2.2 Unpacking and Identifying Quality
Medina argues that quality is determined by three factors: the type of right, the character of the violation and the status of the victims in question.Footnote 42 I agree with Medina, but add a fourth factor: newness.
Start with the quality of the right in question. What we mean by quality here is of course the importance of the right, which can often be difficult to determine at the outset.
Among constitutional or human rights, some will be weightier than others. The paradigmatic example is the right to life. Life is generally understood to be one of the most important rights, if not the most important, and the jurisprudence of constitutional and human rights courts generally underlines that. That said, in not a few cases, it will be more uncertain how important a given right is. Given that few systems rank rights in any straightforward manner, the importance of a given right may be contested. Judges may need to draw on arguments from sources like constitutional theory to resolve the issue: for example, to articulate the importance of free speech to democracy. In some systems, certain rights may also be more important than others given their respective constitutional histories, and this is something courts may take into account. Judges may also consider arguments from international law to assist in determining the quality of right. Thus, Medina notes that in international debates, the question whether something gives rise to erga omnes obligations is considered part of ius cogens or is part of a human rights treaty from which no derogation is possible is relevant to this kind of analysis,Footnote 43 and at least in cases of doubt, such distinctions may help inform decisions in domestic courts as well.
The character of the rights violation seems somewhat more straightforward to assess at first glance. But in practice, this, too, may be difficult and tied in with our third factor, the status of the victim. The gravity of the rights violation can often be hard to assess in the abstract. But there is no way around such an abstract assessment where courts are not dealing with one individual case but instead face a great quantity of rights violations and thus have to rely on generalizations that may ignore that different plaintiffs may experience the violation of their rights differently. One attempt to accommodate some differences in this regard is to pay attention to the social status of the victim and his or her need for protection, cashed out sometimes in international and less often in constitutional law in terms of vulnerability.Footnote 44 In other words, it matters who the victims are and what their means of redress are, that is whether they will likely have a hard time responding if a government inadequately responds to judgments finding their rights violated.
Finally, we should consider a fourth important factor, namely the newness of the rights’ claim in question. The concept of newness as an argument for assessing the justiciability of claims has been developed in more detail by James Fowkes. The basic idea is that the newer a given legal claim, the more assistance judges will need to enforce it or the more they will themselves have to try and do.Footnote 45 That may imply the need to proceed more carefully. There are some overlaps with Jeff King’s arguments for incrementalism in socio-economic rights adjudication,Footnote 46 but I use the term newness here in the most straightforward sense, as applied relative to the existing case law and doctrine on a given issue.
Why should newness matter to our assessment of institutional failure? Where our understanding of what qualifies as a right is new – such as rights to same-sex marriage or environmental rights – or enforcing such rights requires thoroughly new mechanisms, it may take longer for institutions to respond to a pattern of such ‘new’ rights violations. That may be so even once it has been judicially established in previous judgments that we are in fact dealing with rights violations in these cases. The reason for that is that newer rights claims can require more extensive changes to existing laws or practices or may encounter significant social resistance.Footnote 47 Delays may therefore be more understandable and provide less of a reason for distrust, even though this will change over time. Thus, the lagging enforcement of Brown v. Board of Education in the United States was initially viewed by the judges with some understanding. That started to wane as resistance increased and no progress was made, which ultimately led to the development of structural remedies like busing.Footnote 48 Newness also matters when it comes to tailoring judicial responses insofar as courts themselves may also find it hard to set out upfront what needs to be done and thus may need to preserve room for flexibility.Footnote 49
Return once again to Floyd. Looking only at the violation, we might be tempted to dismiss the quality aspect. A stop-and-frisk overall represents a fairly short and minor incursion of privacy and equality, as compared to the taking of a life. However, the quality of the right involved matters, too, as does the status of the victims. Floyd is a case dealing with structural racism against a classical minority that has long faced hostile prejudice and oppression. And while Floyd involves doing substantially new things, Judge Scheindlin emphasizes that the rights violated were ‘sacred’Footnote 50 and long-established rights.
5.4.3 Intent
5.4.3.1 Relevance
Intent should not be considered a necessary condition for structural intervention, but is nevertheless relevant to the question when and how to intervene.
In Quiroga’s understanding of the concept of gross human rights violations in the international sphere, this fourth element is labelled, not intent, but planning. She quotes the Austrian scholar Ermacora, who argued that the violations ‘must form an integral part of a political system where effective remedies do not exist and where the authorities tolerate or even ordered their perpetration’.Footnote 51 However, while this requirement may have had its place in the development of international mechanisms of human rights review,Footnote 52 it should not be considered a necessity in a domestic context.
Many cases in domestic structural reform litigation, involve situations where there is no such deliberate planning at all, but instead (relative) incapacity.Footnote 53 Incapacity arises where rights violations continue not because of deliberate intent or indifference by the government, but because governmental institutions cannot put a stop to them within the existing institutional infrastructure, budgetary and legal framework, and fail to address the issue adequately for this reason. That said, as I have argued previously, incapacity and resistance are often combined in cases of structural reform litigation, even though some scholars consider the difference between them to be central.Footnote 54 If a situation were entirely beyond repair, there would be no need to involve courts. We will expect institutions thus make serious efforts to resolve the problem, potentially working with other state institutions and other actors, including, if necessary, making major changes. Where they fail to do so, there will at the very least be an element of negligence, and thus unwillingness.
And both in cases involving incapacity and involving resistance, a declaratory judgment is unlikely to put a stop to other identical rights violations. This is straightforward in cases of intransigence where governments tolerate or intentionally commit repeated violations of law, in particular, where previous judgments have not brought about needed change. But even in cases of incapacity and incompetence, judicial intervention beyond the ordinary may be required given that it seems unlikely that another declaratory judgment will trigger major changes if existing institutions have previously demonstrated incompetence in addressing the problem.
Existing scholarship suggests that courts should defer more in cases of incapacity and adopt more robust responses in cases of intransigence.Footnote 55 This is correct, with one important exception for cases of disagreement, to which I return below. Where there is evidence for governmental planning or deliberate indifference to ongoing rights violations, courts should be more sceptical towards adopting dialogic approaches that hand an issue back to the parties for consensual problem-solving. They should be more inclined to issue firmer directions and potentially increase judicial oversight. The more institutions exhibit explicit resistance and bad faith, the less there is a basis for trust. The absence or presence of intent is thus relevant to assessing quantity and time, such as how long judges should wait to get involved in a more expansive way. In cases of incapacity, this waiting period is more important than in cases of intransigence and resistance. At the same time, cases involving significant intent may often be hard for courts to tackle successfully, as there is likely to be resistance that needs to be overcome and this may imply the need for some creativity.
5.4.3.2 Identifying Intent
Intent can often be hard for courts to assess. There are two approaches towards identifying intent in constitutional jurisprudence. One is the indirect route, which often plays a role in anti-discrimination law. Thus, where courts can find no rational basis for a particular law or where the aim pursued by the government might be achieved equally effectively in another less rights-restrictive manner, courts may assume discriminatory intent.Footnote 56 More recently, some courts have also adopted more explicit procedural forms of scrutiny,Footnote 57 sometimes in the form of so-called semi-procedural review.Footnote 58 This, too, opens up avenues to inquire into governmental intent (inter alia). For example, US courts have in the past few years increasingly relied on what US commentators describe as small-p process arguments, drawing on the procedural faults or simply deviations from ordinary procedures as an argument for heightened judicial scrutiny.Footnote 59 Such arguments have played a role in scholarly debates on the Trump travel-bans, though the Supreme Court itself did not want to inquire into the motivations for introducing the bans.Footnote 60 In Britain, the Court assessed the legality of the prorogation of the British Parliament through an inquiry into the governmental process leading up to the advice given by the government to the Queen to prorogue Parliament.Footnote 61 Scrutinizing procedure may therefore enable courts to identify hidden agendas and motivations. However, this is not a failsafe approach. Some procedural flaws will merely signal that there is something wrong, for example that there was no good faith effort to address certain issues and problems or indeed sloppiness, rather than intent to cause them in the first place. Nevertheless, such investigations into governmental processes can also serve the additional purpose of providing information about how the institutional failure came about and/or of the government’s response to it. This in turn may enable courts to tailor their own response in a way that is both minimally invasive and efficient.
Return once more to Floyd. Though it would go too far to say that the rights violations in that case were intentional, it clearly mattered in the case that the NYPD had long disregarded questions of constitutional rights, focusing instead narrowly on considerations of efficiency in evaluating staff performance, even after it had been put in notice by the previous litigation in Daniels. Overall, the NYPD emerges from this litigation as an institution that not only practised an unconstitutional policy for a long time but also showed little willingness to change that fact even after several judicial and other interventions, the last one in the trial at hand. This is expressed in Judge Scheindlin’s assessment and is ultimately an important reason for the adoption of particularly expansive remedies in the case. Unlike in many other similar US cases, Floyd did not involve a consent decree: The remedy was not negotiated by the parties and then ‘accepted’ into law by the court, because the city and the NYPD refused to agree to it.
5.5 Disagreements
We now have a rough picture of what the inquiry in standard cases of institutional failure might look like. However, things don’t always map quite as neatly onto our framework as they do in Floyd. The most obvious and important exception are cases of disagreement.
Disagreements over the right interpretation of existing law, and rights in particular, pose a challenge to arguments for expansive judicial action in cases of institutional failure. If institutions deliberately engage in actions that courts consider rights violations, this is prima facie a case of resistance – and thus within our existing framework legitimizes expansive judicial intervention. But what about disagreements where institutions and officials act according to their own best understanding of their role and legal duties?
The correct answer to that question is – as so often in law – ‘it depends’. First, it seems important to note that we are not discussing whether governments are obliged to follow judicial orders. As a matter of law, they clearly are. However, it is a separate question what precisely courts may do and how far they may go, if other state institutions refuse to implement judicial orders or governments otherwise show resistance. The latter question, which is our question here, is not one to which positive law holds an answer. Instead, it calls for a broader discussion of the role of courts in a democratic society.
Disagreements about law and rights are real. Some authors, such as Jeremy Waldron, have suggested that parliaments are better suited than courts to deal with disagreements about rights in particular.Footnote 62 Parliaments are directly elected by the citizens, and they can address issues in a more comprehensive manner than courts that operate in the language of law. This language may be an obstacle to addressing issues adequately, because it forces us to frame the discussion in particular ways, in terms of applying previous precedents or the original meaning of constitutional framers long since dead.Footnote 63 In some countries, parliaments therefore retain the legal right not to act on judicial findings – as in the United Kingdom – or to pass laws notwithstanding their incompatibility with certain rights – as is permitted under the Canadian Charter. Such mechanisms have been described as part of a ‘dialogic’ or ‘weak form’ model of rights review, though that idea is not exclusively confined to formal frameworks of legislative override.Footnote 64 As Mark Tushnet explains, weak form review seeks to reconcile the idea of democracy and self-governance with the idea that there are some limits to self-governance, as expressed by judicial review.Footnote 65 Formal provisions for legislative override are comparatively rare. Somewhat more common are softer forms of weak review, where courts retain the last word but exercise their authority in a way that typically provides legislators with the means to pursue their chosen policies in some other way rather than obstructing specific policies wholesale.Footnote 66
These considerations are useful in our context here as well. Insofar as courts adopt structural remedies, they intervene more directly in legislative and/or administrative processes and thus leave less room for disagreement and dialogue among the different branches. If governments deliberately do not implement judgments, there is – under a traditional conception of the separation of powers and the judicial role – often little courts can do, apart from holding officials in contempt and or taking other similar measures to sanction the non-compliance. Yet, whether this is a problem and gap in the system that needs addressing – for example by means of structural reform litigation – or whether it should be considered as part of the original design that preserves spaces for institutional disagreement is not a straightforward question. It depends on the scope and precise meaning of judicial supremacy and the judicial role in individual systems.
One way of dealing with disagreements in the context of accusations of institutional failure might be to approach this solely as a matter of selecting the right remedies. We might then, for example, argue that while cases of resistance qualify as institutional failure, courts should respond flexibly to them, for example by initiating a process of shared problem-solving among stakeholders rather than decreeing policy from the bench. However, not only is it problematic to qualify rights disagreements as failures as a matter of ordinary language, but it also doesn’t solve the problem, given that existing scholarship routinely calls for more robust intervention in cases of resistance.Footnote 67 Thus, we still need to distinguish cases of illegitimate resistance from cases of legitimate disagreement along the lines sketched out by Jeremy Waldron.Footnote 68
To do that, I propose four criteria to consider in order to decide if we are dealing with a legitimate disagreement – and note again that this is relevant here only to the question how to intervene, not whether to intervene at all:
1. First, the institution that disagrees must be a legislature.
2. Second, the disagreement must be publicly aired and serious, that is, there must have been a genuine public debate that did not exclude key voices or stakeholders.
3. Third, the legal system overall must be a well-functioning democracy.
4. Fourth, the right in question or its application to the case(s) in question should typically not be part of long-established judicial precedents or doctrine.
Why these criteria and where are they coming from? The first criterion is ultimately a reference to Waldron as well as existing mechanisms of override, which presuppose a parliamentary decision. This may seem unnecessarily narrow, in particular where we are dealing with presidential systems. Should we not instead consider opposition by any directly elected officials, including, for example, presidents?Footnote 69 I would argue though that we shouldn’t because we need to construct our exception narrowly. We need to know if we are dealing with a serious and well-considered disagreement, and thus, it is vital that there be a debate and that the body that represents the people is involved and at the very least backs a government that wants to disagree. This means that while we may not need an explicit parliamentary statement or decision as we have in more dialogic systems, such as the United Kingdom or Canada, we do need some parliamentary accountability. Merely presidential opposition does not qualify therefore, even where the president in question has been directly elected. This is because one person is not representative in the same way as a parliament is, and if we are considering when disagreements with judicial decisions are legitimate, this should matter.
The second criterion links to these considerations and concerns the necessity of an inclusive and serious public debate. The rationale for this criterion is again to enlarge the democratic legitimation by ensuring that key voices have a say and can be heard. A public debate also forces the government to stand up for the issue and argue its case. This makes it more unlikely that it will adopt self-serving positions or positions that seek to indirectly discriminate against parts of society and which it will therefore not want to defend publicly. Similarly, scholars such as Matthias Kumm have argued in the context of proportionality analysis that courts should take into account whether parliament has previously debated an issue in a serious and respectful manner and tailor the degree of judicial scrutiny accordingly.Footnote 70 This criterion links to our previous discussion about identifying intent and the possibilities of procedural review.
The third requirement is closely connected to the other two. The democratic legitimacy of a parliament depends on whether it operates in a fully democratic system. It will be lacking this legitimacy where there are significant electoral flaws and/or significant parts of the population are in principle or in practice disenfranchised. Thus, the resistance of Southern institutions in the United States to federally mandated school desegregation would not constitute a legitimate disagreement, given that black citizens were in practice disenfranchised in large parts of the South at the time. This also ties back in with other broader arguments about more robust judicial review in cases of democratic dysfunction.Footnote 71
Finally, resistance to a judgment will be more likely to be legitimate where it involves an element of precedential or doctrinal newness, whether it is the right in question that is new or its interpretation by the court.Footnote 72 I have mentioned newness already in the context of discussing the quality of rights violations, but it should also play a role in the context of assessing the legitimacy of disagreement. Where courts interpret rights in a new way or create new rights, we should be more open to the existence of a legitimate disagreement. In contrast, where we are dealing with a disagreement with respect to long-settled understandings of law, this should typically not be considered legitimate – and we should scrutinize the quality and inclusiveness of public debates particularly carefully.
5.6 Conclusion
In this chapter, I have situated structural intervention by judges as a way of responding to governmental failure within our broader normative framework. Drawing on existing theories of judicial review, and in particular the work of John Hart Ely and, more recently, the writing on comparative representation reinforcement by scholars such as Rosalind Dixon, I argue that those theories and, in particular, the idea of malfunction suggest that courts may address dysfunction through structural remedies and in other unconventional ways.
That said, I have argued that malfunction in our context here needs to be defined narrowly and targeted towards combatting enduring rights violations rather than broader democratic dysfunction. To this end, I have proposed a set of questions in the second part of this chapter to help judges determine whether they are dealing with a case of institutional failure that requires judicial responses that go beyond the ordinary role of judges: to declare what the law is in individual cases, and typically retrospectively. These questions pertain to the quantity, consistency and quality of rights violations and the intent of those responsible for the situation not having been remedied.
This framework is hardly revolutionary. Judges already ask many of these questions, and elements of the framework are familiar from the existing judicial repertoire. This is a good thing, I believe, because it shows that the task is manageable. Nevertheless, what I propose here goes beyond the existing literature by offering a path for structural intervention under a set of narrowly defined conditions where courts cannot trust other institutions to fulfil their role. It, thus, attempts to chart a middle path between the traditional position still held in many jurisdictions of the world, where courts would never intervene in a structural manner, and the growing expectation in other parts of the world that courts are there to fix all manner of problems and make up for broader democratic dysfunction. In this context, it is important to recall that structural intervention will not always or necessarily serve those who are weak or vulnerable but may be a tool for very different interests.
Open access