Rights, remedies, and organizational change: A theory for school desegregation.

摘要

Over the past thirty years, many public institutions have been subject to court orders because federal judges have found unconstitutional conditions therein. Although many scholars and writers have developed theories of adjudication that embrace expansive institutional reform litigation, there exists no principled framework for understanding the structure of these remedial actions.; Focusing on one type of institutional reform litigation, school desegregation, the dissertation utilizes rights theory and organization theory to create a framework for the court's role in devising and overseeing implementation of complex remedial orders. As a preliminary matter, the dissertation highlights formative periods in the history of equity to demonstrate that the federal courts have the inherent power to order these remedies but lack remedial principles by which to exercise that power consistently and effectively.; The development of remedial principles begins with an analysis of the nature of the right in school desegregation cases. The interest theory of rights is a useful tool for identifying the interests protected by the right to equal protection in the context of school desegregation because it aids courts in identifying appropriate remedies and determining when those remedies have been successfully implemented. Identification of the relevant interests at stake in desegregation cases is the first step toward creating remedies that are tailored to those interests and vindicate the constitutional right at stake. But the vindication of rights also requires that the remedies chosen be implemented. Institutional defendants are functioning bodies with distinct structures, routines, and environments that are ordinarily hostile to change. The dissertation explores tenets of organization theory in order to understand the circumstances under which large organizations might be more receptive to change, and demonstrates how organization theory could provide judges with a useful analytical framework for creating, approving, and terminating desegregation remedies.