Decreeing Organizational Change: Judicial Supervision of Public Institutions
In the last fifteen years or so, courts have issued a small but significant number of decrees requiring that governmental bodies reorganize themeselves so that their behavior will comport with certain legal standards. Such decrees, addressed to school systems, prison and mental hospital officials, welfare administrators, and public housing authorities, insert trial courts in the ongoing business of public administration. In this article, Professor Horowitz traces the origins, characteristics, and consequences of organizational change decrees. He finds their roots in an unusually fluid and indeterminate system of procedural forms and legal rules, a system hospitable to the impact of changing ideas about the performance of bureaucracy and the role of the courts. He explores the problematic character of organizational change litigation, underscoring the ways in which organizational behavior is fraught with a variety of informal relationships beyond the contemplation of the courts. In Professor Horowitz's judgement, efforts to augment the capacity of courts to cope more effectively with organizational change litigation may redound to the disadvantage of the judicial process by emphasizing the new managerial role or the courts at the expense of their traditional moral function. He concludes by suggesting that capricious budgetary ramifications, unintended consequences, and the impact of unconventional enforcement practices on the courts themselves be included among the elements of a full evaluation of organizational change litigation.
Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 32 Duke Law Journal 1265-1307 (1983)