Institutional reform litigation confronts public administrators with troubling dilemmas, court directives often contradict the duties and responsibilities of public managers. Thus, the argument for judicial intervention is rarely straightforward. The authors argue that federal courts should refuse to hear institutional reform cases not only when federal court intervention would upset a state administrative scheme, but also when the institutional defendant is governed by a precept of managerial responsibility. When the agency's challenged actions have comported with this precept, they urge federal courts to let their state counterparts determine the agency's managerial responsibility in a common law process. The analysis begins, in Part I, by addressing the Burford abstention arguments in the Marisol case itself. In part II, they turn to the application of abstention doctrines to institutional reform litigation generally, and Marisol in particular. In parts II and IV, the authors justify these abstention doctrines on grounds of federalism and the professionalism of public administrators. In part V, they propose a test federal judges may use to decide whether to abstain from an institutional reform litigation case. In part II, they derive the basis for this test from the intellectual history of the concept of responsibility in public administration.
Anthony M. Bertelli and Laurence E. Lynn Jr.,
A Precept of Managerial Responsibility: Securing Collective Justice in Instituational Reform Litigation,
29 Fordham Urb. L.J. 317
Available at: http://ir.lawnet.fordham.edu/ulj/vol29/iss1/6