Article

Suing Courts

Frederic Bloom

Professor of Law, Brooklyn Law School

Christopher Serkin

Professor of Law, Brooklyn Law School

We thank Rebecca Aviel, Ben Barros, Ursula Bentele, Peter Byrne, Michael Cahill, Ed Cheng, John Echeverria, George Fisher, Susan Herman, Brian Lee, Amnon Lehavi, Gregg Macey, Jonathan Masur, Jon Michaels, Eduardo Peñalver, Jim Pfander, Shelley Saxer, Nelson Tebbe, Jay Tidmarsh, Alan Trammell, and the faculty workshop participants at Vanderbilt Law School for helpful comments and conversations. We thank Liz Austin, Andrew Kenny, Tammy Wang, and the staff of the University of Chicago Law Review for truly fantastic editorial guidance. And we thank the Brooklyn Law School Dean’s Summer Research Stipend Program for its financial support.

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different—on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why suing courts might work—both in the context of judicial takings and perhaps outside it, too. It shows how suing courts can simultaneously discipline judges and liberate them. And it outlines a surprising promise for all involved—a narrow hope for impacted parties and a new kind of accountability for law-changing courts.

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