Remedies

Professor Monica Haymond’s Intervention and Universal Remedies article invites scholars to focus on the distinctive ways that public law litigation plays out in practice. This Essay takes up her challenge. By questioning common assumptions at the core of structural-reform litigation, this Essay explains the dangers of consent decrees, settlements, and broad precedents. It then goes on to argue that intervention is an important check on these risks, and should be much more freely available in structural reform cases.

The Supreme Court’s changing composition and, relatedly, its increasing skepticism for the current structure and pervasiveness of the administrative state have given rise to increased constitutional challenges to agency actions that seem increasingly likely to be successful.