Vanderbilt Law Review

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Rights and Remedy


Barry Friedman

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I came to Alabama in 1982, to interview for a position as a visiting professor at the University of Alabama School of Law. A large group of the faculty took me to lunch that day. I did not understand until much later that the conversation at lunch was an important part of the interview. The group moved from one topic of discussion to another, until we lighted on an area of the law in which I was willing to take and defend a position. That topic proved to be federal habeas corpus jurisdiction, and it only made sense that the chief devil's advocate was Larry Yackle. Yackle is one of the foremost commentators on habeas corpus, and it is little coincidence that his first book--"Reform and Re-gret: The Story of Federal Judicial Involvement in the Alabama Prison System"-- is his account of the prison litigation in Alabama.'

Reform and Regret, however, is much more than a story about the prison litigation. It is a story of how the State of Alabama-or at least many of its public institutions-- was run for a generation. It is a story of how one judge, and ranks of committed lawyers and public citizens,could use the courts to make policy in a state where elected officials lacked the courage or foresight to make difficult decisions. It is a story of when courts turn from dispute resolution to governance. Scholars have been fascinated with, and preoccupied by, the concept of "public law" litigation for the last ten to fifteen years. Although defined in different ways by each commentator, public law litigation generally is seen as a departure from the "traditional" model of litigation, in which judges are passive, neutral decision makers, resolving discrete disputes brought to them by individual parties. Public law litigation bears little relation to this traditional model. Judges are proactive, disputes are about far-ranging policy matters, and the parties generally are large classes-not uncommonly a class of individuals versus the government.' The difference that ultimately proved telling between "traditional"and "public law" litigation, however, was in the nature of the decrees issued and the process of enforcing those decrees. The decree generally ends the contest in traditional litigation: money damages are preferred over equitable relief, and satisfaction of the judgment commonly is a one-time affair. Just the opposite is true in public law litigation.

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