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“Democracy by Decree: What Happens When Courts Run Government” by Ross Sandler and David Schoenbrod Yale University Press, New Haven, Conn., 288 pages, $30 This book, though written in a measured tone, deserves to be controversial, for it is an assault on much of what public interest lawyers and the judges before whom they appear have been doing for the past generation. The basic thesis of “Democracy by Decree: What Happens When Courts Run Government” is that much vital governmental power has been stripped from duly elected governors and mayors through consent orders that allow important programs — ranging over such areas as education, corrections and the environment — to be run by “controlling groups,” which the authors define as “bureaucrac[ies] consisting of attorneys for the parties, the functionaries and experts they bring into the negotiating room, and various court-appointed officials such as special masters.” The results, in the view of the authors, have often been disastrous. Billions of dollars have been channeled from more important areas into programs that — in the hands of secret and unaccountable groups of lawyers who are better litigators than managers — still operate poorly, while officials are prevented from doing the jobs they were elected to perform. The decrees “give particular interest groups impregnable entitlements that are immune from ongoing reconsideration” and extend benefits to people and groups whose rights were never violated in the first place. The authors, Ross Sandler and David Schoenbrod, professors at New York Law School, say much of the problem is an unwitting legacy of Brown v. Board of Education and the other great civil rights cases of the 1950s, when state and local governments resolutely refused to obey constitutional mandates, and close judicial supervision was required. This, they say, led to a mindset whereby many violations of constitutional and statutory rights seemed to result from the willful intransigence of elected officials. With the expansion of statutory rights in the 1960s and 1970s, and citizen suit provisions that gave plaintiffs the keys to the courthouse to enforce those rights as private attorneys general, many program areas were vulnerable to being taken over by the judicial process. Few participants are left unscathed by the book: � Members of Congress, who take the easy path of declaring vague rights and leaving it to others to define and pay for their implementation. � Governors and mayors, who sign consent decrees that allow them to blame their predecessors for the problems and to leave it to their successors to live with the consequences. � Agency officials who see consent orders as a way to enlarge and guarantee their budgets. � Public interest lawyers, who, while pursuing their own visions of the public good, use consent orders to advance their personal and political agendas, which are often at odds with the interests of their nominal clients. � Most importantly, judges who passively sign consent orders that are presented to them, but then aggressively and inflexibly enforce compliance with their minute details, even if they no longer make policy sense. The book has only two heroes. One is Nicholas Scoppetta, who, as commissioner of Mayor Rudolph Giuliani’s Administration for Children’s Services, refused to agree to a consent order that would have removed his agency’s power over the city’s programs to protect children in foster care. The other is Sarah Vandenbraak Hart, an assistant district attorney in Philadelphia who unsuccessfully opposed a consent decree concerning overcrowding in that city’s jails. The authors report that the decree capped the number of prisoners who would be kept in jail, and, as a result, many criminals were freed and went on to commit terrible new crimes. After this experience, Hart went on to champion enactment of what became the Prison Litigation Reform Act of 1996, which, in the words of the ACLU, “strips the federal courts of much of their power to correct even the most egregious prison conditions.” Except for what they call “more controversial and questionable provisions limiting the ability of prisoners to sue,” the authors say this statute’s concept “is applicable to other federal court intrusions into state and local governmental matters.” Sandler and Schoenbrod, whose work was supported by the Manhattan Institute, the John M. Olin Foundation and the Smith Richardson Foundation, take on their topic with all the fury of converts who have seen the wrong of their past ways. They themselves negotiated federal consent orders under the Clean Air Act as attorneys for the Natural Resources Defense Council in the 1970s. (I worked for them as a law student intern at NRDC in 1977, and I worked for Mr. Sandler five years later in the mayor’s transit office under Mayor Edward I. Koch.) They now write that “[o]ur court victories did little to clean the air, and our successes were mostly at the sufferance of society.” The book ends with a detailed set of recommendations to limit the judicial role in overseeing governmental programs. Among them: � Decrees should be entered only if they go no further than necessary to protect plaintiffs from illegal injury. � Decrees should protect only the plaintiffs before the court, and not others who may be injured but who are not party to the litigation. � Judges should temper their concern for protecting individual rights with concern for the public’s right to democratically accountable state and local governments. � When faced with a state or locality in violation of an open-ended, impractical statutory mandate, the court should find a violation but not issue an affirmative decree, thus effectively remanding the controversy back to the political branches of government. � Standards for modification or termination of decrees should be relaxed. � Appellate courts should review trial court actions under consent decrees much more closely. � The remedial obligations in consent decrees, but not the underlying judgment of liability, should lapse when the consenting chief executive leaves office. � Decrees should be assigned to a new judge after eight years “to ensure judicial impartiality.” This closely documented and impassioned book deserves to be the guidepost for one side in any debate on the proper role of institutional reform litigation. A central question in such a debate, barely touched upon in the book, is whether diminishing the role of the courts in overseeing government institutions, as Sandler and Schoenbrod advocate, will cause elected officials to take more seriously their roles as protectors of society’s least fortunate, or whether it will leave the powerless once again to their own devices. Michael B. Gerrard practices environmental law in the New York office of Arnold & Porter.

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