The archetypal constitutional plaintiff represents a class, sues in federal court, and asks the court to declare something unconstitutional and to effect a remedy against a local or state government official. If this litigant succeeds, the court must accommodate its remedy to federalism's perquisites. The remedy should advance some substantive or constitutional purpose. The mutual respect compelled by federalism exacerbates the inherent difficulties of attaining a successful remedy. This article examines the remedial relationships between class actions, declaratory judgments, and injunctions. The remedial task is to convert law into results. Most people comply with the law when it is communicated and known. Federalism operates without friction when state and local officials respect and enforce federal law. But law is often out of touch with individual, cultural, or regional values: prohibition was widely ignored; school prayers continue; and school desegregation still faces widespread opposition. Stare decisis means that courts tend to follow earlier decisions. Unless a higher court in the hierarchy has decided a binding precedent, however, a court need only follow an older case if "correct." Even "binding" precedent merely tells a court what to do; it says nothing coercive to a layman. The bitter-end defendant poses the remedial dilemma. For example, four years after the Supreme Court held the Virginia miscegenation statute unconstitutional, a white soldier and his black fiancee applied for a marriage license in Calhoun County, Alabama. The probate judge refused the license because it was "illegal." A deputy attorney general agreed, saying, "[w]hen the U.S. Supreme Court rules in a case it is just binding on people in that particular case . . . . They don't just wipe these laws off the books all over the United States because of one ruling." When people deny precedential value, a stiffer prospective remedy is in order to ensure compliance. Courts have several remedies. Simply "taking over" is probably the most extreme judicial remedy. The legal word for a judicial takeover is receivership, managed by a receiver or a master. Courts usually use receivers in economic insolvency; a receiver for a moral or constitutional bankrupt would be an innovation. Federal courts almost always refuse to appoint receivers to state and local government posts. Second, the court may enjoin and compel the defendants, at the risk of contempt, to do, to forebear, or to cease. Litigants and courts favor injunctions, the central prospective remedy. Third, the court may merely declare, telling the parties how the law affects the controversy. Declaratory judgments are an emerging constitutional remedy. Several "persuasive" techniques make up the fourth alternative. A court may do nothing except retain jurisdiction, obviously implying, "I am keeping my eye on you." The court may also appoint monitors or observers, or ask the parties to form committees, to file periodic reports, and to submit plans. These alternatives may be summoned alone or in combination with declaring and enjoining.
Prospective Remedies in Constitutional Adjudication,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol78/iss2/2