Institutional Reform Litigation in an Era of Governance

This article examines the effects of governance reforms on the role of the courts in institutional reform litigation. It also explores the impact on governance of judicial deference to executive control of local provider networks. The 1999 Olmstead decision and its aftermath illustrate these mutuall...

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Bibliographic Details
Published inAdministrative theory & praxis Vol. 31; no. 4; pp. 577 - 584
Main Author Reed, Christine M.
Format Journal Article
LanguageEnglish
Published Abingdon Routledge 01.12.2009
Public Administration Theory Network
Taylor & Francis Ltd
Subjects
Accountability
Administrative law
Americans with Disabilities Act 1990-US
Communitarianism
Communities
Courts
Decision making
Developmental disabilities
Disabilities
Federal courts
Governance
Government agencies
Government services
Judges & magistrates
Judicial reviews
Jurisprudence
Legal reform
Legitimacy
Litigation
Medicaid
Nursing care
Public administration
Reform
Reforms
Services
State budgets
Studies
Subordination
Symposium: Public Law and Public Administration Theory
Waivers
United States > US
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Summary:This article examines the effects of governance reforms on the role of the courts in institutional reform litigation. It also explores the impact on governance of judicial deference to executive control of local provider networks. The 1999 Olmstead decision and its aftermath illustrate these mutually reinforcing tendencies. State home and community-based Medicaid waiver programs support de-institutionalization but create no legally enforceable rights to services. Conversely, lower federal court cases since Olmstead have resulted in settlement agreements and only incremental expansion of waiver services. These trends stand in stark contrast to institutional reform litigation in the 1970s. Judicial deference to executive control is consistent with an emerging model of legitimacy based on political accountability to a general public interest. To conclude, an outline is presented of a new jurisprudence of community to replace the current jurisprudence of rights that subordinates the right to belong to one's community to the individual's right to be free from the confines of state programs.
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ISSN:1084-1806
1949-0461
DOI:10.2753/ATP1084-1806310407