Structural Reform Litigation: Remedial Bargaining And Bureaucratic Drift

Sven E. Feldmann, Kellogg School of Management
Anthony M. Bertelli, University of Georgia

Abstract

Initiated by interest groups representing the interest of a class of agency clients, structural reform litigation shapes the administration of important policy domains, particularly in the social services. Employing a spatial bargaining model we show that, instead of holding the agency to its mandate, structural reform litigation constitutes an institutional tool that creates bureaucratic drift even if courts are policy neutral. Since courts permit negotiation between agency and interest group plaintiff in designing remedies, it is very difficult for a legislature to enforce statutory constraints via judicial oversight and to stem this form of policy drift.