CHIANG — Volume 63, Issue 3

Structural reform litigation has defined civil rights practice since Brown v. Board of Education, with the structural injunction serving as the paradigmatic remedy for institutional rights violations. Yet this approach now faces inexorable pressure from judicial minimalism, separation of powers ideology, and the declining view of judges as saviors addressing systemic injustice. Chiang contends that public interest litigation has shifted from Brown's judge-centered injunctive model toward multilateral, experimental governance approaches involving greater stakeholder participation and negotiated remedies. As traditional structural reform models face decline, the declaratory judgment—an overlooked remedy in institutional litigation—offers a more efficient alternative aligned with emerging governance practices. Chiang traces the evolution from private rights dispute resolution toward public interest litigation models established by Chayes and Fiss, identifying how modern litigation is intended not merely to procure injunctive relief but to provide leverage for negotiation with defendants. The declaratory judgment remedy uniquely suits contemporary reform because it provides negotiation incentives while accepting the temporary governance nature of reform litigation. Chiang urges litigators to abandon the traditional structural injunction narrative and adopt declaratory judgments as vehicles for systemic change, offering increased efficiency and practical impact while staying grounded in actual litigation practice and accommodating new governance concerns.

Topics: Civil Rights · Constitutional Law · Legal Theory

Keywords: structural reform · declaratory judgment · Brown v. Board of Education · structural injunction · institutional litigation · public interest law · governance