Institutional Reform Shaming

Open Access

Abstract

This Article introduces and explores the concept of institutional reform shaming, which is the public revelation of a failure to comply with a social norm with the intent of generating structural change. Although litigators have long used shaming as a tool for reform, they have typically done so reflexively and with little attention to the nuances and protocols of true reform shaming. At the same time, institutional reform litigation is itself in great need of innovation. The popular perception that such lawsuits are filed by out of touch and elite lawyers on behalf of irresponsible and unsympathetic clients is reflected in an increasingly restrictive civil procedure, legislative and judicial attitudes, and the academic commentary, which is now more interested in new governance and collaborative problem solving than in unwieldy old-school class actions. Previously, litigators had responded to this cultural narrative with a legal one, invoking only doctrine and rights. However, institutional reform shaming provides them with the cultural counter-narrative they need. Traditional litigation will always be necessary if new governance is to work; it is the stick that prompts institutions to collaborate. Reform shaming can breathe new life into this work by reviving and strengthening litigation's role in governance, while embodying contemporary ideals by driving defendants to the bargaining table.