Litigating the Zero-Sum Game: The Effect of Institutional Reform Litigation on Absent Parties

Authors

Elizabeth G. Thornburg, Southern Methodist University, Dedman School of LawFollow

Abstract

This article considers the impact that the use and misuse of equitable interest balancing has had on institutional reform litigation. It begins by considering the types of cases in which interest balancing was originally used in equity, and then surveys the use of interest balancing in school desegregation and employment discrimination cases. The article argues that the Supreme Court's interest balancing is flawed in systemic ways that result in overvaluing non-party interests.

Publication Title

Oregon Law Review

Document Type

Article

Keywords

equity, interest balancing, desegregation, Supreme Court

Recommended Citation

Elizabeth G. Thornburg, Litigating the Zero-Sum Game: The Effect of Institutional Reform Litigation on Absent Parties, 66, Or. L. Rev. 843 (1987)