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August 13, 2014

"How Prisoners’ Rights Lawyers are Preserving the Role of the Courts"

The title of this post is the title of this notable new article on SSRN authored by Margo Schlanger. Here is the abstract:

This article is part of the University of Miami “Leading from Below” Symposium. It canvasses prisoners’ lawyers strategies prompted by the 1996 Prison Litigation Reform Act.  The strategies not only comply with the statute’s limits but also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners.
Part I summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes in prison litigation, but demonstrates there are still many cases and situations in which courts continue to play a role. Part II looks at three methods by which plaintiffs and defendants can jointly obtain injunctive-type relief in prison cases — by crafting stipulations that comply with the PLRA’s constraints, by structuring the relief as a conditional dismissal, or by setting up the possibility of state-court enforcement. Part III examines plaintiffs’ coping methods for the PLRA’s provisions easing the path to termination of decrees, whether litigated or consent. Two types of preparation for a termination motion have emerged.  First, the parties sometimes agree to stretch out the remediation period more than the PLRA’s default two years.  Second, plaintiffs have worked to ensure that they are collecting sufficient information to inform their potentially hurried response to a termination motion.
It is my hope that the examples presented can help counsel and judges in prisoners’ rights cases thread the needle that the PLRA presents

August 13, 2014 at 11:18 PM | Permalink

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