FEATURE — Summer 2007

Margo Schlanger is a professor of law.
Courting Change

In her influential research, law Professor Margo Schlanger looks at ways litigation induces institutions, in particular prisons and jails, to reform themselves.

by Judy H. Watts

On any given day, more than 2.2 million people are confined in the nation's nearly 5,000 jails or prisons; over the course of a year, as many as 13.5 million spend time there. According to the June 2006 report of the Commission on Safety and Abuse in America's Prisons, which includes these figures, some people may be legitimately deprived of liberty—but they cannot be victimized, abused, or neglected. "We must remember," the authors note, "that our prisons and jails are part of the justice system, not apart from it."

Law Professor Margo Schlanger is acutely mindful of the place of such institutions in the justice system. An authority on jails, prisons, and litigation, she sits on the private, nonpartisan commission, which Nicholas de B. Katzenbach, former U.S. attorney general, and John J. Gibbons, former chief judge of the 3rd U.S. Circuit Court of Appeals, co-chair. A large portion of her innovative, interdisciplinary legal research is devoted to court proceedings involving the civil rights of people in jails and prisons.

After graduating from Yale Law School in 1993 and completing a two-year clerkship for Justice Ruth Bader Ginsburg of the U.S. Supreme Court, Schlanger became a trial attorney with the Civil Rights Division of the U.S. Department of Justice, enforcing civil rights that primarily involved jails, prisons, and police departments, and seeking to reform troubled institutions through litigation. Her academic research—which in varying combinations and degrees is empirical, methodological, and theoretical—began while she was an assistant professor of law at Harvard from 1998 to 2004. Much of her scholarship then and now concerns how litigation induces the sued institutions to change their behavior. She also has taken a theoretical look at the ways institutions' thinking changes when they are faced with major lawsuits and has analyzed the mechanics involved.

In "Beyond the Hero Judge," her first article in this vein, Schlanger describes the ways lawyers for the two parties structure their relationship using litigation as a method of disputing. [All of Schlanger's publications are on her faculty Web site: http://schlanger.wustl.edu.] Arguing against conventional wisdom—as she does repeatedly in articles filled with interesting findings—she critically examines prison and jail court orders, which "shed light on other flavors of institutional reform cases." Among her points are that "the orders themselves have always been less the result of heroic judging ... than of a process in which prison and jail administrators, state and local counsel, prisoners' rights lawyers, inmates, and judges all play crucial roles." Accordingly, she writes, in part, civil rights injunctive practice (which seeks policy or operational change) is less affected by the increasingly conservative federal bench than many observers think.

A large portion of Professor Margo Schlanger's interdisciplinary legal research is devoted to court proceedings involving the civil rights of people in jails and prisons.

Holding institutions to account

Schlanger's Harvard Law Review article "Inmate Litigation" examines such factors as when prisoners brought lawsuits and against whom, and then analyzes the effects on the institutions involved. "Regardless of how the lawsuits come out," she explains, "they hold institutions to account, and that tends to make them more attentive to the law."

Most recently, in "Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders," which appeared last year in the New York University Law Review, Schlanger explores another side of civil rights litigation and continues to think about it as a forum for disputes rather than as a direct source of law. She describes the landscape—how suits by groups of inmates rather than individuals changed over time—and then provides a more theoretical analysis of what those changes meant to defendants. She also suggests that, contrary to established thinking, "there is every reason to believe that public law litigation and structural reform are alive and well in many arenas," and she predicts that the story of such decline "will frequently prove false on systematic inquiry, as it has in jails and prisons."

Research that includes such quantitative and qualitative empirical work defines the agenda of a weekly faculty super-seminar, the Workshop on Empirical Research in the Law. "It's an intellectual treat," Schlanger says. "It has been such a great thing for me to talk with colleagues interested in the subject of empirical methods, and I think it really has pushed my work ahead."

Other assets in Schlanger's professional portfolio are more methodological pieces. One, for example, analyzes for other researchers the reliability of the Administrative Office of the U.S. Courts' huge public database and suggests solutions for its flaws. A different set of articles focuses on the law and theory of torts—wrongful civil acts, deliberate or accidental, that injure another person. Among these are "Second-Best Damage-Action Deterrence," a law-and-economics analysis of how litigation and doctrine together shape the deterrent signal that lawsuits send to institutions with myriad lawsuits against them, and "Hedonic Damages, Hedonic Adaptation and Disability." Schlanger wrote the latter—a soon-to-be published tort theory piece that addresses an important legal controversy—with her husband, Samuel Bagenstos, a professor of law who recently was appointed School of Law associate dean.

The common denominator of all Schlanger's articles, including those not mentioned here, is litigation and the ways it affects the people who experience it.

Schlanger's article "Inmate Litigation" examines such factors as when prisoners brought lawsuits and against whom, and then analyzes the effects on the institutions involved. "Regardless of how the lawsuits come out," she explains, "they hold institutions to account, and that tends to make them more attentive to the law."

Speaking from the perspective of the scholarly community, James B. Jacobs, the Warren E. Burger Professor of Law at New York University Law School, is emphatic about Schlanger's contributions. "Margo is a terrific scholar," he says. "Her empirical and conceptual research on the flow and impact of prisoners' rights litigation is the best scholarship to date on this subject. She has enormous energy, great intellectual powers, and impressive scholarly creativity. In addition to all that, she is charming and a joy to spend time with." He adds, "I wish I had her as a colleague here at NYU."

Creating civil rights litigation database

For years, Schlanger's work required examining the court orders in civil rights cases—documents that often were exceedingly difficult to locate. Because she "thought it pathetic that there was no way to get them more easily," she characteristically decided to do something about the situation.

With support from Kent D. Syverud, dean and the Ethan A.H. Shepley University Professor at the School of Law, and the new Center for Empirical Research in the Law, Schlanger led a database-development team of more than 50 students from the law school and the American Culture Studies Program in Arts & Sciences. The result: the Civil Rights Litigation Clearinghouse, a cutting-edge database that houses thousands of documents related to more than 1,000 civil rights injunctive cases in a multitude of areas. Unusual because it provides comprehensive case information, the database is available to the public at http://clearinghouse.wustl.edu.

All Schlanger's academic efforts will unquestionably serve the greater good; she also is very involved in public service. In addition to being a member of the prison commission, she is among the lawyers for the plaintiffs in an ongoing fight against a punishing ordinance directed at immigrants in the City of Valley Park, Missouri. Other pro bono work includes representing the American Civil Liberties Union as counsel of record in Supreme Court litigation and participating in efforts to amend the Prison Litigation Reform Act.

The law, of course, is also part of Schlanger's home life with Bagenstos, whom she met in the Justice Department, and her 7-year-old daughter and son. "The children like stories," she says, "and we've long since run out, so now they ask us to tell them a case. Then they say, 'Who won?' And then they ask, 'Who should have won?'"

University nurtures academic entrepreneurship

So what does an East Coast ivy-leaguer who once worked at The New Yorker say about academic life at a premier Midwestern university? That venerable magazine's ex-fact checker—who so enjoyed working on legal stories that she decided to go to law school—is enthusiastic. "Washington U. is a terrific place! I have very interesting colleagues and lots of support for what I want to do. Collaborating across schools is easy. That has been lovely, and I have learned a lot from my colleagues in economics and political science. This is a place where academic entrepreneurship can be very fruitful."

That's not all. Schlanger says the students—both law students she teaches and the Arts & Sciences undergraduates who helped build the Clearinghouse database—are "terrific." And she pays her law students one of the highest compliments possible. "They are not only smart," she says, "they are kind. They are interested in learning and helping to teach one another. They're wonderful to work with."

She adds: "I tell my students they should take moral responsibility for their professional choices: They should only take a job that they think is both fun and in some way good for the world. Someday we'll tell our kids the same thing."

Judy H. Watts is a free-lance writer based in Santa Barbara, California, and a former editor of this magazine.

Visit Professor Margo Schlanger's Web site: http://schlanger.wustl.edu.