Against Secret Regulation: Why and How We Should End the Practical Obscurity of Injunctions and Consent Decrees (Symposium: Rising Stars: A New Generation of Scholars Looks at Civil Justice)

Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, instructing the covered entities not only what they may not do, but also what they must do and how they must do it. Moreover, the reach of injunctions can extend well past their explicit scope because injunctive orders can serve as models for broader regulation or legislation and can set the boundaries of a regulatory agency\u27s enforcement efforts. But as this Article develops, notwithstanding the individual and collective importance of all these injunctions, they languish in practical obscurity, unavailable to all but the extraordinarily persevering researcher who joins inside information with abundant funds. For this Clifford Symposium on civil justice, I describe the problem, argue that the situation is unacceptable in the modern information era, and propose a solution