"Inmate Litigation," Harvard Law Review 116

Margo Schlanger, "Inmate Litigation," Harvard Law Review 116 (April 2003): 1555-706.

Studies of caseloads in particular areas of the law are important because they provide a more precise picture than is obtained from total cases filed and terminated. Studies that show change over time and examine

the effect of statutory enactments intended to affect filings are even more useful to our understanding of die workloads courts face. Schlanger's study of inmate litigation before and after the enactment of the Prison Litigation Reform Act (PLRA) is one such study. It is well worth the attention of court administrators and others concerned with caseload changes.

The author begins her extensive examination with a look at trends in inmate litigation, including litigation rates and changes in those rates, and the varied subject matter of such litigation. She then turns to plaintiffs' low rate of success and examines possible explanations for those outcomes, including prisoners' legal rights, the ease of access to the courts (which has meant little disincentive to file cases that stood little chance of success on the merits), prisoners' absence of counsel, and obstacles to settlement.

Then Schlanger spells out the "sea change" in inmate litigation brought about by PLRA, which changed the law of procedure and the law of remedies for inmate cases. With PLRA having made it harder for inmates to bring cases and harder to win those that were brought, a significant decrease in prisoner filings occurred despite the great increase in the number of prisoners.

Schlanger concludes by expanding her view of inmate litigation beyond damage awards that inmates might obtain. She describes effects of pre-PLRA inmate litigation on decision making in prisons, where there were effects in terms of both litigation efficiency for prisons faced with many such cases and reduction in liability exposure. Given the relative newness of PLRA, Schlanger ends by speculating about its effects in this regard.