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No Day in CourtAccess to Justice and the Politics of Judicial Retrenchment$
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Sarah Staszak

Print publication date: 2015

Print ISBN-13: 9780199399031

Published to Oxford Scholarship Online: January 2015

DOI: 10.1093/acprof:oso/9780199399031.001.0001

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Changing the Incentives

Changing the Incentives

Leaving Rights and Removing Remedies

Chapter:
(p.164) 6 Changing the Incentives
Source:
No Day in Court
Author(s):

Sarah Staszak

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199399031.003.0006

This chapter examines reform efforts aimed at either protecting groups of individuals or government actors from being sued or limiting the remedies that incentivize pursuing a legal proceeding. By creating legal doctrines (like state sovereign immunity) and narrowing others (like Section 1983 actions), and by constricting the monetary incentives for bringing a case to court, these strategies serve to de-incentivize individuals who would otherwise take their grievances to court. Over time, Congress and the courts have gone back and forth over who ultimately has proper authority to address questions of remedy, therefore creating an institutional battle that has frequently masked the extent and depth of these efforts.

Keywords:   access to courts, retrenchment, attorney’s fees, punitive damages, qualified immunity, remedies, Section 1983

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