Eric Schnapper, The Varieties of Numerical Remedies, 39 Stan. L. Rev. 851 (1987), https://digitalcommons.law.uw.edu/faculty-articles/306
The Varieties of Numerical Remedies
Stanford Law Review
This article seeks to provide a coherent account of why the federal courts have used numerical remedies and an analysis of the types of cases in which they should do so. Part I describes the evolution of court ordered numerical remedies in Title VII and other employment cases and discusses the appellate courts' failure to establish any clear standards for adopting and framing such remedies. Part II argues that this lack of a coherent set of standards is due to a failure to recognize that the lower courts have been utilizing numerical remedies in six quite distinct types of cases, each with its own rationale. The analysis delineates both the differing circumstances under which each of these six types of numerical remedies is warranted and the differences in the forms of such orders that are appropriate in each case.
Part III urges that the trial courts, in deciding whether to order or deny numerical relief, should analyze more carefully the rationale and evidence on which that proposed relief is based, and that, where this has occurred, the appellate courts should subject such orders or denials only to the limited scrutiny appropriate to other factually based determinations.