Structural reform revisited

California Law Review

Volumn 95, Issue SPEC. ISS., 2007, Pages 1387-1422

  Jeffries Jr , John C ^a   Rutherglen, George A ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 38849156929     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (277)

1. Paul J. Mishkin, Federal Courts as State Reformers, 35 W. & L. L. REV. 949 (1978).
2. Id.
3. Id. at 955-958 ("Another key fact about institutional decrees is that the relief ordered often does much more than just prevent or undo constitutional violations.").
4. Id. at 967-71 (examining the factors and attitudes that "stimulate federal judges to act against state agencies and . . . provide far less inhibition against their doing so").
5. Id. at 958-59, 970-71 ("[I]nstitutional decrees . . . always involve allocation of some, and at times, large amounts of state resources . . . They then pose in crucial form the ultimate problem of legitimate power.").
6. Id. at 976.
7. Mishkin, supra note 1, at 971 ("If we are dealing with soundly established constitutional rights for which court-ordered institutional relief is unquestionably the only possible effective remedy, then surely such judicial relief is in our system fully justified.").
8. This seems perilously close to Justice Brennan's standard for prior restraints, which was of course designed completely to preclude them: "Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order." New York Times Co. v. United States, 403 U.S. 713, 726-27 (1971) (Brennan, J., concurring).
9. The original Latin maxim is "Ubi jus, ibi remedium." BLACK'S LAW DICTIONARY 1690 (4th ed. 1968).
10. For the classic American statement of the maxim, see Marbury v. Madison, 5 U.S. 127, 147 (1803): "It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress."
11. With Peter W. Low and Pamela S. Karlan, we co-author a civil rights casebook, the principal focus of which is damages actions under 42 U.S.C. § 1983 (2000).
12. See JOHN C. JEFFRIES, JR., ET AL., CIVIL RIGHTS ACTIONS: ENFORCING THE CONSTITUTION (2d ed. 2007).
13. For a very partial listing of prominent articles critical of the Eleventh Amendment, see Erwin Chemerinsky, Against Sovereign Immunity, 53 STAN. L. REV. 1201 (2001);
14. Vicki C. Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity, 75 NOTRE DAME L. REV. 935 (2000);
15. James D. Pfander, History and State Suability: An " Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998);
16. Suzanna Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v. Louisiana, 57 U. CHI. L. REV. 1260 (1990);
17. William A. Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. CHI. L. REV. 1261 (1989);
18. Vicki C. Jackson, The Supreme Court, the Eleventh Amendment and State Sovereign immunity, 98 YALE L.J. 1 (1988);
19. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987);
20. William A. Fletcher, The Diversity Explanation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983);
21. Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines (pt. 1), 126 U. PA. L. REV. 515 (1978).
22. See note 84, infra, and accompanying text.
23. See notes 74-88, infra, and accompanying text.
24. The absolute immunity afforded those exercising legislative, judicial, and prosecutorial functions also has been criticized. E.g., Margaret Z. Johns, Reconsidering Absolute Prosecutorial Immunity, 2005 BYU. L. REV. 53 (2005);
25. Kevin R. Cole, Comment, Civil Rights: A Call for Qualified Legislative Immunity for City Council Members Under 42 U.S.C. S 1983, 66 WASH. L. REV. 169 (1991).
26. See David Achtenberg, Immunity Under 42 U.S.C. § 1983: Interpretive Approach and the Search for the Legislative Will, 86 NW. U. L. REV. 497, 539-49 (1992) (arguing for priority of protecting individual rights over immunities, including absolute judicial immunity). Decisions creating exceptions to Bivens actions against federal officers on the same grounds have been criticized as well.
27. E.g., Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 SO. CAL. L. REV. 289 (1995);
28. Gene R. Nichol, Jr., Bivens, Chilicky, and Constitutional Damage Claims, 75 VA. L. REV. 1117 (1989);
29. Joan Steinman, Backing Off Bivens and the Ramification of this Retreat for the Vindication of First Amendment Rights, 83 MICH. L. REV. 269(1984).
30. See, e.g., William A. Fletcher, The Diversity Explanation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983).
31. See notes 77-80, infra, and accompanying text.
32. PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS (1983);
33. John C. Jeffries, Jr. In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47 (1998).
34. See John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87 (1999).
35. See Daryl Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 347 (2000).
36. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1373 (1953) ("What you have to keep your eye on, when a plaintiff is attacking governmental action, is whether the action plays a part in establishing a duty which later may be judicially enforced against him.").
37. Id. at 1401 ("The state courts. In the scheme of the Constitution, they [state courts] are the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones.").
38. The traditional position on executive detention has been only partially confirmed by recent decisions. See Hamdi v. Rumsfeld, 542 US. 507, 533 (2004) (holding that U.S. citizens classified as enemy combatants could be lawfully detained, but were entitled to "a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker");
39. Rasul v. Bush, 542 U.S. 466, 484 (2004) (holding that foreign citizens held in Guantanamo are entitled by statute to habeas review, but not deciding whether they have a constitutional right to review of their detention);
40. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2767 (2006) (holding that the Detainee Treatment Act did not deprive the Supreme Court of jurisdiction over appeals in habeas corpus cases pending when the act took effect).
41. Hart, supra note 18, at 1370-71 ("Consider, for example, the possibility that summary collection of taxes might be invalid if the Government did not waive its immunity to suit for refund.").
42. For a more recent defense of this view, see Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception. " 110 HARV. L. REV. 102, 125-26 (1996).
43. Hart, supra note 18, at 1377 ("Shutting off the courts from questions of law determinative of enforceable duties was one of the things Yakus assumed that Congress could not do.").
44. 5 U.S. 137 (1803).
45. E.g., Fletcher v. Peck, 10 U.S. 87 (1810) (litigation between rival private claimants to land). Nevertheless some cases under the Contracts Clause involved coercive actions by government, for instance, when a state promised tax concessions to a private individual or corporation, but then insisted on collecting the tax.
46. See Ann Woolhandler, The Common Law Origins of Compelled Constitutional Remedies, 107 YALE L.J. 77, 89-92 (1997).
47. 7 U.S. 448 (1806).
48. The case was accordingly reviewable by petition for habeas corpus. Appeals from criminal convictions in federal cases were not widely allowed until 1889, and the writ of habeas corpus was not generally available to challenge state custody before 1867. Even then, habeas corpus allowed only challenges to "jurisdictional defects" in state or federal prosecutions, a term that was narrowly construed until the middle of the 20th century. PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1425, 1430, 1539 (2d ed. 1973).
49. 41 U.S. 539 (1842).
50. A less notorious decision, McCulloch v. Maryland, 17 U.S. 316 (1819), also involved the assertion of a constitutional defense, in that case against enforcement of a state tax. McCulloch, an official of the Bank of the United States, raised the defense that the bank was constitutionally immune from state taxation as an instrumentality of the federal government. The principal constitutional claim in that case, however, was raised by Maryland, which attacked the constitutionality of the legislation establishing the bank, and with it, the basis for any claim of governmental immunity.
51. For an example, see Brandenburg v. Ohio, 395 U.S. 444 (1969).
52. For a similar case decided by the Burger Court, see New York Times v. United States, 403 U.S. 713 (1971).
53. The abortion cases, the most controversial of the Burger Court, might also be grouped with coercive actions, since the plaintiffs sought injunctions in anticipation of criminal prosecution. Roe v. Wade, 410 U.S. 113, 120 (1973);
54. Doe v. Bolton, 410 U.S. 179, 184 (1973).
55. Brown v. Board of Education, 347 U.S. 483, 486-87 (1954);
56. Baker v. Carr, 369 U.S. 186, 193-95, 196-98 (1962);
57. Monroe v. Pape, 365 U.S. 167 (1961);
58. id at 204 (Frankfurter, J., dissenting in part);
59. Miranda v. Arizona, 384 U.S. 436, 444-45, 491-99 (1966);
60. Mapp v. Ohio, 367 U.S. 643, 644-46 (1961).
61. A coerced confession, of course, is different from exclusion of evidence for failure to give Miranda warnings, which are prophylactic requirements extending well beyond actual coercion. See, e.g., Oregon v. Elstad, 470 U.S. 298, 306-07 (1985). The exclusionary rule under Miranda is closer to the exclusionary rule under the Fourth Amendment than to the exclusion of evidence obtained directly in violation of the privilege against self-incrimination.
62. See Section I.D. infra.
63. See John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 YALE L.J. 259 (2000).
64. 209 U.S. 123 (1908).
65. Id. at 159-60.
66. Id. at 144-45, 148, 165.
67. Id. at 163-64.
68. Ex parte Tyler, 149 U.S. 164, 188-90 (1893).
69. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
70. Woolhandler, supra note 23, at 105 ("The Judiciary Act of 1789 contemplated that federal equity courts might grant remedies in diversity cases even when no equitable remedies existed under state law.").
71. PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1010-11 (2d ed. 1973).
72. 169 U.S. 466 (1898).
73. Id. at 516.
74. PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 965-79 (2d ed., 1973).
75. 28 U.S.C. §§ 1341, 1342, 2283 (2000).
76. In a more recent example of the same phenomenon, Congress has restricted the issuance of federal injunctions in prison litigation. 18 U.S.C. § 802.
77. 28 U.S.C. § 1341 (2000).
78. PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 976-79 (2d ed. 1973) ("[T]he three major Supreme Court opinions seem to use the terms interchangeably, and on occasion even to suggest that the act is merely declaratory of the prior equity standard.").
79. Mitchum v. Foster, 407 U.S. 225 (1972).
80. Younger v. Harris, 401 U.S 37 (1971).
81. This restriction first applied only to criminal cases, but then was extended to "civil proceedings in which important state interests are involved." Moore v. Sims, 442 U.S. 415 (1979). Declaratory relief has been treated the same as injunctive relief for most purposes, since the binding effect of a declaratory judgment depends upon its enforceability through a subsequently issued injunction.
82. Samuels v. Mackell, 401 U.S. 66 (1971).
83. Nevertheless, the Supreme Court has allowed declaratory relief in a limited range of cases in which a criminal prosecution is only threatened, but not yet commenced. Steffel v. Thompson, 415 U.S. 452 (1974).
84. 461 U.S. 95 (1983).
85. Id. at 105.
86. E.g., Warth v. Seldin, 422 U.S. 490 (1975);
87. Allen v. Wright, 468 U.S. 737 (1984).
88. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (finding a cause of action for damages against federal officers for violation of the Constitution);
89. Webster v. Doe, 486 U.S. 592 (1988) (requiring clear statement of congressional intent to bar such causes of action).
90. In these cases, the absence of a private right of action under the statute providing substantive rights is sometimes taken to limit - in a manner difficult to articulate - the availability of damages or injunctive relief under § 1983. See, e.g., Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1 (1981).
91. Perhaps the best that can be said is that the Court looks to more recent statutes for an alternative enforcement scheme that suggests an implied repeal of private enforcement rights under § 1983. E.g., Blessing v. Freestone, 520 U.S. 329, 346-48 (1997) (leaving open remedies under § 1983 for claims under Title IV-D of the Social Security Act where that act does not provide sufficiently comprehensive remedies);
92. See Cass Sunstein, Section 1983 and the Private Enforcement of Federal Law, 49 U. CHI. L. REV. 394, 421 (1982) (suggesting a test of "manifest inconsistency" between enforcement under the statutory scheme and under § 1983).
93. EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958 284 (1992) ("On the level of institutional assumptions, the Court accepted the idea that the principal role of the national courts was to protect federal constitutional rights against interference by the states and the further idea that the federal courts were properly the 'primary' protectors of those rights.")
94. Ex parte Young, 209 U.S. 123, 151 (1908).
95. Woolhandler, supra note 23, at 123 ("Nevertheless, the Court appears to have treated trespass remedies against the wrongdoing governmental actor - with their deep roots in the common law - as existing independent of the will of the legislature.").
96. Hafer v. Melo, 502 U.S. 21 (1991).
97. It was for this reason, we believe, that Justice Kennedy's suggestion in Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 270-80 (1997) (opinion of Kennedy, J.) that Ex parte Young might be limited by a case-by-case consideration of state interests in immunity raised such alarm. To the extent that such case-by-case consideration did not merely duplicate the equitable restrictions on injunctive relief, it would have diminished the range of cases in which federal courts could order such relief. On this point, however, Justice Kennedy, spoke only for himself and Chief Justice Rehnquist.
98. 365 U.S. 167 (1961) (allowing claims under § 1983 despite the presence of remedies under state law).
99. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
100. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
101. Ann Woolhander, Patterns of Official Immunity and Accountability, 37 CASE W. RES. L. REV. 396, 399 (1987) ("The predominant method of suing officers in the early nineteenth century was an allegation of common law harm, particularly a physical trespass. The issue of whether the action was authorized by existing statutory or constitutional law was introduced by way of defense and reply when the officer pleaded justification.").
102. See, e.g., Alfred Hill, Constitutional Remedies, 69 COLUM. L. REV. 1109, 1129 (1969) ("[P]laintiffs would apparently be pressing a state-created claim, and relying upon a federally-created right solely to overcome a plea of justification.").
103. Woolhandler, supra note 23, at 77, 82 (concluding that "federal diversity courts did not closely imitate state courts in providing remedial rights in suits against state officials, either in actions at law or in suits in equity").
104. Even as late as 1969, a distinguished scholar published an important article addressing, among other questions, whether private damages actions against federal officers for violation of federal constitutional rights arose under federal or state law. Alfred Hill, Constitutional Remedies, 69 COLUM. L. REV. 1109 (1969).
105. Woolhandler, supra note 23, at 82.
106. The term comes from Twining v. New Jersey, 211 U.S. 78, 108 (1908) (evaluating whether there should be the "incorporation of the privilege" of protection from the "practice of compulsory self-incrimination" to state and local governments). While the Court rejected the "incorporation" of this particular privilege, it acknowledged that certain provisions in the Bill of Rights were within the scope of "due process of law," and thus could be applied to the state action through the 14th Amendment.
107. Id. at 99.
108. U.S. CONST. art. I, § 10 ("No State shall . . . pass any . . . Law impairing the Obligation of Contract. . .").
109. See generally, Woolhandler, supra note 23, at 89-95
110. See generally 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW § 15.2 (2d ed. 1992) ("The idea of substantive due process became the most viable concept for the Court to adopt as a legal theory to protect industry from government regulation. By the turn of the century the Court had embraced the concept fully and was ready to use it as a rationale for striking legislation that attempted to restrain the freedom of businesses to contract.").
111. In 1961, fewer than 300 civil rights actions were brought in federal court. By 1971, that number had risen to 8,267, including 3,129 prisoner suits. In 1997, more than 43,000 civil rights actions were filed, most of them under §1983. See ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS tbl. C-2A (2000);
112. Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 658 (1987).
113. Thereafter, the number of civil rights actions in federal courts seemed to level off at about 40,000 a year. ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS 162 tbl. C-2A (2005).
114. See Woolhandler, supra note 62, at 451 ("The shallow pockets of suable officials gave little incentive to sue for damages in such cases; damages were in fact an inadequate remedy for violation of rights through continuing government regulation. An anticipatory equitable remedy was likely to be the most effective action to obviate the plaintiffs loss.").
115. See sources cited in note 69, supra.
116. As mentioned, we co-author a casebook on civil rights. See note 9, supra.
117. The predecessor to that volume, PETER W. LOW & JOHN C. JEFFRIES, JR., CIVIL RIGHTS ACTIONS: SECTION 1983 AND RELATED STATUTES, was published in 1988 and provided materials for a stand-alone course focused on money damages and attorney's fees. Before that time, constitutional tort actions were most likely covered, if at all, as a footnote to a federal courts course.
118. See, for example, the second edition of Hart & Wechsler, published in 1973, which featured a four-page note on § 1983 in a book of 1600 pages.
119. PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 947-51 (2d ed., 1973).
120. By contrast, the current edition of that casebook, dedicates almost 70 pages to § 1983. RICHARD H. FALLON, JR., ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1072-1141 (5th ed. 2003).
121. Additionally, there were (and are) civil rights casebooks that provide an overview of civil rights statutes from both Reconstruction and the modern era. See, e.g., THEODORE EISENBERG, CIVIL RIGHTS LEGISLATION: CASES AND MATERIALS (2d ed. 1987).
122. Hans v. Louisiana, 134 U.S. 1 (1890),
123. is the canonical cite, though Edelman v. Jordan, 415 U.S. 651 (1974), might be a better choice.
124. For discussion of the relationship of sovereign immunity and officer suits, see John C. Jeffries, Jr., In Praise of the Eleventh Amendment, supra note 15, at 47-51 (concluding that the "rules that actually control state liability for constitutional violations are . . . not the ostensibly categorical prohibitions of the Eleventh Amendment but the more qualified doctrines of Section 1983").
125. See, e.g., Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam) (stating that federal agents could not be held liable for an unconstitutional arrest "if a reasonable officer could have believed" there was probable cause);
126. Anderson v. Creighton, 483 U.S. 635, 639 (1987) (An officer's qualified immunity is determined by "the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken,"
127. quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 819 (1982).).
128. See e.g., Brosseau v. Haugen, 543 U.S. 194, 198 (2004)(per curiam) ("Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.");
129. Hanlon v. Berger, 526 U.S. 808, 810 (1999) (per curiam) (although plaintiffs Fourth Amendment rights were violated, police were entitled to qualified immunity because law was not clearly established at the time of the violation);
130. Hunter v. Bryant, 502 U.S. 224, 228-229 (1991) (per curiam) (police officers were entitled to qualified immunity even though they erred in concluding probable cause because "their decision was reasonable, even if mistaken");
131. Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity provides "ample protection to all but the plainly incompetent or those who knowingly violate the law").
132. See Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978) (overruling Monroe's determination that local governments were not "persons" within the meaning of § 1983);
133. Owen v. City of Independence, 445 U.S. 622 (1980) (ruling that when local governments can be sued under § 1983, they cannot claim qualified immunity).
134. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112, 124-27 (1988) (plurality opinion) (taking a narrow view of official policy or custom, a question that the plurality determined largely by reference to state law).
135. In a remarkable and confusing recent opinion, the Court even suggested that the strict liability standard of Owen v. City of Independence somehow incorporated a requirement of "fault" or "culpability. " Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 406 (1997).
136. Cf. McMillian v. Monroe County, 520, 781 (1997) (finding that Alabama sheriffs were state, not county, officers, thus precluding governmental liability).
137. City of Canton v. Harris, 489 U.S. 378, 388-89 (1989) (requiring "deliberate indifference" as the standard of locality liability for failure to train, thus effectively precluding strict liability).
138. See Jeffries, In Praise of the Eleventh Amendment, supra note 15 at 58-59 ("As constrained by these interpretations, the exception of municipal liability is exactly that - a narrow deviation from the generally applicable rule of liability based on fault.").
139. See id. at 282-83 and sources cited therein (concluding that there is "no context in which the defense [of qualified immunity] has greater consequence in precluding damages for constitutional violations").
140. Indeed, one critic of qualified immunity law accuses the Court of "unqualifying immunity" by refining the procedural structure for resolving these issues in ways that move current doctrine "toward something resembling absolute immunity." Alan K. Chen, The Facts About Qualified Immunity, 55 EMORY L.J. 229, 232-33 (2006) (asserting that "[T]he Court assigns decision-making power to judges because it is extremely uncomfortable with the idea that qualified immunity is just that - qualified. The Court's recent efforts to refine this procedural structure reflect its wish to move qualified immunity toward something resembling absolute immunity.").
141. See John C. Jeffries, Jr., Compensation for Constitutional Torts: Reflections on the Significance of Fault, 88 MICH. L. REV. 82, 92 (1989) (concluding that "the mere fact that injury is caused by government unconstitutionality is not, in itself, a suitable test" for redistribution of wealth).
142. For academic attempts to improve on the Court's overdeterrence rationale, see generally PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 59-81 (1983) (explaining why "street-level" government officials may be especially susceptible to inhibition by the threat of damages liability);
143. Jerry L. Mashaw, Civil Liability of Government Officers: Property Rights and Official Accountability, 42 LAW & CONTEMP. PROBS. 8, 29-31 (1978) (noting an imbalance between the cause of action readily available to those injured by affirmative misconduct and the difficulties faced by those who are injured by a failure to act);
144. Jeffries, In Praise of the Eleventh Amendment, supra note 15, 73-78 (arguing that the interaction of the skewed incentives of government officers and the persistent indeterminacy of the constitutional standards under which they work makes overdeterrence a serious risk).
145. For attacks on this line of reasoning, see, e.g., Harold S. Lewis, Jr. and Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 756 (1992) (arguing for a modified version of respondeat superior to govern local liability);
146. Susannah M. Mead, 42 U.S.C. § 1983 Municipal Liability: The Monell Sketch Becomes a Distorted Picture, 65 N.C L. REV. 517, 538 (1987);
147. Kit Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 GA. L. REV. 597 (1988-89).
148. See Jeffries, The Right-Remedy Gap, supra note 16.
149. See also Jesse Choper & John C. Yoo, Who's So Afraid of the Eleventh Amendment: The Limited Impact of the Court's Sovereign Immunity Rulings, 106 COLUM. L. REV. 213 (2005).
150. Jeffries, The Right-Remedy Gap, supra note 16, at 113 ("Qualified immunity disfavors the backward-looking remedy of cash payments to victims of past harms and, in so doing, opens the door to forward-looking remedies requiring investments in the future.").
151. Daryl Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 347 (2000) ("Because government actors respond to political, not market, incentives, we should not assume that government will internalize social costs just because it is forced to make a budgetary outlay.").
152. Of course, one need not take Levinson's argument at full flood to recognize how it complicates and enriches traditional assumptions about the deterrent effect of awarding money damages.
153. Justice Scalia, for instance, has inveighed against the idea that there is one law of qualified immunity for police, another for school teachers, and another for every kind of state official. Richardson v. McKnight, 521 U.S. 399, 416 (1997) (Scalia, J., dissenting) (immunity is determined by function, not status).
154. See generally, Jeffries, Disaggregating Constitutional Torts, supra note 32, at 291 (exploring remedial differences among rights and concluding that "thinking of remedies in relation to specific rights would lead to better enforcement of the Constitution").
155. See Kathryn R. Urbonya, Establishing a Deprivation of a Constitutional Right to Personal Security Under Section 1983: The Use of Unjustified Force by State Officials in Violation of the Fourth, Eighth, and Fourteenth Amendments, 51 ALBANY L. REV. 173, 173-77 (1987) (physical injury is a prerequisite to recovery under any of these amendments).
156. For elaboration of this argument, see John C. Jeffries, Jr., Damages for Constitutional Violations: The Relation of Risk to Injury in Constitutional Torts, 75 VA. L. REV. 1461, 1475 (1989) ("The concern of the fourth amendment is not to curtail criminal prosecution, but to avoid unfounded (and therefore abusive) invasions of privacy. Compensation for violations of the fourth amendment should redress the invasion of privacy, not the costs of criminal prosecution.").
157. WAYNE LAFAVE ET AL., CRIMINAL PROCEDURE 109 (4th ed. 2004).
158. Miranda v. Arizona, 384 U.S. 436 (1966).
159. 232 U.S. 383 (1914) (applying the exclusionary rule in federal prosecutions).
160. 367 U.S. 643 (1961).
161. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 412-22 (1971) (Burger, C.J., dissenting).
162. References to the academic commentary can be found in CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 45 n.2 (2d ed. 1986);
163. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. III. L. REV. 363, 365 (1999) (describing most academics as "cling[ing] to the exclusionary remedy despite its costs");
164. WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 1.2 (4th ed. 2004).
165. United States v. Calandra, 414 U.S. 330, 348 (1974).
166. Id.
167. Walder v. United States, 347 U.S. 62, 65 (1954) (saying that the defendant "could not provide himself with a shield against contradiction of his own untruths");
168. United States v. Havens, 446 U.S. 620 (1980) (applying the same rule to testimony elicited on cross-examination).
169. Cf. Harris v. New York, 401 U.S. 222 (1971) (applying the same reasoning to allow use of statements taken without Miranda warnings to impeach a defendant's in-court testimony).
170. See Jones v. United States, 326 U.S. 257, 261 (1960) ("one must have been a victim of [the] search or seizure, one against whom the search was directed");
171. Rakas v. Illinois, 439 U.S. 128, 140 (1978) (limiting standing to the defendant's own reasonable expectation of privacy).
172. United States v. Leon, 468 U.S. 897, 918-25 (1984).
173. For a sampling of articles discussion Leon, see LAFAVE, SEARCH AND SEIZURE, supra note 98, at § 1.3 n.5.
174. See Illinois v. Gates, 462 U.S. 213, 217 (1983) (refusing to consider the exclusion of evidence because the issue was not presented to the Illinois courts).
175. Brown v. Allen, 344 U.S. 443 (1953), allowed federal habeas re-adjudication of all federal constitutional claims heard and decided in state criminal prosecutions.
176. 428 U.S. 465, 490-95 (1976) (review of state decisions applying the exclusionary rule on federal habeas corpus has insufficient deterrent effect on police misconduct).
177. See, e.g., Slobogin, Exclusionary Rule, supra note 98, at 366 (endorsing exclusion for flagrant misconduct while opposing it elsewhere).
178. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) (Cardozo, J.) ("The criminal is to go free because the constable has blundered.").
179. Anderson v. Creighton, 483 U.S. 635, 641 (1987) (stating that qualified immunity bars recovery for unconstitutional acts that "a reasonable officer could have believed . . . to be lawful").
180. For discussion of exclusion and money damages as substitutes, see Jeffries, Disaggregating Constitutional Torts, supra note 32, at 283 ("We could conceivably have both, but unless we are willing to sacrifice the Fourth Amendment completely, we could not have neither.").
181. Too many critics of exclusion have little to say about alternative remedies. For examples of scholars who do not ignore that issue, see Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 811-16 (1994) (endorsing strict liability in money damages);
182. Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937, 969-80 (1983) (proposing a system of restitution in place of exclusion);
183. Christopher Slobogin, Exclusionary Rule, supra note 98 (endorsing money damages).
184. 347 U.S. 483 (1954).
185. Brown v. Board of Education, 349 U.S. 294, 301 (1955).
186. Green v. County School Board, 391 U.S. 430, 437-38 (1968).
187. Codified as amended as 42 U.S.C. § 2000a et seq. (2000). For an account of the history of desegregation, see MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS 320-42 (2004).
188. 42 U.S.C. § 2000d et seq. (2000).
189. Swann v. Charlotte-Mecklenberg Bd. of Educ. 402 U.S. 1, 28-31 (1971);
190. Keyes v. School Dist. No. 1, 413 U.S. 189, 205-14 (1973).
191. 418 U.S. 717, 745-47 (1974) (injunction limited to a single urban school district).
192. Id. at 744 (finding this to be the "controlling principle consistently expounded in our holdings").
193. For a survey of such cases, see Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1029-52 (2004).
194. Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. REV. 550, 602-04 (2006).
195. Mishkin, supra note 1, at 956 ('[T]he relief ordered often does much more than just prevent or undo constitutional violations.").
196. Colin S. Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions, 65 VA. L. REV. 43 (1979);
197. Schlanger, supra note 120, at 562-63 ("Prison and jail officials were frequently collaborators in the litigation.").
198. 461 U.S. 95 (1983).
199. For other such cases, see Rizzo v. Goode, 423 U.S. 362, 371-73 (1976) (inadequate evidence that plaintiffs were likely to suffer from future police misconduct);
200. Warth v. Seldin, 422 U.S. 490, 502-08 (1975) (insufficiently specific allegations that plaintiffs would be victims of housing discrimination).
201. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (deliberate indifference to serious medical needs);
202. Wilson v. Seiter, 501 U.S. 294, 302-04 (1991) (deliberate indifference to conditions of confinement);
203. Farmer v. Brennan, 5112 U.S. 825, 832-34 (1994) (deliberate indifference to violence from other prisoners).
204. Lewis v. Casey, 518 U.S. 343, 357-61 (1996) (overly broad injunction requiring access of prisoners to legal assistance and legal materials).
205. 515 U.S. 70 (1995).
206. Id. at 87-101.
207. ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY DECREE: WHAT HAPPENS WHEN COURTS RUN GOVERNMENT 10 (2003) (characterizing conventional wisdom)
208. quoted in Schlanger, supra note 120, at 553.
209. SANDLER & SCHOENBROD, supra note 128, at 10 (again describing conventional wisdom).
210. See also Myriam Gilles, An Autopsy of the Structural Reform Injunction: Oops . . . It's Still Moving!, 58 U. MIAMI L. REV. 143, 144 (2003) (describing judicial "anti-activism").
211. Sabel & Simon, supra note 119, at 1021.
212. Id. at 1018.
213. Schlanger, supra note 120, at 553
214. (recounting a conclusion reached in Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 MICH. L. REV. 1994 (1999)).
215. Schlanger, supra note 120, at 569-602 (providing detailed evidence of the continuation of court-ordered correctional reform after passage of the PLRA and analyzing the impact of the provisions of that statute).
216. Sabel & Simon, supra note 119, at 1018-1019.
217. See, e.g., MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS 41 (1998) (describing the "comprehensive code for prison management" promulgated by the federal courts).
218. Sabel & Simon, supra note 119, at 1019.
219. For detailed description and analysis of the evolution of decrees in correctional cases, see Schlanger, supra note 120, at 601-21.
220. Id. at 602-05.
221. Sabel & Simon, supra note 119, at 1019-20.
222. See generally id. at 1021-52.
223. Schlanger, supra note 120, at 602.
224. See Margo Schlanger & Denise Lieberman, Using Court Records for Research, Teaching, and Policymaking: The Civil Rights Litigation Clearinghouse, 75 U.M.K.C L. REV. 153 (2006) (providing references to various on-line data bases of court records).
225. For an interesting discussion of the law in structural reform cases as spreading horizontally from trial court to trial court, building into a network of national standards for the administration of state and local institutions, see David Zaring, National Rulemaking Through Trial Courts: The Big Case and Institutional Reform, 51 UCLA L. REV. 1015 (2004).
226. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976).
227. Id. at 1302. These were originally numbers 4, 5, and 6 on a longer list of features of public law litigation generally.
228. See id. at 1310-13 (comparing public law litigation to the administrative process and finding it superior).
229. Sabel & Simon, supra note 119, at 1021-52 (summarizing developments in public law litigation in these fields);
230. City of Los Angeles v. Lyons, 461 U.S. 95 (1983);
231. Rizzo v. Goode, 423 U.S. 362 (1976).
232. Even in this area, the presence of private defendants is far more common in traditional "bipolar" housing discrimination lawsuits. See JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY 549-62 (2001) (describing claims under the Fair Housing Act). Where private institutions have been the target of institutional reform, litigation has long been accepted as the necessary means of adjusting the rights of interested parties, through proceedings in bankruptcy, receiverships, and class actions.
233. Theodore Eisenberg & Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 HARV. L. REV. 465 (1980).
234. Diver, supra note 122, at 562-63.
235. Newman v. Piggie Park Enterprises 390 U.S. 400, 402 (1968) (per curiam) (a plaintiff who obtains an injunction in a civil rights case, "does not do so for himself alone but also as a 'private attorney general'").
236. See Zaring, supra note 143, at 1047-57 (describing litigation by and against HUD);
237. Sabel & Simon, supra note 119, at 1047-50 (describing remedies in public housing cases).
238. See, e.g., Title VI of the Civil Rights Act of 1964, codified as amended as 42 U.S.C. § 2000d et seq. (2000) (authorizing the cut-off of federal funds to segregated school districts); the Civil Rights of Institutionalized Persons Act of 1980, codified as amended as 42 U.S.C. § 1997a et seq (2000) (authorizing the Attorney General to sue for constitutional violations in state-run prisons and jails and facilities for the mentally ill and the mentally retarded); the Fair Housing Act of 1968, codified as amended as 42 U.S.C. §§ 3601-19, 3631 (2000) (authorizing private and public actions for housing discrimination).
239. See Sabel & Simon, supra note 119, at 1091 & n. 218;
240. Zaring, supra note 143, at 1068-70.
241. 42 U.S.C. § 1973 (2000) et seq. For example, § 5 of the Act, codified as amended in 42 U.S.C. § 1973c (2000), creates an expedited procedure for enjoining changes in election practices that have not been precleared in covered states.
242. Chayes, supra note 144, at 1309 ("Legislative apportionment, although bitterly opposed as an arena of judicial intervention, seems to have worked out reasonably well."). Chayes initially offered a much longer list of instances of public law litigation. Id. at 1284 (adding employment discrimination, antitrust, securities fraud, bankruptcy, union governance, consumer fraud, environmental cases).
243. For an extended and, we think, exaggerated argument for this position, see GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991).
244. Pub. L. No. 103-322, 108 Stat. 1796 (codified in scattered sections of 8, 18, 20, 28, and 42 U.S.C).
245. Even Sabel and Simon, who are generally committed to the idea that structural reform flourishes, admit that its acceptance in policing "has been slower than in the other areas." Sabel & Simon, supra note 119, at 1043.
246. 423 U.S. 362 (1976).
247. Id. at 366.
248. Id. at 371.
249. 461 U.S. 95 (1983).
250. For insightful analysis of Lyons, see Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1 (1984).
251. See, e.g., Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV. 453, 454 (2004) (listing the Rodney King, Abner Louima, and Amadou Diallo cases, among others);
252. Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 BUFF. L. REV. 1275, 1282-90 (1999) (discussing abuses by the Chicago police department).
253. Armacost, supra note 164 at 467-72 (discussing the obstacles to successful actions for damages).
254. Graham v. Connor, 490 U.S. 386, 397 (1989) (citation omitted).
255. See generally, Jeffries, In Praise of the Eleventh Amendment, supra note 15, at 77.
256. For a detailed analysis of these obstacles to individualized, after-the-fact litigation of police in Armacost, supra note 164, at 464-72.
257. 42 U.S.C. § 14,141(b) (2000). For an account of the legislative history of this statute, see Armacost, supra note 164, at 526-31;
258. Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 BUFF. CRIM. L. REV. 815, 816-17 (1999). For criticism of the scope and effectiveness of the statute, arguing for private enforcement,
259. see Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1385, 1404-12 (2000).
260. For a list of the consent decrees, agreements, and letters of investigation, see the Department of Justice's website, at http://www.usdoj.gov/ crt/split/findsettle.htm#Police%20Misconduct%20Settlements. For a summary and assessment of the main provisions of such decrees, see Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department "Pattern or Practice" Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3, 29-51 (2003);
261. SAMUEL L. WALKER, REPORT OF THE CONFERENCE ON POLICE PATTERN OR PRACTICE LITIGATION: A IO-YEAR ASSESSMENT 2-4 (2005).
262. Observers generally agree on these salient features of the consent decrees. See Armacost, supra note 164, at 529-30 & n. 483;
263. Livingston, supra note 169, at 826-41;
264. Sabel & Simon, supra note 119, at 1044.
265. See sources cited in note 171, supra.
266. The most thorough study of one of these consent decrees, involving the Pittsburgh police department, concluded that it "dramatically changed the culture of the Bureau of Police" and that "[o]fficers and supervisors are accountable for their interactions with the public in a way that is qualitatively different from the situation that existed prior to the decree." ROBERT C. DAVIS ET AL., FEDERAL INTERVENTION IN LOCAL POLICING: PITTSBURGH'S EXPERIENCE WITH A CONSENT DECREE 35 (2002). There was, however, no way to measure numerically the improvements made by the decree because record keeping was so poor before the it took effect. Id. at 38-39. The principal drawbacks of the consent decree appear to be the inevitable consequence of any system of centralized monitoring: complaints from rank-and-file officers of lower morale, increased record keeping, and decreased flexibility in responding to situations on the job. See id. at 37-38.
267. Zaring, supra note 143, at 1072-77 (2004).
268. Schlanger, supra note 120, at 621.
269. Id. at 613.
270. For a wonderful account of the advent of big-time lawyers in correctional reform litigation, see id. at 617-21.
271. Brandon Garrett, Standing While Black: Distinguishing Lyons in Racial Profiling Cases, 100 COLUM. L. REV. 1815, 1822-26 (2000).
272. 461 U.S. at 108.
273. Zaring, supra note 143, at 1068-70;
274. Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 MICH. L. REV. 1994, 2024 (1999).
275. See Schlanger, supra note 120, at 605.
276. Mishkin, supra note 1, at 976.
277. Sabel & Simon, supra note 119, at 1090.