Mirabile dictum!: The case for "unnecessary" constitutional rulings in civil rights damages actions

Notre Dame Law Review

Volumn 74, Issue 2, 1999, Pages 403-437

  Greabe, John M M ^a,b,c  

^a US Ct Appeals the First Circuit ^*  (United States)

^b DARTMOUTH COLLEGE   (United States)

^c HARVARD LAW SCHOOL   (United States)

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EID: 70349470023     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (186)

1. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162-63 (1803) (citing 3 WIL-LIAM BLACKSTONE, COMMENTARIES *23, *109). According to one commentator, Justice Marshall took the ancient maxim underlying his promise - ubi jus, ibi remedium ("where there is a law, there is a remedy")-as "a kind of self-evident matter." William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 2. See also Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1733, 1778 & n.243 (1991) (summarizing the establishment of the ubi jus, ibi remedium principle as a putative first principle of the American legal tradition).
2. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162-63 (1803) (citing 3 WIL-LIAM BLACKSTONE, COMMENTARIES *23, *109). According to one commentator, Justice Marshall took the ancient maxim underlying his promise - ubi jus, ibi remedium ("where there is a law, there is a remedy")-as "a kind of self-evident matter." William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 2. See also Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1733, 1778 & n.243 (1991) (summarizing the establishment of the ubi jus, ibi remedium principle as a putative first principle of the American legal tradition).
3. Richard H. Fallon, Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 COLUM. L. REV. 309, 338 (summarizing an argument made in Fallon & Meltzer, supra note 1, at 1787-91).
4. See Fallon, supra note 2, at 337 n.165 (1993) (collecting cases and summarizing the various governmental immunities).
5. 457 U.S. 800 (1982).
6. See infra text accompanying notes 25-33; see also Fallon, supra note 2, at 338 n.166 (collecting cases and summarizing the various individual immunity doctrines).
7. See United States v. Leon, 468 U.S. 897, 908-13 (1984).
8. See Stone v. Powell, 428 U.S. 465, 489-95 (1976) (precluding federal habeas corpus relief for state prisoners deprived of their Fourth Amendment rights unless the state has not provided for full and fair litigation of the Fourth Amendment claim).
9. 489 U.S. 288 (1989).
10. See Fallon & Meltzer, supra note 1, at 1746-49 (outlining the operation of Teague and its progeny and noting the extraordinarily broad reading the Supreme Court has given the phrase "new rule").
11. See john M.M. Greabe, Spelling Guilt Out of a Record? Harmless-Error Review of Conclusive Mandatory Presumptions and Elemental Aisdescriptions, 74 B.U. L. REV. 819, 822-30 (1994) (describing the evolution and operation of criminal harmless-error doctrines).
12. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
13. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
14. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
15. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
16. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
17. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
18. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
19. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
20. See supra note 1. Focusing on the personal immunities that have recently emerged, one commentator has (representatively) stated: "The Framers would have found the current remedial regime, in which a victim of a constitutional tort can in many cases recover from neither the officer nor the government, a shocking violation of first principles, trumpeted in Marbury v. Madison, that for every right there must be a remedy." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 812 (1994) [hereinafter Amar, Fourth Amendment First Principles]. A sampling of the many other multi-contextual critiques arguing that current law is insufficiently sensitive to remedial interests includes Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987) [hereinafter Amar, Of Sovereignty and Federalism]; Scott D. Danahy, Comment, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Businesses, 25 FLA. ST. U. L. REV. 679 (1998); Fallon & Meltzer, supra note 1; Sheldon H. Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 WASH. U. L.Q. 221 (1983); Hari M. Osofsky, Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches, 11 N.Y. INT'L L. REV. 35 (1998); Bruce A. Peterson & Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME L. REV. 447 (1997); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23 (1989).
21. See, e.g., United States v. Leon, 468 U.S. 897, 956 n.15 (1984) (Brennan, J., dissenting) (predicting that the Leon majority's adoption of a good-faith exception would lead to a freezing of Fourth Amendment law); Jonathan M. Freiman, The Problem of Qualified Immunity: How Conflating Microeconomics and Law Subverts the Constitution, 34 IDAHO L. REV. 61, 80-83 (1997) (criticizing the qualified immunity doctrine for its law-freezing tendencies); Karen M. Blum, Qualified Immunity: A User's Manual, 26 IND. L. REV. 187, 193-94 (1993) (similar); Nahmod, supra note 11, at 259 (similar); Rudovsky, supra note 11, at 53-56 (similar); cf. Fallon & Meltzer, supra note 1, at 1797-98, 1819 (acknowledging the potential for law-freezing posed by Harlow, Teague, and the harmless-error doctrines).
22. See, e.g., United States v. Leon, 468 U.S. 897, 956 n.15 (1984) (Brennan, J., dissenting) (predicting that the Leon majority's adoption of a good-faith exception would lead to a freezing of Fourth Amendment law); Jonathan M. Freiman, The Problem of Qualified Immunity: How Conflating Microeconomics and Law Subverts the Constitution, 34 IDAHO L. REV. 61, 80-83 (1997) (criticizing the qualified immunity doctrine for its law-freezing tendencies); Karen M. Blum, Qualified Immunity: A User's Manual, 26 IND. L. REV. 187, 193-94 (1993) (similar); Nahmod, supra note 11, at 259 (similar); Rudovsky, supra note 11, at 53-56 (similar); cf. Fallon & Meltzer, supra note 1, at 1797-98, 1819 (acknowledging the potential for law-freezing posed by Harlow, Teague, and the harmless-error doctrines).
23. See infra text accompanying notes 25-37 (elaborating upon how the qualified immunity doctrine facilitates such merits bypasses). Two descriptions of the merits bypass in action can be found in my discussions of Birmingham v. Schacher, No. 94-35685, 1995 WL 655167 (9th Cir. Nov. 7, 1995), set forth infra in text accompanying notes 127-36, and Solo v. Flores, 103 F.3d 1056 (1st Cir. 1997), set forth infra in text accompanying notes 145-56.
24. Teague is explicit on this point: "Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague, 489 U.S. at 310 (plurality opinion). Harlow only has such an effect. See infra text accompanying notes 34-37.
25. See infra note 35.
26. Three Affiliated Tribes v. Wold Eng'g, 467 U.S. 138, 157 (1984); see also Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring).
27. See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490, 526 (1989) (O'Connor, J., concurring in part and concurring in the judgment) (citing Ashwander, 297 U.S. at 347 (Brandeis, J. concurring)).
28. See id. at 532-34 (Scalia, J., concurring in part and concurring in the judgment) (compiling a non-exhaustive list of nine instances in which the Supreme Court has decided a constitutional question on broader grounds than was strictly necessary).
29. Although a more generalized study of the costs and benefits of novel issue bypasses by courts, and a concomitant across-the-board normative proposal, would be a worthy enterprise, I confine my focus to civil rights damages actions because merits bypasses in this context pose a number of unique problems not presented in the Leon, Teague, and harmless-error settings. First, and most fundamentally, it is only in the context of a novel-issue bypass in a civil rights damages action that a claimant will not receive any adjudication of his or her claim by a judicial officer. When there has been a Leon, Teague, or harmless-error bypass, at least one judicial officer will have addressed the constitutionality of the challenged conduct, be it the magistrate judge or district judge who initially determines that there is probable cause for a warrant to issue (Leon bypass), the state court judges who have rejected a habeas petitioner's claim on direct review (Teague bypass), or the trial judge who, over a defendant's objection, commits the act that, if erroneous, was harmless (harmless-error bypass). Second, the actors whose conduct is challenged directly in civil rights damages actions tend to be non-lawyer executive officials, whereas the actors whose conduct is most directly at issue in the other three situations tend to be judicial officers trained in the methods of constitutional interpretation. Thus, the notice-giving that accompanies a novel constitutional ruling is properly regarded as more crucial in the context of civil rights damages actions than in the other three situations. Cf. infra text accompanying notes 123-39. Third, important issues of non-criminal constitutional law - for example, First Amendment law, the law of excessive force, Eighth Amendment law, and civil due process claims - arise and are decided almost exclusively in civil rights ac-tions. It is therefore particularly important that novel issues not be routinely bypassed in such actions. Cf. Joseph D. McCann, The Interrelationship of Immunity and the Prima Facie Case in Section 1983 and Bivens Actions, 21 GONZ. L. REV. 117, 140 n.147 (1985/ 86) (asserting that a damages action raising an issue of first impression is the most common of the means by which constitutional civil rights-can become clearly established).
30. I direct my remarks primarily to appellate judges because the prevailing view is that, absent unusual circumstances, it takes either a Supreme Court opinion or an incircuit federal appellate opinion to "clearly establish" the law for qualified immunity purposes. See generally Karen M. Blum, Section 1983: Qualified Immunity, 576 PRACT. L. INST. LITIG. 513, 595-649 (1997) (collecting cases). See also infra text accompanying notes 25-33 (elaborating the qualified immunity concept). I emphasize, however, that a merits bypass in civil rights damages action tends to generate the costs discussed below whenever it is indulged by any jurist.
31. See infra text accompanying notes 123-39.
32. See infra text accompanying notes 140-56.
33. Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 1, 32 (1996) (arguing generally for a "minimalist" approach to constitutional adjudication, but acknowledging the need for "maximalist" lawmak-ing where the uncertainty costs of a minimalist approach are too high).
34. 500 U.S. 226 (1991).
35. 403 U.S. 388 (1971).
36. In relevant part, the statute reads: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. §1983 (1994).
37. Bivens authorizes damages suits against federal officials; § 1983 authorizes damages suits against state and municipal officials.
38. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (describing the qualified immunity defense); see Johnson v. Fankell, 117 S. Ct. 1800, 1803 (1997) (observing that both state officials sued under § 1983 and federal officials sued under Bivens enjoy qualified immunity).
39. Nixon v. Fitzgerald, 457 U.S. 731, 744-45 (1982) (citation and internal quotation marks omitted) (alteration in original). Recognizing that the burden of defending against lawsuits can prompt a hesita-tion to act in the same way as the threat of a damages award, the Supreme Court has made clear that qualified immunity is an entitlement to " immunity from suit rather than a mere defense to liability" because "like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, the Court has stated that "[i]mmunity ordinarily should be decided . . . long before trial," Hunter v. Bryant, 502 U.S. 224, 228 (1991), and preferably even before discovery, see Mitchell, 472 U.S. at 526. It also has reaffirmed that government defendants may take purely law-based appeals from denials of pretrial motions asserting the qualified immunity defense, see Johnson v. Jones, 515 U.S. 304, 311-12 (1995), and that they may do so more than once in the same case, see Behrens v. Pelletier, 516 U.S. 299, 305-11 (1996).
40. See Malley v. Briggs, 475 U.S. 335, 343 (1986) (emphasizing that the qualified immunity standard leaves "ample room for mistaken judgments").
41. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
42. Ringuette v. City of Fall River, 146 F.3d 1 (1st Cir. 1998).
43. Anderon, 483 U.S. at 638.
44. Cf. Owen v. City of Independence, 445 U.S. 622, 651 n.33 (1980) (noting lawfreezing concerns in prohibiting a municipality from asserting the good faith of its officers as a defense to a § 1983 action).
45. In his most recent compilation detailing recent developments in civil rights litigation, Leon Friedman lists 79 representative appellate cases where public officials were awarded qualified immunity because no direct precedent generally prohibited the conduct at issue. See Leon Friedman, New Developments in Civil Rights Litigation and Trends in Section 1983 Actions, 576 PRACT. L. INST. LITIG. 7, 304-08 (1997). By my count, courts engaged in a merits bypass in 51 of these 79 representative cases. See id.
46. In his most recent compilation detailing recent developments in civil rights litigation, Leon Friedman lists 79 representative appellate cases where public officials were awarded qualified immunity because no direct precedent generally prohibited the conduct at issue. See Leon Friedman, New Developments in Civil Rights Litigation and Trends in Section 1983 Actions, 576 PRACT. L. INST. LITIG. 7, 304-08 (1997). By my count, courts engaged in a merits bypass in 51 of these 79 representative cases. See id.
47. See supra notes 16-17 and accompanying text.
48. See Blum, supra note 12, at 193-94; Freiman, supra note 12, at 80-83; Nahmod, supra note 11, at 259; Rudovsky, supra note 11, at 53-56; cf. McCann, supra note 19, at 140 n.147.
49. See supra note 35.
50. th Cir. 1985).
51. 500 U.S. 226 (1991).
52. See id. at 227-29.
53. See id. at 229-30.
54. See id. at 230-31.
55. See id. at 231.
56. See id. at 237 (Marshall, J., dissenting) (noting that the Court had granted certiorari to decide (1) the legality of the heightened pleading standard, and (2) whether a federal official can be qualifiedly immune from suit "without regard to whether the challenged conduct was discretionary in nature").
57. Id. at 231.
58. See id. at 231-35.
59. Id. at 231.
60. Id. at 232 (emphasis added). The Court also made three other statements that can be taken to support the no-merits-bypasses reading of Siegert: (1) "[Siegert's] allegations, even if accepted as true, did not state a claim for a violation of any rights secured to him under the United States Constitution," id. at 227; (2) "Siegert failed not only to allege a violation of the constitutional right that was clearly established at the time of Gilley's actions, but also to establish the violation of any constitutional right at all," id. at 233; and (3) "'[o]n summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred . . . . Until this threshold immunity question is resolved, discovery should not be allowed.'" id. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
61. To be sure, in mandating some threshold legal inquiry, the Court did state: Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits. One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit. Id. at 232. Mandating a particular inquiry does not, however, promote a more expeditious resolution of qualified immunity claims. See infra note 56 and accompanying text. Thus, the quoted passage does not explain the undesirability of the D.C. Circuit's approach.
62. See DiMeglio v. Haines, 45 F.3d 790, 797-98 (4th Cir. 1995).
63. See Spivey v. Elliott, 41 F.3d 1497, 1498-99 (11th Cir. 1995) (withdrawing panel opinion with a contrary reading of Siegert); Acierno v. Cloutier, 40 F.3d 597, 606 n.7 (3d Cir. 1994).
64. See, e.g., Pino v. Higgs, 75 F.3d 1461, 1467 (10th Cir. 1996); Brown v. Hot, Sexy & Safer Productions, Inc., 68 F.3d 525, 531 (1st Cir. 1995); Wilson v. Formigoni, 42 F.3d 1060, 1064-65 (7th Cir. 1994); Brown v. Nix, 33 F.3d 951, 953 (8th Cir. 1994); Calhoun v. New York State Div. of Parole Officers, 999 F.2d 647, 652 (2d Cir. 1993); Grady v. El Paso Community College, 979 F.2d 1111, 1113 (5th Cir. 1992); Silver v. Franklin Township Bd. of Zoning Appeals, 966 F.2d 1031, 1035-36 (6th Cir. 1992); Hunter v. District of Columbia, 943 F.2d 69, 76 (D.C. Cir. 1991).
65. Compare, e.g., Hot, Sexy & Safer Productions., Inc., 68 F.3d at 531 (construing Siegert as mandating inquiry into whether a constitutional claim has been stated) and Nix, 33 F.3d at 953 (same) with St. Hilaire v. City of Laconia, 71 F.3d 20, 27-28 (1st Cir. 1995) (utilizing merits bypass) and Good v. Oik-Long, 71 F.3d 314, 318 (8th Cir. 1995) (same). See also Blum, supra note 20, at 527-48 (setting forth other examples of variations within particular circuits).
66. See supra note 50.
67. Justice Kennedy made this very point in his separate opinion in Siegert: I agree with the Court that "[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." I do not, however, agree that the Court of Appeals "should not have assumed, without deciding," this issue. The Court of Appeals adopted the altogether normal procedure of deciding the case before it on the ground that appeared to offer the most direct and appropriate resolution, and one argued by the parties. If it is plain that a plaintiff's required malice allegations are insuffi-cient but there is some doubt as to the constitutional right asserted, it seems to reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitutional question first. Siegert, 500 U.S. at 235 (Kennedy, J., concurring in the judgment) (citations omitted).
68. Perhaps, after taking the case, the Siegert majority concluded that it was more important to emphasize that courts should rule on law-based qualified immunity mo-tions as soon as they are raised, see id. at 229-30 (highlighting that the district court erroneously ordered "a limited amount of discovery" rather than ruling on the qualified immunity defense at the time it was raised by motion), and to clarify that the Constitution does not protect a person's reputation, see id. at 233-34 (explaining Paul v. Davis, 424 U.S. 693 (1976)), than to pass on the issues as to which the petition for a writ of certiorari was granted, see supra note 45. Or perhaps no majority view emerged on the issues as to which certiorari was granted, but a majority view did emerge concurring in the analysis set forth in the majority opinion.
69. I recognize that several scholarly commentators have read Siegert to require threshold merits rulings on the pleaded claim. See Blum, supra note 12, at 190-94; Freiman, supra note 12, at 83-84; Martin A. Schwartz, Section 1983 in the Second Circuit, 59 BROOK. L. REV. 285, 326-27 & nn.243-47 (1993). For the reasons that follow, I disagree with these commentators' conclusions.
70. See Mitchell v. Forsyth, 472 U.S. 511, 528 (1985) (noting that appellate courts addressing interlocutory appeals of qualified immunity rulings "need not . . . determine whether the plaintiffs allegations actually state a claim. All [they] need determine is . . . whether the legal norms allegedly violated by the defendant were clearly established at the times of the challenged actions"); United States v. Leon, 468 U.S. 897, 924-25 (1984) (noting, in response to a law-freezing argument, that in "cases addressing questions of good-faith immunity under 42 U.S.C. § 1983, . . . courts have considerable discretion in conforming their decisionmaking processes to the exigencies of particular cases"); see also Procunier v. Navarette, 434 U.S. 555, 566 n.14 (1978) (bypassing the merits of certain pleaded civil rights claims on immunity grounds).
71. See supra text accompanying notes 43-44.
72. Note, though, that the "inconvenience" is almost invariably limited to the angst caused by being a named defendant in a pending lawsuit, as courts routinely decline to allow discovery until they have resolved pleadings-based motions asserting qualified immunity defenses. See Mitchell, 472 U.S. at 526 ("Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."). 62 Although I have suggested that interests other than expediency and lessening litigation burdens on governmental defendants may have motivated the Siegert majority, see supra note 57, there is little doubt that these interests were of paramount concern.
73. See supra notes 16-17 and accompanying text.
74. I use quotation marks to emphasize that the contemplated lawmaking is unnecessary only in a narrow, case-specific, and post hoc sense. See infra Parts I.C &: II.
75. See infra Part II.
76. 118 S. Ct. 1708 (1998).
77. See id. at 1720-21.
78. Id. at 1712 (quoting the district court opinion).
79. Id. at 1714 n.5 (emphasis added) (citing Siegert, 500 U.S. at 232).
80. See id. at 1723 (Stevens, J., concurring in the judgment); cf. id. at 1722-23 (Breyer, J., concurring in the majority opinion but writing separately to underscore his agreement with Justice Stevens "that Siegert . . . should not be read to deny lower courts the flexibility, in appropriate cases, to decide § 1983 claims on the basis of qualified immunity, and thereby avoid wrestling with constitutional issues that are either difficult or poorly presented").
81. See id. at 1714 n.5; cf. infra text accompanying notes 123-39 and note 125.
82. See supra text accompanying notes 55-65.
83. 472 U.S. 511, 528 (1985); see also supra note 59.
84. 468 U.S. 897, 924-25 (1984); see also supra note 59.
85. See supra note 70 and accompanying text.
86. See Siegert 500 U.S. at 235-36 (Kennedy, J., concurring in the judgment); see also supra note 56.
87. See U.S. CONST, art. III, § 2.
88. See, e.g., Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988); Benson v. Allphin, 786 F.2d 268, 279 n.26 (7th Cir. 1986); Egger v. Phillips, 710 F.2d 292, 324 n.1 (7th Cir. 1983) (Cudahy, J., concurring); cf. Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir. 1997) (en banc) (acknowledging, at the conclusion of a merits bypass, that "there is some cost in not deciding the [pleaded] Fourth Amendment issue on the merits, even in the form of dictum").
89. See Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 YALE L.J. 907, 930-33 (1962).
90. See Teague v. Lane, 489 U.S. 288, 316 (1989) (plurality opinion); Seiter, 858 F.2d at 1177.
91. Fallon & Meltzer, supra note 1, at 1799. For examples of landmark Court decisions and influential scholarly commentary sounding this theme, see, for example, Teague, 489 U.S. at 316 (plurality opinion); Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987); Mackey v. United States, 401 U.S. 667, 678-79 (1971) (Harlan, J., concurring in part and dissenting in part); Desist v. United States, 394 U.S. 244, 258-59 (1969) (Harlan, J. dissenting); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring); see also Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the Case or Controversy Requirement, 93 HARV. L. REV. 297, 303 (1979); Note, supra note 79, at 930-33.
92. See generally Fallon & Meltzer, supra note 1.
93. See id. at 1806.
94. See id. at 1799.
95. 468 U.S. 897 (1984) (holding that evidence obtained in an unconstitutional search should not be suppressed if the officer reasonably relied on a search warrant later found invalid).
96. Id. at 924.
97. 481 U.S. 497 (1987).
98. See id. at 501-04.
99. 5 U.S. (1 Cranch) 137 (1803).
100. Fallon & Meltzer, supra note 1, at 1801.
101. See id. at 1800. Of course, Fallon and Meltzer are not the only prominent commentators who argue for the primacy of the norm declaration function. See id. at 1800-01 n.377 (summarizing the literature).
102. See Id. at 1800-02.
103. Id. at 1802 (footnotes omitted).
104. Id. at 1824.
105. Cf. supra note 35.
106. While calling this conception of holdings "not wholly implausible," Professors Fallon and Meltzer reject it because, in fact, a broader conception "clearly prevails" in the federal courts. Fallon & Meltzer, supra note 1, at 1818 n.485.
107. See Michael C. Dorf, Dicta and Article III, 142 U. PA. L. REV. 1997, 2024-40 (1994); see also infra text accompanying notes 106-12.
108. Dorf, supra note 97, at 2000.
109. Id. (citing Humphrey's Executor v. United States, 295 U.S. 602, 627 (1935) (a court's "general expressions" should not control in subsequent lawsuits)). 100 Humphrey's Executor, 295 U.S. at 627.
110. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821) (Marshall, CJ.).
111. See Dorf, supra note 97, at 2000-01.
112. See, e.g., Flast v. Cohen, 392 U.S. 83, 95 (1968) (stating that the case-or-controversy requirement confines the "role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government"). 104 U.S. CONST, art. III, § 1.
113. See infra text accompanying notes 163-69.
114. Professor Dorf convincingly demonstrates that federal judges often manipulate the holding/dictum distinction in order to evade prior cases that they do not wish to overrule explicitly. See generally Dorf, supra note 97, passim (arguing for a holding/ dictum distinction which turns on whether the principle of law at issue is essential to the rationale of a case). The unsurprising result, in Dorf's view, is general confusion about where, in fact, the boundary between holding and dictum lies. See id. at 2000-05.
115. MELVIN A. EISENBERG, THE NATURE OF THE COMMON LAW 53 (1988). See also Larry Alexander, Constrained by Precedent, 63 S. CAL. L. REV. 1, 28-34 (1989); Dorf, supra note 97, at 2035-37; Henry P. Monaghan, Taking Supreme Court Opinions Seriously, 39 MD. L. REV. 1, 5-6 (1979).
116. MELVIN A. EISENBERG, THE NATURE OF THE COMMON LAW 53 (1988). See also Larry Alexander, Constrained by Precedent, 63 S. CAL. L. REV. 1, 28-34 (1989); Dorf, supra note 97, at 2035-37; Henry P. Monaghan, Taking Supreme Court Opinions Seriously, 39 MD. L. REV. 1, 5-6 (1979).
117. MELVIN A. EISENBERG, THE NATURE OF THE COMMON LAW 53 (1988). See also Larry Alexander, Constrained by Precedent, 63 S. CAL. L. REV. 1, 28-34 (1989); Dorf, supra note 97, at 2035-37; Henry P. Monaghan, Taking Supreme Court Opinions Seriously, 39 MD. L. REV. 1, 5-6 (1979).
118. I borrow this phrase from Professor Dorf. See Dorf, supra note 97, at 2037 n.144.
119. See id. at 2040.
120. Again, the phrase comes from Professor Dorf. See id. at 2049.
121. See id. at 2029-30.
122. For a scholarly exegesis of the argument I have summarized in the preceding two paragraphs, see id. at 2029-40.
123. See id. at 2037; Fallen & Meltzer, supra note 1, at 1818 n.485.
124. Cf. Dorf, supra note 97, at 2040-49.
125. See EDMUND M. MORGAN, INTRODUCTION TO THE STUDY OF LAW 109-10 (1926); Dorf, supra note 97, at 2045; Kent Greenawalt, Reflections on Holding and Dictum, 39 J. LEGAL. EDUC. 431, 435-37 (1989); see also EISENBERG, supra note 107, at 55; Fallon & Meltzer, supra note 1, at 1818 n.485.
126. See EDMUND M. MORGAN, INTRODUCTION TO THE STUDY OF LAW 109-10 (1926); Dorf, supra note 97, at 2045; Kent Greenawalt, Reflections on Holding and Dictum, 39 J. LEGAL. EDUC. 431, 435-37 (1989); see also EISENBERG, supra note 107, at 55; Fallon & Meltzer, supra note 1, at 1818 n.485.
127. 468 U.S. 897 (1984).
128. See id. at 924; see also supra notes 85-86 and accompanying text.
129. 481 U.S. 497 (1987).
130. See id. at 501-04; see also supra notes 87-88 and accompanying text.
131. See Greenawalt, supra note 115, at 435-37 (stating that a decision forming an essential ingredient in the process by which a ruling is made is considered binding so long as the court made it while considering all presented questions in their "natural order").
132. See Siegert v. Gilley, 500 U.S. 226, 227 (1991) (acknowledging that there exist sequential analytical stages to the qualified immunity inquiry).
133. Dorf, supra note 97, at 2045.
134. See supra text accompanying notes 34-37.
135. See supra text accompanying notes 21-23; cf. Owen v. City of Independence, 445 U.S. 622, 669-70 n.10 (1980) (Powell, J., dissenting) (ridiculing the majority's partial reliance on law-freezing concerns in rejecting a municipal good faith defense as "the first time that the period between 1961. . . and 1978 . . . has been described as one of static constitutional standards"); Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1178 (6th Cir. 1988) (asserting that, despite the merits bypass in civil rights damages actions, "ample room yet remains for the establishment of new principles of constitutional law" through civil rights actions for "declaratory and injunctive relief, motions to suppress, actions against municipalities not clothed with qualified immunity, and the like"); see also Fallon & Meltzer, supra note 1, at 1804-05. 125 One commentator has taken the position that the damages action is the most common means by which constitutional civil rights can become clearly established. See McCann, supra note 19, at 140 n.147. And another has correctly observed that the alternative channels for the establishment of constitutional rights mentioned in Setter, 858 F.2d at 1178, are themselves quite restricted. See Rudovsky, supra note 11, at 52-56. For example, the already much-discussed objective good faith doctrine of United States v. Leon, 468 U.S. 897, 908-13 (1984), tends to stunt the growth of Fourth Amendment law in criminal cases in much the same way as the merits bypass does in civil rights damages actions. The reviewing court can and often does avoid the constitutional challenge to the warrant by deciding that the implementing officer relied upon it in good faith. See Rudovsky, supra note 11, at 52-53. Furthermore, there are significant hurdles in the paths of litigants bringing other civil rights actions raising constitutional claims. For example, suits against municipalities require a demanding showing that a governmental "policy or custom" caused the constitutional violation. See id. at 56 (citing City of Canton v. Harris, 489 U.S. 378 (1989)). And finally, by generally restricting the availability of habeas corpus relief, see, e.g., Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion) (prohibiting generally the establishment of "new" rules of constitutional criminal procedure on collateral review), and by specifically barring habeas challenges to Fourth Amendment violations, see Stone v. Pow-ell, 428 U.S. 465, 489-95 (1976) (stating that Fourth Amendment claims ordinarily are not cognizable on collateral review), the Supreme Court has diminished the opportunity for constitutional lawrnaking on collateral review. See Rudovsky, supra note 11, at 56.
136. See supra text accompanying notes 25-30. Central to this argument is the view that the putative availability of the qualified immunity defense in lawsuits arising out of novel, constitutionally marginal circumstances is insufficient to dispel completely the wariness with which a constitutionally conscientious executive actor would approach such circumstances.
137. No. 94-35685, 1995 WL 655167 (9th Cir. Nov. 7, 1995).
138. See id. at *1.
139. See id.
140. See id.
141. See id.
142. See id. (citing Katz v. United States, 389 U.S. 347, 352 (1967)).
143. See id. (citing Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989); State v. Smith, 438 N.W.2d 571, 577 (Wis. 1989); People v. Fata, 529 N.Y.S.2d 683, 686 (Rockland County Ct. 1988); State v. Delaurier, 488 A.2d 688, 694 (R.I. 1985); State v. Howard, 679 P.2d 197, 206 (Ran. 1984)).
144. See id. (citing Tyler, 877 F.2d at 706-07 n.2; Delaurier, 488 A.2d at 694 n.4; Howard, 679 P.2d at 206).
145. See id. (citing McKamey v. Roach, 55 F.3d 1236, 1240 (6th Cir. 1995); In re Askin, 47 F.3d 100, 104-06 (4th Cir. 1995)).
146. Id. (citations omitted).
147. See supra notes 16-17 and accompanying text.
148. Nixon v. Fitzgerald, 457 U.S. 731, 744-45 (1982) (describing the rationale behind the qualified immunity defense) (citation omitted) (alteration in original).
149. For a representative sampling of other cases where courts engaged in merits bypasses and thereby failed to establish the legality vel non of executive conduct in-volving new technology or unprecedented procedures, see generally Berthiaume v. Caron, 142 F.3d 12 (1st Cir. 1998) (bypassing the merits of a claim that a state nursing board could not condition renewal of the license of a male nurse charged with importing child pornography upon the nurse's submitting to invasive "arousal" testing with a penile plethysmograph); Brown v. City of Oneonta, 106 F.3d 1125 (2d Cir. 1997) (bypassing the merits of a claim that the Family Educational Rights and Privacy Act prohibits release of student names in police investigations); Hamilton ex rel. Hamilton v. Cannon, 80 F.3d 1525 (11th Cir. 1996) (bypassing the merits of a claim involving a sheriffs interference with attempts to assist a drowning victim); Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995) (bypassing the merits of a claim involving a prison administration's failure to protect private information relating to a prisoner's HIV-positive status); Good v. Olk-Long, 71 F.3d 314 (8th Cir. 1995) (bypassing the merits of a claim that forcing inmates to work in proximity to human waste without protective gear violated the Eighth Amendment); St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995) (bypassing the merits of a claim that the police must identify themselves as such prior to seizing person from an automobile); Haney v. City of Gumming, 69 F.3d 1098 (11th Cir. 1995) (bypassing the merits of a claim involving the type of psychiatric screening required for possibly suicidal prisoners); Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1995) (bypassing the merits of a claim involving the constitutionality of a partial roadblock erected to end a police chase); Hemphill v. Kincheloe, 987 F.2d 589 (9th Cir. 1993) (bypassing the merits of a claim challenging digital rectal searches of prisoners); Andrews v. Wilkins, 934 F.2d 1267 (B.C. Cir. 1991) (bypassing the merits of a claim challenging a police officer's decision not to permit a private party to attempt a rescue); Hilliard v. City & County of Denver, 930 F.2d 1516 (10th Cir. 1991) (bypassing the merits of a claim involving the duty of police to pro-tect a passenger stranded by the impounding of an automobile).
150. See supra note 1 and accompanying text.
151. See supra text accompanying notes 25-33.
152. See Rudovsky, supra note 11, at 52-56 (summarizing the import of City of Canton v. Harris, 489 U.S. 378 (1989)).
153. Garcia by Garcia v. Miera, 817 F.2d 650, 656-57 n.8 (10th Cir. 1987) (criticizing the merits bypass).
154. An analogy might be drawn here to the Supreme Court's "capable of repetition, yet evading review" jurisprudence. See Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (holding that an issue is not moot when there is reason to expect that it will arise again between the same parties). As in Moore, the need to settle the law and, in so doing, to avoid predictable and similar future controversies, militates in favor of addressing novel constitutional claims in civil rights damages actions.
155. 103 F.3d 1056 (1st Cir. 1997).
156. See id. at 1058.
157. See id.
158. See id.
159. See id. at 1062-63.
160. See id.
161. 489 U.S. 189 (1989).
162. See id. at 197.
163. See Soto, 103 F.3d at 1064-65.
164. Garcia by Garcia v. Miera, 817 F.2d 650, 656-57 n.8 (10th Cir. 1987); see also text accompanying note 143.
165. The question refers to "Law 54," Puerto Rico's Domestic Abuse Prevention and Intervention Act, P.R. LAWS. ANN. tit. 8, §§ 631-35, 638 (Supp. 1995). Law 54 was the statute under which the police should have taken action against Rodriguez.
166. Soto, 103 F.3d at 1069-70.
167. See, e.g., Amar, Fourth Amendment First Principles, supra note 11, at 799 ("Judges do not like excluding bloody knives, so they distort doctrine, claiming that the Fourth Amendment was not really violated.").
168. People v. Defore, 242 N.Y. 13, 21 (1926) (Cardozo, J.).
169. See, e.g., Roger Parloff, How the Gun Lobby Is Rescuing the Bill of Rights, AM. LAW., November 1995, at 70 (detailing a new lobbying alliance among the American Civil Liberties Union, the National Rifle Association, and eight other organizations from across the political spectrum, formed for the purpose
170. See, e.g., Roger Parloff, How the Gun Lobby Is Rescuing the Bill of Rights, AM. LAW., November 1995, at 70 (detailing a new lobbying alliance among the American Civil Liberties Union, the National Rifle Association, and eight other organizations from across the political spectrum, formed for the purpose of "expressing concerns about alleged [civil liberties] abuses by . . . federal law enforcement"); Tom Diemer, ACLU, NRA Join Forces on the Fourth Amendment, CLEVELAND PLAIN DEALER, Oct. 25, 1995, at UA (similar); Ronald Brownstein, Unlikely Alliances Emerge in Debate Over Terrorism and Civil Liberties, L.A. TIMES, May 8, 1995, at 5 (describing agreement between the political left and right that the government ought not overreact to the Oklahoma City bombing by enacting overly-broad antiterrorism legislation).
171. See, e.g., Roger Parloff, How the Gun Lobby Is Rescuing the Bill of Rights, AM. LAW., November 1995, at 70 (detailing a new lobbying alliance among the American Civil Liberties Union, the National Rifle Association, and eight other organizations from across the political spectrum, formed for the purpose of "expressing concerns about alleged [civil liberties] abuses by . . . federal law enforcement"); Tom Diemer, ACLU, NRA Join Forces on the Fourth Amendment, CLEVELAND PLAIN DEALER, Oct. 25, 1995, at UA (similar); Ronald Brownstein, Unlikely Alliances Emerge in Debate Over Terrorism and Civil Liberties, L.A. TIMES, May 8, 1995, at 5 (describing agreement between the political left and right that the government ought not overreact to the Oklahoma City bombing by enacting overly-broad antiterrorism legislation).
172. See Amar, Fourth Amendment First Principles, supra note 11, at 757 ("The Fourth Amendment today is an embarrassment.").
173. Cf. Planned Parenthood v. Casey, 505 U.S. 833, 865-66 (1992) (opinion of O'Connor, Kennedy, and Souter, JJJ.) ("The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.").
174. Although Professor Amar did not make the specific argument set forth in this paragraph, he does extol the prospect of Fourth Amendment law developing in die civil arena, where society need not rely on the "self-serving" and sometimes "overcompensated" criminal defendant as "a kind of private attorney general" to serve "the larger public interest in restraining the government." Amar, Fourth Amendment First Principles, supra note 11, at 796-97.
175. See supra text accompanying notes 61-62.
176. See Fallon & Meltzer, supra note 1, at 1802-03 & n.387.
177. Cf. County of Sacramento v. Lewis, 118 S. Ct. 1708, 1723 (1998) (Stevens, J., concurring in the judgment) ("Sound reasons exist for encouraging the development of new constitutional doctrines in adversarial suits against municipalities, which have a substantial stake in the outcome and a risk of exposure to damages liability even when individual officers are plainly protected by qualified immunity.").
178. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 527 (1993) (Souter, J., concurring in part and concurring in the judgment) ("Sound judicial decisionmaking requires 'both a vigorous prosecution and a vigorous defense' of the issues in dispute . . . and a . . . rule announced sua sponte is entitled to less defer-ence than one addressed on full briefing and argument.") (citation omitted). Justice Souter's views on this question are not universally shared. There are critics of the adversary system who question whether truth and justice are more likely to emerge after partisan presentations by parties with opposing interests. See Dorf, supra note 97, at 2002 & n.19 (noting the disagreement and summarizing the literature); cf. Greenawalt, supra note 115, at 435 ("[N]owadays, when appellate judges have extensive research help from law clerks, what probably matters most is whether the court that decides the . . . case evidences awareness of relevant authority and arguments. Ascertaining whether points have been argued by counsel is one inquiry that bears on that question; but a written opinion may show that law clerks have rilled the gap left by counsel, and if counsel are inept, their having argued a point is not necessarily assurance that the court has had in mind all that is centrally important.").
179. See Fallon & Meltzer, supra note 1, at 1799-1803.
180. See id. at 1803-04 & n.396.
181. See id.
182. See supra note 61.
183. See supra text accompanying notes 25-30.
184. For one example, burgeoning appellate caseloads have prompted each of the federal circuit courts of appeals to develop local rules authorizing the decision of cases without an opinion. This practice has been persuasively criticized as being at odds with "[t]he received tradition . . . that litigants are entitled, as a matter of policy, to some statement of reasons for a decision on appeal." See ThOMAS E. BAKER, RATIONING JUSTICE ON APPEAL: THE PROBLEMS OF THE U.S. COURTS OF APPEALS 121-25 (West 1994).
185. Webster v. Reproductive Health Servs., 492 U.S. 490, 535 (1989) (Scalia, J., concurring in part and concurring in the judgment).
186. See generally id. at 532-35.