Making rights

Boston University Law Review

Volumn 92, Issue 2, 2012, Pages 405-481

  Leong, Nancy ^a  

^a UNIVERSITY OF DENVER   (United States)

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EID: 84860162913     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (80)

1. Here and elsewhere, when I refer to "making" rights, I am not advocating any particular theory of constitutional interpretation or any particular judicial role. My terminology is intended as simply a descriptive account of judges' work. Judges decide issues presented by litigants. In turm, their decisions yield doctrinal pronouncements that build precedent. This ongoing process of construction is what I call making rights. Used in this way, the terminology is not novel. See, e.g., Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 883 (2006) (citing Oliver Wendell Holmes and accepting his hypothesis that when common law judges decide individual cases that put forward general principles, they in effect make new law).
2. See Nancy Leong, Making Remedies (unpublished manuscript) (on file with author).
3. See, e.g., Joseph William Singer, Legal Realism Now, 76 CALIF. L. REV. 465, 467 (1988) ("All major current schools of thought are, in significant ways, products of legal realism.").
4. See, e.g., RICHARD A. POSNER, OVERCOMING LAW 235 (1995) ("Everyone professionally involved with law knows that, as Holmes put it, judges legislate 'interstitially,' which is to say they make law, only more cautiously, more slowly, and in more principled, less partisan, fashion than legislators.").
5. Owen Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV.L. REV. 1,30(1979).
6. Henry P. Monaghan, Third Party Standing, 84 COLUM. L. REV. 277, 279-80 (1984) (claiming that the function of courts transcends dispute resolution).
7. Some would term this judicial work product "dicta." See Michael C. Dorf, Dicta and Article III, 142 U. PA. L. REV. 1997, 2005-09 (1994). For my purposes, 1 believe it unnecessary to parse the holding-dictum distinction. Regardless of whether particular statements within opinions are categorized as "holding" or "dictum," they undoubtedly guide future courts. See, e.g., SEC v. Rocklage, 470 F.3d 1, 7 n.3 (1st Cir. 2006) ("Even dicta in Supreme Court opinions [are] looked on with great deference."). By issuing such statements, then, courts are "making" law in any functional sense of the word. (Pubitemid 24819582)
8. See, e.g., John M.M. Greabe, Mirabile Dictum! The Case for "Unnecessary" Constitutional Rulings in Civil Rights Damages Actions, 74 NOTRE DAME L. REV. 403, 407 (1999) (explaining that rulings on novel constitutional questions serve "important noticegiving" functions);
9. Sam Kamin, An Article III Defense of Merits-First Decisionmaking in Civil Rights Litigation: The Continued Viability of Saucier v. Katz, 16 GEO. MASON L. REV. 53, 63-64 (2008) (advocating merits-first decision making in qualified immunity adjudication).
10. Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. REV. 847, 936 (2005).
11. See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP. L. REV. 667, 676-84 (2009) (outlining rationales for and criticisms of qualified immunity doctrine).
12. Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. REV. 1249, 1277-79(2006).
13. Justices Breyer, Ginsburg, and Scalia repeatedly criticized mandatory sequencing on the ground that it would require courts to decide difficult constitutional questions unnecessarily. See Leong, supra note 19, at 679 n.66 (collecting examples from opinions in post-Saucier Supreme Court cases).
14. Various commentators have protested Pearson, arguing that Saucier's sequencing mandate is preferable because without such a mandate, constitutional law will fail to develop. Such commentary reflects and reinforces the prevailing view that courts' articulations of law and rights are important. See, e.g., Jack M. Beerman, Qualified Immunity and Constitutional Avoidance, 2009 SUP. CT. REV. 139, 149;
15. John C. Jeffries, Jr., Reversing the Order of Battle in Constitutional Torts, 2009 SUP. CT. REV. 115, 117;
16. Pamela S. Karlan, Shoe-Horning, Shell Games, and Enforcing Constitutional Rights in the Twenty-First Century, 78 UMKC L. REV. 875, 887-88 (2010);
17. Justin F. Marceau, The Fourth Amendment at a Three-Way Stop, 62 ALA. L. REV. 687, 730 (2011).
18. Lockhart v. Fretwell, 506 U.S. 364, 369 n.2 (1993) ("Harmless-error analysis is triggered only after the reviewing court discovers that an error has been committed."). Courts have not, however, always read this statement as a mandate. See Sam Kamin, Harmless Error and the Rights/Remedies Split, 88 VA. L. REV. 1, 53-55 (2002).
19. Orin Kerr, Good Faith. New Law, and the Scope of the Exclusionary Rule, 99 GEO. L.J. 1077, 1118 (2011) (arguing that the good-faith exception should not apply to reliance on overturned case law because the suppression remedy creates incentives for defendants to challenge existing legal precedents and for courts to reexamine them).
20. See Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1, 43-50 (2004);
21. Jennifer E. Laurin, Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure, 110 COLUM. L. REV. 1002, 1007-08 (2010).
22. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1213 (1978).
23. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274, 1276 (2006) (positing a gap between values that the Constitution reflects and values as implemented due to the need for "judicially manageable standards");
24. Fiss, supra note 11, at 52-53 (positing a gap between constitutional rights and their associated remedies and arguing that judges' work is to translate the former into the latter); Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585, 587 (1983) (describing remedies as realizations of constitutional norms);
25. Henry P. Monaghan, The Supreme Court, 1974 Term - Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 3 (1975) (describing rules that "draw[] their inspiration and authority from, but [are] not required by, various constitutional provisions");
26. Kermit Roosevelt III, Constitutional Calcification: How the Law Becomes What the Court Does, 91 VA. L. REV. 1649, 1655-57 (2005) (discussing the decision rules model); Sager, supra note 40, at 1213-19 (arguing that constitutional norms are generally under-enforced as a result of concerns about federalism and judicial competence but that the full conceptual scope of a constitutional norm remains binding on government actors).
27. Commentators also assign David Strauss to the pragmatist school of thought. His work examines what he calls "prophylactic rules" - "rule[s] that imposef] additional requirements beyond those of the Constitution itself - and emphasizes that courts do not distinguish between what the Constitution requires and what the rule they have announced requires when they decide cases. David Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 195 (1988). From an institutional perspective on the judiciary, therefore, prophylactic rules are equally legitimate expressions of constitutional law. See id. at 208-09; see also Berman, supra note 35, at 18 n.53, 43-50 (contrasting decision rules and pragmatist positions and identifying latter with Strauss, Levinson, and others).
28. Daryl Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 858 (1999).
29. Without identifying themselves explicitly as pragmatists, many other scholars have alluded to the influence of remedies on rights. See, e.g., Ann Althouse, Saying What Rights Are - In and Out of Context, 1991 Wis. L. REV. 929, 945-46 (explaining that whether a decision applies retrospectively determines whether courts must immediately confront the administrative burdens their decisions created and may therefore influence the scope of the right they articulate).
30. Kermit Roosevelt III, Aspiration and Underenforcement, 119 HARV. L. REV. F. 193, 194 (2006).
31. See, e.g., Andrew Hessick, The Impact of Government Appellate Strategies on the Development of Criminal Law, 93 MARQ. L. REV. 477, 482 n.26, 486 nn.53-54, 489 (2009) (examining how strategic selection of cases for appeal by the government influences the development of Fourth, Fifth, and Sixth Amendment rights).
32. Jennifer E. Laurin, Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing, 109 COLUM. L. REV. SIDEBAR 82, 83 (2009). While I agree with Laurin's identification of this phenomenon, I have somewhat less confidence that commitment to one remedial regime or another always arises with the intentionality that the term "rationing" seems to connote. Although the availability of alternative remedies sometimes drives decision making about what remedies are available - as in Hudson - in other instances my intuition is that single-context litigation arises more or less unintentionally as the byproduct of other judicial machinations.
33. There are a few exceptions, although they have focused on particular doctrinal areas rather than on single-context litigation as a transsubstantive phenomenon. See generally Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Conviction Law, 2005 Wis. L. REV. 35 (contrasting the influence of remedy in litigation of civil damages actions and wrongful prosecution claims);
34. Pamela S. Karlan, Race, Rights, and Remedies in Criminal Adjudication, 96 MICH. L. REV. 2001 (1998) (examining the relationship between rights and remedies under the Fourth Amendment and Equal Protection Clause in criminal adjudication).
35. See, e.g., Albert W. Alschuler, Herring v. United States; A Minnow or a Shark?, 1 OHIO ST. J. CRIM. L. 463, 510 (2009);
36. James J. Tomkovicz, Hudson v. Michigan and the Future of Fourth Amendment Exclusion, 93 IOWAL. REV. 1819, 1848 (2008).
37. John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 97 (1999).
38. John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 YALE L.J. 259, 283 (2000). Although Jeffries raises and credits criticisms of the remedial structure of the Fourth Amendment, he nonetheless states that it is a "different question whether the exclusionary rule provides adequate opportunities for the definition of Fourth Amendment rights," and he answers that question in the affirmative. Jeffries, supra note 32, at 134. He goes so far as to argue that the exclusionary rule works better for purposes of law articulation than it does for other aspects of maintaining the criminal procedure regime: "For rights definition - the process of articulating, specifying, and clarifying what conduct is allowed - the limitations on exclusion are far less costly." Id.
39. The full database for the data used in this Article is an excel spreadsheet, which is on file with the Boston University Law Review and is available at bu.edu/law/lawreview (under Volume 92, Number 2 (March 2012)).
40. The literature is replete with generalizations about the location of Fourth Amendment litigation. See, e.g., Laurin, supra note 64, at 85 (claiming, based on three anecdotal examples, that "[w]here criminal and civil litigation both afford mechanisms for enforcing criminal procedure rights, the Court is likely to channel enforcement into one regime or the other"); William J. Stuntz, The Virtues and Vices of the Exclusionary Rule, 20 HARV. J.L. & PUB. POL'Y 443, 450 (1997) ("[F]or purposes of defining Fourth Amendment law, exclusionary rule litigation is Fourth Amendment litigation."). My data allow objective evaluation of these generalizations.
41. See also RONALD JAY ALLEN ET AL., COMPREHENSIVE CRIMINAL PROCEDURE 336 (2d ed. 2005) (estimating the number of suppression motions at about 175,000 annually, with the number of civil lawsuits against police numbering only a few thousand and criminal prosecutions against police officers a few dozen).
42. Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 799 (1994).
43. See, e.g., Samuel Estreicher & Daniel P. Weick, Opting for a Legislative Alternative to the Fourth Amendment Exclusionary Rule, 78 UMKC L. REV. 949, 951 (2010) ("The prospect of suppression is thought to be so problematic that it acts as a negative hydraulic causing judges to distort substantive Fourth Amendment law in order to avoid this consequence.");
44. John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisted, 95 CALIF. L. REV. 1387, 1407 (2007) ("Difficulties arise in borderline cases, where the mere fact that the constable blundered seems an inadequate reason to set the criminal free. One suspects that many courts in many places strain to avoid that result.");
45. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. III. L. REV. 363, 403 ("[R]emoving the threat of exclusion should make judges who hear Fourth Amendment claims more willing to discredit factual assertions made by the police.");
46. George C. Thomas III & Barry S. Pollack, Saving Rights from a Remedy: A Societal View of the Fourth Amendment, 73 B.U. L. REV. 147, 149 (1993) (arguing that exclusionary remedy "encourages judges to warp Fourth Amendment doctrine and engage in creative factfinding").
47. See Alan K. Chen, Rosy Pictures and Renegade Officials: The Slow Death o/Monroe v. Pape, 78 UMKC L. REV. 889,910-11 (2010); Karlan, supra note 32, at 886-87.
48. see also Alan K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 AM. U. L. REV. 1, 80(1997).
49. Sheldon Nahmod, The Restructuring of Narrative and Empathy in Section 1983 Cases, 72 CHI.-KENT L. REV. 819, 821 (1997).
50. See Nancy Leong, Rethinking the Order of Battle in Constitutional Torts: A Reply to John Jeffries, 105 Nw. U. L. REV. 969 (2011).
51. Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 COLUM. L. REV. 670, 688 (2011).
52. see also Amos Tversky & Daniel Kahneman, Belief in the Law of Small Numbers, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 23, 24-25 (Daniel Kahneman et al. eds., 1982).
53. See, e.g., THOMAS GILOVICH, DALE GRIFFIN & DANIEL KAHNEMAN, HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 2-15 (2002);
54. Amos Tverskey & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCI. 1124, 1130 (1974).
55. U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, FEDERAL JUSTICE STATISTICS, 2008 - STATISTICAL TABLES 18 tbl.4.2 (2010), available at http://www.bjs.gov/content/pub/html/fjsst/2008/fjs08st.pdf.
56. William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881, 915-18(1991).
57. see also John Q. Barrett, Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court's Conference, 72 ST. JOHN'S L. REV. 749, 767-769 (1998) (describing Terry's background and the circumstances surrounding its decision).
58. See, e.g., Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 393-94 (1974) (describing the vagueness of the Terry standard).
59. See, e.g., Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM. L. REV. 551, 585-88 (1997).
60. See, e.g., Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214, 225-36 (1983);
61. Randall S. Susskind, Race, Reasonable Articulable Suspicion, and Seizure, 31 AM. CRIM. L. REV. 327, 334-38 (1994); (Pubitemid 24776498)
62. Lisa Walter, Eradicating Racial Stereotyping from Terry Stops: The Case for an Equal Protection Exclusionary Rule, 71 U. COLO. L. REV. 255, 258-66 (2000).
63. William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1066 (1995). Stuntz's close analysis of Terry has influenced my own. But although Stuntz traces the analysis in Terry primarily to the Fourth Amendment doctrine's emphasis on privacy - rather than on other considerations, such as coercion - my own conclusion is somewhat different. In my view, the fact that the Terry issue was decided in a criminal proceeding, with the exclusionary rule as a remedy, is the explanation for the shape of the Court's analysis.
64. Tasers: Unecssary and Deadly Force, AMNESTY INT'L USA (Mar. 25, 2009, 9:42 AM), http://blog.amnestyusa.org/us/tasers-unnecessary-and-deadly-force/ (explaining that from June 2001 to March 2009 more than 334 people died after being shocked by tasers).
65. See Rachel Harmon, When Is Police Violence Justified?, 102 Nw. U. L. REV. 1119, 1143 (2008);
66. John C. Jeffries, Jr., What's Wrong with Qualified Immunity?', 62 FLA. L. REV. 851, 860-61(2010).
67. Gregory Howard Williams, Controlling the Use of Non-Deadly Force: Policy and Practice, 10 HARV. BLACKLETTER J. 79, 89-90 (1993).
68. WAYNE R. LAFAVE ET AL., 2 CRIMINAL PROCEDURE § 3.5(a), at 210-12 (3d ed. 2007).
69. Diana Hassel, Excessive Reasonableness, 43 IND. L. REV. 117, 118 (2009); see also Jeffries, supra note 160, at 861 (explaining that - practically speaking - the general reasonableness test of excessive force doctrine "would seem to encompass all relevant concerns, including reasonable mistakes that an officer might make").
70. See Lawrence Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. PA. J. CONST. L. 797, 812-13 nn.51-52 (2007) (collecting indemnification statutes).
71. See Joshua M. D. Segal, Note, Rebalancing Fairness and Efficiency: The Offensive Use of Collateral Estoppel in § 1983 Actions, 89 B.U. L. REV. 1305 app. A at 1337 (2009).
72. See Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 MICH. L. REV. 459, 511-21(2010).
73. see also Pamela S. Karlan, The Paradoxical Structure of Constitutional Litigation, 75 FORDHAM L. REV. 1913, 1916 (2007) ("We have a far better code of conduct governing the conditions for police searches than for police uses of force."); Stuntz, supra note 148, at 1068 ("A focus on privacy has led to a great deal of law -sometimes fairly protective, sometimes not - about what police officers can see. The doctrine pays a good deal less attention to what police officers can do. This is part of the cost of a Fourth and Fifth Amendment culture that has worried too much about privacy and too little about everything else.").
74. Amar, supra note 100. Force is also nowhere discussed in the article's sequel. Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 ST. JOHN'S L. REV. 1097 (1998).
75. See generally David A. Sklansky, The Fourth Amendment and Common Law, 100 COLUM. L. REV. 1739 (2000);
76. Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466 (1996).
77. Nancy Leong, Civilizing Batson, 97 IOWA L. REV. (forthcoming 2012), available at http://papers.ssm.com/sol3/papers.cfm?abstract-id=1956115.
78. See Eric L. Muller, Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, 106 YALE L.J. 93, 95-96 (1996).
79. See The Supreme Court, 2009 Term - Leading Cases, 124 HARV. L. REV. 179, 199 (2010).
80. See, e.g., STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 66-74 (2005);