Academic journal article Duke Law Journal

Judicial Independence and the Rationing of Constitutional Remedies

Academic journal article Duke Law Journal

Judicial Independence and the Rationing of Constitutional Remedies

Article excerpt


This Article analyzes the doctrinal instruments federal courts use to allocate scarce adjudicative resources over competing demands for constitutional remedies. It advances two claims. First, a central, hitherto underappreciated, doctrinal instrument for rationing judicial resources is a demand that most constitutional claimants demonstrate that an official violated an exceptionally clear, unambiguous constitutional rule--that is, not only that the Constitution was violated, but that the violation evinced a demanding species of fault. This fault rule first emerged in constitutional tort jurisprudence. It has diffused to the suppression and postconviction review contexts. The Article's second claim is that fault-based rationing of constitutional remedies flows, to an underappreciated degree, from an institutional commitment to judicial independence. Federal courts have developed branch-level autonomy, along with distinctly institutional interests, over the twentieth century. These interests are inconsistent with the vindication of many individualized constitutional claims. Although ideological preferences and changing socioeconomic conditions have had well-recognized influences on the path of constitutional remedies, I argue that the judiciary's institutional preferences have also played a large role. This causal link between judicial independence and remedial rationing raises questions about federal courts' function in the Separation of Powers.

Table of Contents

I.   Fault and the Rationing of Constitutional Remedies
     A. The Remedial Dispensation for Individualized
        Constitutional Wrongs
     B. Fault in Constitutional Tort Law
        1. Fault as the Operative Principle of Qualified
        2. Fault's Spillovers from Constitutional Tort Doctrine
     C. Fault and the Exclusionary Rule
     D. Fault in Postconviction Habeas Jurisprudence
III. The Causal Link Between Remedial Rationing and Judicial
     A. Fault as a Judicial or a Congressional Rule
        1. Fault as a Legislative Imposition?
        2. Fault as an Outcome of Litigant Incentives?
     B. Judicial Ideology as a Cause of Remedial Rationing
        1. Qualified Immunity
        2. Postconviction Review
        3. The Exclusionary Rule
     C. Circumstantial Evidence of the Institutional Roots of
        the Fault Rule
        1. The Judiciary's Institutional Interest in Caseload
        2. Caseload Management in the Era of Fault
      D. Institutional Interests and the Boundaries of the Fault
        1. Exceptions to the Fault Rule
        2. Judicial Interests as a Determinant of the Contours of
III. Implications of the Fault Rule for Constitutional Remedies
      A. Distributive Implications
      B. Implications for the Separation of Powers


Article III adjudication is a scarce good. (1) This is not just a function of rising caseloads, statutory as well as constitutional, outstripping federal courts' capacity. (2) It also flows inexorably from the fact that settled constitutional rules are daily broken. Between the 1950s and the 1970s, the Supreme Court fashioned a thick network of constitutional rules to bind police officers, prison officials, prosecutors, state trial court judges, and frontline bureaucrats. (3) These rules are often observed now only in the breach. Even in the well-structured, closely supervised context of state criminal courts, there is ample evidence that constitutional rights are systemically flouted. (4) Some municipal justice systems may stay solvent by illegally depriving citizens of basic liberties. (5) On our nation's streets, constitutional violations are routinized in some urban neighborhoods. (6) We simply have no reliable way to know how often zoning officials, welfare bureaucrats, or prison guards act on unconstitutional grounds or discard mandatory procedures. …

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