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.
Aziz Z. Huq, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L.J. 1 (2015).
Available at: http://scholarship.law.duke.edu/dlj/vol65/iss1/1