Columbia Law Review Sidebar, Vol. 109, 2009
9 Pages Posted: 18 Jul 2009 Last revised: 7 Apr 2010
Criminal procedure rights are most commonly thought of as adduced and enforced in the context of criminal proceedings, in the course of which defendants litigate criminal procedure guarantees and thereby both obtain individual relief and, the story goes, generate systemic incentives for the conduct of law enforcement. This regulatory process also occurs, however, though civil litigation of criminal procedure rights, most commonly through the federal civil rights statute 42 U.S.C. s. 1983. This recursive dynamic is eschewed, however, by what this short essay identifies as a recent trend of "remedial rationing" in the Supreme Court's criminal procedure jurisprudence: the cabining of criminal procedure litigation in either the criminal or civil realms. The Supreme Court's recent Confrontation Clause decision in the criminal case Melendez-Diaz v. Massachusetts, and a recent civil rights verdict in the case Rodriguez v. City of Houston - both cases that concern constitutional limitations on the conduct of law enforcement with respect to forensic science practices - provide an opportunity to reflect on the limits of both criminal and civil litigation as mechanisms for generating law enforcement incentives, and to consider the possible coordinate and synergistic advantages of the availability of both remedial regimes. Such a dynamic suggests that the Court's “remedial rationing” approach is misguided.
Keywords: Melendez-Diaz, civil rights, criminal procedure
Suggested Citation: Suggested Citation
Laurin, Jennifer E., Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing. Columbia Law Review Sidebar, Vol. 109, 2009; U of Texas Law, Public Law Research Paper No. 155. Available at SSRN: https://ssrn.com/abstract=1435484