Fourth Amendment Remedial Equilibration: A Comment on Herring v. United States and Pearson v. Callahan

30 Pages Posted: 9 Jun 2010

See all articles by David B. Owens

David B. Owens

affiliation not provided to SSRN

Date Written: June 7, 2010


In two recent decisions, the Supreme Court addressed remedies under the Fourth Amendment by assuming that this remedial construction did not alter the value of the underlying right meant to be protected by the Constitution. First, in Herring v. United States, the court broadened exceptions to the exclusionary rule and implied that suppression may not be required for "negligent" errors generally. Then, in Pearson v. Callahan, the Court abandoned it's "battle-of-order" rule - which required courts to consider the right before inquiring whether that right was "clearly established" at the time of the violation - when considering qualified immunity defenses in Section 1983 civil rights actions. Both cases, I argue, adhere to a from of "rights essentialism" that presumes rights construction and remedial enforcement decisions are separate and, thereby, do not affect each other. By contrast, I advance the "remedial equilibration" thesis that sees the value of rights through their remedies and finds rights essentialism dangerously inattentive to the consequences of constricting remedies for the underlying right. Herring and Pearson, then, take on new significance from this perspective because of what they mean for the underlying Fourth Amendment right because it is not just Fourth Amendment remedies that have been constricted by these decisions, but the value of the right itself may be altered and potentially devalued.

Keywords: Remedies, Fourth Amendment, Civil Rights, Criminal Procedure, Constitutional Law, Exclusionary Rule

JEL Classification: K40, K41

Suggested Citation

Owens, David B., Fourth Amendment Remedial Equilibration: A Comment on Herring v. United States and Pearson v. Callahan (June 7, 2010). Stanford Law Review, Vol. 62, No. 2, 2010. Available at SSRN:

David B. Owens (Contact Author)

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