78 Pages Posted: 5 Dec 2010 Last revised: 10 Sep 2012
Date Written: December 3, 2010
By adjudicating cases, courts make constitutional rights. This Article considers the conditions under which this constitutional rights-making should take place. Ideally, constitutional rights-making should occur simultaneously in multiple remedial, factual, and procedural contexts; in reality, however, rights are undesirably confined to a single context. This situation has negative consequences for the endeavor of constitutional rights-making.
As a case study in rights-making, the Article offers a comprehensive quantitative and qualitative analysis of the Fourth Amendment. It presents an original data set cataloging every instance of Fourth Amendment rights-making between 2005 and 2009. That data set shows that most areas of Fourth Amendment doctrine are litigated either in suppression hearings or in civil actions for money damages - rarely both - even though in theory both remedies are available for each violation. The Article then describes the way this phenomenon distorts rights by developing a comprehensive, precedent-based account of three areas of Fourth Amendment doctrine: investigatory stops, excessive force, and unlawful detention.
This original analysis lays the groundwork for a broader conclusion: rights made solely in a single context are distorted by the idiosyncrasies of that context. Any context emphasizes certain interests and circumstances at the expense of others, and when rights are made only in a single context, those interests and circumstances deform the right over time. By contrast, rights made in multiple contexts are richer, more balanced, and more comprehensive. The Article shows that this phenomenon is not limited to the Fourth Amendment by surveying several rights where the existence of single or multiple litigation contexts affects the substance of the right.
The Article then argues that we should not treat context as inevitable: if too much or too little rights-making is occurring in a particular context, judges and legislators can and should change the rate of rights-making by increasing the availability of remedies in the desired context and eliminating other barriers to litigation. A substantial scholarly literature documents the effect of remedial availability on the rate of litigation in a particular context, but none of it has yet suggested that we should adjust remedies if we think it would benefit the rights-making endeavor to do so. This Article therefore begins the project of envisioning how we might adjust remedies intentionally to produce better rights-making.
Keywords: Fourth Amendment, constitution, constitutional rights, rights, terry stop, investigatory stop, excessive force, unlawful detention, arrest, remedies
Suggested Citation: Suggested Citation
Leong, Nancy, Making Rights (December 3, 2010). 91 Boston University Law Review 405 (2012); U Denver Legal Studies Research Paper No. 11-21. Available at SSRN: https://ssrn.com/abstract=1719774