Improving Rights

Nancy Leong

University of Denver Sturm College of Law

March 18, 2014

100 Virginia Law Review 377 (2014)
U Denver Legal Studies Research Paper No. 13-15

Courts and commentators regularly assume that a single avenue for rights-making is both sufficient and unproblematic. For example, it is enough if a Fourth Amendment claim may be litigated either in suppression hearings or in civil suits under 42 U.S.C. § 1983. In previous work, I presented original quantitative and qualitative evidence that challenged this assumption, arguing that litigation in a single context tends to flatten and distort constitutional rights.

In this Article, I build on this critique by introducing cognitive psychology research explaining why judicial rights-making is better undertaken simultaneously in multiple contexts. For example, on this view, Fourth Amendment rights would be better crafted both in suppression hearings and in civil suits under 42 U.S.C. § 1983. Such rights-making is preferable because it exposes judges to a broader range of governmental and private actors, factual circumstances, and social interests. In other words, multiple-context rights-making better captures the full array of considerations relevant to defining the proper contour of the right. Multiple-context rights-making would therefore result in better rights — that is, rights that more closely resemble the rights that judges would construct if they considered all the information relevant to the right itself and only that information, freed from bias, cognitive errors, and the influence of other contextual factors.

With this insight as a foundation, the Article then turns to the question of how to create the conditions necessary to improve constitutional rights-making. While previous commentators have wrongly treated rights-making conditions as inevitable, I explain that the conditions under which rights-making occurs are sensitive to factors well within governmental actors’ control, such as available remedies, incentives to litigate, and procedural hurdles. I conclude that government actors can and should take concrete and affirmative steps to improve the conditions of constitutional rights-making.

Number of Pages in PDF File: 60

Keywords: rights, remedies, Fourth Amendment, constitutional law, constitutional litigation, judges, psychology, cognition, heuristics, biases, cognitive error

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Date posted: March 12, 2013 ; Last revised: April 29, 2014

Suggested Citation

Leong, Nancy, Improving Rights (March 18, 2014). 100 Virginia Law Review 377 (2014); U Denver Legal Studies Research Paper No. 13-15. Available at SSRN: https://ssrn.com/abstract=2231531

Contact Information

Nancy Leong (Contact Author)
University of Denver Sturm College of Law ( email )
2255 E. Evans. Ave.
# 465A
Denver, CO 80208-0600
United States

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