Enforcing Rights

Abstract

Courts frequently confine constitutional litigation to a single remedial avenue. For example, courts typically allow enforcement of Fourth Amendment rights by providing either exclusion of evidence or a civil remedy under 42 U.S.C. § 1983, but not both. Yet this practice is at odds with judicial treatment of remedies in other arenas. Courts rarely limit common law litigants to a single remedy, for instance. Is there a reason that constitutional litigants should be treated differently from others?

This Article answers that question in the negative. It begins by exposing the pervasive yet underexamined phenomenon of courts limiting constitutional litigants to a single remedial avenue. It then demonstrates that this judicial practice of limiting remedial avenues in constitutional settings lacks justification. That is, the doctrinal and policy reasons that courts typically advance for foreclosing multiple remedial avenues in the constitutional context cannot withstand careful scrutiny, particularly given that multiple remedial avenues are entirely normal for common law claims. The Article subsequently builds on previous work by demonstrating that limiting plaintiffs to single remedial avenues has negative consequences for constitutional rights-making. After explaining why this is so, the Article proposes a number of doctrinal and practical innovations to better enforce constitutional rights via multiple remedial avenues.

Keywords: rights, remedies, constitutional rights, constitutional law, Fourth Amendment, criminal procedure, civil rights, common law