Judicial Independence and the Rationing of Constitutional Remedies

65 Pages Posted: 25 Mar 2015 Last revised: 28 Mar 2015

See all articles by Aziz Z. Huq

Aziz Z. Huq

University of Chicago - Law School

Date Written: March 24, 2015


This Article analyzes the doctrinal instruments federal courts use to allocate scarce adjudicative resources over competing demands for constitutional remedies. It advances two claims. The first is that a central, hitherto underappreciated, doctrinal instrument for rationing judicial resources is a demand that most constitutional claimants demonstrate that an official violated an exceptionally clear, unambiguous constitutional rule — that is, not only that the Constitution was violated, but that the violation evinced a demanding species of fault. This fault rule first emerged in constitutional tort jurisprudence. It has diffused to the suppression and postconviction review contexts. The Article’s second claim is that fault-based rationing of constitutional remedies flows, to an underappreciated degree, from a commitment to judicial independence. Federal courts have developed branch-level autonomy, along with distinctly institutional interests, over the twentieth century. These interests are inconsistent with the vindication of many individualized constitutional claims. While ideological preferences and changing socioeconomic conditions have had well-recognized influences on the path of constitutional remedies, I argue that the judiciary’s institutional preferences have also played a large role. This causal link between judicial independence and remedial rationing raises questions about federal courts’ function in the Separation of Powers.

Keywords: Judicial Independence; constitutional remedies; separation of powers

Suggested Citation

Huq, Aziz Z., Judicial Independence and the Rationing of Constitutional Remedies (March 24, 2015). Duke Law Journal, Vol. 65, No. 1, 2015, U of Chicago, Public Law Working Paper No. 524, Available at SSRN: https://ssrn.com/abstract=2584488 or http://dx.doi.org/10.2139/ssrn.2584488

Aziz Z. Huq (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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