When Rights Encounter Reality: Enforcing Federal Remedies

Posted: 30 Aug 2018

See all articles by Barry Friedman

Barry Friedman

New York University School of Law

Date Written: January 1, 1992


This Article examines our commitment to the idealized notion of judicial rights definition by measuring it against the standard set out in Marbury: that the law must afford a remedy when rights have been violated. If Marbury's fundamental tenet were correct, we would expect to find a tight congruence in constitutional law between right and remedy. What emerges from a study of the law of remedy and enforcement, however, is the picture of a system in which there is tremendous flexibility in the fit between right and remedy and therefore a system in which rights receive far less respect than the rhetoric would suggest. Indeed, close examination reveals a system in which failure to comply with, if not outright defiance of, judicial remedial orders is tolerated to a certain degree. This divergence between the ideal and reality is not surprising; it reflects a similar divergence between our idealized view of the judicial function and the reality imposed by the milieu in which courts must operate. The "countermajoritarian difficulty" is born of a world in which courts are seen as insulated bodies decreeing rights without regard to popular will. But, as John Marshall knew all too well, defining rights is one thing; enforcing them is another. Thus, as this Article argues, our idealized notion of countermajoritarian courts must give way to a vision of courts as bodies different from, but nonetheless responsive to, popular will. This, the Article suggests, is where the constitutional remedial and enforcement process comes into play. Rights are often abstract; they are announced without a clear sense of how they will be received or implemented. Through the process of remediation and enforcement, however, courts take into account popular will and tolerance for the rights announced.

Suggested Citation

Friedman, Barry, When Rights Encounter Reality: Enforcing Federal Remedies (January 1, 1992). Southern California Law Review, Vol. 65, 1992. Available at SSRN: https://ssrn.com/abstract=2821956

Barry Friedman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

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