Remedial Convergence and Collapse

56 Pages Posted: 6 Apr 2018  

Leah Litman

University of California, Irvine School of Law

Date Written: April 6, 2018

Abstract

This Article describes and interrogates a phenomena of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability of writs of habeas corpus to challenge criminal convictions, damages against government officials, the exclusion of evidence in criminal trials, and causes of action to sue federal officials for damages. The convergence results in considerable tension in the doctrine and notable effects in practice. For example, courts frequently deny one remedy on the ground that another remedy is available and preferable to the remedy that a party has sought. But when the same standard governs the availability of remedies that are supposed to substitute for one another, courts eliminate all remedies when they deny one of them. The remedial doctrines discussed in this article primarily address executive violations of constitutional rights, particularly violations that occur in the course of policing. Denying the availability of remedies in cases that involve policing and executive power replicates the racialized effects of policing in the federal courts and forsakes oversight and accountability in an area where it might be particularly needed.

Suggested Citation

Litman, Leah, Remedial Convergence and Collapse (April 6, 2018). California Law Review, Vol. 106, 2018 Forthcoming; UC Irvine School of Law Research Paper No. 2018-26. Available at SSRN: https://ssrn.com/abstract=3157777

Leah Litman (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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