Right-Remedy Equilibration and the Asymmetric Entrenchment of Legal Entitlements
44 Pages Posted: 5 Apr 2019 Last revised: 29 May 2019
Date Written: March 13, 2019
Public-law litigation often gives rise to a basic but important asymmetry: Claimants wishing to obtain a particular form of redress for a particular legal wrong must satisfy all the relevant procedural, substantive, and remedial prerequisites to the issuance of judicial relief. In contrast, governments wishing to avoid the issuance of that remedy need only demonstrate that a single such requirement operates in its favor. This Article considers the extent to which this asymmetry influences the development of the law. Specifically, the Article hypothesizes — albeit subject to important qualifications — that, where the remediation of a right depends on a claimant’s satisfaction of multiple, mutually necessary procedural, substantive, and remedial rules, judicial decisions that frustrate the vindication of that right (and thus move the law in an “entitlement-weakening” direction) should be easier to achieve and maintain than judicial decisions that promote the vindication of that right (and thus move the law in an “entitlement-strengthening” direction). “Entitlement-strengthening” initiatives, after all, can very often be undone by a single, counteractive change to any one of the several rules on which a claimant’s vindication of the right depends. “Entitlement-weakening” initiatives, by contrast, will often be immune to such a simple counterattack. Consequently, a sort of “asymmetric entrenchment of entitlements” is hardwired into the basic architecture of public-law doctrine, rendering entitlement-strengthening decisions consistently more vulnerable to down-the-road retrenchment than their entitlement-weakening counterparts.
Suggested Citation: Suggested Citation