Double Reasonableness and the Fourth Amendment
Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework. One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.
The Saucier Qualified Immunity Experiment: An Empirical Analysis
This paper provides an empirical analysis of the impact of the approach to qualified immunity that the Supreme Court first suggested in Siegert v. Gilley and later made mandatory in Saucier v. Katz. That approach dictates that lower courts should resolve constitutional issues prior to deciding whether a government official is shielded from liability by qualified immunity. A primary justification for this sequencing approach is the notion that where courts decide that constitutional law is not clearly established, and thus qualified immunity is available, future defendants can also escape liability for the same behavior. But the empirical analysis provided in this paper indicates that courts forced to resolve constitutional questions that, prior to Siegert and Saucier, they would have avoided, almost uniformly hold that no constitutional violation has occurred. To the extent that Siegert and Saucier have led to an increase in the articulation of constitutional law, therefore, this increase has solely benefited defendant government officers.Advances in cognitive psychology suggest an explanation for courts' reluctance to hold that a constitutional violation has occurred yet then grant qualified immunity. Where the law is not clearly established, and thus a defendant will escape liability in any case, it may create cognitive dissonance to hold that a plaintiff's constitutional rights were violated. In anticipation of the Supreme Court's revisitation of the sequencing approach in Pearson v. Callahan, this paper suggests that sequencing should not be mandatory so that judges will not be forced to decide constitutional questions against this backdrop of dissonance.
Seminole Tribe, the Eleventh Amendment, and the Potential Evisceration of Ex Parte Young
In its 1996 decision, Seminole Tribe v. Florida, the Supreme Court, reversing itself, held that Congress lacks Article I power to abrogate states' Eleventh Amendment immunity from suit in federal court. In exploring the decision's ramifications, Professor Jackson contends that it may foreshadow more pervasive, and more troubling, shifts in the balance of power between state and federal governments, and among the federal, judicial, legislative and executive branches. In particular, the Court's reasoning in Seminole Tribe may have serious repercussions on the federal courts' ability to enjoin state officials from violating federal law in the future. The availability of such equitable relief, under the so-called Ex parte Young doctrine, has long been accepted as a necessary counterbalance to the states' Eleventh Amendment immunity from federal jurisdiction. While the new restrictions on Congress's power would seem to make the availability of such relief more important than before, Professor Jackson examines how the Court's unfortunate analysis in Seminole Tribe may presage a substantial limitation of the Ex parte Young doctrine in the federal courts. Professor Jackson concludes by articulating the dangers that such a course might pose to federal courts' role in maintaining the rule of law and the supremacy of federal law.