Saturday, May 21, 2011
There are three general litigation forums for persons aggrieved by constitutional violations - exclusionary rule litigation in a criminal case, habeas corpus challenges to the legality of one’s confinement, and civil litigation seeking damages or equitable relief. Over the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in each of these three fields, and the scope of such limitations has begun to compound exponentially in recent years. The stagnating impact on the development of Fourth Amendment law as a result of the increasingly emaciated constitutional-remedial regime is cause for concern and the subject of this Article.
Commentary criticizing recent curtailments of constitutional remedies has focused primarily on the way that limited remedial access might result in the under-enforcement of the Fourth Amendment and a corresponding under deterrence, or skewing of police incentives. This Article, in contrast, addresses the potential for under-announcement of Fourth Amendment law based on a skewing of judicial incentives. Procedural limitations on the development of the Fourth Amendment threaten to create a substantive three-way stop, a virtual freezing of search and seizure doctrine. The threat of a procedurally induced constitutional stagnation is particularly notable in view of the fact that the modern hallmark of Fourth Amendment law is the Katzian imperative of doctrinal evolution and the need for an ever evolving set of legal protections.