Law Commons^™

Remedial Discretion In Constitutional Adjudication, John M. Greabe

John M Greabe

Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional.

The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing …

A Federal Baseline For The Right To Vote, John M. Greabe

John M Greabe

A number of states have laws that define domicile for purposes of voting in terms that would disenfranchise those state residents who do not plan to remain in the state permanently, or even indefinitely. This essay argues that such laws are preempted by the federal constitutional concept of state citizenship, which is informed by the traditional definition of domicile set forth in the Restatement (Second) of Conflict of Laws. Under that definition, all United States citizens with a physical presence in a state and an intention to make the state their home for the time at least are citizens of …

Constitutional Remedies & Public Interest Balancing, John M. Greabe

John M Greabe

The conventional account of our remedial tradition recognizes that courts may engage in discretionary public interest balancing to withhold the specific remedies typically administered in equity. But it generally does not acknowledge that courts possess the same power with respect to the substitutionary remedies usually provided at law. The conventional account has things backwards when it comes to constitutional remedies. The modern Supreme Court frequently requires the withholding of substi- tutionary constitutional relief under doctrines developed to protect the perceived public interest. Yet it has treated specific relief to remedy ongoing or imminent invasions of rights as routine, at least …

Objecting At The Altar: Why The Herring Good Faith Principle And The Harlow Qualified Immunity Doctrine Should Not Be Married, John M. Greabe

John M Greabe

Response to: Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011)

Critics of the curtailment of the exclusionary rule worked by Herring v. United States have denounced the decision as Supreme Court activism posing as derivation from settled law. Professor Jennifer Laurin agrees that Herring breaks with exclusionary rule doctrine but disputes that it lacks any grounding in Court precedent. She says that Herring consummates a long courtship between the Leon good faith exception to the exclusionary rule and the Harlow standard for qualified immunity. Laurin premises her argument on an …

Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe

John M Greabe

The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified-immunity defense. Yet framing the issue in this way ignores the Court’s earlier decision in Gomez v. Toledo and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicability in the complaint. These cases thus raise a number of questions: Does the Court really mean what its issue-framing statements suggest? If so, should we …

A Better Path For Constitutional Tort Law, John M. Greabe

John M Greabe

ABSTRACT

A BETTER PATH FOR CONSTITUTIONAL TORT LAW

The Supreme Court has repeatedly said that 42 U.S.C. section 1983 is not substantive. But at the same time, the Court has avoided difficult immunity problems by construing the statute to permit claims against individuals in their individual capacities -- i.e., as jural entities entirely separate and distinct from the government. The Court has thus created a contradiction. For if we are to take seriously the proposition that ordinarily only the government can violate the Constitution, the reality of individual-capacity claims does not square with characterizing section 1983 as non-substantive. The substantive …

Mirabile Dictum! The Case For "Unnecessary" Constitutional Rulings In Civil Rights Damages Actions, John M. Greabe

John M Greabe

This article contends that, for purposes of settling the law, courts entertaining civil rights lawsuits doomed to fail on grounds of qualified immunity should presumably address the question whether the complaint pleads a viable claim that the defendant caused a violation of the plaintiff's federal rights. The article also contends that such "unnecessary" threshold rulings are not dicta.