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Improving Rights

by Nancy Leong
100 Va. L. Rev. 377 (2014)
Article

Courts and commentators regularly assume that a single avenue for rights-making is both sufficient and unproblematic. For example, it is enough if a Fourth Amendment claim may be litigated either in suppression hearings or in civil suits under 42 U.S.C. § 1983. In previous work, I presented original quantitative and qualitative evidence that challenged this assumption, arguing that litigation in a single context tends to flatten and distort constitutional rights.

In this Article, I build on this critique by introducing cognitive psychology research suggesting that judicial rights-making is better undertaken simultaneously in multiple contexts. For example, on this view, Fourth Amendment rights would be better crafted both in suppression hearings and in civil suits under 42 U.S.C. § 1983. Such rights-making is preferable because it exposes judges to a broader range of governmental and private actors, factual circumstances, and social interests. In other words, multiple-context rights-making better captures the full array of considerations relevant to defining the proper contour of the right. Multiple-context rights-making would therefore result in better rights—that is, rights that more closely resemble the rights that judges would construct if they considered all the information relevant to the right itself and only that information, freed from bias, cognitive errors, and the influence of other contextual factors.

With this insight as a foundation, the Article then turns to the question of how to create the conditions necessary to improve constitutional rights-making. While previous commentators have wrongly treated rights-making conditions as inevitable, I explain that the conditions under which rights-making occurs are sensitive to factors well within governmental actors’ control, such as available remedies, incentives to litigate, and procedural hurdles. I conclude that government actors can and should take concrete and affirmative steps to improve the conditions of constitutional rights-making.

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