- Brandon L. Garrett & Kaitlin Phillips, AEDPA Repeal, 107 Cornell L. Rev. 1739 (2022).
- Alexander Reinert, Joanna C. Schwartz & James E. Pfander, New Federalism and Civil Rights Enforcement, 116 Nw. U. L. Rev. 737 (2021).
For every right, there is a remedy. This venerable principle is found both in ancient languages (“ubi jus, ibi remedium”) and on pages of our own judicial canon so foundational that they call to us from a bygone typographical era (“it is a general and indifputable rule, that where there is a legal right, there is alfo a legal remedy by fuit or action at law, whenever that right is invaded.”). When federal constitutional rights are violated, however, the path to a meaningful remedy is often impassible. Criminal defendants whose state court convictions were tainted by constitutional violations must navigate myriad obstacles to federal habeas relief, particularly those that Congress imposed in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). For those who suffer constitutional violations in other contexts and seek relief in federal court under § 1983, qualified immunity, the Eleventh Amendment, limits on municipal liability, and various procedural restrictions can block relief regardless of their claims’ substantive merit.
Two excellent articles offer ways to fix the current state of affairs. Brandon Garrett and Kaitlin Phillips propose changes to AEDPA and other doctrines governing habeas corpus petitions in federal court. Alex Reinert, Joanna Schwartz, and Jim Pfander examine how state and local laws can improve the enforcement of federal civil rights. In both pieces, the authors deploy their deep scholarly expertise to provide concrete, practical, thoughtful, well-crafted proposals that deserve careful attention from academics, advocates, lawmakers, and anyone else interested in these important issues.
In AEDPA Repeal, Garrett and Phillips begin with the story of Shirley Ree Smith, whose unsuccessful federal habeas challenge—which went all the way to the Supreme Court—exemplifies how AEPDA can thwart federal court scrutiny of whether state criminal proceedings comport with constitutional requirements. They note, however, that AEDPA is not the sole culprit. Effective habeas review is also undermined by restrictive judicially created doctrines that had taken shape even before AEDPA’s troubling statutory provisions were enacted.
After summarizing the many significant restrictions facing habeas petitioners, Garrett and Phillips get down to business—proposing detailed revisions of federal habeas statutes that would address several ways that current doctrines weaken the ability of federal courts to provide relief via habeas corpus. First up is AEDPA’s “relitigation bar” (§ 2254(d)(1)), which prevents de novo review of a petitioner’s federal claims. Although their primary recommendation is simply to delete the provision, they propose alternative revisions as well.
Next, the authors take on the non-retroactivity doctrine stemming from the Supreme Court’s decision in Teague v. Lane. Among other things, they propose language that would preserve habeas review of mixed questions of law and fact by clarifying that a habeas claim would be impermissibly retroactive only when it relies on a “pure question of law” that was announced after the state court’s decision and that had not been made retroactive by the Supreme Court. Finally, they propose modifications to § 2244(b)’s provisions on second or successive habeas petitions, § 2244(d)’s one-year statute of limitations, and the provisions in § 2254 governing exhaustion and evidentiary hearings.
New Federalism addresses a different set of roadblocks to the enforcement of federal civil rights, and the authors’ proposals target a different audience. Writing in the wake of numerous highly publicized police killings, Reinert, Schwartz, and Pfander look to state and local mechanisms and institutions. They identify some positive recent developments on this front—including a new state-law cause of action in Colorado—but they note significant resistance as well. As a descriptive matter, the authors provide an exceptionally helpful account of the existing state and local landscape—not only state systems for vindicating wrongs by governmental officials, but also the budgeting, indemnification, and litigation practices of state and local entities that can impact the enforcement of constitutional rights.
Reinert, Schwartz, and Pfander articulate several concrete solutions. First, they urge state governments to enact analogues to § 1983 that do not include the problematic doctrines that exist at the federal level. Their model statute creates a right to sue for violations of both state and the federal constitutions, and provides that officers would not enjoy qualified immunity from monetary damages claims. They also propose expanded vicarious liability and full indemnification of individual officers by the deeper-pocketed governmental entities that employ them, ensuring that plaintiffs will be paid when they win.
In addition to enhancing the availability and enforceability of judicial remedies, the authors suggest a range of beneficial policy practices. These include internal sanctions for individual officers and departments when violations occur; public disclosure of settlements and judgments; requiring the development of corrective action plans; and policies encouraging governments to take the full public interest into account (not simply narrow, win-at-all-costs litigation goals) when defending against constitutional claims.
In both pieces, the level of care and precision with which the authors develop their proposals is commendable. Each article contains a detailed appendix with specific statutory language for lawmakers to put forward. The authors respond conscientiously to potential objections, and they situate their proposals within the broader normative goals and theoretical models that inform their respective areas of focus.
It remains to be seen, of course, the extent to which relevant entities—whether at the federal, state, or municipal level—will be willing to adopt any of these solutions. But it is a welcome contribution to have such well-regarded scholars put pen to paper and offer blueprints for progress should the political wherewithal materialize. Let’s hope that it does.
