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Leah Litman, Remedial Convergence and Collapse, 106 Cal. L. Rev.1477 (2018).

Leah Litman’s Remedial Convergence and Collapse highlights a common two-step phenomenon in the law of constitutional torts. First, the Supreme Court increases the standard for obtaining one remedy (“Remedy A”), relying in part on the availability of another remedy (“Remedy B”). The Court then increases the standard for obtaining Remedy B, relying in part on the availability of Remedy A. The result is that neither remedy is available. Across a range of remedial domains, the Court has imposed similar, high standards for relief, often citing the availability of other remedies that do not exist as a practical matter. Litman calls the similarity of the remedial standards “convergence.” The ultimate unavailability of any remedy? “Collapse.”

To illustrate her point, Litman focuses primarily on three mechanisms of constitutional enforcement that are of particular importance to policing and criminal justice: (1) qualified immunity; (2) federal habeas; and (3) the exclusionary rule. As Litman puts it, “[t]he standards for qualified immunity, habeas corpus, and exclusion of evidence have … converged around a similar, overarching principle that purports to select for unreasonably egregious actions.” (P. 1480.)

For example, for a damages suit to advance against a governmental defendant in an individual capacity, a plaintiff must demonstrate that the official’s actions violated clearly established law that a reasonable official would have known at the time of the violation. This is a high bar; qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Likewise, when a criminal defendant seeks to exclude illegally obtained evidence, “the same standard of objective reasonableness that [applies] in the context of a suppression hearing … defines the qualified immunity accorded an officer.” And Congress requires that if a state court has adjudicated a petitioner’s federal claim, that ruling must remain intact in the face of a habeas petition unless “the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” This standard has been interpreted to mean that state court’s decision is not “objectively unreasonable” “so long as ‘fair-minded jurists could disagree’ on the correctness of the … decision.”

The standards for these various remedies also converge in the level of generality with which courts are required to read prior cases. Across all three contexts, the Court has warned against defining the rules established by prior cases at a high level of generality. In the habeas context, litigants may not rely on new rules established after their conviction became final, absent rarely applicable exceptions; in determining whether a Supreme Court decision creates a new rule or instead applies an old rule, lower courts have been admonished not to define the old rule at a high level of generality. The Court has issued similar warnings in qualified immunity cases.

Convergence is surprising because these doctrines implicate different causes of action and defenses that arise from different sources of law. Section 1983 features broad language, purportedly applying to “[e]very person” whose federal rights have been violated by state officials, saying nothing about qualified immunity. By contrast, in the Antiterrorism and Effective Death Penalty Act, Congress expressly limited the reach of federal habeas to protect federalism and finality. And the exclusionary rule is a judicially-crafted doctrine that arises in criminal prosecutions. Still, as Litman demonstrates, similar, stringent standards govern these disparate contexts.

Despite the similar governing standards, the Court often cites the availability of one remedy as it denies another. When restricting the scope of the exclusionary rule, the Court has pointed to the availability of suits under Section 1983. Restrictive habeas cases rely on the availability of the exclusionary rule, even when exclusion likely would not have been available.1 Qualified immunity cases have relied on the availability of remedies in criminal cases, even when this is not so. Litman explains that the “convergence in the different remedial standards thus undermines the Court’s reassurances that another remedy will substitute for the remedy the Court has denied, because convergence means that all remedies will effectively be displaced when the court denies one remedy.” (P. 1510.)

This is an important observation. While the rights-remedies gap has long been an important topic in scholarship about constitutional torts, less attention has been paid to the common mechanisms that sustain and widen that gap. A generation ago, Daniel Meltzer suggested that “there is reason to doubt that ‘the central problems for constitutional law . . . are issues of the definition of rights rather than the creation of a machinery of jurisdiction and remedies that can transform rights proclaimed on paper into practical protections.’” As Chief Justice Marshall once admonished, it is odd for a court to engage in the work of “prescribing limits,” but then “declar[e] that those limits may be passed as pleasure.”

Litman’s work helps focus on that machinery of jurisdiction and remedies, and how that machinery is not living up to its transformative promise.

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  1. Davis v. United States, 564 U.S. 229 (2011).
Cite as: Fred O. Smith, Jr., How Remedies Disappear, JOTWELL (July 31, 2019) (reviewing Leah Litman, Remedial Convergence and Collapse, 106 Cal. L. Rev.1477 (2018)),