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Aziz Huq, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L. J. __ (forthcoming 2015), available at SSRN.

It is easy to forget sometimes that our hallowed federal courts are a collection of organizations and therefore subject to the mundane limitations that organizations face.The judges who compose those organizations must determine how to wade through hundreds of thousands of cases each year—a task that has become more challenging in the past few decades, as the ratio of cases to judges has increased. Judicial administration scholarship has long sought to understand how increases in caseload affect court procedure and practice. More recently, scholars have tried to assess how caseload can impact substantive law.

Against this background, Aziz Huq makes a significant contribution with his forthcoming article, Judicial Independence and the Rationing of Constitutional Remedies.

Huq begins with a stark observation: Article III adjudication is now a scarce good. He notes that in addition to a rising caseload, federal courts must contend with the fact that settled constitutional rules are broken on a daily basis. In particular, Huq argues, the constitutional criminal procedure rules developed by the Warren Court are consistently flouted. This constitutional problem quickly has become an organizational one, as the courts lack the ability to provide relief in all cases challenging violations of these rules, given their current resource constraints. Some rationing of constitutional remedies is an “inevitable” result. The question that follows is how courts have taken up that task.

Huq first argues that the Supreme Court has established a “gatekeeping” rule of fault for individualized constitutional remedies in a range of areas. That is, constitutional litigants must show not only that the Constitution was violated, but that a clear and unambiguously applicable constitutional rule was self-evidently violated. By adopting such a rule in different contexts, the Court has necessarily raised the threshold for success in constitutional litigation, meaning that fewer parties will be able to come to federal court and win relief. Huq does a wonderful job tracing how this litigation-limiting rule applies in a range of contexts, from constitutional torts to exclusion of evidence in criminal prosecutions to habeas corpus. The result is a comprehensive account of how the fault rule has thoroughly permeated, and restricted, constitutional remediation.

Huq next explores the reasons behind the doctrinal expansion of the fault rule. He notes that scholars focusing on the rise of the rule in the past have told a standard causal story in which the ideological interests of the Justices and various historical circumstances play the primary roles. Without disputing the importance of these factors, Huq provides a fuller account by adding a new, hitherto underapperciated factor—what he calls “judicial independence.” That is, the Court has developed doctrines at least partially to further its own institutional interests, notably a desire to decrease the workload of the federal judiciary while simultaneously increasing its prestige. The rise of the fault rule thus should be seen as directly tied to the rise in pressures on the federal courts in the late 1970s and 1980s.

The article makes several important contributions. In addition to providing a comprehensive account of the reach of the fault rule, Huq convincingly suggests a causal link between these doctrinal shifts and judicial self-interest. To be sure, the article cannot definitively prove causation, and Huq is clear on this point—he states that he can only provide circumstantial evidence to support the causal claim. That said, the evidence is strong and it carries a number of implications, whichuq briefly sketches at the close of the article.

Chief among the implications is that Huq’s account may shift our understanding of separation of powers. As he writes, one central component of separation-of-powers theory is that the autonomy of the judiciary is critical for vindicating individual constitutional rights. But if one accepts that the rise of the fault-based rule for limiting the availability of constitutional relief is due, at least in part, to the judiciary exercising its own autonomy to reduce workload pressures, then surely the traditional account should be questioned. Furthermore, read more aggressively, the evidence in Huq’s account suggests that the “successful institutionalization of judicial independence” can even undermine the “project of realizing constitutional rights.”

How judges do and should ration their own attention are questions of central importance. The answers to these questions define who gets what rights recognized and who gets what remedies. There is still a great deal of work to be done in this rich and important area at the intersection of constitutional law, judicial administration, civil and criminal procedure, and remedies. Huq’s article makes substantial contributions in this area and helps to set up other important work to come.

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Cite as: Marin Levy, Rationing Constitutional Justice, JOTWELL (July 8, 2015) (reviewing Aziz Huq, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L. J. __ (forthcoming 2015), available at SSRN),