Running in Place: The Paradox of Expanding Rights and Restricted Remedies

In the spring 2004 David C. Baum Memorial Lecture, David Rudovsky argued that although constitutional and statutory rights have generally been expanding since the historic Brown v. Board of Education, federal remedies have not kept pace. Contrary to views expressed by Chief Justice John Marshall, there now exists a paradox of legal rights without remedy. Although major remedial decisions of the Warren Court, such as Mapp v. Ohio and Monroe v. Pape, have not been expressly overruled, the Supreme Court has in later decisions significantly limited their impact. The Court has increasingly turned to prospective rulings, but while these provide some guidelines to future actors, they deprive the harmed individual recompense for the violations of her rights. Extensions of the doctrine of qualified immunity and the Eleventh Amendment’s sovereign immunity, as well as congressional legislation limiting litigation by prisoners and access to habeas corpus, have created a system where only egregious violations of rights may be subject to remedial judicial action.

The full text of this Lecture is available to download as a PDF.