Spillover Across Remedies

By Michael Coenen. Full text here.

Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to a single remedy affect the definition of a substantive rule that governs in multiple remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which then carries binding effect in civil cases where the same statutory provision applies. In these and other settings, the cross-remedial scope of substantive rules can create doctrinal distortions, with one remedy’s influence on a substantive norm dictating the outcome of cases that would otherwise implicate different remedial considerations.

This Article documents several examples of cross-remedial spillover and considers several possible responses to it. Its central conclusion is that courts can best manage the spillover problem by varying the applicability of substantive rules across different remedial contexts. Such disaggregation strategies already exist in the law, implemented most often through the use of discrete, transsubstantive exceptions to remedial requirements (consider, for instance, the qualified immunity defense to damages liability under § 1983, or the harmless error exception to the reversal remedy on direct appeals). Nonetheless, as this Article demonstrates, courts can more effectively disaggregate substantive norms—and thus more effectively mitigate spillover across remedies—by utilizing a significantly more nuanced and substance-specific set of remedial exceptions. In effect, such an approach would yield hybridized rules of “right-remedy” law, with precedential effects extending no further than particularized combinations of substantive and remedial environments. Although that outcome might give some readers pause, it is in fact a sensible and feasible objective for courts to pursue.