Two Rights Don't Make a Remedy

Criminal Law Expert Orin S. Kerr and Columbia Law School Professor and Judge Debra A. Livingston Discuss Developments in Fourth Amendment Law

New York, April 3, 2013—The U.S. Supreme Court continues to be protective of the Fourth Amendment right against unlawful search and seizure, The George Washington University Law School Professor Orin S. Kerr told Columbia Law School students and guests recently.

But when it comes to providing remedies to defendants whose rights have been violated, the justices are much more reluctant to act.
Professor Debra A. Livingston
“People always ask me, ‘How’s the Fourth Amendment doing?’” Kerr said at a March 25 presentation with Columbia Law School Professor Debra A. Livingston, a judge on the U.S. Circuit Court of Appeals for the 2nd Circuit. “And my answer is, ‘it depends on whether you care about the right or the remedy.’”
To illustrate his point, Kerr noted the 2012 U.S. v. Jones case in which the high court ruled that it was illegal for the police to attach a GPS device to a defendant’s car to monitor his movements. But to find a case offering relief to a defendant, Kerr said he had to go back nine years to Groh v. Ramirez, when the court allowed an agent of the Bureau of Alcohol, Tobacco and Firearms to be sued by a defendant who claimed her Fourth Amendment rights had been violated.
Taken together, the trends may have a major impact on litigation and case law going forward, said Kerr, a nationally recognized scholar in the fields of criminal procedure and computer crime law. Defendants may be less likely to challenge their convictions if they have no hope of winning.
“What’s the incentive for a criminal defendant to argue for changes in constitutional doctrine if they can’t benefit from doing so?” he asked.
Likewise, judges may be less inclined to allow lawsuits to proceed since they generally do not rule on cases in which there is no controversy or available remedy. But Kerr said it appears judges will continue to take cases despite the lack of available relief so that they can clarify the law.
“What the court is contemplating is Fourth Amendment litigation without stakes,” Kerr said. “The Supreme Court may be hearing cases that really amount to purely advisory opinions.”
In her response to Kerr’s remarks, Livingston asked what role lower courts play in this development. Kerr answered that because the U.S. Supreme court takes up so few cases each year, the lower courts have “the lion’s share” of litigation on the issue, and their decisions have been mixed.
“These cases are heading to a court of appeals near you,” he joked.
The event, “The Future of the Fourth Amendment—Broad Rights But No Remedies?” was sponsored by the Columbia Law School Federalist Society and organized by Grant May ’15.