Academic

Leong on Constitutional Lawmaking by Courts & Context

By Lawrence Solum

Nancy Leong (William & Mary Law School) has posted Making Rights on SSRN. Here is the abstract:

Legal discourse acknowledges, with increasing candor, that courts create law. This is no less true of constitutional law. By interpreting the Constitution in light of particular facts, judges contribute to an ongoing process of evolution and innovation in constitutional doctrine. Moreover, we have come to see courts? articulation of law not only as descriptively accurate, but also as normatively desirable. We want judges to make law to clarify the meaning of the Constitution in response to changing social realities.

This process of constitutional lawmaking does not take place in a vacuum. Rather, a court encounters a constitutional issue in a particular context ? a word I use throughout this article to describe a given set of remedial, factual, and procedural circumstances ? and decides the issue within the parameters of that context.

This paper examines the influence of context on the contour of Fourth Amendment rights, which are articulated in both the criminal suppression hearings and in civil actions under 42 U.S.C. 1983. I present both original data and doctrinal narrative to support my claim that context matters very much to the scope of Fourth Amendment rights.

Full post as published by Legal Theory Blog on December 08, 2010 (boomark / email).