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2 Fed. Cts. L. Rev. 87 (2007)
Saying What the Law Is: How Certain Legal Doctrines Impede the Development of Constitutional Law and What Courts Can Do about It

handle is hein.journals/fecourtl2 and id is 95 raw text is: THE FEDERAL COURTS LAW REVIEW
Volume 2                                                     2007
Saying What the Law Is: How Certain Legal
Doctrines Impede the Development of
Constitutional Law and What Courts
Can Do About It
Lynn Adelman & Jon Deitrich*
I.     GOOD  FAITH ................................................  88
II.    A E D PA   .................................................  90
III.   QUALIFIED  IMMUNITY .......................................  94
IV.    PRESERVING COURTS' LAW DEVELOPMENT FUNCTION...          96
Since the days of John Marshall, it has been the province and
duty of the judicial department to say what the law is.' Particularly in
the area of constitutional law, the federal courts have long claimed the
authority-independent of the other branches of the federal govern-
ment and of the state judiciary-to enforce the Constitution's require-
ments. Further, in interpreting the Constitution, courts have
historically sought to define individual rights as clearly as possible so as
to place government officials on notice that they ignore such. . . rights
at their peril.'2
In recent years, however, the Supreme Court and Congress have
promulgated a number of rules that have made it harder for courts to
develop constitutional law or even to say what the law is. Further,
lower federal courts have done less than they might to overcome the
problem. The doctrines in question include the good faith exception to
the exclusionary rule; the habeas corpus standard of review contained
in the Antiterrorism and Effective Death Penalty Act (AEDPA); and,
* Lynn Adelman is a United States District Judge for the Eastern District of Wisconsin.
Jon Deitrich is Judge Adelman's law clerk. They wish to thank United States Magistrate
Judge Margaret J. Kravchuk for her skillful style editing of this article.
1. Marbury v. Madison, 5 U.S. 137, 177 (1803).
2. See, e.g., Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 112 (2d Cir. 1999)
(Calabresi, J., concurring).

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