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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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