This article examines the operation of the lower federal courts as constitutional laboratories where problems related to implementing the Supreme Court's problematic constitutional decisions are routinely addressed. By using the methodology of a detailed case study of Eighth Amendment litigation the author provides critical insights into the workings of the federal trial courts and three judge appellate panels and insights into the applied phenomenology of ajudicative discretion, the moving force of this judicial laboratory. The article also examines the problematic nature of the Supreme Court's constitutional decisions, their textual openness, doctrinal malleability,and prudential "errors," and how this effects the institutional conduct of state actors outside the judicial arena, and ultimately courts and litigants. Finally, the article provides a unique empirical analysis illuminating the process of constitutional lawmaking in the daily workings of the courts and the normative impact of the Supreme Court's constitutional decisions. In its conclusion the article reveals the danger in restricting access to the courts for prisoner litigants by highlighting the institutional incentives to reject proactive constitutional compliance as the modal institutional response to the Supreme Court's lawmaking and adhere, instead, to a purely liability avoidance model. By weaving together theoretical and practice based insights the article points out the need for a legitimate adjudicative vocabulary of judicial discretion as the only way to ensure transparency and accountability in the implementation of federal constitutional law.
Maureen N Armour. "Federal Courts as Constitutional Laboratories: The Rat's Point of View" ExpressO
Available at: http://works.bepress.com/maureen_armour/1/