Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Under Due Process

One of the legacies of Brown v Board of Education is its endorsement of affirmative remedial action to enforce constitutional rights. Disputes over the parameters of this active remedial power and compliance with the ordered remedies have dominated the ensuing decades of post-Brown desegregation cases. These enforcement disputes have overshadowed the importance of Brown's establishment of a remedial norm embracing affirmative judicial action to provide meaningful relief. This article seeks to salvage that remedial norm by grounding it in the Due Process Clause of the Fourteenth Amendment. Stated simply: Ubi jus, ibi remedium. Where there's a right, there must be a remedy. Arguing that the right to a remedy is a fundamental right, this article suggests that a strict scrutiny calculus must be used to justify the denial of a remedy.