In the four decades since Monroe v. Pape, the Supreme Court has crafted a vast body of law on money damages for violations of constitutional rights. This essay argues that Monroe was wrong. The error lay not in the result, which was admirable, but in the attribution of that result to a Reconstruction-era statute applicable indifferently to all rights. Treating the availability of damages as a transsubstantive exercise in statutory interpretation obscures important differences among rights and suppresses clear thinking about remedies. A better strategy would abandon "one-size-fits-all" and adapt remedies to specific kinds of constitutional violations. The availability of money damages would then depend on an assessment of their role in enforcing particular rights - and especially on the availability of alternative remedies that make damages more or less needful.
The per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time...
During times of crisis, governments often consider policies that may promote safety, but that would require overstepping constitutionally protected...
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
History and precedent tell us that the just compensation requirement has been implemented by a complex network of remedies providing multiple avenues...
It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime...
The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left...
After a term in which the conservative Roberts court swept aside the Chevron doctrine, a decision that will clip federal agencies’ authority to enact...
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In Cantero v. Bank of America, the US Supreme Court declined to decide whether Bank of America Corp. must pay interest on New York mortgage borrowers’...
The Supreme Court has overruled Chevron v. Natural Resources Defense Council, finally interring a doctrine of statutory interpretation that it had...
On June 27, 2024, the U.S. Supreme Court dismissed a case brought by the federal government regarding whether Idaho’s abortion ban conflicts with a...
Celebrating Charles Ogletree, Jr. comes naturally to so many people because he served not only as a tireless champion of equality and justice, but...
In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the...
Does the U.S. Constitution protect the affirmative right to vote? Those focusing on the Constitution’s text say no. Yet, the Supreme Court has treated...
The glaring gap in tort theory is its failure to take adequate account of liability insurance. Much of tort theory fails to recognize the active and...
On Thursday afternoon, in an important lawsuit seeking to clarify which religious objectors will be taken seriously when they seek legal exemptions, a...
We apply a dynamic influence model to the opinions of the U.S. federal courts to examine the role of the U.S. Supreme Court in influencing the...
In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a...