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Rethinking The Boundaries Between Public Law And Private Law For The Twenty First Century: An Introduction, Michel Rosenfeld Jan 2013

Rethinking The Boundaries Between Public Law And Private Law For The Twenty First Century: An Introduction, Michel Rosenfeld

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The distinction between public law and private law has been both ever present and unwieldy in civil law as well as in common law jurisdictions. Kelsen found the distinction “useless” for “a general systematization of law,” and Paul Verkuil has remarked that “[i]f the law is a jealous mistress, the public-private distinction is like a dysfunctional spouse. . . . It has been around forever, but it continues to fail as an organizing principle.”


Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan Jan 2013

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

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In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …


Finding The Proper Measure For Conditions Of Pretrial Confinement, Alexander A. Reinert Jan 2013

Finding The Proper Measure For Conditions Of Pretrial Confinement, Alexander A. Reinert

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Comment in response to Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L. Rev. 1009 (2013).