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United States Supreme Court

1997

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Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman Jan 1997

Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman

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It has been surprisingly difficult to extricate constitutional litigation from torts. In this Article I would like to resist once more' the idea that tort doctrines and tort categories provide a useful model for constitutional decision-making. When it comes to deciding the merits of a constitutional claim, torts is a distraction. That is the case whether torts serves as a positive model for the constitutional cause of action or as an alternative to be shunned. As part of this argument, I also question the claim2 that Monroe v. Pape,3 the 1961 case that opened the door for damages relief ...