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May 03, 2011


Civil Justice Law Blog

The other interesting thing to note in all of this is that in the late 19th and early 20th centuries, conservatives on the Supreme Court might have recognized the absurdity of regulating government employers - through tort liability - less than we regulate private employers through the same. At that time, it was conservatives on the Court who insisted upon limiting the regulation of employment (and everything else) to the "public" sphere, in the application of the 14th amendment right to "equal protection."

In that public/private dichotomy, post-Reconstruction judicial conservatives argued for example that equal protection should only be guaranteed in the realm of official government business. This was, of course, the judicial justification for Jim Crow and the dismantling of Reconstruction-era laws, but it tells us something about the nature of the judicial right-wing today and how it has changed that Justices Scalia et. al are unconcerned with a regime of regulation through tort liability that makes the state LESS accountable than private businesses.

Phillip Goldstein

"My friend, there are two kinds of people in the world -- thise with absolute immunity and those without it." Apologies to Sergio Leone

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