The Catholic University of America

CUA Law Associate Dean Marin Scordato's article "Understanding the Absence of a Duty to Reasonably Rescue in American Tort Law", 82 Tulane Law Review 1447 (2008), has been cited by Jamal Greene in "The Supreme Court 2017 Term, Foreword: Rights as Trumps?", 132 Harvard Law Review 28 (2018).

The Supreme Court 2017 Term, Foreword: Rights as Trumps?

By: Jamal Greene
From: 132 Harv L. Rev. 28 (2018).

Rights are more than mere interests, but they are not absolute. And so two competing frames have emerged for adjudicating conflicts over rights. Under the first frame, rights are absolute but for the exceptional circumstances in which they may be limited. Constitutional adjudication within this frame is primarily an interpretive exercise fixed on identifying the substance and reach of any constitutional rights at issue. Under the second frame, rights are limited but for the exceptional circumstances in which they are absolute. Adjudication within this frame is primarily an empirical exercise fixed on testing the government’s justification for its action. In one frame, the paradigm cases of rights infringement arise as the consequences of governing poorly. In the other, the paradigm cases arise as the costs of governing well.

The first frame describes the approach of the U.S. Supreme Court over roughly the last half century. The second frame describes the approach of the rest of the developed world over the same period. Neither frame is perfect; many of their flaws track the inherent limits of judicial review in a democracy. The two frames might indeed produce similar results in particular cases. But across time and space, the choice of frame has profound consequences for constitutional law and for its subjects. In particular, the first frame, the one that dominates U.S. courts, has special pathologies that ill prepare its practitioners to referee the paradigmatic conflicts of a modern, pluralistic political order.

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Click here to view Scordato's article.


Associate Dean Martin R. Scordato's
Areas of Expertise

Tort Law

Agency Law


Legal Education

For additional information about our professors' areas of speciality, see the Catholic University Experts page.