Duties of Care and the Constitution: A Negligence Model of Individual Rights

Abstract

"Arcane" might well be the adjective most frequently used to describe to law students bodies of law that touch on constitutional interpretation. Individual rights jurisprudence is certainly no exception. In fact, grappling with theories about overarching themes, ideologies, and agendas is perhaps a more daunting challenge to the student of individual rights law than is learning the black letter law itself. Academics often think of this body of law as quite malleable and responsive to the normative views of Justices on the Supreme Court, and theories couched in terms of political agendas and ideological biases are frequently offered to explain the direction in which individual rights jurisprudence is moving. None of these explanations, however, contemplates the type of interdisciplinary approach that a negligence model of individual rights law would suggest, and few offer rational explanations for the seemingly incoherent divergences one finds in this area of law. This Note seeks to do both.