When you sue the government for violating your rights do you first need the government’s permission? Unfortunately, the answer is usually “yes.” We look at a pair of recent cases that go in different directions on the issue, and this leads us to some pretty “deep thoughts” about where law comes from and what roles courts and legislatures have in finding remedies to address constitutional violations. The words “common law” come up much more than is generally common for the podcast. First Anya Bidwell explains how the Tenth Circuit denied a prisoner a chance to sue a prison guard based on a recent Supreme Court decision that effectively closed the door on new remedies when federal officials violate the Constitution. Then, in contrast, Ben Field details a case from the Michigan Supreme Court where the majority recognized a remedy for violations of the state constitution. In addition, the dissent says some interesting things about legal history that we explore. It’s often repeated that if there is a right there is a remedy too. We try to find out how true that actually is.
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