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Abstract:
Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heaviliy influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was comparatively easy for lawyers to convince judges that juries in tort cases should be allowed to punish defendants for egregious misconduct.

Punitive damages, common vs. civil law, comparative legal history

Abstract:
Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where it ruled that a police officer acts reasonably when he rams a suspect's car in order to end a high speed chase. But the Court did not explain why it preferred judge over jury, nor even identify the judge-jury choice as an important issue in the case. This article argues that, whatever the merit of the substantive holding in Scott, the Court was right to favor judge over jury on the reasonableness-of-force issue. The key difference between constitutional torts and common law torts is that the defendant in a section 1983 suit can win even if he has violated the plaintiff's constitutional rights. This is so because the defendant enjoys official immunity from liability for damages so long as those rights were not 'clearly established' at the time he acted. Juries cannot lay down rules. As a result, a regime in which juries decide Fourth Amendment reasonableness on a case by case basis will necessarily thwart plaintiffs' efforts to recover damages. The aims of section 1983 - to deter constitutional violations and vindicate constitutional rights - would be better served by a body of law that consists of bright-line rules, which can only be made by judges.

constitutional torts, reasonableness of force, section 1983

Abstract:
Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis on which some (but not all) litigants claiming arbitrary treatment by officials may seek relief. Persons whose relations with the state — whether as employee, holder of a business license, land developer, or otherwise — give rise to 'state-created' property interests may sue under the Due Process Clause when officials deprive them of those interests without due process of law. The right to procedural safeguards for such interests is well-established. We argue that they are entitled also to substantive protection. Yet, the case law on substantive due process for state-created property is sketchy, fragmented, and contradictory, in part, because the Supreme Court has provided little guidance. We develop an argument for substantive due process rights in this context, identify and meet objections to our thesis, and show how the right would operate in practice. Finally, we consider the impact of Engquist, an Equal Protection case, on our Due Process theory of recovery.

due process, equal protection, government employees

Abstract:
The traditional focus of the course on Federal Courts has been the study of highly abstract principles of separation of powers and federalism. This paper argues that most students are better served by a course that focuses on what lawyers need to know in order to litigate issues regarding the types of disputes federal courts may address and the division of authority between federal and state courts. With that aim in mind, the paper suggests that the course should focus largely on the opportunities and obstacles faced by lawyers seeking to advance federal constitutional or statutory claims in the federal courts and in the state courts, with particular emphasis on section 1983 litigation.

legal education, federal courts