The thesis of this Article is that both the Supreme Court and its critics have failed to identify and confront the central issue presented by these due process constitutional tort cases. That issue is neither procedural fairness nor the choice between state and federal courts. It is deciding whether a government-inflicted injury to life, liberty, or property violates the substantive protections of the due process clauses and thereby warrants a constitutionally derived tort remedy. In Part II of this Article we examine the Supreme Court's decisions in this area, focusing primarily on Parratt v. Taylor. We demonstrate that neither Parratt nor its predecessors provide meaningful guidelines to define the boundary between constitutional and ordinary tort. In Part III we argue that the correct approach to the problem is to treat it as a variant of substantive due process doctrine. Applying that analysis, we propose in Part IV four principles for deciding particular cases. The actor's motive, the degree of care exercised, the relation between the amount of force used and legitimate government objectives, and the degree of government control over the plaintiff should be the determining factors in whether a given claim warrants treatment as a constitutional tort.
Michael L. Wells and Thomas A. Eaton,
Substantive Due Process and the Scope of Constitutional Torts
Available at: http://digitalcommons.law.uga.edu/fac_artchop/18