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Affirmative Duties, Systemic Harms, And The Due Process Clause, Barbara E. Armacost

Michigan Law Review

Part I of the article lays out the major academic criticisms of DeShaney v. Winnebago County Department of Social Services. Part II describes the contours of liability for failure to protect in tort. Part III offers a positive explanation for the strong presumption against governmental liability in failure-to-protect cases: permitting broad liability for failure to protect would involve the courts in second-guessing political decisions about the use of limited community resources. This explanation has two parts. First, as a matter of institutional competence, budgetary decisions about the appropriate level and distribution of public services are better suited to political rather …