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Full-Text Articles in Torts
Affirmative Duty And Constitutional Tort, Michael Wells, Thomas A. Eaton
Affirmative Duty And Constitutional Tort, Michael Wells, Thomas A. Eaton
University of Michigan Journal of Law Reform
This Article argues that the Bowers principle is wrong. It examines the issues of doctrine and policy that bear on the affirmative duty question in constitutional tort and contends that affirmative duties may be imposed even though constitutional rights are generally negative in character, as a matter of federal constitutional common law. It ·develops a foundation in doctrine and policy, so far lacking in the opinions, to support these duties and to place proper limits upon them.
Part I identifies issues of tort policy that arise in affirmative duty cases, while Part II addresses the distinctive problems that come up …
Affirmative Duty And Constitutional Tort, Michael L. Wells, Thomas A. Eaton
Affirmative Duty And Constitutional Tort, Michael L. Wells, Thomas A. Eaton
Scholarly Works
The Constitution ordinarily places only negative restrictions on government and does not require affirmative acts to assist individuals. The statutory vehicle for most constitutional tort litigation, 42 U.S.C. section 1983, echoes this constitutional principle. It extends liability to "[e]very person who ... [under color of state law] subjects, or causes to be subjected, any ... person" to the deprivation of federal rights, and makes no provision for a duty on governmental defendants to stop others from harming the plaintiff.
For some courts this principle disposes of affirmative duty claims forthwith. A noteworthy example is the recent seventh circuit case Bowers …