Intentional infliction of emotional distress tort post-Hustler-v.-Falwell

[Douglas Laycock]

How many examples do you need?
 
The end result of civil litigation in which plaintiff prevails is that defendant's is taken by coercive force of law (damages, restitution), or his liberty is restrained by injunction, mandamus, or the like, directing his behavior and backed by the coercive force of law, or he is imprisoned for failure to comply with such an injunction.  Only an actor wielding the state's monopoly of legitimate violence could inflict such consequences.  Of course the creation of common law rules directing such consequences are state action.
 
Douglas Laycock
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of J. Noble
Sent: Fri 6/9/2006 8:22 PM
To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
Subject: Re: Intentional infliction of emotional distress tort post-Hustler-v.-Falwell



Question: In finding state action in the application of the "State
rule of law," NYT glossed over the question of whether the
"discovery" of defamation among the rights and remedies of the
/common law/, and adherence to precedent thereafter, is state action.
In the context of criminal law, I've always thought of the court and
the jury as the guardians of liberty, rather than the instruments of
state action. Besides federal preemption, defamation/intentional
infliction, racial covenants, and punitive damages, are there other
examples of constitutional restraint on the application of common law
in civil litigation?

John Noble




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