InnerChange Litigation

[Douglas Laycock]

    David Waddilove's point that most constitutional violations are
torts when perpetrated in the private sector is well taken.  But
probably there are exceptions around the margins.

  Think about defendants who were exercising some kind of private
authority.  If the state tells me I can't verbally condemn the
President, that's usually a Speech Clause violation.  If a private
employer tells his employees the same thing on pain of discharge,
that may be obnoxious, but I'm guessing that in most states it's not
a tort.

  Think about things that don't happen often enough to give rise to a
body of law.  It's crime to bribe a judge, but is it a tort against
the disadvantaged litigant?  I can't think what the tort is, although
I would be happy to argue a case trying to make it a tort. 
Destruction of evidence (often called spoliation) is not a tort in
most states, but if the government destroys exculpatory evidence in a
criminal case, that's a constitutional violation.

  There are probably other examples.  But I agree that the
Establishment Clause is unique in the way state action turns
constitutionally protected conduct into constitutionally prohibited
conduct.

  Quoting David Waddilove <waddi at umich.edu>:

> But aren't prison guards who beat prisoners liable in their
individual capacities under ordinary tort law for battery?  In
general, aren't
cases of dual liability for the state and the individual tortfeasor
always
cases where a cause of action would exist against the individual
irrespective of state action?
>
> The trouble with the Establishment Clause is that there can be no
liability unless the action is done by the state.  . . . .

  > Can anyone else think of another cause of action against a state
actor that by definition has no corresponding cause against a private
one? 
Have I missed something?
>
> David P. Waddilove
> Adjunct Professor,
> University of Arkansas William H. Bowen School of Law
> PO Box 2060
> Little Rock, AR 72203
> (501) 324-6891
>
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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