Copyright (c) 2009 All rights reserved. http://works.bepress.com/michael_wells Recent documents in Michael L. Wells en-us Sun, 31 May 2009 09:28:42 PDT 3600 http://works.bepress.com/michael_wells/28 http://works.bepress.com/michael_wells/28 Tue, 17 Mar 2009 05:53:46 PDT Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was "unreasonable." In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where it ruled that a police officer acts reasonably when he rams a suspect's car in order to end a high speed chase. But the Court did not explain why it preferred judge over jury, nor even identify the judge-jury choice as an important issue in the case. This article argues that, whatever the merit of the substantive holding in Scott, the Court was right to favor judge over jury on the reasonableness-of-force issue. The key difference between constitutional torts and common law torts is that the defendant in a section 1983 suit can win even if he has violated the plaintiff's constitutional rights. This is so because the defendant enjoys official immunity from liability for damages so long as those rights were not "clearly established" at the time he acted. Juries cannot lay down rules. As a result, a regime in which juries decide Fourth Amendment reasonableness on a case by case basis will necessarily thwart plaintiffs' efforts to recover damages. The aims of section 1983--to deter constitutional violations and vindicate constitutional rights--would be better served by a body of law that consists of bright-line rules, which can only be made by judges. Michael L. Wells Civil Rights Constitutional Law Torts http://works.bepress.com/michael_wells/27 http://works.bepress.com/michael_wells/27 Fri, 27 Feb 2009 11:29:59 PST Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a "class-of-one" Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Enguist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis on which some (but not all) litigants claiming arbitrary treatment by officials may seek relief. Persons whose relations with the state -- whether as employee, holder of a business license, land developer, or otherwise -- give rise to "state-created" property interests may sue under the Due Process Clause when officials deprive them of those interests without due process of law. The right to procedural safeguards for such interests is well-established. We argue that they are entitled also to substantive protection. Yet, the case law on substantive due process for state-created property is sketchy, fragmented, and contradictory, in part, because the Supreme Court has provided little guidance. We develop an argument for substantive due process rights in this context, identify and meet objections to our thesis, and show how the right would operate in practice. Finally, we consider the impact of Engquist, an Equal Protection case, on our Due Process theory of recovery. Michael L. Wells Civil Rights Constitutional Law http://works.bepress.com/michael_wells/26 http://works.bepress.com/michael_wells/26 Thu, 04 Sep 2008 05:25:09 PDT Constitutional Torts is, in part, a response to our sense that the upper level curriculum could be improved by courses that bring together areas of doctrine that are often studied in isolation. We think there is substantial value in bringing together seemingly disparate areas of doctrine that bear on a common real-world problem. Students benefit from learning how to put together concepts from different substantive areas in order to solve problems they will face in practice. Thomas A. Eaton Constitutional Law Torts/Personal Injury http://works.bepress.com/michael_wells/25 http://works.bepress.com/michael_wells/25 Thu, 04 Sep 2008 05:25:05 PDT Part I describes aspects of the historical and doctrinal background of judicial federalism. Part II examines the Court's treatment of the parity issue and shows how the Court's ambiguity permits both sides of the debate to avoid revealing their true objectives. Part III demonstrates that some, but not all, of the allocation doctrine can be explained in terms of a conflict between the plaintiff's litigating interest and the state's interest in maintaining the integrity of the state judicial process. A significant body of cases, however, does not fall within this framework. In these cases the Court seems to prefer state court because of, and not in spite of, the lack of parity. Part IV argues that this is a legitimate use of allocation rules, and that the capacity to pursue substantive aims through jurisdictional rules is a strong point of our federal system. Michael Wells Constitutional Law http://works.bepress.com/michael_wells/24 http://works.bepress.com/michael_wells/24 Thu, 04 Sep 2008 05:24:59 PDT Whether the Supreme Court should look to international law in deciding constitutional issue depends largely on what is meant by "looking to" international law. Some international norms are legally binding on American courts, either because we have agreed to follow them by adopting treaties or because they form part of the federal common law. I certainly agree that the Supreme Court, like the rest of us, ought to obey these aspects of international law. But the role of international norms in American courts has recently attracted attention for a different reason. In Lawrence v. Texas the Supreme Court, overruling Bowers v. Hardwick, struck down a statute that prohibited anal and oral sex between members of the same sex, on the ground that the statute violated the due process clause of the Fourteenth Amendment. In the course of the opinion, the Court cited a number of authorities, including a ruling by the European Court of Human Rights, in Dudgeon v. United Kingdom, that had invalidated similar laws. Other recent Supreme Court cases have made reference to decisions by international tribunals and other international norms, and Supreme Court justices, in their extracurricular writings, have championed the practice. Since nobody asserts that these rulings are legally binding on American courts, the Court's recent practice raises the question of why we should pay any attention to them.The hard question raised by Lawrence is just this: Should the Supreme Court give any weight to international law as a source of American constitutional doctrine, just because it exists?Contrary to what I take to be the view of the Lawrence majority, and contrary to Professor Bodansky, it seems to me the better answer is that it should not. Michael Wells International Law Constitutional Law http://works.bepress.com/michael_wells/23 http://works.bepress.com/michael_wells/23 Thu, 04 Sep 2008 05:24:54 PDT What is the proper role of rules in federal courts law? Some scholars associated with the Legal Process assert that rules are unimportant here. They believe that the values of principled adjudication and reasoned elaboration should take precedence over the making and application of rules. The area is, in the jargon of jurisprudence, "antipositivist." Others maintain that rules do, or at any rate should, count heavily in federal courts' decisionmaking. In this Article, I argue that Legal Process scholars are right to spurn formalism in most parts of federal courts law. But the Legal Process model of federal courts law is unsatisfactory; its logic seems to reject rules altogether, yet there are areas where rules do and should control decisions. Hence I seek a different explanation for the general antipositivism of the area.This Article argues that the weak role of rules in federal courts law may be accounted for and defended without embracing the tenets of the Legal Process. On the contrary, the reason there are few strong rules in this area is related to the justifications for rule-based decisionmaking in general. Those justifications vary in strength depending on context and are comparatively weak in the federal courts context. Rather than generally embracing rules or raising a presumption against them, courts and scholars should take a pragmatic view of the role of rules in federal courts law. They should decide whether or not to make rules based on the costs and benefits of rules in the context before them. Supreme Court decisions on the role of rules in federal courts law can be understood in these pragmatic terms, though the Court itself rarely reveals its jurisprudential premises. Michael Wells Courts http://works.bepress.com/michael_wells/21 http://works.bepress.com/michael_wells/21 Thu, 04 Sep 2008 05:24:46 PDT Most critics of the Supreme Court's abstention doctrines have attacked the substantive merits of rules that channel constitutional litigation away from federal courts and into state courts instead. In a recent article, Martin Redish raises an interesting objection to abstention from a different perspective. He addresses the institutional legitimacy of the rules and contends that whatever their merits, rules like these should be made only by Congress and not the Supreme Court, for they contravene Congress' intent to grant federal courts jurisdiction over constitutional claims against state actors.Part I of this article describes the context in which the choice of forum issue arises. Part II discusses the premise that Congress created a general federal cause of action against state actors for constitutional violations, a concept that Professor Redish passes over too quickly, and shows that the cause of action cannot be defended in terms of legislative intent. Part III examines the Court's justifications for abstention more carefully than Redish does, but shares his conclusion that the Court's doctrinal foundations must be abandoned. Part IV proposes that the area be viewed as a kind of federal common law and addresses the article III and other problems this approach presents. Michael Wells Constitutional Litigation http://works.bepress.com/michael_wells/20 http://works.bepress.com/michael_wells/20 Thu, 04 Sep 2008 05:24:42 PDT Tort liability in the private realm may be understood as "an instrument aimed...at deterrence...[and] a way of achieving corrective justice between the parties." Following the common law model, the Supreme Court has borrowed this normative framework for constitutional torts, ruling that the aims of liability for damages are to vindicate constitutional rights and to deter constitutional violations. A recent article by Daryl Levinson takes issue with this approach. Levinson argues that the superficial similarities between public torts and private torts conceal real differences, to which neither the Court nor scholars have paid adequate attention. The main point of his article, Making Government Pay, is to attack the "instrumental" rationale for allowing the victims of constitutional wrongdoing to recover damages. According to the instrumental rationale, the point of liability for damages is to deter officials from violating constitutional rights, just as it is said to do in the context of private tort liability. Levinson argues, to the contrary, that government officials do not necessarily respond to liability rules in the same way as private actors.Our focus here is on a secondary theme in Levinson's article. Having cast doubt on the instrumental rationale for constitutional tort law, Levinson turns to "non-instrumental" justifications. He maintains that there is no "persuasive non-deterrence rationale for forcing government to pay compensation to the victims of constitutional torts."In our view, Levinson's case against corrective justice is unpersuasive. Bernard P. Dauenhauer Constitutional Litigation Torts/Personal Injury http://works.bepress.com/michael_wells/19 http://works.bepress.com/michael_wells/19 Thu, 04 Sep 2008 05:24:38 PDT My argument will make heavy use of a distinction, introduced by Professor Bruce Ackerman, between two styles of reasoning in addressing legal issues. One is the perspective of the "Ordinary Observer," who begins his analysis by looking at the common practices of laymen and makes legal rules based on the expectation of a well-socialized member of society, without regard to whether the resulting body of law fits into any coherent pattern. Ackerman contrasts this method with that of the "Scientific Policymaker," who begins from the premise that the law should serve some goal or small group of goals and who views adjudication as an exercise in crafting rules that will help to realize those goals. I maintain that traditional tort law better fits the model of the Ordinary Observer, while the new regime in torts is largely the product of Scientific Policymaking. Michael Wells Torts/Personal Injury http://works.bepress.com/michael_wells/18 http://works.bepress.com/michael_wells/18 Thu, 04 Sep 2008 05:24:33 PDT Book review of CONTRACT LAW IN THE USSR AND THE UNITED STATES: HISTORY AND GENERAL CONCEPTS, by E. Allan Farnsworth and Victor P. Mozolin (Washington, D.C.: International Law Institute, 1987). Michael Wells International Law Contracts