Now that I got your attention. .  

I will preface my comments stating that I write merely as an outside observer rather than someone who has a dog in this fight.

 

 But. . . .

 

If the two most recent cases from the HOL discussed on list (Trent v. Jain and Austin v. Met Police) and the commnets on the list are to be taken as indication of broader trends, than it appears that the English common law is taking the initial steps towards mimicking the American experience whereby the common law was swallowed up, dominated by or simply rendered moot under the growing body of public/constitutional/European law.  

 

Since the heyday of the Warren Court in the 1960’s, questions liability for police liability shifted from common law tort claims to a special branch of constitutional law known as “constitutional torts,” wherein plaintiff sues the officer for breach of constitutional rights.  Under the facts of Austin, plaintiff’s would raise a claim for damages resulting from a Fourth Amendment violation. Because the Warren court showed willingness to find expansive liability for constitutional torts, most of the action was pushed in that direction. As the conservatives took over the court in the 80’s, they created a gloss asking whether the officer possesses “qualified immunity”--- a rule immunizing officers from suit unless the alleged constitutional violation has been “clearly established” by prior case law. While US courts have extensively analyzed the nature of constitutional torts and the scope of qualified immunity, these discussions have little overlap, influence or relation to the private law of torts. Instead of analyzing these cases in terms of the rights and duties that parties owe to each other (e.g Robert Steven’s approach), US law focuses on the scope of governmental power, the role of courts in micromanaging policing procedure and policy and of course,  general theories of constitutional interpretation.

 

Much the same is true for the issue raised in Trent v. Jain.  In US law these claim are conceptualized, not as a variation of common law tort, but as a specialized field of constitutional law known as “procedural due process.”  The 1960’s saw a huge expansion in government liability for due process violations, as the courts arrived at increasingly broad definitions of what is considered “property” and what process is “due”.
 These claims rise and fall on balancing decidedly public law factors.  The main doctrinal test (Matthews v. Eldridge) used in this area requires the court to balance (i) the importance of the interest involved, (ii) degree to which the procedure will make a difference, and (iii) the cost to the government of supplying the procedure. Again, these factors have limited application to the private law of torts, which is why these American cases have been of little interest to Commonwealth private lawyers.

 

I leave it to those who know more about English and EU law to determine whether these cases reflect a trend, and of course much depends on how European law is conceptualized and absorbed into exisitng English law. I’m just here to give an American perspective on where the logic might lead.

 

--cs

 

 

Chaim Saiman

 

Assistant Professor

Villanova Law School

610.519.3296

saiman@law.villanova.edu

view my research at http://ssrn.com/author=549545