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Boston University School of Law




In this article, I argue that state sovereign and official immunities, insofar as they bar recovery when private parties would be liable for similar conduct, are unconstitutional under the takings clause of the fifth amendment, as applied to the states under the fourteenth.22 A state's refusal to compensate plaintiffs for the tortious damage or destruction of property should be redressed by the federal courts in civil actions brought under § 1983.

Section I of this article provides background through a discussion of the Supreme Court's treatment of the problem of torts committed by government officials, primarily in procedural due process cases. This section illustrates that procedural due process analysis is a dead end, incapable of solving the problem of whether the federal courts (and federal law) should defer to state immunity decisions. Section II demonstrates how the takings clause can be interpreted to require states to compensate tort victims whenever similar conduct would give rise to liability between private parties. Under this theory, sovereign and official immunities would be unconstitutional to the extent they prevented state tort victims from receiving compensation. Section III addresses implementation concerns that comprise the technical body of federalism doctrine-that is, whether legal rules that limit access to federal courts should bar enforcement of the takings clause in federal court. I conclude that deference to state prerogatives requires at most that the state courts be allowed the initial opportunity to provide a remedy, but that ultimately the federal courts should be allowed to use the takings clause to overrule the state courts' refusal to provide compensation to victims of state-inflicted torts.

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