Affirmative Duties, Systemic Harms, and the Due Process Clause

Part I of the article lays out the major academic criticisms of DeShaney v. Winnebago County Department of Social Services. Part II describes the contours of liability for failure to protect in tort. Part III offers a positive explanation for the strong presumption against governmental liability in failure-to-protect cases: permitting broad liability for failure to protect would involve the courts in second-guessing political decisions about the use of limited community resources. This explanation has two parts. First, as a matter of institutional competence, budgetary decisions about the appropriate level and distribution of public services are better suited to political rather than judicial resolution. Second, failure-to-protect claims are more likely to involve the courts in budgetary review than other kinds of claims against the government. One may question exactly where the line between political and judicial action ought to be, but the notion that there is a line somewhere and that judges are seeking to draw such a line in these cases resonates in many areas of the law. Part IV demonstrates that the resource-allocation rationale has significant explanatory power in constitutional failure-to-protect cases. To the extent these considerations are a significant part of what is driving the results in failure to protect cases, they have not been addressed adequately by DeShaney‘s critics.