Date: Tue, 26 Jun 2007 02:52

From: Neil Foster

Subject: Tort action for Government harassment - USSC

Dear Colleagues

In Wilkie v Robbins (25 June 2007) the US Supreme Court by 7-2 majority refused to create a common law tort action for breach of constitutional rights where it was claimed Federal Government officials had engaged in a course of harassment over some years to force a landowner to grant an easement over his land. The dissent on this point by Ginsburg & Stevens JJ is to my uninstructed mind fairly persuasive. In Commonwealth jurisdictions I would have thought the recently resuscitated action for "misfeasance in public office" might have been available - one feature of the action being that even if the public official does something they have formal power to do, it will still be actionable if done with "targeted malice". The recital of facts (even that conceded by the majority, but especially with some of the elements noted by Ginsburg J) looks a lot like targeted malice to me.

Regards
Neil Foster

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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