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1990 Duke L.J. 1078 (1990)
Administrative Failure and Local Democracy: The Politics of DeShaney

handle is hein.journals/duklr1990 and id is 1091 raw text is: ESSAY ADMINISTRATIVE FAILURE AND LOCAL DEMOCRACY: THE POLITICS OF DESHANEY JACK M. BEERMANN* INTRODUCTION This Essay is an effort to construct a normative basis for a constitu- tional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.' In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker had reason to believe the abuse was occurring.2 Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has cus- tody of the victim,3 thus settling a controversial constitutional issue. This decision should be resisted because it tends to keep power from the powerless and preserves political power in the hands of the few. The glaring failures of the DeShaney opinion invite attack. Formal- istic and unambitious in its examination of history, the opinion reaches out to decide the broadest constitutional issue presented.4 Most seri- ously, on the level of judicial craftsmanship, the opinion fails to engage in * Professor of Law, Boston University School of Law. B.A., 1980, University of Wisconsin- Madison; J.D., 1983, University of Chicago. I benefited from the generosity of many people who took the time to help me with this project- among them Kate Bartlett, Barbara Beermann, Eric Blumenson, Michael Collins, Richard Cudahy, Clay Gillette, Fred Lawrence, Chip Lupu, Bob Seidman, Ken Simons, Joe Singer, and Avi Soifer. Valuable research assistance was provided by Manal Corwin and Gloria LaPlante. A summer re- search grant from the Boston University School of Law provided financial support. 1. 489 U.S. 189 (1989). 2. I. at 191. 3. The Court acknowledged that the state owes affirmative duties to people in state custody and suggested that it also might owe affirmative duties to come to the aid of children placed by the state in foster care or others whose plight was caused or aggravated by state action. See id at 198- 201, 198 n.5, 200 n.8, 201 n.9. 4. The Court declined to reach the non-constitutional issues of whether the defendants were immune and whether the standard for county liability was met; it also declined to reach the constitu- tional issue of whether the state officials had the state of mind necessary to support a due process claim. See id at 202 n.10. 1078