During the two-hundred-year history of the Bill of Rights, the Supreme Court occasionally has used those first ten Amendments to constitutionalize state common-law torts. In this essay, Professor Elaine Shoben argues that the Court would be well advised to forgo that practice. Pointing to the Court's experience in constitutionalizing defamation law under the First Amendment, Professor Shoben says when the Court meddles in state tort law, the result is a highly complex and very unsatisfactory body of law. On the Bicentennial of the Bill of Rights, this author recommends that if the Court feels compelled to reform a state common-law doctrine, the Justices should abolish rather than constitutionally refine that doctrine. Professor Shoben believes if the Court restricted itself to the choice of either affirming a doctrine's constitutionality or banning the doctrine outright, the Justices would undertake the more drastic step only in extraordinary circumstances.
1992 U. Ill. L. Rev. 173 (1992).
Shoben, Elaine W., "Uncommon Law and the Bill of Rights: The Woes of Constitutionalizing State Common-Law Torts" (1992). Scholarly Works. Paper 583.