Roland Pinsky Jennie Pinsky and Eileen Fedowitz, Brian K. Doehr v. Robert K. Duncan and Joseph Golden Insurance Agency, John F. Di Giovanni

I concur in the judgment of the court but write to express caveats concerning (1) the interpretation of § 1983 and (2) the choice of malicious prosecution as the most analogous common-law tort to Doehr’s action.

My first reservation concerns the majority’s proposition that when interpreting 42 U.S.C. § 1983, a court is bound to look to the common law as it existed in 1871 when the Civil Rights Act was passed. I acknowledge that the Supreme Court has employed such analysis in its line of eases involving the immunity of state officials. See, e.g., Pierson v. Ray, 386 U.S. 547, 555-57, 87 S.Ct.…