The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure – not only among the Justices, but also among leading scholarly critics – to see interconnected problems in a sufficiently broad frame.
This Article refocuses analysis along four interconnected dimensions. First, it examines relevant constitutional history, centrally including that of the maxim ‘for every right, a remedy’. That maxim has exerted significant generative force, but it has also been widely misunderstood. Second, the Article reviews and critiques recent Supreme Court decisions involving constitutional tort claims, many of which reflect fallacious assumptions. Third, the Article addresses the question, What role would damages and injunctive remedies for constitutional violations play in a justly and prudently designed legal system unfettered by historical accidents and path dependence? Commentators almost invariably assume that any gap between constitutional rights and individually effective, make-whole remedies is inherently regrettable. This Article refutes that premise. Although an ideal regime would substitute entity liability for officer liability and afford broad opportunities for victims of constitutional violations to vindicate their rights, it would not always authorize recovery of money damages.
Finally, the Article considers reforms that the Supreme Court could effectuate in the absence of action by Congress. Among other proposals, it calls for expansion of municipal liability in suits under 42 USC § 1983 and for reinvigoration of Bivens actions, but it defends the main outlines of qualified immunity doctrine against a spate of recent critics.
Richard H Fallon, Jr, Bidding Farewell to Constitutional Torts, 107 California Law Review 933 (2019).