ABSTRACT
A new Restatement of Constitutional Torts, just getting underway, and the Restatement (Third) Torts (Remedies) now in draft, provide an opportunity to revisit issues that have lain dormant for decades. In particular, federal courts typically require constitutional tort plaintiffs to prove physical or emotional harm in order to obtain damages. That doctrine deserves re examination, if only because the Supreme Court’s principal compensatory damages case dates from 1978, and its most recent ruling on the topic came in 1986.
The new Tort Remedies Restatement offers an opportunity to consider modification of that approach. It includes a new section on the emerging importance of ‘dignitary’ harm. That section provides the American Law Institute’s first systematic account of recovery for dignitary harm in common-law torts. This Article argues that the same dignitary harm principle should apply to constitutional torts: When the plaintiff proves a violation of constitutional rights, recovery for dignitary harm should include the distinctive injury caused by the constitutional violation in addition to the physical injury, economic loss, emotional distress, and other harms inflicted by ordinary torts.
Michael L Wells, Compensatory Damages and Dignitary Harm in the Upcoming Restatement of Constitutional Torts, 62 Houston Law Review 115 (2024).
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