TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, November 8, 2010

Guest Blogger Mike Wells: "Constitutional Torts and Tort Theory"

             By dividing the legal world into public and private, the law school curriculum tends to neglect topics that straddle the two areas. Consider, in particular, “constitutional tort.” In a better world, the quotation marks would not be necessary, as everyone would know that constitutional torts are  suits brought under 42 U.S.C. § 1983 or the federal common law cause of action recognized in  Bivens v. Six Unknown Named Federal Agents, in which plaintiffs seek damages for constitutional violations committed in the past. At the risk of overstating the point, my sense is that, fifty years after the Monroe v. Pape first read § 1983 as making these suits broadly available, many scholars on both sides of the public-private divide stick to their side of the public-private divide and think of constitutional tort as an odd hybrid, when they think about it at all.

             Modern tort law, or at least the part of it that most interests law professors, is  primarily concerned with products liability, mass torts, and other events and practices that may give rise to big losses. The pressing issue always seems to be which of two private entities should bear that loss, and with what social goal in mind should liability be imposed. Torts casebooks reflect this emphasis and rarely contain any materials on constitutional tort. (I do not mean to suggest that they should do so.) Constitutional scholarship and constitutional law survey courses deal mainly with  issues of separation of powers,  judicial review, and the general restrictions imposed on the state by the First and Fourteenth Amendments. As a result, neither constitutional scholars nor torts experts pay much attention to constitutional torts, and students learn little about § 1983 litigation for damages unless they take a specialized upper-level course. The whole area is left to a few obscure academics (me included) who have an interest in both public and private law. Yet this kind of litigation is ubiquitous in the federal courts. Beginning with Monroe, a 1961 case, its rise can be attributed in part to the growth of the regulatory state over the past fifty years, in part to the continuing elaboration of constitutional principles first articulated in the 1960s and 1970s, and in part to the Civil Rights Attorney’s Fee Awards Act of 1976. Public employees sue for mistreatment or dismissal in violation of their rights of free speech or due process, arrestees charge excessive force or illegal searches by the police, inmates claim abuse or neglect by guards, and so on.  Despite the practical importance of the constitutional law applied in these cases, constitutional law scholarship and casebooks pay little attention to it. More to the present point, torts scholars have ignored it as well.

             Opportunities abound to bring  the insights of tort theory to bear on the distinctive problems of constitutional tort law. When the constitutional claim involves the Fourth Amendment, for example, “reasonableness” is often the liability rule. Thus, police officers may be liable for excessive force but not for reasonable force in the circumstances. Just as in common law negligence, questions arise as to whether the judge or the jury should evaluate the officer’s conduct. While there are strong arguments for giving the jury a prominent role, it may be inappropriate simply to transplant common law judge-jury principles into constitutional tort. The problem is that case-by-case adjudication leaves the legal principle somewhat uncertain. This in turn gives rise to a defense of official immunity, which is available to police officers who commit constitutional violations unless they have violated “clearly established law.” A recent article addresses the issue. Another set of judge-jury issues come up in litigation over the free speech rights of public employees. Tort scholars interested in the general division of authority between judge and jury may find it interesting to consider whether and how the analysis of these issues should differ  in the constitutional tort context. Cause-in-fact, proximate cause, and affirmative duty issues also deserve attention  from scholars with a strong background in tort law.

            Besides these discrete areas of doctrine, the whole array of normative issues bearing on the aims of tort law are present in constitutional tort, and should be examined in light of the distinctive features of litigation seeking retrospective relief for constitutional violations. One of these is interplay between the immunity doctrine and the “incentives” goal of tort liability. According to the Supreme Court, the aims of constitutional tort include vindicating constitutional rights and deterring constitutional violations, but those aims must be compromised in view of the  need to avoid unduly deterring officers from acting boldly in the public interest.  The official immunity defense attempts  to achieve a balance between effective enforcement and too much enforcement. But immunity makes deterrence far harder to achieve in constitutional tort law, simply because it countenances some number of constitutional violations. A tort theorist might ask whether the current doctrine achieves the optimum balance. One problem is that Harlow v. Fitzgerald defines immunity in objective terms, thereby allowing some officers to escape liability even though they act in bad faith. In other instances,  there is no effort at all to deter. Officers engaging in judicial, prosecutorial, or legislative functions enjoy absolute immunity. In addition, one can question  the whole project of trying to deter misconduct by government through liability rules, given that governments can foist off the costs of their actions on taxpayers and may respond more to political pressures than to damage awards. Daryl Levinson briefly discusses this and other deterrence-related problems here (see pages 367-73).  Torts theorists who favor viewing the liability rules as a means of encouraging proper behavior may find it worthwhile to ask whether and how their approach could be adapted to the constitutional tort context.

             An alternative to official liability, advanced by Peter Schuck almost thirty years ago,  is to accept the need for official immunity, and instead borrow from enterprise liability theory (see pages 100-21).  In this view  governments would be liable for the constitutional torts committed by officers in the course of their duties, just as enterprise liability holds firms liable for injuries generated by their business. While enterprise liability aspires to deter, by giving the enterprise incentives to control its workers, its hallmark is assuring the compensation of victims. Schuck’s thesis underlies a vast literature that criticizes the Supreme Court’s ruling in Monell v. Department of Social Services,  which rejected respondeat superior liability on the part of municipal governments for their employees’ constitutional violations. From the perspective of tort theory, one might concede the case for enterprise liability in ordinary tort law and at the same time question its application to constitutional torts. Arguably, the problem is that the analogy between the two areas is flawed. Enterprise liability starts from the premise that out-of-pocket losses ought to be spread as widely as possible, in order to minimize the harm caused by accidents. If the reported cases are a reliable guide, constitutional torts do not typically produce large out-of-pocket losses. For the most part the injury produced by a constitutional violation is intangible and cannot be spread around, any more than emotional distress can be spread by liability for common law torts.  I merely want to raise the issue and suggest that tort theorists could contribute to its resolution. Perhaps I am wrong in doubting the enterprise liability approach, and in any event I am sure that more empirical work needs to be done on this and many other constitutional tort topics.

              John Goldberg and Benjamin Zipursky’s civil recourse theory seems to me to be a more promising set of norms for constitutional tort. Professor Robinette may well be right to question the descriptive claims of civil recourse theory. I share Professor Jane Stapleton’s view that  civil recourse may be more effective as a  normative theory than as an account of the nature of tort law. Constitutional torts may be an especially attractive area for elaborating civil recourse norms, since constitutional violations or some subset of them would clearly qualify as “wrongs” for which recourse should be available. One of the issues that deserves attention is whether the preceding sentence should say “some” or “all.” Another concerns damages. Civil recourse favors “damages as redress” over “damages as indemnification.”  Whatever may be the better model for ordinary tort, redress seems a more appropriate goal than indemnification in constitutional tort, on account of  the intangible nature of many constitutional injuries.  In short, civil recourse provides  plenty of resources for torts scholars interested in  contributing to the development of constitutional tort.

--Mike Wells, Marion and W. Colquitt Carter Chair in Tort and Insurance Law, Georgia School of Law

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