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The Liability Rule for Constitutional Torts

There is no liability rule for constitutional torts. There are, rather, several different liability rules, ranging from absolute immunity at one extreme to absolute liability at the other. States and state agencies are absolutely immune from damages liability for violations of constitutional rights, no matter how egregious their conduct may be. The same is true for those who perform legislative, judicial, and certain prosecutorial actions. In contrast, local governments are strictly liable for constitutional violations committed pursuant to official policy or custom, even if the right found to have been violated was first recognized after the conduct triggering liability. Most defendants — including federal, state, and local officers — are neither absolutely immune nor strictly liable. Instead, they are protected by qualified immunity, a fault-based standard approximating negligence as to illegality. 

This article attempts a unified theory of constitutional torts. Less grandly, it offers a comprehensive normative guide to the award of damages for violation of constitutional rights. It seeks generally to align the damages remedy on one liability rule, a modified form of qualified immunity, with limited deviations justified on functional grounds and constrained by the reach of those functional justifications. The analysis begins with absolute immunity, then proceeds to absolute liability, and concludes with extended consideration of qualified immunity. The argument calls for curtailment of the first two categories and reform of the third. The overall goals are restoration of money damages as an effective means of enforcing constitutional rights; protection against the downside risks of wholly unconstrained damages liability; and rationalization of the law through simplification of existing doctrine.

Through the Antitrust Looking Glass: A New Vision of Delaware’s Takeover Defense Jurisprudence

Beginning in 1985, Delaware’s jurisprudence governing the legality of takeover defenses, i.e., poison pills, has centered around a subtly complex concept—proportionality—as introduced in the seminal case of Unocal Corp. v. Mesa Petroleum Co. Unfortunately, Unocal proportionality review, initially billed as a comparison of the threat posed by a hostile bidder and the board’s defensive response, never evolved into a true balancing of these two elements. The failure of Unocal proportionality review to develop into anything more than a fact-specific inquiry with little precedential value could easily be viewed as one of Delaware corporate law’s greatest disappointments.

In the face of widespread criticism from academic commentators and their frequent calls for doctrinal overhaul in the name of predictability and bright-line rules, this Note argues, however, that the ad hoc quality of Unocal proportionality review, along with other inconsistencies in Delaware corporate law, is entirely appropriate in the context of takeover defense jurisprudence. It reaches this conclusion by likening Delaware’s takeover defense doctrine to federal antitrust’s Rule of Reason, which polices illegal restraints on trade under the Sherman Act.

Using this comparison, this Note presents a novel paradigm for understanding Delaware’s review of defensive measures, positing that the regime’s so-called flaws are actually key components of an effective, antitrust-like mechanism for evaluating directors’ implementation of takeover defenses. In doing so, it will demonstrate not only that Delaware courts’ treatment of Unocal as an ad hoc, effects-based test is a workable and appropriate methodology, but also that Delaware courts are uniquely equipped to employ such a method and can do so without the typical difficulties often attending a case-specific form of review. As a result, this Note offers a unique perspective on the undervalued strength of Delaware’s takeover defense jurisprudence, challenging critics’ repeated calls for reform and providing practitioners with valuable insight into the true underlying goals of the law with which they seek to comply.

Clean Air Act Preemption of State Common Law: Greenhouse Gas Nuisance Claims After AEP v. Connecticut

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that the Clean Air Act displaces federal common law tort claims related to greenhouse gas emissions. This decision effectively signaled the end of a series of public nuisance lawsuits invoking the federal common law as a means of redressing the effects of global warming. While nuisance claims based on state common law could serve as a replacement, their viability depends on an important threshold question: whether, or to what extent, such claims are preempted by the Clean Air Act. This is an issue the Supreme Court raised, but declined to reach, in AEP, and it remains one of the most important questions for the future of greenhouse gas litigation. 

This Note addresses that issue by arguing that the Clean Air Act preempts only one variety of state-law nuisance claims: those brought pursuant to the law of a state other than that where the relevant emissions source is located. Claims brought pursuant to the law of the source state, by contrast, should be able to proceed. As this Note demonstrates, this result is compelled by the structure, text, and purpose of the Clean Air Act, as well as by the Supreme Court’s 1987 decision in International Paper Co. v. Ouellette. At the same time, policy considerations generally counsel against using litigation as a means of regulating greenhouse gas emissions. For this reason, Congress should provide for preemption of all greenhouse-gas-related nuisance claims, regardless of which state’s law applies.

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