Article

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.

Persuasion Treaties

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, we simply cannot address critical global problems without them.

I use the term “persuasion” to communicate the observation that the success—and sometimes the very existence—of treaties in this class depends upon whether state parties can successfully enlist private sector support. The theory builds on recent scholarship that identifies the depth of regulatory interdependence between private and public sector actors. Business entities may choose either to cooperate with or to impede domestic regulatory regimes, and their decisions are not fully susceptible to legal control. The business choice is significant on the international stage: without a successful domestic regulatory regime, a state will not be able to keep corresponding international commitments. Moreover, many states do not commit to treaties they cannot implement or enforce. Thus, persuasion treaty regimes must attract the support of relevant business entities, either ex ante (to secure international agreement) or ex post (to achieve results).

The Forgotten Foundations of Hart and Sachs

The set of teaching materials known as The Legal Process continues to exert tremendous influence over mainstream public-law scholarship. Developed by Harvard Law Professors Henry M. Hart, Jr. and Albert M. Sacks in the late 1950s, those materials formed the cornerstone of the legal education of generations of lawyers, judges, and legal scholars. In part for that reason, the methods of legal interpretation and institutional analysis they articulated arguably still constitute the reigning paradigm of scholarship in the areas of statutory interpretation, federal courts, and administrative law. 

Despite their pervasive influence, however, the philosophical and jurisprudential foundations of The Legal Process are poorly understood. The standard historical account of the text denies any such foundations exist, characterizing it instead as an effort by its editors to respond to the skeptical threat of Legal Realism by advancing an “instrumentalist” or “neutral” theory of law that denied the need for, or value of, any deeper philosophical justification.

Though originally offered as a critique of the approach embodied in the teaching
materials, that account has been accepted even by those working within the Legal Process framework. That acceptance is surprising and troubling, because the standard historical account is deeply mistaken. In the first chapter of The Legal Process, the editors consciously advance controversial positions on the nature of morality, law, and legal knowledge. And if one looks carefully at those positions and the sources the editors rely on in staking them out, one can see that they were trying to construct a model of legal practice and scholarship based on the metaphysical and epistemological doctrines of one strand of philosophical pragmatism. Understanding such philosophical commitments not only enables us to better explain how Hart and Sacks took themselves to be responding to Legal Realism, but also forces us to consider how more recent efforts to ground legal practice fare in comparison.

©Virginia Law Review Association. All rights reserved.