The Liability Rule for Constitutional Torts

Article — Volume 99, Issue 2

99 Va. L. Rev. 207
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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.

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  Volume 99 / Issue 2  

The Liability Rule for Constitutional Torts

By John C. Jeffries, Jr.
99 Va. L. Rev. 207

Prosecutorial Administration: Prosecutor Bias and the Department of Justice

By Rachel E. Barkow
99 Va. L. Rev. 271

Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs

By Shruti Chaganti
99 Va. L. Rev. 343

Chevron and Constitutional Doubt

By Jonathan D. Urick
99 Va. L. Rev. 375