46 Ga. L. Rev. 1003 (2012).

Abstract

In Torts as Wrongs, Professors John Goldberg and Benjamin Zipursky discuss the connection between "tortious wrongdoing" and "civil recourse." Their civil recourse theory "sees tort law as a means for empowering individuals to seek redress against those who have wronged them." Goldberg and Zipursky show that modern tort theory is dominated by "loss allocation," which uses liability and damages as instruments for assigning losses to deter unwanted behavior and to compensate the plaintiff. Under loss allocation, the central principle of damages is full compensation that is, to make the plaintiff whole. The core component of damages, though not the only one, is out-of-pocket expenses. Under civil recourse, by contrast, the aim is to redress the wrong through fair compensation, "requir[ing] of the fact-finder an overtly normative determination based on consideration not only of the losses suffered by the victim, but also of the character of the defendant's conduct,. . . and the power dynamic between the parties."

This Article examines the implications of these distinctions between loss allocation and civil recourse and between damages as indemnification (i.e., full compensation) and damages-as redress (i.e., fair compensation) in the context of constitutional torts. The distinctive feature of this type of litigation is that plaintiffs typically seek retrospective relief rather than injunctions or declaratory judgments aimed at ensuring future compliance with constitutional norms. Typical fact patterns include false arrest, excessive force by the police, mistreatment of prisoners, malicious prosecution, wrongful confinement, illegal searches and seizures, retaliation for speech that displeases officials, arbitrary interference with property rights, dismissals from government jobs without due process, and restrictions on the speech of public employees and students.

At the very least, the civil recourse approach stands in contrast to the loss allocation approach, thus offering a fresh perspective worthy of attention. This Article hopes to show that examining constitutional tort doctrine from the perspective of civil recourse enhances one's understanding of what is at stake in these cases and provides a new set of standards for evaluating the Court's work. Over a broad range of issues, a civil recourse approach holds the promise of shifting the terms of the debate in such a way that a stronger showing is needed to justify rules that foreclose plaintiffs from obtaining vindication of their rights, even if that vindication takes only the form of nominal damages. Part II of this Article distinguishes the civil recourse approach to constitutional torts from the Court's focus on compensation and deterrence and shows that civil recourse is a plausible alternative. Part III identifies the sharpest and most consequential difference between these two approaches-namely, their distinctive means of calculating damages; in particular, while the Court's loss allocation approach to damages aims to make the plaintiff whole, the civil recourse approach focuses on providing appropriate redress. Part IV explores the implications of moving from the "make the plaintiff whole" principle to "damages-as-redress" across a range of remedial issues, including presumed damages, punitive damages, and nominal damages. Part V identifies ways in which conceiving of damages as a means of redress, rather than as a means of indemnification, may enable plaintiffs to vindicate constitutional rights that now go entirely unremedied due to official immunity defenses. Part VI discusses important issues related to the recovery of attorney's fees awards in constitutional tort cases under the Civil Rights Attorney's Fees Awards Act of 1976. Finally, Part VII identifies, and counters, two major objections to importing civil recourse theory into constitutional torts law.

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