Georgia Law Review, Vol. 35, No. 3 (Spring 2001), pp. 903-929


Tort liability in the private realm may be understood as "an instrument deterrence...[and] a way of achieving corrective justice between the parties." Following the common law model, the Supreme Court has borrowed this normative framework for constitutional torts, ruling that the aims of liability for damages are to vindicate constitutional rights and to deter constitutional violations. A recent article by Daryl Levinson takes issue with this approach. Levinson argues that the superficial similarities between public torts and private torts conceal real differences, to which neither the Court nor scholars have paid adequate attention. The main point of his article, Making Government Pay, is to attack the "instrumental" rationale for allowing the victims of constitutional wrongdoing to recover damages. According to the instrumental rationale, the point of liability for damages is to deter officials from violating constitutional rights, just as it is said to do in the context of private tort liability. Levinson argues, to the contrary, that government officials do not necessarily respond to liability rules in the same way as private actors. Our focus here is on a secondary theme in Levinson's article. Having cast doubt on the instrumental rationale for constitutional tort law, Levinson turns to "non-instrumental" justifications. He maintains that there is no "persuasive non-deterrence rationale for forcing government to pay compensation to the victims of constitutional torts." In our view, Levinson's case against corrective justice is unpersuasive.