Mississippi Law Journal, Vol. 68, No. 1 (Fall 1998), pp. 157-223


Constitutional tort law marries the substantive rights granted by the Constitution to the remedial mechanism of tort law. The sweeping language of 42 U.S.C. 1983 provides that "[e]very person who, under color of any [state law] subjects, or causes to be subjected, any [person] to the deprivation of any [constitutional rights] shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Constitutional tort suits raise, in a new context, many tort-like remedial questions relating to causation, immunity, and damages--and therein lies a problem. The usual source of answers to questions raised by a statutory remedy is the statute itself. But referring to the text of this statute is unavailing, because it does nothing more than authorize a remedy. Since section 1983 does not provide answers to the remedial questions that arise in tort suits, the Supreme Court has looked to the common law in resolving them. The Court said in Monroe v. Pape that section 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." In the years since Monroe, the Court has repeatedly declared that the statute creates "a species of tort liability," and has routinely employed concepts from the common law in resolving remedial issues. The Court has, in effect, erected a presumption in favor of the majority common law rule, subject to override based on strong constitutional tort policy considerations. Some of the opinions indicate that 1871 tort law is the benchmark, while others look to modern tort developments as well. My thesis is that, in erecting a presumption in favor of the common law, the Supreme Court has taken the wrong path. Instead of treating the common law as a source of constitutional tort law, it should think of constitutional tort as a fundamentally different legal artifact from common law tort. The Court should devise rules that reflect the distinctive features of damage suits aimed at vindicating constitutional rights. Rather than using the common law of torts as the model for constitutional tort, the Court ought to conceive of the backward-looking relief available in constitutional tort as part of the system of constitutional remedies, serving as a vehicle for filling in gaps left by forward-looking injunctive and defensive remedies. Part I describes the Court's use of common law doctrines in constitutional tort cases. One may attempt to justify the practice in two ways, either as a matter of the Court's obligation to follow Congressional directives, or as an exercise of judicial discretion in interpreting an open-textured statute. Part II argues that 42 U.S.C. 1983 does not oblige the Court to adopt common law rules. Part III maintains that the Court should not borrow the common law as a source of answers to constitutional tort questions. Part IV discusses some concrete doctrinal implications of abandoning the common law model.