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Publication Date

2001

Abstract

I will argue in this Essay that there are a number of reasons to expect that the imposition of constitutional tort damage awards against individual officers or their municipal employers does have a deterrent effect on the behavior of these governmental actors and entities. In Part I, I will focus on the ways in which the imposition of constitutional tort remedies against an individual officer does deter. While Professor Levinson decries the inability of the law and economics paradigm to explain government actors' response to constitutional tort damages, he fails to meaningfully account for the role of the qualified immunity doctrine, the most important difference between the private and public sector in this context.18 The modern standard for qualified immunity ensures that socially beneficial infringements of constitutional rights are immunized and thus removed from the cost-benefit calculus. As I will show, the socially optimal level of police activity which is so egregious and devoid of social utility that it fails the qualified immunity test is zero. Therefore, we are liberated from the traditional concern that the imposition of constitutional tort damage remedies will overdeter desirable police activity, and are left only with the question of whether these remedies serve to deter police misconduct at all. As I will argue, there are several reasons to expect that the imposition of damages liability for non-immunized conduct serves an important deterrence function.

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