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Publication Date

2001

Abstract

It is a great pleasure to comment on these papers on a subject that has fascinated me since the beginning of my teaching career. My observations will no doubt reflect the roots of my thinking in an article I wrote on the subject in 1965' and other early publications, and, doubtless, my relative ignorance of the immense amount of case law that has flowed from courts since the mid-sixties. How�ever, informed by a little independent study and refreshed by the commentaries, I venture a few somewhat angular thoughts. They do not" in any way pretend to be exhaustive with respect to these excellent contributions, or even with respect to my own less�informed opinions. Professor Levinson has provided an admirable survey of how various theoretical positions apply to the award of damages for constitutional torts. He himself, however, has recognized the "problematical" nature of some of his suggestions. I would remark, in particular, that it would place the bar impossibly high for courts to require a "grand unified theory" concerning the "priorities of corrective and distributive justice." Since we are not likely to achieve that degree of perfection, we must seek to satisfice. It is apparent that a significant divide in this discussion exists between the kinds of acts usually described as police brutality and a variety of other alleged wrongs, ranging from municipal restraints on speech in the form of demonstrations to denials of various kinds of economic benefits. Putting aside the extraordinary expansion in the functional scope of § 1983 that courts effected after Monroe v. Pape, at the least it would seem that traditional tort-type damages are appropriate for police torts of the kind symbolized by the allegations of Monroe itself. Justice Frankfurter's bald presentation of those allegations' presents, as he surely understood, one of the best arguments against his lengthy and learned dissent. Certainly one of the most basic of constitutional rights is the right not to be beaten up by the cops---or by people who have taken on the role of the cops.

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