Modern tort theory is dominated by the principle of 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 to make the
plaintiff whole through 'full" compensation. Recently, as
an alternative to loss allocation,Professors John Goldberg
and Benjamin Zipursky have advanced a civil recourse
theory of damages. In contrast to loss allocation, civil
recourse focuses tort law on empowering plaintiffs to seek
redress by evaluating damages through the lens of 'fair"
compensation. Goldberg and Zipursky's work is especially
timely because, in the context of constitutional torts, recent
Supreme Court decisions have suggested the need for a
compelling alternative to the loss allocation model.
Regardless of the strength of civil recourse theory as
applied to tort law generally, the model at least offers a
fresh perspective worthy of attention under the
constitutional tort doctrine. This Article thus examines
the distinctions between loss allocation and civil recourse
in the context of constitutional torts and shows how
applying civil recourse to this doctrine enhances one's
understanding of what is at stake in such cases while
offering a new set of standards for evaluating the Court's
work. In doing so, this Article illustrates how applying
civil recourse to constitutional torts properly puts
constitutional rights, wrongs, and vindication at the core
of the litigation and furnishes a normatively appealing set
of principles for resolving the remedial issues raised in
§ 1983 and Bivens cases.
Wells, Michael L.
"Civil Recourse, Damages-as-Redress, and Constitutional Torts,"
Georgia Law Review: Vol. 46:
4, Article 5.
Available at: https://digitalcommons.law.uga.edu/glr/vol46/iss4/5