Disaggregating constitutional torts

Yale Law Journal

Volumn 110, Issue 2, 2000, Pages 259-291

  Jeffries Jr , John C ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042693141     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797574     Document Type: Article

References (150)

1. 365 U.S. 167 (1961).
2. The statute provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983 (1994).
3. Writing for the Court, Justice Douglas found that the statute had three aims: (1) to override discriminatory state laws; (2) to provide a federal remedy where procedural obstacles corrupted the enforcement of state law; and (3) "to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice." Monroe, 365 U.S. at 173-74. Obviously, these purposes do not necessarily signal an intent to create a federal remedy where state law is adequate in both theory and practice.
4. See, e.g., Eric H. Zagrans, "Under Color of" What Law: A Reconstructed Model of Section 1983 Liability, 71 VA. L. REV. 499, 502 (1985) (arguing that "[a]s a matter of statutory construction Monroe is flatly wrong").
5. See, e.g., David Achtenberg, A "Milder Measure of Villainy": The Unknown History of 42 U.S.C. § 1983 and the Meaning of "Under Color of" Law, 1999 UTAH L. REV. 1, 5 (seeking to dispel the "remarkably persistent myth that the Forty-second Congress never intended the provision to cover constitutional wrongs unless those wrongs were actually authorized by state law"); Steven L. Winter, The Meaning of "Under Color of" Law, 91 MICH. L. REV. 323, 325 (1992) (condemning the "Frankfurter-Zagrans misinterpretation of section 1983" as "not only wrong, but wildly ahistorical").
6. See, e.g., David Achtenberg, A "Milder Measure of Villainy": The Unknown History of 42 U.S.C. § 1983 and the Meaning of "Under Color of" Law, 1999 UTAH L. REV. 1, 5 (seeking to dispel the "remarkably persistent myth that the Forty-second Congress never intended the provision to cover constitutional wrongs unless those wrongs were actually authorized by state law"); Steven L. Winter, The Meaning of "Under Color of" Law, 91 MICH. L. REV. 323, 325 (1992) (condemning the "Frankfurter-Zagrans misinterpretation of section 1983" as "not only wrong, but wildly ahistorical").
7. For an example of this approach, see Smith v. Wade, 461 U.S. 30 (1983), in which the Court engaged in an extensive review of nineteenth-century sources to support its conclusion that punitive damages should be available for "callous indifference" to federal rights. Id. at 56. Three Justices performed a similar historical exegesis to support a requirement of "bad faith or improper motive on the part of the defendant" before damages could be awarded. Id. (Rehnquist, J., dissenting). Only Justice O'Connor thought that the Court should consult "the policies underlying § 1983 to determine which rule [is] best." Id. at 93 (O'Connor, J., dissenting).
8. Monroe itself is an example. More flamboyant is Pulliam v. Allen, 466 U.S. 522 (1984), in which the Court recounted the techniques through which the King's Bench asserted primacy among English courts as a basis for concluding that American judges were not absolutely immune from injunctive relief. Id. at 529-36. The Court conceded that "[t]he relationship between the King's Bench and its collateral and inferior courts is not precisely paralleled in our system by the relationship between the state and federal courts," id. at 535, but insisted that the history of this question, as it arose in a different country in a different era and under a different legal system, was nonetheless "highly relevant," id. at 536.
9. See, for example, Owen v. City of Independence, 445 U.S. 622 (1980), in which the Court considered whether municipalities and other local governments would have the same qualified immunity from damages liability available to all other "persons" sued under § 1983. The Court found that, for most purposes, municipalities enjoyed absolute, not qualified, immunity in the nineteenth century and inferred that they therefore should have no immunity at all in the twentieth. Id. at 638-50.
10. I have forgotten from whom I stole this remark.
11. Monroe, 365 U.S. at 191 ("We do not reach those policy considerations.").
12. 436 U.S. 658 (1978) (discussing exclusively legislative intent and the reasons for departing from stare decisis).
13. Representative Blair's detailed criticism of the Sherman amendment figured largely in the Court's reconsideration of municipal liability in Monell, 436 U.S. at 673-75. Representative Shellabarger sponsored H.R. 320, which eventually became § 1983. His remarks are cited in Monroe, 365 U.S. at 185, 228 & n.41, 232 n.48, and in Monell, 436 U.S. at 669-73, 683-84.
14. Early examples are the cases in which the Court has eliminated the "subjective branch" of qualified immunity in an effort to streamline § 1983 litigation and avoid trial of insubstantial claims. E.g., Harlow v. Fitzgerald, 457 U.S. 800, 813-18 (1982) (extensively analyzing the "balance between the evils inevitable in any available alternative" scheme of qualified immunity).
15. For trenchant criticism of the traditional approach, see Jack M. Beermann, A Critical Approach to Section 1983 with Special Attention to Sources of Law, 42 STAN. L. REV. 51 (1989), which criticizes the Court's "manipulation" of legislative history and other sources as "transparent"; Richard A. Matasar, Personal Immunities Under Section 1983: The Limits of the Court's Historical Analysis, 40 ARK. L. REV. 741 (1987), which criticizes the Court's reliance on history in official immunity cases; and Michael Wells, The Past and the Future of Constitutional Torts: From Statutory Interpretation to Common Law Rules, 19 CONN. L. REV. 53, 54 (1986), which urges the Court to "discard legislative intent as an analytic tool for adjudicating constitutional tort claims."
16. For trenchant criticism of the traditional approach, see Jack M. Beermann, A Critical Approach to Section 1983 with Special Attention to Sources of Law, 42 STAN. L. REV. 51 (1989), which criticizes the Court's "manipulation" of legislative history and other sources as "transparent"; Richard A. Matasar, Personal Immunities Under Section 1983: The Limits of the Court's Historical Analysis, 40 ARK. L. REV. 741 (1987), which criticizes the Court's reliance on history in official immunity cases; and Michael Wells, The Past and the Future of Constitutional Torts: From Statutory Interpretation to Common Law Rules, 19 CONN. L. REV. 53, 54 (1986), which urges the Court to "discard legislative intent as an analytic tool for adjudicating constitutional tort claims."
17. For trenchant criticism of the traditional approach, see Jack M. Beermann, A Critical Approach to Section 1983 with Special Attention to Sources of Law, 42 STAN. L. REV. 51 (1989), which criticizes the Court's "manipulation" of legislative history and other sources as "transparent"; Richard A. Matasar, Personal Immunities Under Section 1983: The Limits of the Court's Historical Analysis, 40 ARK. L. REV. 741 (1987), which criticizes the Court's reliance on history in official immunity cases; and Michael Wells, The Past and the Future of Constitutional Torts: From Statutory Interpretation to Common Law Rules, 19 CONN. L. REV. 53, 54 (1986), which urges the Court to "discard legislative intent as an analytic tool for adjudicating constitutional tort claims."
18. See, e.g., Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857 (1999) (advancing a typology of right-remedy interaction).
19. The normative aspect of this proposition is opposed by the weight of academic opinion, which favors strict liability for all constitutional violations. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1490-91 (1987) (endorsing the "remedial imperative" of governmental liability); Mark R. Brown, Correlating Municipal Liability and Official Immunity Under Section 1983, 1989 U. ILL. L. REV. 625, 631 (contending that governmental liability and officer immunity should be correlated to eliminate any gap between right and remedy); Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 IOWA L. REV. 273, 311-12 (1994) [hereinafter Brown, The Demise of Constitutional Prospectivity] (condemning immunity from award of damages even for violations of newly declared constitutional rights); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 756 (1992) (endorsing strict governmental liability for constitutional violations); Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 VA. L. REV. 997, 1019 (1990) (endorsing compensatory damages for all foreseeable harms resulting from constitutional violations); Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225, 229-30 (1986) (endorsing strict governmental liability for constitutional violations).
20. The normative aspect of this proposition is opposed by the weight of academic opinion, which favors strict liability for all constitutional violations. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1490-91 (1987) (endorsing the "remedial imperative" of governmental liability); Mark R. Brown, Correlating Municipal Liability and Official Immunity Under Section 1983, 1989 U. ILL. L. REV. 625, 631 (contending that governmental liability and officer immunity should be correlated to eliminate any gap between right and remedy); Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 IOWA L. REV. 273, 311-12 (1994) [hereinafter Brown, The Demise of Constitutional Prospectivity] (condemning immunity from award of damages even for violations of newly declared constitutional rights); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 756 (1992) (endorsing strict governmental liability for constitutional violations); Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 VA. L. REV. 997, 1019 (1990) (endorsing compensatory damages for all foreseeable harms resulting from constitutional violations); Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225, 229-30 (1986) (endorsing strict governmental liability for constitutional violations).
21. The normative aspect of this proposition is opposed by the weight of academic opinion, which favors strict liability for all constitutional violations. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1490-91 (1987) (endorsing the "remedial imperative" of governmental liability); Mark R. Brown, Correlating Municipal Liability and Official Immunity Under Section 1983, 1989 U. ILL. L. REV. 625, 631 (contending that governmental liability and officer immunity should be correlated to eliminate any gap between right and remedy); Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 IOWA L. REV. 273, 311-12 (1994) [hereinafter Brown, The Demise of Constitutional Prospectivity] (condemning immunity from award of damages even for violations of newly declared constitutional rights); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 756 (1992) (endorsing strict governmental liability for constitutional violations); Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 VA. L. REV. 997, 1019 (1990) (endorsing compensatory damages for all foreseeable harms resulting from constitutional violations); Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225, 229-30 (1986) (endorsing strict governmental liability for constitutional violations).
22. The normative aspect of this proposition is opposed by the weight of academic opinion, which favors strict liability for all constitutional violations. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1490-91 (1987) (endorsing the "remedial imperative" of governmental liability); Mark R. Brown, Correlating Municipal Liability and Official Immunity Under Section 1983, 1989 U. ILL. L. REV. 625, 631 (contending that governmental liability and officer immunity should be correlated to eliminate any gap between right and remedy); Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 IOWA L. REV. 273, 311-12 (1994) [hereinafter Brown, The Demise of Constitutional Prospectivity] (condemning immunity from award of damages even for violations of newly declared constitutional rights); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 756 (1992) (endorsing strict governmental liability for constitutional violations); Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 VA. L. REV. 997, 1019 (1990) (endorsing compensatory damages for all foreseeable harms resulting from constitutional violations); Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225, 229-30 (1986) (endorsing strict governmental liability for constitutional violations).
23. The normative aspect of this proposition is opposed by the weight of academic opinion, which favors strict liability for all constitutional violations. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1490-91 (1987) (endorsing the "remedial imperative" of governmental liability); Mark R. Brown, Correlating Municipal Liability and Official Immunity Under Section 1983, 1989 U. ILL. L. REV. 625, 631 (contending that governmental liability and officer immunity should be correlated to eliminate any gap between right and remedy); Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 IOWA L. REV. 273, 311-12 (1994) [hereinafter Brown, The Demise of Constitutional Prospectivity] (condemning immunity from award of damages even for violations of newly declared constitutional rights); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 756 (1992) (endorsing strict governmental liability for constitutional violations); Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 VA. L. REV. 997, 1019 (1990) (endorsing compensatory damages for all foreseeable harms resulting from constitutional violations); Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225, 229-30 (1986) (endorsing strict governmental liability for constitutional violations).
24. The normative aspect of this proposition is opposed by the weight of academic opinion, which favors strict liability for all constitutional violations. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1490-91 (1987) (endorsing the "remedial imperative" of governmental liability); Mark R. Brown, Correlating Municipal Liability and Official Immunity Under Section 1983, 1989 U. ILL. L. REV. 625, 631 (contending that governmental liability and officer immunity should be correlated to eliminate any gap between right and remedy); Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 IOWA L. REV. 273, 311-12 (1994) [hereinafter Brown, The Demise of Constitutional Prospectivity] (condemning immunity from award of damages even for violations of newly declared constitutional rights); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 756 (1992) (endorsing strict governmental liability for constitutional violations); Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 VA. L. REV. 997, 1019 (1990) (endorsing compensatory damages for all foreseeable harms resulting from constitutional violations); Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225, 229-30 (1986) (endorsing strict governmental liability for constitutional violations).
25. The normative aspect of this proposition is opposed by the weight of academic opinion, which favors strict liability for all constitutional violations. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1490-91 (1987) (endorsing the "remedial imperative" of governmental liability); Mark R. Brown, Correlating Municipal Liability and Official Immunity Under Section 1983, 1989 U. ILL. L. REV. 625, 631 (contending that governmental liability and officer immunity should be correlated to eliminate any gap between right and remedy); Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 IOWA L. REV. 273, 311-12 (1994) [hereinafter Brown, The Demise of Constitutional Prospectivity] (condemning immunity from award of damages even for violations of newly declared constitutional rights); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 756 (1992) (endorsing strict governmental liability for constitutional violations); Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 VA. L. REV. 997, 1019 (1990) (endorsing compensatory damages for all foreseeable harms resulting from constitutional violations); Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225, 229-30 (1986) (endorsing strict governmental liability for constitutional violations).
26. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 54-59 (1998) (documenting the centrality of fault in § 1983 litigation).
27. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
28. Jeffries, supra note 17, at 58-59 (detailing doctrinal restrictions on strict liability of local governments).
29. On the absolute immunity of officers performing legislative, judicial, and certain prosecutorial functions, as well as the likely ways around that defense by suing another defendant, see id. at 57.
30. Harlow v. Fitzgerald, 457 U.S. 800, 821 (1982) (Brennan, J., concurring).
31. 483 U.S. at 643; see also Crawford-El v. Britton, 523 U.S. 574, 605 n.2 (1998) (Rehnquist, C.J., dissenting) (quoting the statement from Creighton). 23. 403 U.S. 388, 397 (1971) (authorizing damages actions against federal officers for violation of the Fourth Amendment). The immunities available to federal officers under Bivens are the same as those available to state and local officers under § 1983, and the two lines of cases are cited interchangeably. E.g., Butz v. Economou, 438 U.S. 478, 504 (1978) (concluding that it would be "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal offircials").
32. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam) (holding that Secret Service agents are entitled to qualified immunity for unconstitutional arrest "if a reasonable officer could have believed" that the arrest was lawful); Creighton, 483 U.S. at 641 (same standard).
33. E.g., 2 SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983, at §§ 8.28-.99 (4th ed. 1999) (analyzing separately the qualified immunity of school officials, mental-hospital officials, prison employees, law enforcement officers, and state and local government executives); 1B MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS AND DEFENSES § 9.14 (3d ed. 1997) (cataloguing qualified immunity cases for law enforcement officers, prison officials, school officials, mental-hospital administrators, and other state and local officials).
34. PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 64-77 (1983); Jeffries, supra note 17, at 70-71, 73-74.
35. On compensation as a noninstrumental concern, see John C. Jeffries, Jr., Compensation for Constitutional Torts: Reflections on the Significance of Fault, 88 MICH. L. REV. 82, 99-101 (1989), which argues that the noninstrumental rationale of corrective justice does not require strict damages liability for constitutional violations. This argument has been criticized on its own terms, but more strongly on the ground that it ignores the primacy of instrumental concerns in the law of § 1983. E.g., Brown, The Demise of Constitutional Prospectivity, supra note 16, at 298 (arguing that qualified immunity is essentially instrumental, as its purpose is not to deny redress for wrongdoing but to promote independent decisionmaking by officials); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 836-37 (1992) (disputing the assumption "that we can meaningfully discuss noninstrumental or nondeterrent rationales for § 1983's remedial scheme without considering deterrence");
36. On compensation as a noninstrumental concern, see John C. Jeffries, Jr., Compensation for Constitutional Torts: Reflections on the Significance of Fault, 88 MICH. L. REV. 82, 99-101 (1989), which argues that the noninstrumental rationale of corrective justice does not require strict damages liability for constitutional violations. This argument has been criticized on its own terms, but more strongly on the ground that it ignores the primacy of instrumental concerns in the law of § 1983. E.g., Brown, The Demise of Constitutional Prospectivity, supra note 16, at 298 (arguing that qualified immunity is essentially instrumental, as its purpose is not to deny redress for wrongdoing but to promote independent decisionmaking by officials); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 836-37 (1992) (disputing the assumption "that we can meaningfully discuss noninstrumental or nondeterrent rationales for § 1983's remedial scheme without considering deterrence");
37. On compensation as a noninstrumental concern, see John C. Jeffries, Jr., Compensation for Constitutional Torts: Reflections on the Significance of Fault, 88 MICH. L. REV. 82, 99-101 (1989), which argues that the noninstrumental rationale of corrective justice does not require strict damages liability for constitutional violations. This argument has been criticized on its own terms, but more strongly on the ground that it ignores the primacy of instrumental concerns in the law of § 1983. E.g., Brown, The Demise of Constitutional Prospectivity, supra note 16, at 298 (arguing that qualified immunity is essentially instrumental, as its purpose is not to deny redress for wrongdoing but to promote independent decisionmaking by officials); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 836-37 (1992) (disputing the assumption "that we can meaningfully discuss noninstrumental or nondeterrent rationales for § 1983's remedial scheme without considering deterrence");
38. Nahmod, supra note 16, at 1004 (arguing that qualified immunity is "essentially instrumental in nature"). Contra Barbara E. Armacost, Qualified Immunity: Ignorance Excused, 51 VAND. L. REV. 583, 666-720 (1998) (justifying qualified immunity on the ground that civil damages liability has a "moral blaming function" analogous to criminal prosecution and is therefore appropriate when the officer had "fair notice" of illegality).
39. Here, as elsewhere, I use "strict liability" to refer to the liability rule that would obtain if the fault requirement of qualified immunity were eliminated from § 1983. In some cases, the underlying constitutional violation would require a reprehensible state of mind quite apart from the law of § 1983. In those cases, eliminating the defense of qualified immunity would render liability "strict" only in a limited sense. A better formulation might be that eliminating qualified immunity would render damages liability potentially strict, depending on the content of the underlying right. Jeffries, supra note 17, at 57 (explaining this point).
40. See KENNETH S. ABRAHAM, THE FORMS AND FUNCTIONS OF TORT LAW 164-65 (1997) (explaining the effect of strict liability on activity levels); Steven Shavell, Strict Liability Versus Negligence, 9 J. LEGAL STUD. 1, 6-7 (1980) (stating that, in general, activity levels will be lower under strict liability than under a fault-based regime).
41. See KENNETH S. ABRAHAM, THE FORMS AND FUNCTIONS OF TORT LAW 164-65 (1997) (explaining the effect of strict liability on activity levels); Steven Shavell, Strict Liability Versus Negligence, 9 J. LEGAL STUD. 1, 6-7 (1980) (stating that, in general, activity levels will be lower under strict liability than under a fault-based regime).
42. ABRAHAM, supra note 29, at 164-65.
43. RESTATEMENT (SECOND) OF TORTS § 519 (1977) (discussing strict liability for "abnormally dangerous activity"); see also id. § 520(f) (stating that among the factors to be considered in determining whether an activity is "abnormally dangerous" under section 519 is whether "its value to the community is outweighed by its dangerous attributes").
44. I have in mind here such practices as the pronounced disinclination of many courts to enter summary judgment for defendants in negligence cases, thus opening the door for juries to impose liability with or without fault. For example, it has been recognized for decades that liberal use of res ipsa loquitur to prove negligence leans toward strict liability. E.g., Escola v. Coca Cola Bottling Co., 150 P.2d 436, 441 (Cal. 1944) (Traynor, J., concurring) ("In leaving it to the jury to decide whether the inference [of negligence] has been dispelled, regardless of the evidence against it, the negligence rule approaches the rule of strict liability."); ABRAHAM, supra note 29, at 97 (describing res ipsa loquitur as "a way of obtaining under-the-table strict liability").
45. SCHUCK, supra note 26, at 59-81. For a similar view, see, for example, Richard A. Posner, Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 WASH. L. REV. 635, 638-40 (1982), which argues that both exclusion of evidence and officer liability for Fourth Amendment violations risk overdeterrence of legitimate law enforcement activity.
46. See SCHUCK, supra note 26, at 80 (noting that persons injured by affirmative wrongdoing are far more likely to seek redress than the "invisible victims of official self-protection"); Jerry L. Mashaw, Civil Liability of Government Officers: Property Rights and Official Accountability, 42 LAW & CONTEMP. PROBS. 8, 29 (1978) (discussing the "problematic" nature of causes of action for a law enforcement officer's failure to act).
47. See SCHUCK, supra note 26, at 80 (noting that persons injured by affirmative wrongdoing are far more likely to seek redress than the "invisible victims of official self-protection"); Jerry L. Mashaw, Civil Liability of Government Officers: Property Rights and Official Accountability, 42 LAW & CONTEMP. PROBS. 8, 29 (1978) (discussing the "problematic" nature of causes of action for a law enforcement officer's failure to act).
48. For a famous example, see DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 196-97, 202 (1989), which concludes that a state's failure to protect a victim of child abuse did not violate due process.
49. Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 686 (1987) (finding no cases in which "an individual official had borne the cost of an adverse constitutional tort judgment"); Jeffries, supra note 17, at 49-50 (asserting that, "[s]o far as can be assessed," governments defend their officers against constitutional tort claims and indemnify them for adverse judgments); Lant B. Davis et al., Project, Suing the Police in Federal Court, 88 YALE L.J. 781, 810-12 (1979) (reporting government defense and indemnification of police officers in Connecticut).
50. Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 686 (1987) (finding no cases in which "an individual official had borne the cost of an adverse constitutional tort judgment"); Jeffries, supra note 17, at 49-50 (asserting that, "[s]o far as can be assessed," governments defend their officers against constitutional tort claims and indemnify them for adverse judgments); Lant B. Davis et al., Project, Suing the Police in Federal Court, 88 YALE L.J. 781, 810-12 (1979) (reporting government defense and indemnification of police officers in Connecticut).
51. Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 686 (1987) (finding no cases in which "an individual official had borne the cost of an adverse constitutional tort judgment"); Jeffries, supra note 17, at 49-50 (asserting that, "[s]o far as can be assessed," governments defend their officers against constitutional tort claims and indemnify them for adverse judgments); Lant B. Davis et al., Project, Suing the Police in Federal Court, 88 YALE L.J. 781, 810-12 (1979) (reporting government defense and indemnification of police officers in Connecticut).
52. For the procedural protections afforded federal employees, see 5 U.S.C. §§ 1101-1105 (1994), which provides merit selection and job security. See generally Richard A. Merrill, Procedures for Adverse Actions Against Federal Employees, 59 VA. L. REV. 196, 211-31 (1973) (describing the history of the federal civil service). For all government workers, including those employed by states and localities, the tradition of civil service is undergirded and reinforced by the requirements of procedural due process. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539 (1985) (holding that public employees who can be discharged only "for cause" under civil service regulations have property rights in their jobs).
53. Don Bellante & Albert N. Link, Are Public Sector Workers More Risk Averse Than Private Sector Workers?, 34 INDUS. & LAB. REL. REV. 408, 411-12 (1981) (reporting empirical results consistent with economic reasoning suggesting that risk-averse workers will be more likely to seek government work); see also SCHUCK, supra note 26, at 57 (opining that civil service employees "probably tend to be more risk-averse with respect to litigation and liability than individuals generally").
54. See Alison L. Patton, Note, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L.J. 753, 800-01 (1993) (arguing that the increased tax burdens resulting from civil liability generate media attention and public concern); cf. Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 961 (1985) (noting the "prioritizing discipline" that the budget process imposes on direct expenditures). The tendency to undervalue off-budget costs is essentially the problem of unfunded mandates. Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113, 1114-17 (1997). On the political penalties for raising taxes, see Jeffries, supra note 17, at 77 n.107.
55. See Alison L. Patton, Note, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L.J. 753, 800-01 (1993) (arguing that the increased tax burdens resulting from civil liability generate media attention and public concern); cf. Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 961 (1985) (noting the "prioritizing discipline" that the budget process imposes on direct expenditures). The tendency to undervalue off-budget costs is essentially the problem of unfunded mandates. Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113, 1114-17 (1997). On the political penalties for raising taxes, see Jeffries, supra note 17, at 77 n.107.
56. See Alison L. Patton, Note, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L.J. 753, 800-01 (1993) (arguing that the increased tax burdens resulting from civil liability generate media attention and public concern); cf. Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 961 (1985) (noting the "prioritizing discipline" that the budget process imposes on direct expenditures). The tendency to undervalue off-budget costs is essentially the problem of unfunded mandates. Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113, 1114-17 (1997). On the political penalties for raising taxes, see Jeffries, supra note 17, at 77 n.107.
57. This observation seems more than plausible to me, but recent literature has shown the need for caution, at least, in tracing the incentive effects of civil liability on government actors. Daryl Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 347-48 (2000) (suggesting that "government cannot be expected to respond to forced financial outflows in any socially desirable, or even predictable way").
58. Jeffries, supra note 17, at 75-77.
59. See, e.g., Wilson v. Layne, 526 U.S. 603 (1999) (holding officers immune from liability for inviting media representatives to accompany them in an arrest in the home, despite the unanimous conclusion of all federal judges who have considered the issue that the media "ride-alongs" violate the Fourth Amendment).
60. E.g. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (discussing "the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties'" (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949))); see also Anderson v. Creighton, 483 U.S. 635, 645-46 (1987) (following Harlow in expansively interpreting qualified immunity).
61. For another formulation of this point, see Jeffries, supra note 17, at 73-74. I explain: To put this point into a practical context, one need only imagine a supervisor instructing police officers (as all police are instructed these days) on the law of the Fourth Amendment. Under the regime of qualified immunity, the instructor would explain the rules of search and seizure and enjoin adherence to them, but would also tell the officers that reasonable mistakes would not be held against them. Now imagine the same situation under a regime of strict liability. The supervisor would instruct her charges not only to be careful about probable cause but also, and more importantly, not to search in any doubtful case. Under strict liability, the supervisor would require a kind of super-probable cause, steering well clear of the constitutional standard in order to avoid liability for inevitable mistakes. In consequence, there would be fewer searches. Id. (footnote omitted).
62. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. ILL. L. REV. 363, 403-04. Slobogin examines the effect of "representativeness" and "availability" on search-and-seizure decisions. "Representativeness" means that judges are likely to associate Fourth Amendment interests with the guilty defendants who come before them in suppression hearings. "Availability" means that judges will rely overmuch on their memory of suppression hearings, all of which (one assumes) involved searches that were successful in uncovering incriminating evidence.
63. See Pennsylvania v. Labron, 518 U.S. 938 (1996) (rejecting a requirement of "exigency" apart from the existence of probable cause and a mobile vehicle); California v. Acevedo, 500 U.S. 565 (1991) (finding that police authority to engage in a warrantless search based on probable cause extends to closed containers within vehicles); New York v. Class, 475 U.S. 106 (1986) (stating that probable cause is not necessary to ascertain a vehicle identification number after a valid traffic stop); United States v. Ross, 456 U.S. 798 (1982) (holding that searches justified under the automobile exception to the warrant requirement can be as thorough as searches authorized by warrants).
64. See, e.g., United States v. Leon, 468 U.S. 897 (1984) (holding that illegally seized evidence is admissible if police had a good faith belief in the validity of a warrant subsequently found to be not supported by probable cause); United States v. Havens, 446 U.S. 620 (1980) (holding that illegally seized evidence is allowed for purposes of impeachment of testimony relating to the crime charged); United States v. Janis, 428 U.S. 433 (1976) (holding that exclusion of illegally seized evidence is not required at an IRS hearing).
65. The two expansions in Fourth Amendment rights in the last thirty years were Payton v. New York, 445 U.S. 573 (1980), which required warrants for arrests in the home, thereby limiting searches incident to such arrests, and Tennessee v. Garner, 471 U.S. 1 (1985), which limited the use of deadly force.
66. This discussion recapitulates John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 95-105 (1999).
67. The standard citation is Linkletter v. Walker, 381 U.S. 618 (1965), which held that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643 (1961), did not apply retroactively to cases that had become final before that decision.
68. Miranda v. Arizona, 384 U.S. 436 (1966), was held nonretroactive in Johnson v. New Jersey, 384 U.S. 719 (1966).
69. See, e.g., Mackey v. United States, 401 U.S. 667, 676-77 (1971) (Harlan, J., concurring in part and dissenting in part) (recognizing that the nonretroactivity doctrine facilitated "long overdue reforms, which otherwise could not be practicably effected" (quoting Jenkins v. Delaware, 395 U.S. 213, 218 (1969))).
70. Jeffries, supra note 49, at 95-96 (describing various techniques for "claiming continuity while embracing innovation").
71. I have observed: [I]t is hard to imagine what our Constitution would be if original understandings had been faithfully maintained without "translation" to changed circumstances. Most likely, we would have had a succession of increasingly prolix organic documents, as heavily amended prior versions became too cumbersome or outdated. Ironically, the reason that we still have some version of the original Constitution and that we can refer (more or less meaningfully) to the intent of the Framers is the document's capacity for internal growth. Id. at 97 (footnote omitted).
72. For an extended speculation on the effect that retrospective damages liability would have had on the law of school desegregation, see id. at 101-03. The analysis focuses on Brown v. Board of Education, 347 U.S. 483 (1954), and especially on Green v. County School Board, 391 U.S. 430 (1968). Green transformed Brown's ruling that government stop requiring segregation into an affirmative command that government act to eliminate segregation. The essay asks "what the Court would have done if announcing an 'affirmative duty' to eliminate racially identifiable schools had meant huge damages judgments against Southern school districts" and concludes that "it seems entirely plausible that Green might have come out differently under a regime of strict liability in money damages." Jeffries, supra note 49, at 103.
73. 427 U.S. 347 (1976).
74. Id at 351 ("It has been the practice of the Sheriff of Cook County, when he assumes office from a Sheriff of a different political party, to replace non-civil-service employees of the Sheriff's Office with members of his own party when the existing employees lack or fail to obtain requisite support from, or fail to affiliate with, that party.").
75. See generally DAVID H. ROSENBLOOM, FEDERAL SERVICE AND THE CONSTITUTION 47-55 (1971) (examining the historical development of the "spoils system").
76. Elrod, 427 U.S. at 353-54 (noting the decline in patronage employment in the wake of the Pendleton Act of 1883).
77. Id. at 356 (noting that as government employment rises, patronage increases the incumbent party's "power to starve political opposition by commanding partisan support, financial and otherwise").
78. E.g., id. at 356-60 (discussing the inconsistency of political patronage with modern free speech decisions).
79. Branti v. Finkel, 445 U.S. 507 (1980).
80. Rutan v. Republican Party, 497 U.S. 62 (1990).
81. O'Hare Truck Serv. v. City of Northlake, 518 U.S. 712 (1996).
82. E.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981) (citing the prospect of increased taxes or reduction of services as a reason for disallowing punitive damages against municipalities).
83. Cf. Elrod, 427 U.S. at 377 (Powell, J., dissenting) ("The named respondents, several discharged employees and another employee threatened with discharge, are all Republicans who concededly were hired by Elrod's predecessor because of their political affiliations.").
84. 425 U.S. 748 (1976).
85. Id. at 771 n.24 (noting "commonsense differences between speech that does 'no more than propose a commercial transaction' and other varieties" (citation omitted)).
86. E.g., United States v. Edge Broad. Co., 509 U.S. 418 (1993) (upholding a federal statute banning lottery advertisements by radio stations in nonlottery states as serving the state's substantial interest in reducing the demand for casino gambling); Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986) (upholding a law prohibiting advertising of casino gambling to residents of Puerto Rico as justified by the same substantial interest); Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980) (articulating a four-part test focusing, inter alia, on "whether the asserted governmental interest is substantial").
87. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down a law prohibiting liquor price advertising); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (striking down a law prohibiting the display of alcohol content on beer labels).
88. 517 U.S. 484.
89. Anderson v. Creighton, 483 U.S. 635, 638 (1987).
90. 424 U.S. 693 (1976).
91. Id. at 701.
92. See, e.g., JOHN C. JEFFRIES, JR. ET AL., CIVIL RIGHTS ACTIONS: ENFORCING THE CONSTITUTION 233-35 (2000) (discussing and referencing various grounds for criticizing Paul).
93. E.g., Henry Paul Monaghan, Of "Liberty" and "Property," 62 CORNELL L. REV. 405, 429 (1977) (describing the Court's response to the staggering array of § 1983 complaints as "understandable, if not acceptable"); Rodney A. Smolla, The Displacement of Federal Due Process Claims by State Tort Remedies: Parratt v. Taylor and Logan v. Zimmerman Brush Co., 1982 U. ILL. L. REV. 831, 836-41 (arguing that permitting Davis's § 1983 claim would have unnecessarily converted a state tort into a constitutional violation).
94. E.g., Henry Paul Monaghan, Of "Liberty" and "Property," 62 CORNELL L. REV. 405, 429 (1977) (describing the Court's response to the staggering array of § 1983 complaints as "understandable, if not acceptable"); Rodney A. Smolla, The Displacement of Federal Due Process Claims by State Tort Remedies: Parratt v. Taylor and Logan v. Zimmerman Brush Co., 1982 U. ILL. L. REV. 831, 836-41 (arguing that permitting Davis's § 1983 claim would have unnecessarily converted a state tort into a constitutional violation).
95. E.g., Melvyn R. Durchslag, Federalism and Constitutional Liberties: Varying the Remedy To Save the Right, 54 N.Y.U. L. REV. 723, 742-48 (1979) (suggesting that qualified immunity might be a more appropriate way of narrowing the scope of constitutional torts while preserving the rights that § 1983 is meant to protect); Monaghan, supra note 76, at 429 (speculating that it might have been better to read § 1983 "less than literally . . . so as not to embrace all the interests" protected by due process); Christina Brooks Whitman, Emphasizing the Constitutional in Constitutional Torts, 72 CHI.-KENT L. REV. 661, 678 (1997) (arguing that an expansion of immunity is preferable to a contraction of rights as a way of controlling the financial burdens on local governments and reducing incentives to sue). For an argument that Paul matters less than it seems, because most of the claims excluded from procedural due process resurface under other constitutional guarantees, see Barbara E. Armacost, Race and Reputation: The Real Legacy of Paul v. Davis, 85 VA. L. REV. 569, 586-617 (1999).
96. E.g., Melvyn R. Durchslag, Federalism and Constitutional Liberties: Varying the Remedy To Save the Right, 54 N.Y.U. L. REV. 723, 742-48 (1979) (suggesting that qualified immunity might be a more appropriate way of narrowing the scope of constitutional torts while preserving the rights that § 1983 is meant to protect); Monaghan, supra note 76, at 429 (speculating that it might have been better to read § 1983 "less than literally . . . so as not to embrace all the interests" protected by due process); Christina Brooks Whitman, Emphasizing the Constitutional in Constitutional Torts, 72 CHI.-KENT L. REV. 661, 678 (1997) (arguing that an expansion of immunity is preferable to a contraction of rights as a way of controlling the financial burdens on local governments and reducing incentives to sue). For an argument that Paul matters less than it seems, because most of the claims excluded from procedural due process resurface under other constitutional guarantees, see Barbara E. Armacost, Race and Reputation: The Real Legacy of Paul v. Davis, 85 VA. L. REV. 569, 586-617 (1999).
97. E.g., Melvyn R. Durchslag, Federalism and Constitutional Liberties: Varying the Remedy To Save the Right, 54 N.Y.U. L. REV. 723, 742-48 (1979) (suggesting that qualified immunity might be a more appropriate way of narrowing the scope of constitutional torts while preserving the rights that § 1983 is meant to protect); Monaghan, supra note 76, at 429 (speculating that it might have been better to read § 1983 "less than literally . . . so as not to embrace all the interests" protected by due process); Christina Brooks Whitman, Emphasizing the Constitutional in Constitutional Torts, 72 CHI.-KENT L. REV. 661, 678 (1997) (arguing that an expansion of immunity is preferable to a contraction of rights as a way of controlling the financial burdens on local governments and reducing incentives to sue). For an argument that Paul matters less than it seems, because most of the claims excluded from procedural due process resurface under other constitutional guarantees, see Barbara E. Armacost, Race and Reputation: The Real Legacy of Paul v. Davis, 85 VA. L. REV. 569, 586-617 (1999).
98. E.g., Melvyn R. Durchslag, Federalism and Constitutional Liberties: Varying the Remedy To Save the Right, 54 N.Y.U. L. REV. 723, 742-48 (1979) (suggesting that qualified immunity might be a more appropriate way of narrowing the scope of constitutional torts while preserving the rights that § 1983 is meant to protect); Monaghan, supra note 76, at 429 (speculating that it might have been better to read § 1983 "less than literally . . . so as not to embrace all the interests" protected by due process); Christina Brooks Whitman, Emphasizing the Constitutional in Constitutional Torts, 72 CHI.-KENT L. REV. 661, 678 (1997) (arguing that an expansion of immunity is preferable to a contraction of rights as a way of controlling the financial burdens on local governments and reducing incentives to sue). For an argument that Paul matters less than it seems, because most of the claims excluded from procedural due process resurface under other constitutional guarantees, see Barbara E. Armacost, Race and Reputation: The Real Legacy of Paul v. Davis, 85 VA. L. REV. 569, 586-617 (1999).
99. For another narrow construction of "liberty" in the context of a § 1983 damages action, see Siegert v. Gilley, 500 U.S. 226, 233-34 (1991), which held that, regardless of motivation, defamation by a government officer is not a constitutional violation. Paul and Siegert are examples of what Daryl Levinson calls "remedial deterrence," which occurs when "the threat of undesirable remedial consequences motivat[es] courts to construct the right in such a way as to avoid those consequences." Levinson, supra note 15, at 884-85.
100. This point is explained in detail in Jeffries, supra note 17, at 55-56, which describes the mental state, if any, required for constitutional violations.
101. Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (holding that due process is not violated by negligent deprivations).
102. E.g., McGhee v. Draper, 564 F.2d 902, 915 (10th Cir. 1977) (affirming a directed verdict for school officials who dismissed a teacher without adequate procedural safeguards because earlier decisions "did not stake out the extent of the procedural rights which we now recognize").
103. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) ("Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.").
104. 523 U.S. 833 (1998).
105. 461 U.S. 95, 105-06 (1983) (holding that a person injured by an unnecessary "choke-hold" had standing to seek damages for his injuries but not, absent proof of likely recurrence or that choking was properly authorized, to seek injunctive relief).
106. The Takings Clause may be an exception. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1779 n.244 (1991) (noting that the Takings Clause "can be read as expressly requiring a damages remedy ('just compensation') when a taking has occurred").
107. See. e.g., Seminole Tribe v. Florida, 517 U.S. 44, 73-76 (1996) (holding that Congress can withhold injunctive relief as well as damages); United States v. Stanley, 483 U.S. 669, 683-84 (1987) (holding that no damages remedy need be provided for injuries inflicted by unconstitutional acts in the military, regardless of the inadequacy of remedial alternatives). For a scholarly exchange on the question of whether constitutional rights must function as a sword as well as a shield, see John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 GEO. L.J. 2513, 2516-17 (1998), which discusses a system of enforcement based on defensive invocation of constitutional rights and officer suits based on private wrongs; and Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 GEO. L.J. 2537, 2551 (1998), which disputes Harrison's "radical" conception and suggests a broader approach to determining when remedies are constitutionally required.
108. See. e.g., Seminole Tribe v. Florida, 517 U.S. 44, 73-76 (1996) (holding that Congress can withhold injunctive relief as well as damages); United States v. Stanley, 483 U.S. 669, 683-84 (1987) (holding that no damages remedy need be provided for injuries inflicted by unconstitutional acts in the military, regardless of the inadequacy of remedial alternatives). For a scholarly exchange on the question of whether constitutional rights must function as a sword as well as a shield, see John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 GEO. L.J. 2513, 2516-17 (1998), which discusses a system of enforcement based on defensive invocation of constitutional rights and
109. See. e.g., Seminole Tribe v. Florida, 517 U.S. 44, 73-76 (1996) (holding that Congress can withhold injunctive relief as well as damages); United States v. Stanley, 483 U.S. 669, 683-84 (1987) (holding that no damages remedy need be provided for injuries inflicted by unconstitutional acts in the military, regardless of the inadequacy of remedial alternatives). For a scholarly exchange on the question of whether constitutional rights must function as a sword as well as a shield, see John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 GEO. L.J. 2513, 2516-17 (1998), which discusses a system of enforcement based on defensive invocation of constitutional rights and officer suits based on private wrongs; and Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 GEO. L.J. 2537, 2551 (1998), which disputes Harrison's "radical" conception and suggests a broader approach to determining when remedies are constitutionally required.
110. 384 U.S. 436 (1966).
111. See Levinson, supra note 15, at 903-04 (arguing that prophylactic rules are ubiquitous because of the necessity that constitutional doctrine be "rule-like" if it is to "have any useful meaning in governing the primary behavior of government"); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 190 (1988) ("'[P]rophylactic' rules are not exceptional measures of questionable legitimacy but are a central and necessary feature of constitutional law.").
112. See generally John C. Jeffries, Jr., Damages for Constitutional Violations: The Relation of Risk to Injury in Constitutional Torts, 75 VA. L. REV. 1461 (1989) (exploring the potential mismatch between the rationales for constitutional rights and the interests vindicated by the award of money damages for their violation).
113. See Heck v. Humphrey, 512 U.S. 477, 487 n.7 (1994) (holding that the compensable injury for illegal search "does not encompass the 'injury' of being convicted and imprisoned" for one's crimes).
114. Compare Jeffries, supra note 89, at 1461 (arguing that money damages for violations of constitutional rights ordinarily should compensate only "constitutionally relevant injuries - that is, injuries within the risks that the constitutional prohibition seeks to avoid"), with Nahmod, supra note 16, at 1011-21 (disputing that view).
115. The exclusionary rule is an example. See United States v. Calandra, 414 U.S. 338, 348 (1974) (describing the exclusionary rule as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved").
116. See Levinson, supra note 15, at 885-87, 899-904 (discussing situations where "the definition of a right may effectively incorporate a remedy, most commonly the equivalent of a prophylactic, preventive injunction" and labeling this phenomenon "remedial incorporation").
117. See OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, REPORT TO THE ATTORNEY GENERAL ON THE SEARCH AND SEIZURE EXCLUSIONARY RULE 45 (1986) (reporting "fewer than three dozen" reported Fourth Amendment cases brought under § 1983 in the previous two decades). Successful damages actions are much more likely when illegal search and seizure leads to ancillary harms, such as gross indignity or destruction of property. E.g., Bonitz v. Fair, 804 F.2d 164, 173 (1st Cir. 1986) (allowing recovery for body cavity searches of female inmates in the presence of male correctional officers).
118. Again, compensable injuries are de minimis if limited to the invasion of privacy against which the Fourth Amendment protects. Compensable injuries would be enormous if they included arrest, trial, and punishment. See Jeffries, supra note 89, at 1474-75 (describing as "peculiar, if not perverse" a regime that would compensate illegally searched individuals for criminal conviction and punishment for crimes they had actually committed).
119. See Patton, supra note 39, at 763-64 (discussing the police "code of silence" as a barrier to § 1983 recovery for excessive force).
120. 367 U.S. 643 (1961).
121. For a representative sample of the voluminous literature, see CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 45 & n.2 (2d ed. 1986), which cites studies reporting few convictions lost due to application of the exclusionary rule; Slobogin, supra note 45, at 365 n.2, which cites sources supportive of exclusion; and id. at 369 n.6, which cites empirical studies of the efficacy of exclusion.
122. See Slobogin, supra note 45, at 375 n.39. Slobogin summarizes the law as follows: [I]llegally seized evidence is not excluded when it is introduced in any of the following manners: (1) in a proceeding other than the criminal trial; (2) against someone whose rights were not violated; (3) for impeachment purposes; (4) when the search was conducted in good-faith reliance on a statute, warrant, or computer printout; or (5) the evidence would inevitably have been discovered anyway or bears only an attenuated connection to the illegality. Id.
123. See. e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 811-16 (1994) (criticizing exclusion and endorsing strict liability in money damages); Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937, 969-80 (1983) (proposing a system of restitution to victims of unlawful searches as an alternative to exclusion of evidence); Slobogin, supra note 45 (criticizing exclusion and endorsing an enforcement regime based on money damages); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881 (1991) (examining the different functions served by the warrant requirement under damages and exclusion enforcement regimes).
124. See. e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 811-16 (1994) (criticizing exclusion and endorsing strict liability in money damages); Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937, 969-80 (1983) (proposing a system of restitution to victims of unlawful searches as an alternative to exclusion of evidence); Slobogin, supra note 45 (criticizing exclusion and endorsing an enforcement regime based on money damages); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881 (1991) (examining the different functions served by the warrant requirement under damages and exclusion enforcement regimes).
125. See. e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 811-16 (1994) (criticizing exclusion and endorsing strict liability in money damages); Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937, 969-80 (1983) (proposing a system of restitution to victims of unlawful searches as an alternative to exclusion of evidence); Slobogin, supra note 45 (criticizing exclusion and endorsing an enforcement regime based on money damages); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881 (1991) (examining the different functions served by the warrant requirement under damages and exclusion enforcement regimes).
126. E.g., Slobogin, supra note 45, at 366 (endorsing exclusion "when police fragrantly abridge Fourth Amendment rights or illegally seize private papers").
127. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) (Cardozo, J.) ("The criminal is to go free because the constable has blundered.").
128. Stuntz, supra note 101, at 909-10 (noting that warrants amount to a "presumptive defense" in subsequent damage actions); id. at 916 (discussing warrants as a cure for the "after-the-fact" bias in suppression hearings).
129. E.g., Surell Brady, Arrests Without Prosecution and the Fourth Amendment, 59 MD. L. REV. 1, 36-49 (2000) (assessing the prevalence and causes of arrests without prosecution); Neil A. Milner, Supreme Court Effectiveness and the Police Organization, 36 LAW & CONTEMP. PROBS. 467, 476-80 (1971) (discussing reasons for making arrests without expectation of successful prosecution).
130. E.g., Surell Brady, Arrests Without Prosecution and the Fourth Amendment, 59 MD. L. REV. 1, 36-49 (2000) (assessing the prevalence and causes of arrests without prosecution); Neil A. Milner, Supreme Court Effectiveness and the Police Organization, 36 LAW & CONTEMP. PROBS. 467, 476-80 (1971) (discussing reasons for making arrests without expectation of successful prosecution).
131. 106. See, e.g., Whren v. United States, 517 U.S. 806 (1996) (upholding the stop of a vehicle as justified by probable cause to believe that a traffic offense had been committed, notwithstanding the officer's subjective intention to uncover drug trafficking).
132. See, e.g., Chicago v. Morales, 527 U.S. 41, 106-07 (1999) (Thomas, J., dissenting) (emphasizing the need to rely on the discretion of police officers to determine whether groups of loiterers include persons who threaten the public peace).
133. Note, The First Amendment Overbreadth Doctrine, 83 HARV. L. REV. 844, 845 (1970) (noting that statutes may be reviewed for overbreadth "without regard to the constitutional status of a particular claimant's conduct").
134. E.g., John C. Jeffries, Jr., Rethinking Prior Restraint, 92 YALE L.J. 409, 422 (1983) (discussing how "[t]he administrative apparatus erected to effect preclearance may screen a range of expression far broader than that which otherwise would be brought to official attention"); see also Vincent Blasi, Toward a Theory of Prior Restraint: The Central Linkage, 66 MINN. L. REV. 11, 22-23 (1981) (detailing disadvantages of licensing systems, including that "the initial decision to disallow speech is made by an administrative officer who specializes in suppression").
135. E.g., John C. Jeffries, Jr., Rethinking Prior Restraint, 92 YALE L.J. 409, 422 (1983) (discussing how "[t]he administrative apparatus erected to effect preclearance may screen a range of expression far broader than that which otherwise would be brought to official attention"); see also Vincent Blasi, Toward a Theory of Prior Restraint: The Central Linkage, 66 MINN. L. REV. 11, 22-23 (1981) (detailing disadvantages of licensing systems, including that "the initial decision to disallow speech is made by an administrative officer who specializes in suppression").
136. Jeffries, supra note 109, at 425 ("A rule of special hostility to administrative preclearance is just another way of saying that determinations under the overbreadth doctrine should take account not only of the substance of the law but also of the structure of its administration.").
137. See, e.g., City of Lakewood v. Plain Dealer Pub'g Co., 486 U.S. 750, 772 (1988) (citing the mayor's uncontrolled discretion as a reason for invalidating an ordinance requiring permits for placement of newspaper vending machines on public property); Saia v. New York, 334 U.S. 558, 560 (1948) (invalidating an ordinance against sound amplification devices because it gave the chief of police unguided discretion to permit or forbid them).
138. Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982) (precluding discovery and trial, notwithstanding allegations of malice, where the officer's misconduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known").
139. 523 U.S. 574 (1998).
140. Id. at 607 (Rehnquist, C.J., dissenting).
141. Id. at 605.
142. Id. at 612 (Scalia, J., dissenting).
143. Id. at 597-601 (detailing procedures available to federal trial judges).
144. After completing this Essay, I had the pleasure of reading an excellent article analyzing First Amendment retaliation claims by public employees in terms broadly consistent with the approach suggested here. See Michael Wells, Section 1983, the First Amendment, and Public Employee Speech: Shaping the Right To Fit the Remedy (and Vice Versa), 35 GA. L. REV. (forthcoming Spring 2001).
145. 424 U.S. 693 (1976).
146. 523 U.S. 833 (1998).
147. Supra note 77 and accompanying text.
148. E.g., Scott Turow, Presumed Guilty: You Think You Know Why the Diallo Cops Were Acquitted. Think Again, WASH. POST, Mar. 5, 2000, at B1 ("In my eight years as an assistant U.S. attorney, police beating cases - prosecutions for a cop's use of excessive force - were the only class of crimes for which our office had a losing record in court.").
149. Id.
150. See, e.g., Jeffries, supra note 17, at 73-74 (defending a general rationale for qualified immunity by reference to the specific example of illegal search and seizure).