Constitutional Remedies: Reconciling Official Immunity with the Vindication of Rights

(Excerpt) Part I makes the crucial point that compensation is a tool and not a distinct goal of tort liability. With civil recourse theory as a guidepost, Part II argues that one of the aims of constitutional tort law is vindication of the plaintiffs rights. Civil recourse principles teach that vindication may be at least partly achieved even when immunity blocks compensation. Part III shows how the Court\u27s failure to distinguish vindication from compensation has unnecessarily impeded the vindication of rights. Two important official immunity cases-Camreta v. Greene and Pearson v. Callahan -illustrate the missed opportunities and show how they can be rectified. Part IV explains why courts should award nominal damages and attorney fees to plaintiffs who prevail on the constitutional merits even when defendants escape liability on account of official immunity. Part V expands the analysis beyond the official immunity context. It discusses implications of the vindication-oriented approach for the Bivens cause of action against federal officers for constitutional violations. It also argues that a vindication-centered theory of constitutional torts casts doubt on some of the Court\u27s rulings in § 1983 cases

Constitutional Remedies: Reconciling Official Immunity with the Vindication of Rights

A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, or fired people on account of protected speech, or deprived them of liberty or property without due process of law, or discriminated against them in violation of equal protection. Because these backward-looking suits bear some resemblance to ordinary tort law, the doctrine is often called “constitutional tort.” This Article examines a well-settled and routine — but destructive and quite unnecessary — consequence of the interplay between the liability rule and the official immunity doctrine. Consider two plaintiffs, Alice and Bob, each of whom sues for damages under § 1983. Suppose that both plaintiffs lose, but for different reasons. Alice establishes a violation of her constitutional rights, but fails because the defendant successfully asserts official immunity. Bob cannot show that his rights were violated in the first place. Despite the difference between their cases, current Supreme Court doctrine directs that Alice and Bob be treated the same. Both go away empty-handed. Under the Court’s approach, the competing goals behind liability and immunity are balanced in the following way: On the one hand, the aim of constitutional tort law is to compensate the plaintiff and to deter violations of rights. But on the other side of the balance, official immunity carries enough weight to override the compensation and deterrence goals. Thus, the official’s successful immunity defense carries the same force as a successful defense on the merits. Both result in total victory for the defense.. In this Article, I argue for a different conception of constitutional tort law, in which it is recognized that Alice’s case differs fundamentally from Bob’s. The point is not to question official immunity, a doctrine that has broad support from the Supreme Court. My project is to reconcile official immunity with Alice’s legitimate claim for a remedy

Arbitration and Inalienability: A Critique of the Vindication of Rights Doctrine

This is the published version

Torts, Crimes and Vindication: Whose Wrong is it?

It is sometimes said that tort law provides for the vindication of individual rights — which raises the question of how tort law as thus understood should relate to criminal law, which is sometimes also said to be concerned with the vindication of rights. I discuss the differences between civil and criminal modes of vindication; the ways in which we might nonetheless blur the boundaries between the tort process and the criminal process; and the light that this can throw on the central core of criminal law

Riding the Waiver: \u3cem\u3eIn re American Express Merchants\u27 Litigation\u3c/em\u3e and the Future of the Vindication of Statutory Rights

On February 1, 2012, the U.S. Court of Appeals for the Second Circuit held in In re American Express Merchants’ Litigation that a class action waiver was unenforceable because class litigation was the only economically feasible way for the plaintiffs to vindicate their statutory rights under the Sherman Act. In doing so, the Second Circuit properly balanced the policy underlying the Federal Arbitration Act and the policy favoring the vindication of rights provided by federal statute. This Comment argues that the Second Circuit properly interpreted the vindication of statutory rights analysis in light of U.S. Supreme Court jurisprudence

Killing them with Kindness: Examining Consumer-Friendly Arbitration Clauses after AT&T Mobility v. Concepcion

The article focuses on the U.S. Supreme Court case AT&T Mobility LLC v. Concepcion, in which California\u27s Discover Bank rule was struck by the Court under the Federal Arbitration Act, which was upheld by the California Supreme Court in the court case Discover Bank v. Superior Court. It provides information that the rule is a judge-made rule which depicts that class action waivers are unforceable in arbitration agreements if such agreements are mentioned in standard form consumer contracts