Unpublished Papers

From Compensation to Vindication in Constitutional Tort Law

Michael Wells, University of Georgia School of Law

Abstract

From Compensation to Vindication in Constitutional Tort Law

Michael L. Wells

University of Georgia Law School

Abstract

This article examines some basic normative issues in constitutional tort law: What is the point of litigation seeking damages for violation of one's constitutional rights? Is the primary aim to deter violations by imposing liability on violators? Is it to compensate persons for harm done by constitutional violations? Or is to to vindicate rights by providing access to the courts, so that plaintiffs may demand that wrongdoers be held accountable? Are "vindication" and "compensation" just two ways of stating the same goal, as the Court's rulings seem to suggest? If not, how do they differ and what is the relation between them? This article argues that vindication is not simply a synonym for compensation. Indeed, there is a categorical difference between the two concepts. Compensation is not at all a goal, but merely a means for achieving both vindication and deterrence. In some contexts compensation may be an essential tool for vindicating rights. In others, it may be neither a necessary not a sufficient means of vindication. The main obstacle to this approach is the Supreme Court's holding in Carey v. Piphus (1978). Carey, the leading case on the aims of damage awards in suits brought against state officials under 42 U.S.C. Section 1983, adopted "the compensation principle," which is "that damages are designed to compensate persons injured by the violation of rights," as well as to deter future violations. The article argues that the Court erred in Carey by stressing compensation rather than vindication, and that its error has distorted the evolution of constitutional tort law ever since.

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