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Document Type

Article

Publication Date

Winter 2021

Publication Citation

96 Indiana Law Journal 571 (2021)

Abstract

Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.

This Article constructs a framework of the constitutional tort system, drawing on contemporary tort scholarship’s rich theorization of a similar set of challenges that emerge in the private law context. By framing constitutional litigation as part of an essentially tort-like system, in which the law seeks to facilitate deterrence and compensation without unduly burdening state action, this Article presents an analytical lens that clarifies, challenges, and transforms the law of constitutional torts.

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