Disaggregating Constitutional Torts

Abstract

In the four decades since Monroe v. Pape, the Supreme Court has crafted a vast body of law on money damages for violations of constitutional rights. This essay argues that Monroe was wrong. The error lay not in the result, which was admirable, but in the attribution of that result to a Reconstruction-era statute applicable indifferently to all rights. Treating the availability of damages as a transsubstantive exercise in statutory interpretation obscures important differences among rights and suppresses clear thinking about remedies. A better strategy would abandon one-size-fits-all and adapt remedies to specific kinds of constitutional violations. The availability of money damages would then depend on an assessment of their role in enforcing particular rights - and especially on the availability of alternative remedies that make damages more or less needful.