The Yale Law Journal

April 2019

Making Black Lives Matter: Properly Valuing the Rights of the Marginalized in Constitutional Torts

RemediesConstitutional LawTorts

abstract. Black lives are systematically undervalued by constitutional enforcement remedies. Section 1983 adopts, wholesale, the damages scheme from torts, which not only permits, but encourages, the consideration of race and gender to calculate actuarially “accurate” damages figures. Given that Blacks earn seventy-five percent of what white men earn on average, it’s no surprise that this results in significantly lower damages awards. This Note argues that the use of race-based actuarial tables in constitutional torts is both unconstitutional and theoretically unsound. Yet, plaintiffs rarely challenge this practice and often even stipulate to its use. This presents a puzzle—why does a bad practice go unchallenged?

Furthermore, the largely unchallenged adoption of race-based actuarial tables is symptomatic of constitutional law’s broader, unquestioned embrace of the corrective justice framework. Corrective justice’s appeal is that it ostensibly allows judges to focus on the narrow task of returning plaintiffs to a prior baseline rather than requiring legislative-type determinations of whether that “baseline” is normatively desirable. But, when the legal dispute turns on a government actor’s violations of a citizen’s constitutional rights, the harms and benefits exchanged between plaintiff and defendant are more complex and indeterminate than between purely private parties. The complicated relationship between parties in constitutional torts makes corrective justice’s determinate inquiry uncertain and unsatisfactory. Indeed, the selection of a prior baseline requires judges to engage in value-laden choices about which harms and benefits—among the innumerable exchanged between citizen and government—are counted toward the plaintiff’s baseline. Thus, this Note reveals that the purported normative neutrality that commends corrective justice in private torts is a mere illusion in the constitutional tort context.

Finally, this Note argues that distributive justice emerges as a viable alternative framework for developing constitutional tort remedies. Under that framework, remedial schemes should be premised on moving toward a more ideal distribution rather than limited to returning plaintiffs to a particular baseline. While distributive justice is often rejected in tort litigation, the framework has much to offer in the constitutional tort context. Yet, much of constitutional law and scholarship has overlooked distributive justice and adopted a narrow, tort-like version of corrective justice—a doubly value-laden choice. This Note demonstrates that selecting between the two frameworks should be a contested question—one that has broader implications for our understanding of constitutional law.

author. Yale Law School, J.D. 2018. I am grateful and indebted to John Witt for his constant encouragement, mentorship, thoughtful feedback, and generous support from the very start. I also owe a great deal of thanks to Daryl Levinson for his guidance on this Note and on writing interesting scholarship. This Note was strengthened considerably by conversations with Guido Calabresi, Issa Kohler-Hausmann, Daniel Markovits, Lincoln Caplan, and Emily Bazelon, and by the thoughtful feedback I received on early versions from Ashraf Ahmed, James Durling, and Bill Powell. I am also grateful for the many people who engaged with me about the ideas in this piece, with particular thanks to Rachel Chung, Christina Ford, Richard Frohlichstein, Ted Lee, Laura Portuondo, Roseanna Sommers, Harrison Stark, and Emily Wanger for their helpful conversations and support as this piece took shape. Additional thanks to Giovanni Sanchez for his thoughtful comments and editorial suggestions, as well as to Christine Smith, Zoe Jacoby, and all the editors of the Yale Law Journal for their careful editing. All arguments and errors in this Note are my own.