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's 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's rulings in § 1983 cases.