It has been surprisingly difficult to extricate constitutional litigation from torts. In this Article I would like to resist once more' the idea that tort doctrines and tort categories provide a useful model for constitutional decision-making. When it comes to deciding the merits of a constitutional claim, torts is a distraction. That is the case whether torts serves as a positive model for the constitutional cause of action or as an alternative to be shunned. As part of this argument, I also question the claim2 that Monroe v. Pape,3 the 1961 case that opened the door for damages relief under 42 U.S.C. § 1983,4 was the source of a new and unprecedented substantive understanding of constitutional rights. The danger posed by focusing on the way in which § 1983 damage actions against state officials, and parallel Bivens-actions against federal officials,5 are like or unlike tort actions is that problems raised by specific remedies will drive thinking about constitutional substance. This has been a recurring source of confusion in the opinions of both the Supreme Court and the lower federal courts, and it ought not be encouraged. Part of the problem is the very effort to distinguish constitutional law from torts. Over twenty years ago, in Paul v. Davis,6 the Supreme Court tried to draw a bright line between the two. The plaintiff in Paul had been branded as an "Active Shoplifter[ ]" in a flyer circulated by defendant local law enforcement authorities.7 The Court held that plaintiff's allegations would not support a constitutional cause of action because they "would appear to state a classical claim for defamation" under state tort law.8 This ruling was not a simple matter of jurisdictional line-drawing or remedial allocation. In Paul, the Court reached the merits of the plaintiff's claim and decided a question of constitutional substance on the basis of a theory defended wholly on the grounds that it maintained the purity of the separate categories, constitution and tort. The Court held that the plaintiff's claimed interest in preserving his reputation from unsubstantiated allegations of criminal conduct was not of constitutional stature because it was an interest that might be vindicated through tort.9 This was not a decision that freed constitutional substance from tort; instead, it was driven by tort. Questions of tort law, although they were addressed very superficially, 10 were essential to the decision of the case because they defined the limits of constitutional protection. Paul was an ominous beginning. Maintaining the line between constitutional law and tort has not been as easy as the Court had hoped. The relationship is complex, particularly when plaintiffs seek damage relief for government misconduct. In constitutional tort actions, courts and Court-observers are still searching for a formula that will make the line clear. Perhaps it should come as no surprise that the attempts have ironic parallels in the efforts to bring coherence to the chaotic field of torts. For example, even when tort principles are not urged as rules of decision for constitutional damage actions," such actions are occasionally treated as if they constituted a closed category of constitutional litigation distinct from other claims of constitutional protection, a category that calls for special substantive, as well as distinctive, remedial rules.12 This effort is reminiscent of the occasional, and perennially unsuccessful, quest to articulate a unified theory of torts.' 3 Although they often draw on concepts developed in torts, these attempts to define a common thread seem, like Paul, to be motivated by a desire to delimit by some talismanic formula what is for torts and what is for constitutional law. Another example: In recent cases the Court has tended to analyze constitutional claims with a rigid adherence to discrete, nonoverlapping categories of constitutional rights. This practice seems to be motivated by the same desire to draw clear lines, but here the lines are drawn among constitutional claims rather than between Constitution and tort. The rigidity of the doctrinal categories most recalls the days of the writ system when it was essential to distinguish firmly between trespass and case. This approach may appeal to the Court because it appears to confine judicial decision-making, and avoids the risk of open-ended liability that seems to be associated by some Justices with the development of negligence. 14 In neither case is constitutional decision making truly independent of the analogy from tort. In what follows, I begin by addressing the claim that Monroe initiated a new category of constitutional substance, focusing in Part I on Monroe itself and in Part II on some of the ways in which the case can be said to have opened the door to new, uniquely tort-like actions. In Part III, I briefly lay out what can and cannot be said in support of the overlap between constitutional law and torts. I address in Part IV the unsatisfactory efforts that have been made to limit the reach of the Constitution in the name of maintaining a line between constitutional cases and ordinary torts. I conclude in Part V with an exploration of liability for mistakes.
Whitman, Christina B. "Emphasizing the Constitutional in Constitutional Torts (Symposium on Section 1983)." Chi. -Kent L. Rev. 72, no. 3 (1997): 661-93.