Three Models of Constitutional Torts

Journal of Tort Law, Vol. 2, No. 1, 2008

30 Pages Posted: 29 Oct 2008

See all articles by David T. Zaring

David T. Zaring

University of Pennsylvania - Legal Studies Department

Date Written: October 28, 2008


The new prominence of constitutional tort claims like Valerie Plame's and Jose Padilla's calls for a re-examination of the form, a basic, but often overlooked, kind of lawsuit. This essay divides constitutional tort claims into three different types, each with different purposes and different kinds of plaintiffs, and each with different implications for the regulation of government policy. It also makes the case for the continuing, if uneasy, relevance of the form, despite its often belabored, but certainly justified, reputation for hostility towards plaintiffs.

Constitutional torts do not always fail in every way, or in the same ways. To be sure, there are the pro se and quasi-pro se cases that always lose. But there are also the excessive use of force cases that sometimes do not lose. And, increasingly, there are the policy-related strike suits against senior federal officials where liability, in the end, is not the point. After trifurcating the constitutional tort, the paper seeks to explain why it remains interesting, and draws some larger conclusions about the evolution of the Bivens suit, which increasingly looks like a new, albeit problematic, locus of the old impulse towards institutional reform litigation, and an increasingly-resorted-to alternative to lawsuits under the Administrative Procedure Act.

Suggested Citation

Zaring, David T., Three Models of Constitutional Torts (October 28, 2008). Journal of Tort Law, Vol. 2, No. 1, 2008, Available at SSRN:

David T. Zaring (Contact Author)

University of Pennsylvania - Legal Studies Department ( email )

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