Explore the vast range of titles available.

There is no liability rule for constitutional torts. There are, rather, several different liability rules, ranging from absolute immunity at one extreme to absolute liability at the other. The choice among them does not depend, as the proverbial Martian might expect, on the role of money damages in enforcing particular rights. The right being enforced is irrelevant to constitutional tort doctrine. What matters instead is the identity of the defendant or the act she performs. States and state agencies are absolutely immune from damages liability for violations of constitutional rights, no matter how egregious their conduct may be. The same is true for those who perform legislative, judicial, and certain prosecutorial actions. In contrast, local governments are strictly liable for constitutional violations committed pursuant to official policy or custom, even if the right found to have been violated was first recognized after the conduct triggering liability. Most defendants - including federal, state, and local officers - are neither absolutely immune nor strictly liable. Instead, they are protected by qualified immunity, a fault-based standard approximating negligence as to illegality.

Few Supreme Court decisions have been as completely unsurprising as Pearson v Callahan. Pearson overturned Saucier v Katz, which required courts to reach the merits of constitutional tort claims before addressing qualified immunity. Since qualified immunity precludes damages unless defendants violate \"clearly established rights,\" Saucier mandated some merits adjudications incapable of supporting damages judgments in those particular cases, because the rights violated had not been \"clearly established\" at the time of the defendants' actions. Here, Jeffries examines whether the merits of constitutional tort claims should be adjudicated, even when they do not control immediate outcomes, in order to achieve \"clearly established\" rights capable of enforcement in the future.

Now pending before the Supreme Court is the most important church-state issue of our time: whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause. The last time the Court considered school aid, it overruled precedent and upheld a government program providing computers and other instructional materials to parochial schools. In a plurality opinion defending that result, Justice Thomas dismissed as irrelevant the fact that some aid recipients were \"pervasively sectarian. \" That label, said Thomas, had a \"shameful pedigree.\" He traced it to the Blaine Amendment, proposed in 1875, which would have altered the 'Constitution' to ban aid to sectarian institutions. At the time, \"it was an open secret that 'sectarian' was code for 'Catholic.' \" Of course, said Thomas, the word could describe schools of other religions, but the Court \"eliminated this possibility of confusion\" by coining the phrase \"pervasively sectarian\" - a term applicable almost exclusively to Catholic parochial schools. The exclusion of \"pervasively sectarian\" schools from otherwise permissible aid to education was, Thomas concluded, not a neutral interpretation of constitutional command but a doctrine \"born of bigotry.\"

Ever since John Marshall insisted that for every violation of a right, there must be a remedy, American constitutionalists have decried the right-remedy gap in constitutional law. Everyone agrees that victims of constitutional violations should have effective redress. At least as an ideal. The distance between the ideal and the real means that there will always be some shortfall between the aspirations called rights and the mechanism's that are called remedies. Richard Fallon and Daniel Meltzer have recast Marbury v. Madison's apparent promise of effective redress for all constitutional violations as a principle, not an ironclad rule, an ideal in practice not always attained. They rank this ideal below the more absolute requirements of a general structure of constitutional remedies adequate to keep government within the bounds of law.

By imprisoning remedial choice in the methodology of statutory historicism, the Supreme Court has locked out concerns that should matter. In particular, current doctrine awards or withholds money damages without regard to alternative remedies. Instead, damages should be integrated with other means of redress in remedial strategies for particular rights. The argument for differentiating remedial strategies across rights assumes that sometimes less is better. Put differently, the argument assumes that there is, and sometimes should be, a gap between constitutional rights and damages remedies. Under current law, that gap not only exists, but is very large. It results from a requirement of fault, beyond the mere fact of unconstitutionality, on the part of officer defendants sued under sec. 1983. The liability standard is negligence with respect to illegality. Its doctrinal home is qualified immunity, which bars the award of damages for injuries resulting from unconstitutional acts that a reasonable officer could have believed to be lawful. This Essay argues that the law of qualified immunity should be refined and rethought. It not only should differentiate damages from other remedies, but also should differentiate damages among rights. Neither the rationales for, nor the arguments against, qualified immunity apply equally to all constitutional violations. Costs and benefits are distributed unevenly. Much depends on the effectiveness of money damages in redressing particular violations and on the efficacy and availability of other remedies. Current law suppresses such concerns. A better approach would disaggregate constitutional torts and adapt remedial strategies to specific wrongs.

The real role of the Eleventh Amendment is not to bar redress for constitutional violations by states but to force plaintiffs to resort to Section 1983 of the Constitution. A paper analyzes the 11th Amendment and Section 1983 as an integrated package of liability rules for constitutional violations. Taken together, the 11th Amendment and Section 1983 are more nearly coherent than initially appears. Basically, the law of governmental liability for constitutional torts aligns on a requirement of fault. As a deviation from the Section 1983 regime of fault-based liability for constitutional violations is much less important than the literature would suggest. The 11th Amendment purports to establish a rule of no liability, but that is functionally true only where the alternative of Section 1983 is not available.

In Federal Courts as State Reformers, Paul Mishkin surveyed the dangers and difficulties of what he called \"institutional decrees.\" These were injunctions issued by federal courts ordering comprehensive changes in state and local institutions and resulting in pervasive and ongoing judicial supervision. Mishkin ended with a call for restraint and a reminder that the way to achieve desirable political goals - and the only way to do so lastingly - is through the democratic political processes which must remain the core of polity. Structural reform litigation is most likely to succeed when it generates political support, either through legislation or executive action. When it is forthcoming, political support diminishes the objections to public law litigation as a derogation from the democratic process and increases the likelihood that institutional reform will succeed. There is, of course, no guarantee that such support will be forthcoming. As the Prison Litigation Reform Act demonstrates, the opposite reaction is also possible.

As Earl C. Dudley, Jr. retires from the Law School faculty, colleagues reflect on his career and the impact he has had.

As Glen O. Robinson retires from the Law School faculty, colleagues reflect on his career and the impact he has had.