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

• Published in: The Yale law journal 2019-04, Vol.128 (6), p.1742-1791
• Main Author: WHITE, HELEN E.
• Format: Article
• Language: English
• Subjects: Black people; Blacks; Civil rights; CONSTITUTIONAL LAW; Constitutional torts; DAMAGES; Damages (Law); Decision making; Demographic aspects; Distributive justice; Economic aspects; Economic conditions; Law and legislation; LAW ENFORCEMENT; LITIGATION; Methods; Race discrimination; Remedies; Social aspects; TORTS; Valuation
• ISSN: 0044-0094; 1939-8611

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 racebased 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 plaintiffs 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 o