UNWARRANTED PRESUMPTIONS:
COMMON LAW, INJURY, AND PRESUMED DAMAGES FOR
CONSTITUTIONAL TORTS
Ruth Sarah Lee∗
ABSTRACT
This article explores the question of whether presumed damages are a good way to
achieve the compensation function of constitutional torts. After the Supreme Court decided
Memphis Community School District v. Stachura, circuit courts have split about whether
presumed damages may be allowed, or are categorically barred.
The circuit split, along with the academic ongoing discussion about whether
constitutional tort plaintiffs are being adequately compensated, warrants a second look at
presumed damages.
This article first delineates the two conflicting interpretations of presumed damages—
compensatory presumed damages, which approximate actual injury that has not been proven in
court, and non-compensatory presumed damages, which approximate the value of the
constitutional right that was violated. A way of harmonizing these concepts, and still
compensating the plaintiff, is proposed: by formulating the constitutional violations themselves
as injuries to the plaintiffs, as courts have done in historic right-to-vote cases.
When a defamation principles are examined alongside constitutional tort principles, it
becomes clear that the reasons that make presumed damages appropriate for defamation are
absent from the constitutional tort cases. Presumed damages are appropriate in defamation cases
because (1) inference of injury, and (2) difficulty of proof. But while defamation cases raise the
empirical problem of the cost of surveying witnesses, constitutional tort cases raise the legal
problem of what values the courts should protect. Furthermore, any conception of constitutional
torts that formulates violations as injuries would not require presumed damages because injuries
are proven when violations are proven (i.e. would fail the difficulty-of-proof test). Any
conception of constitutional torts that does not formulate violations as injuries would not imply
that the plaintiff has actually been injured, given a violation (i.e. would fail the inference-ofinjury test). Presumed damages are, therefore, rendered incompatible with constitutional torts.

∗

Law Clerk to the Hon. Richard Suhrheinrich (6th Cir) 2012-2013; Harvard Law School, JD Candidate 2012.
Many thanks to Professor John CP Goldberg. All errors remain my own. Financial support was generously provided
by a Student Fellowship from the Harvard Law School Project on the Foundations of Private Law.

Electronic copy available at: http://ssrn.com/abstract=2035814

TABLE OF CONTENTS
Abstract ........................................................................................................................................... 1
I.

Introduction ............................................................................................................................. 4

II.

Constitutional Torts .............................................................................................................. 12
A. The Role and Importance of Constitutional Torts ............................................................. 12
B. A Brief History of Constitutional Torts ............................................................................. 13
1.

Source of Law ............................................................................................................. 13

2.

Legislative Intent and Concerns ................................................................................. 14

3.

Historical Trends ........................................................................................................ 15

C. Bivens and Liability for Federal Officers........................................................................... 18
1.

Facts and Outcome of Bivens ..................................................................................... 18

2.

Implications for Constitutional Torts ......................................................................... 19
The Aftermath of Bivens ................................................................................................ 20

D.
1.

Cases Applying Bivens ............................................................................................... 20

2.

Cases Limiting Bivens ................................................................................................ 21

III. Damages Under Constitutional Torts.................................................................................... 23
A. Constitutional Tort Damages Under Carey ....................................................................... 24
1.

Facts and Holding of Carey ........................................................................................ 24

2.

Implications for Constitutional Tort Damages ........................................................... 24

3.

Alternative Approaches to Constitutional Torts ......................................................... 27

B. Constitutional Tort Damages Under Stachura ................................................................... 29
1.

Facts and Holding of Stachura ................................................................................... 29

2.

Implications for Constitutional Tort Damages ........................................................... 32

C. Presumed Damages After Carey and Stachura ................................................................. 33
1.

Allowing Presumed Damages .................................................................................... 33

2.

Refusing Presumed Damages ..................................................................................... 36

IV. Presumed Damages ............................................................................................................... 37
A. Common Law Damages ..................................................................................................... 37
B. Common Law Presumed Damages .................................................................................... 38
C. Limitations on Presumed Damages ................................................................................... 42
D.

V.

The Rationale Behind Presumed Damages .................................................................... 44
1.

Difficulty of Proof ...................................................................................................... 44

2.

Vindication of Reputation .......................................................................................... 46

Presumed Damages as Applied to Constitutional Torts ....................................................... 47
A. Two Theories of Presumed Damages in Constitutional Torts ........................................... 48
2

Electronic copy available at: http://ssrn.com/abstract=2035814

1.

Non-Compensatory Presumed Damages .................................................................... 48

2.

Compensatory Presumed Damages ............................................................................ 49

B. Uniting the Two Interpretations of Presumed Damages .................................................... 51
VI. Presumed Damages: From Defamation to Constitutional Torts ........................................... 52
A. Theories of Presumed Damages Not Based in Common Law ........................................... 53
1.

Special Interests .......................................................................................................... 53

2.

Individual/Societal Interests ....................................................................................... 54

B. Defamation Characteristics and Constitutional Torts ........................................................ 57
1.

Inference of Injury ...................................................................................................... 58

2.

Difficulty of Proof ...................................................................................................... 59

3.

Contrasting Constitutional Torts and Defamation ...................................................... 63

C. Defamation as an Empirical Problem, Constitutional Torts as a Legal Problem .............. 64
D.
VII.

Summary of the Inapplicability of Presumed Damages to Constitutional Torts............ 71
Conclusion ......................................................................................................................... 72

3

I.

INTRODUCTION

One of the most important things about constitutional torts is that they provide a way for
citizens to keep their government officials and employees accountable to them. The right of
action to sue for constitutional torts against a state officer defendant was granted by Congress in
42 U.S C. §1983; the right of action to sue for constitutional torts against a federal officer
defendant was established in Bivens v. Six Unknown amed Federal arcotics Agents.1
Although some of the cases following Bivens seemed to affirm constitutional torts as a viable
avenue for compensation for plaintiffs, courts became increasingly hostile towards Bivens
starting in 1983.2
Damages have been a central issue in constitutional tort jurisprudence. In 1978, the
Supreme Court established some of its most important principles on compensatory damages in
Carey v. Piphus by establishing that “the basic purpose of a section 1983 damages award should
be to compensate persons for injuries caused by the deprivation of constitutional rights” as a
“species of tort liability”.3 Furthermore, in Carey, the Court made it clear that the denial of
procedural due process in and of itself is not sufficient to warrant an award of presumed
damages. 4 In reaching this conclusion, the Court emphasized the differences between the facts
of the case and the factors typically common in common law defamation, where presumed
damages have been allowed.5

1

403 U.S. 388 (1971). Bivens was not a unanimous decision. The outcome was endorsed by a five Justice
majority (Justices Brennan, Douglas, Stewart, White, and Marshall) with one concurring opinion (Justice Harlan)
and three dissents (Justices Burger, Black, and Blackmun).
2
SHELDON H. NAHMOD, MICHAEL L. WELLS & THOMAS A. EATON, CONSTITUTIONAL TORTS 32 (2d ed. 2004).
3
435 U.S. 247, 253 (1978) (citing Imbler v. Pachtman, 424 U.S. 409, 417 (1976)).
4
Id. at 259–64.
5
See id.

4

The Supreme Court did not pull back from its position in a following case, Memphis
Community School District v. Stachura.6 In Stachura, the Supreme Court overturned trial court
presumed damages instructions because the instructions allowed “the jury to award damages
based on its own unguided estimation of the value” of constitutional rights.7 The Court
emphasized that the “instructions plainly authorized. . . two distinct types of ‘compensatory’
damages: one based on respondent’s actual injury according to ordinary tort law standards, and
another based on the ‘value’ of certain rights.”8 The latter type of damages was struck down as
impermissible.9 After Stachura, circuit courts have split about whether presumed damages may
be allowed, or are categorically barred.10
The circuit split—along with ongoing academic discussions about whether constitutional
tort plaintiffs are being adequately compensated11—suggests that a second look at presumed
damages is warranted, especially because presumed damages has been suggested as a means of
bringing “more consistency and equity” to damage awards for constitutional torts that not cause
“substantial measurable pecuniary loss.”12
Presumed damages are compensatory damages that are rewarded without any actual
evidence of injury.13 While some commentators have argued that the Court should not look to
common law as a source of law for constitutional torts and should instead devise distinctive

6

477 U.S. 299 (1986).
Stachura, 477 U.S. at 304–05.
8
Id at 305 (“The damages instructions were divided into three distinct segments: (i) compensatory damages for
harm to respondent, (ii) punitive damages, and (iii) additional ‘compensat[ory]’ damages for violations of
constitutional rights. No sensible juror could read the third of these segments to modify the first.”).
9
Id.
10
See NAHMOD, WELLS & EATON, supra note 2, at 549.
11
See, e.g., Michael L. Wells, Punitive Damages for Constitutional Torts, LA. L. REV. Vol. 56, No. 4 (1996),
pp. 841–872.
12
Comment, Presumed Damages for Fourth Amendment Violations, 129 U. Pa. L. Rev. 192, 193 (1980)
[hereinafter Fourth Amendment Violations].
13
See Dalton v. Meister, 188 N.W.2d 494, cert. denied, 405 U.S. 934 (1971); Belli v. Orlando Daily
ewspapers, Inc., 389 F.2d 579 (5th Cir. 1967). See also David A. Anderson, Reputation, Compensation, and Proof,
25 WM. & MARY L. REV. 747, 748 (1984).
7

5

rules, 14 the Court has always analogized—and limited—constitutional tort damages to damages
in the common law of torts.15
This raises the question of how the common law application of presumed damages—
specifically in defamation cases—translates to the field of constitutional torts. In other words, the
question is whether the reasons that courts find presumed damages to be appropriate remedial
measures in defamation cases are also reasons for courts to award presumed damages in
constitutional torts cases.
The contours of applying presumed damages in constitutional tort cases is further
complicated by some ambiguity in the term ‘presumed damages’ in constitutional jurisprudence.
There are two principal interpretations of ‘presumed damages,’ which I term ‘non-compensatory’
presumed damages and ‘compensatory’ presumed damages.16 The non-compensatory view of
presumed damages is the view that presumed damages are awarded to the plaintiff because a
wrong was inflicted upon him, independent of the amount of actual harm caused to him. The
compensatory view of presumed damages is the view that presumed damages are awarded to the
plaintiff to compensate for the actual harm inflicted upon him, but since that harm cannot be
proven in court, the presumed damages approximate such harm.
Although some older cases concerning the infringement on the plaintiff’s right to vote
seem to support the non-compensatory view of presumed damages,17 the non-compensatory
interpretation of presumed damages has generally been rejected by the Supreme Court.18 The
mere concept of non-compensation—but based on the value of an abstract right—has

14

Michael L. Wells, Constitutional Remedies, Section 1983 and the Common Law, 68 Miss. L. J. 157, 160
(1998).
15
See, e.g., Stachura, 477 U.S. at 304–05; Carey, 435 U.S. 247, 253.
16
See infra Part V.A.
17
See, e.g., ixon v. Herndon, 273 U.S. 536 (1927).
18
See Stachura, 477 U.S. at 304–05.

6

emphatically been rejected by the Supreme Court.19 Compensatory presumed damages remain.
But here, I argue that the compensatory view of presumed damages should not apply to
constitutional torts because of the differences between constitutional torts and defamation.
Today, defamation is the only tort that applies the presumed damages doctrine, making it
an “oddity” of tort law.20 In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,21 the Supreme
Court comments that the “rationale of the common law rules has been the experience and
judgment of history that ‘proof of actual damage will be impossible in a great many cases where,
from the character of the defamatory words and the circumstances of publication, it is all but
certain that serious harm has resulted in fact.’”22
Although presumed damages are conceptually linked to defamation, the current trend is
that even in defamation, presumed damages have been limited in several ways. If the defamatory
statements concern a “matter of public concern,” presumed damages may not be applied in cases
where the defendant is merely negligent, but actual malice must be shown.23 This holding has
been softened somewhat by a subsequent case that held that for statements not concerning a
“matter of public concern,” the First Amendment does not bar presumed damages even without
19

See, e.g., Stachura, 477 U.S. at 304–05.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974). Commentators have also emphasized the uniqueness
of defamation cases for allowing presumed damages:
20

As Justice Powell said in Gertz v. Robert Welch, Inc., the presumed damage rule makes
defamation an oddity of tort law. Trespass law permits presumed damages, for example, but the
modern rule seems to be that the plaintiff may recover only nominal damages unless he proves that
the trespass caused actual harm. The same is true of most constitutional torts. Courts also have
employed something similar to the presumption of harm in cases involving the unconstitutional
denial of the right to vote. The United States Supreme Court, however, has refused to adopt a
general rule presuming harm in civil rights cases. Thus, a plaintiff who is deprived of procedural
due process is entitled only to nominal damages unless he proves that he has suffered actual
injury. In contrast, the presumed damages in defamation cases are not limited to nominal sums,
and awards are often substantial.
Anderson, supra note 13, at 749.
21
472 U.S. 749 (1985).
22
Dun & Bradstreet, Inc., 472 U.S. at 760 (quoting WILLIAM PROSSER, LAW OF TORTS 765 §112 (4th ed.
1978)).
23
See, e.g., Gertz, 418 U.S. at 324.

7

actual malice.24 Courts also have placed some limitations on the amount of flexibility allowed by
jurors in awarding damages.25
The two main driving factors that make presumed damages appropriate in defamation are
(1) inference of injury, given liability, and (2) difficulty of proof. This means that once it is
established that a defendant is liable, it is extremely likely that the plaintiff did suffer some
injury. If the defendant did circulate defamatory material, it is likely that individuals read it and
that their perception of the plaintiff was influenced as a result. Furthermore, this injury is
difficult to prove in court, because it would involve finding a large number of unidentified
individuals—who read the defamatory material—and asking them whether they were deterred
from associating with the plaintiff as a result. This would be an unreasonably onerous burden on
the plaintiff. Therefore, presumed damages are appropriate in defamation cases.
This article examines how these principles apply to constitutional torts. It has been
suggested that in 1983 actions, the “magnitude of damages may not easily be demonstrated… as
is clear from Stachura and its common law predecessors,”26 but there are some key differences
between defamation and constitutional torts.
If a defamation plaintiff had unlimited money and time, he could hypothetically track
down everyone who had read the defamatory material, and ask them whether or not the
defamatory material deterred them from associating with him or otherwise affected them. But
because this would cost the plaintiff too much time and money, presumed damages allow the
jury to estimate the amount of actual harm that is presumed to exist.

24

Dun & Bradstreet Inc., v. Greenmoss Builders, Inc., 472 U.S. 749, 757–761 (1985).
See, e.g., RODNEY A. SMOLLA, LAW OF DEFAMATION § 9:17 (2d ed. 2011).
26
Stephen Andrew Hess, Presumed Damages and Constitutional Interests Under Section 1983, 58 U. COLO. L.
REV. 293, 302 (1987) noting, as an example, that Stachura expressly recognized and approved cases that permitted
substantial presumed damages for voting right violations).
25

8

In contrast, in constitutional torts, the problem is not one of time and money. Recall that
the first rationale for presumed damages in defamation is whether injury can be inferred from
liability. As it turns out, whether or not injury can be inferred in constitutional torts depends on
our legal conception of a violation of a constitutional right, and whether that in itself is an injury.
Unlike in defamation, this is not a problem of time and money, it is a legal problem. Possibly
because of this difference, the Carey court categorically differentiated constitutional torts from
defamation by holding that “neither the likelihood of such injury nor the difficulty of proving it
is so great as to justify awarding compensatory damages without proof such injury actually was
caused.”27
If, in the course of the constitutional tort, the defendant inflicted any actual physical,
mental, emotional, or property harm to the plaintiff, the plaintiff can prove these damages in the
common tort way—by proving them in court with testimony or affidavits.28 Therefore, the only
remaining cases where presumed damages may be useful are in cases where the defendant was
liable for violating the plaintiff’s constitutional right, but where the plaintiff has no additional
physical, mental, emotional, or property injury—whether presumed damages should be
appropriate in those cases.
Unlike in the defamation case, these cases do not present a question of cost—even with
unlimited money and time, the plaintiff could not depose witnesses in order to prove actual harm.
Instead, presumed damages are supposed to do the work of compensating the plaintiff for some
kinds of actual harm that cannot be proven empirically through testimony or affidavits. The most
27

Carey, 435 U.S. at 264.
Id. at 263–64 (“Finally, we foresee no particular difficulty in producing evidence that mental and emotional
distress actually was caused by the denial of procedural due process itself. Distress is a personal injury familiar to
the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff. In
sum, then, although mental and emotional distress caused by the denial of procedural due process itself is
compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so
great as to justify awarding compensatory damages without proof that such injury actually was caused.”).
28

9

common way to characterize such a harm is by calling it the harm inherent in a constitutional
violation—the harm that arises from the existence of the wrong itself.
But this catapults us away from the empirical cost problem of proving defamation
damages to a legal conceptual problem of whether the violation of the constitutional right in
itself is a compensable actual harm. The Court in Carey ruled that it is not in procedural due
process cases.29 However, others have argued that at least for some constitutional torts, the
violation itself should be thought of as injury to the plaintiff. For example, special interest theory
suggests that substantive constitutional rights create special interests beyond those of normal
common law torts.30 Others have argued that consideration should be given to whether the right
being violated protects “individual interests” rather than “societal interests.”31 But both of these
arguments are not really arguments for presumed damages; instead, they are arguments that
formulate the definition of injury in such a way that by proving the violation, the plaintiff has
automatically proven the injury. But where the injury is proven, damages need not be presumed.
It may be within federal court jurisdiction to rule that the violation of a constitutional
right itself is an injury. This is ostensibly what happened in the right-to-vote cases. However, this
would not be an example of presumed damages because in such a case, because by proving the

29

Id. at 266 (“By making the deprivation of such rights actionable for nominal damages without proof of actual
injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the
same time, it remains true to the principle that substantial damages should be awarded only to compensate actual
injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.”).
30
See, e.g., Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985); Davis v.
Village Park II Realty Co., 578 F.2d 461 (2d Cir. 1978). For an explanation of how these cases discuss the special
interests associated with substantive constitutional rights, see infra Part VI.A.
31
See Hess, supra note 26, at 302 (“Therefore, just as it is necessary to distinguish instrumental from
substantive rights, it is also necessary to distinguish societal from individual rights. As a practical matter, the rules
concerning standing serve as an important filter to preclude plaintiffs from recovering individually for harm to
societal interests. Although rules governing standing and rules governing the compensability of deprivations under
section 1983 rise out of different concerns, they are related insofar as each focuses on the existence of some
cognizable injury to the plaintiff, which in turn determines the elements of damages one may plead or the grounds
upon which one may base standing.”).

10

violation, the plaintiff has proven the injury. Therefore, presumed damages has no place in
constitutional torts.
In other words, courts looking to common law doctrines in constitutional tort cases
cannot therefore be justified in allowing presumed damages, because the plaintiff faces entirely
different problems in constitutional torts that he does in defamation; in the latter, an empirical
burden, in the former, a legal burden. Rather than asking whether a constitutional tort plaintiff
can prove actual harm in a case is to ask whether a constitutional violation can be characterized
to satisfy the two principles used in defamation: inference of harm and difficulty of proof. For
the reasons discussed above, the answer to this question can be answered by determining
whether a constitutional violation itself should be characterized as an injury.
With respect to public policy, we should consider whether there is a large number of
constitutional tort plaintiffs who do not suffer provable bodily, mental, emotional or property
damage, but need to resort to presumed damages in order to collect damages at all. If there are a
large number of these plaintiffs, the next question is whether the legal system in society desires
to compensate any or all of them. If we do, then the question is whether Congress or the courts
should be addressing the problem. If we take Justice Harlan’s concurring opinion in Bivens
seriously,32 then courts do have the authority to “award damages for violation of ‘constitutionally
protected interests’”.33 Then we can conceptualize these constitutional violations as injuries to
the plaintiffs, and they may be compensated without the burden of proving injury.34

32

Bivens, 403 U.S. at 399.
Id.
34
This is a somewhat backwards approach, because it defines actual harm based on whether or not we want the
plaintiff to be compensated, but conforms with much of defamation law. In defamation, plaintiffs find it difficult to
prove their cases, but we have determined that at least some of their cases are meritorious and should not be
categorically precluded. Therefore, we allowed presumed damages. If we decide that the constitutional tort cases are
meritorious, then presumed damages may be necessary, but only if there is no other recourse for proving damages.
33

11

This approach does not imply that presumed damages are appropriate for constitutional
torts. The specific reasons why defamation allows presumed damages are not applicable to
constitutional torts, unless we characterize constitutional violations as injuries. But if we do, then
presumed damages are not useful because by proving the violation, the plaintiff necessarily
proves the injury. Where the injury is proven, damages need not be presumed.
Figure 1. Presumed Damages Are ot Appropriate for Constitutional Torts, Regardless of
Whether or ot Constitutional Violations are Compensable Wrongs
Constitutional
Violation
Is not a
compensable
injury

Is a compensable
injury

Systematically, there
is no evidence that
every constitutional
violation is
accompanied by
extrinsic, unproveable
injury

By proving the
violation, plaintiff
has automatically
proven the injury

Fails the
Difficulty-ofProof Test

II.

Fails the
Inference-ofHarm Test

CONSTITUTIONAL TORTS

A. The Role and Importance of Constitutional Torts
Tens of thousands of constitutional tort suits are filed every year in federal courts.35
These suits are of considerable significance, both practical and theoretical. They often represent

35

See generally Eisenberg and Schwab, The Reality of Constitutional Tort Litigation, 72 CORN. L. REV. 641
(1987).

12

large sums of money—augmented by potential attorney’s fees to prevailing plaintiffs—and force
courts to grapple with, inter alia, issues of employment,36 police misconduct,37 the treatment of
prisoners,38 and racial discrimination.39 Other typical lawsuits concern “false arrest… malicious
prosecution, wrongful confinement, illegal searches and seizures, retaliation for speech that
displeases officials, arbitrary interference with property rights, …, and restrictions on the speech
of public employees and students.”40
The importance of constitutional torts may often transcend the aggregation of burdens for
each individual plaintiff because they deal with the way the government treats its citizens. The
importance of constitutional torts derives from the way that they are, at heart, endeavors by
citizens to keep their government and its officials and employees accountable to them.41
B. A Brief History of Constitutional Torts
1. Source of Law
Litigants may frame their grievances as breaches of the Constitution and sue for damages
under 42 U.S. C. §1983 when the defendant is a state officer. If the defendant is a federal officer,

36

See, e.g., Stachura, 477 U.S. at 299 (1986) (Plaintiff is a tenured public school teacher ,who was suspended
with pay for allegedly showing sexually explicit pictures in class, suing for deprivation of both liberty and property
without due process of law, and also violation of his First Amendment rights).
37
See, e.g., Monroe v. Pape, 365 U.S. 167 (1961) (“The complaint alleges that 13 Chicago police officers broke
into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and
ransacked every room, emptying drawers and ripping mattress covers. It further alleges that Mr. Monroe was then
taken to the police station and detained on ‘open’ charges for 10 hours, while he was interrogated about a two-dayold murder, that he was not taken before a magistrate, though one was accessible, that he was not permitted to call
his family or attorney, that he was subsequently released without criminal charges being preferred against him.”).
38
See, e.g., Smith v. Wade, 461 U.S. 30 (1983) (Defendant is a guard at a unit of the Missouri Division of
Corrections for youthful first offenders, sued by an inmate for violating his Eighth Amendment rights).
39
See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (“In this action… it is admitted that
the Eagle Coffee Shoppe, Inc., a restaurant located within an off-street automobile parking building in Wilmington,
Delaware, has refused to serve appellant food or drink solely because he is a Negro. The parking building is owned
and operated by the Wilmington Parking Authority, an agency of the State of Delaware, and the restaurant is the
Authority’s lessee.”).
40
Michael L. Wells, Civil Recourse, Damages-as-Redress, and Constitutional Torts (draft) (on file with
author).
41
Congress created constitutional torts as a section titled “An Act to enforce the Provisions of the Fourteenth
Amendment to the Constitution of the United States, and for other Purposes.” 17 Stat 13 (1871). The purpose of the
act was to enforce the Constitution.

13

litigants may sue under federal common law established in Bivens v. Six Unknown amed
Federal arcotics Agents.42 42 U.S.C. §1983 reads as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.43
2. Legislative Intent and Concerns
The purpose of the section “was to interpose the federal courts between the States and the
people, as guardians of the people’s federal rights—to protect the people from unconstitutional
action under color of state law, whether that action be executive, legislative, or judicial.”44 The
section was designed for the dual purposes of “prevent[ing] the states from violating the
Fourteenth Amendment and certain federal statutes and [ ] compensate[ing] injured plaintiffs for
deprivations of their federal rights.”45
Because the Constitution “stands as the final barrier between government power and
individual liberty,” Section 1983’s role in deterring constitutional violations “is an especially
valued goal.”46 On the other hand, the “Court has exhibited a policy preference to avoid what it
perceives to be an excessive burdening of governmental conduct, both financially and

42

403 U.S. 388 (1971).
Congress also confered original jurisdiction for these suits to federal district courts in 28 U.S.C.
§1343(3)(a)(3), (b).
44
NAHMOD, WELLS & EATON, supra note 2, at 3 (citing Mitchum v. Foster, 407 U.S. 225, 238–39, 242 (1972)).
45
Id. (citing Carey v. Piphus, 435 U.S. 247 (1978)).
46
Thomas A. Eaton, Causation in Constitutional Torts, 67 IOWA L. REV. 443, 444 (1982).
43

14

otherwise.”47 This excessive burdening includes the price of over-deterring governmental bodies
and officials from efficiently pursuing their duties out of uncertainty or fear of monetary
punishment, as well as federalism concerns. As “Constitutional torts necessarily affect the
interplay between federal power and state prerogatives,” the Court “is reluctant to displace
traditional prerogatives of state sovereignty.”48
3. Historical Trends
Although Section 1983 was enacted in year 1871, the landmark decision bringing
constitutional torts to the foreground was not decided until 1961 in Monroe v. Pape.49 The
ninety-year delay has been attributed to “the restrictive application of the state action doctrine,”
“the narrow reading of the Fourteenth Amendment’s privileges and immunities clause and
section 1983’s jurisdictional counterpart,” and “the Supreme Court’s initial refusal to incorporate
completely the provisions of the Bill of Rights.”50 Monroe warrants examination as not only the
landmark decision for constitutional torts, but also because the opinion in Monroe offered the
Supreme Court’s interpretation of the legislative intent behind the Section 1983.51
The plaintiff in Monroe v. Pape alleged, among other things, that Chicago police officers
broke into his home, ransacked his rooms, roused him from bed, and detained him at the police
station for ten hours. They had no search warrant and no arrest warrant, and they acted “under
the color of the statutes, ordinances, regulations, customs and usages” of Illinois law.52 He sued

47

Id. at 444–45.
Id. at 445.
49
See generally Monroe, 365 U.S. at 167.
50
NAHMOD, WELLS & EATON, supra note 2, at 4 (“Although section 1983 was enacted in 1871, it was largely
dormant for ninety years for various reasons.”).
51
Monroe was partially overruled by Monell v. Dep’t of Soc. Serv. of City of .Y., 436 U.S. 658, 695–701
(1978), but only on the issue of whether municipalities and other local government units are included among those
“persons” to whom the Civil Rights Act of 1871 applies. Monroe had held that they were not included, but Monell
reversed this.
52
Monroe, 365 U.S. at 169.
48

15

the City of Chicago, as well as individual officers. Justice Douglas delivered the opinion of the
court:
There can be no doubt… that Congress has the power to enforce provisions of the
Fourteenth Amendment against those who carry a badge of authority of a State
and represent it in some capacity, whether they act in accordance with their
authority or misuse it. The question with which we now deal is the narrower one
of whether Congress, in enacting [the Section], meant to give a remedy to parties
deprived of constitutional rights, privileges and immunities by an official’s abuse
of his position. We conclude that it did so intend.53
Examining legislative history, Justice Douglas articulates the “three main aims” of the section,
which he supports almost entirely based upon examining oppositional arguments made in the
adoption of the Section.54 First, the Section “might, of course, override certain kinds of state
laws.”55 Second, “it provided a remedy where state law was inadequate.”56 The third aim was “to
provide a federal remedy where the state remedy, though adequate in theory, was not available in
practice.”57 As a response to the political climate at the time it was passed, the purpose of the
Section was to solve a federalism problem:
It is abundantly clear that one reason the legislation was passed was to afford a
federal right in federal courts because, by reason of prejudice, passion, neglect,
intolerance or otherwise, state laws might not be enforced and the claims of
citizens to the enjoyment of rights, privileges, and immunities guaranteed by the
Fourteenth Amendment might be denied by the state agencies.58

53

Id. at 171–72.
Id. at 173.
55
Id. (“Mr. Sloss of Alabama, in opposition, spoke of that object and emphasized that it was irrelevant because
there were no such laws: ‘The first section of this bill prohibits any invidious legislation by States against the rights
or privileges of citizens of the United States. The object of this section is not very clear, as it is not pretended by its
advocates on this floor that any State has passed any laws endangering the rights or privileges of the colored
people.’”).
56
Monroe, 365 U.S. at 173–74 (“That aspect of the legislation was summed up as follows by Senator Sherman
of Ohio: ‘… it is said the reason is that any offense may be committed upon a negro by a white man, and a negro
cannot testify in any case against a white man, so that the only way by which any conviction can be had in Kentucky
in those cases is in the United States courts, because the United States courts enforce the United States laws by
which negroes may testify.”).
57
Id. at 174 (“It was precisely that breadth of the remedy which the opposition emphasized.”).
58
Id. at 180.
54

16

Furthermore, Monroe establishes that even where there is a state remedy, the plaintiff does not
need to exhaust it: “[i]t is no answer that the State has a law which if enforced would give relief.
The federal remedy is supplementary to the state remedy, and the latter need not be first sought
and refused before the federal one is invoked.”59
Consistent with this reasoning, the Court in Monroe reversed the lower court’s dismissal
of Monroe’s suit against the state officials. However, it affirmed the dismissal of the suit against
the City of Chicago to be properly made because “Congress did not undertake to bring municipal
corporations within the ambit of” the Section.60 This part of the opinion—excluding
municipalities and cities from liability—was later reversed.61
Monroe also establishes that there is no specific intent requirement, and that the “specific
intent to deprive a person of a federal right” should not be imputed into a reading of the Section
because the word “willfully” “does not appear” in the text.62 Instead, the Section should be
interpreted against “a background of tort liability” that “makes a man responsible for the natural
consequences of his actions”.63 Commentators have noted that “the characterization
‘constitutional tort’ appears to give prominence to the noun ‘tort’ and to make the adjective
‘constitutional’ secondary.”64

59

Id. at 183.
Monroe, 365 U.S. at 187–88 (examining legislative history, the Court notes that “[w]hen the bill that became
the Act of April 20, 1981, was being debated in the Senate, Senator Sherman of Ohio proposed an amendment
which would have made ‘the inhabitants of the county, city, or parish” in which certain acts of violence occurred
liable ‘to pay full compensation’ to the person damaged or his widow or legal representation. The amendment was
adopted by the Senate. The House, however, rejected it. The Conference Committee reported another version. The
House rejected the Conference report… The objection to the Sherman amendment… was that ‘the House had
solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county
and town organizations, the mere instrumentality for the administration of state law.”).
61
See Monell, 436 U.S. at 695–701.
62
Monroe, 365 U.S. at 187. This differentiates the Monroe reading of constitutional torts from defamation law,
where actual malice or mere negligence makes a difference in the outcome of the cases. See infra Part IV.C.
63
Id.
64
NAHMOD, WELLS & EATON, supra note 2, at 19. See also Marshall S. Shapo, Constitutional Tort: Monroe v.
Pape and the Frontiers Beyond, 60 NW. U. L. REV. 277, 324 (1965) (“It is not quite a private tort, yet contains tort
60

17

C. Bivens and Liability for Federal Officers
1. Facts and Outcome of Bivens
A Section 1983 remedy is not available when a federal—rather than state—officer
violates a person’s Fourth Amendment rights, because the text of the statute addresses “[e]very
person who under color of statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia,” but does not address persons acting under color of federal
law. However, in Bivens v. Six Unknown amed Agents, the Court held that violation of the
Fourth Amendment “by federal agent acting under color of his authority gives rise to a cause of
action for damages consequent upon his unconstitutional conduct.”65
The petitioner in Bivens alleged that agents of the Federal Bureau of Narcotics acting
under claim of federal authority “entered his apartment and arrested him”, “manacled” him in
front of his family, “searched the apartment”, and had him “interrogated, booked, and subjected
to a visual strip search.”66 The Court decided “that damages may be obtained for injuries
consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a
surprising proposition. Historically, damages have been regarded as the ordinary remedy for an
invasion of personal interests in liberty.”67 The Court also notes that the “present case involves
no special factors counseling hesitation in the absence of affirmative action by Congress.”68

elements; it is not ‘constitutional law,’ but employs a constitutional test. Because of this interesting amalgam,
serious questions arise about the measurement of the substantive right.”).
65
Bivens v. Six Unknown amed Agents, 403 U.S. 388, 389 (1971).
66
Id. at 389.
67
Id. at 395.
68
Id. at 396–97 (Special factors include questions of federal fiscal policy and liability for actions contrary to no
constitutional prohibition, but merely said to be in excess of the authority delegated to him by the Congress).

18

Taking Congress’s silence as consistent with the decision to award damages,69 the Court allowed
recovery.70
It is possible that the Court was motivated in part by the defendant’s litigation strategy—
it was “the policy of the Department of Justice to remove all [similar] suits from the state to the
federal courts for decision.”71 Then, in federal court, the Department of Justice would argue that
the plaintiff may obtain money damages “only in an action in tort, under state law, in the state
courts.”72
2. Implications for Constitutional Torts
The Bivens majority opinion stands for the entitlement of the plaintiff “if he can
demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment
rights” to “redress his injury through a particular remedial mechanism normally available in the
federal courts.”73 The Court uses the language of common law torts in the constitutional tort
setting, seemingly applying common law principles and standards of proof.
The concurrence in Bivens is of particular noteworthiness as well. Justice Harlan
concurred with the majority, emphasizing that “federal courts do have the power to award
damages for violation of ‘constitutionally protected interests’.”74 In his stronger view of federal
court power, he notes that “damages as a traditional form of compensation for invasion of a
legally protected interest may be entirely appropriate even if no substantial deterrent effects on
future official lawlessness might be thought to result.”75 Seeing the role of the Court to “stand

69

Bivens, 403 U.S at 397 (“For we have here no explicit congressional declaration that persons injured by a
federal officer’s violation of the Fourth Amendment may not recover money damages from the agents, but must
instead be remitted to another remedy, equally effective in the view of Congress.”).
70
Id. at 389.
71
Id. at 391.
72
Id.
73
Bivens, 403 U.S. at 397.
74
Id. at 399.
75
Id. at 408.

19

ready to afford a remedy” in cases of constitutional right violations, Harlan was not concerned by
the prospect of litigation flooding the court system.76
Bivens had three separate dissenting opinions. Chief Justice Burger dissented, accusing
the majority of “creat[ing] a damage remedy not provided for by the Constitution and not
enacted by Congress.”77
Justice Black also dissented, arguing that while there “can be no doubt that Congress
could create a federal cause of action for damages for an unreasonable search in violation of the
Fourth Amendment,” and while it has “created such a federal cause of action against state
officials,” it had not created “such a cause of action against federal officers.”78 He cited the text
of Section 1983.79 Justice Black also expressed concern over the caseload that such lawsuits
would bring to the court system.
Justice Blackmun, in his dissent, echoed Justice Black’s fear of an “avalanche of new
federal cases.”80 He also noted the availability of alternative remedies: “I had thought that for the
truly aggrieved person other quite adequate remedies have always been available. If not, it is the
Congress and not this Court that should act.”81
D. The Aftermath of Bivens
1. Cases Applying Bivens
For the next decade, courts began applying the Bivens jurisprudence in more
constitutional violation cases. For example, the Supreme Court ruled that an award of Bivens
damages was appropriate in Davis v. Passman,82 a case that arose eight years after Bivens. In
76

Id.
Bivens, 403 U.S. at 411.
78
Id. at 427.
79
Id.
80
Id.
81
Bivens, 403 U.S. at 427.
82
442 U.S. 228 (1979).
77

20

Davis, the plaintiff was a female employee of Congressman Otto Passman, who sued
Congressman Passman for violating her constitutional right to be free from gender discrimination
when she was fired from her job. The Court found that there were no “special concerns
counseling hesitation” and that the Congressman’s words did not constitute protected speech.83
The Court also addressed the “avalanche of new federal cases” concern expressed in Justices
Black and Blackmun’s Bivens dissents by insisting that a damages remedy would not mean that
the court would become deluged with claims.84 The Court also quoted Bivens in noting that
“[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal
interests in liberty.”85 This solidified the Bivens interpretation of constitutional torts.
In the following year, the Supreme Court allowed a damages remedy for an Eighth
Amendment action against federal prison officials in Carlson v. Green.86 The Court ruled that the
Bivens remedy was available even though the allegations could also support a lawsuit against the
United States under the Federal Tort Claims Act.87 The Court found that there were “no special
factors counseling hesitation”, no explicit declaration against recovery by Congress, and nothing
in the legislative history to indicate an intent to preclude recovery.88 The Court also considered
other factors, such as deterrence and differences between Bivens and the FTCA remedy, but
decided to allow recovery.89 Cases like Passman and Carlson served to solidify Bivens’ place in
federal jurisprudence.
2.

Cases Limiting Bivens

83

Id. at 245–49.
Id.
85
Id. at 245 (citing Bivens, 403 U.S. at 395).
86
446 U.S. 14 (1980).
87
Id. at 18–23.
88
Id. at 18–20.
89
Carlson, 446 U.S. at 21–23 (“First, the Bivens remedy… serves a deterrent purpose… Second, our
decisions… indicate that punitive damages may be awarded in a Bivens suit… Third, a plaintiff cannot opt for a jury
in an FTCA action… Fourth, an action under FTCA exists only if the State in which the alleged misconduct
occurred would permit a cause of action for that misconduct to go forward.”).
84

21

However, the “tide began to turn” against Bivens in 1983.90 In Chappell v. Wallace, the
Supreme Court unanimously ruled that enlisted military personnel could not maintain a suit to
recover damages from a superior officer for alleged constitutional violations.91 The Court
highlighted the “special concerns counseling hesitation” language from Bivens, and decided that
special status of the military qualified as a special concern.92 Although the Court could have
limited the Chappell ruling to constitutional tort cases relating to the military and preserved a
stronger view of Bivens, subsequent cases demonstrated no such intention.93
The Court continued to chip away at Bivens in the following years. In the First
Amendment case Bush v. Lucas,94 the Court held that because the petitioner’s claims arose from
an employment relationship governed by “comprehensive procedural and substantive provisions
giving meaningful remedies against the United States”, this constituted a special concern
counseling hesitation, and consequently denied a damages remedy.95 However, the Court still
emphasizes its own power to “grant relief not expressly authorized by Congress” and its
authority “to choose among available judicial remedies in order to vindicate constitutional
rights.”96
The Supreme Court continued to limit Bivens and extend Bush v. Lucas in a 1988 Social
Security case.97 The plaintiffs in Schweiker sued for the improper denial of Social Security
disability benefits, allegedly resulting from due process violations by administrators of a
90

NAHMOD, WELLS & EATON, supra note 2, at 32.
462 U.S. 296 (1983).
92
Id. at 300 (“The need for special regulations in relation to military discipline, and the consequent need and
justification for a special and exclusive system of military justice, is too obvious to require extensive discussion; no
military organization can function without strict discipline and regulation that would be unacceptable in a civilian
setting.”).
93
See, e.g., NAHMOD, WELLS & EATON, supra note 2, at 32 (“Significantly, even though Chappell’s refusal to
extend Bivens could have been limited to the special situation of the military, it quickly became clear that this would
not be the case.”).
94
462 U.S. 367 (1983).
95
Bush, 462 U.S. at 368.
96
Id. at 374.
97
See generally Schweiker v. Chilicky, 487 U.S. 412 (1988).
91

22

“continuing disability review” (CDR) program.98 The Court noted that the “administrative
structure and procedures of the Social Security system, which affects virtually every American,
‘are of a size and extent difficult to comprehend.’”99 Setting aside the language in Monroe
allowing for recovery even with the existence of alternative means of relief, the Court
emphasized that for the plaintiffs, Congress had “not failed to provide meaningful safeguards or
remedies for the rights of persons situated as respondents were.”100
Thus, the Court ruled that it could “not reasonably be distinguished from Bush v.
Lucas.”101 Considering the way the Court has expanded special concerns counseling hesitation in
awarding damages, it is difficult to envision any case that could be reasonably distinguished
from Bush v. Lucas and its progeny going forward, and the enduring viability of constitutional
torts has become unclear.
III.

DAMAGES UNDER CONSTITUTIONAL TORTS

Under common law, the typical remedy for torts is an award of damages paid to the
plaintiff to make him whole for the harm caused by the defendant. Punitive damages are
sometimes awarded if the behavior of the defendant is especially egregious. Damages may be a
means for assigning losses to the most deserving party while deterring undesirable behavior
(“loss allocation”), but also as “a means for empowering individuals to seek redress against those
who have wronged them” (“civil recourse”).102 An interesting question is “whether and to what
extent the principles of damages developed in ordinary tort law ought to govern recovery for
constitutional wrongs as well.”103
98

Id. at 414–18.
Id. at 424 (quoting Richardson v. Perales, 402 U.S. 389 (1971)).
100
Id. at 425.
101
Schweiker, 487 U.S. at 425.
102
Jason M. Solomon, Equal Accountability Through Tort Law, 103 NW. U. L. REV. 1765, 1770 (2009). See
also John C. P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917, 919 (2010).
103
NAHMOD, WELLS & EATON, supra note 2, at 527.
99

23

Constitutional Tort Damages Under Carey

A.

1. Facts and Holding of Carey
In 1978, the Supreme Court established some of its most important principles about
compensatory damages in Carey v. Piphus by establishing that “the basic purpose of a section
1983 damages award should be to compensate persons for injuries caused by the deprivation of
constitutional rights” as “a species of tort liability”.104 In Carey, public school students brought
an action against school officials under 42 U.S.C. § 1983 when they were suspended from
school, and it was established that the suspension was enforced without procedural due
process.105
However, because the plaintiffs did not prove actual injury—that is, they did not prove
that had their procedural due process rights not been violated, they would have avoided the
suspension—the students were not allowed to recover money beyond nominal damages.106
2. Implications for Constitutional Tort Damages
In Carey, the Court sets out several important principles. It reiterates that the basic
purpose of a Section1983 damages award is to compensate persons for injuries caused by the
deprivation of constitutional rights.107 Furthermore, “to further the purpose of Section 1983, the
rules governing compensation” should be “tailored to the interests protected by the particular
right in question,” just as the common law rules of damages were “defined by the interests

104

435 U.S. 247, 253 (1978) (citing Imbler v. Pachtman, 424 U.S. 409, 417 (1976)).
Id. at 253 –67. Under an earlier case, the Supreme Court had held that students have a state-created property
interest in access to public education, and that suspension or expulsion constitutes a “deprivation” of such property
within the scope of the 14th amendment. This means that the students are entitled to procedural due process. See
Goss v. Lopez, 419 U.S. 565 (1975).
106
Carey, 435 U.S. at 253–67 (“We therefore hold that if, upon remand, the District Court determines that
respondents’ suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to
exceed one dollar from petitioners.”).
107
Id. at 254–57.
105

24

protected in the various branches of tort law.”108 This is an important characterization of tort law
damages, because it emphasizes the “interests protected” rather than the harm done, which will
be a significant part of understanding the relationship between common law torts and
constitutional torts.109
The Court also makes it clear in Carey that injury cannot be presumed to automatically
flow from the violation of procedural due process.110 The Supreme Court expressed agreement
with the Court of Appeals that, if the school officials could prove on remand that the students
would have been suspended even if there had been no violation of procedural due process—that
is, if a proper hearing had been held—then the students would not be entitled to recover anything
beyond nominal damages.111 By ruling in this way, the Court makes it clear that—at least for
cases of procedural due process—plaintiffs would be required to prove actual injury that was
caused by the violation of their right. If the injury would have occurred even without the
violation of their right, there would be no presumed damages.
The Court elaborates that although presumed damages may be awarded in common law
defamation, cases like Carey differ from common law defamation.112 In defamation cases,
mental and emotion distress can be “presumed” to occur because of the high likelihood of injury

108

Id. at 258–59. The Court proceeds to express agreement “with Mr. Justice Harlan that ‘the experience of
judges in dealing with private [tort] claims supports the conclusion that courts of law are capable of making the
types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for
invasion of [constitutional] rights.’” Id. at 259 (citing Bivens, 403 U. S. 409 (Harlan, J., concurring in judgment)).
109
See infra Part VI.
110
Carey, 435 U.S. at 259–64 (“In sum, then, although mental and emotional distress caused by the denial of
procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the
difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury
actually was caused.”).
111
Id. at 260 (“In this case, the Court of Appeals held that, if petitioners can prove on remand that
‘[respondents] would have been suspended even if a proper hearing had been held,’ 545 F.2d at 32, then respondents
will not be entitled to recover damages to compensate them for injuries caused by the suspensions. . . The court
suggested that, in such circumstances, an award of damages for injuries caused by the suspensions would constitute
a windfall, rather than compensation, to respondents. . . We do not understand the parties to disagree with this
conclusion. Nor do we.”).
112
Id. at 259–64.

25

and the difficulty of proving such injury.113 Comparisons and contrasts between defamation and
constitutional torts will be made in depth later in this article,114 but for now it is enough to say
that the Carey court felt that it would “not [be] reasonable to assume that every departure from
procedural due process, no matter what the circumstances or how minor, inherently is as likely to
cause distress as the publication of defamation per se is to cause injury to reputation and
distress,” that “whatever distress a person feels may be attributable to the justified deprivation
rather than to deficiencies in procedure,” and that there is “no particular difficulty in producing
evidence that mental and emotional distress actually was caused by the denial of procedural due
process itself.”115
The Carey Court ultimately rules that the “elements and prerequisites for recovery of
damages” for the compensation of injuries caused by the violation of one constitutional right “are
not necessarily appropriate to compensate injuries” caused by the deprivation of another
constitutional right.116 The Court uses this reasoning to avoid reconciling Carey with previously
decided cases dealing with damage awards for racial discrimination, the denial of voting rights,
and the denial of Fourth Amendment rights, even though many of those cases also held that
intangible injuries must be proven before the recovery of compensatory damages.117 Instead, the
issues at hand “must be considered with reference to the nature of the interests protected by the
particular constitutional right in question.”118

113

Id. at 262. (“As we have observed in another context, the doctrine of presumed damages in the common law
of defamation per se ‘is an oddity of tort law, for it allows recovery of purportedly compensatory damages without
evidence of actual loss.’ Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 349 (1974). The doctrine has been
defended on the grounds that those forms of defamation that are actionable per se are virtually certain to cause
serious injury to reputation, and that this kind of injury is extremely difficult to prove.”).
114
See infra Part VI.
115
Carey, 435 U.S. at 263.
116
Carey, 435 U.S. at 264–65.
117
Id. at 265.
118
Id. As a consequence, the Court indicated that Carey was not controlled by cases dealing with the awards of
damages for injuries caused by the violation of constitutional rights other than the specific right to procedural due

26

The Carey Court—despite denying an award of presumed damages—does recognize that
the plaintiff’s right was violated. They make this recognition with nominal damages, which do
not require proof of actual injury.119 The Court notes that nominal damages are available because
the right to procedural due process is an “absolute” right, for which “the law recognizes the
importance to organized society” that it is a right “scrupulously observed.”120 Thus, the
determination of whether nominal damages are appropriate turns on the nature and importance of
the actual right being vindicated—not in reference to the plaintiff, but in reference to society—
and not to the degree of the injury at hand. Ironically, the same argument that constitutional
rights are important to organized society and should be scrupulously observed have been used in
favor of presumed damages beyond nominal damages as well, and the Court offered no clear
distinction between the implication of either result.121
3. Alternative Approaches to Constitutional Torts
The Carey Court’s decision to model section 1983 cases after common law torts was an
affirmative move by the Court that was by no means inevitable or natural. Although
“constitutional torts” has “torts” in its name, the Court could have treated them differently as a
branch of law because of the presence of special interests. The Court specifically characterized
“constitutional tort” in such a way that “tort” is prominent and “constitutional” is secondary.122

process. Although Carey distinguished its holding based on the procedural/substantive dichotomy, later substantive
violation cases would follow Carey as precedent.
119
Id. at 266. (“Common law courts traditionally have vindicated deprivations of certain ‘absolute’ rights that
are not shown to have caused actual injury through the award of a nominal sum of money.”).
120
Carey, 435 U.S. at 266 (The Court also notes that “the right to procedural due process is ‘absolute’ in the
sense that it does not depend upon the merits of a claimant’s substantive assertions”, so that “the denial of
procedural due process should be actionable for nominal damages without proof of actual injury.”).
121
See, e.g., Stachura, 477 U.S. 299 at 302–03. The trial court judge in Stachura instructed the jury to award
presumed damages based on the importance of the constitutional right. This was reversed by the Supreme Court.
122
NAHMOD, WELLS & EATON, supra note 2, at 19. See also Shapo, supra note 64, at 324 (“It is not quite a
private tort, yet contains tort elements; it is not ‘constitutional law,’ but employs a constitutional test. Because of this
interesting amalgam, serious questions arise about the measurement of the substantive right.”).

27

The Court’s categorization of constitutional torts into common law torts has been
criticized. Professor Wells, for example, argues that while the “remedial questions raised by
constitutional damages suits resemble common law tort issues,” “common law is not
appropriately viewed as a ‘source of the law’ for constitutional tort rules.”123 Instead, the Court
“should devise rules that reflect the distinctive features of damage suits aimed at vindicating
constitutional rights” and “conceive of the backward-looking relief available in constitutional
tort as part of the system of constitutional remedies, serving as a vehicle for filling in gaps left by
forward-looking injunctive and defensive remedies.”124
Wells also notes that two key distinctions between constitutional torts and common law
torts is (1) “the interest at stake on the plaintiff’s side of a constitutional tort case is
systematically stronger than the plaintiff’s interest in common law torts” and (2) “constitutional
tort suits serve a function in the law of constitutional remedies—supplementing defensive and
prospective remedies—that is quite independent of the plaintiff’s interest in recovery.”125
Other intuitive alternative systems of damages for constitutional torts have been
proposed. For example, an alternative system could have “supplement[ed] the tort model with a
system of bounties, under which plaintiffs who prove that their constitutional rights have been
violated are awarded payments reflecting the jury’s view of the value of those rights, quite apart
from whether the plaintiffs can show injury.”126 Such a system would be reminiscent of qui tam
actions, where the plaintiff receives a bounty for bringing a whistle-blowing suit.127 Qui tam
actions are designed this way in order to incentivize lawsuits to be brought, given the importance

123

Michael L. Wells, Constitutional Remedies, Section 1983 and the Common Law, 68 MISS. L. J. 157, 160

(1998).
124

Id. at 159.
Id. at 222–23.
126
See, e.g., NAHMOD, WELLS & EATON, supra note 2, at 534.
127
See, e.g., Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L. J. 341, 345 (1989).
125

28

of prosecuting defendants who would escape notice otherwise. Similar rationale could be used in
the constitutional tort context—that constitutional rights are of paramount importance to society
at large, not just to the plaintiff individually, and that society would benefit from revelations of
constitutional violations.128
B. Constitutional Tort Damages Under Stachura
1. Facts and Holding of Stachura
Despite academic criticism of Carey,129 the Supreme Court solidified its Carey holding in
Memphis Community School District v. Stachura.130 Stachura was a tenured public school
science teacher who showed students pictures and videos involving human reproduction, which
elicited complaints from parents.131 After an open School Board meeting was held, Stachura was
suspended without pay.132 His complaint sought compensatory and punitive damages, alleging
that the suspension deprived him of both liberty and property without due process of law and
violated his First Amendment right.133
The Supreme Court granted certiorari limited to the question of whether the Court of
Appeals had erred in affirming the damages award in light of the District Court’s instructions.134
The instructions in question were given in three parts. First, the District Court instructed the jury
to award in damages “a sufficient amount to compensate respondent for the injury caused by the
petitioners’ unlawful actions”, including “lost earnings, loss of earning capacity; out-of-pocket

128

See Wells, supra note 123, at 222–23 (“The interest at stake on the plaintiff’s side of a constitutional tort
case is systematically stronger than the plaintiff’s interest in common law torts. . . . [C]onstitutional tort suits serve a
function in the law of constitutional remedies—supplementing defensive and prospective remedies—that is quite
independent of the plaintiff’s interest in recovery.”
129
See, e.g., Jean C. Love, Damages: A Remedy for the Violation of Constitutional Rights, 67 CAL. L. REV. 1242
(1979).
130
477 U.S. 299 (1986).
131
Id. at 300–301.
132
Id. at 301.
133
Id. at 301–02.
134
Stachura, 477 U.S. at 304.

29

expenses; and any mental anguish or emotional distress that. . . the Plaintiff [ ] suffered as a
result of conduct by the Defendant depriving him of his civil rights.”135 Second, the District
Court explained that punitive damages could be awarded, and described the standards governing
punitive awards.136 Then, over the defendant’s objection, the District Court “charged that
damages could also be awarded based on the value or importance”137 of the constitutional right
that the defendant violated, by instructing the jury:
If you find that the Plaintiff has been deprived of a Constitutional right, you may
award damages to compensate him for the deprivation. Damages for this type of
injury are more difficult to measure than damages for a physical injury or injury
to one's property. There are no medical bills or other expenses by which you can
judge how much compensation is appropriate. In one sense, no monetary value we
place upon Constitutional rights can measure their importance in our society or
compensate a citizen adequately for their deprivation. However, just because
these rights are not capable of precise evaluation does not mean that an
appropriate monetary amount should not be awarded.
The precise value you place upon any Constitutional right which you find was
denied to Plaintiff is within your discretion. You may wish to consider the
importance of the right in our system of government, the role which this right has
played in the history of our republic, [and] the significance of the right in the
context of the activities which the Plaintiff was engaged in at the time of the
violation of the right.138
The jury found in favor of the Plaintiff and awarded $275,000 in compensatory damages
and $46,000 in punitive damages.139 The District Court entered judgment notwithstanding
verdict as to one of the defendants, reducing the total award to $266,750 in compensatory
damages and $36,000 in punitive damages.140
The Sixth Circuit Court of Appeals affirmed the damages, noting that “there was ample
proof of actual injury to the plaintiff both in his effective discharge. . . and by the damage to his
135

Id. at 302.
Id.
137
Id.
138
Stachura, 477 U.S. at 302–03.
139
Id. at 303.
140
Id.
136

30

reputation and to his professional career as a teacher.”141 Thus, the Sixth Circuit distinguished
Stachura from Carey, noting that “[c]ontrary to the situation in Carey v. Piphus. . . there was
proof from which the injury could have found, as it did, actual and important damages.”142
However, the Supreme Court disagreed with the Sixth Circuit, finding that the damages
were inappropriate. The Supreme Court opinion characterized the trial court instructions as
permitting “the jury to award damages based on its own unguided estimation of the value” of
constitutional rights.143 The Court emphasized that the “instructions plainly authorized. . . two
distinct types of ‘compensatory’ damages: one based on respondent’s actual injury according to
ordinary tort law standards, and another based on the ‘value’ of certain rights.”144
The Supreme Court reiterated the common law tort framework behind Section 1983 cases
by citing the Carey mantra that 42 U.S.C. 1983 creates “a species of tort liability” and holding
that “when 1983 plaintiffs seek damages for violations of constitutional rights, the level of
damages is ordinarily determined according to principles derived from the common law of
torts.”145 The Court emphasizes the compensatory nature of tort damages, explaining that while
deterrence “is also an important purpose” of the tort system, “it operates through the mechanism
of damages that are Compensatory.”146
The Court ruled that the instructions could not be squared with Carey, “or with the
principles of tort damages on which Carey and 1983 are grounded.”147 Because the jurors were

141

Stachura v. Truszkowski, 763 F.2d 211 (6th Cir. 1985).
Id. at 214.
143
Stachura, 477 U.S. at 304–05.
144
Id at 305 (“The damages instructions were divided into three distinct segments: (i) compensatory damages
for harm to respondent, (ii) punitive damages, and (iii) additional ‘compensat[ory]’ damages for violations of
constitutional rights. No sensible juror could read the third of these segments to modify the first.”).
145
Id.
146
Id. (“Punitive damages aside, damages in tort cases are designed to provide ‘compensation for the injury
caused to plaintiff by defendant’s breach of duty’”) (citing Carey, 435 U.S. at 255 (quoting 2 F. Harper, F. James, &
O. Gray, Law of Torts 25.1, p. 490 (2d ed. 1986))).
147
Stachura, 477 U.S. at 305.
142

31

told to determine the value of the constitutional right itself—rather than of the injury its
deprivation cost the plaintiff, the instructions were impermissible.148 The Court emphasizes that
“no compensatory damages could be awarded for the violation of that right absent proof of actual
injury” so that “the abstract value of a constitutional right may not form the basis of 1983
damages.”149
2. Implications for Constitutional Tort Damages
Stachura gave the Court an important opportunity to interpret the procedural due process
language in Carey. The Court held that Carey “does not establish a two-tiered system of
constitutional rights, with substantive rights afforded greater protection than ‘mere’ procedural
safeguards”.150 Although the “elements and prerequisites for recovery of damages” could vary
depending on the interests protected by the right, the damages must be designed “to compensate
injuries caused by the [constitutional] deprivation.”151 The Court also notes that compensatory
damages should be enough for deterrence, were intended by Congress, and more equitable to
defendants.152
The Supreme Court also clarified their conception of presumed damages. The Court held
that presumed damages “are a substitute for ordinary compensatory damages, not a supplement
for an award that fully compensates the alleged injury.”153 Presumed damages are for injuries

148

Id. at 308 (noting that the factors the jurors were asked to consider focused “not on compensation for
provable injury, but on the jury’s subjective perception of the importance of constitutional rights as an abstract
matter”).
149
Id. at 308 (quoting Carey, 435 U.S. at 264).
150
Id. at 309.
151
Stachura, 477 U.S. 299 at 309 (citing Carey, 435 U.S. at 265).
152
Id. at 309–10 (“Section 1983 presupposes that damages that compensate for actual harm ordinarily suffice to
deter constitutional violations. Carey, supra, at 256-257 ("To the extent that Congress intended that awards under
1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent
more formidable than that inherent in the award of compensatory damages"). Moreover, damages based on the
"value" of constitutional rights are an unwieldy tool for ensuring compliance with the Constitution. . . Accordingly,
were such damages available, juries would be free to award arbitrary amounts without any evidentiary basis, or to
use their unbounded discretion to punish unpopular defendants.”).
153
Id. at 310.

32

that are “likely to have occurred but difficult to establish.”154 Because the instructions “called on
the jury to measure damages based on a subjective evaluation of the importance of particular
constitutional values” instead of roughly approximating the harm the plaintiff suffered, the
instructions were erroneous.155
Neither Carey nor Stachura completely barred presumed damages in Section 1983
litigation. In both cases, however, the Supreme Court stated that presumed damages should be
allowed only when the nature of the constitutional right was such that proof of injury resulting
from its deprivation would be unusually difficult for the plaintiff to provide. This language is
borrowed from defamation jurisprudence in common law. The only right that the Court explicitly
acknowledged as systematically difficult to prove was the right to vote.156
C. Presumed Damages After Carey and Stachura
1.

Allowing Presumed Damages

Jean Love has suggested that “although the courts will not recognize presumed general
damages for abstract deprivations of constitutional rights, the Court might be willing to allow
the recovery of presumed general damages for certain intangible injuries caused by violations of
constitutional rights.”157 The question of how receptive courts are to presumed damage awards
after Carey and Stachura difficult to answer, and cases have been decided with varying results.
After Stachura, “some courts remain receptive to presumed damages.”158 However, these
opinions—that speak favorably of presumed damages—seem to almost uniformly
simultaneously emphasize the plaintiff’s adequate showing of injury, which weakens the
154

Id. at 310–11.
Stachura, 477 U.S. at 311–12 (“Moreover, no rough substitute for compensatory damages was required in
this case, since the jury was fully authorized to compensate respondent for both monetary and nonmonetary harms
caused by petitioners' conduct.”).
156
See Stachura, 477 U.S. at 311 n.14; Carey, 435 U.S. at 265 n.22.
157
NAHMOD, WELLS & EATON, supra note 2, at 549 (quoting Jean Love, Presumed General Damages in
Constitutional Tort Litigation, 49 WASH. & LEE L. REV. 67, 80 (1992)) (emphasis in original).
158
NAHMOD, WELLS & EATON, supra note 2, at 549.
155

33

presumed damages support, because presumed damages should be awarded without proof of
harm.
In Walje v. City of Winchester,159 the Sixth Circuit affirmed an award of $5000 in
presumed damages to a fireman whose First Amendment rights were violated when he was
suspended for a dispute over a radio station interview.160 Although the Walje Court awarded
presumed damages while the Stachura court did not, the Sixth Circuit was very careful to square
its decision with Stachura, noting that Stachura “held that presumed damages are an appropriate
substitute for ordinary compensatory damages in cases where the ‘plaintiff seeks compensation
for an injury that is likely to have occurred but difficult to establish. . .’”161
Interpreting Stachura as holding that presumed damages “are appropriate for
nonmonetary harm that cannot easily be quantified,”162 the Sixth Circuit found that presumed
damages may be awarded where “specific elements of the damage were difficult to pinpoint
because of the nature of the injury.”163
The plaintiff in Walje seemed to have introduced evidence of actual injury, including
testimony that at the time of his suspension, his wife was pregnant and that he had “never been
under such pressure” and felt “close to a nervous breakdown.”164 This is ironic because the crux
of presumed damages is difficulty of proof, and yet the Court admits the plaintiff’s statements as
evidence of injury, therefore, awarding damages because injury has been proven. Despite all the

159

827 F.2d 10 (6th Cir. 1987).
Walje, 827 F.2d at 11 (Stachura was decided by the Supreme Court in the interim between the District
Court’s decision in Walje on remand and this appeal to the Sixth Circuit).
161
Id. at 12 (citing Stachura, 106 S. Ct. 2537 at 2545).
162
Id.
163
Id. at 13.
164
Walje, 827 F.2d at 13 (“Mr. Walje was clearly injured by his unlawful suspension from the fire department.
He was suspended from the department at a time when his wife was 8 1/2 months pregnant and was thereby placed
in a position where he and his wife felt that his health insurance for the birth of his child would be jeopardized. The
plaintiff testified that he had never been under such pressure in his life and that he felt close to a nervous breakdown
due to the suspension. These facts are sufficient to support a $5,000 award of general damages.”)
160

34

presumed damages language, the damages were not really presumed in Walje. Nonetheless, the
Sixth Circuit’s language in Walje has been interpreted to signal receptiveness to presumed
damages in Section 1983 actions.165
The Seventh Circuit, like the Sixth Circuit, also indicated support of presumed damages
in cases following Stachura. In Siebert v. Severino,166 property owners brought a Section 1983
suit against a Department of Agriculture investigator who searched their property and seized
their horses without a search warrant.167 The Seventh Circuit Court of Appeals wrote:
Even if Severino nosed around in the Sieberts' barn, there appears to be little or no
damage, so what's the harm? The harm is that Severino violated the Sieberts'
constitutional rights. Had the Sieberts been doing something illegal in the barn
and Severino's search uncovered evidence, the Supreme Court mandates that such
evidence be excluded (unless, of course, there is some exception to the
exclusionary rule). In the criminal context, the evidence is excluded even though
it might otherwise be used to convict the accused. But the Fourth Amendment
does not only protect people accused of crimes. The law recognizes that lawabiding citizens can sue and recover general (or presumed) damages for a Fourth
Amendment violation, even without proof of injury. . . In the end, it will be for
the jury to decide the proper quantum of relief, if any, for Severino's violation of
the Sieberts' Fourth Amendment rights.168
However, even though the Seventh Circuit’s language supports presumed damages, but its
emphasis differs from the Sixth Circuit’s language in Walje. Instead of emphasizing actual
distress or injuries that the plaintiff suffered, the Seventh Circuit asked “so what's the harm? The
harm is that Severino violated the Sieberts' constitutional rights.”169 In other words, the Siebert
Court is saying that the violation of the right itself was an injury to plaintiff. By proving the
violation, the plaintiff proved the injury.

165

See, e.g., NAHMOD, WELLS & EATON, supra note 2, at 549 (describing the Walje decision as “upholding a
$5,000 presumed damages award to a plaintiff government employee was suspended in violation of his first
amendment rights.”)
166
256 F.3d 648 (7th Cir. 2001).
167
Siebert, 256 F.3d at 651–53.
168
Id. at 655.
169
Id. (emphasis added).

35

The Ninth Circuit has also expressed support for the legitimacy of presumed damages,
interpreting Carey as standing for the proposition that “[p]resumed damages are appropriate
when there is a great likelihood of injury coupled with great difficulty in proving damages.”170
Commentators have noted that Carey’s language does not require that courts bar
presumed damages, and that the Court’s “considerations concerning proof of damages for mental
or emotional distress may be wholly inapplicable to the presumption of damages for loss of
reputation or for injury to one of the special constitutional interests which a court may find.”171
Furthermore, Stachura seems to explicitly allow presumed damages in voting right decisions.172
Perhaps, then, presumed damages may be allowed in constitutional torts when they “satisfy the
common law rationale for presuming damages.”173
2. Refusing Presumed Damages
Other courts have interpreted Stachura to bar presumed damages and require proof of
actual injury for anything beyond nominal damages. In orwood v. Bain,174 the Fourth Circuit
affirmed the district court’s refusal to award damages for a Fourth Amendment violation.175 The
Court interpreted Carey and Stachura as standing for the holding that damages may be only
recovered “for any actual harms caused by the violation.”176 If the plaintiff attempted to prove
injury, but the Court found the proof inadequate:

170

Trevino v. Gates, 99 F.3d 911, 921 (9th Cir. 1996).
See Hess, supra note 26, at 306 (“Some courts have read Piphus as barring the presumption of damages in
all section 1983 cases, but such a result is not required by the reasoning above. Injuries associated with violations of
different constitutional rights almost certainly will not present the problems of causation peculiar to due process
violations.”)
172
Stachura, 477 U.S. at 311 n. 14 (noting that a voting right violation award “did not rest on the ‘value’ of the
right to vote as an abstract matter; rather, the Court recognized that the plaintiff had suffered a particular injury—his
inability to vote in a particular election—that might be compensated through substantial money damages.”)
173
Hess, supra note 26, at 306.
174
143 F.3d 843 (4th Cir. 1998).
175
orwood, 143 F.3d at 858–59.
176
Id. at 855.
171

36

The only evidence of emotional distress came in the form of testimony by
Norwood and four other class members that they felt annoyance, humiliation, and
indignity at being subjected to the searches. None testified that their emotional
upset was caused by oppressive or threatening conduct by the checkpoint
officers…. Under the circumstances, we agree with the district court that this
testimony failed to prove emotional distress other than any that may have been
experienced as a sense of indignity from the very violation of a constitutional
right. And that, as indicated, is not a compensable harm in §1983 litigation.177
Commentators have noted that “Siebert and orwood seem irreconcilable.”178 However, the
orwood holding still leaves room for presumed damages. The fact that the Court found the
plaintiff’s evidence inadequate could mean that they thought adequate proof could have been
presented had the plaintiff done a better job of testifying, like the plaintiff in Walje with his
pregnant wife and nervous breakdown.179 However, requiring such testimony would render
presumed damages unnecessary because actual proof would have been presented.
IV.

PRESUMED DAMAGES

Although the Supreme Court has grounded its analysis about presumed damages in
constitutional torts in a discussion about defamation,180 little analysis has been done about
presumed damages with defamation as a starting point. This article sets out to harmonize the
application of presumed damages in defamation cases with the prospects of presumed damages
in constitutional torts.
A. Common Law Damages
The common law torts system recognizes three classes of damages: nominal, punitive,
and compensatory.181 Nominal damages are a trifling sum, usually not to exceed one dollar,
which serves as a symbolic declaration that the defendant has invaded a legally protected interest
177

Id.
NAHMOD, WELLS & EATON, supra note 2, at 549.
179
Walje, 827 F.2d at 13.
180
See, e.g., Carey, 435 U.S. at 260.
181
See, e.g., D. DOBBS, HANDBOOK ON THE LAW OF REMEDIES §3.1 (1973); RESTATEMENT (SECOND) OF TORTS
§§ 901–909 (1977).
178

37

of the plaintiff.182 They are awarded in cases where the plaintiff succeeds in proving the merits of
his claim, but fails to prove actual injury. Punitive damages are awarded when the defendant’s
conduct has been egregious.183 They are typically awarded to deter or punish the defendant for
especially bad behavior.
Compensatory damages, on the other hand, are awarded to pay the costs of the harm
suffered by the plaintiff in an attempt to make the plaintiff “whole”, or to bring him back to his
ex ante position before the tort occurred.184 Types of harms that can be compensated include
special damages such as medical bills, and general damages such as projected loss of income or
emotional or physical suffering.185
Compensatory damages are the default type of damages under the common law of torts,
functioning to compensate injured plaintiffs while deterring defendants from undesirable
conduct.186 Compensatory damages, like other elements of the lawsuit, are the plaintiff’s burden
to prove to a preponderance of evidence.187 In some cases, however, like where the cause of
action is based on the invasion of certain “dignitary” interests, the plaintiff does not bear the
burden of proof.188 This is where presumed damages come in.
B. Common Law Presumed Damages

182

See, e.g., Carey, 435 U.S. at 266 (citing D. DOBBS, LAW OF REMEDIES § 3.8 (1973); C. MCCORMICK, LAW OF
DAMAGES §§ 20-22 (1935); RESTATEMENT OF TORTS § 907 (1939)).
183
D. DOBBS, supra note 181, at §3.8.
184
Id. at §3.1.
185
Id.
186
See, e.g., Stachura, 477 U.S. at 307 (“To that end, compensatory damages may include not only out-ofpocket loss and other monetary harms, but also such injuries as ‘impairment of reputation. . . personal humiliation,
and mental anguish and suffering. . . Deterrence is also an important purpose of this system, but it operates through
the mechanism of damages that are compensatory—damages grounded in determinations of plaintiffs’ actual
losses.”) (emphasis in original).
187
The plaintiff does not need to prove compensatory damages to a level of mathematical precision, and usually
the jury ultimately determines what it believes the appropriate amount of compensation is, but the plaintiff does bear
the burden of proof.
188
Dignitary invasions are “injuries to the personality. . . an intangible right.” D. DOBBS, supra note 181, at
§7.1. These include violations of privacy and violations of the right to vote. See, e.g., Anderson, supra note 13, at
749.

38

Presumed damages are compensatory damages that are awarded without any actual
evidence of injury.189 This means that the plaintiff “is relieved of the necessity of producing any
proof whatsoever that he has been injured”, and the jury is allowed to “presume” that injury took
place.190 This doctrine “provides that substantial injury may be presumed to flow from certain
tortuous acts, even though the plaintiff has presented no proof of actual loss, when the torts
invade interests that are intangible, rather than physical or economic.”191
Today, defamation is the only tort that applies the presumed damages doctrine, making it
an “oddity” of tort law.192 Commentators have summarized presumed damages in these cases as
producing the result that:
The plaintiff is relieved from the necessity of producing any proof whatsoever
that he has been injured. From the fact of the publication of the defamatory matter
by the defendant, damage to the plaintiff is said to be “presumed,” and the jury,
without any further data, is at liberty to assess substantial damages, upon the
assumption that the plaintiff’s reputation has been injured and his feelings
wounded.193
Courts have been allowing juries to presume that damage occurs from defamatory utterances for
centuries, and damages were presumed for libel from as early as 1670.194

189

See Dalton v. Meister, 188 N.W.2d 494, cert. denied, 405 U.S. 934 (1971); Belli v. Orlando Daily
ewspapers, Inc., 389 F.2d 579 (5th Cir. 1967).
190
Charles T. McCormick, The Measure of Damages for Defamation, 12 N.C. L. REV. 120, 127 (1934).
191
Fourth Amendment Violations, supra note 12, at 193.
192
Gertz, 418 U.S. at 349. See also Anderson, supra note 13, at 749 (noting the uniqueness of presumed
damages for defamation cases:
As Justice Powell said in Gertz v. Robert Welch, Inc., the presumed damage rule makes
defamation an oddity of tort law. Trespass law permits presumed damages, for example, but the
modern rule seems to be that the plaintiff may recover only nominal damages unless he proves that
the trespass caused actual harm. The same is true of most constitutional torts. Courts also have
employed something similar to the presumption of harm in cases involving the unconstitutional
denial of the right to vote. The United States Supreme Court, however, has refused to adopt a
general rule presuming harm in civil rights cases. Thus, a plaintiff who is deprived of procedural
due process is entitled only to nominal damages unless he proves that he has suffered actual
injury. In contrast, the presumed damages in defamation cases are not limited to nominal sums,
and awards are often substantial.)
193
194

McCormick, supra note190, at 127.
RESTATEMENT (SECOND) OF TORTS § 568 comment b (1938).

39

The presumption of harm is not only relevant in defamation per se cases, but “in the
absence of a statutory limitation, presumed damages are potentially available in every libel or
slander case.”195 In non-per se cases, once the plaintiff is able to prove special damages, he is
entitled not only to those damages, but also to presumed damages.196
Presumed damages are useful because it is consistently difficult for plaintiffs in
defamation cases to prove actual damages. In Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., the Supreme Court commented that the “rationale of the common law rules has been the
experience and judgment of history that ‘proof of actual damage will be impossible in a great
many cases where, from the character of the defamatory words and the circumstances of
publication, it is all but certain that serious harm has resulted in fact.’”197 Furthermore, the Court
also notes that presumed damages help by “further[ing] the state interest in providing remedies
for defamation by ensuring that those remedies are effective.”198 One commentator has wryly
noted that “[i]ndeed, it goes without saying that any remedy involving an award of damages
without proof of injury is bound to be quite effective.”199
However, there are two meaningful limits on presumed damages in defamation. First,
presumed damages are constitutionally barred from being applied in cases where the defendant is
merely negligent. In Gertz v. Robert Welch, Inc., the Supreme Court held that the common law
of presumed damages is incompatible with the First Amendment freedoms—and therefore
unconstitutional—where the action is based on negligence, rather than a “showing of knowledge
of falsity or reckless disregard for the truth.”200
195

Anderson, supra note 13, at 748.
Id. (citing RESTATEMENT (SECOND) OF TORTS § 163 comment 3 (1976)).
197
Dun & Bradstreet, Inc., 472 U.S. at 760 (quoting WILLIAM PROSSER, LAW OF TORTS 765 §112 (4th ed.
1978)).
198
Id. at 761.
199
SMOLLA, supra note 25, at § 9:17 (emphasis in original).
200
Gertz, 418 U.S. at 324.
196

40

The most recent Restatement of the Law of Torts emphasizes this limitation by stating
that defendants are only liable for the “proved, actual harm caused to the reputation of the person
defamed.”201 But the American Law Institute acknowledges the “traditional common law rule
allowing recovery in the absence of proof of actual harm, for the harm that normally results from
such a defamation” in its caveat.202 The Institute also notes that the award “in the absence of
proof, for harm to reputation that would normally be assumed to flow from a defamatory
publication of the nature involved” affords “little control by the court over the jury in assessing
the amount of damages.”203
Second, in cases where presumed damages are allowed, courts try to police the
magnitude of the awards.204 While there is almost always a certain amount of flexibility involved
when juries are given the task of awarding presumed damages, courts place limits and look to the
social policy of compensation as a potential guiding principal. For example, in Republic Tobacco
Co. v. orth Atlantic Trading Co., Inc.,205 the Court noted that:
In a case lacking proof of economic injury and where the defamatory statements
were publicized to a relatively limited audience. . . it would be inappropriate to
award presumed damages that are exponentially greater than have been awarded
in past cases. While we are mindful that under the doctrine of presumed damages
a party is not required to show specific loss, there must be some meaningful limit
on the magnitude of a jury award when it is arrived at by pure speculation.
Presumed damages serve a compensatory function—when such an award is given
in a substantial amount to a party who has not demonstrated evidence of concrete
loss, it becomes questionable whether the award is serving a different purpose.206

201

RESTATEMENT (SECOND) OF TORTS § 621 (1977).
Id. (“The Institute takes no position on whether the traditional common law rule… may constitutionally be
applied if the defendant knew of the falsity of the communication or acted in reckless disregard of its truth or
falsity.”).
203
RESTATEMENT (SECOND) OF TORTS § 621 comment a (1977).
204
See, e.g., SMOLLA, supra note 25, at § 9:17.
205
381 F. 3d 717 (7th Cir. 2004).
206
Id. at 734–35(emphasis added) (the Court concluded that an “award of $1 million is sizeable enough to
compensate Republic for the damage that we presume was caused to its reputation in the tobacco industry and the
harm that we presume was done to the business relationship it cultivated over the years, yet not so unsubstantial as
to be out of line with other presumed damages awards allowed under Illinois law.”).
202

41

Although presumed damages may be limited by the courts, they cannot be said to be merely
nominal. They are quite substantial at times. In Republic Tobacco Co., the Court reduced the
district court’s presumed damages award of $3.36 million to $1 million.207
C. Limitations on Presumed Damages
Presumed damages have been limited in very significant ways by constitutional
interpretation. This type of limitation is worth bearing in mind because if the problem is that
presumed damages award too much in constitutional torts, similar limitations could be outlined.
As the Supreme Court stated in Gertz, presumed damages are “an oddity in tort law” that
“allows recovery of purportedly compensatory damages without evidence of actual loss.”208 The
problem with presumed damages, which the Supreme Court had to address, was whether it
would result in censorship by allowing juries to “punish unpopular opinion rather than to
compensate for injury sustained” by the publication.209 A similar problem stands in constitutional
torts, where there is the danger that an unfettered jury will award damages without regard to the
injury sustained.210
The Court decided that presumed damages doctrine had to comply with the standard set
out in ew York Times Co. v. Sullivan.211 This meant that presumed damages are “necessarily
displaced” when the defendant is tried with a negligence standard.212 However, presumed
damages themselves do not violate “fundamental notions of fairness”, but are allowed in cases

207

Id.
Gertz, 418 U.S. at 349.
209
Id. This also emphasizes the compensatory directive of presumed damages.
210
See, e.g., Stachura, 477 U.S. at 304–305.
211
376 U.S. 254 (1964). This was a case which established the actual malice standard. Proof of actual malice
had to be produced before the press can be liable for defamation presumed damages when reporting about public
figures. Actual malice requires proof of knowledge of falsity or reckless disregard of falsity. This is considered to be
a very high burden of proof on the plaintiff.
212
Gertz, 418 U.S. at 349–50.
208

42

not barred by ew York Times.213 Furthermore, although presumed damages need to be
reasonable, a jury instruction that allowed discretion by noting that there is no “fixed or
mathematical rule” in assessing compensation did not constitute an unconstitutional use of
presumed damages.214 The Court in Gertz also made it clear that actual injury is not limited to
special damages.215
In a later case, Dun & Bradstreet Inc., the Supreme Court limited the Gertz ruling to
cases of public concern.216 Because Dun & Bradstreet Inc. involved allegations that were not a
matter of public concern, the Court found that the First Amendment interest was less important
and that presumed damages could actually serve the state interest in compensation.217 Hence,
presumed damages may be allowed—even without a showing of constitutional malice—in
private concern cases.218
Going further, courts have also found that plaintiffs sometimes have a right to presumed
damages. For example, the Seventh Circuit has overturned a district court holding, finding that
the lower court erred in not allowing the corporate plaintiff to rely on the presumption of
213

Sleem v. Yale University, 843 F. Supp. 57, 66–67 (M.D. N.C. 1993) (emphasizing the “perceived need to
compensate victims of defamation whose reputation may be harmed even though specific proof of actual damages
may be difficult.”). See, e.g., Sprague v. American Bar Ass’n., 276 F. Supp. 2d 365, 373 (E.D. Pa 2003) (leaving
“untouched” damages that were awarded where constitutional malice was actually proven); Haskins v. Bayliss, 440
F. Supp. 2d 455, 464 (D. Md. 2006) (emphasizing that presumed damages are not “constitutionally” barred in
constitutional malice cases).
214
Carney v. Santa Cruz Women Against Rape, 221 Cal. App. 3d 1009 (6th Dist. 1990). See also Sommer v.
Gabor, 48 Cal. Rptr. 2d 235, 246–47 (2d Dist. 1995) (approving an instruction for presumed damages that told the
jury to determine “those damages that necessarily result from the publication of defamatory matter and are presumed
to exist. They include reasonable compensation for loss of reputation, shame, mortification, and hurt feelings. No
definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for
presumed damages, and no evidence of actual harm is required. Nor is the opinion of any witness required as to the
amount of such reasonable co compensation. In making an award for presumed damages, you shall exercise your
authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the
evidence. You may in the exercise of your discretion award nominal damages only, namely an insignificant sum
such as one dollar”).
215
Gertz, 418 U.S. at 350 (“Indeed, the more customary types of actual harm inflicted by a defamatory
falsehood include impairment of reputation and standing in the community, personal humiliation, and mental
anguish and suffering . . . there need be no evidence which assigns an actual dollar value to the injury.”).
216
See Dun & Bradstreet Inc., 472 U.S. at 757–61.
217
Id. at 761.
218
Id.

43

damages authorized by state law because constitutional malice was actually proven.219Although
presumed damages are compensatory, and should represent projected injury, courts have also
confusingly indicated that proving actual losses does not preclude an additional award of
presumed damages.220
D. The Rationale Behind Presumed Damages
In order to consider whether presumed damages make sense for constitutional torts, it
makes sense to examine the reasons why presumed damages make sense for defamation.There
are two main arguments for allowing presumed damages for the protection of the reputation of
the plaintiff: (1) that it is often too difficult to prove harm to reputation, and (2) they are
necessary to vindicate the reputation of the plaintiff.221
1.

Difficulty of Proof

In his dissent in Gertz, Justice White stated that the presumption of damage reflects “the
judgment of experience that some publications are so inherently capable of injury, and actual
injury so difficult to prove, that the risk of falsehood should be borne by the publisher.”222 This
proposition—that proving injury to reputation poses is extremely difficult for the plaintiff—is
accepted by the Court in Dun & Bradstreet.223
However, commentators have noted that a problem with Justice White’s position is that it
seems to:
219

See Brown & Williamson Tobacco Co. v. Jacobson, 827 F.2d 1119 (7th Cir. 1987). The Court examined the
evidence and concluded that the message in question was very powerful. This case was cited in Republic Tobacco
Co., where the Court declined to affirm presumed damages that it deemed “exponentially greater” than in prior
cases, because it felt like the purpose went beyond compensatory. Republic Tobacco Co., 381 F.3d at 734–35.
220
See Weller v. American Broadcasting Companies, Inc., 283 Cal. Rptr. 644, 659 (1st Dist. 1991). See also
WJLA-TV v. Levin, 564 S.E. 2d 383, 395–96 (2002) (upholding a finding of both presumed and actual damages for
$2 million in favor of a doctor accused of assaulting his patients because of the “grave nature” of the allegations and
the “inevitable damage” to his reputation).
221
These two arguments are found widely in the literature. See, e.g, DARIO MILO, DEFAMATION AND FREEDOM
OF SPEECH 230 (Oxford University Press 2008) (laying out the two main arguments).
222
Gertz., 418 U.S. at 376 (dissenting) (emphasis added).
223
See generally Dun & Bradstreet, 472 U.S. 749 (1985).

44

[F]ail[ ] to take account of the different position in other areas of the law
protecting reputation, such as those cases of slander where the allegations are not
actionable per se, injurious falsehood, passing-off, and damages for loss of
reputation as a result of breach of contract. In these areas, the claimant will not
succeed in recovering damages unless he tenders proof of special damage in the
case of slander and injurious falsehood, damage to goodwill in the case of
passing-off, and financial loss in the case of a breach of contract that impacts
upon reputation. It has never been suggested that the difficulties of proving loss
for these analogous actions render the claimant’s right worthless. Indeed,
historically the action for slander required proof of damage in all cases, and this
appears not, at the time, to have stemmed the tide of slander actions. Furthermore,
even in modern English defamation law, there are at least three areas from which
it is implied that reputational harm is capable of proof.224
Commentators have identified four types of relational harm that defamation plaintiffs could seek
to prove: interference with existing relationships (whether social, business, or family),
interference with future relationships, destruction of a favorable public image, and creating a
negative public image for someone who had no previous public image.225 It has been suggested
that plaintiffs could prove these harms without “insurmountable difficulties,” so that presumed
damages should not be allowed.226 Other commentators have noted that specific elements—for
example—proof of mental distress, should be required to the extent that it allows crossexamination of the plaintiff.227
Another argument advanced against presumed damages is that juries may be either
intentionally or unintentionally incorrect in estimating the cost of the damages. Presumed
damages may lead “to the absurd position, one highly detrimental to free speech, that a claimant

224

See MILO, supra note 221, at 231.
See Anderson, supra note 13, at 765–67. However, Anderson’s more recent article argues that presumed
damages might actually be necessary! See generally David A. Anderson, Rethinking Defamation, 48 ARIZONA L.
REV. 1047 (2006).
226
See Kevin P. Allen, The Oddity and Odyssey of ‘Presumed Damages’ in Defamation Actions Under
Pennsylvania Law, 42 DUQUESNE L. REV. 495, 507 (2004) (making the argument in relation to Pennsylvania law
specifically).
227
See MILO, supra note 221, at 233 (“The claimant should be required to aver that he has suffered mental
distress and give evidence and be cross-examined in this regard. . . There are, in any event, a number of torts where
mental distress is recoverable although damage is not presumed, not least aspects of US defamation law.”)
225

45

may recover damages even where his reputation has demonstrably been unaffected by the
publication.”228
2. Vindication of Reputation
Another argument for presumed damages, advanced internationally, is that they are
necessary to properly vindicate the reputation before all of society.229 Commentators who
disagree with this argument propose that “declarations of falsity and apology or correction
remedies are much better suited to vindicating the reputation of the claimant.”230 Furthermore,
even if we assume that damages “are of some relevance” in vindicating reputation, “harm to
reputation should first be established” because it is “illogical to seek to vindicate a claimant’s
reputation where the claimant has suffered no actual harm”.231
However, presumed damages may be argued to be necessary “if one accepts the
implications of the argument that reputation is based on dignity.”232 Dignity transcends beyond
the individual interest of the plaintiff; it is a part of a larger interest of society—that is, “society’s
interest in its rules of civility.”233 Presumed damages contribute to the deterrence sanction aspect
of defamation law.234 This is reminiscent of some of the language used in constitutional tort
arguments about presumed damages—that they protect interests that transcend those of the
plaintiff to the society at large.235

228

Id. The author cites ew York Times v. Sullivan, where Justice Black commented that after the case
Sullivan’s reputation might have actually improved in Alabama, but where he was awarded $500,000 by the jury.
229
Id.
230
Id. at 233–34.
231
Id. at 234 (“Stated differently, to the extent that the desire is to sanction a breach of civility rules, this is
acceptable only in circumstances where the claimant is able to establish some harm to reputation. The vindication
point, it is submitted, is parasitic on the ability of the claimant to show that he has suffered damage to reputation.”)
232
MILO, supra note 221, at 234.
233
Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 CAL. L.
REV. 691, 711–173 (1986) (proposing that presumed damages help create a “license for juries to sanction defendants
who trespass beyond the bounds of propriety”).
234
See, e.g., Jonathon Garret Erwin, Can Deterrence Play a Positive Role in Defamation Law?, 19 REV. LITIG.
675, 675 (2000).
235
See, e.g., Hess, supra note 26, at 301.

46

However, in the defamation context, the Supreme Court has restricted the availability of
presumed damages, which suggests that society’s interest in vindicating the rights of the
defamed—at least according to the court—is limited. “If the subject matter of the defamation is
of public concern, or the plaintiff is a public figure or public official, they may be awarded only
upon a showing that the defendant knew the statement was false or acted with reckless disregard
of its truth or falsity.”236
V.

PRESUMED DAMAGES AS APPLIED TO CONSTITUTIONAL TORTS

Presumed damages has been suggested as a means of bringing “more consistency and
equity” to damage awards for constitutional torts that do not cause “substantial measurable
pecuniary loss.”237 In Carey v. Piphus, the Supreme Court entrusted the lower courts with the
responsibility to fashion the federal rules of constitutional tort damages by adapting principles
from the common law of torts.238 Although the Supreme Court has forbidden presumed damages
in specific circumstances,239 it has determined that in general, “the experience of judges in
dealing with private [tort] claims supports the conclusion that courts of law are capable of
making the types of judgment concerning causation and magnitude of injury necessary to accord
meaningful compensation for invasion of [constitutional] rights.”240 However, this still leaves
some room for questioning how much of presumed damages should be imported into
constitutional torts—to what extent, and with what limitations. Before addressing this question, it

236

NAHMOD, WELLS, & EATON, supra note 2, at 551 (citing DOUGLAS LAYCOCK, MODERN AMERICAN
REMEDIES 201 (3d ed. 2002)).
237
Fourth Amendment Violations, supra note 12, at 193.
238
Carey, 435 U.S. at 257–59 (“[O]ver the centuries, the common law of torts has developed a set of rules to
implement the principles that a person should be compensated fairly for injuries caused by the violation of his legal
rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the
appropriate starting point for the inquiry under §1983 as well.”)
239
Specifically, in Carey, the Court does not allow presumed damages for mental and emotional distress caused
by the denial of procedural due process. Id. at 259–64.
240
Id. at 259 (citing Bivens, 403 U.S. at 409 (Harlan, J., concurring in judgment)).

47

is also necessary to delineate conflicting uses of the term “presumed damages” in the
constitutional torts jurisprudence.
A. Two Theories of Presumed Damages in Constitutional Torts
1. Non-Compensatory Presumed Damages
There has been some confusion in what presumed damages actually represent. Almost all
agree that presumed damages are damages awarded without proof of actual injury, but there are
at least two different interpretations of what the damages represent. On one hand, Professor
Dobbs has suggested that “the wrong is said to be damage in and of itself.”241 This approach can
be squared with the one taken by the district court judge in Stachura, which was later ruled
erroneous by the Supreme Court overturned. The district court judge allowed his jury to award
presumed damages with the instructions:
The precise value you place upon any Constitutional right which you find was
denied to Plaintiff is within your discretion. You may wish to consider the
importance of the right in our system of government, the role which this right has
played in the history of our republic, [and] the significance of the right in the
context of the activities which the Plaintiff was engaged in at the time of the
violation of the right.242
Professor Dobbs’ interpretation could be could be squared with these jury instructions—
both views of presumed damages center on paying the plaintiff for the wrong done without
regard to the harm actually caused. Indeed, if the jury believes that the right violated is “of
importance” in the United States, the wrong of violating such an important right is what
Professor Dobbs addresses in his interpretation. The more important the right violated, the more
damages the wrong calls for. I will refer to this as the “non-compensatory” interpretation of
presumed damages, because the damages are meant to rectify the wrongs imposed, not the
injuries sustained. This is to be contrasted with a “compensatory” interpretation of presumed
241
242

DOBBS, supra note 181.
Stachura, 477 U.S. at 303 (citing the lower court’s jury instructions at Ap. 94).

48

damages, where damages are awarded because there was actual injury, but this injury is just too
difficult to prove. Therefore, the focus of non-compensatory presumed damages are on the
wrong done; the focus of compensatory presumed damages are on the injuries sustained.
In the context of constitutional torts, the non-compensatory interpretation of presumed
damages is inconsistent with defamation doctrine, and also rejected by two major constitutional
tort cases, Carey and Stachura.243 The Stachura court chastised the district court’s approach for
focusing “not on compensation for provable injury, but on the jury's subjective perception of the
importance of constitutional rights as an abstract matter. Carey establishes that such an approach
is impermissible.”244
2. Compensatory Presumed Damages
A rejection of the non-compensatory view of presumed damages does not necessarily
imply a rejection of presumed damages in general. In compensatory presumed damage cases,
presumed damages are not awarded because the wrong is the damage in and of itself. Damages
are presumed to exist, apart from the wrong, but they are too difficult to prove, in a practical
sense.
Compensatory presumed damages are the only explanation for presumed damages in
defamation. In defamation, the Supreme Court has ruled that the “rationale of the common law
rules has been the experience and judgment of history that ‘proof of actual damage will be
impossible in a great many cases where, from the character of the defamatory words and the
circumstances of publication, it is all but certain that serious harm has resulted in fact.’”245 The

243

See Stachura, 477 U.S. at 307 (interpreting Carey, 435 U.S. at 255).
Id.
245
Dun & Bradstreet, Inc., 472 U.S. at 760 (quoting WILLIAM PROSSER, LAW OF TORTS 765 §112 (4th ed.
1978)). See also Carey, 435 U.S. at 262 (“The doctrine [of presumed damages in defamation] has been defended on
the grounds that those forms of defamation that are actionable per se are virtually certain to cause serious injury to
reputation, and that this kind of injury is extremely difficult to prove. . . Moreover, statements that are defamatory
244

49

Supreme Court does not say that defamation is a wrong that needs to be compensated in and of
itself. Instead, they assume that injury did flow from defamation, just as it would from any other
tort, but that in the special case of defamation, damages are systematically difficult to prove. This
differentiates it from the non-compensatory reading that the wrong is the injury.
The Court in Carey defends presumed damages on the grounds that in cases where they
apply, the wrong is “virtually certain to cause serious injury” and “this kind of injury is
extremely difficult to prove.”246 This is the criteria it uses to deny presumed damages for the
plaintiff: “although mental and emotional distress caused by the denial of procedural due process
itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the
difficulty of proving it is so great as to justify awarding compensatory damages without proof
that such injury actually was caused.”247
By adopting the defamation interpretation of presumed damages, which is that presumed
damages should be allowed in lieu of compensatory damages when those damages are likely to
have occurred but are difficult to prove, the Carey court rejects that idea that presumed damages
are appropriate for wrongs that are injuries in and of itself. Instead, the injury is supposed to exist
independent of the wrong—or at least is very likely to exist—but is just too difficult to prove.
The Court in Stachura reinforces the Carey interpretation of presumed damages.
Stachura explicitly rejects the district court judge’s instruction that presumed damages could be
awarded measured by the “importance” of the constitutional right, describing this as
“noncompensatory.”248 The Court defines presumed damages as “a substitute for ordinary
compensatory damages, not a supplement for an award that fully compensates the alleged
per se, by their very nature, are likely to cause mental and emotional distress, as well as injury to reputation, so there
arguably is little reason to require proof of this kind of injury either.”).
246
Carey, 435 at 262.
247
Id. at 264.
248
Stachura, 477 U.S. at 309.

50

injury”249—available for an injury that is “likely to have occurred, but difficult to establish.”250
Instead of being awarded for because the wrong itself is the injury, as the non-compensatory
interpretation suggests, presumed damages are awarded to “roughly approximate the harm that
the plaintiff” actually “suffered, and thereby compensate for harms that may be impossible to
measure.”251
The difference between the non-compensatory view of presumed damages and the
compensatory view of presumed damages is that the compensatory view only calls for presumed
damages under specific circumstances—where the injury probably did occur, but is difficult to
prove.
B. Uniting the Two Interpretations of Presumed Damages
Although the Supreme Court seems to have rejected non-compensatory presumed
damages and emphasized that damages need to be compensatory, 252 there is still a conceptual
way to award presumed damages based on the violations of rights. If the Court chooses to
consider a constitutional violation an injury in and of itself, then any constitutional violation
would constitute and injury, which would be compensable. This way, the damages would be
compensatory because they are compensating the plaintiff for an injury. This requires a legal
recasting of injury to include the violation itself.
Such a recasting is not as improbable as it may appear. Jurisprudence for right-to-vote
cases seem to perform exactly this type of recasting. In ixon v. Herndon,253 the Court held that
a plaintiff who was illegally deprived of his right to vote did suffer a compensable injury.254 The

249

Id. at 310.
Id. at 310–11 (citing Carey, 435 U.S. at 262).
251
Id. at 311 (emphasis added).
252
See, e.g., supra notes 243– 244 and accompanying text.
253
ixon, 273 U.S. at 536.
254
See id. See also Lane v. Wilson, 307 U.S. 268 (1939) (describing the Court’s holding in ixon).
250

51

Court characterized the inability to vote in a particular election as an actual injury. It did not rest
its holding on the “value” of the right to vote in the abstract, but found an injury that it felt could
be compensated for.255 This seems to suggest that the Court is applying the compensatory view
of presumed damages—the damages pay for the actual deprivation of the vote as an injury; it
does not attempt to quantify the value of the right to vote in the abstract. However, it is also noncompensatory in the sense that the focus is on the deprivation of the right to vote, and not on any
external or extrinsic injuries beyond the violation.
The line of cases preceding Nixon also reveals that Courts speaking of damages in terms
of an injury that is the violation itself:
In the eyes of the law, [the] right [to vote] is so valuable that damages are
presumed from the wrongful deprivation of it without evidence of actual loss of
money, property, or any other valuable thing, and the amount of the damages is a
question peculiarly appropriate for the determination of the jury, because each
member of the jury has personal knowledge of the value of the right.256
Although the majority opinion in Stachura characterizes the right-to-vote cases as involving
“nothing more than an award of presumed damages for a nonmonetary harm that cannot easily
be quantified” despite speaking of “damages for the value of the right to vote,”257 this is not
wholly consistent with the language in Wayne that presumed damages arise because the right to
vote “is so valuable.”258
VI.

PRESUMED DAMAGES: FROM DEFAMATION TO CONSTITUTIONAL TORTS

The motivation behind presumed damages in the defamation context is that harm done to
the plaintiff’s reputation will likely be hard to trace or prove. It would be potentially impossible
for the plaintiff to demonstrate who has read the defamatory material, and as a result, change

255

See ixon, 273 U.S. at 540 (“the petition… seeks to recover for private damage.”).
Wayne v. Venable, 260 F.64, 66 (8th Cir. 1919).
257
Stachura, 477 U.S. 299 n.14.
258
Wayne, 260 F.64 at 66.
256

52

behavior with respect to the plaintiff. So in order to compensate injury at all, the Supreme Court
has ruled that proof of actual harm is not required.259
“If violations of substantive constitutional rights do not produce harm by their insidious
effects on unknown persons, it may be misleading to compare them to defamation.”260 But this
does not mean that presumed damages are necessarily inappropriate. “Isn’t the harm resulting
from a constitutional violation even more inchoate, even harder to prove, and consequently more
deserving of presumed damages, than the harm to reputation produced by libel per se?”261
This question brings up a noteworthy point: most advocates of applying presumed
damages to constitutional torts do not begin from a defamation-type rationale of the empirical
difficulty of proof. Instead, they focus on the importance of the rights being protected by
constitutional torts.
A.

Theories of Presumed Damages Not Based in Common Law
1. Special Interests
Carey and Stachura bar juries from awarding damages based on the abstract, inherent

value of a constitutional right.262 However, lower courts have sometimes understood substantive
constitutional rights to create special interests beyond those of normal common law torts.263 In
Hobson v. Wilson, the Court of Appeals for the District of Columbia Circuit listed the injuries
compensated under common law to include emotional distress, loss of reputation, and diminished
earning capacity.264 But in addition to this list, they added the injury of losing one’s rights to

259

Dun & Bradstreet, Inc., 472 U.S. 749, 760–61. See also NAHMOD, WELLS, & EATON, supra note 2, at 550.
NAHMOD, WELLS, & EATON, supra note 2, at 550.
261
Id.
262
See supra Part III.B.
263
See, e.g., Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985); Davis v.
Village Park II Realty Co., 578 F.2d 461 (2d Cir. 1978).
264
Hobson, 737 F.2d at 10.
260

53

“associational privacy” and to engage in political protest.265 This has been cited as an example of
the special interests theory, where constitutional “rights create special interests apart from those
recognized as compensable at common law.”266
Another example of the special interests theory is in City of Watseka v. Illinois Public
Action Council,267 a First Amendment case where the Seventh Circuit Court of Appeals affirmed
the lower court’s award of damages not only for the loss of solicitation revenue but also for the
“deprivation of the group’s right to spread its political message through canvassing.”268
The special interests theory is consistent with Justice Marshall’s concurring opinion in
Stachura, which he wrote to “emphasize that the violation of a constitutional right, in proper
cases, may itself constitute a compensable injury.”269 This concurrence was joined by Justices
Brennan, Blackmun, and Stevens.270
2. Individual/Societal Interests
The Court in Carey v. Piphus struck down the defendant’s argument that “damages
should be presumed to flow from every deprivation of procedural due process.”271 Instead, the
Court found that if injury “caused by the denial of procedural due process itself is compensable
under § 1983,” that “neither the likelihood of such injury nor the difficulty of proving it is so
great as to justify awarding” presumed damages—that is, “compensatory damages without proof
that such injury actually was caused.”272 This language “suggests strongly that procedural due
process rights do not protect specially compensable injuries apart from the injuries compensable

265

Id.
See Hess, supra note 26, at 296–97.
267
796 F.2d 1547 (7th Cir. 1986), aff’d, 479 U.S. 1048 (1987).
268
Illinois Public Action Council,796 F.2d at 1547; Hess, supra note 26, at 298.
269
Stachura, 106 S. Ct. at 2546 (Marshall, J., concurring).
270
Id.
271
Carey, 435 U.S. at 259–64.
272
Id. at 264.
266

54

at common law,” but the “task of dividing rights into two groups based on whether they protect
special compensable constitutional interests is not easy.”273
Commentators have noted that “the procedural/substantive distinction can only be a
starting point in drawing a line between rights that do and rights that do not give rise to
constitutional, compensable interests.”274 Furthermore, Stachura makes it clear that Carey “does
not establish a two-tiered system of constitutional rights, with substantive rights afforded greater
protection than ‘mere’ procedural safeguards.”275 Commentators have struggled to articulate the
implications of Stachura.
Stephen Andrew Hess, for example, has suggested that the “threshold question in
evaluating the interests protected by a particular right is whether the right is instrumental.”276 If
the right is instrumental, then “the presumption of damages for its mere violation and the claim
that the interests it protects” are specifically “barred” by Carey.277 This is because even when
one’s instrumental rights are violated, the “ultimate interests such rights are designed to protect”
still remain unharmed.278 As the Court says in Carey, “[r]ights, constitutional and otherwise, do
not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests, and
their contours are shaped by the interests they protect.”279
Hess—as well as the Carey court—considers all procedural due process rights as
instrumental.280 But Hess notes that procedural due process rights “are not the only instrumental
rights” that might be at issue in a Section 1983 action. For this, he gives the Carey example of

273

Hess, supra note 26, at 298.
Id.
275
Stachura, 477 U.S. at 309.
276
Hess, supra note 26, at 299.
277
Id. (“The heart of Piphus’s holding is that procedural due process rights are merely instrumental. . .”)
278
Id.
279
Carey, 435 U.S. at 254. See also Hess, supra note 26, at 299.
280
Carey, 435 U.S. at 254; Hess, supra note 26, at 299 (“It is easy to identify procedural due process rights as
being instrumental.”)
274

55

students who are suspended without due process, but whom would have been suspended even if
they did have due process, and also the hypothetical of a police search that was made on
probable cause but violated the Fourth Amendment due to some flaw of the warranting
process.281 Hess also determines that equal protection rights are instrumental, because they
“reply on external standards in determining what the law permits” and “only ensure that people
are treated equally” but “set no independent standard for the substantive manner in which those
people may be treated.”282
On the flip side, just because a right is substantive “should not by itself compel the
conclusion that the interests it protects are compensable.”283 The next test should be whether the
interests protected by the rights are “individual interests” rather than “societal interests.”284 A
right protects an individual interest when the “violation of the right harms primarily an individual
or a discrete group of people.285 For example, the right not to be subjected to cruel and unusual
punishment is a right that protects an individual interest.286 A right protects a societal interest
when the right operates “to prohibit certain governmental activity which is harmful to society in
general.”287 An example is the first amendment right to a religion-neutral government.288
The plaintiff should not be allowed to recover for harms to societal interests, according to
Hess, because of two reasons—first, because the “class of victims is necessarily every citizen
281

See Hess, supra note 26, at 299–300.
Id. at 300 (“Although equal protection rights may not be considered procedural per se, the reasoning of
Piphus implies that the injury suffered by the victim of an equal protection violation does not include any special
constitutional interest, but only the loss of the privileges afforded others.”)
283
Id.
284
Id. at 302 (“Therefore, just as it is necessary to distinguish instrumental from substantive rights, it is also
necessary to distinguish societal from individual rights. As a practical matter, the rules concerning standing serve as
an important filter to preclude plaintiffs from recovering individually for harm to societal interests. Although rules
governing standing and rules governing the compensability of deprivations under section 1983 rise out of different
concerns, they are related insofar as each focuses on the existence of some cognizable injury to the plaintiff, which
in turn determines the elements of damages one may plead or the grounds upon which one may base standing.”)
285
Id. at 300.
286
Id.
287
Id. at 300-301.
288
Id.
282

56

within the jurisdiction” of the United States, and second because “from an economic perspective
the distribution of damages” does not actually compensate anyone, “it merely redistributes the
loss by taking money from one of the public’s pockets and putting it into another.”289
However, the distinction between individual interests and societal interests would need to
be determined on a case-by-case basis. For example, the First Amendment protects both the
“individual, immediate, specific, and readily identifiable political interest embodied in the right
to vote or to make open political speeches,” but also the different “public, removed, broad and
uncertain political interest embodied in the Establishment Clause requirement that governments
not assist or entangle themselves in the affairs of any religion.”290 However, the difference is not
exactly clear, because the First Amendment right to public political speech might be considered
societal under the argument that it allows the public intellectual discourse for the smooth
governing democracy, and that it is not for the sake of the individual who wishes to speak.
B. Defamation Characteristics and Constitutional Torts
The theories of presumed damages based on special interests and societal interests both focus
on the importance of the right being violated, either to the individual or to the society at large.
However, these depart from the original questions associated with presumed damages—that is,
the reasons why presumed damages are allowed at all in defamation.
Allowing presumed damages alleviates the burden for the plaintiff of having to prove the
existence and the magnitude of his injuries. So presumed damages should only be awarded not

289

Id. at 301 (“Harm to such societal interests should be disallowed as separate elements of an individual’s
damages…).
290
Id. at 304 (criticizing the court’s decision in Bell v. Little Axe Independent School District, 766 F.2d 1391
(10th Cir. 1985) for awarding substantial damages for violation of Establishment Clause rights when a public
elementary school failed to prohibit the holding of religious meetings. The court compared the Establishment Clause
to the First Amendment protection for freedom of speech, and then permitted presumed damages because precedent
had allowed them for First Amendment violations. Hess argues that the analogy is tenuous because the
Establishment Clause protects a societal interest, and the First Amendment an individual interest.) .

57

only when the injury is difficult to prove, but also where the injury is so likely to have
occurred—given the constitutional violation—that its existence may be inferred.
The question of whether damages from the violation of a particular should be presumed
depends on “whether harm to some compensable interest is likely to accompany the violation
and, if so, whether the existence or magnitude of the injury is not readily susceptible to proof.”291
1.

Inference of Injury

When a right protects an individual interest, rather than a broad societal interest, it is
more likely that the right cannot be violated without injuring the underlying interest with respect
to the individual plaintiff. For example, the eighth amendment’s prohibition against cruel and
unusual punishment and the fourth amendment’s prohibition against unreasonable searches and
seizures are designed to protect individual interests rather than broad societal interests (to be
contrasted with, for example, the first amendment’s prohibition against a religiously-oriented
government. Because of this, the violation of cruel and unusual punishment or unreasonable
search and seizure are cases where the existence of the violation might imply the existence of
injury—and therefore, be better candidates for presumed damages may be awarded by a jury.292
Carey makes it clear that damages for mental distress cannot be presumed because the
students whose due process rights were violated were not actually aware that their rights were

291

Id. at 304–305 (“[B]y attempting to reason wholly by analogy, Bell circumvented consideration of the two
factors important to presumed damages at common law: the likelihood that the injury would accompany all similar
violations, and the difficulty of proving the existence or magnitude of such injuries.”).
292
See Hess, supra note 26, at 308 (“The interests protected by the eighth amendment’s prohibition against
cruel and unusual punishment, the fourth amendment’s prohibition against unreasonable searches and seizures, and
the first amendment’s prohibition against restrictions on one’s right freely to exercise his religion cannot be violated
in most cases without injuring the underlying interests. In those types of cases, since the violation itself is
established by proving some injury to the protected interest, the jury satisfies the first branch of the presumed
damages doctrine in being likely to accompany the violation.”)

58

being violated.293 However, this does not preclude all constitutional violations from being
considered injuries in and of themselves.
If we consider the violation of the constitutional right to be the injury itself,294 then the
inference of injury question is answered: all violations will imply injuries.
2. Difficulty of Proof
In common law defamation, the rationale behind presumed damages is that harm to
reputation is systematically difficult to prove.295 In the context of constitutional torts, when
courts are being hostile to presumed damages, they often emphasize the feasibility of proof for
the plaintiff.296 The question is whether this common law principle should properly apply in the
context of constitutional torts.
In 1983 actions, the “magnitude of damages may not easily be demonstrated… as is clear
from Stachura and its common law predecessors.”297 No court has suggested how proper jury
instructions should actually be worded to allow for presumed compensation to constitutional
violations, or if there is a systematic way to differentiate adequate proof from inadequate proof.

293

Carey, 435 U.S. at 263.
See Part V.B, supra.
295
Carey, 435 U.S. at 262 (citing Gertz, 418 U. S. at 418 ) (“As we have observed in another context, the
doctrine of presumed damages in the common law of defamation per se ‘is an oddity of tort law, for it allows
recovery of purportedly compensatory damages without evidence of actual loss.’ The doctrine has been defended on
the grounds that those forms of defamation that are actionable per se are virtually certain to cause serious injury to
reputation, and that this kind of injury is extremely difficult to prove.”)
296
Id. at 263–64 n. 19 (explaining that “we foresee no particular difficulty in producing evidence that mental
and emotional distress actually was caused by the denial of procedural due process itself. Distress is a personal
injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect
on the plaintiff.”)
297
Hess, supra note 26, at 309 (noting, as an example, that Stachura expressly recognized and approved cases
that permitted substantial presumed damages for voting right violations).
294

59

Hess notes, with disapproval, that under Carey298 the “articulate plaintiff or one who is
vocal about his feelings after the violation” may “fare much better” than an “inarticulate plaintiff
who feels just as outraged by an identical violation, but who keeps his anger to himself.”299
While Stachura does not ban all presumed damages in constitutional torts (for example, it
cites with approval cases involving voting rights violations), it does emphasize that the focus of
the proof depends on the correct characterization of the right in question:
The instructions at issue here cannot be squared with Carey, or with the principles
of tort damages on which Carey and § 1983 are grounded. The jurors in this case
were told that, in determining how much was necessary to "compensate
[respondent] for the deprivation" of his constitutional rights, they should place a
money value on the "rights" themselves by considering such factors as the
particular right's "importance . . . in our system of government," its role in
American history, and its "significance . . . in the context of the activities" in
which respondent was engaged. These factors focus, not on compensation for
provable injury, but on the jury's subjective perception of the importance of
constitutional rights as an abstract matter.300
The key is that juries need to focus on the systemized harm that the plaintiff was thought to have
suffered, not to award based on the importance of the constitutional right. For example, the
students in Carey would probably have been suspended even with due process, which implies a
lowered likelihood that their injury was great. However, the importance of due process in our
democracy is a great one. But this reasoning would shift the plaintiff’s burden from having to
prove that he was actually injured to having to prove that (1) the particular type of constitutional
deprivation systematically or is likely to injure, and (2) that the proof of actual injury is difficult.
This seems like a substantial burden, not much better than having to prove actual damages. This
is consistent with Hess’s idea that:

298

Carey, 435 U.S. at 264 n.20 (ruling that “[a]lthough essentially subjective, genuine injury in this respect
may be evidenced by one’s conduct and observed by others. Juries must be guided by appropriate instructions, and
an award of damages must be supported by competent evidence concerning the injury.”).
299
Hess, supra note 26, at 310.
300
Stachura, 477 U.S. at 308.

60

[P]erhaps the most important lesson is that the presumption of damages in any
context is likely to depend on the plaintiff’s ability to prove that the violation of
his rights may be characterized in the proper way so as to invoke the doctrine of
presumed damages. Yet by that time the victim’s attorneys are able to clear all the
barriers imposed by the courts to presumed damages they might well find that
their time would have been better spent trying to prove the plaintiff’s damages.301
Case law shows that courts believe most constitutional tort plaintiffs have the ability to show
injury.302 Even where there is no physical harm, opinions have suggested that plaintiffs may
provide medical affidavits to show emotional harm or personally testify. Unlike in defamation
cases—where plaintiffs are trying to show harm to reputation, which cannot be verified with
affidavits—in constitutional tort cases, actual harm suffered should be verifiable in most cases.
This means that if we subscribe to compensatory presumed damages, plaintiffs should not need
presumed damages in cases where they can prove injury.
Instead, if we consider the violation of the constitutional right to be the injury itself,303
then there really is no difficulty of proof because once liability is proven, so is injury. So there is
no difficulty of proof, and presumed damages would not be needed, because plaintiffs can
actually prove their injuries—simply by proving liability.
Even if we do this, it is unclear how damages are to be measured. Courts in both
defamation and constitutional tort cases have found it unpalatable when presumed damages are
based on the abstract value of the right being violated—judges that have tried to award damages
based on the value of the right infringed have found themselves swiftly reversed.304 The thought
of awarding damages based on the value of any constitutional rights seems to invite unfettered
jury discretion. While jury discretion—that jury punishment of unpopular defendants—was also
a fear in defamation cases, they were lessened to the extent that the juries were supposed to
301

Hess, supra note 26, at 311.
See, e.g., Stachura, 477 U.S. at 305.
303
See Part V.B., supra.
304
See, e.g., Stachura, 477 U.S. at 309.
302

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estimate the amount of actual damage done to the plaintiff’s reputation or business. They were
not estimating the value of freedom from defamation as a right in and of itself.
Another approach—one that the courts in the right-to-vote cases implicitly took—is that
the immense value of the constitutional right opens the door for applying presumed damages, but
does not actually determine how large the presumed damages are. In other words, because the
right to vote is so valuable, according to the Wayne court,305 presumed damages are warranted.
But, as the Stachura court noted in its interpretation of Wayne v. Venable, the actual calculation
for presumed damages accounts for the actual loss suffered by the plaintiff, not the abstract value
of the right to vote.306
The reason for the strong judicial backlash against presumed damages is generally fear of
the first scenario—an award of damages based on the abstract value of the right being violated.
The magnitude of damages appears untenable. The second scenario—presenting an award of
damages based not on the value of the right being violated, but on the harm done to the plaintiff
in having such a right violated—may be more reasonable. The greatest difficulty would be
calculating the harm, given the premise that every violation presents harm to the plaintiff.
Where the plaintiff knows that his constitutional rights have been violated, he can attain
medical affidavits or testify about mental distress in the same way that a common law tort victim
would. Presumed damages would be unnecessary here, because the plaintiff can be
compensated—and the defendant deterred—through normal tort damages. In cases where the
plaintiff did not know that his constitutional rights were violated, but learned afterwards, the
question is whether the fact of violation was still an injury to the plaintiff, and whether it should
be compensated in court. This might be an area where flooding the courts could be an actual

305
306

See Wayne, 260 F.64 at 66.
Stachura, 477 U.S. 299 n.14.

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concern, although this is ultimately an empirical question on how frequently this type of
violation happens—and just as importantly—what proportion of these are brought to court.
3. Contrasting Constitutional Torts and Defamation
The right to be free from defamation is a valuable right, but arguably not as valuable as
most of the rights the constitutional tort actions protect. Instead, defamation presumed damages
seem to circle around difficulty of proof. Unlike defamation, constitutional tort actions protect a
varied number of rights that are so important that they are enshrined in the United States
Constitution, as well as addressed by Congress in the statute for the cause of action. Presumed
damages in constitutional torts then—to the extent that it is accepted—circles around not
difficulty of proof, but on the importance of the rights being protected.
It is true that some injuries from the deprivation of constitutional rights are notoriously
difficult to prove—for example, if a policeman illegally searches a citizen’s home and finds
nothing there. However, the language of the courts advocating presumed damages generally do
not talk about burden of producing proof as much as they emphasize the importance of the
constitutional rights at stake. This suggests that a blanket application of defamation-like
presumed damages for constitutional torts would be incorrect, because the underlying
motivations are incorrect.
There is also an argument to be made that each constitutional violation is harm in and of
itself to the plaintiff; regardless of whether extra emotional or physical injury was made; that the
fact that the plaintiff was wronged is a compensable injury in and of itself. This differs from the
non-compensatory theory of presumed damages because the damages do not measure the value
of the right being violated; but instead measures the amount of harm done to the plaintiff through
the violation of the right. For example, the right to free speech—for society—might be very large

63

because of the importance of the marketplace of ideas in a democracy, academic growth, and
debate. But in a specific case, the unconstitutional deprivation of the freedom of speech to an
individual plaintiff might cause much less harm than the abstract value of the right. For example,
if a protestor is unconstitutionally silenced in a specific situation, he may be harmed because his
right was violated, but the magnitude of the harm would be limited to the value he would have
received from speaking on that occasion.
C. Defamation as an Empirical Problem, Constitutional Torts as a Legal Problem
The main reason common law courts allowed for presumed damages in defamation cases
was because in defamation cases, it was systematically difficult for plaintiffs to produce proof of
injury. The “rationale of the common law rules has been the experience and judgment of history
that ‘proof of actual damage will be impossible in a great many cases where, from the character
of the defamatory words and the circumstances of publication, it is all but certain that serious
harm has resulted in fact.’”307 Therefore, in order for defamation to be an actual tort, presumed
damages ensured an actual remedy could be awarded.308
In constitutional torts, the language has suggested that presumed damages are used in two
ways: non-compensatory and compensatory.309 The non-compensatory type of presumed
damages seems to have nothing to do with the difficulty of proving harm or the defamation
analogy. Instead, it seeks to replace the metric of damages. The Stachura court expressed an
aversion to the trial court jury instructions that permitted “the jury to award damages based on its
own unguided estimation of the value” of constitutional rights.310 The Court emphasized that the

307

Dun & Bradstreet, Inc., 472 U.S. at 760 (quoting WILLIAM PROSSER, LAW OF TORTS 765 §112 (4th ed.

1978)).
308

Id. at 761 (“further[ing] the state interest in providing remedies for defamation by ensuring that those
remedies are effective.”).
309
See supra Part V.A.
310
Stachura, 477 U.S. at 304–05.

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“instructions plainly authorized. . . two distinct types of ‘compensatory’ damages: one based on
respondent’s actual injury according to ordinary tort law standards, and another based on the
‘value’ of certain rights.”311 The latter right was struck down.
In contrast, the compensatory type of presumed damages seeks to approximate the
amount of damages the plaintiff could receive if he could prove his injury. In defamation cases,
the reason we do this is because the plaintiff cannot prove his injury because the injury involves
a large number of unknown individuals who are not party to the lawsuit (people who allegedly
are deterred from doing business with the plaintiff due to the defendant’s publications, for
example.)
In contrast, in constitutional torts, the injury is hard to prove because the injury might be
the violation of the right itself. Any actual physical, mental, or emotional harm done to the
plaintiff can be verified by testimony or affidavit;312 the remaining work—which potentially calls
for presumed damages—is not physical, mental, or emotional harm done to the plaintiff. What
ostensibly remains is harm done by the violation itself. For example, in the right-to-vote cases,
the harm done to the plaintiff is the deprivation of the right to vote in a particular election.313
The need for presumed damages arises not from the difficulty of proof—as in the
defamation cases—but from the absence of any method of proof. Hypothetically, if the plaintiff
in a defamation case had unlimited time and resources, he could hire private detectives to track
the circulation of the defamatory material, question the people who read the material about
whether the material changed their willingness to deal with the plaintiff, and present these

311

Id. at 305 (“The damages instructions were divided into three distinct segments: (i) compensatory damages
for harm to respondent, (ii) punitive damages, and (iii) additional ‘compensat[ory]’ damages for violations of
constitutional rights. No sensible juror could read the third of these segments to modify the first.”).
312
See id. The Supreme Court has expressed the view that this type of damage could be proven through
testimony or affidavit without undue hardship on the plaintiff.
313
See, e.g., ixon, 273 U.S. at 536.

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surveys to a judge. But because plaintiffs typically do not have these resources; and because
employing these resources would probably be an inefficient allocation of society’s wealth,
presumed damages are allowed in defamation cases.
In contrast, in constitutional torts cases, the issue is not the expense of proof to the
plaintiff. Even if the plaintiff had unlimited funds, it is not at all clear how those resources could
be directed in a way that proves he was harmed intrinsically. The problem is not a pragmatic one,
but a conceptual one. If he can be compensated for the harm done to him, he must establish that
there was a cognizable injury; but in order to do this, he must argue that the violation of the right
in and of itself was a cognizable injury. This is a conceptual legal problem, not a pragmatic one.
Compensatory presumed damages, then, play a different role in constitutional torts than they do
in defamation, and need different support.
In the cases where compensatory presumed damages are approved, the language tends to
focus on the importance of the rights being protected. For example, one court held that “[i]n the
eyes of the law, [the] right [to vote] is so valuable that damages are presumed from the wrongful
deprivation of it without evidence of actual loss.”314 In constitutional torts, presumed damages
arise not from difficulty of proof, but from the importance of the right being violated, and the
lack of alternative channels to remedy the right. In other words, in defamation, presumed
damages are used because actual harm is difficult to prove. In constitutional torts, the existence
of actual harm turns on whether the violation of a right can be characterized as actual harm—a
legal question.
Allowing presumed damages for constitutional torts would raise two additional problems.
First, the amount of damages is difficult. If the harm done is the violation of the right—
independent of any bodily, mental, or emotional side effects—then the plaintiff has to be
314

Wayne v. Venable, 260 F.64, 66 (8th Cir. 1919).

66

compensated for the harm. But it is difficult to measure what the harm actually is. For example,
courts have clearly ruled against non-compensatory damages based on the importance of the
right being violated. 315 If courts had allowed this type of valuation, then victims of infringements
of more important rights would be awarded larger damages then victims of infringements of less
important rights. Other alternatives are to charge the defendant a flat fee for any violation of
constitutional rights regardless of the importance of the right being violated. But this would
cause deterrence problems (a defendant would not be proportionately deterred from violating a
proportionately more important right), as well as conceptual problems (a flat fee seems directly
adverse to the idea of compensation to the plaintiff for actual harm.)
The magnitude of damages problem was noted in Stachura, where the Court did not want
to allow juries to “award arbitrary amounts without any evidentiary basis, or to use their
unbounded discretion to punish unpopular defendants.”316 However, this is not a unique concern:
as in common law torts, damage awards in constitutional cases are reviewable by the trial judge
and appellate courts. If the court finds that the jury overcompensated the plaintiff, it may reduce
the award; likewise, if it finds that the jury undercompensated the plaintiff, it may overturn the
verdict for inadequacy.
This has been done. In the gender discrimination case Knussman v. Maryland, the Fourth
Circuit Court of Appeals found that the plaintiff’s emotion distress damages of $375,000 was
excessive where the relationship between the constitutional violation and the distress was
“attenuated.”317 The Court emphasized that the plaintiff could only recover for damages

315

See, e.g., Stachura, 477 U.S. at 304–05.
Stachura, 477 U.S. at 310 (citing Gertz, 418 U.S. 323 (1974)).
317
272 F.3d 625 (4th Cir. 2001) (“Apart from this litigation-related stress, Knussman's evidence of emotional
distress is insufficient to support an award of $375,000. . . We conclude the award of $375,000 is not proportional to
the emotional distress caused by the constitutional violation, as opposed to the litigation of Knussman's claims, and
is clearly against the weight of the evidence.”).
316

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sustained by the constitutional violation itself, and not for litigation-related distress or for distress
caused by the employment’s general internal grievance process. The jury award was vacated and
the case remanded to the district court to determine damages.
Courts should not underestimate their power to review jury awards. Awards may be not
only limited, but also overturned for inadequacy in other cases. In Preyer v. Slavic,318 the pro se
plaintiff (a state prisoner) introduced evidence of significant injuries from several episodes of
severe beating by prison guards.319 Although the jury returned a verdict of liable for four of the
prison guard defendants, they nonetheless only awarded nominal damages of $1.00 and no
compensatory or punitive damages for the plaintiff.320 The District Court, on its own motion,
vacated the damages award and ordered a new trial for the issue of damages, holding that the
damages was “against the weight of evidence” and “inadequate and legally erroneous.”321 The
Third Circuit noted that the “award for $1.00 is not easy to reconcile with the uncontested
evidence of injuries” introduced, and subsequently affirmed the District Court’s order for a new
trial.322
Another way courts could limit presumed damages is to require some sort of threshold for
the defendant, like the actual malice threshold in defamation.323 For example, courts could
require that plaintiffs demonstrate that the defendant knowingly or intentionally violated his
right. However, as Hess points out, this creates a paradox because by overcoming the

318

251 F.3d 448 (3d Cir. 2001).
See generally id.
320
Id.
321
Id.(“In his written opinion, the District Judge recognized that he had erroneously instructed the jury on
nominal damages and failed to inform it of the availability of compensatory damages for pain and suffering.”).
322
Preyer, 251 F.3d at 448.
323
See supra Part IV.C.
319

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defendant’s immunity defense, the plaintiff has already established that the right violated was
one that a reasonable person would have known about.324
The second problem is that in a common law tort case where a defendant negligently
hurts a plaintiff so that the plaintiff requires treatment at the hospital, the defendant has to pay
the hospital bills. However, with the exception of punitive damages for cases of gross negligence
and other specific instances, the defendant does not pay separate damages for the intrinsic
violation of the plaintiff’s right. It is not—on its face—obvious why constitutional torts should
deviate from the common law on this point.
As a result, all of the reasons that make presumed damages appropriate in defamation
cases are absent from constitutional tort cases. Courts looking to common law doctrines in
constitutional tort cases cannot therefore be justified in allowing presumed damages, because the
plaintiff faces entirely different problems in constitutional torts that he does in defamation; in the
latter, an empirical burden, in the former, a legal burden. In all of tort law, defamation is an
“oddity”—it is the only tort that does not require a showing of injury for damages. Unless
constitutional torts can be justified in the same way, there should be no presumed damages, if we
take seriously the application of tort law to the field of constitutional torts.
Rather than asking whether a constitutional tort plaintiff can prove actual harm in a case
where there is no bodily, mental, emotional, or property damage, the more practical question is
to ask whether there is a large number of constitutional tort plaintiffs who do not suffer provable
bodily, mental, emotional or property damage, but need to resort to presumed damages in order

324

See Hess, supra note 26, at 308 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (noting that in most
cases, public officials enjoy immunity from Section 1983 damages unless their actions “violate clearly established…
constitutional rights of which a reasonable person would have known.” This means that if the plaintiff has already
overcome the immunity bar, the plaintiff has already proven that a reasonable person would have known about the
constitutional right that was violated. The plaintiff could argue that this implies a high likelihood that the plaintiff
himself was aware that his right was violated, which caused mental distress.)

69

to collect damages at all. If there are a large number of these plaintiffs, the next question is
whether the legal system in society desires to compensate any or all of them. If we do, then
presumed damages may be appropriate in the constitutional tort setting.325
In Carey v. Piphus the Court wrote that, “to further the purpose of § 1983, the rules
governing compensation” should be “tailored to the interests protected by the particular right in
question”, just as the common law rules of damages were “defined by the interests protected in
the various branches of tort law.”326 However, under tort law, damages are not typically defined
by the interests protected, but by the harm imposed on the plaintiff. This is the essence of
compensatory damages. So the Court here seems to mischaracterize the nature of tort law.
However, the Court proceeded to express agreement “with Mr. Justice Harlan that ‘the
experience of judges in dealing with private [tort] claims supports the conclusion that courts of
law are capable of making the types of judgment concerning causation and magnitude of injury
necessary to accord meaningful compensation for invasion of [constitutional] rights.’”327 Here,
the Court tries to draw a direct analogy from traditional tort law to constitutional tort law: if the
judges have experience dealing with enough private tort claims, then they should be able to
determine the causation and magnitude of injury necessary to accord meaningful compensation.
It is up to the judges to make conclusions about the injuries of the plaintiffs.

325

This is a somewhat backwards approach, because it defines actual harm based on whether or not we want the
plaintiff to be compensated, but conforms with much of defamation law. In defamation, plaintiffs find it difficult to
prove their cases, but we have determined that at least some of their cases are meritorious and should not be
categorically precluded. Therefore, we allowed presumed damages. If we decide that the constitutional tort cases are
meritorious, then presumed damages may be necessary, but only if there is no other recourse for proving damages.
326
Carey, 435 U.S. at 258–59. The Court proceeds to express agreement “with Mr. Justice Harlan that ‘the
experience of judges in dealing with private [tort] claims supports the conclusion that courts of law are capable of
making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful
compensation for invasion of [constitutional] rights.’” Id. at 259 (citing Bivens, 403 U. S. 409 (Harlan, J., concurring
in judgment)).
327
Id. at 259 (citing Bivens, 403 U. S. 409 (Harlan, J., concurring in judgment)).

70

It may be within their jurisdiction to decide that the pure violation of a constitutional
right is an injury. This is ostensibly what happened in the right-to-vote cases. However, this
would not be an example of presumed damages because in such a case, there would be a showing
of an injury—the violation itself. If the violation itself is the injury, then injury has been proven
and presumed damages are no longer needed.
D. Summary of the Inapplicability of Presumed Damages to Constitutional Torts

There exists a
constitutional violation.
No mental, physical,
emotional or property
harm accompany the
violation.
Mental,
physical,
emotional or
property harm
accompany
the violation.

Noncompensatory
damages
(damages that
have nothing to
do with extent
of injury.)

Compensatory
damages.

Inference of injury. What
injury is being compensated?
There is no mental, physical,
emotional or property harm
accompanying the violation.

Injury can
be proven.

Presumed
damages are
unnecessary.

Categorically
barred in
Stachura and an
unreasonable
departure from
torts law not
rooted in
defamation or
any other
doctrine.

The violation itself must be
the injury.

Difficult of proof. Proving
violation = proving injury.
No difficulty of proof.

Presumed damages are
unnecessary.
71

VII.

CONCLUSION

Damages have been one of the most important and debated issues in constitutional tort
jurisprudence. Constitutional torts were created for the purpose of compensating “persons for
injuries caused by the deprivation of constitutional rights” as a “species of tort liability”.328 The
question is whether presumed damages are a good way to achieve this compensation function of
constitutional torts.
Stachura highlighted two types of concepts of presumed damages.329 In Stachura, the
Court struck down trial instructions that “plainly authorized. . . two distinct types of
‘compensatory’ damages: one based on respondent’s actual injury according to ordinary tort law
standards, and another based on the ‘value’ of certain rights.”330 After Stachura, circuit courts
were split about whether presumed damages may be allowed, or are categorically barred.331
Presumed damages have been suggested as a means of bringing “more consistency and
equity” to damage awards for constitutional torts,332 and many constitutional tort cases discuss
defamation as the root of presumed damages, so this article set out to apply the principles of
presumed damages in defamation to constitutional torts.
When a defamation analogy is examined, it becomes clear that the reasons that make
presumed damages appropriate for defamation are absent from the constitutional tort cases. This
is because in cases where there is injury beyond the violation itself, plaintiffs may attempt to
show bodily, emotional, mental, or property harm through testimony, witnesses, and affidavits—
in these cases, presumed damages are unnecessary. In cases where there is no injury beyond the
328

Carey, 435 U.S. at 253 (citing Imbler v. Pachtman, 424 U.S. 409, 417 (1976)).
477 U.S. 299 (1986).
330
Id. at 305 (“The damages instructions were divided into three distinct segments: (i) compensatory damages
for harm to respondent, (ii) punitive damages, and (iii) additional ‘compensat[ory]’ damages for violations of
constitutional rights. No sensible juror could read the third of these segments to modify the first.”).
331
NAHMOD, WELLS, & EATON, supra note 2 at 549.
332
Fourth Amendment Violations, supra note 12 at 193.
329

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violation itself, there is no clear reason arising from the common law of defamation to suggest
that presumed damages are appropriate. There are simply too many differences between the
defamation context and the constitutional tort context to justify using presumed damages.
The scholarship suggesting that presumed damages are appropriate for constitutional torts
instead tend to argue about the importance of constitutional rights or the inherent harm of the
violation. If this is correct, then courts should formulate the violation itself as an injury, as they
have done in the right-to-vote cases. But whether or not violations are formulated as injuries,
presumed damages are inappropriate. If violations are compensable injuries, then there is no
difficulty of proof problem and regular damages, rather than presumed damages would be
appropriate. If violations are not compensable injuries, then there is no reason to believe that
showing a violation will merit an inference of injury. As a result, presumed damages would be,
once more, unnecessary.

73