Review of "Constitutional Torts" by Sheldon H. Nahmod, Michael L. Wells, Thomas A. Eaton

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Book Review

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Association of American Law Schools




The most interesting issues in the field of constitutional torts, involving the legal and moral bases for the government's responsibility for injuries it causes, are the most difficult ones for lawyers to explore. The question whether, as a moral or social policy matter, governments and government officials should enjoy immunities or other defenses not available to private individuals is rarely confronted directly in judicial opinions or in scholarship on constitutional torts, yet it lurks behind many of the doctrinal issues that come up in constitutional tort litigation.1 A slight scratch on the surface of doctrines as disparate as official immunities, the role of state remedies in procedural due process, the status of agencies and officials as “persons,” the appropriate circumstances for Bivens actions,2 and the liability of municipalities for the constitutional torts of government officials reveals a murky history of sovereign immunity and related doctrines and an inarticulate sense that holding government responsible for all of its tortious conduct might be both morally necessary and economically disastrous.

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