Ruth Sarah Lee (Harvard Law School) has posted Unwarranted Presumptions: Common Law, Injury, and Presumed Damages for Constitutional Torts on SSRN. Here is the 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-of-injury test). Presumed damages are, therefore, rendered incompatible with constitutional torts.