Joanna C. Schwartz (University of California, Los Angeles (UCLA) – School of Law), Alex Reinert (Yeshiva University – Benjamin N. Cardozo School of Law), & James E. Pfander (Northwestern University – Pritzker School of Law) have posted Empiricism and Constitutional Torts on SSRN. Here is the abstract:
The Supreme Court has deliberately framed the law of constitutional torts as a balance between assuring redress for victims, deterring misconduct, and maintaining effective government services. Yet as the Supreme Court has shaped the contours of litigation against state and local actors (under 42 USC § 1983) and federal actors (under the Bivens doctrine), it has studiously ignored a growing body of empirical scholarship examining the ways law interacts with the behavior of police officers and other government actors. This review documents the Supreme Court’s reliance on what could be charitably described as judicial intuition and its indifference to empirical evidence about such central questions as the volume and success of constitutional tort claims, the efficacy of qualified immunity, and the way the rules of tort liability shape the conduct of government officials.
Highly recommended.