Document Type

Article

Publication Title

Columbia Law Review

Publication Date

1996

Abstract

Part I of this Note explains why the present system does not allow individuals to recover damages against the federal government for violations of the Constitution. It first describes the doctrine of constitutional torts and its limitations. It then discusses sovereign immunity, and explains that Congress has retained sovereign immunity for constitutional torts. It concludes with a discussion of the Supreme Court's policy arguments for not creating a cause of action against the government for constitutional violations. Part II explores the Human Radiation Experiments as a case study in the remedial gaps created by the current scope of Bivens and sovereign immunity. It discusses the particular constitutional torts arising out of the HRE. It then attempts to demonstrate that the HRE as a whole represent a type of constitutional violation that is different in kind, not just in degree, from typical Bivens cases. It concludes that this category of cases can be better analogized to the law of torts governing large-scale injuries, labeling it "constitutional mass torts." Finally, Part III argues for judicial abrogation of sovereign immunity for these constitutional mass torts. It notes that the political branches have not acted to provide a remedy for HRE victims, leaving it to the courts to vindicate their rights. Next, it discusses the power of the Supreme Court to alter the current regime of sovereign immunity. Finally, building on the case study and responding to concerns discussed in Part I, the Note concludes with a series of threshold criteria which, if met, can guide the Court to limited, but necessary, action.

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