Santa Clara LawSanta Clara Law Digital CommonsFaculty PublicationsFaculty Scholarship1-1-1979Damages: A Remedy for the Violation ofConstitutional RightsJean C. LoveSanta Clara University School of Law, [email protected]Follow this and additional works at:This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted forinclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact[email protected].Recommended Citation67 Cal. L. Rev. 1242
California Law ReviewVOL. 67 DECEMBER 1979 No. 6Damages: A Remedy for theViolation of Constitutional RightsJean C. LovetOne of the most significant developments in the field of civil rightslitigation has been the emergence of damages as a remedy for the en-forcement of constitutional guarantees. In 1871, Congress created acause of action,' now codified in 42 U.S.C. section 1983,2 to redress theviolation of constitutional rights by persons acting under color of statelaw. Subsequently, in a fitting centennial celebration of section 1983'senactment, the United States Supreme Court, in Bivens v. Six UnknownNamedAgents of Federal Bureau of Narcotics,3 recognized a compara-ble cause of action against federal officials implicit in the Constitution.4The volume of section 1983 and Bivens litigation5 has steadily in-creased during the last two decades.' Lower federal courts have al-t Professor of Law, School of Law, University of California, Davis. B.A. 1965, J.D. 1968,University of Wisconsin. I am grateful to my colleagues Ed Barrett, Emma Jones, and JohnPoulos for their valuable comments on earlier drafts of this Article. I am also indebted to myresearch assistants Nancy Austin, Phil Kruger, and Janet Vining for their unceasing support.1 1. Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13.2. 42 U.S.C. § 1983 (1976) provides:Every person who, under color of any statute, ordinance, regulation, custom, or usage, ofany State or Territory, subjects, or causes to be subjected, any citizen of the United Statesor any other person within the jurisdiction thereof to the deprivation of any rights, privi-leges, or immunities secured by the Constitution and laws, shall be liable to the partyinjured in an action at law, suit in equity, or other proper proceeding for redress.3. 403 U.S. 388 (1971) (violation of fourth amendment).4. In Davis v. Passman, 99 S. Ct. 2264 (1979), the Court extended Bivens beyond the fourthamendment by implying a cause of action and a damages remedy under the equal protectioncomponent of the due process clause of the fifth amendment.5. Throughout this Article the terms "Bivens litigation" and "Bivens action" will be usedinterchangeably to describe a private action against a federal official to redress a constitutionalviolation. The word "Bivens" will be used to describe the case itself.