Making Black Lives Matter: Properly Valuing the Rights of the Marginalized in Constitutional Torts

Abstract

Black lives are systematically undervalued by constitutional enforcement remedies. Section 1983 adopts, wholesale, the damages scheme from torts, which not only permits, but encourages, the consideration of race and gender to calculate actuarially “accurate” damages figures. Given that Blacks earn seventy-five percent of what white men earn on average, it’s no surprise that this results in significantly lower damages awards. This Note argues that the use of race-based actuarial tables in constitutional torts is both unconstitutional and theoretically unsound. Yet, plaintiffs rarely challenge this practice and often even stipulate to its use. This presents a puzzle—why does a bad practice go unchallenged?