In recent years, a subtle shift in constitutional tort doctrine has quietly begun to take root. In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights. This marks a dramatic change from past practices. For much of the twentieth century, a central premise in the constitutional tort field has been that the federal remedy is "supplementary" to the state remedy; constitutional tort plaintiffs have therefore been permitted to seek a remedy under federal law without regard to the availability of state remedies. Underlying this premise has been the belief that state law-usually tort law-might be "inconsistent with, or even hostile" to federal rights, or that state courts, "by reason of prejudice, passion, neglect, intolerance or otherwise, " would fail to enforce state law.
In this Article, I first demonstrate that these two beliefs are no longer sound or certain. Though I find the beliefs insupportable, I find the traditional rule remains justified. State remedies should be ignored, not because state tort law will be hostile to federal rights, ·or because state courts will be prejudiced towards litigants, but because state tort law-having developed over centuries to address interactions between private individuals--cannot reliably capture, through doctrine or theory, interactions between private citizens and government officials. Given this inherent nature of tort law, attempts to assess the availability of alternative state remedies will often be confounding and result in incorrect conclusions. Moreover, this problem is likely to be exacerbated by the sparse record available to the court at the moment these issues arise, which is typically during a motion to dismiss. Finally, relying on state remedies in constitutional tort actions is likely to have deleterious effects on state law, effects that are not offset by any federalist benefits. I conclude by considering whether certification-which would allow state courts to resolve the vexing state law questions-would resolve the problems identified. I find certification wanting and thus recommend that state remedies play no role in constitutional tort actions.
John F. Preis, Alternative State Remedies in Constitutional Torts, 40 Conn. L. Rev. 723 (2008)