Race and Reputation: The Real Legacy of Paul v. Davis

 IN Paul v. Davis, the Supreme Court of the United States rejected a due process claim for reputational harm by a plaintiff whose name appeared on a list entitled "Active Shoplifters" that was circulated to local merchants. The plaintiff had been arrested but never prosecuted for shoplifting. The plaintiff's constitutional damages claim was rejected on the ground that mere injury to reputation does not implicate a protected liberty or property interest within the meaning of the Due Process Clause. Following close on the heels of Paul, the Supreme Court decided a series of cases in which plaintiffs sought damages for deprivations of liberty or property, including Parratt v. Taylor, Daniels v. Williams, Hudson v. Palmer, and Davidson v. Can- non. In each of these cases, the Supreme Court, in various ways, further narrowed the class of constitutional damages claims that may be brought under the Due Process Clause.

 It is generally thought that the Court's holdings in these cases were driven not so much by a restrictive theory of the underlying constitutional right, but rather by concerns about the scope of the Section 198310 remedy being invoked to enforce that right-the Court feared that a more liberal interpretation of due process in constitutional damages actions would turn every tort-like injury  perpetrated by a governmental official into a federal claim, a result that would "trivializ[e] the [constitutional] right of action provided in [Section] 1983." The Court addressed that concern by narrowing the category of deprivations that count within the meaning of the Due Process Clause.

 Scholars have been relentlessly and uniformly negative in their reactions to the Supreme Court's opinion and holding in Paul and less than complimentary in response to Parratt and the cases that followed it." In addition to complaints about the Paul Court's treatment of constitutional history and precedent,' a number of critics have attacked the Court's methodology of narrowing the underlying due process right in order to limit the scope of the dam- ages remedy." A remedial problem, these scholars argue, warrants a remedial rather than a substantive solution.'" The Court's chosen solution, they complain, affects the scope of due process not only in damages actions but in other contexts that may or may not raise the same remedial concerns.