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'Regulating Privatized Government Through Section 1983'

Richard Frankel

Drexel University Thomas R. Kline School of Law

March 27, 2009

University of Chicago Law Review, Vol. 76, No. 4, 2009
Drexel College of Law Research Paper No. 2009-A-14

As governments increasingly delegate traditional public functions to private, for-profit entities, the federal civil rights statute, 42 U.S.C. Section 1983, has the potential to play an important role in encouraging private entities to respect constitutional rights when they take on public duties. That potential is undermined, however, by the prevailing view that private entities subject to Section 1983 should be exempt from the traditional tort principle of respondeat superior liability simply because the Supreme Court already has held that government entities are exempt. Conferring immunity on private entities carries significant implications, not only because of the growing privatization of government functions, but also because respondeat superior liability often is critical for fulfilling tort law objectives of deterrence and compensation.

This article examines differences regarding how private entities and government entities behave and contends that those differences justify imposing respondeat superior liability on private Section 1983 defendants even if public Section 1983 defendants remain exempt. Initially, the Supreme Court's rationale for exempting municipalities from respondeat superior liability was particular to public entities and does not justify exempting private parties from respondeat superior liability. More importantly, as a policy matter, the fact that profit-motivated private entities may be both more responsive than electorally-accountable public entities to tort liability incentives and less responsive to other non-financial constraints on behavior suggests that respondeat superior may be better suited for deterring private misconduct than public misconduct. Imposing respondeat superior liability on private parties therefore can help ensure that when private parties agree to perform important public functions, they will not diminish important constitutional values.

Number of Pages in PDF File: 68

Keywords: civil rights, torts, constitutional rights, government accountability, privatization, state action, Section 1983

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Date posted: March 28, 2009 ; Last revised: May 19, 2010

Suggested Citation

Frankel, Richard, 'Regulating Privatized Government Through Section 1983' (March 27, 2009). University of Chicago Law Review, Vol. 76, No. 4, 2009; Drexel College of Law Research Paper No. 2009-A-14. Available at SSRN: https://ssrn.com/abstract=1369363

Contact Information

Richard Frankel (Contact Author)
Drexel University Thomas R. Kline School of Law ( email )
3320 Market Street
Philadelphia, PA 19104
United States

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