Congress Needs to Repair the Court’s Damage to § 1983

65 Pages Posted: 20 Nov 2010

Date Written: November 18, 2010


Today it is not unusual for a § 1983 plaintiff to establish a violation of the U.S. Constitution and resulting injuries, yet be denied damages because of the Supreme Court’s misinterpretation of the legislation. This anomaly is the result of several defenses created by the Court, including absolute and qualified immunity, the rejection of respondeat superior liability for municipalities, and the expansion of sovereign immunity, based, in part, on a misinterpretation of the Eleventh Amendment. There are several other rulings of the Court that narrow the circumstances under which private parties are subject to § 1983 liability. Refusing to exempt § 1983 actions from the usual preclusion rules, limiting the protection of federal statutes that plaintiffs attempt to enforce through § 1983, and eliminating supervisory liability have all contributed to the erosion of § 1983 and its effectiveness. In short, civil rights are often illusory.

Because there is little hope that the Court will become more friendly to civil rights plaintiffs in the near future, this Article proposes that Congress adopt corrective amendments to § 1983, designed to overrule several of the limiting decisions issued by the Court. The corrective amendments proposed will bring the statute closer to the broad goals and purposes of Congress in adopting § 1983 and treat civil rights claims as though they are at least as important as, for example, tort claims against state and local government.

Keywords: civil rights, § 1983 , restoration of civil rights, Supreme Court

Suggested Citation

Bodensteiner, Ivan E., Congress Needs to Repair the Court’s Damage to § 1983 (November 18, 2010). Texas Journal on Civil Liberties and Civil Rights, Forthcoming; Valparaiso University Legal Studies Research Paper No. 10-10. Available at SSRN:

Ivan E. Bodensteiner (Contact Author)

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States

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