Section 1983 Litigation: The Maze, the Mud, and the Madness
53 Pages Posted: 22 Apr 2015 Last revised: 10 May 2015
Date Written: 2015
This piece reflects on what I perceive to be the major analytical and practical failures of Section 1983 jurisprudence as it has been shaped by the Supreme Court since the watershed case of Monroe v. Pape. Based on 40 years of academic involvement with both judges and lawyers who struggle with the various doctrines the Court has promulgated in the wake of Monroe, I highlight those areas that have become truly unintelligible, nonsensical, and incoherent. There is a growing consensus among practitioners, scholars, and judges that Section 1983 is no longer serving its original and intended function as a vehicle for remedying violations of constitutional rights, that it is broken in many ways, and that it is sorely in need of repairs. The primary focus of this article is on the befuddled jurisprudence, “the madness,” surrounding the defense of qualified immunity. I begin, however, with some brief observations about “the maze” built to sustain the direct vs. vicarious line drawn in the context of municipal liability and “the mud” that Iqbal has deposited with respect to issues of liability of supervisors. Problems plaintiffs have manipulating through the maze of municipal liability doctrine and wading through the mud of liability standards for supervisors underscore the importance of overcoming the madness of qualified immunity if plaintiffs are to have a viable damages remedy for the violation of their constitutional rights. In the end, however, I come back to where I started in 1978, to the position I advocated following the decision in Monell, and urge the Court to relinquish its dogged adherence to the doctrine of no respondeat superior for claims brought under Section 1983.
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