The Erosion of Civil Rights and What To Do About It

Abstract

This article is a written version of The Thomas E. Fairchild Lecture given by Judge Adelman in Madison, Wisconsin in 2017. The article is divided into three sections. The first discusses the importance of Section 1983 of the United States Code as a vehicle for enforcing constitutional rights. This section also contains a brief history of the statute. The second section of the article discusses some of the ways that the Supreme Court has undermined the effectiveness of the statute. Of the many restrictions that the Court has created, the section places particular emphasis on a doctrine that has been developed relatively recently, that of qualified immunity. The section argues that the doctrine is unsupported by both law and policy. In the third section of the article, the author proposes some modifications of Section 1983 that Congress or the Supreme Court could effect to make the statute more useful, more consistent with its text and history and more protective of civil rights. Probably the most important of these changes would be to apply the tort law principle of respondeat superior to §1983 claims.