Civil Rights Without Representation

53 Pages Posted: 6 Apr 2022 Last revised: 3 Jul 2022

See all articles by Joanna C. Schwartz

Joanna C. Schwartz

University of California, Los Angeles (UCLA) - School of Law

Date Written: February 28, 2022

Abstract

Although much recent attention has been paid to qualified immunity, the biggest threat to civil rights enforcement is actually the lack of lawyers able and willing to represent people whose constitutional rights have been violated. There are small, tight-knit communities of civil rights lawyers with expertise and passion in the cities of the Great Migration, but few civil rights attorneys practice out-side those urban areas. Limits on attorneys’ ability to recover fees mean that even attorneys willing to take civil rights cases will have financial incentives to decline meritorious cases if they would be expensive to litigate or if the expected damage awards are low.

People who bring civil rights cases pro se are far less likely to succeed than those with lawyers. Most pro se cases are dismissed for failure to plead cognizable claims in their complaints, or for failing to prosecute their claims—bases for dismissal that do not necessarily reflect on their underlying merits.

When a meritorious pro se civil rights case is dismissed, it is not only the named plaintiff who is harmed. Losses in these cases have negative down-stream effects, as well—frustrating future plaintiffs’ ability to overcome qualified immunity, prove municipal liability, and establish entitlement to injunctive relief.

Civil rights enforcement depends on lawyers’ willingness to bring cases on behalf of people whose rights have been violated. Unless and until more law-yers are willing to take these cases, abolishing qualified immunity and other proposed reforms won’t achieve their intended aims. Any plan to restore the power and potential of Section 1983 must include a blueprint to expand the number of lawyers who are bringing civil rights cases, expand the types of cases that they are bringing, and expand the locations where they are bringing them.

Keywords: civil rights litigation; Section 1983; pro se litigants; attorneys' fees; qualified immunity.

JEL Classification: K41

Suggested Citation

Schwartz, Joanna C., Civil Rights Without Representation (February 28, 2022). William & Mary Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4046203

Joanna C. Schwartz (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

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