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Yeshiva University Benjamin N. Cardozo School of Law




The subject of this article is why people make federal cases, under section 1983,' out of claims they have against private parties. Section 1983 provides a cause of action against "any person" who, while acting "under color of' state law, subjects or causes the plaintiff to be subjected to a violation of federal constitutional or statutory rights. The requirement that the defendant act under color of law means that the typical section 1983 claim is brought against state and local government officials or entities, not against private individuals or entities. However, there are situations in which a private party (i.e. a party that is not a state or local government employee or entity) acts under color of law in a way that causes the plaintiff to be deprived of a federal right, allowing the private party to be sued under section 1983. While the color of law requirement is the most significant of the complications that section 1983 adds to litigation, there are others. For example, because section 1983 is a federal statute creating a federal claim largely against state officials, federalism concerns provoke courts to be very cautious about extending section 1983 into areas that are seen as better addressed by state law, such as the common law of torts.

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