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Stanford Law School




The Civil Rights Act of 18711 ("§ 1983") establishes a tort-like remedy for persons deprived of federally protected rights "under color of law."'2 While the statute's broad language provides a remedy for violations of federal constitutional and statutory rights, the statute itself provides little or no guidance regarding important subjects such as the measure of damages, the availability of punitive damages, the requirements for equitable relief, the statute of limitations, survival of claims, proper parties, and immunities from suit.3...

...The first part of this article examines the narrowly "legal" analysis of § 1983 in the cases and commentary, with particular attention to the sources of law from which § 1983 cases have drawn. Neither the Court nor most commentators, I shall argue, have squarely admitted how little the methods of interpretation have constrained the choices made.22 And the attempt to buttress legal argument with "policy analysis," I argue in the second part, has also failed, because the cases and commentary display no vision of how one would go about evaluating what is at stake in § 1983 cases. The third part of the article tries to develop such a vision, taking a preliminary look at the value choices that must be made in civil rights cases and raising the moral and political questions that might enable a conversation about them. The debate should center on what rights should be created and how they should be enforced. The final part of the article suggests a pragmatic approach to § 1983 that would open the courtroom doors to detailed studies of the effects that § 1983 litigation has had on plaintiffs and defendants, actual and potential. Does § 1983 litigation really vindicate constitutional rights? Whose rights? And what are its effects on state and local government officials? At present, these questions are either answered tacitly, when the Court and commentators purport to decide cases by relying solely on text, history, and other sources of law, or they are assumed away with facile policy analyses and elementary lectures on "our federalism." While we may not know the answers to these questions, we must discuss them realistically, and admit when our knowledge is lacking or incomplete.

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