Tyler B. Lindley (Brigham Young University - J. Reuben Clark Law School) has posted Anachronistic Readings of Section 1983 on SSRN. Here is the abstract:
Amid vehement disagreement about how section 1983 should be applied, a common, although not unanimous, story persists. Congress created a cause of action for constitutional violations by state actors but did not specify any of its contours. To find those necessary contours—such as the elements of the claim, causation, and the calculation of damages—courts look to the most analogous common-law tort in 1871 (when section 1983 was enacted) for guidance. Some have criticized this approach, arguing that the 1871 Congress intended to abrogate rules that prevent full redress for constitutional violations, such as official immunities. Others have argued that Congress intended to give federal courts the power to develop their own rules of decision.
But both the standard story and these criticisms of it are inconsistent with the historical legal context. In the light of contemporary legal practice, section 1983 would not have been understood to have created a new “cause of action,” as that term was understood in 1871. Rather, it codified rights secured by the constitution and provided a federal arena for actions seeking redress for violations of those rights. But in actions at law, federal courts were required to use the forum state’s “forms . . . of proceedings”—that is, causes of action—and to apply the non-substantive-rights-determining rules of decision of the forum state.
In other words, a plaintiff would have had to prove a constitutional violation and satisfy the requirements of a state-law cause of action. And absent clearly applicable federal statutes, courts would have looked to state law for statutes of limitations, measures of damages, survivorship rules, and even official immunities. Section 1983 did not answer basic questions about the cause of action because state law answered them.
Although later legal developments and stare decisis complicate this reading’s modern implications, section 1983 originally adopted state-level decisions about how to open officials to liability. To be sure, Congress can alter that arrangement and impose uniform rules. But until it does, understanding the real original meaning of section 1983 is critical in evaluating the current debates about whether to return to the original meaning and intent of section 1983, qualified immunity, and potential doctrinal changes.
Highly recommended.
