ABSTRACT
Scholars have traditionally framed Section 1983 as a ‘constitutional tort’, and they have recently devoted much attention to critiquing one side effect of that constitutional rhetoric: the doctrine of qualified immunity. That approach misses a more fundamental issue: the transformation of Section 1983 into a fault-based tort. Through textual and historical analysis, as well as reliance on tort theory, this Article demonstrates how the judicial rewriting of Section 1983 has undermined its effectiveness and diverged from the Reconstruction Congress’s intent. The Article argues that Section 1983 should be interpreted as a strict liability statutory tort.
Part I examines the history and text of Section 1983, revealing an intent to create a broad, strict liability cause of action. Part II traces the evolution from no-fault to fault liability, highlighting how courts gradually injected fault into Section 1983, both through state-of-mind requirements and good-faith immunities. Part III leverages tort theory to argue that Section 1983 makes sense as a strict liability tort, serving both private and public functions traditionally associated with common-law torts and highlighting tort law’s dualism. Part IV critiques the scholarly consensus around Section 1983’s fault principle, addressing potential objections to strict liability and demonstrating the flaws in the shift from right deprivations to duty violations.
The Article concludes by calling for a fundamental reassessment of the Section 1983 jurisprudence and a return to the statute’s strict liability roots. It also sets an agenda for future scholarship to develop a comprehensive theory of statutory torts beyond Section 1983, exploring their unique role in pursuing specific public goals through private enforcement mechanisms.
Godi, Matteo, Section 1983: A Strict Liability Statutory Tort (August 13, 2024), 113 California Law Review (forthcoming 2025).
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