Tyler B. Lindley (Brigham Young University – J. Reuben Clark Law School) has posted Reconstructing Section 1983 (101 Notre Dame L. Rev. (forthcoming 2026)) (76 pages) on SSRN. Here is the abstract:
Conventional wisdom holds that section 1983, a statute making state officials liable for constitutional violations in federal court, created a federal cause of action governed by federal law. Disputes concerning secondary issues like qualified immunity are downstream from that conclusion. But that conventional narrative is ahistorical. Enacted in 1871, section 1983 arose in a world in which federal courts were limited to adjudicating state-law causes of action governed by non-preempted state law. In this context, section 1983 would have required a plaintiff to identify and bring a state-law cause of action—satisfying all the non-preempted state-law requirements for that cause of action—in addition to identifying and proving a constitutional violation.
One might question the relevance of this conclusion: We live in a different legal world than that of 1871, and, even setting that aside, federal courts have treated section 1983 as creating a federal cause of action governed by federal law for more than 60 years. But that perspective would be mistaken. Section 1983’s original understanding is likely binding today. None of the legal changes since 1871 have altered the basic premise that section 1983 relies on state-law causes of action governed by state law rather than providing a federal one. And as for stare decisis, assuming it applies, the modern test is overcome. The precedent is egregiously wrong and poorly reasoned, is unworkable, has been undermined by subsequent legal developments, and has engendered no cognizable reliance interests.
A return to the original understanding of section 1983 would bring with it a state-law-focused regime. Plaintiffs would likely need to use contemporary state-law causes of action and would have to satisfy the corresponding, non-preempted state-law requirements. But, of course, state law could not conflict with the Constitution or federal law. This new regime would also flip the current relationship between state courts and federal courts on its head—instead of state courts following precedent from federal courts, federal courts would at times need to follow state-court precedent. And the reframing would provide firmer ground for giving states—but not necessarily their municipalities and local bodies—immunity from damages in actions arising under section 1983.
Via Larry Solum at Legal Theory Blog, who says: "Highly recommended. Download it while it's hot!"
Posted at 8:20 AM