American Law Institute Launches Reformulation of Law, Constitutional Torts

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American Law Institute Launches Reformulation of Law, Constitutional Torts

PHILADELPHIA — The Board of the American Law Institute voted today to approve the launch of Restatement of the Law, Constitutional Torts. The project will be led by reporters John C. Jeffries, Jr. of the University of Virginia School of Law and Pamela S. Karlan of Stanford Law School.

The project will examine 42 USC § 1983, which gives an individual the right to sue state government employees and others acting “under the guise of state law” in federal court for violation of federal law. Actions under § 1983 are the primary means of recovering damages for federal rights, especially constitutional rights. The project will also cover Bivens[1] actions, the analogous cause of action for violations by a federal agent. Among other topics, the restatement will cover government immunities from lawsuits, liability of local governments for official policy or custom, and restrictions on § 1983 actions imposed by the Corrections Litigation Reform Act and federal law. on habeas corpus.

“We thought very carefully about the title of this restatement and what it would cover,” explained ALI Director Richard L. Revesz. “We considered ‘the statute of 42 U.S.C § 1983’, but felt that this would limit the draft to reviewing only actors under the law of any ‘State or Territory’; it would not apply to Title the draft “constitutional torts” broadens the scope of application to any analogous cause of action against federal officials, created in Bivens. Where Bivens actions lie, the very important defense of qualified immunity is the same as for state agents prosecuted under § 1983. Any restatement of this area should cover both.

ALI’s restatements of law are directed primarily to the courts and aim at clear formulations of the common law and its statutory elements, and reflect the law as it currently stands or might be appropriately stated by a court. . While the restatements strive for precision in statutory language, they also aim to reflect the common law’s flexibility and capacity for development and growth. This is why they are formulated in the descriptive terms of a judge announcing the law to be applied in a given case rather than in the imperative terms of a law.

“Whether under § 1983 or Welcome, immunity is the most important subject of constitutional tort law,” said journalist Jeffries. “The president has immunity that no state officer can claim, but otherwise the state and federal defendants parallel each other. Legislative, judicial and certain prosecutorial functions trigger absolute immunity. The limits of absolute immunity are not always clear, especially for prosecutors, and are extremely controversial. These issues would be dealt with in detail. Executive corporate officers benefit from qualified immunity, the contours of which are complicated and disputed. Documenting the law of qualified immunity for various rights and in various situations will probably be the most important subject of the Restatement.

“In addition to prosecutions of officers, one class of defendants, local governments, can be sued directly, but only for acts reflecting official policy or custom,” journalist Karlan continued. “Responding to the superior is not allowed. When localities lend themselves to adapt, they have no immunity. Thus, the identity of the defendant determines the rule of liability and greatly increases the incentive for plaintiffs to sue the localities, rather than officers, whenever possible. Occasionally, there is liability for policy by omission, for example, for failures to train government employees who then commit constitutional violations. line between these statements is extremely difficult and will be a major subject for restatement.

In addition to the essential elements of litigation under § 1983, several subsidiary matters must be covered. These include the relationship of § 1983 to the Eleventh Amendment and the circumstances in which a lawsuit properly pleaded against an agent of the state will nevertheless be adjudged against the state itself and therefore barred; damages (nominal, compensatory and punitive); the meaning of 42 USC § 1988(a), which provides that certain “gaps” in federal law be filled by the law of the state in which the Federal Court sits; the application of this approach to limitation periods; and the invalidity under the Supremacy Clause of certain provisions of state law affecting § 1983, including substitution of remedies, notice of claim statutes, and exhaustion of remedies.

The Restatement will also include two delimiting restraints: the Prison Litigation Reform Act of 1995, codified at 42 USC § 1997e(a); and the overlap between § 1983 and federal habeas corpus, which resulted in the reduction of the former for certain situations in which both might apply.

The Restatement will not cover the provision of attorneys’ fees under § l988(b).

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John C. Jeffries, Jr. is the David and Mary Harrison Professor of Law Emeritus and Advisor to the President of the University of Virginia Law School. John Jeffries joined Virginia Law School two years after graduating from law school in 1973. His primary research and teaching interests are civil rights, federal courts, criminal law, and constitutional law. Jeffries is co-author of case reports on civil rights, federal courts, and criminal law and has published a variety of articles in these areas. He also wrote a biography of Judge Lewis F. Powell, Jr.

In 1986, Jeffries was named the first Emerson Spies Professor of Law, a position created to honor a longtime teacher and former dean. Jeffries has also held a variety of other academic positions, including the Arnold H. Leon Professorship. He served as Associate Dean Academic from 1994 to 1999. In the fall semester of 1999, he served as Acting Dean during Dean Robert Scott’s sabbatical. He became dean in the fall of 2001 and served until June 2008. In 2017, he received the Thomas Jefferson Award for Excellence in Research; the awards are the highest honor given to members of the university community. From August 2018 to January 2021, he served as Senior Vice President for Advancement at the University of Virginia. He is now an advisor to AVU President Jim Ryan. He is a Fellow of the American Law Institute and the American Academy of Arts & Sciences.

While in law school, Jeffries served as editor of the Virginia Law Review. He received the Z Award for Highest Academic Average and the Woods Award for Outstanding Graduate. Immediately after graduation, he worked for Judge Lewis F. Powell Jr. before serving in the United States Army as a Second Lieutenant.

Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of the Supreme Court Litigation Clinic at Stanford Law School. A productive scholar and award-winning teacher, Karlan is co-director of the school’s Supreme Court Litigation Clinic, where students argue cases live in court. One of the nation’s leading experts on voting and the political process, she served as commissioner for the California Fair Political Practices Commission, associate and cooperating counsel for the NAACP Legal Defense Fund, and assistant deputy attorney general for civil rights. . Division of the United States Department of Justice (where she received the Attorney General’s Award for Outstanding Service – the department’s highest honor for employee performance – as part of the team responsible for implementing the decision to the Supreme Court in United States v. Windsor). Karlan is the co-author of major casebooks on constitutional law, constitutional litigation, and democracy law, as well as numerous scholarly articles.

Before joining Stanford Law School in 1998, she was a professor of law at the University of Virginia School of Law and served as law clerk to Justice Harry A. Blackmun of the United States Supreme Court and of Judge Abraham D. Sofaer of the United States. District Court for the Southern District of New York. Karlan is a Fellow of the American Academy of Arts and Sciences, the American Academy of Appellate Lawyers and the American Law Institute.

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About the American Law Institute

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. ALI drafts, discusses, revises, and publishes restatements of law, model codes, and principles of law that are hugely influential in courts and legislatures, as well as in legal research and education.

By participating in the work of the Institute, its distinguished members have the opportunity to influence the development of the law in existing and emerging fields, to work with other eminent lawyers, judges and scholars, to give back to a profession to which they are deeply committed, dedicated and contribute to the public good.


[1] Bivens c. Six Unknown Named Federal Bureau of Narcotics Agents, 403 US 388 (1971).

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