Constitutional Litigation

Suits aimed at vindicating constitutional rights through money damages -- for example, litigation against the police, prisons, schools, or other government agencies -- are sometimes called "constitutional torts" or "Section 1983 actions (named for the federal statute that creates the cause of action). These actions account for a substantial share of the docket of almost all federal courts, and they are critical to vindicating constitutional rights and making government officers accountable for their actions.

This course will examine the law that has been developed by the Supreme Court and other federal courts to govern such cases. We will deal with such questions as: What qualifies as a constitutional injury? Who is the proper defendant, the government employee or the government itself? When are government actors immune from suit, and why? Under what circumstances may ostensibly private entities be sued under the Constitution? And (dear to the heart of almost every lawyer) when may attorney& 039;s fees be recovered? This material has been the subject of intense political and judicial controversy over the last few decades because it determines what constitutional guarantees actually mean in practice.

The course will focus mostly on case law and legal doctrine, but we will also discuss some larger philosophical issues as well as practical matters: What role should considerations of federalism play in deciding when government actors can be sued? How do judicial attitudes help define and shape constitutional rights? How are constitutional lawsuits planned and litigated well before they ultimately reach the Supreme Court?

This course should be of interest to students who are planning to do plaintiffs& 039; civil rights work, who plan to work as government lawyers at any level, who may do pro bono work in a law firm setting, who hope to clerk, or who are generally interested in constitutional rights. The professor has briefed and argued several cases in the U.S. Supreme Court and federal circuit courts.

Grading will be based primarily on a final exam likely consisting of both essay and multiple-choice questions. Class preparation and participation also will be taken into account.