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77 Geo. L. J. 1493 (1988-1989)
Economic Rights, Implied Constitutional Actions, and the Scope of Section 1983

handle is hein.journals/glj77 and id is 1515 raw text is: Economic Rights, Implied Constitutional
Actions, and the Scope of Section 1983
Soon after the ratification of the fourteenth amendment, a Reconstruction
Congress passed the 1871 Civil Rights Act,' which created a statutory right
of action to redress constitutional deprivations effected under color of state
law.2 Included in the Act was a jurisdictional provision that allowed access
to federal court without regard to the amount in controversy.3 The statute's
modem descendant, known as § 1983,4 has become so popular with litigants
that critics routinely complain of the flood of federal court litigation that it
has produced.5 Predictably, there also has been a flood of calls to limit the
scope of the statute.6 Although the Supreme Court itself was largely respon-
* Associate Professor, Tulane University School of Law. B.A. 1972, Pomona College; M.A.
1975, Stanford University; J.D. 1978, Harvard Law School. I would like to thank Akhil Amar,
Robert N. Clinton, John Kramer, Keith Werhan, and Ann Woolhandler for their comments on
earlier drafts. I would also like to thank Abram Chayes, Peter Schuck, and Steven Steinglass for
their remarks on the paper at the Georgetown symposium.
1. Act of Apr. 20, 1871, ch. 22, 17 Stat. 13.
2. Id. § 1, 17 Stat. at 13 (current version of cause of action provision at 42 U.S.C. § 1983 (1982)).
3. Id. (current version of jurisdictional provision at 28 U.S.C. § 1343(a)(3) (1982)).
4. 42 U.S.C. § 1983 (1982). The statute provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the depriva-
tion of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper proceeding for
ERAL COURTS AND THE FEDERAL SYSTEM 1242-43 (3d ed. 1988) [hereinafter HART & WECHS-
LER] (noting increase in civil rights cases from 296 in 1961 to 40,970 in 1986); see also R. POSNER,
THE FEDERAL COURTS: CRISIS AND REFORM 82, 83, 186 (1985) (noting growth of civil rights
cases in federal courts' dockets); cf Aldisert, Judicial Expansion of Federal Jurisdiction: A Federal
Judge's Thoughts on Section 1983, Comity and the Federal Caseload, 1973 LAW & Soc. ORD. 557,
562 (criticizing federal courts' assertions of jurisdiction over § 1983 cases before state remedies
exhausted). But see Eisenberg & Schwab, The Reality of Constitutional Tort Litigation, 72 COR-
NELL L. REV. 641, 644-52 (1987) (questioning accuracy of widespread perception of litigation
6. See generally Shapo, Constitutional Torts: Monroe v. Pape and the Frontiers Beyond, 60 Nw.
U.L. REv. 277 (1965) (suggesting requirement of brutal or arbitrary state action); Whitman, Consti-
tutional Torts, 79 MICH. L. REV. 5, 6, 26 (1980) (arguing that burden § 1983 cases imposes on
federal court dockets effectively diminishes protection of all constitutional rights); Zagrans, Under
Color of What Law: A Reconstructed Model of Section 1983 Liability, 71 VA. L. REV. 499, 589


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