Here's what we're reading today. And this is one of those articles that you should not miss.
Our W&M colleague Katherine Mims Crocker has published "Reconsidering Section 1983's Nonabrogation of Sovereign Immunity," 73 Fla. L. Rev. 523 (2021).
Why is this a "must read" you ask? Because Professor Crocker concludes, "[t]he preceding Parts have revealed substantial arguments for reading Section 1983 to abrogate sovereign immunity, which would make state governments susceptible to damages actions for violating constitutional rights."
There's not a mention of our friend the Takings Clause in the article (it focuses mostly on excessive force cases), but it doesn't take much to see how the analysis Prof Crocker sets out can include section 1983 takings claims.
Here's the Abstract:Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.
This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw contravenes commonsense interpretive practice, works a methodological anomaly, and offends foundational democratic values. This Article also contends that the caselaw rests on inappropriate assumptions that members of Congress during Reconstruction thought about federalism the same way members of the Court a century later did.
Turning to an affirmative critique, this Article explores Section 1983’s semantic meaning and expected applications. Among other things, this analysis uncovers evidence that some members of the public may have initially understood the statute to reach states—and that members of Congress inadvertently amended the default definition of “person” in 1874. The upshot is that despite credible counterarguments, the best reading of Section 1983 may make states suable.
Finally, this Article explores implications for reforming constitutional-tort law. In particular, it introduces the policy landscape and proposes a path forward with an initial focus on Fourth Amendment excessive force claims and a gradual extension to other contexts.
Check it out.