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Publication Date

2001

Abstract

This essay addresses the problem of "Making Government Pay" from a different perspective than Professor Levinson's article.1 Instead of focusing on social and economic barriers to deterrence and corrective justice, this essay will focus on the arbitrary legal barriers that the Supreme Court has placed between a constitution�ally injured citizen and the municipal treasury. These legal barriers are more fairly attributable to the Supreme Court than to Congress because the barriers to establishing municipal liability under the Court's § 1983 jurisprudence are hardly self-evident from the statutory text of § 1983, nor are those barriers readily inferrable from that text. Though the Court from time to time has acknowl�edged that: (1) § 1983 is a remedial statute that should be liberally construed to provide a remedy; and (2) § 1983 is a species of tort law that should be interpreted in light of tort principles already well�settled at the time of its passage, the Court has not consistently pursued either of these interpretive approaches. Rather, § 1983 has often been interpreted with an eye to denying a remedy, and consequently has been construed to impose unique barriers to recovery that bear little resemblance to traditional doctrines of civil fault. This is particularly true when a citizen attempts to recover damages from a governmental subdivision for constitutional injuries inflicted by a police officer.

It is this essay's contention that the Supreme Court has erected so many non-textual barriers to recovery from the governmental subdivision that employs, trains, and supervises the tortfeasor, that § 1983 is increasingly being turned into an "attractive nuisance" for citizens injured by police officers-at least with respect to a plaintiffs chance of reaching the municipal deep pocket. Given the incredibly high odds against recovery from a governmental subdivision, it is certainly difficult to achieve deterrence and corrective justice. It may be true, as Professor Levinson argues, that govern�mental units may not be responsive even to a meaningful threat of liability, but empirical evidence in support of his position may have to wait until there is a meaningful threat of liability.

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