Section 1983: A Strict Liability Statutory Tort

Scholars have traditionally framed Section 1983 as a “constitutional tort,” and they have recently devoted much attention to critiquing one side effect of that constitutional rhetoric: the doctrine of qualified immunity. That approach misses a more fundamental issue: the transformation of Section 1983 into a fault-based tort. Through textual and historical analysis as well as reliance on tort theory, this Article demonstrates how the judicial rewriting of Section 1983 has undermined its effectiveness and diverged from the Reconstruction Congress’s intent. The Article argues that Section 1983 should be interpreted as a strict liability statutory tort.

Part I examines the history and text of Section 1983, revealing Congress’s intent to create a broad, strict liability cause of action. Part II traces the evolution from no-fault to fault liability, highlighting how courts gradually injected fault into Section 1983, both through state-of-mind requirements and qualified immunity. Part III leverages tort theory to argue that Section 1983 makes sense as a strict liability tort and serves both private and public functions traditionally associated with common-law torts, thereby highlighting tort law’s dualism. Part IV critiques the scholarly consensus around Section 1983’s fault principle, addressing potential objections to strict liability and demonstrating the flaws in the transformation of a harm-based statute (one prohibiting right deprivations) into a conduct-based provision (one prohibiting duty violations).

The Article concludes by calling for a fundamental reassessment of the existing Section 1983 jurisprudence. It also sets an agenda for future scholarship to develop a comprehensive theory of statutory torts beyond Section 1983, exploring their unique role in pursuing specific public goals through private enforcement mechanisms.

Table of Contents Show

Introduction

Though Section 1983 gives private parties a statutory mechanism to sue state actors for the deprivation of rights secured by both the Constitution and federal statutes,[1] by and large Section 1983 remains a means for scholars and jurists to speak about the Constitution in indirect terms. Section 1983 is a constitutional tort, as Marshall Shapo famously wrote, with the “constitutional” largely overshadowing the “tort.”[2] That approach has commandeered the literature. Over the years, scholars have written about the need to disaggregate the “constitutional” from the “tort,” seeking to “emphasiz[e] the constitutional”[3] because, to them, focusing on “the tort” would “impoverish[]” the discussion.[4] Academics still see the contradictions in the Section 1983 jurisprudence as a means not to shine new light on tort law, but to isolate “upstream conceptual confusion about the nature of constitutional rights” and to suggest that tort concepts “were thoughtlessly brought over from their proper domain.”[5] That perspective may well explain the rise of Section 1983 in the twentieth century. It has also led to the distortion of this statutory tort.

Decades after Section 1983’s enactment, the courts set in motion a campaign to rewrite that strict liability tort statute—one whose plain language the judiciary deemed simply too sweeping.[6] In thrall to the characterization of the statute as a “constitutional tort,” courts concluded that Section 1983’s “general language” should not be read to “overturn” background constitutional doctrines such as the “[f]reedom of speech and action in the legislature,”[7] the “government’s ability to perform its traditional functions,”[8] or “principles of federalism.”[9] Apparently, those doctrines would be threatened by attaching tort liability to state actors regardless of fault.

So, immunity defenses found their way into Section 1983. In recent years, scholars and judges have focused (for good reasons) on the many doctrinal and theoretical problems with qualified immunity.[10] Joanna Schwartz, for example, has argued that qualified immunity does not achieve its stated policy goals.[11] William Baude has challenged the historical justifications for qualified immunity, concluding that (for the most part) they do not hold up.[12] And others have offered substantive and empirical critiques of the doctrine.[13] Some have gone as far as calling for the outright abandonment of qualified immunity—including Alexander Reinert, who recently made the persuasive case that Section 1983’s original text expressly disapproved of immunities entirely.[14]

That insightful scholarship, however, has largely overlooked the fallacy that is the necessary antecedent to qualified immunity: the transformation of a strict liability tort into a fault-based tort through the shift away from the victim’s rights and towards the tortfeasor’s duties.[15] Indeed, scholars have taken that move for granted. Those who traced the early developments of this “constitutional tort” deemed it intuitively “questionable” to read its text in terms of strict liability and called for the imposition of “brutality,” “arbitrariness,” or “outrageousness” requirements.[16] Those who later focused on the state-of-mind requirements read into Section 1983 overlooked the statute’s broad language, advocating for various state-of-mind elements borrowed from other sources of law.[17] Some saw it as a “positive feature” that the Court required a “degree of culpability” depending on the constitutional right at issue.[18] And others conclusorily dismissed strict liability as an “unsound assumption,” resorting to fault as the only “sensible” solution.[19]

This Article will make the case that reading Section 1983 as a strict liability tort—where liability attaches because a specified harm took place, irrespective of the tortfeasor’s fault[20]—is not just consistent with the text, history, and early interpretations of Section 1983; it also makes sense normatively and doctrinally as a matter of tort theory. Far from shrinking Section 1983’s reach, emphasizing its tort pedigree would rejuvenate this statutory tort. It would also shine new light on entrenched debates among tort theorists over the purposes of tort law. That argument proceeds in four parts, followed by a brief conclusion.

Part I will be short and sweet, addressing the statutory interpretation question surrounding Section 1983. After a brief historical overview of the lead-up to Section 1983, this Part will offer an analysis of the sweeping language that Congress chose to deploy in Section 1983 and the relevant statutory and legislative history. It will argue that Congress intended to create a broad, strict liability, private cause of action sounding in tort.

Part II will focus on the courts, tracing the journey from no-fault to fault liability—that is, from liability because the defendant inflicted a harm on the plaintiff to liability because the defendant failed to act in a certain way. It will start by discussing early judicial interpretations under which the statute’s strict liability nature was taken for granted. Judicial discomfort with Section 1983’s broad language culminated in a series of decisions that transformed this no-fault statutory tort into a fault-based tort. That transformation was due to the overemphasis on constitutional principles, such as purported federalism concerns. It ultimately led to the injection of good-faith immunities and state-of-mind requirements into this strict liability tort.

Part III will focus on tort theory. The scholarship on Section 1983 is simply wrong to suggest a mismatch between the purposes of tort law and Section 1983. The Reconstruction Congress was trying to put an end to a state of affairs where, “by reason of prejudice, passion, neglect, intolerance or otherwise,” individuals had no recourse against the deprivation of their newly recognized rights.[21] Congress had multiple regulatory mechanisms in its toolbox, and its decision to resort to a strict liability statutory tort was not accidental. Indeed, traditional tort theory offers valuable (though partial) insights into the role and purpose of Section 1983.

Part IV will argue that the Section 1983 jurisprudence lacks a solid foundation and cannot continue to stand. Understanding Section 1983 as a statutory tort helps isolate and critique some of the flaws in the scholarly consensus around Section 1983’s fault principle—in particular, reframing a cause of action for deprivations of constitutional rights as requiring violations of constitutional duties. Rehabilitating Section 1983 as a statutory tort also shines new light on the “cold war” between the public-law theorists who view tort law as “responsible for efficiently allocating market resources to society” and the private-law theorists who view tort law as “responsible for spotting and fixing individual wrongs.”[22] Focusing on Section 1983 as a statutory tort underscores tort law’s dualism: its ability to foster a system capable of continuously defining, reaffirming, and pursuing specific public goals and shaping society’s values through means of private enforcement. Part IV will close by leveraging tort theory to address some objections to abandoning Section 1983’s fault principle, including the concern that redressing all deprivations of constitutional rights would lead to a shrinkage of those rights.

In closing, this Article takes the lessons learned from the missteps made with respect to Section 1983 to set out an agenda for future scholarship on theorizing statutory torts beyond Section 1983—making sense of their central, dual role in our system of government.

I. History and Text of Section 1 of the Civil Rights Act of 1871

Were the text enacted by Congress in 1871 the only guide, Section 1983 would still be a strict liability tort. Notwithstanding Section 1983’s clear language, however, courts refuse to read it as a strict liability cause of action. What follows is, first, a brief overview of the congressional acts that led to Section 1983, and, second, a textual analysis of the sweeping language that Congress chose to deploy in Section 1983. In short, this Part will show that the historical context, statutory and legislative history, and plain meaning of Section 1983 demonstrate that Congress intended to create a broad, strict liability, private cause of action—one that was premised on distrust of state government officials.

A.     A Brief History of the Civil Rights Acts

If Reconstruction was the “essential sequel” to the Civil War,[23] Section 1983 was in many ways the culmination of the Reconstruction reforms. As the infamous Black Codes effectively nullified the Thirteenth Amendment’s protections soon after its ratification,[24] it became apparent that more was needed to fulfill the federal promise of equality under law. Widespread racial violence pervaded the South.[25] Despite President Andrew Johnson’s opposition, Congress’s response came as a series of sweeping remedial statutes to protect the freedoms of those who had been enslaved.[26]

Congress’s first step was the Civil Rights Act of 1866.[27] The Act established that all persons born in the United States—regardless of race, color, or “previous condition of slavery or involuntary servitude”—were citizens of the United States.[28] The Act then provided that all citizens were entitled to a series of enumerated rights, including the right “to make and enforce contracts,” the right to sue in court, the right “to inherit, purchase, lease, sell, hold, and convey real and personal property,” and the right “to full and equal benefit of all laws and proceedings for the security of person and property.”[29] To ensure compliance with its provisions, the Act resorted to criminal sanctions. It made it a misdemeanor for “any person,” acting “under color of any law,” to subject “any inhabitant of any State or Territory to the deprivation” of any of those enumerated rights because of animus due to that person’s prior “condition of slavery.”[30]

The radical promise of that law did not go unchallenged. There were “doubts,” as the Supreme Court would later put it, about Congress’s power to enact the Civil Rights Act of 1866.[31] It was to quash those doubts, as well as to address the fear that a subsequent Congress might reverse course, that the Fourteenth Amendment was ratified in 1868 to constitutionalize the citizenship provision of the 1866 Act.[32] And it was pursuant to the express power to enforce the Fourteenth Amendment that, in 1870, Congress reenacted the criminal penalties of the 1866 Act.[33] The 1870 Act also made it a misdemeanor to deny any citizen the right to vote on account of “race, color, or previous condition of servitude,” in violation of the Fifteenth Amendment.[34]

Still, even after the Military Reconstruction Acts of 1867 and 1868,[35] a campaign of terror and private violence, spearheaded by the newly founded Ku Klux Klan, continued to prevent Black people from exercising their rights in much of the South.[36] The Klan systematically and ruthlessly perpetrated what became known as “outrages”: beatings, whippings, lynchings, shootings, rapes, and murders.[37] It was, as one historian put it, “barbaric savagery.”[38]

And state officials were largely complicit. One member of the House of Representatives recalled at the time that “[s]heriffs, having eyes to see, see not; judges, having ears to hear, hear not;” and “all the processes of justice[] skulk away as if government and justice were crimes and feared detection.”[39] Congress thus needed a “strong medicine.”[40] It needed to transform the premise behind the Founding Era’s federalism—to interpose the federal government between the States and the people.[41]

At long last, sufficient impetus built up to lead to the enactment of the Civil Rights Act of 1871.[42] The revolutionary nature of that Act, which “affect[ed] the foundations of the government itself,” was not lost on the 42nd Congress.[43] It was a measure meant to go “to every part” of the government, “touch[ing] the liberties and the rights of all people, and doubtless the destinies of the Union.”[44] Section 1 (now Section 1983), though modeled after the criminal provisions of the Civil Rights Act of 1866, created a private civil cause of action.[45] And, while mostly uncontroversial,[46] its language was expressly sweeping. Section 1983 provided a remedy not only to the Freedmen, as envisioned by its criminal counterpart,[47] but to “all people” who, under color of state law, may be deprived of federal rights.[48] Section 1983 was therefore part of “the basic alteration in our federal system wrought in the Reconstruction era.”[49]

B.     The Text of Section 1983: No-Fault Liability

The language that Congress chose in 1871 was not “loose and careless,”[50] as the Supreme Court suggested, but broad. It was broad because Congress sought to put an end to the nullification of federal rights by opening the doors of the federal courts to injured private citizens through a new tort cause of action.[51] Section 1 of the Civil Rights Act of 1871 provided:

That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.[52]

The sweeping nature of Section 1—including the repeated, persistent use of “any”—can hardly be overstated. Courts and scholars, occasionally and begrudgingly, have recognized this textual reality.[53]

Three years later, Congress consolidated the laws of the United States under a new subject-matter arrangement.[54] As rephrased in Section 1979 of the Revised Statutes, the cause of action under Section 1 of the Civil Rights Act of 1871 read:

That any Every person who, under color of any law, statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, shall subject, or cause causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States and laws, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any an action at law, suit in equity, or other proper proceeding for redress.[55]

Section 1979, later recodified as Section 1983 of Title 42 of the United States Code, thus remained largely similar to the original.[56]

Still, Congress recognized that Section 1983 and the civil rights statutes were prime examples of provisions that, following the 1874 codification, showed “verbal modifications bordering on legislation.”[57] Indeed, there were multiple notable changes both expanding and constricting the scope of this right of action.[58] For example, thanks to Reinert’s work, scholars and judges have recently focused on the omission of the clause “any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding,” which appears explicitly to abrogate common-law immunities grounded in state law.[59] Instead, a notable expansion was the addition of “and laws,” thanks to which Section 1983 may be invoked to seek liability for deprivations of statutory rights.[60]

Rather than focusing too heavily on one particular clause or phrase in Section 1983, which would risk missing the forest for the trees,[61] this Article’s fundamental point is that the structure of the Section 1983 cause of action resembles that of a common-law tort.[62] In those years, as now, “torts” were seen as the “group of circumstances attending the initiation and eventuation of an acknowledged harmful result, which induces us to make one person rather than another (or than no one at all) civilly amenable to the law as the source of the harmful result.”[63] Torts were “acts or omissions” that “disturb or impede” the enjoyment of rights that “the law of the land undertakes to declare and protect” and “establishes a standard of conduct for th[at] purpose.”[64] Under Section 1983, the injurious act—the deprivation of a federal right—is the trigger for liability; the only standard of conduct (or duty) is to refrain from depriving another of any right, privilege, or immunity secured by federal law. Accordingly, Section 1983 is a harm-based statutory tort: Every element is crystallized in the statutory language, which merely requires injury and causation.

That is why, moreover, Section 1983 is a strict liability tort: It imposes liability without regard to fault or culpability.[65] As used here, strict liability refers to the imposition of liability regardless of any intent to interfere with a legally protected interest and regardless of any breach of a standard of conduct.[66] There is only one operative question: “Did the defendant do the physical act which damaged the plaintiff?”[67] If the answer is yes, and if causation is satisfied, liability will attach. Though some contemporary torts scholars have attempted to redefine strict liability as the violation of a standard of conduct,[68] the “prevailing academic usage” remains that “strict liability is liability without wrongdoing”[69]—namely, “the imposition of liability even when reasonable care has been exercised.”[70] In other words, as Gregory Keating has explained, “when liability in tort is strict, the basis for liability is not that the defendant’s conduct was defective,” but “that the defendant inflicted unjustifiable harm or unjustifiably violated plaintiff’s right.”[71] That is what Section 1983 does: It imposes liability for the deprivation of the victim’s rights, not for any failure to abide by some standard of conduct. In that respect, Section 1983 is similar to trespass, where “recovery . . . is based on force and resultant damage regardless of the intent to injure.”[72] And, in the 1870s as today, a mistake could not excuse trespass.[73]

The strict liability nature of Section 1983 becomes even clearer when its text is considered along with other provisions of the Civil Rights Act of 1871, and especially Sections 2 and 6, now codified as Sections 1985(3) and 1986, respectively.[74] Congress did not intend for either of those provisions to impose strict liability—and it made that intent clear. Conspiracies to deprive individuals of their rights under federal law are actionable only where the tortfeasor acts with “the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws.”[75] And bystander liability is imposed only on those who “hav[e] knowledge” that a conspiracy is “about to be committed” but “neglect or refuse” to intervene.[76] In short, Congress knew how to write a cause of action for a fault-based tort. It just chose not to for Section 1983.

Putting policy concerns to one side for now,[77] there are some textual arguments against the view that Section 1983 creates a strict liability cause of action. One recent argument, sounding in originalism, is that the text of Section 1983 did not provide a cause of action at all, but instead merely gave federal courts jurisdiction over any “state-law cause of action” that could have been invoked incidentally to vindicate the deprivation of federal rights codified under Section 1983.[78]

The theory: Because the text of Section 1983 made state officials “liable . . . in any action at law [or] suit in equity,” it neither specified “any particular form of proceeding” nor created “a new form of proceeding,” and accordingly Section 1983 “would not have been understood to have created a [] ‘cause of action’ as that term was understood in 1871.”[79] But it is not clear why it would be necessary (then or now) for Congress to pick a single form of action. And the plainest explanation for the ambivalence between “at law” and “in equity” is that Section 1983 recognizes a new trespassory tort[80]—infringing upon those rights that Section 1983 codified as rights capable of giving rise to either legal or equitable remedies.[81]

Besides, the claim that, at the time it was enacted, Section 1983 was not “understood” to create a federal cause of action is itself questionable and likely immaterial. As early as 1885, the Supreme Court understood that whether a plaintiff alleged “a cause of action” under Section 1983 depended not on some state-law cause of action, but on whether the plaintiff could show themself, “within [the statute’s] meaning, to have been subjected by the defendant, under cover of a statute of a state, to the deprivation of a right, privilege, or immunity secured by the [C]onstitution.”[82] In any event, today, “[t]here is one form of action—the civil action.”[83] And the Supreme Court ascertains the existence of a cause of action by asking whether the statute, as written, “displays an intent to create not just a private right but also a private remedy”—something Section 1983 plainly appears to do.[84]

Another textual argument against the view that Section 1983 creates a strict liability cause of action is that the noun “deprivation” suggests that culpability is one of the elements of this statutory tort. Justice Powell made a similar argument in his concurrence in Parratt v. Taylor, later adopted by a majority of the Court, about the plain meaning of the verb “deprive” in the Due Process Clause.[85] Borrowing Justice Powell’s logic, one could argue that the term “deprivation” under Section 1983, as a matter of plain meaning, “connotes an intentional act denying something to someone, or, at the very least, a deliberate decision not to act to prevent a loss.”[86] Holding otherwise would apparently “trivializ[e]” Section 1983.[87]

That argument does not hold water. If the word “deprivation” necessarily implies an intent to deny something to someone, then it is hard to explain how, under Brady v. Maryland, the non-disclosure of exculpatory evidence unquestionably amounts to a deprivation of due process rights “irrespective of the good faith or bad faith” of the non-disclosing officer.[88] And not even a plain-meaning approach supports the view that, in 1871, a “deprivation” was anything more than the act of “taking away” something.[89] As Justice Stevens convincingly argued in his separate opinion in Daniels v. Williams, the verb “deprive” under the Due Process Clause identifies “not the actor’s state of mind, but the victim’s infringement or loss.”[90] The noun “deprivation” under Section 1983 is no different. If my favorite pen is taken away from me, I have been deprived of it whether it was taken maliciously, recklessly, negligently, or playfully.[91]

Though every practicing lawyer is accustomed to the admonition that, where the text is clear, one need not consider legislative history,[92] the fact that opponents of Section 1983 voiced concerns about its strict liability nature is further confirmation of its plain meaning. Members of Congress complained that, by imposing liability even on those who were “as pure in duty as a saint and as immaculate as a seraph”[93] and who acted in an “honest and conscientious” manner,[94] Section 1983 would place a “sword of Damocles” over the heads of state actors and hold it up “by a silken thread.”[95] Despite (erroneous) complaints that “in all the history of this country and of England” state actors had been held liable only in the presence of “[w]ilfullness and corruption in error,”[96] Congress enacted Section 1983 without any culpability or fault requirement.

In short, all signs point in the same direction. Section 1983 identifies a category of defendants (those acting under color of state law) and makes “any” or “every” one of them liable for certain injuries (deprivations of federal rights) caused to “any” plaintiff, regardless of whether the tortfeasor acted with the “most inhuman lack of care” or with the “most superhuman investment of care.”[97] As the saying goes, “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.”[98] Congress plainly enacted a broad statute that imposes strict liability for all deprivations of rights under federal law at the hands of state actors, and that would normally be the end of any judicial inquiry.[99] Yet Section 1983, enacted as a strict liability tort statute, remained one only through the 1960s. Scholars and courts gradually turned to theories of constitutional law—and away from tort theory—to understand the statute’s proper scope and function. In that process, Section 1983 was transformed into a fault statute. That evolution is covered next.

II. Judicial Interpretations: From No-Fault to Fault

A textual analysis of Section 1983 is not just an academic exercise in formalism divorced from how courts have interpreted the provision. Just as judges have recently started to question the origins of qualified immunity,[100] there is good reason—and a good amount of precedent—to do the same with respect to Section 1983’s fault principle. For decades, in fact, courts took for granted Section 1983’s strict liability nature. It is no accident that one of the earliest recorded decisions involving Section 1983 described the provision as mandating that “the person doing the injury under color of the state law shall be liable”—the harmful act alone giving rise to liability.[101]

Alas, the evolution of Section 1983 was not so straightforward. During its first fifty years, Section 1983 was invoked in about thirty lawsuits.[102] As discussed below, its strict liability nature was all but taken for granted in cases involving ministerial and discretionary conduct alike. As the years went by, however, and as judges focused on the “constitutional” and forgot about the “tort,” courts grew uncomfortable with strict liability. So, they rewrote Section 1983. Litigation increased,[103] and by 1970 it became uncontroversial that “Section 1983 does not in general impose strict liability on all who come within its prohibitions.”[104] How? The Supreme Court’s claim that it has “consistently” refused to interpret Section 1983 “to mean anything other than what it says” is, unfortunately, far from reality.[105] As one academic recently put it—helpfully identifying the underlying causes but misdiagnosing the problem—“[w]hatever the text’s original meaning, deeper conceptions about the nature of constitutional rights tend to drive the analysis” in Section 1983 cases.[106]

This Part provides an overview of the revolutionary path the judiciary charted to take Section 1983 from no-fault to fault liability—from liability because the defendant inflicted a harm on the plaintiff to liability because the defendant failed to act in a certain way.[107] That journey is necessarily simplified below.[108] But it highlights how the constitutional tort rhetoric led courts astray in two ways.[109] First, the focus on the constitutional source of the rights enforced through Section 1983 led to the creation of state-of-mind requirements as a way of limiting liability for harms deemed too trivial to be worthy of constitutional protection. Second, the overemphasis on federalism principles led to the injection of qualified immunities. The cause of action that resulted from this decades-long interpretative journey bears no resemblance to the statutory tort that Congress enacted in 1871.

A.     From 1871 Through 1940: Strict Liability

There is no denying that, as soon as Section 1983 was enacted, courts began to narrow its scope indirectly through decisions on the Fourteenth Amendment.[110] The Slaughter-House Cases, which effectively wrote the “privileges or immunities” clause out of the Fourteenth Amendment,[111] handed an early blow to the “privileges or immunities” language in Section 1983.[112] The Civil Rights Cases doubled down, excluding the unlawful conduct of those acting in their individual capacities from the reach of the Fourteenth Amendment and, by implication, of any law promulgated pursuant to it.[113] Those cases necessarily had a lasting impact on Section 1983.[114]

Still, many of the early victories came from applying Section 1983 as a strict liability statute. At the same time, many of the early defeats were not due to the courts’ failure to appreciate the statute’s strict liability nature. The operative question (and correctly so) was whether the defendant had deprived the plaintiff of a right under federal law. To be sure, in those years, posing that question could cut both ways: In the late 1870s, segregating schoolchildren by race did not give rise to a “denial of equal rights” under the “separate but equal” doctrine,[115] but cutting the hair of detained Chinese immigrants who wore it in a long braid (or “queue”) amounted to a denial of their rights to be free from “degrading and cruel punishment” and to enjoy “the equal protection of the laws.”[116] Neither case, however, revolved around whether the tortfeasor in fact acted negligently, with intent to harm, or in bad faith. Instead, as is true of strict liability, the courts appeared to ask only whether “the defendant inflicted unjustifiable harm or unjustifiably violated plaintiff’s right.”[117] That Section 1983 remedied “every blow,” “however humble,” was reason for “generous pride,” Justice Field once wrote.[118]

Like the Slaughter-House Cases and the Civil Rights Cases with the Fourteenth Amendment, early efforts to limit the scope of Section 1983 targeted the harms that the statute covered. Through a process of trial and error, the Supreme Court suggested that the “rights” the statute covered may only be “personal rights” or “civil rights,”[119] or that conduct in violation of state law could not be “state action” under Section 1983.[120] Though those efforts ultimately failed, to this day some attorneys (unsuccessfully) attempt to press similar arguments.[121]

Despite those judicially created boundaries, and consistent with the fact that the various provisions of the Bill of Rights had not yet been incorporated against the States,[122] many of the early successful invocations of Section 1983 involved voting rights lawsuits. Those cases, largely concerning the performance of ministerial functions, exemplify Section 1983’s strict liability nature. The so-called Texas Primary Cases, and especially the saga involving Dr. Lawrence Nixon and the Texas Democratic Party in the 1930s over Dr. Nixon’s right to vote in the primaries despite the color of his skin, are well known to students of constitutional law.[123] The key role played by Section 1983, however, is often overlooked.[124] But those decisions were made possible only because Section 1983 created a strict liability tort. In both of Dr. Nixon’s lawsuits, all that mattered for his claim that he was deprived of his rights under the Fourteenth and Fifteenth Amendments was whether party officials had in fact denied him the right to vote.[125] It “hardly ha[d] been doubted for over two hundred years,” the Supreme Court wrote, that Dr. Nixon could recover “private damage[s]”—in his case, $5,000—where “the defendants’ conduct was a wrong to [him].”[126]

Perhaps the most important Section 1983 voting-rights cases are two lesser-known decisions, twenty years before the Nixon cases, involving the enforcement of “grandfather clauses” that disenfranchised Black voters.[127] Those decisions permitted Black voters to recover damages, again on a strict liability theory, for the denial of their right to register for elections. In both cases, Black voters sued under Section 1983 when they were denied the right to vote.[128] In both cases, the defendants argued that there was no right of action unless the voters alleged that the defendants acted willfully, maliciously, or corruptly[129]—in other words, unless the tortfeasors were culpable or at fault in some way.[130] And, in both cases, the courts disagreed with the defendants.[131] The reason those voters were permitted to recover damages without showing fault was precisely Section 1983’s strict liability nature.[132] The argument that some showing of fault or culpability was necessary was “without force,” one lower court wrote, because Section 1983 does not require the tortfeasor’s conduct to be “either maliciously or intentionally wrongful.”[133] The other court explained why: If, in addition to requiring that the deprivation be under the color of state law, Section 1983 also required a showing of culpability, then “the defendant in such a suit could always plead that he did not act maliciously or willfully or in bad faith.”[134] After all, “he was acting in obedience to the laws of the [S]tate.”[135] Accordingly, “anyone” who acts under the color of state law in depriving another individual of federal rights “does so at his known peril and is made liable to an action for damages.”[136]

The Supreme Court seemed to agree. At the Court, the state officials complained that they had been “compelled to [act] under severe penalties” by state law and were thus being held strictly liable for acts concededly “done honestly and in good faith.”[137] And the officials stressed that they were being “mulcted in damages” only because they “happen[ed] to have been mistaken” about the legality of the state law, which they “believed [] was valid” given that no court had (yet) “said otherwise.”[138] But that argument, though “seriously pressed,” was so frivolous that the Supreme Court later dismissed it in one sentence.[139]

To be sure, in another case decided around the same time as those voting-rights cases, the Supreme Court planted the seed of fault. In Moyer v. Peabody, the alleged ringleader of a rebellion was arrested after the Governor of Colorado declared a state of insurrection.[140] The arrestee sued the Governor and others for damages under Section 1983, claiming that his detention “without probable cause” for over two months deprived him of due process.[141] The Supreme Court embraced a form of qualified immunity: It held that, “[w]hen it comes to a decision by the head of the [S]tate upon a matter involving its life,” liability can attach only if the decision was not “made in good faith [or] in the honest belief that [it was] needed in order to head the insurrection off.”[142] Because the arrestee did not allege that the officials acted in bad faith, the complaint was dismissed.[143] As the adage goes, “bad facts make bad law.”[144] The damage was done, and “a forebear of our modern doctrine of qualified immunity” was born.[145]

Even after Moyer, however, courts continued to apply Section 1983 as a strict liability tort against state actors, regardless of whether their conduct was ministerial or discretionary.[146] That was likely because, as the Court explained a few years later, the “general language” in Moyer must be interpreted narrowly, “in connection with the point actually decided” in that case: liability for conduct that had a “direct relation to the subduing of [an] insurrection.”[147]

Up until the 1940s, therefore, no court found Section 1983’s strict liability nature problematic[148]—not even as the Supreme Court began to incorporate the Bill of Rights against the States[149]—because Section 1983 was akin to familiar trespassory torts. As one court explained in a case involving a claim for false imprisonment, “Congress gave a right of action sounding in tort to every individual whose federal rights were trespassed upon by any officer acting under pretense of state law,” meaning that “[a] field was created upon which a state officer could not tread without being guilty of trespass and liable in damages.”[150] As the Supreme Court put it, Section 1983 concerns “tortious invasions of alleged civil rights by persons acting under color of state authority.”[151] For that reason, Section 1983 is not too vague even though it “does not refer to the state of mind of the tort-feasor.”[152] Regardless of whether compensatory or injunctive relief was sought, Section 1983 was as uncontroversial as a strict liability trespassory action.[153] The “only protection” against a Section 1983 claim, Judge Learned Hand wrote, was “the difficulty of proving” it.[154]

B.     From 1940 through 1960: The Rise of Fault

In the 1940s, the way courts looked at Section 1983 started to change. The framework of analysis shifted away from trespassory and common-law torts and towards the Constitution. Through that shift, principles of federalism and separation of powers, coupled with concerns that expansive liability would trivialize the constitutional status of the some of the rights enforced, opened the door to fault as a limiting principle. As argued below, Section 1983’s transformation into a fault statute was set in motion by three seemingly unrelated cases.[155]

In Snowden v. Hughes, a plaintiff sued state officials for damages under Section 1983 and its conspiracy counterpart, Section 1985(3).[156] The officials, members of the Illinois State Primary Canvassing Board, had allegedly deprived Mr. Snowden of his constitutional rights when they failed to file with the Secretary of State a certificate listing him as a candidate for a seat in the Illinois assembly, in violation of state law.[157] The officials moved to dismiss on various grounds, including on the theory that Mr. Snowden had failed to allege the deprivation of equal protection rights “by reason of race, color or previous condition of servitude.”[158] Seemingly speaking of both Sections 1983 and 1985(3), the Court held that there can be no “denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.”[159] As the dissent noted (with approval), the majority’s conclusion may well have been motivated by fear that requiring less would have “distorted” the Constitution “to make the federal courts the supervisor of the state elections.”[160]

With respect to Section 1983, however, it is hard to see the source of the specific intent element articulated in Snowden. Only Section 1985(3) requires the tortfeasor to act with “the purpose . . . of depriving any person or any class of persons of the equal protection of the laws.”[161] As far as the elements of Section 1983 go, it had been clear, at least up until the Snowden decision, that the official’s state of mind was irrelevant.[162] Section 1983 plainly focuses only on the “deprivation” of a federal right. Whether or not the tortfeasor acted culpably had never been part of the equation.[163]

The following year, the Supreme Court’s decision in Screws v. United States provided additional fuel to the transformation of Section 1983 into a fault statute.[164] Screws, which interpreted Section 2 of the Civil Rights Act of 1866 (now codified at Section 242 of Title 18 of the U.S. Code),[165] is often remembered for clarifying that “under color of law” covers conduct not authorized by state law.[166] And, in that respect, some have praised Screws for breathing new life into Section 1983, which was modeled after Section 242, by allowing it to impose liability even on state officials who violate state law.[167] The other holding in Screws, however, on the constitutional necessity of a mens rea requirement under Section 242, dealt a serious blow to Section 1983.

The defendants—law enforcement officers who brutally murdered a Black man—argued that Section 242 was unconstitutionally vague.[168] The Supreme Court found that the willfulness requirement, which had been added to the provision in 1909,[169] saved the law. The Court acknowledged that, prior to the 1909 amendment, it “may be” that Congress had intended that those who deprived someone of a right under federal law “should be liable without more”—that is, strictly liable.[170] But that changed with the express addition of the “willfulness” requirement, which the Court found refers to the specific intent to deprive a person of a federal right.[171]

Albeit cabined to Section 242, Screws could be read to imply that even imposing strict liability in tort for deprivations of federal rights could be problematic—and that a culpability requirement could shield the law from constitutional challenges. And so, in a 1946 decision, Judge Hand relied on Snowden in declining to consider whether Section 1983 could be subject to any constitutional objections on vagueness grounds.[172] According to Judge Hand, Snowden had “construed” Section 1983 “to include just that factor of purposeful discrimination” that Screws had deemed sufficient to shield Section 242 from a vagueness challenge.[173] In other words, Snowden plus Screws equaled fault.

Against the backdrop of Snowden and Screws, the Court’s decision in Tenney v. Brandhove effectively provided a general license to bend the text of Section 1983.[174] In Tenney, members of a California legislative committee were sued for allegedly depriving the plaintiff of his First Amendment rights by calling him to appear before the committee.[175] Interestingly, an amicus brief by twenty-five States argued that “liability without fault” would violate due process.[176] According to the States, Section 1983 (just like its criminal counterpart) should be read to require a specific intent to deprive someone of a “clearly [] recognized constitutional right.”[177] The Court acknowledged that Section 1983 seems to have categorical language.[178] But it purported to decline “to wrestle with far-reaching questions of constitutionality” raised by the strict liability nature of Section 1983.[179] Yet the Court held that, despite the statute’s “general language,” legislators were immune from civil liability in light of their constitutionally protected “[f]reedom of speech and action.”[180] That holding had the effect of undermining Section 1983’s strict liability because the lower courts took it to “relieve[]” them of the necessity of giving Section 1983 the “awesome and unqualified interpretation” that its plain text requires.[181] That dispensation seemingly included ignoring the “notwithstanding clause” and its express disapproval of immunities.[182]

After Snowden, Screws, and Tenney, most courts decided that they did not need to enforce the statute’s “literal wording,”[183] under which “all that has to be proved is that the defendants as a result of their conduct under color of state law have in fact caused harm to the plaintiff by depriving him of rights” under federal law.[184] Instead, those decisions emboldened courts to “refuse to [give] the statute . . . a strict, literal application.”[185] Constitutional principles apparently relieved them of the obligation to apply the text as written. Not all courts agreed—after all, it is not for “any court to give [Section] 1983 a narrower construction than Congress intended, but for Congress to decide whether it wishes to narrow the scope of the statute.”[186] Some suggested instead that Section 1983 remained at its core a strict liability provision with respect to deprivation of rights under the Reconstruction Amendments.[187] But the general sentiment, as then-Judge Harry Blackmun put it, was against interpreting this statutory tort to “provide a federal forum for the redress of private wrongs” unless there had been “a complete breakdown of law and order.”[188] By the early 1960s, the transformation of Section 1983 was well underway.

C.     From 1960 Until Today: The New Section 1983

With their newly found interpretative freedom and constitutional focus, courts started to rewrite Section 1983 in two crucial ways: by requiring particular states of mind and by crafting immunity doctrines. Both of those parallel pushes were an effort to reject the no-fault nature of the Section 1983 tort. They also signaled a shift away from redressing and deterring the deprivation of the victim’s rights and towards imposing liability for the tortfeasor’s violation of some duty of care purportedly underlying the right.

By 1961, the view that Section 1983 is a strict liability tort was not entirely lost on the Supreme Court. The Court touched on that no-fault liability principle in Monroe v. Pape, although the officers’ state of mind was not properly before the Court.[189] Justice Douglas’s majority and Justice Frankfurter’s dissent both distinguished Section 1983 from its criminal counterpart, noting that the word “willful” simply does not appear in Section 1983.[190] And they both found that omission unsurprising: Section 1983 was enacted to provide a federal remedy “because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced.”[191] Accordingly, all that was needed was a showing that the state actor “in fact did the acts” that amounted to a deprivation of federal rights.[192] To the dissent, it would be “an unhappy form of judicial disapproval”—indeed, an “embarrassment without countervailing justification”—to obstruct Section 1983’s operation by superimposing a state-of-mind requirement.[193] As the majority explained, Section 1983 “should be read against the background of tort liability that makes a [person] responsible for the natural consequences of [their] actions”[194]—namely, strict liability.[195]

Still, in the years Monroe was litigated and decided, most courts began to take the view that a plaintiff could not make out a Section 1983 claim unless the tortfeasor had acted with a culpable mind. Courts did not take a straightforward path to get to that conclusion. At first, some contended that the challenged conduct must be motivated by a specific intent to deprive the plaintiff of the underlying right.[196] Others characterized the “crucial state of mind” required under Section 1983 as the defendant’s “realiz[ation] that they were subjecting plaintiffs to harm by an unconstitutional impairment.”[197] At bottom, both approaches pointed to the same conclusion: A degree of fault is needed.

These fault-based approaches were propelled by a focus on the Constitution.[198] In response to Monroe v. Pape, Shapo famously referred to Section 1983 as a “constitutional tort” because it “contains tort elements” yet “employs a constitutional test.”[199] Shapo found that constitutional element not just in the invocation of constitutional rights, but in the “fundamental issues of federalism” that Section 1983 raised.[200] Judicial decisions soon followed Shapo’s approach.[201] Courts worried that applying Section 1983’s text as written would mean that “every common-law action for false arrest would be cognizable in the federal courts” as a violation of the Constitution.[202] They worried that doing so “would open the door wide” and “set the federal courts up as an arbiter of the correctness of every state decision.”[203] Accordingly, they sought to “restrict the applications of the Civil Rights Act so as to avoid the appalling inflammation of delicate state-federal relationships which undoubtedly would ensue.”[204]

In short, the judicial injection of fault into Section 1983 was motivated by concern over a proliferation of claims for deprivation of constitutional rights, fear that constitutional rights would be trivialized, and worry that federal courts would intrude on state authority under the Constitution. Requiring some degree of fault or culpability was a way to curb strict liability and address those constitutional concerns.[205]

Soon enough, starting in the 1970s, the Supreme Court stepped in to sow more confusion. The Court did not bring order by reaffirming the longstanding view, most recently embraced in Monroe, that Section 1983 applies to actions taken “by reason of prejudice, passion, neglect, intolerance or otherwise.”[206] Nor did the Court embrace the approach of some of the courts of appeals, which had created a single state-of-mind requirement across all Section 1983 claims.[207] Instead, for many (though not all) constitutional rights, it invented a hodgepodge of distinct state-of-mind requirements—purpose, animus, malicious intent, deliberate indifference, et cetera[208]—purportedly divined from the Constitution itself and deemed necessary to demonstrate a “deprivation” of a constitutional right under Section 1983.[209]

Start with the Fourteenth Amendment. As discussed earlier, in Daniels v. Williams, the Court held that “negligent conduct by a state official” is not sufficient to allege a deprivation of substantive due process rights.[210] Instead, an official must act “with the intention of harming” the defendant.[211] The Court took a similar approach to the Equal Protection Clause: Personnel Administrator of Massachusetts v. Feeney held that a “discriminatory purpose” or “discriminatory intent” is required to plead a deprivation of equal-protection rights under Section 1983.[212] The same was apparently true of the Fifteenth Amendment[213]—despite those early Section 1983 decisions suggesting that intent is irrelevant.[214]

The injection of culpability requirements was not limited to Section 1983 claims for deprivations of rights under the Reconstruction Amendments. In Estelle v. Gamble, for example, the Court held that “deliberate indifference” is necessary to state a Section 1983 claim for the deprivation of the right to adequate medical care under the Eighth Amendment,[215] meaning that the official must “know[] of and disregard[] an excessive risk to inmate health or safety.”[216] Similarly, under Whitley v. Albers, convicted detainees subjected to the use of excessive force are not deprived of their Eighth Amendment rights unless the officer acts “maliciously and sadistically for the very purpose of causing harm.”[217] In Weatherford v. Bursey, in turn, the Court held that a criminal defendant cannot prove a Section 1983 claim for deprivation of the right to counsel based on an undercover agent’s presence at a confidential attorney-client meeting unless there was “purposeful intrusion” with the intent to learn about “the defendant’s defense plans.”[218] In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court looked for evidence of “hostility,” “animosity,” and “distrust” against religion to find a deprivation of free-exercise rights.[219] Lastly, courts have required Section 1983 claims for Brady violations brought against law enforcement officers[220] to include the very element of bad faith that the Supreme Court deemed irrelevant in Brady.[221]

Courts have superimposed culpability requirements even where constitutional rights expressly embrace only an objective standard.[222] For example, the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[223] Accordingly, concepts like “malice” and “sadism” have no proper place in the relevant inquiry, which is one of “objective reasonableness” under the circumstances.[224] Yet, even here, the Court limited Section 1983’s strict liability through the extraneous consideration of states of mind—such as the victim’s subjective “reasonable expectation of privacy” in the subject of the search,[225] the parties’ “relative culpability” leading up to the seizure,[226] or the officer’s “purposeful or flagrant” decision to engage in an unconstitutional search.[227]

How did the Supreme Court justify bootstrapping a myriad of state-of-mind requirements onto a strict liability statutory tort? As mentioned earlier, it was not through reliance on the statutory text or invocation of tort law.[228] Instead, the Court stressed that Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.”[229] From that premise, the Court concluded that Section 1983 “contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.”[230] Put differently, “[w]here a plaintiff claims that a particular [] action itself violates federal law,” the plaintiff must “establish the state of mind required to prove the underlying violation” in order to resolve the “issue[] of fault” and demonstrate the tortfeasor “acted culpably.”[231] In effect, according to the Supreme Court, Section 1983 plaintiffs must prove a violation of the underlying constitutional duty in order to establish a deprivation of the relevant constitutional rights.[232] For that reason, the Winnebago County Department of Social Services was not liable under Section 1983 for “depriv[ing] Joshua of his liberty without due process of law” because “the State had no constitutional duty to protect Joshua.”[233]

That approach has been praised as “an extraordinarily strong organizing principle” by some;[234] at bottom, though, the Court was largely making it up.[235] As Rachel Barkow has recently noted, the Supreme Court has “limit[ed] rights and narrow[ed] restrictions on the government by insisting that someone bringing a constitutional challenge demonstrate . . . that the governmental actor behaved with an improper mental state”—even though no such requirement exists in the text of the Constitution, and even though the historical and policy rationales for adding that requirement are wanting.[236] State-of-mind requirements, by design, undermine Section 1983’s strict liability.[237]

Courts have employed another stratagem to ignore Section 1983’s strict liability and inject state-of-mind requirements: mandating that plaintiffs plead (some of) the elements of whichever common-law tort can be best analogized to the circumstances of any given case. The Supreme Court started from the premise that Section 1983 “creates a species of tort liability” that should not be applied “as stringently as it reads.”[238] It then jumped to the conclusion that, “to determine whether there is any bar” to a Section 1983 claim, the Court must “look first to the common law of torts” to identify the “common-law cause of action” that “provides the closest analogy” to the claim at issue.[239] Accordingly, if the Court believes that “the gravamen of the Fourth Amendment claim for malicious prosecution . . . is the wrongful initiation of charges without probable cause,” and “the wrongful initiation of charges without probable cause is likewise the gravamen of the tort of malicious prosecution,” then malice must be pleaded under Section 1983 because it is required at common law.[240] But it is hard to see why any of this is relevant. As argued above, the text of Section 1983 creates a trespassory tort whose only elements are injury and causation.[241]

Unsatisfied, the courts did not stop at turning a harm-based statute (one prohibiting right deprivations) into a conduct-based provision (one prohibiting duty violations): Enter qualified immunity.[242] As mentioned earlier, the Supreme Court planted the seed of “good faith” immunity as early as 1909, in the Moyer case.[243] But that seed remained dormant until Snowden, Screws, and Tenney chipped away at Section 1983’s no-fault principle. Courts then began to take the view that, if Section 1983 does not impose strict liability, then even those state officials who lack “complete immunity” can still have a “qualified privilege” when they act “in good faith in performance of their official duty as they understood it.”[244] The Supreme Court embraced that doctrine in 1967, through loose appeals to the common law.[245] But it soon became clear that the true motivation behind qualified immunity was a concern with burdens on government[246] and “principles of federalism.”[247] Over the years, qualified immunity evolved into today’s familiar objective test that shields state officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[248] In turn, absolute immunities—which apply categorically, regardless of reasonableness or good faith—were extended to judges,[249] prosecutors,[250] state-employed public defenders,[251] and those acting in legislative capacities.[252]

Even with the birth of qualified immunity, the Supreme Court’s fidelity to fault-based liability under Section 1983 was not unwavering. In 1980, in Owen v. City of Independence, the Court held that municipalities—which may be held liable under Section 1983 “when execution of a government’s policy or custom . . . inflicts the injury”[253]—do not enjoy qualified immunity.[254] The majority noted that Section 1983’s text is “absolute and unqualified,” in that “no mention is made of any privileges, immunities, or defenses that may be asserted.”[255] According to the Court, speaking the language of strict liability, “one who causes a loss should bear the loss,” and “blameworthiness” is not the “acid test of liability” under Section 1983.[256] Justice Powell, in dissent, acknowledged that “Congress ha[s] the power to make those individuals liable for all such torts,” but lamented that Section 1983’s text did not expressly state that municipalities “should be strictly liable even if they could not have known” their conduct would amount to a deprivation of rights under federal law.[257] It is hard to imagine a clearer paean to Section 1983’s strict liability. Yet it did not take long for the Court to reinterpret Owen to require fault.[258]

In short, through both state-of-mind requirements and qualified immunity, the courts injected fault-based requirements into Section 1983’s cause of action. Neither move, as explained in Part IV.A below, is compatible with the principles behind strict liability. If Section 1983 is a strict liability tort, then the persistent focus on whether the defendant’s conduct lives up to a certain standard of conduct is entirely beside the point. Strict liability does not turn on careless or culpable conduct, or on whether the defendant intended causing the harm or invading the right. Instead, strict liability hinges on the invasion of a protected right. That is why the source of the state-of-mind requirement matters. Under a correct interpretation of Section 1983 as a strict liability statutory tort, the actor’s state of mind should be irrelevant unless the right of which the plaintiff is deprived happens to be a right to be free from conduct undertaken with a particular state of mind. Yet it is far from clear that any (let alone every) constitutional right should be so defined.[259]

*            *            *

This Part reviewed the trajectory of Section 1983’s liability: from the no-fault statute that courts applied up until the first half of the twentieth century to the fault statute that courts apply today, and from liability because the defendant inflicted a harm on the plaintiff to liability because the defendant failed to act in a certain way. The overemphasis on federalism principles and the constitutional source of the rights enforced through Section 1983 led courts to create state-of-mind requirements and immunities as means of limiting liability for harms deemed too trivial to be worthy of constitutional protection.

Today, in short, the strict liability statutory tort that Congress codified in Section 1983 has been rewritten into a cause of action that requires myriad states of mind and can be thwarted by a qualified defense that the tortfeasor did not act with at least something akin to gross negligence. It is beyond the scope of this Article to justify any causal link that may be drawn between the increase in Section 1983 lawsuits after the 1960s and the sudden discovery of state-of-mind requirements buried into the Constitution in the 1970s and 1980s. The more modest position advanced here is that, far from being traceable to the use of tort rhetoric, the messy rewriting of Section 1983 is, in fact, a clear rejection of its tort pedigree. Part III will show why that move is at odds with both the Reconstruction Congress’s legislative project and with tort theory.

III. Section 1983 and Tort Theory

The judicial transformation of Section 1983 has short-circuited not only the statute’s text but also the role that Congress intended for this statutory tort. This Part first returns to the dilemma faced by Congress in the 1870s to demonstrate the unique role that a strict liability tort played in the Reconstruction project. Congress resorted to multiple regulatory tools to achieve the goals of Reconstruction, and its decision to rely on tort law was far from accidental. Next, this Part shows why, as a matter of tort theory, reading Section 1983 as a no-fault tort makes sense—and, in turn, how that reading shines new light on the entrenched debate between public-law theorists, who view tort law as a set of rules for efficiently allocating entitlements and costs, and private-law theorists, who view tort law as a set of rules for identifying and correcting individual wrongs.[260] Section 1983, like other statutory torts, highlights tort law’s dualism: its ability to define, reaffirm, and pursue specific public goals—thereby shaping society’s values—through private-law tools.

A.     The Reconstruction Congress’s Regulatory Toolbox

The Reconstruction Congress enacted a strict liability statutory tort—and even contemplated a collective-liability tort—because leveraging private tools to seek redress was the most effective and efficient means of achieving Congress’s ends: ending a state of affairs in which individuals had no recourse against the deprivation of their newly recognized rights “by reason of prejudice, passion, neglect, intolerance or otherwise.”[261] Indeed, the United States in the 1860s and 1870s was a society with a significant rights-remedies gap: There were individual rights, but—for some people—no remedies for their deprivation.[262] The Reconstruction Congress thus faced a dilemma: The common law provided ill-fitting tools to address that gap,[263] yet Congress did not want the losses from rights deprivations to lie where they fell.[264] Congress needed a mechanism to retroactively redress those wrongs while prospectively regulating human behavior, and—after trying penal sanctions, administrative processes, and constitutional amendments—it turned to one of the oldest common-law embodiments of that dualism: tort law.[265]

At first, the 38th and 39th Congresses pursued a collectivist approach to rights: administrative law and criminal law.[266] Where those who hold law-enforcement authority can be trusted to exercise their power fairly and consistently, criminal law can be one way of creating an effective system of regulation.[267] A collectivist society can select those actions which are deemed so dangerous or despicable that they must be forbidden, set a penalty sufficiently severe to deter that prohibited conduct, and impose the sanction whenever the actus reus occurs with the requisite mens rea.[268] Alternatively, the same society might choose to achieve some or all of its goals through administrative law.[269] That is what happened in 1865 and 1866. In 1865, Congress created the Freedmen’s Bureau to support Black individuals and address persisting outrages through a system of quasi-judicial administrative bodies.[270] The following year, Congress also made it a misdemeanor for “any person,” acting “under color of any law,” to subject “any inhabitant of any State or Territory to the deprivation” of certain enumerated rights under federal law “on account of such person having at any time been held in a condition of slavery.”[271]

Yet even the strongest system of criminal and administrative penalties (something that, admittedly, the Freedmen’s Bureau Bill and the Civil Rights Act of 1866 were not) would be of little use where individuals have rights, but no official is willing to enforce those rights and remedy their deprivations.[272] A society where those who hold the power of enforcement cannot be trusted would be wise to rely on private enforcement mechanisms: a system of tort liability.[273] And that is what the 41st Congress did: It provided that “[a]ny person” who acts “under color of any [State] law” and deprives “any person” of “any rights, privileges, or immunities secured by the Constitution of the United States” and its laws “shall . . . be liable” to that injured person in an “action at law, suit in equity, or other proper proceeding for redress.”[274] That, as discussed above, is the strict liability tort under Section 1983.[275]

A society that prioritizes the eradication of rights deprivations, however, could go even further. It could go even beyond creating an individual strict liability cause of action to imposing collective tort liability.[276] Certain categories of individual tortfeasors, in fact, might always be the ones “at fault” in a strict sense, yet they may not be easily identifiable or susceptible to judgment.[277] That was true of the Ku Klux Klan. It is thus unsurprising that Congress contemplated a collective liability tort in 1871.[278] The House of Representatives considered permitting “any citizen of the United States” deprived of federal rights by “any combination or number of [people]” to file a lawsuit “against the inhabitants” of the municipality where the tort occurred, “as if the inhabitants were a corporation.”[279] Under the House proposal, if the tortfeasors had not been brought to justice, the courts would “enter judgment for double the amount of damages.”[280] The Senate, instead, would have created a similar cause of action against “the inhabitants of the county, city, or parish” where the tortfeasors acted “to deprive [the victim] of any right conferred upon him by the Constitution and laws of the United States, . . . or by reason of his race, color, or previous condition of servitude.”[281] Under the Senate proposal, the municipality could then “recover the full amount” of the judgment from “any person or persons engaged as principal or accessory in such riot.”[282]

Those proposals ultimately became Section 1986, which moved away from collective liability and towards liability for indirect injuries.[283] Section 1986 narrowly codifies an “action on the case” against “[e]very person” who has the power to prevent a conspiracy to deprive individuals of rights under federal law but “neglects or refuses” to do so.[284] It authorizes the recovery of “all damages caused by such wrongful act, which such person by reasonable diligence could have prevented.”[285] Section 1986, in other words, recognized “the duty of all citizens to aid in repressing these outrages,” recognizing the breach of that duty as an indirect cause of harm.[286]

The text and statutory history of Section 1986 make clear that Congress was actively debating how to use tort law as a means of regulation.[287] Congress thought damages would be measured “[p]recisely the same as you do in an action of tort.”[288] The drafters of the prior versions of Section 1986 intentionally resorted to a remedy “older than the English law”[289]—namely, the Act of Winchester of 1285.[290] That statute created a cause of action for victims of robbery against the locality if the robber was not apprehended within forty days, and provided that “the whole [village] where the [r]obbery shall be done . . . shall be answerable for the [r]obberies done.”[291] The cause of action that Congress contemplated against municipalities, and ultimately authorized against bystanders, was similarly an “action on the case.”[292]

That reliance on basic principles of tort law makes sense. With Section 1983, Congress broadly recognized a cause of action to redress acts causing injury—much like a trespassory tort, as some courts later observed.[293] With Section 1986, in turn, Congress focused only on holding liable specific indirect injurers (i.e., bystanders or, under prior proposals, the municipality and its inhabitants) and deterring future injuries. That is precisely what an action on the case would accomplish.[294] Either way, the Reconstruction Congress’s goals were clear: It sought to leverage the more radical mechanisms for liability available under the common law of torts, and it did so both to redress rights deprivations and to deter tortfeasors and the States whose laws those individuals may have been following.

In sum, when it came to addressing the unavailability of remedies for deprivations of federal rights, Congress had multiple regulatory mechanisms in its toolbox.[295] Ultimately, it created a statutory tort. The successful and unsuccessful proposals to rectify a “condition of affairs” that had made “life and property insecure”[296] make clear that Congress’s decision to resort to a strict liability tort was not an accidental one. Congress set a specific goal: ending a state of affairs in which government officials could deprive individuals of their newly recognized federal rights. Tort law provided a mechanism to pursue that public goal by leveraging private-law tools of redress to shape society’s values.

B.     Section 1983 and Tort Law’s Dualism

Reading Section 1983 to impose no-fault tort liability not only comports with Congress’s Reconstruction plan but also aligns with the recognition of tort law’s dualism. Although a new generation of scholars has pressed a variety of theories of tort law in recent years,[297] the more broadly accepted ones continue to fall into two camps: “private law” and “public law.”[298] Both camps—with theories of corrective justice[299] and civil recourse,[300] on the one hand, and cheapest cost avoider[301] and economic deterrence,[302] on the other—have largely taken a monistic view of tort law. But once statutory torts such as Section 1983 enter the picture, an alternative view emerges: Statutory torts are system-building tools that reaffirm and pursue specific public goals through means of private enforcement, thereby highlighting tort law’s dualism.

The “cold war” between the monistic views of tort law may well explain why the Supreme Court has seemingly struggled for decades to pin down Section 1983’s purposes. The Court has said that Section 1983 is about “deter[ring] state actors,”[303] creating “a proper place in which to find redress for any such wrongs,”[304] “compensating those injured by a deprivation of rights,”[305] and “allocat[ing] any resulting financial loss to the inevitable costs of government borne by all the taxpayers.”[306] That scattershot approach has led scholars, including Richard Fallon, to argue that we should cast aside “the organizing assumptions of historical tort doctrine” when interpreting Section 1983, because those assumptions do not match “current needs” and fail to “mark the categories of legal norms that most urgently require judicial enforcement against public officials for the rule of law to thrive in the modern era.”[307] If one recognizes tort law’s dualism, however, it becomes possible to focus on the central purpose of the Section 1983 statutory tort and to see that it is capable of doing precisely what Fallon believed to be beyond the reach of tort law.

Consider first the mismatch between Section 1983 and private-law theories of tort law such as corrective justice and civil recourse—retrospective theories that focus on the imposition of liability ex post.[308] Unsurprisingly, given their focus on the private aspects of common-law torts, corrective justice and civil recourse have limited application to Section 1983.

Broadly speaking, corrective justice theory, as developed in the writings of Jules Coleman, Arthur Ripstein, and Ernest Weinrib, traces the goal of tort law back to the right of victims to be made whole.[309] According to those theorists, tort law concerns the moral relationship that arises from the “doing and suffering of harm.”[310] In their view, a tort involves a “normative gain” for the tortfeasor and a “normative loss” for the injured party, and the purpose of tort law is to cause the “disgorgement” of the gain to achieve the “reparation” of the loss.[311]

At its most fundamental level, one of the core principles of corrective justice is that it “must be limited to interactions between private parties.”[312] That limitation makes the theory difficult to apply to Section 1983, where defendants often are public or private entities acting pursuant to state law. Moreover, corrective justice elevates compensation—the disgorgement of the gain so as to repair the loss—above all else. That view provides an overly narrow take on Section 1983, where damages are not always strictly compensatory and seem to serve other central functions.[313] Even when damages cannot be proven, nominal damages may still be available because, as the Supreme Court has acknowledged, “the law recognizes the importance to organized society that those rights be scrupulously observed.”[314]

Unlike a corrective justice theory’s focus on moral gains and losses, John Goldberg and Benjamin Zipursky’s civil recourse theory sees in tort law more than just a mechanism to seek full compensation.[315] Their theory postulates that tort law fulfils the government’s “duty” to empower injured parties “to hale alleged wrongful injurers into court . . . to vindicate certain of the putative victim’s interests, rather than those of the state or the public.”[316] At a high level of generality, civil recourse is a theory about “wrongs and redress”: “[T]orts are violations of legal directives that simultaneously identify duties not to injure others and rights against being injured by others,” thereby “generat[ing] for victims a claim to recourse in the particular form of redress from wrongdoers.”[317]

When applied to Section 1983, civil recourse theory fares better than corrective justice theory, but only at first blush.[318] Even setting aside the various problems with civil recourse theory,[319] some of which are discussed later with respect to strict liability in particular,[320] a fundamental problem remains: For Goldberg and Zipursky, the key function of tort law is “enabl[ing] those who suffer violations of [noninjury] rights to obtain recourse in the form of redress.”[321] Applied to Section 1983, however, that view falls prey to the same criticism levied against corrective justice: An individual’s right to seek redress for themselves is hardly the only goal of Section 1983. Moreover, civil recourse theory emphasizes that the content of tort law “derives from a set of well-established moral judgments that the courts have elaborated.”[322] But, with statutory torts, it is Congress—not the courts—that makes the relevant judgments. And removing that central morality from civil recourse theory seems to collapse its contribution into a tautology: “Tort law provides redress for wrongful injury; injury is wrongful if tort law provides redress for it.”[323]

The mismatch between Section 1983 and private-law theories of tort law contributed to the rejection of Section 1983’s strict liability. While the Supreme Court was describing Section 1983 as a mechanism to “redress . . . wrongs”[324] and to “compensate[e] those injured,”[325] scholars were arguing that “the availability of damages remedies [under Section 1983] for all constitutional violations would likely result in a shrinking of constitutional rights.”[326] In other words, as demonstrated in Part II, the rejection of Section 1983’s strict liability nature traces back to the belief that, if tort law is only about redressing wrongs and compensating harms,[327] and if Section 1983 is a tort, then it would be “unsound” and not “sensible” to apply Section 1983 as a no-fault tort.[328] If the point of statutory torts like Section 1983 were simply redressing wrongs and repairing losses, there would be a real danger of jurists and scholars alike second-guessing the wisdom of each statutory tort—especially strict liability ones.[329]

But Section 1983 is not just about retribution and redress. This is where the public-law approaches to torts come in: prospective theories of tort law that focus on the prospect of liability ex ante.[330] Those instrumentalist and functionalist theories—theories built around common-law torts—provide helpful but ultimately incomplete insights into Section 1983, much like the private-law theories.

Consider the two dominant public-law theories: economic deterrence and cheapest cost avoider. Economic deterrence theory, most often associated with Richard Posner, holds that tort law’s purpose is to deter socially inefficient conduct and “promote efficient resource allocation” through sanctions, instructing actors to “take [any] precaution that would be cost justified even if the other party were careful.”[331] Posner’s theory, a descriptive one, “takes negligence to be the fundamental principle of tort law.”[332] Guido Calabresi’s theory of the cheapest cost avoider, by contrast, finds the normative goal of tort law in determining whether the loss should lie where it falls. Calabresi postulates that the guiding principle in making that determination should be identifying those categories of actors best situated to avoid accidents in a cost-efficient way.[333] Under Calabresi’s approach, “the goal of tort law is to minimize the sum of three factors: the costs of accident prevention, the costs resulting from accidents, and the costs of administering the tort system.”[334]

To understand why public-law theories are also a poor match for statutory torts such as Section 1983, start with Posner’s approach. As discussed earlier, deterrence is obviously at play with Section 1983. Yet a theory that treats economic deterrence as the be-all-and-end-all goal of tort law necessarily struggles to account for a statutory tort animated not by economic efficiency[335] but by more specific and varied goals. As Daniel Meltzer pointed out with respect to Section 1983, often “the harm suffered by individuals from the constitutional violation itself may be small, widely dispersed, and intangible”—and yet Congress provided recourse to those victims nonetheless.[336] Unlike administrative regulations, Section 1983 did not become law because it passed a cost-benefit test.[337]

A related critique can be leveled against Calabresi’s cheapest-cost-avoider principle. His theory helps illuminate a strict liability tort like Section 1983: After all, Calabresi’s approach “takes strict liability to be the fundamental principle of tort law.”[338] And with respect to Section 1983, it is certainly plausible that Congress determined that state actors were, categorically, “in the best position to make the cost-benefit analysis between accident costs and accident avoidance costs.”[339] But Calabresi’s approach still cannot provide a complete account. If the cheapest-cost-avoider principle were the primary motivating principle behind Section 1983, Congress might have placed liability on local government entities rather than on individual tortfeasors—similar to the model used in the Federal Tort Claims Act.[340] As Michael Wells has argued, moreover, Section 1983 appears to hold state actors liable even when the costs are greater than the benefits—and yet we might expect every “rational officer, seeking to minimize overall costs to the government, [to] prefer to incur a cost rather than take a precaution that costs more than it is worth.”[341]

Much more could be said about the mismatch between traditional theories of common-law torts and statutory torts generally, but for present purposes it suffices to recognize that the mismatch is real. Of course, this is not to suggest that those approaches to common-law torts are unpersuasive on their own terms. But, if statutory torts are indeed torts, then tort theory ought to offer an account capable of making sense of these ubiquitous causes of action. Looking at Section 1983 through the lens of tort law not only helps diagnose the problems with prevailing judicial and scholarly approaches to this statute, but it also shines new light on long-running debates in tort theory. There is some truth to the belief of some scholars that Section 1983 and common-law torts have “different purposes” and “different interests.”[342] But that is not because Section 1983 is not a tort. Instead, the mismatch is due to the long-overdue recognition that tort law does not neatly sit within private law or public law.[343]

That dualism is most evident with respect to Section 1983. The statute empowered Congress to build a system capable of shaping society’s values and achieving the goals of Reconstruction through means of private enforcement. And Congress deliberately embraced a strict liability private right of action, rather than a fault-based tort, because of the specific public goal it sought to achieve: putting an end to the state of affairs in which, “by reason of prejudice, passion, neglect, intolerance or otherwise,” individuals were deprived by state actors of their rights under federal law.[344] The creation of such a statutory tort ensured that the pursuit of Congress’s objectives would not depend on the whims of the political majority.[345] Section 1983 enabled Congress to shape societal values in a particular direction—not towards some general goal of economic efficiency or redress, as the monistic approaches to tort law might argue, but towards the specific goal of Reconstruction—without additional public intervention. That key function of statutory torts would be impossible to achieve without the private element of these causes of action. In short, Section 1983, like other statutory torts, defines and pursues a specific public goal through private law tools.

IV. A Strict Liability Tort Statute: Critiques and Defenses

Much of this Article has focused on demonstrating that the current fault-based interpretation of Section 1983 is inconsistent with the statute’s text, history, and purpose—and that interpreting Section 1983 as a strict liability tort makes sense as a matter of tort theory. This Part argues that the scholarly consensus around Section 1983’s fault principle is wrong on its own terms. Indeed, many of the policy and theoretical objections to Section 1983’s strict liability nature simply do not hold water. As this Part shows, there are few real obstacles to following the statute’s text, history, and purpose all the way to reconsidering—or abandoning—the judge-made, fault-based version of Section 1983.

A.     Deconstructing Section 1983’s Fault Principle

The focus on fault and culpability that pervades the Section 1983 jurisprudence reflects an internally inconsistent effort to undermine and reject Section 1983’s strict liability nature. Since the 1980s, when Susanah Mead wrote that courts were having a “difficult time” accepting that fault or culpability are not relevant under Section 1983,[346] the rejection of Section 1983’s strict liability nature has become entrenched in the academic literature. Indeed, other than criticizing qualified immunity,[347] scholars have largely embraced the Supreme Court’s revolutionary approach to Section 1983 as a fault-based statute. But that view, as described below, collapses onto itself in many respects.

1.     Qualified Immunity

Qualified immunity is, by all accounts, an easy target. Under the modern version of qualified immunity, state officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[348] That objective inquiry effectively restates the reasonable person standard from the tort of negligence, with a heightened requirement that the right be clearly established.[349] Indeed, whereas the negligence inquiry at common law asks “what a reasonable person of ordinary prudence would have done in the same or similar circumstances,”[350] qualified immunity asks what a reasonable officer who knows clearly established law would have done in the same or similar circumstances.[351]

That is why John Jeffries has long written of the “centrality of fault” to Section 1983.[352] Jeffries’s argument that negligence is “the best short description of the minimum liability standard for constitutional torts,” because qualified immunity is “a specie of negligence” that “turns on the reasonableness of a mistake as to constitutionality,” appears circular when taken as a normative statement.[353] Section 1983 cannot be a fault-based statute because of the existence of qualified immunity—for the existence of qualified immunity itself rests on the premise that, since Section 1983 does not impose strict liability, a tortfeasor’s subjective good faith (or objective reasonableness) is relevant. In other words, whether Section 1983 is a fault-based statute, and thus whether it permits qualified immunity, cannot hinge on the existence of qualified immunity itself. That would simply beg the question.

By focusing on fault in the tort sense, qualified immunity is incompatible with strict liability—and, therefore, with Section 1983. At common law, even defendants who are “not regarded as engaging in blameworthy conduct” but are, in fact, engaged in “desirable social and economic activity” may be held strictly liable merely because “common notions of fairness require that the defendant[s] make good any harm that results even though [their] conduct is free from fault.”[354] Strict liability “does not make the test of liability the question whether a reasonably prudent person would consider that under the attendant circumstances the [act] would either necessarily or obviously expose another to the danger of probable injury.”[355] Strict liability, simply put, “does not depend on proof of negligence.”[356] Accordingly, for a strict liability tort like Section 1983, asking whether the conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known” should be irrelevant;[357] whether the officer did the act that in fact caused the deprivation of rights should be the end of the inquiry. Liability should attach not because of defective conduct but because of injury.

Some may push back on the suggestion that qualified immunity is incompatible with strict liability. Qualified immunity, they would argue, imposes a kind of strict liability because it always holds state officials liable for violations of clearly established law—regardless of whether they actually knew (or were trained on) clearly established rights. That purported “strictness” of qualified immunity is akin to the “strictness” of negligence law—meaning qualified immunity remains incompatible with strict liability all the same. Tort scholars have long noted “the strict liability in fault,” insofar as the relevant standards of conduct are often “defined objectively” and thus are “quite demanding” and “unforgiving.”[358] It has been the rule at least since Vaughan v. Menlove that “someone who lacks the capacity to conform their conduct to that of a reasonable person may nonetheless may be found legally negligent.”[359] In other words, every person is “strictly liable” for failing to act like a reasonable person, regardless of whether they are capable of acting reasonably.[360] That insight, for negligence and qualified immunity alike, underscores the importance and limits of the objectiveness of the inquiry. But it does not do away with the fundamental distinction in tort law between fault and no-fault liability, between conduct-based torts and harm-based torts.[361] By focusing on the reasonableness of the state official’s conduct, qualified immunity undermines Section 1983’s no-fault, harm-based liability.

2.     State-of-Mind Requirements

Beyond qualified immunity, courts have leveraged state-of-mind requirements to curb Section 1983’s no-fault liability through the formulation of constitutional duties purportedly underlying every constitutional right.[362] Recall the Supreme Court’s move: Section 1983 plaintiffs must prove a violation of the underlying constitutional duty in order to establish a deprivation of the relevant constitutional right.[363] Through that subtle move, the Court effectively redefined the relevant tortious act—just as it did in the context of qualified immunity. The Court’s reframing moves the attention from the right being taken away (the injury resulting from the tortious act) towards the duty being violated (the standard of care protecting the right). The Court thus turned a harm-based provision (one prohibiting right deprivations) into a conduct-based provision (one prohibiting duty violations).[364]

The literature has blessed that fundamental reframing. For example, as noted earlier, Jeffries has long taken the view that Section 1983 is, at bottom, a fault statute.[365] Jeffries is not alone. Scholars, including Sheldon Nahmod and Charles Abernathy, also reject the possibility that the search for “the source for the standards of care” to apply to Section 1983 claims should end with the statute itself.[366] They argue that Section 1983 is “silent on the question of the basis of liability, i.e., whether liability must be based on intentional or negligent conduct, or even conduct without fault.”[367] According to those scholars, that is so because “[o]n its face” Section 1983 “requires only state action and a causal relation between defendant’s conduct and the deprivation of [federal] rights.”[368] That, of course, is just another way of describing no-fault (strict) liability. Mead recognized as much.[369] Yet, like Nahmod and Abernathy, Mead believed the correct threshold question to be whether the defendant owes a constitutional duty to the plaintiff—a question that must be answered by looking at the defendant’s state of mind.[370] In short, these scholars believe the tortfeasor’s “state of mind or degree of culpability” matters because the violation of a constitutional duty is a requirement of the Section 1983 prima facie case.[371]

But whether constitutional and statutory duties are violated, on their own terms, is a different question from whether the right that those sources of law enshrine has been taken away. Section 1983 does not create a remedy for “violations” of constitutional or statutory “duties,” however defined. It covers, instead, “deprivations” of constitutional or statutory “rights.”[372] And, in tort law, not all rights collapse into duties. Driving over the speed limit and causing an unreasonable risk of harm may violate a duty even if it results in neither injury nor deprivation of a right. Building a fence by mistake on a neighbor’s side of adjacent properties infringes on the neighbor’s property rights even where the fence-builder acts in good faith. And when a widget company manufactures a defective widget that deprives a consumer of their right to bodily integrity when it malfunctions, the company is liable regardless of its exercise of reasonable care while manufacturing the product.

Goldberg and Zipursky’s efforts to reduce all torts, including strict liability torts, to a set of “correlative duties and rights of noninjury”[373] in some ways exemplify the error in the judicial rewriting of Section 1983. According to Goldberg and Zipursky, all torts are “dyadically defined.”[374] For instance, “[n]egligence recognizes a right not to be physically harmed by the careless actions of another, along with a corresponding duty not to so harm others.”[375] And tort liability is always imposed because of “some defect in the defendant’s action beyond the mere fact of having caused injury”—namely, the violation of “a duty of noninjury.”[376] Under that view, even strict liability is merely “liability based on the violation of demanding or unforgiving (‘strict’) standards” rather than “liability irrespective of the violation of a standard of conduct.”[377] Accordingly, as Goldberg argued in his thoughtful review of this Article, Section 1983 need not be read “necessarily [to] contemplate[] liability without regard to the nature of the conduct that interfered with the right.”[378] Instead, it “should be read to create legal wrongs that consist of one person suffering a certain kind of setback as a result of another person’s sub-standard conduct.”[379] For Section 1983 and all other torts, the argument goes, “the plaintiff’s being injured by what the defendant did is . . . not the wrong in and of itself.”[380]

That view risks distorting Section 1983 and strict liability torts alike. As Keating persuasively explains, “[r]ecasting various strict liabilities as conduct-based wrongs forces them into a mold that deforms them.”[381] If strict liability were triggered by the breach of a (strict) duty of noninjury, as Goldberg and Zipursky argue,[382] then people would have a duty not to “engag[e] in [a] risky activity altogether.”[383] That is because anyone who “engages in risky behavior does not know whether her conduct will accidentally injure the plaintiff.”[384] But many strict liability torts at common law, such as trespass, may arise from “blameless conduct”—indeed, strict liability at common law might even arise from “justified conduct,” as in the case of ultrahazardous activities.[385] Unlike negligence, strict liability “does not involve proving that the defendant’s conduct was defective” but instead holds that there are certain harms that “ought to be shouldered by those responsible for their infliction.”[386] As discussed earlier, the same is true of Section 1983: Liability plainly attaches because the defendant inflicted unjustifiable harm by depriving the plaintiff of a right under federal law, not because the defendant engaged in some sub-standard course of conduct.[387] Because the only “duty” under Section 1983 is the duty not to deprive someone of a federal right, the defendant’s careless or culpable conduct has no relevance unless the right itself happened to be a right to be free from harm caused by careless or culpable actions.[388]

The concept of the Hohfeldian “right” might also be helpful here. As Wesley Hohfeld famously argued, the word “right” is employed “indiscriminately to denote any sort of legal advantage, whether claim, privilege, power, or immunity.”[389] But not “all legal relations may be reduced to rights and duties.”[390] Only a Hohfeldian “claim”—a specific type of “right”—is defined in relation to its correlative “duty,” such that the deprivation of the former necessarily entails a violation of the latter.[391] In other words, claim-rights are understood in terms of their corresponding duties: A violation of the duty is always a deprivation of the claim-right, and vice versa. Yet the same is not true of all rights. For some, there is no correlative duty whose violation necessarily amounts to a deprivation of the right itself.

By speaking of “rights” under the Constitution and federal law, Section 1983 was evidently speaking of the full panoply of claims, privileges, powers, and immunities. Yet, as Baude has noted, “most constitutional rights went from being treated as rules about power to being treated as duties.”[392] And much ink has already been spilled to explain why not all constitutional rights—including the rights under the First and Fourth Amendments, just to name two examples—are Hohfeldian claims/duties.[393] For purposes of this Article, however, it is sufficient to recognize that, by reframing the Section 1983 question as concerning the underlying “duty”—even where the constitutional or statutory provision securing the “right” whose deprivation triggers liability under Section 1983 does not impose any correlative standard of conduct—the courts distorted the Section 1983 cause of action.[394] That is the move that opened the door to considerations of fault and culpability.

To be sure, the point here is not that, if Section 1983 were to be correctly read as a harm-based strict liability provision, a defendant’s state of mind should be entirely irrelevant. At common law, strict liability may require that the defendant intended the act that causes the harm or the deprivation of the right. Consider battery. In Vosburg v. Putney, the defendant “did not intend to do [the plaintiff] any harm,” nor did he intend the “wrong” identified by the court—namely, contact that was impermissible because it occurred “after [school] had been called to order by the teacher, and after the regular exercises of the school had commenced.”[395] Yet the defendant did intend to kick the plaintiff in the knee, which is all that was needed for liability to attach strictly.[396] The defendant in Longnecker v. Zimmerman similarly intended to “cut[] out dead branches and clean[] out bagworms” from certain trees that she believed (incorrectly) to be on her property.[397] She did not intend either wrong or harm to her neighbor. But because she intended the act that is the trespass, she was strictly liable.[398]

This is all to say, there is a fine but important line between intent to touch (required for battery) and intent to infringe upon the right to bodily integrity (not required); intent to enter land (required for trespass) and intent to infringe upon the right to property (not required). That is the line that, with respect to Section 1983, the courts have overlooked.

To understand how those principles would apply to Section 1983, consider some hypothetical examples. If a prison guard chokes an incarcerated person to death while attempting to break up a fight, intent to touch should be all that is required for an excessive force claim under Section 1983—regardless of whether the guard also had any intent to “caus[e] harm.”[399] And if an undercover officer attends a confidential attorney-client meeting, intent to be present should be enough under Section 1983—regardless of whether the agent also had the intent to learn about the defendant’s strategy.[400] Asking for faulty or culpable conduct, as the Supreme Court has done for many constitutional rights, is to transform Section 1983 into a fault-based, conduct-based tort, whereby liability attaches because of careless or culpable conduct rather than merely because the defendant did the act that deprived the plaintiff of their rights.

One final point: None of this discussion should be taken to imply that strict liability is absolute liability. Take another concrete example. Section 1983 would not impose strict liability on “an election official who, despite using due care in storing the ballots in his custody, failed to prevent them from being ruined by an unpreventable water leak, such that voters in his district, including Black voters, could not vote.”[401] The reason, in a strict liability world, is not because the official’s conduct was not sufficiently culpable.[402] Instead, the reason is causation. For one thing, the election official’s conduct would appear to lack any “causal link” to the injury: There hardly is any “empirically based belief that the act or activity in question will, if repeated in the future, increase the likelihood that the injury under consideration will also occur.”[403] Moreover, even assuming that race was a but-for cause of the rights deprivation (e.g., the district was majority Black), any rights deprivation would not be proximately caused by any intentional, volitional act or omission.[404] Adapting Mark Geistfeld’s insights to the context of Section 1983, proximate causation requires asking whether the type of harm that occurred was within the scope of risks for which a reasonable state official would account when making the relevant decision.[405] A reasonable election official would not normally account for the risk of an unpreventable water leak while carefully storing ballots in his possession.[406] But if the type of harm had been foreseeable—because, for instance, the election official was aware of prior similar water leaks in the storage location—the official might be held liable “for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.”[407]

B.     Strict Liability: Implications and Objections

At this point, one question remains: So what? Some may feel Section 1983’s transformation into a fault-based tort is water under the bridge because there are just too many doctrinal and practical obstacles to fully rehabilitating Section 1983 as a strict liability tort. This Section addresses those objections and some potential paths forward.

Start with the doctrinal implications. Scholars like Daryl Levinson may argue that it is impossible to escape the constitutional rhetoric given the identity of the defendants (local governments and state actors)[408] and that fault becomes the inevitable byproduct of that necessary focus on constitutional principles. But there is little reason to believe fault is a structural necessity. Courts once applied Section 1983 as a strict liability tort.[409] That approach was uncontroversial, because it was the “very purpose” of Section 1983 “to interpose the federal courts between the States and the people” and to effectuate “a vast transformation from the concepts of federalism that had prevailed in the late 18th century.”[410] Concerns with strict liability were voiced during the debates over Section 1983, but Congress chose not to act upon them.[411] There is no doubt that Section 1983’s private right of action is constitutional,[412] and there similarly is not a plausible argument that strict liability is unconstitutional.[413] It is thus only “for Congress to decide whether it wishes to narrow” Section 1983.[414]

The purported threat that a strict liability standard would pose to federalism principles is also overblown.[415] Federalism principles might clash with strict liability only if one were to take a narrow view of our federalism,[416] confirming the fear that our system of government is designed to impede change at the federal level.[417] “After Reconstruction,” however, the version of “our federalism” that was a “by-product of the enumerated powers scheme of Article I . . . was importantly modified by superimposing a new federal check on the police power of the states.”[418] Quite simply, today, “States have no legitimate interests in allowing their officials to violate federal constitutional rights,” nor are they “required to satisfy [Section] 1983 judgments from their public fiscs” anyway.[419] To borrow Justice Ketanji Brown Jackson’s line from her recent dissent in a case invoking federalism principles to avoid the plain meaning of a broad criminal statute, this objection to Section 1983 “elevates nonexistent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog.”[420]

There are also significant practical implications that flow from the conclusion that fault has no place in the Section 1983 jurisprudence. One objection, borrowed from the pro-qualified-immunity playbook, is that fault is necessary to protect individual state officers from the crippling financial burdens of personal liability.[421] But data show that tortfeasors do not bear the cost of Section 1983 awards; their employers do.[422] And even if the tortfeasors would bear those costs in a strict liability world, it is hard to see why their response would not be to obtain liability insurance—and why, in turn, that cost would not be internalized by employers.[423] After all, though often overlooked by torts scholars, “liability insurance pays as much as eighty to eighty-five percent of all tort damages.”[424]

There are a few additional, related lines of objection worth addressing. One suggests that “imposing liability on officers is unfair when the law is in flux and they act in good faith.”[425] But even assuming other procedural protections are insufficient,[426] it is hard to see why the same argument could not be made of private torts defendants. Again, think of how Mr. Menlove was unable to act like a reasonable person and yet was held liable in negligence despite acting “to the best of his judgment.”[427]

Another objection, usually offered as a justification for qualified immunity but equally applicable to strict liability, is the view that “the more damages liability an official is threatened with, the greater the tendency toward timidity.”[428] But empirical evidence demonstrates otherwise: “Multiple studies have found that law enforcement officers infrequently think about the threat of being sued when performing their jobs.”[429]

A final objection is that courts should focus on “the constitutional duty that has allegedly been breached” and the relevant mental-state requirement so as to avoid the “impractical” consequences of opening the “floodgates” of liability.[430] But the history of the early no-fault applications of Section 1983,[431] as well as later empirical studies,[432] suggests that concern is overblown.[433] What is more, the floodgates of liability are unlikely to open given the familiar principles of proximate causation that the Supreme Court has embraced with respect to Section 1983 claims.[434]

Still, it is plausible to assume that moving towards strict liability would result in some increase in liability on state actors. If that assumption is correct, critics may press an additional objection. They may argue that Section 1983 should not provide a strict liability remedy for every deprivation of a constitutional right because, as Fallon posited, “the availability of damages remedies for all constitutional violations would likely result in a shrinking of constitutional rights.”[435] If “damages were automatically available for every search and seizure that a court deemed ‘unreasonable’ under the Fourth Amendment,” the argument goes, then “the social costs of Fourth Amendment rights would grow intolerably high,” and those costs would incentivize “a narrowing of operative standards of constitutional ‘reasonableness.’”[436] Jeffries, Levinson, and Meltzer, among others, have taken similar views.[437]

Their approach, again focused on constitutional rhetoric, fails to grapple with a key question this Article has analyzed: Whether strict liability for constitutional-right deprivations would make sense in light of tort theory. According to Congress, it did.[438] At bottom, torts are rules that, as Oliver Wendell Holmes put it, depart from “the general principle . . . that loss from accident must lie where it falls.”[439] If Section 1983 did not compensate all victims deprived of their rights under the Fourth Amendment, those losses (and the related social costs) would not magically disappear. Instead, they would merely lie where they fall. Victims would “subsidize local governments and the public by bearing the financial losses” inflicted on them,[440] undermining Section 1983’s purpose. But tort theory teaches us that, if all of those losses were instead shifted on the tortfeasors who caused them—on the cheapest cost avoiders perhaps[441]—then any pressure on courts to narrow the operative standards would quickly dissipate. Liability would encourage the adoption of policies to reduce deprivations of Fourth Amendment rights, in turn reducing the social costs of Fourth Amendment rights.

Regardless, it is far from clear that an expressly narrower right whose deprivation triggered strict liability would be worse than a broader right whose deprivation went unremedied. Indeed, the worry that increased liability under Section 1983 could lead courts to shrink rights is a curious one. After all, this Article has shown how courts have already narrowed the scope of rights indirectly through the injection of fault into the analysis. Because of that narrowing, plaintiffs are often unable to obtain a remedy for rights deprivations: Either proving fault or overcoming qualified immunity is too difficult. If the result of removing those fault-based obstacles were an effort by the courts to narrow the scope of rights more directly, strict liability would nonetheless ensure that those plaintiffs who were deprived of a narrowly defined right could always recover damages, regardless of their ability to prove fault or overcome qualified immunity.

In the end, whether the prospect of increased liability is a drawback or an advantage of this Article’s thesis depends on normative judgments about the role of litigation in our system of government. Political theorists, such as Sean Farhang, have already provided compelling analyses of the central role of litigation and its benefits to our system of government.[442] As far as this Article’s argument goes, there can be little doubt that, when a legislature creates a statutory tort such as Section 1983, it does so with an eye towards building a system capable of continuously reaffirming and pursuing specific public goals through means of private enforcement. That “system building” feature of Section 1983 hinges on the continued viability and vitality of its cause of action.

What is the path forward, then? This Article’s interpretation of Section 1983 largely rests on text, history, and purpose. Thus, the conclusion that fault has no place in a Section 1983 claim does not require any congressional action. But the weight of judicial precedent interpreting Section 1983 as a fault-based tort is significant, and the argument for strict liability is seemingly made even harder by the “super” stare decisis that attaches to statutory interpretations.[443]

That precedent is less of an obstacle than one might think, for several reasons. First, the invocation of stare decisis cuts both ways. After all, as discussed in Part II.A, the early Supreme Court decisions on Section 1983 embraced strict liability.[444] Second, as noted in Part II.C, most of the precedent interpreting Section 1983 as a fault-based tort involves constitutional interpretation. And recent decisions on constitutional torts—those causes of action implied directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents[445]—have demonstrated no hesitance to cut back on decades of precedent in the name of a newly found respect for Congress’s role.[446] Third, this Article’s view of Section 1983 as a strict liability tort does not challenge every Section 1983 precedent. For example, absolute immunities[447] may be able to survive as defenses to liability, so long as they do not undermine Section 1983’s no-fault principle.[448] Fourth, and in any event, the Supreme Court has not been shy to disregard the presumption against overruling statutory precedent.[449] As the Court has recognized in overruling qualified-immunity decisions, stare decisis “is not an inexorable command.”[450] There should be even less resistance because the current preferred modes of statutory interpretation[451] plainly require adherence to the plain meaning of Section 1983’s text.[452]

Still, the undeniable practical hurdle to fully restoring Section 1983’s strict liability nature remains. To do away with fault completely, either Congress must abrogate a whole lot of precedent by reaffirming the plain meaning of Section 1983, or the Court must overrule that precedent. This Article has demonstrated that either path would reinstitute a conceptually coherent system. But it would be foolish to deny that neither scenario is likely to materialize in the near future. For readers more interested in a practical solution than the right answer, a less conceptually pure approach may well be palatable.[453] Perhaps the Court could selectively do away with mental-state requirements for some Section 1983 claims, such as deprivations of due process rights, where the motivation for the injection of fault was patently policy driven.[454] Alternatively, the Court could reject extraneous state-of-mind requirements but deem qualified immunity a necessary compromise[455] and attempt to reform the doctrine consistent with strict liability.[456]

Ultimately, picking the precise path forward is well beyond the scope of this Article. This Article is concerned with identifying the correct (even if impractical) answer. That answer is that the Section 1983 jurisprudence, which has gradually transformed a strict liability statutory tort into a fault-based constitutional tort, requires fundamental reassessment—if not outright repudiation. More fundamentally, this Article seeks to diagnose and expose the doctrinal and theoretical errors behind the rewriting of Section 1983. That exercise has value, too. It has the potential of empowering the courts to “make a clearer and more responsible decision” about whether their “choices are the right ones” for reasons other than tort theory or faithfulness to statutory text, history, and purpose “or whether . . . the [courts] should now take some of it back.”[457]

Conclusion

This Article argues that the current jurisprudence on Section 1983, which has gradually transformed the statute from its original strict liability foundation into a fault-based constitutional tort, is deeply flawed as a matter of tort theory. Those judicial reinterpretations of Section 1983 have imposed unwarranted fault-based requirements that significantly dilute the statute’s effectiveness. They have also shifted the focus away from the clear textual mandate and historical intent of the Reconstruction Congress. A complete or partial return to the strict liability model envisioned by the drafters of Section 1983 and faithfully applied by the courts in the statute’s early years is both necessary as a matter of statutory interpretation and more coherent as a matter of tort theory. By eliminating fault, courts could better fulfill Section 1983’s purpose: leveraging private mechanisms of enforcement to put an end to rights deprivations on the part of state actors.

In closing, it is important to acknowledge how this Article’s approach to Section 1983, highlighting the dualism of tort law, calls for the articulation of a theory of statutory torts. That theory will have to wait for another day. For now, it suffices to say the following: What is distinctive about statutory torts is that, like Section 1983, they empower legislatures to label specific injuries as civil wrongs and to set collectively a price for the infliction of those wrongs. They are one of the legislature’s best regulatory tools because, unlike criminal law or administrative law, they can define and achieve specific public-law goals through private-law means. Through their layered expressive force, statutory torts are mechanisms to shape society’s values—they are “system building” tools. A theory of statutory torts is overdue and much needed.[458] And it could ensure that other statutory torts do not suffer the same fate as Section 1983: a strict liability tort that no longer achieves its goals efficiently or effectively because of the judicial creation of atextual fault requirements.

Copyright © 2025 Matteo Godi, Assistant Professor of Law, University of Southern California Gould School of Law. For conversations and comments, I am thankful to Guido Calabresi, Jonathan Cardi, Zachary Clopton, Tony Derron, Bill Eskridge, Dennis Fan, Brenner Fissell, Mark Geistfeld, Betsy Ginsberg, Alison Gocke, John C.P. Goldberg, Monica Haymond, Greg Keating, Doug Kysar, Brian Lipshutz, Kerrel Murray, Michael Pollack, Bob Rasmussen, Teri Ravenell, Alex Reinert, Noah Rosenblum, Tony Sebok, Sarah Swan, Cathy Sharkey, Nadav Shoked, Karen Tani, Cristina Carmody Tilley, Michael Wells, Garrett West, John Witt, and Ben Zipursky. Special thanks also to the students in my Spring 2023 “Statutory Torts” seminar at Yale Law School, and to Rakhi Kundra, Alex Ward, and the other meticulous editors of the California Law Review. And, as ever, I thank Erin Alexander.

           [1].     Section 1983 is used to challenge deprivations of constitutional rights, see, e.g., Bourke v. Beshear, 996 F. Supp. 2d 542, 547 (W.D. Ky.), rev’d sub nom., DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d sub nom., Obergefell v. Hodges, 576 U.S. 644 (2015) (right to same-sex marriage); Amended Complaint at 2, Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951), rev’d, 349 U.S. 294 (1955) (Civ. No. T-316) (right to integrated education); Parker v. District of Columbia, 478 F.3d 370, 374 (D.C. Cir. 2007), aff’d sub nom., District of Columbia v. Heller, 554 U.S. 570 (2008) (right to bear arms regardless of any relationship to a militia), as well as deprivations of statutory rights, see, e.g., Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 171 (2023) (Federal Nursing Home Reform Act); Cannon v. Univ. of Chi., 441 U.S. 677, 691 (1979) (Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964).

           [2].     The phrase “constitutional torts” is traditionally used to refer to claims under Section 1983 for deprivations of constitutional rights and the implied cause of action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See, e.g., Marshall S. Shapo, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond, 60 Nw. U. L. Rev. 277, 279 (1966); see also Christina Whitman, Constitutional Torts, 79 Mich. L. Rev. 5, 15 (1980). Entire casebooks have been written about constitutional torts. See, e.g., Sheldon H. Nahmod, Michael L. Wells & Fred O. Smith, Jr., Constitutional Torts (5th ed. 2020). Because this Article focuses on Section 1983 claims regardless of whether they arise from deprivations of constitutional or statutory rights, it will refrain from describing Section 1983 as a constitutional tort. And because the Section 1983 cause of action is codified by statute (and not implied from the Constitution, like Bivens claims), this Article will refer to Section 1983 as a statutory tort.

           [3].     See Christina Brooks Whitman, Emphasizing the Constitutional in Constitutional Torts, 72 Chi.-Kent L. Rev. 661, 661–62 (1997); Sheldon Nahmod, Section 1983 Discourse: The Move from Constitution to Tort, 77 Geo. L.J. 1719, 1720 (1989).

           [4].     Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 Mich. L. Rev. 225, 226 (1986); see also Nahmod, supra note 3, at 1720, 1722 n.13 (arguing that the “tort rhetoric” demonstrates an effort to “marginalize” Section 1983, making it “less protective”); Charles F. Abernathy, Section 1983 and Constitutional Torts, 77 Geo. L.J. 1441, 1445–47 (1989) (referring to the “transformation of [Section] 1983 into a tort-like statute,” and arguing that “it is time for us to consider constitutional torts as . . . Constitutional Law III”).

           [5].     E. Garrett West, Refining Constitutional Torts, 134 Yale L.J. 858, 863, 944 (2025).

           [6].     Some courts took issue with the strict liability nature of Section 1983. See Susanah M. Mead, Evolution of the “Species of Tort Liability” Created by 42 U.S.C. § 1983: Can Constitutional Tort Be Saved from Extinction?, 55 Fordham L. Rev. 1, 5–6 (1986). Others felt that civil rights litigation was ballooning. See Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 Corn. L. Rev. 641, 642 (1987). See also infra Part II.

           [7].     Tenney v. Brandhove, 341 U.S. 367, 372, 376 (1951).

           [8].     Wyatt v. Cole, 504 U.S. 158, 167 (1992).

           [9].     In re Allen, 119 F.3d 1129, 1139 (4th Cir. 1997) (Luttig, J., dissenting).

         [10].     See Ziglar v. Abbasi, 582 U.S. 120, 156–57 (2017) (Thomas, J., concurring in part and concurring in the judgment); McKinney v. City of Middletown, 49 F.4th 730, 757 (2d Cir. 2022) (Calabresi, J., dissenting); Zadeh v. Robinson, 928 F.3d 457, 478–81 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part).

         [11].     Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1799–1800 (2018); see also Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60 (2017).

         [12].     William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 47 (2018).

         [13].     See Katherine Mims Crocker, Qualified Immunity and Constitutional Structure, 117 Mich. L. Rev. 1405, 1410–12 (2019); Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 49 (2015).

         [14].     Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Calif. L. Rev. 201, 235 (2023).

         [15].     See, e.g., Michael L. Wells, Some Objections to Strict Liability for Constitutional Torts, 55 Ga. L. Rev. 1277, 1284 (2021) (arguing against “[w]holesale repudiation of qualified immunity” because it “would, in effect, impose a kind of strict liability”); Richard H. Fallon, Jr., Constitutional Remedies: In One Era and Out the Other, 136 Harv. L. Rev. 1300, 1360 (2023).

         [16].     Shapo, supra note 2, at 305, 322, 327.

         [17].     See Laird Kirkpatrick, Defining a Constitutional Tort Under Section 1983: The State-of-Mind Requirement, 46 U. Cin. L. Rev. 45, 47–50 (1977).

         [18].     Mead, supra note 6, at 3, 14.

         [19].     John C. Jeffries, Jr., Compensation for Constitutional Torts: Reflections on the Significance of Fault, 88 Mich. L. Rev. 82, 89 (1989).

         [20].     Throughout this Article, the term “fault” is used to describe the failure to conduct oneself in the way that a reasonable person would have under the same or similar circumstances. Occasional references to “culpability” are a loose proxy for the blameworthiness that attaches to conduct undertaken with a particular mental state. Cf. Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L.J. 387, 419–20 (2002) (exploring the overlapping meanings of fault and culpability in criminal law).

         [21].     Monroe v. Pape, 365 U.S. 167, 180 (1961).

         [22].     Cristina Carmody Tilley, The Power of All: Tort in the Age of Constitution, 108 Marq. L. Rev. 241, 244 (2024); see also Douglas A. Kysar, The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism, 9 Eur. J. Risk Regul. 48, 50, 56 (2018).

         [23].     Ron Chernow, Grant 706 (2017).

         [24].     See, e.g., Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Lyman Trumbull); see also Donald H. Zeigler, A Reassessment of the Younger Doctrine in Light of the Legislative History of Reconstruction, 1983 Duke L.J. 987, 992–95 (1983).

         [25].     See generally S. Rep. No. 42-1 (1871) (recounting the pervasive state-sanctioned violence in the South).

         [26].     See Katherine A. Macfarlane, Accelerated Civil Rights Settlements in the Shadow of Section 1983, 2018 Utah L. Rev. 639, 660 (2018); Harry A. Blackmun, Section 1983 and Federal Protection of Individual Rights—Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. Rev. 1, 5 (1985).

         [27].     See Civil Rights Act of 1866, ch. 31, 14 Stat. 27.

         [28].     Id. § 1.

         [29].     Id.

         [30].     Id. § 2.

         [31].     Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 721 (1989); see also S. Ex. Doc. No. 39-31, at 1, 6 (1866) (President Andrew Johnson’s veto message); Ryan C. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493, 532–33 (2013).

         [32].     See George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866, at 90 (2013); Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. Rev. 863, 910 (1986); see also Hurd v. Hodge, 334 U.S. 24, 32–33 (1948).

         [33].     Civil Rights Act of 1870, ch. 114, § 18, 16 Stat. 140, 144; see also Runyon v. McCrary, 427 U.S. 160, 169 (1976).

         [34].     16 Stat. at 140.

         [35].     See Act of March 2, 1867, ch. 153, 14 Stat. 428; Act of March 23, 1867, ch. 6, 15 Stat. 2; Act of July 19, 1867, ch. 30, 15 Stat. 14; Act of March 11, 1868, ch. 25, 15 Stat. 41.

         [36].     See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 30 (2010); John Hope Franklin, Reconstruction After the Civil War 157–58 (2d ed. 1994); Eric Foner, A Short History of Reconstruction, 1863–1877, at 184 (1990). See generally Allen W. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction 3–28 (1971); Susan Lawrence Davis, Authentic History, Ku Klux Klan, 1865–1877 (1924).

         [37].     See S. Rep. No. 42-1 (1871) (containing first-hand accounts of the Klan’s outrages); Lisa Cardyn, Sexualized Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South, 100 Mich. L. Rev. 675, 699–762 (2002) (focusing on gender-based violence).

         [38].     Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery 276–77 (1979).

         [39].     Cong. Globe, 42d Cong., 1st Sess. app. 78 (1871) (statement of Rep. Aaron Perry); see also Mitchum v. Foster, 407 U.S. 225, 240–241 (1972); Robin D. Barnes, Blue by Day and White by (K)night: Regulating the Political Affiliations of Law Enforcement and Military Personnel, 81 Iowa L. Rev. 1079, 1099 (1996); Zeigler, supra note 24, at 1013.

         [40].     Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 Corn. L. Rev. 482, 485 (1982).

         [41].     Mitchum, 407 U.S. at 242.

         [42].     See Jack M. Beermann, The Supreme Court’s Narrow View on Civil Rights, 1993 Sup. Ct. Rev. 199, 204–12; Frederick M. Lawrence, Civil Rights and Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67 Tul. L. Rev. 2113, 2140–46 (1993). After the Senate’s voluminous report on the outrages, legislation was introduced with the goal of creating an effective system of regulation. President Ulysses Grant eventually recognized that “[a] condition of affairs now exists in some of the states of the Union rendering life and property insecure.” Cong. Globe, 42d Cong., 1st Sess. app. 78 (1871). For an overview of that history, see generally David Achtenberg, A “Milder Measure of Villainy”: The Unknown History of 42 U.S.C. 1983 and the Meaning of “Under Color of” Law, 1999 Utah L. Rev. 1 (1999).

         [43].     Cong. Globe, 42d Cong., 1st Sess. app. 67–69 (1871) (statement of Rep. Samuel Shellabarger).

         [44].     Id. at 67 (statement of Rep. Samuel Shellabarger).

         [45].     Id. at 68 (statement of Rep. Samuel Shellabarger); id. at 461 (statement of Rep. John Coburn).

         [46].     Id. at app. 820 (statement of Sen. George Edmunds).

         [47].     Civil Rights Act of 1871, ch. 22, § 2, 17 Stat. 13.

         [48].     Mitchum v. Foster, 407 U.S. 225, 239 n.30 (1972).

         [49].     Id. at 238.

         [50].     But see United States v. Williams, 341 U.S. 70, 74 (1951). To the Court, “[t]he dominant conditions of the Reconstruction Period were not conducive to the enactment of carefully considered and coherent legislation.” Stefanelli v. Minard, 342 U.S. 117, 121 (1951).

         [51].     See Kevin J. Hamilton, Section 1983 and the Independent Contractor, 74 Geo. L.J. 457, 460 (1985).

         [52].     Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13. The second clause of this section created federal jurisdiction over the cause of action described in the first clause: “such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the [Civil Right Act of 1866], and the other remedial laws of the United States which are in their nature applicable in such cases.” Id.

         [53].     See Hornsby v. Allen, 326 F.2d 605, 610–11 (5th Cir. 1964); Shapo, supra note 2, at 322 (“[I]t seems questionable that a breach of this constitutional shield must in all cases call forth the response of this statutory sword.”); Mead, supra note 6, at 2 n.9 (“It is th[e] absence of any fault requirement that gives § 1983 its strict liability character.”); see also infra Part II (discussing the pushback against imposition of strict liability under Section 1983 on individual tortfeasors).

         [54].     Congress directed President Johnson to appoint a commission to simplify, organize, and consolidate all federal statutes. See Act of June 27, 1866, ch. 140, 14 Stat. 74; see also Act of May 4, 1870, ch. 72, 16 Stat. 96. The commission spent a decade producing the volume enacted by Congress as the Revised Statutes of 1874. See Ralph H. Dwan & Ernest R. Feidler, The Federal Statutes—Their History and Use, 22 Minn. L. Rev. 1008, 1012–15 (1938); see also Will Tress, Lost Laws: What We Can’t Find in the U.S. Code, 40 Golden Gate U. L. Rev. 129, 135 (2010).

         [55].     24 Rev. Stat. § 1979 (1875). The jurisdictional clause of Section 1 of the 1871 Act was codified at various sections of the Revised Statutes. See 13 Rev. Stat. §§ 563(12), 629(16), 722 (1875).

         [56].     That is not surprising, most might think, given that the Revised Statutes “was primarily a codification of the general statutes then in force.” United States v. Sischo, 262 U.S. 165, 168–69 (1923) (emphasis added); see also Preface to Revised Statutes of the United States, at v (1878).

         [57].     2 Cong. Rec. 827 (1874) (statement of Rep. William Lawrence). To be sure, when there is a conflict between the law as codified in the Revised Statutes and the Statutes at Large, the Statutes at Large control. See U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 (1993); United States v. Welden, 377 U.S. 95, 98 n.4 (1964); Stephan v. United States, 319 U.S. 423, 426 (1943).

         [58].     Another series of important amendments relates to the geographic reach of Section 1983. “[P]resumably” pursuant to its power under Article IV of the Constitution, Congress added, without explanation, the words “or Territory.” Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 582–83 (1976). Following District of Columbia v. Carter, 409 U.S. 418 (1973), holding that the District did not constitute a “State or Territory,” Congress further amended Section 1983 to cover unequivocally “any State or Territory or the District of Columbia.” See Pub. L. No. 96-170, 93 Stat. 1284 (1979).

         [59].     See Reinert, supra note 14, at 207; Price v. Montgomery Cnty., 144 S. Ct. 2499, 2499 (2024) (Sotomayor, J., dissenting from denial of certiorari).

         [60].     See Maine v. Thiboutot, 448 U.S. 1, 7 (1980). Section 1983 may be invoked to enforce rights secured by, among others, Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964, see Cannon v. Univ. of Chi., 441 U.S. 677, 691 (1979); the Federal Housing Act, see DeCambre v. Brookline Hous. Auth., 826 F.3d 1, 11 (1st Cir. 2016); the Federal Nursing Home Reform Act, see Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 171 (2023); the Medicaid Act, see Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 500 (1990); and the Public Housing Act, see Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 430 (1987). The relevant statute must “unambiguously confe[r]” an enforceable right, see Gonzaga Univ. v. Doe, 536 US. 273, 283 (2002), but somehow fall short of creating its own “remedial devices” that are “sufficiently comprehensive” to preclude implicitly Section 1983 enforcement, see Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981).

         [61].     See, e.g., Steven L. Winter, The Meaning of “Under Color of” Law, 91 Mich. L. Rev. 323, 325–27 (1992) (supporting an expansive reading of “under color”); Eric H. Zagrans, “Under Color of” What Law: A Reconstructed Model of Section 1983 Liability, 71 Va. L. Rev. 499, 500–01 (1985) (narrow reading).

         [62].     See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999) (“[T]here can be no doubt that claims brought pursuant to § 1983 sound in tort.”); id. at 727 (Scalia, J., concurring) (“There is no doubt that the cause of action created by § 1983 is, and was always regarded as, a tort claim.”); see also Michael L. Wells, Marshall Shapo’s Constitutional Tort Fifty-Five Years Later, 115 Nw. U. L. Rev. 256, 259 (2020).

         [63].     John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 Harv. L. Rev. 383, 315 (1894).

         [64].     Thomas M. Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract 4 (1879).

         [65].     William Prosser, Handbook of the Law of Torts 197 (4th ed. 1971) (stating that where a statute provides that “the defendant may become liable on the mere basis of [their] violation of the statute,” and “[n]o excuse is recognized, and neither reasonable ignorance nor all proper care will avoid liability,” that statute falls “under the head of strict liability”).

         [66].     William Prosser & William Keeton, The Law of Torts § 75, at 534 (5th ed. 1984); see also Prosser, supra note 65, at 197.

         [67].     James Barr Ames, Law and Morals, 22 Harv. L. Rev. 97, 99 (1908). Cf. Richard A. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan. L. Rev. 731, 731 (1960) (referring to strict liability crimes as those imposing “criminal sanctions in the absence of any requisite mental state”).

         [68].     John C.P. Goldberg & Benjamin C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability, 85 Fordham L. Rev. 743, 748 (2016). For a cogent critique, see Gregory C. Keating, Is There Really No Liability Without Fault?: A Critique of Goldberg & Zipursky, 85 Fordham L. Rev. Res Gestae 24 (2017).

         [69].     Goldberg & Zipursky, supra note 68, at 745; see also, e.g., Richard A. Posner, Strict Liability: A Comment, 2 J. Legal Stud. 205, 205 n.2 (1973); Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale. L.J. 1055, 1056–57 (1972); Cornelius J. Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225, 225–26 (1971).

         [70].     Kenneth S. Abraham, Strict Liability in Negligence, 61 DePaul L. Rev. 271, 274 (2012).

         [71].     Keating, supra note 68, at 26; see also Gregory C. Keating, Reasonableness and Risk: Right and Responsibility in the Law of Torts 232–35 (2022).

         [72].     Cleveland Park Club v. Perry, 165 A.2d 485, 487–88 (D.C. 1960) (“The rationale of this position is that the purpose of civil law looks to compensation for the injured party regardless of the intent on the part of the trespasser.”).

         [73].     See Cooley, supra note 64, at 438–39.

         [74].     See Civil Rights Act of 1871, ch. 22, §§ 2, 6, 17 Stat. 13–15.

         [75].     Id. § 2 (now codified at 42 U.S.C. § 1985).

         [76].     Id. § 6 (now codified at 42 U.S.C. § 1986).

         [77].     See infra Part IV (discussing the most common policy arguments in favor of reading state-of-mind requirements into Section 1983).

         [78].     See Tyler B. Lindley, Anachronistic Readings of Section 1983, 75 Ala. L. Rev. 897, 900, 923 (2024); see also Williams v. Reed, 145 S. Ct. 465, 474 n.* (2025) (Thomas, J., dissenting) (suggesting in a footnote that over a century of precedent allowing plaintiffs to invoke the Section 1983 cause of action should be reconsidered).

         [79].     Lindley, supra note 78, at 900–02, 923. Lindley’s best evidence of Congress’s intent appears to be a statement by one of Section 1983’s opponents: “This section relates wholly to civil suits. It creates no new cause of action.” Cong. Globe, 42d Cong., 1st Sess. app. 216 (1871) (statement of Rep. Allen Thurman). But, in context, those sentences mean that Representative Thurman saw Section 1983 as creating a new (federal statutory) tort and codifying existing forms of action, rather than creating a new form of action for that new tort—much like he viewed other sections of the Civil Rights Act of 1871 as providing that “[t]hese are to be [federal] crimes,” though “[m]ost of them are already crimes” under state law. Id. at app. 217; see also id. at app. 50 (statement of Rep. Michael Kerr) (“This section gives to any person . . . a civil action for damages against the wrongdoer in the [f]ederal courts,” and it thus “may give rise to numerous vexatious and outrageous prosecutions . . . more reckless and dangerous to society than the alleged offenses out of which the cause of action may have arisen.”).

         [80].     See infra notes 148–152, 293 and accompanying text (discussing cases analogizing Section 1983 claims to trespass-like actions). After all, at common law, trespass could be brought both at law, see Entick v. Carrington (1765) 95 Eng. Rep. 807 (KB), and in equity, see Mitchell v. Dors (1801) 6 Ves. Jun. 147 (Ch) (citing Flamang’s Case); Thomas v. Oakley (1811) 34 Eng. Rep. 287 (Ch); see also Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).

         [81].     Compare Lindley, supra note 78, at 923 (“This part of [S]ection 1983 is more accurately viewed as codifying preexisting constitutional rights, such that the substantive right underlying the form of proceeding comes from [S]ection 1983.”), with Anthony J. Bellia Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 789 (2004) (“[A] plaintiff [could] state a cause of action at law in England and America in the late eighteenth and early nineteenth centuries” by “set[ting] forth in strict legal form the combination of facts or events that enabled a plaintiff to invoke one of the forms of action for a remedy,” including “the plaintiff’s right.”).

         [82].     Carter v. Greenhow, 114 U.S. 317, 321 (1885); see also id. at 323 (holding that “it is not necessary” to “enumerate the several descriptions of rights secured to individuals by the [C]onstitution, the deprivation of which, by any person, would subject the latter to an action for redress under [S]ection [1983],” because “the declaration now before [the Court] does not show a cause of action within [the] terms” of the statute); Hague v. Comm. for Indus. Org., 307 U.S. 496, 525 (1939) (speaking of the “right of action” under Section 1983).

         [83].     Fed. R. Civ. P. 2.

         [84].     Alexander v. Sandoval, 532 U.S. 275, 286 (2001); see also Bellia, supra note 81, at 781 (“To determine whether a cause of action exists today, we tend to ask . . . whether, in light of all legal determinants that relate to a particular transaction or occurrence, the plaintiff is entitled to some form of judicial relief.”).

         [85].     451 U.S. 527, 548 (1981) (Powell, J., concurring) (citing Webster’s New International Dictionary of the English Language (William Allan Neilson, Thomas A. Knott & Paul W. Carhart eds., 2d ed. 1945)); see also Daniels v. Williams, 474 U.S. 327, 330–31 (1986) (“Upon reflection, we . . . overrule Parratt to the extent that it states that mere lack of due care by a state official may ‘deprive’ an individual of life, liberty, or property under the Fourteenth Amendment.”); Davidson v. Cannon, 474 U.S. 344, 347 (1986) (affirming ruling that the plaintiff “had failed to make out a violation of his procedural or substantive due process rights” because Section 1983 “provides no remedy for the type of negligence found in this case”) (internal quotation marks and citation omitted)).

         [86].     See Parratt, 451 U.S. at 548.

         [87].     See id. at 549.

         [88].     373 U.S. 83, 87 (1963). But see Parratt, 451 U.S. at 553 (Powell, J., concurring) (“As I do not consider a negligent act the kind of deprivation that implicates the procedural guarantees of the Due Process Clause, I certainly would not view negligent acts as violative of these substantive guarantees.”).

         [89].     See Josef E. Worcester, A Dictionary of the English Language 386 (1860); Noah Webster, An American dictionary of the English Language 321 (1860); 1 Benjamin Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 368 (1879).

         [90].     474 U.S. 327, 341 (1986) (Stevens, J., concurring) (“The harm to a prisoner is the same whether a pillow is left on a stair negligently, recklessly, or intentionally.”).

         [91].     Cf. Fleming James, Jr., Tort Liability of Governmental Units and Their Officers, 22 U. Chi. L. Rev. 610, 654 (1955) (“If Miller’s healthy horse is killed because a board of health mistakenly thinks it is diseased, why should Miller’s compensation by the community depend on whether or not the mistake was reasonable? His injury is the same in either event.”).

         [92].     See N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 305 (2017); see also Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000) (“Congress says in a statute what it means and means in a statute what it says there.”); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990).

         [93].     Cong. Globe, 42d Cong., 1st Sess. 365 (1871) (statement of Rep. William Arthur).

         [94].     Id. at 385 (statement of Rep. Joseph Lewis).

         [95].     Id. at 366 (statement of Rep. William Arthur).

         [96].     Id. at 365 (statement of Rep. William Arthur). But see A.V. Dicey, Lectures: Introductory to the Study of the Law of the Constitution 178 (1885) (“The [English] Reports abound with cases in which officials have been brought before the Courts and made in their personal capacity liable to punishment or to the payment of damages for act done in their official character but in excess of their lawful authority.”); Warne v. Varley (1795) 101 Eng. Rep. 639 (KB) (holding officer liable as trespasser despite good-faith conduct).

         [97].     John Gardner, Obligations and Outcomes in the Law of Torts, in Relating to Responsibility: Essays for Tony Honoré on his Eightieth Birthday 111, 113 (Peter Cane & John Gardner eds., 2001).

         [98].     See Garland v. Cargill, 602 U.S. 406, 430 (2024) (Sotomayor, J., dissenting); see also Lake v. Neal, 585 F.3d 1059, 1059 (7th Cir. 2009).

         [99].     See, e.g., Egbert v. Boule, 596 U.S. 482, 486 (2022) (“[P]rescribing a cause of action is a job for Congress, not the courts.”).

       [100].     See sources cited supra note 10 (citing cases that have recently started to question the origins of qualified immunity).

       [101].     See People of State of Illinois v. Chicago & A.R. Co., 12 F. Cas. 1197, 1198 (C.C.S.D. Ill. 1874) (No. 7,006) (emphasis added).

       [102].     Though Section 1983 claims became more common starting in the 1930s, see sources cited infra notes 123–124, 150–151 (citing a handful of those later decisions), a non-exhaustive count suggests that the correct number over the same (somewhat arbitrary) fifty-year timeframe is at least 30 percent higher than previously believed. Cf. Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting) (referring to “only 21 cases” between 1871 and 1921); Comment, Civil Rights Act: Emergence of an Adequate Federal Civil Remedy?, 26 Ind. L.J. 361, 363 (1951).

                    Most of those cases were in the lower courts. See Nw. Fertilizing Co. v. Hyde Park, 18 F. Cas. 393, 393 (C.C.N.D. Ill. 1873) (No. 10,336); Chicago & A.R. Co., 12 F. Cas. at 1198; Bertonneau v. Bd. of Directors of City Schs., 3 F. Cas. 294, 295 (C.C.D. La. 1878) (No. 1,361); Ho Ah Kow v. Nunan, 12 F. Cas. 252, 256 (C.C.D. Cal. 1879) (No. 6,546); Baltimore & O.R. Co. v. Allen, 17 F. 171, 179 (C.C.W.D. Va. 1883); Tuchman v. Welch, 42 F. 548, 558 (C.C.D. Kan. 1890); M. Schandler Bottling Co. v. Welch, 42 F. 561, 566 (C.C.D. Kan. 1890); Hemsley v. Meyers, 45 F. 283, 289 (C.C.D. Kan. 1891); Davenport v. Cloverport, 72 F. 689, 693 (D. Ky. 1896); Fraser v. McConway & Torley Co., 82 F. 257, 259 (C.C.D. Pa. 1897); Philbrook v. Newman, 85 F. 139, 141–42 (C.C.N.D. Cal. 1898); Cal. Oil & Gas Co. of Ariz. v. Miller, 96 F. 12, 22 (C.C.S.D. Cal. 1899); Aultman & Taylor Co. v. Brumfield, 102 F. 7, 12 (C.C.N.D. Ohio 1900); United States v. Bell, 135 F. 336, 339 (3d Cir. 1905); Wadleigh v. Newhall, 136 F. 941, 946 (N.D. Cal. 1905); Brickhouse v. Brooks, 165 F. 534, 534 (C.C.D. Va. 1908); Brawner v. Irvin, 169 F. 964, 966 (N.D. Ga. 1909); Simpson v. Geary, 204 F. 507, 511 (D. Ariz. 1913); Raich v. Truax, 219 F. 273, 277 (D. Ariz. 1915); Marcus Brown Holding Co. v. Pollak, 272 F. 137, 139 (S.D.N.Y. 1920).

                    Some reached the Supreme Court. See Carter v. Greenhow, 114 U.S. 317, 320–22 (1885); Pleasants v. Greenhow, 114 U.S. 323, 324 (1885); Bowman v. Chi. & Nw. Ry., 115 U.S. 611, 615 (1885); Green v. Elbert, 137 U.S. 615, 616 (1891); Holt v. Ind. Mfg. Co., 176 U.S. 68, 69 (1899); Crystal Springs Land & Water Co. v. City of L.A., 76 F. 148, 154 (C.C.S.D. Cal. 1896), aff’d, 177 U.S. 169 (1900); Giles v. Harris, 189 U.S. 475, 484–85 (1902); Anglo-Am. Provision Co. v. Davis Provision Co., 105 F. 536, 537 (S.D.N.Y. 1900), aff’d, 191 U.S. 376 (1903); Devine v. Los Angeles, 202 U.S. 313, 316 (1906); Moyer v. Peabody, 212 U.S. 78, 83 (1909); Myers v. Anderson, 238 U.S. 368, 371 (1915).

                    Commentators have pointed out that the scarcity of Section 1983 claims may have been a blessing in disguise, as “most of the effective civil rights laws were repealed in 1894.” Eisenberg, supra note 40, at 519 n.153. But, in those years, there were fewer lawsuits of all kinds and fewer constitutional rights incorporated against the States, see Baude, supra note 12, at 65, and any effort to count accurately all Section 1983 cases from these early years is hindered by the difficulty of tracking down the parties’ pleadings and the inconsistency of citations to the relevant statute in judicial opinions.

       [103].     Some have attributed the increase in Section 1983 litigation to Monroe v. Pape, 365 U.S. 167 (1961). See, e.g., Karen M. Blum, Section 1983 Litigation: The Maze, The Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 913 (2015) (referring to Monroe as the “case that resurrected [Section 1983] as a viable remedy for those whose constitutional rights were violated by officials acting under color of state law”); Pamela S. Karlan, Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1, 25–27 (2012) (discussing the impact of Monroe on Section 1983 claims). Others have pointed to the incorporation of rights under the Fourteenth Amendment. See, e.g., Louise Weinberg, The Monroe Mystery Solved: Beyond the “Unhappy History” Theory of Civil Rights Litigation, 1991 BYU L. Rev. 737, 745–48 (1991); Ilan Wurman, Qualified Immunity and Statutory Interpretation, 37 Seattle U. L. Rev. 939, 977 (2014). It seems difficult to untangle the two trends.

       [104].     Adickes v. S.H. Kress & Co., 398 U.S. 144, 231 (1970) (Brennan, J., concurring in part and dissenting in part).

       [105].     Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 177 (2023).

       [106].     West, supra note 5, at 927.

       [107].     Goldberg & Zipursky, supra note 68, at 745 (“According to prevailing academic usage, . . . [a] defendant subject to strict liability must pay damages irrespective of whether she has met, or failed to meet, an applicable standard of conduct. Action that causes harm is all that is required. By contrast, fault-based liability is conceived as liability predicated on . . . on the defendant having been ‘at fault,’ i.e., having failed to act as required.”).

       [108].     For additional surveys of the early interpretations of Section 1983 not focused on the transition from strict liability to fault liability, see, for example, Note, The Background of Section 1983, 90 Harv. L. Rev. 1137, 1156–75 (1977); Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv. L. Rev. 1486, 1489–93 (1969); John G. Niles, Civil Actions for Damages Under the Federal Civil Rights Statutes, 45 Tex. L. Rev. 1015, 1027–30 (1967).

       [109].     Scholars have erroneously attributed the rise of fault to “tort rhetoric.” Nahmod, supra note 3, at 1730–31 n.77; see also Sheldon H. Nahmod, Section 1983 and the “Background” of Tort Liability, 50 Ind. L.J. 5, 9 (1974) (claiming that torts and Section 1983 “serve different purposes and protect different interests”); Richard H. Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933, 966 (2019) (arguing that “a tort-law-based conceptual scheme [for Section 1983] fails to mark the categories of legal norms that most urgently require judicial enforcement against public officials for the rule of law to thrive in the modern era”).

       [110].     Early critics believed these setbacks were fatal to Section 1983’s “usefulness.” See Milton R. Konvitz, The Constitution and Civil Rights 100–01 (1947).

       [111].     See 83 U.S. 36, 68 (1873) (holding that the “privileges and immunities” that “belong to citizens of the States as such . . . are left to the State governments for security and protection, and not by [the Fourteenth Amendment] placed under the special care of the Federal government”).

       [112].     See Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 986 (7th ed. 2015); David Lyons, Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow, 84 B.U. L. Rev. 1375, 1388 n.69 (2004); Marianne L. Engelman Lado, A Question of Justice: African-American Legal Perspectives on the 1883 Civil Rights Cases, 70 Chi.-Kent L. Rev. 1123, 1124–25 (1995); Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. Rev. 1297, 1329 (1994).

       [113].     See 109 U.S. 3, 23–25 (1883). The Court would later clarify that “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” United States v. Classic, 313 U.S. 299, 326 (1941). That is, “under ‘color’ of law means under ‘pretense’ of law.” Screws v. United States, 325 U.S. 91, 111 (1945).

       [114].     See, e.g., Brawner v. Irvin, 169 F. 964, 966 (C.C.N.D. Ga. 1909) (dismissing Section 1983 action because “the right of an individual to life, liberty, and property, and to be free from molestation, is primarily and originally the right of a citizen of the state of which the individual is an inhabitant”); see also Eisenberg, supra note 40, at 505–06; Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1337 (1952).

       [115].     Bertonneau v. Bd. of Directors of City Schs., 3 F. Cas. 294, 295–96 (C.C.D. La. 1878) (No. 1,361).

       [116].     Ho Ah Kow v. Nunan, 12 F. Cas. 252, 253 (C.C.D. Cal. 1879) (No. 6,546) (Field, J.); see Sarah J. Adams-Schoen, The White Supremacist Structure of American Zoning Law, 88 Brook. L. Rev. 1225, 1241–42 (2023) (discussing the infamous “queue ordinance”).

       [117].     Keating, supra note 68, at 26 (describing strict liability).

       [118].     Ho Ah Kow, 12 F. Cas. at 256.

       [119].     See, e.g., Hague v. Comm. for Indus. Org., 307 U.S. 496, 531 (1939) (suggesting that jurisdiction over Section 1983 claims exists “[w]henever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of a property right”); Holt v. Ind. Mfg. Co., 176 U.S. 68, 72 (1900) (reasoning that, because Section 1983 protects only “civil rights,” it does not encompass constitutional challenge on state tax practices). But see Lynch v. Household Fin. Corp., 405 U.S. 538, 542 (1972) (limiting the holdings of Holt and Hague to tax cases).

       [120].     See, e.g., Barney v. City of New York, 193 U.S. 430, 437–38, 441 (1904) (reasoning that, because the complaint alleged that the challenged conduct “was not only not authorized, but was forbidden by the [state] legislation, and hence was not action by the State of New York,” it was for “the state courts to remedy acts of state officers done without the authority of, or contrary to, state”); see also Samuel Shepp Isseks, Jurisdiction of the Lower Federal Courts to Enjoin Unauthorized Action of State Officials, 40 Harv. L. Rev. 969, 988 (1927) (arguing that a federal court “should, within its discretion, deny injunctive relief against state administrative action alleged to violate the Federal Constitution when it appears that such administrative action is unauthorized or prohibited by state statute or constitution”).

       [121].     See Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 178 (2023).

       [122].     See, e.g., Wolf v. Colorado, 338 U.S. 25, 27 (1949) (holding that only the “core of the Fourth Amendment” protections are incorporated against the States); Powell v. Alabama, 287 U.S. 45, 72–73 (1932) (holding that the right to counsel is a right incorporated against the States in certain cases); Gitlow v. New York, 268 U.S. 652, 666 (1925) (holding that freedom of speech and of the press is incorporated against the States). See generally Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253 (1982) (surveying and critiquing the evolution of incorporation); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation, 2 Stan. L. Rev. 140 (1949) (tracing the judicial debate over incorporation).

       [123].     Grovey v. Townsend, 295 U.S. 45, 46 (1935), overruled by, Smith v. Allwright, 321 U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73, 81 (1932); Nixon v. Herndon, 273 U.S. 536, 540 (1927).

       [124].     See Nixon v. Condon, 34 F.2d 464, 465 (W.D. Tex. 1929), aff’d, 49 F.2d 1012 (5th Cir. 1931), rev’d, 286 U.S. 73 (1932) (acknowledging that Dr. Nixon sued under Section 1983, then codified at 8 U.S.C. § 43); Brief for Plaintiff in Error at 3, Nixon v. Herndon, 273 U.S. 536 (No. 117) (same).

       [125].     See Herndon, 273 U.S. at 540.

       [126].     Id.

       [127].     See Anderson v. Myers, 182 F. 223, 224 (C.C.D. Md. 1910); Brickhouse v. Brooks, 165 F. 534, 534–35 (C.C.E.D. Va. 1908).

       [128].     See Myers, 182 F. at 224, 229; Brickhouse, 165 F. at 534–35.

       [129].     See Myers, 182 F. at 226 (defendants argued that the complaint “fails to allege that the defendants . . . did or failed to do any act to the prejudice or injury of the plaintiffs either willfully, maliciously, fraudulently, or corruptly, so as to render them . . . legally liable to the plaintiffs”); Brickhouse, 165 F. at 536 (defendants argued that the complaint “does not allege . . . any cause of action against them” because “it does not allege that the acts of the defendants complained of were maliciously corrupt or willfully wrongful”); see also Seth F. Kreimer, The Source of Law in Civil Rights Actions: Some Old Light on Section 1988, 133 U. Pa. L. Rev. 601, 609 n.34 (1985) (mentioning Myers and Brickhouse in a footnote).

       [130].     Restatement (Second) of Torts § 6 & cmt. a (A.L.I. 1965); Restatement (First) of Torts § 6 & cmt. a (A.L.I. 1934).

       [131].     Notably, today, most courts agree that “[a]n election practice violates . . . the Fourteenth and Fifteenth Amendments if it is undertaken and maintained for a discriminatory purpose,” which is described as an “intent-based approach.” Fusilier v. Landry, 963 F.3d 447, 463 (5th Cir. 2020).

       [132].     See also Note, The Doctrine of Official Immunity Under the Civil Rights Acts, 68 Harv. L. Rev. 1229, 1240 (1955) (“[T]he defendant is likely to have some knowledge of the discriminatory purpose he is aiding, although state of mind does not appear to have been made a factor in granting recovery.”).

       [133].     Brickhouse v. Brooks, 165 F. 534, 543 (C.C.E.D. Va. 1908).

       [134].     Anderson v. Myers, 182 F. 223, 229 (C.C.D. Md. 1910).

       [135].     Id. at 229.

       [136].     Id. at 230.

       [137].     Brief for Plaintiffs in Error at 24, Myers v. Anderson, 238 U.S. 368 (Nos. 58, 59, 60).

       [138].     Id.

       [139].     See Myers v. Anderson, 238 U.S. 368, 378–79 (1915); see also Baude, supra note 12, at 57–58 (discussing Myers); Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 457 (1987) (noting that Myers did not seriously consider a defense based on the absence of malice). John Goldberg has argued that Myers and Brickhouse do not “impl[y] that liability would attach for an entirely faultless interference with the right to vote”: Because “the ‘deprivation’ . . . appears to have been intentional even if not malicious (in the sense of inspired by racial animus),” “the court’s willingness to hold these officials liable by no means establishes that it would also have imposed strict liability.” John C.P. Goldberg, The Rights and Wrongs of Constitutional Torts, 2025 Jotwell 1 (2025) (reviewing this Article). But even assuming that those decisions required, at a minimum, an intentional action on the part of the state officials, that requirement is no different from the intent required to commit trespass, which is still compatible with liability without fault. See sources cited infra notes 395–398 and accompanying text (discussing the relevance of intent for liability without fault).

       [140].     212 U.S. 78, 78–79 (1909).

       [141].     Id. at 82–84.

       [142].     Id. at 85.

       [143].     Id.

       [144].     Haig v. Agee, 453 U.S. 280, 319 (1981) (Brennan, J., dissenting).

       [145].     Hamdi v. Rumsfeld, 542 U.S. 507, 572 n.4 (2004) (Scalia, J., dissenting). Oddly, few have tied Moyer to qualified immunity. See A. Allise Burris, Qualifying Immunity in Section 1983 & Bivens Actions, 71 Tex. L. Rev. 123, 135 (1992).

       [146].     See, e.g., Hague v. Comm. for Indus. Org., 101 F.2d 774, 789 (3d Cir.), aff’d as modified, 307 U.S. 496 (1939) (including claims of ministerial deprivations of freedoms of speech and assembly pursuant to a city ordinance as well as claims of discretionary false arrest, malicious prosecution, and unlawful deportation).

       [147].     Sterling v. Constantin, 287 U.S. 378, 400 (1932).

       [148].     See, e.g., Picking v. Pa. R.R. Co., 151 F.2d 240, 249 (3d Cir. 1945), cert. denied, 332 U.S. 776 (1947) (finding that Section 1983 is “sufficiently clear to meet the tests required by the Due Process Clause of the Fifth Amendment”); Gressman, supra note 114, at 1355 (noting that Section 1983 “is not burdened with a statutory or constitutional requirement of willfulness”).

       [149].     See sources cited supra note 122 (citing incorporation cases).

       [150].     Picking, 151 F.2d at 249; see also Bottone v. Lindsley, 170 F.2d 705, 706 (10th Cir. 1948) (“It is said that by these statutes, Congress gave a right of action, sounding in tort, to every individual whose federal rights were trespassed upon by any officer acting under pretense of state law.”).

       [151].     Hague v. Comm. for Indus. Org., 307 U.S. 496, 507 (1939).

       [152].     Picking, 151 F.2d at 249.

       [153].     See Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19 Hofstra L. Rev. 447, 450–52 (1990); Morris S. Arnold, Accident, Mistake, and Rules of Liability in the Fourteenth-Century Law of Torts, 128 U. Pa. L. Rev. 361, 364 (1979); George F. Deiser, The Development of Principle in Trespass, 27 Yale L.J. 220, 221 (1917). Cf. Entick v. Carrington (1765) 95 Eng. Rep. 807 (KB) (“No man can set his foot upon my ground without my licence, but he is liable to an action.”).

       [154].     Burt v. City of New York, 156 F.2d 791, 793 (2d Cir. 1946).

       [155].     Some scholars traced the focus on “individual responsibility” only so far as the Supreme Court’s decision in Monroe v. Pape, 365 U.S. 167 (1961). See Abernathy, supra note 4, at 1447. But, as this Section shows, that transformation was well underway by the time Monroe was decided.

       [156].     321 U.S. 1, 2 (1944).

       [157].     Id. at 13.

       [158].     Transcript of Record at 11, 13, 16, Snowden, 321 U.S. 1 (No. 7986).

       [159].     Snowden, 321 U.S. at 7–8.

       [160].     Id. at 17 (Douglas, J., dissenting).

       [161].     Civil Rights Act of 1871, ch. 22, § 2, 17 Stat. 13.

       [162].     See supra Part II.A (surveying early decisions on Section 1983).

       [163].     See sources cited supra notes 88–89 (discussing plain meaning of “deprivation”); discussion infra Part IV.A.2 (criticizing shift from “deprivation” to “violation”). Cf. Note, The Proper Scope of the Civil Rights Acts, 66 Harv. L. Rev. 1285, 1295 n.51 (1953) (“[I]f an individual is treated unfairly by the state, the inequality is not diminished by the fact that the official has not acted willfully.”).

       [164].     325 U.S. 91 (1945).

       [165].     See Civil Rights Act of 1866, ch. 31, § 2, 14 Stat. 27 (codified at 18 U.S.C. § 242).

       [166].     Screws, 325 U.S. at 93–94; see also generally Paul J. Watford, Hallows Lecture: Screws v. United States and the Birth of Federal Civil Rights Enforcement, 98 Marq. L. Rev. 465 (2014).

       [167].     See, e.g., Eisenberg, supra note 40, at 507 n.105.

       [168].     Screws, 325 U.S. at 94.

       [169].     See Act of Mar. 4, 1909, ch. 321, § 20, 35 Stat. 1088, 1092.

       [170].     Screws, 325 U.S. at 103.

       [171].     Id. at 96.

       [172].     See Burt v. City of New York, 156 F.2d 791, 792 (2d Cir. 1946); see also McShane v. Moldovan, 172 F.2d 1016, 1020 (6th Cir. 1949) (explaining that Section 1983 and its criminal counterpart are to be construed “in pari materia”).

       [173].     Burt, 156 F.2d at 792.

       [174].     341 U.S. 367 (1951).

       [175].     Id. at 370.

       [176].     Amicus Brief in Support of Petitioners at 16, Tenney, 341 U.S. 367 (No. 338).

       [177].     Id. at 12, 16.

       [178].     Tenney, 341 U.S. at 376.

       [179].     Id. at 372.

       [180].     Id. at 376 (“Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom . . . ? . . . We cannot believe that[.]”).

       [181].     Cobb v. City of Malden, 202 F.2d 701, 706 (1st Cir. 1953) (Magruder, C.J., concurring).

       [182].     Reinert, supra note 14, at 208–09.

       [183].     Francis v. Lyman, 216 F.2d 583, 587 (1st Cir. 1954).

       [184].     Francis v. Crafts, 203 F.2d 809, 811 (1st Cir. 1953) (citation omitted).

       [185].     Lyman, 216 F.2d at 587. Chief Judge Magruder wrote of the First Circuit’s atextual approach: “We leave it to others to determine whether such judicial process may fairly be characterized as ‘interpretation’ of the intent of Congress, as disclosed in the statutory language, or whether it is something else.” Id.

       [186].     Cohen v. Norris, 300 F.2d 24, 34 (9th Cir. 1962).

       [187].     See, e.g., Lyman, 216 F.2d at 588 (“[I]t is no defense to the state officials that they may have acted” with “good-faith,” because “[t]hey are said to act at their peril.”); Hornsby v. Allen, 326 F.2d 605, 611 (“It is . . . now recognized that no specific intent to deprive a plaintiff of his civil rights need be alleged, and that an intentional and purposeful discrimination is necessary only under the act’s criminal sections or under the conspiracy provisions.”).

       [188].     Byrd v. Sexton, 277 F.2d 418, 431 (8th Cir. 1960).

       [189].     365 U.S. 167 (1961).

       [190].     Id. at 187; see also id. at 206–07 (Frankfurter, J., dissenting). The Court was likely responding to the officers’ argument that Screws “squarely holds” that the Civil Rights Acts would be “subject to serious constitutional attack on the ground of vagueness, unless ‘willfulness’ in the commission of the wrong is included as an ingredient of responsibility.” Respondents’ Brief at 20, Monroe v. Pape, 365 U.S. 167 (1961) (No. 39).

       [191].     Monroe, 365 U.S. at 180 (emphasis added).

       [192].     Id. at 208 (Frankfurter, J., dissenting).

       [193].     Id. at 207–08 (Frankfurter, J., dissenting).

       [194].     Id. at 187.

       [195].     Scholars oddly disagree on whether that passage is speaking of fault or no-fault liability. Compare Nahmod, supra note 3, at 1739 (fault), with Thomas J. Klitgaard, The Civil Rights Acts and Mr. Monroe, 49 Calif. L. Rev. 145, 161 (1961) (no fault) and Note, Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1205 (1977) (no fault). It seems hard to read anything into Monroe other than a reference to strict liability. Cf. Fletcher v. Rylands [1868] 3 HL 330, 339–40 (“[T]he person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”). See also Whirl v. Kern, 407 F.2d 781, 788 (5th Cir. 1969) (“[T]he expansive phrase ‘or otherwise’ [in Monroe] appears to us directly . . . [to] suggest[] that a federal forum is no less desirable for the inadvertent than for the malicious violation.”).

       [196].     See, e.g., Hoffman v. Halden, 268 F.2d 280, 290 (9th Cir. 1959) (“[I]t must be alleged and proved that the purpose of the acts complained of was to discriminate between persons or classes of persons.”); Deloach v. Rogers, 268 F.2d 928, 930 (5th Cir. 1959) (affirming dismissal based on “complete absence” of allegations of “discrimination by reason of class or race”); Agnew v. City of Compton, 239 F.2d 226, 231 (9th Cir. 1956) (requiring “allegations that the purpose of the arrest was to discriminate between persons or classes of persons”); Bottone v. Lindsley, 170 F.2d 705, 707 (10th Cir. 1948) (requiring action “with a purpose to deprive a person of his property without due process of law”).

       [197].     Cobb v. City of Malden, 202 F.2d 701, 707 (1st Cir. 1953) (Magruder, C.J., concurring).

       [198].     Cf. Nahmod, supra note 3, at 1730–31 n.77 (tracing the shift to the use of “tort rhetoric” instead); see infra Part III (elaborating on this theme).

       [199].     See Shapo, supra note 2, at 323–24.

       [200].     Id. at 293, 324.

       [201].     The Fifth Circuit was the first to cite Shapo’s work and refer to “what has been termed ‘constitutional torts.’” Whirl v. Kern, 407 F.2d 781, 789 n.9 (5th Cir. 1968). Since then, both Section 1983 claims and claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), are commonly referred to as constitutional torts. See, e.g., Brown v. United States, 742 F.2d 1498, 1500 n.2 (D.C. Cir. 1984).

       [202].     Agnew v. City of Compton, 239 F.2d 226, 231 (9th Cir. 1956).

       [203].     Bottone v. Lindsley, 170 F.2d 705, 707 (10th Cir. 1948).

       [204].     Francis v. Lyman, 216 F.2d 583, 588 (1st Cir. 1954).

       [205].     Cf. Aziz Z. Huq, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L.J. 1, 4 (2015) (arguing that the Supreme Court “has developed a gatekeeping rule of fault for individualized constitutional remedies” as a means for “rationing” judicial resources).

       [206].     Monroe v. Pape, 365 U.S. 167, 180 (1961).

       [207].     See supra notes 196–197 (citing cases).

       [208].     See, e.g., Scott v. Harris, 550 U.S. 372, 384 (2007) (noting that “relative culpability” was relevant to deprivation of Fourth Amendment rights); Whitley v. Albers, 475 U.S. 312, 320–21 (1986) (holding that “intent to punish” and “malicious[] and sadistic[]” intent to “caus[e] harm” was necessary to state a Section 1983 claim for deprivation of Eighth Amendment rights during prison riots); Daniels v. Williams, 474 U.S. 327, 328 (1986) (stating that negligence was insufficient to state a Section 1983 claim for deprivation of liberty under the Due Process Clause); Wallace v. Jaffree, 472 U.S. 38, 55–56 (1985) (determining that “purpose to advance religion” was necessary to state a Section 1983 claim for deprivation of First Amendment rights to freedom of establishment); Block v. Rutherford, 468 U.S. 576, 584 (1984) (holding that “intent to punish” was necessary to state a Section 1983 claim for deprivation of Due Process Clause rights in light of conditions of confinement during pretrial detention); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (stating that “racially discriminatory intent or purpose” was necessary to state a Section 1983 claim for deprivation of Fourteenth Amendment rights); Weatherford v. Bursey, 429 U.S. 545, 546 (1977) (holding intent was necessary to state a Section 1983 claim for deprivation of Sixth Amendment rights in confidential lawyer-client communications); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (determining that “deliberate indifference” was necessary to state a Section 1983 claim for deprivation of Eighth Amendment rights in the form of failure to provide medical care).

       [209].     This is not to say that all constitutional right deprivations today require some showing that the defendant acted maliciously, culpably, or carelessly. Some pockets of strict liability appear to remain. See, e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (“Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” (quotation omitted)).

       [210].     474 U.S. at 331; see also U.S. Const. amend. XIV, § 1; sources cited supra notes 85–91 and accompanying text.

       [211].     474 U.S. at 334.

       [212].     442 U.S. 256, 276–77 (1979). But see Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 897 (1999) (arguing that the discriminatory intent requirement “was not determined by the text, structure, or history of the Equal Protection Clause, or by any singularly compelling theory of equality”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1131–34 (1997) (tracing the evaluation of the Fourteenth Amendment jurisprudence through the rejection of disparate-impact liability); Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 Stan. L. Rev. 1105, 1108 (1989) (discussing initial agreement that “discriminatory motivation was almost entirely irrelevant to equal protection”).

       [213].     City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (“The Court’s more recent decisions confirm the principle that racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation.”).

       [214].     See sources cited supra notes 123–142 and accompanying text (discussing cases).

       [215].     429 U.S. 97, 104–05 (1976).

       [216].     Farmer v. Brennan, 511 U.S. 825, 837 (1994). But see Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103 Corn. L. Rev. 357, 362 (2018) (arguing that the Court’s focus on subjective intent was “a wrong turn”); John F. Stinneford, The Original Meaning of “Cruel,” 105 Geo. L.J. 441, 458 (2017) (demonstrating that punishment is “[c]ruel and [u]nusual” within the meaning of the Eighth Amendment if its effects are unjustly harsh in light of longstanding prior practice, not based on any “cruel intent” such as deliberate indifference).

       [217].     475 U.S. 312, 320–21 (1986).

       [218].     Weatherford v. Bursey, 429 U.S. 545, 557–58 (1977); see also U.S. Const. amend. VI.

       [219].     508 U.S. 520, 541–42, 547 (1993); see also U.S. Const. amend. I.

       [220].     Section 1983 claims for Brady violations are foreclosed against prosecutors. See Imbler v. Pachtman, 424 U.S. 409, 423–24 (1976).

       [221].     See, e.g., Porter v. White, 483 F.3d 1294, 1308 (11th Cir. 2007) (holding that “a negligent act or omission cannot provide a basis for liability in a [Section] 1983 action seeking compensation for loss of liberty occasioned by a Brady violation”); Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) (“Brady ensures that the defendant will obtain relief from a conviction tainted by the State’s nondisclosure of materially favorable evidence, regardless of fault, but the recovery of [Section] 1983 damages requires proof that a law enforcement officer other than the prosecutor intended to deprive the defendant of a fair trial” through “a conscious effort to suppress exculpatory evidence.”).

       [222].     Orin S. Kerr, The Questionable Objectivity of Fourth Amendment Law, 99 Tex. L. Rev. 447, 448–49 (2021) (noting how the Supreme Court has recently introduced subjective tests into the Fourth Amendment inquiry).

       [223].     U.S. Const. amend. IV (emphasis added).

       [224].     Graham v. Connor, 490 U.S. 386, 399 (1989). Cf. Danielle D’Onfro & Daniel Epps, The Fourth Amendment and General Law, 132 Yale L.J. 910, 919 (2023) (arguing “that ‘unreasonable’ in the Fourth Amendment is best understood as meaning inconsistent with the general law”).

       [225].     O’Connor v. Ortega, 480 U.S. 709, 711–12 (1987). But see Orin Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations, 82 U. Chi. L. Rev. 113, 114 (2015).

       [226].     Scott v. Harris, 550 U.S. 372, 384 (2007).

       [227].     Utah v. Strieff, 579 U.S. 232, 241 (2016).

       [228].     But see Nahmod, supra note 3, at 1730–31 (arguing otherwise).

       [229].     Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).

       [230].     Daniels v. Williams, 474 U.S. 327, 330 (1986) (emphases added); see also John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47, 55 (1998).

       [231].     Bd. of Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997).

       [232].     See id.

       [233].     DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 193, 201 (1989).

       [234].     See Abernathy, supra note 4, at 1459.

       [235].     See Harold S. Lewis Jr. & Theodore Y. Blumoff, Reshaping Section 1983’s Asymmetry, 140 U. Pa. L. Rev. 755, 760 (1992).

       [236].     Rachel E. Barkow, Of Two Minds: The Supreme Court’s Divergent Approach to Constitutional Mens Rea, 86 Ohio St. L.J. (forthcoming 2025).

       [237].     Id. at 26–27.

       [238].     Imbler v. Pachtman, 424 U.S. 409, 417 (1976). The statutory justification appears to be that Section 1988(a) “authorizes courts to look to the common law of the States where this is necessary to furnish suitable remedies under [Section] 1983.” Carey v. Piphus, 435 U.S. 247, 258 n.13 (1978) (citation omitted). But Section 1988 does not apply to Section 1983. See Theodore Eisenberg, State Law in Federal Civil Rights Cases: The Proper Scope of Section 1988, 128 U. Pa. L. Rev. 499, 539–41 (1980).

       [239].     Heck v. Humphrey, 512 U.S. 477, 483–84 (1994). That is to be done “so long as doing so is consistent with the values and purposes of the constitutional right at issue”—whatever that means. Thompson v. Clark, 596 U.S. 36, 43 (2022).

       [240].     Thompson, 596 U.S. at 43 (noting, without deciding, that “American courts described the elements of the malicious prosecution tort” to include that “the motive in instituting the suit was malicious, which was often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice” (citation omitted)).

       [241].     See discussion infra Part I.B.

       [242].     Even in 1955 qualified immunity was “[o]ne of the most perplexing problems” with respect to the interpretation of Section 1983. Note, supra note 132, at 1229. Seventy years ago, too, it appeared obvious that “[a] substitute for [qualified immunity] might be found in a practice whereby the [S]tate compensates employees who are found personally liable, or requires all employees dealing with the public to secure personal liability insurance, with the expense borne by the [S]tate.” Id. at 1232. As early as the 1950s, state governments were already purchasing liability insurance. See James, supra note 91, at 616. Similar suggestions have been made by the Supreme Court in recent years. See, e.g., Richardson v. McKnight, 521 U.S. 399, 411 (1997); see also Note, Government Tort Liability, 111 Harv. L. Rev. 2009, 2024 (1998) (“[A]s an empirical matter, it is not clear that governmental liability does in fact lead to increased damages” because of “municipal liability pools, self-insurance, and joint purchasing programs.”).

       [243].     See sources cited supra notes 140–143 and accompanying text (discussing Moyer v. Peabody, 212 U.S. 78 (1909)).

       [244].     Cobb v. City of Malden, 202 F.2d 701, 706–07 (1st Cir. 1953); see also Nelson v. Knox, 256 F.2d 312, 315 (6th Cir. 1958) (declining liability because of “good faith”); Gager v. Bob Seidel, 300 F.2d 727, 731 (D.C. Cir. 1962) (requiring “bad motive”). But see Cohen v. Norris, 300 F.2d 24, 34 (9th Cir. 1962) (rejecting qualified immunity).

       [245].     Pierson v. Ray, 386 U.S. 547, 557 (1967). But see Baxter v. Bracey, 140 S. Ct. 1862, 1864 (2020) (Thomas, J., dissenting from the denial of certiorari) (explaining that, at common law, “the defense for good-faith official conduct appears to have been limited to authorized actions within the officer’s jurisdiction”).

       [246].     Wyatt v. Cole, 504 U.S. 158, 167 (1992) (invoking “government’s ability to perform its traditional functions”); Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (mentioning “the diversion of official energy from pressing public issues” and “the deterrence of able citizens from acceptance of public office”).

       [247].     In re Allen, 119 F.3d 1129, 1138–39 (4th Cir. 1997) (Luttig, J., dissenting).

       [248].     Pearson v. Callahan, 555 U.S. 223, 242–43 (2009) (quoting Harlow, 457 U.S. at 818).

       [249].     See Stump v. Sparkman, 435 U.S. 349, 355 (1978); Pierson v. Ray, 386 U.S. 547, 553 (1967).

       [250].     See Imbler v. Pachtman, 424 U.S. 409, 410 (1976).

       [251].     See Polk Cnty. v. Dodson, 454 U.S. 312, 317 (1981).

       [252].     See Sup. Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 733–34 (1980); Lake Country Ests. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 404–05 (1979).

       [253].     Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). The Supreme Court in Monell also held that municipalities may not be held vicariously liable for the torts committed by municipal employees in the course of their employment. Id. at 690. The Court’s historical argument for rejecting municipal respondeat superior has been soundly criticized. See David Jacks Achtenberg, Taking History Seriously: Municipal Liability Under 42 U.S.C. § 1983 and the Debate Over Respondeat Superior, 73 Fordham L. Rev. 2183, 2196 (2005).

       [254].     Owen v. City of Indep., 445 U.S. 622, 624–25 (1980).

       [255].     Id. at 635.

       [256].     Id. at 654, 657.

       [257].     Id. at 667, 670 (Powell, J., dissenting).

       [258].     See, e.g., Bd. of Comm’rs v. Brown, 520 U.S. 397, 405 (1997) (interpreting Owen as implicitly requiring “fault”); City of Canton v. Harris, 489 U.S. 378, 388 (1989) (imposing municipal liability for failure to train only where it reflects “deliberate indifference” to constitutional rights).

       [259].     See discussion infra Part IV.A.2 (critiquing the injection of state-of-mind requirements through the shift from right deprivations to duty violations); see also Barkow, supra note 236, at 2 (arguing that “mens rea requirements are [Supreme] Court creations,” because “none are explicitly stated” in the text of the Constitution, and “the Court’s evidence in support” of the claim that “they are part of a historical tradition” is “often spotty”).

       [260].     Tilley, supra note 22, at 244; Kysar, supra note 22, at 50, 56.

       [261].     Monroe v. Pape, 365 U.S. 167, 180 (1961).

       [262].     Cf. Cooley, supra note 64, at 20 (“It is a legal paradox to say that one has a legal right to something, and yet that to deprive him of it is not a legal wrong.”); 3 William Blackstone, Commentaries *23 (noting the “general and indisputable rule” that “where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded”); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803); Ashby v. White (1703) 92 Eng. Rep. 126 (KB) (Holt, C.J., dissenting).

       [263].     For example, at the end of the nineteenth century, some courts began (without much success) to creatively bend common-law causes of action to reach injuries caused by discrimination. See, e.g., Head v. Ga. Pac. Ry. Co., 7 S.E. 217, 218 (Ga. 1887); Craker v. Chi. & Nw. Ry. Co., 36 Wis. 657, 678 (1875); Chi. & Nw. Ry. Co. v. Williams, 55 Ill. 185, 190 (1870). Historically, moreover, common-law tort claims were brought to remedy some deprivations of constitutional rights. See, e.g., Sina Kian, The Path of the Constitution: The Original System of Remedies, How It Changed, and How the Court Responded, 87 N.Y.U. L. Rev. 132, 145–49 (2012) (discussing remedies applied in the antebellum era); Ann Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies, 107 Yale L.J. 77, 154–62 (1997); Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 1–2 (1963).

       [264].     Compare Oliver Wendell Holmes, Jr., The Common Law 94 (1881), with Harold J. Laski, Basis of Vicarious Liability, 26 Yale L.J. 105, 130 (1916).

       [265].     See John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 Harv. L. Rev. 315, 315 (1894) (tracing tort law “back in a continuous development in our Germanic law, without a break, for at least two thousand years”).

       [266].     Cf. Guido Calabresi, Civil Recourse Theory’s Reductionism, 88 Ind. L.J. 449, 461 (2013) (arguing that criminal law and administrative law “determine collectively in what circumstances something is yours or something is mine”); Giorgio Del Vecchio, Equality and Inequality in Relation to Justice, 11 Nat. L.F. 36, 43–44 (1966).

       [267].     See Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349, 362 (1997); Robert L. Hale, Unconstitutional Acts as Federal Crimes, 60 Harv. L. Rev. 65, 65 (1946).

       [268].     See, e.g., Kenneth W. Simons, The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives, 17 Widener L.J. 719, 723 (2008) (explaining that “criminal law targets conduct that is impermissible” and “imposes sanctions”); Morris R. Cohen, Moral Aspects of the Criminal Law, 49 Yale L.J. 987, 1017 (1940) (“It is one of the functions of the criminal law to give expression to the collective feeling of revulsion toward certain acts.”).

       [269].     See Calabresi, supra note 266, at 461.

       [270].     See Act of March 3, 1865, ch. 90, 13 Stat. 507; see also John Fabian Witt, Lincoln’s Code 285–324 (2012) (discussing the history of the Department of War and the Freedmen’s Bureau); James Randall & David Donald, The Civil War And Reconstruction 576–77 (2d ed. 1969).

       [271].     Civil Rights Act of 1866, ch. 31, § 2, 14 Stat. 27 (codified at 18 U.S.C. § 242).

       [272].     See supra Part I.A (discussing the nonenforcement of rights deprivations against Black citizens in the 1860s).

       [273].     See Guido Calabresi, Torts—The Law of the Mixed Society, 56 Tex. L. Rev. 519, 521 (1978); Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523, 1532 (1984).

       [274].     Civil Rights Act of 1871, ch. 22, 17 Stat. 13.

       [275].     42 U.S.C. § 1983.

       [276].     Admittedly, “it is easy to imagine a legal system . . . refusing, in its domestic law, to impose criminal or even tort liability on a neighborhood known to contain an unidentified thief.” Saul Levmore, Rethinking Group Responsibility and Strategic Threats in Biblical Texts and Modern Law, 71 Chi.-Kent L. Rev. 85, 86 (1995). But there may be good reasons to take that approach in certain circumstances. See generally Daryl J. Levinson, Collective Sanctions, 56 Stan. L. Rev. 345 (2003).

       [277].     Cf. Susanah M. Mead, 42 U.S.C. § 1983 Municipal Liability: The Monell Sketch Becomes a Distorted Picture, 65 N.C. L. Rev. 517, 527 (1987).

       [278].     See H.R. 189, 42d Cong. § 11 (1871); H.R. 3011, 41st Cong. § 11 (1871); see also Cong. Globe, 42d Cong., 1st Sess. 173–74 (1871).

       [279].     H.R. 189 § 11.

       [280].     Id.

       [281].     Cong. Globe, 42d Cong., 1st Sess. 663 (1871).

       [282].     Id.

       [283].     Id. at 804 (Section 1986 was reported “in lieu of” the Senate amendment).

       [284].     42 U.S.C. § 1986 (citing 42 U.S.C. § 1985).

       [285].     Id.

       [286].     Cong. Globe, 42d Cong., 1st Sess. 807 (1871).

       [287].     See Linda E. Fisher, Anatomy of an Affirmative Duty to Protect: 42 U.S.C. Section 1986, 56 Wash. & Lee L. Rev. 461, 471–78 (1999).

       [288].     Cong. Globe, 42d Cong., 1st Sess. 804 (1871).

       [289].     Id. at 820.

       [290].     Statute of Winchester 1285, 13 Edw. I, c. 2; see also Hue and Cry Act 1585, 27 Eliz. c. 13 (allowing indemnification of those forced to compensate victims through taxes assessed “ratably and proportionably”); Henry Summerson, The Enforcement of the Statute of Winchester, 1285–1327, 13 J. Legal Hist. 232, 233 (1992).

       [291].     Statute of Winchester 1285, 13 Edw. I, c. 2.

       [292].     Cong. Globe, 42d Cong., 1st Sess. 749 (1871); see also 42 U.S.C. § 1986.

       [293].     See Hague v. Comm. for Indus. Org., 307 U.S. 496, 507 (1939); Bottone v. Lindsley, 170 F.2d 705, 706 (10th Cir. 1948); Picking v. Pa. R.R. Co., 151 F.2d 240, 249 (3d Cir. 1945).

       [294].     An exegesis of the action on the case, and how it differed from trespass, is beyond the scope of this Article. For the debate surrounding the ancient origins of the action on the case, see generally Elizabeth Jean Dix, The Origins of the Action of Trespass on the Case, 46 Yale L.J. 1142 (1937); P.A. Landon, The Action on the Case and the Statute of Westminster II, 52 Law Q. Rev. 68 (1936); Theodore F.T. Plucknett, Case and the Statute of Westminster II, 31 Colum. L. Rev. 778 (1931).

       [295].     Cf. John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widow, and the Remaking of American Law 5 (2004) (discussing similar considerations with respect to the regulatory tools available to address the rise in industrial accidents in the nineteenth and twentieth centuries).

       [296].     Cong. Globe, 42d Cong., 1st Sess. 384 (1871).

       [297].     See, e.g., Nathaniel Donahue & John Fabian Witt, Tort as Private Administration, 105 Corn. L. Rev. 1093, 1095 (2020) (“[A] core function of many substantive tort doctrines is to structure and enable the private administration of the rights and duties that the law of torts sets out.”); Cristina Carmody Tilley, Tort Law Inside Out, 126 Yale L.J. 1320, 1325 (2017) (observing that tort law “toggle[s]” between “morality and efficiency”); Scott Hershovitz, Harry Potter and the Trouble with Tort Theory, 63 Stan. L. Rev. 67, 68–69 (2010) (expressive view of tort law); Christopher J. Robinette, Torts Rationales, Pluralism, and Isaiah Berlin, 14 Geo. Mason L. Rev. 329, 330 (2007) (arguing for a pluralistic view of tort law).

       [298].     Gregory C. Keating, Strict Liability Wrongs, in Philosophical Foundations of the Law of Torts 292, 292 (John Oberdiek ed., 2014); Donahue & Witt, supra note 297, at 1094.

       [299].     See, e.g., Arthur Ripstein, Private Wrongs at ix (2016); Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449, 449 (1992) (explaining that theories of tort law “based on individual moral rights . . . are often identified by the label of ‘corrective justice’”).

       [300].     For a restatement of “civil recourse” theory, see generally John C.P. Goldberg & Benjamin C. Zipursky, Recognizing Wrongs (2020).

       [301].     See, e.g., Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. L. Rev. 69, 84 (1975).

       [302].     See William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 28 (1987); Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29, 48 (1972).

       [303].     Wyatt v. Cole, 504 U.S. 158, 161 (1992).

       [304].     Patsy v. Bd. of Regents, 457 U.S. 496, 503 (1982).

       [305].     Robertson v. Wegmann, 436 U.S. 584, 592 (1978).

       [306].     Owen v. City of Indep., 445 U.S. 622, 655 (1980).

       [307].     Fallon, supra note 109, at 962; see also West, supra note 5, at 944 (suggesting that tort principles may have been “thoughtlessly” incorporated into Section 1983, because they “have no bearing on the problems of constitutional law”).

       [308].     Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801, 1803 (1997).

       [309].     Ernest J. Weinrib, The Idea of Private Law 125 (1995); Ripstein, supra note 299, at 233–264; Jules Coleman, Corrective Justice and Wrongful Gain, 11 J. Legal Stud. 421, 423 (1982).

       [310].     Ernest Weinrib, The Special Morality of Tort Law, 34 McGill L.J. 403, 411 (1989); see also Jules L. Coleman, The Structure of Tort Law, 97 Yale L.J. 1233, 1241 (1988).

       [311].     Weinrib, supra note 309, at 125.

       [312].     Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 413 (2000).

       [313].     Consider nominal damages. See Uzuegbunam v. Preczewski, 592 U.S. 279, 290–93 (2021) (Section 1983). See generally Michael L. Wells, Uzuegbunam v. Preczewski, Nominal Damages, and the Roberts Stratagem, 56 Ga. L. Rev. 1127 (2022).

       [314].     Carey v. Piphus, 435 U.S. 247, 266 (1978).

       [315].     In an early article, Goldberg and Zipursky describe negligence as identifying conduct-guiding obligations for civil society, thereby achieving what they call “internal deterrence.” John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 Md. L. Rev. 364, 386 (2005). They seem to abandon the deterrence terminology in subsequent writings, though the fundamental principle appears to remain part of their theory. See Goldberg & Zipursky, supra note 300, at 355.

       [316].     Goldberg & Zipursky, supra note 300, at 70.

       [317].     Id. at 263, 341.

       [318].     Cf. Michael L. Wells, Civil Recourse, Damages-as-Redress, and Constitutional Torts, 46 Ga. L. Rev. 1003 (2012) (applying civil recourse theory to constitutional torts including Section 1983 claims).

       [319].     See generally Catherine M. Sharkey, Modern Tort Law: Preventing Harms, Not Recognizing Wrongs, 134 Harv. L. Rev. 1423 (2021) (offering a critique of Goldberg and Zipursky’s “wrongs and redress” theory of tort law).

       [320].     See discussion infra Part IV.A.2.

       [321].     Goldberg & Zipursky, supra note 300, at 355.

       [322].     Id. at 234.

       [323].     Richard A. Posner, Instrumental and Noninstrumental Theories of Tort Law, 88 Ind. L.J. 469, 473 (2013).

       [324].     Patsy v. Bd. of Regents, 457 U.S. 496, 503 (1982).

       [325].     Robertson v. Wegmann, 436 U.S. 584, 592 (1978).

       [326].     Fallon, supra note 109, at 938; see Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1779–86 (1991).

       [327].     See Weinrib, supra note 309, at 125; Goldberg & Zipursky, supra note 300, at 70, 234.

       [328].     Jeffries, supra note 19, at 89.

       [329].     See discussion infra Part IV.A; see also Wells, supra note 15, at 1318 (“[N]egligence is the appropriate sorting mechanism for imposing constitutional tort liability.”); Michael L. Wells, Absolute Official Immunity in Constitutional Litigation, 57 Ga. L. Rev. 919, 926 (2023) (arguing for absolute immunity when “the social costs of constitutional tort override the benefits,” irrespective of the official’s function).

       [330].     See Schwartz, supra note 11, at 1803.

       [331].     Landes & Posner, supra note 302, at 1, 119.

       [332].     Benjamin Zipursky, Richard Epstein and the Cold War in Torts, 3 J. Tort L. 1, 1 (2010).

       [333].     Calabresi, supra note at 301, at 84.

       [334].     John C.P. Goldberg, Twentieth-Century Tort Theory, 91 Geo. L.J. 513, 545 (2003).

       [335].     Cf. Posner, supra note 302, at 32 (“If the cost of safety measures or of curtailment . . . exceeds the benefit in accident avoidance to be gained by incurring that cost, society would be better off . . . to forgo accident prevention.”).

       [336].     Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum. L. Rev. 247, 284 (1988).

       [337].     See Cass R. Sunstein, The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers), 114 Colum. L. Rev. 167, 170 (2014).

       [338].     Zipursky, supra note 332, at 1.

       [339].     Calabresi & Hirschoff, supra note 69, at 1060.

       [340].     The Federal Tort Claims Act permits claims to be brought only against the United States. See 28 U.S.C. §§ 2671–2680. But see Wells, supra note 15, at 1315 (“[I]t is not fair to city stakeholders to make them pay for all violations, no matter how newfangled, unforeseeable, or otherwise excusable the violation turns out to be.”). Incidentally, this underscores yet another way in which the Section 1983 jurisprudence has erroneously strayed from fundamental tort principles—by foreclosing the possibility of vicarious liability. See Achtenberg, supra note 253, at 2229.

       [341].     Wells, supra note 15, at 1301.

       [342].     Nahmod, supra note 109, at 32–33; see also Fallon, supra note 109, at 966.

       [343].     In more recent articles, Calabresi has gestured at tort law’s dualism, albeit on terms different from those discussed here. See Guido Calabresi & Spencer Smith, On Tort Law’s Dualisms, 135 Harv. L. Rev. F. 184, 188 (2022); Guido Calabresi, A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension, 77 Law & Contemp. Probs. 1, 12 (2014); Guido Calabresi, Toward a Unified Theory of Torts, 1 J. Tort L. 1932, 1932 (2007). Others have done the same. See Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801, 1826 (1997).

       [344].     Monroe v. Pape, 365 U.S. 167, 180 (1961).

       [345].     Cf. Lon L. Fuller, The Morality of Law 38–39 (Revised ed., 1969) (critiquing “frequent changes in the rules” and the “failure of congruence between the rules as announced and their actual administration”).

       [346].     Mead, supra note 6, at 5–6.

       [347].     See sources cited supra notes 10–14 (citing various critiques of qualified immunity).

       [348].     Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

       [349].     See Evan J. Mandery, Qualified Immunity or Absolute Impunity? The Moral Hazards of Extending Qualified Immunity to Lower-Level Public Officials, 17 Harv. J.L. & Pub. Pol’y 479, 481 (1994) (“[B]y holding officials to an extremely low standard of care for knowledge of the law, the doctrine is one of gross, rather than ordinary, negligence.”).

       [350].     Cingle v. State, 766 N.W.2d 381, 387 (Neb. 2009).

       [351].     Harlow, 457 U.S. at 818.

       [352].     Jeffries, supra note 230, at 55.

       [353].     Id. at 54–55.

       [354].     Whitman Hotel Corp. v. Elliott & Watrous Eng’g Co., 79 A.2d 591, 594 (Conn. 1951).

       [355].     Id. at 593.

       [356].     Bylsma v. R.C. Willey, 416 P.3d 595, 605 (Utah 2017) (citation omitted).

       [357].     Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

       [358].     Goldberg & Zipursky, supra note 68, at 745.

       [359].     Keating, supra note 68, at 25 (citing Vaughan v. Menlove (1837) 132 Eng. Rep. 490 (CP)).

       [360].     See Holmes, supra note 264, at 109.

       [361].     Keating, supra note 68, at 24–25.

       [362].     See Barkow, supra note 236, at 26.

       [363].     See Bd. of Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997); DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 193 (1989).

       [364].     See West, supra note 5, at 877 (describing “modern constitutional tort[s],” including Section 1983 claims, as ones in which “the plaintiff asserts that the government official has breached a duty originating in the Constitution itself” (emphasis added)).

       [365].     See John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 Yale L.J. 259, 263 (2000); Jeffries, supra note 19, at 101–03.

       [366].     Abernathy, supra note 4, at 1458.

       [367].     Nahmod, supra note 109, at 13.

       [368].     Id. at 32.

       [369].     Mead, supra note 6, at 3 (noting that the Supreme Court used to require “only a showing of a constitutional deprivation under color of state law without reference to the culpability or state of mind of the tort-feasor”).

       [370].     See id. at 14 (approving of how the Supreme Court, while “never deviat[ing] from its position that [Section 1983] has no independent state of mind element, . . . demonstrated that state of mind may play a vital role in the determination of whether a constitutional violation has occurred”); Nahmod, supra note 109, at 22–23; see also 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3:2 (2024) (“The correct approach under § 1983 is to ask, first, whether the defendant owed a Fourteenth Amendment (or other constitutional) duty to the plaintiff and, second, whether it was breached . . . . Different Fourteenth Amendment violations (and hence Bill of Rights violations) require different states of mind.”).

       [371].     Mead, supra note 6, at 4.

       [372].     See Baker v. McCollan, 443 U.S. 137, 140 (1979) (“The first inquiry in any section 1983 suit . . . is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’”).

       [373].     Goldberg & Zipursky, supra note 300, at 344.

       [374].     Goldberg, supra note 139.

       [375].     Id.

       [376].     Goldberg & Zipursky, supra note 68, at 761.

       [377].     Goldberg, supra note 139; see also Goldberg & Zipursky, supra note 68, at 761.

       [378].     Goldberg, supra note 139.

       [379].     Id.

       [380].     Goldberg & Zipursky, supra note 68, at 761.

       [381].     Keating, supra note 68, at 29.

       [382].     Goldberg & Zipursky, supra note 300, at 186–87, 192.

       [383].     Mark A. Geistfeld, Tort Law and Civil Recourse, 119 Mich. L. Rev. 1289, 1293 (2021).

       [384].     Id.

       [385].     Keating, supra note 68, at 29.

       [386].     Id. at 33, 37.

       [387].     See sources cited supra notes 66–72 and accompanying text.

       [388].     See Keating, supra note 68, at 32 (explaining that, for “trespassory” strict liability torts, where “the issue is simply whether the defendant violated the plaintiff’s right[,]” the only so-called “duty” is “a duty not to violate the right, and any intentional action that violates the right therefore commits the wrong”).

       [389].     Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays 71 (Walter Wheeler Cook ed., 2d ed. 1920).

       [390].     Wesley Newcomb Hohfeld, Some Fundamental Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 28 (1913) (quotation marks omitted).

       [391].     Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710, 717 (1917).

       [392].     Baude, supra note 12, at 52; see also West, supra note 5, at 865 n.18 (“In the framework of Wesley Newcomb Hohfeld, the shift is from a Constitution of immunity/disability rules to a Constitution of claim-right/duty rules.”).

       [393].     John Harrison, Power, Duty, and Facial Invalidity, 16 U. Pa. J. Const. L. 501, 502, 508–12, 528–31 (2013); see also Matthew H. Kramer, Rights in Legal and Political Philosophy, in The Oxford Handbook of Law and Politics 417 (Gregory A. Caldeira, R. Daniel Kelemen & Keith E. Whittington eds., 2008) (“Most (though not all) of the entitlements conferred by so-called bills of rights are in fact immunities.”); John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 Va. L. Rev. 333, 337–41 (1998); see also generally Laura K. Donohue, Correlation and Constitutional Rights, in Without Trimmings: The Legal, Moral, and Political Philosophy of Matthew Kramer 3–36 (Visa A. J. Kurki & Mark McBride eds., 2022) (arguing that Hohfeld’s framework does not fully capture constitutional rights to the extent that, among other things, some of those rights are held in res publica and some recognize ‘dignities’ rather than claims, privileges, powers, or immunities); Frederick Schauer, Hohfeld’s First Amendment, 76 Geo. Wash. L. Rev. 914, 914 (2008).

       [394].     Rejecting that approach does not mean that Section 1983 should not provide a remedy at all. John Harrison has argued that, because “[m]any constitutional rules” are not about “duty,” failure to comply with those rules generally does not produce a “wrong.” Harrison, supra note 393, at 502; see also id. at 510–11 (elaborating on that theme). Even on the assumption that every wrong necessitates the breach of a duty, but see Keating, supra note 68, at 29, it is the failure to comply with Section 1983’s duty not to deprive others of rights under federal law that gives rise to the “wrong” under Section 1983. That is why Garrett West’s recent application of Harrison’s insight to “constitutional torts” generally may well be limited to Bivens actions, wherein the cause of action appears to require a plaintiff to “assert[] that the government official has breached a duty originating in the Constitution itself,” and thus liability “turns on the assumption that the Constitution imposes duties directly on federal officials.” West, supra note 5, at 878. As this Article demonstrates, the same logic does not apply to Section 1983.

       [395].     50 N.W. 403, 404 (Wis. 1891).

       [396].     Id. at 403–04.

       [397].     267 P.2d 543, 544 (Kan. 1954).

       [398].     Id. at 545–46.

       [399].     Cf. Whitley v. Albers, 475 U.S. 312, 320–21 (1986).

       [400].     Cf. Weatherford v. Bursey, 429 U.S. 545, 557–58 (1977).

       [401].     Goldberg, supra note 139 (suggesting incorrectly that applying Section 1983 as a strict liability tort would require the imposition of liability under those circumstances).

       [402].     Cf. Bolden, 446 U.S. at 62 (requiring intent to discriminate).

       [403].     Calabresi, supra note 301, at 72.

       [404].     The Supreme Court has held that Section 1983 plaintiffs “generally recover damages that are proximately caused” by the rights deprivation, which the Court has equated to holding “law enforcement officers liable for the foreseeable consequences of all of their constitutional torts.” Cnty. of L.A. v. Mendez, 581 U.S. 420, 431 (2017).

       [405].     See Mark A. Geistfeld, Proximate Cause Untangled, 80 Md. L. Rev. 420, 444 (2021). There is nothing strange about applying proximate cause and the foreseeability test to a strict liability tort. When it comes to proximate causation for strict liability torts generally, “[l]iability in the first instance depends on the foreseeability test or risk standard, whereas the amount of damages depends on the eggshell-plaintiff rule or directness test.” Id. at 457.

       [406].     See Fowler v. Harper, Liability Without Fault and Proximate Cause, 30 Mich. L. Rev. 1001, 1004–05 (1932) (explaining how the traditional proximate cause analysis applies to strict liability torts).

       [407].     Vosburg v. Putney, 50 N.W. 403, 403–04 (Wis. 1891); see Geistfeld, supra note 405, at 452–53 (discussing the connection between the directness test and the eggshell-plaintiff rule).

       [408].     See Daryl J. Levinson, Law for Leviathan: Constitutional Law, International Law, and the State 173 (2024) (“Leviathan is conspicuously different from an ordinary person in ways that make the standards and expectations of private legality and personal morality a poor fit.”); Wells, supra note 15, at 1309 (“[T]he public/private distinction has a bearing on the selection of the proper liability rule for constitutional tort actions under [Section] 1983.”).

       [409].     See supra notes 133–139, 146 (citing cases).

       [410].     Mitchum v. Foster, 407 U.S. 225, 242 (1972).

       [411].     See, e.g., Cong. Globe, 42d Cong., 1st Sess. 385 (1871) (statement of Rep. Joseph Lewis).

       [412].     United States v. Georgia, 546 U.S. 151, 158 (2006) (“[N]o one doubts” that Section 5 of the Fourteenth Amendment authorizes Congress to “enforce” the Amendment “by creating private remedies against the States.”).

       [413].     New York Cent. R.R. Co. v. White, 243 U.S. 188, 204 (1917).

       [414].     Cohen v. Norris, 300 F.2d 24, 34 (9th Cir. 1962).

       [415].     Cf. Michael Wells, Is Disparity a Problem?, 22 Ga. L. Rev. 283, 286–87 (1988); Note, Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1274–1330 (1977).

       [416].     But see, e.g., Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077, 1080–82 (2014) (arguing that, in our federalism, partisanship plays a key role in facilitating political); Heather K. Gerken, Exit, Voice, and Disloyalty, 62 Duke L.J. 1349, 1350–51 (2013) (arguing that our federalism provides an avenue for minorities to affect national policy through dissent by deciding).

       [417].     See William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848, at 94–95 (1977); Juan F. Perea, Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution, 110 Mich. L. Rev. 1123, 1137–38 (2012).

       [418].     Randy E. Barnett, Three Federalisms, 39 Loy. U. Chi. L.J. 285, 291 (2008).

       [419].     Crocker, supra note 13, at 1450.

       [420].     Snyder v. United States, 603 U.S. 1, 22 (2024) (Jackson, J., dissenting).

       [421].     See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

       [422].     Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 890 (2014) (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the . . . actions resolved in plaintiffs’ favor . . . . And officers in the thirty-seven small and mid-sized jurisdictions . . . never contributed.”).

       [423].     See supra note 242 (discussing Section 1983, qualified immunity, and insurance). But see John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. 1539, 1595–1603 (2017) (positing that liability insurance “tends to increase harm by reducing the insured’s incentive to take care”).

       [424].     Kenneth S. Abraham & Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L.J. 2165, 2169 (2024).

       [425].     Wells, supra note 15, at 1288.

       [426].     See Wyatt v. Cole, 504 U.S. 158, 171 (1992) (Kennedy, J., concurring) (suggesting that “subsequent clarifications to summary-judgment law” lessen the need for qualified immunity); Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (considering qualified immunity in announcing the pleading standard under Rule 8).

       [427].     Vaughan v. Menlove (1837) 132 Eng. Rep. 490, 492 (CP) (emphasis added).

       [428].     Jack M. Beermann, A Critical Approach to Section 1983 with Special Attention to Sources of Law, 42 Stan. L. Rev. 51, 83 (1989); see Owen v. City of Indep., 445 U.S. 622, 655–56 (1980) (risk of “paralyzing the governing official’s decisiveness and distorting his judgment”); Michael L. Wells, Qualified Immunity After Ziglar v. Abbasi: The Case for a Categorical Approach, 68 Am. U. L. Rev. 379, 391 (2018) (“If officers were liable for every constitutional violation, they might hesitate before taking a step that produces a public benefit because an error would lead to personal liability.”).

       [429].     Schwartz, supra note 11, at 1811.

       [430].     Nahmod, supra note 109, at 20, 22.

       [431].     See supra Part II.A (surveying early embracing of strict liability).

       [432].     Eisenberg, supra note 40, at 524 (“Section 1983 cases neither place unbearable burdens on the courts nor direct massive resources to relatively minor claims.”).

       [433].     See, e.g., Alexander A. Reinert, The Narrative of Costs, the Costs of Narrative, 40 Cardozo L. Rev. 121, 126–32 (2018).

       [434].     See Cnty. of L.A. v. Mendez, 581 U.S. 420, 431 (2017) (holding that Section 1983 “creates a species of tort liability informed by tort principles regarding damages and the prerequisites for their recovery,” including that plaintiffs “generally recover damages that are proximately caused by any [constitutional] violation” and thus “law enforcement officers [are] liable for the foreseeable consequences of all of their constitutional torts”) (internal quotation marks omitted) (citation omitted); see also sources cited supra notes 404–406 and accompanying text (discussing the application of proximate causation).

       [435].     Fallon, supra note 109, at 938.

       [436].     Id.

       [437].     See Fallon & Meltzer, supra note 326, at 1779–86; John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87, 90 (1999); Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 858 (1999).

       [438].     But see generally Wells, supra note 15 (arguing against abandoning qualified immunity and the prohibition on vicarious liability for local governments).

       [439].     Holmes, supra note 264, at 94.

       [440].     Alexander A. Reinert, Joanna C. Schwartz & James E. Pfander, New Federalism and Civil Rights Enforcement, 116 Nw. U. L. Rev. 737, 784 (2021).

       [441].     Calabresi, supra note at 301, at 84.

       [442].     See Sean Farhang, The Litigation State 4 (2010).

       [443].     See, e.g., William N. Eskridge, Jr., Overruling Statutory Precedents, 76 Geo. L.J. 1361, 1362 (1988).

       [444].     See sources cited supra notes 124–140 and accompanying text (citing and discussing cases).

       [445].     403 U.S. 388 (1971).

       [446].     Egbert v. Boule, 596 U.S. 482, 486 (2022).

       [447].     See supra notes 249–252 (citing cases on absolute immunities).

       [448].     But see Reinert, supra note 14, at 202–03 (arguing that absolute immunities were expressly rejected by Section 1983’s original text).

       [449].     Eskridge, supra note 443, at 1363 (cataloguing over eighty cases in which Court “overruled or materially modified statutory precedents” between 1961 and 1988).

       [450].     Pearson v. Callahan, 555 U.S. 223, 233 (2009) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).

       [451].     See, e.g., Oklahoma v. Castro-Huerta, 597 U.S. 629, 630 (2022) (stating that courts cannot “alter the plain text” of a statute).

       [452].     But see Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (declining to enforce as written Section 1983’s “general language”).

       [453].     See, e.g., Wells, supra note 15, at 1289 (“Efforts to reform the qualified immunity doctrine, including those currently under consideration, would be on stronger ground if they were to focus on [a] particular application of qualified immunity instead of abolishing it altogether.”).

       [454].     See sources cited supra notes 85–87 and accompanying text (discussing Parratt v. Taylor, 451 U.S. 527 (1981), and Daniels v. Williams, 474 U.S. 327 (1986)).

       [455].     Cf. Crocker, supra note 13, at 1411.

       [456].     The fundamental problem with qualified immunity, as far as strict liability goes, is the requirement that the claim involve “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added).

       [457].     Baude, supra note 12, at 78.

       [458].     See Fleming James, Jr., Statutory Standards and Negligence in Accident Cases, 11 La. L. Rev. 95, 95 (1950) (lamenting how “too little attention has been paid to statutes which expressly create civil liability for breach of their commands, and to a close analysis of how they have created judicial habits of thought”).