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Qualified Immunity's Flawed Foundation

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______ OZO IAW
Benjamin N. Cardozo School of Law · Yeshiva University
Jacob Burns Institute for Advanced Legal Studies
Faculty Research Paper No. 686

Qualified Immunity’s Flawed Foundation
111 CAL. L. REV __ (forthcoming)

Alexander A. Reinert
Max Freund Professor of Litigation & Advocacy
Director, Center for Rights and Justice
Cardozo Law School
55 Fifth Avenue
New York, NY 10003
This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection

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Qualified Immunity’s Flawed Foundation
Alexander A. Reinert *


Visiting Professor of Law, Cornell Law School; Max Freund Professor of Litigation &

Advocacy, Benjamin N. Cardozo School of Law. For their comments on earlier iterations of this Article,
I am deeply grateful to Karen Blum, Alan K. Chen, Kevin M. Clermont, Will Crozier IV, Michael C.
Dorf, Avlana Eisenberg, Brandon L. Garrett, James Grimmelmann, Michael E. Herz, Ion Moyn, James
E. Pfander, Adele Quigley-McBride, Teressa Ravenell, Joanna C. Schwartz, Fred Smith, Jr., Stewart
Sterk, and Jennifer Teitcher. For her insights on canons of statutory construction, I owe particular thanks
to Anita S. Krishnakumar. For their suggestions regarding the relevance of nineteenth century common
law, I am indebted to John C. P. Goldberg, Anthony J. Sebok, and Benjamin C. Zipursky.


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[Vol. 111:101

Qualified immunity has faced trenchant criticism for decades, but
recent events have renewed focus on this powerful defense to liability
for constitutional violations. This Article takes aim at the roots of the
doctrine – fundamental errors that have never before been excavated.
First, this Article demonstrates that the Supreme Court’s qualified
immunity jurisprudence is premised on a flawed application of a
dubious canon of statutory construction – namely that statutes in
“derogation” of the common law should be strictly construed.
Applying the Derogation Canon, the Court has held that 42 U.S.C. §
1983’s silence regarding immunity should be taken as an implicit
adoption of common-law immunity defenses. As this Article shows, the
Derogation Canon has no appropriate role to play in interpreting
Section 1983. Its viability has been continuously called into question
for more than a century. Even when it has been applied, the canon has
been used as a reason to disfavor displacement of common-law claims,
not common-law defenses. And it is always operating in tension with a
contrary canon that remedial statutes, like Section 1983, should be
given a broad reading.

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This Article also identifies a second significant failing in the
Court’s qualified immunity law. For even if the Derogation Canon
were valid, the Reconstruction Congress that passed Section 1983
meant to explicitly displace common-law protections. Most critically,
scholars and courts have overlooked the originally-enacted version of
Section 1983, which contained a provision that specifically
disapproved of any state law limitations on the new cause of action.
For unknown reasons, that provision was not included by the Reviser
of the Federal Statutes in the first compilation of federal law in 1874.
This Article is the first to unearth the lost text of Section 1983 and
demonstrate its implications.
Taken together, these twin insights show that the problems with
the Court’s immunity doctrine run deeper than prior scholarly
criticism has imagined. Much of current qualified immunity
scholarship has addressed, in compelling fashion, how the Court has
taken immunity doctrine too far from its common-law origins. But this
Article shows that qualified immunity is flawed from the ground up. In
other words, the problem with current qualified immunity doctrine is
not just that it departs from the common law immunity that existed in
1871. The problem is that the Court has failed to grapple with the
strong arguments that no immunity doctrine at all should apply in
Section 1983 actions.

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[Vol. 111:101

Introduction ............................................................................................ 104
I. Pierson and the Emergence of Modern Qualified Immunity Doctrine114
II. An Intellectual and Doctrinal History of the Derogation Canon........ 133
A. Scholarly Treatment of the Derogation Canon .................... 133
B. The Derogation Canon in Nineteenth Century Caselaw ...... 140
C. The Derogation Canon from the Twentieth Century to the
Present ................................................................................. 153
III. The Lost Text of Section 1983 ......................................................... 165
A. The Civil Rights Act of 1871’s Abrogation of Common-Law
Defenses............................................................................... 166
B. The Notwithstanding Clause and the Civil Rights Act of
1871’s History and Structure ............................................... 171
IV. Implications and Objections ............................................................. 179
Conclusion .............................................................................................. 187
Qualified immunity—the affirmative defense available to government
officials sued in damages for violations of federal law—is under renewed assault.
Critics who otherwise share little common ground attack the doctrine on multiple
grounds. 1 Scholars and practitioners claim that it imposes insuperable barriers to


For example, Justices Sonia Sotomayor and Clarence Thomas have each criticized the

doctrine in recent years, albeit on different grounds. Ziglar v. Abbasi, 137 S. Ct. 1843, 1870 (2017)
(Thomas, J., concurring in part and concurring in the judgment) (noting his “growing concern with our
qualified immunity jurisprudence.”); Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J.,
dissenting) (criticizing the Court’s “one-sided approach to qualified immunity [which] transforms the
doctrine into an absolute shield for law enforcement.”). Advocacy organizations with wide-ranging
ideological commitments have joined in amicus briefs urging that the doctrine be reconsidered. See, e.g.,
Brief of Amici Curiae Institute for Justice, Cato Institute, American Civil Liberties Union, and American
Civil Liberties Union of Colorado in Support of Plaintiff-Appellee 16-21, Frasier v. Evans, No. 19-1015
(10th Cir. May 6, 2019), available at 2019 WL 2024705 (discussing qualified immunity’s failings); Brief

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relief in important civil rights litigation brought under 42 U.S.C. § 1983 and
other federal law. 2 Others argue that immunity doctrine is inconsistent with
Section 1983’s text and purpose. 3 Constitutional theorists question the gap it

of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust
in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner, Allah v.
Milling, No. 17-8654 (U.S. July 11, 2018), available at 2018 WL 3388317 (arguing that Court should
revisit qualified immunity doctrine); Karen M. Blum, Qualified Immunity: Time to Change the Message,
93 NOTRE DAME L. REV. 1887, 1890–91 (2018) (describing the Cato Institute’s “assault” on qualified
immunity); Alan Feuer, Advocates from Left and Right Ask Supreme Court to Revisit Immunity Defense,
N.Y. Times (July 11, 2018), [] (detailing petitions). And the project to
legislatively revise qualified immunity has support beyond Democratic lawmakers. Jordain Carney,
GOP Senator to Offer Measure Changing Qualified Immunity for Police, Hill (June 17, 2020, 1:39 PM), [].

See, e.g., Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. ST. THOMAS L.J.

477, 494-95 (2011) (describing civil rights attorneys’ perception that qualified immunity can be a
substantial obstacle to success); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 NW.
U. L. REV. 1101, 1131-38 (2020) (same); Martin A. Schwartz, Fundamentals of Section 1983 Litigation,
17 TOURO L. REV. 525, 547 (2001) (describing qualified immunity as “potent” defense at trial).

Jack M. Beermann, A Critical Approach to Section 1983 with Special Attention to Sources

of Law, 42 STAN. L. REV. 51, 57–70 (1989) (criticizing Court’s interpretation of Section 1983 in light
of its text); Richard A. Matasar, Personal Immunities Under Section 1983: The Limits of the Court’s
Historical Analysis, 40 ARK. L. REV. 741, 774, 794 (1987) (arguing that the Supreme Court obscures
Reconstruction Congress’s intent in order to hide its own policy preferences).

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[Vol. 111:101

leaves between rights and remedies, 4 and empiricists call into doubt its
effectiveness as a matter of policy. 5 This is only a brief rehearsal of its alleged
failings. 6
This paper adds a heretofore unexplored critique: there is no foundation to
the interpretive premise upon which qualified immunity rests. The methodology
the Court used to create the doctrine – the canon of construction disfavoring
implied repeal of the common law – was never a legitimate ground for importing
common-law defenses into newly-created statutory rights. And when the Court


See, e.g., David Achtenberg, Immunity Under 42 U.S.C. S 1983: Interpretive Approach and

the Search for the Legislative Will, 86 NW. U. L. REV. 497, 499–500 (1992) (arguing that Section 1983
should be read to incorporate only those immunities consistent with protecting individual rights); Erwin
Chemerinsky, Closing the Courthouse Doors, 41 HUM. RTS. 5, 6-7 (2014) (describing barriers imposed
by qualified immunity); David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court:
Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23, 77 (1989) (arguing
that qualified immunity doctrine “unnecessarily subordinates constitutional protections to interests of
governmental efficiency.”).

See, e.g., Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 891 (2014).


For articles questioning the origins of qualified immunity, see generally William Baude, Is

Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45 (2018); Jennifer A. Coleman, 42 U.S.C. Section
1988: A Congressionally-Mandated Approach to the Construction of Section 1983, 19 IND. L. REV. 665
(1986); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797
(2018). For a structural critique of qualified immunity, see Katherine Mims Crocker, Qualified Immunity
and Constitutional Structure, 117 MICH. L. REV. 1405 (2019). For a critique of the practical
consequences of qualified immunity, see Lynn Adelman, The Erosion of Civil Rights and What to Do
About It, 2018 WIS. L. REV. 1 (2018); Alan Chen, The Facts About Qualified Immunity, 55 EMORY L.
J. 229 (2006).

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applied this flawed methodology to its interpretive task, it made a second
mistake: it disregarded the explicit (albeit obscured) statutory text of the 1871
Civil Rights Act, the original version of Section 1983, that speaks to the
Reconstruction Congress’s intent to create liability for constitutional violations
and displace any common-law immunities in existence. The Supreme Court has
never acknowledged this text, let alone explained how it can be squared with the
Court’s immunity jurisprudence. This is the first scholarly effort to excavate
Section 1983’s original language and explore its significant implications.
Qualified immunity, as the name implies, is conditional. Unlike absolute
immunity, which bars recovery regardless of how egregious the legal violation, 7
qualified immunity contemplates that in some circumstances damages may be
recovered against government officials. The doctrine was first introduced in a
1967 decision involving Mississippi police officers, Pierson v. Ray. 8 There the
Court held that 42 U.S.C. § 1983 incorporated a “good faith” immunity defense
that protected government officials from liability at common law in 1871, when
Section 1983 was enacted. 9 Much of Pierson’s logic flowed from the Court’s
earlier decision in Tenney v. Brandhove, 10 holding that legislative immunity


See Stump v. Sparkman, 435 U.S. 349 (1978).


386 U.S. 547 (1967).


Id. at 557; see also Rehberg v. Paulk, 566 U.S. 356, 361–62 (2012) (collecting cases

discussing Court’s assumption that Congress did not intend Section 1983 to revoke common-law

341 U.S. 367 (1951).

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[Vol. 111:101

recognized at common law was not abolished by Section 1983. 11 Since Pierson,
the Court has modified and extended qualified immunity doctrine, such that it
now protects officers regardless of their good faith, so long as they behaved
reasonably in light of clearly established law. 12
Critics have long argued that the modern extension of qualified immunity
is an improper form of federal common law-making. 13 These ideas have gained
more traction recently, with Justice Clarence Thomas expressing openness to
arguments that the Court’s immunity doctrine is illegitimate judge-made law that
departs from the common-law defense that existed when Section 1983 was
enacted. 14 On some accounts, this means that courts must abandon qualified
immunity as it currently exists and return to the immunity that existed circa


Id. at 376; see also Pulliam v. Allen, 466 U.S. 522, 529 (1984) (“The starting point in our

own analysis is the common law. Our cases have proceeded on the assumption that common-law
principles of . . . immunity were incorporated into our judicial system and that they should not be
abrogated absent clear legislative intent to do so”).

See, e.g., Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam). I discuss the

history of qualified immunity doctrine in greater detail below. See infra Part I.

See, e.g., Rudovsky, supra note 4, at 74.


See Ziglar, 137 S. Ct. at 1870 (Thomas, J., concurring in part and concurring in the

judgment); Baxter v. Bracey, 140 S. Ct. 1862, 1864 (2020) (Thomas, J., dissenting from denial of cert.);
see also Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting) (“As I have observed
earlier, our treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to
the common-law immunities that existed when § 1983 was enacted, and that the statute presumably
intended to subsume.”)

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1871. 15 These critics accept Pierson’s logic –that Congress meant to adopt the
good faith immunity that existed at common law, because of what I will call the
Derogation Canon -- the canon of statutory interpretation that statutes in
“derogation” of the common law should be strictly construed. 16 If Congress
meant to overrule the common-law doctrine of qualified immunity, according to
this account, it would have done so explicitly.
But this criticism is only half-right. Will Baude, among others, is surely
correct to observe that current qualified immunity doctrine departs significantly
from common-law principles. 17 But it does not follow that rejecting the Court’s
current qualified immunity doctrine necessarily requires substituting whatever
immunity doctrine existed at common law in 1871. This is so for several reasons
that scholars have overlooked.


Baxter, 140 S. Ct. at 1864 (2020) (Thomas, J., dissenting from denial of cert.) (“Regardless

of what the outcome would be, we at least ought to return to the approach of asking whether immunity
was historically accorded the relevant official in an analogous situation at common law.”) (internal
quotation marks omitted).

This canon takes many forms, including that the common law is not to be overruled by

implication or the presumption that the common law supplies the “default” rule against which Congress
legislates. See Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020)
(using “default rule” formulation); United States v. Texas, 507 U.S. 529, 534 (1993) (“In order to
abrogate a common-law principle, the statute must speak directly to the question addressed by the
common law.”) (internal quotation marks omitted). For purposes of this paper these all are considered
part of the Derogation Canon.

See, e.g., Baude, supra note 6, at 77-80.

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[Vol. 111:101

First, as a matter of interpretive methodology, the Derogation Canon is a
tenuous one upon which to base any importation of immunity doctrine into
Section 1983. At the time the Civil Rights Acts were passed, influential treatises
called the canon into question, rooted as it was in a judicial supremacist world in
which courts viewed common law as a font of perfection and were skeptical of
parliamentary intervention. 18 That criticism has only grown over time. In 1908,
in a Harvard Law Review article, Roscoe Pound amplified the concerns about
the canon’s legitimacy, concluding that its “archaic notions of interpretation”
made it “wholly inapplicable to and out of place in American law of today.” 19
And just as the Supreme Court was relying on the canon in its mid-1950s and
1960s decisions regarding immunity and Section 1983, scholars were debating
its validity. 20 In modern times, the late Justice Antonin Scalia has been one of
many who have criticized application of the canon. 21 The Derogation Canon
itself aims to limit the power of the legislature and enhance the power of
judges, 22 making it ironic that it has been invoked by Justices who claim that


See infra Part II.A.


Roscoe Pound, Common Law and Legislation, 21 Harv. L. Rev. 383, 387-88 (1908).


Jefferson B. Fordham and J. Russell Leach, Interpretation of Statutes in Derogation of the

Common Law, 3 VANDERBILT L. REV. 438, 441-44 (1950)


TEXTS 318 (West 2012).

Cass R. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 873, 873-79 (1987) (identifying

the Derogation Canon as rooted in the suspicion that statutes were unseemly intrusions on an idealized
common law system). For a description of the distinction between “language” and “substantive” canons

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they are giving effect to the Reconstruction Congress’s original intent in passing
Section 1983. 23
But even if one accepts that the Derogation Canon should guide statutory
interpretation, applying it to Section 1983 of all statutes is questionable. In
general, outside of the criminal context, the canon has been used as a reason to
disfavor displacement of common-law claims or rights, not common-law
defenses. 24 And the Derogation Canon stands in tension with the presumption
that remedial statutes should be read broadly. 25 This is especially so for statutes
that, like Section 1983, created rights of action in new substantive areas of law. 26
It is thus no surprise that from the Founding Era until Reconstruction, the

of construction, see Anita S. Krishnakumar & Victoria F. Nourse, The Canon Wars, 97 Tex. L. Rev.
163, 179-80 (2018).

To the contrary, as I demonstrate in this Article, there are compelling reasons to believe that

the 1871 Congress would have been surprised to learn that the Court has read the immunity defense into
the text of Section 1983. Infra Part II.A & B.

See infra Part II.B.


Karl Llewellyn noted the tension between these two canons in his classic article on statutory

construction. See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or
Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401 (1950); see also Anita S.
Krishnakumar, Dueling Canons, 65 DUKE L.J. 909, 934 (2016) (describing these two canons as dueling
substantive canons); Michael Sinclair, “Only A Sith Thinks Like That”: Llewellyn’s “Dueling Canons,”
One to Seven, 50 N.Y.L. SCH. L. REV. 919, 938–48 (2006) (discussing relationship between canons);
Ilan Wurman, Qualified Immunity and Statutory Interpretation, 37 SEATTLE U. L. REV. 939, 978–79
(2014) (discussing contrast between canons).

See infra Part II.C.

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[Vol. 111:101

Derogation Canon was never used as a means to dilute statutory rights by
implying a common-law defense. 27 Even after Reconstruction, the canon was
used primarily to protect pre-existing rights at common law from statutory
incursion. 28 Reconstruction-era legislators would have had no reason grounded
in law to believe that common-law defenses would be incorporated into Section
1983’s newly-created cause of action.
Putting aside these compelling reasons for concluding that the Derogation
Canon is an inappropriate vehicle for importing common-law defenses into
Section 1983, there is a second piece of evidence demonstrating that the Court’s
immunity jurisprudence is a profound misadventure: Even if the canon were
valid, and even if it were applicable to a statute like Section 1983, the
Reconstruction Congress adopted explicit text that displaced common-law
defenses when it enacted the original version of Section 1983. To appreciate this
point, one has to dig beyond the conventional analyses of Section 1983. Most
critically, scholars and courts have overlooked the version of Section 1983 that


See infra Part II.B. Indeed, it is noteworthy that when the defendants in Pierson pressed their

claim that common-law immunities should apply to Section 1983, they could only cite to cases
concerning common-law rights of action, not purported general defenses. Mobile Gas Serv. Corp v. Fed.
Power Comm’n, 215 F.2d 883, 889 (3d Cir. 1954), aff’d sub nom. United Gas Pipe Line Co. v. Mobile
Gas Serv. Corp., 350 U.S. 332 (1956) (statute does not displace common-law contract right); Am. Dist.
Tel. Co. v. Kittleson, 179 F.2d 946, 953 (8th Cir. 1950) (statute does not displace common-law tort action
for indemnity); Scharfeld v. Richardson, 133 F.2d 340 (D.C. Cir. 1942) (statute does not displace
common law’s treatment of dog as personal property for purpose of tort damages).

See infra Part II.C.

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was enacted by the Reconstruction Congress. The Civil Rights Act of 1871
created a cause of action for violation of federal law by state actors – what we
now call Section 1983 – and made clear that such a claim would be viable
notwithstanding “any such law, statute, ordinance, regulation, custom, or usage
of the State to the contrary.” 29 For reasons unknown, this critical clause (for
purposes of this paper, I will call it the “Notwithstanding Clause”) was omitted
when the Reviser of the Federal Statutes – lacking any authority to alter positive
law – published the first compilation of federal law in 1874. 30 That error was
compounded when the Revised Statutes were collected in the United States
Code. 31 And because the common law of immunity for state actors, to the extent
any existed, was generally state law immunity, Section 1983’s original text
conveys congressional intent that immunity defenses should not apply to the
newly created civil rights actions. What’s more, this reading is confirmed by
contemporaneous legislative history and other provisions of the Civil Rights Act
of 1871. 32
In other words, the problem with current qualified immunity doctrine is not
just that it departs from the common-law immunity that existed when Section


An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the

United States, and for Other Purposes, ch.22, §1, 17 Stat. 13 (1871) [hereinafter “Civil Rights Act of

See infra Part III.A.


As discussed below, see infra notes 230-235 and accompanying text, 42 U.S.C. § 1983 does

not include the Notwithstanding Clause in its text.

See infra Part III.C.

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[Vol. 111:101

1983 was enacted, as scholars have argued and at least Justice Thomas has
hinted. That is true, but only half the story. The real problem is that if we are to
be true to text adopted by the enacting Congress and to other evidence of
legislative intent, no qualified immunity doctrine at all should apply in Section
1983 actions.
I develop these arguments in four parts. In Part I, I briefly rehearse the
history of qualified immunity doctrine and the criticisms that have been leveled
against it. In Part II, I excavate Pierson’s failure – its unprecedented application
of the Derogation Canon to incorporate a common-law defense into a novel
remedial statute like Section 1983. In Part III, I show that, even if the Derogation
Canon should apply to Section 1983, text and legislative history show that
Congress did not intend for common-law immunities to bar actions brought
under Section 1983. In Part IV, I turn to the significant implications of this
Article, which go beyond qualified immunity doctrine, and I also address
anticipated objections.
When civil rights litigants seek damages against state and local officials
under 42 U.S.C. § 1983, or against federal officials via Bivens actions, 33 there


See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

(implying a private cause of action against federal officials for violation of the Fourth Amendment).

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are many barriers to success. 34 Among the most closely scrutinized is the
doctrine of qualified immunity, which protects officers from damages liability
even when they violate the constitution, if the law was not “clearly established”
or if the officers reasonably believed they were not acting unconstitutionally. 35
The seeds of the qualified immunity defense were sown in Tenney v.
Breedlove, which concerned whether Section 1983 permitted damages claims
against state legislators. 36 The Court started by tracing the long history of
legislative immunity, found at common law and in both state and federal
constitutions. 37 Federalism and separation of powers principles all suggested that
legislative immunity was necessary for a functioning representative
democracy. 38 Eeven after making the “big assumption” that Congress had the
power “to limit the freedom of State legislators acting within their traditional
sphere,” the Court asked whether it could make “an even rasher assumption to
find that Congress thought it had exercised the power.” 39 The Court’s framing
presaged the answer: no, because absent some evidence from the text or “spelled


See Joanna C. Schwartz, After Qualified Immunity, 120 COLUM. L. REV. 309, 329-34 (2020)

(discussing barriers to success in Section 1983 litigation); Alexander A. Reinert, Measuring the Success
of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 STAN. L. REV. 809,
842-44 (2010) (discussing reasons Bivens claims fail).

See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1152, (2018) (summarizing doctrine).


341 U.S. 367, 369 (1951).


Id. at 372-75.


Id. at 372-76


Id. at 376.

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[Vol. 111:101

out in debate,” the Court could not conclude that Congress contemplated doing
away with a “tradition so well grounded in history and reason by covert inclusion
in the general language before us.” 40 At the same time that the Court upheld
absolute immunity for legislators, it recognized that the immunity might not
extend to “an official acting on behalf of the legislature,” suggesting a potential
distinction between legislators and other state officials. 41
Sixteen years after the Court decided Tenney, it addressed the reach of
Section 1983 in actions brought against a judge and three police officers, in
Pierson v. Ray. 42 The plaintiffs were Freedom Riders who were arrested while
protesting segregated bus facilities in Jackson, Mississippi in September 1961. 43
The defendants claimed immunity from damages, and while the Court of
Appeals found that the judge was entitled to absolute immunity, 44 it interpreted
the Supreme Court’s decision in Monroe v. Pape 45 to preclude any immunity for




Id. at 378-79 (citing Kilbourn v. Thompson, 103 U.S. 168, 204–05 (1880)). The Tenney

Court observed that Kilbourn had “allowed a judgment,” 341 U.S. at 378, against the Sergeant-at-Arms,
acting at the order of the House, even if the legislators who directed him to act could not be held

386 U.S. 547 (1967).


Beginning in 1961, the Congress of Racial Equality’s organized a “Freedom Rides”

campaign to challenge segregated transportation across the South. See generally Diane McWhorter, The
Enduring Courage of the Freedom Riders, 61 J. Blacks Higher Educ. 66 (2008).

Pierson v. Ray, 352 F.2d 213, 217 (5th Cir. 1965).


365 U.S. 167 (1961).

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Section 1983 claims against police officers. 46 In the Supreme Court, judicial
immunity was low-hanging fruit – like the legislative immunity recognized in
Tenney, judicial immunity was well established at common law, necessary to
preserve an independent judiciary, and the Court found no “clear indication” in
the legislative record that Congress intended to abrogate “wholesale all commonlaw immunities.” 47 For police officers, however, the Court concluded that while
there was no tradition in the common law of an “absolute and unqualified
immunity” a more limited good faith immunity was appropriate. 48 The Court
rejected the Fifth Circuit’s understanding of Monroe, noting that Monroe stated
that Section 1983 “should be read against the background of tort liability that
makes a man responsible for the natural consequences of his actions.” 49 And the
background of tort liability, according to the Pierson Court, supported a good
faith or probable cause defense, at least “in the case of police officers making an
arrest.” 50 The Court was less clear about the source of that common-law


Pierson, 352 F.3d at 218. The Fifth Circuit’s did not explain its reasoning but claimed that

it followed from Monroe’s imposition of Section 1983 liability even where officers did not act willfully.

Pierson v. Ray, 386 U.S. 547, 554 (1967).


Id. at 555.


Monroe, 365 U.S. at 187 (quoted by Pierson, 386 U.S. at 556).


Pierson, 386 U.S. at 556-57. Pierson’s reliance on that particular sentence from Monroe is

puzzling, in the context of immunities. First, read literally – that a defendant should be “responsible for
the natural consequences of his actions” – it undermines any argument for immunity. Immunity
functions in exactly the opposite fashion – it renders a defendant unaccountable for the consequences of
his actions, so long as he meets certain conditions of the defense. Second, when read in the context of

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[Vol. 111:101

immunity for officers – unlike with legislative or judicial immunity, it did not
canvass the common law of the eighteenth and nineteenth centuries, but instead
referred to contemporaneous Mississippi common-law doctrine from the
1950s. 51
Whether the Pierson Court had intended that its good faith immunity be
limited or adjudicated on a case-by-case basis, it soon became clear that the
immunity had a broad reach. First, it was applied across the board to state
officials who exercised non-ministerial functions. In Scheuer v. Rhodes, 52 the
Court relied on Pierson to find that Ohio’s governor and other state officials,
sued after the National Guard shot and killed four students during anti-war

Monroe itself, it is clear that the Court was referring to background principles of tort law to contrast
Section 1983 with the Civil Rights Act’s criminal analog, now codified at 18 U.S.C. § 242. The Court
relied on background principles of tort law to justify its holding that it should be easier to establish civil
liability under Section 1983 than criminal liability under Section 242. See Monroe, 365 U.S. at 188
(contrasting Section 1983 with criminal civil rights statute interpreted in Screws v. United States, 325
U.S. 91, 101-103 (1945)).

The Pierson court relied on the Court of Appeals application’ of Mississippi’s good faith

immunity for state law claims for false arrest and imprisonment to support its holding that a good faith
defense also applies to Section 1983 claims arising out of the same facts. 365 U.S. at 557 (“We hold that
the defense of good faith and probable cause, which the Court of Appeals found available to the officers
in the common-law action for false arrest and imprisonment, is also available to them in the action under
§ 1983.”). Justice Douglas dissented, relying on the text, purpose, and legislative history of Section 1983
to conclude that Congress did not mean to import common-law doctrines of judicial immunity or goodfaith immunity for police officers. Id. at 564–66 (Douglas, J., dissenting).

416 U.S. 232 (1974).

Electronic copy available at:




protests at Kent State University, 53 were all entitled to qualified immunity of
varied scope. 54 And in Wood v. Strickland, 55 the Court relied on Pierson,
Scheuer, and state common law to extend a good faith immunity to school board
members sued for damages arising from student disciplinary proceedings. 56
After Pierson, the Court consistently relied on the presumptions against implied
repeal of the common law in the context of Section 1983 immunities. 57


The shootings at Kent State took place on May 4, 1970, during a demonstration opposing

the expansion of American military presence into Cambodia and protesting the National Guard’s
presence on campus. See John Fitzgerald O’Hara, Kent State/May 4 and Postwar Memory, 58 AM.
QUARTERLY 301, 302 (2006). Criminal charges against eight national guardsmen were dismissed, id. at
302-03, and the civil rights action in Scheuer was eventually settled after a trial and subsequent appeal,
Yale Preserves History of Kent State Tragedy, N.Y TIMES, May 6, 1990, 12CN, at 6

416 U.S. at 247 (noting that the scope of immunity would depend “upon the scope of

discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the
time of the action on which liability is sought to be based.”).

420 U.S. 308 (1975).


Id. at 318.


Malley v. Briggs, 475 U.S. 335, 339–42 (1986) (looking to common law to determine

context of officer seeking an arrest warrant but recognizing that policies of Section 1983 could displace
common law’s guidance;); Briscoe v. Lahue, 460 U.S. 325, 337 (1983) (“[W]e find no evidence that
Congress intended to abrogate the traditional common-law witness immunity in § 1983 actions.”);
Procunier v. Navarette, 434 U.S. 555, 561 (1978) (“Although the Court has recognized that in enacting
§ 1983 Congress must have intended to expose state officials to damages liability in some circumstances,
the section has been consistently construed as not intending wholesale revocation of the common-law
immunity afforded government officials.”); Imbler v. Pachtman, 424 U.S. 409, 418 (1976) (“The

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[Vol. 111:101

Second and most consequentially, in Harlow v. Fitzgerald, decided in 1982,
the Court rejected the common-law “good-faith” version of qualified immunity
applied in Pierson and its progeny, choosing instead an objective test that
focused on the reasonableness of the officer’s behavior in light of “clearly
established” law. 58 The Court saw the good-faith standard, with its emphasis on
the subjective intentions of the defendant, as insufficiently protective against
“ingenious plaintiff’s counsel” who could create material issues of fact based on
little evidence, thereby surviving summary judgment and forcing a trial or
settlement. 59 Instead, an “objective reasonableness” standard was necessary to
“permit the resolution of many insubstantial claims on summary judgment.” 60
Much of Harlow’s basic structure survives to this day. If an official can establish
either that the relevant constitutional law was not clear enough, or that she
reasonably believed her conduct was lawful in light of clearly established law,
under the circumstances as she understood them, 61 then she is immune from
damages liability.

decision in Tenney established that § 1983 is to be read in harmony with general principles of tort
immunities and defenses rather than in derogation of them.”).

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Malley, 475 U.S. at 341.


Harlow, 457 U.S. at 817 n.29 (internal quotation marks omitted).


Id. at 818.


Qualified immunity has been described as an affirmative defense, see Gomez v. Toledo, 446

U.S. 635, 640 (1980), but not every circuit consistently allocates to the defendant the burdens of
establishing the defense. See Alexander A. Reinert, Qualified immunity at Trial, 93 NOTRE DAME L.
REV. 2065, 2071-72 (2018) (describing different approaches to allocating burdens).

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Harlow expressly sought to mediate the tension between providing citizens
with a remedy for constitutional violations while recognizing that “claims
frequently run against the innocent as well as the guiltyat a cost not only to the
defendant officials, but to society as a whole.” 62 Over time, even though
Harlow’s basic standard has survived, the Court has slowly come to emphasize
almost exclusively the latter over the former – protecting defendants from suit
appears to be the Court’s prime directive.
One can see this in the procedural accommodations made to defendants
who raise the immunity defense. Qualified immunity can be invoked at any time:
at the motion to dismiss stage, after limited or full discovery through summary
judgment, and at trial. 63 The Court has directed lower court judges to resolve
qualified immunity, if possible, prior to trial, for the value of the immunity is
“effectively lost if a case is erroneously permitted to go to trial.” 64 Defendants
may seek protection from discovery until the threshold legal question of qualified
immunity is resolved. 65 And defendants sued in federal court may seek
interlocutory appeals when the defense is rejected – sometimes triggering
multiple appeals in a single case -- of otherwise unappealable denials of motions
to dismiss or summary judgment, so long as the appeal is confined to law-based


Harlow, 457 U.S. at 814.


See Behrens v. Pelletier, 516 U.S. 299, 306–07 (1996); Mitchell v. Forsyth, 472 U.S. 511,

526 (1985).

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Mitchell, 472 U.S. at 526).


See Siegert v. Gilley, 500 U.S. 226, 232 (1991).

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[Vol. 111:101

qualified immunity arguments. 66 This exception to the final judgment rule is
justified as one more tool for public officials to terminate insubstantial suits
promptly. 67
The defendant-friendly trend in qualified immunity is also reflected in the
gradual narrowing of what constitutes “clearly established” law for the purposes
of the defense. Over the years, the Court has insisted on more and more factual
similarity between prior cases and the defendants’ alleged conduct to overcome
the immunity defense. Only a few decisions break this monotony, and those are
exceptions that prove the rule because they involve the rare case in which a
constitutional violation is so obvious that one would not need a prior case to
establish it with clarity. 68 But in the main, the Court has spent the past three
decades progressively and forcefully emphasizing that that, for law to be “clearly


See Behrens, 516 U.S. at 307–09; Mitchell, 472 U.S. at 526–27. Not every issue raised in

the district court will be reviewable by an appellate court, however. In general, what is immediately
appealable in a qualified immunity case is the “essentially legal question whether the conduct of which
the plaintiff complains violated clearly established law.” Mitchell, 472 U.S. at 526.

See Behrens, 516 U.S. at 306.


Hope v. Pelzer, 536 U.S. 730, 741-44 (2002) (holding that qualified immunity was

inappropriate where plaintiff was tied to a hitching post for hours and denied access to water); see also
Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam) (citing Hope and holding that qualified immunity
was unavailable on “the particularly egregious facts of this case [. . .]”).

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established,” prior cases must speak with such clarity that only a “plainly
incompetent” official would fail to see the unlawfulness of their conduct.69
Finally, one can see the Supreme Court’s solicitude for defendants in its
tinkering with the mechanism for how “clearly established” law develops over
time. As law develops and becomes better established, qualified immunity
becomes a less effective defense. But law cannot become “clearly established”
unless courts resolve the predicate, merits-based question, of whether a
plaintiff’s constitutional rights were even violated by the defendant’s conduct.
In the absence of initial guidance from the Supreme Court, some courts tended
to resolve the merits question first, turning to qualified immunity only if
necessary. 70 Other courts, however, found it convenient at times to resolve
qualified immunity first, for if the law was not clearly established, it was
unnecessary to determine whether any constitutional violation was stated. 71 The
Supreme Court intervened in 1999 and 2001, directing lower courts that there
was a mandatory two-step analysis that governed motions seeking qualified


The “plainly incompetent” language originated more than three decades ago. See Malley,

475 U.S. at 349. But it echoes throughout the entirety of modern qualified immunity jurisprudence. See,
e.g., Kisela, 138 S. Ct. at 1152.

See, e.g., Jones v. Shields, 207 F.3d 491, 494–95 (8th Cir. 2000); Kitzman–Kelley v. Warner,

203 F.3d 454, 457 (7th Cir. 2000); Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000);
Hartley v. Parnell, 193 F.3d 1263, 1270–71 (11th Cir. 1999).

See, e.g., Horne v. Coughlin, 191 F.3d 244, 248 (2d Cir. 1999); Somers v. Thurman, 109

F.3d 614, 617 (9th Cir. 1997).

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[Vol. 111:101

immunity. 72 Defendants were first required to show that, after drawing all factual
inferences in plaintiffs’ favor, plaintiffs have not alleged facts which “show the
officer’s conduct violated a constitutional right.” 73 If defendants could not meet
this burden, they then were required to show that they nonetheless were entitled
to qualified immunity under either of the two prongs identified above. 74
Almost immediately, members of the Court and some lower court judges
criticized this mandatory sequencing rule for unnecessarily forcing judges to
decide difficult constitutional questions. 75 So in 2009, in Pearson v. Callahan,
the Court abandoned its rule and gave lower courts discretion to decide for
themselves whether to address the merits question or the immunity question
first. 76 The shift was driven by the Court’s concern that the Saucier two-step
analysis posed the risk that courts would issue advisory opinions by
unnecessarily deciding whether the plaintiff’s allegations established a violation


Saucier v. Katz, 533 U.S. 194, 201 (2001); Conn v. Gabbert, 526 U.S. 286, 290 (1999).


Saucier, 533 U.S. at 201. This is essentially the same inquiry that is required by any Rule

12(b)(6) motion.



See, e.g., Morse v. Frederick, 551 U.S. 393, 432 (2007) (Breyer, J., concurring in judgment

in part and dissenting in part) (“I would end the failed Saucier experiment now”); Brosseau v. Haugen,
543 U.S. 194, 201–202 (2004) (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring) (urging Court
to reconsider Saucier’s “rigid ‘order of battle’); Purtell v. Mason, 527 F.3d 615, 622 (7th Cir. 2008)
(collecting criticisms); Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U.
L. REV. 1249, 1275, 1277 (2006) (criticizing Saucier as “a new and mischievous rule” that amounts to
“a puzzling misadventure in constitutional dictum”).

Pearson, 555 U.S. 223, 234–36 (2009).

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of the law. 77 In taking account of this fear, however, the Court opened itself up
to a different criticism, namely that skipping Saucier’s first step raises the
concern that constitutional law will become static because courts will focus on
whether particular rights were clearly established at the time of alleged
violations, rather than whether the right exists at all. 78 And if, as empirical
evidence suggests, 79 courts do not decide whether the right exists at all, no new
clearly established law will be created, leaving victims of constitutional
violations unprotected.
The Court’s strengthening of qualified immunity’s protections over time
has generated significant academic attention. 80 Commentators have criticized
the gradual ratcheting up of the protections offered by the defense. 81 Many


Id. at 240-41.


Id. at 242-43.


See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis,

36 PEPP. L. REV. 667, 670 (2009) (finding that judicial avoidance decreased when courts were required
to follow the two-step approach of Saucier); Aaron L. Nielson & Christopher J. Walker, The New
Qualified Immunity, 89 S. CAL. L. REV. 1, 49 (2015) (finding that judges are less likely to decide
constitutional questions when the rights at issue are not clearly established).

A comprehensive discussion of qualified immunity scholarship would test the patience of

even the most devoted reader. By way of illustration, Westlaw reports that as of December 20, 2021,
since 1980 there are 427 law review articles with the words “qualified immunity” in the title. This is
surely a significant underestimate of the articles devoting substantial discussion to the doctrine—
Westlaw reports that there are at least 1,650 law review articles in which the phrase “qualified immunity”
is used ten times or more over the same time period.

See sources cited supra notes 4 & 6.

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[Vol. 111:101

scholars, most notably Joanna Schwartz, have provided empirical evidence that
undermines the Court’s assumption that qualified immunity is necessary to
protect government officials from the threat of civil liability. 82 Perhaps most
significantly, scholars have questioned the very genesis of the doctrine, arguing
that the Court misconstrued the common law at the time Section 1983 was
enacted. 83
This fundamental assault on the Court’s use of common-law immunity
doctrine to inform its reading of Section 1983 has been maintained over decades,
but has earned renewed attention in the past few years. 84 Many years ago,


Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L. J. 2 (2017).


This argument was recently endorsed by Justice Clarence Thomas in concurrence in Ziglar

v. Abbasi, 137 S. Ct. 1843 (2017). In his opinion, Justice Thomas openly invited argument that the
Court’s qualified immunity doctrine has gone off the rails. Citing Will Baude’s law review article, see
supra note 6, Justice Thomas notes his “growing concern with our qualified immunity jurisprudence.”
137 S. Ct. at 1870 (Thomas, J., concurring in part and concurring in the judgment).

See Achtenberg, supra note 4, at 499–500 (arguing that Section 1983 should be read to

incorporate only those immunities that are consistent with protecting individual rights); Beermann,
supra note 3, at 57–70 (discussing Court’s approach to immunities in Section 1983, sourcing it in the
canon of construction that strictly construes statutes in derogation of common law, and criticizing Court
for failing to explain its dissonant treatment of gaps in Section 1983’s text); Coleman, supra note 6, at
676-77 (arguing that the Court’s reliance on common law of 1871 is fraught because of difficulty of
ascertaining content of the common law); id. at 686 (criticizing Pierson because no good faith immunity
for officers existed and Court was creating defense on its own); Seth F. Kreimer, The Source of Law in
Civil Rights Actions: Some Old Light on Section 1988, 133 U. PA. L. REV. 601, 609-10 (1985)
(explaining how Court’s immunity defense is detached from 1871 common law); Matasar, supra note
3, at 747 (“The Court believes these hundred-year-old variances are critical because it assumes the

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scholars observed both that the Court’s original conception of qualified
immunity was untethered from the common law of 1871, 85 and that even had the
Court correctly described that common law when it first adopted the doctrine in
Pierson, by the time the Court transformed the defense into an objective one
based on “clearly established law,” the Court had departed significantly from the

drafters of section 1983 incorporated and froze common law rules current in 1871 into section 1983,
despite adopting language which seemed to obliterate official immunity.”); 758-59 (arguing that
judicial immunity at common law differed from what Court has adopted).

In one case from Maine, for example, a plaintiff brought suit after he had been held in

solitary confinement in prison for longer than his original sentence. Gross v. Rice, 71 Me. 241 (1880).
The Warden defended against the action by pointing to a statute which permitted prison officials to hold
someone beyond their criminal sentence if they had been disciplined with solitary confinement for
violating prison rules. Id. at 252. The Warden acknowledged that the statute had subsequently been
declared unconstitutional, but argued that he had presumed it was valid when he applied it to the plaintiff,
in effect raising what we would now call a qualified immunity defense. Id. The 1880 court rejected the
Warden’s argument with little trouble, based both on Maine jurisprudence and other authorities. Id. at
252. This was the dominant rule in both state and federal courts during the nineteenth century. See James
E. Pfander, Zones of Discretion at Common Law, 116 Nw. U. L. rev. Online 148, 167-168 & n. 111
(collecting authority). Today’s Supreme court, by contrast, would be far more friendly to defendants. In
Heien v. North Carolina, 574 U.S. 54 (2014), for example, the Court held that no Fourth Amendment
violation occurred when an officer made a reasonable mistake of law, including in cases in which the
officer relied upon a law that was subsequently declared unconstitutional, and stated that the qualified
immunity analysis is even more “forgiving” towards an officer. Id. at 64, 67.

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[Vol. 111:101

common law roots. This criticism has come into sharper focus ever since
Supreme Court Justice Clarence Thomas referred to it in a concurrence in 2017. 86
Citing a law review article by Will Baude, Justice Thomas noted his
“growing concern with our qualified immunity jurisprudence.” 87 As Justice
Thomas explained, when qualified immunity doctrine was first identified, the
Court based the doctrine on its understanding of the common-law immunity in
existence when Congress enacted the 1871 Act. 88 As summarized above, the
Court claimed that a subjective good-faith immunity existed at common law for
law enforcement officers sued in tort. 89 The contours of that immunity, Justice
Thomas maintained, was context-dependent – for example, the good-faith
immunity applied in Pierson was tied to the specific false arrest and
imprisonment claim brought by the plaintiffs in that case. 90 Harlow, however,
transformed qualified immunity from a contextual, subjective good-faith defense
to a broad objective reasonableness standard based on the content of “clearly
established” law. 91 From Justice Thomas’s perspective, this change was not a
product of statutory interpretation but a “freewheeling policy choice” associated


See Ziglar, 137 S. Ct. at 1870 (Thomas, J., concurring in part and concurring in the


Id. (citing Baude, supra note 6).




Supra notes 43-52 and accompanying text.

90. See Ziglar, 137 S. Ct. at 1870-71 (Thomas, J., concurring in part and concurring in the
judgment) (citing Pierson, 386 U.S. at 555-57).

137 S. Ct. at 1871.

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with federal common law. 92 In the wake of Justice Thomas’s concurrence,
scholars and advocates have openly mused about the end of qualified
immunity. 93 But there is no indication that a majority of the Supreme Court
shares Justice Thomas’s skepticism. 94
Even were a majority to coalesce around Justice Thomas’s suggestion that
defenses available at common law in 1871 should also be available in Section
1983 actions, the Court would have to confront many difficult questions. Civil




See Schwartz, supra note 6, at 1802-03; Fred O. Smith, Jr., Formalism, Ferguson, and the

Future of Qualified Immunity, 93 NOTRE DAME L. REV. 2093, 2095-96 (2018); see also Perry
Grossman, Clarence Thomas to the Rescue?, SLATE (June 21, 2017),

None of Justice Thomas’s “conservative” colleagues on the Court has joined in his call for

revisiting qualified immunity, and while Justice Sotomayor has frequently criticized the Court’s
immunity doctrine, her objections appear grounded in how the doctrine has been applied, not in a general
objection to federal-judge-made law. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018)
(Sotomayor, J., dissenting) (criticizing the Court’s “one-sided” application of qualified immunity). And
while bipartisan enthusiasm for reforming qualified immunity has at times appeared high in the Senate
and House of Representatives, no politically viable option has yet emerged. See Marianne Levine &
Nicholas Wu, Lawmakers Scrap Qualified Immunity Deal in Police Reform Talks, POLITICO (Aug. 17,
2021, 05:38 PM EDT), available at []. More innovation, instead, has taken place
at the state level, in the form of the creation of state law analogues to Section 1983 that do not include
any qualified immunity defense. See Alexander A. Reinert, Joanna C. Schwartz, & James E. Pfander,
New Federalism and Civil Rights Enforcement, 116 NW. U. L. REV. 737, 758-63 (2021).

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[Vol. 111:101

rights actions against federal officials are not based in Section 1983, but instead
are implied directly from the constitution under Bivens and its progeny 95 – for
these claims, the Court could claim greater authority to craft judge-made
defenses that depart from common law principles. 96 As for Section 1983 actions,
turning directly to the common law that existed in 1871 skips at least two
analytical steps. It assumes that the gap in Section 1983 will be filled by a
uniform “common law,” when in other contexts (statutes of limitations, for
example), the law governing Section 1983 varies depending on the law of the
forum state. 97 More problematically, it assumes that Congress meant for
common-law defenses to be incorporated sub silentio into Section 1983.


For a discussion of Bivens doctrine, see generally James E. Pfander, Alexander A. Reinert,

& Joanna C. Schwartz, The Myth of Personal Liability: Who Pays When Bivens Claims Succeed, 72
STAN. L. REV. 561, 569-71 (2020); Joanna C. Schwartz, Alexander A. Reinert, and James E. Pfander,
Going Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims, 96 NOTRE
DAME L. REV. 1835, 1839-47 (2021).

Mims-Crocker, supra note 6, at 1458-59. As a result, Bivens claims might end up bearing

even less resemblance to constitutional claims brought against state actors.

A separate provision of the Civil Rights Act of 1871 directs courts to look to state law as a

gap-filler when federal law does not speak to issues arising in Section 1983 litigation or when they are
“deficient in the provisions necessary to furnish suitable remedies.” See 42 U.S.C. § 1988(a). The
Supreme Court has relied upon Section 1988 to determine that, while the applicable statute of limitations
for Section 1983 claims is a matter of federal law, it may look to state personal injury statutes of
limitations because doing so is not inconsistent with federal law. Wilson v. Garcia, 471 U.S. 261, 26870 (1985).

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This Article focuses on the second, more important, analytical question by
asking why one should even turn to the common law of 1871 to understand
Section 1983. After all, the statute itself makes no reference to any immunity and
appears to provide for liability whenever a state actor causes injury by violating
federal law. 98 The Court has settled on its answer – the Derogation Canon, which
it takes to mean that absent clear language, statutes in “derogation” of the
common law should be strictly construed. 99
In the immunity context, the Court has applied this canon to look beyond
the text of Section 1983, finding implicit Congressional intent to codify the
common-law good faith defense that the Court found to be extant when Section
1983 was originally enacted. 100 Over time, the Court has confirmed again and
again that it is this canon that took it down the road of finding absolute and
qualified immunity defenses available to people sued under Section 1983. 101


See 42 U.S.C. § 1983 (stating that “[e]very person” who violates the constitutional rights of

another “shall be liable to the party injured”) (emphasis added).

The Court did not refer specifically to the Derogation Canon in Tenney or in Pierson, but

both decisions emphasized the assumption behind the Canon: that had Congress meant to abrogate
common-law principles via Section 1983 it would have stated so explicitly. See Pierson, 386 U.S. at
554-55; Tenney, 341 U.S. at 376. Moreover, the dissent in Pierson recognized the majority’s reasoning
as based on the Derogation Canon, see Pierson, 386 U.S. at 561 (Douglas, J., dissenting), the parties’
arguments centered on the Canon, see Br. For Respondents, Pierson v. Ray, at 34 (U.S. Nov. 11, 1996),
available at 1966 WL 115420, and subsequent cases have clarified that the current Court grounds its
immunity doctrine on the Canon, see supra note 58 (collecting cases).

See Pierson, 386 U.S. at 554-55


See supra note 57 (collecting cases).

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[Vol. 111:101

The remainder of this Article is devoted to why the Court’s reliance on this
canon is misplaced and what consequences flow from that conclusion. 102 As I
show below, using the canon to import a common-law defense for a novel
remedial statute like Section 1983 is unprecedented, and even were the
Derogation Canon appropriate for the task, explicit text makes clear that the
Reconstruction Congress meant to displace state law immunities such as the one
initially applied in Pierson. The upshot is that, rather than mediate Section 1983
liability against the backdrop of the common-law immunities extant during
Reconstruction, as Justice Thomas and some academics might argue, 103 qualified
immunity and some aspects of absolute immunity 104 simply are not applicable in
any form in Section 1983 litigation. The Court’s continued application of the
defense has no basis in text, history, or doctrine – it is an example of the exercise
of illegitimate judicial power in the face of contrary legislative text and intent.


Of course, one might argue that the Derogation Canon is misplaced for different reasons.

We might choose to understand Section 1983 as a statute in furtherance rather than in derogation of the
common law, seeking to secure the effective enforcement of law against government officers who were
already subject (in theory) to its limitations. If so, perhaps different canons, with different implications
for the role of common law, would follow, but this exploration is beyond the scope of this paper.

Baude, supra note 6, at 77 (2018) (describing as “extreme” the argument that Section 1983

permits no immunities and making the more limited argument that the Court’s qualified immunity
doctrine departs “from ordinary principles of legal interpretation.”)

As I discuss below, there are colorable arguments that both legislative and judicial

immunities stand on distinct and more secure footing than qualified immunity or absolute prosecutorial
immunity. See infra notes 235-237.

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Significantly, this means that no action by Congress is necessary to reform
Section 1983, even if it would be welcomed by many advocates. 105
The Derogation Canon has a checkered history. Criticized by commentators
since the mid-nineteenth century, it nonetheless has played a meaningful, albeit
limited, role in the Supreme Court’s statutory interpretation jurisprudence. In this
Part, I first trace the history of scholarly treatment of the canon before turning to
how it has been deployed by the Supreme Court. Both commentary and case law
demonstrate that, even had Reconstruction legislators been aware of the
Derogation Canon, they would have had no reason to think that it would apply
to incorporate common-law defenses into Section 1983. Nor have developments
subsequent to Reconstruction made the canon any more applicable to the Civil
Rights Act of 1871.
A. Scholarly Treatment of the Derogation Canon
For more than a century, the Derogation Canon has been subjected to
trenchant criticism. Whether viewed as a substantive means to privilege common


As I discuss infra notes 282-285 and accompanying text, stare decisis principles are at their

peak when the question involves one of longstanding statutory interpretation. But there are notable
examples, including from Section 1983, of the Court overcoming this “super” stare decisis. See, e.g.,
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (overruling 1961 decision
interpreting Section 1983, in absence of legislative action).

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[Vol. 111:101

law because of its superiority to statutory law or as a tool for discerning
legislative intent, commentators have found little to defend. The late Justice
Antonin Scalia, writing with Bryan Garner, rejected it as “a relic of the courts’
historical hostility to the emergence of statutory law.” 106 But Justice Scalia’s
view was as common during Reconstruction as it was when he wrote almost 150
years later. Theodore Sedgwick’s influential 1874 treatise on interpretation
criticized the canon as a creature of the judicial belief that common law was “the
perfection of human wisdom,” to be jealously guarded against parliamentary
intrusion. 107 In Sedgwick’s view, “modern courts and judges” should realize that
the doctrine does not account for the “enormous changes in the relations between
the courts and the Legislature which have taken place since the rule was
promulgated.” 108


Scalia & Garner, supra note 21, at 318.




the first American text addressing the topic of statutory interpretation and remained influential into the
mid-20th century. Jack L. Landau, The Intended Meaning of “Legislative Intent” and Its Implications
for Statutory Construction in Oregon, 76 OR. L. REV. 47, 76 & n.92 (1997).

Sedgwick, supra note 107, at 270. Well before Sedgwick lodged his criticism of the

common law, David Dudley Field was prompted to codify New York civil procedure in part because of
emerging displeasure with common law rulemaking. See Kellen Funk, Equity without Chancery: The
Fusion of Law and Equity in the Field Code of Civil Procedure, New York 1846–76, 36 J. LEGAL HIST.
152, 159-60 (2015). New York’s eponymously named Field Code emerged from these efforts in 1848
and would go on to influence procedure throughout the United States. Id. at 152-53; see also Kellen

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If ever the Derogation Canon served a purpose, Sedgwick maintained, it
had “entirely passed away” by the time of Reconstruction. 109 The better rule, per
Sedgwick, and one that courts had coalesced around, was that remedial statutes,
even ones in derogation of the common law, should be liberally construed, 110
and that if the Derogation Canon had any value at all, it was only to protect
personal liberty. 111 Otherwise “the rule has become obsolete; the form of verbal
reasoning which once supported it has vanished; and the rule itself should be

Funk & Lincoln A. Mullen, The Spine of American Law: Digital Text Analysis and U.S. Legal Practice,
123 AM. HIST. REV. 132, 149-150 (2018) (using digital text analysis to map influence of Field Code).

Sedgwick, supra note 107, at 270.


Id. As one example, Sedgwick argued that the Married Women’s Property Acts, which were

adopted in many jurisdictions between 1870-1880 to expand the property rights of married women,
should be applied “fairly and reasonably according to their spirit” because of their remedial nature. Id.
at 271.

Id. (“To this extent the rule is in the highest degree valuable, not because such statutes ‘are

in derogation of the common law,’ but because they oppose the overwhelming power of the government
to the feeble power of resistance of the individual, and it is the duty of courts under such circumstances
to guard the individual as far as is just and legal, or, in other words, to preserve the individual from
having his personal rights taken away by any means that are not strictly legal.”)

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[Vol. 111:101

abolished.” 112 This also was the position advanced in the first American treatise
on negligence law, published during Reconstruction. 113
Even treatise authors who were more generous to the canon, and who saw
it as a means to discern unclear legislative intent, such as Sir Fortunatus
Dwarris, 114 opined that statutes that are directed to “public utility” (by which
Dwarris seems to be referring to the general public welfare) “ought to receive
the most liberal and benign interpretation, in accordance with the maxim ut res
magis valeat quam pereat.” 115 Dwarris recognized that, where legislation


Id. at 271; see also id. at 274 (“It would appear, therefore, that the doctrine that statutes in

derogation of the common law are to be strictly construed, has now truly no solid foundation in our
jurisprudence; and, though it will long, no doubt, be familiar to the forensic ear, that there is really no
reason whatever why the innovating statutes of our day should be regarded with any peculiar severity.”).

See Thomas G. Shearman & Amasa A. Redfield, TREATISE ON THE LAW OF NEGLIGENCE

§300, at 367-68 (1st ed. 1869) (arguing that wrongful death statutes which provided cause of action
unknown at common law “should be liberally construed in furtherance of [their] object, which is to
prevent wrongdoers from escaping through the death of their victims.”). As one court explained, even if
instantaneous death extinguished a wrongful death cause of action at common law, this limitation did
not survive the passage of a wrongful death statute. Murphy v. New York & N.H.R. Co., 30 Conn. 184,
188 (1861).

Although Dwarris was not American, his treatise was also considered influential in the

United States in the nineteenth century. Richard A. Danner, Justice Jackson’s Lament: Historical and
Comparative Perspectives on the Availability of Legislative History, 13 DUKE J. COMP. & INT’L L. 151,
174 (2003).

Sir Fortunatus Dwarris, A GENERAL TREATISE ON STATUTES, 203 n.20 (1871); see also id.

at 186 (“When a statute alters the common law, the meaning shall not be strained beyond the words,
except in cases of public utility . . . “). The maxim referred to by Dwarris is Latin for the proposition that

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addressed an issue not covered by the common law, as did Section 1983,
determining the ends of the act can be discovered “from the cause or necessity
of making the act; hence the direction to inquire into the mischief against which
the common law had not provided.” 116
J.G. Sutherland’s 1891 treatise on statutory interpretation, like Dwarris’,
gave the canon some credence, but consistent with the case law summarized
below, focused on statutes that “take away a common-law right, remove or add
to common-law disabilities, or provide for proceedings unknown . . . to [the
common law].” 117 Sutherland included numerous cites at each point, but did not
discuss common-law defenses; his focus instead was on common-law “rights”

it is better for a thing to have effect than to be made void. Although Dwarris does not define what is
encompassed by statutes directed to “public utility,” in other parts of his treatise he appears to distinguish
between laws which are in the public interest and laws which are meant to favor “particular individuals.”
See id. at 141 (summarizing “Domat’s Rules” of interpretation); id. at 405 (in the context of takings of
private property, referring to “[t]he support of government, and other objects of public utility promoted
by taxation. . . .”).

Id. at 186 (emphasis in original). Samuel Bray argues that the “mischief rule” has been

widely misunderstood but that it serves two useful purposes: (1) it helps provide a justification for how
broadly to interpret the statutory text; and (2) it helps advance interpretations that “prevent a clever
evasion that would perpetuate the mischief.” Samuel L. Bray, The Mischief Rule, 109 GEO. L. J. 967,
970 (2021).

J.G. Sutherland, STATUES AND STATUTORY CONSTRUCTION (1st ed. 1891), Vol. 2, §400,

at 510.

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[Vol. 111:101

and “proceedings.” 118 The former included property rights and rights of action,
while the latter principally referred to common-law rules of evidence. 119
Twentieth century commentators were no more enamored with the
Derogation Canon. 120 Roscoe Pound, writing in 1908, recognized its
obsolescence and its grounding in an era of judicial supremacy. He defended it
in limited application, say to guide courts away from giving a statute an
interpretation that would make it unconstitutional. 121 Beyond that, he wrote “it
is without excuse and is merely an incident of the general attitude of courts
toward legislation.” 122 From Pound’s perspective, its survival was rooted in
“judicial jealousy of the reform movement; and . . . it is wholly inapplicable to
and out of place in American law of today.” 123


See id. at 510-13.


See id.


See also Sinclair, supra note 25, at 939-40 (describing weakening of support for canon since

the turn of the 20th century).

Pound, supra note 19, at 387.




Id. at 388; see also Charles D. Breitel, The Lawmakers, 65 COLUM. L. REV. 749, 772 (1965)

(describing common law as “based on reasoning and presupposes . . . that its determinations are justified
only when explained or explainable in reason.”); Daniel A. Farber & Philip P. Frickey, In the Shadow
of the Legislature: The Common Law in the Age of the New Public Law, 89 MICH. L. REV. 875, 875
(1991) (“A century ago, statutes were considered intrusions into the pristine order of the common law”);
Thomas C. Grey, Langdell’s Orthodoxy, 45 U. PITT. L. REV. 1, 33-35 (1983) (discussing “conservative”
position of judges between 1870 to 1940 that “common law private rights were constitutionally

Electronic copy available at:




Pound observed that for centuries, Roman law recognized that written text
was the default, with common law “a mere makeshift to which men resorted for
want of enactment to prevent a failure of justice.” 124 According to Pound, judgemade law overtook this tradition in England around the seventeenth century, in
large part due to the relative “paucity” of legislation. 125 This, combined with the
tradition of judicial review for unconstitutionality in the United States led to a
conception of the statute as “something exceptional and more or less foreign to
the body of legal rules in which legislation had endeavored to insert it.” 126 In
Pound’s view, if the canon ever was justified, it was when the courts stood
between the individual and the Crown and “protected the individual from the
state when he required that protection.” 127 When deployed against legislation
enacted by popularly elected body, however, that justification was less
compelling. 128 And to the extent that modern authors have located in the canon
a notice-based justification for those who face new standards of liability, 129 it

protected against collective interference unless the legislation could be shown to be closely related to
the accepted police power goals of health, safety, or morals.”).

Pound, supra note 19, at 388-89.


Id. at 389.


Id. at 390.


Id. at 403-04.


Id.; see also Ernest Bruncken, The Common Law and Statutes, 29 YALE L. J. 516, 520

(1920) (suggesting that Derogation Canon was best understood as a direction that courts should readd
statutes as in pari materia with common-law principles).

Sinclair, supra note 25, at 939,

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[Vol. 111:101

would be difficult to conclude that state actors were deprived of that notice with
passage of the Reconstruction Acts.
Writing decades after Pound, shortly before Tenney was decided, Jefferson
B. Fordham and J. Russell Leach examined the Derogation Canon anew and
came to a similar conclusion as prior commentators. 130 Although Fordham and
Leach differed somewhat with Pound as to whether the canon was a uniquely
American construct, 131 they shared his view that it was indefensible as a general
matter. 132 As they observed, even if some common-law principles might
withstand scrutiny better than some statutory innovations, that does not establish
common law’s presumptive superiority to statutory law. 133 In short, over the
course of 150 years, commentators have cast doubt on the utility of the
Derogation Canon, particularly as applied to remedial statutes such as Section
B. The Derogation Canon in Nineteenth Century Caselaw
Critical commentary aside, the Derogation Canon was influential at times
in the nineteenth century. The United States Supreme Court first adverted to the
canon in 1797 in Brown v. Barry, 134 a case in which the defendant argued that a
claim on a debt, authorized by a Virginia statute passed in 1748, was not viable


Fordham & Leach, supra note 20, at 440.


Id. at 440-41.


Id, at 441-44 (reviewing and refuting justifications for Derogation Canon).




3 U.S. 365, 367–68 (1797).

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because the Virginia legislature had subsequently repealed the 1748 act. 135 The
Supreme Court’s resolution of this issue was complex, but turned in part on its
holding that a 1789 Virginia law should be construed strictly inasmuch as it was
“in derogation of the common law.” 136 The upshot was that, by giving the 1789
statute a limited construction, the Court held that the 1748 statute was still in
effect and therefore authorized the plaintiff’s claim. 137 Thus, from the outset, the
canon was used to amplify common-law claims, not common-law defenses.
A review of each and every Supreme Court decision 138 addressing the
Canon in the decades after Brown shows that the Canon occasionally was relied
upon in three categories of cases: (1) those involving novel procedural devices;
(2) those involving statutes that arguably interfered with common-law property
rights; and (3) those in which, as in Brown, a plaintiff sought to bring a commonlaw claim that the defendant argued had been displaced by a statute. 139 But none
of the case law leading up to and surrounding Reconstruction would have given




Id. at 367.




To unearth and synthesize every relevant decision, I searched Westlaw’s database of

Supreme Court opinions for different formulations of the Derogation Canon, including: (1) derogate! /s
“common law”; (2) “common law” /s default /p legislat!; and (3) presum! /s “common law” /p legislat!.

During this time period, courts defended common law in the criminal context as well,

objecting to a turn towards constitutions and statutes as if they “aboli[shed] . . . every rule of action
preceding it, and the commencing life anew, without the benefit of a single practical lesson of wisdom
derived from our predecessors, or even from ourselves,” State v. Danforth, 3 Conn. 112, 114 (1819)
(Hosmer, C.J.).

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[Vol. 111:101

legislators any indication that courts would sub silentio incorporate common-law
defenses into a newly created cause of action like Section 1983.
In the early nineteenth century, most cases applying the Canon fell into the
first category. For example, lawyers pressed the argument, without success, that
statutes authorizing so-called “summary proceedings” should be strictly
construed because they were in tension with common-law procedures that
provided for a more fulsome hearing. 140 The canon also was implicated in cases
concerning the process by which judgment was executed, 141 or the ability to
bring joint actions. 142 As procedural rules evolved, the court was confronted with
arguments that such rules, whether they be of evidence, 143 discovery, 144 or


See, e.g., Peyton v. Brooke, 7 U.S. 92, 96 (1805) (argument by counsel that canon applied

to procedure of summary proceeding by motion); Stuart v. Laird, 5 U.S. 299, 301–02 (1803) (argument
by counsel that canon applied to Virginia law providing summary remedy); Wilson v. Mason, 5 U.S. 45,
54 (1801) (argument by counsel that statute regarding summary proceeding should be strictly

Mitchell v. St. Maxent’s Lessee, 71 U.S. 237, 243–44 (1866) (applying canon in context of

execution of judgment).

Fullerton v. Bank of U.S., 26 U.S. 604, 607 (1828) (argument by counsel that canon applied

to ability to bring joint action “against several persons, on several distinct and dissimilar contracts”).

Moore v. United States, 91 U.S. 270, 273–74 (1875) (referring to common-law rules of

evidence); Smith v. United States, 30 U.S. 292, 300 (1831) (applying canon in context of rules of

Shutte v. Thompson, 82 U.S. 151, 161 (1872) (applying canon in context of discovery –

strictly construing statute regarding formalities necessary to take a deposition); Harris v. Wall, 48 U.S.
693, 704 (1849) (same); Bell v. Morrison, 26 U.S. 351, 355–56 (1828) (same).

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jurisdiction, 145 should be strictly construed when in derogation of common-law
rules. In some cases, these arguments held sway and in others they were
rejected, 146 but none of these cases concerned common-law defenses. The upshot
of these cases was that litigants could claim some legitimate reliance interest in
the expectation that common-law procedures would be followed. 147
Notwithstanding the occasional case in which the Derogation Canon held
sway, as statute law proliferated over the course of the nineteenth century, the
Supreme Court gave greater consideration to indications that legislators intended


Turner v. Fendall, 5 U.S. 117, 124 (1801) (argument by counsel regarding application of

canon in context of jurisdiction); Voorhees v. Jackson, ex dem. Bank of U.S., 35 U.S. 449, 458–59 (1836)
(argument by counsel that exercise of personal jurisdiction by attachment, being in derogation of
common law, should be strictly construed).

In Turner, for example, the Court rejected application of the canon, giving the statute a

reasonable construction even though it was “penal” and in derogation of the common law. 5 U.S. at 121.
In Gilpin v. Page, 85 U.S. 350 (1873), the canon was discussed in the context of service of process, with
the Court strictly construing a statute that authorized constructive service by publication in place of
personal service, because “every principle of justice exacts a strict and literal [compliance] with the
statutory provisions.” Id. at 369-70.

This could carry with it some implicit expectation that legislators will give clear and adequate

notice when they mean to displace the common law. See, e.g., Sinclair, supra note 25, at 939
(arguing that if Derogation Canon “has any continuing force, it is on its alternative justification,
the principle of notice.”). Given how sharply the Reconstruction Acts meant to displace existing
relationships between state actors and federal power, however, see infra notes 225-227, and how
broadly legislators understood Section 1983 to apply, see infra notes 247-250, state officers had
adequate notice that the Civil Rights Act of 1871 required adherence to constitutional norms.

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[Vol. 111:101

procedural innovation. In Metro. R. Co. v. Moore, 148 for example, the Court
considered the question whether newly enacted statutes reorganizing the courts
of the District of Columbia should be read to abrogate the prior practice in D.C.
prohibiting certain appeals from denials of motions to set aside a verdict as
against the weight of the evidence. The lower court had held that no appeal could
be brought because the practice in D.C. prior to the new act would have been to
dismiss for lack of jurisdiction an appeal of a denial of a motion based on
“insufficient evidence.” 149 The Supreme Court acknowledged that this had been
the practice in D.C. and Maryland prior to the reorganization of the D.C. Courts,
but found that the canon disapproving interpretations in derogation of commonlaw principles was inappropriate because (1) Congress had meant to introduce
into D.C. a “new organization of its judicial system” modeled on New York’s
judiciary and (2) therefore Congress meant to adopt the laws of New York with
respect to this question, which would permit the appeal. 150 By 1887, then, the
Supreme Court accepted that legislatures could innovate in contravention of
common law expectations about procedure.
The second category of cases in which the Derogation Canon played a role
implicated reliance interests more directly: those involving common-law
property rights and their interaction with statutory innovations. One of the first
cases to rely on the canon in this way was the 1812 decision in Fairfax’s Devisee


121 U.S. 558 (1887).


Id. at 564.


Id. at 570-72.

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v. Hunter’s Lessee, 151 in which the Court held that a Virginia statute should not
be read to extinguish a common-law claim to title in real property. The most
odious of these cases is Prigg v. Pennsylvania, in which the Court held
unconstitutional a Pennsylvania law prohibiting enslaved people from being
taken out of the state and returned into slavery. 152 Although the opinion focused
on the effect of the Fugitive Slave Act of 1793 and the Constitution’s Fugitive
Slave Clause, the Court also adverted to the common-law right of a slaveowner
to seek a remedy for the “wrongful[]” detention of enslaved people. 153 But even
in less significant cases, counsel argued that statutes implicating property rights
should be strictly construed. 154
These first two categories of cases were the ones that occupied the field for
the vast majority of the nineteenth century. Prior to Reconstruction, the Court
also invoked the canon, though rarely, in a third kind of case which also
implicated reliance interests: those in which a statute interfaced with common-


11 U.S. 603, 622–23 (1812).


41 U.S. 539 (1842).


Id. at 613. It is noteworthy that Pennsylvania’s Attorney General argued in vain that the

slave states’ summary proceedings authorizing recapture of enslaved people should be strictly construed
as in derogation of the common law. Id. at 600 (argument by counsel).

McCool v. Smith, 66 U.S. 459, 470–71 (1861) (applying canon in context of validity of title

necessary for commencement of ejectment action); Wheaton v. Peters, 33 U.S. 591, 599 (1834)
(argument by counsel that constitutional provision which takes away a “private right” or property should
be strictly construed); Clarke’s Lessee v. Courtney, 30 U.S. 319, 329–30 (1831) (argument by counsel
that canon should apply to statute regarding relinquishing title to land to the commonwealth).

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[Vol. 111:101

law rights of action. During this time the Court never even hinted, let alone held,
that common-law defenses are incorporated into statutory causes of action absent
express legislative direction to the contrary. Indeed, though not concerning an
affirmative defense, United States v. Stansbury 155 is an early example of the
Court declining to incorporate a common-law barrier to relief even where
Congress was silent on the issue. The case involved an action of debt brought by
the United States against the debtor and his two sureties. The United States had
agreed to release the debtor from prison pursuant to a statute that authorized the
Treasury to discharge a debtor from imprisonment upon receiving a conveyance
of the debtor’s estate for the benefit of the United States. 156 At common law, the
voluntary release of a debtor from custody constituted a release of the judgment
itself, meaning that a creditor could not seek a remedy from the surety of the
released debtor. 157 The sureties in Stansbury argued that, given that the United
States had voluntarily released the creditor from custody, as a matter of common
law the government was barred from proceeding against the sureties. 158 The
Court rejected that argument because the statute’s language made clear that its
purpose was to discharge the debtor from custody, with the judgment against the
debtor to remain valid and capable of being satisfied in the future. 159 That the


26 U.S. 573 (1828).


Id. at 575.






Id. at 575-76.

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statute was silent as to the common law’s treatment of sureties was of no
moment, especially because the common-law rule was “occasioned by a
technical rule, originating in remote ages; which has never been applied to a
statutory discharge of the person.” 160
While one can find stray comments in the Court’s decisions about not
presuming that a statute makes “any alteration in the common law, further or
otherwise, than the act expressly declares,” these did not arise in the context of
common-law defenses but in the context of claims or rights that existed at
common law. The Supreme Court’s 1834 decision in Wheaton v. Peters, 161 is to
this effect, in which the Court rejected the argument that a statute had any
discernable impact on a common-law right. This is the context in which its
general language that “[s]statutes are not presumed to make any alteration in the
common law, further or otherwise, than the act expressly declares.” 162 The Court
was unwilling to read a statute to “restrain” a “thing” (which the Court described
interchangeably as a right) that exists at common law absent express language. 163
This rationale lines up with the case law of the time, in that it recognized the
reliance interests implicated when a statute interferes with a res, be it property


Id. at 575.


33 U.S. 591, 692 (1834).





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[Vol. 111:101

or a cause of action. 164 Defenses, by contrast, were not conceived of as “rights”
deserving of protection from derogation. 165
In late nineteenth century cases, arising both during and after
Reconstruction, the Supreme Court’s Derogation Canon cases increasingly arose
in this third setting: those involving the relationship between statutes and
common-law rights of action. The issue usually presented in either of two forms:
cases in which a defendant alleged that a statute had operated to displace a
common-law claim; or cases in which the parties were grappling with how to
interpret statutes that created remedies and rights of action.
As to the first, the Court relied on the canon to generally preserve common
law claims for relief, in the absence of express words to the contrary in the
statute. 166 Illustrative of the approach to common-law rights is Meister v.


Modern due process cases are consistent with this insight, inasmuch as the Court has

explicitly recognized that a “cause of action is a species of property protected by the Fourteenth
Amendment’s Due Process Clause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (citing
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)).

See, e.g., Shearman & Redfield, supra note 114, §300, at 367-68 (arguing that wrongful

death statutes which provided a remedy for instantaneous death did not run afoul of derogation canon
because they were not in derogation of a claim, even though at common law the immediacy of death
would have been a defense against the claim); Murphy v. New York & N.H.R. Co., 30 Conn. 184, 188

The Main v. Williams, 152 U.S. 122, 132–33 (1894) (holding that statutes should be

construed to derogate the rights of claimants as little as possible and holding that, in the absence of
express words to the contrary, statute would not be construed to limit shipowner’s right to damages).

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Moore, 167 where the Court held that a marriage was valid even though it was not
solemnized before a minister or magistrate, as provided by Michigan law. The
Court noted that at common law, marriage is a contract that can be formed “per
verba de prasenti,” 168 and that if a statute is to “take away a common-law right,”
it must do by plain expression. 169 On the Court’s view, a statute that merely
directs marriages to be performed in the presence of certain people should not be
construed to be a declaration that no marriage is valid unless performed in this
way. 170
In 1879, the Supreme Court applied the canon along the same lines in the
context of the rights against misappropriation of personal property, other than
money. 171 In Shaw, the statute in question had made bills of lading negotiable in
the same manner as bills of exchange. One of the parties maintained that this
abrogated common-law rights of action for misappropriation of personal
property, such that a purchaser of a bill of lading for cotton had a right to the
cotton even if the purchaser had reason to believe that the seller of the bill of
lading did not have a right to sell it (in the actual case, the bill of lading had been


96 U.S. 76 (1877).


Loosely translated as by means of “words of present assent.” Id. at 79.


Id. at 78-79.


Id. (“A statute may declare that no marriages shall be valid unless they are solemnized in a

prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to
be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or
publication of banns, or be attested by witnesses.”).

Shaw v. Merchants’ Nat. Bank, 101 U.S. 557, 565–66 (1879).

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[Vol. 111:101

stolen from the bank which was the legitimate holder of the bill of lading). 172
But the Court rejected that contention based on the canon, holding that simply
because the statute treated bills of exchange the same as bills of lading for the
purposes of being negotiable in a similar manner, that does not mean that it meant
they were to be treated the same for all other purposes (namely rights that arose
out of misappropriation). 173
Cases like Shaw and Meister are consistent with the pre-1871 case law
involving statutory displacement of common-law rights or property interests.
While they signify the Supreme Court’s concern that statutes not unduly
undermine preexisting rights, they do not speak to the Derogation Canon’s
relevance to common-law defenses, which did not implicate reliance interests.
As the Supreme Court explained in 1885, when it held that a statute of limitations
defense was not a “property” right protected by the Fourteenth Amendment, even
if the “most liberal extension” of the meaning of property could include “choses
in action” or “incorporeal rights,” it could not encompass a defense to pay a
judgment. 174
Cases of the second sort, involving the relationship between statutes and
the common law where a statute created a new type of right for enforcement,
initially vacillated between the canon that remedial statutes should be broadly


Id. at 560-61 (summarizing argument of counsel)




Campbell v. Holt, 115 U.S. 620, 629 (1885) (“We are unable to see how a man can be said

to have property in the bar of the statute as a defense to his promise to pay.”) (emphasis in original).

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construed and the canon that statutes that enforce a right unknown at common
law should be “followed with strictness.” 175 An example of such strict
construction can be found in Ross v. Jones. 176 There the Court applied the canon
in the context of remedies against indorsers of a negotiable instrument, noting
that “Remedies of a statutory character, where the right to be enforced was
unknown at the common law, are to be followed with strictness, both as to the
methods to be pursued and the cases to which they are to be applied.” 177 Ross’s
logic could arguably apply to Section 1983, given that it created a right unknown
at common law, but nothing in Ross suggested that strictly construing a statutory
right encompasses incorporating common-law defenses. Fifteen years after Ross,
however, the Court adopted a more liberal frame in interpreting remedial
statutes, stating the “rule [that] though it may be in derogation of the common
law, . . . everything is to be done in advancement of the remedy that can be done
consistently with any fair construction that can be put upon it.” 178


Ross v. Jones, 89 U.S. 576, 591(1874); Prather v. Reeve, 23 Kan. 627, 629 (1880)(“When

a statute creates a liability, and gives a right not known to the common law, such statute at the same time
giving a specific mode for the assertion of the right, as a rule that mode, and that alone must be
pursued.”); Lease v. Vance, 28 Iowa 509, 511 (1870) (interpreting statute concerning obligations to erect
maintain or contribute to a partition fence). For a discussion of the tension between the Derogation
Canon and the canon that remedial statutes should be broadly construed, see sources cited at supra note

89 U.S. 576 (1874),


Id. at 591-92.


White v. Cotzhausen, 129 U.S. 329, 341–42 (1889) (construing statute concerning

assignment of property to creditors) (quoting Railroad Co. v. Dunn, 52 Ill. 260, 263 (Ill. 1869)).

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[Vol. 111:101

Section 1983 would appear to be secure in its status as a “remedial” statute,
meant to be construed broadly. As Sinclair summarized the relevant
jurisprudence, “[i]f the statute is seen not as imposing a restriction or right or
duty on the common law, but as fixing it to cover a new situation or an otherwise
unforeseen problem, then it is remedial.” 179 Construing remedial statutes
liberally meant, in Sutherland’s words, “to give effect to it according to the
intention of the law-maker, as indicated by its terms and purposes.” 180 Section
1983 was enacted as part of a transformative moment in the United States, hardly
an example of reinscribing common-law principles. 181
To sum up, the Supreme Court’s use of the Derogation Canon up until and
contemporaneously with the Reconstruction Congress betrayed no suggestion
that common-law defenses would be incorporated into new statutory causes of
action, absent express legislative direction to the contrary. If we take seriously
the Court’s declaration that its interpretation of Section 1983 is guided by the


Sinclair, supra note 25, at 943.


Sutherland, supra note 117, § 415, at 531; Gibson v. Jenney, 15 Mass. 205, 206 (1818)

(adverting to Derogation Canon but deciding that purpose of the statute--to protect the very poor by
allowing a family one cow and one swine exempt from process--would not be served if the family could
not eat their slaughtered pig).

Sinclair, supra note 25, at 946: “whether a judge applies Thrust #2 [derogation canon] or

Parry #2 [remedial canon] depends very greatly on whether the judge sees the statute as solving a
problem in the common law or imposing legislatively upon it.”

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understanding of the Reconstruction Congress when it enacted the statute, 182 it
follows that legislators at the time would not have expected the Derogation
Canon to apply to Section 1983.
C. The Derogation Canon from the Twentieth Century to the Present
Even after Reconstruction, the Derogation Canon has rarely worked to limit
the reach of statutory causes of action, other than in the context of Section 1983.
Carrying through nineteenth century principles, the Court has expressed
particular reluctance to rely on the canon in cases involving remedial statutes
like Section 1983. 183 In the context of legislation in aid of seamen, for example,
the Court referenced the canon but then said that remedial legislation should be
interpreted so as to “effect its purpose . . . to improve the lot of seamen.” 184 The
Court struck a similar tone in broadly interpreting a statute providing remedies
to a railway worker, arguably in derogation of the common law, because the


Writing in dissent, Justice Rehnquist explained that the Court had looked to state court

decisions at the time Section 1983 was enacted because “[m]embers of the 42d Congress were lawyers,
familiar with the law of their time. In resolving ambiguities in the enactments of that Congress, as with
other Congresses, it is useful to consider the legal principles and rules that shaped the thinking of its
Members.” Smith v. Wade, 461 U.S. 30, 65–66 (1983) (Rehnquist, J., dissenting).

Justice Douglas made reference to this principle when he dissented in Pierson. Pierson v.

Ray, 386 U.S. 547, 561 & n.1 (1967) (Douglas, J., dissenting)

Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782–84 (1952); see also Aguilar v. Standard Oil

Co., 318 U.S. 724, 728-29 (1943) (“The legislation therefore gives no ground for making inferences
adverse to the seaman or restrictive of his rights.”).

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[Vol. 111:101

statute indicated an intent by Congress to change existing law and it was remedial
in nature and therefore entitled to a broad construction. 185
Of course, the Court has sometimes had to resolve tension between the
Derogation Canon and the need to effectuate legislative intent to change policy,
but in line with nineteenth century case law this has arisen in the context of
concerns about abrogating common-law claims, not defenses. Thus, the canon
has been applied to salvage common-law rights of action in a broad range of
claims, from eminent domain, 186 to agent liability, 187 negligence, 188 and
excessive charges. 189
The Court also has had occasion to decide a slightly different question:
namely whether to interpret a statute to create a cause of action that had been


Johnson v. Southern Pac. Co., 196 U.S. 1, 16-19 (1904); see also Jamison v. Encarnacion,

281 U.S. 635, 640 (1930) (“The rule that statutes in derogation of the common law are to be strictly
construed does not require such an adherence to the letter as would defeat an obvious legislative purpose
or lessen the scope plainly intended to be given to the measure.”).

Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Virginia, 464

U.S. 30, 35–36 (1983) (applying canon to determining whether statute had displaced common-law
elements of eminent domain claim).

Robert C. Herd & Co. v. Krawill Mach. Corp., 359 U.S. 297, 304–09 (1959) (rejecting the

argument that two federal statutes should be interpreted to limit the common-law right of action against
an agent for his negligence).

Norfolk S. R. Co. v. Chatman, 244 U.S. 276, 279-81 (1917) (summarizing “settled rule of

policy” in favor of common-law negligence action).

Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 436–37 (1907) (invoking canon

to preserve cause of action for excessive charges for cotton seed).

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expressly rejected under the common law. Here, too, the Court has taken a
similar approach to the question of whether statutes should be read to abrogate
common-law rights: read the statute closely for an indication whether the
legislature intended to create a new right of action. In City of Detroit v.
Osborne, 190 the court confronted a case in which the plaintiff argued that there
was a right of action against Detroit for failure to properly maintain a sidewalk.
No common-law right had ever been recognized in Michigan for any liability
arising from the government’s failure to properly maintain streets and the like,
but in 1879, an act was passed which permitted claims for damages for defective
highways, streets, bridges, crosswalks, and culverts. The plaintiff argued that this
statute should be construed to permit a cause of action for defective sidewalks,
but the Court held that “a statutory liability created in derogation to common law
cannot be enlarged by construction.” 191 The Court also noted that because the
act omitted sidewalks, it “left the law in respect to sidewalks not in repair as it
was before.” 192 The Court took a similar approach in interpreting a statute


135 U.S. 492, 495–96 (1890).


Id. at 495-96 (cleaned up).



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creating stockholder liability. 193 State courts also made use of the canon in this
way. 194
By contrast, there are very few cases, other than those involving immunities
and Section 1983, in which the Court even considered the argument that a
common-law defense must be incorporated to be available as part of a new
statutory enforcement scheme. 195 And when the Court has taken up the question


Brunswick Terminal Co. v. Nat’l Bank of Baltimore, 192 U.S. 386, 388–90 (1904) (applying

canon to narrowly construe a statute regarding liability of a stockholder); see also Michigan Cent. R.
Co. v. Vreeland, 227 U.S. 59, 63–74 (1913) (holding that where Congress legislates pursuant to its
enumerated power it displaces state limitations on common-law tort liability).

Devers v. City of Scranton, 161 A. 540 (Pa. 1932) (applying canon in context of claim for

damages for negligence in operation of city fire truck).

For these purposes, I have omitted discussion of application of the canon in criminal cases,

in which the Derogation Canon functions like a cousin to the rule of lenity. H. Hackfeld & Co. v. United
States, 197 U.S. 442, 450–53 (1905) (describing the “well known rule” that penal statutes are to be
strictly construed in favor of the accused); In re Swan, 150 U.S. 637, 649 (1893) (in habeas corpus
action, describing exercise of authority to seize liquors without a warrant as in derogation of a commonlaw right, and therefore to be exercised only “where it is clearly authorized by the statute or rule of law
which warrants it.”). In United States v. Sanges, for example, the Court applied it in favor of a defendant
in a criminal case, holding that it would not interpret a statute conferring appellate jurisdiction to confer
upon the United States the right to appeal a criminal case “after judgment below in favor of the
defendant.” 144 U.S. 310, 323 (1892) (“It is impossible to presume an intention on the part of congress
to make so serious and far-reaching an innovation in the criminal jurisprudence of the United States.”).
The Court based its decision on the long common law tradition, both from England and the several
states. Id. at 311–12. And in Bell v. State of Maryland, 378 U.S. 226 (1964), the Court held that there
was a “substantial possibility” that Maryland’s highest court would apply the common-law presumption

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it has not applied a presumption in favor of the common law. In Isbrandtsen Co.
v. Johnson, 196 for example, decided 15 years prior to Pierson, the Court rejected
the argument that a common-law set off defense was available against a
seaman’s claim for earned wages. The defense was not “prescribed, recognized
or permitted” by federal maritime legislation which, because it was remedial in
nature, had to be construed liberally in favor of the seamen it was designed to
protect. 197 In so doing the Court recognized the Derogation Canon but also held
that it had no force in remedial legislation. 198
To the same effect, in United States v. Gilman 199 the Court rejected
application of common-law indemnification rules in the Federal Tort Claims Act
(“FTCA”) context. In Gilman, the United States sought to recover from its
employee liability the Government had paid to a tort victim pursuant to the

in favor of reversing pending criminal charges upon the legislative abolition of a crime, notwithstanding
a general savings clause that might be read in tension with the common-law rule, because of the
Derogation Canon. Id. at 232-34 (remanding to state’s highest court to decide whether common-law
presumption should be overcome). That said, even in the criminal context, common law defenses are
unavailable where the Court determines that legislation “leave[s] no doubt” that the defense is
inapplicable. See United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 491-95 (2001)
(holding that necessity defense is unavailable in prosecution under Controlled Substances Act).

343 U.S. 779 (1952).


Id. at 781-82.


Id. at 783 (“Marine legislation, at least since the Shipping Commissioners Act of June 7,

1872, 17 Stat. 262, should be construed to make effective its design to change the general maritime law
so as to improve the lot of seamen.”).

347 U.S. 507 (1954).

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FTCA. The Government argued that at common law, an employer could seek to
be indemnified when its employee’s wrongdoing leads to tort liability. 200 And
because the FTCA makes the Government liable as if it were a private party, the
government reasoned, the common-law rule of indemnity should apply the same
to the United States as to a private party. The Court rejected this argument,
holding that the question implicated fiscal policy, employee morale, and
efficiency, counseling in favor of having Congress address the issue explicitly
through legislation. 201
There are a few twentieth century examples in which the Court held that
the common law applied to bar a statutory action, but they are not comparable to
the importation of common-law defenses into Section 1983. In one the Court was
asked to construe a statute that gave married women the right to sue, separately
from their husbands, for breach of contract, protection of property, and to recover
injuries for torts committed against them, “as fully as if they were unmarried.”202
The question for the Court was whether this statute abrogated the common-law
bar against women suing their husbands for assault and battery. The Court
reasoned that had the legislature wished to make such a “radical” intrusion on


Id. at 508-09.


Id. at 511-12 (“The selection of that policy which is most advantageous to the whole . . . is

more appropriately for those who write the laws, rather than for those who interpret them.”).

Thompson v. Thompson, 218 U.S. 611, 615-16 (1910). The statute at issue in Thompson was

an example of the Married Women’s Property Acts that numerous jurisdictions enacted beginning in the
middle of the nineteenth century. See generally Richard H. Chused, Married Women’s Property Law:
1800-1850, 71 GEO. L. J. 1359, 1397-1412 (1983) (describing adoption of laws).

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the common law it would have been explicit. 203 Even if one reads Thompson as
relating to a common-law immunity defense, 204 it did not involve interpretation
of a statute like Section 1983 that created a new cause of action. 205 Slightly more
germane, in the intellectual property context, the Court held that Congress
intended to retain the “first sale” defense in copyright statutes based in part on
that common-law doctrine’s “impeccable historic pedigree.” 206 But the Court
reached this conclusion after first considering the statute’s text and evidence of
legislative intent – the common law status of the good faith defense was relied
upon only to confirm the Court’s reading of the text and legislative history. 207


Thompson, 218 U.S. at 618. State courts addressed the relevance of similar statutes as well,

often to different effect. In 1920, the South Carolina Supreme Court, in Prosser v. Prosser, 102 S.E. 787
(S.C. 1920), relied primarily on the state’s code of civil procedure to provide a battered wife a tort
remedy against her husband, but also cited to the Married Women’s Property Act. Id. at 788. (“More
than this, a wife has a right in her person; and a suit for a wrong to her person is a thing in action; and a
thing in action is property, and her property.”)

Carl Tobias has described the Thompson decision in this way. See Carl Tobias, Interspousal

Tort Immunity in America, 23 GA. L. REV. 359, 399 (1989). But as one contemporaneous treatise
suggested, the Married Women’s statutes were viewed by many courts as interfering with a husband’s
common-law property rights. Sutherland, supra note 117, § 400, at 511-12.

218 U.S. at 615-16 (describing statute that gave married women the right to sue and be sued).


Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 538-39 (2013).


This is consistent with one case referenced in Sutherland’s 1891 treatise in which the court

held that a common-law defense was not abrogated by statute, but in that case the statute specifically
prohibited the defense for an action of trespass on the case but not for a different form of action – the
court acknowledged that the defense was not available for the former but declined to interpret the statute

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More typical is the Court’s decision in SCA Hygiene Prod. Aktiebolag v.
First Quality Baby Prod., LLC, which rejected application of a laches defense to
a patent infringement claim brought within the statutory limitations period under
the Patent Act. 208 The Court entertained the defendant’s argument that some prePatent Act cases in lower federal courts recognized, in dictum, the possibility
that laches could be a defense against a damages action for infringement. 209 But
it rejected the argument because it held that by setting a specific limitations
period Congress had made a determination that laches should not apply, 210 and
that even assuming arguendo that Congress legislated with common law in the
background, the weight of common law authority was that laches did not apply
to damages claims. 211
Other recent cases also suggest the Court’s misadventure in Pierson. The
Court has emphasized that if the Derogation Canon has any meaning it is in areas
of law where a statute “clearly covers a field formerly governed by the common
law.” 212 It has held that even where there is overlap between statutory coverage
and the common law, say in RICO claims and common-law fraud claims, there
is no presumption that common-law limitations should apply to newly created

as applying to the latter form of action. Melody v. Reab, 4 Mass. 471, 473 (1808) (cited in Sutherland,
supra note 117, § 400, at 511 n.2).

137 S. Ct. 954, 965 (2017),


Id. at 963-65.


Id. at 961.


Id. at 966.


Samantar v. Yousuf, 560 U.S. 305, 320 (2010).

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statutory causes of action. 213 The Court has found that Congress’s intent, not just
its words, can displace common-law doctrines of preclusion. 214 And it has held
that the Derogation Canon is most concerned with common-law rights, not
defenses. 215 When it has relied on the canon to incorporate common-law doctrine
outside of common-law claims, its cases have concerned not defenses but issues


Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 652 (2008) (holding that RICO

plaintiff asserting fraud need not show reliance even though reliance was necessary for common-law
fraud claims); see also Stoneridge Investment Partners, LLC v. Scientific–Atlanta, Inc., 552 U.S. 148,
162 (2008) (rejecting the argument that § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. §
78j(b), incorporates common-law fraud).

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 110 (1991) (rejecting application

of common law of preclusion for administrative agency determinations because doing so would be
inconsistent with Congress’ intent).

United States v. Texas, 507 U.S. 529, 534 (1993) (applying canon to preserve Federal

government’s common-law right to collect prejudgment interest on debts owed to it by the States);
Midlantic Nat. Bank v. New Jersey Dep’t of Env’t Prot., 474 U.S. 494, 501 (1986) (holding that Congress
did not implicitly abrogate common-law limitations on bankruptcy trustee’s abandonment power).

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such as fee-shifting, 216 equitable tolling, 217 causation, 218 the availability of
punitive damages, 219 and the scope of coverage of statutory rights. 220 What these
cases have in common is that they all relate to the remedial scope and claim
construction of statutory rights.
At the same time, the Court has broadly enforced causes of action when—
as with Section 1983 – legislation expressly creates them, even when the action


Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. 121, 126-27 (2015) (discussing cases

applying canon to narrowly construe fee-shifting provision, where common-law default was “American
Rule”); Fogerty v. Fantasy, 510 U.S. 517 (1994) (same).

Lozano v. Montoya Alvarez, 572 U.S. 1, 10-11 (2014) (Discussing canon in context of

equitable tolling and holding that presumption is that Congress intends for ET to apply to federal
statutory claims). To be sure, although equitable tolling doctrine is related to a statute of limitations
defense, it presents an opportunity for a plaintiff to overcome a statute of limitations bar. See, e.g., Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005) (describing general requirements for showing entitlement to
equitable tolling). As such, like the other areas in which the Derogation Canon has been applied by the
Court, it offers a way of preserving a common-law right to seek relief.

Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020)

(“This ancient and simple ‘but for’ common law causation test, we have held, supplies the ‘default’ or
‘background’ rule against which Congress is normally presumed to have legislated when creating its
own new causes of action.”)

Atl. Sounding Co. v. Townsend, 557 U.S. 404, 424–25 (2009) (finding that punitive damages

are available for general maritime law because they “have long been an accepted remedy under general
maritime law, and because nothing in the Jones Act altered this understanding . . . “)

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 n.5 (2014)

(discussing common-law roots of “zone-of-interest[s]” requirement for bringing claims for negligence
for injuries caused by statutory violations).

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would not exist at common law. This is how the Court approached the issue in
two turn-of-the-century cases concerning the duty of railroads to their
employees. The Court recognized that, where Congress was “not satisfied with
the common-law duty and its resulting liability,” it could prescribe a new duty
by statute. 221 With this new statutory duty, the Court stated that it “need not enter
into the wilderness of cases upon the common-law duty of the employer to use
reasonable care to furnish his employee reasonably safe tools, machinery, and
appliances, or consider when and how far that duty may be performed by
delegating it to suitable persons for whose default the employer is not
responsible” because the statute, making no mention of these limitations, created
an absolute liability. 222
Consistent with this approach to statutory interpretation, the Court has
given Section 1983 and other Reconstruction-era law a broad reading in contexts
outside of immunity. In Griffin v. Breckenridge, 223 the Supreme Court read
Section 1985(3) as applying to private persons because of the meaning of the
words “[o]n their face,” notwithstanding the common understanding that the
Fourteenth Amendment reached only state action. 224 In so doing, the Court noted


St. Louis, I.M. & S. Ry. Co. v. Taylor, 210 U.S. 281, 294 (1908); see also Chicago, B. & Q.

Ry. Co. v. United States, 220 U.S. 559, 574 (1911).

Taylor, 210 U.S. at 294 (“There is no escape from the meaning of these words. Explanation

cannot clarify them, and ought not to be employed to confuse them or lessen their significance.”);
Chicago, B & Q. Ry. Co., 220 U.S. at 574.

403 U.S. 88 (1971).


Id. at 96 (noting that “going in disguise” is not typically associated with state actors).

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that its approach with other Reconstruction-era civil rights laws had been to
“accord them a sweep as broad as their language.” 225
The Court also has made clear that it views Section 1983 as marking a break
with prior law. The Court has spoken of Section 1983 as part of “the basic
alteration in our federal system wrought in the Reconstruction era” and a
“uniquely federal remedy against incursions under the claimed authority of state
law upon rights secured by the Constitution.” 226 The Court read the legislative
history of Section 1983 as indicating a desire to protect federally created rights
against state hostility, including state court hostility. 227 This was the “very
purpose” of Section 1983. 228


Id. at 97 (cleaned up); cf. United States v. Price, 383 U.S. 787, 803–04 (1966) (broadly

construing criminal provisions of Civil Rights Act of 1866).

Mitchum v. Foster, 407 U.S. 225, 238–39 (1972).


Id. at 242.


Id. Of course, the Court has not read the Reconstruction Acts broadly in every context. In

the 19th Century, the Slaughterhouse Cases, 83 U.S. 36 (1873), and the Civil Rights Cases, 109 U.S. 3
(1883), undermined the impact of Thirteenth and Fourteenth Amendments as well as the Civil Rights
Acts. See Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. REV.
1297, 1329 (1994) (contrasting promise of Reconstruction Amendments against limitations imposed by
Court’s nineteenth century jurisprudence); Marianne L. Engelman Lado, A Question of A Question of
Justice: African-American Legal Perspectives on the 1883 Civil Rights Cases, 70 CHI.-KENT L. REV.
1123, 1124-25 (1995) (describing impact of Civil Rights Cases); David Lyons, Corrective Justice, Equal
Opportunity, and the Legacy of Slavery and Jim Crow, 84 B.U. L. REV. 1375, 1388 & n.69 (2004)
(discussing cases). More recently, along with the immunity doctrine discussed in this Article, the Court
has limited Section 1983’s application to federal statutory rights by only enforcing federal statutes with

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To sum up, the Derogation Canon has always stood on shaky footing. But
nothing in the Supreme Court’s use of the canon supports the direction taken by
Pierson and its progeny. Rather than amplifying common-law defenses, the
canon has almost always been concerned with protecting common-law claims or
rights. Moreover, where statutes explicitly create rights of action unknown at
common law, as with Section 1983, the Derogation Canon falls away. Whether
viewed through the current understanding of the canon’s role, or more
importantly, through the lens of a Reconstruction legislator, the fundamental
premise of the Supreme Court’s qualified immunity jurisprudence has no
The Supreme Court’s Section 1983 immunity jurisprudence has another
failing, however. For even if the Derogation Canon is viable and applicable to
remedial statutes like Section 1983, it is something of a clear statement rule:
common law should not be displaced by statute, absent explicit command by the
Legislature. But as I will show in this Part, the Civil Rights Act of 1871 did
explicitly abrogate common-law immunities. Although the relevant text was
never included in the codified version of Section 1983, that was a product of the

an implied cause of action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-94 (2002); Lisa E. Key, Private
Enforcement of Federal Funding Conditions Under § 1983: The Supreme Court’s Failure to Adhere to
the Doctrine of Separation of Powers, 29 U.C. DAVIS L. REV. 283, 351 (1996).

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[Vol. 111:101

first Reviser of the Federal Statutes’ unauthorized alteration of positive law when
he published the first version of the Revised Statutes in 1874. What’s more,
accounting for the original text of Section 1983 makes sense of the legislative
history and overall framework of the Civil Rights Act of 1871. The Court’s
flawed immunity jurisprudence only creates conflict with those elements of the
A. The Civil Rights Act of 1871’s Abrogation of Common-Law Defenses
The version of Section 1983 one finds in the United States Code appears
silent as to any common-law defenses:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . . 229
But the Civil Rights Act of 1871 as enacted contained additional significant
text, what I call the Notwithstanding Clause. In between the words “shall” and
“be liable,” it contained the following clause: “any such law, statute, ordinance,
regulation, custom, or usage of the State to the contrary notwithstanding.” 230


42 U.S.C. § 1983.


Civil Rights Act of 1871, ch.22, §1, 17 Stat. 13 (1871).

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And it is a fair inference that this clause meant to encompass state common-law
principles. 231 Senator Thurman, speaking in opposition to Section 1 of the 1871
Act (what is now Section 1983) clearly understood that “custom or usage” was
equivalent to “common law.” 232 In other words, the 1871 Congress created
liability for state actors who violate federal law, notwithstanding any state law
to the contrary. 233
Neither the Supreme Court nor its scholarly critics have ever grappled with
the significance of the Notwithstanding Clause. Its implications are
unambiguous: state law immunity doctrine, however framed, has no place in
Section 1983. On its face, this directly undermines Pierson, which incorporated
a good faith immunity into Section 1983 based solely on Mississippi state law. 234


This, after all, was the basis for the Court’s overruling of Swift v. Tyson, 41 U.S. 1 (1842),

in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). See also Western Union Telegraph Co. v. Call Pub. Co.,
181 U.S. 92, 102 (1901) (citing Black’s Law Dictionary for proposition that common law springs from
“usages and customs”).

CONG. GLOBE, 42d Cong., 1st Sess., App. 217 (1871).


One also might think the Supremacy Clause would implicate qualified immunity when state

law common-law immunities are applied to bar Section 1983 relief. The Supreme Court has addressed
the potential conflict by pointing to the “special federal policy considerations” that support qualified
immunity. Some scholars, dissatisfied with this explanation, have offered a different account. See James
S. Liebman & William F. Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking
Required of Article III Courts, 98 COLUM. L. REV. 696, 858-61 (1998) (suggesting that Supremacy
Clause issues are not raised by qualified immunity because unconstitutional conduct by state officials is
not the equivalent of state “law” and thus does not threaten the supremacy of federal law).

Pierson, 365 U.S. at 557.

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Wood v. Strickland, which expanded Pierson’s qualified immunity to school
board officials, also leaned heavily on state common-law immunity doctrine. 235
This is not to say that every common-law immunity recognized during the
nineteenth century was a creature of state law. The Court’s opinion in Tenney,
for example, canvassed British tradition as well as federal and state constitutions
to conclude that legislative immunity was deeply enshrined in common law. 236
But the vast majority of immunity doctrine, to the extent it existed at all, was
sourced in state law, especially for the state actors who would be subjected to
Section 1983 liability. 237 To the extent the Reconstruction Congress even
contemplated that these defenses would apply to the Civil Rights Act of 1871,
the Notwithstanding Clause would have sufficed to assuage those concerns.


See 420 U.S. 308, 318-20 & nn.9 & 12 (1975) (collecting state court cases). It summarized

those sources as standing for the proposition that absolute immunity was not justified but that a qualified
immunity was appropriate. Id. at 320.

341 U.S. at 372-76.


See, e.g., Scott A. Keller, Qualified and Absolute Immunity at Common Law, 73 Stan. L.

Rev. 1337, 1368-75 (2021) (surveying Supreme Court doctrine, treatises, and state law supposedly
establishing qualified immunity). As Jim Pfander has shown, Keller’s treatment of the common-law
doctrine is significantly flawed, see Pfander, supra note 85, but even if one accepts Keller’s claims at
face value, the federal law he identified relates only to the immunity of federal officers. See Wilkes v.
Dinsman, 48 U.S. 89, 129 (1849) (claims against naval commander); Kendall v. Stokes, 44 U.S. 87, 98
(1845) (claims against federal Postmaster); Otis v. Watkins, 13 U.S. 339, 356 (1815) (concerning claims
against federal customs inspector); Keller, supra, at 1368-69 (discussing Otis, Kendall, and Wilkes). The
remainder of the sources Keller relies on for his claims all are based on state court decisions and treatises
summarizing state court decisions. Keller, supra, at 1369-75.

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Notably, the distinction between Section 1983 as enacted and as reflected
in the United States Code is not the product of any positive lawmaking. 238
Rather, the version of the statute we find on the shelves of any law library is the
product of a decision by the first Reviser of federal statutes to, for unclear
reasons, remove the italicized language when the first edition of the Revised
Statutes of the United States was published in 1874. 239 Although the Revised
Statutes were supplemented and corrected over time until the first United States
Code was published in 1926, 240 the Reviser’s error in omitting the


See Hague v. Comm. for Indus. Org., 307 U.S. 496, 510 (1939) (stating that Reviser’s

changes were “not intended to alter the scope” of Section 1983); REVISED STATUTES OF THE UNITED
STATES, Preface, at v (1878) (stating that Reviser had no authority to make substantive changes); An
act to Provide for the Preparation and Publication of a New Edition of the Revised Statutes of the United
States, 19 Stat. 268, ch. 82, §4 (1877), as amended by 20 Stat. 27, ch. 26 (1878) (stating that revised
statutes are considered “legal” evidence of laws, but not “conclusive”).

See REVISED STATUTES OF THE UNITED STATES Title XXIV, § 1979, at 348 (1874).

Because of complaints about the accuracy of the 1874 Revised Statutes, Congress authorized the
appointment of a new Reviser to prepare a second edition of the Revised Statutes, which was published
in 1878. See The Revised Statutes of the United States, LIBRARY OF CONGRESS, available at [](posted July 2, 2015). The 1878 version of the Revised Statutes
contained the same error as the 1874 version with respect to what we now know as Section 1983. See

See The Revised Statutes of the United States, LIBRARY OF CONGRESS, available at (posted July 2, 2015).

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Notwithstanding Clause from the reported version of the Civil Rights Act of
1871 was never corrected.
The many errors contained in the first version of the Revised Statutes
prompted consternation, but they nonetheless constitute “legal evidence” of
federal law. 241 Congress made clear that subsequent versions of the Revised
Statutes can be taken only as “prima facie” evidence of the law, which can be
rebutted by pointing to the originally-enacted version, unless Congress has
specifically adopted the codification as part of the laws of the United States. 242
Thus, generally speaking, when there is a conflict between the law as codified
and the Statutes at Large, the Statutes at Large control. 243 However, because the


See Will Tress, Lost Laws: What We Can’t Find in the U.S. Code, 40 GOLDEN GATE U. L.

REV. 129, 135 (2010).

See 1 U.S.C. § 204(a) (“The matter set forth in the edition of the Code of Laws of the United

States current at any time shall, together with the then current supplement, if any, establish prima facie
the laws of the United States, general and permanent in their nature, in force on the day preceding the
commencement of the session following the last session the legislation of which is included: Provided,
however, That whenever titles of such Code shall have been enacted into positive law the text thereof
shall be legal evidence of the laws therein contained, in all the courts of the United States, the several
States, and the Territories and insular possessions of the United States.”). Congress has enacted into
positive law some of the Titles in the United States Code, but not Title 42, contained Section 1983. See
Office of the Law Revision Counsel, United States Code,
[] (last visited July 15, 2021).

See U.S. Nat’l Bank of Oregon v. Indep. Insurance Agents of Am., Inc., 508 U.S. 439, 448

(1993) (“Though the appearance of a provision in the current edition of the United States Code is ‘prima
facie’ evidence that the provision has the force of law, it is the Statutes at Large that provides the legal

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first Revision, erroneous as it was, is not subject to this limitation, the
Notwithstanding Clause is not formally positive law, but still speaks powerfully
to Congress’s intent that any immunity grounded in state law have no application
to the cause of action we now know as Section 1983.
B. The Notwithstanding Clause and the Civil Rights Act of 1871’s History
and Structure
Taking account of the Notwithstanding Clause has another virtue -- it
provides a more coherent account of Section 1983 than the Supreme Court’s
immunity jurisprudence. Starting with legislative history, it is nearly impossible
to square the Supreme Court’s caselaw with contemporaneous statements made
by Reconstruction lawmakers. Even as to absolute judicial immunity, there is
overwhelming evidence supporting the view that members of Congress were
quite conscious of the fact that both the civil and criminal civil rights statutes

evidence of laws.”) (cleaned up); United States v. Welden, 377 U.S. 95, 98 n.4 (1964) (“[T]he very
meaning of prima facie is that the Code cannot prevail over the Statutes at Large when the two are
inconsistent.”) (cleaned up); Stephan v. United States, 319 U.S. 423, 426 (1943) (“[T]he Code cannot
prevail over the Statutes at Large when the two are inconsistent.”); see also Turner v. Glickman, 207
F.3d 419, 428 (7th Cir. 2000) (according no weight to placement of provision of Statutes at Large in
criminal code because decision was made by reviser); Preston v. Heckler, 734 F.2d 1359, 1367–69 (9th
Cir. 1984) (holding that Office of Law Revision Counsel erred in omitting as obsolete phrase “without
regard to civil-service laws” from codification of Indian Preference Act).

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[Vol. 111:101

would displace any judicial immunity. 244 As the plaintiffs in Pierson pointed out,
President Andrew Johnson vetoed the Civil Rights Act of 1866 in part because
it subjected state judges to criminal liability for civil rights violations; Congress
responded by reenacting the Act and specifically stating that judges may be
criminally liable. 245 And it is well accepted that the remedies provided in the
1871 Act were meant to work in tandem with the 1866 Act. 246
Notably, when Congress turned to debating the civil liability components
of the 1871 Civil Rights Act, opponents of Section 1983 liability explicitly
objected to its imposition of liability on judges and other state officials “for a
mere error of judgment.” 247 These opponents understood that officers who make


Br. For Petitioner, Pierson v. Ray, 23-24 (U.S. Oct. 10, 1966), available at 1966 WL 100720

(“All the members of Congress who spoke on the problem, explicitly stated that the section applied to
judges. None disagreed.”).

Id. at 24; Matasar, supra note 3, at 778 (noting that debate of 1866 Act explicitly focused on

lack of immunity for Civil Rights Act of 1866; proposals to mitigate liability for state officials were
rejected); CONG. GLOBE, 39th Cong., 1st Sess., 1679, 1780 (1866). Senator Trumbull, speaking in
support of overruling President Johnson’s veto of the 1866 Act, specifically stated that the concept of
immunity for judges and other officials was “akin to the maxim of the English law that the King can do
no wrong” and “is the very doctrine out of which the rebellion was hatched.” CONG. GLOBE, 39th Cong.,
1st Sess., 1758 (1866); see also id. 1778 (statement of Sen. Johnson); id. 1783 (statement of Sen.
Cowan); id. 1837 (Statement of Rep. Lawrence).

See, e.g., Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 684-85 (1978)

(discussing legislative history of 1871 Act).

See CONG. GLOBE, 42d Cong., 1st Sess. 365-66 (1871) (statement of Rep. Arthur)

(“Hitherto, in all the history of this country and of England, no judge or court has been held liable, civilly

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discretionary decisions would be held liable under Section 1983 notwithstanding
their good faith; that was precisely why they opposed it. 248 None of the
proponents spoke a word of assurance, leaving the implication that opponents
had accurately understood the legislation. 249 This history, in combination with
the absence of any language in Section 1983 regarding immunity, offers a strong

or criminally, for judicial acts, and the ministerial agents of the law have been covered by the same aegis
of exemption . . . Under the provisions of this section, every judge in the State court and every other
officer thereof, great or small, will enter upon and pursue the call of official duty with the sword of
Damocles suspended over him by a silken thread. . . .”); see also Matasar, supra note 3, at 771 (“The
Court’s assumption becomes even more doubtful, however, when the legislative debates of the
Reconstruction Congress are closely reviewed, because far from being silent about immunities, the
debates on both section 1983 and its criminal law predecessor are replete with statements of the
opponents of civil rights statutes that the legislation was overriding those immunities. Furthermore,
nothing in the legislative history is said to assuage the fears of these opponents. Thus, Congress was not
silent about immunities; it was only silent about retaining immunities.”).

See CONG. GLOBE, 42d Cong., 1st Sess. 385 (1871) (statement of Rep. Lewis) (“By the first

section, in certain cases, the judge of a State court, though acting under oath of office, is made liable to
a suit in the Federal court and subject to damages for his decision against a suitor, however honest and
conscientious that decision may be; and a ministerial officer is subject to the same pains and penalties,
though simply executing the process of a State court, about which he has no discretion, and the legality
of which he has no right to question.”).

Matasar, supra note 3, at 772 (stating that major speeches opposing Section 1983

“proceeded on the assumption that it would apply to all officials—legislators, judges, and executive
officers.”); id. at 772-75 (reviewing legislative history in which opposition lawmakers pointed out that
there was no good faith immunity in statute and no one reassured them).

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[Vol. 111:101

indication that Congress meant to abrogate all common-law immunities, even
without the Notwithstanding Clause. 250
Additionally, the legislative record is replete with evidence that supporters
of the Civil Rights Act did not trust state courts to protect constitutional rights. 251
Some of the very same people who served in the rebel army were also serving as
judges in southern states. 252 It would have been passing strange, then, for the
very same Congress to permit liability under Section 1983 to be limited by judgemade law created by state court judges. As Seth Kreimer has argued, given the
Civil Rights Act’s purpose to disarm a Confederate State judiciary hostile to
Reconstruction, “it seems unlikely that the local common law elaborated by the
very judiciary that the federal courts were designed to supersede was to be given
primacy.” 253 The Notwithstanding Clause thus both reflects and confirms the
1871 Civil Rights Act’s history and purpose.


Id. at 781 (looking to Section 1983 as codified and concluding that “Congress in 1871 meant

to abrogate all common law immunities and did so by the plain language of section 1983.”); see also
Achtenberg, supra note 4, at 502 (pointing out that Section 1983’s language does not support immunity
and that legislative history suggests that opponents interpreted Section 1983 as abrogating immunity).

See, e.g., CONG. GLOBE, 42d Cong., 1st Sess. 820, 227(1871) (Sen. Sherman referring to

“terror and violence” uncontrolled by magistrates); id. 394 (Rep. Rainey describing state courts as being
“under the control of those who are wholly inimical to the impartial administration of law and equity.”);
id. 429 (Rep. Beatty describing need for remedy because of “prejudiced juries and bribed judges”); id.
44 (Rep. Burchard describing denial of equal protection in states “judicial tribunals”).

Kenneth M. Stampp, THE ERA OF RECONSTRUCTION, 1865-1877, at 76 (1965).


Kreimer, supra note 85, at 617.

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This interpretation of Section 1983 had ample support in the courts, at least
for the first half of the 20th century, when it was common for courts to apply
Section 1983 free of any state law immunities. 254 Prior to Pierson and Tenney,
even the Supreme Court had affirmed damages awards against state officials on
multiple occasions without any mention of common-law immunity doctrine. 255
The Supreme Court’s 1961 decision in Monroe gave even more support to those
who would read Section 1983 as imposing liability notwithstanding any state law


Myers v. Anderson, 238 U.S. 368, 371, 380 (1915) (upholding damages action under Section

1983 against election officials without any discussion of good faith, although good faith was raised by
defendants); Cobb v. City of Malden, 202 F.2d 701, 705–06 (1st Cir. 1953) (Magruder, J., concurring)
(recognizing Section 1983’s “apparently sweeping and unqualified language”); Burt v. City of New York,
156 F.2d 791, 793 (2d Cir. 1946) (Hand, J.) (opining that Civil Rights Act did not include an immunity
defense and concluding that “so far as we can see, any public officer of a state, or of the United States,
will have to defend any action brought in a district court. . . . in which the plaintiff, however
irresponsible, is willing to make the necessary allegations.”); Picking v. Pennsylvania R. Co., 151 F.2d
240, 250 (3d Cir. 1945), overruled in part by Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966) (“But the
privilege as we have stated was a rule of the common law. Congress possessed the power to wipe it out.
We think that the conclusion is irresistible that Congress by enacting the Civil Rights Act sub judice
intended to abrogate the privilege to the extent indicated by that act and in fact did so.”).

Smith v. Allwright, 321 U.S. 649, 650–52 (1944) (claim involving voting rights brought

under Section 1983); Lane v. Wilson, 307 U.S. 268, 269 (1939) (Claim for $5,000 damages brought
under Section 1983 alleging discriminatory treatment resulting from electoral legislation of Oklahoma);
Nixon v. Herndon, 273 U.S. 536, 539–41 (1927); see also Caleb Foote, Tort Remedies for Police
Violations of Individual Rights, 39 MINN. L. REV. 493, 500-10 (1955) (discussing cases permitting
Fourth Amendment claims against police officers and noting that officers would not appear to be
protected by immunity for those claims).

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[Vol. 111:101

defenses. After all, as one post-Monroe opinion noted, if a state law immunity
displaced liability under Section 1983, it would be inconsistent with Monroe’s
basic holding that the availability or unavailability of state law remedies is
irrelevant to the relief afforded by federal law. 256
Excavating the Notwithstanding Clause also sheds additional light on the
relevance of 42 U.S.C. § 1988, which authorizes district courts to fills gaps in
the Civil Rights Act with state law under certain conditions. 257 Section 1988
provides authority to “look to principles of the common law, as altered by state
law, so long as such principles are not inconsistent with the Constitution and
laws of the United States.” 258 A state law will not be deemed “inconsistent” with
Section 1983’s broad remedial purpose simply because it interferes with a
remedy in a given case; it must be inconsistent in a more “general” way for the
Court to find that it is precluded by the exclusionary language of Section 1988. 259


Cohen v. Norris, 300 F.2d 24, 33–34 (9th Cir. 1962).


42 U.S.C. 1988; Robertson v. Wegmann, 436 U.S. 584, 592 n.11 (1978) (“[W]hatever the

value of nationwide uniformity in areas of civil rights enforcement where Congress has not spoken, in
the areas to which § 1988 is applicable Congress has provided direction, indicating that state law will
often provide the content of the federal remedial rule.”)

Moor v. Alameda County, 411 U.S. 693, 703 (1973).


Robertson, 436 U.S. at 590–94 (“If success of the § 1983 action were the only benchmark,

there would be no reason at all to look to state law, for the appropriate rule would then always be the
one favoring the plaintiff, and its source would be essentially irrelevant.”). In Robertson, the Court found
that Louisiana’s survivorship rule, under which certain causes of action abated with death, should be
applied in a Section 1983 action but cabined off situations “in which the particular application of state

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Section 1988 has been applied to determine what measure of damages to use, 260
what rules of survivorship apply, 261 which statutes of limitations to use – in short,
it instructs as to the choice of law in actions brought to enforce the substantive
provisions of the Civil Rights Act. 262 Some scholars have grappled with whether
Section 1988 gives courts authority to rely on a state’s common-law

survivorship law, while it may cause abatement of the action, has no independent adverse effect on the
policies underlying § 1983.” Id. at 594.

Smith v. Wade, 461 U.S. 30, 38–51 (1983) (canvassing state and federal common law to

determine standard for punitive damages under Section 1983 and noting that “Smith has not shown why
§ 1983 should give higher protection from punitive damages than ordinary tort law.”); see id. at 53-55
(looking to “ordinary tort law” to conclude that there is no rule that “the threshold for punitive damages
must always be higher than that for compensatory liability.”); Sullivan v. Little Hunting Park, 396 U.S.
229 (1969) (as to measure of damages, “both federal and state rules on damages may be utilized,
whichever better serves the policies expressed in the federal statutes . . . [T]he rule of damages, whether
drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is
impaired.”); see also William H. Theis, Shaw v. Garrison: Some Observations on 42 U.S.C. § 1988 and
Federal Common Law, 36 LA. L. REV. 681, 686-87 (1976) (arguing that state law resulting in greater
damages for Section 1983 cases should be applicable under Section 19888, because “Presumably, on
the issue of damages in civil rights cases, more is better.”).

Moor, 411 710 (“Although an injured party’s personal claim was extinguished at

common law upon the death of either the injured party himself or the alleged wrongdoer, see W. Prosser,
Torts 888—891 (4th ed. 1971), it has been held that pursuant to § 1988 state survivorship statutes which
reverse the common-law rule may be used in the context of actions brought under s 1983.”).

Id. at 705.

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[Vol. 111:101

immunity. 263 But the proviso in Section 1983 omitted by the Reviser answers the
question more directly – state law which imposes a barrier to Section 1983
liability was not meant to apply under the proviso; state law that makes Section
1983 more effective should be applied under Section 1988. 264 Because the
Supreme Court’s qualified immunity jurisprudence is and always has been
inconsistent with this teaching, it cannot be squared with the text, purpose, or
context of the Civil Rights Act of 1871. This is the case whether immunity
doctrine is the common-law version announced by the Court in Pierson or the
form adopted by the current Court, requiring that a plaintiff show a violation of
“clearly established law” to establish Section 1983 liability.


Theis, supra note 260, at 684-86 (1976); see also Coleman, supra note 6, at 693 (arguing

that Section 1988 should provide guidepost for interpreting Section 1983, meaning that federal law
should fill any gaps in Section 1983’s meaning, with the law of the State serving if there is no applicable
or suitable federal law, so long as state law is not inconsistent with Section 1983’s purposes). In the
context of immunity, Coleman argues that applying Section 1988 would mean that courts would first
determine whether any federal law of immunity existed before turning to state law; if state law abrogated
immunity this could be applied as consistent with Section 1983; if state law instead provided for absolute
immunity, this would be arguably inconsistent with federal law, requiring recourse to federal common
law. Id. at 733.

Kreimer, supra note 85, at 632 (arguing that state law that “augment the effectiveness” of

Section 1983 should be applied under Section 1988).

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Putting Section 1983 into interpretive context –thereby minimizing the
relevance of the Derogation Canon – and accounting for the enacted text of the
Civil Rights Act – thereby putting state law immunities on the sideline where the
Reconstruction Congress intended – has many significant implications. First,
unlike the scholarship and advocacy that urges the Supreme Court to read
Section 1983 as limited by the 1871 understanding of common-law immunities,
this Article shows that any such immunities have no place in Section 1983
litigation. This is decisive as to the good-faith immunity that has been
transformed into qualified immunity. To the extent that this immunity existed as
a creature of state law in 1871, the Reconstruction Congress made clear it has no
place in federal civil rights claims. 265 Moreover, Pierson itself relied only on
Mississippi state law to support a good-faith defense to Section 1983. 266 Thus,
Pierson was and always has been inconsistent with the Civil Rights Act of 1871.
Some might argue that even if state court opinions were the source of the
1871 version of an immunity defense, the “common law” was neither federal nor
state, in the era of Swift v. Tyson. 267 If so, the argument goes, the Notwithstanding
Clause is less relevant, because common-law immunities could exist


As to state actors, to the extent any immunity doctrine existed at common law in 1871, the

defense was sourced in state law. See supra note 239.

Pierson, 365 U.S. at 557.


Swift v. Tyson, 41 U.S. 1 (1842), overruled by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

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[Vol. 111:101

independent of whatever state law was abrogated by the Civil Rights Act of
1871. This argument overlooks the fact that even under Swift, there was a critical
distinction between “general” law, which knew no sovereign, and “local” or
customary law, which was considered state law. 268 Swift’s “general” law was
applied in cases involving commercial relations 269 or in tort cases involving


See Caleb Nelson, A Critical Guide to Erie Railroad v. Tompkins, 54 Wm. & Mary L. Rev.

921, 944-50 (2013).

Up until 1871, almost every case in which the Supreme Court cited to Swift involved a

commercial dispute. See Michigan Ins. Bank v. Eldred, 76 U.S. 544 (1869) (promissory note); Butz v.
City of Muscatine, 75 U.S. 575 (1869) (bonds); Bd. of Sup’rs of Marshall Cty. v. Schenck, 72 U.S. 772,
18 L. Ed. 556 (1866) (bond obligations); Murray v. Lardner, 69 U.S. 110 (1864) (commercial paper);
Jefferson Branch Bank v. Skelly, 66 U.S. 436 (1861) (Contract Clause); Bank of Pittsburgh v. Neal, 63
U.S. 96 (1859) (commercial paper); Goodman v. Simonds, 61 U.S. 343 (1857) (promissory notes);
Watson v. Tarpley, 59 U.S. 517 (1855) (bill of exchange); Brabston v. Gibson, 50 U.S. 263 (1850)
(promissory note); Prentice v. Zane’s Adm’r, 49 U.S. 470 (1850) (commercial paper); Nesmith v.
Sheldon, 48 U.S. 812 (1849) (corporate status); Cook v. Moffat, 46 U.S. 295 (1847) (contract); Smyth v.
Strader, 45 U.S. 404 (1846) (promissory note); Lawrence v. McCalmont, 43 U.S. 426 (1844)
(commercial guarantee). There were two additional pre-1871 cases in which Swift was raised, but both
involved the construction of a will. Williamson v. Berry, 49 U.S. 495 (1850); Lane v. Vick, 44 U.S. 464
(1845). From 1871 until the Supreme Court’s decision in Erie, nearly every case in which Swift was
raised also involved commercial relations. People’s Sav. Bank v. Bates, 120 U.S. 556 (1887) (mortgage
obligations); Am. File Co. v. Garrett, 110 U.S. 288 (1884) (bonds); Town of Pana v. Bowler, 107 U.S.
529 (1883) (bonds); Burgess v. Seligman, 107 U.S. 20 (1883) (stockholders’ obligations); Brooklyn City
& N.R. Co. v. Nat’l Bank of the Republic, 102 U.S. 14 (1880) (promissory note); Oates v. First Nat.
Bank of Montgomery, 100 U.S. 239 (1879) (commercial paper); Brown v. Spofford, 95 U.S. 474 (1877)
(promissory note); Collins v. Gilbert, 94 U.S. 753 (1876) (commercial paper); Townsend v. Todd, 91
U.S. 452 (1875) (mortgage, but deferring to state law); Chambers Cty. v. Clews, 88 U.S. 317 (1874)

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interstate commerce (unsurprisingly, these cases all involved railroads and arose
in the late nineteenth century). 270 Outside of these areas, state law, whether
statutory or judge-made, governed “[q]uestions of public policy as affecting the
liability for acts done . . . . within one of the States of the Union,” unless
controlled by federal law or by considerations requiring national uniformity such
as commercial relations. 271 More pointedly, cases involving the tort liability of
cities and states involved “local” law, according to the Court, making state court

(bonds); Sawyer v. Prickett, 86 U.S. 146 (1873) (stock); Boyce v. Tabb, 85 U.S. 546 (1873) (contract);
Olcott v. Fond du Lac Cty., 83 U.S. 678 (1872) (contract).

I did not locate a single pre-1871 state or federal court decision involving common-law torts

in which Swift was raised. Even the post-1871 cases involving railroads were not uniform in their
treatment of state tort law. Compare Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 379 (1893) (holding
that tort liability rules for railroads are general law because they concern commerce); with Bucher v.
Cheshire R. Co., 125 U.S. 555, 584 (1888) (considering Massachusetts law regarding tort liability rule
“local” law even though case involved injuries while on railroad).

Hartford Fire Ins. Co. v. Chicago, M. & St. P. Ry. Co., 175 U.S. 91, 100 (1899); see also

Smith v. Alabama, 124 U.S. 465, 475–76 (1888) (“It has never been doubted but that this entire body
and system of law, regulating in general the relative rights and duties of persons within the territorial
jurisdiction of the state, without regard to their pursuits, is subject to change at the will of the legislature
of each state, except as that will may be restrained by the constitution of the United States.”); id. at 478
(noting that Swift applied to the field of “law-merchant” relations, “by reason of its international
character.”); Old Colony Tr. Co. v. City of Tacoma, 230 F. 389, 392 (9th Cir. 1916) (application of
“principles of law to local conditions” is controlling even if state court is not construing a state statute);
Blaylock v. Inc. Town of Muskogee, 117 F. 125, 126 (8th Cir. 1902) (federal courts follow state court
decisions involving “powers and liabilities of the political or municipal corporations” in cases that do
not involve federal law or “general or commercial law”).

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[Vol. 111:101

decisions on such matters dispositive for the purposes of federal courts. 272 Thus,
even in the Swift era, the Notwithstanding Clause, along with the legislative
history and overall purpose of the Civil Rights Act, should be read to displace
“local” common-law immunities.
Even if objectors find a way to minimize the Notwithstanding Clause’s
displacement of state law immunities, advocates for immunity doctrine would
still have to show why the Derogation Canon should be applied in such a novel
way as to incorporate common-law defenses into Section 1983, given what any
reasonable legislator would have understood about the canon in 1871. 273 As
discussed above, by 1871 the Derogation Canon was on insecure footing and had
never been relied upon as a basis for incorporating a common-law defense into
a statutory cause of action. 274 Nor does post-Reconstruction jurisprudence


See, e.g., City of Detroit v. Osborne, 135 U.S. 492, 498 (1890) (liability of city for defective

sidewalks was matter of “local” law); see also Brush v. Comm’r of Internal Revenue, 300 U.S. 352, 364
(1937), overruled in part on other grounds by Graves v. People of State of New York ex rel. O’Keefe,
306 U.S. 466 (1939) (“The rule in respect of municipal liability in tort is a local matter; and whether it
shall be strict or liberal or denied altogether is for the state which created the municipality alone to
decide.”); United States v. City of New York, 82 F.2d 242, 243 (2d Cir. 1936) (holding that federal courts
follow local law for purposes of municipal liability for torts of employees, except when displaced by
federal statute); City of Denver v. Porter, 126 F. 288, 294 (8th Cir. 1903) (liability of municipalities for
negligence is matter of local law); Powers v. Massachusetts Homoeopathic Hosp., 109 F. 294, 296-97
(1st Cir. 1901) (same).

Matasar, supra note 3, at 767 (arguing that Reconstruction Congress understood governing

interpretative methodologies).

Supra Part I.A & B.

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regarding the Derogation Canon rehabilitate the Court’s Section 1983 immunity
doctrine. 275
To be clear, these insights have implications beyond qualified immunity.
The availability of legislative, prosecutorial, and judicial immunity in Section
1983 litigation all are grounded in a flawed application of an already unsound
Derogation Canon. To be sure, these implications are uncertain, because there
may be independent grounds for retaining some of these immunities. After all,
Congress has arguably endorsed judicial immunity through its amendments to
Section 1983, 276 and legislative immunity is based on more than simply
common-law principles. 277 Prosecutorial immunity, however, has some of the


Supra Part I.C.


By creating an exception concerning injunctive relief sought against judicial officers and

also making clear that judicial officers shall not be liable for costs or attorneys’ fees except where the
officer acted “in excess of such officer’s jurisdiction, see Federal Courts Improvement Act of 1996, Pub.
L. No. 104-317, 1996 U.S.C.C.A.N. (110 Stat.) 3847 (codified as amended at 42 U.S.C. §§ 1983, 1988),
Congress arguably codified judicial immunity. Moreover, the proscription against holding judges civilly
liable for “judicial acts existing when there is jurisdiction of the subject-matter” was long-recognized,
including in a Supreme Court decision issued the same year that section 1983 was enacted (although
not, to be clear, in the Section 1983 context). Bradley v. Fisher, 80 U.S. 335, 354 (1871). This immunity
could only be overcome through impeachment proceedings “or in such other form as may be specially
prescribed.” Id.

See Tenney, 341 U.S. at 372-76 (describing basis for legislative immunity).

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[Vol. 111:101

same failings as qualified immunity doctrine – it is premised on common-law
doctrine, principally state law, which has no place in Section 1983. 278
A second implication is that because this Article’s interpretation of Section
1983 is one that rests on the Civil Rights Act’s enacted text and existing modes
of interpretation, effectuating it does not require any action by Congress. Some
might object that the current Court would be resistant to reversing longstanding
precedent, especially in light of so-called super stare decisis of statutory
interpretation. 279 But the Court’s misstep here is that it has entirely failed to
grapple with the Civil Rights Act’s enacted text.
Moreover, notwithstanding the rhetoric that stare decisis is amplified in the
area of statutory interpretation, the Court has often disregarded the presumption
against overruling, albeit with varying degrees of transparency. By one count,
the Court did so 80 times in a span of under 30 years. 280 The Court overruled
Swift v. Tyson nearly 100 years after it was decided, notwithstanding
Congressional silence in the interim. 281 Monroe v. Pape was overruled in part 17


See Imbler v. Pachtman, 424 U.S. 409, 421-22 & n. 19 (1976) (canvassing state court

decisions to conclude that the majority of state courts found absolute immunity for prosecutors

See William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L. J. 1361, 1362

(1988) (describing the Supreme Court’s practice as applying “super-strong presumption of correctness”
to statutory precedents).

Id. at 1363 (identifying cases between 1961 and 1988 in which Court “overruled or

materially modified statutory precedents”).

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

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years after it was decided, over the dissenters’ criticism that Congress had taken
no action calling Monroe into question. 282 Pierson’s error is at least as egregious
as Swift’s or Monroe’s, and it has spawned an immunity doctrine that has created
significant instability and garnered well-founded criticism. 283
Third, there also are significant practical implications that flow from the
arguments presented in this Article. When qualified immunity applies in
litigation, it bars all compensation for victims of unconstitutional conduct, no
matter how egregious or injurious. These cases run the gamut, from school
officials who receive qualified immunity for subjecting teenage girls to invasive
strip searches with no reasonable basis, 284 to police officers who receive
immunity when they use deadly force against unarmed citizens, 285 to corrections
officers who are aware that an incarcerated person is suicidal and watch without
intervening as he wraps a phone cord around his neck and dies by suicide. 286 It
also has a harmful systemic impact because courts are free to apply qualified
immunity without ever considering the underlying merits of a plaintiff’s legal
claim, making it difficult for constitutional law to change over time. 287 And


See, Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 714 (1978)

(Rehnquist, J., dissenting).

Supra notes 81Error! Bookmark not defined.-87 and accompanying text.


See Safford Unified School District v. Redding, 557 U.S. 364 (2009).


See Salazar-Limon v. City of Houston, Tex., 137 S. Ct. 1277, 1278 (2017) (Sotomayor, J.,

dissenting from denial of cert.).

Cope v. Cogdill, 3 F.4th 198, 206 (5th Cir. 2021).


Supra notes 77-80 and accompanying text.

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[Vol. 111:101

because it looms over every potential civil rights case, there is good reason to
think that it deters injured people from initiating litigation, or interferes with their
attempts to obtain representation. 288 Removing qualified immunity would thus
result in more compensation for constitutional misconduct, more development
of constitutional law, and would probably lead to more civil rights litigation
Not everyone would view these as positive developments. Talk of
“floodgates” runs throughout debates about civil litigation in this country. 289
Although much of these concerns lack empirical foundation, it would be fair to
presume that removing a defense, even one that does work in a small minority
of cases, 290 will result in greater litigation and larger recoveries for plaintiffs.
Whether this is a feature or a bug depends on judgments about the role of
litigation in fostering law-abiding behavior, what other barriers exist to prevent
litigation abuse, the actual costs that would be imposed by changing course, and
the costs of maintaining the status quo. There are good reasons, however, to think
that eliminating qualified immunity will reduce inequity and improve the
administration of justice. 291 And, as this Article has shown, eliminating qualified


Supra note 2.


See, e.g., Alexander A. Reinert, The Narrative of Costs, the Costs of Narrative, 49 CARDOZO

L. REV. 121, 126-32 (2018) (summarizing and critiquing narrative of litigation and discovery abuse).

See Schwartz, supra note 84, at 44-45.


See Reinert, Schwartz, & Pfander supra note 95, at 795-805.

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immunity would be consistent with the actual text enacted by the Reconstruction
This Article raises a legal version of a popular philosophical question about
a tree falling in a forest. 292 If a legislature enacts a statute, but no one bothers to
read it, does it still have interpretive force? Section 1983’s immunity
jurisprudence can only survive if the answer to this question is “no.” But for all
of the reasons outlined here, Section 1983 should be read and applied in light of
its original, enacted text. The Reconstruction Congress intended to create
liability notwithstanding contrary state law, meaning that state law immunities
have no place in Section 1983. And the Derogation Canon, to the extent it applies
at all to the Civil Rights Act of 1871, cannot be the basis for applying some other
“common-law” defense of qualified immunity.
If the Supreme Court continues to apply its qualified immunity doctrine to
Section 1983 claims, its mistakes go beyond the well-grounded criticisms others
have raised. For as this Article shows, the Court’s immunity jurisprudence has
not just used “free-wheeling” judge-made law to fill a gap left by the
legislature. 293 Instead, it has deployed a canon of statutory interpretation,
founded in a mistrust of legislatures in favor of supposedly greater judicial


See 3 THE CHAUTAUQUAN 543-44 (June 1883) (posing question “If a tree were to fall on

an island where there were no human beings would there be any sound?”).

Supra note 93.

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[Vol. 111:101

wisdom, to apply Section 1983 in a way that contradicts text adopted by the
Reconstruction Congress. Compounding one grave error with another, the
Supreme Court has created an immunity jurisprudence that departs from text,
purpose, and context.

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