Copyright (c) 1999 Cornell Law Review
Cornell Law Review
ARTICLE: THE FAILURE OF FAULT UNDER § 1983:
MUNICIPAL LIABILITY FOR STATE LAW ENFORCEMENT
84 Cornell L. Rev. 1503
Mark R. Brown +
Fault has long been trumpeted as a cure for the woes of constitu tional litigation. Notwithstanding the absence of textual support, fault requirements have infused virtually all constitutional rights. 1 Constitutional definitions of fault range from gross negligence 2 to de liberate indifference 3 to conscious purpose, 4 depending on the consti tutional right at issue. Similarly, scienter requirements have added burdens to statutory remedies that say nothing about mens rea. Sec tion 1983 5 has particularly suffered at the hands of fault. In 1981, the Supreme Court wrote that "section 1983, unlike its criminal counter part, 18 U.S.C. 242, has never been found ... to contain a state-
of-mind requirement." 6 It was not long, however, before the Court
held that 1983 liability requires institutional fault 7 and official
fault. 8 In 1998, only a bare five-to-four majority of the Court rejected a heightened evidentiary standard for 1983 plaintiffs who allege wrongful intent. 9
Proponents of fault-based regimes under 1983 cite numerous, ostensibly benign, justifications for this result. For example, Professor John Jeffries has long argued that a fault requirement is theoretically wholesome for 1983. 10 He has argued that requiring fault correlates with common notions of corrective justice, 11 minimizes overdeter rence, 12 and supports a robust judicial interpretation of constitutional rights. 13
Professor Jeffries's most recent argument is that the Eleventh Amendment supports a fault-based regime for constitutional litiga tion. 14 Jeffries praises the current regime in which the Eleventh Amendment ...
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