Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (25)
- Litigation (8)
- Civil Rights and Discrimination (6)
- Torts (5)
- Criminal Law (4)
-
- Fourth Amendment (2)
- Legal Ethics and Professional Responsibility (2)
- State and Local Government Law (2)
- Conflict of Laws (1)
- Courts (1)
- First Amendment (1)
- Labor and Employment Law (1)
- Land Use Law (1)
- Legal Remedies (1)
- President/Executive Department (1)
- Property Law and Real Estate (1)
- Public Affairs, Public Policy and Public Administration (1)
- Social and Behavioral Sciences (1)
- Institution
Articles 1 - 30 of 35
Full-Text Articles in Law
The Role Of Fault In § 1983 Municipal Liability, Michael Wells
The Role Of Fault In § 1983 Municipal Liability, Michael Wells
Scholarly Works
Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than …
Qualified Immunity And Statutory Interpretation: A Response To William Baude, Hillel Y. Levin, Michael Wells
Qualified Immunity And Statutory Interpretation: A Response To William Baude, Hillel Y. Levin, Michael Wells
Scholarly Works
In his article, Is Qualified Immunity Unlawful?, Professor Baude argues that the doctrine of qualified immunity under section 1983 is unlawful because the doctrine did not exist at the time section 1983 was enacted. We disagree. Section 1983 is a common law statute. Consequently, its meaning and application was not fixed at the time of original passage. In this article, we explain why.
Although we are sympathetic to Professor Baude’s implicit policy-based critique of the doctrine of qualified immunity, we believe his analysis is flawed. The better and more likely way to improve the doctrine is through the common law …
Suing The President For First Amendment Violations, Sonja R. West
Suing The President For First Amendment Violations, Sonja R. West
Scholarly Works
On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?
One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …
Land Use Law Update: The 2015 Mid-Year Roundup, Sarah Adams-Schoen
Land Use Law Update: The 2015 Mid-Year Roundup, Sarah Adams-Schoen
Scholarly Works
This update summarizes New York cases related to land use and zoning that were decided in the first half of 2015.
Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz
Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz
Scholarly Works
This article analyzes the significance of the United States Supreme Court decision in Messerschmidt v. Millender, 132 S.Ct. 1652 (2012), upon §1983 Fourth Amendment claims asserted against state and local law enforcement officers who apply for and enforce warrants. Millender held that police officers who sought and executed a very broad warrant authorizing them to search a residence for guns and gang related material were protected by qualified immunity. The author asserts that §1983 plaintiffs, who seek to recover damages based upon either the application or execution of an allegedly unconstitutional warrant, will now have to overcome various layers of …
Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz
Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz
Scholarly Works
This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.
Wrongful Conviction Claims Under Section 1983, Martin A. Schwartz, Robert W. Pratt
Wrongful Conviction Claims Under Section 1983, Martin A. Schwartz, Robert W. Pratt
Scholarly Works
No abstract provided.
Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells
Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells
Scholarly Works
Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where …
Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz
Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz
Scholarly Works
No abstract provided.
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Scholarly Works
In its 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that the Eleventh Amendment protected states from suit for patent infringement, effectively making state universities immune from intellectual property suits. This Article analyzes how the Florida Prepaid decision affects researchers at state universities, and how those researchers may avoid liability under existing law. It first concludes that researchers at state universities might still be subject to injunctions against future infringement. The Article next observes that individual researchers at state universities might also face personal liability for damages, but then suggests that …
Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein
Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein
Scholarly Works
No abstract provided.
Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer
Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer
Scholarly Works
No abstract provided.
Identifying State Actors In Constitutional Litigation: Reviving The Role Of Substantive Context, Michael L. Wells
Identifying State Actors In Constitutional Litigation: Reviving The Role Of Substantive Context, Michael L. Wells
Scholarly Works
While most section 1983 suits are brought against local governments and officials, an increasing number of plaintiffs target private persons and businesses who have collaborated with government in one way or another. In such cases, plaintiffs claim that private entities have acted "under color of state law" in violation of the plaintiffs' rights. They must establish that the defendants are nonetheless "state actors" in order to prevail on the constitutional claims they raise. The broad range of cases includes, among others, efforts to obtain relief against creditors who use self-help remedies, litigation directed at persons who have cooperated with state …
Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz
Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz
Scholarly Works
No abstract provided.
New Issues Arising Under Section 1983, Martin A. Schwartz
New Issues Arising Under Section 1983, Martin A. Schwartz
Scholarly Works
No abstract provided.
Fundamentals Of Section 1983 Litigation, Martin A. Schwartz
Fundamentals Of Section 1983 Litigation, Martin A. Schwartz
Scholarly Works
No abstract provided.
The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz
The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz
Scholarly Works
No abstract provided.
Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz
Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz
Scholarly Works
No abstract provided.
Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky
Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky
Scholarly Works
No abstract provided.
Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz
Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz
Scholarly Works
No abstract provided.
Supreme Court Section 1983 Developments, Martin A. Schwartz
Supreme Court Section 1983 Developments, Martin A. Schwartz
Scholarly Works
No abstract provided.
Section 1983 Litigation – Supreme Court Developments, Martin A. Schwartz
Section 1983 Litigation – Supreme Court Developments, Martin A. Schwartz
Scholarly Works
No abstract provided.
Section 1983 Litigation, Martin A. Schwartz, George C. Pratt
Section 1983 Litigation, Martin A. Schwartz, George C. Pratt
Scholarly Works
No abstract provided.
Section 1983 Litigation, Martin A. Schwartz
Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman
Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman
Scholarly Works
No abstract provided.
Section 1983 Litigation, Martin A. Schwartz
Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz
Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz
Scholarly Works
No abstract provided.
Section 1983 In The Second Circuit, Martin A. Schwartz
Section 1983 In The Second Circuit, Martin A. Schwartz
Scholarly Works
No abstract provided.
Introduction (Symposium On Municipal Liability), Patricia E. Salkin
Introduction (Symposium On Municipal Liability), Patricia E. Salkin
Scholarly Works
No abstract provided.
Section 1983, Martin A. Schwartz, George Pratt, Leon Friedman
Section 1983, Martin A. Schwartz, George Pratt, Leon Friedman
Scholarly Works
No abstract provided.