Today it is not unusual for a § 1983 plaintiff to establish a violation of the U.S. Constitution and resulting injuries, yet be denied damages because of the Supreme Court's misinterpretation of the 1871 statute. This anomaly is the result of several defenses created by the Court, including absolute and qualified immunity, the rejection of respondeat superior liability for municipalities, and the expansion of sovereign immunity, based, in part, on a misinterpretation of the Eleventh Amendment. Several other rulings of the Court narrow the circumstances under which private parties are subject to § 1983 liability, refuse to exempt § 1983 actions from the usual preclusion rules, limit the protection of federal statutes that plaintiffs attempt to enforce through § 1983, and eliminate supervisory liability. These restrictions have contributed to the erosion of § 1983 and its effectiveness. In short, civil rights are often illusory.
Because there is little hope that the Court will become more friendly to civil rights plaintiffs in the near future, this Article proposes that Congress adopt corrective amendments to § 1983, designed to overrule several of the limiting decisions issued by the Court. The corrective amendments proposed will bring the statute closer to the broad congressional goals and purposes of Congress in adopting § 1983. They will also force courts to treat civil rights claims as though they are at least as important as, for example, tort claims against state and local government.
Ivan E. Bodensteiner, Congress Needs to Repair the Court's Damage to § 1983, 16 Tex. J. C.L. & C.R. 29 (2010).