Constitutional Torts
Restatement of the Law, Constitutional Torts will examine the law of 42 U.S.C. § 1983, which provides an individual the right to sue state government employees and others acting “under color of state law” in federal court for violations of federal law. Actions under § 1983 are the dominant vehicle for securing money damages for federal rights, especially constitutional rights. The project also will cover Bivens actions, the analogous cause of action for violations by a federal officer. Among other topics, the Restatement will cover governmental immunities from suit, local government liability for official policy or custom, and restrictions on § 1983 actions imposed by the Prison Litigation Reform Act and the overlapping law of federal habeas corpus.
From the press release announcing the project:
“We thought very carefully about the title of this Restatement and what it would cover,” explained ALI Director Richard L. Revesz. “We considered ‘The Law of 42 U.S.C. § 1983,” but felt that would limit the project to only examine actors under the law of any ‘State or Territory;’ it would not apply to federal officers. Titling the project ‘Constitutional Torts’ broadens the scope to any analogous cause of action against federal officers, created in Bivens. Where Bivens actions lie, the all-important defense of qualified immunity is the same as for state officers sued under § 1983. Any Restatement of this field should cover both.”
ALI’s Restatements of the Law are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court. Although Restatements aspire toward the precision of statutory language, they are also intended to reflect the flexibility and capacity for development and growth of the common law. That is why they are phrased in the descriptive terms of a judge announcing the law to be applied in a given case rather than in the mandatory terms of a statute.
“Whether under § 1983 or Bivens, immunity is the largest single topic in the law of constitutional torts,” said Reporter Jeffries. “The president has an immunity that no state officer can claim, but otherwise state and federal defendants are parallel. Legislative, judicial, and some prosecutorial functions trigger absolute immunity. The boundaries of absolute immunity are, especially for prosecutors, not always clear and are intensely controversial. These issues would be covered in detail. Executive officers enjoy qualified immunity, the contours of which are complicated and contested. Documenting the law of qualified immunity for various rights and in various situations is likely to be the largest single topic in the Restatement.”
“In addition to officer suits, one class of defendants, local governments, can be sued directly, but only for acts reflecting official policy or custom,” continued Reporter Karlan. “Respondeat superior is not allowed. When localities are amenable to suit, they have no immunity. Thus, the identity of the defendant determines the liability rule and greatly increases the incentive of plaintiffs to sue localities, rather than officers, whenever possible. On occasion, there is liability for policy-by-omission, for example, for failures to train government employees who then commit constitutional violations. Charting the line between these statements is exceedingly difficult and will be a major topic for the Restatement.”
Together with the core components of litigation under § 1983, there are several subsidiary topics to be covered. These include the relation of § 1983 to the Eleventh Amendment and the circumstances in which a suit properly pleaded against a state officer will nevertheless be found to be against the state itself and thus barred; damages (nominal, compensatory, and punitive); the meaning of 42 U.S.C. § 1988(a), which provides that certain “deficiencies” in federal law be filled by the law of the state where the federal court sits; the application of this approach to statutes of limitation; and the invalidity under the Supremacy Clause of certain state-law provisions affecting § 1983, including substitution of remedies, notice-of-claim statutes, and exhaustion of remedies.
The Restatement will also include two boundary constraints: the Prison Litigation Reform Act of 1995, codified at 42 U.S.C. § 1997e(a); and the overlap between § 1983 and federal habeas corpus, which has resulted in curtailment of the former for some situations in which both might apply.
The Restatement will not cover the provision of attorney’s fees under § l988(b).
Table of Contents:
Reporters
John Calvin Jeffries
Reporter Constitutional Torts
John Jeffries joined the Virginia law faculty two years after earning his law degree in 1973. His primary research and teaching interests are civil rights, federal courts, criminal law, and constitutional law. Jeffries has co-authored casebooks in civil rights, federal courts, and criminal law and has published a variety of articles in those fields. He also wrote a biography of Justice Lewis F. Powell, Jr.
Pamela S. Karlan
Reporter Constitutional Torts
Stanford Law School
Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law and a founder and co-director of the Supreme Court Litigation Clinic at Stanford Law School. Her primary scholarship involves constitutional litigation, particularly with respect to voting rights and anti-discrimination law.
Recent Posts
October 2025 Council Meeting Update
At its meeting on October 16 and 17, 2025, the ALI Council discussed and approved, in part or in whole, drafts of five projects.
The ALI Adviser is intended to inform readers about the legal topics and issues examined in many of ALI’s current projects; posts do not necessarily represent the position of the Institute taken in those projects. Posts on The ALI Adviser are written by ALI project participants, ALI members, and outside sources. Completed work is available to purchase online.
