Indiana Law Review


Indiana Law Review
Volume 19 1986 Number 3

42 U.S.C. Section 1988: A Congressionally-Mandated
Approach to the Construction of Section 1983

Jennifer A. Coleman*

I. Introduction

The forty-second Congress in very broad and general terms created

a private cause of action to redress deprivations, under color of state law,

of an individual's civil rights. 1 This cause of action is now codified at
42 U.S.C. section 1983. 2 Section 1983 is the civil counterpart of a provi-

sion passed in 1866 which created criminal penalties for the deprivation

of constitutional rights under color of state law. 3 Both the Act of 1871

and the Civil Rights Act of 1866 vested federal courts with jurisdiction

to determine violations of their respective provisions. 4

Section 1983 is a very general provision:

Every person who, under color of any statute, ordinance, regula-

tion, 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.
5

Courts have been forced beyond the text of section 1983 in order to give

•Associate, Jaeckle, Fleischmann & Mugel, Buffalo, N.Y. B.A., St. Bonaventure Univer-
sity, 1981; J.D., Boston College Law School, 1985. The author gratefully acknowledges the
support of her firm, and the assistance of Philip H. Mclntyre, Dr. Edward Eckert and, especially,

Professor Robert H. Smith in the preparation of this Article.

'Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13 (1871). For text of section 1 of

the Ku Klux Klan Act of 1871, see infra text accompanying note 229.
242 U.S.C. § 1983 (1982).

'Civil Rights Act of 1866, ch. 31, § 2, 14 Stat. 27 (1866). (See infra text accompany-

ing notes 166-227 for a detailed description of the Civil Rights Act of 1866 and a listing

of the current civil and criminal statutes that this Act gave rise to).

*See infra text accompanying notes 189-219 and 239-42.
542 U.S.C. § 1983 (1982).

665



666 INDIANA LAW REVIEW [Vol. 19:665

content to its legislative command. The application or construction of sec-

tion 1983 frequently involves extensive forays into the debates of the forty-

second Congress and into the common law of 187 1. 6 These judicial ex-
cursions into section 1983's history are largely inconclusive.

The following issues have been addressed by reference to the legislative

debates of the forty-second Congress and the common law of 1871: the
availability of immunity and good faith defenses, 7 exhaustion of ad-

ministrative remedies,
8

availability of punitive damages, 9 and municipal

liability.
10

In these cases, dissenting justices have consistently reached op-

posite results based on their own interpretation of section 1983's history."
Supreme Court majority and dissenting opinions, and their respective

manipulations of section 1983's history, reveal that it is impossible to deter-

mine the majority of issues arising in modern civil rights litigation from

section 1983's history.
12

Purported reliance on section 1983's history is unsatisfactory. It pro-

vides little guidance to lower federal courts and obscures efforts to iden-

tify a process for the interpretation and application of section 1983.

Supreme Court decisions may purport to rely on section 1983's history
because the statute's language does not address many issues raised in con-
temporary section 1983 litigation. Section 1983's language is, in fact, defi-

cient in many regards.
Although recourse to legislative history may be justified when the court

construes the actual text of a statute, section 1983's terms received scant

attention in the legislative debates. It was section three of the Ku Klux
Klan Act of 1871, which engendered the most discussion and not section

1983's predecessor.
13 Thus, even when the Court must define section 1983's

terms, there is little material in the Congressional Record with which to

work.

In section 1983 cases, the issue often is not a matter of textual ex-

trapolation; rather, courts are required to "fill the gaps" of section 1983.

In such cases, the historical inquiry becomes even more tenuous and

"See, e.g., Smith v. Wade, 461 U.S. 30 (1983); Monell v. Department of Social Services,

436 U.S. 658 (1978); Monroe v. Pape, 365 U.S. 167 (1961).
'Imbler v. Pachtman, 424 U.S. 409 (1976) (prosecutor immunity); Wood v. Strickland,

420 U.S. 308 (1975) (school official immunity); Pierson v. Ray, 386 U.S. 547 (1967) (judicial

and police officer immunity); Tenney v. Brandhove, 341 U.S. 367 (1951) (legislator immunity).

•Patsy v. Board of Regents, 457 U.S. 496 (1982).

•Smith, 461 U.S. 30; Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
l0
Monell, 436 U.S. 658; Monroe, 365 U.S. 167. These two decisions illustrate how

completely polar results are possible when section 1983 construction rests on legislative history.
n
See, e.g., Smith, 461 U.S. at 65-68 (Rehnquist, J., dissenting).

12
Id. at 92-93 (O'Connor, J., dissenting).

"Addickes v. S.H. Kress & Co., 398 U.S. 144, 187 (1970) (Brennan, J., dissenting);
Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1340
(1952).



1986J SECTION 1988 667

murky. The Supreme Court has embraced the common law of 1871 as
a means to fill the gaps of section 1983. For example, in Smith v. Wade, 14

the majority extensively cited pre- 1871 precedent to demonstrate that

punitive damages were available to redress reckless deprivations of civil
rights. The dissenters referred to their own exhaustive list of pre- 1871 case
law to conclude the opposite.

The position of this Article is that history is an inadequate guide to
the construction of section 1983. While history appears to be the

touchstone in many cases, courts actually have been tremendously influ-
enced by current developments in law and policy when applying section
1983. The debates of the forty-second Congress and the common law of
1871, despite their age, have shown themselves to be surprisingly malleable.

Recitation of historical sources, although an effort to legitimize results,

does not describe or further an interpretative process of section 1983.

Congress took steps to ensure that the civil rights acts would be ap-

plied as intended. In 1866, as part of its first civil rights legislation, Con-

gress enacted what is now 42 U.S.C. section 1988, which prescribes a
method for construing section 1983. 15 Section 1988 imposes a structure

on the process of interpreting section 1983 which acknowledges state and

federal law and which embraces developments in both.

Courts ruling on civil rights cases have applied section 1988 only

sporadically. For example, section 1988 has been used to apply state statutes

of limitations to section 1983 and to borrow state rules on the survival

of claims. These cases have begun to develop a section 1988 doctrine.

They have not, however, delineated when reliance on extrinsic aids to con-

strue section 1983 should yield to the application of federal and state law

pursuant to section 1988.

Section 1988 establishes a hierarchy for the borrowing of federal and

state law in civil rights cases. Use of other federal law is limited to those

cases where it is suitable to effect the purposes of section 1983. When
there is no applicable or suitable federal law, state law must be used to

fill the gaps in section 1983. Only state law that is inconsistent with sec-

tion 1983 can be avoided.

At first blush, section 1988's directive to apply state law in federal

civil rights actions may appear to be an inexplicable or unjustifiable
prescription for the construction of federal civil rights law. Two professors
have reacted to this aspect of section 1988. Professor Kreimer argued that

section 1988 actually authorizes federal courts to fashion federal common
law to fill the interstices of section 1983.

16 Professor Eisenberg argued

,4461 U.S. 30.

"See infra note 152 for text of § 1988.

"Kreimer, The Source of Law in Civil Rights Actions: Some Old Light on Section
1988, 133 U. Pa. L. Rev. 601 (1985).



668 INDIANA LA W REVIEW [Vol. 19:665

that section 1988 does not apply in the majority of section 1983 suits.
17

Both authors viewed the application of state law in federal civil rights

cases as undermining national uniformity in the application of section

1983.
,8

It is this author's position that section 1988 requires the application

of state law in civil rights cases. Section 1988's mandate cannot be cir-

cumvented by forcing an interpretation of section 1988 which either makes

the section effectively inapplicable to section 1983 suits, as Eisenberg

argues, or which views it as a mandate for extensive development of federal

common law, based on the obsolete doctrine of Swift v. Tyson, 19 as
Kreimer argues. To the extent that national uniformity is a legitimate policy
concern in section 1983 actions it is not subverted by section 1988. Rather,

section 1988 establishes that the purposes of section 1983 are the measures

against which any law, state or federal, is to be considered before being

applied in civil rights cases. A national threshold is thereby fixed as a
matter of federal law to afford appropriate protection and vindication

of individual rights. It is the position of this author that section 1988

embodies an astute political compromise which balances concerns for na-

tional uniformity and federalism while preserving and promoting the pur-

poses of the civil rights acts.

The problem with the construction of section 1983 has been the total
lack of direction or purposeful selection from among a number of elements,
all of which are important in the interpretive process. This will be shown

by surveying certain decisions of the Supreme Court of the United States.

In its immunity decisions the Court has relied heavily upon history to
construe section 1983. It has, however, quickly traversed the bounds of

history in these cases and decided them by fashioning federal common
law. In contrast, in its statute of limitations and survivorship cases the

Court has applied section 1988. The section 1988 decisions stand in decided
juxtaposition to the immunity cases. Rather than wade through history
in the statute of limitations and survivorship cases, the Supreme Court
has expressly determined that section 1983 is deficient and has turned to

section 1988 as a guide to other sources of law.

The point of departure between these two lines of cases is a deter-
mination that section 1983 is or is not deficient. History and section 1983

are distorted in the immunity cases, because the Court has avoided the

conclusion that section 1983 is in fact deficient. In its statute of limita-

tions and survivorship cases, however, the Court has concluded that sec-

tion 1983 is deficient and has applied section 1988.

,7
Eisenberg, State Law in Federal Civil Rights Cases: The Proper Scope of Section

1988, 128 U. Pa. L. Rev. 499 (1980).
lt
Id. at 516-18; Kreimer, supra note 16, at 632.

"41 U.S. (16 Pet.) 1 (1842).



1986] SECTION 1988 669

II. The Problem of Statutory Construction of Section 1983

A. Monroe v. Pape

—

The Debate Is Launched

From 1871 through 1961 and the Supreme Court's decision in Monroe
v. Pape, 20 section 1983 did not generate much federal court activity. 2 '

Monroe was a watershed section 1983 decision. Therein, the Supreme Court
construed section 1983's "under color of" state law language broadly,

holding that conduct in violation of section 1983 by a person clothed with

the authority of the state, was conduct "under color of" state law even

if the conduct itself was inconsistent with or contrary to state procedures

or rules. 22 Justice Douglas, author of the majority opinion, relied heavily

on the debates of the forty-second Congress and section 1983's parallels

to section two of the Civil Rights Act of 186623 to argue that a broad

construction was required to effectuate section 1983's overriding purposes. 24

Monroe provided the arena for the Supreme Court's first attempt to
identify and articulate section 1983's fundamental purposes. 25 The Court

determined that through section 1983 Congress intended to provide a

federal remedy in federal court because state courts had not adequately

protected civil rights, to fashion a broad remedial provision that would

deter future violations of civil rights, and to provide a remedy that was

supplemental to remedies available under state law. 26

Monroe breathed new life into section 1983 and, simultaneously, in-
itiated its erratic interpretation. Comparison of the majority opinion by

Justice Douglas with Justice Frankfurter's dissent exposes the seeds of

confusion. Justice Douglas maintained that stare decisis compelled that

the construction of "under color of" state law espoused in prior cases27

20
365 U.S. 167 (1961).

2x See Comment, The Civil Rights Act: Emergence of an Adequate Civil Remedy?,
26 Ind. L.J. 361, 363-66 (1951) (discussion of cases arising under statutory predecessors

to section 1983 prior to 1920); see also Note, The Proper Scope of the Civil Rights Acts,

66 Harv. L. Rev. 1285, 1285 n.l (1953). "Between 1961 and 1977 the number of cases

filed in federal court under the civil rights statutes increased from 296-13,113." Maine v.

Thiboutot, 448 U.S. 1, 27 n.16 (1980) (Powell, J., dissenting).

"Monroe, 365 U.S. at 187.

"Section 2 of the Civil Rights Act of 1866 was the prototype for section 1 of the

Ku Klux Klan Act of 1871. Monroe, 365 U.S. at 185. See infra text accompanying notes
186 and 234.

2*Monroe, 365 U.S. at 171-87. Justice Douglas also concluded that section 1983's

reference to "person[s]" did not include municipalities. Id. at 191.

"See supra text accompanying notes 80-97.

^Monroe, 365 U.S. at 173-74.

"Screws v. United States, 325 U.S. 91, 108 (1945); United States v. Classics, 313

U.S. 299, 325-26 (1940) (Supreme Court concluded that conduct by a person cloaked with

the authority of the state was taken "under color of state law even though it may have
been unauthorized and even contrary to the law of the state).



670 INDIANA LAW REVIEW [Vol. 19:665

apply to that language in section 1983.
28

Justice Douglas also relied upon

the legislative debates to support the conclusion that section 1983 was

to be broadly construed.
29

Justice Frankfurter, in dissent, would have sub-

jugated principles of stare decisis to policies of federalism.
30 Rather than

addressing the issue anew, he would have found that section 1983 only

reached action authorized by state law. 31 This view was based on Justice

Frankfurter's reading of section 1983's legislative history.

Monroe set the stage for the ensuing confusion over the construction
of section 1983. The issues joined by majority and dissent were the im-

portance of history, the relevance of parallels between section 1983 and

other civil rights acts (notably the Act of 1866), the importance and role

of federalism in construing section 1983, the role of legal developments

subsequent to the enactment of section 1983, 32 the role of stare decisis™

and the need to construe section 1983 so that its purposes were accom-

plished. Subsequent cases indicate that an acceptable accommodation of

these often competing values has yet to be achieved. 34

Problems of statutory construction arise in many contexts, and view-
points on the subject are legion. 35 While in the abstract there may be

"Monroe, 365 U.S. at 185-86.
29
Id. at 180-84.

30
Id. at 220-22 (Frankfurter, J., dissenting).

u
Id. at 237 (Frankfurter, J., dissenting).

"Monroe stated expressly that section 1983 was to be read against the backdrop of
tort law. Id. at 187.

33
In Maine v. Thiboutot, 448 U.S. 1 (1980), Justice Powell argued for a diminished

role for stare decisis in section 1983 cases because he did not wish to perpetuate a broad

construction of section 1983. Id. at 33 (Powell, J., dissenting).

"Federalism values may or may not outweigh the purposes of section 1983. See, e.g.,
Fair Assessment In Real Estate Ass'n v. McNary, 454 U.S. 100 (1981). Stare decisis will

or will not yield to the purposes of section 1983. Compare Monroe, 365 U.S. at 186-87
with Monell, 436 U.S. at 695.

"See Beaney, Civil Liberties and Statutory Construction, 8 J. Pub. L. 66 (1959); Bishin,

The Law Finders: An Essay in Statutory Interpretation, 38 So. Cal. L. Rev. 1 (1965);
Cox, Judge Learned Hand and the Interpretation of Statutes, 60 Harv. L. Rev. 370 (1947);
Dickerson, Statutory Interpretation: Core Meaning and Marginal Uncertainty, 29 Mo. L.
Rev. 1 (1964); Dickerson, Symposium on Judicial Law Making in Relation to Statutes,
36 Ind. L.J. 411 (1961); Frankfurter, A Symposium on Statutory Construction, 3 Vand.
L. Rev. 365 (1950); Gaylord, An Approach to Statutory Construction, 5 S.W. L. Rev.
349 (1974); Johnstone, Evaluation of the Rules of Statutory Interpretation, 3 U. Kan. L.
Rev. 1 (1954); Landis, Statutes and the Sources of Law, 2 Harv. J. on Legis. 7 (1965);
Mendelson, Mr. Justice Frankfurter on the Construction of Statutes, 43 Calif. L. Rev.
653 (1955); Posner, Statutory Interpretation in the Classroom and in the Courtroom, 50
U. Chi. L. Rev. 800 (1983); Radin, Realism in Statutory Interpretation and Elsewhere,
23 Calif. L. Rev. 156 (1935); Radin, Statutory Interpretation, 43 Harv. L. Rev. 863 (1930);
Note, Statutes: Construction: The Legislative Silence Doctrine, 43 Calif. L. Rev. 907 (1955);
Note, Statutory Construction—The Role of the Court, 71 W. Va. L. Rev. 382 (1969); Com-
ment, The Judicial Function in Statutory Construction, 8 Stan. L. Rev. 293 (1956).



1986] SECTION 1988 671

so-called norms of construction, 36 no such abstract set of rules has been

endorsed in the context of section 1983 interpretation. Rather than ar-

ticulating a method of construction for section 1983, the Court has taken

an ad hoc approach. A significant reason for the difficulties with con-
struing section 1983 is that it and other Reconstruction Era provisions

were drafted in general terms to effect highly controversial results. 37 These

provisions did not form a comprehensive civil rights code; rather, they

provided the superstructure by which an individual's civil rights could be

protected.

Since Monroe, courts have relied heavily on history and the debates

of the forty-second Congress to construe section 1983. Invariably, long-

dead senators and representatives are required to speak to the civil rights

problems of the late twentieth century. These voices from the past, and

the legal context of the passage of the Ku Klux Klan Act, are ostensibly
deemed sufficient to fill in the gaps of section 1983 and to ferret out

its "true" meaning. Closer inquiry reveals, however, that section 1983's

history does not achieve so much.

As stated previously, there are objective rules of statutory construc-
tion; primary among such rules is plain meaning. If the plain meaning
of a statute is ascertainable from its text, that meaning controls. 38 If the

text is incapable of expressing a plain meaning, then the courts consider

extrinsic sources to interpret the statute. Foremost among these extrinsic
sources of law is legislative history. Supreme Court construction of sec-

tion 1983 has become mired in history because the Court has repeatedly

found, both expressly and implicitly, that the language of section 1983

is not capable of expressing plain meaning.

B. The Plain Meaning Rule

Section 1983 provides that "any person" who deprives another of
her constitutional rights "under color of" state law is liable to that in-

dividual. Used in the conventional sense, the term "person" means all

people and expresses no exception. This language, however, has been con-

ib
See, e.g., Hurst, Dealing with Statutes (1982); 3 Sands, Statutes and Statutory

Construction §§ 72.01-72.08 (4th ed. 1974) (dealing specifically with civil rights statutes);

Statsky, Legislative Analysis and Drafting (2d ed. 1984); Statsky, Legislative Analysis:
How to Use Statutes and Regulations (1975).

"See Gressman, supra note 13, at 1337, 1340, 1357.

"See, e.g., Sedgwick, A Treatise on the Rules Which Govern the Interpreta-
tion and Application of Statutory and Constitutional Law 194 (1857); Holmes, The
Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). But see Lyman, The

Absurdity and Repugnancy of the Plain Meaning Rule of Interpretation, 3 Man. L.J. 53,
54 (1969); Merz, The Meaninglessness of the Plain Meaning Rule, 4 U. Dayton L. Rev.
31, 32 (1979); Wald, Some Observations on the Use of Legislative History in the 1981 Supreme
Court Term, 68 Iowa L. Rev. 195, 196-99 (1983).



672 INDIANA LA W REVIEW [Vol. 19:665

strued to include cities, which are not persons in the plain meaning of

the word, 39 and to exclude judges
40 who are, in most cases, persons. Plain

meaning in section 1983 cases has either been implicitly dismissed by its

absence from reported decisions, or it has been expressly rejected. Justice

Powell, for example, has forthrightly stated his view of the plain mean-

ing rule in the context of section 1983 suits:

Although plain meaning is always the starting point . . . this Court

rarely ignores available aids to statutory construction .... We
have recognized consistently that statutes are to be interpreted not

only by a consideration of the words themselves, but by consider-

ing, as well, the content, the purposes of the law, and the cir-

cumstances under which the words were employed. ...

The rule is no different when the statute in question is derived
from the civil rights legislation of the Reconstruction Era. Those

statutes must be given the meaning and sweep dictated by "their

origins and their language"—not their language alone. . . . When
the language does not reflect what history reveals to have been
the true legislative intent, we have readily construed the Civil
Rights Acts to include words that Congress inadvertently omit-

ted. . . . Thus,
*

'plain meaning** is too simplistic a guide to the

construction of § 1983.
AX

In short, the terms of section 1983 have become "terms of art;" they

have been stripped of their plain meaning, if indeed they ever possessed

such meaning.

Because the Court does not tarry long with "plain meaning" in sec-

tion 1983 cases, history and the "battle of the string citations" 42 are

resorted to almost immediately to construe section 1983's terms and fill

in its gaps.
43

'"See Monell v. Department of Social Services, 436 U.S. 658 (1978).
40See Pierson v. Ray, 386 U.S. 547 (1967). See infra text accompanying notes 99-112

for a discussion of this case.
4, Maine v. Thiboutot, 448 U.S. 1, 13-14 (1980) (Powell, J., dissenting) (emphasis added);

see also Allen v. McCurry, 449 U.S. 90, 110 (1980) (Blackmun, J., dissenting); Addickes

v. S.H. Kress & Co., 398 U.S. 144, 216-17 (1970) (section 1983's words must be related
to its purposes; this is the only proper way to interpret the statute).

42Smith v. Wade, 411 U.S. 30, 93 (1983) (O'Conner, J., dissenting).
4JOn several occasions, the Supreme Court has taken the position that because section

1983 is a remedial statute, it ought to be broadly construed. See Wilson v. Garcia, 105

S. Ct. 1938 (1985); Owen v. City of Independence, 445 U.S. 622, 636 (1980); Quern v.
Jordan, 440 U.S. 332, 357 (1979); Monell, 436 U.S. at 684-85. Broad construction is argued

for on the basis of section 1983's relationship to the fourteenth amendment. Because sec-
tion 1983 was enacted pursuant to section 5 of the fourteenth amendment, it has been argued
that section 1983 must be given the same latitude in construction as is accorded the fourteenth
amendment. See Quern, 440 U.S. at 351 n.3 (Brennan, J., concurring); Mitchum v. Foster,



1986] SECTION 1988 673

C. Section 1983's History

Section 1983's history consists of the debates surrounding passage of

the Ku Klux Klan Act of 1871, recorded in the 42nd Congressional Globe,
and of the historical/legal backdrop in which section 1983 was enacted.

1. Legislative Debates.—Frequently, in section 1983 Supreme Court
decisions, one sees extensive citation and quotation of text from the debates

of the forty-second Congress. These debates are a highly unreliable source

of law for the construction of section 1983 in the context of specific and

often finely tuned issues. While the debates may provide a general
understanding of the statute's overriding purposes and goals, they are far

too incomplete and equivocal to be determinative of narrowly drawn prob-

lems of section 1983 application.

Debates concerning the Ku Klux Klan Act tended to focus upon sec-
tion three of that act and also on the events transpiring in the Klan-

dominated South. 44 Very little debate concerned section one, the

predecessor to section 1983. Reconstruction of the South was a highly

charged issue for the Congresses of the post-civil war era. Opposition to

federal intervention in the relationship between southern governments and

the freed slaves was intense. Many congressmen, both for and against
federal involvement in Reconstruction, feared that a strong centralized

government would derogate state autonomy. 45 Arguments for vesting the

federal government with authority to enforce civil rights were equally pas-

sionate in light of the states' ineffectiveness in adequately protecting these

rights.
46 On one level, the debate raged over the role of the federal govern-

ment; on another, more personal level, the debate raged over radically

differing views concerning the status of non-whites.

The text of the debates cannot be artificially severed from the then

prevailing political climate. Both opponents and proponents of the Act

may have overstated its perceived effects to win uncommitted votes. Their
remarks cannot be taken wholly at face value. Furthermore, twentieth

century readers cannot fully transport themselves beyond their own social

407 U.S. 225, 240 (1972); Pierson, 386 U.S. at 561 n.l (Douglas, J., dissenting). This approach

to section 1983 construction is frequently urged in the context of arguments for increasing

the availability and scope of section 1983 remedies.

"See Monell, 436 U.S. at 665; Addickes, 398 U.S. at 215 (Brennan, J., concurring

in part and dissenting in part); Gressman, supra note 13, at 1334.
4iSee Cong. Globe, 42nd Cong., 1st Sess. H.p. app. 46-47, 50 (remarks of Rep. Kerr);

id. at 371-73 (remarks of Rep. Archer); id. at 86-87 (remarks of Rep. Storm); id. at S.p.

app. 216-21 (remarks of Sen. Thurman).

"For recitations of the atrocities committed by the Ku Klux Klan in southern states
during this period, see, e.g., Id. at S.p. app. 154-60 (remarks of Sen. Sherman); id. at

107-09 (remarks of Sen. Pool); id. at H.p. app. 320-22 (remarks of Rep. Stoughton); id.

at 78-79 (remarks of Rep. Perry); Message to Congress from President Grant, March 23,

1871, id. at S.p. app. 236.



674 INDIANA LAW REVIEW [Vol. 19:665

and cultural environment into an era over a century past. The process
of drawing meaning from the legislative debates is imbued with bias from

the beginning.
47

Reliance on these legislative debates attributes false omniscience to

the actors in 1871 by allowing that these congressmen, themselves bound

by their culture, provided for problems one hundred years hence. 48 A judge
in 1986 must attempt to get into the mind of an 1871 legislator to deter-

mine what that legislator would have intended to do about a situation

arising one hundred (plus) years in the future. While this is an interesting

and possibly informative process, it cannot and should not be

determinative.

The Court speaks of "a" legislative intent in these cases, suggesting
that Congress, as a body, acted with a single mind in the passage of the
bill and that its intent is discernible. In fact, the division in Congress,

even among proponents or opponents to the Reconstruction legislation,
was substantial. The claim that Congress acted with a single "intent" is

a fiction.

The retrospective view of modern judges is further distorted by the

fact that stare decisis requires the Court to accomodate precedent. The

judge must not only attempt to discern what the debates mean, but she

must also make them resonate with judicial precedent. Thus, history is
made to be consistent with an ever expanding string of precedent, it
becomes a vehicle for the construction of section 1983 and it loses its

character as an objective source of law.

Absent conference reports or extensive debate concerning section one

of the Ku Klux Klan Act, and in view of the problems discussed above,
the legislative debates are not very helpful in the construction of section

1983.
49 While this position is not expressly adopted by the Supreme Court,

47 " 'By viewing society's values through one's own spectacles . . . one can convince
oneself that some invocable consensus supports almost any position a civilized person might

want to see supported.' It isn't a matter of good or bad faith. Try as we will, we cannot

escape the perspectives that come with our particular backgrounds and experiences." Brest,

Interpretation and Interest, 34 Stan. L. Rev. 765, 771 (1982); see also J. Ely, Democracy
and Distrust 67 (1980); Brest, The Misconceived Quest for the Original Understanding,
60 B.U.L. Rev. 204, 219 (1980) [hereinafter Brest, Misconceived Quest}.

48 "The act of translation required here is different in kind, for it involves the counter-

factual and imaginary act of projecting the adopter's concepts and attitudes into a future

they probably could not have envisioned. When the interpretator engages in this sort of
projection, she is in a fantasy world more of her own than the adopter's making." Brest,
Misconceived Quest, supra note 47, at 222. Compare Fiss, Objectivity and Interpretation,
34 Stan. L. Rev. 739, 753-68 (1982).

4,
In the words of Justice Brennan, "The 42nd Congress, of course, can no longer

pronounce its meaning with unavoidable clarity." Quern, 440 U.S. at 365 (Brennan, J.,
concurring); see also Owen, 445 U.S. at 675-76 (Powell, J., dissenting).



1986] SECTION 1988 675

it may be implied from the fact that the legislative debates are seldom,
if ever, exclusively or primarily relied upon. 50

2. The Common Law of 1871.—Usually, reliance on history
manifests itself by recitation of the common law of 1871. Such references
are supported by the argument that the drafters of section 1983 adopted

or incorporated the common law of 1871 in section one of the Ku Klux
Klan Act. Many Supreme Court decisions construing section 1983 rely
on this common law when the text of section 1983 and its legislative
debates are inconclusive.

In Monell v. Department of Social Services,
51

the Supreme Court over-

ruled its conclusion in Monroe that municipalities were not * 'persons'

'

and not liable under section 1983. 52 Justice Brennan's opinion, on behalf

of six justices, first rejected Monroe's construction of the Ku Klux Klan
Act's legislative history which had led to the conclusion that municipalities

were not persons. 53 The Monell majority then considered the legal import

of the word
'

'person' ' in 1871. The Court noted that in 1871 municipalities

had been treated as persons for purposes of diversity jurisdiction. 54

Reference was made to the remarks of Senator Bingham to illustrate that
members of the forty-second Congress thought that municipalities were

included in the term "persons." 55 Corporate law was shown to have con-

ferred the status of "person" on municipalities in 1871. 56 Finally, reference

was made to a prior definitional act of Congress which stated that the
usual meaning of "person" included political bodies. 57 The majority was

also influenced by subsequent developments in section 1983 adjudication

and in tort law. 58

"See infra text accompanying notes 98-148.

"436 U.S. 658 (1978).
i2
Id. at 701.

53An amendment, known as the Sherman Amendment, was proposed in connection
with debate over the Ku Klux Klan Act of 1871. This amendment would have imposed
liability on municipalities for damage caused as a result of riotous conduct within a city's

territorial limits. The amendment was rejected; the debate emphasized that it would be un-

fair to hold cities accountable for the conduct of persons who might or might not be citizens.
More importantly, the statute would have imposed an affirmative duty on cities to provide

police protection necessary to prevent such riotous associations. This affirmative duty was

viewed as too great an intrusion by Congress into the prerogatives of local government,

and thus the Sherman Amendment was rejected. In Monroe v. Pape, the rejection of the

Sherman Amendment was construed to reflect congressional disapproval of any municipal

liability under those provisions of the Ku Klux Klan Act which had become law. 365 U.S.
at 188-90. This same debate was subsequently reconstrued in Monell as reflecting only con-

gressional apprehension that it lacked power to impose positive duties on local government

to protect its citizens. Monell, 436 U.S. at 664-69.
54
Id. at 681-82.

"Id. at 685 n.45. Nothing, however, in Senator Bingham's remarks is expressly on point.
54
Id. at 687.

"Id. at 688. Act of Feb. 25, 1871, § 2, 16 Stat. 431 (1871).
SiMonell, 436 U.S. at 698-700.



676 INDIANA LA W REVIEW [Vol. 19:665

Reliance on 1871 common law in Monell and in other cases 59 is prob-
lematic. In most cases, it is impossible to identify the common law of
1871 concerning a given issue. Further, there is little justification for

hamstringing modern courts by requiring them first to unearth 1871

common law and then to reach results based on such common law. By
1871, each state had its own legislative and judicial system and its own
common law traditions. Federal courts were also generating common law. 60

It is difficult to freeze the common law of 1871 in place and thereby
derive a definitive pronouncement of the common law of 1871 on a par-
ticular subject. Such an historical, suspended animation of the common
law, even if possible, would provide only a cross section, showing how
different legal systems treated particular matters.

61
Especially with respect

"See, e.g., Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-66 (1981); Allen, 449

U.S. at 97-99; Owen, 445 U.S. at 638-44; Quern, 440 U.S. at 343; Pierson, 386 U.S. at

553-55; Tenney, 341 U.S. at 376.
60The jurisprudence of 1871 included an idealized vision of the common law as a

unitary, almost Platonic reality, to which all legal systems aspired and in which all systems

participated. Regardless of territorial or jurisdictional limits, all courts were viewed in theory

as adding to the development of a single body of common law. The Supreme Court
acknowledged in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), that the various court

systems actually had their own separate bodies of law, which often varied significantly from
one jurisdiction to another. Pursuant to the Rules of Decision Act, Federal Judiciary Act

of Sept. 24, 1789, codified at 28 U.S.C. § 725 (1982): 'The laws of the several States,

except where the Constitution, treaties, or statutes of the United States otherwise require

or provide, shall be regarded as rules of decision in trials at common law, in the courts
of the United States, in cases where they apply." Id. Prior to Erie, federal courts applied

only the statutory law of the state in which they resided; case law was not binding and

federal courts could ignore state common law. See Swift v. Tyson, 41 U.S. (16 Pet.) 1,
18 (1842). Recognition, however, that judges actually do make law led to the result in Erie
that state decisional law was no less law than state statutes and hence had to be applied

by federal courts in diversity actions. Justice Brandeis stated:

The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr.

Justice Holmes. The doctrine rests upon the assumption that there is a "transcenden-

tal body of law outside of any particular state but obligatory within it unless

and until changed by statute, . . . 'but law in the sense which courts speak of

it today does not exist without some definite authority behind it. The common
law so far as it is enforced in a State, whether called common law or not, is
not the common law generally but the law of that State existing by the authority
of that State without regard to what it may have been in England or anywhere
else . . .' the authority and only authority is the State, and if that be so, the

voice adopted by the State as its own [whether it be of its Legislature or of its
Supreme Court] should utter the last word."

Erie, 304 U.S. at 79 (quoting Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370-72 (1910)).
"But, the common law, by its nature, does not provide systematic treatment of issues.

Rather a rule of law must be implied from a body of precedent which, to a greater or

lesser degree, may be on point. Therefore, even if the court successfully accumulated all
the decisions of any common law system prior to 1871 to see how they treated an issue,
a court is likely to find that the exact issue was not answered authoritatively at all. Argu-
ment based on factual distinctions and argument based also on the need to change the
law were, and are, always available in any given common law system.



1986] SECTION 1988 677

to matters regarding the freed slaves and civil rights, unanimity among
jurisdictions hardly existed. The failure of consensus among the several
states over the most basic precepts of individual liberty was the impetus

for the Civil Rights Act and renders illusory the view that the various

common law systems held concurring views on many issues. 62

In theory, per the reported jurisprudence of the day, a single, general

common law existed and was participated in by all judicial tribunals,
regardless of territorial boundaries. It is difficult to accept the proposi-

tion that the Reconstruction Era legislators operated under such a view

given the tenaciousness with which they debated over preserving and pro-

tecting state law and state tribunals. 63

Civil rights legislation was aimed precisely at divergent state law treat-

ment of basic rights. Constitutional minimums were established64 and
federal law was enacted to enforce statutory and constitutional
guarantees. 65 Whatever the common law of 1871 was, Congress supplanted
it with the Reconstruction Era legislation. It hardly makes sense, therefore,

to assume that this same legislative body incorporated static 1871 com-

mon law in its civil rights enactments.
Nowhere in the debates accompanying passage of the Ku Klux Klan

Act of 1871 did members of Congress state that common law was incor-
porated into the 1871 Act. The Court has nevertheless attempted to deduce

a rationale for implying such incorporation. The first premise in this deduc-

tion is typically a statement by the Court that a given legal position on

the controverted issue existed in 1871. 66 Using Monell as an illustration,

this would be stated: "Municipalities were treated as persons in 1871." 67

This premise is then supported by recitation of ancient cases interpreted

as endorsing the conclusion. Recitation of contrary precedent to rebut

the first premise invariably appears in dissenting opinions.
68

After declaring the status of 1871 common law, the premise is added
that the forty-second Congress must have known about the Court-iden-
tified common law rule. For example, again using Monell, the Court refer-
red to the legislative debates to illustrate that a senator, Senator Bingham,

"While this is obviously true regarding matters expressly dealing with civil rights, it

is also true of matters which, at first blush, did not deal expressly with civil rights. For

example, matters relevant to contracts, land sales, and testifying in court often distinguished

between whites and non-whites in operation. These varied among the several states.
6iSee infra text accompanying notes 212-222.

"U.S. Const, amends. XII, XIV and XV.
6iSee infra text accompanying notes 149-242.

"Given the divergence of common law in 1871, it is possible to find support therein
for almost any proposition. See, e.g., Smith, 461 U.S. 30, in which the majority and dis-

sent each found abundant authority in 1871 common law for polar conclusions.
67See supra text accompanying notes 53-58.

"See, e.g., Smith, 461 U.S. at 60-64 n.3 (Rehnquist, J., dissenting); Monell, 436 U.S.

at 720-24 (Rehnquist, J., dissenting).



678 INDIANA LAW REVIEW [Vol. 19:665

probably knew that municipalities were treated as persons. 69 In Carey v.

Piphus™ this argument for imputing legislative knowledge of 1871 com-
mon law took the following form: because many members of Congress
were lawyers and because lawyers would presumably be familiar with the

law of damages then existing, Congress in 1871 must have known about
the rules concerning compensatory damages when it enacted the Ku Klux
Klan Act. 7 ' On other occasions, congressional knowledge has been
grounded on the Court's own sense of disbelief that members of the forty-
second Congress could have intended something at variance with the law

of 1871 as perceived by the Court. 72

The members of Congress were representatives of different states, each

of which claimed and fiercely defended a unique legal system and body

of law. This fact alone makes suspect the proposition that Congress itself

knew of a particular common law rule. Additionally, it is unlikely that
the individual members of Congress even knew of, or contemplated, the
myriad common law rules and impliedly assented to their incorporation
into section 1983's predecessor.

73

Despite these problems with the first two premises of the Supreme

Court's justification for reliance on 1871 common law, the Court has
repeatedly maintained that section 1983 incorporates this common law.
Frequently this conclusion is stated thus: if Congress had meant to alter

the common law rule as to a specific issue it would have done so expressly
when enacting the Ku Klux Klan Act. 74 Occasionally, this conclusion is
stated somewhat differently: because Congress did not address a particular
issue in enacting the Civil Rights Act of 1871, the common law status
of that matter in 1871 was not abrogated or affected by section 1983's

predecessor. 75

The real threat of such a process is that section 1983 may become
shackled to obsolete common law doctrines. 76 Such a result can be and

69Monell, 436 U.S. at 685 n.45.
70435 U.S. 247 (1978).
71
Id. at 255-56.

12Owen, 445 U.S. at 677 (Powell, J., dissenting); Quern, 440 U.S. at 343; Monell,

436 U.S. at 707 (Powell, J., concurring); Pierson, 386 U.S. at 554. It is interesting to note

at this stage that even the Justices of the United States Supreme Court, with benefit of
briefs and arguments on the subject of the common law of 1871 vis-a-vis specific topics,
cannot agree. Nevertheless, there is continued insistence that the common legislator of 1871
knew what the common law of 1871 was regarding these often narrow points of law.

73See infra text accompanying notes 212-22.

"See, e.g., Monell, 436 U.S. at 692-93 n.57; Scheuer v. Rhodes, 416 U.S. 232, 243-44

(1974); Pierson, 386 U.S. at 554-55; Tenney, 341 U.S. at 376.

"See, e.g., Newport, 453 U.S. at 258-59; Allen, 449 U.S. at 98; Owen, 445 U.S.
at 637; Quern, 440 U.S. at 343; Monell, 436 U.S. at 720 (Rehnquist, J., dissenting); Carey,
435 U.S. at 255-56. But see Owen, 445 U.S. at 676 (Powell, J., dissenting) (arguing that
no inference may be drawn from congressional silence).

76For example, although punitive damages are now universally available in negligence



1986] SECTION 1988 679

has been avoided in some cases, usually by propounding unconvincing
arguments as to the status of a particular legal matter in 1871, or by
application of a quasi-implied repeal analysis to conclude that the 1871

common law rule was simply too contrary to the purposes of section 1983
to be given effect. 77

The common law history of section 1983, like the congressional debates
of the forty-second Congress, is not a very reliable or legitimate source

of law for section 1983. It is subject to considerable nuance and to con-

tradictory arguments about meaning and relevance. Justice O'Connor
stated this concisely in her dissent in Smith v. Wade, condemning the

historical exegesis by both the majority and dissent therein:

In interpreting § 1983, we have often looked to the common law
as it existed in 1871, in the belief that, when Congress was silent
on a point, it intended to adopt the principles of the common
law with which it was familiar. . . . This approach makes sense

when there was a generally prevailing rule of common law, for
then it is reasonable to assume that Congressmen were familiar

with that rule and imagined that it would cover the cause of ac-

tion that they were creating. But when a significant split in author-

ity existed, it strains credulity to argue that Congress simply

assumed that one view rather than the other would govern. Par-

ticularly in a case like this one [punitive damages], in which those

interpreting the common law of 1871 must resort to dictionaries
in an attempt to translate the language of the late 19th century

into terms that judges of the late 20th century can understand, . . .

and in an area in which the courts of the earlier period frequently

used inexact and contradictory language, ... we cannot safely
infer anything about congressional intent from the divided con-

temporaneous judicial opinions. The battle of the string citations

can have no winner. 78

The most valid conclusion that may be drawn from section 1983's history
is that it is inconclusive in the majority of cases that have come before

actions, Justice Rehnquist, in Smith v. Wade, read 1871 common law as allowing the award
of punitive damages only upon a showing of intentional conduct. Despite this dissonance

with the modern view, Justice Rehnquist would have applied his version of the 1871 rule

to section 1983. Smith, 461 U.S. at 87 (Rehnquist, J., dissenting). The majority in Smith

also played the historical game and argued that intent was not required at 1871 common
law. Significantly, however, the majority also considered post 1871 decisions in its opinion.

Id. at 34-36.

"Newport, 453 U.S. at 258-59; Carey, 435 U.S. at 258; Wood, 420 U.S. at 317-18;

Scheuer, 416 U.S. at 243-47; Monroe, 365 U.S. at 186-87.
7 '461 U.S. at 92, 93 (O'Connor, J., dissenting).



680 INDIANA LAW REVIEW [Vol. 19:665

the Supreme Court. 79 It can be expected to fare no better as civil rights

litigation enters the twenty-first century.

D. The Purposes of Section 1983

Section 1983's fundamental purposes are those general goals which

a majority of the forty-second Congress attempted to achieve via section

one of the Ku Klux Klan Act of 1871. While pronouncements of section
1983's primary purposes are subject to some extent to the same critique

as specific exegeses of legislative intent relative to narrow issues of sec-

tion 1983 construction,
80

as broader, animating purposes, they are more

readily distilled from the fact of the Act's passage, its language and the

creation of federal liability and jurisdiction where none had previously

existed. In addition to the fact that the extrapolation of section 1983's

overriding purposes is a more primary task which relies on more readily

apparent data than that previously discussed, there is also substantial, if

not unanimous consent by the Court as to what these purposes are. Ma-
jority and dissent universally identify section 1983's fundamental purposes;

however, the balance struck among them and the extent to which they
are forced to yield to competing policies is hardly consistent from case

to case.
81

From the United States Supreme Court's section 1983 decisions, four
basic purposes of section 1983 emerge:

/. Section 1983 Was Intended to Make a Federal Forum Available
for the Vindication of Civil Rights.—Section one of the Ku Klux Klan
Act of 1871 created a civil cause of action, subsequently codified as sec-

tion 1983; it granted original jurisdiction to federal courts to determine

'"See Patsy v. Board of Regents, 457 U.S. 496, 507 (1982); Newport, 453 U.S. at

266; Owen, 445 U.S. at 675; Monell, 436 U.S. at 675-76; id. at 719-20 (Rehnquist, J.,

dissenting); Wood v. Strickland, 420 U.S. 308, 316-17 n.8; Monroe, 365 U.S. at 193 (Harlan,
J., concurring).

%0See supra text accompanying notes 48-50.

"While the basic purposes of section 1983 are universally acknowledged, some members

of the Court maintain that one or more of these purposes have been completely fulfilled
and therefore that they should cease to be guides to construction. This is most apparent

in cases raising issues of federal jurisdiction over section 1983 claims. Frequently, to sup-

port restricting access to federal courts, it is asserted that federal jurisdiction was granted

solely because the state courts could not be trusted to protect civil rights, but that these

courts are now fully capable of protecting these rights. Thus, it is argued, the purpose
to provide a federal forum no longer has the same compelling force in modern litigation
under section 1983. The result in cases arguing on this basis frequently is that federal jurisdic-
tion over civil rights claims is undermined or given a restrictive interpretation. See Allen,

449 U.S. at 99; Huffman v. Pursue Ltd., 420 U.S. 592, 605-06 (1975); Railroad Comm'n
of Texas v. Pullman Co., 312 U.S. 496, 501 (1941). For cases wherein the purpose to pro-

vide a federal forum was given greater deference, see Patsy, 457 U.S. at 503; Mitchum,

407 U.S. at 239; England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411,
415 (1964).



1986] SECTION 1988 681

actions arising under the Act of 1871. This jurisdictional grant is now
codified at 28 U.S.C. section 1343. 82 That the 1871 act was intended to
create federal jurisdiction is beyond contention. 83

2. Section 1983 Was Intended to Make Liable Persons Who Acted
Under Color of State Law to Deprive Individuals of Their Civil Rights —
Prior to passage of section two of the Civil Rights Act of 186684 and
section one of the Ku Klux Klan Act of 1871, persons clothed with the
authority of the state could violate any individual's civil rights with im-

punity. Unless state courts intervened in such situations, which was
especially unlikely in southern states, the aggrieved party was without

recourse. Congressional efforts to remedy such injustice, begun by passage

of section two of the Civil Rights Act of 1866, continued with enactment
of section one of the Ku Klux Klan Act. The latter expressly made state
officials answerable in federal court for conduct which violated federal

law. Although the specific parameters of state officials' liability were not

articulated in a comprehensive manner by either statute, the essential pro-
position that section 1983 was intended to render state actors accountable

is clearly established.
85

g228 U.S.C. § 1343 (1982) provides:

The district courts shall have original jurisdiction of any civil action authorized

by law to be commenced by any person:

(1) To recover damages for injury to his person or property, or because of the
deprivation of any right or privilege of a citizen of the United States, by any

act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;

(2) To recover damages from any person who fails to prevent or to aid in prevent-
ing any wrongs mentioned in section 1985 of Title 42 which he had knowledge

were about to occur and power to prevent;

(3) To redress the deprivation, under color of any state law, statute, ordinance,
regulation, custom or usage, of any right, privilege or immunity secured by the

Constitution of the United States or by any Act of Congress providing for equal

rights of citizens or of all persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or other relief under any Act of
Congress providing for the protection of civil rights, including the right to vote.

Section 1343 was relied upon frequently in section 1983 cases prior to the elimination of

28 U.S.C. section 1331 's jurisdictional amount. Because federal question jurisdiction no

longer requires a minimum amount in controversy, section 1983 actions are frequently brought

pursuant to section 1331 as well as 1343.

"See Patsy, 457 U.S. at 503-04; Parratt v. Taylor, 451 U.S. 527-34 (1981); Preiser

v. Rodriguez, 411 U.S. 475, 513-14 (1973) (Brennan, J., dissenting); Mitchum, 407 U.S.

at 240-41; England, 375 U.S. at 415; McNeese v. Board of Education, 373 U.S. 668, 671-72

(1963); Monroe, 365 U.S. at 252-53 (Frankfurter, J., dissenting).

"Section 2 of the Civil Rights Act of 1866 created criminal sanctions against persons

who acted under color of state law to deprive another of the rights enumerated in section
1 of that Act. Section 2 was the prototype for section 1 of the Ku Klux Klan Act of 1871,
which created a private action for damages and other relief to redress the deprivation of

constitutional rights. See infra text accompanying notes 178-88.

"See Newport, 453 U.S. at 259; Monell, 436 U.S. at 682; Imbler v. Pactman, 424

U.S. 409, 433 (1976) (White, J., concurring); Scheuer, 416 U.S. 243; Monroe, 365 U.S. at 172.



682 INDIANA LAW REVIEW [Vol. 19:665

3. Section 1983 Was Intended to Alter the Balance of Power Be-

tween the State and the Federal Governments.—The grant of federal
jurisdiction to federal courts to hear causes of action against officials of

the states necessarily involved an alteration of power in the republic in

favor of the federal government.
86 Like other grants of federal jurisdic-

tion,
87

the creation of competency in the federal courts to enforce civil

rights inserted the federal government—by operation of its legislative and
judicial branches

88—between the people and the states. 89 Further, in
creating liability attaching to state officials, section 1983 superseded state

laws that conferred sovereignty on such persons. 90 The interest of the state
in immunizing its agents was forced to yield to the civil rights of the individual.

Without federal enforcement, the Civil Rights Acts and the Reconstruc-

tion Era amendments would have been without effect. 91 Post-Civil War
legislatures established federal jurisdiction where there had been none and

expressly provided for national enforcement of newly emerged rights. This

national civil rights enforcement and vindication scheme was targeted ex-

clusively at persons who acted pursuant to state authority. Necessarily,

"This balance of power between the state and federal government is known as

federalism. See Gressman, supra note 13, at 1336.
S728 U.S.C. § 1331 (1982) (federal question jurisdiction); 28 U.S.C. § 1332 (1982)

(federal diversity jurisdiction); see also 28 U.S.C. § 1441 (1982) (federal removal jurisdiction).

"It should be noted that the power of the executive was also brought to bear in this

alteration of federalism. The Act of 1866 and the Act of 1871 clearly contemplated that

when the Civil Rights Acts were not complied with by the states, the President could call

out the militia and force the states to submit to these federal laws. See Civil Rights Act

of 1866 § 9; Act of 1871, § 3. See also Cong. Globe, 39th Cong., 1st Sess., 476 (remarks

of Sen. Trumbull). An amendment to delete this provision in the Act of 1866 was rejected
by the Senate. Id. at 606. After the Act of 1866 was passed by the House of Represen-

tatives, on March 9, 1866, Mr. LeBlond, a vehement opponent to the bill noted what he

perceived to be the Act's effect on federalism: "I desire to move to amend the title of

the bill by making it read, 'A bill to abrogate the rights and break down the judicial system
of the states.' " Id. at 1367. His comment was declared to be out of order. Id.

"The people of the United States enjoy dual citizenship. They are citizens of their

respective states as well as national citizens. Gressman, supra note 13, at 1336.
90The Supremacy Clause provides: "This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution

or Laws of any State to the Contrary notwithstanding.", U.S. Const, art. VI cl. 2. State

law defenses are not available in federal suits alleging violations of federal law. The im-

munity cases, however, have served to bridge section 1983 with some state law defenses.
See infra text accompanying notes 98-148.

"Regarding the Act of 1866, Mr. Wilson remarked in the House of Representatives:

"If the states would all observe the rights of our citizens there would be no need of this

bill .... But, sir, the practice of the states leaves us no avenue of escape, and we must
do our duty by supplying the protection the states deny." Cong. Globe, 39th Cong., 1st

Sess. 1117-18 (1866); see also id. at 600 (remarks of Sen. Trumbull); id. at 603 (remarks

of Mr. Lane).



1986] SECTION 1988 683

it involved an alteration of the balance of power in the republic affected

by constitutional amendment and federal legislation. 92 The fact that sec-
tion 1983 affected federalism to the derogation of state autonomy is clearly

established.
93

4. Section 1983 Was Intended to Deter the Violation of Civil
Rights.—The Reconstruction Era congresses, by creating criminal94 and
civil

95
penalties for the violation of individual rights, erected a deterrent

against future abrogations of those rights. Section 1983's deterrent pur-

pose has proven influential in cases wherein the issue of damages is

presented to a court. Courts have consistently determined that substantial

monetary and injunctive relief is available in section 1983 actions because

the availability of such damages creates an incentive for states to comply

with civil rights laws and such relief deters violations. 96

In all cases construing section 1983, the Court has weighed its result

against these identifiable purposes of section 1983. Not only has the Court

considered the purposes of section 1983 as, to some degree, controlling
its interpretation of that statute; on a more theoretical level courts should

be animated by section 1983's discernible purposes. 97 Any construction
of section 1983 must accommodate its broadly stated goals.

"Section 2 of the thirteenth amendment was seen by some legislators as conferring

upon Congress only the power necessary to eliminate slavery. Hence the constitutionality

of the Civil Rights Act of 1866, which concededly did more than eliminate slavery, was

questioned. See Cong. Globe, 39th Cong., 1st Sess. 479 (remarks of Sen. Cowan); id. at

576 (remarks of Sen. Davis); veto message of President Johnson, id. at 1681. To resolve
this constitutional issue, section 5 of the fourteenth amendment was passed by Congress and

adopted by the states in 1868. Congress thereby has broad power to legislate pursuant to the

substantive provisions of the fourteenth amendment. The Act of 1866 was then reenacted pur-

suant to the fourteenth amendment in the Act of May 31, 1870, ch. 114, § 18, 16 Stat. 144.
The Ku Klux Klan Act was passed pursuant to section 5 of the fourteenth amendment.

"See Patsy, 457 U.S. at 503; Allen, 449 U.S. at 99; Quern, 440 U.S. at 342; Mitchum,

407 U.S. at 238-39, 242; Younger v. Harris, 401 U.S. 37, 62 (1971) (Douglas, J., dissenting).
94
Civil Rights Act of 1866, ch. 31, § 2, 14 Stat. 27 (1866). See infra text accompany-

ing notes 178-88.

"Ku Klux Klan Act of 1871, ch. 22, § 1, 17 Stat. 13 (1871). See infra text accompa-
nying notes 228-37.

"See Smith, 461 U.S. at 49; Newport, 453 U.S. at 268; Mitchum, 407 U.S. at 242;

Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978); Carey, 435 U.S. at 256-57. Also, in

1976 Congress passed the Civil Rights Attorney's Fees Act, which was added to 42 U.S.C.

§ 1988 by amendment in 1976. Motivating this legislation was the desire to make it easier

for plaintiffs to bring meritorious civil rights actions and thereby deter violations under

color of state law.

"Professor Fiss argues that the prescriptive force of a statute, i.e., the purpose for

which it was created, should be "given concrete meaning and expression" through the pro-

cess of adjudication. Fiss, supra note 48, at 751. He argues that courts should focus on
what a statute was meant to do, its purpose, rather than statements by the legislators of

the way things were at the time of its passage. This attention to a statute's prescriptive



684 INDIANA LA W REVIEW [Vol. 19:665

E. Summary of Statutory Construction Problems

In Monroe v. Pape, the Supreme Court, without establishing a rule
of construction for section 1983, established a model for such adjudica-

tion. The acknowledged elements in this interpretive process are: the history

of section 1983—both congressional debates and the common law of
1871—and the purposes of section 1983. Plain meaning has little utility
as a rule of construction in these cases. In addition, and without much
elucidation, developments in law subsequent to 1871 are also considered.

The latter are explored more fully in the next section of this article.
History is a very suspect springboard for resolution of modern ques-

tions of construction arising under section 1983. It is deficient and usually

too tangential to be a fruitful source of law in these matters. Further,

it is easily manipulated and attributes false omniscience and objectivity

to the legislators of 1871.

The purposes of section 1983 are more legitimate as sources of law

because they are capable of more objective ascertainment. The apparent
consensus as to section 1983's fundamental purposes further affirms this

legitimacy. However, as the next part of this Article will demonstrate, the

force lends objectivity to the process of adjudication by establishing the parameters for

interpretation. "Bounded objectivity is the only kind of objectivity to which the law—or
any interpretive activity—ever aspires and the only one about which we care. To insist on
more, to search for the brooding omnipresence in the sky, is to create a false issue." Id.

at 745-46. Professor Fiss argues that objectivity in construction is possible in this manner.

He disagrees with advocates of the "nihilist" school whom he characterizes as insisting
that there was no objective element in the interpretive process. Professor Brest responded

to Professor Fiss by attempting to demonstrate that objectivity in interpretation is impossi-

ble because of the inability of a court to discern the intent behind statutes. Brest, Misconceived

Quest, supra note 47, at 209-17. Even Professor Brest, however, acknowledges that moderate

originalists, those "concerned with the framers' intent on a relatively abstract level of

generality—abstract enough to permit the inference that it reflects a broad social consensus
rather than notions peculiar to a handful of the adopters . . . ," have the best argument

for objectivity. Id. at 214. Section 1988 places express bounds on courts in adjudicating

section 1983 and expressly limits the respective roles of federal law, state law, and the pur-

poses of section 1983 in application of that provision. See infra, discussion of section 1988's

role, at text accompanying notes 313-70. See generally Dickerson, Statutory Interpretation:

A Peek into the Mind and Will of a Legislature, 50 Ind. L.J. 206 (1975); Horack, In the
Name of Legislative Intention, 38 W. Va. L.Q. 119 (1932); Howell, Legislative Motive and
Legislative Purpose in the Invalidation of a Civil Rights Statute, 47 Va. L. Rev. 439 (1961);
Johnson, Retreat from the Common Law?: The Grudging Reception of Legislative History
by American Appellate Courts in the Early Twentieth Century, 1978 Det. C. L. Rev. 413;

Nunez, THe Nature of Legislative Intent and the Use of Legislative Documents as Extrinsic
Aids to Statutory Interpretation: A Reexamination, 9 Calif. W. L. Rev. 128 (1972);
Richardson, Judicial Law Making: Intent of Legislature vs. Literal Interpretation, 39 Ky.
L.J. 79 (1951); Smith, Legislative Intent: In Search of the Holy Grail, 53 Cal. St. B.J.

294 (1978); Sparkman, Legislative History and the Interpretation of Laws, 2 Ala. L. Rev.
189 (1950); Comment, Admissibility of Congressional Debates in Statutory Construction
by the United States Supreme Court, 25 Calif. L. Rev. 326 (1937).



1986] SECTION 1988 685

Court has not been consistent in attaching importance to the purposes

of section 1983 when accommodating those purposes to conflicting values
and policies. Fulfillment of the purposes of section 1983 has been a

measure against which decisions are evaluated rather than a source for

results. Instead, history is emphasized as a primary source of law for sec-

tion 1983 interpretation.

The next section of the Article demonstrates the use that has been

made of section 1983's history and purposes. A review of some impor-
tant section 1983 decisions shows that the Court has been tremendously

influenced by policies and values quite distant from the legal horizon of

1871 and the purposes of section 1983. The immunity cases make it abun-
dantly clear that section 1983 adjudication has involved the foregoing

elements. What is lacking however is an articulation, as a matter of policy
and process, of a method for the interaction of these various elements.

III. The Immunity Cases

In many, if not most, cases construing section 1983, the Supreme
Court has undertaken a two-tiered approach to the application of section

1983. First, the Court has expressly scoured the history and purposes of

section 1983 focusing on the debates and the common law of 1871 with
only passing comment on the purposes of section 1983. Second, the Court
has considered and been influenced by legal developments and policy con-

siderations subsequent to section 1983. The Court has balanced the

historical data against other policy considerations and has rendered deci-

sions which are essentially federal common law decisions. The immunity
cases provide the clearest examples of this de facto section 1983 analysis.

98

A. Pierson v. Ray

A majority on the Supreme Court concluded in Pierson v. Ray" that
judges were absolutely immune from liability under section 1983. Fur-
ther, the Court concluded that police officers had a qualified, or "good
faith," immunity from section 1983 liability. 100

™See Note, The Proper Scope of the Civil Rights Acts, 66 Harv. L. Rev. 1285, 1295-96

& n.54 (1953).
"386 U.S. 547 (1967).
,00

Id. at 555-57. The first of the major immunity decisions was Tenney v. Brandhove,

341 U.S. 367 (1951), which held that legislators, as a matter of political history, were ab-

solutely immune from section 1983 liability for conduct relevant to their legislative func-

tion. Justice Frankfurter's opinion focused on art. 1, section 6 of the United States Constitution,

the Speech and Debate Clause, to reason that he could not believe Congress in 1871 meant

to impinge on the tradition of legislative immunity grounded in the Speech and Debate

Clause. Id. at 373, 376. Justice Douglas dissented and argued that if and when the conduct

of a legislator went beyond the federal law, that legislator should be liable under the Civil

Rights Act. Id. at 383 (Douglas, J., dissenting).



686 INDIANA LAW REVIEW [Vol. 19:665

Chief Justice Warren's majority opinion first deduced that judicial

immunity was firmly established at common law in 1871: "Few doctrines
were more solidly established at common law than the immunity of judges
from liability for damages for acts committed within their judicial jurisdic-

tion."
101 He then noted that "[t]he common law has never granted police

officers an absolute and unqualified immunity." 102 While the question of

judicial immunity was settled by the existence of an absolute immunity

at common law in 1871, the non-existence of police officer immunity did
not resolve that issue for the purposes of section 1983.

Instead of concluding that police officers were not immune because
they were not immune in 1871, the Court fashioned a qualified immunity
based on the "good faith" of the police officer. This good faith defense

was dictated by the "prevailing view." 103 Chief Justice Warren referred

to the Restatement of Torts
104 and to other twentieth century tort treatises

and cases to argue that the good faith defense was generally available

to police officers under modern tort law. Relying on the admonition in

Monroe that section 1983 "should be read against the background of tort
liability,'"

05
the Court held that the defense of good faith "is also available

to [police officers] in the action under § 1983.

"

,06
Clearly, the creation

of a good faith defense for police officers in section 1983 actions was

not required by the plain meaning of section 1983 nor by its history. 107

Rather, the reasonableness of this modern defense to tort suits coupled
with the belief in the "fairness" of the defense controlled.

Justice Douglas, dissenting, pointed out that the plain meaning of

section 1983 allowed no defense of immunity in favor of judges or police

officers.
108 He argued that section 1983 was a remedial statute which was

to be broadly construed.' 09 While Chief Justice Warren looked for ex-
press abrogation of judicial immunity by section 1983, Justice Douglas

would have required express creation of such immunity." Regarding the

,0,
Pierson, 386 U.S. at 553-54. Chief Justice Warren cited Bradley v. Fischer, 80 U.S.

(13 Wall.) 335 (1871), to show that judicial immunity existed at common law in 1871. Bradley,
however, did not rely on common law decisions as much as on the functional requirement
that judges be immune from liability for judicial conduct to assure the independence of
the judiciary. Id. at 347. The emphasis on the requirement that coordinate branches of

government function independently of each other was grounded on the notion of separation

of powers.
,02

Pierson, 386 U.S. at 555.
10
'Id.

t04
Id.

,oi
Id. at 556.

104
Id. at 557.

l07Chief Justice Warren did not cite the legislative debates, but rather relied on the

common law backdrop in which the 42nd Congress acted.
'°*Id. at 559 (Douglas, J., dissenting).
I0
7d. at 560-61 (Douglas, J., dissenting).

"°Id. at 563 (Douglas, J., dissenting).



1986] SECTION 1988 687

separation of powers argument, Justice Douglas responded that the federal

legislature had power pursuant to section five of the fourteenth amend-

ment to make state judges liable. 1 " Although he argued that judges were
liable for intentional conduct, he would nonetheless have allowed honest

mistake as a defense." 2

B. Scheuer v. Rhodes

Chief Justice Burger, writing for a unanimous Court," 3 concluded

in Scheuer v. Rhodes114 that state executive officers did not have an ab-
solute immunity from section 1983 liability; like police officers, they had

a good faith defense to such actions." 5 The decision briefly considered
English common law which conferred an absolute immunity on the king
and his chief officials; the Court noted that this immunity had been

"gradually eroded. ,,M6

No attempt was made to determine 1871 rules pertaining to executive
liability. Rather, Chief Justice Burger stated: "Final resolution of this ques-

tion must take into account the functions and responsibilities of these par-

ticular defendants in their capacities as officers of the state government as

well as the purposes of 42 U.S.C. § 1983."

"

7 The Court created a doctrine

of qualified immunity for executive officials based on the "prevailing

view,"" 8 and the implicit reasonableness of executive, qualified immunity." 9

u,
Id. at 565 (Douglas, J., dissenting).

u2
Id. at 566 (Douglas, J., dissenting). In this regard, Justice Douglas was also motivated

by concerns for fairness. Section 1983 does not require a showing of intent to establish liability.

"'Justice Douglas took no part in the deliberations or decisions in the case.
" 4416 U.S. 232 (1974).

"7</. at 247.
11
"Id. at 239 n.4.

117
Id. at 243.

"7tf. at 245.
n9

Id. at 246. The Court noted that executives were analogous to legislators and judges

in support of the position that they should all enjoy some immunity. To the extent that
judicial and legislative immunity was grounded on separation of powers principles, it is

somewhat surprising that executives were not given a similar, absolute, immunity. It would

seem that because the executive is the third coordinate branch of government, concerns

for the independent functioning of the different branches of government would have com-

pelled the same result vis-a-vis executive officials. The distinction lies in the fact that in

Tenney and Pierson, the Court could point definitively to 1871 case law to support the

immunity as pre-existing section 1983 and as not expressly abrogated by that statute. The

Court, apparently, was not presented with such definitive case law regarding the status of

executive liability in 1871. Instead, the Court fashioned a doctrine of qualified immunity

for such officers based on its sense of fairness to such persons and the need to protect

their offices while accommodating the purpose of section 1983 to make such persons liable.

Also, given that judges and legislators were absolutely immune, conferral of similar protec-

tion against liability upon state executives could have seriously eroded section 1983's utility,

for then there would have been virtually no one left who acted literally under color of
state law.



688 INDIANA LAW REVIEW [Vol. 19:665

While exercising common law powers and creating this defense, Chief
Justice Burger did not go so far as to establish absolute immunity. He
concluded, "[section] 1983 would be drained of meaning were we to hold
that the acts of a governor or other high executive officer have 'the quality

of a supreme and unchangeable edict, overriding all conflicting rights of

property and unreviewable through the judicial power of the Federal

Government. '
,,,2 °

The Court in Scheuer balanced the systemic demand for an indepen-
dent executive branch, unfettered by potential liability for its executive

conduct,
1 21

against section 1983's purpose to " 'give a remedy to parties

deprived of constitutional rights, privileges and immunities by an official's

abuse of his position/
" 122

C. Wood v. Strickland

Justice White's majority opinion in Wood v. Strickland123 concluded
that school boards had a limited good faith immunity from section 1983

liability. Only if the school board, through its members, knew or should
have known that its conduct would violate constitutional rights, or if it
acted with malicious intent, was it liable for damages in section 1983 ac-

tions.
124

The Court's decision began by tracing the development of good faith

immunity in section 1983 actions through its decisions in Tenney v. Brand-

hove, Pierson, and Scheuer. Rather than relying on the common law of
1871 or the legislative debates,

125
the Court stated, "Common law tradi-

tion, recognized in our prior decisions [which did not deal with school

boards], and strong public-policy reasons also lead to a construction of

§ 1983 extending a qualified good-faith immunity to school board members

from liability for damages under that section." 126

The Court borrowed the rather superficial historical inquiries of Pier-

son and Scheuer regarding judicial and executive immunity to conclude

that it was justified in granting some immunity to school boards. Primarily,
the Court was motivated by concerns for reasonableness, fairness, and

public policy:

,20
Id. at 248 (citation omitted).

,2i
Id. at 241-42.

,21
Id. at 243 (citation omitted).

,23420 U.S. 308 (1975).
124

Id. at 322.

'"Justice White's opinion did not attempt to deduce specifically what the status of

school board liability had been in 1871. Although he referred to state law decisions on

this issue, all but one of the decisions he cited were post 1871 opinions. Id. at 318 n.9.
Ub

Id. at 318,



1986] SECTION 1988 689

Tenney v. Brandhove, Pierson v. Ray, and Scheuer v. Rhodes
drew upon a very similar background and were animated by a
very similar judgment in construing § 1983. Absent legislative

guidance, we now rely on those same sources in determining
whether and to what extent school officials are immune from
damage suits under § 1983. We think there must be a degree of
immunity if the work of the schools is to go forward. 127

The standard of good faith immunity created for school boards represents
a judicial balancing of the systemic demand for independent functioning 128

against the remedial purposes of section 1983.' 29

Justice Powell dissented to the standard of qualified immunity created

by the majority. Together with Chief Justice Burger and Justices Blackmun
and Rehnquist, he would have granted school boards qualified immunity
on par with executive officials as articulated in Scheuer. 130

D. Imbler v. Pachtman

A majority of the Court concluded in Imbler v. Pachtman iU that pro-
secutors enjoyed an absolute immunity from section 1983 liability for pro-

secutorial conduct. Justice Powell's majority opinion began by noting,
4 The statute [section 1983] . . . creates a species of tort liability that on
its face admits of no immunities. ,,l32 Next, his opinion established that

the modern practice was to grant prosecutors absolute immunity for acts

relevant to the initiation and prosecution of criminal proceedings. 133 Hav-

ing established this "modern rule ,, of prosecutorial immunity, Justice

Powell indicated that an historical inquiry was mandated by prior Supreme

Court immunity decisions. 134 He noted: "The first American case to ad-
dress the question of a prosecutor's amenability to such an action was

Griffith v. Stinkard, 146 Ind. 117, 44 N.E. 1001 (1896)."
135 Thus, to the

,2
7rf. at 320-21.

'"School boards do not constitute one of the three coordinate branches of govern-

ment; therefore, separation of powers concerns are not directly implicated. But, analogous

concerns for autonomy, and a tacit belief that independent functioning is preserved if con-

cern for liability is minimized were considered in the decision.
l29The Court said, "[A]ny lesser standard would deny much of the promise of section

1983." Id. at 322.
,i0

Id. at 327-31 (Powell, J., dissenting).
m424 U.S. 409 (1976).
n2

Id. at 417.

'"Justice Powell's authority for this modern rule was twentieth century, federal courts

of appeal decisions. Id. at 420 n.16.
' iA

Id. at 421. This historical inquiry is, somehow, seen as guarding against the exercise

of judicial fiat in these cases. Id.
ni

Id.



690 INDIANA LA W REVIEW [Vol. 19:665

extent Justice Powell felt obliged in Imbler to undertake a historical in-

quiry, it was launched from a post- 1871 state court decision. This historical

inquiry considered subsequent state and federal courts' treatment of the

issue of prosecutorial liability.
136

Justice Powell then returned to the "well

settled,' ' modern, common law rule of prosecutorial immunity137 and stated
that the inquiry was "whether the same considerations of public policy

that underlie the common law rule likewise countenance absolute immunity
under § 1983.

"

,38

The majority in Imbler focused primarily on the heavy cost to the

criminal justice system if prosecutors were potentially liable for conduct

related to the performance of their jobs. 139 The majority never really con-

sidered the purposes of section 1983 as a counter-balance:

[T]his immunity does leave the genuinely wronged defendant

without civil redress against a prosecutor whose malicious or

dishonest action deprives him of liberty. But the alternative of

qualifying a prosecutor's immunity would disserve the broader

public interest. It would prevent the vigorous and fearless perform-

ance of the prosecutor's duty that is essential to the proper func-

tioning of the criminal justice system. 140

Anything less than absolute immunity for prosecutorial conduct in sec-

tion 1983 suits was viewed as impairing the prosecutor's independent ex-

ercise of judgment and thus undermining the criminal justice system. 141

Justice White, with Justices Brennan and Marshall, concurred that

prosecutors had some immunity from suit, but disagreed that this im-

munity was absolute. 142 The concurrence considered the purposes of sec-
tion 1983 and maintained that only qualified immunity should be available

because absolute immunity denied the "promise of section 1983." 143 Justice

White agreed with the majority that the integrity of the criminal justice

system had to be preserved by clothing the prosecutor with absolute im-

munity regarding the decision to initiate criminal prosecution. 144 To rebut
the majority's historical analysis, he referred to other common law deci-

nb
Id. at 422-24.

ni
Id. at 424.

nt
Id.

n9
Id. at 424-27.

>*°Id. at 427-28.
l4 The Court left open, however, the possibility that prosecutors may be criminally

liable. Id. at 429.
] * 2

Id. at 434 (White, J., concurring).
I4
7d. (White, J., concurring).

,44
Id. at 438 (White, J., concurring). The concurrence also agreed with the majority

that the prosecutor should be absolutely immune for damages arising from testimony that
the prosecutor knew or should have known was false. Id. at 440 (White, J., concurring).



1986] SECTION 1988 691

sions to show that this immunity went no further. 145 Justice White ex-
pressly rejected the proposition that the forty-second Congress incorporated

into section 1983 all immunities existing at common law. 146 The concur-
ring justices would have found that prosecutors were liable for the un-
constitutional suppression of exculpatory evidence alleged in Imbler. 147

E. Conclusions Regarding the Immunity Cases

The immunity decisions present a body of cases construing section
1983 wherein the elements involved in its interpretation are most clearly
exposed for analysis. The elements that have informed the Court's con-
struction in these cases are the common law, both historical and current,
the legislative debates, consideration of public policy vis-a-vis the poten-

tial systemic costs of the Court's construction of section 1983, and the
purposes of section 1983. The Court has not treated the express text of
the statute, admitting of no immunities, as dispositive.

From case to case the balance struck among these factors in the con-
struction of section 1983 varies. It is clear from the crazy-quilt interplay

of policy, common law, and the purposes of section 1983 that the Court
in the immunity cases has engaged in the creation of common law.
Fashioning an extensive immunity doctrine, the Court has selectively chosen

from the common law of 1871, modern tort law, public policy, and the
purposes of section 1983. The Supreme Court has, implicitly and correct-

ly, recognized that the legal horizon of 1871 and the language of section

1983 do not resolve the immunity issues and has sought guidance from

developments in state and federal law and public policy. This typifies the

process of construction used by the Supreme Court in its more significant

decisions construing section 1983.
148

"'Id. at 437-41 (White, J., concurring). The concurrence, like the majority, referred

to post 1871 case law.
14
*Id. at 441-42 (White, J., concurring).

,4
7rf. at 443 (White, J., concurring); see also Smith v. Wade, 461 U.S. 30 (1983).

"[I]n Imbler we recognized a common-law immunity that first came into existence 25 years
after § 1983 was enacted." Id. at 35 n.2.

""While the immunity cases present the clearest example of this process of tacit

acknowledgment of the deficiency of section 1983 and its legislative history and subsequent

recourse to later developments in law and public policy, many Supreme Court decisions
"construing" the language of section 1983 have engaged in a similar process. See Patsy,

457 U.S. at 513-14 (recitation of twentieth century decisions as being influential); Newport,

453 U.S. at 261-62 (recitation of post 1871 cases to support position that punitive damages

were not available against a city in a section 1983 action); Owen, 445 U.S. at 657 (section

1983 opinions should reflect changes in notions of governmental responsibility over the last

century); Carey, 435 U.S. at 255-57, 258 n.13 (common law of damages relevant to section

1983); Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975) (Younger v. Harris applied to

section 1983 litigation in federal court); Moor v. County of Alameda, 411 U.S. 693, 703
(1973) (section 1988 allows consideration of evolving common law in section 1983 cases);



692 INDIANA LAW REVIEW [Vol. 19:665

The next section of this article will discuss 42 U.S.C. section 1988

as a substitute for the relatively unguided interplay of history, policy and

the purposes of section 1983 in these cases. Section 1988 accommodates

all the factors previously identified as involved in the construction of sec-

tion 1983 while providing a road map for their use. Section 1988 also
justifies and limits the borrowing of contemporary developments in state

and federal law.

IV. Section 1988 in Context

A. Introduction

When a court is called upon to adjudicate a matter that is not pro-
vided for in the text of section 1983 nor in its contemporaneous debates,

the historical inquiry frequently becomes a search for the status of that

issue at 1871 common law. Even when the court is arguably interpreting
the specific language of the statute (for example the meaning of "per-

son"),'
49

it has been demonstrated that the inquiry is often more far-

reaching than mere textual definition. Always, the result is informed by

consideration of extrinsic policies.

The interplay of the elements in section 1983 construction differs from

case to case without any apparent rhyme or reason resulting in virtually

unbounded judicial creation of federal common law. This provides little
guidance to lower courts attempting to deal with novel issues arising under

section 1983.
' 50

It also gives appellate courts relatively unrestricted license

continually to readjust the balance among the various elements in the in-
terpretation of section 1983.

Originally enacted as section three of the Civil Rights Act of 1866,' 51

section 1988 places boundaries on the exercise of judicial power in the

construction of section 1983.' 52 It prescribes a method of construction

for section 1983.

Prieser v. Rodriguez, 411 U.S. 475, 485 (1973) (evolution in the law of habeas corpus is

relevant to the historical inquiry); Sullivan v. Little Hunting Park, 396 U.S. 229, 240 (1969)
(section 1988 allows consideration of state law in construing section 1983); Monroe, 365
U.S. at 187 (section 1983 should be read against the background of tort liability).

,49
See supra text accompanying notes 39-40.

I50
lndeed, it is most important to focus on how trial courts deal with these issues because

very few cases reach the appellate level.

'"Entitled "An Act to protect all Persons in the United States in their Civil Rights,
and furnish the Means of their Vindication," the Civil Rights Act of 1866 was passed by
two-thirds vote of the House and Senate, overriding the veto of President Johnson. Cong.
Globe, 39th Cong., 1st Sess. 196 (1866) (House of Representative's vote); 1809 (senate vote).

Passage of the Civil Rights Act of 1866 followed closely upon the enactment of the thir-
teenth amendment and its ratification by the states. See 1 Schwartz, Statutory History
of the United States—Civil Rights (1970), for a discussion of other major civil rights
legislation during the Reconstruction Era.

,52
42 U.S.C. § 1988 (1982) provides:

The jurisdiction in civil and criminal matters conferred on the district courts

i



1986] SECTION 1988 693

It is the thesis of this article that section 1988 supplies a rule of

statutory construction for section 1983. '" Section 1988 directs that when
section 1983 is deficient, the court should fill that gap with other ap-

plicable federal law, provided that such law serves the purposes of sec-

tion 1983. If there is no applicable or suitable federal law, the court is

directed to apply the law of the state where it sits, again, only if such

law is consistent with the purposes of section 1983.' 54

The use of section 1988 as a rule of construction for section 1983
fosters uniformity in the protection of civil rights while according deference

to state law.
155

It is the position of this author that section 1988 represents

a compromise between uniformity and comity. 156 Recognition that sec-

tion 1988 is a rule of construction for section 1983 is necessary to preserve

this compromise. Section 1988 maintains the balance struck between state

and federal power in the redefined federalism of the Reconstruction Era.

By providing a congressionally mandated approach to the construction

of section 1983, section 1988 also tempers policy-based excesses in the

construction of section 1983.' 57

by the provisions of this Title, and of Title "CIVIL RIGHTS" and of Title
"CRIMES", for the protection of all persons in the United States in their civil
rights, and for their vindication, shall be exercised and enforced in conformity

with the laws of the United States, so far as such laws are suitable to carry the

same into effect; but in all cases where they are not adapted to the object, or

are deficient in the provisions necessary to furnish suitable remedies and punish

offenses against law, the common law, as modified and changed by the constitu-
tion and statutes of the State wherein the court having jurisdiction of such civil

or criminal cause is held, so far as the same is not inconsistent with the Constitu-

tion and laws of the United States, shall be extended to and govern the said courts

in the trial and disposition of the cause, and, if it is of a criminal nature, in

the infliction of punishment on the party found guilty. In any action or pro-

ceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of

this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.] or title VI of
the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], the court, in its discre-

tion, may allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs.

The latter part of 42 U.S.C. § 1988 is known as the Civil Rights Attorney's Fees Act.

It was added to section 1988 by amendment in 1976.
1 "Arguably, it supplies a rule of construction for all civil rights legislation, both civil

and criminal. The language of section 1988 states that all provisions under the title of "Civil

Rights" in the United States Code are subject to its command.
,54
This tiered process of construction is described in detail infra at text accompanying

notes 313-69.

'"Both Professors Eisenberg and Kreimer apparently view national uniformity and section

1988's language to apply state law as mutually exclusive. This is not always the case

—

deference to one does not necessarily signal the demise of the other. Rather, it is the essence

of compromise that competing interests co-exist by each making some sacrifice. Section

1988 is a congressionally mandated compromise which it is a court's responsibility to enforce.

'"See infra discussion at text accompanying notes 209-24.
,57"The question is whether we can insist that adjudication is an interpretive activity

and still find that it possesses an objective character in the face of these differences. I think

we can." Fiss, supra note 48, at 750-51. Justice Douglas is quoted as having said "With



694 INDIANA LAW REVIEW [Vol. 19:665

The next section of this article discusses the Civil Rights Act of 1866

with special emphasis on the first three sections of that Act. Section three,

predecessor to section 1988, was an important enforcement provision of

the Act of 1866. The next section also discusses the original text of sec-

tion one of the Ku Klux Klan Act, section 1983's predecessor. Section
one of the Ku Klux Klan Act expressly incorporated the enforcement pro-
visions of the Civil Rights Act of 1866.

Professors Kreimer and Eisenberg have both relied on historical

arguments to urge that section three of the Act of 1866, and its directive

to federal courts to apply state law, be narrowly construed. 158 Professor

Kreimer argued that in 1866 the "common law*' was understood to refer
to a universal common law which was supplemented and modified by
federal court judges who exercised general federal common law powers.
Kreimer argued that section 1988's predecessor did not require that state

decisional law be applied in civil rights cases because the statute's reference

to "common law" invited federal courts to expound common law under
the then existing doctrine of Swift v. Tyson.

159
Professor Eisenberg argued

that section three, when viewed as part of the Act of 1866, only made
sense when applied to actions commenced in state court and removed to
federal court pursuant to a removal provision in the Act of 1866. 160

It is the position of this author that the history and text of section

three of the Act of 1866, and its subsequent enactment in the Ku Klux
Klan Act, do not support such deviations from its apparently clear and

expressed directive that state law be applied in federal civil rights actions.

B. The Civil Rights Act of 1866

1. Passage of the Act.—The Civil Rights Act of 1866 was passed
over the presidential veto of Andrew Johnson. 161 Its passage, despite heated

five votes we can do anything." Id. at 758. Abuse comes in the manner in which the balance

is struck between competing values in the adjudication of section 1983.

""Only a few other articles have dealt with section 1988. See Theis, Shaw v. Garrison:

Some Observations on 42 U.S.C. § 1988 and Federal Common Law, 36 La. L. Rev. 681
(1976); Recent Developments, Federal Civil Rights Act Incorporates State Wrongful Death

and Survival Laws, 14 Stan. L. Rev. 386 (1962); Recent Decisions, Civil Rights—Survival

of Actions—Since Failure to Provide Suitable Remedy for Wrongful Death Renders Civil
Rights Acts Deficient Within Meaning of 42 U.S.C. § 1988 (1958), State Survival Statute

May Be Utilized to Enable Vindication of Abrogated Federally Guaranteed Civil Rights,
47 Va. L. Rev. 1241 (1961).

,i9See Kreimer, supra note 16, at 619-20.
' b0See Eisenberg, supra note 17 at 500.
161

President Johnson vetoed the bill on March 27, 1866, and returned it to the Senate
with exceptions. Cong. Globe, 39th Cong., 1st Sess., 1679-81 (1866). By a two-thirds vote
of the Senate on April 6, 1866, and a two-thirds vote of the House of Representatives
on April 9, 1866, the Civil Rights Act of 1866 became law. Cong. Globe, 39th Cong.,
1st Sess., 1679-81, 1809 (1866).



1986] SECTION 1988 695

debate in both houses of Congress and the lack of executive support,
presaged the role the Congress would play in determining the course of
Reconstruction and in protecting civil rights. Part of the impetus behind
the Act of 1866 was that Congress disagreed with President Johnson's

Reconstruction policies. 162

Senate Bill No. 61 was introduced in the upper House by Senator
Trumbull on January 5, 1866.' 63 It was supported in both houses by
Republicans who maintained that Congress possessed the power to inter-
pose itself in state government and thereby remedy grossly inequitable

circumstances which confronted the freed slaves. Democrats opposed the

bill on its merits; however, their arguments were frequently couched in
constitutional rhetoric.'

64 Moderate Republicans provided the pivotal votes

and offered the most interesting comments in the debates. These moderates
clearly endorsed the Act of 1866's ends, but questioned whether Congress

had constitutional authority to pass such a measure. Many of these in-
dividuals subsequently supported the legislation which lead to the four-

teenth amendment.' 65

Whether Congress had power to pass the Civil Rights Act of 1866

rested on construction of the thirteenth amendment and its enabling sec-

]62See discussion between Senator Wade and Senate Lane, id. at 1801-02. President
Johnson is also the only American President to be impeached by Congress. This stemmed,

in part, from intense opposition to his Reconstruction policies.
,6i

Id. at 474. The original bill also sought to enact S. No. 60, The Freedmen's Bureau

Bill, which had been vetoed by President Johnson. This veto was not overriden by Congress.

In a twist of irony, which was probably intended, many provisions of the Civil Rights Act
of 1866 were modeled on the Fugitive Slave Act of 1850, a statute whose constitutionality

had been affirmed by the Supreme Court. See id. at 475, 500, 605, 1760.
>b
*See, e.g., id. at 1120 (remarks of Rep. Rogers). He was fundamentally opposed

to granting constitutional liberties to blacks. His arguments opposing S. No. 61, however,

focused on the alleged lack of power to legislate in the manner implicated by the bill. Op-

ponents challenged that Congress had no grant of power to declare that the freed slaves

were citizens of the United States or the states, nor to tell the states how to deal with

the freedmen in matters relevant to contracts, sales of real property, etc. See infra note 172.
,65For example, Representative Bingham voted against S. No. 61 in the House of Represen-

tatives. Id. at 1367. He subsequently abstained on the vote to override President Johnson's
veto. Id. at 1861. Subsequently he supported the bill that became the fourteenth amendment.

Representative Thayer voted for S. No. 61 and also voted to override the veto. Id. at 1367,

1861. In debate, however, he indicated that a constitutional amendment would have been a

more appropriate way to achieve the ends sought by S. No. 61. Id. at 1153. Representative

Raymond expressed the same ambivalence over Congress' power to enact S. No. 61. Id. at

1266. He abstained on the vote of the bill in the House of Representatives and he voted against
overriding the Presidential veto. Id. at 1367, 1861 . Representative Shellabarger also questioned

the constitutionality of S. No. 61, but he determined to vote for it nonetheless. Id. at 1293,

1367. He also voted to override the veto of President Johnson. Id. at 1861. Shellabarger was

subsequently the House sponsor of the Ku Klux Klan Act of 1871. See also id. at 1719 (in-

troduction of bill to protect all persons in their civil rights); id. at 1782-83 (remarks of Sen.

Cowan).



696 INDIANA LA W REVIEW [Vol. 19:665

tion.
166 Democrats and moderate Republicans maintained that the thir-

teenth amendment did no more than abolish slavery. They argued that

Congress had authority under section two of the thirteenth amendment

only to enact legislation necessary and proper to the eradication of

slavery.
167

The Act of 1866, however, granted the freedmen the right, on the

same basis as whites, to contract, to buy and sell property, to sue and

be sued, and to enjoy the same benefits of state laws.' 68 This did not

create new rights per se\ rather, it required that if state law treated a

white person in one manner respecting any of the enumerated issues, a

black person was to receive the same treatment. This was aimed, among
other things, at state criminal statutes which often imposed harsher punish-

ment on non-whites and at property laws which treated blacks and whites

differently. Because the Act would effectively strike down such
discriminatory laws, some opponents saw it as superseding state criminal

and civil law. Opponents of the bill refused to find that the thirteenth

amendment provided constitutional authorization for such congressional
abrogation of state law.' 69 The perceived intrusion on the prerogatives

of the states was viewed by the bill's opponents as making serious in-

roads into state power and as eroding the federalism scheme established

by the framers of the Constitution.' 70

'"U.S. Const., amend. XIII, § 1, provides: "Neither slavery nor involuntary servitude,

except as a punishment for a crime whereof the party shall have been duly convicted, shall

exist within the United States, or any place subject to their jurisdiction." Section 2 states,

"Congress shall have power to enforce this article by appropriate legislation."
>b7See Cong. Globe, 39th Cong., 1st Sess., 476 (1866) (remarks of Sen. Saulsbury);

id. at 479, 1784 (remarks of Sen. Cowan); id. at 576 (remarks of Sen. Davis); id. at 1156

(remarks of Rep. Thornton); id. at 1265 (remarks of Rep. Davis); id. at 1266 (remarks

of Rep. Raymond); id. at 1292-93 (remarks of Rep. Bingham); id. at 1680 (veto message

of President Johnson).
' 6tSee infra text accompanying notes 172-77.
' b9See supra note 164.
noSee Cong. Globe, 39th Cong., 1st Sess. 47 (1866) (remarks of Sen. Saulsbury) ("Let

us see whether this bill in its provisions is not a total subversion of the true theory and

character of our federal system."); id. at 477 (remarks of Sen. Davis) ("As to everything

not within the Federal jurisdiction the states are considered separate and foreign goverments.");

see also id. at 603 (remarks of Sen. Cowan); id. at 1120 (remarks of Rep. Rogers) ("Con-

gress is without power ... to enter the domain of the state and interfere with its internal

policy, statutes and domestic relations."); id. at 1154 (remarks of Rep. Eldridge) ("This

bill is, it appears to me, one of the most insidious and dangerous of the various measures

which have been directed against the interest of the people of this country. It is another

of the measures designed to take away the essential rights of the states."); see also id.

at 1156 (remarks of Rep. Thornton) (referred to James Madison for the idea that the federal

government was very limited); id. at 1269 (remarks of Rep. Kerr) ("The right to exclude

them ['Negroes' and 'Coolies'] or to limit them in their civil or political rights and privileges

is fundamental and necessary to the state. It antedates all constitutions. It is original in

the state."); id. at 1415 (remarks of Sen. Davis) ("If Congress has the power to regulate



1986] SECTION 1988 697

2. Content of the Civil Rights Act of 1866.—This article will primar-
ily focus on sections one, two and three of the Act of 1866.' 7 ' Section

one provided:

That all persons born in the United States and not subject to any

foreign power, excluding Indians not taxed, are hereby declared

to be citizens of the United States, and such citizens of every race

and color, without regard to any previous condition of slavery

or involuntary servitude, except as a punishment for crime whereof

the party shall have been duly convicted, shall have the same right

in every State and Territory in the United States to make and
enforce contracts, to sue, be parties, and give evidence, to in-

herit, purchase, lease, sell, hold and convey real and personal

property, and to full and equal benefit of all laws and proceedings

for the security of person and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, and

penalties, and to none other, any law, statute, ordinance, regula-

tion, or custom to the contrary notwithstanding. 172

the subjects which this bill assumes to regulate, it is but the beginning of a new and most

important era of its legislation. There will, indeed, be a development of our system of govern-

ment of which the fathers neither spoke or wrote, or which their sons never dreamed until

the acme of the present great national fury."); id. at 1680 (veto message of President Johnson)

("Hitherto every subject embraced in the enumeration of rights contained in this bill has

been considered as exclusively belonging to the states. They all relate to the internal policy

and economy of the respective states."); id. at 1777 (remarks of Sen. Johnson) ("The result,

therefore, of the three provisions in this section is, that contrary to state constitutions and

state laws, it converts a man that is not a citizen of a state into a citizen of the state,
and it provides that his punishment shall only be such as the state laws impose upon white

citizens. Where is the authority to do that? If it exists, it is still more obvious that the

result is an entire annihilation of the power of the states.").
m

Sections 4-8 are still in existence today, sections 9-10 have been repealed. See

Wechsler, The Nationalization of Civil Liberties and Civil Rights Appendix at 44-49

(1970), for the subsequent histories of the various sections of the Act of 1866.

'"Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866), reenacted, Act of May
31, 1870, c.114, sec. 16, 16 Stat. 144 (1870). The first part of section 1, declaring that

all persons born in the United States were citizens of the United States (except un-taxed

Indians) was added by amendment after the bill was introduced in the Senate from the

Judiciary Committee. Cong. Globe, 39th Cong., 1st Sess., 498 (1866). The amendment

was adopted by the Senate and became part of the bill on February 1, 1866. Id. at 575.

There was considerable debate regarding this conferral of national citizenship. Several members

of Congress argued that the legislature had no authority to naturalize the freed blacks.

See id. at 497 (remarks of Sen. Van Winkle) (argued that only a constitutional amendment

could grant such citizenship); id. at 479 (remarks of Sen. Cowan) (argued against the provi-

sion because he was concerned it would extend citizenship to everyone and not just the

freedmen); id. at 523 (remarks of Sen. Davis) (argued that congressional power to naturalize

extended only to European immigrants and not to freed blacks. His argument rested on

a very narrow construction of article 1, § 8, cl. 4 of the Constitution which confers power

on Congress to "establish a uniform rule of naturalization." He argued that this constitu-



698 INDIANA LA W REVIEW [Vol. 19:665

First, section one conferred national citizenship on the freed blacks; 173

then it established that all citizens possessed the right to equal treatment.

Proponents of the bill were careful to distinguish the civil right to equal

treatment under state law, conferred by section one, from political and

social rights; the right to vote, for example, was purposefully excluded

from the bill. 174 Exclusion of the voting issue most likely reflected a

political choice; whether the freed men were to be given the right to vote
was an issue even more polarizing than issues raised by the Act of 1866. 175

The latter portion of section one has survived and is codified at 42

U.S.C. sections 1981' 76 and 1982. 177 Section 1981 guarantees the equal

right to contract, give evidence, and receive equal benefit of law. Section

1982 guarantees equality in the purchase and sale of real and personal

property.

Section two of the Civil Rights Act of 1866 provided:

That any person who, under color of any law, statute, ordinance,

regulation, or custom, shall subject, or cause to be subjected, any

tional power extended only to foreigners, and since the freed blacks were not foreign born,

they were not foreigners within the terms of the Constitution. Id. at 524). The purpose

of this provision in section 1 of the Act of 1866 was to reverse congressionally the decision

in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). This language was subsequently

incorporated in H.R. No. 63, which, when adopted and ratified, became the fourteenth

amendment. See Schwartz, supra note 151, at 255-56. For text of the fourteenth amend-

ment, see infra note 235.
l7JSome members of Congress argued that section 1 merely declared what already ex-

isted in fact, that blacks were citizens of the United States by virtue of their birth in the

United States. See Cong. Globe, 39th Cong., 1st Sess., 569 (1866) (remarks of Sen. Mer-

rill); id. at 1291 (remarks of Sen. Bingham). The western Indians were excepted from this

section because of the desire of Senator Trumbull not to have the Indian question "embar-

rass" the bill. Id. at 527 (remarks of Sen. Trumbull).

""Many members of Congress distinguished between civil and political rights and

understood expressly that section 1 did not encompass the right to vote. See id. at 1159

(remarks of Rep. Windom); id. at 1117 (remarks of Rep. Wilson, House sponsor of the bill).
l75The right to vote was conferred subsequently on black males by the fifteenth amend-

ment to the United States Constitution. "Section 1. The right of the citizens of the United

States to vote shall not be denied or abridged by the United States or by any State on

account of race, color, or previous condition of servitude. Section 2. The Congress shall
have power to enforce this article by appropriate legislation." U.S. Const., Amend. XV
§§ 1 and 2.

I7642 U.S.C. § 1981 (1982) provides:

All persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be par-
ties, give evidence, and to the full and equal benefit of all laws and proceedings

for the security of persons and property as is enjoyed by white citizens, and shall

be subject to like punishment, pains, penalties, taxes, licenses, and exactions of

every kind, and to no other.
I77
42 U.S.C. § 1982 (1982) provides: "All citizens of the United States shall have the

same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit,

purchase, lease, sell, hold, and convey real and personal property."



1986] SECTION 1988 699

inhabitant of any State or Territory to the deprivation of any

right secured or protected by this Act, or to different punishment,

pains, or penalties on account of such person having at any time
been held in a condition of slavery or involuntary servitude, ex-

cept as a punishment for crime whereof the party shall have been

duly convicted, or by reason of his color or race, than is prescribed

for the punishment of white persons, shall be deemed guilty of
a misdemeanor, and, on conviction, shall be punished by a fine
not exceeding $1,000, or imprisonment not exceeding one year,

or both, in the discretion of the court. 178

This provision created a criminal sanction in the event a person's section

one right to equal treatment under state law was violated. Primarily aimed

at the judiciary and exclusively targeted at agents of the state, this sec-

tion provoked intense debate in both houses of Congress. 179 Because this

section imposed federal criminal penalties on state actors who enforced
unequal state laws, it was viewed by the bill's opponents as nullifying

the criminal, property, and domestic relations laws of the states. 180

Just as it is possible to distill general or basic purposes animating

the passage of the Ku Klux Klan Act of 1871, 181 it is evident that the
thirty-ninth Congress, by enacting section two, meant to target state court

judges for liability. 182 Section two has survived and is codified at 28 U.S.C.

l78
Civil Rights Act of 1866, ch. 31, § 2, 14 Stat. 27 (1866).

119
See remarks of Senator Eldridge, opponent of the bill, who stated that without any

doubt section 2 was aimed at the state judiciary. Cong. Globe, 39th Cong., 1st Sess., 1155

(1866) (remarks of Sen. Eldridge). Representative Raymond, proponent of the bill, stated

he was concerned about the constitutional power of Congress to punish state judges in the

manner prescribed by section 2. Id. at 1267 (remarks of Rep. Raymond). Representative

Bingham, opponent of the bill, stated that Congress could not make it a crime for state

judges to follow state law. Id. at 1293 (remarks of Rep. Bingham). (Rep. Bingham ad-

vocated creation of a direct civil remedy versus a criminal penalty. Id. at 1295). The veto

message of President Johnson, id. at 1680, stated that section 2 was an unconstitutional

infringement on the state judiciary, legislature and ministerial officers. Senator Trumbull

stated that legislators who passed discriminatory state laws would not be liable under sec-

tion 2; rather, judges who acted with "vicious will," i.e. knowingly enforced discriminatory

state law, would be liable. Id. at 1758 (remarks of Sen. Trumbull). Senator Johnson stated

that section 2 usurped the power, independence and integrity of state judges. Id. at 1778

(remarks of Sen. Johnson). In response, Representative Lawrence stated, "I answer that

it is better to invade the judicial power of the state than permit it to invade, strike down

and destroy the civil rights of citizens." Id. at 1837 (remarks of Rep. Lawrence). Representa-

tive Miller, proponent of the bill, moved to amend section 2 and add that state judges
acting in accord with state law would be immune from section 2 liability. Id. at 1156 (remarks

of Rep. Miller). This amendment was not adopted.
,t0See Cong. Globe, 39th Cong., 1st Sess. 1156 (1866).
ni See supra text accompanying notes 80-97.

'"Compare the decision in Pierson v. Ray, 386 U.S. 547 (1967), discussed supra text
accompanying notes 99-112. In Pierson, the Court concluded that no legal developments

prior to 1871 suggested that anything but absolute immunity was contemplated by the United



700 INDIANA LAW REVIEW [Vol. 19:665

section 242.
m Judicial immunity is no defense to claims brought pur-

suant to section 242.'
84

Section two of the Civil Rights Act of 1866 did not create a private

remedy for individuals whose section one rights were violated.
185

It served,

rather, as the predecessor and prototype for section one of the Ku Klux
Klan Act. 186 Section 1983 is the civil extension of section two of the Act

of 1866
187 and is drafted in substantially the same terms as section two. 188

Federal civil rights legislation is significantly indebted to the first two

sections of the Act of 1866. These sections have, through modification

and reenactment, become the backbone of contemporary civil rights law:

the fourteenth amendment and sections 1981, 1982, and 1983. Due to its

States Congress when it enacted section 1983's predecessor in 1871. On the contrary, however,
section 2, the prototype for section 1983, demonstrates that Congress, in debate, expressly

contemplated the liability of state court judges pursuant to that provision. See supra note 179.
,§J

18 U.S.C. § 242 (1982) provides:

Whoever, under color of any law, statute, ordinance, regulation, or custom,

willfully subjects any inhabitant of any State, Territory or District to the depriva-

tion of any rights, privileges or immunities secured or protected by the Constitu-

tion or laws of the United States, or to different punishments, pains or penalties,

on account of such inhabitant being an alien, or by reason of his color, or race,

than are prescribed for the punishment of citizens, shall be fined not more than

$1,000 or imprisoned not more than one year, or both; and if death results shall

be subject to imprisonment for any term of years or for life.

Section 2 of the Civil Rights Act of 1866, the predecessor of 18 U.S.C. § 242, was held

to be constitutionally valid in Ex Parte Yarbrough, 110 U.S. 651 (1884), and reaffirmed
in Motes v. United States, 178 U.S. 458 (1900). See also United States v. Shafer, 384 F.

Supp. 483 (D. Ohio 1974) (withstood a vagueness attack). 18 U.S.C. § 242 was adjudicated
in Screws v. United States, 325 U.S. 91 (1945).

,t4See United States v. Ramey, 336 F.2d 512 (4th Cir. 1964), cert, denied, 379 U.S.

972 (1965). But see United States v. Chalpin, 54 F. Supp. 926 (S.D. Cal. 1944) (§ 242

not applicable to judges acting in their official capacity).

"Two congressmen advocated the creation of a civil remedy because that was viewed
as potentially more effective in redressing the wrong than the criminal penalty, which did

not compensate the victim of the discrimination. Representative Bingham proposed amend-

ing section 2 to create a civil cause of action. Cong. Globe, 39th Cong., 1st Sess., 1295

(1866) (remarks of Rep. Bingham); id. at 1805 (remarks of Sen. Doolittle). Section 242

has been construed to foreclose a private cause of action. See United States v. City of

Philadelphia, 644 F.2d 187 (3d Cir. 1980); Pawelek v. Paramount Studios Corp., 571 F.

Supp. 700 (N.D. 111. 1983); Powell v. Kopman, 511 F. Supp. 700 (S.D. N.Y. 1981). Sec-
tions 1981 and 1982, however, derived from section one of the Act of 1866, have been

construed to allow for a private damages action in conjunction with section 1983 and 28

U.S.C. §§ 1343 and 1331.
x%bSee Schwartz, supra note 151, at 591.
,,y
See Monroe, 365 U.S. at 185; Cong. Globe, 42nd Cong., 1st Sess., 68 (1871) (remarks

of Rep. Shellabarger, House sponsor of the Ku Klux Klan Act of 1871); Kohl, The Civil
Rights Act of 1866, Its Hour Come Round at Last: Jones v. Alfred H. Mayer Co., 55
Va. L. Rev. 272 (1969).

'"See infra text accompanying note 229 for the text of section 1 of the Ku Klux Klan
Act of 1871, the predecessor of section 1983.



1986] SECTION 1988 701

pervasive influence, it is necessary to understand the policies behind the

Act of 1866, the issues joined in the congressional debates, and the

challenges raised to the Act's passage.

Section three of the Civil Rights Act of 1866, the predecessor to 42

U.S.C. section 1988, provided for enforcement of the first two substan-

tive sections of the Act.
189

Section three began:

And be it further enacted\ That the district courts of the United
States, within their respective districts, shall have, exclusively of

the courts of the several States, cognizance of all crimes and of-

fenses committed against the provisions of this Act. . . . I9 °

This is essentially a preamble to the Act's enforcement provisions which

declared that the federal courts were the only courts with competency to

hear and determine violations of the Civil Rights Act of 1866. Exclusive

jurisdiction reflected a fundamental distrust of the state judiciaries; state

courts were denied a role in the vindication of rights under the Act. 191

Although section one of the Act did not create a civil remedy, sec-

tions 1981 and 1982, 192 together with 28 U.S.C. sections 1343
193 and 1331 194

have been construed to create a private right of action and civil remedies.

Federal jurisdiction in such cases, however, has been held non-exclusive.
195

Jurisdiction over the criminal civil rights provision, section 242, the heir

"'Sections 3-10 of the Act of 1866 were enforcement provisions relevant to sections

1 and 2. See Cong. Globe, 39th Cong., 1st Sess. 1119 (1866) (remarks of Rep. Wilson,

House sponsor); id. at 1151 (remarks of Rep. Thayer).

"°Act of 1866, ch. 31 § 3 (1866).
,9,
See supra note 179.

,92See supra notes 176-77 and accompanying text.
" 3

See supra note 82 for discussion and text of section 1343. Section 1343 is derived

from section 1 of the Ku Klux Klan Act of 1 87 1 . See infra notes 239-42 and accompanying
text.

"428 U.S.C. § 1331 (1982) provides: "The district courts shall have original jurisdic-

tion of all civil actions arising under the Constitution, laws, or treaties of the United States."

Prior to 1980, there was a $10,000 jurisdictional amount required under section 1331. When
this was omitted by amendment, federal question jurisdiction formed the basis of many
civil rights suits because these arose under the laws of the United States. Civil actions pur-

suant to sections 1981-1983 may, therefore, be brought under section 1331 or section 1343.

"Tor cases concluding that 28 U.S.C. § 1343 does not confer exclusive jurisdiction,
see New Times, Inc. v. Arizona Bd. of Regents, 20 Ariz. App. 422, 513 P.2d 960 (1973),
vacated on other grounds, 110 Ariz. 367, 519 P.2d 169 (1974); Brown v. Pitchess, 13 Cal.

3d 518, 531 P.2d 772, 119 Cal. Rptr. 204 (1975); Alberty v. Daniel, 25 111. App. 3d 291,

323 N.E.2d 110 (1974); Rzeznik v. Chief of Police of Southhampton, 374 Mass. 475, 373

N.E.2d 1128 (1978); Shapiro v. Columbia Union NatM Bank & Trust Co., 576 S.W.2d 310
(Mo. 1978), cert, denied, 444 U.S. 831 (1979). For cases concluding that federal jurisdiction

conferred by 28 U.S.C. § 1331 or its forerunners is concurrent, see United States v. Sayward,

160 U.S. 493 (1895); League to Save Lake Tahoe v. B.J.K. Corp., 547 F.2d 1072 (9th

Cir. 1976).



702 INDIANA LAW REVIEW [Vol. 19:665

to section two of the Civil Rights Act of 1866, remains exclusively vested

in the federal courts.
196

Section three continued by stating that the district courts had:

concurrently with the circuit courts of the United States, [jurisdic-

tion over] ... all causes, civil and criminal, affecting persons who
are denied or cannot enforce in the courts or judicial tribunals

of the State or locality where they may be, any of the rights
secured to them by the first section of this act. . . . ,97

This grant of federal jurisdiction was a very controversial provision.

Federal judicial power was previously limited to matters enumerated in

article III of the United States Constitution
198 and in the Judiciary Act

of 1789.' 99 Many congressmen questioned whether Congress had author-
ity to expand federal jurisdiction in this manner. 200 By this provision, sec-
tion three guaranteed federal court access to persons who were unable
in state courts to enforce contracts, inheritances, and land transactions201

on the same basis as was afforded white persons.

,96See supra note 183.

'"Civil Rights Act of 1866, ch. 31, § 3, 14 Stat. 27 (1866).

"•U.S. Const., art. Ill, §§ 1 and 2 provide:

Section 1: The judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may from time to
time ordain and establish. . . .

Section 2: The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;—to all Cases affecting Ambassadors,
other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdic-
tion;—to Controversies to which the United States shall be a Party;—to Controversies
between two or more States;—between a State and Citizens of another State;—between
Citizens of different States;—between Citizens of the same State claiming Lands under
Grants of different States, and between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

"'An Act to Establish the Judicial Courts of the United States, ch. 20 (1789).
200See Cong. Globe, 39th Cong., 1st Sess. 479 (1866) (remarks of Sen. Saulsbury).

He also challenged jurisdiction because it was exclusive of the state courts. Id. at 1680;
see also id. at 1778 (remarks of Sen. Johnson).

201
See supra text accompanying notes 172-77 for the matters specifically set forth in

section 1 of the Act of 1866. Some of these matters were typically covered by state common
law while other matters were subject to codification. There was very little debate over the
precise operation of section 3 of the Act of 1866. One senator, however, questioned whether
section 3 required that the person alleging discriminatory treatment first seek recourse in

state court and actually suffer the deprivation of equality or whether disparate treatment

at law was sufficient to allow access to federal courts without actual prior recourse to state
courts. See Cong. Globe, 39th Cong., 1st Sess. 1782 (1866) (remarks of Sen. Cowan). Senator
Trumbull's comments on this aspect of section 3 indicated his understanding that prior resort
to state courts was a prerequisite to the federal suit. Id. at 1759 (remarks of Sen. Trum-
bull). But he was quick to note that Congress also had the power to confer jurisdiction
whenever there was a discriminatory state custom or law, without the middle step of state
court refusal of remedy. Id.



1986] SECTION 1988 703

For example, if one man contracted with another to buy some equip-
ment, paid the money agreed upon but was subsequently refused delivery,
ordinarily the buyer would have a contract action against the seller. If

state law recognized an action in contract to enforce such an agreement

among white persons, but denied the same cause of action to a black
purchaser, section three of the Act of 1866 allowed this purchaser to bring

his contract action in federal court. The disparate treatment of contract
rights under state law would constitute a violation of section one of the
Act of 1866.

However, if state law did not recognize such an action at all, neither

for white nor black purchasers, no federal forum would be available

because there would be no unequal treatment violative of section one. 202

Federal action pursuant to this part of section three was triggered if state

law applied differently to white and black persons.

The next part of section three contained a further grant of federal

jurisdiction:

[A]nd if any suit or prosecution, civil or criminal, has been or

shall be commenced in any State court against any such person,
for any cause whatsoever, or against any officer, civil or military,

or other person, for any arrest or imprisonment, trespasses, or

wrongs done or committed by virtue or under color of authority

derived from this act ... or for refusing to do any act upon

the ground that it would be inconsistent with this act, such defen-

dant shall have the right to remove such cause for trial to the

proper federal district or circuit court. . . . 203

Thus, in addition to original jurisdiction, the federal courts had removal

jurisdiction pursuant to section three. Removal was available to civil and

criminal state court defendants in certain situations.

For example, in the civil context, if a seller failed to deliver goods

to a purchaser who subsequently refused payment because of the
nondelivery, the purchaser would ordinarily have a defense to an action

by the seller for the contract price. If this defense could be pleaded and

proved by a white defendant/purchaser but not by a black defendant/pur-

chaser, the latter could remove the civil contract action to federal court

because the unequal treatment under state law would violate section one

of the Act of 1866. In the criminal context, if a black defendant was

prohibited from testifying on his own behalf in a situation where a white
defendant would have that right, the criminal action could be removed

to federal court by the black defendant.

Removal was also available if a person was prosecuted in state court

for enforcing the Act of 1866 or if a state official, on authority of the

2See supra text accompanying notes 168-70.
3
Civil Rights Act of 1866, ch. 31, § 3, 14 Stat. 27 (1866).



704 INDIANA LA W REVIEW [Vol. 19:665

Act of 1866, refused to comply with discriminatory state laws and was

subsequently prosecuted for violating state law.
204 Removal ensured that

biased state court judges would not dispose of these cases in a manner

inconsistent with the Act of 1866. Section three's removal provision has

become 28 U.S.C. section 1443. 205 Section 1443(1) expands the availabil-

ity of removal beyond the Act of 1866 to all cases alleging violations

of federal statutes intended to secure equal rights. 206 "Equal rights, " as

used in section 1443 has, however, been construed narrowly to embrace

only cases alleging disparate treatment based on racial discrimination. 207

20
*See Cong. Globe, 39th Cong., 1st Sess. 1266-67, (1866) (remarks of Rep. Raymond);

id. at 1271 (remarks of Rep. Kerr); id. at 598 (remarks of Sen. Davis).
20528 U.S.C. § 1443 (1982) provides:

Any of the following civil actions or criminal prosecutions, commenced in
a State court may be removed by the defendant to the district court of the United

States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the equal rights

of citizens of the United States, or of all persons within the jurisdiction

thereof;

(2) For any act under color of authority derived from any law

providing for equal rights, or for refusing to do any act on the ground

that it would be inconsistent with such law.
206See City of Greenwood v. Peacock, 384 U.S. 808 (1966) (tacking section 3 of the

Civil Rights Act of 1866 to 28 U.S.C. § 1443); Georgia v. Rachel, 384 U.S. 780 (1966)

(language of section 3 of Civil Rights Act of 1866 was not intended to limit scope of removal

to rights recognized in statutes of the Reconstruction Era, but permitted removal in cases

involving rights under both existing and future statutes providing for equal civil rights).
20This provision has been construed narrowly to apply only to those actions asserting

denial of equal rights based on racial discrimination. See Georgia v. Rachel, 384 U.S. 780

(1966); see also Louisiana v. Rouselle, 418 F.2d 873 (5th Cir. 1969); Sweeney v. Abramovitz,

449 F. Supp. 213 (D. Conn. 1978) (both holding that section 1983 was only a law providing

for equal rights when invoked for purposes of asserting racial equality). Section 1443 is

distinguished from 28 U.S.C. § 1441(a) (1982), which allows removal by the defendant,

as a matter of right, of any action commenced in state court that could have been brought

originally in federal court. 28 U.S.C. § 1441(a) provides:

Except as otherwise expressly provided by Act of Congress, any civil action

brought in a State court of which the district courts of the United States have

original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place

where such action is pending.

Hence, actions brought in state court pursuant to 42 U.S.C. §§ 1981-1983 may be removed
by defendants to federal court pursuant to section 1441 because they could have been brought

in federal court in the first instance pursuant to 28 U.S.C. §§ 1331 or 1343. Removal pur-

suant to section 1443 allows removal of claims that could not have been brought originally

in federal courts. The latter is premised on the interest in protecting certain defendants
from illegal discrimination in administration of state justice. Because the perception is that

the gross disparity in judicial process for whites and blacks has been remedied in the state

systems since the 1860's, removal pursuant to section 1443 is rare. See, e.g., Johnson v.

Mississippi, 421 U.S. 213, 219 (1975); New York v. Jenkins, 422 F. Supp. 412, 415 (S.D.N.Y.
1976).



1986] SECTION 1988 705

Removal pursuant to section 1443 is rare since it has been held that ex-

press discrimination at state law is a prerequisite to removal. A state defen-
dant must establish express constitutional or statutory racial bias in the

state court process, or the actual bias of the judge, for removal to be

granted.
208

Section three of the Civil Rights Act of 1866, therefore, created ex-

clusive jurisdiction in the federal courts over direct violations of the Act

and removal jurisdiction when equal justice was unobtainable from the
state judicial system. The final part of section three prescribed the man-
ner in which the federal courts were to exercise their jurisdiction:

The jurisdiction in civil and criminal matters hereby conferred
on the district and circuit courts of the United States shall be
exercised and enforced in conformity with the laws of the United

States, so far as such laws are suitable to carry the same into

effect; but in all cases where such laws are not adapted to the

object, or are deficient in the provisions necessary to furnish

suitable remedies and punish offenses against law, the common
law, as modified and changed by the constitution and statutes

of the State wherein the court having jurisdiction of the cause,

civil or criminal, is held, so far as the same is not inconsistent

with the Constitution and laws of the United States, shall be ex-

tended to and govern said courts in the trial and disposition of

such cause, and, if of a criminal nature, in the infliction of punish-

ment on the party found guilty. 209

Congress was acutely aware that the Civil Rights Act of 1866 was

to have a major effect on the allocation of power, especially judicial power,

between the state and federal government. 210 With the creation of federal

jurisdiction by section three, the thirty-ninth Congress opened the doors

of the federal courthouse to persons adjudicating claims that, but for

discriminatory state laws or process would be exclusively within the pro-

vince of the state judiciary. 2 " It created, in effect, federal judicial super-

vision over state officials and state legal process. To mitigate the inroads
on federalism made by these substantive and enforcement provisions of
the Act of 1866, the latter part of section three, the predecessor to sec-

20
*See Johnson v. Mississippi, 421 U.S. 213 (1975); Texas v. Gulf Water Benefaction

Co., 679 F.2d 85 (5th Cir. 1982); United States ex rel. Sullivan v. State, 588 F.2d 579

(8th Cir. 1978); Northside Realty Assocs., Inc. v. Chapman, 411 F. Supp. 1195 (N.D. Ga.

1976); Frinks v. North Carolina, 333 F. Supp. 169 (E.D.N.C. 1971), aff'd, 468 F.2d 639

(4th Cir.), cert, denied, 411 U.S. 920 (1972).
209

Civil Rights Act of 1866, ch. 31, § 3, 14 Stat. 27 (1866).
210See supra text accompanying notes 169-70 and 179-84.
2 "Matters relevant to contracts, possession of real estate, inheritance, and criminal

justice are matters typically within state control.



706 INDIANA LAW REVIEW [Vol. 19:665

tion 1988, provided that federal courts could consider state law in their

adjudication of these claims.

By its terms, section three of the Act of 1866 required federal courts

to exercise their jurisdiction "in conformity with the laws of the United

States." However, if such laws were not ' 'suitable' ' or not "adapted to

the object" or if they were "deficient," then the court was to apply the

"common law" as modified by the constitution or statutes of the state
in which the court was located. Professor Kreimer has argued that the

statute's use of the terms "common law" is ambiguous because of the
decision of the Supreme Court in Swift v. Tyson and its statements regard-

ing the nature of the common law. 212

Decided in 1842, Swift construed the Rules of Decision Act which

provided: "that the laws of the several states, except where the constitu-

tion, treaties, or statutes of the United States shall otherwise require or

provide, shall be regarded as rules of decision in trials at common law
in the courts of the United States, in cases where they apply." 213 The

issue presented was whether the term "laws" as used in the statute in-

cluded the decisions of state tribunals. The court held that it did not.

Justice Story explained that the "laws" of the states usually referred

to rules and enactments promulgated by legislative authority or to long

established local customs having the force of laws. The Court decided

that judicial opinions were "at most, only evidence of what the laws are,

and are not of themselves laws." 214

The common law was not the law of a single country or state but
of the world. Judges were to ascertain "upon general reasoning and legal

analogies" the true rule of law which governed the case. 215 Although

federal courts were to give "deliberate attention and respect" to the deci-

sions of state tribunals, state decisional law could not "furnish positive

rules, or conclusive authority" by which the judgments of federal courts

were to be "bound up and governed." 216

Kreimer argued that the view of the common law expressed in Swift
should be read into section three of the Act of 1866. He urged that sec-
tion 1988's predecessor which directed that such courts apply the com-

mon law, be read as authorizing federal courts to engage in the creation
of federal common law.

An important distinction between section three of the Act of 1866
and the Rules of Decision Act is that the former expressly directed courts

to apply the "common law" whereas the latter directed the courts to apply

2l2
Kreimer, supra note 16, at 618-21

2,J
Swr//, 16 Pet. at 18.

2,4
Id.

2,5
Id. at 19.

216
Id.



1986J SECTION 1988 707

"the laws" of the several states. Section three does not say that the courts

were to create common law. The ambiguity in the Rules of Decision Act
was whether "laws" included court decisions. It cannot seriously be con-

tested that the term "common law" is imbued with such vagueness.
Erie Railroad Co. v. Tompkins217 exploded the myth that a univer-

sal body of general common law existed and overruled Swift's authoriza-
tion of federal judicial creation of general common law. There were several
grounds for reversal. First, the Court in Erie reviewed Swift's discussion of

the Judiciary Act of 1789 and concluded that the construction given it

was erroneous. 218 Second, the Court held that Swift's construction of the

Rules of Decision Act had developed a new "well of uncertainties" and
that there was no "satisfactory line of demarcation between the province
of general law and that of local law." 219 Third, and most importantly,

the Court held:

And whether the law of the State shall be declared by its
Legislature in a statute or by its highest court in a decision is

not a matter of federal concern. There is no federal general com-

mon law. Congress has no power to declare substantive rules of
common law applicable in a State whether they be local in their
nature or "general," be they commercial law or a part of the

law of torts. And no clause in the Constitution purports to confer
such power upon the federal courts. 220

Erie did not merely reconsider the view of the common law espoused in
Swift, it rejected the original validity of Swift's observations.

221 Erie and

the authority cited therein reflect the fact that among judges and academics
in the late 1800*5 and early 1900's no consensus existed with respect to a

theory of general common law. The historical sources recited in the immunity
cases and the variation among states in the rule of law applied also support
the view that state common law judges did not subscribe to a theory of general
common law. 222

It is hard to believe that the congressmen of the Reconstruction Era

subscribed to the view that their state court judges did not make law for
their respective states. The debates are full of diatribes concerning the

perceived impact of the Act of 1866 upon state judges and upon the func-

tioning of state courts. 223 Conversely, there is little, if anything, in the

2,7304 U.S. 64 (1938).
2lt

Id. at 71-74.
2,9

Id. at 74-75.

220
Id. at 78.

Id. at 72-73.

See supra text accompanying notes 98-147.

See supra note 179.

221

222



708 INDIANA LA W REVIEW [Vol. 19:665

debates to suggest that these same congressmen were versed in the

jurisprudential vagaries of the Swift v. Tyson theory of common law.
It is the view of this author that the most plausible reading, and the

reading most consistent with the context of the Act and its history, is

that section three of the Act of 1866 required federal courts to apply

the common law of the state in which they were located. This directive was
not unrestricted; state law applied only if it was consistent with the pur-

poses of the Civil Rights Act.

Section one of the Act concerned state laws pertaining to contracts,

property, inheritances, etc. These subjects were then and are now largely
within the province of common law. One of the possible scenarios for
federal court involvement under the Act of 1866 was that a state contract

action could be removed to federal court because a black party defendant

was denied fair process in state court. The underlying contract action would

then proceed in the federal forum. It makes sense that section three of

the Act, directing federal courts to apply common law, referred to the
common law of the state where the action arose rather than the common
law of all states, or federal common law. This construction of section
three of the Act of 1866 is necessary to give effect to the obvious spirit

of the statute.

Allowing state law to apply where it did not breach the equality rights

prescribed by section one created an incentive for the states to eliminate

disparate treatment. If discrimination in connection with the substantive

issues enumerated in section one were eliminated and if the access to justice

concerns of section two could be assuaged, the states could assure that

disputes among their citizens would be determined by state tribunals ap-
plying state law.

Section three was a compromise. Federal courts were to be resorted

to when state law and state courts were inadequate to protect the equal
rights of the freed slaves. In the event of federal involvement in civil or

criminal disputes arising under state law, federal courts were allowed to

utilize state law to the extent it did not abrogate the laws of the United

States.
224

The Act of 1866 established a national minimum of liberty; if state
law addressed an issue, it had to do so in a manner which treated freed

slaves equally. States were free to go further in the creation and protec-

tion of civil rights, but if the minimum of equality prescribed by the Act
of 1866 was not achieved, state law and state courts would be bypassed.
Where federal jurisdiction was invoked pursuant to the Act, the balance
continued to be struck. If federal law was not available, non-discriminatory

state law would control and preempt the federal court from exercising

common law powers. On one level, national uniformity would be sacrificed
in this manner; on another level, however, a national minimum of pro-
tection was established and guaranteed by the Civil Rights Act of 1866.

224
See supra notes 151-52 and accompanying text.



1986J SECTION 1988 709

Clearly Congress endeavored to cause a reformation of state judicial

process and law, vis-a-vis racial distinctions in criminal, property, in-

heritance, and contract law. 225 The federalism concerns of the opposition
did not go unheeded. Resolution of these competing values was accomp-

lished in section three of the Act of 1866 with its conditions precedent

to federal jurisdiction and its prescription for the interplay of state and

national law in federal adjudication of claims under the Act.

3. Defining the issues.—Issues raised by the passage and content of
the Civil Rights Act of 1866 foreshadowed all subsequent debate regard-

ing the scope of federal civil rights legislation. The issue of federalism
and the need to balance national protection of civil rights against preser-

vation of state autonomy was one of the most fundamental concerns
debated. The power of Congress to interpose the United States govern-
ment into the relations between a state and its citizens through the federal

judiciary implicated federalism values. The Act of 1866 shared a com-
mon conception with all other Reconstruction Era legislation; it was
spawned in a whirlwind of conflict over the most basic notions of federal

and state power. It became law at a period in United States history where

there existed, at all levels of government, vehement disagreement over

passionately held attitudes concerning racial equality and individual liber-

ties. At no time since has the legislative branch seemed so sharply or ex-

pressly divided on the issue of civil rights.
Few cases have arisen under the Act of 1866, per se. Subsequent

recodification separated the provisions of the Act so that it now survives
as separate parts of United States civil rights legislation. 226 Despite its

relative obscurity in the civil rights enforcement scheme today, the Act

of 1866 was the predecessor to the most significant components in the

civil rights vindication scheme: the fourteenth amendment and section

1983.
227 Enforcement provisions from the Act of 1866, modeled on the

Fugitive Slave Act of 1850, were expressly adopted by the forty-second

Congress in the passage of the Ku Klux Klan Act.

C. The Ku Klux Klan Act of 1871

Section one of the Ku Klux Klan Act of 1871 228 created a civil remedy
for persons deprived of constitutional rights by persons acting under color

22iSee Cong. Globe, 39th Cong., 1st Sess. 600 (1866) (remarks of Sen. Trumbull) ("The

bill draws to the federal government no power whatsoever if the states will perform their

constitutional obligations"). Representative Wilson stated, "[I]f the states would all observe

the rights of our citizens there would be no need of the bill." Id. at 1117 (remarks of

Rep. Wilson).
22
*See supra text accompanying notes 171-224.

"'While sections 1981 and 1982 are used somewhat regularly, the lion's share of civil

rights cases arises under section 1983 and the fourteenth amendment.
22,An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution

of the United States and for other purposes, ch. 22, 17 Stat. 13 (1871).



710 INDIANA LAW REVIEW [Vol. 19:665

of state law. It was expressly linked to the Civil Rights Act of 1866. The

predecessor to section 1983 provided:

That any person who, under color of state law, statute, ordinance

or regulation, custom or usage of any state, shall subject, or cause

to be subjected, any person within the jurisdiction of the United

States to the deprivation of any rights, privileges, or immunities

secured by the Constitution of the United States, shall, such law,

statute, ordinance, regulation, custom or usage of the State to

the contrary notwithstanding, be liable to the party injured in any

action at law, suit in equity, or other proper proceeding for

redress; such proceeding to be prosecuted in the several district

or circuit courts of the United States, with and subject to the

same rights of appeal, review upon error, and other remedies pro-

vided in like cases in such courts, under the provisions of the

Act of the ninth of April, eighteen hundred and sixty-six, entitled

"An Act to protect all persons in the United States in their civil
rights and to further the means of their vindication;" and other

remedial laws of the United States which are in their nature ap-

plicable in such cases. 229

The Ku Klux Klan Act, section one, first provided that a private civil
action could be brought against any person whose conduct, under color

of state law, violated the Constitution of the United States. This portion

of section one is currently codified at 42 U.S.C. section 1983. "° As
originally enacted it applied only to conduct under color of state law which

caused the plaintiff to suffer a constitutional deprivation. 231 Subsequent-

ly, section 1983's language was changed, and conduct resulting in the

deprivation of rights secured by either the Constitution or laws of the

United States is now actionable pursuant to section 1983. 232

Like section one of the Act of 1866, the Ku Klux Klan Act expressly
declared that state law, custom or practice which was contrary to the civil

rights act was to be ignored. 233 The Act of 1871 accomplishes this in

substantially the same language as the Act of 1866. The forty-second Con-
gress created a civil remedy by borrowing the language employed by the

thirty-ninth Congress in the latter* s enactment of section two of the Act

of 1866. 234 The remedy provided for in the Act of 1866, however, was

229
Id. at § 1 (emphasis added).

2J0See supra text accompanying note 5 for the text of 42 U.S.C. § 1983.
"'Primarily a deprivation under the thirteenth, fourteenth, and fifteenth amendments

to the Constitution.
2J2

See Maine v. Thiboutot, 448 U.S. 1 (1980), for a discussion of the "and laws'*
addition to the text of § 1983.

23,
See supra text accompanying note 172 for text of section 1 of the Civil Rights Act of 1866.

234
See supra text accompanying note 178 for text of section 2 of the Civil Rights Act

of 1866.



1986] SECTION 1988 711

only criminal in nature and was available only to redress violations of

the 1866 Act's section one right to equal treatment.

In the interim between 1866 and 1871, the fourteenth amendment was
ratified.

235 The Act of 1871 was broader than its predecessor; like the
Act of 1866, it conferred a remedy for violation of equal protection at
state law, but further provided a remedy for violation of the right to
due process conferred by the fourteenth amendment. Unlike its predecessor,

the Act of 1871 did not contend with fierce opposition based on the con-
stitutional authority for the exercise of congressional power.236 Acting pur-

suant to section five of the recently ratified fourteenth amendment, Con-

gress clearly had constitutional authority to enact section one of the Ku
Klux Klan Act. 237 The Act of 1871 did, however, meet opposition based
on arguments similar to those which had been raised in the debates over

the Civil Rights Act of 1866. 238

235
U.S. Const., amend. XIV §§ 1 and 5 provide:

Section 1.

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.
* * *

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.

The equal protection clause of the fourteenth amendment is not restricted to equal treat-

ment among races as was section one of the Act of 1866. Hence violations of equal protec-
tion based on classifications unrelated to race are actionable through section 1983. See,

e.g., Orr v. Orr, 440 U.S. 268 (1979) (gender-based classifications violate the fourteenth

amendment unless shown to serve an important governmental purpose and to be related

substantially to achievement of those objectives); Graham v. Richardson, 403 U.S. 365 (1971)

(welfare benefits and aliens). Actions pursuant to section 1 of the Act of 1866's successors,

42 U.S.C. §§ 1981 and 1982, must be premised on racial classifications. See, e.g., McDonald
v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (white person may maintain an action
under § 1981 based on racial discrimination); Runyon v. McCrary, 427 U.S. 160 (1976)

(crucial factor in a § 1981 case is racial discrimination); Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) (section 1982 bars discrimination in housing only in forms of racial

discrimination); Olivares v. Martin, 555 F.2d 1192 (5th Cir. 1977) (race must be a factor

in discrimination actionable under § 1981). To the extent, however, that sections 1981 and
1982 reach private conduct as well as conduct under color of state law, they provide a broader

remedy than section 1983. See Runyon, All U.S. at 170; Tillman v. Wheaton-Haven Recrea-

tion Ass'n, 410 U.S. 431, 435 (1973); Jones, 392 U.S. at 425-26.
2J6See supra text accompanying notes 164-70 for questioning of constitutional authority

surrounding the passage of the Civil Rights Act of 1866.

"'See Quern v. Jordan, 440 U.S. 332, 351 n.3 (1979) (Brennan, J., concurring); Mitchum

v. Foster, 407 U.S. 225, 239-40 (1972); Gressman, supra note 13, at 1328-29, 1333.

"'See supra note 170.



712 INDIANA LAW REVIEW (Vol. 19:665

Section one of the Ku Klux Klan Act granted original jurisdiction
to the federal courts. Jurisdiction thereby conferred was expressly subject

to the provisions of the Civil Rights Act of 1866.
239 Today this grant

of jurisdiction is codified at 28 U.S.C. section 1343.
240

Section 1343 does

not contain the original reference to the Act of 1866, but such reference

is now unnecessary due to the way in which the 1866 Act has been
recodified in title 42. Section three of the Act of 1866—directly related
to the exercise of federal judicial power in civil rights cases—has been
recodified at 42 U.S.C. section 1988 and is expressly applicable to all

civil rights statutes.
241 By its terms, section 1988 applies to "jurisdiction

in civil and criminal matters conferred on the district courts by provi-

sions of . . . the Title 'CIVIL RIGHTS,' and of the Title 'CRIMES/
for the protection of all persons in the United States in their civil rights

and for their vindication.*' 242 Section 1983 is, therefore, subject to the

requirements of section 1988.

The next section of this article will discuss the use that the Supreme

Court has made of section 1988. Section 1988 has been applied in only
a few situations and the doctrine which has been generated is largely con-

sistent with the use of that statute proposed in this article.

V. Section 1988—Precedent

The Supreme Court has applied section 1988 as a source of law in

civil rights actions arising under 42 U.S.C. sections 1981,243 1982,
244 and

1983.
245 However, the cases in which the Court has referred to section

1988 have typically involved rather narrow questions, such as the applicable

statute of limitations, measure of damages, suspension and tolling of the

statute of limitations, and survivorship of the cause of action. 246 Section

1988 has been "triggered" upon the conclusion that a particular civil rights

provision did not address the issue at hand. The Court has not, however,

consistently applied section 1988 nor has it clearly established guidelines

2i9See supra text accompanying note 229.
240

See supra note 82 for text of 28 U.S.C. § 1343.
241

See supra note 152 for the text of § 1988. Professor Eisenberg viewed section 1988

as applicable to federal civil rights actions only in cases removed from state court to federal
court. See Eisenberg, supra note 17, at 533-35. The language of section 1988 is not so
limited. Also, it is the position of this author that section 1988 represents a compromise

in the struggle between state and federal power. See infra text accompanying notes 209-14.

Thus, consideration of state law enhances and preserves the restructured federalism of the
post-Civil War era.

24242 U.S.C. § 1988 (1982).
24
'See supra note 176.

244
See supra note 177.

2AiSee supra text accompanying note 5.
246See infra text accompanying notes 247-309.



1 986] SECTION 1988 7 1

3

for determining when the civil rights provisions are deficient. Cases which
have utilized section 1988 illustrate this point.

This discussion of section 1988 precedent is intended to demonstrate

that the Court has not entirely ignored section 1988 in its decisions under

the Civil Rights Acts, notably section 1983. When it has utilized the statute,
its application has typically been consistent with the method of applica-
tion proposed in this article.

A. Statute of Limitations Cases

In Board of Regents v. Tomanio
241

Justice Rehnquist's majority opin-

ion on behalf of six Justices concluded that pursuant to section 1988,
federal courts were bound to apply state statutes of limitations when federal
law provided no rule of decision for actions under section 1983. 248 Rely-

ing on Johnson v. Railway Express249 and Robertson v. Wegmann, 250 the
Court held, "In 42 U.S.C. Sec. 1988 . . . Congress quite clearly instructs

[federal courts] to refer to state statutes when federal law provides no
rule of decision for actions brought under section 1983." 25 ' The Court
also concluded that state tolling provisions were applicable. 252

Only if state law was not consistent with federal law would the ma-

jority hold state law inapplicable. 253 Justice Rehnquist concluded that the

New York rule against tolling was not inconsistent with the purposes of
section 1983

254 because section 1983 claims were per se separate and in-

dependent of state law claims. 255 The majority opinion rejected balancing

247446 U.S. 478 (1980).
2tt

Id. at 483-86.
249

421 U.S. 454 (1975). In Johnson, the Supreme Court concluded that filing a Title

VII claim with the Equal Employment Opportunity Commission did not toll the running

of the statute of limitations relevant to petitioners section 1981 claim. The Court summarily

concluded that Tennessee law supplied the statute of limitations for section 1981. The issue

then became whether this statute was tolled because Tennessee law provided no extension

of time in similar circumstances. The Court concluded that the statute was not tolled and

that petitioner's section 1981 claim was time barred. The Court cited section 1988 to sup-

port its contention that state law fully determined the matter. No consideration was given
to whether state law was compatible with the policies of section 1981.

"°436 U.S. 584 (1978).
2i, Tomanio, 446 U.S. at 484 (quoting Robertson v. Wegmann, 436 U.S. 584 (1978)).
2i2

Id. at 485-86.
25
'Id. at 486.

2i4
Id. at 491.

25
'Petitioner had first brought an action in state court based on state law challenging

the respondent's refusal to grant petitioner a license to practice chiropratic medicine. When
the state suit was concluded against petitioner, she brought a section 1983 claim in federal

court. She argued therein that the pendency of her state proceedings tolled the running

of any applicable statute of limitations. The separate and independent status of section 1983

claims has been substantially eroded in recent preclusion decisions of the Burger Court.

Although the Court avoided the res judicata issue in Tomanio, it has since held that section



714 INDIANA LAW REVIEW [Vol. 19:665

the purposes of section 1983 against the purposes of repose embodied

in statutes of limitations, refusing to find that a section 1983 plaintiff

could reject a state statute as inconsistent with section 1983 merely because

a federal, common law rule would be more permissive. Justice Rehnquist
stated, "If success of the section 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.
,,2$6

Justice Brennan, joined by Justice Marshall, dissented. He concluded
that the New York provision was inconsistent with section 1983's purpose
to provide a federal forum to section 1983 litigants. 257 The majority had

not focused on this purpose of section 1983 in its determination that the

New York statute was consistent with the federal civil rights provision.
In Chardon v. Juan Fumero Soto, 25 * the Court held, pursuant to

Puerto Rican law, that a plaintiffs section 1983 claim did not lapse dur-

ing the pendency of an attempted federal class action. Puerto Rican law

stated that the statute of limitations began to run anew following denial

of class certification. Justice Stevens wrote for a majority of six and con-

cluded that, in accord with Tomanio, section 1988 required the applica-

tion of local law concerning the tolling of the statute of limitations.

Justice Rehnquist dissented. On behalf of three Justices, he argued
that section 1988 first required recourse to applicable federal law that was

"adapted to the object." 259 Tolling of the statute of limitations pending

class certification under rule 23 of the Federal Rules of Civil Procedure

had been discussed in a federal antitrust case. 260 The dissent argued that

in American Pipe v. Utah, 261 the Court fashioned a toiling doctrine from

1983 claims similar procedurally to the one at issue in Tomanio are barred by claim preclu-

sion from being brought in federal court proceedings subsequent to a state court action.

See Migra v. Warren City School Dist. Bd. of Educ, 465 U.S. 75 (1984); Allen v. McCurry,

449 U.S. 90 (1980); see also Smith, Full Faith and Credit and Section 1983: A Reappraisal,
63 N.C.L. Rev. 59 (1984).

"'Tomanio, 446 U.S. at 488 (quoting Robertson v. Wegmann, 436 U.S. 584 (1978)).
lin

Id. at 497 (Brennan, J., dissenting). The primacy of section 1983's purpose to provide

a federal forum would, for the dissent, likewise justify the rejection of New York rules of
resjudicata which would bar a subsequent section 1983 action in federal court. This argument

was rejected in Migra, 465 U.S. 75. The Supreme Court held recently that the purposes underlying

a federal statute may very well result in the federal court refusing to give the same preclusion
effect to a state court judgment as would the rendering state where the state preclusion rules

would deny the litigation of the claim. See Marrese v. American Academy of Orthopaedic
Surgeons, 105 S. Ct. 1327 (1985). The Court therein rejected the possibility of a federal court
ever according greater preclusive effect to a state court judgment than would the rendering

state. Id. at 1333 n.3-1334.

"•462 U.S. 650 (1982).

""Id. at 663 (Rehnquist, J., dissenting).
260

Id. at 663-64 (Rehnquist, J., dissenting).

"'414 U.S. 538 (1974).



1986] SECTION 1988 715

rule 23 which prescribed that statutes of limitation were to be suspended

during the pendency of class certification; when certification was denied
the statute of limitations resumed running where it left off. 262

Justice Rehnquist understood section 1988 first to require recourse

to federal law which, apparently, included federal decisional law. 263 The
majority agreed that section 1988 first required recourse to federal law.

264

Although Justice Stevens did not argue the applicability of decisional law,

he construed the federal case law narrowly, and concluded that it did

not supply a rule of law for section 1983. 265 Finding no applicable federal

law, Justice Stevens considered state law pursuant to section 1988 and

Tomanio. 266 Neither the majority nor the dissent discussed whether non-

civil rights federal case law could supply applicable federal law pursuant

to section 1988*5 initial inquiry. The majority, however, demonstrated a
disinclination to apply decisional law that did not expressly relate to civil

rights. The dissent would have been more liberal and would have applied
roughly analogous decisional law.

Two recent decisions shed further light on section 1988. In Burnett
v. Grattan, 261 the Court affirmed its general approach to statute of limita-

tions problems in section 1983 cases. 268 The Court also discussed, for the
first time, section 1988's proscription against application of state law found

to be inconsistent with the purposes and policies of section 1988.

Emphasizing the uniqueness of section 1983 actions, the majority stated,

through Justice Marshall, "A state law is not 'appropriate* if it fails to take
into account particularities that are involved in litigating federal civil rights

claims and policies that are analogous to the goals of the Civil Rights Act." 269

Because section 1983 provided an independent remedy, a Maryland statute

of limitations requiring prior administrative proceedings was held to be in-

262Chardon, 462 U.S. at 665 (Rehnquist, J., dissenting).
26i

Id. at 663 (Rehnquist, J., dissenting).
2
**Id. at 657.

265
Id. The distinction was critical. If the law of the federal decision applied, then the

section 1983 plaintiffs were time-barred from bringing suit. Pursuant to Puerto Rico's rule

that the statute began to run anew, the respondents were not time-barred.
26t

Id. at 656-57.
267

104 S. Ct. 2924 (1984).
26t

Id. at 2929-30. The Court affirmed its general approach to statute of limitations

problems in section 1983 cases. However, the majority held that the district court had im-

properly borrowed a state statute of limitations which required recourse to administrative

proceedings. The Court characterized section 1988 as mandating a three-step approach: first,

consideration of whether United States law was responsive to the issue; second, whether

state statutory and common law was applicable if there was no appropriate federal law;
and third, utilization of a state law unless it was inconsistent with the Constitution and

laws of the United States. Id. at 2928-29.

"'/</. at 2930.



716 INDIANA LAW REVIEW [Vol. 19:665

consistent with section 1983 and, therefore, inapplicable pursuant to section

1988.
27 °

In Wilson v. Garcia,
271

the Supreme Court affirmed that state statutes

of limitations govern section 1983 cases pursuant to section 1988. It found,

however, as a matter of federal law, that section 1983 was to be uniform-

ly characterized as a personal injury remedy.
272 The Court criticized the

myriad characterizations of section 1983 actions which had evolved in dif-

ferent opinions attempting to determine, in various circumstances, which

state statute of limitations was most closely analogous. The Court noted

that in any given litigation a section 1983 cause of action is potentially

subject to three or more different limitations periods depending on how
the conduct alleged or the cause of action was characterized. 273 Relying

on the history of section 1983, 274 the Court declared, as a matter of

statutory interpretation, that section 1983 was primarily intended to redress

personal injury. Although this construction of section 1983 was hardly

dictated by the statute's history, 275 Garcia does not undermine Tomanio's

conclusion that state statutes of limitations apply. The result of Garcia

is merely that a state's statute of limitations for personal injury actions

will be the relevant statute.
276

The Supreme Court has definitively concluded that section 1983 is

subject to section 1988 and that section 1983 is deficient in not providing for

a statute of limitations. Following Garcia, all section 1983 suits should

be subject to the state's personal injury statute of limitations. However,

recent case law reveals that Garcia may not be able to meet the task of
establishing reasonable certainty in the determination of applicable statutes

of limitations. Unless the state statute of limitation is inconsistent with the

purposes of section 1983, it must be applied.
277

270
Id. at 2931. Justice Rehnquist concurred, but he based his opinion on the belief

that the Maryland legislature had not intended that the contested statute of limitations be

applicable to section 1983 actions. Id. at 2936 (Rehnquist, J., concurring). He would measure
the consistency of the state statute of limitations with section 1983 by looking at the intent

of the state legislature. Where the legislature intended the statute to apply to civil rights

cases, it would be presumptively valid. Id. at 2935 (Rehnquist, J., concurring). Further,

Justice Rehnquist stated that it was improper for the Court to value the policies of section 1983

higher than the values of repose underlying statutes of limitations. Id. (Rehnquist, J.,

concurring).

"'105 S. Ct. 1938 (1985).
212

Id. at 1948.
21i

Id. at 1948-49.
214

Id. at 1947-48.
21i

Id. at 1948. In this regard the decision was similar to the immunity cases. See supra

text accompanying notes 98-148.
21b

Id. at 1949.
277Courts have infrequently concluded that the most analogous state statute of limita-

tions was inconsistent with the purposes of section 1983. See, e.g., Childers v. Independent School



19861 SECTION 1988 717

B. Computation of Damages Cases

In Jones v. Mayer ,
278

the Supreme Court implied a private cause of

action from 42 U.S.C. section 1982 to redress private racial discrimina-

tion in housing.
279 A question left open in Mayer was what damages, if

any, were appropriate to redress violations of section 1982. 280 The Court
answered this in Sullivan v. Little Hunting Park, 2 * 1 where a majority of

the Justices turned to section 1988 for an answer. Maintaining that sec-

tion 1343 created federal jurisdiction over the section 1982 cause of ac-

tion,
282

the Court held that "the existence of a statutory right implies

the existence of all necessary and appropriate remedies. ,,2S3 Then, without

elaboration and relying on only one federal court of appeals case, the

Court stated, "Compensatory damages for deprivations of a federal right

are governed by federal standards, as provided by Congress in 42 U.S.C.

section 1988."
284 Although the Court did not explore the issue of damages

further, Justice Douglas* majority opinion maintained that, pursuant to

section 1988, "both federal and state rules on damages may be utilized,
whichever better serves the policies expressed in the federal statutes." 285

Dist. No. 1 of Bryan County, 676 F.2d 1338 (10th Cir. 1982) (six-month statute of limita-

tions for administrative filing of claims pursuant to state tort claims act was inconsistent

with § 1983). But see Osgood v. District of Columbia, 567 F. Supp. 1026 (D.D.C. 1983);
Stewart v. City of Northport, 425 So. 2d 1119 (Ala. 1983) (both holding a six-month statute

of limitations barred a § 1983 claim).

"•392 U.S. 409 (1968).

"'The majority, in an opinion by Justice Stewart, concluded on the basis of section

1982's "plain and unambiguous terms" that private discrimination was reached by former

section 1 of the Civil Rights Act of 1866. Id. at 420. Legislative history was cited by the

majority to support this construction of section 1982. Id. at 422-37. Further, the Court

concluded that Congress did indeed have power pursuant to the thirteenth amendment to
enact such legislation. Id. at 444. Because the Supreme Court reversed a lower court order

of dismissal, it did not have to address the question of what damages would be available

under this section 1982 action. The construction of section 1982 espoused in Jones does

not accord with the legislative history of section 1 of the Civil Rights Act of 1866. See

supra text accompanying notes 171-224. The express language of section 1982 also does

not create a private cause of action. In the context of the Civil Rights Act of 1866, section

1982's predecessor was enforceable only through the criminal remedy and only against public

persons versus private actors. "[T]he language, structure, and legislative history of the 1866

Civil Rights Act shows, I believe, that the Court's thesis that the Act was meant to extend

to purely private action is open to the most serious doubt, if indeed it does not render

that thesis wholly untenable." Jones, 392 U.S. at 473 (Harlan, J., dissenting). But see Avins,

The Civil Rights Act of 1866, The Civil Rights Bill of 1966, and the Right to Buy Prop-

erty, 40 S. Cal. L. Rev. 274 (1967).
2t0Jones, 392 U.S. at 414-15.

"'396 U.S. 229 (1969).
2%2

Id. at 238.
2ti

Id. at 239.
2t4

Id.

2ti
Id. at 240.



718 INDIANA LAW REVIEW [Vol. 19:665

In Carey v. Piphus,
2 * 6

Justice Powell, for a majority of seven, con-

cluded that section 1983 damages should be compensatory in nature. The

majority stated that without a compensatory theory of section 1983 relief,

the purposes of section 1983 would be defeated.
287 The * initial inquiry"

in computing such damages was the common law of torts, and where
such common law was inappropriate, the Court held it must adapt the
common law rule288 by tailoring it to suit the purposes of section 1983. 289

Section 1988 was viewed by the Court as authorizing federal courts to

consider state common law. 290

Together, Carey and Sullivan express the rule that compensatory

damages are available under section 1983 and that they are to be com-

puted pursuant to federal or state law, including state common law,
whichever better serves the purposes of section 1983. 29 ' Further, if state

common law does not provide suitable relief, then the federal courts are
to fashion a suitable federal common law rule of damages. The authority
for these rules of section 1983 jurisprudence is section 1988. 292

The Sullivan approach to the computation of damages in section 1983

cases is result oriented. The theory appears to be that for the plaintiff,

286
435 U.S. 247 (1978).

2"
Id. at 258. This conclusion was premised on the belief that Congress must have

known about the compensatory nature of damages when it enacted section 1983, id. at 255; as
well as on the Court's belief that such damages would further the purpose of section 1983 to
deter violations of civil rights. Id. at 256.

Ul
ld. at 258.

"'Id. at 258-59. This process of considering and then rejecting the common law because
such would not fulfill the purposes of section 1983 is the same methodology employed,
tacitly, in the immunity cases. See supra text accompanying notes 98-148; see also Smith
v. Wade, 461 U.S. 30, 34 (1983):

We noted in Carey that there was little in the section's legislative history concern-
ing the damages recoverable for this tort liability. ... In the absence of more
specific guidance, we looked first to the common law of torts (both modern and
as of 1871), with such modification or adaptation as might be necessary to carry

out the purpose and policy of the statute. ... We have done the same in other
contexts arising under § 1983, especially the recurring problem of common-law
immunities.

"°Carey, 435 U.S. at 258 n.13.

"'Although Sullivan arose in the context of section 1982, the Court's holding that

compensatory damages were to be computed through section 1988's application of state
or federal law, whichever better fulfills the purposes of the civil rights legislation, has been

relied upon in the context of section 1983. See Bell v. City of Milwaukee, 746 F.2d 1205,
1234 (7th Cir. 1984); McFadden v. Sanchez, 710 F.2d 907, 913 (2nd Cir.), cert, denied,
464 U.S. 961 (1983); Dobson v. Camden, 705 F.2d 759, 764 (5th Cir. 1983); Garrick v.
City and County of Denver, 652 F.2d 969, 971 (10th Cir. 1981); Williams v. United States,
353 F. Supp. 1226, 1232 (E.D. La. 1973).

"'See Monell v. Department of Social Services, 436 U.S. 658, 701 n.66 (1978); Adickes
v. S.H. Kress & Co., 398 U.S. 144, 231 (1978) (Brennan, J., concurring in part and dissenting
in part); Monroe v. Pape, 365 U.S. 167, 251-52 n.79 (1961) (Frankfurter, J., dissenting).



1986] SECTION 1988 719

"more is better,* ' and since section 1983 is a plaintiff's remedial provi-
sion, its purposes are better served by awarding the greatest possible

measure of damages. Clearly, this use of section 1988 is inconsistent with

its use in the statute of limitations cases. As has been demonstrated in
those decisions, the outcome of the application of differing statutes of
limitations was not a legitimate basis for courts to choose between state

and federal law.

As a matter of construction and application of section 1988, the
damages cases are an aberration. The systemic development of section
1988 doctrine in the statute of limitations cases is a more legitimate guide

to a correct use of section 1988. The cases determining whether section
1983 suits survive the death of the plaintiff are consistent with the statute

of limitations cases.

C. Survival of Section 1983 Actions

The Supreme Court, in Robertson v. Wegmann, 293 concluded that sec-
tion 1983 and other federal law were deficient in providing for whether

section 1983 claims survived the death of the injured party, thus trigger-

ing an inquiry into state law pursuant to section 1988. 294 The lower court

had rejected a Louisiana survivorship statute and had instead created a

common law rule that section 1983 claims survived in favor of a dece-
dent's personal representative. 295

The Supreme Court reversed. Instead of fashioning a federal common
law rule, the Court considered the applicability of Louisiana law. It held

that Louisiana law was to be applied unless it was inconsistent with sec-

tion 1983:

Despite the broad sweep of section 1983, we can find nothing
in the statute or its underlying policies to indicate that a state

law causing abatement of a particular action should invariably

be ignored in favor of a rule of absolute survivorship. The policies

underlying section 1983 include compensation of persons injured

by deprivation of federal rights and prevention of abuses of power

by those acting under color of state law. ... No claim is made
here that Louisiana's survivorship laws are in general inconsis-

tent with these policies, and indeed most Louisiana actions sur-

vive the plaintiff's death. 296

2,J436 U.S. 584 (1978).
294

Id. at 588.
19i

Id.

29b
Id. at 590-91. Louisiana had codified its survival law, which granted survival in favor

of a spouse, children, parents or siblings. This was a statutory modification of the common
law rule of no survivorship. Thus, this case fell squarely within the language of section

1988. Since the decedent had no relatives with the statutory relationship, the section 1983 claim



720 INDIANA LA W REVIEW [Vol. 19:665

The majority noted in Robertson that the use of the term "common law"
was ambiguous in section 1988: "[The] reference to 'the common law*
might be interpreted as a reference to the decisional law of the forum

State, or as a reference to the kind of general common law that was part
of our federal jurisprudence by the time of section 1988's passage in
1866." 297 The Court referred to Swift v. Tyson29 * for the understanding

of common law in 1866. Because the Louisiana law at issue was statutory
in nature, however, the Court in Robertson did not have to determine

whether section 1988 extended to state common law.
The Court's consideration of Louisiana law, and whether it was con-

sistent with section 1983, turned on the general application of the state

law and not on the outcome of a specific case in which it might be ap-

plied.
299

Rejecting an argument that national uniformity was required, the

Court stated:

[W]hatever the value of nationwide uniformity in areas of civil

rights enforcement where Congress has not spoken, in the areas

to which section 1988 is applicable Congress has provided direc-

tion, indicating that state law will often provide the content of

the federal remedial rule. This statutory reliance on state law ob-
viously means that there will not be nationwide uniformity on

these issues.
300

National uniformity was trumped by the command of section 1988. 301

would have abated if state law controlled. Section 1988 provides in relevant part that "the

common law, as modified and changed by the constitution and statutes of the State wherein
the court having jurisdiction of such civil or criminal cause is held" governs where it is

not inconsistent with section 1983. See also Theis, Shaw v. Garrison: Some Observations on
42 U.S.C. § 1988 and Federal Common Law, 36 La. L. Rev. 681 (1976).

291
id. at 589-90 n,5.

"•41 U.S. (16 Pet.) 1 (1842). See supra note 60.
2,9"A state statute cannot be considered 'inconsistent' with federal law merely because

the statute causes the plaintiff to lose the litigation." Robertson, 486 U.S. at 593. As in
Tomanio, the Court rejected a Sullivan-like construction of section 1988 which would have allowed

a plaintiff to choose the more favorable of state or federal law. "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." Id.
i00

Id, at 593-94 n.ll.

"'Justice Blackmun dissented with Justices Brennan and White. The dissent took ex-

ception to the majority's starting point — that section 1983 and federal law were deficient. Id.
at 595 (Blackmun, J., dissenting). Rather than conclude that federal law was not "adapted

to the object," the dissent would have found a federal rule through the interplay of section 1983

and federal doctrine, Justice Blackmun noted that in Sullivan, the section 1983 plaintiff had a
choice between state and federal law, depending on which better served the plaintiff's needs.

Id, at 596-97 (Blackmun, J,, dissenting). Although there was no civil rights case on point,

the dissent would have found that section 1983 was not deficient due to the ability to derive

a rule from its policies, i.e. the creation of federal common law. Justice Blackmun also



1986] SECTION 1988 721

After Robertson, the Court decided Carlson v. Green?02 Carlson was

a Bivens action
303

in which the question of survivorship of a fourth amend-

ment claim against a federal official arose. Justice Brennan's majority

opinion concluded that uniformity was an overriding concern in that

case.
304 Further, he concluded that section 1988 did not apply and that

there was no interest in applying state law in a federal action against federal

officials.
305 The majority fashioned a uniform rule that Bivens actions

absolutely survived.

Both Justice Powell concurring and Justice Rehnquist dissenting would

have applied section 1988 and its directive to apply state law. 306 Justice

Powell thought it unseemly that federal and state officials were covered

by different rules of liability.
307

Justice Rehnquist rejected uniformity as

being a compelling reason for not following Robertson. He viewed sec-
tion 1988 as accommodating federalism values by allowing federal courts

to defer to state rules.
308

This precedent established that section 1988 directs courts to apply

state survivorship laws to section 1983 actions against persons acting under

color of state law. 309 Only when such state law is inconsistent with sec-
tion 1983 may it be rejected.

D. Summary: Section 1988 Precedent

The Supreme Court has recognized section 1988 provides a guide to

sources of law in section 1983 cases and in suits involving other civil rights

statutes. Section 1988 is triggered by a determination that section 1983

is deficient—that section 1983 does not sufficiently prescribe the rule of

advocated a lesser standard establishing inconsistency with section 1983 and allowing more fre-

quent rejection of state law in cases where section 1988 applied. Id. at 596 (Blackmun, J., dissent-

ing). Further he would have limited operation of section 1988 to matters of procedure and

remedy only. Id. (Blackmun, J., dissenting).
302446 U.S. 14 (1980).
303A Bivens action refers to claims asserted against federal officials by implying a cause

of action from the Constitution itself. Because section 1983 reaches only action under color of

state law, claims against federal officials cannot be asserted under section 1983. See Bivens v.

Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
i0*Carlson

y
446 U.S. at 24.

i0i
Id. at 24 n.ll.

yob
Id. at 29 (Powell, J., concurring); id. at 48 (Rehnquist, J., dissenting).

301
Id. at 30 (Powell, J., concurring).

iot
Id. at 48, 50 n.16 (Rehnquist, J., dissenting).

30The Court has left open the possibility that a state law that does not allow survival
or that abates actions wherein the decedent died as a result of the alleged civil rights depriva-

tion may be inconsistent with section 1983. See Robertson, 436 U.S. at 594. But see Black v.

Cook, 444 F. Supp. 61 (W.D. Okla. 1977) (a § 1983 suit based on plaintiffs' minor son's

death from injuries sustained in a beating while incarcerated in county jail which was dismissed

pursuant to state law governing abatement of actions).



722 INDIANA LA W REVIEW [Vol. 19:665

law for the case at bar. 310 The courts are not free, in the first instance,

to fashion common law rules to fill in the gaps of section 1983. After
considering other federal law, they must look to state law. State law is

applied unless it is inconsistent with the purposes of the civil rights act

in issue.
3 " If there is no applicable state law, then the courts may fashion

a federal rule based on the purposes of section 1983. Lower courts general-

ly follow this section 1988 analysis. 312

Confusion remains, however, regarding when section 1988 is
triggered—that is, when section 1983 is deficient—and there are no clear
standards to govern a determination of whether state law is consistent

with the purposes and policies of section 1983. These issues will be dis-

cussed in the next part of this article.

VI. Proposed Application of Section 1988 to the

Construction of Section 1983

Section 1983 is not a comprehensive statutory provision, and it pro-

vides for few contingencies in its enforcement. Rather, it is a very general

expression of a fundamental proposition—the deprivation of civil rights
under color of state law will not be tolerated and may be redressed by
private, civil actions for damages and equitable relief. Because it does

not provide a cohesive scheme for enforcement or execution of the private

remedy created, difficult problems of construction and interpretation plague

section 1983, often impairing its efficacy as a vehicle for the vindication

of civil rights. 3 ' 3

The use of section 1988 will not cure all problems inherent in section

1983 construction. Section 1988 nevertheless provides a very pragmatic,

procedural approach to the resolution of some issues. It mandates a struc-

ture for the construction of section 1983 and establishes some basic

guidelines for its application.
314 Analysis under section 1988 improves on

31
"This determination is the key distinction between the immunity cases and statute

of limitations cases. In the immunity cases, the Court defacto concluded that section 1983 and

federal law were not deficient by drawing from history and fashioning doctrines in accord

with the perceived purposes of section 1983. See supra text accompanying notes 98-148. By not

recognizing that section 1983 and federal law were deficient in the immunity cases, the Court

avoided operation of section 1988.
3 "This article argues that both state common law and statutory law are to be con-

sidered pursuant to section 1988. See supra text accompanying notes 219-22.
il2See Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984); Brown v. United

States, 742 F.2d 1498 (D.C. Cir. 1984); McFadden v. Sanchez, 710 F.2d 907 (2d Cir.),
cert, denied, 464 U.S. 961 (1983); Guyton v. Phillips, 532 F. Supp. 1154 (N.D. Cal. 1981).
These cases all refer to, but decline to follow, Professor Eisenberg's restricted use of sec-

tion 1988.
3l3

Section 1983 suits can become bogged down in collateral litigation. Wilson v. Gar-
cia, 105 S. Ct. 1938, 1945 (1985).

31
"Section 1988 also operates in the context of sections 1981 and 1982. For the purposes

of this article, section 1988 will only be discussed vis-a-vis its application to section 1983.



1986] SECTION 1988 723

the ad hoc application section 1983 typified in the immunity cases. As
an express congressional command, section 1988 fully justifies considera-
tion of developments in common law after 1871, an issue which has
polarized the Court in some section 1983 decisions. 315 Further, section

1988 requires that almost absolute primacy be accorded the basic pur-

poses of section 1983, clearly protecting those purposes from random in-
fringement and erosion by competing policy considerations. 316

Section 1988 analysis consists of discrete inquiries that are undertaken

in serial order: (a) determination of whether or not section 1983 is defi-

cient; (b) determination of whether or not there is any other applicable

federal law; (c) examination of state law if other federal law is deficient;

(d) application of state law if it is not inconsistent with the purposes of

section 1983; and (e) if both federal and state law are inadequate to fill

the interstices of section 1983 then the Court may exercise common law
powers and fashion a federal rule. The remainder of this article will discuss

each of the above steps as they relate to the proposal for a more active

role for section 1988 in section 1983 adjudication.

A. Determining the Deficiency of Section 1983

1. Avoidance of the Issue.—The immunity cases present a classic
study of heroic attempts by the Supreme Court to find that section 1983

is responsive to many issues which in fact were not addressed in its text
or history. Although section 1983's language and legislative history con-

tain no express statements regarding the immunity of governmental of-

ficials and in fact indicate a strong presumption that such persons are

liable, the Court has purported to find that the section provides for an

elaborate scheme of immunity defenses. However, to achieve this the Court

has had to consider subsequent developments of policy and law in fashion-

ing a doctrine of immunities for section 1983. 317

In a non-immunity case, the Court has recognized that a strictly

historical approach has not been taken in its decisions:

[I]n constructing immunities under section 1983, the Court has

consistently relied on federal common-law rules. ... [I]n at-
tributing immunity to prosecutors, Imbler v. Pactman ... to

judges, Pierson v. Ray . . . ; and to other officials, matters on
which the language of section 1983 is silent, we have not felt

bound by the tort immunities recognized in the particular forum

State and, only after finding an "inconsistency" with federal stan-

dards, then considered a uniform federal rule. Instead, the im-

31
'See infra text accompanying notes 353-62 for discussion of Smith v. Wade, 461 U.S.

30 (1983).
ilbSee infra text accompanying notes 343 and 367-70.
ul
See supra text accompanying notes 99-148.



724 INDIANA LA W REVIEW [Vol. 19:665

munities have been fashioned in light of historic common-law con-
cerns and the policies of the Civil Rights Acts. 318

The Court has exercised federal common law powers to fashion federal
immunities. Although state law frequently informed this exercise of judicial

lawmaking, it did not receive the deference it would have commanded
under section 1988. The purposes of section 1983 were not weighed against

countervailing policies in the manner required by section 1988.

In the immunity cases, the Court engaged in a process of construing

section 1983 which expressly relied on its language, which was largely

uninfluential,
319 and on its history. Other section 1983 decisions have been

rendered on a similar basis. 320 By relying on history, 321 and supplement-

ing it with subsequent developments in law and policy, the Court has

effectively concluded that the statute is not deficient and that Congress,

in section 1983's one hundred seven words,322 addressed the questions of

executive, prosecutorial, judicial, legislative, police officer, prison guard,

school board, municipal and county immunity; 323 whether or not state

court actions could be stayed pending federal section 1983 actions; 324 the

relationship of section 1983 to habeas corpus; 325 stay of federal court pro-

ceedings;
326 nature of damages available under section 1983; 327 the rela-

tionship of section 1983 to the eleventh amendment; 328 and the applicabil-

ity of res judicata and collateral estoppel to section 1983 suits. 329

Realistically, the forty-second Congress in passing the Ku Klux Klan
Act in 1871 did not provide for all these matters in section 1983. Although

the Court appears to have conceded as much by considering post- 1871
common law and policy developments and by exercising of common law

'"Robertson v. Wegmann, 436 U.S. 584, 597 (1978) (Blackmun, J., dissenting) (cita-
tions omitted). For a similar acknowledgment by the Supreme Court, see Carey v. Piphus,

435 U.S. 247, 258 n.13 (1978).
115

'See supra text accompanying notes 40-43.
i20

See, e.g., Wilson v. Garcia, 105 S. Ct. 1938 (1985); see also infra text accompanying

notes 320-29.
i2, See supra text accompanying notes 44-79.
322

See supra text accompanying note 5 for text of section 1983.
J23

See supra text accompanying notes 99-148 for discussion of immunity cases; see

also Moore v. County of Alameda, 411 U.S. 693 (1973) (county liability) and discussion
of municipal liability in Monell and Monroe, supra text accompanying notes 20-37 and 51-68.

i24See Mitchum v. Foster, 407 U.S. 225 (1972).
i2iSee Prieser v. Rodriguez, 411 U.S. 475 (1973).
i26See Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Younger v. Harris, 401 U.S.

37 (1971); England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 (1964); Railroad

Comm'n v. Pullman, 312 U.S. 496 (1941).
"'Carey, 435 U.S. 247.
328Quern v. Jordan, 440 U.S. 332 (1979).
32,Migra v. Warren City School Dist. Bd. Of Education, 465 U.S. 75 (1984); Haring

v. Prosise, 462 U.S. 306 (1983); Allen v. McCurry, 449 U.S 90 (1980).



1986] SECTION 1988 725

powers, 330 it has not made an express determination of deficiency. Thus,
section 1988 has been avoided.

It is abundantly clear that section 1983 is deficient as to most of the

foregoing issues. The crux of the section 1988 problem is: in what cir-
cumstances should the Court acknowledge this deficiency and turn to sec-

tion 1988? The mounting frustration of some members of the Supreme
Court and lower federal courts with the fantastic voyages through the

minds of the forty-second Congress and the legal history of 1 87 1 suggests

that increased recognition of section 1988's role is past due. The act of
expressly acknowledging that section 1983 is deficient with respect to many
issues is all that is required to trigger section 1988.

2. When It Should Be Determined That Section 1988 Is Deficient

—

Because "plain meaning" does not play a significant role in the inter-

pretation of section 1983, 33 ' the determination of deficiency becomes a

matter of articulating when reliance on extrinsic aids to construe section
1983 has become so attenuated that it is an unjustifiable basis on which

to proceed. Where history reveals that a specific issue was explicitly

addressed in congressional debate or was universally established under state

and federal common law in 1871, a modern court may be justified in
relying upon such sources of law. For example, judicial immunity was

firmly entrenched in 1871 in all states. Perhaps it is reasonable to assume

that congressmen were aware of such a clearly established rule and would

have either discussed it in debate or expressly referred to it in the statutory

text if they intended to modify or abrogate it. This is to be distinguished

from cases where a common law rule was vague in 1871 and lacked any
universal acceptance, such as is the case with the availability of punitive

damages. 332

Even where the existence of a common law rule was notorious in 1871,
the problem remains to establish the theoretical justification for asserting

that such a rule was incorporated into section 1983. 333 Such incorpora-

tion may cause section 1983 to be hamstrung by doctrines that arguably
existed in 1871 but which have undergone significant rethinking and evolu-

tion in the past century.
334

Recent section 1983 litigation suggests that very few issues will be

resolved on the basis of express and notorious 1871 common law. Even
regarding the question of judicial immunity under section 1983, the Court

has apparently felt pressed to justify its creation of absolute immunity

"°See supra text accompanying notes 99-148.
3ii See supra text accompanying notes 38-43.
ii2See Smith, 461 U.S. 30, discussed infra text accompanying notes 353-62.

333 See supra text accompanying notes 66-77.
iU

Id.



726 INDIANA LAW REVIEW [Vol. 19:665

by reference to considerations beyond the legal vista of 1871.
335 Where

a matter did not have almost universal recognition in 1871, reliance on

the "common law of 1871" is misplaced. 336

Very few section 1983 issues will be found to have been explicitly

addressed by members of the House or Senate in their deliberations on

section 1983's predecessor.
337 Even when an issue was impliedly discussed,

such debates are a dubious source of law for section 1983. For example,

the forty-second Congress tangentially considered the question of municipal

liability in its debate over the Sherman Amendment to the Ku Klux Klan
Act.

338
In Monroe v. Pape> i39 the rejection of the Sherman Amendment

was interpreted as conclusive proof that Congress did not intend to make
municipalities accountable under section 1983. 340 In Monell v. Department

of Social Services, the Court concluded exactly the opposite after it re-

jected Monroe's reading of this same legislative history. 341 Few issues
received even this indirect discussion in the debates of the forty-second

Congress. The debates' utility as a source of law for filling in the gaps

of section 1983 is therefore minimal.

When a court is called upon to grope beyond the clear and notorious
common law of 1871 342 or the express discussion of an issue in the con-
gressional debates of the forty-second Congress, it should acknowledge

that section 1983 is deficient. Once this conclusion is reached, section 1988

is triggered and should be utilized by courts in their efforts to apply sec-

tion 1983.

B. Determination of Whether Other Federal Law Applies

Once it is determined that section 1983 is deficient and section 1988
is triggered, the first inquiry is whether other federal law is available to

fill the gaps in section 1983. Any statutory federal law that addresses the

niSee Pierson v. Ray, 386 U.S. 547 (1967), discussed supra text accompanying notes

99-112.
iibSee supra text accompanying notes 78-79.
111See supra text accompanying notes 44-50.

"'The Sherman Amendment was rejected by Congress. It would have made municipalities
liable for injuries caused by riotous conduct of persons within the city's jurisdiction. See

supra note 53.
33,365 U.S. 167.
i40

Id. at 188-90.
u, Monell, 436 U.S. at 692 n.57; see also Owen v. City of Independence, 445 U.S.

622, 664-65 (1980) (Powell, J., dissenting); Moor v. County of Alameda, 411 U.S. 693,
709-10 (1973).

342
This will almost always be the case since very few issues will be clearly addressed

in the debates or by 1871 common law. With the exception of Pierson, 386 U.S. 547, the
section 1983 cases surveyed in this article have involved ambiguous congressional debate or
divergent analyses of 1871 common law.



1986] SECTION 1988 727

deficiency in section 1983 is potentially applicable. Even federal law,

however, is applied "only so far as such laws are suitable to carry . . .

[section 1983] into effect;" where they are "not adapted to the object

or are deficient in the provisions necessary to furnish suitable remedies

and punish offenses against law," they cannot be applied. 343

Federal statutory law should be presumptively applicable if it addresses

an issue on which section 1983 is silent. The standard to overcome the
presumptive applicability of such a federal statute should not require the

same burden as an implied repeal analysis. Congress in section 1988

prescribed a standard that is less strict than that articulated for implied

repeal. Complete incompatibility is not required; rather, the standard is

unsuitability. A federal statute should be deemed unsuitable if it can not
be adapted to the purposes of section 1983. To determine suitability, courts
should decide whether, on the whole, application of the other federal

statute would be compatible with the purposes and policies of section 1983.

The Court has often dealt with the question of the applicability of
other federal statutes to section 1983 by addressing the issue in terms of

implied repeal. For example, in Allen v. McCurry, 344 the Supreme Court

concluded that section 1983 did not impliedly repeal the Full Faith and

Credit statute.
345 Thus, section 1983 was held subject to 28 U.S.C. sec-

tion 1738's command that state rules of preclusion control federal litiga-
tion of civil rights claims. 346

If the inquiry in Allen had been carried out in the manner prescribed

by section 1988, it arguably would not have required a finding of implied

repeal to avoid the absolute command of section 1738. 347 Rather, a show-
ing that the Full Faith and Credit statute was not suited to the purposes

of section 1983 would have sufficed. 348 The language of section 1988 re-

J4,42 U.S.C. § 1988 (1982).
J44449 U.S. 90 (1980).
34
'Id. at 97-98.

U6
Id. at 99; see also Migra, 465 U.S. at 83-85.

J47 Implied repeal is a very high standard. To prevail on a theory of implied repeal,
a party must demonstrate that the two statutes cannot be read consistently. In Marrese

v. American Academy of Orthopaedic Surgeons, 105 S. Ct. 1327 (1985), the Supreme Court

indicated that there may be an additional exception to preclusion under section 1738 based on
the intent of Congress vis-a-vis the federal statute giving rise to the subsequent action. Id.

at 1334-35.

"'Justice Marshall indicated in Haring v. Prosise, 462 U.S. 306 (1983), that additional

exceptions to section 1738 could possibly be found based on section 1988. This reference

may have been in relation to the test that other federal law must be consistent with section

1983 and, in some circumstances, section 1738 preclusion will not be consistent with the

policies underlying section 1983. Justice Marshall's remark may have also been by way of
analogy to the limits on the incorporation of state law pursuant to section 1988, i.e. con-

sistency with section 1983, which are not contained in section 1738. Id. at 313-14.



728 INDIANA LAW REVIEW [Vol. 19:665

quires only a showing of inconsistency with section 1983; it is a lower

standard than that required for implied repeal. 349

There is some question whether federal courts should also consider

existing federal common law at this level of section 1988 analysis. Char-
don v. Juan Fumero Soto is particularly illuminating on this point. Both

the majority and dissenting opinions discussed federal case law as poten-

tially supplying an answer to the section 1983 issue before the Court. 350

The majority apparently concluded, because the particular precedent under

discussion did not involve section 1983, that it did not supply a rule of

law for section 1983. Dissenting, Justice Rehnquist argued that the non-

section 1983 case law did apply because it dealt with the same procedural

issue before the Court. Both suits raised the question of whether or not a

statute of limitations was tolled pending the denial of class certification

under rule 23 of the Federal Rules of Civil Procedure.

The language of section 1988 does not differentiate between common
law and statutory law where it directs that federal jurisdiction should be

exercised in conformity with "the laws" of the United States. While an

argument could be made that only statutes and the Constitution are in-
cluded, it is the position of this author that federal section 1983 deci-

sional law should apply at this level of analysis. 351

The argument for section 1988 advanced herein is prospective and
functional. It is not necessary to disturb existing precedent on a wholesale

basis to promote section 1988 as a guide to resolving new issues in sec-
tion 1983 cases.

Section 1983 decisions, where on point, carry the independent authority

of stare decisis and thus control in the jurisdiction to which they are rele-

vant. In effect, the presence of section 1983 precedent, if on point, goes

to the heart of the deficiency found to exist in section 1983. Therefore,

the question of municipal liability, for example, would not be addressed

i49See infra text accompanying notes 367-70. Arguably, therefore, the full faith and

credit statute would not be applicable to section 1983 claims because strict adoption of

state preclusion rules does not always serve the purposes of section 1983.
ii0See supra text accompanying notes 258-66.

"'Section 1988 provides that "federal law" is applicable to section 1983 analysis. Later,

section 1988 speaks of the "common law" as modified by state statutes and constitutions.
Although it is unclear whether decisional law was expressly incorporated as federal "law,"

there are at least two arguments for its application. First, since Erie Railroad Co. v. Tomp-
kins, court decisions are expressly acknowledged as carrying the authority of law in the

jurisdiction to which they relate. The Rules of Decision Act has been construed to require

application of state decisional law in diversity suits. Erie, 304 U.S. at 79-80; see also Eisenberg,

supra note 17, at 513. Second, case law arising in section 1983 cases carries the authority

of stare decisis. Other, non-section 1983 decisional law may also be considered in analyzing
applicable federal law. The Supreme Court in Chardon, 462 U.S. 650, has established some
precedent for the proposition that non-section 1983 case law will not be treated as relevant

and/or consistent. Id. at 662; see supra text accompanying notes 264-66.



1986J SECTION 1988 729

anew pursuant to state law because available federal law, Monell, sup-
plies a rule which is presumptively consistent with the purposes of section

1983. An exception would lie only if authoritative federal precedent was
overruled. Pursuant to section 1988, federal section 1983 precedent should

be subject to review to determine if it is consistent with the purposes of

section 1983. Issues which have not been authoritatively addressed by a

court and which are not the subject of a federal statute cannot be resolved

by application of federal law. 352

The first two steps of section 1988 analysis break down into related,
discrete inquiries: a) is the matter expressly covered by the language of

section 1983; do the debates expressly deal with the issue; was common
law in 1871 clear and notorious and did Congress incorporate such com-

mon law; and b) does federal statutory law deal with the issue; would
its general application be consistent with the underlying purposes of sec-

tion 1983; and is there available section 1983 federal case law that sup-

plies an answer and is it consistent with the purposes of section 1983?

As an illustration of these initial inquiries, consider the question of
the availability of punitive damages under section 1983, which was decided

by the Supreme Court in Smith v. Wade.**1 Both the majority and dis-

sent therein engaged in extensive forays through the history of section

1983. Justice Brennan, for the majority, expressly stated that post- 1871

common law was relevant to the inquiry:

Justice Rehnquist's dissent faults us for referring to modern tort

decisions in construing section 1983. Its argument rests on the

unstated and unsupported premise that Congress necessarily in-

tended to freeze into permanent law whatever principles were cur-

rent in 1871, rather than to incorporate applicable general legal

principles as they evolve. . . . The dissents are correct, of course,

that when the language of the section and its legislative history
provide no clear answer, we have found useful guidance in the
law prevailing at the time when section 1983 was enacted; but
it does not follow that that law is absolutely controlling, or that

current law is irrelevant. On the contrary, if the prevailing view
on some point of general law had changed substantially in the
intervening century (which is not the case here) we might be highly

reluctant to assume that Congress intended to perpetuate a now
obsolete doctrine.

354

'"Although it is the position of this article that as a matter of interpretive process,

many section 1983 decisions were wrongly decided, it is not necessary to disturb the body
of section 1983 precedent to begin giving appropriate attention to section 1988.

353461 U.S. 30 (1983).
ii4

Id. at 34-35 n.2. Justice Brennan relies on the immunity cases to support this position.



730 INDIANA LA W REVIEW [Vol. 19:665

The majority concluded, nonetheless, that punitive damages were available

for reckless as well as intentional conduct at 1871 common law. 355 Justice
Rehnquist, dissenting, concluded that punitive damages were not available

for reckless conduct under 1871 common law. 356 Justice O'Connor, also
dissenting, was exasperated with the historical inquiry of both the ma-

jority and dissent. 357

Smith stands as a recent example of a historical construction of sec-

tion 1983 run amok. According to the model of application advocated

in this article, it is clear that the availability of punitive damages for non-

intentional conduct was not addressed by section 1983. 358 The majority

appears to have acknowledged this: "We noted in Carey that there was
little in the section's history concerning the damages recoverable for this

tort liability."
359

Justice Brennan essentially determined that a uniform

federal rule in favor of awarding punitive damages based on reckless con-

duct was consistent with the purposes of section 1983. Justice Rehnquist,

on the other hand, most likely believed that such a rule of damages was
not justified and would result in an increased number of section 1983
claims.

360

Justice O'Connor simply would have rejected the pretense that the

result was dictated by history and would have allowed creation of a

uniform federal rule against such punitive damages in accord with the

result reached by Justice Rehnquist. 36 ' She noted that the common law
status of such punitive damages in 1871 was not readily discernible. Even

if it were possible to state with certainty that a particular treatment of

the issue prevailed in 1871, Justice O'Connor would not necessarily have
allowed such a potentially obsolete rule to control the issue of construc-

tion for section 1983.
362

None of the opinions in Smith considered the operation of section
1988. All three opinions effectively exercised common law powers to fill
the gap in section 1983. No modern federal or state law was considered
as being applicable to the issue or as controlling. Under the model of

adjudication advocated in this article, however, the Court is not free to

J5
7rf. at 39-44.

li6
Id. at 58-70 (Rehnquist, J., dissenting). Justice Rehnquist imputes knowledge of 1871

common law to the members of the 42nd Congress by stating that most of the congressmen
were lawyers and as such must have known what the law was. Id. at 66 (Rehnquist, J.,
dissenting).

ii7
Id. at 92-94 (O'Connor, J., dissenting). See supra text accompanying note 78.

iif
Id.

ii9
Id. at 34 (citations omitted); see also id. at 92-93 (O'Connor, J., dissenting).

it0
Id. at 90-91 n.17 (Rehnquist, J., dissenting).

J6
7rf. at 94 (O'Connor, J., dissenting).

it2
Id. at 93 (O'Connor, J., dissenting).



1986] SECTION 1988 731

exercise common law discretion until it first considers and rejects any
potentially applicable federal law. Moreover, after rejecting federal law

as a source of guidance, the Court must consider state law pursuant to

section 1988.

C. Consideration of State Law

Once a court concludes that federal law is deficient, section 1988 re-
quires the court to consider "the common law, as modified and changed
by the constitution and statutes of the state wherein the court having

jurisdiction of such civil . . . cause is held." 363 Both codified and deci-

sional law of the state in which the federal court sits must be considered. 364

Initially, this amounts to no more and no less than the task confronting
federal courts in diversity suits.

Section 1988 was designed to allow the interplay of state law in the

enforcement of federal civil rights where state law was at least as protect-

ive of civil rights as federal law. At this level of section 1988 application,

the court must attempt to identify state law which is arguably relevant

to the issue presented by the civil rights litigation. The court should be
guided by the characterization of section 1983 as a personal injury or

tort-like provision when reviewing state law. 365

D. State Law Is Applied Unless It Is Inconsistent with Section 1983

Once a court has identified analogous state law, it is required to apply

such law to the section 1983 case unless its use would be inconsistent

with the "Constitution and laws of the United States." 366 Analysis of a

state law's consistency with federal law must focus on the purposes of

section 1983.
367

Further, the section 1988 precedent previously discussed

indicates that this inquiry is not limited to the outcome of a specific case
but, rather, concerns the operation of a specific state rule vis-a-vis section

1983 generally. 368 Where the use of state law would substantially undermine

the fundamental purposes of section 1983, such law should be found to be

inconsistent with federal law.

,6J42 U.S.C. § 1988 (1982).
i6
*See supra text accompanying notes 212-22.

"'This characterization of section 1983 was pronounced in Wilson v. Garcia. See supra

text accompanying notes 271-77. In addition, given the clear purpose of section 1983, to

render state actors liable, the court should also contemplate the applicability of provisions

found in state tort claims acts.
36642 U.S.C. § 1988 (1982).
lblSee supra text accompanying notes 80-97.
ibtSee supra text accompanying notes 243-3 1 1

.



732 INDIANA LA W REVIEW [Vol. 19:665

Where state law is found to be inconsistent with the purposes of sec-

tion 1983, arguments in favor of its application, premised on federalism,

must be rejected. Section 1988 embodies federalism principles. It defines

the deference to be accorded state law in section 1983 cases; if section 1988

has been properly applied, federalism concerns will be fully served.

The other end of federalism tension—the need for national uniformity

—

is also accommodated at this step of section 1988 application. When a court
considers whether application of a state law rule would be inconsistent,

generally, with section 1983, it is attempting to preserve and fulfill the pur-

poses of the civil rights law. If the court concludes that, again generally,

the very fact of application of different rules vis-a-vis a particular matter

would itself be inconsistent with the purposes of section 1983, that may be
cause to reject state law, regardless of its specific content. National uniform-

ity may at times be inextricably linked to the fundamental purposes of sec-
tion 1983 which are primary in section 1988.

For example, in Garcia the Court was appropriately concerned that

the lack of a uniform characterization of section 1983, for the purpose

of determining the most analogous state statute of limitations, seriously

threatened section 1983's efficacy as a remedial provision. Because the

confusion and delay generated by attempts to characterize section 1983

were inconsistent with the purposes of section 1983, the Court went no fur-

ther than to designate all section 1983 actions as personal injury actions as

a matter of federal common law. 369 It did not prescribe a uniform statute
of limitations as a matter of federal law. Rather, it preserved the Tomanio

rule that pursuant to section 1988, state statutes of limitations apply. This

indicates that only very serious threats to the fundamental purposes of sec-

tion 1983 will be sufficient to preclude the application of state law that is

itself not inconsistent with section 1983.

In Smith v. Wade, if Missouri law allowed punitive damages to be
awarded in personal injury actions based on reckless conduct, there would
be nothing inconsistent with applying such state law to the section 1983 ac-

tion. The purposes of section 1983 would in no way be undermined, and
in fact, the purpose to deter violations of civil rights would be promoted.
If, however, under Missouri law no punitive damages were available in an
analogous situation, then the court would have to consider whether this denial

of punitive damages abrogated the purposes of section 1983, most specifically,

section 1983's purpose to deter violations of constitutional rights. On balance,
even though deterrence would not be furthered by a prohibitive Missouri
law, neither would section 1983's deterrent purpose be impaired, since com-

pensatory damages and equitable relief would remain available remedies.
Thus, it would not be inconsistent with the purposes of section 1983 to ap-
ply state law of punitive damages regardless of its content.

"'Garcia, 105 S. Ct. at 1945-47.



1986] SECTION 1988 733

E. Creation of Federal Common Law

When no federal or state law is applicable pursuant to the foregoing
analysis, a court must exercise its common law powers to resolve the sec-
tion 1983 construction issue. For example, assume arguendo that there

were no federal doctrine of immunity for executive officials; if state law

abrogated executive immunity, application of such state law would be fully

consistent with the purposes of section 1983. On the other hand, if state
law provided that executive officials were absolutely immune from liabil-
ity, such an immunity would be inconsistent with the purpose of section

1983 to make state actors liable. Because absolute immunity would be
clearly inconsistent with the purposes of section 1983, this state law rule

would be inapplicable pursuant to section 1988. The federal court would
then have to fashion a rule taking into consideration the purposes of sec-

tion 1983.

Essentially, this is what the Court did in the immunity cases. However,

under the section 1988 proposal advocated herein, the Court must, in the

first instance, be guided by the purposes of section 1983. Section 1988

requires that these purposes be given very high priority when balanced
against other policy considerations. Section 1988 analysis differs from the

methodology in the immunity cases by shifting the focus away from history

and emphasizing the purposes of section 1983.

IV. Conclusion

Utilization of section 1988 as a rule of construction for section 1983

cases provides clarity to lower federal courts regarding the process of con-

struing section 1983. It justifies the consideration of modern common law
developments while placing appropriate limits on the operation of such

law. Further, as a federalism provision, it strikes a balance between state

and federal law in the civil rights enforcement scheme. Hence, comity

is served and states' interests are protected through the required deference

towards state law. The integrity of section 1983 is guaranteed by granting

primacy to its fundamental purposes.