Civil rights statute a 'judge-made law,' says Stanford University School of Law Professor Pamela Karlan

Legal scholars from across the nation converged in Kansas City last week to grapple with constitutional rights litigation.

They homed in on the Civil Rights Act of 1871, specifically Section 1983 of Title 42 of the U.S. Code .

"Despite its anchoring in a statute, it is profoundly judge-made law," said Stanford University School of Law Professor Pamela Karlan.

The review came during the University of Missouri-Kansas City Edward A. Smith/Bryan Cave Lecture and Symposium - "Enforcing Constitutional Rights in the 21st Century. "

Karlan served as the two-day event's keynote speaker.

Karlan is co-director of Stanford Law School's Supreme Court Litigation Clinic, which has represented a party in more than 24 cases before the U.S. Supreme Court in the past five terms.

She specializes in constitutional law and litigation, which includes criminal procedure, civil rights and voting rights.

UMKC Professor David Achtenberg on Friday dubbed her a "tenacious fighter for the rights of the disadvantaged. "

Karlan criticized the legal doctrine surrounding Section 1983 for being "path dependent," meaning that the respective court decisions have been "very reactive" to decisions in other cases.

"That creates a huge violation remedy gap," she said.

She described the section as "transubstantive" in that it applies to a sweeping range of constitutional violations. It functions as a safety valve, enabling other constitutional values to be protected.

"To quote Maria from "The Sound of Music," 'When God closes a door he opens a window. ' Section 1983 is that window," Karlan said.

And while it also lays out compensation for victims of constitutional violations, she said the Supreme Court has taken a much more diminished role in this respect.

Another speaker at Friday's symposium emphasized the increasing rate of private entities becoming entangled in Section 1983 lawsuits.

The frequency of lawsuits in the era of governmental privatization is raising conceptual problems, as the section is intended to deal with governmental defendants, said Richard Frankel, associate professor at the Earle Mack School of Law at Drexel University and a former litigator at the Trial Lawyers for Public Justice.

As a result, Frankel said, the courts are trying to draw analogies or distinctions between governmental and private entities, which poses problems when considering protections from liability.

"It's had some bad or counterproductive effects," he said.

For example, he pointed to the numerous examples of private citizen management companies that run prisons for municipalities now.

In some cases, courts compare the management companies to municipalities and in other cases to municipal employees.

The comparison has significant implications, as municipalities are immune from punitive damages, but municipal employees are not, he explained.

Frankel referred to the 2001 U.S. Supreme Court case of Correctional Services Corp. v. Malesco, in which the court considered the private company the same as a governmental entity, so no punitive damages could be sought.

"It creates an uneven or unsound doctrine," he said. "Instead of focusing on analogy, the courts should recognize private entities as their own category. "

He called on the courts to avoid using the structure but conceded his solution was less than graceful.