civ rights lit 2013 syllabus

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Civil Rights LitigationSpring 2013

Professor John Parry

Office: LRC 237 Office Hours: drop by or appointmentOffice phone: 503-768-6888 Email: [email protected]

Introduction

This course explores federal causes of action that allow individuals to seek remedies for violationsby government actors (state or federal) of federal rights. We will focus on 42 U.S.C. 1983, whichcreates a federal cause of action allowing damages or equitable relief for violations of the Consti-tution and laws. We will also discuss related causes of action against private parties. In addition,we will consider federal habeas corpus law, which creates a different kind of civil rights cause ofaction. Note that with the exception of due process, we will not spend much time on the specificviolations of constitutional rights that give rise to these claims, but the various cases we read will

provide a good overview of the kinds of claims that can be brought and their chances of success.We will also consider the availability of claims for violations of statutory and international rights.

ClassScheduleTuesdayandThursday,910:25a.m.,Room8

Required Reading

1) Jeffries, Karlan, Low & Rutherglen, Civil Rights Actions: Enforcing the Constitution(2nd ed. 2007) [hereinafter referred to as CBfor casebook];

2) portions of the 2012 Supplement to the casebook, which will be circulated by email asa pdf document [hereinafter referred to as CBS);

3) the supplemental readings that follow the syllabus [hereinafter referred to as Supp.],which are part of a draft Civil Rights Litigation casebook; and

4) supplemental materials on habeas corpus, circulated as a separate PDF document [here-inafter referred to as Habeas Supp.].

Recommended Reading

There are a number of treatises and collections of articles that address the issues we will discuss inclass. If you want to do additional reading, I would be happy to make some suggestions. Most

chapters of the casebook also include extensive bibliographical notes.

Policy on Internet and Cell Phone Use

I expect you to turn your cell phone(s) off during class. If you have a good reason (such as child

care, family illness, or the like) to keep it on, you must notify me. I also expect that, although most

of you will use laptops to take notes, you will not use them (either alone or in conjunction with a

cell phone) to access the internet during class unless I instruct you to do so for a class-related pur-


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pose. That means no emailing, texting, facebooking, surfing, or similar activities. I reserve the

right to sanction students who do not comply with this policy.

Grading

There are two options. The first option is to have your grade turn entirely on a limited open book

final examination. Limited open book means that you may use the casebook, any supplementalmaterials, your notes, and personal outlines or group outlines to which you contributed. I will do

my best to write the exam as a 3-hour exam, but you will have 4 hours to take it. You may take the

exam at any time during the exam period.

The second option is to have your grade turn on a combination of a paper and the exam. If you

choose this option, you will take the same exam, under the same conditions, but it will only count

for 2/3 of your grade. The other 1/3 of your grade will turn on a short paper (about 10 pages).

If you choose to do a paper, you must turn it in to me by hand or by email by midnight on the last

day of reading period. I suggest a targeted topic, such as how the Ninth Circuit (or some other cir-

cuit(s)) has addressed a particular issue, or perhaps an exploration of issues that we have not had

time to cover, such as procedural issues or structural reform litigation.

You do not have to let me know in advance which option you are choosing, although I am happy to

talk with you about possible paper topics. I will grade all of the papers together, and all of the ex-

ams together, and only after I have graded everything will I sort out whose grade turns only on an

exam, and whose grade turns on an exam and a paper.

Instructions

The syllabus assumes that we will cover each set of readings in one class, but that may change asthe semester moves on. Unless I tell you otherwise, you should always assume that your assign-ment for the next class will be the next set of readings on the syllabus.

Several of the reading assignments are fairly long; you should focus on the main cases, the state-ments of doctrinal rules that they (sometimes) provide, and the rationales for those rules.

Syllabus

I. The State Law Background to Federal Civil Rights Litigation

** This is the reading for the first class **

1. Initial Fact Patterns; Tort Law and Civil Rights Litigation (Supp. 2-19)

** Note that in class we will spend a fair amount of time discussing the fact

patterns.

II. 42 U.S.C. 1983 and theBivens Action

A. Claims Against States and State Actors

2. People Acting under Color of State Law (CB 32-52)


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3. States, Local Governments, and Supervisors (CB 52-60, 173-188, Supp. 27-31)

B. Claims Against the Federal Government and Its Officials

4. Immunity, Tort Claims, and Constitutional Claims (Supp. 19-26, CB 60-73 [through

n.5], CBS 1-2)

C. Immunities for Categories of Official Conduct

5. Absolute Immunity (CB 74-96, CBS 2-9, CB 100-105, CBS 9-11)

6. Qualified Immunity: Development of the Doctrine (CB 105-132)

7. Qualified Immunity: The Current Approach

(CBS 11-24, CB 136-47, CBS 30-32, CB 169-173, CBS 37)

8. Local Government Immunity? (CB 188-215)

D. Remedies

9. Damages (CB 343-385)

10. Equitable Remedies and Attorney Fees

(Supp. 42-43, CB 848-52, CBS 149-50, CB 994-1012, Supp. 43-49, CB 386-408,

425-429 nn. 2-7)

III. Federal Habeas Corpus Actions

11. Introduction, Scope of Review, Innocence, and the Suspension Clause

(Habeas Supp. 1213-41)

12. Retroactivity and Relitigation (Habeas Supp. 1241-69)

13. Procedural Default, Successive Petitions, Exhaustion, and Federal Convictions

(Habeas Supp. 1269-1310)

14. The Relationship between Federal Habeas Corpus and 1983 (CB 474-508 [through

n.3], CBS 56-61; CB 508-515 [though n.5])

IV. Additional Reconstruction-Era Civil Rights Legislation:

42 U.S.C. 1981, 1982 & 1985(3)

15. Reviving 42 U.S.C. 1981 & 1982 (CB 619-656)

16. 1981 and Title VII of the 1964 Civil Rights Act (CB 656-687; CBS 85-86)

17. 1981 and 1983; 42 U.S.C. 1985(3) (CB 688-728)


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V. Complications of 1983 Litigation

18. Additional Fact Patterns; Qualified Immunity and Reasonableness (Supp. 32-41,

CB 147-152)

** Note that during class 18, but also during all of classes 18-23, we will spend

a fair amount of time discussing the new fact patterns.

19. Local Government Liability: Identifying Policies and Practices; Failure to Train

(CB 215-244 [through n.1], CBS 37-40, CB 246-257)

20. Substantive Claims: The Problem of Due Process Claims (CB 257-285)

21. Substantive Claims: Due Process and the Role of State Law (CB 287-315)

22. Substantive Claims: Federal Statutory Rights (CB 316-341)

23. Procedural Issues: Res Judicata, Statutes of Limitations, Notice of Claim Statutes,

Right to a Jury (CB 515-60, 568-69)

VI. International Legal Rights and Civil Rights Litigation

24. Section 1983 and International Law; Introduction to the Alien Tort Statute

(Supp. 51-78)

25. Other Causes of Action for Enforcing International Rights (Supp. 78-111)

Class 26 will be a review class (unless we fall behind during the semester).

civ rights lit 2013 syllabus

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