Document Type

Article

Publication Date

1980

Abstract

In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution is being extended inappropriately to resolve too many questions, rather than being husbanded for those situations where federal intervention is essential. This fear raises substantive questions about the interpretation of particular constitutional provisions - questions that are beyond the scope of this Article. I am concerned, rather, with the practical consequences of constitutional extension - consequences that arise from all constitutional tort suits. These consequences include a dramatic increase in the workload of the federal courts, and substantial encroachment on the authority of the states. Both problems - caseload and federal-state balance - are at issue in section 1983 equity actions, as well as damage actions.