Monday, August 19, 2019
Joanna C. Schwartz (University of California, Los Angeles (UCLA) - School of Law) has posted Civil Rights Ecosystems on SSRN. Here is the abstract:
The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded 100 times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem.
Scientists define ecosystems as communities of living and nonliving elements that are interconnected and interactive. I define civil rights ecosystems as collections of actors—including plaintiffs’ attorneys, state and federal judges, state and federal juries, and defense counsel—and legal rules and remedies—including state tort law, Section 1983 doctrine and defenses, damages caps, and indemnification policies—that are similarly interconnected and interactive. Variation in different aspects of a civil rights ecosystem determines the frequency with which claims against government are brought, the frequency with which those claims are successful, and the magnitude of their success.
In this Article, I describe some key elements of civil rights ecosystems and the ways in which these elements interact; wide variation in civil rights ecosystems across the country; and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1200 civil rights cases filed in five federal districts around the country and surveys and interviews of dozens of plaintiffs’ attorneys who represented plaintiffs in these cases.
Finally, I consider the implications of these observations. Understanding civil rights filings and payouts as the product of civil rights ecosystems reveals significant conceptual gaps in Section 1983 doctrine and scholarly debate about the relationship between constitutional rights and remedies, raises important questions about the mechanics and desirability of regional variation in constitutional protections, and offers insights valuable for courts, advocates, and government officials seeking to change the scope and success of suits to enforce civil rights.