Although much recent attention has been paid to qualified immunity, the biggest threat to civil rights enforcement is actually the lack of lawyers able and willing to represent people whose constitutional rights have been violated. There are small, tight-knit communities of civil rights lawyers with expertise and passion in the cities of the Great Migration, but few civil rights attorneys practice outside those urban areas. Limits on attorneys’ ability to recover fees mean that even attorneys willing to take civil rights cases will have financial incentives to decline meritorious cases if they would be expensive to litigate or if the expected damage awards are low.
People who bring civil rights cases pro se are far less likely to succeed than those with lawyers. Most pro se cases are dismissed for failure to plead cognizable claims in their complaints or for failing to prosecute their claims—bases for dismissal that do not necessarily reflect on their underlying merits.
When a meritorious pro se civil rights case is dismissed, not only the named plaintiff is harmed. Losses in these cases have negative downstream effects as well—frustrating future plaintiffs’ ability to overcome qualified immunity, prove municipal liability, and establish entitlement to injunctive relief.
Civil rights enforcement depends on lawyers’ willingness to bring cases on behalf of people whose rights have been violated. Unless and until more lawyers are willing to take these cases, abolishing qualified immunity and other proposed reforms will not achieve their intended aims. Any plan to restore the power and potential of § 1983 must include a blueprint to expand the number of lawyers who are bringing civil rights cases, expand the types of cases that they are bringing, and expand the locations where they are bringing them.
Repository CitationJoanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev. 641 (2023), https://scholarship.law.wm.edu/wmlr/vol64/iss3/3
64 William & Mary Law Review 641-706 (2023)