Come to Los Angeles ;)

I’m so grateful to @profadamszimmerman.bsky.social for presenting my paper, (towards?) “A Theory of Statutory Torts,” at our faculty workshop—and for all of the insightful comments from everyone else! And, yes, we do have a great time workshopping (very rough) ideas at @uscgould.bsky.social!

It was wonderful to be back at Yale Law School today to present a working paper at the Yale-Toronto-Columbia Private Law Theory annual conference. I can't say I missed Pepe's pizza, but it was so nice to see some old (and older!) friends!

Beginning in 2020, the Supreme Court sent two signals it was easing off its qualified immunity crusade: 1) its decision in Taylor v. Riojas, holding qi should be denied for obvious violations, even if no case on point; 2) slowing its shadow docket qi reversals.

Does Zorn mark the end of #2?

As we brace for temperatures below 50F, something tells me Fiona’s never traveling back to the East Coast

This is definitely outside my area of legal expertise, but I’m not seeing obvious reasons why ICE—the U.S. Immigration and Customs Enforcement—should be operating abroad, at the Olympics…

I’m teaching a class on statutory torts this term, and next week’s class is on implied causes of action. Though we mostly focus on statutory cases, I also assign Bivens…

Does anyone have an article or other publication with the text of a bill to create liability for federal law enforcement officers? Not just what's wrong with the current situation but a proposed bill?

Opinion | The Simple Way Congress Can Stop Federal Officials from Abusing Protesters The Supreme Court gave people the right to sue federal officials for violating their rights. Now is the time for Congress to make it law.

Federal officers do not have absolute immunity, but there is a web of doctrines that make civil suits against them nearly impossible to bring successfully. Congress knew they needed to fix this in 2020, and new reasons why they should are coming fast and furious now. www.politico.com/news/magazin...

Thank you so much—it means a lot!

I admit that I do make “chicken parm” for Erin (upon her request)—and that is most definitely not an authentic Italian dish…

What is the operative definition of “inauthentic” here? Because carbonara is a debatable inclusion…

Here’s an old thread summarizing this piece:

Thrilled to see my job-talk paper in print! Many thanks to the amazing editors of the @califlrev.bsky.social!

Agreed 100%. And I have a feeling some of my best students will be left out—and not just because they might choose to prioritize their classes now. Still, I wish they didn’t need to deal with this unnecessary stress.

That’s a great question. Honestly, I’m guessing they must be going off of law school ranking, post-college work experience, and undergraduate grades. All of which seems…silly. (My two midterms are ungraded!)

So am I! I still remember the day (October 6!) when I was giving the usual “do something fun this summer” spiel during office hours, and my students kept nodding and nodding…until they explained to me what was happening with big-law recruiting.

Regardless of whose “fault” this is (firms blame schools; schools blame firms), everyone can agree this makes zero sense. My 1Ls were worrying about applying for 2L summer jobs (not a typo) even before we read Palsgraf—and they were asked to fly out for callbacks in the middle of 1L fall finals!

Erin and I had been talking about how much we missed fall here in LA…until last week, when fall reached to the two beautiful maple trees outside our home and the piles of leaves appeared. Still mildly strange to use a leaf blower in 81F weather, but a much needed break from exam writing!

If you’re curious, you can find the full article on SSRN. And don’t forget to check out the Short Circuit podcast (@shortcircuitij.bsky.social)! (end)

A faithful reading would not only clear up a lot of mess in this area (and especially qualified immunity!), but also highlight tort law’s dualism and the unique role of statutory torts: defining, reaffirming, and pursuing specific public goals through private law mechanisms of enforcement. (7/8)

That move rewrote a harm-based tort into a conduct-based one--not only undermining Congress's Reconstruction design, but also clashing with basic tort principles. Strict liability attaches because of the infliction of an unjustifiable harm, not because of defective or unreasonable conduct. (6/8)

The text, legislative debates, and early cases through the 1950s all assumed strict liability. But starting in the mid-20th century, courts grafted fault (states of mind and qualified immunity) onto Section 1983 through constitutional rhetoric and federalism concerns. (5/8)

Why strict liability? Congress wanted to end a state of affairs where individual rights were taken away “by reason of prejudice, passion, neglect, intolerance or otherwise.” State officials couldn’t be trusted, so Congress made them strictly liable, regardless of mental state or good faith. (4/8)

That shift lacks any basis in the 1871 text or history. As enacted, Section 1983 imposed liability whenever a state actor deprives someone of federal rights—regardless of fault or culpability, and without requiring the violation of some standard of conduct or duty. (3/8)

The core claim: Section 1983 was enacted as a strict-liability tort, but courts transformed it into a fault-based provision by shifting the focus from the victim's rights deprivations to the tortfeasor’s duty violations. (2/8)

Short Circuit 403 | Strict Liability for Civil Rights Violations - Institute for Justice In a special episode, IJ’s Anya Bidwell interviews Matteo Godi of USC Law about his new article “Section 1983: A Strict Liability Statutory Tort.” Professor […]

I joined Short Circuit (@shortcircuitij.bsky.social) to discuss my forthcoming article, Section 1983: A Strict Liability Statutory Tort (@califlrev.bsky.social). If you’re into civil rights litigation, qualified immunity, or tort theory, check it out! Here's a thread about the basic argument (1/8)

My torts exam writes itself.

I do want to go back to putting this case in the broader context because I think it's important to understand how we got here. Historically, the whole way that the tort liability regime worked for government misconduct was that this Court and state courts

looked to existing common law causes of action and focused on immunity defenses as the way of calibrating the harm that citizens and others faced when injured by government officers against the need to protect officers acting in good faith, back to Judge Hand in Gregoire versus Biddle. The Court struck this balance by fashioning immunity defenses where the fight would be over whether the officer was entitled to immunity or not. And for law enforcement officers specifically, this Court has long rejected the argument that there should be any context in which law enforcement officers, because of the frequency with which they interact with average individuals, because of the nature of their interactions, because of the powers they have to search, to seize, to arrest in this context, to use lethal force, did not justify absolute immunity and instead justified a more narrower, qualified kind of immunity for those most likely to come face-to-face with private citizens. Distilled to its simplest, the government's position in this case is that

officers in what is self-described as the nation's largest law enforcement agency should have a functional absolute immunity at least where foreign nationals are concerned. And our submission is that that is not consistent with how this Court has always understood the relationship between causes of action and immunity defenses in this context. It is not required by any of this Court's Bivens decisions. It does not abide by this Court's suggestion in Abbasi that there are strong reasons and powerful reasons to retain Bivens in this context. And it would eliminate the one deterrence that is meaningfully available to ensure that officers in the nation's largest law enforcement agency are complying with the law.

It's worth asking how differently things might look on the ground right now if #SCOTUS hadn't eviscerated Bivens—and made it all-but impossible to bring damages suits against federal officers (like ICE agents) who violate our constitutional rights.

This is from my rebuttal in Hernández v. Mesa:

Sincerely wondering: what remedies does Justice Kavanaugh believe are and should be available in federal court these days for excessive force violations by federal immigration officials?