“There were important developments as well on the issue of access to the courts. The Civil Rights Attorney’s Fees Awards Act of 1976 provided indispensable support for civil rights litigation and, with the expansion of legal services, defender, public interest and advocacy organizations, individuals had far broader access to the courts. Moreover, as defender and legal services lawyers migrated to the private sector, some brought with them the tools and motivation to litigate civil rights cases. Government agencies could also seek to protect rights by enforcement actions, internal disciplinary proceedings and, in serious cases, by prosecution of offending officials under criminal civil rights statutes. In too many instances, however, these measures were more theoretical than real. The Court also expanded appellate and habeas corpus rights of defendants to provide multilayered review and relief from unconstitutional convictions and illegal enforcement practices, and adopted remedies for violations of a variety of constitutional rights in the criminal prosecution context. These developments led to a significant surge in civil rights litigation. However, as the numbers of cases and expertise of lawyers increased, the Court (and later, Congress) reacted by limiting access to the courts and abridging remedies in a number of critical areas. Civil rights litigation appeared to be robust, but beneath the surface a strong crosscurrent of retrenchment was developing. Today, in many cases there is either no available remedy or partial remedies that are so encumbered by procedural barriers as to amount to no actual remedy. Even more disquieting is the fact that in an increasing number of cases the availability of remedies is now tied to standards of proof that are extra-constitutional in nature. Monroe rejected the argument that § 1983 requires a showing of intentional misconduct,but immunity and municipal liability doctrines have been formulated to create a heightened mens rea for constitutional claims.”

Source: David Rudovsky. Running In Place: The Paradox of Expanding Rights and Restricted Remedies. University of Illinois Law Review 5: 1199, 1210-1211. 2005.


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