Sunday, January 31, 2010

Letter To Publisher: Read It And Weep

This will be mailed tomorrow. It speaks for itself, and it speaks volumes about the status of litigation arising under 42 U.S.C. Section 1983.

February 1, 2010

Dear Jeff:

Flattered though I am by your offer to let me participate in creation of the new book on model federal complaints, I have decided to pass. Although I have filed scores of suits arising under 42 U.S.C. Section 1983 in my career, I am no longer confident that our federal courts have the will to face these cases with anything but a motive to derail them prior to trial. I rarely encourage lawyers calling me for advice about these cases to file them any longer.

In the past few years, the judiciary has become so hostile to federal civil rights complaints that the volume of actions I have filed is greatly diminished. Just last year, the Supreme Court put another nail in the coffin of 1983 practice by requiring heightened pleading rules. I now routinely waste time responding to boilerplate motions to dismiss. See, Iqbal v. Ashcroft. I rarely file these complaints any longer, and when I do, I am rarely confident my case will make it to the jury: An emboldened judiciary grants qualified immunity with increasing encouragement from the Supreme Court. See, Scott v. Harris.

I was invited a few months back to contribute sample voir dire questions for another book to a another publisher, and never did so. I am frankly not at all confident that these writs are worth filing in all but the most egregious cases of misconduct. Those cases are few and far between. Frankly, I believe the hey day of 1983 litigation has passed.

I am hard pressed to know who to recommend in my stead. Perhaps .... He remains my mentor and what little I know in this area I learned from him.

I am returning the material you were kind enough to send to me. Thanks for thinking of me.