Robertson v Wegmann Brief of Amicus Curiae
Public Court Documents
January 1, 1978
53 pages
Cite this item
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Brief Collection, LDF Court Filings. Robertson v Wegmann Brief of Amicus Curiae, 1978. 84abfda4-c29a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/14a8dbd9-b27e-48cd-b424-c07f5d6c28ab/robertson-v-wegmann-brief-of-amicus-curiae. Accessed October 10, 2025.
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In T he
Bupmu? (tart nt tin' lutteft §1atrn
October Term , 1977
No. 77-178
W illard E. R obertson,
Petitioner, v. ’
E dward F. W egm ann , Executor for Clay L. Shaw, et al.
On Writ o f Certiorari to the United States
Court of Appeals for the Fifth Circuit
MOTION FOR LEAVE TO FILE
AND
BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW AS AMICUS CURIAE
Charles A . Ban e
T h o m as D. Barr
Co-Chairmen
R obert A. M u rph y
R ichard S. K o h n
W illiam E . Caldw ell
N orm an J. Ch a c h k in
Staff Attorneys
La w ye rs ’ Co m m ittee for
Civil R ights U nder L a w
733 - 15th Street, N W .
Suite 520
Washington, D.C. 20005
Attorneys for Amicus Curiae
W ilson - Epes Printing Co.. Inc. - Re 7-6002 - Washington, d . C. 20001
In T he
l&upmt? (ta rt m % United States
October Term , 1977
No. 77-178
W illard E. Robertson,
Petitioner, v. ’
E dward F. W egm ann , Executor for Clay L. Shaw, et al.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
The Lawyers’ Committee for Civil Rights Under Law,
proposed amicus curiae herein, respectfully seeks leave
of this Court to file the attached brief in order to assist
the Court in resolving an important issue of survival of
actions brought under federal civil rights statutes. In
the attached brief, amicus discusses the varied authority
of federal courts to look beyond state law provisions in
order to achieve the ends of federal policy in suits to
enforce federal rights, in cases involving both civil rights
and other subject matter. The instant case presents the
sort of issue which arises frequently in civil rights litiga
tion, including particularly actions for damages suffered
by reason of police or other official misconduct, and this
Court’s ruling on the survival question presented here
will have an important bearing on the disposition of such
actions. Amicus does not believe that the generic nature
of the questions presented in this case will be adequately
addressed by the parties, because in the papers filed with
the Court to date, they have discussed only the narrow
problem created by Clay Shaw’s death, and because
neither party is represented by counsel who frequently
litigate civil rights actions, to the best of amicus’
knowledge.
The interest of amicus in this case grows out of its
longstanding concern with the problem of devising reme
dies that will secure the effective enforcement of federal
civil rights laws, and is more fully described infra pp. 1-3.
Amicus has sought consent of the parties to the filing
of this brief, without success.
WHEREFORE, the Lawyers’ Committee for Civil
Rights Under Law respectfully moves that its brief be
filed in this case.
Respectfully submitted,
Charles A . Ban e
T h om as D. Barr
Co-Chairmen
Robert A. M u rph y
R ichard S. K oh n
W illiam E. Caldw ell
N orm an J. C h a c h k in
Staff Attorneys
L aw ye rs ’ Com m ittee for
Civil R ights U nder L a w
733 - 15th Street, N.W.
Suite 520
Washington, D.C. 20005
Attorneys for Amicus Curiae
INDEX
Page
Table of Authorities _____________ __ _________ _______ iii
Interest of Amicus Curiae............ ............................ —~ 1
Statement .... ...................... ................—.................... ......... 4
Summary of Argument........ ............................................ 5
ARGUMENT—
Introduction _____ ______ ______ ___________________ 6
I. Federal Courts Are Not Round To Apply Only
State Law To The Innumerable Procedural And
Remedial Questions Which Arise In The Course
Of Litigation But Which Are Not Specifically
Addressed By Federal Statute________________ 8
A. In civil rights actions, 42 U.S.C. § 1988 is an
explicit Congressional authorization to em
ploy that combination of federal and state
statutory and “ common law” which best
serves to fulfill the remedial and deterrent
purposes of federal civil rights statutes____ 8
B. The same flexibility characterizes the practice
of the courts in all federal question litigation
with respect to application of state law; this
flexibility is entirely consistent with the Rules
of Decision Act and inheres in the constitu
tional grant of jurisdiction___ _____________ 17
II. In This Case Louisiana’s Limited Survival Of
Actions Statute Was Properly Not Applied Be
cause To Do So Would Conflict With The Re
medial And Deterrent Purposes Of The Federal
Civil Rights A cts________ ____________________ 23
A. Factors bearing upon the choice of la w _____ 24
INDEX— Continued
Page
B. The remedial-deterrent purposes of the Civil
Rights A cts__________ ___—----------------------- 29
C. Abatement of this action by reason of Clay
Shaw’s untimely death would be inconsistent
with Congress’ purpose in creating the § 1983
cause of action ___________________________- 34
Conclusion __________________________________________ 41
ii
I l l
TABLE OF AUTHORITIES
Cases Page
Adickes v. S. H. Kress <& Co., 398 U.S. 144 (1970).. 30
Albemarle Paper Co. V. Moody, 422 U.S. 405
(1975) _____________________________________8n, 30-31
Alyeska Pipeline Serv. Co. V. Wilderness Soc’y, 421
U.S. 240 (1975)______ 24n
Ambrose V. Wheatley, 321 F. Supp. 1220 (D. Del.
1971) ....... „ ______ ________________________ __ - 16
Atkins V. Schmutz Mfg. Co., 435 F. 2d 527 (4th
Cir. 1970), cert, denied, 402 U.S. 932 (1 9 71 )-. 20n
Baker V. F&F Inv., 420 F. 2d 1191 (7th C ir.), cert.
denied, 400 U.S. 821 (1970)________ 12n
Bank of America V. Parnell, 352 U.S. 29 (1956)—. 26
Barry v. Edmunds, 116 U.S. 550 (1886) ------ -------- 32
Basista V. Weir, 340 F. 2d 71 (3d Cir. 1965)_____ 16
Bivens V. Six Unknown Named Agents, 403 U.S.
338 (1971)........... .......... ............... .....- ............... ... 19
Board of County Comm’rs V. United States, 308
U.S. 343 (1939)____ 26
Brazier v. Cherry, 293 F. 2d 401 (5th Cir. 1961) — 14, 35n
Brown V. City of Meridian, 356 F. 2d 602 (5th
Cir. 1966) ______________ 9n
Burnett V. New York Cent. R.R. Co., 380 U.S. 424
(1965) ________________________ _______ —........ 29n
Charles Dotvd Box Co. V. Courtney, 368 U.S. 502
(1961) ______________________ 27n
Chevron Oil Co. V. Huson, 404 U.S. 97 (1971)____ 24
Clearfield Trust Co. v. United States, 318 U.S. 363
(1943) ________________ l9.21n,25-26
Complaint of Cambria S.S. Co., 505 F. 2d 517 (6th
Cir. 1974), cert, denied, 420 U.S. 975 (1975)— 39
Cope V. Anderson, 331 U.S. 460 (1947)--------------- 28
Damico V. California, 389 U.S. 416 (1967)------------ 29-30
Davis V. Johnson, 138 F. Supp. 572 (N.D. 111.
1955) _________ _____________ - _______________ 16,36
Dean V. Shirer, 547 F. 2d 227 (4th Cir. 1976)____ 15,16n
District of Columbia V. Carter, 409 U.S. 418
(1973) ....... ....... ................ - __ -.................... .......... 31n
IV
D’Oench Duhme & Co. V. FDIC, 315 U.S. 447
(1942) _ ............................................................... .... 26
Evain V. Conlisk, 364 F. Supp. 1188 (N.D. 111.
1973), ail’d without opinion, 498 F. 2d 1403 (7th
Cir. 1974) ........ 15n
Ex parte Virginia, 100 U.S. 339 (1880) --------- ----- 31n
Farmers Educ. Coop. Union V. WDAY, 360 U.S.
525 (1959) ................ 19
Francis V. Southern Pac. Co., 333 U.S. 445 (1948).. 27
Gore V. Turner, 563 F. 2d 159 (5th Cir. 1977)____ 29, 33n
Griffin v. Breckenridge, 403 U.S. 88 (1971)----- ----- 9
Hall V. Wooten, 506 F. 2d 564 (6th Cir. 1974)____ 15
Hodge V. Seiler, 558 F. 2d 284 (5th Cir. 1977)____ 28
Holmberg V. Armbrecht, 327 U.S. 392 (1946)------- 27
Holmes V. Silver Cross Hosp. of Joliet, 340 F. Supp.
125 (N.D. 111. 1972)............................................. 15n
Hughes V. Washington, 389 U.S. 290 (1967)-------- 24n
Hutto V. Finney, No. 76-1660 (pending)---- ---------- 2n
Illinois V. City of Milwaukee, 406 U.S. 91 (1972)—. 19
IngramW. Steven Robert Corp., 547 F. 2d 1260 (5th
Cir. 1977) ________________ ___ ___________ ____ 15n, 28
International Union V. Hoosier Cardinal Corp., 383
U.S. 696 (1966)_____________ -__ _________22n, 27n, 28
Jackson County V. United States, 308 U.S. 343
(1939) .........................................................-.......... 19
J.I. Case Co. V. Borak, 377 U.S. 426 (1964) ______ 19, 28n
Johnson V. Greer, 477 F. 2d 101 (5th Cir. 1973)....... 16
Jones V. Alfred H. Mayer Co., 392 U.S. 409 (1968) _. 8n
Jones V. Hildebrant, 432 U.S. 183 (1977)______2n, 3 ,15n,
30n,36
Lee V. Southern Home Sites Corp., 429 F. 2d 290
(5th Cir. 1970)------------------- ----- ---------------------- 16
Lefton V. City of Hattiesburg, 333 F. 2d 380 (5th
Cir. 1964).................................................................. . 9n
Local 17U V. Lucas Flour Co., 369 U.S. 95 (1962) ....19, 27n
Luker V. Nelson, 341 F. Supp. 113 (N.D. 111. 1972).. 19-20
Lynch V. Household Fin. Corp., 405 U.S. 538
' (1972) ........................... .......... ...................... -......... 23
TABLE OF AUTHORITIES— Continued
Page
V
Marbury V. Madison, 5 U.S. (1 Cr.) 137 (1803) „18n, 30n
McAllister V. Magnolia Petroleum Co., 357 U.S.
221 (1958).... ...................................-..............—19, 26n, 28
McNeese V. Board of Educ., 373 U.S. 668 (1963).... 30
Miller V. Smith, 431 F. Supp. 821 (N.D. Tex.
1977) ...................... ................. .................................29, 35n
Mitchum V. Foster, 408 U.S. 225 (1972).7n, 8n, 23, 30, 31n
Mizell V. North Broward Hosp. Dist., 427 F. 2d
468 (5th Cir. 1970)________ _____ _____________ 35n
Monell V. Department of Social Services, No. 75-
1914 (pending)..................... ...................... -........ —- 2n
Monroe V. Pape, 365 U.S. 167 (1961) ____ ____ 16n, 23, 30
Moor V. County of Alameda, 411 U.S. 693 (1973).- 8
Moragne V. States Marine Lines, 398 U.S. 375
(1970) ________ ____________ __________________ 3, 39
National Metropolitan Bank V. United States, 323
U.S. 454 (1945) .............. ......................................... 19
Neuman V. Piggie Park Enterprises, 390 U.S. 400
(1968) ..................................................................— 8n
Northcross V. Board of Educ., 412 U.S. 427 (1973).. 8n
Pfizer, Inc. V. Government of India, 46 U.S.L.W.
4073 (January 11, 1978) ---- ---------------------- 33
Pierson V. Ray, 386 U.S. 547 (1967) _____________ 15n
Pollard V. United States, 384 F. Supp. 304 (M.D.
Ala. 1974)..................... .....................................— -28, 35n
Preiser V. Rodriguez, 411 U.S. 475 (1973) ----------- 29
Pritchard V. Smith, 289 F. 2d 153 (8th Cir. 1961)- 14-15,
35n
Reconstruction Fin. Corp. V. Beaver County, 328
U.S. 204 (1946) ......_ _______________________ 26
Rizzo V. Goode, 423 U.S. 362 (1976) _____________ 2n
Robinson V. Campbell, 16 U.S. (3 Wheat.) 212
(1818) — ..................-_______ _______________18, 19, 27n
Rodriguez V. Taylor, No. 76-2609 (3d Cir., Decem
ber 27, 1977)................................ -.........-................. 34n
Runyon V. McCrary, 427 U.S. 160 (1976) ------------- lOn
Samuels V. Mackell, 401 U.S. 66 (1971)--------------- 4n, 38
Sanders V. Russell, 401 F. 2d 241 (5th Cir. 1968).. 9n
TABLE OF AUTHORITIES— Continued
Page
VI
Sea-Land Services V. Gaudet, 414 U.S. 573 (1974)._ 39
Shaw V. Garrison, 391 F. Supp. 1353 (E.D. La.
1975), aff’d 545 F. 2d 980 (5th Cir. 1977), cert,
granted, 46 U.S.L.W. 3373 (December 5, 1977).. 5
Shaw V. Garrison, 328 F. Supp. 390 (E.D. La.
1971), aff’d 467 F. 2d 113 (5th Cir.), cert, de
nied, 409 U.S. 1024 (1972)................... ................. . 4
Shaw V. Garrison, 293 F. Supp. 937 (E.D. La.),
aff’d 393 U.S. 220 (1968 )_____________ _______ 4, 38
Sola Elec. Co. V. Jefferson Elec. Co., 317 U.S. 173
(1942) ____ _______ _____ _____________________ 19,27
Spence V. Staras, 507 F. 2d 554 (7th Cir. 1974)....... 15
Steffel V. Thompson, 415 U.S. 452 (1974)------------- 23
Sullivan V. Little Hunting Park, 396 U.S. 229
(1969) _____________ __ - ......7, 8n, 10,12,16, 28, 30, 35
Textile Workers Union V. Lincoln Mills, 363 U.S.
448 (1957) ................... ....................... - ...... ...19, 25n, 27n
Tunstall V. Brotherhood of Locomotive Firemen &
Enginemen, 323 U.S. 210 (1944)____ ___ ______ 19
United States V. Carson, 372 F. 2d 429 (6th Cir.
1967) _____ ____ - ................................ ......- ........ 20
United States ex rel. Washington V. Chester County
Police Dep’t, 300 F. Supp. 1279 (E.D. Pa. 1969).. 16-17
United States V. Little Lake Misere Land Co., 412
U.S. 580 (1973) ____ ______________ 20, 21, 22, 2 In, 25n
United States V. May ton, 335 F. 2d 153 (5th Cir.
1964) ____ ______ _____________________________ 9n
United States V. 93.970 Acres of Land, 360 U.S.
328 (1959) ________________ __________ ______- 25n
United States V. Price, 383 U.S. 787 (1966) ______ 9
United States V. Standard Oil Co., 332 U.S. 301
(1947) ________ _____ -___ ___ ________________ 24n, 25
United States V. Yazell, 382 U.S. 341 (1966) ..........20, 25n
Wallis V. Pan American Petroleum Corp., 384
U.S. 63 (1966) ___________ ___________________ 27
Worth V. Seldin, 422 U.S. 490 (1975) _________ 2n
Young V. ITT, 438 F. 2d 757 (3d Cir. 1971)_______ 16
Younger V. Harris, 401 U.S. 37 (1971) .................. . 4, 38
TABLE OF AUTHORITIES— Continued
Page
Constitution and Statutes Page
U.S. Const., art. Ill, § 2, cl. 1 ________ ______________ 17
18U.S.C. §242 __________ lOn
28 U.S.C. § 1652 ____________ ...____ ______________ 18n
28 U.S.C. § 2283_____ _____ _____________________ 8n, 30
29 U.S.C. § 185__________________________________ 27n
42 U.S.C. § 1981..................................... ______________ lOn, 17
42 U.S.C. §§ 1981-1986_____________ _____________ 7
42 U.S.C. § 1982 _______ _________________ 8n, lOn, 28, 29
42 U.S.C. § 1983____________ ___ __ _______ _____ passim
42 U.S.C. § 1986 __________ ___ ____________________ 35
42 U.S.C. § 1988........ ................... ................................passim
Rev. Stat. § 722 lOn
Act of May 8,1792, 1 Stat. 275 _____ ________ __ _____ 18n
Bankhead-Jones Farm Tenant Act ______________ 20
Civil Rights Act of 1964___________________________ 8n
Civil Rights Act of 1866,14 Stat. 2 7 __ _________ 9,10,12
Civil Rights Attorney’s Fee Awards Act of 1976,
P.L. 94-559 (October 19, 1976), 90 Stat. 2641_„„. 9n
Clayton A c t_____________________________ 33
Death on the High Seas Act _________ _______ _____ 39
Emergency School Aid Act of 1972 ______________ 8n
Enforcement Act of May 31, 1870, 16 Stat. 140___ lOn
Federal Employers Liability A c t________________ 39
Judiciary Act of 1789__ ________ __ _____________ 6,18
Ku Klux Act of 1871 _____ ____________________6, 23, 29
Longshoremen’s and Harbor Workers’ Compensa
tion Act ___ 39
Rules of Decision A c t ........ .......... .................6,18, 19, 20, 24
Taft-Hartley A c t ....... ....... ......___................. ............... 27n
Rules
Sup. Ct. Rule, August, 1792, 2 U.S. (2 Dali.) 411-
14 ____________________________ ___—~___ _____ 18n
Cong. Globe, 39th Cong., 1st Sess. (1866) ...10-11,13,14
W. Blackstone, Commentaries________________ 18n
V ll
TABLE OF AUTHORITIES— Continued
V ll l
TABLE OF AUTHORITIES— Continued
Other' Authorities Page
Monaghan, The Supreme Court, 1974 Term— Fore
word: Constitutional Common Law, 89 Harv.
L. R ev. 1 (1975) ........... ..... .......-......._...................- 19
Niles, Civil Actions for Damages Under the Fed
eral Civil Rights Statutes, 45 T ex . L. R ev. 1015
(1967) .................................................... -................. 31n
Redish & Phillips, Erie and the Rules of Decision
Act: In Search of the Appropriate Dilemma, 91
H arv. L. R ev . 356 (1977)........................................ 20n
In T he
li’Kj.imtu* (Emnl itf tip? lint!?!* BluVes
October Term , 1977
No. 77-178
W illard E. Robertson,
Petitioner,v.
E dward F. W egm ann , Executor for Clay L. Shaw, et al.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW AS AMICUS CURIAE
INTEREST OF AMICUS CURIAE
The Lawyers’ Committee for Civil Rights Under Law
was organized in 1963 at the request of the President of
the United States to involve private attorneys through
out the country in the national effort to assure civil
rights to all Americans. The Committee’s membership
today includes two former Attorneys General, ten past
Presidents of the American Bar Association, two former
Solicitors General, a number of law school deans, and
many of the nation’s leading lawyers. Through its na
tional office in Washington, D.C., and its offices in Jack-
son, Mississippi, and eight other cities, the Lawyers’ Com
mittee over the past fourteen years has enlisted the serv
ices of over a thousand members of the private bar in
addressing the legal problems of minorities and the poor
in voting, education, employment, housing, municipal serv
ices, the administration of justice, and law enforcement.
2
The Lawyers’ Committee has been actively involved in
a wide variety of litigation on behalf of minority-race
persons seeking redress for unconstitutional conduct com
mitted under color of state law; the vast preponderance
of this litigation has been brought in federal courts pur
suant to the provisions of 42 U.S.C. § 1983.1 The Com
mittee’s experience is that broad principles of relief are
essential to the fulfillment of that statute’s goals: prin
cipally, the compensation of the victims of unconstitu
tional action and the deterrence of like misconduct in the
future.
Because the federal Civil Rights Acts do not furnish
standards for the disposition of every matter arising in
the course of the litigation which they authorize, his
torically the federal courts have engaged in interstitial
lawmaking through incorporation of state law or creation
of federal common law. This practice is given explicit
statutory sanction by 42 U.S.C. § 1988.
The flexibility which § 1988 affords federal trial courts
to shape their procedures and remedies in accord with the
underlying policy of the Civil Rights Acts is indispensable
to effective redress for constitutional wrongs. Amicus is
therefore concerned by the Petitioner’s suggestions that
§ 1988 should be given a cramped interpretation, restrict
ing federal courts to state law alone on matters of pro
cedure and remedy arising in civil rights suits.
Of particular importance to amicus is the availability
of an effective federal remedy for police misconduct and
brutality. This interest led the Lawyers’ Committee
(along with other amici) last Term to file a brief in
;l The Committee has also filed amicus briefs with this Court in
a number of § 1983 cases, including Huttto V. Finney, No. 76-1660
(pending); Monell v. Department of Social Services, No. 75-1914
(pending) ; Jones V. Hildebrant, 432 U.S. 183 (1977) ; Rizzo v.
Goode, 423 U.S. 362 (1976) ; and Worth v. Seldin, 422 U.S. 490
(1975).
3
Jones v. Hildebrant, 432 U.S. 183 (1977). There, the
mother of a youth shot and killed by a Denver policeman
sought to recover damages for his death in a state court
action based, alternatively, upon 42 U.S.C. § 1983. The
Colorado Supreme Court held that the state’s “ wrongful
death” statute would be “borrowed” in a suit on the fed
eral claim, but that as a result, any damage recovery
would be limited by Colorado’s “net pecuniary loss” rule
applied in state wrongful death suits. We argued that
the state’s limitation on damages was ill-suited to afford
complete justice as § 1983 required, and therefore it should
not be incorporated in any “borrowing” of the state’s
wrongful death statute under 42 U.S.C. § 1988. Alter
natively, we urged this Court to sustain a federal com
mon law of wrongful death in civil rights actions as it
had done in admiralty, in Moragne v. States Marine
Lines, 398 U.S. 375 (1970).2
The instant case involves a state “ survival” statute,
which can also play a major role in lawsuits to recover
damages for police misconduct which maims or causes
death. Acceptance of the argument which Petitioner ad
vances would have consequences extending far beyond the
facts of this case, which we discuss below. We file in this
matter, therefore, to emphasize the critical importance
of sustaining the federal courts’ authority to reject state
law, when to apply it would undermine substantial fed
eral concerns—whatever the merits of any particular
exercise of that authority. We are also satisfied that the
rejection of Louisiana’s survival statute in this case was
proper.
12 After oral argument, this Court dismissed the writ of certiorari
as improvidently granted, as it had become clear that the Petitioner
in Jones was not seeking damages for the injury to and killing of
her son, but rather damages for deprivation of her claimed parental
interest in the life o f her son. 432 U.S. at 189.
4
STATEMENT
The facts relevant to the issues presented to this Court
are few, and are not in any dispute. In March of 1967,
the original plaintiff in this action Clay Shaw was in
dicted by an Orleans Parish, Louisiana grand jury on
a charge of conspiracy to murder President John F. Ken
nedy. The indictment followed Shaw’s arrest and the
public announcement of the charge by then Parish Dis
trict Attorney Jim Garrison, one of the defendants in
this action, and a preliminary hearing in state court.
Shaw v. Garrison, 293 F.Supp. 937, 939 (E.D. La.),
aff’d 393 U.S. 220 (1968); id., 328 F. Supp. 390, 394
(E.D. La. 1971). In 1968 Shaw sued Garrison before a
three-judge federal district court, seeking declaratory and
injunctive relief to restrain his further prosecution on
the conspiracy charge. The Court granted Garrison’s
motion for summary judgment, holding that no grounds
for federal court interference with the pending state
prosecution had been alleged. Shaw v. Garrison, 293 F.
Supp. 937 (E.D. La.), aff’d 393 U.S. 220 (1968).3
On March 1, 1969, a state court jury unanimously
found Shaw not guilty of the conspiracy charge. Shaw
v. Garrison, supra, 328 F. Supp. at 399. The following
day, Garrison filed an information charging Shaw with
perjury. Id. at 399-400. Before that charge could be
tried, in 1971 Shaw sought and obtained a federal court
injunction against his further prosecution, based on an
explicit finding of bad faith by Garrison sufficient to bring
the case within the exceptional circumstances rule of
Younger v. Harris, 401 U.S. 37 (1971). Shaw v. Garri
son, 328 F. Supp. 390 (E.D. La. 1971), aff’d 467 F.2d
113 (5th Cir.), cert, denied, 409 U.S. 1024 (1972).
3 The district court’s opinion declining- to entertain the 1968 action
correctly anticipated much of this Court’s reasoning in Younger v.
Harris, 401 U.S. 37 (1971) and Samuels V. Mackell, 401 U.S. 66
(1971).
5
In the meantime, Shaw had in February 1970 filed this
civil rights damages action against Garrison and other
co-defendants (including Petitioner Robertson) with
whom Garrison was alleged to have conspired to harass
Shaw and deprive him of his constitutional rights. Shaw
v. Garrison, 391 F. Supp. 1353, 1355 (E.D. La. 1975),
aff’d 545 F.2d 980 (5th Cir. 1977), cert, granted, 46
U.S.L.W. 3373 (December 5, 1977). Before the action
was tried, Shaw died on August 15, 1974, “ survived by
neither spouse, children, parents, nor siblings.” Id., 391
F. Supp. at 1356. Several of the defendants, including
Petitioner, thereupon moved to dismiss the action on the
ground that under Louisiana law it abated with Shaw’s
death. Shaw’s executor sought to be substituted as plain
tiff.4 After receiving briefs, the trial court agreed that
the action would abate under Louisiana law, but held that
42 U.S.C. § 1988 authorized “ the creation of a federal
common law of survival in civil rights actions in favor
of the personal representative of the deceased” in order
to give effect to “ the policies underlying the civil rights
laws and [this] Court’s treatment of survival of actions
in analogous contexts.” Id., 391 F. Supp. at 1368. The
Fifth Circuit agreed, and its judgment affirming the trial
court’s denial of the motions to dismiss is the subject of
this Court’s present review.
SUMMARY OF ARGUMENT
I
A. Where necessary to give effect to the congressional
purpose underlying the Reconstruction Civil Rights Acts,
42 U.S.C. § 1988 authorizes federal courts in civil rights
actions to look beyond the provisions of state laws gov
erning matters of remedy and procedure. The plain
4 Shaw left a valid will naming a friend as residuary legatee of
his estate. Petition for Certiorari, at 4.
6
language of the statute, the debates of the 39th Con
gress which enacted it, and the very justification for
affording a federal remedy for deprivations of constitu
tional rights, all support this power for the federal courts.
B. Even in circumstances where state law is generally
held to govern, this Court has consistently interpreted the
Rules of Decision Act (Section 34 of the first Judiciary
Act) and Section 1988 to allow the federal courts to look
beyond state law provisions when their application would
produce results inconsistent with the purposes of fed
eral law.
II
The lower court’s exercise of the authority in this
case is fully proper. Under either § 1988 or the inherent
choice-of-laws responsibility of federal courts, there is no
per se incorporation of state law. Rather, its applica
bility depends upon its appropriateness to give effect to
the underlying federal policies. Here, the deliberate ac
tion of the Reconstruction Congresses creating a federal
court cause of action in order to deter deprivations of
constitutional rights by those acting under color of state
law requires that Louisiana’s limitation on survival of
state-created claims be displaced.
ARGUMENT
Introduction
This case presents a relatively narrow issue: whether
the courts below correctly exercised their authority under
42 U.S.C. § 1988 by holding, as a matter of interstitial
federal common law, that this damage action under the
Ku Klux Act of 18715 survived after the plaintiff’s
15 The relevant portion of the Act is now codified at 42 U.S.C.
§ 1983.
7
death, in favor of his residuary legatee or executor. How
ever, the arguments made in Petitioner’s brief implicate
broader questions of federal judicial power under the
Reconstruction era civil rights statutes.10 It would be
inappropriate to consider these questions solely in the
factual context presented by the matter before the Court;
yet Petitioner’s analysis neither reserves nor fully treats
them. In the discussion which follows, we accordingly
show first, that federal courts are authorized, in civil
rights cases brought pursuant to 42 U.S.C. §§ 1981-86, to
look beyond the law of the state in which the trial
court sits to discover applicable rules of law governing-
procedural and remedial questions not explicitly ad
dressed by these Reconstruction era statutes; and second,
that such authority was correctly exercised in the case
and on the issue presently before the Court. Even if
the Court were to disagree with our second point, there
fore, it should not announce any general limitation on the
power of federal trial judges to effectuate federal policy,
in appropriate cases, by selecting non-state procedural
or remedial legal doctrines which best fulfill the federal
purpose which gives rise to the cause of action. Cf.
Sullivan V. Little Hunting Park, 396 U.S. 229 (1969).
10 These questions recur frequently in federal civil rights litigation
but generally have not troubled the lower federal courts. Yet they
are central to the effectiveness o f the federal remedy for constitu
tional deprivations which is established by the Reconstruction era
civil rights statutes. See generally Mitchum v. Foster, 408 U.S. 225
(1972).
8
I
Federal Courts Are Not Bound To Apply Only State
Law To The Innumerable Procedural And Remedial
Questions Which Arise In The Course Of Litigation
But Which Are Not Specifically Addressed By Federal
Statute.
A. In civil rights actions, 42 U.S.C. § 1988 is an explicit
congressional authorization to employ that combina
tion o f federal and state statutory and “common law”
which best serves to fulfill the remedial and deter
rent purposes o f federal civil rights statutes.
As this Court has noted, federal civil rights statutes—
particularly those dating from the Reconstruction era—
lack all of the specific provisions necessary to delimit
precisely the contours of the remedial causes of action
which they have been held to create.
[I]nevitably existing federal law will not cover every
issue that may arise in the context of a federal civil
rights action.
Moor v. County of Alameda, 411 U.S. 693, 702 (1973).7
As a result, in such suits the courts themselves must
7 See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414 n.14 (1968)
(noting silence of 42 U.S.C. § 1982 with respect to recovery of dam
ages) ; Sullivan V. Little Hunting Park, 396 U.S. 229, 238-40 (1969)
(creating damage remedy under § 1982 to provide “an effective
equitable remedy” ) ; Mitchum v. Foster, 407 U.S. 225 (1972) (hold
ing that 42 U.S.C. § 1983 is “ expressly authorized” exception to> 28
U.S.C. § 2283 despite absence o f specific statutory language on
point) ; cf. Albemarle Paper Co. V. Moody, 422 U.S. 405, 413-21
(1975) (holding that plaintiffs in cases under Title VII of the 1964
Civil Rights Act who prove employment discrimination should or
dinarily receive back pay, although statute merely authorizes such
remedy) ; Northcross V. Board of Educ., 412 U.S. 427 (1973) (suc
cessful plaintiff in action to desegregate schools should “ ordinarily”
recover attorneys’ fees under provision of Emergency School Aid
Act of 1972 authorizing award in discretion of cou rt); Newman v.
Piggie Park Enterprises, 390 U.S. 400 (1968) (same; Title II of
Civil Rights Act of 1964).
9
provide answers to various procedural and remedial ques
tions as they arise. In so doing, the courts are guided
by the national policy expressed in the federal civil rights
laws, which are to be “ accord [ed] a sweep as broad as
[their] language.” Griffin v. Breckenridge, 403 U.S. 88,
97 (1971), quoting from United States v. Price, 383 U.S.
787, 801 (1966). Federal courts are quick to adjust
their procedures to the task.8
42 U.S.C. § 1988 (originally Section 3 of the Civil
Rights Act of 1866, 14 Stat. 27) requires no less.0 It
instructs that in civil rights matters, whenever federal
statutes are “ deficient in the provisions necessary to fur
nish suitable remedies,” the courts shall apply the “ com
mon law” as modified by statutes of the forum state if it
is not “ inconsistent with the Constitution and laws of the * 9
« E.g., Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) (admis
sion of out-of-state attorneys) ; Brown v. City of Meridian, 856
F.2d 602 (5th Cir. 1966) (acceptance of joint removal petitions) ;
Lefton V. City of Hattiesburg, 333 F.2d 380 (5th Cir. 1964) (same) ;
United States v. Mayton, 335 F.2d 153 (5th Cir. 1964) (registration
o f voters).
9 42 U.S.C. § 1988 provided as follows prior to its 1976 amendment
by the Civil Rights Attorney’s Fees Awards Act, P.L. 94-559 (Oc
tober 19, 1976), 90 Stat. 2641, in respects not here relevant:
The jurisdiction in civil and criminal matters conferred on the
district courts by the provisions o f this chapter and Title 18,
for the protection of all persons in the United States in their
civil rights, and for their vindication, shall be exercised and
enforced in conformity with the laws of the United States, so
far as such laws are suitable to carry the same into effect; but
in all cases where they are not adapted to the object, or are
deficient in the provisions necessary to furnish suitable reme
dies and punish offenses against law, the common law, as modi
fied and changed by the constitution and statutes of the State
wherein the court having jurisdiction of such civil or criminal
cause is held, so far as the same is not inconsistent with the
Constitution and laws of the United States, shall be extended to
and govern the said courts in the trial and disposition of the
cause, and, if it is of a criminal nature, in the infliction of
punishment on the party found guilty.
10
United States.” § 1988 has been construed by this Court
to permit resort to either federal or state rules on dam
ages, “whichever better serves the policies expressed in
the federal statutes,” Sullivan v. Little Hunting Park,
supra, 396 U.S. at 240. Thus, the plain language of the
statute and its construction by this Court support the
power questioned in this case, to look beyond Louisiana
law on survival of actions so as to fulfill the purposes
of the civil rights acts.10
There is nothing startling about this proposition when
§ 3 of the 1866 A ct11 is considered in the context of the
practices of many state courts at the time of its passage.
The debates in the 39th Congress contain repeated ref
erences—by both supporters and opponents of the bill—
to state statutes limiting or abrogating the testimonial
capacity of Black witnesses, or denying Blacks the right
to bring suit. See Cong. Globe, 39th Cong., 1st Sess.
478-79, 602, 1121-22, 1151-52, 1156-57, 1159, 1260, 1265,
1270, 1293, 1759, 1777, 1783, 1809, 1832-33, Appendix
10 Petitioner apparently concedes the point; the only distinction of
Sullivan urged in his brief is that in Sullivan there was an extant
“ federal rule” to choose, while Petitioner contends there was no
“ federal rule” applicable to this case until one was created by the
courts below. Pet. Br. at 18-19.
11 § 1 of the 1866 Act, declaring the rights of citizens, is now
codified at 42 U.S.C. §§ 1981, 1982. § 2 of the Act made it a crim
inal offense to deprive persons of those rights under color of state
law, and is currently codified at 18 U.S.C. § 242. § 3 of the Act, in
its original version, provided for federal jurisdiction “ exclusively
of the courts of the several states” as to criminal cases brought
pursuant to § 2, and also provided for removal of cases from state
to federal court in specified circumstances; it then contained the
language now codified at 42 U.S.C. § 1988 and quoted in note 9
supra..
The entire 1866 Act was re-enacted, following passage of the
Fourteenth Amendment, by § 18 of the Enforcement Act of May 31,
1870, 16 Stat. 140. In 1874 the revisers (see generally Runyon v.
McCrary, 427 U.S. 160, 168 n.8 (1976)) made § 1988 applicable to
all civil rights legislation. Rev. Stat. § 722.
11
pp. 157-58, 182 (1866). This Act was clearly understood
to invalidate such laws and to authorize criminal prose
cution of state judges and other officials who sought to
enforce them:
I will not therefore attempt a full discussion of [the
Act] now, but content myself with briefly presenting
some of the grounds upon which I will again perform
the proudest act of my political life in voting to make
this bill the law of the land.
It is scarcely less to the people of this country than
Magna Charta was to the people of England.
It declares who are citizens.
It does not affect any political right, as that of suf
frage, the right to sit on juries, hold office, &c. This
it leaves to the States, to be determined by each for
itself. It does not confer any civil right, but so far
as there is any power in the States to limit, enlarge,
or declare civil rights, all these are left to the States.
But it does provide that as to certain enumerated
civil rights every citizen “shall have the same right
in every State and Territory.” That is whatever of
certain civil rights may be enjoyed by any shall be
shared by all citizens in each State, and in the Terri
tories, and these are:
1. To make and enforce contracts.
2. To sue, to be sued, and to be parties.
3. To give evidence.
4. To inherit, purchase, lease, sell, hold, and convey
real and personal property.
5. To be entitled to full and equal benefit of all laws
and proceedings for the security of person and prop
erty.
Id. at 1832 (Rep. Lawrence).
12
In these circumstances, it would be little short of as
tounding if Congress were to have intended by § 3 of the
Act to require that the federal courts adopt, and be
bound by, the very discriminatory state practices which
the legislation was intended to invalidate. Rather, the
conditional phrase, “so far as the same is not inconsistent
with the Constitution and laws of the United States,” was
designed to guard against this result. The language was
purposefully inserted into § 3 of the Act to authorize the
creation of such federal law as might be necessary to
carry out the broad purposes of the statute, as this
Court recognized in Sullivan.1*
Petitioner apparently would reduce this language, and
Congress’ understanding of it, to a nullity, for his brief
says:
The referral to and adoption of state law under the
second part of Section 3 was never the subject of any
debate whatever, [footnote omitted] since obviously
it was deemed to constitute a recognition of the law
of the forum state as controlling. What a furor
would have resulted if any member of Congress had
even suggested that a federal court could refuse to
apply the pertinent state law under Section 3, and
instead formulate a federal common law of survivor
ship of actions under the Civil Rights Act!
Pet, Br. at 12-13. Not only is this interpretation of the
statute inconsistent with the very thesis of the 1866
Civil Right Act, as demonstrated above, but it is also
factually inaccurate. The “ federal common law” aspects
of § 3 may not have been the focus of debate, but they
did not go unnoticed by opponents of the bill. When it
1)2 It is precisely in this sense, we submit, that § 1988 “was de
signed to supplement but not supplant the Rules of Decision Act.”
Baker V. F&F Inv., 420 F.2d 1191, 1196 (7th Cir.), cert, denied,
400 U.S. 821 (1970). Even under that statute, as we show infra
pp. 17-22, federal courts are not bound to apply state law which
is inconsistent with federal interests.
came before the House of Representatives, Representative
Kerr attacked the provision bitterly:
I might go on and in this manner illustrate the prac
tical working of this extraordinary measure. But I
have said enough to indicate the inherent viciousness
of the bill. It takes a long and fearful step toward
the complete obliteration of State authority and the
reserved and original rights of the States. . . . Then
the things attempted to be prohibited are in them
selves so extraordinary and anomalous, so unlike any
thing ever attempted before by the Federal Govern
ment, that the authors of this bill feared, very prop
erly too, that the system of laws heretofore adminis
tered in the Federal courts might fail to supply any
precedent to guide the courts in the enforcement of
the strange provisions of this bill, and not to be
thwarted by this difficulty, they confer upon the
courts the power of judicial legislation, the power to
make such other laws as they may think necessary.
Such is the practical effect of the last clause of the
third section, which reads as follows:
. . . [text of statute omitted]
That is to say, the Federal courts may, in such cases,
make such rules and apply such law as they please,
and call it common law.
Cong. Globe, 39th Cong., 1st Sess. 1271 (1866) (empha
sis in original). Indeed, this was one of the grounds
upon which President Andrew Johnson vetoed the mea
sure, although his action was subsequently overridden by
the Congress.
It is clear that in States which deny to persons whose
rights are secured by the first section of the bill any
one of those rights, all criminal and civil cases affect
ing them, will, by the provisions of the third section,
come under the exclusive cognizance of the Federal
tribunals. It follows that if, in any State which de
nies to a colored person any one of all those rights,
13
14
that person should commit a crime against the laws
of the State, murder, arson, rape, or any other crime,
all protection and punishment through the courts of
the State are taken away, and he can only be tried
and punished in the Federal courts. How is the crim
inal to be tried? If the offense is provided for and
punished by Federal law, that law, and not the State
law, is to govern.
It is only when the offense does not happen to be
within the purview of the Federal law that the Fed
eral courts are to try and punish him under any
other law. Then resort is to be had to “ the common
law, as modified and changed” by State legislation,
“ so far as the same is not inconsistent with the Con
stitution and laws of the United States.” So that
over this vast domain of criminal jurisprudence, pro
vided by each State for the protection of its own citi
zens, and for the punishment of all persons who vio
late its criminal laws, Federal law, wherever it can
be made to apply, displaces State law.
Veto Message of President Andrew Johnson, printed in
id. at 1680 (1866).
Notwithstanding these protestations, the 1866 Act
became law, in part for the purposes of avoiding re
liance on state courts to enforce federal rights. See, e.g.,
id. at 602 (Sen. Lane).
Unquestionably, as Petitioner observes, § 1988 directs
federal courts in civil rights actions to examine state law
provisions upon an initial determination that federal
statutes, or rules promulgated pursuant to federal stat
ute, do not address procedural or remedial issues arising
in those actions. And where state law is adequate to
vindicate fully the constitutional rights which are the
subject of the litigation, § 1988 clearly authorizes its
use. But this is not the limit of § 1988; nor does the fact
that state survival statutes were found adequate in
Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961); Pritch
15
ard v. Smith, 289 F.2d 153 (8th Cir. 1961); Hall v.
Wooten, 506 F.2d 564 (6th Cir. 1974) ; Dean v. Shiver,
547 F.2d 227 (4th Cir. 1976); and Spence V. Staras, 507
F.2d 554 (7th Cir. 1974) indicate any conflict between
those decisions and the ruling below in this case, as
Petitioner suggests. Petition for Certiorari, at 6-10; see
Pet. Br. 16-17.13 In numerous cases, federal courts have
13 Petitioner has cited no case in which state survival laws were
applied to defeat a federal civil rights action. The description in
Pet. Br. 15 n .ll is simply in error. Holmes V. Silver Cross Hasp, of
Joliet, 340 F. Supp. 125 (N.D. 111. 1972) was a suit against a court-
appointed conservator, a hospital, and doctors on its staff, alleging
infringement of plaintiff’s freedom of religion by administration of
a blood transfusion without his consent. The court concluded that
the survival of the action under Illinois law depended on whether
the defendants were acting “ under color of state law.” 340 F.
Supp. at 129. It dismissed the court-appointed conservator from
the lawsuit on the ground that he shared in the Illinois courts’
judicial immunity in a § 1983 lawsuit (see Pierson v. Ray, 386 U.S.
547 (1967)). 340 F. Supp. at 131. All other defendants were
found to have acted under color of state law, and the court con
cluded that by applying Illinois survival statutes the action could
be maintained by decedent’s administrator. Id. at 134, 135-36.
In Evain V. Conlisk, 364 F. Supp. 1188 (N.D. 111. 1973), aff’d
without opinion 498 F.2d 1403 (7th Cir. 1974), the decedent’s
daughter brought a § 1983 action to recover damages for the al
leged wrongful killing o f her father by Chicago police officers.
The court held that the complaint stated no cause of action on behalf
of the plaintiff individually, for the same reasons given by this
Court in dismissing the writ of certiorari last Term in Jones v.
Hildebrant, supra. (The court did not hold, as Petitioner suggests,
that there was such a claim but that it did not survive under
Illinois law.) Further, the court recognized that Illinois’ “wrongful
death” statute permitted “ survival” of an action on behalf of de
cedent’s estate for damages. However, it held that plaintiff could
not maintain the suit because the appropriate statute of limitations
period had long passed before litigation was commenced. Id. at 1191.
See Ingram V. Steven Robert Corp., 547 F.2d 1260, 1262 (5th Cir.
1977) for an instructive comparison of policies applied under § 1988
with respect to statutes of limitation and survival or wrongful death
statutes.
It is true that in Holmes and some of the cases cited in text,
there is dictum to the effect that state law is controlling on ques
tions of wrongful death and survival. However, in all o f these eases,
16
exercised the power granted by § 1988 to utilize pro
cedural and remedial rules other than those embodied in
state law.
For example, in Davis v. Johnson, 138 F. Supp. 572,
575 (N.D. 111. 1955), the court found in § 1988 a direc
tive to extend “ suitable remedies,” and—relying in part
on maritime precedents—construed § 1983 to permit an
action by the administratrix of a decedent whose death
resulted from the alleged constitutional violation. In
Basista v. Weir, 340 F.2d 71, 86-87 (3d Cir. 1965), the
court held that punitive damages could be awarded in a
§ 1983 action under federal common law principles, al
though unavailable in a state court action. Similarly,
following this Court’s ruling in Sullivan, supra, the court
in Lee v. Southern Home Sites Corp., 429 F.2d 290, 294
(5th Cir. 1970) held that punitive damages could be
awarded in a § 1982 cause of action without examining
state law on the question. See also, Johnson v. Greer,
477 F.2d 101, 106 (5th Cir. 1973) (referring to “ the
prevailing view [of tort law on proximate cause] in this
country” to determine proper federal rule in § 1983
case) ; Young v. ITT, 438 F.2d 757, 760 (3d Cir. 1971)
(damages available in § 1981 employment discrimination
suit); Ambrose v. Wheatley, 321 F. Supp. 1220, 1221 n.l
(D. Del. 1971) (punitive damages); United States ex rel.
Washington v. Chester County Police Dep’t, 300 F. Supp.
either state law was found adequate to permit federal civil rights
actions to be pursued, or some other ground for dismissal was
present. The courts have recognized that the breadth o f interests
protected by § 1983 extend beyond narrow state law tort and con
tract categories, and require generous interpretation of state sur
vival statutes. E.g., Dean v. Shirer, supra, 547 F.2d at 229-30. Cf.
Monroe v. Pape, 365 U.S. 167, 196 (1961) (Harlan, J., concurring).
In many cases, including those cited in the following paragraph in
text, courts have freely ventured beyond state law to give effect
to the underlying policies of the civil rights acts. There is little
support in the lower court holdings for Petitioner’s confined reading
of § 1988.
17
1279, 1282 (E.D. Pa. 1969) (§ 1981 damage action for
police brutality; alternative holding).
The sum of the existing jurisprudence is that § 1988
requires no slavish adherence to provisions of state law
but permits its rejection, and the fashioning or applica
tion of interstitial federal common law, in order to pro
vide complete justice under the Civil Rights Acts.
B. The same flexibility characterizes the practice o f the
courts in all federal question litigation with respect
to application o f state law; this flexibility is entirely
consistent with the Rules o f Decision Act and inheres
in the constitutional grant o f jurisdiction.
Even without § 1988, and its explicit conditional lan
guage, state law would serve as a reference point in fed
eral question litigation on matters not controlled by
federal rule or statute; however, its use would not be
obligatory but would depend on the circumstances and the
effect on federal interests. This relationship between
state and federal law follows logically from the limited
constitutional grant of jurisdiction to the Courts of the
United States, the uniquely federal linkage of states and
nation, and the function of state law as a source of rules
governing primary conduct.
The Constitution provides for the judicial Power of the
United States, extending, inter alia, to “ all Cases, in Law
and Equity, arising under this Constitution, the Laws of
the United States, and Treaties made------ ” U.S. Co n s t .,
art. Ill, § 2, cl. 1. Inherent in this grant of judicial au
thority to the national government is the power to deter
mine the principles of law applicable to cases upon which
the judicial Power acts. Thus, in the absence of statute,
federal courts would have been obliged to exercise the
interpretive authority of a court of common law to deter
mine questions arising in the course of federal case liti
18
gation.14 This power was limited by § 34 of the Judiciary
Act of 1789, 1 Stat. 92 (the Rules of Decision Act), which
provided that
. . . the laws of the several states, except where the
constitution, treaties, or statutes of the United States
shall otherwise require or provide, shall be regarded
as rules of decision in trials at common law in the
courts of the United States in cases where they
apply.1®
However, the Rules of Decision Act has never been inter
preted to mandate unswerving application of state law
to every matter not explicitly determined by federal stat
ute or rule.16
In Robinson v. Campbell, 16 U.S. (3 Wheat.) 212
(1818), an ejectment action arising under an interstate
compact, this Court held that the Rules of Decision Act
had to be construed in accordance with other provisions
of federal law. Since Congress had provided for federal
court proceedings in equity in the first Judiciary Act,
the Court refused to apply state law, inconsistent with
1,4 Similarly, in the absence o f statute, the Courts of the United
States would possess inherent judicial authority to regulate their
own procedures. For example, although the Judiciary Act o f 1789
did not grant explicit rulemaking authority to this Court ( com
pare §2, Act of May 8, 1792, 1 Stat. 275, 276, authorizing this
Court to prescribe forms and modes o f proceedings to district and
circuit courts), in August of 1792 the Court announced that it
“ consider[ed] the practice of the courts of King’s Bench and
Chancery in England, as affording outlines for the practice of this
court; and that, [it] will, from time to time, make such alterations
therein, as circumstances may render necessary.” 2 U.S. (2 Dali.)
411-14 (1792).
15 The Rules of Decision Act is now codified at 28 U.S.C. § 1652.
1,6 In Marbury v. Madison, 5 U.S. (1 Cr.) 137, 162-63 (1803),
Chief Justice Marshall relied upon Blackstone’s COMMENTARIES
to imply the existence of a judicial remedy from a United States
statute considered to grant a legal right, but silent on the subject
of remedy.
19
equity jurisdiction, pursuant to the Rules of Decision
Act. Id. at 222-23 (alternative holding). Since then, in
innumerable cases involving federal questions, this Court
has determined that the substantive principles of federal
law require, in exception to the Rules of Decision Act, the
development and application of “ interstitial” federal com
mon law. E.g., Illinois v. City of Milwaukee, 406 U.S. 91
(1972) ; Bivens v. Six Unknown Named Agents, 403 U.S.
338 (1971); J.I. Case Co. v. Borak, 377 U.S. 426 (1964) ;
Local 17L v. Lucas Flour Co., 369 U.S. 95 (1962) ;
Farmers Educ. Coop. Union v. WDAY, 360 U.S. 525
(1959) ; McAllister v. Magnolia Petroleum Co., 357 U.S.
221 (1958) ; Textile Workers Union v. Lincoln Mills, 363
U.S. 448 (1957) ; National Metropolitan Bank v. United
States, 323 U.S. 454 (1945) ; Tunstall v. Brotherhood of
Locomotive Firemen & Enginemen, 323 U.S. 210 (1944);
Clearfield Trust Co. v. United States, 318 U.S. 363
(1943) ; Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S.
173 (1942) ; Jackson County v. United States, 308 U.S.
343 (1939) ; see generally Monaghan, The Supreme Court,
197U Term—Foreword: Constitutional Common Law, 89
Harv. L. Rev. 1 (1975).
The standards of § 1988 as well as the Rules of De
cision Act were perceptively summarized in this language
from a § 1983 decision:
. . . our Court of Appeals has concluded that § 1988
was designed to supplement but not supplant the
Rules of Decision Act and is applicable only when
federal substantive law is not suitably adapted or
sufficient to provide an appropriate remedy and the
states have remedial provisions of law which, if ap
plied, will help achieve the goals desired by the Civil
Rights Act. Baker v. F&F Investment Company, 420
F.2d 1191, 1193-1197 (7th Cir. 1970), cert, denied,
Universal Builders, Inc. v. Clark, 400 U.S. 821, 91
S. Ct. 40, 27 L. Ed. 2d 49 (1970). After reviewing
the legislative history behind the Rules of Decision
2 0
Act and § 1988, the Court there concluded that the
Rules of Decision Act requires the application of
state law in federal question suits where Congress
has not specifically legislated on the particular aspect
of law covered by the state law and where no uniform
federal common law is felt by the courts to be re
quired, and if application of the state law does not
deny or conflict with the very right to relief created
by the federal law.
Luker v. Nelson, 341 F. Supp. 113, 116 (N.D. 111. 1972)
(emphasis in original). Thus, it is the nature of federal
interests affected in any instance which determines the ex
tent to which state law shall apply, not any mechanical ap
plication of the Rules of Decision Act. Compare United-
States v. Yazell, 382 U.S. 341 (1966) (Texas law of cov
erture applies to Small Business Administration loan
agreements) ivith United States v. Carson, 372 F.2d 429
(8th Cir. 1967) (Tennessee limitation on damages would
not be applied to government suit for conversion of prop
erty secured by mortgage executed in connection with
Bankhead-Jones Farm Tenant Act loan).
Just a few Terms ago, this Court reemphasized the
choice-of-law authority allowed courts in federal question
litigation 17 by the Rules of Decision Act. In United States
v. Little Lake Misere Land Co., 412 U.S. 580 (1973),
the government brought an action to quiet title to parcels
of land in Louisiana. The issue decided by this Court was
whether Louisiana law applied to determine the validity
or extinguishment of prior reservations of mineral rights
in the act of sale and judgment of condemnation by which
17 Existence of the same authority under the Rules of Decision
Act in diversity cases has been suggested. See Atkins v. Schmutz
Mfg. Co., 435 F.2d 527 (4th Cir. 1970), cert, denied, 402 U.S. 932
(1971) and discussion of the case in Redish and Phillips, Erie and
the Rules of Decision A ct: In Search of the Appropriate Dilemma,
91 H arv . L. Rev. 356, 378-80, 391-92 n.189 (1977). That question
is neither presented nor implicated in the case before the Court,
21
the government acquired the land. State law has always
had a singular importance with respect to real property
matters, and the Court of Appeals had accepted applica
tion of the Louisiana rule, finding that it was nondis-
criminatory with respect to the United States as a
party to a land transaction. Id. at 584-85. In his opinion
reversing that judgment, the Chief Justice observed:
. . . The Court of Appeals [’] . . . opinion seems to
say that state law governs this land acquisition be
cause, at bottom, it is an “ ordinary” “ local” land
transaction to which the United States happens to be
a party. The suggestion is that this Court’s decision
in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938),
compels application of state law here because the
Rules of Decisions Act, 28 U.S.C. § 1652, requires
application of state law in the absence of an explicit
congressional command to the contrary. We disagree.
The federal jurisdictional grant over suits brought by
the United States is not in itself a mandate for apply
ing federal law in all circumstances. This principle
follows from Erie itself, where, although the federal
courts had jurisdiction over diversity cases, we held
that the federal courts did not possess the power to
develop a concomitant body of general federal law.
. . . It is true, too, that “ [t]he great body of law in
this country which controls acquisition, transmission,
and transfer of property, and defines the rights of
its owners in relation to the state or to private par
ties, is found in the statutes and decisions of the
state.” Davies Warehouse Co. v. Boivles, 321 U.S.
144, 155 (1944). Even when federal general law
was in its heyday, an exception was carved out for
local laws of real property. . . .
Despite this arguable basis for its reasoning the
Court of Appeals in the instant case seems not to
have recognized that this land acquisition, like that
in Letter Minerals, is one arising from and bearing
heavily upon a federal regulatory program. Here,
22
the choice-of law task is a federal task for federal
courts, as defined by Clearfield Trust Co. V. United
States, 318 U.S. 363 (1943). Since Erie, and as a
corollary of that decision, we have consistently acted
on the assumption that dealings which may be “ ordi
nary” or “ local” as between private citizens raise
serious questions of national sovereignty when they
arise in the context of a specific constitutional or
statutory provision; particularly is this so when
transactions undertaken by the Federal Government
are involved, as in this case. In such cases, the Con
stitution or Acts of Congress “ require” otherwise
than that state law govern of its own force.
There will often be no specific federal legislation gov
erning a particular transaction to which the United
States is a party; here, for example, no provision of
the Migratory Bird Conservation Act guides us to
choose state or federal law in interpreting federal
land acquisition agreements under the Act. But si
lence on that score in federal legislation is no reason
for limiting the reach of federal law, as the Court
of Appeals thought in Letter Minerals. To the con
trary, the inevitable incompleteness presented by all
legislation means that interstitial federal lawmaking
is a basic responsibility of the federal courts. “At
the very least, effective Constitutionalism requires
recognition of power in the federal courts to declare,
as a matter of common law or ‘judicial legislation,’
rules which may be necessary to fill in interstitially
or otherwise effectuate the statutory patterns enacted
in the large by Congress. . . .”
Id. at 590-93 (footnotes omitted).18
18 “ [S]tate law is applied [under the Rules of Decision Act] only
because it supplements and fulfills federal policy, and the ultimate
question is what federal policy requires.” International Union v.
Hoosier Cardinal Corp., 383 U.S. 696, 709 (1966) (White, J., dis
senting) .
23
That it is federal rights protected, and federal reme
dies afforded, by 42 U.S.C. § 1983, is beyond dispute. See,
e.g., Steffelw. Thompson, 415 U.S. 452 (1974) ; Lynch v.
Household Fin. Corp., 405 U.S. 538 (1972) ; Mitchum V.
Foster, supra; Monroe v. Pape, supra, 365 U.S. at 196
(Harlan, J., concurring). The federal interests thus es
tablished by the Civil Rights Acts would, even in the ab
sence of § 1988, therefore, have to be taken into account
in deciding whether to apply state law in Civil Rights
Acts suits. Accordingly there can be no doubt of the
power of federal courts to disregard state law in such
suits if that course is deemed necessary to “effectuate the
statutory pattern enacted in the large by Congress,” and
we turn to a consideration of the circumstances in which
the exercise of the power is appropriate.
II
In This Case Louisiana’s Limited Survival Of Actions
Statute Was Properly Not Applied Because To Do So
Would Conflict With The Remedial And Deterrent Pur
poses Of The Federal Civil Rights Acts.
We have shown above that courts entertaining federal
civil rights actions are not invariably required to follow
the provisions of state law on matters as to which the fed
eral Civil Rights Acts are silent. Accordingly, we contend,
the judgment below must be sustained unless this Court
determines that the courts below used the wrong stand
ards to decide whether Louisiana’s survival statute should
be applied to this case. We proceed, therefore, to articulate
first, the considerations relevant to the choice-of-law de
cision; second, the policies and purposes which underlie
the federal Civil Rights Acts in general, and the Ku Klux
Act of 1871 (42 U.S.C. § 1983) in particular; and third,
the reasons why we believe the correct result was reached
in this case.
24
A. Factors bearing upon the choice o f law.
It is worth reiterating, as a preliminary matter, that
the authority to apply or reject state law is presented
under either § 1988 or the Rules of Decision Act only on
an interstitial basis, where federal statutory law is in
complete and silent about the source of decisional rules
to fill any gaps. Neither we nor this case invite the Court
to sanction, as it has consistently refused to do, a general
common law. Where federal statutes direct uncondi
tionally— as neither § 1988 nor the Rules of Decision Act
do— that state law is to be incorporated as federal law,
that is the end of the matter; there is no room nor need
for “ interstitial” federal common law. Chevron Oil Co.
v. Huson, 404 U.S. 97 (1971).19
Analysis of this Court’s choice-of-law rulings reveals
two general categories of facts and circumstances which
are taken into account.20 The first may be called the
“nature of the national interest.” This encompasses such
matters as: the presence of the United States, or an
agency of the United States, as a party;21 whether the
substantive questions in the lawsuit involve the validity or
consequences of activities of the United States or its
agencies;22 whether the decision of the substantive ques
^ Cf. Alyeska Pipeline Serv. Co. V. Wilderness Soc’y, 421 U.S.
240 (1975) (Congressional enactment of various specific authoriza
tions for the award o f attorneys’ fees by federal courts, against
background o f general statutory limitation of power to award fees,
precluded judicial adoption o f broad “ private attorney general”
theory).
2,0 “ . . . whether state law is to be applied . . . ‘necessarily is de
pendent upon a variety of considerations always relevant to the
nature of the specific governmental interests and to the effects upon
them of applying state laws.’ ” United States v. Little Lake Misere
Land Co., supra, 412 U.S. at 595, quoting from United States V.
Standard Oil Co., 332 U.S. 301, 309-10 (1947).
21 E.g., Clearfield Trust Co. v. United States, supra.
22 E.g., Hughes V. Washington, 389 U.S. 290 (1967).
25
tions will likely have a wide effect upon the conduct of
a national regulatory or assistance program; 23 whether
the litigation itself has been explicitly or implicitly sanc
tioned by the Congress as a means of effectuating national
policy,24 etc.
In general, the “ stronger” the federal interest, the
less likely it is that state laws will be found to apply.
This does not mean, however, that state law is barred
from consideration. The presence of an important fed
eral interest is usually stated to be sufficient to require
that “ federal law” be applied to the substance of the case,
but even then, as this Court has said, “ [i]n our choice
of the applicable federal rule we have occasionally selected
state law.” Clearfield Trust Co. v. United States, supra,
318 U.S. at 367. In some cases this is justified on the
assumption “that Congress has consented to application of
state law . . . [a]nd in still others state law may fur
nish convenient solutions in no way inconsistent with
adequate protection of the federal interest.” United States
v. Standard Oil Co., 332 U.S. 301, 309 (1947).
The second set of factors relates to the impact of apply
ing state law: both its impact upon the case at hand and
upon the federal interests which are involved in and af
fected by it. Aspects of this inquiry include: the ability
of the national government to anticipate and meet state
law requirements in the normal operations of its pro
grams ; 25 the availability of alternative mechanisms to
satisfy the federal interest which are unaffected by the
state law (including their likely effectiveness and the
access of the parties to them );26 the degree to which
23 E.g., United States V. Little Lake Misere Land Co., supra, 412
U.S. at 597.
24 E.g., Textile Workers Union v. Lincoln Mills, supra.
25 E.g., United States v. Yazell, supra.
2,(5 See United States V. 93.970 Acres of Land, 360 U.S. 328 (1959).
2 6
application of state law would abort, rather than merely
alter, proceedings in the pending lawsuit,27 etc.
These variegated concerns underscore our earlier point
that the choice of law determination is far from automatic
or mechanical. Diverse results flow from rational analysis
of competing values in these cases. Distinctions are often
founded upon the intensity of the national interest and
the effect of state law upon the national policy, as the
following examples illustrate.
We consider first suits directly touching or implicating
governmental activities. In Clearfield Trust Co. v. United
States, supra, the Court concluded that the interest of
the government in a uniform national definition of its
rights and duties was so great that federal, and not state,
law would be applied to its transactions in commercial
paper. This interest was found to be much more attenu
ated in Bank of America v. Parnell, 352 U.S. 29 (1956)
(a diversity case) ; since there the Court also viewed ap
plication of state law to private transactions in commer
cial paper as having little impact upon the federal govern
ment, it rejected the Clearfield doctrine.
Similarly, in D’Oench Duhme & Co. v. FDIC, 315 U.S.
447 (1942), the Court inferred from various statutes a
protective policy toward the federal agency involved in
the case, which it held required the application of federal
and not state law. But where no need for such special
solicitude was evidenced in federal legislation (or the
Constitution or treaties), state law rules were permitted
to determine, for example, the tax liability of a national
agency in Reconstruction Fin. Corp. v. Beaver County,
328 U.S. 204 (1946) and the availability of interest on
tax payments improperly exacted from Indians, which the
United States sued to recover in Board of County
Comm’rs v. United States, 308 U.S. 343 (1939).
27 E.g., McAllister v. Magnolia Petroleum Co., supra.
27
A like pattern obtains in litigation between private
parties in which important federal interests become en
tangled. In Sola Elec. Co. v. Jefferson Elec. Co., supra (a
diversity action), this Court ruled that a state estoppel
rule could not be given effect to prevent presentation of
a defense of illegality under the Sherman Act. On the
other hand, no important federal policy issues were af
fected by the application of state law to determine the
relations of private parties under a federal mineral lease
in Wallis v. Pan American Petroleum Corp., 384 U.S. 63
(1966). Federal law was held to govern tort liability in
Francis v. Southern Pax;. Co., 333 U.S. 445 (1948) by
virtue of an implied Congressional approval of the pre-
statutory common law rule; and to prescribe available
defenses in Holmberg v. Armbrecht, 327 U.S. 392 (1946)
because the underlying claim was a federally created
equitable right held not subject to state rules of limita
tions.218
Statutes of limitations cases form a distinct body of
law, primarily because the impact of applying state limi
tations (if any) is ordinarily confined to the litigation, 28
28 Cf. Robinson v. Campbell, supra. The law applied in suits
brought pursuant to § 301 of the Taft-Hartley Act, 29 U.S.C. § 185,
also illustrates the point well. In Textile Workers Union v. Lincoln
Mills, supra, 353 U.S. at 456, this Court announced that federal law,
“which the courts must fashion from the policy of our national
labor laws,” would be the substantive law applied in suits under
§ 301 to enforce agreements to arbitrate between labor unions and
management. Charles Dowd Box Co. v. Courtney, 368 U.S. 502
(1961) allowed such suits to be brought in state, as well as federal,
courts— but in such instances, the Court held that same Term in
Local 17U V. Lucas Flour Co., 369 U.S. 95 (1962), federal law must
be applied. Yet even in this area in which federal concerns seemed
to be paramount, the Court has ruled that there is room for flexi
bility, for diverse state laws. State statutes of limitation, the Court
said in International Union v. Hoosier Cardinal Corp., 383 U.S. 696,
701-03 (1966), could be applied in §301 suits because “ [l)ack of
uniformity in this area is . . . unlikely to frustrate in any important
way the achievement of any significant goal of labor policy.” Id. at
702.
28
and does not affect federal interests or ongoing federal
programs. See, e.g., Cope v. Anderson, 331 U.S. 460, 463-
64 (1947) (state limitations period would be applied to
equitable action to enforce federally created assessments
on shareholders of insolvent national bank, although com
mencement of period is question of federal law) ; Inter
national Union v. Hoosier Cardinal Corp,, supra n. 28;
but see McAllister V. Magnolia Petroleum Co., supra (state
limitation period could not be applied to unseaworthiness
claims where it was shorter than federal Jones Act period,
since federal law requires that both claims be prosecuted
in a single action).
These choice-of-law principles are applicable to suits
brought under the federal Civil Rights Acts. As we dis
cuss in the next section, these statutes create important
federal interests, recognized by this Court’s ruling in
Sullivan v. Little Hunting Park, supra, 396 U.S. at 239,
that “ [cjompensatory damages for deprivation of a fed
eral right are governed by federal standards, as pro
vided by Congress in 42 U.S.C. § 1988 . . . .” 29 See Hodge
v. Seiler, 558 F.2d 284, 287-88 (5th Cir. 1977) (as a
matter of federal law, at least nominal damages must be
awarded for violation of § 1982 right) ; Pollard v. Uniteo.I
States, 384 F. Supp. 304, 307 n.2 and accompanying text
(M.D. Ala. 1974) (state limitations period applies, but
in determining commencement of period, federal— not
state— rule with respect to fraudulent concealment gov
erns) ; Ingram v. Steven Robert Corp., supra, 547 F.2d
at 1262 n.2 and accompanying text (distinguishing be
tween state statutes of limitation and survival statutes 29
29 Compare J.l. Case Co. v. Borak, supra, 377 U.S. at 434: “ But
we believe that the overriding federal law applicable here would,
where the facts required, control the appropriateness of redress
despite the provisions of state corporation law, for it ‘is not un
common for federal courts to fashion federal law where federal
rights are concerned.’ Textile Workers V. Lincoln Mills . . . .”
29
based upon their im pact);30 Gore v. Turner, 563 F.2d
159, 164 (5th Cir. 1977) (in § 1982 action, court should
have awarded punitive damages based upon “ evaluation
of the nature of the conduct in question, the wisdom of
some form of pecuniary punishment, and the advisability
of a deterrent to future illegal conduct” ) ; Miller v. Smith,
431 F. Supp. 821 (N.D. Tex. 1977) (state tolling rule
would not be followed in § 1983 case if its application
would be inconsistent with purposes underlying federal
cause of action).
Thus, in our view, decision of this matter hardly in
volves a special rule for civil rights actions; rather, the
courts below applied traditional choice-of-law principles
to the facts, taking into account the broad remedial and
deterrent purposes of the federal Civil Rights Acts and
the extent to which application of Louisiana’s survival
statute would frustrate those purposes.
B. The remedial-deterrent purposes o f the Civil Rights Acts.
Any elucidation of the purposes of the federal Civil
Rights Acts, and in particular of the provision of the
1871 Ku Klux Act which is now codified as 42 U.S.C.
§ 1983, must begin with the fundamental proposition that
§ 1983 creates a cause of action separate and apart from
any state law. While the same conduct may give rise
to a state-law tort or other liability, that fact is purely
coincidental to the § 1983 liability created by conduct
under color of state law which deprives an individual of
constitutional rights. In recognition of this principle, and
of the Reconstruction Congresses’ desire to provide, in the
federal Civil Rights Acts, remedies which are independent
of the state-created procedures to vindicate constitutional
rights, this Court has consistently held that there is no
exhaustion requirement in § 1983 actions. Preiser v.
Rodriguez, 411 U.S. 475 (1973); Damico v. California,
3® Cf. Burnett V. New York Cent. R.R. Co., 380 U.S. 424 (1965).
30
389 U.S. 416 (1967) ; McNeese v. Board of Educ., 373
U.S. 668 (1963) ; Monroe v. Pwpe, supra. Hence, there
is no anomaly in the circumstance that the malfeasor
may be required to respond to the injured party sepa
rately in tort under state law and in a federal cause of
action for deprivation of constitutional rights. That re
sult flows ineluctably from the federal nature of our
nation. As Mr. Justice Harlan said, concurring in Mon
roe v. Pape, supra, 365 U.S. at 196, “ a deprivation of a
constitutional right is significantly different from and
more serious than a violation of a state right and there
fore deserves a different remedy even though the same
act may constitute both a state tort and the deprivation
of a constitutional right.”
This central characteristic of the federal Civil Rights
Acts is closely related to the important federal interests
which they are intended to protect, and which must be
given effect in actions brought thereunder. They are,
first, designed to afford complete justice (independent, as
we have said, of any other remedy) to those whose con
stitutional rights have been denied by state officers. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 231-32 (1970)
(Brennan, J., concurring in part and dissenting in part).31
Thus, for example, this Court has held that in civil rights
actions, damages may be awarded irrespective of state
law provisions, Sullivan v. Little Hunting Park, supra,
and that injunctions against state court proceedings may
issue notwithstanding 28 U.S.C. § 2283, Mitchum v.
Foster, supra. See also, Albemarle Paper Co. v. Moody,
31 As we pointed out in the Brief for the Lawyers' Committee for
Civil Rights Under Law, et al., as Amici Curiae in No. 76-5416,
Jones V. Hildebrant [hereinafter, “ Jones Amici Brief” ] (see pp.
2-3 supra,), at 36-37, federal civil rights legislation is part of a
tradition stretching back to Marbury v. Madison, supra, whereby
American law has fashioned remedies adequate to compensate those
who are deprived of what the Constitution and laws guarantee them.
31
supra n. 7. But these statutes do more than authorize
relief.
The constitutional provisions protecting individuals
(both the specific protections of the Bill of Rights made
applicable to actions of the states by the Fourteenth
Amendment and the more general provisions embodied
in the equal protection and due process guarantees) are
more than remedial. As integral parts of the organic law
of our nation, they directly regulate primary conduct.
With respect to the conduct of state officials, the federal
Civil Rights Acts establish private litigation as a principal
instrument by which these constitutional provisions are
to be implemented.32 Hence that litigation must not only
afford redress to those whose constitutional rights are
invaded. If it is to be truly effective as a vehicle of Four
teenth Amendment policy, its sanctions must also be suf
ficiently credible and efficient to serve as a practical de
terrent to illegal conduct.33
,3;3 “ The very purpose of § 1983 was to interpose the federal courts
between the States and the people, as guardian of the people’s fed
eral rights— to protect the people from unconstitutional action under
color of state law, ‘whether that action be executive, legislative, or
judicial.’ ” Mitchum V. Foster, supra, 407 U.S. at 242, quoting from
Ex parte Virginia, 100 U.S. 339, 346 (1880). As the Court explained
in District of Columbia V. Carter, 409 U.S. 418, 427 (1973) :
To the Reconstruction Congress, the need for some form of
federal intervention was clear. It was equally clear, however,
that Congress had neither the means nor the authority to exert
any direct control, on a day-to-day basis, over the actions of
state officials. The solution chosen was to involve the federal
judiciary.
33 As stated in Niles, Civil Actions for Damages Under the Fed
eral Civil Rights Statutes, 45 Tex. L. Rev. 1015, 1026 (1967) :
[T]he basic policy behind tort law is compensation for physi
cal harm to an individual’s person or property by shifting losses
from the one injured to the one perpetrating the injury, while
the underlying policy of the civil rights statutes is quite dif
ferent. The legislative intent behind these statutes is not en
tirely certain since other provisions of the Act of 1871 received
32
The Reconstruction Congresses hoped that successful
lawsuits for violation of constitutional rights, which they
were authorizing to be brought in the federal courts,
would not only compensate the victims of unconstitutional
conduct but also provide effective warning to state of
ficials inclined to disregard the commands of the Thir
teenth and Fourteenth Amendments. The concept was well
established in the common law. For example, in Barry v.
Edmunds, 116 U.S. 550 (1886), one of the Virginia Cou
pon Cases, the Court sustained federal question jurisdic
tion in a suit against a local tax collector under the Con
tract Clause because punitive damages, allowable as a
part of the federal common law applicable to the suit,
might exceed the minimum jurisdictional amount. In the
course of its opinion, this Court discussed English Cases
recognizing the deterrence value of actions against officials
who misuse their powers (id. at 566) :
The case of Beardmore v. Carrington, 2 Wils. 244,
was an action of trespass and false imprisonment
against the defendants, who were four of the King’s
messengers in ordinary. They justified the alleged
far more attention in congressional debate than did those that
eventually became sections 1983, 1985, and 1986. One purpose
of the Act apparently was to provide a federal forum for
rights that the disorganized Southern state governments were
not protecting adequately. It seems clear, however, from the
statements of a few legislators, the title of the Act itself,
and the circumstances surrounding its passage that the Act’s
primary purpose was to enforce the fourteenth amendment by
providing a positive, punitive civil remedy for acts of racial
discrimination. Thus an award o f damages would depend not
on the common-law test of whether a plaintiff had suffered
a measurable physical or economic injury, but on whether the
defendant’s conduct came within the scope of actions that the
statutes were intended to penalize. While traditional tort law
damages rules may be appropriate to accomplish some o f the
civil rights statutes’ purposes, the tort-law rules do no [sic]
allow full realization o f those purposes1 because of their empha
sis upon loss-shifting rather than upon punishment and de
terrence. [footnotes omitted]
33
trespass under a warrant of the Earl of Halifax,
then one of the principal Secretaries of State, re
quiring them to arrest the plaintiff as the author of
some seditious libels and to seize his books and papers.
There was a verdict for the plaintiff for £ 1,000 dam
ages, and a motion for a new trial on the ground that
the damages were excessive. The court (Pratt, after
wards Lord Camden, being Lord Chief Justice) said:
“Can we say that £1,000 are monstrous damages as
against him who has granted an illegal warrant to a
messenger, who enters into a man’s house and prys
into all his secret and private affairs, and carries
him from his house and business and imprisons him
for six days? It is an unlawful power assumed by a
great minister of state. Can anybody say that a
guinea per diem is sufficient damages in this extraor
dinary case, which concerns the liberty of every one
of the King’s subjects? We cannot say the damages
of £1,000 are erroneous.” The dignity and value of
the right assailed, and the power and authority of
the source from which the assault proceeds, are ele
ments to be considered in the computation of dam
ages, if they are to be, not only compensation for the
direct loss inflicted, but a remedy and prevention for
the greater wrong and injury involved in the appre
hension of its repetition.
The combination of remedial and deterrent goals in
federal statutes creating causes of action is not uncom
mon. Recently construing such a statute (the Clayton
Act), this Court allowed foreign governments to bring
actions under the law in order to preserve “the maximum
deterrent effect of treble damages upon all potential vio
lators.” Pfizer, Inc. v. Government of India, 46 U.S.L.W.
4073, 4075 (January 11, 1978) (footnote omitted).34
See also Gore V. Turner, supra, 563 F.2d at 164: “ Because of
the seriousness of the defendant’s conduct, this Court directs the
district court to award punitive damages to deter the defendant
34
Thus, we perceive the federal Civil Rights Acts, passed
in the exercise of Congress’ authority under the Thir
teenth and Fourteenth Amendments, to create two prin
ciple federal interests in lawsuits brought under them:
first, that individuals denied their constitutional rights by
state officials or others acting under color of state law
be fully compensated, and second, that the federal remedy
be maximally effective in order to deter those wielding
state power from using it in contravention of federal
constitutional guarantees.
C. Abatement o f this action by reason o f Clay Show’s
untimely death would be inconsistent with Congress’
purposes in creating the § 1983 cause o f action.
We come, ultimately, to the precise issue in this case:
whether the lower courts correctly applied the factors
identified above, in relation to the purposes of the federal
Civil Rights Acts delineated above, when they concluded
that the provisions of Louisiana’s survival statute should
not cause this action to abate. We submit that they did.
The entire discussion heretofore establishes, we believe,
that there is no simplistic answer to this question. Courts
from such conduct in the future” ; Rodriguez V. Taylor, No. 76-2609
(3d Cir., December 27, 1977), slip op. at p. 9:
The “ amounts owing” to a victim of age discrimination are
not further defined by statute. Thus, the scope of pecuniary
relief available under the ADEA must be ascertained from
examination of the whole statutory scheme. Damage standards
should effectuate the purposes of antidiscrimination statutes.
See generally Rogers V. Exxon Research <fe Engineering Co.,
550 F.2d 834, 839-42 (3d Cir. 1977).
Monetary awards exacted from employers who practice unlaw
ful discrimination serve two primary functions. First, the
prospect of economic penalties more certainly deters illegal
employment practice than does exposure to injunctive relief
or prospective equitable remedies such as reinstatement. Sec
ond, economic exactions recompense individuals for injuries
inflicted by employers’ discriminatory conduct.
35
are no more precluded from rejecting state survival
statutes because the federal Civil Rights Acts are silent
on the subject (see Pet. Br. at 10-11) than they are
precluded from awarding damages because the Acts do
not expressly mention them. Sullivan v. Little Hunting
Park, supra. Nor does the fact that 42 U.S.C. § 1986 con
tains a survival provision establish any congressional
policy with respect to survival of other civil rights suits.
(See Pet. Br. at 11, 13, 26.)35 Rather, the task is to
determine how the federal and individual interests may
best be accommodated.
Unlike statutes of limitations, whose purpose is to pro
vide assurance that one will not be held to answer for
conduct long past, and which therefore create cognizable
interests in persons who may be made parties defendant
in federal civil rights actions,36 survival statutes (at
least as they arise in this case) serve no interest in re
pose: the action has already been brought and defend
ants called upon to answer for their conduct.* 31 Abate
3,5 As we have demonstrated in the Jones Amici Brief, at pp. 24-
31, even if the legislative history surrounding rejection of the Sher
man Amendment and passage of § 1986’s predecessor were much
clearer, it would be more than the process of implication can bear
to view § 1986 as even an indication that survival of civil rights
actions is inconsistent with congressional intent. Petitioner seems
not to recognize that this logic would invalidate decisions such as
Brazier V. Cherry, supra, and Pritchard v. Smith, supra, cases with
which he does not quarrel.
■3'6 Even with respect to such matters, courts have employed federal
tolling rules consistent with the purposes underlying the Civil Rights
Acts to avoid injustice which would result from applying state stat
utes of limitations. E.g., Mizell V. North Broward Hosp. Dist., 427
F.2d 468, 474 (5th Cir. 1970); Pollard v. United States, supra; see
also Miller v. Smith, supra (state tolling rule would not be applied
to sustain timeliness of federal suit since court construed federal
policy to require prompt resort to judicial remedy).
37 For purposes of the decision in this case, the allegations of the
complaint that Shaw’s constitutional rights were violated must be
taken as true. Application of the procedural rule for which Peti-
36
ment of the litigation before trial because of the death of
the plaintiff cuts off all opportunity to prove the claim.
Whatever may be the justification for allowing this result
in litigation to enforce state-created tort interests (see
note 33 supra), there is no adequate reason to permit
the vindication of constitutional rights, and the deterrence
of unconstitutional conduct, to be impeded because of
the death of one who claimed denial of his rights. Such
a result is wholly inconsistent with the purposes of the
federal Civil Rights Acts.
In our Jones Amici Brief (see note 31 supra), at pp.
18-36, we showed that the courts are authorized to enter
tain § 1983 wrongful death suits involving alleged un
constitutional police misconduct or brutality without re
gard to the specific provisions of state statutes— although
§ 1988 permits “borrowing” those statutes if they further
the purposes of the federal cause of action. That conclu
sion flows, as we demonstrated, from the broad remedial
and deterrent purposes of the federal Civil Rights Acts.
We also argued (pp. 36-44) that restrictive damages
limitations of state wrongful death laws do not bind
even those courts which “borrow” the statutes in § 1983
claims, again because such limitations are inconsistent
with the “ complete justice” theme of the Reconstruction
statutes. The present case involves an even harsher re
sult than in Jones. There, if Mrs. Jones had brought an
action to recover damages for the injuries to and death
of her son,* 38 she could at least have recovered compensa
tion for any actual pecuniary losses, up to a maximum of
$45,000. See Jones Amici Brief, p. 5. Here, whether or
not the Petitioner and other defendants in the action con
spired to deprive Shaw of his constitutional rights, all
chance to vindicate those rights or to prove consequential
tioner contends would cause dismissal of civil rights actions without
regard to their underlying merit.
38 See note 2 supra.
37
losses would be barred by the fortuitous circumstance of
Shaw’s death.
The rule advanced by Petitioner would not be limited
to cases in which death was apparently unrelated to the
actions constituting a deprivation of constitutional rights
(see Pet. Br. at 8 n.3). It would apply equally to an indi
vidual who was brutally beanten to death by state officials,
but who did not happen to be survived by “ spouse, children,
parents, [o] siblings.” The opportunity for that individ
ual’s estate— or (indirectly) for a creditor of the estate
— to show that recoverable loss resulted from that beating
would be forever extinguished if courts in § 1983 suits
may not displace a state survival statute like Louisiana’s.
(As one court has said, this result “would encourage offi
cers not to stop after they had injured but to be certain
to kill.” Davis V. Johnson, supra, 138 F. Supp. at 574.)
Consider the following hypothetical situation, slightly dif
ferent from the facts here but, we submit, entirely
plausible:
If Clay Shaw had been severely beaten, without cause,
by the defendants; had survived for six months in the
Intensive Care Unit of a New Orleans hospital, drifting
in and out of a coma; had authorized his attorney to file
a § 1983 damages action against the defendants during
a conversation while in the hospital, and that suit was
promptly filed; had incurred hospital and medical charges
of more than $150,000 because of extraordinary efforts
made to save his life; had executed a valid will leaving
his residuary estate to an orphaned nephew for the latter’s
college education; but had not been survived by a spouse,
child, parent or sibling; even then, under Petitioner’s view
of the applicable law, Shaw’s § 1983 damage suit would
abate. The anticipated bequest to his nephew, and the
nephew’s college education, might vanish. And if the
estate were insufficient, the hospital and doctors might
38
have no way of being paid for their services. But the
point is not whether a particular kind of potential claim
ant with a particular kind of loss exists; violations of
constitutional rights harm interests shared by everyone.
The most serious consequence of abatement, for § 1983
purposes, is that defendants might escape any liability for
their unconstitutional actions unless the United States
brought criminal charges against them.
We respectfully submit that these facts are neither
far-fetched nor materially different from the case at bar.
Clay Shaw brought this action before his death, alleging
that the defendants (including Petitioner) conspired to
deprive him of his constitutional rights. He alleged that be
cause of the defendants’ actions he was required to spend
considerable sums defending himself against groundless
prosecutions on a charge of seeking to murder President
John F. Kennedy. He did execute a valid will naming a
residuary legatee, and he did die without being survived
by a spouse, child, parent, or sibling. Surely there is no
better reason for abating Shaw’s attempt to vindicate
his constitutional rights under these circumstances than
there would be if he had died from a beating allegedly
administered by the defendants. As a matter of federal
policy it is equally important in the former instance that
the action survive, since federal judicial intervention to
halt ongoing state proceedings such as those initiated by
defendant Garrison is so rarely available. Younger v.
Harris, supra; Samuels v. Mackell, supra; Shaw v. Gar
rison, supra, 293 F. Supp. 937 (E.D. La.), aff’d 393 U.S.
220 (1968).
Petitioner also suggests that the courts below erred in
failing to adopt, as the federal common law to be applied
in this case, various federal survival statutes in other
fields which are similar to Louisiana’s (Pet. Br. at 22).
In this respect, Petitioner’s argument at least addresses
39
the proper question in the case. However, once again we
believe that consideration of the purposes of the federal
Civil Rights Acts dictates affirmance of the judgment
below.
It is by no means self-evident that the survival pro
visions of the Federal Employers Liability Act, the Long
shoremen’s and Harbor Workers’ Compensation Act, and
the Death on the High Seas Act, should be applied in
federal civil rights cases. In Complaint of Cambria S.S.
Co., 505 F.2d 517 (6th Cir. 1974), cert, denied, 420 U.S.
975 (1975), cited by Petitioner,39 the court did hold that
neither a decedent’s estate nor a non-dependent brother
could bring the wrongful death admiralty action which
this Court created in Moragne v. States Marine Lines,
supra. However, the Sixth Circuit expressly rejected the
argument that it should “simply borrow the schedule of
beneficiaries from the Death on the High Seas Act.” In
stead, the court “ endeavored . . . to develop a uniform
body of federal law, neither borrowing automatically from
federal statutory provisions, nor applying any particular
state law.” Id., 505 F.2d at 521. The court reviewed the
holdings in Moragne and Sea-Land Services v. Gaudet,
414 U.S. 573 (1974), and concluded that “ the liberal and
humanitarian character of maritime proceedings as ex
pressed in Moragne and Gaudet, supra, contemplates solici
tude for dependents, not inanimate estates.” Id. at 523.
Similarly, the court said, “ [t]he mere accident of blood
relationship with nothing more does not itself call for
that special solicitude which the maritime law holds for
those injured within its jurisdiction.” Id. at 525. The
Sixth Circuit declined to permit the estate to sue, as
would have been permitted by some state laws, because
this “ fundamentally punitive approach is inconsistent with
the expressed compensatory philosophy of the maritime
law.” Id. at 522.
39 Pet. Br. at 24.
40
This approach leads to different results in the instant
case. As we have previously noted, the federal Civil
Rights Acts have a twofold purpose: compensation for
the victim and deterrence/punishment for the wrongdoer.
These statutes are consistent with the common law tradi
tion authorizing the award of punitive damages for of
ficial misconduct. See pp. 32-33 supra. There is no rea
son to cut off the right of a decedent’s estate to maintain
an action under these statutes just because the plaintiff
is survived by no dependent beneficiaries. Furthermore,
the loss-shifting rationale of tort and maritime law is
designed to shift the burden of economic inquiry for negli
gence (or unseaworthiness) in an area of activity which
is itself legal, and in which accidents and injury may,
unfortunately, be expected to occur with regularity.40 The
goal of the federal Civil Rights Act, however, is to assure
that unconstitutional conduct (itself clearly unlawful)
does not occur at all, and that individuals injured by its
occurrence are compensated. These ends are ill-served
by application of Louisiana’s survival statute to this ac
tion, and the courts below acted properly in allowing the
suit to continue with the substitution of Shaw’s executor
as a plaintiff.
40 See note 33 supra,.
41
CONCLUSION
For the foregoing reasons, amicus respectfully submits
that the judgment below should be affirmed.
Respectfully submitted,
C harles A. Ban e
T h o m as D. Barr
Co-Chairmen
R obert A. M u rph y
R ichard S. K o h n
W il l ia m E. Caldw ell
N orm an J. C h a c h k in
Staff Attorneys
L aw yers ’ Co m m ittee for
Civil R ights U nder L a w
733 - 15th Street, N.W.
Suite 520
Washington, D.C. 20005
Attorneys for Amicus Curiae
4