Academic Journal
MAKING SECTION 1983 MALICIOUS-PROSECUTION SUITS WORK.
| Title: | MAKING SECTION 1983 MALICIOUS-PROSECUTION SUITS WORK. |
|---|---|
| Authors: | North, Harper A.1 |
| Source: | Virginia Law Review. Mar2024, Vol. 110 Issue 1, p207-242. 36p. |
| Abstract: | The Supreme Court can't seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, but lack of proper focus. The Court first endeavored to identify the proper constitutional source of a malicious-prosecution right, all the while failing to consider the more practical problems that make Section 1983 malicious-prosecution claims nearly impossible to win. The Court seemed to reverse its course in Thompson v. Clark, eschewing big constitutional questions in favor of a narrow, practical one. This Note applauds that turn in spirit. But it seems that the Court overcorrected by choosing too small of a question. This Note contributes the first postmortem of Thompson and finds that a year later, the lower courts look like nothing ever happened: almost every Section 1983 malicious-prosecution case since has been dismissed for reasons unrelated to Thompson's favorable-termination rule. What if instead of asking questions too big to be practically impactful, or too small to do much work on their own, we found the questions that are "just right"? This Note identifies these questions by analyzing remaining splits in the lower courts and where those splits overlap with the issues killing otherwise meritorious Section 1983 malicious-prosecution claims. By asking and answering the right questions, this Note constructs a version of Section 1983 malicious prosecution that could work in real life. [ABSTRACT FROM AUTHOR] |
| Subject Terms: | Malicious prosecution, Dismissal & nonsuit, Courts |
| Geographic Terms: | United States |
| Company/Entity: | United States. Supreme Court |
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| ISSN: | 00426601 |
| Database: | Business Source Complete |
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