Challenges in Substantive Due Process Litigation

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983.

This information underscores that, for the most part, substantive due process litigation in the federal courts is litigation under Section 1983. As a result, substantive due process litigation is subject to the doctrinal challenges that apply to Section 1983 litigation more generally. This Article takes stock of these challenges and develops an account of the intersection between substantive due process rights and Section 1983 litigation. It considers four challenges for civil rights plaintiffs common to many cases filed under Section 1983: standing to seek injunctive relief, the qualified immunity defense, the policy or custom requirement for municipal liability, and availability of attorneys’ fees under 42 U.S.C. § 1988.

Drawing on both quantitative and qualitative information from the dataset, this Article suggests that each of these areas also presents a challenge for plaintiffs seeking to vindicate substantive due process rights. Further, the vagueness and breadth of many substantive due process rights compounds the challenges presented by Section 1983 litigation in other contexts. This Article concludes by briefly considering the implications of its findings for lawyers, courts, and future researchers.