Should some older statutes be getting a radical makeover?

On Thursday last week, a Fifth Circuit panel released a decision on qualified immunity.  Judge Don Willett, a frequent critic of the doctrine, wrote for the majority … and then separately concurred with his own opinion, to lift up a recent piece by Professor Alex Reinert.  The article points out that Section 1983 — the primary civil rights cause of action by which private citizens sue state and local government officials for violating federal rights, and the primary vehicle for importing doctrine on qualified immunity — was passed in 1871 with a provision that “explicitly displace[d] common-law immunities.”  It’s just that that pivotal provision wasn’t pulled into the 1874 compilation of federal statutes that forms the basis of what we now know today as the U.S. Code.

This was hardly the 1874 compilation’s only screw-up.  I’ve also written recently about the mess in 1874, and the way it seemed to change the meaning of the 1845 statutory provision at the heart of some 2020 claims that state legislatures could just appoint their own presidential electors if they didn’t like the voters’ results.  (Said provision was recently amended in the Electoral Count Reform Act, rendering the 1874 adjustment thankfully less relevant going forward.)  Lots of other errors were found even at the time.

So — lawyers, law students, and faculty seeking federal circuit citation: there’s probably more gold in them hills.  If the statute you’re looking at has roots before 1874, might be worth double-checking whether the thing you’re reading actually resembles the thing Congress passed.