Constitutional rights do not enforce themselves. The constitutional tort, generally taking the form of an action under either Section 1983 or Bivens, is one important vehicle for individuals to vindicate their constitutional rights. Jurists and civil rights scholars have documented the many barriers to relief under these two causes of action—official immunities, governmental immunities, and justiciability doctrines, to name a few.

Less attention has been given to the Supreme Court’s recent series of cases importing the elements of common-law torts into constitutional tort claims. Nor has recent scholarship examined Section 1988, which provides that if federal law is “deficient in the provisions necessary to furnish suitable remedies” in cases under Section 1983, courts may look to “the common law” of the forum state so long as it is “not inconsistent with the Constitution and laws of the United States.” Curiously, however, the Court has imported common-law tort elements into Section 1983 without mentioning Section 1988. The Court has thus never asked whether those elements are necessary to remedy a deficiency in—or even consistent with—federal law. Nor has the Court explained why only some Section 1983 plaintiffs must prove the elements of a common-law tort and others need not.

This Note interprets Section 1988 and recenters its role in the law of constitutional torts. First, it critiques the Court’s methodology in determining the elements of Section 1983 constitutional tort claims in a string of recent decisions. Second, it interprets the text of Section 1988 and contends that it should apply beyond its current narrow role, which is largely limited to survivorship and statutes of limitations. Finally, it applies Section 1988 to the elements and immunities problems that have long plagued constitutional tort law, arguing that the statute forecloses the Court’s wholesale importation of common-law tort elements into Section 1983 claims.

* J.D., Stanford Law School, 2025. I am forever indebted to Pam Karlan for her guidance, mentorship, and wit throughout the writing of this Note, as well as for exposing me to the world of civil rights litigation. I am also deeply grateful to Easha Anand, Morgan Weiland, and Alex Yudelson for their encouragement and insightful comments. Lastly, I thank the tireless editors of the Stanford Law Review, especially Claire Dinshaw, Danny Sharp, Hana Ryan, as well as Sarah Bowen, Sara Carrillo, Hannah Dahleen, Harry Sage, Manon Theodoly, Arjun Ravi, Abigail Wolfe, Isabella Yepes, and Jessica Zhu.