As shown, ratification liability under § 1983 presents a number of difficulties. The elements of ratification, even for tort and contract law purposes, are narrow. Moreover, ratification liability is in fundamental tension with the strict causation requirement under § 1983. As a result, the courts have not resoundingly embraced ratification as a theory of § 1983 liability. In short, they have not treated Praprotnik as a clarion call for a new plaintiffs’ beachhead in civil rights law. Nevertheless, full respect for Praprotnik indicates that ratification, which by its nature involves post-event affirmance, should be a viable theory of § 1983 liability. Ratification is a well-recognized theory of liability in tort and contract law, which also require strict proof of causation. If ratification is good enough for those areas of law, it is also good enough for civil rights law.
Furthermore, there is no basis for the approach of the Fifth Circuit in limiting the application of ratification to “extreme factual situations.” A court should not refuse to hold an entity or supervisor liable for ratifying a routine unconstitutional arrest, and reserve ratification for an arrest that is instead “extremely” unconstitutional or outrageous, since all constitutional violations are probably “extreme” to the victims. Thus, ratification, as recognized and applied in both contract and tort law, is an appropriate mechanism for making sure that, under the law, plaintiffs are treated justly and defendants incur the rightful consequences of their conduct.
George M. Weaver,
Ratification as an Exception to the § 1983 Causation Requirement: Plaintiff’s Opportunity or Illusion?,
89 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol89/iss2/3