Sheldon Nahmod

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Over fifteen years ago, I argued in a prior edition of my section 1983 treatise that the second burden-shift part of the Mt. Healthy test, articulated by the Supreme Court in 1977, should go only to damages and not to liability. I also argued that this causation-in-fact rule should not be limited to Mt. Healthy-type First Amendment employment cases, but should apply to constitutional damages actions generally and equal protection cases in particular. I remain convinced that both aspects of this position are normatively sound, even if no longer good law, in light of the Court's end-of-the-millennium decision in Texas v. Lesage. My position is supported by the following: (1) the Court's 1978 procedural due process decision in Carey v. Piphus; (2) the Court's 1995 after-acquired evidence decision in McKennon v. Nashville Banner Publishing Co.; (3) causation-in-fact principles from tort law; and (4) the compensation and deterrence policies underlying section 1983.

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