Toolkit · Constitutional

The Civil Rights Litigation Toolkit

42 U.S.C. § 1983

Type
Toolkit
Jurisdiction
National
Date
2025-07-11
Topic
Constitutional

A resource map for constitutional tort practice, organized around the twelve places these cases actually break. It covers Section 1983 as a remedial vehicle rather than a source of rights, the state action tests that decide when private conduct counts, the claim catalog across the Fourth, Eighth, and Fourteenth Amendments and the First Amendment retaliation line, the defendant architecture including Monell and its four routes, the absolute and qualified immunities and the procedural machinery that makes qualified immunity decisive, the four procedural traps that end more cases than the merits do, the discovery fights over video and personnel files, the damages and fee-shifting system that makes the practice economically possible, the Bivens collapse on the federal side, the state civil rights statutes that eliminate qualified immunity, and structural reform litigation and its standing problem. Each pillar gives the governing doctrine, the anchor authority, the trap that catches practitioners, and links into the UpLaw guides, articles, and checklists that develop it. It closes with an authority shelf, a records-request appendix, and a first-week triage sequence.

The Civil Rights Litigation Toolkit

Constitutional > Civil Rights | Published 11 July 2025 - Updated 20 June 2026 | UpLaw - uplaw.us

Section 1983 does not create rights. It carries them. Every case therefore has two independent halves — the constitutional question, governed by the doctrine of whichever clause is in play, and the § 1983 question, which is about defendants, immunities, and procedure. Lawyers who are strong on one half and weak on the other lose cases they should win, and the losses almost always come from the second half.

Keywords: § 1983, state action, Monell, failure to train, qualified immunity, Graham, deliberate indifference, DeShaney, retaliation, Heck, PLRA, notice of claim, § 1988, Bivens, state civil rights acts

How to read this toolkit

This is a resource map, not a treatise. It walks twelve pillars of civil rights practice. Under each you get the governing doctrine in plain terms, the anchor authority, the trap that catches people, and the UpLaw documents that develop it.

Four ground rules first.

One: the specific provision governs. Where a particular constitutional clause covers the conduct, the claim is analyzed under that clause, not under generalized substantive due process. Graham v. Connor, 490 U.S. 386, 395 (1989). A complaint invoking four amendments at once has not done this work.

Two: the defendant architecture is the case. Individual capacity, official capacity, municipality, arm of the state, private contractor — each has a different immunity posture, a different damages ceiling, and a different discovery burden. Decide this before drafting.

Three: four procedural traps end more of these cases than the merits. The borrowed limitations period, the state notice-of-claim deadline, the Heck bar, and PLRA exhaustion. Screen all four at intake.

Four: the evidence is on a deletion schedule. Body camera footage, dispatch audio, and jail video are held under retention policies measured in weeks. A preservation demand in week one is worth more than any motion filed in month eight.

Start here for the doctrinal treatment: Section 1983 Litigation: A Comprehensive Guide to Constitutional Tort Claims. For the doctrine that decides the most cases: Qualified Immunity and the Clearly Established Right. For the operational sequence: Bringing a Section 1983 Civil Rights Claim: A Practical Checklist.

Our running matters. Marcus Ellery (fictional) was tased at a traffic stop by Officer Dale Brunner (fictional) of the fictional City of Halberton. Rosalind Vance (fictional), a pretrial detainee, was denied insulin for four days. Theo Marchetti (fictional), a county inspector, was fired after testifying at a zoning hearing.

Pillar 1 — The statute as a vehicle

Doctrine. 42 U.S.C. § 1983 creates a cause of action against any "person" who, under color of state law, deprives another of federal rights. Two elements: state action and deprivation of a federal right. No exhaustion of state remedies is required, and state courts have concurrent jurisdiction.

Anchors. Monroe v. Pape, 365 U.S. 167 (1961) (under color of law includes conduct violating state law; no exhaustion); Felder v. Casey, 487 U.S. 131 (1988) (state notice-of-claim statutes cannot be applied to § 1983 claims in state court).

Trap. Federal statutory rights are enforceable through § 1983 only where Congress created an individually enforceable right and did not foreclose the remedy. Run Gonzaga University v. Doe, 536 U.S. 273 (2002), and Health & Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (2023), before assuming a Spending Clause statute is enforceable.

Go deeper: Section 1983 Litigation: A Comprehensive Guide · Federal Civil Litigation: A Roadmap and Resource Guide

Pillar 2 — State action

Doctrine. Four tests decide when private conduct is attributed to the state: public function (powers traditionally exclusively reserved to the state), joint action or entwinement, state compulsion, and close nexus.

Anchors. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288 (2001); West v. Atkins, 487 U.S. 42 (1988) (contract prison physician acts under color of law); Manhattan Community Access Corp. v. Halleck, 587 U.S. 802 (2019) (narrow public function test).

Trap. Regulation and funding are not enough. Rendell-Baker v. Kohn, 457 U.S. 830 (1982). The working line is delegation of a constitutional obligation (contract medical care in a jail — state action) versus mere regulation of a private business (a heavily regulated utility — not state action).

Trap, second order. Off-duty officers. The question is whether the officer invoked or purported to exercise official authority. Badge, identification as police, and department equipment are the markers.

Go deeper: Section 1983 Litigation: A Comprehensive Guide · Section 230, the IP Carve-Out, and Platform Liability for User-Generated Infringement

Pillar 3 — Fourth Amendment claims

Doctrine. Warrantless arrest requires probable cause. Force during a seizure is judged by objective reasonableness from the perspective of a reasonable officer on the scene, weighing the severity of the offense, the immediacy of the threat, and active resistance or flight. Deadly force requires probable cause to believe the suspect poses a threat of serious physical harm.

Anchors. Graham v. Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471 U.S. 1 (1985); Scott v. Harris, 550 U.S. 372 (2007) (video blatantly contradicting the plaintiff's account); Franks v. Delaware, 438 U.S. 154 (1978) (false warrant affidavits); Thompson v. Clark, 596 U.S. 36 (2022) (malicious prosecution favorable termination requires only no conviction); Chiaverini v. City of Napoleon, 602 U.S. 556 (2024) (charge-specific probable cause).

Trap. Scott v. Harris is invoked constantly and applied narrowly. Video that is ambiguous, partial, or shot from one angle does not "blatantly contradict" anything. Do not concede the point because footage exists; watch it frame by frame with an expert.

Trap, second order. Failure to intervene is chronically omitted from complaints. An officer with a realistic opportunity to prevent excessive force who does not is liable in most circuits.

Go deeper: Bringing a Section 1983 Civil Rights Claim: A Practical Checklist · Getting Website Evidence Admitted: A Practical Authentication Checklist

Pillar 4 — Confinement claims

Doctrine. Convicted prisoners are governed by the Eighth Amendment's deliberate indifference standard, which has an objective prong and a subjective prong requiring actual awareness of a substantial risk. Pretrial detainees are governed by the Fourteenth Amendment; excessive force claims by detainees require only objective unreasonableness.

Anchors. Estelle v. Gamble, 429 U.S. 97 (1976); Farmer v. Brennan, 511 U.S. 825 (1994); Bell v. Wolfish, 441 U.S. 520 (1979); Kingsley v. Hendrickson, 576 U.S. 389 (2015).

Trap. The circuit split on whether Kingsley extends to detainee medical care and conditions claims is the most important open question in detention litigation. Several circuits apply the objective standard; others retain Farmer's subjective prong. It decides Rosalind Vance's insulin case. Check the circuit first, then build the record to satisfy the harder standard anyway.

Trap, second order. Private medical contractors are held to Monell's policy-or-custom requirement in most circuits — so proving the nurse was deliberately indifferent does not, by itself, reach the contractor.

Go deeper: Section 1983 Litigation: A Comprehensive Guide · Healthcare Compliance: A Comprehensive Guide to HIPAA, Stark, and the Anti-Kickback Statute

Pillar 5 — Due process and the no-duty rule

Doctrine. Procedural due process asks whether a protected liberty or property interest existed (a question of state law) and what process was due (Mathews balancing). Substantive due process reaches executive action that shocks the conscience. And the Due Process Clause imposes no affirmative duty to protect against private violence.

Anchors. Board of Regents v. Roth, 408 U.S. 564 (1972); Mathews v. Eldridge, 424 U.S. 319 (1976); County of Sacramento v. Lewis, 523 U.S. 833 (1998); DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989); Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).

Trap. The Parratt/Hudson doctrine — where a deprivation results from random and unauthorized conduct the state could not predict, an adequate post-deprivation state remedy satisfies due process. Parratt v. Taylor, 451 U.S. 527 (1981); Hudson v. Palmer, 468 U.S. 517 (1984); limited by Zinermon v. Burch, 494 U.S. 113 (1990). Defense counsel should screen every property-deprivation claim against it. Plaintiffs should plead around it by showing the deprivation followed an established procedure.

Trap, second order. The DeShaney exceptions — special relationship and state-created danger — are formulated differently in every circuit and are not recognized uniformly. Get the circuit's formulation before pleading.

Go deeper: Administrative Law: A Comprehensive Guide to Agency Action and Judicial Review · Challenging Agency Action Under the APA: A Practical Checklist

Pillar 6 — First Amendment retaliation

Doctrine. Protected activity, an adverse action that would deter a person of ordinary firmness, and causation — with a burden shift to the defendant to show it would have acted anyway. Public employee speech is protected only if made as a citizen on a matter of public concern and only after Pickering balancing; speech pursuant to official duties is unprotected.

Anchors. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977); Pickering v. Board of Education, 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983); Garcetti v. Ceballos, 547 U.S. 410 (2006); Lane v. Franks, 573 U.S. 228 (2014); Nieves v. Bartlett, 587 U.S. 391 (2019); Gonzalez v. Trevino, 602 U.S. 653 (2024).

Trap. Garcetti is the whole ballgame for public employees. Theo Marchetti's zoning-hearing testimony is protected only if it was outside his ordinary job duties — Lane v. Franks protects truthful sworn testimony as citizen speech, but only where testifying was not itself part of the job.

Trap, second order. For retaliatory arrest, probable cause generally defeats the claim under Nieves, subject to the narrow objective-evidence exception that Gonzalez v. Trevino declined to read too demandingly.

Go deeper: Section 1983 Litigation: A Comprehensive Guide · Employment Discrimination Law: A Comprehensive Guide · The Whistleblower and Retaliation Toolkit

Pillar 7 — Defendants and Monell

Doctrine. Municipalities are suable "persons" but only for deprivations caused by an official policy or custom — no respondeat superior. Four routes: express policy, final policymaker decision, widespread custom, and failure to train/supervise/discipline amounting to deliberate indifference. Municipalities have no qualified immunity and no punitive damages exposure.

Anchors. Monell v. Department of Social Services, 436 U.S. 658 (1978); Owen v. City of Independence, 445 U.S. 622 (1980); City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); City of Canton v. Harris, 489 U.S. 378 (1989); Connick v. Thompson, 563 U.S. 51 (2011); Board of County Commissioners v. Brown, 520 U.S. 397 (1997).

Trap. Failure-to-train claims normally require a pattern. Connick left the single-incident theory alive only in the narrow "obvious need" scenario. Plaintiffs who plead one incident and call it a training failure lose on the motion.

Trap, second order. Plead Monell at the outset. Adding it after the individual claim dies on immunity grounds is usually time-barred and always resisted. And expect a motion to bifurcate and stay Monell discovery — a stay that lasts through the individual claim's resolution effectively kills the theory.

Go deeper: Bringing a Section 1983 Civil Rights Claim: A Practical Checklist · Drafting a Federal Civil Complaint: A Practical Checklist

Pillar 8 — Immunities

Doctrine. Absolute immunity for judges (judicial acts), prosecutors (advocacy functions), legislators (legislative acts), and witnesses (testimony). Qualified immunity for everyone else performing discretionary functions, unless the right was clearly established with particularity.

Anchors. Stump v. Sparkman, 435 U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976); Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Bogan v. Scott-Harris, 523 U.S. 44 (1998); Rehberg v. Paulk, 566 U.S. 356 (2012); Harlow v. Fitzgerald, 457 U.S. 800 (1982); Anderson v. Creighton, 483 U.S. 635 (1987); Ashcroft v. al-Kidd, 563 U.S. 731 (2011); Pearson v. Callahan, 555 U.S. 223 (2009); Hope v. Pelzer, 536 U.S. 730 (2002); Taylor v. Riojas, 592 U.S. 7 (2020).

Trap. Arguing clearly-established law at the wrong altitude. "The Fourth Amendment prohibits excessive force" is clearly established and useless. Find the case with materially similar facts, in the Supreme Court or the circuit, decided before the conduct — or build the Hope/Taylor obviousness argument deliberately.

Trap, second order. Qualified immunity protects discretionary functions only. Ministerial acts fall outside it, and plaintiffs underuse the distinction.

Go deeper: Qualified Immunity and the Clearly Established Right · Section 1983 Litigation: A Comprehensive Guide

Pillar 9 — The four procedural traps

Doctrine. (1) The limitations period is borrowed from the forum state's personal injury statute; accrual is federal. (2) Supplemental state claims are subject to state tort claims act notice deadlines, frequently 90 days. (3) A claim that would necessarily imply the invalidity of an outstanding conviction is barred. (4) Prisoners must properly exhaust available administrative remedies.

Anchors. Wilson v. Garcia, 471 U.S. 261 (1985); Owens v. Okure, 488 U.S. 235 (1989); Wallace v. Kato, 549 U.S. 384 (2007); McDonough v. Smith, 588 U.S. 109 (2019); Heck v. Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475 (1973); 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81 (2006); Ross v. Blake, 578 U.S. 632 (2016); Jones v. Bock, 549 U.S. 199 (2007).

Trap. The notice-of-claim deadline is the most common malpractice event in this practice. It runs from the incident, it differs by entity, and it is frequently jurisdictional. Serve notice on every conceivable governmental defendant in the first month, before you have decided whether to sue.

Trap, second order. Doe defendants and relation back. Lack of knowledge of a defendant's name is generally not a "mistake" for Rule 15(c) purposes after Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010). Identify individuals via records requests before the period runs.

Go deeper: Bringing a Section 1983 Civil Rights Claim: A Practical Checklist · Federal Civil Litigation Filings: A Comprehensive Guide from Complaint to Appeal

Pillar 10 — Discovery and the interlocutory interruption

Doctrine. Because qualified immunity is an immunity from suit, denial is immediately appealable and discovery is frequently stayed pending resolution. The plaintiff's essential evidence is largely in the defendant's exclusive possession.

Anchors. Mitchell v. Forsyth, 472 U.S. 511 (1985); Johnson v. Jones, 515 U.S. 304 (1995) (no interlocutory appeal of evidence sufficiency); Plumhoff v. Rickard, 572 U.S. 765 (2014); Harlow, 457 U.S. at 818 (discovery stay); Garrity v. New Jersey, 385 U.S. 493 (1967) (compelled statements).

Trap. A blanket discovery stay. Oppose it and propose phased discovery limited to the facts bearing on immunity. A stay that runs through an interlocutory appeal can add two years and destroy witness memory and document availability.

Trap, second order. Personnel files. Expect a blanket objection grounded in state confidentiality statutes and the law enforcement privilege. Negotiate a workable protective order early; the order is what buys the access.

Go deeper: Federal Civil Discovery: Mastering the Tools, Rules, and Pitfalls · The Federal Discovery Toolkit: A Roadmap from Rule 26(f) to Sanctions · Moving to Compel Discovery and Seeking Rule 37 Sanctions: A Practical Checklist

Pillar 11 — Damages and fees

Doctrine. Compensatory damages on ordinary tort principles, not on the abstract value of the right. Nominal damages where a violation is proved without injury, and they suffice to redress a completed violation. Punitive damages against individuals for reckless or callous indifference, never against municipalities. Attorney's fees to a prevailing plaintiff as a matter of course under § 1988.

Anchors. Memphis Community School District v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978); Uzuegbunam v. Preczewski, 592 U.S. 279 (2021); Smith v. Wade, 461 U.S. 30 (1983); 42 U.S.C. § 1988; Hensley v. Eckerhart, 461 U.S. 424 (1983); Perdue v. Kenny A., 559 U.S. 542 (2010); Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001); Farrar v. Hobby, 506 U.S. 103 (1992).

Trap. Rule 68. Because § 1988 defines fees as part of costs, an offer of judgment cuts off post-offer attorney's fees in § 1983 cases. Marek v. Chesny, 473 U.S. 1 (1985). It is the most powerful defense tool in this area and is chronically underused. Plaintiffs must evaluate any offer against accrued lodestar plus projected fees, not against the damages number.

Trap, second order. Fee waivers in settlement are permitted, Evans v. Jeff D., 475 U.S. 717 (1986), and create an obvious conflict between client and counsel. Handle it under the applicable professional conduct rules and document the client's informed consent.

Go deeper: The Litigation Damages Toolkit: Valuing and Proving Money Awards · Legal Ethics and Professional Responsibility: A Comprehensive Guide to the Model Rules · Drafting and Closing a Settlement Agreement: A Practical Checklist

Pillar 12 — Federal officers, state statutes, and structural reform

Doctrine. Three things sit outside the ordinary § 1983 case.

Federal officers. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), has been narrowed nearly to its original facts. Ziglar v. Abbasi, 582 U.S. 120 (2017) (new contexts disfavored); Egbert v. Boule, 596 U.S. 482 (2022) ("even a single reason to pause" defeats the remedy). Look to the Federal Tort Claims Act instead.

State civil rights statutes. Colorado, Colo. Rev. Stat. § 13-21-131, and New Mexico, N.M. Stat. Ann. §§ 41-4A-1 to -13, create state causes of action that expressly exclude qualified immunity. Where such a statute exists, it may be the primary claim, filed in state court, structured to resist removal. This is the most consequential development in the field in a decade.

Structural reform. Injunctive relief against ongoing practices faces a standing problem, not an immunity problem. City of Los Angeles v. Lyons, 461 U.S. 95 (1983), held that a plaintiff choked by police lacked standing to enjoin the practice absent a showing he would be subjected to it again. Lyons limits reform litigation more than qualified immunity does.

Trap. Assuming the federal claim is the main event. In a state with a civil rights statute, filing everything in federal court voluntarily enters the forum where the defense is strongest.

Go deeper: Suing the Government: A Guide to Damages in Administrative and Public Entity Litigation · Personal Jurisdiction, Venue, and Forum Selection: A Comprehensive Guide

The authority shelf

The statute and its reach

  • 42 U.S.C. §§ 1983, 1985, 1986, 1988
  • Monroe v. Pape, 365 U.S. 167 (1961)
  • Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989)
  • Felder v. Casey, 487 U.S. 131 (1988)
  • Health & Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (2023)

State action

  • Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)
  • West v. Atkins, 487 U.S. 42 (1988)
  • Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288 (2001)
  • Manhattan Community Access Corp. v. Halleck, 587 U.S. 802 (2019)

Substantive claims

  • Graham v. Connor, 490 U.S. 386 (1989)
  • Tennessee v. Garner, 471 U.S. 1 (1985)
  • Farmer v. Brennan, 511 U.S. 825 (1994)
  • Kingsley v. Hendrickson, 576 U.S. 389 (2015)
  • DeShaney v. Winnebago County, 489 U.S. 189 (1989)
  • Mathews v. Eldridge, 424 U.S. 319 (1976)
  • Garcetti v. Ceballos, 547 U.S. 410 (2006)
  • Nieves v. Bartlett, 587 U.S. 391 (2019)
  • Thompson v. Clark, 596 U.S. 36 (2022)

Defendants and immunities

  • Monell v. Department of Social Services, 436 U.S. 658 (1978)
  • City of Canton v. Harris, 489 U.S. 378 (1989)
  • Connick v. Thompson, 563 U.S. 51 (2011)
  • Harlow v. Fitzgerald, 457 U.S. 800 (1982)
  • Anderson v. Creighton, 483 U.S. 635 (1987)
  • Pearson v. Callahan, 555 U.S. 223 (2009)
  • Hope v. Pelzer, 536 U.S. 730 (2002)
  • Taylor v. Riojas, 592 U.S. 7 (2020)
  • Imbler v. Pachtman, 424 U.S. 409 (1976)

Procedure and remedies

  • Heck v. Humphrey, 512 U.S. 477 (1994)
  • Wallace v. Kato, 549 U.S. 384 (2007)
  • Woodford v. Ngo, 548 U.S. 81 (2006)
  • Mitchell v. Forsyth, 472 U.S. 511 (1985)
  • Marek v. Chesny, 473 U.S. 1 (1985)
  • City of Los Angeles v. Lyons, 461 U.S. 95 (1983)

Secondary sources

  • Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses (4th ed. & Supp.) — the practitioner standard
  • Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. & Supp.)
  • William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018)
  • Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017)
  • Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014)
  • John C. Jeffries, Jr., Reconceptualizing the Right to Sue Under Section 1983, 99 Va. L. Rev. 259 (2013)

Appendix A — The records-request campaign

Public records acts are the cheapest and fastest investigative tool in this practice, and they operate before any complaint is filed. Request, from each involved agency:

  1. All video — body worn, in-car, fixed facility, and booking — plus the retention schedule and any hold placed on it.
  2. CAD and dispatch logs and radio traffic recordings.
  3. Incident, supplemental, and use-of-force reports.
  4. Policies and general orders in effect on the incident date, plus any revision since.
  5. Training curricula and certification records for each involved officer on the relevant subject.
  6. Weapon or device download logs (taser deployment records, for example).
  7. Aggregate complaint data — complaints of the same type agency-wide, by year, with disposition.
  8. The officer's disciplinary history to the extent the state's law permits.
  9. Contracts with private providers (medical, security, transport).
  10. Insurance and risk pool documents where disclosable.

Expect exemptions — ongoing investigation, personnel privacy, security. Appeal the denials; the appeal record is itself useful, and in several states the fee-shifting provision makes a records suit self-funding. See Filing a FOIA Request and Appealing a Denial: A Practical Checklist.

Appendix B — First-week triage

Day 1. Interview the client and record the account. Compute the limitations period and every notice-of-claim deadline. Identify the specific constitutional provision.

Day 2. Send preservation demands to every agency. File public records requests in parallel.

Day 3. Photograph injuries; obtain medical records; identify and contact civilian witnesses before memories fade and video is deleted.

Day 4. Screen for Heck — pull every charging document and disposition. Screen for PLRA if the client is or was incarcerated.

Day 5. Map defendants and capacities. Identify the entity's status as arm of the state or political subdivision. Identify the final policymaker for the relevant function under state law.

Day 6. Do the clearly-established research and write the one-page memo naming the best precedent and the distinctions the defense will draw.

Day 7. Serve the notice of claim. Decide the forum, decide whether a state civil rights statute changes the structure, and model the economics including the fee exposure on both sides.

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