Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms
122 Yale L.J. 1024 (2013).
This Note is about the practice of conditioning recovery for violations of prisoners’ intangible constitutional rights, like First Amendment petition rights, upon a showing of physical injury. It argues that the prior physical injury requirement of the Prison Litigation Reform Act is unconstitutional as applied to petition violations because it arbitrarily impairs prisoners’ right to access the courts and, in doing so, enables retaliation against prisoner litigants to go unchecked. This Note outlines a theoretical portrait of petition violations as threefold structural harms, comprising distinct harms to plaintiffs, to the public, and to the courts as institutions. It uses that portrait to intervene in a doctrinal debate over the nature of the right to petition and to illuminate flaws in contemporary First Amendment doctrine both within and outside the prison context.