Like Professor Struve, I would welcome courts’ adoption of a rigorous analytical approach to regulating the conditions under which pretrial detainees and convicted prisoners are confined. The purpose of this Response is to highlight some narrow concerns I have about the feasibility of her proposals, as well as to note my broader analytical objections to how Struve frames her intervention. Most critically, I fear that Struve’s solution does not directly address the conditions of confinement experienced by detainees, but instead bears indirectly on these conditions by focusing on the circumstances under which individual defendants are held liable in damages for specific abuses of detainees.
Volume 161 Issue 1 2013 Response