Resolving the Qualified Immunity Dilemma: Constitutional Tort Claims for Nominal Damages
James E. Pfander
Northwestern University School of Law
April 19, 2011
Columbia Law Review, Forthcoming
Northwestern Public Law Research Paper No. 11-41
Northwestern Law & Econ Research Paper No. 11-10
Scholars have criticized the Court’s qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question.
This essay suggests that constitutional tort claimants should be permitted to avoid the qualified immunity defense by pursuing claims for nominal damages alone. Such nominal claims have a lengthy pedigree, both as a common law analog to the declaratory judgment, and as a remedy for constitutional violations. Because they do not threaten to impose personal liability on official defendants, nominal claims should not give rise to a qualified immunity defense. By seeking only nominal relief, litigants could secure the vindication of their constitutional rights in cases where legal uncertainty might otherwise lead to a dismissal. Such a regime would advance the acknowledged interest in maintaining a vibrant body of constitutional law without threatening to impose ruinous liability on the officials named in the complaint.
Number of Pages in PDF File: 44
Keywords: Qualified immunity, constitutional torts, nominal damages
JEL Classification: K10, K13, K30, K39working papers series
Date posted: March 27, 2011 ; Last revised: August 13, 2011
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