Rethinking the Order of Battle in Constitutional Torts: A Reply to John Jeffries

Abstract

This brief Reply to John Jeffries’ recent article in the Supreme Court Review develops two major themes. First, I invoke institutional, precedential, and doctrinal factors to argue that the merits-first approach in qualified immunity adjudication impels judges to define constitutional rights narrowly. Second, I consider the larger normative question of where constitutional rights should be articulated. Jeffries views alternative remedial contexts as coequal for law articulation purposes. My view, in contrast, is that the context in which law is articulated is will inherently shape the substance of the law that results, and so we should examine the unique characteristics of a particular context in deciding whether it is desirable for law to be clarified there.

Keywords: Constitutional Torts, Qualified Immunity, Rights, Remedies