Qualified Immunity and Statutory Interpretation: A Response to William Baude
California Law Review Online (Forthcoming)
27 Pages Posted: 28 Feb 2018
Date Written: February 27, 2018
In his article, Is Qualified Immunity Unlawful?, Professor Baude argues that the doctrine of qualified immunity under section 1983 is unlawful because the doctrine did not exist at the time section 1983 was enacted. We disagree. Section 1983 is a common law statute. Consequently, its meaning and application was not fixed at the time of original passage. In this article, we explain why.
Although we are sympathetic to Professor Baude’s implicit policy-based critique of the doctrine of qualified immunity, we believe his analysis is flawed. The better and more likely way to improve the doctrine is through the common law method.
Keywords: Section 1983, constitutional torts, government, constitutional rights, qualified immunity, statutory interpretation, common law statutes, originalist
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