Qualified Immunity and Statutory Interpretation: A Response to William Baude

27 Pages Posted: 28 Feb 2018  

Hillel Y. Levin

University of Georgia School of Law

Michael Lewis Wells

University of Georgia School of Law

Date Written: February 27, 2018

Abstract

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

Suggested Citation

Levin, Hillel Y. and Wells, Michael Lewis, Qualified Immunity and Statutory Interpretation: A Response to William Baude (February 27, 2018). California Law Review Online (Forthcoming); University of Georgia School of Law Legal Studies Research Paper No. 2018-09. Available at SSRN: https://ssrn.com/abstract=3131242

Hillel Y. Levin (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

Michael Lewis Wells

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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