A Qualified Defense of Qualified Immunity

34 Pages Posted: 18 Jun 2018 Last revised: 19 Sep 2018

Aaron Nielson

Brigham Young University - J. Reuben Clark Law School

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: June 1, 2018

Abstract

In recent years, we have seen a growing call in the legal academy to revisit qualified immunity—the doctrine that shields a government actor from civil suit for monetary damages unless the government official violates “clearly established law.” On the doctrinal front, for instance, Will Baude argues that qualified immunity’s foundations are suspect as a matter of positive law. On the empirical front, Joanna Schwartz has done groundbreaking work at the district-court level that calls into question qualified immunity’s effect at shielding government officials from discovery and trial. This Essay responds to both sets of criticisms and provides a partial defense of the qualified immunity. Based on the authors’ prior empirical work on qualified immunity in the circuit courts, the Essay concludes with some recommendations on how the Supreme Court could improve the doctrine of qualified immunity to better ensure the doctrine advances its intended objectives.

Keywords: constitutional litigation, qualified immunity, stare decisis, Pearson, Saucier, reasongiving

Suggested Citation

Nielson, Aaron and Walker, Christopher Jay, A Qualified Defense of Qualified Immunity (June 1, 2018). Notre Dame Law Review, Vol. 93, pp. 1853-1885, 2018; BYU Law Research Paper No. 18-20; Ohio State Public Law Working Paper No. 447. Available at SSRN: https://ssrn.com/abstract=3188936

Aaron Nielson

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Christopher Jay Walker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-1898 (Phone)

HOME PAGE: http://www.chrisjwalker.com

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