A Qualified Defense of Qualified Immunity
34 Pages Posted: 18 Jun 2018 Last revised: 15 Aug 2018
Date Written: June 1, 2018
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
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