The Neuroscience of Qualified Immunity

126 Dick. L. Rev. 769 (2022)

59 Pages Posted: 17 Jun 2022

See all articles by Gary S. Gildin

Gary S. Gildin

Pennsylvania State University, Dickinson Law

Date Written: Spring 2022

Abstract

Qualified immunity not only absolves public officials from accountability for the damages caused when they deprive a citizen of their constitutional rights; by virtue of companion doctrines shielding governmental entities from liability, conferral of immunity leaves the victim to bear the loss. Therefore, it is essential that the contours of immunity be carefully calibrated to align with its intended purposes.

The United States Supreme Court has continuously expanded immunity to protect the exercise of discretion where, albeit acting in violation of constitutional norms, the official could have reasonably believed their conduct was constitutional. This Article exposes the implicit assumptions as to the operation of the brain that underpin the evolution of the Court’s immunity jurisprudence. It then explains how the Court’s suppositions are refuted by recent findings in the field of neuroscience and proposes reforms that would harmonize immunity with the true workings of the minds of government officials.

Suggested Citation

Gildin, Gary S., The Neuroscience of Qualified Immunity (Spring 2022). 126 Dick. L. Rev. 769 (2022), Available at SSRN: https://ssrn.com/abstract=4130350

Gary S. Gildin (Contact Author)

Pennsylvania State University, Dickinson Law ( email )

150 S College St
Carlisle, PA 17013
United States

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