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Friday, June 01, 2018

Defending Qualified Immunity (SCOTUS Term)

Thanks Howard for inviting me back to blog this month on the end of the Supreme Court's OT 2017 Term. There are a number of big administrative law (my field) cases on the docket, including the constitutional challenge to the appointment of administrative law judges at the SEC. (If I have time, I also hope to blog a bit about the narrative(s) scholars and commentators have attempted to craft regarding Justice Gorsuch and his first full year on the Court.)

In my first post, however, I wanted to flag a draft of a new essay Aaron Nielson and I just posted to SSRN entitled A Qualified Defense of Qualified Immunity. This essay is part of a terrific annual federal courts issue on qualified immunity that the Notre Dame Law Review will be publishing later this year.

In this essay, we respond to some of the recent attacks on qualified immunity—the doctrine that shields a government actor from civil suit for monetary damages unless the government official violates “clearly established law.” In particular, we respond to Will Baude’s argument that qualified immunity finds no support in positive law and Joanna Schwartz’s important empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy. (Howard also has a nice Jotwell review of Schwartz's latest article.) We conclude with some suggestions for reform that draw on our prior empirical work on qualified immunity in the circuit courts.

The draft of our paper is available here, and comments are definitely welcome. Qualified immunity is a large part of the Supreme Court's docket (or at least its shadow docket), and it will be interesting to see whether the Court entertains these invitations to rethink the doctrine in the near future. As Aaron and I explain in our article, we largely see these reform efforts as better addressed to Congress than the Court in light of statutory stare decisis.

Posted by Chris Walker on June 1, 2018 at 01:40 PM in 2018 End of Term | Permalink


This is an impressive article, and I think I agree with you that if statutory stare decisis is applied at normal strength, Harlow should survive. I guess I would make two and a half comments, only the latter one and a half of which are interesting. The first is that, like a lot of people, I find statutory stare decisis a singularly unpersuasive doctrine, so some sketchy defense of it would make the article much more convincing for me, or less inclined to reject the whole thing out of hand because you've assumed a premise I think is obviously wrong. You might think it a given that statutory stare decisis will be around when and if the Court considers overruling qualified immunity, but I actually think it quite possible that doubts about its correctness could cause the Court to apply it at less than its doctrinally prescribed strength, even if they don't openly say so.

The second point is that you say, relying on Erica John and Kimble, that statutory stare decisis applies even to "judicially created doctrines" that implement statutes and don't purport to interpret their text. As Alito's dissent in Kimble points out, this is a somewhat tendentious reading of the Court's statutory stare decisis precedents. Not too long ago, the Court said in Leegin that statutory stare decisis "is not as significant" when interpreting the Sherman Act because the Court has treated the Sherman Act as a common-law statute, and that basically stare decisis is as strong in a Sherman Act case as it is in a federal common law case. I don't know that the Court has treated 1983 as a common-law statute for all purposes--I take it that Monroe purports to be about what "under color of law" means"--and 1983 may well give courts a little more textual direction in some respects than the Sherman Act does. But Harlow and its predecessors certainly look like common-law decisions about common-law immunities; Harlow's move to the objective standard especially looks like a common law move, as opposed to a mere description of nineteenth-century defenses. So I don't know that even existing doctrine requires an especially strong justification for overruling Harlow et al.

My last half point is that you might say, in response to the above, that the common-law-statute exception to statutory stare decisis depends on what kind of common-law statute you're talking about. The Sherman Act, the Court has always said, authorizes judicial common lawmaking, while 1983 may only call for courts to analyze the common law of 1871. I think this is a predicating assumption of your article (as well as Will's), to the point that you get a little defensive about citing 1890s immunity precedents.

Of this I would say, first, that Harlow, unlike the decisions that first read qualified immunity into 1983, does not remotely purport to defend the move to objective immunity in terms of 1871 common law, but rather gives a series of purely policy reasons and observations about the practice of 1983 suits in 1980s federal courts. This not only suggests, I would say, that Harlow's specific move to an objective standard is more vulnerable to overruling than the ordinary statutory interpretation, but also suggests that the whole assumption that 1983 is to be read against the backdrop of 1871 immunities is mistaken; at least it indicates that that hasn't been the Court's assumption and that the Court has felt free to make new 1983 immunity doctrine in light of contemporary realities. Second, I would say that I just don't see what the basis is for assuming that 1983 freezes common-law defenses roughly as they existed in 1871. I imagine that traditional tort defenses like consent, self-defense, incapacity, and duress are defenses to 1983 claims, and it would really surprise me if, for example, in deciding a 1983 suit for rape against a prison guard, courts applied 1871 consent law rather than today's consent law, supposing they materially differed.

Posted by: Asher Steinberg | Jun 2, 2018 4:59:50 PM

Thanks Asher for the comments, which we'll address more squarely in next draft (though this was supposed to be a short essay, so I don't think we'll try to defend the Court's current approach to statutory stare decisis!).

Your second set of comments remind me a lot of another response to Baude's article that's worth a read: Hillel Y. Levin & Michael Lewis Wells, Qualified Immunity and Statutory Interpretation: A Response to William Baude, Calif. L. Rev. Online (forthcoming), https://ssrn.com/abstract=3131242.

Posted by: Chris Walker | Jun 4, 2018 10:47:59 AM

Yes, someone recommended it to me after posting this comment and I found its description of the Court's precedents in this area pretty convincing.

Posted by: Asher Steinberg | Jun 4, 2018 11:12:56 AM

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