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Thursday, December 03, 2015

JOTWELL: Leong on Nielson & Walker on qualified immunity

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Nielson and Walker's The New Qualified Immunity (forthcoming S. Cal. L. Rev.), which explores how lower courts are and should apply the discretionary two-step approach to qualified immunity under Pearson. Both the article and Nancy's review essay are worth a read.

Posted by Howard Wasserman on December 3, 2015 at 01:38 PM in Article Spotlight, Howard Wasserman | Permalink


Now that I think about it a little more, I suppose the answer is "no, but ..." Lower courts, in my view at least, should not categorically reject what the Supreme Court has authorized. So if that was the reason given, I think it would be an error. That said, I don't see how it would be reversible error; it wouldn't change the judgment (though, per Richard Re, the "judgment" in these cases may be complicated ...). So formally, I don't think a lower court should simply reject something that the Supreme Court has authorized, but de facto, I think a lower court may have that ability. At least that is my tentative thinking. Great question.

Posted by: Aaron Nielson | Dec 3, 2015 5:53:18 PM

(By the way, I'm not saying a judge should say that, especially after the Supreme Court has blessed this form of "binding dicta." What I am saying is that if a judge did say that, it surely wouldn't be an independent basis for reversal. An insight of our paper, however, is that there can be substantive consequences of that procedural discretion.)

Posted by: Aaron Nielson | Dec 3, 2015 5:21:26 PM

Great question Asher. The answer is "yes, but ..." Some judges prefer not to answer unnecessary questions, especially unnecessary constitutional questions. And one of the Pearson factors is the general principle of constitutional avoidance. So a judge could say "I have decided not to decide unnecessary constitutional questions." But that use of discretion may have substantive consequences. After all, if judges who think that way also happen to have distinct substantive views on constitutional merits questions, the law will drift away from those distinct substantive views in favor of the substantive views of judges who are not reluctant to decide constitutional questions.

Posted by: Aaron Nielson | Dec 3, 2015 5:00:46 PM

You have a bad link to Leong's essay.

I'm curious if a sufficient reason to exercise discretion to decline to decide an unclear constitutional question would be "we don't believe in writing binding dicta."

Posted by: Asher Steinberg | Dec 3, 2015 2:34:51 PM

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