Over at PrawfsBlawg this month, I’ll be contributing to their coverage of the end of the Term at the Supreme Court. They have assembled a great group of law professors to guest-blog for the month, so definitely bookmark the blog and check it out this month.
Here is my first contribution to the SCOTUS end-of-term coverage on defending qualified immunity:
Thanks Howard for inviting me back to blog this month on the end of 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.