A Qualified Defense of Qualified Immunity

Nielson, Aaron L & Walker, Christopher J

Journal: Notre Dame Law Review

Volume: 93

First Page: 1853

Year: 2018

Bluebook Citation: 93 NOTRE DAME L. REV. 1853 (2018)

Author: Christopher Jay Walker: all 28 publications


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  • 2022McKinney v. City of Middletown 2d Cir.
  • 2022Humphrey v. Payton E.D. Ark.
  • 2020Baxter v. Bracey U.S.
  • 2019Fijalkowski v. Wheeler E.D. Va.
  • 2019Echols v. Lawton 11th Cir.
  • 2019Morrow v. Meachum 5th Cir.
  • 2019Zadeh v. Robinson 5th Cir.

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Abstract

In recent years, two new fronts of attack on qualified immunity have emerged. This Essay responds to both and provides a qualified defense of qualified immunity. Part I addresses Will Baude’s argument that qualified immunity finds no support in positive law. Part II turns to Joanna Schwartz’s pioneering empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy.

These two sets of criticisms—a one-two punch that qualified immunity is both unlawful and ineffective—merit serious consideration and further investigation. Neither, however, is dispositive; there are important counterpoints that merit further analysis. But ours is a qualified defense, as qualified immunity is by no means perfect. Based on our empirical work on qualified immunity in the circuit courts, we conclude with some recommendations on how the Supreme Court should improve the doctrine to better ensure it advances its intended objectives.

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