Students who are looking for paper topics sometimes ask me where I get my ideas. The creative process is mysterious. If I really knew how to be creative, I’d be an inventor or a scientist. Nevertheless, there are some tendencies that I can identify. First, ideas can develop organically from a prior project. In other words, while working on something you come across something else interesting and get an idea. Second, ideas can form in response to a specific event (a new case or statute) that gets you exercised. Third, there may be something that bugs you or feels wrong. Then you explore that topic and discover something new.
With respect to the last of these categories, I’ve long been troubled by the state of qualified immunity doctrine. This is a subject of enormous practical importance for anyone seeking to sue public officials for violations of civil rights or other injuries. Most of the rules that govern these suits were made by judges in just the last 30 years and have almost no connection to historical practice or precedent in the sense that they give far greater deference to government wrongdoing than was true in the past. Strangely enough, this does not seem to have aroused much sustained academic criticism (at least as far as I can find). So now I’m poking around to see if I should write something about this. Perhaps my hunch or feeling will turn out to be without foundation. We’ll see.