I want to draw your attention to an important new paper by Will Baude on the flawed legal foundations of qualified immunity doctrine. The paper lucidly explains that the Supreme Court’s explanations for why 42 U.S.C. Section 1983 should be interpreted to include a qualified immunity exception are unconvincing, and thus at a minimum the Court should stop enforcing the doctrine vigorously through summary reversals and compounding its error.
As a law clerk and then as a scholar teaching Torts and Constitutional Law, I have always found qualified immunity law puzzling. Why? Because Section 1983 says nothing about immunity and there is no compelling reason for thinking that Congress intended to create anything like qualified immunity following the Civil War. (I looked into this when I was writing the Bingham biography, but I did not find anything revealing). The only way that I can make sense of the Court’s cases in this area is that Section 1983 is being treated as a common-law statute much like the Sherman Antitrust Act or the Lanham Act. By that I mean that the Justices believe Congress intended to give the courts broad latitude to develop the law of the statute. Professor Baude observes, though, that the Court has never given this justification for its qualified immunity rulings, perhaps because there is also no reason to think that Congress thought Section 1983 was that kind of statute.
The law in this area is so thick that it is hard to imagine the Court abolishing qualified immunity (though, of course, Congress can). Indeed, it is telling that none of the Justices dissent from the basic features of current doctrine. Professor Baude’s paper, though, might change that.