Faculty Bibliography

Reformers are taking aim at the doctrine of ‘qualified immunity,’ which protects government officials from liability for violating the rights of citizens.

"Described as “superb” and “inspiring” by Dean Erwin Chemerinsky, Civil Rights Enforcement dives deeply into doctrines concerning the enforcement of civil rights (rather than the content of those rights) and the aspects of those doctrines of most importance to those litigating in the field. The book is organized as a litigator might think through a case, and it provides students rich, detailed hypothetical problems to which they can apply what they are learning. Alongside these practice-focused elements, the book’s notes, questions, and topic transitions push students to grapple both with (1) strategic questions about impact litigation and the role of civil rights litigation in constitutional enforcement, and (2) theoretical questions such as tradeoffs between the values of federalism and judicial review and the relationship between rights and remedies." -- Wolters Kluwer

Qualified immunity—the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate “is sufficiently clear that every reasonable official would have understood that what he is doing violates that right”—has come under increasing judicial and scholarly criticism from diverse ideological viewpoints. This Essay considers the question of which branch of government should fix it. I take as a starting point the many critiques of qualified immunity and then turn to the question of whether courts should wait for Congress to reform this problematic doctrine. Do considerations of stare decisis or institutional competence counsel in favor in leaving to Congress the task of reform? I argue that they do not. In light of the Supreme Court’s persistent and pervasive involvement with the development of all aspects of modern qualified immunity doctrine, from its content to its scope to the manner and timing of its assertion and resolution in the courts, qualified immunity has become a special province of the Court rather than a mere byproduct of statutory interpretation that should be corrected (if at all) by Congress. The Court is best positioned to understand the effects of the doctrine on the development of constitutional law. Moreover, the criteria to which the Court traditionally looks in deciding whether it should overrule a precedent counsel in favor of judicial reform. The factual and legal foundations underlying qualified immunity have been eroded. The doctrine is unworkable, producing contradictions and confusions and stultifying the development of constitutional law. Although it is reasonable to assume that officers and municipal governments rely on the protection of qualified immunity for the protection of municipal coffers, the Court should not, and in prior cases did not, afford weight to a reliance interest in violating the Constitution. From Pierson to Pearson, qualified immunity is a mess of the Supreme Court’s making, and the Supreme Court should clean it up.

The defense of qualified immunity enables government officials to defend against constitutional claims on the ground that the right they violated was not “clearly established” and therefore a reasonable officer would not have known that his conduct violated the law. It’s an oft-asserted and powerful defense. And at the Supreme Court, it’s the rationale for a steady string of summary reversals, including yesterday’s decision in Taylor v. Barkes. It’s worth asking what function these reversals serve.

Federal sentencing law is in the midst of a period of profound change. In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors. The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years. But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant’s sentence, violated the Sixth Amendment. The Court’s remedy was to render the Guidelines advisory only—a starting point but not necessarily the endpoint for sentencing decisions. Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice. Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant. The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure. Kimbrough authorized policy-based variances. Gall instructed courts how to apply the advisory Guidelines in individual cases. But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized. The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences. Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall. Academic discourse has likewise left this issue unaddressed. This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations. The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves. When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime. Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts’ grounds for variance, therefore, provides vital information about how the Guidelines can be improved. The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court’s discretion. The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.

The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied — and decisions on the merits of core constitutional questions avoided — by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.