Notre Dame Journal of Law, Ethics & Public Policy Online

Document Type


Publication Date



This Note is confined to qualified immunity and habeas corpus sequencing jurisprudence. Scholars have debated these “order of battle” issues, arguing for a mandatory constitutional merits analysis in every qualified immunity or habeas corpus claim, while others have written articles that support the current approaches with certain carved-out exceptions. A few scholars have discussed qualified immunity and habeas corpus together, along with other doctrines, to demonstrate alleged recent judicial activist tendencies. Others have discussed the doctrines together in the context of civil rights, arguing that the qualified immunity expansion and the introduction of the AEDPA standard has led to legal stagnation, and, as a result, diminished civil rights. This Note is the first to analyze the two doctrines together in order to argue that the Supreme Court’s current approach, a case-by-case analysis, responds to inherent tensions within our dual system of government and provides the best compromise. In coming to this conclusion, this Note discusses the evolution of the two doctrines, while considering problems of federalism, separation of powers, dicta, judicial economy, and fairness. Finally, it analyzes various scholars’ suggestions, reactions, and criticisms to alternative approaches the Supreme Court could impose.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.