Qualified immunity is not an unqualified success. This defense, which protects officers from liability for damages unless they violate clearly established law, has attracted many critics. Some object to its weak historical foundations, while others find its policy effects to be perverse. Yet the doctrine is shown a special solicitude by the Supreme Court. The Court issues many summary reversals in qualified immunity cases, and the effect of these reversals is all in one direction: they protect, entrench, and extend the defense of qualified immunity. There have been calls for a reconsideration of the doctrine, including in a recent opinion by Justice Thomas; and calls for a reconsideration of the summary reversal practice, including in a recent opinion by Justice Sotomayor joined by Justice Ginsburg. Nevertheless, the doctrine continues its forward march, with no sign of retreat by the Court.
Nor have the critics retreated. There has been a spate of new critiques of qualified immunity. For critics, however, negativity about the status quo is not enough. There must be some idea about what replaces qualified immunity, or how the transition should occur, or which branch of government should be the doctrine’s executioner. Doctrinal criticism is always relative. Legal reform is often slow; we look and look again before we leap.
The moment is therefore right for reappraising qualified immunity, and also for careful thinking about what should replace it. This task is the burden of this special issue of the Notre Dame Law Review.
Samuel L. Bray,
Foreword: The Future of Qualified Immunity,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol93/iss5/1