This Essay offers an internal critique of qualified immunity law that explains why these problems remain intractable and why, unfortunately, there is little hope for resolution of the doctrine’s central dilemmas, short of either abandoning immunity or making it absolute. The Essay breaks down its discussion of qualified immunity into three distinct, but related, categories, and argues that the challenges presented within each category are difficult, if not impossible, to overcome. First, it addresses what can best be described as qualified immunity’s foundational jurisprudential tensions. Embedded in the doctrine are several first-level legal theory problems that can be identified and discussed, but for which there are ultimately no “right” answers. These tensions can be seen, for example, in the operationalization of the doctrine as an open-ended reasonableness standard rather than a bright-line rule, the conceptual challenge of distinguishing pure questions of law from mixed questions of law and fact, and the appropriate level of generality at which “clearly established constitutional rights” are articulated. Indeed, as the latter question suggests, the very meaning of constitutional rights underlies all conversations about qualified immunity.

These theoretical and doctrinal tensions are, in turn, translated into real practical challenges for judges and litigators, especially at the federal district court level, who struggle to implement a doctrine that suffers from serious administrability problems. Among these problems are continuing disputes over the degree to which discovery is permissible prior to resolving immunity claims, the coherent implementation of supposedly transsubstantive summary judgment procedures, and the continuing consumption of substantial resources by the adjudication of qualified immunity claims.

Finally, the Essay addresses qualified immunity from a public policy perspective, arguing that meaningful reform of the doctrine is impeded in part because of these previously identified tensions, which as suggested are not amenable to easy resolution. Reform is also made more difficult because of insurmountable epistemological problems about how the doctrine operates on the ground. Notwithstanding the emergence of excellent, recent empirical work by several legal scholars, the doctrine likely will remain entrenched in its current form because of the Supreme Court’s reluctance to consider empirical data in revising rules of constitutional enforcement coupled with Congress’s lack of political will. The legal community can continue to argue about qualified immunity at the margins, but should not reasonably expect any transformation of the doctrine’s basic structure over its next fifty years.



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