University of Southern California

The New Qualified Immunity

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Article by Aaron L. Nielson & Christopher J. Walker
From Volume 89, Number 1 (November, 2015)

In 2009, the Supreme Court changed the procedures for a significant aspect of constitutional litigation. In Pearson v. Callahan, the Court rejected a rigid requirement that in assessing qualified immunity, courts must first address whether a constitutional right was violated and, if so, only then address whether that right was clearly established. After Pearson, where the right is not clearly established, courts have discretion to either dismiss the claim without going further or decide the constitutional question for the benefit of future litigants.

By analyzing over 800 published and unpublished qualified immunity decisions, this Article offers the first comprehensive study on the effects of Pearson in the federal courts of appeals. The results are revealing. Most important, this Article shows that Pearson’s procedural rule may affect the substantive development of constitutional law in at least three ways. First, the data suggest that concerns about “constitutional stagnation” may contain some truth. Specifically, although appellate courts are still deciding constitutional questions most of the time, they may not be deciding certain types of questions. Second, there is disparity among circuits regarding whether and how courts are reaching constitutional questions after Pearson. Because circuit courts frequently follow each other’s cases, this disparity may give certain circuits an outsized voice regarding constitutional law. And third, it is possible that Pearson may have an asymmetric impact on constitutional doctrine because of the potential overlap between judges’ substantive constitutional views based on their judicial ideologies and their procedural willingness to decide constitutional questions. Over the long run, this asymmetry between judges may shift the substance of constitutional precedent.

All of this suggests that the Supreme Court may be wise to revisit Pearson. To promote a more consistent development of constitutional law, this Article recommends that qualified immunity’s procedural standard evolve once more to require courts to give reasons for their exercise of Pearson discretion—akin to administrative law’s reasoned-decisionmaking requirement. Although Pearson sets forth a number of factors courts should consider when determining whether to exercise their discretion to decide constitutional questions, courts rarely provide their reasoning. This Article demonstrates why that should change.

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