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University of Chicago Press




The Supreme Court’s elimination of the subjective element of the qualified immunity defense in constitutional tort cases had the unanticipated side effect of creating the potential for constitutional stagnation. To avoid this stagnation and although it appears to violate the general practice of constitutional avoidance, in Saucier v. Katz, the Court held that federal courts must decide the constitutional merits before deciding whether the defendant is immune from damages relief. Lower court judges and some Supreme Court Justices were unhappy at the prospect of addressing constitutional issues in all immunities cases, especially in those cases in which it was clear that the rights allegedly violated were not clearly established at the time of the violation. Even more so, courts were reluctant to reach the merits when the constitutional issues were difficult and complex, and when the decision on the merits was unlikely to provide much guidance in future cases, perhaps because the case was fact bound or unlikely to recur. In this Term’s Pearson v. Callahan, the Court relented and held that federal courts are no longer required to reach the constitutional merits whenever the defendant raises a qualified immunity defense. The Pearson decision is highly problematic in one aspect, namely that it stated no standard that federal courts should apply to decide whether to reach the constitutional merits in any particular case. The decision whether to reach the constitutional merits in constitutional tort cases in which all defendants are immune has thus apparently been left to complete judicial discretion with no governing standard whatsoever. While it may be appropriate for courts to exercise discretion over whether to reach the constitutional merits in qualified immunity cases, this discretion should be guided by legal standards to provide guidance to the parties and prevent strategic behavior designed to influence whether the merits are reached in a particular case. The primary factor that should guide the discretion is whether the decision on the merits is likely to have precedential value in future constitutional tort cases, i.e. whether deciding the merits will create clearly established law, either new rights or a clear denial of the existence of rights alleged.


Boston University School of Law Working Paper No. 09-51

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