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06/04/2018

Aaron Nielson & Christopher Walker: A Qualified Defense of Qualified Immunity
Michael Ramsey

Aaron Nielson (Brigham Young University - J. Reuben Clark Law School) and Christopher J. Walker (Ohio State University - Michael E. Moritz College of Law) have posted A Qualified Defense of Qualified Immunity (Notre Dame Law Review, 2018 forthcoming) on SSRN.  Here is the abstract:

In recent years, we have seen a growing call in the legal academy to revisit qualified immunity—the doctrine that shields a government actor from civil suit for monetary damages unless the government official violates “clearly established law.” On the doctrinal front, for instance, Will Baude argues that qualified immunity’s foundations are suspect as a matter of positive law. On the empirical front, Joanna Schwartz has done groundbreaking work at the district-court level that calls into question qualified immunity’s effect at shielding government officials from discovery and trial. This Essay responds to both sets of criticisms and provides a partial defense of the qualified immunity. Based on the authors’ prior empirical work on qualified immunityin the circuit courts, the Essay concludes with some recommendations on how the Supreme Court could improve the doctrine of qualified immunity to better ensure the doctrine advances its intended objectives.

(Via Prawsfsblawg).

And here is Will Buade's paper questioning qualified immunity on textualist/originalist grounds: Is Qualified Immunity Unlawful? (106 California Law Review 45 (2018)).