- Nov 21, 2018
I'm delighted to report that my colleague Joanna Schwartz, who has written extensively on policing and on litigation against the
Courts, scholars, and advocacy organizations across the political spectrum are calling on the Supreme Court to limit qualified immunity or do away with the defe
In this Article, I offer five predictions about how constitutional litigation would function in a world without qualified immunity that should assuage these concerns. First, there would be clarification of the law, but modest if any adjustment to the scope of constitutional rights. Second, plaintiffs’ and defendants’ litigation success rates would remain relatively constant. Third, the cost, time, and complexity associated with litigating constitutional claims would decrease. Fourth, more civil rights lawsuits would likely be filed, but other doctrines and financial considerations would mean that attorneys would continue to have strong incentives to decline insubstantial cases. Fifth, indemnification and budgeting practices would continue to shield most government agencies and officials from the financial consequences of damages awards.