Abstract
Many observers of qualified immunity doctrine drew a sharp breath when the Supreme Court handed down Taylor v. Riojas in late 2020. The decision, reversing a grant of qualified immunity to prison officials sued under 42 U.S.C. § 1983, reflected a marked break in outcome and tone from the preceding decade of unwavering commitment by the Court to expanding the scope of qualified immunity's protection to sued officials: it was a nearly unheard-of victory for a plaintiff, and it was delivered in an opinion that cautioned against applying qualified immunity's "clearly-established-law" prong in a manner too protective of officials, rather than the opposite. The decision has prompted speculation among commentators as well as lower courts about the degree to and manner in which Taylor represents a shift in qualified immunity doctrine.
This Article considers that question, but does so through the lens of not only the Court's qualified immunity jurisprudence, but also the work of lower federal courts before and after Taylor. The Article posits that appreciating the full range of possibilities for qualified immunity's post-Taylor future requires engagement with the non-trivial degree of hybridity among circuits in the stringency of qualified immunity, mediated by not only the variety of approaches to analyzing the substantive merits of qualified immunity claims, but also an array of procedural rules that feature in qualified immunity litigation. Against that backdrop, the Article sketches three plausible futures that might emerge in Taylor's aftermath. In the least earth-shaking scenario, Taylor might be a one-off, an exceptional case that only serves to illustrate the muscularity of qualified immunity. A more far-reaching possibility is that Taylor signals a softening of the Court's clearly-established law test, which could be accomplished through a variety of mechanisms—from adjusting the level of particularity required by the clearly-established-law inquiry, to less obvious means like tinkering with the legal sources eligible to clearly establish the law. Finally, a more far-reaching though less-determinate prediction is that Taylor might prompt greater experimentation with procedural rules—such as restrictions on interlocutory appeals, or limitations on pre-discovery dismissals—that might diminish the qualified immunity's effects on constitutional litigation. To be sure, the Article does not offer odds on the accuracy of any one of those three possible predictions. Rather, the aim is to demonstrate the degree of hybridity that qualified immunity has featured and will continue to feature—perhaps to a greater degree—as the lower federal courts continue to be the primary interpreters and implementors of the doctrine. The analysis thus exposes qualified immunity as an important arena for considering the relationship between the Supreme Court and the lower federal courts, and, more practically, shines light on the array of doctrinal tools (often less visible in analyses that exclusively center the Court's work) that those wishing to reform qualified immunity might add to their toolboxes.
Citation
Jennifer E. Laurin,
Reading Taylor's Tea Leaves: The Future of Qualified Immunity,
17 Duke Journal of Constitutional Law & Public Policy
241-282
(2022)
Available at: https://scholarship.law.duke.edu/djclpp/vol17/iss1/8