This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law...
Qualified Immunity
Courts, scholars, and advocacy organizations across the political spectrum are calling on the Supreme Court to limit qualified immunity or do away with the defense altogether. They argue—and offer compelling evidence to show—the doctrine bears little resemblance to defenses available when Section 1983 became law, undermines government accountability, and is both unnecessary and ill-suited to shield government defendants from the burdens and...
The Supreme Court’s qualified immunity jurisprudence provides little guidance on a central component of the doctrine: the proper sources of “clearly established law.” As a result, lower courts often resort to a restrictive definition of clearly established law, requiring a controlling precedent in the jurisdiction where the violation took place. This formalist approach unmoors qualified immunity from its intended purpose: ensuring that...