文章基本信息

标题：A Qualified Defense of Qualified Immunity
本地全文：下载
作者：Nielson, Aaron L ; Walker, Christopher J
期刊名称：Notre Dame Law Review
印刷版ISSN：0745-3515
出版年度：2017
卷号：93
期号：5
页码：1853
出版社：Notre Dame Law School
摘要：In recent years, two new fronts of attack on qualified immunity have emerged. This Essay responds to both and provides a qualified defense of qualified immunity. Part I addresses Will Baude’s argument that qualified immunity finds no support in positive law. Part II turns to Joanna Schwartz’s pioneering empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy. These two sets of criticisms—a one-two punch that qualified immunity is both unlawful and ineffective—merit serious consideration and further investigation. Neither, however, is dispositive; there are important counterpoints that merit further analysis. But ours is a qualified defense, as qualified immunity is by no means perfect. Based on our empirical work on qualified immunity in the circuit courts, we conclude with some recommendations on how the Supreme Court should improve the doctrine to better ensure it advances its intended objectives.
关键词：qualified immunity