Qualifying Qualified Immunity: When Adjudications Are Unfairly Retroactive
In a post yesterday, I introduced a series on The Fair Notice Rationale for Qualified Immunity, a paper that will be published by the Florida Law Review. The paper explores the extent to which fairness to officers supports the doctrine of qualified immunity. (For a primer on the doctrine, see my post yesterday.)
The first step of the argument requires a relatively deep dive into jurisprudence to explore the principle of prospectivity and its application to adjudication. What makes retroactive laws unfair? Are adjudications—decisions by courts—ever unfair in the same way, and if so, what makes them unfair? My discussion of this issue contributes to the literature on legal theory—it may not be right in every detail, but it poses some important questions that deserve answers.
The principle of prospectivity—that laws should ordinarily apply only prospectively, not retroactively—is a basic requirement of the ideal of the rule of law. Most people have an intuitive sense that it is unfair to be punished for something you could not have known was forbidden. The norm isn’t only theoretical—its deeply ingrained in our law. The Ex Post Facto Clauses and Contract Clauses of the US Constitution prohibit some kinds of retroactive laws and statutes affecting private rights are presumed to apply prospectively.
Retroactive laws are widely considered to be unfair because they deprive people of the ability to make and follow through on their plans. Rather than treat people as self-directing agents who are worthy of participating in a regime of self-government, they treat them as means to whatever the government’s ends may be. They are in tension with the ideal of the rule of law and unfair.
Yet suits against government offi
Article from Latest