Qualifying Qualified Immunity: Why Constitutional Liability Is Generally Less Fair …
This is the third in a series of posts on my forthcoming article The Fair Notice Rationale for Qualified Immunity. Yesterday I explained why liability that is unpredictable from a defendant’s standpoint is unfair: just like retroactive law, it deprives the defendant of the ability to plan, and treats her as a means to an end. That theory helps evaluate the fairness of constitutional liability, and, therefore, the fair notice rationale for the defense of qualified immunity.
My paper argues next that three aspects of constitutional liability make it—in general—more likely to be unpredictable or otherwise unfair than most other forms of civil liability. My argument is not that constitutional liability is the only form of liability that has one or more of these features, but that altogether they make constitutional liability sufficiently unique, as a class, to justify the availability of a defense in at least some cases.
First, constitutional liability is often uniquely unpredictable. Most of the constitutional provisions that form the basis of that liability are vague. Jurists disagree about interpretive methodology. And to the extent a provision requires judicial construction, jurists disagree about what norms or principles should guide it. In short, constitutional doctrine is subject, at least in principle, to more unpredictable changes than most civil liability. Courts interpret provisions for the first time, they apply a doctrine to the states for the first time, they announce a previously unannounced right. They apply doctrinal principles to practices or customs that are longstanding. They tweak doctrine to apply it to new factual contexts. And so on.
This is not to say that constitutional law is arbitrary or entirely unpre
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