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Public Law & Legal Theory


Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome-sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and quantitative analysis of both the entire federal judiciary and the recent spate of Trump appointees, this Article argues that absent qualified immunity, courts are likely to issue more merits decisions against the plaintiffs that outcome-sensitive critics care about. These merits decisions would not only be necessarily broader than a decision on qualified immunity’s “clearly established” prong but may be entrenched for decades because of the current liberal-led attempts to strengthen stare decisis.

From this specific discussion, the Article takes a general lesson. As the political economy around advocates changes, they must reevaluate the tools at their disposal. Old friends may become foes and former enemies may become saviors. This lesson underlies many of the current debates about the role of various institutions, such as those surrounding court reform and the distribution of federal-state and state-local power. This Article makes this lesson explicit and extends it to the realm of constitutional litigation. In that realm, advocates and policymakers should prefer procedural losses to merits or justiciability decisions because hostile procedural doctrines can be modified by the political branches, while substantive and justiciability doctrines are solely the province of the courts.

Finally, by combining the question “who decides?” with the nascent literature on power-shifting, this Article suggests a way for qualified immunity’s outcome-sensitive opponents to go beyond least-bad losses to actual wins. Such individuals should focus their considerable political will on encouraging legislation that raises the floor of substantive rights and empowers the communities most affected by police violence, thereby shifting the power to decide away from the federal judiciary.



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