Qualified Immunity: A Legal, Practical, and Moral Failure

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1 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
2 The Federalist, no. 48 (James Madison).
3 This paper refers to all historical versions of the statute anachronistically as “Section 1983,” as the operative text has been, in relevant part, essentially identical through every iteration.
4 An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for Other Purposes, ch. 22, § 1, 17 Stat. 13 (1871).
5 42 U.S.C. § 1983.
6 Forrester v. White, 484 U.S. 219, 225–26 (1988).
7 Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting Pierson v. Ray, 386 U.S. 547, 554–55 (1967)).
8 Akhil Reed Amar, “Of Sovereignty and Federalism,” Yale Law Journal 96, no. 7 (1987): 1506. Of course, prior to the passage of the Fourteenth Amendment, such “constitutional torts” were almost exclusively limited to federal officials, as the substantive protections of the Bill of Rights were not yet applicable against the states. Barron v. Baltimore, 32 U.S. 243, 250–51 (1833).
9 James E. Pfander, Constitutional Torts and the War on Terror (New York: Oxford University Press, 2017), pp. 3–14, 16–17; David E. Engdahl, “Immunity and Accountability for Positive Governmental Wrongs,” University of Colorado Law Review 44 (1972): 14–21; and Ann Woolhandler, “Patterns of Official Immunity and Accountability,” Case Western Reserve Law Review 37, no. 3 (1986): 414–22.
10 For a more complete analysis of this particular subject in the context of qualified immunity, see William Baude, “Is Qualified Immunity Unlawful?,” …

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