7 U. Penn Journal of Constitutional Law 1155 (2005)


This paper offers an examination and critique of the Supreme Court’s doctrine of qualified immunity—the immunity from constitutional tort liability granted to government officials in cases in which the tort was not “clearly established” by prior case law. Currently, courts must engage in a two-pronged inquiry: first, whether the official’s conduct was unconstitutional, and second, whether the unconstitutionality was clearly established. This paper argues that while the first question presents a standard case of common law interpretation and analysis, the second inquiry forces courts to approach the body of constitutional tort law as if it were a legislated code. However, the attempt to impose code-based interpretive techniques onto the common law landscape robs the law of the tools traditionally used to confront the dilemma between continuity and change. The paper argues that the absence of these mediating mechanisms leads to muddled reasoning as well as substantively indefensible outcomes. Moreover, since courts must apply two distinctive methods of interpretation to the same set of legal materials, the structure of immunity decisions presents a rare opportunity to do comparative law within a single judicial opinion. By examining the difference between code-inspired and common law methods of analysis, the article provides a fresh look at the confluence of the common law’s literary, prudential and interpretive assumptions, and their impact on the formation and application of legal doctrine.


Constitutional Law | Jurisprudence

Date of this Version

April 2007