Judicature Point/Counterpoint on Qualified Immunity

Judicature, a Duke Law-affiliated legal publication, has just published a point-counterpoint article titled “Qualified Immunity: A Shield Too Big?” The piece is structured around six different questions related to qualified immunity, with three sets of answers from different perspectives: one from myself and my colleague Clark Neily; another from Kyle Hawkins, the solicitor general of Texas; and another from Fred Smith, Jr., a constitutional law professor at Emory University. The six questions that we address are:

  1. Is qualified immunity justified as a legal doctrine?
  2. What is the role of stare decisis in re-evaluating the doctrine?
  3. Is the doctrine of qualified immunity judicially administrable?
  4. What does the empirical data tell us about the efficacy of qualified immunity?
  5. The qualified immunity discussion usually focuses on the police context. How does it apply to other kinds of officials, and what do those cases illustrate about the doctrine?
  6. If we should change the qualified immunity doctrine, how should we do so?