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:
- Is qualified immunity justified as a legal doctrine?
- What is the role of stare decisis in re-evaluating the doctrine?
- Is the doctrine of qualified immunity judicially administrable?
- What does the empirical data tell us about the efficacy of qualified immunity?
- 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?
- If we should change the qualified immunity doctrine, how should we do so?