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Full-Text Articles in Law

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker May 2022

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Publications

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …


The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker Sep 2021

The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker

Faculty Publications

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and …


A Scapegoat Theory Of Bivens, Katherine Mims Crocker May 2021

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …


Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker May 2021

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …


Section 5: Race, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2015

Section 5: Race, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 3: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2013

Section 3: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 7: Gay Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2012

Section 7: Gay Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2008

Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 2: Moot Court, Guantanamo Detainees & The Military Commissions Act, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2007

Section 2: Moot Court, Guantanamo Detainees & The Military Commissions Act, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 2: The War On Terror, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2006

Section 2: The War On Terror, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 7: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2006

Section 7: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2005

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 3: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Oct 2004

Section 3: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 3: Gay Rights After Lawrence, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2003

Section 3: Gay Rights After Lawrence, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2003

Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2002

Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 1: Adarand Constructors V. Mineta, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2001

Section 1: Adarand Constructors V. Mineta, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2001

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2000

Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya Apr 2000

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Faculty Publications

No abstract provided.


Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 1999

Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks Jan 1999

Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks

Faculty Publications

No abstract provided.


Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 1998

Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 2: Moot Court, Piscataway Township Board Of Education V. Taxman, Institute Of Bill Of Rights Law, William & Mary Law School Oct 1997

Section 2: Moot Court, Piscataway Township Board Of Education V. Taxman, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 3: The Court And Race Relations, Institute Of Bill Of Rights Law, William & Mary Law School Oct 1997

Section 3: The Court And Race Relations, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Oct 1997

Section 6: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Oct 1996

Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 6: Voting Rights, Institute Of Bill Of Rights Law, William & Mary Law School Oct 1996

Section 6: Voting Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Sep 1995

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School Oct 1994

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.