Law Commons^™

Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart

Indiana Law Journal

Qualified immunity is a judicially created doctrine that shields government officials from personal liability for civil damages. Courts applying the doctrine, which is heavily dependent on the facts of the case, must determine whether the government officials’ conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. This inquiry is discretionary as judges must determine if the alleged violation was “clearly established,” a term that the Supreme Court has defined in conflicting ways. Moreover, when federal judges conduct the qualified immunity inquiry at the Rule 12(b)(6) motion to dismiss stage, their decision is …

Truth And Reconciliation: The Ku Klux Klan Hearings Of 1871 And The Genesis Of Section 1983, Tiffany R. Wright, Ciarra N. Carr, Jade W.P. Gasek

Dickinson Law Review (2017-Present)

Over the course of seven months in 1871, Congress did something extraordinary for the time: It listened to Black people. At hearings in Washington, D.C. and throughout the former Confederate states, Black women and men—who just six years earlier were enslaved and barred from testifying in Southern courts—appeared before Congress to tell their stories. The stories were heartbreaking. After experiencing the joy of Emancipation and the initial hope of Reconstruction, they had been subjected to unspeakable horror at the hands of white terrorists. They had been raped and sexually humiliated. Their children and spouses murdered. They had been savagely beaten …

Unqualified Immunity And The Betrayal Of Butz V. Economou: How The Supreme Court Quietly Granted Federal Officials Absolute Immunity For Constitutional Violations, Patrick Jaicomo, Anya Bidwell

Dickinson Law Review (2017-Present)

Qualified immunity has been the subject of well-deserved scorn in recent years as a legal mechanism that shields government officials from constitutional accountability. But its shadow has hidden another mechanism that provides an unqualified immunity from constitutional accountability. That de facto absolute immunity extends to federal officials in all but a vanishingly few contexts where claims are still permitted under the 1971 Supreme Court decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. But it was not always that way. In its 1978 decision Butz v. Economou, the Supreme Court permitted Bivens claims to proceed against …

The Constitutional Tort System, Noah Smith-Drelich

Indiana Law Journal

Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.

This Article constructs a framework of the constitutional tort system, …