Law Commons^™

Objecting At The Altar: Why The Herring Good Faith Principle And The Harlow Qualified Immunity Doctrine Should Not Be Married, John M. Greabe

John M Greabe

Response to: Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011)

Critics of the curtailment of the exclusionary rule worked by Herring v. United States have denounced the decision as Supreme Court activism posing as derivation from settled law. Professor Jennifer Laurin agrees that Herring breaks with exclusionary rule doctrine but disputes that it lacks any grounding in Court precedent. She says that Herring consummates a long courtship between the Leon good faith exception to the exclusionary rule and the Harlow standard for qualified immunity. Laurin premises her argument on an …

A Better Path For Constitutional Tort Law, John M. Greabe

John M Greabe

ABSTRACT

A BETTER PATH FOR CONSTITUTIONAL TORT LAW

The Supreme Court has repeatedly said that 42 U.S.C. section 1983 is not substantive. But at the same time, the Court has avoided difficult immunity problems by construing the statute to permit claims against individuals in their individual capacities -- i.e., as jural entities entirely separate and distinct from the government. The Court has thus created a contradiction. For if we are to take seriously the proposition that ordinarily only the government can violate the Constitution, the reality of individual-capacity claims does not square with characterizing section 1983 as non-substantive. The substantive …

Mirabile Dictum! The Case For "Unnecessary" Constitutional Rulings In Civil Rights Damages Actions, John M. Greabe

John M Greabe

This article contends that, for purposes of settling the law, courts entertaining civil rights lawsuits doomed to fail on grounds of qualified immunity should presumably address the question whether the complaint pleads a viable claim that the defendant caused a violation of the plaintiff's federal rights. The article also contends that such "unnecessary" threshold rulings are not dicta.