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Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander
Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander
Faculty Working Papers
Scholars have criticized the Court's qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid …
Phony Originalism And The Establishment Clause, Andrew M. Koppelman
Phony Originalism And The Establishment Clause, Andrew M. Koppelman
Faculty Working Papers
The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.