Rethinking the order of battle in constitutional torts: A reply to John jeffries

Northwestern University Law Review

Volumn 105, Issue 2, 2011, Pages 969-982

  Leong, Nancy ^a  

^a UNIVERSITY OF DENVER   (United States)

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EID: 81355139488     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (108)

1. 129 S. Ct. 808 (2009)
2. See Morse v. Frederick, 551 U.S. 393, 432 (2007) (Breyer, J., concurring in part and dissenting in part) (stating that, if it were his choice, he would "end the failed Saucier experiment now").
3. 533 U.S. 194, 201 (2001), overruled by Pearson, 129 S. Ct. 808.
4. 533 U.S. 194,Id. at 200-01. (2001), overruled by Pearson, 129 S. Ct. 808.
5. Pearson, 129 S. Ct. at 818.
6. See 533 U.S. 194 id. at (2001), overruled by Pearson, 129 S. Ct. 808.819-21.
7. See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP. L. REV. 667, 676-84 (2009).
8. See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP. L. REV. 667, 676-84 (2009).Id.
9. See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP. L. REV. 667, Id. at (2009).684-702.
10. See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP. L. REV. 667, Id. at (2009)Id. at 700-08.
11. See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP. L. REV. 667, Id. at (2009)Id. at 709.
12. See John C. Jeffries Jr., Reversing the Order of Battle in Constitutional Torts, 2009 SUP. CT. REV. 115.
13. See John C. Jeffries Jr., Reversing the Order of Battle in Constitutional Torts, 2009 SUP. CT. REV.Id. at 124-26.
14. Jeffries is generally skeptical of the criticisms of mandatory merits adjudication, but he thinks they are valid in some instances, particularly with the problem of appealability.
15. Jeffries is generally skeptical of the criticisms of mandatory merits adjudication, but he thinks they are valid in some instances, particularly with the problem of appealability Id. at 131.
16. Jeffries is generally skeptical of the criticisms of mandatory merits adjudication, but he thinks they are valid in some instances, particularly with the problem of appealability Id. at 131.
17. Jeffries is generally skeptical of the criticisms of mandatory merits adjudication, but he thinks they are valid in some instances, particularly with the problem of appealability Id. at See id. at 120.
18. Jeffries is generally skeptical of the criticisms of mandatory merits adjudication, but he thinks they are valid in some instances, particularly with the problem of appealability Id. at See id. at 131.
19. John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 YALE L.J. 259, 290-92 (2000).
20. See Jeffries, supra note 12, at 136-37.
21. See id. Jeffries, supra note 12, at 136-37.
22. Jeffries, supra note 12, Id. at 122;.
23. John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 99-100 (1999).
24. Jeffries, supra note 17, at 262-63;
25. Jeffries, supra note 12, at 136-37.
26. See Jeffries, supra note 12, at 121-26.
27. See Leong, supra note 7, at 684-94. I emphasize that the narrowing of constitutional rights is not, in itself, my concern here. Rather, my concern is that the development of constitutional law is being skewed-in this case, toward a restrictive conception of rights-by influences endemic to the qualified immunity adjudicative context.
28. See Jeffries, supra note 12, at 131.
29. Saucier v. Katz, 533 U.S. 194, 200-01 (2001), overruled by Pearson v. Callahan, 129 S. Ct. 808 (2009).
30. See, e.g., Scott Dodson, The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011).
31. Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 HARV. L. REV. 1214 (2010) (describing the moral and democratic benefits that flow from vague legal standards); Cass
32. R. Sunstein, Commentary, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733, 1754-57 (1995) (defending judgments that do not fully articulate their reasoning and therefore leave the outcomes of future cases less predefined).
33. See Leong, supra note 7, at 693.
34. See Leong, supra note 7 id. at 684-88.
35. See Leong, supra note 7 id. at 688-93.
36. See Leong, supra note 7 id.
37. See Paul W. Hughes, Not a Failed Experiment: Wilson-Saucier Sequencing and the Articulation of Constitutional Rights, 80 U. COLO. L. REV. 401, 422-23 (2009) (indicating that plaintiff-friendly articulation of constitutional rights through constitutional tort suits increased significantly from the pre- Saucier time period to the post-Saucier time period);
38. Greg Sobolski & Matt Steinberg, Note, An Empiri- cal Analysis of Section 1983 Qualified Immunity Actions and Implications of Pearson v. Callahan, STAN. L. REV. 523, 544-48 (2010) (finding that the percentage of cases in which courts acknowledged a constitutional violation, yet granted qualified immunity, increased significantly from the pre-to post-Saucier periods).
39. I will discuss these differences in detail in future work. Briefly, however, the Hughes and Sobolski-Steinberg studies examined only published cases. Mine, in contrast, examined both published and unpublished cases on the grounds that judges may be intellectually influenced by evidence of their colleagues' thoughts in previous unpublished opinions and that such opinions therefore carry informal precedential weight. This seems particularly likely if a judge is wondering whether her opinion will be reversed on appeal, disputed by the other two members of an appellate panel, or considered for rehearing en banc. Likewise, our studies dealt differently with cases involving multiple claims or multiple defendants. Hughes, for instance, limited his coding to a maximum of two claims per case, while I imposed no such limitation. In cases resolving many claims-and therefore resulting in many instances of law- making-limiting the number of coded claims understates the precedential impact of the case. Finally, each of the three studies involved somewhat different time periods, which may have resulted in the variation in the results obtained. For descriptions of these studies' methodologies,
40. see Hughes, supra note 31, at 418-20;
41. Leong, supra note 7, at 684-88;
42. Sobolski & Steinberg, supra note 31, at 539-43.
43. Leong, supra note 7, at 702-08.
44. Jeffries, supra note 12, at 125.
45. Cognitive dissonance is the feeling of discomfort that results from holding two contradictory or inconsistent ideas simultaneously, which produces a drive to reduce the dissonance by modifying or rejecting one of the inconsistent ideas.
46. See LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE 128-29 (1957). The existence of cognitive dissonance is uncontroversial within the psychology com- munity and is supported by volumes of research spanning more than fifty years
47. See, e.g.JOEL COOPER COGNITIVE DISSONANCE: FIFTY YEARS OF A CLASSIC THEORY (2007); FESTINGER, supra; COGNITIVE DISSONANCE: PROGRESS ON A PIVOTAL THEORY IN SOCIAL PSYCHOLOGY (Eddie Harmon-Jones & Jud-son Mills eds., 1999).
48. For example, in discussing judicial decisions of search and seizure issues on motions to suppress evidence, Jeffries explains that, "[f]aced with a succession of guilty defendants objecting to successful searches, judges might well give officers the benefit of the doubt." Jeffries, supra note 17, at 270. This reasoning is essentially a version of the availability heuristic.
49. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. ILL. L. REV. 363, 403-04 (examining the influence of representativeness and availability heuristics on the outcome of suppression hearings).
50. See Jeffries, supra note 12, at 125.
51. See Jeffries, supra note 12, at 125 id.
52. See Jeffries, supra note 12, at 125 id.
53. See Jeffries, supra note 12,id. at 126.
54. See Jeffries, supra note 12,id. at 126.
55. See Jeffries, supra note 12,id. at 126.
56. Appellate judges in particular are surely well aware that the Supreme Court is highly unlikely to grant certiorari and, moreover, are often able to predict which cases are plausible candidates.
57. See Timothy S. Bishop, Jeffrey W. Sarles & Stephen J. Kane, Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, LITIGATION, Winter 2008, at 26, 26-27;
58. David C. Thompson & Melanie F. Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Re- sponse and the Call for the Views of the Solicitor General, 16 GEO. MASON L. REV. 237, 241 (2009) (explaining that of the 8517 petitions filed in the Supreme Court 2005 October Term, only 78 resulted in a grant of certiorari);
59. see also Summary of the Court's Workload, October Term 2009, SCOTUSBLOG (June 11, 2010), http://www.scotusblog.com/wp-content/uploads/2010/06/Preliminary-Stats-O T09_061110-1.pdf (revealing that during the 2009 Term the Supreme Court granted only eighty petitions for certiorari). Of course, one might argue that judges are seldom reversed precisely because they respect the constraints imposed by precedent. While this may be true, it does not affect the reality that judges face few practical constraints on their decisionmaking.
60. See, e.g., Dirrane v. Brookline Police Dep't, 315 F.3d 65, 69-70 (1st Cir. 2002) (explaining that Saucier's order of inquiry is "an uncomfortable exercise where the answer [to the constitutional question] may depend on a kaleidoscope of facts not yet fully developed" and that "[i]t may be that Saucier was not strictly intended to cover [such a] case").
61. See, e.g., Hatfield-Bermudez v. Aldanondo-Rivera, 496 F.3d 51, 59 (1st Cir. 2007);
62. Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir. 2006)
63. Santana v. Calderon, 342 F.3d 18, 29-30 (1st Cir. 2003)
64. Koch v. Town of Brattleboro, 287 F.3d 162, 168 (2d Cir. 2002)
65. see also Roberts v. Ward, 468 F.3d 963, 970 (6th Cir. 2006) (failing to segregate the constitutional rights and clearly established questions in holding that "[b]ecause the plaintiffs' allegations do not implicate any clearly established constitutional rights, we affirm the district court's grant of qualified immunity to Commissioner Ward").
66. See Alan K. Chen, The Facts About Qualified Immunity, 55 EMORY L.J. 229, 251 (2006).
67. See Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 909-10 (2006). Of course, parties are not always rational, but assuming that they generally are, a case that proceeds far enough to require a judicial ruling is more likely to hinge on unsettled law.
68. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
69. See Jeffries, supra note 12, at 126.
70. See Jeffries, supra note 12, at 126.id.
71. See Diana Hassel, Excessive Reasonableness, 43 IND. L. REV. 117, 134-35 (2009) (describing the difficulty encountered by courts in disaggregating constitutional and qualified immunity questions).
72. See, e.g., Anderson v. Creighton, 483 U.S. 635, 643-44 (1987) (explaining that the constitutional and qualified immunity questions are distinct in the excessive force context).
73. See, e.g., Hassel, supra note 51, at 125 ("When these two standards are both operating, a court must first determine whether a defendant's actions are objectively reasonable. Then, assuming that the actions were not objectively reasonable, the court must determine whether it was nonetheless objectively reasonable for the defendant to have believed his actions were objectively reasonable. The application of this nonsensical series of questions leads to skewed results.").
74. Jeffries and others agree that heuristics may affect the outcome of exclusionary proceedings.
75. See supra note 36. Likewise, Jeffries and other commentators agree that absent nonretroactivity-the doc- trine holding that constitutional decisions affect only plaintiffs injured in the future-courts might well avoid innovation because of the costs it would impose upon governments and institutions.
76. See, e.g., Jeffries, supra note 17, at 270-71.
77. One might reasonably ask why the merits decision would not exert a countervailing gravitational pull on the immunity decision. My data did not reveal any trend in that direction. One possible explanation is that courts tend to consider the immediate consequences of the case first-whether an officer will face exposure to damages liability-and only then turn to the merits.
78. Jeffries, supra note 12, at 131.
79. See, e.g., Ashutosh Bhagwat, Separate but Equal? The Supreme Court, the Lower Federal Courts, and the Nature of the "Judicial Power," 80 B.U. L. REV. 967, 968 (2000);
80. Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. REV. 847, 858-71 (2005).
81. Lockhart v. Fretwell, 506 U.S. 364, 369 n.2 (1993) ("Harmless-error analysis is triggered only after the reviewing court discovers that an error has been committed.").
82. See United States v. Leon, 468 U.S. 897, 924-25 (1984).
83. See Jeffries, supra note 12, at 131-36;
84. Leong, supra note 7, at 709 (describing the relevance of the posture of the case and other potential contexts in which the constitutional issue could be litigated).
85. Jeffries, supra note 12, at 131-32.
86. Jeffries, supra note 17, at 280-82.
87. Id Jeffries, supra note 17, at 283.
88. See Jeffries, supra note 12, at 117.
89. See Jeffries, supra note 17, at 280-82;
90. Jeffries, supra note 12, at 137.
91. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 913-14, 958 (1999)
92. see also, e.g., Jennifer E. Laurin, Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure, 110 COLUM. L. REV. 1002, 1015 (2010) (noting that courts encounter an interpretative gap analyzing constitutional criminal rights in a civil remedial context).
93. Nancy Leong, Making Rights, http://papers.ssrn.com/abstract=1719774. 91 B.U. L. REV. (forthcoming 2011), available at http://papers.ssrn.com/abstract=1719774.
94. See Leong, supra note 7.
95. 392 U.S. 1, 5-7 (1968).
96. Id. 392 U.S. 1, at 6-7. (1968).
97. Id. 392 U.S. 1, at 7. (1968).
98. Id. 392 U.S. 1, at 30. (1968).
99. William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1066 (1995). Terry, 392 U.S. at 8.
100. Indeed, the Court in Pearson suggested that these alternative avenues should affect a court's decision whether to analyze qualified immunity in the Saucier sequence or look solely to the "clearly established" question.
101. See Pearson v. Callahan, 129 S. Ct. 808, 821-22 (2009).
102. See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 799 (1994) ("Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated.");
103. John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 CALIF. L. REV. 1387, 1407 (2007) ("Difficulties arise in borderline cases, where the mere fact that the constable blundered seems an inadequate reason to set the criminal free. One suspects that many courts in many places strain to avoid that result." (footnote omitted));
104. Slobogin, supra note 36, at 403 ("[R]emoving the threat of exclusion should make judges who hear Fourth Amendment claims more willing to discredit factual assertions made by the police.");
105. George C. Thomas III & Barry S. Pollack, Saving Rights from a Remedy: A Societal View of the Fourth Amendment, 73 B.U. L. REV. 147, 148-49 (1993) (arguing that the exclusionary remedy "encourages judges to warp Fourth Amendment doctrine and to engage in creative fact-finding").
106. See City of Los Angeles
107. v. Lyons, 461 U.S. 95, 105-10 (1983).
108. See Leong, supra note 67.