Current Issue

Foreword
PDF

Articles

Escape Room: Implicit Takings After Cedar Point Nursery
Lee Anne Fennell
PDF

In Cedar Point Nursery v. Hassid , the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. The Court has effectively constructed an escape room, a gratuitously convoluted analytic environment, that allows it to crack down on disfavored property regulations while giving a free pass to favored ones such as zoning. There is a vulnerability in the Court’s approach, however, if the goal is to knock out unwanted impositions on property owners: the Takings Clause allows the government to simply pay for what it takes. Thus, the Court’s elaborate escape room comes with a lighted exit sign located right above the cash register. And the amounts in question will often be trivial. Thus, for all its exclusion-fetishizing rhetoric, Cedar Point ‘s bark may prove worse than its bite.

Escape Room: a game in which participants confined to a room or other enclosed setting (such as a prison cell) are given a set amount of time to find a way to escape (as by discovering hidden clues and solving a series of riddles or puzzles) – Merriam-Webster Dictionary

Reason and Rhetoric in Edwards v. Vannoy
Richard M. Re
PDF

Judicial reasoning and rhetoric should be mutually reinforcing, but often they end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared “moribund,” may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards . Third, majority coalitions have a counterintuitive incentive, rooted in rhetoric, to overrule relatively insignificant precedents. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often resent in judicial decisions, including excellent ones.

Judicial Retention Elections for State Appellate Judges: The Implications of the Ballot-Access Cases
James F. Blumstein
PDF

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But the limits on access to the retention-election ballot pose substantial issues under the Supreme Court’s ballot-access cases. The Article recognizes that merit selection has been challenged under state and federal constitutional theories but not under the ballot access cases, which may prove to be the Achilles Heal of the retention election system. Strict scrutiny applies to the total foreclosure of access to an election ballot, and the strict-scrutiny standard applies to judicial elections. Strict scrutiny requires consideration of alternatives, such as contested elections or judicial appointments. While merit-selection systems have long been challenged yet never toppled, consideration of the ballot-access cases may result in a different outcome, as judicial retention elections serve as a complete bar to the ballot for all candidates other than the candidate who seeks retention for a new term.

Student Notes

Mind the Gap: A Comparative Approach for Fixing Volcker, Learning From Liikanen, and Using Vickers to Repair the US Banking System
Rachel E. Sereix
PDF

A Modest Proposal: Leveraging Private Enforcement Mechanisms and the Bayh-Dole Act to Reduce Drug Prices in the U.S. Healthcare Industry
Brittany N. Day
PDF

Paving the Way for Mindreading: Re-Interpreting “Coercion” in Article 17 of the Third Geneva Convention
John Zarrilli
PDF

Symposium on Qualified Immunity

Reading Taylor’s Tea Leaves: The Future of Qualified Immunity
Jennifer E. Laurin
PDF

Many observers of qualified immunity doctrine drew a sharp breath when the Supreme Court handed down Taylor v. Riojas in late 2020. The decision, reversing a grant of qualified immunity to prison officials sued under 42 U.S.C. § 1983, reflected a marked break in outcome and tone from the preceding decade of unwavering commitment by the Court to expanding the scope of qualified immunity’s protection to sued officials: it was a nearly unheard-of victory for a plaintiff, and it was delivered in an opinion that cautioned against applying qualified immunity’s “clearly-established-law” prong in a manner too protective of officials, rather than the opposite. The decision has prompted speculation among commentators as well as lower courts about the degree to and manner in which Taylor represents a shift in qualified immunity doctrine.

This Article considers that question, but does so through the lens of not only the Court’s qualified immunity jurisprudence, but also the work of lower federal courts before and after Taylor. The Article posits that appreciating the full range of possibilities for qualified immunity’s post-Taylor future requires engagement with the non-trivial degree of hybridity among circuits in the stringency of qualified immunity, mediated by not only the variety of approaches to analyzing the substantive merits of qualified immunity claims, but also an array of procedural rules that feature in qualified immunity litigation. Against that backdrop, the Article sketches three plausible futures that might emerge in Taylor’s aftermath. In the least earth-shaking scenario, Taylor might be a one-off, an exceptional case that only serves to illustrate the muscularity of qualified immunity. A more far-reaching possibility is that Taylor signals a softening of the Court’s clearly-established law test, which could be accomplished through a variety of mechanisms—from adjusting the level of particularity required by the clearly-established-law inquiry, to less obvious means like tinkering with the legal sources eligible to clearly establish the law. Finally, a more far-reaching though less-determinate prediction is that Taylor might prompt greater experimentation with procedural rules—such as restrictions on interlocutory appeals, or limitations on pre-discovery dismissals—that might diminish the qualified immunity’s effects on constitutional litigation. To be sure, the Article does not offer odds on the accuracy of any one of those three possible predictions. Rather, the aim is to demonstrate the degree of hybridity that qualified immunity has featured and will continue to feature—perhaps to a greater degree—as the lower federal courts continue to be the primary interpreters and implementors of the doctrine. The analysis thus exposes qualified immunity as an important arena for considering the relationship between the Supreme Court and the lower federal courts, and, more practically, shines light on the array of doctrinal tools (often less visible in analyses that exclusively center the Court’s work) that those wishing to reform qualified immunity might add to their toolboxes.

Getting It Right: Whether to Overturn Qualified Immunity
David D. Coyle
PDF

Qualified immunity, the defense available to police officers and other government officials facing civil rights lawsuits, has increasingly come under attack. In recent opinions, Justice Clarence Thomas has noted his growing concern that the Court’s current qualified immunity jurisprudence, which deals with whether a right is “clearly established”, strays from Congress’s intent in enacting the Civil Rights Act of 1871 (the statute giving rise to civil rights claims). Other jurists and legal scholars similarly criticize the doctrine, with many calling for the Court to revisit its qualified immunity jurisprudence and abolish or significantly alter the doctrine.

Given that the Court’s qualified immunity precedents have been routinely followed for decades, should the Court overturn them, even if they are wrong? After all, as Justice Brandeis recognized, “[s]tare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”1 Moreover, qualified immunity is derived from statutory precedent, and the Court counsels that stare decisis concerns weigh heavily with such judicial doctrines.

Assuming the Court erred in its current qualified immunity jurisprudence, this Article considers whether stare decisis concerns should be relaxed to allow qualified immunity to be overturned. This Article first addresses why relaxing stare decisis for statutory precedents is appropriate in the case of qualified immunity. The Article then builds on and applies a stare decisis framework advanced by Professor Randy Kozel2 to the Court’s qualified immunity jurisprudence to determine whether stare decisis requires the Court to preserve qualified immunity in its current form. After applying this framework, the Article ultimately concludes that the Court’s current “clearly established” law standard should be overturned, but some form of qualified immunity should remain.

Qualified Immunity’s 51 Imperfect Solutions
Aaron L. Nielson & Christopher J. Walker
PDF

Qualified immunity has no perfect solution. On one hand, qualified immunity can prevent individuals whose civil rights have been violated from receiving monetary compensation—obviously, a bad outcome. On the other hand, without qualified immunity, government officials who fear liability may hold back from protecting the public—another bad outcome. Qualified immunity seeks to strike a balance between those bad outcomes: Plaintiffs can recover damages only if a government official violated clearly established law. Some individuals thus will have their rights violated but receive no compensation, while other individuals may be harmed because the government does not come to their aid. Qualified immunity’s goal, however, should be to produce an outcome that is best for the public overall. Whether qualified immunity strikes the right balance is a topic of intense debate, which intensified following the killing of George Floyd and subsequent public protests in the summer of 2020. Many scholars, judges, and policymakers have since urged a rebalancing. Some even call for qualified immunity to be eliminated altogether. Others counter, however, that reforming qualified immunity will do more harm than good.

In our contribution to this symposium on the future of qualified immunity, we offer a partial path forward. Regardless of whether qualified immunity is reformed at the federal level, states have acted and can further act as laboratories of democracy to experiment with different balances. To illustrate the benefits of this approach, we identify reforms to qualified immunity that have been roposed at the federal level to demonstrate how they could be applied at the state level. We also expand the conversation by identifying other potential civil-rights litigation reforms that could be implemented in the states, including changes related to (i) pleading standards; (ii) anti-stagnation rules; and (iii) availability of appellate review. Although state-led reform is not a panacea, 51 imperfect solutions may be better than one imperfect solution.

Current Issue

Foreword
PDF

Articles

Escape Room: Implicit Takings After Cedar Point Nursery
Lee Anne Fennell
PDF

In Cedar Point Nursery v. Hassid , the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. The Court has effectively constructed an escape room, a gratuitously convoluted analytic environment, that allows it to crack down on disfavored property regulations while giving a free pass to favored ones such as zoning. There is a vulnerability in the Court’s approach, however, if the goal is to knock out unwanted impositions on property owners: the Takings Clause allows the government to simply pay for what it takes. Thus, the Court’s elaborate escape room comes with a lighted exit sign located right above the cash register. And the amounts in question will often be trivial. Thus, for all its exclusion-fetishizing rhetoric, Cedar Point ‘s bark may prove worse than its bite.

Escape Room: a game in which participants confined to a room or other enclosed setting (such as a prison cell) are given a set amount of time to find a way to escape (as by discovering hidden clues and solving a series of riddles or puzzles) – Merriam-Webster Dictionary

Reason and Rhetoric in Edwards v. Vannoy
Richard M. Re
PDF

Judicial reasoning and rhetoric should be mutually reinforcing, but often they end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared “moribund,” may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards . Third, majority coalitions have a counterintuitive incentive, rooted in rhetoric, to overrule relatively insignificant precedents. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often resent in judicial decisions, including excellent ones.

Judicial Retention Elections for State Appellate Judges: The Implications of the Ballot-Access Cases
James F. Blumstein
PDF

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But the limits on access to the retention-election ballot pose substantial issues under the Supreme Court’s ballot-access cases. The Article recognizes that merit selection has been challenged under state and federal constitutional theories but not under the ballot access cases, which may prove to be the Achilles Heal of the retention election system. Strict scrutiny applies to the total foreclosure of access to an election ballot, and the strict-scrutiny standard applies to judicial elections. Strict scrutiny requires consideration of alternatives, such as contested elections or judicial appointments. While merit-selection systems have long been challenged yet never toppled, consideration of the ballot-access cases may result in a different outcome, as judicial retention elections serve as a complete bar to the ballot for all candidates other than the candidate who seeks retention for a new term.

Student Notes

Mind the Gap: A Comparative Approach for Fixing Volcker, Learning From Liikanen, and Using Vickers to Repair the US Banking System
Rachel E. Sereix
PDF

A Modest Proposal: Leveraging Private Enforcement Mechanisms and the Bayh-Dole Act to Reduce Drug Prices in the U.S. Healthcare Industry
Brittany N. Day
PDF

Paving the Way for Mindreading: Re-Interpreting “Coercion” in Article 17 of the Third Geneva Convention
John Zarrilli
PDF

Symposium on Qualified Immunity

Reading Taylor’s Tea Leaves: The Future of Qualified Immunity
Jennifer E. Laurin
PDF

Many observers of qualified immunity doctrine drew a sharp breath when the Supreme Court handed down Taylor v. Riojas in late 2020. The decision, reversing a grant of qualified immunity to prison officials sued under 42 U.S.C. § 1983, reflected a marked break in outcome and tone from the preceding decade of unwavering commitment by the Court to expanding the scope of qualified immunity’s protection to sued officials: it was a nearly unheard-of victory for a plaintiff, and it was delivered in an opinion that cautioned against applying qualified immunity’s “clearly-established-law” prong in a manner too protective of officials, rather than the opposite. The decision has prompted speculation among commentators as well as lower courts about the degree to and manner in which Taylor represents a shift in qualified immunity doctrine.

This Article considers that question, but does so through the lens of not only the Court’s qualified immunity jurisprudence, but also the work of lower federal courts before and after Taylor. The Article posits that appreciating the full range of possibilities for qualified immunity’s post-Taylor future requires engagement with the non-trivial degree of hybridity among circuits in the stringency of qualified immunity, mediated by not only the variety of approaches to analyzing the substantive merits of qualified immunity claims, but also an array of procedural rules that feature in qualified immunity litigation. Against that backdrop, the Article sketches three plausible futures that might emerge in Taylor’s aftermath. In the least earth-shaking scenario, Taylor might be a one-off, an exceptional case that only serves to illustrate the muscularity of qualified immunity. A more far-reaching possibility is that Taylor signals a softening of the Court’s clearly-established law test, which could be accomplished through a variety of mechanisms—from adjusting the level of particularity required by the clearly-established-law inquiry, to less obvious means like tinkering with the legal sources eligible to clearly establish the law. Finally, a more far-reaching though less-determinate prediction is that Taylor might prompt greater experimentation with procedural rules—such as restrictions on interlocutory appeals, or limitations on pre-discovery dismissals—that might diminish the qualified immunity’s effects on constitutional litigation. To be sure, the Article does not offer odds on the accuracy of any one of those three possible predictions. Rather, the aim is to demonstrate the degree of hybridity that qualified immunity has featured and will continue to feature—perhaps to a greater degree—as the lower federal courts continue to be the primary interpreters and implementors of the doctrine. The analysis thus exposes qualified immunity as an important arena for considering the relationship between the Supreme Court and the lower federal courts, and, more practically, shines light on the array of doctrinal tools (often less visible in analyses that exclusively center the Court’s work) that those wishing to reform qualified immunity might add to their toolboxes.

Getting It Right: Whether to Overturn Qualified Immunity
David D. Coyle
PDF

Qualified immunity, the defense available to police officers and other government officials facing civil rights lawsuits, has increasingly come under attack. In recent opinions, Justice Clarence Thomas has noted his growing concern that the Court’s current qualified immunity jurisprudence, which deals with whether a right is “clearly established”, strays from Congress’s intent in enacting the Civil Rights Act of 1871 (the statute giving rise to civil rights claims). Other jurists and legal scholars similarly criticize the doctrine, with many calling for the Court to revisit its qualified immunity jurisprudence and abolish or significantly alter the doctrine.

Given that the Court’s qualified immunity precedents have been routinely followed for decades, should the Court overturn them, even if they are wrong? After all, as Justice Brandeis recognized, “[s]tare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”1 Moreover, qualified immunity is derived from statutory precedent, and the Court counsels that stare decisis concerns weigh heavily with such judicial doctrines.

Assuming the Court erred in its current qualified immunity jurisprudence, this Article considers whether stare decisis concerns should be relaxed to allow qualified immunity to be overturned. This Article first addresses why relaxing stare decisis for statutory precedents is appropriate in the case of qualified immunity. The Article then builds on and applies a stare decisis framework advanced by Professor Randy Kozel2 to the Court’s qualified immunity jurisprudence to determine whether stare decisis requires the Court to preserve qualified immunity in its current form. After applying this framework, the Article ultimately concludes that the Court’s current “clearly established” law standard should be overturned, but some form of qualified immunity should remain.

Qualified Immunity’s 51 Imperfect Solutions
Aaron L. Nielson & Christopher J. Walker
PDF

Qualified immunity has no perfect solution. On one hand, qualified immunity can prevent individuals whose civil rights have been violated from receiving monetary compensation—obviously, a bad outcome. On the other hand, without qualified immunity, government officials who fear liability may hold back from protecting the public—another bad outcome. Qualified immunity seeks to strike a balance between those bad outcomes: Plaintiffs can recover damages only if a government official violated clearly established law. Some individuals thus will have their rights violated but receive no compensation, while other individuals may be harmed because the government does not come to their aid. Qualified immunity’s goal, however, should be to produce an outcome that is best for the public overall. Whether qualified immunity strikes the right balance is a topic of intense debate, which intensified following the killing of George Floyd and subsequent public protests in the summer of 2020. Many scholars, judges, and policymakers have since urged a rebalancing. Some even call for qualified immunity to be eliminated altogether. Others counter, however, that reforming qualified immunity will do more harm than good.

In our contribution to this symposium on the future of qualified immunity, we offer a partial path forward. Regardless of whether qualified immunity is reformed at the federal level, states have acted and can further act as laboratories of democracy to experiment with different balances. To illustrate the benefits of this approach, we identify reforms to qualified immunity that have been roposed at the federal level to demonstrate how they could be applied at the state level. We also expand the conversation by identifying other potential civil-rights litigation reforms that could be implemented in the states, including changes related to (i) pleading standards; (ii) anti-stagnation rules; and (iii) availability of appellate review. Although state-led reform is not a panacea, 51 imperfect solutions may be better than one imperfect solution.