Saturday, March 13, 2010

Pearson, Iqbal and Procedural Judicial Activism

Thanks again to the staff at Blackbook and the commenters for the welcome.

I want to start off by summarizing, in a few parts, my latest article, Pearson, Iqbal, and Procedural Judicial Activism. The paper takes aim at two cases the Supreme Court recently decided -- Pearson v. Callahan and Ashcroft v. Iqbal -- and concludes that the cases are problematic, not just on their own terms but also in terms of their potential interaction.

Pearson was a qualified immunity case. By way of background, qualified immunity is a doctrine that generally shields government officials from liability for their actions. In a nutshell, the rule that the Supreme Court formulated, which found its most famous expression in 2001's Saucier v. Katz, was this: a state official would not be liable unless his actions (1) violated a constitutional right and (2) that right was "clearly established" at the time of the relevant conduct. These two questions were to be addressed in sequence. As the Court explained, "This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry."

To see how this works in practice, consider the Court's recent decision in Safford v. Redding. Savana Redding was strip searched at school and subsequently sued, claiming that the search violated her constitutional rights. The Court held (at step one) that the search did in fact violate Redding's rights. But it went on to hold (at step two) that the right was not "clearly established" at the time of the search. Note the salutory effect of this sequencing: in the future, school officials will know the permissible limits of a search, and students will have a clearer understanding of their rights.

In Pearson v. Callahan, the Supreme Court made Saucier's sequencing optional. Now, courts are free to skip ahead to step two and grant an official immunity based on the fact that the asserted right was not clearly established. Note the problem: if a court skips to step two on the basis that the right in question was not clear, then the court does not pass on the nature of the right at issue. That means that, the next time a similar case comes up, the relevant right still has not been clearly established. Over time, the "voluntary sequencing" regime will have a detrimental effect. Courts will never need to address the constitutional question, the right will never become established, and the universe of claims available to civil rights plaintiffs is smaller than it otherwise would be. (Obviously, in some cases -- like Redding, which was post-Pearson -- a court will pass on the first question by choice; it is not inevitable that all cases get kicked out by a court moving directly to step two. But these will generally be the exception.)

This is why Perason is problematic on its own terms: by permitting courts to bypass the first step of the immunity analysis, it will limit the range of claims that civil rights plaintiffs can bring.

In my next post, I'll summarize the problems with Iqbal, and in a third, I'll explain how the interaction between these cases harms civil rights plaintiffs. The article is still forthcoming, so if anyone has comments, I'd love to hear them and, to the extent feasible, will work them into future drafts.


  1. Goutam, great post. I have a few points--mainly regarding Pearson.

    First, I feel as if your theory makes sense only if you presuppose the principal way to "establish" constitutional rights is via civil claims as in Pearson. Is it not true that such rights-for purposes of Saucier analysis-can be established through criminal appeals and perhaps in habeas proceedings?

    Second, I wonder if you've thought about the implications on advisory opinions presented by your argument. If the court simply decides "first that a right was violated THEN that an official is not immune, could this not invoke Article III justiciability concerns?

    Overall, fantastic article.

  2. Great to have you posting Goutam

  3. If 10:16 is correct wouldn't every order of decision invoke justiciability concerns?

  4. Goutam, are you going to respond to my question (10:16) in this post or in another?

  5. That was awesome! Probably one of the more interesting reads in awhile. I am always up for a thoughtful discussion like this.

    Dui Attorney

  6. You suggested in your article that you discovered or coined procedural activism but you find this in the papers of Trendle and some other authorities in articles on judicial case management. These were written way ahead of your paper. Just to set the record straight.

  7. Check this for instance.

    I did not proceed to read your paper when I sensed intellectual misrepresentation after reading the first few lines. It must be a good read as others said but the misrepresentation is a big turn-off. I am sure that if you edit your paper to reflect the truth that you are not the first to coin procedural judicial activism, people like me will read your paper.



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