FOREWORD: THE FUTURE OF QUALIFIED IMMUNITY.

• Author: Bray, Samuel L.
• Position: SYMPOSIUM

Qualified immunity is not an unqualified success. This defense, which protectsofficers from liability for damages unless they violate clearly established law,has attracted many critics. Some object to its weak historical foundations, while others find its policy effects to be perverse. (1) Yet the doctrine is shown a special solicitude by the Supreme Court. (2) The Court issues many summaryreversals in qualified immunity cases, and the effect of these reversals is all in one direction: they protect, entrench, and extend the defense of qualifiedimmunity. There have been calls for a reconsideration of the doctrine, includingin a recent opinion by Justice Thomas; (3) and calls for a reconsideration of the summary reversal practice, including in a recent opinion by Justice Sotomayor joined by Justice Ginsburg. (4) Nevertheless, the doctrine continues its forward march, with no sign of retreat by the Court. (5)

Nor have the critics retreated. There has been a spate of new critiques of qualified immunity. (6) For critics, however, negativity about the status quo is not enough. There must be some idea about what replaces qualified immunity,or how the transition should occur, or which branch of government shouldbe the doctrine's executioner. Doctrinal criticism is always relative. Legal reform is often slow; we look and look again before we leap.

The moment is therefore right for reappraising qualified immunity, and alsofor careful thinking about what should replace it. This task is the burden of this special issue of the Notre Dame Law Review.

Thetask is not only timely but important. Qualified immunity is a consequential doctrine. (7) When a private plaintiff sues a government officer, what determines the outcome is often not a doctrine of standing or substantive liability, but qualified immunity. And to a striking degree qualified immunity brings together questions of federalism, separation of powers, the relative power of the judge and jury, the relationship of rights and remedies, the relationship of damages to equitable remedies, the strength of precedent, and the grounds and pace of legal change. The Essays in this issue are filled with insights about these questions. (8)

Yet when taken together these Essays also suggest something about why qualified immunity is so hard to remove. Legal scholars often speak of "incompletely theorized agreement," a term coined by Professor Cass Sunstein. (9) And it may seem that among the critics of qualified immunity there is an incompletely theorized agreement, an agreed conclusion even though...