Foreword: The Future of Qualified Immunity

Qualified immunity is not an unqualified success. This defense, which protects officers 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. Yet the doctrine is shown a special solicitude by the Supreme Court. The Court issues many summary reversals in qualified immunity cases, and the effect of these reversals is all in one direction: they protect, entrench, and extend the defense of qualified immunity. There have been calls for a reconsideration of the doctrine, including in a recent opinion by Justice Thomas; and calls for a reconsideration of the summary reversal practice, including in a recent opinion by Justice Sotomayor joined by Justice Ginsburg. Nevertheless, the doctrine continues its forward march, with no sign of retreat by the Court. Nor have the critics retreated. There has been a spate of new critiques of qualified immunity. 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 should be 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 also for careful thinking about what should replace it. This task is the burden of this special issue of the Notre Dame Law Review

The Supreme Court and the New Equity

The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted directly contrary to this conventional wisdom. These cases range across many areas of substantive law-from commercial contracts and employee benefits to habeas and immigration, from patents and copyright to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has treated equitable remedies as having distinctive powers and limitations. This Article describes and begins to evaluate the Court\u27s new equity cases. Faced with many federal statutes authorizing equitable relief, the Court has looked to history and tradition to determine what counts as an equitable remedy and also to determine the circumstances in which equitable relief should be given. There have been some blunders, and the Court has taken no account of the complexity of equity\u27s history. On the whole, however, the Court\u27s new equity cases represent a reasonable response to an enduring challenge: how to make sense of equitable doctrines in a world without equitable courts. This conclusion will prove controversial for scholars in remedies and in various substantive fields, but even those who disagree will need to grapple with the new equity cases, for they may shape the law of remedies for decades to come

The Parable of the Forms

(Excerpt) It might be good for each department to have its own form, or it might be better to have one form for the whole campus. That is an open question. It depends on how different the repair requests are in different departments, and on the value of specialization. It depends on whether we want some complexity about the choice of forms or if we want radical simplicity about the number of forms, with all of the complexity residing within a single form. So, too, it might be good to have different forms of action. That way, everyone knows upfront what the plaintiff has to show and what the contours of the case are, with special procedures adapted to that kind of case.2 But there were real problems with the forms of action and also with code pleading. It might therefore be better to have one form of civil action, as under the Federal Rules of Civil Procedure. This way, no one accidentally chooses the wrong form or is penalized for failing to use the old words. We can be flexible in accommodating new fact patterns that might not fit so easily into the old forms. These were important questions in the nineteenth century, when the code-pleading statutes were being debated. These were important questions in the first half of the twentieth century, when the Federal Rules were drafted and debated. Now, in the present, these questions are reemerging, as there is an increasing push for specialization in procedure. These are not the sort of questions that will ever really go away

The Mischief Rule

The mischief rule tells an interpreter to read a statute in light of the “mischief” or “evil”—the problem that prompted the statute. The mischief rule has been associated with Blackstone’s appeal to a statute’s “reason and spirit” and with Hart-and-Sacks-style purposivism. Justice Scalia rejected the mischief rule. But the rule is widely misunderstood, both by those inclined to love it and those inclined to hate it. This Article reconsiders the mischief rule. It shows that the rule has two enduringly useful functions: guiding an interpreter to a stopping point for statutory language that can be given a broader or narrower scope, and helping the interpreter prevent clever evasions of the statute. The mischief rule raises fundamental questions about the relationship of text and context, about the construction of ambiguity, and about legal interpretation when we are no longer in “the age of statutes.” In many of our present interpretive conflicts, the mischief rule offers useful guidance, for textualists and purposivists alike

Remedies, Meet Economics; Economics, Meet Remedies

One would expect the fields of ‘law and economics’ and ‘remedies’ to have substantial interaction, but scholars in each field largely ignore those in the other. Thus, law and economics scholars blunder in their description of the law of remedies, and remedies scholars are cut off from economic insights. For scholars who are in these fields, this article offers a critique, as well as suggestions for cooperation. For all legal scholars interested in melding conceptual and economic analysis, it offers a cautionary tale of disciplinary fragmentation

Foreword: The Future of Qualified Immunity

Qualified immunity is not an unqualified success. This defense, which protects officers 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. Yet the doctrine is shown a special solicitude by the Supreme Court. The Court issues many summary reversals in qualified immunity cases, and the effect of these reversals is all in one direction: they protect, entrench, and extend the defense of qualified immunity. There have been calls for a reconsideration of the doctrine, including in a recent opinion by Justice Thomas; and calls for a reconsideration of the summary reversal practice, including in a recent opinion by Justice Sotomayor joined by Justice Ginsburg. Nevertheless, the doctrine continues its forward march, with no sign of retreat by the Court. Nor have the critics retreated. There has been a spate of new critiques of qualified immunity. 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 should be 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 also for careful thinking about what should replace it. This task is the burden of this special issue of the Notre Dame Law Review

Multiple Chancellors: Reforming the National Injunction

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts. This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor model to a multiple-chancellor model, but the vulnerabilities in the latter did not become visible until the mid- to late twentieth century, when there were changes in how judges thought about legal challenges and invalid laws. Only with those changes — only in the second half of the twentieth century — did the national injunction emerge. This Article proposes a single clear rule for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. This rule is based on equitable principles and on the scope of the “judicial Power” granted by the Constitution of the United States

Hearing before the United States Senate Committee on the Judiciary “Rule by District Judge: The Challenges of Universal Injunctions”

From the introductory text of the Statement of Professor Samuel L. Bray There’s a script we’ve all become familiar with. A president issues an order, or an agency promulgates a rule. And then what happens? Those who oppose the order or rule will pick a friendly district court and bring a challenge. From that friendly district court, the challengers will seek an injunction that shuts down the order or rule—not just with respect to the parties, but shuts it down for everyone in the country. That kind of injunction is popularly called a “nationwide injunction,” or a “national injunction” or “universal injunction.” I want to make three brief points about this script: it is new, it is bad policy, and it cannot be squared with [the] role of the federal courts under our Constitution. Originally posted U.S. Senate Committee on the Judiciary Perma.c

Proper Parties, Proper Relief

From the Introduction In the last Term at the United States Supreme Court [2022], standing was the critical question in several major cases: the two challenges to the Biden Administration’s first student loan forgiveness plan, Biden v. Nebraska and Department of Education v. Brown, as well as the challenge to the Administration’s immigration priorities in United States v. Texas and the race-discrimination challenge to the Indian Child Welfare Act in Haaland v. Brackeen. Standing has featured heavily in journalistic coverage of the decision in 303 Creative LLC v. Elenis. And standing may have been the reason for the Court’s stay of a lower court decision about the legality of the abortion drug mifepristone. ... Although the new state standing has transformed the federal courts and reshaped their relationship to the executive branch, these transformations might prove temporary. This past Term at the Supreme Court saw what seems to be a deliberate turn by the Justices away from expansive conceptions of state standing. But it remains unclear whether the Court grasps the larger purpose of having a doctrine of standing, and whether it internalizes that purpose or treats standing doctrine as a box to be checked

Against Fiduciaryy Constitutionalism

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, and about the relationship of fiduciary status to good faith. Still other failings sound in constitutional law—linguistic confusions and an impossible attempt to locate the genre of the Constitution in the categories of private fiduciary law. These criticisms suggest fundamental weaknesses in the new and increasingly influential attempt to develop fiduciary constitutionalism