Professors Aaron Nielson and Christopher Walker recently published an important new study on qualified immunity: Qualified Immunity and Federalism, 109 Georgetown Law Journal 229 (2020). In this article, the authors argue that scholars, judges, and policymakers have overlooked the doctrine’s important federalism dimensions—in at least three ways.

1. Many of the reasons the U.S. Supreme Court has proffered for qualified immunity best sound in protecting the States’ sovereign interests in recruiting competent officers and providing incentives for those officers to faithfully enforce State law.
2. The States have embraced indemnification policies premised on the existence of federal qualified immunity.
3. Working against the backdrop of federal qualified immunity, state and local governments are engaged in robust policy experimentation about the optimal balance between deterrence and over-deterrence in their state-law liability schemes, thus exhibiting the “laboratories of democracy” benefits of federalism.

Drawing on findings from the most comprehensive review of state immunity and indemnification laws to date, the authors argue that these overlooked federalism dimensions have important implications for the future of qualified immunity. The observation, for instance, that the Supreme Court’s qualified immunity cases are grounded in protecting state sovereignty and have generated substantial reliance should matter for statutory interpretation and stare decisis.

Similarly, the fact that state and local governments are experimenting with how to best use state law to achieve optimal deterrence—effectively eliminating or narrowing federal qualified immunity through state liability and narrower state immunities—further supports the notion that reform should be done legislatively, not judicially. Qualified immunity’s federalism dimensions further counsel, the authors argue, that calls for the Supreme Court to revisit qualified immunity should be redirected to Congress and state legislatures.

Professor Walker presented the findings of this article on a NAAG webinar in December. Professor Joanna Schwartz also published a thoughtful response to their article in the same issue: Qualified Immunity and Federalism All the Way Down, 109 Georgetown Law Journal 305 (2020).