Under current law, government officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the conduct in question violates clearly established law. The clear-law requirement gives rise to the well-known "order of battle" dilemma; a court may dismiss the action on the basis of unsettled law without clarifying the legal norm. The Court had for some time attempted to compel greater clarity by directing lower courts to address the claimed violation of constitutional right first, and only then to consider the clarity with which it was established. In its 2009 decision in Pearson v. Callahan, however, the Court changed course. By restoring the lower courts' discretion to dismiss on the basis of legal uncertainty, the Court has rekindled the debate over constitutional stagnation. This Essay suggests that constitutional tort claimants should be permitted to avoid the qualified immunity defense by pursuing claims for nominal damages alone. Such nominal claims have a lengthy pedigree, both as a common law analog to the declaratory judgment action and as a remedy for constitutional violations. Because they do not threaten to impose personal liability on official defendants, nominal claims should not give rise to a qualified immunity defense. By seeking only nominal relief, litigants could secure the vindication of their constitutional rights in cases where legal uncertainty might otherwise lead to a dismissal. Such a regime could resolve the qualified immunity dilemma, advancing the acknowledged interest in maintaining a vibrant body of constitutional law without threatening officials with liability for action taken in the shadow of unsettled law.
|Original language||English (US)|
|Number of pages||39|
|Journal||Columbia Law Review|
|State||Published - Nov 2011|
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