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Plainly Incompetent: How Qualified Immunity Became an Exculpatory Doctrine of Police Excessive Force

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Recent instances of law enforcement killing community members and ensuing social movements have increased public attention on the issue of police use of force and the lack of officer accountability. Qualified immunity has been central to this discussion because the doctrine is often used to shield officers from civil lawsuits when plaintiffs bring constitutional tort claims under 42 U.S.C. § 1983.
The traditional understanding of qualified immunity as applied to excessive force cases is that it tracks the history of the doctrine itself. It is widely accepted that the doctrine began to thwart excessive force claims against police right after it emerged for the first time in 1967 with Pierson v. Ray—a false arrest case that created a subjective good faith defense for some § 1983 claims. Most assume this influence continued as qualified immunity took on its modern form in 1982 with Harlow v. Fitzgerald—an executive privileges case that created an objective qualified immunity test relative to clearly established law. With this standard narrative, it is largely thought that these early cases on qualified immunity in the contexts of false arrests and executive branch privileges naturally, immediately, and seamlessly became a significant constraint on plaintiffs’ § 1983 excessive force claims against police officers.

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Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, and Democratic Design

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Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged...

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Tax Law as Foreign Policy

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The use of economic statecraft is at a high-water mark. The United States uses sanctions, tariffs, and import and export controls more than...

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The Perils of Land Use Deregulation

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Land use regulation and zoning have long been core functions of local governments. Critics of local land use practices, however, assert that local regulations are too restrictive and that “exclusionary zoning” ordinances increase housing costs, reduce mobility, entrench racial segregation, prevent the poor from accessing jobs and services, and reduce economic productivity. Spurred in large part by an affordable housing crisis in popular metropolitan areas, the YIMBY (“Yes in My Backyard”) movement has urged state and even federal action to override local land use regulations that raise barriers to the construction of market-rate housing. The conventional wisdom is that local governments cannot be trusted with land use policymaking and that striking down local regulatory barriers is necessary to address a whole range of ills.

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The Case for Resurrecting the FTC Act’s Penalty Offense Authority

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On April 22, 2021, the Supreme Court unanimously ruled that the Federal Trade Commission cannot continue to seek monetary relief from...

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Cleaning Corporate Governance

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Although empirical scholarship dominates the field of law and finance, much of it shares a common vulnerability: an abiding faith in the...

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Exploring the Interpretation and Application of Procedural Rules: The Problem of Implicit and Institutional Racial Bias

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Modern American civil procedure seeks to be clear, fair, and rational. The goal of the Federal Rules of Civil Procedure, the centerpiece of modern procedural reform, was to eliminate arcane technicalities and get to the substantive issues. Consequently, the original drafters sought to streamline pleading, ensure the presence of properly interested parties, gather all the relevant facts, and enable courts to make well-founded decisions on the merits.1

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The Past and Future of Procedure Scholarship

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Written for a symposium honoring Steve Burbank’s contributions to procedure scholarship, this Essay takes Geoff Hazard’s monograph,...

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Rulemaking’s Second Founding

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This Essay takes its title from Professor Eric Foner’s 2019 Pulitzer Prize winning book The Second Founding.1 Foner’s book traces...

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The Collapse of the Federal Rules System

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A prominent federal judge who knows the field well suggested that I immerse myself in Steve Burbank’s work when I started as a civil procedure scholar and teacher. “Burbank could have dined out his whole career on the Enabling Act history alone,” I recall the judge telling me. This advice was sound for reasons that went well beyond scholarly inspiration. The judge’s advice prompted me to send Professor Burbank an e-mail asking for feedback on one of my first articles. I had hoped for just enough of a response to warrant including his name in the article’s acknowledgments. I could never have imagined all that followed. Professor Burbank has given me years of generous, undeserved mentorship. By his example, he has shown me time and again how a revered colleague draws on a rich reservoir of professional capital to build a national community of scholars. His guidance and friendship have enriched my career beyond measure. I am deeply honored to contribute to this Festschrift.

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