Awful Qualified Immunity Cases

HasTheSupremeCourtCleanedUpQualifiedImmunityYet.com

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Three qualified immunity cases are thoroughly analyzed in a particularly depressing AO episode, but first David and Sarah talk through an injunction on asylum seekers some are calling “Trump-Lite”, plus:

-Broken immigration systems

-Say it with me folks, “Congress, do your job.”

-Too much too soon too fast

-Courts not complying with qualified immunity statutes

-Does Congress have better things to show rather than Hunter Biden revenge porn?

-Advice to prospecting law students

-Small town gossip and country songs

-Sarah’s victory lap around Hunter Biden plea deal

-Be nice to the docketing clerks

This episode is sponsored by FIRE. FIRE’s mission is to safeguard and uphold the right of all Americans to freedom of speech. Be a part of the front line of a growing movement by joining the FIRE Update.

Show Notes:

-Update: AO still has the best listeners

-Ilya Somin for Reason

-David Lat’s Original Jurisdiction Substack

-One Billion Americans: The Case for Thinking Bigger

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Comments (55)
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  1. Charles Putnam

    At a very early stage of my career I did defense side work in section 1983 cases. The discussion of the section 1983/qualified immunity cases in this podcast fell well short of the self-reflection and humility that Ms. Isgur and Mr. French normally exhibit (qualities that ordinarily make me a delighted subscriber of both the podcast and The Dispatch).

    In my view, the principal mistake was to treat qualified immunity in isolation from the broader statutory scheme, which courts will necessarily bear in mind, without acknowledging that doing so (a) borders on legal malpractice and (b) obscures important public policy choices. For all kinds of reasons both good and bad, governments generally do not choose to make themselves liable to injury suits (my memory of the FTCA for instance, is that it is not an especially friendly forum for claimants). For important historical and policy reasons, in enacting section 1983 Congress chose to impose a very broad standard of economic liability on state and local governments. Unfortunately, the economic interests of those governments (and their taxpayers) are barely articulated in the legislative and judicial processes that enact the underlying rights litigated in 1983 suits. For instance, should we force state governments that struggle to adequately fund things like child protection services or school districts that struggle to adequately fund IEPs to pay large monetary judgments to individuals in cases where the discharge of the governmental function in question falls beneath thresholds set by Congress and the federal courts? On the one hand, if the violation was a one-off, what is the point of a large economic punishment? On the other hand, if the violations are systemic, does a monetary award to one party create an economic windfall to one or a vast monetary claim by many? Should we use monetary awards even when the risk of violating the underlying rights is difficult to articulate (the "clearly established" problem) and aren't particularly good subjects for risk pooling or insurance (resources that exist for many products and services in the private sector)? Very often resource scarcity plays a role in these cases -- what should we do when the monetary judgment from a 1983 case will not likely result in a larger pool of public funds to pay for the governmental obligation that led to a state actor committing a constitutional tort in the first place? And then, should we force those same defendants, as we do under 42 U.S.C. section 1988, to pay the prevailing attorneys, when the tort system that this remedy is modeled upon provides that attorneys fees come out of the judgment? Perhaps we should do all these things, but as Ms. Isgur came around to observing in the discussion, cries of "Justice!" are easy to voice, but limiting principles are hard to find.

    I don't disagree with the point that qualified immunity needs reform, but we should not elide the profoundly difficult policy choices involved in a federal right to personal injury lawsuits against state and local actors within a republican system of shared sovereignty. It's probably too much to hope that Congress will engage in thoughtful legislative inquiry and action in this area, as the podcast so ably points out in many other contexts. I do hope, however, that AO will bring more self-reflection to the conversation about qualified immunity in the future and will consider inviting a couple of experts on both sides to illuminate the arguments.

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  2. Chris Taylor

    Agree and resonate with the HBR article and Sarah and David’s commentary on the loneliness topic. I’m a consultant in a large firm and it’s very similar to the legal profession structure and experience. As an Associate, you do the equivalent of doc review and at every level all the way up to partner you work every waking hour and many hours you shouldn’t be. It requires all you have and more to keep from drowning. The stress level and consequences that result from your decisions are often very high and it can be isolating. As you said Sarah, it is the sense of “not being seen” and the pressure of extreme workloads under tight deadlines that are simply soul crushing at times. It’s almost impossible to explain to anyone what the role actually entails and I imagine lawyers feel the same way. While movies are made that create an awareness, I imagine it is difficult to find anyone who actually understands what you actually do and can “see you” in a way that connects. While highly lucrative, it comes with a price.

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    Bill Dyer (aka Beldar)

    Regarding naming your kid off items in the room: Was I the only person who thought of Mr. Kobayashi in "The Usual Suspects"?

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    Bill Dyer (aka Beldar)

    Immigration is at or near the top of the "Do your damn job, Congress!" list.

    But why would you think the Roberts Court, and especially the Institutionalists thereupon, would undertake the task of fixing qualified immunity, GIVEN THAT this is a judge-made doctrine that Congress could completely abolish, rewrite, or (shudder) ratify exactly as it chooses? It's a defense to a STATUTORY cause of action (section 1983) as to state actors anyway, and Bivens is now a zombie as to federal actors.

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  5. Randall Briggs

    Does it ever get past 17:17?

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    Danielle Webb

    I wholeheartedly agree with Sara about not going to law school. I think its often the choice of risk averse, type A, high academic achievers. I don't know a lot of happy lawyers despite being one myself. I have my own boutique immigration law firm and represent a lot of scientists, investors, religious groups and high profile folks. Think white glove, concierge service. My business is all referral based and my two big referral sources are former clients and my colleagues at large law firms. The key to my success and happiness is control, my own book of business and a very sophisticated international clientele who I form deep, personal years long relationships with. I make excellent money and don't work crazy hours. Sometimes there are nutty weeks but most of the time its very manageable and flexible.

    It is hard for me to convey how gratifying it is to call someone and tell them their green card has been approved. I've had clients burst into tears and tell me they love me. I also represent cutting edge start ups in nuclear fusion and materials sciences. If nuclear fusion becomes a reality here in the US there is a very strong possibility that I am the lawyer responsible for that scientist's visa that kept them and their scientific discoveries in the US. And don't get me started on how moving it is to attend naturalization interviews and ceremonies! The most patriotic Americans I know are the new ones.

    I get to see the impact that I make on my clients and my families. I am a 12th generation New Englander and I tell my clients that the only difference between them and me is that our families are starting our American journeys at different times. Mine started when my ancestor got off the boat in Boston in the 1600s and there's started whenever they got here by airplane!

    You can be an incredible lawyer but if you don't have clients it doesn't really matter. I tell everyone in law school or thinking about law school this -- what is your plan to get clients? That's where control and autonomy comes from.

    On the immigration policy front, every member of Congress I meet I tell them about the national security implications of making it so difficult for talented scientists to remain in the US. The Southern Border distortion makes it impossible to make progress on the things most Americans agree on. I have clients who have set up Canadian subsidiaries to near shore and retain talent because the US system is so inane.

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      Retired Prosecutor

      I spent 40+ years prosecuting in the state trial courts, the state appellate courts, and the federal courts in post-conviction remedy litigation. I loved every minute of it and had wanted to do it since I was 13. That being said, the typical lawyer job in a law firm doing billable hours -- the path of most lawyers -- would have quickly killed me.

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    PaulH

    I think Sarah has an overly idyllic view of the life of an investment banker. I-banking is both a customer service business and highly competitive sales job. So I-bankers have to be highly responsive to their clients and, whenever there is "down time", working on generating new business. So while I-bankers have no compunction dumping work on their lawyers at 5:00 pm, that doesn't mean they are going home. Particularly for the junior and mid-levels workers, I-banking involves long, grueling, and unpredictable hours -- typically late at night, over weekends and during holidays.

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  8. Perkins.Melissa

    Sarah, please do not worry about the baby's name, sometimes you just have to see them to know. With our first, we went in with a list and none of them fit her. We ended up using a name we thought would only be a good middle name. For our poor son, we didn't have a list. For medical reasons, we had chosen his delivery date of Nov 11 because of Veterans / Armistice Day and his momma is a historian. Our sweet nurse on hearing this suggested we think of a historical figure from WWI. Hence we have a John Joseph, after John J. Pershing, and an excellent story. Inspiration will come when you least expect it.

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  9. Annaknych1

    I love Sarah and David's perspective on elite law schools and Big Law, something that I have no experience in. However, I think the discussion about legal culture and whether to go to law school could benefit from expanding the discussion around the different types of legal practice. I do not mean the differences between litigation and transactional practice, but the differences between practicing in those areas in big law and practicing in those areas in a smaller setting. Most people will hire a lawyer at one time or another, but that lawyer will not be doing a multi-million dollar lawsuit, contesting a billion dollar will, or doing a high level merger and acquisition. Instead, it will be the lawyer on the corner who is drafting their will and POA, or helping them buy their house, or helping them sort through their divorce that has only $100,000 in assets, or evicting a tenant. In criminal law as well, the majority of crimes are state offences and those day-to-day interactions also are different than high profile federal prosecutions, and the majority of prosecutors and PDs working on those cases went to schools outside of the top 20.

    A legal practice built around those types of middle class transactions is very, very different, than what a big law job is. This type of legal practice is also vital to the functioning of the legal system. People needs wills, and to form LLCs for their handyman company, and to fight for custody of their child. My instinct is that these issues are the vast majority of legal work. I would be curious to see statistics showing what percentage of state court lawsuits are filed by the top 100 firms versus those filed by attorneys working in firms of 10 or less. These day-to-day issues are the things that my firm handles. Of course, the culture is firm dependent, and I think we work hard, but I am home for dinner with my kids every night and I have never worked past 10 at night. I probably only work after the kids are in bed once a week. I have fantastic job satisfaction and work/life balance. The other major advantage to this type of practice is that from the time I left law school I had direct client interaction, my own clients, have done my own litigation, and have never been stuck in a basement doing document review :-) Most of the small firms I know operate this way. The new associate probably gets handed most of the family law files, but they are his or her files, and they gain valuable experience that way. The level or responsibility is high, but for me that really increases my job satisfaction. The trade off of course is that I don't make big law money, but I am completely ok with that trade off.

    What I always ask prospective law students is whether they know where they want to practice geographically. If they want a big law job, then they should go to the highest ranked school they can where they can also do well. I doubt going to a 20th ranked school but ranking in the bottom quarter of the class is going to help cement that top job. But if they know geographically where they want to practice, go to a school there. I went to a mid-level school and which has been a fixture in the community for centuries. The local alumni network is strong (six of the seven county judges are also alums) and leads to jobs and connections that assist both me and my clients. If you know that you are interested in day-to-day practice, not the $215,000/year salary, pick a school with a good bar passage rate in a place you wouldn't mind living, and go there.

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  10. Maglyos

    I would love to hear your analysis on the recent lawsuit that Black and Hispanic teachers just won against NYC Schools for the discriminatory testing practices.

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