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111 Cal. L. Rev. 201 (2023)
Qualified Immunity's Flawed Foundation

handle is hein.journals/calr111 and id is 201 raw text is: Qualified Immunity's Flawed Foundation Alexander A. Reinert* Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court's quaified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction namely, that statutes in derogation of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983's silence regarding immunity should be taken as an implicit adoption of common law immunity defenses. As this Article shows, the Derogation Canon has no appropriate role to play in interpreting Section 1983. Courts and scholars have called it into question for more than a century. Even when courts have applied the canon, they have used it to disfavor displacement of common law claims, not common law defenses. And the Derogation Canon operates in inherent tension with a contrary canon: remedial statutes, like Section 1983, should be given a broad reading. This Article also identifies a second significant failing in the Court's qualified immunity law. For even if the Derogation Canon validly applied to defenses, the Reconstruction Congress that passed Section 1983 meant to explicitly displace common law immunities. Most critically, scholars and courts have overlooked the importance of the originally enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action. For unknown reasons, that provision was not DOI: https://doi.org/10.15779/Z38BK16Q68 Copyright © 2023 Alexander A. Reinert. * Max Freund Pmfessor of Litigation & Advocacy, Benjamin N. Carlozo School of Law. For their comments on earlier iterations of this Article, I am deeply grateful to Karen Blum, Alan K. Chen, Kevin M. Clermont, Will Crozier IV, Michael C. Dorf, Avlana Eisenberg, Brandon L. Garrett, James Grimmelmann, Michael E. Herz, Ion Moyn, James E. Pfander, Adele Quigley-McBride, Teressa Ravenell, Joanna C. Schwartz, Fred Smith, Jr., Stewart Sterk, and Jennifer Teitcher. For her insights on canons of statutory construction, I owe particular thanks to Anita S. Krishnakumar. For their suggestions regarling the relevance of nineteenth-century common law, I am indebted to John C. P. Goldberg, Anthony J. Sebok, and Benjamin C. Zipursky. 201

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