The Supreme Court has described the “driving force” behind qualified immunity to be its power to dismiss “insubstantial” cases before discovery and trial. Yet in a prior study of 1183 Section 1983 cases filed in five federal districts around the country, I found that just seven (0.6%) were dismissed at the motion to dismiss stage and just thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. These findings undermine assumptions about the role qualified immunity plays in filed cases, but leave open the possibility that qualified immunity serves its intended role by screening out insubstantial cases before they are ever filed. Indeed, some have raised this possibility as reason to maintain the status quo. This Article tests this alternative justification for qualified immunity. It reports the results of the largest and most comprehensive study to date of the role qualified immunity doctrine plays in attorneys’ decisions to file civil rights suits, combining my prior study of 1183 cases with surveys of ninety-four attorneys who entered appearances in these cases, and in-depth interviews of thirty-five of these attorneys. I find that qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case selection decisions. Attorneys do not reliably decline cases vulnerable to attack or dismissal on qualified immunity grounds. And when lawyers do decline cases because of qualified immunity, they do not appear to be screening out “insubstantial” cases under any plausible definition of the term. These findings enrich our understanding of the role qualified immunity plays in civil rights cases, contribute to mounting evidence that qualified immunity doctrine fails to achieve its intended policy goals, and support growing calls to better align doctrine with the realities of constitutional litigation.
{"title":"Qualified Immunity's Selection Effects","authors":"Joanna C. Schwartz","doi":"10.2139/SSRN.3222797","DOIUrl":"https://doi.org/10.2139/SSRN.3222797","url":null,"abstract":"The Supreme Court has described the “driving force” behind qualified immunity to be its power to dismiss “insubstantial” cases before discovery and trial. Yet in a prior study of 1183 Section 1983 cases filed in five federal districts around the country, I found that just seven (0.6%) were dismissed at the motion to dismiss stage and just thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. These findings undermine assumptions about the role qualified immunity plays in filed cases, but leave open the possibility that qualified immunity serves its intended role by screening out insubstantial cases before they are ever filed. Indeed, some have raised this possibility as reason to maintain the status quo. \u0000 \u0000This Article tests this alternative justification for qualified immunity. It reports the results of the largest and most comprehensive study to date of the role qualified immunity doctrine plays in attorneys’ decisions to file civil rights suits, combining my prior study of 1183 cases with surveys of ninety-four attorneys who entered appearances in these cases, and in-depth interviews of thirty-five of these attorneys. I find that qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case selection decisions. Attorneys do not reliably decline cases vulnerable to attack or dismissal on qualified immunity grounds. And when lawyers do decline cases because of qualified immunity, they do not appear to be screening out “insubstantial” cases under any plausible definition of the term. These findings enrich our understanding of the role qualified immunity plays in civil rights cases, contribute to mounting evidence that qualified immunity doctrine fails to achieve its intended policy goals, and support growing calls to better align doctrine with the realities of constitutional litigation.","PeriodicalId":106562,"journal":{"name":"LSN: Procedural Issues (Topic)","volume":"503 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116171488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing, was widely viewed as a victory rather than a defeat for plaintiffs, because the Court held that such after-acquired evidence of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial of relief for victims of discrimination, it is surprising that there has been little academic inquiry into the actual effects of McKennon on discrimination claims. This Article documents how the after-acquired evidence doctrine of McKennon plays a troubling, role in civil rights litigation: it shifts the focus of the discussion off the employer's illegal acts and onto the worthiness of the plaintiff; and it chills full enforcement of discrimination laws. Using both an empirical analysis of judicial decisions and a series of interviews with attorneys, this Article uncovers new evidence that employers most often seek to limit a plaintiff's remedies based on evidence of relatively minor transgressions, most commonly resume fraud, that would not likely have been discovered had the plaintiff not sued to challenge employment discrimination. Further, both the data from judicial opinions and the evidence from practicing attorneys suggest that the potential for disclosure of negative personal and professional information dissuades plaintiffs from pursuing even meritorious claims of discrimination. From its inception, the after-acquired evidence defense has prompted concern from a small number of critical voices that it carried potential as a tool for abuse of employees seeking to vindicate their rights. The evidence offered in this Article vindicates these concerns, and raises serious doubts about the continued existence of the doctrine. Acknowledging how unlikely the defense is to be abolished, this Article concludes that these concerns should alternatively prompt litigants and courts to recognize claims of illegal retaliation when employers misuse the after-acquired evidence doctrine by asserting the defense frivolously to deter plaintiffs from pursuing discrimination claims.
{"title":"Retaliatory Litigation Tactics: The Chilling Effects of After-Acquired Evidence","authors":"M. Hart","doi":"10.2139/ssrn.1013587","DOIUrl":"https://doi.org/10.2139/ssrn.1013587","url":null,"abstract":"Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing, was widely viewed as a victory rather than a defeat for plaintiffs, because the Court held that such after-acquired evidence of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial of relief for victims of discrimination, it is surprising that there has been little academic inquiry into the actual effects of McKennon on discrimination claims. This Article documents how the after-acquired evidence doctrine of McKennon plays a troubling, role in civil rights litigation: it shifts the focus of the discussion off the employer's illegal acts and onto the worthiness of the plaintiff; and it chills full enforcement of discrimination laws. Using both an empirical analysis of judicial decisions and a series of interviews with attorneys, this Article uncovers new evidence that employers most often seek to limit a plaintiff's remedies based on evidence of relatively minor transgressions, most commonly resume fraud, that would not likely have been discovered had the plaintiff not sued to challenge employment discrimination. Further, both the data from judicial opinions and the evidence from practicing attorneys suggest that the potential for disclosure of negative personal and professional information dissuades plaintiffs from pursuing even meritorious claims of discrimination. From its inception, the after-acquired evidence defense has prompted concern from a small number of critical voices that it carried potential as a tool for abuse of employees seeking to vindicate their rights. The evidence offered in this Article vindicates these concerns, and raises serious doubts about the continued existence of the doctrine. Acknowledging how unlikely the defense is to be abolished, this Article concludes that these concerns should alternatively prompt litigants and courts to recognize claims of illegal retaliation when employers misuse the after-acquired evidence doctrine by asserting the defense frivolously to deter plaintiffs from pursuing discrimination claims.","PeriodicalId":106562,"journal":{"name":"LSN: Procedural Issues (Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125151313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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