Qualifying Qualified Immunity: When Adjudications Are Unfairly Retroactive

In a post yesterday, I introduced a series on The Fair Notice Rationale for Qualified Immunity, a paper that will be published by the Florida Law Review. The paper explores the extent to which fairness to officers supports the doctrine of qualified immunity. (For a primer on the doctrine, see my post yesterday.)

The first step of the argument requires a relatively deep dive into jurisprudence to explore the principle of prospectivity and its application to adjudication. What makes retroactive laws unfair? Are adjudications—decisions by courts—ever unfair in the same way, and if so, what makes them unfair? My discussion of this issue contributes to the literature on legal theory—it may not be right in every detail, but it poses some important questions that deserve answers.

The principle of prospectivity—that laws should ordinarily apply only prospectively, not retroactively—is a basic requirement of the ideal of the rule of law. Most people have an intuitive sense that it is unfair to be punished for something you could not have known was forbidden. The norm isn't only theoretical—its deeply ingrained in our law. The Ex Post Facto Clauses and Contract Clauses of the US Constitution prohibit some kinds of retroactive laws and statutes affecting private rights are presumed to apply prospectively.

Retroactive laws are widely considered to be unfair because they deprive people of the ability to make and follow through on their plans. Rather than treat people as self-directing agents who are worthy of participating in a regime of self-government, they treat them as means to whatever the government's ends may be. They are in tension with the ideal of the rule of law and unfair.

Yet suits against government officers do not, strictly speaking, involve retroactive laws; they involve adjudications, the application of pre-existing law to past conduct. In one sense adjudication is always retrospective – it always applies a rule to conduct that already happened. What my paper explores is whether the reasons retroactive law are unfair apply with equal force, or at least to some extent, to some adjudications, and, if so, whether some constitutional adjudications fall into that category.

Legal theorists usually consider the retroactivity of adjudication inscrutable because it depends on the answer to an underlying question, namely "When does a court 'make' law rather than merely apply it?" Theorists offer competing answers, but the question is perhaps irresolvable. To oversimplify, consider three fairly common responses. Suppose you take a hard realist view of what judges do. The professional and institutional norms might limit judicial discretion but judges generally do what they want. On this view, adjudications are little different than legislation. This clearly raises concerns about fairness to litigants. All that can be said for this perspective is that we generally tolerate that sort of unfairness, perhaps because there are no good alternatives.

By contrast, consider the classic Blackstonian view of adjudication. Courts simply enforce the law; they don't make it. There is no retroactivity problem, no unfairness. A modern version of this would be a theory that holds that there are always, or almost always, right answers, even in hard cases. Ronald Dworkin's view of adjudication and some theories of originalism are "right answer" theories. Under a right answer theory, adjudication never raises fairness concerns, at least so long as the judge is able to discern the right answer. Theorists recognize, though, that even if every legal question has a "right answer" in theory, no judge is perfect. A wrong answer might well impose a new rule (because it is not the right one) retroactively.

The most common modern view is that most judges are in fact doing something called law, some stylized, professional form of reasoning that reduces policy discretion, but that there are cases of unusual legal indeterminacy. In those cases, the law does not lead to one right answer and raises a greater risk of error.

Note that all three of these theories of judging admit some degree of judicial discretion, at least on the margins, because of legal indeterminacy, as a form of error, or as some combination of the two. Such discretion leads to legal unpredictability. Taking a cue from an article by Richard Fallon and Daniel Meltzer (in New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731 (1991)), my piece argues that the touchstone for unfairness ought to be the relative unpredictability of liability, not whether the court is "making law." This eliminates the metaphysical question of what counts as law and centers the inquiry on what makes retroactive law unfair: the fact that it deprives subjects of the ability to plan.

 

In light of this, I suggest what I think is an improvement on Fallon and Meltzer's theory of predictability. They say that we should measure the predictability of an adjudication from the standpoint of a reasonably capable lawyer. I think that is fair when the person subject to liability is a lawyer or perhaps a well-lawyered organization, but not when the person subject to liability is a layperson. Otherwise the judgment is what Jeremy Bentham called "dog law." It is no different than how we discipline dogs: the first time they do something they shouldn't, we discipline them to train them not to do it again. This may be acceptable for dogs, but it is no way to treat rational folks otherwise capable of planning their lives. Note that the predictability will depend on the defendant's relationship to the law. For constitutional cases, there is probably a spectrum, with members of the "Supreme Court bar" at one end of the spectrum and ordinary lay people at another. Most government agents are probably somewhere in the middle.

So, some adjudications do raise the same concerns about unfairness that are raised by retroactive law: those that impose liability for past conduct that the defendant could not have reasonable predicted. So far, my argument has focused only on whether some adjudications are ever unfair. The question of whether constitutional liability—or some instances of constitutional liability—are unfair to officers is the question I'll take up tomorrow.

Comments

[qetzal]

I think the question of whether constitutional liability is ever unfair to officers is a red herring, for two reasons.

First, if officers are ever to be held constitutionally liable, there will inevitably be cases where the outcome is unfair to an officer. The only way to prevent that is to never hold an officer or government employee liable for anything.

The bigger problem is in trying to address unfairness to officers without considering unfairness to the people they affect. Trying to ensure that officers are*never* subjected to unfair liability virtually guarantees greater unfairness to ordinary citizens.

I submit that the more relevant question is not whether there will be instances of unfairness toward either group. That’s inevitable. The questions are what is the (approximate) right balance, and how do we decide that in specific situations.

[rsteinmetz]

It seems to me the current system is radically tilted against ordinary citizens, in the case of police their advantages over ordinary citizens are multiplied by systemic bias in their favor and by the probably that once the bad behavior begins it may serially affect many ordinary citizens who have little or no recourse. Limiting QI is one mechanism for countering system bias and restoring balance to the system.

[Aemon McGarret]

Two posts in, and A LOT of words to say almost nothing. Judging is always subjective. There is no way round it. Judges are people, with human understanding. This level of deep dive philosophizing gets pretty absurd. And is very removed from anything in "the real world". Wonky discussions of whether adjudications are or are not "making law", and whether there is "inherent unfairness" involved & how to measure it. We are talking about obvious abuses of power here. And the balances necessary for police & officials to be able to use the power they need to do their job. I don't see this as very useful to the qualified immunity discussion as it exists in our society. Just amusing word games & picking nits.

[ReaderY]

I think Professor Chapman is making a legitimate point. But I agree he could make it more briefly, and this post isn’t really adding a whole lot to what he said in his last one.

[EscherEnigma]

Call me when judges start saying "I am granting qualified immunity. Now to continue with the trial to establish precedent."

If they did that, they could be both "fair" to the delinquent government actor and establish precedent so it's "fair" to expect other government actors not be so delinquent in the future.

But they don't do that: it's all or nothing. Either there's no similar-enough case, and so there can never be one, or it doesn't apply, and never did. It's an obvious Catch-22, and thus the whole thing is a farce.

[MatthewSlyfield]

"Call me when judges start saying "I am granting qualified immunity. Now to continue with the trial to establish precedent.""

In my opinion they ought to have to do that the other way around. Establish precedent first, then they can consider granting QI.

[Aemon McGarret]

If we are talking about fairness & predictability, the American criminal justice & legal system pretty much sucks. And is very responsive to power. Empowered people are served by the law but are not constrained by it. Unempowered people are constrained by the law, but not served by it. We do better than most systems. But the system is actively hostile to value judgements. Which is a sure road to institutional abuse. "I was just following orders". "The words left me no choice". Words cannot hold reality. And we take them WAY too seriously. You cannot define nor find Justice in words. Nor can you find & define exactly where legitimate use of power becomes abuse of power. Those understandings need a more explicit voice & place in our system. The claim that NOT seeking justice while interpreting law, is less subjective, less arbitrary, & ultimately more fair doesn't hold much water. Qualified Immunity is a very clear example of this. So is the Justice Alito's position on the rights of pregnant women in our society.
Judge Roy Bean, the law west of the Pecos can't be much less capricious & unfair than most regular folks dealing with police & courts in this country under qualified immunity.

[jdgalt1]

You're certainly right that the rule against retroactivity is based on a duty on the part of the legal system to have the law be predictable, so that a person who has learned the law and follows it can be safe from it.

But you've omitted to account for the major condition on which that safety depends -- the rule that ignorance of the law is no excuse.

If you or I think we have learned the law, but our knowledge is not up to date and as a result we break it, we're out of luck. But the doctrine of QI has currently practiced says that a police officer in the same position is not out of luck -- he is protected. And that is nuts.

The policeman is a professional, trusted with the ultimate power to enforce the law on us. As such, it is obviously morally imperative that "ignorance of the law is no excuse" must apply MORE strictly to him than it does to you and me. Not one bit less strictly, ever.