![]() ![]() In other words, the problem with current qualified immunity doctrine is not just that it departs from the common law immunity that existed in 1871. But this Article shows that qualified immunity is flawed from the ground up. Much of current qualified immunity scholarship has addressed, in compelling fashion, how the Court has taken the immunity doctrine too far from its common law origins. Taken together, these twin insights show that the problems with the Court’s immunity doctrine run deeper than prior scholarly criticism has imagined. This Article is the first to demonstrate the implications of the lost text of Section 1983. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilation of federal law in 1874. Most critically, scholars and courts have overlooked the importance of the originally enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action.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 even if the Derogation Canon validly applied to defenses, the Reconstruction Congress that passed Section 1983 meant to explicitly displace common law immunities. This Article also identifies a second significant failing in the Court’s qualified immunity law. And the Derogation Canon operates in inherent tension with a contrary canon: remedial statutes, like Section 1983, should be given a broad reading. Even when courts have applied the canon, they have used it to disfavor displacement of common law claims, not common law defenses. ![]() Courts and scholars have called it into question for more than a century. As this Article shows, the Derogation Canon has no appropriate role to play in interpreting Section 1983. § 1983’s silence regarding immunity should be taken as an implicit adoption of common law immunity defenses. Applying the Derogation Canon, the Court has held that 42 U.S.C. First, this Article demonstrates that the Supreme Court’s qualified 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. This Article takes aim at the roots of the doctrine-fundamental errors that have never been excavated. OL16526897W Page_number_confidence 94.50 Pages 620 Pdf_module_version 0.0.20 Ppi 300 Rcs_key 24143 Republisher_date 20201102132445 Republisher_operator Republisher_time 290 Scandate 20201029190523 Scanner Scanningcenter cebu Scribe3_search_catalog isbn Scribe3_search_id 0471180246 Tts_version 4.Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. Access-restricted-item true Addeddate 03:06:09 Associated-names Kirklin, John E., author Boxid IA1991507 Camera USB PTP Class Camera Collection_set printdisabled External-identifier
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