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It's important to clarify. "Qualified Immunity" is NOT a law. It is judicial precedent. That means the Supreme Court made this up and courts don't go against pr

It's important to clarify. "Qualified Immunity" is NOT a law. It is judicial precedent. That means the Supreme Court made this up and courts don't go against prior rulings except in rare cases. Sometimes Congress creates laws to confirm judicial rulings or go against them and clarify their intentions. The Supreme Court has ruled a lot of things that we would not allow to stand today. For instance, the Dred Scott Case [1] "In a landmark case, the United States Supreme Court decided 7–2 against Scott, finding that neither he nor any other person of African ancestry could claim citizenship in the United States, and therefore Scott could not bring suit in federal court under diversity of citizenship rules. Moreover, Scott's temporary residence outside Missouri did not bring about his emancipation under the Missouri Compromise, as the court ruled this to have been unconstitutional, as it would "improperly deprive Scott's owner of his legal property". [1] https://en.wikipedia.org/wiki/Dred_Scott https://en.wikipedia.org/wiki/Dred_Scott

nickff 6y ago
There is a difference between law and legislation; qualified immunity is law, but not legislation (that I know of).
- apoverton 6y ago
  According to Wikipedia Legislation = Legislation (or statutory law) is law which has been promulgated (or "enacted") by a legislature or other governing body or the process of making it Qualified Immunity = Qualified immunity is a legal doctrine in United States federal law Legal doctrine = A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case So it's a bit of a grey area, but I think the greater point stands that this is how court cases are decided vs. a law in the traditional sense that people think about laws.
  - nickff 6y ago
    In most of the English-speaking world, the vast majority of law is not legislation. Regulations and common law precedents are vast, and make up much more of our law than does legislation. This may not be true in other areas, I know that many countries (and Quebec) have civil law, where legislation is more extensive.
    - btilly 6y ago
      Quebec and Louisiana both. Common law is common in the English speaking world because it is derived from common law as practiced in England. However both Quebec and Louisiana were acquired from France and kept the French legal system. (OK, Quebec lost French law, and then was given it back so that they wouldn't rebel and become part of the USA.) In Europe broadly, civil law is more common.
  - NovemberWhiskey 6y ago
    It's not really a grey area. Common law, which is to say law that is not codified but defined by judicial decision making, is law "in the traditional sense that people think about laws" just as much as statute law. In Michigan, for example, murder is a common law offense: no legislation exists that defines what murder is, although penalties etc. are legislated.
downerending 6y ago
"made this up" is a bit pejorative. The also "made up" modern abortion rights and gay marriage. A law professor would probably say that they decided that prior interpretation was unjust/unconstitutional and made a change.
- supercanuck 6y ago
  You could teach a whole course on Roe alone. Let's not just generalize a monumentus court decision like that with a hand wave.
  - andrewflnr 6y ago
    That's rather the point of GP, but applied to QI instead of Roe.
  - rayiner 6y ago
    Not to mention, two of the champions of Roe (O’Conner and Ginsberg) have thrown its reasoning under the bus.
    - bhupy 6y ago
      Do you have any resources on that? I find this genuinely interesting.
      - selimthegrim 6y ago
        RBG has always been a fan of abortion rights via incorporating the privileges and immunities clause of the 14th Amendment to the states, a path blocked after the 19th century Slaughterhouse cases. Reva Siegel at Yale Law School is good to read about this.
        selimthegrim 6y ago
        *privileges or immunities clause, sorry (Not to confuse this with Article IV of the Constitution). And I guess RBG wants to use the equal protection clause directly.

nickff 6y ago

There is a difference between law and legislation; qualified immunity is law, but not legislation (that I know of).

apoverton 6y ago
According to Wikipedia Legislation = Legislation (or statutory law) is law which has been promulgated (or "enacted") by a legislature or other governing body or the process of making it Qualified Immunity = Qualified immunity is a legal doctrine in United States federal law Legal doctrine = A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case So it's a bit of a grey area, but I think the greater point stands that this is how court cases are decided vs. a law in the traditional sense that people think about laws.
- nickff 6y ago
  In most of the English-speaking world, the vast majority of law is not legislation. Regulations and common law precedents are vast, and make up much more of our law than does legislation. This may not be true in other areas, I know that many countries (and Quebec) have civil law, where legislation is more extensive.
  - btilly 6y ago
    Quebec and Louisiana both. Common law is common in the English speaking world because it is derived from common law as practiced in England. However both Quebec and Louisiana were acquired from France and kept the French legal system. (OK, Quebec lost French law, and then was given it back so that they wouldn't rebel and become part of the USA.) In Europe broadly, civil law is more common.
- NovemberWhiskey 6y ago
  It's not really a grey area. Common law, which is to say law that is not codified but defined by judicial decision making, is law "in the traditional sense that people think about laws" just as much as statute law. In Michigan, for example, murder is a common law offense: no legislation exists that defines what murder is, although penalties etc. are legislated.

downerending 6y ago

"made this up" is a bit pejorative. The also "made up" modern abortion rights and gay marriage. A law professor would probably say that they decided that prior interpretation was unjust/unconstitutional and made a change.

supercanuck 6y ago
You could teach a whole course on Roe alone. Let's not just generalize a monumentus court decision like that with a hand wave.
- andrewflnr 6y ago
  That's rather the point of GP, but applied to QI instead of Roe.
- rayiner 6y ago
  Not to mention, two of the champions of Roe (O’Conner and Ginsberg) have thrown its reasoning under the bus.
  - bhupy 6y ago
    Do you have any resources on that? I find this genuinely interesting.
    - selimthegrim 6y ago
      RBG has always been a fan of abortion rights via incorporating the privileges and immunities clause of the 14th Amendment to the states, a path blocked after the 19th century Slaughterhouse cases. Reva Siegel at Yale Law School is good to read about this.
      - selimthegrim 6y ago
        *privileges or immunities clause, sorry (Not to confuse this with Article IV of the Constitution). And I guess RBG wants to use the equal protection clause directly.