Academic Round-Up

Nancy Leong has posted “The Saucier Qualified Immunity Experiment: An Empirical Analysis on SSRN,” see here.  With the continued viability of Saucier hanging in the balance in Pearson v. Callahan, which will be decided this Term, Leong’s article is very timely.  In her 35-page article, Leong attempts to answer the question of whether Saucier has actually achieved its goal of increasing the adjudication of federal constitutional rights.  While Leong finds that Saucier has resulted in fewer cases in which federal courts are successful in avoiding constitutional questions, it has not resulted in fewer successful qualified immunity claims.  Rather than denying qualified immunity claims on the absence of a clearly established right, most federal courts are instead finding the absence of a constitutional violation under Saucier‘s first step.  Many Court-watchers believe that the Court will overrule Saucier in Pearson, but Leong’s analysis suggests that it may make little difference in the end.

Samuel Estreicher & Tristan Pellham-Webb have posted “The Wisdom of Soft Judicial Power: Mr. Justice Powell Concurring” on SSRN, see here.   The authors of this Article observe that rather than joining in majority opinions, Powell often wrote short concurring opinions that had a long-term impact on the direction of the law.  As the authors observe, Powell’s separate opinion was often viewed by lower courts as stating the holding of the Court.  Although more descriptive than analytical, this Article is interesting because we see much of the same behavior today from Justice Kennedy and even from Justice O’Connor during the earlier years of this decade.  I also highly recommend this short but highly readable article because it fits into some of my continuing work about how to interpret deeply-fragmented opinions of the Court and the power of the swing Justice.