There have been a couple of articles posted recently defending the doctrine of qualified immunity against criticisms such as mine in Is Qualified Immunity Unlawful?

One, from Aaron Nielson and Chris Walker, Qualified Immunity and Federalism, argues that states have developed extensive reliance on the current doctrine, which counsels in favor of keeping it for stare decisis purposes. (See this earlier piece from Nielson and Walker, also emphasizing stare decisis.)

The other, from Lawrence Rosenthal, Defending Qualified Immunity, argues that Congress delegated authority to the judiciary to create common-law defenses in civil rights cases. (See this earlier piece from Levin and Wells, arguing that Section 1983 is a “common law statute”).

In due course I may well have more extended responses to these articles, but for now I just wanted to note that there is a great tension between these two lines of defense. The stare decisis theory argues that the courts should simply stop messing with the doctrine because it’s Congress’s job, not the judiciary’s, to worry about whether the doctrine is lawful or sensible. The common-law theory argues that it’s a special responsibility of the judiciary’s to decide what the doctrine ought to be, and if anything would argue against diminished stare decisis.

I’m not fully convinced by either of these theories, but I hope anybody convinced by one will give some serious attention to the other, contradictory, one.