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Pearson v. Callahan Handed Down, Saucier v. Katz Unanimously Overruled:
The Supreme Court has handed down Pearson v. Callahan, the Fourth Amendment/ qualified immunity case on which I wrote the cert petition and merits briefs, reversing the Tenth Circuit unanimously in a decision by Justice Alito. The Court ruled that the officers were entitled to qualified immunity but that it would not reach the Fourth Amendment merits, taking this case as an opportunity to overturn the "order of battle" requirements of Saucier v. Katz (which had held that in a civil case with qualified immunity issues, courts must first decide the constitutional question and only then determine whether qualified immunity protected the government officials). The relative surprise, at least to me, was that the overruling of Saucier was unanimous and no one filed a concurring opinion.

  The overruling of Saucier is big news for the world of constitutional torts. The new regime restores the discretion of the "order of battle" to the lower courts to decide the constitutional and qualified immunity issues in the order that they believe is best. From the opinion:
Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking will best facilitate the fair and efficient disposition of each case. . . . Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases.
(Sorry, link fixed, and comments, too, I hope.)
Hoosier:
Look up and down this site!

Comment threads are shut! Or gone into the Memory Hole!

Obama isn't in office even 24 hours, and already he's shutting down conservative speech.
1.21.2009 11:08am
Terrivus:
Congrats. Haven't read the opinion yet, but it is indeed surprising that there were no dissents or concurrences (including from AMK, who if I recall was the primary defender (slash original author?) of the Saucier rule).
1.21.2009 11:09am
Oren:
This is horrific. You can only get past QI if the law is clear and you can't clarify the law if there is QI because the court will just dispose of your suit.

Even Kafka would blush at such an absurd train of logic.

/rant
1.21.2009 11:30am
Guest44:
I guess I'm wrong on this point, given the 9-0 vote, but it seems like a bad change to me. The substantive portion of the opinion itself demonstrates the flaw with abandoning Saucier: we now do not know whether consent-once-removed doctrine is good law in the Tenth Circuit, much less nationally. Getting rid of Saucier will likely create long periods of uncertainty in the law because the cases that could clarify a given doctrine will instead go out on the "clearly established" prong.


Isn't it odd that the Court didn't adopt a reverse-Saucier rule, given the Chief's statement that "not necessary to decide" an issue = "necessary not to decide" it? Any time a case goes out on the second prong, the first prong's analysis becomes dicta (at best) or an advisory opinion.(at worst).
1.21.2009 11:36am
Viceroy:
Restoring discretion seems like it could go both ways - judges who are inclined to give the govt. less room will approach the question one way and judges who are inclined to give the govt. a break will approach it another way. The answer is probably more complicated, but it seems like this could explain why Justices on both sides signed on. It seemed like a sea-change but I'm curious as to whether its effects will really be felt at the trial levels.
1.21.2009 11:43am
Viceroy:
Oh - and congrats on the win.
1.21.2009 11:44am
Virginia 1L (mail):

Any time a case goes out on the second prong, the first prong's analysis becomes dicta (at best) or an advisory opinion.(at worst).


That's not entirely accurate. If the first prong's analysis shows that the case could have "gone out" on the first prong also, then it's considered an alternative ground for resolution of the case and thus not dicta.
1.21.2009 11:49am
Guest44:
VA1L, I may not understand you or you may not understand me. What I'm saying is that when a court clarifies or creates new law by holding there was a constitutional violation (prong 1), but then holds that the right was not clearly established at the time of the event, so there can be no liability (prong 2), the prong 1 holding is dicta or an advisory opinion. It's not necessary to the "no liability" holding, making it dicta, and its only purpose is to educate future officers, making it advisory. Under the Chief's logic I quoted above, a mandatory reverse-Saucier rule would be preferable to a rule allowing lower courts to set their own sequence on a case-by-case basis.
1.21.2009 11:54am
David Schwartz (mail):
Oren: Would you rather have critical legal questions about fundamental rights decided in a case where one party is the government and the other has no stake in the outcome?
1.21.2009 11:57am
Virginia 1L (mail):
Sorry about that Guest44. Seems I misunderstood what sense you were using "prongs" (I had a narrower view in mind).
1.21.2009 11:58am
Guest44:
David Schwartz, can you explain why the litigant has no stake in the outcome? At the briefing stage, the 1983 plaintiff will assert both a rights violation and that the right was clearly established. If he can prove both he may win a judgment.
1.21.2009 12:00pm
Chris 24601 (mail) (www):
If QI-only decisions become common, it seems much less likely that the SCOTUS will make much substantive law, because if a question of law is sufficiently difficult to produce a circuit split, it's unlikely that a plaintiff can beat the QI point spread.
1.21.2009 12:13pm
CVMe:

we now do not know whether consent-once-removed doctrine is good law in the Tenth Circuit, much less nationally.


I don't think that's right. The Tenth Circuit's opinion that it's unconstitutional for informants still stands. Its decision denying qualified immunity is reversed, but on the "clearly established" ground, not on the Fourth Amendment.

The case is a victory for these Petitioners, but not for Petitioners' view of the law: Not only is consent-once-removed still illegal in the 10th Circuit, it's clearly established that it's illegal there too. Outside of the Saucier issue, it appears that Pearson stands for the proposition that police may rely on out-of-circuit and lower court opinions establishing the constitutionality of a practice, but only until it is decided in their circuit.
1.21.2009 12:17pm
krs:
First thing I looked for was to see if they cited Judge Leval's NYU LRev article, and there it is at page 9.

Saucier was well-intentioned, but it needed to go.
1.21.2009 12:24pm
Oren:
(Also, congrats on the big win despite my dissent ... perhaps that came out rude but I assure you that wasn't the intent).
1.21.2009 12:24pm
Kedar Bhatia (mail) (www):
Its impressive to see a 5-4 opinion get reversed 9-0 only eight years later. Congrats.
1.21.2009 12:27pm
Alec Dawson (mail):
I apologize in advance if this is off topic... didn't know where to post this...

I'd like to see a new blog entry regarding SCOTUS's decision regarding Mukasey vs. ACLU.


What does this ruling mean for people who produce art?
1.21.2009 12:29pm
Guest44:
CVMe: Valid point for this case. The Court did not vacate the 10th Circuit's holding on the substantive law. That raises another question--why not? The circuit split is staring them in the face on the consent-once-removed doctrine, but they decline to resolve it because the case goes out on the "clearly established" prong. It is itself an example of the delay in resolving important questions of law that Saucier talked about.

I think my broader point also stands because (it seems to me)most district and circuit judges will avoid the first prong if at all possible, notwithstanding Pearson's dicta that it's usually better to do the first prong first. The law will be allowed to remain murky.
1.21.2009 12:29pm
Oren:

Oren: Would you rather have critical legal questions about fundamental rights decided in a case where one party is the government and the other has no stake in the outcome?

Depends on the alternative.

It's certainly better than my worst fears about this decision: that courts will never reach the merits in any case involving unsettled law because they can dispose on QI.

Perhaps I should be more circumspect and ask you (or Orin or anyone else that wants to chime in) how you believe unsettled law will become settled under the new precedent.
1.21.2009 12:29pm
CVMe:
krs: Maybe AMK decided to throw the rest of the Court a bone on this one since he gets to decide all the 5-4's.
1.21.2009 12:30pm
Guest44:

Also, congrats on the big win despite my dissent


Ditto, congrats, Orin.
1.21.2009 12:30pm
CVMe:
"Would you rather have critical legal questions about fundamental rights decided in a case where one party is the government and the other has no stake in the outcome?"

Would you have a critical legal question about the availability of remedies for violations of fundamental rights be decided in a case where neither party is the government and neither party has any stake in the outcome (as here for the Saucier issue)?
1.21.2009 12:34pm
Oren:

Not only is consent-once-removed still illegal in the 10th Circuit, it's clearly established that it's illegal there too.

Isn't that dicta at this point? It is a holding that has no bearing on the disposition of the case or controversy.
1.21.2009 12:35pm
The Cabbage (mail):
I wrote the cert petition and merits briefs, reversing the Tenth Circuit unanimously

Show off ;)
1.21.2009 1:02pm
David M. Nieporent (www):
It's certainly better than my worst fears about this decision: that courts will never reach the merits in any case involving unsettled law because they can dispose on QI.

Perhaps I should be more circumspect and ask you (or Orin or anyone else that wants to chime in) how you believe unsettled law will become settled under the new precedent.
As the Court itself notes:

More-over, the development of constitutional law is by no means entirely dependent on cases in which the defendant may seek qualified immunity. Most of the constitutional issues that are presented in §1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases and §1983 cases against a municipality, as well as §1983 cases against individuals where injunctive relief is sought instead of or in addition to damages. See Lewis, 523 U. S., at 841, n. 5 (noting that qualified immunity is unavailable “in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion”).
1.21.2009 1:06pm
Joey Plummer (mail):
Someone get these cops to a marketing specialist....

"The Central Utah Narcotics Task Force"....?
1.21.2009 1:11pm
David M. Nieporent (www):
Joey: I noticed that one too; I was wondering what their letterhead looked like.
1.21.2009 1:18pm
Guest44:
I don't find the prospective relief theory convincing at all. It would be extremely rare to have someone sue to enjoin "consent once removed" searches in a jurisdiction. Among other practical problems, who would have standing?

Nor do I find the municipality suit theory convincing. Under Monell, you can only get relief if it was a policy. If officers go around doing things like this without it being policy or custom, there is claim against the municipality.

The only real avenue is the criminal one--exclusionary hearings. Not sympathetic plaintiffs. I'd much rather have individual liberty law created by cases in which the guilt or innocence of the plaintiff for a crime is not an issue.
1.21.2009 1:27pm
Profane (mail) (www):

The Tenth Circuit's opinion that it's unconstitutional for informants still stands.


Is it? The following bit from the decision seems to leave us with a standing circuit split:


It had been accepted by every one of those courts. Moreover, the Seventh Circuit had approved the doctrine’s application to cases involving consensual entries by private citizens acting as confidential informants. See United States v. Paul, 808 F. 2d, 645, 648 (1986). The Sixth Circuit reached the same conclusion after the events that gave rise to respondent’s suit, see United States v. Yoon, 398 F. 3d 802, 806–808, cert. denied, 546 U. S. 977 (2005), and prior to the Tenth Circuit’s decision in the present case, no court of appeals had issued a contrary decision.



Tell this non-lawyer why he is wrong. . .
1.21.2009 1:33pm
CMH:
"The overruling of Saucier is big news for the world of constitutional torts."

In the abstract, I'd have to agree. Almost any time the Court overrules a past opinion is a big deal in whatever field is at issue, even more so when the overruling is done by a unanimous court and the overruled decision is as recent as Saucier.

But as a practical matter, it seems to me that only time will tell how significant this decision turns out to be. If district courts and COAs read it (as I do) as an admonition that the Saucier two-step should continue to be the general rule - and only the exceptions or the unusual cases should be disposed of otherwise - then we may not see much practical effect. If the lower courts read it to the contrary and allow the exceptions to swallow up the general rule, then it could well be one of the most far-reaching decisions in the last 10 years or so.

Maybe it's a measure of naïveté on my part, but I'm taking a wait-and-see approach on how this plays out in the lower courts.
1.21.2009 2:02pm
Mike& (mail):
On a personal note: Congrats, Orin.

On a doctrinal note: This case is a complete disaster.
1.21.2009 2:07pm
OrinKerr:
CVMe writes:
The Tenth Circuit's opinion that it's unconstitutional for informants still stands. Its decision denying qualified immunity is reversed, but on the "clearly established" ground, not on the Fourth Amendment.
Do you have a cite for your conclusion that the 4th Amendment analysis still stands?
1.21.2009 2:09pm
Mike& (mail):
Most of the constitutional issues that are presented in §1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases

In criminal cases where there is a good constitutional issue, the courts never hear it. Instead, the prosecutor offers a sweet plea bargain: "If you waive your Fourth Amendment claim, we'll give you fewer years in prison." Sometimes prosecutors will even dismiss criminal charges all together, to avoid the creation of bad law. I am sure someone someone who has NEVER litigated a criminal or Section 1983 case will say I'm wrong. But there is no honest prosecutor who will deny what I have just said.

Governments are much more willing to shave a few years off of a prison sentence in a criminal case than they are to write checks in civil cases. So you do not get great development in the law of Section 1983 through criminal cases.

§1983 cases against a municipality,

You have to show that a policy or custom was the moving force behind the rights violation. Showing a policy or custom is extremely difficult. So courts will not even reach the rights violation issue in most cases against municipalities.

as well as §1983 cases against individuals where injunctive relief is sought instead of or in addition to damages

City of Los Angeles v. Lyons, anyone?

This is the most disingenuous comment of them all. It reveals intellectual dishonesty or ignorance of the law.

You can't get injunctive relief unless you can show that your rights are going to be violated in the future. People can almost NEVER show this, thanks to the Court's rules. So the law does not get developed through injunctive relief. Again, just read City of Los Angeles v. Lyons if you think I'm making this stuff up.
1.21.2009 2:15pm
Dave N (mail):
Interestingly, Saucier, like Pearson, involved a Circuit Court (in Saucier's case, the Ninth) refusing to find qualified immunity and being unaninimously reversed by the Supreme Court.

It should be noted that the principle holding of Saucier was decided by a 6-3 vote (Ginsberg, Stevens, and Breyer concurred in the result but dissented from the holding). Souter agreed with the majority analysis but thought the case should be remanded for proper consideration of the qualified immunity issue (the other 5 justices in the Saucier majority and the 3 concurring justices all found that qualified immunity was justified).
1.21.2009 2:33pm
Dave N (mail):
I am not sure if the government asked for the Saucier rule or whether Justice Kennedy created it out of the whole cloth.

OK, do you know?
1.21.2009 2:39pm
wfjag:
9-0 Decision!

(Cue music for Age of Aquarius and mood lighting via lava lamp)

Further evidence that a new day has dawned, petty squabbles are a thing of the past, and, in this new era of Brother-Sister-Neighborhood and Unity, no dissents will occur.

[Don't worry. The Republican law clerks for the Supremes who left town after renting out their apartments for those wanting to come to D.C. to watch the Obama Inauguration on big screen TV on the Capitol Mall will be back in town next week, and we can get back to 5-4 decisions].
1.21.2009 2:41pm
CVMe:
Profane: I'm not sure we disagree. If there is a "standing circuit split," that would mean that the Tenth Circuit decision, contrary to the others mentioned, is still good.

Orin: What is your argument that it's not? I suppose the bluebook's contemplation of "rev'd on other grounds" would be one cite, and every case using that qualifier would be another. If you want something more specific, Moore's Federal Practice, Section 134.02[1][c] notes that "The published decision of a panel of a court of appeals is a decision of the court and carries the weight of stare decisis. One panel of a circuit court cannot overrule another panel, unless a contrary decision of the United States Supreme Court intervenes . . ." Moore's says that stare decisis requires a majority decision on an issue of law, usually in a published opinion, with an actual decision on the issue. Sec. 134.04[1]-[5]. "If these factors apply, stare decisis applies." Sec. 134.05[5].

While "[a] lower court is not bound to follow a decision that has been implicitly overruled[, a] lower court should not find that a prior decision has been implicity overruled unles compelled to do so." Sec. 134.05[6].

Here, the 10th Circuit's decision that the 4th Amendment was violated was issued by a majority of the court in a published opinion. It was also necessary to the court's decision, because the court could not have held that qualified immunity was appropriate without deciding both issues. The Supreme Court did not explicitly or implicitly overrule that decision. It disagreed whether the law was clearly established, but said nothing about the Fourth Amendment issue other than that other courts had decided it contrary to the 10th.
1.21.2009 3:02pm
CVMe:
Orin, in other words, how would you answer this argument in the next criminal or 1983 case:


In this circuit, consent once removed does not allow police to enter a home after an informant is permitted entry. Callahan v. Pierson, (10th Cir.), rev'd on other grounds, Pierson v. Callahan (2009).


I'd also be interested to know whether, following this decision, you would advise your clients that it's okay to go back to using this procedure.
1.21.2009 3:08pm
David M. Nieporent (www):
In criminal cases where there is a good constitutional issue, the courts never hear it. Instead, the prosecutor offers a sweet plea bargain: "If you waive your Fourth Amendment claim, we'll give you fewer years in prison." Sometimes prosecutors will even dismiss criminal charges all together, to avoid the creation of bad law. I am sure someone someone who has NEVER litigated a criminal or Section 1983 case will say I'm wrong. But there is no honest prosecutor who will deny what I have just said.
But it only takes one such case to get such a ruling, not all of them. So even if the vast majority of prosecutors act as you suggest, it will still happen, eventually.
1.21.2009 3:14pm
Oren:

But it only takes one such case to get such a ruling, not all of them. So even if the vast majority of prosecutors act as you suggest, it will still happen, eventually.

Justice delayed.
1.21.2009 3:16pm
Kent Scheidegger (mail) (www):
The problem of a decision on the qualified immunity prong preventing any decision clearly establishing the rule would be redressed by the Barnett/Burger proposal. See post of 1/19 @ 2:20.

One thing that struck me about this case is how easily the Court disposed of the "clearly established" issue and how completely the Tenth blew it. More on this here.
1.21.2009 3:27pm
Green Monster (mail):

the Fourth Amendment/ qualified immunity case on which I wrote the cert petition and merits briefs


If you wrote the petition and briefs, why didn't you argue it, too????
1.21.2009 3:28pm
OrinKerr:
CVme,

Just to be clear, I am genuinely unsure, off the top of my head, whether a grant of certiorari followed by a reversal on one ground has the effect of taking the parts of the lower court opinion that the Supreme Court did not address off the books. Off the top of my head, I'm not even sure if that is a question of Supreme Court doctrine (the effect of the reversal) or 10th Circuit internal operating procedures (whether the case is now binding law under circuit precedent when part of it has been reversed).

I asked if you could provide authority for the issue because it seemed quite nonobvious to me, and yet you seemed very certain that you were right. My hope was that you could explain the issue to me, and I could learn from you. Unfortunately, though, the authority you cite doesn't actually establish the position you are advocating, as best I can tell. Perhaps you know of other cases where this came up, and the Tenth Circuit (or any circuit) had to address whether a prior opinion was still good law when one basis for it had been overturned by the Supreme Court?
1.21.2009 3:42pm
David M. Nieporent (www):
If you wrote the petition and briefs, why didn't you argue it, too????
He's a slacker.
1.21.2009 4:18pm
Saucier intruder:
Having recently clerked, I can attest that Saucier created a lot of difficulties in my experience. The order of battle sounded nice in theory, where issues come all teed up, but in practice, you had badly-lawyered/pro se/fubar-ed claims that you had to deal with. In such cases Saucier ran the danger of fomenting unreliable results and incoherent doctrine by forcing judges to address difficult/novel constitutional claims on inscrutable records or in other inauspicious circumstances.

On the other hand, I agree that it would be a mistake simply to revert to pre-Saucier practice. Saucier was an attempt to address real problems. I hope that courts will respect the Court's guidance and continue to apply Saucier as a default, while at the same time recognizing their discretion to abandon Saucier when its application will not further its purpose.
1.21.2009 4:42pm
Saucier intruder:
PS- I recognize that this creates a colorable advisory opinion problem, but I think it is enough to satisfy advisory-opinion objections that the court in any given case finds it necessary to flesh out the scope of the constitutional right as a precursor to figuring out to what extent that right was previously established. At any rate, applying Saucier voluntarily seems to pose no more of an Article III advisory-opinion problem than applying it when the Court said you have to. The mode of analysis either results in advisory opinions or it doesn't.

Whether and to what extent such Saucier first-step discussion is dicta, and whether its potential status as dicta prevents it from becoming "clearly established", is another question, however. I need to ponder that.
1.21.2009 4:45pm
Saucier intruder:
PPS- Maybe we can start calling it a "Pearson" analysis?? It would be great to preempt the awkward dilemma in oral argument/conversation of whether to pronounce Saucier with the "r" sound, or more like a French kitchen worker (i.e., rhyming with the guy who helps you pick wine in a fancy restaurant).

Of course, we would still have a "Peerson"/"Person" pronunciation quandary, but that seems preferable because it lack the overtones of class snobbery and pretension that invariably cling French-sounding words.
1.21.2009 4:52pm
Mike& (mail):
But it only takes one such case to get such a ruling, not all of them. So even if the vast majority of prosecutors act as you suggest, it will still happen, eventually.

In the meantime, people will have their rights violated, and police will not be held accountable. They'll say, "Well, the law isn't clearly established. End of case."

Is that desirable?
1.21.2009 4:58pm
D.A.:
Orin,
Isn't the answer to your question obvious in the very fact that there exists a "rev'd on other grounds" citation? If a decision was wiped completely off the books by a reversal from a higher court, there would be no basis for that citation.

I'm unaware of a case holding "a reported case reversed on one ground may still validly be cited for its holding on a different point of law," but one case at least says so implicitly. In re Grand Jury Subpoena to Attorney (Under Seal), 679 F.Supp. 1403, 1412 n.27 (N.D.W.Va. 1988).
1.21.2009 5:11pm
Oren:

In such cases Saucier ran the danger of fomenting unreliable results and incoherent doctrine by forcing judges to address difficult/novel constitutional claims on inscrutable records or in other inauspicious circumstances.

Remanded for additional proceedings to clarify the record. (List here the specific facts to be clarified)
1.21.2009 5:12pm
OrinKerr:
DA,

I don't see how the existence of a citation form answers the specific question we're discussing. As I understand it, the question is whether the Fourth Amendment holding in Pearson remains binding law in the 10th Circuit. When I see cases cited as "rev'd on other grounds," the case has always (to the best of my recollection) been cited as persuasive authority, not binding authority. That is, I don't doubt that you could cite the 10th Circuit analysis in Pearson to a new circuit that had never reached the question. But the question is whether that part of the analysis is binding in the Tenth Circuit now. The citation form doesn't answer that.
1.21.2009 5:22pm
OrinKerr:
BTW, just blogged this question in the main section...
1.21.2009 5:44pm
Philistine (mail):
Beyond the technical question of whether the 10th Circuit's decision in Pearson on 4th Amendment claim is binding in the 10th Circuit--assuming the 10th Circuit (or one of its district courts)agrees (or is bound by Pearson)would that construction be "clearly established" for the next 1983 litigant in Pearson's position?
1.21.2009 5:49pm
Guest44:

In such cases Saucier ran the danger of fomenting unreliable results and incoherent doctrine by forcing judges to address difficult/novel constitutional claims on inscrutable records or in other inauspicious circumstances.


I think the real problem was the availability of interlocutory appeal on QI. Circuits were being forced to decide constitutional questions on hypothetical facts (at the MTD stage) and one-sided facts (at the SJ) stage. Getting the circuit court involved (potentially twice before trial) to say "if you can prove X, you win" doesn't fit well with our usual process.


I also disagree with the person above saying that all you need is one good case. The point is that courts have free rein not to reach the first prong. They say "we don't reach the constitutional question because it was not clear in our circuit that these facts would not have amounted to a constitutional violation in 200X." The case itself fails to answer the question, ensuring the right remains not clearly established.
1.21.2009 5:56pm
David Schwartz (mail):
Guest44:
David Schwartz, can you explain why the litigant has no stake in the outcome? At the briefing stage, the 1983 plaintiff will assert both a rights violation and that the right was clearly established. If he can prove both he may win a judgment.
And if he loses either, he cannot win a judgment. So if he cannot win on the "clearly established" prong, he has no stake in the "rights violation" prong. The Saucier rule said that even once only one litigant has a stake on the "rights violation" prong, the courts must still decide it.

Sure, there will still be cases where the Saucier procedure makes sense. And nothing in this ruling stops courts from using it there. This just says they don't have to use it because sometimes it doesn't make sense.
1.21.2009 7:27pm
Guest44:
I'm sorry, I'm still not seeing it. I think my 4A rights have been violated, so I sue. I believe that there was a violation and that the law was clearly established such that the cop should have known better. In opposing the MTD for QI, I have to argue and succeed on both prongs. As appellee on the interlocutory appeal of the MTD on QI, I argue both prongs.

When you say "if he cannot win on the 'clearly established' prong, he has no stake in the 'rights violation' prong," I don't understand. Losing on the back end does not mean I had no stake on the front end. When I'm briefing, I have full incentive to argue both prongs vigorously. Even if the court decides I win on one but lose the other (and thus lose overall) I have still had a stake in the outcome on every brief I filed.

I understood your original point to be that some 1983 plaintiffs would be arguing claims weakly (because they had no stake, you claimed) and so the law would develop in a bad way because plaintiffs systematically make weaker arguments because they have low interest in the outcome. Am I misunderstanding your argument?
1.21.2009 8:02pm
Oren:
... would that construction be "clearly established" for the next 1983 litigant in Pearson's position?

If Orin can't figure out whether the holding stands, I'm going to go out on a limb and say no.
1.22.2009 9:43am
David Schwartz (mail):
I understood your original point to be that some 1983 plaintiffs would be arguing claims weakly (because they had no stake, you claimed) and so the law would develop in a bad way because plaintiffs systematically make weaker arguments because they have low interest in the outcome. Am I misunderstanding your argument?
No, that's precisely what I'm saying. The only case we care about is the case where it's hard to prove the right is clearly established. In any other case, the law is already developed and there's no issue.

The whole point of your argument is to make sure that the "right violation" prong is developed even in cases where the right is not "clearly established". My point is that if the right is not clearly established, the litigant has no interest in establishing that his rights were violated, since it has no bearing on the verdict.
1.23.2009 2:31pm

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