That is the title of this new paper by our friend and colleague William Baude (@WilliamBaude on Twitter), a law professor and legal scholar at the University of Chicago. The qualified immunity doctrine is supposed to protect public officials from frivolous claims, but in practice, this judicially-created defense makes it next to impossible for us to sue public officials (like police officers) when they violate our constitutional rights (like killing unarmed civilians or breaking into our houses without a warrant). Moreover, Baude’s thought-provoking thesis poses a deeper and more intriguing question beyond the qualified immunity doctrine: what happens when it is the judges themselves who violate our constitutional rights? After all, aren’t judges supposed to hold public officials accountable; not shield them from the risk of litigation, a risk that private firms are exposed to?
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