Paul Hughes (Yale University - Yale Law School) has posted Not a Failed Experiment: Wilson-Saucier Sequencing and the Articulation of Constitutional Rights on SSRN. Here is the abstract:
When addressing a qualified immunity defense, courts engage in a two-step approach. First, a court is to determine whether the allegations of the complaint, if true, present a constitutional violation. If the complaint has sufficiently alleged such an injury, courts then decide whether the constitutional violation was so clearly established at the time of the activity that a reasonable official would have been aware that his or her conduct violated the Constitution or applicable statutes. This sequencing doctrine - often called Wilson-Saucier sequencing - was established by the Supreme Court to ensure that constitutional rights are refined. If courts deciding qualified immunity defenses were permitted to bypass the first step and hold only that the law was not clearly established at the time, the constitutional rights at stake in many cases may never be articulated by the courts. But Wilson-Saucier sequencing has come under significant attack. Justice Breyer recently stated that the "Saucier experiment" has "failed." It is no surprise that the Supreme Court will soon revisit sequencing.
This paper provides a unique, empirical examination of the rationale underlying Wilson-Saucier sequencing. In developing the doctrine, Chief Justice Rehnquist and Justice Kennedy argued that sequencing is necessary to ensure robust refinement of constitutional rights. This paper provides evidence that Chief Justice Rehnquist and Justice Kennedy were correct. The paper compares three one-year samples of the resolution of qualified immunity defenses by the circuit courts: every such defense raised in 1988, 1995, and 2005. These samples correspond to the three identifiable periods in the development of Wilson-Saucier sequencing: prior to sequencing, when sequencing was advisable, and when sequencing was mandatory. The results are plain: constitutional articulation rose from sixty-five to seventy-four to ninety-nine percent of cases, respectively, during these periods. And the data is yet more startling when reviewing only those cases where a court actually granted qualified immunity - a more true indicator of constitutional articulation. In those cases, constitutional articulation increased from forty-one percent to sixty-five percent and finally to ninety-eight percent in the three samples studied. Without doubt, Wilson-Saucier sequencing is necessary to ensure systematic refinement of constitutional rights.
In sum, this paper argues that Chief Justice Rehnquist and Justice Kennedy were correct to presume that sequencing enhances the refinement of constitutional rights. A retreat from Wilson-Saucier would result in significantly diminished rights articulation. And constitutional articulation, it should be noted, is not to be confused with constitutional expansion. Constitutional articulation occurs both when a court determines that a complaint does allege a constitutional violation as well when a court finds that the alleged violation does not exist. In both situations, a court articulates the scope of constitutional rights.
