Abstract
In Pearson v. Callahan, the U.S. Supreme Court altered the contours of the qualified immunity defense with the intention of changing when and how federal courts make constitutional law. Qualified immunity is the primary defense to constitutional torts against government officials. Before Pearson, courts were required to determine if an official had violated a constitutional right even when that official was already protected by qualified immunity. After Pearson, courts now have the discretion to avoid such constitutional determinations when an official has qualified immunity. To determine Pearson’s impact, this Comment presents an empirical study of qualified immunity cases. The findings are surprising. While circuit courts have generally begun avoiding constitutional determinations as expected, district courts have not done so. Because Pearson was motivated by significant criticism of mandatory engagement in constitutional analysis, the district courts’ reaction is troubling. However, this reaction does indicate that courts tend not to avoid constitutional determinations in order to promote judicial efficiency. If this were the case, such a motivation would affect district courts more than circuit courts. Instead, it seems that a court’s decision to avoid a constitutional determination is a product of its interest in controlling constitutional precedent. In sum, Pearson has given courts substantial control over what precedent enters the body of constitutional law, and at least circuit courts appear to be consciously using it—a finding with implications for how constitutional law will develop in the future.
