This Article considers the two-part sequencing doctrine used in evaluating the qualified immunity defense to claims that government officials have violated federal constitutional rights. This doctrine--often called Wilson-Saucier sequencing- directs courts to first consider whether a plaintiff has properly alleged a constitutional violation before considering whether the defendant is entitled to qualified immunity. The Supreme Court established this rule to ensure that constitutional and statutory rights are fully articulated and refined. This Article provides a unique, empirical evaluation of the rationale underlying Wilson-Saucier sequencing. By comparing judicial decisions before and after Wilson-Saucier sequencing, it offers evidence that mandatory sequencing is necessary for the robust articulation of constitutional rights by the lower courts. Without such sequencing, courts are likely to return to constitutional stagnation. The Article concludes by arguing that constitutional articulation should be favored because it enhances predictability in the legal system, benefiting both plaintiffs and defendants.
Paul W. Hughes,
Not a Failed Experiment: Wilson-Saucier Sequencing and the Articulation of Constitutional Rights,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol80/iss2/4