[apoverton]

It's important to clarify. "Qualified Immunity" is NOT a law. It is judicial precedent. That means the Supreme Court made this up and courts don't go against prior rulings except in rare cases. Sometimes Congress creates laws to confirm judicial rulings or go against them and clarify their intentions.

The Supreme Court has ruled a lot of things that we would not allow to stand today. For instance, the Dred Scott Case [1] "In a landmark case, the United States Supreme Court decided 7–2 against Scott, finding that neither he nor any other person of African ancestry could claim citizenship in the United States, and therefore Scott could not bring suit in federal court under diversity of citizenship rules. Moreover, Scott's temporary residence outside Missouri did not bring about his emancipation under the Missouri Compromise, as the court ruled this to have been unconstitutional, as it would "improperly deprive Scott's owner of his legal property".

[1] https://en.wikipedia.org/wiki/Dred_Scott

[nickff]

There is a difference between law and legislation; qualified immunity is law, but not legislation (that I know of).

[apoverton]

According to Wikipedia

Legislation = Legislation (or statutory law) is law which has been promulgated (or "enacted") by a legislature or other governing body or the process of making it

Qualified Immunity = Qualified immunity is a legal doctrine in United States federal law

Legal doctrine = A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case

So it's a bit of a grey area, but I think the greater point stands that this is how court cases are decided vs. a law in the traditional sense that people think about laws.

[nickff]

In most of the English-speaking world, the vast majority of law is not legislation. Regulations and common law precedents are vast, and make up much more of our law than does legislation.

This may not be true in other areas, I know that many countries (and Quebec) have civil law, where legislation is more extensive.

[btilly]

Quebec and Louisiana both.

Common law is common in the English speaking world because it is derived from common law as practiced in England. However both Quebec and Louisiana were acquired from France and kept the French legal system. (OK, Quebec lost French law, and then was given it back so that they wouldn't rebel and become part of the USA.)

In Europe broadly, civil law is more common.

[NovemberWhiskey]

It's not really a grey area.

Common law, which is to say law that is not codified but defined by judicial decision making, is law "in the traditional sense that people think about laws" just as much as statute law.

In Michigan, for example, murder is a common law offense: no legislation exists that defines what murder is, although penalties etc. are legislated.

[downerending]

"made this up" is a bit pejorative. The also "made up" modern abortion rights and gay marriage. A law professor would probably say that they decided that prior interpretation was unjust/unconstitutional and made a change.

[rayiner]

The pejorative isn’t unwarranted. The equal protection clause justification for Obergefell is a fairly straightforward application of the text of the 14th amendment and longstanding Supreme Court precedent holding that the right to marry was fundamental even at the time of the founding. They didn’t conjure a right out of thin air, but found that there was no justification for denying the right to a particular group when the constitution guarantees “equal protection” to all groups.

Qualified immunity doesn’t rest on nearly as solid a ground.

[supercanuck]

You could teach a whole course on Roe alone. Let's not just generalize a monumentus court decision like that with a hand wave.

[rayiner]

Not to mention, two of the champions of Roe (O’Conner and Ginsberg) have thrown its reasoning under the bus.

[bhupy]

Do you have any resources on that? I find this genuinely interesting.

[selimthegrim]

RBG has always been a fan of abortion rights via incorporating the privileges and immunities clause of the 14th Amendment to the states, a path blocked after the 19th century Slaughterhouse cases. Reva Siegel at Yale Law School is good to read about this.

[selimthegrim]

*privileges or immunities clause, sorry (Not to confuse this with Article IV of the Constitution). And I guess RBG wants to use the equal protection clause directly.

[andrewflnr]

That's rather the point of GP, but applied to QI instead of Roe.