Channels, Fall 2017

Channels • 2017 • Volume 2 • Number 1 Page 73 Addressing Appellate Insulation Michael Kirkpatrick and Joshua Matz suggest that the current system needs very little revision, as it represents an imperfect but necessary balance that they call “structured discretion.” 113 Viewing Camreta as a well-crafted solution to many of the issues under Saucier and Pearson , they write that the next improvement to make is expanding prevailing party review to en banc appeals, which would help to balance out extreme panel decision and cultivate a sense of accountability in the appeals court panels. 114 Rights Articulation and Reaching the Merits Jack Beerman wrote that reaching the merits should be the default for courts unless they are dealing with a certain type of case (useless or fact-bound precedent, a conflict with state law, or an imminent higher court decision). 115 Under those cases, the court would not be permitted to reach the merits. Aaron Belzer proposes a similar solution, recommending instead that the courts use practical criteria for reaching the merits, looking at 1) the remedy for the plaintiff, 2) the capability of repetition, and 3) the goal of adequate development for the sake of establishing legal precedent. 116 These methods would eliminate the unbridled discretion that plagues current qualified immunity disputes. It would also require courts to articulate their reasons for not reaching the merits. In the process, it would encourage and promote constitutional law development. These solutions may or may not fix the issue of wasted litigant resources, as the counsel could not be entirely sure whether the court would reach the merits or avoid them, but in the very least they would give criteria to guide briefing and make the process more predictable. Moreover, since these ideas closely approximate the kind of standards that Camreta seemed to favor, this improvement may come in time, being established in following qualified immunity cases. Particularity The issue of particularity standards blocking § 1983 is mitigated in part by increased rights articulation—more cases clearly establishing rights means more factual scenarios in which rights are expressly protected. However, this is by no means a satisfactory solution, since it leaves much room for plaintiffs to face the wall of qualified immunity even when they ought to be afforded the remedy that § 1983 intends to award. Thus, the Court needs to re- center its particularity rulings so as to better balance competing concerns. Unless the goal is to limit § 1983 to only repeated, virtually identical violations, a further emphasis on fair notice rather than analogous precedent is in order. The basis for this focus is already established in Hope , and even back in the softer language of Anderson . Thus, a move to a less strict view of particularity would not require a strong divergence from precedent but only a shift in the way such standards are expressed. 113 Kirkpatrick at 656. 114 Ibid., 664-665. 115 Beermann at 160 ff. 116 Belzer at 687.