New Article: Prof. Michael L. Wells (Georgia) on the "Saucier sequence" in Sec. 1983 litigation

A great new article on an especially interesting and timely topic, especially given that Justice Breyer and other federal judges have begun voicing their concerns about the impact of Saucier v. Katz (2001) in Morse v. Frederick (2007) and many other Sec. 1983 cases.

Michael L. Wells, The 'Order-of-Battle' in Constitutional Litigation, 60 SMU L. Rev. 1539 (2007). [L][W]

Excerpt:
... THIS Article examines and defends a procedural rule that figures prominently in constitutional tort litigation, has drawn sharp criticism from the federal judiciary, and seems to have lost the support of at least four sitting Supreme Court Justices. ...  In order to recover damages, plaintiffs must not only prove a constitutional violation but also fend off assertions of official immunity. In ruling on motions to dismiss the complaint and motions for summary judgment, a preliminary question is the sequence in which the two issues should be addressed-a problem the Justices call the "order-of-battle." . . .  Saucier's order-of-battle rule - requiring courts to resolve the substantive constitutional issue before the immunity question - may seem to be highly vulnerable to objections based on constitutional avoidance, as it flatly rejects the avoidance norm in favor of more rather than fewer rulings on constitutional issues. ... 

Why has an apparently routine policy, bearing on the internal dynamics of adjudication, spawned so much controversy? The answer is that appearances are deceptive. In reality, the order-of-battle rule has significant consequences for the role of the federal courts in adjudicating constitutional cases. Underneath the surface of this seemingly mundane issue simmers a clash between competing constitutional principles. On the one hand, absent the Saucier rule, lower courts may routinely incline to dispose of section 1983 cases without reaching the merits, to the detriment of the development of substantive constitutional law. On the other, the argument against Saucier relies on the Court's longstanding policy of avoiding unnecessary constitutional decisions. If the defendant wins on the official immunity issue, the argument goes, the plaintiff gets no damages whether or not the defendant committed a constitutional violation.  It follows that the case can often be resolved without reaching the constitutional question and with a lesser investment of judicial resources.

This Article examines the constitutional avoidance objection to Saucier and finds it wanting. . . . The aims of constitutional tort law include vindicating constitutional rights and deterring constitutional violations. Allowing lower courts discretion to decide on a case-by-case basis whether to apply the avoidance policy - as Justice Breyer proposes - would systematically undermine those goals. ...