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The Order-of-Battle in Constitutional Litigation
Southern Methodist U. Law Review (2007)
  • Michael L. Wells, University of Georgia School of Law

This article examines and defends a procedural rule that figures prominently in section 1983 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 for constitutional violations plaintiffs must not only prove the violation but also fend off assertions of official immunity. When judges rule on motions to dismiss and motions for summary judgment in these cases,a preliminary question is the sequence in which the two questions should be addressed--a problem the Justices call the order-of-battle. Several years ago the Court held in Saucier v. Katz, 533 U.S. 194 (2001), that lower courts should decide the constitutional issue first. Objections to Saucier soon surfaced, and the criticism intensified in the Supreme Court's 2006 Term. Justices Stevens, Souter, Ginsburg, and Breyer, joined by lower federal court judges and a majority of state attorneys general, have called for abandoning the order-of-battle rule. Critics contend that the rule leads to unnecessary constitutional decisions and wastes judicial resources. They argue that lower courts should have flexibility to decide the issues in the order they think best. This article argues that Saucier should be kept. Despite the liberal credentials of many of Saucier's critics, the flexible approach they favor would, in practice, thwart the deterrence and vindication goals of constitutional tort by systematically putting off definitive rulings on matters of constitutional principle. At the same time the benefits of constitutional avoidance are comparatively small in this context.

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Citation Information
Michael L. Wells. "The Order-of-Battle in Constitutional Litigation" Southern Methodist U. Law Review (2007)
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