Clearly Not Established: Decisional Law and the Qualified Immunity Doctrine

This Note explores the differing views on which sources of authority can be used to show “clearly established law” and their effects on constitutional tort litigants. The Note describes the elements of a § 1983 or a Bivens cause of action against a government official and the history of the Supreme Court’s qualified immunity jurisprudence. The Note also discusses the lack of Supreme Court guidance in this area and surveys which authorities can be used to show “clearly established” law in the Third, Sixth, Ninth, and Eleventh Circuits. The Note then propounds that the differing standards for which sources can be used has a predominately negative effect on constitutional tort litigants. Finally, the Note puts forth a uniform standard for determining when the law is “clearly established.”