This comment is a response to Ryan E. Johnson, Note, Supervisors Without Supervision: Colon, McKenna, and the Confusing State of Supervisory Liability in the Second Circuit, 77 Wash. & Lee L. Rev. 457 (2020), which received the 2019 Washington and Lee Law Council Law Review Award.
In his note, Ryan Johnson drills down on the various ways that courts within the Second Circuit are approaching the viability of § 1983 lawsuits by incarcerated individuals against supervisors within correctional facilities. But how important is supervisory liability in the first place? Qualified immunity allows courts, as Mr. Johnson puts it, to “cop-out” from engaging in difficult constitutional inquiries and instead dispose of the case by invoking the magical words: “the law is unclear.” Over the past thirty-five years, the Supreme Court has decided many qualified immunity cases, never seriously signaling a desire to reconsider its qualified immunity precedent. However, with the Supreme Court’s current trend of overruling its prior decisions, we can hope that the Court’s flawed qualified immunity jurisprudence is next on the chopping block.
Allison Weiss, The Unqualified Mess of Qualified Immunity; A Doctrine Worth Overruling, 76 Wash. & Lee L. Rev. Online 113 (2020), https://scholarlycommons.law.wlu.edu/wlulr-online/vol76/iss2/5