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March 24, 2008


Alan Viard

I am writing to clarify which aspect of the two-part inquiry the Court has decided to reconsider in Pearson. The relevant aspect is the order in which federal courts should answer the two questions. Under Saucier, the question of whether a constitutional right has been violated must be answered first; if a right has been violated, the next question is whether that right was clearly established.

Some observers have suggested that it may often be useful to reverse the ordering. If the law in a particular area is unsettled, a federal court may be able to readily determine that, whether or not any violated right exists, it was certainly not clearly established. If so, it would seem convenient for the court to grant summary judgment to the defendants on that ground without delving into the difficult question (ultimately irrelevant for the case at hand) of whether any such right actually exists. But, Saucier prohibits the federal courts from proceeding in this order. In Pearson, the Court will consider whether to overturn Saucier and remove that prohibition.

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