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Recent Developments in Appellate Advocacy


The U.S. Supreme Court’s attention to legal questions that are of significance to the tort, trial, and insurance bar continued unabated during the 2014–15 Term. This Term produced important decisions on qualified immunity, federal civil procedure and jurisdiction, and preemption. In Dart Cherokee Basin Operating Co. v. Owens,1 for example, the Court clarified that a notice of removal to federal court need not include evidentiary submissions; a plausible allegation that the amount in controversy exceeds the jurisdictional threshold suffices. In Heien v. North Carolina,2 the Court held that a police officer’s reasonable mistake of law may supply a reasonable suspicion that justifies a traffic stop under the Fourth Amendment. Looking ahead, the 2015–16 Term promises to yield important answers to questions concerning class action procedure and Article III, including, in Campbell-Ewald Co. v. Gomez,3 whether a case becomes moot when the plaintiff receives a complete offer of relief. These cases, along with recent appellate decisions that the Supreme Court may yet review, are featured below.


During the 2014–15 Term, the Supreme Court continued to address problems in lower courts’ qualified immunity analyses. The Court also considered the effect of a mistake of law on whether a Fourth Amendment violation has occurred. While the Court clarified that an objective standard should apply to excessive force claims by pretrial detainees, the Court left uncertain whether an objective or subjective standard applies to similar claims by post-conviction prisoners.

A. Continuing Struggle with Lower Courts’ Qualified Immunity Methodology

Qualified immunity protects government officials from personal liability when their conduct does not violate clearly established federal statutory or constitutional rights.4 In recent years, the Supreme Court has attempted to clarify when a right is clearly established. Four years ago, in Ashcroft v. al-Kidd, the Supreme Court explained that existing precedent must place the relevant “contours” of the right “beyond debate,” such that every reasonable official would understand that the complained-of conduct violates the right.5 The Court explained that this standard usually requires controlling authority or a “robust consensus” of “persuasive authority.”6 The following year, in Reichle v. Howards, the Court said that when the impact of one of its Decisions on a circuit’s existing precedent is “far from clear,” the officer is entitled to the benefit of the doubt, especially if other circuits have ruled for officers in similar situations.7

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