After describing the basic legal and policy issues surrounding the qualified immunity defense and the use of novelty to explain procedural defaults in habeas cases, Part I of this article advocates a standard for both types of cases that asks whether a person exercising reasonable diligence in the same circumstances would have been aware of the relevant constitutional principles. With this standard in mind, Part II examines the qualified immunity defense in detail, concluding that in many cases public officials are given immunity even though they unreasonably failed to recognize the constitutional implications of their conduct. Part III compares the courts' definition of "novelty" in the habeas context and finds the opposite problem: most cases needlessly require that prisoners and their trial counsel have an uncanny ability to predict future developments in the law. Part IV then addresses the concept of "new rules" introduced in Supreme Court's recent retroactively decisions to limit the scope of habeas. While questioning the general wisdom of this new approach, this part of the article also concludes that as applied the new retroactivity doctrine precludes habeas relief even in cases when the state courts unreasonably interpreted existing precedent. Finally, Part V compares the three sets of cases and criticizes the courts' differing expectations regarding the ability of public officials, defense attorneys, and state court judges to predict developments in constitutional law.
Kit Kinports, Habeas Corpus, Qualified Immunity, and Crystal Balls: Predicting the Course of Constitutional Law, 33 Ariz. L. Rev. 115 (1991).