Thread by @OrinKerr

Two published 5th Circuit QI cases, two days apart, offer rather different perspectives on whether/when a factually similar precedent is needed to deny QI. (Judge Ho is right, I think, it's not; Judge Jones is wrong.)

ca5.uscourts.gov/opinions/pub/2…

ca5.uscourts.gov/opinions/pub/2…

To be clear, it's possible to reconcile the two cases on their facts. But it seems to me that their overall approach to QI is quite different.

The basic dispute is a question that @JCSchwartzProf and I were discussing recently: If a violation is clear based on the rules announced in prior cases, even if the rules were announced in factually dissimilar cases, does QI apply?

As I read her opinion, Judge Jones seems to think the answer is yes; you look to factual similarity of cases in which rules were announced, not the clarity of the rule. Judge Ho seems to think the answer is no; you look to the rules to see if a violation was clear.

I've always understood the answer to be no, as that's the whole point of rules. Sometimes the underlying law is fact-specific, and sometimes it's based on rules. But when underlying law is based on rules, they establish legal clarity without close attention to facts.

So it seems to me that, in the areas where a general rule happens to apply, violations of law can be clear and QI doesn't attach based on the rule violation independent of the facts of the case in which the general rule was announced. /end