Cite as: 504 U. S. 158 (1992)
Kennedy, J., concurring
was justified by the special policy concerns arising from public officials' exposure to repeated suits. Harlow, supra, at 813-814; ante, at 165-166. The dissent in today's case argues that similar considerations justify a transformation of common-law standards in the context of private-party defendants. Post, at 179-180. With this I cannot agree.
We need not decide whether or not it was appropriate for the Court in Harlow to depart from history in the name of public policy, reshaping immunity doctrines in light of those policy considerations. But I would not extend that approach to other contexts. Harlow was decided at a time when the standards applicable to summary judgment made it difficult for a defendant to secure summary judgment regarding a factual question such as subjective intent, even when the plaintiff bore the burden of proof on the question; and in Harlow we relied on that fact in adopting an objective standard for qualified immunity. 457 U. S., at 815-819. However, subsequent clarifications to summary-judgment law have alleviated that problem, by allowing summary judgment to be entered against a nonmoving party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986). Under the principles set forth in Celotex and related cases, the strength of factual allegations such as subjective bad faith can be tested at the summary-judgment stage.
It must be remembered that unlike the common-law judges whose doctrines we adopt, we are devising limitations to a remedial statute, enacted by the Congress, which "on its face does not provide for any immunities." Malley, supra, at 342 (emphasis in original). We have imported common-law doctrines in the past because of our conclusion that the Congress which enacted § 1983 acted in light of existing legal principles. Owen v. City of Independence, 445 U. S. 622, 637-638 (1980). That suggests, however, that we may not
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