Is Quasi-Judicial Immunity Qualified Immunity?

11 Pages Posted: 5 Feb 2021 Last revised: 2 Jun 2022

See all articles by William Baude

William Baude

University of Chicago - Law School

Date Written: June 1, 2022

Abstract

Has qualified immunity finally found its roots? Scott Keller’s Qualified and Absolute Immunity at Common Law shows the breadth and complexity of nineteenth century case law dealing with official immunities. But its most important claim, for today’s purposes, is the claim to find a historical basis for a doctrine of qualified immunity: an immunity from suit given to all government officials (including, but not only, the police) whenever they are sued for violating the Constitution. According to Keller, “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties” in 1871, when Congress passed the civil rights statute now codified as 42 U.S.C. §1983. This would be very important if it were true. But it is not.

Keywords: qualified immunity, quasi-judicial, immunity, common law, discretion, jurisdiction

Suggested Citation

Baude, William, Is Quasi-Judicial Immunity Qualified Immunity? (June 1, 2022). 74 Stanford Law Review Online 115 (2022), U of Chicago, Public Law Working Paper No. 761, Available at SSRN: https://ssrn.com/abstract=3746068 or http://dx.doi.org/10.2139/ssrn.3746068

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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