Is Quasi-Judicial Immunity Qualified Immunity?

10 Pages Posted: 5 Feb 2021 Last revised: 10 Mar 2021

See all articles by William Baude

William Baude

University of Chicago - Law School

Date Written: December 9, 2020

Abstract

In an important article, Scott Keller argues that in 1871 “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties.” This is not correct. The common law did not recognize the doctrine of qualified immunity. It recognized a doctrine of quasi-judicial immunity.

A closer examination of the doctrine of quasi-judicial immunity shows just how distant it was from the modern doctrine of qualified immunity. It protected quasi-judicial acts like election administration and tax assessment, not ordinary law enforcement decisions. It allowed for harsh liability for officers who exceeded their authority. And the defense was not an immunity from suit. Thus, today’s doctrine of qualified immunity owes more to modern judicial invention than it does to the common law.

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

Suggested Citation

Baude, William, Is Quasi-Judicial Immunity Qualified Immunity? (December 9, 2020). 73 Stanford Law Review Online (2021 Forthcoming), 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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