Is Quasi-Judicial Immunity Qualified Immunity?

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