Zones of Discretion at Common Law

10 Pages Posted: 10 Dec 2020

Date Written: December 10, 2020

Abstract

Scott Keller argues in an important forthcoming article that the common law recognized forms of qualified immunity. This reply suggests that Keller’s authorities comprise a body of administrative law, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official’s lawful discretion ended, and legal boundaries were transgressed, the common law was available (indeed obliged according to Marshall) to supply a remedy. In much of what Keller points to, common law courts were acknowledging that executive officials enjoyed zones of lawful discretion. But the common law did not confer immunity when those boundaries were transgressed.

Keywords: qualified immunity, common law, remedies, executive discretion, legal history

JEL Classification: K10, K30

Suggested Citation

Pfander, James E., Zones of Discretion at Common Law (December 10, 2020). Northwestern Public Law Research Paper No. 20-27, Available at SSRN: https://ssrn.com/abstract=3746475 or http://dx.doi.org/10.2139/ssrn.3746475

James E. Pfander (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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