The Volokh Conspiracy
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Scott Keller, the former solicitor general of Texas, now a partner at Baker Botts, has an important article forthcoming in the Stanford Law Review: Qualified and Absolute Immunity at Common Law: It dives into nineteenth century treatises and cases to describe the immunities available to government officials, and argues that there was—contrary to conventional wisdom—a form of qualified immunity recognized at common law. Here is the abstract:
Qualified immunity has become one of the Supreme Court's most controversial doctrines. But while there has been plenty of commentary criticizing the Court's existing "clearly established law" test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under nineteenth-century common law. Yet the legitimacy of state officer immunities, under the Court's precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court's own words, it cannot "make a freewheeling policy choice" and must apply immunities Congress implicitly adopted from the "common-law tradition."
This Article therefore provides the first comprehensive review of the common law around 1871 on government officer immunities. In particular, it canvasses the four nineteenth-century treatises that the Supreme Court consults in assessing officer immunity under the common law of 1871: Cooley's 1879 Law of Torts; Bishop's 1889 Commentaries on Non-Contract Law; Mechem's 1890 Law of Public Offices and Officers; and Throop's 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court's own, often ignored, nineteenth-century decisions.
These historical sources overwhelmingly refute the prevailing view among modern commentators about one critical aspect of qualified immunity. This Article confirms that the common law around 1871 did recognize a freestanding qualified immunity protecting all government officers' discretionary duties—like qualified immunity today.
But many other important features of the Supreme Court's current officer immunity doctrines diverge significantly from the common law around 1871: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer's subjective improper purpose, instead of a violation of "clearly established law"; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden.
Restoring the common law around 1871 on state officer immunities could address many modern problems with qualified immunity, and these three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that would sufficiently protect the separation of powers without resort to the "clearly established law" test—which frequently denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers' subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial.
I have just posted a short article responding with my disagreement: Is Quasi-Judicial Immunity Qualified Immunity? Here is the introduction:
Has qualified immunity finally found its roots? Scott Keller's article shows the breadth and complexity of nineteenth century case law dealing with official immunities. But perhaps its most important claim, for today's purposes, is the claim to find a historical basis for a doctrine of qualified immunity. 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 is contrary to the received scholarly wisdom, and it would be very important if it were true. But it is not.
Let us assume that this body of nineteenth century common law should be translated to the scope of remedies under a statutory action for violations of the Constitution. Even so, the common law did not recognize the doctrine of qualified immunity. It recognized a doctrine of quasi-judicial immunity, which shielded certain acts from liability for good faith mistakes. Keller does acknowledge that this nineteenth century doctrine has important differences from today's doctrine. But the differences run deeper than you would know from Keller's account.
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.
And Professor Jim Pfander has just posted a response of his own as well: Zones of Discretion at Common Law. 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.