ABSTRACT
Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But caselaw and scholarship has paid surprisingly little attention to how qualified immunity could be reformed – short of eliminating the doctrine altogether. 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 19th 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 19th century common law on government officer immunities. In particular, it canvasses the four 19th century tort treatises that the Supreme Court consults in assessing officer immunity at common law: 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, 19th century decisions …
Keller, Scott A, Qualified and Absolute Immunity at Common Law (August 25, 2020). Stanford Law Review, forthcoming.
First posted 2020-10-16 05:35:17
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