The Lack Of A Common Law Basis For Qualified Immunity
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 t
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