Abstract
Absolute official immunity blocks recovery for constitutional violations that occur in the course of legislative, judicial, prosecutorial, and testimonial functions, no matter how egregiously the officer has acted. The basic policy underlying the doctrine is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. It may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, but the Court’s broad function-based limits give too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence benefits. Shifting from the crude function-based approach to a more nuanced cost-benefit methodology would make good sense—and all the more so because the shift would align the Court’s doctrine with the values it has identified as underlying official-immunity law. Of particular importance, such a reform would support the recognition of multiple exceptions to present-day absolute-immunity rules, thus better serving the overarching remedial goals of constitutional tort law.
Repository Citation
Michael L. Wells,
Absolute Official Immunity in Constitutional Litigation
, 57 Ga. L. Rev. 919
(2023),
Available at: https://digitalcommons.law.uga.edu/fac_artchop/1584
Previously posted on SSRN.