Publication Date
7-12-2023
Abstract
Absolute official immunity blocks recovery of damages for constitutional violations committed by legislators, judges, prosecutors, and witnesses, no matter how egregious the violation. Under the Supreme Court’s “functional approach,” application of the doctrine does not turn on the officer’s title, but on function. Social workers, parole boards and others enjoy official immunity when they engage in legislative, adjudicative, or prosecutorial functions. The policy underlying absolute immunity is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. This Article criticizes the Court’s exclusive focus on function. While it may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, the function-based approach gives too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence benefits. Shifting from function to a more nuanced cost-benefit methodology would make good sense—and all the more so because the re-framing would support the recognition of multiple exceptions to present-day absolute-immunity rules, thus better serving the overarching remedial goals of constitutional tort law.
Recommended Citation
Wells, Michael L.
(2023)
"Absolute Official Immunity in Constitutional Litigation,"
Georgia Law Review: Vol. 57:
No.
3, Article 2.
Available at:
https://digitalcommons.law.uga.edu/glr/vol57/iss3/2