TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, September 22, 2022

Wells on Absolute Official Immunity in Constitutional Litigation

Mike Wells has posted to SSRN Absolute Official Immunity in Constitutional Litigation.  The abstract provides:

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.

Scholarship | Permalink


Clearly written by someone who has never held a position doing one of the jobs for which absolute immunity is bestowed. There would be a massive chilling effect if prosecutors, judges, etc. were forced to worry about some convoluted cost-benefit analysis in tort liability before taking any action that might get them sued (which, in those positions, is almost any official action). However unpopular judges and prosecutors might be to academia’s crypto-Marxist contingent, they serve vital roles in the American legal system. Having the few remaining souls foolhardy enough to take those jobs paralyzed by fear of potential liability for performing their basic jobs is an impossible way to operate a civilization for long. For this author, that may be a feature rather than a bug- the argument essentially boils down to the contention that if you wield the Constitution a certain way, you can make it an effective suicide pact.

Posted by: Opinionated Reader | Oct 10, 2022 7:22:52 PM

Post a comment