Zones of Discretion at Common Law

Pfander, James E. | August 1, 2021

Long controversial, the doctrine of qualified immunity provides a civil liability shield for police officers and other executive branch officials. Scholars have questioned the doctrine, in part on the basis that it lacks support in the common law rules of official liability that were in place in the nineteenth century when Section 1983 became law. In a recently published article, Scott Keller defends the doctrine’s legality by arguing that the common law did indeed recognize forms of qualified immunity.

This Essay suggests that the authorities on which Keller relies comprise a body of administrative law, defining zones of official discretion, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Chief Justice Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official’s lawful discretion ended and legal boundaries were transgressed, the common law was available (indeed obliged, according to Chief Justice Marshall) to supply a remedy. In much of what Keller points to, common law courts were deferring to executive action taken within the zones of their lawful discretion. But the common law did not confer a qualified immunity when executive officials transgressed those boundaries and violated protected rights.


Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law. Thanks to Will Baude, Henry Monaghan, Jide Nzelibe, Alex Reinert, and Joanna Schwartz for thoughtful and comprehensive comments, suggestions, and spreadsheets. Thanks to HanByul Chang and the editors of Northwestern Law Review Online for close reads and excellent editorial suggestions.

Copyright 2021 by James E. Pfander.

Cite as: James E. Pfander, Zones of Discretion at Common Law, 116 Nw. U. L. Rev. Online 148 (2021),