On the Legality of Immunity from Suit

Abstract

Formal derivation of optimal public policy shows that the dissenting opinions are correct in the US Supreme Court rulings on absolute immunity for judicial and quasi-judicial actors. Implementing the results in this paper will result in a signficant increase in consumer surplus at virtually no cost to the public, as oligopoly profits are shifted away from the legal sector. The critical thresholds for allowing suit against said actors are determinable by partitioning the threat of suit into those with a high likelihood of the judicial actor winning and those with a relatively low likelihood of winning. Common-law thresholds for the partition are clear and convincing evidence for civil action and beyond a reasonable doubt for criminal suit against judicial and quasi-judicial actors.

Keywords: Absolute Immunity, Judicial, Supreme Court

JEL Classification: K14, K30, K40, K42