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Judicial Immunity vs. Due Process: When Should a Judge Be Subject to Suit?

NCJ Number
Cato Journal Volume: 7 Issue: 2 Dated: (Fall 1987) Pages: 461-474
R C Waters
Date Published
14 pages
This article argues that the doctrine of judicial immunity as applied to State judges under the Civil Rights Act of 1871 is inconsistent with the due process clause of the fourteenth amendment and violates American legal history.
The article discusses the policy underlying judicial immunity and cites several cases in which the doctrine was invoked to protect judges from lawsuits alleging they had committed corrupt or abusive judicial acts. The relationship between due process and judicial immunity is also discussed, with emphasis on how judicial immunity was linked historically with the Civil Rights Act of 1871. The article argues that judicial immunity must be firmly tied to due process guarantees. Perhaps the most effective way to establish this is to create an irrebuttable presumption of immunity for a State court judge's acts that have not deliberately terminated a citizen's rights before giving notice, hearing, and an opportunity to appeal. Of these three requirements, the most significant is the right to appeal, thus ensuring the reviewability of judge's actions. 52 footnotes.


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