JAY M. FEINMAN*
ROY S. COHEN**
The issue of judicial liability in civil actions1 for various types of wrongdoing has attracted recent interest as a result of the 1978 United States Supreme Court decision, Stump v. Sparkman.2 In Stump, the Court held that an Indiana circuit judge who ordered the sterilization of a minor solely on the ex parte petition of her mother, without notice, hearing, or opportunity to appeal, was immune from civil suit brought by the daughter. The decision has been followed in a large number of cases,3 but commentators unanimously have condemned the decision and have suggested reform of the rules of judicial liability and judicial immunity.4 We agree that Stump was wrongly decided and that reform is needed, but we do so for different reasons and with different results.The most frequent justification offered for judicial immunity is its alleged long-standing existence in Anglo-American common law.5 A principal authority for this proposition is the century-old precedent of Bradley v. Fisher,6 in which Justice Stephen Field stated that immunity "has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country."7 Thus, we first examine the history of judicial liability to determine if this reverence for the past is warranted. We conclude that statements such as that in Bradley are inadequate history at two levels, reflecting judicial misunderstanding of both what the law was and how and why it developed. Actually, English law began with a position of general judicial liability and developed only limited exceptions on grounds that are irrelevant to a discussion of judicial liability today. When the English law was received in the United States, this limited immunity was expanded significantly, notably by James Kent, to limit liability, and throughout the nineteenth century a mixed pattern of judicial liability and immunity existed in America. In Bradley, Justice Field provided a confused reformulation of the law, which led to a further limitation of liability. At no point, however, were the advantages and disadvantages of judicial immunity fully examined.
Because the case for immunity is inconclusive and unpersuasive on historical grounds, we also examine the issue on policy grounds; our analysis proceeds from a thorough review of the case law and literature. We conclude that immunity is indefensible on policy grounds as well, but that conclusion does not convince us that any of the suggested reforms should be adopted. Instead, we draw on contemporary jurisprudential thinking to argue that no convincing policy resolution is possible. At that point, we express our, own belief on the desirable response of courts to judicial liability cases, in the context of a broader conception of the past, present, and future legal order.8
