![handle is hein.journals/jwlrpt1 and id is 1 raw text is: Forrester v.
White
Finality of
Judgment and
Appellate
Review
Mishneh's Rule
of Judicial
Immunity
Institute of Jewish Law
NEWSLETTER
Editor: Ronnie F. Warburg
May 1988
JUDICIAL IMMUNITY IN JEWISH LAW:
A CHAPTER IN PROCEDURE OR TORTS?
On January 12, 1988, the U.S. Supreme Court in Forrester v. White (108 S.Ct. 538
[1988]) addressed the question of judicial immunity from civil suits. Following the cen-
tury-old precedent of Bradley v. Fisher (80 U.S. [13 Wall] 335 [1872]) and the more recent
decision in Stump v. Sparkman (98 S.Ct. 1099 [1978]), the Court held judges absolutely
immune from common law tort actions for acts committed in their judicial capacity.
In turning to policy considerations, one finds in Forrester the following passage which
suggests the primary rationale for the doctrine of absolute judicial immunity:
Judicial immunity apparently originated, in medieval times, as a
device for discouraging collateral attacks and thereby helping to establish
appellate procedures as the standard system for correcting judicial error
(108 S.Ct. 538, 543 [1988])
Thus, the rationale underlying judicial immunity is the need for finality; in Lord Coke's
phraseology, an end of causes. Immunity cuts off challenges to judicial authority. While
judicial immunity protects the system from collateral attacks on its judgments, the vindica-
tion of private rights is available through the formal appellate process. In other words,
the availability of an appellate hierarchial system of review is therefore central to the logic
of judicial immunity.*
How does Jewish law deal with cases of judicial error? Already around 200 C.E. the
Mishneh posits:
that if a person who was not a mumheh (an expert of the law)...sat in
judgment, rewarded one who really was liable, or penalized one who was
entitled to the verdict.. .what he has done has been done but he must make
good any loss suffered. If he was a mumheh la-beth din (according to cer-
tain texts: mumheh la-rabbin: recognized expert in law), he is exempt
from payment for any errors of judgments.
Thus, if a lay judge rendered an erroneous judgment in law, his verdict is final but he is
liable for loss he caused to the litigant. If the judge was a recognized authority, he is ex-
empt from liability.
What is the rationale for affording judicial immunity to an erring judge or arbiter?
Does Jewish law espouse the rationale suggested by American law? Does Jewish tradition
view a judicial decision as final, thus channeling actions upward through an appellate
hierarchy for the correction of error? Do the provisions of legal procedure as laid down
in the classical sources of Jewish law (namely the Bible, Mishneh and Talmud) presup-
pose the maintenance of a hierarchical system of appellate review for the correction of
error?
The procedure for the determination of a difficult and controlling legal question in
an unresolved case is described in the following source:
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