Government Wrongs

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In his Commentaries on the Law of England (1765), william blackstone articulated what he took to be the fundamental principle governing legal redress against the Crown: "The King can do no wrong." This maxim, which Bracton had reported in the thirteenth century, was for Blackstone and for the legal historians who followed him an implication of the royal prerogative signifying that the Crown could not be brought to account judicially without its consent. Even in Bracton's time, however, the Crown had established remedies for many wrongs committed by royal officers. The maxim, then, probably meant not that the king was above the law but that he would not ordinarily suffer wrong to be done to his subjects by his officers without remedy.

Prior to the american revolution the law in England, as summarized in Lane v. Cotton (1701), recognized the personal liability of individual officers for negligent wrongs committed in the course of their duties, but denied governmental liability for negligence. The American Constitution, however, established political and legal principles that were radically different from those that prevailed in English public law. State-law principles also reflected certain departures from the English model. This discussion focuses on tort claims, not contractual disputes. The discussion will distinguish between state and federal government wrongs, between immunity doctrine in the state courts and in the federal courts, and between actions asserting damage claims and suits for injunctive relief.

In chisholm v. georgia (1793) the Supreme Court upheld state government liability, ruling that Article III conferred federal court jurisdiction over common law actions against states initiated by citizens of other states. In an obiter dictum, however, the Court stated that Article III immunized the United States from suit, a position affirmed in later cases. The Chisholm ruling on state liability aroused a firestorm of political protest, culminating in the adoption of the eleventh amendment, which was understood to bar any federal court action against a state, even one claiming a constitutional violation.

The jurisprudence relating to the states' Eleventh Amendment immunity soon became quite complex and remains so. For example, in Hans v. Louisiana (1890) the immunity was extended to suits brought against states by their own citizens, contrary to Article III's text, and to suits that were effectively, though not nominally, against states. In ex parte young (1908), however, the Court created what proved to be a transformative exception to the immunity. There, the Court permitted the federal courts to grant injunctive relief against state officials in their individual capacities if their actions, although valid under state law, violated the Constitution. From this seed, the civil rights revolution in the courts would grow.

The most far-reaching federal-law limitation on states and local government wrongs, section 1983, title 42, u. s. code, authorizes courts to grant monetary or injunctive relief against "any person who, under color of [state or local] law," deprives the plaintiff of rights secured by federal law. Enacted in 1871 to implement the newly ratified fourteenth amendment, it was of little significance until the Court, in Monroe v. Pape (1961), interpreted the statute to cover official wrongs that were authorized by state law. Only two years after the decision, section 1983 litigation had increased by more than sixty percent. Subsequently decisions expanded this remedy even further. In 1976 Congress authorized the award of attorneys' fees to successful plaintiffs in section 1983 cases.

Today, the main limitations on section 1983 liability are the following: a local government is not liable for its officials' wrongs unless the illegal actions reflect an "official policy or custom"; punitive damages may be awarded against individual officials but ordinarily not against governments; comprehensive regulatory schemes may override section 1983's remedy; simple negligence is not actionable; and, most important, certain immunities may protect governments and officials from actions for damages and other retrospective relief. These immunities are absolute as to judicial, legislative, and prosecutorial actions, and are qualified (protecting an official who acts in good faith) as to administrative actions.

Each state has established its own regime of liability and immunity law for its officials' wrongs. These regimes usually center on statutory waivers of sovereign immunity. In interpreting these statutes, state courts often distinguish between "discretionary" and "governmental" decisions, which are absolutely immune, and "ministerial" and "proprietary" decisions, which are not. These state-law regimes are largely unaffected by the Constitution, although they may provide remedies under state law for federal-law violations.

Wrongs committed by federal officials are subject to three different remedies under federal law: (1) the Federal Tort Claims Act of 1946 (FTCA); (2) the "Bivens action" and (3) direct judicial review of administrative action under the Administrative Procedure Act of 1946 or particular review provisions in statutes.

The FTCA is a limited waiver of the United States's sovereign immunity derived, as noted above, from judicial interpretations of Article III. It creates a damage remedy for federal officials' negligence and for certain intentional torts of "investigative or law enforcement officers" so long as the conduct is tortious under the applicable state law. The FTCA substitutes governmental for official liability; although it confers no immunities, it creates some broad exceptions. The two most important ones deny liability for most intentional torts, and for "any claim … based upon the exercise or performance or the failure to exercise a discretionary function or duty … whether or not the discretion involved be abused." Neither a jury trial nor punitive damages is available under the FTCA.

The eponymous Bivens action, from bivens v. six unknown named agents (1971), is a judicially created remedy against individual federal officials (not the government) for violations of certain constitutional rights; the Court has specifically extended it to fourth amendment, Fifth Amendment equal protection, and Eighth Amendment rights. In Bivens actions, the FTCA exceptions do not apply, but the official may claim an absolute or qualified immunity (depending on the nature of the act). Punitive damages and jury trials are permitted.

The Administrative Procedure Act authorizes judicial review of the decisions of almost all federal agencies at the instance of one who is aggrieved by an agency action and seeks injunctive, mandatory, or declaratory relief. The only important exceptions are cases in which a statute precludes judicial review, as in Block v. Community Nutrition Institute (1984), or in which the agency action "is committed to agency discretion by law," as in Heckler v. Chaney (1985).

The legal structure for remedying governmental wrongs, especially at the federal level, is formidable. That structure, however, displays some problematic features. First, certain doctrines limit victims' redress. These include the Eleventh Amendment immunity; the Court's rejection, in monell v. department of social services of new york city (1978), of local governments' vicarious liability for their employees' section 1983 violations; and the limitations on liability, damages, and fee-shifting under the FTCA. Such doctrines, by effectively confining many victims to a remedy against an individual official, may defeat both the compensation and deterrence goals of the law. Individual officials are unlikely to be able to pay substantial damages. They are also likely to be poorly situated to alter the bureaucratic policies or practices that may have caused their wrongdoing and may cause more of it in the future. In addition, doctrines about standing, ripeness, and irreparable harm have sometimes been used to restrict access to injunctive relief against governmental wrongdoing of a more or less systematic nature. An example is City of Los Angeles v. Lyons (1983).

Second, this focus on the liability of individual officials, some of whom will be neither legally represented nor indemnified by the governments that employ them, creates incentives for the officials to adopt self-protective strategies of inaction, delay, formalism, and change in the character of their decisions. The circumstances in which many low-level officials work also provide ample opportunity to pursue such incentives. Although these strategies may succeed in minimizing the officials' personal exposure to liability, they tend to undermine the officials' functions and impose wasteful costs on the public.

A remedial structure that limited the liability of individual officials for damages, transferring remedial responsibility to the governmental entities that employed them, would strike a better balance among the competing social interests. Those interests are to deter official wrongdoing, maintain vigorous decision making, compensate victims of illegality, respect the distinctive institutional competences of different decision makers, and accomplish these ends at a tolerable public cost.

Peter H. Schuck


Nahmod, Sheldon 1986 Civil Rights and Civil Liberties Litigation: The Law of Section 1983. Colorado Springs, Colo.: Shepard'sMcGraw-Hill.

Schuck, Peter 1983 Suing Government: Citizen Remedies for Official Wrongs. New Haven, Conn.: Yale University Press.

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Government Wrongs

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Government Wrongs