Personal Liability as Administrative Law

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Personal Liability as Administrative Law
David Zaring*
Administrative law has almost exclusively concerned itself with lawsuits against agencies as collective entities, under the auspices of the Administrative Procedure Act. In light of the growing number and prominence of suits by war on terror plaintiffs against senior government officials, this Article considers the use of personal liability to discipline government officials and assesses it as an alternative to traditional administrative law. It compares the civil suits to criminal prosecutions of these officials and compares both of them to lessobviously law related scandal campaigns. Personal sanctions—of which Bivens complaints are a principal example—are worth more attention. These mechanisms, and the constitutional tort in particular, are case studies of the popular inclination to decentralize government, of the value of symbolic laws, and, increasingly, of the personalization of law and politics. Solving some of the problems of personal liability, as it works today, might best be done not by enhancing the bite of the always-challenged lawsuits and prosecutions, but by making sure that the law makes it more possible for political cases to be made against government officials, rather than legal ones.
Table of Contents
I. Introduction .................................................................................. 314 II. Three Kinds of Bivens Actions ..................................................... 319
A. The Doctrinal Problems for Plaintiffs .................................... 323 B. The Constitutional Tort Against Policy ................................. 331 C. The Slightly Successful Law Enforcement Suit.....................339
* Assistant Professor, Wharton School of Business. Thanks to Elena Baylis, Stefanos Bibas, Rick Bierschbach, Kristi Bowman, Cary Coglianese, Heather Elliott, Brandon Garrett, Kristin Hickman, David Law, Amanda Leiter, Chad Oldfather, Justin Smith, Steve Sugarman, Sasha Volokh, Ron Wright, and participants at workshops at the Canadian Law & Economics Association Annual Meeting, Marquette, Miami, and Washington & Lee. Thanks also to Lindsey Carson, Nikki Cho, Melanie Busby McKay and Megan Reed for research assistance.


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D. The Suit of Last Resort .......................................................... 342
III. Criminal Prosecution .................................................................... 347
IV. Conclusion....................................................................................356 A. Can the Symbol of Personal Liability Justify Its Practice? ................................................................................ 357 B. An Alternative to Litigation? ................................................. 359 C. Decentralized Governance as It Really Works.......................365

I. Introduction
Scooter Libby, the former Deputy Chief of Staff to the President, has been prosecuted criminally,1 sued in federal court by Valerie Plame—the covert CIA employee whose identity he allegedly revealed2—and driven from his office as chief of staff to the Vice President.3 The litigation to which he was subjected was both the subject of an active prediction market,4 and covered in novelistic detail by the press.5 Is Libby’s experience unique?
This Article suggests that it is not, and that Libby’s trials, rather than being exceptional, exemplify an overlooked, troubled, but rapidly evolving legal regime that limits government power, and has little to do with the Administrative Procedure Act (APA), which is ordinarily thought of as the principal mechanism of government constraint.6
That regime is rooted in the personal liability suit, an increasingly popular alternative to litigation under traditional administrative law. Since the advent of the war on terror, the Secretary of Defense, Secretary of Homeland Security,
1. See, e.g., Neil A. Lewis, Libby Given 30 Months for Lying in C.I.A. Leak Case, N.Y. TIMES, June 6, 2007, at A1 (reporting Libby’s sentence resulting from his criminal prosecution).
2. See Neil A. Lewis, Ex-C.I.A. Officer and Husband Sue Cheney, Libby and Rove Over Leak, N.Y. TIMES, July 14, 2006, at A16 (describing the civil suit brought by Valerie Plame and her husband, Joseph Wilson).
3. See Editorial, The Case Against Scooter Libby, N.Y. TIMES, Oct. 29, 2005, at A18 (stating that "Mr. Libby was forced to resign [on October 28, 2005]").
4. That prediction market closed once Libby was convicted. For a discussion of its operation, see Prediction Market on Scooter Libby Pardon, Posting of Tim Finin to Ebiquity Blog, (Mar. 10, 2007, 13:00 EST) (on file with the Washington and Lee Law Review).
5. See Frazier Moore, Washington and Media Face Off, HOUS. CHRON., Feb. 13, 2007, at TV Feature Section 6 (discussing the "Washington free-for-all that has ensnared the news media: the perjury trial of former vice presidential aide I. Lewis ‘Scooter’ Libby").
6. Administrative Procedure Act, Pub. L. No. 79-404, §§ 1–11, 60 Stat. 237, 237–44 (1946) (codified as amended in scattered sections of 5 U.S.C.).



Attorney General, and FBI Director have all defended suits brought on the same theory as Libby’s.7 Thousands of other government supervisors have
purchased insurance against the possibility that they might be sued like Libby,
ranging from run-of-the-mill federal supervisors to the CIA officials who oversee that agency’s approach to the war on terror.8
In the way that legal scholars usually think about litigation, that insurance
is perplexing. When plaintiffs sue individual government officials in their
personal capacity, they almost always lose before the trial court and do even worse on appeal.9 For all his legal peril, Libby will not serve a day in prison— he was pardoned—and has won the civil suit by Plame.10 In 2007, the Supreme
Court made already difficult cases for personal liability even more difficult for would-be plaintiffs to establish.11 Other high-ranking government officials,
despite many unhappy headlines, have proven to be all but impossible to win money from in civil suits.12
Criminal law has a similar record of success. Independent counsel
prosecutions rarely resulted in the conviction of executive branch employees,
and the Department of Justice’s Public Integrity Section has rarely gone after
federal supervisors (much less, for example, than the department has
prosecuted corporate executives) and has not done any better than in other cases involving federal employees in those cases where it has so acted.13
Prosecutors who have begun to investigate excesses in the war on terror have
not yet reached Libby’s colleagues over the Plame affair, and it appears that
they will not do so.

7. See infra notes 97–110 and accompanying text (describing the specific claims brought against these parties).
8. See infra note 195 (indicating that concerned CIA officials are purchasing liability insurance policies).
9. See, e.g., infra note 10 and accompanying text (stating that despite Scooter Libby’s legal troubles, he is unlikely to spend any time in jail).
10. See Wilson v. Libby, 498 F. Supp. 2d 74, 77–78 (D.D.C. 2007) (dismissing Plame’s suit), aff’d, 535 F.3d 697 (D.C. Cir. 2008); Press Release, White House Office of the Press Sec’y, Statement by the President on Executive Clemency for Lewis Libby (July 2, 2007), available at releases/2007/07/20070702-3.html (announcing the President’s commutation of Libby’s sentence).
11. See Wilkie v. Robbins, 127 S. Ct. 2588, 2604 (2007) (refusing to recognize a Bivens claim when most of the allegations against government officials were "within the Government’s enforcement power").
12. See infra notes 114–25 and accompanying text (discussing the failure of plaintiffs to ultimately prevail in civil suits despite years of discovery).
13. See infra notes 198–216 and accompanying text (giving statistics on various Department of Justice sections).


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Nonetheless, the rapt attention paid to these cases against high government officials, when contrasted with their litigated outcomes, is striking. Moreover, I argue, the attention is part of the point. The personal liability suit is an attention and claim-based regime that probably occupies more of the attention of government leaders than do suits to undo rules promulgated by the Environmental Protection Agency or the Securities and Exchange Commission. Personal liability suits underpin the news cycle and drive the just-so narratives of which Washington is fond.14
And yet, scholars have failed to think about personal liability in a systematic way. The neglect is not entirely surprising—legal academics tend to focus on agencies, appeals, and verdicts, while the system of liability of government officers, at least as actually practiced, turns on individuals, district courts, and complaints. Personal liability claims work in a disaggregated and decentralized way, and those sorts of regimes are difficult to study.15 Studying suits against the government that the government usually wins also might not, at first glance, look promising.
But the claim against individual government officials, seeking jail terms or damages from their personal fortunes, especially needs analysis now. Despite their high failure rate, these claims are the resort of thousands of plaintiffs every year, an important part of the Department of Justice’s criminal docket, the source of increasing numbers of headlines, and the legal exemplification of the personalization of Washington politics.16
Personal liability has become an important alternative to administrative procedure not just because it is an alternative. It offers its own features, features that some have found to be particularly compelling today. The plaintiffs and political operatives who drive the litigation are often in it for the process, and the prospect of distracting, confronting, and wearing down officials that have aggrieved them, all in the most public of arenas.17 To Mark

14. See, e.g., Tim Cornwell, Key Question: How Did Chandra Levy Die?, SCOTSMAN, May 24, 2002, at 9 (reviewing prominent scandals in the city); Danielle Reed, Scandal Tourism, WALL ST. J., Feb. 6, 1998, at B7 (describing a company offering "Scandal Tours" of the capital).
15. Though, as discussed in Part IV of this Article, a number of scholars and government reformers have embraced decentralized regimes like the personal liability regime on both descriptive and normative grounds.
16. See infra notes 85–131 and accompanying text (giving examples of, and commentary on, these types of lawsuits).
17. The Supreme Court has recognized this concern. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 382 (2004) (evaluating a privilege claim after the Vice President sued for failing to meet statutory obligation, and discussing the need to "give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties").



Tushnet, the turn to the personal characterizes our current political era. "[C]ontemporary politics is highly personalized," he observes, creating a "politics of personal destruction" wreaked by political operatives and opposition researchers, searching for grounds for litigation, and seeking to foment it.18
Consider the personal liability suit. Rather than thinking of the tort against individual government officials, or a Bivens action,—so called because of the 1971 Supreme Court case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,19 that announced the availability of the remedy— as one type of lawsuit, it is more helpful to divide it into three kinds of complaints. The newest kind—the tort case against a senior official as a policy challenge—is particularly interesting, especially when compared with the other two sorts of Bivens actions: the pro se and quasi-pro se cases that always lose, and the excessive use of force cases that usually lose.20 These cases, and the policy challenge in particular, get brought not because the plaintiff thinks she will collect damages, at least not usually, but because the plaintiff thinks she can obtain other benefits from the litigation.21
Strike suits and political attacks, litigation strategies that are not designed around winning the case—it all sounds quite alarming. But ignoble motives do not necessarily damn the system of individual liability. Expressive and symbolic, rather than tangible, benefits are perfectly acceptable offerings for any legal system.22 The personal liability of high officials, after all, is a paean to the supremacy of the law over its implementers.23 The ability of individuals
18. Mark V. Tushnet, The Constitutional Politics of the Clinton Impeachment, in AFTERMATH: THE CLINTON IMPEACHMENT AND THE PRESIDENCY IN THE AGE OF POLITICAL SPECTACLE 162, 170 (Leonard V. Kaplan & Beverly I. Moran eds., 2001).
19. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (holding that Bivens was entitled to recover damages against federal agents for injuries suffered as a result of the violation of his Fourth Amendment rights).
20. See infra Part II (reviewing the three types of Bivens claims and some statistics regarding their success).
21. See, e.g., infra notes 170–73 and accompanying text (describing cases brought to challenge federal drug policy).
22. For some of the classic formulations of the way that expressive laws work, see generally Robert Cooter, Expressive Law and Economics, 27 J. LEGAL STUD. 585 (1998) and Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995).
23. Expressive laws, after all, are frequently underenforced. See Robert E. Scott, The Limits of Behavioral Theories of Law and Social Norms, 86 VA. L. REV. 1603, 1603 (2000) ("[A] legal ban on smoking in public places or a ‘pooper-scooper’ law can motivate citizens not to smoke in certain areas or to clean up after their dogs even where the state has no resources invested in direct (or first order) enforcement."). However, expressive and symbolic laws are usually about something—and the usual Bivens claim is not, at least not about something legally viable.


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or disinterested investigators to file suits against the government leadership provides a sort of democratic access to those leaders. Personal liability in this way offers claims of accessibility to all levels of the government to whoever wants to avail themselves of them.
Nonetheless, even conceding these advantages, we might worry about the system. Symbolism and the pursuit of fora to harangue important people—such advantages have a political ring. Perhaps these personal sanctions really just provide opportunities to essentially pursue political ends. And if that is the case, the usefulness of turning to the legal system to resolve these sorts of complaints is much less clear.
It turns out that lawsuits are not particularly effective mechanisms through which to pursue political values. Instead, it could be that pursuing less overtly legal mechanisms, such as the so-called "Washington scandal" might be a better—although certainly not perfect—way of expressing disagreement with the political views of a senior government official. If so, a few simple reforms might be in order.
In Part II of this Article, I delve into the Bivens suit in detail.24 I compare the high-profile claims against high-profile defendants being made today with the law enforcement and other claims made in the modern Bivens complaint. Because comparison is useful, I compare these tort suits to two alternatives. In Part III of the Article, I consider criminal prosecutions against government officials. What role does that alternative form of individual liability play in supervisor management? How does it work? I answer these questions by looking to the history of the prosecutions of federal officials under the Independent Counsel statute and consider a decade’s worth of reports by the Department of Justice’s Public Integrity Section. In Part IV, the Conclusion, I evaluate the regime of individual liability and suggest that of all the personal sanctions imposed on government officials, an extra-legal one, the so-called Washington scandal, might be the best of an imperfect set of vehicles for realizing policy debates. I accordingly discuss how we might create an environment that incentivizes less litigious forms of personal liability. Finally, I evaluate what the legal environment of personal liability can tell us about a popular project among government reformers: the decentralization of authority. I think that the difficult, often fruitless, and transaction-cost-laden personal liability regime serves as a corrective against decentralization triumphalists, though it exemplifies the increasing importance of decentralized governance in American life.

24. I do so in even more detail in David Zaring, New Constitutional Torts, 2 J. TORT L., (2008).



A note about methodology: Comparing tort complaints, criminal prosecutions, and scandals makes for a comprehensive enough story about the personal risks policymakers face, but it does not lend itself to apples-to-apples analysis. Nonetheless, the qualitative approach taken here is supplemented with analyses of collections of cases and complaints, as well as the occasional table designed to illustrate aspects of the curious role of personal sanctions today.25 This data is used for illustrative and descriptive purposes, and the approach is a qualitative one.

II. Three Kinds of Bivens Actions
In what follows, I begin with a brief review of constitutional tort doctrine, which, as handed down by the Supreme Court, has been almost uniformly hostile to would-be plaintiffs since 1982. I then look in detail at three kinds of claimants who nonetheless choose to be plaintiffs. I consider the new series of high-profile policy suits, which tend to be directed at policies, and particularly policies related to the ongoing war on terror, law enforcement suits, and pro se/everybody else suits.26 I conclude with a brief evaluation of the constitutional tort as a mechanism of decentralized governance.
Bivens suits have been around for thirty-six years, have been the subject of a rich scholarly literature, at least for their first two decades, and, as the Supreme Court has, since 1982, regularly curtailed the remedy, have been afflicted with regular intimations of desuetude.27 Is there more than the headline-making current suits to prompt a re-examination of these suits now?

25. For the best-known primer on how to conduct this sort of research, see generally GARY KING ET AL., DESIGNING SOCIAL INQUIRY: SCIENTIFIC INFERENCE IN QUALITATIVE RESEARCH (1994).
26. To provide another mild word about the methods adopted in this section, any sort of effort to trifurcate a cause of action by type of plaintiff risks oversimplification. In particular, the new high-profile plaintiffs have often concerned themselves with suing law enforcement officials, partly because many of them have been detained by those officials pursuant to the socalled war on terror. These cases blur the edges between the "new" sort of complaint and the very traditional ones involving use-of-force claims. Likewise, some high-profile plaintiffs can file suits just as meritless as those of the pro se variety; Valerie Plame’s case against Karl Rove, for example, did not appear to have much of a link to any constitutional violation that any court has found before. Here too, the new type of suit merges a bit with the desperate case.
27. See, e.g., Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results Of Public Officials’ Individual Liability Under Bivens, 88 GEO. L.J. 65, 66 (1999) ("When analyzed by traditional measures of a claim’s ‘success’—whether damages were obtained through settlement or court order—Bivens litigation is fruitless and wasteful, because it does not provide the remedies contemplated by the decision, and it burdens litigants and the judicial system.").


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Two strains of recent scholarship provide points of departure for this part of this Article.
First, recent administrative law historical research suggests that the tort suit was an important part—indeed, in some ways the only part—of early administrative law. As Jerry Mashaw has recently reminded us, "[j]udged by the statutes of the Federalist period, administrators were often expected to be supervised by lawsuits."28 In fact, individual liability was a primary form of administrative law, though Mashaw shows that other more "modern" forms of extrajudicial command and control were also evident during the early republic.29 Still, in this period, tort suits had pride of place.30 Congress provided for individual liability in a number of statutes authorizing the nascent federal bureaucracy, required government officials to post bonds that could satisfy potential judgments against them, and created qui tam actions in many circumstances that permitted individuals to sue the officials for dereliction of duties.31
Nor was the United States unique in using the tort suit to constrain policymakers. In other legal systems, tort suits against government officials, particularly before the late nineteenth century professionalization and bureaucratization of the civil service, were often the only means available to regulate government conduct.32 Mashaw’s work is scrupulously historical, but

28. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 YALE L.J. 1256, 1316 (2006). Apparently, the past has relied upon different notions of the public and private spheres of government work. Because common law actions against government officials turned on the personal culpability of the defendant, they avoided the public-private distinctions that have been enshrined in prominent modern doctrines such as sovereign immunity and state action.
29. See id. at 1260 ("From the earliest days of the Republic, Congress delegated broad authority to administrators, armed them with extrajudicial coercive power, created systems of administrative adjudication, and provided for judicial review of administrative action.").
30. See id. at 1258 ("Until well into the twentieth century federal judicial remedies respecting administrative action took two dominant forms: either a common law action against the officer or a suit challenging the constitutionality of the administrator’s authorizing statute. From this perspective administrative law disappears into common law subjects like torts . . . .").
31. See id. at 1317–18 ("Once again qui tam actions were often provided by statute as a means of recovering from wayward officials." (citing An Act for Establishing Trading Houses with the Indian Tribes, ch. 13, § 3, 1 Stat. 452, 452–53 (1796) (concerning violations of Indian trading laws by Indian agents); An Act To Incorporate the Subscribers to the Bank of the United States, ch. 10, § 8, 1 Stat. 191, 195–96 (1791) (concerning illegal activities by officials of the Bank of the United States); An Act Providing for the Enumeration of the Inhabitants of the United States, ch. 2, § 3, 1 Stat. 101, 102 (1790) (concerning a marshal’s failure to file census returns))). For example, postal and tax officials who abused their posts were subject to tort suits. As Mashaw has explained, "Official immunity was nonexistent. The officers’ only defense was that they were carrying out their statutory responsibilities." Id. at 1321.
32. Aristotle described how during the Periclean period Ephialtes reformed the Council of



his effort to reclaim the "lost century" of administrative law in the United
States, and in doing so to remind us of the importance of the tort suit as the
principal vehicle of constraint on government action, invites consideration of how personal liability works now.33 Tort mattered then and was used to rein in
government excesses. Does it still matter?
Second, the liability of leadership is on the table elsewhere. Consider the
recent research of Bernard Black, Stephen Cheffins, and Michael Klausner on the personal liability of outside directors of corporations.34 In corporate law, as
in suits against the government, these sorts of high level suits have a high
profile—they resulted in judgments in the litigation that followed the failures of Enron and WorldCom, and that, in turn, led to generous press coverage.35
However, suits against outside directors very rarely result in actual judgments against the defendants who run the corporations at issue.36 Black, Cheffins,
and Klausner concluded that this sort of liability exists only in cases of a
"perfect storm" or when a director "can’t afford to win" because of the expenses of litigation and underinsurance.37 But they also noted that:

the Areopagus: "First, he put to death many of its members by impeaching them of offenses committed in their administration." ARISTOTLE, CONSTITUTION OF ATHENS 25 (Edward Poste trans., Rothman & Co. 2d ed. 1993) (1892); see also Adriaan Lanni, Precedent and Legal Reasoning in Classical Athenian Courts: A Noble Lie?, 43 AM. J. LEGAL HIST. 27, 32 (1999) ("Hagnon’s proposal to try Pericles indicates how casual the Athenians could be about the legal basis of a lawsuit: according to Plutarch, he proposed that Pericles be tried before fifteen hundred jurors, ‘no matter whether it is called a prosecution for embezzlement (klope), bribery (doron), or a misdemeanor (adikion).’" (quoting PLUTARCH, PERICLES 32)); Robin Osborne, Law in Action in Classical Athens, 105 J. HELLENIC STUD. 40, 52 (1985) (describing the role of courts in Athenian society). And indeed, there is a conventional view that the English common law crowded out the field of administrative years until long after it had become a viable American field. See Ridge v. Baldwin, [1964] A.C. 40, 72 (H.L.) ("We do not have a developed system of administrative law—perhaps because until fairly recently we did not need it."); A. DICEY, AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 326 (7th ed. 1908) ("The words ‘administrative law,’ . . . are unknown to English judges and counsel, and are in themselves hardly intelligible without further explanation. . . . [T]he want of a name arises at bottom from our non-recognition of the thing itself.").
33. See Mashaw, supra note 28, at 1260 ("[A]dministrative law has a century of history at the national level that has yet to be carefully explored."). See generally Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801–1829, 116 YALE L.J. 1636 (2007).
34. See generally Bernard Black et al., Outside Director Liability, 58 STAN. L. REV. 1055 (2006).
35. See id. at 1057 ("Outside director liability is again causing much concern, with the current trigger being the 2005 securities class action settlements involving WorldCom and Enron.").
36. See id. at 1060–61 (describing the rarity of success in suits against directors).
37. Id.


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The conventional wisdom was that being an outside director of a public company was risky. Fear of liability has for some time been a leading reason why potential candidates turn down board positions. . . . Outside directors are concerned instead that . . . they will be sued for oversight failures when, unbeknownst to them, management has behaved badly.38
Is the liability concern—perhaps over-concern—of corporate board members shared by senior government officials?
An answer to these questions will also have something to say about a substantial chunk of the docket of the federal courts. The Torts Branch of the Department of Justice has estimated that it faces "about five thousand Bivens claims per year against, typically, four to five defendants" each.39
Moreover, Bivens claims are more important potential constraints than are other tort vehicles for suits and particular government officials: the Federal Tort Claims Act (FTCA)40 and § 198341—a cause of action that, at least in theory, only differs from the Bivens case on the basis of the level of government that employs the individual defendant.42 But FTCA claims are not allowed to be made against officials exercising their discretion—that is, making policy— and so are a bit less interesting to an administrative lawyer.43 As for § 1983,

38. Id. at 1058.
39. William P. Kratzke, Some Recommendations Concerning Tort Liability of Government and its Employees for Torts and Constitutional Torts, 9 ADMIN. L.J. AM. U. 1105, 1151 (1996) (citing interviews with Torts Branch officials). A very large percentage of these cases are brought by prisoners. See id. ("Many prisoners bring Bivens claims because they have time on their hands and are unhappy with their lot.").
40. See Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680 (2000) (authorizing suits against the United States for the torts committed by federal officials).
41. See 42 U.S.C. § 1983 (2000) (granting the right to sue state officials who, acting "under color of" state law, deprive a person of constitutionally protected rights).
42. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 235 (1974) (holding the dismissal of § 1983 actions against a governor, under the common-law doctrine of executive immunity, to be inappropriate), abrogated by Harlow v. Fitzgerald, 457 U.S. 800 (1982). For an overview and defense of the liability of high-ranking state and local officials, see generally Kit Kinports, The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases, 1997 U. ILL. L. REV. 147. See also Michael S. Greve, Business, the States, and Federalism’s Political Economy, 25 HARV. J.L. & PUB. POL’Y 895, 913 (2002) ("When the average mayor or governor thinks of ‘commandeering,’ what comes to his mind is not the rare direct federal intervention of the sort at issue in New York v. United States and Printz v. United States but rather a private lawsuit under § 1983.").
43. Compare Harlow v. Fitzgerald, 457 U.S. 800, 806–07 (1982) (discussing immunity from lawsuits for executive branch officials), with Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified as amended in scattered sections of 28 U.S.C.) (providing, inter alia, immunization for federal employees acting within the scope of their employment). This combination makes the policy motivated non-Bivens tort suit difficult to maintain. The relevant provision of the Westfall Act is codified at 28 U.S.C. § 2679 (2000).

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Personal Liability as Administrative Law