Academic

Should Plaintiffs Be Able to Go After the Personal Fortunes of High Officials?

By Gordon Smith, Christine, Hurt, Vic Fleischer, Fred Tung, Lisa Fairfax, David Zaring

It is certainly one way to discipline them, and I've long been interested in the analogies between it and piercing the corporate veil, or otherwise going after the personal assets of directors.  Today the Supreme Court decided, in Ashcroft v. Iqbal, to make that sort of challenge to government officials much more difficult.  High level approval (or formulation) of arguably unconstitutional policies carried out unconstitutionally by low level officials will not be enough for personal liability, former Bush, and current Obama, administration cabinet members will be relieved to hear.  Said officials retain the qualified immunity they enjoy under the Bivens doctrine unless more is pled.

When the plaintiff, amid a sea of others, was detained in allegedly harsh conditions after 9/11, he brought a Bivens suit, not just against his jailers (that would be the typical thing), but also against the AG and director the FBI.  The Court declined to let him do this today, concluding that he had not met the task of "plead[ing] sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin."  A tough test at the pleading stage.

Observations:

• Cardozo's Alex Reinert represented Iqbal both in today's loss before the Supreme Court and in his big win at the Second Circuit.  I've only heard his praises sung on the lawyering side, and you'll want to keep your eye out for his forthcoming Stanford Law Review article on the underlying issues.
• I think that disciplining high government officials by going after their personal well-being (either this way, through the so-called criminalization of politics, or even through Washington's culture of scandal) has little to recommend to it.  But it could be that administrative law through normal means has gotten so hard that resources are being put into this alternative mechanism.  Or at least so I write here.
• Alex and I were on a panel together to discuss these issues at last year's Law and Society meeting.  This year, I'll be doing something on the financial crisis.  Next year, I assume our readership will accuse me of being far too trendy in engaging with that meeting.

Full post as published by Conglomerate on May 18, 2009 (boomark / email).