American Public Law

For all the sturm und drang over tort reform, you'd think American tort law was deeply flawed. But, you would be wrong. American private law isn't perfect, but honestly, most of the rules of tort law are common sense moral intuition. The vast majority of the time, even if the rules were different, juries would bend and twist them to look more like they do now.

The elements of fraud, for example, procedurally, come from quotations of countless appellate court decisions. But, in practice, those legal elements simply define something that our broader culture finds morally culpable. The common law was developed by common sense English and American judges for a millenium, and the rules work.

American public law, in contrast, is not healthy. We are trying to bootstap a legal system rooted in a minimalist English monarchy into a functional way of managing a sprawling governmental empire that accounts for a substantial fraction of the country's entire economic output.

Some of the major reforms of American history that were designed to stop corruption, like the civil service system and extensive regulation of government contractors, have so hobbled the functioning of some kinds of governmental activities that the temptation to simply scuttle them by privatizing government functions is immense.

We have done a poor job of striking a balance between allowing government actors to act wrongfully with impunity, and opening the floodgates of liability to anyone who tries to do their job in public service.

Key doctrines in American public law, like "standing" reflect this connundrum. Standing is generally obvious when individuals are involved, but is often a puzzling doctrine in public law cases with no clear application. Conservatives on the Supreme Court and elsewhere want to set the standing bar so high that no one has a right to sue even when government agencies or actors openly flout the rule of law. For example, the U.S. Supreme Court yesterday in a 5-4 decision, held that the Environmental Protection Agency is required by law to regulate pollutants that can lead to global warming. Dissenters didn't seriously argue that the law didn't require the EPA to do this, but instead, argued that no one has an injury particularized enough to bring suit to force the EPA to do what it is required by law to do.

Liberals, driven by the contours of precedent that leave them no other options for holding government accountable, have been forced to push for rules that hold individuals personally culpable even when they aren't truly the culpable individuals.

Some of this is just a legal fiction. For example, the defendant in a suit alleging someone has been wrongfully convicted or sentenced for a crime at trial and on direct appeal, called a habeas corpus suit, is formally brought against the prison warden, who, of course, is simply following court orders 98% of the time. No one would expect a prison warden to actually release a prisoner being held pursuant to a criminal court conviction upheld on appeal because the warden didn't believe that the judges got the law right. Searching legal analysis of the validity of convictions isn't in a prison warden's job description.

In practice, while the warden is sued all the time and serves as the named defendant, he turns the lawsuit over to the relevant attorney general, sits back unworried about any personal consequences, and does whatever the court orders when a judgment is rendered. Outside of rare cases like the Jose Padilla case, where the government plays games by shifting the detained person from one place to another all over the country, the actual warden of the prisoner is utterly irrelevant.

Indeed, many states have virtually abolished habeas corpus, per se, as a means for collateral attack on convictions, instead substituting a criminal procedure rule which is substantively the same, but lacks the procedural and historical quirks of the great writ. In Colorado, for example, the pomp and circumstance of the writ of habeas corpus has been largely replaced by Colorado Rule of Criminal Procedure 35, which governs post-convinction remedies. This rule, among other things, makes a request for post-conviction relief a part of the continuing original criminal case, rather than a separate civil action.

In the same vein, a recent lawsuit seeking to adjudicate the federal constitutional sufficiency of Amendment 41 in Colorado (full disclosure, Anne McGihon, with whom I practice law, is a plaintiff in the suit), named Governer Bill Ritter as a defendant. The Denver Post reports today that the attorney general has filed, on his behalf, a defense alleging that he can't be sued because he isn't charged with enforcing that law, an ethics board that doesn't yet exist has that job.

I'm not enough of a guru on the technicalities of this kind of litigation to judge the merits of that defense, but I can say with confidence that it should be simply a formality. The Governor in public law litigation is generally a symbolic defendant. Nobody is going to dock his paycheck if he loses the case, or charge him personally for attorneys' fees in the case.

The plethora of plaintiffs in the Amendment 41 case, and the choice of defendants, both reflect a tradition ridden, standing hobbled tradition of public law litigation. We lack an alternative to do cleanly what ought to be a straightforward task -- a way to quickly obtain a binding court interpretation of what legislation means and whether it is constitutionally valid. Most Western governments have constitutions that expressly give a number of people the power to bring this kind of case, often in a special constitutional court or other public law tribunal. Americans, in contrast, are fuzzy about whether anyone other than line executives in the government, has a right to compel the government to follow the law outside isolated cases.

At other times, the focus on individuals is quite a bit more than a legal fiction. When an agency doesn't do its job, often a remedy is to hold the agency's top executive in contempt of court, potentially exposing that individual to personal fines and imprisonment. Secretary Norton, who faced contempt proceedings in connection with the U.S. Department of Interior's handling of Indian Trust accounts discovered this first hand, as did the Colorado official in charge of the state's mental hospital for the criminally insane, which stopped accepting court orders to take on new patients.

In civil rights suits, the "normal" course is to seek money damages from the particular individuals who committed the wrong doing. But, should the cost of insuring against abusive cops really be finances out of the personal assets of these government employees? Wouldn't it make more sense to hold government's accountable for bad cops, and thereby give them an incentive to maintain discipline in the force as a whole? The requirement that individual participants in the acts be defendants in civil suits is one factor that makes the law surrounding these incidents so convoluted.

As I've noted in previous posts, governmental immunity, likewise, often leads to absurd and unjust results. Our treatment of whistle blowers is also problematic.

While it is a major project, ultimately, I think that this apple is rotten to the core. We need to fundamentally rethink the principles of American public law, because while solving its problems piecemeal can solve some problems, a flawed structure for the entire system invites unforeseeable consequences of a bandaid fix to crop up somewhere else.