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Inspired by this story about a woman who received a payout after having her rights violated by the TSA: http://www.thesmokinggun.com/documents/stupid/tsa-pays-breast-exposure-suit

Although the payment involved was small, it made me wonder: Is it proper for the government to pay damages in the event that a citizen challenges an unjust law and wins? I wouldn't deny that the victim of a rights violation deserves some kind of restitution. However, when the violator is the government, the government cannot pay restitution except with taxpayer money, which is in turn obtained by a violation of rights. Can it be proper, then, for the government to pay out damages in lawsuits, or is the proper outcome of such a case the overturning of the unjust law (which didn't happen in the case above, as the TSA certainly still exists)? The payment of damages from the pockets of government employees and/or their dismissal, if they overstepped the bounds of the law, as they did in the case above? (The TSA workers joked about a traveler in public after exposing her breasts to full view.)

asked Jan 14 '11 at 07:39

stellavision's gravatar image

stellavision ♦

In this case, she should have been able to sue the TSA employees.

(Jan 15 '11 at 08:46) anthony anthony's gravatar image

In the mixed political system we are currently under, there is no way that victims of government can be made entirely whole without the cost coming from the taxpayers. Whether it is in the final jury award in a civil case or the imposition of fines and prison time in the (very rare) instances where a government functionary is actually held to account for their violations of individual rights, the costs will still be borne by the taxpayers.

One method of mitigating this issue, both from the causal side and the denouement side, would be to remove immunity from all government officials, especially those in the criminal justice system such as police (with qualified immunity), prosecutors and judges (who have absolute immunity). Then their assets would be available to make good the harm they inflicted on the innocent citizen and the prospect of being held civilly as well as criminally responsible for their misdeeds committed under colour of law would curtail the blatant abuses that are rampant in the system today. Does anyone think that Mike Nifong actually had justice served on him by one night in jail for contempt when he perjured himself, denied exculpatory evidence, defamed the defendants and conspired to rob them of their liberty for a minimum of 15 years?

One of the problems with the current legal system is that it is a classic case of regulatory capture. The prosecutors who theoretically are charged with maintaining the integrity of the police departments under their control by virtue of their capacity to bring indictiments to the grand jury, are instead complicit with such abuses as occur until they become political liabilities. One way of dealing with this is to avoid an institutional setup for regulatory capture: Use instead, the citizenry who are called to serve on juries. Each civil or criminal jury, having completed their civic responsibility in the case before them, can, entirely at their own discretion, reconvene themselves as a grand jury and indict any actor in the case they just oversaw, from witnesses to the judiciary itself, for malfeasance as observed. This ad hoc arrangment in regard to the persons involved (not the process) would make regulatory capture very difficult. Prosecutors in that venue would be required to bring the case forward and in the event the prosecutor himself was indicted, an appropriate change of venue required.

While I don't think that this would solve all of the problems of government misconduct, it would afford some countervailing impetus to the current rampage of unaccountable police, prosecutors and judges. Even if such consequences were only political in nature. I think that ultimately, accountability of government actors has to occur at every level; Administratively, Civilly, Criminally, and Politically. When people exercise the power of coercion in government, they need to be held to account by all means that the citizenry can muster.

answered Jan 15 '11 at 14:03

c_andrew's gravatar image

c_andrew ♦

edited Jan 15 '11 at 14:06

Can you explain "institutional setup for regulatory capture?" Thanks.

(Jan 15 '11 at 14:56) Mindy Newton ♦ Mindy%20Newton's gravatar image

Regulatory Capture occurs when a state regulatory agency created to act in the public interest instead advances the commercial or special interests that dominate the industry or sector it is charged with regulating. In this instance, prosecutors are charged with policing the legal system with appropriate sanctions for misconduct. They generally default on this unless the conduct is politically damaging. Even then, malefactors are treated more leniently than the rest of the citizenry. Any concentration of public power (cont)

(Jan 15 '11 at 17:06) c_andrew ♦ c_andrew's gravatar image

is susceptible to this effect. It does not require corruption in the usual sense. For instance, a State Insurance Board will be more receptive to arguments from the personnel of businesses it regulates because it deals with them on an ongoing basis. Regulators will encounter the same complaining consumer, unless chronically so (which carries its own disadvantages) perhaps once or twice in their entire careers. Who will carry more weight? This is the essence of regulatory capture. In extreme cases those enterprises that "required" the enactment of regulation are often the first exempted from it

(Jan 15 '11 at 17:12) c_andrew ♦ c_andrew's gravatar image
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Asked: Jan 14 '11 at 07:39

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Last updated: Jan 15 '11 at 17:12