Integrating Governmental and Officer Tort Liability

The legislative and judicial dismantling of sovereign immunity is among the more significant and celebrated reforms of recent American administrative law. In many instances, this development has given those seeking damages for wrongful governmental action their first and only defendant. Even in situations in which litigants already had a cause of action against individual public officials, making the government amenable to suit has enhanced the chances of actual recovery, since officials often lack the means to satisfy judgments rendered against them. The immunity from liability enjoyed by public officials also has undergone a complex series of changes. Though still in flux, this controversial area of the law today finds officials exposed to a considerable risk of personal liability for the wrongs they commit in connection with their performance of duty. Although these developments might have gone even further in lowering the shield of immunity from the government and its officers, they represent a blessing for the victims of official wrongdoing. However, the emerging coexistence of governmental and officer liability has created a new problem of coordination. Without attempting to define the proper scope of liability for harm arising out of governmental activity, this Article explores various aspects of the coordination problem. After briefly sketching recent developments in governmental and officer immunity, and discussing the need for a coherent system of governmental tort law, I shall examine various ways of integrating governmental and officer tort liability so as to accommodate the purposes that the law of governmental torts may appropriately be asked to serve. A brief look will be taken in this connection at the approaches to the problem that have been adopted in French and German law