Tom Bell on Sovereign Immunity

Some important and interesting comments on sovereign immunity at Agoraphilia. The best thing is that Prof. Bell asks the right question: what makes governmental immunity different than immunity for private actors? In a society based on the principle that "all men are created equal," the concept of immunity for governmental actors must rest on some principled distinction between harms caused by businesses and harms caused by governments. And I have never encountered a good distinction. In Owen v. City of Independence, 445 U.S. 622 (1980), the Supreme Court recognized that economic incentives were good reason for cities to have to pay for violating individual rights. “The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights,” wrote Justice Brennan. Since “it is the public at large which enjoys the benefits of the government’s activities, and it is the public at large which is ultimately responsible for its administration…it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights…have been violated.” Quite so. If it's sauce for private companies, it should be sauce for government as well.