YEARS AGO, when I arrived in Washington for my first job as a lawyer, I wandered into one of the city's cafeterias. Clustered around the next table were several government employes. I overheard one of them ask the others, "Whatever happened to old Charlie?" The response was, "Oh, he's at Agriculture now, hanging on beautifully." Charlie must have been the quintessential bureaucratic risk-minimizer. Yale Law Professor Peter Schuck's book is, in a sense, about self-protective Charlie, government wombat.
Don't be misled by Schuck's cookbook title. Suing Government is not one of those how-to volumes, of the sort often lodged on best-seller lists, that purport to tell you how to pay zero income tax, gain incalculable wealth within three weeks, or write a valid will on a matchbook cover. This book concerns the remedies available to private citizens to redress noncriminal wrongdoing by government agents and government itself. It is a major effort that deserves the attention of those in the executive branch who have no wish to mimic Charlie and of legislators, judges, and all other serious students of government.
There can be little question that our bureaucratic, activist state--a ubiquitous one, impinging in myriad ways on people's lives--stimulates and nurtures misconduct by its agents. This does not mean that the citizen, damaged in his person or his property, is wholly helpless; far from it. Beginning with the school desegregation cases of the '50s there has been a legal convulsion out of which has emerged a profusion of newly created rights against federal, state, and local governments and newly crafted procedures for enforcing those rights. Next came a proliferation of remedies, aimed at securing official accountability. This remedial transformation, largely engineered by Congress and the federal courts, is so recent that its implications have not been adequately assessed. That is the task, not an easy one, set for himself by the author of this important book.
The importance of Schuck's work stems in large part from his breadth and clarity of viewpoint. Most scholars, especially legal ones, set their sights low. They nibble away at increasingly narrow and recondite problems, in notes composed in an impenetrable idiom and dispatched to each other through learned journals. A few, a very few--members of that influential band of critical scholars who are the envy of my life--seek a wide-angled perspective on large issues and attempt, when they are called for, to frame commensurately broad reforms. Schuck is in the latter class. The author of Suing Government lifts the subject of public tort remedies out of the narrow technical mold in which it is customarily cast and looks at it from the larger perspective of social policy and regulatory methodology. In other words, this is not a book about constitutional law or administrative law or civil procedure; it is a book about all of these inextricably intertwined specialties.
Although precise figures are hard to come by, Schuck is satisfied on the basis of the "impressionistic evidence" that the defendants in public law damage actions are usually individual government employes at the lowest level of the organizational chart. (These are the men and women whom political scientist Michael Lipsky dubbed "the street-level bureaucrats.") After all, there are so many of them and they are the ones who deal directly and visibly with the general public. Moreover, the Supreme Court has tended to make policy- level officials poor targets for damage actions, swathing them in conditional immunities.
Schuck believes a remedial system that targets the individual, low-level bureaucrat produces undesirable byproducts. In the first place, it may aggravate their propensity to avoid taking risks in decision-making, even though on paper they have a great deal of usable discretion. Put another way, it spawns Charlies. It may also inspire self-protection strategies that themselves stifle vigorous decision-making. A final, perverse result of the remedy explosion is the potential shift, or reversion, to crudely reactionary immunity rules that would snatch back the citizen's newfound remedies.
Schuck does not indulge in that gambit frequently employed by scholars who have been overwhelmed by their subject--a prefatory disclaimer that the writer has undertaken anything more ambitious than a set of provocative questions. Schuck goes for the answers. Of course, he understands the key questions. They commence with "What purposes should public tort remedies serve?" and end with the one that is the concluding sentence of many unsatisfactory studies: "How do we get from here to there?"
One cannot in this space adequately describe the answers that Schuck proposes. The centerpiece of his restructuring is an expansion of governmental liability for damages, institutional as distinguished from individual liability for misconduct. To lawyers accustomed to conducting private tort litigation against, for example, railroads or manufacturers of defective products, this is not a radical suggestion. They sue the railroad, not its crossing guard.
Schuck explains how his proposed upward adjustment of focus would be implemented. For one thing, a loosening of the Federal Tort Claims Act would be essential. He is convinced that an elevation of litigation focus, accompanied by some inevitable internal bureaucratic mechanisms, would tend to deter official wrongdoing at the street level. (Sue the railroad and its management will soon install crossing gates.) He anticipates that this benefit can be gained while at the same time vigorous decision-making is encouraged. But Schuck has elaborate suggestions for further implementation of public tort law, including a clear-eyed and quite specific analysis of the role of the courts. Trial judges may cringe at being summoned to make new and more artful intrusions into the operation of government. Half smothered by the flow of judicial business, they know, as Judge Milton Shadur recently remarked, that not even Learned Hand could be Learned Hand today. But Schuck's judicial blueprint should be studied even though there may be a missing specification: more judges, better supported.
All of this Professor Schuck accomplishes with admirable directness and economy of expression. He tells us what he is going to do, does it, and then tells us what he will do next, in plain English. This device lifts a heavy subject and makes it comprehensible. In short, Suing Government is a model endeavor, fit for emulation by anyone who seeks on paper to explain and solve complex problems.