Personal Liability as Administrative Law

Administrative Law has almost exclusively concerned itself with Lawsuits against agencies as collective entities, under the auspices of the Administrative Procedure Act. In light of the growing number and prominence ofsuits by war on terror plaintiffs against senior government officials, this Article considers the use ofpersonal liability to discipline government officials and assesses it as an alternative to traditional administrative Law. It compares the civil suits to criminal prosecutions of these officials and compares both of them to lessobviously Law related scandal campaigns. Personal sanctions--of which Bivens complaints are a principal example-are worth more attention.

These mechanisms, and the constitutional tort in particular, are case studies of the popular inclination to decentralize government, of the value ofsymbolic Laws, and, increasingly, of the personalization of Law and politics. Solving some of the problems ofpersonal liability, as it works today, might best be done not by enhancing the bite of the always-challenged Lawsuits and prosecutions, but by making sure that the Law makes it more possible for political cases to be made against government officials, rather than legal ones.