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THE LIGHTHOUSE
"Enlightening Ideas for Public Policy..." VOL. 2, ISSUE 39 October 10, 2000 Welcome to The Lighthouse, the e-mail newsletter of The Independent Institute, the non-partisan, public policy research organization <http://www.independent.org<;. We provide you with updates of the Institute's current research publications, events and media programs. ------------------------------------------------------------- IN THIS WEEK'S ISSUE: 1. Holding Bureaucrats Personally Accountable: A 1st Amendment Victory 2. The Independent Review: Fall Issue Now Available 3. Public Health vs. The Nanny State? -- Next Independent Policy Forum (10/26/00) ------------------------------------------------------------- HOLDING BUREAUCRATS PERSONALLY ACCOUNTABLE: A 1st Amendment Victory The legal doctrine of "sovereign immunity" -- and its modern cousin, "qualified immunity" -- has historically allowed government bureaucrats to escape full accountability for misdeeds they have perpetrated under the guise of government "policy." Thus, a recent decision by the Ninth Circuit Court of Appeals -- ruling that a group of government bureaucrats may be held personally liable for outrageous constitutional violations -- is news worthy of celebration. The facts of the case attest to the need for strong checks on government power. Three Berkeley, Calif., residents had campaigned against a proposed homeless shelter in their neighborhood. At the behest of local "housing rights" activists, who said the anti-shelter campaign was discriminatory and violated the Fair Housing Act, the U.S. Department of Housing and Urban Development (HUD) got into the act. HUD officials demanded interviews with the three anti-shelter neighbors, told their neighbors they had violated the law, and ordered them to give HUD all materials -- including the names, addresses and phone numbers of other opponents of the shelter -- that they had collected for their campaign. To the "Berkeley Three," HUD's harassment violated their freedom of speech. To the appeals court, "qualified immunity" of government bureaucrats did not apply here; the Berkeley Three may proceed with their First Amendment lawsuit against the HUD officials and seek monetary damages. This ruling, although unusual by today's standards, harks back to another early legal tradition: the idea that citizens can hold government officials personally liable for improper conduct. In 1763, John Wilkes, a member of Britain's parliament, was the subject of an outrageous search and seizure warrant issued by Secretary of State Lord Halifax, after Wilkes published an anonymous attack on the government. Wilkes then sued Halifax and other officials and was awarded a sum comparable to $20 million today. Americans were so enraptured with this refutation of unrestrained government power that they made Wilkes a hero and followed in his footsteps, suing government officials for unreasonable search and seizures. Since the 19th century, however, this common-law tradition has nearly withered away. The creation of the exclusionary rule has replaced Wilkes's remedy with an inferior one. While the exclusionary rule brings some satisfaction to criminals who are the subject of unreasonable searches and seizures, it does nothing for the innocent. Furthermore, the 20th century has seen the rise of the doctrine of "qualified immunity," which the U.S. Supreme Court explains "seeks to ensure that [government] defendants 'reasonably can anticipate when their conduct may give rise to liability,' by attaching liability only if '[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" The Ninth Circuit's recent ruling that HUD officials were not acting reasonably when they violated the First Amendment rights of the Berkeley Three is refreshing because it rekindles the idea that civil liability can be a restraint on government power. In an era when bureaucratic violations of the rule of law have become routine, it is an idea long overdue. For the Ninth Circuit's opinion, see http://www.independent.org/tii/lighthouse/LHLink2-39-1.html. For a press release by supporters of the Berkeley Three, the Center for Individual Rights, see "HUD Officials Declared Personally Liable..." at http://www.independent.org/tii/lighthouse/LHLink2-39-2.html. For more information on bureaucratic accountability, see the Independent Institute book CUTTING GREEN TAPE: Toxic Pollutants, Environmental Regulation and the Law, edited by Richard Stroup and Roger Meiners, at http://www.independent.org/tii/lighthouse/LHLink2-39-3.html. For accountability in law enforcement, see the Independent Institute book TO SERVE AND PROTECT: Privatization and Community in Criminal Justice, by Bruce Benson, at http://www.independent.org/tii/lighthouse/LHLink2-39-4.html. For information on lack of bureaucratic accountability and other causes of government failure, see the Independent Institute book BEYOND POLITICS: Markets, Welfare, and the Failure of Bureaucracy, by William C. Mitchell and Randy T. Simmons, at http://www.independent.org/tii/lighthouse/LHLink2-39-5.html. ------------------------------------------------------------- THE INDEPENDENT REVIEW: Fall Issue Now Available * Why did urban rioters of the 1960s target small businesses -- and why have so many commentators rationalized the mob violence? * Are some school-choice proposals more promising than others? * Have economists been too quiet on Medicare reform? * Is taxation morally defensible? * How did racism affect employment on the early railroads? * Why do government bureaucracies in general, and public education in particular, produce such deplorable outcomes? * Why did Reaganomics turn out as it did? These topics and more are discussed in the Fall 2000 issue of THE INDEPENDENT REVIEW: A Journal of Political Economy, the Independent Institute's 160-page quarterly. Contributors to the fall issue include Jonathan Bean, John Merrifield, Robert Helms, Edward Feser, David Bernstein, Hans Sherrer, James Payne, Alan Reynolds, Paul Craig Roberts, Jennifer Roback Morse, Jeffrey Rogers Hummel, Philip Perlmuter, and others. For a summary and links to selected articles (pdf) and book reviews (html), see http://www.independent.org/tii/lighthouse/LHLink2-39-6.html. To recommend THE INDEPENDENT REVIEW to your library, please see http://www.independent.org/tii/lighthouse/LHLink2-39-7.html. ------------------------------------------------------------- PUBLIC HEALTH vs. THE NANNY STATE? -- Next Independent Policy Forum (10/26/00) Barely a day goes by without some news of the latest public health "threat." Serious health hazards, we are told, lurk around every corner -- in water supplies, air, soil, beverages, fast food, second-hand smoke, cellular phones, and food irradiation, just to name a handful. And yet, Americans today live longer than ever! Are markets and private decision-making providing the answers? Or are these dangers real, immediate, and a legitimate mandate for government control? Can we reduce or eliminate health risks without government dictates? How does politics distort perceptions about public health? Will Americans succumb to or rebel against the growing Nanny State's neo-Puritanism and attack on individual choice and responsibility? JACOB SULLUM and THOMAS DiLORENZO will discuss these timely and important issues. SPEAKERS: - Jacob Sullum (Senior Editor, Reason magazine; Author, FOR YOUR OWN GOOD: The Anti-Smoking Crusade and the Tyranny of Public Health) - Thomas DiLorenzo (Professor of Economics, Loyola College of Maryland; Co-author, FROM PATHOLOGY TO POLITICS: Public Health in America) WHEN: Thursday, October 26, 2000 Reception and book signing: 6:30 p.m. Program: 7:00 - 8:30 p.m. WHERE: The Independent Institute Conference Center 100 Swan Way Oakland, CA 94621-1428 For a map and directions, see http://www.independent.org/tii/tii_info/about.html#map TICKETS: $30.00 per person: includes one copy of either Jacob Sullum's book, FOR YOUR OWN GOOD, or Thomas DiLorenzo's book, FROM PATHOLOGY TO POLITICS. Admission without book is $10 per person ($7 for Independent Institute Associate Members) About FOR YOUR OWN GOOD: The Anti-Smoking Crusade and the Tyranny of Public Health: "Sullum is meticulously logical, and his conclusions are implicit in everything he argues. FOR YOUR OWN GOOD has made us think about totalitarianism in this most unlikely context." - NEW YORK TIMES "Intriguing and worthwhile, this book marshals an impressive array of facts and arguments. Thoughtful and articulate." - NEW ENGLAND JOURNAL OF MEDICINE About FROM PATHOLOGY TO POLITICS: Public Health in America: "FROM PATHOLOGY TO POLITICS argues that public health has become a bureaucracy that feels the need to perpetuate itself by expanding into new areas that are more often than not, just plain 'politically correct.'" - WALL STREET JOURNAL For more information about this event, see http://www.independent.org/tii/lighthouse/LHLink2-39-8.html. ------------------------------------------------------------- If you enjoy receiving THE LIGHTHOUSE ... please help us support it. Your supporting Independent Associate Membership enables us to reach thousands of other people. So, please make a contribution to The Independent Institute. See http://www.independent.org/tii/lighthouse/LHLink2-39-9.html to donate, or contact Ms. Priscilla Busch by phone at 510-632-1366 x105, fax to 510-568-6040, email to <PBusch@independent.org<, or snail mail to The Independent Institute, 100 Swan Way, Oakland, CA 94621-1428. All contributions are tax-deductible. Thank you! ------------------------------------------------------------- For previous issues of THE LIGHTHOUSE, see http://www.independent.org/tii/lighthouse/LHLink2-39-10.html. ------------------------------------------------------------- For information on books and other publications from The Independent Institute, see http://www.independent.org/tii/lighthouse/LHLink2-39-11.html. ------------------------------------------------------------- For information on The Independent Institute's upcoming Independent Policy Forums, see http://www.independent.org/tii/lighthouse/LHLink2-39-12.html. ----------------------------------------------------------------- To subscribe (or unsubscribe) to The Lighthouse, please go to http://www.independent.org/subscribe.html, choose "subscribe" (or "unsubscribe"), enter your e-mail address and select The Lighthouse. Or, either send an e-mail message to independent-list-request@free-market.net with the words "unsubscribe" in the body of the message, or e-mail independent@free-market.net and ask to be unsubscribed. Copyright , 2000 The Independent Institute 100 Swan Way Oakland, CA 94621-1428 (510) 632-1366 phone (510) 568-6040 fax info@independent.org http://www.independent.org
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