When should we personally sanction government officials? It's obviously an interest of mine. Here's Reiner Kraakman on when we might want to assess personal liability on corporate employees, from back in the day. Kraakman thought personal liability should only apply as a "backstop" to enterprise liability (and can we analogize the agency to the firm?) when enterprise liability fails - which it might in three cases:
"These failures are (1) asset insufficiency, when firms lack the assets to pay the law's price for their delicts; (2) sanction insufficiency, when the legal system cannot charge a price high enough to deter firm delicts for whatever reason, including asset insufficiency; and (3) enforcement insufficiency, when the legal system cannot even detect or prosecute a significant proportion of offenses."
The government has lot of assets and lots of sovereign immunity, so that's something relevant to the first two of Kraakman's insufficiencies. I'll leave it to readers to assess the prospects of enforcement insufficiency.
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1. Posted by David Zaring on July 9, 2007 @ 1:51 | Permalink
Just to treat the quoted author fairly, I'll note that he also says this:
"Large public bureaucracies may lack internal monitors with the organizational power and coherent incentives of private sector managers. The difficulty of choosing the right unit-and the right budget-to charge for public torts triggers all the familiar considerations of risk bearing, agency costs, informational access, and uncompensated harm that condition the choice of liability strategies in the private sector."
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