January 24, 2008
Should Government Officials Buy Private Insurance?
Posted by David Zaring

Suing senior government officials in their personal capacity is all the rage these days.  Valerie Plame is doing it.  Jose Padilla is suing John Yoo.  And lots of other war on terror victims are pinning their hopes of the prospect of obtaining monetary damages against Donald Rumsfeld, Karl Rove, and the employees who are detaining them.  Roger Alford and Steve Vladeck debate the wisdom of this kind of accountability here and here.

I think that these sorts of suits are pretty new in aspiration, but are likely to have the same result almost all the old kinds of personal liability suits have had: dismissal at an early stage of the litigation.  Which makes you wonder: why are government employees purchasing private liability insurance that covers these sorts of claims?  Insurance is close enough to a corporate and economic subject to be Glom-worthy, I think.

Well, for one thing, the insurance is cheap - 300 bucks a year, and in many cases, the government will pick up half the tab.  Moreover, supervisors who purchase policies are probably a lot more worried about employment discrimination claims than tort suits.  And the line bureaucrats who buy insurance are probably overwhelmingly the kind of law enforcement officials who have always had to worry about excessive use of force claims.  So I don't know that the increasing popularity of this insurance - some 30,000 employees have it - demonstrates that the new wave of Bivens litigation is affecting government behavior.

I do suspect, however, that the growth in interesting Bivens plaintiffs is interesting because of the, well, plaintiffs.  These claimants are largely war on terror related, and I suspect that their Bivens cases are meant to remind everyone that said war is still ongoing, that they are still being detained or calumnied or whatever, and that their non-Bivens legal options are few.  And, given the attention paid to these unlikely and often-dismissed claims, the public relations, if not the legal, strategy is working.

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