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.

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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)

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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.

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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.

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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.

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For previous issues of THE LIGHTHOUSE, see
http://www.independent.org/tii/lighthouse/LHLink2-39-10.html.

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For information on books and other publications from The Independent
Institute, see
http://www.independent.org/tii/lighthouse/LHLink2-39-11.html.

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For information on The Independent Institute's upcoming Independent
Policy Forums, see
http://www.independent.org/tii/lighthouse/LHLink2-39-12.html.

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