How Governments Pay: Lawsuits, Budgets, and Police Reform

For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything toward settlements and judgments entered against them. But this finding prompts another question: Where does the money come from, if not from individual officers? The dominant view among those who have considered this question is that settlements and judgments are usually paid from jurisdictions’ general funds with no financial impact on the involved law enforcement agencies, and some have suggested that agencies would have stronger incentives to improve behavior were they required to pay settlements and judgments from their budgets. But, beyond anecdotal information about the practices in a few large agencies, there has been no empirical inquiry into the source of funds used by governments to satisfy suits involving the police.

In this Article, I report the results of the first nationwide study to examine how cities, counties, and states budget for and pay settlements and judgments in cases against law enforcement. Through public records requests, interviews, and other sources, I have collected information about litigation budgeting practices in one hundred jurisdictions across the country. Based on the practices in these one hundred jurisdictions, I make two key findings. First, settlements and judgments are not always—or even usually—paid from jurisdictions’ general funds; instead, cities, counties, and states use a wide range of budgetary arrangements to satisfy their legal liabilities. All told, half of the law enforcement agencies in my study financially contribute in some manner to the satisfaction of lawsuits brought against them.

Second, having a department pay money out of its budget toward settlements and judgments is neither necessary nor sufficient to impose a financial burden on that department. Some law enforcement agencies pay millions from their budgets each year toward settlements and judgments, but the particularities of their jurisdictions’ budgeting arrangements lessen or eliminate altogether the financial impact of these payments on these agencies. On the other hand, smaller agencies that pay nothing from their budgets toward lawsuits may nevertheless have their very existence threatened if liability insurers raise premiums or terminate coverage in response to large payouts.

These findings should expand courts’ and scholars’ understandings of the impact of lawsuits on police reform efforts, inspire experimentation with budgeting arrangements that encourage more caretaking and accountability by law enforcement, and draw attention to the positive role government insurers can and do play in efforts to promote risk management and accountability in policing.

Second-Order Participation in Administrative Law

Public participation has long been a cornerstone of administrative law. Many administrative procedures require participation, and underlying normative theories embrace participation as a way to legitimate the administrative state. It is well recognized that interest groups dominate this participation. Yet the implications of interest-group dominance have been largely overlooked. Administrative law takes virtually no notice of how the dependence on interest groups affects the claimed value of participation.

This Article argues that a close study of interest groups is essential to understanding, and ultimately reforming, administrative participation. It introduces the concept of second-order participation to describe the internal operation of interest groups. It then shows that second-order participation complicates every leading justification of administrative participation and the many practices built atop those justifications. These traditional conceptions of participation cohere only if groups actually speak for a membership, or at least provide information about how and for whom they work. Yet interest groups are seldom transparent, and, as this Article shows, they fall along a spectrum of internal governance with varying degrees of member involvement—with the most effective lobbyists tending to have less internal participation or no members at all. Attending to second-order participation thus provides a new framework for understanding participation, and it illuminates a path for reform.

The Freedom of Speech and Bad Purposes

Can otherwise constitutionally protected speech lose its protection because of the speaker’s supposedly improper purpose? The Supreme Court has sometimes said “no”—but sometimes it has endorsed tests (such as the incitement test) that do turn on a speaker’s purpose. Some lower courts have likewise rejected purpose tests. But others hold that, for instance, a purpose to annoy or distress can turn otherwise protected speech into criminal “harassment,” or that a selfish purpose can strip protection from otherwise protected government employee speech. This Article analyzes purpose tests in First Amendment law, and concludes that such tests are on balance unsound; the protection of speech should not turn on what a factfinder concludes about the speaker’s purposes.

Evolving Jurisdiction Under the Federal Power Act: Promoting Clean Energy Policy

In response to an emerging electricity sector, Congress passed the Federal Power Act (FPA) in 1935 and enshrined a division of jurisdiction between the federal government and the states. Federal jurisdiction would control wholesale electricity and transmission while state jurisdiction would control retail electricity. While Congress intended to establish a jurisdictional bright line, uncertainties in applying this division lie at the heart of some of today’s most important state and federal renewable energy policy challenges. Significant regulatory, structural, and technological changes since the FPA’s passage have tested the adaptability and coherence of this jurisdictional division. To explore the underlying areas of tension that have emerged, I examine two state policies aimed at promoting renewable energy, net metering and feed-in tariffs, and one federal policy, the integration of demand response into wholesale electricity markets. These examples reveal how a strict reading of the retail-wholesale jurisdictional division is ill-suited for the modern electricity sector. They also show how strategic efforts by the Federal Energy Regulatory Commission (FERC), together with state legislatures and public utility commissions, have stretched the limits of the FPA in order to promote clean energy policies. Together these considerations demonstrate that clarifying jurisdictional lines will involve unexpected tradeoffs in substantive policy. This Comment builds on existing literature in several important ways. Some scholars have examined the jurisdictional tensions that underlie individual policies such as net metering, feed-in tariffs, and demand response. Others have considered the congruence of jurisdictional authority, institutional capacity, and political exigency among diverse levels of decisionmaking. This Comment converges these lines of scholarship to provide a thorough account of contemporary challenges confronting the FPA’s jurisdictional division and how they implicate clean energy policy at both state and federal levels. This account is particularly relevant today, given the U.S. Supreme Court’s recent decision in FERC v. Electric Power Supply Association condoning a pragmatic and functional understanding of FERC’s exercise of federal authority over demand response resources.

Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble

Collateral censorship occurs when an intermediary refuses to carry a speaker’s message for fear of legal liability. Election speech intermediaries are prone to engage in collateral censorship because their interests do not align with the interests of election speakers, yet the common law places liability on intermediaries and speakers alike. But collateral censorship is not a problem unique to election speech. It would threaten the vibrancy of Internet speech had it not been for the Communications Decency Act immunizing Internet intermediaries from civil liability (except intellectual property law). The rationales and successes of the CDA justify immunizing election speech intermediaries because they, like Internet intermediaries, do not share the same characteristics as traditional publishers, have misaligned interests that are seldom addressed by the market, and are incentivized to censor valuable speech when uncertain about liability. This Comment proposes model legislation to immunize election speech intermediaries, but only from claims for defamation and violation of state false election speech laws. Such legislation would largely remove election speech intermediaries’ incentive to censor election speech that may seem unlawful (or legally troublesome), but in fact be lawful and highly valuable to our democracy.