State Compensation: From Confirming Illegality to Recovering Loss

Abstract

This volume asks why compensation is not paid even when the illegality of administrative action has been established. The revocation of a disposition and compensation differ in their requirements and functions. Illegality in the performance of official duties, culpability, loss, and causation must be distinguished from defects in public facilities so that confirmation of illegality does not automatically turn into monetary recovery. The path to relief opens where the requirements of the relevant liability, such as an unlawful act in the performance of official duties or a defect in a public facility together with loss and causation, are satisfied and the statutory limitations and exceptions have been applied, and closes where only illegality is confirmed while protected loss and causation, or another essential requirement of the relevant liability, are not recognized. The six sections address, in turn, the distance between illegality and liability for compensation, the interests meant to be protected, the separate basis for defects in public facilities, special limitations and new exceptions, compensation by the State and recourse against public officials, and remaining loss and supplementary statutes. The strongest counterargument is as follows. If it is difficult for an individual to establish negligence internal to an agency, the loss caused by unlawful administration remains with the victim. The substantive duty of care of external auditors, the credibility of experts, guidance on institutional liability, and the management of informal contacts are not addressed in this volume.