Rethinking Sovereign Immunity in the U.S. Federal Tort Claims Act: How Government Liability May Serve the Rule of Law

The U.S. Federal Tort Claims Act is limited by a number of exceptions pursuant to which the Government is not subject to liability, even if a private person could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim based “upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.†However, a broad interpretation of the discretionary function exception can be harmful to the implementation of the law because it restricts government agents’s responsibility. Scholars argue that the separation of powers principle requires a limitation of governmental liablity because courts must accept the decision that agencies make when implementing the law. But separation of powers does not protect unlawful administrative conduct. Rather, the possibility of tort liability can give a negative economic incentive to government agents to avoid violation of the legal requirements. Since the deterrence conception of tort law can help to maintain the rule of law, constitutional considerations ague in favour a broader government liability and a narrow interpretation of the discretionary function exception.