ABSTRACT
Fictional policy justifications for official negligence are regularly accepted by the federal courts to shield the federal government from liability for ordinary tortious wrongdoing. The lower federal courts have adopted an extravagant interpretation of the discretionary function exception to the Federal Tort Claims Act that applies whenever a policy implication can be theorized. Under this ‘susceptible to policy analysis’ approach, the United States government escapes accountability through after-the-fact speculation regarding policy factors that could have played a role (but actually did not) in the harmful government conduct.
By textual command, the exception shields only government decisions ‘based on’, that is, causally linked to, a ‘discretionary function’, a term of art that means an actual policy judgment. Moreover, the purpose of the exception is to prevent judicial second-guessing of public policy decisions made by the federal government. But the risk of judicial intrusion into the realm of policymaking vanishes when government officials have exercised no policy judgment.
The promise of the FTCA in waiving federal sovereign immunity for common law torts is being suffocated beneath a blanket of immunity stretched to cover not only genuine policy choices, but also the conjectures of government lawyers about a policy ensemble that could have been fashioned. New empirical evidence confirms that the government almost invariably prevails in the new regime of hypothetical policy creep. Garden-variety miscarriages of public safety are transmuted into imaginary policy reflections, leaving victims of carelessness to bear their own losses.
Gregory C Sisk, Immunity for Imaginary Policy in Tort Claims Against the Federal Government, 100 Notre Dame Law Review 729 (2025).
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