Law Commons^™

Inherently Incompatible: The Irreconcilable Tension Between Corporate Negligence Claims And The Federal Tort Claims Act, Veronica J. Finkelstein

Emory Corporate Governance and Accountability Review

No abstract provided.

Recovering The Tort Remedy For Federal Official Wrongdoing, Gregory Sisk

Notre Dame Law Review

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held personally liable under common-law tort theories, but then routinely were indemnified by the government.

The modern Federal Tort Claims Act (FTCA) roughly replicates the original regime for official wrongdoing by imposing liability directly on the …

Feres: The “Double-Edged Sword”, Kaitlan Price

Dickinson Law Review (2017-Present)

In Feres v. United States, the Supreme Court barred service members from suing the Government under the Federal Tort Claims Act if the injuries occurred “incident to military service.” In establishing this doctrine, the Court discussed the necessity of protecting the military from lawsuits to ensure effective decision-making by military leaders.

Scholars have harshly criticized Feres in the modern era, arguing Feres must be overturned to provide service members with a greater opportunity for recovery. Specifically, many scholars admonish Feres because the Supreme Court failed to provide a clear definition of “incident to military service.” Lacking a clear definition …

Tort Justice Reform, Paul David Stern

University of Michigan Journal of Law Reform

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform …

Estate Of Fortier V. City Of Lewiston: Is Maine's Tort Claims Act Unintelligible?, William I. Olver

Maine Law Review

In Estate of Fortier v. City of Lewiston, the Maine Supreme Judicial Court, sitting as the Law Court, was asked to decide if the City of Lewiston was “using” an aircraft under the Maine Tort Claims Act (MTCA) when it chartered a plane from Twin Cities Air Services (Twin Cities) as part of an Air Force Junior Reserve Officer Training Corp (AFJROTC) exercise. Tragically, the pilot and three AFJROTC cadets from Lewiston High School lost their lives when the plane crashed into Barker Mountain shortly after take-off. The families of the students brought suit against Lewiston, in part, alleging negligence …

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …

Is The Doctor In? The Contemptible Condition Of Immigrant Detainee Healthcare In The U.S. And The Need For A Constitutional Remedy, Kate Bowles

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Ethical Intersections & The Federal Tort Claims Act: An Approach For Government Attorneys, Paul F. Figley

Articles in Law Reviews & Other Academic Journals

This article suggests an ethical approach for government attorneys to follow when making decisions in the special context of the Federal Tort Claims Act. It reviews the history and purpose of the FTCA, the Judgment Fund, and the Westfall Act. It examines the swirl of competing interests that arise from the structure of the FTCA, the many defenses it provides, the deep pocket it grants successful claimants, the complete immunity it grants some tortfeasors, and the methods Congress chose for paying its settlements and judgments. It touches on the ethical obligations of government attorneys. It suggests that government attorneys responsible …

The Continuing Drift Of Federal Sovereign Immunity Jurisprudence, Gregory C. Sisk

William & Mary Law Review

With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the …

A Missed Opportunity: The Federal Tort Claims Act And Civil Rights Actions, Diana Hassel

Oklahoma Law Review

No abstract provided.

Torts: Anderson V. Eichner--Although Faculty Physicians, Resident Physicians, And Interns Face Private Tort Liability For Medical Malpractice, The State Is Immune, Christa L. Britton

Oklahoma Law Review

No abstract provided.

"Any Other Law-Enforcement Officer": Federal Tort Claims Act § 2680(C), Todd R. Wright

Kentucky Law Journal

No abstract provided.

Preserving Discretion Without Sacrificing Deterrence: Federal Governmental Liability In Tort, Harold J. Krent

All Faculty Scholarship

No abstract provided.

United States V. Johnson, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

The Tail Wags The Dog: Judicial Misinterpretation Of The Punitive Damages Ban In The Federal Tort Claims Act, Jeff L. Lewin

William & Mary Law Review

No abstract provided.

Surrogate Immunity: The Government Contract Defense And Products Liability, Richard C. Ausness

Law Faculty Scholarly Articles

The government contract defense is an affirmative defense that shields a manufacturer from liability if the product causing injury complied strictly with design specifications set forth in a government procurement contract. The defense was first used by public works contractors to bar claims against them for damage to land and other property. However, in recent years, product manufacturers have invoked the government contract defense to avoid liability to third parties for defectively designed products supplied to the government.

Despite widespread judicial acceptance of the government contract defense in products liability litigation, a number of issues are still being hotly debated. …

Post-Discharge Failure To Warn: A New Theory Allowing Access To Ftca Recovery, Denise A. Garrison

Kentucky Law Journal

No abstract provided.

United States V. Shearer, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Using The Federal Tort Claims Act To Remedy Property Damage Following Customs Service Seizures, Richard F. Neidhardt

University of Michigan Journal of Law Reform

Part I of this Note explains the general application of the FTCA to tort claims asserted against the federal government. Part II demonstrates the inadequacy of current judicial arguments regarding the adjudication of detention-related property damage claims under section 2680(c). Part III presents the. policy considerations behind the FTCA and concludes that those considerations allow courts to interpret the Act to cover detention-related property damage claims.

Claim Requirements Of The Federal Tort Claims Act: Minimal Notice Or Substantial Documentation?, Michigan Law Review

Michigan Law Review

This Note finds both the Adams and Swift positions unsatisfactory. Part I contends that Adams misconstrued the legislative history of the FTCA amendments by applying a minimal notice standard and then argues that Swift contravenes the amendments' fairness policy by permitting ambiguous, overreaching documentation requests. Part II contends that courts should interpret section 2675's "presented the claim" language as an accommodation between two competing Congressional objectives: presuit claims settlement and fair treatment of claimants. The Note proposes that until the Department of Justice modifies its current claims regulations, courts should toll the statute of limitations whenever an individual's claim includes …

Denial Of Atomic Veterans' Tort Claims: The Enduring Fallout From Feres V. United States, J. Thomas Morina

William & Mary Law Review

No abstract provided.

Toxic Substances Litigation In The Fourth Circuit, Francis E. Mcgovern

University of Richmond Law Review

Personal injuries caused by toxic substances have generated problems of major concern to our social, political and legal systems. Reports in the news media concerning harm caused by toxic substances and expressions of public awareness of potential dangers associated with exposure to toxic substances are commonplace. Legislatures, administrative agencies and courts at both federal and state levels have begun to devote substantial energy to addressing issues raised by exposure to toxic Substances. Scientific, industrial, financial, and legal communities are seeking to deal with these problems from a number of different perspectives. Just as terms such as "Love Canal" and "asbestosis" …

Constitutional Torts And The Federal Torts Claims Act, Michael W. Dolan

University of Richmond Law Review

The relatively recent expansion of the liability of federal employees for so-called constitutional torts and the accompanying contraction of the immunity of those employees against suits for such torts have resulted in significant problems for the federal government, its employees, and even for victims of official misconduct. After briefly describing the law of constitutional torts and official immunity, this article will examine a proposal to amend the Federal Tort Claims Act to make the Government the exclusive defendant in constitutional tort suits.

From Feres To Stencel: Should Military Personnel Have Access To Ftca Recovery, Michigan Law Review

Michigan Law Review

This Note reevaluates the Feres doctrine in light of legal developments of the past three decades. It concludes that the FTCA should be extended to military claims. It discusses the arguments that military claims will burden vital government functions and shows that the exception to liability under the present FTCA, particularly the exception for "discretionary actions" by government employees, would adequately protect all legitimate military interests.

Loe V. Armistead: The Availability Of An Alternative Remedy As A Bar To Extending Bivens, Ralph G. Santos

William & Mary Law Review

No abstract provided.

Integrating Governmental And Officer Tort Liability, George A. Bermann

Faculty Scholarship

The legislative and judicial dismantling of sovereign immunity is among the more significant and celebrated reforms of recent American administrative law. In many instances, this development has given those seeking damages for wrongful governmental action their first and only defendant. Even in situations in which litigants already had a cause of action against individual public officials, making the government amenable to suit has enhanced the chances of actual recovery, since officials often lack the means to satisfy judgments rendered against them. The immunity from liability enjoyed by public officials also has undergone a complex series of changes. Though still in …

Liability Of The United States For Maritime Torts, Walkley E. Johnson Jr.

University of Richmond Law Review

The United States Government owns and operates by far the largest fleet in the Americas. It is a fleet which includes not only the high profile carriers, cruisers and destroyers but a miscellany of tugs, barges, tankers, frigates, car floats and lighters. It includes cargo vessels as well as warships. Thus, the potential for the commission of maritime torts is manifest simply from the number and variety of government vessels at sea. Add the myriad responsibilities exercised by Government agencies such as the United States Coast Guard, and the potential for tortious involvement is enormous.

Torts- State Tort Immunity Extended To Administrators And Intern Of State Supported Hospital

University of Richmond Law Review

The doctrine of sovereign immunity as developed in England and adopted in the United States has its roots in feudalism. While it is not clear how this monarchistic doctrine came to be adopted in the new and belligerently democratic republic of America, it has become firmly entrenched in our jurisprudential system. Sovereign immunity as applied to tort actions means that the state, in consequence of its sovereignty, is immune from liability for negligence, except where it has expressly waived immunity by legislative enactment or judicial decision. While the Federal Tort Claims Act waives federal tort immunity in certain situations, the …

The Federal Tort Claims Act: A Substantive Survey, Robert N. Johnson

University of Richmond Law Review

The enactment of the Federal Tort Claims Act (FTCA) on August 2, 1946, provided the most comprehensive waiver of sovereign immunity encountered in the Federal Claims System.

Workmen's Compensation - Recovery For Federal Prisoners Under Federal Torts Claims Act - 87 S. Ct. 382 (1966), Robert P. Kahn

William & Mary Law Review

No abstract provided.